"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
T. Alexander Aleinikoff American Legal ScholarDeb Amos International Correspondent NPRJulie Hirshfeld Davis Congressional Reporter NY TimesMichael D. Shear White House Reporter NY Times
From: Alex Aleinikoff
Sent: Tuesday, June 30, 2020 1:58 PM
To: Immprof
Subject: [immprof] Entry Denied on the Tempest Tossed podcast
Please excuse this shameless self-promotion. We launched today the first of an 8-episode series on the Tempest Tossed podcast on Trump immigration policies. The series is called Entry Denied: Immigration policies in the time of Trump. In this first episode, Deb Amos (NPR) and I speak with NY Times reporters Michael Shear and Julie Hirshfeld Davis on how immigration became central to the Trump campaign. There will be a new episode each of the next 7 Tuesdays (on asylum, the wall, DACA, etc).
It is available on most podcast platforms (Apple, SoundCloud, Spotify)–search for Tempest Tossed.
Alex
—
University Professor
Director, Zolberg Institute on Migration and Mobility
The New School
********************
I trust that at some point Alex will get around to telling everyone about the time back in the Carter Administration when we were on the verge of making then Associate Attorney General John H. Shenefield an official “Immigration Officer” to serve process on the tarmac @ JFK International. Or how with a little help from our late friend Jerry Tinker, Alex, David Martin, and I “perfected” the Refugee Act of 1980 just in time for the Cuban Boatlift. Whose idea was “Cuban/Haitian Entrant Status Pending” anyway? How come you never had to visit the Atlanta Federal Penitentiary during a lockdown, Alex?
Sounds like a most timely and fascinating series involving one of the all time great modern legal minds.
Thanks and best wishes to all involved in this historic enterprise! 🍾🥂🍻
Easy to see why ending racism and applying the crystal clear Constitutional requirement of due process and equal justice for all persons in the U.S. has been so hard to achieve! Achieving would start with Justices who actually believe in the Constitution!
What if Justices believed “that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness?”While some might find these rights to be “self-evident,” not so much the majority of current Supremes’ Justices who apparently believe asylum seekers to be something less than human.
The Dred Scott decision is no longer good law. When will we get Justices who unanimously stop applying it to immigrants and asylum seekers in our country?
It isn’t rocket science. You either believe in equal justice under law, as required by our Constitution, or you don’t. Just how did so many “nonbelievers” in the Constitution make it to our highest Constitutional Court?
‘Failure Is Striking’: Trump-Tapped Judge Throws Out Administration’s Asylum Restriction
U.S. District Judge Timothy Kelly panned DOJ attorneys for leaning heavily on a single newspaper article in arguing the asylum restriction was exempt from rulemaking procedures.
A federal judge in Washington, D.C., late Tuesday vacated a Trump administration rule that blocked migrants from petitioning for asylum in the U.S. if they were not first denied the protections by other countries they traveled through on their way to the southern border.
U.S. District Judge Timothy Kelly, appointed to the bench by President Donald Trump, issued the ruling nearly a year after he first rejected a temporary restraining order against the restriction. A similar challenge has played out in federal court in California, where the U.S. Court of Appeals for the Ninth Circuit has upheld a preliminary injunction against the rule. The U.S. Supreme Court had previously said the administration can enforce the measure while that court fight played out.
In Tuesday’s ruling, Kelly found Trump officials violated the Administrative Procedure Act by not following the law’s “notice-and-comment” requirement before enacting the rule. He did not address other legal claims made against the policy.
Kelly rejected arguments from Trump Justice Department attorneys that officials could skip the notice-and-comment period for this rule through the APA’s “good cause” exception. Government lawyers said making the rule available for comment before it was implemented could cause a surge of asylum seekers at the border, but Kelly said there was “not sufficient evidence” to meet the exception.
Kelly slammed DOJ attorneys for leaning heavily on an October 2018 Washington Post article in making that argument, finding that the single newspaper article did not provide evidence for their record and there was little other evidence to support their claims.
“Even assuming that the rule was likely to have had a similar effect as the regulatory change described in the article, the article contains no evidence that that change caused a surge of asylum seekers at the border—let alone one on a scale and at a speed that would have jeopardized their lives or otherwise have defeated the purpose of the rule if notice-and-comment rulemaking had proceeded,” Kelly wrote. “In fact, the article lacks any data suggesting that the number of asylum seekers increased at all during this time—only that more asylum seekers brought children with them.”
The judge similarly rejected government charts showing data on border enforcement and encounters for not directly supporting DOJ’s claims.
“At bottom, as plaintiffs point out, defendants—‘despite studying migration patterns closely’—have ‘failed to document any immediate surge that has ever occurred during a temporary pause in an announced policy.’ That failure is striking,” Kelly wrote.
. . . .
*********************
Those with NLJaccess (or who haven’t exhausted their three free articles for the month) can read the rest of Jacqueline’s article at the link. The link to the full decision in CAIR Coalition v Trump is in the excerpt. I’ll have to admit that as an admirer of CAIR’s unrelenting efforts to protect our Constitution and our legal system from Trump’s racist-inspired lawlessness, the caption of this case is particularly fitting and satisfying.
Bravo for U.S. District Judge Timothy Kelly for taking his job as an independent decision-maker and his oath to uphold the Constitution and the laws of the U.S. seriously!
This decision also casts doubt on the judicial integrity of those Supreme Court Justices who ignored the law to “greenlight” this same invalid regulation in the Barr v. East Bay Sanctuary. So far, the lower Federal Courts that have taken time to examine and reflect on the law have found Trump’s action’s unlawful. Makes one wonder why the Supremes’ majority was so overanxious to “get on with the killing” of refugees when the individual interests are life or death while the government interests are fabricated or highly exaggerated, factually inaccurate, pretexts.
When policy is made by Stephen Miller’s racist talking points rather than expert input and honest deliberation involving the common good, bad things are going to happen to those we are supposed to protect, not reject for fabricated reasons.
Still, Trump shouldn’t worry too much. He can still take his bad faith case to the D.C. Circuit where Judge Naomi “Show Me Where to Sign on My Master’s Bottom Line” Rao awaits. And, then there’s the J.R. Five who have shown the willingness and ability to accept almost any kind of unethical BS laid out by outgoing Trump SG Noel Francicso to “stick it to” vulnerable asylum seekers.
How will “The Five” function come October Term without Francisco to relay Trump’s wishes and to feed them thin cover stories that most lawyers would recognize as phony as a three-dollar bill?
Catherine Rampell Opinion Columnist Washington Post
By Catherine Rampell
June 29 at 7:16 PM ET
Last week President Trump suspended visas for huge categories of immigrants, allegedly to “protect American jobs.”
To understand how disingenuous this rationale is, consider the case of Vihaan Baranidharan.
Vihaan is stuck in India, where he went to see his sick grandmother for what was supposed to be a short visit. Thanks to Trump’s order, he’s blocked from getting the visa stamp needed to return to Dallas. But Vihaan has not taken, nor has any plans to take, any American’s job. He doesn’t have the experience to be competitive in the U.S. job market — or even sufficient vocabulary.
Because Vihaan just finished first grade.
“What risk could he pose to the U.S. economy?” pleads his mother, Sindhu Turumalla. “He is 7.”
That doesn’t matter to the Trump administration, which is exploiting the economic downturn as another excuse to punish immigrants — whether legal or undocumented, professional or working class, entrepreneur or student, adult or child.
The United States is so far the only country to “explicitly justify mobility limitations not on grounds of health risk, but to protect the jobs and economic wellbeing of” its citizens, according to the Migration Policy Institute.
