"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.
President Joe Biden has taken some steps toward reversing his predecessor’s legacy of broad, indiscriminate immigration enforcement, including a recent announcement that it will no longer detain immigrants at two locations under scrutiny for alleged abuses.
But Republicans are adamant that increased immigration enforcement be a prerequisite to any broader immigration reform.
“There’ll be no immigration reform until you get control of the border,” Sen. Lindsey Graham (R-SC) told Roll Call last month.
There are now nearly 40 percent more people in immigration detention compared to when Biden first took office, and his administration is continuing to turn away most migrants arriving on the border under pandemic-related restrictions put in place by his predecessor, President Donald Trump, which have led to the expulsions of more than 350,000 people this year alone.
But research shows that the threat of detention and deportation in the US doesn’t dissuade migrants from making the journey to the southern border, especially if they are victims of violence and may be seeking to escape the “devil they know” in their home countries.
“Managing migration at the border, particularly the kind of migration we’re seeing now, from a strictly deterrence, enforcement lens is just not sustainable in the long run and is not having the impact that people think it should have,” Theresa Cardinal Brown, managing director of immigration and cross-border policy at the Bipartisan Policy Center, said. “That’s why we need to rethink our paradigm for how we talk about migration and everything that we do at the border.”
. . . .
Knowledge of US immigration detention, however, did have an unintended effect on survey takers in Ryo’s experiment — it made them more likely to think outcomes and legal procedures in the American immigration system are unfair. That is worrisome, given that perceptions of fairness are significant predictors of people’s willingness to obey the law and cooperate with legal authorities, Ryo said.
“We really ought to be concerned about the extent to which generating these kinds of perceptions of unfairness can backfire in terms of more people disregarding our laws and undertaking that dangerous journey in order to get to our border and try to cross it,” she added.
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First, let me congratulate Nicole on her spectacularly high level reporting and mastery of the English language: Clear, accessible, well-organized, informative, persuasive.Compare Nicole’s prose with the vapid, often misleading nonsense and gibberish spouted by legislators, government officials, bureaucrats, and right wing White Nationalist shills of all types. Just yesterday, Trump and his pathetic “wannabe” Greg Abbott were down at the border spouting their unadulterated, fact-free, racist blather and restrictionist nonsense (when Trump wasn’t rambling on incoherently about the “Big Lie” or himself). I encourage everyone to read Nicole’s full article at the link!
“Enforcement only doesn’t work” has been one of the key “themes” of Courtside since “Day 1.” The answer has also been clear — due process, fundamental fairness, racial equity, practical scholarship leading to durable solutions.
The converse of “enforcement only doesn’t work” is also true: A more realistic, more generous legal immigration system that advances due process and equality while taking advantage of “market factors” that attract and drive migration would also lead to more efficient and effective enforcement. Many, perhaps the majority, of those we are now wasting time and money on cruel and ultimately futile attempts to detain, deter, and remove would actually be a huge benefit to our nation if they were allowed to migrate legally on either a permanent or temporary basis.
I’ve been saying for a long time now that convincing folks that our legal system is basically bogus — falsely promising a fairness and dignified treatment we aren’t delivering — merely serves to drive migrants to enter the “extralegal” or “black market” system that helps support our economy. The real “beneficiaries” of “mindless immigration enforcement” and a dysfunctional legal system are smugglers, cartels, and exploitative employers. Also, obviously, corrupt GOP politicos benefit from having a permanent, disenfranchised, traumatized, largely non-White “black market labor pool” to prop up their economy while serving as an easy target to “whip up” their racist base.
Bad policies, driven by ignorance, myths, bias, cowardice, and racism will continue to produce lousy results — for the migrants and for our nation. Smarter, more courageous, more intellectually honest legislators and public officials are necessary. Whether voters will be wise enough to elect them remains to be seen.
“The NTA sent to Villegas de Mendez does not contain the information required to trigger the stop-time rule. See id. at 1478-79, 1485; see also § 1229(a)(1)(A)-(G). Neither does the subsequent notice of hearing sent to her. Thus, she did not receive the “single compliant document” required by statute. Niz-Chavez, 141 S. Ct. at 1485. The BIA consequently abused its discretion by committing an error of law. See Koon v. United States, 518 U.S. 81, 100 (1996); Ramos-Portillo v. Barr, 919 F.3d 955, 958 (5th Cir. 2019); Milat v. Holder, 755 F.3d 354, 365 (5th Cir. 2014). Therefore, the petition for review is GRANTED and the case is REMANDED to the BIA for further consideration in light of Niz-Chavez, 141 S. Ct. 1474, and consistent with this judgment.”
One major problem with constantly going with DHS interpretations is that many are both legally wrong and practical disasters. After the initial Pereira v. Sessions debacle the BIA had a chance to solve the problem. Instead, undoubtedly spurred on by the “deny everything culture” promoted by the Trump regime’s White Nationalist agenda, the BIA chose the worst possible legal interpretation with disruptive practical implications. Any real immigration expert could have seen this coming!
When was the last time in a potential “Chevron-type” situation that the BIA or the AG adopted the migrant’s proffered interpretation rather than DHS’s? Yet even with all the (in my view highly inappropriate) advantages conferred on the Government by the Supremes’ intellectual indolence in Chevron and its absurdist companion “Brand X,” Article III Courts, including the Supremes, reject BIA/AG interpretations on a regular basis. Pereira and Niz-Chavez are just two of the most prominent recent examples.
Moreover, because neither the AGs nor the BIA are respected experts in immigration and human rights, and, shockingly, none have significant experience representing individuals in Immigration Court, the mis-interpretations that they choose are often impractical and unworkable. This, in turn leads to confusion, unnecessary remands, and unmanageable backlogs, not to mention patent injustice and deadly results for the mere humanscaught up in this ongoing disaster! This is what “Dred Scottifcation” is all about!
The case highlighted above should have been reopened in 2017. In a “real” court system, with qualified judges, professional administration, and no political interference, it could have been completed by now. Instead, it’s no closer to completion than it was four years ago!
But, lots of time and resources have been wasted in defending the BIA’s wrong attempt to deny reopening! This nonsense by the Government, NOT dilatory tactics by migrants and their attorneys trying to navigate this intentionally user-unfriendly and often illegal and illogical system, is what “builds backlog!”
Indeed, a wiser system would have turned preliminary adjudication of these cases over to USCIS so that only those that could not be granted and were not appropriate for prosecutorial discretion (“PD”) would have been sent to Immigration Court. Virtually none of the “non-LPR cancellation” cases are legitimate enforcement priorities. A similar approach was used with the NACARA program under better overall management.
Instead, as a result of poor BIA decision-making and even worse “leadership” at the Trump DOJ, this case is no closer to a final resolution than it was in 2017. And, DHS and EOIR still haven’t systemically corrected the completely fixable practical problems that generated Pereira and Niz-Chavez in the first place. Nor have Garland and Mayorkas announced systemic plans for removing the unnecessary “cancellation backlog” from Immigration Court dockets even though they would be “low priorities” for ICE under the criteria announced by OPLA’s John Trasvina!
That’s why we have unmanageable backlogs! And they will continue until Garland cleans house at EOIR, brings in a diverse group of qualified expert judges, and empowers them to act independently, stand up to the frequent nonsense pushed by DHS, and “laser focus” on due process for individuals and instituting and enforcing best practices!
One of the most obvious of those “best practices,” totally missing from Garland’s mismanaged Immigration Courts to date, would be returning “docket control” to local Immigration Courts and ending the “Aimless Docket Reshuffling” by EOIR Headquarters and DOJ politicos that has helped generate the out of control backlog.
Many cancellation of removal cases could and should be “administratively closed.” But, inexplicably, Garland has yet to revoke Sessions’s ridiculously wrong Matter of Castro-Tum, and restore to Immigration Judges their power to administratively close cases. That’s notwithstanding that Castro-Tum has been rejected in whole or in part by every Circuit Court of Appeals to consider it.
How long is Garland going to continue to “sponsor” inferior, non-independent, pro-DHS “judging” and amateurish, politicized mismanagement that is destroying our entire legal system?
This appears to be Judge Garland’s vision of “justice” for migrants and people of color @ Bailey’s Crossroads. Isn’t it time to put the past behind us and move forward with housecleaning and reforms at EOIR? Ask Judge Garland “What are you thinking, man?” Is this YOUR vision of due process and expert “judging?” — Public Realm
Thamotar v. U.S. Att’y Gen., 11th Cir., 06-17-21, Published
PANEL: WILSON, JILL PRYOR and LAGOA, Circuit Judges.
OPINION: JILL PRYOR, Circuit Judge
KEY QUOTE:
Visavakumar Thamotar, a Sri Lankan citizen of Tamil ethnicity, seeks review of the Board of Immigration Appeals’ (“BIA”) order affirming an Immigration Judge’s discretionary denial of his application for asylum and grant of withholding of removal. Mr. Thamotar argues that because removal was withheld, federal regulation 8 C.F.R. § 1208.16(e)1 required reconsideration of his asylum claim, which the Immigration Judge and BIA failed to give. We agree with Mr. Thamotar that the agency failed to conduct the proper reconsideration. When an asylum applicant is denied asylum but granted withholding of removal, 8 C.F.R.
§ 1208.16(e) requires reconsideration anew of the discretionary denial of asylum, including addressing reasonable alternatives available to the petitioner for family reunification.2 And where the Immigration Judge has failed to do so, the BIA must remand for the Immigration Judge to conduct the required reconsideration.
Here, the Immigration Judge failed to reconsider Mr. Thamotar’s asylum claim under § 1208.16(e). The BIA’s failure to remand on this issue was therefore
1 Mr. Thamotar refers to both 8 C.F.R. §§ 208.16(e) and 1208.16(e) in his briefing. The two provisions are identical in substance, but § 1208.16(e) specifically applies to the BIA (and Immigration Judges) because of the enactment of the Homeland Security Act of 2002, Pub. L. No. 107-296, tit. IV, subtits. D, E, F, 116 Stat. 2135, 2192 (Nov. 25, 2002) (as amended), and the promulgation of final rule 68 Fed. Reg. 9823, effective February 28, 2003. 68 Fed. Reg. 9823, 9824–25, 9834 (Feb. 28, 2003); see Huang v. INS, 436 F.3d 89, 90 n.1 (2d Cir. 2006) (discussing this legislative history). For consistency, we will refer only to 8 C.F.R. § 1208.16(e).
2 Because we vacate the BIA’s order on this ground, we do not address Mr. Thamotar’s additional challenges to the order, which included that the BIA erred by affirming the Immigration Judge’s adverse credibility determination, which he contends was not supported by substantial evidence, and relying on his method of entry into the United States when affirming the Immigration Judge’s decision.
2
USCA11 Case: 19-12019 Date Filed: 06/17/2021 Page: 3 of 32
manifestly contrary to law and an abuse of discretion. It is clear that neither the Immigration Judge nor the BIA conducted the proper reconsideration because the record contained no information about Mr. Thamotar’s ability to reunite with his family, information that the agency must review under § 1208.16(e). Thus, the BIA should have remanded the case for further factfinding. We grant the petition, vacate the BIA’s order, and remand to the BIA with instructions to remand to the Immigration Judge for reconsideration of the discretionary denial of asylum.
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Lots of work for a bogus asylum denial by EOIR! And the utter nonsense isn’t over! Just a “remand” to give EOIR yet another chance to deny for specious reasons (as they have already done twice). Thisidiocy will continue until Judge Garland replaces the BIA with real judges who will properly, fairly, and timely apply the law and regulations!
The poor analysis of the IJ, mindlessly affirmed by the BIA, failed to come anywhere close to the “most egregious adverse factors” requirement of the BIA’s own precedent in Matter of Kasinga, 21 I&N Dec. 357, 367 (BIA 1996):
A grant of asylum to an eligible applicant is discretionary. The final issue is whether the applicant merits a favorable exercise of discretion. The danger of persecution will outweigh all but the most egregious adverse factors. Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987).
