Category: Supreme Court

⚖️🗽 US JUDGE IN SAN DIEGO EVISCERATES TRUMP’S ILLEGAL AND IMMORAL “TURNBACKS” OF ASYLUM APPLICANTS; MAYORKAS TERMINATES REMAIN IN MEXICO (AGAIN) EVEN AS RED RESTRICTIONIST AGs FILE MORE FRIVOLOUS OBJECTIONS! 🤮

 

https://drive.google.com/file/d/12R1mt07Z4S7R7xiieRUznueR9DRXrBdq/view?usp=sharing

Al Otro Lado v. Mayorkas

U.S. District Judge Cynthia Bashant minces no words in blasting both the unlawful, cruel, and unconstitutional policy and the Supreme’s toxic decision to look the other way as immigration enforcement runs roughshod over legal, constitutional, and human rights. 

In its September 2, 2021 decision, this Court held the right to access the U.S. asylum

process conferred vis a vis § 1158(a)(1) applies extraterritorially to noncitizens who are

arriving at Class A POEs along the U.S.-Mexico border, but who are not yet within the

jurisdiction of the United States, and is of a constitutional dimension. (Op. Granting in

Part and Denying in Part Parties’ Cross-Mots. for Summ. J. (“MSJ Opinion”), ECF No.

742.) It further held that Defendants’ systematic turnbacks of asylum seekers arriving at

Class A POEs (the “Turnback Policy”) amounted to an unlawful withholding by

immigration officials of their mandatory ministerial “inspection and referral duties”

detailed in 8 U.S.C. § 1225 (“§ 1225”), in violation of the Administrative Procedures Act,

5 U.S.C. § 706(1) et seq., and the Fifth Amendment Due Process Clause. (MSJ Opinion at

33–34, 37–38); see 8 U.S.C. §§ 1225(a)(3) (mapping out immigration officials’ duty to

inspect asylum seekers), 1225(b)(1)(A)(ii) (mapping out immigration officials’ duty to

refer asylum seekers to the U.S-asylum process).

In casting appropriate equitable relief to rectify the irreparable injury Defendants’

unauthorized and constitutionally violative Turnback Policy has inflicted upon members

of the Plaintiff class,2 this Court ordinarily would be guided by the fundamental principle

that an equitable remedy should be commensurate with the violations it is designed to

vindicate. See Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 465 (1979) (“[It is an]

accepted rule that the remedy imposed by a court of equity should be commensurate with

the violation ascertained.”). Equitable relief should leave no stone unturned: it should

correct entirely the violations it is aimed at vindicating. That cornerstone of Article III

courts’ equitable powers generally is unfaltering, whether the party against whom an

injunction is sought is a private entity, a state actor, or, as here, a federal official. Thus, in

2 Plaintiffs consist of the named Plaintiffs listed in the case caption, along with a certified class

consisting of “all noncitizens who seek or will seek to access the U.S. asylum process by presenting

themselves at a Class A [POE] on the U.S.-Mexico border, and were or will be denied access to the U.S.

asylum process by or at the instruction of [Customs and Border Protection] officials on or after January 1,

2016.” (Class Certification Order at 18, ECF No. 513.) The Court also certified a subclass consisting of

“all noncitizens who were or will be denied access to the U.S. asylum process at a Class A POE on the

U.S.-Mexico border as a result of Defendants’ metering policy on or after January 1, 2016.” (Id.)

– 3 – 17cv2366

the ordinary course of things, this Court would not hesitate to issue broad, programmatic

relief enjoining Defendants from now, or in the future, turning back asylum seekers in the

process of arriving at Class A POEs, absent a valid statutory basis for doing so.

Yet the circumstances with which this Court is presented are not ordinary because

of the extraordinary, intervening decision of the United States Supreme Court in Garland

v. Aleman Gonzalez, 142 S. Ct. 2057 (2022). That decision takes a sledgehammer to the

premise that immigration enforcement agencies are bound to implement their mandatory

ministerial duties prescribed by Congress, including their obligation to inspect and refer

arriving noncitizens for asylum, and that, when immigration enforcement agencies deviate

from those duties, lower courts have authority to issue equitable relief to enjoin the

resulting violations. It does so through unprecedented expansion of a provision of the

Illegal Immigration Reform and Immigrant Responsibility Act of 1989 (“IIRIRA”), 8

U.S.C. § 1252(f)(1) et seq. (“§ 1252(f)(1)”), which for years the Ninth Circuit has

interpreted as placing a relatively narrow limit on injunctive relief. In essence, Aleman

Gonzalez holds that § 1252(f)(1) prohibits lower courts from issuing class-wide injunctions

that “require officials to take actions that (in the Government’s view) are not required” by

certain removal statutes, including § 1225, or “to refrain from actions that (again in the

Government’s view) are allowed” by those same provisions. Id., 142 S. Ct. at 2065.

Federal courts (except for the Supreme Court) now may only issue injunctions enjoining

federal officials’ unauthorized implementation of the removal statutes in the individual

cases of noncitizens against whom removal proceedings have been initiated. See id.

In no uncertain terms, the logical extension of Aleman Gonzalez appears to bestow

immigration enforcement agencies carte blanche to implement immigration enforcement

policies that clearly are unauthorized by the statutes under which they operate because the

Government need only claim authority to implement to immunize itself from the federal

judiciary’s oversight.

With acknowledgment that its decision will further contribute to the human suffering

of asylum seekers enduring squalid and dangerous conditions in Mexican border

– 4 – 17cv2366

communities as they await entry to POEs, this Court finds the shadow of Aleman Gonzalez

inescapable in this case. Even the most narrow, meaningful equitable relief would have

the effect of interfering with the “operation” of § 1225, as that term is construed by the

Aleman Gonzalez Court, and, thus, would clash with § 1252(f)(1)’s remedy bar. Aleman

Gonzalez not only renders uneconomical vindication of Plaintiff class members’

statutorily- and constitutionally-protected right to apply for asylum, those inefficiencies

inevitably will lead to innumerable instances in which Plaintiff class members will be

unable to vindicate their rights at all. Thus, while the majority and dissent in Aleman

Gonzalez hash out their textual disagreements concerning § 1252(f)(1)’s scope in terms of

remedies, make no mistake, Aleman Gonzalez leaves largely unrestrained immigration

enforcement agencies to rapaciously scale back rights. See Tracy A. Thomas, Ubi Jus, Ibi

Remedium: The Fundamental Right to a Remedy Under Due Process, 41 San Diego L.

Rev. 1633, 1634 (2004) (“Disputes over remedies provide a convenient way for dissenters

to resist conformance to legal guarantees. Courts can declare rights, but then default in the

remedy to avoid a politically unpopular result.” (footnote omitted)).

Although it is no substitute for a permanent injunction, class-wide declaratory relief

is both available and warranted here. In lieu of even a circumscribed injunction enjoining

Defendants from again implementing a policy under which they turn back asylum seekers

presenting themselves at POEs along the U.S.-Mexico border, the Court enters a

declaration in accordance with its MSJ Opinion that turning back asylum seekers

constitutes both an unlawful withholding of Defendants’ mandatory ministerial inspection

and referral duties under § 1158 and § 1225 in violation of both the APA and the Fifth

Amendment Due Process Clause. The Court also issues relief as necessary to named

Plaintiff Beatrice Doe.

. . . .

You can read Judge Bashant’s full opinion at the link.

Meanwhile, Secretary Mayorkas exercised the authority recognized by the Supremes in Biden v. Texas to terminate the reprehensible and illegal “Remain in Mexico” (a/k/a “Let ‘Em Die in Mexico”) program engineered by Trump and Miller. Predictably, the same scofflaw, restrictionist “Red AG’s” who had instituted frivolous litigation to block this long overdue action filed more specious objections with the Trump-appointed US District Judge, as advocacy groups like Justice Action Center (“JAC”) pledged to fight the racist right until this vile (and highly ineffective) program is finally ended.

JAC Responds to Official Termination of Remain in Mexico, Attempts by Texas to Delay Wind-Down

FOR IMMEDIATE RELEASE

August 9, 2022

WASHINGTON, D.C. — In a victory for immigrants’ rights movement, the Remain in Mexico program has been officially terminated after court proceedings following the Supreme Court’s ruling in Biden v. Texas on June 30. Below is a statement from Justice Action Center founder and director Karen Tumlin:

“The official end to shameful Remain in Mexico program is a victory for the immigrants’ rights movement and the right to asylum. RMX is a stain on the country’s history, having harmed tens of thousands of people fleeing for their lives since the Trump Administration instituted the unlawful and immoral program in 2019.

“Since the Supreme Court’s ruling affirming the authority of the Biden Administration to end the RMX program, the #SafeNotStranded campaign has called on the President and DHS to implement a swift and humane wind-down, including halting all new enrollments and allowing everyone in RMX to safely pursue their asylum claims in the U.S. Yesterday, DHS stated its wind-down has begun and new people will not be enrolled in the program, and that it would disenroll individuals with upcoming RMX hearings. These are important first steps to finally redress just some of the immense harm inflicted by the program.

“This commitment by DHS, following such a significant SCOTUS victory, illustrates the strength and resilience of the immigrants’ rights movement. But even after a clear loss, Texas is continuing its hateful attempts to keep this deadly program in place for as long as possible: After the District Court rightfully vacated its injunction of the RMX wind-down yesterday, Texas unfortunately—yet unsurprisingly—filed an amended complaint challenging the second DHS memo rescinding RMX, as well as a motion asking the District Court to stay the memo’s effective date.

“But we will not be deterred: advocates will continue to fight back against ongoing red state efforts to continue Trump’s racist and xenophobic agenda and work towards a world where all people fleeing danger can be safe, not stranded.”

# # #

Contact:  Tasha Moro; 323-450-7269; tasha.moro@justiceactioncenter.org

Justice Action Center (JAC) is a new nonprofit organization dedicated to fighting for greater justice for immigrant communities by combining litigation and storytelling. JAC is committed to bringing additional litigation resources to address unmet needs, empower clients, and change the corrosive narrative around immigrants in the U.S. Learn more at justiceactioncenter.org and follow us on Twitter, Instagram, and Facebook.

 

Related:

8/1/22: JAC Responds to Supreme Court’s Certification of Decision on Remain in Mexico; Encourages Swift and Humane Wind-Down of Deadly Program

6/30/22: Justice Action Center Welcomes Positive Supreme Court Decision on Remain in Mexico in Biden v. Texas

3/21/22: #SafeNotStranded Campaign Launches Ahead of April Supreme Court Arguments in Biden v. Texas

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

We should remember that the Trumpest GOP’s insurrectionist war on American democracy and attack on truth and human decency began with overt lies and racist attacks on migrants of color and non-Christians. It has escalated to become an all out assault on our future as a nation of laws and values.

We can’t go back to a time when liberals and progressives viewed immigration as a tangental or secondary issue. It is THE all-encompassing issue now in preserving American democracy from GOP efforts to destabilize and destroy our nation’s fabric from bottom to top!

🇺🇸Due Process Forever!

PWS

08-11-22 

Related posts:

  1. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  2. 🏴‍☠️☠️⚰️LOSING FAITH IN THEIR OWN COMMITMENTS & COMPETENCE: Restoring The Rule Of Law At The Border Should Result In A Fairer, More Humane, More Realistic Asylum System, Encouraging Applicants To Apply Through Legal Channels, While Resulting In More Legal Immigration, Which America Needs, & Allowing CBP To Focus On Real Law Enforcement — Unfortunately, The Biden Administration Doubts Its Own Campaign Promises, As Well As Its Competence To Govern  — Administration Apparently Hopes Righty Courts Will Continue To “Force” Them To Carry Out “Miller Lite” Cruelty & Futility While Absolving Them Of Moral & Political Responsibility For The Ongoing Human Carnage!
  3. 😰NO HAPPY NEW YEAR FOR FAMILIES IN “THE NEW AMERICAN GULAG”☠️⚰️ — As Kakistocracy Of War Criminals 🤮🏴‍☠️ Departs, Will President Biden Have The Wisdom & Guts To Move Beyond “The Dem Border Alarmists” & Get The Progressive Leaders 🦸🏽‍♂️⚖️ From The NDPA In Place To Bring Due Process & Order To The Border?🗽🇺🇸
  4. ⚖️🗽MORE TRUTH ABOUT THE SOUTHERN BORDER FROM ONE OF AMERICA’S 🇺🇸 LEADING HUMAN RIGHTS EXPERTS: “Real Needs, Not Fictitious Crises Account For The Situation at US-Mexico Border,” By Donald Kerwin Center For Migration Studies

☠️🤮⚰️🏴‍☠️ MERCHANTS OF CHAOS & CORRUPTION: GOP HACKS, BAD RIGHTY JUDGES FORCE ILLEGAL CONTINUATION OF BOGUS TITLE 42 ABOMINATION! — Ending Title 42 Will Restore Order To The Border, Says Expert, Professor Stephen Yale-Loehr Of Cornell Law @ The Hill! — But, Wait, There’s Much More Needed, Say I!

Four Horsemen
GOP political hacks and their enabling bad righty Federal Judges have combined to wreak havoc on humanity and trample the Constitution, rule of law, common sense, and simple human decency at our Southern border!
Albrecht Dürer, Public domain, via Wikimedia Commons
Professor Stephen Yale-Loehr
Professor Stephen Yale-Loehr
Cornell Law

https://thehill.com/opinion/immigration/3575601-ending-title-42-wont-cause-immigration-mayhem-it-will-restore-order/

In 2015, a Ghanaian man who goes by the initials M.A. and his gay friend were brutally assaulted by a vigilante group in Accra, Ghana. In Ghana, homosexuality is illegal and carries a prison sentence of up to three years. M.A. was beaten with sticks before escaping through a window. His friend was killed. Fearing the group would find and kill him, he fled to Ecuador and made his way to the U.S. border, where he requested asylum. After being detained for nine months, he was released on bond and lived with a childhood friend in New York while he waited for his case to make it through the legal system.

M.A. clearly faced persecution, but an immigration judge denied his claim. I took M.A.’s appeal to the Board of Immigration Appeals in 2016 as part of the Cornell Law School’s asylum appeals clinic. It took M.A. four years to win asylum in America, but at least he was given the chance to apply in the first place.

Since March 2020, approximately 900,000 people — including over 215,000 parents and children — have been denied the ability to request asylum at all. They’re casualties of Title 42, a pandemic-related policy that paused nearly all asylum proceedings at the border. Some people argue the policy is preventing an influx of migrants. In fact, numbers are up despite the policy, and our refusal to process most of them has led to chaotic and dangerous conditions.

The United States has successfully managed ebbs and flows of asylum seekers for decades. There’s a system in place to manage an influx — and regardless of how hard immigration lawyers like me fight for them to stay, many will lose their case and be deported. Even so, we must let people try. It’s not only the right thing to do, it’s also guaranteed under international and domestic law. We signed a 1967 protocol to the U.N. Refugee Convention to protect the rights of refugees, and we have adopted it and codified it into U.S. asylum law. Right now, we’re violating those obligations. The longer we do, the weaker American rule of law looks to our global partners.

We must immediately reinstate due process for asylum seekers. And once this happens, we must work to make the system more equitable and faster.

. . . .

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

Read Steve’s complete op-ed in The Hill at the link.

