"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Rev. Craig Mousin Ombudsperson Refugee and Forced Migration Studies, Grace School of Applied Diplomacy DePaul University PHOTO: DePaul Website
Craig writes:
We just posted our latest podcast urging folks to email or call Congress to stop Title 42, “Do Not Let Summer Daze Turn Pretense Into Law: End Title 42.”
Title 42 is a total, disgraceful fraud that violates U.S. and international law, abuses (and sometimes kills) vulnerable refugees seeking to exercise legal rights, and turns immigration policy over to cartels and human smugglers
Shockingly, instead of standing up for due process, human rights, and the rule of law, horrible right-wing Federal Judges have gone along with this farce at the urging of GOP White Nationalist state AGs.
GOP political hacks and their enabling bad righty Federal Judges have combined to wreak havoc on humanity and trample the Constitution, rule of law, common sense, and simple human decency at our Southern border! Albrecht Dürer, Public domain, via Wikimedia CommonsProfessor Stephen Yale-Loehr Cornell Law
In 2015, a Ghanaian man who goes by the initials M.A. and his gay friend were brutally assaulted by a vigilante group in Accra, Ghana. In Ghana, homosexuality is illegal and carries a prison sentence of up to three years. M.A. was beaten with sticks before escaping through a window. His friend was killed. Fearing the group would find and kill him, he fled to Ecuador and made his way to the U.S. border, where he requested asylum. After being detained for nine months, he was released on bond and lived with a childhood friend in New York while he waited for his case to make it through the legal system.
M.A. clearly faced persecution, but an immigration judge denied his claim. I took M.A.’s appeal to the Board of Immigration Appeals in 2016 as part of the Cornell Law School’s asylum appeals clinic. It took M.A. four years to win asylum in America, but at least he was given the chance to apply in the first place.
Since March 2020, approximately 900,000 people — including over 215,000 parents and children — have been denied the ability to request asylum at all. They’re casualties of Title 42, a pandemic-related policy that paused nearly all asylum proceedings at the border. Some people argue the policy is preventing an influx of migrants. In fact, numbers are up despite the policy, and our refusal to process most of them has led to chaotic and dangerous conditions.
The United States has successfully managed ebbs and flows of asylum seekers for decades. There’s a system in place to manage an influx — and regardless of how hard immigration lawyers like me fight for them to stay, many will lose their case and be deported. Even so, we must let people try. It’s not only the right thing to do, it’s also guaranteed under international and domestic law. We signed a 1967 protocol to the U.N. Refugee Convention to protect the rights of refugees, and we have adopted it and codified it into U.S. asylum law. Right now, we’re violating those obligations. The longer we do, the weaker American rule of law looks to our global partners.
We must immediately reinstate due process for asylum seekers. And once this happens, we must work to make the system more equitable and faster.
. . . .
****************************
Read Steve’s complete op-ed in The Hill at the link.
I agree that “we must work to make the system more equitable and faster.” But, the answer can’t be just to hire more Immigration Judges in Garland’s dysfunctional, broken, and anti-asylum-biased “court” system. That would just speed the “deportation assembly line” and lead to even more injustice and grotesque inconsistencies.
According to TRAC, Immigration Judge “asylum denial rates” currently “range” from 5% to 100%. That’s a ridiculous, indefensible variation and a total perversion of the generous standard for granting asylum set forth by the Supremes in Cardoza-Fonseca and adopted by the BIA in Matter of Mogharrabi, but seldom enforced or followed, particularly these days.Why this very obvious, totally solvable problem is still festering going on two years into a Democratic Administration that pledged to solve it is beyond me!
Enough of this nonsense, biased, “amateur night at the Bijou” mal-administration of the Immigration Courts at EOIR by Garland’s DOJ! No wonder folks are still complaining about “Refugee Roulette” more than a decade after it was written by my Georgetown Law colleagues Professors Phil Schrag, Andy Schoenholtz, and Jaya Ramji-Nogales (now an Associate Dean at Temple Law). Why not put one of THEM, or for that matter, Professor Yale-Loehr, in charge of kicking tail and cleaning out the deadwood at EOIR?
This approach to life or death asylum adjudication at EOIR, particularly the BIA, is a killer! PHOTO: Thomas Hawk Creative Commons Amateur Night
At a minimum Garland must:
Remove the holdover “Asylum Deniers Club” from the BIA and replace them with a real judge as Chair and new Appellate Immigration Judges who are widely recognized as “practical experts” with careers that have demonstrated superior scholarship in immigraton and human rights, an unswerving commitment to due process for individuals, and a passion for racial justice in our legal system;
Have the “New BIA” issue useful precedential guidance on how to document and grant valid asylum cases at both the Asylum Office and the Immigration Court, implement best practices, and identify and remove from future asylum adjudication those unqualified Immigration Judges who basically “make up” reasons to deny and can’t or won’t treat applicants fairly; and
Immediately replace with qualified expert judges those Immigration Judges on the “Southern Border docket” who can’t fairly adjudicate asylum cases.
Steve is totally correct about the need for Title 42 to go! But, Garland’s EOIR, particularly the BIA, is just as broken, counterproductive, and out of control as Title 42! In many ways, the illegal abrogation of the rule of law at the Southern Border has somewhat ”hidden” the larger problem that a dysfunctional and incapable EOIR poses for those who do manage to get a hearing!
Without a legitimate, totally reformed and significantly “re-populated” EOIR operating at the “retail level” of our justice system, there will be no rule of law and equal justice under law in America — for anyone!
Tell Garland you have had enough! The deadly and disorderly “EOIR Clown Show” has got to go! Now!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Through our reporting, we exclusively learned that U.S. Customs and Border Protection quietly changed last year how they count deaths on the border to only include deaths in custody, during arrests or when agents were nearby and there were 151 such “CBP-related” deaths in the 2021 fiscal year.
We are still reporting on this and other issues of course, so please keep in touch with tips and story ideas!
Thanks, Mica. “Tune in” to the full “multimedia report” referenced by Mica at the above link to Reuters.
No amount of statistical hocus-pocus or nativist BS can hide the stain of these deadly, yet ultimately ineffective, border enforcement policies. It’s important that the names and actions of the politicos, bureaucrats, and bad judges who promote and encourage deadly violations of human rights, and their media apologists, be preserved and documented for history!
As we can see, there are, and will continue to be, concerted efforts to “cover up,” deny, and misrepresent the deadly effects of bad border policies! “Dehumanization of the other,” actively promoted by Trumpists and other White Nationalist GOP pols and their hand picked Federal Judges is a crucial first step!
Americans should be able to sponsor refugees who can stay permanently
The U.S. does too little for too few, but Canada has a program worth adopting and improving
Perspective by l
July 18, 2022 at 5:00 a.m. EDT
The war in Ukraine has created one of the biggest refugee crises since World War II, with about 7 million people fleeing the country. While some have since returned, and some have settled elsewhere in Europe, there are still many in need of a permanent haven. Unfortunately, the American refugee system is proving to be of comparatively little help.
Even before President Donald Trump, the refugee resettlement process was slow and cumbersome, but Trump made things much worse by slashing the annual refugee quotas to a low of 18,000 for fiscal 2020 and 15,000 for fiscal 2021, before Biden increased it, which in turn led many resettlement organizations to shut down or scale back. President Biden raised the 2021 cap to 62,500 in May of that year — and set a cap of 125,000 for 2022 — but has not been able to restore the resettlement infrastructure that Trump undercut. As a result, the higher quotas remain largely unfilled, with a record-low 11,411 refugees admitted in 2021, even though many more would love to come. Even in the current fiscal year, the administration expects to fall far short of its target, Axios reports.
The Biden administration has tried to ease the logjam — at least for Ukrainian victims of Russian aggression — by creating the Uniting for Ukraine program, under which private citizens can sponsor Ukrainian refugees. Ukrainians wishing to enter must first get a U.S.-citizen sponsor, who has to prove that they can financially support the new arrival for two years; they must also pass certain health and security checks. The Ukrainians can seek permission to work but may stay for only two years. U.S. sponsors have filed applications on behalf of some 60,000 Ukrainians under this policy. The administration has pledged to help at least 100,000 Ukrainians relocate overall.
The program is a decent start, but it could be improved by adapting a similar, better-run Canadian program.
Since 1979 — inspired by the massive numbers of people displaced by the Vietnam War and its aftermath — Canada’s Private Sponsorship of Refugees program has allowed ordinary people and community groups to support refugees financially and otherwise for 12 months (or until the refugee is self-sufficient, whichever comes first). Sponsors can include private citizens working together (a “Group of Five”) or a group that holds a sponsorship agreement with the Canadian government, such as a religious institution or cultural organization. In an important contrast with the U.S. program, the refugees can stay permanently after the sponsorship period, and the program is not limited to people from specific nations. The combination of monetary assistance with more personal support, such as helping refugees find language classes or sign their children up for schools, gives the refugees a chance to hit the ground running. The recipients of private aid must be a refugee as defined by the United Nations (or according to a few other criteria). In 2022, Canada’s target number for privately sponsored refugees is 31,255, while the goal for government-sponsored refugees is 19,790. Relative to Canada’s population size — just over a tenth that of the United States — these figures are several times higher per capita than Biden’s unmet quota of 125,000.
. . . .
******************
Read the full article at the link.
Creative “out of the box” thinking, innovation, practical solutions, expertise, bold moves, and moral courage have been largely lacking in the Biden Administration’s approach to refugees and asylees.
While the authors seem largely focused on the plight of Ukrainian refugees, there is no reason why their proposal couldn’t be used for many refugees of color from Haiti, Latin America, and elsewhere at the Southern border.
Additionally, there are no known legal avenues for racist GOP AGs and GOP scofflaw Federal Judges to successfully challenge refugee admissions. Doesn’t mean they won’t try. But, the DOJ should be able to fend off the effort.
Undoubtedly, out of control righty judges have helped GOP states with ugly White Nationalist xenophobic agendas to improperly seize control of immigration policy from Congress and the Executive. https://www.cbsnews.com/news/immigration-biden-republican-states-lawsuits/. Their target — individuals of color and women — is clear.
The result — an ungodly mess that empowers cartels and smugglers while putting “life or death” decisions in the hands of lower level bureaucrats who can act arbitrarily and without effective guidance — is totally unacceptable and a mockery of the rule of law. The Administration must use every tool at its disposal to resist this dangerous right-wing judicial overreach that undermines democracy.
Is she the “Debbie Anker of Entertainment?” PHOTO: Mason Poole, CC BY 4.0 <https://creativecommons.org/licenses/by/4.0>, via Wikimedia Commons
Hon. “Sir Jeffrey” S. Chase writes:
What a beautiful tribute to a true giant and hero. I can’t even begin to state the influence Debbie has had on me. But think of how many NDPA heroes out there are former students of hers, and how many immigration law clinics around the country relied on Debbie’s clinic at Harvard as its model. It’s impossible to overstate her impact.
Clinical Professor Deborah Anker LL.M. ’84, ‘one of the architects of modern refugee law’ and founder of the Harvard Immigration and Refugee Clinical Program, moves to emerita status
By Debbie/HLS Correspondent, July 20, 2022
Credit: Kathleen Dooher
As Harvard Law School Clinical Professor Deborah Anker LL.M. ’84 moves to emerita status, she and her many students and colleagues can reflect on her formidable record of achievement — as a pioneer in the study of refugee and asylum law, the author of the seminal text on the subject, and a tireless advocate for the rights of refugees, particularly women and children. As her former student Molly Linhorst ’16 puts it — quoting a sentiment voiced by many of Anker’s admirers — “She’s the Beyoncé of asylum law.”
