Bible – Page 13 – immigrationcourtside.com

⚖️🇺🇸👍🏼🗽DEAN KEVIN JOHNSON’S SUCCINCT RESPONSE TO GREG ABBOTT’S PREDICTABLE SOUTHERN BORDER BS IS WORTH A READ! — PLUS: ARELIS HERNANDEZ OF WASHPOST WITH SOME MUCH-NEEDED TRUTH & PERSPECTIVE FROM THOSE ACTUALLY LIVING ON THE SOUTHERN BORDER: “We need more lawyers and judges, not more troops or technology.”

https://lawprofessors.typepad.com/immigration/2021/03/texas-governor-abbott-statement-on-unaccompanied-minor-crisis-created-by-biden-administration.html

There, of course, are pressing humanitarian issues to address along the U.S./Mexico border. But to say that this issues are a result of “open border policies” is simply wrong. No major party political leader to my knowledge is calling for “open borders.” Rather, the “open borders” mantra is something that Republican politicians invoke to attack immigration policies that they do not like.

Democrats have another explanation for the current situation at the border. House Speaker Nancy Pelosi told ABC News’ “This Week” that the policies of the Trump administration, which radically transformed immigration enforcement from 2017-21, are to blame for the recent increase in unaccompanied migrant children at the southern border,

“This is a humanitarian challenge to all of us,” Pelosi said. “What the administration has inherited is a broken system at the border and they are working to correct that in the children’s interests.”

To address humanitarian concerns, Homeland Secretary Alejandro N. Mayorkas has directed the Federal Emergency Management Agency (FEMA) to support an effort over the next 90 days to safely shelter unaccompanied children who make the dangerous journey to the U.S./Mexico border.

KJ

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Thanks, Kevin, for adding some reality and perspective to the discussion. You can read Abbott’s statement at the link. Notably, the Republicans have offered no constructive solutions to this humanitarian issue, either in or out of power, other than to engage in child abuse and continually violate the laws, both international and domestic.

The criticism from the likes of Abbott, who as “Governor” of Texas has presided over a power grid disaster that actually killed and threatened the health of Texas residents and who has thumbed his nose at public health recommendations that save lives, is particularly disingenuous. And, naturally, the dangerous and deadly results of Abbott’s and the GOP’s mis-governance of Texas have fallen disproportionately on Latinos and other communities of color. The Abbott/GOP response has been to attempt to disenfranchise citizens of color in Texas!

The same can be said of GOP House Minority Leader Kevin McCarthy whose main contribution to America’s safety and security has been to whitewash the deadly assault on our Capitol that his “supreme leader” orchestrated. Again, a person with no credibility.

Those seeking a more nuanced and accurate picture of what’s really happening at the Southern Border should read the lengthy report of Arelis Hernandez in the WashPost:

https://www.washingtonpost.com/immigration/migrants-are-not-overrunning-us-border-towns-despite-the-political-rhetoric/2021/03/15/b193f3f2-8345-11eb-ac37-4383f7709abe_story.html

Migrants are not overrunning U.S. border towns, despite the political rhetoric

Leaders in Texas border towns say their economies are suffering because of pandemic restrictions on cross-border travel.

. . . .

City officials and nonprofit organizations can’t force families to stay in the hotels but Darling, the McAllen mayor, said so far no one they track has left isolation prematurely.

“We tell them if they want to leave on our buses, they need to follow our rules,” he said. The city has spent nearly $200,000 of taxpayer money it hopes will be reimbursed by the federal government, but Abbott’s rejection of Federal Emergency Management Agency funding from the Biden administration will complicate matters for localities.

Darling said his city is full of compassionate people, and they are doing the rest of the country a favor in taking care of migrant families on the front end of their journeys.

Along the border, faith organizations, local emergency managers and immigration advocates say they have learned from previous surges how best to coordinate. They are preparing to receive flights and buses full of asylum seekers, mostly recently released families with small children, to ease capacity issues that critics say the Department of Homeland Security officials should have anticipated.

Coronavirus restrictions have put capacity limits on shelters run by community organizations on the U.S. side of the border, but so far the numbers are not at 2019 levels, said Pastor Michael Smith of the Holding Institute in Laredo. Shelters and temporary detention facilities operated by the U.S. Health and Human Services’ contractors, however, are over capacity.

But without more orderly intervention, the numbers could overwhelm. The Biden administration plans to deploy FEMA to the border to help with the migration surge as the administration tries to quickly scale up space to temporarily hold and process migrants and unaccompanied children — many between the ages of 13 and 17.

“The failure to have an administrative process is causing a humanitarian crisis,” Smith said during a news conference organized by Laredo activists. “There are solutions to the issues, but they are not solutions that call for militarizing the border.”

“We need robust infrastructure at our ports of entry to handle people seeking asylum,” said Tannya Benavides, of the No Border Wall coalition. “We need more lawyers and judges, not more troops or technology.”

Arelis R. Hernandez
Southern Border Reporter
Washington Post

Great article by Arelis! I highly recommend it. My only caveat is that we need not just more lawyers and judges, certainly correct, but better Immigration Judges who are experts in asylum law, have experience representing asylum seekers, and can fairly, efficiently, and consistently identify those with valid claims to protection under the law before it was perverted by the Trump regime. Also, the Government could use more qualified Asylum Officers who could screen and finally adjudicate the grantable cases, under correct legal criteria set forth by better-qualified Immigration Judges and a completely new due-process-human rights-oriented BIA without even having to send the cases to court.

These are the bold steps necessary to get out of the cycle of “same old, same old” — which inevitably ends with harsh measures directed at asylum seeking families and children that do nothing to address the causes of forced migration. “Enforcement-only deterrent measures” never have solved, and never will solve, the long-term problem in a constructive manner. The cycle of failed, yet expensive and inhumane deterrents, just keeps repeating itself Administration after Administration.

I have already suggested tapping into retired Asylum Officers and other retired USCIS Adjudicators with the necessary asylum expertise. I’m betting that my retired Round Table colleague, and former Asylum Officer and UN Official, Judge Paul Grussendorf would be available to help lead such an effort.

To solve this problem, the Biden Administration must put some experts who understand the practicalities of refugee and asylum situations in place and let them solve the problem. It should come as no shock that the current gangs at DHS and EOIR —largely holdovers who participated in the Trump regime’s cruel, failed, and illegal “enforcement only” policies at the border — are not going to be able to get the job done. At least they can’t without some effective “adult supervision” from those committed to humane, legal, and timely processing of asylees and other migrants in full compliance with due process and best practices.

The Trump regime eschewed any attempt to build a fair, effective, timely asylum adjudication system that complied with domestic and international law as well as due process. Instead, they concentrated on eradicating the entire U.S. refugee and protection system through regulations (many enjoined), Executive Orders (some enjoined), bogus administrative “precedents,” and stacking the Immigration Courts with overtly anti-asylum or “go along to get along” “judges.” Right now, the entire system is in shambles — the most obvious example being the totally dysfunctional mess at EOIR!

To “win the game,” the Biden Administration needs to get the right players on the field. While there has been some notable progress, that hasn’t happened to date. And, with politicos like Abbott and McCarthy stirring the pot daily, time is running to get the “A Team” in place to combat their lies, distortions, and nonsense.

🇺🇸🗽⚖️Due Process Forever!

PWS

01-16-21

🗽🇺🇸SETTING THE RECORD STRAIGHT: PROFESSOR HEATHER COX RICHARDSON EXPLAINS THE SITUATION AT THE SOUTHERN BORDER

From Letters From An American, March 13, 2017:

https://heathercoxrichardson.substack.com/p/march-13-2021?r=330z7&utm_campaign=post&utm_medium=email&utm_source=email

Republican pundits and lawmakers are, once again, warning of an immigration crisis at our southern border.

Texas governor Greg Abbott says that if coronavirus spreads further in his state, it will not be because of his order to get rid of masks and business restrictions, but because President Biden is admitting undocumented immigrants who carry the virus. Senator Ted Cruz (R-TX) is also talking up the immigration issue, suggesting (falsely) that the American Rescue Plan would send $1400 of taxpayer money “to every illegal alien in America.”

Right-wing media is also running with stories of a wave of immigrants at the border, but what is really happening needs some untangling.

When Trump launched his run for the presidency with attacks on Mexican immigrants, and later tweeted that Democrats “don’t care about crime and want illegal immigrants, no matter how bad they may be, to pour into and infest our Country,” he was tangling up our long history of Mexican immigration with a recent, startling trend of refugees from El Salvador, Guatemala, and Honduras (and blaming Democrats for both). That tendency to mash all immigrants and refugees together and put them on our southern border badly misrepresents what’s really going on.

Mexican immigration is nothing new; our western agribusinesses were built on migrant labor of Mexicans, Japanese, and poor whites, among others. From the time the current border was set in 1848 until the 1930s, people moved back and forth across it without restrictions. But in 1965, Congress passed the Hart-Celler Act, putting a cap on Latin American immigration for the first time. The cap was low: just 20,000, although 50,000 workers were coming annually.

After 1965, workers continued to come as they always had, and to be employed, as always. But now their presence was illegal. In 1986, Congress tried to fix the problem by offering amnesty to 2.3 million Mexicans who were living in the U.S. and by cracking down on employers who hired undocumented workers. But rather than ending the problem of undocumented workers, the new law exacerbated it by beginning the process of guarding and militarizing the border. Until then, migrants into the United States had been offset by an equal number leaving at the end of the season. Once the border became heavily guarded, Mexican migrants refused to take the chance of leaving.

Since 1986, politicians have refused to deal with this disconnect, which grew in the 1990s when the North American Free Trade Agreement (NAFTA) flooded Mexico with U.S. corn and drove Mexican farmers to find work, largely in the American Southeast. But this “problem” is neither new nor catastrophic. While about 6 million undocumented Mexicans currently live in the United States, most of them–78%– are long-term residents, here more than ten years. Only 7% have lived here less than five years. (This ratio is much more stable than that for undocumented immigrants from any other country, and indeed, about twice as many undocumented immigrants come legally and overstay their visas than come illegally across the southern border.)

Since 2007, the number of undocumented Mexicans living in the United States has declined by more than a million. Lately, more Mexicans are leaving America than are coming.

What is happening right now at America’s southern border is not really about Mexican migrant workers.

. . . .

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Read Heather’s complete article at the link.

The Biden Administration needs to stay the course and continue to treat this as the humanitarian situation that it is, rather than portraying desperate kids and families like an invading army. These issues can be addressed without engaging in egregious violations of international laws, domestic laws, and our Constitution. Even with the current flow, we are not going to be “overrun” with migrants. Indeed, by most reliable accounts, we will need increased immigration for our recovery and long-term economic well-being.

A critical piece will be revoking the Sessions/Whitaker/Barr precedents, replacing the current BIA with real judges who are experts in immigration, asylum, human rights, and due process, removing most of the cases unnecessarily lingering on the self-bloated EOIR docket, and getting some real expert guidance on asylum law and due process out there from the “new BIA” to guide decision-making at both DHS and EOIR.

Our asylum, refugee, and immigration systems can be fixed. But, not with the “players” left behind by the past regime. And, certainly not with more scofflaw, uber-enforcement-only gimmicks, cruelty, and inhumane policies like those that have failed time after time in the past.

🇺🇸⚖️🗽Due Process Forever!

PWS

03-14-21

🇺🇸🗽EUGENE ROBINSON @ WASHPOST — Biden Must Do The Right Thing For Kids At The Border — Their Best Interests Are Our Best Interests!

https://www.washingtonpost.com/opinions/biden-migrant-surge-stop-child-detention/2021/03/11/99d9a7e4-8295-11eb-9ca6-54e187ee4939_story.html

. . . .

So the Biden administration needs to do two things. First, it needs to create more shelter space, at least in the short term. Reopening a mothballed, 700-bed Trump-era shelter for migrant teens in Carrizo Springs, Tex. — a step the Department of Health and Human Services took last month — was probably necessary, but it’s not a good look for an administration trying to turn the page. New shelters are needed, and they must be put into service with the same urgency the administration summons for coronavirus vaccination centers.

