"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.
Under Trump, asylum seekers sent to Mexico were often confused and adrift, unsure how to find legal help or return for their U.S. court appointments. They were visible on the streets of Mexican border cities and were easy targets for criminal gangs.
Marysol Castro, an attorney with El Paso’s Diocesan Migrant and Refugee Services who provides legal aid to asylum seekers in MPP, said the program’s return under Biden was a “relief” to some, “because otherwise if you go to the border you’re getting expelled” under Title 42.
Castro said new enrollees in MPP have court dates with fast-tracked hearings, unlike asylum seekers who were placed into the program under Trump and are still stuck in Mexico “with no hope.”
Mexican authorities say they received assurances from the Biden administration that migrants placed in MPP would have improved access to legal counsel. But despite the vastly lower numbers, there is still far more demand for pro bono legal services than nonprofit groups and charities can provide, Castro said.
More than two-thirds of MPP returns under Biden have been sent to Ciudad Juárez, where they are provided secure transportation through a State Department contract with the U.N. International Organization for Migration. The Mexican government houses them in a shelter set up in a converted warehouse in an industrial area of the city.
“The shelters are more restrictive,” said Victor Hugo Lopez, a Mexican official who helps oversee the program. “The migrants can request permits to go outside, but we try to keep them safe by keeping them inside.”
Dana Graber Ladek, the IOM chief of mission in Mexico, said her organization continues to oppose MPP on principle, even as it’s working with both governments to ameliorate conditions for those sent back.
“It still has a tremendous amount of negative impacts,” she said. “It’s not how asylum is supposed to work.”
Representation remains a problem, but also an opportunity, just as Nolan Rappaport said on The Hill! Fortunately, Professor Michele Pistone has been thinking in advance and has built a “scalable” program (VIISTA-Villanova) that already is turning out qualified grads who can become accredited representatives and could quickly be expanded. By coordinating scheduling of hearings with nationwide NGOs and pro bono groups and “leveraging” resources that might be available to get pro bono resources to the border without overtaxing them elsewhere with “Aimless Docket Reshuffling,” (“ADR”), the representation problem can be solved.
One good sign is that cases of those likely to be granted, Venezuela, Nicaragua, Cuba, have been prioritized which can help move dockets forward while reducing resource-wasting appeals and petitions for review. But, there is much more “low hanging fruit” here to be harvested, in my view:
Also prioritize many Haitian cases, domestic violence cases from Latin America, and family-based cases which, if represented and documented, should be relatively straightforward grants;
Replace the BIA with judges who are asylum experts and will issue the necessary positive guidance on granting asylum that will move dockets, promote consistency, and reduce appeals;
Why ignore the “waiting for Godot” cases left over from Trump’s intentionally “built to fail” program? Get them represented and scheduled for hearings;
End the failing and totally misguided “Dedicated Dockets” at EOIR. Instead, treat the MPP as the “Dedicated Docket;”
To keep backlog from further building, use ideas from the “Chen-Markowitz” plan to remove two “hopelessly aged” cases from the EOIR backlog docket for every MPP case “prioritized.” This could also free up some representation time. Go from ADRto “Rational Docket Management” (“RDM”), closely coordinated with the private bar and DHS!
Finally, keep in mind that directly contrary to the babbling of Paxton and other ignorant GOP White Nationalists, the purpose of asylum law is protection, not rejection! And, the generous standard of proof for asylum, recognized by the Supremes 35years ago, combined with existing regulatory presumptions of future persecution based on past persecution should, if honestly and expertly applied, favor asylum applicants (even if that hasn’t been true in practice). The U.S. legal system is supposed to be about guaranteeing due process fundamental fairness, and achieving justice, not to serve as a “deterrent,” “punishment,” or “enforcement tool.”
In the case of MPP, everyone in the program has already passed initial credible fear or reasonable fear screening!That means with well-qualified Immigration Judges possessing asylum expertise, new expert BIA judges, competent representation, and a focus on insuring justice by DHS Counsel, many, probably the majority of the MPP cases should be grants of asylum of other protection.
That will help clean out the camps, while addressing the serious “immigration deficit” that was engineered by Trump and Miller. It also allows refugees to become contributing members of our society, rather than rotting away and squandering their human potential in squalid camps in Mexico!
To date, most MPP cases havebeen denied with questionable due process, little obvious expertise, and a complete lack of positive, practical guidance by the BIA. This strongly suggests severe shortcomings and bias in the DHS/DOJ implementation of Remain in Mexico (“MPP”). But, it’s never too late to do better!
The Post article suggests that there have been some modest improvements in MPP under Biden. It’s time to take those to another level! The ideas and tools are out there. All that’s missing is the dynamic leadership, teamwork, and competent, creative., due-process-focused focused management.
We, the undersigned organizations committed to the rights of asylum seekers and refugees, write to express our serious concerns over reports that the U.S. Department of Homeland Security (DHS) has begun a new practice of using Title 42 to expel Venezuelan migrants to Colombia. We understand that the first two Venezuelan individuals to be expelled under this policy were flown to Colombia on January 27, 2022 and that additional Title 42 expulsion flights to the country are expected to take place on “a regular basis” for Venezuelans who “previously resided” in Colombia. This practice represents a concerning and unacceptable escalation to your administration’s misguided approach to border and migration policy that flouts domestic and international refugee and human rights law. We urge you to cease these and other Title 42 expulsions immediately, to prioritize protection and access to asylum in your regional and domestic migration policies, and to engage asylum and human rights experts as you pursue new policies.
One year into your administration, you have continued the misuse of a xenophobic Trump-era policy that weaponized an obscure provision of Title 42 of the U.S. code to summarily block and expel individuals, often repeatedly, from the U.S. southern border, without providing them the opportunity to seek asylum or the ability to access any protection screening required by law. These new flights to Colombia come amidst troubling reports that your administration placed on hold plans to restart asylum processing at U.S. ports of entry and that high-level officials have resisted ending Trump-era asylum restrictions, including Title 42 expulsions.
Title 42 expulsions have nothing to do with protecting public health and are not necessary to protect the public from the spread of COVID-19. Since the start of the COVID-19 pandemic, public health experts, the UN Refugee Agency, and other humanitarian advocates have demonstrated that it is possible to protect public health and ensure access to asylum simultaneously. In fact, the Centers for Disease Control and Prevention (CDC) objected to the use of Title 42 for mass expulsions of migrants and confirmed such expulsions lacked a valid public health basis. Your Chief Medical Advisor Dr. Anthony Fauci has himself stated that immigrants are “absolutely not” driving a COVID-19 outbreak and that expelling migrants is not a solution to an outbreak.
Over the past twelve months, your administration expelled people—often expelling the same person repeatedly—from the U.S. southern border more than one million times. In just the first seven months of your administration, U.S. border officials carried out 704,000 expulsions, a significant increase from the Trump administration’s 400,000 expulsions conducted over ten months. In addition to the new expulsion flights to Colombia, DHS also carries out land expulsions to Mexico and expulsion flights to send individuals and families back to their countries of origin, including Haiti, Guatemala, Honduras, and Brazil. Even though your administration has acknowledged that “Haiti is grappling with a deteriorating political crisis, violence, and a staggering increase in human rights abuses…” – the U.S. has since September 2021, inexplicably chartered nearly 150 flights of almost 16,000 Haitians, including families with infants, back to a country that is unquestionably unsafe without offering them any opportunity to seek protection before expulsion. These expulsions under Title 42 violate the law and risk sending people back to dangerous conditions – sometimes the very ones that caused them to seek safety in the first place.
As you are aware, Venezuela is currently facing a severe economic, political, and humanitarian crisis. Millions of Venezuelans have left the country due to political persecution, a collapse of basic services, food insecurity, and rampant violence. Over 1.7 million Venezuelans are being hosted in Colombia and many have been granted temporary status there and only a small percentage of Venezuelans have sought asylum in the United States; however, Colombia is not safe for all Venezuelan migrants and refugees. Venezuelans, and all other individuals fleeing persecution have the right to seek asylum under U.S. law and to have their claims for protection assessed on a case-by-case basis. Your administration is blatantly violating the law by expelling these people to other countries in the region, such as Colombia, and we are deeply troubled by the informal and opaque arrangements with third countries that facilitate these expulsions. Your administration terminated several such agreements with Central American countries when you came into office, making these new flights especially concerning.
During its first year in office, your administration committed to a comprehensive regional approach to migration, aiming to strengthen asylum systems and refugee resettlement programs in the region and promote “safe, orderly, and humane migration.” Despite this pledge, your administration’s actions suggest that the United States seeks out negotiations with countries throughout Latin America that externalize its borders further south, shifts responsibility to countries already hosting millions of refugees, and impedes people’s ability to seek protection in the United States. Earlier this month, under pressure from your administration, the Mexican government implemented new requirements that Venezuelans obtain a visa to travel to Mexico. According to reports, your administration has also requested that Mexico sign a safe third country agreement, which could effectively block most individuals (except Mexicans) from seeking asylum in the United States.
We urge your administration to abandon efforts to prevent people from seeking asylum through externalized migration controls in the region and to undermine the right of people to seek protection in the United States. As you pursue other regional efforts, it is imperative that your administration operate with increased transparency and engage with asylum and human rights experts about potential efforts such as anticipated regional compacts on migration with other countries in the Americas. While regional protections must be strengthened, these efforts must not and need not come at the expense of existing protection mechanisms and access to asylum at the U.S.-Mexico border, including at ports of entry.
