"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.
BTYB – Student Success, Equity, and Community and the Weissberg Program in Human Rights & Social Justice
The Office of Student Success, Equity & Community Ousley Scholar In Residency honors the legacy of Grace Ousley, the first black woman to graduate from Beloit College. It is a junior scholar/activist/organizer/intellectual committed to the theory and practice of social justice. They should embody the “academic hustler” who fights for “social justice” in all aspects of their work. Support for the residency comes from the Weissberg Program in Human Rights and Social Justice and the Office of Student Success. Equity & Community.
This promises to be a great program! And, the Ousley Residence Program is a fantastic contribution to educating and inspiring new generations of Americans about the many challenges still facing us in achieving social justice in our nation.
The abrogation of due process and dehumanization of people of color has, outrageously, become part of the dysfunctional U.S. Immigration Court System. The last Administration specifically encouraged and promoted this ugly, anti-democracy, phenomenon and then used it to spearhead an all-out assault on racial justice, gender equality, LGBTQ rights, religious tolerance, economic progress, voter rights, and humane progressive values throughout American society.
Unfortunately, many progressives have been slow to “connect the dots” and insist that meaningful social justice change start with fixing the racial and gender bias problems in our Immigration Courts, tribunals that are under the complete control of the Biden Administration!
For example, current Attorney General Merrick Garland rather incredibly claims to be standing up for women’s rights in Texas and defending voting rights for minorities while continuing to run misogynistic, regressive “Star Chambers” at EOIR, staffed with many judges hand-selected by Jeff Sessions and Billy Barr, and tossing vulnerable women refugees of color back across our Southern Border into harm’s way without any “process” at all, let alone “Due Process of Law.” Garland also continues to enable human rights abuses in the “New American Gulag” of DHS civil detention! We can see this process of dehumanization of the “other” before the law, called “Dred Scottification” by many of us, spreading throughout our legal system and being endorsed and “normalized” all the way up to the Supremes.
From the summary in the announcement above, it appears that Denea, based on her own inspiring life and achievements as a “Dreamer,” will help us to “connect the dots” between racial justice, immigrant justice, and equal justice for all. Immigrants’ Rights = Human Rights = Everyone’s Rights!
If you’re a person who believes it’s literally no one’s business who gets an abortion other than that of the pregnant individual undergoing the procedure, you’ve likely been incandescent with rage since the Supreme Court’s conservative majority decided to allow Texas to proceed with an insane law that prohibits terminating pregnancies after six weeks, with no exceptions for rape or incest. That anger likely stems from not just the law itself but having to listen to the chorus of dumbass voices who’ve come out backing Texas for effectively banning people from obtaining an abortion, from Tucker Carlson, who opined that the law shows “democracy does still exist,” to California gubernatorial candidate Caitlyn Jenner, who ironically commented that she supports Texas’s right to choose its own laws.
Of course, another one of those voices is the Lone Star state governor Greg Abbott, who signed the bill into law in May, saying at the time, “Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion,” and that the Texas Legislature “worked together on a bipartisan basis to pass a bill that…ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.” (That both sides of the aisle supported the bill would be news to Texas Democrats, as just a single one of them voted for it.)
Asked on Tuesday why his state felt the need to “force a rape or incest victim to carry a pregnancy to term,” Abbott responded like only a person who really, really hates women can, claiming, “It doesn’t require that at all.” He added: “Because obviously it provides at least six weeks for a person to be able to get an abortion, so for one it doesn’t [require] that. That said, however, let’s make something very clear. Rape is a crime and Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them and getting them off the streets.”
