"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.
Former candidate tells Salon that Biden “gets it” on immigration and police reform, but Trump is “unconscionable”
Dean Obeidallah
Former Democratic presidential candidate Julián Castro may not be on the ticket in 2020, but he’s looking forward to getting rid of Donald Trump, whose strategy he says is designed to deepen the culture war in America. During our recent conversation for Salon Talks, Castro explained why he’s strongly supporting Joe Biden, while at the same time pressing the former vice president on immigration and police reforms.
Castro told me that Trump, even more than in 2016, is “appealing to that sense of white superiority, white nationalism” that got him elected in the first place, But he says the “scariest” aspect of the Trump presidency is the fact that people still support “someone who is manifestly so unqualified.” Castro, who was Secretary of Housing and Urban Development under Barack Obama and before that mayor of San Antonio, is a senior advisor to Voto Latino, a grassroots political organization focused on empowering Latinx voters, who make up the largest ethnic or racial minority group of the electorate.
Castro laid out the top issues of concern to the Hispanic community, which is projected to account for a new high of 13.3 percent of all eligible voters in 2020 at 32 million. One of those is immigration reform, which Castro noted that Bernie Sanders successfully addressed during the 2020 Democratic primaries. Biden was less clear on the issue, but Castro explained that the certain Democratic nominee has since increasingly focused on outreach to the Hispanic community and is committed to bringing forth the “most progressive approach on immigration.”
Watch my Salon Talks episode with Castro embedded below, or read the following transcript — edited for length and clarity — to learn more about what Castro thinks about Biden’s approach to immigration and police reform, and his take on the COVID-19 public health crisis.
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Read the complete article and view the video of the interview at the link!
Yes, it is “scary.” Very much so, to know how many anti-Americans are living in our country. Taking back power from the White Supremacists masquerading as a legitimate political party is the first step to getting to where we need to be as a nation and as compassionate human beings. There will always be doubters and naysayers. But, never again should we let their dark vision control our destiny as a diverse nation of immigrants with equal justice for all!
Julián Castro “gets” it. He’s 10x more qualified than any of the “GOP Five” on the Supremes. Hopefully, he’ll get his chance to be on the Supremes in the future. Gosh knows, we need some real Justices who have the guts and decency to stand against overt racism and bigotry, instead of enabling, justifying, and encouraging it! He’d also be a great Attorney General or DHS Secretary.
Everything starts with replacing Trump with Biden and putting Democrats in every elected office. There is no excuse for Trump and today’s GOP and their morally and Constitutionally bankrupt racist agenda,
This November, vote like your life depends on it! Because it does!
WASHINGTON, DC — The American Immigration Lawyers Association (AILA) condemns the Trump administration’s recent ramp-up of efforts to turn the immigration court system into an enforcement tool rather than an independent arbiter for justice. The immigration courts are formally known as the Executive Office for Immigration Review (EOIR) and are overseen by the Department of Justice (DOJ).
AILA President Jennifer Minear, noted, “AILA has long advocated for an independent immigration court, one that ensures judges serve as neutral arbiters of justice. This administration has instead subjected the courts to political influence and exploited the inherent structural flaws of the DOJ-controlled immigration courts, which also prosecutes immigration cases at the federal level. The nail in the coffin of judicial neutrality is the fact that the administration has put the courts in the control of a new Chief Immigration Judge who has no judicial experience but served as ICE’s chief immigration prosecutor. No less concerning is DOJ’s recent choice for Chief Appellate Immigration Judge – an individual who also prosecuted immigration cases and advised the Trump White House on immigration policy. This administration continues to weaponize the immigration courts for the sole purpose of accelerating deportations rather than dispensing neutral justice. Congress must investigate these politically motivated appointments and pass legislation to create an independent, Article I immigration court.”
Among the recent actions taken by this administration to bias the immigration courts:
As a friend and former colleague said recently “I would have thought that the one thing everyone could get behind, regardless of political philosophy, would be a neutral court system.” Sadly, not so in today’s crumbling America.
There are three groups blocking the way:
The Trump Administration, where due process only applies to Trump and his corrupt cronies;
GOP legislators whose acquittal of Trump against the overwhelming weight of the evidence shows exactly what due process means to them;
Five GOP-appointed Justices on the Supremes who don’t believe that due process applies to all persons in the US, notwithstanding the “plain language” of Article 5 of our Constitution — particularly if those persons have the misfortune to be asylum seekers of color.
The end result is “Dred Scottification” — that is, dehumanization or “de-personification” of “the other.” The GOP has made it a centerpiece of their failed attempt to govern, from voter suppression, to looting the Treasury for the benefit of the rich and powerful, to immunity for law enforcement officers who kill minorities, to greenlighting cruel, inhuman,and counterproductive treatment of lawful asylum seekers and immigrants. Not surprisingly, this essentially “Whites Only” view of social justice is ripping our nation apart on many levels.
I find it highly ironic that at the same time we are rightfully removing statutes of Chief Justice Roger Taney, a racist who authored the infamous Dred Scott Decision, Chief Justice Roberts and four of his colleagues continue to “Dred Scottify” asylum seekers and other immigrants, primarily those of color, by denying them the due process, fundamental fairness, fair and impartial judges, and, perhaps most of all, racist-free policies that our Constitution demands!
Compare the “due process” afforded Trump by the GOP Senate and the pardon of a convicted civil and human rights abuser like “Racist Sheriff Joe” with the ugly and dishonest parody of due process afforded Sister Norma’s lawful asylum seekers whose “crime” was seeking fair treatment, justice, and an acknowledgement of their humanity from a nation that has turned it’s back on those values.
What Sister Norma’s article did not mention is that those who survive in Mexico long enough to get to “court” have their asylum claims denied at a rate of about 99% by an unfair system intentionally skewed and biased against them. Most experts believe that many, probably a majority, of those being denied actually merit protection under a fair and impartial application of our laws.
But, as pointed out by AILA, that’s not why Billy the Bigot has appointed prosecutors as top “judges” and notorious asylum deniers as “appellate judges.” He intends to perpetuate a highly unfair “deportation railroad” designed by infamous White Nationalist racist Stephen Miller. In other words, our justice system is being weaponized in support of an overtly racist agenda formulated by a racist regime that has made racism the centerpiece of its pitch for remaining in office. Incredible! Yet true!
The Supremes have life tenure. But, the other two branches of our failing Government don’t. And, a better Executive and a better Legislature that believe in our Constitution and equal justice for all is a necessary start on a better Federal Judiciary — one where commitment to due process, fundamental fairness, and equal justice for all is a threshold requirement for future judicial appointments.Time to throw the “non-believers” and their enablers out of office.
This November, vote like your life and our country’s existence depend on it! Because they do!
