"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
“Reading the broad language of §§ 1003.10(b) and 1240.1(a)(1)(iv), we conclude that these regulations give the IJ the Attorney General’s discretionary authority to grant a § 1182(d)(3)(A)(ii) waiver. … [W]e grant the petition, vacate the BIA’s final removal order, and remand for further proceedings consistent with this opinion.”
Seldom has a supposed quasi-judicial tribunal worked as hard as the current BIA to find limits on its ability to solve legal and humanitarian problems. That leaves the work to the Circuits, as in this case.
So, why have EOIR at all? The system clearly is unconstitutional because it lacks fair and impartial adjudicators and even minimally competent administration of due process. If Garland, Monaco, and Gupta have no interest in fixing these glaring problems, then why not just transfer EOIR’s functions to the U.S. District Courts and U.S. Magistrate Judges under the supervision of the Courts of Appeals?
Dems talk big about the need for a more progressive Federal Judiciary to achieve racial justice. But, given the chance actually to create one, they sit on their hands!
Not so the GOP! Restrictionists, nativists, reactionaries and White Nationalists recognize the repressive power of a captive and co-opted Immigration Judiciary and act accordingly. “Act” — that’s the operative word that doesn’t appear to be in the Dem’s vocabulary when it comes to building a better Federal Judiciary for a better America.
Progressives might initially have cheered the appointment of these three to top leadership posts @ the DOJ. But, to date, they have shown no interest in rescinding Stephen Miller’s White Nationalist immigration policies or replacing Miller’s nativist judges with progressive expert judges @ EOIR.
Judge Merrick B. Garland, U.S. Attorney General Official White House Photo Public RealmLisa Monaco Deputy AG Official USG Photo, Public RealmVanita Gupta Associate Attorney General Photo: Brookings Institution, Paul Morigi, Creative Commons License.
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.”]
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.
Matter of S-M-J-, 21 I&N Dec. 722, 727 (BIA 1997).
APRIL 29, 2021
Reprinted by permission.
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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
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 1/22on Mon. 12/28.) There is no announced date for reopening NYC non-detained at this time.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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
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
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
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
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
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)
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.
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.
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.
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.
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)
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)
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.
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)
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!
“Border Message” By Steve Sack Reproduced under licenseSo far, Biden, Garland, & Mayorkas appear to share this Trump/Miller view of the humanity of brown-skinned asylum seekers! (AP Photo/Julia Le Duc)
“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!
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.
. . . .
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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.
Judge Garland & Secretary Mayorkas continue to abuse asylum seekers at the Southern Border & in the U.S. Albrecht Dürer, Public Domain, via Wikimedia CommonsKevin Sieff Latin American Correspondent, Washington Post
MATAMOROS, Mexico — Carolina had memorized the date, but she triple-checked her documents just to make sure. For months, her life had revolved around the court hearing at which she could finally make her asylum claim.
Like tens of thousands of asylum seekers who reached the U.S. border during the Trump administration, the 36-year-old from Honduras had been sent to wait in Mexico for her immigration hearing. She was told to return to the border on her court date.
So on Feb. 26, 2020, she woke up early and put on her best blouse. She said a short prayer. But not long after her bus left for Laredo, Tex., gunmen stopped the vehicle. They kidnapped Carolina and her 15-year-old daughter, took them to a stash house packed with other kidnapped migrants and demanded thousands of dollars in ransom.
By the time they were released a few days later, Carolina had missed her day in court.
Her asylum case, it turned out, had been closed in absentia because she hadn’t shown up. Of the 68,000 asylum cases processed under the Trump-era Migrant Protection Protocols, the policy also know as “Remain in Mexico,” 28,000 were closed for the same reason: Because asylum seekers didn’t present themselves.
. . . .
“MPP deprived people of due process and fundamental fairness,” she said. “In order to restore access to asylum in a meaningful way, the Biden administration needs to reopen cases for people ordered removed under MPP and allow them to pursue their claims safely from within the United States.”
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Read Kevin’s full article at the link.
The last statement, from Haiyun Damon-Feng, the director of the Adelante Pro Bono Project and assistant director of the William H. Gates Public Service Law Program at the University of Washington School of Law, sums it up. It’s not rocket science! It’s basic “Con Law 101” with some common sense and human decency thrown in! It’s also an essential part of the Biden Administration fulfilling basic campaign promises! Folks like Damon-Feng are the ones who should be running this system, solving the problems, and reconstructing the legal asylum system!
In what kind of “court” system are kidnapped individuals, some of them minors and children, further penalized and the Government allowed to get away with not keeping accurate addresses of individuals in their process and of knowingly sending them into danger zones? The victims remain in limbo and suffering while the perpetrators of these illegal outages — both current and former government officials — have not been held accountable. This is a national disgrace compounded by the fact that neither Judge Garland nor Secretary Mayorkas have taken corrective actions. Nor have they cleaned out the deadwood from their own legally and morally bankrupt systems and put competent individuals in charge!
Qualified Immigration Judges and competent administrators at the DOJ and DHS could have started solving these problems beginning the day after the inauguration. That 100 days into the Biden Administration this system is still operating illegally and taking a human toll is both a betrayal of campaign promises and an abuse of humanity! It’s also horrible and clearly illegal policy!
How does an Administration that is actively engaged in “Dred Scottifying” people of color at the border and in their wholly owned Immigration “Courts” — actually modern day “Star Chambers” — have any “legitimate voice” on racial justice in America?
“Justice” Star Chamber Style
🇺🇸⚖️🗽Due Process Forever! Human lives matter! The Constitution matters! Asylum law matters!
Suzanne Monyak Senior Reporter, Immigration
Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration JudgesKnightess of the Round Table
Garland has yet to indicate whether he will rescind several decisions penned by attorneys general under the previous administration. In the last four years, Trump officials limited asylum eligibility for those fleeing violence by private actors, like gang members and domestic partners, and immigration judges’ ability to maintain their own dockets.
“There’s no reason that Attorney General Garland hasn’t done a thorough review of the attorney general certifications from the last administration,” said Susan Roy, a former immigration judge. “He should rescind any of them which he can. He has the authority to do that.”
. . . .
The Biden administration has also inherited a lengthy immigration court backlog — containing roughly 1.3 million cases — that have kept immigrants facing deportation and asylum-seekers waiting years for decisions in their cases.
The Biden administration has recognized that immigration judges may be key to processing these claims quickly and efficiently. In a preview of its budget request released earlier this month, the White House proposed increasing funding for the Justice Department’s immigration court agency from $734 million to $891 million to hire 100 new immigration judges.
Immigrant advocates and former judges say freeing the immigration court system from political influences is also critical to this effort.
“Without a union, there’s no way to protect judges against political ideologies of a given administration,” Roy said.
While judicial independence has “always been a concern” with a court system housed within a federal agency, “rarely has that been as problematic as it was under the Trump administration,” she said.
. . . .
Some advocates also want to see immigration courts be removed entirely from the DOJ and made an independent court system. The issue is on the agenda for the American Immigration Lawyers Association’s virtual “day of action” on April 22.
Roy, the incoming chair of AILA’s New Jersey chapter, acknowledged that Garland faces a number of competing priorities outside of the immigration courts. But she urged the administration against letting the system fall to the wayside.
“The immigration court is a subject that needs immediate attention,” she said. “Otherwise, it’s going to collapse under its own weight.”
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Thanks, Sue!
Today’s Immigration Courts, hotbeds of inefficiency, worst practices, racial bias, misogyny, and unnecessary backlogs, undermine everything that Biden and Harris campaigned on. They also make Judge Garland’s pledge to return justice and independenceto the Department of Justice look like a farce.
You simply can’t be responsible for something as totally broken, biased, and due process denying as the current Immigration Courts and have ANY shred of credibility on racial justice, independence, and “good government!”
