"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.
The panel held that substantial evidence did not support the immigration judge’s determination that Alvarado- Herrera failed to establish a reasonable fear of torture with the consent or acquiescence of a public official, given Alvarado-Herrera’s specific assertions of police complicity in the 18th Street gang’s violent acts. Noting that the asylum officer refused to credit Alvarado-Herrera’s assertions, which were based in part on media reports and common knowledge among Hondurans that it is well known that the police work for the gangs, that the police are allied with the 18th Street gang in particular, and that the police not only allow gang members to harm others but also provide information to gang members to help them find and kill people, the panel wrote that it was unclear what additional evidence the asylum officer expected Alvarado-Herrera to produce at that stage of the proceedings. The panel observed that non-citizens in reinstatement proceedings who express a fear of returning to their home country typically appear for a reasonable fear interview within a short time of their
ALVARADO-HERRERA V. GARLAND 5
apprehension by immigration authorities, and that many, like Alvarado-Herrera, are being held in detention facilities and do not have legal representation. The panel wrote that, as a result, they cannot realistically be expected to produce for the asylum officer’s review the kind of detailed country conditions evidence that would be introduced during a merits hearing before an immigration judge. The panel wrote that such a demand would be inconsistent with the purpose of a reasonable fear interview, which is simply to screen out frivolous claims for relief in as expeditious a manner as possible, and if a non-citizen provides an otherwise credible account concerning his fear of torture, his own statements can supply adequate support for claims about country conditions, at least for purposes of satisfying the ten percent threshold necessary to pass a reasonable fear screening interview. The panel remanded with instructions for the agency to provide Alvarado-Herrera a hearing before an immigration judge only as to the merits of his claim for protection under CAT.
2) 10th Cir. Says IJ Muffed Analysis Of Mexican CAT Claim!
“Maria Torres de Lopez, a native and citizen of Mexico, appeals the denial of her application for deferral of removal under the United Nations Convention Against Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the petition for review and remand for further proceedings. … [W]e are compelled to conclude it is more likely than not that El Tigre [of the Sinaloa Cartel] would be aware if Torres de Lopez is removed to Mexico, and that El Tigre and his direct associates would have both sufficient motivation and ability to locate Torres de Lopez anywhere in Mexico. But the evidence does not compel the conclusion that the Juárez or Sinaloa cartels have a sufficient institutional motivation to locate Torres de Lopez anywhere in Mexico. And the questions that remain are ones the IJ did not reach—if El Tigre or his direct associates found Torres de Lopez in Mexico, would they inflict any harm on her, would that harm be severe enough to constitute torture for CAT purposes, and would Mexican public officials instigate, consent to, or acquiesce in such harm? We may not answer those questions in the first instance and remand them to the IJ for initial consideration. … All this brings us to the fourth and fifth steps in the IJ’s framework—if El Tigre or his direct associates find Torres de Lopez, will they harm her and, if so, will the harm amount to torture? … [W]e must remand to the agency to conduct the inquiry into the fourth and fifth steps in the first instance. … We grant the petition for review and remand to the agency for further proceedings consistent with our decision.”
[Hats off to Stephen W. Spurgin!]
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Sadly, “reasonable adjudicator” wouldn’t encompass many of those currently serving in Garland’s holdover corps of Immigration Judges and his “Millerized & Trumpitized”BIA. In particular, the horrible job done by, and the bias against due process for those seeking CAT protection shown by, Attorneys General and the BIA over the past three Administrations is absolutely disgraceful.
Yet, it continues, unabated, today under Judge Garland! It’s basically “Jim Crow Justice” dressed up in a Sunday suit. One could almost imagine a picture of Chief Justice Roger Taney hanging in the BIA’s conference room.
Roger Taney PHOTO: Matthew Brady Public Realm Discredited CJ remains a hero to many Miller/Hamilton/Sessions holdovers at Garland’s DOJ because of his aggressive “Dred Scottification” of the other! One of Stephen Miller’s soul mates, this dude’s life was defined by his unyielding belief that all men aren’t created equal and that only powerful White Guys have a right to life, liberty, and the pursuit of happiness! And, that women don’t even exist before the law!
The obvious lack of competence in a “judiciary” regularly attempting to send individuals back to possible torture in violation of due process and the statute should prompt decisive corrective action from those in charge of this dysfunctional system. But, to date, it hasn’t!
Instead, what have Biden, Garland, & Mayorkas done? Continued the illegal practice of returning asylum seekers and others to possible death or torture without any process at all. Then, they have the gall to send their “flackies” out to claim that the “victims” are the “problem” for exercising their legal rights to seek protection, at a time that apparently is “politically inconvenient” for the Biden politicos to offer a system that provides that legally-required protection.
Looks pretty “Stephen Millerish” to me, not to mention “Catch 22!” How dare you cross our border seeking due process and turn yourself in to the Border Patrol when can go to a legal port of entry, present yourself, and be immediately sent back to death with no process at all! Don’t you understand how American “justice” works? Go back to your own countries from where you were forced to flee where, if you live long enough, you can’t apply under our non-existent overseas refugee system. Is that perfectly clear?
The Presidential election was over on Saturday, Nov. 7, 2020! Biden and Harris campaigned on a platform of immigration and human rights reforms that included ending the many illegal, inhumane, and counterproductive policies of Trump/Miller, restoring the rule of law, and re-establishing honesty and human dignity in immigration, asylum, and refugee processing.
Yet, in the 10 weeks between the conclusion of the election and the inauguration, “Team Biden” and those who were under serious consideration for leadership positions in the thoroughly broken and dysfunctional immigration bureaucracy came up with no viable plans to “hit the ground running” with the necessary dramatic, yet achievable, changes. That’s something that I submit hundreds of “practical experts” — all of them in the Democratic camp — could have achieved had they been tapped.
It certainly was no mystery that the border and the mess at DHS, EOIR, OIL, and the SG’s Office would have to be addressed immediately — “day one or day two stuff!” Nor, would it take any deep thinking to recognize that immigration would be the overarching issue connecting social justice, racial justice, economic recovery, court reform, foreign affairs, the environment, and public health.
Nor would it have taken much awareness to recognize that the GOP, who didn’t even bother advancing a platform or constructive ideas during the campaign, would make and “rev up” appeals to hate, fear, racism, White Nationalism, myths, fabrications, distortions, and outright lies about “security threats” (actually threats to “white culture and power”) posed by desperate individuals, many of color, merely seeking legal refuge and fair consideration under our legal system. So, getting the legal asylum and refugee systems functioning again should have been a top priority — simultaneous with COVID relief!
Additionally, there were dozens of smart journalists out there who were “on top” of the Miller/Trump White Nationalist nonsense, and had figured out how to cut through the BS and obfuscation to explain what the law and common sense requires, in understandable terms. Thus, the Biden team even had a “golden opportunity” to put together a group of “immigration/human rights/rule of law flackies” who could both educate insiders and in public run circles around the likes of Fox News, right wing radio, and magamoron White Nationalist nativists like Cruz, Cotton, Hawley, and McCarthy. All it would have taken is competence and courage — two qualities often in short supply in Dem Administrations when immigration, human rights, and due process are at stake.
Yet, nearly three months into the Administration, and a full five months after the election was decided, the Administration’s approach to this key issue can best, and most charitably, be described as “Amateur Night at the Bijou.”
During five months since the election, the Biden Administration has quickly moved to set up a chain of nationwide “recruiting centers” for the their Immigration Courts, immigration bureaucracy, refugee administration, human rights PR groups, and liaison with Hill Dems. Results have been astounding! PHOTO: Thomas Hawk Creative Commons
Most seriously, the Immigration Court and the rule of law remain in shambles — with Judge Garland failing to take the necessary elementary steps to reverse the Trump/Miller DOJ’s misogynist, racially driven assault on the rule of law for asylum seekers of color. This sends an ugly shockwave of failure throughout the Biden-Harris agenda and continues to de-stabilize an already shaky American justice system.
It also “pisses off” the Administration’s would-be friends and supporters while energizing its most vociferous enemies! Additionally, it demoralizes and disrespects those remaining at EOIR, many who have struggled though the last four years trying to hold some portions of the fort while waiting for salvation, potential allies — already on the in side — who will be necessary for the “reclamation project.”
Some have even taken the desperate step of anonymously reaching out to Courtside for help in raising consciousness about the astounding level of injustice, incompetence, and anti-immigration culture that Judge Garland is countenancing at EOIR. They just can’t wrap their heads around it!
As they have pointed out, Sessions, who once (in the distant past, before overt racism came part of the GOP platform) was deemed unfit by his own party for a Federal Judgeship because of his racist record, and his hench-people “hit the ground running” with their White Nationalist misogynistic agenda at EOIR. This was an agenda basically drafted by nativist groups. They moved rapidly and with purpose to remove, force out, disempower, isolate, and/or marginalize anyone at EOIR thought to harbor the heretical belief that asylum seekers, migrants, women of color, and their lawyers were humans or possessed any rights whatsoever. They obliterated any “best practices” — they few things that actually were working at EOIR. They also filled every vacant position with nativist toadies and hacks, packed the Immigration Courts and BIA with more “judges,” even as they were more than doubling the already huge backlog with their “Aimless Docket Reshuffling” and endless due-process- killing, yet fundamentally ineffective, enforcement nobly gimmicks.
Sessions even proudly announced his war on refugee women of color and their lawyers at am “EOIR training session” for “his judges,” drawing stunned silence from many, but also cheers from some “magamoron judges” in the audience. Somehow, over the years, indolent Article III Judges overlooked the obvious lack of ethics in Sessions’s performance as well as the crystal clear lack of Matthews v. Eldridgefundamental due process in a farcical “court” system. A “court parody” where the racist head prosecutor, who also asserted himself as the de facto head of DHS enforcement, urged “his judges” on to inflict ever more rapid and unlawful acts of desecration, dehumanization, and capricious treatment upon those they were supposed to be judging fairly and humanely.
Some of the “survivors” within EOIR expected Judge Garland, once a highly respected Court of Appeals Judge, former Supreme Court nominee, veteran of the DOJ in better times, and relatively recent descendent of immigrants, to put a quick end to the unconstitutional nonsense at EOIR, cast out the “Miller/Hamilton perps,” their many EOIR toadies, and the “go along to get alongs” who had created this disgraceful and dysfunctional mess at what was once supposed to be a “bastion of due process.” They expected Garland to bring in a team of respected “immigration/human rights/due process pros” and to elevate those in the system who had stood tall against the abuses of due process and humanity over the past four years.
Alas, those survivors quickly discovered that Garland is largely oblivious to the ongoing clown show at EOIR, the continuing human carnage it causes on a daily basis, the squandered potential to boost due process and racial justice in America, and the rapid erosion of his support and his image among those who courageously and often successfully fought the “Miller neo-Nazi plan” to dismantle the American justice system.
Vainly, they wait for Garland’s recognition of the heroic role of the National Association of Immigration Judges (“NAIJ”) in maintaining some vestiges of justice and professional training at EOIR and, most important, in publicly exposing, including to Congress, the ongoing fraud, waste and abuse of public trust carried out by the Trump/Miller kakistocracy at EOIR. They are distraught by Garland’s inexplicable failure to condemn “Billy the Bigot’s” totally outrageous actions in frivolously moving to “decertify” the NAIJ as punishment for their exposing his many illegal activities and abuses of honest government at EOIR.
They are absolutely incredulous that a “100 page study,” conducted by those having no real expertise in the Immigraton Court, would be viewed as a substitute for the immediate removal and replacement of dysfunctional personnel and a strong public commentment to root out injustice, racism, and misogyny, reject and repudiate bogus precedents, institute aggressive due process reforms, and promote true quasi-judicial independence at EOIR.
They are particularly puzzled by Garland’s permitting the conducting of idiotic clown shows — misnamed “Town Halls” — throughout the country further insulting and inflaming the long-suffering stakeholders and advertising EOIR’s continuing failure to run like a court and respect the input, expertise, and legitimate needs of those same “stakeholders.” They are baffled when there are so many great “due process role models” out there who could and should be sending the exact opposite message — that “the clown show is over” and the pros are now in charge of restoring justice and sanity @ EOIR!
They can’t fathom how anyone, let alone a former Article III Judge, could believe that judicial dockets across America can be micromanaged by non-judicial bureaucrats in Falls Church and DC who have never successfully managed a docket in their lives, know little about the harsh realities of today’s dysfunctional Immigration “Courts,” and who operate in blissful studied ignorance of the many localized factors that go into successful docket management at all other functioning court systems in America.
And, although it might be below Judge Garland’s “radar screen,” human lives are actually being destroyed and human suffering multiplied while he and his “spear carriers” diddle over how to fix EOIR! To quote some of the Hill Dems yesterday, “This is stupid!”
(Duh, who outside the Biden camp would have failed to predict that yesterday’s idiotic “two-step” on the refugee cap would go over worse than a lead balloon? The Biden immigration “advisors” might think that refugee lives don’t matter, but many Dems living in the real world and on the Hill don’t see it that way!)
Garland has also failed to place competent judicial leadership in charge of EOIR and the BIA and to make it clear that institutional disdain for due process, best practices, and human dignity will no longer be the ”order of the day” in America’s largest, and perhaps most important, Federal Court System. A rather atrocious start for an Administration struggling to put the Trump-Miller scofflaw White Nationalist agenda behind them!
Just how does one “pull that off” with a bunch of Miller cronies, and Sessions/Barr nativist judges (many incompetent to fairly apply and interpret basic asylum, immigration, and due process laws) still dominating the scene in America’s most dysfunctional and dehumanizing “judiciary.” While Judge Garland might have forgotten this during his “above the fray” tenure in the “judicial ivory tower,” leadership, priorities, and symbolism are really important in government! Right now, they are all headed 100 mph in the wrong direction at the DOJ — for no obvious reason!
