🏴‍☠️☠️⚰️⚖️ MAKING THEIR CASE: The Competition For “America’s Most Dangerous Court” 🏆🤮 Is Fierce, But The Far-Right Scofflaw Fifth Circuit Is Coming On Strong! — The Righty Supremes Fight Back With Gross Abuses Of “Shadow Docket” — Is There Another “Top Contender” Out There Operating Below The Radar Screen?

These two op-eds make compelling cases for the 5th Circuit rivaling the Supremes as the most scofflaw, out of control, and dangerous court in America! But, hey, is there a “dark horse” in this righty “race to the bottom?” 🐴 (Curiously enough, “owned” and “trained” by Biden-Garland Stables!)

First, let’s hear from my friend, NDPA Stalwart, Houston Law Immigration Clinic Director, Professor Geoffrey Hoffman:

CAT a “dead letter” in the Fifth Circuit? I respectfully dissent

By Geoffrey A. Hoffman

This week a panel of the Fifth Circuit issued Tabora Gutierrez v. Garland, interpreting the Convention Against Torture’s (CAT’s) state action requirement so restrictively that it led the dissenting judge to call CAT a virtual “dead letter” in most cases (in the Fifth Circuit, at least).

In this piece, I want to consider this dire prognostication and also think about what it may mean for future practice – at least for those of us in the Fifth Circuit.

Two panel members found that petitioner failed a key requirement for relief: that the government in Honduras “consented or acquiesced” to the torture. In dissent, Judge W. Eugene Davis remarked, “I agree with the IJ, the BIA, and the majority that [petitioner] will likely be tortured by MS-13 gang members. . .[but] I read the record to compel a conclusion that the torture will be with the acquiescence of a public official.” According to Judge Davis, the majority raised the bar so high regarding this requirement under CAT that “for most if not all” people CAT will be out of reach, if they are from countries with (merely) corrupt policy or police without the will or courage to protect them from brutal gangs. While I agree with Judge Davis, the fact is CAT need not be a “dead letter” in the Fifth Circuit.

I was moved to comment on another split panel decision previously in the Fifth Circuit in Inestroza-Antonelli v. Barr, see my prior post here, and I am similarly moved to write about this present decision.

Significantly, the majority here carefully acknowledges up front that the BIA and IJ below found petitioner “likely to be tortured or killed” if returned to Honduras, and even catalogued the horrible injuries he had already suffered, mentioning “gruesome photos” that are part of the record in the case.

Because I think the majority erred, and would agree with most of what the dissenting judge says, let me address three issues where I think the majority got it wrong: (1) what it means for a record to “compel” a different conclusion on appeal; (2) what it means for a government to consent or acquiesce to torture and (3) the notion that Petitioner waived his argument about the correct standard of review merely by failing to bring it up in a motion to reconsider.

I address all three of these points below.

First, the majority importantly conceded in its opinion that the police “failed to investigate” petitioner’s injuries. However, because the Board and IJ interpreted these “failures” of the police as “better explained” by the fact the petitioner “was unable to disclose the specific identity of any of his attackers” this showed the police did not “willfully ignore” the attacks. The majority reasoned that the “evidence” did not “compel” a contrary conclusion and therefore the IJ’s findings, adopted by the BIA, were considered “conclusive.”

I am struck here by the notion that just because the BIA and IJ had inserted their own explanations for the unrebutted record evidence showing lack of any police action that this must have meant (according to the majority) that the appellate court was constrained to accept this explanation and would not disturb the lower tribunal’s interpretation of the evidence.

Such a reading of the word “compel” means that judges can have an “out” anytime they want to rubber stamp any decision of the Board, all they have to do is say the explanation offered characterizing the evidence in one way or another was good enough and must not be disturbed. But this is a very troubling proposition.

Take, for example, the present case where the supposition on the part of the BIA and IJ was that the petitioner was somehow at fault for not being able to identify his attackers by name. Think about that for a minute…Police are not acquiescing and not at fault and should not be held to have “turned a blind eye” because the victim was unable to identify his attackers.

But this does not make sense.

Such a blame-the-victim mentality goes against the motivation and underlying rationale behind other federal types of relief immigrants have available, for example, U visas for crime victims, VAWA, T visas, etc., premised in many cases on the victim’s cooperation with law enforcement and their investigation. Just because a victim does not know the exact identities of their attackers does not disqualify them from relief. Would that be a reasonable interpretation for example of the U visa statute and attendant regulations?

In addition, let’s consider the use of the “compel” standard for a minute and where it came from exactly. This standard, as acknowledged by the majority, comes from a previous case, Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006), among other cases. Chen in turn cites 8 USC 1252(b)(4)(B) and emanates from the Supreme Court’s famous decision, INS v. Elias-Zacarias, 502 U.S. 478 (1992), authored by Justice Scalia.

Chen was a case about a Chinese petitioner who converted to Christianity after entry into the U.S. and so her applications did not rely on past persecution but a well-founded fear of future persecution based on religion. The IJ in the former case found that there were “many Christians in China” and that Chen’s claims of future persecution were allegedly “highly speculative.” The facts of Chen and the current case relating to police inaction in Honduras could not be further apart. Moreover, the Fifth Circuit in Chen was not considering past persecution, as here, but the more difficult to prove “future persecution” and well-founded fear standard.

Similarly, Justice Scalia in Elias-Zacarias was concerned about proof supporting a political opinion claim. In that case, the Supreme Court found that the petitioner could not produce evidence “so compelling” that no reasonable factfinder could fail to find the requisite fear of persecution on account of political opinion. The “so compelling” language has been used by many courts to deny asylum on many other grounds throughout the past decades and has not been limited to political opinion claims.

But the reliance in the present case for the “compel” standard on the statute in question, 8 USC 1252(b) here is misguided. The statute states in pertinent part as follows: “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary . . . .” But the “consent and acquiescence” determination under CAT is not a determination of “administrative facts” but is certainly a mixed question of law and fact. As such, the entire structure of the “compel” standard should not have been applied but instead de novo review applied.

And this brings me to the practice pointer that this case so unfortunately stands for. Although on appeal before the circuit court the issue of standard of review was raised by petitioner, it was rejected by the majority on the theory that he had to have filed a “motion to reconsider” before the Board to preserve the issue for appellate review.

This waiver argument has always seemed to me a weak and tenuous one.

For example, what if the petitioner (i.e., the respondent before the BIA) argued in his brief to the Board that the correct standard of review was de novo due to the mixed question raised by a very complicated “consent or acquiescence” determination under CAT, and courts have so held, but the BIA decided to just rubber stamp the IJ and refused to overturn the IJ’s finding based on clear error. Wouldn’t that have preserved the issue? Why is there a need for a litigant to then file a motion to reconsider after the fact to preserve an issue which had already been preserved? To make matters worse it appears Mr. Tobora Gutierrez appeared pro se, see page 3 of the Fifth Circuit majority decision, at least initially. The decision does not reveal if he had appellate counsel before the BIA. But if he did not it would be an especially onerous requirement to impose an “after the fact” requirement that a litigant must file a “motion to reconsider” to preserve an issue for appellate review, especially if he is unrepresented.

All of that said, the practice take-away here is: (1) everyone must file a very carefully drafted and thorough motion to reconsider on all issues that could be in any way (mis-)interpreted to be subject to waiver so you preserve all issues for review before the circuit courts; and (2) everyone should read Judge Davis’ cogent and reasoned dissenting opinion, which hopefully will be followed instead of the majority’s strained application of the “compel” standard. Judge Davis was right: the evidence does compel a different outcome. Judge Davis does a wonderful job also of distinguishing the prior case law in this area and showing how Mr. Tobora Gutierrez’s case is fundamentally different. As he says, “if the egregious facts of this case are not sufficient to support a finding of public-official acquiescence, CAT relief will be a dead-letter to most if not all individuals who live in countries where the police are corrupt or simply do not have the will or courage to protect them from brutal gang attacks.”

Judge Davis is right, this is a most troubling decision but not just for the reason he provides. It is troubling for the further reason that the majority applies the wrong legal standard here, the “compels” standard versus a de novo review. The majority also leaves the door open for “deferred action,” for this sympathetic and horrendous case, although it declines to recommend it. Most importantly, it also leaves the door open for de novo review, in future cases, at least where those litigants are perceived to have preserved the issue. Litigants can do this by filing a motion to reconsider with the BIA, then filing (another, second) petition for review when the motion to reconsider is denied, and then (following the procedure mandated by section 1252) consolidating the two cases.

(Institution for identification only)

Geoffrey Hoffman

Clinical Professor, UHLC Immigration Clinic Director

Let’s not forget that Garland’s DOJ defended this grotesque miscarriage of justice. In a grim way, Geoffrey’s “practical scholarship” ties in nicely with Ruth Marcus’s recent op-ed in WashPost on the righto-wacko 5th Circuit’s dangerous assault on American justice:

Washington Post Columnist Ruth Marcus, moderates a panel discussion about chronic poverty with Education Secretary John B. King (blue tie) and Agriculture Secretary Tom Vilsack (striped tie), during the National Association of Counties (NACo), at the Washington Marriott Wardman Park, in Washington, DC, on Tuesday, Feb. 23, 2016. U.S. Department of Agriculture photo by Lance Cheung.

https://www.washingtonpost.com/opinions/2021/08/31/5th-circuit-is-staking-out-claim-be-americas-most-dangerous-court/

Opinion: The 5th Circuit is staking out a claim to be America’s most dangerous court

Opinion by Ruth Marcus

August 31 at 6:37 PM ET

The Supreme Court is, no doubt, the nation’s most powerful court. But the 5th Circuit, the federal appeals court that covers Louisiana, Mississippi and Texas, is staking out a claim to be the most dangerous — the least wedded to respecting precedent or following an orderly judicial process.

The 5th is arguably the most conservative among the country’s dozen appeals courts. It inclined in that direction even before President Donald Trump managed to install six nominees. And they constitute quite a bunch: Stuart Kyle Duncan, who said the Supreme Court’s 2015 ruling establishing a right to same-sex marriage “imperils civic peace” and “raises a question about the legitimacy of the court.” Cory Wilson, who tweeted about Hillary Clinton using the hashtag #CrookedHillary, called the Affordable Care Act “illegitimate” and said he supported overturning Roe v. Wade. James C. Ho, who issued a concurring opinion lamenting the “moral tragedy of abortion.”

How conservative is the court, where 12 of 17 active judges were named by Republican presidents? “As conservative a federal appeals court as any of us have seen in our lifetimes,” says Stephen I. Vladeck, a law professor at the University of Texas, noting that even as the circuit’s conservatives tend toward the extreme end of the spectrum, its liberals aren’t all that liberal.

One measure: During each of the last two Supreme Court terms, with conservative justices firmly in the majority, the high court has reviewed seven cases from the 5th Circuit. It reversed 6 of 7 decisions in the 2019-2020 term and 5 of 7 in 2020-2021.

These included the appeals courts’ rulings striking down the Affordable Care Act and upholding the constitutionality of a Louisiana abortion law, identical to a Texas statute the justices had tossed out several years earlier — another 5th Circuit special reversed by the high court. If you thought the appeals court judges would have learned their lesson the first time, you don’t know the 5th Circuit.

Texas can ban the abortion procedure most commonly used to end second-trimester pregnancies, a federal appeals court ruled on Aug. 18. (Reuters)

The circuit’s latest shenanigans involve, unsurprisingly, abortion, and Texas’s latest attempt to eviscerate abortion rights. This Texas law, which goes into effect Wednesday, is both blatantly unconstitutional (it purports to prohibit abortion once there is a detectable fetal heartbeat, around six weeks into pregnancy) and an audacious effort to evade judicial review (it leaves enforcement of the ban up to private vigilantes, not state officials.)

In this effort to end-run and effectively overturn Roe v. Wade, the 5th Circuit has already proved itself an eager co-conspirator. Texas abortion clinics filed suit in federal court challenging the law and seeking to block it from taking effect. A federal judge had scheduled a hearing on whether to grant such an injunction.