“As founding director of the Harvard Immigration and Refugee Clinic, Deborah Anker has played a pivotal role at Harvard Law School, not only by founding our clinic but in helping build our clinical program,” Harvard Law School Dean John F. Manning ’85, the Morgan and Helen Chu Dean and Professor of Law at Harvard Law School. “Her work in the clinic enabled countless clients to enjoy freedom and escape persecution by remaining in the U.S., and she trained and inspired scores of other lawyers to work to those same ends.”
“Debbie wins the prize for tenacity in terms of standing up for refugee rights in America,” says James Hathaway, prominent international refugee law scholar and founding director of Michigan Law’s Program in Refugee and Asylum Law. “Literally nobody has fought the good fight as often as she has done. But she is also an intellectual trailblazer, having, in particular, developed a gender-inclusive understanding of refugee status, and having made the case for the alignment of American understandings of asylum with our international obligations. She truly is a hero.”
Groundbreaking scholarship and litigation
A pioneer in the development of clinical legal education in the immigration field, Anker joined the Harvard Law faculty in the early ’80s, as a lecturer on law and later clinical professor of law in 2008. Along with her colleagues Nancy Kelly and John Wilshire-Carrera, Anker founded the Harvard Immigration and Refugee Clinical Program, or HIRC, which has since become a model for similar clinics nationwide. Her book, “Law of Asylum in the United States,” first published in 1998 under the editorship of former student Paul Lufkin and now updated annually with a cadre of HLS student editors, remains the key authoritative text in the area. She also has authored numerous amicus curiae briefs in major refugee litigation, served as an expert witness before national and international fora, and helped draft national gender refugee guidelines.
Harvard Law Clinical Professor Sabrineh Ardalan ’02, Anker’s former student and the current faculty director of HIRC, credits its significant expansion over the decades to Anker’s “commitment to advocating for immigrants’ rights and dedication to responding to the evolving challenges facing immigrants and refugees in the U.S.”
In addition to the clinical work at Greater Boston Legal Services, overseen by Kelly and Willshire Carrera, “HIRC now includes two clinics, a student practice organization [SPO], and the Harvard Representation Initiative, which serves members of the Harvard community whose immigration status is at risk. In addition to the flagship Immigration and Refugee Advocacy Clinic, there is now a Crimmigration Clinic, led and directed by Phil Torrey, which focuses on cutting-edge appellate and district court advocacy at the intersection of immigration and criminal law. And through the HLS Immigration Project, the student-practice organization, students can hit the ground running with hands-on immigration and refugee advocacy their 1L year,” said Ardalan. “Debbie built a team at HIRC that now supervises over 140 HLS students each year through the two clinics and SPO and in so doing, centered immigration and refugee law as a core component of HLS’s clinical program.”
Credit: Tsar Fedorsky Anker (left) in 2011 with HIRC students Gianna Borotto ’11 and Defne Canset Ozgediz ’11, and Sabrineh Ardalan ’02. Ardalan is Anker’s former student and the current faculty director of HIRC.
Committed to justice from an early age
Raised in New York, Anker graduated magna cum laude from Brandeis University, and went on to earn her J.D. from Northeastern before continuing her legal studies at Harvard. Even before she began formal studies, Anker was invested in the study of and advocacy for human rights. She credits that in large part to her family history and values: Her Jewish grandparents crossed the Atlantic to escape the persecution leading to the Holocaust, and both of her parents were committed public school educators. Her father was a New York City Schools chancellor during desegregation. “The belief in the equality of all people was central to how I was raised,” she said.
“From my family I got deep beliefs and commitment to anti-racism. I have a strong memory of my father telling me about Ralph Bunche, a Nobel Peace Prize recipient, one of the founders of the United Nations, leading actor in the mid-20th-century decolonization process and U.S. civil rights movement, and recipient of the Presidential Medal of Freedom,” said Anker. According to her father, Anker reports, Bunche was discriminated in obtaining housing, and refused membership in a neighboring tennis club in the area of Queens where Anker’s family moved in her early teenage years. “That was something that stuck with me,” she said. Early in her legal career, Anker represented a Black family that had moved into Dorchester during desegregation and was subject to violent attacks; this was one of the cases covered in J. Anthony Lukas’ classic 1985 book, “Common Ground.” “For me personally, a commitment to racial justice was central to my identity,” she says.
Anker credits the late Harvard Law School public interest professor Gary Bellow ’60, founder and former faculty director of Harvard Law School’s clinical programs, with advising, advocating and paving the way for her engagement in clinical education at the law school.
She also credits the ‘extraordinary determination and integrity’ of Lisa Dealy, former assistant dean of clinical education, with whom Anker worked closely, in helping to expand the school’s clinical program.
In 1984, when Anker, along with Kelly and Willshire Carrera founded the Immigration and Refugee Advocacy Clinic, the study of immigration law was still in its infancy, and clinical education was relatively new in legal education.
And, according to Kelly, Anker was writing the law from the beginning. “The article she co-authored on the legislative history of the Refugee Act [and] shaped how that law would be interpreted, with the U.S. Supreme Court citing it in support of an internationalist approach to refugee and asylum law, grounded in our treaty obligations, as signatories to the U.N. Protocol relating to the Status of Refugees,” said Kelly. “She authored some of the first empirical studies of immigration adjudication and co-authored the first study of the expedited removal process for addressing the claims of asylum seekers at the U.S. border.”
According to Willshire Carrera, Anker “believes in bringing the reality of the law as it is experienced by real people into the classroom and into scholarship. We developed an approach of ‘legal change from the bottom up,’ changing ground-level legal institutions, which set the stage for changes at higher levels, including in precedent decisions in the federal courts.” From its earliest years, HIRC worked to bring administrative decision-making out of the shadows, publishing administrative asylum decisions, which were otherwise inaccessible to advocates and researchers.
During these early years, Anker also worked with Hathaway, who developed a structured human rights approach to interpretation of refugee law, an approach HIRC would adopt including in much of its women’s refugee work.
Credit: Kris Snibbe/Harvard Staff Photographer Anker (pictured here in 2014) with (from left) Julina Guo ’14, John Wilshire Carrera, and Nancy Kelly. Wilshire Carrera and Kelly founded the Harvard Immigration and Refugee Clinic with Anker in 1984.
Anker’s background in racial justice led her to work with Haitian refugees beginning in the mid 1980s. “I got to know civil rights lawyer Ira Kurzban, who was leading the charge on behalf of Haitian refugees fleeing a horrible and violent dictatorship, which the U.S. had backed.” Among other work, Kurzban engaged Anker as an expert witness on U.S. asylum law, in challenges he brought based on discriminatory detention and treatment generally of Haitian refugees. She would continue to be called in as an expert, including later in challenges brought by Canadian NGOs in 2005 and 2017 to exclusionary policies of the Canadian government, refusing entry to asylum seekers coming from the U.S. under the Safe Third Country Agreement.
The Canadian Supreme Court will soon issue a ruling on whether the Canadian policy of returning asylum seekers to the U.S. complies with the Canadian Charter and international law. Canadian attorney Andrew Bouwer praised Anker’s work on the Safe Third Country Agreement and says he looks forward to her continued advocacy on these issues. “Professor Anker is a force of nature! Working with her on Canada-US border issues, especially the inhumane Canada-U.S. Safe Third Country Agreement, these past 17 years has been an incredible honor and a highlight of my practice.”
Also in the 1980s, Anker helped found the Boston Committee against Deportation, defending a group of Haitians who were arrested by immigration authorities as they attempted to organize a union at Faneuil Hall market place.
HIRC continued this work with Haitian refugees who fled again during the 1990s after the violent overthrow of Haiti’s first democratically elected president, Jean Bertrand Aristide. HIRC’s early engagement with Haitian refugees led to groundbreaking work on gender asylum. “After President Aristide was deposed, there were security forces who went into women’s houses (the men had mostly fled) and raped them, because they were known, or assumed to be, supporters of Aristide,” explained Anker. “So it was really rape used as punishment based on ‘political opinion,’ one of the grounds of protection in the refugee treaty to which the U.S. is a party.”
Working in conjunction with other groups, HIRC got the administrative Board of Immigration Appeals to recognize that this was a form of what the agency called “grievous harm,” which HIRC argued fit the concept of persecution. “This case, Matter of D.V., was the first administrative gender asylum decision; along with others, we were able to convince the board to publish it as a precedent decision,” said Anker.
Meanwhile, the group traveled to Haiti to collect affidavits; their work ultimately led the Inter-American Commission on Human Rights to make the first finding by an international human rights body that rape could constitute torture.
This in turn contributed to greater global awareness of violence against women within a human rights framework. Canadian NGOs and academics took the lead, particularly through the Canadian Immigration and Refugee Board. “The Canadians worked up an amazing series of guidelines, and we [the HIRC] took those and adapted them to American law,” Anker said. “We published these and asked the U.S. government to take our guidelines and issue official government guidelines, based on them — and in fact, they did that.” Later, HIRC led a major amicus effort, drafting a brief to the then-attorney general signed by 187 organizations and individuals, arguing that violence against women in the “domestic” sphere, that is, in the home by sexual intimates, could be the basis for protection. Eventually the attorney general reversed an original denial and the petitioner, represented by the Center for Gender and Refugee Studies, was granted asylum.
(HIRC was) committed to having legal education grounded in actual clients’ experiences of persecution. … We set a precedent that law school clinics are not just a place to do policy work or major litigation, but also a place to engage with clients, to get to know them and to help them articulate their experiences. … I am grateful to the law school for allowing us to advance that approach to legal advocacy and education.
Deborah Ankernone
Personal involvement became key in Anker’s approach to teaching. “We were committed to having legal education grounded in actual clients’ experiences of persecution. Students represented clients and learned to help them tell their stories. We then gave them the time to reflect in class and to write about it. We set a precedent that law school clinics are not just a place to do policy work or major litigation, but also a place to engage with clients, to get to know them, and to help them articulate their experiences,” said Anker. “I am grateful to the law school for allowing us to advance that approach to legal advocacy and education. We now have such a rich and diverse clinical education program at the law school, which has developed in many different directions – client work, policy advocacy, regulatory reform, as well as litigation.”
Anker also points to the clinic’s work with the United Nations High Commissioner for Refugees (UNHCR) to develop general guidelines for international refugee law.
“My perception was that few academics and major practitioners around that time, the mid to late 1990’s, were thinking conceptually about this. Jim Hathaway’s work was a major force in bringing a principled, and importantly structured, human rights approach to interpretation of refugee law,” said Anker. “We got the UNHCR to adopt general guidelines recognizing gender itself as a category of protection within the refugee treaty’s ‘particular social group’ ground. In the amicus work we have done over the years, we have stuck to this approach and increasingly federal courts as well as some administrative decision makers are recognizing that gender itself can be a basis for protection, including in the ground-breaking 2020 First Circuit decision in De Pena-Paniagua v.Barr, which directly adopted language from HIRC’s lead amicus brief.”
HIRC has continued to expand its scope, working in recent years with students who were eligible for DREAM Act protection. Most recently, Anker and the group have worked on climate change and refugee law, pushing for interpretations of the law to account for the large-scale climate-based displacement that is already occurring in Central America and is expected to worsen. “We need to show decision makers and policy makers that displacement is caused by multitudes of factors and a person can qualify for protection if part of the cause is environmental,” said Anker.
“Our work has always been informed by what is happening,” Kelly said. “The gender work came from a sense of, ‘Where are the women in this system? They don’t seem to be represented’. The Haiti work was geared toward what happened to Haitian women after the coup in 1991. That brought the reality home of what was happening to Haitian women, and got that recognized in a legal context that could then be brought back to cases in the US. The two are integrally connected.”
“We pride ourselves on doing work from the ground up,” Willshire Carrera said. “We’ve had a large number of students who have gone on to be major contributors in the development of asylum law in the country. One thing for sure is that the clinic is now very well recognized. So much of that has to do with Debbie.”