There’s a lot to unpack here, so let’s start with the fact that Abbott is claiming that because the law allows for abortion up to six weeks, it’s not forcing anyone to do anything. As doctors, people who’ve been pregnant before, and people who’ve bothered to read a book on the subject before crafting legislation on it have noted, by the time a person misses her first period, she’s already roughly four weeks pregnant. That means that under Texas law, someone would have no more than two weeks, not six, to determine she’s pregnant and decide whether or not to get an abortion. Even in the case of people who are actively trying to get pregnant, that window can narrow even further for numerous reasons including if they have irregular cycles. Usually, then, one would make an appointment with a doctor to confirm the pregnancy, and as Abbott may or may not know, healthcare in America is not the greatest, so she may not be able to be seen for several weeks. And that hugely generous two weeks is not only a joke for many people actively trying to have a child, but for the majority of people who are not. “It is extremely possible and very common for people to get to the six-week mark and not know they are pregnant,” Jennifer Villavicencio, M.D., lead for equity transformation at the American College of Obstetricians and Gynecologists, told The New York Times. In other words, Abbott should fuck all the way off with his “obviously it provides at least six weeks for a person to be able to get an abortion.”
Then there’s the hilarious remark that he’s going to eliminate rape in Texas, so not allowing individuals to terminate pregnancies that result from heinous crimes is a moot point. Really, Abbott is going to make Texas rape-free? If he had that power, why didn’t he do it prior to enacting this law? The victims of the 14,824 reported rapes in his state in 2019, when he was four years into his first term, would probably love to know! (For those of you keeping up at home, that figure made Texas the No. 1 state for rape that year.)
Of course, Abbott is far from the first politician to say something ridiculously idiotic about abortion and rape. In fact, he joins a long line of assholes who’ve smugly offered their moronic two cents on the matter, an illustrious group that includes:
The Ohio state legislature, which introduced a bill in 2019 requiring doctors to “reimplant an ectopic pregnancy” into the uterus, or face charges of “abortion murder,” despite the fact that such a procedure is medically impossible;
Former Texas state representative Jodie Laubenberg, who claimed while in office that rape victims don’t need access to legal abortion, because they can get “cleaned out” with rape kits, which obviously is not at all how rape kits work;
Representative Michael Burgess, who somehow obtained a medical degree in 1977, and declared that male fetuses masturbate in utero—naturally, there is no evidence of this—, so abortions shouldn’t be allowed;
Former North Carolina state representative Henry Aldridge, who once said, “The facts show that people who are raped—who are truly raped—the juices don’t flow, the body functions don’t work, and they don’t get pregnant. Medical authorities agree that this is a rarity, if ever.” (Medical authorities do not agree with this);
Former congressman Todd Akin, who boldly declared on the campaign trail: “If it’s a legitimate rape, the female body has ways to try to shut that whole thing down.”
Welcome to the club, Greg! Can’t wait to hear you parse the nuances of putting $10,000 bounties on the heads of individuals trying to help people escape your barbaric law.
In other Abbott news…
When he’s not signing and defending disgraceful abortion bills, he’s disenfranchising millions of his constituents. Per Bloomberg:
Greg Abbott on Tuesday signed one of the nation’s most aggressive laws curbing access to the ballot, joining a wave of such restrictions enacted after former President Donald Trump’s false claim that the 2020 election was stolen. The legislature passed the measure last month after an exodus from the state by Democratic lawmakers during the first of two special sessions. After the walkout sputtered, Republican lawmakers passed the bill without delay.
Republicans have spent months raising doubts about the 2020 election, which experts say was one of the nation’s most secure. Now, supporters of new state laws say too many voters have lost faith in voting systems, and must be reassured.
“We must have trust and confidence in our elections,” Abbott said at a signing ceremony in Tyler, Texas. “The bill that I’m about to sign helps to achieve that goal. It ensures that every eligible voter will have the opportunity to vote.” Of course, that’s an interesting way to describe a law that makes it harder to vote, by, among other things, ending drive-thru voting, limiting mail-in voting, and endowing partisan poll watchers with more power. In a tweet, the American Civil Liberties Union wrote “This law is unconstitutional and anti-democratic. Texas—we’ll see you in court. Again.” Beto O’Rourke, the former Democratic U.S. representative from El Paso, wrote in a statement: “Governor Abbott is restricting the freedom to vote for millions of Texans. Instead of working on issues that actually matter, like protecting school kids from Covid or fixing our failing electrical grid, Abbott is focused on rigging our elections and implementing extreme, right-wing policies.”