“On July 16, 2019, the Department of Justice and the Department of Homeland Security published a joint interim final Rule without notice and comment, entitled “Asylum Eligibility and Procedural Modifications” (the “Rule”). With limited exceptions, the Rule categorically denies asylum to aliens arriving at our border with Mexico unless they have first applied for, and have been denied, asylum in Mexico or another country through which they have traveled. We describe the Rule in detail below. Plaintiffs are nonprofit organizations that represent asylum seekers. They brought suit in district court seeking an injunction against enforcement of the Rule, contending that the Rule is invalid on three grounds: first, the Rule is not “consistent with” Section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158; second, the Rule is arbitrary and capricious; third, the Rule was adopted without notice and comment. The district court found that plaintiffs had a likelihood of success on all three grounds and entered a preliminary injunction against enforcement of the Rule, with effect in the four states on our border with Mexico. We hold that plaintiffs have shown a likelihood of success on the first and second grounds. We do not reach the third ground. We affirm.”
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This isn’t rocket science. Neither the legal nor moral issues are particularly difficult in this case. Indeed, the Supremes should unanimously have tossed Solicitor General Noel Francisco out on his tail the last time he unethically requested their intervention. Instead, they rewarded him, thus enabling and encouraging further “crimes against humanity.”
Unfortunately, this Supremes’ majority has had a hard time seeing people of color, and particularly those seeking asylum and other legal protections under our laws, as human. Even though the lower Federal Courts have essentially made things easy by showing exactly why these racist-inspired policies are illegal, a Supremes majority has chosen to advance Stephen Miller’s White Nationalist agenda, sometimes hiding behind a smokescreen of nonsensical legal gobbledygook, while other times choosing to act without bothering to provide any rationale at all.
One thing is for certain. Someday, after the fall of Trump, and the banishment of Miller, the Justices who advanced their unconstitutional, illegal, racist immigration agenda will try to “save their legacies” by putting some distance between themselves and the neo-Nazi ramifications of their votes. It’s critically important for those of us who see exactly what’s happening to insure that the names of justices and judges who sided with Stephen Miller are inextricably linked for the rest of time with his disgraceful racist legacy of “crimes against humanity.”
There is only one side of history here! And, it’s certainly not with Stephen Miller and his enablers, be they judges, legislators, public officials, or voters.
Meanwhile, the pandemic has made it more difficult to care for those who are arriving at the border each day. Since that lone covid-19 case was identified, Mexico’s National Immigration Institute has not allowed the camps to accept any new arrivals. So refugees are being turned away and have no place to go. Some are being placed in hotels or churches, and volunteers are desperately looking for other options.
Within the camp, we have had to limit the volunteers’ activities — there are 10 to 20 volunteers allowed to enter and help provide the people with food, water and basic health care. We have set up areas for washing hands, and try to provide hope and reassurance amid the uncertainty. All this makes it even harder to keep the camps safe from the cartels and gangsters who continue to prey on these largely defenseless asylum seekers.
That young woman who tested positive for the coronavirus has been transferred to a covid-19 center operated by Doctors Without Borders. We pray for her recovery, and we pray for all the families’ safety, for their protection and for a resolution to their untenable situation.
While I know many people in many places are dealing with so much, I urge you not to look away from the border in this moment. Do not ignore the suffering occurring here. It is time that we put an end to it, and to end the MPP policy. Until that happens, we will continue to help those who are defenseless, whose only real “crime” is trying to seek protection for themselves and their families.
Sister Norma Pimentel
In addition to highlighting inhumanity, Sister Pimentel shows the gross intellectual fraud and immorality in the Trump Regime’s bogus claim that asylum seekers present a significant threat of spreading COVID-19. If anything, it’s the exact opposite which is most often the case with the Trump regime’s endless racist false narratives and fake “horror stories” about immigration.
It also exposes yet again both the intellectual dishonesty and immorality of those who present “pretextual justifications” for illegal acts being perpetrated by our Government against the most vulnerable and the spineless performance of judges who claim to accept at face value that which any reasonable person knows to be a pretext for racism and inhumanity.
The intent behind these bogus regulation changes and programs like the “Migrant Protection Protocols” (or, more properly, “Let ‘Em Die in Mexico”) is very clear: dehumanize “the other” – in this case primarily brown skinned asylum seekers. But, in the process of letting this happen and tolerating legislators and judges without the decency to stand up for the rights of our fellow humans, WE are the ones who actually are dehumanized. We’re not allowed to look away from the horrors being perpetrated by the Trump regime in our name!
WE MUST DEFEAT THE “END OF AMERICA” CAMPAIGN: Lacking Constructive Ideas, Positive Achievements, or Human Values, Trump Makes Hate, Racism, & Lies His Message — It’s Joe Biden’s Time to Shine!
By Paul Wickham Schmidt
Courtside Exclusive
July 5, 2020
Upon hearing Donald Trump declare his candidacy for President, I turned to my wife Cathy and said “The guy is totally without values and redeeming qualities.” While I didn’t get the outcome of the election right, I nailed the Trump kakistocracy. If anything, it’s been much worse than my bleak outlook.
Who would have thought that our un-President would dance on the graves of 130,000 dead Americans while urging his followers to “drink the Kool-Aid?” Who would have believed thatour supposed leader would urge the maximum spread of deadly disease, intentionally overload an already stressed healthcare system, while looking to insure thousands of unnecessary deaths and disabilities by maliciously seeking to ax health insurance for some of America’s most vulnerable? With a “Jim Jones style” false leader like this, who needs enemies?
But, speaking of “enemies,” why not suck up to Putin while turning against long-time allies like the EU, Canada, and Mexico? Why not give the PRC an opening to subsume Hong Kong, while increasing its influence in Africa, Latin America, and the Caribbean as U.S. foreign policy crumbles?
Worldwide pandemic — embrace it. Climate change — deny it. Inevitable increase in worldwide migration driven by the preceding — build walls and prisons. High unemployment — end the Federal supplement. Failing bridges and unsafe highways — who cares. Falling revenues — cut taxes for the rich and services for the poor. Institutional racism — double down and glorify past racists. Voting rights — suppress them. Police brutality — enable it. Free speech —punish it. Environmental degradation — deregulate. Truth — be damned. Human decency — mock it. Justice — only for some. Reports of bounties on American soldiers — look the other way. Hate crimes — encourage them. Trump’s “malicious incompetence,” cruelty, corruption, and downright stupidity is endless and on public display every day.
Now, with no message of hope, healing, improvement, or a better future for all Americans and the world, Trump spews and babbles the only things he actually stands for (other than his own self-aggrandizement): hate and racism. Is this “Know Nothing/KKK Redux” really the message on which the GOP seeks to govern in 21st Century America? Outrageously, the answer clearly is “yes,” even if the Tim Scotts, Clarence Thomases, Herman Cains, and Ben Carsons of the world feign ignorance or believe that their privileged positions will save them, if not their souls.
For the rest of us, the time has come to rise up and throw the imposter out. Joe Biden might not be the “perfect candidate.” Has there ever been such a thing? As humans, we all have our warts and past mistakes. But, unlike Trump, Biden has a message and a plan for healing America, correcting long-standing injustices, and moving forward.
