🇺🇸⚖️ASYLUM IS THE LAW, NOT AN “OPTION” OR A “LOOPHOLE!” — Judge Garland’s Disturbing Failure To Publicly Stand Up For Rights & Humanity Of Asylum Seekers, & His Failure To End The Rabid Anti-Asylum Bias Of EOIR Stokes Humanitarian Misery, Scofflaw Behavior, & Moral Abdication @ Southern Border!🏴‍☠️ — Whatever Happened To The Scholarly, Humble Jurist Who Was Grateful That His Ancestors Were Rescued From Doom? ☠️— Are Refugee Women, Children, & Those Of Color Less Worthy Than His Family?🤮 — Why?

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

Trial By Ordeal — Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

Felipe De La Hoz — Filipe De La Hoz
Investigative Journalist — Immigration
PHOTO: Twitter

Filipe De La Hoz in The Baffler:

This has been a bizarre conversation on a number of levels, not least because many interlocutors proceed from the assumption that permitting humanitarian migration is even a choice that the president gets to make. It is not: U.S. law lays out that any “alien . . . who arrives in the United States . . . irrespective of such alien’s status, may apply for asylum.” The statute enumerates certain exceptions, such as adults applying more than one year after entry and the existence of specific “safe third country” agreements (which formed another front in Trump’s efforts to gut asylum).

There are no exceptions, however, pertaining to considerations of the domestic political climate, or whether accommodating asylum seekers is deemed just too hard or, god forbid, conducive to others subsequently seeking help. Internationally, the principle of “non-refoulement” (literally non-return) holds that a state cannot “expel or return a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened,” as obligated by the United Nations’ 1967 protocol on refugees, of which the United States is a signatory. While the refugee definition itself is woefully outdated, the requirement to verify whether people fit the rubric before sending them away is absolute. These aren’t open questions, no matter how assertively they’re raised by political strategy hucksters and TV news hosts.

https://thebaffler.com/latest/asylum-is-not-an-open-question-de-la-hoz

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Read the complete article, which makes many other valid points and corrects the daily errors and myths about asylum spewed forth by politicos and the “mainstream” media at the link.

Filipe gets it! But, Judge Garland apparently doesn’t! What’s wrong with this picture? Pretty much everything!

Is this how the DC Circuit Court of Appeals functioned when Judge Garland was on the bench. Is this what “due process” means in America? If not, why is Garland looking the other way as injustice rolls off his “judicial assembly line” in Falls Church?

For Judge Garland to be credible on any racial justice issue, and for EOIR to provide due process, we need radical, not incremental, change! It’s interesting that Biden is getting well-deserved kudos for nominating a very diverse progressive slate of Article III judicial nominees.

Yet, to date, EOIR, with more judges than Biden could appoint in four years, remains staffed and operating as if Jeff Sessions and Stephen Miller were still in charge. And, non-diverse, anti-progressive would be an understatement for today’s Immigration “Courts.” For heaven’s sake, we still have an anti-due-process BIA churning out nativist precedents!

There is nary a “win” for an individual in the last four years of BIA/AG precedents. The BIA and the AG inevitably reject reasonable constructions of statutes presented by respondents in favor of inferior — even nonsensical — ones presented by DHS.

Sometimes, the BIA runs over clear statutory language, circuit precedents, regulatory requirements, or their own past precedents in the “race to remove.” Yet, in the “real” Federal Courts, even with a much more aggressively conservative composition, and their own often dismissive approach to immigrants’ rights, individuals prevail in published decisions almost every day! How outrageous is that!

I’ll believe that Judge Garland is serious about racial justice in America on the day that he 1) vacates every Trump-era AG precedent, and 2) removes the entire BIA and replaces them with a diverse group of progressive judges with human rights expertise and an unswerving commitment to due process. Appoint the “best and the brightest” as President Biden says!

Until then, I remain a skeptic and a strong critic of the just plain dumb, biased, and ill-informed approach to EOIR that has plagued past Dem Administrations.

It won’t be long until, predictably, the fallout from the so-called “border crisis” — unnecessarily hyped by the press and the GOP, but also stoked by the Biden Administration’s lack of expertise, preparation, and “Amateur Night @ the Bijou PR” — hits EOIR.