In an April executive order, Trump suspended issuance of green cards for most people applying from abroad. Last week’s executive order expanded the ban to large categories of temporary, employment-based visas. This included the highly skilled immigrants the administration usually claims it prioritizes, as well as any spouses and minor children who normally accompany these workers.
The U.S. economy is indeed in bad shape. But it’s hard to fathom that the estimated 377,000 would-be immigrants now barred from entry present much “risk to the U.S. labor market,” as Trump claims.
Keeping them out, however, could actually harm the economy in the long run. Vihaan’s family presents a helpful case study.
His dad, an executive handling cybersecurity at a major global bank, has been based in the United States since 2017 on a visa specifically for executives transferred from abroad within the same company. He manages, and hires, U.S. workers. While unemployment overall is in double digits, in his field — computer-related occupations — unemployment has declined since the pandemic began, hitting 2.5 percent in May.
What’s more, economists generally believe that highly skilled immigrants like him create job opportunities for Americans and make the country more competitive, especially in STEM, or science, technology, engineering and math, fields.
. . . .
*********************
Read the rest of Catherine’s article at the link.
Let’s see, 21 million Americans out of work.377,000 foreign workers barred. That’s less than 2% — statistically insignificant. But, politically, it’s “red meat” to Trump’s White Nationalist followers.
Beyond that, it’s largely apples and oranges. Among others, Trump is barring intracompany executives and managers, those with specialized business knowledge, skilled professionals, and those coming under exchange programs. But, the hardest hit sectors of the U.S. workforce have been things like hospitality, government, and mining.
So, Toyota is going to hire an out of work bartender to run a U.S. Division? An international tech company is going to replace its chief information officer with an out of work coal miner? Or, perhaps a laid off government bureaucrat is going to replace a seasonal camp counselor in Maine? Not likely. More realistic that the employer would simply shift the work abroad or just close or reduce the U.S. operations.
During my years in the INS, we went through various iterations of “programs” to notify state and local employment agencies when a major enforcement operation supposedly “freed up” jobs for U.S. workers — usually in agriculture or manufacturing. None of these efforts created meaningful opportunities that U.S. workers were ready, willing, and qualified to take, at least on any systematic, consistent, or widespread basis.
The oft-cited claim that “they are taking our jobs” or that deportations, exclusions, and bars “protect the American labor market” is largely unsupported by hard data. Let’s just take a look at those who advance such basically mythical claims: nativist immigration groups and GOP politicos.
These are the same folks who oppose increases in minimum wages, bust unions, eliminate health and safety protections, don’t believe in health care, weaken anti-discrimination protections, cut unemployment benefits, and support management’s unilateral right to exploit workers to the max. These are not groups and individuals with any real concerns about the health or welfare of U.S. workers except to the extent that they think their claims — supplemented with racist dog whistles identifying the “foreign invaders” as people of color — might win them some votes at election time.
Or let’s take something more basic. I just listened to a news report saying that the simple act of everyone wearing a mask could save the U.S. economy one trillion dollars. That’s real money!
So, if Trump, Pence, and the GOP really wanted to help American workers and the economy in a meaningful way, they would be pulling out all the stops to promote, actually demand, that all Americans wear masks and practice social distancing. They would be strongly supporting governors, mayors, and public health officials urging these uniform practices. Yet, that’s not what’s happening.
The visa suspension is just another Trump racist ruse. Something to make the gullible think he is concerned about them when fact is he’s never been concerned for anyone in his life except himself. But, it’s dangerous because it promotes the myth of the link between immigrants and America’s economic problems and shifts the attention from the Trump kakistocracy’s “malicious incompetence” that actually was a major contributing factor to our inept, at best, COVID-19 response and the problems and chaos that have followed.
The real situation looks more like this: 1) with the economy ailing, there would be a natural decline in job-based immigration in certain sectors because of market forces, regardless of what Trump does; 2) with America’s well-advertised failure to deal competently with COVID-19 and Trump’s ugly hate rhetoric, “immigrants with choices” may well choose other destinations (Canada is one that is already benefiting from Trump’s obsession with xenophobic immigration policies); 3) with Americans barred from entry into the EU and perhaps other countries, the vital force of immigration and its overall positive effect on the world economy will be muted in the U.S.; and 4) with the legal immigration system, including the refugee and asylum systems, shut down whatever future immigration does occur under Trump is likely to be of the extralegal variety, unscreened, unmonitored, and uncontrolled.
The latter are likely to be refugees with limited options, driven more by necessity than economics, although for many refugees persecution and economic factors are inextricably intertwined. Even here, the practical difficulties of travel during a worldwide pandemic are likely to have more of an impact than Trump’s elimination of asylum.
Indeed, our country has long benefitted from asylum seekers’ (now sadly misplaced) trust in the U.S. legal system that leads to their turning themselves in at ports of entry, surrendering near the border, or voluntarily applying at a USCIS Asylum Office in the U.S. With the U.S. legal system now in “full fraud mode” refugees stand a better chance of losing themselves in the interior than of gaining protection from a system specifically designed to treat them unfairly and abusively.
Trump claims great “success” for his abrogation of the legal immigration system and crimes against humanity. But, who really knows how many folks cross the border without our knowledge and where they end up? And, no ridiculous and wasteful wall is going to stop that.
That doesn’t mean that the extralegal immigration won’t be beneficial — past extralegal immigration has benefited the U.S. overall and often, but not always, the migrants themselves. But, by keeping migrant populations underground, living in fear and uncertainty, and subject to exploitation, we limit the immigrants’ abilities to reach their full potential and to contribute fully to our society. In other words, we limit our own capacity to get the full benefit of the reality of human migration in a global society.
In November, we have a chance to end the stupidity and cruelty and to establish a more just society that recognizes the benefits of equal justice for all and treats migrants fairly, humanely, rationally, and with respect for their legal and human rights. We can’t afford to blow it, again!
This November, vote like your life depends on it!Because it does!
Discerning a hierarchy of depravity among Trump’s provocations is not easy. His increasingly strident racism is complicating America’s reckoning with current injustices and grave historical crimes. His politically motivated sabotage of essential public health measures has likely cost thousands of lives. But there is something uniquely debased about a commander in chief who receives the salutes of soldiers while his administration does nothing about credible information on a plot to kill them.
And that is what the Trump administration seems to have done. If, as reported by multiple news sources, the White House was informed in March that Russian intelligence units were placing bounties on the heads of U.S. troops in Afghanistan, then the administration’s silence and inaction have been a form of permission.
The president’s claim of ignorance is not credible. This act of aggression would be a major escalation by a strategic rival. If the United States received intelligence about the bounties, and if response options were considered at a high level within the White House, there is simply no way the president and his senior staff would have been kept in the dark. It is information directly pursuant to Trump’s function as commander in chief.
. . . .
**************
Read the rest of Michael’s article at the link.
Sadly, Michael, the answer to the question I posed above is “the modern GOP.”
You really appear to be a decent human being and a courageous writer. How did you ever fall in with such a disreputable gang as the GOP?
Anyway, glad you finally have seen the light. My parents were Republicans. But, to state the obvious, this isn’t your parents’ (or at least my parents’) GOP. Apparently, not yours either. Which is a good thing — at least a start.
Just eight miles from the White House, the Trump administration has quietly opened a new front in its war against immigrants. Inside a 26-story office tower next to a Target in Falls Church, Virginia, the Board of Immigration Appeals has broken with any pretense of impartiality and appears to be working in lockstep with the administration to close the door on immigrants’ ability to remain in the country.
