"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“Justice” Star Chamber StyleKate Voigt Senior Associate Director of Government Relations AILA PHOTO: AILA
In just four years, President Trump implemented radical changes that fundamentally compromised the integrity of the immigration courts. This policy brief explains the most critical and urgent changes President Biden should make to the immigration court system to ensure fairness and impartiality.
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Download the complete policy brief at the link.
Thanks, Kate!
Great report!
I hope you have arranged to have a copy of this delivered to Judge Garland, Vanita Gupta, and Lisa Monaco. As you know better than anyone, every day the current BIA remains empowered to grossly distort and intentionally misapply the law and dish out injustice is another day of outrageous abuse for migrants and psychological harm inflicted on their representatives.
It is also essential that the folks in MPP and others applying at our borders are represented and judged according to a properly fair and generous interpretation of our asylum laws (as you point out, no more “99% denial club” assigned to Central American cases). Along with bogus “no show” rates, artificially inflated asylum denial rates have been used as key parts of the false narrative to smear and dehumanize asylum applicants at our Southern Border.
🇺🇸⚖️🗽🧑🏽⚖️👨🏻⚖️👩⚖️Due Process Forever!
Thanks again for all you and your colleagues do, and best wishes,
SAN DIEGO (AP) — The Biden administration on Friday announced plans for tens of thousands of asylum-seekers waiting in Mexico for their next immigration court hearings to be allowed into the United States while their cases proceed.
The first of an estimated 25,000 asylum-seekers in Mexico with active cases will be allowed in the United States on Feb. 19, authorities said. They plan to start slowly with two border crossings each processing up to 300 people a day and a third crossing taking fewer. Administration officials declined to name them out of fear they may encourage a rush of people to those locations.
See photos from Mexico as the US immigration debate continues in a gallery at the end of this story
The move is a major step toward dismantling one of former President Donald Trump’s most consequential policies to deter asylum-seekers from coming to the U.S. About 70,000 asylum-seekers were enrolled in “Remain in Mexico,” officially called “Migrant Protection Protocols,” since it was introduced in January 2019.
On Biden’s first day in office, the Homeland Security Department suspended the policy for new arrivals. Since then, some asylum-seekers picked up at the border have been released in the U.S. with notices to appear in court.
. . . .
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Read the complete article and view the photo gallery of the “human side” of “Remain in Mexico” (a/k/a “Let ‘Em Die In Mexico”) at the link.
Earlier this week, Press Secretary Jen Psaki appeared to say it would take weeks if not months for the Administration to develop a plan to dismantle “Remain in Mexico.”
These are all individuals who have been previously screened and found to have a “credible fear” of persecution by a USCIS Asylum Officer. Many have been waiting for hearings for more than one year and have had their hearings postponed by EOIR time after time.
Additionally, many ofthe Immigration Judges assigned to the “Remain in Mexico” Program have notoriously high asylum denial rates, some approaching 100% denials.
I sure hope that the Pro Bono Bar is working with USCIS and EOIR to insure that all of these individuals are represented. As we know, that’s the key not only to insuring court appearances, but also to increasing the chances for success on the asylum application.
Vigorous representation of asylum seekers will also be the key to dismantling the aggressive anti-asylum, anti-due-process “jurisprudence” that the defeated regime attempted to implement at a “weaponized” EOIR. Where necessary, these cases must be litigated to the Courts of Appeals and used as examples of the pressing need for reform of the broken, unfair, and dysfunctional U.S. Immigration Courts.
For now, it remains unclear what will happen to newly arriving asylum applicants. Will they receive the “credible fear” screening to which they are legally entitled? (It appears that some families applying for asylum have been screened and released to await hearings in the U.S.) Or, will they be arbitrarily returned to harm’s way with no process at all, pursuant to Stephen Miller’s bogus “CDC border closing order” that has yet to be repealed?
Progress! But still lots of confusion at the border as a result of the defeated regime’s extralegal shenanigans!
Still, dismantling the mess Miller left behind shouldn’t be rocket science. Just common sense and using the existing legal tools to solve human problems, rather than intentionally aggravating them. But, it will take different folks (experts) in charge to make it happen!
Supremes Sign Death Warrants For Vulnerable Refugees, Trash Refugee Act of 1980Dumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under licenseA girl peers out from an encampment at the U.S.-Mexico border where she and several hundred people waited to present themselves to U.S. immigration to seek asylum. / Photo by David Maung
by Adolfo Flores and Hamed Aleaziz in BuzzFeed News:
After days of confusion about changes along the southern border, the Biden administration on Wednesday said immigrants should not try to enter the US because most will still be turned away under a Trump-era policy that has recently come under legal scrutiny.
. . . .
Confusion about who was being allowed into the US in recent days forced the administration to issue a stronger warning. Last week, reports of some families being allowed into the US after being apprehended at the border resulted in speculation that immigrants would no longer be immediately expelled and instead be allowed to fight their immigration cases from within the United States. In the Rio Grande Valley in South Texas, immigration advocates have reported seeing about 100 people a day released by Customs and Border Protection. In other parts of Texas, shelters have also seen increasing numbers of immigrant families, but it is not clear why.
Attorneys and advocates who work with immigrants along the border have been bombarded with phone calls and texts about whether they should try their luck at getting into the US. Erika Pinheiro, policy and litigation director with the immigrant advocacy group Al Otro Lado, said it was “incredibly disappointing” that the Biden administration has continued to expel immigrants under the CDC order.
“We know now that the CDC order prohibiting asylum processing at the border did not arise from public health concerns but rather was part of Stephen Miller’s efforts to dismantle the US asylum system and was implemented despite opposition from CDC leadership,” Pinheiro said, referring to one of Trump’s former senior advisers. “US expulsions of asylum-seekers, including infants, constitute plain violations of domestic and international laws meant to protect vulnerable refugees. CBP absolutely has the resources to process asylum-seekers in a safe and humane way.”
The turnbacks, known as expulsions, are legally different from deportations, which would mean an immigrant had actually undergone the immigration process and found to not be legally allowed to stay in the US. Critics say the government is using the public health orders as an excuse to turn back immigrants at the border.
. . . .
“While we recognize that the Biden administration has been saddled with a lot of bad policy and structural problems, it cannot continue the Trump administration practice of turning away people in danger based on illegal policies, such as the notorious and pretextual Title 42 policy,” said Lee Gelernt, an attorney with the ACLU.
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Read the full article at the link.
“Go suffer and die somewhere else, out of our sight,” might not be the best message for an Administration trying to re-establish its human rights and humanitarian leadership and credentials.Ever hear of the “St. Louis Incident?” It’s always easy to find a way to “just say no” to refugees — and the consequences are seldom pretty.