“Eyore In Distress” “Why won’t Judge Garland help me get back on my feet? I”m so tired of being ‘belly up!’”“We were waiting for Judge Garland to free us from this chamber designed by Sessions, Miller, and Barr? Why is Garland diddling as we suffer and die?” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Judge Garland’s concept of “justice” for refugee women and people of color seems a little out of touch — anti-asylum, misogynistic, anti-due process, xenophobic, racially charged precedents remain in place; regressive, unqualified judges on the bench; “worst practices” continue to flourish; 1.3 million case backlog builds; & He hasn’t spoken to the naij:
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
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-004160He doesn’t look like Jeff “Gonzo Apocalypto” Sessions or “Billy the Bigot” Barr, but does he think like them? Or does he just not care about the lives of people of color at the border and in his Immigration “Courts” that aren’t “courts” at all by any Constitutional or rational standard? Has he ever studied “The St. Louis Incident?” He’s basically repeating it! Official White House Photo Public Realm
TRUTH IS UGLY — The Biden Administration’s concept of “racial justice” for brown-skinned asylum seekers at the border conflicts with their post-Chauvin-trial rhetoric. (AP Photo/Julia Le Duc)
From Human Rights First:
Yesterday, Human Rights First welcomed news of former police officer Derek Chauvin’s conviction for murdering George Floyd.
“Accountability is only a first step toward justice,” said President and CEO Michael Breen. “Bringing true justice demands something deeper – a reckoning on race in America that has been a long time coming and must continue until systemic racism is eliminated.”
Yesterday also saw the release of our new report, “Failure to Protect,” which outlines how the Biden administration’s expulsions are endangering the lives of asylum seekers and causing a new wave of family separation.
From welcoming refugees at the southern border to the withdrawing American troops from Afghanistan, we urged the Biden administration to put human rights first in policy and in action.
We also opened registration for our Spring Social, taking place on June 3.
REPORTING FROM THE SOUTHERN BORDER
Human Rights First, Haitian Bridge Alliance, and Al Otro Lado released a new report on Tuesday, “Failure to Protect,” on the Biden administration’s continued use of Title 42, the illegal Trump-era policy that endangers asylum seekers.
Despite his pledge to reverse former President Trump’s cruel approach to migration and the border, President Biden is continuing a policy that endangers children, drives family separation, and illegally expels asylum seekers to danger, including many Black & LGBTQ refugees who endure bias-motivated violence in Mexico.
Our report identifies at least 492 public and media reports of violent attacks since January 21, 2021 – including rape, kidnapping and assault – against people blocked from requesting asylum protection at the U.S.-Mexico border and/or expelled to Mexico.
To commemorate the Chauvin verdict, the Biden Administration decides to extend the abuse of migrants’ humanity and dehumanization of people of color at our borders:
Don’t kid yourself: Steven Miller’s cruel, scofflaw policies still “rule” at our borders. You don’t have to look very far for institutionalized racism in the Federal “justice” system.
With thousands of well-qualified experts from the NDPA out there, is THIS really the best way for the Biden Administration to recruit immigration/human rights advisers and Immigration Judges? It might, however, reach a more diverse audience than gobbledygook laden, short turnaround, “posts” on “ USA Jobs” that have created today’s non-diverse, regressive, non-expert Immigration Judiciary and the bloated, incompetent bureaucracy in Falls Church! PHOTO: Thomas Hawk Creative Commons Amateur Night
It’s difficult to believe that the president and his top officials did not realize their immigration policies, refugee admissions among them, would galvanize Republican opportunism and demagoguery. Perhaps they failed to anticipate the scale of unaccompanied Central American minors and families who would cross the border seeking asylum this spring. Maybe they are worried that GOP attacks, conflating that wave of asylum-seekers with refugees, would further imperil the Democratic congressional majorities in next year’s midterm elections, despite Mr. Biden’s own healthy standing in the polls.
. . . .
The president would do well to re-read his own campaign’s clear-eyed pronouncements on the subject. They correctly slammed Mr. Trump for decimating America’s decades-long leadership on refugees, whose admissions to this country were slashed by more than 75 percent in four years, to fewer than 12,000 in fiscal 2020. “We cannot mobilize other countries to meet their humanitarian obligations if we are not ourselves upholding our cherished democratic values and firmly rejecting Trump’s nativist rhetoric and actions,” said the Biden campaign statement on refugees.
While the administration bumbles its way toward a policy, real lives are at stake. Some 33,000 refugees in Africa, the Mideast and elsewhere, all of them having passed rigorous screening by the Department of Homeland Security and other agencies over the course of months or years, are stuck in camps where they await flights to the United States. They see this country as a beacon, just as Mr. Biden insisted it is.
It’s difficult to believe that the president and his top officials did not realize their immigration policies, refugee admissions among them, would galvanize Republican opportunism and demagoguery. Perhaps they failed to anticipate the scale of unaccompanied Central American minors and families who would cross the border seeking asylum this spring. Maybe they are worried that GOP attacks, conflating that wave of asylum-seekers with refugees, would further imperil the Democratic congressional majorities in next year’s midterm elections, despite Mr. Biden’s own healthy standing in the polls.
In any event, the president’s retreat on refugees is a danger sign. It looks like weakness; it smacks of spinelessness. Time will tell whether it is a short-term tactical maneuver or a more basic lack of resolve in the face of political headwinds. Here’s hoping it is the former.
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Read the complete editorial at the link.
Perhaps, Biden’s West Wing immigration advisers need a different “vision” of U.S. refugee policy. Perhaps, it’s time to end “Amateur Night at the Bijou” and bring in some human rights pros with the knowledge and guts to implement humane, effective, robust, legal refugee and asylum policies that serve humanity and advance our true national interests! PHOTO: independent.co.uk
Read the full op-ed, which actually recycles much that you’ve already heard on Courtside, at the link.
It “might be difficult to believe,” but you need look no further than the continuing worsening mess in Garland’s dysfunctional Immigration Courts, the failure to implement the rule of law at the border, the inability to get a robust refugee program up and running near the Northern Triangle, and the glaring lack of immigration/human rights expertise in the West Wing to see how unprepared “Team Biden” was to deal with inevitable, totally predictable, issues on which progressive Dem experts had been raising the alarm since before the election.
Incredibly, with hundreds, perhaps thousands, of progressive immigration/human rights/due process experts out here in the Dem camp, Biden has managed to surround himself with the wrong folks — those who can’t get the job done and prove it every day!
“Courage of their convictions” — that’s the problem here: Either his advisors don’t believe in the immigration, human rights, and justice agendas that Biden and Harris ran upon or they don’t have the guts to carry them out! Either way it’s a problem.
This is the same old, same old arrogant, uninformed “it’s only immigration not something important” attitude that has turned strength into weakness for Dems over the past decades! As Stephen Miller could testify, having the brainpower, expertise, courage, advocacy skills, energy, and persistence of the immigration/human rights community lined up in opposition isn’t conducive to implementing your agenda, whatever it might be.
Also, a pile of dead bodies beyond the border and continuing “Dred Scottification” of the other in dysfunctional, disgraceful “captive courts” might squeak by in the “present tense,” but will be an unflattering historical legacy that in the long run will outweigh all the achievements.
Turning supporters into critics, abandoning your values and promises, ginning up court suits opposing your out of control, due process destroying “courts,” and scofflaw asylum policies — some of them right out of the Stephen’s Miller playbook — seems like a bad way to proceed for any politician, let alone ones as experienced and skilled as Joe Biden & Kamala Harris.
Recognizing when the “honeymoon is over” and you need folks on your team who can actually turn campaign promises into real-world action is critical.
So far, the “Amateur Night @ the Bijou” approach to immigration, human rights, due process, and racial justice, predictably, isn’t getting the job done. The Biden Team needs to either turn to the experts, or face the real prospect of four years of continuing failure — along with the dead bodies, ruined human lives, and sense of continuing betrayal by gutless politicos that go with it.
Due Process Forever! Not “rocket science,” 🚀 but “mission impossible” without bringing in the pros!
