⚖️🧑🏻‍⚖️🍅FOOD FIGHT ERUPTS IN 5TH CIRCUIT AS EN BANC MAJORITY DECIDES TO FOLLOW LAW EVEN WHERE IMMIGRANT WINS! — 3 Trump Appointees, 1 Bush II Appointee, Join All Dem Appointees To Thwart 8 GOP Scofflaws’ Efforts To Overturn Rodriguez v. Garland!😎 

Food Fight
Far right activist  5th Circuit Judges reacting to colleagues who followed law and ruled in favor of immigrants. PHOTO: Creative Commons.

The issue is whether an in absentia removal order can be based on a statutorily defective notice. The panel followed the Supreme’s decision in Niz-Chavez and rejected the BIA’s conflicting decision in Matter of Laparra. In other words, the panel required the Government to follow the statute, a process known as “complying with the law.” This sent some of this most conservative circuit’s most far-right judges over the edge. Here’s the en banc decision:

https://www.ca5.uscourts.gov/opinions/pub/20/20-60008-CV1.pdf

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  • Credit Dan Kowalski over at LexisNexis for the “food fight” characterization.
  • The scofflaw GOP dissenters cited “deference” to the Executive, something they have pointedly refused to apply to Biden Administration precedents and policies favoring migrants. 
  • The majority says: “[The BIA] flies in the face of the Supreme Court’s Pereira decision, which Laparra ignored.” 
  • Incredibly, Garland is on the “wrong side” of this controversy, defending the legally incorrect misinterpretation of his “Trump holdover” BIA!
  • The statutory requirement at issue: That a “Notice to Appear” before the Immigration Court inform the individual of the time and place of the hearing. How difficult does that sound? Not very, unless you are bumbling bureaucrat at DHS and EOIR who chose, even after the Supremes’ initial decision, to  violate that decision and the statute in almost 100% of the cases instituted before the Immigration Courts! 
  • Kudos to the 3 Trump appointees and one Bush II appointee who joined 3 Obama appointees and 2 Clinton appointees to uphold the rule of law and thwart their GOP scofflaw colleagues.
  • Interestingly, and perhaps mildly encouraging, the “Trump appointees” split 3-3 on this one.
  • Apparently nothing drives a wedge between conservative judges like the scary prospect of following the law when it gives immigrants a win!
  • Future ambitious academic study: How much of the current out of control backlog can be traced to the Government’s, and particularly the BIA’s, inept handling of straightforward notice requirements set forth in the statute?
  • There’s a reason why I keep referring to Garland’s out of control EOIR backlogs as “largely self-created,” albeit in fairness not exclusively by him. The Trump Administration, and to a lesser extent the Obama Administration, also “excelled” at “Aimless Docket Reshuffling” driven by “prioritizing” improper political goals over due process, fundamental fairness, quality, and practical scholarship in the Immigration Courts.

🇺🇸Due Process Forever!

PWS

04-21-22

INSIDE THE “NEW AMERICAN GULAG” — Jim Crow Lives In Stewart Co., Georgia — Perhaps He Never Left!

https://www.splcenter.org/attention-on-detention/healing-open-wounds-injustice-stewart-county-georgia

Mary Claire Kelly writes for the Southern Poverty Law Center:

On the stretch of highway careening south from Columbus to Lumpkin, patches of Georgia red clay lie like open sores on the road’s shoulder. The sun burns bright orange, through air that is hazy with pollen and smoke from controlled forest fires.

The land here was once valuable. It was coveted. Nearly 200 years ago, white men named this county Stewart, after a revolutionary war militia general. White men massacred the men, women and children of the Creek Confederacy over this land.

Wealthy white men forced black men, women and children to scrape this land and stuff it with cotton. They gouged this land. Farmers, laborers and enslaved Africans dug deep ditches, taking no steps to avoid soil erosion, and those ditches became pits. In one part of Lumpkin, flowing water carved out the enormous pinnacles that mark Providence Canyon State Park. Nicknamed Georgia’s “Little Grand Canyon,” it is a beautiful scar of a violent extractive history.

Today, Stewart is one of the poorest counties in the state of Georgia. Its economic and population peak was in the mid-1800s, when slavery still reigned. Now, nearly half the roads in this majority-black district are still unpaved. Lumpkin’s downtown area, the county seat, has one four-way stop and many boarded up businesses.

The city’s population more than doubles when you include the 2,000 people locked away at the county’s main employer, Stewart Detention Center. The immigration prison is made of concrete and steel, but is sustained by a diversity of barriers.

First, there are the barriers you see: The trees hide Stewart from the roads, the two layers of curly-cue barbed wire fences insulate the facility, the formidable red gates stand tall, and the freshly cut grass stretches like a moat around the building.

Then, there are the barriers you experience: You leave your phone and any other connection to the outside world in your car, wait at two red gates outside the building entrance for an unseen force to open them, endlessly wait for one of three designated rooms to open for visitation, remove your jacket and shoes to endure the TSA-style security process to enter, and then you wait in the empty visitation room for a man with sleepless, red eyes to appear behind the thick, protective, plastic partition.