Your administration has the responsibility to uphold U.S. refugee law and treaty obligations. We call on your administration to cease further expulsions of Venezuelan migrants to Colombia, and to immediately end its use of all expulsions under Title 42. Our organizations continue to welcome the opportunity to engage on and inform how to promote a protection centered approach to “safe, orderly, and humane migration,” including restoring access to asylum at the border, including at ports of entry.
immigrants’ rights = human rights = civil rights = racial justice = economic stability = common good
By failing miserably on the first, the Administration has found itself flailing and failing on the rest.
Nowhere is this more apparent than at DOJ! Garland has squandered the precious first year in office by NOT cleaning house at EOIR and bringing in practical experts in immigration/human rights/due process to remake and reform the system so that it can deal fairly, timely, and justly with asylum applicants applying at the border and and elsewhere in the U.S., as they are legally entitled to do.
Instead of expertly culling the vast majority of backlogged pending cases which are neither priorities nor viable removal cases at this point, Garland has built the unnecessary, largely self-created backlog at a record pace to more than 1.6 million with no end in sight! Add that to his disgraceful failure to stand up against illegal and immoral policies and clear violations of human rights at the border by his own Administration and you get today’s catastrophic situation.
“Standing tall” for the rule of law (and human decency) is supposed to be the Attorney General’s job. Why are these NGOs being forced to do it for him?
How bad have things gotten at Garland’s DOJ? This has already been a tough week that saw his DOJ attorneys “blow” a plea bargain in a major civil rights case, be excoriated by the 4th Circuit in a published case for a miserably botched performance in what should have been a routine “reasonable fear” case, and have Chairwoman Lofgren introduce her Article 1 bill with a broadside against DOJ’s horrible stewardship over EOIR.
As if to punctuate Chairwoman Lofgren’s critique, Garland topped it off with this gem: a beatdown in a pro se Salvadoran asylum case, which OIL basically failed to “pull” although the BIA decision conflicted with Garland’s own more recent precedent, from a Fourth Circuit panel that included two recent Trump appointees not heretofore known for vigorously defending asylum seekers’ rights!https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/pro-se-ca4-psg-remand-luna-deportillo-v-garland
Folks, this is NOT “good government.” Not by a long shot!
There is no more important task — NONE — facing DOJ than pumping some due process and quality back into immigration law and making the long overdue management, personnel, procedural, and legal quality reforms at EOIR.
Yes, that apparently would require Garland to take on some folks at the White House who obviously consider human rights to be a “political strategy,” integrity and courage optional, and live in mortal fear of Stephen Miller and far-right nativists. It would mean taking decisive actions to treat asylum seekers and other migrants (including many individuals of color) as “persons” under our Constitution. It would end the intentional “Dred Scottification of the other.” It would send some Sessions/Barr “plants and holdovers” packing from their current jobs!
Unquestionably, these moves would incite predictable, tiresome, apoplectic reactions by Miller and the GOP White Nationalist cabal on the Hill. They would put Garland “in the spotlight” and interrupt the serenity of his inner sanctum on the 5th floor of the DOJ where he apparently likes to contemplate the world and “things other than due process for immigrants.”
But, taking on folks like that is what good lawyers are supposed to do. As a public lawyer, it’s not just about being somebody’s “mouthpiece” — it’s standing up for the rule of law!
I among many others have said from the outset that Garland won’t be able to sweep the total meltdown at EOIR and in immigration legal positions under the table, much as he obviously would like them to go away! Yes, he inherited an awful mess from his Trump predecessors. But, almost a full year in, that doesn’t absolve him of responsibility for failing to initiate the common sense steps to fix it and to bring in experts who actually know what they are doing and have the guts and backbone to follow through — even when the going gets tough, as it undoubtedly will. The problems at DOJ go far beyond EOIR; but,EOIR must be the starting place for fixing them. There is no more time to lose!
It’s time for Garland to start worrying about running “America’s most unfair and dysfunctional courts,” defending grotesque human rights violations and scofflaw policies by his own Administration, and a DOJ that takes untenable and embarrassingly bad legal positions before the Federal Courts. Much as he’d like to pretend that “immigration doesn’t matter,” or expressed a different way “human lives don’t matter if they are only migrants,” he’s starting to get pressure from Congress, the Article IIIs, and NGOs to fix EOIR and “shape up” the DOJ’s lousy, sometimes unprofessional and ethically questionable, approach to immigration, human rights, and racial justice issues. Justice for immigrants is the starting point for achieving racial justice in America. PHOTO: Wikipedia Commons
Garland’s failure to institute widely recommended common sense legal reforms — government for the common good — at EOIR undermines our democracy while endangering “real” human lives every day! That’s a toxic legacy that he won’t be able to avoid!
“After Adan de Jesus Tomas-Ramos, a citizen and native of Guatemala, reentered the United States illegally in 2018, a removal order previously entered against him was reinstated. But because Tomas-Ramos expressed a fear of returning to Guatemala, an asylum officer conducted a screening interview to determine whether he reasonably feared persecution or torture in his home country. The asylum officer determined that Tomas-Ramos failed to establish a reasonable fear of such harm, and so was not entitled to relief from his reinstated removal order. An Immigration Judge (“IJ”) concurred with that determination. Tomas-Ramos now petitions for review of the IJ’s order on two grounds. He first contends that the IJ’s finding that he lacked a reasonable fear of persecution or torture was erroneous. We agree. The primary ground for the IJ’s decision was that there was no “nexus” between the harm Tomas-Ramos faced and a protected ground. But the agency incorrectly applied the statutory nexus requirement. Instead, the record compels the conclusion that Tomas-Ramos was persecuted on account of a protected ground, in the form of his family ties. And in light of that error, we cannot determine that the other reason given by the IJ for her decision – that Tomas-Ramos could avoid harm by relocating – was supported by substantial evidence. Accordingly, we grant the petition for review, vacate the agency’s decision, and remand for further proceedings.”
[Hats off to Michael D. Lieberman, Simon Y. Sandoval-Moshenberg, Stacy M. Kim, Paul F. Brinkman, and Michael A. Francus!]
—
Daniel M. Kowalski
Editor-in-Chief
Bender’s Immigration Bulletin (LexisNexis)
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DOJ’s error-studded performance (or lack thereof) in this case is disgraceful!
I guarantee that there are plenty of other unjust, legally defectivereasonable fear and credible fear decisions where these came from. Just most folks never get any meaningful judicial review.
Both the IJ and the AO got the basics of nexus and the applicable 4th Circuit case law totally wrong here. How are is this acceptable performance from what are supposed to be “expert” courts? Why hasn’t Garland brought in real experts, committed to due process and best practices, to take charge and straighten out this mess?
Disturbingly, the Biden Administration wants to turn this type of clearly inadequate procedure with poorly trained officers and judges and incorrect applications of the law loose on the merits determinations for all asylum seekers at the border!
Rather than being a check on bad judges, Garland’s OIL continues to “defend the indefensible” with arguments that don’t meet “the straight-face test.” Aren’t ethical codes equally applicable to Government lawyers?
Worse yet, Garland continues to unethically defend the scofflaw behavior of the Biden Administration by using a Stephen Miller era “COVID pretext” to deny most asylum seekers at the Southern Border any process, even the pathetic one used here!
The “wheels have come off” @ Garland’s DOJ and he’s driving on the axel hubs! When is someone going to pull him over and make him fix it?
Believe it or not, these are life or death cases! ☠️ Why is Garland allowed to treat the lives and rights of migrants and those associated with them so frivolously?
The IJ’s attempt to bar the R’s attorney from participating in the “credible fear” review is ridiculous! It shows the deep problems in Garland’s broken system which too often is deaf to due process, hostile to attorneys, and immune from common sense and best practices! Why would the “default” for regulatory silence be “no participation” rather than a “strong presumption that attorneys can fully participate?” What kind of “court” bars attorneys from speaking for their clients? Why would any judge not want to listen to attorneys, who are there to help them make correct decisions? The IJ’s conduct here was particularly egregious given that she had already made a clearly wrong decision before cutting off the attorney’s attempt to point out her errors! What a complete farce that Garland has failed to address!
This is another case where Circuit Judge Allison Jones Rushing, a Trump appointee with solid conservative credentials, once thought to be a possible contender for the “ACB seat,” joined her colleagues (Judge Harris and Chief Judge Gregory) to overturn a wrong, anti-immigrant decision by EOIR. Her approach in this and another recent case shows more sensitivity to due process, scholarship, and the rights of individual immigrants than many decisions emanating from Biden’s Immigration Courts under Garland.
I’m not suggesting that Judge R is necessarily going to become a leading defender of due process for immigrants. But, based on these somewhat random “snippets,” she seems more “reachable” and open to sound arguments on the issues than some other Trump appointees, points worth keeping in mind for NDPA advocates!
She’s also young. So, she will be reviewing immigration cases and making law for decades to come.
(CNN)The Biden administration, unable to return an increasing number of Venezuelans arrested at the US-Mexico border to their home country, is now sending those migrants to Colombia if they previously resided there, according to two Homeland Security officials.