Created in 1940, when the immigration system was moved from the Department of Labor to the Justice Department, BIA serves as the appellate court within the immigration system, where both ICE prosecutors and noncitizen respondents can appeal decisions by individual immigration court judges around the country. It not only decides the fate of the migrants whose cases it reviews; if it chooses to publish a decision, it sets precedent for immigration courts across the country.
Under previous administrations, the BIA was ostensibly impartial and bipartisan, though mainly out of a long-standing tradition of promoting judicial objectivity. Since the entire immigration court system is contained in the Department of Justice—within an administrative agency known as the Executive Office for Immigration Review (EOIR)—immigration judges, including those serving as board members on the BIA, are employees of the DOJ, and, by extension, are part of the executive branch. Unlike their counterparts in the federal judiciary, immigration judges are not independent.
TOP ARTICLES2/5READ MOREPence Masks Up While Trump Keeps Dog-Whistling
Since 2018, the Trump administration has exploited its powers over the BIA by expanding the board from 17 to 23 members to accommodate additional anti-immigrant hardliners. Justice Department memos obtained by the American Immigration Council and the American Immigration Lawyers Association (AILA) show that EOIR pushed shorter hiring timelines, which were used to bring on judges with more restrictionist records.
Now the court is stacked with members who have consistently ruled against immigrants, such as one judge who threatened to unleash a dog on a two-year-old boy during a hearing. Numbers obtained by a law firm through a Freedom of Information Request show that the six BIA judges appointed by Attorney General William Barr all had granted asylum in less than 10 percent of cases in fiscal year 2019. (One never granted asylum, despite hearing 40 cases.) An EOIR spokesperson told The Nation in an e-mail that“EOIR does not choose Board members based on prohibited criteria such as race or politics” and that “Board members are selected through an open, competitive, merit-based process.”
The most notable example of the administration’s preference for ultraconservative judges came in late May, when Barr appointed David H. Wetmore as BIA chairman. Wetmore, a former immigration adviser to the White House Domestic Policy Council, was around for some of the Trump administration’s most egregious policies, including the travel ban and family separation policy.
Although only two decisions have been issued since Wetmore was appointed chair, he seems set to pick up where his predecessor, former Acting Chair Garry G. Malphrus, left off. Malphrus, a George W. Bush holdover, became the face of the court’s lurch to curtail immigrants’ legal protections since Trump took office. He had the hawkish bona fides that made him an ideal chairman under the Trump DOJ: From 1997 to 2001, he served as chief counsel to one-time segregationist Senator Strom Thurmond on the Senate Judiciary Committee, and he was made associate director of the White House Domestic Policy Council after his roleas a Brooks Brothers rioter during the 2000 Bush v. Gore recount in Florida—during which GOP operatives staged a protest that disrupted a recount and may have handed Bush the presidency.
Malphrus was made acting chair in 2019, and authored 24 of the 78 BIA precedential decisions issued under the current administration. Almost all of these precedential decisions have made it more difficult for immigrants to win their cases. The board made it harder for victims of terrorism to win asylum and raised the bar of evidence needed for several types of protections.
“It’s not a court anymore, it’s an enforcement mechanism,” said Paul Wickham Schmidt, who was himself chair of the BIA between 1995 and 2001 and now writes a popular immigration blog called Immigration Courtside. “They’re taking predetermined policy and just disguising it as judicial opinions, when the results have all been predetermined and it has nothing to do or little to do with the merits of the cases.”
Consider this: In a case decided in January, the BIA was considering whether an immigration judge had erred in refusing to postpone a removal decision for a person awaiting a decision on a U visa application—a visa type reserved for victims of certain crimes or those cooperating with authorities investigating a crime—to be resolved. (ICE had recently changed their policies to make it easier to deport people in this situation.) The BIA sided with the judge, acknowledging that the crime victim was “eligible for a U visa” but was not entitled to wait to receive it, in part due to his “lack of diligence in pursuing” one. The decision signals that immigrants eligible for crime victim visas, and who are willing to cooperate with law enforcement, can still be ordered deported.
While federal courts hear public oral arguments and largely deliberate openly, the BIA typically uses a paper review method, which means they receive briefs from opposing parties and hand down a decision some time later with the whole intervening process shrouded in secrecy. “Unlike federal courts, where unpublished decisions are still accessible by the public, and so you can track what judges are saying in decisions that do not make precedent, the [BIA] only sporadically releases those decisions,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.
. . . .
*****************************
Read the rest of Filipe’s article at the link.
Filipe’s final point in the article is one we should all keep in mind:
For hundreds of thousands of immigrants, it doesn’t matter if the anti-immigrant paper pushers in this obscure administrative body are tossed out and all of the policy is slowly reversed by another administration; for most, one shot is all they get. Whether a case was winnable before or even after the Trump BIA is irrelevant. The chance to stay in the United States will be lost forever.
The damage to our humanity and our national conscience inflicted by Trump’s White Nationalist regime, wrongfully enabled by complicit Supremes, and aided and abetted by a GOP Senate will not be “cured” by inevitable later “reforms,” be they next year under a better Administration or decades from now, as is happening with other racial justice issues. Undoubtedly, as eventually will be established, the current anti-immigrant and particularly the anti-asylum policies of the Trump regime are deeply rooted in racism, xenophobia, and misogyny. One need only look at the well-documented careers of “hate architects” like Stephen Miller, Steve Bannon, and Jeff Sessions to see the intentional ignorance and ugliness at work here.
I frankly don’t see how we as a nation ever can come to grips with the racial tensions and demands for equal justice now tearing at our society without recognizing the unconscionable racism and immorality driving our current immigration and refugee policies and the failure and untenability of too many leaders in all three branches who have either helped promote racial injustice or have lacked the moral and intellectual courage consistently to stand up against it. They are the problem, and their departure or disempowerment, no matter how long it takes, will be necessary for us eventually to move forward as one nation.
With Trump leading the way, America’s coronavirus failures exposed by record surge in new infections
By Toluse Olorunnipa, Josh Dawsey and Yasmeen Abutaleb
June 27 at 5:38 PM ET
. . . .
Later Friday, the United States recorded more than 40,000 new coronavirus cases — its largest one-day total.
It was the latest example of whiplash from the Trump administration, which has struggled to put forward a consistent message about the pandemic. While public health experts urge caution and preventive measures such as mask-wearing and social distancing, Trump, Pence and other top aides repeatedly flout their advice, leaving confused Americans struggling to determine who to believe.
“They’re creating a cognitive dissonance in the country,” one former senior administration official said. “It’s more than them being asleep at the wheel. They’re confusing people at this point when we need to be united.”
This portrait of a nation in crisis — and its failure to contain an epic pandemic — is based on interviews with 47 administration officials, lawmakers at the national and state level, congressional staff, federal and local health officials, public health experts and other current and former officials involved in the bungled and confused response.
America’s position as the world’s leader in coronavirus cases and deaths is in large part the result of human error, and the still-rising caseload stands as a stark reminder of the blunders that have characterized the national response. Trump’s actions, and his position in the Oval Office, make him a central figure in any assessment of the country’s handling of the outbreak.
. . . .
As local officials struggled to enforce stay-at-home orders and other restrictions, the virus continued to circulate throughout a country riven by partisan politics and devoid of a national public health strategy, said Max Skidmore, a political scientist at the University of Missouri at Kansas City and author of a book on presidential leadership during health crises.
“We’re the only country in the world that has politicized the approach to a pandemic,” he said.