Former students pay tribute
Ardalan, who now directs HIRC, acknowledges a significant personal influence. “Debbie has shaped the course of my life. I have learned so much from her advocacy and scholarship, from her empathy in working with clients, from her tremendous care for her students and colleagues, and from her incredible persistence in continuing to fight against injustice no matter what the odds. She has modeled for me how to approach teaching and lawyering with dedication, humility, strength, and compassion.”
Anker’s influence also goes far beyond Harvard Law School. According to Mark Fleming ’97, who studied with her at Harvard Law and is now a partner at WilmerHale, “Debbie’s contribution to how young lawyers thought about immigration law really can’t be overstated. She was the first person I met at HLS who was not only a gifted academic, but devoted to using her knowledge to represent clients. She used her knowledge to manage a significant group of people who were trying to push immigration law in a good direction and to help people who needed it. That was a new thing to me.”
Fleming currently does pro bono work in the immigration field and cites this as an example of Anker’s influence. “One of the more important lessons she taught me is that immigrants who come to our country are thrown into a very complicated system without anybody to help them. She showed me that things immediately change when a lawyer shows up, so a pro bono lawyer can make an enormous difference.” This, he said, goes back to his days at Harvard Law. “As a law student, the opportunity to walk down the street, to what used to be called Cambridge and Somerville Legal Services, had an impact. First of all, it was terrifying, because I had no idea what to do. But also very rewarding, because people in the system are otherwise forced to navigate it by themselves.”
“Debbie’s seminar influenced the way I think about asylum,” said Fatma Marouf ’02, who now directs the Immigration Rights Clinic at Texas A&M University School of Law. “The way she talked about absorbing each person’s story, I never forgot that. She walked us through each element of her incredible text about the law of asylum, and made sure we had a great understanding of it. She helped us connect the cases we were working on with the thinking behind it. And I loved that she really got in an international perspective — not just U.S. asylum law but how the U.K., Canada, Australia might approach it.”
Marouf particularly credits Anker with emphasizing the connection between asylum and human rights law. “When I teach my own clinic I talk about the importance of bringing in a comparative perspective of what asylum should be, versus how it is — and that’s all Debbie’s. I don’t know if I could have gone into immigration law without her, much less fallen in love with teaching.”
Credit: Brooks Kraft
“She built a program at a time when immigration clinics were not found at many law schools,” said David B. Thronson ’94, who went on to teach international human rights law at Michigan State University. “Part of what impressed me from the beginning is that her work is absolutely compelling and consequential; it changes peoples’ lives. You’re talking about people who are going to face persecution in their home countries if they are returned. It’s not an equal fight, the stakes and the consequences are high and their resources are often minimal; the government is always well represented but the migrant seldom is. To find someone with Debbie’s expertise and willingness to take on those issues — and who is also a tremendously human person that you can get to know — makes a huge difference, and it was a really defining law-school experience for me.”
That experience stuck with Thronson through his career. “I got the realization that things could go together; I could be a professor and still make a difference in the real world, representing clients — and hopefully I can do that in a way that lets my students grow and have good experiences. Debbie taught me that those aren’t mutually exclusive things to do.”
Another former student, Rebecca Sharpless ’94, now directs the immigration clinic at the University of Miami School of Law. “Debbie was the single most influential professor during my time at HLS. As I started my first year, I knew that I wanted to be a social justice lawyer, but I didn’t know what kind. Debbie taught me the urgency and importance of working with immigrants. Her work on some of the most difficult issues relating to the protection of refugees has been pathbreaking, but to me she is first and foremost a teacher and mentor. Under her guidance, I argued in immigration court, organized a trip to Miami to help Haitian refugees, and contributed to federal court briefing. Without a doubt, she made me into the immigration lawyer and teacher that I am today.”
Looking back on a lifetime of impact
Anker has been designated a Woman of Justice by the Massachusetts Bar Association, and in 2011 was elected as a fellow to the American Bar Foundation. The HIRC’s Women’s Refugee Project, which spearheaded work on gender asylum, received the American Immigration Lawyers Association’s (AILA) most prestigious “Founders Award.” HIRC also received AILA’s Human rights award for its work in clinical legal education and advocacy on behalf of refugees. Anker has received AILA’s Elmer Fried Excellence in Teaching Award; two awards for gender asylum work from the Federal Bar Association; the Massachusetts Governor’s New American Appreciation Award; and the CARECEN Award from the Central American Refugee Center.
Presenting her with the latter honor, lead attorney Patrick Young called Anker “one of the architects of modern refugee law. She really defined the field from its inception and her essays and her seminal treatise, ‘Law of Asylum in the United States,’ have helped educate and train two generations of asylum lawyers. Without her thoughtful guidance, it is doubtful CARECEN and many other refugee defense programs could have succeeded in protecting the persecuted as effectively as we have.”
In addition to those already mentioned, Anker notes that “HIRC and I are so fortunate to have on staff attorneys Sameer Ahmed, Jason Corral, Tiffany Lieu, Mariam Liberles and Cindy Zapata. HIRC’s staff also includes our head of social work, Liala Buoniconti; paralegal Karina Buruca; Mary Hewey; and Anna Weick, our chief administrator.” Anker credits her faculty assistant, Sophie Jean, as being an incredible resource, organizing work on “Law of Asylum” research with students, among other invaluable assistance. “Not much can be accomplished without her amazing intelligence and commitment, and of course thank you to those who have come and gone like the incomparable Jordana Arias, a force of nature, and all my assistants going way back to wonderful Delona Wilkins.”
In entering emerita status, Anker reflects back with much gratitude at the opportunities she has been given. “I love this community and I love this work. It truly has been an honor. I am so very grateful.”
***************************
Thanks and many congrats, Debbie, my long-time friend, for all you have done for due process, justice, humanity, and the future generations of the “New Due Process Army!” I wholeheartedly concur in the comments of my friend and Round Table colleague “Sir Jeffrey!” Through your intellectual brilliance, moral courage, extraordinary leadership, and ability to teach and inspire others, you have certainly left a permanent mark on the worldwide, eternal quest for justice!
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BIDEN ET AL. v. TEXAS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 21–954. Argued April 26, 2022—Decided June 30, 2022
In January 2019, the Department of Homeland Security began to implement the Migrant Protection Protocols (MPP). Under MPP, certain non-Mexican nationals arriving by land from Mexico were returned to Mexico to await the results of their removal proceedings under section 1229a of the Immigration and Nationality Act (INA). MPP was implemented pursuant to a provision of the INA that applies to aliens “arriving on land . . . from a foreign territory contiguous to the United States” and provides that the Secretary of Homeland Security “may return the alien to that territory pending a proceeding under section 1229a.” 8 U. S. C. §1225(b)(2)(C). Following a change in Presidential administrations, the Biden administration announced that it would suspend the program, and on June 1, 2021, the Secretary of Homeland Security issued a memorandum officially terminating it.
The States of Texas and Missouri (respondents) brought suit in the Northern District of Texas against the Secretary and others, asserting that the June 1 Memorandum violated the INA and the Administrative Procedure Act (APA). The District Court entered judgment for respondents. The court first concluded that terminating MPP would violate the INA, reasoning that section 1225 of the INA “provides the government two options” with respect to illegal entrants: mandatory detention pursuant to section 1225(b)(2)(A) or contiguous-territory re- turn pursuant to section 1225(b)(2)(C). 554 F. Supp. 3d 818, 852. Be- cause the Government was unable to meet its mandatory detention obligations under section 1225(b)(2)(A) due to resource constraints, the court reasoned, terminating MPP would necessarily lead to the systemic violation of section 1225 as illegal entrants were released into the United States. Second, the District Court concluded that the June 1 Memorandum was arbitrary and capricious in violation of the APA.
2
BIDEN v. TEXAS Syllabus
The District Court vacated the June 1 Memorandum and remanded to DHS. It also imposed a nationwide injunction ordering the Government to “enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under [section 1225] without releasing any aliens because of a lack of detention re- sources.” Id., at 857 (emphasis in original).
While the Government’s appeal was pending, the Secretary released the October 29 Memoranda, which again announced the termination of MPP and explained anew his reasons for doing so. The Government then moved to vacate the injunction on the ground that the October 29 Memoranda had superseded the June 1 Memorandum. But the Court of Appeals denied the motion and instead affirmed the District Court’s judgment in full. With respect to the INA question, the Court of Ap- peals agreed with the District Court’s analysis that terminating the program would violate the INA, concluding that the return policy was mandatory so long as illegal entrants were being released into the United States. The Court of Appeals also held that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.’ ” 20 F. 4th 928, 951.
Held: The Government’s rescission of MPP did not violate section 1225 of the INA, and the October 29 Memoranda constituted final agency action. Pp. 8–25.
(a) Beginning with jurisdiction, the injunction that the District Court entered in this case violated 8 U. S. C. §1252(f )(1). See Garland v. Aleman Gonzalez, 596 U. S. ___, ___. But section 1252(f )(1) does not deprive this Court of jurisdiction to reach the merits of an appeal even where a lower court enters a form of relief barred by that provision. Section 1252(f )(1) withdraws a district court’s “jurisdiction or authority” to grant a particular form of relief. It does not deprive lower courts of all subject matter jurisdiction over claims brought under sections 1221 through 1232 of the INA.
The text of the provision makes that clear. Section 1252(f )(1) deprives courts of the power to issue a specific category of remedies: those that “enjoin or restrain the operation of ” the relevant sections of the statute. And Congress included that language in a provision whose title—“Limit on injunctive relief ”—makes clear the narrowness of its scope. Moreover, the provision contains a parenthetical that explicitly preserves this Court’s power to enter injunctive relief. If section 1252(f )(1) deprived lower courts of subject matter jurisdiction to adjudicate any non-individual claims under sections 1221 through 1232, no such claims could ever arrive at this Court, rendering the specific carveout for Supreme Court injunctive relief nugatory.
Cite as: 597 U. S. ____ (2022) 3 Syllabus
Statutory structure likewise confirms this conclusion. Elsewhere in section 1252, where Congress intended to deny subject matter jurisdiction over a particular class of claims, it did so unambiguously. See, e.g., §1252(a)(2) (entitled “Matters not subject to judicial review”). Finally, this Court previously encountered a virtually identical situation in Nielsen v. Preap, 586 U. S. ___, and proceeded to reach the merits of the suit notwithstanding the District Court’s apparent violation of section 1252(f )(1). Pp. 8–13.
(b) Turning to the merits, section 1225(b)(2)(C) provides: “In the case of an alien . . . who is arriving on land . . . from a foreign territory contiguous to the United States, the [Secretary] may return the alien to that territory pending a proceeding under section 1229a.” Section 1225(b)(2)(C) plainly confers a discretionary authority to return aliens to Mexico. This Court has “repeatedly observed” that “the word ‘may’ clearly connotes discretion.” Opati v. Republic of Sudan, 590 U. S. ___, ___.
Respondents and the Court of Appeals concede that point, but urge an inference from the statutory structure: because section 1225(b)(2)(A) makes detention mandatory, they argue, the otherwise- discretionary return authority in section 1225(b)(2)(C) becomes mandatory when the Secretary violates that mandate. The problem is that the statute does not say anything like that. The statute says “may.” If Congress had intended section 1225(b)(2)(C) to operate as a mandatory cure of any noncompliance with the Government’s detention obligations, it would not have conveyed that intention through an unspoken inference in conflict with the unambiguous, express term “may.” The contiguous-territory return authority in section 1225(b)(2)(C) is discretionary—and remains discretionary notwithstanding any violation of section 1225(b)(2)(A).