Biden’s July 4 message emphasized the positives that will make a better future for all in America, regardless of race, religion, status, or economic power:
Enhancing voting rights and maximizing participation in elections;
Safeguarding elections from Putin and other corrupt foreign governments leaders;
Reversing inhumane and counterproductive asylum, visa, “baby jails,” and family separation policies;
Reaffirming our identity as a proud nation of immigrants;
Protecting and enhancing judicial independence;
Honoring freedom of the press and independent journalism;
Rooting out institutionalized racism from every part of society where it is now embedded;
Leading the world to better times by example, encouragement, and mutual assistance, rather than constantly issuing threats, reacting with childish petulance to every perceived slight, and spewing the ugly, disproven gospel of selfish nationalism, that has nearly destroyed our world in the past, as the vision of the future.
Joe Biden is an accomplished public servant, capable leader, decent human being, and advocate for true American values. He will restore our humanity, reinvigorate our democratic institutions, bring Americans of goodwill together, rebuild our economy, protect our health, care about our environment, address racism and inequality, maximize everyone’s human potential, and reestablish our international political, economic, and moral leadership.
This is our chance to join together to retake our Government from the forces of darkness and hate and to finally achieve that which our Constitution has demanded for the last century: Equal justice for all. This November, vote like your life, the life of every American, and the future of our world depend on it. Because they do!
Yes, the Fourth of July is a date to honor. But this year, it is also a day of sorrow for where we now find ourselves.
The United States of America, created in 1776 by men who put love of country over their own private interests — who staked their lives, fortunes and their sacred honor on the cause of their new nation — is now in the grasp of a man whose entire life has been spent taking, while giving nothing in return.
Trump’s successes are displayed in shrines across the country and around the world emblazoned with his name — Trump towers, Trump plazas, Trump golf courses, Trump casinos, and Trump streets and roads. Trump’s love is limited to his private interests. He stakes his life and fortune only on the cause of Trump.
To further sully the celebration of the most pivotal day in U.S. history, the White House is in the grasp of a president who thinks the United States’ heritage is exemplified by the legacy of the Confederate flag and the traitorous generals who fought under that symbol of white supremacy.
Trump’s meltdown over the attempted takedown of the slaveholding Andrew Jackson’s statue in Lafayette Square is, for instance, of a kind with his cherishing of monuments of the War of Southern Aggression, which started when the Confederacy fired on the American flag at Fort Sumter.
Douglass would be revolted by Trump’s infatuation with a history in which generations of blacks were robbed of their liberty and forced to show obedience to the master. As outraged as I am now.
Trump’s warm embrace of white nationalism on Independence Day 2020 makes a mockery of the concepts of justice and liberty entrusted to the nation in the Declaration.
Gwen and I celebrated our 59th wedding anniversary on July 3. The first four Fourth of Julys of our marriage were spent as citizens of a country with a large swath of areas that had hotels, restaurants and places of entertainment that we were not allowed to enter because we were black. Two of those years I spent proudly wearing the uniform of a U.S. Army commissioned officer.
Try living with that.
Today, we have the bodies of George Floyd, Rayshard Brooks, Breonna Taylor and Ahmaud Arbery — with a preening, coldblooded bully ensconced in the Oval Office.
Whose Fourth of July is this?
The Founders discovered themselves faced with an oppressive Crown.
Separation from the Crown was right.
So, too, will be America’s liberation from Donald Trump.
That should be our declaration on this Independence Day.
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Read the rest of Colby’s statement at the link.
RESOLVE:To take back our nation from the White Nationalist racist kakistocracy of hate and malicious incompetence that has assumed power as our democratic institutions have failed their “stress test” and plunged us into a daily exhibition of “crimes against humanity.”
This November, vote like your life and the future of America depend on it.Because they do!
Opening statements and closing arguments can win cases for clients, if the practitioner is able to deliver a performance that is both concise and compelling. This practice advisory offers guidance and tips that will help practitioners deliver concise and compelling opening statements and closing arguments in immigration court.
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Read more and download this wonderful resource at the link.
Michelle and her team @ CLINIC promise more “great stuff” next week.
Going in Opposite Directions: Ironically, as the Trump DOJ has worked overtime to “dumb down” EOIR, Michelle and many others in the Immigration & Human Rights communities, particularly AILA, other NGOs, Clinical Professors, and pro bono counsel at “Big Law,” have been working even harder to promote “best immigration and legal practices” before all tribunals. And, despite the Supreme’s “willful blindness” to the Constitution, the rule of law, and human dignity as it applies to asylum seekers and migrants, the results are showing elsewhere in the justice system.
It also points to the obvious unconscionably overlooked untapped source for better Federal Judges in the future, from the Supremes to the Immigration Courts: the pro bono and clinical immigration and human rights bars — actually the main fount of courageous opposition to the regime’s concerted attack on our Constitution, our justice system, and our humanity.
If these folks and others like them were on the Supremes, American justice wouldn’t be in shambles and equal justice justice for all under our Constitution would actually be enforced, rather than degraded or intentionally skirted with legal gobbledygook. The lack of both legal and moral leadership from our highest Court in the face of a clearly out of control and unqualified White Nationalist Executive and his toadies is simply astounding, not to mention discouraging.
It’s little wonder that the tensions caused in no small measure by the Court’s systemic failure to stand up for voting rights, civil rights, the rights of other persons of color in the U.S., and to hold abusers at all levels accountable, is now overflowing into the streets. No, an occasional vote for a correct result from Roberts or another member of “The Five” is not going to solve the problem of Constitutional, racial, and moral dereliction of duty by our highest Court.
Almost every day, “real” Article III Lower Courts “out” some aspect of the outrageously biased and unprofessional performance of EOIR and the rest of Trump’s immigration kakistocracy before the courts. Even some GOP and Trump appointed Article III Judges have “had enough” and don’t want their professional reputations and consciences sullied by association with the regime’s unlawful White Nationalist agenda.
Unfortunately, however, the Federal Courts generally have failed to follow through by sanctioning the often unethical and dishonest performance of the regime in court and by shutting down EOIR’s unconstitutional “kangaroo courts,” DHS’s equally unconstitutional “New American Gulag,” and the fraudulent operation of bogus “Safe Third County Agreements,” “Remain in Mexico,” and patiently disingenuous ridiculously overbroad COVID-19 “immigration bars” (which are actually thin cover for Stephen Miller’s preconceived White Nationalist nativist agenda). Moreover, lower Federal Court Judges who courageously stand up against the regime’s unconstitutional agenda and program of “dehumanization” are too often improperly undermined by the Supremes (sometimes without explanations or “short circuiting” the system), thereby “greenlighting” further “crimes against humanity” by an unscrupulous and unethical Executive.
We’re making a permanent record of both the “crimes against humanity” committed by the regime and those public officials, be they so-called “public servants,” feckless legislators, or life-tenured judges who have actively aided, abetted, been complicit, or “gone along to get along” with Trump’s countless lies and abuses. Later judicial “corrections” by a better Court or legislative “fixes” by a real Congress will not reclaim the lives of those shot on the streets by police, infected with COVID-19 in the Gulag, kidnapped and abused by gangs in Mexico while waiting for fake hearings, or “rocketed” back to persecution and torture in the Northern Triangle and elsewhere in violation of U.S. and international laws without any meaningful process at all. Nor will they wipe out the abuses by governments at all levels elected without the full participation of American citizens of color and in poverty whose votes were purposely suppressed or political authority diminished by corrupt GOP pols and their Supreme enablers.