Those who won’t learn from history are destined to repeat it. Refugee and forced migration situations happen in the “here and now;” they can’t be “back burnered” — no matter how much policy officials might wish otherwise. In a forced migration situation, “doing nothing” is an action that produces consequences for both the forced migrant and those who ignore their plight.
There are many daily potentially deadly and dehumanizing consequences of continuing to ignore asylum laws and Constitutional due process for asylum seekers at our Southern Border.
One predictable one: Instead of turning themselves in at the border or to the Border Patrol shortly after entry, as had been happening until Miller & co. intervened, those seeking refuge apparently have gotten the message that our legal system is and remains a sham for them. Consequently, increasingly they are simply evading the Border Patrol and disappearing into the interior with no screening whatsoever — health, legal, or background. Also, by intentionally driving people out of the legal system, the Administration is totally blowing a chance to harness and build upon one of the most powerful known facts — represented individuals with asylum hearings scheduled show up for their hearings!
According to an article in today’s Washington Post, the estimated number of so-called “get always” — actually human beings seeking refuge — hit 1,000 on Sunday.
Sure, there are many aspects of this problem. But, it has been “out there” for nearly a year!
Sure seems to me that with the right experts in charge, including folks like Lee Gelernt and Erika Pinhero, this issue could and should have been addressed more constructively and with much more urgency by the Biden Administration by now. Why not harness the expertise and proven problem solving abilities of folks like Lee, Erika, and many other members of the New Due Process Army rather than fighting with and resisting them?
Instead, it looks like time and resources will continue to be wasted on forcing policy changes through litigation. Meanwhile, vulnerable asylum seekers and their families will continue to suffer as illustrated by this recent article from HuffPost about the human consequences for those caught up in the Government’s scofflaw border policies.
NOTE TO PRESIDENTIAL PRESS SECRETARY JEN PSAKI: Sorry, Jen, but those fleeing for their lives don’t generally respond well to “don’t come right now, we don’t want you” messages, particularly from folks who have never been in that situation themselves. It’s actually pretty insulting to think that folks fleeing to the U.S. 1) aren’t smart enough to know the dangers involved; 2) don’t realize that the the U.S. Government doesn’t want them; and/or 3) have choices about their travel as Jen and her buddies might have when planning a summer vacation.
As one of my esteemed colleagues once told me: “Desperate people do desperate things.” What about people who keep repeating the same policy mistakes over and over while expecting different results and failing to grasp either the absolute urgency or the human side of forced migration issues? It’s sort of like going to the emergency room with a burst appendix and being told, “Why don’t you just sit in the waiting room until we doctors figure out what to do? Get back to you later!”
Somewhere out there, Stephen Miller must be gloating about how he totally outsmarted and outflanked the Biden Team!
🇺🇸⚖️🗽Due Process Forever! Oh, when will they ever learn, when will they learn?
PWS
02-11-21
UPDATE: THE CONTINUING REAL TRAUMA CAUSED BY THE “REMAIN IN MEXICO PROGRAM” (A/K/A “LET ‘EM DIE IN MEXICO”) WHILE THE BIDEN ADMINISTRATION “STUDIES” THEIR NEXT MOVE:
Emily Green writes in Vice, as reposted in ImmigrationProf Blog:
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsDan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Dan Kowalski reports for LexisNexis Immigration Community:
“Diaz de Gomez claims that she received repeated death threats from a gang in Guatemala after she and her family witnessed a mass killing by gang members and refused to acquiesce to the gang’s extortion and other demands. … [W]e reject the Board’s “excessively narrow” view of the nexus requirement, and conclude that Diaz de Gomez established that her familial ties were one central reason for her persecution. … We also hold that the record conclusively establishes that the Guatemalan government was unable or unwilling to control Diaz de Gomez’s persecutors. We therefore grant the petition for review and remand for the Board to reconsider Diaz de Gomez’s claims in light of our holdings.”
So, let’s compare the 4th Circuit’s view with the most recent abomination and intentional misconstruction of the “unable or unwilling to control” doctrine by totally unqualified political hack Jeffrey Rosen, then impersonating the “Acting Attorney General” and issuing clearly unconstitutional “precedents” to implement the defeated regime’s racially biased, misogynistic, anti-asylum agenda.
Talk about “crimes against humanity!” ☠️🏴☠️ Certainly, every current civil servant who supported and advanced this bogus designation should be held accountable.
Kakistocracy Kills: Obviously, with better qualified judges, competent representation, and a fair system operated in accordance with due process and a proper interpretation of asylum laws, many of those now being arbitrarily, capriciously, and unlawfully turned back at our borders would be entitled to our legal protection. This is life or death, not a problem that can “wait till tomorrow” to be addressed! Every day that the patently inadequate “judges” currently on the BIA remain in their positions means more injustice, trauma, and even death for legitimate asylum seekers!
Make no mistake: Democracy may have survived this year, but President Biden and Vice President Harris were elected despite, not thanks to, weakened electoral systems. Together with the Democratic Congress, they now have the opportunity to implement reforms that reaffirm our nation’s promises that our country represents and works for everyone. We as Democrats must act before it is too late.
Our democratic system faces extraordinary threats today because of sustained attacks from Republican leaders who throw up roadblocks to voting and, among the worst actors, stoke the flames of white supremacy and hyper-nationalism to cling to power. There can be no clearer example than the covid-19 pandemic. The deaths of more than 450,000 people in the richest country in the world are symptomatic of a democracy in crisis and a political system that rewards cronyism over competence. Despite strong public support for the Centers for Disease Control’s work, the Affordable Care Act, and other economic justice and safety-net policies that could save lives, millions nevertheless continue to contract the disease without adequate access to health care.
No thinking person can deny that the communities of color disproportionately suffering and dying from this pandemic are also the people whose votes — and ability to hold failed leaders accountable — have been continuously suppressed.
The pandemic has been a collision of tragedy and corroded institutions, and the challenge is in how we respond. We can either engage in collective amnesia about what we have just lived through, and leave an unaccountable government in place, or we can rise to meet this moment by fixing the broken social compact. Defeating Trump was not enough. Meaningful progress on health care, racial justice and the economy requires aggressive action on voting rights, partisan gerrymandering and campaign finance.
One of the first steps must be an overhaul of the Senate filibuster, which has long been wielded as a cudgel against the needs of millions who struggle. Today, the parliamentary trick creates a more sinister threat to our nation: the ability of a minority of senators, who represent 41.5 million fewer people than the Senate majority, to block progress favored by most Americans.
Democrats in Congress must fully embrace their mandate to fast-track democracy reforms that give voters a fair fight, rather than allowing undemocratic systems to be used as tools and excuses to perpetuate that same system. This is a moment of both historic imperative and, with unified Democratic control of the White House and Congress, historic opportunity.