But on Friday a panel of the 5th Circuit — two Trump judges and one Reagan appointee — issued an extraordinary order preventing the district judge from going ahead with the hearing, thus letting the law take effect in the interim — all this even as the appeals court refused to speed up its consideration of the case. In a sign of their desperation, the clinics appealed that action to the Supreme Court, not exactly a friendly venue these days for abortion rights.

. . . .

Read the rest of Ruth’s op-ed at the link.

But, the right-controlled Supremes aren’t going quietly into the night in this competition. The right to a reasoned decision from a fair and impartial decision-maker is fundamental to Constitutional due process — except at the Supremes. The righty majority now employs the “shadow docket” to avoid explanation and accountability for some of it’s most outrageously scofflaw decisions! Many of these have hurt or even killed migrants. David Leonhardt @ NY Times explains:

David Leonhardt — Davide Leonhardt
Journalist
NY Times
PHOTO: Wikipedia

Rulings without explanations

The Supreme Court opinion allowing Texas to ban nearly all abortions was different from most major rulings by the court.

This one came out shortly before midnight on Wednesday. It consisted of a single paragraph, not signed by the justices who voted for it and lacking the usual detailed explanation of their reasoning. And there had been no oral arguments, during which opposing lawyers could have made their cases and answered questions from the justices.

Instead, the opinion was part of something that has become known as “the shadow docket.” In the shadow docket, the court makes decisions quickly, without the usual written briefings, oral arguments or signed opinions. In recent years, the shadow docket has become a much larger part of the Supreme Court’s work.

Shadow-docket rulings have shaped policy on voting rights, climate change, birth control, Covid-19 restrictions and more. Last month, the justices issued shadow decisions forcing the Biden administration to end its eviction moratorium and to reinstate a Trump administration immigration policy. “The cases affect us at least as much as high-profile cases we devote so much attention to,” Stephen Vladeck, a University of Texas law professor, told me.

Shadow-docket cases are frequently those with urgency — such as a voting case that must be decided in the final weeks before an election. As a result, the justices don’t always have time to solicit briefs, hold oral arguments and spend months grappling with their decision. Doing so can risk irreparable harm to one side in the case.

For these reasons, nobody questions the need for the court to issue some expedited, bare-bones rulings. But many legal experts are worried about how big the shadow docket has grown, including in cases that the Supreme Court could have decided in a more traditional way.

“Shadow docket orders were once a tool the court used to dispense with unremarkable and legally unambiguous matters,” Moira Donegan wrote in The Guardian. “In recent years the court has largely dispensed with any meaningful application of the irreparable harm standard.”

Why the shadow docket has grown

Why have the justices expanded the shadow docket?

In part, it is a response to a newfound willingness by lower courts to issue decisions that apply to the entire country, as my colleague Charlie Savage explains. By acting quickly, the Supreme Court can retain its dominant role.

But there is also a political angle. Shadow-docket cases can let the court act quickly and also shield individual justices from criticism: In the latest abortion case, there is no signed opinion for legal scholars to pick apart, and no single justice is personally associated with the virtual end of legal abortion in Texas. The only reason that the public knows the precise vote — 5 to 4 — is that the four justices in the minority each chose to release a signed dissent.

Critics argue that judges in a democracy owe the public more transparency. “This idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about,” Nicholas Stephanopoulos, a Harvard law professor, has said. “If courts don’t have to defend their decisions, then they’re just acts of will, of power.”

During a House hearing on the shadow docket in February, members of both parties criticized its growth. “Knowing why the justices selected certain cases, how each of them voted, and their reasoning is indispensable to the public’s trust in the court’s integrity,” Representative Henry Johnson Jr., a Georgia Democrat, said. Representative Louie Gohmert, a Texas Republican, said, “I am a big fan of judges and justices making clear who’s making the decision, and I would welcome reforms that required that.”

The shadow docket also leaves lower-court judges unsure about what exactly the Supreme Court has decided and how to decide similar cases they later hear. “Because the lower-court judges don’t know why the Supreme Court does what it does, they sometimes divide sharply when forced to interpret the court’s nonpronouncements,” writes William Baude, a University of Chicago law professor and former clerk for Chief Justice John Roberts. Baude coined the term “shadow docket.”

Six vs. three

The court’s six Republican-appointed justices are driving the growth of the shadow docket, and it is consistent with their overall approach to the law. They are often (though not always) willing to be aggressive, overturning longstanding precedents, in campaign finance, election law, business regulation and other areas. The shadow docket expands their ability to shape American society.

The three Democratic-appointed justices, for their part, have grown frustrated by the trend. In her dissent this week, Justice Elena Kagan wrote, “The majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.” In an interview with my colleague Adam Liptak last week, Justice Stephen Breyer said: “I can’t say never decide a shadow-docket thing. … But be careful.”

Roberts also evidently disagrees with the use of the shadow docket in the Texas abortion case. In his dissent, joining the three liberal justices, he said the court could instead have blocked the Texas law while it made its way through the courts. That the court chose another path means that abortion is now all but illegal in the nation’s second-largest state.

The justices are likely to settle the question in a more lasting way next year. They will hear oral arguments this fall in a Mississippi abortion case — the more traditional kind, outside the shadows — and a decision is likely by June.

Read more from David in “The Morning” e-mail from the NYT.

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

Abrogating a treaty, intellectual dishonesty, neutering Federal statutes and regulations, scoffing at Constitutional due process, disregarding decency and human life (at least “life after birth”), AND illegally sending another human back to be tortured to death is indeed a “hard act to follow” and makes the 5th a serious contender. But, remember where this “opportunity to dump on migrants” came from!

Immigration practitioners will tell you never to underestimate the sloppiness, lack of expertise, irresponsibility, disdain for due process, and disregard for human lives that has become institutionalized at Garland’s “Miller Lite” captive appeals “court,” the BIA! And, like the Supremes and unlike the 5th Circuit, the BIA has nationwide jurisdiction and sets national precedents. But, unlike the Supremes, who decide fewer than 100 cases in an average year, the BIA assembly line charms out 20,000 to 30,000 cases annually through its defective processes, and it’s lousy, one-sided, anti-immigrant precedents and reactionary guidance that destroy thousands of lives and futures in Immigration Court every day!

So, when it comes to worst court of today, don’t count out the BIA!

As described by Charlotte Klein and former Acting SG Neal Kaytal @ Vanity Fair, the extremist right GOP is now fulfilling it’s long-promised “gruesome blueprint” to overthrow liberal democracy and perpetuate far-right, minority, authoritarian, in many ways neo-Nazi rule in America. https://www.vanityfair.com/news/2021/09/gruesome-blueprint-texas-assault-on-abortion-rights-could-have-snowball-effect

The “Commanding Generals” of this effort are unprincipled, far-right GOP jurists. Their initial targeted victims are, of course, the usual vulnerable suspects: migrants, asylum seekers, women, voters of color, transgender kids, the poor, union members, etc. But, eventually, all of us who reman true to liberal democratic values will be targeted for some kind of punishment. Immigration “led the way” in the “Dred Scottfication of the other” by the Supremes at the behest of the Trump kakistocracy. But, don’t think that’s where this heinous resuscitation of one of the worst cases in American jurisprudence will end!

Meanwhile, this latest phase of the assault has unleashed the usual Dem arsenal of feckless weaponry, including:

Statements of outrage untied to realistic possibilities;
Largely meaningless public demonstrations that are “media events” and not much else;
Idle threats of reprisals;
A barrage of op-eds decrying that the fringe radical right and their relatively unpopular agenda has once again outflanked liberals who represent the views and values of the majority;
Statements of fact that have no material effect (public support for the complete elimination of abortion, al la Texas, the 5th, and the Supremes holds steady at 8%, while a large majority of Americans favor abortion in some form or another — explain how that has made a difference — also, does anybody really think that these right wingers give a fig that many women will die from illegal abortions and others will be saddled with unwanted children — the only part of human life that creates much compassion or empathy for this righty gang is that which occurs prior to birth);
Appeals to precedent, fairness, decency, reasonableness, confirmation promises, and respect for the law addressed to a party and its jurists who value none of these things if they get in the way of their authoritarian agenda.

But, Dems, here’s a better idea! For once, why not try a different approach and actually work within what you DO control and CAN change? Something that will showcase the positive attributes of honest, expert, progressive judging while developing best practices and saving lots of lives in the process. What do you have to lose, Dems? Can actually doing something to combat right-wing control of the judiciary rather than just impotently raging against it produce a worse result than you have already achieved — even when controlling the Executive, House, and Senate?

There is not much in the immediate future that Biden and the Dems can (and are willing to) do to change the composition and tenor of the Supremes and the 5th Circuit. But Biden and Garland have complete control over the “Miller Lite” BIA and the Immigration Courts!

A new, well-qualified, BIA comprised of progressive expert judges unswervingly committed to scholarship, quality, due process, respect for migrants and their attorneys, and correct results could (and should) be installed by now. But, disgracefully, it isn’t! Progressives need to hold Biden’s and Garland’s feet to the fire until they create the positive change they promised, but have not delivered!

Then, once a new BIA is in place, go to work on re-competing all Immigration Judge jobs on a merit basis, incorporating key progressive values and real-life experiences, and also involving input from practitioners and outside experts in the area. Create a better progressive Federal Immigration Judiciary and let it lead the way to restoring due process, best practices, efficiency, humanity, fundamental fairness, and integrity to our broken immigration system!

Humanity is suffering! Garland must pull the plug 🔌 on the “BIA Clown Show” 🤡 before it kills ⚰️ anyone else! Pull the BIA from the “Most Dangerous Court In America Competition” before they can “win” it. A “win” for the BIA would certainly be a “loss” for America!

🇺🇸Due Process Forever! Bad Judges, Never!

PWS

09-03-21

⚖️🤮👨🏻‍⚖️☠️ SUPREMELY BAD! — There’s a “problem with late-night emergency orders written as haikus on Post-it notes stuck to the front doors of the Supreme Court . . . !” — The return of “Dred Scottification” & covering for naked White Nationalist policies by our highest Court throws the entire U.S. justice system into chaos!

Grim Reaper — A robed GOP Justice, carrying a copy of Dred Scott and the tool of right-wing extremism, heads for secret meeting to take action against brown-skinned refugees!
Image: Hernan Fednan, Creative Commons License

Dahlia Lithwick
Supreme Court Reporter
Slate
Wikimedia Commons — Public Domain

https://apple.news/ACG8I3-YvTh2RWP68SwTi2A

The Supreme Court Has Let a Lone Trump Judge Take Over Biden’s Foreign Policy

The six conservative justices blessed a rogue decision reviving Trump’s odious attack on refugees.

by Dahlia Lithwick and Mark Joseph Stern

AUGUST 25 2021 8:47 PM

On Tuesday night, the Supreme Court issued one of the most radical orders in recent memory—and it did it in three sentences, unsigned. By a 6–3 vote, the conservative justices attacked the president’s authority to conduct foreign policy (a principle it had vehemently preserved throughout the Trump presidency) by compelling the Biden administration to revive Donald Trump’s “Remain in Mexico” policy, which required all asylum-seekers who arrive at the Southern border—including many fleeing violence in Central America—to wait for their U.S. immigration hearings in Mexico. This 2019 policy, the product of extensive negotiations between the Trump administration and the Mexican government, has been suspended for about 17 months. On Aug. 13, however, a single federal judge issued a nationwide injunction ordering the government to reinstate the long-dormant program immediately. Late Tuesday, the Supreme Court blessed this unprecedented hostile takeover of the executive’s immigration policies without bothering to explain how or why.

The implications of Tuesday’s decision are profoundly disturbing. . . .

Perhaps the most perverse aspect of the litigation over “Remain in Mexico”—also known as the Migrant Protection Protocols, or MPP—is that the policy itself is illegal. The Immigration and Nationality Act does allow the government to return a narrow class of migrants to “contiguous territory” while they await hearings. But, as a federal appeals court explained in 2020, the law does not allow the government to send the vast majority of asylum-seekers back to Mexico to await hearings. Doing so violates the United States’ treaty obligations as implemented in the INA, which bar the government from sending refugees back to countries where they fear persecution.

