🏴‍☠️🤮INJUSTICE @ JUSTICE: MORE PROGRESSIVE NGOS JOIN PROTEST OF CONTINUATION OF “MILLER LITE” REGULATIONS, BAD PRECEDENTS, FAILURE TO REPLACE TRUMP HOLDOVER MANAGERS, JUDGES @ EOIR — 100 Organizations Send Letter To Garland, Monaco, Gupta Requesting Action To Repeal Outrageous, Anti-Due-Process Fee Increases — Stakeholders & Individuals Face Newly Bloated Fees 💸 For The Worst Level Of “Customer Service” 🤡 In American Justice Today!

Still on “our” public payroll, still in charge of immigration and racial justice policy @ the Department of “Justice.” Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

Judge Merrick Garland — Attorney General, Hon. Merrick B. Garland — Exactly what does this guy and the rest of his “team” do to earn their pay over at “Justice?” Not much, from a progressive’s point of view! Can’t even seem to work up the initiative to repeal an outrageous “Stephen Miller Special” fee regulation @ EOIR! Official White House Photo
Public Realm

May 21, 2021

The Honorable Merrick Garland Attorney General of the United States United States Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530-0001

The Honorable Vanita Gupta Associate Attorney General

United States Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530-0001

The Honorable Lisa Monaco

Deputy Attorney General of the United States United States Department of Justice

950 Pennsylvania Avenue NW

Washington, DC 20530-0001

The Honorable Jean King

Acting Director

Executive Office for Immigration Review 5107 Leesburg Pike, 18th Floor

Falls Church, Virginia 22041

Re: Request to Repeal EOIR Rule Imposing Draconian Fee Increases for Critical Immigration Filings

Dear Attorney General Garland, Deputy Attorney General Monaco, Associate Attorney General Gupta, and Acting Director King:

The undersigned are refugee and immigrants’ rights advocacy organizations, legal services providers, law school professors, and providers of other services and supports for unaccompanied children, adults, and families in proceedings before the Immigration Courts or the Board of Immigration Appeals (BIA or Board).1 We write to address the EOIR Fees Rule, finalized by the Department of Justice (DOJ) and Executive Office for Immigration Review (EOIR) in the waning days of the previous administration, which adopts a harsh new fee schedule for applications, motions, and appeals in Immigration Court and BIA proceedings.2

The EOIR Fees Rule is in every way contrary to the principles of our nation’s legal system and to the Biden-Harris Administration’s commitment to improving the operation of the Immigration Courts and protecting the vulnerable individuals who appear before them.3 We understand that this Rule is among the anti-immigrant and anti-refugee rules under review pursuant to the February 2, 2021 Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.4 We urge DOJ and EOIR to take the steps necessary to repeal the EOIR Fees Rule and ensure that any further rulemaking involving fees in EOIR proceedings adheres to the principle that no person be denied due process

1 As you are aware, the Executive Office for Immigration Review, within the Department of Justice, oversees the Immigration Courts and the Board of Immigration Appeals and sets the policies governing these adjudicative bodies.

2 Department of Justice and Executive Office for Immigration Review; Fee Review, 85 Fed. Reg. 82750 (Dec. 18, 2020).

3 The White House has issued several Executive Orders and proposed legislation, the U.S. Citizenship Act of 2021, that convey the Biden Administration’s transformative vision and commitment to building a 21st century immigration system that welcomes immigrants and refugees and keeps families together. See, e.g., The White House, Fact Sheet: President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize our Immigration System (Jan. 20, 2021).

4 Executive Order 14012, 86 Fed. Reg. 8277, 8277-80 (Feb. 5, 2021).

May 21, 2021 Page 2

or access to asylum and other congressionally-authorized protection from deportation based on inability to pay.

Overview: The EOIR Fees Rule Creates Unacceptable Barriers to Justice

The EOIR Fees Rule imposes excessive fees on already vulnerable noncitizens—many of them unrepresented—seeking to defend their liberty, and often their lives, in proceedings before the Immigration Courts and the BIA. The new fees apply to the filing of applications, appeals, and motions that are integral to due process and to access to humanitarian protection and relief from deportation that Congress intended be available to those who are eligible. They include, for example, a nearly 9-fold increase to file an administrative appeal, which is a prerequisite to federal court review.

The new fees erect an insurmountable barrier to justice. The consequences of this impeded access are severe. Long-time immigrants face permanent exile from the country they consider home and permanent separation from loved ones, who oftentimes are U.S. citizens or lawful permanent residents. For those fleeing persecution or torture, a financial barrier to humanitarian protection can mean death. Those who will suffer a wrongful deportation as a result of the EOIR Fees Rule thus face the gravest impact, but the harm for those left behind will also be devastating.5

The gravity of the harms posed by the EOIR Fees Rule has not been felt, but that is only because a federal district court issued a nationwide preliminary injunction stopping nearly all of the new fees from taking effect.6 The threat nevertheless remains until the EOIR Fees Rule is formally vacated by the court or a new rulemaking rights the course.

A fundamental value of our nation’s system of laws is that access to justice and basic liberty not hinge on one’s wealth or lack thereof. Repeal of the EOIR Fees Rule is critical to restoring trust in the nation’s legal immigration system and ensuring that no person is deprived of a full and

5 Numerous studies have documented a range of harms flowing from deportation-forced family separations, including income, housing, and nutritional instability, trauma, and poor health and education outcomes. In view of these and other harms, the District of Columbia and the States of California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington filed an amicus curiae brief, available at https://bit.ly/3whOiEH, in support of litigation challenging the EOIR Fees Rule. As other studies have shown, these harms fall disproportionately to those who are unrepresented in their proceedings and to their families because not having counsel substantially decreases the likelihood of prevailing in removal proceedings. See, e.g., Ingrid Eagly & Steven Shafe, American Immigration Council, Access to Counsel in Immigration Court (Sept. 28, 2016), https://bit.ly/3uKOj3z. As noted here and in comments opposing the EOIR Fees Rule, the new fees will diminish access to counsel.

6 Catholic Legal Immigration Network, Inc. v. Executive Office of Immigration Review, No. 20-CV- 03812, — F. Supp. 3d –, 2021 WL 184359 (D.D.C. Jan. 18, 2021) (Mehta, J.). In enjoining the new fees, the Court focused on the failure of DOJ and EOIR, under the prior administration, to consider the EOIR Fees Rule’s impact on legal services providers and the diminished access to counsel that would result for indigent adults, families, and unaccompanied children in proceedings before EOIR. See id. As discussed further below, the Rule’s promulgation violated the Administrative Procedure Act’s substantive and procedural requirements for rulemaking in a host of additional ways.

May 21, 2021 Page 3

fair day in court based on an inability to pay. Indeed, given the nature of the proceedings at issue here, the attachment of fees itself ought to be questioned in the first instance. And if fees are to be required at all, they should be returned to their previous level or lower, and be coupled with a principled, transparent fee waiver process that ensures there is access to justice, without unduly burdening legal services providers and adjudicators.

The Trump Administration’s EOIR Fees Rule: Unprecedented Increases for Appeals, Motions, Applications for Relief from Removal; a New Mandatory Asylum Application Fee; Violations of the Administrative Procedure Act; and Disregard for Access to Justice

A. The Fees Rule Imposed Radical Multi-Fold Fee Increases for Critical Filings.

The EOIR Fees Rule dramatically increased fees to file appeals, motions to reopen or reconsider, and applications for cancellation of removal or suspension of deportation. The Rule increased nearly 9-fold the fee for appealing removal orders to the BIA (from $110 to $975), raised more than 8-fold the cost of motions to the BIA to reopen or reconsider (from $110 to $895), increased fees more than 5-fold to appeal certain DHS decisions to the BIA (from $110 to $595), and more than tripled the fees to apply for cancellation of removal (from $100 to $305 for cancellation of removal for lawful permanent residents (LPRs) or suspension of deportation and from $100 to $360 for non-LPR cancellation). With the exception of the fee to file a motion to reopen or reconsider (increased over 30%) before an Immigration Judge, every increase substantially exceeded the rate of inflation for the period of time since the fees were last adjusted.7

B. The Fees Rule Added an Unprecedented, Non-Waivable, Defensive Asylum Fee.

The EOIR Fees Rule also for the first time ever imposed a fee to file an asylum application before the Immigration Court. DOJ and EOIR attributed imposition of this mandatory, non- waivable asylum application fee to the Department of Homeland Security’s adoption of such a fee for affirmative asylum applications submitted to U.S. Citizenship and Immigration Services (USCIS). But in fact it was an independent, voluntary decision on the part of DOJ and EOIR to require the fee for the very different context of defensive asylum application filings.

DOJ and EOIR adopted this fee without examining the notable differences in the circumstances of those who can apply affirmatively for asylum and those who must apply defensively in Immigration Court proceedings—including that proceedings before the Asylum Office are non-adversarial and affirmative asylum applicants may have other lawful immigration status at the time of filing whereas defensive asylum applicants frequently are detained, have often only recently arrived in the United States with just the clothes on their backs, and lack work authorization at the time of filing. DOJ and EOIR also made no assessment of the impact that a mandatory fee would be expected to have on access to asylum and related humanitarian protection.

7 See Executive Office for Immigration Review; Fee Review, 85 Fed. Reg. 11866, 11870 (Feb. 28, 2020).

May 21, 2021 Page 4

C. Promulgation of the EOIR Fees Rule Violated the Administrative Procedure Act.

The rulemaking that led to these fee increases violated the letter and spirit of Administrative Procedure Act by preventing meaningful notice and comment by the public. For the entire comment period, DOJ and EOIR withheld the data and much of the methodology for the study on which they based the proposed fee increases. The agency also failed to disclose the data it possessed regarding fee waivers and provided no information addressing the expected impact that fee increases would have on an already problematic fee waiver system. The inadequate record hindered public comment by depriving the public of crucial information relating to the putative basis for the EOIR Fees Rule.

Additionally, the comment period was limited to 30 days, during the onset of the COVID- 19 pandemic-driven lockdown in the United States that forced businesses, courts, government agencies, nonprofit services providers, schools, and daycare providers to close their doors and to move to a new world of remote work. The comment period was not extended despite repeated requests for more time.

The public’s ability to meaningfully comment on the impact of the proposed fee increases was also hobbled because DOJ and EOIR waited until the comment period closed before announcing a series of interrelated rulemakings that would exacerbate the impact of the fee increases.8

Finally, the agency issued the final rule without adequately addressing the concerns raised in the comments that were filed about how the proposed rules would lock low-income individuals out of court because of the inadequacy of EOIR’s fee waiver practices and deprive them of legal representation by devastating the legal services providers on whom they rely.

D. The EOIR Fees Rule Violates the Biden Administration’s Stated Values and Fundamental Principles of Fairness, Access, and Due Process.

The most serious flaws of the EOIR Fees Rule include the following.

1. Requiring noncitizens to bear nearly the full cost of adjudications in adversarial proceedings reverses decades of agency policy and defies legal norms.

EOIR is an appropriated agency, not one that is fee-based. Nonetheless, in a sharp departure from decades-long policy, the EOIR Fees Rule employed an “activity-based” or “cost recovery” model that assigned to respondents in removal proceedings the dollar value of nearly all of the staff time involved in processing, adjudicating, and transmitting Immigration Judge and BIA

8 See, e.g., Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 36,264 (June 15, 2020); Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 Fed. Reg. 52,491 (Aug. 26, 2020); Procedures for Asylum and Withholding of Removal, 85 Fed. Reg. 59,692 (Sept. 23, 2020); see also Centro Legal de la Raza v. EOIR, No. 21-CV-00463-SI, 2021 WL 916804, at *26 (N.D. Cal. Mar. 10, 2021) (noting serious concerns with staggered, piecemeal rulemaking by EOIR, including the EOIR Fees Rule).

May 21, 2021 Page 5

decisions on motions, appeals, and applications for cancellation of removal or suspension of deportation.9

EOIR is an adjudicative body. Nearly all the proceedings before it are adversarial and initiated and prosecuted by the Government. We are aware of no judicial or quasi-judicial adversarial proceedings in which any party—let alone the one whose liberty is at stake—bears nearly the entire cost of the court staff time involved in adjudicating a motion, an appeal, or an application of the type that is presented in immigration court as a defense to removal.10 The decision to employ a cost recovery model and impose such radical fee increases was a marked and unjustified departure from decades of agency commitment to keeping costs “at less than full recovery recognizing longstanding public policy and the interest served by these processes.”11

2. A new mandatory asylum fee defies the Biden Administration’s commitment to undoing the prior administration’s evisceration of U.S. asylum law and policy.

The decision to adopt an asylum application fee, let alone one that would be mandatory and not waivable, was also an historic and unjustifiable departure from decades-long policy and the practice of nearly every other party to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. A host of concerns were raised when this fee was proposed for affirmative asylum applications.12 As explained above, those concerns apply with even greater force to any fee required for defensive asylum applications, let alone one that is mandatory.

9 The only costs not assigned to respondents under the rule were office overhead, fringe benefits, and certain other costs such as interpreters. The Notice of Proposed Rulemaking noted that such costs could not be included because, for example, they would be incurred in any event for other agency work, do not arise in all cases, and/or are infeasible to calculate because they hinge on decisions such as individual employee benefits selections. See 85 Fed. Reg. at 11870, 11872.

10 Contrasting examples are abundantly available. To name just a few, unlike the heavy fees here, the fee to file a petition for writ of habeas corpus in federal court is only $5, and there is no cost for any level of administrative review of the denial of Social Security benefits. See 28 U.S.C. § 1914(a) (establishing $5 filing fee for writ of habeas corpus); Social Security Administration, The Appeals Process, Publication No. 05-10041 (Jan. 2018), https://www.ssa.gov/pubs/EN-05-10041.pdf (describing the various levels of administrative review and listing no cost for review). There also is no fee to file a motion for reconsideration in federal district court. Under the EOIR Fees Rule, the fee for an appeal to the BIA is nearly double the cost of docketing an appeal before a federal circuit court and more than twice as high as the fees for filing a complaint in federal court. See U.S. Courts, Court of Appeals Miscellaneous Fee Schedule (Oct. 1, 2019), https://bit.ly/3fke1oO ($500 docketing fee for appeals before the federal courts of appeal); U.S. District Court for the District of Columbia, Fee Schedule, https://www.dcd.uscourts.gov/fee-schedule (last visited Mar. 24, 2020) ($400 docketing fee for complaint before the federal district court). None of these tribunals seeks to recover anything approximating the full cost of the staff time needed for their adjudications. That is simply not how the justice system works in this country.

11 Powers and Duties of Service Officers; Availability of Service Records, 51 Fed. Reg. 39993, 39993 (Nov. 4, 1986) (Final Rule amending fee schedule of the former INS and EOIR).

12 See, e.g., 85 Fed. Reg. at 46844 (summarizing commenters’ concerns with an affirmative asylum application fee).

May 21, 2021 Page 6

3. The EOIR Fees Rule placed undue reliance on EOIR’s inadequate fee waiver process.

In response to the obvious concerns about the unaffordability of multi-fold increases in fees that many respondents could not afford even at their previous level, DOJ and EOIR pointed to the “possibility” of a fee waiver as protection for indigent respondents.13 The wholesale reliance on this “possibility” was another fundamental flaw of the rulemaking. As evidence in the record made clear, fee waivers were an inadequate safety valve even before promulgation of markedly higher fees.14 Of particular note, there are no clear standards for fee waiver eligibility, and the decision to grant or deny a fee waiver request is entirely discretionary.15 Not surprisingly, fee waiver requests are inconsistently adjudicated, as DOJ and EOIR have themselves admitted.16

4. Fee increases and the increased need for fee waivers harm legal services providers and undermine access to counsel.

Immigration court respondents who have legal representation are substantially more likely to succeed at every stage of their proceedings. But many cannot afford counsel. As comments opposing the EOIR Fees Rule explained, the prior administration’s fee increases ensure that even greater numbers will be forced to go without representation.