As we can see by the long-overdue historical reckoning coming to Confederates and other racists who actively worked to undermine our Constitution, block equal justice for all, and dehumanize other humans in America, there will be an eventual historical reckoning here, and justice ultimately will be served, even if not in our lifetimes. That’s bad news for Roberts, his right-wing colleagues, and a host of others who have willfully enabled the worst, most abusive, and most clearly lawless presidency in U.S. History, as well as the most overtly racist regime since Woodrow Wilson.
Due Process Forever!
This November, vote like your life depends on it! Because it does!
JOIN THE NEW DUE PROCESS ARMY (“NDPA”) & BE PART OF THE SOLUTION TO UNEQUAL JUSTICE IN AMERICA!
T. Alexander Aleinikoff American Legal ScholarDeb Amos International Correspondent NPRJulie Hirshfeld Davis Congressional Reporter NY TimesMichael D. Shear White House Reporter NY Times
From: Alex Aleinikoff
Sent: Tuesday, June 30, 2020 1:58 PM
To: Immprof
Subject: [immprof] Entry Denied on the Tempest Tossed podcast
Please excuse this shameless self-promotion. We launched today the first of an 8-episode series on the Tempest Tossed podcast on Trump immigration policies. The series is called Entry Denied: Immigration policies in the time of Trump. In this first episode, Deb Amos (NPR) and I speak with NY Times reporters Michael Shear and Julie Hirshfeld Davis on how immigration became central to the Trump campaign. There will be a new episode each of the next 7 Tuesdays (on asylum, the wall, DACA, etc).
It is available on most podcast platforms (Apple, SoundCloud, Spotify)–search for Tempest Tossed.
Alex
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University Professor
Director, Zolberg Institute on Migration and Mobility
The New School
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I trust that at some point Alex will get around to telling everyone about the time back in the Carter Administration when we were on the verge of making then Associate Attorney General John H. Shenefield an official “Immigration Officer” to serve process on the tarmac @ JFK International. Or how with a little help from our late friend Jerry Tinker, Alex, David Martin, and I “perfected” the Refugee Act of 1980 just in time for the Cuban Boatlift. Whose idea was “Cuban/Haitian Entrant Status Pending” anyway? How come you never had to visit the Atlanta Federal Penitentiary during a lockdown, Alex?
Sounds like a most timely and fascinating series involving one of the all time great modern legal minds.
Thanks and best wishes to all involved in this historic enterprise! 🍾🥂🍻
‘Failure Is Striking’: Trump-Tapped Judge Throws Out Administration’s Asylum Restriction
U.S. District Judge Timothy Kelly panned DOJ attorneys for leaning heavily on a single newspaper article in arguing the asylum restriction was exempt from rulemaking procedures.
A federal judge in Washington, D.C., late Tuesday vacated a Trump administration rule that blocked migrants from petitioning for asylum in the U.S. if they were not first denied the protections by other countries they traveled through on their way to the southern border.
U.S. District Judge Timothy Kelly, appointed to the bench by President Donald Trump, issued the ruling nearly a year after he first rejected a temporary restraining order against the restriction. A similar challenge has played out in federal court in California, where the U.S. Court of Appeals for the Ninth Circuit has upheld a preliminary injunction against the rule. The U.S. Supreme Court had previously said the administration can enforce the measure while that court fight played out.
In Tuesday’s ruling, Kelly found Trump officials violated the Administrative Procedure Act by not following the law’s “notice-and-comment” requirement before enacting the rule. He did not address other legal claims made against the policy.
Kelly rejected arguments from Trump Justice Department attorneys that officials could skip the notice-and-comment period for this rule through the APA’s “good cause” exception. Government lawyers said making the rule available for comment before it was implemented could cause a surge of asylum seekers at the border, but Kelly said there was “not sufficient evidence” to meet the exception.
Kelly slammed DOJ attorneys for leaning heavily on an October 2018 Washington Post article in making that argument, finding that the single newspaper article did not provide evidence for their record and there was little other evidence to support their claims.
“Even assuming that the rule was likely to have had a similar effect as the regulatory change described in the article, the article contains no evidence that that change caused a surge of asylum seekers at the border—let alone one on a scale and at a speed that would have jeopardized their lives or otherwise have defeated the purpose of the rule if notice-and-comment rulemaking had proceeded,” Kelly wrote. “In fact, the article lacks any data suggesting that the number of asylum seekers increased at all during this time—only that more asylum seekers brought children with them.”
The judge similarly rejected government charts showing data on border enforcement and encounters for not directly supporting DOJ’s claims.
“At bottom, as plaintiffs point out, defendants—‘despite studying migration patterns closely’—have ‘failed to document any immediate surge that has ever occurred during a temporary pause in an announced policy.’ That failure is striking,” Kelly wrote.
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Those with NLJaccess (or who haven’t exhausted their three free articles for the month) can read the rest of Jacqueline’s article at the link. The link to the full decision in CAIR Coalition v Trump is in the excerpt. I’ll have to admit that as an admirer of CAIR’s unrelenting efforts to protect our Constitution and our legal system from Trump’s racist-inspired lawlessness, the caption of this case is particularly fitting and satisfying.
Bravo for U.S. District Judge Timothy Kelly for taking his job as an independent decision-maker and his oath to uphold the Constitution and the laws of the U.S. seriously!
This decision also casts doubt on the judicial integrity of those Supreme Court Justices who ignored the law to “greenlight” this same invalid regulation in the Barr v. East Bay Sanctuary. So far, the lower Federal Courts that have taken time to examine and reflect on the law have found Trump’s action’s unlawful. Makes one wonder why the Supremes’ majority was so overanxious to “get on with the killing” of refugees when the individual interests are life or death while the government interests are fabricated or highly exaggerated, factually inaccurate, pretexts.
When policy is made by Stephen Miller’s racist talking points rather than expert input and honest deliberation involving the common good, bad things are going to happen to those we are supposed to protect, not reject for fabricated reasons.
Still, Trump shouldn’t worry too much. He can still take his bad faith case to the D.C. Circuit where Judge Naomi “Show Me Where to Sign on My Master’s Bottom Line” Rao awaits. And, then there’s the J.R. Five who have shown the willingness and ability to accept almost any kind of unethical BS laid out by outgoing Trump SG Noel Francicso to “stick it to” vulnerable asylum seekers.
How will “The Five” function come October Term without Francisco to relay Trump’s wishes and to feed them thin cover stories that most lawyers would recognize as phony as a three-dollar bill?
Catherine Rampell Opinion Columnist Washington Post
By Catherine Rampell
June 29 at 7:16 PM ET
Last week President Trump suspended visas for huge categories of immigrants, allegedly to “protect American jobs.”
To understand how disingenuous this rationale is, consider the case of Vihaan Baranidharan.
Vihaan is stuck in India, where he went to see his sick grandmother for what was supposed to be a short visit. Thanks to Trump’s order, he’s blocked from getting the visa stamp needed to return to Dallas. But Vihaan has not taken, nor has any plans to take, any American’s job. He doesn’t have the experience to be competitive in the U.S. job market — or even sufficient vocabulary.