Get this, folks! The IJ and the BIA both found that meeting the higher standard for withholding of deportation based on probability of persecution somehow was an “adverse factor” that outweighed family separation! That’s right, an “adverse factor!”
I can’t imagine how this gang of so-called “judges, got through law school and admitted to the bar! Maybe “imposters” took their exams for them! THIS is the best American justice has to offer? If not, why are they making life or death decisions and imposing potential permanent family separation on refugees?
Notwithstanding the assembly line climate and lackadaisical approach to law in Garland’s Immigration “Courts,” these are NOT TRAFFIC COURTS! They are more like “death penalty courts” or “courts of last resort” and those humans appearing before them and their representatives deserve better.
Judge Garland and his team should hypothesize that this type of inferior justice were being meted out in life or death cases to THEIR FAMILY MEMBERS AND LOVED ONES — actual human beings, NOT “just migrants” who, according to Garland’s EOIR, appear to exist in a twilight zone beneath the rest of humanity. That’s what the ongoing “Dred Scottification of the other” still being permitted andpromoted by Garland at DOJ is all about!
A fitting celebration of the first Federal Juneteenth Holiday would have been to remove the entire BIA so that they can no longer inflict “Dred Scottification” on migrants of color, their families, their friends, and their communities, among others! Symbolism is only effective if followed by action. And, so far, Garland’s actions on wiping out the “vestiges of Dred Scott at Justice” have fallen woefully short!
This raises serious, unaddressed questions of why such weakly qualified individuals are on the bench in the first place when there are many immigration experts out there who can and would do better. Much better!And it wouldn’t take them years and multiple hearings, appeals, and trips to the Circuit to grant asylum.
This isn’t a “deep” case except that it represents the “deep dodo” 💩 at EOIR, the stench of which is fouling our entire justice system and shaking the foundations of our democracy! This case is about following the Code of Federal Regulations, properly applying precedent, and fairly treating asylum seekers. It’s “Law 101” — things L-1s would have to know to get to L-2! I can’t begin to think what the paper would look like like if one of my students gave me this kind of garbage on a final exam. Fortunately, to date, nobody ever has!
Those who want a more complete run down of the ongoing “Atlanta disgrace” — a cancer on our justice system — should just go to the “Atlanta Immigration Court” tab on immigrationcourtside.com. There is more than enough compiled to have triggered an investigation, removals from office, and corrective action in a functioning Government! And my collection is just “the tip of the iceberg” on what has been written about the disgraceful, systemic denial of fairness, impartiality, and justice in Atlanta!
And, why was OIL defending this ridiculous mess in the first place? It’s a “comedy” of errors, questionable ethics, and amateurish legal work that the DOJ should be ashamed of and which Garland should end — NOW! No wonder this ridiculous national embarrassment has created an unnecessary 1.3 million case backlog that continues to grow under Garland!
Don’t let Garland or anyone else in the Administration tell you that this self-created backlog justifies a truncation of due process or more “bogus attempts to expedite” asylum cases. NO! What it requires is for Garland to bring in real judges and experts from the private/NGO sector to fix the Immigration Courts so they comply with due process and fundamental fairness!
Judge Garland, “come on man!” These deadly robed clowns and their “defenders” represent YOU — “the top legal officer in our Executive Branch!” YOU have a responsibility to the American people (NOT just the failed DOJ or the President) to “get out the big hook” and “yank” these anti-due process, anti-immigrant, anti-asylum, anti-racial-justice clowns 🤡 off YOUR bench and replace them with competence and fairness. A little (now missing) diversity wouldn’t hurt either! It’s called fulfilling the promises made by Biden and Harris during the election!
It’s not going to improve until Garland replaces the BIA with qualified judges, hires only Immigration Judges who know how to fairly adjudicate asylum cases, (with outstanding public reputations for fairness, scholarship, timeliness, teamwork, and respect), and AAG Vanita Gupta brings in better leadership at OIL to put an end to this tragic, totally unnecessary, disgracefully wasteful abuse of our Federal Judicial system and the resulting human carnage!
NDPA warriors, don’t be fooled or lured into complacency by this week’s long overdue positive developments in A-B- and L-E-A- — things that experts said should have been done by Judge Garland on “Day 1.” Keep showing your total dis-satisfaction and disgust with the glacial pace of reform at DOJ and the myriad of highly unqualified “judges” still being allowed to continue to inflict racial injustice and “worst imaginable practices” on vulnerable individuals (and their lawyers) who are entitled to due process and justice — not a continuing deadly ☠️ clown 🤡 show! Keep letting Garland, Monaco, Gupta, Clarke, Biden, Harris, Congress, the Article IIIs, and the American people know that “The EOIR Clown Show Has Got To Go!” NOW! There will be neither racial justice nor equal justice for all in America (wake up, Vanita Gupta and Kristen Clarke) while Garland operates his “star chamber courts” at EOIR!
Hi, Judge Garland! This is how “justice” is administered in the 11th Circuit Immigration Cours and at the Bailey’s Crossroads’ Tower. Glad you like it! I guess the screams of the innocent can’t be heard across the river! Not even sure why you would need a law school degree to be “judges” in your EOIR star chambers. It’s really just about dehumanization, degradation, and “productivity!” — Public realm
🇺🇸Due Process Forever! Garland’s “Asylum Free Zones,” Never!
The U.S. government on Wednesday ended two Trump administration policies that made it harder for immigrants fleeing violence to qualify for asylum, especially Central Americans.
Atty. Gen. Merrick Garland issued a new policy saying immigration judges should cease following the Trump-era rules that made it tough for immigrants who faced domestic or gang violence to win asylum in the United States. The move could make it easier for them to win their cases for humanitarian protection and was widely celebrated by immigrant advocates.
“The significance of this cannot be overstated,” said Kate Melloy Goettel, legal director of litigation at the American Immigration Council. “This was one of the worst anti-asylum decisions under the Trump era, and this is a really important first step in undoing that.”
Garland said he was making the changes after President Biden ordered his office and the Department of Homeland Security to draft rules addressing complex issues in immigration law about groups of people who should qualify for asylum.
Gene Hamilton, a key architect of many of then-President Trump’s immigration policies who served in the Justice Department, said in a statement that he believed the change would lead to more immigrants filing asylum claims based on crime and that it should not be a reason for the humanitarian protection.
. . . .
In the current fiscal year, people from countries such as Russia and Cameroon have seen higher asylum grant rates in the immigration courts than those from El Salvador, Guatemala and Honduras, the data show.
One of the Trump administration policies was aimed at migrants who were fleeing violence from nonstate actors, such as gangs, while the other affected those who felt they were being targeted in their countries because of their family ties, said Jason Dzubow, an immigration attorney in Washington who focuses on asylum.
Dzubow said he recently represented a Salvadoran family in which the husband was killed and gang members started coming after his children. While Dzubow argued they were in danger because of their family ties, he said the immigration judge rejected the case, citing the Trump-era decision among the reasons.
Dzubow welcomed the change but said he doesn’t expect to suddenly see large numbers of Central Americans winning their asylum cases, which remain difficult under U.S. law.
“I don’t expect it is going to open the floodgates, and all of a sudden everyone from Central America can win their cases. Those cases are very burdensome and difficult,” he said. “We need to make a decision: Do we want to protect these people?”
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Read the full article at the link.
You know for sure you’re doing the right thing when anti-asylum shill and Stephen Miller crony Gene Hamilton criticizes it!
I tend to agree with my friend Jason that under present conditions, asylum cases for women refugees from Central America are likely to continue to be a “tough slog” at EOIR. The intentionally-created anti-asylum, misogynist, anti-Latino, anti-scholarship, anti-quality, anti-due-process culture at EOIR that emerged under Sessions and Barr isn’t going to disappear overnight, particularly the way Judge Garland is approaching it. He needs to “get out the broom,🧹 sweep out the current BIA and the bad, anti-asylum judges, get rid of ineffective administration, and bring in human rights and due process professionals to get this system operating again!
Jason, for one, would be an outstanding judicial choice for building a functioning, fair, efficient Immigration Court; one that would fulfill the long-abandoned vision of “through teamwork and innovation, being the world’s best tribunals guaranteeing fairness and due process for all.” Under the Trump regime, EOIR was the antithesis of that noble vision!
Cases such as that described by Jason (incorrectly decided by the Immigration Judge) utilizing A-R-C-G- and “family friendly” precedents from the Fourth Circuit were usually well-represented and well-prepared by attorneys like Jason, Clinics, and NGOs like CLINIC, CAIR Coalition, Human Rights First, and Law School Clinics. After review by ICE Counsel, many were candidates for my “short docket” in Arlington where asylum could easily be granted based on the documentation and short confirming testimony.
To their credit, even before the BIA finally issued A-R-C-G-, the Arlington Chief Counsel’s Office was not opposing well-documented asylum grants based on domestic violence under what was known as the “Martin Brief” after former DHS/INS Senior Official, renowned immigration scholar, and internationally recognized asylum expert, now emeritus Professor David A. Martin of UVA Law. I remember telling David after one such case that his brief was still “saving lives” even after his departure from DHS and return to academia.
Professor (Emeritus) David A. Martin UVA Law PHOTO: UVA Law
Rather than building on that real potential for efficiency, cooperation, quality, and due process, under Sessions those things that were working at EOIR and represented hope and potential for future progress were maliciously and idiotically dismantled. From the outside, throughout the country, I saw DV cases that once would have been “easy short docket grants” in Arlington require lengthy hearings and often be incorrectly decided in Immigration Court and the BIA. Sometimes the Circuits corrected the errors, sometimes not.
At best, what had been a growing census around recognizing asylum claims based on DV became a “crap shoot” with the result almost totally dependent on what judges were assigned, what Circuit the hearing was held in, and even the composition of the Circuit panel! And, of course, unrepresented claimants were DOA regardless of the merits of their cases. What a way to run a system where torture or death could be the result of a wrong decision!
But, it doesn’t have to be that away! Experts like Jason and others could get this system functioning fairly and efficiently in less time than it took Sessions and Barr to destroy it.
However, it can’t be done with the personnel now at DOJ and EOIR Headquarters. If Judge Garland wants this to function like a real court system (not always clear to me that he does), he needs to recruit and bring in the outside progressive experts absolutely necessary to make it happen. At long last, it’s time for “Amateur Night at the Bijou” to end its long, disgraceful, debilitating “run” @ EOIR!
Time for this long-running show at DOJ/EOIR to end! PHOTO: Thomas Hawk Creative Commons Amateur Night
“Floaters — How The World’s Richest Country Responds To Asylum Seekers”. — “The reality of racial justice and the rule of law for people of color at our Southern Border is rather sobering, as the Biden Administration fails to usher in needed progressive reforms. How many more people will die because this Administration won’t follow the Constitution, The Refugee Act, and our international obligations? We’ll never achieve racial justice so long as dehumanization of people of color is our official policy, carried out by a broken and dysfunctional DOJ!” 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)Vice President Kamala D. Harris Vice President of the United States — “Will she be able to get beyond the mistakes of the past and put rationality, humanity, and the rule of law in place at the Southern Border. So far, the results of her leadership are NOT encouraging for those who believe in progressive, humanitarian, legal policies.” (Official Senate Photo)
James Fredrick is a multimedia journalist based in Mexico City and covers migration, crime, politics and sports.
. . . .
Obama tried deterring migrants with his characteristic lawyerly tact. Trump did it with his cruel, petty impulsiveness. Biden is doing it with his folksy toughness. The styles are different, but the results of immigration deterrence will always be the same.
We’re trapped in this cycle because the U.S. government refuses to listen to migrants. Having met hundreds of migrants during my years reporting in Mexico and Central America, it’s obvious why deterrence doesn’t work: What’s at home is worse than anything the United States could threaten. Most migrants don’t want to leave home. But they do because violent death or crippling destitution is all that’s left.
