"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.
On Title 42, the Supreme Court rules for a partisan agenda
COVID-19 is no reason to shut out migrants. Yet it’s used as a political pretext.
By Erwin Chemerinsky
The Supreme Court’s ruling last week to keep in place a Trump-era immigration order can only be understood as five conservative justices advancing a conservative political agenda, in violation of clear legal rules.
Without giving reasons or any explanation, the court reversed lower court decisions that allowed the Biden administration to lift a restriction that prevents asylum seekers at the border from entering the country, imposed early during the COVID-19 pandemic.
The federal law — referred to as Title 42 — permits the Centers for Disease Control and Prevention to prohibit people from coming into the U.S. to avert the spread of a “communicable disease” present in a foreign country.
.. . .
In November, U.S. District Judge Emmet Sullivan, in Washington, D.C., found that the continued use of Title 42 was “arbitrary and capricious in violation of the Administrative Procedure Act.” He ruled that the expulsion policy was no longer justified based in light of the present state of the pandemic, which includes widely available vaccines, treatments and increased travel in the United States.
Nineteen states with Republican attorneys general, however, oppose that ruling and sought the right to appeal to the U.S. Court of Appeals for the District of Columbia Circuit. They were not parties to the lawsuit in the District Court and the law generally does not allow parties to get into a case for the first time at the appeals level. On Dec. 16, the federal Court of Appeals, following its well-established law, refused to allow the states to intervene. The states then sought Supreme Court review of that decision.
On Dec. 27, in Arizona vs. Mayorkas, the Supreme Court, in a 5-4 ruling, not only said that it would hear the states’ appeal, but that it would require that the Biden administration continue to use Title 42 to expel migrants.
The court’s action makes no sense for several reasons. Title 42 provides the government authority to close the borders only if a public health crisis involving a communicable disease requires it. No one in the litigation disputes that COVID no longer warrants restrictions on immigration.
. . . .
The states are intervening not because they believe that a continuing public health emergency requires Title 42, but because they want to use it as a pretext to close the borders.
In fact, in another case now pending on the Supreme Court’s docket — on whether the Biden administration’s student loan forgiveness program is justified as a response to the pandemic emergency — 12 of the states in the Title 42 case argued in their brief that “COVID-19 is now irrelevant to nearly all Americans.”
The Supreme Court’s order is senseless for another reason: The only issue before the court is whether the states can intervene in the case. It is not about whether the District Court erred in ending the use of Title 42 to expel migrants. Even if the states were allowed to join the case, they can’t plausibly make the case that COVID concerns still justify immigration expulsions at this point.
. . . .
The five conservative justices based their decision not on the purpose of Title 42, which is to stop the spread of a communicable disease, but on their partisan agreement with conservatives on immigration issues. We should expect better of the court than that.
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Read Dean Chemerinsky’s full article at the link. Having a High Court, with life tenure, where a majority of the Justices enter “senseless orders” — targeting some of the most vulnerable and abused in our society who also happen to be predominantly individuals of color — is in and of itself senseless — from a standpoint of preserving our democracy!
The action of the five GOP Supremes is beyond outrageous! The NDPA CAN turn this gross right-wing minority abuse of our judicial system around!Likely not in my lifetime!
But, you need to keep pushing Dems to pay attention to judicial appointments and start insisting on meaningful professional expertise in immigration and actual experience representing individuals in Immigration Court as a basic requirement to serve as a Justice. Also we need an Article I Immigration Court and NO MORE Attorneys General without proven “grass roots” immigration and human rights experience!
Immigration is “where the action is” on the fight to save American democracy! If tone-deaf and spineless Dem politicos keep “running” from the key issue in American law and society, perhaps it’s time for true liberals, progressives, and constitutional humanitarian realists to “run” from the Dem Party!
This Supreme farce also reinforces the disgraceful failure of Garland and the Dems to reform the “Supreme Court of Immigration” — the BIA — by replacing enforcement-tilted Trump holdovers with practical scholar, expert, progressive judges committed to realizing long-denied due process, fundamental fairness, and the best interpretations of immigration and refugee laws! Dems control an important Federal Appellate body and are too clueless and afraid to do the right thing — even with the rule of law, racial justice, and human lives on the line!
CROTONE, Italy — On a continent that has spent years trying to cut off undocumented immigration — using fences, surveillance, financial incentives and sometimes even brute force — the close-the-door strategy is faltering
Migration across the Mediterranean has crested to the highest level in five years. New nationalities, most notably from Egypt, have joined the stream of people seeking escape to Europe. And hard-line border policies are merely driving smugglers to adapt: Soon after Greek authorities instituted a practice of harsh pushbacks, boats departing Turkey began charting a longer route — bypassing Greece and heading instead to Italy’s Calabrian coast, an area that used to see almost no arrivals.
“Here comes another,” a law enforcement official at the port of Crotone said one recent morning, watching a vessel with 80 people come into view, just four hours after the arrival of a boat with 81 others.
The European Union’s desire to obstruct migration on multiple fronts was reflected in a collection of deals cobbled together in the aftermath of a 2015 mass-scale wave from Africa and the Middle East. And, for a while, the strategy appeared to be working: Mediterranean crossings dipped dramatically. The issue lost political primacy, depriving nationalist parties of kindling.
But an increase in arrivals this year is showing the limits of a Fortress Europe strategy — and reviving the highly contentious issue of how to handle and divvy up those who make it to the E.U. and its borderless travel zone.
“Europe’s expectations were based on a wrong assumption — that mobility across the Mediterranean could be stopped or limited, so it would no longer be politically relevant,” said Roberto Cortinovis, a migration specialist at the Center for European Policy Studies. “And that is impossible.”
. . . .
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Some of the same things are happening here. Nativist/restrictionists, largely, but not exclusively, from the GOP, keep pushing failed “deterrence only” enforcement policies. And, the USG keeps “investing” in them despite decades of proven failure and deadly human results.
Ironically, today should have been the end of the illegal and abominable Title 42 charade. But, as with past fictional “deadlines” for termination, it didn’t happen.
Just to put Lee’s outrageous abuse of the law and human rights in perspective, remember that U.S. District Judge Emmet Sullivan recently concluded, on a voluminous record, that the use of Title 42 to deny migrants’ legal rights at the border was: 1) an illegal pretext from the beginning, and 2) causes “stomach churning” dire, irreparable harm, including rape, torture, and death, to legal asylum seekers. Essentially, nativist politicos like Lee are trying to force the Biden Administration to commit even more egregious human rights violations — on top of the hundreds of thousands, perhaps millions, they have already committed by enforcing Title 42 over the past two years.
While Lee’s scurrilous and totally misguided amendment is likely to fail, another almost equally bad one, sponsored by Sen. Sinema (I-AZ) to extend Title 42 indefinitely (till a “better plan” is in effect, which will never happen, particularly if the GOP has anything to say about it), is also up for a vote. “Lost in the shuffle” is the simple fact that we have existing laws that could and should be used to timely grant refugee to those legally qualified while expeditiously and summarily removing those with no credible claim. That the Biden Administration has failed to develop a viable plan for re-implementing existing law (which had been in effect for decades before being illegally abrogated by Trump) over the past two years should not be confused with impossibility!
Far from it, as many experts have pointed out, illegally “closing” ports of entry to asylum seekers has made unauthorized entry the “sole and exclusive” way for asylum seekers to exercise their rights! Yet, nativist politicos, the media, and even the Biden Administration ignore or mister present this truth.
As the International Organization on Migration has said, ““Migration is inevitable, necessary and desirable.” https://www.iom.int/news/migration-inevitable-necessary-and-desirable-opening-exhibition-iom-hague. It can be controlled and channeled with wise, realistic, and humane decisions. But, it won’t be stopped by walls, prisons, deportations, racist nationalistic rhetoric, militarization of borders, or cruel and inhumane laws and restrictionist policies.
Or, as I have said before, “We can diminish ourselves as a nation, but it won’t stop human migration.” Sure, the U.S. needs comprehensive, robust immigration reform that recognizes the inevitably and mutual benefits of human migration. But, particularly with a GOP House, it’s not on the horizon.
In the meantime, it is incumbent on the Biden Administration to make existing laws and policies work to timely, efficiently, and humanely screen refugees and asylum seekers at our borders. Those who qualify should be admitted in a reasonable period of time rather than aimlessly sent to wander the U.S. waiting for interviews from USCIS or hearings from EOIR that might never happen because of mismanagement and lack of vision in the current system. Those who don’t have credible claims should be subject to the summary removal procedures of the current law.
That the Biden Administration has, to date, lacked the competence, vision, and expertise to make the existing laws work in an acceptable manner is a shame. Ultimately, it’s one they won’t be able to “run away from” no matter how hard they try!
