"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”
Roger B. Taney, Chief Justice, Supreme Court, March 1857, Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)
“Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the due process clause.”
Justice Samuel Alito, Department of Homeland Security v. Thuraissigiam, 591 U.S. ___ (2020)
Dred Scott (circa 1857) Public Realm — Black asylum seekers and other migrants aren’t celebrating the continuing disgraceful “Dred Scottification of the other” in Mayorkas’s “New American Gulag” and Garland’s “Miller Lite” Immigration “Courts” that aren’t “courts” at all!
Yacouba, a political activist in Ivory Coast, knew if he didn’t immediately flee his home country, he wouldn’t survive.
After being threatened, attacked and tortured by people sympathetic to those in power, Yacouba fled his country in 2018. He went to Brazil for a few years, then made a perilous trek through Peru, Ecuador, Colombia, Panama, Costa Rica, Honduras and Mexico before finally arriving in the United States.
The journey was one of the two most challenging periods of his life. The second was being detained as a Black immigrant in the U.S.
As the nation celebrates Juneteenth — a day commemorating the emancipation of African Americans who had been enslaved in the United States — as a federal holiday for the first time, Black Americans and immigrants are fighting to dismantle institutional racism, including within the immigration system. Black immigrants are disproportionately detained, receive higher bond costs, and say they face racist treatment within detention centers.
Recognizing and celebrating the emancipation of slaves is vital, activists say ― but continuing to take down systemic racism needs to come with it.
“From an immigration perspective, Black immigrants face disproportionate levels of detention and exclusion,” Diana Konate, policy director at the advocacy group African Communities Together, said Thursday on a press call. “These can be life-threatening, as Black immigrants often get deported back to unsafe and dangerous conditions. While we celebrate the victories, we keep in mind that a lot of work remains.”
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Read the rest of Rowaida’s article at the link.
Every day that Garland, Monaco, Gupta, and Clarke drag their collective feet on ending “Dred Scottification,” racial bias, and xenophobia at EOIR diminishes their credibility on all racial and social justice issues. To date, Garland has appointed zero (O) progressive judges at EOIR, has only scratched the surface of the White Nationalist bias in decision-making in the Immigration Courts, and has failed to re-establish due process and the rule of law for Blacks and other migrants of color at the border.
Justice Alito and his colleagues in the majority disgracefully basically “dressed up” the core of Dred Scott dehumanization and bias in “21st century faux constitutional gobbledygook and intentional, disingenuous fictionalization!” Make no mistake: asylum seekers applying at our borders with their lives and humanity at stake are “persons” subject to our jurisdiction and are entitled to full Constitutional due process and statutory rights that are being denied to them every day, currently by the Biden Administration.
While Alito & Co. are wrong, DEAD WRONG in all too many cases, nothing in their dishonest and misguided “jurisprudence” prevents Garland from providing due process to individuals, regardless of status, in Immigration Court and to ending the racism and dehumanization underneath both the mess at EOIR and the cowardly abdication of duty by the Supremes’ majority in Thuraissigiam! In human rights, you either solve the problem or become part of it. And, experts, journalists, and historians are making a permanent record of the actions of the Supremes and the Biden Administration when democracy and racial justice are under stress!
You don’t have to look very far to “connect the dots” between Alito’s dismissive attitude toward the human rights of Asians and other asylum seekers of color and the increase in hate crimes directed against Asian Americans and unfair policing of African Americans. Once courts and government officials endorse “dehumanization of the other based largely on ethnicity” the “protections” and “distinctions” of citizenship tend to also vanish. If the lives of migrants of color can be declared worthless, what difference does citizenship mean for those of the same ethnic heritage that Alito deems below humanity? Obviously, the Trump kakistocracy’s attack on migrants of color was just a “place holder” for their attack on the rights of all persons of color in America!
How can Garland’s DOJ demand racial justice in state law enforcement while operating America’s most notorious “Jim Crow Court System?”
James “Jim” Crow Symbol of American Racism — He still “rules the roost” at Garland’s EOIR!
It’s time for all civil rights and civil liberties organizations to join forces in demanding an end to bias and “Dred Scottification of the other” in Garland’s disgracefully dysfunctional Immigration “Courts.” Not rocket science!🚀 Just human decency, common sense, available (yet ignored) progressive expertise, and Con Law 101!
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)“Justice” Star Chamber StyleStephen Miller & Count Olaf Evil Twins, Notorious Child Abusers: Their policies are still being carried out by Biden, Harris, Garland, and Mayorkas
By Psyche Calderon, Hannah Janeway and Ronica Mukerjee
In a steadily growing encampment mere yards south of the U.S.-Mexico border, we are led to a little girl with a fever. She lies dehydrated and wrapped in her parents’ possessions inside a waterlogged tent. Recently deported from the United States under a Trump-era pandemic policy, the family is camped next to the border wall with thousands of others who have nowhere to go.
In recent months, much attention and political outrage have focused on unaccompanied children crossing into the U.S. and being detained in government custody. But less scrutiny has been given to the mass deportations of migrant families and vulnerable adults expelled with no due process during the pandemic under a U.S. health law called Title 42, which allows the government to bar people from countries where communicable disease exists.
For more than a year — and in the name of public health — the government has been summarily expelling migrants arriving at the U.S.-Mexico border, ignoring epidemiologists and health experts, violating the migrants’ human rights and creating a critical situation in Tijuana and other border towns.
As medical professionals who provide care in encampments and shelters in Tijuana, we’ve seen how this expulsion policy has caused a humanitarian emergency in northern Mexico. Even as these encampments become increasingly overcrowded and unsafe, many migrants and their families are still being denied entry or quickly expelled by the U.S. government. The Biden administration has carried out roughly 350,000 expulsions, including nearly 50,000 families.
The administration, as part of a legal settlement, recently agreed to process up to 250 asylum seekers a day deemed vulnerable by advocacy groups so they may continue to pursue their asylum cases in the United States.
However, this is nowhere near sufficient to address the widespread human rights violations and humanitarian crisis we see every day in Tijuana. There are still many thousands of asylum seekers along the border who were previously subjected to inhumane detention and expulsions — and who are now grappling with the subsequent fallout and trauma.
Migrants in Tijuana are subjected to targeted violence by cartels, squalid conditions in encampments and shelters, and despair after the U.S. lied to many of them about their expulsions. Some asylum seekers have said Border Patrol agents told them they were being transferred to a shelter in another U.S. city when, in fact, they were sent to Mexico.
As co-founders of an organization providing healthcare to migrants stranded in Tijuana, we have been working around the clock to provide medical care.
We have seen increasing dehydration, malnutrition and infectious diseases associated with overcrowding. At an encampment in Tijuana that shelters about 2,000 asylum seekers, there are no formal sanitation facilities; gastrointestinal illnesses are causing severe illness in newborns and young children. Chronic diseases and mental health disorders, left untreated, could become death sentences. The migrants have been forced to camp amid very cold temperatures at night during winter months.
Disease is not the only threat. Families fear cartel activity and kidnappings since vulnerable migrants are often targeted for violence. More than 80% of LGBTQ refugees in Baja California reported surviving an assault in Mexico from mid-February to March. Last month, we received a late-night phone call from a lawyer asking for our help. The client — a transgender woman — had been stabbed, forced into hiding and was afraid to go to the local hospital in Tijuana because they are often unsafe places for sexual minorities. We were able to provide her basic medical care, but many others are not as lucky.
The Title 42 expulsion order has been used by the U.S. to essentially eliminate asylum at the border and put thousands of people in immediate danger by either returning them to their countries of origin or to Mexican border cities, even if the asylum seekers are not Mexican or do not speak Spanish. While the administration recently ceased cross-border expulsion flights — a reckless approach during the pandemic used to transfer and expel migrants to Mexico — officials have reserved the right to reinstate them as needed.
The policy has disproportionately affected Black migrants, who are often Haitian. They are expelled without due process back to persecution in Haiti or to pervasive anti-Black violence in northern Mexico — leaving them without access to healthcare, psychological support, safety or asylum.
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Read the rest of the article at the link.
I’ve said it many times: The Biden Administration’s efforts to achieve racial justice in America will fail as long as they carry out scofflaw racist immigration policies at the border and Garland runs White Nationalist star chambers @ EOIR under the guise of “courts.” Rhetoric is meaningless without action to back it up! And the fight for racial justice in America begins at the border and in our dysfunctional, lawless Immigration “Courts!”
Suzanne Monyak Senior Reporter, Immigration
Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration JudgesKnightess of the Round Table
Garland has yet to indicate whether he will rescind several decisions penned by attorneys general under the previous administration. In the last four years, Trump officials limited asylum eligibility for those fleeing violence by private actors, like gang members and domestic partners, and immigration judges’ ability to maintain their own dockets.
“There’s no reason that Attorney General Garland hasn’t done a thorough review of the attorney general certifications from the last administration,” said Susan Roy, a former immigration judge. “He should rescind any of them which he can. He has the authority to do that.”
. . . .
The Biden administration has also inherited a lengthy immigration court backlog — containing roughly 1.3 million cases — that have kept immigrants facing deportation and asylum-seekers waiting years for decisions in their cases.
The Biden administration has recognized that immigration judges may be key to processing these claims quickly and efficiently. In a preview of its budget request released earlier this month, the White House proposed increasing funding for the Justice Department’s immigration court agency from $734 million to $891 million to hire 100 new immigration judges.
Immigrant advocates and former judges say freeing the immigration court system from political influences is also critical to this effort.
“Without a union, there’s no way to protect judges against political ideologies of a given administration,” Roy said.
While judicial independence has “always been a concern” with a court system housed within a federal agency, “rarely has that been as problematic as it was under the Trump administration,” she said.
. . . .
Some advocates also want to see immigration courts be removed entirely from the DOJ and made an independent court system. The issue is on the agenda for the American Immigration Lawyers Association’s virtual “day of action” on April 22.
Roy, the incoming chair of AILA’s New Jersey chapter, acknowledged that Garland faces a number of competing priorities outside of the immigration courts. But she urged the administration against letting the system fall to the wayside.
“The immigration court is a subject that needs immediate attention,” she said. “Otherwise, it’s going to collapse under its own weight.”
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Thanks, Sue!
Today’s Immigration Courts, hotbeds of inefficiency, worst practices, racial bias, misogyny, and unnecessary backlogs, undermine everything that Biden and Harris campaigned on. They also make Judge Garland’s pledge to return justice and independenceto the Department of Justice look like a farce.
You simply can’t be responsible for something as totally broken, biased, and due process denying as the current Immigration Courts and have ANY shred of credibility on racial justice, independence, and “good government!”