In promulgating the Fees Rule, DOJ and EOIR failed to consider the harmful impact of fee increases and a new asylum fee on nonprofit legal services providers and the new fees’ adverse impact on low-income respondents’ access to counsel. Among the expected impacts of the Final Rule was an explosion in the need for fee waivers and the corresponding need for fee waiver requests, adding to the time required for each individual case and diminishing the capacity of legal services providers to provide free or low-cost legal representation to those unable to afford counsel. DOJ and EOIR dismissed these concerns, but as the federal district court that enjoined the bulk of EOIR’s new fees found, “the APA required EOIR to acknowledge those concerns and respond to them in a meaningful way, not blithely dismiss them as ‘outside the limited scope of this rulemaking.’”17

13 See, e.g., 85 Fed. Reg. at 11874.

14 See, e.g., 85 Fed. Reg. at 82758.

15 See 8 C.F.R. §§ 1003.8(a)(3), 1003.24(d); see also DOJ, EOIR POLICY MANUAL pt. II, ch. 3, § 3.4(d)

(“When a fee to file an application or motion is required, the Immigration Judge has the discretion to waive the fee upon a showing that the filing party is unable to pay the fee.”) (Jan. 28, 2020), https://www.justice.gov/eoir/eoir-policy-manual/3/4; id. pt. III, ch. 3, § 3.4(c) (“When an appeal or motion normally requires a filing fee, the Board has the discretion to waive that fee upon a showing of economic hardship or incapacity.”) (last updated Dec. 22, 2020), https://www.justice.gov/eoir/eoir-policy-manual/iii/3/4; 85 Fed. Reg. at 82759 (“fee waivers are discretionary by nature”).

16 See, e.g., 85 Fed. Reg. at 82759 (“differences in adjudicatory outcomes are inherent in any system rooted in adjudicator discretion”); see also id. (“Any calculations attempted by the Department to ‘account for’ the effects of fee waiver adjudications in light of the updated fees would be unreliable because fee waivers are discretionary by nature.”).

17 Catholic Legal Immigration Network, Inc. v. EOIR, No. 20-CV-03812, — F. Supp. 3d –, 2021 WL 184359 (D.D.C. Jan. 18, 2021) (quoting 85 Fed. Reg. at 82775).

May 21, 2021 Page 7

5. The EOIR Fees Rule disregards noncitizens’ inability to pay exorbitant fees and the attendant impact on access.

DOJ and EOIR did not undertake their own examination of the impact that fee increases would have on access to due process and justice before the Immigration Courts and the BIA. The Final Rule then failed to heed the substantial concerns that commenters raised in this regard. Indeed, in the Final Rule’s publication, DOJ and EOIR stated that the agency’s authority to set fees was “not restricted by . . . principles of ‘affordability’ or ‘accessibility.’”18

The Final Rule, embodying this lack of regard for affordability and access, has no place in a system of justice.

Recommendations

The prior administration undermined the strength and integrity of the Immigration Court system in myriad ways. There is much work to be done to ensure that noncitizens in removal proceedings have fair access to justice and the families of those noncitizens and the entire public see the system has integrity. Repealing the EOIR Fees Rule is not sufficient to achieve this end, but it is a necessary step. Toward this end, we make the following recommendations:

1. The EOIR Fees Rule must be repealed. As outlined above, there is reason to question the imposition of fees on Immigration Court respondents at all given the nature of the proceedings and the liberty interests at stake. At a minimum, fees should be restored to their prior level or be lowered.

2. Such repeal should make explicit the principle—long understood until its upending by the EOIR Fees Rule—that no person should be denied access to the appeals, motions, humanitarian protection or other congressionally-authorized protection or relief from removal, based on an inability to pay.

3. The prior administration’s rulemaking exposed deficiencies in EOIR’s approach to fee waivers that should be rectified. Standards should be clear, adjudications should be consistent, and safeguards should be adopted to account for special circumstances to ensure that no person is prevented from filing necessary applications, motions, or appeals because of cost.

4. Exemptions from any required fees should be codified for particularly vulnerable populations, including asylum applicants, children, those who are detained, those lacking representation, and those who are incompetent or otherwise have disabilities that interfere with their ability to access justice.

18 85 Fed. Reg. at 82754.

May 21, 2021 Page 8

5. EOIR must improve its data collection and analysis, ensure transparency, and provide a clear channel for low-income noncitizens to seek a remedy where denial of a fee waiver precludes the filing of any application, motion, or appeal.

In closing, we thank you for the careful review that is underway and your consideration of the foregoing. We look forward to working with the Biden Administration to bring about a more just approach. For further discussion of the EOIR Fees Rule, please contact Avideh Moussavian at moussavian@nilc.org or Jorge Loweree at jloweree@immcouncil.org.

Respectfully submitted,

African Public Affairs Committee

Ahri Center

Alein Haro, University of California, Berkeley*

American Friends Service Committee

American Gateways

American Immigration Council**

American Immigration Lawyers Association

Americans for Immigrant Justice

America’s Voice

Anita Sinha, American University, Washington College of Law*

Anne Schaufele, International Human Rights Law Clinic, American University Washington

College of Law*

Anti-Defamation League (ADL)

Asian Americans Advancing Justice – Atlanta Asian Americans Advancing Justice – Los Angeles Asian Counseling and Referral Service (ACRS) Asian Law Alliance

Asian Pacific Institute on Gender-Based Violence Asian Resources, Inc

ASISTA

Asylum Seeker Advocacy Project (ASAP) AsylumWorks

Bellevue Program for Survivors of Torture

Black and Brown United in Action

BPSOS Center for Community Advancement Bridges Faith Initiative

Campesinos Sin Fronteras

Capital Area Immigrants’ Rights Coalition

CARE Fund

Carol Bohmer, Dartmouth College*

CASA

May 21, 2021 Page 9

Catholic Charities Dallas

Catholic Charities NY, Immigrant and Refugee Services

Catholic Legal Immigration Network, Inc.***

Causa Oregon

Center for Gender & Refugee Studies

Center for Immigrant Advancement (CIMA)

Center for Victims of Torture

Chaldean Community Foundation

Chicanos Por La Causa, Inc.

Church World Service

Cleveland Jobs with Justice

Coalition for Humane Immigrant Rights (CHIRLA)***

Coalition on Human Needs

Colorado Asylum Center

Community Legal Services in East Palo Alto***

Connecticut Shoreline Indivisible

David B Thronson, Michigan State University College of Law*

Democratic Socialists of America – Coachella Valley

Denise Gilman, University of Texas School of Law*

Desert Support for Asylum Seekers

Education and Leadership Foundation

Elissa Steglich, University of Texas School of Law*

Ellen Forman, LICSW, Massachusetts General Hospital, Social Service Department* Employee Rights Center (ERC)

Esperanza Immigrant Rights Project

Evangelical Lutheran Church in America

First Friends of New Jersey and New York

Florence Immigrant and Refugee Rights Project

Free Migration Project

Freedom Network USA

Geoffrey Heeren, University of Idaho College of Law*

Geoffrey Hoffman, University of Houston Law Center*

Greater Portland Family Promise

Haitian Bridge Alliance

HIAS

¡HICA! Hispanic Interest Coalition of Alabama

Human Rights First

Human Rights Initiative of North Texas

Immigrant Action Alliance

Immigrant Defenders Law Center

Immigrant Legal Advocacy Project

Immigrant Legal Defense

Immigrant Legal Resource Center (ILRC) Immigrant Welcome Center

Immigration Advocates Network Immigration Equality

Immigration Hub

Innovation Law Lab

Interfaith Community for Detained Immigrants

International Refugee Assistance Project (IRAP)

International Rescue Committee

Jaya Ramji-Nogales, Temple University*

Jewish Activists for Immigration Justice of Western MA

Jon Bauer, Asylum and Human Rights Clinic at the University of Connecticut School of Law* Jonathan Weinberg, Wayne State University Law School*

Kate Evans, Duke Immigrant Rights Clinic*

Katie Herbert Meyer, Washington University Immigration Law Clinic*

Kids in Need of Defense (KIND)***

Korean Community Center of the East Bay

La Resistencia

Las Américas Immigrant Advocacy Center

Legal Aid Justice Center

Lincoln United Methodist Church

Louisiana Advocates for Immigrants in Detention

Lutheran Social Services of New York

Lynn Marcus, University of Arizona James E. Rogers College of Law*

M Isabel Medina, Loyola University New Orleans College of Law*

Make the Road Nevada

Make the Road New York

Memphis United Methodist Immigrant Relief

Mexican American Opportunity Foundation (MAOF)

Mi Familia Vota Nevada

Michael Kagan, University of Nevada, Las Vegas, Immigration Clinic*

Michigan Immigrant Rights Center

Migrant Center for Human Rights

Minkwon Center

Mississippi Center for Justice

Mixteco/Indígena Community Organizing Project

National Center for Lesbian Rights

National Health Law Program

National Immigrant Justice Center

National Immigration Forum

National Immigration Law Center**

National Immigration Litigation Alliance

May 21, 2021 Page 10

National Immigration Project (NIP-NLG)

National Network for Immigrant & Refugee Rights

NETWORK Lobby for Catholic Social Justice

New Mexico Immigrant Law Center

New Sanctuary Coalition

New York Immigration Coalition

New York Legal Assistance Group (NYLAG)

North Carolina Asian Americans Together

Northern Illinois Justice for Our Neighbors

Northern Manhattan Improvement Corporation

Northwest Immigrant Rights Project

Oasis Legal Services

OCA-Greater Houston

OneAmerica

PARS Equality Center

PG ChangeMakers Coalition

Philip G. Schrag, Georgetown University*

President and CEO, Self-Help for the Elderly

Prisoners’ Legal Services of New York

Project Blueprint

Project Lifeline

Public Counsel

Public Law Center

Pueblo Sin Fronteras/Familia Latina Unida

Puentes de Cristo, Inc.

Quixote Center

RAICES

Rainbow Beginnings

Refugee Action Network of Illinois

RefugeeOne

Rocky Mountain Immigrant Advocacy Network

SAAVI Michigan

Sanctuary DMV

Sarah H. Paoletti, University of Pennsylvania Carey Law School* Sarah R Sherman Stokes, Boston University School of Law* Saratoga Immigration Coalition

Tahirih Justice Center

Takoma Park Mobilization, Equal Justice Committee

Tania Valdez, University of Denver Sturm College of Law*

The Asylum Program of Arizona

The International Institute of Metropolitan Detroit

The Young Center for Immigrant Children’s Rights

May 21, 2021 Page 11

UndocuBlack Network

Unidos Bridging Community

Unitarian Universalist Service Committee

UNITED SIKHS

UnLocal

UpValley Family Centers

Valeria Gomez, University of Connecticut School of Law* VECINA

Volunteers of Legal Service

W.M. Jewish Activists for Immigration Justice Washington Defender Association

Witness at the Border

* The institutional affiliation listed for identification purposes only.

** The National Immigration Law Center and the American Immigration Council are counsel in Cath. Legal Immigr. Network, Inc. v. Exec. Off. for Immigr. Rev., No. 20-CV-03812 (D.D.C.), which seeks to enjoin the EOIR Fee Rule that is the subject of this letter.

*** Catholic Legal Immigration Network, Inc., Coalition for Humane Immigrant Rights (CHIRLA), Community Legal Services in East Palo Alto, and Kids in Need of Defense (KIND) are plaintiffs in Cath. Legal Immigr. Network, Inc. v. Exec. Off. for Immigr. Rev., No. 20-CV- 03812 (D.D.C.), which seeks to enjoin the EOIR Fee Rule that is the subject of this letter.

cc: Susan Rice, Assistant to the President for Domestic Policy

Esther Olavarria, Deputy Director of the Domestic Policy Council for Immigration

Tyler Moran, Special Assistant to the President for Immigration, Domestic Policy Council Margy O’Herron, Senior Counsel, Office of the Deputy Attorney General, Department of Justice

May 21, 2021 Page 12

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

Thanks to my good friend and NDPA Superstar Laura Lynch over at NILC for reporting and forwarding this!

How many “Team Garland” officials at DOJ does it take to change a light bulb?

A: About the same number as the total of EOIR “managers” over the past two decades who have failed to provide any semblance of an operational, nationwide e-filing system (perhaps this would have been useful during COVID?) for the past 20 years and then had the “chutzpah” to astronomically raise filing fees for the public to cover up and divert attention from DOJ/EOIR’s gross incompetence and contempt for “good government.”

Yeah, these problems were there when Garland arrived. But, his failure for going on three months to take the elementary steps necessary to repeal Trump-era travesties makes him complicit! Rescinding a totally unjustified regulation, panned by progressive groups across the board, would be about a four-hour job for an expert who knew what they were doing. Too bad the basic progressive changes necessary to restore sanity @ EOIR appear to be “above the pay grade” of Team Garland.

Pity us poor American taxpayers! We are still footing the bill for Stephen Miller to continue his work for former President Trump (outrageous🤮). https://www.salon.com/2021/05/18/stephen-miller-and-more-than-15-other-trump-aides-still-getting-paid-by-taxpayers-report_partner/

We also are paying “top dollar (for USG) for Garland, Monaco, and Gupta NOT to undo any of the racist, misogynist White Nationalist policies Miller and his cronies instituted at Justice, NOT to remove all of the unqualified Sessions/Barr/Miller “plants” at EOIR, and, get this, to mindlessly CONTINUE TO HIRE less qualified, non-progressive, non-expert, non-diverse Immigration “Judges” under a totally discredited, biased, anti-diversity process developed under Miller, Sessions, and Barr FOR THE SPECIFIC PURPOSE OF PRODUCING A XENOPHOBIC, ANTI-DUE-PROCESS, ANTI-ASYLUM “JUDICIARY @ EOIR” (doubly outrageous 🤮🤮)!

Let’s be clear about this: Every day that Garland & co. continue to dwaddle over long overdue progressive reforms @ EOIR means innocent lives and futures — futures that will be essential to our national success — are flushed down the toilet by EOIR. 🚽 This human damage is both irresponsible and irreparable! Garland’s inaction and lack of expertise and concern about immigration, human rights, and due process is also a DIRECT INSULT to legions of advocates — all members of the NDPA — who have put their professional lives, as well as in many cases their health and safety, “on the line” to save vulnerable lives and preserve American democracy against the Trump/Miller onslaught! And, this is the “thanks” they get from Garland and others who spent the last few years in the “ivory tower” of the Article III appellate judiciary or otherwise above the fray and out of the line of fire! Simply unacceptable!

Not what we expected nor what we deserved from the Biden Administration and “Team Garland” @ (continuing parody of) “Justice!”

“TEAM GARLAND” TO ASYLUM SEEKERS & THEIR LAWYERS: “OF COURSE, YOU SHOULD PAY MORE, MUCH MUCH MORE, FOR THESE TYPES OF “CUSTOMER SERVICES” FROM EOIR! WHERE ELSE IN THE AMERICAN JUSTICE SYSTEM COULD YOU GET THIS LEVEL OF “RED CAPRET” TREATMENT (CUSTOM DESIGNED BY STEPHEN MILLER HIMSELF):

Star Chamber Justice — “Justice”
Star Chamber
Style

Woman Tortured — “She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

PWS

05-22-21

🇺🇸🗽⚖️PROGRESSIVE BLOWBACK GROWS AGAINST GARLAND’S IMMIGRATION BLUNDERS — Failure To “Clean House” At Totally Dysfunctional EOIR, Inaction On Basic Due Process, Human Rights Reforms, Appointment Of Trump-Selected Judges Infuriates Biden Supporters, Angers Ethnic Communities — Those Who Fought Trump Regime In The Trenches For Last 4 Years To Save Lives & Preserve American Democracy Not Amused By Garland’s Disrespectful, Dismissive Approach To Human Rights Imperatives!

Suzanne Monyak
Senior Reporter, Immigration
Law360

CQ NEWS

Groups to AG: Immigration courts need new leaders, hiring review

May 19, 2021 – 4:30 p.m. By Suzanne Monyak, CQ

Dozens of human and civil rights organizations called on Attorney General Merrick Garland on Wednesday to overhaul leadership and review hiring decisions at the U.S. immigration court system, raising concerns of politicized hiring under the prior administration.

In a letter obtained by CQ Roll Call, the 70 organizations accused the Trump administration of transforming the immigration courts, housed within the Justice Department’s Executive Office for Immigration Review, “into a conveyor belt for deportation” and of “systematically hiring personnel to carry out President Trump’s anti-immigrant agenda.”

Under the previous administration, EOIR promoted a number of immigration judges with high asylum denial rates, as well as judges with a history of misconduct complaints.

“Critical and urgent personnel changes are needed to rehabilitate the radically transformed immigration court system that continues to cause irreparable harm and suffering for immigrants and their families,” wrote the organizations, which include the American Immigration Lawyers Association, National Immigration Law Center, Human Rights First and others.

In addition to reviewing personnel decisions made under the Trump administration, the advocates urged Garland to “immediately install new leadership to all key posts” and “diversify the immigration judge corps” by hiring more judges with nonprofit backgrounds.

The organizations faulted the Biden administration for following through with the recent hires of 17 immigration judges, announced earlier this month, most of them with backgrounds as criminal prosecutors and Department of Homeland Security lawyers.

