🗽🇺🇸R.I.P. DALE SCHWARTZ (1942-2021) — “ORIGINAL DUE PROCESS WARRIOR” — “Dale was a force to be reckoned with.”

Dale Schwartz ESQUIRE — Dale Schwartz, Esquire
1942-2021
PHOTO: avvo.com

https://www.aila.org/about/announcements/in-memoriam/dale-m-schwartz

In Memoriam: Dale M. Schwartz

AILA Doc. No. 21083004 | Dated August 30, 2021

Immigration attorney, champion for the underdog, and dedicated family man Dale Marvin Schwartz, 79, of Sandy Springs, died suddenly and peacefully on August 27. Born to parents Florence and Sanford Schwartz on August 20, 1942 in Columbus, Georgia, Dale graduated from Winder Barrow High School, entered college at age 17, and ultimately received a Bachelors and a Law degree from the University of Georgia. He was married for 56 years to his college sweetheart, Susan Ellis Schwartz, and adored his three daughters, Lori (Allan) Peljovich, Leslye Schwartz, and Laine (Greg) Posel, his nine grandchildren, and his sweet puppy, Ruthie.

Dale was a force to be reckoned with. In his early years, he worked with Alex Cooley to promote rock concerts at Lake Spivey, interned for Senator Richard Russell in Washington, DC, before being recruited by Governor Carl Sanders to Troutman Sanders, where he became a partner and head of the immigration group. In 1995 he opened his own specialty immigration law practice, in which he remained active until his death. He was an adjunct professor of law at Emory for many years.

Dale was a tireless advocate for immigrants, refugees, and those without a voice. He joined John Lewis in the lunch counter sit-ins in Nashville, worked tirelessly to acquire a pardon for Leo Frank, represented the Mariel Cubans in the Atlanta Federal Penitentiary, and started the Secret Santa program for children in the Fulton County DFCS system. Dale lent his heart, voice and leadership skills to a plethora of organizations: He served as President of JF&CS Atlanta, National Board Chair of HIAS, Atlanta Board Chair and National Commissioner at ADL, President of American Immigration Lawyers Association (AILA), co-founder of the American Immigration Council non-profit, and founder of the Young Democrats chapter at UGA.

Dale’s passing leaves a great hole in the hearts of many. He had friends throughout the world because of his numerous hobbies, including photography, HAM radio, and model train collecting. He will most be remembered for his larger than life personality, wit, storytelling, travel adventures, and his not-for-primetime jokes. He was a leader, advocate, mentor, teacher, colleague, friend. But most importantly, he was a son, brother, husband, father, and proud grandfather.

Dale’s full obituary can be found here.

Cite as AILA Doc. No. 21083004.

*****************

I knew Dale well. He sued us often during my “Legacy INS” tenure.

Throughout years of spirited and often emotional litigation, we always remained on cordial terms. Eventually, during my “private practice phase,” we ended up “on the same team” on a number of business immigration issues.

Always generous with his time and advice, Dale loved to “talk immigration law,” and usually had a cite, sometimes to long forgotten, yet right on point, precedents or policy statements.

Dale’s was truly a “life well lived.” And, he inspired many, many members of today’s “New Due Process Army.”🗽⚖️🇺🇸

🇺🇸Due Process Forever!

PWS

08-31-21

🇺🇸⚖️🗽🛡⚔️ ROUND TABLE HERO 🥇JUDGE PHAN QUANG TUE @ WASHPOST ON BEING A REFUGEE IN AMERICA: “But now is when the American people can step in and provide the Afghan refugees a haven whereby they can join ‘we the people’ to ‘form a more perfect Union’ for themselves, their children and their grandchildren.’”

Honorable Phan Quang Tue — Honorable Phan Quan Tue
Retired U.S. Immigration Judge
Member, Round Table of Former Immigration Judges

https://www.washingtonpost.com/opinions/2021/08/24/phan-quang-tue-vietnam-refugees-united-states-afghanistan/

Opinion by Phan Quang Tue

August 24 at 8:16 AM ET

Phan Quang Tue is a retired San Francisco Immigration Court judge.

As I sit down to start writing this piece, the chaotic scenes of group panic at the Kabul airport in Afghanistan continue to unfold. They bring back memories of similar painful images at the Tan Son Nhat airport in Saigon 46 years ago.

Our family of four, including my pregnant wife and our two small children, then 4 and 8 years old, were sitting on the floor of a C-130 about to take off. The aircraft was crowded but strangely quiet. Everyone stared down and avoided eye contact. It was a moment of collective humiliation, to have to leave one’s country under these circumstances. The irony was that we knew we were being saved by the very same foreign government that did not stand behind its commitment to its allies in South Vietnam. We did not know where exactly we were heading, or what to expect in the days and months ahead of us. It was a moment of total uncertainty.

Although 46 years apart, the parallels between the events in Saigon and Kabul are striking. Once again, we see scenes of a capital in agony, with everyone taking to the streets with no clear direction. We remember images of people climbing over the walls of the U.S. Embassy in Saigon; now in Kabul, it’s people climbing over barriers at Hamid Karzai International Airport or chasing military airplanes on the tarmac. But the similarities do not stop there.

The Americans are withdrawing their troops after 20 years in Afghanistan. That is almost the same as the 21 years between the beginning of U.S. political involvement in Vietnam starting with the 1954 Geneva agreements and the Communist takeover of Saigon on April 30, 1975. And there is more. As in Vietnam, the Americans in Afghanistan treated their opponents with more respect than their allies. Though their opponents have easily identified names — the Vietcong and then the Taliban — they minimized their own allies as temporary “regimes” based in Saigon or Afghanistan.

The Vietnamese refugees who arrived in the United States starting in April 1975 were not always made welcome, as the winners of a popular war might have been. Even the veterans — American and Vietnamese alike — were not warmly received everywhere, despite the service they had given to their countries. This country does not like to lose and does not know how to lose. Afghan refugees should not expect to be welcomed with parades like the gold medalists returning from the Tokyo Olympics.

. . . .

The United States did not win the war against the Taliban. But now is when the American people can step in and provide the Afghan refugees a haven whereby they can join “we the people” to “form a more perfect Union” for themselves, their children and their grandchildren.

******************************

Read the rest of the op-ed at the above link.

Thanks, my friend and colleague, for sharing, for all you have done for America, and for your continuing important contributions. It’s an honor to know you and to be working with you on our Round Table!🛡⚔️

🇺🇸Due Process Forever!

PWS

08-290-21

C-SPAN: PROFESSOR GEOFFREY HOFFMAN EXPLAINS FAILED SOUTHERN BORDER POLICIES & LOUSY JUDICIAL DECISIONS ENABLING THEM! — Watch Geoffrey Patiently Rebuff A Slew Of Uninformed Nativist “Call-Ins” — Truth Is, MPP & Illegal Use Of Title 42 Resulted In Over 6,300 Violent Incidents Of “rape, kidnapping, extortion, human trafficking and other assaults against migrants who were deported to Mexico or people who were prevented from seeking asylum at the U.S. border under Title 42!” — More “Inconvenient Truth” For Ill-Informed (& Rude) Nativists: Immigrants Of All Types, Including Undocumented, Are Keeping American Society & Our Economy Afloat & Are Our Hope For The Future!

Here’s the video of Geoffrey (approx. 40 minutes):

https://www.c-span.org/video/?514241-3/washington-journal-geoffrey-hoffman-discusses-biden-immigration-policy&live

Here’s the ugly truth about what two Administrations and some really bad Federal Judges have done to our vulnerable fellow humans seeking legal refuge at our borders:

https://www.nbcnews.com/news/latino/-live-fear-6000-migrants-mexico-violently-attacked-rcna1783

I refer to this as the “harsh reality that the nativist Ted Cruz ‘let ‘em enjoy the beaches in Cancun’ crowd doesn’t get!”