. . . .

As we have suggested in the recent past, the problem with late-night emergency orders written as haikus on Post-it notes stuck to the front doors of the Supreme Court isn’t just that the parties must scramble, without guidance, to discern what it is the court wants them to do. In this case, perhaps tens of thousands of desperate asylum-seekers and their families have absolutely no clue as to what the law is now and why. We have no idea what even constitutes an emergency, or which parties have standing, or what the legal reasoning might be.

Not very long ago, the high court used its shadow docket to spank what it deemed runaway district court judges arrogating power to set immigration policy in violation of Trump’s orders. Now, the same shadow docket is being used to hand federal immigration powers to runaway district court judges, with no rule or principle set forth beyond the fact that Biden should just lose, because they say so.

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

Under Roberts, the Supremes are looking more and more like the deadly EOIR Star Chambers/Clown Courts!☠️⚰️🤡 Shamefully, the “Roberts Six” have “revived” the “essence” of perhaps the worst Supremes’ decision in U.S. history, Dred Scott, and gotten away with applying it to people of color in the 21st Century!

They have elevated utter BS and fabricated “injuries” manufactured in bad faith by vile right wing GOP State AGs over the human rights, lives, and human dignity of refugees seeking asylum! In particular, they have targeted bown-skinned women, children, and families legally seeking refuge! This is progress? Seems like the definition of “judicial cowardice” to me!

What kind of “crimes against humanity” are the “GOP 6” complicit in? Try refugees “kidnapped, raped and even killed as a direct result of this policy. They came to our doorstep with a belief in America — and our government sent them into danger.” https://www.latimes.com/politics/story/2021-08-24/supreme-court-biden-ending-trumps-remain-in-mexico-policy?utm_id=36127&sfmc_id=2413253

Meanwhile Garland inexcusably has failed to reform his Immigration Courts by replacing unqualified Immigration Judges and BIA Appellate Judges selected by his predecessors under highly questionable procedures with well-qualified progressive judges who are experts in due process and human rights.

Building a progressive Immigration Judiciary at EOIR is absolutely necessary to developing the legal skills to hold the anti-American far right at bay and eventually creating a better Article III Judiciary that will actually stand up for due process and equal justice for all persons in America. Something the “Roberts 6” have scandalously and spinelessly failed to do!🤮👎🏽

Better Judges for better America!

🇺🇸Due Process Forever!

PWS

08-26-21

🤮👎🏽🏴‍☠️ SUPREMES’ GOP MAJORITY STUFFS BIDEN, TAKES OVER BORDER ENFORCEMENT, REINSTATES IMMORAL, ILLEGAL ASSAULT ON REFUGEES OF COLOR — MPP WILL CONTINUE TO VIOLATE HUMAN RIGHTS, CAUSE REFUGEE SUFFERING, DEATHS, AT BORDER & IN MEXICO!

By Robert Barnes @ WashPost

LToday at 9:28 p.m. EDT

The Supreme Court on Tuesday said the Biden administration must comply with a lower court’s ruling to reinstate President Donald Trump’s policy that required many asylum seekers to wait outside the United States for their cases to be decided.

The administration had asked the court to put on hold a federal judge’s order that the “Remain in Mexico” policy known as Migrant Protection Protocols (MPP) had to be immediately reimplemented. U.S. District Judge Matthew Kacsmaryk ruled earlier this month that the Biden administration did not provide an adequate reason for getting rid of the policy and that its procedures regarding asylum seekers who enter the country were unlawful.

Biden issues new immigration orders, while signaling cautious approach

Over the objections of the three liberal justices, the court’s conservative majority agreed that the administration had not done enough to justify changing the policy.

The administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious,” the court said in a short, unsigned order. In such emergency matters, the court often does not elaborate on its reasoning.

It said Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan would have granted the administration’s request. The three also gave no reason.

The action could be an ominous sign for the new administration. The court is considering a request that it dissolve the pandemic-related evictions moratorium implemented by the Centers for Disease Control and Prevention, about which the court’s most conservative justices have already expressed skepticism.

The court often showed deference to the Trump administration in such emergency matters, including when the MPP was first implemented.

. . . .

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

Read Robert’s full article at the link.

“Floaters” — “Floaters — How The World’s Richest Country Responds To Asylum Seekers” — Supremes’ GOP majority makes it clear that it considers asylum seekers of color as something less than human, whose rights and lives simply don’t matter! They are expendable, according to elite ivory tower righty jurists who don’t even give asylees lives a thought and condemn them without rationale. Not their kids, not anyone they can relate to.
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)

Not too surprising, given the Roberts Court’s fairly consistent disregard for human rights, the rule of law, the Due Process Clause of the Constitution, and ill-concealed contempt for racial justice and people of color! They had already gone “belly up” on MPP after it was properly blocked by lower Federal Courts during the Trump regime.

It’s going to be a long four years for American democracy, human rights, and individuals of color if the Dems can’t get it together, eliminate the filibuster, and enact some legislation while they are still in control of all three branches. But, it’s the Dems, so don’t count on much besides some hand-wringing and feckless rhetoric.

And to be fair, the Biden Administration’s continued lawless use of Title 42 to suspend the rule of law for many at the border compliments both the Trump regime’s xenophobic policies and the Supremes’ dissing of people of color. Dred Scott is still alive and kicking in 21st Century America, even as our nation grows more diverse.

🇺🇸Due Process Forever!

PWS

08-24-21

ADDENDUM:

As recently posted by Dean Kevin Johnson on ImmigrationProf Blog:

I received the following statement on the ruling by e-mail from Kate Melloy Goettel, Legal Director of Litigation at the American Immigration Council:

“Thousands of people have suffered the horrible consequences of the Migrant Protection Protocols. The Supreme Court has now upheld the Texas court’s decision and, instead of keeping MPP a stain in the history books, it will continue to be a present-day disaster.

“Forcing vulnerable families and children to wait in provisional camps in Mexico puts their lives at risk, while also making it nearly impossible for them to access the asylum process. The Biden administration can and must work to terminate the policy again immediately. Rather than turning away people fleeing harm, we should ensure people have a fair day in court.”

”Dred Scottification” at its worst.

Better Judges for a Better America!

DPF!

PWS

08-25-21

☠️⚰️👎🏽BIDEN ADMINISTRATION EMBRACES “NEW AMERICAN GULAG” — SUPREMES LIKELY TO HELP THEM OUT!🤮

https://lawprofessors.typepad.com/immigration/2021/08/supreme-court-to-review-bond-hearings-for-detained-immigrants.html

Dean Kevin Johnson posts on ImmigrationProf Blog:

Monday, August 23, 2021

Supreme Court To Review Bond Hearings For Detained Immigrants

By Immigration Prof

Share

The Supreme Court has decided a number of immigrant detention cases in recent years. Next Term brings another case. Alyssa Aquino for Law360 reports that the Court agreed today to review a Ninth Circuit decision that required bond hearings for immigrants who have been detained for more than six months with final removal orders. A split ruled that the Immigration and Nationality Act requires the federal government to hold bond hearings for detained migrants, and that the government bears the burden of proving that detainees are a flight risk or public safety threat.

The consolidated cases are Garland. v. Gonzalez and Tae D. Johnson v. Guzman Chavez. Amy Howe on SCOTUSBlog offers some background on the cases her.

KJ

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

Notice any difference between the Biden-Harris campaign rhetoric and actual performance once elected?

Never know when a “due process free zone” where individuals not charged with crimes can be detained forever without individualized bond determinations will be a handy hammer to have in your toolbox!

And, don’t forget those huge profits being raked in by the private detention industry, so beloved by DHS and politicos who receive contributions and can tout the “job creation” in the Gulag! Also, states and localities who rent out substandard prison space on questionable contracts love the Gulag!

Significantly, none of the lower court decisions the Biden Administration seeks to overturn requires the release of anyone! Nope! All the lower courts have done is to give the “civil prisoners” a right to plead their cases for release and to require the Government to provide an individualized rationale for continued indefinite detention! Sure sounds like simple due process to me!

Maybe, if Garland, Mayorkas, and the Supremes had a chance to spend a few “overnights in the Gulag” they would take the Fifth Amendment’s application to people of color in our nation and pleading for their lives at our borders more seriously!

🇺🇸Due Process Forever! The “New American Gulag,” Never!

PWS

08-24-21

🧑🏽‍⚖️🇺🇸⚖️THE NATION: CHIEF U.S. DISTRICT JUDGE MIRANDA M. DU (D NV) COURAGEOUSLY & CORRECTLY EXPOSED THE RACISM, WHITE SUPREMACY BEHIND OUR IMMIGRATION LAWS — Expect Appellate Judges At Both Ends Of The Spectrum To Discredit & Suppress “Uncomfortable Truths!” — “A lone federal judge cannot stop 100 years of bigoted policies, but if you want to know what a truly progressive legal analysis looks like, Judge Du just spelled one out.“

Chief Judge Miranda M. Du
USDC Nevada
PHOTO: US Courts, Public Realm

https://www.thenation.com/article/society/immigration-crime-law/

ELIE MYSTAL, Justice Correspondent, writes in The Nation:

_{. . . .}

The opinion is thorough and well-reasoned, and Judge Du’s arguments are so obvious in retrospect that it’s kind of amazing they aren’t a staple of the immigration debate in this country. But this is where Judge Du’s background perhaps becomes important.

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Miranda Du was born in Ca Mau, Vietnam, in 1969. Her family fled the nation after the Vietnam War when she was 9, first to Malaysia, before eventually making its way to Alabama. She went to Berkeley for law school and was an employment lawyer in Nevada when Harry Reid and Barack Obama made her a federal district judge in 2011. I would imagine that Judge Du looks at the US immigration system with a fresh perspective, at least as compared to a person like me, who was born here and has been taught to just accept a background level of bigotry as an immutable fact of immigration law. One of the more striking parts of her opinion in this case is the section in which she calls out other courts for not doing this sooner. She essentially says that courts in other jurisdictions that have looked at Section 1326 have blindly accepted the government’s reasoning that the 1952 reauthorization cleansed the statute of its racial bias, without really looking at the 1952 Congress.

The opinion is brilliant, and I’m going to print it out so I’ll still have a copy of it when Justice Samuel Alito and the other conservatives on the Supreme Court reverse it and order Du’s opinion to be nuked from orbit. There is, practically speaking, no chance this ruling survives Supreme Court review. The high court will skate over the disparate impact analysis by saying that any person, regardless of race, who crosses the southern border will experience the same over-enforcement. Or the court will reverse the ruling of racist intent by finding, as other courts have, that the 1952 Congress did cleanse the statute of racism. Or they’ll find that the government does have a legitimate and permissible interest in discriminating against southern border crossers. After all, the Supreme Court found bigotry to be okay in Trump v. Hawaii, which upheld the Muslim ban, so finding a reason to uphold Section 1326 will be child’s play for the conservatives who like a little bigotry in their immigration rulings.

And that’s if the case even makes it to the Supreme Court, which it probably won’t. Judge Du’s ruling will first be appealed to the US Court of Appeals for the Ninth Circuit, and I could see it getting reversed there. It’s unlikely that other liberal judges will even want to open this can of worms. As I said, Judge Du relies on a disparate impact analysis, and I can think of at least three Supreme Court justices who might be in the mood to overturn disparate impact analysis altogether.

MORE FROM MYSTAL

WHY ARE WE STILL USING TRUMP’S BROKEN CENSUS?

Elie Mystal

A QUICK REMINDER THAT MANDATING VACCINES IS TOTALLY CONSTITUTIONAL

Elie Mystal

Judge Du is right about the bigotry inherent in our immigration laws, but conservatives like the bigotry and liberals will be afraid that trying to stop it will just piss off the conservatives.

But at least this opinion exists now. It’s out there, and future lawyers and judges can read it and maybe think differently about the core assumptions at the heart of our immigration system. A lone federal judge cannot stop 100 years of bigoted policies, but if you want to know what a truly progressive legal analysis looks like, Judge Du just spelled one out.