Garland, supposedly the “people’s” chief lawyer, has also failed to push Mayorkas and the White House for a restoration of the legal asylum system at the border! In 100 days, Mayorkas and Garland could have supplemented the Asylum Officer corps with retirees and private sector refugee/asylum experts and gotten them down to the border to do honest, efficient credible fear screening. Obviously, reopening timely legal screening at legal ports of entry would reduce the incentives for crossing the border elsewhere.
They also could have energized human rights and pro bono NGOs to represent those “screened in.” Garland could have gotten both sitting and retired Immigration Judges with strong records of granting asylum (check TRAC, it’s all set out in plain view) working on these cases, while clearing the dockets of hundreds of thousands of backlogged cases going nowhere in any event. See Greg Chen & Professor Peter Moskowitz.
Garland could have appointed competent Appellate (or even “Appellatte”) Immigration Judges at the BIA (acting, if necessary until final selections can be made) to issue positive precedents on asylum, CAT, withholding, cancellation of removal, adjustment of status, administrative closure, and docket management to stop the endless nonsense and idiotic, justice-killing, enforcement gimmicks and “Aimless Docket Reshuffling” imposed by the Trump/Miller crowd of malicious incompetents.
Secretary Mayorkas and Secretary Becerra could have invoked and energized the now largely dormant refugee resettlement apparatus in the private/NGO sectors to temporarily resettle arriving children and families in a humane, orderly and efficient manner.
Yesterday’s stunning“unforced error” on refugee processing is just the latest example that Biden’s advisors don’t “get” immigration and need to be replaced with experts; experts who understand the fundamentals, believe in the generous, humane, restore the rule of law platform he and Harris ran on, and can explain it in clear, compelling terms. The “right folks” are “out there” — that’s the problem, “out there” instead of inside solving problems and moving the train in the right direction.
It’s not rocket science:
Immigration is good. 98% of Americans are immigrants or descended from immigrants. That immigration has produced some scoundrels, insurrectionists, liars, and ingrates like the Trumps, Cruzes, Cottons, McCarthys, Taylor-Greenes, Millers, Kobachs, etc., of our world doesn’t change that overall equation;
Refugees and asylees (refugees granted status at our border or in the US when our legal system is functioning — it isn’t now) are essential components of legal immigration;
We need and must have significantly more legal immigration, particularly if we want to maintain a robust economy and a dynamic, innovative society, in light of population losses from the pandemic and low birth rates;
Applying the Refugee Act of 1980 in a fair, generous, humane manner that furthers due process of law isn’t “an option” for debate or a matter for more “studies” — there are more than enough of the latter our there anyway. The problem is that the folks who did them and can solve the problems remain on the outside rather than running EOIR! It’s a legal and moral imperative! Garland’s function isn’t coming up with more failed, illegal gimmicks to avoid granting asylum or aid misguided law enforcement, make a few cosmetic changes to appease advocates, or engage in more boneheaded “revolution by evolution” (see Obama Administration) approaches at EOIR! It’s getting our legal asylum system functioning again at EOIR and also at USCIS in a robust, competent manner with real, independent, expert judges and professional judicial administrations who can do the job;
That also means publicly and virtuously standing up for the legal and Constitutional rights of the most vulnerable among us — per MLK Jr. — and having the guts and presence to “take it to” magamorons like Miller, Cruz, Cotton, McCarthy, and other GOP White Nationalist hate mongers who are destroying our nation and poisoning the well of our democracy with their xenophobic myths and “solutions” that actally are “crimes against humanity!” When in power, those folks had no problem publicly advancing and even touting their racist lies and ethnic slurs, as they continue to do! Why is Garland “swallowing the whistle” on rooting out and condemning institutionalized racism, misogyny, dehumanization of the other, incompetence, and scofflaw behavior @ EOIR?
Obviously, those advisors who told Biden to release the “Miller-level” refugee cap yesterday believed in neither the Biden election platform nor the positives of robust legal immigration. They also lacked the knowledge and self-confidence to “sell” an honest, realistic, humane human rights and immigration agenda that is the key to our national future. They also were woefully ignorant about and totally “misplayed” the strong political and public support for refugees and the critical role that immigration and human rights advocates play within the Democratic Party.
Currently, the inability of the Biden Administration to bring competence, positivity, the rule of law, and creative thinking to their immigration/human rights program is weighing down and “sucking much of their air” from the many things they are getting right.
It’s past time to end “Amateur Night at the Bijou” and bring in the pros. Before it’s too late!
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! Judge Garland, End the Disgraceful EOIR Clown Show, Now🤡🦹🏿♂️🏴☠️!
6) No, they can’t. Casey would be right home with the gang at EOIR HQ and also @ “Main ‘Justice.’”
If you got 100%, congratulations, you have won the “Amateur Night at the Bijou” competition. Although that makes you over-qualified to become an “Appellatte Immigration Judge” you will receive a free Starbucks coupon redeemable for a latte of your choice, to be issued only tomorrow!
WASHINGTON—President Biden is set to sign an executive order keeping the refugee admissions cap for this year at a record-low 15,000, but eliminating Trump administration restrictions on which types of refugees qualify under that cap.
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Read Michelle’s full article at the link.
Administrations come, Administrations go. One constant: Human rights remain at the very bottom of the political “to do” list! It’s always a tough time to be a refugee. But, maybe even worse when you thought that, finally, there was a little hope on the horizon!
Sad times for some very vulnerable people and their tireless advocates.☠️😥
Dead Refugee Child Washes Ashore in Turkey — Every once and awhile, a dramatic picture makes us stop and think about the plight of refugees. BUT, NEVER FOR LONG! PHOTO: independent.co.uk
TIJUANA—In the weeks after Joe Biden’s inauguration, migrants across the city of Tijuana began to leave the various shelters and apartments where they’d been living in favor of an open-air encampment just north of the city’s center. It’s not a cheerful place; people have little to eat and there’s no running water. But it has a crucial location: It’s right next to the El Chaparral Port of Entry, the nearest legal crossing into the United States. Anticipating that the doors to the U.S. might soon open, they set up at the very foot of the country’s entrance.
In February, Rosemeri, an asylum seeker from El Salvador, says she pitched a tarp next to just two others. By early March, it had grown into a shantytown of more than 1,000 people, and today as many as 2,000 migrants — most of them families with children — brave the elements each day and night. Together, the makeshift community decided on a name for the tent city: La Esperanza, The Hope.
Rosemeri, like most people in the camp, is not a new arrival to Tijuana. She left her home in El Salvador in 2019, fleeing threats against her life from the gang that controls her neighborhood. Her plan was to request asylum in the U.S. But by the time she arrived at the southern border last April, a month into the Covid pandemic, it had been closed indefinitely to asylum seekers by a Trump administration public health order. Since then, she and tens of thousands of others have had no choice but to wait in northern Mexico, shuffling from shelter to shelter for months, hoping for a change in policy.
“We are Salvadorans, Hondurans, Haitians, Cubans, Mexicans, Nicaraguans,” she told me of the residents of La Esperanza. “We are here, all of us, waiting.”
The early months of Biden’s administration have been shadowed by a major increase in immigration, with border agents encountering more than 100,000 people attempting to cross unauthorized in February and more than 170,000 in March, a 15-year high. Critics on the right blame the president’s welcoming rhetoric, saying that after Donald Trump’s hard-line tack toward the border, it’s no wonder migrants are rushing in under supposedly softer leadership. But migrants themselves have a very different view: The issue isn’t Biden extending a hand; it’s that he hasn’t figured out what he wants to do — and has kept the legal pathway closed in the meantime.
Despite promising a new approach, Biden has left the effective asylum ban in place, with few exceptions. Realizing they have no prospect for legal entry into the U.S. anytime soon, many migrants like the ones here, stuck in Tijuana without a safe home to return to, are making the painful decision to try to cross the border outside the proper channels.
“We want to do this the right way,” insists Rosemeri.
The problem for people like her is that there is currently no “right way.” The Biden administration says this is all a work in progress. “We’re in the middle of a global pandemic, and it’s going to take time to rebuild robust asylum processing infrastructure at our borders,” an administration spokesperson told me in an interview last month. The White House did not respond to specific questions for this story.
Republicans in Washington have been saying Biden is too lenient, but people on the ground in Mexico suggest the root of the recent rise in unauthorized border crossings is actually the president’s prolonged maintenance of the most restrictive of his predecessor’s policies: the near-complete cutting off of asylum, a form of legal immigration.
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Read Jack’s much longer full article at the link. It’s one of the few accurate, insightful pieces of reporting I’ve seen on the “overhyped yet generally mis-understood” human catastrophe at continuing to unfold at our southern border.
The problem starts, but by no means ends, with Judge Garland’s mind-boggling failure to grasp and take steps to end the deadly clown show @ EOIR! You can’t re-establish the rule of law and enforce the Constitution with inept holdover bureaucrats and unqualified Trump-Miller appellate judges in charge of the critical “retail level” of the American justice system!
Get some real, expert judges, competent judicial administrators, and fearless legal leadership, dedicated to human rights, fundamental fairness, and due process for all, into key positions @ EOIR before this system gets any further out of control, creates additional disorder throughout our legal system, and destroys more human lives!
The folks who can start fixing this are out there. Some of them (sitting Immigration Judges like Judge Dana Leigh Marks, Judge Amiena Khan, Judge Noel Brennan, Judge, Janette Allen, Judge Dorothy Harbeck, Judge Mimi Tsankov, and others) are even on the payroll outside the DC area. Many others in the private sector should already have been vetted and on the job solving problems, at least on a temporary basis!
(Let’s start, but not end, “Project Restore Due Process & Asylum Integrity,” with, say, Dean Kevin Johnson, Associate Dean Jaya Ramji-Nogales, Professor Karen Musalo, Michelle Mendez, Professor Ingrid Eagly, Marielena Hincappie, Lauren Wyatt, Professor Phil Schrag, Professor Andy Schoenholtz, Heidi Altman, Professor Debbie Anker, Judge (Ret.) Ilyce Shugall, Judge (Ret.) Rebecca Jamil, Professor Michele Pistone, Claudia Valenzuela, Claudia Cubas, Professor Jill Family, Professor Raquel Aldana, Professor Mary Holper, Liz Gibson, Greg Chen, Professor Peter Moskowitz, Laura Lynch, Dree Collopy, Professor David Baluarte, Professor Maureen Sweeney, Professor Lenni Benson, Eleanor Acer, Adina Appelbaum, Professor Elora Mukherjee, Professor Erin Barbato, Aaron Reichlin-Melnick, Jason “The Asylumist” Dzubow, Professor Alberto Benitez, Professor Paulina Vera, Professor Cori Alonso Yoder, Professor Kari Hong, Professor Denise Gilman, Tess Hellgren, Simon Sandoval-Moshenberg, Professor Laurie Ball Cooper, Associate Dean Jayesh Rashod, Ben Winograd, Associate Dean David Baluarte, and work from there! All of them are head, shoulders, knees, and toes above the current EOIR senior management and Appellate Judges on the BIA.)
Recently, I made these points in speaking to a group of retired lawyers who had no prior background in immigration law. At the end, one of them said: “The fix you described doesn’t sound that difficult. Why hasn’t it happened?” BINGO!
It’s not rocket science! But apparently “above the pay grade” for “Team Biden!”That’s a shame for American justice, any international leadership capability we might still have on this issue, and, most of all, for the vulnerable human beings that Biden, Mayorkas, and Garland have left “twisting in the wind.”
The Biden/Garland Image of Legal Asylum Seekers & Their Supporters” “Twisted by the Wind” By Ron Strathdee
I can assure the Biden folks that continuing the Trump/Miller policies and leaving their “plants and toadies” in place won’t win a single GOP vote — on anything! Truth, facts, the law, and human decency play no role in today’s GOP. You could shoot everyone dead at the border (as opposed to sending them back to Mexico and the Northern Triangle to die) and magamorons like Cruz, Hawley, and Cotton will still claim that you have an “open borders policy.”
However, your lack of positive action on asylum and refugee issues will continue to anger and betray your own supporters and mobilize them to oppose your “tone-deaf” and ineffectual policies, in court, in the media, and in politics. Doesn’t sound like a smart move to me!
Here’s the real irony. Liberal House Dems have invested in a DOA legislative effort (already “shot down” by Speaker Pelosi) to expand the Supremes. Meanwhile, over at the DOJ,Judge Garland is squandering his chance to completely rebuild and refocus the nearly 600 strong (now totally dysfunctional) Immigration Judiciary into something really special (in a good, rather than an evil, way).
That happens to be the most powerful and readily achievable way of creating a progressive, due process oriented, intellectually dominant, expert “model judiciary” that will remake the “retail level” of American justice, save human lives, advance correct practical, sensible applications of the law and the Constitution that will actually save lives, teach “best practices,” promote racial justice, and change the face of American justice for the better.
Better judges for a better America! It starts with the foundational “retail level” of our justice system — the Immigration Courts. Unlike packing the Supremes, it’s realistically achievable with courageous focused leadership (not the current failed group and indifferent leadership from Judge Garland.)
“Personnel is policy” — big time! Too bad for all of us that Judge Garland doesn’t seem to “get it.”
In that, his “grasp of the obvious” seems to be several levels below that of Trump, Miller, the Federalist Society, the Heritage Foundation, and Mitch McConnell. Think what you might, that gang has run circles around Dem politicos for years. Jeff “Gonzo Apocalypto” Sessions and Billy Barr “got” the importance of expanding the BIA and the Immigration Judiciary and “packing” them with many unqualified anti-asylum restrictionists who would do their bidding in undermining and destroying American justice and “Dred Scottifying” the “other,” particularly those of color, with a solid dose of mind-numbing misogyny thrown in.
To date, (with a few exceptions, like removing former Director James McHenry) Garland has failed to remove or transfer these unqualified jurists (and incompetent administrators) and start bringing in better ones, even though he has the available tools to have commenced by now. Indeed, several Miller cronies are still wandering around the Falls Church Tower in key positions, while other members of the Trump Administration’s “Asylum Denial Club” continue to crank out nativist injustice at the BIA. A number are notorious for their overtly hostile attitudes toward female asylum seekers of color and their attorneys. Yet, asylum seekers and their lawyers continue to suffer unjust and unprofessional treatment at EOIR while their abusers continue unabated in Garland’s name!