The agenda to restore democracy also includes passing the For the People Act to protect and expand voting rights, fight gerrymandering and reduce the influence of money in politics; the John Lewis Voting Rights Advancement Act to restore the full protections of the 1965 Voting Rights Act; and the Protecting Our Democracy Act to constrain the corruption of future presidents who deem themselves above the law. These landmark bills have broad-based support, and would have passed long ago were it not for obstructionist leaders who fear losing their own influence if the American people have more power of their own.
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The Trump GOP lies, insurrections, and blatantly false claims attempting to undermine the very clear Biden-Harris victory have been a smokescreen for the real voting problems — the unrelenting efforts of the GOP — “The Party of the New Jim Crow” — to suppress the votes of Americans of color. Read the rest of Abrams’s op-ed at the link.
And, as Abrams cogently points out, one reason for the denial, downplaying, and maliciously incompetent mishandling of the pandemic by the Trump regime was that so many of the victims were among communities of color — those they never cared about and whose humanity they continuously tried to deny and disparage. Death is a great way of disenfranchising minority voters. Not to mention a little fear and intimidation thrown in for a good measure.
There is a very clear connection between the dehumanization of asylum seekers and other migrants and the disenfranchisement of voters of color. It’s all part of “Dred Scottification” — a disgraceful practice sanctioned by none other than the GOP’s Supremes’ majority!
Our future as a nation depends on Judge Garland, Vanita Gupta, and their incoming team at DOJ “connecting the dots” — beginning with dismantling and replacing the White Nationalist nativist kakistocracy at EOIR. Immigrants’ rights are civil rights are human rights!The GOP actually “gets” that (in a purely negative way)! Will the Dems finally show that they do too!
From Justice Elena Kagan’s dissent in South Bay United Pentecostal Church v. Newsom:
I fervently hope that the Court’s intervention will not worsen the Nation’s COVID crisis. But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a State’s pandemic response. But the Court forges ahead regardless, insisting that science-based policy yield to judicial edict.
Justice Elena Kagan Photo: Mike Ball Creative Commons License
Ruth Marcus writes about U.S. District Judge Ketanji Brown Jackson in WashPost:
. . . .
Still, Jackson, named to the district court by Obama in 2013, brings to the bench an intriguing — and for the Democratic Party’s restless progressives, attractive — piece of career diversity as well: experience as a public defender.
No current Supreme Court justice has the perspective of having been a public defender, representing indigent defendants, although several — Justices Samuel A. Alito Jr., Sonia Sotomayor and Brett M. Kavanaugh, in his role as associate independent counsel — have prosecutorial experience.
For Jackson, the daughter of two public school teachers (her father later became a lawyer), the criminal justice system has an unusually personal wrinkle as well: Her uncle was convicted of a low-level drug crime when she was a senior in high school, and was sentenced to life in prison under a draconian three-strikes law. (He had been convicted previously of two minor offenses.) He ended up receiving clemency from Obama after serving three decades.
She also brings the real-world perspective of a working mother. In a remarkably candid speech at the University of Georgia in 2017, Jackson described the challenges she encountered juggling private practice at a major law firm, marriage to a surgeon and motherhood to two young daughters.
“I think it is not possible to overstate the degree of difficulty that many young women, and especially new mothers, face in the law firm context,” she observed. “The hours are long; the workflow is unpredictable; you have little control over your time and schedule; and you start to feel as though the demands of the billable hour are constantly in conflict with the needs of your children and your family responsibilities.” How refreshing to hear from a self-confessed non-Superwoman.
. . . .
But a more obscure ruling, involving William Pierce, a deaf D.C. man who was imprisoned for 51 days after a domestic dispute, may offer more insight into Jackson’s belief in law as a mechanism for achieving justice. Corrections officials did nothing to accommodate Pierce’s disability, as the law requires, ignoring his repeated requests for a sign-language interpreter.
Jackson assailed prison officials’ “willful blindness regarding Pierce’s need for accommodation.” She said it was “astonishing” for D.C. to claim that it had done enough, when “prison employees took no steps whatsoever” to figure out how to help him. And she took the unusual step of ruling for Pierce even before trial.
You can learn a lot about a judge by the way she handles the biggest-profile cases, involving those at the highest levels of government. But perhaps the more revealing test is how she applies the law to help those with the least power and the greatest need for justice.
U.S. District Judge Ketanji Brown Jackson Washington D.C. Official Photo Creative Commons License
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Read the full articles at the above links. “Willful blindness” and intentional abuses intended to “dehumanize” are daily occurrences in our warped and broken “immigration justice system” as almost any immigration/human rights/civil rights lawyer could tell you. It just operates below the radar screen, on the border, or in foreign countries (to which vulnerable humans seeking legal refuge are arbitrarily and capriciously “orbited”) where the very human trauma, torture, sickness, desolation, despair, and death are “out of sight, out of mind” to most Federal Judges and Justices.
Yes, eventually journalists and historians will document for posterity the disastrous human rights abuses in which the Federal Judiciary is complicit. But, by then it will be far too late for those who have suffered and died while those in black robes shirked their legal and moral duties!
Judge Jackson understands exactly what’s missing from today’s all too often elitist, non-diverse, non-representative Federal Judiciary (including much of the Immigration Judiciary) who are tone-deaf to, and insulated from, responsibility for the human trauma and injustice caused by their bad decisions.
Additionally, I can assure Justice Kagan that vulnerable refugees and asylum seekers (including children) have died and unnecessarily suffered lifetime trauma from the Supremes’ willful failure to enforce the Constitution against overt Executive tyranny in cases involving the “Remain in Mexico” (“Let ‘Em Die In Mexico”) Program, return of asylum seekers to torture and death with no due process whatsoever, and the “Muslim Ban.”
Indeed, the Supremes’ majority’s abdication of responsibility in the latter case led directly to Trump’s eventual insurrection against the Capitol. He was assured early on by Roberts and others that he was above the Constitution, uncountable, and exempt from normal conventions governing human decency and treatment of the most vulnerable among us in the 21st Century. I/O/W, “Dred Scottification” of the “other”— a 21st Century “Jim Crow Regime” — was A-OK with the GOP Supremes’ majority “forever insulat[ed] . . . from responsibility for [their] errors.”
Today in particular, our nation still struggles with the sense of impunity and unaccountability improperly conferred by a dilatory Supremes’ majority on their party and its leader. Insurrection, violence, attempted overthrow of democracy — it’s all “no problem” to a tone-deaf Supremes’ majority unconcerned with the fate of our democracy.