Failing to actually come up with a solution, we of the “greatest country on Earth” become tremendously feeble and defensive at the arrival of a few thousand immigrant children. But there is another way.
We must treat immigration as a civil and humanitarian issue, not a criminal one. Criminalizing people fleeing violence, persecution, climate change or economic hardship exacerbates these problems. So decriminalize border crossings and rebuild border facilities as welcome centers, not jails. Border Patrol and Customs and Border Protection agents at the border should be social workers, not cops.
If Trump’s family separation atrocity showed us anything, it’s that millions of Americans want to help immigrants in need. The United States should cooperate more with these groups. There are already large networks around the country that can provide housing, food, legal services, education and medical services to immigrants. Why rely on expensive armed border agents instead of willing, motivated humanitarian groups?
Immigration laws should also address the challenges of the 21st century. In addition to decriminalizing border crossings, our immigration laws rely on outdated quotas and corrupt, abusive worker programs. Asylum law is a relic of the Cold War and doesn’t reflect the world today.
Finally, Washington should stop making the problems worse with bad foreign policy. Despite numerous abuses, scandals and criminal allegations involving Honduran President Juan Orlando Hernández, the Biden administration refuses to denounce him, though many think he is responsible for the conditions Hondurans are fleeing. In fact, Biden administration officials are working with Hernández to try to prevent Hondurans from fleeing. He’s just one example in a long history of U.S. meddling to prop up corrupt, abusive, U.S.-friendly regimes. No amount of U.S. dollars in aid can make up for bad foreign policy.
President Biden can’t stop the crisis today. After all, he helped create it. But he can make sure this is the last “border crisis” we face.
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Read the complete op-ed at the link.
Ah, “mindlessly” — one of my favorite terms, usually applied these days to Garland and his inept team at DOJ! Actually, Frederick isn’t the only one to figure this out!
The problem remains, as I have stated over and over, the toxic failure of the Biden Administration to bring progressive experts in immigration, human rights, civil rights, and “applied due process” into Government and empower them to solve the problems! It’s bizarrely compounded by the disgraceful unwillingnessof those few in the Biden Administration, like Vanita Gupta and Kristen Clarke, who actually know better, to speak up for racial justice, social justice, human rights, and human dignity at the DOJ!
Unless VP Harris wakes up, convinces her boss, and brings in the progressive experts, she’s headed for the abyss, taking thousands of vulnerable refugees and, perhaps, American democracy down with her!
Refusal to listen: to migrants, their representatives, experts, our “better angels,” and common sense! The same problems, over and over, Administration after Administration, decade after decade! The same “built to fail” policies repeated!
The truth is in front of the Biden Administration! But, like Garland, Mayorkas, and others leading the way over the cliff, Biden and Harris can’t see it! They appear to have “tuned out” those desperately trying to keep them from plunging over the precipice! So tragic, so unnecessary, so threatening to American democracy and the future of humanity!
“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color
Here’s yet another“big middle finger” 🖕 to progressives and experts from Garland and Mayorkas:
U.S. DEPARTMENT OF HOMELAND SECURITY
Office of Public Affairs
DHS and DOJ Announce Dedicated Docket Process for More Efficient Immigration Hearings
WASHINGTON – Today, Secretary of Homeland Security Alejandro N. Mayorkas and Attorney General Merrick B. Garland announced a new Dedicated Docket process to more expeditiously and fairly make decisions in immigration cases of families who arrive between ports of entry at the Southwest Border. This new process should significantly decrease the amount of time it takes for migrants to have their cases adjudicated while still providing fair hearings for families seeking asylum at the border.
“Families arriving at the border who are placed in immigration proceedings should have their cases decided in an orderly, efficient, and fair manner,” said Secretary of Homeland Security Alejandro N. Mayorkas. “Families who have recently arrived should not languish in a multi-year backlog; today’s announcement is an important step for both justice and border security.”
“The mission of the Department of Justice’s immigration courts is to decide the cases that come before them promptly and fairly,” said Attorney General Merrick B. Garland. “This new program for certain newly arriving families will help achieve that critically important goal.”
Under this new process, certain recently arrived families may be placed on the Dedicated Docket. Families may qualify if they are apprehended between ports of entry on or after Friday, May 28, 2021, placed in removal proceedings, and enrolled in Alternatives to Detention (ATD). DHS, in partnership with the Department of Justice (DOJ) Executive Office for Immigration Review (EOIR), will make available information services to help families understand the immigration system and refer families to pro bono legal service providers for possible representation.
EOIR has identified immigration courts in 10 cities with established communities of legal services providers and available judges to handle the cases. The designated cities are Denver, Detroit, El Paso, Los Angeles, Miami, Newark, New York City, San Diego, San Francisco, and Seattle.
Under the Dedicated Docket, EOIR’s immigration judges will work generally to issue a decision within 300 days of the initial master calendar hearing, subject to the unique circumstances of each case including allowing time for families to seek representation where needed. While the goal of this process is to decide cases expeditiously, fairness will not be compromised.
CGRS Concerned Biden Policies Will Undermine Fairness, Endanger Refugee Families
San Francisco, CA (May 28, 2021) – The Center for Gender & Refugee Studies (CGRS) is deeply concerned by today’s announcement that the Biden administration will begin fast-tracking asylum cases for certain families seeking refuge. By establishing a “dedicated docket” for asylum-seeking families, the administration will sacrifice fairness in the name of speed, adopting a misguided approach that under both the Obama and Trumpadministrations contributed to record backlogs in the immigration system, eroded due process, and endangered lives. Instead of reviving the failed policies of past administrations, the Biden administration should swiftly end cruel and illegal Trump-era policies and fully restore safe asylum processing at the southern border.
Today’s announcement arrives at a time when families seeking asylum face enormous roadblocks to safety and justice. Over four months into its first term, the Biden administration has failed to end myriad Trump-era policies that continue to place refugees at risk of grave violence, and even death. It is shameful that the administration is prioritizing fast-tracked adjudications while continuing to illegally expel asylum seekers to danger under the widelydebunked pretext of the pandemic. So long as the Title 42 policy remains in place, there can be no safe or fair process for asylum seekers.
The Biden administration also has yet to address Trump policies that have gutted protections for people escaping domestic violence and gang brutality, including many of the families impacted by this new policy. Until Attorney General Garlandtakes action to reverse these policies, the asylum system will remain rigged against families fleeing violence in their homes and communities, who will be wrongly denied protection and ordered deported to the very dangers they’ve fled. Rushing adjudications will make it even more difficult for these families to find safety, further undermining any semblance of fairness in the asylum process.
“CGRS and our partners have set forth a clearroadmap for the Biden administration to adjudicate asylum cases in a timely manner and mitigate backlogs, all while improving fairness and protecting due process,” CGRS Legal Director Blaine Bookey said today. “As advocates, we’ve been down this road before. We know policies that rush asylum adjudications fail to keep families and children safe. We implore the administration not to make the mistake of putting speed above justice.”’
Advocates, asylum seekers, and communities are coming together to demand an asylum system that provides every person a safe and fair opportunity to seek protection, with full access to legal representation and community-based support. The Biden administration should put humanity first, reject the cruel policies of the past, and welcome people seeking asylum with dignity.
Brianna Krong | Communications and Advocacy Coordinator
“She struggled madly in the torturing Ray” — At DOJ, Garland, Lisa Monaco, Vanita Gupta, and Kristen Clarke appear to regard refugee women applying for asylum at the Southern Border as “less than human.” Human dignity is a bad joke in Garland’s “Star Chambers.” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Here are other initial comments from asylum experts:
I don’t think there was any consultation w/ private bar. NGOs are very upset. Biden administration just held a q and a about two hours ago to answer NGO questions but there’s a lot of unknowns remaining.
Lots of NGOs are off today because of the long weekend but many are working to respond to this and the President’s budget.
See NGO press release in response to President’s budget:
We Are Home Campaign Deeply Disappointed by Biden’s DHS Budget Request
Calls on Congress to Do Better
Washington, DC —President Biden’s FY 2022 budget, released today, requests $2.7 billion from Congress for ICE detention – almost the same amount enacted by Congress last year under the Trump Administration. It includes funds for 2,500 family detention beds. Alongside recent increases in the number of people jailed by ICE, this budget request is an alarming signal that DHS and the President are not heeding the call of the immigrant justice movement to reduce and ultimately end the federal government’s harmful and unnecessary reliance on incarceration for immigration processing.
In response to the news, Bridgette Gomez, Director of the We Are Home campaign, said:
“We are deeply disappointed to see that DHS plans to continue Trump-era levels of ICE detention. Candidate Biden promised an immigration policy that reflects our highest values as a nation. As president, Biden has repeatedly emphasized his commitment to racial equity. Any plan that doesn’t dramatically shrink ICE’s incarceration system – which mostly jails Black and Brown people – betrays those commitments. We’ll be looking to Congress to do better and cut ICE’s budget significantly.”
In March, We Are Home joined the Defund Hate coalition in calling on Congress to cut funding for ICE and CBP by at least 50 percent.
In February, the campaign sent comprehensive recommendations to DHS to overhaul enforcement and begin to dismantle the detention and deportation machinery that has devastated millions of families, mostly Black and Brown, and squandered billions of taxpayer dollars. These recommendations included policies to cut detention, including 1) a comprehensive file review of all people in ICE custody, with a presumption of release, and 2) an end to the use of private prisons and state and local jails for ICE detention. The urgency to reduce the detained population is even greater during the pandemic, since people in jails and prisons face particular risk of contracting COVID. ICE has no centralized plan to provide vaccines for people in its custody.”
We Are Home is a nationwide campaign to fight for immigrant communities on three fronts: prioritizing and demanding a pathway to citizenship for the 11 million undocumented immigrants in America; a moratorium and overhaul of interior enforcement; and broad affirmative relief from deportation. We Are Home is co-chaired by Community Change/Community Change Action; National Domestic Workers Alliance (NDWA)/Care in Action; Service Employees International Union (SEIU); United Farm Workers/UFW Foundation; and United We Dream.
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The NGOs are quite upset.Note that this comes days after the Fourth Circuit enforced an IJ’s duty to fully develop the record even in represented cases.And yet here is the administration speeding up the assembly line.
In my view, this will lead to more pro se I-589s being filed.And as Sessions vacated Matter of E-F-H-L-, there is now no safeguard in either case law or regs preventing IJs from summarily denying those I-589s for e.g. failing to correctly delineate a PSG.
I can’t for the life of me understand this administration’s determination topreserveTrump’s policies.
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Quick takes:
Because the system would depend almost entirely on NGOs and pro bono groups to provide counsel, developing policies without consulting those groups or providing grants to increase representation is totally inappropriate, not to mention stupid and insulting;
Special expedited asylum dockets have failed in the last two Administrations, so why try a “proven failure” once again?
Assigning certain Immigration Judges to these “priority dockets” –without first removing non-priority cases from the docket, will result in more “Aimless Docket Reshuffling” and increased backlogs;
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings LawProfessor Stephen H. Legomsky Emeritus Professor of Law. & Former USG Senior Executive Washington U. Law PHOTO: Washington U. Law website
The 10 Immigration Courts selected for this project have widely varying asylum denial rates. For example, for the period 2015-20, according to TRAC, El Paso (an “Asylum Free Zone”) had a denial rate of 90% and New York a denial rate of 32%. How can a system including such extremes be “fair?”
In just a short time, Garland’s outrageous mishandling of the Immigration Courts, and his disdain for expert progressive advice and appointments, shows exactly why Congress must remove these “courts” from the incompetent and biased administration of the DOJ and create an independent U.S. Immigration Court;
Until that happens, progressives and advocates will have to deal with Garland’s “in your face arrogance and ignorance” the same way they dealt with Sessions and Barr — with massive resistance and unending litigation until Garland’s corrupt, incompetent, biased system grinds to a halt.