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You can check out the rest of the always lively and entertaining “Levin Report” at the above link. Like their lost idol, Abbott & DeSantis are plumbing the absolute bottom of American politics and actually killing and irreparably harming their “constituents” as they do it. Undoubtedly, that will make them “heroes” in today’s existentially dangerous “anti-heroic, anti-democracy” GOP!
There was a time in the distant past when all BIA judges were not required to be members of the pro-immigration enforcement “mob!” https://www.flickr.com/photos/rasputin243/ Creative Commons License.
“Under 8 U.S.C. § 1226(c), the Government must detain noncitizens who are removable because they committed certain specified offenses or have connections with terrorism, and it must hold them without bond pending their removal proceedings. This appeal asks us to decide what process is due when such detainees contend that they are not properly included within § 1226(c) and whether noncitizens who have substantial defenses to removal on the merits may be detained under § 1226(c). Because the District Court granted relief in the form of a class-wide injunction, we must also decide whether 8 U.S.C. § 1252(f)(1) permits class-wide injunctive relief. For the reasons set forth below, we agree with the District Court that § 1226(c) is constitutional even as applied to noncitizens who have substantial defenses to removal. But for those detainees who contend that they are not properly included within § 1226(c) and are therefore entitled to a hearing pursuant to In re Joseph, 22 I. & N. Dec. 799 (BIA 1999), we hold that the Government has the burden to establish the applicability of § 1226(c) by a preponderance of the evidence and that the Government must make available a contemporaneous record of the hearing, consisting of an audio recording, a transcript, or their functional equivalent. Because we also conclude that § 1252(f)(1) does not authorize class-wide injunctions, we will reverse the District Court’s order in part, affirm in part, and remand for the entry of appropriate relief.”
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As as interesting footnote, like most of my colleagues at the Arlington Immigration Court, I always recorded bond hearings, long before this court ordered it as required by due process. One of the first things one of my colleagues told me when I arrived at Arlington was “record everything that happens in open court.” Recording protects everyone in the courtroom, including the judge!
It also helped our Judicial Law Clerks and interns “reconstruct” the bond record and understand our reasoning in the infrequent event that a “bond appeal” were filed. Otherwise, the “bond memorandum” would have to be based on the IJ’s notes and his or her recollection of what had transpired.
Talk about a defective system that should have been changed ages ago! But, that’s EOIR!And, it’s not going to improve without some major personnel changes and dynamic leadership that actually understands what happens in Immigration Court and is willing to think creatively, progressively, and change long-outdated practices and procedures, many of them in effect since EOIR was created in the early 1980s!
Here’s my favorite quote from Judge Krause’s opinion:
Having considered the standards urged by the Government and by Plaintiffs, we settle on one in between: To comport with due process, the Government must show by a preponderance of the evidence that the detainee is properly included within § 1226(c) as both a factual and a legal matter. See Addington, 441 U.S. at 423–24. It must show, in other words, that it is more likely than not both that the detainee in fact committed a relevant offense under § 1226(c) and that the offense falls within that provision as a matter of law. Cf. Joseph, 22 I. & N. Dec. at 809 (Schmidt, Chairman, dissenting) (contending that the Government must “demonstrate[] a likelihood of success on the merits of its charge” at the Joseph hearing).
Here’s a link to the full opinion, including my separate opinion, in Matter of Joseph, 22 I&N Dec. 799 (BIA 1999) (Joseph II):
Here’s the full text of my concurring/dissenting opinion (very “compact,” if I do say so myself):
CONCURRING AND DISSENTING OPINION: Paul W. Schmidt, Chairman; in which Fred W. Vacca, Gustavo D. Villageliu, Lory D. Rosenberg, and John Guendelsberger, Board Members, joined
I respectfully concur in part and dissent in part.