The historical context in which section 1225(b)(2)(C) was adopted confirms the plain import of its text. Section 1225(b)(2)(C) was added to the statute more than 90 years after the “shall be detained” language that appears in section 1225(b)(2)(A). And the provision was enacted in response to a BIA decision that had questioned the legality of the contiguous-territory return practice. Moreover, since its enactment, every Presidential administration has interpreted section 1225(b)(2)(C) as purely discretionary, notwithstanding the consistent shortfall of funds to comply with section 1225(b)(2)(A).
The foreign affairs consequences of mandating the exercise of contiguous-territory return likewise confirm that the Court of Appeals erred. Interpreting section 1225(b)(2)(C) as a mandate imposes a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico, one that Congress likely did not intend section 1225(b)(2)(C) to impose. And finally, the availability of parole as an
4
BIDEN v. TEXAS Syllabus
alternative means of processing applicants for admission, see 8 U. S. C. §1182(d)(5)(A), additionally makes clear that the Court of Ap- peals erred in holding that the INA required the Government to continue implementing MPP. Pp. 13–18.
(c) The Court of Appeals also erred in holding that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.’ ” 20 F. 4th, at 951. Once the District Court vacated the June 1 Memorandum and remanded to DHS for further consideration, DHS had two options: elaborate on its original reasons for taking action or “ ‘deal with the problem afresh’ by taking new agency action.” Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___, ___. The Secretary selected the second option from Regents: He accepted the District Court’s vacatur and dealt with the problem afresh. The October 29 Memoranda were therefore final agency action for the same reasons that the June 1 Memorandum was final agency action: Both “mark[ed] the ‘consummation’ of the agency’s decisionmaking process” and resulted in “rights and obligations [being] determined.” Bennett v. Spear, 520 U. S. 154, 178.
The various rationales offered by respondents and the Court of Ap- peals in support of the contrary conclusion lack merit. First, the Court of Appeals erred to the extent it understood itself to be reviewing an abstract decision apart from the specific agency actions contained in the June 1 Memorandum and October 29 Memoranda. Second, and relatedly, the October 29 Memoranda were not a mere post hoc rationalization of the June 1 Memorandum. The prohibition on post hoc rationalization applies only when the agency proceeds by the first option from Regents. Here, the Secretary chose the second option from Re- gents and “issue[d] a new rescission bolstered by new reasons absent from the [June 1] Memorandum.” 591 U. S., at ___. Having returned to the drawing table, the Secretary was not subject to the charge of post hoc rationalization.
Third, respondents invoke Department of Commerce v. New York, 588 U. S. ___. But nothing in this record suggests a “significant mis- match between the decision the Secretary made and the rationale he provided.” Id., at ___. Relatedly, the Court of Appeals charged that the Secretary failed to proceed with a sufficiently open mind. But this Court has previously rejected criticisms of agency closemindedness based on an identity between proposed and final agency action. See Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U. S. ___, ___. Finally, the Court of Appeals erred to the extent it viewed the Government’s decision to appeal the District Court’s in- junction as relevant to the question of the October 29 Memoranda’s status as final agency action. Nothing prevents an agency from under- taking new agency action while simultaneously appealing an adverse
Cite as: 597 U. S. ____ (2022) 5 Syllabus
judgment against its original action. Pp. 18–25. 20 F. 4th 928, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. KAVANAUGH, J., filed a concurring opinion. ALITO, J., filed a dissenting opinion, in which THOMAS and GORSUCH, JJ., joined. BARRETT, J., filed a dissenting opinion, in which THOMAS, ALITO, and GORSUCH, JJ., joined as to all but the first sentence.
************************
Credit where credit is due. At least in this particular case, Chief Justice Roberts and the much-maligned Justice Kavanaugh probably have saved many lives of already-born humans.
Breyer’s “Last Hurrah.” I think this was Justice Breyer’s last case, fittingly a victory for reasonableness and humanity. As of noon today, he was succeeded by Justice Ketanj Brown Jackson, the first African American female Justice! Good luck to her. I hope she can convince her right-wing colleagues to “do the right thing” on at least a few cases!
Not out of the woods yet? The case now goes back to to the 5th Circuit and a Trumpy USDJ — not the best forum for asylum applicants seeking justice.
Will they do better? Ending the toxic, inhumane, and ineffective “Remain in Mexico Program” is one thing. Replacing it with a viable asylum adjudication system that will actually efficiently grant protection to the many refugees at our border who have been victims of a biased, anti-asylum, non-expert decision-making process is quite another.It starts with tossing the BIA and the many EOIR Judges who aren’t following asylum law and aren’t able to grant asylum and replacing them with real expert judges who can get the job done, positively guide Asylum Officers, and make sure they follow proper legal interpretations. To date, that’s been something that Garland and the Administration have been unwilling and/or unable to do — at least to the extent required to make due process, fundamental fairness, and the rule of law functional at our borders.
Glimmer of hope (maybe)? In her dissent, Justice Amy Coney Barrett went to great lengths to come up with reasons not to take jurisdiction over this “life or death” matter in its current posture. But, unlike the other three dissenters, she stated that she agreed with the majority “on the merits” of the case. That makes it at least possible that there could be as many as six potential votes for fair and humane treatment of asylum applicantsby the Administration if the jurisdictional hurdle can be overcome. No guarantees. But something to think about — particularly in light of Alito’s snarky, White Nationalist nonsense and anti-immigrant myths reflected in his separate dissenting opinion.
Alioto defines “rock bottom” judicial performance. For example, in the first paragraph of his dissent, Alito says this:
In fiscal year 2021, the Border Patrol reported more than 1.7 million encounters with aliens along the Mexican border.1 When it appears that one of these aliens is not admissible, may the Government simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided?
First he mis-states the law. By no means are all individuals who come to the border or are apprehended in the vicinity thereof entitled to “hearings” on admissibility. All of those without entry documents are subject to summary removal by a DHS Enforcement Agent. Only those who claim a fear of return to their home countries are entitled to an expeditious review of their claims by a (supposedly) well-trained Asylum Officer. Further, only those who establish the necessary “credible fear” of harm (or in some cases a “reasonable fear”) are entitled to have their cases for asylum determined on the merits by either an Asylum Officer or an EOIR Immigration Judge (or both). So, many of those appearing at the border are summarily removed without any hearings at all.
Thousands of those who pass credible fear and are awaiting “merits hearings” are imprisoned in DHS facilities in conditions that probably would fail constitutional scrutiny if applied to convicted felons. Those poor conditions are intended, at least in part, to demoralize and coerce individuals into abandoning claims for protection. They also exponentially decrease the chances of receiving competent pro bono representation and documenting and presenting their cases for life-preserving protection. This is significant, because they too often face EOIR judges with questionable expert judicial qualifications who are essentially “programmed to deny asylum.” Indeed, a “Garland gimmick” for recent arrivals — so-called “expedited dockets” — produced nearly 100% asylum denials as compared with the nationwide rate of 67%. For years, ICE detention centers, many of them operated by private contractors, have been notorious as places “where asylum cases go to die.”
Contrary to the bogus implication of Alito’s statement that one has to “hope” that individuals show up for hearings, many have immigration bonds — some punatively high. When given a chance to obtain qualified representation, and thereby to understand the system and their obligations thereunder, the vast majority of asylum applicants voluntarily appear at their hearings (some many times due to the EOIR practice of “Aimless Docket Reshuffling”), win or lose. And, perhaps not surprisingly, they succeed in winning their cases at rates that are many times higher than those forced to proceed without representation.
Indeed, a government actually interested in making the legal system work, rather than ginning up nativist myths about asylum seekers, would cut the “cruel and inhumane gimmicks” like “Remain in Mexico” and detention in the “New American Gulag” (NAG”) and instead invest in training competent pro bono or “low bono” representatives, temporarily resettling applicants to those jurisdictions with good NGOs and where the Immigration Judges are known to be scholarly and fair in evaluating asylum cases, and replacing poorly qualified Immigration Judges with experts able to competently perform these life or death functions at the “retail level” of our justice system in a fair and efficient matter consistent with due process.
Alito also repeats, apparently for prejudicial dramatic effect, the oft-used but potentially misleading figure of 1.7 million “encounters” by CBP. But, since the legal asylum system at our border was improperly dismantled by the Trump Administration, many of these represent the same individual or individuals, repeatedly encountered and illegally returned without any process whatsoever, who seek only the legal forum to present their claim to authorities to which they are entitled under both domestic and international law. This right has been systematically denied to them by both the Trump and Biden Administrations and by mal-functioning Federal Judges, at all levels, who have failed to uphold the rule of law as it applies to the most vulnerable among us. Additionally, a knowledgeable jurist would take any statistics furnished by the notoriously unreliable DHS with a “grain of salt.”
The lack of understanding of how immigration law operates, the nativist-driven misinterpretations by the Trump Administration embodied in this dissent, and the lack of intellectual integrity in furthering nativist myths and intentional exaggerations to describe a group of individuals who merely seek legal justice under both our laws and international standards is a graphic illustration of who does not belong on our highest Court. If we are really committed to equal justice and fundamental fairness in the American justice system, we should insist that all of those nominated for our Supreme Court demonstrate significant experience representing individual foreign nationals in the Immigration Courts — the “life or death retail level” of our justice system.
Right now, those so-called “courts” are an embarrassing and dysfunctional “parody of justice” to which neither Justice Alito nor any of his colleagues would want to submit their own lives and futures or those of anyone they truly cared about. That’s the very definition of dehumanization and “Dred Scottification of the other” that Justice Alito seems so curiously eager to advance. Perhaps, that’s because he lacks the necessary empathy and perspective to see life from “the other side of the bench” as the rest of humanity does.
I’d like to think that Alito is capable of change and growth. Most, if not all, humans are. After all, he’s appointed for life, so he isn’t going anywhere soon. But, I won’t hold my breath.
Wendy Young President, Kids In Need of Defense (“KIND”)
Dear Paul –
The entire team at Kids In Need of Defense is devastated by the news that at least 46 people were found dead in an abandoned tractor-trailer in Texas and more than a dozen others in the truck, including children, were taken to local hospitals for treatment. While we wait for more details to emerge, we wanted to share the following statement from our President, Wendy Young.
“As rising violence, natural disasters, and other threats force migrants to make impossible choices in their quest to find safety, our nation’s response cannot be to place families and children in further harm by indefinitely closing our borders to people seeking protection and ignoring the dangers they face in their home countries. This most recent tragedy and the disturbing rise in migrant deaths globally underscore the need to create safer pathways to protection for refugees. The Biden Administration should see this heartbreaking tragedy for what it is, a clarion call to abandon deeply flawed and dangerous immigration policies. It must reinstate humane and orderly processing, including reopening official ports of entry, hiring child welfare experts to care for and screen children, and provide fair adjudication of protection claims. It is time for the United States to regain its footing as a leader in the protection of migrant families and children.”
– The KIND Team
****************
The key part of Wendy’s statement: “including reopening official ports of entry, hiring child welfare experts to care for and screen children, and provide fair adjudication of protection claims.”
Denial rates for recent arrivals who manage to get hearings (see, e.g., Garland’s bogus “dedicated dockets,” — actually “dedicated to denial” and nothing else), many of them children and unrepresented, hover around 100%. They are “guided” by a “largely holdover,” anti-asylum BIA that lacks true asylum expertise and issues no positive precedents instructing judges on how to consistently and legally grant asylum. Consequently, there is no “fair adjudication” of asylum claims. That feeds the toxic nativist myth that nobody at the Southern Border is a “legitimate” asylum seeker.
Unless and until Garland tosses the unqualified jurists at EOIR and replaces them with experts committed to due process, fundamental fairness, and correct, generous, practical precedents and proper applications of asylum law, the system will remain in failure. It’s a monumental mistake by the Biden Administration not to fix that which they absolutely control — starting with the Immigration Courts at EOIR.
Refugees will continue to die at the hands of smugglers who were given control of our immigration system by the Trump Administration and remain empowered by Garland’s & Mayorkas’spoor performance combined with biased, White Nationalist, Federal Judges appointed by Trump at all levels of our failing justice system!