“Eyore In Distress” “Why won’t Judge Garland help me get back on my feet? I”m so tired of being ‘belly up!’”“We were waiting for Judge Garland to free us from this chamber designed by Sessions, Miller, and Barr? Why is Garland diddling as we suffer and die?” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Judge Garland’s concept of “justice” for refugee women and people of color seems a little out of touch — anti-asylum, misogynistic, anti-due process, xenophobic, racially charged precedents remain in place; regressive, unqualified judges on the bench; “worst practices” continue to flourish; 1.3 million case backlog builds; & He hasn’t spoken to the naij:
Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160He doesn’t look like Jeff “Gonzo Apocalypto” Sessions or “Billy the Bigot” Barr, but does he think like them? Or does he just not care about the lives of people of color at the border and in his Immigration “Courts” that aren’t “courts” at all by any Constitutional or rational standard? Has he ever studied “The St. Louis Incident?” He’s basically repeating it! Official White House Photo Public Realm
With thousands of well-qualified experts from the NDPA out there, is THIS really the best way for the Biden Administration to recruit immigration/human rights advisers and Immigration Judges? It might, however, reach a more diverse audience than gobbledygook laden, short turnaround, “posts” on “ USA Jobs” that have created today’s non-diverse, regressive, non-expert Immigration Judiciary and the bloated, incompetent bureaucracy in Falls Church! PHOTO: Thomas Hawk Creative Commons Amateur Night
It’s difficult to believe that the president and his top officials did not realize their immigration policies, refugee admissions among them, would galvanize Republican opportunism and demagoguery. Perhaps they failed to anticipate the scale of unaccompanied Central American minors and families who would cross the border seeking asylum this spring. Maybe they are worried that GOP attacks, conflating that wave of asylum-seekers with refugees, would further imperil the Democratic congressional majorities in next year’s midterm elections, despite Mr. Biden’s own healthy standing in the polls.
. . . .
The president would do well to re-read his own campaign’s clear-eyed pronouncements on the subject. They correctly slammed Mr. Trump for decimating America’s decades-long leadership on refugees, whose admissions to this country were slashed by more than 75 percent in four years, to fewer than 12,000 in fiscal 2020. “We cannot mobilize other countries to meet their humanitarian obligations if we are not ourselves upholding our cherished democratic values and firmly rejecting Trump’s nativist rhetoric and actions,” said the Biden campaign statement on refugees.
While the administration bumbles its way toward a policy, real lives are at stake. Some 33,000 refugees in Africa, the Mideast and elsewhere, all of them having passed rigorous screening by the Department of Homeland Security and other agencies over the course of months or years, are stuck in camps where they await flights to the United States. They see this country as a beacon, just as Mr. Biden insisted it is.
It’s difficult to believe that the president and his top officials did not realize their immigration policies, refugee admissions among them, would galvanize Republican opportunism and demagoguery. Perhaps they failed to anticipate the scale of unaccompanied Central American minors and families who would cross the border seeking asylum this spring. Maybe they are worried that GOP attacks, conflating that wave of asylum-seekers with refugees, would further imperil the Democratic congressional majorities in next year’s midterm elections, despite Mr. Biden’s own healthy standing in the polls.
In any event, the president’s retreat on refugees is a danger sign. It looks like weakness; it smacks of spinelessness. Time will tell whether it is a short-term tactical maneuver or a more basic lack of resolve in the face of political headwinds. Here’s hoping it is the former.
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Read the complete editorial at the link.
Perhaps, Biden’s West Wing immigration advisers need a different “vision” of U.S. refugee policy. Perhaps, it’s time to end “Amateur Night at the Bijou” and bring in some human rights pros with the knowledge and guts to implement humane, effective, robust, legal refugee and asylum policies that serve humanity and advance our true national interests! PHOTO: independent.co.uk
Read the full op-ed, which actually recycles much that you’ve already heard on Courtside, at the link.
It “might be difficult to believe,” but you need look no further than the continuing worsening mess in Garland’s dysfunctional Immigration Courts, the failure to implement the rule of law at the border, the inability to get a robust refugee program up and running near the Northern Triangle, and the glaring lack of immigration/human rights expertise in the West Wing to see how unprepared “Team Biden” was to deal with inevitable, totally predictable, issues on which progressive Dem experts had been raising the alarm since before the election.
Incredibly, with hundreds, perhaps thousands, of progressive immigration/human rights/due process experts out here in the Dem camp, Biden has managed to surround himself with the wrong folks — those who can’t get the job done and prove it every day!
“Courage of their convictions” — that’s the problem here: Either his advisors don’t believe in the immigration, human rights, and justice agendas that Biden and Harris ran upon or they don’t have the guts to carry them out! Either way it’s a problem.
This is the same old, same old arrogant, uninformed “it’s only immigration not something important” attitude that has turned strength into weakness for Dems over the past decades! As Stephen Miller could testify, having the brainpower, expertise, courage, advocacy skills, energy, and persistence of the immigration/human rights community lined up in opposition isn’t conducive to implementing your agenda, whatever it might be.
Also, a pile of dead bodies beyond the border and continuing “Dred Scottification” of the other in dysfunctional, disgraceful “captive courts” might squeak by in the “present tense,” but will be an unflattering historical legacy that in the long run will outweigh all the achievements.
Turning supporters into critics, abandoning your values and promises, ginning up court suits opposing your out of control, due process destroying “courts,” and scofflaw asylum policies — some of them right out of the Stephen’s Miller playbook — seems like a bad way to proceed for any politician, let alone ones as experienced and skilled as Joe Biden & Kamala Harris.
Recognizing when the “honeymoon is over” and you need folks on your team who can actually turn campaign promises into real-world action is critical.
So far, the “Amateur Night @ the Bijou” approach to immigration, human rights, due process, and racial justice, predictably, isn’t getting the job done. The Biden Team needs to either turn to the experts, or face the real prospect of four years of continuing failure — along with the dead bodies, ruined human lives, and sense of continuing betrayal by gutless politicos that go with it.
Due Process Forever! Not “rocket science,” 🚀 but “mission impossible” without bringing in the pros!
Merrick Garland was recently confirmed as attorney general, bringing back a much-needed sense of impartiality and integrity to the Justice Department and the immigration court system it oversees. In this sense, his appointment is critical because, less than two months into his presidency, Joe Biden is already confronting the reality that meaningful immigration policies don’t always match up with wishful campaign promises. As thousands of migrants, especially unaccompanied minors, continue to seek safety and opportunity in the United States; as changes to interior enforcement and immigration prosecutions are slow to implement; and as advocates apprehensively watch detention facilities expand and COVID-related border closures continue, immigration remains the most divisive of all political conversations.
But rather than be overwhelmed by the challenge, perhaps there is another place to start, one that has only been alluded to in Biden’s plans and never taken up by Congress: If we want to re-build a better, stronger immigration system, we need to start with immigration courts. In a Just Security piece published in November, Gregory Chen eloquently laid out the devastating harm caused by the Trump administration’s politicization of the immigration judiciary, pointedly describing the courts as “strained to the breaking point under a massive backlog of cases and a systemic inability to render consistent, fair decisions.”
Courts are the backstop of every legal system. Their most basic function is to ensure that applications of the law are fair, not arbitrary and capricious. In the U.S. immigration system, however, most of the oversight has fallen on administrative courts housed within the Department of Justice. As Chen argues, the courts “operate under the jurisdiction of a prosecutorial agency, the Department of Justice, whose aims and political interests often conflict with the fundamental mission of delivering impartial and fair decisions.” Further exacerbating the tension, beginning in 1996 Congress expanded the executive branch’s already far-reaching power on immigration by starting a 30-year trend of limiting the federal courts’ jurisdiction over immigration issues; efforts that were only reinforced by the 2002 Homeland Security Act and 2005 REAL ID Act. The recently introduced, White House-backed, U.S. Citizenship Act of 2021 only slightly restores judicial oversight, allowing district courts to review allegations of violations of certain portions of the Act. For the foreseeable future, immigration courts remain under the direction of the Executive Office for Immigration Review (EOIR), a small and chronically under-funded sub-agency of the Justice Department, operating out of an office building in Falls Church, Virginia, removed from DOJ leadership in Washington, D.C.
While they by no means caused the issues that plague the EOIR today, the Trump administration’s policies put the proverbial final nail in the coffin of a quasi-functioning system, decimating the daily functions of immigration courts and showing how they can be used as political tools. The overwhelming backlog of cases –nearly 1.3 million at last count across all courts– exacerbated by the enforcement-first agenda, means that immigration judges have enormous caseloads with few support staff to help them manage the work. In addition, policies by the Trump administration removed judicial discretion from judges, prevented them from using simple control tools to manage their dockets, tied performance reviews to how many cases they closed out within a year while making it harder to avoid entering deportation orders, and created new administrative law to further restrict benefits a judge can grant. When the immigration bench pushed back, leadership dismantled the union that represented them. Hiring and rewards practices have politicized the bench even more. As Chen noted in his piece, the Trump administration “stacked the courts with appointees who are biased toward enforcement, have histories of poor judicial conduct, hold anti-immigrant views, or are affiliated with organizations espousing such views.”
This is not the hallmark of a functional legal system, and its ripple effects undermine our immigration system as a whole.
. . . .
Otherwise, we will prolong a situation that would be comical were the implications not so devastating. Returning to the individuals stranded in Mexico due to the MPP, for example – as of the time of this writing, they are being registered into a database and given COVID tests by various international organizations. Once cleared to enter the United States, they will fill out a form, by hand, which is handed to the Customs and Border Protection official. The CBP officer, overwhelmed and under-resourced as they are at the border, will then transmit this paper form to the immigration court officials, who will enter it into their systems and change the case to the appropriate court. In New York, these courts do not even have sufficient staff to assign one clerk, who also doubles as an administrative assistant, to each judge. As a result, calls to the court frequently go unanswered and are rarely returned. Furthermore, increasingly, understaffing has led to misplaced evidence submissions for pending cases. The responsibility to ensure that all of these obstacles are overcome will lie on the individual who just, finally, entered the United States.
An independent immigration judiciary, with its own resources and free from political oversight, is the only long-lasting remedy to this dysfunction. In the meantime, the agency, much like the DOJ it depends on, is in desperate need of thoughtful, measured leadership that values due process and impartiality and supports existing staff as it continues to navigate the complex problems posed by our immigration laws. There must be trained, dedicated staff ensuring efficient management of the court’s dockets and administrative systems so that the individuals whose cases are going through the courts understand what is required of them. Only then will the immigration system reflect American notions of justice, and only then can we begin to rebuild a strong, sustainable immigration system that meets our goals for foreign policy, national security, and domestic prosperity.
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Read Camille’s full article at the link.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Not rocket science! Just following the due process clause of the Constitution; implementing asylum laws in the fair, generous, and practical way they were intended; replacing today’s failed EOIR administrators, the entire BIA, and many Immigration Judges responsible for “asylum free zones” with competent, expert professionals; and treating migrants, regardless of race, color, creed, or gender, as human beings!
If you wonder why Judge Garland is continuing to run “star chambers” masquerading as “courts” @ DOJ, join the club!