“Despite the Biden-Harris administration’s stated commitment to restoring fairness and balance to the immigration courts, the DOJ continues to rely on Trump-era policies and hiring practices that bias the immigration court system towards prosecution,” the groups wrote.

Garland, confirmed to the helm of the Justice Department in March, inherited a slew of policy changes to the immigration court system implemented under the Trump administration, including policies aimed at speeding up case adjudication and tightening asylum eligibility.

CQ Roll Call reported in 2019 that EOIR leaders revised hiring procedures to make it easier to permanently install certain immigration judges to the Board of Immigration Appeals, the courts’ appellate board that has the power to issue precedential rulings shaping immigration law.

DOJ leadership under the former administration also successfully petitioned to dismantle the immigration judges’ union, which critics say further undermines judges’ discretion over their own caseloads.

A group of senators announced last fall that the Government Accountability Office launched an investigation into the Trump administration’s management of the immigration courts, including its response to the COVID-19 pandemic.

Last month, the Justice Department’s inspector general released a report faulting EOIR for poor communication and a lack of transparency when notifying lawyers and employees about pandemic-related court closures and exposure.

Garland, a former appeals court judge, has yet to rescind most of those changes, fueling calls from lawmakers and advocates to step in.

Last week, Sen. Dianne Feinstein, D-Calif., wrote Garland requesting he rescind two decisions issued by former Attorneys General Jeff Sessions and William Barr that make it harder for domestic abuse survivors, and individuals targeted by gangs or others as a result of their family ties, to qualify for asylum.

“This is out of step with our nation’s reputation as a safe haven for those fleeing persecution,” Feinstein wrote.

In January, top Democrats on the House Oversight and Reform Committee also called on Garland to “take all necessary actions” to protect the immigration judges’ union from decertification.

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

Law360 also provided coverage of this issue. https://www.law360.com/articles/1386538/advocates-seek-to-erase-trump-s-immigration-court-legacy

Also, expect a blast from our Round Table soon about the ongoing due process outrage at EOIR and Garland’s failure to address it!

Next firestorm on the horizon for Garland’s inept, tone-deaf immigration team: Anger and outrage stemming from failure to rescind Barr’s illegal and disgraceful “decertification” of IJ Union — the NAIJ. More “Day 1 Stuff” still awaiting action by Garland as the justice system deteriorates under his feet!

FULL DISCLOSURE: I am a retired member of the NAIJ.

Holy cow! It’s not like lots of progressives didn’t tell the Biden Transition Team, Garland, and anyone else who would listen that radical, progressive Immigration Court reform needed to be a “Day 1” priority at Justice to avoid further disaster.

Moreover, as recently pointed out by Dean Erwin Chemerinsky (Berkeley Law) and Professor Michele Goodwin (UC Irvine Law) virtually every aspect of the Trump regime’s attack on American democracy began with and went through the immigration system.https://lawprofessors.typepad.com/immigration/2021/05/immigration-article-of-the-day-michele-goodwin-erwin-chemerinsky-trump-administration-immigration-ra.html

Compromising due process in Immigration Court and weaponizing EOIR were the keys to the Trump regime’s constitutional deconstruction effort. Consequently, it’s insane for Garland or any other member of the Biden Administration to think that economic equality, voting rights, racial justice, eradication of hate crime, job creation or any other major objective will be attained without new progressive leadership and aggressive progressive due process reforms in Immigration Court. Won’t happen!

You can’t promote social justice while running Stephen Miller’s Star Chambers at EOIR with judges hand-selected by “Billy the Bigot Barr” under flawed procedures.

🇺🇸⚖️🗽Due Process Forever!

PWS

05-20-21

🏴‍☠️☠️HUMAN RIGHTS FIRST SLAMS BIDEN’S ILLEGAL, INHUMANE, INEPT BORDER POLICIES! — Even As Corrupt (Surprise) Rationale For Trump’s Racist Title 42 Policies Revealed, Biden Returns Legal Asylum Seekers To Peril In Mexico With No Due Process, CBP Abuses Continue, & Garland DOJ Mindlessly & Unethically Defends Illegal Actions At Border! — What’s Going On Here?

“Floaters” — “Floaters — How The World’s Richest Country Responds To Asylum Seekers”
EDS NOTE: GRAPHIC CONTENT – (AP Photo/Julia Le Duc) The Biden Administration continues to view the lives of legal asylum seekers, mostly people of color, as expendable and death, rape, torture, child abuse, and other irreparable harm as acceptable “deterrents” to refugees asserting their legal and human rights! That’s basically the Trump/Miller vision! So, what was the 2020 election about?

Dear Paul:

Human Rights First’s work to restore justice at the border took center stage this week. Our experts exposed the political origins of Title 42 and reported on the escalating danger faced by refugees expelled by the Biden administration.

We pushed the administration to more swiftly wind down “Remain in Mexico,” and called out Customs and Border Patrol’s mistreatment of migrants in their custody.

We also announced that Saturday Night Live main cast member Ego Nwodim will host our June 3rd Spring Social, and we have new opportunities to join Human Rights First’s New York City marathon team.

REPORTING ON DANGERS TO REFUGEES EXPELLED TO MEXICO

This week, Human Rights First, RAICES, and the Interfaith Welcome Coalition found that despite the epidemic of violence and kidnappings of migrants and refugees, the Biden administration is using Title 42 to expel adults and families with young children to Nuevo Laredo in Tamaulipas, MX.

Courtesy Reuters

Asylum-seekers in the Remain in Mexico policy living inside a

makeshift camp in the Mexican city of Matamoros.

Legal Fellow Julia Neusner highlighted Border Patrol’s shocking mistreatment of refugee and migrant families expelled to danger by the Biden administration in her newest blog post.

EXPOSING TITLE 42 AS A POLITICAL CALCULATION

Our Freedom of Information Act (FOIA) request today revealed that a Trump administration Centers for Disease Control (CDC) political appointee with no public health expertise “work[ed] on” the Title 42 order’s near “final version” for “days” before the former CDC director signed it.

The findings of our FOIA confirm the political origins of the Title 42 order and further underline that the Biden administration’s continued use of Title 42 to block asylum at the border has no basis in public health.

URGING A SWIFTER WIND DOWN TO “REMAIN IN MEXICO”

Human Rights First led more than 50 organizations and law school clinics yesterday in issuing a letter to the Biden administration urging them to improve their wind down of the Trump administration’s ill-named “Migrant Protection Protocols,” and swiftly bring to safety those stranded under the cruel program.

“The lives and safety of asylum seekers still stranded in Mexico are in the hands of President Biden and his administration,” said Senior Director of Refugee Protection Eleanor Acer.

Courtesy Reuters

Migrants sent back to Mexico under MPP

occupy a makeshift encampment in Matamoros, Mexico.

PUSHING TO EVACUATE OUR ALLIES FROM AFGHANISTAN

As part of our effort to bring Afghan allies in the Special Immigrant Visa (SIV) program to safety, President and CEO Michael Breen penned an op-ed calling on President Biden to evacuate those remaining in the program.

“Leaving allies behind would strike at the very core of who we believe ourselves to be and fly in the face of our most sacred creed. What faith would we have left in ourselves? Who would ever stand with us again?” he wrote.

Take Action

You can join our effort to save our SIVs by contacting your Members of Congress and urging them to take action to protect these allies, many of whom sacrificed so much to work with American forces.

CELEBRATING HUMAN RIGHTS DEFENDERS AT OUR SPRING SOCIAL

We’re excited to announce that Saturday Night Live’s Ego Nwodim will be hosting our Virtual Spring Social LIVE on June 3rd at 6:30pm EST!

Also featuring special guests Ernie Hudson (Ghostbusters, Grace and Frankie), Leeza Gibbons, Hill Harper, and an exclusive musical performance from mxmtoon, with more to come!

Don’t miss this festive, empowering event honoring human rights defenders.

Tickets start at $100.

Register Now

MARATHONING FOR HUMAN RIGHTS

Human Rights First has charity bibs for the 2021 TCS NYC Marathon!

If you want to be a part of the historic 50th marathon and support human rights, please complete our interest form by tomorrow, May 20.

EXPANDING OUR TEAM TO MEET NEW CHALLENGES

Human Rights First empowers Americans to fight for justice in our own communities and around the world. Our staff succeed at bringing real change, and many have gone on to lead at all levels of government.

Now, we’re seeking new talent to join this passionate and effective team.

news as our work for human rights continues. And please stay in touch on social media:

PLEASE MAKE HUMAN RIGHTS A PRIORITY IN YOUR LIFE

The work we do would not be possible without your donations

Unsubscribe

***********

Requiring the restoration of the legal asylum system at the border is a legal and moral imperative that Garland continues to ignore (compare “Gonzo” Sessions’s willingness to use bogus legal opinions to effectively order DHS to institute illegal, racist, xenophobic policies like “family separation” at the border and an illegal end to DACA).

If Garland had acted promptly and competently, a “New EOIR” unburdened by bogus Trump-era anti-asylum precedents, with a new progressive BIA, and with asylum expert judges assigned to border asylum cases could be working through those cases right now without denying anyone’s rights! It’s not “mission impossible” despite all the right wing blather, reinforced to a large extent by the Biden Administration’s remarkable inability to handle a very predictable border scenario in accordance with the law and best practices, compounded by their inept and uninformed “flackies” whose lack of knowledge about the realities of our immigration system, the human impact, and the very future of our justice system and our democracy at stake continue to be mind boggling!

It’s not going to happen until Garland wises up, removes the “Miller leftovers” at EOIR, and puts progressive experts in charge of repairing and reforming the Immigration Courts as well as restoring law and order at the border. Knowledge is power! And the lack of human rights, immigration, asylum, due process, gender, racial equity, and Immigration Court expertise at DOJ is killing the Biden Administration, along with the folks they are illegally and immorally returning to danger and abuse every day!

Also, a greatly upgraded PIO Team that actually understands immigration, human rights, due process, and their links to racial justice policies, the economy, and other Administration priorities and can provide compelling, factually accurate information in support of reestablishing our legal immigration system and due process should also be a “must do” for the Biden Administration! The fascist, nativist right “misinformation and distortion factory” is “loaded for bear” on these issues; it’s once again “Amateur Night at the Bijou” for the Biden immigration and legal reform efforts, particularly at the inept and apparently clueless DOJ! It should not, and must not continue, to be this way!

Is this REALLY the best recruiting method for a crack immigration/human rights PIO Team at EOIR and DOJ? Are holdovers who spewed forth “Soviet-style” propaganda and misinformation defending the indefensible Trump/Miller White Nationalist viurulently anti-due-process, misogynist immigration agenda @ EOIR & DOJ REALLY the best spokespersons for an Administration pledged to institute progressive changes in immigration?
PHOTO: Thomas Hawk
Creative Commons
Amateur Night

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

05-20-21

BIDEN ADMINISTRATION’S AGREEMENT TO ALLOW A FEW MORE LEGAL ASYLUM SEEKERS TO BE PROCESSED FALLS FAR SHORT OF RESTORING THE RULE OF LAW @ OUR SOUTHERN BORDER!

Elliott Spagat
Reporter
Associated Press

https://www.huffpost.com/entry/biden-asylum-seekers-restrictions_n_60a3a360e4b014bd0cb0c284

Elliot Spagut reports for AP:

The Biden administration has agreed to let about 250 people a day through border crossings with Mexico to seek refuge in the United States, part of negotiations to settle a lawsuit over pandemic-related powers that deny migrants a right to apply for asylum, an attorney said Monday.

The government also said it would stop flying migrant families from Texas’ Rio Grande Valley to El Paso, Texas, and San Diego to then be expelled to Mexico under pandemic powers, said Lee Gelernt, an attorney for the American Civil Liberties Union, which has sued in federal court in Washington, D.C. The government has reserved rights to resume flights “if it deems the circumstances warrant.”

The government concessions would dramatically reshape exercise of powers known as Title 42, named for a section of an obscure 1944 law that former President Donald Trump used to let the U.S. Centers for Disease Control and Prevention effectively end asylum at the border while it sought to prevent the coronavirus from spreading.

Biden has exempted unaccompanied children from Title 42 but kept it for single adults and many families. He has come under criticism from progressives for keeping asylum off-limits to many and for encouraging some parents to send children across the border alone. Enforcement-minded critics say exempting children traveling alone led to record numbers crossing and that lifting restrictions more will invite many more people to come.

The government and the ACLU agreed to “a streamlined process for assessing and addressing exemption requests brought by particular vulnerable families and other individuals,” Gelernt said. Once fully up and running, an estimated 250 particularly vulnerable individuals will be allowed in daily to seek humanitarian protection through a consortium of nongovernmental organizations. They must test for COVID-19 before entering the country.

About 2,000 people have already been allowed to enter the country, exempted from the pandemic-related powers to pursue asylum or other forms of protection while in the United States, Gelernt said.

“While these concessions will hopefully save lives, they are not a substitute for eliminating Title 42 and restoring asylum processing fully,” Gelernt said.

The Department of Homeland Security did not immediately respond to a request for comment Monday night.

. . . .

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

The Administration basically has conceded that the bogus Trump-era Title 42 bar had little to do with public health (never much of a concern for the Trump kakistocracy) and everything to do with eliminating the rights of legal asylum seekers, particularly refugee women and those of color. The Biden Administration’s defense of this travesty is pretty disingenuous.

Due Process Forever!

PWS

05-18-21

SEN. DIANNE FEINSTEIN (D-CA) JOINS CALL FOR GARLAND TO QUICKLY REVERSE TRUMP-ERA RACIST, MISOGYNIST, INCORRECT PRECEDENTS AIMED AT PUNISHING WOMEN REFUGEES FROM THE NORTHERN TRIANGLE!

Senator Dianne Feinstein (D-CA)
Official Portrait

https://www.feinstein.senate.gov/public/index.cfm/press-releases?id=D36F6BAC-ADE5-4173-BE85-8CE83CD6FE09

Home News Room Press Releases

Feinstein to Garland: Reverse Trump-Era Asylum Eligibility Rules

May 14 2021

Washington—Senator Dianne Feinstein (D-Calif.) called on Attorney General Merrick Garland to review decisions made by the Trump administration restricting asylum eligibility for victims of domestic and gang violence.

The Refugee Act of 1980 extended asylum protections to foreign nationals who fear to return to their home countries due to past persecution or fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” The Trump administration rejected established precedent by restricting asylum eligibility for victims of gang and domestic violence.

“As a result of these decisions, the United States denies humanitarian relief to asylum-seekers fleeing countries in which 95 percent of sexual violence cases are never investigated and in which gang-related killings and extortion are common practice. This is out of step with our nation’s reputation as a safe haven for those fleeing persecution,” wrote Senator Feinstein.

“I ask that you … consider vacating … those decisions and bring our asylum system back into alignment with the law and the values informing it,” Feinstein added.

Full text of the letter is available here and below:

May 13, 2021

The Honorable Merrick B. Garland

Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530

Dear Attorney General Garland:

I write regarding two decisions issued by Attorneys General Session and Barr during the Trump administration in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), and Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019), as well as other opinions based on these decisions. Enclosed are copies of letters I sent the Attorneys General on these decisions, which in my opinion, ignored precedent by eliminating asylum eligibility for many victims of domestic and gang violence. I am sure you share my belief that all who Congress made eligible for asylum should receive the law’s protections.

As a result of these decisions, the United States denies humanitarian relief to asylum-seekers fleeing countries in which 95 percent of sexual violence cases are never investigated and in which gang-related killings and extortion are common practice. This is out of step with our nation’s reputation as a safe haven for those fleeing persecution.

The Refugee Act of 1980 extends asylum to foreign nationals who are unwilling or unable to return their country of origin due to past persecution or fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). The Trump Administration rejected established precedent when it concluded that victims of domestic or gang violence ignored by their home countries could not claim the protections of asylum.

Accordingly, I ask that you, as part of your review of “precedential decisions … governing the adjudication of asylum claims” directed by President Biden in Executive Order No. 14,010, consider vacating Matter of A-B-, Matter of L-E-A-, and subsequent opinions based on those decisions and bring our asylum system back into alignment with the law and the values informing it. This approach has been used before to provide timely relief in anticipation of formal rulemaking.

Thank you for your prompt attention to this matter.

Sincerely,

Dianne Feinstein

United States Senator

###

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

It’s a very modest, straightforward, well-justified, and long overdue “ask” by Senator Feinstein and others.

It’s simply shocking that Garland continues to dither and “swallow the whistle” on “Basic Day 1 Immigration/Human Rights Stuff” while abused refugee women and their children continue to suffer and die on his watch. Meanwhile, their long suffering pro bono and “low bono” attorneys tear their hair out at Garland’s lack of attention to the horrible human rights, due process disaster in his Immigration “Courts.”