And, here’s the truth about migrants helping our nation thrive and who are a key component of our hopes for the future. Progressives and their allies must double down and act upon these truths to combat the type of ridiculous, dangerous, anti- American nativist lies and myths that were driving some of the misinformed callers, also pushed by the “insurrectionist wing” of the GOP:

https://urldefense.com/v3/__https://www.bushcenter.org/catalyst/state-of-the-american-dream/shi-undocumented-workers-rebuilding-america.html__;!!LkSTlj0I!RcKFXMY1liB3z78Z7LQwEgVggJK2JUSoGlwyO74myivmVNhy6BCynOqMpdYVknPMoicnXQ$

Significantly, this article came from the George W. Bush Institute, hardly a “left wing think tank.”

“Geoffrey’s 40 minutes” shows that there is, indeed, an imminent threat to American democracy, leadership, and future prosperity out there. But, it definitely does not come from migrants! A nation where about 98% of the population came from immigrant lineage can’t afford to turn our backs on today’s immigrants.

🇺🇸Due Process Forever!

PWS

08-28-21

@WASHPOST: CATHERINE RAMPELL SAYS IT WELL! — “Contrary to Trumpers’ claims, keeping our word to Afghan allies in trouble is wholly consistent with a philosophy that puts ‘America First.’ Indeed, it’s central to the entire operation.” — Getting Beyond Bogus Racist Nativism To A Robust, Honest, Expanded Legal Immigration System That Treats Refugees & Asylees Fairly, Humanely, & Generously — As Assets, Not “Threats” — Is Putting America First!

https://www.washingtonpost.com/opinions/2021/08/26/putting-america-first-would-require-keeping-our-word-afghan-allies/

Opinion by Catherine Rampell

August 26 at 5:56 PM ET

Trumpy nativists, posing as fiscal conservatives, want you to question whether the United States can afford to take in Afghan allies and refugees.

The better question is whether we can afford not to.

The Republican Party has cleaved in recent weeks over the issue of Afghan refugees, specifically those who served as military interpreters or otherwise aided U.S. efforts. On the one hand, Republican governors and lawmakers around the country have volunteered to resettle Afghan evacuees in their states. Likewise, a recent CBS News/YouGov poll found that bringing these allies to the United States is phenomenally popular, garnering support from 76 percent of Republican respondents. Influential conservative constituencies are invested in this issue, too, including veterans’ groups and faith leaders.

On the other hand, the Trump strain within the GOP has been fighting such magnanimous impulses with misinformation.

Xenophobic politicians and media personalities have been conspiracy-theorizing about the dangers of resettling Afghan allies here — even though we had previously entrusted these same Afghans with the lives of U.S. troops and granted them security clearances. And even though they go through additional extensive screening before being brought to our shores.

No matter; if you listen to Tucker Carlson and his ilk, you’ll hear that these Afghans are apparently part of a secret plot to replace White Americans, and that untamed Afghan hordes are going to rape your wife and daughter.

Often these demagogues try to disguise their racist objections to refugee resettlement (and immigration more broadly) as economic concerns. Their claim: that however heartbreaking the footage from the Kabul airport, compassion for Afghan refugees is a luxury Americans simply cannot afford.

Refugees are somehow responsible for existing housing shortages, proclaims Carlson. (This is demonstrably false; the reason we have too little affordable housing is primarily because people like Carlson oppose building more and denser housing.) More refugees would sponge up precious taxpayer dollars, according to Rep. Marjorie Taylor Greene (R-Ga.). And in general, refugees — like all immigrants — are a massive drain on the U.S. economy, alleges Stephen Miller.

This is nonsense.

. . . .

***********************
Read Catherine’s complete op-ed at the link!

Thanks, Catherine, for once again standing up to and speaking truth against disgraceful, neo-Nazi, nativist racists like Stephen Miller, Tucker Carlson, and Marjorie Taylor Greene!

As Catherine has observed on this and other occasions, in addition to all of the legal and moral reasons for welcoming them, refugees are good for the U.S. economy. See, e.g., https://immigrationcourtside.com/2018/09/04/forget-trumps-white-nationalist-lies-three-ways-immigrants-have-2-cms-refugees-are-good-for-ame/

By contrast, one might well ask what “value added” folks like Stephen Miller and his buddies, (Miller has largely sponged off of taxpayer funds while looking for ways to inflict misery on others and destroy America) bring to the table. None, that I can see!

Moreover, even beyond the undoubted value of robust refugee admissions, there is good reason to believe that large-scale migration presents our best opportunity for salvation and prosperity, rather than the “bogus threat” posited by Miller & Co.

As Deepak Bhargava and Ruth Milkman recently, and quite cogently, wrote in American Prospect:

. . . .

A “Statue of Liberty Plan” for the 21st century could make the United States the world’s most welcoming country for immigrants. Right now, the foreign-born share of the U.S. population lags behind that of Canada, Australia, and Switzerland. In order to surpass them, the United States would have to admit millions more people each year for a decade or longer. We currently admit immigrants to promote family integration, meet economic needs, respond to humanitarian crises, and increase the diversity of our population from historically underrepresented countries. Under this plan, we could dramatically expand admissions in all four categories and add a fifth category to recognize the claims of climate migrants. As a civic project of national renewal, with millions of people playing a role in welcoming new immigrants, such a policy could reweave frayed social bonds and create a healthier, outward-looking, multiracial national identity.

The politics of immigration, however, lag far behind the moral and economic logic of the case for a pro-immigration policy. The immigrant threat narrative has become so pervasive that many liberals have embraced it, if only because they hope to fend off threats from right-wing nationalists. President Obama not only deprioritized immigration reform in his first term but deported record numbers of immigrants, hoping that such a display of “toughness” might win support for legalization of the undocumented immigrants already here. Hillary Clinton advocated liberal immigration policies in her 2016 presidential campaign but later tacked toward restrictionism. Liberals and leftists across the global North, from Austria to France to the U.K., have offered similar concessions to nativism. But mimicking right-wing appeals is a losing gamble that only serves to legitimize the anti-immigrant agenda and its standard-bearers.

There are promising signs of potential for shifting the debate, however, if progressives lean in. Polling shows that Americans increasingly reject the immigrant threat narrative, largely due to Trump’s shameless cruelty. Last year, for the first time since Gallup began asking the question in 1965, more Americans supported increased levels of immigration than supported reduced levels. A telling barometer of how the sands are shifting is that President Biden’s proposed immigration bill is far to the left of what Obama proposed.

The work of shifting gears toward a more welcoming policy can begin right now by fully welcoming immigrants who already reside in our country. A crucial starting point would be to include a path to citizenship for essential workers, Dreamers, farmworkers, and Temporary Protected Status holders in the American Jobs Plan Congress is considering. This is not only a humane approach, but it also will stimulate economic growth and thus help finance other parts of the plan. A separate campaign by the Biden administration (not requiring congressional action) to simplify the naturalization process for nine million eligible green-card holders would help make the nation’s electorate more reflective of its population.

Getting the politics of immigration right isn’t just important for immigrants. Nativism, built upon the sturdy foundation of racism, remains among the most potent tools in the arsenal of right-wing authoritarians. Any program for economic equity or democracy will be fragile in the absence of a coherent immigration agenda. The antidote to authoritarianism is not to duck, cower, or imitate the nativists, but rather to make the case for opening the door to millions more immigrants.

If slavery and genocide were the country’s original sins, its occasional and often accidental genius has been to renew itself through periodic waves of immigration. Once we expose the immigration threat narrative as the Big Lie that it is, it becomes plain that immigration is not a problem to be solved but an opportunity and necessity to be embraced.

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/why-mass-immigration-is-the-key-to-american-renewal

This, of course, also casts doubt on the wisdom of our current, wasteful and ultimately ineffective, policy of illegally rejecting legal asylum applicants at our Southern Border, rather than attempting in good faith to fit as many as qualify under our current system, as properly and honestly administered (something that hasn’t happened in the past). Additionally wise leaders would be looking for ways to expand our legal immigration system to admit, temporarily or permanently, those whose presence would be mutually beneficial, even if they aren’t “refugees” within existing legal definitions. In this respect, the proposal to modernize our laws to admit climate migrants is compelling.

Remember, as stated above:

Getting the politics of immigration right isn’t just important for immigrants. Nativism, built upon the sturdy foundation of racism, remains among the most potent tools in the arsenal of right-wing authoritarians. Any program for economic equity or democracy will be fragile in the absence of a coherent immigration agenda. The antidote to authoritarianism is not to duck, cower, or imitate the nativists, but rather to make the case for opening the door to millions more immigrants.