Five months after the election and five weeks after his swearing-in as AG, Judge Garland’s EOIR is worse than ever! And, he has nobody at the DOJ or in Falls Church with the expertise and progressive outlook to fix the mess! If you don’t want to deal with this for the next four years, then it’s time to demand courageous, positive, progressive, due-process, human rights, racial justice oriented change! We voted to end the “clown show,” but it’s still operating as if the election never took place! PHOTO: Thomas Hawk Creative Commons
Fed up with “Garland’s Clown Show🤡” @ Justice?
Tell your legislators that you want Article I NOW — with a “short grandfather” and merit-based re-competition of all judicial jobs!
Stop the threat to America’s future emanating from our dysfunctional, biased, anti-immigrant, anti-asylum, anti-due-process, misogynistic Immigration “Courts” still operating under Judge Garland, as designed and staffed by Stephen Miller, Jeff “Gonzo Apocalypto” Sessions, and “Billy the Bigot” Barr to degrade humanity and mock the Constitution!
Courageous, deserving, vulnerable folks like “Ms A-B-“ are still unnecessarily suffering injustice from Garland’s broken system! In fact, because Garland won’t stand up for the legal and due process rights of asylum seekers at our borders, if Ms. A-B- arrived today she would be back in El Salvador tomorrow facing torture, rape, and death after receiving no process whatsoever, let alone due process! NONE! No legal process from a Government supposedly committed to humanity and the rule of law!
Is this what President Biden meant when he pledged to undo the cruelty, racism, and scofflaw abuse of refugees and asylum seekers meted out by Trump, Miller, Wolf, Barr, and Cooch Cooch? If not, why are lives still being lost and futures ruined by this totally outrageous and completely unwarranted behavior? It’s a TODAY issue, not a problem to be shoved over until tomorrow!
Thankfully, he’s gone, but he left plenty of his friends @ EOIR. Judge Garland might be enjoying his “Continuing Clown Show.” But, the human beings whose rights and humanity are degraded daily and their long-suffering lawyers, not so much! (Officially titled “Ass Clown”) Artist: Scott Scheidly Orlando, FL Reproduced by permission
WASHINGTON — An immigration judge in the San Francisco court abruptly quit his post this week, issuing a scathing letter upon his retirement expressing frustration with the entire court system and its U.S. Justice Department management.
The letter does not acknowledge that Judge Nicholas Ford himself was also the subject of criticism from local attorneys representing immigrants, many of whom banded together to file a formal complaint against him alleging hostile and biased treatment of their clients with the Justice Department last year.
In his departure letter addressed to “wonderful” colleagues in the San Francisco immigration court, a copy of which was obtained by The Chronicle, Ford said he had “profound” frustration with Justice Department court managers. Ford said his supervisors were “a fearful community whose primary interest has never been the growth of those they oversee but rather their own continued employment.”
Ford, a former criminal court judge in Cook County, Ill., said he wanted to issue a “warning” to other immigration judges.
“I am an older judge and it is hard to understand how any court system can function like this,” Ford wrote. “These managers I have spoken of from the director to those in management below her will not support you. As we used to say in Chicago ‘they will throw you under the bus in a minute.’ Stay on your toes and view skeptically anything they tell you.”
Ford did not immediately respond to a voice mail seeking comment.
Ford was named to the immigration court bench in 2019 by then-Attorney General William Barr, after a controversial tenure in Chicago during which he was criticized for jailing a pregnant woman without bail for a nonviolent crime and had a high number of rulings overturned by appellate courts, according to a justice watchdog group.
In San Francisco’s immigration court, the criticism from private attorneys continued. In a complaint filed by more than a dozen law firms and legal organizations that represent immigrants, including the local chapter of the National Lawyers Guild, attorneys said Ford regularly acted in an “aggressive, unprofessional and demeaning” manner toward immigrants and displayed shocking in-court behavior.
. . . . .
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Tal Kopan Washington Reporter, SF Chronicle
Read the rest of Tal’s article at the link.
The problems are well-documented;
The need for reform is immediate;
The solutions are obvious;
The expert progressive talent to shake up this system and get it back on track to due process and fundamental fairness is readily available!
So, what’s missing: Progressive leadership, recognition, engagement, and action from Judge Garland!
The Biden Administration continues at their peril to demean, dismiss, and disrespect progressive immigration experts, their supporters, and the human lives at stake! It’s incredibly stupid! But, sadly, not unprecedented in Dem Administrations. That explains a lot about how we got to the current unacceptable situation.
Outside the West Wing, the legal community is aghast at Judge Garland’s failure to address the ongoing, deadly, debilitating, mess @ EOIR! And, although reform is achievable, it’s “mission impossible” with the folks currently on Garland’s staff and @ EOIR HQ.
Oh, and did I mention that Garland’s EOIR is sitting on a largely self-created 1.3 million (known) case backlog? Even if no new cases were put in the system, they wouldn’t get done with the existing cases by the end of Joe Biden’s first term in 2025! And, that’s without counting the cases that inevitably are completely “off docket” — lost in EOIR’s sea of technical and management incompetence.
Still, no sense of urgency and recognition whatsoever from Judge G! Why “study and muse” about what dozens, perhaps hundreds, of experts have already told you how to fix — some many times over?
Judge, those of us who who have been dealing with this disgraceful, dysfunctional system for years know what the problems are and how to fix them. What we need from you is intelligent, decisive, progressive, due-process-focused action, not more “dithering and studying!” You can’t and won’t get the job done with the current staff at DOJ and the clowns at Falls Church!
Heck, they just mindlessly “pissed off” every “stakeholder” in the country with yet another inane, “top-down,” “your views don’t count,” unworkable, detached from reality, “policy memo” and a series of disastrous (that’s one of the more “printable” adjectives I heard) “Town Halls!” What other “court system” in America spends time and resources on nonsense like this? The clowns might be Sessions-Barr-Miller holdovers. But, they are performing in YOUR NAME, Your Honor. And, let me give you a clue: It’s not going over well with the audience!
Judges Dana Marks, Amiena Khan, Noel Brennan, Janette Allen, Dorothy Harbeck, Mimi Tsankov, Samuel Cole, and other progressive jurists like them, with courage and executive ability, are ready to take over the Falls Church Tower, on an immediate temporary basis, start fixing the problems, and restoring due process, fundamental fairness, sound leadership, and best practices at our now-dysfunctional U.S. Immigration Courts. The NAIJ are the only folks at EOIR conducting competent professional training emphasizing due process and best practices. They are actually solving problems, but EOIR HQ is creating new ones!
The forces of due process and competence @ EOIR are just waiting for the call from Judge Garland. Will it come before it’s too late for him and for America?
“Through teamwork and innovation, become the world’s best tribunals guaranteeing fairness and due process for all.” Not, “rocket science,” 🚀 by a long shot. So, why does it continue to elude Judge Garland?
TIJUANA—In the weeks after Joe Biden’s inauguration, migrants across the city of Tijuana began to leave the various shelters and apartments where they’d been living in favor of an open-air encampment just north of the city’s center. It’s not a cheerful place; people have little to eat and there’s no running water. But it has a crucial location: It’s right next to the El Chaparral Port of Entry, the nearest legal crossing into the United States. Anticipating that the doors to the U.S. might soon open, they set up at the very foot of the country’s entrance.
In February, Rosemeri, an asylum seeker from El Salvador, says she pitched a tarp next to just two others. By early March, it had grown into a shantytown of more than 1,000 people, and today as many as 2,000 migrants — most of them families with children — brave the elements each day and night. Together, the makeshift community decided on a name for the tent city: La Esperanza, The Hope.
Rosemeri, like most people in the camp, is not a new arrival to Tijuana. She left her home in El Salvador in 2019, fleeing threats against her life from the gang that controls her neighborhood. Her plan was to request asylum in the U.S. But by the time she arrived at the southern border last April, a month into the Covid pandemic, it had been closed indefinitely to asylum seekers by a Trump administration public health order. Since then, she and tens of thousands of others have had no choice but to wait in northern Mexico, shuffling from shelter to shelter for months, hoping for a change in policy.
“We are Salvadorans, Hondurans, Haitians, Cubans, Mexicans, Nicaraguans,” she told me of the residents of La Esperanza. “We are here, all of us, waiting.”