Aggressively “removing the deadwood” also sends strong messages throughout the system that the “dehumanize, deny, and deport culture” ingrained and actively encouraged at EOIR over the past four year is over!
Meanwhile, over at the broken SG’s Office, Garland is getting ready to defend one of the stupidest, most legally inane, and insanely counterproductive from a policy standpoint positions in recent memory (and that’s saying something given the performance of the Trump SG) in Sanchez v. Mayorkas . The Garland DOJ is actually committing “unforced error” by defending a clearly wrong interpretation of the TPS statute that will unnecessarily screw long-time law-abiding TPS holders, many of them spouses of U.S. citizens, who could otherwise qualify for legal immigration under current law. Shafting the VERY INDIVIDUALS the Biden Administration pledged to help and keeping them in “eternal legal limbo” while unnecessarily outraging their lawyers and potential allies. What sense does that make? If “Team Garland” can’t recognize and pick the “low hanging fruit” in the battle to restore legality and sanity to our immigration system, it’s going to be a long four years.
Professor David Martin, one of the top minds in American law, in any field, and a “vet” of past Dem Administrations, laid out the possible solutions in a crystal clear manner in Just Security. But, apparently when you’re caught up in running “Amateur Night at the Bijou” you can’t be bothered to listen to the experts who have “been there before” and learned from their experiences!
Judge Garland is recruiting folks for his SG’s Office who will continue to make the same wrong-headed arguments on immigration cases that the past two Administrations did. No Immigration or human rights expertise necessary. Check your common sense and humanity at the door. PHOTO: Thomas Hawk Creative Commons
This could be our “last clear chance” to save American democracy! Right now, it’s going to waste! That’s something that should outrage and motivate all of us who believe that “due process for all persons” means exactly what it says!
Asked repeatedly (by me and others) what accounts for Biden’s delay, White House officials have struggled to answer. Sometimes they try to blame Trump, complaining that his administration left a system in “disrepair” that requires “rebuilding.” No doubt, Trump wrought a lot of damage upon the immigration system, and more resources would be necessary to reach the much higher refugee admissions that Biden claims he wants for the next fiscal year (125,000); currently, there aren’t enough people sufficiently far along in the refugee-screening pipeline to meet that goal.
But none of this explains why the few thousand already fully vetted and deemed “travel-ready” by the State Department as of early March have not been allowed in. The only thing preventing their entry is Biden — who refuses to do the right thing and sign a simple document.
The only explanation I can fathom for what’s going on is that the White House fears ordinary Americans will confuse the refugee resettlement system with the surge of migrants at the southern border. “Refugees” and “asylum seekers” might sound synonymous, but the groups are subject to different sets of laws, screening procedures and executive authorities. One key difference is that refugees apply from abroad and are screened for eligibility before they arrive; asylum seekers apply from within our borders or at a port of entry.
In other words, refugees are doing precisely what both Biden and Republicans urge those fleeing persecution and violence to do: staying abroad, and not crossing into the United States unlawfully; proving to U.S. and international officials that their lives are indeed in danger, and that they meet the legal requirements for resettlement; enduring extensive screening to prove they don’t threaten national security or public health; and then patiently waiting their turn for admission, a process that usually takes years.
And how is Biden rewarding them? The same way Trump did: by slamming the door.
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Read Catherine’s complete article at the link.
[The Biden Administration] fears ordinary Americans will confuse the refugee resettlement system with the surge of migrants at the southern border.
Wow. In 50 years of “hanging around” the migration/human rights/political scene in D.C., I’ve heard plenty of insanely lame, cowardly excuses for not doing the right thing. But, this is “Top Five” material!
I have ideas on how to solve this problem, quickly:
Invest the “big bucks” to hire Catherine as the Biden Administration’s “Head Immigration Flackie.” She can explain the situation in terms that the American people will understand. That’s what Catherine does! Brings clarity, humanity, and common sense to complicated situations that flummox politicos and press offices.
Alternatively, get a “Loaner Law Student” from the Georgetown Law CALS Asylum Clinic. In two decades of working with CALS students in court, the classroom, and elsewhere, I’ve never run into one who doesn’t have a deeper understanding of, and better ability to explain, refugee and asylum policy than any of the “inept talking heads” the Biden Administration has thrown into the fray so far.
Georgetown Law
Another alternative: Hire Don Kerwin, currently the Executive Director of the Center for Migration Studies (“CMS”) to fix and explain the Administration’s (so far) mind-boggling failure to re-establish our refugee and asylum programs — actually both legal and moral obligations (although you wouldn’t know that by listening to the mindless negative natter from politicos of both parties). Don probably knows more than any living person about the amazing, quantifiable, benefits that refugees and asylees bring to our nation and is an expert at puncturing all of the White Nationalist myths and fear-mongering that have driven these essential programs into complete failure over the past few years.
Donald M. Kerwin Executive Director Center for Migration Studies
It’s also worthy of note that because of the Trump Administration’s “malicious incompetence” combined with the Biden Administration’s “willful incompetence,” against the background of an Attorney General unwilling to speak out and stand up for the legal rights of refugees, asylum seekers, and people of color in general, (just what is the purpose of an Attorney General who won’t stand up for the people — some of us thought, erroneously I guess, that we had voted that “model” out of office last November) we have no refugee program in Latin America and we have illegally closed ports of entry to legal asylum seekers.
So there is no regular system for asylum seekers to apply in an orderly fashion in accordance with our international, statutory, and Constitutional (not to mention moral) obligations. In violation of the mandatory provisions of Article 33 of the U.N. Convention, incorporated by the Refugee Act of 1980, every day we return legitimate refugees to danger, torture, or death without any inquiry at all. The “law violators” here aren’t the desperate folks vainly, yet gamely, trying to apply for asylum under our lawless system. It’s us!
Maybe, that’s why the Biden Administration doesn’t want anyone to understand what they really are doing and how wrong-headed it is!🤮👎🏴☠️
Congrats to Professors Benitez and Vera and GW Law!
“Is there some problem here?” “Random violence?” “Mere common crime?” “Reasonable state protection?” Does Attorney General Merrick B. Garland share the views of one of his predecessors, Jeff “Gonzo Apocalypto” Sessions that lives of of brown-skinned refugee women don’t matter? Is that why Garland hasn’t revoked Matter of A-B-? Is that why Trump/Miller “plants” with notorious records of anti-asylum misogyny directed at Central American women continue to serve as “Appellate Judges” on Garland’s BIA even as refugee women continue to be turned back to “death without due process” at our borders? Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
If YOU were a refugee woman pleading for YOUR LIFE in Immigration Court, who would YOU want as the Judge?
This Stephen Miller clone holdover from the Trump Administration:
“Appellate Immigration Judge” approved by Stephen Miller to find the “final solution” for female refugees of color Image: Hernan Fednan, Creative Commons License
Or these internationally-renowned practical scholar-experts in gender based asylum:
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings LawProfessor Deborah Anker Director, Harvard Law Immigration & Refugee Clinic PHOTO: Harvard Law
This might also be a good time to watch (or re-watch) the following video short featuring the “real” Ms. A-B- (and her lawyers) who was arbitrarily targeted by White Nationalist “Gonzo Apocalypto” Sessions to receive an unwarranted “death sentence” in violation of due process!
So why is Judge Garland retaining the “Trump-Miller-Sessions-Barr BIA” rather than replacing them with much better qualified immigration/human rights experts dedicated to due process like, for example, Alberto Benitez and Paulina Vera?
👍🏼🇺🇸⚖️🗽Due Process For Refugee Women! Tell Judge Garland To End Institutionalized Misogyny @ EOIR!☠️🤮⚰️👎🏻Remove Anti-Asylum Zealots & Those Unwilling To Stand Up For Due Process For All Asylum Seekers From The BIA! Appoint Real Judges To Restore Due Process!
Judge Garland is looking for 100 new Immigration Judges to eliminate the 1.3 million backlog by the end of the century. No expertise necessary! PHOTO: Thomas Hawk Creative CommonsAline Barros Immigration Reporter VOA News PHOTO: Twitter
U.S. immigration courts, already swamped with a backlog of 1.3 million cases, are ill-prepared to handle a crush of new asylum claims filed by a rising number of people crossing the U.S.-Mexico border, especially children traveling alone, current and former immigration judges told VOA.
. . . .
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“The backlog has grown,” said Jeffrey Chase, a former immigration judge and senior legal adviser at the Board of Immigration Appeals. He added there are two ways to handle the situation.
“The response to this usually is: Hire more judges. And I think the response should be: Let’s be smarter about who we put into court and how we prioritize the cases and how we handle the cases,” Chase told VOA.
. . . .
Hon. Dana Leigh Marks U.S. Immigration Judge San Francisco Immigration Court Past President, National Association of Immigration Judges
Dana Marks, a sitting immigration judge in San Francisco who spoke with VOA in her capacity as president of the National Association of Immigration Judges (NAIJ), said the increase in immigration court cases has been gradual and “that’s why I think it stayed under the radar.”
. . . .
U.S. immigration courts are not like the federal courts that most people are familiar with. For one thing, they are housed within the executive branch — specifically, the U.S. Justice Department’s Executive Office for Immigration Review (EOIR).
In addition, immigration cases play out differently than regular court cases where litigants often feel pressure to avoid trial.
“One of the problems with the immigration system, as it currently is — we don’t have plea agreements or stipulations that handle a lot of these cases like you do in a criminal court setting where the parties meet and come up with a mutual compromise and a settlement,” Marks explained. “So every case goes to trial.”
A recent TRAC report concluded that even if the administration of President Joe Biden halted immigration enforcement entirely, “it would still take more than Biden’s entire first term in office — assuming pre-pandemic case completion rates — for the cases now in the active backlog to be completed.”
. . . .
“Our organization has long advocated that the immigration court system be taken out of the Department of Justice, and restructured, like the Article 1 [federal] tax courts,” Marks said.
Aaron Hall, an immigration lawyer in Denver, Colorado, said the immigration court system is currently subject to the whims of whichever party controls the executive branch. But he added that making the courts independent is not enough.
“We still have 1.3 million people in the system,” he said. “There’s no way to both respect due process and push all these cases through in any kind of timely manner. The resolution needs to be immigration reform.
“Having an independent immigration court system is better than having [the courts] in the Department of Justice, but what really needs to change is our [immigration] law,” Hall added.
While the Biden White House has criticized Trump’s handling of immigration cases, the new administration has yet to announce concrete measures to reform the immigration court system or take a position on calls to make it independent from the Justice Department.
***********************
Read the complete article at the link.
Those of us who have served in the Immigration Courts are used to a struggling system unnecessarily in crisis because of a combination of inept bureaucratic management (duh, you can’t treat a court system like an agency, particularly one somewhat resembling the “Legacy INS”) and counterproductive, often ignorant, sometimes malicious, political interference from “Downtown.”
But, the prospect for improvements are bleak, with nobody currently at the “Main DOJ” or at “EOIR Headquarters” who is qualified to lead the way toward rebuilding EOIR so that “teamwork, innovation, and best practices would create a functioning court system that would guarantee fairness and due process for all.” Doesn’t sound like “rocket science” to me.
Let’s be clear about one thing.Not every asylum case needs to go to “full hearing” in a properly staffed Immigration Court system with expert judges trained in asylum law, positive precedents setting forth generous reasonable criteria for granting asylum, and a qualified BIA willing to hold accountable those unqualified Immigration Judges who have established and maintained illegal and disgraceful “Asylum Free Zones” in Immigration Courts throughout America!
Almost 100% of the “asylum precedents” issued by the AG and BIA in the last four years, and the vast bulk of those issued after 2001, tell Immigration Judges how to, and encourage them to, deny asylum, often based on specious reasoning or in conflict with earlier, more generous court and administrative precedents, not to mention the letter and spirit of the U.N. Convention and sometimes the language of the statute and the regulations.
And, due process for asylum seekers and other migrants is mocked in Immigration Court on a daily basis, even as their courageous, often pro bono counsel, are systemically abused! Is this what Judge Garland REALLY stands for? If not, why is he letting it happen?
With competent counsel representing asylum seekers and documenting their cases, and thoughtful well-trained ICE Assistant Chief Counsel with senses of justice, many positive asylum cases can be well-documented, “pre-tried” by the parties, completed, and granted in Immigration Court in a one-hour time slot or less. Indeed, before Sessions and Barr intentionally, senselessly, and maliciously destroyed what was left of justice for asylum seekers in Immigration Court, so called “A-R-C-G- domestic violence cases,” Kasinga FGM cases, family-based asylum cases, Ethiopian and Eritrean political persecution cases, evangelical Christian cases, and LGBTQ+ cases were all staples of my “short docket” — usually conducted every other Friday, at the Arlington Immigration Court. In those days, the parties worked together to get clear grants of relief that were “buried in the backlog” advanced for short hearings, with my active encouragement.
Another largely unexplored alternative is to give Immigration Judges authority to return certainly prima facile grantable asylum cases to a revived and functioning Asylum Office for completion. There are lots of ways that a different group of qualified, well-trained, practical Immigration Judges, and a BIA with Appellate Judges drawn from the ranks of “practical scholars” who are experts in asylum and due process working with (not “under”) professional judicial administrators, could get this system functioning and force those judges who are members of the “Asylum Denial Society” to shape up or ship out. That would keep Immigration Courts from building future unmanageable backlogs by focusing docket time on those cases with real issues needing full hearings. And, nobody’s due process rights would be trampled in the process by mindless “haste makes waste deny everything” enforcement gimmicks such as those the Trump regime constantly tried to impose.