NDPA members, keep listening to Catherine and the other voices of progressive wisdom, humanity, practicality, and tolerance. The key to the future is insuring that the “Stephen Millers of the world” never again get a chance to implement their vile, racist propaganda in the guise of “government policy.”

Happily, many Northern Virginians have listened to our “better angels.” Humanitarian aid and resettlement opportunities for Afghan refugees are pouring in, as shown by this report from our good friend Julie Carey @ NBC 4 news:

https://www.nbcwashington.com/news/local/northern-virginia-residents-offer-donations-shelter-to-afghan-refugees/2785567/

Julie Carey
NOVA Bureau Chief, NBC4 Washington
PHOTO: Twitter

The local couple interviewed by Julie emphasized the impressive “human dignity” of the Afghan refugees! (I also observed this during many years of hearing asylum cases in person at the Arlington Immigration Court.) Compare that with the lack thereof (not to mention absence of empathy and kindness) shown by the nativist naysayers!

🇺🇸Due Process Forever!

PWS

08-27-21

⚖️🤮👨🏻‍⚖️☠️ SUPREMELY BAD! — There’s a “problem with late-night emergency orders written as haikus on Post-it notes stuck to the front doors of the Supreme Court . . . !” — The return of “Dred Scottification” & covering for naked White Nationalist policies by our highest Court throws the entire U.S. justice system into chaos!

Grim Reaper — A robed GOP Justice, carrying a copy of Dred Scott and the tool of right-wing extremism, heads for secret meeting to take action against brown-skinned refugees!
Image: Hernan Fednan, Creative Commons License

Dahlia Lithwick
Supreme Court Reporter
Slate
Wikimedia Commons — Public Domain

https://apple.news/ACG8I3-YvTh2RWP68SwTi2A

The Supreme Court Has Let a Lone Trump Judge Take Over Biden’s Foreign Policy

The six conservative justices blessed a rogue decision reviving Trump’s odious attack on refugees.

by Dahlia Lithwick and Mark Joseph Stern

AUGUST 25 2021 8:47 PM

On Tuesday night, the Supreme Court issued one of the most radical orders in recent memory—and it did it in three sentences, unsigned. By a 6–3 vote, the conservative justices attacked the president’s authority to conduct foreign policy (a principle it had vehemently preserved throughout the Trump presidency) by compelling the Biden administration to revive Donald Trump’s “Remain in Mexico” policy, which required all asylum-seekers who arrive at the Southern border—including many fleeing violence in Central America—to wait for their U.S. immigration hearings in Mexico. This 2019 policy, the product of extensive negotiations between the Trump administration and the Mexican government, has been suspended for about 17 months. On Aug. 13, however, a single federal judge issued a nationwide injunction ordering the government to reinstate the long-dormant program immediately. Late Tuesday, the Supreme Court blessed this unprecedented hostile takeover of the executive’s immigration policies without bothering to explain how or why.

The implications of Tuesday’s decision are profoundly disturbing. . . .

Perhaps the most perverse aspect of the litigation over “Remain in Mexico”—also known as the Migrant Protection Protocols, or MPP—is that the policy itself is illegal. The Immigration and Nationality Act does allow the government to return a narrow class of migrants to “contiguous territory” while they await hearings. But, as a federal appeals court explained in 2020, the law does not allow the government to send the vast majority of asylum-seekers back to Mexico to await hearings. Doing so violates the United States’ treaty obligations as implemented in the INA, which bar the government from sending refugees back to countries where they fear persecution.

. . . .

As we have suggested in the recent past, the problem with late-night emergency orders written as haikus on Post-it notes stuck to the front doors of the Supreme Court isn’t just that the parties must scramble, without guidance, to discern what it is the court wants them to do. In this case, perhaps tens of thousands of desperate asylum-seekers and their families have absolutely no clue as to what the law is now and why. We have no idea what even constitutes an emergency, or which parties have standing, or what the legal reasoning might be.

Not very long ago, the high court used its shadow docket to spank what it deemed runaway district court judges arrogating power to set immigration policy in violation of Trump’s orders. Now, the same shadow docket is being used to hand federal immigration powers to runaway district court judges, with no rule or principle set forth beyond the fact that Biden should just lose, because they say so.

*****************

Under Roberts, the Supremes are looking more and more like the deadly EOIR Star Chambers/Clown Courts!☠️⚰️🤡 Shamefully, the “Roberts Six” have “revived” the “essence” of perhaps the worst Supremes’ decision in U.S. history, Dred Scott, and gotten away with applying it to people of color in the 21st Century!

They have elevated utter BS and fabricated “injuries” manufactured in bad faith by vile right wing GOP State AGs over the human rights, lives, and human dignity of refugees seeking asylum! In particular, they have targeted bown-skinned women, children, and families legally seeking refuge! This is progress? Seems like the definition of “judicial cowardice” to me!

What kind of “crimes against humanity” are the “GOP 6” complicit in? Try refugees “kidnapped, raped and even killed as a direct result of this policy. They came to our doorstep with a belief in America — and our government sent them into danger.” https://www.latimes.com/politics/story/2021-08-24/supreme-court-biden-ending-trumps-remain-in-mexico-policy?utm_id=36127&sfmc_id=2413253

Meanwhile Garland inexcusably has failed to reform his Immigration Courts by replacing unqualified Immigration Judges and BIA Appellate Judges selected by his predecessors under highly questionable procedures with well-qualified progressive judges who are experts in due process and human rights.

Building a progressive Immigration Judiciary at EOIR is absolutely necessary to developing the legal skills to hold the anti-American far right at bay and eventually creating a better Article III Judiciary that will actually stand up for due process and equal justice for all persons in America. Something the “Roberts 6” have scandalously and spinelessly failed to do!🤮👎🏽

Better Judges for better America!

🇺🇸Due Process Forever!

PWS

08-26-21

🤮☠️ GARLAND’S EOIR STAR CHAMBERS CONTINUE TO GRIND OUT ANTI-ASYLUM TRAVESTIES! — Read What Passes For “Justice” In Garland’s Deadly Parody Of A Court System!

Garland’s “right hand man” on EOIR matters is eerily familiar, in a Himmleresque way! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

Kangaroos — “Miller’s Mob” is still alive and well at Garland’s EOIR. Legal asylum seekers — not so well, not so alive!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Four Horsemen — BIA Asylum Panel In Action — At Garland’s BIA, a “Miller-trained and inspired” Asylum Panel can, and does, kill dozens of unarmed asylum seekers in a single day to “make quota.” Despite being thoroughly discredited for judicial use, Garland has inexplicably continued due-process-denying, corner-cutting, quality-killing “production quotas” for his assembly line worker/judges in Immigration Courts!
Albrecht Dürer, Public domain, via Wikimedia Commons.

Dan Kowalski reports for LexisNexis Immigration Community:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/25/19-72890.pdf

CA9 on Credibility: Munyuh v. Garland

Munyuh v. Garland

“Ms. Munyuh’s case concerns us. From our reading of the record, the IJ seemed determined to pick every nit she could find. Besides erring procedurally, the IJ discounted probative evidence on flimsy grounds and displayed a dubious understanding of how rape survivors ought to act. Although we give great deference to the IJ as factfinder, substantial-evidence review does not require us to credit the credibility finding of an IJ who cherry-picks from—or misconstrues—the record to reach it. The IJ must consider the “totality of the circumstances, and all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). At the very least, the two legal errors we have identified warrant remand. The IJ erred by failing to give specific, cogent reasons for rejecting Ms. Munyuh’s reasonable, plausible explanations for the discrepancies tied to her declaration that the police truck broke down after only four or five kilometers. And she further erred by discounting the supporting documentation without giving Ms. Munyuh adequate notice and opportunity to provide corroborative evidence. We therefore vacate the removal order and remand the case to the Board for further proceedings consistent with this opinion. PETITION GRANTED; VACATED and REMANDED.”

[Hats off to Ronald D. Richey!]

****************

Congrats to Attorney Ronald D. Richey, who appeared before me many times at the Arlington Immigration Court.