The early months of Biden’s administration have been shadowed by a major increase in immigration, with border agents encountering more than 100,000 people attempting to cross unauthorized in February and more than 170,000 in March, a 15-year high. Critics on the right blame the president’s welcoming rhetoric, saying that after Donald Trump’s hard-line tack toward the border, it’s no wonder migrants are rushing in under supposedly softer leadership. But migrants themselves have a very different view: The issue isn’t Biden extending a hand; it’s that he hasn’t figured out what he wants to do — and has kept the legal pathway closed in the meantime.
Despite promising a new approach, Biden has left the effective asylum ban in place, with few exceptions. Realizing they have no prospect for legal entry into the U.S. anytime soon, many migrants like the ones here, stuck in Tijuana without a safe home to return to, are making the painful decision to try to cross the border outside the proper channels.
“We want to do this the right way,” insists Rosemeri.
The problem for people like her is that there is currently no “right way.” The Biden administration says this is all a work in progress. “We’re in the middle of a global pandemic, and it’s going to take time to rebuild robust asylum processing infrastructure at our borders,” an administration spokesperson told me in an interview last month. The White House did not respond to specific questions for this story.
Republicans in Washington have been saying Biden is too lenient, but people on the ground in Mexico suggest the root of the recent rise in unauthorized border crossings is actually the president’s prolonged maintenance of the most restrictive of his predecessor’s policies: the near-complete cutting off of asylum, a form of legal immigration.
. . . .
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Read Jack’s much longer full article at the link. It’s one of the few accurate, insightful pieces of reporting I’ve seen on the “overhyped yet generally mis-understood” human catastrophe at continuing to unfold at our southern border.
The problem starts, but by no means ends, with Judge Garland’s mind-boggling failure to grasp and take steps to end the deadly clown show @ EOIR! You can’t re-establish the rule of law and enforce the Constitution with inept holdover bureaucrats and unqualified Trump-Miller appellate judges in charge of the critical “retail level” of the American justice system!
Get some real, expert judges, competent judicial administrators, and fearless legal leadership, dedicated to human rights, fundamental fairness, and due process for all, into key positions @ EOIR before this system gets any further out of control, creates additional disorder throughout our legal system, and destroys more human lives!
The folks who can start fixing this are out there. Some of them (sitting Immigration Judges like Judge Dana Leigh Marks, Judge Amiena Khan, Judge Noel Brennan, Judge, Janette Allen, Judge Dorothy Harbeck, Judge Mimi Tsankov, and others) are even on the payroll outside the DC area. Many others in the private sector should already have been vetted and on the job solving problems, at least on a temporary basis!
(Let’s start, but not end, “Project Restore Due Process & Asylum Integrity,” with, say, Dean Kevin Johnson, Associate Dean Jaya Ramji-Nogales, Professor Karen Musalo, Michelle Mendez, Professor Ingrid Eagly, Marielena Hincappie, Lauren Wyatt, Professor Phil Schrag, Professor Andy Schoenholtz, Heidi Altman, Professor Debbie Anker, Judge (Ret.) Ilyce Shugall, Judge (Ret.) Rebecca Jamil, Professor Michele Pistone, Claudia Valenzuela, Claudia Cubas, Professor Jill Family, Professor Raquel Aldana, Professor Mary Holper, Liz Gibson, Greg Chen, Professor Peter Moskowitz, Laura Lynch, Dree Collopy, Professor David Baluarte, Professor Maureen Sweeney, Professor Lenni Benson, Eleanor Acer, Adina Appelbaum, Professor Elora Mukherjee, Professor Erin Barbato, Aaron Reichlin-Melnick, Jason “The Asylumist” Dzubow, Professor Alberto Benitez, Professor Paulina Vera, Professor Cori Alonso Yoder, Professor Kari Hong, Professor Denise Gilman, Tess Hellgren, Simon Sandoval-Moshenberg, Professor Laurie Ball Cooper, Associate Dean Jayesh Rashod, Ben Winograd, Associate Dean David Baluarte, and work from there! All of them are head, shoulders, knees, and toes above the current EOIR senior management and Appellate Judges on the BIA.)
Recently, I made these points in speaking to a group of retired lawyers who had no prior background in immigration law. At the end, one of them said: “The fix you described doesn’t sound that difficult. Why hasn’t it happened?” BINGO!
It’s not rocket science! But apparently “above the pay grade” for “Team Biden!”That’s a shame for American justice, any international leadership capability we might still have on this issue, and, most of all, for the vulnerable human beings that Biden, Mayorkas, and Garland have left “twisting in the wind.”
The Biden/Garland Image of Legal Asylum Seekers & Their Supporters” “Twisted by the Wind” By Ron Strathdee
I can assure the Biden folks that continuing the Trump/Miller policies and leaving their “plants and toadies” in place won’t win a single GOP vote — on anything! Truth, facts, the law, and human decency play no role in today’s GOP. You could shoot everyone dead at the border (as opposed to sending them back to Mexico and the Northern Triangle to die) and magamorons like Cruz, Hawley, and Cotton will still claim that you have an “open borders policy.”
However, your lack of positive action on asylum and refugee issues will continue to anger and betray your own supporters and mobilize them to oppose your “tone-deaf” and ineffectual policies, in court, in the media, and in politics. Doesn’t sound like a smart move to me!
Here’s the real irony. Liberal House Dems have invested in a DOA legislative effort (already “shot down” by Speaker Pelosi) to expand the Supremes. Meanwhile, over at the DOJ,Judge Garland is squandering his chance to completely rebuild and refocus the nearly 600 strong (now totally dysfunctional) Immigration Judiciary into something really special (in a good, rather than an evil, way).
That happens to be the most powerful and readily achievable way of creating a progressive, due process oriented, intellectually dominant, expert “model judiciary” that will remake the “retail level” of American justice, save human lives, advance correct practical, sensible applications of the law and the Constitution that will actually save lives, teach “best practices,” promote racial justice, and change the face of American justice for the better.
Better judges for a better America! It starts with the foundational “retail level” of our justice system — the Immigration Courts. Unlike packing the Supremes, it’s realistically achievable with courageous focused leadership (not the current failed group and indifferent leadership from Judge Garland.)
“Personnel is policy” — big time! Too bad for all of us that Judge Garland doesn’t seem to “get it.”
In that, his “grasp of the obvious” seems to be several levels below that of Trump, Miller, the Federalist Society, the Heritage Foundation, and Mitch McConnell. Think what you might, that gang has run circles around Dem politicos for years. Jeff “Gonzo Apocalypto” Sessions and Billy Barr “got” the importance of expanding the BIA and the Immigration Judiciary and “packing” them with many unqualified anti-asylum restrictionists who would do their bidding in undermining and destroying American justice and “Dred Scottifying” the “other,” particularly those of color, with a solid dose of mind-numbing misogyny thrown in.
To date, (with a few exceptions, like removing former Director James McHenry) Garland has failed to remove or transfer these unqualified jurists (and incompetent administrators) and start bringing in better ones, even though he has the available tools to have commenced by now. Indeed, several Miller cronies are still wandering around the Falls Church Tower in key positions, while other members of the Trump Administration’s “Asylum Denial Club” continue to crank out nativist injustice at the BIA. A number are notorious for their overtly hostile attitudes toward female asylum seekers of color and their attorneys. Yet, asylum seekers and their lawyers continue to suffer unjust and unprofessional treatment at EOIR while their abusers continue unabated in Garland’s name!
Aggressively “removing the deadwood” also sends strong messages throughout the system that the “dehumanize, deny, and deport culture” ingrained and actively encouraged at EOIR over the past four year is over!
