"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.
Kate Morrissey Immigration & Human Rights Reporter San Diego Union Tribune
APRIL 6, 2022 1:33 PM PT
Customs and Border Protection officials are now processing Ukrainians fleeing Russia’s invasion of their country at the San Diego-Tijuana border through a pedestrian crossing that remains closed to the general public.
The move, according to volunteers helping the Ukrainians and the Tijuana mayor’s office, is to speed up how many Ukrainians border officials can process in a day. PedWest, the pedestrian crossing at the western end of the San Ysidro Port of Entry, has been closed to general traffic for the past two years.
At around 6 a.m. Wednesday morning, a busload of Ukrainians arrived at El Chaparral plaza on the south side of the crossing. That is where a camp of hundreds of mostly Central American and Mexican asylum seekers were camped for months, waiting for the Biden administration to open processing for refugee screenings. Mexican authorities bulldozed the camp in February, and the Biden administration has said that asylum processing won’t resume until May 23, with the exception of the Ukrainians.
DHS, with the assistance of NGOs, UNHCR, and other volunteers from the human rights community can screen those waiting over the next six weeks to insure that applicants with the strongest claims are moved to the front of the line in advance or even admitted under an “exception” (DHS seems to be able to invent these at their whim) before May 23.
That’s the way to establish an orderly, fair, and humane transition back to the rule of law at all border ports of entry!
Additionally, because Garland has basically abdicated his duty to restructure and restaff the Immigration Courts to provide fair, positive interpretations of what asylum cases should be granted and to establish practical evidentiary and proof standards, the Asylum Office can work with the UNHCR and asylum experts to fill the gap.
While the BIA might be intentionally short on positive asylum guidance, there are plenty of decent Circuit decisions and some unpublished IJ decisions out there that point the way toward a fair, generous, functional legal asylum system that will actually fulfill the humanitarian promise of older precedents. Cases such as the Supreme’s decision in Cardoza Fonseca; the BIA’s complimentary positive guidance in cases like Matter of Mogharrabi, Matter of Kasinga, Matter of O-Z- & I-Z-, and Matter of A-R-C-G-; and the regulations establishing a “presumption of future persecution” based on past persecution all point the way toward a much more generous, practical, and humane interpretation and application of U.S. asylum law.
Honest interpretations of asylum law disgracefully fell into disuse as the Trump regime improperly “weaponized” the Immigration Courts against asylum seekers and attempted to replace qualified Asylum Officers with patently unqualified Border Patrol Agents. But, despite a lackadaisical performance to date, the Biden Administration still has a golden opportunity to reverse the mistakes of the past and to lead the way to a better future. Whether they will take that opportunity remains to be seen!
Wendy Fry Watchdog & Accountability Team San Diego Union-TribuneDavid Hernandez Reporter San Diego Union-Tribune PHOTO: San Diego Union Tribune website
In the months before her death, Chavez Segovia had tried to cross the border at least two other times by land and had been expelled under Title 42, a Trump-era policy that allows the government to deny non-citizens entry into the country in response to the threat of COVID-19.
Migrant advocates have warned the strict border policy is pushing desperate people to take larger risks to try to cross the border into the United States, increasing the chances they become injured or killed.
“There are more people choosing to cross through dangerous routes, including the maritime crossing, because they don’t have the ability to present themselves at the ports because the ports are closed as a result of the Title 42 orders,” explained Pedro Rios, the director of the American Friends Service Committee’s U.S.-Mexico Border Program.
Chavez Segovia was trying to cross not just for work, but also because she was afraid, and was trying to claim asylum, said her sister, Gabriela, who is undocumented and living in northern California. She said Chavez Segovia tried to claim asylum on both previous crossing attempts.
Gabriela said she too was fearful of sharing details of her sister’s situation, especially because her sons remain in Mexico. But Gabriela said she wishes Chavez Segovia had gotten a chance to plead her case, and that U.S. border authorities had listened.
“Ella les dijo que viene de peligro; que corría peligro y ellos no le hicieron caso,” said Gabriela. “She told them she was coming from danger, that she was running from danger and they didn’t listen to her.
“What are you going to do? Wait until someone sits down and writes you a letter that says ‘I am threatening you.’ No, of course not, you’re going to go at the first opportunity,” said Gabriela, frustrated at the high bar of legal proof needed for one to make an asylum claim.
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Read the full article at the link.
Failure to listen, failure to treat humans fairly and humanely. Hmmm . . . . seem to have heard that recently:
An asylum seeker’s chances at protection hinge on numerous factors that often seem arbitrary — from location to nationality to individual judge assigned — according to a Union-Tribune analysis of immigration court records
By KATE MORRISSEY,
LAURYN SCHROEDER
AUG. 23, 2020
5 AM
For the world’s most vulnerable, protection in the United States has all but disappeared.
Wait times for asylum seekers at the U.S.-Mexico border that already seemed indefinite now seem impossible. Families struggle to find food and shelter to outlast a pandemic order with no end date.
Those who cross north are sent back to Mexico in a matter of hours — or even put onto planes back to the countries from which they fled — without any opportunity to explain why they came.
In its response to COVID-19, the Trump administration achieved what it long sought, a shutdown of the U.S. asylum system. And with new regulations introduced this summer, the administration has moved to squeeze out any real chance at refuge in case the pandemic order is lifted.
But even before the current president began his campaign against asylum in the United States, people often struggled to win protection — no matter how strong their cases appeared to be.
In its 40-year history, the system has chronically fallen short of its promise of safety.
RETURNED: PART II
The second in an occasional series in which the Union-Tribune explores the asylum system through the eyes of people who experience it firsthand, with drastically different outcomes.
The Trump administration has used statistics about grant rates to justify closing off access to asylum, saying that those who lose their cases are illegitimate asylum seekers.
The facts show a different story: Thousands of people turned away based not on the merits of their cases, but on the capriciousness of a system so riven with inequity that many outcomes seem little more than arbitrary.
A San Diego Union-Tribune analysis of 10 years of court outcomes uncovered many symptoms of the system’s biases — shortcomings that date to the system’s creation.
. . . .
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Read the rest of this eye-opening (for those not familiar with this broken, biased, and beyond dysfunctional system) article at the above link.
There can be no excuse for the “horror chamber” that this already broken, battered, and unfair system has devolved into. It will take genuine changes in expertise, attitude, courage, and intellectual integrity across all three branches of Government to get this system functioning in a fair, legal, and constitutional manner consistent with due process and our international obligations.