Today’s WashPost editorial described how far-right nativists have basically turned our immigration system over to smugglers:
The absence of any workable legal system that would admit migrants systematically, in numbers that would meet the U.S. labor market’s demand, is the original sin of the chaos at the border. That is Congress’s bipartisan failure, a symptom of systemic paralysis for many years. More recently, a public health rule has had the effect of incentivizing unauthorized migrants to make multiple attempts to cross the border. The rule, imposed by the Trump administration, retained for more than a year by the Biden administration, and now frozen in place by Republican judges, allows border authorities to swiftly expel migrants, but with no asylum hearings or criminal consequences for repeated attempts to cross the border. That has been a boon to migrant smuggling networks.
I take issue with the term “bipartisan failure” in the legislative context. It’s true that the Dems inexplicably squandered a golden chance to fix many immigration problems when they had 60 votes in the Senate in Obama’s first two years. But, before and after that time, the failure to achieve realistic, humane, robust legal immigration reform legislation has been on the nativist right of the GOP that now dominates the party. Pretending otherwise is useless and dishonest.
All of these proposals would have made long-overdue, common sense reforms to eliminate hopeless backlogs, benefit our economy, strengthen our legal system, and facilitate better allocation of Government resources. Yet, there has been scant GOP interest in improving the system. The GOP appears to believe that promoting a dysfunctional immigration system, denying human rights, and guaranteeing a large “extralegal population” available as scapegoats and exploitable labor best serves their parochial political interests.
And, speaking of useless and dishonest, here’s Leon Krausze, WashPost Global Opinions Contributor, on how the disingenuous performance of Texas Governor Greg Abbott and Mexican President Andres Manuel Lopez Obrador has helped fuel both resurgent Mexican migration and unnecessary deaths at or near the border. https://www.washingtonpost.com/opinions/2022/06/29/san-antonio-migrant-deaths-trailer-mexico-amlo/.
The “good guys” — those committed to due process, fundamental fairness, individual rights, equal justice, scholarship, and human dignity — need to fight back at every level of our political and judicial systems — while they still exist! Because if the GOP has its way, that won’t be for long!🏴☠️
Asylum seekers, with their lives on the line, deserve fair, competent, experienced, nationally-recognized experts in asylum and immigration law as judges at all levels of EOIR, starting with the BIA. Instead, Garland appears to be running a refuge for the guy pictured above. Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
CA2 Rejects Matter of B-R-: Zepeda-Lopez v. Garland
“Petition for review of a decision of the Board of Immigration Appeals entered December 14, 2018, dismissing an appeal from the decision of an Immigration Judge denying asylum and the withholding of removal to petitioners, who are dual citizens of Honduras and Nicaragua, and their relatives. The agency denied relief based on Matter of B-R-, where the BIA held that to qualify as a “refugee” under the Immigration and Nationality Act, dual nationals must show persecution in both their countries of nationality. 26 I. & N. Dec. 119, 121 (B.I.A. 2013). The agency determined that while petitioners demonstrated persecution in Honduras, they did not show persecution in Nicaragua, and it concluded that they were not refugees and therefore not eligible for asylum. We grant the petition for review and hold that, to qualify as a “refugee” under the INA, a dual national asylum applicant need only show persecution in any singular country of nationality. PETITION GRANTED, BIA DECISION VACATED, AND CASE REMANDED. … We hold that to be considered a “refugee” under § 1101(a)(42)(A), a dual national need only show persecution in any singular country of nationality. Accordingly, we GRANT the petition for review, VACATE the BIA’s December 14, 2018, decision, and REMAND to the BIA for further proceedings in accordance with the proper legal standard. … [T]he INA unambiguously requires an applicant for asylum to show well-founded fear of persecution in any one country of the applicant’s nationality rather than in all such countries. … As the statutory text unambiguously provides that dual nationals need show persecution only in any singular country of nationality to qualify as a refugee under the INA, we need not defer to the BIA’s interpretation of § 1101(a)(42)(A). In any event, the BIA’s interpretation is unreasonable; Matter of B-R- required dual nationals to show well-founded fear of persecution in both countries of nationality. 26 I. & N. Dec. at 121. Such a reading is manifestly contrary to the text of the INA.”
I once used a similar fact situation as a final exam question in my “Refugee Law & Policy” class at Georgetown Law. It tested whether students could spot and develop a possible “Chevron challenge” to Matter of B-R-! I’m going to give the 2d Circuit an “A” on this one! The BIA gets an “F.”
Prior to B-R-, I had one of these cases in Arlington. I granted based on the plain meaning of the statute. I think the DHS waived appeal.
Bad law/bad policy/bad judging. In Matter of B-R-, the BIA stretched and ignored the statute to find a way to deny asylum to a journalist threatened by the Chavez Government of Venezuela — no “friend” of the U.S! He had little apparent contact with Spain, of which the IJ found he was a dual national, other than that his father was born there.
The respondents in Zepeda-Lopez were found to have suffered persecution in Honduras. They were ordered removed to Nicaragua, a country with a horrible human rights record and whose government has been condemned by the U.S.
Why would a competent BIA ignore the statutory language and misinterpret the law to achieve such highly problematic (one might argue downright dumb) results when a better, legally correct interpretation — merely following the statute (not “rocket science” 🚀) — would have produced more sensible results?
One possible conclusion: The BIA is “preprogrammed” to consider “denial of protection” under a statute designed for protection as the “preferred result.” Consequently, they will manipulate and misconstrue the law (and sometimes facts) to achieve removals that make neither legal nor policy sense.
With lots of better qualified, fair asylum experts out there who could be BIA judges, why is Garland employing the “B-Team” (at best) mostly selected by his predecessors, in these important, non-life-tenured quasi-judicial positions?
America needs a fair, functional, generous, realistic, practicalasylum system. It’s not achievable without a massive and much needed shakeup at the BIA and the trial courts at EOIR!
Bad judging, from the bottom to the very top of our justice system, by those disconnected from both the law and the human consequences of their lousy decisions, is helping to rip our nation apart. Garland has a golden opportunity to fix the “retail level” of our judiciary at EOIR. Why isn’t he getting the job done? Can our nation live with the consequences of his failure?
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.
The 6/10/22 order in Texas v. United States vacating the memo went into effect 6/24/22 and has not been stayed at this time. Regardless of the memo, it is important to continue arguing that prosecutorial discretion is a longstanding executive power and DHS retains the ability to join motions, stipulate to relief, etc. See Practice Alert: Judge Tipton Issues Decision Vacating Mayorkas Enforcement Priorities Memo.
USCIS: Where community levels are high, all federal employees and contractors—as well as visitors two years old or older—must wear a mask inside USCIS offices and physically distance regardless of vaccination status. Check CDC Level for Your Field Office.
Bustle: At a base level, the abortion restrictions detained women face are similar to the ones that low-income women face across the country because of the Hyde Amendment. For more than 40 years, the Hyde Amendment has prevented women on Medicaid from using federally funded insurance to pay for abortions, except in cases of rape, incest, or danger to the mother’s life. The same type of language exists in appropriations bills and healthcare regulations for all facets of the federal government, including the Immigration and Customs Enforcement agency.
AP: The Border Patrol paroled more than 207,000 migrants who crossed from Mexico from August through May, including 51,132 in May, a 28% increase from April, according to court records. In the previous seven months, it paroled only 11 migrants.
Guardian: At least 71,000 Ukrainians have entered the US since March, with Joe Biden’s pledge to welcome 100,000 people fleeing the Russian invasion on track to be met over the summer.
Bloomberg: The amendment, which faces a long path to the finish line in the appropriations process, would allow DHS to recapture family and employment-based visas that went unused due to bureaucratic snags, processing delays, and other disruptions since 1992.
AIC: Data analyzed by the Cato Institute shows that since Fiscal Year 2008, USCIS denied about 8% of employer-sponsored immigrants while the average denial rate by consular officers was 63%.
Law360: The Biden administration announced plans to issue a final Deferred Action for Childhood Arrivals rule by August and continue its efforts to undo multiple Trump-era regulations. Here are the main immigration highlights from the administration’s regulatory agenda for spring 2022.
WaPo: Critics of the measure say it perpetuates a false scarcity problem at a time when Virginia has a budget surplus, and it demands that lawmakers sacrifice one needy group of students for another.
Forbes: In a new book describing her years during the Trump administration, former Education Secretary Betsy DeVos revealed a plan by Stephen Miller to identify children at school for deportation under the pretext of checking for gang members.
Law360: The Biden administration has agreed to impose new living and sanitary standards on temporary emergency facilities housing hundreds of migrant children to resolve advocates’ claims that it was holding minors in unsafe and unsanitary conditions.
The Advocate: Immigration judges in Louisiana have denied asylum claims at a higher rate than almost any other courts in the nation over the past five years, according to federal data. However, a new federal rule might downsize their role in asylum proceedings.
CNN: The justices are considering whether the Biden administration can terminate a Trump-era border policy known as “Remain in Mexico.” Lower courts have so far blocked Biden from ending the policy.
SCOTUS: The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Tenth Circuit for further consideration in light of Matter of B-Z-R-, 28 I&N Dec. 563 (A.G. 2022).
BIA: A respondent who raises an objection to missing time or place information in a notice to appear for the first time in a motion to reopen has forfeited that objection.
Law360: A Dominican man got a new chance to fight his deportation on Tuesday when the Third Circuit ruled that his felony conviction under Pennsylvania’s fleeing and eluding law didn’t necessarily amount to a crime of moral turpitude.
LexisNexis: For years, Petitioner Javier Garza-Flores did not believe he had a valid claim to U.S. citizenship. But now he thinks that he does. And he has presented documentary evidence sufficient to demonstrate, at a minimum, a genuine issue of material fact concerning his claim of U.S. citizenship. That is enough to warrant a factual proceeding before a federal district court to determine his citizenship.
CA7: The Board’s main quibble was with the relevance of that evidence to an Ethiopian citizen, which it assumed Menghistab to be. But that assumption was not warranted on the record that was before the Board. Denying the motion to reopen without a full hearing addressing Menghistab’s citizenship and its materiality to his risk of torture was therefore an abuse of discretion.
Law360: The Ninth Circuit on Friday granted a Salvadoran’s request to have the Board of Immigration Appeals review claims that he would be tortured if sent back to the Central American country, saying the board originally failed to consider all possible risk sources.
Law360: U.S. Customs and Border Protection and Davis Wright Tremaine LLP have settled a Freedom of Information Act suit the firm filed over reports the agency decided Canadian cannabis workers weren’t eligible to enter the U.S., which led to an overturned internal document contradicting officials.
Law360: A Boston federal jury has found a construction company and its owner liable for retaliating against an employee by reporting him to immigration authorities after his on-the-job injury triggered a workplace investigation, awarding $650,000 in damages.
USCIS: A noncitizen who again seeks admission more than 3 or 10 years after the relevant departure or removal, is not inadmissible under INA 212(a)(9)(B) even if the noncitizen returned to the United States, with or without authorization, during the statutory 3-year or 10-year period
CBS: While the suspension of ICE’s arrest prioritization scheme is unlikely to place the country’s estimated 11 million unauthorized immigrants in immediate danger of being arrested, the absence of national standards could lead to inconsistent enforcement actions across the U.S., including arrests of immigrants whom agents were previously instructed not to detain, legal experts said.
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.
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
Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
According to a new book from former Trump Education Secretary Betsy DeVos:
“Over the din of patrons slurping lattes and crunching salads, Miller’s men described a plan to put U.S. Immigration and Customs Enforcement (ICE) agents into schools under the pretext of identifying MS-13 gang members. The plan was, when agents checked students’ citizenship status for the alleged purpose of identifying gang ties, they could identify undocumented students and deport them. Not only was the prospect of this chilling, but it was also patently illegal. Nate and Ebony turned them down cold. But that didn’t stop Stephen Miller from subsequently calling me to get my thoughts on the idea.