Meanwhile, over at the broken SG’s Office, Garland is getting ready to defend one of the stupidest, most legally inane, and insanely counterproductive from a policy standpoint positions in recent memory (and that’s saying something given the performance of the Trump SG) in Sanchez v. Mayorkas . The Garland DOJ is actually committing “unforced error” by defending a clearly wrong interpretation of the TPS statute that will unnecessarily screw long-time law-abiding TPS holders, many of them spouses of U.S. citizens, who could otherwise qualify for legal immigration under current law. Shafting the VERY INDIVIDUALS the Biden Administration pledged to help and keeping them in “eternal legal limbo” while unnecessarily outraging their lawyers and potential allies. What sense does that make? If “Team Garland” can’t recognize and pick the “low hanging fruit” in the battle to restore legality and sanity to our immigration system, it’s going to be a long four years.
Professor David Martin, one of the top minds in American law, in any field, and a “vet” of past Dem Administrations, laid out the possible solutions in a crystal clear manner in Just Security. But, apparently when you’re caught up in running “Amateur Night at the Bijou” you can’t be bothered to listen to the experts who have “been there before” and learned from their experiences!
Judge Garland is recruiting folks for his SG’s Office who will continue to make the same wrong-headed arguments on immigration cases that the past two Administrations did. No Immigration or human rights expertise necessary. Check your common sense and humanity at the door. PHOTO: Thomas Hawk Creative Commons
This could be our “last clear chance” to save American democracy! Right now, it’s going to waste! That’s something that should outrage and motivate all of us who believe that “due process for all persons” means exactly what it says!
Asked repeatedly (by me and others) what accounts for Biden’s delay, White House officials have struggled to answer. Sometimes they try to blame Trump, complaining that his administration left a system in “disrepair” that requires “rebuilding.” No doubt, Trump wrought a lot of damage upon the immigration system, and more resources would be necessary to reach the much higher refugee admissions that Biden claims he wants for the next fiscal year (125,000); currently, there aren’t enough people sufficiently far along in the refugee-screening pipeline to meet that goal.
But none of this explains why the few thousand already fully vetted and deemed “travel-ready” by the State Department as of early March have not been allowed in. The only thing preventing their entry is Biden — who refuses to do the right thing and sign a simple document.
The only explanation I can fathom for what’s going on is that the White House fears ordinary Americans will confuse the refugee resettlement system with the surge of migrants at the southern border. “Refugees” and “asylum seekers” might sound synonymous, but the groups are subject to different sets of laws, screening procedures and executive authorities. One key difference is that refugees apply from abroad and are screened for eligibility before they arrive; asylum seekers apply from within our borders or at a port of entry.
In other words, refugees are doing precisely what both Biden and Republicans urge those fleeing persecution and violence to do: staying abroad, and not crossing into the United States unlawfully; proving to U.S. and international officials that their lives are indeed in danger, and that they meet the legal requirements for resettlement; enduring extensive screening to prove they don’t threaten national security or public health; and then patiently waiting their turn for admission, a process that usually takes years.
And how is Biden rewarding them? The same way Trump did: by slamming the door.
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Read Catherine’s complete article at the link.
[The Biden Administration] fears ordinary Americans will confuse the refugee resettlement system with the surge of migrants at the southern border.
Wow. In 50 years of “hanging around” the migration/human rights/political scene in D.C., I’ve heard plenty of insanely lame, cowardly excuses for not doing the right thing. But, this is “Top Five” material!
I have ideas on how to solve this problem, quickly:
Invest the “big bucks” to hire Catherine as the Biden Administration’s “Head Immigration Flackie.” She can explain the situation in terms that the American people will understand. That’s what Catherine does! Brings clarity, humanity, and common sense to complicated situations that flummox politicos and press offices.
Alternatively, get a “Loaner Law Student” from the Georgetown Law CALS Asylum Clinic. In two decades of working with CALS students in court, the classroom, and elsewhere, I’ve never run into one who doesn’t have a deeper understanding of, and better ability to explain, refugee and asylum policy than any of the “inept talking heads” the Biden Administration has thrown into the fray so far.
Georgetown Law
Another alternative: Hire Don Kerwin, currently the Executive Director of the Center for Migration Studies (“CMS”) to fix and explain the Administration’s (so far) mind-boggling failure to re-establish our refugee and asylum programs — actually both legal and moral obligations (although you wouldn’t know that by listening to the mindless negative natter from politicos of both parties). Don probably knows more than any living person about the amazing, quantifiable, benefits that refugees and asylees bring to our nation and is an expert at puncturing all of the White Nationalist myths and fear-mongering that have driven these essential programs into complete failure over the past few years.
Donald M. Kerwin Executive Director Center for Migration Studies
It’s also worthy of note that because of the Trump Administration’s “malicious incompetence” combined with the Biden Administration’s “willful incompetence,” against the background of an Attorney General unwilling to speak out and stand up for the legal rights of refugees, asylum seekers, and people of color in general, (just what is the purpose of an Attorney General who won’t stand up for the people — some of us thought, erroneously I guess, that we had voted that “model” out of office last November) we have no refugee program in Latin America and we have illegally closed ports of entry to legal asylum seekers.
So there is no regular system for asylum seekers to apply in an orderly fashion in accordance with our international, statutory, and Constitutional (not to mention moral) obligations. In violation of the mandatory provisions of Article 33 of the U.N. Convention, incorporated by the Refugee Act of 1980, every day we return legitimate refugees to danger, torture, or death without any inquiry at all. The “law violators” here aren’t the desperate folks vainly, yet gamely, trying to apply for asylum under our lawless system. It’s us!
Maybe, that’s why the Biden Administration doesn’t want anyone to understand what they really are doing and how wrong-headed it is!🤮👎🏴☠️
“Oh no! Is Judge Garland really going to leave me in this position for the next four years?”
COURTSIDE EXCLUSIVE! — A FIRST, DISTURBING LOOK INSIDE “JUDGE GARLAND’S FAILED EOIR” –SOURCES CLAIM JUDGE’S APPROACH TO DUE PROCESS @ EOIR TIMID, INEFFECTIVE 🤮☠️ — HEARD IT THROUGH THE GRAPEVINE 🍇 – Judge Apparently Dissing Calls By Experts, Advocates For Bold, Common Sense Actions To Restore Due Process, & Promote Judicial Independence @ EOIR — Appears Ready To Allow Miller‘s White Nationalist “Plants,” Go Along To Get Along Judges, To Continue Mocking Due Process @ Dysfunctional Courts – Will Ex-Federal Judge Become Latest In Line Of Failed Dem AGs To Allow Institutionalized Racism, Misogyny, Anti-Asylum Attitudes, Mistreatment Of Migrants, & Administrative Chaos To Flourish In America’s Worst “Courts?”
By Paul Wickham Schmidt
Courtside Exclusive
April 9, 2021
Although the information is unverified, and the sources anonymous, Courtside has pieced together an emerging disturbing picture of Judge Garland’s “master plan” to make only cosmetic changes and allow the continued mistreatment of asylum seekers and unprofessional performance of many so-called “judges” in his Immigration Courts, generally known as America’s worst and most dysfunctional tribunals where life threatening institutionalized White Nationalism, sloppy work product, and lack of human rights expertise have become the order of the day.
As we know, DOJ quickly reassigned the former EOIR Director, James McHenry, notorious for “leading” the courts into total failure in pursuit of a White Nationalist political agenda. Apparently, the head of Administration and the “IT honcho” were also forced out at “The Tower.” Presumably, this has to do with EOIR’s remarkable two-decade failure to implement anything approaching a functional nationwide e-filing system.
That’s the “good news.” But, reportedly Judge Garland has little intention of removing the BIA Chairman or the Deputy Director. Sources say that unqualified (never served as a judge) Chief Immigration Judge Tracy Short, who was sent over from DHS Enforcement by the Trump folks, could be on thin ice. But, some in the know point out that he has the least authority to influence anything because he doesn’t actually adjudicate cases and must get approval from “on high” for any further policy changes.
The Deputy Director, Carl C. Risch, whom I’ve reported on before, was a Trump political appointee who “burrowed in” right at the end. According to sources Risch, a “bureaucratic refugee” from the State Department (the only kind of “refugee” recognized by the Trump regime) was mostly interested in finding a “soft landing on the public dole,” and not many people have paid attention to him.