After all, the Trump’s magamoron rioters weren’t storming their marble halls — just those of the supposedly co-equal branch across the street. But, what might have happened if they had actually stood up against Trump? He might have identified them as “the enemy” and sent his rioters their way! Worth thinking about, Oh Cloistered Ones far removed from the pain and suffering you help cause and countenance!
A better judiciary 🧑🏽⚖️👨🏻⚖️👩⚖️ for a better America! Bring on the “practical scholars” and those with actual experience representing the mostly vulnerable among us (asylum seekers are a prime example) in court.
Our Symposium’s focus will be on the practical aspects of immigration law and the current policy debates surrounding the field. Our goal is to present a compelling CLE program for immigration and non-immigration practitioners alike, as well as to provide an engaging educational experience for current law students. This year’s theme is “The Road to Rehabilitation: Reconnecting with Humanity.”
Attendees will have the opportunity to hear a variety of notable immigration attorneys, leaders, and scholars speak on current issues within the field of immigration law in the United States.
Our event is made possible through the generous sponsorship of Terry Bassham (’85) & Zulema Carrasco Bassham.
Featured Speakers and Panelists
Eduardo Beckett
Immigration Attorney featured in “Immigration Nation” Docuseries on Netflix
Shaw Drake
Staff Attorney and Policy Counsel, Border and Immigrants’ Rights, ACLU of Texas
Celina Moreno
President and CEO, Intercultural Development Research Association (IDRA)
Eitan Peled
UNICEF USA Child Migration & Protection Program Manager
Cristina Rodriguez
Leighton Homer Surbeck Professor of Law, Yale Law School
Teresa Romero
President, United Farm Workers of America
Erica Schommer
Clinical Professor of Law, St. Mary’s University School of Law
Karla Vargas
Senior Attorney, Texas Civil Rights Project
Register Today. We Look Forward to Seeing You.
This CLE event is pending approval by the State Bar of Texas for 5 CLE credit hours (including 1 hour of ethics).
Registration is now open and available through February 26:
Attorney registration $85
Government employee and non-attorney registration $55
Immigration volunteer registration $25
Student registration $10 (scholarships available for St. Mary’s School of Law students only; please email lawscholar@stmarytx.edu from your St. Mary’s email address telling us why you would like to attend)
St. Mary’s School of Law faculty/staff and Scholar Volume 23 member registration is free
The Scholar: St. Mary’s Law Review on Race and Social Justice is a student-run law review at St. Mary’s University School of Law in San Antonio, Texas. The goal of The Scholar is to give a voice to the voiceless and the vulnerable in our society. The Scholar publishes three issues per volume on a variety of legal topics through the lens of race and social justice. Additionally, The Scholar hosts an Immigration Symposium annually during the spring semester.
Professor Cristina Rodriguez is the co-author (with Professor Adam B. Cox of NYU Law) of the widely acclaimed book The President & Immigration Law. Recently she worked on EOIR issues for the Biden-Harris Transition Team.
Shaw Drake is Staff Attorney & Policy Counsel, Border & Immigrants’ Rights, ACLU of Texas. He was one of my all-star Refugee Law & Policy students @ Georgetown Law and a Charter Member of the New Due Process Army (“NDPA”).
Last year, I was on this outstanding program. It was one of my last “in person” appearances before COVID restrictions set in.
“Willian Rubio Barahona petitions for review of a decision by the Board of Immigration Appeals (“BIA”) upholding the denial of his request for asylum and withholding of removal, based on a finding that serious reasons exist to believe Barahona committed a serious nonpolitical crime outside the United States. We hold that the “serious reasons for believing” standard requires a finding of probable cause before an alien can be subject to the mandatory bar set forth in 8 U.S.C. § 1158(b)(2)(A)(iii), 8 U.S.C. § 1231(b)(3)(B)(iii), and 8 C.F.R. § 1208.16(d)(2). Because no such finding was made below, we reverse and remand for further proceedings.”
“Plaintiff-Appellant New York Legal Assistance Group (“NYLAG”) seeks access to non-precedential “unpublished opinions” issued by Defendant-Appellee the Board of Immigration Appeals (“BIA”) in immigration cases. NYLAG wants to consult the opinions, which are not routinely made available to the public, to aid in its representation of low-income clients in removal and asylum proceedings. NYLAG asserts that the BIA’s failure to make the opinions publicly available violates the agency’s affirmative obligation under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(2), to “make available for public inspection in an electronic format final opinions . . . [and] orders, made in the adjudication of cases.” In this action under FOIA’s remedial provision, 5 U.S.C. § 552(a)(4)(B), which authorizes district courts “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant,” NYLAG seeks an order requiring the BIA to make available to the public all unpublished opinions issued since November 1, 1996, as well as future unpublished opinions. The United States District Court for the Southern District of New York (Paul A. Crotty, J.) dismissed the case, concluding that FOIA’s remedial provision does not authorize district courts to order agencies to make records publicly available. We conclude that FOIA’s remedial provision authorizes the relief NYLAG seeks. FOIA’s text, read in light of its history and purpose, empowers district courts to order agencies to comply with their affirmative disclosure obligations under 5 U.S.C. § 552(a)(2), including the obligation to make certain documents publicly available. We therefore VACATE the judgment of the district court and REMAND for further proceedings consistent with this opinion.”
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Why would the BIA even want to withhold unpublished decisions or bar someone from asylum based on less than probable cause? Why would anyone want to further impede the already difficult task of representing the most vulnerable in Immigration Court? What if the resources wasted on litigation to diminish due process were “repurposed” to working with NYLAG and other pro bono all-stars to achieve universal representation? Much of what EOIR does these days makes little or no sense unless looked at from a White Nationalist nativist perspective.
When will it end? The Biden Administration proclaimed a “new day” on immigration and human rights issues. But, you sure can’t tell from the junk continuing to come out of the BIA and being defended in court by OIL. No matter how welcome the change in tone from the President is, it requires concerted action and getting better judges, administrators, and litigators in place to actually change policies, produce fairer results, and save lives!
Congrats to Allison Heimes and the good folks at Fair Trials Americas.
Also, congrats to my former Georgetown Law superstar, Arlington Intern, & NY JLC, Elizabeth Gibson (“The Gibson Report”) and her colleagues at the NY Legal Assistance Group!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
🇺🇸🗽⚖️Due Process Forever! We need “a little less talk and a lot more action!”
A recent report from the Urban Institute found that more than 1 in 6 adults in immigrant families reported avoiding a government benefit program or other help with basic needs last year because of immigration concerns. This chilling effect was so persistent that households where every foreign-born member had already been naturalized said they’re avoiding benefits. Just to be safe.
Despite an ongoing national crisis with record levels of illness, financial stress and hunger.