Here’s a quote from the opinion by Senior Circuit Judge Danny Boggs, a Reagan appointee “on loan” from the 6th Cir., that shows the appallingly unprofessional performance of the Immigration Judge and the BIA in this “life or death” case:

On this point, the IJ made findings with which no reasonable factfinder could agree. She found Ms. Munyuh’s testimony that “the truck had traveled over two hours” to conflict with her earlier estimate that it had traveled “over an hour.” And she found Ms. Munyuh’s redirect testimony that “the truck [had] traveled approximately four to five hours before breaking down” to be “clearly in conflict with each of [Ms. Munyuh]’s prior estimations.”

But these time estimates are all consistent with each other. Indeed, assuming the truck really had traveled for four to five hours, Ms. Munyuh had no other choice but to give those answers. The IJ asked her if the truck had traveled more or less than an hour, to which Ms. Munyuh said more than an hour. Then the IJ asked whether the truck had traveled at least two hours, to which Ms. Munyuh answered in the affirmative.

No reasonable factfinder could find those two statements to conflict with Ms. Munyuh’s later testimony that the truck traveled for four to five hours. The IJ’s contrary finding is therefore unsupported by substantial evidence.

Wow! Is this what constituted “acceptable performance” when Judge Garland was on the D.C. Circuit? And, don’t forget, OIL actually defended this garbage product in May 2021, well after Garland took office and after experts had advised him to “clean house.”

The bad judges at EOIR whose lack of competence and/or bias unfairly condemn asylum seekers to persecution, torture and death, or all three, do NOT have life tenure and should NOT be on the Immigration Bench. Period! It’s not rocket science!

“No reasonable fact finder.” Isn’t that a problem in life or death cases? So-called “judges” who time after time stretch and misinterpret facts, ignore due process, and misapply basic asylum law to unfairly sentence asylum seekers to death! Why isn’t this grounds for removal from the bench? Or at least removing them from all asylum cases!

While Judge Boggs and his colleagues are rightfully “concerned” with EOIR’s performance in this case, Garland doesn’t appear to share those concerns. This is “business as usual” at Garland’s EOIR, just as it was when Stephen Miller was calling the shots! Obviously, Garland isn’t taking the human lives at stake here with even a modicum of seriousness. That’s totally unacceptable! Maybe Judge Boggs needs to pick up pen ✒️ and paper 📜 and express his outrage in writing to his former Circuit Court colleague, attaching an annotated copy of the garbage being turned out by his EOIR Star Chambers!

Star Chamber Justice — Just look the other way, it’s the Garland way! “Justice”
Star Chamber
Style

Also, don’t think that cases like this are an “aberration.” No, they aren’t! The only “aberration” is that this is one of a tiny sliver of injustices that was actually caught and corrected by the Article IIIs. How many unrepresented or under-represented individuals do you think that this judge and this BIA panel “railroad” in a week?

🏴‍☠️⚰️THEATER OF THE ABSURD: Incredibly, Garland & Mayorkas are now proposing to put this “Miller-Lite” EOIR infested with many incompetent, poorly trained, asylum-denying “judges,” with no credible leadership, totally lacking in professionalism and quality control, “in charge” of establishing precedents, insuring, and enforcing due process in their proposed “streamlined” asylum system! In other words, the solution for those who have repeatedly demonstrated an outrageous inability to conduct fair hearings and whose ignorance of asylum law and best practices is often stunning is to put them in charge of doing “paper reviews” of applications denied by Asylum Officers!

https://immigrationcourtside.com/2021/08/18/%F0%9F%97%BDcourtsides-instant-analysis-bidens-proposed-asylum-regs-advocates-beware-%E2%9A%A0%EF%B8%8F%E2%98%B9%EF%B8%8F-despite-a-potentially-workable-framework-adminis/

Good luck with that! Could there be a more insane proposal under current conditions? Making Stephen Miller the new “Asylum Czar” at EOIR? Perhaps, don’t be surprised!

Of course, in the nutsos world of Garland and Mayorkas, their fatally flawed proposal arguably would be a better than the current illegal and immoral use of Miller’s bogus Title 42 scheme to return legal asylum seekers to torture or death WITHOUT ANY PROCESS WHATSOEVER.

It’s simple. A complete “housecleaning” at EOIR, starting with the BIA, new progressive leadership and professional expert training at EOIR and the Asylum Office, new progressive asylum precedents and guidance, and an operating program for universal representation of asylum seekers are ABSOLUTE PREREQUISITES for fair and efficient regulatory reform of the asylum system! In the meantime, allow Asylum Officers to grant asylum to those who pass credible fear, but continue to give full Immigration Court hearings to any who can’t be granted. Get rid of Title 42 and start processing legal asylum seekers in an orderly fashion through ports of entry!

More than seven months into the Administration, Garland and Mayorkas could, and should, have had these needed progressive personnel, leadership, and structural changes in place, producing due process, and most important, actually saving lives! Instead, they have wasted time and squandered goodwill by continuing to run Stephen Miller’s White Nationalist system with Miller’s personnel in place! Simply incredible!

And, the bumbling, highly predictable weakness of the team of DOJ lawyers trying to defend the Administration’s few humanitarian immigration initiatives has become patently obvious. How can you expect lawyers who have spent the last four years misrepresenting asylum seekers as less than human and a threat to society suddenly start setting the record straight and effectively advocating for their human and legal rights? Obviously, they can’t! While EOIR is clearly the most glaringly dysfunctional part of DOJ, it’s obviously not the only problem and the only place Team Garland needed to (but didn’t) “clean house.”

I “get” that this isn’t Judge Bell’s, Ben Civiletti’s, or Janet Reno’s DOJ any more! But, remarkably, and tragically for the poor souls and their lawyers involved, Garland doesn’t!

🇺🇸Due Process Forever!

PWS

08-26-21

🗽🇺🇸 SPEAKING UP FOR AFGHAN REFUGEES: Former Government Senior Officials (Including Me) Urge Biden Administration To Invoke Emergency Parole Authority To Save Lives!

Letter to Secretaries Mayorkas and Blinken – August 25, 2021

August 25, 2021

The Honorable Alejandro N. Mayorkas Secretary of Homeland Security
U.S. Department of Homeland Security Washington, DC 20528

The Honorable Antony Blinken Secretary of State
U.S. Department of State Washington, DC 20520

Dear Secretaries Mayorkas and Blinken:

We write as former senior officials with responsibilities for U.S. refugee and immigration programs at both the federal and state levels.

There is no question that the current situation in Afghanistan demands a significant, substantial, and generous U.S. humanitarian response, including through urgent action to evacuate Afghans who have been associated with the United States presence in Afghanistan as well as Afghans at serious and severe risk due to their participation and leadership in activities that were strongly supported and endorsed by the United States. Such activities have included promoting the rights of women and girls, leadership of civil society organizations and initiatives, involvement in journalism, and engagement in the arts, among others.

Under current exigent circumstances, we believe that the administration should use the broadest array of authorities to secure the rescue of Afghans and to provide resettlement in the United States and other countries, as part of an international responsibility-sharing effort.

In this respect, we want in particular to convey our support for use of the parole authority as one critical tool, especially to supplement authorities of the Refugee Act, which—while crucially important—may prove in some respects to be too limited and cumbersome to address fully the urgent and emergency situation.

As you know, 8 U.S.C. 1182(d)(5)(A), vests in the Secretary of DHS the discretionary authority to grant parole for urgent humanitarian reasons or significant public benefit to applicants for admission temporarily on a case-by- case basis. To be sure, in 8 U.S.C. 1182(d)(5)(B), Congress limited the parole authority by restricting its use with respect to those who are refugees, unless the Secretary determines that ‘‘compelling reasons in the public interest with respect to that particular alien require that the alien be paroled . . . rather than be admitted as a refugee.”

The current situation in Afghanistan surely constitutes such a compelling reason, in light of the life-threatening circumstances for would-be applicants and the inability of the U.S. Refugee Admissions program to quickly accommodate the requirements of rescue. Of course, parole is not an end in itself, but would permit further processing through available statutory or administrative mechanisms.

2

Moreover, whatever the respective requirements and benefits of both case-by-case decision- making and the establishment of regulations authorizing a particular program, it has long been acknowledged and accepted that administrations may identify particular groups of individuals who may be eligible for consideration of parole.