🇺🇸🗽⚖️Due Process Forever!

PWS

05-19-21

🏴‍☠️☠️⚰️🆘NO JUSTICE @ JUSTICE! — OUTRAGE OF PROGRESSIVE EXPERTS CONTINUES TO GROW AS GARLAND FAILS TO VACATE SESSIONS/BARR RACIST, MISOGYNIST, ANTI-IMMIGRANT, UNETHICAL, BIASED PRECEDENTS — “Garland’s Star Chambers” Careen Further Out Of Control As AG Dithers While Lives Of Vulnerable Refugee Women Hang in Balance & Pro Bono Advocates Are Forced To Exhaust Resources Fighting Trump DOJ’s Misdeeds That Biden Has Failed To Fix, Despite Promises — “Unforced Errors,” Lack Of Competent Progressive Leadership Continue To Plague Flawed Immigration Agenda @ Justice, Offend Dem Supporters! — Expert Professors Karen Musalo & Stephen Legomsky Call For Immediate Vacating Of Repulsive Matter of A-B- Abomination Before More Lives Of Women Of Color Are Lost!

Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law

Stephen Legomsky — Professor Stephen H. Legomsky
Emeritus Professor of Law & Former USG Senior Executive
Washington U. Law
PHOTO: Washington U. Law website

https://thehill.com/opinion/immigration/552539-one-quick-asylum-fix-how-garland-can-help-domestic-violence-survivors

Karen & Steve write in The Hill:

With the stroke of a pen, U.S. Attorney General Merrick Garland could restore access to life-saving protection for domestic violence survivors and others caught in the crosshairs of his predecessors’ campaign to exclude refugees. Garland can and should immediately vacate Jeff Sessions’ 2018 decision in the case known as Matter of A-B-, which all but eliminated asylum for people fleeing brutal domestic violence.

On the campaign trail Joe Biden pledged to reverse Matter of A-B- and ensure a fair opportunity for survivors to seek asylum. As president, Biden has issued an executive order directing his Departments of Justice and Homeland Security to review their asylum policies and, by August, determine whether our country protects people fleeing domestic violence in a way that’s consistent with international standards. Following this review, the agencies will issue regulations that bring our treatment of asylum seekers into alignment with our treaty obligations, and with basic principles of humanity and fairness.

But this process will span many months, and when lives are on the line, more immediate action is imperative. Every day Matter of A-B- remains in effect, people are being wrongly denied asylum and delivered into the hands of the very persecutors they’ve fled.

How did we get into this mess? In 2018, then-Attorney General Jeff Sessions personally intervened in the case of Ms. A.B., a Salvadoran woman. He used her case as a vehicle to overrule a landmark Justice Department opinion recognizing domestic violence as a potential basis for asylum. That ruling was the culmination of 15 years of advocacy and extensive consideration by government agencies and refugee law experts.

The impact of Sessions’ decision was immediate and catastrophic. Immigration judges around the country began denying asylum in cases that — pre-Matter of A-B- — should have been relatively straightforward. Though some survivors could still prevail in immigration court, Trump administration attorneys would often appeal these cases to the Justice Department’s appellate tribunal, the Board of Immigration Appeals, and get them overturned.

. . . .

One of the authors — Professor Musalo — represents a victim of Sessions’ attack on survivors: We’ll call her “Cristina” to protect anonymity. Cristina fled Honduras after enduring nearly two decades of domestic violence so severe it once put her in a month-long coma. Cristina was also terrorized by a politically powerful family that murdered multiple siblings and close relatives. When Cristina received a note threatening her with the same fate, she knew she had no choice but to seek asylum.

Cases like Cristina’s have life-or-death stakes, but with Sessions’ ruling intact they are being denied automatically. Though Cristina presented a strong asylum application, in 2020 the Board of Immigration Appeals denied her case, ruling that Matter of A-B- precluded protection. Cristina now faces imminent deportation to Honduras, where she is terrified she’ll be killed.

Merrick Garland can protect survivors like Cristina by simply vacating Sessions’ decision and related asylum rulings from Trump’s Department of Justice. This would at least bring us back to where we were before — not a perfect world, but one where asylum seekers had a fairer shot — while the Justice Department prepares a more humane and legally defensible set of principles to guide future decision-making in asylum cases.

. . . .

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

Read the complete op-ed at the link.

If the current BIA were replaced with competent, expert, progressive, due-process oriented judges tomorrow, as should have happened months ago, this problem could be solved immediately.

I have no doubt that with real asylum experts like Karen as appellate judges at the BIA, Matter of A-B- would rapidly be turned into a blueprint for efficiently granting needed protection to persecuted women. It would also serve as a much needed tool for ending the “asylum free zones” unethically and unprofessionally established by some Immigration Judges throughout the country and starting the long overdue process for removing those unqualified Immigration Judges who are unable or unwilling to fairly grant asylum to qualified applicants and who have created an unacceptable anti-asylum, racist, misogynist culture in some parts of EOIR, in other words the “95% denial club” needs to go! Now!

Disgracefully, that culture was actually encouraged and rewarded by White Nationalist political hacks like Sessions and Barr — folks who never, ever should have had any role in asylum adjudication in America, let alone been permitted to unethically act as “judges” in cases they had “pre-decided” on a mass basis! “Fair and impartial adjudicator,” the core of American constitutional due process, became a sick joke under Sessions and Barr as the Supremes and many Article IIIs disgracefully and spinelessly looked the other way. And, Garland has done nothing to effectively address or reverse this toxic, anti-due-process, racist, misogynist “culture” despite having been told by experts that it was an emergency that could not wait!

Karen and Steve also point out how the BIA disintegrated from a tribunal that was supposed to guarantee fairness and due process for migrants, implement best judicial practices, and protect the most vulnerable from Government overreach into a tool and weapon of DHS enforcement! Yet, 100 days into the Biden Administration, BIA appellate judges who “toadied up” to the Trump regime’s White Nationalist agenda and aided “Dred Scottification” of “the other” by Stephen MIller remain, and experts who should have replaced them remain “on the outside looking in.”

If the Biden Administration and Garland are incapable of putting diverse, qualified progressive experts into a judiciary that they actually control, what are the prospects for progressive transformation of the Article IIIs? That makes this week’s disclosure that Garland mindlessly appointed 17 “Miller Lite” Immigration Judges left over from Barr’s flawed recruitment and scummy tenure instead of properly using these valuable positions to start building a long overdue progressive, expert judiciary at EOIR all the more infuriating and outrageous!

The unmitigated, entirely unnecessary, and potentially solvable due process disaster at EOIR will prevent any meaningful progressive immigraton reforms, whether by legislation or Executive action! It’s also undermines racial justice, threatens the future of American justice, and undermines our democracy every day that it festers away, unaddressed.

Garland must fix this problem starting now! Reassigning the 17 judges who should not have been hired and are still in probation, re-competing their positions under merit criteria that encourage applications from all sources and promote diversity, and cancelling the ridiculous plans for the unneeded, due process denying Richmond Adjudication Center (“Star Chamber”) should be just the start.

“Unit Chief Immigration Judges” are needed like a hole in the head, probably less. They were a bogus idea cooked up by now deposed former Director McHenry to aid in his misguided union busting initiative. What is needed is less bogus judicial supervision (whoever heard of qualified judges needing “supervisors”) and the accompanying time and resource wasting gimmicks, better professional judicial management, and more competent, progressive, independent, expert immigration judges with experience representing asylum applicants and other immigrants in Immigration Courts and judges with NGO and clinical experience who actually know how to manage dockets and solve problems — skills that are in perilously short supply at EOIR.

Garland needs to replace the “gang that can’t shoot straight” @ DOJ and EOIR with some progressive experts and let them start fixing problems and knocking heads of those still stuck in the Sessions/Barr era! Some of us believe that elections should have consequences. Among those is the immediate end of “Miller Lite Justice @ Justice” and the type of promised due process reforms that got Biden and Harris elected in the first place!

“Miller Lite Justice Hour” is over at DOJ — It’s time for Garland to get on the ball and install progressive judges, competent administrators, and long overdue progressive due process reforms at EOIR — America’s worst and most grotesquely dysfunctional “courts,” that don’t operate as courts at all and which daily destroy the lives of refugee women and other migrants!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

05-09-21

🇺🇸⚖️🗽GARCIA HERNANDEZ, MOSKOWITZ, CHEN, & I RIP GARLAND’S CONTINUATION OF BARR’S HORRIBLE IMMIGRATION JUDGE HIRING PRACTICES 🤮👎🏻 — DOJ’s Lame, Disingenuous Defense Of Garland’s Anti-Diversity, Anti-Immigrant, Anti-Due Process, Expertise-Denying Bogus Judicial Hiring Practices @ EOIR Enrages Progressives, Scholars, Experts, Betrays Biden’s Promises, Threatens To Shatter Dem Coalition! — Report By Rebecca Beitsch @ The Hill!

Rebecca Beitsch
Staff Writer
The Hill
PHOTO: pewtrust.org

https://thehill.com/policy/national-security/552373-biden-fills-immigration-court-with-trump-hires

From Rebecca’s article:

. . . .

The first 17 hires to the court system responsible for determining whether migrants get to remain in the country is filled with former prosecutors and counselors for Immigration and Customs Enforcement (ICE) as well as a few picks with little immigration experience.

Almost none have made their career representing migrants in court.

The Thursday announcement from the Department of Justice (DOJ) initially perplexed immigration attorneys, advocates and even some former immigration judges who wondered why the group so closely mirrored the jurists favored by the Trump administration.

. . . .

It’s also a surprising move for a president that has otherwise sought to quickly reverse a number of Trump immigration policies while calling for a more humane response to migration.

“This is a list I would have expected out of Bill Barr or Jeff Sessions, but they’re not the attorney general anymore. Elections are supposed to have consequences,” said Paul Schmidt, now an adjunct professor at Georgetown Law School after 21 years as an immigration judge. That included time serving as the chair of the Board of Immigration Appeals, the highest administrative body dealing with immigration cases.

“No one on that list is among the top 100 asylum authorities in the country, and that’s the kind of people they should be hiring — not prosecutorial re-treads,” he added.

. . . .

DOJ pushed back against criticism that the new judges would contribute to a pattern of rulings that favor government attorneys over immigrants, saying it “takes seriously any claims of unjustified and significant anomalies in adjudicator decision-making and takes steps to evaluate disparities.”

“Note also that the Executive Office for Immigration Review (EOIR) continually evaluates its processes and procedures to ensure that immigration cases are adjudicated fairly, impartially and expeditiously and that its immigration judges uniformly interpret and administer U.S. immigration laws,” the spokesperson said.

But Schmidt said diversifying the attorneys on the bench is what will be needed to have a greater impact.

“You need to get some progressive immigration experts into the system who recognize what good asylum claims are who can establish precedent for granting cases and then move those cases through the system,” he said.

“I haven’t seen much evidence to back up their initial claim they want to be fair and just to asylum seekers. It’s just Stephen Miller Lite.”

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

The DOJ’s response is preposterous, further evidence Garland is the wrong person to bring “justice” back to “Justice!” No, and I mean NO, progressive immigration expert in America would call the DOJ’s judicial hiring practices under the Trump Administration fair and merit-based! These lists and the selection process were tainted by the Trump kakistocracy at DOJ. What kind of Attorney General perpetuates this utter nonsense!

Numerous detailed reports have criticized the Trump hiring plan that Garland mindlessly and insultingly furthered! Garland has access to all of these criticisms, most of which were delivered to the Biden Transition Team in one form or another. No excuses for Garland’s atrocious handling of EOIR to date!

The claim that EOIR takes claims of glaring discrepancies “seriously” is equally ridiculous and intellectually dishonest! Current TRAC Immigration data shows asylum grant rates for currently sitting Immigration Judges varying from more than 90% to 1% with a number of Immigration Judges, including several “rewarded” with appointments to the BIA under Barr, denying 98% or 99% of claims. Duh, you don’t need to be a statistician or have an Ivy League law degree to know that there is a skunk 🦨 in these woods!

These are major, unacceptable discrepancies first highlighted by my colleagues Professor Andy Schoenholtz, Professor Phil Schrag, and Professor and now Associate Dean (Temple Law) Jaya Ramji Nogales in their seminal work “Refugee Roulette” written more than a decade ago at Georgetown Law. The system is actually immeasurably worse now than it was then, as Sessions and Barr filled the Immigration Bench and packed the BIA with unqualified judges notorious for their lack of knowledge of asylum law and their anti-asylum bias. In some cases, they combined those shortcomings with allegations of rudeness and unprofessional behavior lodged by the private bar.

The NY Times figured out exactly what is wrong with the Immigration Courts — that they are not really “courts” at all by any normal measure and are operated by individuals who place immigration enforcement above due process and equal justice. Garland is certainly smart enough to have figured out what the NYT Editorial Writers had no difficulty in documenting and describing!

Neither Biden nor Garland would be in their current jobs without the efforts of progressive immigration litigators and scholars over the past four years and the energy and resources they injected into the Biden-Harris campaign when the chips were down! Progressives can’t allow the Biden Administration and Garland to continue to treat them as “chopped liver” while coddling Stephen Miller, Billy Barr, and, outrageously, even “AG for 5 minutes” “Monty Python” Wilkinson’s clearly unjustified and highly inappropriate judicial picks!

These are NOT bureaucratic jobs. “Conditional offers” aren’t “jobs,” particularly when made in the “excepted service” on the eve of or even after a hotly contested election where immigration and human rights were major issues! Immigration Judge positions are important life or death judicial positions in what is now America’s worst and most broken judiciary. In that context, Garland’s inappropriate judicial selections are totally outrageous and set a tone of continuing disrespect and disregard for some of the Democratic Party’s most loyal supporters, their expertise, and the important communities they represent!

Trial By Ordeal — Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

It’s time for the Biden Administration to pay attention to the progressive immigration/human rights/due process bar! Otherwise, perhaps it’s time for progressives to turn their energies and talents to opposing an Administration that neither represents their views nor values their expertise and tireless efforts in support of American democracy and equal justice for all!

I, for one, did not go to the polls last fall to help more “Billy the Bigot” picks off tainted, exclusionary lists, developed in a culture that actively discouraged progressives and minority attorneys from applying, get jobs as Immigration Judges for which there is no way that they are the best candidates available! And, I’ll bet that neither did other members of the NDPA! Enough is enough! End the EOIR Clown Show!☠️🤡 And, if Garland can’t or won’t do that, then Biden needs a new AG before Garland irrevocably splinters the Democratic base with his gross mishandling of EOIR!

Due Process Forever!

PWS

05-09-21

🇺🇸⚖️🗽NY TIMES EDITORIAL MAKES THE CASE FOR ARTICLE I — “It’s hard to imagine a more glaring conflict of interest than the nation’s top law-enforcement agency running a court system in which it regularly appears as a party.” — Garland’s Abject Failure To Fix EOIR, Bring In Experts Highlighted, As Constitutional Due Process, Ethical, Human Rights, Racial Justice, Gender Equity, Diversity, & Management Farce @ EOIR Continues Under His Disgraceful Lack Of Awareness & Failure Of Courageous, Progressive Leadership! — Progressives Can’t Remain Silent, Must “Raise Hell” 👹With Biden Administration About Garland’s Lousy Performance @ EOIR, As He Continues To Stack Immigration “Judiciary” With “Miller Lite Holdovers” 🤮 To The Exclusion of Progressive Experts Who Helped Put Biden Administration In Office!

EYORE — “Eyore In Distress” — Garland’s failure to set tone of due process, human rights, excellence, independence @ EOIR threatens U.S. Justice System — could led to downfall of American democracy!
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

https://www.nytimes.com/2021/05/08/opinion/sunday/immigration-courts-trump-biden.html?action=click&module=Opinion&pgtype=Homepage

Because of it’s critical importance and it’s “right on” expose of the most glaring problem in American justice today, this timely editorial is quoted in full:

Immigration Courts Aren’t Real Courts. Time to Change That.

May 8, 2021

Image

By The Editorial Board

The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values. It is separate from the newsroom.

President Biden took office with a promise to “restore humanity and American values” to the immigration system. If he’s going to succeed, it will take more than shutting down construction on his predecessor’s border wall. The most formidable obstacle to making the U.S. immigration system more humane and functional is invisible to most Americans: the nation’s broken, overwhelmed immigration court system.

Every day, hundreds of immigration judges slog through thousands of cases, unable to keep up with a crushing backlog that has more than doubled since 2016. Many cases involve complex claims of asylum by those who fear for their safety in their home countries. Most end up in legal limbo, waiting years for even an initial hearing. Some people sit in detention centers for months or longer, despite posing no risk to the public. None have the right to a lawyer, which few could afford anyway.