The other thing the administration must do is move children out of the shelters into family or sponsor custody faster. This is mostly a matter of bureaucratic efficiency. Many of these “unaccompanied” minors actually were accompanied when they crossed the border, but by their grandparents, aunts, uncles or older siblings — not their parents. Biden needs to flood the zone with enough investigators, lawyers and other personnel to speedily determine that these relatives are in fact relatives, not traffickers, so these families can be promptly reunited.

Just as Biden and his aides decided to err on the side of doing too much rather than too little on covid-19 relief, they should go big on the border. When the pandemic does end, existing shelter space should be enough to handle the kind of surge we’re seeing now — but that day could be many months away. The system is overloaded this minute.

As a matter of politics, it is unwise for Biden to give Republicans fodder for demagoguery about a supposed border “crisis.” It is equally unwise to give progressive Democrats any reason to complain that his border policy is less than a complete departure from Trump’s.

And as a matter of policy, Biden must keep his eye on one guiding star: We are talking about the lives and well-being of children. It is nothing less than our duty to love and care for them as if they were our own.

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Read Eugene’s full op-ed at the link.

In addition to asking for DHS volunteers, another idea is to quickly rehire retired Asylum Officers, Refugee Officers, and Immigration Inspectors to help out on a temporary basis.

Eugene’s article reminds me of one of my first essays that I published on Courtside in 2016, set forth in full here (originally published by Dan Kowalski in LexisNexis Immigration Community) :

SAVING CHILD MIGRANTS WHILE SAVING OURSELVES

SAVING CHILD MIGRANTS WHILE SAVING OURSELVES

By Paul Wickham Schmidt

They cross deserts, rivers, and territories controlled by corrupt governments, violent gangs, and drug cartels. They pass through borders, foreign countries, different languages and dialects, and changing cultures.

I meet them on the final leg of their trip where we ride the elevator together. Wide-eyed toddlers in their best clothes, elementary school students with backpacks and shy smiles, worried parents or sponsors trying to look brave and confident. Sometimes I find them wandering the parking garage or looking confused in the sterile concourse. I tell them to follow me to the second floor, the home of the United States Immigration Court at Arlington, Virginia. “Don’t worry,” I say, “our court clerks and judges love children.”

Many will find justice in Arlington, particularly if they have a lawyer. Notwithstanding the expedited scheduling ordered by the Department of Justice, which controls the Immigration Courts, in Arlington the judges and staff reset cases as many times as necessary until lawyers are obtained. In my experience, retaining a pro bono lawyer in Immigration Court can be a lengthy process, taking at least six months under the best of circumstances. With legal aid organizations now overwhelmed, merely setting up intake screening interviews with needy individuals can take many months. Under such conditions, forcing already overworked court staff to drop everything to schedule initial court hearings for women and children within 90 days from the receipt of charging papers makes little, if any, sense.

Instead of scheduling the cases at a realistic rate that would promote representation at the initial hearing, the expedited scheduling forces otherwise avoidable resetting of cases until lawyers can be located, meet with their clients (often having to work through language and cultural barriers), and prepare their cases. While the judges in Arlington value representation over “haste makes waste” attempts to force unrepresented individuals through the system, not all Immigration Courts are like Arlington.

For example, according to the Transactional Records Clearinghouse at Syracuse University (“TRAC”), only 1% of represented juveniles and 11% of all juveniles in Arlington whose cases began in 2014, the height of the so-called “Southern Border Surge,” have received final orders of removal. By contrast, for the same group of juveniles in the Georgia Immigration Courts, 43% were ordered removed, and 52% of those were unrepresented.

Having a lawyer isn’t just important – it’s everything in Immigration Court. Generally, individuals who are represented by lawyers in their asylum cases succeed in remaining in the United States at an astounding rate of five times more than those who are unrepresented. For recently arrived women with children, the representation differential is simply off the charts: at least fourteen times higher for those who are represented, according to TRAC. Contrary to the well-publicized recent opinion of a supervisory Immigration Judge who does not preside over an active docket, most Immigration Judges who deal face-to-face with minor children agree that such children categorically are incompetent to represent themselves. Yet, indigent individuals, even children of tender years, have no right to an appointed lawyer in Immigration Court.

To date, most removal orders on the expedited docket are “in absentia,” meaning that the women and children were not actually present in court. In Immigration Court, hearing notices usually are served by regular U.S. Mail, rather than by certified mail or personal delivery. Given heavily overcrowded dockets and chronic understaffing, errors by the Department of Homeland Security (“DHS”) in providing addresses and mistakes by the Immigration Court in mailing these notices are common.

Consequently, claims by the Department of Justice and the DHS that women and children with removal orders being rounded up for deportation have received full due process ring hollow. Indeed a recent analysis by the American Immigration Council using the Immigration Court’s own data shows that children who are represented appear in court more than 95% of the time while those who are not represented appear approximately 33% of the time. Thus, concentrating on insuring representation for vulnerable individuals, instead of expediting their cases, would largely eliminate in absentia orders while promoting real, as opposed to cosmetic, due process. Moreover, as recently pointed out by an article in the New York Times, neither the DHS nor the Department of Justice can provide a rational explanation of why otherwise identically situated individuals have their cases “prioritized” or “deprioritized.”

Rather than working with overloaded charitable organizations and exhausted pro bono attorneys to schedule initial hearings at a reasonable pace, the Department of Justice orders that initial hearings in these cases be expedited. Then it spends countless hours and squanders taxpayer dollars in Federal Court defending its “right” to aggressively pursue removal of vulnerable unrepresented children to perhaps the most dangerous, corrupt, and lawless countries outside the Middle East: El Salvador, Guatemala, and Honduras. The Board of Immigration Appeals (“BIA”), the institution responsible for enforcing fairness and due process for all who come before our Immigration Courts, could issue precedent decisions to stop this legal travesty of accelerated priority scheduling for unrepresented children who need pro bono lawyers to proceed and succeed. But, it has failed to act.

The misguided prioritization of cases of recently arrived women, children, and families further compromises due process for others seeking justice in our Immigration Courts. Cases that have been awaiting final hearings for years are “orbited” to slots in the next decade. Families often are spread over several dockets, causing confusion and generating unnecessary paperwork. Unaccompanied

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children whose cases should initially be processed in a non-adversarial system are instead immediately thrust into court.

Euphemistically named “residential centers” — actually jails — wear down and discourage those, particularly women and children, seeking to exercise their rights under U.S. and international law to seek refuge from death and torture. Regardless of the arcane nuances of our asylum laws, most of the recent arrivals need and deserve protection from potential death, torture, rape, or other abuse at the hands of gangs, drug cartels, and corrupt government officials resulting from the breakdown of civil society in their home countries.

Not surprisingly, these “deterrent policies” have failed. Individuals fleeing so-called “Northern Triangle” countries of El Salvador, Guatemala, and Honduras have continued to arrive at a steady pace, while dockets in Immigration Court, including “priority cases,” have mushroomed, reaching an astonishing 500,000 plus according to recent TRAC reports (notwithstanding efforts to hire additional Immigration Judges). As reported recently by the Washington Post, private detention companies, operating under highly questionable government contracts, appear to be the only real beneficiaries of the current policies.

It doesn’t have to be this way. We could save lives and short-circuit both the inconsistencies and expenses of the current case-by-case protection system, while allowing a “return to normalcy” for most already overcrowded Immigration Court dockets by using statutory Temporary Protected Status (known as “TPS”) for natives of the Northern Triangle countries. Indeed, more than 270 organizations with broad based expertise in immigration matters, as well as many members of Congress, have requested that the Administration institute such a program.

The casualty toll from the uncontrolled armed violence plaguing the Northern Triangle trails only those from Syria, Afghanistan, and Iraq. TPS is a well- established humanitarian response to a country in crisis. Its recipients, after registration, are permitted to live and work here, but without any specific avenue for obtaining permanent residency or achieving citizenship. TPS has been extended among others to citizens of Syria and remains in effect for citizens of both Honduras who needed refuge from Hurricane Mitch in 1998 and El Salvador who needed refuge following earthquakes in 2001. Certainly, the disruption caused by a hurricane and earthquakes more than a decade ago pales in comparison with the very real and gruesome reality of rampant violence today in the Northern Triangle.

Regardless, we desperately need due-process reforms to allow the Immigration Court system to operate more fairly, efficiently, and effectively. Here are a few suggestions: place control of dockets in the local Immigration Judges, rather than bureaucrats in Washington, as is the case with most other court systems; work cooperatively with the private sector and the Government counsel to docket cases at a rate designed to maximize representation at the initial hearings; process unaccompanied children through the non-adversarial system before rather

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than after the institution of Immigration Court proceedings; end harmful and unnecessary detention of vulnerable families; settle ongoing litigation and redirect the talent and resources to developing an effective representation program for all vulnerable individuals; and make the BIA an effective appellate court that insures due process, fairness, uniformity and protection for all who come before our Immigration Courts.

Children are the future of our world. History deals harshly with societies that mistreat and fail to protect children and other vulnerable individuals. Sadly, our great country is betraying its values in its rush to “stem the tide.” It is time to demand an immigrant justice system that lives up to its vision of “guaranteeing due process and fairness for all.” Anything less is a continuing disgrace that will haunt us forever.

The children and families riding the elevator with me are willing to put their hopes and trust in the belief that they will be treated with justice, fairness, and decency by our country. The sole mission and promise of our Immigration Courts is due process for these vulnerable individuals. We are not delivering on that promise.

The author is a recently retired U.S. Immigration Judge who served at the U.S. Immigration Court in Arlington Virginia, and previously was Chairman and Member of the Board of Immigration Appeals. He also has served as Deputy General Counsel and Acting General Counsel of the former Immigration and Naturalization Service, a partner at two major law firms, and an adjunct professor at two law schools. His career in the field of immigration and refugee law spans 43 years. He has been a member of the Senior Executive Service in Administrations of both parties.

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🇺🇸⚖️🗽Due Process Forever!

PWS

03-13-21

⚖️🗽JENNIFER DOHERTY @ LAW360 ANALYZES JUDGE ILLSTON’S MASSIVE TAKEDOWN OF EOIR’S ANTI-DUE-PROCESS REGULATIONS — I Speak Out On Why Judge Garland Needs To Pull Plug On The EOIR Clown Show 🤡 Sooner, Rather Than Later! — PLUS, BONUS COVERAGE: My “Open Letter” To Judge Garland!

https://www.law360.com/articles/1363797

Here’ what I had to say to Jennifer:

. . ..

Retired Immigration Judge Paul Wickham Schmidt, a former chairman of the Board of Immigration Appeals who was also general counsel to the Immigration and Naturalization Service at the time of the EOIR’s creation, likewise praised Judge Illston’s order in an interview with Law360 Thursday.

Judge Schmidt, a vocal opponent of the Trump administration’s management of the EOIR, characterized the rule as part of a larger effort to discourage immigrants by stacking the courts against them, rather than a good-faith effort to reduce ballooning backlogs.

“When your docket is 1.3 million, it’s not the fact that someone is getting a few extra days in a continuance, it’s the fact that DHS is adding more cases,” he said.

As for whether the DOJ under President Joe Biden would continue defending the rule — as it is for one of the Trump-era asylum rules — Judge Schmidt said it was hard to say. But newly confirmed Attorney General Merrick Garland should prioritize changing the EOIR, as he stated his mission would be to restore nonpartisanship and defense of civil rights as pillars of the department, the judge said.

“If Garland wants to straighten out the Department of Justice, he’s got to straighten out EOIR. EOIR is a living refutation of everything Garland says he stands for,” Judge Schmidt told Law360.

Representatives for the DOJ did not respond to a request for comment Thursday.

The immigrant advocates are represented by Jingni (Jenny) Zhao, Anoop Prasad and Glenn Michael Katon of Asian Americans Advancing Justice — Asian Law Caucus, Seferina Young Berch, Stephen Chang, Naomi Ariel Igra, Michael O McGuinness, Scott T. Nonaka and Irene Inkyu Yang of Sidley Austin LLP, and Judah Ben Lakin and Amalia Margarete Wille of Lakin & Wille LLP.

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Thankfully, Jennifer is operating “outside the paywall” on this particular article. So, all of you can get full access to her outstanding reporting on this case at the above link.

Dear Judge Garland:

Congratulations again and best wishes on your recent appointment as our Attorney General. I write to beg you, as a former DOJ colleague, Senior Executive, and administrative judge to deal immediately with a festering problem undermining the entire U.S. Justice system that is unfolding right under your nose, whether or not you have had time to focus on it.