I join entirely in the majority’s rejection of the Immigration and Naturalization Service’s appellate arguments and in the unanimous conclusion that, on this record, the Service is substantially unlikely to prevail on the merits of the aggravated felony charge. Therefore, I agree that the respondent is not properly included in the category of aliens subject to mandatory detention for bond or custody purposes.
However, I do not share the majority’s view that the proper standard in a mandatory detention case involving a lawful permanent resident alien is that the Service is “substantially unlikely to prevail” on its charge. Matter of Joseph, 22 I&N Dec. 3398, at 10 (BIA 1999). Rather, the standard in a case such as the one before us should be whether the Service has demonstrated a likelihood of success on the merits of its charge that the respondent is removable because of an aggravated felony.
Mandatory detention of a lawful permanent resident alien is a drastic step that implicates constitutionally-protected liberty interests. Where the lawful permanent resident respondent has made a colorable showing in cus- tody proceedings that he or she is not subject to mandatory detention, the Service should be required to show a likelihood of success on the merits of its charge to continue mandatory detention. To enable the Immigration Judge to make the necessary independent determination in such a case, the Service should provide evidence of the applicable state or federal law under which the respondent was convicted and whatever proof of conviction that is available at the time of the Immigration Judge’s inquiry.
The majority’s enunciated standard of “substantially unlikely to prevail” is inappropriately deferential to the Service, the prosecutor in this matter. Requiring the Service to demonstrate a likelihood of success on the merits of its charge would not unduly burden the Service and would give more appropriate weight to the liberty interests of the lawful permanent res- ident alien. Such a standard also would provide more “genuine life to the regulation that allows for an Immigration Judge’s reexamination of this issue,” as referenced by the majority. Matter of Joseph, supra, at 10.
The Service’s failure to establish a likelihood of success on the merits would not result in the release of a lawful permanent resident who poses a threat to society. Continued custody of such an alien would still be war- ranted under the discretionary criteria for detention.
In conclusion, mandatory detention should not be authorized where the Service has failed to demonstrate a likelihood of success on the merits of its charge. Consequently, while I am in complete agreement with the decision to release this lawful permanent resident alien, and I agree fully that the Service is substantially unlikely to prevail on the merits of this aggravated felony charge, I respectfully dissent from the majority’s enunciation of “substantially unlikely to prevail” as the standard to be applied in all future cases involving mandatory detention of lawful permanent resident aliens.
“Pushback” from appellate judges actually committed to the then-EOIR vision of “guaranteeing fairness and due process for all,” was essential! Once the “Ashcroft purge” “dumbed down” the BIA and discouraged dissent and intellectual accountability, the system precipitously tanked! It got so bad that it actually provoked harsh criticism and objections from Circuit Judges across the political/ideological spectrum.
Eventually the Bush II DOJ was forced to back off a few steps from their all-out assault on immigrants’ rights. But, the damage was done, and there were no meaningful attempts to restore balance and quasi-judicial independence at EOIR thereafter. Indeed, Ashcroft’s Bush-era successors blamed the Immigration Judges for the meltdown engineered by Ashcroft, while sweeping their own role in creating “disorder in the courts” under the carpet in the best bureaucratic tradition!
EOIR continued to languish under Obama before going into a complete “death spiral” under the Trump DOJ kakistocracy.
Despite unanimous recommendations from experts that he make progressive reform and major leadership and personnel changes at EOIR one of his highest priorities, AG Garland has allowed the mess and the fatal absence of progressive, due-process-focused, expert judges and best practices at EOIR fester.