As of now, Judge Garland appears to be completely unprepared to handle it. So, here we go with another entirely preventable disaster brewing on top of the current grotesque dysfunction, institutionalized bias, and “worst practices” crippling democracy at the “retail level.” Judge Dana Marks said as much in an NPR interview recently. But, I nobody in charge appears to be paying attention! https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.npr.org%2F2021%2F03%2F26%2F981486753%2Fjudge-dana-marks-on-how-the-biden-administration-can-address-immigration-backlog&data=04%7C01%7Cegibson%40nylag.org%7C84cb037942e941a9fdf208d8f2ee428c%7C7a949b265bb44b6197ceb192e674d669%7C0%7C0%7C637526452442537480%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=4es4QSrVKwNB2WfgalWsQMYZppBI5nn985FaOvynr84%3D&reserved=0

It’s not rocket science! But, it does require a much much much more courageous and informed approach, along with common sense and some human decency. And, the “next gen” folks who could make it happen, are still “on the outside looking in.”

Meanwhile, the idiocy continues from the Garland SG’s Office. Handed a golden opportunity to abandon a totally boneheaded position on adjustment of status for TPS holders who qualify to immigrate legally, the Garland DOJ continues to press an irrational and illegal Trump interpretation; one that not only defies the plain language of the statute, but reaches a beyond stupid policy result that keeps hard-working folks who meet the qualifications for green card status in perpetual limbo — for no legal or rational reason whatsoever!

They could have taken the advice of renowned immigration expert and former Senior Executive at both the “Legacy INS” and DHS, Professor David A. Martin. https://immigrationcourtside.com/2021/03/14/⚖%EF%B8%8F🗽professor-david-a-martin-explains-how-biden-administration-could-advance-its-immigration-agenda-by-abandoning-their-wrong-headed-position-before-the-supremes/

Instead, they have followed their morally vacant, “bad government,” and legally challenged predecessors in the Trump regime by taking a totally avoidable yet cruel and counterproductive stance that will actually increase EOIR backlogs while accomplishing nothing whatsoever of any value. Sounds like a lose, lose lose to me! https://nam02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.law360.com%2Fimmigration%2Farticles%2F1368637%2Ffeds-back-green-card-limits-for-tps-holders-at-high-court&data=04%7C01%7Cegibson%40nylag.org%7C84cb037942e941a9fdf208d8f2ee428c%7C7a949b265bb44b6197ceb192e674d669%7C0%7C0%7C637526452442776422%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=6ZxLxyEb%2BKkjyGkfpSzAzj4e1QFmKWAB2Gn0%2BEzOwKc%3D&reserved=0

Sure, the tone-deaf Supremes’ GOP majority might buy it, since it furthers a culture of bias and de-humanization. But, that’s no excuse for what was supposed to be a smarter, more ethical, more humane Administration.

The case is Sanchez v. Mayorkas, and the lack of insight, common sense, and humanity with which Judge Garland has approached the most important topics in current American law — immigration/human rights/racial justice/social justice to date — remains appalling! There will be no racial justice in America until our leaders “connect the dots” between racist immigration policies, a racist-enabling Immigration Court, and degradation of people of color in all areas of the law!

Judge Garland could cut through all the BS by putting the right folks in charge of EOIR and turning them loose. We need a lot less talk and a lot more action!

Many of us out here have long supported social and racial justice, through good times and bad. But, we’re likely to remain unconvinced about the good faith and competence of the Biden Administration until we see radical due process and racial justice reforms at EOIR and the DOJ.

There are many folks who could solve America’s immigration problems in a humane, progressive, and efficient manner that advances and enhances due process. But, to date, Judge Garland short-sightedly refuses to put them in the game or even to publicly acknowledge the debilitating problems in his wholly-owned and incompetently operated courts! And, every minute of delay costs lives and credibility.

Here’s a very recent letter from Senator Gillibrand and other Senators requesting that Judge Garland turn his attention to the EOIR disaster/travesty.

https://www.gillibrand.senate.gov/imo/media/doc/Let.ImmigrationCourtReform.AGGarland.3.23.21.pdf

It’s a terrific letter. But, there is a major problem! All of this was well known long before the election! A number of us made the same points to the Biden Transition Team! Among other things, we emphasized the critical importance off “seizing the moment and hitting the ground running with a complete new approach at EOIR led by a team of available experts.”