A number of the individuals and organizations whose help you will need to fix EOIR and achieve equal justice for all in America are instead having their time and precious resources diverted to defending our justice system and the Constitution from absurdly illegal and obscenely counterproductive decisions and actions now being taken in YOUR NAME, such as the illegal EOIR regulations in this case. Indeed, these regulations and many other travesties still being pursued by EOIR at the behest of the former regime should have been on the chopping block long before you were even sworn in.

Not only are you now squandering Executive Branch and private sector resources that could better be devoted to solving problems, you are also wasting the time and trying the patience of thoughtful Federal Judges like U.S. District Judge Susan Illston. Certainly, as a former highly admired and respected Federal Judge, you know the value of judicial time in our system.

Additionally, failure to take immediate steps to end the dysfunction, disorder, and nonsense still streaming from EOIR on a daily basis is not only destroying vulnerable human lives, but also costing you goodwill with the very NGOs and talented, dedicated, often pro bono advocates whose assistance and support will be absolutely necessary for you to succeed in your stated objectives of returning integrity to the DOJ, eradicating institutionalized racism, and finally, finally achieving long overdue equal justice under law for all in America.

As I told Jennifer, EOIR is a “living contradiction” of everything you said in your confirmation hearing. It’s also a repudiation of the values that I have always seen and respected in you, even if mostly from afar.

I beseech you to “pull the plug” on today’s EOIR and put someone in there who can start getting it back on track: A “Due Process/Human Rights/Immigration Guru,” if you will. In terms to which we both can relate, you must find a judicial leader in the image of our late great colleague from the Carter DOJ, and your former colleague on the D.C. Circuit, Judge Patricia M. Wald. As we both know, she was was brilliant, energetic, yet highly practical, well-organized, and unswervingly committed to realizing social justice on both the national and eventually international stages.

Put someone who can run a real due-process-oriented court system in charge of the EOIR mess and let ‘er rip. You can cement your legacy to American Justice by achieving EOIR’s once noble, now discarded, vision that many of us who once served there established to guide our actions: “Through teamwork and innovation, be the world’s best tribunals guaranteeing fairness and due process for all.”

With my very best wishes for your continued success,

Your former DOJ colleague from decades past,

Paul

🏴‍☠️🤡SLOPPINESS, POOR ANALYSIS, MISCONSTRUING RECORD, CONTEMPT FOR COURTS CONTINUE TO PLAGUE BIA’S DENIAL CULTURE!

Kangaroos — Anybody remember the last time we interpreted the law or facts in favor of a human?
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Here are four more recent screw-ups:

Misinterpreting “Realistic Possibility” — 8th Cir.

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca8-on-realistic-probability—lopez-gonzalez-v-wilkinson

CA8 on “Realistic Probability” – Lopez Gonzalez v. Wilkinson

Lopez Gonzalez v. Wilkinson

“The question in this case is whether the categorical approach requires a petitioner seeking cancellation of removal to demonstrate both that the state offense he was convicted of is broader than the federal offense and that there is a realistic probability that the state actually prosecutes people for the conduct that makes the state offense broader than the federal offense. We conclude that it does not. … Because the BIA’s decision relied on a misinterpretation of the realistic probability inquiry, we grant the petition for review, vacate, and remand for further proceedings consistent with this opinion.”

[Hats off to Jamie Arango!]

2) Wrong Interpretation Of Child Status Protection Act — 2d Cir.

Cuthill v. Blinken

https://www.ca2.uscourts.gov/decisions/isysquery/05b681bb-4767-4cf6-b370-6f0ee77ad5d2/3/doc/19-3138_opn.pdf

D. Chevron Deference

Lastly, the government argues that we should defer to the decision by the Board of Immigration Appeals (“BIA”) in Matter of Zamora-Molina, 25 I. & N. Dec. 606, 611 (B.I.A. 2011), in which the BIA adopted the same interpretation as the Department of State. Even assuming, without deciding, that Chevron deference applies when one agency (the Department of State) seeks to rely on the interpretation of another agency (the Department of Justice), we agree with the district court and with the Ninth Circuit that Chevron deference does not apply here because “the intent of Congress is clear.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); see also id. at 842–43 (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”); Tovar, 882 F.3d at 900 (declining to apply Chevron deference to Zamora-Molina because “traditional tools of statutory construction” and “the irrationality of the result sought by the government” combine to “demonstrate beyond any question that Congress had a clear intent on the question at issue”). As discussed above, the text, structure, and

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legislative history of the CSPA conclusively show the “unambiguously expressed intent of Congress” to protect beneficiaries like Diaz. Chevron, 467 U.S. at 843.7

3) Ignoring Previous Circuit Ruling On Related Case — 10th Cir.

https://www.ca10.uscourts.gov/opinions/20/20-9520.pdf

Ni v. Wilkinson, unpublished

After we determined that conditions in China had materially worsened for Christians, Mr. Ni moved again for reopening. Despite our opinion in his wife’s case, the Board of Immigration Appeals concluded

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again that Mr. Ni had failed to show a material change in country conditions.

This conclusion is unsupportable. Mr. Ni’s evidence of worsening

conditions in China largely mirrored his wife’s evidence, which had led us

to grant her petition for review. Mr. Ni’s evidence was even stronger than

his wife’s because China had recently adopted a regulatory crackdown on

practicing Christians. We thus grant Mr. Ni’s petition for review.

4) Misconstruction Of Record — 1st. Cir.

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca1-on-albania-changed-circumstances-lucaj-v-wilkinson

CA1 on Albania, Changed Circumstances: Lucaj v. Wilkinson

Lucaj v. Wilkinson

“To support his case for reopening, Mr. Lucaj submitted an affidavit complaining in particular about two events that occurred after his removal proceeding in 2006: The Socialist party took power in 2013, and then in 2019 the Socialists’ corruption and connections with organized crime deterred the opposition party from even participating in the 2019 elections. Mr. Lucaj provided, among other things, the State Department’s 2018 Human Rights Report on Albania, the Freedom House “Freedom in the World 2018” Report on Albania, and articles from 2018 and 2019 about corruption in Albania and the Socialist Party’s success in recent elections. We do not know whether those submissions show materially worsening conditions for Democratic Party members in Albania, however, because the BIA refused to compare those reports to available evidence of conditions from 2006, claiming that Mr. Lucaj had not “explained how the proffered . . . country condition documentation show[s] qualitatively different conditions from 2006.” Plainly, though, he did so by pointing out the two cited, post-2006 events as evidence of changed conditions. The BIA’s failure to assess whether those changes were sufficient was arbitrary and capricious. … Therefore, we reverse the decision by the BIA and remand Mr. Lucaj’s case so that the BIA can review available evidence to examine whether conditions for members of the Democratic Party in Albania have deteriorated since 2006 and, if so, whether Mr. Lucaj has established a prima facie case for relief.”

[Hats off to Gregory G. Marotta!]

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

America and humanity deserve better from a supposed “expert tribunal” which actually functions more like a “denial factory” without much, if any, “quality control.” No wonder these guys are running an out of control, ever-expanding 1.3 million case backlog!

Denying continuances, not closing cases that belong at USCIS, rushed briefing, IJ’s “certifying” BIA remands to the Director (who should have no judicial role), dismissing applications for failure to fill in irrelevant blanks, raising fees, and a host of other nonsensical proposals that EOIR has had shot down by the Article III Courts recently won’t reduce the backlogs. They actually will make it worse, as have all the other “gimmicks” tried by EOIR to eradicate due process and dehumanize migrants over the past four years!

See, e.g., https://immigrationcourtside.com/2021/03/11/%e2%9a%96%ef%b8%8f%f0%9f%97%bdu-s-district-judge-susan-illston-nd-ca-shreds-enjoins-eoirs-anti-due-process-%e2%98%a0%ef%b8%8f%f0%9f%a4%aemidnight-rules-judge-p/

Who ever heard of lower court judges providing “quality control” for appellate judges, working through a bureaucrat who (at the time the proposal was supposedly “finalized”) had never presided over a case in Immigration Court? And, let’s remember, these are haphazardly selected trial judges, a decidedly non-diverse, non-representative group, whose own qualifications, expertise, judicial temperament, and training have been widely criticized by experts in the field. Few of today’s Immigration Judges and BIA Judges would be “household names” among immigration, human rights, and constitutional law experts and scholars!

See,e.g., https://immigrationcourtside.com/2021/03/08/%f0%9f%8f%b4%e2%80%8d%e2%98%a0%ef%b8%8finside-a-failed-and-unjust-system-reuters-report-explains-how-the-trump-administration-destroyed-due-process-fundamental-fairness-humanity-in-the-u-s-immig/

The current mess is largely the result of Aimless Docket Reshuffling imposed on the Immigration Courts by unqualified politicos at the DOJ and their equally unqualified toadies at EOIR HQ. Also, DHS has more often than not ignored the realities of good docket management and the prudent exercise of prosecutorial discretion. It is not the fault of the vulnerable migrants and their lawyers victimized by this absurdly politicized, biased, and mal-administered system!

Restoration of justice at EOIR will require radical due process oriented changes starting with new, professional leadership from “practical scholars” in immigration and human rights as well as replacing BIA Judges with better qualified jurists selected from the ranks of those “practical scholars.” Quality control, expertise, competence, common sense, and human understanding are all lacking at today’s EOIR!

Judge Garland must “clean house!” Now!

🇺🇸⚖️🗽Due Process Forever!

PWS

03-12-21

🏴‍☠️INSIDE A FAILED AND UNJUST SYSTEM: Reuters Report Explains How The Trump Administration Destroyed Due Process, Fundamental Fairness, & Humanity In The U.S. Immigration Courts!

Mica Rosenberg
National Immigration Reporter, Reuters

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

https://www.reuters.com/article/us-usa-immigration-trump-court-special-r/special-report-how-trump-administration-left-indelible-mark-on-u-s-immigration-courts-idUSKBN2B0179

Reade Levinson, Kristina Cooke, & Mica Rosenberg report for Reuters:

(Reuters) – On a rainy September day in 2018, Jeff Sessions, then U.S. attorney general, addressed one of the largest classes of newly hired immigration judges in American history.

“The vast majority of asylum claims are not valid,” he said during a swearing-in ceremony in Falls Church, Virginia, according to his prepared remarks. If judges do their job, he said, “the number of illegal aliens and the number of baseless claims will fall.”

It was a clear message to the incoming class: Most of the immigrants who appear in court do not deserve to remain in the United States.

As U.S. President Joe Biden works to undo many of the restrictive immigration policies enacted by former President Donald Trump, he will confront one of his predecessor’s indelible legacies: the legion of immigration judges Trump’s administration hired.

The administration filled two-thirds of the immigration courts’ 520 lifetime positions with judges who, as a whole, have disproportionately ordered deportation, according to a Reuters analysis of more than 800,000 immigration cases decided over the past 20 years.

Judges hired under Trump ordered immigrants deported in 69% of cases, compared to 58% for judges hired as far back as the administration of President Ronald Reagan. Because hundreds of thousands of immigrants have cases before the court each year, that 11 percentage-point difference translates to tens of thousands more people ordered deported each year. Appeals are rarely successful.

Biden has promised to dramatically expand the courts by doubling the number of immigration judges and other staff. That’s a worthwhile effort, said Stephen Legomsky, a former chief counsel of the U.S. Citizenship and Immigration Services who is now a professor emeritus at Washington University School of Law in St. Louis. “But the challenge is going to be tremendous.”

Although there are no statutory limits on the number of judges who can be hired, expanding the court would be costly and could take years, immigration law experts said.

“The fact that these (Trump-era) judges are already in place inhibits him a great deal,” Legomsky said of Biden.

Stephen Miller, the key architect of Trump’s immigration agenda, told Reuters that the administration had aimed to hire more immigration judges as part of an effort to “create more integrity in the asylum process” and quickly resolve what he termed meritless claims to cut down on a massive backlog.

“Most of the people that are coming unlawfully between ports of entry on the southwest border are not eligible for any recognized form of asylum,” Miller said in an interview. “There should be a very high rejection rate.”

Under U.S. law, immigrants are eligible for asylum only if they can prove they were being persecuted in their home countries on the basis of race, religion, nationality, membership in a particular social group or their political opinions. Miller said many migrants arriving at the border are coming for economic reasons and present fraudulent asylum claims.

