"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Turning this group loose on asylum seekers is an act of gross legal, judicial, and political malpractice by the Biden Administration and Merrick Garland! https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
“Here, the IJ and BIA found, and the government does not dispute, that Espinoza-Ochoa credibly testified that he experienced harm and threats of harm in Guatemala that “constitute[d] persecution.” But the agency concluded that Espinoza-Ochoa was still ineligible for asylum for two reasons. First, it held that Espinoza-Ochoa had failed to identify a valid PSG because the social group he delineated, “land-owning farmer, who was persecuted for simply holding [the] position of farmer and owning a farm, by both the police and gangs in concert,” was impermissibly circular. Second, the IJ and BIA each held that, regardless of whether his asserted PSG was valid, the harm Espinoza-Ochoa experienced was “generalized criminal activity” and therefore was not on account of his social group. We conclude that the BIA committed legal error in both its PSG and nexus analyses. We first explain why Espinoza-Ochoa’s PSG was not circular and then evaluate whether his PSG was “at least one central reason” for the harm he suffered. Ultimately, we remand to the agency to reconsider both issues consistent with this opinion. … For all these reasons, we agree with Espinoza-Ochoa that legal error infected both the PSG and nexus analyses below. Accordingly, we GRANT the petition, VACATE the decision below, and REMAND for further proceedings consistent with this opinion.”
[Hats way off to Randy Olen!]
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You’ve been reading about this damaging, deadly legal travesty going on during Garland’s watch:
How outrageous, illegal, and “anti-historical” are the Garland BIA’s antics? The classic example of Marxist-Leninist revolutionary persecutions involve targeting property owners, particularly landowners. Indeed, in an earlier time, the BIA acknowledged that “landowners” were a PSG. See, e.g., Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).
But, now in intellectually dishonest decisions, the BIA pretzels itself, ignores precedent, and tortures history in scurrilous attempts to deny obvious protection. These bad decisions, anti-asylum bias, and deficient scholarship infect the entire system.
It makes cases like this — which couldand should have easily been granted in a competent system shortly after the respondent’s arrival in 2016 — hang around for seven years, waste resources, and still be on the docket.
This is a highly — perhaps intentionally — unrecognized reason why the U.S. asylum asylum system is failing today. It’s also a continuing indictment of the deficient performance of Merrick Garland as Attorney General.
Obviously, these deadly, festering problems infecting the entire U.S. justice system are NOT going to be solved by taking more extreme enforcement actions against those whose quest for fair and correct asylum determinations are now being systematically stymied and mishandled by the incompetent actions of the USG, starting with the DOJ!
The author of Between the World and Me on why this isn’t 1968, the Colin Kaepernick test, police abolition, nonviolence and the state, and more.
The first question I asked Ta-Nehisi Coates during our recent conversation on The Ezra Klein Show was broad: What does he see right now, as he looks out at the country?
“I can’t believe I’m gonna say this,” he replied, “but I see hope. I see progress right now.”
Coates is the author of the National Book Award winner Between the World and Me and The Water Dancer, among others. We discussed how this moment differs from 1968, the tension between “law” and “order,” the contested legacy of Martin Luther King Jr., Donald Trump’s view of the presidency, police abolition, why we need to renegotiate the idea of “the public,” how the consensus on criminal justice has shifted, what Joe Biden represents, the proper role of the state, and much more.
But there’s one particular thread of this conversation that I haven’t been able to put down: There is now, as there always is amid protests, a loud call for the protesters to follow the principles of nonviolence. And that call, as Coates says, comes from people who neither practice nor heed nonviolence in their own lives. But what if we turned that conversation around? What would it mean to build the state around principles of nonviolence, rather than reserving that exacting standard for those harmed by the state?
An edited transcript from our conversation follows. The full conversation can be heard on The Ezra Klein Show.
Ezra Klein
What do you see right now, as you look out at the country?
Ta-Nehisi Coates
I can’t believe I’m gonna say this, but I see hope. I see progress right now, at this moment.