Now, covid-19, the disease caused by the coronavirus, is advancing at an accelerated pace in the United States, even as other countries reopen their economies after getting their outbreaks under control. European diplomats are poised to approve an agreement that will reopen the European Union to travel from many countries but not American tourists, because the coronavirus is still raging in the United States.
In contrast, states from Arizona to Florida are pausing or reversing their attempts to reopen their economies.
The new peak in cases — coming so quickly after the first and with just months to go before a presidential election and an impending flu season — has alarmed public health experts and the president’s political allies.
“These epidemics are going to be hard to get under control,” said Scott Gottlieb, the former commissioner of the Food and Drug Administration and an informal adviser to the Trump administration. He said he expects deaths to soon climb to more than 1,000 per day again. “It’s going to continue to spread until you do something to intervene. I’m not sure we are taking enough forceful action to break the trend right now.”
The president has dramatically scaled back the number of coronavirus meetings on his schedule in recent weeks, instead holding long meetings on polling and endorsements, his reelection campaign, the planned Republican National Convention in Jacksonville, Fla., the economy and other topics, according to two advisers, who, like others, spoke on the condition of anonymity to discuss internal deliberations.
. . . .
******************************
Read the full article at the link.
There’re no “good” time for the insanity of a supposedly advanced nation putting an evil moron and his kakistocracy in charge. That’s particularly true when that evil, grotesque ignorance, and astounding dishonesty were well-advertised and documented in advance of the 2016 election.
How would you expect a jerk whose most famous line was “You’re fired” to perform in a leadership position requiring intelligence, integrity, compassion, vision, moral courage, and the ability to positively inspire others to perform? Duh!
It’s no mystery that a man without visible redeeming qualities will perform just as horribly, if not worse, than the majority of us predicted. But, next to a world war, a worldwide pandemic is probably the worst possible time to have “malicious incompetents” at the controls.
Got a healthcare crisis? Eliminating health insurance for 23 million Americans is the obvious solution!
This plane is going down folks. Better get a real pilot into the cockpit before it’s too late!
This November, vote like your life depends on it! Because it most certainly does!
The Supreme Court Doesn’t See Asylum-Seekers as People — One week after saving DACA, the high court proved that its sympathies for immigrants seeking better lives are limited.
Last Thursday, the Supreme Court saved more than 700,000 immigrants from the Trump administration’s nativist buzz saw. The court ensured that these immigrants, who were brought to the United States by their undocumented parents as children, would continue to be protected by an Obama administration policy called Deferred Action for Childhood Arrivals, sparing them from deportation to countries many could not even remember. The court split 5–4, with Chief Justice John Roberts throwing his lot in with the liberals to find that Donald Trump’s rescission of DACA had been unlawful—largely because it had been carelessly effectuated, defended pretextually, but also because hundreds of thousands of young people had altered their lives in reliance on the promise that they would be immune from deportation.
In a key section of the majority opinion, Roberts highlighted the humanity of these young undocumented people, as was the hopes and dreams of their families: “Since 2012, DACA recipients have enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance” on DACA, Roberts wrote, quoting from briefs in the case. “The consequences of the rescission … would ‘radiate outward’ to DACA recipients’ families, including their 200,000 U.S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them.” The chief justice evinced frustration that the Trump administration seemingly took none of those very human interests into account.
One week later, on Thursday morning, the high court proved that its sympathies for immigrants seeking better lives are limited. In a 7–2 ruling, the justices approved the Trump administration’s draconian interpretation of a federal law that limits courts’ ability to review deportation orders. This time around, the court did not note immigrants’ contributions to the nation or acknowledge their humanity in any way. Having last week treated one class of immigrants like actual people, the court on Thursday pivoted back to callous cruelty. All of the chief justice’s kind words about DACA recipients seemingly do not apply to immigrants who—according to the executive branch—do not deserve asylum.
Thursday’s case, Department of Homeland Security v. Thuraissigiam, involves an asylum-seeker from Sri Lanka named Vijayakumar Thuraissigiam who faces likely death if he is deported because he is Tamil. Thuraissigiam was apprehended by the U.S. Border Patrol while trying to cross at the southern border in 2017. After an asylum officer and immigration judge rejected his claims, Thuraissigiam was slated for “expedited removal.” Federal law bars courts from reviewing that deportation order. But the 9th U.S. Circuit Court of Appeals found the law unconstitutional as applied to Thuraissigiam under the Constitution’s suspension clause, which limits the government’s ability to restrict habeas corpus—the centuries-old right to contest detention before a judge.
At the Trump administration’s request, the Supreme Court reversed the 9th Circuit, with Justice Samuel Alito writing a maximalist majority opinion for the five conservatives and Justices Stephen Breyer and Ruth Bader Ginsburg proffering a narrower concurrence. Justice Sonia Sotomayor penned a lengthy, vivid dissent joined by Justice Elena Kagan that accused the majority of flouting more than a century of precedent and “purg[ing] an entire class of legal challenges to executive detention.” (In his own opinion, Alito dismissed Sotomayor’s criticisms as mere “rhetoric.”)
This outcome strips due process from immigrants seeking asylum, who now have even fewer rights to a fair adjudicatory process under an expedited system that already afforded them minimal protections. It will also embolden the Trump administration to speed up deportations for thousands of people with no judicial oversight. Under this now court-approved system, immigrants fleeing their home country must undergo a “credible fear” interview, at which they must explain to a federal officer why they qualify for asylum. (The Trump administration has allowed Customs and Border Protection agents—not trained asylum officers—to conduct credible fear interviews.) If the officer finds no “credible fear of persecution,” their supervisor reviews the determination, as does an immigration judge (who is not a traditional judge but rather an employee of the executive branch appointed by the attorney general). If these individuals find no credible fear, the immigrant is thrown into “expedited removal”—that is, swiftly deported in a matter of weeks. They may not contest the government’s “credible fear” determination before a federal court. It is this extreme rule that Thuraissigiam challenged as a violation of habeas corpus and due process.
Alito breezily dismissed Thuraissigiam’s individual claims by stripping a broad swath of constitutional rights from unauthorized immigrants. First, he declared that habeas corpus does not protect an immigrant’s ability to fight illegal deportation orders. Sotomayor fiercely contested this claim, citing an “entrenched line of cases” demonstrating that habeas has long protected the right of individuals—including immigrants—to challenge illegal executive actions in court. Second, Alito held that unauthorized immigrants who are already physically present in the United States have not actually “entered the country.” Thus, they have no due process right to challenge the government’s asylum determination. Sotomayor noted that this holding departs from more than a century of precedent by imposing distinctions drawn by modern immigration laws on the ancient guarantee of due process.
Alito not only waved away these galling consequences; he seemed to laugh at them.
The upshot of the decision will mean almost certain death for Thuraissigiam and others like him. Thuraissigiam faced brutal persecution in Sri Lanka, a fact Alito did not seem to understand at oral arguments. Various officials in the executive branch shrugged off that persecution. Thuraissigiam just wants an opportunity to prove to a federal judge that these officials violated the law by denying his asylum claim. Now, thanks to the Supreme Court, he cannot. Nor can the many immigrants thrown into expedited removal by the Trump administration, which has used the process as a tool to speed up deportations across the country. Just two days ago, a federal appeals court cleared the way for the government to expand expedited removal beyond immigrants intercepted near the border to those apprehended anywhere in the nation. The administration has shown little interest in carefully considering whom it’s deporting; now many of those decisions will be rubber-stamped by executive officers and left unscrutinized by the federal judiciary.