“Justice” Star Chamber Style
As cogently described by my friend and fellow panelist at the Hispanic National Bar Association last night, Claudia Cubas, Litigation Director at the CAIR Coalition, in what other “court” system in America are you not entitled to a timely copy of your client’s file to prepare for litigation and file applications (often with artificially truncated “filing dates” to promote “summary denials”)? Making the Immgration Courts functional is neither impossible nor that complicated. All it takes is competent leadership with the guts to “clean house” at EOIR and “kick some tail” at an intransigent, contemptuous, and out of control DHS.
Claudia Cubas Litigation Director CAIR Coalition Photo: berkleycenter.georgetown.edu
So why is Judge Garland investing in the continuing, deadly “Clown Show,”🤡🦹🏿♂️☠️⚰️ rather than getting going on bringing “his” courts into compliance with due process? It’s not even that hard to get the right experts who could do the job in place, at least on a temporary basis.
Judge Merrick B. Garland Official White House Photo Public Realm
If Judge Garland won’t do his job, what can we do to force change and rationality into this totally dysfunctional, stunningly unfair, scofflaw system? Here are some ideas from last night’s panel at the Hispanic National Bar Association (“HNBA”):
Apply for jobs at EOIR (sure, they are hidden away on “USA Jobs,” there is no effort whatsoever on Judge Garland’s part to diversify or recruit real experts, and the selection process is opaque). But, better judges, with actual experience representing migrants (particularly asylum seekers) in court, and some compassion and human understanding along with expertise, are the key to fixing the system. It’s particularly critical for minority attorneys (now a relative rarity in the “Immigration Judiciary”) to apply in overwhelming numbers and get into the system to start forcing change from within (“bore from within,” as Dan Kowalski says). Can’t complain about who’s selected if you don’t apply and compete!
Raise hell with your legislative representatives! As long as Immigration Court reform is #27 on their radar screens, the problem won’t get addressed.
Get involved with educating the public about the ungodly, un-American disaster in the Immigration “Courts” that don’t fit any normal definition of “courts” (except “kangaroo courts”). Join and support advocacy and social service groups; write op-eds; write for blogs; speak at community and church meetings; run for political office!
Sue, sue, sue, sue! Make sure that the systemic mistreatment of migrants and people of color in Judge Garland’s Immigration Courts are front and center in the Article III Courts and that we are making an historical record of where Federal Judges and public officials stand on the most critical racial and social justice issue in America today. Argue the very obvious Constitutional violations present in a system run by prosecutors, where judges can be neither fair nor impartial, and where many lack even minimal competence and qualifications for their “judicial” positions. Take the fight to the broken and dysfunctional DOJ in the only way they understand, by whacking them down in court! Make Judge Garland face and “own” his disgracefully failed, unprofessional “courts” by making it the #1 issue occupying his time. Make how he deals with the Immigration Courts his overriding “legacy” for better or worse!
Remember, GOP politicos like to use immigration as a “prop” to spread their message of racial vilification and dehumanization of the “other” because it “fires up” their White Nationalist base! By contrast, Dem politicos want to make immigration go away and pretend like the mess in the Immigration Courts doesn’t exist, can’t be fixed, isn’t that important (as in lives of migrants and asylum seekers, mainly of color, don’t count), and isn’t killing people! Don’t let either party get away with their respective dishonest, “designed for failure,” approaches!
Humanity and the future of American democracy are at stake here! They might be “Clown Courts” 🤡 but the damage they daily inflict on human lives ☠️⚰️ and values 🤮 is no laughing matter!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! Put an end to deadly “Clown Courts” 🤡 now!
Leon Krauze in the WashPost tells us what’s really happening at the border. WARNING: It has little to do with the myths and false narratives being peddled by the GOP, the Administration, and the media.
The current emergency at the border has found the U. S. media at its most solipsistic. Coverage seems more focused on whether the emergency should be called “a crisis” (it should) and what the political fallout for the Biden administration will be. With few exceptions — like the remarkable work of MSNBC’s Jacob Soboroff or Politico’s Sabrina Rodriguez — many news outlets seem utterly uninterested in the stories of the migrants themselves.
This is wrong because it fails to provide one crucial piece of the puzzle: the very concrete context of human suffering.
. . . .
This by no means excuses the stories of anguish and confinement that have emerged over the last few weeks from within the facilities set up by the Biden administration to deal with the number of young migrants crossing the border, nor does it absolve the president himself from delivering on his promise of a humane immigration system, diametrically opposed to Trump’s cruel policies, designed in collaboration with unapologetic racist xenophobes like Stephen Miller.
The Biden administration can and should do better. But the current debate cannot ignore the very concrete despair facing thousands of immigrant families who, under the direct threat of violence or abuse, chose to push their young children to the United States, in search of safety.
If the alternative was famine, gang violence, kidnapping, rape or sexual slavery, wouldn’t you bet it all on the journey north? If more people understood this, the political debate and the coverage surrounding the crisis would be much more empathetic and we would get closer at delivering concrete, humane solutions.
Now, let’s hear more “simple truth” from Suzanne Gamboa over at NBC News:
Suzanne Gamboa, Political Editor, NBCLatino, NBC NewsDate: October 21, 2013 Place: Washington, DC Credit: Maria Patricia Leiva/OAS Creative Commons License
America’s immigration impasse — an endless loop across different administrations — is largely self-inflicted, because Congress has repeatedly failed to acknowledge one simple thing: Immigration happens.
Accordingly, immigration laws must be continually adjusted, reformed and revised, experts say.
“People will always want to come to the U.S., and the U.S. will always need people,” said former Commerce Secretary Carlos Gutierrez, who was a top immigration adviser to President George W. Bush.
Until there is a system that allows enough legal immigration to meet the economy’s needs, there will be illegal immigration, Gutierrez said.
“That’s just part of how our economy is set up. It’s part of demographics,” Gutierrez said. “Our birthrate is not high enough to be able to fill the needs of our economy.”
The coronavirus pandemic reinforced the importance of immigrant labor to the American economy, including labor by the undocumented.
All of those people and many other immigrants, including young immigrants — often called “Dreamers” based on never-passed proposals in Congress called the DREAM Act — will play a key role in helping the economy recover from its pandemic bust.
But immigration requires periodic calibration, and the economics and the changing patterns are lost in the politics.
“People are going to move — as they are all around the world — where they think they can find places to better feed their children. That’s the bottom line, and that’s the history of migration to the United States,” said Luis Fraga, director of the Institute for Latino Studies at the University of Notre Dame.
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Everyone should read the rest of the stories at the above link.
Degrading Ourselves As A Nation Won’t Stop Human Migration
By Judge (Ret) Paul Wickham Schmidt
“Courtside” Exclusive
March 26, 2021
Notwithstanding the endlessly disingenuous and self-centered alarmist rhetoric coming from all directions on the border mess, often mindlessly regurgitated by the press (not just Fox News), the real “crisis” involves the human lives at stake and the unnecessary human misery we are causing by failing to establish, professionally staff, and fairly and competently operate the legal refugee and particularly asylum systems required by law. This “due process crisis” actually has devastating and debilitating practical effects, starting with the dysfunctional immigration, refugee, and asylum system and the beyond dysfunctional Immigration Courts.
Heck, we don’t even pretend to comply with Constitutionally-required due process of law for asylum seekers who present themselves to us seeking life-saving refuge. Most of those who show up at legally-established border ports are told that the border is “closed” and that there is no way for them to apply. OK, so they attempt to cross between ports and immediately present themselves to the Border Patrol. But, they also are told there is no way to apply and are orbited back to some of the most dangerous countries in the world without any process whatsoever, let alone due process of law. Who are we kidding with all our dishonest pontificating about “the rule of law?”
It’s a strange way to implement the statutory command that any foreign national “irrespective of . . . status, may apply for asylum,” along with a constitutional guarantee that “No person shall . . . be deprived of life, liberty, or property without due process of law.” Gee, you don’t even need one of those fancy Ivy League law degrees to understand that language. You just have to be able to read, comprehend, and act.
What you do have to do to get where we are today is to view asylum seekers and other migrants (predominantly people of color) as less than human — “non-persons” in a constitutional sense. It’s what some of us call “Dred Scottification of the other” and it has accelerated over the past four years — not just in immigration.
The whole idea of a “court system” being run by the Executive who also is the chief of enforcement is beyond constitutionally preposterous. It’s a “negative tribute” to the Supremes and other Article III life-tenured judges who have grown so distant from their own humanity and immigration stories as to become willfully blind to the ongoing farce that constitutes “justice” and “due process of law” for asylum seekers and other immigrants in the U.S.
Today’s nearly non-existent “asylum system” is a deadly and illegal “catch 22,” with the Supremes sitting in their marble palace refusing to do the primary task that justifies their continued existence: enforce the Constitution against Government misbehavior and in favor of the “little guys” and the “vulnerable.” No thanks, not up to the job!
The real tragedy is that there are plenty of folks out here with the knowledge, integrity, courage, and ability to establish a legal system that would actually comply with out laws, our Constitution, and further offer the hope of constructively addressing some problems before refugees arrive at our borders. But, they remain “benched,” even by the Biden Team. So the “good guys”are going to keep attacking the corrupt and broken system in court and at the polls for as long as it takes to get some course correction — years, decades, centuries — ask most African Americans how long it takes to achieve the true justice that America promises to all, but historically has only delivered to some.
In the long run, a fair system would undoubtedly accept many more legal refugees and asylum seekers. That’s what happens in refugee situations — it’s the core of what we call “forced migration” — when you sign on to international conventions intended to prevent the “next holocaust,” and you fairly and humanely apply the rules meant to protect refugees and those who face torture. And, as they have in the past, the overwhelming number of refugees and asylees, like the overwhelming majority of immigrants (essentially all of us, except Native Americans) will adapt, fit in, and contribute to the health, wealth, and future of our nation. They will change, but so will we — ultimately for the better!
Sure, America wouldn’t be as white, “Christian” (to the extent that adherence to a nominal Christian denomination, rather than actually performing Christ’s extremely difficult, self-sacrificing, risky, compassionate mission, defines Christianity), and nominally heterosexual as it was when White Nationalist myths and whitewashed history ruled the roost. But, it would be a better nation — one that actually has a chance of prospering, realizing the full potential of all its residents, and leading the world in the 21st century. A nation that could devote more human, natural, and monetary resources to building and exporting greatness, rather than to an endless stream of cruel, inhuman, stupid, and wasteful enforcement and deterrence gimmicks.
Bottom line, folks are going to come to America, as they have throughout history. Some will stay, some won’t. But, come they will, unless and until those like Trump and the GOP create such a mess that our own people start fleeing to foreign shores. Immigration, regardless of status, is a sign of strength. Xenophobia a sign of fatal weakness.
Our real choice isn’t whether we want to “close” borders, bar refugees, and abuse children as the Cottons, Cruzes, Millers, and Hawleys advocate. It’s whether we create a robust, orderly, rational legal system to screen, regulate, and distribute the inevitable flow or whether, as we have for the past decades, we force millions to reside and work underground — part of an “extralegal” or “black market” system that pols of both parties and those who profit from that underground system have created.