A HOLIDAY MESSAGE FROM US POLITICOS OF BOTH PARTIES TO LEGAL ASYLUM SEEKERS: “Suffer & Die!” Albrecht Dürer, Public domain, via Wikimedia Commons
Here are some relevant portions of Judge Sullivan’s opinion in Huisha-Huisha v. Mayorkas, D.D.C., Nov. 22, 2022, to keep in mind as the bogus claims and misleading reporting continue to mushroom ahead of the Dec. 22 (Wednesday) date for re-establishing the rule of law @ our Southern Border:
It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals, particularly when those actions included the extraordinary decision to suspend the codified procedural and substantive rights of noncitizens seeking safe harbor. See Huisha-Huisha, 27 F.4th at 724-25 (describing the “procedural and substantive rights” of aliens, such as asylum seekers, “to resist expulsion”); cf. Regents, 140 S. Ct. at 1914-15 (holding that agency should have considered the effect rescission of DACA would have on the program’s recipients prior to the agency making its decision). As Defendants concede, “a Title 42 order involving persons will always have consequences for migrants,” Defs.’ Opp’n, ECF No. 147 at 42, and numerous public comments during the Title 42 policy rulemaking informed CDC that implementation of its orders would likely expel migrants to locations with a “high
29
probability” of “persecution, torture, violent assaults, or rape.” See Pls.’ Mot., ECF No. 144-1 at 27; see also id. at 27- 28 (listing groups subject to expulsion under Title 42, including “survivors of domestic violence and their children, who have endured years of abuse”; “survivors of sexual assault and rape, who are at risk of being stalked, attacked, or murdered by their persecutors in Mexico or elsewhere”; and “LGBTQ+ individuals from countries where their gender identity or sexual orientation is criminalized or for whom expulsion to Mexico or elsewhere makes them prime targets for persecution” (citing AR, ECF No. 154 at 28-29, 47, 153) (cleaned up)). It is undisputed that the impact on migrants was indeed dire. See, e.g., Huisha-Huisha, 27 F.4th at 734 (finding Plaintiffs would suffer irreparable harm if expelled to places where they would be persecuted or tortured).
The CDC “has considerable flexibility in carrying out its responsibility,” Regents, 140 S. Ct. at 1914, and the Court is mindful that it “is not to substitute its judgment for that of the agency,” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). But regardless of the CDC’s conclusion, its decision to ignore the harm that could be caused by issuing its Title 42 orders was arbitrary and capricious.
30
3. The Title 42 Policy Failed to Adequately
Consider Alternatives
Plaintiffs also argue that the Title 42 policy is arbitrary and capricious because CDC failed to adequately consider alternatives and the policy did not rationally serve its stated purpose. See Pls.’ Mot., ECF No. 144-1 at 10-11.
(29-31)
However, despite the above, Defendants have not shown that the risk of migrants spreading COVID-19 is “a real problem.” District of Columbia v. U.S. Dep’t of Agric., 444 F. Supp. 3d 1, 27 (D.D.C. 2020) (citing Nat’l Fuel Gas Supply Corp. v. FERC, 468 F.3d 831, 841 (D.C. Cir. 2006)). “Professing that an agency action ameliorates a real problem but then citing no evidence demonstrating that there is in fact a problem is not reasoned decisionmaking.” Id. (cleaned up); see Huisha-Huisha, 27 F.4th at 735 (“[W]e would be sensitive to declarations in the record by CDC officials testifying to the efficacy of the § 265 Order. But there are none.”). As Plaintiffs point out, record evidence indicates that “during the first seven months of the Title 42 policy, CBP encountered on average just one migrant per day who tested positive for COVID-19.” Pls.’ Mot., ECF No. 144-1 at 22 (citing Sealed AR, ECF No. 155-1 at 23). In addition, at the time of the August 2021 Order, the rate of daily COVID-19 cases in the United States was almost double the incidence rate in Mexico and substantially higher than the incidence rate in Canada. See 86 Fed. Reg. at 42831 (noting 137.9 daily cases per 100,000 people in the United States, compared to 68.6 in Mexico and 8.0 in Canada). The lack of evidence regarding the effectiveness of the Title 42 policy is especially egregious in view of CDC’s previous conclusion that “the use of quarantine and travel restrictions, in the absence of evidence of their utility, is detrimental to efforts to combat the spread of communicable disease,” Control of Communicable Diseases, 82 Fed.
39
Reg. 6890, 6896; as well as record evidence discussing the “recidivism” created by the Title 42 policy, which actually increased the number of times migrants were encountered by CBP, see AR, ECF No. 154 at 45 (commenter describing recidivism); AR, ECF No. 155-1 at 4 (January/February 2021 statistics showing nearly 40% of family units DHS encountered in January-February 15, 2021 were migrants who had attempted to cross at least once before).
(39-40)
Particularly in view of the harms Plaintiffs face if summarily
expelled to countries they may be persecuted or tortured, the Court
42
therefore vacates the Title 42 policy. Cf. Nat. Res. Def. Council v. EPA, 489 F.3d 1250, 1262–64 (D.C. Cir. 2007) (Randolph, J., concurring) (“A remand-only disposition is, in effect, an indefinite stay of the effectiveness of the court’s decision and agencies naturally treat it as such.”).
(42-43)
Meanwhile, Plaintiffs have presented evidence demonstrating that the rate of summary expulsions pursuant to the Title 42 policy has nearly doubled since September 2021. See Pls.’ Mot., ECF No. 144-1 at 30 (“At the time of this Court’s original decision, approximately 14% of
45
families encountered at the southwest border were being summarily expelled pursuant to the Title 42 policy. . . . Now, the rate of expulsions is nearly twice as high, reaching 27%.”); see also Pls.’ Reply, ECF No. 149-1 at 31 (“[I]n the month of July 2022 alone, 9,574 members of family units encountered at the southern border were summarily expelled pursuant to the Title 42 policy.”). And “[i]n Mexico alone, recorded incidents” of “kidnapping, rapes, and other violence against noncitizens subject to Title 42” have “spiked from 3,250 cases in June 2021 to over 10,318 in June 2022.” Pls.’ Mot., ECF No. 144-1 at 30 (citing Neusner Decl., ECF No. 118-4; Human Rights First, The Nightmare Continues: Title 42 Court Order Prolongs Human Rights Abuses, Extends Disorder at U.S. Borders, at 3-4 (June 2022)). Accordingly, even if the Court accepts Defendants’ unsupported statement that the “situation for class members has improved,” the evidence demonstrates that Plaintiffs continue to face irreparable harm that is beyond remediation. See Huisha-Huisha, 27 F.4th at 733 (“[T]he record is replete with stomach-churning evidence of death, torture, and rape.”).
N
(45-46)
Because “there is an overriding public interest . . . in the general importance of an agency’s faithful adherence to its statutory mandate,” Jacksonville Port Auth. v. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977); the Court concludes that an injunction in this case would serve the public interest, see A.B.-B. v. Morgan, No. 20-cv-846, 2020 WL 5107548, at *9 (D.D.C. Aug. 31, 2020) (“[T]he Government and public can have little interest in executing removal orders that are based on statutory violations . . . .”).
Moreover, Defendants do not contend that issuing a
permanent injunction would cause them harm or be inconsistent
with the public health. Indeed, “CDC recognizes that the current
public health conditions no longer require the continuation of
47
the August 2021 order,” Defs.’ Opp’n, ECF No. 147 at 44; see also Pls.’ Mot., ECF No. 144-1 at 30, in view of the “less burdensome measures that are now available,” 87 Fed Reg. at 19944; id. at 19949–50. The parties also do not dispute that Plaintiffs continue to face substantial harm if they are returned to their home countries, notwithstanding the availability of USCIS screenings. See, e.g., Human Rights First, The Nightmare Continues: Title 42 Court Order Prolongs Human Rights Abuses, Extends Disorder at U.S. Borders, at 3-4 (June 2022). As the Supreme Court has explained, the public has a strong interest in “preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm.” Nken, 556 U.S. at 436.
(47-48)
***********************************
So, when you hear guys like Abbott, Ducey, DeSantis, Manchin, Cuellar, Gonzales, GOP nativist AGs, and the like use this holiday season during which we are supposed to be celebrating messages of hope, faith, mercy, and “goodwill toward men” to extol the virtues of illegal expulsions under Title 42, remember what their are REALLY saying:
“I want the US to continue violating domestic and international laws protecting refugees and asylum seekers, to continue to knowingly violate the human rights and human dignity of asylum seekers, and to place our fellow humans in danger zones where they will suffer stomach-churning episodes of death, torture, and rape. I don’t believe our nation is capable of complying with our duly-enacted laws to protect refugees and asylum seekers that have been in effect since 1981 until 2020 when they were illegally suspended by the Trump Administration using a public health pretext, as found by a Federal Judge. I urge the Biden Administration, which has already illegally expelled hundreds of thousands of migrants with no due process, to continue committing grotesque violations of the law and human rights and to increase the violations so that more men, women, and children will suffer rape, torture, an dearth as a consequence. This is my holiday season message to America and humanity: Peace on earth and goodwill toward all mankind, EXCEPT those seeking legal asylum by applying at our Southern Border. To them: rape, torture, and death without due process!
Title 42 expulsions of asylum seekers are a clear violation of Judeo-Christian ethics. To be advocating for its continuing application at any time, let alone during this season, is the height of hypocrisy; so is characterizing the largely self-inflicted mess at the Southern Border as a “humanitarian emergency” and then proposing to “solve” it by sending legal asylum seekers back to rape, torture, kidnapping, robbery, extortion, and death in Mexico and other nations in turmoil without any type of process to determine whether they have a “credible fear” of persecution, as required by law.
Who would have thought that the Biden Administration would be dumb and treacherous enough to let this neo-Nazi xenophobe and refugee hater “own” human rights “policy” in a Dem Administration? But, it appears they have! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
From Michael Shear & Eileen Sullivan the NY Times:
WASHINGTON — The Biden administration is considering substantial new limits on the number of migrants who could apply for asylum in the United States, according to people familiar with the proposal, which would expand restrictions similar to those first put in place along the border by former President Donald J. Trump.
The plan is one of several being debated by President Biden’s top aides as the country confronts a high number of illegal crossings at the border. It would prohibit migrants who are fleeing persecution from seeking refuge in the United States unless they were first denied safe harbor by another country, like Mexico.