“More than once, pediatricians have told us they’ve had children come in so sick and so malnourished that [Child Protective Services] had been called on these families,” said Cheasty Anderson, director of immigration policy and advocacy at Children’s Defense Fund-Texas. Struggling parents believe they’re “on the horns of this dilemma,” she said. They think they must choose between accepting food and medical assistance for their children — or face possible deportation, and thus separation from their children.
That’s what the Trump administration has conditioned them to believe.
Given trends so far — particularly those declines in childhood immunizations — advocates worry that the “public charge” rule might discourage immigrants from getting themselves or their children vaccinated against covid-19. Which would affect the well-being of not just these immigrant families, of course, but their surrounding communities as well. Some advocates have expressed frustration that the Biden administration hasn’t immediately rescinded the rule. Formal repeal is likely a ways off, assuming the administration goes through the usual (cumbersome, protracted) rulemaking process.
But even if the order that Biden signed this week was really more about marketing than action, that pro-immigrant P.R. is valuable. After all, “most of the original damage was done by messaging,” as the Center for Law and Social Policy’s executive director, Olivia Golden, told me. It can, and should, be undone by the same means.
If we want immigrant families to stay healthy — and keep their nonimmigrant neighbors healthy, too — the government needs to put better policies on the books. But it needs to rebuild immigrants’ trust in those policies, too. That part may ultimately be harder.
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Read Catherine’s full op-ed at the link.
Using government resources to undermine public confidence in government. Could it get any stupider and more evil?
But, let’s not forget that the bureaucratic kakistocracy at DHS, DOJ, and other agencies happily carried out and promoted the Trump/Miller bogus, racist, anti-immigrant narratives. That’s going to make it challenging for Secretary Mayorkas and incoming AG Garland to change the policies, change the messaging (if you want to see how brutally corrupt and manipulative the DHS “PR Kakistocracy” was, check out the highly acclaimed documentary “Immigration Nation”), and change the attitudes and the reality at the “retail level” — the DHS field offices and the Immigration Courts.
But it’s a challenge they must meet and conquer — for the sake of our nation.
Also, it’s worth remembering that the Supremes’ GOP majority dishonestly bent the rules to interfere with lower Federal Court rulings that had properly blocked this invidious, White nationalist, nativist attack on American communities — targeting communities of color and low-income communities. Just another example of how the Supremes’ elitist right wing majority operates outside reality (the factual record of comments from experts opposing this bogus “rule” was simply overwhelming and basically ignored by the Trump regime and the Supremes’ majority) and without regard or understanding of the human and public policy consequences of their skewed “Dred Scottifying” rulings. They are also above accountability, which makes their abuse of the most vulnerable among us even more disgusting and cowardly.
I think it’s highly unlikely that we’d see the same tone deaf misapplication of the law if it were the Justices’ kids, grandkids, neighbors, and friends unnecessarily suffering from illness and malnutrition aggravated by racist government policies. No more Justices and Federal Judges who have spent their adult lives studiously ignoring the rights and problems of those struggling to get by in a society where the rules are designed to protect the White ruling class rather than all persons living here.
It’s very clear that for GOP Justices, most of the time, only some lives and rights matter and are worth protecting. The rest of humanity can “go pound sand” as far as they are concerned.
For Pete’s sake, guns and corporate entities get more protection from the Roberts’ Court than do asylum seekers whose lives are at stake! As Justice Sotomayor says: “This is not justice.” The question remains of why we have Supremes who all too often promote injustice and fail to resist evil?
Biden will welcome 125,000 refugees to the U.S. in first fiscal year
By Associated Press and Nikki Schwab, Senior U.S. Political Reporter For Dailymail.com at 10:10 PM UTC on 04 February 2021
President Joe Biden announced Thursday his intention to massively increase the cap on annual refugee admissions to the United States
At the State Department, he said he would sign an executive order with the aim of 125,000 refugees coming to the U.S. in his first fiscal year
Refugee admissions fell to a historical low under President Donald Trump, with the current cap sitting at 15,000
President Joe Biden on Thursday announced his intention to massively increase the cap on annual refugee admissions to the United States, which fell to a historical low under Donald Trump.
In line with a campaign promise, Biden said he would set at 125,000 the cap on admissions as part of the country’s refugee resettlement program, against the current 15,000.
‘We offered safe havens for those fleeing violence or persecution’ in previous years, when America’s ‘moral leadership on refugee issues’ encouraged other nations to open their doors as well, Biden said.
‘So today I’m approving an executive order to begin the hard work of restoring our refugee admissions program to help meet the unprecedented global need,’ he added.
‘It’s going to take time to rebuild what has been so badly damaged, but that’s precisely what we’re going to do.’
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Read the complete article at the link.
One of the most damaging effects of the Trump regime’s cowardly and counterproductive “war on refugees” was the withering and disappearance of the premier “resettlement infrastructure” run by NGOs. It was one of many things that made our refugee program highly efficient.
The cruelty and stupidity of a White Nationalist regime that intentionally “broke” many of the functioning parts of our society while pouring money down the drain on a far right racist agenda simply can’t be overestimated.
Thanks to President Biden for restoring humanity, common sense, and the national interest to our democracy!
Refugees have been a key part our national success. Moreover, as President Biden said in his inaugural address, “leading by example” is essential to foreign policy. If we want other developed nations to participate in resettling refugees, our own robust programs and willingness to help others in need will go a long way toward encouraging and increasing constructive responses to mass migration situations.
That is why the Justice Department must also identify categories of non priority immigration court cases that can be dismissed now. One obvious category is the estimated 460,000 cases — an astounding 37 percent of the current backlog — that involve individuals who could qualify, under current law, for legal status. It makes little sense to waste limited enforcement resources by having immigration prosecutors and judges spend years trying these cases in court, when trained adjudicators at another agency, U.S. Citizenship and Immigration Services, can handle them more efficiently through paper applications.
Another category of cases that should be removed from judges’ dockets are the 200,000 cases that have been pending for more than five years. By definition, these old cases are ones that prosecutors and judges have deemed low priorities.
Biden has noted that the Obama administration “took too long” to begin fixing the nation’s immigration system. His initial steps are a promising indication that he intends to move swiftly to build the fair, humane and functional immigration enforcement system he has promised. To guarantee results, the new president must use his first 100 days to identify and remove the non priority cases bottlenecked in America’s immigration courts.
Greg Chen is senior director of government relations for the American Immigration Lawyers Association. Peter L. Markowitz is a professor of law at the Benjamin N. Cardozo School of Law where he directs the Kathryn O. Greenberg Immigration Justice Clinic.
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Read the full article at the link.
Presto: 1.3 million million docket becomes 640,000. And that’s just the beginning!