Real court systems are about justice, not “deterrence” or “sending messages,” or even “carrying out Administration policies,” although there shouldn’t be much of a conflict with the latter if the Biden Administration actually lived up to its promises to asylum seekers and other migrants (something it hasn’t shown any inclination to honor, to date). The Immigration Courts, much like Article III Courts, need better judges, not necessarily more of them! Unlike the Article IIIs, which are a long term project, Judge Garland could engineer a solution for the Immigration Courts that would show drastic improvements before the end of this year and get better every year thereafter!
But, with the current gang at DOJ and Falls Church, (remarkably still riddled with Trump holdover bureaucrats and anti-asylum “appellate judges” churning out negative precedents) it’s “mission impossible.” Not a professional judicial administrator or qualified appellate judge among them!
There are folks who could institute the bold, yet obvious, steps necessary to clean up the backlog in relatively short order without stomping on individual rights; come up with merit-based judicial hiring criteria; issue precedents that would advance, not retard, due process for asylum seekers; institutionalize best (rather than worst) practices; “kick tail” until some working basic modern technology (like e-filing) is in place; learn from the private bar’s in-court experiences; put some professional judicial training in place; and return docket control and administration to local courts, where even a minimally competent judicial administrator (in other words, NOT an agency bureaucrat or DOJ politico) would know it belongs.
Now is the time to toss the deadwood and get this system back on track — before the next wave of asylum cases hit the mind-boggling dysfunction in today’s Immigration Courts. How does anyone think that throwing 100 additional Immigration Judges into this disaster zone (the Administration’s budget proposal) will solve the systemic mess and the institutionalized failure to provide anything resembling justice?
Unfortunately, the folks who could do the job are either sitting judges in the Immigration Courts or in the private/NGO sector. And, despite warnings and pleas from those of us who actually understand the system, what’s wrong with it, and how it might be fixed, Judge Garland appears uninterested in engaging in the dialogue or making the obvious personnel moves necessary to build a functioning, due-process-oriented, expert court system. So right now, the chances of avoiding further disaster look pretty grim.
Wonder what the Judge’s“emergency plans” are for when the tsunami finally hits 10th & PA, NW, in D.C.? Like most past AGs not named Jeff “Gonzo Apocalypto” Sessions, Garland might trivialize the importance of immigration and EOIR in his own mind. Maybe that’s because so few immigration cases came before the D.C. Circuit, and the ones that did involved regulations, statutes, and policy issues, usually not “individual removal cases” where human lives were at stake in an immediate context.
Perhaps it’s because EOIR is “across the river” in Falls Church, out of sight, out of mind. Maybe it’s because the unending damage that a dysfunctional and unfair EOIR inflicts on men, women, children, and their lawyers, happens across the U.S., out the Judge’s presence or consciousness. Occasionally, the Post and other national media pick it up. But the human trauma, cruelty, unfairness, and real life stories of EOIR’s disreputable conduct go largely untold and unnoticed. Even the victims and their loved ones are often too deep in the throes of these officially-sanctioned and unnecessarily-harsh injustices to worry about complaining or seeking redress.
I can, however, predict to Judge Garland that if he continues on his current tone-deaf, inept course, both his tenure as Attorney General and his legacy will forever be identified with lousy, inhumane, dysfunctional immigration policies and his inexcusable failure to fix EOIR, or even make a good faith attempt at it!
Meanwhile, government watchdog groups expressed concerns over two people whose initial conversion requests had since been approved.
One such conversion was that of Carl Risch, whose October conversion request to be the deputy director, the No. 2 job, at the Executive Office for Immigration Review within the Department of Justice (a civil service job), was approved in December. Risch had been an assistant secretary for consular affairs at the State Department, a political job. His new job came with a $10,000 raise.
“It’s a red flag when there are multiple people being converted to jobs at a single entity. It really raises an even larger concern,” Stier, of the Partnership for Public Service, said. “The process is supposed to be that a political appointee in no way has a leg up on the competition for a career job, but when you see multiple go to the same agency, you really have to wonder how it can be possible that the best qualified individuals are not once, but multiple times, people who are political appointees.”
Risch did not respond to multiple requests for comment. EOIR spokeswoman Kathryn Mattingly said Risch went through the standard pre-hiring review process with the OPM and that the agency had approved his new position.
. . . .
**************
Read the full article at the link.
So, the folks who saved due process and stood up for the Constitution and racial justice while Judge Garland was enjoying his cushy ivory tower job at the D.C. Circuit over the past four years remain on the outside, twisting in the wind ⚰️ while their clients and colleagues suffer daily abuse in “Garland’s Star Chambers!” Nice touch!
Meanwhile, Garland hands out the big bucks and a hideout for a notoriously unqualified Trump/Miller political hack imported from the DOS. What does Risch know about immigrant justice or court management? Nothing? Oh, but why is that a problem at EOIR?
He occupies what is supposed to be a key senior management position in America’s most dysfunctional “court system” — running a simply astounding 1.3 million (known) case, largely self-created backlog, grinding out sloppy, unprofessional, biased opinions regularly rejected by even conservative Courts of Appeals, setting horrible anti-immigrant precedents and endangering the lives, health, and safety of those who are caught up in EOIR’s continuing White Nationalist cesspool of cruelty, mismanagement, and gross incompetence?
Judge Garland: “Go faster Carl and David (Garland BIA Chair Wetmore), see how much it takes to make this worthless respondent scream! Remember what your mentor Stephen Miller taught you about the lives and rights of ‘the other.’ Why do you think I’m paying you the ‘big bucks’ and letting you ‘burrow in’ if not to punish and deter those who dare seek due process and humane treatment in MY wholly-owned Star Chambers! I couldn’t have done this at the DC Circuit, but here there are NO RULES, except those we make up for our own benefit, and I aim to keep it that way!”
Is it any wonder that immigrant justice and racial justice remain in free-fall under Biden and Garland?
Let’s lay it on the line! By now, Garland should have cancelled all the Trump-era precedents (“day 1 stuff”), cleaned house at EOIR HQ, and transferred the entire BIA to somewhere where they can inflict no more damage on the American legal system!
That would also have sent a powerful“signal” to the many Immigration Judges who have established “asylum free zones” in Immigration Courts throughout the U.S. over the past two Administrations that there will be a return of due process and fundamental fairness for asylum seekers and other immigrants at EOIR.
Judges can get with the program, start granting asylum and other protection as the law requires, thereby reducing backlogs the “old fashioned way” — consistent with due process and fundamental fairness. Or, they can ship out and sign up with Stephen Miller’s “Aryian Nation Legal Team” — where it appears that many of them would be more at home.
Garland should have brought in folks already on the payroll like Judges Dana Marks, Noel Brennan, & Amiena Khan, all experts in due process, judicial management, immigration, and human rights laws, all of whom have demonstrated true leadership, consistent courage, and independence throughout their distinguished careers, on at least a temporary basis to start restoring justice, rationality, and order in the Immigration Courts.
They would already have identified qualified sitting judges who know how to grant asylum to serve as Acting Appellate Judges at the BIA to start turning things around by enforcing due process and issuing precedents that advance, rather than retard, due process, fundamental, fairness, and judicial efficiency.
Meanwhile, they would be developing legitimate merit selection criteria to recruit and hire as judges practical experts who will fairly and efficiently apply due process and fundamental fairness to all asylum seekers and other respondents, regardless of race, color, or creed. These criteria could be used to recruit andhire a diverse progressive group of permanent Appellate Judges and Immigration Judges, to determine which “probationary IJs” should be retained, and eventually to re-compete all existing IJ positions to insure a real, diverse, independent, due-process focused, Immigration Judiciary comprised of the “best and brightest” American law has to offer!
Greg Chen (AILA) and Professor Peter Moskowitz (Cardozo Law) should be on the EOIR payroll implementing their very achievable program for drastically slashing the unnecessary backlog without stomping on anyone’s rights.
Garland should already have hired Professor Michele Pistone(Villanova Law, VIISTA) to develop quality, due process oriented training programs for everyone at EOIR.
Instead, Garland is bankrolling the current crew of proven incompetents, holdovers, hangers on, and Trump/Miller White Nationalists. In other words, he’s wasting our taxpayer money, destroying the lives and futures of the most vulnerable (and often most deserving) among us, undermining racial and social justice in America, and abusing and endangering the health and safety of members of the NDPA trying to bring some semblance of the rule of law and human decency into our disgustingly dysfunctional Immigration Courts.
Could it get any worse? How?
Think about this! Neo-Nazi Stephen Miller and his fellow White Nationalists apparently were so impressed with the effective legal work done by courageous immigration/human rights/due process advocates in blocking many parts of his racist authoritarian agenda — basically the New Due Process Army (“NDPA”) and its “Senior Fighting Division” The Round Table of Former Immigration Judges — that they are forming their very own neo-Nazi legal advocacy group to help GOP AGs stymie any attempt by the Biden Administration to promote racial justice, social justice, and immigrant justice.
Given the rather incompetent (not to mention ethically questionable) performance of many DOJ attorneysduring the Trump regime, Garland is going to need all the help he can get to fend off Miller and the GOP. Rather than enlisting members of the NDPA on his team, letting them solve problems, and actively soliciting their support and alliance on litigation, he is turning them into highly motivated opponents!
How dumb and counterproductive is that! Turn your would-be friends into enemies? Sounds like something only a tone-deaf Dem politico could pull off!
I’m not a politico. But, I do understand the necessity in politics, as in almost any field, of being able to distinguish your friends from your enemies. Perhaps, Judge Garland has spent so much time in the ivory tower that he has forgotten how to play the game out here in the real world.
I’ve been hanging around the Washington legal scene for almost 50 years now. In that time, I might have witnessed a more inept start by an Attorney General of either party. But, really, I can’t remember when!
🇺🇸⚖️🗽Due Process Forever! If the NDPA must take the fight to end ☠️⚰️ deadly “Clown Courts” 🤡 to Judge Garland, so be it!
“Oh no! Is Judge Garland really going to leave me in this position for the next four years?”
COURTSIDE EXCLUSIVE! — A FIRST, DISTURBING LOOK INSIDE “JUDGE GARLAND’S FAILED EOIR” –SOURCES CLAIM JUDGE’S APPROACH TO DUE PROCESS @ EOIR TIMID, INEFFECTIVE 🤮☠️ — HEARD IT THROUGH THE GRAPEVINE 🍇 – Judge Apparently Dissing Calls By Experts, Advocates For Bold, Common Sense Actions To Restore Due Process, & Promote Judicial Independence @ EOIR — Appears Ready To Allow Miller‘s White Nationalist “Plants,” Go Along To Get Along Judges, To Continue Mocking Due Process @ Dysfunctional Courts – Will Ex-Federal Judge Become Latest In Line Of Failed Dem AGs To Allow Institutionalized Racism, Misogyny, Anti-Asylum Attitudes, Mistreatment Of Migrants, & Administrative Chaos To Flourish In America’s Worst “Courts?”
By Paul Wickham Schmidt
Courtside Exclusive
April 9, 2021
Although the information is unverified, and the sources anonymous, Courtside has pieced together an emerging disturbing picture of Judge Garland’s “master plan” to make only cosmetic changes and allow the continued mistreatment of asylum seekers and unprofessional performance of many so-called “judges” in his Immigration Courts, generally known as America’s worst and most dysfunctional tribunals where life threatening institutionalized White Nationalism, sloppy work product, and lack of human rights expertise have become the order of the day.
As we know, DOJ quickly reassigned the former EOIR Director, James McHenry, notorious for “leading” the courts into total failure in pursuit of a White Nationalist political agenda. Apparently, the head of Administration and the “IT honcho” were also forced out at “The Tower.” Presumably, this has to do with EOIR’s remarkable two-decade failure to implement anything approaching a functional nationwide e-filing system.
That’s the “good news.” But, reportedly Judge Garland has little intention of removing the BIA Chairman or the Deputy Director. Sources say that unqualified (never served as a judge) Chief Immigration Judge Tracy Short, who was sent over from DHS Enforcement by the Trump folks, could be on thin ice. But, some in the know point out that he has the least authority to influence anything because he doesn’t actually adjudicate cases and must get approval from “on high” for any further policy changes.
The Deputy Director, Carl C. Risch, whom I’ve reported on before, was a Trump political appointee who “burrowed in” right at the end. According to sources Risch, a “bureaucratic refugee” from the State Department (the only kind of “refugee” recognized by the Trump regime) was mostly interested in finding a “soft landing on the public dole,” and not many people have paid attention to him.
The BIA Chair, David Wetmore, was a confidante of neo-Nazi White Nationalist Stephen Miller at the White House before he became an advisor to the Deputy A.G. and then the Chair. Reportedly, his appointment was driven by Miller and other senior Trump people.
Potentially, in a competent system, the BIA Chair (Chief Appellate Judge) would be one of the most powerful and influential Federal Judges in America, short of the Supremes. Wetmore has supposedly politicized everything. Some say that with his “probationary period” expiring next month, he’s just trying to “hang on.”
DOJ leadership, therefore, could and certainly should remove him in his probationary period with no repercussions. However, Dem incompetence at EOIR and elsewhere in DOJ is legendary when it comes to making such bold personnel moves that, by contrast, are the “bread and butter” of the process by which GOP Administrations seize control of the bureaucracy for their political aims. Dem Administrations all to often appear more than happy to leave GOP “plants, burrowers, and holdovers” in key positions while leaving human rights experts and their own supporters “out in the cold.”
There are also rumors that DOJ has prepared a “100-page plan” for EOIR. That, in of itself, is both interesting and disturbing in light of the glaring absence of any known immigration/human rights expert with intimate knowledge of the dysfunction at the Immigration Courts and how to fix it at DOJ Headquarters downtown. As I’ve mentioned before, the few “DOJ insiders” qualified to lead such a project are some field Immigration Judges, most associated with the NAIJ.
Reportedly, “the plan” has some “good stuff” including free counsel for unaccompanied children. But it doesn’t call for what’s really needed — independent courts!
Nor is it apparent that the Garland team intends to treat the Immigration Courts as “real courts” and to appoint the qualified, diverse, expert judiciary necessary to end institutionalized racism and “Dred Scottification” in the American justice system.