The BIA Chair, David Wetmore, was a confidante of neo-Nazi White Nationalist Stephen Miller at the White House before he became an advisor to the Deputy A.G. and then the Chair. Reportedly, his appointment was driven by Miller and other senior Trump people.
Potentially, in a competent system, the BIA Chair (Chief Appellate Judge) would be one of the most powerful and influential Federal Judges in America, short of the Supremes. Wetmore has supposedly politicized everything. Some say that with his “probationary period” expiring next month, he’s just trying to “hang on.”
DOJ leadership, therefore, could and certainly should remove him in his probationary period with no repercussions. However, Dem incompetence at EOIR and elsewhere in DOJ is legendary when it comes to making such bold personnel moves that, by contrast, are the “bread and butter” of the process by which GOP Administrations seize control of the bureaucracy for their political aims. Dem Administrations all to often appear more than happy to leave GOP “plants, burrowers, and holdovers” in key positions while leaving human rights experts and their own supporters “out in the cold.”
There are also rumors that DOJ has prepared a “100-page plan” for EOIR. That, in of itself, is both interesting and disturbing in light of the glaring absence of any known immigration/human rights expert with intimate knowledge of the dysfunction at the Immigration Courts and how to fix it at DOJ Headquarters downtown. As I’ve mentioned before, the few “DOJ insiders” qualified to lead such a project are some field Immigration Judges, most associated with the NAIJ.
Reportedly, “the plan” has some “good stuff” including free counsel for unaccompanied children. But it doesn’t call for what’s really needed — independent courts!
Nor is it apparent that the Garland team intends to treat the Immigration Courts as “real courts” and to appoint the qualified, diverse, expert judiciary necessary to end institutionalized racism and “Dred Scottification” in the American justice system.
This is likely to leave many of those talented and dedicated lawyers who led the defense against the degradation and dehumanization of women and people of color in the Immigration Courts over the past four years fuming! I’ve said it before, it’s a strange way for a supposedly progressive Administration to treat those who should be their staunchest allies with the potential to solve problems others can’t!
Judge Garland appears determined to repeat the deadly mistakes of past Dem Administrations by leaving the best, most powerful, and most achievable opportunity for reforming the Federal Judiciary on the table yet again. He will also neuter and discredit his plans for equal justice and racial justice before even getting them out of the box.
Some report that advocacy groups might temper their calls for judicial independence and a better qualified judiciary at EOIR to avoid criticizing the new Administration. Sadly, that would also be a huge mistake, repeating past catastrophic failures!
I’ve seldom heard or witnessed a bigger “crock” than “revolution by evolution.” Revolution comes from kicking tail, taking names, and bold aggressive due process enhancing actions. For Pete’s sake, Miller and Sessions understood the power of decisive action! Are they really that much smarter and more motivated than the Dems? Sadly, it appears so!
Last time, I watched from the “inside” as the Obama Administration left the immigration advocacy/human rights community “standing at the station” while the train pulled out, with mostly the wrong engineers at the controls. It was painful. It might be even more painful watching it happen again, despite all the warnings from those of us in the NDPA!
If an independent EOIR is ever going to happen it must be now! By the end of this year, it likely will be too late. The cost in human lives, frustration, and squandered potential for a better America and a better world will be incalculable.
Unhappily, those of us who had hoped to litigate and criticize less and help more appear destined for another four years of fighting an intransigent and tone-deaf Administration from the outside.
My three recommendations:
1) Those working on Article I better “get cracking,” because Judge Garland doesn’t appear to be interested in meaningful fixes at EOIR.
2) The human rights community had better reload and redeploy the “litigation artillery.” Because it looks to me like the only way of getting the Garland DOJ to address the festering problems undermining justice in America will be by beating them in court, over and over, until their “star chambers” finally collapse in total chaos.
3) Keep documenting the “lack of justice at Justice” — make sure that Judge Garland and his team “own” their failure to take seriously immigrant justice in the Immigration Courts and their disrespect for human rights experts who should be running and staffing our Immigration Courts!
Sure, it’s all anonymous and unverifiable. But, it sounds eerily similar to the arrogant incompetence with which the Obama Administration failed to institute achievable reforms in the Immigration Court system. So, I give it credence.
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever!
“Oh, goody! I hear Judge Garland is going to keep me at EOIR! I can’t wait to tell my buddy Gauleiter Miller that the slaughter of innocents will continue!” Image: Hernan Fednan, Creative Commons License
Is this Judge Merrick Garland’s Vision Of Justice For Refugee Women @ EOIR? If not, what’s he doing about it? Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsJamie Gorelick American Lawyer & Public Servant PHOTO: Creative CommonsLayli Miller-Muro Founder & Executive Director, Tahirih Justice Center PHOTO: Creative Commons
Jamie Gorelick is a partner at Wilmer Hale. Layli Miller-Muro is founder and CEO of the Tahirih Justice Center, a nonprofit that serves immigrant survivors of gender-based violence. Both were involved in Fauziya Kassindja’s asylum case in 1996: Gorelick was deputy attorney general during the Clinton administration and Miller-Muro was Kassindja’s student legal counsel, representing her in immigration court and at the Board of Immigration Appeals.
With the issue of migration in the news again, a glaring omission in U.S. asylum law should get more attention: The statute does not name gender as a possible ground for protection.
To be granted asylum in the United States, an applicant must be facing persecution by their government or someone that government cannot or will not control. The applicant must show that the persecution is on account of race, religion, nationality, political opinion or membership in “a particular social group.” Persecution on account of gender is not included.
This makes sense when considering that the global treaty that obliges state parties to protect refugees was adopted 70 years ago, in 1951, when the legal rights of women were barely recognized. The treaty — called the Refugee Convention — says that countries have an obligation to protect those who have no choice but to flee or risk death in the face of injustice.
It is unsurprising that the needs of women facing persecution were not considered in 1951. It is also not surprising — though it is disappointing — that Congress wrote this outdated framework into the Refugee Act of 1980.
In the mid-1990s, some light was shined on this problem. Fauziya Kassindja, a 17-year-old from Togo, sought protection both from forced polygamous marriage to a much older man and from female genital mutilation. She was granted asylum after proving that she was a member of a “particular social group” — and thus covered by the Refugee Act. We were both involved in this case, which helped to crack open the door for women to argue that gender-based asylum claims should be granted under the “particular social group” category in the statute.
But progress for women has been slow and painful under a statute that does not explicitly recognize gender-based persecution. It took 14 years for the United States to grant asylum to a Guatemalan woman, Rodi Alvarado, who endured unspeakable brutalization by her husband, a former soldier. Regulations proffered by then-Attorney General Janet Reno in 2000 to protect women under the social-group category were never finalized, leaving women in the lurch. So much variance exists in the likelihood of success from court to court that filing a claim can feel like playing Russian roulette.
. . . .
This situation has been made much worse in recent years. Under Attorney General Jeff Sessions, decades of progress were nearly wiped out by the stroke of a pen. Because the highest immigration court is part of the Justice Department, he was able to single-handedly reverse key legal precedents favorable to women’s claims and issue guidance to judges limiting gender-based asylum. As a result of these changes, the safety of many immigrant women hangs by a thread. The Refugee Act urgently needs to be changed to clearly protect women who would otherwise meet the stringent requirements for asylum.
. . . .
***************************
Read the full op-ed at the link.
The Rest of the Story
I wrote the decision granting asylum in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996). Jamie Gorelick was the Deputy Attorney General during part of my tenure (1995-2001) as Chair of the BIA. Layli Miller-Muro worked for me as a BIA Attorney-Advisor for a time.
Following Kasinga, some of my colleagues and I put our careers on the line to vindicate the statutory, constitutional, and human rights of refugee women who suffered egregious persecution in the form of domestic violence. One of those cases was Rodi Alvarado (a/k/a “Ms. R-A-“), where we dissented from our majority colleagues’ misguided denial of protection to her following grotesque, clearly gender-based persecution. Matter of R-A-, 22 I&N Dec. 906, 928 (BIA 1999) (Guendelsberger,Board Member, dissenting with Schmidt, Chair, Villageliu, Rosenberg, and Moscato, Board Members). Alvarado had properly been granted asylum by an Immigration Judge, building on Kasinga, before being unjustly stripped of protection by the majority of our colleagues.