Sprawling mismanaged enforcement bureaucracies, dysfunctional “courts,” armies of publicly-paid lawyers defending the indefensible, for-profit civil prisons, big agriculture, hospitality giants, loads of upwardly mobile professionals who need child care to pursue careers, communities that live off of marketing ethnic culture, meat packing conglomerates, architects and construction firms who are “building America,” even news media fixated on hyping the problem rather than fixing it (see, e.g., yesterday’s Biden press conference), the list of those who profit from a talented, hard working, reliable, loyal, yet politically and socially disenfranchised, workforce is endless.
Even the GOP’s “Cotton-Cruz crowd” benefits from having an imaginary enemy to rant and rail and gin up hate against — safe in the knowledge that the tanking of our economy, upheaval of society, and possible threat to their privilege that would result from realizing their disingenuous call to boot the entire undocumented population will never happen. Their kids and grandkids can continue to reap the privilege that comes from exploiting an essential, yet politically neutered, workforce. It’s really more about institutionalizing racism to maintain economic and political power over the eventual non-white majority that drives their bogus and ugly narratives.
We can degrade ourselves as a nation, but it won’t stop human migration!
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! It’s a vision based on a written promise, not a “pipe dream!”
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.
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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 exemplifying21st Century Immigration Judiciary!” 🧑🏽⚖️👩⚖️👨🏻⚖️
While Donald Trump failed to pass much signature legislation and largely failed to remake the federal government in ways that cannot be immediately corrected, his landmark achievement will be his lasting contributions to the federal judiciary. Breaking the records of his predecessors, Trump seated 234 judges on the federal courts in four years, including three at the Supreme Court. That means that whatever Biden and the Democrats try to do in the coming months and years, most of the efforts will ultimately be in the hands of life-tenured judges, 30 percent of whom were named by Trump. Those judges are overwhelmingly very young, very white, and very male. A preview of what’s likely to come happened just last week, when a federal judge tapped by Trump blocked Biden’s 100-day deportation “pause” with a nationwide injunction.
The question is what Biden and the Democrats can and will do in response to Trump’s enduring legacy. The new president is already making moves that indicate he understands that some of the norms and conventions that guided Barack Obama in building the judiciary are dead and gone. This week the Washington Post reported that the Biden administration is doing away with the formal American Bar Association vetting process that Democratic presidents used to abide by, because it was jettisoned by Republican presidents and because it simply lengthened the process. Biden is also hustling to put together the bipartisan commission he pledged would examine structural reforms for the Supreme Court and the federal judiciary. Former Wisconsin Sen. Russ Feingold is a leading Democrat attempting to strengthen the left’s ability to appoint judges, to match the pace the right has set. He is the president of the American Constitution Society, the left’s answer to the Federalist Society (we spoke last year when he assumed the post). Given the potential of the current moment for big changes in the judiciary, I wanted to ask him what happens next. Our conversation has been lightly edited for clarity.
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Read the rest of the interview at the link.
The disgraceful mess that Trump and McConnell made out of our Federal Judiciary has been a constant theme here @ Courtside over the past four years!
What’s missing from this interview are these fundamental realizations that those of us in the world of immigration and human rights know well but seem to escape most of the others looking to fundamentally change and improve the Federal Judiciary:
There are few things that go on in the Federal Judiciary, at any level, as important to human lives and the future of our nation as what takes place in Immigration Court every day;
The Immigration Courts have hit stunning new levels of dysfunction, incompetence, and intentional injustice over the past four years — they are truly an ongoing national disgrace (“America’s Star Chambers” or “Clown Courts”🤡) and a stain on the humanity of our nation, as well as an abomination that threatens to collapse our entire justice system;
Immigration law and “weaponized” Immigration Courts have been the key to the Trump regime’s attack on American democracy and our Constitutional institutions culminating in the deadly Capitol insurrection;
The Biden Administration has complete authority to fix the Immigration Courts now — no waiting for Justices or Judges to retire, “negotiating with Mitch and the Federalist Society,” waiting for the scheduling of Senate Confirmation hearings, or humoring home state Senators;
Some of the lawyers and advocates who led the legal fight to preserve American democracy over the past four years would be outstanding choices for the Immigration Judiciary (as well as the Article III Judiciary — there is no shortage of diverse progressive talent with “real life retail experience” out here in the NDPA, Russ);
A well-functioning, diverse, independent Immigration Judiciary would not just help advance and enforce the Administration’s progressive, humane, due-process-focused immigration and human rights policies, but also should become a model of “best practices” for the Article III Judiciary, and an extraordinary source of well-trained, experienced, progressive, “practical scholar jurists” for filling positions in the Article III Judiciary;
Better understanding of, and commitment to, humanely and properly administering immigration and human rights laws by Federal Judges — and the total elimination of “Dred Scottification of the other” under law — is the absolutely essential “now-missing key” to achieving racial justice and social justice in America;
America can’t afford the astounding absence of true immigration scholarship, human understanding of immigrants, practical decision making and problem solving, and an overriding commitment to due process for all persons, including asylum seekers and migrants, that now infects the Federal Court system at all levels;
Those seeking to undermine American democracy will continue to exploit the Federal Judiciary’s overall lack of understanding of immigration and human rights laws and their willing abrogation of Constitutional due process and basic concepts of fundamental fairness and human dignity for some of the most vulnerable persons among us — we must fix this problem before it destroys us!
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
A Parting Shot At Women
As the Trump Administration comes to an end, let’s remember how it began. On the day following the inauguration, millions participated in Women’s Marches around the world. There is sadly no need to list the reasons why women in particular would feel the need to respond in such a way to a Trump presidency.
It was therefore no surprise that Trump’s first Attorney General issued a decision intended to strip protection under our asylum laws from women who are victims of domestic violence. That decision, Matter of A-B-, was so soundly rejected by U.S. District Court Judge Emmet Sullivan that the U.S. Court of Appeals for the Sixth Circuit relied on his reasoning to conclude that Sessions’s decision had been abrogated. The First and Ninth Circuits further rejected Sessions’s view that the particular social group relied upon in A-B- was legally unsound. The Eighth Circuit rejected Sessions’s description of the standard for proving a government’s inability or unwillingness to control an abusive spouse, for example, as requiring evidence that the government condones his actions, or is completely helpless to prevent them.
The administration tried to codify the views expressed in A-B- and in another case, Matter of L-E-A-, by issuing proposed regulation designed to completely rewrite our asylum laws, with the purpose of making it virtually impossible for domestic violence and gang violence victims to qualify for asylum protection. Those rules, which were rushed out with very little time for public comment, were blocked on January 8 by a U.S. District Court judge.
There are at least two important cases presently before the U.S. Court of Appeals for the Fourth Circuit involving the issues raised in both A-B- and L-E-A-. Had these decisions been issued by, e.g., U.S. District Court judges, the Department of Justice would be representing the government (in the form of the Attorney General), but not the judge who issued the decision below. But as to A-B-, the government attorneys represent an Attorney General acting as judge, and a judge with extraordinary powers. As a result of those powers, the official presently filling the position on an acting basis (who had come to the job a few weeks earlier from the Department of Transportation with absolutely no background in immigration law) was able to unilaterally issue a new decision in the case, in an attempt to shore up issues of concern before the circuits.
So what does the new decision of the recent Deputy Transportation Secretary say? It addresses two issues: the “condone or complete helplessness” language used by Sessions, and the proper test for when persecution can be said to be “on account of” an asylum seeker’s gender, familial relationship, or other group membership.
As to the first issue, the Acting AG now states that Sessions did not change the preexisting legal standard for determining whether a government is unwilling or unable to provide protection. The Acting AG accomplishes this by explaining that “condone” doesn’t actually mean condone, and that “complete helplessness” doesn’t mean complete helplessness.
I’m not sure of the need for what follows on the topic. Perhaps there is an Attorney General Style Guide which advises to never be succinct when there are so many more exciting options available. Besides from sounding overly defensive in explaining why Sessions chose to use terms that sure sounded like they raised the standard in order to supposedly signal that he was doing no such thing, the decision also feels the need to remind us of what that preexisting standard is, in spite of the fact that no one other than perhaps a Deputy Transportation Secretary pretending to be an asylum law scholar is in need of such a recap. Yes, we understand there are no crime-free societies, and the failure to prevent every single crime from occurring is not “unwilling or unable.” No court has ever said that it was. Let’s move on.
The second part of this new A-B- decision addresses a conflict between the views of the Fourth Circuit and the BIA in regard to when a nexus is established. This issue arises in all asylum claims, but the BIA addressed it in a case, Matter of L-E-A-, in which an asylum applicant was threatened by a violent gang because it wished to sell drugs in a store owned by his father. The question was whether the asylum seeker’s fear of harm from the gang was “on account of” his familial relationship to his father.
Our laws recognize that persecution can arise for multiple reasons. A 2005 statute requires a showing that one of the five specific bases for a grant of asylum (i.e. race, religion, nationality, membership in a particular social group, or political opinion) must form “one central reason” for the harm. The BIA itself has defined this to mean that the reason was more than “incidental, tangential, superficial, or subordinate to another reason.”
In the context of family membership, the Fourth Circuit has repeatedly held that this “one central reason” test is satisfied where the family membership formed the reason why the asylum seeker, and not someone else, was targeted for harm. Using the L-E-A- example, the gang members were obviously motivated most of all by their desire for financial gain from the selling of the drugs in the store. But under the Fourth Circuit’s test, the family relationship would also be “one central reason” for the harm, because had the asylum seeker not been the son of the store owner, he wouldn’t have been the one targeted. This is known as a “but for” test, as in “but for” the familial relationship, the asylum seeker wouldn’t have been the one harmed
In L-E-A-, the BIA recognized the Fourth Circuit’s interpretation in a footnote, but added that the case it was deciding didn’t arise under that court’s jurisdiction. The BIA thus went on to create its own test, requiring evidence of an actual animus towards the family. The BIA provided as an example of its new test the assassination of the Romanov family in 1917 Russia, stating that while there were political reasons for the murders, it would be difficult to say that family membership was not one central reason for their persecution.
I’m going to create my own rule here: when you are proposing a particular legal standard, and the judge asks for an example, and all you can come up with is the Romanov family in 1917 Russia, you’re skating on thin ice. The other thing about legal standards is in order for judges to apply them and appeals courts to review them, they have to be understandable. I’m not a student of Russian history, but it would seem to me that (as the BIA acknowledged), the main motive in assassinating the Romanovs was political. I’m not sure what jumps out in that example as evidence of animus towards the family itself. How would one apply the Romanov test to anyone ever appearing in Immigration Court? By comparison, the Fourth Circuit’s test is a very clear one that is easy to apply and review on appeal.
Of course, this is just my humble opinion. The assistant Transportation czar feels differently. Drawing on his extensive minutes of experience in the complex field of asylum, he concluded: “I believe that the Fourth Circuit’s recent interpretation of ‘one central reason’ is not the best reading of the statutory language.”