Thus, we believe it important to convey our support for your use of this authority, and our willingness to support you in any way possible in the challenging days, weeks, and months ahead.

Sincerely,

T. Alexander Aleinikoff

Former General Counsel and subsequently Executive Associate Commissioner for Programs, Immigration and Naturalization Service (INS) (1994–1997)

Mette Brogden

Former Wisconsin State Refugee Coordinator (2010–2016)

Bo Cooper

Former General Counsel, INS (1999–2003)

Paul Stein

Former Colorado State Refugee Coordinator (2005–2014)

Stephen H. Legomsky

Former Senior Counselor to Secretary of Homeland Security (2015)
Former Chief Counsel, U.S. Citizenship and Immigration Services (USCIS) (2011–2013)

Hiram Ruiz

Former Florida State Refugee Coordinator (2008–2015)

David A. Martin

Former Principal Deputy General Counsel, U.S. Department of Homeland Security (2009–2010) Former General Counsel, INS (1995-1998)

Maria Otero

Former Undersecretary of State for Civilian Security, Democracy, and Human Rights (2009–2013)

Anne C. Richard

Former Assistant Secretary of State for Population, Refugees, and Migration (2012–2017)

Myrta (Chris) Sale

Former Acting Commissioner, INS (1997) Former Deputy Commissioner, INS (1997–1999)

Paul Wickham Schmidt

Former Chair, Board of Immigration Appeals (1995–2001)

Former Acting General Counsel, INS (1979–1981; 1986–1987)

Eric Schwartz

Former Assistant Secretary of State for Population, Refugees, and Migration (2009–2011) Former National Security Council Director for Human Rights, Refugees, and Humanitarian Affairs and subsequently Senior Director for Multilateral and Humanitarian Affairs (1993–2001)

Samuel Witten

Former Principal Deputy Assistant Secretary for the Bureau of Population, Refugees, and Migration, U.S. Department of State (2007–2010)
Former Deputy Legal Adviser, U.S. Department of State (2001–2007)

*****************************

Many thanks to Eric Schwartz and Alex Aleinikoff for spearheading this effort! I’m so proud and honored to be a member of this distinguished group and to speak up for the lives and safety of those in peril.

This, of course, supports the recent LA Times op-ed from our good friend Professor Karen Musalo of the Center for Gender and Refugee Studies at Hastings Law, which I recently republished:

🗽🇺🇸 NDPA SHINING SUPERSTAR 🌟 PROFESSOR KAREN MUSALO @ LA TIMES: It’s Not Rocket Science! 🚀 — The US Can & Must Take Afghan Refugees!

🇺🇸Due Process Forever!

PWS

08-25-21

⚖️🗽👩‍⚖️ U.S. CIRCUIT JUDGE BEVERLY MARTIN 🌟 “OUTS” TRUMPY COLLEAGUES’ INTELLECTUAL DISHONESTY, BIA’S MALICIOUS INCOMPETENCE IN STINGING DISSENT FROM BOGUS ASYLUM DENIAL! — Garland’s Failure To “Pull Plug” On “Miller-Lite BIA” Continues To Cost Innocent Lives,☠️⚰️ Undermine American Justice, 🏴‍☠️ Outrage Human Rights Experts!🤮

https://media.ca11.uscourts.gov/opinions/pub/files/201913715.pdf

Murugan v. U.S. Atty Gen., 08-24-21, published

PANEL: MARTIN (Obama), NEWSOM (Trump), and BRANCH (Trump), Circuit Judges.

OPINION BY: Judge Branch

DISSENT: Judge Martin

KEY QUOTES FROM DISSENT:

The majority opinion gives no more consideration to Mr. Murugan’s claims

and individualized evidence than did the Board of Immigration Appeals and the Immigration Judge. That is to say not much consideration at all.

Mr. Murugan produced evidence that in October 2018, the Sri Lankan government changed drastically when the former president, who had been accused of authorizing war crimes and other human rights abuses against Tamils “blindsided” political observers and “sudden[ly]” returned as prime minister. Because Mr. Murugan is a member of the Tamil ethnic group, his attorney brought up these facts at the hearing before the IJ. But the IJ took no notice of this evidence, finding that Mr. Murugan’s country conditions evidence was outdated because it included materials related to the former president’s rule from 2014 to 2016. Mr. Murugan argued to the BIA that the IJ improperly disregarded these new facts, because they were relevant to what treatment the Tamils could expect from the newly returned prime minister. Even so, the BIA mechanically adopted the IJ’s decision that Mr. Murugan’s evidence was outdated. Mr. Murugan has now tried a third time, pointing out the significance of this evidence in his brief before this Court.

The majority opinion, like the IJ and the BIA, fails to engage with this

evidence. But I see it as substantial and highly probative evidence of a pattern or 19

USCA11 Case: 19-13715 Date Filed: 08/24/2021 Page: 20 of 34

practice of government persecution of Tamils. Because I believe Mr. Murugan met his burden of showing he had a well-founded fear of future persecution based on the Sri Lankan government’s practice of persecuting Tamils, I would grant him relief on this claim.

. . . .

When this Court is tasked with reviewing a decision of the BIA, we must

actually review it, albeit with deference. This majority opinion may condemn Mr. Murugan to extreme persecution in Sri Lanka because it failed to actually examine the evidence of recent political changes in that country. When a dictator with a well-documented history of persecuting an ethnic group returns to power, surely

33

USCA11 Case: 19-13715 Date Filed: 08/24/2021 Page: 34 of 34

our law does not require a member of that group wait to again experience persecution before he can claim asylum. Mr. Murugan has met his burden here. I respectfully dissent.

************

I encourage everyone to read Judge Martin’s complete dissent. By contrast, Judge Elizabeth Branch’s majority opinion is a vapid, disingenuous, piece of right-wing legal sophistry. As my colleague, Hon. “Sir Jeffrey” Chase observed, Branch was “Associate General Counsel for Rules and Legislation, U.S. Department of Homeland Security, in 2004-2005,” during the Bush II Administration.

Judge Martin will retire from the bench on September 30, 2021, thus giving President Biden a chance to appoint her replacement. So, this might be her last immigration opinion.

Judge Martin calls out her intellectually dishonest Trumpy colleagues and accurately characterizes BIA review as no review at all. (Actually, it’s worse than no review, because the BIA sometimes reverses correct IJ asylum grants and rewrites decisions to make it easier for OIL to defend bad denials.)

No matter how poorly they perform their judicial duties (the majority decision in this case certainly stands out as one of many low points in recent American jurisprudence) Trump’s and McConnell’s far righty Article IIIs enjoy lifetime sinecures.

But, EOIR “judges,” particularly after the last two decades of political interference with any semblance of “judicial independence,” enjoy no such exalted lifetime protection. As DOJ keeps pointing out, they are “mere Government attorneys” who can be reassigned to a wide range of attorney positions at the discretion of the Attorney General.

Thus Garland could, and should, remove and reassign poorly qualified judges and replace them with real, well-qualified expert progressive judges who understand asylum law, will fairly apply it, will issue some positive asylum precedents, and will control the “Asylum Deniers Club” operating in Immigration Courts throughout America. The dysfunction, institutionalized unfairness, and “worst practices,” are particularly acute after four years of poor judicial selections, a BIA packed with anti-asylum zealots, and defective training by biased, anti-asylum AGs under fatally flawed and discriminatory selection procedures

Judge Martin “gets it.” How come nobody on Team Garland does?

As we can see, from the Supremes to the “retail level” at the Immigration Courts, the consequences of poor right-wing judging fall most heavily on migrants, women, children, and people of color. Progressives could change that around at EOIR. But, Judge Garland doesn’t seem up to the job, as the opportunity for long overdue, systemic, life saving changes at EOIR continues to slip through his fingers!

But, I repeat myself, obviously to no avail.

🇺🇸Due Process Forever!

PWS

08-24-21

🤮👎🏽🏴‍☠️ SUPREMES’ GOP MAJORITY STUFFS BIDEN, TAKES OVER BORDER ENFORCEMENT, REINSTATES IMMORAL, ILLEGAL ASSAULT ON REFUGEES OF COLOR — MPP WILL CONTINUE TO VIOLATE HUMAN RIGHTS, CAUSE REFUGEE SUFFERING, DEATHS, AT BORDER & IN MEXICO!