People familiar with the discussions said the new policy, if adopted, could go into effect as soon as this month, just as the government stops using a public health rule that was put in place at the beginning of the coronavirus pandemic by the Trump administration and became a key policy to manage the spike in crossings during Mr. Biden’s tenure. A federal judge has ordered the administration to stop using the health rule on Dec. 21.
But the idea of broadly prohibiting migrants from seeking asylum strikes directly at the heart of decades of American and international law that has shaped the United States’ role as a place of safety for displaced and fearful people across the globe.
. . . .
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Read the complete article at the link.
[U.S. District Judge Emmet ]Sullivan wrote that the federal officials knew the order “would likely expel migrants to locations with a ‘high probability’ of ‘persecution, torture, violent assaults, or rape’ ” — and did so anyway.
“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals,” Sullivan wrote. “It is undisputed that the impact on migrants was indeed dire.”
What part of Judge Sullivan’s very clear ruling on their “crimes against humanity” and knowing violations of U.S. and international law doesn’t the “Biden Administration Clown Show” 🤡 understand? Just follow the asylum law and due process, already! If you can’t do that, resign and let folks who can do the job (of which there are plenty out here in the “real world”) take over and do the job you have been failing at for two years!
In any event, the talent is out here in the private/NGO sector and will resist this latest insult to humanity and degradation of the rule of law and due process that Administration officials are “pondering!” “Studying and deciding whether or not to violate the law (again)?” Sounds like a potential criminal conspiracy to me!
In any event, expert litigators like Lee Gelernt of the ACLU and other NDPA superstars are prepared to “beat the Biden Administration’s brains (if any) out” in court again if they try to implement any more of their illegal and immoral immigration gimmicks!
“If the Biden administration simply substitutes the unlawful and anti-asylum Trump transit ban for Title 42,” Mr. Gelernt said, “we will immediately sue, as we successfully did during the Trump administration.”
The Chair of the Senate Foreign Relations committee was also “not on board” with the Biden Administration’s latest harebrained ideas on diminishing human rights that they have substituted for basic competence over the past two years of disasters, and unforgivable policy screw-ups on immigration, human rights, and racial justice issues:
“If the reported story is true, the Biden administration would further step away from our nation’s commitment to offer refuge to asylum seekers,” Senator Bob Menendez, Democrat of New Jersey and the chairman of the Foreign Relations Committee, said in a statement on Thursday. “I will firmly oppose this misguided attempt to rewrite our asylum laws without congressional approval, just as I firmly opposed the same efforts under President Trump.”
I also have to wonder how Judge Sullivan will react when he learns how Biden Administration officials are using his “reluctantly granted” five weeks of delay in implementing his “cease and desist order.” Instead of, at long last, getting their collective tails in gear to finally put in place a competent legal system for re-establishing legal asylum at the southern border, these disgraceful petty bureaucrats and so-called “policy” officials have been scheming to evade the rule of law and commit yet more “crimes against humanity.”
The NDPA is not going to let them get away with it. Even if it means ripping apart the “so-called Democratic Coalition” going into the 2024 elections!
🇺🇸 Due Process Forever! Tyranny & Stupidity From either Dems or the GOP, never!
American poses with dead Haitian revolutionaries after being killed by US Marine machine gun fire – 10-11-1915.jpg. Past US armed invasions of Haiti to protect our interests haven’t done much to improve the lives of the Haitian people. Public Realm
As Haiti Unravels, U.S. Officials Push to Send in an Armed Foreign Force
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U.S. seeks to prompt armed invasion of Haiti by OTHER countries to protect US from Haitian refugees seeking freedom and a new life! What could possibly go wrong?
Nothing shakes up brave US security officials like some unarmed Black individuals in leaky boats risking their lives to “breathe free” and to contribute to the U.S. economy in the process!
Really! There must be about “two Democrats in the world” who think this crackpot scheme is a good idea. Unfortunately, they are employed by the Biden Administration and in charge of “immigration policy!”
Sorry, Casey, but I have to keep saying it: “Can’t anyone here play this game?” Apparently not!
“Casey Stengel might understand the Biden Administration’s immigration policies. The rest of us not so much.” PHOTO: Rudi Reit Creative Commons
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
Politico: Experts in the immigration field say they’re expecting a stressful and chaotic transition when a court-ordered deadline to end the Trump directive is hit, one that could drive a new rush to the border and intensify GOP criticism. See also States move to keep court from lifting Trump asylum policy.
Reuters: The United States is in talks with Mexico and other countries to facilitate the return of Venezuelan migrants to their homeland, a senior U.S. official said in a call with reporters on Tuesday.
TRAC: The South Texas Family Residential Center in Dilley, Texas, which currently houses single adults (mostly females) has more than doubled the number of individuals it is holding since September. ICE reports this facility run by CoreCivic now has the largest average daily population of detainees (1,562) in the country
CBS: McCarthy also threatened to use “the power of the purse and the power of subpoena” to investigate and derail the Biden administration’s immigration and border policies, saying Republican-led committees would hold oversight hearings near the U.S.-Mexico border.
LexisNexis: “Remand is required in this case because the BIA did not give consideration to all relevant evidence and principles of law, as those have been detailed by this Court’s recent decision in Scarlett v. Barr, 957 F.3d 316, 332–36 (2d Cir. 2020). … Because Mejia did not fear torture at the hands of the Guatemalan authorities, the relevant inquiry is whether government officials have acquiesced in likely third-party torture. To make this determination, the Court considers whether there is evidence that authorities knew of the torture or turned a blind eye to it, and “thereafter” breached their “responsibility to prevent” the possible torture.”
LexisNexis: “Having reviewed both the IJ’s and the BIA’s opinions, we hold that the agency did not err in finding that Garcia-Aranda failed to satisfy her burden of proof for asylum and withholding of removal, but that the agency applied incorrect standards when adjudicating Garcia-Aranda’s CAT claim.”
Law360: The Third Circuit has backed a decision denying a Dominican man’s bid for deportation relief based on his fear of being tortured, saying the procedural flaws he claimed tainted his proceedings — including the use of legal jargon and a videoconferencing glitch — did not prejudice him.
Law360: An English-speaking Cameroonian lost her chance to stay in the U.S. after the Eighth Circuit ruled that she failed to provide enough evidence showing that military officers had attacked her for her presumed support of Anglophone separatists.
LexisNexis: “Without record evidence that Phong orally waived his right to appeal before the IJ, we decline to address his alternative arguments that any waiver was unconsidered, unintelligent, or otherwise unenforceable. Rather, we remand to the BIA to develop the record on the waiver issue and, if it deems it appropriate, to consider Phong’s remaining arguments in the first instance.”
Law360: A divided Ninth Circuit on Monday ruled that the federal government was not constitutionally required to provide a Salvadoran immigrant a second bond hearing amid his prolonged detention during removal proceedings, while also bearing the burden to show he was a flight risk or danger to the community.
AP: The U.S. Department of Homeland Security has agreed to pay a Vermont-based immigrant advocacy organization $74,000 in legal fees to settle a lawsuit seeking information about whether advocates were being targeted by immigration agents because of their political activism.
USCIS: Today, U.S. Citizenship and Immigration Services announced it is extending and expanding previously announced filing fee exemptions and expedited application processing for certain Afghan nationals.
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Elizabeth Gibson (Pronouns: she/her/ella)
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National Immigrant Justice Center
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T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Folks, it’s about re-instituting the law and screening system for legal asylum seekerswhich was in effect, in one form or another, for four decades before being illegally abrogated by the Trump Administration’s abusive use of Title 42. Outrageously, after promising to do better during the 2020 election campaign, the Biden Administration has “gone along to get along” with inflicting massive human rights violations under the Title 42 facade until finally ordered to comply with the law by U.S. District Judge Emmet G. Sullivan last month.
One of Judge Sullivan’s well-supported findings was that the scofflaw actions by both Trump and Biden officials had resulted in knowingly and intentionally inflicting “dire harm” on legal asylum applicants:
Sullivan wrote that the federal officials knew the order “would likely expel migrants to locations with a ‘high probability’ of ‘persecution, torture, violent assaults, or rape’ ” — and did so anyway.
“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals,” Sullivan wrote. “It is undisputed that the impact on migrants was indeed dire.”
Contrary to the “CYA BS” coming from Biden Administration officials, making the law work at the Southern Border requires neither currently unachievable “reform” legislation nor massive additions of personnel! It does, however, require better personnel, expert training, accountability, smarter use of resources, and enlightened, dynamic, courageous, principled, expert leadership currently glaringly lacking within the Biden Administration.
The Administration’s much ballyhooed, yet poorly conceived, ineptly and inconsistently implemented,“revised asylum regulations” have also failed to “leverage” thepotential for success, thus far producing only an anemic number of “first instance” asylum grants. This is far below the rate necessary for the process significantly to take pressure off the backlogged and dysfunctional Immigration Courts, one of the stated purposes of the regulations!Meanwhile, early indications are that Garland’s ill-advised regulatory time limits on certain arbitrarily-selected asylum applications have further diluted quality and just results for EOIR asylum decisions. That, folks, is in a system where disdain for both of these essential judicial traits is already rampant!