Here are some more low-budget, immediate action “No-Brainers:”
Vacate all of the anti-asylum, backlog expanding “precedents” issued by Sessions, Whitaker, Barr, and the BIA over the past four years (immediately returning needed flexibility and some degree of fairness to the system);
Reassign the current BIA and replace with expert judges committed to due process who know how to grant asylum and establish precedents on how “clear grants” can be easily identified, properly documented, and consistently adjudicated (eliminate “refugee roulette” — largely a product of an “any reason to deny culture” combined with defective judicial selection, poor training, and lousy leadership);
Return all asylum cases denied over the past four years to the USCIS Asylum Office for adjudication without all the anti-asylum precedents and dehumanizing policies of the Trump regime;
Work with the private bar and NGOs to increase representation with universal representation as the goal;
Eliminate inane and demeaning “production quotas” for EOIR judges (thus placing the emphasis back on careful decision making, thoughtful analysis, and getting the correct result the first time — also restoring IJs’ ability to schedule and manage dockets).
Realistically, 500 Immigration Judges can complete approximately 250,000 to 300,000 cases annually. A combination of 1) the “Chen-Markowitz plan;” 2) the “Schmidt Addendum;” and 3) the more sensible and realistic enforcement priorities initiative already underway at DHS will have EOIR “operating in real time” (and, significantly, in the national interest) in no time at all — without legislation or busting anyone’s budget!
Of course, these initial steps are just the “tip of the iceberg” of the reforms necessary at EOIR, leading to the fulfillment of the vision of “through teamwork and innovation becoming the world’s best tribunals guaranteeing fairness and due process for all.”Congress must at the earliest opportunity create an independent Article I Immigration Court to institutionalize and preserve these reforms and “best practices.”
But, in the meantime, lives and our national interests are imperiled by the current deadly (and wasteful) dysfunction @ EOIR. There is every reason to fix the system now! And, it’s not “rocket science” — just expertise and common sense.
Which leads me to another obvious point — Members of the NDPA like Chen, Markowitz, Dean Kevin Johnson, Michelle Mendez, Associate Dean Professor Jaya-Ramji Nogales, Professor Phil Schrag, Professor Michele Pistone, up and coming all-star Lauren Wyatt, Judge Dana Marks and other leaders of the NAIJ, experienced due process oriented Immigration Judges like my former BIA colleague Judge Noel Brennan, and many others like them should be in charge of this effort to reform EOIR and create a model court system.
The Biden Administration must apply the same principles to EOIR Reform that they have elsewhere: Get rid of the “middlemen” and “bring in the experts” to run the show! Articles, papers, speeches, TV interviews, encounter groups, studies, and blogs are great — but putting the right folks in the right places to take action to solve problems is much better and more efficient! Put the folks with the answers in charge!
That would not only create a “laboratory of best judicial practices” that could be applied to the floundering Article III Judiciary, but also would provide the Biden Administration with source of well-trained progressive candidates for the Article III Judiciary. Leadership, including “leading by example” is critical in any well-functioning judicial system; it has been sorely lacking at EOIR (and in the Article III Judiciary) over the past four years. As the Biden Administration has already recognized, the only real leadership among the Federal Judiciary has come from “resistors” like Judge Ashley Tabaddor, now at USCIS.
Incidentally, in her current position at USCIS, Judge Tabaddor is perfectly placed to work with EOIR in carrying out the “Chen-Markowitz plan” to get cases of those potentially eligible for residence out of the EOIR backlog and into USCIS where they can be handled more efficiently.
To state the obvious, EOIR needs more “headquarters personnel” like a hole in the head! What you need is a streamlined staff of better-qualified individuals across the board: real judges and professional judicial administrators who will restore due process and get this system functioning again — sooner rather than later.
Consequently, there is no apparent need for additional “counsel” in his office right now. To say the least, this ill-timed “example of the “Continuing Clown Show at EOIR”🤡 has already become a “internet mini-sensation!” At the very least, you should wait until Risch’s replacement arrives and let her or him make the selection.
Undoubtedly, a reformed IJ tenure program (considering not only discipline but also retention of current judges and improved professional training) that is transparent, fair, and effective is a badly needed and long overdue improvement. But, hiring another bureaucrat (on short notice, which is likely to produce a less than “best qualified” candidate) isn’t the answer.
That being said, I’ve already heard from a number of private practitioners who would love to be in charge of “professional responsibility for Immigration Judges.” They have lots of great ideas for improvements and a number of places where they would start the process immediately, if not sooner!
Vanita Gupta Nominee for Associate AG Photo: Brookings Institution, Paul Morigi, Creative Commons LicenseKristin Clarke Nominee for Assistant AG, Civil Rights Photo: NAACP, Creative Commons License
Meet the courageous, dynamic , outspoken, new human-rights-oriented leaders looking to fulfill the Constitution and make “equal justice for all” a reality @ the DOJ and for America.Sam Levine reports for The Guardian.
On her last day at the justice department in 2017, Vanita Gupta considered taking a picture as she left the agency’s headquarters on Pennsylvania Avenue. But she decided against it. Gupta, the outgoing head of the department’s civil rights division, once described as the “crown jewel” of the agency, didn’t really want to remember the moment, she told a reporter who was shadowing her for the day.
Jeff Sessions, then the incoming attorney general, was poised to unwind much of the painstaking progress Gupta, 46, and her colleagues had spent the last four years building. It was no secret that Sessions opposed the kind of court agreements the justice department used to fix unconstitutional policing policies across the country (“dangerous” and an “exercise of raw power” in Sessions’ eyes). Nor were there any illusions that Sessions would try very hard to enforce the Voting Rights Act, already on its last legs after the supreme court gutted a key provision in 2013 (Sessions described the landmark civil rights law as “intrusive”).
Many of those concerns came to pass. Trump’s justice department not only did little to enforce some of the country’s most powerful civil rights protections for minority groups, but in several cases it opposed them. It filed almost no voting rights cases and defended restrictive voting laws, tried to undermine the census, challenged affirmative action policies, sought to roll back protections for LGBTQ+ Americans, and limited the use of consent decrees to curb illegal policing practices. Gupta took a job as the head of the Leadership Conference on Civil and Human Rights, a coalition of civil rights groups across the country, where she became one of the leading figures pushing back on the Trump administration.
Joining Gupta in that effort was Kristen Clarke, a 47-year-old former justice department lawyer who leads the Lawyers’ Committee for Civil Rights Under Law, founded in 1963 to help attorneys in private practice enforce civil rights. As her group filed voting rights and anti-discrimination lawsuits across the country over the last few years, Clarke spent hours nearly every election day briefing journalists on reports of incoming voting problems. Reports of long lines, voting machine malfunctions, translator issues – no problem was too small. The monitoring sent a message that civil rights groups would move swiftly against any whiff of voter suppression.