Alito not only waved away these galling consequences; he seemed to laugh at them. Not for a moment does he appear to believe that asylum-seekers may be genuinely in fear for their lives. Among the many bon mots dropped by Alito in his opinion, he wrote: “While [Thuraissigiam] does not claim an entitlement to release, the Government is happy to release him—provided the release occurs in the cabin of a plane bound for Sri Lanka.” Given that Thuraissigiam claims he will likely be tortured to death if he is sent back to Sri Lanka, it’s not clear that line means what he thinks it does. Throughout the opinion Alito refers to Thuraissigiam as either “alien” or “respondent” and appears simply incapable of imagining that his claims are truthful.
It’s easy to miss the massive erosion of asylum-seekers’ rights in the victory last week around the triumph of DACA. But in some ways, it’s the most American outcome in the world to view DACA beneficiaries as more human because they have gone to school here and birthed children here, while scoffing at asylum-seekers, who, as part of a lengthy tradition under both constitutional and international law, simply ask the U.S. government to save their lives. Roberts, who seemed so attuned to the hardships of DACA recipients, joined Alito’s merciless opinion in full; in fact, the chief justice assigned the opinion to Alito, who has become the court’s staunchestcrusaderagainst immigrants’ rights.
The court’s split shows that a majority of justices think immigrants like Thuraissigiam are not the productive young people of the DACA case, with financial and familial ties to all that makes America great, but rather faceless masses cynically manipulating America’s generous asylum policy and overwhelming its immigration system. They believe these people do not deserve an iota of sympathy, let alone due process. That is already how many border agents viewed these immigrants: not as humans with rights, but as fraudulent parasites. The Supreme Court has now transformed that vision into law—and, in the process, allowed the executive to send more persecuted people to their deaths without even a meaningful day in court.
Support our independent journalism
******************************
Imposing death sentences without fair hearings, or indeed any real hearings at all, is bad stuff. And, Justices who justify this behavior should not be on the bench at all.
Sadly, that applies just as much to the two so-called “liberal icons” who voted with Alito and four other sneering colleagues who seemed to actually glory in being able to dehumanize another soul with the audacity to fight for his life. Frankly, this stuff is right out of the Third Reich. Read a few of the German Judiciary’s opinions of the time and see how quickly, easily, naturally, and often happily Reich jurists “justified the unjustifiable and the unthinkable.” I have no doubt that Sam Alito and some of his colleagues would have fit right in. How has American Justice gotten to this incredible “low point.”
I don’t know exactly what we can do about life-tenured judges who are unqualified for their jobs. Life tenure is there for a reason — to insure judicial independence overall, even in particular instances like this where it clearly does no such thing. And, with 200+ largely unqualified Trump appointees now on the Federal Bench, essentially “young deadwood,” the problem will get worse before it gets better.
The first step is to replace Trump and oust the GOP from the Senate. Then, methodically appoint only judges committed to equal justice for all, willing to stand up against abuses of justice by both the Executive and the Congress, and whose life experiences and legal work show an unswerving commitment to human rights and the rights of migrants to be treated as persons (fellow humans) under law.
It’s a national disgrace that with immigration and human rights the major issues clogging today’s Federal Courts, few, if any, Federal Judges have any experience representing asylum seekers in the Star Chambers known as “Immigration Courts” nor have they personally experienced the type of dehumanization, racism, torture, grotesque abuses, and unnecessary cruelty that they so unnecessarily, uncourageously, and glibly inflict on migrants and asylum seekers who indeed are the most vulnerable among us. If immigration and human rights are the pivotal issues of American justice, then we need to get Justices and judges on the bench who understand what they are doing and the dire human consequences of their actions (or inactions).
The situation of today’s asylum seekers of color is not much different from that of others Americans of color whose legal and Constitutional rights were denied, and whose humanity was intentionally degraded, by a corrupt judiciary and a legal system that intentionally failed to make Constitutonal equal justice for all a reality rather than a cruel fiction .
A nation that doesn’t demand better judges will never rise above its own mistakes and failures. And a Federal Judiciary that so obviously and intentionally lacks diversity and humanity can never properly serve the national interest.
Ditch the clueless, largely white, male “dudocracy” with their Ivy League degrees and not much else to offer. Appoint judges schooled in real life, who know what the law means in human terms and will use it to solve, rather than aggravate, inflame, or avoid, human problems! There are tons of such lawyers out there. We all know them. We need them to move from the “bullpen” to the Federal Benches, before it’s too late for everyone in America!
Folks, what we have here is “judicially-approved murder without trial.” It could also be called “extrajudicial killing.” Ugly, but brutally true! “The upshot of the decision will mean almost certain death for Thuraissigiam and others like him.” We should understand what’s happening, even if seven disingenuous and unqualified members of our highest court claim not to know or care what they are doing and refuse to acknowledge the real life consequences of their deep, dark, and disturbing intellectual corruption and their studied lack of human compassion, empathy, and decency.
Vote ‘Em Out, Vote ‘Em Out! It’s a Start On A Better Court, For America & For Humanity!
‘I Will Not Stand Silent.’ 10 Asian Americans Reflect on Racism During the Pandemic and the Need for Equality
SANGSUK SYLVIA KANG
ANNA PURNA KAMBHAMPATY
Diseases and outbreaks have long been used to rationalize xenophobia: HIV was blamed on Haitian Americans, the 1918 influenza pandemic on German Americans, the swine flu in 2009 on Mexican Americans. The racist belief that Asians carry disease goes back centuries. In the 1800s, out of fear that Chinese workers were taking jobs that could be held by white workers, white labor unions argued for an immigration ban by claiming that “Chinese” disease strains were more harmful than those carried by white people.
Today, as the U.S. struggles to combat a global pandemic that has taken the lives of more than 120,000 Americans and put millions out of work, President Donald Trump, who has referred to COVID-19 as the “Chinese virus” and more recently the “kung flu,” has helped normalize anti-Asian xenophobia, stoking public hysteria and racist attacks. And now, as in the past, it’s not just Chinese Americans receiving the hatred. Racist aggressors don’t distinguish between different ethnic subgroups—anyone who is Asian or perceived to be Asian at all can be a victim. Even wearing a face mask, an act associated with Asians before it was recommended in the U.S., could be enough to provoke an attack.
Since mid-March, STOP AAPI HATE, an incident-reporting center founded by the Asian Pacific Policy and Planning Council, has received more than 1,800 reports of pandemic-fueled harassment or violence in 45 states and Washington, D.C. “It’s not just the incidents themselves, but the inner turmoil they cause,” says Haruka Sakaguchi, a Brooklyn-based photographer who immigrated to the U.S. from Japan when she was 3 months old.
Since May, Sakaguchi has been photographing individuals in New York City who have faced this type of racist aggression. The resulting portraits, which were taken over FaceTime, have been lain atop the sites, also photographed by Sakaguchi, where the individuals were harassed or assaulted. “We are often highly, highly encouraged not to speak about these issues and try to look at the larger picture. Especially as immigrants and the children of immigrants, as long as we are able to build a livelihood of any kind, that’s considered a good existence,” says Sakaguchi, who hopes her images inspire people to at least acknowledge their experiences.
Amid the current Black Lives Matter protests, Asian Americans have been grappling with the -anti-Blackness in their own communities, how the racism they experience fits into the larger landscape and how they can be better allies for everyone.