Because Vihaan just finished first grade.
“What risk could he pose to the U.S. economy?” pleads his mother, Sindhu Turumalla. “He is 7.”
That doesn’t matter to the Trump administration, which is exploiting the economic downturn as another excuse to punish immigrants — whether legal or undocumented, professional or working class, entrepreneur or student, adult or child.
The United States is so far the only country to “explicitly justify mobility limitations not on grounds of health risk, but to protect the jobs and economic wellbeing of” its citizens, according to the Migration Policy Institute.
In an April executive order, Trump suspended issuance of green cards for most people applying from abroad. Last week’s executive order expanded the ban to large categories of temporary, employment-based visas. This included the highly skilled immigrants the administration usually claims it prioritizes, as well as any spouses and minor children who normally accompany these workers.
The U.S. economy is indeed in bad shape. But it’s hard to fathom that the estimated 377,000 would-be immigrants now barred from entry present much “risk to the U.S. labor market,” as Trump claims.
Keeping them out, however, could actually harm the economy in the long run. Vihaan’s family presents a helpful case study.
His dad, an executive handling cybersecurity at a major global bank, has been based in the United States since 2017 on a visa specifically for executives transferred from abroad within the same company. He manages, and hires, U.S. workers. While unemployment overall is in double digits, in his field — computer-related occupations — unemployment has declined since the pandemic began, hitting 2.5 percent in May.
What’s more, economists generally believe that highly skilled immigrants like him create job opportunities for Americans and make the country more competitive, especially in STEM, or science, technology, engineering and math, fields.
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Read the rest of Catherine’s article at the link.
Let’s see, 21 million Americans out of work.377,000 foreign workers barred. That’s less than 2% — statistically insignificant. But, politically, it’s “red meat” to Trump’s White Nationalist followers.
Beyond that, it’s largely apples and oranges. Among others, Trump is barring intracompany executives and managers, those with specialized business knowledge, skilled professionals, and those coming under exchange programs. But, the hardest hit sectors of the U.S. workforce have been things like hospitality, government, and mining.
So, Toyota is going to hire an out of work bartender to run a U.S. Division? An international tech company is going to replace its chief information officer with an out of work coal miner? Or, perhaps a laid off government bureaucrat is going to replace a seasonal camp counselor in Maine? Not likely. More realistic that the employer would simply shift the work abroad or just close or reduce the U.S. operations.
During my years in the INS, we went through various iterations of “programs” to notify state and local employment agencies when a major enforcement operation supposedly “freed up” jobs for U.S. workers — usually in agriculture or manufacturing. None of these efforts created meaningful opportunities that U.S. workers were ready, willing, and qualified to take, at least on any systematic, consistent, or widespread basis.
The oft-cited claim that “they are taking our jobs” or that deportations, exclusions, and bars “protect the American labor market” is largely unsupported by hard data. Let’s just take a look at those who advance such basically mythical claims: nativist immigration groups and GOP politicos.
These are the same folks who oppose increases in minimum wages, bust unions, eliminate health and safety protections, don’t believe in health care, weaken anti-discrimination protections, cut unemployment benefits, and support management’s unilateral right to exploit workers to the max. These are not groups and individuals with any real concerns about the health or welfare of U.S. workers except to the extent that they think their claims — supplemented with racist dog whistles identifying the “foreign invaders” as people of color — might win them some votes at election time.
Or let’s take something more basic. I just listened to a news report saying that the simple act of everyone wearing a mask could save the U.S. economy one trillion dollars. That’s real money!
So, if Trump, Pence, and the GOP really wanted to help American workers and the economy in a meaningful way, they would be pulling out all the stops to promote, actually demand, that all Americans wear masks and practice social distancing. They would be strongly supporting governors, mayors, and public health officials urging these uniform practices. Yet, that’s not what’s happening.
The visa suspension is just another Trump racist ruse. Something to make the gullible think he is concerned about them when fact is he’s never been concerned for anyone in his life except himself. But, it’s dangerous because it promotes the myth of the link between immigrants and America’s economic problems and shifts the attention from the Trump kakistocracy’s “malicious incompetence” that actually was a major contributing factor to our inept, at best, COVID-19 response and the problems and chaos that have followed.
The real situation looks more like this: 1) with the economy ailing, there would be a natural decline in job-based immigration in certain sectors because of market forces, regardless of what Trump does; 2) with America’s well-advertised failure to deal competently with COVID-19 and Trump’s ugly hate rhetoric, “immigrants with choices” may well choose other destinations (Canada is one that is already benefiting from Trump’s obsession with xenophobic immigration policies); 3) with Americans barred from entry into the EU and perhaps other countries, the vital force of immigration and its overall positive effect on the world economy will be muted in the U.S.; and 4) with the legal immigration system, including the refugee and asylum systems, shut down whatever future immigration does occur under Trump is likely to be of the extralegal variety, unscreened, unmonitored, and uncontrolled.
The latter are likely to be refugees with limited options, driven more by necessity than economics, although for many refugees persecution and economic factors are inextricably intertwined. Even here, the practical difficulties of travel during a worldwide pandemic are likely to have more of an impact than Trump’s elimination of asylum.
Indeed, our country has long benefitted from asylum seekers’ (now sadly misplaced) trust in the U.S. legal system that leads to their turning themselves in at ports of entry, surrendering near the border, or voluntarily applying at a USCIS Asylum Office in the U.S. With the U.S. legal system now in “full fraud mode” refugees stand a better chance of losing themselves in the interior than of gaining protection from a system specifically designed to treat them unfairly and abusively.
Trump claims great “success” for his abrogation of the legal immigration system and crimes against humanity. But, who really knows how many folks cross the border without our knowledge and where they end up? And, no ridiculous and wasteful wall is going to stop that.
That doesn’t mean that the extralegal immigration won’t be beneficial — past extralegal immigration has benefited the U.S. overall and often, but not always, the migrants themselves. But, by keeping migrant populations underground, living in fear and uncertainty, and subject to exploitation, we limit the immigrants’ abilities to reach their full potential and to contribute fully to our society. In other words, we limit our own capacity to get the full benefit of the reality of human migration in a global society.
In November, we have a chance to end the stupidity and cruelty and to establish a more just society that recognizes the benefits of equal justice for all and treats migrants fairly, humanely, rationally, and with respect for their legal and human rights. We can’t afford to blow it, again!
This November, vote like your life depends on it!Because it does!
Discerning a hierarchy of depravity among Trump’s provocations is not easy. His increasingly strident racism is complicating America’s reckoning with current injustices and grave historical crimes. His politically motivated sabotage of essential public health measures has likely cost thousands of lives. But there is something uniquely debased about a commander in chief who receives the salutes of soldiers while his administration does nothing about credible information on a plot to kill them.
And that is what the Trump administration seems to have done. If, as reported by multiple news sources, the White House was informed in March that Russian intelligence units were placing bounties on the heads of U.S. troops in Afghanistan, then the administration’s silence and inaction have been a form of permission.