White House officials have grown increasingly concerned about the large numbers of single adults continuing to cross the US southern border, particularly from countries that Mexico won’t accept under a controversial Trump-era policy, two sources familiar with discussions said.
The flights of Venezuelans to Colombia, which have not been previously reported, marks another effort by the administration to try to stem the flow of migrants, pushing those who arrive further away from the US-Mexico border including those seeking asylum.
In December, US Customs and Border Protection encountered more than 13,000 single adults from Venezuela on the US southern border, compared with 96 in December 2020, according to agency data.
A humanitarian crisis and political instability have taken hold of Venezuela in recent years. Around 6 million people have fled the country, according to the United Nations, usually fleeing to other parts of Latin America which have also struggled during the pandemic.
There’s been bipartisan acknowledgment of the deteriorating situation in Venezuela. Last year, Sens. Marco Rubio, a Republican, and Bob Menendez, a Democrat, introduced a Senate resolution expressing alarm over the situation in the country.
Colombia also granted temporary legal status to Venezuelans who had fled there, allowing them to legally work in the country. But for those who opted to journey to the US-Mexico border to seek protections in the US, expulsion to Colombia now puts them thousands of miles away from the possibility of claiming asylum in the US.
The handling of the US-Mexico border has dogged the Biden administration since the early days of Joe Biden’s presidency as a growing number of migrants journey to the United States, fleeing deteriorating conditions in the western hemisphere. Republicans have recently seized on the releases of migrants — some of whom can’t be expelled because of their nationality — citing it as another example of what they describe as the administration’s poor management of the border.
Under a public health authority, known as Title 42, authorities can swiftly remove migrants encountered at the US southern border, effectively barring those seeking asylum from doing so and marking an unprecedented departure from previous protocol. The authority was invoked at the onset of the coronavirus pandemic, despite suspicions among officials that it was politically motivated.
The White House has repeatedly referred to the Centers for Disease Control and Prevention on the future of the policy, saying the agency deems it necessary given the Delta and Omicron variants.
Last Thursday, the Department of Homeland Security returned two Venezuelan nationals to Colombia, where they had previously resided, the department told CNN, adding that flights to Colombia are expected to take place “on a regular basis.”
“As part of the United States COVID-19 mitigation efforts, DHS continues to enforce CDC’s Title 42 public health authority with all individuals encountered at the Southwest border. However, DHS’s ability to expel individuals may be limited for several reasons, including Mexico’s ability and capacity to receive individuals of certain nationalities,” DHS said in a statement, adding that the department has removed migrants to third countries in the region where they had lived or had status.
DHS has also acknowledged the precarious situation in Venezuela by granting a form of humanitarian relief for Venezuelans already in the United States.
Still, the Biden administration has continued to rely on the public health authority and recently defended it in court — a move that received criticism from immigrant advocates and Democratic lawmakers. The latest decision to expel migrants from Venezuela — a country in crisis — to Colombia reveals a further dependence on the public health authority amid a growing number of Venezuelans arriving at the US-Mexico border.
In December, US Customs and Border Protection encountered 24,819 Venezuelans at the US southern border including single adults, families and minors, up from the previous month and continuing an increasing trend. As a point of comparison, in December 2020, CBP encountered only around 200 Venezuelan migrants, according to agency data.
While tens of thousands of migrants have been turned away at the US-Mexico border, some, like South Americans, aren’t accepted by Mexico and therefore those nationals largely can’t be expelled. Under the public health authority, DHS has removed migrants to Guatemala, Honduras, El Salvador and Brazil.
Some migrants from Venezuela crossed the border in Yuma, Arizona — often flying to an airport in Mexico and then crossing at a gap along the Colorado River, cutting the journey down to just days. It’s the most viable option for many Venezuelans and Brazilians, for example, who can’t obtain a visa that allows them to work in the US — or can’t afford the years-long wait for the legal immigration process. Mexico recently put new visa restrictions in place for Venezuelans traveling to Mexico.
The US has previously taken measures to try to lower the number of migrants at the US-Mexico border. Last year, the administration started flying migrants apprehended at the southern border and subject to the Trump-era border policy linked to the pandemic to the interior of Mexico.
Forced migration is real, no matter what fictions and myths Administrations of both parties use to deny it.
Pretending otherwise, and that lawless deportations and “deterrence” will materially change the forces that drive it, is both immoral and ultimately futile.
New arrivals in South Portland schools bring challenges and joy
With asylum seekers arriving in Portland housed in South Portland hotels, South Portland schools gear up for more English language learners and celebrate the excitement they bring.
Divine Nsimba Lukombo 12, left, an 8th grader from the Democratic Republic of Congo, and 7th grader Odett Mavezo Junizi 12, also from the Congo, work together in a science class at South Portland’s Memorial Middle School.
When classes started this year at Memorial Middle School in South Portland, there was just one humanities class for students beginning to learn English. Now there are three.
The school has rearranged the schedules of English language teachers, added an additional part-time English language teacher and upped the hours of a second teacher.
It has limited new enrollments because it has no more space and is relying on the middle school on the other side of the city to absorb any additional students who come into the district.
“We’re just supporting way more kids in those English language learning classes,” said Principal Rebecca Stern.
The changes are necessary because the school district is seeing an influx of English language learner students driven by the arrival of asylum seekers from African countries. It’s hard to know exactly how many of the students are asylum seekers, but officials in South Portland say the increases they’re seeing stem from the placement of many asylum-seeking families in emergency shelter in local hotels.
Since the start of the school year, the South Portland School Department has served 305 homeless students. That’s up from 180 last school year and just 34 in 2019-20. The school system has 522 English language learner students, compared to 328 last year. And overall enrollment now is at 3,021 students, up from 2,887 in October.
English Language Learner teacher Kara Kralik works with students at Memorial Middle School in South Portland last week. Shawn Patrick Ouellette/Staff Photographer
South Portland is one of five communities where the city of Portland is placing asylum seekers in hotels because of a shortage of shelter space and housing.
Portland officials reported earlier this month that new arrivals had driven the highest ever nightly averages of people in need of shelter. In the first three weeks of January, 39 families needing shelter arrived in Portland – about one-third the number the city saw in all of 2020.
School officials in Portland and some surrounding communities like Old Orchard Beach and Brunswick, which are currently housing asylum seekers or have in the past, said they aren’t seeing increases in new students. Freeport, which is housing some new arrivals from Portland, has seen a small one.
“I would argue that right now we are the most impacted school district in the state when it comes to new families, many of whom do not speak English and are housing vulnerable,” said South Portland Superintendent Tim Matheney.
Schools across the district – from elementary to high school – have mobilized to welcome the newcomers. Most come from Angola and the Democratic Republic of Congo and have spent months or even years traveling to the United States to escape violence or instability in their home countries. And many have missed long periods of school as a result.
Teaching the students English, enrolling them in classes and making sure basic needs such as housing, food and warm clothing are being met present challenges. Schools need to hire more staff – English language teachers, social workers.
But the new students are making their schools far more diverse and filling them with excitement during a challenging year.
“In America right now, as we go through the pandemic and how education looks post-pandemic, people are really sad,” said South Portland High School Principal Michele LaForge. “The anxiety of our students and our staff is really high. This has been a really hard time and it continues to be hard.
“Our new Mainers, in a lot of ways, the hardest thing they’ve ever experienced is behind them. So there’s this energy around these new students. They’re just so delighted to be here. They’re never absent. They’re excited every second of every day.”
FILLING IN THE LEARNING GAPS
At Memorial Middle School on a recent morning, English language learner teacher Elizabeth Dawson worked with a dozen students in a math class for newcomers. Just the week before, Dawson had been assigned a new sixth-grade student who hadn’t been in school for five years. She said it’s not unusual for students to have large gaps in their education, and it’s her job to catch them up.
“In all of our classes we have this philosophy of addressing language skills and gaps, but we also know these students are 14,” Dawson said. “They’re cognitively and developmentally middle school students, so we also need to make sure our content is challenging them on a seventh-grade level.”
Tanya Nsumu, 12, left, originally from the Democratic Republic of Congo works with Maria Bikuma, 14, from Angola during math class last week at Memorial Middle School in South Portland where there is an influx of asylum-seeking students. Shawn Patrick Ouellette/Staff Photographer
Maria Bikuma and Tanya Nsumu, two students in Dawson’s class, sat in the back munching on breakfast as their teacher led them in a word problem that everyone read aloud together. Bikuma, who is from Angola and arrived in Maine over the summer, said she is enjoying making new friends and being in school.
“I like America because it’s a good country,” said the eighth-grader. “I can study here and the teachers are good.”
Because she speaks English well, Bikuma often acts as a translator between teachers and her fellow students who are new to the country and whose first language is most often Portuguese or French. She said the teachers are patient and more involved in helping students than in Angola, where students were more self-directed.
“People understand quickly because the teachers explain very good,” Bikuma said.
Nsumu also arrived over the summer, from the Democratic Republic of Congo. She left her home country when she was just 6 years old and spent time in South America, Mexico and Texas. When she arrived in Maine, she spoke no English, though that has quickly changed.
“Here is different because I have a new teacher that teaches good,” said the seventh-grader. “I have an iPad. I have a new life.”
. . . .