It also will require much better, more educated, more courageous, more practical, and more intellectually honest judges from the Immigration Courts (which must become independent from the Executive) all the way up to and including the Supremes.
Better judges for a better America! Life tenure means it won’t happen overnight. But, the process needs to begin now for our nation to survive and prosper!
We can’t achieve equal justice for all with so many judges who don’t believe in it, don’t have expertise in and a commitment to human rights, and don’t have the guts to stand up for the legal, constitutional, and human rights of all individuals coming before our justice system. That specifically includes the “most vulnerable among us” – asylum seekers and other of our fellow humans whose humanity and right to live seem to fall below the “radar screen” of the current Supremes’ majority!
Due Process Forever! “Dred Scottification” and complicity, never!
Kate Morrissey reports for the San Diego Union Tribune:
On the same day the first person in immigration custody in San Diego was confirmed to have the new coronavirus, the American Civil Liberties Union sued for the release of certain high-risk detainees at the region’s two detention centers.
In the lawsuit, ACLU attorneys argue that specific detainees at Otay Mesa Detention Center and Imperial Regional Detention Facility who have pre-existing conditions that would make severe symptoms of COVID-19 more likely should be released in order to protect them from likely exposure to the virus. Some similar cases, filed by other groups around the country, have been successful in getting immigrant detainees released.
This coverage of the coronavirus pandemic is part of your subscription to The San Diego Union-Tribune. We also provide free coverage as a service to our community.
“During this pandemic, we’ve seen institutions at all levels take these really drastic, life-altering measures to preserve public safety and community well being,” said Monika Langarica, an attorney with the ACLU of San Diego & Imperial Counties. “(U.S. Immigration and Customs Enforcement), which oversees massive detention operations across the country, rather than follow the course of these other institutions, has done almost the opposite.”
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Read the rest of Kate’s article at the above link.
Similar suits have produced mixed results throughout the country. While some U.S. District Judges have ordered or threatened to order the release of certain detainees, others have “blown off” legitimate health concerns and the failure of DHS and DOJ authorities to follow health guidelines during the pandemic.
Of course, the idea that social distancing, universal testing, basic hygiene, or individual protective equipment is being employed in any part of the “DHS Gulag” and the Immigration “Courts” is preposterous on its face. Yet, remarkably, some U.S. District Judges prefer the “show me the dead bodies approach” as an alternative to the sensible preventive measures recommended by health professionals. After all, “they are only aliens” in the eyes of the regime and some Federal Judges.
Others, more astutely, have recognized that those stuck in the Gulag and the never-ending dysfunction of the Immigration “Courts” are actually their fellow human beings, most without serious criminal convictions. They are also “persons” under the Fifth Amendment to the U.S. Constitution, entitled to have their health, safety, and lives protected from dangerous and unreasonable actions by the Federal Government.
But early one morning, she kissed her sleeping son goodbye. She had spent the night watching him in his bed. It was almost his 10th birthday.
“Fue el peor momento de mi vida,” Bárbara said. It was the worst moment of my life.
It had been nearly a year since Bárbara had been left for dead outside her clothing store, a victim of the Nicaraguan government’s bloody campaign to silence pro-democracy protests that rose up in 2018.
She knew she had to flee, but she didn’t think she could protect her son on the notorious migrant trail. She wasn’t willing to risk him.
So the 29-year-old entrepreneur escaped north alone, putting herself at the mercy of the U.S. asylum system — a system meant to protect the world’s most vulnerable.
RETURNED: PART I
The first in an occasional series in which the Union-Tribune explores the asylum system through the eyes of people who experience it firsthand, with drastically different outcomes.
The San Diego Union-Tribune is not fully identifying Bárbara or many of the witnesses interviewed in Nicaragua because of the danger that the government might retaliate against them or their families.
Bárbara is in Tijuana, one of tens of thousands of people waiting for a chance to argue for protection in the United States, part of a changing wave of migration that the Trump administration has labeled a crisis.
She exists in a constant state of uncertainty, and she realizes now just how much she underestimated the challenges that still lie ahead.
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For Kate’s full article including the “original formatting” and all of the great pictures and graphics accompanying it, click on the above link that will take you to the original article on the San Diego Union-Tribune website!
Thanks, Kate, for so beautifully capturing the “heart and soul” of the refugee experience and why the Trump regime’s intentionally cruel, illegal, immoral, and dehumanizing policies are undermining our humanity as a nation and everything we should stand for. These are human lives at stake, not “numbers,” “beds,” or “apprehensions.” Success is measured in lives saved, and fair treatment of all, not “numbers turned back” or how we can “discourage” or “deter” others from seeking refuge. Our legal system should be fair and impartial, not a “weaponized tool” for nativist immigration enforcement policies. Indeed, it supposedly is there too protect all of us against such political overreach and abuses.
Interestingly, there was a time in the past when the GOP and the Reagan Administration went out of its way to help and give refuge to those Nicaraguans fleeing the Sandinistas and Daniel Ortega. The Nicaraguan and Central American Relief Act (“NACARA”), one of the best, most effective, and most efficient pieces of immigration legislation ever passed, was a result of bipartisan support for providing permanent relief to Nicaraguans, El Salvadorans, and Guatemalans fleeing the mess in Central American that our Government played a significant role in creating. Some off those fleeing Cuba and Eastern Europe also were covered. Now, under the influence of Trump, neo-fascist Stephen Miller, and the rest of the White Nationalist nativist gang, this GOP-led regime simply turns its back on vulnerable refugees like Barbara, the human carnage resulting from Ortega’s misrule of Nicaragua.
Perhaps in the future, Kate will put it all together in a book. Hope so!
Kate Morrissey reports for the San Diego Union-Tribune and LA Times:
Judge orders U.S. to hold asylum seeker
Doubtful about his mental state, jurist prevents migrant from being sent to Mexico.
By Kate Morrissey
SAN DIEGO — An immigration judge has ordered the Department of Homeland Security to keep a Honduran asylum seeker in the United States while he waits for his court proceedings, instead of returning him to Mexico again under a Trump administration program.
Judge Scott Simpson said that after evaluating the man’s mental competence in a special hearing on Friday, he found that the man would need safeguards in his case to ensure due process. He ordered one put in place immediately: to remove the man from a program known officially as Migrant Protection Protocols and more widely as “Remain in Mexico.”
“I find that he lacks a rational and factual understanding of the nature of the proceedings,” Simpson said in issuing his order.
This is the first time that a judge has made such a ruling since the program was implemented in January, according to advocates who have been monitoring immigration court proceedings.