Turning potential powerful and helpful friends into motivated and committed enemies! Seems pretty stupid to me.
Stephen Miller rightfully made lots of enemies with his racist, neo-Nazi shenanigans. But, he did please and energize his nativist, White Nationalist supporters!
By contrast, Garland has rapidly turned progressive supporters into enemies. But, he won’t get one iota of appreciation or support from Miller and his White Nationalist nativist supporters in the GOP.
Creating policies that are universally opposed or panned. That takes some impressive negative leadership and political idiocy!
Attorney General Hon. Merrick B. Garland — Are these really what “A” papers looked like when he was at Harvard Law? If not, how come it’s now “good enough for government work” when it’s only the lives of the most vulnerable among us at stake?” Official White House Photo Public RealmDan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Dan Kowalski forwards these two 2d Circuit reversals on basic “bread and butter” issues: 1) mental competency (BIA unable or unwilling to follow own precedent); 2) credibility; 3) corroboration; 4) consideration of testimony and evidence:
These aren’t “cases of first impression,” “Circuit splits,” complex questions involving state law, unusual Constitutional issues, or difficult applications of treaties or international law. No, these are the “basics” of fair, competent adjudication in Immigration Court. Things most law students would get correct that IJs and BIA Appellate Judges are getting wrong on a daily basis in their “race to deny.”
Don’t kid yourself! For every one of these “caught and outed” by Circuit Courts, dozens are wrongly railroaded out of America because they are unrepresented, can’t afford to pursue judicial review in the Article IIIs, or are duressed and demoralized by unconstitutional detention and other coercive methods applied by the “unethical partnership” between EOIR and ICE enforcement.
Others have the misfortune to be in the 5th Circuit, the 11th Circuit, or draw Circuit panels who are happy to “keep,the line moving” by indolently “rubber stamping” EOIR’s “Dred Scottification” of “the other.” After all, dead or deported (or both) migrants can’t complain and don’t exercise any societal power! “Dead/deported men or women don’t talk.”☠️⚰️ But, members of the NDPA will preserve and tell their stories of unnecessary human suffering and degradation for them! We will insure that Garland, Monaco, Gupta, and others in the Biden Administration who ignored their desperate moans and tortured screams in their time of direst need are held accountable!🤮
Unfortunately, these decisions are unpublished. They should be published! It’s critically important that the daily gross miscarriages of justice @ EOIR be publicly documented, citable as precedent, and serve as a permanent record of perhaps the most unconstitutional and corrupt episode in modern American legal history.
It’s also essential to keep the pressure on Garland and his so far feckless lieutenants to fix the problem:
Remove the Trump/Miller holdovers @ EOIR;
Prune out the “go along to get along” deadwood;
Rescind the improper hiring of 17 “Billy the Bigot” judicial selections (including the one absurdist selection by “AG for a Day Monty Python” — talk about a “poke in the eyes with a sharp stick” to progressives);
Bring in top notch progressive practical scholars as leaders and REAL judges at both the appellate and trial levels of EOIR –NOW;
Make the “no brainer” changes to eradicate Trump-era unethical, xenophobic “precedents” and inane “rules” and establish due process and fundamental fairness, including, of course, racial and gender equity in decision making.
So far, Garland has pretended that the “Culture of Denial” flourishing under his nose at HIS EOIR doesn’t exist! It does exist — big time — and it continues to get worse, threaten more lives, and squander more resources every day!
Due process (not to mention simple human decency) requires bold, immediate ACTION. Garland’s continued dawdling and inaction raises the issue of what is the purpose of an Attorney General who allows his “delegees” (basically Stephen Miller’s “judges”) to violate due process every day! There is no more important issue facing the DOJ today. Garland’s silence and inaction raise serious questions about his suitability to serve as the American public’s top lawyer!
Garland, Monaco, and Gupta appear to be enjoying their “Miller Lite Happy Hour @ DOJ.” Those communities of color and women suffering from their indolence and inaction, not so much! — “Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of ColorAbused, battered refugee women don’t appear to be enjoying “Miller Lite Time” @ DOJ quite the way Garland, Monaco, and Gupta are! Hard to hold that 16 oz. can when your hands are shackled and you are being “racked” by A-B-, L-E-A-, Castro-Tum and other “Miller brewed” precedents. “She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Groups to AG: Immigration courts need new leaders, hiring review
May 19, 2021 – 4:30 p.m. By Suzanne Monyak, CQ
Dozens of human and civil rights organizations called on Attorney General Merrick Garland on Wednesday to overhaul leadership and review hiring decisions at the U.S. immigration court system, raising concerns of politicized hiring under the prior administration.
In a letter obtained by CQ Roll Call, the 70 organizations accused the Trump administration of transforming the immigration courts, housed within the Justice Department’s Executive Office for Immigration Review, “into a conveyor belt for deportation” and of “systematically hiring personnel to carry out President Trump’s anti-immigrant agenda.”
Under the previous administration, EOIR promoted a number of immigration judges with high asylum denial rates, as well as judges with a history of misconduct complaints.
“Critical and urgent personnel changes are needed to rehabilitate the radically transformed immigration court system that continues to cause irreparable harm and suffering for immigrants and their families,” wrote the organizations, which include the American Immigration Lawyers Association, National Immigration Law Center, Human Rights First and others.
In addition to reviewing personnel decisions made under the Trump administration, the advocates urged Garland to “immediately install new leadership to all key posts” and “diversify the immigration judge corps” by hiring more judges with nonprofit backgrounds.
The organizations faulted the Biden administration for following through with the recent hires of 17 immigration judges, announced earlier this month, most of them with backgrounds as criminal prosecutors and Department of Homeland Security lawyers.
“Despite the Biden-Harris administration’s stated commitment to restoring fairness and balance to the immigration courts, the DOJ continues to rely on Trump-era policies and hiring practices that bias the immigration court system towards prosecution,” the groups wrote.
Garland, confirmed to the helm of the Justice Department in March, inherited a slew of policy changes to the immigration court system implemented under the Trump administration, including policies aimed at speeding up case adjudication and tightening asylum eligibility.
CQ Roll Call reported in 2019 that EOIR leaders revised hiring procedures to make it easier to permanently install certain immigration judges to the Board of Immigration Appeals, the courts’ appellate board that has the power to issue precedential rulings shaping immigration law.
DOJ leadership under the former administration also successfully petitioned to dismantle the immigration judges’ union, which critics say further undermines judges’ discretion over their own caseloads.
A group of senators announced last fall that the Government Accountability Office launched an investigation into the Trump administration’s management of the immigration courts, including its response to the COVID-19 pandemic.
Last month, the Justice Department’s inspector general released a report faulting EOIR for poor communication and a lack of transparency when notifying lawyers and employees about pandemic-related court closures and exposure.
Garland, a former appeals court judge, has yet to rescind most of those changes, fueling calls from lawmakers and advocates to step in.
Last week, Sen. Dianne Feinstein, D-Calif., wrote Garland requesting he rescind two decisions issued by former Attorneys General Jeff Sessions and William Barr that make it harder for domestic abuse survivors, and individuals targeted by gangs or others as a result of their family ties, to qualify for asylum.
“This is out of step with our nation’s reputation as a safe haven for those fleeing persecution,” Feinstein wrote.
In January, top Democrats on the House Oversight and Reform Committee also called on Garland to “take all necessary actions” to protect the immigration judges’ union from decertification.
Also, expect a blast from our Round Table soonabout the ongoing due process outrage at EOIR and Garland’s failure to address it!
Next firestorm on the horizon for Garland’s inept, tone-deaf immigration team: Anger and outrage stemming from failure to rescind Barr’s illegal and disgraceful “decertification” of IJ Union — the NAIJ.More “Day 1 Stuff” still awaiting action by Garland as the justice system deteriorates under his feet!
FULL DISCLOSURE: I am a retired member of the NAIJ.
Holy cow! It’s not like lots of progressives didn’t tell the Biden Transition Team, Garland, and anyone else who would listen that radical, progressive Immigration Court reform needed to be a “Day 1” priority at Justice to avoid further disaster.
Compromising due process in Immigration Court and weaponizing EOIR were the keys to the Trump regime’s constitutional deconstruction effort. Consequently, it’s insane for Garland or any other member of the Biden Administration to think that economic equality, voting rights, racial justice, eradication of hate crime, job creation or any other major objective will be attained without new progressive leadership and aggressive progressive due process reforms in Immigration Court. Won’t happen!
You can’t promote social justice while running Stephen Miller’s Star Chambers at EOIR with judges hand-selected by “Billy the Bigot Barr” under flawed procedures.
“Justice” Star Chamber Style. Try as he might, Judge Garland won’t be able promote social justice, racial justice, or indeed any other type of “Justice @ Justice” while running this operation at EOIR with judges hand selected by “Gonzo” Sessions and “Billy the Bigot Barr.” Awarding 17 prime judgeships that should have to gone to progressive experts to flawed “Billy the Bigot” Barr picks might be the single biggest blunder by any Biden Cabinet Member to date. Talk about “unforced error!”
EOIR plans to resume non-detained hearings on July 6 at the following immigration courts: Dallas, El Paso, Ft. Snelling, Harlingen, Houston, Houston – S. Gessner Road, Houston – Greenspoint Park Drive, Kansas City, Memphis, New York – Broadway, New York – Federal Plaza, New York – Varick, Portland, San Antonio, and San Juan. Hearings in non-detained cases that are scheduled at the aforementioned courts are postponed through July 3. Noncitizens (or representatives who have entered an appearance with the court) who have not received a notice of reset hearing by June 22 should expect scheduled hearings to proceed. As of July 6, 2021, all immigration courts will be holding limited hearings, applying relevant Federal best practices related to communicable disease.
For cases scheduled from July 6 through July 30, parties (or their representatives who have entered an appearance with the court in a case) who have not received notice of a reset hearing by June 22 should plan to attend their hearing as scheduled. All parties, including those with cases scheduled after July 30, should continue to rely on official notices from the immigration court as the best source for information regarding their hearings
Please note that the option to file by email at the above-listed courts will end on Sept. 4, 2021.
NYT: Most of them are from Central America, fleeing gang violence and natural disasters. But the past few months have also brought a much different wave of migration that the Biden administration was not prepared to address: pandemic refugees. They are people arriving in ever greater numbers from far-flung countries where the coronavirus has caused unimaginable levels of illness and death and decimated economies and livelihoods.
Politico: President Joe Biden on Friday shot down a Trump proclamation that blocked potential immigrants deemed to be a “financial burden” on the nation’s health care system from coming to the United States, saying it didn’t align with U.S. interests.
Politico: Education Secretary Miguel Cardona on Tuesday finalized a new regulation that allows colleges to distribute tens of billions in federal pandemic relief grants to all students, regardless of their immigration status or whether they qualify for federal student aid.
WaPo: President Joe Biden met Friday with six immigrants who benefited from an Obama-era policy that protected those brought to the U.S. illegally as children. The president is trying to turn attention toward overhauling the nation’s immigration laws, but it’s an issue he has made scant progress on in the first months of his presidency.
Law360: U.S. Sen. Dianne Feinstein, D-Calif., urged U.S. Attorney General Merrick Garland to overturn his predecessors’ decisions that restricted asylum eligibility for victims of domestic and gang violence, saying those decisions disregarded refugee protections established 40 years ago.
ProPublica: In newly disclosed records, Trump officials cited conspiracies about Antifa to justify interrogating immigration lawyers with a special terrorism unit. The documents also show that more lawyers were targeted than previously known.
WaPo: Immigration arrests and detentions along the U.S.-Mexico border rose slightly in April to 178,622, the highest one-month total in two decades, according to U.S. Customs and Border Protection data published Tuesday, but a decline in the number of teens and children arriving without parents eased pressure on the Biden administration.