Sessions, who as attorney general had the final say in hiring immigration judges, told Reuters that “the problem is not with the Trump judges. The problem was with some of the other judges that seemed to not be able to manage their dockets, or, in many cases, rendered rulings that were not consistent with the law.

The Trump administration’s successors to Sessions, who was forced out in 2018, did not respond to requests for comment.

. . . .

“There has been a significant lack of basic understanding of immigration law and policy with many – not all – but many of the new hires under the Trump administration,” said Susan Roy, an attorney and former immigration judge appointed during the administration of President George W. Bush who has represented immigrants before some new judges.

Reuters spoke with eight other former immigration judges, five of whom served under Trump, who generally echoed her view. Sitting immigration judges are not permitted to speak to the media.

Even for judges with immigration backgrounds, the type of experience they have has been controversial. In 2017, a report commissioned by the Justice Department found a lack of diversity of experience among judges hired, due to an excess of former prosecutors here from Immigration and Customs Enforcement.

. . . .

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

Read the rest of the report at the link.

Hon. Sue Roy is a distinguished member of our Round Table of Former Immigration Judges 🛡⚔️ now in private practice representing asylum seekers and other migrants in Immigration Court.

Hon. Charles Honeyman, quoted elsewhere in the article, is also a member of the Round Table who actually was removed from a case for failing to carry out what he believed to be improper instructions from his “supervisors” who were implementing Sessions’s anti-immigrant policies.

Stephen Legomsky is a former USCIS Senior Executive and esteemed retired Professor who generally is acknowledged as one of American’s leading scholar-experts on immigration and human rights.

Judge Dana Leigh Marks, quoted elsewhere in the article, is a former President of the National Association of Immigration Judges who also successfully argued the landmark Supreme Court case INS v. Cardoza-Fonseca, which established the generous well-founded fear standard for asylum.

Sessions and Miller are notorious White Nationalist xenophobes who have neither represented asylum seekers nor been Immigration Judges. Their efforts to eradicate international norms and legal protections for vulnerable asylum seekers, and their particular bias against female asylum seekers, have been widely criticized and panned by human rights experts throughout the world, as well as enjoined or overruled by some U.S. Courts. They were architects of the widely condemned child separation policy and the New American Gulag (“NAG”).

EOIR is the failed DOJ agency that houses the dysfunctional Immigration Courts.

🇺🇸🗽⚖️Due Process Forever!

PWS

03-08-21

LATEST FROM “SIR JEFFREY” 🛡⚔️ — “Determining Political Opinion: Problems and Solutions — Jeffrey S. Chase | Opinions/Analysis on Immigration Law”

https://www.jeffreyschase.com/blog/2021/3/7/determining-political-opinion-problems-and-solutions

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

Determining Political Opinion: Problems and Solutions

Regarding political opinion, the refugee law scholar Atle Grahl-Madsen famously explained that refugee protection “is designed to suit the situation of common [people], not only that of philosophers…The instinctive or spontaneous reaction to usurpation or oppression is [as] equally valid” as the “educated, cultivated, reflected opinion.”1 A recent decision of the U.S. Court of Appeals for the Second Circuit provides an opportunity to reflect on this premise.

In Zelaya-Moreno v. Wilkinson, a young man was targeted for recruitment by MS-13. On two occasions, Zelaya directly announced to the gang’s members his reason for refusing to join: because gangs were bad for his hometown and country. Both times, the gang members responded by beating him, fracturing his arm the second time. They also threatened to kill him if he continued to refuse to join. The questions raised are whether Zelaya’s instinctive, simply-worded response expressed a political opinion, and if so, did that opinion form part of the reason for the beatings and threat?

The Immigration Judge recognized Zelaya’s statement to the gang to be a political opinion for asylum purposes. However, the IJ wasn’t persuaded from the record that Zelaya’s opinion was why the gang beat him. As expressed by the IJ, the beatings were caused by “Zelaya’s refusal to join the gang, irrespective of the reasons.” It doesn’t seem that the IJ considered whether the gang members imputed a political opinion to the act of refusal per se.

On appeal, the BIA took a far more extreme position, stating that because gangs are not political organizations and their activities are not political in nature, “expressing an opinion against their group is not expressing a political opinion.” This happens to be a position that EOIR and DHS (in defiance of much circuit case law and expert opinion to the contrary) later sought to codify in regulations that fortunately remain enjoined at present.

The Second Circuit in Zelaya-Moreno rejected the Board’s narrow view of political opinion. In fact, the court only last year, in its decision in Hernandez-Chacon v. Barr, recognized the act of resisting rape by members of the very same gang in El Salvador as the expression of a feminist, anti-patriarchy political opinion. Significantly, the victim in that case hadn’t stated any opinion to the gang members; it was only years later in front of the immigration judge that she gave her reason for resisting as “because I have every right to.”

As it has done in other decisions, the Second Circuit emphasized the need for a “complex and contextual factual inquiry” in political opinion determinations. It conducted a survey of cases in which political opinion was found, and of others in which it wasn’t. Unfortunately, the majority upheld the decision that Zelaya had not expressed a political opinion to the MS-13 members, stating that “[s]o far as the record shows, his objection to them is not rooted in any sort of disagreement with the policies they seek to impose nor any ideology they espouse.”

“So far as the record shows” is critical. I haven’t seen the record in this case, but I believe it might serve to demonstrate that while Grahl-Madsen correctly assigned equal validity to the opinions of the commoner and the intellectual, in practice, claims brought by members of the former group often require assistance from the latter in persuading adjudicators of the political nature of their words or actions.

For example, in Hernandez-Chacon, context for the petitioner’s resistance was provided by the affidavit of a lawyer and human rights expert who was able to articulate the patriarchal gender bias in Salvadoran society from which a political opinion could be gleaned from the asylum-seeker’s act of resistance alone. In another decision cited by the court, Alvarez-Lagos v. Barr, the Fourth Circuit was able to rely on the explanation of two experts on Central American gangs that the petitioner’s refusal to comply with extortion demands would be viewed by the gang as “political opposition” and “a form of political disobedience.”

In Zelaya-Moreno, the dissenting judge (in an opinion worth reading) was able to draw a political inference from the facts alone. It seemed that the two judges in the majority required more. But in finding the statements or actions of an applicant alone to be insufficient, is our present system of refugee protection genuinely designed to suit the situation of common people as well as philosophers?

In the view of the dissenting judge, yes. In that judge’s words, Zelaya “sought refuge here after standing up to MS members, refusing their demands that he join them, and informing them that he did not support them and considered them a blight on his native El Salvador. Our asylum laws protect individuals like Zelaya-Moreno who face persecution for such politically courageous stands.”

But in the view of the majority, Zelaya had expressed nothing “more than the generalized statement ‘gangs are bad.’ Thus, we cannot conclude that Zelaya holds a political opinion within the meaning of the statute, and therefore that the BIA erred in concluding that he was not eligible for asylum on this ground.” Would additional documentation providing the complex, contextual analysis the court mentioned earlier in its decision have delivered the two judges in the majority to the place already reached by their dissenting colleague?

The United Nations High Commissioner on Refugees is a good reference source on such issues. In its Guidance Note on Refugee Claims Relating to Victims of Organized Crimes, UNHCR stated at para. 45 that in its view, “political opinion needs to be understood in a broad sense to encompass “any opinion on any matter in which the machinery of State, government, society, or policy may be engaged.” It continued at para. 47 that powerful gangs such as MS-13 may exercise de facto power in certain areas, and their activities and those of certain State agents may be closely intertwined. At para. 50, UNHCR stated that “rejecting a recruitment attempt may convey anti-gang sentiments as clearly as an opinion expressed in a more traditional political manner by, for instance, vocalizing criticism of gangs in public meetings or campaigns.” And at para. 51, UNHCR added that “[p]olitical opinion can also be imputed to the applicant by the gang without the applicant taking any action or making a particular statement him/herself. A refusal to give in to the demands of a gang is viewed by gangs as an act of betrayal, and gangs typically impute anti-gang sentiment to the victim whether or not s/he voices actual gang opposition.”

Had this document been included in the record, would it have been enough to persuade the majority that the BIA had erred in rejecting Zelaya’s claim that he was targeted on account of his political opinion? If so, how many pro se asylum applicants would understand the need to supplement their claims to provide this context, or know what type of document would be sufficient, or how to find it?

The Seventh Circuit had foreseen this problem 15 years ago. In a 2006 decision, Banks v. Gonzales, the court opined that Immigration Court needs its own country experts, who would operate much as vocational experts do in disability hearings before the Social Security Administration’s judges. In my opinion, an alternative approach would be for EOIR to follow the example of the Immigration and Refugee Board of Canada, which maintains National Documentation Packages that are referenced in all cases by adjudicators of refugee claims.

During my time in government, I oversaw the creation of country condition pages on EOIR’s Virtual Law Library, which were built, and continue to be updated, by EOIR’s Law Library staff. However, EOIR did not see fit to make its contents part of the records of hearing in asylum cases. It is for this reason that UNHCR’s Eligibility Guidelines For Assessing International Protection Needs of Asylum Seekers in El Salvador, which contains much of the same language as the Guidance Note quoted above, and which expresses the specific conclusion that “persons perceived by a gang as contravening its rules or resisting its authority may be in need of international refugee protection on the grounds of their (imputed) political opinion,”2 is found on EOIR’s own website on the country page for “El Salvador,” yet wasn’t even considered in Zelaya-Moreno.

Considering the growing number of pro se applicants, the lack of legal resources available to those held in remote detention facilities, and the short time frame to prepare for hearings in certain categories of cases, I can’t see why the EOIR country pages should not be made part of the hearing record here as in Canada. It’s possible that such a policy would have led to a different result in Zelaya.

Furthermore, the BIA hears plenty of cases involving expert opinions supporting the conclusion that those resisting gangs such as MS-13 were harmed on account of their political opinion. Issuing precedent opinions recognizing the context that politicizes statements and actions such as Zelaya’s would result in much greater efficiency, consistency, and fairness in Immigration Court and Asylum Office adjudications.

Realistically, I harbor no illusions that the recent change in administration will bring about such enlightened changes to asylum adjudication anytime soon. But we must still continue to argue for such change. As the dissenting opinion in Zelaya stated in its conclusion: “[w]hile it may be too late for Zelaya-Moreno, the BIA and the Department of Justice can right this wrong for future asylum seekers. I urge them to reconsider their approach to anti-gang political opinion cases to ensure those who stand up to fearsome dangers are welcomed into this country rather than forced back to face torture and death.” As noted above, it wouldn’t take much effort on EOIR’s part to accomplish this.

Notes:

Atle Grahl-Madsen, The Status of Refugees in International Law, 228, 251 (1966) (quoted in Deborah E. Anker, The Law of Asylum in the United States (2020 Ed.) § 5:17, fn. 3.

UNHCR Eligibility Guidelines For Assessing International Protection Needs of Asylum Seekers in El Salvador at 29-30.

Copyright 2021 Jeffrey S. Chase. All rights reserved.

Reprinted with permission.

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

Truly wonderful, Jeffrey! One of your “best ever,” in my view! (And, they are all great, so that’s saying something.)

Imagine what could be achieved at the BIA with real judges, experts in asylum law, thoughtful, practical analysis, intellectual leadership, and inspiration to a fairer future, rather than the current Clown Show 🤡🦹🏿‍♂️ inventing bogus ways to ”get to no!”

As Jeffrey demonstrates, we could choose to protect rather than to reject. There has always been a tendency to do the latter at the DOJ; but, under White Nationalist nativist Jeff Sessions and his successors it has gone “hog wild” — rejection has been falsely portrayed as a “duty” rather than an extremely poor choice and an abdication of moral and legal responsibility!

Today’s BIA is basically incapable of problem solving. Time and again their strained, stilted anti-immigrant, anti-due-process, pro-worst-practices interpretations not only spell doom for those coming before them, but also promote inefficiency and backlogs in an already overwhelmed system. They also send messages of disdain and disrespect for the rights and humanity of people of color that redounds throughout our struggling U.S. Legal System.