It’s not rocket science! It was well within the capability of the Biden Administration to establish a robust, functional asylum system had it acted with urgency and competency upon taking office in 2021:
Better Asylum Officers at USCIS and Immigration Judges at EOIR — well-qualified asylum experts with practical experience in the asylum system who will timely recognize and grant the many valid asylum claims in the first instance;
Cooperative agreements with NGOs and pro bono organizations to prescreen applications in an orderly manner and represent those who can establish a “credible fear;”
A new and improved BIA of qualified “practical scholars” in asylum law who will establish workable precedents and best practices that honestly reflect the generous approach to asylum required (but never carried out in practice or spirit) by the Supremes in Cardoza-Fonseca and the BIA itself in its long-ignored and consistently misapplied precedent in Mogharrabi;
An orderly refugee resettlement program administered under the auspices of the Feds for those granted asylum and for those whose claims can’t be expeditiously granted at the border and who therefore must present them in Immigration Court at some location away from the border.
The Biden Administration has nobody to blame but themselves for their massive legal, moral, and practical failures on the Southern Border! With House GOP nativist/restrictionists “sharpening their knives,” Mayorkas, Garland, Rice, and other Biden officials who have failed to restore the legal asylum system shouldn’t expect long-ignored and “affirmatively dissed” human rights experts and advocates to bail them out!
The massive abrogations of human rights, due process, the rule of law, common sense, and human decency that the GOP espouses — so-called enforcement and ineffective “deterrence” only approach — will NOT resolve the humanitarian issues with ongoing, often inevitable, refugee flows!
But, the Biden Administration’s inept approach to human rights has played right into the hands of these GOP White Nationalist politicos. That’s an inconceivable human tragedy for our nation and for the many legal refugees we turn away without due process or fair consideration of their life-threatening plight! These are refugees — legal immigrants — who should be allowed to enter legally and help our economy and our nation with their presence.
If we want refugees to apply “away from the border,” we must establish robust, timely, realistic refugee programs at or near places like Haiti, Venezuela, and the Northern Triangle that are sending us refugees. In the Refugee Act of 1980, Congress actually gave the President extraordinary discretionary authority to establish refugee processing directly in the countries the refugees are fleeing. This was a significant expansion of the UN refugee definition which requires a refugee to be “outside” his or her country of nationality. Yet, no less than the Trump and Obama Administrations before, President Biden has failed to “leverage” this powerful potential tool for establishing orderly refugee processing beyond our borders!
Meanwhile, down on the actual border, a place that Biden, Harris, Mayorkas, Garland, Rice, and other “high level architects of failed asylum policies” seldom, if ever, deign to visit, life, such as it is, goes on with the usual abuses heaped on asylum seekers patiently waiting to be fairly processed.
A rational observer might have thought that the Biden Administration would use the precious time before Dec. 22, 2022, reluctantly “gifted” to them by Judge Sullivan, to pre-screen potential asylum seekers already at ports of entry on the Mexican side. Those with credible fear and strong claims could be identified for orderly entries when legal ports of entry (finally) re-open on Dec. 22. Or, better yet, they could be “paroled” into the U.S. now and expeditiously granted asylum by Asylum Officers.
This would reduce the immediate pressure on the ports, eliminate unnecessary trips to backlogged Immigration Courts, and expedite these refugees’ legal status, work authorization, and transition to life in the U.S.
I have no idea what the Biden Administration has done with the time since Judge Sullivan “gifted” them a stay. The only noticeable actions have been more BS excuses, blame-shifting, and lowering expectations.
But, in reality, by their indolent approach to humanitarian issues and the law, in the interim the Administration has consciously left the fate of long-suffering and already “direly-harmed” legal asylum seekers to the Mexican Government. According to a recent NBC News report, the Mexican Government forcibly “rousted” many awaiting processing at a squalid camp near the border and “orbited them’ to “who knows where.” https://www.nbcnews.com/now/video/mexican-authorities-evict-venezuelan-migrants-from-border-camps-155516485544
Judge Sullivan might want to take note of this in assessing how the Biden DOJ has used the “preparedness time” that he reluctantly granted them following his order.
The heroes of the 2022 midterm elections were Democratic voters and activists, not the party’s leadership. Those leaders should remember that and not try to distance themselves from the party’s base as they have at times in the past two years.
Though they changed course in the final months before the election, the Biden administration and congressional Democrats spent much of 2021 and 2022 on a flawed strategy. Democratic leaders were determined to boost the party with people who didn’t vote for Joe Biden in 2020, particularly the White voters without college degrees who have shifted sharply to the GOP over the last decade. So Democrats focused largely on economic policy, such as the American Rescue Plan, the infrastructure bill and a law making it easier to manufacture microchips in the United States. They intentionally highlighted how these provisions would help people without college degrees and people in rural areas.
They at times sidelined other issues, such as voting rights, that might not be the priorities of White voters without college degrees. In July, a top White House official, communications director Kate Bedingfield, bashed party activists who complained that the administration wasn’t responding aggressively enough to the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization ruling eliminating the right to an abortion. And Democrats moved to the right on some issues, most notably policing. There were constant efforts to court moderate GOP voters and lawmakers and sideline prominent left-wing figures.
. . . .
The Democrats didn’t do well in this year’s elections by flipping lots of voters in places that voted Republican in 2020, such as Florida and Ohio. What they did was maintain strength in the congressional districts and states that they won two years ago and four years ago. The party’s base prevented the bottom from falling out.
Party officials are rushing to give credit — to one another. And some of the party’s leaders do deserve praise. Candidates such as Gov. Gretchen Whitmer of Michigan, who easily won reelection, and Pennsylvania Gov.-elect Josh Shapiro early in their campaigns highlighted abortion and democracy, in addition to the economy. Biden rightly ignored some in the party who argued he should not talk about democracy issues in the final days of the campaign.
But in elections, the voters are the actors, the deciders. And this year, millions of Democratic-leaning voters turned out and stuck with the party, looking past sky-high inflation and a leadership team that spent much of its time courting people who would never vote for Democrats while ignoring key priorities of people who always vote for the Democrats.
These voters should be commended and celebrated.
****************
Read the complete op-ed at the link.
Perry my friend, let’s go back just a bit in time and think about the “original targets” of Trump’s MAGA GOP “platform” of hate, lies, false narratives, and virulent anti- democracy insurrection masquerading as “patriotism!”
Who’s been out there fighting for truth, justice, and equality before the law since “Day 1” of the MAGA hate movement? Who led the resistance at airports when the first manifestations of the Trump regime’s neo-Nazism in action began just shortly after his inauguration? Who took the legal fight to preserve American democracy all the way to the Supremes before a right-leaning majority still wedded to Dred Scott and the Chinese Exclusion cases tilted in favor of tyranny? A tilt, I might add that has progressively gotten worse over time and has spawned millions of human rights abuses, enabled torture, and actually helped kill some of the vulnerable humans we were sworn to protect?
Historically, migrants of all types, voluntary or involuntary, have constituted the “other” in America — targeted, disadvantaged at law,and exploited by their fellow Americans even while being the essential ingredient that has built our nation.
It’s rather odd, considering that 98% of us were “the other” at some point in history. I suppose a reckoning with that “inconvenient truth” is one of a number of reasons why theMAGA GOP works so hard to “whitewash” American history.
So, it’s worth thinking about why a talented group, their expertise, and their “learned wisdom” — and the better America for all that they represent and fight for — becomes so expendable and ignored by Dems between election cycles. Also worth reflecting on where American democracy, tenuous as it might be today, would be without them.
If the Biden Administration had honored and “leveraged” the immigration experts who helped elect it in 2016 and preserve it in 2022, we might well have order at the border, many more legal workers, lower inflation, decreasing backlogs, focused immigration enforcement that preserves national security, courts that model equal justice and due process and help develop the Article III Judiciary of the future, creative ideas for helping the economy of rural America, smarter use of taxpayer dollars, the list goes on. Success in these areas might even have enabled Dems to hold onto the House or given them a bigger margin in the Senate.
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
Texas Observer: But as the case of Felipe shows, immigration officials have continued to separate parents and children in violation of the policy. From the start of the new administration to August 2022—the latest month for which data has been published—U.S. authorities have reported at least 372 cases of family separation.
AP: Within hours, the Justice Department asked the judge to let the order take effect Dec. 21, giving it five weeks to prepare. Plaintiffs including the American Civil Liberties Union didn’t oppose the delay.
Politico: Party leaders are pushing hard for legislation aiding the undocumented population known as “Dreamers” before Republicans take the House. But GOP senators have little interest. See also House Judiciary GOP Highlights First Oversight Targets.
TRAC: The outcome for asylum seekers has long been influenced by the identity of the immigration judge assigned to hear their case. This continues to be true as documented by TRAC’s just released judge-by-judge report series, now updated through FY 2022. In Arlington, Virginia, judge denial rates ranged from 15 percent to 95 percent. In Boston, judge denial rates varied from 17 percent to 93.5 percent. In Chicago, they ranged from 16 percent to 90 percent, while in San Francisco one judge denied just 1 percent of the cases while another denied 95 percent.
NPR: Individuals held in immigration detention were barred from visits with relatives and friends for more than two years during the pandemic — far longer than federal prisons. In May, ICE lifted the ban, but immigrant advocates and people in detention centers argue that social visits have not been fully nor consistently reinstated.
Philly Inquirer: A second bus carrying immigrants from Texas arrived in Philadelphia Monday morning, a twice-in-six-days sequel that propelled the city to offer fresh welcome to more weary, uncertain travelers from the border.
AP: U.S. immigration authorities didn’t do enough to adequately vet or monitor a gynecologist in rural Georgia who performed unnecessary medical procedures on detained migrant women without their consent, according to results of a Senate investigation released Tuesday.
Intercept: According to ICE’s Performance-Based National Detention Standards, whenever there is a “calculated use of force,” staff are required to use a handheld camera to record the incident. The Intercept, with Kumar’s consent, requested the video through the Freedom of Information Act. After ICE refused to turn over the footage, The Intercept filed a lawsuit and ICE subsequently agreed to turn over the footage, but the agency redacted the faces and names of everyone who appears in it, aside from Kumar.