I am guessing that by saying this in a precedent decision in the final days of this Administration, Transportation guy is hoping that the Fourth Circuit will feel compelled to accord his opinion Brand X deference. Legal scholar Geoffrey Hoffman has pointed out that no such deference is due, as the requirement that the statute be ambiguous is not satisfied. (Geoffrey’s excellent takedown of this same decision can be found here, and is well worth reading).
But the term in question, “on account of,” is also not one requiring agency expertise, which is of course a main justification for judicial deference. It is instead a legal standard not specific to asylum or immigration law.
For example, last June, the Supreme Court decided Bostock v. Clayton County, a case involving employment discrimination based on sexual orientation or identity. In a 6-3 decision authored by Justice Gorsuch, the Court explained that the statutory term in question, “because of,” carries the same legal meaning as “on account of,” the relevant phrase for asylum purposes. In determining nexus, the Court stated:
It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.
That last sentence – “if changing the employee’s sex would have yielded a different choice by the employer” – is essentially the same “but for” standard applied by the Fourth Circuit in the asylum context. What would give an Acting Attorney General the authority to hold otherwise?
A conservative commentator observed a difference between the discrimination required in Bostock and the persecution required in L-E-A-, stating that discrimination can involve favoring one group without necessarily hating the group being passed over, whereas persecuting someone requires an animus towards them.
However, the BIA recognized nearly 25 years ago that persecution can be found in harm resulting from actions intended to overcome a characteristic of the victim, and that no subjective punitive or malignant intent is required. The BIA acknowledged this in L-E-A-, noting that a punitive intent is not required.
Furthermore, the legislative history of the REAL ID Act (which created the requirement in question) shows that Congress amended the original proposed requirement that the protected ground be “the central motive” for the harm, to the final language requiring that it be “one central reason.”1 While animus would fall under “motive,” “reason” covers the type of causation central to the Fourth Circuit’s “but for” test. The history seems to undermine the former Transportation official’s claim that under the Fourth Circuit’s test, the “one central reason” language would be “mere surplusage.” This is untrue, as that additional language serves to clarify that the reason can be one of many (as opposed to “the” reason), and that the relevant issue is reason and not motive. Perhaps the author required more than three weeks at the Department of Justice to understand this.
I write this on the last full day of the Trump presidency. Let’s hope that all of the decisions issued by this administration will be vacated shortly; that the BIA will soon be comprised of fair and independent immigration law scholars (preferably as part of an independent Article I Immigration Court), and that future posts will document a much more enlightened era of asylum adjudication.
Note:
1. See Deborah Anker, The Law of Asylum in the United States (Thomson Reuters) at § 5:12.See also Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124 (3d Cir. 2009) (recounting the legislative history and rejecting a dominance test for determining “one central reason”).
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Copyright 2021 Jeffrey S. Chase. All rights reserved.
Republished by permission.
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Judge Garland and his team must address systemic failures at the dysfunctional DOJ well beyond the festering, unconstitutional mess @ EOIR (“The Clown Show” 🤡) that requires an immediate “remove and replace.” The ethical failings, bad lawyering, dilatory litigating tactics, anti-American attitudes, racism, misogyny, intellectual dishonesty, coddling of authoritarianism, and complicity in the face of tyranny are in every corner of the disgraced Department.
Withdrawal of every bogus, biased, unconstitutional, racist- motivated “precedent” issued during the Trump regime and turning the proper development and fair interpretation of immigration and asylum laws over to a “new BIA” — consisting of real judges who are widely recognized and respected experts in immigration, human rights, and due process — must be a “day one” priority for Judge Garland and his team.
The Clown Show🤡🦹🏿♂️ that has made mincemeat out of American justice — not to mention legal ethics and human morality — must go! And, the problem goes far beyond the “Falls Church Circus!”🎪🤹
🇺🇸⚖️🗽Due Process Forever! Institutionalized misogyny, 🤮☠️never! No more Jeffrey Rosens @ DOJ —ever!
And, firms like Kirkland & Ellis need to think twice about re-employing a sleazy “empty suit” like Rosen who represents everything that is wrong with American law in the 21st century! Public disgrace should not be mistaken for “public service.”
“Normalizing” political toadies, “senior executives,” government “lawyers,” and other “public officials” who carried the water and willingly (often, as in Rosen’s case, enthusiastically, gratuitously, and totally unnecessarily) advanced the objectives of a White Nationalist, anti-American regime whose disgraceful and toxic rule ended in a violent, unhinged, failed insurrection against our democracy encouraged by a Traitor-President, his supporters, and members of the GOP would be a HUGE, perhaps fatal, mistake!
Make no mistake about it! Brave, determined refugee women like Ms. A-B- and her lawyers (superstars like Professor Karen Musalo and Blaine Bookey of the Center for Gender and Refugee Studies) are the true American heroes 🦸🏻 of the resistance to White Nationalist, racist, xenophobic policies of cruelty, hate, and disparaging of the rule of law. Toadies and traitors like Rosen are the eternal villains!🦹🏿♂️ Picking on refugees on the way out the door is an act of supreme cowardice that will live in infamy!🐓🤮
President-elect Joe Biden will roll out a sweeping overhaul of nation’s immigration laws the day he is inaugurated, including an eight-year pathway to citizenship for immigrants without legal status and an expansion of refugee admissions, along with an enforcement plan that deploys technology to patrol the border.
Biden’s legislative proposal, which will be sent to Congress on Wednesday, also includes a heavy focus on addressing the root causes of migration from Central America, a key part of Biden’s foreign policy portfolio when he served as vice president.
The centerpiece of the plan from Biden and Vice President-elect Kamala D. Harris is the eight-year pathway, which would put millions of qualifying immigrants in a temporary status for five years and then grant them a green card once they meet certain requirements such as a background check and payment of taxes. They would be able to apply for citizenship three years later.
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The focus on Central America reflects the message that Biden has relayed to senior officials in the region: that he will advocate for policy changes aimed at what drives scores of migrants there to come to the United States illegally to seek safe harbor.
“Ultimately, you cannot solve problems of migration unless you attack the root causes of what causes that migration,” one official said, pointing to the various reasons — from economic to safety — that drive migrants to flee their home countries. “He knows that in particular is the case in Central America.”
Transition officials are aware of recent reports of the increased numbers of migrants at or heading to the border in anticipation of the end of Trump’s presidency, and urged them to stay in their home countries. They emphasized that newly arriving immigrants would not qualify for the legalization program that Biden proposes.
Biden wants to move the refugee and asylum systems “back to a more humane and orderly process,” the official said. But “it’s also been made clear that that isn’t a switch you flip overnight from the 19th to the 20th, especially when you’re working with agencies and processes that have been so gutted by the previous administration.”
Biden hopes to reinstate a program granting minors from Central America temporary legal residence in the United States. The Trump administration terminated the program in August 2017, officials said. The administration also wants to set up a reunification program for Central American relatives of U.S. citizens that would allow those who have been already approved for U.S. residency to be admitted into the country, rather than waiting at home for an opening. The program would be similar to ones that existed for Cubans and Haitians but also were ended by the Trump administration.
The Biden proposal also would put in place a refugee admissions program at multiple processing centers abroad that would better help identify and screen those who would qualify to be admitted as refugees into the United States.
As for border enforcement, the plan calls on the Department of Homeland Security to develop a proposal that uses technology and other similar infrastructure to implement new security measures along the border, both at and between ports of entry. Biden has long vowed not to expand the border wall Trump has marginally extended.
“This is not a wall; this is not taking money from [the Department of Defense],” a transition official said, referring to how Trump helped to finance his wall after pledging Mexico would pay for it. “It’s a very different approach.”
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Read the complete article at the link.
This is a welcome change from the poorly conceived, often ill-informed approach to immigration by the Obama Administration. It appears that Biden and Harris have actually “listened to the experts” and acted a accordingly.
The concentration on addressing the reality of Central American migration and dealing honestly and constructively with its root causes in a sensible and humane way is also refreshing. Using intelligence and technology to address real border security issues (as opposed to squandering resources on politically manufactured ones) also shows promise.
Julia Edwards Ainsley NBC Correspondent Justice & DHS Outside Justice Dep’t Photo: Victoria Pickering https://www.flickr.com/photos/vpickering/
Many of the latter wereenergized by the Trump/DHS program of White Nationalist racist fear-mongering and intentionally false anti-immigrant, anti-due-process narratives. That’s what “applied malicious incompetence” looks like — DHS and EOIR are two of the most egregious examples in a regime that raised it to an “art form.” It will take an aggressive and far-reaching “house cleaning” to get these agencies that have abandoned the common good and now operate “on the dark side” back on track.
The immediate “knee-jerk opposition” to rational, practical, fact-based immigration reform by notorious White Nationalist racist Sen. Tom Cotton (R-ARK) shows that Team Biden is on the right track to disavow the toxic institutionalized racism and biased policies of the Trump regime and move America along the path to racial justice and realistic, progressive immigration policies that will further the national interest and lead to a better future for all!
It’s a great, if long overdue, start to getting beyond Jim Crow and “Dred Scottification” and saving and enhancing our democracy! But, the proof will be in the results!
Biden, of course, will also face the formidable challenges of dealing with the human carnage left behind by the Trump regime’s disastrous mis-handling of COVID-19, economic inequality, the environment, racial justice, and foreign policy where American “prestige” has plummeted to levels not seen since the days of the Barbary Pirates.
He also must address a failing Federal Justice System that, particularly at its appellate levels, did not effectively stand up to the Trump regime’s unrelenting assault on human decency and American democracy. Indeed, Justice Sonia Sotomayor, a consistently competent and courageous Justice among our failing Supremes, offered this final harsh but true assessment of her GOP colleagues’ malfeasance in a death penalty case: “This is not justice.”https://www.nbcnews.com/news/latino/not-justice-justice-sonia-sotomayor-offers-fierce-dissent-death-penalty-n1254554
You could say that about almost everything in the departing, defeated White Nationalist regime!
I’ll note for the record that among other things, the Supremes’ tone-deaf majority has been responsible for letting bona fide asylum seekers rot in squalor in camps in Mexico while waiting for non-existent “due process,” and also authorized the imposition of potential death sentences and torture on asylum seekers within our jurisdiction without any whit of due process.
The GOP majority’s disgraceful failure to stand up for voting rights of African Americans, Latinos, and other voters of color has also deepened racial injustice in America and helped usher in a horrible “Jim Crow Revival” pushed, incited, and enabled by the GOP, “The Party of the Failed Insurrection.”
Any competent first-year law student might ask “How could this happen in America?” That’s a question that Roberts and his gang of fellow Trump enablers and apologists will have to answer before the “court of history!”