I’ll keep saying it: Whatever positive message Judge Garland and his team at DOJ intend to send about racial justice will be fatally undermined as long as “Dred Scottification” and disdain for the due process rights of migrants is the “order of the day” at the one Federal Court System the DOJ runs: The U.S. Immigration Court! As long as EOIR is a “bad joke” the rest of Judge Garland’s reforms will fall flat!

The right judges 🧑🏽‍⚖️ at the BIA could turn this thing around! Remains to be seen if it will happen. But, it’s not rocket science. It just requires putting the right folks in charge, in place, and giving them the support and independence to engage in “creative problem solving.”

Judge Garland should be confirmed next week. And the confirmation hearings for Lisa Monaco (DAG) and Vanita Gupta (AAG) have been scheduled.

Some additional points:

The dissenter in the Second Circuit’s decision in Zelaya-Moreno v. Wilkinson is Judge Rosemary Pooler. Judge Pooler has had a long and distinguished career. Perhaps she would like to cap it off by becoming Chair of the BIA and leading by example;
Shows the importance of experts, which is probably why the BIA has gone out of its way to demean them and encourage IJs to ignore their evidence;
Jeffrey’s analysis supports my “Better BIA for a Better America” 🇺🇸program;
As Justice Sotomayor says: “It is not justice.” That’s my view on today’s EOIR!

Due Process Forever! ⚖️🗽

PWS

03-07-21

🏴‍☠️BIA CONTINUES TO SPEW FORTH ERRORS IN LIFE OR DEATH ☠️ ASYLUM CASES, SAYS 4TH CIR. — “Three-In-One” — Improperly Disregarding Corroborating Evidence; Incorrect Legal Standard On Past Persecution; Wrong Nexus Finding! — Arita-Deras v. Wilkinson

https://www.ca4.uscourts.gov/opinions/191978.P.pdf

Arita-Deras v. Wilkinson, 4th Cir., 03-05-21, Published

PANEL: GREGORY, Chief Judge, and AGEE and KEENAN, Circuit Judges

OPINION BY: Judge Barbara Milano Keenan

KEY QUOTE:

Maria Del Refugio Arita-Deras, a native and citizen of Honduras, petitions for review of a final order of removal entered by the Board of Immigration Appeals (the Board).1 The Board affirmed an immigration judge’s (IJ) conclusion that Arita-Deras was not eligible for asylum, withholding of removal, or protection under the Convention Against Torture (CAT). The Board: (1) agreed with the IJ that Arita-Deras failed to support her claims with sufficient corroborating evidence; (2) found that Arita-Deras failed to prove that she suffered from past persecution because she had not been harmed physically; and (3) concluded that Arita-Deras failed to establish a nexus between the alleged persecution and a protected ground.

Upon our review, we conclude that the Board improperly discounted Arita-Deras’ corroborating evidence, applied an incorrect legal standard for determining past persecution, and erred in its nexus determination. Accordingly, we grant Arita-Deras’ petition and remand her case to the Board for further proceedings.

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

After eight years of bouncing around the system at various levels THIS “Not Quite Good Enough For Government Work” error-fest is what we get from EOIR! As I keep saying, no wonder they are running a 1.3 million case backlog, clogging the Circuit Courts with incredibly shoddy work, and in many cases sending vulnerable refugees back to death or torture under incorrect fact findings and blatantly wrong legal interpretations!

Again, nothing profound about this claim; just basic legal and analytical errors that often flow from the “think of any reason to deny” culture. EOIR just keeps repeating the same basic mistakes again and again even after being “outed” by the Circuits!

This case illustrates why the unrealistically high asylum denial numbers generated by the biased EOIR system and parroted by DHS should never be trusted. This respondent, appearing initially without a lawyer, was actually coerced by an Immigration Judge into accepting a “final order” of removal with a totally incorrect, inane, mis-statement of the law. “Haste makes waste,” shoddy, corner cutting procedures, judges deficient in asylum legal knowledge, and a stunning lack of commitment to due process and fundamental fairness are a burden to our justice system in addition to being a threat to the lives of individual asylum seekers.

Only when she got a lawyer prior to removal was this respondent able to get her case reopened for a full asylum hearing. Even then, the IJ and the BIA both totally screwed up the analysis and entered incorrect orders. Only because this respondent was fortunate enough to be assisted by one of the premier pro bono groups in America, the CAIR Coalition, was she able to get some semblance of justice on appeal to the Circuit Court!

I’m very proud to say that a member of the “CAIR Team,” Adina Appelbaum, program Director, Immigration Impact Lab, is my former Georgetown ILP student, former Arlington Intern, and a “charter member” of the NDPA! If my memory serves me correctly, she is also a star alum of the CALS Asylum Clinic @ Georgetown Law. No wonder Adina made the Forbes “30 Under 30” list of young Americans leaders! She and others like her in the NDPA are ready to go in and start cleaning up and improving EOIR right now! Judge Garland take note!

Despite CAIR’s outstanding efforts, Ms. Arita-Deras still is nowhere near getting the relief to which she should be entitled under a proper application of the law by expert judges committed to due process. Instead, after eight years, she plunges back into EOIR’s 1.3 million case “never never land” where she might once again end up with Immigration Judges at both the trial and appellate level who are not qualified to be hearing asylum cases because they don’t know the law and they are “programmed to deny” to meet their “deportation quotas” in support of ICE Enforcement.

Focus on it folks! This is America; yet individuals on trial for their lives face a prosecutor and a “judge” who are on the same side! And, they are often forced to do it without a lawyer and without even understanding the complex proceedings going on around them! How is this justice? It isn’t! So why is it allowed to continue?

Also, let’s not forget that under the recently departed regime, EOIR falsely claimed that having an attorney didn’t make a difference in success rates for respondents. That’s poppycock! Actually, as the Vera Institute recently documented the success rate for represented respondents is an astounding 10X that of unrepresented individuals. In any functional system, that differential would be more than sufficient to establish a “prima facie” denial of due process any time an asylum seeker (particularly one in detention) is forced to proceed without representation.

🇺🇸⚖️🗽🧑🏽‍⚖️VERA INSTITUTE RECOMMENDS FEDERAL DEFENDER PROGRAM FOR IMMIGRANTS — Widespread Public Support For Representation In Immigration Court!

Yet, this miscarriage of justice occurs every day in Immigration Courts throughout America! Worse yet, EOIR and DHS have purposely “rigged” the system in various ways to impede and discourage effective representation.

To date, while flagging EOIR for numerous life-threatening errors, the Article IIIs have failed to come to grips with the obvious: The current EOIR system provides neither due process nor fundamental fairness to the individuals coming before these “courts” (that aren’t “courts” at all)!

Acting AG Wilkinson has piled up an impressive string of legal defeats in immigration matters in just a short time on the job. It’s going to be up to Judge Garland to finally make it right. It’s urgent for both our nation and the individuals whose rights are being stomped upon by a broken system on a daily basis!

🇺🇸⚖️🗽Due Process Forever! Failed Courts Never!

PWS

03–05-21

🇺🇸🗽NEW VISION: Biden Administration Reportedly Plans To Turn Gulags Into “Rapid Processing Centers!”

https://apple.news/A_66ulAuzRTeEZzT59d_vTw

Celine Castronuovo reports in The Hill:

The Department of Homeland Security (DHS) is reportedly drafting plans to transform family migrant detention centers in South Texas into screening hubs as the Biden administration faces a growing number of migrants at the southern border.

The Washington Post, which obtained internal DHS draft documents outlining the plans, reported Thursday that senior ICE official Russell Hott informed staff in an email this week that the number of unaccompanied minors and families arriving in the U.S. in 2021 is “expected to be the highest” recorded “in over 20 years.”

According to the Post, Hott added that with more than 500 family members arriving per day, the shift from detention to Ellis Island-style processing centers “may not be sufficient to keep pace with apprehensions,” with the potential for some migrants to be housed in hotels.

DHS officials, who spoke to the Post on the condition of anonymity because they were not authorized to speak publicly, said the transition to rapid processing and release centers has already begun.

The reported change comes as the latest move in President Biden’s efforts to reform the U.S. immigration system and keep up with the rising number of migrants crossing into the country amid shortages of bed space and personnel at detention centers.

The reported plans also mark a shift from policies under the Obama and Trump administrations, when most migrant families were quickly released or deported upon arriving in the U.S., with some being held in dormitory-style centers for extended periods of time as they awaited immigration proceedings.

The Biden administration has publicly said it is reviewing how family detention facilities are used, though the Post noted that the administration last week told a federal judge that the policies had not yet changed.

. . . .

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

Read the full article at the link.

The three keys are: 1) screening for COVID, background, and credible fear of persecution; 2) matching asylum applicants with representation, which promotes nearly “perfect attendance,” at hearings; 3) radically and rapidly reforming the Immigration Court system so that the Immigration Judges are “practical experts” on asylum law and eliminating the huge number of “deadwood” cases clogging dockets so Immigration Judges can conduct asylum hearings for recent arrivals on a timely, consistent, predictable basis, with an emphasis on due process and getting the result correct at the initial merits hearing.

🇺🇸⚖️🗽Due Process Forever!

PWS

03-05-21

THE GIBSON REPORT — 03-01-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — FEATURING: Under The EOIR Big Top 🎪 Robed TV Carnival Barkers Hand Out Death Sentences ☠️ With Ignorance, Indolence, Indifference, & Insult To Injury!

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: Hearings in non-detained cases at courts without an announced date are postponed through, and including, March 19, 2021 (The timing of postponement notices has been inconsistent and it is unclear when the next announcement will be. EOIR announced 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28). There is no announced date for reopening NYC non-detained at this time.

USCIS Office Closings, Including Weather

TOP NEWS

Biden revokes Trump ban on many green card applicants

Reuters: U.S. President Joe Biden on Wednesday revoked a proclamation from his predecessor that blocked many green card applicants from entering the United States.

Biden to allow migrant families separated under Trump to reunite in the U.S.

Politico: ACLU Executive Director Anthony D. Romero was quick to welcome Mayorkas’ announcement, but cautioned that “the devil is in the details and Secretary Mayorkas has to shed all the caveats and qualifications around his announcement and follow through with everything that’s necessary to right the wrong.” See also Lawyers have found the parents of 105 separated migrant children in past month.

Biden to Discuss Border and Other Issues With Mexican President

NYT: The two leaders, who previously talked about ways to stem migration in a call on Jan. 22, just days after Mr. Biden took office, are expected to discuss addressing the root causes of persecution and poverty that force Central American families to flee to the United States.

First migrant facility for children opens under Biden

WaPo: Government officials say the camp is needed because facilities for migrant children have had to cut capacity by nearly half because of the coronavirus pandemic. At the same time, the number of unaccompanied children crossing the border has been inching up, with January reporting the highest total — more than 5,700 apprehensions — for that month in recent years.

Federal judge deals Biden another blow on 100-day deportation ban

Politico: U.S. District Judge Drew Tipton granted a preliminary injunction that blocks the moratorium the Biden administration announced on its first day.

ICE investigators used a private utility database covering millions to pursue immigration violations

WaPo: U.S. Immigration and Customs Enforcement officers have tapped a private database containing hundreds of millions of phone, water, electricity and other utility records while pursuing immigration violations, according to public documents uncovered by Georgetown Law researchers and shared with The Washington Post.

The Trump Administration’s Cruelty Haunts Our Virtual Immigration Courts

InTheseTimes: According to the Executive Office for Immigration Review (EOIR) — the Justice Department agency that oversees these immigration adjudication centers — nearly 300,000 asylum cases have been heard via videoconference in the past two years.

In The Story Of U.S. Immigration, Black Immigrants Are Often Left Out

NPR: Nana Gyamfi, Executive Director of the Black Alliance for Just Immigration, tells NPR’s Scott Simon about challenges Black immigrants to the U.S. face.

Consumer watchdog sues immigration services company, claiming it preys on detainees

NBC: The Consumer Financial Protection Bureau on Monday filed a lawsuit against Libre by Nexus, claiming the company is preying on immigrants through a bond scam that traps participants into paying expensive fees.

The five biggest omissions in massive Biden immigration bill

Examiner: Protocols for caring for families and children, border wall infrastructure, decriminalizing illegal immigration, immigration courts, employment-based immigration, and private detention facilities were not addressed in either the House or Senate versions of the bill.