Politico: The Department of Health and Human Services has diverted more than $2 billion meant for other health initiatives toward covering the cost of caring for unaccompanied immigrant children, as the Biden administration grapples with a record influx of migrants on the southern border.
WaPo: The fate of interpreters after the troop withdrawal is one of the looming uncertainties surrounding the withdrawal, including a possible resurgence of terrorist threats and a reversal of fragile gains for women if chaos, whether from competing Kabul-based warlords or the Taliban, follows the end of America’s military engagement.
NYT: The findings suggest that their depressed vaccination rate reflects in large measure misinformation about cost and access, as well as concerns about employment and immigration issues, according to the latest edition of the Kaiser Family Foundation Covid-19 Vaccine Monitor.
Salon: Nearly all the judges on the Justice Department list have backgrounds as prosecutors or as counselors at Immigration and Customs Enforcement (ICE), while nearly none have any experience defending migrants.
TRAC: MPP cases assigned to the Brownsville, Texas hearing location continued to show the highest proportion of individuals allowed to enter the U.S.: 45 percent. However, MPP cases from Laredo, Texas which had been scheduled to start its processing over a month later made up a lot of lost ground by the end of April. Only 3 percent of its cases had been transferred into the U.S. at the end of March to await their Immigration Court hearings.
PM 21-19 (PDF) Cancellation of Policy Memoranda 19-02 (Guidelines Regarding New Regulations Governing Asylum and Protection Claims) and 19-03 (Guidelines Regarding the Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States)
PM 21-20 (PDF) Cancellation of Policy Memorandum 19-12 (Guidance Regarding New Regulations Governing Asylum and Protection Claims)
PM 21-21 (PDF) Cancellation of Policy Memorandum 20-04 (Guidance Regarding New Regulations Governing Procedures for Asylum and Withholding of Removal and Credible Fear and Reasonable Fear Reviews)
PM 21-22 (PDF) Cancellation of Policy Memorandum 21-09 (Guidelines Regarding New Regulations Providing for the Implementation of Asylum Cooperative Agreements)
USCIS: U.S. Citizenship and Immigration Services (USCIS) announced today that applicants, petitioners, requestors and beneficiaries may now call the USCIS Contact Center (800-375-5283) to reschedule their biometric services appointments scheduled at a USCIS Application Support Center.
The court held that 8 CFR §§1003.10(b) and 1003.1(d)(1)(ii) unambiguously grant IJs and the BIA general authority to administratively close cases by authorizing them to take “any action” that is “appropriate and necessary” for the disposition of cases. (Arcos Sanchez v. Att’y Gen., 5/5/21) AILA Doc. No. 21051432
Denying the petition for review, the court held that an IJ is not deprived of jurisdiction under 8 CFR §1003.14 over removal proceedings commenced by a Notice of Referral to an IJ that lacks time and place information. (Mejia Romero v. Att’y Gen., 5/5/21) AILA Doc. No. 21051433
The court held that petitioner’s 2007 detention and beating by the Sri Lankan army did not constitute past persecution, and that extortion attempts by the Eelam People’s Democratic Party (EPDP) of Sri Lanka were not motivated by an imputed political opinion. (Thayalan v. Att’y Gen., 5/10/21) AILA Doc. No. 21051438
The court held that the petitioner’s 2000 conviction for second-degree robbery in New Jersey constituted an aggravated felony theft offense under INA §101(a)(43)(G), and thus found that the petitioner was ineligible for asylum and withholding of removal. (K.A. v. Att’y Gen., 5/4/21) AILA Doc. No. 21051435
The court held that petitioner’s grant of Temporary Protected Status (TPS) did not remove the need for him to show that he was admitted in order to be eligible for cancellation of removal, and that his grant of TPS was not an admission for cancellation purposes. (Artola v. Garland, 5/5/21) AILA Doc. No. 21051439
Law360: U.S. residents who are not granted legal permanent residency before they turn 18 can still get citizenship through their naturalized parents, a split Ninth Circuit ruled Thursday in a published en banc opinion that reexamined court precedent.
The court held that, for purposes of removability for crimes involving moral turpitude (CIMT), the phrase “the date of admission” in INA §237(a)(2)(A)(i)(I) is ambiguous, and the BIA’s interpretation of the phrase in Matter of Alyazji was permissible. (Route v. Garland, 5/6/21) AILA Doc. No. 21051440
The court upheld the BIA and IJ’s conclusion that the petitioner’s application for asylum and related relief had been abandoned under 8 CFR §1003.47(c) based on her failure to submit biometrics or establish good cause for her failure to do so. (Gonzalez-Veliz v. Garland, 5/4/21) AILA Doc. No. 21051437
Law360: An El Salvadoran woman who can’t read and whose family mixed up the month and day of her immigration court hearing can seek asylum again, after the Ninth Circuit ruled that her exceptional circumstances warranted a second shot.
Where petitioner argued that an IJ had failed to inform him he could apply for preconclusion voluntary departure, the court found it lacked jurisdiction to consider his petition, because the BIA had ruled that preconclusion voluntary departure was not warranted. (Blanc v. Att’y Gen., 5/11/21) AILA Doc. No. 21051436
Law360: Conservation groups backed by an anti-immigration think tank asked the Ninth Circuit Tuesday to revive their claims that certain U.S. Department of Homeland Security immigration programs must undergo environmental review, arguing a review exemption leads to higher immigration numbers, which then drives ecological degradation.
Verge: While that ban never came to pass, the ability for people with H-4 visas to work is still under threat from a lawsuit against the federal government. The suit, called Save Jobs USA v. US Department of Homeland Security, was brought by tech workers, who argue that H-4 holders are unfair competition for Americans looking for jobs.
ImmProf: The question now arises whether clients with fake-date NTAs can utilize Pereira and now Niz-Chavez to defeat the “stop-time” effect for cancellation of removal, where such fake NTAs existed, even where there is a subsequent notice of hearing with a “real date” from EOIR. The short answer is “Yes”.
DHS released a statement noting that it is “working to streamline a system for identifying and lawfully processing particularly vulnerable individuals who warrant humanitarian exceptions” under the CDC Order issued under its Title 42 public health authority. AILA Doc. No. 21051330
The CIS Ombudsman’s Office issued a reminder that individuals who are eligible to renew their DACA and employment authorization may submit their renewal request between 150 days and 120 days before the expiration on their current Form I-797, Notice of Approval, and on the EAD. AILA Doc. No. 21051035
DHS OIG found that from 1/1/16 through 6/30/19, 83 CBP employees violated CBP policies and guidance by posting, or commenting on, offensive content on various social media platforms. DHS OIG, however, found no evidence that senior CBP leaders were aware of more than a few of the cases, and determined that CBP and Border Patrol headquarters officials took no action to prevent further misconduct, except when directed to do so by DHS. DHS OIG found no evidence that senior CBP headquarters or field leaders were aware of offensive content posted to a private Facebook group until reported by the media in July 2019. AILA Doc. No. 21051441
Two items of particular interest:First the article from Igor Derysh in Solon ripping Garland’s inexcusable “Miller Lite” hiring practices at EOIR. I am quoted, among others.
What’s the purpose of winning an election if this guy remains in charge of EOIR? Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
The absolute stupidity and betrayal of awarding the Administration’s precious first 17 Federal Judicial positions to lesser qualified, non-progressive individuals hired under tainted, exclusionary, biased, restrictionist practices established by Sessions and Barr under Miller’s negative leadership should outrage all progressives and members of the NDPA. Progressives must demand that the Biden Administration get some due-process oriented, progressive competence installed at the DOJ to straighten out EOIR — a job that to date has proved to be beyond Garland’s ability!
They might also replace Garland’s incompetent “immigration PR team” at DOJ which continues to feed us BS and recycled Trump Administration propaganda that anybody with any familiarity with the Immigration Courts could tell you is pure, unadulterated BS! How insulting!
The millions of folks, including lawyers, caught up in EOIR’s web of restrictionist malicious incompetence deserve better than the insultingly tone-deaf Garland has delivered. Much better!
Progressive reform at EOIR is possible, and it isn’t a profound or long term project. Garland obviously isn’t up to the job. But, there are lots of progressive legal stars out here who can get the job done!
This also illustrates the continuing problem of Dem Administrations appointing AGs who are not experts in immigration and due process and who therefore fail to prioritize progressive immigration, human rights, and due process reforms. Far from being an “afterthought” or “low priority” these are the keys to equal justice and racial justice in America and probably the essential reforms on which the future of our entire democracy depends!
It also illustrates my point that in the future, nobody should become Attorney General, Secretary of DHS, an Article III Federal Judge, or an Immigration Judge unless they have represented individuals in Immigration Court — the critically important “retail level” of our justice system where the “rubber meets the road” of American justice. Right now, the “car is running on four flats” while Garland proves unable to change the tires!
We can’t afford any more of Garland’s “Amateur Night at the Bijou” approach to immigration, human rights, due process, personnel, and racial justice in America!
America needs to end “Amateur Night” at Garland’s EOIR and bring in qualified progressive human rights, immigration, due process leaders to fix the deadly mess before more lives are lost and more taxpayer funds wasted supporting and promoting “malicious incompetence!” PHOTO: Thomas Hawk Creative Commons Amateur Night
Second, the article about the grotesquely illegal abuse of the immigration bureaucracy by the Trump DHS to target and harass lawyers defending the due process rights and humanity of migrants shows just how deeply the cancer of the Trump kakistocracy penetrated into the broken immigration bureaucracy. Just another example of how completely broken, corrupt, and dysfunctional that bureaucracy has become.
It also demonstrates the treacherous stupidity of Garland continuing to tolerate problematic Trump/Miller “holdovers” and actually appointing “same old, same old” non-progressives recruited under Barr, Miller, and Trump to key “life or death Federal Judgeships.”
Additionally, it raises the question of how on earth will Garland’s DOJ effectively and credibly investigate racial justice issues in local policing and elections while Garland is running a White Nationalist, racist, misogynist, grotesquely unfair, regressive, “worst practices court system”at EOIR. Racial justice and competency reform needs to start “at home” — with Garland’s “wholly owned court system” that bears little or no resemblance to a “court of justice!”
Progressives who played a key role in electing Biden and Harris, on the basis of promises to return due process and progressive expertise to the Immigration Courts, and effectively getting Garland his job, need to make their opposition to Garland’s indolent, inexcusable, mis-handling of EOIR known to the Biden Administration and Dem leaders on the Hill! It’s time for progressives and due process advocates to stop letting yourselves be abused by those you have put in power!
“Eyore In Distress” — Garland’s failure to set tone of due process, human rights, excellence, independence @ EOIR threatens U.S. Justice System — could led to downfall of American democracy! Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Because of it’s critical importance and it’s “right on” expose of the most glaring problem in American justice today, this timely editorial is quoted in full:
Immigration Courts Aren’t Real Courts. Time to Change That.
The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values. It is separate from the newsroom.
President Biden took office with a promise to “restore humanity and American values” to the immigration system. If he’s going to succeed, it will take more than shutting down construction on his predecessor’s border wall. The most formidable obstacle to making the U.S. immigration system more humane and functional is invisible to most Americans: the nation’s broken, overwhelmed immigration court system.
Every day, hundreds of immigration judges slog through thousands of cases, unable to keep up with a crushing backlog that has more than doubled since 2016. Many cases involve complex claims of asylum by those who fear for their safety in their home countries. Most end up in legal limbo, waiting years for even an initial hearing. Some people sit in detention centers for months or longer, despite posing no risk to the public. None have the right to a lawyer, which few could afford anyway.
“The system is failing, there is no doubt about it,” one immigration judge said in 2018. As long as the system is failing, it will be impossible to achieve any broad-based immigration reform — whether proposed by Mr. Biden or anyone else.