For years, the BIA has had standard practice of giving short shrift to potentially valid claims for protection under the Convention Against Torture (“CAT”). Without meaningful analysis they simply cite John Ashcroft’s infamous “no CAT precedent” in Matter of J-F-F-,23 I&N Dec. 912 (A.G. 2006), requiring that “each link in the chain of torture be proved to be probable.”
Since there is almost always some allegedly “weak link in the chain” that’s an “easy handle” for denial.Also, The IJ and the BIA can “lengthen the chain” or ignore the evidence as necessary to “get to no.” In the process, compelling evidence of likelihood of torture from qualified expert witnesses is either ignored or minimized — again, without much analysis. That’s how the “denial factory” in Falls Church can keep churning out CAT rejections even to countries where torture is rampant and either furthered or willfully ignored by the repressive governments.
At least in the 9th Circuit, the BIA will now have to go “back to the drawing board” for denying CAT and returningindividuals to countries where torture with government participation or acquiescence is likely. The 9th Circuit case rejecting the BIA’s “formula for denial” is Velasquez-Samayoa v. Garland. Here’s a link in addition to the one provided by Elizabeth.https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca9-on-cat-velasquez-samayoa-v-garland
Louisiana has long been one of a number of EOIR “courts” — these are actually “prison courts” — where “asylum cases go to die.” The deadly combination of bad Immigration Judges, lack of skilled immigration attorneys able to take these cases pro bono, coercive use of detention in out of the way places in substandard conditions, a “denial oriented” BIA stacked by the Trump DOJ and not “unstacked by Garland,” and an indolent, often virulently anti-asylum 5th Circuit add up to potential death sentences for individuals who could gain protection under a system where due process and fundamental fairness were respected and followed.
As the report in The Advocate referenced by Elizabeth shows, Garland has failed to reform and improve this blot on American justice. And, there is little chance that assigning the cases to USCIS Asylum Office in the first instance under new regulations in this intentionally toxic environment is going to promote justice or efficiency.
One might view the wide discrepancy between “positive credible fear findings” and asylum grants in Immigration Court as a sign of a sick and dying EOIR, not lack of merit for the claims. With less detention, more representation, better Immigration Judges, and a new BIA of true asylum experts willing to grant protection rather than “engineer rejection,” I’ll bet that many, perhaps a majority, of the outcomes would be more favorable to applicants.
As noted by Mitch Gonzalez of the SPLC in the article, “dehumanization,” “de-personification,” and “Dred Scottification,” along with cruelty are the objects of what’s going on at EOIR in Louisiana. The “fit” with the Trump/Miller White Nationalist anti-immigrant program is obvious. What’s less obvious is why Garland and the Biden Administration haven’t intervened to make the necessary changes to restore EOIR in Louisiana and elsewhere to at least some semblance of a fair and impartial “court system.”
SAN ANTONIO — At least 40 migrants were found dead in the back of a tractor-trailer in San Antonio Monday, according to two federal law enforcement officials briefed on the horrific finding.
Rescuers pulled at least 15 others from the vehicle and they were taken for medical treatment, said one of the officials, who spoke on the condition of anonymity to provide preliminary information.
The truck was found by agents from Homeland Security Investigations, a branch of U.S. Immigration and Customs Enforcement that specializes in human trafficking cases, one of the officials said. HSI agents are leading the investigation.
. . . .
*************************
Developing story. Read the complete version at the above link.
WASHINGTON — The scenes witnessed by journalists and humanitarian workers in recent months have been striking: In Sudan, swollen-bellied babies are looking for anything to eat. In Yemen, where warring parties have blocked humanitarian aid, hollow-eyed children and their mothers languish on the brink of death from starvation. In Ukraine, the elderly are collecting rancid rain runoff for drinking water.
Malnourishment and hunger were big problems even before Russia invaded Ukraine in February and cut off Europe’s breadbasket from its markets, sparking a flurry of dire warnings about the world’s food supplies. Dozens of countries across the globe are already suffering from devastating food shortages, so much so that the number of people facing starvation more than doubled in just the last two years, to 345 million, according to United Nations figures.
The causes are myriad: drought and flooding, and the interruption of supply chains triggered by the COVID-19 pandemic, especially in China. An estimated 20 wars or conflicts — the latest in Ukraine — have also seriously disrupted access to food and water.
“The current food security challenge that we’re facing [is] due to these three Cs: climate, COVID and conflict,” said Ramin Toloui, assistant secretary of State for economic affairs, one of several Biden administration officials tasked to food-security issues.
The bleak situation drew the attention of powerful diplomats Friday when U.S. Secretary of State Antony J. Blinken and the foreign ministers of six other of the world’s largest economies met in Germany to map out plans for easing global food shortages. Few observers expect real solutions to emerge but hope the summit will highlight the crisis and boost funding for anti-hunger efforts.
The Biden administration has committed about $8.5 billion to emergency food assistance and related programs, focusing initially on the Horn of Africa, Yemen, Lebanon and Haiti, Blinken said.
“We hear all these numbers; we’ve all cited numbers of this growing food insecurity,” Blinken said in Berlin. “But what we know is this: We know that those numbers are people, real people, real lives, real livelihoods, mothers, fathers, children. … As human beings, all of us have to be seized with this.”
The U.N.’s World Food Program calculates that eight of the 10 largest food crises worldwide are being primarily driven by conflict — in Yemen, Ethiopia, Afghanistan and the Democratic Republic of Congo. Such wars force people from their homes into long desperate treks for safety. They devastate farms and wreak havoc on food distribution systems.
In Latin America, food scarcity is also driving tens of thousands of people to abandon parched or hurricane-leveled farms and migrate to the United States.
These were the disasters already in motion when Russia invaded Ukraine. Now, the U.N. says the Russian blockade of Ukraine’s Black Sea ports could lead 40 million more people to go hungry.
. . . .
Caitlin Welsh, a veteran expert in global food security who heads that program at the Center for Strategic and International Studies in Washington, said hunger and famine have consequences for both health and politics.
Hungry people can be angry people, and the rising price of food or fuel have led to coups throughout history. The health effects of going hungry can be far-reaching and insidious, Welsh said.
“The sudden elevation in prices [of foodstuffs like bread] can make people shift from more nutritious food to items of lower nutrition,” she said. And for pregnant women and young children, that can cause lifelong disabilities, Welsh said.
***************************
Read Tracy’s complete article at the link.
War is bad, particularly when those who needlessly start them for their own amusement, ego, and nationalistic jingoism escape accountability. See, e.g., V. Putin.
Refugee and Forced Migration Studies, Grace School of Applied Diplomacy
Craig Mousin has been the University Ombudsperson at DePaul since 2001. He received a BS from Johns Hopkins University, a JD from the University of Illinois, Urbana-Champaign, and an M Div from Chicago Theological Seminary. He joined the College of Law faculty in 1990, and served as the Executive Director of the Center for Church/State Studies until 2001, Acting Director until 2003, and co-director from 2004–2007. Mousin co-founded and continues to participate in the Center’s Interfaith Family Mediation Program. He has taught in DePaul’s School of Continuing and Professional Studies, the Religious Studies Department, the Grace School of Applied Diplomacy, and the Peace, Justice and Conflict Studies program. He has also taught as an adjunct faculty member at the University of Illinois College of Law and Chicago Theological Seminary .
Prior to DePaul, he began practicing labor law at Seyfarth, Shaw, Fairweather & Geraldson in 1978. In 1984, Mousin founded and directed the Midwest Immigrant Rights Center, a provider of legal assistance to refugees which has since become the National Immigrant Justice Center. He also directed legal services for Travelers & Immigrants Aid between 1986 and 1990. The United Church of Christ ordained him in 1989. At that time, Wellington Avenue U.C.C. called him as an Associate Pastor. He was a founding co-pastor of the DePaul Ecumenica l Gathering (1996-2001). Mousin serves as a Life Trustee of the Chicago Theological Seminary. In addition, he is a member of the Leadership Council of the National Immigrant Justice Center, a member of the Leadership Council of the Marjorie Kovler Center for Survivors of Torture, a former President and member of the Board of the Eco-Justice Collaborative, and a former President and Board member of the Immigration Project of downstate Illinois. Mousin is a current member of the ABA Dispute Resolution Section Ombuds Committee.
Craig writes:
Comment: Paul,
You might be interested in a short interview I did with Chicago FOX news on World Refugee Day. I tied the celebration in with the honoring of Juneteenth. See:
Also, I do not know if you subscribe to my podcast, Lawful Assembly, but my last post tied together censorship of books in public schools with anti-immigrant sentiments. You can listen at:
Today’s WashPost Outlook Section contained a highly relevant article by author Dave Eggers about how far-right zealots — many with no real stake in our public schools — have taken over at local levels and apply extreme censorship — even to books and concepts that have been successfully and routinely taught for years. https://www.washingtonpost.com/outlook/2022/06/24/dave-eggers-book-bans-south-dakota/
In this case, it’s driving experienced teachers who believe in truth, freedom, and individual rights to flee in droves. So, what we’re really seeing is a shocking “dumbing down” of American education, libraries, and public discourse driven by far right fear-mongers seeking to impose their lack of values and intolerance on others.
We have seen this week how far-right activist extremists, from the Supremes to local politicians and school boards, have elevated guns that kill while gutting the individual rights to free speech, equal protection,and fundamental fairness guaranteed by the 1st, 5th, and 14th Amendments.
Justice Clarence Thomas is certainly a horrible jurist. But, in this instance he might be the only honest GOP appointee on the Supremes.
When Thomas says that immigrants’ human rights, gay rights, right to conception, marriage rights and most other meaningful individual rights guaranteed by the Constitution are on the chopping block, progressives had better believe him. Remember how “leaving things to the states” worked out for African Americans and other minorities attempting to exercise their fundamental rights, even after the Civil War and the 13th, 14th, and 15th Amendments. And, remember all those paeons to precedent and “not to worry” about Roe statements under oath from GOP Supremes’ candidates before they actually took their seats on the Court and started scheming to undo abortion rights for political, not legal, reasons!
“Social Justice Warriors” like Craig have been fighting the good fight for decades. But, at this point, it’s going to depend on the NDPA and other young progressive groups to take on the extremist right at the ballot box and to take back their individual rights — really all of our individual rights.
Otherwise, they will find themselves as a disempowered counterculture, hiding out and trying to keep ahead of Ray Bradbury’s firemen in Fahrenheit 451!
Anti-Asylum Judges In Action! Factual distortions, ignoring evidence, and misapplications of the law are some of the “weapons” wielded by some EOIR judges to stop asylum seekers from getting the life-saving legal protections they deserve! Article III Courts can compound the problem by mis-using “deference” to avoid critical examination of the frequent abuses of humanity and the rule of law inflicted by this parody of a court system. Albrecht Dürer, Public domain, via Wikimedia Commons
ONE TINY STEP FOR MANKIND: But It’s Going To Take Much More Than Finally Replacing A Few Stunningly Unqualified Judges To Save EOIR!
By Paul Wickham Schmidt
Courtside Exclusive
June 25, 2022
Over the last few weeks the long overdue and essential process of weeding out poorly qualified Immigration Judges — still on “probation” at EOIR — finally got off to a very modest start.
Imagine yourself as a refugee fighting for your life in an asylum system that’s already stacked against you and where the “judges” work for the Attorney General, part of the Executive Branch’s political and law enforcement apparatus.
How would you like your life to be in the hands of (now) former Immigration Judge Matthew O’Brien. He was appointed in 2020 by former AG Bill Barr — a staunch defender of the Trump/Miller White Nationalist, xenophobic, anti-immigrant agenda.