Now, President Biden just needs to read it and go out and nominate 100 judges who agree.

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

Read the full article at the link.

Biden could start by telling Garland to “redo” the U.S. Immigration Courts with well-qualified, expert, progressive judges in the “ Chief Judge Miranda Du” image!

Different backgrounds and new, “real life” perspectives! That’s why two decades of appointments of almost exclusively prosecutors and government bureaucrats, to the exclusion of human rights experts and advocates, to the Immigration Judiciary has produced such unfair and disastrous results for humanity and American law! Similar to other “blind spots” in American law, it has also created misery and cost innocent lives.

For the most part, judges of all philosophies hate being confronted with “ugly truths” about the system they are a part of. Consequently, the impetus to sweep historical truth and logical legal reasoning under the carpet when it produces uncomfortable, unpopular, and highly controversial results is overwhelming on all sides of the judicial spectrum, with the exception of a few “brave souls” like Chief Judge Du.

One of the most obvious and disgraceful of these “dodges,” is the abject failure of the Article IIIs to confront head on the clear Fifth Amendment unconstitutionality of the Executive’s “captive Immigration Courts,” particularly as currently staffed and still operating in “Miller Lite, White Nationalist mode.”

But, courageous decisions like this will be a part of our permanent legal history and come back to haunt today’s go along to get along Federal Judges, at all levels!

🇺🇸Due Process Forever!

PWS

08-23-21

🏴‍☠️SUPREMES’ GOP MAJ. SLAMS GULAG DOOR SHUT ON REFUGEES IN “WITHHOLDING ONLY PROCEEDINGS” 👎🏽 — “NO BOND HEARINGS FOR YOU, ALIENS!” — Johnson v. Guzmán Chavez (6-3) — Oh, To Be A “Pipeline Builder” Endowed With Legal & Human Rights That Even Elite GOP Supremes Will Recognize!

https://www.washingtonpost.com/politics/courts_law/supreme-court-deported-immigrants-penneast-pipeline/2021/06/29/3e83164e-d8dc-11eb-8fb8-aea56b785b00_story.html

This WashPost headline and Post Supreme Court reporter Robert Barnes’s summary say it all!

Supreme Court rules against immigrants claiming safety fears after deportation and for pipeline builders

By Robert Barnes

June 29 at 5:22 PM ET

. . . .

In the immigration case, the court was considering the rights of a relatively small subset of immigrants: those who were deported once before but reentered the United States illegally because they say they faced threats at home.

At issue was a complex federal law that authorizes the government to detain immigrants and which section of it applies to these types of cases.

One piece of the law says, “the alien may receive a bond hearing before an immigration judge” and thus the chance to be free while proceedings continue, Justice Samuel A. Alito Jr. wrote for the majority. In the other, the immigrant is considered “removed,” and indefinite detention is warranted.

Alito and his fellow conservative justices said it was the second that applied, and the detainees do not get a bond hearing. The court’s three liberals objected.

The case involved people who an immigration officer found had credible fears of danger or persecution in their home countries. For instance, Rodriguez Zometa said he was threatened with death by the 18th Street Gang when he was removed to his home country of El Salvador.

The question of whether the government could hold the immigrants without a hearing before an immigration judge had divided courts around the country. The case was argued before President Biden took office, and lawyers for the Trump administration told the court immigrants were not entitled to a hearing.

Alito said Congress had good reason to be more restrictive with those who came back into the country after being deported. “Aliens who reentered the country illegally after removal have demonstrated a willingness to violate the terms of a removal order, and they therefore may be less likely to comply with the reinstated order” that they leave, he said.

He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

The court’s liberals, Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, saw it differently and would have affirmed the victory the plaintiffs won at the U.S. Court of Appeals for the 4th Circuit in Richmond.

“Why would Congress want to deny a bond hearing to individuals who reasonably fear persecution or torture, and who, as a result, face proceedings that may last for many months or years?” Breyer wrote. “I can find no satisfactory answer to this question.”

The case is Johnson v. Guzman Chavez.

. . . .

Here’s the “full text” of the decision:

19-897_c07d

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

Nice summary, Robert! You can read the rest of Barnes’s report at the link. Indeed, Justice Breyer’s cogent question quoted in the article remains unanswered by the wooden legal gobbledygook in the majority decision, devoid of much understanding of how the dysfunctional Immigration Courts and the DHS “New American Gulag” actually operate and dismissive of what it actually means to be a refugee seeking to exercise legal rights in today’s world.

At issue: The right of non-criminal foreign nationals who have established a “reasonable fear” of persecution or torture if deported to apply for bond pending Immigration Court hearings on the merits of their cases. Getting a bond hearing before an Immigration Judge does not in any way guarantee release; just that the decision to detain or release on bond will be based on the individual facts and circumstances. Individuals released from detention have a much better chance of obtaining counsel and gathering the documentation necessary to win their cases. They are also much less likely to be “coerced” by DHS detention into surrendering viable claims and appeal rights.

Majority’s response: These “aliens” have neither rights nor humanity that any life-tenured GOP-appointed judge is bound to respect.

Alternative: There is a readily available alternative statutory interpretation, adopted by the 4th Circuit and the dissent, that would recognize the human and legal rights of vulnerable refugees seeking legal protection and give them hearings on continuing custody in substandard conditions (in some instances, conditions in the “DHS New American Gulag” fall well below those that would be imposed on convicted felons).

You can’t win ‘em all: The Round Table was one of many organizations filing an amicus brief on behalf of the refugees and in support of the position adopted by the 4th Circuit and the dissent. While we were unsuccessful on this one, at least we are on the “right side of history.”

Creative suggestion: Detainees should incorporate, perhaps as a pipeline company, or better yet a gun rights’ group, so that they would have legal rights and be treated as “persons” (e.g., “humans”) by the Supremes’ GOP majority.

Next steps:

Advocates should prevail on the Biden Administration to change the regulations to give this limited subclass of applicants for protection a chance to seek bond before an Immigration Judge;
Advocates should keep up the pressure on the Biden Administration and Garland to appoint better judges at EOIR: progressive practical experts, who know how to grant legal protection efficiently and fairly and who will establish appropriate legal precedents to help these cases move through the EOIR system on the merits in a timely and fundamentally fair manner consistent with due process. The length of time it takes “Withholding Only” cases to move through the Immigration Courts has lots to do with: unfair, coercive detention practices by DHS; poor judging and bad precedents at EOIR; incompetent “judicial administration” and politicized “Aimless Docket Reshuffling” @ EOIR by DOJ politicos and their EOIR “retainers.”

Long term solution:

Support and vote for progressive legislators who will revise the immigration laws to do away with the unnecessary and wasteful “New American Gulag;”
Vote progressive candidates for President and the Senate: political officials committed to putting better Federal Judges on the bench at all levels — “practical scholars” with real experience representing the most vulnerable in society and who will tirelessly enforce due process, equal protection, human rights, and fundamental fairness for all persons regardless of race, religion, or status; judges who understand and will seriously reflect on the “real life” human consequences of their decisions. Better judges for a better America!

🇺🇸Due Process Forever!

PWS

06-30-21

🤮👎🏽ULTIMATE HIPOCRACY: EVEN AS AMERICA FINALLY CELEBRATES JUNETEENTH HOLIDAY, DRED SCOTT & INSTITUTIONALIZED RACIST DEHUMANIZATION REMAIN REALITIES FOR BLACKS & OTHER MIGRANTS OF COLOR AT EOIR & DHS — Imprisonment Without Trial, Bogus Bonds, Mistreatment In The New American Gulag, Jim Crow “Courts,” No Rule Of Law, Still Realities For Those Of Color Exercising Legal Rights In Broken System!

“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”

Roger B. Taney, Chief Justice, Supreme Court, March 1857, Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)

“Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the due process clause.”

Justice Samuel Alito, Department of Homeland Security v. Thuraissigiam, 591 U.S. ___ (2020)

Dred Scott (circa 1857)
Public Realm — Black asylum seekers and other migrants aren’t celebrating the continuing disgraceful “Dred Scottification of the other” in Mayorkas’s “New American Gulag” and Garland’s “Miller Lite” Immigration “Courts” that aren’t “courts” at all!

https://www.huffpost.com/entry/institutional-racism-immigration-system_n_60cbc554e4b0b50d622b66d7

By Rowaida Abdelaziz in HuffPost:

Yacouba, a political activist in Ivory Coast, knew if he didn’t immediately flee his home country, he wouldn’t survive.

After being threatened, attacked and tortured by people sympathetic to those in power, Yacouba fled his country in 2018. He went to Brazil for a few years, then made a perilous trek through Peru, Ecuador, Colombia, Panama, Costa Rica, Honduras and Mexico before finally arriving in the United States.

The journey was one of the two most challenging periods of his life. The second was being detained as a Black immigrant in the U.S.

As the nation celebrates Juneteenth — a day commemorating the emancipation of African Americans who had been enslaved in the United States — as a federal holiday for the first time, Black Americans and immigrants are fighting to dismantle institutional racism, including within the immigration system. Black immigrants are disproportionately detained, receive higher bond costs, and say they face racist treatment within detention centers.

Recognizing and celebrating the emancipation of slaves is vital, activists say ― but continuing to take down systemic racism needs to come with it.

“From an immigration perspective, Black immigrants face disproportionate levels of detention and exclusion,” Diana Konate, policy director at the advocacy group African Communities Together, said Thursday on a press call. “These can be life-threatening, as Black immigrants often get deported back to unsafe and dangerous conditions. While we celebrate the victories, we keep in mind that a lot of work remains.”

. . . .

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

Read the rest of Rowaida’s article at the link.

Every day that Garland, Monaco, Gupta, and Clarke drag their collective feet on ending “Dred Scottification,” racial bias, and xenophobia at EOIR diminishes their credibility on all racial and social justice issues. To date, Garland has appointed zero (O) progressive judges at EOIR, has only scratched the surface of the White Nationalist bias in decision-making in the Immigration Courts, and has failed to re-establish due process and the rule of law for Blacks and other migrants of color at the border.

Justice Alito and his colleagues in the majority disgracefully basically “dressed up” the core of Dred Scott dehumanization and bias in “21st century faux constitutional gobbledygook and intentional, disingenuous fictionalization!” Make no mistake: asylum seekers applying at our borders with their lives and humanity at stake are “persons” subject to our jurisdiction and are entitled to full Constitutional due process and statutory rights that are being denied to them every day, currently by the Biden Administration.

While Alito & Co. are wrong, DEAD WRONG in all too many cases, nothing in their dishonest and misguided “jurisprudence” prevents Garland from providing due process to individuals, regardless of status, in Immigration Court and to ending the racism and dehumanization underneath both the mess at EOIR and the cowardly abdication of duty by the Supremes’ majority in Thuraissigiam! In human rights, you either solve the problem or become part of it. And, experts, journalists, and historians are making a permanent record of the actions of the Supremes and the Biden Administration when democracy and racial justice are under stress!

You don’t have to look very far to “connect the dots” between Alito’s dismissive attitude toward the human rights of Asians and other asylum seekers of color and the increase in hate crimes directed against Asian Americans and unfair policing of African Americans. Once courts and government officials endorse “dehumanization of the other based largely on ethnicity” the “protections” and “distinctions” of citizenship tend to also vanish. If the lives of migrants of color can be declared worthless, what difference does citizenship mean for those of the same ethnic heritage that Alito deems below humanity? Obviously, the Trump kakistocracy’s attack on migrants of color was just a “place holder” for their attack on the rights of all persons of color in America!

How can Garland’s DOJ demand racial justice in state law enforcement while operating America’s most notorious “Jim Crow Court System?”

James “Jim” Crow
Symbol of American Racism — He still “rules the roost” at Garland’s EOIR!

It’s time for all civil rights and civil liberties organizations to join forces in demanding an end to bias and “Dred Scottification of the other” in Garland’s disgracefully dysfunctional Immigration “Courts.” Not rocket science!🚀 Just human decency, common sense, available (yet ignored) progressive expertise, and Con Law 101!