The program requires certain asylum seekers from Honduras, El Salvador and Guatemala to wait in Mexico while their cases progress in immigration court. The man has been waiting in Tijuana as part of the program for several months.
A Customs and Border Protection guide for officials implementing the program says that migrants with known physical or mental health issues should not be included.
“It’s a big deal that a judge recognized that there was a predatory nature to having put this person in the ‘Migrant Persecution Protocols,’ ” said Ian Philabaum of Innovation Law Lab, calling the program a name used by some immigrant rights advocates. “He wasn’t going to have a chance, and now he gets a chance.”
At the man’s first hearing in March, Simpson quickly became concerned that the man might have a mental competency issue that would make him ineligible for the program or require other protections. He ordered DHS to evaluate the man’s mental state.
Simpson asked government attorneys at each hearing after that whether the man’s mental state had been evaluated and whether the government believed he should continue to be included in the program.
Each time, the government attorney responded that the man should continue in MPP.
Still skeptical, Simpson told Immigration and Customs Enforcement attorney Dan Hua to be prepared to give details Friday about DHS’s evaluation of the man before he was returned to Mexico. When the judge came into court Friday morning, Hua was not able to answer that question.
“The government’s inability to provide that information is simply not excusable,” Simpson said. He gave Hua 30 minutes to find out answers.
Hua said immigration officials at the port of entry had evaluated the man each time he’d come to court, meaning that as of Friday, he’d been evaluated four times.
The attorney could not produce evidence showing what the evaluation observed or what standard it used when the judge pressed for more details.
Philabaum said that fact was significant.
“That assessment of the mental competency was performed on four different occasions, and on four different occasions, according to the U.S. government attorney, their assessment was he was perfectly competent to proceed with his immigration case representing himself,” Philabaum said. But in the man’s “first hearing, it took the immigration judge approximately two minutes to realize there was an issue of competency here.
“Whatever type of standard that CBP has instituted to assess the competency of an individual to be eligible, according to the immigration judge today, it has failed.”
DHS officials, CBP officials and Department of Justice officials did respond to a request for comment.
Simpson decided to do his own evaluation of the man’s mental state under an immigration court precedent known as the Matter of MAM.
He listed the rights that the man has, such as the right to present evidence and the right to question witnesses. He asked if the man understood his rights.
“Um, yes. I need more,” said the man through a Spanish interpreter. “I need more because here I only have some letters, some birth certificates. They’re not translated into English yet.”
“Sir, I’m the immigration judge in your case. It’s my job to decide whether you can stay in the United States,” Simpson said. “In your own words, tell me who am I and what’s my job.”
“I cannot understand you,” the man responded.
In the end, the man was only able to appropriately respond to simple questions such as the date and what city he was in. He told the judge he had not had much schooling and couldn’t read or write.
ICE later confirmed the man is pending transfer to the agency’s custody. He could be taken to an immigration detention facility or released “on parole” into the U.S. to a sponsor while he waits for his next hearing.
Simpson said that depending which option the government chooses, other safeguards may be necessary, including providing an attorney for him if he’s detained.
Morrissey writes for the San Diego Union-Tribune.
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Every day the human carnage mounts as the 9th Circuit continues to “sponsor” Trump’s illegal, deadly, and unconstitutional “Remain in Mexico Program.” Interesting how a few non-life-tenured Immigration Judges in San Diego and one courageous U.S. District Judge in the Southern District of California seem to be the only Federal officials interested in either the rule of law or the Due Process Clause of our Constitution. Go figure!
Congrats to Judge Scott Simpson for standing up for the rule of law and the rights of the most vulnerable in the face of massive dereliction of duty by those higher up the line.
Sadly, unlike the 9th Circuit, Judge Simpson lacks authority to enjoin further violations of the law and human rights by the Trump Administration. How many more human beings will suffer, be wronged, and perhaps die as a result of the 9th Circuit’s complicity in scofflaw behavior having little or nothing to do with protecting our borders or any other legitimate policy end and everything to do with punishing and dehumanizing those who seek justice under our laws.?
Alexandria, VA, June 9, 2019.After a week of petulance, threats, and self-created drama, Trump produced a resounding trade and immigration dud. Faced with advisors telling him that he was endangering the economy, the only thing propping up his sagging popularity, a potential rebellion among GOP legislators, and an unexpectedly tough and resolute Mexico, Trump backed off of his insane and blatantly illegal plan to ignore U.S. asylum obligations and thereby rocket the U.S. to the upper echelons of international scofflaws and human rights violators.
The latter scheme, known as “safe third country,” would have mis-designated Mexico and, incredibly, Guatemala, two clearly “unsafe” countries to do the U.S.’s job by processing tens of thousands of asylum applications from those fleeing the Northern Triangle. Neither of the two countries has a viable, fair, and effective asylum adjudication system and both have major safety and human rights issues.
Instead, Trump accepted a vague compact by which Mexico and the U.S. basically agreed to do what they had already been doing without taking any decisive or effective action to address the actual humanitarian crisis in the Northern Triangle that Trump and his flunkies have consistently mischaracterized as a “law enforcement emergency.” Indeed, the New York Times reported that most of Mexico’s “unprecedented steps” had already been worked out in secret with deposed DHS Secretary Kirstjen Nielsen months ago. https://www.nytimes.com/2019/06/08/us/politics/trump-mexico-deal-tariffs.html. Those interested can read the summary of the agreement prepared by Trump’s own State Department here. https://www.latimes.com/politics/la-na-pol-us-mexico-tariffs-declaration-20190607-story.html.
To be sure, desperate and vulnerable asylum seekers, particularly women and children, will continue to abused, raped, beaten, extorted, obscenely tortured, and killed with impunity and little if any recourse as a result of this week’s actions. But, at least for now, the U.S. and Mexico are maintaining much of the basic framework of domestic and international protection laws.
Contrary to the lies and false narratives spread by Trump and his DHS cronies, U.S. law is not filled with “loopholes.” Rather, it is a fairly straightforward implementation of the international protection regime and treaties that have been in effect since World War II to prevent another holocaust from occurring on our watch.
If anything, since the enactment of the Refugee Act of 1980, the U.S. has watered down its asylum commitment somewhat by adding a legally tenuous “credible fear” process to “pre-screen” arriving asylum applicants in mass migration situations. However, to date, the DHS under Trump has been too incompetent, misdirected, and frankly downright stupid to utilize this streamlined screening process fairly and efficiently.