“The system is failing, there is no doubt about it,” one immigration judge said in 2018. As long as the system is failing, it will be impossible to achieve any broad-based immigration reform — whether proposed by Mr. Biden or anyone else.

The problem with these courts isn’t new, but it became significantly worse under the Trump administration. When he took office in 2017, President Donald Trump inherited a backlog of about 540,000 cases, already a major crisis. The administration could have used numerous means to bring that number down. Instead, Mr. Trump’s team drove it up. By the time he left office in January, the backlog had ballooned to nearly 1.3 million pending cases.

How did that number get so high? Some of the increase was the result of ramped up enforcement of immigration laws, leading to many more arrests and detentions that required court attention. The Trump administration also reopened hundreds of thousands of low-priority cases that had been shelved under President Barack Obama. Finally, Mr. Trump starved the courts of funding and restricted how much control judges had over their own dockets, making the job nearly impossible for those judges who care about providing fair and impartial justice to immigrants.

At the same time, Mr. Trump hired hundreds of new judges, prioritizing ideology over experience, such as by tapping former Immigration and Customs Enforcement prosecutors and others who would help convert the courts into a conveyor belt of deportation. In 2018, then Attorney General Jeff Sessions imposed an annual quota of 700 cases per judge. One judge testified before a House committee last year that Mr. Trump’s system was “a widget factory management model of speed over substance.”

By some measures, the plan worked: In 2020, the immigration courts denied 72 percent of asylum claims, the highest portion ever, and far above the denial rates during the Obama and George W. Bush administrations.

If the goal was to empty the United States of all those asylum seekers, Mr. Trump clearly failed, as evidenced by the huge backlog he left Mr. Biden. But the ease with which he imposed his will on the immigration courts revealed a central structural flaw in the system: They are not actual courts, at least not in the sense that Americans are used to thinking of courts — as neutral arbiters of law, honoring due process and meting out impartial justice. Nor are immigration judges real judges. They are attorneys employed by the Executive Office for Immigration Review, which is housed in the Department of Justice. It’s hard to imagine a more glaring conflict of interest than the nation’s top law-enforcement agency running a court system in which it regularly appears as a party.

The result is that immigration courts and judges operate at the mercy of whoever is sitting in the Oval Office. How much money they get, what cases they focus on — it’s all politics. That didn’t used to be such a problem, because attorneys general rarely got involved in immigration issues. Then Mr. Trump came along and reminded everyone just how much power the head of the executive branch has when it comes to immigration.

The solution is clear: Congress needs to take immigration courts out of the Justice Department and make them independent, similar to other administrative courts that handle bankruptcy, income-tax and veterans’ cases. Immigration judges would then be freed from political influence and be able to run their dockets as they see fit, which could help reduce the backlog and improve the courts’ standing in the public eye. Reform advocates, including the Federal Bar Association, have pushed the idea of a stand-alone immigration court for years without success. The Trump administration made the case for independence that much clearer.

In the meantime, there are shorter-term fixes that could help restore a semblance of impartiality and professionalism to the immigration courts.

First, the system must be properly staffed and funded to deal with its backlog. One way to do that is by hiring more judges, and staff members to support them. Today there are about 550 immigration judges carrying an average of almost 3,000 cases each, which makes it nearly impossible to provide anything like fair and consistent justice. Earlier this week, Attorney General Merrick Garland asked Congress for a 21 percent increase in the court system’s budget. That’s a start, but it doesn’t come close to solving the problem. Even if 600 judges were able to get through 700 cases a year each — as Mr. Sessions ordered them to — it would take years to clear up the existing backlog, and that’s before taking on a single new case.

This is why another important fix is to stop a large number of those cases from being heard in the first place. The Justice Department has the power to immediately remove as many as 700,000 cases from the courts’ calendar, most of them for low-level immigration violations — people who have entered the country illegally, most from Mexico or Central America, or those who have overstayed a visa. Many of these cases are years old, or involve people who are likely to get a green card. Forcing judges to hear cases like these clutters the docket and makes it hard to focus on the small number of more serious cases, like those involving terrorism or national-security threats, or defendants facing aggravated felony charges. At the moment, barely 1 percent of all cases in the system fall into one of these categories.

A thornier problem is how to stamp out the hard-line anti-immigrant culture that spread throughout the Justice Department under Mr. Trump, Mr. Sessions and the former president’s top immigration adviser, Stephen Miller. For instance, a 2019 department newsletter sent to immigration judges included an anti-Semitic reference and a link to VDare, an anti-immigrant group that regularly publishes white nationalists.

One of Mr. Biden’s first steps in office was to reassign the head of the immigration court system, James McHenry, who played a central role in many of Mr. Trump’s initiatives. But it’s generally hard to fire career civil servants, like the many judges and other officials tapped to promote Mr. Trump’s agenda. The Biden administration can reduce their influence by reassigning them, but this is not a long-term fix. While these judges are subject to political pressures, there can be no true judicial process.

If there’s any silver lining here, it is to be found in Mr. Trump’s overreach. The egregiousness of his administration’s approach to immigration may have accelerated efforts to solve the deeper structural rot at the core of the nation’s immigration courts.

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

We know that they aren’t “real courts;” but, they could and should be — progressive, due process oriented, model courts to boot! It will never happen, however, with the tone-deaf way Garland has approached EOIR in his first 60 days!

As progressives, immigration, human rights, women’s rights, due process, and racial justice advocates well know, Garland’s incredibly poor, downright insulting stewardship @ DOJ has already made things worse at EOIR! Every day this “fake” court system — a massive “big middle finger” to the integrity of American justice and a shocking betrayal of those who fought to preserve justice and bring the Biden Administration into power — continues is a “bad day” for equal justice, racial justice, and gender justice in America!

It’s also an inexcusable squandered opportunity for the Biden Administration to “recreate” the broken, biased, lacking in competence “Immigration Judiciary” as an independent progressive judiciary that was promised in rhetoric, but has been mocked in action.

Can any progressive imagine how the Heritage Foundation or the Federalist Society might have reacted if Trump, McConnell, Miller, and the DOJ had treated their recommendations for creating a reactionary far-right judiciary with the callous disregard and total disrespect that Garland has shown for the blueprint set forth by progressives for rapidly reforming the Immigration Judiciary into the model progressive judiciary needed to save American justice (not to mention save the lives of many of the most vulnerable, deserving, and needy among us)?

For Pete’s sake, Garland just gave Stephen Miller, “Billy the Bigot” Barr, and “Monty Python” “deference” on his first 17 totally inappropriate “judicial picks” while telling fighters for due process and human dignity to “go pound sand.” We weren’t even given the courtesy of being informed — Kowalski and I had to “smoke it out” with the help of “DT-21.”

“Courtesy and deference” for Miller, Barr, and “Monty Python;” total disrespect for the NDPA and the humans (“persons” under the Constitution) we represent? Come on, man!

The BIA has “restrictionist judges” going all the way back to the Bush II political travesty supplemented by Miller, Sessions, and Barr. Yet, there is not a single, not one, true progressive practical scholar-immigration/human rights expert among this “Gang of 23” — a group that includes a number of “appellate judges” who distinguished themselves with their overt hostility, to immigrants’ rights, rudeness to attorneys, and denial of nearly 100% of asylum claims coming before them. These are “Garland’s Judges?”

Worse, yet another totally inappropriate “insider appointment” to the BIA by Garland— bypassing the numerous far better qualified “practical scholars” in the private sector — is rumored to be in the offing! NO! This outrageous, tone-deaf performance and disrespect for progressive human rights experts by Garland must stop!

As the editorial correctly suggests, starting to fix EOIR, even in the absence of long overdue congressional action, is not rocket science! The incompetent senior “management” @ EOIR and the entire membership of the BIA can and should be reassigned. Tomorrow!

Experienced, highly competent, scholarly, creative, courageous, progressive judges already on the EOIR bench — like Judge (and former BIA Appellate Judge and DOJ Senior Executive) Noel Brennan (NY), Judge Dana Marks (SF), and Judge Amiena Kahn (NY) — should be detailed to Falls Church HQ to start fixing EOIR and getting the BIA functioning as a real appellate court — focused on due process, high quality scholarship, best practices, and holding ICE accountable for following the law — until more permanent appointments and necessary due process reforms can be made.

In the meantime, competent, progressive, temporary leadership can bring in temporary appellate judges at the BIA with sound records of fair asylum adjudication to end “refugee roulette” and eradicate the disgraceful “asylum free zones” being improperly run by unqualified IJs in some Immigration Courts. Reform of this disgustingly broken system can’t “wait for Godot” any longer!

As Judge Jeffrey Chase cogently stated in Law360, further “permanent” judicial appointments @ EOIR should be frozen pending development of merit-based criteria and active recruitment aimed at creating a more diverse, progressive judiciary. All existing “probationary judges” selected by Barr should have their positions “re-competed” under these merit-based criteria, with avenues of public input built into the permanent selection system.

Progressives, colleagues, members of the Round Table, members of the NDPA, if you’ve had enough of Garland’s lousy, insulting, tone-deaf, indolent, due-process-disparaging performance at EOIR let your voices be heard with the Biden Administration! What is going on at EOIR every day under Garland is not acceptable! The life-threatening, demeaning, totally unnecessary EOIR Clown Show must go! Now!

EOIR Clown Show Must Go T-Shirt — “EOIR Clown Show Must Go” T-Shirt Custom Design Concept — Continues to be in demand under Garland!

Due Process Forever!

PWS

05-09-21

🏴‍☠️👎🏻🤮“HOUSTON, WE’VE STILL GOT A PROBLEM!” — A HUGE AND GROWING ONE — Garland’s Failure To Restore “Justice @ Justice” Reverberates Throughout Our Nation!🆘

Judge Garland’s vision of “justice” for immigrants @ Justice:

Courtside Exclusive

By Paul Wickham Schmidt

May 5, 2021

This just in from a NDPA stalwart in Houston, TX:

Houston we still have a (huge) problem! Luckily we also have some great immigration advocates and members of the due process army.

. . . .

Houston EOIR is still closed for non-detained. They have just built a third immigration court here, “Greenspoint”, with over 30 brand new judges, just collecting dust (although that’s probably a good thing as it would only serve as a deportation mill). If you can believe the absurdity, you have to file a motion for change of venue + a motion to consolidate, to join family members whose cases have been placed in different courts all here in Houston. 🤦‍♂️🤦‍♂️

I believe Houston now has the 2nd largest backlog after New York City now, in large part due to the mismanagement by EOIR HQ.

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

From coast to coast, from the Rio Grande to the Great Lakes, Courtside followers and NDPA warriors are making it clear: Garland’s failure to take due process and racial justice in Immigration Court seriously and his disregard and disrespect for immigration/human rights experts is furthering havoc in the American justice system!

Is it “malicious incompetence” or just plain old incompetence and disregard for the due process rights of “the other” by Garland? Does it make any difference?

What will make a difference is flooding the Article IIIs with litigation challenging this ongoing constitutional nonsense and squandering of taxpayer funds! Overwhelm EOIR with applications for judicial positions and “bore out” the rotten foundations of this system from the inside with the tools of due process, fundamental fairness, and best practices! Also, inundate your Congressional representatives with demands that this blot on American justice be removed from the DOJ forthwith! Write those op-eds and keep informing your local media about the unmitigated, unnecessary, unconscionable, unconstitutional continuing disaster at Garland’s EOIR and how it destroys human lives on a daily basis! Shine the beacon of due process and justice on the dark, secretive, unconstitutional “Star Chambers” Garland operates in the guise of Immigration “Courts.”

NDPA legions, don’t be content to “wander in the wilderness” while clueless politicos and bureaucrats @ Garland’s DOJ destroy your sanity and the lives of the humans you represent! Stand up to institutionalized racism, continuing incompetence, disgraceful misogyny, intransigence, and ongoing “Dred Scottification” of communities of color by the Garland DOJ! End the DOJ’s anti-immigrant culture and disrespect for the defenders of due process and American democracy that goes on Administration after Administration as if your clients’ lives and your professional expertise were “chopped liver!” Enough is enough! Fight back against “Miller Lite Justice!”

My fellow warriors for justice, YOU are again being ignored, shut out, marginalized, abused, looked down upon, dehumanized, insulted, and scorned by yet another Dem Administration that YOU helped put in office! Time to stand up and be heard for YOUR rights, the rights of the people YOU represent, and the future of our Federal Judiciary and our American Democracy!

NO MORE “MILLER LITE @ JUSTICE!” ASK YOURSELVES: WHO WON THE LAST ELECTION? WHAT DOES IT MEAN TO “WIN” IF GARLAND CONTINUES TO RUN THE IMMIGRATION COURTS LIKE STEPHEN MILLER IS STILL IN CHARGE?

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

05-06-21

🇺🇸🗽👍🏼PRESSURE FROM HUMANITARIANS WORKS: Biden Finally Keeps Promise To Raise Refugee Cap To 62,500 After Strong Pushback From Earlier Bobble!

https://www.latimes.com/world-nation/story/2021-05-03/biden-lifts-trump-refugee-cap-after-delay-backlash

By MATTHEW LEE AND ZEKE MILLER

ASSOCIATED PRESS

MAY 3, 2021 1:48 PM PT

WASHINGTON —

President Biden is formally lifting the nation’s refugee cap to 62,500 this year, weeks after facing bipartisan blowback for his delay in removing former President Trump’s limit of 15,000.

Biden last month moved to expand the eligibility criteria for resettlements, removing one roadblock to refugees entering the U.S. put in place by Trump, but he had initially stopped short of lifting the annual cap, with aides saying they did not believe it was necessary. But Biden faced sharp pushback for not at least taking the symbolic step of authorizing more refugees to enter the U.S. this year and swiftly reversed course.

Biden, in a statement, said the new limit “erases the historically low number set by the previous administration,” adding that Trump’s cap “did not reflect America’s values as a nation that welcomes and supports refugees.”

“It is important to take this action today to remove any lingering doubt in the minds of refugees around the world who have suffered so much, and who are anxiously waiting for their new lives to begin,” Biden added.

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

So, excruciating, aggressive, very public pressure from progressive humanitarians works with a President who pays attention to facts and actually wants to govern in the public interest.

Maybe the same advocacy groups, interest groups, and legislators need to radically step up the pressure for progressive changes (or at least the end of active oppression) at the Immigration Courts, which are a main impediment to a fair asylum system. Folks, asylum seekers are “refugees” — first and foremost! The failure to recognize that and treat them legally and humanely is beyond disgraceful!

The unmitigated Immigration Court disaster also undermines racial justice in America every single day that “Team Garland” continues with Stephen Miller’s White Nationalist nativist policies and Miller’s restrictionist “judges” in the Immigration Courts!

Judge Garland has been “living in the Ivory Tower” for a long time, obviously too long! But Lisa Monaco and Vanita Gupta actually have had to make a living in the “real world” for the past four years. Somebody in the advocacy community who knows these two needs to pick up the phone and read them the “riot act” on the racist, misogynistic, nativist, anti-due-process, regressive, mismanaged human rights disaster unfolding on their watch every day at EOIR — America’s worst excuse for a “court system!”

Due Process Forever!

PWS

05-03-21

🏴‍☠️☠️⚰️SCOFFLAW ADMINISTRATION: Biden, Garland, Mayorkas Continue Trump Policies That Fuel Kidnapping Of Asylum Applicants, Aid Smugglers! — Molly O’Toole Reports @ LAT!

Molly O’Toole
Immigration Reporter
LA Times
Source: LA Times website

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=3c4571fa-1131-4b45-8fd5-a1903b21b58f

By Molly O’Toole

WASHINGTON — With shaking hands, Karen Cruz Caceres manages to hit record on the call.

“How many days have you gone without food?” she asks into the phone.

Tani, her younger sister, is heard sobbing. “Help me,” she gets out.

Cruz Caceres assures her: “I am going to pay today. I’ll make another deposit.”

The April 1 call ends abruptly, and Cruz Caceres stops recording.

A week before, Cruz Caceres, a single mother from Honduras who won asylum in Tennessee, had gotten another call that upended her already precarious life: Kidnappers in Nuevo Laredo, Mexico, had abducted her pregnant sister Tani and Tani’s 4-year-old son, and they wanted more than $20,000, according to a video recording of the call and messages reviewed by the Los Angeles Times. The family asked The Times not to use her sister’s last name, for fear of retribution from the kidnappers in Mexico and gangs back home.