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Read the rest of Rachel’s article at the link.
When I was a judge, I was often inspired by the amazing young people who came before me. Some of them had literally walked to the US, on perilous journeys, encountering unimaginable, sometimes unspeakable, hardships and trauma.
Their courage, life skills, and problem solving abilities were truly remarkable. Once here, many were helping their families while going to school and assisting their lawyers with their cases. Some were also involved in sports, music, or other extracurricular activities. (When I heard applause from my colleague Judge John Milo Bryant’s courtroom, I knew that was for another student-athlete or academic achievement.)
I often could see both English language proficiency and school grades improve from one court appearance to another. I invariably asked students about their progress in school. Many brought report cards to the next hearing to show me how they were doing.
I always told kids that no matter how their cases eventually came out, their education was theirs for life. So, I challenged them to take full advantage. And, most appeared to do so!
I saw some of them literally grow up and come of age in court and go on to contribute to our country and our communities while continuing to take outsized responsibilities for families. Many came from homes where the parents were both working two jobs to help forge better lives for their children.
Many of these cases eventually had happy endings. When they did, I always encouraged the younger generation to pay it back by helping their parents and insuring that they had the time, encouragement, and support to meet the requirements for naturalization so that they could become full participants in their communities and our nation.
Dr. Demetrios G. Papademetriou, president emeritus and co-founder of Migration Policy Institute, and founding president of MPI Europe, died Wednesday, January 26, at the age of 75. He was one of the world’s pre-eminent scholars and lecturers on international migration, with a rich body of scholarship shared in more than 275 books, research reports, articles and other publications. He also advised numerous governments, international organizations, civil society groups and grant-making organizations around the world on immigration and immigrant integration issues.
Papademetriou began his career as Executive Editor of the International Migration Review. After stints at Population Associates International and the U.S. Labor Department, he served as Chair of the Migration Group of the Organization for Economic Cooperation and Development. He then joined the Carnegie Endowment for International Peace’s International Migration Policy Program, which in 2001 was spun off to create the freestanding Migration Policy Institute.
He co-founded Metropolis: An International Forum for Research and Policy on Migration and Cities, which he led as International Chair for the initiative’s first five years and then served as International Chair Emeritus. He was Chair of the World Economic Forum’s Global Agenda Council on Migration (2009-11) and founding Chair of the Advisory Board of the Open Society Foundations’ International Migration Initiative (2010-15).
Papademetriou, who traveled the world lecturing and speaking at public conferences and private roundtables, also taught at the University of Maryland, Duke University, American University and the New School for Social Research.
MHC
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Demetrios was one of those amazing, charismatic, “larger than life” intellects who could “electrify” a room just by walking through the door. His ability to “connect” with audiences far beyond the world of scholarly research — and to appreciate the “human lives and heroic stories beyond the number-crunching” was unparalleled.
He led in “putting immigration scholarship on the map” — as an academic discipline, a ground-breaker in clinical legal education, and a basis for progressive migration and human rights policies in government and NGOs. Through his work at MPI, Carnegie, and other institutions, he used scholarship to spur and encourage practical “grass roots” reforms in our immigration system and, indeed, in the international migration system. Many leaders of today’s “New Due Process Army” can trace their “practical scholarly roots” to Demetrios’s inspiration and example!
Perhaps ironically, another recent posting on ImmigrationProf Blog points out how the Biden Administration has disturbingly and inexcusably failed to “cash in” on the full potential of the extraordinary growth in “applied migration scholarship” fueled by Demetrios, his long time friend and colleague former Immigration Commissioner Doris Meissner, MPI Executive Director Donald Kerwin, Jr., and other giants in the field.
Rather, the Biden Administration has veered far off-track on immigration, human rights, and social justice issues by placing politicos without immigration expertise and lacking both moral courage and belief in fundamental human values in charge of its flailing and failing immigration mess. In particular, these tone-deaf politicos have failed to “connect the dots” between immigrant justice and racial justice in America.
Not surprisingly, that has resulted in across the board failures, unfulfilled promises, and angry, disgruntled potential allies on meaningful reforms in both areas. This, in turn, has demoralized and turned off the younger, dynamic, diverse, progressive, expert immigration, human rights, and social justice leaders who are key to the future of the Democratic Party and the preservation of American democracy.
Talk about a lose-lose-lose approach! And, I guarantee that it hasn’t garnered one vote of support from “hard-liners” and “naysayers” who continue to mindlessly and dishonestly babble about “open borders!”
I’m not exaggerating here. Yesterday, I was on (Zoom) panels in Houston and DC. Both audiences and fellow panelists were stunned and outraged by the betrayal of due process, good government, expertise, common sense, and human values demonstrated by Biden’s “Miller Lite” approach to asylum at the Southern Border, the intentional mistreatment of migrants of color, and Garland’s beyond dysfunctional and chronically unjust Immigration Courts!
Particular disgust was reserved for the Administration’s intentional, continued, cowardly abuse of Haitian migrants. That, actually says more about their attitude toward true racial justice than the promise to appoint a Black Woman to the Supremes.
Welcome and long overdue as the latter is, it isn’t going to change the result on any major issue before this version of the Supremes. By contrast, the Biden Administration’s anti-Haitian policies are actually harming, dehumanizing, endangering, and even potentially killing Black migrants every day! No wonder they want to “sweep truth under the rug.”
It’s exactly the type of “applied stupidity,” willful blindness, intentional cruelty, and disdain for common sense, humanity, facts, and relevant experience that Demetrios would have resisted!
At ICE, there’s no need to bother presenting evidence, arguments, or making a record below because we know we can “rack up” victories before our stooges at Garland’s BIA!
“In 2019, the Department of Human Services (“DHS”) sought to remove Ilir Osmani, a refugee of the Kosovo War, based on his criminal convictions and crimes of moral turpitude. An Immigration Judge (“IJ”) granted Osmani’s petition for an adjusted status under 8 U.S.C. § 1159(a) and for waiver under 8 U.S.C. § 1159(c). The Board of Immigration Appeals (“BIA”) reversed the IJ’s ruling based on new arguments the government, after failing to take any position before the IJ or to provide any notice to Osmani, raised for the first time on appeal and denied Osmani’s motion to remand for additional factfinding on the conditions in Kosovo. We find the BIA legally erred by considering arguments the government did not present to the IJ, put Osmani on notice of, or develop any record evidence to support. In denying Osmani’s motion to remand, the BIA also abused its discretion by engaging in impermissible factfinding. Accordingly, we grant Osmani’s petition for review and remand to the BIA. … Accordingly, we GRANT the petition for review; VACATE the Board’s decision in this case; and REMAND to the BIA for further proceedings consistent with this opinion.”
[Hats way off to pro bono publico counsel Illyana A. Green, Chuck Roth and Matthew E. Price! Query: ICE removed Osmani in 2021…will they bring him back? Listen to the oral argument here.]
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The outrageous errors, pro-DHS bias, gross incompetence, and lack of judicial qualifications reflected by this BIA decision is absolutely stunning, as is the Biden Administration’s:
Deportation of the respondent while this court challenge to this error-fest was pending (the respondent was removed based on this illegal order in April 2021, well after the Biden Administration took office and a month after Garland was sworn in as Attorney General);
The DOJ’s prima facie unethical defense of the BIA’s denial of due process, failure to follow precedent, clear abuse of discretion, and legally indefensible actions here;
Continuing abuse of scarce pro bono resources and Article III judicial time by not bringing in fair, expert, new, due–process-dedicated BIA judges who would get these right in the first place, set proper precedents, and follow them (rather than avoiding them when they spell victory for the individual);
Also, who at DHS authorized an improper appeal on this record? (Obviously, DHS recognized that given the BIA’s pro-DHS bias, they could “mail it in” before the IJ, take a frivolous appeal, andSTILL HAVE THE BIA HAND THEM A TOTALLY UNDESERVED VICTORY!)
Folks, this is a Democratic Administration enabling this pattern of biased, unprofessional, and illegal conduct against immigrants which should bring a smile to Stephen Miller’s face! It’s also unfair and demoralizing to Immigration Judges who take the time to get it right and grant relief only to be arbitrarily and illegally reversed by Garland’s unqualified BIA on appeal!
Garland should have replaced leadership at EOIR and OIL, and also replaced the BIA, on “day one.” Instead, more than a year into a supposedly due-process-oriented Administration, the garbage continues to flow into the Article IIIs from Garland’s EOIR unabated, while the indefensible continues to be defended by OIL, like it’s “business as usual.” This happens because Garland’s message is that “Dred Scottification” of “the other” will be tolerated, defended, and protected at his DOJ.
Why is Garland being allowed to get away with running this system into the ground, ignoring due process, “blowing off” judicial and legal ethics, treating migrants unfairly, and building the unnecessary backlog at record levels?
Biden’s immigration polices leave Haitians stranded in Mexico
Friday, January 21, 2022
By Immigration Prof
Nicole Narea of Voxreports that the U.S. has deported nearly 14,000 Haitians to Mexico since September, according to data released by UN’s International Organization for Migration. In 2021, Mexico received more than 131,ooo asylum applications, of which an estimated 45% were Haitians and their Chilean-born children. Haitians in Mexico “face pervasive racism, and many are unable to work, have no access to medical care, and are targets for criminals,” Narea writes.