By Robert Barnes @ WashPost

LToday at 9:28 p.m. EDT

The Supreme Court on Tuesday said the Biden administration must comply with a lower court’s ruling to reinstate President Donald Trump’s policy that required many asylum seekers to wait outside the United States for their cases to be decided.

The administration had asked the court to put on hold a federal judge’s order that the “Remain in Mexico” policy known as Migrant Protection Protocols (MPP) had to be immediately reimplemented. U.S. District Judge Matthew Kacsmaryk ruled earlier this month that the Biden administration did not provide an adequate reason for getting rid of the policy and that its procedures regarding asylum seekers who enter the country were unlawful.

Biden issues new immigration orders, while signaling cautious approach

Over the objections of the three liberal justices, the court’s conservative majority agreed that the administration had not done enough to justify changing the policy.

The administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious,” the court said in a short, unsigned order. In such emergency matters, the court often does not elaborate on its reasoning.

It said Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan would have granted the administration’s request. The three also gave no reason.

The action could be an ominous sign for the new administration. The court is considering a request that it dissolve the pandemic-related evictions moratorium implemented by the Centers for Disease Control and Prevention, about which the court’s most conservative justices have already expressed skepticism.

The court often showed deference to the Trump administration in such emergency matters, including when the MPP was first implemented.

. . . .

*************

Read Robert’s full article at the link.

“Floaters” — “Floaters — How The World’s Richest Country Responds To Asylum Seekers” — Supremes’ GOP majority makes it clear that it considers asylum seekers of color as something less than human, whose rights and lives simply don’t matter! They are expendable, according to elite ivory tower righty jurists who don’t even give asylees lives a thought and condemn them without rationale. Not their kids, not anyone they can relate to.
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

Not too surprising, given the Roberts Court’s fairly consistent disregard for human rights, the rule of law, the Due Process Clause of the Constitution, and ill-concealed contempt for racial justice and people of color! They had already gone “belly up” on MPP after it was properly blocked by lower Federal Courts during the Trump regime.

It’s going to be a long four years for American democracy, human rights, and individuals of color if the Dems can’t get it together, eliminate the filibuster, and enact some legislation while they are still in control of all three branches. But, it’s the Dems, so don’t count on much besides some hand-wringing and feckless rhetoric.

And to be fair, the Biden Administration’s continued lawless use of Title 42 to suspend the rule of law for many at the border compliments both the Trump regime’s xenophobic policies and the Supremes’ dissing of people of color. Dred Scott is still alive and kicking in 21st Century America, even as our nation grows more diverse.

🇺🇸Due Process Forever!

PWS

08-24-21

ADDENDUM:

As recently posted by Dean Kevin Johnson on ImmigrationProf Blog:

I received the following statement on the ruling by e-mail from Kate Melloy Goettel, Legal Director of Litigation at the American Immigration Council:

“Thousands of people have suffered the horrible consequences of the Migrant Protection Protocols. The Supreme Court has now upheld the Texas court’s decision and, instead of keeping MPP a stain in the history books, it will continue to be a present-day disaster.

“Forcing vulnerable families and children to wait in provisional camps in Mexico puts their lives at risk, while also making it nearly impossible for them to access the asylum process. The Biden administration can and must work to terminate the policy again immediately. Rather than turning away people fleeing harm, we should ensure people have a fair day in court.”

”Dred Scottification” at its worst.

Better Judges for a Better America!

DPF!

PWS

08-25-21

☠️⚰️👎🏽BIDEN ADMINISTRATION EMBRACES “NEW AMERICAN GULAG” — SUPREMES LIKELY TO HELP THEM OUT!🤮

https://lawprofessors.typepad.com/immigration/2021/08/supreme-court-to-review-bond-hearings-for-detained-immigrants.html

Dean Kevin Johnson posts on ImmigrationProf Blog:

Monday, August 23, 2021

Supreme Court To Review Bond Hearings For Detained Immigrants

By Immigration Prof

Share

The Supreme Court has decided a number of immigrant detention cases in recent years. Next Term brings another case. Alyssa Aquino for Law360 reports that the Court agreed today to review a Ninth Circuit decision that required bond hearings for immigrants who have been detained for more than six months with final removal orders. A split ruled that the Immigration and Nationality Act requires the federal government to hold bond hearings for detained migrants, and that the government bears the burden of proving that detainees are a flight risk or public safety threat.

The consolidated cases are Garland. v. Gonzalez and Tae D. Johnson v. Guzman Chavez. Amy Howe on SCOTUSBlog offers some background on the cases her.

KJ

**********************

Notice any difference between the Biden-Harris campaign rhetoric and actual performance once elected?

Never know when a “due process free zone” where individuals not charged with crimes can be detained forever without individualized bond determinations will be a handy hammer to have in your toolbox!

And, don’t forget those huge profits being raked in by the private detention industry, so beloved by DHS and politicos who receive contributions and can tout the “job creation” in the Gulag! Also, states and localities who rent out substandard prison space on questionable contracts love the Gulag!

Significantly, none of the lower court decisions the Biden Administration seeks to overturn requires the release of anyone! Nope! All the lower courts have done is to give the “civil prisoners” a right to plead their cases for release and to require the Government to provide an individualized rationale for continued indefinite detention! Sure sounds like simple due process to me!

Maybe, if Garland, Mayorkas, and the Supremes had a chance to spend a few “overnights in the Gulag” they would take the Fifth Amendment’s application to people of color in our nation and pleading for their lives at our borders more seriously!

🇺🇸Due Process Forever! The “New American Gulag,” Never!

PWS

08-24-21

🗽CUT THE RED TAPE, SAVE LIVES!

Thanks

https://www.sandiegouniontribune.com/opinion/commentary/story/2021-08-20/afghan-allies-treated-poorly

From the San Diego Union-Tribune:

Our allies were given a promise, and leaving them to die will be an unforgivable act of cowardice.

BY ODAY YOUSIF JR.

AUG. 20, 2021 4:54 PM PT

Yousif Jr., J.D., is a graduate of California Western School of Law and an American Constitution Society Next Generation Leader. He lives in Rancho San Diego.

Twenty years ago, the American military marched into Afghanistan with the declared intent of hunting down Osama bin Laden and ridding the country of Taliban extremists. Led by government leaders working in bad faith, thousands of civilians and soldiers were led to their deaths for a war now universally considered a failure. However, the most vulnerable population susceptible to death in Afghanistan are those Afghan allies who risked their lives to work for the foreign forces. They served as translators and services workers and any role that required the help of the local population. Now, with the Taliban back in power, they will be the first to face death.

When local Afghans agreed to work for coalition forces, they were made a promise: work for us and we will give you a visa to the U.S. They put their safety on the line working for the military forces but did so in order to give them and their families the chance for a better future outside Afghanistan. They worked anywhere service members went, from battlefields to bases. Often, they were the people who saved the lives of the soldiers they worked for. They were not just local Afghans but critical allies necessary for the ongoing mission in their country. At that point, we had nothing short of a deep-seated moral obligation to make sure they were protected.

. . . .

***********************

Read the complete op-ed at the link.

Amen! It’s not rocket 🚀 science! But, it does require expertise, guts, and a sense of urgency!

🇺🇸DPF!

PWS

08-23-21

☹️PROGRESSIVE ADVOCATES SENT TO BACK OF THE BUS 🚌 AGAIN AS BIDEN HUMAN RIGHTS MISTAKES THEY WARNED AGAINST COST LIVES, PROMOTE CHAOS, DIMINISH AMERICA’S REPUTATION!☠️⚰️

https://www.huffpost.com/entry/refugee-visas-afghanistan-withdrawal_n_61202499e4b029c152b4ff01

Kevin Robillard and Rowaida Abdelaziz report for HuffPost:

. . . .

There are currently more than 17,000 Afghan nationals — as well as an estimated 53,000 of their family members — awaiting visa approval through the Special Immigrant Visas (SIV) program. The U.S. brought over approximately 2,300 Afghans as part of the program from January to July, and another 2,000 over the last week.