By treating a somewhat predictable humanitarian refugee flow as a bogus “law enforcement problem” and mindlessly shoving cases into a “captive” court system that they already had abused, mismanaged, and destroyed, the Administration lost effective control. In panic, they have tried to blame the refugees, Democrats, Mexico, Obama, judges, the media, and even the truly hapless failed states of the Northern Triangle for their largely self-created human and operational disaster.
The first of the “unprecedented steps,” involves Mexico sending approximately 6,000 National Guard troops to the Guatemalan border to control illegal crossings. Never mind that the Mexican National Guard is a recent creation that exists largely on paper. Also, forget that Mexico has a questionable record of controlling corruption and systematic human rights abuses among its existing police and military forces.
The U.S., a much larger, better organized, and more prosperous country than Mexico, has resorted to militarizing the border, mass incarceration, family concentration camps, kids in cages, malicious criminal prosecutions, family separations, walls, fences, overt political interference in the asylum adjudication system, and violating international protection norms. These “gonzo” enforcement efforts not only failed to stem the tide, but have actually aided smugglers and traffickers and increased the flow of migrants.
Will newly minted, untrained Mexican troops succeed where the might of the U.S. has failed miserably? Don’t count on it.
Also, the last time I checked, it appeared that most of the Mexican coast and some parts of the U.S. are reasonably accessible by boat from the Northern Triangle. So, assuming that the Mexicans could “shut down” their land border with Guatemala, why wouldn’t smugglers “take to the sea?” How’s that Mexican Navy?
The second “unprecedented step,” is a continuation and expansion of the existing “Remain in Mexico Program.” This toxic gimmick punishes those who have been legally determined to have a “credible fear” of persecution by making them remain in some of the most dangerous locations in the world where they are intentionally and illegally impeded in many ways from pursuing their U.S. asylum claims from Mexico. To date, this program has only been implemented in a few locations, like San Diego where it has been an unmitigated failure according to a report from Kate Morrissey of the San Diego Union-Tribune. https://immigrationcourtside.com/2019/06/06/cruel-yet-really-stupid-trumps-remain-in-mexico-policy-denies-due-process-while-creating-court-chaos-enfeebled-judges-fume-as-aimless-docket-reshufflin/.
The results of this ill-advised effort by Trump to circumvent U.S. asylum laws reads like a “legal toxicology report:” “Aimless Docket Reshuffling,” mass confusion, lack of information, insufficient and deficient hearing notices, massive violations of the statutory right to be represented by counsel, no opportunity to fairly prepare, document, and present asylum claims, interference with the attorney-client relationship by DHS, and few actual case completions to name just a few of the many abuses. And, how will an already dysfunctional EOIR deal with yet another round of “new priorities” and more “Aimless Docket Reshuffling?”
A Federal District Judge actually enjoined this circus before it could get rolling. But, a “tone-deaf panel” of the Ninth Circuit allowed Trump’s assault on the rule of law to go forward, at least for now.
Nevertheless, the case remains pending with the Ninth Circuit. As EOIR’s rushed and sloppy work product starts to accumulate on their docket and the bodies and horror stories start to pile up in Mexico, more responsible Circuit Judges might actually force the Administration to comply with the law and the Constitution, not to mention simple human decency.
Mexico has pledged to “accept and protect” those sentenced to remain there. But, the Mexican border locations to which individuals are forced to return are dangerous for a reason. Presumably, if Mexican can’t maintain safety and order for its own citizens, it won’t do any better for vulnerable asylum seekers.
Finally, in third “unprecedented step,” Mexico and the U.S. agreed to promote the “Comprehensive Development Plan launched by the government of Mexico in concert with the governments of El Salvador, Guatemala and Honduras” to create “prosperity, good governance and security in Central America.” This part of the agreement makes the most sense. But “promoting” in this case appears limited to using development funds that were “already in the pipeline” in both countries. In other words, nothing really new here.
This was a golden opportunity for the U.S. to show real leadership by dramatically increasing its investment in bringing stability and prosperity to Mexico and Central America. Additionally, we could have created incentives (rather than threats) and benchmarks for Mexico to improve its asylum adjudication system and human rights performance. Partnering with non-governmental-organizations and legal assistance groups on both sides of the border also would bring much needed expertise in resolving asylum issues to the table.
But, that would have taken a President with vision, empathy, compassion, courage, competency, intelligence, and creative problem solving ability. Trump is the exact antithesis of all of these qualities.
Consequently, sooner or later we can expect Trump’s “latest egg” to fail, like all of his other gimmicks and maliciously incompetent schemes on immigration. Our “child president” will undoubtedly then embark on a new barrage of lies, false narratives, idiotic tweets, idle threats, blame shifting, insults, racist dog whistles, and general nonsense aimed at diverting attention from his own failures as a leader and more critically, as a human being.
Innocent people will be harmed and die, America and Mexico will be embarrassed and diminished, and the world will be a worse place. But, until America figures out how to use its democratic institutions to remove the kakistocracy, the disaster will continue. That it could have been worse, is only small consolation.
Why not strive to bethe “best that we can be,” rather than just “not as bad as we might have been?”
SAN DIEGO — The San Diego immigration court has been overwhelmed by the number of cases judges are hearing under a Trump administration program that returns asylum seekers to Mexico while they wait for hearings in the U.S.
Normally, asylum seekers coming to the California border would be distributed to immigration courts across the country, either because they would be held somewhere in the federal government’s national immigration detention system or because they would be released to reunite with family and friends already in the U.S.
Now, the increasing number of people picked for the administration’s Migrant Protection Protocols, known widely as the Remain in Mexico program, across the California border are all being sent to immigration court in downtown San Diego.
“Other than wallow through it, I don’t know what we can do,” said Immigration Judge Lee O’Connor shortly before walking out of his courtroom at 6:21 p.m. one evening last week after hearing a string of MPP cases. Court staff, including security, had left the building long before.
Immigration judges are already working under performance quotas set by the Trump administration to reduce the immigration court backlog, which has grown nationally to nearly 900,000 cases, according to data from the Transactional Record Access Clearinghouse of Syracuse University.
The San Diego court has more than 5,700 cases pending, up from 4,692 cases in fiscal 2018, a 22.4% increase. Nationally, the backlog has grown about 16.2% in fiscal 2019.
“This is a reflection of the constant doublespeak we’ve been highlighting. The agency has internally conflicting priorities,” said Ashley Tabaddor, speaking in her capacity as head of the National Assn. of Immigration Judges. “It creates chaos.”