Trump RegimeTrump’s Legacy Kiddie GulagJeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com Republished under licenseJeff “Gonzo Apocalypto” Sessions “Police Brutality? What Police Brutality?”Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com, Republished under licenseStephen Miller & Count Olaf Evil Twins, Notorious Child Abusers“Gauleiter Muller & Eva Braun” Yuck it Up In The Comfort Of “Public Welfare Dole” While Looking Forward to Planning Together for More “Crimes Against Humanity,” Abusing Children, Dehumanizing Persons of Color, Spreading Lies & False Narratives, & Targeting World’s Most Vulnerable Refugees 🤮☠️⚰️🦹🏿♂️ — Sure Looks Like “Welfare Fraud” to Me!
WASHINGTON, D.C. – Senator Jeff Merkley of Oregon has called for the investigation and prosecution of current and former Trump administration officials afterthe Department of Justice Office of the Inspector Generalreleased “a disturbing report confirming that the Trump administration knew their zero tolerance policy would lead to family separations,” the Oregon Democrat said in a statement.
“We finally have more answers about how this diabolical plan came to be,” Merkley said. “It is crystal clear that Jeff Sessions, Stephen Miller, Chad Wolf, Kirstjen Nielsen and other senior Trump administration officials were not only fully aware that their policy would have traumatizing impacts on families, but also that their intention was to inflict that trauma as a means to deter people from coming to America in search of a better life.”
The senator added “it’s now confirmed that they committed perjury by lying to Congress about their intentions and actions in order to avoid accountability for their monstrous initiative.”
“The intentional infliction of harm on innocent children is unforgivable and has no place on our soil,” Merkley said Thursday. “The architects should be investigated and prosecuted to the full extent of the law for any crimes connected with both the atrocities and the cover-up.”
Merkleyreturned to the border 6 more timesand advocated for families to be reunited – and for people seeking refuge “from gang violence, murder, rape, and extortion in their home countries” be allowed to make their case – something the senator alleges the Trump adminitration has not allowed in keeping with the law.
“America is at its strongest when we embrace our historic role as a beacon of hope for persecuted people from around the world,” Merkley said. “I am determined to work with the Biden administration to ensure that we turn that vision into a reality, and to hold the perpetrators of the Trump administration’s cruelty fully accountable.”
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Couldn’t have said it better myself, Senator! Right on! Remarkable how all it takes is an armed insurrection against our Capitol and our democracy generated by the Traitor Prez and supported by far, far too many cowardly, anti-American members of his “Party of Treason” to get folks “thinking like Courtside.”
Even if the criminals described by the IG escape prosecution for their crimes, the new IG Report and the additional documents that certainly will come to light once the Trump kakistocracy is removed should provide enough evidence to keep these wretched fascist creatures and their families tied up in civil litigation for the rest of their miserable and worthless lives!
To date, only Senator James Langford (R-OK) has had the decency to apologize for his role in supporting Trump’s beyond bogus, treasonous, insurrectionist claims of “election fraud” or a stolen election. Where are the apologies from the rest of the cowardly GOP traitors and toadies who supported and/or enabled Trump and his band of racist thugs over the past four years? Why is scumbag Rep. Jim Jordan walking around with a bogus “Medal of Freedom” for spreading lies and encouraging sedition, rather than sitting in a jail cell awaiting trial?
WHERE ARE THEY NOW?
“Gonzo Apocalypto” Sessions. Child abuser and racist plotter remains at large, after having the shameless audacity to run for the U.S. Senate again, being defeated by Magamoron “Coach TubbyTraitorville” (a blithering idiot who obviously got hit by one too many flying tackling dummy).
“Gauleiter Stepan Muller.” Hiding out on the public dole in the seat of corruption and insurrection (formerly and soon again to be known as the “White House”) with his repulsive “Eva Braun substitute” and carrying out more “crimes against humanity” to the end.
Rod Rosenstein. Hiding out, hanging his head in (belated, fake)shame and making the big bucks at King & Spaulding. Will need them after he is dismissed from his law firm, disbarred, and has to pay legal fees and damages to the families he traumatized.
Gene (No Relation to Alex) Hamilton. Still grifting on public welfare at the DOJ until next Wednesday. First cowardly “Waffern SS Member” to publicly take the “Nuremberg defense:” “I was only following Der Fuhrer’s orders.”But, he won’t be the last.
Donald J. “Big Loser/Traitor” Trump. Hiding out in White House basement and planning flightfrom DC after initiating botched coup attempt against his own Government.
Victims of Failed Regime’s “Crimes Against Humanity.” Already sentenced to a lifetime of pain, suffering, and trauma by Large Banana Republic that shirked its legal and moral duties.
Accountability for this “gang of White Nationalist thugs” is important!
Also, Judge Garland needs to look into the conduct of the DOJ lawyers who defended the regime’s transparent lies and false claims that there was “no child separation policy.” These turkeys 🦃 took no responsibility for their clients’ ongoing crimes and cover ups. Indeed, outrageously, they got away with making it the burden of the plaintiffs’ lawyers to reunite families the Government intentionally and illegally separated without any plans for reunification.
The invidious racist, unconstitutional motives of criminals like Trump, Miller, Sessions, Hamilton, and Rosenstein was no secret. Except for the degree of Rosenstein’s involvement, it was widely reported at the time. Trump was a well-established liar whose public statements and rationales should have been assumed false until proven true. (Ask yourself what would happen to a corporate lawyer who took at face value and presented to a court as “facts” or a “defense” in a civil suit false statements by a corrupt CEO with a long-standing record of fraud, racism, and dishonesty.)
Also, what was the a racist hack like Sessions (the report also reveals that he was as totally incompetent as a lawyer as he was devoid of human decency) doing running border enforcement programs that had intentionally been removed from the AG’s portfolio by Congress when DHS was created? How does that fit with “Gonzo’s” transparently unethical and unconstitutional actions as a “quasi-judicial officer” in interfering with due process at the EOIR Clown Show🤡/Star Chamber🦹🏿♂️?
This IG report is just the “tip of the iceberg” of the institutionalized racism and systemic misconduct that polluted the immigration kakistocracy at DOJ and DHS during the Trump regime. The failings of the U.S. Justice system from top to bottom, starting with the Supremes’ consistent failure to critically examine the regime’s transparent pattern of unconstitutional, racist, biased behavior culminating in an insurrection can’t be “swept under the carpet.”
Nor can their enabling of the White Nationalist immigration agenda of “Dred Scottification” pushed by unethical SG Noel Francisco! In a well-functioning democracy, the Trumpist thugs’ child abuse should have been stopped in its tracks. Thanks to the failure of legal, ethical, and moral leadership by Roberts and his righty GOP buddies, it wasn’t!
The entire beyond disgraceful and patently illegal “zero tolerance program” instituted by Gonzo was a grotesque misuse of public funds and abuse of prosecutorial discretion. Real crimes (the Trump regime has been an absolute boon to serious criminals from the Oval Office on down) went un-prosecuted and un-investigated. The conduct of U.S. Attorneys, Federal Judges, and U.S. Magistrate Judges along the border who shirked their duties and participated in the legal farce taking place in our criminal justice system also needs to be examined.
Those of us who lived through Watergate can see that this time around, under extraordinarily poor leadership generated by an anti-American GOP, the response of all three branches of our Federal Government to the overt threats to our Constitution and democracy posed by a dishonest Executive fell disturbingly below the bipartisan levels that saved our nation from Nixon.
That’s why the critical democratic standard of a “peaceful and orderly transfer of power” has fallen by the wayside and the Biden-Harris Inauguration will take place in an armed camp. Ironically, the man administering the oath to President Biden, Chief Justice John Roberts and his GOP colleagues on the Supremes bear a major responsibility for democracy’s peril and the pain and suffering of those like separated families whom they failed to protect from Executive abuses!
As I’ve said before, although it won’t happen, the resignations of Roberts and his fellow GOP Justices should be on President Biden’s desk on the morning of January 21. That would be a real start on healing, restoring democracy, and reinstituting human decency and respect for human lives and the rule of law in America.
(Let’s not forget that ethics-challenged Justices Thomas and Coney Barrett showed up at what essentially was a “MAGA campaign rally” at the White House on the eve of the election that eventually resulted in impeachable acts of insurrection and sedition by a patently dishonest and dangerous Chief Executive whose unfitness to govern was more than clear by that time. Honestly, it’s going to take more than a black robe to cover the shame of these dudes who stand for protecting and enabling tyranny and against justice for the people. If nothing else, it’s high time for a Democrat-led Congress to impose at least some minimal ethical standards on the Supremes, since they appear to have none to mention. That’s, of course, after they come to grips with the treason of GOP guys like Cruz and Hawley who should be expelled and barred from public “service” (treason?) for life.)
🇺🇸⚖️🗽👎🏻Due Process Forever! Cowardly thugs, 🥷🏻magamorons, 🦹🏿♂️ and their enablers, never!
*Roto-Rooter is the registered trademark of Roto Rooter Co.🪠🚽🧻
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“Justice” Star Chamber StyleHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Sir Jeffrey” Chase reports more good news for the NDPA, bad news for the EOIR kakistocracy🤡 🦹🏿♂️and the seedy DOJ lawyers 🦹🏿♂️clogging the Federal Courts with frivolous litigation engendered by the White Nationalist, nativist immigration agenda ☠️⚰️🏴☠️ at failed DOJ:
Hi all: The lesser asylum regs that were scheduled to take effect tomorrow were just blocked by a TRO and preliminary injunction granted in D.C. District Court (order to follow). These regs would have required certain respondents to file their I-589s within 15 days of the first Master Calendar hearing, and would have required EOIR to reject any I-589 which left even a single space blank, among other things.
Best, Jeff
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There needs to be a “day of reckoning” for DOJ lawyers who have “carried the water” for the racist kakistocracy @ the regime’s “Ministry of Nativist Propaganda & Crimes Against Humanity” (the Federal agency formerly known as the “Department of Justice”).
Illegal regulations, clogging the Federal Courts with frivolous positions, defending the actions of imposters impersonating Cabinet officers and other officials, inventing pretexts to cover invidious intent, targeting the most vulnerable among us have “real life” consequences.
There will be no “rebirth” at Justice unless “Team Garland”👨🏻⚖️⚖️🗽🇺🇸 deals with the xenophobia, racism, institutionalized cowardice, and criminal misuse of office and Government resources at the failed DOJ over the past four years.
That’s in addition to the “maliciously incompetent” mismanagement aspect of the unmitigated disaster @ EOIR which has (mis)used various illegal “gimmicks” to pour more mismanaged resources into creating astronomical, mostly unnecessary backlogs in our failed and beyond dysfunctional Immigration “Courts” (actually Star Chambers, masquerading as “courts”), in “partnership” with the out of control, White Nationalist enforcement kakistocracy @ ICE/DHS and violating the Constitution and human decency to boot! Really, could it be any worse?
The Trump/GOP insurrection🥷🏻 @ our Capitol is directly related to lack of accountability that let the Trump kakistocracy “get away with murder.” That’s why the Inauguration is being held in a city under military lockdown next week.
You can bet that the lies, “back-pedaling,” cover-ups, finger pointing, and avoidance of responsibility for the disintegration of democracy will be in full swing by the end of next week! Judge Garland will have to deal with it up front; he can’t “wait for Godot” as has been the problem with past Dem Administrations!