The White House says it has cut the time necessary to approve SIV visas in half, and has issued more than 5,500 between April and July. But advocates say it needs to move faster.

“They seem to be afraid. They seem to be operating out of fear that being a bit bolder on issues with refugees, asylees and migrants will somehow cost them politically,” said former Housing Secretary Julian Castro, who made improving the country’s refugee system a central part of his 2020 presidential campaign. “This is an area where there’s growing disappointment and impatience ― and the stirrings of real anger ― towards the administration.”

. . . .

*******************

Read the full article at the link.

Julian Castro should have been given a major role by the Biden Administration on cleaning house and straightening out the human rights disaster and dysfunction left behind by Trump and Miller. But, at this point, would he really want the job?

🇺🇸DPF!

PWS

08-23-21

☠️ 9TH CIR. PELTS BIA WITH MORE ROTTEN TOMATOES 🍅! — Attempt To Deport Refugee Woman Entitled To Asylum, Withholding & CAT Thwarted! — BIA Wrongly Conflates Registered Nurse With Taxi Driver In Insane Misogynistic Bid To Return Mexicana Refugee To Death!⚰️👎🏽

Woman Tortured — “Taxi to Falls Church, anyone?”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

Plancarte Sauceda v. Garland, 9th Cir., 08-20-21, (Panel = Fletcher, Watford, Collins; Opinion = Fletcher)

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/20/19-73312.pdf

Court staff summary:

. . . .

Citing Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), the Board concluded that “female nurses” were not a cognizable “particular social group” because being a nurse, like being a taxi driver, is not an immutable characteristic. The panel held that the Board erred by simply citing Matter of Acosta, and failing to provide any meaningful analysis about the immutability of “female nurses.” The panel explained that in contrast to Acosta, Plancarte cannot avoid compulsion by the cartel simply by changing jobs, because even if she ceased employment as a nurse, she would still be a nurse, as she has received specialized medical training and has a professional license as a nurse. Moreover, the cartel targeted Plancarte precisely because of her specialized nursing skills, and threatened her and her family with torture and death to force her to use those skills to provide medical treatment to the cartel. Thus, regardless of whether she would continue to work as a licensed nurse, Plancarte lacks “the power to change” the immutable nursing characteristics—her medical knowledge and nursing skills—that make her important to the cartel. The panel therefore granted the petition with respect to Plancarte’s asylum and withholding of removal claims, and remanded for consideration of the other required characteristics of her proposed particular social group of “female nurses.”

Turning to Plancarte’s CAT claim, the panel concluded that the Board’s decision ignored uncontradicted record evidence showing both acquiescence and direct involvement by government officials. The panel held that substantial evidence therefore compelled the conclusion that there was official involvement and acquiescence in the cartel forcing Plancarte to provide medical treatment to cartel members. The panel granted the petition with respect to CAT, and remanded for a determination whether the likelihood of

4 PLANCARTE SAUCEDA V. GARLAND

torture if Plancarte were returned to Mexico is sufficient to warrant CAT relief.

***************

Welcome to the “any reason to deny culture” at Garland’s EOIR!

In addition to the gross errors noted by the panel, I also think that there is a winning argument that being a registered nurse is “fundamental to identity” and therefore not something we should require an individual to change. Put it in today’s COVID context, for Pete’s sake!

Think that being a lawyer isn’t “fundamental” to the identity of a BIA Appellate Judge, an Immigration Judge, or an Article III Judge? Only when these “judges” are thinking of ways to deny protection to others do they engage in such obvious intellectual dishonesty and absurd reasoning!

This is the type of case that should have been a “quick grant” and a precedent for other grants of protection in a functioning justice system! Instead it’s an disaster! One that just happens to have been “outed” by a conscientious Court of Appeals panel — something no person of color can count on! It should be no mystery why this maliciously incompetent system creates huge, growing, out of control backlogs while squandering public resources and destroying lives!

Immigration Court — Failure
BIA — Failure
OIL — Failure
Garland — Failure

And this gang is going to be in charge of setting precedents and protecting due process and human rights of women and other asylum seekers under the Administration’s proposed “streamlined” asylum system? Absurd! It will be a death sentence for far too many refugees!

Congrats to Vallerye Allyn Anderson for saving a life here! Her outstanding performance and understanding of human rights were far superior to that of any “judge” or other DOJ lawyer involved in this case. So, why are the wrong judges still making life or death decisions at EOIR without competent “adult supervision” from qualified judges at the BIA with expertise in asylum law and the guts to apply it correctly, humanely, and generously? See, e.g., Cardoza-Fonseca, Mogharrabi, Kasinga. Just hope that Vallerye and others like her will pursue EOIR judgeships until the disgraceful, deadly, two-decade old “progressive expert lockout from the 21st Century Immigration Judiciary” finally ends and quality, courage, and due process prevail!

🇺🇸Due Process Forever! Failure to “clean house” of Miller Lite White Nationalism, it’s acolytes, go along to get along toady enablers, and to bring common sense, long overdue, obvious, recommended, available progressive human rights reforms and better judges and leaders to EOIR — An ongoing national disgrace!🤮

PWS

08-22-21

⚖️COURTSIDE ANALYSIS: A “QUICKIE LOOK” INSIDE THE NUMBERS OF “DEDICATED DOCKET” — Sometimes The Numbers Don’t Tell You Much, Particularly When They Come From EOIR

By Paul Wickham Schmidt

Courtside Exclusive

August 20, 2021

TRAC IMMIGRATION just released the first statistical profile of the “Dedicated Asylum Docket” created by AG Garland and his subordinates without any coherent public explanation or plan in mind. Here they are:

https://trac.syr.edu/immigration/reports/657/

Stats wonks can check them out, and do their own analyses. As usual, given the haphazard nature and often questionable reliability of Government immigration statistics, it’s impossible to draw definitive conclusions.

But, here are a few things that jump out for me.

No criteria. How do you set up a program that deals with life or death decision-making without having transparent criteria about who gets placed on it and why? Easy, you work for Merrick Garland’s DOJ!

CBP in charge of dockets. Since there are no known criteria, and EOIR seems to have gone belly-up as usual, CBP, a law enforcement branch of DHS, gets to decide who is on this “Dedicated Docket.” CBP, of course, has a questionable record of competence and many issues including allegations of racism in its ranks swirling around it. It also has no known expertise or competence in establishing court dockets. Plus, letting a law enforcement agency with interests often adverse to asylum applicants, whose parent agency is a party to all Immigration Court proceedings, control dockets raises obvious ethical and conflict of interest issues.

Individuals, families, or cases? In its usual confusing manner, EOIR presents its stats in terms of individuals assigned to a docket. But, most (not necessarily all) “family units” are heard as a single “case.” According to TRAC, 4886 “individuals” on the Dedicated Docket (“DD”) represents 1,700 “family units.” That’s approximately “three individuals per family unit.” So, to get the approximate number of actual cases on a particular judge’s DD, we have to divide by three. Therefore, the number 600 assigned to a particular judge on the DD would actually represent 200 cases that require individual merits hearings. Got that? Confusing? Of course!

Who is Judge Francisco R. Pietro, and why? The short answer is that Judge Pietro is a 2019 appointee of GOP “Acting” AG Matt Whitaker, assigned to the NYC Docket and is too recent to have any “asylum grant/deny” statistics in the TRAC System. Remarkably, not to mention inexplicably, Judge Pietro has been assigned approximately 22% of the current Dedicated Docket (“DD”), or 1086 of the 4886 individuals covered by the report. (The rest of the DD is divided, very unequally, among 31 other IJs).

Dividing by 3, per above, the 1086 individuals assigned to Judge P represent about 395 “actual cases.”

Now, EOIR currently demands that it’s “Assembly Line Worker/Judges” complete 700 widgets (aka, cases) per year. It also expects judges assigned to the DD to strive to complete cases in 300 days, that is 10 months.

So, completing 395 asylum cases in 10 months would only leave Judge P another 2 months to complete the other 305 cases necessary for him to make his “quota.” Something has to give here, particularly if Judge P, like the rest of us, wants to take vacations and Federal Holidays off, prepare his cases, and occasionally gets sick. Who knows, he might even need some updated asylum training, although practical aspects like that don’t appear to be part of the equation at today’s “numbers driven” EOIR.