🇺🇸Due Process Forever!

PWS

06-21-21

⚠️FIFTH CIRCUIT REMAND IS JUST FIRST OF MANY THAT WILL RESULT FROM BIA’S TOTALLY AVOIDABLE NIZ-CHAVEZ SCREW-UP! — Garland’s Backlog Likely To Mushroom Until He Cleans House @ EOIR! — “Culture of Denial” At BIA Crippling American Justice! — Garland Needs Qualified Judges & Professional Court Administrators @ EOIR, To Replace The “Continuing Clown Show!”🤡

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/unpub-ca5-niz-chavez-remand-villegas-de-mendez-v-garland

Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Dan Kowalski reports on LexisNexis Immigration Community:

Immigration Law

Daniel M. Kowalski

18 Jun 2021

Niz-Chavez

Unpub. CA5 Niz-Chavez Remand: Villegas de Mendez v. Garland

Villegas de Mendez v. Garland

“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.”

Hats off to Raed Gonzalez!

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

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 humans caught 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?

🇺🇸Due Process Forever!

PWS

06-20-21

🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️

Circus — 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

https://media.ca11.uscourts.gov/opinions/pub/files/201912019.pdf

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.

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

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). This idiocy 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 and promoted 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!

Nor is this a Circuit renowned for critical analysis or holding the Government to a high standards in immigration cases. Indeed, the Eleventh Circuit itself bears some responsibility for this mess! They are well aware of the anti-asylum bias and poor decision-making emanating from the Atlanta Immigration Court, within their jurisdiction, and have chosen to ignore it. See, e.g., https://immigrationcourtside.com/2019/04/22/11th-circuit-judge-adelberto-jose-jordan-outs-the-atlanta-immigration-court-for-equal-protection-charade-in-a-dissenting-opinion-in-my-view-ms-diaz-r/

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!

Star Chamber Justice — 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!

PWS

06-19-21

🏴‍☠️🤮👎🏻☠️ARBITRARY, CAPRICIOUS, ILLEGAL, INHUMANE, DEADLY ⚰️ DEFINES BIDEN ADMINISTRATION’S SOUTHERN BORDER POLICY! — Gross Failure To Stand Up For Constitution, Rule Of Law, Human Dignity!

Biden Border Message — “Border Message”
By Steve Sack
Reproduced under license

NBC News Reports from the “Law Free Zone” (“LFZ”) established by Biden Administration at the Southern Border:

https://apple.news/A355LpPmARmKZtO-iBa6C7A

Under Biden, crossing the U.S. border has become like a lottery. Timing is everything.

“Sometimes I ask myself why they [let me stay] and they deported others,” said a 20-year-old Nicaraguan man. “And I give thanks to God.”

by Julia Ainsley, Didi Martinez and Kenzi Abou-Sabe | NBC NEWS

Julia Edwards Ainsley
Investigative Reporter, NBC News

. . . .

“We will see more deaths. And that’s the sad truth for us,” Copp said.

Immigration advocates also believe uncertainty surrounding the Title 42 policy is driving many migrants to take more dangerous routes to avoid being apprehended all together.

“The Biden administration’s retention of Title 42 and refusal to open the legal ports of entry is having the perverse effect of forcing desperate asylum seekers fleeing danger to cross between the ports, which is to nobody’s benefit,” said Lee Gelernt, deputy director of the ACLU’s immigrants’ rights project and a lead plaintiffs’ lawyer in a lawsuit challenging the use of Title 42.

For now, the Biden administration has made no promises of end dates for the Title 42 policy, even as Covid-19 restrictions ease across the country. Department of Homeland Secretary Alejandro Mayorkas has said that the policy is in place to protect both migrants, who would need to be kept temporarily in congregate care settings if allowed in, and agents.

Gelernt said the policy of only guaranteeing unaccompanied children entry forces some families to self-separate in order to give their children the best chance of seeking asylum in the U.S.

. . . .

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

Read the full article at the link. A “lottery” for human lives! What’s next for the Biden/Harris Administration, “Hunger Games V?”

Mayorkas’s claim is pure BS! 💩 This inane, illegal, immoral, and unnecessary policy “protects” nobody except smugglers and traffickers! And, the idea that at this point, it is required by COVID is absurd on its face!

By contrast, Lee Gelernt of ACLU, a long-time inspirational leader of the NDPA, speaks truth! The Southern Border can’t be regulated without repealing the illegal Title 42 restrictions and immediately re-establishing the rule of law. That includes timely professional screening by expert Asylum Officers working for USCIS; a fair, robust, generous, practical, due-process-oriented application of asylum and other protection laws by a radically reformed EOIR utilizing the services of real Immigration Judges who are experts in asylum law; and close cooperation and support from NGOs, local governments, religious, and private bar groups to provide universal representation to asylum seekers and to lead and implement resettlement efforts throughout the U.S.

The expertise, practical problem solving ability, and resources are available. Most of it is in the private/NGO/academic sectors right now. These are the leaders and experts the Biden Administration should have brought into Government “right off the bat” to solve the problem, but has tragically failed to do so. Not like they were’t told well in advance!

It won’t happen with the bureaucrats and “tunnel visioners” the Biden Administration is relying upon — folks committed to repeating the failures of the past who lack the experience, vision, courage, independence, and creative problem solving ability necessary to lead the way to a better future. Using the law (or lack thereof) as a “deterrent” and issuing threats won’t stop desperate refugees from coming. As we can see, it only “turns them off” on using our (unavailable and now largely defunct) legal system and drives them first into the hands of traffickers and smugglers and eventually into our underground “extralegal” population.

Human migration is eons older than our republic! It won’t be eradicated or turned off and on by the utterances and actions of politicos and law enforcement officials. It requires a thoughtful, informed approach that has been largely absent from our government for decades, which is why the failures and resulting human trauma, wasted resources, and squandered human opportunities persist Administration after Administration, regardless of party and rhetoric.

Jeff “Gonzo Apocalypto” Sessions had no problem running all over the rule of law when he wanted to implement his illegal, White Nationalist, misogynist agenda and degrade asylum seekers with dehumanization and “Dred Scottification” of the other, primarily women, children, and individuals of color.

Unfortunately, by contrast, the Biden Administration, is too weak-kneed to stand up for the rule of law and human dignity!

But, folks like Julia Ainsley and her team are making a permanent public record. As in the Trump Administration, the Biden Administration doesn’t appear to recognize the concept of accountability in Government, particularly as applied to itself. But, I doubt history will be as kind and as accommodating to those, regardless of political affiliation, carrying out these illegal, irrational, inhumane, and “designed to fail” policies.

Perhaps, the “dead can’t speak!” ☠️⚰️ But, others certainly can and will speak for them and see that the abusers of humanity are held accountable.

🇺🇸🗽⚖️Due Process Forever!

PWS

06-02-21

🇺🇸HISTORY: HIGHLY RECOMMENDED BY COURTSIDE — “America’s Long Struggle Against Slavery” — Lecturer: Professor Richard Bell, U of MD, College Park — What Most Of Us Never Learned In High School!

Tulsa Race Riot — Result of Tulsa Race Atrocity, June 1, 1921
“All that was left of his home after the Tulsa race riot”
Unknown photographer
Public Domain via Wikimedia Commons

Here’s the “trailer:”

https://www.thegreatcourses.com/courses/americas-long-struggle-against-slavery

As we recognize the 100th anniversary of the “Tulsa Atrocity” and our failure to properly acknowledge it, teach it, condemn the failures of our legal system, and/or hold the perpetrators accountable, this is a course that every American should view!

Dehumanization of “the other,” grotesque minimization and distortion of their achievements and key contributions to our nation’s prosperity and survival, and legal systems that knowingly and intentionally denied legal, constitutional, and human rights to our fellow Americans are a long and dishonorable part of our history, often denied or intentionally whitewashed by those who fear truth. The long struggle against “America’s original sin” involved fierce resistance by African American slaves as well as concerted cooperative efforts between free African Americans and White opponents of slavery. But, there were also tensions, squabbles, false starts, petty “turf wars,” and fundamental disagreements among slavery’s opponents. Shockingly, but not surprisingly, many slaves found that suicide was their only effective form of protest against, and escape from, this vilest of all American institutions.

The struggle against slavery’s toxic legacy and its existence in various forms in modern America continues. And, there is a direct connection with America’s continuing mistreatment of immigrants, particularly people of color and asylum seekers, and the failure of our legal system, even today, to protect them rather than abuse and dehumanize them.

The ongoing struggle is reflected in the Biden Administration’s apparent naive belief that they can effectively address racial injustice in America while continuing to treat asylum seeking migrants, many women, children, and people of color, as “non-persons” or “less than human” under our Constitution and laws. Ending “Dred Scottification of the other” — in all its forms — is key to America’s getting beyond the mistakes, tragedies, and injustices of our past and creating a better future for all persons in America!

FULL DISCLOSURE: Our son William P. Schmidt works for The Great Courses.

🇺🇸🗽⚖️Due Process Forever!

PWS

05-31-21

🏴‍☠️👎🏻🤮“HOUSTON, WE’VE STILL GOT A PROBLEM!” — A HUGE AND GROWING ONE — Garland’s Failure To Restore “Justice @ Justice” Reverberates Throughout Our Nation!🆘

Judge Garland’s vision of “justice” for immigrants @ Justice:

“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color

Gone from the West Wing, but he and his EOIR “plants” remain an inspiration for “Dred Scottification” of the other, unconstitutional “judging,” worst practices, and demeaning treatment of human rights experts and due process advocates by the DOJ! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

Courtside Exclusive

By Paul Wickham Schmidt

May 5, 2021

This just in from a NDPA stalwart in Houston, TX:

Houston we still have a (huge) problem! Luckily we also have some great immigration advocates and members of the due process army.

. . . .

Houston EOIR is still closed for non-detained. They have just built a third immigration court here, “Greenspoint”, with over 30 brand new judges, just collecting dust (although that’s probably a good thing as it would only serve as a deportation mill). If you can believe the absurdity, you have to file a motion for change of venue + a motion to consolidate, to join family members whose cases have been placed in different courts all here in Houston. 🤦‍♂️🤦‍♂️

I believe Houston now has the 2nd largest backlog after New York City now, in large part due to the mismanagement by EOIR HQ.

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

From coast to coast, from the Rio Grande to the Great Lakes, Courtside followers and NDPA warriors are making it clear: Garland’s failure to take due process and racial justice in Immigration Court seriously and his disregard and disrespect for immigration/human rights experts is furthering havoc in the American justice system!

Is it “malicious incompetence” or just plain old incompetence and disregard for the due process rights of “the other” by Garland? Does it make any difference?

What will make a difference is flooding the Article IIIs with litigation challenging this ongoing constitutional nonsense and squandering of taxpayer funds! Overwhelm EOIR with applications for judicial positions and “bore out” the rotten foundations of this system from the inside with the tools of due process, fundamental fairness, and best practices! Also, inundate your Congressional representatives with demands that this blot on American justice be removed from the DOJ forthwith! Write those op-eds and keep informing your local media about the unmitigated, unnecessary, unconscionable, unconstitutional continuing disaster at Garland’s EOIR and how it destroys human lives on a daily basis! Shine the beacon of due process and justice on the dark, secretive, unconstitutional “Star Chambers” Garland operates in the guise of Immigration “Courts.”

NDPA legions, don’t be content to “wander in the wilderness” while clueless politicos and bureaucrats @ Garland’s DOJ destroy your sanity and the lives of the humans you represent! Stand up to institutionalized racism, continuing incompetence, disgraceful misogyny, intransigence, and ongoing “Dred Scottification” of communities of color by the Garland DOJ! End the DOJ’s anti-immigrant culture and disrespect for the defenders of due process and American democracy that goes on Administration after Administration as if your clients’ lives and your professional expertise were “chopped liver!” Enough is enough! Fight back against “Miller Lite Justice!”