I had an interesting call on Saturday with my dad, who was born in 1946, grew up dirt poor in Philadelphia, lived in a truck, went off to Vietnam, came back, joined the Panther Party, and was in Baltimore for the 1968 riots. Would’ve been about 22 at that time.
I asked him if he could compare what he saw in 1968 to what he was seeing now. And what he said to me was there was no comparison — that this is much more sophisticated. And I say, well, what do you mean? He said it would have been like if somebody from the turn of the 20th century could see the March on Washington.
The idea that black folks in their struggle against the way the law is enforced in their neighborhoods would resonate with white folks in Des Moines, Iowa, in Salt Lake City, in Berlin, in London — that was unfathomable to him in ‘68, when it was mostly black folks in their own communities registering their great anger and great pain.
I don’t want to overstate this, but there are significant swaths of people and communities that are not black, that to some extent have some perception of what that pain and that suffering is. I think that’s different.
Ezra Klein
Do you think there is more multiethnic solidarity today than there was then?
Ta-Nehisi Coates
I do. Within my lifetime, I don’t think there’s been a more effective movement than Black Lives Matter. They brought out the kind of ridiculousness that black folks deal with on a daily basis in the policing in their communities.
George Floyd is not new. The ability to broadcast it the way it was broadcasted is new. But black folks have known things like that were going on in their communities, in their families, for a very long time. You have a generation of people who are out in the streets right now, many of whom only have the vaguest memory of George Bush. They remember George Bush the way I remember Carter. The first real president who they actually grappled with was a black dude. That’s a different type of consciousness.
Ezra Klein
I was watching the speech Trump gave before tear-gassing the protesters in the park in DC. What so chilled me about that speech was how much he clearly wanted this — like this was the presidency as he had always imagined it, directing men with guns and shields to put down protesters so he could walk through a park unafraid and seem tough.
He’s always seemed so disinterested and annoyed by the actual work of being president, even during coronavirus. But this is the thing that he seems energized and excited by. And that’s been the scary part of it to me — that you have somebody in that role who is eager for escalation.
Ta-Nehisi Coates
It is pretty clear that the war-making part of being head of state was the part that most appeals to Donald Trump.
What does this mean for the election? It may be true that Donald Trump will win. Maybe this will lead to some sort of white backlash that ultimately helps him. I can’t really call that. But what I will say is this is a massive denial of legitimacy. Donald Trump may win the election in November, but he will be a ruler and not a president.
I think that those things need to be distinguished. When you’re calling out the military to repress protests that are in cities across the country, not just in ghettos and in hoods, all you have is force at that point. Most likely if he wins, he’ll be someone who won with a minority of the vote two times, which will be a first in American history. And violence will be the tool by which he rules. I think it’s a very different situation to be in.
Ezra Klein
I’m glad you brought in that word legitimacy. I wrote a piece the other day called “America at the breaking point,” and one of the things that I was imagining as I wrote that was a legitimacy crisis. The stakes have been going higher and higher this year: coronavirus, the entire country locked in houses, upset, angry, scared. Then you add on a series of basically televised lynchings.
And then you think: This is an election year. In some ways, I’m more afraid of the situation you just described. If Donald Trump is reelected in a way that does not feel legitimate to people — if he loses by more votes than he did in 2016, or there’s a contested-vote situation — this could turn out badly. Legitimacy crises are scary things. And I don’t think we’re really well equipped for one right now.
Ta-Nehisi Coates
I agree. But when I look back historically, the alternative to me is 1968.
I think, amongst a large swath to a majority of black people in this country, the police are illegitimate. They’re not seen as a force that necessarily causes violent crime to decline. Oftentimes you see black people resorting to the police because they have no other option, but they’re not seen with the level of trust that maybe Americans in other communities bestow upon the police. They know you could be a victim to lethal force because you used a $20 bill that may or may not have been counterfeit, because you were asleep at night in your home and somebody got a warrant to kick down your door without knocking.
I would argue that [feeling] has been nationalized. I don’t know that everybody in America feels that way, but I think large swaths of Americans now feel that Trump is the police. And they feel about Trump the way we feel about cops: This is somebody that rules basically by power. I would prefer that situation to 1968, where we’re alone in our neighborhoods and we know something about the world and we know what the police do, but other folks can’t really see it — and if they can, they’re unsympathetic. I would prefer now.