Guardian: A multi-country investigation by the Guardian finds at least 6,500 migrant workers from south Asia have died in Qatar in the 10 years since it was awarded the right to host the World Cup.
AG: (1) Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018), is overruled. (2) Pending the outcome of the rulemaking process, immigration judges and the Board of Immigration of Appeals may consider and, where appropriate, grant termination or dismissal of removal proceedings in certain types of limited circumstances, such as where a noncitizen has obtained lawful permanent residence after being placed in removal proceedings, where the pendency of removal proceedings causes adverse immigration consequences for a respondent who must travel abroad to obtain a visa, or where termination is necessary for the respondent to be eligible to seek immigration relief before United States Citizenship and Immigration Services.
Law360: The Biden administration on Thursday swept aside a Trump-era decision that mostly stripped immigration judges of their power to end removal proceedings, restoring immigration courts’ ability to terminate some deportation cases while it devises new policy.
Law360: A federal judge on Wednesday granted “with great reluctance” the Biden administration’s request for a five-week stay of his previous day’s order to end expulsions of migrants under Title 42, a public health provision the Trump administration began using at the start of the pandemic.
Law360: A split Fourth Circuit panel ordered the U.S. Board of Immigration Appeals to reconsider a Jamaican man’s removal order, criticizing the agency’s reasons for rejecting his claims that he diligently sought reversal of his order following a Supreme Court ruling.
LexisNexis: Michael Shannon writes: “I wanted to share a very good written decision from IJ Barbara Nelson, who granted asylum to my client based on her actual and imputed feminist political opinion under Hernandez-Chacon v. Barr.”
Law360: The federal government got the green light from an Arizona federal judge to conduct psychological examinations of asylum-seeking parents suing for damages for the alleged emotional trauma from being separated from their children at the southwestern U.S. border.
AILA: AILA and partners sent a letter to USCIS, EOIR, and OPLA addressing the unnecessary hurdles non-detained people in removal proceedings face in securing a biometrics appointment prior to their merits hearing.
AILA: USCIS notice of the automatic extension of the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal set to expire on 12/31/22, through 6/30/24. (87 FR 68717, 11/16/22)
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
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After two years of “drinking the koolaid,” the party might be over for Mayorkas & Garland, as McCarthy & his insurrectionist/White Nationalist zanies “move in for the kill.”
Two years of ineptness, failure to clean house at DOJ and DHS, unkept promises to advocates, lack of guts to quickly reverse Trump’s massive scofflaw program of racist-inspired human rights abuses, arrogant “tuning out” of experts, lack of engagement and presence at the border have been largely ignored by Dems in both Houses. Indeed, other than a hearing on the Article 1 bill before Chair Lofgren (at which Garland was not required to appear and explain his due-process-denying mess and abject failure to reform EOIR), Dems failure to conduct meaningful oversight of the Administration’s mishandling of refugee programs, asylum, detention, asylum seeker resettlement, and Immigration Courts will be “coming home to roost” as insurrectionist, racists from the House GOP take aim at “snuffing” humanity and abolishing the rule of law!
Two years of inept, immoral, “Miller Litism” from the Administration leaves Dems with no defense and no supporters of their actions. Nativist restrictionists wanted “100% kill” @ border! Experts wanted a return to the rule of law, orderly processing, and due process. The Biden Administration delivered neither!
We tried to tell them, but they wouldn’t listen! No,McCarthy and his insurrectionist White Nationalist zany-haters have the floor. Just have to hope that historians are fully documenting the lies and Neo-Nazi views that these GOP hacks will be promoting — to help future generations understand how America “went off the rails” in the 21st century! Understandably, the GOP would rather focus on Biden’s failed immigration policies than on the rampant gun violence, hate crimes, child abuse, forced births, and dumbing down of America at the heart of their vile agenda!
🇺🇸Due Process Forever! The GOP’s “New McCarthyism,” Never!
“Judge” Roy Bean (1825-1903) American Saloon Keeper & “Jurist” Public Realm His reputation for “rough justice” in the West would be right at home in the “Asylum Free Zones” of Garland’s EOIR. Bean “was once trying a Mexican on a charge of horse stealing and his charge was the shortest on record: Gentlemen of the Jury, there’s a greaser in the box and a hoss missing. You know your duty, and they did.”
Here’s the latest analysis of Garland’s ongoing abuse of his office from Austin Kocher, PhD, at TRAC:
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
If someone NOT Merrick “What Me Worry” Garland (the “Alfred E. Neumann of Biden’s immigration bureaucracy”) took a look at the data, one major thing would jump out! There are likely more than 400,000 refugees entitled to asylum sitting in Garland’s 770,000 case asylum backlog (52% x 770,000). (The asylum backlog at EOIR is a “subset” of Garland’s largely self-inflicted, ever mushrooming, nearly 2 million case EOIR backlog — more judges have produced more backlog, so that’s likely NOT the answer here).
And, this is in a system currently governed by skewed anti-asylum BIA “precedents” and a chronic “anti-asylum culture” actively encouraged and fed by the Trump Administration. In a properly staffed and functioning court system with qualified, due-process oriented, judges and an expert BIA that enforced some decisional consistency and properly and generously interpreted asylum law, a “grant rate” of 75% or more would be a plausible expectation.
Given the obvious (and I would argue intentional) lack of reliable data on how a legitimate asylum system, one consisting at all levels of judges with well-recognized expertise in asylum law and human rights, and overseen by competent, due-process-oriented judicial administrators, might function, the 75% figure is just an “educated guesstimate.” But, it matches my own personal experience over 13 years on the bench in the (now defunct) Arlington Immigration Court.
It’s also in line with my recent conversations with the head of one of the largest NGOs in the DMV area involved in meeting busses and counseling those “orbited” from the Southern border by the racist/nativist GOP Govs that Biden, curiously, has chosen to run our domestic refugee resettlement program. This is a person who, unlike Garland, his lieutenants, and most of the other politicos and nativist blowhards participating in the “border travesty,” actually spent years of a career representing individuals in Immigration Court. They estimated that “at least 70%” of the “arriving bus riders” had very viable asylum claims.
This is a far cry from the nativist, restrictionist myths promoted by both the Trump and Biden Administrations — obviously to cover up their gross human rights violations in knowingly and illegally returning hundreds of thousands of legal refugees to danger zones! Many human rights experts would consider such gross misconduct to be “crimes against humanity.” Consequently, it doesn’t take much imagination to see why self-interested scofflaw officials like Garland, Mayorkas, and White House advisors seek to manipulate the system to keep the asylum grant rates artificially low while eschewing proper, realistically robust use of the overseas refugee program to take the pressure off the border — by acting legally rather than illegally!
Almost all the EOIR asylum backlog consists of “regular docket” (I use this term lightly with EOIR where “normalcy” is unknown) cases. Those are refugees who have had time to get lawyers, adequately prepare, document their cases, but are stuck in Garland’s chronically dysfunctional system. Consequently, they are “denied by delay” legal immigration status, a chance to get green cards, and to eventually qualify for citizenship. The American economy is denied an important source of legal workers who should be part of our permanent workforce and well on their way to full participation in our political system and society!
An expert looking at this system would see a “golden opportunity” to move most of the backlogged “easily grantable” asylum cases out of the system with stipulated grants or short hearings (the kind you actually might be able to do 3-4 a day without stepping on anyone’s due-processrights or driving the private bar nuts). These cases would also avoid the BIA’s appellate backlog, as well as eliminating unnecessary workload in the U.S. Circuit Courts (which already have their own inconsistency, rubber stamp, and bias issues in the human rights/racial justice area that seem to be getting worse, not better).
Knocking 400,000+ cases off the backlog wouldn’t completely solve Garland’s 2 million case backlog problem — only a complete “house cleaning” at EOIR, replacing many of the current bureaucrats with competent leaders and expert Immigration Judges well-versed in asylum law, will do that. But, cutting EOIR’s backlog by 20% (and the asylum backlog by over 50%) without stomping on anyone’s rights, while bolstering much-needed legal immigration, and harnessing the strengths of the private/pro bono bar, is nothing to “sneeze at!” That’s particularly true in comparison with Garland’s two years of mindless “designed to fail” gimmicks and astounding mismanagement, which have produced exactly the opposite results!
How bad has Garland’s leadership been at on human rights, due process, and racial justice at DOJ. A number of seasoned asylum practitioners have told me that today’s EOIR, also suffering from a tidal wave of Garland’s“Aimless Docket Reshuffling” — is actually significantly worse than it was under Trump! That’s right, Garland’s tone-deaf incompetence has exceeded the disorder and systemic unfairness caused by overt xenophobia, anti-asylum bias, misogyny, “dumbing down,” and enforcement-biased “weaponization” of the Sessions/Barr years.
As for Dr. Kocher’s cogent observation that input from the Immigration Judges who actually decide these cases is a “missing ingredient,” good luck with that, my friend! Perhaps understandably in light of his unseemly failures at EOIR, Garland has taken EOIR’s traditional opaqueness and “muzzling” of Immigration Judges to new heights — even barring their participation in CLE events aimed at improving the level of practice before his courts.
Apparently, “studied incompetence” in a Democratic Administration can be even worse than the “malicious incompetence” of the Trump Kakistocracy — at least where immigrants rights/human rights/racial justice/ women’s rights are concerned at EOIR. That’s an astounding observation! One that I actually never thought I’d hear from practitioners!