My fellow warriors for justice, YOU are again being ignored, shut out, marginalized, abused, looked down upon, dehumanized, insulted, and scorned by yet another Dem Administration that YOU helped put in office! Time to stand up and be heard for YOUR rights, the rights of the people YOU represent, and the future of our Federal Judiciary and our American Democracy!

NO MORE “MILLER LITE @ JUSTICE!” ASK YOURSELVES: WHO WON THE LAST ELECTION? WHAT DOES IT MEAN TO “WIN” IF GARLAND CONTINUES TO RUN THE IMMIGRATION COURTS LIKE STEPHEN MILLER IS STILL IN CHARGE?

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

PWS

05-06-21

CHARLES M. BLOW @ NYT BEGS TO DIFFER WITH GOP SENs SCOTT & GRAHAM: “However, it is important to remember that nearly half the country just voted for a full-on racist in Donald Trump, and they did so by either denying his racism, becoming apologists for it, or applauding it. What do you call a country thus composed?”

https://www.nytimes.com/2021/05/02/opinion/america-racism.html?referringSource=articleShare

. . . .

I personally don’t make much of Scott’s ability to reason. This is the same man who said in March that “woke supremacy,” whatever that is, “is as bad as white supremacy.” There is no world in which recent efforts at enlightenment can be equated to enslavement, lynching and mass incarceration. None.

Colfax

It seems to me that the disingenuousness on the question of racism is largely a question of language. The question turns on another question: “What, to you, is America?” Is America the people who now inhabit the land, divorced from its systems and its history? Or, is the meaning of America inclusive of those systems and history?

When people say that America is a racist country, they don’t necessarily mean that all or even most Americans are consciously racist. However, it is important to remember that nearly half the country just voted for a full-on racist in Donald Trump, and they did so by either denying his racism, becoming apologists for it, or applauding it. What do you call a country thus composed?

Historically, however, there is no question that the country was founded by racists and white supremacists, and that much of the early wealth of this country was built on the backs of enslaved Africans, and much of the early expansion came at the expense of the massacre of the land’s Indigenous people and broken treaties with them.

Eight of the first 10 presidents personally enslaved Africans. In 1856, the chief justice of the United States wrote in the infamous ruling on the Dred Scott case that Black people “had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.”

The country went on to fight a Civil War over whether some states could maintain slavery as they wished. Even some of the people arguing for, and fighting for, an end to slavery had expressed their white supremacist beliefs.

Abraham Lincoln said during his famous debates against Stephen A. Douglas in 1858 that among white people and Black ones “there must be the position of superior and inferior, and I, as much as any other man, am in favor of the superior position being assigned to the white man.”

Some will concede the historical point and insist on the progress point, arguing that was then and this is now, that racism simply doesn’t exist now as it did then. I would agree. American racism has evolved and become less blunt, but it has not become less effective. The knife has simply been sharpened. Now systems do the work that once required the overt actions of masses of individual racists.

. . . .

As Mark Twain once put it: “The difference between the almost right word and the right word is really a large matter. ’Tis the difference between the lightning bug and the lightning.”

Being imprecise or undecided with our language on this subject contributes to the murkiness — and to the myth that the question of whether America is racist is difficult to answer and therefore the subject of genuine debate among honest intellectuals.

Saying that America is racist is not a radical statement. If that requires a longer explanation or definition, so be it. The fact, in the end, is not altered.

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

Read Blow’s full article at the link.

Four things that are clear to me:

The “history” that most of us in my generation learned in high school was “whitewashed;”
The monumental achievements of non-white Americans, women, and children which allowed this country to exist, prosper, and flourish have consistently been ignored or downplayed;
America still has race issues;
The GOP, in particular, has failed to come to grips with the issue of race in 21st century America (apologists Scott & Graham notwithstanding).

🇺🇸⚖️🗽Due Process For All Persons Under Law, Forever!

PWS

05-03-21

☠️🤮⚰️🏴‍☠️ CONTINUING CAT-ASTROPHE @ GARLAND’S EOIR: Latest Circuit Rebukes Show EOIR’s Deep-Seated Incompetence In CAT Adjudication Involving Common Situations — “[A]ny reasonable adjudicator would be compelled to conclude that they suffice to establish a ‘reasonable possibility’ that he may be subjected to torture with government acquiescence, as that term has been defined in the relevant regulation.” — EOIR & DHS Were Dispensing Injustice, Ignoring Circuit Precedents, & Mis-Construing Regulations To Deny CAT Even Before Biden-Mayorkas-Garland Continued Illegal Suspension Of Rule Of Law @ Border! PLUS — Answers To Last Week’s EOIR Pop Quiz!

9th Cir. Shows How IJ Screwed Up “Reasonable Fear” Analysis Of Honduran CAT Claim!

Alvarado-Herrera v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/13/18-70191.pdf

From court staff summary:

The panel held that substantial evidence did not support the immigration judge’s determination that Alvarado- Herrera failed to establish a reasonable fear of torture with the consent or acquiescence of a public official, given Alvarado-Herrera’s specific assertions of police complicity in the 18th Street gang’s violent acts. Noting that the asylum officer refused to credit Alvarado-Herrera’s assertions, which were based in part on media reports and common knowledge among Hondurans that it is well known that the police work for the gangs, that the police are allied with the 18th Street gang in particular, and that the police not only allow gang members to harm others but also provide information to gang members to help them find and kill people, the panel wrote that it was unclear what additional evidence the asylum officer expected Alvarado-Herrera to produce at that stage of the proceedings. The panel observed that non-citizens in reinstatement proceedings who express a fear of returning to their home country typically appear for a reasonable fear interview within a short time of their

ALVARADO-HERRERA V. GARLAND 5

apprehension by immigration authorities, and that many, like Alvarado-Herrera, are being held in detention facilities and do not have legal representation. The panel wrote that, as a result, they cannot realistically be expected to produce for the asylum officer’s review the kind of detailed country conditions evidence that would be introduced during a merits hearing before an immigration judge. The panel wrote that such a demand would be inconsistent with the purpose of a reasonable fear interview, which is simply to screen out frivolous claims for relief in as expeditious a manner as possible, and if a non-citizen provides an otherwise credible account concerning his fear of torture, his own statements can supply adequate support for claims about country conditions, at least for purposes of satisfying the ten percent threshold necessary to pass a reasonable fear screening interview. The panel remanded with instructions for the agency to provide Alvarado-Herrera a hearing before an immigration judge only as to the merits of his claim for protection under CAT.

2) 10th Cir. Says IJ Muffed Analysis Of Mexican CAT Claim!

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca10-on-cat-mexico-cartels-torrez-de-lopez-v-garland

CA10 on CAT, Mexico, Cartels: Torrez de Lopez v. Garland

Torrez de Lopez v. Garland

“Maria Torres de Lopez, a native and citizen of Mexico, appeals the denial of her application for deferral of removal under the United Nations Convention Against Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the petition for review and remand for further proceedings. … [W]e are compelled to conclude it is more likely than not that El Tigre [of the Sinaloa Cartel] would be aware if Torres de Lopez is removed to Mexico, and that El Tigre and his direct associates would have both sufficient motivation and ability to locate Torres de Lopez anywhere in Mexico. But the evidence does not compel the conclusion that the Juárez or Sinaloa cartels have a sufficient institutional motivation to locate Torres de Lopez anywhere in Mexico. And the questions that remain are ones the IJ did not reach—if El Tigre or his direct associates found Torres de Lopez in Mexico, would they inflict any harm on her, would that harm be severe enough to constitute torture for CAT purposes, and would Mexican public officials instigate, consent to, or acquiesce in such harm? We may not answer those questions in the first instance and remand them to the IJ for initial consideration. … All this brings us to the fourth and fifth steps in the IJ’s framework—if El Tigre or his direct associates find Torres de Lopez, will they harm her and, if so, will the harm amount to torture? … [W]e must remand to the agency to conduct the inquiry into the fourth and fifth steps in the first instance. … We grant the petition for review and remand to the agency for further proceedings consistent with our decision.”

[Hats off to Stephen W. Spurgin!]

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

Sadly, “reasonable adjudicator” wouldn’t encompass many of those currently serving in Garland’s holdover corps of Immigration Judges and his “Millerized & Trumpitized” BIA. In particular, the horrible job done by, and the bias against due process for those seeking CAT protection shown by, Attorneys General and the BIA over the past three Administrations is absolutely disgraceful.

Yet, it continues, unabated, today under Judge Garland! It’s basically “Jim Crow Justice” dressed up in a Sunday suit. One could almost imagine a picture of Chief Justice Roger Taney hanging in the BIA’s conference room.

Roger Taney
PHOTO: Matthew Brady
Public Realm
Discredited CJ remains a hero to many Miller/Hamilton/Sessions holdovers at Garland’s DOJ because of his aggressive “Dred Scottification” of the other! One of Stephen Miller’s soul mates, this dude’s life was defined by his unyielding belief that all men aren’t created equal and that only powerful White Guys have a right to life, liberty, and the pursuit of happiness! And, that women don’t even exist before the law!

The obvious lack of competence in a “judiciary” regularly attempting to send individuals back to possible torture in violation of due process and the statute should prompt decisive corrective action from those in charge of this dysfunctional system. But, to date, it hasn’t!

Instead, what have Biden, Garland, & Mayorkas done? Continued the illegal practice of returning asylum seekers and others to possible death or torture without any process at all. Then, they have the gall to send their “flackies” out to claim that the “victims” are the “problem” for exercising their legal rights to seek protection, at a time that apparently is “politically inconvenient” for the Biden politicos to offer a system that provides that legally-required protection.

Looks pretty “Stephen Millerish” to me, not to mention “Catch 22!” How dare you cross our border seeking due process and turn yourself in to the Border Patrol when can go to a legal port of entry, present yourself, and be immediately sent back to death with no process at all! Don’t you understand how American “justice” works? Go back to your own countries from where you were forced to flee where, if you live long enough, you can’t apply under our non-existent overseas refugee system. Is that perfectly clear?

The Presidential election was over on Saturday, Nov. 7, 2020! Biden and Harris campaigned on a platform of immigration and human rights reforms that included ending the many illegal, inhumane, and counterproductive policies of Trump/Miller, restoring the rule of law, and re-establishing honesty and human dignity in immigration, asylum, and refugee processing.

Yet, in the 10 weeks between the conclusion of the election and the inauguration, “Team Biden” and those who were under serious consideration for leadership positions in the thoroughly broken and dysfunctional immigration bureaucracy came up with no viable plans to “hit the ground running” with the necessary dramatic, yet achievable, changes. That’s something that I submit hundreds of “practical experts” — all of them in the Democratic camp — could have achieved had they been tapped.

It certainly was no mystery that the border and the mess at DHS, EOIR, OIL, and the SG’s Office would have to be addressed immediately — “day one or day two stuff!” Nor, would it take any deep thinking to recognize that immigration would be the overarching issue connecting social justice, racial justice, economic recovery, court reform, foreign affairs, the environment, and public health.

Nor would it have taken much awareness to recognize that the GOP, who didn’t even bother advancing a platform or constructive ideas during the campaign, would make and “rev up” appeals to hate, fear, racism, White Nationalism, myths, fabrications, distortions, and outright lies about “security threats” (actually threats to “white culture and power”) posed by desperate individuals, many of color, merely seeking legal refuge and fair consideration under our legal system. So, getting the legal asylum and refugee systems functioning again should have been a top priority — simultaneous with COVID relief!

Additionally, there were dozens of smart journalists out there who were “on top” of the Miller/Trump White Nationalist nonsense, and had figured out how to cut through the BS and obfuscation to explain what the law and common sense requires, in understandable terms. Thus, the Biden team even had a “golden opportunity” to put together a group of “immigration/human rights/rule of law flackies” who could both educate insiders and in public run circles around the likes of Fox News, right wing radio, and magamoron White Nationalist nativists like Cruz, Cotton, Hawley, and McCarthy. All it would have taken is competence and courage — two qualities often in short supply in Dem Administrations when immigration, human rights, and due process are at stake.

Yet, nearly three months into the Administration, and a full five months after the election was decided, the Administration’s approach to this key issue can best, and most charitably, be described as “Amateur Night at the Bijou.”