Now, after years of leading the fight for civil rights from outside the justice department, both women are poised to return to its top levels, where they can deploy the unmatchable resources of the federal government. Last month, Joe Biden tapped Gupta to serve as his associate attorney general, the No 3 official at the department, and Clarke to lead the civil rights division. If confirmed by the Senate, Gupta would be the first woman of color to be the associate attorney general; Clarke would be the first Black woman in her role.
“They are both independently legit civil rights champions with a long deep history,” said Justin Levitt, who worked with Gupta at the justice department and knows both women well. “They’re going to make a really spectacular, really powerful team.”
Picking two career civil rights lawyers for two of the top positions at the justice department sends an unmistakable signal that civil rights enforcement will be a top priority for the agency over the next four years. Civil rights leaders said they could not remember a prior administration in which two of the department’s highest positions were filled by civil rights attorneys, especially two such as Clarke and Gupta.
“It’s going to be really important and energizing and exciting to be able to be in conversation and discussion with people who understand the department’s role in civil rights enforcement,” said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund (LDF), who has worked closely with both women. “But it’s also going to be exciting, and as a matter of resources, to have the department actually do civil rights enforcement.”
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Read the rest of these inspiring American profiles 🇺🇸🌟at the link. Don’t you think we need the “Vanita & Kristen” of immigration and human rights to lead the restoration effort at EOIR and the BIA?
Here are the “keys to success:”
Immigrants’ rights are human rights;
Human rights are civil rights;
There can be neither racial justice nor equal justice in America until migrants are not only fully recognized as “persons” under our Constitution, but actually treated as such (as opposed to the active “dehumanization” and “Dred Scottification” of migrants and persons of color by the Trump regime and the GOP majority on the Roberts’ Court);
You can’t possibly “win the game” with the same players who “batted for the White Nationalists” over the past four years.
And, speaking of “Jewel in the Crown.”👑 That’s exactly how many of us in the “Round Table of Former Immigration Judges” 🛡⚔️ once viewed EOIR. The “EOIR Vision” was: “Through teamwork and innovation be the worlds’s best tribunals, guaranteeing fairness and due process for all.”
So, Vanita, and I hope Kristen also, can imagine the anger and determination to fight with which our Round Table viewed the dismemberment of due process and weaponization of the Immigration Courts under Sessions, Whitaker, and Barr. From aspiring to be the “world’s best tribunals” to “Star Chambers” and a grotesque, dysfunctional national disgrace!
On the plus side: Both Gupta and Clarke are the daughters of immigrants. Both have written and advocated for immigrants’ rights as part of their civil rights leadership.
Caution. Obama Attorneys General Eric Holder and Loretta Lynch were “facially aggressive” on protecting voting rights and police reforms. Yet, at the same time they: helped DHS set deportation records; allowed EOIR to spiral toward dysfunction (to a large extent through failure to procure and properly manage resources and an indolent judicial hiring program that was both “closed and non-diverse in nature” and glacial in operation (2 years to fill an average judicial vacancy!)); supported “baby jails,” the “family gulag,” and toddlers representing themselves on asylum cases in Immigration Court; looked the other way as private prisons treated asylum seekers and migrants worse than convicted criminals; and “went along to get along” with the Administration’s misuse of the Immigration Courts as (a highly ineffective) deterrent to applications for asylum.
Sessions, Whitaker, and Barr might have been the “Kings of Aimless Docket Reshuffling” at EOIR that helped produce an astounding 1.3 million case plus “backlog.” But, it started in earnest under the Obama Administration.
That’s what I mean by the “two headed policy:” arguing for voting rights for minorities in one courtroom while simultaneously ignoring the human and civil rights of migrants in the next courtroom. Arguing for the right to vote in one case, while arguing (apparently with a straight face) that toddlers who can’t speak English have no right to legal representation in the next case.
Not only that, but with the Biden Administration apparently looking to rapidly fill upcoming Article III vacancies, the Obama DOJ’s mishandling of the Immigration Courts has deprived President Biden of the chance to draw from a diverse group of younger, progressive Immigration Judges whose practical scholarship, commitment to human rights and due process, courage, and proven ability to function in a “high stress” judicial setting would make them strong candidates for the now-reeling Article III Judiciary.
That’s certainly not to say that there aren’t some potential progressive candidates for the Article III Judiciary among today’s present, and particularly recently “retired,” (some essentially “forced out” at relatively young ages as a “matter of conscience”) Immigration Judges. There are! But, only a fraction of the number there would have been if the Obama Administration had taken the Immigration Courts with proper seriousness.
And, that’s leaving aside the lives that could have been saved and better jurisprudence that could have been “institutionalized” with better, merit-based, judicial selections at EOIR during the Obama Administration!
I sincerely hope that Vanita Gupta and Kristen Clarke can help Judge Garland get the job done at Justice. The “human rights/immigration world” will be cheering for you. Getting some of the folks from the New Due Process Army(“NDPA”) into key positions at EOIR and the rest of the DOJ will be an “early signal” of whether or not “Team Garland gets it.”
Removing McHenry at EOIR was a good start! But, it’s only a small step in what has to be done to make racial justice and immigrant justice a reality at the DOJ. The “brooms and plungers” 🧹🚽 need to come out, and the sweeping and plunging has to be quick and widespread.
On the other hand, there is “no patience for another Obama Administration” out here in the real world. Every day, EOIR and DOJ are killing folks, ruining lives, and abusing the brave and dedicated attorneys of the NDPA! If the rhetoric doesn’t produce short term results and drastic improvements, you can expect the same type of aggressive litigation from the NDPA that stopped the defeated regime from completely destroying the U.S. justice system.
On Jan. 21, minibuses of contractors in hi-viz vests were still bumping along the dirt road they had built for themselves in the high desert village of Campo, California, an hour east of San Diego. Less than 24 hours before, the newly inaugurated President Joe Biden had signed an executive order declaring that “the national emergency declared by Proclamation 9844 … is terminated and that the authorities invoked in that proclamation will no longer be used to construct a wall at the southern border.”
The Trump administration’s border wall project arrived in Campo in early 2020. The area is rugged and rolling, studded with oak trees and sagebrush. It couldn’t be more different from the bustling beaches and boardwalks most people associate with San Diego.
Into this landscape came contractors who were working with dynamite and heavy machinery 24 hours a day, with funding from both the Department of Homeland Security and the Department of Defense. The latter money came through the executive order rescinded by Biden, in which Trump had claimed an emergency that even he admitted was not necessary. In 2020, the emergency spending accounted for $676 million in San Diego and El Centro counties.