I agree that “we must work to make the system more equitable and faster.” But, the answer can’t be just to hire more Immigration Judges in Garland’s dysfunctional, broken, and anti-asylum-biased “court” system. That would just speed the “deportation assembly line” and lead to even more injustice and grotesque inconsistencies. 

According to TRAC, Immigration Judge “asylum denial rates” currently “range” from 5% to 100%. That’s a ridiculous, indefensible variation and a total perversion of the generous standard for granting asylum set forth by the Supremes in Cardoza-Fonseca and adopted by the BIA in Matter of Mogharrabi, but seldom enforced or followed, particularly these days.  Why this very obvious, totally solvable problem is still festering going on two years into a Democratic Administration that pledged to solve it is beyond me! 

Enough of this nonsense, biased, “amateur night at the Bijou” mal-administration of the Immigration Courts at EOIR by Garland’s DOJ! No wonder folks are still complaining about “Refugee Roulette” more than a decade after it was written by my Georgetown Law colleagues Professors Phil Schrag, Andy Schoenholtz, and Jaya Ramji-Nogales (now an Associate Dean at Temple Law). Why not put one of THEM, or for that matter, Professor Yale-Loehr, in charge of kicking tail and cleaning out the deadwood at EOIR?

Amateur Night
This approach to life or death asylum adjudication at EOIR, particularly the BIA, is a killer!
PHOTO: Thomas Hawk
Creative Commons
Amateur Night

At a minimum Garland must:

  • Remove the holdover “Asylum Deniers Club” from the BIA and replace them with a real judge as Chair and new Appellate Immigration Judges who are widely recognized as “practical experts” with careers that have demonstrated superior scholarship in immigraton and human rights, an unswerving commitment to due process for individuals, and a passion for racial justice in our legal system; 
  • Have the “New BIA” issue useful precedential guidance on how to document and grant valid asylum cases at both the Asylum Office and the Immigration Court, implement best practices, and identify and remove from future asylum adjudication those unqualified Immigration Judges who basically “make up” reasons to deny and can’t or won’t treat applicants fairly; and
  • Immediately replace with qualified expert judges those Immigration Judges on the “Southern Border docket” who can’t fairly adjudicate asylum cases.

Steve is totally correct about the need for Title 42 to go! But, Garland’s EOIR, particularly the BIA, is just as broken, counterproductive, and out of control as Title 42! In many ways, the illegal abrogation of the rule of law at the Southern Border has somewhat ”hidden” the larger problem that a dysfunctional and incapable EOIR poses for those who do manage to get a hearing!

Without a legitimate, totally reformed and significantly “re-populated” EOIR operating at the “retail level” of our justice system, there will be no rule of law and equal justice under law in America — for anyone!

Tell Garland you have had enough! The deadly and disorderly “EOIR Clown Show” has got to go! Now!

EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

🇺🇸 Due Process Forever!

PWS

07-28-22

 

Related posts:

  1. 😰NO HAPPY NEW YEAR FOR FAMILIES IN “THE NEW AMERICAN GULAG”☠️⚰️ — As Kakistocracy Of War Criminals 🤮🏴‍☠️ Departs, Will President Biden Have The Wisdom & Guts To Move Beyond “The Dem Border Alarmists” & Get The Progressive Leaders 🦸🏽‍♂️⚖️ From The NDPA In Place To Bring Due Process & Order To The Border?🗽🇺🇸
  2. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  3. 🗽⚖️🇺🇸LEE GELERNT @ ACLU SAYS BIDEN ADMINISTRATION “cannot farm out the asylum system.” Yet, That Appears To Be Largely What They Are Doing Under New, Previously Unpublicized Program!
  4. 🏴‍☠️☠️🤮👎🏻IN NYT OP-ED, FORMER TRUMP DOJ ATTORNEY ERICA NEWLAND ADMITS COMPLICITY! — Having Undermined Democratic Institutions, Sold False Narratives To (Too Often Willing) Federal Judges, & Participated In Racist-Inspired “Dred Scottification” (“Dehumanization”) Of the Other Is Actually a BIG Deal! — So Is The Destruction Of Due Process & Fundamental Fairness In The Immigration Courts (Now, “Clown Courts”🤡, or “America’s Star Chambers”☠️) 

☹️👎 EXECUTIVE BRANCH “JUDGES” ARE CONSTITUTIONALLY PROBLEMATIC: EOIR Might Be The Worst, But By No Means The Only Agency Where Quasi-Judicial Independence Is Compromised By Politicos & Their Subservient “Managers!”  — Reuters Reports!

 

https://www.reuters.com/legal/litigation/us-watchdog-says-pressure-patent-officials-affected-agency-rulings-2022-07-21/

U.S. watchdog says pressure from patent officials affected agency rulings

Blake Brittain July 21, 20224:11 PM EDTLast Updated a day ago

pastedGraphic.png

(Reuters) – U.S. Patent and Trademark Office administrators improperly influenced decisions by the office’s patent-eligibility tribunal for years, the U.S. Government Accountability Office said in a preliminary report released Thursday.

The report said two-thirds of judges on the PTO’s Patent Trial and Appeal Board felt pressure from higher-ups at the office to change aspects of their decisions, and that three-quarters of them believed the oversight affected their independence.

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While the report said management “rarely” influenced decisions on whether to cancel a patent, it said it did affect judges’ rulings on questions like whether to review a patent.

A PTO spokesperson said the report “reflects GAO’s preliminary observations on past practices,” and that current director Kathi Vidal has “prioritized providing clear guidance to the PTAB regarding the director review process” since taking office in April.

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The U.S. Supreme Court decided last year that the PTO director should be able to review board decisions.

The PTAB allows parties to challenge the validity of patents based on preexisting inventions in “inter partes review” proceedings.

A committee of volunteer judges began peer reviewing decisions in such cases for style and policy consistency and flagging them for potential management review in 2013, the report said. PTAB management began informally pre-reviewing board decisions on important issues and offering suggestions in 2017, and management review became official PTO policy in 2019.

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Some PTAB judges said their decisions had been affected by fears of negative career consequences for going against the suggestions. One judge said in the report that the review policy’s “very existence creates a preemptive chilling effect,” and that management’s wishes were “at least a factor in all panel deliberations” and “sometimes the dominant factor.”

The report said the internal review policies were not made public until May.

Republican Congressman Darrell Issa of California said during a U.S. House of Representatives subcommittee hearing Thursday that the report of officials influencing PTAB decisions “behind closed doors” was “disturbing.”

Andrei Iancu was appointed PTO director by former President Donald Trump and took charge of the office in 2018. Iancu, now a partner at Irell & Manella, had no comment on the report.

Issa, the subcommittee’s ranking member, and its chairman, Democratic Congressman Hank Johnson of Georgia, called on the GAO last year to investigate the PTO director’s potential influence on PTAB cases.

(NOTE: This story has been updated with comment from the U.S. Patent and Trademark Office.)

Read more:

U.S. Supreme Court reins in power of patent tribunal judges

U.S. Senators Leahy, Tillis introduce bill to revamp patent review board

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Our Standards: The Thomson Reuters Trust Principles.

Thomson Reuters

Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets. Reach him at blake.brittain@thomsonreuters.com

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

While it might once have seemed like a great idea, after more than a half-century the so-called “Administrative Judiciary” has proved to be a failure. It often delivers watered-down, sloppy, political, expedient, or “agency friendly” decisions with the “window dressing” of due process and real judicial proceedings.

Moreover, contrary to the original purpose, in most cases it is neither truly “expert” not “efficient.” Indeed, the Immigration Courts have built “one of the largest backlogs known to man!” That just leads to more misguided “gimmicks” and pressure to “speed up the quasi-judicial assembly line!” Individual lives and rights are the “big losers.”

To make matters worse, under the “Chevron doctrine” and its “off the wall” progeny “Brand X,” the Article IIIs “cop out” by giving “undue deference” to this deficient product.

It’s time for all Federal Judicial tribunals to be organized under Article III or Article I of the Constitution and for the legal profession and law schools to take a long, critical look at the poor job we now are doing of educating and preparing judges. We need to train and motivate the “best, brightest, and fairest” to think critically, humanely, and practically. Then, encourage them to become judges — out of a sense of public service, furthering the common good, promoting equal justice for all, and a commitment to vindicating individual rights, not some “ideological litmus test” as has a become the recent practice.

🇺🇸 Due Process Forever!

PWS

07-22-22

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. THE TRUTH IS OUT, THANKS TO MICHELLE MENDEZ @ CLINIC: Practice Pointers on Matter of Castillo-Perez & “Takeaways” From FOIA Trove On In Absentias!
  4. ⚖️🧑🏽‍⚖️👨🏻‍⚖️🗽COURT REFORM: GW IMMIGRATION CLINIC STUDENTS WEIGH IN ON ARTICLE I — Emphasize Critical Due Process Need To Entirely Remove AG From Decision-Making Process!

FROM ROE TO DOBBS, A HALF-CENTURY DECLINE IN THE US JUDICIARY! — From Blackmun’s “Profound Lyricism” To Alito’s Snarky Far-Right Pseudo-Religious Dogma Masquerading As “Law!”  — Francine Prose in The Guardian

Francine Prose
Francine Prose
American Writer
PHOTO: Luigi Novi (2009)
Creative Commons License

https://www.theguardian.com/commentisfree/2022/jul/01/roe-v-wade-1973-ruling-supreme-court?CMP=Share_iOSApp_Other

As one more reminder of what we’ve lost, the text of the 1973 Roe v Wade ruling is unlikely to console us. Even so, I recommend downloading the pdf. In the wake of its overturning, this beautifully written document – which reads like a long form essay – is not only interesting in itself but now seems like another sign of how much has changed over the last half century, in this case for the worse.

Drafted by Justice Harry Blackmun, the ruling includes a clear and persuasive summary of the history of abortion law. “At the time of the adoption of our Constitution, and throughout the major portion of the 19th century, a woman enjoyed a substantially broader right to terminate a pregnancy that she does in most States today.” It tracks the centuries-old debate over when life begins, and dismisses the argument that a fetus is a person guaranteed the protections afforded US citizens. Throughout, it strikes us as the careful explication and clarification of a law, of legal precedent, unlike Justice Alito’s ruling in Dobbs v Jackson Women’s Health, which seems more like an expression of religious conviction masquerading as an unbiased interpretation of the constitution.

The Roe ruling is not about states’ rights. It’s about power and control | Derecka Purnell

What’s most striking about Roe v Wade – and its difference from the ruling that overturned it – is its eloquence. Blackmun’s lucid, frequently graceful language reflects a commitment to decency and compassion. The judges are clear about the dangers of carrying an unwanted child or a high-risk pregnancy to term. They strive to see the issue from the perspective of those confronting a serious life crisis, and to imagine the devastating outcomes that pregnant women and their families may face.

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“Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by childcare. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.”

The passage I admire most is the one in which Blackmun, at once profound and lyrical, describes the atmosphere surrounding the issue of abortion, the way our opinions are formed, and the pressures that the law must acknowledge and keep in balance.

“We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion. In addition, population growth, poverty, and racial overtones tend to complicate and not to simplify the problem.”

And there it is: a superbly rendered catalogue of the factors that come to mind when we consider the factors that will now determine whom Dobbs will hurt most: poverty, race, and life on the raw edges of human existence – an edge, one might say, on which every decision about abortion is made.

. . . .

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

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

Let’s face it. The concern for human life of out of touch righty ideologues like Alito ends at birth. After that, the “others” are expendable — particularly if they are women or folks of color!

All their claimed concern about “personhood” ends at delivery — when it can no longer be used to threaten vulnerable pregnant women or medical professionals. After that, the GOP program for kids (whether wanted or not) consists of things like:

  • Valuing their lives below the “right” of every Tom, Dick, and Harriett in America to own and use military-style assault weapons (something that certainly wasn’t the “original intent” of the drafters of the 2d Amendment);
  • Cutting education budgets, “dumbing down” public school curriculums, and harassing teachers, school administrators, and school board members;
  • Imposing work requirements on public assistance without regard to the needs and availability of suitable child care;
  • Deporting their parents to far away countries without concern for the welfare of children (US citizen and others);
  • Declaring “war” on vulnerable kids who aren’t heterosexuals;
  • Opposing provisions that would expand the availability of health insurance to kids;
  • Spreading misinformation about life-saving vaccines for children;
  • Falsely denying climate change that threatens the world we will leave to our kids and future generations; 
  • Spreading fear and terror in ethnic communities containing “mixed families” to discourage them from taking advantage of available community services; 
  • Threatening the educational rights of non-citizen children currently guaranteed by Plyler v. Doe (but perhaps not for long, if the Clarence Thomases of the world have their way);
  • Treating kids in Immigration Court as less than “persons” entitled to full due process (for example, forcing toddlers to “represent themselves” in life or death asylum cases);
  • Separating families;
  • Detaining families and children in grossly substandard conditions;
  • Making it more difficult for people of color to vote and thus exercise their legal and political rights;
  • Being more concerned about BLM protests than in the loss of young black lives that generated them.

I could go on an on.

One essential starting place and training ground for a “new generation” of Federal Judges who will be committed to humane values, empathy, accurate historical understanding, due process, and equal justice for all is the “retail level” of our justice system — the U.S. Immigration Courts, currently controlled solely by AG Merrick Garland. That’s why Garland’s disturbing failure to instill progressive values and install scholarly progressive judges — the best, brightest, and most courageous — in his now-dysfunctional EOIR system should be of grave concern to advocates of individual choices and anyone who cares about equal justice for all and the future of our nation!

The GOP-dominated Federal Judiciary has become a tool of authoritarians and religious zealots who seek to wipe out established individual rights, reduce humanity, and insert themselves and their out of touch views into every aspect of human existence — ultimately threatening the very future of humanity! 

The Dems, by contrast, are the party of individual rights and human freedom. Too bad they haven’t done a better job of selling, and sometimes of following and boldly acting upon, their own stated values! 

🇺🇸Due Process Forever!

PWS

07-15-22 

Related posts:

  1. 👩‍⚖️⚖️ONE MEAN☠️🤮⚰️ MOTHER: Soon-To-Be Justice Barrett’s Immigration Jurisprudence Shows Cruelty, Legal Ignorance, Lack Of Empathy For The Vulnerable Humans Whose Lives Are At Stake In An Unconstitutional System Rigged Against Them!
  2. CRIME BLOTTER: CHILD ABUSE🤮☠️⚰️🦹🏿‍♀️: DOJ IG REPORT CONFIRMS WHAT COURTSIDE & OTHERS KNEW FROM THE START: Trump, Sessions, Miller, Rosenstein, Hamilton Are Cowards🐓, Lying 🤥 Criminals, Child Abusers🦹🏿‍♀️, Who Belong Behind Bars For Intentionally Abusing Asylum Seeking Families & Kids & Then Having Their Sleazy DOJ Lawyers Lie To Federal Judges! — What Happened To “Due Diligence” As An Ethical Requirement For Government Lawyers?
  3. 🏴‍☠️☠️⚰️🤮👎🏻THE TRUMP REGIME & A CORRUPT SOLICITOR GENERAL HAVE CONDUCTED A WAR OF ATTRITION AGAINST AMERICAN LAWYERS ON THE FRONT LINES OF THE BATTLE TO SAVE DEMOCRACY — John Roberts & His GOP Buddies On The Supremes Have Aided, Abetted, & Encouraged It! — Constant Improper & Ethically Questionable Interference With Thoughtful, Legally Correct Lower Court Rulings Holding The Regime Accountable Have Demoralized The Profession’s Best & Bravest! — The Answer Is Better Judges For A Better America!
  4. 😰NO HAPPY NEW YEAR FOR FAMILIES IN “THE NEW AMERICAN GULAG”☠️⚰️ — As Kakistocracy Of War Criminals 🤮🏴‍☠️ Departs, Will President Biden Have The Wisdom & Guts To Move Beyond “The Dem Border Alarmists” & Get The Progressive Leaders 🦸🏽‍♂️⚖️ From The NDPA In Place To Bring Due Process & Order To The Border?🗽🇺🇸

⚖️FINALLY, 6TH CIRCUIT JUDGES WHO UNDERSTAND PD BLOW AWAY TRUMP USDJ’S TOTALLY UNWARRANTED PI AGAINST THE “MAYORKAS MEMO!” 