This is likely to leave many of those talented and dedicated lawyers who led the defense against the degradation and dehumanization of women and people of color in the Immigration Courts over the past four years fuming! I’ve said it before, it’s a strange way for a supposedly progressive Administration to treat those who should be their staunchest allies with the potential to solve problems others can’t!
Judge Garland appears determined to repeat the deadly mistakes of past Dem Administrations by leaving the best, most powerful, and most achievable opportunity for reforming the Federal Judiciary on the table yet again. He will also neuter and discredit his plans for equal justice and racial justice before even getting them out of the box.
Some report that advocacy groups might temper their calls for judicial independence and a better qualified judiciary at EOIR to avoid criticizing the new Administration. Sadly, that would also be a huge mistake, repeating past catastrophic failures!
I’ve seldom heard or witnessed a bigger “crock” than “revolution by evolution.” Revolution comes from kicking tail, taking names, and bold aggressive due process enhancing actions. For Pete’s sake, Miller and Sessions understood the power of decisive action! Are they really that much smarter and more motivated than the Dems? Sadly, it appears so!
Last time, I watched from the “inside” as the Obama Administration left the immigration advocacy/human rights community “standing at the station” while the train pulled out, with mostly the wrong engineers at the controls. It was painful. It might be even more painful watching it happen again, despite all the warnings from those of us in the NDPA!
If an independent EOIR is ever going to happen it must be now! By the end of this year, it likely will be too late. The cost in human lives, frustration, and squandered potential for a better America and a better world will be incalculable.
Unhappily, those of us who had hoped to litigate and criticize less and help more appear destined for another four years of fighting an intransigent and tone-deaf Administration from the outside.
My three recommendations:
1) Those working on Article I better “get cracking,” because Judge Garland doesn’t appear to be interested in meaningful fixes at EOIR.
2) The human rights community had better reload and redeploy the “litigation artillery.” Because it looks to me like the only way of getting the Garland DOJ to address the festering problems undermining justice in America will be by beating them in court, over and over, until their “star chambers” finally collapse in total chaos.
3) Keep documenting the “lack of justice at Justice” — make sure that Judge Garland and his team “own” their failure to take seriously immigrant justice in the Immigration Courts and their disrespect for human rights experts who should be running and staffing our Immigration Courts!
Sure, it’s all anonymous and unverifiable. But, it sounds eerily similar to the arrogant incompetence with which the Obama Administration failed to institute achievable reforms in the Immigration Court system. So, I give it credence.
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever!
“Oh, goody! I hear Judge Garland is going to keep me at EOIR! I can’t wait to tell my buddy Gauleiter Miller that the slaughter of innocents will continue!” Image: Hernan Fednan, Creative Commons License
Is this Judge Merrick Garland’s Vision Of Justice For Refugee Women @ EOIR? If not, what’s he doing about it? Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsJamie Gorelick American Lawyer & Public Servant PHOTO: Creative CommonsLayli Miller-Muro Founder & Executive Director, Tahirih Justice Center PHOTO: Creative Commons
Jamie Gorelick is a partner at Wilmer Hale. Layli Miller-Muro is founder and CEO of the Tahirih Justice Center, a nonprofit that serves immigrant survivors of gender-based violence. Both were involved in Fauziya Kassindja’s asylum case in 1996: Gorelick was deputy attorney general during the Clinton administration and Miller-Muro was Kassindja’s student legal counsel, representing her in immigration court and at the Board of Immigration Appeals.
With the issue of migration in the news again, a glaring omission in U.S. asylum law should get more attention: The statute does not name gender as a possible ground for protection.
To be granted asylum in the United States, an applicant must be facing persecution by their government or someone that government cannot or will not control. The applicant must show that the persecution is on account of race, religion, nationality, political opinion or membership in “a particular social group.” Persecution on account of gender is not included.
This makes sense when considering that the global treaty that obliges state parties to protect refugees was adopted 70 years ago, in 1951, when the legal rights of women were barely recognized. The treaty — called the Refugee Convention — says that countries have an obligation to protect those who have no choice but to flee or risk death in the face of injustice.
It is unsurprising that the needs of women facing persecution were not considered in 1951. It is also not surprising — though it is disappointing — that Congress wrote this outdated framework into the Refugee Act of 1980.
In the mid-1990s, some light was shined on this problem. Fauziya Kassindja, a 17-year-old from Togo, sought protection both from forced polygamous marriage to a much older man and from female genital mutilation. She was granted asylum after proving that she was a member of a “particular social group” — and thus covered by the Refugee Act. We were both involved in this case, which helped to crack open the door for women to argue that gender-based asylum claims should be granted under the “particular social group” category in the statute.
But progress for women has been slow and painful under a statute that does not explicitly recognize gender-based persecution. It took 14 years for the United States to grant asylum to a Guatemalan woman, Rodi Alvarado, who endured unspeakable brutalization by her husband, a former soldier. Regulations proffered by then-Attorney General Janet Reno in 2000 to protect women under the social-group category were never finalized, leaving women in the lurch. So much variance exists in the likelihood of success from court to court that filing a claim can feel like playing Russian roulette.
. . . .
This situation has been made much worse in recent years. Under Attorney General Jeff Sessions, decades of progress were nearly wiped out by the stroke of a pen. Because the highest immigration court is part of the Justice Department, he was able to single-handedly reverse key legal precedents favorable to women’s claims and issue guidance to judges limiting gender-based asylum. As a result of these changes, the safety of many immigrant women hangs by a thread. The Refugee Act urgently needs to be changed to clearly protect women who would otherwise meet the stringent requirements for asylum.
. . . .
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Read the full op-ed at the link.
The Rest of the Story
I wrote the decision granting asylum in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996). Jamie Gorelick was the Deputy Attorney General during part of my tenure (1995-2001) as Chair of the BIA. Layli Miller-Muro worked for me as a BIA Attorney-Advisor for a time.
Following Kasinga, some of my colleagues and I put our careers on the line to vindicate the statutory, constitutional, and human rights of refugee women who suffered egregious persecution in the form of domestic violence. One of those cases was Rodi Alvarado (a/k/a “Ms. R-A-“), where we dissented from our majority colleagues’ misguided denial of protection to her following grotesque, clearly gender-based persecution. Matter of R-A-, 22 I&N Dec. 906, 928 (BIA 1999) (Guendelsberger,Board Member, dissenting with Schmidt, Chair, Villageliu, Rosenberg, and Moscato, Board Members). Alvarado had properly been granted asylum by an Immigration Judge, building on Kasinga, before being unjustly stripped of protection by the majority of our colleagues.
The incorrect decision in R-A- was vacated by Attorney General Reno. Finally, after a 14-year struggle, Ms. Alvarado was granted asylum in an unpublished, unappealed decision based largely on the rationale of the dissenters. In the meantime, the “gang of four” dissenters (minus Moscato) had been exiled from the BIA by Attorney General John Ashcroft, assisted by his sidekick, Kris Kobach (the infamous “Ashcroft Purge” @ the BIA).
In 2014, in Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the BIA finally recognized domestic violence based on gender as a form of persecution. They did so without acknowledging the pioneering work of the R-A- dissenters 15 years earlier. By this time, domestic violence as a basis for asylum had become so well established that it wasn’t even contested by the DHS (although, curiously, the case was remanded by the BIA for additional findings on issues that were beyond reasonable dispute)!
In the meantime, at the Arlington Immigration Court, my colleagues and I had consistently granted domestic violence asylum cases based on a DHS policy position known as the “Martin Memo,” after former INS General Counsel and later DHS Deputy General Counsel Professor David Martin (who, incidentally, argued the Kasinga case before the BIA in 1996 — famous gender-based asylum expert Professor Karen Musalo argued for Kasinga). Most of those grants were unappealed by DHS. Indeed, many were so compelling and well documented that DHS joined Respondents’ counsel in moving for asylum grants following brief testimony. These cases actually became staples on my “short docket,” promoting efficiency, fairness, and becoming one of the few “working parts” of the Immigration Courts.
Tahirih Justice Center, founded by, Layli Miller-Muro, was counsel in some of these cases and served as an essential resource and inspiration for attorneys preparing domestic violence cases. It also functioned as a training center for some of the “new all-stars” of the New Due Process Army. For a time, the progress in recognizing, documenting, and vindicating the rights and humanity of female asylum seekers, at least in the Arlington Immigration Court, was one of the few shining examples of the courts, DHS, and the private/NGO bar working cooperatively to improve the quality and efficiency of justice in Immigration Court. It should have been a model for all other courts!
Sadly, in 2018, Attorney General Jeff “Gonzo Apocalypto” Sessions, unilaterally intervened and undid two decades of progress for women refugees of color with his grossly incorrect and disingenuous decision in Matter of A-B-, 27 I&N Dec. 316 (BIA 2018), overruling Matter of A-R-C-G- on completely specious grounds while intentionally misconstruing the facts of record. Significantly, Sessions’s intervention was over the objection of DHS, which had expressed continuing agreement with the A-R-C-G- framework for deciding domestic violence cases.
“Hanging by a thread,” as stated by the op-ed, unfortunately vastly understates the war on the legal rights and humanity of asylum-seeking women, particularly targeting women at color, being carried out at EOIR today. This effort is led by a BIA that has long since lost its way, basically “weaponizing” the legal distortions and vicious, openly misogynist dicta set forth by Sessions in Matter of A-B- to dehumanize, degrade, and deport vulnerable refugee women.
In numerous cases, the BIA actually intervenes at ICE’s request to reverse proper grants by courageous and scholarly Immigration Judges below. It’s all about churning out final orders of removal as a deterrent –a vile, disgusting, perverted “philosophy” advanced by Sessions, Barr, and Whitaker, and not yet effectively rejected by Judge Garland.
Judge Merrick B. Garland Official White House Photo Public Realm
Judge Garland is in the job because he is not only an experienced DOJ senior executive, but a long-serving Federal Judge who was admired for his sense of justice. It shouldn’t take an army of “spear-carriers” and subordinates for a true leader of Judge Garland’s experience to seize control of the situation and start getting the “ship of justice” sailing in the right direction. Judge Garland’s political and bureaucratic travails are of no moment to, and pale in comparison with, the additional, unconscionable abuse and “Dred Scottification” being heaped on refugee women and their courageous representatives by his dysfunctional and unconstitutional “star chamber courts.”
“Refugee women get ‘special treatment’ in accordance with the ‘traditional values’ applied to their cases in Judge Garland’s Immigration Courts!”
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-004160Woman 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
Please, Pick Up The Phone & Your Pen, Judge Garland!
Not rocket science, Judge Garland! All it takes is six calls and a signature to start ending misogyny at EOIR and achieving racial justice in the America.
First three calls: Call Judge Dana Marks (SF), Judge Noel Brennan (NYC), Judge Amiena Khan (Newark) and tell them that they are detailed to the positions of Acting EOIR Director, Acting BIA Chair, and Acting Chief Immigration Judge, respectively. (The first position is vacant and the other two positions are filled by Senior Executives subject to transfer at the AG’s discretion. The current Acting Director already has an SES position to which she could return, or she could be re-installed as the
EOIR General Counsel, a job for which she is well-qualified.)
Fourth call: Call the the head of of the Justice Management Division (JMD). Ask her/him to find suitable DOJ placements for the two current incumbents mentioned above and all current members of the BIA (all of whom are either SES or “Management Officials” subject to transfer at the AG’s discretion) in other DOJ positions at the same pay level where they can do no further damage to our justice system. Ask him/her to arrange for the temporary appointment of former DOJ employees Jamie Gorelick and Layli Miller-Muro as Acting Appellate Judges at the BIA.
Calls five and six: Call Jamie Gorelick and Layli Miller-Muro. Thank them, tell them you agree with their Post op-ed, and ask (or beg) them to come to DOJ on a temporary basis to help Judges Marks, Brennan, and Khan solve the current problems with asylum adjudications and take the necessary actions to get EOIR functioning as a legitimate, independent, due-process-oriented court system. In other words, turn their cogent op-ed into a “real life action plan” for restoring due process, humanity, and common sense to the Immigration Courts, with a focus on the now totally unprofessional, wrong-headed mis-adjudication of asylum cases.
Finally, sign this order:
All precedent decisions issued to EOIR by former Attorneys General Sessions and Barr, and former Acting Attorneys General Whitaker and Wilkinson, and all their pending actions certifying cases to themselves are hereby vacated. All cases shall be returned to the Board of Immigration Appeals (“BIA”) for reconsideration. In the reconsideration process, the BIA shall, among other things, honor the letter and spirit of these binding precedents:
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)
Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987)
Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996)
In the reconsideration process the BIA shall also be guided by the principle of “through teamwork, innovation, and best practices, become the world’s best tribunals, guaranteeing fairness and due process for all.”
See, it’s not that complicated. By the end of this year, women will get the protection to which they legally are entitled from the Immigration Courts. We all will see dramatic changes that will lead the way toward “equal justice for all’” in America and become a blueprint for the Immigration Courts to fulfill the above-stated principle.
It would also be a far better legacy for Judge Garland to be viewed as the “father of the fair, independent, expert Immigration Courts,” than to be remembered as running the most dysfunctional, unfair, and misogynistic court system in America, his current path. And, as an extra added bonus, Judge Garland, you will have a great start on building a premier source of “battle tested,” due-process-oriented, progressive jurists for future Article III appointments!
It’s a “win-win-win” that you no longer can afford to ignore, Your Honor!
Merrick Garland was recently confirmed as attorney general, bringing back a much-needed sense of impartiality and integrity to the Justice Department and the immigration court system it oversees. In this sense, his appointment is critical because, less than two months into his presidency, Joe Biden is already confronting the reality that meaningful immigration policies don’t always match up with wishful campaign promises. As thousands of migrants, especially unaccompanied minors, continue to seek safety and opportunity in the United States; as changes to interior enforcement and immigration prosecutions are slow to implement; and as advocates apprehensively watch detention facilities expand and COVID-related border closures continue, immigration remains the most divisive of all political conversations.