Long-deposed progressive judges willing to speak up for due process and fundamental fairness, even in the face of a “go along to get along” culture at DOJ, are still making their voices heard, even decades after they were sent packing! It’s tragic that Garland is letting the opportunity to create a long-overdue and necessary independent progressive judiciary at EOIR slip through his fingers. Progressive Dems might “dream” of transforming the Article III Judiciary; but, it’s not going to happen while Dems are running a “regressive judiciary” at the “retail level” in the one potentially powerful judiciary they do completely control.
Sadly, vulnerable individuals, many of them women, children, and people of color, will continue to suffer the brunt of Garland’s indifferent approach to judicial justice at EOIR. Beyond that, however, his failure to transform EOIR into an independent progressive court system willing to stand up for constitutional due process, equal justice, racial equity, best judicial practices, and the rule of law undermines democracy and diminishes the rights of everyone in America!
Norma Pimentel, a sister of the Missionaries of Jesus, is executive director of Catholic Charities of the Rio Grande Valley.
Dear Mr. President:
I write today to appeal to your sense of morality, human dignity and as a fellow Catholic. While the Supreme Court has blocked your efforts to rescind the Migrant Protection Protocols (MPP), better known as the “Remain in Mexico” policy, while litigation against it proceeds through the court system, I urge you to act. These legal complications, and our backlogged immigration courts system, cannot become an excuse to strand thousands of people in dire conditions, especially when other options are available.
I know from firsthand experience just how desperate the situation is. MPP was implemented in my community in early 2019. Its effect was to force thousands of people into a makeshift “tent city” along the Mexican side of the Rio Grande river as they awaited rulings on whether they would be granted asylum.
I would visit the camp almost every single day. It was a blessing that hundreds of compassionate Americans crossed the border between Brownsville, Tex., and Matamoros, Mexico, several times a day to bring tents, food, clothing, and to tend to these families’ medical needs and legal issues. While supported by the good nature and assistance that staff and others provided, I often worried about how the women, men and children at the camp could survive in such conditions. How could they stand the scorching heat of our region’s hot sun or the occasional torrential downpours that turned their encampment into a mud pit?
The lack of care for humanity and the sounds of human misery accompanied me daily as I moved through the camp. I know that reports of these conditions have reached your ears, too: I met your wife, Jill Biden, here in 2019 as she donned rubber boots to wade through the mud and see for herself the misery in which asylum seekers, including many women and children, lived for as long as two years.
So, I rejoiced when you declared an end to this immoral policy on your first days in office, and despaired when the Supreme Court required your administration to implement it once again.
I pray for the Supreme Court justices as I do for all leaders. But in my heart, I know that surely, we can do better than return to the conditions and suffering I witnessed in 2019.
. . . . .
I invite you to come and see for yourself, as your wife did in 2019, what is happening on the border. There are many layers to the immigration realities behind the strident political rhetoric that dominates and obscures the issue today. But we must find ways to counter what Pope Francis calls a “globalization of indifference.”
Mr. President, please demonstrate to the world that the words of Jesus — whatsoever you do to the least of my brothers, you do unto me — are the foundation of not only our faith, but of the moral structure of our country.
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Read the rest of Sister Norma’s letter at the above link.
She’s right: “We cannot allow a lack of creativity and fortitude to become an excuse to abandon the principle of compassion.” But, sadly, that’s exactly what the Biden Administration is doing by listening to the wrong advice from those wedded to the failed, illegal, and cruel concept of misusing the law and perverting process as a “deterrent.”
The experts, “practical scholars,” NGOs, intellectual leaders, and courageous progressive judicial talent who can solve this problem, folks like Sister Norma, Karen Musalo, Marielena Hincappie, Kevin Johnson, Michelle Mendez, Jaya Ramji-Nogales, Lenni Benson, Michele Pistone, Geoffrey Hoffman, Jason “The Asylumist” Dzubow, and Judge Ilyce Shugall, are all “on the outside looking in.” Moreover, rather than working with them to fix the asylum system at the border and bring essential progressive reforms to our dysfunctional Immigration Courts, the Administration has actively alienated and disrespected their views in favor of recycling “guaranteed to fail, Miller-Lite” deterrence only policies of the past.