On a given day, three of San Diego’s seven judges generally have afternoons full of MPP cases. On a recent Tuesday afternoon, 82 people were scheduled to appear before three judges, 28 of those before O’Connor.
“The judges have no control in terms of how many cases are being scheduled,” Tabaddor said.
Border officials who initially receive migrants either requesting protection at a port of entry or after they’re apprehended crossing illegally are responsible for scheduling the first court appearance for returnees.
Customs and Border Protection did not respond to a request for comment. The Department of Homeland Security was unable to respond to questions in time for publication.
Several of the judges assigned to hear cases in San Diego have pushed back on the government for a laundry list of issues that could be violations of the government’s due process responsibilities under immigration law.
Tabaddor said she’s heard a number of concerns from her union members who are trying to make sure “all of the T’s are crossed and all of the i’s are dotted” in implementation of the new program. “That’s what the oath of office is,” Tabaddor said. “You’re supposed to make sure all the rules are followed.”
One that has come up over and over again is the address put down initially on each asylum seeker’s case documents by border officials. Along the California border, Customs and Border Protection and Border Patrol have written some version of “Domicilio conocido,” or “known address.”
Some have “Tijuana, Baja California, Mexico.” Others simply say “Baja California” without the city or the country noted.
Having an accurate address on file is key to showing that immigrants were given proper notice of their court hearings. That proof of notice is a crucial part of a judge’s decision to proceed “in absentia” and order a person deported if he or she doesn’t show up for a hearing.
“This whole program, I don’t understand it,” said Immigration Judge Jesús Clemente on his first day of hearing MPP cases. “How are we ever going to tell this person that he has a hearing?”
Similarly, when an government attorney suggested that it was the asylum seeker’s responsibility to provide an accurate address, Immigration Judge Scott Simpson responded with incredulity. “Are you saying the respondent provided this address?” he asked, referring to the asylum seeker. “Are you saying every respondent in the MPP program provided this address?”
“I can’t speak to that,” the attorney representing ICE responded. “In my experience, the address the respondent provides is what is put down.”
“That’s how it usually works,” Simpson replied. “But I’m not convinced that’s what’s happening now.”
When asked about the address issue recently, San Ysidro Port of Entry Director Sidney Aki said that migrants don’t often know where they will be staying when they’re first returned.
To prevent any miscommunication, Aki said, they’re told to return to the port of entry at a particular date and time.
Normally, if a judge believes that the government violated an asylum seeker’s due process rights, the judge can terminate immigration proceedings against that person, said attorney Lindsay Toczylowski, executive director of Immigrant Defenders Law Center. Then the asylum seeker can apply for protection outside of immigration court in a process that is less adversarial.
For returnees who are ultimately hoping for asylum in the U.S., termination won’t help them because they’ll be returned to Mexico with no access to the U.S. asylum system, she said.
“It essentially removes their ability to vindicate their due process rights,” Toczylowski said.
Among other issues, the dates on instructions given to returnees that explain when to come back to the San Ysidro Port of Entry to be taken to court don’t always match the dates on their hearing notices. Or, the government fails to file the preliminary paperwork in the case and the immigration court doesn’t have a hearing scheduled for the person when he or she shows up.
“I’m sure you’re frustrated,” Simpson said to a man whose paperwork had not properly been filed by the government, resulting in a delay in the start of his case. “I share your frustration.”
Asylum cases typically have several preliminary hearings, known as “master calendar hearings,” before the “merits hearing,” where evidence is presented for the judge to make a decision on the person’s claim. During those master calendar hearings, asylum seekers are given time to look for attorneys, are told their rights in immigration court, and are given applications to fill out and submit.
Juan, a doctor who fled Honduras after facing threats for his participation in political protest, filed his asylum application in mid-May. His merits hearing was scheduled for November.
Where to live and how to sustain themselves in Tijuana is becoming a larger and larger issue as more asylum seekers are returned. Despite its promises at the program’s outset, Mexico has not given many of the returnees permission to work while they wait.
Tijuana’s migrant shelters are already at or near capacity, and most of the people staying in them are not returnees from the program.
One returnee who had become homeless and tried crossing illegally only to be returned again to Tijuana said he was planning on going back to his country in the coming days. It would be better to die there, he said, than to continue living as he’s been living in Tijuana.
Juan is one of the lucky ones. He is staying at a shelter near the border. Still, he’s worried about the long wait ahead.
“The policy’s name is migrant protection, but they send you to the most dangerous city in Mexico,” he said.
Morrissey writes for the San Diego Union-Tribune.
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The Ninth Circuit had an opportunity to put at least a temporary halt to this blatant denial of the statutory right to counsel and the constitutional right to adequate notice and Due Process. They “swallowed the whistle.” Eventually, these feckless and complicit Article III courts will find their own dockets overwhelmed with the results of their inaction in the face of a Due Process, operational, and human rights disaster of gargantuan proportions in the U.S. Immigration Courts as mal-administered by the DOJ.
Of course, the real culprit is Congress, which has failed to act to require an independent, constitutional U.S. Immigration Court. But, the word “feckless” doesn’t begin to describe a body that under Mitch McConnell has intentionally ceded its constitutional power to govern and oversee in the overall public interest to an unqualified, scofflaw President who respects neither democratic institutions nor the rule of law.
Kate Morrissey reports for the San Diego Union Tribune:
Two of the three asylum seekers who were supposed to show up for the first immigration court hearings under the “Remain in Mexico” policy did not make it across the border on Thursday to appear.
After the Homeland Security Secretary announced what she called a “historic” program, known officially as Migrant Protection Protocols, in December, many wondered — and worried — about the logistics of shuttling migrants back and forth across the border for court hearings.At least one of the people who had been returned to Tijuana after asking for asylum at the San Ysidro Port of Entry missed the court hearings because of what Assistant Chief Immigration Judge Rico Bartolomei called a “glitch” in the scheduling system.
Court cases for the program were supposed to start next Tuesday, but somehow cases got scheduled for this Thursday, Bartolomei explained. At first, the court tried to reschedule those hearings for Tuesday but realized it wouldn’t have a way to communicate that effectively with the asylum seekers in Mexico.
The issue was that when the court rescheduled to March 19, anyone who called its toll-free number to check for court date updates thought that the hearings would be on March 19. That happened in the case of one Honduran woman who had Los Angeles-based attorney Olga Badilla representing her.