Nativism A “Qualification?”
What made O’Brien supposedly “qualified” to be a “fair and impartial” administrative judge?
Thankfully, O’Brien will pass into history. But, the damage inflicted by the “official policy of child abuse” will adversely affect generations.
Or, perhaps it was O’Brien’s intimate connection with a leading nativist group. Immediately prior to his appointment, he was the “Research” Director for the Federation for American Immigration Reform (“FAIR”) — a group renowned for sloppy to non-existent “research” and presenting racially-motivated myths and fear mongering as “facts.”
As noted by Nowrasteh, that’s not the only example of FAIR providing “bogus research papers” designed to “rev up hate” and demean the contributions of immigrants both documented and undocumented.
The Anti-Defamation League (“ADL”), one of America’s most venerable anti-hate, anti-misinformation groups, founded more than a century ago “To stop the defamation of the Jewish people and to secure justice and fair treatment to all,” had this to say about O’Brien’s former employer:
While the majority of the extreme anti-immigrant sentiment in the U.S. emanates from fringe groups like white supremacists and other nativists, there are a number of well-established anti-immigrant groups such as Federation for American Immigration Reform (FAIR), Center for Immigration Studies (CIS), NumbersUSA and The Remembrance Project which have secured a foothold in mainstream politics, and their members play a major role in promoting divisive, dangerous rhetoric and views that demonize immigrants. A number of these groups have attempted to position themselves as legitimate advocates against “illegal immigration” while using stereotypes, conspiracy theories and outright bigotry to disparage immigrants and hold them responsible for a number of societal ills. A decade ago, most of this bigotry was directed primarily at Latino immigrants, but today, Muslim and Haitian immigrants, among others, are also targeted.
. . . .
There is a distinct anti-immigrant movement in this country, whose roots can be traced back to the 1970s. Groups such as the Federation for American Immigration Reform (FAIR) and Center for Immigration Studies (CIS) hope to influence general audiences with somewhat sanitized versions of their anti-immigrant views. In their worldview, non-citizens do not enjoy any status or privilege, and any path to citizenship for undocumented immigrants or refugees is portrayed as a threat to current citizens. Like some other problematic movements, the anti-immigrant movement also has a more extreme wing, which includes border vigilante groups, as well as groups and individuals that seek to demonize immigrants by using racist, sometimes threatening language.
So, perhaps, you say, once actually “on the bench,” Judge O’Brien was able to overcome his biases and knowledge gaps and function as a fair and impartial judicial officer. Nope! Not in the cards!
According to TRAC, O’Brien denied almost every asylum case he heard (96.4% denials). That was, astoundingly, nearly 40% above the average of his colleagues in Arlington and nearly 30% higher than the nationwide asylum denial rate of approximately 67%.
But, to put this in perspective, we have to recognize that this denial rate had already been intentionally and artificially increased by a expanded,”packed,” politicized, “weaponized,” and intentionally “dumbed down” EOIR during the Sessions/Barr era at DOJ. For example, approximately 10 years ago, more than 50% of asylum, cases were being granted annually nationwide, and approximately 75% of the asylum cases in Arlington were granted. See, e.g., https://trac.syr.edu/immigration/reports/judge2014/00001WAS/index.html. And, even then, most asylum experts would have said that the nationwide grant rate was too low.
Gaming The System For Denial
It’s not that conditions in “refugee/asylum sending” countries have gotten better over the past decade! Far from it! The refugee situation today is as bad as it has ever been since WWII and getting worse every day.
So, why would legal refugee admissions be plunging to record lows (despite a rather disingenuous “increase in the refugee ceiling” by the Biden Administration) and asylum denials up dramatically over the past decade?
It has little or nothing to do with asylum law or the realities of the worldwide refugee flow, particularly from Latin American and Caribbean countries. No, it has to do with an intentional move, started under Bush II, tolerated or somewhat encouraged in the Obama Administration, but greatly accelerated during the Trump-era, to “kneecap” the legal refugee and asylum processing programs. Indeed, the “near zeroing-out” of refugee and asylum admissions and the illegal replacement of Asylum Officers by totally unqualified CBP Agents by the Trump Administration are two of the most egregious examples.
Ironically, the EOIR backlog tripled. Under the “maliciously incompetent management” of the Trump group at DOJ, more judges actually meant more backlog! How is that giving taxpayers “value” for their money?
Some of the new judges, like O’Brien and some of the Immigration Judges “elevated” to the BIA, were appointed specifically because of their established records of anti-asylum bias, rude treatment of attorneys, and dehumanizing treatment of asylum seekers and other migrants.
“Ignorance And Contempt”
It’s not like O’Brien was just your “garden variety” “conservative jurist.”(I’ve actually worked with many of the latter over the years). No, he was notorious for his lack of scholarship, rudeness, and bias!
Here are a few of the comments he received on “RateYourJudge.com:”
“Rarely grants cases. No knowledge of the law, only there to deny cases. He needs to be removed.”
“Biased judge, hates immigrants and even kids of immigrants.”
“Incompetent.”
“One of the most condescending and self-righteous judges I have had the displeasure to hear. His word choice and tone left absolutely no doubt that he considered the Respondent to be beneath his notice, even to the point of referring to her as “the female Respondent” and to her domestic partner as a “paramour”. I have heard other judges’ oral opinions on very similar sets of facts, and they were accomplished in a fifth of the time with no loss of dignity to anyone.”
“This guy’s ignorance about immigration law and contempt for the people who appear before him is staggering. The way he threatens lawyers is reprehensible. EOIR is a disgrace.”
“Horrible human being with no business being on the bench. Shame on EOIR for allowing him to continue adjudicating cases.”
“Late, abusive, made up his mind before the case even started, frequently interrupted testimony, yelled at immigrants and their lawyer, and refused to listen to anything we said. Ignorant of the law and facts of the case. He should go back to directing hate groups.”
Among the stream of negative comments there were three “positive” comments about O’Brien;
Most of the comments both positive and negative were “anonymous” or apparent user “pseudonyms;”
“RateMyImmigrationJudge” is neither comprehensive nor transparent.
Flunking the “Gold Standard”
So, was O’Brien really as horrible as most experts say? Let’s do another type of “reality check.”
Among the other IJs at the Arlington Immigration Court, two stand out as widely respected expert jurists who have served for decades across Administrations of both parties. Judge John Milo Bryant was first appointed as an Immigration Judge in 1987 under the Reagan Administration. Judge Lawrence Owen Burman was appointed in 1998 under the Clinton Administration. With 66 years of judicial service between them, they would be considered more or less the “gold standard” for well-qualified, subject matter expert, fair and impartial Immigration Judges.
Significantly, according to the last TRAC report, O’Brien’s asylum grant rate of 3,6% wasapproximately 1/15th of Judge Bryant’s and approximately 1/22 of Judge Burman’s. https://trac.syr.edu/immigration/reports/judgereports/. Case closed! O’Brien should never have been on a bench where asylum seekers lives were at stake and expertise and fairness are supposed to be job requirements!
“Worse Than O’Brien”
What about now former Arlington Immigration Judge David White who was removed at the same time as O’Brien? Apparently, during his relatively short tenure (appointed by Barr in 2020), White was unable to deny enough asylum to qualify for TRAC’s system (100 decisions minimum).
Yet, he made an indelible impression on those “sentenced” to appear before him. Here are comments from RateMyImmigrtionJudge.com:
“This judge is absolutely terrible. Unfair and biased. He is only here to deny asylum cases regardless of what the person has been through. Completely misstates the facts, doesn’t know the law so goes after credibility (using those misstated facts) as an excuse to say there’s no past persecution. Absolute disgrace.”
“Worst judge ever. The clerks at the Immigration Court told the private bar attorneys that they have NEVER seen this judge approve an asylum case. Not one. They have running bets and jokes about him, but he never grants. He writes the denial during the trial instead of listening to the person testify. He is insulting and rude and not at all compassionate about trauma.”
“This is the worst immigration judge in Arlington, hands down. He’s even worse than O’Brien, and O’Brien is an former hate-group director.”
“Terrible immigration judge. Had his mind made up well before our hearing. Came in with a prewritten denial that misstated the law. Was rude and dismissive about my client’s trauma.”
Wow! Worse than O’Brien. That’s quite an achievement.
GOP Court Packing
Fact is, the overt politicization, “weaponization,” and “dumbing down” of the Immigration Courts goes back nearly two decades to AG John Ashcroft and the Bush II Administration. Ashcroft reduced the size of the BIA as a gimmick to “purge” the supposedly “liberal” judges — those, including me, who voted to uphold the legal rights of migrants against government overreach. In other words, our “transgression” was to stand up for due process and the individual rights of immigrants — actually “our job” as properly defined.
And, the downward spiral has continued. The DOJ Office of Inspector General (“OIG”) actually confirmed some of the Bush II improper Immigration Judge hires. But, they avoided dealing with the “BIA purge” that got the ball rolling downhill at EOIR! The GOP has been much more skillful than Dems in reshaping the Immigration Courts to their liking.
During the Trump Administration, putting clearly unqualified IJs who were some of rudest highest denying in America on the BIA was certainly “packing” and “stacking” EOIR against legitimate asylum seekers. Again, however, the OIG failed to “seal the deal” regarding this outrageous conduct that has undermined our entire justice system, fed uncontrollable backlog, and cost human lives that should and could have been saved.
Trump’s “court packing scheme” was no “small potatoes” matter, even if some in the Biden Administration are willfully blind to the continuing human rights and due process disaster at EOIR.
Removing two of the most glaringly unqualified Barr appointees in Arlington is a very modest step by AG Garland in the right direction. But, it’s going to take more, much more, decisive action to clean out the unqualified and the deadwood, bring in true expertise and judicial quality, and restore even a modicum of legitimacy and integrity at EOIR.
Reactionaries’ Predictably Absurdist Reaction
Meanwhile, even this long overdue, well justified, and all too minimal change at EOIR produced totally absurdist reactions from O’Brien and fellow nativists (including some still “hiding out in plain sight” at DOJ) which were picked up by the Washington Times (of course). Don’t believe a word of it!
The removal of guys like O’Brien and White — who never had any business being placed in “quasi-judicial” positions where they exercised life or death authority over refugees of color whose humanity and legal rights they refused to recognize, is just a beginning. The ethical, competence, and judicial attitude rot at EOIR goes much deeper.
Garland has been dilatory in “cleaning house” at EOIR. Vulnerable individuals who were wrongly rejected rather than properly protected have needlessly suffered, and probably even died, as a result. Poor Immigration Judging and lack of effective, correct, courageous, positive asylum guidance by the BIA has helped fuel a human rights disaster and rule of law collapse at the border!
Perhaps, at long last, Garland has slowly started fixing the unconscionable and unnecessary dysfunction andintentionally ingrained institutional bias at EOIR. But, I’ll believe it when I see it!
Keep Up The Pressure
In the meantime, it’s critical that NDPA members: 1) keep applying for EOIR judgeships; and 2) ratchet up the pressure and demand the removal of all unqualified Immigration Judges and Appellate Immigration Judges who are undermining sound scholarship, due process, fundamental fairness, and human dignity at EOIR!
Human rights matter! Individual rights matter! Immigrants’ rights matter! Good judges matter!
Today, we are surrounded by too many bad judges, at all levels of our justice system, who reject the first three in favor of warped far-right ideologies, dangerous myths, and disregard for human dignity. The existential battle to get good judges into our system has begun. And, Immigration Courts are the primary theater of action!
“Nexus? What nexus? These “just happen to be” women facing a little “random violence!” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
With credible testimony and harm that rises to the level of persecution for a woman in El Salvador, who was the victim multiple rapes, on its face, this should have been an easy grant for a competent IJ.