“Cross-racial solidarity has long been woven into the fabric of resistance movements in the U.S.,” says Sakaguchi, referencing Frederick Douglass’ 1869 speech advocating for Chinese immigration and noting that the civil rights movement helped all people of color. “The current protests have further confirmed my role and responsibility here in the U.S.: not to be a ‘model minority’ aspiring to be white-adjacent on a social spectrum carefully engineered to serve the white and privileged, but to be an active member of a distinct community that emerged from the tireless resistance of people of color who came before us.”
Justin Tsui
“I didn’t think that if he shoved me into the tracks I’d have the physical energy to crawl back up,” says Tsui, a registered nurse pursuing a doctorate of nursing practice in psychiatric mental health at Columbia University. Tsui was transferring trains on his way home after picking up N95 masks when he was approached by a man on the platform.
The man asked, “You’re Chinese, right?” Tsui responded that he was Chinese American, and the man told Tsui he should go back to his country, citing the 2003 SARS outbreak as another example of “all these sicknesses” spread by “chinks.” The man kept coming closer and closer to Tsui, who was forced to step toward the edge of the platform.
“Leave him alone. Can’t you see he’s a nurse? That he’s wearing scrubs?” said a bystander, who Tsui says appeared to be Latino. After the bystander threatened to record the incident and call the police, the aggressor said that he should “go back to [his] country too.”
When the train finally arrived, the aggressor sat right across from Tsui and glared at him the entire ride, mouthing, “I’m watching you.” Throughout the ride, Tsui debated whether he should get off the train to escape but feared the man would follow him without anyone else to bear witness to what might happen.
Tsui says the current antiracism movements are important, but the U.S. has a long way to go to achieve true equality. “One thing’s for sure, it’s definitely not an overnight thing—I am skeptical that people can be suddenly woke after reading a few books off the recommended book lists,” he says.“Let’s be honest, before George Floyd, Breonna Taylor and Ahmaud Arbery, there were many more. Black people have been calling out in pain and calling for help for a very long time.”
. . . .
************************
Read the other nine profiles and see Haruka Sakaguchi’s great photography at the link.
Racism, hate, cruelty, ignorance, dehumanization, inequality, and incompetence are the planks of Trump’s re-election “platform.”
This November, vote like your life depends on it! Because it does!
“Substantial evidence does not support the BIA’s determination that Petitioner failed to meet her burden of proof under CAT that she would more likely than not be tortured, with the consent or acquiescence of a public official, if returned to Mexico. The BIA reached its determination by misapplying our precedents regarding acquiescence of a public official and regarding the possibility of safe relocation, as well as by making or affirming factual findings that are directly contradicted by the record. Contrary to the BIA’s determination, we hold that the existing record compels the conclusion that Petitioner has met her burden under CAT. … the record also includes extensive evidence that LGBTQ individuals are subject to a heightened risk of torture throughout Mexico. Considering all relevant evidence, we conclude that the record compels the conclusion that petitioner has met her burden of proof to establish that it is more likely than not that she will suffer future torture if removed to her native country. … We grant the petition and remand for the agency to grant deferral of removal pursuant to CAT because the record compels the conclusion that Petitioner will more likely than not be tortured if she is removed to Mexico.”
One of the best things about this case is that obviously frustrated by the BIA’s “malicious incompetence” and basically contemptuous treatment of binding Circuit precedent, the Court took the unusual step of granting the CAT application outright. Often, cases are remanded to the BIA for useless “redos.” Not only can they get lost on EOIR’s totally out of control docket of 1.4 million+ cases, but that gives the BIA another undeserved chance to concoct some bogus rationale to screw the respondent.
It’s past time for more courts to treat EOIR as the hostile “justice free zone” it has become under Sessions and now Barr. The absolute disaster at the DOJ under Barr was on full, ugly display before the House this week. Courts must treat the DOJ as the unethical, biased, renegade organization that it really is rather than pretending that it still performs any legitimate functions under our
Constitution.
The Supremes might feign ignorance of the Trump regime’s institutionalized racist assault on migrants, particularly those seeking protection. But, some of the lower Federal Courts finally are catching on to what’s happening here. How is this type of systemic, illegal, incompetent, and unethical performance by Billy Barr’s wholly-owned “courts” that are not “courts” at all deemed acceptable? People’s lives are at risk!
Three days after President Trump took his re-election campaign to a construction site of his border wall in Arizona, a federal appeals court ruled Friday that he had defied Congress’ constitutional authority over federal spending by redirecting $2.5 billion in military funds to build 130 miles of barriers in California, Arizona and New Mexico.
Congress appropriated the funds for military pay, weapons and other Defense Department purposes, and never authorized Trump to spend them on wall construction, the Ninth U.S. Circuit Court of Appeals in San Francisco said in a pair of 2-1 rulings.“Funding for the wall had been denied by Congress,” and the Trump administration “lacked independent constitutional authority to authorize the transfer of funds,” said Chief Judge Sidney Thomas, joined by Judge Kim Wardlaw. Both were appointed by President Bill Clinton.
Judge Daniel Collins, a Trump appointee, dissented from both decisions. He said the military funds were legally transferred and also that the plaintiffs — California and 15 other states, the Sierra Club and and an advocacy group for border communities — had no right to sue over the alleged violation of congressional spending powers.
Although the appeals court upheld a federal judge’s injunction against construction of the wall segments, the ruling did not halt construction. The Supreme Court voted 5-4 last July to allow the work to continue while the case proceeded. Its brief, unsigned decision said the administration “has made a sufficient showing at this stage that the plaintiffs have no cause of action” — that is, that they had not shown direct harm from the construction that would entitle them to challenge it in court.
The appeals court majority reached a different conclusion, citing the plaintiffs’ claims that the wall was harming the environment and wildlife at the border and the states’ ability to enforce their own environmental laws. Similar issues are pending before the same panel in a case over $3.6 billion for additional wall segments, and the dispute could soon return to the high court.
. . . .
***************
Read the rest of the article at the link.
The Supreme’s majority appear to be in Trump’s pocket on this one. So, the fraud, waste, abuse, and mindless environmental destruction is likely to continue until we get regime change.
Federal Judge Orders U.S. To Release Migrant Children During Pandemic
Children held for more than 20 days at certain ICE-run detention centers should be released, decided a U.S. District Judge.
AP – Nomaan Merchant
HOUSTON (AP) — A federal judge on Friday ordered the release of children held with their parents in U.S. immigration jails and denounced the Trump administration’s prolonged detention of families during the coronavirus pandemic.
U.S. District Judge Dolly Gee’s order applies to children held for more than 20 days at three family detention centers in Texas and Pennsylvania operated by U.S. Immigration and Customs Enforcement. Some have been detained since last year.
Citing the recent spread of the virus in two of the three facilities, Gee set a deadline of July 17 for children to either be released with their parents or sent to family sponsors.
The family detention centers “are ‘on fire’ and there is no more time for half measures,” she wrote.
In May, ICE said it was detaining 184 children at the three detention centers, which are separate from U.S. Department of Health and Human Services facilities for unaccompanied children that were holding around 1,000 children in early June. The numbers in both systems have fallen significantly since earlier in the Trump administration because the U.S. is expelling most people trying to cross the border or requiring them to wait for their immigration cases in Mexico.
Gee oversees a long-running court settlement governing the U.S. government’s treatment of immigrant children known as the Flores agreement. Her order does not directly apply to the parents detained with their children.
But most parents last month refused to designate a sponsor when ICE officials unexpectedly asked them who could take their children if the adults remained detained, according to lawyers for the families. The agency said then it was conducting a “routine parole review consistent with the law” and Gee’s previous orders.
*********************
Read the rest of the story at the link.