The long history of black folks in this country is conflict and struggle, between ourselves and the state and other interests within the society so that we can live free. And this is the first time that I think a lot of us have felt that the battle was legitimately joined, not just by white people but other people of color. When I hear that brother in Minneapolis talk about how his store was burned down and him saying, “Let it burn.” That’s a very different world. It’s a very, very different situation. It’s not a great one. It’s not the one we want. But it’s not ‘68.
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Read the rest of the interview at the link.
Coincidentally, I just finished reading Coates’s novel about slavery and freedom, The Water Dancer, which I highly recommend.
⭐️⭐️⭐️⭐️⭐️I also found the just-released streaming movie Just Mercy instructive. It’s based on the true story of unjustly convicted Alabama death-row inmate Walter McMillan and his courageous young just-out-of-Harvard African-American attorney Bryan Stevenson, played by Michael B. Jordan. In the movie, as in real life, justice was achieved in the end.
But, was it really?
Why should justice in America a be so dependent on both the “right lawyer” and the particular location and judges before whom you are tried? Why should it be so difficult, time consuming, painful, and uncertain to obtain? Why weren’t the crooked sheriff and the other perpetrators of deadly fraud held accountable? Why was such a tone-deaf judge on the bench in the first place? Why was a corrupt system not interested in real justice for the murder victim? Why do we still have the death penalty — clearly “cruel and unusual punishment” in violation of the Constitution by any rational definition?
It’s also worth remembering that one of the greatest advocates of putting African Americans in Alabama to death was none other than White Nationalist prosecutor Jeff “Gonzo Apocalypto” Sessions. Sessions then went on to a further career involving child abuse, squandering of taxpayer funds on “gonzo” prosecutions of legal asylum seekers, and unfairly sentencing Hispanic refugee women to torture, and even death. Yet, Sessions walks free. He even has the audacity to run for public office again based on his perverted, racist views of “justice” in America.
Whether or not he, or the equally repulsive and bigoted other GOP candidate, former football coach Tommy Tuberville, get elected will be a true test of how far we have come as a nation, and in particular, how far Alabama has come in atoning for past wrongs. Anybody who cares about equal justice for all should send at least a few bucks to the re-election campaign of wholly decent, competent, U.S. Senator Doug Jones (D-AL) to help him fight the GOP “forces of darkness, racism, and inequality,” arrayed against him.
I really hope Coates is right. But, based on the “reality of the moment” we still have a long way to go.True social justice would involve accountability for individuals like Trump, Miller, Sessions, and Barr who have been actors and proponents of injustice toward “the other” in our society. When folks like unapologetic White Nationalist provocateur Sen. Tom Cotton (R-AK) are no longer placed in public office, then, and only then, will social justice and equal justice for all have been achieved.
And, I personally doubt our capacity as a nation for true due process and equal justice under law as long as the “JR Five” rule the Supremes. So far, there haven’t been many racial injustices or “Dred Scottifications” of the other that they have had the courage and integrity to condemn! Better judges, with more humanity and empathy, are a requirement for a truly just nation.
That pandering, maliciously incompetent, willfully ignorant, bigot Donald Trump, with his vile, intentionally racially divisive message of fear still polls at 42% shows just how far we have to go to achieve due process and equal justice for all in America. “Equal Justice For All” isn’t just a “snappy slogan;” it requires leaders who really believe in it!
Right now, save for Nancy Pelosi, we conspicuously lack such leaders in all three Branches of our National Government. Better results will require change at the top. It will also require a significant minority of voters to stop enabling the intolerant, incompetent, and divisive to rule.
As Dr. Martin Luther King, Jr., once wrote:
“Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”
The quote isn’t just an “abstract concept;” it has “real life” meaning. It’s from King’sLetter From Birmingham Jail, where he was unjustly imprisoned in 1963 for participation in peaceful protests against racial injustice.
“Social Justice” isn’t just an idealistic concept. It’s an absolute necessity for a well-functioning, just, and fully productive society!