Tani, 33, and her son were kidnapped on March 25, Cruz Caceres and lawyers said — just after U.S. authorities expelled them from Texas alongside other mothers and children under a Trump-era pandemic policy known as Title 42, which President Biden has continued.

The unprecedented policy, which relies on an obscure 1944 public health statute to indefinitely close the border to “nonessential” travel, has made migrant children and parents easy prey for the criminal groups waiting just on the other side. Biden’s continued reliance on Title 42 to quickly remove the vast majority of migrants at the southern border without due process contrasts with his pledge to restore “human dignity” to a U.S. immigration system targeted by former President Trump.

“My sister and my nephew were told they were going to kill them and feed them to the dogs,” Cruz Caceres told The Times. “If [U.S. officials] want to deport them back to their country, why don’t they do it now like prior presidents did?” she asked. “Why dump them to try their luck in the most dangerous cities in Mexico, to get abducted by kidnappers?”

The abduction of migrants in northern Mexico and the extortion from U.S. family members isn’t new, lawyers, experts and officials told The Times — what’s new is the reliance on Title 42 to expel thousands of these already vulnerable families, leaving them at the mercy of kidnappers and other criminals.

Since the Trump administration implemented Title 42 in March last year amid a global pandemic, U.S. border officials have carried out more than 630,000 expulsions under the policy, some 240,000 since Biden took office in January, according to a Times analysis of the latest government data.

. . . .

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

Read the rest of Molly’s article at the link.

The Biden Administration ran and took office on a platform of kinder, saner policies that would restore human rights and the rule of law at the border. So far, that promise has been a deadly lie!

Arbitrarily and unlawfully closing legal ports of entry to asylum seekers and abrogating asylum and refugee laws plays directly into the hands of human smugglers and cartels while expanding the extralegal immigration system and the resulting underground of undocumented residents. Many of these individuals could and should have been legally admitted through legal channels if we had a functioning immigration system overseen by fair, impartial, expert Immigration Courts staffed with well-qualified progressive Immigration Judges.

Inevitably and predictably, these gross government failures lead to the type of human tragedy that occurred yesterday when a smuggling boat sank off the California coast, killing at least three and injuring dozens. https://www.latimes.com/california/story/2021-05-02/boat-capsizes-off-coast-of-point-loma

Naturally, with no legal asylum system in place, and with asylum seekers arbitrarily rejected at legal ports of entry, as described in Molly’s article, desperate individuals will turn to smugglers to achieve refuge. It’s not rocket science; but sadly the human tragedy that illegal, inhumane government policies cause at our border appear to be “out of sight, out of mind” to Judge Garland and other Biden Administration officials. That is, until the dead bodies start to pile up on their doorsteps!

🇺🇸⚖️🗽😎🧑🏽‍⚖️👨🏻‍⚖️Due Process Forever!

PWS

05-03-21

🛡⚔️👍🏼“SIR JEFFREY” CHASE — Garland’s Immigration “Judges” Pull The Ol’ “Bait & Switch” — They Only Are “Judges” When “OIL” Is Trying To Convince Ethically & Legally Challenged Article III Courts To “Defer” To EOIR Decisions — Otherwise, They Are Expected To Act Like DOJ ”Grundoons” Mindlessly Carrying Out The Executive’s Agenda Cloaked In Quasi-Judicial Disguise!

Grundoon
From Walt Kelly’s “Pogo”
SOURCE: Pininterest

Grundoon: A diapered baby groundhog (or “woodchunk” in swamp-speak). An infant toddler, Grundoon speaks only gibberish, represented by strings of random consonants like “Bzfgt”, “ktpv”, “mnpx”, “gpss”, “twzkd”, or “znp”. Eventually, Grundoon learns to say two things: “Bye” and “Bye-bye”. He also has a baby sister, whose full name is Li’l Honey Bunny Ducky Downy Sweetie Chicken Pie Li’l Everlovin’ Jelly Bean. [From the Walt Kelly comic strip “Pogo.”]

https://en.wikipedia.org/wiki/Pogo_(comic_strip)

https://www.jeffreyschase.com/blog/2021/4/29/the-dojs-contradictions

Contact

The DOJ’s Contradictions

In a recent blog post, I discussed the difficulty in establishing asylum based on a political opinion expressed against MS-13. In the specific case discussed, the Board of Immigration Appeals reversed the Immigration Judge’s finding that the asylum-seeker had expressed a political opinion to MS-13 members.1 In reversing the Immigration Judge, the BIA specifically stated as to MS-13 that “the gangs are criminal organizations, and not political or governmental organizations and gang activities are not political in nature.” The BIA has repeatedly expressed this same view (using this or similar boilerplate language) in its decisions denying asylum. In the particular case discussed in my blog post, a split panel of the Second Circuit Court of Appeals could not find enough evidence of record to compel the majority to overturn the BIA’s conclusion.

The BIA is of course a part of the U.S. Department of Justice; its judges are appointed by and employed by the Attorney General. Former Deputy Attorney General Rod Rosenstein was one of the Department officials to make the following point to a class of new Immigration Judges in March 2019:

Immigration judges appointed by the Attorney General and supervised by the Executive Office for Immigration Review are not only judges. First, you are not only judges because you are also employees of the United States Department of Justice. It is a great honor to serve in this Department. In the courtyard just outside the entrance to this Great Hall, high up on the interior wall of the Main Justice building, there is a depiction of the scales of justice and an inscription that reads, “Privilegium Obligatio.” It means that when you accept a privilege, you incur an obligation. In this Department, our duty is in our name. We are the only cabinet agency with a name that articulates a moral value.

Justice is not measured by statistics. Our employees learn from day one that their duty is to gather the facts, seek the truth, apply the law, and respect the policies and principles of the Department of Justice.

The second reason that you are not only judges is that in addition to your adjudicative function – finding facts and applying laws – you are a member of the executive branch. You follow lawful instructions from the Attorney General, and you share a duty to enforce the law.2

The clear message being conveyed is “Don’t get any big ideas of judicial independence and neutrality; you work for ‘Team Justice,’ and you will behave accordingly.” Am I alone in thinking that the motto cited by Rosenstein, “when you accept a privilege, you incur an obligation,” here comes across as a boss reminding new employees where their loyalties lie rather than as a commitment to truth and justice?

As wrong as this message is when conveyed to judges who are supposed to enjoy the independence and neutrality to rule against the Department of Justice and the Attorney General when the facts and law compel such an outcome, let’s examine this view for the consistency of its application as to all DOJ employees. Presumably, the Board’s official stance that MS-13 is not a political organization and that its activities are criminal and not political in nature enjoys the Department’s seal of approval. In fact, other Department of Justice attorneys, working for the Office of Immigration Litigation, defend that view when the BIA”s decisions are reviewed on appeal by the Circuit Courts. I’m not aware of any Attorney General action to certify a BIA decision expressing this view in order to correct the Board’s position on this issue, or even to remand to the Board for further consideration of its position in light of other conflicting views within the Department.

Regarding such conflicting views, I was recently made aware of a criminal indictment drafted by the U.S. Attorneys’ Office in the Eastern District of New York.3 The indictment was filed in December, 2020, while the Trump Administration was still in office. The opening paragraph of the indictment states that MS-13 is a transnational criminal organization engaged in terrorist activity, and that its members use violence “in order to obtain concessions from the government of El Salvador, achieve political goals and retaliate for government actions against MS-13’s members and leaders.” (emphasis added).

The indictment contains a specific section titled “Political Influence in El Salvador.” The indictment states that a unit of MS-13, the Ranfla Nacional, “gained political influence as a result of the violence and intimidation MS-13 exerted on the government and population of El Salvador.” It continued that the organization exercised leverage on the Salvadoran government through its control on the level of violence. The indictment states that in 2012, MS-13 exercised its leverage to negotiate a truce with the ruling FMLN party and its rival 18th Street “to reduce homicides in El Salvador in return for improved prison conditions, benefits and money.” According to the indictment, MS-13 also negotiated a similar agreement with the rival ARENA party, promising to deliver votes in return for benefits. The indictment states that over time, “the Ranfla Nacional continued to negotiate with political parties in El Salvador and use its control of the level of violence to influence the actions of the government in El Salvador.”

The indictment also contains a section explaining the purpose of the Ranfla Nacional. The second specific goal listed is: “Influencing the actions of governments in El Salvador and elsewhere to implement policies favorable to MS-13.”

The attorneys who made the above claims in an indictment filed in Federal District Court are also employees of the U.S. Department of Justice. They are also members of the executive branch, following lawful instructions from the Attorney General, and sharing a duty to enforce the law. In the Second Circuit case I recently discussed, other Department of Justice attorneys in their brief to the court defended the Board’s decision by depicting MS-13 as “an institution that is entirely non-governmental – that is…a group of criminals who, in fact, reject the rules set out by the government.” Noticeably absent from the same brief was any mention that this “rejection of the rules set out by government” includes strategies to pressure said government into undertaking specific actions, as well as its entering into negotiations and ultimately agreements with political parties, the terms of which include MS-13’s delivering votes in return for the parties’ commitment to enacting beneficial policies.

So how can it be that attorneys in one office of the Department of Justice argue that MS-13 as an organization is engaged in exerting political influence to achieve its political goals, and at the same time, another group of attorneys within the same Department of Justice can sign orders sending victims of the same MS-13 to their death by employing a boilerplate sentence that MS-13 is not a political organization and its activities are not political in nature? And that the decisions of that latter group are then defended by a third group of Department attorneys on appeal who make no mention of the conflicting arguments? Let’s remember that, according to Rosenstein, these attorneys were taught from day one that their duties as Department of Justice employees include gathering the facts and seeking the truth.

In 1997, a very different BIA wrote the following in a decision that, although still binding as precedent, seems long forgotten:

immigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done. In that regard, the handbook for trial attorneys states that “[t]he respondent should be aided in obtaining any procedural rights or benefits required by the statute, regulation and controlling court decision, of the requirements of fairness.” Handbook for Trial Attorneys § 1.3 (1964). See generally Freeport-McMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 48 (D.C. Cir. 1992)(finding astonishing that counsel for a federal administrative agency denied that the A.B.A. Code of Professional Responsibility holds government lawyers to a higher standard and has obligations that “might sometimes trump the desire to pound an opponent into submission”); Reid v. INS, 949 F.2d 287 (9th Cir. 1991)(noting that government counsel has an interest only in the law being observed, not in victory or defeat).4

This matter deserves the immediate attention of Attorney General Merrick Garland. The ability of asylum seekers to receive a fair review of their claims based on accurate information is a matter of life and death. At this early stage of the Biden Administration, it is critical that the Department send a clear message that the “obligation” mentioned in its motto is to serve an ideal of justice that is independent of the particular politics of those temporally in charge.

Copyright 2021 Jeffrey S. Chase. All rights reserved.

Notes:

Zelaya-Moreno v. Wilkinson, No. 17-2284, ___ F.3d ___ (2d Cir., Feb. 26, 2021).

https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-opening-remarks-investiture-31-newly.

E.D.N.Y. Docket No.: 20-CR-577 (JFB). The Department of Justice’s Press Release can be found here: https://www.justice.gov/usao-edny/pr/ms-13-s-highest-ranking-leaders-charged-terrorism-offenses-united-states.

Matter of S-M-J-, 21 I&N Dec. 722, 727 (BIA 1997).

APRIL 29, 2021

Reprinted by permission.

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

As most outside the nativist world know, the BIA’s position that Northern Triangle gangs aren’t political in nature and action is absurd! For Pete’s sake, these guys negotiate “peace treaties” with governments, control large swaths of territory, manipulate “public death rates” for political gain, aid or punish political candidates and police, collect taxes, control jobs, and have economic policies. Sure sounds like a quasi-governmental, clearly political entity to me. Somewhere, there is a dissent of mine in an old published CAT case saying approximately that.

At least at one point, gangs in El Salvador controlled more jobs than did the Salvadoran Government! No competent, unbiased group of adjudicators (not to mention supposed “experts”) could have reached the BIA’s ridiculous, clearly politicized conclusions!

Sadly, to date, Judge Garland has followed in the footsteps of his dilatory Dem predecessors by destroying lives, promoting injustice, and blowing the Dems’ best chance to build a progressive, due process oriented, human rights advancing judiciary that also would help resolve America’s failure to come to grips with the 1951 U.N. Refugee Convention and its key role in our legal immigration system as well as being a prerequisite to achieving racial justice in America.

Supposedly, these are the goals of the Biden Administration. Unfortunately, Garland, Monaco, and Gupta haven’t gotten the message, although it has been “delivered” time after time by numerous experts and advocates!

A few historical notes:

I was on the en banc BIA that decided Matter of S-M-J-, cited by Jeffrey. It was written by Judge Michael J. Heilman, a fellow Wisconsinite who once had worked for me at the “Legacy INS” General Counsel, following service as a State Department consular officer. That case “originated” on a three-member panel of Heilman, the late Judge Lauri Steven Filppu, and me. It reflects the “government wins when justice is done” message that I had incorporated into INS attorney training years earlier, as well as fealty to UN Handbook standards encouraged by the Supremes in INS v. Cardoza-Fonseca, and the “best practices” that bygone BIA was consciously and aggressively advancing.
Former DAG Rod Rosenstein was once a respected career prosecutor who served Administrations of both parties. Then, he “sold out” to the Trump Administration and its neo-fascists. Although that probably should have ended his legal career, he’s currently enjoying life in “big law” while those victims harmed and wronged by the illegal and unethical policies (or, in some cases their survivors) he furthered continue to suffer.

Radical progressive due process reforms @ EOIR, starting with wholesale personnel changes and revocation of restrictionist, racist, misogynist policies and practices is long overdue. Nearly two months into his tenure Judge Garland has yet to demonstrate awareness of the need for immediate, decisive action. Meanwhile the bodies continue to pile up and the “adverse decisions” from the Article IIIs bearing his name and tarnishing his reputation continue to roll in!

Actually, Judge, each wrong decision from the BIA represents a human life ruined, often irrevocably. Is that the type of “impact” on American justice that you intend to leave as your “legacy?”

EOIR HQ, Falls Church, VA (a/k/a “The Tower of Babel”)
By Pieter Bruegel The Elder
Public Domain

🇺🇸⚖️🗽🧑🏽‍⚖️👨🏻‍⚖️Due Process Forever!

PWS

05-01-21

☠️👎🏽⚰️🤮 PERVERSION OF “JUSTICE @ JUSTICE” — Immigration “Courts” Were Born Of A Bogus “National Security” Rationale — “[Author Alison] Peck couldn’t wrap her mind around the fact that these high-stakes cases with potentially life-or-death consequences were not being decided by impartial jurists in an independent court, but within the Department of Justice, a law enforcement agency.” — New Book By Professor Alison Peck Makes Overwhelming Case For Progressive Reforms, Impartial Expert Judges, Judicial Independence!

Professor Alison Peck — Professor & Author Alison Peck
Director, Immigration Clinic
West Virginia Law
PHOTO: West Virginia Law website

https://www.motherjones.com/politics/2021/04/the-original-sin-of-americas-broken-immigration-courts/

From Mother Jones:

The Original Sin of America’s Broken Immigration Courts

A new book reveals how this troubled system began with FDR and wartime paranoia.

Isabela Dias

Let our journalists help you make sense of the noise: Subscribe to the Mother Jones Daily newsletter and get a recap of news that matters.

During the Trump administration, Alison Peck started to see more of her cases have an outcome she describes as “a door just slammed” in the clients’ faces. A law professor and co-director of the Immigration Law Clinic at West Virginia University College of Law, Peck grew concerned that paths to immigration relief previously available to them were no longer an option. The explanation for it was an increasingly common practice whereby the US Attorney General, who is a political appointee, would self-refer cases previously decided by an immigration judge and then use them as vehicles for broad policy changes. These precedent-setting determinations included restricting asylum for victims of domestic violence and gang violence, and limiting immigration judges’ power to manage their dockets by temporarily closing low-priority cases. Some of Peck’s clients were impacted by both decisions. “It was very distressing to see this happen and have to tell people midway through the game that the rules had been changed,” she says. Hence, the experience of the door slammed shut.

Peck couldn’t wrap her mind around the fact that these high-stakes cases with potentially life-or-death consequences were not being decided by impartial jurists in an independent court, but within the Department of Justice, a law enforcement agency. “It didn’t make sense to me, and it didn’t fit with anything I knew about administrative law theory,” she says. So Peck decided to look for an explanation for how this anomalous system had been set up in the first place, and what rationale, if any, sustained it despite a general consensus that the existing structure is nothing if not broken.