 

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca6-reverses-enforcement-memo-injunction-arizona-v-biden

CA6 Reverses Enforcement Memo Injunction: Arizona v. Biden

Arizona v. Biden

“In September 2021, the Secretary of Homeland Security issued a memorandum to his deputies outlining the Department’s immigration enforcement priorities and policies. Arizona, Montana, and Ohio filed this lawsuit in the Southern District of Ohio to enjoin its implementation. The district court issued a “nationwide preliminary injunction,” applicable to all 50 States, blocking the Department from relying on the priorities and policies in the memorandum in making certain arrest, detention, and removal decisions. Our court granted the National Government’s request for a stay pending appeal and ordered expedited briefing and argument. We now reverse the district court’s grant of preliminary injunctive relief.”

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

Great news! Finally, Federal Judges who understand PD and reject the White Nationalist BS and mythical (basically fabricated) “injuries” to states. Trump UDSDJs have been an almost unmitigated disaster (surprise). In this case, it was Trump appointee Judge John Michael Newman of the S.D. Ohio who let his righty ideology get in the way of settled law on the Executive’s authority to exercise prosecutorial discretion in immigration cases.

I highlighted the possibility of a long overdue positive intervention by the 6th Circuit, following oral argument, several weeks ago. https://wp.me/p8eeJm-7IH

Welcome as this decision is, it’s not going to have any immediate effect because: 1) the 6th Circuit had already stayed the PI pending appeal; 2) another out of control Trumpy USDJ in the SD Tex, Judge Drew B. Tipton, recently issued a totally unjustified decision purporting to “vacate”  the “Mayorkas Memo” nationwide. 

Nevertheless, there is some reason to hope that the compelling reasoning of this 6th Circuit decision along with the rationale of the Supremes’ recent decision in Texas v. Biden, rejecting a similar dilatory attempt by nativist state AGs to interfere with the Biden Administration’s termination of the abominable “Remain in Mexico” disgrace, will eventually end this frivolous litigation by GOP state AGs, aided and abetted by some Trump Federal Judges. See, e.g., https://wp.me/p8eeJm-7Lm

🇺🇸 Due Process Forever!

PWS

07-06-22

Related posts:

  1. WE KNOW THAT SESSIONS, WHITAKER, & BARR HAVE TURNED THE DOJ INTO A LEGAL, MORAL, PROFESSIONAL, & ETHICAL CESSPOOL — Some Federal Judges Are Beginning To Take Notice: “To say the least, it is disappointing that [DOJ] counsel, after consulting with other counsel including ‘prosecutors and appellate attorneys’ in this District’s United States Attorney’s office, submitted a legal memorandum to the Court that failed to acknowledge contrary case law that did not support its position.”
  2. ⚖️🗽🧑🏽‍⚖️COURTS OF APPEALS CONTINUE TO THROW ROTTEN TOMATOES 🍅 @ BIA’S ANTI-ASYLUM BIAS — Basic Analytical, Legal Errors Continue From Weaponized, Non-Expert “Star Chamber” ☠️ Posing As ”Tribunal!” — Judge Garland Must Fix This Inexcusable, Unnecessary, Systemic Failure Now! — Justice For Persons Of Color & Migrants Can’t “Wait For Godot!”
  3. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  4. TRASVINA RESTORES “PD” @ ICE; 6TH CIR. REJECTS CASTRO-TUM! BUT GARLAND’S FAILURES @ EOIR CONTINUE TO HAMPER BIDEN ADMINISTRATION, CAUSE CONFUSION, INCREASE BACKLOGS!  — “In performing their duties, including through implementation of this memorandum, OPLA attorneys should remain mindful that ‘[i]mmigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done.’” 

🇺🇸⚖️INDEPENDENCE = FREEDOM FROM THE FOUNDING FATHERS & THE GROTESQUE RIGHT WING “ORIGINALIST” BS 💩 THAT THREATENS OUR NATION’S FUTURE! — Paul Waldman @ WashPost

https://www.washingtonpost.com/opinions/2022/07/04/july-4-declare-independence-founding-fathers/

. . . .

We saw it in the recent Supreme Court decisions that supercharged the legal philosophy of “originalism” on abortion and guns. Reproductive rights, said Justice Samuel A. Alito Jr., are neither found in the explicit words of the Constitution nor “deeply rooted in the Nation’s history and traditions,” so they don’t exist as rights. As for states that want to regulate guns, said Justice Clarence Thomas, only regulations that have “a distinctly similar historical regulation” from the 18th century will be allowed. The America of 1789 becomes a prison the conservative justices can lock us all in whenever it suits them.

Originalism was a scam from the start, a foolproof methodology for conservatives to arrive at whatever judicial result matches their policy preferences: Cherry-pick a few quotes from the Federalist Papers, cite an obscure 1740 ordinance from the Virginia colony one of your clerks dug up, then claim that scripture leads us inexorably to only one outcome.

By happy coincidence, that outcome is always the one Republicans seek. Anyone who disagrees, or who shows how absurd the right’s historical analysis is even on its own terms, simply isn’t respecting the divine will of the framers.

. . . .

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

The “immigration/human rights/racial justice” community was one of the first to see the unconscionable human carnage and grotesque legal perversions produced by right-wing restrictionist/nativist politicos and judges. 

The “founding fathers” were, of course, folks who, for all their vision and achievements, recognized slavery was wrong but continued to exploit a slave society, enshrined slavery in our original Constitution, and even went so far as to define slaves as 3/5 of a person to insure their White owners could exercise disproportionate and unjustified political power while giving those whose labor and humanity they stole no political or legal rights whatsoever. 

In other words, these were complex, brilliant, yet deeply flawed and morally challenged individuals, who institutionalized and enshrined “dehumanization” or “de-personification” of “the other” because it was expedient and served their purposes. There was a limit to their vision, creativity, wisdom, and courage. It mostly extended only so far as “free, White men who owned property (including, of course, human property).”

The rest of society has been slow on the uptake and even slower on taking effective concerted action against the perils of far-right “originalism” and other bogus right-wing dogmas which have somehow obtained “fake legitimacy” and now threaten our nation and our world.

🇺🇸Due Process Forever!

PWS

07-05-22

Related posts:

  1. 🏴‍☠️CLOSING THE BORDER TO LEGAL ASYLUM SEEKERS IS A VIOLATION OF BOTH DOMESTIC & INTERNATIONAL LAW — It’s Neither Something To Tout (Biden Administration) Nor A Solution (GOP) (Except, Perhaps, In The “Hitlerian” Sense) — Our Inability To Solve A Humanitarian Situation By Acting Lawfully, Sensibly, & Humanely Is A Sign Of Gross National Weakness Spurred By Unwillingness To See The Human Tragedies We Are Promoting! — And The Lousy, Misleading, & Tone-Deaf Reporting By The Some Of The “Mainstream Media” Is Making It Worse! — Leon Krauze & Suzanne Gamboa With Simple Truths About Human Migration That Neither Pols Nor Nativists Want You To Hear! — PLUS BONUS COVERAGE: Friday Mini-Essay: “Degrading Ourselves As A Nation Won’t Stop Human Migration”
  2. ⚖️🗽SOCIAL JUSTICE SUNDAY @ COURTSIDE WITH PROF/REV CRAIG MOUSIN OF DEPAUL LAW — 1) Restore The Refugee Act Of 1980 To Functionality; 2) Let Young People Read — Enforce the 1st Amendment Against Far-Right Book Burners!🔥📚👩‍🚒
  3. PAUL WALDMAN @ WASHPOST: Why True Bipartisan Immigration Reform In Our National Interest Will Require “Regime Change:” “[I]t’s highly unlikely that we’ll achieve such reform, even reform most Republicans could live with, without both houses of Congress and the White House in Democratic hands. But that will happen sooner or later. Then we’ll see if we can get closer to a solution that everyone can live with over the long run.”
  4. JULY 4, 2020: Colbert I. King @ WashPost With a “Declaration of  Independence” For Our Time! 🗽👍🏼⚖️💥 — DUMP TRUMP! ☠️🤮⚰️👎🏻

🇺🇸🗽⚖️DAN RATHER: FIGHT THE ANTI-DEMOCRACY, ANTI-INDIVIDUAL-RIGHTS FAR RIGHT MINORITY 🏴‍☠️  — BEFORE IT’S TOO LATE:  “To all who feel bereft of hope, I offer the lessons of social movements of the past. Perseverance is power. Organizing inspires optimism. Resilience breeds results.”

 

Dan Rather
Dan Rather
American Journalist
PHOTO: Creative Courtside

FROM “STEADY” FOR July 1, 2022:

A HARD RIGHT TURN

By Dan Rather and Elliott Kirschner

As the United States Supreme Court wrapped up its spring term today, its marbled halls risked representing the setup to an ironic joke — albeit one not funny but rather cruel, dangerous, and foreboding.

The building is supposed to symbolize stability, fairness, and temperance. Instead, it has become headquarters for a majority group of highly partisan, reactionary players who make clear that they are uninhibited by history, precedent, or the will of the majority of the American people.

Their black robes are meant to convey modesty, humility, and wisdom. Yet this collection of politicians demonstrates the direct opposite.

This Supreme Court term will be remembered as the moment a cynical and anti-democratic movement, decades in the making, reached its zenith, empowered by bad faith and opportunism. Now the cabal lords its power over a broken political system from a perch of increased influence and lack of accountability.

This is power politics by unelected actors, appointed largely by men who lost the popular vote for president. Its path was paved by Mitch McConnell’s Machiavellian exploitation of the deaths of two justices. He was a master of shamelessness with a single purpose — to accomplish via judicial appointment what he could never have achieved through democratic means.

The damage he and his hard-right radicals have wrought touches all aspects of society, from abortion rights to commonsense gun control to the environment to what I believe is an overlooked evisceration of the separation of church and state. What we have are the ruins of what many took for granted as our constitutional rights. And nothing suggests these justices are anywhere near sated.

We have now firmly left behind the realm of the theoretical. This is real, and it will get only more so. For years there were those who warned that Roe wasn’t safe, and neither was anything else, that these justices were licking their chops to devour a modern America and spit out a distorted version of the past. Too many of these prophets were dismissed as hysterical, their fears histrionic and overblown. Surely, they were lectured, precedent matters. Certainly there would have to be some legal basis to rewrite America’s social contract and decades of settled rights.

Wrong.

All of you who spoke up, who tried to get others to pay attention, you deserve an apology.

There can be no hiding from it now. All of this is out in the open. The justices aren’t even trying to obscure what they are doing and where they intend to go. But in their transparent power plays, there are still faint glimmers of hope.

I hear from people who in the past had rarely talked about the court. Now, they are suddenly enraged. Many are focused on how, just today, the justices accepted a case for next year that could allow state legislatures to take a torch to fair elections. How many people in the past got so riled up about an upcoming court docket?

The Supreme Court relies on its reputation, and these days, its reputation for humility, fairness, and wisdom is in tatters. Its rulings increasingly seem to be far outside where most Americans are. Wait until they tackle contraception and the privacy of one’s bedroom.

To all who feel bereft of hope, I offer the lessons of social movements of the past. Perseverance is power. Organizing inspires optimism. Resilience breeds results.

In order to solve a problem, you first have to see it, name it, contend with its truth. That is the stage many are in now. But many others have already been there for a long time. This is a movement that already has leadership. Now it has momentum born from a desire to ensure that America goes forward, toward progress, and true to the Constitution and the will of its people.

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

The righty Supremes: “an ironic joke — albeit one not funny but rather cruel, dangerous, and foreboding.”

🇺🇸Due Process Forever! Take Back Our America From The Far Right Minority That Seeks To Suppress Human Rights & Individual Rights!

PWS

07-01-22

Related posts:

  1. ⚖️HON. SHIRA SCHEINDLIN👩🏻‍⚖️ @ THE GUARDIAN: Barrett Nomination Part & Parcel Of GOP Destruction Of American Democracy! 🏴‍☠️ – The Continued Erosion Of The Supremes & The Federal Judiciary Is Destroying Our Nation!👎
  2. 🏴‍☠️☠️🤮⚰️👎🏻 “PERP NATION” — DHS’S “NEW AMERICAN GULAG” IS A DEATH TRAP FOR MIGRANTS SEEKING JUSTICE — So Why Haven’t Congress & The Federal Courts Required DHS To Comply With The Constitution? — Because We Have The Wrong Folks In Congress & The Federal Courts!
  3. 🏴‍☠️☠️⚰️🤮👎🏻THE TRUMP REGIME & A CORRUPT SOLICITOR GENERAL HAVE CONDUCTED A WAR OF ATTRITION AGAINST AMERICAN LAWYERS ON THE FRONT LINES OF THE BATTLE TO SAVE DEMOCRACY — John Roberts & His GOP Buddies On The Supremes Have Aided, Abetted, & Encouraged It! — Constant Improper & Ethically Questionable Interference With Thoughtful, Legally Correct Lower Court Rulings Holding The Regime Accountable Have Demoralized The Profession’s Best & Bravest! — The Answer Is Better Judges For A Better America!
  4. CRIMES AGAINST HUMANITY🏴‍☠️☠️🤮👎🏻: Victims Of Trump, Miller, Sessions Child Abuse May Suffer Lifelong Damage Similar To That Of Holocaust Survivors! — “My mom and I have learned along the way that nothing seems to make it go away. Not her prayers. Not my ‘American Dream’ success. Not any logical explanation of how governments work or don’t work. My mother’s touch will always feel foreign to me.” — PLUS: BREAKING UPDATE: Just Released House Report Documents Regime’s Massive Human Rights Criminal Conspiracy Against CHILDREN!

😎⚖️🗽👍UNEXPECTED BOOST FOR DUE PROCESS & HUMANITY! — SUPREMES ALLOW BIDEN TO TERMINATE SCOFFLAW, CRUEL, FAILED “REMAIN IN MEXICO” TRAVESTY (A/K/A “LET ‘EM DIE ☠️⚰️IN MEXICO”) INITIATED BY TRUMP! — Biden v. Texas, Narrow 5-4 Majority Thwarts White Nationalist Initiative — C.J. Roberts (Opinion), joined by Justices Kavanaugh, Breyer, Sotomayor, & Kagan Save Humanity, Rule of Law, For Now! 