Next, there are the barriers you hear: the screech of your chair whenever you shift positions, the distracting human resources video blaring in the hallway outside of the visitation room, the echoes reverberating in the small concrete space that prevent you and the immigrant who sits behind the plastic barrier from being able to hear each other, and the static crackling across the telephone line that you must use to listen to the man who is sitting only feet away.

Then, there are the barriers that comprise the very reason this man sits in front of you: the violent political divisions in his home country, the obstacles to making a living wage, the language barrier, the gap in education needed to navigate the labyrinth of immigration bureaucracy.

And, last but not least, there is the barrier that is the entire reason for this place and this situation: the American border.

The logo of CoreCivic Inc. – the private, for-profit prison company that the government pays to run this facility – is a deformed American flag that is missing its stars, leaving only stripes that resemble the bars of a cage.

Through the entrance to the courtroom, President Donald Trump smiles in the lobby from his portrait above the list of that day’s hearings. In those hearings, detainees who have come from all over the world will sit on hard, wooden pews facing the U.S. Department of Justice seal.

Here, an attorney for the government will argue why each of these men and trans women should stay at this immigrant prison, or be sent back to the country they fled. In many cases, these immigrants might not have an attorney to represent them, because they do not have the constitutional right to counsel. Sometimes, family and friends can sit in on the hearing to show support for their loved one’s case.

Here, an immigration judge in black robes will methodically determine whether each of these people will remain caged at Stewart, be returned to the country they escaped, or be allowed to leave the prison. The verdict is delivered either by the judge with an authoritative tone, or the courtroom interpreter with a clinical lilt. If a person is allowed to leave, they will most likely have to continue waiting in this immigrant prison until someone on the outside can pay their bond, which is typically thousands of dollars. If they do leave, it will likely be late in the evening – too late to find transportation out of Stewart County.

The men and trans women who churn through Stewart’s machinery are called by their A-number, not their name. They are reduced to numbers. CoreCivic receives approximately $62 of taxpayer money for each body that fills a bed in its institution each day, according to Shadow Prisons, an SPLC report about the immigration system that is rife with civil rights violations, poor conditions, and little commitment to the safety of detainees. CoreCivic pays the people who are detained here as little as $1 a day for their “voluntary” labor.

To gain their freedom, these detained individuals must prove, through financial statements, that they will not be an economic burden on the government.

This is the knot of racist bureaucracy that staff of the Southeast Immigrant Freedom Initiative (SIFI)a project of the SPLC that provides pro bono legal counsel to those facing deportation proceedings in the Southeast – patiently work each day to untangle. The U.S. immigration system presses every parent, child, sibling and caregiver it entraps into an anonymous mold — a serial number in scrubs — that can be delivered to immigration prisons in a fleet of white vans.

SIFI staff see past the mold. They look into the eyes of each person they represent. They recognize the details that belong to that individual, and that individual alone: their family on the outside working for their release, the aches and pains that prevent them from sleeping, the professional skills they worked for years to achieve.

For many detained individuals, their bureaucratic purgatory in Stewart has been the end of an Odyssean journey to escape torture, the murders of loved ones, and threats on their lives. Every one of these tragic epics is woven with contagious trauma.

Yet, the men and women of SIFI are strong – even when the battles seem uphill every day. They model for volunteers how to confidently perform quality legal work, while treating each client with respect and compassion.

The small community of immigrants’ rights activists in Lumpkin, which also includes local immigration attorneys and the hospitality ministry El Refugio, often supports one another. They celebrate victories — the release of a client, the grant of a low bond amount — and quietly mourn defeats.

Stewart Detention Center is a painful symptom of violent injustice. It festers in a South Georgia landscape that bears deep, historic wounds.

Here, the men and women of SIFI are trying to heal the system.

Mary Claire Kelly is a Harvard Law School student and a former digital media associate at the SPLC.

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Grotesque abuses of Constitutional Due Process, fundamental fairness, and human decency, not to mention errors of law, go on daily in the “NAG” aided and abetted by its EOIR enablers. What kind of “court” operates in such a one-sided and coercive atmosphere. Why don‘t those in charge insist on neutral hearing sites rather than those controlled by one of the parties in interest?

Bill Barr just went to great pains to insure that even those who pass “credible fear” and who can prove financial responsibility won’t in the future be released from detention (unless, of course, ICE runs out of detention space, which is already happening).

In fact, they won’t even get a chance to make the case for relief to an Immigration Judge. That’s the kind of mindless “Jim Crow” use of the law to promote cruelty and unfairness that corporate “stuffed shirts” like Barr, more concerned with covering for his corrupt boss than upholding the Constitution, can mete out from his protected perch at the DOJ. But, perhaps the folks at SIFI will be able to stuff Barr’s disregard for the Fifth Amendment back in his face in the “real” Federal Courts.

In any event, history won’t forget the Barrs of the world, any more than they have forgotten the Wallaces and others who were on its “wrong side.”

If nothing else, the performance of Bill Barr over the last several days shows why a true “court system” can’t possibly run under his auspices.

PWS

04-19-19