The borderlands in eastern San Diego County, like every inch of the United States, are the ancestral homelands of Indigenous people. San Diego County has the highest number of reservations in the country, and the Kumeyaay people lived on this land long before the border came. Over the past year, they have been fighting a 30-foot steel wall that tears through the fragile high desert and divides Kumeyaay living north of the wall from their relatives to the south.
From a vantage point on top of a peak in eastern San Diego County, the wall stretches out as a physical manifestation of the brutality and ugliness of Donald Trump’s vision of American greatness. Sagebrush bushes, which survive in a region that can kill you with heat in the summer and cold in the winter, are held back by a rusty barbed wire fence next to a double-wide dirt road which runs alongside the towering steel spine of the wall proper. The wall stands on a deep concrete foundation, backed by the empty brownness of the roadway. No effort has been made aesthetically or ecologically to make this wall belong here. It’s as if the land, plants, and animals have drawn back in revulsion at the intrusion. On the other side of the newly created dead zone, bushes and plants grow right up to the border.
. . . .
Border Patrol agents drive around the area in expensive trucks, on an expensive road, next to a barrier that cost billions of dollars, all to keep the poorest people on the planet from asking us for help. In 2018, I spent time volunteering with a migrant caravan that had arrived in Tijuana and watched U.S. Department of Homeland Security employees launch tear gas over this wall at kids who couldn’t afford shoes.
Passages for the wall have been blasted out of the fragile landscape of California’s desert, causing drainage problems, disrupting migration pathways for the area’s wildlife, and leaving huge piles of rubble. Further east, there are half-finished roads that lead to nowhere, designed to allow contractors to deploy huge machinery against the defenseless landscape. They’re now just even-more-obvious illustrations of the ridiculous nature of the whole project.
Even before the roads run out, there are gaps in the wall. Construction stepped up in the months before the election to allow for Trump to make ever more ridiculous claims about miles of wall built, sometimes this meant harder-to-build areas were skipped or two crews worked on a wall that didn’t quite meet in the middle. It would be funny if it weren’t so ugly and pointless.
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Read the complete article at the link.
The unfinished wall is also a monument to:
The failure of the Supremes to stand up for democracy and the rule of law in the face of tyranny “supported” by blatantly bogus “pretexts;” and
The failure of our national values.
With respect to the latter, there is nothing that will bring the world’s greatest and richest “superpower” to its knees more quickly than a ragtag band of desperate unarmed humans yearning to breathe free 🗽and seeking legal protection ⚖️🧑🏽⚖️under our system! How dare they assert their legal rights and their humanity!
A girl peers out from an encampment at the U.S.-Mexico border where she and several hundred people waited to present themselves to U.S. immigration to seek asylum. / Photo by David MaungMolly O’Toole Immigration Reporter LA Times Source: LA Times website
Tuesday’s directives mandate a review, but do not end, the Remain in Mexico policy, which Biden had said he would rescind on his first day in office. Officially termed the Migrant Protection Protocols, or MPP, it has forced roughly 70,000 asylum seekers back to Mexico to wait in some of the world’s most dangerous cities for immigration court hearings in the U.S. that have been largely suspended since the Trump administration effectively closed the border last March, citing COVID-19.
Human Rights First has recorded at least 1,134 public reports of murder, torture, rape and kidnapping against asylum seekers returned to Mexico under MPP. Thousands have given up.
On Jan. 20, the Homeland Security Department announced that no new asylum seekers would be subjected to MPP, telling some 30,000 migrants left in limbo at the border by Trump that they should “remain where they are, pending further official information from government officials.”
Tuesday’s directives, as described by the officials, provide little additional clarity as to how the Biden administration will process those already subjected to MPP, along with thousands of others waiting.
Ensuring that MPP and other cases are processed “humanely” while safeguarding public health amid a pandemic is “fairly complicated,” one senior official said.
“I can’t tell you exactly how long it will take to have an alternative to that policy,” the other senior official said. Those under MPP will “certainly be taken into account because of the length of time they’ve waited and the conditions they are waiting in.”
On Monday, the administration effectively dropped appeals by the Trump administration in lawsuits against MPP and the diversion of billions in federal funds for border barrier construction. The acting Homeland Security head asked the Supreme Court to remove both cases, scheduled for oral arguments later this month, from its docket.
The Biden administration has not yet said what it will do with the effective closure of the border by the Trump administration under Title 42, which Tuesday’s directives do not address. The officials Monday cited ongoing litigation over the policy for the lack of action.
Under Title 42, Trump officials rapidly expelled hundreds of thousands of migrants, including asylum seekers and unaccompanied children, without due process. Whistleblowers at the Centers for Disease Control and Prevention said the Trump White House pushed the order for political, not public health, reasons.
On Tuesday, Biden also will take steps to restore Obama-era pathways allowing vulnerable groups in Central American to apply for admission to the U.S. from within the region, officials said.
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Read the rest of Molly’s detailed analysis of President Biden’s latest executive actions on immigration at the link.
Wonder how many more will be murdered, raped, tortured, kidnapped, robbed, extorted, get sick, or give up while their fate is being studied? Out of sight, (somewhat) out of mind. Just ask the Supremes’ majority! As long as the bodies aren’t on OUR doorsteps and we don’t have to listen to the moans, groans, and screams of the abused.
Five things that could be done immediately, without study:
Vacate all the anti-asylum precedents from the AG and the BIA since 2016;
Assign some Immigration Judges whose “TRAC Record” shows that they understand asylum law and aren’t afraid to grant protection to hear any scheduled MPP cases;
Replace the BIA (or at least create an “MPP Appeals Panel”) with judges who have demonstrated excellence and expertise in asylum law;
Do not go forward with any MPP case involving an unrepresented applicant;
Bar the issuance of “in absentia orders” in MPP cases.
I assume Suzanne will provide more coverage and analysis on CQ-Roll Call.
Let’s hope this is the first step to dismantling the disreputable “Supremes Shadow Docket” used by the Court and the SG’s Office during the Trump regime to screw asylum seekers and other migrants, deny due process, and stomp on human rights, many times without even deigning to provide a full rationale to those they are victimizing and abusing. Never seen so many totally unjustified stays of correct lower Federal Court rulings blocking blatantly illegal and invidious Executive action.
For many of us, it didn’t take an armed insurrection to show the Trump regime’s racism, contempt for democracy, and disregard of our Constitution. But, the Supremes’ GOP majority feigned ignorance that Trump wasn’t a “normal Executive” whose decisions might be entitled to “deference.” So much for all those fancy Ivy League law degrees! (Not to mention anti-American, anti-Democracy insurrectionists and conspiracy theory mongers Teddy Cruz and Josh Hawley who also had the benefit of what was once thought to be a “premier” legal education.)
America deserves better from its highest Court and the Government lawyers who appear before it! Hopefully, this is the beginning of a new day in American justice!