Badilla explained to the judge that she had only learned the day before that the hearing had moved back to March 14 and that her client hadn’t found out in time to be at the port of entry at 9 a.m. She arrived a couple of hours later, but Customs and Border Protection officers wouldn’t let her into the U.S. for her hearing.
“She’s present at the port of entry and ready to come in,” Badilla told the judge, asking for the court’s help. “It’s an unusual situation given the circumstances.”
Aguilar said the judge should order the woman deported in her absence.
Bartolomei denied that motion, saying that the woman had received “insufficient notice” of the hearing. Instead, he scheduled a future date with Badilla to turn in the woman’s asylum application.
Though the woman was given another chance to show up for court, she ran into more problems down at the border. Her permit to stay in Mexico was on the verge of expiring in anticipation of her crossing into the U.S. for court. If she had crossed and returned again, she would likely get a new one. Without entering the U.S., she was about to become deportable from Mexico.
When court ended for the day, Badilla went to try to help her client.
The other person who didn’t show up for court, a 24-year-old man from Honduras, had also had his case rescheduled through the court’s glitch.
ICE attorney Aguilar again moved to have the man ordered deported.
Bartolomei pushed the ICE attorney about whether it made sense to order someone deported from the U.S. while they are still in Mexico. He asked if it made more sense to consider the person’s application for admission withdrawn.
According to immigration attorney Tammy Lin, a withdrawal would limit potential restrictions on the man’s ability to come to the U.S. in the future. A deportation order would make it much more difficult for the man to come to the U.S.
During the conversation, Bartolomei sighed audibly, weighing the options before him.
Then he decided to reschedule his case for the 19th to see if the man showed up then. Since he didn’t have an address to send the new hearing notice to, he gave it to the Department of Homeland Security to pass on to the man.
The one person who did show up did not have an attorney. Also from Honduras, the man arrived at El Chaparral plaza outside the port of entry well before 9 a.m. A volunteer from a legal services organization that supports migrants in the plaza every morning before they ask for asylum saw him and escorted him to the gate inside the port that marks the entry to the U.S.
He waited in line, shuffling down the spiral walkway in a mix of commuters, shoppers and friends returning from trips abroad. When he got to the front of the line, a Customs and Border Protection official held him to the side to wait for the other two who were supposed to come.
He was nervous, he said.
A few minutes after 9 a.m., several CBP officers and two plainclothes officials took him into the U.S. Officers from Immigration and Customs Enforcement transported him from the port of entry to the office building in downtown San Diego that houses the immigration court.
He arrived at the court before noon and sat in a corner of the back row of benches, head bowed.
When it was his turn to face the judge, he spoke softly into the microphone and watched attentively as Bartolomei explained each of the documents he had received.
Bartolomei asked him if he wanted more time to find an attorney.
Yes, the man replied.
The judge granted him another month to try to find someone to help him and told him he would likely be taken back to Mexico again.
“I know it will be difficult to try to get an attorney from there,” Bartolomei told him, urging him to try his best to find a lawyer to take his case.
When his turn was over, ICE officers quickly whisked him away, back to the port of entry.
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Notice will continue to be an issue in this ill-designed process. It actually appears that it will be impossible to properly serve anyone at a “last known address” in Mexico. Thus, any in absentia hearings should ultimately be vacated for lack of notice and will have to be re-started. That’s what “ADR” is all about.
The ICE Attorney was both unhelpful and probably unethical when he insisted on frivolously moving for an “in absentia” order given the obvious scheduling and notice issues attributable to his agency’s choice of this “historically” goofed up and perhaps illegal method of proceeding. Unwillingness to assume any responsibility for their own frequent screw ups and predictably bad policy choices is certainly a “hallmark” of the Trump Administration!
Once of the things that made the Arlington Immigration Court run as well as it did during my tenure was the sense of justice, common sense, practicality, and overall cooperation and helpfulness of the ICE Chief Counsel’s Office in working with the Immigration Judges and private bar to “keeping the ball moving down the field.” Apparently deprived of such a professional approach by the mindless “due process and common sense be damned policies” of this Administration, today’s Immigration Judges face additional roadblocks in promoting efficiency and fairness in accordance with the law. No wonder the backlogs are growing exponentially even with more Immigration Judges on the bench!
Here’s how might a “due process and efficiency-oriented system” could have dealt with the same issues:
Work with the private sector to obtain local counsel for individuals who have passed the “credible fear” process;
Find out how long it will take the lawyer to prepare the application for asylum for filing with the Immigration Court;
Choose a compatable date for filing at the “Initial Master” from a computerized list of “available first Master dates” on Judge Bartolomei’s calendar made available by EOIR;
Release the applicant to a local nonprofit who will help insure that he or she understands the system and the importance of keeping attorney meetings and appearing before the Immigration Court as scheduled;
At the first Master, the attorney files the completed asylum application with Judge Bartolomei, and he assigns an Individual Hearing date;
Presto! A system that works, uses court and judicial time wisely, and promotes fair and efficient results.
Contrast that with the mindless system described above. The key: under the current system everybody has wasted time and effort, particularly Judge Bartholomei, but without getting any closer to assigning an actual Individual Hearing date than on the day the applicant passed “credible fear.”
That’s how Government-created “bogus emergencies” happen. It’s really important that folks like Kate keep reporting on the “nitty gritty” of the Trump Administration’s “malicious incompetence” and how it is destroying and degrading our immigration and justice systems on a daily basis.
Undoubtedly, this Administration will attempt to shift blame for its own predictable failures to the victims — asylum seekers, their lawyers, and Immigration Judges. It’s important that the Trump Administration be held fully accountable, both in the present and for history, for the consequences of their terrible White Nationalist restrictionist agenda.
Kate Morrissey writes in the San Diego Union-Tribune:
Constantin Bakala and his family have survived kidnapping, torture, rape, poison and a shipwreck.
Now, faced with the complexities of the U.S. immigration system, they may be on the verge of defeat.
Bakala, 48, and his family fled their home in the Democratic Republic of Congo in late 2016 after they were targeted for Bakala’s participation in an opposition party that promoted democracy in the country, according to his wife.
After traveling through more than 10 countries, the family arrived at the San Ysidro Port of Entry in November 2017. Bakala was separated from his wife and seven children and sent to an immigration detention center in Georgia while they were released to live in the San Diego area, a common practice at the time. He hasn’t seen them since.
Because they were separated physically, their cases were also handled separately in immigration court. Since the federal government prioritizes detained cases, Bakala’s finished before the family’s even began, according to their attorney.