Peck shares her findings in the upcoming book The Accidental History of the US Immigration Courts: War, Fear, and the Roots of Dysfunction, a revealing account of how wartime paranoia and xenophobia shaped a system that has been with us for over 80 years. “As long as the immigration courts remain under the authority of the Attorney General, the administration of immigration justice will remain a game of political football—with people’s lives on the line,” Peck writes. I called Peck to discuss what World War II and Nazi Germany have to do with modern-day US immigration courts, and how Congress can fix an “irrationally constructed” system.

You trace the origins of the architecture of immigration courts back to two pivotal moments. The first is 1940, when President Franklin D. Roosevelt moved the immigration services from the Department of Labor into the Department of Justice. How did that come about?

Immigration services had long been treated as kind of a stepchild within the Department of Labor. With the New Deal and the labor strife throughout the 20s and into the 1930s, the Secretary of Labor had the obligation to deal fairly and impartially with union leaders, many of whom were immigrants, but then also had the responsibility of investigating and deporting immigrants who were in the country unlawfully. That tension started to become pretty extreme. Francis Perkins, the Secretary of Labor at the time, ended up being in the political crosshairs in part because of her handling of immigration cases. She was in favor of immigration being moved out of the Department of Labor, but she didn’t think it was very appropriate to have it in the Department of Justice because it shouldn’t be associated with crime and law enforcement.

In fact, Roosevelt had resisted members of Congress and the public for over a year. He had lawyers in the DOJ study the issue, and they sent him a report concluding that moving the immigration services into the DOJ would be inappropriate and could change the understanding of immigration for the country. His attorney general at the time, Robert H. Jackson—who later became a Supreme Court justice and also presided at the Nuremberg trials—advised him against it, calling for a sort of temporary wartime agency that dealt with the threat of sabotage, rather than setting up a system that invites an entry of politics into immigration cases. So it’s not as if Roosevelt and his advisers didn’t understand the risks of what they were doing. They did, and they resisted it for some time. But because of the fear and the nature of the threat and things that they just couldn’t have known at the time, they decided, for lack of any better option, that they would do this.

At the time, the Roosevelt administration justified the move as a necessary response to a national security threat. How exactly did the war in Europe ultimately influence his decision?

In 1939, much of Congress was still pretty isolationist, and there was a lot of skepticism about Roosevelt’s willingness to get involved in the war and make the United States a leading force. The occupation of Denmark by the Nazis in April 1940 was really a game changer. The isolationism of the United States up until that point was based on this notion that we’re an ocean apart and protected by geography—what happens in Europe can’t affect us directly. But Denmark had possession of Greenland, so the Nazis had a base in North America where they could refuel, restock, and plan attacks from there.

By that time, the State Department and the FBI were both actively tracking what they saw as the “Fifth Column” threat: this idea that foreign nationals might be plotting to take over from within the country without anyone ever knowing what happened. When the invasion of France and the Low Countries occurred in May [1940], many people assumed that this must have been because people in high level positions within these countries were simply raising the drawbridge and letting the Nazis through without resistance. [Roosevelt] was very influenced by the visit that the Undersecretary of State Sumner Welles had paid to the Axis powers. He came back very worried and told Roosevelt “I think we need to make this move.” After Roosevelt had said no for a year, he changed his mind and within three days, it was done.

This decision looks very different in retrospect, doesn’t it?

It’s understandable in historical context that Roosevelt felt that he needed to do something to protect against what could be a serious threat. But in hindsight, he realized the fears were misplaced. As it happened, the Nazis kept their plans very close to the vest and didn’t trust people outside their inner circle. This “Fifth Column” was actually just propaganda and the enemy stoking fear in order to create insecurity and undermine Allies’ morale.

“What happened was that people were understandably fearful at times of national security crisis and were easily swayed by fear and propaganda that was spread precisely to create that type of fear.”

Looking back now, 80 years later, it certainly has had the effect that Roosevelt and his advisors feared of making immigration be equated with crime and caught up with the political process. It really is sort of a function of historical accidents that we have the system where it is. It’s not the case that anyone ever said it would make good sense from an administrative law perspective to have immigration adjudication done in the Department of Justice under the control of the Attorney General. That was not a conversation that ever occurred. What happened was that people were understandably fearful at the time of national security crisis and were easily swayed by fear and propaganda that was spread precisely to create that type of fear.

You write that the scenario Roosevelt had feared sixty years earlier of a foreign attack from within the country came to be in the early 2000’s with 9/11, and that in turn overhauled immigration policy in the twenty-first century. What did that overhaul mean specifically for immigration courts?

I looked to see whether there had ever been serious consideration of changing this system in the last 80 years, particularly after the realization that this so-called “Fifth Column” never really existed, and this was really just a response to Nazi propaganda that we are still stuck with. What I found was that in the 90s, there was some movement toward reform, but then 9/11 happened and changed the way Americans were thinking about foreign nationals, immigration, visas, and the relationship between the State Department and the FBI or other domestic law enforcement. For some time, it appeared that the immigration courts would be moved into [the recently created Department of] Homeland Security. Many people in Congress, especially Democrats, but some Republicans as well, were concerned about this. Maybe having it in a law enforcement agency wasn’t perfect, but having it in this national security agency, where it would once again be closely aligned with the prosecutors, would be even worse. With relatively little focus on the immigration courts at the time, the best that could be accomplished was to keep them in the Department of Justice instead of moving them into the Department of Homeland Security. It was an opportunity for reform that then got swept away by the events of 9/11.

After that, the issue sort of went underground again, until it started to appear on people’s radar screens during the Trump administration. Until then, the immigration courts were mostly allowed to function independently, and so people weren’t as up in arms about it. For the most part, Attorney Generals were pretty hands off and so people thought: Well, it’s a system that doesn’t make a whole lot of sense, but it mostly works, so it’s not that important to make this institutional change. I think it’s an unfortunate combination of political forces that has led the immigration courts to sort of limp along in this way.

“The Trump administration exposed the vulnerability that was already there in the system.”

Immigration courts were dysfunctional in nature long before Trump took office, but under his administration that gained a new dimension. What did this unprecedented politicization of the courts look like?

The Trump administration exposed the vulnerability that was already in the system. What we saw was a much higher level of intervention, about four times higher than even the George W. Bush administration, which had been the most active prior. One of the ways that happened was through the frequency with which the Trump administration used the Attorney General’s self-referral power, which means the Attorney General can take a case away from an immigration judge at any time and decide it as he wishes. In the Trump administration, that power was used 17 times in four years. Previously, the highest number had been 10 times over eight years.

In one case, the Attorney General made a statement that victims of domestic violence and gang violence would generally not meet the asylum standard. Officers within the Department of Homeland Security were confused by the scope of the decisions that were unprecedented. That confusion is still ongoing, and it affects what happens every day in the immigration courts. Immigration judges are feeling that their independence has been highly compromised, and they are hamstrung by the decisions of the Attorney General to do things that they actually think are just. This system that everyone tolerated for a while, assuming and hoping there wouldn’t be abuses, has now shown to be very clearly subject to abuses.

There’s currently a backlog of more than 1.3 million cases. Yet, despite what seems to be a consensus that immigration courts are not working as they should, we still have the same system from 80 years ago. Are there any solid arguments to justify keeping the immigration courts under the DOJ?

There may be an assumption by people that it was set up this way for a reason, and that we might be losing something if we changed it. When we look at the history, it makes clear that it really was a historical accident that we ended up with this system. There never was a coherent rationale. It was something that was done as a matter of exigency, when there wasn’t a good solution. And so they took a bad solution instead and stuck with it. There’s not a whole lot of efficiency or institutional knowledge that’s being gained by having these immigration courts within the Department of Justice.

I think most people in the United States are not even aware that the immigrant courts are not part of our federal judiciary. They may be assuming that there’s a certain fairness built in that we expect from the federal courts when, in fact, it isn’t there. These are not courts; they are part of a law enforcement agency. The system is actually set up in such a way that it allows for political decision-making to become part of these court cases in a way that Americans don’t usually think of court cases being decided. That’s really inconsistent with American notions of justice, fairness, and due process. We think that those are decided by what we hope and aspire to be independent judges who are not part of the political branches and not subject to the whims of politics. From that fundamental misunderstanding, if we look deeper, we can see a desire for change. We have the choice to change that now.

Your book seems to suggest that the problem runs way deeper than what stopgap measures like hiring more immigration judges could accomplish. What do you think is an appropriate approach to creating independent immigration courts?

Adding more immigration judges or changing the way immigration judges are hired to have more diversity are not bad ideas in and of themselves, but they don’t get at the root of the problem. The root of the problem is that the immigration courts were never really intended to be impartial courts. Under our basic founding Constitutional principles of due process and separation of powers, we can and should protect the adjudication process and make it separate from the law enforcement process. The Biden administration could play a role by urging Congress to seriously consider and to pass legislation that would separate immigration courts into an Article I court system. Article I courts are a relatively independent system set up by Congress and, by definition, would create separation between the immigration courts and the executive branch. That would give us something that approaches the fairness that people deserve.

This interview has been edited for length and clarity.

FACT:

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EOIR continues to apply “old time methods” to those poor souls stuck at the “retail level” of American “justice,” as “Team Garland” ignores the screams for help!

Four Horsemen — BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

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

Clearly, experts like Professor Alison Peck, who understand and have personally experienced the abominable, unconstitutional, life threatening unfairness of this broken and totally dysfunctional system should be the judges and intellectual leaders, particularly at the appellate level, of a reformed, independent Immigration Court system.

In a functioning legal system, successful asylum seekers would fill their essential role in increased legal immigration that has been denied them by a distorted, racist, misogynist system that treats them as a “problem to be solved” — largely because of their skin color — rather than humans entitled to our protection who will contribute to our future.

Indeed, every day we illegally turn away many of those we need for our future in their hour of direst need! Such selfishness, cruelty, mockery of the rule of law, and short-sightedness does not reflect well on our nation!

“It’s not rocket science,” but so far Garland, Monaco, and Gupta have “blown off” the advice of human rights experts like Professor Peck and refused to consult, elevate, or otherwise empower those who could bring due process, order, and expert, professional judging to the Immigration Courts!

Vanita Gupta
Associate AG, previously a widely respected expert in civil rights, human rights, and racial justice has so far failed to have an impact on institutionalized racism, misogyny, and reactionary “judging” at EOIR!
Photo: Brookings Institution, Paul Morigi, Creative Commons License

Lisa Monaco
Deputy AG, newly confirmed, but appears to have little awareness and no plans for aggressively reforming the worst “courts” in America, spewing out injustice at the DOJ.
Official USG Photo, Public Realm

Due Process Forever!

PWS

04-29-21

☠️⚰️🤮👎🏽BIDEN/GARLAND/MAYORKAS WITH MASSIVE HUMAN RIGHTS FAILURE: 40% Of Asylum Seekers Illegally Returned By Biden Administration Suffered Attacks, Kidnapping Upon Return To Mexico — None Were Given Legal/Human Rights To Apply For Asylum (Under A System Already Biased Against People of Color & Women)! — This & Other News In The Gibson Report, Prepared By Elizabeth Gibson, Esquire, NY Legal Assistance Group!

Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

COVID-19 & Closures

Note: Policies are rapidly changing, so please verify information with the government and colleagues.

EOIR Status Overview & EOIR Court Status Map/List: Unless previously specified on the court status list, hearings in non-detained cases at courts are postponed through, and including, May 14, 2021. (It is unclear when the next announcement will be. EOIR announced 5/14 on Mon. 3/29, 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28.) There is no announced date for reopening NYC non-detained at this time.

USCIS Office Closings and Visitor Policy

TOP NEWS

An Early Promise Broken: Inside Biden’s Reversal on Refugees

NYT: Secretary of State Antony J. Blinken was in the Oval Office, pleading with President Biden. In the meeting, on March 3, Mr. Blinken implored the president to end Trump-era restrictions on immigration and to allow tens of thousands of desperate refugees fleeing war, poverty and natural disasters into the United States, according to several people familiar with the exchange. But Mr. Biden, already under intense political pressure because of the surge of migrant children at the border with Mexico, was unmoved.

Trump Asylum Work Rules Under Review, Changes Possible, DOJ Says

Bloomberg: Trump regulations aimed at lengthening the amount of time an asylum seeker had to wait to apply for work authorization are now under review, with potential changes coming, according to a new government filing in a federal lawsuit over the rules.

New Report Documents Nearly 500 Cases Of Violence Against Asylum-Seekers Expelled By Biden

Intercept: A joint human rights report published Tuesday, based on more than 110 in-person interviews and an electronic survey of more than 1,200 asylum-seekers in the Mexican state of Baja California, documented at least 492 cases of attacks or kidnappings targeting asylum-seekers expelled under a disputed public health law, known as Title 42, since President Joe Biden’s January inauguration.

Biden’s open to doing immigration through reconciliation, Hispanic lawmakers say

Politico: A push from Biden touting the economic benefits of immigration reform could supplement efforts by progressive groups to sell a pathway to citizenship for undocumented people as a $1.4 trillion boon for the U.S. economy. It also may boost efforts by some on Capitol Hill to argue that a pathway to citizenship for some undocumented immigrants can be passed in a reconciliation package that, if sanctioned by the Senate parliamentarian, could move through the chamber with just 50 votes.

How ICE’s Mishandling of Covid-19 Fueled Outbreaks Around the Country

NYT: To date, Immigration and Customs Enforcement has reported over 12,000 virus cases. Our investigation found that the impact of infection extended beyond U.S. detention centers.

Nearly 4,000 MPP Cases Transferred Out of MPP Courts Under Biden, But Most Cases Still Remain In Mexico

TRAC: Rates of case transfers out of MPP varied by court, from a high of 28 percent of cases assigned to the MPP court in Brownsville, Texas, transferred to a non-MPP court, to a low of just three percent of cases assigned to the MPP court in Laredo, Texas.

They missed their U.S. court dates because they were kidnapped. Now they’re blocked from applying for asylum.

WaPo: Many missed their court dates because they were kidnapped and held hostage, or detained by Mexican officials, or because they couldn’t find a safe way to get to the border in the middle of the night, when most were told to arrive for their hearings, according to lawyers, advocates and the migrants themselves. Some had medical emergencies related to the conditions in which they waited. An untold number, their asylum cases now closed, remain in hiding in northern Mexico.

Unaccompanied migrant children spend weeks in government custody, even when their U.S.-based parents are eager to claim them

WaPo: More than 40 percent of the minors released by the government have at least one parent already living in the United States, but HHS has been taking 25 days on average to approve release and grant custody to the mother or father, a number that dipped to 22 days Thursday, according to the latest internal data reviewed by The Washington Post. It takes an average of 33 days to release minors to other immediate relatives, such as siblings.

Despite Biden’s union support, immigration judges left waiting

Roll Call: More than a month after former D.C. Circuit judge Merrick B. Garland was confirmed as attorney general, the Justice Department — which houses the U.S. immigration court system — has not intervened.

What America would look like with zero immigration

CNN: In short, if immigration remained at near-zero levels, within decades, the country could be older, smaller and poorer. But if the US government welcomed more newcomers, within decades, the country could be younger, more productive and richer.

Sex Work Prosecution Changes in New York Are a Welcome Step — but Not Enough

Intercept: Historically, the criminalization of “promoting” sex work has left the loved ones and roommates of sex workers, as well as sex worker rights advocates, vulnerable to prosecution. For many immigrant workers, the risk of deportation will remain. The DA’s office said that it would continue to bring other charges that stem from prostitution-related arrests. “Trafficking” will no doubt be used to carry out raids and harass survival workers.

LITIGATION/CASELAW/RULES/MEMOS

Justices Won’t Hear Texas Bid To Revive Public Charge Rule

Law360: The U.S. Supreme Court on Monday ruled Texas and 13 other states moved too quickly in attempting to revive the Trump-era public charge rule, saying the states would have to first make their case at the district court level.

BIA Finds Attorney Provided Ineffective Assistance by Missending Medical Examination

Unpublished BIA decision finds prior attorney provided ineffective assistance by mistakenly submitting medical examination to USCIS rather than immigration court. Special thanks to IRAC. (Matter of Samuels-Foster, 7/30/20) AILA Doc. No. 21042002

BIA Finds IJ Improperly Drew Falsus in Uno Inference

Unpublished BIA decision finds IJ improperly drew falsus in uno, falsus in omnibus inference where sole false testimony related to whether respondent rather than his prior attorney signed his adjustment application. Special thanks to IRAC. (Matter of Luwaga, 7/31/20) AILA Doc. No. 21042001

CA3 3rd Circ. Says Courts Can’t Help Asylum-Seeker Define Group

Law360: Immigration courts were not required to help a Mexican immigrant refine his definition of the persecuted group he identified with in order to prevent his deportation, a Third Circuit panel has ruled.