The president’s claim of ignorance is not credible. This act of aggression would be a major escalation by a strategic rival. If the United States received intelligence about the bounties, and if response options were considered at a high level within the White House, there is simply no way the president and his senior staff would have been kept in the dark. It is information directly pursuant to Trump’s function as commander in chief.
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Read the rest of Michael’s article at the link.
Sadly, Michael, the answer to the question I posed above is “the modern GOP.”
You really appear to be a decent human being and a courageous writer. How did you ever fall in with such a disreputable gang as the GOP?
Anyway, glad you finally have seen the light. My parents were Republicans. But, to state the obvious, this isn’t your parents’ (or at least my parents’) GOP. Apparently, not yours either. Which is a good thing — at least a start.
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.
“[In Ortiz I, this] Court determined that a conviction under Minn. Stat. Ann. § 609.50, subdiv. 2(2) [obstruction of legal process, arrest, or firefighting] is not categorically a crime of violence—and, thus, not an aggravated felony—because the minimum amount of force required to sustain a conviction under that statute is less than the level of force required to constitute a crime of violence under Johnson v. United States, 559 U.S. 133, 140 (2010). Ortiz v. Lynch, 796 F.3d 932, 935-36 (8th Cir. 2015). Accordingly, we granted Ortiz’s petition for review, vacated the order of removal, and remanded to the BIA to decide whether Ortiz’s prior conviction nonetheless subjected him to removal under 8 U.S.C. § 1227(a)(2)(A)(i) as a crime involving moral turpitude.
… Pursuant to the parties’ joint motion, the BIA remanded the case to the IJ to decide the issue. Ortiz again moved to terminate removal proceedings, arguing that a conviction for obstruction of legal process under Minn. Stat. Ann. § 609.50, subdiv. 2(2) is not a crime involving moral turpitude. The IJ denied the motion, finding that Ortiz’s prior conviction was categorically a crime involving moral turpitude because (1) the statute requires intentional conduct, and (2) using or threatening force or violence to obstruct legal process entails conduct that is inherently base, vile, or depraved and contrary to accepted rules of morality. Accordingly, the IJ sustained the charge of removability under 8 U.S.C. § 1227(a)(2)(A)(i) and ordered Ortiz’s removal from the United States to Mexico on that basis. The BIA affirmed the IJ’s decision, adding that the minimum conduct punishable by the statute falls within the definition of “moral turpitude” because it involves some aggravating level of force or violence in the context of interference with important and legitimate government functions. Ortiz again filed a timely petition for review.
… [W]e conclude that the BIA erred in finding that a conviction under Minn. Stat. Ann. § 609.50, subdiv. 2(2) is categorically a crime involving moral turpitude. For the foregoing reasons, we hold a conviction under Minn. Stat. Ann. § 609.50, subdiv. 2(2) is not categorically a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i). We, therefore, grant Ortiz’s petition for review and vacate the order of removal.”
[Attorney David L. Wilson writes: “This statement is particularly helpful and could go unnoticed. The court wrote, “Further, because subdivision 2(2) is a penalty provision, rather than a “statutory element[] that criminalize[s] otherwise innocent conduct,” the presumption in favor of a scienter requirement does not apply. United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994).” The government has been trying to invoke this argument for some time, and the Eighth just shut it down. A round of applause to Anne Carlson for the first round of the fight, and Brittany Bakken for bearing with me for the second round.”]
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Bottom line: For more than five years over two Administrations on a number of charges, EOIR has been attempting to wrongfully deport this individual. This falls below the “minimum level of competence” that should be expected of an “expert tribunal” that is nothing other than a deportation factory with a fancy title. And, let’s remember that the 8th Circuit, out in the middle of “America’s Heartland,” is hardly the 9th Circuit, the 7th Circuit, or even the 4th Circuit, all of which have been much more openly critical of the BIA’s lousy performance.
The cost of “deportation at any cost” is too high for America! Whatever happened to due process, fundamental fairness, and impartial judging? Gone by the wayside! No wonder this unfair and dysfunctional system is running a largely self-inflicted backlog of more than 1.4 million known cases and “who knows how many” that are lost or otherwise “off-docket” in the EOIR morass of biased judging and gross mismanagement.
When will it end? How many will be wrongfully deported or die because one of American’s largest “court” systems (that isn’t’ a “court” at all) is allowed to continue to operate far below minimum levels of constitutionality and competence?
The Supreme Court Doesn’t See Asylum-Seekers as People — One week after saving DACA, the high court proved that its sympathies for immigrants seeking better lives are limited.
Last Thursday, the Supreme Court saved more than 700,000 immigrants from the Trump administration’s nativist buzz saw. The court ensured that these immigrants, who were brought to the United States by their undocumented parents as children, would continue to be protected by an Obama administration policy called Deferred Action for Childhood Arrivals, sparing them from deportation to countries many could not even remember. The court split 5–4, with Chief Justice John Roberts throwing his lot in with the liberals to find that Donald Trump’s rescission of DACA had been unlawful—largely because it had been carelessly effectuated, defended pretextually, but also because hundreds of thousands of young people had altered their lives in reliance on the promise that they would be immune from deportation.
In a key section of the majority opinion, Roberts highlighted the humanity of these young undocumented people, as was the hopes and dreams of their families: “Since 2012, DACA recipients have enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance” on DACA, Roberts wrote, quoting from briefs in the case. “The consequences of the rescission … would ‘radiate outward’ to DACA recipients’ families, including their 200,000 U.S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them.” The chief justice evinced frustration that the Trump administration seemingly took none of those very human interests into account.
One week later, on Thursday morning, the high court proved that its sympathies for immigrants seeking better lives are limited. In a 7–2 ruling, the justices approved the Trump administration’s draconian interpretation of a federal law that limits courts’ ability to review deportation orders. This time around, the court did not note immigrants’ contributions to the nation or acknowledge their humanity in any way. Having last week treated one class of immigrants like actual people, the court on Thursday pivoted back to callous cruelty. All of the chief justice’s kind words about DACA recipients seemingly do not apply to immigrants who—according to the executive branch—do not deserve asylum.
Thursday’s case, Department of Homeland Security v. Thuraissigiam, involves an asylum-seeker from Sri Lanka named Vijayakumar Thuraissigiam who faces likely death if he is deported because he is Tamil. Thuraissigiam was apprehended by the U.S. Border Patrol while trying to cross at the southern border in 2017. After an asylum officer and immigration judge rejected his claims, Thuraissigiam was slated for “expedited removal.” Federal law bars courts from reviewing that deportation order. But the 9th U.S. Circuit Court of Appeals found the law unconstitutional as applied to Thuraissigiam under the Constitution’s suspension clause, which limits the government’s ability to restrict habeas corpus—the centuries-old right to contest detention before a judge.
At the Trump administration’s request, the Supreme Court reversed the 9th Circuit, with Justice Samuel Alito writing a maximalist majority opinion for the five conservatives and Justices Stephen Breyer and Ruth Bader Ginsburg proffering a narrower concurrence. Justice Sonia Sotomayor penned a lengthy, vivid dissent joined by Justice Elena Kagan that accused the majority of flouting more than a century of precedent and “purg[ing] an entire class of legal challenges to executive detention.” (In his own opinion, Alito dismissed Sotomayor’s criticisms as mere “rhetoric.”)