The only way for human rights and racial justice experts and advocates to “communicate” with Garland in his “ivory tower” is to ‘“sue his tail” in court! Judge Sullivan’s recent opinion finding Title 42 illegal incorporates the very facts and law used by human rights experts and advocates in years of fruitless pleading and begging Garland to “cease and desist” his support for unlawful conduct and “just follow the law.” The latter seems like a modest “no-brainer” request to a guy once nominated by an Dem President for the Supremes.
Waiting for Merrick Garland to fix the mess at EOIR to provide even a bare minimum of due process and rational administration is like waiting for the guy pictured below. Frustrated and “Garland-weary” as they might be, human rights advocates should take it to heart and act accordingly!
Waiting for Merrick Garland and his “clueless crew” at DOJ to fix the dysfunctional Immigration Courts will be an exercise in futility. He only pays attention when ordered by a Federal Judge, which, somewhat ironically, he used to be. But, he’s proven “beyond a reasonable doubt” that he is unqualified to run one of the most important and life-determining Federal Judiciaries — one where due process has been buried beneath an avalanche of expediency, incompetency, intellectual dishonesty, and dumb gimmicks. When will “enough be enough?” https://creativecommons.org/licenses/by-sa/3.0
Professor Philip G. Schrag Georgetown Law Co-Director, CALS Asylum ClinicProfessor from Practice; Director, Human Rights Institute; Director, Center for Applied Legal Studies PHOTO: GeorgetownLawProfessor Jaya Ramji-Nogales, Associate Dean for Academic Affairs I. Herman Stern Research Professor Temple Law PHOTO: Temple Law
Here’s the abstract of the latest “practical scholarship” from the RR3:Professors Phil Schrag, Andy Schoenholtz, and Jaya Ramji-Nogles, “The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem,” which will appear in the Howard Law Journal:
The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem
In 2022, the Biden administration implemented what the New York Times has described as potentially “the most sweeping change to the asylum process in a quarter-century.” This new adjudication system creates unrealistically short deadlines for asylum seekers who arrive over the southern border, the vast majority of whom are people of color. Rather than providing a fair opportunity for those seeking safety to explain and corroborate their persecution claims, the new system imposes unreasonably speedy time frames to enable swift adjudications. Asylum seekers must obtain representation very quickly even though the government does not fund counsel and not enough lawyers offer free or low-cost representation. Moreover, the immigration statute requires that asylum seekers must corroborate their claims with extrinsic evidence if the adjudicator thinks that such evidence is available – a nearly impossible task in the time frames provided by the new rule. As a result, the new rule clashes with every state’s Rules of Professional Conduct 1.1 and 1.3, imposing duties of competence and diligence in every case that a lawyer undertakes. It will be extremely difficult for lawyers to provide competent and diligent representation under the new, excessively short deadlines. For immigration lawyers, the new rule exacerbates a challenge that they share with public defenders and other lawyers working within dysfunctional systems: how to provide even the most basic level of procedural due process for their clients, most of whom are people of color.
This article begins by describing the regular asylum process. It then summarizes the history of expedited removal, a screening system that limits access to that process for asylum seekers who arrive at the southern U.S. border without visas. It then explains and assesses the Biden administration’s first and second versions of the new asylum rule, highlighting the major flaw that will make the current version an unfairly formidable hurdle for asylum seekers subject to it. The article concludes by setting out a way for the Biden administration to create a more fair, accurate and efficient border asylum adjudication system and ensure that the U.S. can comply with domestic and international refugee law.
Keywords: Asylum, Asylum adjudication, Asylum process, Expedited removal, Immigration, Legal ethics, Due process, Administrative law
JEL Classification: K39
Suggested Citation:
Schrag, Philip G. and Ramji-Nogales, Jaya and Schoenholtz, Andrew I., The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem (September 29, 2022). Howard Law Journal, Vol. 66, No. 3, 2023, Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4233655
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New regulations pasted on old anti-asylum, anti-lawyer, anti-due-process attitudes and relying on an ever more dysfunctional EOIR, now at war with the asylum bar, won’t cut it! Albrecht Dürer, Public domain, via Wikimedia Commons
You can download the complete article from SSRN at the above link.
Expect the Biden Administration to “blow off” the suggestions for improvement at the end of the article. They seem to glory in “tuning out” the views of practical experts who know how to fix the broken asylum adjudication system.
As I predicted when these regulations first came out, they were “programmed for failure.”
Due-process-denying, representation-killing, arbitrary time limits imposed from above have been tried by Administration after Administration. They have always failed and will continue to do so. So, why are they a key part of the Administration’s so-called “reforms?”
Compare the article’s discussion of the importance of representation and the practical and ethical problems caused by the new regulations with the reality of the “nutsos” ways EOIR is mis-treating attorneys currently trying to practice before the Immigration Courts!
Additionally, the unwarranted, yet largely self-fulfilling assumption by the Biden Administration that only 15% of asylum applications would be granted at the “Asylum Office stage” show why this program was designed to fail by the wrong officials. For the system to meaningfully address the Immigration Court asylum backlog, the grant rate would have to be multiples of that — probably at least 50%.
That’s a realistic projection, given the well-documented, atrocious human rights conditions in most “sending countries” and the current artificial limitations on grants imposed by bad precedents and flawed, biased, or incompetent adjudications. When I was at the Arlington Immigration Court from 2003-16, a significant majority of the “referrals” from the Asylum Office were granted asylum, withholding of removal, or CAT protection, often with concurrence or only token opposition by ICE. That suggests that there is a huge unrealized potential for many more timely asylum grants at the Asylum Office. But, success will never be achieved with the current “anti-asylum, afraid to correctly and fairly implement refugee law gang” in charge — committed to retaining the bad attitudes and repeating the mistakes of the past!
Hanging over the whole disaster is the “uncomfortable truth” that I’ve been shouting:
The Biden Administration is still operating EOIR and large portions of the immigration bureaucracy at DHS with Trump-era “holdovers” who were improperly “programmed to deny” asylum.
There is a dearth of positive precedents from the BIA on gender-based asylum and other types of common asylum applications at the border that are routinely and wrongfully mishandled and denied.
There are cosmic problems resulting from failure to provide qualified representation of asylum seekers at the border.
Detention continues to be misused as a “deterrent” to legal claims and “punishment” for assertingthem.
Despite “touting” a much larger refugee admissions program beyond the border, the Administration has failed to deliver a robust, realistic, refugee admissions program for Latin America and the Caribbean which would take pressure off the border.
Racism and White Nationalism continue to drive the Administration’s dramatically inconsistent approach to White refugees from Ukraine compared with refugees of color at the Southern Border.
Indeed, this entire “reform effort” is essentially “upside down.” It’s a “designed to fail” attempt to avoid the broken and malfunctioning Immigration Court system without dealing with the REAL problem: EOIR!
Without the necessary progressive personnel and structural reforms at Garland’s EOIR (“clean house” of unqualified, under-qualified, or misplaced administrators and judges from past Administrations), the cultural changes (“out with the anti-asylum, anti-immigrant, racially challenged, too often misogynistic, EOIR culture”) it would bring, and most of all, the substantive changes to align asylum law with due process, best practices, and the generous interpretations that were foreshadowed by the Refugee Act of 1`980 but have been intentionally suppressed by politicos of both parties, there will be neither justice nor stability in our asylum and immigration systems, nor will there be equal justice for all, including racial justice, in America!
Even my esteemed “RR3” friends understate the debilitating effects of the ever-worsening dysfunction at EOIR and Garland’s failure of leadership on due process and human rights!
Perhaps the most telling statement in their article is this: “Asylum officers are more highly trained in asylum adjudication than immigration judges . . . .”Why, on earth, would that be?
Why isn’t the BIA led and comprised of internationally-respected asylum experts like Schrag, Schoenholtz, Ramji-Nogales, and others like them? Why aren’t all Immigration Judges drawn from the ranks of universally-respected “practical scholars” in asylum and human rights?Plenty of them are out here! Why aren’t they on the bench? Why is the Biden Administration running a “D-Team Judiciary” at EOIR rather than “the world’s best administrative tribunals, guaranteeing fairness and due process for all” as EOIR was once envisioned? What’s the excuse for lousy training at EOIR when top-flight “modulated” asylum training is available from expert sources like Professor Michele Pistone’s innovative VIISTA Villanova program? What’s the excuse for the colossal EOIR failure that threatens lives and our democracy on a daily basis? Why aren’t alarm bells going off at the White House about Garland’s failed stewardship at EOIR?
Reforming the asylum system, starting with EOIR, could also potentially have big societal and economic benefits for America. Asylees gain legal status, can work, get in line for green cards, eventually become citizens, and realize their full potential as productive members of our society. Not incidentally, they also become regular taxpayers and can help bolster essential enterprises and infrastructure improvements.
For example, just yesterday the Portland (ME) Press Herald featured an article about the critical, chronic shortage of workers in Maine. https://www.pressherald.com/2022/10/02/how-can-maine-solve-its-workforce-crisis/ Why isn’t the Biden Administration working with Maine authorities, NGOs, and economic development groups to “fast track” asylum approvals for those who might be persuaded to resettle in Maine to take advantage of these economic opportunities, for everyone’s benefit? Mainers also are suffering from a shortage of affordable housing. I’ll bet that with a little “seed money,” there are enterprising, skilled groups of potential asylees who could help build and maintain affordable housing for communities in need, in Maine and elsewhere in the U.S. Why are they instead “rotting at the border” or being aimlessly “orbited” around America by nativist GOP governors trying to score political points with their White Nationalist base?