During five months since the election, the Biden Administration has quickly moved to set up a chain of nationwide “recruiting centers” for the their Immigration Courts, immigration bureaucracy, refugee administration, human rights PR groups, and liaison with Hill Dems. Results have been astounding!
PHOTO: Thomas Hawk
Creative Commons

Most seriously, the Immigration Court and the rule of law remain in shambles — with Judge Garland failing to take the necessary elementary steps to reverse the Trump/Miller DOJ’s misogynist, racially driven assault on the rule of law for asylum seekers of color. This sends an ugly shockwave of failure throughout the Biden-Harris agenda and continues to de-stabilize an already shaky American justice system.

It also “pisses off” the Administration’s would-be friends and supporters while energizing its most vociferous enemies! Additionally, it demoralizes and disrespects those remaining at EOIR, many who have struggled though the last four years trying to hold some portions of the fort while waiting for salvation, potential allies — already on the in side — who will be necessary for the “reclamation project.”

Some have even taken the desperate step of anonymously reaching out to Courtside for help in raising consciousness about the astounding level of injustice, incompetence, and anti-immigration culture that Judge Garland is countenancing at EOIR. They just can’t wrap their heads around it!

As they have pointed out, Sessions, who once (in the distant past, before overt racism came part of the GOP platform) was deemed unfit by his own party for a Federal Judgeship because of his racist record, and his hench-people “hit the ground running” with their White Nationalist misogynistic agenda at EOIR. This was an agenda basically drafted by nativist groups. They moved rapidly and with purpose to remove, force out, disempower, isolate, and/or marginalize anyone at EOIR thought to harbor the heretical belief that asylum seekers, migrants, women of color, and their lawyers were humans or possessed any rights whatsoever. They obliterated any “best practices” — they few things that actually were working at EOIR. They also filled every vacant position with nativist toadies and hacks, packed the Immigration Courts and BIA with more “judges,” even as they were more than doubling the already huge backlog with their “Aimless Docket Reshuffling” and endless due-process- killing, yet fundamentally ineffective, enforcement nobly gimmicks.

Sessions even proudly announced his war on refugee women of color and their lawyers at am “EOIR training session” for “his judges,” drawing stunned silence from many, but also cheers from some “magamoron judges” in the audience. Somehow, over the years, indolent Article III Judges overlooked the obvious lack of ethics in Sessions’s performance as well as the crystal clear lack of Matthews v. Eldridge fundamental due process in a farcical “court” system. A “court parody” where the racist head prosecutor, who also asserted himself as the de facto head of DHS enforcement, urged “his judges” on to inflict ever more rapid and unlawful acts of desecration, dehumanization, and capricious treatment upon those they were supposed to be judging fairly and humanely.

Some of the “survivors” within EOIR expected Judge Garland, once a highly respected Court of Appeals Judge, former Supreme Court nominee, veteran of the DOJ in better times, and relatively recent descendent of immigrants, to put a quick end to the unconstitutional nonsense at EOIR, cast out the “Miller/Hamilton perps,” their many EOIR toadies, and the “go along to get alongs” who had created this disgraceful and dysfunctional mess at what was once supposed to be a “bastion of due process.” They expected Garland to bring in a team of respected “immigration/human rights/due process pros” and to elevate those in the system who had stood tall against the abuses of due process and humanity over the past four years.

Alas, those survivors quickly discovered that Garland is largely oblivious to the ongoing clown show at EOIR, the continuing human carnage it causes on a daily basis, the squandered potential to boost due process and racial justice in America, and the rapid erosion of his support and his image among those who courageously and often successfully fought the “Miller neo-Nazi plan” to dismantle the American justice system.

Vainly, they wait for Garland’s recognition of the heroic role of the National Association of Immigration Judges (“NAIJ”) in maintaining some vestiges of justice and professional training at EOIR and, most important, in publicly exposing, including to Congress, the ongoing fraud, waste and abuse of public trust carried out by the Trump/Miller kakistocracy at EOIR. They are distraught by Garland’s inexplicable failure to condemn “Billy the Bigot’s” totally outrageous actions in frivolously moving to “decertify” the NAIJ as punishment for their exposing his many illegal activities and abuses of honest government at EOIR.

They are absolutely incredulous that a “100 page study,” conducted by those having no real expertise in the Immigraton Court, would be viewed as a substitute for the immediate removal and replacement of dysfunctional personnel and a strong public commentment to root out injustice, racism, and misogyny, reject and repudiate bogus precedents, institute aggressive due process reforms, and promote true quasi-judicial independence at EOIR.

They are particularly puzzled by Garland’s permitting the conducting of idiotic clown shows — misnamed “Town Halls” — throughout the country further insulting and inflaming the long-suffering stakeholders and advertising EOIR’s continuing failure to run like a court and respect the input, expertise, and legitimate needs of those same “stakeholders.” They are baffled when there are so many great “due process role models” out there who could and should be sending the exact opposite message — that “the clown show is over” and the pros are now in charge of restoring justice and sanity @ EOIR!

They can’t fathom how anyone, let alone a former Article III Judge, could believe that judicial dockets across America can be micromanaged by non-judicial bureaucrats in Falls Church and DC who have never successfully managed a docket in their lives, know little about the harsh realities of today’s dysfunctional Immigration “Courts,” and who operate in blissful studied ignorance of the many localized factors that go into successful docket management at all other functioning court systems in America.

And, although it might be below Judge Garland’s “radar screen,” human lives are actually being destroyed and human suffering multiplied while he and his “spear carriers” diddle over how to fix EOIR! To quote some of the Hill Dems yesterday, “This is stupid!”

(Duh, who outside the Biden camp would have failed to predict that yesterday’s idiotic “two-step” on the refugee cap would go over worse than a lead balloon? The Biden immigration “advisors” might think that refugee lives don’t matter, but many Dems living in the real world and on the Hill don’t see it that way!)

Garland has also failed to place competent judicial leadership in charge of EOIR and the BIA and to make it clear that institutional disdain for due process, best practices, and human dignity will no longer be the ”order of the day” in America’s largest, and perhaps most important, Federal Court System. A rather atrocious start for an Administration struggling to put the Trump-Miller scofflaw White Nationalist agenda behind them!

Just how does one “pull that off” with a bunch of Miller cronies, and Sessions/Barr nativist judges (many incompetent to fairly apply and interpret basic asylum, immigration, and due process laws) still dominating the scene in America’s most dysfunctional and dehumanizing “judiciary.” While Judge Garland might have forgotten this during his “above the fray” tenure in the “judicial ivory tower,” leadership, priorities, and symbolism are really important in government! Right now, they are all headed 100 mph in the wrong direction at the DOJ — for no obvious reason!

Garland, supposedly the “people’s” chief lawyer, has also failed to push Mayorkas and the White House for a restoration of the legal asylum system at the border! In 100 days, Mayorkas and Garland could have supplemented the Asylum Officer corps with retirees and private sector refugee/asylum experts and gotten them down to the border to do honest, efficient credible fear screening. Obviously, reopening timely legal screening at legal ports of entry would reduce the incentives for crossing the border elsewhere.

They also could have energized human rights and pro bono NGOs to represent those “screened in.” Garland could have gotten both sitting and retired Immigration Judges with strong records of granting asylum (check TRAC, it’s all set out in plain view) working on these cases, while clearing the dockets of hundreds of thousands of backlogged cases going nowhere in any event. See Greg Chen & Professor Peter Moskowitz.

Garland could have appointed competent Appellate (or even “Appellatte”) Immigration Judges at the BIA (acting, if necessary until final selections can be made) to issue positive precedents on asylum, CAT, withholding, cancellation of removal, adjustment of status, administrative closure, and docket management to stop the endless nonsense and idiotic, justice-killing, enforcement gimmicks and “Aimless Docket Reshuffling” imposed by the Trump/Miller crowd of malicious incompetents.

Secretary Mayorkas and Secretary Becerra could have invoked and energized the now largely dormant refugee resettlement apparatus in the private/NGO sectors to temporarily resettle arriving children and families in a humane, orderly and efficient manner.

Yesterday’s stunning “unforced error” on refugee processing is just the latest example that Biden’s advisors don’t “get” immigration and need to be replaced with experts; experts who understand the fundamentals, believe in the generous, humane, restore the rule of law platform he and Harris ran on, and can explain it in clear, compelling terms. The “right folks” are “out there” — that’s the problem, “out there” instead of inside solving problems and moving the train in the right direction.

It’s not rocket science:

Immigration is good. 98% of Americans are immigrants or descended from immigrants. That immigration has produced some scoundrels, insurrectionists, liars, and ingrates like the Trumps, Cruzes, Cottons, McCarthys, Taylor-Greenes, Millers, Kobachs, etc., of our world doesn’t change that overall equation;
Refugees and asylees (refugees granted status at our border or in the US when our legal system is functioning — it isn’t now) are essential components of legal immigration;
We need and must have significantly more legal immigration, particularly if we want to maintain a robust economy and a dynamic, innovative society, in light of population losses from the pandemic and low birth rates;
Applying the Refugee Act of 1980 in a fair, generous, humane manner that furthers due process of law isn’t “an option” for debate or a matter for more “studies” — there are more than enough of the latter our there anyway. The problem is that the folks who did them and can solve the problems remain on the outside rather than running EOIR! It’s a legal and moral imperative! Garland’s function isn’t coming up with more failed, illegal gimmicks to avoid granting asylum or aid misguided law enforcement, make a few cosmetic changes to appease advocates, or engage in more boneheaded “revolution by evolution” (see Obama Administration) approaches at EOIR! It’s getting our legal asylum system functioning again at EOIR and also at USCIS in a robust, competent manner with real, independent, expert judges and professional judicial administrations who can do the job;
That also means publicly and virtuously standing up for the legal and Constitutional rights of the most vulnerable among us — per MLK Jr. — and having the guts and presence to “take it to” magamorons like Miller, Cruz, Cotton, McCarthy, and other GOP White Nationalist hate mongers who are destroying our nation and poisoning the well of our democracy with their xenophobic myths and “solutions” that actally are “crimes against humanity!” When in power, those folks had no problem publicly advancing and even touting their racist lies and ethnic slurs, as they continue to do! Why is Garland “swallowing the whistle” on rooting out and condemning institutionalized racism, misogyny, dehumanization of the other, incompetence, and scofflaw behavior @ EOIR?

Obviously, those advisors who told Biden to release the “Miller-level” refugee cap yesterday believed in neither the Biden election platform nor the positives of robust legal immigration. They also lacked the knowledge and self-confidence to “sell” an honest, realistic, humane human rights and immigration agenda that is the key to our national future. They also were woefully ignorant about and totally “misplayed” the strong political and public support for refugees and the critical role that immigration and human rights advocates play within the Democratic Party.

Currently, the inability of the Biden Administration to bring competence, positivity, the rule of law, and creative thinking to their immigration/human rights program is weighing down and “sucking much of their air” from the many things they are getting right.

It’s past time to end “Amateur Night at the Bijou” and bring in the pros. Before it’s too late!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! Judge Garland, End the Disgraceful EOIR Clown Show, Now🤡🦹🏿‍♂️🏴‍☠️!

PWS

04-17-21

ANSWERS TO LAST WEEK’S “POP QUIZ”

https://immigrationcourtside.com/2021/04/11/amateur-night-the-bijou-sponsored-by-judge-merrick-b-garland-attorney-general-of-the-u-s-an-insiders-assessment-of-latest-eoir/

1) 0

2) 0

3) 0

4) No (none exists)

5) a & b (a, b, & e also acceptable)

6) No, they can’t. Casey would be right home with the gang at EOIR HQ and also @ “Main ‘Justice.’”

If you got 100%, congratulations, you have won the “Amateur Night at the Bijou” competition. Although that makes you over-qualified to become an “Appellatte Immigration Judge” you will receive a free Starbucks coupon redeemable for a latte of your choice, to be issued only tomorrow!