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — Beyond bad GOP judges, corrupt and evil GOP State AGs, “Miller Lite” bureaucratic retreads, and feckless and timid Biden policy wonks, this is the harsh reality of our continuing, failed, “border deterrence” policies and our abrogation of asylum laws and human morality. EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
The solutions are out there! Too bad the Administration has become “part of the problem,” rather than having the guts and creativity to solve the problem while saving lives! No courage, no convictions, no solutions! It’s a formula for disaster☠️ and death!⚰️
As Sister Norma says, using the words of Jesus, in her powerful conclusion: “whatsoever you do to the least of my brothers, you do unto me — are the foundation of not only our faith, but of the moral structure of our country.” Right now, He couldn’t be very pleased with the conduct of the GOP nativists, the Supremes, righty Federal Judges, horrible GOP AGs, and the feckless bureaucrats and timid policy officials of the Biden Administration!
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — According to the NYT, Biden immigration policy officials always shared this vision of “ultimate border deterrence” with Gauleiter Stephen Miller. Now, they are secretly relieved that Trump’s righty judges have “forced” them to continue running a lawless border and killing asylum seekers without legal process. EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
MATAMOROS, Mexico — When the Supreme Court effectively revived a cornerstone of Trump-era migration policy late last month, it looked like a major defeat for President Biden.
After all, Mr. Biden had condemned the policy — which requires asylum seekers to wait in Mexico — as “inhumane” and suspended it on his first day in office, part of an aggressive push to dismantle former President Donald J. Trump’s harshest migration policies.
But among some Biden officials, the Supreme Court’s order was quietly greeted with something other than dismay, current and former officials said: It brought some measure of relief.
Before that ruling, Mr. Biden’s steps to begin loosening the reins on migration had been quickly followed by a surge of people heading north, overwhelming the southwest border of the United States. Apprehensions of migrants hit a two-decade high in July, a trend officials fear will continue into the fall.
Concern had already been building inside the Biden administration that the speed of its immigration changes may have encouraged migrants to stream toward the United States, current and former officials said.
In fact, some Biden officials were already talking about reviving Mr. Trump’s policy in a limited way to deter migration, said the officials, who have worked on immigration policy but were not authorized to speak publicly about the administration’s internal debates on the issue. Then the Supreme Court order came, providing the Biden administration with the political cover to adopt the policy in some form without provoking as much ire from Democrats who reviled Mr. Trump’s border policies.
Now, the officials say, they have an opportunity to take a step back, come up with a more humane version of Mr. Trump’s policy and, they hope, reduce the enormous number of people arriving at the border.
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Read the rest of Natalie’s article at the link.
Who would have thought that neo-Nazi Stephen Miller would be the real winner of the 2020 election?
When he ”wins,” America and humanity “lose.” But, apparently that’s “A-OK” with some Biden Administration officials who lack the expertise, ability, courage, and political will to establish the rule of law for asylum seekers at our Southern Border! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com.
Five decades of experience, including plenty of wall and fence building, civil detention, expedited dockets, restrictive interpretations, criminal prosecutions, family detentions, toddlers without lawyers, money to corrupt foreign governments, “don’t come, we don’t want you and care nothing about your lives messages,” in English and Spanish, says the Biden version of the “Miller Lite” approach will fail and ultimately expand the extralegal population of the U.S.
Of course, it also will kill more desperate humans in the desert, in Mexico, in squalid “camps,” and back in their home countries. Just so long as it’s “out of sight, out of mind.” The great thing about desert deaths is that often the bodies are never found or identified. Therefore, nothing can be proved, and it’s like these people “never happened.” It’s a real bureaucratic triumph! Foreign deaths are almost as good, as they seldom get much “play” in U.S. media and always can be blamed on something other than failed U.S. policies or foreign interventions.