The bad news:The evil masterminds of these “crimes against humanity,” Trump, Miller, Sessions, Barr, Wolf, and a host of other dangerous child abusers remain at large. Most are still on the Federal payroll and one actually has the audacity to run for a public office for which he is totally unqualified. Hopefully, they will be made to answer for their crimes at some later point in time.
The Supreme Court just issued a ruling with sweeping, immediate implications for the immigration enforcement system, potentially allowing the Trump administration to move forward in deporting tens of thousands of immigrants living in the US with little oversight.
The case, Department of Homeland Security v. Thuraissigiam, concerns immigration officials’ authority to quickly deport migrants who don’t express fear of returning to their home countries, which would make them eligible for asylum. The process, first enacted in 1996 and known as “expedited removal,” takes weeks, rather than the typical years it can take to resolve a full deportation case, and does not involve a hearing before an immigration judge or offer immigrants the right to a lawyer.
In a 7-2 decision, the justices found Thursday that newly arrived immigrants don’t have the right to challenge their expedited removal in federal court, which advocates claim is a necessary check on immigration officials to ensure that migrants with credible asylum claims aren’t erroneously turned away and have access to a full and fair hearing.
Until recently, only a small number of immigrants who had recently arrived in the US could be subjected to expedited removal. But President Donald Trump has sought to vastly expand US Immigration and Customs Enforcement’s power to use expedited removal as a means of deporting any immigrant who has lived in the US for up to two years, potentially affecting an estimated 20,000 people.
Thursday’s decision therefore allows Trump to significantly scale up his immigration enforcement apparatus while going largely unchecked.
“Trump has made it very clear that ICE has the authority to use this process throughout the entire country,” Kari Hong, a professor at Boston College Law School, said. “They could start stopping anyone at anytime on any suspicion that they have committed an immigration violation and deport them. I don’t think it’s unreasonable [to predict] that ICE agents will target dark-skinned individuals.”
. . . .
******************
Read the rest of Nicole’s clear and understandable analysis at the link.
Writing ability, intellectual honesty, commitment to Due Process, belief in equal justice for all, opposition to institutional racism, and fidelity to human values, as well as “real life” understanding of what it means to have your life and human dignity ground to mush in Trump’s illegal “deportation machine” obviously are in short supply among today’s Supremes. Disgraceful!
So, according to these seven cloistered dudes, somebody on trial for her or his life, the highest possible stakes in any proceeding in America, civil or criminal, can have her or his fate determined by Trump employees who serve as policeman, prosecutor, judge, jury, and executioner. No access to a “fair and impartial decision-maker” as required by the Constitution. No checks for errors, abuses, or mistakes that could result in a vulnerable individual being sent to face persecution, torture, and/or death in a land they fled because their life was in danger. This notwithstanding that Federal Courts find egregious errors in application of basic legal concepts from Trump’s immigration adjudicators almost every day! This is “due process” because Congress said it was! What complete deadly nonsense and sophistry! Really, how do the purveyors and enablers of such atrocious, disingenuous, and illegal attacks on humanity sleep at night.
Let’s be clear. There is no legitimate purpose in a supposedly independent, life-tenured judiciary without the courage to hold both the Executive and the Congress accountable for equal justice under law as required by our Constitution. If they are going to act like Border Patrol Agents in robes, send them down to the border and let them be part of the killing fields. Got innocent blood on your hands, might as well have it on your robes too!
The formula is very simple: Better Executive + Better Legislators + Better Judges = Equal Justice For All. The exceptionally poor performance of the Supremes in insuring racial justice in America, indeed their intentional undermining of it in voting rights, civil rights, immigration, and other areas, is a major contributor to the continuing institutional racism that is on the verge of ripping our nation apart. The Supreme’s latest abrogation of the Constitution stokes racial injustice in America and endangers our nation’s security and future.
How many Hispanic American citizens will be illegally “expeditiously removed” to Mexico by DHS Enforcement before the nation wakes up!We need better judges! Judges who will stop intentionally ignoring the clear constitutional requirements for Due Process, Equal Justice, and ending institutionalized racism in America. Judges who will not feign ignorance of the grotesque human suffering they wrongfully enable. Judges who will stand up for the rule of law against an overtly racist Executive. Judges who will stop enabling, participating in, and encouraging further “crimes against humanity!”
Also, every Federal Judge should have 1) demonstrated legal and practical knowledge of human rights law and what really happens to individuals in our immigration “justice” system; and 2) a course in writing cogent English and applying simple logic from Nicole.
This November, vote like your life and the future of our nation depend on it. Because they do!
Due Process Forever! Supremes that don’t believe in equal justice under law, never!
“Harmanto Tanusantoso and Wiwik Widayati (collectively, Petitioners) petitioned for review after the Board of Immigration Appeals (BIA) denied their third motion to reopen, in which they alleged a change of country conditions for Christians in Indonesia. Petitioners argue that the BIA abused its discretion in denying their motion to reopen because it (1) failed to address their primary evidence of changed country conditions and (2) incorrectly concluded that their failure to submit a new asylum application with their motion made the motion procedurally deficient under 8 C.F.R. § 1003.2(c)(1). We agree with Petitioners. We find that the BIA’s one-and-a-half-page order failed to account for relevant evidence of changed country conditions and hold that § 1003.2(c)(1) does not require the submission of a new asylum application for motions such as this one. We therefore GRANT the petition for review, VACATE the BIA’s decision, and REMAND for explicit consideration of Petitioners’ changed country conditions evidence.”
[Hats off to WILLIAM W. CASTILLO GUARDADO and Dan R. Smulian, on the brief, Catholic Charities Community Services, New York, NY!]
********************
DISCONNECT: Remanding a case for a fair determination by an unconstitutional “court” system designed by Billy the Bigot to reject valid asylum claims.
WHAT SHOULD HAPPEN: “Remand” the case to a U.S. Magistrate Judge or a court-appointed Special Master with asylum expertise to give the respondent a fair determination on the motion to reopen, and if the case is reopened, to hear the case on the merits. Any appeals should go directly to the Court of Appeals, bypassing the unconstitutional and unqualified BIA.
To keep sending botched cases back to an unconstitutional and unqualified “court” system that is not a “court” at all is a complete waste of time and an abuse of taxpayer resources. It’s also grossly unfair to individuals who have to keep subjecting themselves to the abuses of “Billy the Bigot” and his illegal “designed to deny” Star Chambers! Additionally, it’s ethically questionable, given the overwhelming evidence of unfairness and dysfunction now in the public record.
If not, why not? If so, what’s the excuse for futile and inappropriate remands to this unconstitutional and dysfunctional “non-system?” We need Federal Judges at all levels who “get off the treadmill” and start enforcing the Constitutional requirements of due process, fundamental fairness, impartial decision-makers, and equal justice for all.
Yes, America is suffering from near-total institutional breakdown and failure under the Trump’s kakistocracy and the institutional weaknesses he has exposed and exploited. But, that doesn’t excuse the failure of those who have the power to fix the system pretending like this is “normal.” It isn’t!
The Trump Administration has repeatedly acted to damage our country’s asylum laws. Its latest move, expressed in 161 pages of proposed regulations, does so with a sledgehammer. The proposal claims that “as an expression of a nation’s foreign policy, the laws and policies surrounding asylum are an assertion of a government’s right and duty to protect its own resources and citizens, while aiding those in true need of protection from harm.” Note how “aiding those in true need of protection from harm” comes last. The proposal supports the preceding statement with a case that not only had nothing to do with asylum, but predated by eight years the enactment of the 1980 Refugee Act, which continues to serve as our country’s law of asylum.