🧑🏽‍⚖️👨🏻‍⚖️⚖️BIDEN & WARREN BELIEVE IN A DIVERSE, PROGRESSIVE FEDERAL JUDICIARY — JUDGE GARLAND CONTROLS PERHAPS THE MOST IMPORTANT FEDERAL JUDICIARY NEXT TO THE SUPREMES — So, What’s He Waiting For? — Will He Reverse The Dems’ Maddening Failure To Grasp & Act On The Cosmic Importance & Game Changing Potential Of A Progressive Immigration Court, That Gets Beyond The Often White, Male, Enforcement, “Go Along To Get Along” Stereotypes & Showcases Diverse, Progressive “Practical Scholars,” Many Of Them Women & People Of Color?

https://www.huffpost.com/entry/elizabeth-warren-professional-diversity-federal-judges_n_605cbde5c5b67ad3871d9095o

Jennifer Bendery in HuffPost:

The Democratic senator has spent years calling for more public defenders and fewer corporate attorneys getting federal judgeships. Now Joe Biden agrees.

For years, Sen. Elizabeth Warren (D-Mass.) has been a lonely voice in the Senate on the need to put people with all kinds of different legal backgrounds into lifetime federal judgeships.

“We face a federal bench that has a striking lack of diversity,” she said at a 2014 event on this topic, hosted by Alliance for Justice, a progressive judicial advocacy group. “President Obama has supported some notable exceptions but … the president’s nominees have thus far been largely in line with the prior statistics.”

Warren wasn’t talking about diversity in terms of demographics like race or gender; Obama made history on those fronts with his judicial nominees. She was talking about the problem with presidents and senators ― in both parties ― routinely picking corporate attorneys and prosecutors who went to Ivy League schools to be federal judges.

If you want the nation’s courts to reflect the people they serve, Warren has argued, we need judges who have been public defenders and civil rights attorneys, people familiar with the legal needs of everyday Americans who may be living on low incomes or otherwise marginalized. A diversity of legal professionals on the federal bench means more informed decisions on issues related to economic justice and civil rights.

At last, the times are catching up with Warren.

President Joe Biden is signaling he’s ready to make professional diversity central to his judicial selection process. He hasn’t nominated anyone yet, but White House counsel Dana Remus wrote to Democratic senators in December urging them to recommend court picks to the White House as soon as possible, and said that Biden is “particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”

Top Democrats in the House are putting a spotlight on the issue too, even though they don’t have a say in confirming federal judges.

“Unfortunately, we have a lot of work to do when it comes to judicial diversity,” House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said in a Thursday subcommittee hearing on this subject. “There are ways in which the federal judiciary of 2021 looks uncomfortably similar to the federal judiciary of 1921 … Somehow, despite all our progress, today’s federal judges remain, for instance, overwhelmingly male, white, former prosecutors or corporate lawyers who went to a handful of law schools.”

. . . .

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

Read the complete article at the link.

Biden is “particularly focused on nominating individuals whose legal experiences have been historically underrepresented on the federal bench, including those who are public defenders, civil rights and legal aid attorneys, and those who represent Americans in every walk of life.”

That’s basically a description of scores of immigration/human rights experts out here in the New Due Process Army (“NDPA”). Yes, they should be a primary source of appointees to the Article III Judiciary! Absolutely! But, they should also be appointed to the BIA and the Immigration Courts — now!

At present, the Immigration Courts are “administrative courts,” not part of the Article III Judiciary; therefore, Senate confirmation isn’t necessary. They are “administered” by a now “evil-clown-like” 🤡🦹🏿‍♂️ DOJ bureaucracy called “EOIR.” We need to get the right progressive scholars and “disciples of due process” on the Immigration Bench — immediately, without further delay!

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Immigration Courts are one of most powerful tools in American law. Also, Constitution be damned, until we get a long overdue Article I independent Immigration Court, they are completely controlled by the AG — Judge Merrick B. Garland. This is a big, big deal — nearly 600 judgeships, almost the size of the entire U.S. District Court system, are at stake!

Sessions and Barr quickly figured: Why not aggressively weaponize EOIR to undermine American democracy, institutionalize racism and misogyny, and promote White Nationalist authoritarianism? And, that’s exactly what they did — to the max. Using EOIR judgeships to reward some of their unqualified, white, nativist buddies in the process was an “added bennie.”

Even the totally incomprehensible incompetence with which they administered EOIR fulfilled their “negative dream.” Dysfunctional Immigration Courts became an important tool for debilitating the entire U.S. justice system and “Dred Scottifying” (dehumanizing) persons of color before the law.

Those with compelling cases for relief, many pending for years, were shuffled off to the end of the docket. Or, if they did get a hearing, incompetent or compromised “judges” at the trial and appellate levels often arbitrarily denied their claims for bogus reasons. This disgraceful mess of a “court” actually penalized those with strong cases for relief — many who should have been done and joined our society years ago instead linger in the largely self-created EOIR “backlog” of 1.3 million cases. Or, they are condemned to endless litigation to vindicate their rights in a system intentionally rigged against them.

Looking for the underpinning for the idea that people of color have reduced rights to vote, political participation, and that their lives don’t really matter? Look no further than the ongoing “Dred Scottification” of asylum applicants and other people of color in Immigration Court, now enshrined in a number of bogus “precedents” issued by White Nationalist AGs and their wholly-owned BIA!

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

And, their job was “easy as pie” following the indolent stewardship of their Dem predecessors. When the latter finally got around to filling judicial vacancies at EOIR, every couple of years, they handed them out almost exclusively to government “insiders” — like they were “length of service” pins! Better-qualified progressive, due-process-oriented, experts, scholars, advocates, and others in the private/NGO/academic sector — folks who actually could have brought badly needed professionalism, excellence, and order to a system careening out of control — were basically “shut out” by the Dems. Interesting way to reward your potential allies!

The Dems’ “diverse recruiting program” for the Immigration Judiciary was to advertise the positions for about 10 minutes on the “insider online bulletin board” known as “USA Jobs.” Then, after an average two-year long, excruciatingly wasteful and mindless “Rube Goldberg-designed evaluation” by layer after layer of bureaucrats — few, if any of them actual sitting Immigration Judges — participating, in most cases they basically just selected “the next ICE prosecutor, EOIR staffer, or OIL litigator up.” But, the “beauty” of this system is that with so many layers of bureaucracy involved, nobody could be held accountable for the actual selections! Talk about a “finger-pointers’ dream.”

Oh yeah, and of course there was no room for public input and/or participation in this process. Some of the newly anointed judges actually had rather less-than-stellar reputations in the immigration community at large. Many would have drawn blank stares if mentioned to a panel of acknowledged immigration and human rights experts. Few were “household names,” except perhaps in a negative sense. No matter to the Obama folks!

During the Obama Administration, I attended a so-called “training-session” at an Immigration Judge Conference — this was “in person,” although for a number of years we got “home-video grade” training CDs. There, curiously, one of these “newbies” was selected to “educate” a group of us, many of us with decades of experience in the field and some with actual teaching credentials under their belts. Our “instructor” referred to the Government as “us,” to the respondent and counsel as “them,” and bragged that “our big wins from OIL” would make it easier to deny asylum.

Other “instructors” parroted cringingly mind boggling mis-statements of asylum law — apparently designed to fit into OIL’s preferred litigation positions. And, incredibly, this was with the “founding mother” of U.S. Asylum Law, Judge Dana Leigh Marks, who had argued and won the landmark “well-founded-fear” case INS v. Cardoza-Fonseca before the Supremes, effectively muzzled and holding her head in the audience.

In 21 years on the bench, during “EOIR training,” I was lectured to by a variety of BIA Attorney Advisors, OIL Attorneys, politicos, DHS Officials, State Department Officials, Ethics Officers, stress managers, and an occasional NGO advocate. Never, did I get to hear my colleague Judge Marks’s views on the development of asylum law since Cardoza. Sure, that didn’t stop us from carrying on a dialogue elsewhere, as we did. But, we were pretty much “on the same page.” The folks who needed to hear what Judge Marks had to say didn’t.

Hon. Diana Leigh Marks — Hon. Dana Leigh Marks
U.S. Immigration Judge
San Francisco Immigration Court
Past President, National Association of Immigration Judges

And, we wonder why Dems inevitably screw up immigration law, and end up defending highly regressive actions and “designed to fail” policies — try “baby jails,” indefinite detention, and non-English-speaking toddlers “representing themselves” in Immigration Court. I kid you not! Each of the foregoing were things that the Obama DOJ vigorously advanced and defended before Federal Courts!🤮

Will Judge Garland figure it out before it’s too late? Or, as his Obama predecessors did, will he fritter away his time with “more sexy,” but actually far less important initiatives and lofty ideals that will be effectively undermined by failing to create a progressive, expert, well functioning, professional Immigration Judiciary.

Judge Merrick Garland — Judge Merrick B. Garland, U.S. Attorney General
Official White House Photo
Public Realm

Racial justice, equal justice, and due process for all persons in America start in the Immigration Court. And, right now they are dying there! If Judge Garland doesn’t pay attention, grasp the moment, aggressively clean house, and take the long overdue, radical, courageous actions to build a better Immigration Judiciary, the whole U.S. justice system might well come crashing down upon him! And, he will have only himself to blame!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! A Better EOIR for A Better Federal Judiciary! A Better Federal Judiciary For A Better America! Not rocket science! But, it does require vision, recognition of the problem, and the courage to solve it!

PWS

3-28-21

First, let’s hear from my friend, NDPA Stalwart, Houston Law Immigration Clinic Director, Professor Geoffrey Hoffman:

Let’s not forget that Garland’s DOJ defended this grotesque miscarriage of justice. In a grim way, Geoffrey’s “practical scholarship” ties in nicely with Ruth Marcus’s recent op-ed in WashPost on the righto-wacko 5th Circuit’s dangerous assault on American justice:

🇺🇸Due Process Forever! Bad Judges, Never!

Related posts:

Better Judges for better America!

🇺🇸Due Process Forever!

Related posts:

By Robert Barnes @ WashPost

🇺🇸Due Process Forever!

Related posts:

Dean Kevin Johnson posts on ImmigrationProf Blog:

🇺🇸Due Process Forever! The “New American Gulag,” Never!

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ELIE MYSTAL, Justice Correspondent, writes in The Nation:

🇺🇸Due Process Forever!

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This WashPost headline and Post Supreme Court reporter Robert Barnes’s summary say it all!

Supreme Court rules against immigrants claiming safety fears after deportation and for pipeline builders

Here’s the “full text” of the decision:

🇺🇸Due Process Forever!

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“Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the due process clause.”

By Rowaida Abdelaziz in HuffPost:

🇺🇸Due Process Forever!

Related posts:

Dan Kowalski reports on LexisNexis Immigration Community:

🇺🇸Due Process Forever!

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Thamotar v. U.S. Att’y Gen., 11th Cir., 06-17-21, Published

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!”

🇺🇸Due Process Forever! Garland’s “Asylum Free Zones,” Never!

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NBC News Reports from the “Law Free Zone” (“LFZ”) established by Biden Administration at the Southern Border:

🇺🇸🗽⚖️Due Process Forever!

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Here’s the “trailer:”

🇺🇸🗽⚖️Due Process Forever!

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Judge Garland’s vision of “justice” for immigrants @ Justice:

Courtside Exclusive

By Paul Wickham Schmidt

May 5, 2021

This just in from a NDPA stalwart in Houston, TX:

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!

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🇺🇸⚖️🗽Due Process For All Persons Under Law, Forever!

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9th Cir. Shows How IJ Screwed Up “Reasonable Fear” Analysis Of Honduran CAT Claim!

2) 10th Cir. Says IJ Muffed Analysis Of Mexican CAT Claim!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! Judge Garland, End the Disgraceful EOIR Clown Show, Now🤡🦹🏿‍♂️🏴‍☠️!

ANSWERS TO LAST WEEK’S “POP QUIZ”

Related posts:

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! A Better EOIR for A Better Federal Judiciary! A Better Federal Judiciary For A Better America! Not rocket science! But, it does require vision, recognition of the problem, and the courage to solve it!

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