Here’s a link to the decision:

https://www.supremecourt.gov/opinions/21pdf/21-954_7l48.pdf

Here’s the Syllabus by Court staff:

(Slip Opinion) OCTOBER TERM, 2021 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BIDEN ET AL. v. TEXAS ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 21–954. Argued April 26, 2022—Decided June 30, 2022

In January 2019, the Department of Homeland Security began to implement the Migrant Protection Protocols (MPP). Under MPP, certain non-Mexican nationals arriving by land from Mexico were returned to Mexico to await the results of their removal proceedings under section 1229a of the Immigration and Nationality Act (INA). MPP was implemented pursuant to a provision of the INA that applies to aliens “arriving on land . . . from a foreign territory contiguous to the United States” and provides that the Secretary of Homeland Security “may return the alien to that territory pending a proceeding under section 1229a.” 8 U. S. C. §1225(b)(2)(C). Following a change in Presidential administrations, the Biden administration announced that it would suspend the program, and on June 1, 2021, the Secretary of Homeland Security issued a memorandum officially terminating it.

The States of Texas and Missouri (respondents) brought suit in the Northern District of Texas against the Secretary and others, asserting that the June 1 Memorandum violated the INA and the Administrative Procedure Act (APA). The District Court entered judgment for respondents. The court first concluded that terminating MPP would violate the INA, reasoning that section 1225 of the INA “provides the government two options” with respect to illegal entrants: mandatory detention pursuant to section 1225(b)(2)(A) or contiguous-territory re- turn pursuant to section 1225(b)(2)(C). 554 F. Supp. 3d 818, 852. Be- cause the Government was unable to meet its mandatory detention obligations under section 1225(b)(2)(A) due to resource constraints, the court reasoned, terminating MPP would necessarily lead to the systemic violation of section 1225 as illegal entrants were released into the United States. Second, the District Court concluded that the June 1 Memorandum was arbitrary and capricious in violation of the APA.

2

BIDEN v. TEXAS Syllabus

The District Court vacated the June 1 Memorandum and remanded to DHS. It also imposed a nationwide injunction ordering the Government to “enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under [section 1225] without releasing any aliens because of a lack of detention re- sources.” Id., at 857 (emphasis in original).

While the Government’s appeal was pending, the Secretary released the October 29 Memoranda, which again announced the termination of MPP and explained anew his reasons for doing so. The Government then moved to vacate the injunction on the ground that the October 29 Memoranda had superseded the June 1 Memorandum. But the Court of Appeals denied the motion and instead affirmed the District Court’s judgment in full. With respect to the INA question, the Court of Ap- peals agreed with the District Court’s analysis that terminating the program would violate the INA, concluding that the return policy was mandatory so long as illegal entrants were being released into the United States. The Court of Appeals also held that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.’ ” 20 F. 4th 928, 951.

Held: The Government’s rescission of MPP did not violate section 1225 of the INA, and the October 29 Memoranda constituted final agency action. Pp. 8–25.

(a) Beginning with jurisdiction, the injunction that the District Court entered in this case violated 8 U. S. C. §1252(f )(1). See Garland v. Aleman Gonzalez, 596 U. S. ___, ___. But section 1252(f )(1) does not deprive this Court of jurisdiction to reach the merits of an appeal even where a lower court enters a form of relief barred by that provision. Section 1252(f )(1) withdraws a district court’s “jurisdiction or authority” to grant a particular form of relief. It does not deprive lower courts of all subject matter jurisdiction over claims brought under sections 1221 through 1232 of the INA.

The text of the provision makes that clear. Section 1252(f )(1) deprives courts of the power to issue a specific category of remedies: those that “enjoin or restrain the operation of ” the relevant sections of the statute. And Congress included that language in a provision whose title—“Limit on injunctive relief ”—makes clear the narrowness of its scope. Moreover, the provision contains a parenthetical that explicitly preserves this Court’s power to enter injunctive relief. If section 1252(f )(1) deprived lower courts of subject matter jurisdiction to adjudicate any non-individual claims under sections 1221 through 1232, no such claims could ever arrive at this Court, rendering the specific carveout for Supreme Court injunctive relief nugatory.

Cite as: 597 U. S. ____ (2022) 3 Syllabus

Statutory structure likewise confirms this conclusion. Elsewhere in section 1252, where Congress intended to deny subject matter jurisdiction over a particular class of claims, it did so unambiguously. See, e.g., §1252(a)(2) (entitled “Matters not subject to judicial review”). Finally, this Court previously encountered a virtually identical situation in Nielsen v. Preap, 586 U. S. ___, and proceeded to reach the merits of the suit notwithstanding the District Court’s apparent violation of section 1252(f )(1). Pp. 8–13.

(b) Turning to the merits, section 1225(b)(2)(C) provides: “In the case of an alien . . . who is arriving on land . . . from a foreign territory contiguous to the United States, the [Secretary] may return the alien to that territory pending a proceeding under section 1229a.” Section 1225(b)(2)(C) plainly confers a discretionary authority to return aliens to Mexico. This Court has “repeatedly observed” that “the word ‘may’ clearly connotes discretion.” Opati v. Republic of Sudan, 590 U. S. ___, ___.

Respondents and the Court of Appeals concede that point, but urge an inference from the statutory structure: because section 1225(b)(2)(A) makes detention mandatory, they argue, the otherwise- discretionary return authority in section 1225(b)(2)(C) becomes mandatory when the Secretary violates that mandate. The problem is that the statute does not say anything like that. The statute says “may.” If Congress had intended section 1225(b)(2)(C) to operate as a mandatory cure of any noncompliance with the Government’s detention obligations, it would not have conveyed that intention through an unspoken inference in conflict with the unambiguous, express term “may.” The contiguous-territory return authority in section 1225(b)(2)(C) is discretionary—and remains discretionary notwithstanding any violation of section 1225(b)(2)(A).

The historical context in which section 1225(b)(2)(C) was adopted confirms the plain import of its text. Section 1225(b)(2)(C) was added to the statute more than 90 years after the “shall be detained” language that appears in section 1225(b)(2)(A). And the provision was enacted in response to a BIA decision that had questioned the legality of the contiguous-territory return practice. Moreover, since its enactment, every Presidential administration has interpreted section 1225(b)(2)(C) as purely discretionary, notwithstanding the consistent shortfall of funds to comply with section 1225(b)(2)(A).

The foreign affairs consequences of mandating the exercise of contiguous-territory return likewise confirm that the Court of Appeals erred. Interpreting section 1225(b)(2)(C) as a mandate imposes a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico, one that Congress likely did not intend section 1225(b)(2)(C) to impose. And finally, the availability of parole as an

4

BIDEN v. TEXAS Syllabus

alternative means of processing applicants for admission, see 8 U. S. C. §1182(d)(5)(A), additionally makes clear that the Court of Ap- peals erred in holding that the INA required the Government to continue implementing MPP. Pp. 13–18.

(c) The Court of Appeals also erred in holding that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.’ ” 20 F. 4th, at 951. Once the District Court vacated the June 1 Memorandum and remanded to DHS for further consideration, DHS had two options: elaborate on its original reasons for taking action or “ ‘deal with the problem afresh’ by taking new agency action.” Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___, ___. The Secretary selected the second option from Regents: He accepted the District Court’s vacatur and dealt with the problem afresh. The October 29 Memoranda were therefore final agency action for the same reasons that the June 1 Memorandum was final agency action: Both “mark[ed] the ‘consummation’ of the agency’s decisionmaking process” and resulted in “rights and obligations [being] determined.” Bennett v. Spear, 520 U. S. 154, 178.

The various rationales offered by respondents and the Court of Ap- peals in support of the contrary conclusion lack merit. First, the Court of Appeals erred to the extent it understood itself to be reviewing an abstract decision apart from the specific agency actions contained in the June 1 Memorandum and October 29 Memoranda. Second, and relatedly, the October 29 Memoranda were not a mere post hoc rationalization of the June 1 Memorandum. The prohibition on post hoc rationalization applies only when the agency proceeds by the first option from Regents. Here, the Secretary chose the second option from Re- gents and “issue[d] a new rescission bolstered by new reasons absent from the [June 1] Memorandum.” 591 U. S., at ___. Having returned to the drawing table, the Secretary was not subject to the charge of post hoc rationalization.

Third, respondents invoke Department of Commerce v. New York, 588 U. S. ___. But nothing in this record suggests a “significant mis- match between the decision the Secretary made and the rationale he provided.” Id., at ___. Relatedly, the Court of Appeals charged that the Secretary failed to proceed with a sufficiently open mind. But this Court has previously rejected criticisms of agency closemindedness based on an identity between proposed and final agency action. See Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U. S. ___, ___. Finally, the Court of Appeals erred to the extent it viewed the Government’s decision to appeal the District Court’s in- junction as relevant to the question of the October 29 Memoranda’s status as final agency action. Nothing prevents an agency from under- taking new agency action while simultaneously appealing an adverse

Cite as: 597 U. S. ____ (2022) 5 Syllabus

judgment against its original action. Pp. 18–25. 20 F. 4th 928, reversed and remanded.

ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. KAVANAUGH, J., filed a concurring opinion. ALITO, J., filed a dissenting opinion, in which THOMAS and GORSUCH, JJ., joined. BARRETT, J., filed a dissenting opinion, in which THOMAS, ALITO, and GORSUCH, JJ., joined as to all but the first sentence.

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Credit where credit is due. At least in this particular case, Chief Justice Roberts and the much-maligned Justice Kavanaugh probably have saved many lives of already-born humans. 

Breyer’s “Last Hurrah.” I think this was Justice Breyer’s last case, fittingly a victory for reasonableness and humanity. As of noon today, he was succeeded by Justice Ketanj Brown Jackson, the first African American female Justice! Good luck to her. I hope she can convince her right-wing colleagues to “do the right thing” on at least a few cases!

Not out of the woods yet? The case now goes back to to the 5th Circuit and a Trumpy USDJ — not the best forum for asylum applicants seeking justice. 

Will they do better? Ending the toxic, inhumane, and ineffective “Remain in Mexico Program” is one thing. Replacing it with a viable asylum adjudication system that will actually efficiently grant protection to the many refugees at our border who have been victims of a biased, anti-asylum, non-expert decision-making process is quite another. It starts with tossing the BIA and the many EOIR Judges who aren’t following asylum law and aren’t able to grant asylum and replacing them with real expert judges who can get the job done, positively guide Asylum Officers, and make sure they follow proper legal interpretations. To date, that’s been something that Garland and the Administration have been unwilling and/or unable to do — at least to the extent required to make due process, fundamental fairness, and the rule of law functional at our borders.

Glimmer of hope (maybe)? In her dissent, Justice Amy Coney Barrett went to great lengths to come up with reasons not to take jurisdiction over this “life or death” matter in its current posture. But, unlike the other three dissenters, she stated that she agreed with the majority “on the merits” of the case. That makes it at least possible that there could be as many as six potential votes for fair and humane treatment of asylum applicants by the Administration if the jurisdictional hurdle can be overcome. No guarantees. But something to think about — particularly in light of Alito’s snarky, White Nationalist nonsense and anti-immigrant myths reflected in his separate dissenting opinion. 

Alioto defines “rock bottom” judicial performance. For example, in the first paragraph of his dissent, Alito says this:

In fiscal year 2021, the Border Patrol reported more than 1.7 million encounters with aliens along the Mexican border.1 When it appears that one of these aliens is not admissible, may the Government simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided?

First he mis-states the law. By no means are all individuals who come to the border or are apprehended in the vicinity thereof entitled to “hearings” on admissibility. All of those without entry documents are subject to summary removal by a DHS Enforcement Agent. Only those who claim a fear of return to their home countries are entitled to an expeditious review of their claims by a (supposedly) well-trained Asylum Officer. Further, only those who establish the necessary “credible fear” of harm (or in some cases a “reasonable fear”) are entitled to have their cases for asylum determined on the merits by either an Asylum Officer or an EOIR Immigration Judge (or both). So, many of those appearing at the border are summarily removed without any hearings at all.

Thousands of those who pass credible fear and are awaiting “merits hearings” are imprisoned in DHS facilities in conditions that probably would fail constitutional scrutiny if applied to convicted felons. Those poor conditions are intended, at least in part, to demoralize and coerce individuals into abandoning claims for protection. They also exponentially decrease the chances of receiving competent pro bono representation and documenting and presenting their cases for life-preserving protection. This is significant, because they too often face EOIR judges with questionable expert judicial qualifications who are essentially “programmed to deny asylum.” Indeed, a “Garland gimmick” for recent arrivals — so-called “expedited dockets” — produced nearly 100% asylum denials as compared with the nationwide rate of 67%. For years, ICE detention centers, many of them operated by private contractors, have been notorious as places “where asylum cases go to die.” 

Contrary to the bogus implication of Alito’s statement that one has to “hope” that individuals show up for hearings, many have immigration bonds — some punatively high. When given a chance to obtain qualified representation, and thereby to understand the system and their obligations thereunder, the vast majority of asylum applicants voluntarily appear at their hearings (some many times due to the EOIR practice of  “Aimless Docket Reshuffling”), win or lose. And, perhaps not surprisingly, they succeed in winning their cases at rates that are many times higher than those forced to proceed without representation.

Indeed, a government actually interested in making the legal system work, rather than ginning up nativist myths about asylum seekers, would cut the “cruel and inhumane gimmicks” like “Remain in Mexico” and detention in the “New American Gulag” (NAG”) and instead invest in training competent pro bono or “low bono” representatives, temporarily resettling applicants to those jurisdictions with good NGOs and where the Immigration Judges are known to be scholarly and fair in evaluating asylum cases, and replacing poorly qualified Immigration Judges with experts able to competently perform these life or death functions at the “retail level” of our justice system in a fair and efficient matter consistent with due process.

Alito also repeats, apparently for prejudicial dramatic effect, the oft-used but potentially misleading figure of 1.7 million “encounters” by CBP. But, since the legal asylum system at our border was improperly dismantled by the Trump Administration, many of these represent the same individual or individuals, repeatedly encountered and illegally returned without any process whatsoever, who seek only the legal forum to present their claim to authorities to which they are entitled under both domestic and international law. This right has been systematically denied to them by both the Trump and Biden Administrations and by mal-functioning Federal Judges, at all levels, who have failed to uphold the rule of law as it applies to the most vulnerable among us. Additionally, a knowledgeable jurist would take any statistics furnished by the notoriously unreliable DHS with a “grain of salt.”

The lack of understanding of how immigration law operates, the nativist-driven misinterpretations by the Trump Administration embodied in this dissent, and the lack of intellectual integrity in furthering nativist myths and intentional exaggerations to describe a group of individuals who merely seek legal justice under both our laws and international standards is a graphic illustration of who does not belong on our highest Court. If we are really committed to equal justice and fundamental fairness in the American justice system, we should insist that all of those nominated for our Supreme Court demonstrate significant experience representing individual foreign nationals in the Immigration Courts — the “life or death retail level” of our justice system. 

Right now, those so-called “courts” are an embarrassing and dysfunctional “parody of justice” to which neither Justice Alito nor any of his colleagues would want to submit their own lives and futures or those of anyone they truly cared about. That’s the very definition of dehumanization and “Dred Scottification of the other” that Justice Alito seems so curiously eager to advance. Perhaps, that’s because he lacks the necessary empathy and perspective to see life from “the other side of the bench” as the rest of humanity does. 

I’d like to think that Alito is capable of change and growth. Most, if not all, humans are. After all, he’s appointed for life, so he isn’t going anywhere soon. But, I won’t hold my breath.

🇺🇸Due Process Forever!