The incorrect decision in R-A- was vacated by Attorney General Reno. Finally, after a 14-year struggle, Ms. Alvarado was granted asylum in an unpublished, unappealed decision based largely on the rationale of the dissenters. In the meantime, the “gang of four” dissenters (minus Moscato) had been exiled from the BIA by Attorney General John Ashcroft, assisted by his sidekick, Kris Kobach (the infamous “Ashcroft Purge” @ the BIA).
In 2014, in Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the BIA finally recognized domestic violence based on gender as a form of persecution. They did so without acknowledging the pioneering work of the R-A- dissenters 15 years earlier. By this time, domestic violence as a basis for asylum had become so well established that it wasn’t even contested by the DHS (although, curiously, the case was remanded by the BIA for additional findings on issues that were beyond reasonable dispute)!
In the meantime, at the Arlington Immigration Court, my colleagues and I had consistently granted domestic violence asylum cases based on a DHS policy position known as the “Martin Memo,” after former INS General Counsel and later DHS Deputy General Counsel Professor David Martin (who, incidentally, argued the Kasinga case before the BIA in 1996 — famous gender-based asylum expert Professor Karen Musalo argued for Kasinga). Most of those grants were unappealed by DHS. Indeed, many were so compelling and well documented that DHS joined Respondents’ counsel in moving for asylum grants following brief testimony. These cases actually became staples on my “short docket,” promoting efficiency, fairness, and becoming one of the few “working parts” of the Immigration Courts.
Tahirih Justice Center, founded by, Layli Miller-Muro, was counsel in some of these cases and served as an essential resource and inspiration for attorneys preparing domestic violence cases. It also functioned as a training center for some of the “new all-stars” of the New Due Process Army. For a time, the progress in recognizing, documenting, and vindicating the rights and humanity of female asylum seekers, at least in the Arlington Immigration Court, was one of the few shining examples of the courts, DHS, and the private/NGO bar working cooperatively to improve the quality and efficiency of justice in Immigration Court. It should have been a model for all other courts!
Sadly, in 2018, Attorney General Jeff “Gonzo Apocalypto” Sessions, unilaterally intervened and undid two decades of progress for women refugees of color with his grossly incorrect and disingenuous decision in Matter of A-B-, 27 I&N Dec. 316 (BIA 2018), overruling Matter of A-R-C-G- on completely specious grounds while intentionally misconstruing the facts of record. Significantly, Sessions’s intervention was over the objection of DHS, which had expressed continuing agreement with the A-R-C-G- framework for deciding domestic violence cases.
“Hanging by a thread,” as stated by the op-ed, unfortunately vastly understates the war on the legal rights and humanity of asylum-seeking women, particularly targeting women at color, being carried out at EOIR today. This effort is led by a BIA that has long since lost its way, basically “weaponizing” the legal distortions and vicious, openly misogynist dicta set forth by Sessions in Matter of A-B- to dehumanize, degrade, and deport vulnerable refugee women.
In numerous cases, the BIA actually intervenes at ICE’s request to reverse proper grants by courageous and scholarly Immigration Judges below. It’s all about churning out final orders of removal as a deterrent –a vile, disgusting, perverted “philosophy” advanced by Sessions, Barr, and Whitaker, and not yet effectively rejected by Judge Garland.
Judge Merrick B. Garland Official White House Photo Public Realm
Judge Garland is in the job because he is not only an experienced DOJ senior executive, but a long-serving Federal Judge who was admired for his sense of justice. It shouldn’t take an army of “spear-carriers” and subordinates for a true leader of Judge Garland’s experience to seize control of the situation and start getting the “ship of justice” sailing in the right direction. Judge Garland’s political and bureaucratic travails are of no moment to, and pale in comparison with, the additional, unconscionable abuse and “Dred Scottification” being heaped on refugee women and their courageous representatives by his dysfunctional and unconstitutional “star chamber courts.”
“Refugee women get ‘special treatment’ in accordance with the ‘traditional values’ applied to their cases in Judge Garland’s Immigration Courts!”
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-004160Woman 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
Please, Pick Up The Phone & Your Pen, Judge Garland!
Not rocket science, Judge Garland! All it takes is six calls and a signature to start ending misogyny at EOIR and achieving racial justice in the America.
First three calls: Call Judge Dana Marks (SF), Judge Noel Brennan (NYC), Judge Amiena Khan (Newark) and tell them that they are detailed to the positions of Acting EOIR Director, Acting BIA Chair, and Acting Chief Immigration Judge, respectively. (The first position is vacant and the other two positions are filled by Senior Executives subject to transfer at the AG’s discretion. The current Acting Director already has an SES position to which she could return, or she could be re-installed as the
EOIR General Counsel, a job for which she is well-qualified.)
Fourth call: Call the the head of of the Justice Management Division (JMD). Ask her/him to find suitable DOJ placements for the two current incumbents mentioned above and all current members of the BIA (all of whom are either SES or “Management Officials” subject to transfer at the AG’s discretion) in other DOJ positions at the same pay level where they can do no further damage to our justice system. Ask him/her to arrange for the temporary appointment of former DOJ employees Jamie Gorelick and Layli Miller-Muro as Acting Appellate Judges at the BIA.
Calls five and six: Call Jamie Gorelick and Layli Miller-Muro. Thank them, tell them you agree with their Post op-ed, and ask (or beg) them to come to DOJ on a temporary basis to help Judges Marks, Brennan, and Khan solve the current problems with asylum adjudications and take the necessary actions to get EOIR functioning as a legitimate, independent, due-process-oriented court system. In other words, turn their cogent op-ed into a “real life action plan” for restoring due process, humanity, and common sense to the Immigration Courts, with a focus on the now totally unprofessional, wrong-headed mis-adjudication of asylum cases.
Finally, sign this order:
All precedent decisions issued to EOIR by former Attorneys General Sessions and Barr, and former Acting Attorneys General Whitaker and Wilkinson, and all their pending actions certifying cases to themselves are hereby vacated. All cases shall be returned to the Board of Immigration Appeals (“BIA”) for reconsideration. In the reconsideration process, the BIA shall, among other things, honor the letter and spirit of these binding precedents:
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)
Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987)
Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996)
In the reconsideration process the BIA shall also be guided by the principle of “through teamwork, innovation, and best practices, become the world’s best tribunals, guaranteeing fairness and due process for all.”
See, it’s not that complicated. By the end of this year, women will get the protection to which they legally are entitled from the Immigration Courts. We all will see dramatic changes that will lead the way toward “equal justice for all’” in America and become a blueprint for the Immigration Courts to fulfill the above-stated principle.
It would also be a far better legacy for Judge Garland to be viewed as the “father of the fair, independent, expert Immigration Courts,” than to be remembered as running the most dysfunctional, unfair, and misogynistic court system in America, his current path. And, as an extra added bonus, Judge Garland, you will have a great start on building a premier source of “battle tested,” due-process-oriented, progressive jurists for future Article III appointments!
It’s a “win-win-win” that you no longer can afford to ignore, Your Honor!
Merrick Garland was recently confirmed as attorney general, bringing back a much-needed sense of impartiality and integrity to the Justice Department and the immigration court system it oversees. In this sense, his appointment is critical because, less than two months into his presidency, Joe Biden is already confronting the reality that meaningful immigration policies don’t always match up with wishful campaign promises. As thousands of migrants, especially unaccompanied minors, continue to seek safety and opportunity in the United States; as changes to interior enforcement and immigration prosecutions are slow to implement; and as advocates apprehensively watch detention facilities expand and COVID-related border closures continue, immigration remains the most divisive of all political conversations.