The election was over in early November. Yet, here we are with the “same old, same old” failed anti-due process EOIR daily inflicting unnecessary pain, suffering, and abuse on migrants and their lawyers. Most of the same old DOJ unethical, legally questionable, defenses of the indefensible are still the order of the day. Some of the worst and most incompetent jurisprudence in modern American legal history, rendered in Garland’s name, is still being “outed” every week. There is no known plan for correction or even simple statement of awareness from Judge G.

Totally unacceptable! And the lack of preparation and basic competence is reflected in the problems the Administration has had at the border. A functional EOIR could and should have been part of reestablishing the rule of law at the border.

Instead, Judge Garland is making himself part of the latest chapter in America’s disgraceful and unnecessary failure to establish an asylum system that complies with due process and domestic and international laws. One that fulfills international treaty obligations, implements the generous protection objectives of the Refugee Act of 1980, rejects institutionalized racism, reflects the reality of forced migration, incorporates basic human values, and furthers the national interest.

It’s not rocket science; but it requires historical knowledge, recognition of the realities of human migration, legal competence, moral courage, and radical action that Judge Garland has yet to hint is within his capabilities. And, that’s bad news for American justice and humanity!

Inexcusable! But neither the issues of human migration nor the efforts of the NDPA to make the historically false, yet clear, promise of “due process and equal justice under law” a reality will go away, no matter how much Judge Garland and other “head in the sanders” in the Administration might want to believe and act otherwise!

Oh, yeah, don’t forget the heavy dose of overt misogyny that drove the Trump/Miller/Sessions/Barr/BIA “immigration jurisprudence” over the past four years. Yet, no repudiation from Judge Garland!

As I previously said, on “day one” Judge Garland would either repudiate or “own” the despicable treatment inflicted on female refugees and other migrants of color by the Trump kakistocracy. Until we see radical remedial action, Judge Garland now “owns” all the ugliness of the last four years. Our job becomes to let him escape neither responsibility nor the judgement of history for his failure of humanity and good judgement!

🇺🇸🗽🗽⚖️Due Process Forever!

PWS

04-03-21

FELIPE DE LA HOZ @ THE NATION: “The Shadow Court Cementing Trump’s Immigration Policy” — “It’s not a court anymore, it’s an enforcement mechanism,” said Paul Wickham Schmidt, who was himself chair of the BIA between 1995 and 2001 and now writes a popular immigration blog called Immigration Courtside. “They’re taking predetermined policy and just disguising it as judicial opinions, when the results have all been predetermined and it has nothing to do or little to do with the merits of the cases.”

🏴‍☠️⚰️☠️👎

https://www.thenation.com/authors/felipe-de-la-hoz/

Just eight miles from the White House, the Trump administration has quietly opened a new front in its war against immigrants. Inside a 26-story office tower next to a Target in Falls Church, Virginia, the Board of Immigration Appeals has broken with any pretense of impartiality and appears to be working in lockstep with the administration to close the door on immigrants’ ability to remain in the country.

Created in 1940, when the immigration system was moved from the Department of Labor to the Justice Department, BIA serves as the appellate court within the immigration system, where both ICE prosecutors and noncitizen respondents can appeal decisions by individual immigration court judges around the country. It not only decides the fate of the migrants whose cases it reviews; if it chooses to publish a decision, it sets precedent for immigration courts across the country.

Under previous administrations, the BIA was ostensibly impartial and bipartisan, though mainly out of a long-standing tradition of promoting judicial objectivity. Since the entire immigration court system is contained in the Department of Justice—within an administrative agency known as the Executive Office for Immigration Review (EOIR)—immigration judges, including those serving as board members on the BIA, are employees of the DOJ, and, by extension, are part of the executive branch. Unlike their counterparts in the federal judiciary, immigration judges are not independent.

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Since 2018, the Trump administration has exploited its powers over the BIA by expanding the board from 17 to 23 members to accommodate additional anti-immigrant hardliners. Justice Department memos obtained by the American Immigration Council and the American Immigration Lawyers Association (AILA) show that EOIR pushed shorter hiring timelines, which were used to bring on judges with more restrictionist records.

Now the court is stacked with members who have consistently ruled against immigrants, such as one judge who threatened to unleash a dog on a two-year-old boy during a hearing. Numbers obtained by a law firm through a Freedom of Information Request show that the six BIA judges appointed by Attorney General William Barr all had granted asylum in less than 10 percent of cases in fiscal year 2019. (One never granted asylum, despite hearing 40 cases.) An EOIR spokesperson told The Nation in an e-mail that“EOIR does not choose Board members based on prohibited criteria such as race or politics” and that “Board members are selected through an open, competitive, merit-based process.”