And, let’s not forget that Judge P is a recent appointment. Recent appointees are likely to be less efficient and less inclined to grant asylum than experienced judges, according to some studies.

Therefore, to meet his quotas, keep his bureaucratic “handlers” at DOJ happy, and hang onto his job, Judge P might be left with two choices:

Cut corners big time (a traditional EOIR “built to fail” approach) which means denying lots of due process; or
Reassign part of his docket to other judges, which leads to “Aimless Docket Shuffling” and building backlog.

Theoretically, Judge P could also choose to hear asylum cases with the care required to provide due process and quality decisions, without worrying about targets and quotas. This would be a more plausible option if he were actually an independent judicial official rather than the employee of a political agency.

Also, don’t kid yourself about the “operational consequences” of assigning Judge P and others to a DD! Even assuming that he had zero cases on his docket before being assigned to the DD (highly unlikely), his unavailability for the “general docket” will place extra burdens on his judicial colleagues that will almost certainly promote more Aimless Docket Reshuffling and more backlog. This, of course, will be true for most of the other 31 judges assigned to the DD, to differing degrees, depending on their DD caseload (which ranges from 1 to 712 “individuals” for the “other 31”). “Rearranging the deck chairs on the Titanic” like this actually prevents the crew from getting more passengers off in time to save lives.

Where are the lawyers coming from? The good news is that among the “top 10 DD Judges,” (comprising 79% of the DD), four are in NYC (2d Cir.), two in Newark (3d Cir.), one in San Diego (9th Cir.), one in SF (9th Cir.), one in LA (9th Cir.), and one in Boston (1st Cir.). There are active immigration bars, including pro bono bars, in all these locations. More over, none of these Circuits is notorious for systemically mistreating asylum seekers, and one, the 9th Cir., actually has some favorable case law, although probably less so since Trump’s far-right appointees have “rebalanced” that Circuit to the right.

Yet, it’s not clear from this statistical profile, nor has EOIR revealed, what, if any, agreements might be in place with local pro bono groups in these areas to achieve universal representation within a 300 day case-completion target, without disrupting the “regular” dockets. Nor is it shown how many of those 4886 individuals now on the DD already have lawyers. These are big unanswered questions.

Why Ecuador? Individuals from Ecuador make up over 40% of the DD, even though they comprise less than 10% of the “regular” (if there is such a thing) Immigration Court docket. Go figure!

How were these particular IJs and locations selected for the DD? No clue, which is disconcerting.

Other interesting information.

Here’s a chart that I constructed giving profiles of the “Top 10 DD Judges:”

DD Analysis

Overall, the majority (7) are recent GOP appointees from 2018-20. Of the seven with established asylum grant rates, two have grant rates significantly above the national average (Ling, Sagerman), two have grant rates significantly below the national average (Aina, Pope), and three (Auh, Sturia, Pressman) are relatively proximate to the national grant rate for the TRAC period (33.3). None sit within Circuits known for particular harshness to asylum seekers. None, to my limited knowledge, as far as stats are available, are members of the notorious “Asylum Deniers Club.”

So, we’ll see how it all plays out. Perhaps, over time, advocates will grow to “love and cherish” these DDs. More likely, they will eventually develop the same inconsistencies, inefficiencies, and maddening quirks that have accompanied almost all prior DOJ/EOIR “artificial gimmicks” intended to “speed up the treadmill” without meaningful advance input from experts of the private bar.

But, to me, it looks like the “same old” mismanaged, misguided, failing and flailing EOIR.

Should we expect better from the Biden Administration? You betcha! Will we get it? Probably not, without lots of litigation and hell-raising!

🇺🇸⚖️Due Process Forever!

PWS

08-19-21

🗽🇺🇸 NDPA SHINING SUPERSTAR 🌟 PROFESSOR KAREN MUSALO @ LA TIMES: It’s Not Rocket Science! 🚀 — The US Can & Must Take Afghan Refugees!

https://apple.news/ALA471VAmR0ytqQCJYalbIw

Op-Ed: The U.S. isn’t helpless. It could take in 150,000 Afghan refugees

Americans owe them more than sympathy.

By Karen Musalo

In the past week we have seen searing images and read heartbreaking media accounts of Afghans attempting to leave as the Taliban has rolled into Kabul and asserted control over the country. Americans owe vulnerable Afghans more than sympathy.

Among those at greatest risk are individuals who have worked with the U.S. or its NATO allies, women’s rights activists, human rights defenders, academics, journalists and members of ethnic minorities. Some have reported death threats by the Taliban. Many are desperately trying to destroy any information connecting them to their professional past, but as long as they remain in Afghanistan, they are at risk.

Given the history of U.S. involvement in Afghanistan, Americans have a duty not only to help such vulnerable Afghans but also to lead other nations to do the same.

Direct help from the U.S. is going to require a different approach than the government is taking now. The two routes to date — special immigrant visas and entry through a new priority category created in the refugee admission program — are woefully inadequate. For a start, they do nothing to respond to the immediate and desperate need for protection.

Special immigrant visas, created by Congress in 2009, provide a route to immigrate for Afghans who worked with the U.S. government. As has been widely reported, the application process is extremely onerous and seriously backlogged, conditions aggravated by chronic understaffing during the Trump administration. The International Rescue Committee recently reported that 300,000 Afghan civilians worked with the U.S. in some capacity, but only 16,000 special immigrant visas have been granted since 2014, with 18,000 “in the pipeline.”

Priority 2 of the refugee admission program is broader; it requires an employment relationship with the U.S. but includes work with U.S.-funded projects, nongovernmental organizations or the media. However, this possibility of protection comes with daunting logistical hurdles. Only Afghans outside their country can apply. This means that those at risk must first find a safe harbor nation and a means to support themselves during a processing period that can take months or even years, a situation that Secretary of State Antony J. Blinken has conceded would be “incredibly hard.”

Nothing in the law of the United States limits it to these two narrow options for responding to the urgent protection needs of the Afghan people. The Immigration and Nationality Act provides a mechanism to admit individuals “for urgent humanitarian reasons or significant public benefit,” a process referred to as “humanitarian parole.”

Administrations going back to the 1950s have used the parole authority generously to admit those fleeing persecution — Hungarians after the Soviet invasion of their country, Cubans after Fidel Castro took power, and Vietnamese after the fall of Saigon. Just this week a bipartisan group of senators sent a letter to the Biden administration urging it to evacuate Afghans at highest risk and to use humanitarian parole to quickly and efficiently allow their entry into the United States.

. . . .

************************

Thanks, Karen.

Interesting that after decades of chest thumping, fist pumping, nation building, and nationalist rhetoric about our military prowess in Afghanistan and the power of “muscular militarized democracy,” the “right wing crew of cowards and defeatists” now asserts that we are overwhelmed, and even more absurdly existentially endangered, by the prospect of saving 150,000 Afghans from a life threatening situation we helped engineer! Gimmie a break!

I doubt that Afghan refugees are a greater “threat” to America than the Jan. 6 insurrectionists, the perpetrators of the “big lie,” and their supporters and enablers. Or, how about those refusing to save the lives of others and endangering all of us, including children, by not getting vaccinated or wearing a mask. No wonder these anti-American activists are so anxious to shift the focus to the world’s most vulnerable and defenseless, rather than take responsibility or be held accountable for their own noxious, life and democracy threatening actions! That’s what cowards do!

In addition to the statutory measures discussed by Karen above, the President has authority, after consultation with Congress, to admit refugees directly from a country in crisis. INA 101(a)(42)(B). Consequently, the oft heard statement that refugees must be in a “third country” to apply is simply not accurate.

Where there is a will, there is a way. But, some might well question the “will” of the Biden Administration here.

What is painfully obvious is that there isn’t enough urgency, boldness, or creativity in those tapped by the Administration to manage this crisis and actually save some lives! Maybe Alejandro Mayorkas and Lucas Guttentag need to pick up the phone and call Professor Musalo to get things back on track and save more lives, before it’s too late.

🇺🇸Due Process Forever!

PWS

08-21-21

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Here’s the video of Geoffrey (approx. 40 minutes):

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By Paul Wickham Schmidt

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August 20, 2021

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