Today’s “DOJ” looks and “(mal)functions” like a Clown Show 🤡 repertory company playing “Theater of The Absurd” in a bad imitation of a Franz Kafka novel! If Judge Garland doesn’t want to become the “star” of this revolting exhibition, he’d better start cleaning 🧹 up and cleaning out 🪠on “Day 1.” And the EOIR “Tower of Babble” would be a great starting point for “Operation Clean Sweep”🧹!
There will be no real justice in America without a a “day of reckoning” @ Justice. It’s long, long, long, long overdue!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, February 5, 2021. NYC non-detained remains closed for hearings.
CBS: Another federal judge on Friday ruled that Chad Wolf was likely unlawfully appointed to his position at the helm of the Department of Homeland Security (DHS), issuing a decision that blocked a set of broad asylum limits slated to take effect Monday.
WaPo: The U.S. Court of Appeals for the 4th Circuit said the administration’s policy undermines the national resettlement program created four decades ago by Congress.
WaPo: President-elect Joe Biden plans to nominate federal judge Merrick B. Garland, a Democratic casualty of the bitter partisan divide in Washington, to be the next attorney general, tasked with restoring the Justice Department’s independence and credibility, according to people familiar with the decision.
Law360: Democratic victories in Georgia’s heated Senate runoffs gave the party a slim majority in Congress, but without enough votes to end a filibuster.
WaPo: More than 2,500 detainees, most with no serious criminal history, have given up their cases since March, according to records from the Transactional Records Access Clearinghouse, a research group at Syracuse University. Those records also show that detainees put in deportation proceedings in July 2020 were twice as likely to opt for voluntary departure than those from a year before.
WaPo: Over 170 new applicants have become the first individuals in several years to win approval to the Obama-era Deferred Action for Childhood Arrivals program for immigrants brought to the U.S. as young people, the U.S. government revealed in a court filing Monday.
Guardian: US federal prosecutors have filed motions saying the Honduran president, Juan Orlando Hernández, took bribes from drug traffickers and had the country’s armed forces protect a cocaine laboratory and shipments to the US.
NY: This year, Governor Cuomo will continue to support the Liberty Defense Project to keep fighting for immigrants seeking a better life for themselves and their families. New York’s strength, character, and pride are found in the diversity and rich culture that makes us the Empire State.
A federal district court in California preliminarily enjoined the government from implementing, enforcing, or applying the 12/11/20 final rule, “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review.” (Pangea Legal Services, et al. v. DHS, et al., 1/8/21) AILA Doc. No. 21011107
EOIR issued a memo (PM 21-13) updating and replacing OPPM 17-01, Continuances, to account for legal and policy developments subsequent to its issuance. The memo provides a non-exhaustive list of legal and policy principles as an aid to adjudicators considering common types of continuance requests. AILA Doc. No. 21011101
Law360: The U.S. Supreme Court on Monday threw out a Ninth Circuit ruling that detained asylum seekers who clear an initial fear screening must be given a prompt bond hearing, sending the case back to the appeals court for reconsideration.
SCOTUSblog: The case asks whether a grant of Temporary Protected Status authorizes eligible noncitizens to obtain lawful-permanent-resident status if those noncitizens originally entered the United States without being “inspected and admitted” – a term of art referring to lawful entry and authorization by an immigration officer.
ImmProf: There are four immigration related cases set to be considered, with three being petitions by the government (more SG petitions on distinct immigration issues than one would usually expect in the course of an entire year), and the other involving a case in which the SG is agreeing that certiorari is appropriate (also a rare position for the SG). The SG’s position in each of these cases shows an unusual aggressiveness towards the role of the Supreme Court.
The BIA found that IJs may find a document to be fraudulent without forensic analysis if it contains obvious defects or readily identifiable hallmarks of fraud, and the party submitting the document is given an opportunity to explain the defects. Matter of O-M-O-, 28 I&N Dec. 191 (BIA 2021) AILA Doc. No. 21010801
The court held that a conspiracy or attempt to commit fraud or deceit involving over $10,000 in intended losses is an aggravated felony, and remanded to determine whether petitioner’s convictions under 18 USC §1037(a) reflected over $10,000 in intended losses. (Rad v. Att’y Gen., 12/21/20) AILA Doc. No. 21010500
The court reversed the district court opinion and disagreed with CA6 and CA9 interpretations of the statute, by holding that a grant of TPS does not constitute an “admission” into the United States under INA §1255. (Sanchez v. Wolf, 7/22/20) AILA Doc. No. 21011100
The court upheld the BIA’s denial of petitioner’s motion to reopen based on changed country conditions in Somalia, finding that the BIA did not fail to consider al-Shabaab’s increase in power or ISIS-Somalia’s emergence and growing violence from 2011 to 2018. (Mohamed v. Barr, 12/23/20) AILA Doc. No. 21010502
The court held that the Vietnamese petitioner had waived review of the BIA’s discretionary denial of asylum relief, and that his proposed social group comprised of “known drug users” was not legally cognizable because it lacked particularity. (Nguyen v. Barr, 12/21/20) AILA Doc. No. 21010503
The court reversed an injunction of PP 9945, which requires IV applicants to demonstrate acquisition of health insurance or ability to pay for future healthcare costs. The court found the proclamation within the president’s executive authority. (Doe, et al., v. Trump, et al., 12/31/20) AILA Doc. No. 21010436
President Trump issued a memorandum directing the Secretary of State to assess whether to classify Antifa as a terrorist organization under 8 USC §1182(a)(3)(B)(vi), and to take steps to consider listing Antifa in 9 FAM 302.5-4(B)(2)(U), Aliens Who Are Members of an Identified Criminal Organization. AILA Doc. No. 21010635
USCIS provided additional updates about lockbox operations, noting that applicants may face delays of four to six weeks in receiving receipt notices for some applications and petitions filed at a USCIS lockbox facility. Delays may vary among form types and lockbox locations. AILA Doc. No. 20121534
I sure hope that Judge Garland and Secretary-Designate Mayorkas are paying close attention!
Because unless they take some immediate forceful action to disable the “regime’s immigration kakistocracy” and make the radical bureaucratic changes necessary to regain control, their “dream jobs” are going to turn into “Nightmare on Elm Street” overnight!
Human rights are being violated and taxpayer funds (in an already “over budget” USG) are being poured down thetoilet 🚽by the minute by the out of control, maliciously incompetent kakistocrats at EOIR, DHS, and in the SG’s Office to name just a few of the most obvious “national disgraces” that need an immediate fix!
The defeated anti-American, neo-Nazi regime was “not normal” and neither Garland nor Mayorkas can afford to treat the wreckage of democracy and human decency and those who did the regime’s bidding at DOJ and DHS as “acceptable” for another minute!
“[W]e conclude that the BIA abused its discretion by denying E.A.’s motion to reopen. E.A.’s mother’s recent childbirth is a serious medical event, which coupled with E.A.’s minor age, her difficulty obtaining transportation, and her difficulty navigating the immigration system without assistance, constitute “exceptional circumstances” necessitating rescission of the in absentia removal order. … The BIA’s decision was also contrary to law, and therefore an abuse of discretion. … First, the BIA improperly considered E.A.’s age separately, rather than considering age alongside other factors, when determining that she had not shown that exceptional circumstances justified her failure to appear. Second, the BIA erred when it dismissed without adequate explanation E.A.’s evidence that she is eligible for SIJS. Finally, the BIA improperly stated that E.A. was required to present prima facie evidence that she was eligible for immigration relief as part of her motion to reopen. … For the foregoing reasons, we GRANT the petition for review, VACATE the removal order, and REMAND for further proceedings consistent with this opinion.”
[Hats way off to Rachel Naggar! Here is a link to the audio of the oral argument.]
“Salim Al Amiri, an Iraqi citizen, seeks relief from removal on the grounds of asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). He premises his requests for such relief on the harm that he fears that he would be subjected to in Iraq at the hands of members of Iraq’s military or civilian insurgents operating in that country. Al Amiri contends that he has reason to fear he would be subjected to that harm on account of his work as a paid contractor for the United States Army during the war in Iraq, as in that role he educated U.S. soldiers about Iraqi customs and practices as they prepared for their deployment. We vacate and remand the ruling of the Board of Immigration Appeals (“BIA”) denying his claims for asylum and withholding of removal, but we deny his petition insofar as it challenges the BIA’s ruling rejecting his CAT claim.”
Think how much better this system would function with expertjudges who treated asylum applicants fairly from the “git go,” granted protection wherever possible in accordance with the the Refugee Act of 1980 and the (more “woke”) Supremes’ precedent in Cardoza-Fonseca, provided clear, positive guidance on how valid claims could be documented and granted, and promoted and consistently applied best practices to achieve efficiency with maximum due process.
At first glance, although the issue is reopening rather than a continuance, E.A.C.A. undercuts McHenry’s nativist, insanely wasteful, and totally dishonest attempt to “raise the bar” for routine continuances for asylum applicants who need time to properly document and prepare their cases.
The “Deny – Deny Program” — deny due process, deny relief — that infects EOIR’s “Star Chambers” (impersonating “courts”) is a huge backlog builder that kills people and screws up Court of Appeals dockets in the process.
Reopening cases that should be reopened, getting to the merits, and getting the many properly grantable asylum cases represented, documented, and prioritized would be a huge step in reducing EOIR’s largely self-created and unnecessary “bogus backlog.”
Ultimately, many of the clearly grantable asylum cases being mishandled and wrongly denied at EOIR, at great waste of time and resources, not to mention unnecessary human trauma, could, with real expert judges at EOIR setting and consistently enforcing the precedents, be granted more efficiently and expeditiously at the Asylum Office and ultimately shifted to a more robust and properly run Refugee Program.
In the longer run, once EOIR is redesigned and rebuilt as a proper court with real, independent, expert judges, it might be appropriate to place the Asylum Offices under judicial supervision, given the grotesque abuses and corrupt, perhaps criminal, mismanagement of the Asylum Offices by USCIS toadies carrying out the regime’s racist, White Nationalist, unconstitutional agenda of hate and waste.
NOTE TO JUDGE GARLAND👨🏻⚖️:Please fix the EOIR mess, Your Honor, before it brings you and the entire US justice system crashing down with it! This is a national emergency, and a damaging national disgrace, NOT a “back burner” issue!
Here’s some additional E.A.C.A. analysis by my good friend and NDPA “warrior queen” 👸🏽Michelle Mendez @ CLINIC!
Michelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network, Inc. (“CLINIC”)
Subject: CLINIC MTR In Absentia Win at the CA6 on behalf of SIJS-Seeking UC (E. A. C. A. v. Jeffrey Rosen)
Greetings,
Sharing this win, E. A. C. A. v. Jeffrey Rosen, out of the CA6 by my amazing colleague Rachel Naggar who manages our BIA Pro Bono Project. This was an appeal of an IJ (Memphis) denial of an in absentia motion to reopen for a 13-year old unaccompanied child.