LITIGATION/CASELAW/RULES/MEMOS

USCIS Launches Pilot Program to Facilitate Attorney or Representative Remote Participation in an Asylum Interview

USCIS has launched a temporary pilot program to facilitate attorney or representative participation in an asylum interview from a remote location via video or telephone. The pilot program is available only at the Arlington, Boston, Miami, Newark, and Newark/Manhattan Branch asylum offices. AILA Doc. No. 21030131

2nd Circ. Judge Dings Majority’s ‘Uncharitable’ Asylum Ruling

Law360: A fractured Second Circuit panel tossed an El Salvadoran asylum seeker’s appeal, finding that his opposition to gangs was not a political opinion and that he could avoid future beatings, a view the dissenting judge called an “uncharitable” interpretation of the case.

BIA Rules on Special Rule Cancellation of Removal

BIA ruled that an applicant for special rule cancellation of removal under INA §240A(b)(2) based on spousal abuse must demonstrate both that the abuser was their lawful spouse and was either a U.S. citizen or LPR at the time of the abuse. Matter of L-L-P-, 28 I&N Dec. 241 (BIA 2021) AILA Doc. No. 21022432

Justices ‘Baffled,’ ‘Confused’ By Asylum Cases

Law360: A pair of thorny immigration cases “baffled” and “confused” the inquisitive justices of the U.S. Supreme Court Tuesday as they wrestled with when testimony of asylum applicants must be presumed to be credible.

District Court Indefinitely Stops Government from Executing a 100-Day Moratorium on Removals

A district court grants nationwide preliminary injunction to prohibit enforcement and implementation of the 100-day pause on removals as outlined in the 1/20/21 DHS memo. (State of Texas v. USA, et al., 2/23/21) AILA Doc. No. 21012634

Presidential Proclamation Revoking Immigrant Visa Ban

On 2/24/21, President Biden issued Proclamation 10149 revoking Proclamation 10014, section 1 of Proclamation 10052, and section 1 of Proclamation 10131, which suspended immigrant visas due to the 2019 novel Coronavirus outbreak. (86 FR 11847, 3/1/21) AILA Doc. No. 21022490

DOS Provides Update on the Phased Resumption of Routine Visa Services

DOS updates its announcement and FAQs on the phased resumption of visa services following the rescission of Presidential Proclamation 10014, which suspended the entry of certain immigrant visa applicants into the United States. AILA Doc. No. 20071435

DOJ Appeals Ruling Limiting Immigrant Detentions Without a Court Hearing

Documented: Judge Alison Nathan’s Nov. 30 ruling at U.S. District Court in Manhattan was the first to draw a constitutional line on how long an Immigration and Customs Enforcement detainee waits for an initial hearing before a judge.

ICE Can’t Keep Transferred Detainee Out Of Fla. Class Action

Law360: A Florida federal judge ruled Friday that a Mexican citizen can join a class action challenging U.S. Customs and Immigration Enforcement detainee conditions at three South Florida facilities during the COVID-19 pandemic, saying the agency cannot escape jurisdiction by transferring him to a facility across the country.

Council Sues Customs and Border Protection to Release Records of Militarized Raids on Humanitarian Aid Station

AIC: The Council and partners filed a Freedom of Information Act (FOIA) lawsuit to compel the government to release documentation of three raids on a humanitarian aid station in the deadly desert in Southern Arizona.

HHS Withdrawal of Request for Comment on Proposed Revisions to Forms for Sponsors of Unaccompanied Children

The Department of Health and Human Services published a notice stating that it is no longer pursuing changes to the forms for sponsors of unaccompanied children on which it had requested public comment on 1/5/21 at 86 FR 308, and therefore withdraws its request for comment. (86 FR 11537, 2/25/21) AILA Doc. No. 21022531

DHS Secretary Mayorkas Announces Family Reunification Task Force Principles and Executive Director

DHS: Secretary Mayorkas announced that Michelle Brané will serve as the Task Force’s Executive Director. Most recently, she served as the senior director of the Migrant Rights and Justice program at the Women’s Refugee Commission.

RESOURCES

·         Correction: The ERO ombudsman email that was circulating last week had a typo and should be: EROOmbudsman@ice.dhs.gov.

·         AILA: Policy Brief: Walled Off: How USCIS Has Closed Its Doors on Customers and Strayed from Its Statutory Customer Service Mission

·         AILA: Current Leadership of Major Immigration Agencies

·         AILA: Practice Alert: ICE Interim Guidance on Civil Immigration Enforcement and Removal Priorities

·         AILA: Practice Pointer: Employment Verification During the COVID-19 Outbreak

·         AILA: Summary of the U.S. Citizenship Act

·         AILA: Section-by-Section Summary of the U.S. Citizenship Act

·         AILA: Podcast: Representing a Mentally Ill Client Facing Removal Proceedings

·         AILA: Resource Related to Lawsuit Granting Preliminary Relief for Diversity Visa Applicants

·         ASISTA: New Advisory: Overview of U.S. Citizenship Act of 2021 & Its Impact on Immigrant Survivors

·         Black Immigrants Got Talent

·         CGRS: Children’s Asylum Manual: A Resource for Practitioners

·         CLINIC: Biden Administration Rescinds 2018 USCIS Notice to Appear Guidance

·         CLINIC: Department of State Shifts Human Rights Reports Comparison Charts

·         CMS: New Study about Immigrant Health in New York City

·         CRS: Are Temporary Protected Status Recipients Eligible to Adjust Status?

·         GAO: Actions Are Needed to Address the Cost and Readiness Implications of Continued DOD Support to U.S. Customs and Border Protection

·         ICYMI: Important Policy & ASISTA Updates

·         ILRC: What Every Noncitizen Must Know About Cannabis and Immigration

·         Immigration Mapping: From Hirabayashi to DACA

·         LGBT Adult Immigrants in the United States

·         LSNYC Practice Advisory on continuances: fourth edition of the sample motion

·         USCIS: Resources on U.S. Citizenship for Adult Adoptees

EVENTS

3/2/21 SIJS-based Adjustment of Status before EOIR

3/2/21 Creative Evidentiary Solutions for Asylum Cases

3/3/21 Thinking Beyond Resettlement: Are Complementary Pathways for Refugees the Answer?

3/4/21 TPS Updates

3/4/21 An Immigration Practitioner’s Guide to Ethics

3/5/21 Matter of A-B-: Litigation Update and Strategy Discussion

3/5/21-3/26/21 Webinar Series: Selected Issues in Inadmissibility

3/8/21 How Refugee Protections Fail Migrant Women: Personal is no Longer Political

3/8/21 NYIC: DOJ Recognition & Accreditation

3/10/21 All About DOJ Recognition and Accreditation

3/10/21 A Celebration of Women in Immigration Law

3/10/21 Deported Veterans Symposium

3/12/21 Strategies and Tactics for Successful Immigration Appeals

3/16/21 Representing Immigrants in Family Court

3/16/21 Ethical Issues in Crisis Lawyering: Representation and Advocacy Challenges

3/16/21 Pending Lawsuits: Where Are We Now? Keeping Up with BIG Litigation

3/17/21-3/18/21 Legal Remedies for Immigrant Survivors: Introductory Seminar Series – Part II: Preparing The Case

3/17/21 Incorporating Holistic Services in an Immigration Legal Services Program

3/18/21 CGRS Webinar: Asylum Policy and Litigation Update Under the Biden Administration

3/23/21 Complex Naturalization: How to Get Your Clients to Citizenship

3/23/21 Understanding the Conditional Permanent Residence Petition (Form I-751)

3/24/21 Privacy at Risk: Searches of Electronic Devices at Ports of Entry and Beyond

3/30/21 Public Charge and the Affidavit of Support

3/30/21-5/14/21 Comprehensive Overview of Immigration Law (COIL)

4/5/21 Overview of Immigration Law Training

4/5/21-4/26/21 Webinar Series: Selected Issues in U Nonimmigrant Status

4/15/21 DACA

4/20/21 Hot Topics in Naturalization Adjudications

4/21/21 Working with Domestic Violence Immigrant Survivors: The Intersection of Basic Family Law, Immigration, Benefits, and Housing Issues in California 2021

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

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

5/6/21 Hot Topics in Asylum Law

5/10/21 All About DOJ Recognition and Accreditation

5/13/21 Marijuana and Immigrants

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

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

5/26/21 Hot Topics in Removal Defense

6/1/21 VAWA Adjustment of Status Fundamentals

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

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

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

6/15/21 U Visa Hot Topics

6/22/21 Defending Immigration Removal Proceedings 2021

6/30/21 Immigration Update – June 2021

7/22/21 Defending Immigration Removal Proceedings 2021

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

ImmProf

Monday, March 1, 2021

·         Join the Deported Veterans Symposium on March 10-12, 2021

·         LGBT Adult Immigrants in the United States

·         Jennifer Lee Koh Joins Pepperdine Law Faculty

·         Democrats Strategizing on Immigration Reform, Piecemeal or the Whole Enchilada?

Sunday, February 28, 2021

·         Year of the Ox’s “Viral” Song Gains Traction Amid Rise in Anti-Asian Violence

·         Brookings Institution: Biden’s Immigration Reset

Saturday, February 27, 2021

·         At the Movies: Minari (2020)

·         Immigration Article of the Day: Freedom of Movement, Migration, and Borders by Jaya Ramji-Nogales & Iris Goldner Lang

Friday, February 26, 2021

·         Vera Institute — A Federal Defender Service for Immigrants Why: We Need a Universal, Zealous, and Person-Centered Model

·         Black Immigrants Got Talent (BIG Talent)

·         At the Movies: The Marksman (2021)

·         Fortress (North) America

·         Immigration Mapping: From Hirabayashi to DACA

·         At the Movies: Alien Terminology and Change the Subject, a 2019 Documentary

·         Immigration Article of the Day: Fee Retrenchment in Immigration Habeas by Seth Katsuya Endo

Thursday, February 25, 2021

·         Big Strides In Reunifying Separated Migrant Familes; Long Ways Still To Go

·         Call For Papers: Forced Migration Review on “Public health and WASH”

·         Immigrant Leaves Maplewood Church After 3½ Years As ICE Decides Not To Deport Him

·         Sister Simone Campbell on Immigration Reform

·         #WeCanWelcome Asylum Seekers: Meet Mirna Linares de Batres

·         Throwback Thursday: My Trials by Judge Paul Grussendorf

·         Immigration Article of the Day: Tried and (Inherently) Prejudiced: Disposing of the Prejudice Requirement for Lack of Counsel in Removal Proceedings by Ayissa Maldonado

Wednesday, February 24, 2021

·         President Biden revokes Trump bans on many green card applicants, temporary foreign workers

·         Court Enjoins Biden Administration’s 100 Day Removal Pause

·         Ahilan Arulanantham joins UCLA School of Law as co-faculty director of the Center for Immigration Law and Policy

·         The five biggest omissions in massive Biden immigration bill

·         Immigration Article of the Day: Capital Controls as Migrant Controls by Shayak Sarkar, California Law Review, Forthcoming

Tuesday, February 23, 2021

·         From ‘aliens’ to ‘noncitizens’ – the Biden administration is proposing to change a legal term to recognize the humanity of non-Americans

·         Congressmember Debbie Leski’s Racist Remarks

·         Teaching Immigration Law: Law School Clinics in the US and UK

·         Immigration Article of the Day: Statelessness as Rhetoric: The Case for Revisioning Statelessness in Our Statist World by Francis Tom Temprosa

Monday, February 22, 2021

·         From the Bookshelves: Migrant Conversions:  Transforming Connections between Peru and South Korea by Erica Vogel

·         Supreme Court News: Court to Review Public Charge Case, Hear Asylum Credibility Oral Arguments Tomorrow

·         USCIS restores citizenship and naturalization test

·         Immigration Lawyers Toolbox®

·         Code Compare on Lexis Nexis

·         Human Rights Watch — US: Take New Approach at Mexico Border

·         In Challenging Times, A Call for African American/Asian American Unity

·         Former Trump senior advisor Stephen Miller slams Biden immigration proposal

·         Immigration Article of the Day: The Political (Mis)representation of Immigrants in Voting by Ming Hsu Chen and Hunter Knapp

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

Check out “Top News #7.” It’s an article by Arvind Dilawar in In These Times about “EOIR’s Black Sites,” 🏴‍☠️ euphemistically known as “Immigration Adjudication Centers” where imposters masquerading as “judges” “process” cases by TV on the deportation assembly line, often without regard to the law, the facts, and the humanity of their victims and the lawyers representing them.