But rather than be overwhelmed by the challenge, perhaps there is another place to start, one that has only been alluded to in Biden’s plans and never taken up by Congress: If we want to re-build a better, stronger immigration system, we need to start with immigration courts. In a Just Security piece published in November, Gregory Chen eloquently laid out the devastating harm caused by the Trump administration’s politicization of the immigration judiciary, pointedly describing the courts as “strained to the breaking point under a massive backlog of cases and a systemic inability to render consistent, fair decisions.”
Courts are the backstop of every legal system. Their most basic function is to ensure that applications of the law are fair, not arbitrary and capricious. In the U.S. immigration system, however, most of the oversight has fallen on administrative courts housed within the Department of Justice. As Chen argues, the courts “operate under the jurisdiction of a prosecutorial agency, the Department of Justice, whose aims and political interests often conflict with the fundamental mission of delivering impartial and fair decisions.” Further exacerbating the tension, beginning in 1996 Congress expanded the executive branch’s already far-reaching power on immigration by starting a 30-year trend of limiting the federal courts’ jurisdiction over immigration issues; efforts that were only reinforced by the 2002 Homeland Security Act and 2005 REAL ID Act. The recently introduced, White House-backed, U.S. Citizenship Act of 2021 only slightly restores judicial oversight, allowing district courts to review allegations of violations of certain portions of the Act. For the foreseeable future, immigration courts remain under the direction of the Executive Office for Immigration Review (EOIR), a small and chronically under-funded sub-agency of the Justice Department, operating out of an office building in Falls Church, Virginia, removed from DOJ leadership in Washington, D.C.
While they by no means caused the issues that plague the EOIR today, the Trump administration’s policies put the proverbial final nail in the coffin of a quasi-functioning system, decimating the daily functions of immigration courts and showing how they can be used as political tools. The overwhelming backlog of cases –nearly 1.3 million at last count across all courts– exacerbated by the enforcement-first agenda, means that immigration judges have enormous caseloads with few support staff to help them manage the work. In addition, policies by the Trump administration removed judicial discretion from judges, prevented them from using simple control tools to manage their dockets, tied performance reviews to how many cases they closed out within a year while making it harder to avoid entering deportation orders, and created new administrative law to further restrict benefits a judge can grant. When the immigration bench pushed back, leadership dismantled the union that represented them. Hiring and rewards practices have politicized the bench even more. As Chen noted in his piece, the Trump administration “stacked the courts with appointees who are biased toward enforcement, have histories of poor judicial conduct, hold anti-immigrant views, or are affiliated with organizations espousing such views.”
This is not the hallmark of a functional legal system, and its ripple effects undermine our immigration system as a whole.
. . . .
Otherwise, we will prolong a situation that would be comical were the implications not so devastating. Returning to the individuals stranded in Mexico due to the MPP, for example – as of the time of this writing, they are being registered into a database and given COVID tests by various international organizations. Once cleared to enter the United States, they will fill out a form, by hand, which is handed to the Customs and Border Protection official. The CBP officer, overwhelmed and under-resourced as they are at the border, will then transmit this paper form to the immigration court officials, who will enter it into their systems and change the case to the appropriate court. In New York, these courts do not even have sufficient staff to assign one clerk, who also doubles as an administrative assistant, to each judge. As a result, calls to the court frequently go unanswered and are rarely returned. Furthermore, increasingly, understaffing has led to misplaced evidence submissions for pending cases. The responsibility to ensure that all of these obstacles are overcome will lie on the individual who just, finally, entered the United States.
An independent immigration judiciary, with its own resources and free from political oversight, is the only long-lasting remedy to this dysfunction. In the meantime, the agency, much like the DOJ it depends on, is in desperate need of thoughtful, measured leadership that values due process and impartiality and supports existing staff as it continues to navigate the complex problems posed by our immigration laws. There must be trained, dedicated staff ensuring efficient management of the court’s dockets and administrative systems so that the individuals whose cases are going through the courts understand what is required of them. Only then will the immigration system reflect American notions of justice, and only then can we begin to rebuild a strong, sustainable immigration system that meets our goals for foreign policy, national security, and domestic prosperity.
******************
Read Camille’s full article at the link.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Not rocket science! Just following the due process clause of the Constitution; implementing asylum laws in the fair, generous, and practical way they were intended; replacing today’s failed EOIR administrators, the entire BIA, and many Immigration Judges responsible for “asylum free zones” with competent, expert professionals; and treating migrants, regardless of race, color, creed, or gender, as human beings!
If you wonder why Judge Garland is continuing to run “star chambers” masquerading as “courts” @ DOJ, join the club!
“Justice” Star Chamber Style
As cogently described by my friend and fellow panelist at the Hispanic National Bar Association last night, Claudia Cubas, Litigation Director at the CAIR Coalition, in what other “court” system in America are you not entitled to a timely copy of your client’s file to prepare for litigation and file applications (often with artificially truncated “filing dates” to promote “summary denials”)? Making the Immgration Courts functional is neither impossible nor that complicated. All it takes is competent leadership with the guts to “clean house” at EOIR and “kick some tail” at an intransigent, contemptuous, and out of control DHS.
Claudia Cubas Litigation Director CAIR Coalition Photo: berkleycenter.georgetown.edu
So why is Judge Garland investing in the continuing, deadly “Clown Show,”🤡🦹🏿♂️☠️⚰️ rather than getting going on bringing “his” courts into compliance with due process? It’s not even that hard to get the right experts who could do the job in place, at least on a temporary basis.
Judge Merrick B. Garland Official White House Photo Public Realm
If Judge Garland won’t do his job, what can we do to force change and rationality into this totally dysfunctional, stunningly unfair, scofflaw system? Here are some ideas from last night’s panel at the Hispanic National Bar Association (“HNBA”):
Apply for jobs at EOIR (sure, they are hidden away on “USA Jobs,” there is no effort whatsoever on Judge Garland’s part to diversify or recruit real experts, and the selection process is opaque). But, better judges, with actual experience representing migrants (particularly asylum seekers) in court, and some compassion and human understanding along with expertise, are the key to fixing the system. It’s particularly critical for minority attorneys (now a relative rarity in the “Immigration Judiciary”) to apply in overwhelming numbers and get into the system to start forcing change from within (“bore from within,” as Dan Kowalski says). Can’t complain about who’s selected if you don’t apply and compete!
Raise hell with your legislative representatives! As long as Immigration Court reform is #27 on their radar screens, the problem won’t get addressed.
Get involved with educating the public about the ungodly, un-American disaster in the Immigration “Courts” that don’t fit any normal definition of “courts” (except “kangaroo courts”). Join and support advocacy and social service groups; write op-eds; write for blogs; speak at community and church meetings; run for political office!
Sue, sue, sue, sue! Make sure that the systemic mistreatment of migrants and people of color in Judge Garland’s Immigration Courts are front and center in the Article III Courts and that we are making an historical record of where Federal Judges and public officials stand on the most critical racial and social justice issue in America today. Argue the very obvious Constitutional violations present in a system run by prosecutors, where judges can be neither fair nor impartial, and where many lack even minimal competence and qualifications for their “judicial” positions. Take the fight to the broken and dysfunctional DOJ in the only way they understand, by whacking them down in court! Make Judge Garland face and “own” his disgracefully failed, unprofessional “courts” by making it the #1 issue occupying his time. Make how he deals with the Immigration Courts his overriding “legacy” for better or worse!
Remember, GOP politicos like to use immigration as a “prop” to spread their message of racial vilification and dehumanization of the “other” because it “fires up” their White Nationalist base! By contrast, Dem politicos want to make immigration go away and pretend like the mess in the Immigration Courts doesn’t exist, can’t be fixed, isn’t that important (as in lives of migrants and asylum seekers, mainly of color, don’t count), and isn’t killing people! Don’t let either party get away with their respective dishonest, “designed for failure,” approaches!
Humanity and the future of American democracy are at stake here! They might be “Clown Courts” 🤡 but the damage they daily inflict on human lives ☠️⚰️ and values 🤮 is no laughing matter!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! Put an end to deadly “Clown Courts” 🤡 now!
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-004160Woman 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-004160Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Every woman knows what I’m talking about. It’s the presumption that makes it hard, at times, for any woman in any field; that keeps women from speaking up and from being heard when they dare; that crushes young women into silence by indicating, the way harassment on the street does, that this is not their world. It trains us in self-doubt and self-limitation just as it exercises men’s unsupported overconfidence.”
Rebecca Solnit, Men Explain Things to Me
On April 5, the U.S. Court of Appeals for the Ninth Circuit issued a published decision in Rodriguez Tornes v. Garland. The opening sentences of the decision are heartbreaking:
Since the age of five, Petitioner has been told that men will beat her if she does not submit. Her mother demanded that she learn how to do housework, how to accept spousal abuse, and how “to obey everything that [her] husband would say.” She beat Petitioner with various objects almost daily, in part to prepare her for future beatings from her husband.
But along with the darkness there was also hope. The decision’s opening paragraph concludes: “Yet Petitioner came to believe that ‘there should be equality in opinions[] and in worth’ between men and women. She became a teacher.”
Remarkably, over all the years that followed, the Petitioner’s hope survived the most brutal attempts to crush her into silence and submission. As her mother had foreseen, she endured unspeakable and repeated forms of physical and psychological torture, including beatings and rape, at the hands of her husband. Yet she continued to express the belief in her rights as an equal, and was brutally punished each time she did so, in an attempt to destroy the part of her capable of forming such belief. Neither the police nor her own family offered her any possibility of protection.
When she finally succeeded in escaping to the U.S., her abuse continued, merely transferred to the hands of another domestic partner with whom she had three children in this country. In 2017, our government deported both her and her latest abuser. Facing the prospect of continued harm in her native Mexico, her still unbroken hope guided her to the U.S. once again, where she was placed into removal proceedings.
Her hope was briefly rewarded when an Immigration Judge granted the Petitioner asylum, ruling that her persecution was on account of her feminist political opinion. The Immigration Judge alternatively held that asylum was warranted on account of the Petitioner’s membership in the particular social group consisting of “Mexican females,” which formed at least one central reason for her persecution.
It isn’t clear why ICE appealed the IJ’s decision. On appeal, the BIA acknowledged the Petitioner’s honesty and the ongoing, systemic nightmare of violence she endured because of her gender and unbroken belief that she possessed rights. And yet the BIA chose to act like a rubber stamp for the administration it served, and found a way to reverse the IJ’s well-reasoned decision. According to a concurring opinion of the circuit court, the BIA managed this by suggesting that the Petitioner’s brutal suffering was motivated by her “personal relationship” with her abuser. According to the concurrence, the BIA supported this conclusion by relying on the decision of former Attorney General Jeff Sessions in Matter of A-B-.
Of course, asylum applications require an individualized analysis of the facts of the specific case under consideration. Matter of A-B- involved a different asylum seeker from a different country who experienced different facts than this petitioner. So in citing A-B- to reach a conclusion so at odds with the facts of this case, the BIA’s judges were signaling their choice of a specific policy objective over their duty to neutrally apply law to specific facts.
Among the facts the BIA chose to ignore was the opinion of an expert who drew “on more than three decades of research, writing, legal representation, and lawmaking” in support of her conclusion. The expert, Prof. Nancy Lemon of the Univ. of Cal. – Berkeley Law School, explained how all of the weapons at abusers’ disposal are “tied to social belief systems that ‘men are entitled to dominate and control women because the male sex is considered superior.’” Prof. Lemon went into great detail in explaining the political nature of the mistreatment. Of course, it mattered not to the Board.
In discussing this case, an esteemed colleague pointed to a decision that the same court issued more than three decades ago. In 1987, in an opinion authored by Judge John T. Noonan, Jr., a conservative Reagan appointee, the Ninth Circuit concluded that a Salvadoran woman subjected to repeated sexual abuse and other violence by a sergeant in the Salvadoran military had been persecuted on account of her political opinion where the abuser threatened to falsely label her a “subversive if she refused to submit to his abuse.”1 In the words of Judge Noonan, the fact that the persecutor gave the asylum seeker “the choice of being subjected to physical injury and rape or being killed as a subversive does not alter the significance of political opinion…” The decision reversed the conclusion of the BIA that “the evidence attests to mistreatment of an individual, not persecution,” precisely the same finding the Board used more than three decades later in denying Ms. Rodriguez Tornes of her grant of asylum.
In 1993, Justice Samuel Alito, then sitting at the Third Circuit, wrote that “we have little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes.”2 28 years later, the Ninth Circuit cited Justice Alito’s words in Rodriguez Tornes, adding that it had reached the same conclusion in its own unpublished 1996 decision.3 These were obviously not the decisions of liberal judges forwarding a political agenda. To the contrary, these judges were able to transcend political ideology by neutrally applying law to facts; this is what judges do. As a result, the law of asylum has progressed to increasingly provide asylum protection to victims of domestic abuse. Immigration Judges appointed by both Republican and Democratic administrations have followed suit, authoring well-reasoned decisions granting asylum in numerous cases of domestic abuse, including this one.
Yet over the same period of time, the BIA has stubbornly refused to budge from its 1980s position that domestic abuse is simply a personal matter not linked to a political opinion within society. In the words of Jeff Sessions in Matter of A-B-, the vile abuse was simply due to the abuser’s “preexisting personal relationship with the victim.”4
When a mother feels compelled to begin abusing her five year old daughter to prepare her to obey her husband one day, can the inevitable spousal abuse that follows really be dismissed as just a personal matter? And when the record contained Prof. Lemon’s evidence (because expert testimony is evidence) of “a correlation between patriarchal norms that support male dominance and violence against women by intimate partners,” what unsupported overconfidence did the BIA’s judges rely on in explaining that they know better?