Unable to find an attorney to represent him at the detention center in rural Georgia and with little money to even pay for phone calls to the outside world to try to get help, Bakala faced by himself an immigration court known for being tough on asylum seekers. Judge Michael Baird, who heard his case, granted 11 of the 152 asylum cases that he decided between fiscal 2013 and 2018, records show.
Bakala lost.
He tried to appeal the case by himself and was denied that as well, according to court records. Now the family, with the help of a San Diego church, has found an attorney to help him, but it may be too late.
He is convinced that if he returns to the Democratic Republic of Congo, he will be murdered by his own government.
Bakala’s party membership card shows he was part of the Rassemblement des Congolais Démocrates et Nationalistes, or RCDN, which opposed former president Joseph Kabila’s maneuvers to stay in power past his term limit. When Bakala wasn’t at his job at the Ministry of Health, he worked with the party’s youth and advised them on how to demonstrate peacefully against the ruling party, his wife Annie Bwetu Kapongo said.
Bwetu Kapongo tells their story slowly, haltingly, sometimes with painful detail and sometimes in circles, a symptom of the trauma she carries from what happened.
She remembers when her husband first told her about getting threatened, and she remembers the day he went missing in 2016.
When she went to the police to ask for help finding him, she was locked in a room that reeked of urine. Later, three policemen came in, beat her and raped her. She tried to stop them and pointed out that she was pregnant.
The men didn’t care, she said. She ended up losing the baby.
When she was eventually able to return home, her husband was still missing. The two stores she owned, one that sold fish and one that sold cakes and juice, were broken into and robbed by people looking for her husband, who had by this point escaped where he had been imprisoned and tortured, according to his attorney.
One night, Bwetu Kapongo woke up to the family dog’s aggressive barking before hearing it abruptly stop. They found the dog dead the next day.
Another night, she and the children got sick. Their heads were spinning, and they were vomiting. Eventually, they found a tool someone had used to release poison into the house, she said.
Finally, one night she heard a knock on her window. It was her husband.
Aided by people he’d brought to help the family, they scooped the children out of their beds while they were sleeping and fled in a boat down a river to the Republic of Congo, where the people helping them paid for their hotel, Bwetu Kapongo said.
They waited a couple of months there until they had travel documents to get to Brazil and left in early 2017 to begin a grueling journey to the U.S. border.
“We came because America respects the law, and they know how to protect people,” Bwetu Kapongo said through a translator.
In each of the countries they passed through, officials told them that they could not stay, she added. They were sent from Panama back to Colombia when they tried to get across the border by boat and ended up having to make the grueling 6- to 7-day walk through the jungle to Costa Rica.
In Costa Rica, they found a boat that would take them to Nicaragua.
After they’d been on it for about 45 minutes, Bwetu Kapongo heard shots fired at them. She told her children to lay down. Then, the boat broke, she said, and it began to sink.All of a sudden, her youngest child Joseph, who is now 5, was no longer in her arms.
She started to drown.
“Is this a nightmare? Is this real? Is this happening?” she recalled asking the darkness that surrounded her.
She felt other bodies in the water, hands pushing her head down as they tried desperately to reach the surface. She felt someone clutch her neck. It was David, her 12-year-old son.
When a rescue boat pulled her to safety, she found her 17-year-old daughter Marie Louise. Bwetu Kapongo began to pray, crying out the names of her five other children and asking God to find them. Her husband was soon rescued from the water and prayed with her.
When rescuers noticed bubbles moving in the water, they found Joseph along with 8-year-old Moses and 10-year-old Augustine clinging to a rope and pulled them to safety.
Emmanuel, her 15-year-old son, had been carried further away into the water with 14-year-old Daniel. They found a life preserver that had been thrown into the water and clung to it, bringing with them two girls from another family who were also nearly drowning.
When Emmanuel used the last of his strength to cry out, rescuers found them, Bwetu Kapongo said. Two people who had been on the boat died, one adult and one child.
Though the family survived, all of the documents and photos that could have been used as evidence were lost in the water.
They would have to journey by boat two more times between Costa Rica and Nicaragua before successfully making it the rest of the way up to the U.S. border.
Bwetu Kapongo said she expected to receive “protection and respect” when they arrived. Instead, her husband was quickly taken away.
It is only when she reaches this point in the story that she begins to cry.
She wouldn’t hear from him for about a month. He told her that he didn’t know how to find her, that it took that long for officials to give him information about where she was.
The family’s attorney Julie Hartlé said the family’s story is “horrific but not unusual.” Other attorneys she knows have had similar cases.
“This family meets every criteria. They were persecuted for being democracy activists, kidnapped and tortured by their own government,” Hartlé said. “It meets the exact definition of asylum for political persecution. It should’ve been straightforward. They were able to use the detention system against them.”
Bakala had to fill out his asylum application in English, a language he does not speak well. Though he told the judge verbally about three times he was taken by police, how he was beaten, interrogated and held without food, he only put information about one of the incidents in his application.
“That sounds like a pretty bad event,” the judge said in his ruling of one of the incidents Bakala described. “Unfortunately, it is never mentioned anywhere in the respondent’s application for asylum.”
The evidence that Bakala was able to gather and present — including a notice from his political party about his disappearance, another notice that the ruling party was looking for him, his voter ID card and party membership card — was not translated into English, so the judge said he couldn’t consider it, according to court records. He found Bakala’s story not credible.
The Executive Office for Immigration Review said it does not comment on judges’ decisions.
Neither Immigration and Customs Enforcement nor Customs and Border Protection were able to respond to request for comment in time for publication.
As immigration officials prepared to deport Bakala, attorneys filed emergency motions to temporarily keep him in the U.S. to try to reopen his case with new evidence. Last week, the 11th Circuit granted him a stay until Friday.
In the meantime, members of the church helping the family here in San Diego are planning a protest outside of the federal building at noon on Thursday in support of Bakala.
Bwetu Kapongo said the most important thing for her is protection for her children.
“He sacrificed his life to protect his kids,” she said in French. “If we hadn’t done what we did, they would already be dead.”
Beyond that, she wishes for her husband’s return. She tries to hide her exhaustion and her tears from her children, but she doesn’t think she can raise them alone.
“After the mountain I went through, I’ve got no more strength,” she said.
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So, how might a real judge, one committed to guaranteeing fundamental fairness, due process, and properly applying the generous dictates of U.S. asylum law have approached this case?
First, Bakala comes from a country, the Democratic Republic of Congo (“DRC”) which is one of the most repressive regimes in the world, where persecution is rampant. For example, the DRC received a score of 17 on a scale of 100 in the latest Freedom House freedom rankings.