PWS

06-29-30

 

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. ☠️👎DEATH PANEL: Billy The Bigot’s BIA Spends 34-Pages Stomping Every Aspect Of Claim By Victim Of Trump’s MPP — Matter of M-D-C-V-

“B-R- IS BS,” 💩 SAYS 2D CIR — No “Chevron Deference” For BIA’s Anti-Asylum “Dual Nationality” Interpretation That Violates INA’s Plain Meaning! — Zepeda-Lopez v. Garland

Kangaroo Courts
Asylum seekers, with their lives on the line, deserve fair, competent, experienced, nationally-recognized experts in asylum and immigration law as judges at all levels of EOIR, starting with the BIA. Instead, Garland appears to be running a refuge for the guy pictured above.  
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community:

CA2 Rejects Matter of B-R-: Zepeda-Lopez v. Garland

https://www.ca2.uscourts.gov/decisions/isysquery/6a8ade8c-1fdc-4eba-ba1f-bf50251bfade/1/doc/19-145_opn.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca2-rejects-matter-of-b-r–zepeda-lopez-v-garland#

“Petition for review of a decision of the Board of Immigration Appeals entered December 14, 2018, dismissing an appeal from the decision of an Immigration Judge denying asylum and the withholding of removal to petitioners, who are dual citizens of Honduras and Nicaragua, and their relatives. The agency denied relief based on Matter of B-R-, where the BIA held that to qualify as a “refugee” under the Immigration and Nationality Act, dual nationals must show persecution in both their countries of nationality. 26 I. & N. Dec. 119, 121 (B.I.A. 2013). The agency determined that while petitioners demonstrated persecution in Honduras, they did not show persecution in Nicaragua, and it concluded that they were not refugees and therefore not eligible for asylum. We grant the petition for review and hold that, to qualify as a “refugee” under the INA, a dual national asylum applicant need only show persecution in any singular country of nationality. PETITION GRANTED, BIA DECISION VACATED, AND CASE REMANDED. … We hold that to be considered a “refugee” under § 1101(a)(42)(A), a dual national need only show persecution in any singular country of nationality. Accordingly, we GRANT the petition for review, VACATE the BIA’s December 14, 2018, decision, and REMAND to the BIA for further proceedings in accordance with the proper legal standard. …  [T]he INA unambiguously requires an applicant for asylum to show well-founded fear of persecution in any one country of the applicant’s nationality rather than in all such countries. … As the statutory text unambiguously provides that dual nationals need show persecution only in any singular country of nationality to qualify as a refugee under the INA, we need not defer to the BIA’s interpretation of § 1101(a)(42)(A). In any event, the BIA’s interpretation is unreasonable; Matter of B-R- required dual nationals to show well-founded fear of persecution in both countries of nationality. 26 I. & N. Dec. at 121. Such a reading is manifestly contrary to the text of the INA.”

[Hats way off to Christina Colón Williams and Jon Bauer!]

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Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

I once used a similar fact situation as a final exam question in my “Refugee Law & Policy” class at Georgetown Law. It tested whether students could spot and develop a possible “Chevron challenge” to Matter of B-R-! I’m going to give the 2d Circuit an “A” on this one! The BIA gets an “F.”

Prior to B-R-, I had one of these cases in Arlington. I granted based on the plain meaning of the statute. I think the DHS waived appeal.

Bad law/bad policy/bad judging. In Matter of B-R-, the BIA stretched and ignored the statute to find a way to deny asylum to a journalist threatened by the Chavez Government of Venezuela — no “friend” of the U.S! He had little apparent contact with Spain, of which the IJ found he was a dual national, other than that his father was born there.

The respondents in Zepeda-Lopez were found to have suffered persecution in Honduras. They were ordered removed to Nicaragua, a country with a horrible human rights record and whose government has been condemned by the U.S.

Why would a competent BIA ignore the statutory language and misinterpret the law to achieve such highly problematic (one might argue downright dumb) results when a better, legally correct interpretation — merely following the statute (not “rocket science” 🚀) — would have produced more sensible results? 

One possible conclusion: The BIA is “preprogrammed” to consider “denial of protection” under a statute designed for protection as the “preferred result.” Consequently, they will manipulate and misconstrue the law (and sometimes facts) to achieve removals that make neither legal nor policy sense.

With lots of better qualified, fair asylum experts out there who could be BIA judges, why is Garland employing the “B-Team” (at best) mostly selected by his predecessors, in these important, non-life-tenured quasi-judicial positions?

America needs a fair, functional, generous, realistic, practical asylum system. It’s not achievable without a massive and much needed shakeup at the BIA and the trial courts at EOIR!

Bad judging, from the bottom to the very top of our justice system, by those disconnected from both the law and the human consequences of their lousy decisions, is helping to rip our nation apart. Garland has a golden opportunity to fix the “retail level” of our judiciary at EOIR. Why isn’t he getting the job done? Can our nation live with the consequences of his failure?

🇺🇸 Due Process Forever!

PWS

06-29-22

Related posts:

  1. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  2. 😎WIN ONE, LOSE ONE☹️:  9TH CIR. ANNIHILATES MATTER OF ARMENDAREZ-MENDEZ (SUA SPONTE REOPENING), WHILE 11TH  CIR. WOODENLY ENDORSES 👎🏻 MATTER OF L-E-A- (NEXUS)!☠️⚰️
  3. 🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!
  4. 🆘🤮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! 🏴‍☠️

⚖️ THE GIBSON REPORT — Compiled By Elizabeth Gibson, Esquire, Managing Attorney, NIJC: Stephen Miller Was Even More Of A Disreputable Scofflaw! — 9th Halts BIA’s “Rote Formula” For Improperly Denying CAT W/O Meaningful Analysis — EOIR In Louisiana Continues To Be “Death Valley” ☠️⚰️  For Asylum Seekers:  “‘I feel that the big problem we face today is that there is a real dehumanization of the entire process,’ said Mich Gonzalez, Associate Director of Advocacy at the Southern Poverty Law Center.”

Elizabeth Gibson
Elizabeth Gibson
Managing Attorney
National Immigrant Justice Center
Publisher of “The Gibson Report”

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Weekly Briefing

 

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

 

CONTENTS (jump to section)

  • ◦NEWS
  • ◦LITIGATION & AGENCY UPDATES
  • ◦RESOURCES
  • ◦EVENTS

 

PRACTICE UPDATES

 

Reminder: Mayorkas Enforcement Priorities Memo No Longer in Effect as of 6/24/22

The 6/10/22 order in Texas v. United States vacating the memo went into effect 6/24/22 and has not been stayed at this time. Regardless of the memo, it is important to continue arguing that prosecutorial discretion is a longstanding executive power and DHS retains the ability to join motions, stipulate to relief, etc. See Practice Alert: Judge Tipton Issues Decision Vacating Mayorkas Enforcement Priorities Memo.

 

Some USCIS Field Office Return to Requiring Masks

USCIS: Where community levels are high, all federal employees and contractors—as well as visitors two years old or older—must wear a mask inside USCIS offices and physically distance regardless of vaccination status. Check CDC Level for Your Field Office.

 

NEWS

 

ICE Detains About 23,400 at End of June While Agency’s Electronic Monitoring Program Grows to 280,000

TRAC: After hovering around 20,000 for several months, Immigration and Customs Enforcement’s detained population reached 23,390 on June 19, 2022—down slightly from the start of the month but still higher than in previous months. About three-quarters (74 percent) of people in detention were arrested by Customs and Border Protection (CBP). The number of immigrants arrested by ICE saw a modest but steady increase up to a total of 5,979. See also GAO: Alternatives to Detention: ICE Needs to Better Assess Program Performance and Improve Contract Oversight; Meet SmartLINK, the App Tracking Nearly a Quarter Million Immigrants.

 

Detained Immigrant Women Are Facing A Grueling Abortion Struggle

Bustle: At a base level, the abortion restrictions detained women face are similar to the ones that low-income women face across the country because of the Hyde Amendment. For more than 40 years, the Hyde Amendment has prevented women on Medicaid from using federally funded insurance to pay for abortions, except in cases of rape, incest, or danger to the mother’s life. The same type of language exists in appropriations bills and healthcare regulations for all facets of the federal government, including the Immigration and Customs Enforcement agency.

(This article is from 2017, but for an update, compare this list of detention centers with this map of abortion laws.)

 

Border Patrol paroles migrants to avoid massive overcrowding

AP: The Border Patrol paroled more than 207,000 migrants who crossed from Mexico from August through May, including 51,132 in May, a 28% increase from April, according to court records. In the previous seven months, it paroled only 11 migrants.

 

US on course to welcome 100,000 Ukrainians fleeing war this summer

Guardian: At least 71,000 Ukrainians have entered the US since March, with Joe Biden’s pledge to welcome 100,000 people fleeing the Russian invasion on track to be met over the summer.

 

Decades’ Worth of Unused Immigrant Visas Salvaged in House Bill

Bloomberg: The amendment, which faces a long path to the finish line in the appropriations process, would allow DHS to recapture family and employment-based visas that went unused due to bureaucratic snags, processing delays, and other disruptions since 1992.

 

State Department Denies Substantial Percentage of Employer-Sponsored Immigrant Visas

AIC: Data analyzed by the Cato Institute shows that since Fiscal Year 2008, USCIS denied about 8% of employer-sponsored immigrants while the average denial rate by consular officers was 63%.

 

White House To Release Final DACA Rule In August

Law360: The Biden administration announced plans to issue a final Deferred Action for Childhood Arrivals rule by August and continue its efforts to undo multiple Trump-era regulations. Here are the main immigration highlights from the administration’s regulatory agenda for spring 2022.

 

Virginia budget to move funding from DACA students to state’s HBCUs

WaPo: Critics of the measure say it perpetuates a false scarcity problem at a time when Virginia has a budget surplus, and it demands that lawmakers sacrifice one needy group of students for another.

 

Revelations Show Trump Immigration Policy Was Supposed To Be Harsher

Forbes: In a new book describing her years during the Trump administration, former Education Secretary Betsy DeVos revealed a plan by Stephen Miller to identify children at school for deportation under the pretext of checking for gang members.

 

Feds Agree To Improve Emergency Shelters For Migrant Kids

Law360: The Biden administration has agreed to impose new living and sanitary standards on temporary emergency facilities housing hundreds of migrant children to resolve advocates’ claims that it was holding minors in unsafe and unsanitary conditions.

 

Louisiana immigration judges denied 88% of the asylum cases between 2016 and 2021: here’s why

The Advocate: Immigration judges in Louisiana have denied asylum claims at a higher rate than almost any other courts in the nation over the past five years, according to federal data. However, a new federal rule might downsize their role in asylum proceedings.

 

LITIGATION & AGENCY UPDATES

 

The 4 remaining Supreme Court cases of this blockbuster term

CNN: The justices are considering whether the Biden administration can terminate a Trump-era border policy known as “Remain in Mexico.” Lower courts have so far blocked Biden from ending the policy.

 

SCOTUS sends B-Z-R- Mental Health PSC Case back to CA10

SCOTUS: The petition for a writ of certiorari is granted.  The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Tenth Circuit for further consideration in light of Matter of B-Z-R-, 28 I&N Dec. 563  (A.G. 2022).

 

Matter of Nchifor, 28 I&N Dec. 585 (BIA 2022)

BIA: A respondent who raises an objection to missing time or place information in a notice to appear for the first time in a motion to reopen has forfeited that objection.

 

3rd Circ. Rejects Immigration Ruling Over Pa. Eluding Law

Law360: A Dominican man got a new chance to fight his deportation on Tuesday when the Third Circuit ruled that his felony conviction under Pennsylvania’s fleeing and eluding law didn’t necessarily amount to a crime of moral turpitude.

 

CA5 on Statutory Birthright Citizenship: Garza-Flores v. Mayorkas

LexisNexis: For years, Petitioner Javier Garza-Flores did not believe he had a valid claim to U.S. citizenship. But now he thinks that he does. And he has presented documentary evidence sufficient to demonstrate, at a minimum, a genuine issue of material fact concerning his claim of U.S. citizenship. That is enough to warrant a factual proceeding before a federal district court to determine his citizenship.

 

CA7 Menghistab v. Garland

CA7: The Board’s main quibble was with the relevance of that evidence to an Ethiopian citizen, which it assumed Menghistab to be. But that assumption was not warranted on the record that was before the Board. Denying the motion to reopen without a full hearing addressing Menghistab’s citizenship and its materiality to his risk of torture was therefore an abuse of discretion.

 

9th Circ. Says BIA Erred In Not Considering All Torture Risks

Law360: The Ninth Circuit on Friday granted a Salvadoran’s request to have the Board of Immigration Appeals review claims that he would be tortured if sent back to the Central American country, saying the board originally failed to consider all possible risk sources.

 

CBP Settles FOIA Suit Over Foreign Pot Workers Policy

Law360: U.S. Customs and Border Protection and Davis Wright Tremaine LLP have settled a Freedom of Information Act suit the firm filed over reports the agency decided Canadian cannabis workers weren’t eligible to enter the U.S., which led to an overturned internal document contradicting officials.

 

Construction Worker Reported To ICE Wins $650K At Trial

Law360: A Boston federal jury has found a construction company and its owner liable for retaliating against an employee by reporting him to immigration authorities after his on-the-job injury triggered a workplace investigation, awarding $650,000 in damages.

 

INA 212(a)(9)(B) Policy Manual Guidance

USCIS: A noncitizen who again seeks admission more than 3 or 10 years after the relevant departure or removal, is not inadmissible under INA 212(a)(9)(B) even if the noncitizen returned to the United States, with or without authorization, during the statutory 3-year or 10-year period

 

Biden administration halts limits on ICE arrests following court ruling

CBS: While the suspension of ICE’s arrest prioritization scheme is unlikely to place the country’s estimated 11 million unauthorized immigrants in immediate danger of being arrested, the absence of national standards could lead to inconsistent enforcement actions across the U.S., including arrests of immigrants whom agents were previously instructed not to detain, legal experts said.

 

ICE’s Enforcement and Removal Operations COVID-19 Pandemic Response Requirements

ICE: Deletion: The new facility status determination framework replaces the language limiting population capacity to 75%.

 

RESOURCES

 

 

EVENTS

 

NIJC EVENTS

 

 

GENERAL EVENTS

 

 

To sign up for additional NIJC newsletters, visit:  https://immigrantjustice.org/subscribe.

 

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.

 

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

 

 

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Stephen Miller Monster
Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
  • According to a new book from former Trump Education Secretary Betsy DeVos:

“Over the din of patrons slurping lattes and crunching salads, Miller’s men described a plan to put U.S. Immigration and Customs Enforcement (ICE) agents into schools under the pretext of identifying MS-13 gang members. The plan was, when agents checked students’ citizenship status for the alleged purpose of identifying gang ties, they could identify undocumented students and deport them. Not only was the prospect of this chilling, but it was also patently illegal. Nate and Ebony turned them down cold. But that didn’t stop Stephen Miller from subsequently calling me to get my thoughts on the idea. 

  • For years, the BIA has had standard practice of giving short shrift to potentially valid claims for protection under the Convention Against Torture (“CAT”). Without meaningful analysis they simply cite John Ashcroft’s infamous “no CAT precedent” in Matter of J-F-F-,  23 I&N Dec. 912 (A.G. 2006), requiring that “each link in the chain of torture be proved to be probable.” 