The problem with these courts isn’t new, but it became significantly worse under the Trump administration. When he took office in 2017, President Donald Trump inherited a backlog of about 540,000 cases, already a major crisis. The administration could have used numerous means to bring that number down. Instead, Mr. Trump’s team drove it up. By the time he left office in January, the backlog had ballooned to nearly 1.3 million pending cases.
How did that number get so high? Some of the increase was the result of ramped up enforcement of immigration laws, leading to many more arrests and detentions that required court attention. The Trump administration also reopened hundreds of thousands of low-priority cases that had been shelved under President Barack Obama. Finally, Mr. Trump starved the courts of funding and restricted how much control judges had over their own dockets, making the job nearly impossible for those judges who care about providing fair and impartial justice to immigrants.
At the same time, Mr. Trump hired hundreds of new judges, prioritizing ideology over experience, such as by tapping former Immigration and Customs Enforcement prosecutors and others who would help convert the courts into a conveyor belt of deportation. In 2018, then Attorney General Jeff Sessions imposed an annual quota of 700 cases per judge. One judge testified before a House committee last year that Mr. Trump’s system was “a widget factory management model of speed over substance.”
By some measures, the plan worked: In 2020, the immigration courts denied 72 percent of asylum claims, the highest portion ever, and far above the denial rates during the Obama and George W. Bush administrations.
If the goal was to empty the United States of all those asylum seekers, Mr. Trump clearly failed, as evidenced by the huge backlog he left Mr. Biden. But the ease with which he imposed his will on the immigration courts revealed a central structural flaw in the system: They are not actual courts, at least not in the sense that Americans are used to thinking of courts — as neutral arbiters of law, honoring due process and meting out impartial justice. Nor are immigration judges real judges. They are attorneys employed by the Executive Office for Immigration Review, which is housed in the Department of Justice. It’s hard to imagine a more glaring conflict of interest than the nation’s top law-enforcement agency running a court system in which it regularly appears as a party.
The result is that immigration courts and judges operate at the mercy of whoever is sitting in the Oval Office. How much money they get, what cases they focus on — it’s all politics. That didn’t used to be such a problem, because attorneys general rarely got involved in immigration issues. Then Mr. Trump came along and reminded everyone just how much power the head of the executive branch has when it comes to immigration.
The solution is clear: Congress needs to take immigration courts out of the Justice Department and make them independent, similar to other administrative courts that handle bankruptcy, income-tax and veterans’ cases. Immigration judges would then be freed from political influence and be able to run their dockets as they see fit, which could help reduce the backlog and improve the courts’ standing in the public eye. Reform advocates, including the Federal Bar Association, have pushed the idea of a stand-alone immigration court for years without success. The Trump administration made the case for independence that much clearer.
In the meantime, there are shorter-term fixes that could help restore a semblance of impartiality and professionalism to the immigration courts.
First, the system must be properly staffed and funded to deal with its backlog. One way to do that is by hiring more judges, and staff members to support them. Today there are about 550 immigration judges carrying an average of almost 3,000 cases each, which makes it nearly impossible to provide anything like fair and consistent justice. Earlier this week, Attorney General Merrick Garland asked Congress for a 21 percent increase in the court system’s budget. That’s a start, but it doesn’t come close to solving the problem. Even if 600 judges were able to get through 700 cases a year each — as Mr. Sessions ordered them to — it would take years to clear up the existing backlog, and that’s before taking on a single new case.
This is why another important fix is to stop a large number of those cases from being heard in the first place. The Justice Department has the power to immediately remove as many as 700,000 cases from the courts’ calendar, most of them for low-level immigration violations — people who have entered the country illegally, most from Mexico or Central America, or those who have overstayed a visa. Many of these cases are years old, or involve people who are likely to get a green card. Forcing judges to hear cases like these clutters the docket and makes it hard to focus on the small number of more serious cases, like those involving terrorism or national-security threats, or defendants facing aggravated felony charges. At the moment, barely 1 percent of all cases in the system fall into one of these categories.
A thornier problem is how to stamp out the hard-line anti-immigrant culture that spread throughout the Justice Department under Mr. Trump, Mr. Sessions and the former president’s top immigration adviser, Stephen Miller. For instance, a 2019 department newsletter sent to immigration judges included an anti-Semitic reference and a link to VDare, an anti-immigrant group that regularly publishes white nationalists.
One of Mr. Biden’s first steps in office was to reassign the head of the immigration court system, James McHenry, who played a central role in many of Mr. Trump’s initiatives. But it’s generally hard to fire career civil servants, like the many judges and other officials tapped to promote Mr. Trump’s agenda. The Biden administration can reduce their influence by reassigning them, but this is not a long-term fix. While these judges are subject to political pressures, there can be no true judicial process.
If there’s any silver lining here, it is to be found in Mr. Trump’s overreach. The egregiousness of his administration’s approach to immigration may have accelerated efforts to solve the deeper structural rot at the core of the nation’s immigration courts.
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We know that they aren’t “real courts;” but, they could and should be — progressive, due process oriented, model courts to boot! It will never happen, however, with the tone-deaf way Garland has approached EOIR in his first 60 days!
As progressives, immigration, human rights, women’s rights, due process, and racial justice advocates well know, Garland’s incredibly poor, downright insultingstewardship @ DOJ has already made things worse at EOIR! Every day this “fake” court system — a massive “big middle finger” to the integrity of American justice and a shocking betrayal of those who fought to preserve justice and bring the Biden Administration into power — continues is a “bad day” for equal justice, racial justice, and gender justice in America!
It’s also an inexcusable squandered opportunity for the Biden Administration to “recreate” the broken, biased, lacking in competence “Immigration Judiciary” as an independent progressive judiciary that was promised in rhetoric, but has been mocked in action.
Can any progressive imagine how the Heritage Foundation or the Federalist Society might have reacted if Trump, McConnell, Miller, and the DOJ had treated their recommendations for creating a reactionary far-right judiciary with the callous disregard and total disrespect that Garland has shown for the blueprint set forth by progressives for rapidly reforming the Immigration Judiciary into the model progressive judiciary needed to save American justice (not to mention save the lives of many of the most vulnerable, deserving, and needy among us)?
For Pete’s sake, Garland just gave Stephen Miller, “Billy the Bigot” Barr, and “Monty Python” “deference” on his first 17 totally inappropriate “judicial picks” while telling fighters for due process and human dignity to “go pound sand.” We weren’t even given the courtesy of being informed — Kowalski and I had to “smoke it out” with the help of “DT-21.”
“Courtesy and deference” for Miller, Barr, and “Monty Python;” total disrespect for the NDPA and the humans (“persons” under the Constitution) we represent? Come on, man!
The BIA has “restrictionist judges” going all the way back to the Bush II political travesty supplemented by Miller, Sessions, and Barr. Yet, there is not a single, not one, true progressive practical scholar-immigration/human rights expert among this “Gang of 23”— a group that includes a number of “appellate judges” who distinguished themselves with their overt hostility, to immigrants’ rights, rudeness to attorneys, and denial of nearly 100% of asylum claims coming before them. These are “Garland’s Judges?”
Worse, yet another totally inappropriate “insider appointment” to the BIA by Garland— bypassing the numerous far better qualified “practical scholars” in the private sector — is rumored to be in the offing! NO! This outrageous, tone-deaf performance and disrespect for progressive human rights experts by Garland must stop!
As the editorial correctly suggests, starting to fix EOIR, even in the absence of long overdue congressional action, is not rocket science! The incompetent senior “management” @ EOIR and the entire membership of the BIA can and should be reassigned. Tomorrow!
Experienced, highly competent, scholarly, creative, courageous, progressive judges already on the EOIR bench — like Judge (and former BIA Appellate Judge and DOJ Senior Executive) Noel Brennan (NY), Judge Dana Marks (SF), and Judge Amiena Kahn (NY) — should be detailed to Falls Church HQ to start fixing EOIR and getting the BIA functioning as a real appellate court — focused on due process, high quality scholarship, best practices, and holding ICE accountable for following the law — until more permanent appointments and necessary due process reforms can be made.
In the meantime, competent, progressive, temporary leadership can bring in temporary appellate judges at the BIA with sound records of fair asylum adjudication to end “refugee roulette” and eradicate the disgraceful “asylum free zones” being improperly run by unqualified IJs in some Immigration Courts. Reform of this disgustingly broken system can’t “wait for Godot” any longer!
As Judge Jeffrey Chase cogently stated in Law360, further “permanent” judicial appointments @ EOIR should be frozen pending development of merit-based criteria and active recruitment aimed at creating a more diverse, progressive judiciary. All existing “probationary judges” selected by Barr should have their positions “re-competed” under these merit-based criteria, with avenues of public input built into the permanent selection system.
Progressives, colleagues, members of the Round Table, members of the NDPA, if you’ve had enough of Garland’s lousy, insulting, tone-deaf, indolent, due-process-disparaging performance at EOIR let your voices be heard with the Biden Administration! What is going on at EOIR every day under Garland is not acceptable! The life-threatening, demeaning, totally unnecessary EOIR Clown Show must go! Now!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept — Continues to be in demand under Garland!
Judge Garland & Secretary Mayorkas continue to abuse asylum seekers at the Southern Border & in the U.S. Albrecht Dürer, Public Domain, via Wikimedia CommonsKevin Sieff Latin American Correspondent, Washington Post
MATAMOROS, Mexico — Carolina had memorized the date, but she triple-checked her documents just to make sure. For months, her life had revolved around the court hearing at which she could finally make her asylum claim.
Like tens of thousands of asylum seekers who reached the U.S. border during the Trump administration, the 36-year-old from Honduras had been sent to wait in Mexico for her immigration hearing. She was told to return to the border on her court date.
So on Feb. 26, 2020, she woke up early and put on her best blouse. She said a short prayer. But not long after her bus left for Laredo, Tex., gunmen stopped the vehicle. They kidnapped Carolina and her 15-year-old daughter, took them to a stash house packed with other kidnapped migrants and demanded thousands of dollars in ransom.
By the time they were released a few days later, Carolina had missed her day in court.
Her asylum case, it turned out, had been closed in absentia because she hadn’t shown up. Of the 68,000 asylum cases processed under the Trump-era Migrant Protection Protocols, the policy also know as “Remain in Mexico,” 28,000 were closed for the same reason: Because asylum seekers didn’t present themselves.
. . . .
“MPP deprived people of due process and fundamental fairness,” she said. “In order to restore access to asylum in a meaningful way, the Biden administration needs to reopen cases for people ordered removed under MPP and allow them to pursue their claims safely from within the United States.”
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Read Kevin’s full article at the link.
The last statement, from Haiyun Damon-Feng, the director of the Adelante Pro Bono Project and assistant director of the William H. Gates Public Service Law Program at the University of Washington School of Law, sums it up. It’s not rocket science! It’s basic “Con Law 101” with some common sense and human decency thrown in! It’s also an essential part of the Biden Administration fulfilling basic campaign promises! Folks like Damon-Feng are the ones who should be running this system, solving the problems, and reconstructing the legal asylum system!
In what kind of “court” system are kidnapped individuals, some of them minors and children, further penalized and the Government allowed to get away with not keeping accurate addresses of individuals in their process and of knowingly sending them into danger zones? The victims remain in limbo and suffering while the perpetrators of these illegal outages — both current and former government officials — have not been held accountable. This is a national disgrace compounded by the fact that neither Judge Garland nor Secretary Mayorkas have taken corrective actions. Nor have they cleaned out the deadwood from their own legally and morally bankrupt systems and put competent individuals in charge!
Qualified Immigration Judges and competent administrators at the DOJ and DHS could have started solving these problems beginning the day after the inauguration. That 100 days into the Biden Administration this system is still operating illegally and taking a human toll is both a betrayal of campaign promises and an abuse of humanity! It’s also horrible and clearly illegal policy!
How does an Administration that is actively engaged in “Dred Scottifying” people of color at the border and in their wholly owned Immigration “Courts” — actually modern day “Star Chambers” — have any “legitimate voice” on racial justice in America?