This outcome strips due process from immigrants seeking asylum, who now have even fewer rights to a fair adjudicatory process under an expedited system that already afforded them minimal protections. It will also embolden the Trump administration to speed up deportations for thousands of people with no judicial oversight. Under this now court-approved system, immigrants fleeing their home country must undergo a “credible fear” interview, at which they must explain to a federal officer why they qualify for asylum. (The Trump administration has allowed Customs and Border Protection agents—not trained asylum officers—to conduct credible fear interviews.) If the officer finds no “credible fear of persecution,” their supervisor reviews the determination, as does an immigration judge (who is not a traditional judge but rather an employee of the executive branch appointed by the attorney general). If these individuals find no credible fear, the immigrant is thrown into “expedited removal”—that is, swiftly deported in a matter of weeks. They may not contest the government’s “credible fear” determination before a federal court. It is this extreme rule that Thuraissigiam challenged as a violation of habeas corpus and due process.
Alito breezily dismissed Thuraissigiam’s individual claims by stripping a broad swath of constitutional rights from unauthorized immigrants. First, he declared that habeas corpus does not protect an immigrant’s ability to fight illegal deportation orders. Sotomayor fiercely contested this claim, citing an “entrenched line of cases” demonstrating that habeas has long protected the right of individuals—including immigrants—to challenge illegal executive actions in court. Second, Alito held that unauthorized immigrants who are already physically present in the United States have not actually “entered the country.” Thus, they have no due process right to challenge the government’s asylum determination. Sotomayor noted that this holding departs from more than a century of precedent by imposing distinctions drawn by modern immigration laws on the ancient guarantee of due process.
Alito not only waved away these galling consequences; he seemed to laugh at them.
The upshot of the decision will mean almost certain death for Thuraissigiam and others like him. Thuraissigiam faced brutal persecution in Sri Lanka, a fact Alito did not seem to understand at oral arguments. Various officials in the executive branch shrugged off that persecution. Thuraissigiam just wants an opportunity to prove to a federal judge that these officials violated the law by denying his asylum claim. Now, thanks to the Supreme Court, he cannot. Nor can the many immigrants thrown into expedited removal by the Trump administration, which has used the process as a tool to speed up deportations across the country. Just two days ago, a federal appeals court cleared the way for the government to expand expedited removal beyond immigrants intercepted near the border to those apprehended anywhere in the nation. The administration has shown little interest in carefully considering whom it’s deporting; now many of those decisions will be rubber-stamped by executive officers and left unscrutinized by the federal judiciary.
Alito not only waved away these galling consequences; he seemed to laugh at them. Not for a moment does he appear to believe that asylum-seekers may be genuinely in fear for their lives. Among the many bon mots dropped by Alito in his opinion, he wrote: “While [Thuraissigiam] does not claim an entitlement to release, the Government is happy to release him—provided the release occurs in the cabin of a plane bound for Sri Lanka.” Given that Thuraissigiam claims he will likely be tortured to death if he is sent back to Sri Lanka, it’s not clear that line means what he thinks it does. Throughout the opinion Alito refers to Thuraissigiam as either “alien” or “respondent” and appears simply incapable of imagining that his claims are truthful.
It’s easy to miss the massive erosion of asylum-seekers’ rights in the victory last week around the triumph of DACA. But in some ways, it’s the most American outcome in the world to view DACA beneficiaries as more human because they have gone to school here and birthed children here, while scoffing at asylum-seekers, who, as part of a lengthy tradition under both constitutional and international law, simply ask the U.S. government to save their lives. Roberts, who seemed so attuned to the hardships of DACA recipients, joined Alito’s merciless opinion in full; in fact, the chief justice assigned the opinion to Alito, who has become the court’s staunchestcrusaderagainst immigrants’ rights.
The court’s split shows that a majority of justices think immigrants like Thuraissigiam are not the productive young people of the DACA case, with financial and familial ties to all that makes America great, but rather faceless masses cynically manipulating America’s generous asylum policy and overwhelming its immigration system. They believe these people do not deserve an iota of sympathy, let alone due process. That is already how many border agents viewed these immigrants: not as humans with rights, but as fraudulent parasites. The Supreme Court has now transformed that vision into law—and, in the process, allowed the executive to send more persecuted people to their deaths without even a meaningful day in court.
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Imposing death sentences without fair hearings, or indeed any real hearings at all, is bad stuff. And, Justices who justify this behavior should not be on the bench at all.
Sadly, that applies just as much to the two so-called “liberal icons” who voted with Alito and four other sneering colleagues who seemed to actually glory in being able to dehumanize another soul with the audacity to fight for his life. Frankly, this stuff is right out of the Third Reich. Read a few of the German Judiciary’s opinions of the time and see how quickly, easily, naturally, and often happily Reich jurists “justified the unjustifiable and the unthinkable.” I have no doubt that Sam Alito and some of his colleagues would have fit right in. How has American Justice gotten to this incredible “low point.”
I don’t know exactly what we can do about life-tenured judges who are unqualified for their jobs. Life tenure is there for a reason — to insure judicial independence overall, even in particular instances like this where it clearly does no such thing. And, with 200+ largely unqualified Trump appointees now on the Federal Bench, essentially “young deadwood,” the problem will get worse before it gets better.
The first step is to replace Trump and oust the GOP from the Senate. Then, methodically appoint only judges committed to equal justice for all, willing to stand up against abuses of justice by both the Executive and the Congress, and whose life experiences and legal work show an unswerving commitment to human rights and the rights of migrants to be treated as persons (fellow humans) under law.
It’s a national disgrace that with immigration and human rights the major issues clogging today’s Federal Courts, few, if any, Federal Judges have any experience representing asylum seekers in the Star Chambers known as “Immigration Courts” nor have they personally experienced the type of dehumanization, racism, torture, grotesque abuses, and unnecessary cruelty that they so unnecessarily, uncourageously, and glibly inflict on migrants and asylum seekers who indeed are the most vulnerable among us. If immigration and human rights are the pivotal issues of American justice, then we need to get Justices and judges on the bench who understand what they are doing and the dire human consequences of their actions (or inactions).
The situation of today’s asylum seekers of color is not much different from that of others Americans of color whose legal and Constitutional rights were denied, and whose humanity was intentionally degraded, by a corrupt judiciary and a legal system that intentionally failed to make Constitutonal equal justice for all a reality rather than a cruel fiction .
A nation that doesn’t demand better judges will never rise above its own mistakes and failures. And a Federal Judiciary that so obviously and intentionally lacks diversity and humanity can never properly serve the national interest.
Ditch the clueless, largely white, male “dudocracy” with their Ivy League degrees and not much else to offer. Appoint judges schooled in real life, who know what the law means in human terms and will use it to solve, rather than aggravate, inflame, or avoid, human problems! There are tons of such lawyers out there. We all know them. We need them to move from the “bullpen” to the Federal Benches, before it’s too late for everyone in America!