Since there is almost always some allegedly “weak link in the chain” that’s an “easy handle” for denial.  Also, The IJ and the BIA can “lengthen the chain” or ignore the evidence as necessary to “get to no.” In the process, compelling evidence of likelihood of torture from qualified expert witnesses is either ignored or minimized — again, without much analysis. That’s how the “denial factory” in Falls Church can keep churning out CAT rejections even to countries where torture is rampant and either furthered or willfully ignored by the repressive governments.

At least in the 9th Circuit, the BIA will now have to go “back to the drawing board” for denying CAT and returning  individuals to countries where torture with government participation or acquiescence is likely. The 9th Circuit case rejecting the BIA’s “formula for denial” is Velasquez-Samayoa v. Garland. Here’s a link in addition to the one provided by Elizabeth.  https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca9-on-cat-velasquez-samayoa-v-garland

  • Louisiana has long been one of a number of EOIR “courts” — these are actually “prison courts” — where “asylum cases go to die.” The deadly combination of bad Immigration Judges, lack of skilled immigration attorneys able to take these cases pro bono, coercive use of detention in out of the way places in substandard conditions, a “denial oriented” BIA stacked by the Trump DOJ and not “unstacked by Garland,” and an indolent, often virulently anti-asylum 5th Circuit add up to potential death sentences for individuals who could gain protection under a system where due process and fundamental fairness were respected and followed.

As the report in The Advocate referenced by Elizabeth shows, Garland has failed to reform and improve this blot on American justice. And, there is little chance that assigning the cases to USCIS Asylum Office in the first instance under new regulations in this intentionally toxic environment is going to promote justice or efficiency. 

One might view the wide discrepancy between “positive credible fear findings” and asylum grants in Immigration Court as a sign of a sick and dying EOIR, not lack of merit for the claims. With less detention, more representation, better Immigration Judges, and a new BIA of true asylum experts willing to grant protection rather than “engineer rejection,” I’ll bet that many, perhaps a majority, of the outcomes would be more favorable to applicants. 

As noted by Mitch Gonzalez of the SPLC in the article, “dehumanization,” “de-personification,” and “Dred Scottification,” along with cruelty are the objects of what’s going on at EOIR in Louisiana. The “fit” with the Trump/Miller White Nationalist anti-immigrant program is obvious. What’s less obvious is why Garland and the Biden Administration haven’t intervened to make the necessary changes to restore EOIR in Louisiana and elsewhere to at least some semblance of a fair and impartial “court system.” 

🇺🇸Due Process Forever!

PWS

06-28-22

Related posts:

  1. REGIME’S NEWEST SCHEME TO SCREW ASYLUM SEEKERS: BOGUS REGS THAT WOULD ILLEGALLY & UNNECESSARILY EXTEND THE GROUNDS OF “MANDATORY DENIAL,” DECREASE ADJUDICATOR DISCRETION, & SHAFT REFUGEE FAMILIES — Regime’s Outlandish “Efficiency Rationale” Fails to Mask Their Cruelty, Racism, Fraud, Waste, & Abuse – Julia Edwards Ainsley (NBC News) & Dean Kevin R. Johnson (ImmigrationProf Blog) Report
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  4. 🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!

🚙🏞HEADING FOR THE HILLS: RADICAL ACTIVIST, RIGHTY, GOP SUPREMES EMPOWER GUNS, STRIP WOMEN OF RIGHTS, HEAD OUT FOR SUMMER VACATION, LEAVING BEHIND CHAOS & A DARK CLOUD HANGING OVER OUR DEMOCRACY’S FUTURE!😱

Dana Milbank
Dana Milbank
Opinion Columnist
Washington Post

Dana Milbank @ WashPost:

https://www.washingtonpost.com/opinions/2022/06/25/roe-guns-supreme-court-radicals-maximum-chaos/

Nobody should be surprised that the Supreme Court’s conservative justices on Friday jettisoned nearly 50 years of precedent upon precedent in overturning Roe v. Wade. Heck, they didn’t even honor their own precedent articulated 24 hours earlier.

In their opinion Thursday morning forcing New York and other densely populated states to allow more handguns in public, the conservative majority, led by Justice Clarence Thomas, argued that medieval law imposing arms restrictions — specifically, the 1328 Statute of Northampton — “has little bearing on the Second Amendment” because it was “enacted … more than 450 years before the ratification of the Constitution.”

Yet in their ruling Friday morning in Dobbs v. Jackson Women’s Health, setting women’s rights back half a century (and cracking the door to banning same-sex marriage and contraception), the conservative justices, led by Samuel Alito (who was also in the guns majority) and joined by Thomas, argued precisely the opposite. They justified abortion bans by citing, among others, “Henry de Bracton’s 13th-century treatise.” That was written circa 1250 and referred to monsters, duels, burning at the stake — and to women as property, “inferior” to men.

The right-wing majority’s selective application of history reveals the larger fraud in this pair of landmark rulings: Their reasoning is not legal but political, not principled but partisan.

Still, there is a commonality to the rulings. Both decisions foment maximum chaos and were delivered with flagrant disregard for the instability and disorder they will cause.

Ruth Marcus: The radical conservative majority’s damage to the Supreme Court cannot be undone

The high court was meant to be the guarantor of law and order. But the conservative justices, intoxicated by their supermajority, have abandoned their solemn duty to promote stability in the law and are actively spreading real-world disruption.

Worse, this invitation to disorder comes as the nation is trying to restore the rule of law after a coup attempt led by a president who appointed three of the five justices in the abortion majority. The spouse of a fourth — Ginni Thomas, Clarence’s wife — aggressively pushed state legislators and the White House to overthrow the election. Yet Thomas, the senior associate justice, has refused to recuse himself from related cases.

After decades of crocodile tears over imagined “judicial activism,” the conservative supermajority has shed all judicial modesty and embraced radicalism. The liberal justices, Sonia Sotomayor, Elena Kagan and Stephen G. Breyer, wrote in their Dobbs dissent that the majority’s brazen rejection of stare decisis, respect for precedent, “breaches a core rule-of-law principle, designed to promote constancy in the law.”

Opinion: The Supreme Court’s radical abortion ruling begins a dangerous new era

Even Chief Justice John G. Roberts Jr., who joined the gun ruling, scolded fellow conservatives for blithely overturning the Roe v. Wade super-precedent. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed,” Roberts wrote. The majority’s “dramatic and consequential ruling is unnecessary,” he said, “a serious jolt to the legal system” that could have been avoided with a narrower decision that would have been “markedly less unsettling.”

Alito, in his (characteristically) sneering opinion in the abortion case, dismissed Roberts as unprincipled and public opinion as an “extraneous” concern. He likewise dismissed the pain the ruling would cause, writing that “this Court is ill-equipped to assess ‘generalized assertions about the national psyche.’ ” He washed his hands of answering the “empirical question” of “the effect of the abortion right … on the lives of women.”

. . . .

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

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

It would be tempting to breathe a “sigh of relief” that while off on their taxpayer-underwritten summer frolic, the “Gang of 6” can’t do any more damage to our Constitution, our nation, our institutions, or humanity. But, unfortunately, that’s not completely true. If and when their party calls on them, they can always go into “emergency session.” 

So let’s hope that there will be no further “emergencies” this summer other than the disorder and divisions already caused by their disingenuous political decrees masquerading as (very thinly to tragicomically inept and inconsistent) “jurisprudence.”

Still, those who enjoy their humanity and their rights (other than gun rights)  shouldn’t get too complacent. Vacation will end; the Supremes will be back at it in October — looking for more ways to turn back the clock and “Dred Scottify the other,” even though the majority of Americans actually are “some kind of other.” With a little help from their GOP friends, they will disenfranchise and dehumanize one group at a time until rights and political power look largely like they did in 1789 — when free White men of property ruled.

As for CJ Roberts, after years of trying to put a “genial spin” on the mockery of a fair, impartial, and qualified judiciary incubating at his Supremes, he has totally lost control of the far-right extremists appointed by his party and, in some cases, pushed through the process in a highly irregular manner. Hard to have much sympathy there. 

🇺🇸Due Process Forever!

PWS

06-27-22

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⚖️🗽SOCIAL JUSTICE SUNDAY @ COURTSIDE WITH PROF/REV CRAIG MOUSIN OF DEPAUL LAW — 1) Restore The Refugee Act Of 1980 To Functionality; 2) Let Young People Read — Enforce the 1st Amendment Against Far-Right Book Burners!🔥📚👩‍🚒

Craig Mousin

pastedGraphic.png

  • cmousin@depaul.edu
  • Ombudsperson
  • Refugee and Forced Migration Studies, Grace School of Applied Diplomacy

Craig Mousin has been the University Ombudsperson at DePaul since 2001. He received a BS from Johns Hopkins University, a JD from the University of Illinois, Urbana-Champaign, and an M Div from Chicago Theological Seminary. He joined the College of Law faculty in 1990, and served as the Executive Director of the Center for Church/State Studies until 2001, Acting Director until 2003, and co-director from 2004–2007. Mousin co-founded and continues to participate in the Center’s Interfaith Family Mediation Program. He has taught in DePaul’s School of Continuing and Professional Studies, the Religious Studies Department, the Grace School of Applied Diplomacy, and the Peace, Justice and Conflict Studies program. He has also taught as an adjunct faculty member at the University of Illinois College of Law and Chicago Theological Seminary .

Prior to DePaul, he began practicing labor law at Seyfarth, Shaw, Fairweather & Geraldson in 1978. In 1984, Mousin founded and directed the Midwest Immigrant Rights Center, a provider of legal assistance to refugees which has since become the National Immigrant Justice Center. He also directed legal services for Travelers & Immigrants Aid between 1986 and 1990. The United Church of Christ ordained him in 1989. At that time, Wellington Avenue U.C.C. called him as an Associate Pastor. He was a founding co-pastor of the DePaul Ecumenica l Gathering (1996-2001). Mousin serves as a Life Trustee of the Chicago Theological Seminary. In addition, he is a member of the Leadership Council of the National Immigrant Justice Center, a member of the Leadership Council of the Marjorie Kovler Center for Survivors of Torture, a former President and member of the Board of the Eco-Justice Collaborative, and a former President and Board member of the Immigration Project of downstate Illinois. Mousin is a current member of the ABA Dispute Resolution Section Ombuds Committee. 

Craig writes:

Comment: Paul,

You might be interested in a short interview I did with Chicago FOX news on World Refugee Day. I tied the celebration in with the honoring of Juneteenth. See:

https://nam10.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.fox32chicago.com%2Fvideo%2F1083587&data=05%7C01%7CCMOUSIN%40depaul.edu%7C657c113c57fc4b47977008da54895361%7C750d3a3f1f464da28a647605e75ea2f9%7C0%7C0%7C637915246031565627%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=R4WzOvpSp5k92DO8NgWD2IQjGyHBoEyq7krkBY82ESY%3D&reserved=0

Also, I do not know if you subscribe to my podcast, Lawful Assembly, but my last post tied together censorship of books in public schools with anti-immigrant sentiments. You can listen at:

https://lawfulassembly.buzzsprout.com/1744949/10803534-episode-27-stop-the-burning

All the best,

Craig

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

Thanks, Craig, for all you do. 

Today’s WashPost Outlook Section contained a highly relevant article by author Dave Eggers about how far-right zealots — many with no real stake in our public schools — have taken over at local levels and apply extreme censorship — even to books and concepts that have been successfully and routinely taught for years. https://www.washingtonpost.com/outlook/2022/06/24/dave-eggers-book-bans-south-dakota/

In this case, it’s driving experienced teachers who believe in truth, freedom, and individual rights to flee in droves. So, what we’re really seeing is a shocking “dumbing down” of American education, libraries, and public discourse driven by far right fear-mongers seeking to impose their lack of values and intolerance on others.

We have seen this week how far-right activist extremists, from the Supremes to local politicians and school boards, have elevated guns that kill while gutting the individual rights to free speech, equal protection,  and fundamental fairness guaranteed by the 1st, 5th, and 14th Amendments. 

Justice Clarence Thomas is certainly a horrible jurist. But, in this instance he might be the only honest GOP appointee on the Supremes. 

When Thomas says that immigrants’ human rights, gay rights, right to conception, marriage rights and most other meaningful individual rights guaranteed by the Constitution are on the chopping block, progressives had better believe him. Remember how “leaving things to the states” worked out for African Americans and other minorities attempting to exercise their fundamental rights, even after the Civil War and the 13th, 14th, and 15th Amendments. And, remember all those paeons to precedent and “not to worry” about Roe statements under oath from GOP Supremes’ candidates before they actually took their seats on the Court and started scheming to undo abortion rights for political, not legal, reasons!

“Social Justice Warriors” like Craig have been fighting the good fight for decades. But, at this point, it’s going to depend on the NDPA and other young progressive groups to take on the extremist right at the ballot box and to take back their individual rights — really all of our individual rights.

Otherwise, they will find themselves as a disempowered counterculture, hiding out and trying to keep ahead of Ray Bradbury’s firemen in Fahrenheit 451!

🇺🇸 Due Process Forever!

PWS

06-26-22

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⚖️🗽SATURDAY MINI-ESSAY: ONE TINY STEP FOR MANKIND: But It’s Going To Take Much More Than Finally Replacing A Few Stunningly Unqualified Judges To Save EOIR!

Four Horsemen
Anti-Asylum Judges In Action! Factual distortions, ignoring evidence, and misapplications of the law are some of the “weapons” wielded by some EOIR judges to stop asylum seekers from getting the life-saving legal protections they deserve! Article III Courts can compound the problem by mis-using “deference” to avoid critical examination of the frequent abuses of humanity and the rule of law inflicted by this parody of a court system.
Albrecht Dürer, Public domain, via Wikimedia Commons

ONE TINY STEP FOR MANKIND: But It’s Going To Take Much More Than Finally Replacing A Few Stunningly Unqualified Judges To Save EOIR!

By Paul Wickham Schmidt

Courtside Exclusive

June 25, 2022

Over the last few weeks the long overdue and essential process of weeding out poorly qualified Immigration Judges — still on “probation” at EOIR — finally got off to a very modest start. 

Imagine yourself as a refugee fighting for your life in an asylum system that’s already stacked against you and where the “judges” work for the Attorney General, part of the Executive Branch’s political and law enforcement apparatus. 

How would you like your life to be in the hands of (now) former Immigration Judge Matthew O’Brien. He was appointed in 2020 by former AG Bill Barr — a staunch defender of the Trump/Miller White Nationalist, xenophobic, anti-immigrant agenda.

Nativism A “Qualification?”

What made O’Brien supposedly “qualified” to be a “fair and impartial” administrative judge? 

Was it his enthusiastic support for the cruel, inhumane, illegal, and unconstitutional “policy” of family separation? See, e.g., https://www.fairus.org/issue/border-security/truth-about-zero-tolerance-and-family-separation-what-americans-need-know.

Thankfully, O’Brien will pass into history. But, the damage inflicted by the “official policy of child abuse” will adversely affect generations.

Or, perhaps it was O’Brien’s intimate connection with a leading nativist group. Immediately prior to his appointment, he was the “Research” Director for the Federation for American Immigration Reform (“FAIR”) — a group renowned for sloppy to non-existent “research” and presenting racially-motivated myths and fear mongering as “facts.” 

Here’s a “debunking” of some of their bogus claims by Alex Nowrasteh @ CATO Institute — hardly a “liberal think tank!” https://www.cato.org/blog/fairs-fiscal-burden-illegal-immigration-study-fatally-flawed.