Mexico is seeing an uptick in Haitian asylum applicants.
The Biden administration continues to enforce pandemic-related border restrictions that have kept out the vast majority of asylum seekers, including Haitians.
This disingenuous action by the Administration comes at a rather inopportune time, just as they are “getting heat” for failing to deliver on promises to Black voters. Additionally, the latest Pew Study shows that immigrants now make ump 10% of the U.S. Black population and that they are “more than holding their own” in terms of education and economic contributions.
Looks like many of the “immigrants we need” (and who also need us), according to Suzanne Clark of the U.S. Chamber of Commerce, have mindlessly been dumped in Mexico at great human and fiscal cost that actually results in a “negative achievement.” (That’s notwithstanding the White Nationalist myths perpetrated by the 5th Circuit and GOP AGs and not always effectively opposed by the Biden Administration. How do you purport to end “Remain in Mexico” while denying asylum seekers any right to seek refuge at the border? Not very effectively, it appears!)
“Aires Daniel Benros Da Graca petitions for review of a decision of the Board of Immigration Appeals (the “Board”) affirming his order of removal and denying his requests for cancellation of removal and voluntary departure. Because we find that a conviction under Rhode Island General Laws (“RIGL”) § 31-9-1 is not categorically a theft offense, we grant the petition for review, vacate the decision below, and remand for further proceedings.”
“Appellant Imad Jaffal, born in Jordan, seeks a declaration that he is entitled to derivative U.S. citizenship under former 8 U.S.C. § 1432(a). That statute provides that “a child born outside the United States automatically acquires United States citizenship if, while the child is under the age of eighteen, the parent with legal custody of the child is naturalized while that child’s parents are legally separated.” Jaffal’s father was naturalized when Jaffal was seventeen years old, and Jaffal presented evidence to the District Court that he was in the sole legal custody of his father when his father was naturalized and his parents were separated. The District Court, however, declined to accept Jaffal’s evidence of his parents’ divorce. Because we conclude that was error, we will reverse the order of the District Court and remand the matter with instructions to issue a judgment declaring Jaffal to be a national of the United States.”
Here’s my favorite quote from Judge Torresen’s decision inDa Garcia v. Garland:
Despite this apparent disconnect between RIGL § 31-9-1 and the Board’s definition of theft offense, the Board in Da Graca’s case determined that to prove the statute’s overbreadth, the Petitioner was required to identify actual cases in which Rhode Island had enforced the statute against de minimis deprivations of ownership interests. Da Graca contests the Board’s imposition of an actual case requirement and argues that he “need not necessarily proffer specific examples of Rhode Island prosecutions in order to establish a ‘realistic probability’ that the state would apply its statute to conduct that falls outside the generic definition of a crime.” We agree with Da Graca.
Essentially, Garland’s BIA “makes it up as it goes along” to reach a denial, then Prelogar’s DOJ attorneys defend the illegal result. Sounds like a really bad system, lacking accountability, expertise, common sense, and, sometimes, professional responsibility.
Lest you think that the legal nonsense being produced by Garland’s BIA and the USCIS is “below Prelogar’s radar screen” in her exulted position, that’s NOT true! Every adverse decision suffered by the USG must be reported to the SG’s Office with an analysis and recommendations from the agency’s attorneys, the litigators who handled the case, the appellate section of litigating division (here the Civil Division), and the SG’s staff. No appeal, petition for rehearing en banc, or petition for cert. can be filed without the express authorization of the SG’s Office.
So, Prelogar is well aware of the bad positions, unfairness, and poor work product DOJ attorneys are defending (sometimes with a lack of candor or misleading the courts) and their abuses of the time of the Article IIIs.
Even with the “real” (Article III) Federal Courts moving markedly to the right (following four years of Trump-McConnell appointments and eight years of lackadaisical performance by the Obama Administration), and rules that strongly favor the Government on judicial review, DOJ’s haphazard performance under Garland and Prelogar continues to earn a stream of avoidable “kickbacks” from the Article IIIs. The DOJ system is broken in many places — EOIR is just the most obvious, most pressing, and most easily addressed area of failure.
At the same time they acknowledge but downplay the existential crippling effects of Garland’s failure to bring progressive reforms to EOIR, his defense of disgraceful, immoral, and inhumane “Miller Lite” positions in Federal Court, his intentional indifference to human suffering and the complete breakdown of the rule of law at our borders, and his disdain for removing the Trump enablers, deadwood, and poor lawyers from DOJ — at all levels.
I have a radically different perspective on the future of meaningful progressive immigration reforms, based on my nearly 50 years of involvement with the system on both sides and at all levels — more than most folks.
There will be no meaningful, sustainable immigration reforms without a radically reformed, remade, Immigration Court system with a judiciary of due-process-oriented progressive experts who have the courage to “speak truth to power,” stand up for the legal, constitutional, and human right of the most vulnerable, and put integrity, humanity, and the best interests of our nation above career advancement, survival, or “ingratiation with the powers that be.” That’s NOT Garland’s DOJ — which remains largely the out of control, often ethically challenged morass that he inherited from his predecessors.
Let’s not forget that through intentional misuse of precedents, weaponization of EOIR, and White Nationalist litigation strategies, Jeff Sessions was able to largely disable the entire asylum system, including USCIS Asylum Offices, and shift USCIS Adjudications from service to “enforcement only,” in preparation for the “final eradication” of asylum and crippling of our entire legal immigration system by his crony and former subordinate, Stephen Miller. And, the folks who helped him do that and “went along to go along” with abuses are still largely on board and in key positions in Garland’s DOJ — actually operating with his apparent “stamp of approval.” Outrageous!
From a due process, human rights, progressive, good government, equal justice, racial equality standpoint, as well as from any aspect of moral leadership on fundamental values, Garland’s performance at DOJ has been unacceptable. Has Garland visited any of the camps in Mexico or gone to the “New American Gulag” to witness first-hand the human carnage for which he is responsible? Heck no! That’s a job for progressive experts whose input and advice he then shuns, ignores, and “tunes out!”
For progressive advocates to downplay the Biden Administration’s gross failures or “over-cheer” incremental progress that means little without fundamental reforms at EOIR and the DOJ only deepens the fecklessness of their own positions and furthers the disrespect and under-appreciation of their efforts, potential power, and value that has become an endemic feature of the Democratic Party.
The Biden Administration might talk a good game, particularly around election time; but, in reality, they are governing largely in fear of and like nativist Republicans — but getting no “political return” whatsoever for betraying their supposed values and their base (see, Catherine Rampell). Advocates reward and tolerate such disgraceful and intellectually dishonest conduct at their own peril!
Meanwhile, Suzanne Clark, President of the U.S. Chamber of Commerce, certainly no “progressive shill,” speaks truth about the need for and our ability to accept more immigrants:
Allowing more immigrants into the US would help mitigate both soaring inflation and the current labor shortage, the CEO of the US Chamber of Commerce said.
“We need more workers,” Suzanne Clark told reporters Tuesday, per CNN. “We should welcome people who want to come here, go to school, and stay.”
“That is a place the government could be particularly helpful and we do believe it would be anti-inflationary,” she said, per CNN.
Those immigrants are right in front of us: rotting in camps at the border, being returned to danger or death with no process — both as a result of Garland’s failure to re-establish our legal asylum system at the border — or languishing in Garland’s mushrooming 1.6 million Immigration Court backlog!It doesn’t take a “rocket scientist” to see that instead of wasting time, money, and resources on mindless “enforcement” intended to deter and discourage those who might help us by helping themselves, we should have set up fair and timely processing systems, staffed by experts, that would identify the many individuals at the border and already in the U.S. who can qualify to remain under fair and properly generous interpretations of asylum law, withholding, CAT, U & T visas, “stateside processing waivers,” cancellation of removal” (for those already here), TPS, and other possibilities.
This is just as much”law enforcement” and “maintaining the integrity of our system” as are the efforts to increase deportations, terrorize communities, or close borders to “deter” migrants (primarily those of color) that has been practiced to some degree by every Administration. It also makes sense, economically, practically, and ethically.
It starts with an Attorney General and DOJ with the courage and vision to end the “deterrence only” misconstruction of our laws and stand up for the legal and human rights of migrants, regardless of race, color, creed, or manner of entry. That’s not what Garland has been doing to date! Too bad, because there will be no resolution of immigration issues — nor will there be racial justice in America — without an AG who will stand up for the real rule of law rather than the parody of the law and justice purveyed by Miller and his White Nationalists and still being parroted and too often defended by Garland and his minions.
Biden’s “Shadow Attorney General” speaks through the likeness of Merrick Garland! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.comCNN Digital Expansion 2019, Priscilla Alvarez Politics Reporter, CNN
“Today we heard the same unconvincing arguments from the Biden administration that we’ve been hearing for the last year about this xenophobic and baseless policy, arguments that have already been rejected in federal court. Title 42 unjustly and unnecessarily inflicts harm on families seeking asylum at our border, and we will continue to work tirelessly to ensure that this policy ends once and for all,” said Diana Kearney, senior legal adviser with Oxfam America, in a statement.
In a recently released report, Human Rights First found nearly 9,000 reports of kidnappings and other violent attacks against people who had been expelled to Mexico or blocked from seeking protection in the US.