Folks, what we have here is “judicially-approved murder without trial.” It could also be called “extrajudicial killing.” Ugly, but brutally true! “The upshot of the decision will mean almost certain death for Thuraissigiam and others like him.” We should understand what’s happening, even if seven disingenuous and unqualified members of our highest court claim not to know or care what they are doing and refuse to acknowledge the real life consequences of their deep, dark, and disturbing intellectual corruption and their studied lack of human compassion, empathy, and decency.
Vote ‘Em Out, Vote ‘Em Out! It’s a Start On A Better Court, For America & For Humanity!
‘I Will Not Stand Silent.’ 10 Asian Americans Reflect on Racism During the Pandemic and the Need for Equality
SANGSUK SYLVIA KANG
ANNA PURNA KAMBHAMPATY
Diseases and outbreaks have long been used to rationalize xenophobia: HIV was blamed on Haitian Americans, the 1918 influenza pandemic on German Americans, the swine flu in 2009 on Mexican Americans. The racist belief that Asians carry disease goes back centuries. In the 1800s, out of fear that Chinese workers were taking jobs that could be held by white workers, white labor unions argued for an immigration ban by claiming that “Chinese” disease strains were more harmful than those carried by white people.
Today, as the U.S. struggles to combat a global pandemic that has taken the lives of more than 120,000 Americans and put millions out of work, President Donald Trump, who has referred to COVID-19 as the “Chinese virus” and more recently the “kung flu,” has helped normalize anti-Asian xenophobia, stoking public hysteria and racist attacks. And now, as in the past, it’s not just Chinese Americans receiving the hatred. Racist aggressors don’t distinguish between different ethnic subgroups—anyone who is Asian or perceived to be Asian at all can be a victim. Even wearing a face mask, an act associated with Asians before it was recommended in the U.S., could be enough to provoke an attack.
Since mid-March, STOP AAPI HATE, an incident-reporting center founded by the Asian Pacific Policy and Planning Council, has received more than 1,800 reports of pandemic-fueled harassment or violence in 45 states and Washington, D.C. “It’s not just the incidents themselves, but the inner turmoil they cause,” says Haruka Sakaguchi, a Brooklyn-based photographer who immigrated to the U.S. from Japan when she was 3 months old.
Since May, Sakaguchi has been photographing individuals in New York City who have faced this type of racist aggression. The resulting portraits, which were taken over FaceTime, have been lain atop the sites, also photographed by Sakaguchi, where the individuals were harassed or assaulted. “We are often highly, highly encouraged not to speak about these issues and try to look at the larger picture. Especially as immigrants and the children of immigrants, as long as we are able to build a livelihood of any kind, that’s considered a good existence,” says Sakaguchi, who hopes her images inspire people to at least acknowledge their experiences.
Amid the current Black Lives Matter protests, Asian Americans have been grappling with the -anti-Blackness in their own communities, how the racism they experience fits into the larger landscape and how they can be better allies for everyone.
“Cross-racial solidarity has long been woven into the fabric of resistance movements in the U.S.,” says Sakaguchi, referencing Frederick Douglass’ 1869 speech advocating for Chinese immigration and noting that the civil rights movement helped all people of color. “The current protests have further confirmed my role and responsibility here in the U.S.: not to be a ‘model minority’ aspiring to be white-adjacent on a social spectrum carefully engineered to serve the white and privileged, but to be an active member of a distinct community that emerged from the tireless resistance of people of color who came before us.”
Justin Tsui
“I didn’t think that if he shoved me into the tracks I’d have the physical energy to crawl back up,” says Tsui, a registered nurse pursuing a doctorate of nursing practice in psychiatric mental health at Columbia University. Tsui was transferring trains on his way home after picking up N95 masks when he was approached by a man on the platform.
The man asked, “You’re Chinese, right?” Tsui responded that he was Chinese American, and the man told Tsui he should go back to his country, citing the 2003 SARS outbreak as another example of “all these sicknesses” spread by “chinks.” The man kept coming closer and closer to Tsui, who was forced to step toward the edge of the platform.
“Leave him alone. Can’t you see he’s a nurse? That he’s wearing scrubs?” said a bystander, who Tsui says appeared to be Latino. After the bystander threatened to record the incident and call the police, the aggressor said that he should “go back to [his] country too.”
When the train finally arrived, the aggressor sat right across from Tsui and glared at him the entire ride, mouthing, “I’m watching you.” Throughout the ride, Tsui debated whether he should get off the train to escape but feared the man would follow him without anyone else to bear witness to what might happen.
Tsui says the current antiracism movements are important, but the U.S. has a long way to go to achieve true equality. “One thing’s for sure, it’s definitely not an overnight thing—I am skeptical that people can be suddenly woke after reading a few books off the recommended book lists,” he says.“Let’s be honest, before George Floyd, Breonna Taylor and Ahmaud Arbery, there were many more. Black people have been calling out in pain and calling for help for a very long time.”
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Read the other nine profiles and see Haruka Sakaguchi’s great photography at the link.
Racism, hate, cruelty, ignorance, dehumanization, inequality, and incompetence are the planks of Trump’s re-election “platform.”
This November, vote like your life depends on it! Because it does!
“Substantial evidence does not support the BIA’s determination that Petitioner failed to meet her burden of proof under CAT that she would more likely than not be tortured, with the consent or acquiescence of a public official, if returned to Mexico. The BIA reached its determination by misapplying our precedents regarding acquiescence of a public official and regarding the possibility of safe relocation, as well as by making or affirming factual findings that are directly contradicted by the record. Contrary to the BIA’s determination, we hold that the existing record compels the conclusion that Petitioner has met her burden under CAT. … the record also includes extensive evidence that LGBTQ individuals are subject to a heightened risk of torture throughout Mexico. Considering all relevant evidence, we conclude that the record compels the conclusion that petitioner has met her burden of proof to establish that it is more likely than not that she will suffer future torture if removed to her native country. … We grant the petition and remand for the agency to grant deferral of removal pursuant to CAT because the record compels the conclusion that Petitioner will more likely than not be tortured if she is removed to Mexico.”
One of the best things about this case is that obviously frustrated by the BIA’s “malicious incompetence” and basically contemptuous treatment of binding Circuit precedent, the Court took the unusual step of granting the CAT application outright. Often, cases are remanded to the BIA for useless “redos.” Not only can they get lost on EOIR’s totally out of control docket of 1.4 million+ cases, but that gives the BIA another undeserved chance to concoct some bogus rationale to screw the respondent.
It’s past time for more courts to treat EOIR as the hostile “justice free zone” it has become under Sessions and now Barr. The absolute disaster at the DOJ under Barr was on full, ugly display before the House this week. Courts must treat the DOJ as the unethical, biased, renegade organization that it really is rather than pretending that it still performs any legitimate functions under our
Constitution.
The Supremes might feign ignorance of the Trump regime’s institutionalized racist assault on migrants, particularly those seeking protection. But, some of the lower Federal Courts finally are catching on to what’s happening here. How is this type of systemic, illegal, incompetent, and unethical performance by Billy Barr’s wholly-owned “courts” that are not “courts” at all deemed acceptable? People’s lives are at risk!