Here’s a quote from the most recent U.S. State Department Country Report summarizing the daily horrors of life in the DRC:
The most significant human rights issues included: unlawful killings; disappearances and abductions; torture and other cruel, inhuman, and degrading treatment and punishment, including sexual and gender-based violence (SGBV) and rape; life-threatening conditions in prisons and detention facilities; arbitrary arrests and prolonged detention; denial of fair public trial; arbitrary interference with privacy, family, and home; restrictions on freedoms of speech and the press, assembly, and association; abuse of internally displaced persons (IDPs); inability of citizens to change their government through democratic means; harassment of civil society, opposition, and religious leaders; corruption and a lack of transparency at all levels of government; violence and stigmatization against women, children, persons with disabilities, ethnic minorities, indigenous persons, lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons, and persons with albinism, with little government action to investigate, prosecute, or hold perpetrators accountable; trafficking in persons, including forced labor, including by children; and violations of worker rights.
Authorities often took no steps to investigate, prosecute, or punish officials who committed abuses, whether in the security forces or elsewhere in the government, and impunity for human rights abuses was a problem.
Therefore, knowing that Bakala comes from a notorious “refugee producing country,” the Immigration Judge should have insisted as a matter of due process and fundamental fairness that the case be continued until the respondent could get the assistance of a competent lawyer to fully and fairly present a case for saving his life.
Asylum law has been made intentionally and unnecessarily complicated by a politicized system run with a strong enforcement bias; statistics, as well as experience, show that unrepresented individuals have virtually no realistic chance of success, particularly in a system run by an Administration clearly prejudiced against them. Human lives become mere “case completions.”
Second, Bakala’s wife also appears to have a strong asylum claim in her own right. If granted, he could also have been protected as a derivative asylee under his wife’s application. Therefore, unless ICE were basically willing to stipulate to an asylum grant, proceeding with the cases separately was presumptively unfair. A judge committed to fairness, would have “pushed” the ICE Counsel on why this family’s cases were not being heard together.
Third, to justify an adverse credibility finding under the statute and BIA precedents, the judge’s ruling must demonstrate significant discrepancies or omissions, provide cogent reasoning, and carefully consider and give reasons for not accepting the respondent’s explanations for any problems. This judge’s ruling appears to have “flunked” all of those tests. The idea that a detained unrepresented individual’s omission of an event from the asylum application is a cogent basis for finding him not credible is facially absurd. That’s particularly true where the respondent is not a native English speaker and is held in detention where his ability to prepare, or, indeed, to even understand what is required for a successful asylum application, is intentionally impaired.
Moreover, a simple reference to the most current State Department Country Report (quoted above) would have shown the judge that the respondent’s testimony was highly plausible in light of known country conditions. Indeed, persecution, torture, and abuse are daily occurrences in the DRC.
Additionally, the judge violated due process by requiring a detained individual to get translations of key corroborating documents. It’s simply not possible in most cases. How is a detained unrepresented individual going to find a qualified foreign language translator in the Stewart prison? A judge doing his job fairly would have asked the respondent to summarize the documents and accepted a “proffer;” or he could have had the documents read into the record by the interpreter.
For the purpose of a detained adjudication, I would have assumed that the documents were what the respondent said they were and acted accordingly. If the DHS wanted to challenge the decision, they could have the documents translated. Just one of many problems in purporting to conduct “due process hearings:” in place where due process often can’t really be achieved.
Then, the “rubber stamp” BIA (a/k/a the “Falls Church Adjudication Center”) also “tanked” by not applying its own precedents which should have resulted in a finding that the Immigration Judge’s specious reasoning was “clearly erroneous.”
I heard a number of asylum cases from the DRC during my time on the bench in Arlington. I doubt that I denied any except for individuals who were aggravated felons, engaged in persecution of others, or had provided material support to a terrorist organization. Even those who failed to establish asylum eligibility often had valid claims for protection under the Convention Against Torture, given the prevalence of government sponsored or endorsed torture in the DRC. Most DRC asylum cases in Arlington were well-represented, well-documented, and either largely unopposed or not appealed by ICE.
Even without a lawyer, it appears that Bakala’s testimony was credible under the circumstances and that he suffered harm that should have warranted a grant of asylum on account of political opinion based on known country conditions. At one time in Arlington, a case like this with representation probably could have been granted largely by stipulation, with brief testimony, on a “short docket.”
That’s how cases can “move” on the Immigration Court’s crowded dockets without compromising due process or fundamental fairness. Instead, this Administration encourages a biased “haste makes waste” approach, issues statements of strong prejudgment against asylum seekers and their attorneys, motivates judges to cut corners, and enables judges to look for “any reason” to deny asylum and crank out final orders of removal. It’s a “cavalcade of worst practices!”
While some judges courageously resist and insist on “doing the right thing,” others choose or feel compelled to “go along to get along” with the Administration’s unethical (and incompetent) administration of these so-called “courts.” Indeed, today’s Immigration Judges are not even properly trained on how to correctly adjudicate and grant asylum under the generous standards mandated by the law, the Supreme Court, and even the BIA’s (seldom followed) precedent supposedly implementing generous standards following the Supreme Court’s admonishment. It’s an exercise in extreme intellectual dishonesty.
Allowing serious, “life or death” cases to be tried in places like Stewart, notorious for being the home of unsympathetic judges and an inherently coercive atmosphere, intentionally located in and out-of-the-way place where it is hard for attorneys to participate, is a stain on America.
The DOJ has abandoned any semblance of running its “wholly owned courts” in a fair and constitutional manner. Congress, ultimately responsible for creating and countenancing this mess, has long abdicated its duty to establish an independent system that complies with Due Process.
Article III Judges also have been largely complicit in allowing this pathetic imitation of a “court” system to continue operating in a fundamentally unfair and unreasonable manner and spewing forth skewed, unjust, often unlawful, and sometimes deadly results. It’s a national disgrace!
Sadly, the individuals being abused by the Immigration Court system are some of the weakest and most vulnerable among us. That’s what allows such systematic injustice to operate “largely below the radar screen.” However, the individuals who are participating in and enabling such outrageous contempt for the rule of law and human dignity, and thereby violating their oaths of Federal office, will not escape the judgment of history.
Fixing this unfair and intentionally broken system is well within our power as a country. It could be done for much less than $5.7 billion. Put an end to the “New American Gulag” and the “theater of the absurd” masquerading as a “court” that operates within its bowels!