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Read Priscilla’s full story on the bottomless depths to which Garland has taken American “justice” and the Department of “Justice” at the link.
I can always count on Garland to illustrate and punctuate my points about his unfitness for the job of achieving racial equality, re-establishing the rule of law, and promoting human rights in America, not to mention his total unsuitability and inability to run a fair, impartial, due-process-oriented court system! He probably would have been right at home with the “GOP Six” on the Supremes.
A year ago, who would have thought that Biden and Garland share this guy’s vision of “justice” for migrants at the border and at EOIR? Image: Hernan Fednan, Creative Commons License
Dear Paul:
In this week’s First Page, we focus on the one-year anniversary of the Biden presidency — with a particular focus on policies that impact migrants and asylum seekers.
Our recently published report makes clear that the administration’s continuing use of Trump-era restrictions has led to escalating human rights violations and needless disorder.
We believe that the United States must welcome people seeking refuge with dignity, not deliver them to danger.
REPORTING THE RECORD
On Thursday, Human Rights First released a new report finding that after a year in office, the Biden administration’s continued implementation of Trump-era restrictions is sending to danger thousands of families and individuals who seek asylum protection in the United States.
The data assembled in our report, “A Shameful Record: Biden Administration’s Use of Trump Policies Endangers People Seeking Asylum,” is a damning indictment of the U.S. government’s border policies.
Courtesy Adrees Latif/Reuters
Between January 2019 and January 2022, our research identified more than 10,000 reported kidnappings, rapes, acts of torture, and other grievous acts of violence against migrants and asylum seekers blocked in, returned to, or expelled to Mexico under the U.S. government’s “Remain in Mexico” and “Title 42” policies.
At least 8,705, or 85%, of these attacks occurred during the first year of the Biden presidency.
“President Biden’s first year in office has set a shameful new record on human rights as his administration continues to deliver asylum seekers to danger in Mexico,” saidKennji Kizuka, associate director for refugee protection research at Human Rights First and co-author of the report. “The Biden administration is well aware of the grave harm asylum seekers suffer when sent to Mexico and yet it has continued to use a policy condemned by public health experts, international authorities, civil rights leaders, and even departing members of President Biden’s administration.”
Courtesy ReuterS
Our report makes clear that kidnappings and rapes of returned migrants – including of children – are common.
Cartels and other organized criminal groups in Mexico have turned torturing asylum seekers and extorting their U.S. family members into a new and lucrative illicit enterprise. At least three asylum seekers sent to Mexico by DHS under these policies were murdered.
Equally frightening, our research shows that Mexican police, immigration officers, and other authorities are often complicit in – if not directly responsible for – these attacks.
Courtesy Getty
As the Biden administration restarts the inherently flawed “Remain in Mexico” program in the wake of court rulings, they have already sent asylum seekers from Cuba, Nicaragua, Venezuela, and other countries to “wait” for their day in immigration court in danger in Mexico.
In addition to inflicting grave and systematic suffering, these policies continue to perpetuate disorder, encourage repeat entries, inflate apprehension statistics, cause family separations, and fuel cartels by putting a bullseye on the backs of people seeking U.S. asylum who are blocked in Mexico.
Despite the Biden administration’s earlier efforts to terminate “Remain in Mexico,” when it was ordered by a federal court to re-implement the program, the administration has now chosen to expand its scope.
Today the administration is defending the expulsion policy in federal court, with a hearing in a lawsuit challenging expulsions of families at the D.C. Circuit Court of Appeals.
HIRING FOR HUMAN RIGHTS
Reports like A Shameful Record are just one element of our critical efforts to defend the dignity of all people.
Human Rights First seeks passionate team members who are interested in legal, communications, development, finance, and innovation work that can change lives, impact policy, and move public opinion.
Please check out our careers page and apply to join us today.
* * * * *
Watch for more news as our work for human rights continues. And please stay in touch on social media:
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You can read the full version of “A Shameful Record” at the above link.
Not to mention that the extreme lack of expertise, humanity, and quality control in Garland’s wholly-owned Immigration Courts is corroding American justice from the “retail level” up. So unnecessary! So divisive! Such a missed opportunity for Dems to actually govern with values and in the public interest!
Wow! Think of the incredible waste: So much talent, energy, creativity, and manpower that could be working with the Administration to solve problems and make things better for everyone. Instead they are engaged in an all-out war to stop the Biden Administration’s cruel, spineless, and highly ineffective immigration and human rights blunders and, once again, be the last line of defense for American democracy against the Dems’ self-destructive policies and actions.
But these are, mostly, obscure policy changes or unrealized proposals. When Miller et al. condemn Biden’s “immigration record,” they zero in on his decisions at the Southern border.
Which is, frankly, odd. You’d never know it from the right-wing hysteria about Biden’s supposedly “open borders,” or Biden’s own campaign promise to “end Trump’s detrimental asylum policies.” But Biden has continued Trump’s most restrictionist, inhumane and possibly illegal border policies.
In some cases Biden has even expanded them.
As evidence of Biden’s supposedly lax border policies, Republicans sometimes cite his attempt, on Day One of his presidency, to end the program informally known as “Remain in Mexico.” This Trump-created program forced asylum seekers to wait in dangerous camps in Mexico while their U.S. cases were processed; there, vulnerable immigrants have been frequent targets for rape, kidnappings, torture and murder.
If Biden had terminated the program, that would have been a good thing, from a human rights perspective (not a Republican priority, apparently). But Biden did not succeed. After a legal challenge, a federal judge ordered the program to be resurrected — and the Biden administration not only obeyed but also expanded the program’s scope to cover even more categories of immigrants.
[Catherine Rampell: Joe Biden is president. Why is he maintaining Trump’s immigration agenda?]
Worse, Biden has maintained Trump’s Title 42 order. This likely illegal order involves automatically expelling hundreds of thousands of people encountered at the border without ever allowing them to apply for asylum, in contravention of rights guaranteed under both U.S. and international law. Both Trump and Biden have cited a little-used public health provision as pretext for this policy, even though legions of public health experts have argued that it doesn’t protect public health.
Perversely, continuing this Trump policy has also given ammunition to the hard-right nativists, because it has the unintended consequence of inflating the count of U.S. border crossings. Many of those expelled immediately turn around and attempt another crossing; in fiscal 2021, 27 percent of individuals were apprehended multiple times by Border Patrol, nearly quadruple the share in 2019.
The disconnect between GOP claims about “open borders” and Biden’s actually-quite-Trumpy border policies, is enormous. Two of Biden’s own political appointees who resigned last fall lambasted his actions as “inhumane” on their way out the door; six other high-level immigration officials have recently announced they were leaving the administration, without much public explanation.
It’s unclear why Biden has maintained his predecessor’s policies. One possibility is politics — that these choices were intended to stave off right-wing attacks about lax enforcement. If that was the motivation, though, it failed. Instead, Biden has delivered the worst of all worlds: inhumane, immoral, potentially illegal policy — and bad-faith political blowback about “open borders” all the same.
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Yup! It’s what “Courtside” has been saying all along!Read her complete article at the link!
Catherine sees much more clearly than any member of the Biden Administration the ridiculous failings of their so-called “immigration policies” (actually a series of disjointed, often self-contradictory, knee-jerk responses that sometimes undermine each other and reflect a total lack of thoughtful, morally courageous, informed leadership).
And, Catherine doesn’t even highlight the single biggest failure — one that cuts across every failure she mentions and also goes to the heart of our legal system!
That’s, of course, the abject failure of Biden AG Merrick Garland to bring due process reforms and better judges to his totally dysfunctional, grotesquely unfair, wholly-owned U.S. Immigration Courts. These “courts” — that function more like 21st Century Star Chambers than anyone’s concept of a “real court” — were “weaponized” by Garland’s Trumpy predecessors, Sessions and Barr.
They filled the courts at all levels with less than well qualified judges, many with no immigration experience or prosecutorial experience only, who were intended to help carry out the White Nationalist, anti-asylum, anti-immigrant policies developed by Gauleiter Stephen Miller. Garland has not replaced these unqualified judges with better talent, selected in a open, transparent, merit-based process with “outside input.” He has failed to make the substantive and procedural reforms necessary to bring order and some semblance of efficiency to his hopelessly backlogged “courts.”
He has declined to remove poor leaders appointed by his predecessors; nor has he tapped the large supply of progressive, expert human rights/immigration talent who could begin the process of restoring due process. He has continued to promote enforcement “gimmicks” — like “Dedicated Dockets” and the illegal use of Title 42 — that accelerate “Aimless Docket Reshuffling” and have led to even higher backlogs.
His refusal to bring common sense, achievable reforms, and better judges to the Immigration Courts has demoralized lawyers and made pro bono representation even more difficult.
He has ignored the pressing need for better judicial training implemented by qualified outside experts. He hasn’t bothered to engage with those like the VIISTA Villanova program turning out exceptionally well-trained potential “accredited representatives” who could help reduce the staggering representation gap in his courts. Worse yet, he has allowed EOIR bureaucrats to create entirely new backlogs in the agency process for recognizing pro bono organizations and accrediting their representatives.