The BIA decided this case during the Trump Administration. For those hoping that the change in administration will usher in a change in the Board’s view, it bears noting that neither the Clinton nor Obama administrations brought about a sea change in the Board’s approach to domestic violence claims. Under Clinton, the BIA issued Matter of R-A-,5 a precedent that essentially precluded the granting of asylum to domestic violence victims based on their membership in a particular social group. The decision was vacated by then-Attorney General Janet Reno, who promised more enlightened regulations on the issue that never arrived. Similar regulations were rumored to be in the works under Eric Holder, but again did not materialize. The BIA’s one grudging concession to the political climate of the Obama era, Matter of A-R-C-G-, was later vacated by Jeff Sessions. While the BIA discussed a second decision under Obama expanding on the narrow holding of A-R-C-G-, it too never came to be.
Based on that history, it seems safe to say that without drastic action by Attorney General Merrick Garland, the BIA will continue issuing the same denials for the same reasons as before. For every individual such as Ms. Rodriguez Tornes who is able to succeed on appeal, there are countless more who merely end up as stratistics, deported to face more of the horrendous abuse that drove them here in the first place. The Ninth Circuit recently had to correct the BIA’s determination that attempted gang rape did not constitute persecution,6 and last year, reversed the Board erroneous rejection of a domestic violence victim’s particular social group on the grounds that it contained a few too many words.7 The BIA continues to be composed of the exact same group of judges who issued each of those decisions.
It is the role of the BIA to reach fair decisions by applying the applicable law to the individual facts. Doing so in the domestic violence context would require the Board to finally recognize opposition to systemic male oppression as a political opinion warranting asylum. Instead, for decades the BIA has enforced the offensive, outdated message to women seeking protection from such abuse that “this is not their world.” The time has come to finally put an end to this sad substitute for true administrative appellate review.
Notes:
Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987).
Fatin v. I.N.S., 12 F.3d 1233, 1242 (3rd Cir. 1993).
Moghaddam v. I.N.S., 95 F.3d 1158 (9th Cir. 1996) (unpublished).
Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020).
Copyright 2021, Jeffrey S. Chase. All rights reserved.
Republished by permission.
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Different style, but the same message as I delivered yesterday about the BIA’s institutionalized racist misogyny and the strange tolerance that Attorney General Merrick Garland has exhibited to date for this type of grotesque judicial misconduct.
And, this is on top of the astounding, largely self-inflicted 1.3 million case backlog and total dysfunction generated by the BIA’s failures combined with the “maliciously incompetent” effort by DOJ politicos and EOIR bureaucrats to disguise a “deportation railroad” as “administrative review!” Leaving aside all the legal travesties, the mal-administration and waste of public resources alone would be more than enough to require the immediate replacement of EOIR “upper (mis)management” and the entire BIA with qualified judicial professionals and professional judicial administrators.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Jeffrey and I are hardly the first to expose the charade of “appellate review” at the BIA. Two decades ago, following the “Ashcroft Purge,” administrative scholar and former GOP House Counsel Peter Levinson published his seminal work “The Facade of Quasi-Judicial Independence In Immigration Appellate Adjudications” documenting the mockery of due process and legitimate judicial practices being foisted off on the public by DOJ politicos.
In the two decades since, legislators, DOJ Officials, and Article III Judges have done their utmost to ignore and paper over the glaring constitutional and administrative disasters identified by Peter. Not surprisingly, during that time the BIA and the Immigration Courts have descended into a slimy mass of disastrous bias, injustice, and judicial and administrative incompetence unequaled in American Justice since the heyday of the First Era of Jim Crow.(We are now in the “New Era of Jim Crow.”)
Of course, we need an independent Article I Immigration Court as a matter of the highest national priority. But, it’s not on schedule to happen tomorrow, even though it should! In the interim, Judge Garland could fix lots of the festering problems in this system. I gotta wonder if and when he is going to wake up and pay attention to the “assembly line injustice” being cranked out by “his” Immigration Courts?
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“Nothing to see here, fellas, just the private dynamics of a personal relationship! Tough noogies, baby! You should have been born a man. It’s your own fault! Ha! Mercy and compassion? Those aren’t in any of our precedents, are they?” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons“Expert, what expert? We’re the experts! That is, in misogyny, abuse of asylum seekers of color, and specious legal reasoning. And, Garland is letting us get away with it! Whew, for a moment I thought he might have been a ‘real’ judge, but seems he’s just like us. Think I’ll jump for joy! Four more years of unbridled abuse of the most vulnerable and helpless, and I’ll be eligible to retire! Shooting down female asylum seekers for no good reason is like shooting fish in a barrel, just like Jeffy Gonzo and Billy the Bigot taught us! Wonder how many we can kill this year? Happy hunting! But, let’s stay out of the 9th Circuit. It’s dangerous territory. I hear the 5th Circuit loves misogynists and White Nationalists!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
PANEL: Susan P. Graber, M. Margaret McKeown, and Richard A. Paez, Circuit Judges.
OPINION BY: Judge Graber
CONCURRING OPINION: Judge Paez
COUNSEL: Elaine J. Goldenberg (argued), Munger Tolles & Olson LLP, Washington, D.C.; Sara A. McDermott, Munger Tolles & Olson LLP, Los Angeles, California; Richard Caldarone, Julie Carpenter, and Rachel Sheridan, Tahirih Justice Center, Falls Church, Virginia; for Petitioner.
Timothy Bo Stanton (argued), Trial Attorney; Sabatino F. Leo, Senior Litigation Counsel; Office of Immigration
ROGRIGUEZ TORNES V. GARLAND 5
Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Blaine Bookey, Karen Musalo, Neela Chakravartula, and Anne Peterson, Center for Gender & Refugee Studies, U.C. Hastings College of Law, San Francisco, California, for Amicus Curiae Center for Gender & Refugee Studies.
Betsey Boutelle, DLA Piper LLP (US), San Diego, California; Anthony Todaro, Jeffrey DeGroot, and Lianna Bash, DLA Piper LLP (US), Seattle, Washington; for Amicus Curiae National Immigrant Women’s Advocacy Project.
SUMMARY BY COURT STAFF:
Immigration
The panel granted Maria Rodriguez Tornes’s petition for review of the Board of Immigration Appeals’ decision reversing an immigration judge’s grant of asylum and withholding of removal, and remanded, holding that the evidence compelled the conclusion that Rodriguez established a nexus between her mistreatment in Mexico and her feminist political opinion.
The panel noted that under the Attorney General’s recent decision in Matter of A-B-, 28 I. & N. Dec. 199 (A.G. 2021) (“Matter of A-B- II”), in order to establish the requisite nexus for asylum relief, a protected ground (1) must be a but-for cause of the wrongdoer’s act; and (2) must play more than a minor role—in other words, it cannot be incidental or tangential to another reason for the act. The panel explained that this standard was substantively indistinguishable from this circuit’s precedent. The panel wrote that the fact that an unprotected ground, such as a personal dispute, also constitutes a central reason for persecution does not bar asylum. Rather, if a retributory motive exists alongside a protected motive, an applicant need show only that a protected ground is “one central reason” for his or her persecution.
Observing that this court has held repeatedly that political opinions encompass more than electoral politics or formal
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
ROGRIGUEZ TORNES V. GARLAND 3
political ideology or action, the panel wrote that it had little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes. The panel concluded that Rodriguez’s testimony concerning equality between the sexes, her work habits, and her insistence on autonomy compelled the conclusion that she has a feminist political opinion. The panel also held that the record compelled the conclusion that Rodriguez’s political opinion was at least one central reason for her past persecution. The panel explained that some of the worst acts of violence came immediately after Rodriguez asserted her rights as a woman, and that the fact that some incidents of abuse may also have reflected a dysfunctional relationship was beside the point, as Rodriguez did not need to show that her political opinion—rather than interpersonal dynamics—played the sole or predominant role in her abuse. By demonstrating that her political opinion was “one central reason” for her persecution, the panel concluded that Rodriguez likewise established that her political opinion was “a reason” for her persecution for purposes of withholding of removal.
Because in granting relief under the Convention Against Torture the agency necessarily determined that Rodriguez carried her burden to prove the other elements of her claims for asylum and withholding of removal, the panel concluded that Rodriguez’s petition presented a recognized exception to the ordinary remand rule under I.N.S. v. Ventura, 537 U.S. 12 (2002) (per curiam). The panel explained that because the agency concluded that Rodriguez met the higher burden of establishing that she is likely to be tortured, she necessarily met the lower burdens for asylum and withholding relief of establishing that she has a well-founded fear, or clear probability, of persecution. Similarly, because the Board determined that the Mexican government would acquiesce to
4 ROGRIGUEZ TORNES V. GARLAND
Rodriguez’s torture, the panel concluded that the Board had necessarily decided that the Mexican government would be unwilling or unable to protect Rodriguez from future persecution. The panel also concluded that because the Board determined that it would be unreasonable for Rodriguez to relocate within Mexico to avoid future torture, she likewise could not relocate to avoid future persecution.
The panel held that Rodriguez was thus eligible for asylum and entitled to withholding of removal, and it remanded for the Attorney General to exercise his discretion whether to grant Rodriguez asylum, and if asylum is not granted, to grant withholding of removal.
Concurring, Judge Paez wrote that in addition to ignoring evidence that Rodriguez was targeted on account of her feminist political opinion, the Board also ignored extensive record evidence from a leading authority on domestic violence that directly rejected the Board’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a “personal relationship.”
CONCURRING OPINION:
PAEZ, Circuit Judge, concurring:
I join Judge Graber’s fine opinion in full. I write separately on a point the court’s opinion does not address. In rejecting Ms. Rodriguez Tornes’s political opinion claim, the BIA suggests that the presence of a “personal relationship” motivation for intimate partner violence implies that there were no intersectional or additional bases for the violence Ms. Rodriguez Tornes experienced. The court’s opinion thoroughly documents the record evidence, which the BIA ignored, demonstrating how Ms. Rodriguez Tornes was targeted for violence by her domestic partners on account of her feminist political opinion. The BIA, however, also ignored extensive record evidence from expert witness Prof. Nancy Lemon, a leading authority on domestic violence, that directly rejects the BIA’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a “personal relationship.”
In contrast to the BIA’s “personal relationship” view of domestic violence,1 Prof. Lemon draws on more than three
1 The BIA cites Matter of A-B-, 27 I&N Dec. 316, 338–39 (A.G. 2018) as the basis for its assumption.
22 ROGRIGUEZ TORNES V. GARLAND
decades of research, writing, legal representation, and lawmaking to explain that “the socially or culturally constructed and defined identities, roles and responsibilities that are assigned to women, as distinct from those assigned to men, are the root of domestic violence.” She analyzes data from the U.S. Department of Justice, Bureau of Justice Statistics and studies from leading medical and social science publications to highlight “compelling evidence that heterosexual domestic violence is, in significant part, motivated by bias against women and the belief that men are entitled to beat and control women.” Prof. Lemon summarizes cross-cultural studies within the United States and internationally that demonstrate “a correlation between patriarchal norms that support male dominance and violence against women by intimate partners.”
In her report, which the IJ referenced in her decision, Prof. Lemon provides a lengthy examination of social science research exploring how particular behaviors exhibited by male abusers—including emotional abuse, sexual abuse, marital rape, economic abuse, blaming, guilt and using children—are each tied to social belief systems that “men are entitled to dominate and control women because the male sex is considered superior” and operate to “exploit the traditional socially constructed roles, identities, duties and status of women in intimate relationships.” In describing the legal, social, cultural, and political structures that lay the foundations for intimate partner violence, Prof. Lemon explains that “domestic violence is not typically caused by behaviors unique to the victim or by inter-personal dynamics unique to the relationship between the abuser and the abused. . . . Rather, heterosexual male batterers have certain expectations of intimate relationships with regard to which partner will control the relationship and how control will be
ROGRIGUEZ TORNES V. GARLAND 23
exercised. These expectations are premised on a dogmatic adherence to male privilege and rigid, distinct, and unequal roles for women and men.”
The record evidence of Prof. Lemon’s rigorous expert analysis undermines the BIA’s unsubstantiated premise that, unless otherwise shown, domestic violence is a purely private matter. The BIA makes no mention of the record evidence of Prof. Lemon’s expert analysis, let alone the decades of publicly available social science research and public policy that all reject the BIA’s outdated view of domestic violence as a quirk within a “personal relationship.”2 Thus, the BIA’s assertion that domestic violence is presumptively a private matter is not supported by substantial evidence.
2 See e.g., Nina Rabin, At the Border Between Public and Private: U.S. Immigration Policy for Victims of Domestic Violence, 7 Law & Ethics Hum. Rts. 109, 111–12 (2013) (“Fifty years ago, domestic violence was widely understood to be a private matter, and the extent to which it was appropriate for the state to intervene was highly contested. Now, domestic violence shelters, state laws and policies specific to the prosecution of domestic violence crimes, and significant state and federal government support for efforts to eradicate domestic violence are all commonplace. Crucial to bringing about this shift in the state’s role vis-à- vis domestic violence victims has been the acknowledgment of the structural roots of domestic violence. When conceived of as a problem tied to gender subordination and pervasive inequality rather than interpersonal conflict, the violence at issue demands a state response.”); Violence Against Women: Victims of the System, 102d Cong., 63 (1991); Elizabeth M. Schneider, The Violence of Privacy, 23 Conn. L. Rev. 973 (1991); Reva B. Siegel, “The Rule of Love”: Wife Beating As Prerogative and Privacy, 105 Yale L.J. 2117 (1996); Leslye E. Orloff & Janice v. Kaguyutan, Offering A Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses, 10 Am. U. J. Gender Soc. Pol’y & L. 95 (2001); see generally Am. Br. of the National Immigrant Women’s Advocacy Project.
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Congrats to all counsel involved for the “good guys.”
Another completely disastrous performance by the BIA!
Bias, sloppiness, legal errors galore, misuse of the appeals process, dissing experts, ignoring evidence, lousy analysis, an ethically questionable remand attempt by OIL, almost every aspect of the unmitigated professional disaster at the BIA and the failed DOJ is on display in this truly terrible parody of justice. These fundamental defects are what has helped generate incredible backlogs that EOIR and DOJ are attempting to cover up and shift blame to the individuals they systematically malign.