As noted by Nowrasteh, that’s not the only example of FAIR providing “bogus research papers” designed to “rev up hate” and demean the contributions of immigrants both documented and undocumented.

Indeed, recent legitimate scholarly research, based on facts and statistics rather than personal bias, refutes the anti-immigrant myths peddled by FAIR and other nativist shill groups. See, e.g., https://immigrationcourtside.com/2022/06/13/%f0%9f%93%9abooks-streets-of-gold-americas-untold-story-of-immigrant-success-by-ran-abramitzky-and-leah-boustan-reviewed-by-michael-luca-washpost/.

The Anti-Defamation League (“ADL”), one of America’s most venerable anti-hate, anti-misinformation groups, founded more than a century ago “To stop the defamation of the Jewish people and to secure justice and fair treatment to all,” had this to say about O’Brien’s former employer:

While the majority of the extreme anti-immigrant sentiment in the U.S. emanates from fringe groups like white supremacists and other nativists, there are a number of well-established anti-immigrant groups such as Federation for American Immigration Reform (FAIR), Center for Immigration Studies (CIS), NumbersUSA and The Remembrance Project which have secured a foothold in mainstream politics, and their members play a major role in promoting divisive, dangerous rhetoric and views that demonize immigrants. A number of these groups have attempted to position themselves as legitimate advocates against “illegal immigration” while using stereotypes, conspiracy theories and outright bigotry to disparage immigrants and hold them responsible for a number of societal ills.  A decade ago, most of this bigotry was directed primarily at Latino immigrants, but today, Muslim and Haitian immigrants, among others, are also targeted.

. . . .

There is a distinct anti-immigrant movement in this country, whose roots can be traced back to the 1970s. Groups such as the Federation for American Immigration Reform (FAIR) and Center for Immigration Studies (CIS) hope to influence general audiences with somewhat sanitized versions of their anti-immigrant views. In their worldview, non-citizens do not enjoy any status or privilege, and any path to citizenship for undocumented immigrants or refugees is portrayed as a threat to current citizens. Like some other problematic movements, the anti-immigrant movement also has a more extreme wing, which includes border vigilante groups, as well as groups and individuals that seek to demonize immigrants by using racist, sometimes threatening language.

https://www.adl.org/resources/report/mainstreaming-hate-anti-immigrant-movement-us

Insurmountable Bias

So, perhaps, you say, once actually “on the bench,” Judge O’Brien was able to overcome his biases and knowledge gaps and function as a fair and impartial judicial officer. Nope! Not in the cards!

According to TRAC, O’Brien denied almost every asylum case he heard (96.4% denials). That was, astoundingly, nearly 40% above the average of his colleagues in Arlington and nearly 30% higher than the nationwide asylum denial rate of approximately 67%.

But, to put this in perspective, we have to recognize that this denial rate had already been intentionally and artificially increased by a expanded,”packed,” politicized, “weaponized,” and intentionally “dumbed down” EOIR during the Sessions/Barr era at DOJ. For example, approximately 10 years ago, more than 50% of asylum, cases were being granted annually nationwide, and approximately 75% of the asylum cases in Arlington were granted. See, e.g., https://trac.syr.edu/immigration/reports/judge2014/00001WAS/index.html. And, even then, most asylum experts would have said that the nationwide grant rate was too low.

Gaming The System For Denial

It’s not that conditions in “refugee/asylum sending” countries have gotten better over the past decade! Far from it! The refugee situation today is as bad as it has ever been since WWII and getting worse every day. 

So, why would legal refugee admissions be plunging to record lows (despite a rather disingenuous “increase in the refugee ceiling” by the Biden Administration) and asylum denials up dramatically over the past decade? 

It has little or nothing to do with asylum law or the realities of the worldwide refugee flow, particularly from Latin American and Caribbean countries. No, it has to do with an intentional move, started under Bush II, tolerated or somewhat encouraged in the Obama Administration, but greatly accelerated during the Trump-era, to “kneecap” the legal refugee and asylum processing programs. Indeed, the “near zeroing-out” of refugee and asylum admissions and the illegal replacement of Asylum Officers by totally unqualified CBP Agents by the Trump Administration are two of the most egregious examples. 

This was “complimented” by an intentional move to weaponize the Immigration Courts at EOIR as a tool of Stephen Miller’s White Nationalist immigration enforcement regime. The number of Immigration Judges doubled, hiring was expedited using an opaque and intentionally restrictive process, and most new appointees were from the ranks of prosecutors — some with little or no experience in asylum law. Even conservative commentators like Nolan Rappaport at The Hill expressed grave concerns about the problematic qualifications of many of the new hires.  See, e.g., https://immigrationcourtside.com/2020/02/05/no-expertise-necessary-at-the-new-eoir-immigration-judges-no-longer-need-to-demonstrate-immigration-experience-just-a-willingness-to-send-migrants-to-potential/.

Ironically, the EOIR backlog tripled. Under the “maliciously incompetent management” of the Trump group at DOJ, more judges actually meant more backlog! How is that giving taxpayers “value” for their money?

Some of the new judges, like O’Brien and some of the Immigration Judges “elevated” to the BIA, were appointed specifically because of their established records of anti-asylum bias, rude treatment of attorneys, and dehumanizing treatment of asylum seekers and other migrants. 

“Ignorance And Contempt”

It’s not like O’Brien was just your “garden variety” “conservative jurist.”  (I’ve actually worked with many of the latter over the years). No, he was notorious for his lack of scholarship, rudeness, and bias!

Here are a few of the comments he received on “RateYourJudge.com:”

      • “Rarely grants cases. No knowledge of the law, only there to deny cases. He needs to be removed.”

    • “Biased judge, hates immigrants and even kids of immigrants.”
    • “Incompetent.”
    • “One of the most condescending and self-righteous judges I have had the displeasure to hear. His word choice and tone left absolutely no doubt that he considered the Respondent to be beneath his notice, even to the point of referring to her as “the female Respondent” and to her domestic partner as a “paramour”. I have heard other judges’ oral opinions on very similar sets of facts, and they were accomplished in a fifth of the time with no loss of dignity to anyone.”
    • “This guy’s ignorance about immigration law and contempt for the people who appear before him is staggering. The way he threatens lawyers is reprehensible. EOIR is a disgrace.”
    • “Horrible human being with no business being on the bench. Shame on EOIR for allowing him to continue adjudicating cases.”
    • “Late, abusive, made up his mind before the case even started, frequently interrupted testimony, yelled at immigrants and their lawyer, and refused to listen to anything we said. Ignorant of the law and facts of the case. He should go back to directing hate groups.”
    • “If I could give 0 stars I would.”

https://www.ratemyimmigrationjudge.com/listing/hon-matthew-j-obrien-immigration-judge-arlington-immigration-court/

To be fair:

  • Among the stream of negative comments there were three “positive” comments about O’Brien;
  • Most of the comments both positive and negative were “anonymous” or apparent user “pseudonyms;”
  • “RateMyImmigrationJudge” is neither comprehensive nor transparent.

Flunking the “Gold Standard”

So, was O’Brien really as horrible as most experts say? Let’s do another type of “reality check.” 

Among the other IJs at the Arlington Immigration Court, two stand out as widely respected expert jurists who have served for decades across Administrations of both parties. Judge John Milo Bryant was first appointed as an Immigration Judge in 1987 under the Reagan Administration. Judge Lawrence Owen Burman was appointed in 1998 under the Clinton Administration. With 66 years of judicial service between them, they would be considered more or less the “gold standard” for well-qualified, subject matter expert, fair and impartial Immigration Judges.

Significantly, according to the last TRAC report, O’Brien’s asylum grant rate of 3,6% was  approximately 1/15th of Judge Bryant’s and approximately 1/22 of Judge Burman’s. https://trac.syr.edu/immigration/reports/judgereports/. Case closed! O’Brien should never have been on a bench where asylum seekers lives were at stake and expertise and fairness are supposed to be job requirements!

“Worse Than O’Brien”

What about now former Arlington Immigration Judge David White who was removed at the same time as O’Brien? Apparently, during his relatively short tenure (appointed by Barr in 2020), White was unable to deny enough asylum to qualify for TRAC’s system (100 decisions minimum). 

Yet, he made an indelible impression on those “sentenced” to appear before him. Here are comments from RateMyImmigrtionJudge.com:

    • “This judge is absolutely terrible. Unfair and biased. He is only here to deny asylum cases regardless of what the person has been through. Completely misstates the facts, doesn’t know the law so goes after credibility (using those misstated facts) as an excuse to say there’s no past persecution. Absolute disgrace.”

    • “Worst judge ever. The clerks at the Immigration Court told the private bar attorneys that they have NEVER seen this judge approve an asylum case. Not one. They have running bets and jokes about him, but he never grants. He writes the denial during the trial instead of listening to the person testify. He is insulting and rude and not at all compassionate about trauma.”

    • “This is the worst immigration judge in Arlington, hands down. He’s even worse than O’Brien, and O’Brien is an former hate-group director.”

    • “Terrible immigration judge. Had his mind made up well before our hearing. Came in with a prewritten denial that misstated the law. Was rude and dismissive about my client’s trauma.”

Wow! Worse than O’Brien. That’s quite an achievement.

GOP Court Packing

Fact is, the overt politicization, “weaponization,” and “dumbing down” of the Immigration Courts goes back nearly two decades to AG John Ashcroft and the Bush II Administration. Ashcroft reduced the size of the BIA as a gimmick to “purge” the supposedly “liberal” judges — those, including me, who voted to uphold the legal rights of migrants against government overreach. In other words, our “transgression” was to stand up for due process and the individual rights of immigrants — actually “our job” as properly defined.

And, the downward spiral has continued. The DOJ Office of Inspector General (“OIG”) actually confirmed some of the Bush II improper Immigration Judge hires. But, they avoided dealing with the “BIA purge” that got the ball rolling downhill at EOIR! The GOP has been much more skillful than Dems in reshaping the Immigration Courts to their liking.

During the Trump Administration, putting clearly unqualified IJs who were some of rudest highest denying in America on the BIA was certainly “packing” and “stacking” EOIR against legitimate asylum seekers. Again, however, the OIG failed to “seal the deal” regarding this outrageous conduct that has undermined our entire justice system, fed uncontrollable backlog, and cost human lives that should and could have been saved. 

Trump’s “court packing scheme” was no “small potatoes” matter, even if some in the Biden Administration are willfully blind to the continuing human rights and due process disaster at EOIR.

Removing two of the most glaringly unqualified Barr appointees in Arlington is a very modest step by AG Garland in the right direction. But, it’s going to take more, much more, decisive action to clean out the unqualified and the deadwood, bring in true expertise and judicial quality, and restore even a modicum of legitimacy and integrity at EOIR.

Reactionaries’ Predictably Absurdist Reaction 

Meanwhile, even this long overdue, well justified, and all too minimal change at EOIR produced totally absurdist reactions from O’Brien and fellow nativists (including some still “hiding out in plain sight” at DOJ) which were picked up by the Washington Times (of course). Don’t believe a word of it!

To understand what really happened and how small this step really was, get the truth in this analysis from Media Matters.  https://www.mediamatters.org/washington-times/washington-times-pushes-absurd-claim-biden-court-packing-immigration-courts

Tip Of The Iceberg

The removal of guys like O’Brien and White — who never had any business being placed in “quasi-judicial” positions where they exercised life or death authority over refugees of color whose humanity and legal rights they refused to recognize, is just a beginning. The ethical, competence, and judicial attitude rot at EOIR goes much deeper. 

Garland has been dilatory in “cleaning house” at EOIR. Vulnerable individuals who were wrongly rejected rather than properly protected have needlessly suffered, and probably even died, as a result. Poor Immigration Judging and lack of effective, correct, courageous, positive asylum guidance by the BIA has helped fuel a human rights disaster and rule of law collapse at the border!

Perhaps, at long last, Garland has slowly started fixing the unconscionable and unnecessary dysfunction and  intentionally ingrained institutional bias at EOIR. But, I’ll believe it when I see it!

Keep Up The Pressure

In the meantime, it’s critical that NDPA members: 1) keep applying for EOIR judgeships; and 2) ratchet up the pressure and demand the removal of all unqualified Immigration Judges and Appellate Immigration Judges who are undermining sound scholarship, due process, fundamental fairness, and human dignity at EOIR!

Human rights matter! Individual rights matter! Immigrants’ rights matter! Good judges matter!

Today, we are surrounded by too many bad judges, at all levels of our justice system, who reject the first three in favor of warped far-right ideologies, dangerous myths, and disregard for human dignity. The existential battle to get good judges into our system has begun. And, Immigration Courts are the primary theater of action! 

Due Process Forever!

PWS

06-25-22

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  4. 👍🏼⚖️🗽MAJORITY OF ASYLUM SEEKERS WIN THEIR CASES, EVEN IN A BROKEN & BIASED  SYSTEM INTENTIONALLY STACKED AGAINST THEM — But, Only, If They Can Get To A “Merits Adjudication!” — Nativist Lies, Myths, Driving USG Policies Exposed! — Why USCIS & EOIR Self-Created Backlogs Primarily Shaft Those Deserving Legal Protection Of Some Type!

🤮SUPREMES SAY FOREVER IMPRISONMENT IN GULAG OK UNDER INA — DUCK 🦆CONSTITUTIONAL ISSUE — JUSTICE THOMAS ANNOUNCES PLANS TO REWRITE HISTORY & STRIP IMMIGRANTS OF CONSTITUTIONAL RIGHTS, THUS CHANNELING NATIVISTS’ DREAMS OF A FULLY FASCIST AMERICA!🏴‍☠️

C’mon now!

(Let’s lock the door and throw away the key now)

(shom-dooby-dom, dooby-dom-dom)

— Jay and the Americans, 

“Let’s Lock the Door (And Throw Away the Key),” 1965

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

Johnson v. Ortega-Martinez

https://www.supremecourt.gov/opinions/21pdf/19-896_2135.pdf

SYLLABUS BY COURT STAFF:

Syllabus

JOHNSON, ACTING DIRECTOR OF U. S. IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL. v. ARTEAGA-MARTINEZ

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 19–896. Argued January 11, 2022—Decided June 13, 2022

Respondent Antonio Arteaga-Martinez is a citizen of Mexico who was re- moved in July 2012 and reentered the United States in September 2012. U. S. Immigration and Customs Enforcement (ICE) issued a warrant for Arteaga-Martinez’s arrest in 2018. ICE reinstated Arte- aga-Martinez’s earlier removal order and detained him pursuant to its authority under the Immigration and Nationality Act. See 8 U. S. C. §1231(a). Arteaga-Martinez applied for withholding of removal under §1231(b)(3), as well as relief under regulations implementing the Con- vention Against Torture, based on his fear that he would be persecuted or tortured if he returned to Mexico. An asylum officer determined he had established a reasonable fear of persecution or torture, and the Department of Homeland Security referred him for withholding-only proceedings before an immigration judge.

After being detained for four months, Arteaga-Martinez filed a peti- tion for a writ of habeas corpus in District Court challenging, on both statutory and constitutional grounds, his continued detention without a bond hearing. The Government conceded that Arteaga-Martinez would be entitled to a bond hearing after six months of detention based on circuit precedent holding that a noncitizen facing prolonged deten- tion under §1231(a)(6) is entitled by statute to a bond hearing before an immigration judge and must be released unless the Government establishes, by clear and convincing evidence, that the noncitizen poses a risk of flight or a danger to the community. The District Court granted relief on Arteaga-Martinez’s statutory claim and ordered the Government to provide Arteaga-Martinez a bond hearing. The Third Circuit summarily affirmed. At the bond hearing, the Immigration

2 JOHNSON v. ARTEAGA-MARTINEZ Syllabus

Judge considered Arteaga-Martinez’s flight risk and dangerousness and ultimately authorized his release pending resolution of his appli- cation for withholding of removal.