By adopting the nativists’ dehumanizing mis-characterization of asylum seekers as a “problem” to be measured in “numbers,” deterred, and held at bay, the Administration is missing a golden opportunity to achieve some much-needed “win-wins.” Why run bone-headed “built to fail, haste makes waste” asylum pilot programs in a few cities rather than trying things that might work to everyone’s advantage, as I have described above?
At a time when many in America are finally learning the truth about our disgraceful failure to offer refuge to Jews during the period leading up to the Holocaust from the Ken Burns documentary, we (our at least some Americans) appear to be committed to making the same mistakes again. We should not undervalue the lives and contributions of refugees because of systemic or structural boas against certain groups!
Claiming to “reform” the U.S. refugee and asylum system without dealing with the ongoing, worsening, disasterous dysfunction at EOIR is a fool’s errand. The way to make the system work more efficiently is to grant the large number of deserving asylum cases in a timely, practical, manner driven by due process, best practices, and best interpretations of asylum law. Unless and until those in charge act on this truth, the awful mess at EOIR will continue to be an existential threat to democracy!
Cannon rules Trump lawyers don’t have to clarify claims on Mar-a-Lago documents
Special master Raymond Dearie had told Donald Trump’s attorneys lawyers to address whether documents were planted or declassified
Judge Aileen M. Cannon told Donald Trump’s lawyers Thursday that they did not need to comply with an order from special master Raymond J. Dearie and state in a filing whether they believe FBI agents lied about documents seized from the former president’s Florida residence.
Thursday’s ruling was the first clash between Cannon, a Trump appointee who has generally shown the former president deference in litigation over the Mar-a-Lago investigation, and Dearie, a federal judge she appointed as an outside expert in the case, who appears to be far more skeptical of Trump.
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Read the complete article at the link.
It’s actually a “clash” between a “Trump toady in robes” and a “real Federal Judge.” No wonder our legal system is falling into disrepute. I daresay no other potential criminal suspect in America has such power to control and improperly influence the investigation into his wrongdoing.
Beth Reinhard Investigative Reporter Washington Post PHOTO: WashPost WebsiteMaria Sacchetti Immigration Reporter, Washington PostMolly Hennessy-Fiske Immigration Reporter Washington Post PHOTO: WashPost Website
This WashPostarticle by Beth Reinhard, Maria Sacchetti, and Molly Hennessy-Fiske sets forth in detail how the courage and perserverance of asylum seekers, the humanity and initiative of the local community in Martha’s Vineyard, timely assistance by the Massachusetts Government, and heroic efforts by pro bono lawyers, came togetherto“redirect” the cruelty behind nativist GOP Govs’ idiotic political stunt.
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Nearly two weeks later, though, Jose is one of dozens of migrants who now question Perla’s efforts to entice them onto a flight that unexpectedly ended on the wealthy island of Martha’s Vineyard — a political operation engineered by Florida Gov. Ron DeSantis (R) to gin up outrage over the United States’ border crisis.
Much remains unknown about the effort. While DeSantis has embraced his role in staging the flight, arguing that it protected Florida from “negative ramifications” of a border crossing surge, his office has been less clear about the purpose of nearly $1.6 million paid to a contractor, according to state records, and the role of state officials in developing the plan.
But Post interviews with several migrants directly recruited by Perla, as well as court documents and state records, paint a picture of a carefully orchestrated, taxpayer-funded operation with little apparent concern for the interests of the migrants caught in the middle. Florida officials began researching Texas’s migrant situation weeks before the flights, and a contractor with ties to the DeSantis administration later handled the efforts. Some migrants, meanwhile, say they were misled into signing documents after being lured into the trip with food and hotel stays.
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Read the complete article at the link.
Imagine what could be accomplished if Texas and Florida officials actually worked to HELP resettle individuals in an orderly and reasonable manner that recognized their humanity and respected and facilitated their legal rights to apply for asylum and other protections in the US? What if the Biden Administration actually brought in a team of qualified experts to lead and operate our existing refugee and asylum systems fairly and effectively instead of using stale approaches and personnel who simply lack the skills, vision, and courage to get the job done?
Fortunately, the asylum seekers, NGOs, and state and local officials, and ordinary citizens in welcoming American communities have stepped up to get the job done notwithstanding the glaring failures and counterproductive efforts of the previously-mentioned groups!
The preposterous attempt by DeSantis to link “sanctuary” with asylum seekers! Loosely speaking, “sanctuary jurisdictions” are those that have declined to voluntarily cooperate with certain ICE enforcement activities, primarily directed at so-called “civil” immigration enforcement.
But, the Venezuelan asylum seekers “orbited” to Martha’s Vineyard had all been examined by DHS and released to pursue their legal requests for asylum in the US! Indeed, most probably turned themselves in to DHS Enforcement after being forced to cross illegally to present claims that the U.S. Government (with the connivence of GOP state Attorneys General and biased right wing Federal Judges) has refused to accept at legal ports of entry as they are supposed to do under our laws.
These individuals are NOT “wanted” by ICE enforcement. There is no connection whatsoever between any “sanctuary jurisdiction’s” decision not to cooperate with ICE enforcement in rounding up certain individuals for possible deportation and legal asylum seekers from Venezuela (or any other country) pursuing their claims, beyond the fact that sanctuary jurisdictions value human dignity and are more welcoming to migrants of all types and statuses when called upon to provide assistance to them.
Venezuelan asylum seekers are part of the larger forced exodus of 6-7 million Venezuelans escaping the repression of the Maduro regime. 95% of these forced migrants have found refuge in countries OTHER than the U.S. Colombia is the largest destination country with at least 1.7 million Venezuelans, many times more than the U.S.
The vast majority of Venezuelans have found refugee in countries far poorer and less able to resettle them than the U.S. The idea that “sanctuary policies” of Martha’s Vineyard or any other U.S. jurisdiction is driving Venezuelan asylum seekers is beyond absurd. Indeed, it now appears that the Venezuelan asylum seekers “orbited” to Martha’s vineyard as part of the DeSantis scheme neither knew where it was nor had any idea they were being sent there until they were well on their way!
Indeed, the decision tosend these individuals to an island with neither a DHS Office nor an Immigration Court (as opposed to, say, resettling them in Boston with advance notice), and with few “own site” pro bono lawyers, actually undermined their ability to comply with legal requirements and squandered resources that could and should have been put into getting timely and fair adjudications of their legal asylum applications. But, even in the face of GOP-led efforts to create maximum chaos, these legal asylum seekers and their supporters are committed to making our legal system work — against all odds!
Finally, congrats to Molly Hennessy-Fiske, long time LA Times immigration reporter who has now joined the team at WashPost!
Professor Erin Barbato Director, Immigrant Justice Clinic UW Law Photo source: UW Law
Good morning Judge Schmidt,
I hope this email finds you well. It is already getting chilly in Wisconsin but fall is one of my favorite seasons here. In case you are interested, this is a little piece that Newsy put together about a lovely family and Ngwa, an asylum seeker from Cameroon, who became part of their family. How a Cameroonian Immigrant Was Granted Asylum in the U.S. (VIDEO) (newsy.com) I do believe there are other families like this across the country willing to welcome people. The political use of humans seeking refuge is horrifying these days.
Thank you for all you do! I appreciate you.
Erin M. Barbato
Director Immigrant Justice Clinic
University of Wisconsin Law School
975 Bascom Mall
Madison, WI 53706
(608)262-2276
She/Her/Hers
The University of Wisconsin-Madison is built on the ancestral land of the Ho-Chunk Nation. In an 1832 treaty, the Ho-Chunk were forced to cede this territory. We respect the inherent sovereignty of the Ho-Chunk Nation, along with the eleven other First Nations of Wisconsin.
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View the video at the above link! Thanks, Erin, my friend for sending this in and for all that your and your wonderful students do for humanity and for Due Process in America! Many thanks to the Swandbys and other great American families for standing by refugees in need and being role models for the best in America at a time when so many of our politicians and their followers are “modeling bad behavior and lack of fundamental values!”
It’s always good to keep in mind that many Americans do have sound values and welcome asylum seekers and other immigrants, rather than using their situation to engineer political farces at the expense of vulnerable humans who have come here seeing legal refuge and are allowed to be in the US while pursuing their claims. As I have pointed out many times, any government official truly interested in addressing migration issues would prioritize spending money for 1) representation of asylum seekers, 2) orderly relocation to places where support systems are available and asylum claims are more likely to be fairly an timely adjudicated. But, that would take a thoughtful, cooperative, governing for the common good approach rather than wasteful political stunts.
Voters in both Florida and Texas will have a chance to remove their “stuntmen” in November. Unfortunately, however, it’s not clear that will happen.
We also shouldn’t let the Biden administration “off the hook” for: 1) failing to put in place a reasonable program for resettling asylum seekers away from stressed border communities; 2) the abject failure of the Immigration Court’s asylum adjudication process which is driving much of the haphazard response to legal asylum seekers; 3) the failure to achieve meaningful reforms, training, and appropriate staffing of the USCIS Asylum Offices (even assuming that the “new asylum regulations” were the answer, the implementation has been inexcusable, inept, and ineffective, just as many experts predicted); 4) the gross failure to establish a robust, generous, realistic refugee admission system for the Western Hemisphere to process refugees for admission before they are forced to come to our borders; and 5) their overall failure of leadership on refugee and asylum issues in both the national and international arenas.
Not to mention that even the Trump administration (the Trump administration!) found that refugees and asylees are a net positive for public budgets over the long run. That is, despite typically arriving penniless, these immigrants ultimately pay more in taxes than they receive in government benefits.