This disgraceful muck heap 🤮 won’t be cleaned up by bogus “case processing requirements!” What this system needs is expertise, fairness, due process, quality control, common sense, and human decency — in huge doses! A complete professional makeover!
Among the many good things about the Circuit decision is that it basically limited the impact of the atrociously wrong Sessions “precedent” in Matter of A-B-, even while overlooking the obvious ethical errors in his maliciously biased dicta and the glaring overarching constitutional problem in his improper interference and participation in the quasi-judicial process. This should be Exhibit 1 in why this process needs to be removed from the DOJ, placed in an independent Article I Court, and a new, qualified Appellate Division with real judges — capable of fairly and efficiently adjudicating asylum cases — selected to replace the BIA.
One particularly cruel, senseless, and inane aspect of the BIA’s attempt to “snuff” the respondent’s asylum application: Because of the essentially uncontested CAT grant, she was going to be allowed to remain in the U.S. anyway! So, this was all about illegally depriving an abused refugee woman of color of her ability to get a green card, become eligible for citizenship, and obtain full legal and political rights in our society!
Compare the time and effort expended by the BIA in trying to deprive this woman of her human rights with the carelessness and sloppiness of their legal analysis. That’s what the racist-driven “any reason to deny” culture created by Sessions, Barr, and their toadies at EOIR does to our justice system!
Imagine how much different the “retail level” of American justice would look with real judges and professional administrators, committed to due process, fundamental fairness, and best practices, in charge! Amazingly, that’s what the “EOIR Vision” once was, before the forces of darkness, ignorance, and bias took over the system.
Think of how different the skewed asylum statistics would look if we honored, rather than mocked, our legal obligations to asylum seekers. Think of how many more individuals could fairly and efficiently be welcomed into our country at our borders and abroad in a well functioning system, staffed with professionals, that adhered to the rule of law. Think of how a better, more honest, and more professional Immigration Court could provide positive guidance on how to grant needed protection, rather than gushing forth an endless stream of bogus “how to deny” precedents based on racial and gender bias and specious reasoning.
Professor Nancy Lemon Hastings Law Photo: law.hastings.comProfessor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings LawBlaine Bookey Legal Director Center for Gender & Refugee Studies @ Hastings Law Photo: CGRS website
Obviously, experts like Professor Nancy Lemon, Professor Karen Musalo, and her colleague Blaine Bookey are the types of individuals who should be Appellate Judges at the BIA. The current BIA’s glaring lack of professional competence and its unconscionable abuse of vulnerable asylum seekers, particularly the institutional ignorance and shameless misogyny with which claims by women refugees are treated, has to be one of the darkest and most inexcusable chapters in modern American legal history!
Food for for thought:
How would an unrepresented individual, particularly one in detention or stuck on a street corner in Mexico, be able to prepare, document, and present a case like this to a biased court and then appeal successfully to the Circuit?
How is this system constitutional in any way, shape, or form?
How might the massive investment of resources, time, effort, and expertise in vindicating the legal and human rights of one individual in a broken system be redeployed to promote systemic fairness and efficiency in a court system that actually complied with constitutional due process?
And, we shouldn’t forget that the Biden Administration is still illegally killing off asylum seekers at the border with no due process at all! Cowardly inflicting human misery on the most vulnerable in violation of our Constitution, our laws, and our international obligations has become our “new national pastime!”
We might be averting our eyes from the slaughter now, but history will document and remember what the world’s richest nation did to our fellow humans seeking protection in their hour of direst need! No wonder we must dehumanize “the other” to go on with our daily lives. No wonder that racial and social justice remain elusive, unfulfilled concepts, throughout our society, in today’s “What’s in it for me” atmosphere promoted by many of our politicos!
With the U.S. “on pace to encounter more individuals on the southwest border than we have in the last 20 years,” as Homeland Security Secretary Alejandro Mayorkas said in a statement March 16, immigration at the U.S.-Mexico border has emerged as one of the toughest challenges facing the Biden Administration. Last week, President Biden put Vice President Kamala Harris in charge of “stemming” the flow of migrants, Biden was questioned about the immigration situation at his first official press conference, immigrant detention centers began to fill up once again, and lawmakers from both sides of the aisle made trips to the border to publicize the issue and propose solutions.
Biden’s attempts to address immigration may be new, but the issue is one that has dogged his predecessors for decades. Since the 1970s, Republicans and Democrats alike have tried to address undocumented immigration by constructing ever more draconian policies of border control, deportation and detention—border theater that grabs headlines and sometimes leads to short-term change, but never actually solves the problem.
There’s a reason why the U.S. government has failed for so many years to “control” the border: none of these policies have addressed the real reasons for migration itself. In migration studies, these are known as “push” and “pull” factors, the causes that drive migrants from one country to another.
Today, the countries sending the most migrants to the U.S.-Mexico border–especially the Central American countries of Guatemala, Honduras and El Salvador–are experiencing a combination of push factors that include poverty and inequality, political instability, and violence. And while the current situation may be unique, it is also deeply rooted in history.
Many countries in Central America have struggled with poverty since the time of independence from Spain in the early 19th century. While they are beautiful countries that are rich in culture and history, that colonial past has meant they have historically been home to large, landless, poor, rural populations, including many indigenous people of Mayan descent. In the years after Spanish control, they were typically ruled by small oligarchies that disproportionately held wealth, land and power, and their economies were primary export-dependent, which brought great riches to landowners but also exacerbated and perpetuated inequality and the poverty of the majority. Those dynamics have carried forward to today. More recently, climate change–in particular, drought and massivestorms–has forced the vulnerable rural poor out of the countryside.
. . . .
And while many Central Americans could indeed qualify for asylum based on their experiences of persecution, the previous administration made every effort to limit their ability to obtain it. Now the Biden Administration must decide whether to restore the asylum framework, which has become the only possible path to legal migration (as well as safety and security) for Central Americans and other migrants who—due to these combined push and pull factors—are desperate to come to the United States.
Given the complicated and deep-rooted reasons behind migration, lawmakers cannot control or “solve” the ongoing crisis at the border by simply pouring money and resources into ever more militaristic border theater. It’s no wonder that decades of such policies have done little to change the underlying dynamics.
Instead, if Americans are serious about changing the situation at the border, we need to address the push and pull factors behind Central American migration. We need to acknowledge the reality of the U.S. economy (in particular, that it demands immigrant labor to work low-wage jobs) and work to construct new legal frameworks that reflect that reality. We need to target financial and logistical support to encourage Central American countries to address the poverty and inequality that fuel migration, rather than cutting foreign aid, as the Trump Administration did. We need to do all we can to end the pervasive gang violence that pushes so many migrants out of their homelands. And of course, we must continue to evaluate our own historical and contemporary role in creating the longstanding problems that are pushing Central Americans to migrate.
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Read the rest of Julia’s article at the link. One key truth: many more Central American migrants would qualify for asylum and be legally admitted to our society under a fair application of our asylum laws directed and supervised by real expert judges who scrupulously enforce due process and best practices on a now biased, unfair, and dysfunctional system!
“Stemming the tide” might be neither realistic nor possible at this time. But, controlling it, managing it humanely and legally, and regularizing it, while lessening the “push” factors should be achievable.
It would, however, require bold actions:
Recognizing the primacy of humanitarian protection laws and insisting on due process in implementing them;
Putting experts in humanitarian situations, due process advocates, diplomats, labor economists, and demographers in leadership positions; and
Embracing much larger levels of legal immigration, particularly from Latin America.
Vice President Kamala D. Harris Vice President of the United States (Official Senate Photo)
Unfortunately for Vice President Harris and the rest of us who want humane, realistic immigration policies, there are reasons for our half-century of overall failure on the border.
Bloated government bureaucracies, powerful corporate interests, nativist politicians, and even foreign leaders are heavily invested in expensive and guaranteed to fail “uber enforcement” gimmicks. Failure basically creates a never-ending demand for more: more enforcement agents, “civil prisons,” jailers, deporters, cars, trucks, guns, boats, ammo, walls, fences, technology, courts, judges, prosecutors, lobbyists, “baby jails,” processing centers, foreign aid that goes largely into the pockets of corrupt leaders and their cronies, and a never-ending supply of underground, low-wage, politically neutered workers.
Additionally, we now have an entire political party with an agenda of overt institutionalized racism, dehumanization of the other, and fear-mongering White Nationalist myths driving its bogus populist narrative.
None of these “architects and enablers of border failure and institutionalized racism” are going “quietly into the night.” They will fight tooth and nail to defend their sinecures, profitable empires, and politically useful White Nationalist myths.
The politician who finally breaks the deadly cycle of failure and human misery at our border, while harnessing and realizing the positive power of human migration, will become a hero for future historians and undoubtedly merit a chapter in a new edition of Profiles in Courage.
Sadly, such recognition and adulation is likely to come long after she is gone from the scene. Long term vision and moral courage are not necessarily rewarded with short-term political popularity. Just ask the few Republicans who voted in accordance with the overwhelming, basically uncontested, evidence of Trump’s “high crimes and misdemeanors!”
That’s why it’s a tough challenge even for someone of Vice President Harris’s undoubted intelligence and abilities. It’s up to those of us who believe in a better America to keep her from getting sidetracked and co-opted by the vested interests of failure and White Nationalist myth-makers and purveyors.
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia CommonsWoman 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-004160Woman 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-004160Filipe 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.
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.
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!
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 needa 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.
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!
Trump supporters and hangers-on boast the “success” of Trump’s immigration policies, demonstrated by the supposed drop in illegal entries. But this is merely an “out of sight, out of mind” approach to managing a very real problem. It was a giant sleight of hand which hid the actual number of people seeking entry into the U.S. Biden’s policies have pulled back the curtain and like so many other aspects of Trump’s administration, it is clear that the claims of success are nothing more than fantasies.
And yet the Biden administration is not off the hook. While it did agree to permit unaccompanied children to enter the U.S. despite the Title 42 ban, it did so following a preliminary injunction issued by a federal court last November. DHS continues to expel families, as well as single men and women, under the existing Title 42 order.
. . . .
Despite the clear moral and legal imperatives to stop Title 42 expulsions, the Biden administration is clearly worried that returning to pre-pandemic processing of asylum seekers will overwhelm the system. It is also clear that they fear a political backlash if critics are able to characterize the border as out of control.
Taking these final steps takes courage and political will. Those of us who support the rights of asylum seekers have to let the administration know that doing the right thing will not tarnish its reputation and that we will work even harder to ensure that making good on humane immigration policy is not political suicide.
Protecting asylum seekers is a woman’s issue of the first order. We must encourage and challenge both the administration and Congress to live up to U.S. obligations. We must turn out at the voting booth to support candidates and elected officials who act on behalf of asylum seekers. And we must push back, every way we can, against those who hope to weaponize the border in a callous effort to turn following the law into a political liability.
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Read Mary’s complete article at the link. Many thanks to Judge Alex Manuel of the ABA’s National Conference of the Administrative Law Judiciary for passing this along.
Surprisingly, “forced migration,” is exactly what it says it is: “FORCED migration” — not optional! As I have pointed out before: “We can diminish ourselves as nation (and are doing so), but it won’t stop human migration.”
Refugees come, because that’s what refugees do. They often come when the world is in crisis, because that’s one of the primary reasons why refugees flee. They seldom come in an orderly manner because flight to save your life doesn’t lend itself to “regularity.” How many Jews perished in Nazi-controlled areas before and during WWII waiting for visas that were never going to come?
And, what brings refugees to our borders actually has little to do with inane statements of politicos, bureaucrats, border cops, and the media. One of the main consequences of illegally “closing the border to asylum seekers” is that large numbers simply enter between ports of entry. Those who used to turn themselves in to the Border Patrol are encouraged by our short-sighted policies and unwillingness to follow our own laws just to keep on going.
We’d certainly do much better if we “canned” all the Trump-era illegal, racist nonsense, reopened border ports to asylum seekers, and encouraged them to apply there or in locations abroad. But, to make that happen we would also have to review their claims in a timely, fair, and humane manner — not “rocket science,” yet something that largely has eluded our nation, particularly since 2014.
It’s achievable. But not without much better leadership coming from experts who actually know how to deal with refugee situations in a humane and effective manner. Failed bureaucrats and grandstanding politicos, those who usually “drive the train heading for a wreck,” can’t do the job! That’s been proved time and again! Why do we insist on repeating all our mistakes? Cruelty and threats simply aren’t effective.
To emphasize Mary’s concluding point about women’s concerns, Jeff “Gonzo Apocalypto” Sessions and Neo-Nazi Stephen Miller made misogyny a focus of their vicious attack on people of color seeking asylum. It started with Sessions’s atrocious decision ignorantly and unlawfully targeting women refugees in Matter of A-B- and continued through Miller’s now-enjoined effort to unlawfully eradicate gender-based asylum grants. Never mind that women form the largest group of clearly identifiable refugees in the world and that femicide and violence against them driven by sexual antipathy and issues of control are rampant worldwide, particularly in the Northern Triangle.
But, a large problem here is that more than two months into the Biden Administration, Attorney General Merrick Garland has yet to repudiate Matter of A-B- and the other debilitating racist and misogynist “precedents” and grotesquely illegal anti-asylum policies of Sessions and Barr. Worse yet, he has neither stood up for the reinstatement of asylum laws and compliance with Constitutionally-required due process at the border, nor has he removed and replaced “his” Board of Immigration Appeals and taken steps to curb those of “his” Immigration “Judges” who are still engaged in furthering the Sessions/Barr White Nationalist, misogynist, anti-asylum agenda!
Interesting lack of action from a distinguished former Federal Judge who several months ago claimed great gratitude that his ancestors were given refuge from harm by the U.S. Is there some reason that those people of color and others now arriving at our borders and claiming legal protections under our laws are less deserving of fair, generous, and humane treatment?
Judge Garland’s View Of Proper Treatment of Women Seeking Asylum? Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