“Justice” Star Chamber Style
🇺🇸⚖️🗽Due Process Forever! Human lives matter! The Constitution matters! Asylum law matters!
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!
Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Every woman knows what I’m talking about. It’s the presumption that makes it hard, at times, for any woman in any field; that keeps women from speaking up and from being heard when they dare; that crushes young women into silence by indicating, the way harassment on the street does, that this is not their world. It trains us in self-doubt and self-limitation just as it exercises men’s unsupported overconfidence.”
Rebecca Solnit, Men Explain Things to Me
On April 5, the U.S. Court of Appeals for the Ninth Circuit issued a published decision in Rodriguez Tornes v. Garland. The opening sentences of the decision are heartbreaking:
Since the age of five, Petitioner has been told that men will beat her if she does not submit. Her mother demanded that she learn how to do housework, how to accept spousal abuse, and how “to obey everything that [her] husband would say.” She beat Petitioner with various objects almost daily, in part to prepare her for future beatings from her husband.
But along with the darkness there was also hope. The decision’s opening paragraph concludes: “Yet Petitioner came to believe that ‘there should be equality in opinions[] and in worth’ between men and women. She became a teacher.”
Remarkably, over all the years that followed, the Petitioner’s hope survived the most brutal attempts to crush her into silence and submission. As her mother had foreseen, she endured unspeakable and repeated forms of physical and psychological torture, including beatings and rape, at the hands of her husband. Yet she continued to express the belief in her rights as an equal, and was brutally punished each time she did so, in an attempt to destroy the part of her capable of forming such belief. Neither the police nor her own family offered her any possibility of protection.
When she finally succeeded in escaping to the U.S., her abuse continued, merely transferred to the hands of another domestic partner with whom she had three children in this country. In 2017, our government deported both her and her latest abuser. Facing the prospect of continued harm in her native Mexico, her still unbroken hope guided her to the U.S. once again, where she was placed into removal proceedings.
Her hope was briefly rewarded when an Immigration Judge granted the Petitioner asylum, ruling that her persecution was on account of her feminist political opinion. The Immigration Judge alternatively held that asylum was warranted on account of the Petitioner’s membership in the particular social group consisting of “Mexican females,” which formed at least one central reason for her persecution.
It isn’t clear why ICE appealed the IJ’s decision. On appeal, the BIA acknowledged the Petitioner’s honesty and the ongoing, systemic nightmare of violence she endured because of her gender and unbroken belief that she possessed rights. And yet the BIA chose to act like a rubber stamp for the administration it served, and found a way to reverse the IJ’s well-reasoned decision. According to a concurring opinion of the circuit court, the BIA managed this by suggesting that the Petitioner’s brutal suffering was motivated by her “personal relationship” with her abuser. According to the concurrence, the BIA supported this conclusion by relying on the decision of former Attorney General Jeff Sessions in Matter of A-B-.
Of course, asylum applications require an individualized analysis of the facts of the specific case under consideration. Matter of A-B- involved a different asylum seeker from a different country who experienced different facts than this petitioner. So in citing A-B- to reach a conclusion so at odds with the facts of this case, the BIA’s judges were signaling their choice of a specific policy objective over their duty to neutrally apply law to specific facts.
Among the facts the BIA chose to ignore was the opinion of an expert who drew “on more than three decades of research, writing, legal representation, and lawmaking” in support of her conclusion. The expert, Prof. Nancy Lemon of the Univ. of Cal. – Berkeley Law School, explained how all of the weapons at abusers’ disposal are “tied to social belief systems that ‘men are entitled to dominate and control women because the male sex is considered superior.’” Prof. Lemon went into great detail in explaining the political nature of the mistreatment. Of course, it mattered not to the Board.
In discussing this case, an esteemed colleague pointed to a decision that the same court issued more than three decades ago. In 1987, in an opinion authored by Judge John T. Noonan, Jr., a conservative Reagan appointee, the Ninth Circuit concluded that a Salvadoran woman subjected to repeated sexual abuse and other violence by a sergeant in the Salvadoran military had been persecuted on account of her political opinion where the abuser threatened to falsely label her a “subversive if she refused to submit to his abuse.”1 In the words of Judge Noonan, the fact that the persecutor gave the asylum seeker “the choice of being subjected to physical injury and rape or being killed as a subversive does not alter the significance of political opinion…” The decision reversed the conclusion of the BIA that “the evidence attests to mistreatment of an individual, not persecution,” precisely the same finding the Board used more than three decades later in denying Ms. Rodriguez Tornes of her grant of asylum.
In 1993, Justice Samuel Alito, then sitting at the Third Circuit, wrote that “we have little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes.”2 28 years later, the Ninth Circuit cited Justice Alito’s words in Rodriguez Tornes, adding that it had reached the same conclusion in its own unpublished 1996 decision.3 These were obviously not the decisions of liberal judges forwarding a political agenda. To the contrary, these judges were able to transcend political ideology by neutrally applying law to facts; this is what judges do. As a result, the law of asylum has progressed to increasingly provide asylum protection to victims of domestic abuse. Immigration Judges appointed by both Republican and Democratic administrations have followed suit, authoring well-reasoned decisions granting asylum in numerous cases of domestic abuse, including this one.
Yet over the same period of time, the BIA has stubbornly refused to budge from its 1980s position that domestic abuse is simply a personal matter not linked to a political opinion within society. In the words of Jeff Sessions in Matter of A-B-, the vile abuse was simply due to the abuser’s “preexisting personal relationship with the victim.”4
When a mother feels compelled to begin abusing her five year old daughter to prepare her to obey her husband one day, can the inevitable spousal abuse that follows really be dismissed as just a personal matter? And when the record contained Prof. Lemon’s evidence (because expert testimony is evidence) of “a correlation between patriarchal norms that support male dominance and violence against women by intimate partners,” what unsupported overconfidence did the BIA’s judges rely on in explaining that they know better?
The BIA decided this case during the Trump Administration. For those hoping that the change in administration will usher in a change in the Board’s view, it bears noting that neither the Clinton nor Obama administrations brought about a sea change in the Board’s approach to domestic violence claims. Under Clinton, the BIA issued Matter of R-A-,5 a precedent that essentially precluded the granting of asylum to domestic violence victims based on their membership in a particular social group. The decision was vacated by then-Attorney General Janet Reno, who promised more enlightened regulations on the issue that never arrived. Similar regulations were rumored to be in the works under Eric Holder, but again did not materialize. The BIA’s one grudging concession to the political climate of the Obama era, Matter of A-R-C-G-, was later vacated by Jeff Sessions. While the BIA discussed a second decision under Obama expanding on the narrow holding of A-R-C-G-, it too never came to be.
Based on that history, it seems safe to say that without drastic action by Attorney General Merrick Garland, the BIA will continue issuing the same denials for the same reasons as before. For every individual such as Ms. Rodriguez Tornes who is able to succeed on appeal, there are countless more who merely end up as stratistics, deported to face more of the horrendous abuse that drove them here in the first place. The Ninth Circuit recently had to correct the BIA’s determination that attempted gang rape did not constitute persecution,6 and last year, reversed the Board erroneous rejection of a domestic violence victim’s particular social group on the grounds that it contained a few too many words.7 The BIA continues to be composed of the exact same group of judges who issued each of those decisions.
It is the role of the BIA to reach fair decisions by applying the applicable law to the individual facts. Doing so in the domestic violence context would require the Board to finally recognize opposition to systemic male oppression as a political opinion warranting asylum. Instead, for decades the BIA has enforced the offensive, outdated message to women seeking protection from such abuse that “this is not their world.” The time has come to finally put an end to this sad substitute for true administrative appellate review.
Notes:
Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987).
Fatin v. I.N.S., 12 F.3d 1233, 1242 (3rd Cir. 1993).
Moghaddam v. I.N.S., 95 F.3d 1158 (9th Cir. 1996) (unpublished).
Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020).
Copyright 2021, Jeffrey S. Chase. All rights reserved.
Republished by permission.
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Different style, but the same message as I delivered yesterday about the BIA’s institutionalized racist misogyny and the strange tolerance that Attorney General Merrick Garland has exhibited to date for this type of grotesque judicial misconduct.
And, this is on top of the astounding, largely self-inflicted 1.3 million case backlog and total dysfunction generated by the BIA’s failures combined with the “maliciously incompetent” effort by DOJ politicos and EOIR bureaucrats to disguise a “deportation railroad” as “administrative review!” Leaving aside all the legal travesties, the mal-administration and waste of public resources alone would be more than enough to require the immediate replacement of EOIR “upper (mis)management” and the entire BIA with qualified judicial professionals and professional judicial administrators.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Jeffrey and I are hardly the first to expose the charade of “appellate review” at the BIA. Two decades ago, following the “Ashcroft Purge,” administrative scholar and former GOP House Counsel Peter Levinson published his seminal work “The Facade of Quasi-Judicial Independence In Immigration Appellate Adjudications” documenting the mockery of due process and legitimate judicial practices being foisted off on the public by DOJ politicos.
In the two decades since, legislators, DOJ Officials, and Article III Judges have done their utmost to ignore and paper over the glaring constitutional and administrative disasters identified by Peter. Not surprisingly, during that time the BIA and the Immigration Courts have descended into a slimy mass of disastrous bias, injustice, and judicial and administrative incompetence unequaled in American Justice since the heyday of the First Era of Jim Crow.(We are now in the “New Era of Jim Crow.”)
Of course, we need an independent Article I Immigration Court as a matter of the highest national priority. But, it’s not on schedule to happen tomorrow, even though it should! In the interim, Judge Garland could fix lots of the festering problems in this system. I gotta wonder if and when he is going to wake up and pay attention to the “assembly line injustice” being cranked out by “his” Immigration Courts?
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“Nothing to see here, fellas, just the private dynamics of a personal relationship! Tough noogies, baby! You should have been born a man. It’s your own fault! Ha! Mercy and compassion? Those aren’t in any of our precedents, are they?” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons“Expert, what expert? We’re the experts! That is, in misogyny, abuse of asylum seekers of color, and specious legal reasoning. And, Garland is letting us get away with it! Whew, for a moment I thought he might have been a ‘real’ judge, but seems he’s just like us. Think I’ll jump for joy! Four more years of unbridled abuse of the most vulnerable and helpless, and I’ll be eligible to retire! Shooting down female asylum seekers for no good reason is like shooting fish in a barrel, just like Jeffy Gonzo and Billy the Bigot taught us! Wonder how many we can kill this year? Happy hunting! But, let’s stay out of the 9th Circuit. It’s dangerous territory. I hear the 5th Circuit loves misogynists and White Nationalists!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
PANEL: Susan P. Graber, M. Margaret McKeown, and Richard A. Paez, Circuit Judges.
OPINION BY: Judge Graber
CONCURRING OPINION: Judge Paez
COUNSEL: Elaine J. Goldenberg (argued), Munger Tolles & Olson LLP, Washington, D.C.; Sara A. McDermott, Munger Tolles & Olson LLP, Los Angeles, California; Richard Caldarone, Julie Carpenter, and Rachel Sheridan, Tahirih Justice Center, Falls Church, Virginia; for Petitioner.
Timothy Bo Stanton (argued), Trial Attorney; Sabatino F. Leo, Senior Litigation Counsel; Office of Immigration
ROGRIGUEZ TORNES V. GARLAND 5
Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Blaine Bookey, Karen Musalo, Neela Chakravartula, and Anne Peterson, Center for Gender & Refugee Studies, U.C. Hastings College of Law, San Francisco, California, for Amicus Curiae Center for Gender & Refugee Studies.
Betsey Boutelle, DLA Piper LLP (US), San Diego, California; Anthony Todaro, Jeffrey DeGroot, and Lianna Bash, DLA Piper LLP (US), Seattle, Washington; for Amicus Curiae National Immigrant Women’s Advocacy Project.