Garland’s horrible failure to energize and attract the progressive leadership and judicial talent who know how to begin solving these problems (rather than aggravating them) might eventually go down as one of the biggest “blown opportunities” for due process reforms in modern American legal history! This is the “low hanging fruit” that Garland and the Biden Administration has allowed to “rot on the tree.” What a (needless and deadly) tragedy!
Yilun Cheng Immigration Reporter, Columbus Dispatch PHOTO: TwitterAttorneys who complain about misbehaving judges in Merrick Garland’s dysfunctional Immigration “Courts” might well find themselves in uncomfortable positions! Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
In the fall of 2020, “Juan” had trouble falling asleep whenever he thought about his upcoming court appearance in Cleveland, where the only immigration court in Ohio is located.
The 43-year-old father of three from Mexico, who asked to remain anonymous for fear of retaliation, had already gone through three hours-long hearings for his application to obtain permanent residency. He said he was nervous and exhausted when he stepped into the court on Oct. 16, 2020, for his fourth hearing.
Juan expected from experience that he would once again face a series of aggressive questions from Judge Teresa Riley, whose intimidating style almost made him give up on his case altogether, he said.
But it still astounded him when Riley called Mexican immigrants “illegals” while cross-examining his wife about the subcontractors that Juan employed at his construction business.
Citing the experience of six anonymous immigrants, including Juan, the complaint accuses Riley of biases against Latino immigrants, bullying and hostile questioning, a lack of professional competence and other alleged misconducts.
But complainants like complainants like Juan and their attorneys said they have been disappointed that their efforts did not lead to any lasting changes or that there was little transparency in the investigation process.
Riley stopped hearing cases for a few weeks in July and August, but returned shortly after, according to hearing schedules shared with the Dispatch. It is unclear why the judge was absent.
. . . .
Because these complaints rarely generate substantial disciplinary actions and there is a fear of retaliation from the judges, immigration attorneys and their clients often hesitate to report misconducts, said Austin Kocher, a research associate professor at the Transactional Records Access Clearinghouse, a research institute at Syracuse University.
“Immigration attorneys don’t file these complaints often enough because they still have to practice in front of these judges,” said Kocher, whose research focuses on immigration policies. “You can’t file a complaint one day against a judge and the next day come in with your client and expect the judge to treat them well. There’s just a real lack of systematic accountability.”
. . . .
Emmanuel Olawale, a Westerville-based immigration attorney, said he has faced this dilemma firsthand. In October 2020, when he received a notice from the Cleveland Immigration Court that the asylum case of one of his clients was denied, he was disturbed by the language that Judge Jonathan Owens used in the decision.
In the asylum application, Olawale’s client, a 22-year-old asylum seeker from Cameroon, said armed officers from that country sexually assaulted her when she was a minor while they were searching for English-speaking dissidents like her family.
In an attempt to establish that the abuse did not happen due to the client’s identity, Owen stated that it is likely that officers raped the teenage girl not because she was a member of the English-speaking minority but because “they wanted to do so and thought that the respondent was a pretty virgin,” according to court documents shared with The Dispatch.
“If someone’s a ‘pretty virgin,’ is that a good reason for them to rape her in any context?” Olawale said. “That statement is misogynistic and very shocking to me.”
Instead of submitting a complaint against Owen, however, the immigration attorney opted to voice his concerns in an appeal, which is currently pending.
“Filing a complaint against the judge is something on the table,” Olawale said. “But it won’t really change anything in my client’s case. There’s also an imbalance of power in the courtroom and the fear of retaliation. I’ll have to weigh my options and consider how bad it is before I stick my neck out there.”
. . . .
Judges are not always made aware of the existence of a complaint in a timely fashion, and there is no transparency or consistency when it comes to sanctions imposed in a particular case, according to Dana Marks, president emerita at the National Association of Immigration Judges who spent 35 years on the bench in San Francisco, California, before retiring in December.
“It’s not consistent because a complaint usually starts out with the person’s immediate supervisor being told,” Marks said. “Some of the supervisors discuss the complaint with the judge immediately and others don’t. There’s a wide spectrum of when judges are notified, how much information they are provided, and whether they are allowed to give their side of the story before decisions are made.”
There is a fine line between judges’ taking a harsh stance on immigration and their exhibiting unprofessional behaviors, said Paul Schmidt, a former immigration judge based in Arlington, Virginia, who retired in 2016. While judges should not be punished for making a good-faith legal decision, using terms like “illegals” seems to be a clear violation of professionalism, he said.
“There are complaints that were made because someone is not happy that they lost a case, and those claims need to be taken with a grain of salt,” Schmidt said. “But at the point where judges are using racially charged terms or demeaning people, then that seems to me that it goes beyond what they should be allowed to do.”
. . . .
The Cleveland Immigration Court, much like the rest of the country, saw dramatic personnel changes during Donald Trump’s presidency.
The court used to have only three judges, all of whom have since left their posts. The Trump administration filled the openings and expanded the size of the bench, appointing 10 judges who currently make up the court. Most of them are former government attorneys, and five used to prosecute immigration cases on behalf of the Department of Homeland Security.
The lack of a transparent complaint process is especially concerning given an influx of new judges, who tend to come from enforcement backgrounds and lack experience on the bench, [Attorney Julie] Nemecek said.
“I think about the hundreds of thousands of immigrants across the country who have been wronged by the misconducts of Trump-appointed judges,” she said. “There are still good judges out there. But we have to address these bad judges.”
. . . .
Yilun Cheng is a Report for America corps member and covers immigration issues for the Dispatch. Your donation to match our RFA grant helps keep her writing stories like this one. Please consider making a tax-deductible donation at https://bit.ly/3fNsGaZ.
ycheng@dispatch.com
@ChengYilun
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Read Yulin’s full article at the link.
First, congrats to Yulin Cheng! Last time I published her work, she was an aspiring student journalist.
Now, she’s a Report for America member carrying out her dream and commitment to report truth and hold immigration officials, regardless of party affiliation, accountable for their mockery of the rule of law and shunning of best practices!
So, why might a private practitioner hesitate to file a complaint against an Immigration Judge in Garland’s system still “packed” with a majority of judges hand-selected by White Nationalist nativists Sessions and Barr?
The complaint would go not to an independent, objective panel containing public representation. No, it would be treated as a “supervisory matter” in an agency (not a real “court”) where the ranks of supervisors are still stacked with Barr & Sessions appointees that Garland hasn’t replaced.
Stunningly, the “top judge” in this bizarre, abusive, and dysfunctional system is Chief Immigration Judge Tracy Short — a hard line DHS prosecutor with no prior judicial experience elevated by Barr because of his commitment to the Stephen Miller White Nationalist, anti-asylum, anti-attorney agenda! Remarkably, Garland hasn’t replaced Short with a competent, expert, due-process-oriented “real judge,” notwithstanding unanimous urging from immigration experts that he do so!
Pursue as an alternative a legal appeal to Garland’s BIA? Well, amazingly, that body also remains “packed” with 23 of 24 appellate judges who are holdovers from the Trump Administration. Several of these judges were themselves members of the “90% asylum deniers club” and some were renowned for their disrespect for immigrants (particularly asylum seekers) and their lawyers while on the trial bench.
Look for some binding BIA precedents on improper IJ conduct? Won’t find those either, save for a mild, pre-Trump rebuke of an Atlanta IJ (without identifying the judge) for abusing a juvenile in court.
Then, there’s Garland himself. For heaven’s sake, even Bush crony former AG Alberto Gonzales (“Gonzo I”) finally got so embarrassed by the misbehavior of his IJs that he had to publicly “call off the dogs.”But, from Garland, not a peep or decisive action demanding that his “wholly-owned judges” put due process and fundamental fairness first and treat the individuals coming before them and their lawyers with professionalism, dignity, and respect!
Judge Riley, appointed by Barr in May 2019, without any significant immigration or human rights background, has a TRAC asylum denial rate of 87.7%.
Judge Owens, appointed by Sessions in August 2018, also without any significant immigration or human rights background, has a TRAC asylum denial rate of 94.5%. That’s 58th highest out of 558 Immigration Judges!
The TRAC “national average” for asylum denials by IJs during this period was 67.6%.
So, even in the virulent, officially-sanctioned “anti-asylum era” @ EOIR during the late Obama Administration and the entire Trump Administration, these two judges are “outliers.”
As someone familiar with the Ohio Immigration Bar, there are dozens of much better qualified judicial candidates out there in the private sector. Some of them even applied in the past and were rejected in favor of these judges who, whatever else you might think, no expert would find to be among “best and brightest minds in immigration and human rights,” deserving of elevation to the bench.
All Immigration Judges are “DOJ attorneys,” serving “at the pleasure of the Attorney General” and therefore subject to replacement and/or reassignment at his discretion. Judge Riley was “in probation” until May 20121, so Garland could have terminated her, essentially for any reason, or at least “re-competed” her position under a fair process that would have been open, welcoming to immigration experts in the private sector, and involved private sector input.
Owens and the other Trump-era appointees should also have been required to re-compete for their positions under revised procedures. It’s unlikely either Owens or Riley would have been selected in such a merit-based process.
Of course, Garland has not actively recruited from among better-qualified diverse expert immigration practitioners, established transparent merit-based procedures, or re-competed the disgracefully inadequate selections of his White Nationalist, anti-immigrant predecessors!