But rather than be overwhelmed by the challenge, perhaps there is another place to start, one that has only been alluded to in Biden’s plans and never taken up by Congress: If we want to re-build a better, stronger immigration system, we need to start with immigration courts. In a Just Security piece published in November, Gregory Chen eloquently laid out the devastating harm caused by the Trump administration’s politicization of the immigration judiciary, pointedly describing the courts as “strained to the breaking point under a massive backlog of cases and a systemic inability to render consistent, fair decisions.”
Courts are the backstop of every legal system. Their most basic function is to ensure that applications of the law are fair, not arbitrary and capricious. In the U.S. immigration system, however, most of the oversight has fallen on administrative courts housed within the Department of Justice. As Chen argues, the courts “operate under the jurisdiction of a prosecutorial agency, the Department of Justice, whose aims and political interests often conflict with the fundamental mission of delivering impartial and fair decisions.” Further exacerbating the tension, beginning in 1996 Congress expanded the executive branch’s already far-reaching power on immigration by starting a 30-year trend of limiting the federal courts’ jurisdiction over immigration issues; efforts that were only reinforced by the 2002 Homeland Security Act and 2005 REAL ID Act. The recently introduced, White House-backed, U.S. Citizenship Act of 2021 only slightly restores judicial oversight, allowing district courts to review allegations of violations of certain portions of the Act. For the foreseeable future, immigration courts remain under the direction of the Executive Office for Immigration Review (EOIR), a small and chronically under-funded sub-agency of the Justice Department, operating out of an office building in Falls Church, Virginia, removed from DOJ leadership in Washington, D.C.
While they by no means caused the issues that plague the EOIR today, the Trump administration’s policies put the proverbial final nail in the coffin of a quasi-functioning system, decimating the daily functions of immigration courts and showing how they can be used as political tools. The overwhelming backlog of cases –nearly 1.3 million at last count across all courts– exacerbated by the enforcement-first agenda, means that immigration judges have enormous caseloads with few support staff to help them manage the work. In addition, policies by the Trump administration removed judicial discretion from judges, prevented them from using simple control tools to manage their dockets, tied performance reviews to how many cases they closed out within a year while making it harder to avoid entering deportation orders, and created new administrative law to further restrict benefits a judge can grant. When the immigration bench pushed back, leadership dismantled the union that represented them. Hiring and rewards practices have politicized the bench even more. As Chen noted in his piece, the Trump administration “stacked the courts with appointees who are biased toward enforcement, have histories of poor judicial conduct, hold anti-immigrant views, or are affiliated with organizations espousing such views.”
This is not the hallmark of a functional legal system, and its ripple effects undermine our immigration system as a whole.
. . . .
Otherwise, we will prolong a situation that would be comical were the implications not so devastating. Returning to the individuals stranded in Mexico due to the MPP, for example – as of the time of this writing, they are being registered into a database and given COVID tests by various international organizations. Once cleared to enter the United States, they will fill out a form, by hand, which is handed to the Customs and Border Protection official. The CBP officer, overwhelmed and under-resourced as they are at the border, will then transmit this paper form to the immigration court officials, who will enter it into their systems and change the case to the appropriate court. In New York, these courts do not even have sufficient staff to assign one clerk, who also doubles as an administrative assistant, to each judge. As a result, calls to the court frequently go unanswered and are rarely returned. Furthermore, increasingly, understaffing has led to misplaced evidence submissions for pending cases. The responsibility to ensure that all of these obstacles are overcome will lie on the individual who just, finally, entered the United States.
An independent immigration judiciary, with its own resources and free from political oversight, is the only long-lasting remedy to this dysfunction. In the meantime, the agency, much like the DOJ it depends on, is in desperate need of thoughtful, measured leadership that values due process and impartiality and supports existing staff as it continues to navigate the complex problems posed by our immigration laws. There must be trained, dedicated staff ensuring efficient management of the court’s dockets and administrative systems so that the individuals whose cases are going through the courts understand what is required of them. Only then will the immigration system reflect American notions of justice, and only then can we begin to rebuild a strong, sustainable immigration system that meets our goals for foreign policy, national security, and domestic prosperity.
******************
Read Camille’s full article at the link.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Not rocket science! Just following the due process clause of the Constitution; implementing asylum laws in the fair, generous, and practical way they were intended; replacing today’s failed EOIR administrators, the entire BIA, and many Immigration Judges responsible for “asylum free zones” with competent, expert professionals; and treating migrants, regardless of race, color, creed, or gender, as human beings!
If you wonder why Judge Garland is continuing to run “star chambers” masquerading as “courts” @ DOJ, join the club!
“Justice” Star Chamber Style
As cogently described by my friend and fellow panelist at the Hispanic National Bar Association last night, Claudia Cubas, Litigation Director at the CAIR Coalition, in what other “court” system in America are you not entitled to a timely copy of your client’s file to prepare for litigation and file applications (often with artificially truncated “filing dates” to promote “summary denials”)? Making the Immgration Courts functional is neither impossible nor that complicated. All it takes is competent leadership with the guts to “clean house” at EOIR and “kick some tail” at an intransigent, contemptuous, and out of control DHS.
Claudia Cubas Litigation Director CAIR Coalition Photo: berkleycenter.georgetown.edu
So why is Judge Garland investing in the continuing, deadly “Clown Show,”🤡🦹🏿♂️☠️⚰️ rather than getting going on bringing “his” courts into compliance with due process? It’s not even that hard to get the right experts who could do the job in place, at least on a temporary basis.
Judge Merrick B. Garland Official White House Photo Public Realm
If Judge Garland won’t do his job, what can we do to force change and rationality into this totally dysfunctional, stunningly unfair, scofflaw system? Here are some ideas from last night’s panel at the Hispanic National Bar Association (“HNBA”):
Apply for jobs at EOIR (sure, they are hidden away on “USA Jobs,” there is no effort whatsoever on Judge Garland’s part to diversify or recruit real experts, and the selection process is opaque). But, better judges, with actual experience representing migrants (particularly asylum seekers) in court, and some compassion and human understanding along with expertise, are the key to fixing the system. It’s particularly critical for minority attorneys (now a relative rarity in the “Immigration Judiciary”) to apply in overwhelming numbers and get into the system to start forcing change from within (“bore from within,” as Dan Kowalski says). Can’t complain about who’s selected if you don’t apply and compete!
Raise hell with your legislative representatives! As long as Immigration Court reform is #27 on their radar screens, the problem won’t get addressed.
Get involved with educating the public about the ungodly, un-American disaster in the Immigration “Courts” that don’t fit any normal definition of “courts” (except “kangaroo courts”). Join and support advocacy and social service groups; write op-eds; write for blogs; speak at community and church meetings; run for political office!
Sue, sue, sue, sue! Make sure that the systemic mistreatment of migrants and people of color in Judge Garland’s Immigration Courts are front and center in the Article III Courts and that we are making an historical record of where Federal Judges and public officials stand on the most critical racial and social justice issue in America today. Argue the very obvious Constitutional violations present in a system run by prosecutors, where judges can be neither fair nor impartial, and where many lack even minimal competence and qualifications for their “judicial” positions. Take the fight to the broken and dysfunctional DOJ in the only way they understand, by whacking them down in court! Make Judge Garland face and “own” his disgracefully failed, unprofessional “courts” by making it the #1 issue occupying his time. Make how he deals with the Immigration Courts his overriding “legacy” for better or worse!
Remember, GOP politicos like to use immigration as a “prop” to spread their message of racial vilification and dehumanization of the “other” because it “fires up” their White Nationalist base! By contrast, Dem politicos want to make immigration go away and pretend like the mess in the Immigration Courts doesn’t exist, can’t be fixed, isn’t that important (as in lives of migrants and asylum seekers, mainly of color, don’t count), and isn’t killing people! Don’t let either party get away with their respective dishonest, “designed for failure,” approaches!
Humanity and the future of American democracy are at stake here! They might be “Clown Courts” 🤡 but the damage they daily inflict on human lives ☠️⚰️ and values 🤮 is no laughing matter!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! Put an end to deadly “Clown Courts” 🤡 now!