Here’s an excerpt:

Lisa Koop, associate director of legal services for the National Immigrant Justice Center (NIJC), stood with her client in immigration court in September 2019. The client (name withheld for privacy) had escaped violence in Central America and fled to the United States with her young daughter. Here, they were taken into custody by immigration authorities, which landed them in this courtroom, waiting to hear whether they would be granted asylum.

They were initially scheduled with a traditional, in-person immigration judge. But that judge retired and the case was transferred to an “immigration adjudication center.” This new judge video conferenced in. Koop says the judge did not allow an opening statement, was not familiar with relevant precedent and did not ask Koop to address any particularities of the case in the closing argument. The judge ruled that, while the case was “very sad,” it did not meet the criteria for asylum, then wished Koop’s client “good luck” following deportation.

This outrageous mockery of due process, fundamental fairness, and real judicial proceedings is ongoing, in the Department of “Justice” — yes, folks, the Chief Prosecutor of the U.S. maintains his own “wholly owned” “court system” in a nation where justice supposedly is unbiased and impartial — more than five weeks into the Biden Administration.

Last week, we heard a refreshingly emotional expression of personal gratitude and recognition of the essential role of refugee protections from Judge Merrick Garland.

What we haven’t heard to date is a recognition that what will soon be “his” DOJ treats refugees (in this case vulnerable asylum seekers) with disdain and disrespect “revved up” by four years of White Nationalist abuses heaped on them by Judge Garland’s corrupt predecessors as AGs for Trump. We also have yet to hear what Judge Garland plans to do about the deadly and disreputable “EOIR Clown Show” 🤡🦹🏿‍♂️ which will soon be operating under his auspices and which, whether he realizes it or not, will form the the major part of his legacy to American Justice.

Judge Garland should call up folks like Lisa Koop at NIJC, Claudia Valenzuela at American Immigration Council, and their colleagues to get a “real life dose” of what it means to be or represent an asylum seeker in today’s dysfunctional and disreputable Immigration “Courts” that actually are 21st Century Star Chambers.

Star Chamber Justice — “Justice”
Star Chamber
Style

Better yet, he should replace the current EOIR Senior Executives and BIA Appellate Immigration Judges with Koop, Valenzuela, and others like them — “practical experts” in due process, equal justice, immigration, and human rights — who would restore and advance judicial integrity and fairness to a system that has abandoned and trampled upon those fundamental values!

Grim Reaper — G. Reaper Approaches ICE Gulag With “Imbedded Captive Star Chamber” Run By EOIR, For Their “Partner” Reaper
Image: Hernan Fednan, Creative Commons License

As stated at the end of Dilawar’s article: “Asylum-seekers are wrongfully denied asylum, and justice is not served.” Duh!

🇺🇸🗽⚖️Due Process Forever! End the EOIR Clown Show!🤡🦹🏿‍♂️🎪☠️

PWS

03-02-21

☠️👎🏻TWO STEPS FORWARD, ONE STEP BACK: Professor César García Hernández Analyzes Order Extending Ban On Biden’s Deportation Bar — Texas v. USA

Professor César Cuauhtémoc García Hernández
Denver Sturm Law

From: César García Hernández <ccgarciahernandez@gmail.com>

Sent: Wednesday, February 24, 2021 1:52 PM

To: IMMPROF (UCLA) (immprof@lists.ucla.edu) <immprof@lists.ucla.edu>

Subject: [immprof] 100-day removal pause enjoined

Colleagues,

Judge Tipton in the Southern District of Texas enjoined the 100-day removal pause. The 105-page order has something for everyone. For the history fans, there are references or citations to John Marshall, Joseph Story, and James Madison. For the federalism aficionados, there’s a description of the three branches of government and an explanation about the relationship between the federal government and the states. For the administrative law scholars and Bluebook fans, the proposition that “ICE is an agency within DHS” is supported by a footnote, a citation, and a parenthetical explanation. And for anyone interested in bilingual education, you’ll note that “regular” students cost Texas one amount and students enrolled in the state’s bilingual program cost another amount.

The order (and my analysis) are available at crimmigration.com.

César

—

César Cuauhtémoc García Hernández
Professor of Law
University of Denver
crimmigration.com

(he/him/his/el)

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

The case name says it all, particularly in light of the past two weeks. Indeed, “Texas v. The People” would be equally fitting. GOP misrule and the vile shenanigans of GOP politicos, like Texas AG Ken Paxton (who also fled the state during the crisis he and his party helped cause) has real life consequences. It kills and harms U.S. citizens of all political persuasions in addition to foreign nationals in our country.

Note that the order does not purport to stop DHS or EOIR from granting stays of removal on a case by case basis.

Notwithstanding the flaws in Judge Tipton’s reasoning, cogently pointed out by Cesar, I wouldn’t put much stock in the chances that the right-wing dominated Fifth Circuit or the Supremes will rein in Tipton and other righty jurists. I predict that GOP jurists oft-expressed grave concerns about the effect of nationwide injunctions will dissipate now that they are being used as a tool to undermine the Biden Administration’s attempts to return rationality and humanity to our justice system.

The deep problems in the Article III Judiciary, aggravated by four years of bad appointments by Trump & Mitch, reinforce the pressing need for immediate Immigration Court reform, starting with replacing the BIA. That is the most pressing task facing the Administration on the judicial front. The EOIR judiciary is one that the Biden Administration has complete authority to fix with better judges. Now, not later!

And, with better judges at EOIR, there will be fewer bad legal decisions thrown into the Article III “lottery.” Moreover, as I continue to point out, it will give the Administration a much-needed pool of diverse, readily identifiable, talented, experienced, progressive, due-process/human rights committed jurists to draw on for Article III appointments. Additionally, it sets the stage for legislation to create an independent Article I U.S. Immigration Court.

Can advocates for racial justice, human rights, and immigrants’ rights finally get the message across to Judge Garland about the urgent need to act decisively? Or, like the Obama Administration, will this turn out to be another golden opportunity for justice squandered?

Unfortunately, I could find little in this week’s confirmation hearings to visibly show that Judge Garland “got” the connection between the refuge that he and his family were so grateful for and the continuing unconscionable mess at EOIR.

Indeed, if Judge Garland and his family showed up at our borders today seeking refuge from persecution, they would unceremoniously have been loaded onto a plane and “orbited” back to the persecution from which they fled without any process at all, let alone “due process of law.” Even if they had gotten a hearing, an EOIR “judge” somewhere along the line would undoubtedly have found a “reason to deny” regardless of the need for protection.

For a good measure, they probably would have been mocked as “criminals, line jumpers, and job stealers” by GOP politicos and their toadies still stashed throughout our broken and compromised immigration bureaucracy. Their lives would have been treated as worthless; their removal to persecution, harm and possible death, just another “statistic” to tout in connection with false claims to having achieved “border security!”

Use the “overseas refugee program?” Probably not. Although Biden has pledged to restart refugee admissions, as a practical matter our once proud and highly efficient refugee processing system is currently in tatters after four years of intentional abuse inflicted by the defeated regime.

Every day that the ongoing problems at EOIR remain unresolved is another day of injustice for refugees and other migrants, as well as another day of frustration and abuse heaped on those attempting to help them achieve justice.

🇺🇸⚖️🗽Due Process Forever!

PWS

02-25-21

⚖️🗽🇺🇸JUDGE GARLAND ACKNOWLEDGES REFUGEE HERITAGE — Does He Recognize That As He Testifies, Many Of His “Soon-To-Be Judges” @ EOIR Are Intentionally Screwing Vulnerable Asylum Seekers, Harassing Their Pro Bono Attorneys, Carrying Out Miller’s White Nationalist Agenda, & Otherwise Mocking Due Process, Fundamental Fairness, & Equal Justice For Persons Of Color?

https://www.washingtonpost.com/nation/2021/02/22/merrick-garland-finally-speaks-his-words-were-worth-wait/

Robin Givhan writes @ WashPost:

. . . .

For the Republicans, justice is not something that “rolls down like waters,” it’s something that comes down like a hammer.

This was a failure that Sen. Cory Booker (D-N.J.) aimed to make clear when he asked Garland whether he was familiar with a biblical reference to justice that advises to “act justly and to love mercy.” Much of Booker’s questioning centered around racism within the criminal justice system — the disproportionate arrests of minorities, lousy legal representation for the poor, sentencing imbalances and the issue that caused Kennedy such befuddlement, implicit bias.

Garland acknowledged these issues, the flaws in the system, the need to change. And then he told in public, the story he’d told Booker in private about why he wanted to leave a lifetime appointment on the federal bench to do this job. It’s the most reasonable question, but one that so often is never asked: Why do you want to do this?

Garland acknowledged these issues, the flaws in the system, the need to change. And then he told in public, the story he’d told Booker in private about why he wanted to leave a lifetime appointment on the federal bench to do this job. It’s the most reasonable question, but one that so often is never asked: Why do you want to do this?

“I come from a family where my grandparents fled antisemitism and persecution,” Garland said. And then he stopped. He sat in silence for more than a few beats. And when he resumed, his voice cracked. “The country took us in and protected us. And I feel an obligation to the country, to pay back.”

“This is the highest, best use of my one set of skills,” Garland said. “And so I want very much to be the kind of attorney general you’re saying I could be.”

And that would be one focused on protecting the rights of the greatest and the least — and even the worst. Punishment is part of the job. But it’s not the definition of justice.

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

Read Robin’s complete article at the link. She can write! So delighted the Post got her off the “fashion beat” where her talents were being squandered, and got her onto more serious stuff!

Judge Garland’s awareness and humility are refreshing. But, unless he takes immediate action to redo EOIR and the rest of the DOJ’s immigration kakistocracy, it won’t mean much.

Judge, it could have been YOUR family forced to suffer kidnapping, extortion, murder threats, family separation, and other overtly cruel and inhuman treatment in squalid camps in Mexico, waiting for “hearings” that would never come before “judges” known for denying almost 100% of claims regardless of merit! YOUR family’s plea for refugee could have been rejected by some nativist bureaucrat or “hand-selected by the prosecutor” “Deportation Judge” for specious, biased reasons!

YOUR family was welcomed! But what if the only thought had been how to “best deter” “you and others like you” from coming?

Maybe because you and yours are White and hail from Eastern Europe, the “rule of law” has a different meaning and impact than it would if you were Brown, Black, or some other “non-White” skin color and had the misfortune to be from a “shithole” country where we have no concern for what happens to humanity? Or, worse yet, what if your family’s claim had been based on your Grandmother’s gender status? You would really be out of luck under today’s overtly misogynist approach to refugee law flowing out of EOIR!

Then, where would you and your nice family be today? Would you even be? THOSE are the questions you should be asking yourself!

Unfortunately, it’s easy to see that folks like Cotton, Hawley, Cruz, and Kennedy will be deeply offended if you attack their White Nationalist privilege, views, and agendas in any meaningful way.

And, if you actually make progress in holding the Capitol insurrectionists accountable, you’ll have to deal with the unapologetic, disingenuous, anti-democracy, insurrectionist actions of folks like Hawley and Cruz. That won’t be too “bipartisanly popular” with a GOP gang that just overwhelmingly worked and voted to ignore the evidence and “acquit” the “Chief Insurrectionist.” Who, by the way, was a main purveyor of the institutionalized racism that infects EOIR and the rest of the DOJ. It’s no real secret that “America’s anti-democracy party” aids, abets, encourages, and exonerates White Supremacists and domestic terrorists.

In the GOP world, “mercy” and “due process” are reserved for White guys like Trump, Flynn, Stone, White Supremacists, and “Q-Anoners.” Folks of color and migrants exist largely below the floor level of the GOP’s definition of “person” or “human.” For them, justice is a “hammer” to beat them into submission and punish them for asserting their rights.

So, restoring the rule of law at the DOJ is going to be a tough job — you need to clean house and get the right folks (mostly from outside Government) in to help you. And, you must examine carefully the roles of many career civil servants who chose to be part of the problems outlined by Chairman Durbin in his opening remarks.

You’re also going to have to “tune out” the criticism, harassment, and unhelpful “input” you’re likely to get from GOP legislators in both Houses who are firmly committed to the former regime’s White Nationalist agenda of “Dred Scottification,” disenfranchisement, nativism, and preventing equal justice for persons of color, of any status!