Held: Section 1231(a)(6) does not require the Government to provide noncitizens detained for six months with bond hearings in which the Government bears the burden of proving, by clear and convincing evi- dence, that a noncitizen poses a flight risk or a danger to the commu- nity. Pp. 4–10.

(a) Section 1231(a)(6) cannot be read to require the hearing proce- dures imposed below. After the entry of a final order of removal against a noncitizen, the Government generally must secure the noncitizen’s removal during a 90-day removal period, during which the Government “shall” detain the noncitizen. 8 U. S. C. §§1231(a)(1), (2). Beyond the removal period, §1231(a)(6) defines four categories of noncitizens who “may be detained . . . and, if released, shall be subject to [certain] terms of supervision.” There is no plausible construction of the text of §1231(a)(6) that requires the Government to provide bond hearings with the procedures mandated by the Third Circuit. The statute says nothing about bond hearings before immigration judges or burdens of proof, nor does it provide any other indication that such procedures are required. Faithfully applying precedent, the Court cannot discern the bond hearing procedures required below from §1231(a)(6)’s text. Pp. 4–6.

(b) Arteaga-Martinez argues that §1231(a)(6)’s references to flight risk, dangerousness, and terms of supervision, support the relief or- dered below. Similarly, respondents in the companion case, see Gar- land v. Gonzalez, 594 U. S. ___, analogize the text of §1231(a)(6) to that of 8 U. S. C. §1226(a), noting that noncitizens detained under §1226(a) have long received bond hearings at the outset of detention. Assuming without deciding that an express statutory reference to “bond” (as in §1226(a)) might be read to require an initial bond hearing, §1231(a)(6) contains no such reference, and §1231(a)(6)’s oblique reference to terms of supervision does not suffice. The parties agree that the Gov- ernment possesses discretion to provide bond hearings under §1231(a)(6) or otherwise, but this Court cannot say the statute re- quires them.

Finally, Arteaga-Martinez argues that Zadvydas v. Davis, 533 U. S. 678, which identified ambiguity in §1231(a)(6)’s permissive language, supports a view that §1231(a)(6) implicitly incorporates the specific bond hearing requirements and procedures imposed by the Court of Appeals. In Zadvydas, this Court construed §1231(a)(6) “in light of the Constitution’s demands” and determined that §1231(a)(6) “does not permit indefinite detention” but instead “limits an alien’s post-re- moval-period detention to a period reasonably necessary to bring about

Cite as: 596 U. S. ____ (2022) 3 Syllabus

that alien’s removal from the United States.” 533 U. S., at 689. The bond hearing requirements articulated by the Third Circuit, however, reach substantially beyond the limitation on detention authority Zadvydas recognized. Zadvydas does not require, and Jennings v. Ro- driguez, 583 U. S. ___, does not permit, the Third Circuit’s application of the canon of constitutional avoidance. Pp. 6–8.

(c) Constitutional challenges to prolonged detention under §1231(a)(6) were not addressed below, in part because those courts read §1231(a)(6) to require a bond hearing. Arteaga-Martinez’s alter- native theory that he is presumptively entitled to release under Zadvydas also was not addressed below. The Court leaves these argu- ments for the lower courts to consider in the first instance. See Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7. Pp. 8–10.

Reversed and remanded.

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, KAGAN, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined as to Part I. BREYER, J., filed an opinion concurring in part and dissenting in part.

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

I suppose the only good news here is:

  • The Constitutional issue remains viable (but, don’t hold your breath); and
  • Nobody else joined Thomas’s astounding, anti-historical, anti-
    American bogus arguments on stripping immigrants of all due process rights and leaving their fate entirely in the hands of politicos.

Yet, the fact that an individual with views as outrageous, legally and morally wrong, and deeply anti-American as Thomas sits on our highest Court says something is seriously wrong with our justice system and our democracy.

Also outrageously, Thomas called for the overruling of Zadvydas v. Davis, an important case that prevents the Government from subjecting certain deportable, but unremovable, individuals to lifetime “civil imprisonment and punishment” in the “New American Gulag.”

🇺🇸Due Process Forever!

PWS

06-13-22

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🏴‍☠️👎🏽 IDEOLOGICALLY SPLIT SUPREMES USE “NATIONAL SECURITY FICTION” TO FREE BORDER PATROL AGENTS FROM RESPONSIBILITY FOR VIOLATIONS OF INDIVIDUAL RIGHTS! — EGBERT v. BOULE 

https://www.supremecourt.gov/opinions/21pdf/21-147_g31h.pdf

Syllabus by Court staff:

EGBERT v. BOULE

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 21–147. Argued March 2, 2022—Decided June 8, 2022

Respondent Robert Boule owns a bed-and-breakfast—the Smuggler’s Inn—in Blaine, Washington. The inn abuts the international border between Canada and the United States. Boule at times helped federal agents identify and apprehend persons engaged in unlawful cross-bor- der activity on or near his property. But Boule also would provide transportation and lodging to illegal border crossers. Often, Boule would agree to help illegal border crossers enter or exit the United States, only to later call federal agents to report the unlawful activity.

In 2014, Boule informed petitioner Erik Egbert, a U. S. Border Pa- trol agent, that a Turkish national, arriving in Seattle by way of New York, had scheduled transportation to Smuggler’s Inn. When Agent Egbert observed one of Boule’s vehicles returning to the inn, he sus- pected that the Turkish national was a passenger and followed the ve- hicle to the inn. On Boule’s account, Boule asked Egbert to leave, but Egbert refused, became violent, and threw Boule first against the ve- hicle and then to the ground. Egbert then checked the immigration paperwork for Boule’s guest and left after finding everything in order. The Turkish guest unlawfully entered Canada later that evening.

Boule filed a grievance with Agent Egbert’s supervisors and an ad- ministrative claim with Border Patrol pursuant to the Federal Tort Claims Act (FTCA). Egbert allegedly retaliated against Boule by re- porting Boule’s “SMUGLER” license plate to the Washington Depart- ment of Licensing for referencing illegal activity, and by contacting the Internal Revenue Service and prompting an audit of Boule’s tax re- turns. Boule’s FTCA claim was ultimately denied, and Border Patrol took no action against Egbert for his use of force or alleged acts of re- taliation. Boule then sued Egbert in Federal District Court, alleging a Fourth Amendment violation for excessive use of force and a First Amendment violation for unlawful retaliation. Invoking Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, Boule asked the Dis- trict Court to recognize a damages action for each alleged constitu- tional violation. The District Court declined to extend Bivens as re- quested, but the Court of Appeals reversed.

Held: Bivens does not extend to create causes of action for Boule’s Fourth Amendment excessive-force claim and First Amendment retaliation claim. Pp. 5–17.

(a) In Bivens, the Court held that it had authority to create a dam- ages action against federal agents for violating the plaintiff’s Fourth Amendment rights. Over the next decade, the Court also fashioned new causes of action under the Fifth Amendment, see Davis v. Pass- man, 442 U. S. 228, and the Eighth Amendment, see Carlson v. Green, 446 U. S. 14. Since then, however, the Court has come “to appreciate more fully the tension between” judicially created causes of action and “the Constitution’s separation of legislative and judicial power,” Her- nández v. Mesa, 589 U. S. ___, ___, and has declined 11 times to imply a similar cause of action for other alleged constitutional violations, see, e.g., Chappell v. Wallace, 462 U. S. 296; Bush v. Lucas, 462 U. S. 367. Rather than dispense with Bivens, the Court now emphasizes that rec- ognizing a Bivens cause of action is “a disfavored judicial activity.” Ziglar v. Abbasi, 582 U. S. ___, ___.

The analysis of a proposed Bivens claim proceeds in two steps: A court asks first whether the case presents “a new Bivens context”—i.e., is it “meaningfully different from the three cases in which the Court has implied a damages action,” Ziglar, 582 U. S., at ___, and, second, even if so, do “special factors” indicate that the Judiciary is at least arguably less equipped than Congress to “weigh the costs and benefits of allowing a damages action to proceed.” Id., at ___. This two-step inquiry often resolves to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy. Further, under the Court’s precedents, a court may not fash- ion a Bivens remedy if Congress already has provided, or has author- ized the Executive to provide, “an alternative remedial structure.” Ziglar, 582 U. S., at ___. Pp. 5–8.

(b) The Court of Appeals conceded that Boule’s Fourth Amendment claim presented a new Bivens context, but its conclusion that there was no reason to hesitate before recognizing a cause of action against Agent Egbert was incorrect for two independent reasons. Pp. 9–13.

(1) First, the “risk of undermining border security provides reason to hesitate before extending Bivens into this field.” Hernández, 589 U. S., at ___. In Hernández, the Court declined to create a damages remedy for an excessive-force claim against a Border Patrol agent be- cause “regulating the conduct of agents at the border unquestionably has national security implications.” Id., at ___. That reasoning applies with full force here. The Court of Appeals disagreed because it viewed Boule’s Fourth Amendment claim as akin to a “conventional” exces- sive-force claim, as in Bivens, and less like the cross-border shooting in Hernández. But that does not bear on the relevant point: Permitting suit against a Border Patrol agent presents national security concerns that foreclose Bivens relief. Further, the Court of Appeals’ analysis betrays the pitfalls of applying the special-factors analysis at too gran- ular a level. A court should not inquire whether Bivens relief is appro- priate in light of the balance of circumstances in the “particular case.” United States v. Stanley, 483 U. S. 669, 683. Rather, it should ask “[m]ore broadly” whether there is any reason to think that “judicial intrusion” into a given field might be “harmful” or “inappropriate,” id., at 681. The proper inquiry here is whether a court is competent to authorize a damages action not just against Agent Egbert, but against Border Patrol agents generally. The answer is no. Pp. 9–12.

(2) Second, Congress has provided alternative remedies for ag- grieved parties in Boule’s position that independently foreclose a Bivens action here. By regulation, Border Patrol must investigate “[a]lleged violations” and accept grievances from “[a]ny persons.” 8 CFR §§287.10(a)–(b). Boule claims that this regulatory grievance pro- cedure was inadequate, but this Court has never held that a Bivens alternative must afford rights such as judicial review of an adverse determination. Bivens “is concerned solely with deterring the uncon- stitutional acts of individual officers.” Correctional Services Corp. v. Malesko, 534 U. S. 61, 71. And, regardless, the question whether a given remedy is adequate is a legislative determination. As in Her- nández, this Court has no warrant to doubt that the consideration of Boule’s grievance secured adequate deterrence and afforded Boule an alternative remedy. See 589 U. S., at ___. Pp. 12–13.

(c) There is no Bivens cause of action for Boule’s First Amendment retaliation claim. That claim presents a new Bivens context, and there are many reasons to think that Congress is better suited to authorize a damages remedy. Extending Bivens to alleged First Amendment vi- olations would pose an acute “risk that fear of personal monetary lia- bility and harassing litigation will unduly inhibit officials in the dis- charge of their duties.” Anderson v. Creighton, 483 U. S. 635, 638. In light of these costs, “Congress is in a better position to decide whether or not the public interest would be served” by imposing a damages ac- tion. Bush, 462 U. S., at 389. The Court of Appeals’ reasons for ex- tending Bivens in this context—that retaliation claims are “well-estab- lished” and that Boule alleges that Agent Egbert “was not carrying out official duties” when the retaliation occurred—lack merit. Also lacking merit is Boule’s claim that this Court identified a Bivens cause of ac- tion under allegedly similar circumstances in Passman. Even assum- ing factual parallels, Passman carries little weight because it predates the Court’s current approach to implied causes of action. A plaintiff cannot justify a Bivens extension based on “parallel circumstances” with Bivens, Passman, or Carlson—the three cases in which the Court has implied a damages action—unless the plaintiff also satisfies the prevailing “analytic framework” prescribed by the last four decades of intervening case law. Ziglar, 582 U. S., at ___–___. Pp. 13–16.

998 F. 3d 370, reversed.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, KAVANAUGH, and BARRETT, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment. SOTOMAYOR, J., filed an opinion con- curring in the judgment in part and dissenting in part, in which BREYER and KAGAN, JJ., joined.

KEY QUOTE FROM JUSTICE SOTOMAYOR’S CONCURRENCE DISSENT (joined by Justices Breyer and Kagan):

This Court’s precedents recognize that suits for damages play a critical role in deterring unconstitutional conduct by federal law enforcement officers and in ensuring that those whose constitutional rights have been violated receive meaningful redress. The Court’s decision today ignores our repeated recognition of the importance of Bivens actions, particularly in the Fourth Amendment search-and-seizure context, and closes the door to Bivens suits by many who will suffer serious constitutional violations at the hands of federal agents. I respectfully dissent from the Court’s treat- ment of Boule’s Fourth Amendment claim.

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

Thus, the Border Patrol is free to egregiously violate Constitutional rights of citizens and other “persons” in the U.S. without meaningful accountability. But, I suppose it’s what one might expect from a right-majority Court that generally views rights of corporations and guns as fundamental while treating most individual rights of persons in the U.S. as expendable.

As for Justice Thomas’s ludicrous suggestion that filing a complaint with the CBP hierarchy is a “remedy” for wrongdoing? That’s in the “sick joke” category as anyone who has actually tried to file such a complaint would know.  See, e.g., https://www.nbcnews.com/politics/immigration/aclu-asks-dhs-take-action-complaints-abuse-misconduct-u-s-n1259657. Clearly, Thomas and his colleagues live in a privileged “parallel universe” where they have never had to rely on the DHS’s internal bureaucracy for redress of Constitutional violations!

As cogently pointed out by Justice Sotomayor, the majority’s intentional misuse and mischaracterization of the “national security fiction” to immunize government conduct from meaningful review in a case that actually has little or nothing to do with national security or foreign relations should also be of grave concern to all of us. Right-wing judges’ propensity to use “fictions” and “pretexts” to mask their real intent and to arrive at preconceived results is a major exercise in intellectual dishonesty!

It also reinforces my observation that it is wrong to keep appointing Justices who lack personal experience with representing individuals within our broken, dysfunctional, and often lawless immigration bureaucracy, which currently includes the U.S. Immigration “Courts” at EOIR. In many professions and occupations, the “future movers and shakers” are required to “start at the retail level” — like the rest of us — so that they understand their “customers'” needs, wants, expectations, problems, and concerns. Why do we exempt our most powerful judges from this “basic training” in delivering justice to human beings at the “retail level” of our justice system?

While many folks are too blind to see it, the lack of informed judicial oversight of the Constitutional performance of DHS, DOJ, DHS, DOS, DOL and the rest of the often underperforming USG immigration bureaucracy undermines the Constitutional rights of everyone in America, including citizens! 

Life-tenured Federal Judges might act as if they are “immunized” and “above the fray” (also, to a disturbing extent, above the law and our Constitution, particularly where migrants are concerned). Meanwhile, it’s “the people’s rights” that are on the chopping block with an unprincipled “out of touch” far-right judiciary too often wielding the ax!

🇺🇸 Due Process Forever!

PWS

06-09-22

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