It was necessary to reach back so far because the Refugee Act actually stands for the opposite proposition, placing the protection of those in need above foreign policy considerations. The Refugee Act replaced our Cold War-influenced refugee preferences with an obligation to provide protection to those from any country fearing persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion.
The Department of Justice tried to limit the impact of this monumental change at its outset by interpreting the new legal standard as restrictively as possible. In 1987, the Supreme Court rejected the Department’s interpretation of the term “well-founded fear,” finding that the meaning the Department applied to the term was not the one intended by Congress. The Court found it clear that the primary purpose of Congress was to bring U.S. law into conformity with the 1967 Protocol on the Status of Refugees. It therefore looked for guidance to UNHCR and legal scholars, and concluded that the standard passed by Congress allowed for as little as a ten percent chance of persecution in order to merit asylum.
More than three decades later, District Court Judge Emmet G. Sullivan put a stop to the Department’s attempt to exclude victims of domestic violence and gang violence from asylum protection at the credible fear stage. In a lengthy, detailed decision whose reasoning the Sixth Circuit recently adopted for full asylum determinations, the court reiterated that Congress, and not the Attorney General, creates our asylum laws, and that Congress intended for those laws to conform to the Protocol’s more expansive view.
It was because of that more expansive view that the Protocol, and its predecessor, the 1951 Convention on the Status of Refugees, avoided the type of strict definitions the proposed regulations seek to impose. One renowned scholar explained the drafters’ intent “to introduce a flexible concept which might be applied to circumstances as they might arise; or in other words, that they capitulated before the inventiveness of humanity to think up new ways of persecuting fellow men.”1 It is this built-in flexibility that the latest proposal takes exception to.
Of course, it is still Congress, and not the executive branch, that enacts our asylum laws. And should the present proposal become a final rule before this administration is done, it will be the reassertion of that reality by the courts that will save those seeking refuge here.
I plan to address the different sections of the proposals in installments. I begin with the proposal to redefine “political opinion.”
The last few months have taught us that, under the Trump Administration, everything is political. Even the decision to wear a mask and self-isolate out of consideration to our neighbors has been cast as an expression of political opinion. The virus itself was first depicted as a Democratic hoax; once its existence could no longer be denied, it had to be given a nationality and portrayed as part of a foreign plot. This is a virus we are talking about.
The Administration saw political allies in armed and angry mobs who somehow portrayed temporary rules designed to protect us all by slowing the spread of disease as a denial of their basic human rights. And then the same administration branded as political enemies those protesting the very real and systemically ingrained deprivation of their basic human rights solely because of the color of their skin. The irony is not lost in this very same government that politicizes everything now imposing a very narrow, strict view of what can be called political opinion for asylum purposes.
Regulations may define or clarify laws, but may not rewrite them. And the courts need only defer to the Department’s interpretation where the language of the law itself is ambiguous. Courts may go to great lengths and employ all tools of construction at their disposal before deeming a statute ambiguous.
Looking to the Refugee Act, the courts will find that in the 40 years since its passage, the only amendment relating to its definition of political opinion expanded the meaning of that term. In 1996, the Republican-controlled Congress amended the refugee definition to read that coercive abortion and sterilization procedures constitute persecution on account of the victim’s political opinion. Neither the wording of the statute nor its application by the BIA require any inquiry into the motives or beliefs of the victim of the coercive family planning policy. In other words, a woman need not declare in an online manifesto that she will become pregnant as a statement of protest against an oppressive government’s policy. One at risk of abortion for any pregnancy by law fears persecution on account of her political opinion.
The proposed regulations acknowledge this. However, they fail to reconcile how the rest of the proposed language on this topic, the first attempt ever to restrict by either statute or regulation what may constitute a political opinion, is consistent with Congress’s adoption of such an expansive view of political opinion to allow even an accidental pregnancy to satisfy the term’s definition.
The Department provides a weak justification for interjecting itself into the matter in the first place, claiming that the evolving state of case law makes it just too difficult for immigration judges to apply the law consistently. Any pretense of providing clarification vanishes upon attempting to decipher the proposed guidance on the topic. Under the proposed rule, immigration judges, asylum officers, and the BIA will be precluded from granting asylum based on a political opinion “defined solely by generalized disapproval of, disagreement with, or opposition to criminal, terrorist, gang, guerilla, or other non-state organizations absent expressive behavior in furtherance of a cause against such organizations related to efforts by the state to control such organizations or behavior that is antithetical to or otherwise opposes the ruling legal entity of the state or a legal sub-unit of the state.” What could be clearer than that?
As its sole example of the confusion that purportedly warrants the administration stepping in, the proposal cites two recent decisions. The first (which we can assume the administration doesn’t like) is the Second Circuit’s recent decision in Hernandez-Chacon v. Barr, holding that in resisting rape by an MS-13 member, the asylum applicant expressed “her opposition to the male-dominated social norms in El Salvador and her taking a stance against a culture that perpetuates female subordination and the brutal treatment of women.”
The other case referenced was a 15 year old Fourth Circuit decision, Saldarriaga v. Gonzales, which the Department describes as holding that “disapproval of a drug cartel is not a political opinion.” In its attempt to demonstrate that immigration judges sitting in the jurisdictions of the Second and Fourth Circuits might reach different results, the Department conveniently omits a much more recent Fourth Circuit decision, Alvarez Lagos v. Barr, which found unrefuted evidence that the Barrio 18 gang imputed an anti-gang political opinion to the asylum-seeker’s nonpayment of extortion and flight to the U.S. Including that decision would have cleared up the purported confusion used to justify the new rules, so the proposal simply ignored it.
But even accepting the Department’s view that different circuits might take different views on this topic, and that somehow, it’s the responsibility of someone like Stephen Miller, as opposed to the Supreme Court, to resolve such conflict, would applying that garbled definition cited above (and no, it does not become clearer with repeated reading) change the outcome of Hernandez-Chacon? Because in the view of the court, the asylum applicant in that case did not simply express a generalized disapproval of a gang. Her opposition to systemic injustice perpetuating brutality against women, who are viewed as a subordinate class, is an expression of something much larger, in which the government is implicated.
Grasping at additional straws, the Department also pointed to one sentence in a BIA decision from 1996, Matter of S-P-, stating the need in that case to examine whether the persecutors were motivated at least in part by their belief that the asylum applicant held political views “antithetical to the government.” This, according to the administration, is proof that only views antithetical to the government can be political opinion. However, in that case, the asylum seeker had been arrested, detained for six months, interrogated, and tortured by the government, specifically, government soldiers. So in determining whether such persecution was on account of the applicant’s political opinion, in that particular case, the Board obviously focused on whether those soldiers thought the victims views were anti-government. The sentence in no way intended to state that under all circumstances must political opinion be one that is directly aimed at the government. By analogy, the BIA didn’t say that only women can be members of particular social groups because in one gender-based case, it analyzed whether the social group elements were “fundamental to the individual identity of a young woman.” See Matter of Kasinga, 21 I&N Dec. 357, 366 (BIA 1996). The point is, the Board used the language necessary to decide the case before it, and for the Department to now pretend otherwise is disingenuous.
Note:
Atle Grahl-Madsen, The Status of Refugees in International Law 193 (1966).
Copyright 2020 Jeffrey S. Chase. All rights reserved.
Republished with permission.
*****************
A nation’s inhumanity to others, allowing unqualified individuals like Stephen Miller to make policy, and moral cowardice will have severe future consequences.