The most notable example of the administration’s preference for ultraconservative judges came in late May, when Barr appointed David H. Wetmore as BIA chairman. Wetmore, a former immigration adviser to the White House Domestic Policy Council, was around for some of the Trump administration’s most egregious policies, including the travel ban and family separation policy.

Although only two decisions have been issued since Wetmore was appointed chair, he seems set to pick up where his predecessor, former Acting Chair Garry G. Malphrus, left off. Malphrus, a George W. Bush holdover, became the face of the court’s lurch to curtail immigrants’ legal protections since Trump took office. He had the hawkish bona fides that made him an ideal chairman under the Trump DOJ: From 1997 to 2001, he served as chief counsel to one-time segregationist Senator Strom Thurmond on the Senate Judiciary Committee, and he was made associate director of the White House Domestic Policy Council after his roleas a Brooks Brothers rioter during the 2000 Bush v. Gore recount in Florida—during which GOP operatives staged a protest that disrupted a recount and may have handed Bush the presidency.

Malphrus was made acting chair in 2019, and authored 24 of the 78 BIA precedential decisions issued under the current administration. Almost all of these precedential decisions have made it more difficult for immigrants to win their cases. The board made it harder for victims of terrorism to win asylum and raised the bar of evidence needed for several types of protections.

“It’s not a court anymore, it’s an enforcement mechanism,” said Paul Wickham Schmidt, who was himself chair of the BIA between 1995 and 2001 and now writes a popular immigration blog called Immigration Courtside. “They’re taking predetermined policy and just disguising it as judicial opinions, when the results have all been predetermined and it has nothing to do or little to do with the merits of the cases.”

Consider this: In a case decided in January, the BIA was considering whether an immigration judge had erred in refusing to postpone a removal decision for a person awaiting a decision on a U visa application—a visa type reserved for victims of certain crimes or those cooperating with authorities investigating a crime—to be resolved. (ICE had recently changed their policies to make it easier to deport people in this situation.) The BIA sided with the judge, acknowledging that the crime victim was “eligible for a U visa” but was not entitled to wait to receive it, in part due to his “lack of diligence in pursuing” one. The decision signals that immigrants eligible for crime victim visas, and who are willing to cooperate with law enforcement, can still be ordered deported.

While federal courts hear public oral arguments and largely deliberate openly, the BIA typically uses a paper review method, which means they receive briefs from opposing parties and hand down a decision some time later with the whole intervening process shrouded in secrecy. “Unlike federal courts, where unpublished decisions are still accessible by the public, and so you can track what judges are saying in decisions that do not make precedent, the [BIA] only sporadically releases those decisions,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.

. . . .

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

Filipe’s final point in the article is one we should all keep in mind:

For hundreds of thousands of immigrants, it doesn’t matter if the anti-immigrant paper pushers in this obscure administrative body are tossed out and all of the policy is slowly reversed by another administration; for most, one shot is all they get. Whether a case was winnable before or even after the Trump BIA is irrelevant. The chance to stay in the United States will be lost forever.

The damage to our humanity and our national conscience inflicted by Trump’s White Nationalist regime, wrongfully enabled by complicit Supremes, and aided and abetted by a GOP Senate will not be “cured” by inevitable later “reforms,” be they next year under a better Administration or decades from now, as is happening with other racial justice issues. Undoubtedly, as eventually will be established, the current anti-immigrant and particularly the anti-asylum policies of the Trump regime are deeply rooted in racism, xenophobia, and misogyny. One need only look at the well-documented careers of “hate architects” like Stephen Miller, Steve Bannon, and Jeff Sessions to see the intentional ignorance and ugliness at work here.

I frankly don’t see how we as a nation ever can come to grips with the racial tensions and demands for equal justice now tearing at our society without recognizing the unconscionable racism and immorality driving our current immigration and refugee policies and the failure and untenability of too many leaders in all three branches who have either helped promote racial injustice or have lacked the moral and intellectual courage consistently to stand up against it. They are the problem, and their departure or disempowerment, no matter how long it takes, will be necessary for us eventually to move forward as one nation.

Due Process Forever!

PWS

06-30–20

🇺🇸🗽🗽⚖️Due Process Forever!

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🏴‍☠️⚰️☠️👎

Due Process Forever!

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