Interestingly, after oral argument, OIL filed a motion to remand the case (which Rachel opposed) and the CA6 denied that motion. Seems the CA6 really wanted to issue a decision on the merits and we are grateful for the decision. Here are some highlights from the decision:
SIJS
· “Notably, the IJ’s decision does not mention E.A.’s claims that she was eligible for SIJS.”
· FN 1: “As of the December 2020 Visa Bulletin, visas are available for special immigrants (category EB4) from El Salvador to adjust their status if their priority date is prior to February 2018. If DHS removes E.A. prior to approving her visa, she will be unable to apply for adjustment of status. See 8 U.S.C. § 1101(a)(27)(J).”
Totality of the Circumstances
· “Based on the totality of the circumstances, including E.A. mother’s recent childbirth, E.A.’s young age, E.A.’s mother’s failed attempts to obtain counsel to help change the address of E.A.’s hearing, and E.A.’s inability to travel from New York to Memphis for the hearing, we hold that E.A. established exceptional circumstances.”
· “Under the totality of the circumstances, E.A.’s young age is an important factor in determining whether exceptional circumstances exist.”
Exceptional Circumstances
· “E.A.’s mother’s recent childbirth is a serious medical condition that supports reopening. The statute defining ‘exceptional circumstances’ that justify reopening an immigration proceeding lists the ‘serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien’ as an example. 8 U.S.C. § 1229a(e)(1). Childbirth is a serious medical event that necessitates a recovery period.”
· “Instead of recognizing that childbirth is a serious medical condition, the BIA minimized the seriousness of childbirth and its impact on E.A.’s mother’s ability to bring E.A. to Memphis. […] Recovery from childbirth is exactly the type of circumstance that § 1229a(e)(1) was intended to cover.”
Prima Facie Eligibility
· “Finally, the BIA erred by stating that E.A. was required to prove prima facie eligibility for immigration relief. The BIA’s decision improperly states that E.A. is required to show at this stage prima facie eligibility for relief. The statute governing motions to reopen removal orders entered in absentia provides that the petitioner must ‘demonstrate[] that the failure to appear was because of exceptional circumstances.’ 8 U.S.C. § 1229a(b)(5)(C). In general, we have stated that ‘[a] prima facie showing of eligibility for relief is required in motions to reopen.’ Alizoti, 477 F.3d at 451–52. In the case of a motion to rescind a removal order entered in absentia, however, the BIA has held that ‘an alien is not required to show prejudice in order to rescind an order of deportation” or removal. In re Grijalva-Barrera, 21 I. & N. Dec. 472, 473 n.2 (BIA 1996); see also In re Rivera-Claros, 21 I. & N. Dec. 599, 603 n.1 (BIA 1996). This is consistent with the statute governing motions to rescind removal orders entered in absentia, 8 U.S.C. § 1229a(b)(5)(C), which does not list a showing of prima facie eligibility for relief from removal as a requirement to rescind in absentia removal orders. Rivera-Claros, 21 I. & N. Dec. at 603 n.1; see also Galvez-Vergara v. Gonzales, 484 F.3d 798, 803 n.6 (5th Cir. 2007) (declining ‘to affirm the IJ’s decision on the grounds that [the petitioner] has not shown that he was prejudiced by his counsel’s performance’ because ‘In re Grijalva-Barrera, 21 I. & N. Dec. at 473 n.2, provides that an alien need not demonstrate prejudice for his counsel’s erroneous advice to constitute an ‘exceptional circumstance’ justifying rescission of an in absentia removal order’); Lo v. Ashcroft, 341 F.3d 934, 939 n.6 (9th Cir. 2003) (‘follow[ing] the BIA’s usual practice of not requiring a showing of prejudice’ to rescind an in absentia order of removal). We now join our sister circuits and hold that E.A. is not required to make a prima facie showing of eligibility for relief in order to obtain rescission under 8 U.S.C. § 1229a(b)(5) of the in absentia order of removal.”
Thanks to our entire Defending Vulnerable Populations team for supporting Rachel on the briefing, oral argument, and negotiations with OIL.
Gratefully,
Michelle N. Mendez | she/her/ella/elle
Director, Defending Vulnerable Populations Program
Catholic Legal Immigration Network, Inc. (CLINIC)
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In addition to the “normal” overall White Nationalist, racist agenda that EOIR “management” has carried out under the defeated regime, there was a good deal of misogyny 🤮 involved in the BIA’s gross mishandling of the “pregnancy issue,” as described by the Sixth Circuit. This misogynistic trend can be traced back directly to the unconstitutional and unethical actions of mysogynist White Nationalist AG Jeff Sessions 🤮 🦹🏿♂️🤡in the “Matter of A-B- Abomination.” ☠️⚰️🏴☠️👎🏻
Biased, anti-migrant decision-making in support of bogus enforcement gimmicks and White Nationalist anti-democracy agendas builds backlogs and kills, maims, and tortures “real” people! Migrants are people and persons, not “threats” and “bogus statistics.”
The “dehumanization” and “de-personification” of migrants, with the connivance of the tone-deaf and spineless GOP Supremes’ majority, is a serious, continuing threat to American democracy! It must stop! Justices who won’t treat migrants physically present in the U.S. or at our borders as “persons” under our Constitution — which they clearly are — do not belong on the Supremes! ⚖️🗽🇺🇸
I can also draw the lines connecting George Floyd, institutionalized racial injustice, voter suppression, riots at the Capitol, and the “Dred Scottification” of asylum seekers and other migrants by EOIR!
HINT TO JUDGE GARLAND:Michelle Mendez would be an outstanding choice to lead the “clean up and rebuild” program at EOIR and the BIA once the “Clown Show” 🤡🦹🏿♂️ is removed!🪠🧹 Put experts with practical experience like Rachel Nagger and Christopher Linas onto the bench, on the BIA, the Immigration Courts, and the Article III Judiciary to get the American Justice system functioning again!
The “judicial selection system” for the Immigration Courts and the Article III Judiciary has failed American democracy — big time — over the past four years. Fixing it must be part of your legacy!
The folks who preserved due process and our Constitution in the face of tyranny are mostly “on the outside looking in.” You need to get them “inside Government” — on the bench and in other key policy positions — and empower them to start cleaning up the ungodly mess left by four years of regime kakistocracy🤮☠️🤡⚰️👎🏻. “Same old, same old” (sadly, a tradition of Dem Administrations) won’t get the job done, now any more than it has in the past! New faces for a new start!
And, it starts with better judges @ EOIR, which is entirely under YOUR control!An EOIR that actually fulfills its noble, one-time vision of “Through teamwork and innovation being the world’s best tribunals guaranteeing fairness and due process for all” will be a model for fixing our failing Federal Courts — all the way up to the leaderless and complicit Supremes who failed, particularly in immigration, human rights, voting rights, and racial justice, to effectively and courageously stand up to the Trump-Miller White Nationalist agenda of hate and tyranny!
We are where we are today as a nation, to a large extent, because of the Supremes’ majority’s gross mishandling of the “Muslim Ban” cases which set a sorry standard for complicity and total lack of accountability for unconstitutional actions, racism, dishonesty, cowardly official bullying, and abandonment of ethics by the Executive that has brought our nation to the precipice! Life tenure was actually supposed to protect us from judges who wouldn’t protect our individual rights. In this case, it hasn’t gotten the job done! Better judges for a better America!
🇺🇸⚖️🗽👍🏼Due Process Forever! The EOIR Clown Show🤡🦹🏿♂️ ☠️⚰️Never!
How do you I know your country is in “deep dodo?” When Arnold Schwarzenegger and Jessie Ventura become the “voices of reason” and the “President” and his party are the “voices of treason.”
It’s likely that the movement to hold accountable and remove from Congress traitors like Cruz, Hawley, McCarthy, and the other Republicans who shamelessly and seditiously continued to support the anti-American lies, racist false narratives, and conspiracy theories that fueled Trump’s insurrection and domestic terrorism will die out over time. But, it shouldn’t!
As I write this, the GOP treasonists in the House are blocking what should be a unanimous resolution to invoke the 25th Amendment to remove this dangerous, unhinged, traitor/moron from the office he has abused and disgraced from Day One!
One reason why our democracy is on the ropes is that there hasn’t been any accountability whatsoever for Trump and his kakistocracy of thugs on the public payroll or for the GOP White Nationalist traitors and enablers in Congress who have furthered their grotesque abuses of humanity and our democratic institutions.
The lack of accountability is particularly glaring and disgusting for Trump’s lawyers, both in and out of Government, who have lied, misrepresented, and totally jettisoned ethics and “due diligence” in supporting and furthering Trump’s attacks on our democracy. Why is Rudy Giuliani, who led a coast to coast “conspiracy of lies and treason” in Federal and State Courts, before calling for armed rebellion against our Government, still walking free and “practicing” law? Why are Billy Barr, Gonzo Sessions, Don McGhan, Noel Francisco, and a host of others who lied, misrepresented, and abused their ethical obligations as well as their oaths of office happily ensconced in the private sector rather than being held accountable for their “crimes against humanity?”
Contrary to all the total BS 💩being spread by GOP Trump toadies, the unconstitutional, racist, illegal, violent, anti-democracy agenda of Trump, Miller, and the rest of of the Thugocracy/Kakistocracy was apparent from the “git go.”
And, Chief Justice Roberts and the other GOP Justices who helped roll out and encourage “Kristallnacht” by rubber-stamping the “Muslim ban,” “Let ‘Em Die In Mexico,” the “Bogus Wall of Misappropriated Funds,” stripping legal migrants of life-saving and health preserving benefits, helping fuel a DHS “reign of terror” directed at ethnic communities, and other neo-Nazi travesties should also tender their resignations to President Biden as of Jan 21, 2021! Intellectual dishonesty by judges and bad, righty biased (non)jurisprudence have real life consequences!
Trump and Miller told the Supremes precisely what their invidious racist, religiously biased, politically pandering intent was in all of these cases and the GOP Justices ignored it in favor of bogus, fabricated, right wing, authoritarian, racist driven, anti-democracy agendas thinly camouflaged by legal gobbledygook.
People die and lives are ruined forever when judges who are supposed to protect them instead “take a dive” for the forces of tyranny and cruelty! “Dred Scottification” (“dehumanization”) of Blacks, Latinos, Immigrants, and other People of Color by our highest Court is neither acceptable nor should it be “swept under the rug” as has happened all too often when the Supremes fail democracy and align themselves with anti-democracy racists and authoritarians.
For four years, the GOP Justices on the Supremes have treated due process, democratic institutions, and the lives of asylum seekers and other migrants (and to some extent their pro bono lawyers) as “jokes.” That’s because 1) neither they nor their families are rotting in Mexico or facing torture and death in El Salvador or some other failed state; and 2) this time, the right wing thugs they enable were across the street trashing our Capitol rather than storming the Supremes. Better Justices and Better Federal Judges for a Better America!