CA3 Holds That INA §237(a)(2)(B) Provides No Pardon Waiver for a Controlled Substance Offense

Denying the petition for review, the court held that INA §237(a)(2)(B), which provides for removal of a noncitizen convicted of a violation of any law or regulation of a state relating to a controlled substance, contains no pardon waiver. (Aristy-Rosa v. Att’y Gen., 3/16/21) AILA Doc. No. 21041934

CA8 Upholds Denial of Asylum to Somali Petitioner Who Was a Member of a Minority Islamic Sect

The court held that the petitioner was removable because his Minnesota conviction for possession of khat related to a federal controlled substance pursuant to INA §237(a)(2)(B)(i), and found that the petitioner had failed to prove that he was entitled to asylum. (Ahmed v. Garland, 4/8/21) AILA Doc. No. 21041935

CA8 Says “Serious Reasons for Believing” Standard Under INA §208(b)(2)(A)(iii) Requires a Finding of Probable Cause

Where BIA had denied asylum to petitioner based on a finding that serious reasons exist to believe he committed a serious nonpolitical crime, the court held that the “serious reasons for believing” standard requires a finding of probable cause. (Barahona v. Garland, 2/3/21, amended 4/15/21) AILA Doc. No. 21021636

CA8 Concludes That Petitioner Was Barred from Cancellation of Removal Based on His Iowa Conviction for Possessing Marijuana

The court held that the BIA did not err in determining that petitioner’s Iowa conviction for possession of a controlled substance disqualified him from relief in the form of cancellation of removal, because the Iowa statute is divisible as to marijuana offenses. (Arroyo v. Garland, 4/14/21) AILA Doc. No. 21041937

CA9 Affirms District Court’s Grant of a Preliminary Injunction Against Third Country Transit Ban

The court upheld the district court’s grant of a preliminary injunction against the implementation of a DHS/DOJ joint interim final rule that categorically denies asylum to individuals arriving at the U.S./Mexico border. (East Bay Sanctuary Covenant v. Garland, 7/6/20, amended 4/8/21) AILA Doc. No. 20070636

CA9 Concludes IJ’s Adverse Reasonable Fear of Torture Determination Was Not Supported by Substantial Evidence

Granting the petition for review and remanding, the court held that the IJ’s decision to affirm the asylum officer’s adverse reasonable fear of torture determination as to the Honduran petitioner was not supported by substantial evidence. (Alvarado-Herrera v. Garland, 4/13/21)

AILA Doc. No. 21042032

CA11 BIA Mishandling Of Forged Letter Resurrects Removal Appeal

Law360: The Eleventh Circuit has revived a Gambian man’s bid to remain in the U.S., chiding the Board of Immigration Appeals for misrepresenting how attorney misconduct, including an alleged forgery, skewed his removal proceedings.

Texas Says Biden Admin. Ignores COVID-19 Immigration Rule

Law360: Texas’ attorney general said in a federal court complaint Thursday that the Biden administration was not abiding by Trump-era U.S. Centers for Disease Control and Prevention rules meant to reduce the spread of COVID-19 by restricting illegal immigration.

ICE Must Hand Over Alternatives To Detention Records

Law360: U.S. Immigration and Customs Enforcement must hand over records related to its Alternatives to Detention program by May 3, in response to a lawsuit in New York federal court seeking information on how the agency surveils immigrants in its supervision.

ICE Rescinds Civil Penalties for Failure to Depart

Posted 4/23/2021

DHS announced that ICE has rescinded two delegation orders related to the collection of civil financial penalties for noncitizens who fail to depart the United States. ICE had initiated enforcement of civil penalties in 2018; as of January 20, 2021, ICE ceased issuing these fines.

AILA Doc. No. 21042331

DHS Notice of Suspension of Requirements Governing Employment for Venezuelan F-1 Students

Posted 4/22/2021

DHS notice of the suspension of certain requirements governing employment for F-1 students from Venezuela who are experiencing severe economic hardship as a result of the humanitarian crisis in Venezuela. (86 FR 21328, 4/22/21)

AILA Doc. No. 21042106

DHS Notice of Suspension of Requirements Governing Employment for Syrian F-1 Students

Posted 4/22/2021

DHS notice of the suspension of certain requirements governing employment for F-1 students from Syria who are experiencing severe economic hardship as a result of the civil unrest in Syria. (86 FR 21333, 4/22/21)

AILA Doc. No. 21042105

CBP Memo Updating Terminology for CBP Communications and Materials

Posted 4/21/2021

Troy Miller, senior official performing the duties of the commissioner, issued a memo establishing guidance on the preferred use of immigration terminology within the federal government. The memo provides a table listing prior terminology and the new terminology CBP will use moving forward.

AILA Doc. No. 21042100

ACTIONS

USCIS Request for Public Input on Reducing Administrative Barriers: Comments are due May 19, 2021.

March to Victory: Relay Across America

RESOURCES

AIC: The First 100 Days: Biden on Immigration Detention

AILA: Client Flyer: Extension of DED for Liberians

AILA: Client Flyer: Receipt Notice Delays and Related Intake Issues

AILA: From China’s One-Child Policy to Central America’s Gender-Based Violence Epidemic: An Argument for Expansive Application of the “Coercive Population Control” Political Opinion Ground

Asylos

Sierra Leone: Support for former victims of trafficking (AFR2021-01)

Namibia: Situation for people from Ovahimba tribe and treatment for diabetes (AFR2020-30)

Ecuador: Indigenous female children’s protection from domestic abuse and harassment, and young Indigenous mothers’ access to education and employment opportunities (AME2021-03)

India: Harassment and violence against Christians (ASI2021-01)

Ethiopia: Discrimination and violence against Eritrean children in Ethiopia (MEN2021-03)

Azerbaïdjan : Etat des lieux sur la corruption, l’opposition et les rapatriés (CIS2021-01)

CLINIC: Department of Homeland Security (DHS), I-9 and REAL ID Policies

CLINIC: Five Things to Know about Fraud and Marriage-Based Petitions

CLINIC: Executive Office for Immigration Review (EOIR)

CLINIC: Legislative Relief Packages

CLINIC: Presidential Proclamations and Other White House Policies

CLINIC: U.S. Citizenship and Immigration Services (USCIS)

CWS: COVID-19 Vaccine Informational Videos for Refugee Communities (multiple languages)

DOJ OIG: Limited-Scope Review of the Executive Office for Immigration Review’s Response to the Coronavirus Disease 2019 Pandemic

HRF: Failure to Protect: Biden Administration Continues Illegal Trump Policy to Block and Expel Asylum Seekers to Danger

IAN: Webinar Handout: Mendez Rojas Settlement Agreement

Immigrants Rights Voices – Map of Retaliation

ImmProf: Chart of Terminology Changes at CBP

NIP/NLG: Aggravated Felonies and the Harmful Exclusion of People from Immigration Relief

Witness Radio: Title 42, The Invisible Border Wall

EVENTS

4/26/21 Clean Slate Advocacy Day training

4/27/21 The Relationship Between Immigration and Journalism

4/27/21 Dusting Off DACA

4/27/21 Relief for immigrant youth under the Biden administration – Deferred Action for Childhood

4/28/21 Spring 2021 Asylum Seminar

4/28/21 A Chance to Come Home: A Roadmap to Bring Home the Unjustly Deported

4/28/21 Community Defense: Legal Service Partnerships with Organizers

4/29/21 Adjudication of trauma in immigration proceedings

4/30/21Dismantling MPP Moving Forward: Lessons Learned From Working With Detained People and Formerly Separated Families

5/3/21 Finding A New Norm: Resilience Fundamentals

5/4/21 Dealing with Difficult People

5/4/21 Avoiding Future Travel Issues for Clients with COVID-19 Travel Complications

5/4/21Public Charge: Current State of Play

5/5/21 100 Days: Accountability on Immigration

5/5/21-5/6/21 U Visas: Advanced & Emerging Issues

5/5/21 Straight Talk on Stress in Law and How to Cope: Mindfulness for Lawyers

5/6/21 IDP: The Ethics of Representing Clients with Criminal Contacts

5/6/21Hot Topics in Asylum Law

5/6/21 Advanced Considerations in TPS & DED (Late-breaking)

5/10/21All About DOJ Recognition and Accreditation

5/12/21 NYIC: Legal Research and Writing Training Series

5/12/21New Virtual Workshop Models

5/13/21Marijuana and Immigrants

5/17/21-5/20/21CLINIC Convening 2021

5/18/21 DOJ Recognition & Accreditation

5/18/21Ethics in Representing Family Members in U Visa, U AOS/929, and VAWA Cases

5/19/21 Phase 1 of a SIJS case: the intersection of immigration law and family law

5/20/21 Understanding your Client’s Contact with the Criminal Legal System in New York City

5/26/21Hot Topics in Removal Defense

6/1/21VAWA Adjustment of Status Fundamentals

6/2/21-6/23/21 CLINIC Webinar Series: Overview of Immigration Consequences of Crimes

6/8/21-6/29/21 CLINIC Webinar Series: Citizenship and Naturalization

6/9/21-6/12/21 2021 AILA Virtual Annual Conference on Immigration Law

6/9/21Hot topics: Adjudication and Enforcement Trends

6/10/21Public Charge and Hot Topics in Consular Processing

6/14/21Taxes at the Border: Understanding the Tax Consequences of Immigration Status

6/15/21U Visa Hot Topics

6/15/21Motions to Reopen in Immigration Court: Part III – VAWA Self-petitioners

6/16/21 Phase 2 of a SIJS case: Preparation & submission of the immigration forms to USCIS

6/22/21Defending Immigration Removal Proceedings 2021

6/30/21Immigration Update – June 2021

7/21/21 The ethics of dual representation (child and guardian) in SIJS practice

7/22/21PLI: Defending Immigration Removal Proceedings 2021

9/23/21Representing Children in Immigration Matters 2021: Effective Advocacy and Best Practices

ImmProf

Monday, April 26, 2021

Immigration Article of the Day: Regional Immigration Enforcement by Fatma Marouf

Sunday, April 25, 2021

Map of Retaliatory Actions Against Immigrant Activists

Human Smugglers Bypass Border Patrol, Deaths on the Border in South Texas

Immigration Article of the Day: The War Against Asian Sailors and Fishers by Gabriel Jack Chin and Sam Chew Chin

Saturday, April 24, 2021

Protagonist of The Infiltrators Speaks Out Against Deportation of Whistleblowers

Immigration Article of the Day: Athletes in Transit: Why the Game is Different in Sports and the Visas Should be Too by David P. Weber

Friday, April 23, 2021

Balls of F$%*ing Steel

April 29: Bridging the Scientific-Legal Divide in the Adjudication of Trauma in Immigration Proceedings, UC Davis Global Migration Center

Immigration Article of the Day: (Un)Equal Immigration Protection by Carrie Rosenbaum

American First Legal (a/k/a Stephen Miller’s Foundation) teams with Texas in challenge to Biden immigration policies

Accolades: Emily Ryo

Thursday, April 22, 2021

April 24: Access to Justice Scholar Showcase

May 07: ABA Administrative Law Section Virtual Live Spring CLE Conference

From the Bookshelves: Taste of Belonging by Welcoming America

Wednesday, April 21, 2021

Conference June 9-11, 2021: ‘Ageing Gracefully? The 1951 Refugee Convention at 70’

Tuesday, April 20, 2021

Chart of Terminology Changes at CBP

In Defense of Chain Migration

What America would look like with zero immigration

Rutgers Law: Latinx Civil Rights Conference

Call for Proposals: Global Borderlands: getting to the core of Crimmigration

Monday, April 19, 2021

Oral Argument in Sanchez v. Mayorkas

From the Bookshelves: The End of Asylum by By Andrew I. Schoenholtz, Jaya Ramji-Nogales, and Philip G. Schrag

Peter Margulies: Biden’s Border Problem, and How to Fix It

More inclusive language for immigrants at ICE, CBP

America First Caucus Scrapped

Senator Booker Revives Bill To Overhaul Immigration Detention

Immigration Article of the Day: Expanding the Geographies of ‘Sanctuary’ and the Deepening and Contentious Nature of Immigration Federalism: The Case of California’s SB 54 by William Arroacha

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

The failure of President Biden, Judge Garland, and Secretary Mayorkas to end the grotesque abuse of asylum seekers at our borders will be a blot on their records. Human lives are at stake!

And establishing a due process compliant, robust, generous asylum adjudication system in the U.S. is not “rocket science.” With better, more courageous leadership, and different judges (a number of whom are already on the EOIR payroll), and a partnership with NGOs and organizations who know asylum law, a much better system could have been up and functioning well before now!

Just one word to describe the performance so far: INEXCUSABLE!

Biden Border Message — “Border Message”
By Steve Sack
Reproduced under license

Due Process Forever!

PWS

04-28-21

🏴‍☠️☠️HOW RACIST DISTORTIONS & ABROGATIONS OF EQUAL PROTECTION & DUE PROCESS IN IMMIGRATION LAW FEED & REINFORCE INSTITUTIONALIZED RACISM IN AMERICAN LAW GENERALLY! — New Scholarship By Carrie Rosenbaum Highlights An Old Problem That Is Destroying American Law & Ripping Apart Our Society!🤮👎🏽

James “Jim” Crow

“Jim Crow” is still alive and well @ EOIR. To date, Judge Garland & his team seem to think that the rest of us won’t notice what’s happening in “his” Immigration Courts and how it undermines every aspect of his claim to be restoring faith in the DOJ and the American justice system. A progressively-oriented, independent, expert Immigration Judiciary is a prerequisite for finally achieving racial justice in 21st Century America. So far, Judge Garland has NOT enunciated any plan to “get there,” nor has he even publicly acknowledged the many disgraceful problems plaguing EOIR!

https://lawprofessors.typepad.com/immigration/2021/04/immigration-article-of-the-day-unequal-immigration-protection-by-carrie-rosenbaum.html

From ImmigrationProf Blog:

(Un)Equal Immigration Protection by Carrie Rosenbaum, 50 Sw. L. Rev. 232 (2021)

ABSTRACT

This article will contribute to immigration equal protection jurisprudential discussions by highlighting the way in which the plenary power in immigration equal protection cases creates a barrier parallel to the intent doctrine—both prohibit curtailment of government action resulting in racialized harm. The scant recognition of the double duty done by plenary power and the intent doctrine reflects the banality of what may appear as a mere redundancy at first glance. However, the insidiousness of the double-barrier all but ensures that equal protection challenges to facially race-neutral immigration laws with disparate impact will fail. Plenary power is effectively duplicative of the intent doctrine because the intent doctrine already results in great deference to lawmakers.

. . . .

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

Read the full abstract at the link.

Unquestionably, immigration jurisprudence has intentionally misread the due process and equal protection clauses to achieve racist immigration policies. Getting rid of these perversions — analogous to the legal and judicial gobbledegook used by White men to make the 14th and 15th Amendments (and to a large extent, the 13th Amendment) “dead letters” for African Americans following Reconstruction — isn’t a matter of complicated legal thinking. It’s a matter of better Federal Judges and better legislators. And, the mess @EOIR — our Immigration “Courts” — is the best and most logical place to begin the long overdue task of instituting constitutional compliance and equal justice for all.

To date, Judge Garland’s failure to demonstrate a commitment to eliminating unconstitutional racism and misogyny (not to mention poor quality decision-making which also disproportionately affects individuals and communities of color) in his Immigration “Courts” threatens to destroy our legal system and “kneecap” American democracy.

We are in the perilous position we are today because past Administrations, to the extent they have even tried to address systemic racism (obviously, the Trump Administration sought the exact opposite — to deepen, protect, and promote racism and hate), have intentionally or negligently ignored the clear link between immigration law and racism in the rest of our legal system.

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

04-26-21

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Elliot Spagut reports for AP:

Due Process Forever!

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Because of it’s critical importance and it’s “right on” expose of the most glaring problem in American justice today, this timely editorial is quoted in full:

Due Process Forever!

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Judge Garland’s vision of “justice” for immigrants @ Justice:

Courtside Exclusive

By Paul Wickham Schmidt

May 5, 2021

This just in from a NDPA stalwart in Houston, TX:

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

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🇺🇸⚖️🗽😎🧑🏽‍⚖️👨🏻‍⚖️Due Process Forever!

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🇺🇸⚖️🗽🧑🏽‍⚖️👨🏻‍⚖️Due Process Forever!

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EOIR continues to apply “old time methods” to those poor souls stuck at the “retail level” of American “justice,” as “Team Garland” ignores the screams for help!

Due Process Forever!

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Due Process Forever!

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🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

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