SUMMARY BY COURT STAFF:
Immigration
The panel granted Maria Rodriguez Tornes’s petition for review of the Board of Immigration Appeals’ decision reversing an immigration judge’s grant of asylum and withholding of removal, and remanded, holding that the evidence compelled the conclusion that Rodriguez established a nexus between her mistreatment in Mexico and her feminist political opinion.
The panel noted that under the Attorney General’s recent decision in Matter of A-B-, 28 I. & N. Dec. 199 (A.G. 2021) (“Matter of A-B- II”), in order to establish the requisite nexus for asylum relief, a protected ground (1) must be a but-for cause of the wrongdoer’s act; and (2) must play more than a minor role—in other words, it cannot be incidental or tangential to another reason for the act. The panel explained that this standard was substantively indistinguishable from this circuit’s precedent. The panel wrote that the fact that an unprotected ground, such as a personal dispute, also constitutes a central reason for persecution does not bar asylum. Rather, if a retributory motive exists alongside a protected motive, an applicant need show only that a protected ground is “one central reason” for his or her persecution.
Observing that this court has held repeatedly that political opinions encompass more than electoral politics or formal
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
ROGRIGUEZ TORNES V. GARLAND 3
political ideology or action, the panel wrote that it had little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes. The panel concluded that Rodriguez’s testimony concerning equality between the sexes, her work habits, and her insistence on autonomy compelled the conclusion that she has a feminist political opinion. The panel also held that the record compelled the conclusion that Rodriguez’s political opinion was at least one central reason for her past persecution. The panel explained that some of the worst acts of violence came immediately after Rodriguez asserted her rights as a woman, and that the fact that some incidents of abuse may also have reflected a dysfunctional relationship was beside the point, as Rodriguez did not need to show that her political opinion—rather than interpersonal dynamics—played the sole or predominant role in her abuse. By demonstrating that her political opinion was “one central reason” for her persecution, the panel concluded that Rodriguez likewise established that her political opinion was “a reason” for her persecution for purposes of withholding of removal.
Because in granting relief under the Convention Against Torture the agency necessarily determined that Rodriguez carried her burden to prove the other elements of her claims for asylum and withholding of removal, the panel concluded that Rodriguez’s petition presented a recognized exception to the ordinary remand rule under I.N.S. v. Ventura, 537 U.S. 12 (2002) (per curiam). The panel explained that because the agency concluded that Rodriguez met the higher burden of establishing that she is likely to be tortured, she necessarily met the lower burdens for asylum and withholding relief of establishing that she has a well-founded fear, or clear probability, of persecution. Similarly, because the Board determined that the Mexican government would acquiesce to
4 ROGRIGUEZ TORNES V. GARLAND
Rodriguez’s torture, the panel concluded that the Board had necessarily decided that the Mexican government would be unwilling or unable to protect Rodriguez from future persecution. The panel also concluded that because the Board determined that it would be unreasonable for Rodriguez to relocate within Mexico to avoid future torture, she likewise could not relocate to avoid future persecution.
The panel held that Rodriguez was thus eligible for asylum and entitled to withholding of removal, and it remanded for the Attorney General to exercise his discretion whether to grant Rodriguez asylum, and if asylum is not granted, to grant withholding of removal.
Concurring, Judge Paez wrote that in addition to ignoring evidence that Rodriguez was targeted on account of her feminist political opinion, the Board also ignored extensive record evidence from a leading authority on domestic violence that directly rejected the Board’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a “personal relationship.”
CONCURRING OPINION:
PAEZ, Circuit Judge, concurring:
I join Judge Graber’s fine opinion in full. I write separately on a point the court’s opinion does not address. In rejecting Ms. Rodriguez Tornes’s political opinion claim, the BIA suggests that the presence of a “personal relationship” motivation for intimate partner violence implies that there were no intersectional or additional bases for the violence Ms. Rodriguez Tornes experienced. The court’s opinion thoroughly documents the record evidence, which the BIA ignored, demonstrating how Ms. Rodriguez Tornes was targeted for violence by her domestic partners on account of her feminist political opinion. The BIA, however, also ignored extensive record evidence from expert witness Prof. Nancy Lemon, a leading authority on domestic violence, that directly rejects the BIA’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a “personal relationship.”
In contrast to the BIA’s “personal relationship” view of domestic violence,1 Prof. Lemon draws on more than three
1 The BIA cites Matter of A-B-, 27 I&N Dec. 316, 338–39 (A.G. 2018) as the basis for its assumption.
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decades of research, writing, legal representation, and lawmaking to explain that “the socially or culturally constructed and defined identities, roles and responsibilities that are assigned to women, as distinct from those assigned to men, are the root of domestic violence.” She analyzes data from the U.S. Department of Justice, Bureau of Justice Statistics and studies from leading medical and social science publications to highlight “compelling evidence that heterosexual domestic violence is, in significant part, motivated by bias against women and the belief that men are entitled to beat and control women.” Prof. Lemon summarizes cross-cultural studies within the United States and internationally that demonstrate “a correlation between patriarchal norms that support male dominance and violence against women by intimate partners.”
In her report, which the IJ referenced in her decision, Prof. Lemon provides a lengthy examination of social science research exploring how particular behaviors exhibited by male abusers—including emotional abuse, sexual abuse, marital rape, economic abuse, blaming, guilt and using children—are each tied to social belief systems that “men are entitled to dominate and control women because the male sex is considered superior” and operate to “exploit the traditional socially constructed roles, identities, duties and status of women in intimate relationships.” In describing the legal, social, cultural, and political structures that lay the foundations for intimate partner violence, Prof. Lemon explains that “domestic violence is not typically caused by behaviors unique to the victim or by inter-personal dynamics unique to the relationship between the abuser and the abused. . . . Rather, heterosexual male batterers have certain expectations of intimate relationships with regard to which partner will control the relationship and how control will be
ROGRIGUEZ TORNES V. GARLAND 23
exercised. These expectations are premised on a dogmatic adherence to male privilege and rigid, distinct, and unequal roles for women and men.”
The record evidence of Prof. Lemon’s rigorous expert analysis undermines the BIA’s unsubstantiated premise that, unless otherwise shown, domestic violence is a purely private matter. The BIA makes no mention of the record evidence of Prof. Lemon’s expert analysis, let alone the decades of publicly available social science research and public policy that all reject the BIA’s outdated view of domestic violence as a quirk within a “personal relationship.”2 Thus, the BIA’s assertion that domestic violence is presumptively a private matter is not supported by substantial evidence.
2 See e.g., Nina Rabin, At the Border Between Public and Private: U.S. Immigration Policy for Victims of Domestic Violence, 7 Law & Ethics Hum. Rts. 109, 111–12 (2013) (“Fifty years ago, domestic violence was widely understood to be a private matter, and the extent to which it was appropriate for the state to intervene was highly contested. Now, domestic violence shelters, state laws and policies specific to the prosecution of domestic violence crimes, and significant state and federal government support for efforts to eradicate domestic violence are all commonplace. Crucial to bringing about this shift in the state’s role vis-à- vis domestic violence victims has been the acknowledgment of the structural roots of domestic violence. When conceived of as a problem tied to gender subordination and pervasive inequality rather than interpersonal conflict, the violence at issue demands a state response.”); Violence Against Women: Victims of the System, 102d Cong., 63 (1991); Elizabeth M. Schneider, The Violence of Privacy, 23 Conn. L. Rev. 973 (1991); Reva B. Siegel, “The Rule of Love”: Wife Beating As Prerogative and Privacy, 105 Yale L.J. 2117 (1996); Leslye E. Orloff & Janice v. Kaguyutan, Offering A Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses, 10 Am. U. J. Gender Soc. Pol’y & L. 95 (2001); see generally Am. Br. of the National Immigrant Women’s Advocacy Project.
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Congrats to all counsel involved for the “good guys.”
Another completely disastrous performance by the BIA!
Bias, sloppiness, legal errors galore, misuse of the appeals process, dissing experts, ignoring evidence, lousy analysis, an ethically questionable remand attempt by OIL, almost every aspect of the unmitigated professional disaster at the BIA and the failed DOJ is on display in this truly terrible parody of justice. These fundamental defects are what has helped generate incredible backlogs that EOIR and DOJ are attempting to cover up and shift blame to the individuals they systematically malign.
This disgraceful muck heap 🤮 won’t be cleaned up by bogus “case processing requirements!” What this system needs is expertise, fairness, due process, quality control, common sense, and human decency — in huge doses! A complete professional makeover!
Among the many good things about the Circuit decision is that it basically limited the impact of the atrociously wrong Sessions “precedent” in Matter of A-B-, even while overlooking the obvious ethical errors in his maliciously biased dicta and the glaring overarching constitutional problem in his improper interference and participation in the quasi-judicial process. This should be Exhibit 1 in why this process needs to be removed from the DOJ, placed in an independent Article I Court, and a new, qualified Appellate Division with real judges — capable of fairly and efficiently adjudicating asylum cases — selected to replace the BIA.
One particularly cruel, senseless, and inane aspect of the BIA’s attempt to “snuff” the respondent’s asylum application: Because of the essentially uncontested CAT grant, she was going to be allowed to remain in the U.S. anyway! So, this was all about illegally depriving an abused refugee woman of color of her ability to get a green card, become eligible for citizenship, and obtain full legal and political rights in our society!
Compare the time and effort expended by the BIA in trying to deprive this woman of her human rights with the carelessness and sloppiness of their legal analysis. That’s what the racist-driven “any reason to deny” culture created by Sessions, Barr, and their toadies at EOIR does to our justice system!
Imagine how much different the “retail level” of American justice would look with real judges and professional administrators, committed to due process, fundamental fairness, and best practices, in charge! Amazingly, that’s what the “EOIR Vision” once was, before the forces of darkness, ignorance, and bias took over the system.
Think of how different the skewed asylum statistics would look if we honored, rather than mocked, our legal obligations to asylum seekers. Think of how many more individuals could fairly and efficiently be welcomed into our country at our borders and abroad in a well functioning system, staffed with professionals, that adhered to the rule of law. Think of how a better, more honest, and more professional Immigration Court could provide positive guidance on how to grant needed protection, rather than gushing forth an endless stream of bogus “how to deny” precedents based on racial and gender bias and specious reasoning.
Professor Nancy Lemon Hastings Law Photo: law.hastings.comProfessor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings LawBlaine Bookey Legal Director Center for Gender & Refugee Studies @ Hastings Law Photo: CGRS website
Obviously, experts like Professor Nancy Lemon, Professor Karen Musalo, and her colleague Blaine Bookey are the types of individuals who should be Appellate Judges at the BIA. The current BIA’s glaring lack of professional competence and its unconscionable abuse of vulnerable asylum seekers, particularly the institutional ignorance and shameless misogyny with which claims by women refugees are treated, has to be one of the darkest and most inexcusable chapters in modern American legal history!
Food for for thought:
How would an unrepresented individual, particularly one in detention or stuck on a street corner in Mexico, be able to prepare, document, and present a case like this to a biased court and then appeal successfully to the Circuit?
How is this system constitutional in any way, shape, or form?
How might the massive investment of resources, time, effort, and expertise in vindicating the legal and human rights of one individual in a broken system be redeployed to promote systemic fairness and efficiency in a court system that actually complied with constitutional due process?
And, we shouldn’t forget that the Biden Administration is still illegally killing off asylum seekers at the border with no due process at all! Cowardly inflicting human misery on the most vulnerable in violation of our Constitution, our laws, and our international obligations has become our “new national pastime!”
We might be averting our eyes from the slaughter now, but history will document and remember what the world’s richest nation did to our fellow humans seeking protection in their hour of direst need! No wonder we must dehumanize “the other” to go on with our daily lives. No wonder that racial and social justice remain elusive, unfulfilled concepts, throughout our society, in today’s “What’s in it for me” atmosphere promoted by many of our politicos!