Additionally, Garland has failed to address, in any manner whatsoever, the quality control, bad attitude, lack of professionalism, and anti-immigrant bias problems in his dysfunctional Immigration Courts. Poor precedents continue to be issued by his BIA, and sloppy work by his judges at all levels continues to be “outed” by the Article IIIs notwithstanding the substantial (undue) deference given to EOIR decisions by the Article IIIs. Backlog building “Aimless Docket Reshuffling” and “mindless gimmicks” continue to proliferate under Garland’s disconnected leadership.
The disciplinary system remains opaque and highly ineffective. Illegal retaliation by IJs against those filing complaints remains a realistic possibility that actually deters and improperly discourages reporting of misconduct. An ineffective, “rubber-stamp” appellate review process of removal orders by the BIA almost never holds IJs accountable, even for the most egregious legal errors and the grossest misconduct on the bench.
While Circuit Courts point out the deficient performance of EOIR judges on a remarkably frequent basis, one will search in vain for any recent BIA precedent “calling out” inappropriate and biased treatment of respondents and their lawyers in Immigration Court. Likewise, while Jeff Sessions was outspoken in encouraging anti-asylum and anti-lawyer bias among “his judges,” I’m not aware that Garland, in word or deed, has ever insisted that Immigration Judges at all levels give primacy to due process, fundamental fairness, and treat all coming before them with dignity and respect. In other words, Garland has failed to use his “bully pulpit” to demand an end to bullying of the most vulnerable among us in his Immigration Courts.
He also has failed to repudiate the “DHS Enforcement is our partner” statements by Sessions. (Perhaps not surprisingly, since, as noted earlier, Garland employs a DHS prosecutor, Tracy Short, as his “top judge” notwithstanding Short’s glaring unsuitability for the position. And, Garland continues to defend many “Miller Lite” policies in Federal Court.)
Pro-DHS biases, mistreatment of migrants and their attorneys, lack of basic scholarship, and failure of impartial judging continue to run rampant in Garland’s broken system!
Indeed, a full year the SF Chron’sTal Kopan exposed the misconduct by Immigration Judges throughout the nation, the DOJ has taken no known actions despite Deputy AG Lisa Monaco’s “promise to investigate.”
From top to bottom, this broken, unfair, and out of control system needs reform, redirection, integrity, a focus on due process, and decisional excellence. It certainly isn’t coming from Garland and his senior political team at DOJ. So where IS it going to come from?
Chair Lofgren and her Subcommittee need to find out why Garland has failed to address the ongoing disaster in his courts, and what needs to be done to bring due process, fundamental fairness, equal justice, and respect for humanity to the forefront at EOIR, the DOJ, and the rest of our legal system! And, if anyone in the Administration stubbornly claims that the “primary answer” is to randomly throw more judges into this toxic mess, Lofgren should laugh in their face(s)! We need to replace bad judges and reform the existing system into something fair and functional before seeking to expand it, even assuming that expansion is warranted somewhere “down the line.”
As being run by Garland right now, EOIR is an affront to American democracy! That needs to stop!
Sadly, a couple of correct decisions, no matter how welcome, aren’t going to solve the systemic due process deficiencies in Ohio or elsewhere in Garland’s dysfunctional nationwide “Clown Courts.” 🤡
There are some pressing problems in America that Dems and the Biden Administration can’t solve on their own. Garland’s dysfunctional Immigration Courts are NOT one of those!
The Immigration Courts are the biggest most consequential national problem that is totally within the Administration’s power to fix. That Garland has failed to do so should be of existential concern and a cause for unrelenting outrage from all who believe in the future of American democracy!
These findings raise serious questions about whether the Biden administration’s Dedicated Docket is achieving its stated goals or, more seriously, why this program was created in the first place given that it doesn’t appear to actually be benefitting anyone involved. These are my takeaways and not necessarily the views of TRAC as an organization.
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Read Austin’s findings at the link.
The idea was idiotic, the execution amateurish, the human impact catastrophic, and the failure both inevitable and totally predictable! Totally predictable, that is, to anyone who actually understands how broken our Immigration Courts are. That, obviously, doesn’t include Garland or anyone on his senior management team.
Gotta hope that the upcoming “Lofgren hearings” will highlight and document the ridiculous nonsense that’s going on under Garland and crank up the pressure on him to take the human lives at stake here seriously and to do better.
The nation’s immigration court system is a mess. Rep. Lofgren is teeing up an effort to overhaul it
WASHINGTON — South Bay Rep. Zoe Lofgren will convene a congressional hearing on the immigration courts next week, The Chronicle has learned, likely laying the groundwork for the introduction of her bill to overhaul the troubled system.
The hearing may also provide the first critical look by Congress at how the courts, which are under the control of the Department of Justice, have been running under the Biden administration. Though President Biden came into office pledging to turn the page from his predecessor’s hardline immigration stance, advocates say progress has been slow, especially at the Department of Justice.
…
Lofgren, a San Jose Democrat, chairs the immigration subcommittee of the House Judiciary panel and is a longtime leader on immigration policy in Washington. She has been working on legislation that would make the nation’s immigration courts an independent system. In theory that change, which has been called for by the major pro-immigrant and immigration law organizations, would insulate the courts from the political whims of different administrations, and allow them to function more as a justice system.
Committee staff said Lofgren was still working on the bill and offered no timeline for its introduction, but an informational hearing such as the one scheduled for next week typically serves as a precursor to the unveiling of legislation.
Welcome and long, long, long overdue news! But, is it too little, too late?
Subcommittee Chair Zoe Lofgren (D-CA) is one of the few legislators who understands the full extent of the disaster in Garland’s deadly and broken “courts,” the missed opportunities by Garland to initiate meaningful due-process and practical efficiency reforms, and the debilitating effect of the disorder countenanced by Garland at EOIR on our entire legal system and the future of democracy.
Unlike Garland and his ineffectual lieutenants, the Subcommittee will actually hear from expertswho understand the full legal and human effects of Garland’s complacent and ineffectual leadership.
The hundreds of judges at the roughly 70 immigration courts nationwide decide the fate of immigrants seeking to stay in the U.S., many of whom fear for their lives if they are deported. But the system has long faced criticism for its enormous backlog of more than 1.5 million cases, inconsistency across judges and courts, antiquated bureaucracy and labyrinthine structure that’s difficult for immigrants without lawyers to navigate.
In many ways, the above quote from Tal “says it all.” A year after finally being spurred into action by Tal’s reporting on a well-known, long-festering problem, the DOJ has “studied” without actually taking corrective action. A serious lack of transparency remains a chronic problem!
The “culture” at EOIR remains sick. Those in the EOIR system who survived the Trump disaster without giving in to the anti-immigrant corruption had reasonably expected Garland to embrace common-sense, progressive reforms and root out the White Nationalists opponents of due process. Instead they find themselves abandoned and disheartened by his inept and tone-deaf performance.
Incredibly folks like Barr’s hand-selected, anti-immigrant, “Stephen Miller acolyte” Chief Judge Tracy Short remain in their positions while progressive experts have been totally shut out of EOIR leadership by Garland. Only one “practical expert” has been appointed to the BIA, where she remains hopelessly outnumbered and effectively “marginalized” by the overwhelming number of “Trump Holdovers” who “packed” the BIA during the last Administration.
Progressive experts had given the incoming Biden Administration “practical blueprints” and recommended personnel changes for rooting out the deadwood and the many less-than-qualified judges and officials at EOIR and bringing in a team of outstandingly well-qualified due-process-committed “practical experts” to begin fixing the system — with a sense of urgency and priority. Those actions would have included an entirely new BIA with real expert judges who would by now not only have vacated White Nationalist precedents imposed under the Trump DOJ, but actually have issued proper precedents interpreting the immigration laws that would facilitate and enforce due process, and promote uniformity and efficiency, rather than undermining it.
The backlog could have been slashed by decisive actions removing from hopelessly overcrowded and mismanaged dockets, “low-priority” cases and those many that could better have been resolved initially by USCIS. Poorly performing anti-immigrant judges could be brought under control, “Asylum Free Zones” eliminated, training drastically improved, working automated systems implemented, a merit-based hiring system for judges instituted, affirmative recruiting for diverse expert candidates undertaken, representation increased, and a collaborative relationship with the private bar and ICE counsel established.
Instead, Garland has retained Sessions and Barr “holdovers,” embraced “Aimless Docket Reshuffling,” accepted sloppy, unprofessional work product surfacing in the Article IIIs on an almost a daily basis, treated the immigration advocacy community with indifference and disrespect, used “gimmicks” instead of standing up for due process and immigrants’ rights, argued in favor of upholding some of the worst “Miller Lite” policies left behind by Trump’s White Nationalist advisor, and built more unnecessary backlog at a rate that would make “Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr envious.
In other words, Garland has been a disaster for those committed to due process, racial justice,equal treatment under law,and a diverse, welcoming, stable American democracy.
Given Garland’s failures and disinterest in achieving justice for asylum seekers and other migrants, an Independent Article I Immigration Court free from the inept (Democrats) and toxic (GOP) mismanagement of the DOJ is the answer. But, like the rest of the Dem agenda, it’s hard to see a legislative solution anywhere on the horizon. And, those counting on Garland to finally grow a backbone and start reforming the system are likely to be left “throwing punches in the air.” Again!