Think about all the reasons why you and your family are grateful for the treatment you received from our country. Then, think of the ways you could make those things a reality for all persons seeking refuge or just treatment, regardless of skin color, creed, or status. That’s the way you can “give back” at today’s DOJ! That’s the way you can be remembered as the “father of the diverse, representative, independent, due-process exemplifying 21st Century Immigration Judiciary!” 🧑🏽‍⚖️👩‍⚖️👨🏻‍⚖️

🇺🇸🗽⚖️Due Process Forever!

PWS

02-23-21

⚖️🗽A FAIR ASYLUM SYSTEM THAT TREATS HUMANS WITH “EMPATHY, DIGNITY, & RESPECT” – It’s What Our Constitution, Laws, & Values Require – Every Day, As A Nation, We Violate These Basic Principles – When Will It Change? – A New Human Right First (“HRF”) “Video Short,” Narrated By Clara Long, Shows The Unnecessary Human Misery We Cause That Can Never Be Undone!

Clara Long
Associate Director
US Program
Human Rights First
PHOTO: HRF website

Here’s the video:

https://youtu.be/USIKjkzTS7U

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

It’s not “rocket science.” Actually, just carrying out our current legal and moral obligations. It’s well within our capabilities, particularly with the right people in charge. Why wasn’t a plan to get this done “front and center” in Judge Garland’s testimony today?

🇺🇸⚖️🗽Due Process Forever! Human misery doesn‘t stop for “study.” Not all damage and harm is reversible! What if it were YOU and YOUR family?

PWS

02-22-21

CELEBRATING BLACK HISTORY MONTH @ DHS: ICE DEPORTS BLACKS TO DANGER & POTENTIAL DEATH, MANY WITH NO DUE PROCESS!🏴‍☠️ — Legislators Call On Biden Administration To End Racist Enforcement Policies!

Colfax

https://www.washingtonpost.com/immigration/black-immigrants-deportations-biden/2021/02/12/5f395932-6d54-11eb-ba56-d7e2c8defa31_story.html

By Maria Sacchetti and Arelis R. Hernández in WashPost:

Prominent Black lawmakers are urging the Biden administration to stop expelling migrants to nations such as Haiti that are engulfed in political turmoil, fearing that they could be harmed or killed.

Hundreds of immigrants have been swept out of the United States in recent days, a blow to groups that had been counting on President Biden and Vice President Harris, the daughter of immigrants and the first Black vice president, to halt deportations and overturn the Trump administration’s hard-line immigration policies.

Biden attempted to pause most deportations on Jan. 20, but a federal judge temporarily blocked the move. Immigration officials say the recent removals match Biden’s new enforcement priorities — such as people who recently crossed the border or who were convicted of serious crimes — but advocates say immigrants are being sent to nations where they could face danger.

“The community should not still be in panic across this nation when we have an administration that is willing to do the work of stopping these deportations,” Rep. Ilhan Omar (D-Minn.) said Friday in a call with reporters. “They have the authority to say no more flights will leave the United States.”

Migrants who cross the border are still being removed under a Trump administration order that allowed the expulsion of recently arrived people under Title 42, Section 265, of the public health law that aims to prevent the spread of the coronavirus. Advocates for immigrants tracking the flights say Immigration and Customs Enforcement has expelled approximately 900 Haitians, including dozens of children, in the past two weeks.

Advocates for immigrants say the situation is urgent, as Haiti and nations in Africa are facing varying threats. Haiti, the Western Hemisphere’s poorest country, has seen its democracy plunge into a constitutional crisis with allegations of a coup attempt and conflicting claims to the presidency.

. . . .

ICE deported New York resident Paul Pierrilus to Haiti on Feb. 2, even though he has never been to that country and has lived 35 of his 40 years in the United States.

He had fought deportation since 2004 after a drug conviction. His parents are of Haitian descent, but they are U.S. citizens and Pierrilus was born on the Caribbean island of St. Martin.

Haiti had never recognized him as a citizen, he said, but an immigration judge ordered him deported more than 16 years ago and he lost his appeals.

In an interview, Pierrilus described how he had to be dragged off the airplane. He wore the parka he used to wear in New York into the tropical 85-degree air. He said he is stunned and defeated.

“I’m not a Haitian citizen! I’m not a Haitian citizen!” Pierrilus recalled yelling as local officials pushed him onto a bus. “I felt helpless because it’s a situation out of my control. It’s a situation I can’t do anything about. No one is hearing what I’m saying.”

. . . .

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

Read the complete article at the link.

The Pierrilus story is particularly indicative of ICE’s attitude toward people of color: If he’s black send him to Haiti, ask questions later!

Courtside was “on top” of Ed Pilkington’s recent Guardian article on deporting babies and children to total disorder and danger in Haiti.

https://immigrationcourtside.com/2021/02/08/%f0%9f%96%95ice-continues-to-give-biden-administration-humanity-the-big-middle-finger-racism-also-on-display-as-haitian-kids-babies-deported-to-burning-house/

Remember, creating an atmosphere of fear and terror in ethnic communities throughout the United States was a key priority of the Trump White Nationalist kakistocracy — with a some help from the Supremes’ majority. It has been very successful. In fact, as noted by Vice President Harris, hate crimes directed against Asian Americans are up astronomically.

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjxhrifm-fuAhU4MVkFHTW0BywQ0PADegQIGRAB&url=https%3A%2F%2Fwww.cnbc.com%2F2021%2F02%2F12%2Fvp-harris-responds-to-surge-in-violent-attacks-against-asian-americans.html&usg=AOvVaw2FZQYF9caSSckRsqU9fO58

But, of course, there aren’t any Asian American Justices, are there? So, out of sight out of mind for perhaps Ameria’s “least representative” court (with the possible exception of the EOIR “courts”).

I’ve consistently been making several points that others are finally starting to pick up on and that will be essential for Biden Administration policy makers to keep in mind:

The issues of racial justice and immigrant justice are deeply intertwined — one can’t be solved without addressing the other;
Dehumanization of “the other” (Black, Latino, Asian-American, women, immigrants, asylum seekers, etc.) — “Dred Scottification” — has been promoted over the past four years and essentially endorsed and furthered by a tone-deaf Supremes’ majority;
Racist attitudes and misogyny are deeply ingrained in the current DHS and EOIR (now operating as an adjunct of DHS Enforcement) enforcement mechanisms and in some of the personnel carrying out enforcement policies, including some EOIR judges;
An aura of impunity and unaccountability infects both DHS and DOJ;
Racial justice and equal justice under law will not be achieved without significant personnel and attitude changes at the “retail level” of both DHS and EOIR.

Finally, complaining is a start. But, it won’t result in the necessary systemic changes.

The only way that African-American, Hispanic-American, Asian-American, and female lawmakers are going to get durable change is by prevailing on their colleagues to recognize the humanity of all persons in the United States and to make the necessary statutory changes in the immigration laws, beginning, but not ending, with an independent Article I Immigration Court.

🇺🇸⚖️🗽Due Process Forever!

PWS

02-13-21

🏴‍☠️HONDURAS IS A HOTBED OF MISOGYNY, CORRUPTION, & ONE OF THE MOST DANGEROUS ☠️ COUNTRIES IN THE WORLD — The Trump Regime Fraudulently Designated As A “Safe Third Country” — Persecuted Women Still Struggle To Get Protection In EOIR’s Broken & Biased System!🦹🏿‍♂️

Trump Dumping Asylum Seekers in Hondiras — Dumping Asylum Seekers in Honduras
Artist: Monte Wolverton
Reproduced under license

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

https://www.theguardian.com/world/2021/feb/12/honduras-femicide-keyla-martinez-women-violence?CMP=Share_iOSApp_Other

Nina Lakhani reports for The Guardian:

Keyla Martínez screamed for help from inside the police cell, but no one came to save her.

Martínez, a 26-year-old trainee nurse from La Esperanza, western Honduras, died in police custody last weekend after being detained for breaching a coronavirus curfew.

Police officers initially claimed Martínez had killed herself. But a preliminary autopsy found she had died from “mechanical asphyxiation” and prosecutors announced they were investigating her death as a murder.

How Honduras became one of the most dangerous countries to defend natural resources

She was the latest victim in a relentless wave of misogynistic killings and state-sponsored violence in Honduras – one of the most dangerous and corrupt countries in the Americas. Twenty-nine women have been killed so far this year in Honduras, which has a population of about 9 million – only slightly more than New York City.

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This week, security forces have teargassed protesters demanding truth and justice for the young nurse. Human rights groups are also demanding accountability amid the alarming escalation of deadly violence against women. At least six women have been killed since Martínez died.

“This killing has all the hallmarks of an extrajudicial execution and must be investigated as such,” said Erika Guevara-Rosas, Americas director at Amnesty International.

“Grave human rights violations such as the killing of Keyla Martínez do not happen in a vacuum. They are the product of rampant impunity and the lack of political will to address the human rights crisis in Honduras. This dire context has produced a relentless and widespread stream of abuses by state security forces.”

Honduras is one of the most dangerous countries in the world to be a woman or girl. It is a deeply machista society where conservative church leaders exert a powerful influence over the personal and political spheres – including women’s access to reproductive healthcare and protection from violence.

Last month, congress voted to amend the constitution to make it virtually impossible to overturn the country’s abortion laws – which are already some of the strictest in Latin America.

In 2009, a coup orchestrated by a network of military, economic, political and religious elites, ushered in an authoritarian government, which remains in power despite multiple allegations of corruption, extrajudicial killings, electoral fraud and ties to international drug trafficking networks.

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Since then emigration has risen dramatically, as hundreds of thousands of men, women and children have fled north looking for safety and jobs. A culture of impunity has also meant that violence against women has only worsened.

In the decade before the coup, 222 women were murdered annually, according to analysis by the Centre for Women’s Studies – Honduras (CEM-H). In the past five years, 381 have been killed on average annually. Ninety-six per cent of the murders remain unsolved.

Honduras lawmakers seek to lock in ban on abortion for ever

“The militarization of the country since the coup has increased the threat to women’s lives, there are guns everywhere and we know the police have links to criminal gangs,” said Suyapa Martínez (no relation to Keyla Martínez) from CEM-H, a feminist organisation based in Tegucigalpa.

. . . .

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

Read the rest of the article at the link.

Refugee women continue to flee Honduras, even though the Trump regime misogynist nativists have skewed asylum law to make it more difficult for them to gain legal protection.

The Biden Administration has directed consideration of gender-based asylum regulations. It’s hardly a new idea — former AG the late Janet Reno ordered development of regulations regularizing the granting of “gender-based” asylum claims two decades ago.

Those efforts were basically sabotaged by DOJ bureaucrats and litigators more interested in narrowing asylum eligibility and making denials easier to defend than they were in protecting women — one of the world’s most persecuted groups by any reasonable accounting.

After years of screwing around, including eight years of inaction during the Obama Administration, super-misogynist and anti-asylum racist Stephen Miller arrived. He perversely came up with absurdly illegal regulations that incredibly purported to bar gender-based asylum claims! Those illegal (not to mention immoral) regulations have been enjoined. Nevertheless, the anti-asylum, anti-woman, anti-Latino attitudes and “judicial” decision-making at EOIR and DHS remain deeply ingrained!

The lesson: Changing policies in the bureaucracy requires something in addition to high level support. It requires bureaucrats who actually believe in the change and are committed to making it happen! That’s why dismantling the Trump immigration kakistocracy and getting better qualified individuals at all levels is so important.

Moreover, for lasting “Miller proof” change: Get it into legislation!

🇺🇸⚖️🗽Due Process Forever!

PWS

02-13-21

🇺🇸🗽⚖️Due Process Forever!

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Misinterpreting “Realistic Possibility” — 8th Cir.

2) Wrong Interpretation Of Child Status Protection Act — 2d Cir.

3) Ignoring Previous Circuit Ruling On Related Case — 10th Cir.

4) Misconstruction Of Record — 1st. Cir.

🇺🇸⚖️🗽Due Process Forever!

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Here’s the video:

🇺🇸⚖️🗽Due Process Forever! Human misery doesn‘t stop for “study.” Not all damage and harm is reversible! What if it were YOU and YOUR family?

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