Essentially, this judge argues that harm rising to the level of persecution — multiple rapes — inflicted on a woman in El Salvador, where femicide and misogyny run rampant, has nothing to do with her being a woman. Such a conclusion is unlikely — some experts would say facially absurd!
Indeed, the IJ’s apparent view that multiple rapes had nothing to do with a gender-based protected ground of being a woman would be totally “off the wall” for any experienced asylum adjudicator who truly understood the well-documented nature of violence against women as a widespread form of persecution worldwide!
According to the UN Handbook for Determining Refugee Status, adjudicators should give credible applicants “the benefit of the doubt.” “It is therefore frequently necessary to give the applicant the benefit of the doubt.” (Par. 203). That’s not what this IJ did!
Also, in the remand order, the BIA specifically rejected the IJ’s finding that this gross harm to the respondent was “individualized” and “personalized” and therefore not a basis for an asylum claim — something not mentioned by the IJ in his “certification.”
Counsel for the applicant is well aware of this “better analysis” and could have argued it.But, in his snarky haste to prejudge and deny needed protection, this Houston IJ didn’t even give the parties a chance to participate in his “return to sender” (“certification”) nonsense.
A better functioning expert BIA would have long ago provided precedential guidance granting cases like this — adopting and amplifying the rationale of the IJ in the Honduran case.
Additionally, the BIA remand instructed the IJ to inquire of the DHS as to whether this victim of multiple rapes with no apparent criminal record or other adverse factors was and “enforcement priority” under applicable DHS guidelines — something that the IJ contemptuously and improperly did not do! Indeed,he didn’t seek any input from the parties despite being instructed to do so.
Unquestionably, being an El Salvadoran woman is a) immutable or fundamental to identity; b) highly particularized, and c) socially visible, as recognized by the Salvadoran government and everyone in El Salvador, thereby clearly qualifying as a “particular social group.”
There is also plenty of reliable evidence that El Salvador, like the rest of the Northern and Triangle Governments, is basically a failed state — something publicly admitted by some Administration officials, including Special Envoy to the Northern Triangle Ricardo Zuniga. https://apple.news/A9FpzsjRAQ2OoAyQZzHZm1A (“democracy, the rule of law and the security situation continue to deteriorate”). The Salvadoran government is neither willing nor able to provide a reasonable level of protection to women like this applicant. Indeed, there is likely sufficient evidence for a better BIA to establish a “rebuttable presumption of failure of state protection” in El Salvador and the rest of the Northern Triangle.
Temporary Appellate Immigration Judge Gabe Gonzalez, author of the remand, is one of the better BIA judges. But, his remand could have been even stronger. He could have reversed this IJ and granted asylum on this record. Why “beat around the bush” on grantable cases that are being mishandled by “chronically over-denying IJs” below? At this point, removal of this particular judge from the case would be more than justified. Cases like this certainly raise the legitimate question of why IJs who sit around inventing reasons to deny relief to those in need of protection are on the Immigration Bench in the first place. There are certainly better-qualified judicial choices — many of them located in Texas — who could bring legitimacy, quality, and efficiency to Garland’s dysfunctional courts!
“Bogus lack of nexus” is one of the most overused grounds for improper denials of protection by EOIR judges at all levels. It’s part of the “any reason to deny” approach enabled by EOIR’s current “anti-asylum culture” — one that was overtly encouraged and promoted by the Trump DOJ.
Inexplicably selecting Houston as one of the “test locations” for the new asylum regulations is “built to fail.” Without expert, positive guidance from qualified IJs in Houston (and the BIA) on granting asylum — something that this “denial centered court” simply doesn’t possess — there is every reason to believe that asylum seekers will not receive professional treatment or correct decisions from either the Asylum Office or the Immigration Court in Houston. And, relying on the BIA or, worse yet the “over the top” 5th Circuit,” to guarantee fairness and justice for asylum seekers? That’s a sick joke under current conditions!
8) Poorly reasoned, legally incorrect asylum denials and frivolous actions like the IJ’s “certification” in this case are a major factor in generating a 1.8 million case EOIR backlog and enabling a lawless, non-expert, anti-immigrant “culture of denial” at EOIR. Many grantable asylum cases languish in the backlog, are subjected to “Aimless Docket Reshuffling,” and then are wrongfully denied by poorly performing judges at both levels of EOIR.
9) EOIR suffers from poor leadership, a poorly performing BIA that overall lacks the expertise and courage to grant the large number of deserving asylum cases currently languishing in the EOIR backlog, and to set proper legal standards that will guide Immigration Judges and Asylum Officers in efficiently granting deserving cases at the first level of the system.
10) Garland should remove or reassign the “under-performers” and “non-performers” at EOIR and replace them with qualified experts committed to best practices and “guaranteeing fairness and due process for all” (EOIR’s now long-forgotten and dishonored mission).
11) Lives and the future of democracy are at stake here! America simply can’t afford the “institutionalizednonsense” still rampant at EOIR as illustrated by this case!
12) Also, EOIR’s performance in this cases is inconsistent with almost every sentence of the recent “LA Declaration.” Issuing statements of principle that are directly contradicted by your actual practices is a bad idea!
This has been a bad week for individual rights and particularly the rights and humanity of women in America. Garland can’t fix the out of control, “fringe-right,” Supremes’ majority. But, he can fix EOIR! And, that would be a long overdue and desperately needed first step toward fixing the entire broken and foundering Federal Court system. Start “at the retail level” with what you have the power to fix and work from there!
Located on bluffs above the mighty and historic Fox River in Appleton, Wisconsin, on the ancestral homelands of the Menominee and Ho-Chunk people, Lawrence University was founded in 1847 as the second coeducational college in America and the first in Wisconsin! Today, approximately 1,500 Lawrentians attend one of America’s leading liberal arts colleges!
INVOCATION
Reunion convocation Lawrence University Saturday, June18 –11AM
Rev. Scott W. Alexander – Class of 1971
Dear Spirit of life and love – that holy-yet- fragile presence which animates and informs this troubled world of ours, and constantly tries to lure us toward goodness, compassion and truth — be with us this hour as we remember and recommit to the highest principles and purposes of this institution.
The Motto of Lawrence University – this treasured institution that helped shape our lives and give meaning to our work in this world – is”VERITASESTLUX[Veritas-est-lucks]”-
Latin (of course) for “Truth Is light.1
Simple, right?…The light of Truth will show us the way to our best human selves, and a rational, just and humane world.
Maybe…but in these complicated times, truth itself (and all the intellectual. scientific and moral standards that underpin it) are dangerously up for grabs.
Sadly, our culture is now on the tragic cusp of becoming a rudderless “POST-TRUTH SOCIETY”…where everything Lawrence University stands for– truth, reason, critical thinking, discernment and progress — are no longer self-evident, or the dominant modes of thinking and discourse. This time we live in is polluted by rampant disinformation, gaslighting, conspiracy theories, sinister deceptions, and outright lies. In such a dangerous environment, this University becomes “counter-culture” when it insists on clear and rigorous intellectual and moral standards…and a reliance of facts and data — rather than revisionist history or one’s “personal” truths.
Let us then, on this day and all days to follow, defend and honor the values and commitments upon which this University stands. And let us refuse to abrogate what we learn here – that truth matters…that all people have inherent worth and dignity…and that together (with wisdom and goodwill) we can build a social order of decency, inclusion, justice and hope.
Amen
*************************
Rev. Alexander also received the George B. Walter ’36 Service to Society Award. Afterward, he was kind enough to share the “delivery copy” of his Invocation with me for publication here.
Here’s his bio from the Lawrence University Alumni Office:
Scott Alexander ’71
Scott Alexander ’71
Alexander, of Vero Beach, Florida, has been an ordained minister with Unitarian Universalist congregations and has served in numerous UU leadership roles over the past four-plus decades. He travels widely, speaking, preaching, and offering in-depth workshops on a variety of UU and faith-related subjects. He has authored or edited five books as part of his UU ministry, covering topics ranging from affirming LGBTQ inclusion to AIDS resources to everyday spiritual practices.
A student-athlete while at Lawrence, Alexander continues to enjoy endurance events. The former marathoner has now completed four coast-to-coast charity bike rides that have raised more than $150,000.
Along the lines of Lincoln’s Gettysburg Address, “Rev. Scott” shows that you can say a lot without speaking a lot! That’s one of the many, many benefits of a liberal arts education and a reason for promoting diversity and expansion of availability within the liberal arts educational “model.”
Folks at the reunion had excelled and given back to society in a mind-bogglingly wide range of fields — from farming to art, business, medicine, biophysics, law, religion, entertainment, healing, craft brewing, real estate, library science, journalism, philosophy, aviation, military service, religion, pet services, language learning, writing, working with vets, law enforcement, music, hospitality, civil service, child care, elder care, social work, philanthropy, deaf services, performing arts, administration, economics, international understanding, finance, environmental protection, and almost everything in between.
One of my classmates had been through 22 different jobs in 50 years since we graduated and contributed, learned, and grew in every one of them! Talk about flexibility and being prepared to find meaning in anything life throws your way! Another earned my “vote for God” through her consistently positive view of life, intellectual creativity, and ability to combine them in a never-ending quest for spiritual healing of those, like vets and abused populations, suffering from severe trauma!
I had lunch with two stars of the “new generation” who — 15 years out — were inspiring a diverse groups of younger Americans — including Native Americans — as teachers in secondary and higher education. One was a former student of my son-in-law (now a Professor at Beloit College), showing how interconnected we all are!
In the words of Rev. Scott, we all worked to promote a “societyof decency, inclusion, justice and hope.” I wish I could say the job is done. But, obviously it isn’t. Despite our efforts, there has been disheartening backsliding and regression in the fight for truth over lies, justice over bias, and humanity over hate!
We “50+ Reunionists” are fighters and “applied idealists.” We will never stop battling for our values!
But, we are also imperfect humans and realists. We must accept our human mortality and rely on the upcoming generation (“the NDPA”) to complete the job we inevitably will leave as a “work in progress.” Ultimately, whether truth, light, and human dignity; or lies, vile myths, hate, and intentional dehumanization, triumph will be up to them and their vision of the world in which they will live and leave to future generations!
The forces of darkness and illiberality alluded to by Rev. Scott are present, energized, and determined to thwart justice and human progress. Triumphing over them and “lighting the world with truth” will take constant, concerted, inspired, and never-ending energy and effort!
I am a proud LU ’70 graduate. My wife Cathy (Piehl) Schmidt is LU ’69. Our daughter Anna Patchin Schmidt is LU ’06.
🇺🇸🗽⚖️ Due Process Forever!
PWS
06-22-22
But, wait, there’s more!
Lawrence University Class of 1970: Five generations out and still going strong! — From one turbulent time in America to another!
Rev. John Fease (LU ‘70), one of Appleton’s most passionate advocates for social justice, talking with retired librarian Walter Stitt (LU ‘70), John Kaufman (LU ‘67), and LU Athletic Hall of Famer, former coach, and well-known pottery artist Rich Agnes (LU ‘67). I dubbed Rev. Fease “Appleton’s Mr. Condom” for his leadership and tireless work on behalf of Planned Parenthood!LU Alums gather for the “Parade of the Classes.”Class of ‘70 buddies for life (l-r) Dr. Sue Mahle, Mary Freeman Borgh, Martha Esch Schott, Class Secretary Extraordinaire Phyllis Russ Pengelly, and Emeritus LU Trustee Jeff “Ralph” Riester share some good times, past and present.Generations confabbing at Brat Picnics are a Lawrence tradition (mine, of course, was totally “plant based”). Carolyn Grieco (LU ‘08) is bringing truth and light to new generations as a Spanish teacher in Antioch, Illinois! You can actually see “the light of Lawrence” shining above us through the campus tree canopy! Lawrence currently is leading the way among institutions of higher learning in sustainable energy and renewable resources!