Contra DeSantis’s insinuations about immigrant moochers, these are people who want to work and become economically self-sufficient. That’s presumably why DeSantis’s own henchmen promised fictitious jobs to lure the asylum seekers onto flights.
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If Republican officials actually wanted to reduce the number of people coming to the border without advance permission, there are plenty of things these politicians could do. They could push for expansion of guest-worker visas, for instance. Or more funding for the refugee admissions program. Or really any other legal, orderly pathway to come to the United States.
After all, the main reason there is such a crush at the border — and why the asylum system in general is so overwhelmed — is that right now this is one of the very few legal ways to get to America.
Yes, I said legal: The families being hoodwinked and shipped around the country like chattel on chartered buses and flights are here lawfully, based on what’s been publicly reported. They turned themselves in upon crossing the border precisely so that they can apply for asylum, as is their legal right. The federal government has screened them, and granted them humanitarian parole while they pursue their asylum cases in court.
It’s not an ideal system. Or an especially fast one. It would be much better to fix the rest of our broken legal immigration system so that those other, more orderly pathways are available. Especially the pathways that offer quicker access to work permits, given America’s current massive labor shortages.
It’s true that Democrats have also put forth relatively little effort to fix these problems. In some cases Democrats seem fearful of appearing too pro-immigrant, having apparently bought into the GOP lore that deep down Americans are xenophobes. But even what little Democrats have tried to do they generally can’t do without 60 Senate votes. Which Democrats don’t have.
Democrats need Republicans to cooperate on immigration reform, and Republicans won’t. Even when those reforms are coupled with investments in border security that Republicans claim to want. The GOP would rather keep around a dragon they can perpetually promise to slay one day — and better yet, to taunt and torture for a while, in public, first.
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Read Catherine’s complete article at the link. Interesting that Catherine understands so much so well, while those in the Biden Administration charged with immigration and human rights policy are so clueless, timid, and inept!
In the meantime, the Dems have done little to make the current laws relating to refugees and asylum work. The much-hyped “asylum rule changes” at DHS have had little, if any, discernible positive impact. EOIR is a national disgrace — continuing the “death spiral” that accelerated during the Trump kakistocracy. The refugee system remains in shambles. The proposed 15,000 allocation of refugee admissions for FY 2023 to Latin American and the Caribbean is an insult and a “signal” to other receiving nations in the area that we are not serious about addressing the problem. There is no rational resettlement program for asylum seekers crossing the border, thus providing an unnecessary opening for the “performative cruelty” of clowns like DeSantis and Abbott.
None of these things are “rocket science” or “budget busters.” They just require knowledgeable leadership, values, and the courage to act on them. Apparently, faced with the cruelty and desecration of values by the “MAGA GOP,” the Dems think that “all they have to do is show up, smile, and mumble platitudes” to seem like the only choice for Americans who believe in democracy. Maybe — but I wouldn’t count on it!
I think that Catherine “hit the nail on the head” with this assessment of the spineless policy officials driving refugee and asylum policies in the Biden Administration: “In some cases Democrats seem fearful of appearing too pro-immigrant, having apparently bought into the GOP lore that deep down Americans are xenophobes.” Cowardice on immigrants, immigrants’ rights, and racial justice has become an endemic problem in the Democratic Party.
It is not easy to convey the magnitude of the ongoing disaster at EOIR, the Executive Office for Immigration Review, the office that oversees our nation’s Immigration Courts. Simply stated, the agency is rescheduling and advancing hundreds–maybe thousands–of cases without notifying attorneys, checking whether we are available to attend the hearings or checking whether we have the capacity to complete the cases.
On its face, this appears to be a mere scheduling problem. But in effect, it is a vicious and unprecedented assault on immigrants, their attorneys, and due process of law.
“Advancing hearings with no notice and no time to prepare? Why didn’t I think of that?!”
For me at least, the problem started small. A few cases were rescheduled and advanced without anyone at the Immigration Court bothering to inquire about my availability: Your case that was scheduled for two years in the future has been advanced and is now set for two months in the future. I was angry and upset, but I did not want to let my clients down. So I set other work obligations aside. I set family time aside. I put off doctors appointments. And I completed the cases, which were approved. I hoped that these cases were anomalies and that EOIR would stop this unfair and abusive practice. But that was not to be.
Instead, EOIR has dramatically expanded its effort to reschedule cases, often without providing sufficient notice–or any notice–to get the work done for our clients. As best as we can tell, the problem is occurring in California, Colorado, Maryland, and Virginia. I myself have had about a dozen cases rescheduled and advanced (so far). These cases had been scheduled for 2023 or 2024, and suddenly, they are now set for the fall of 2022. Other attorneys have had 20, 30 or more cases advanced, including some that were double booked. One lawyer reported having seven cases scheduled for the same week and 47 cases set for one month. Another lawyer purportedly told a judge that if she had one more case scheduled within the next six months, she would commit suicide.
Here, I want to break down what is happening, so noncitizens in Immigration Court can at least have some idea about EOIR’s disruptive practices.
First, when I say that EOIR is not providing notice of the hearings, that is not entirely accurate. They are not sending us a notice or contacting us in advance. Instead, they are posting the new hearing dates on our portal. What does this mean? Each attorney has access to a portal page with a calendar. We can scroll through the calendar one month at a time. Days with hearings are highlighted, and we can click on those days to see what is scheduled. When I review my calendar, I often find new hearings that were not previously on the schedule. The only way to know whether a new hearing has been scheduled is to scroll through our portals month-by-month and compare what’s there with our existing calendar–a burdensome process that leaves plenty of room to overlook a date. Needless to say, every time I sign on to the portal, I feel a nauseous sense of dread about what I might find.
Once we discover the new date, we need to review the file, contact the client, and determine whether we can complete the case. This all takes time. If we cannot complete the case, or we do not have an attorney available on the scheduled date, we need to ask for a continuance. Of course, clients who have been waiting years for a decision usually want to keep the earlier hearing date. They do not understand why we cannot complete the work or why we are not available that day. Their perspective is perfectly reasonable, but they only have one case, where lawyers have many and we are daily being ambushed by EOIR with additional work. All this can result in conflicts between clients (who want their cases heard) and lawyers (who need time to get the work done). It also makes it difficult to serve our other clients, who must be pushed aside to accommodate the new work randomly being dumped on us.
Even if the client agrees to request a continuance, that does not solve the problem. Motions to continue can be denied. Even when they are granted, the judges tend to reset the date for only a few weeks in the future, which is often not enough time to properly complete the work. Other times, judges simply do not rule on the motion, so we are left to prepare the case, not knowing whether it will go forward or not.
Also, while we sometimes discover a new date that is a few months in the future (and so in theory, we might have time to do the work), other times, the new date is only a few weeks in the future. Since the evidence, witness list, and legal brief are due at least 15 days before the hearing, and since even a “simple” asylum case takes 20 or 30 hours to prepare, this is not nearly enough time. Worse, some cases are randomly advanced and placed on the docket after the evidence is due, and so by the time we have “notice” of the case, our evidence is already late.
Adding insult to injury, another common problem is that cases are still being cancelled at the last minute. And so we drop everything to prepare a case, only to have it postponed once all the work is done. Since this is all utterly unpredictable, it is impossible to prioritize our work or advise our clients.
Again, if this were only a few cases, attorneys could set aside other work and get the job done. But lawyers who do immigration law tend to have many cases, and we are seeing dozens and dozens of cases advanced with no notice. This is such a blatant and obvious abuse of due process that it is impossible to believe it is accidental. I might have expected this policy from the Trump Administration, which was hell-bent on restricting immigration by any means necessary. But as it turns out, President Biden’s EOIR is far worse than President Trump’s. Indeed, the current level of callousness would make even Stephen Miller blush.
The solution to these problems is so basic that it should not need to be said, but here it is anyway: EOIR should stop advancing and rescheduling cases without notice and without consideration for whether we have time to complete the work. Unless something changes, we can expect many noncitizens to be unfairly denied protection, immigration attorneys will leave the profession (or worse), and EOIR will become illegitimate. Let us hope that sanity and decency will soon return to the Immigration Courts.
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Ever wonder why Dems struggle to govern and often lose elections they should win?This is a pretty good example of how the Biden Administration, through cowardice, ignorance, arrogance, and failure to prioritize racial justice and immigrant justice are “shooting themselves in the foot, over and over!”
They are going into midterms where every vote counts. They need “all hands on board” in the human rights community to help bail them out of the gross failures of the White House, Garland, and Mayorkas to reestablish a fair, efficient, and properly robust system for legally admitting refugees and processing asylum claims at the borders and the interior. This, in turn, has empowered disingenuous nativists like DeSantis and Abbott to “play games with human lives.”
But, the Biden Administration “strategy” is to do everything possible to offend and drive a wedge between them and some of their most loyal and important groups of supporters — the immigration, human rights, and racial justice communities. (Make no mistake: The ongoing disaster at Garland’s EOIR disproportionally targets individuals of color.)
Garland seems to be impervious to his self-inflicted disaster at EOIR.I think that advocates are going to have to sue to bring his “Stephen Miller Lite” travesty of justice at EOIR to a grinding halt. Those are resources that could and should be used to help asylum seekers “orbited” around the country by DeSantis and Abbott.
I, for one, have been saying for a long time that Garland’s unfathomably horrible performance at EOIR is a threat to our entire justice system and to the future of our nation. Sadly, every day, Garland proves me right!
The real shame: It was all so preventable with just a modicum of competence and backbone from our failing AG!
🇺🇸 Due Process Forever! Merrick Garland’s deadly Clown Courts 🤡, Never!