I’d already observed that the DOJ’s “defense” of undoing Trump immigration policies seemed as half-hearted as it was ineffective. Perhaps their lackadaisical approach came right from the top!
And, the “policy geniuses” in the Biden Administration who think “Miller-Lite Time” will be a political “happy hour” (at humanity’s expense) should remember that the right will still successfully label them as “open borders” just as they did when Obama established himself as “deporter-in-chief!”
Meanwhile, their former progressive supporters will see through the false humane rhetoric. Does it really matter if we call individuals “foreign nationals” rather than “illegals” while we’re illegally exterminating them?
I’m afraid we know the answer to “Casey’s question:” NO!
”Sorry, Casey! Not only can’t anyone in the Biden Administration ‘play this game,’ they don’t even have the guts to suit up! They view a ‘forfeit’ to “Team Miller” as good as a ‘W.’ Remember, it’s not THEIR family, friends, or relatives dying at our border. It’s just ‘the other guys,’ so who cares? When it comes to U.S. immigration policy, foreign nationals all too often find that their lives and human dignity are just another form of expendable political capital.” PHOTO: Rudi Rest Creative Commons
Heather Cox Richardson Historian Professor, Boston CollegeFrances Perkins (1880-1965) U.S. Secretary of Labor (1933-45) PHOTO: Public realm
From “Letters From An American:”
September 5, 2021
By Heather Cox Richardson
On March 25, 1911, Frances Perkins was visiting with a friend who lived near Washington Square in New York City when they heard fire engines and people screaming. They rushed out to the street to see what the trouble was. A fire had broken out in a garment factory on the upper floors of a building on Washington Square, and the blaze ripped through the lint in the air. The only way out was down the elevator, which had been abandoned at the base of its shaft, or through an exit to the roof. But the factory owner had locked the roof exit that day because, he later testified, he was worried some of his workers might steal some of the blouses they were making.
“The people had just begun to jump when we got there,” Perkins later recalled. “They had been holding until that time, standing in the windowsills, being crowded by others behind them, the fire pressing closer and closer, the smoke closer and closer. Finally the men were trying to get out this thing that the firemen carry with them, a net to catch people if they do jump, the[y] were trying to get that out and they couldn’t wait any longer. They began to jump. The… weight of the bodies was so great, at the speed at which they were traveling that they broke through the net. Every one of them was killed, everybody who jumped was killed. It was a horrifying spectacle.”
By the time the Triangle Shirtwaist Fire was out, 147 young people were dead, either from their fall from the factory windows or from smoke inhalation.
Perkins had few illusions about industrial America: she had worked in a settlement house in an impoverished immigrant neighborhood in Chicago and was the head of the New York office of the National Consumers League, urging consumers to use their buying power to demand better conditions and wages for workers. But even she was shocked by the scene she witnessed on March 25.
By the next day, New Yorkers were gathering to talk about what had happened on their watch. “I can’t begin to tell you how disturbed the people were everywhere,” Perkins said. “It was as though we had all done something wrong. It shouldn’t have been. We were sorry…. We didn’t want it that way. We hadn’t intended to have 147 girls and boys killed in a factory. It was a terrible thing for the people of the City of New York and the State of New York to face.”
The Democratic majority leader in the New York legislature, Al Smith—who would a few years later go on to four terms as New York governor and become the Democratic presidential nominee in 1928—went to visit the families of the dead to express his sympathy and his grief. “It was a human, decent, natural thing to do,” Perkins said, “and it was a sight he never forgot. It burned it into his mind. He also got to the morgue, I remember, at just the time when the survivors were being allowed to sort out the dead and see who was theirs and who could be recognized. He went along with a number of others to the morgue to support and help, you know, the old father or the sorrowing sister, do her terrible picking out.”
“This was the kind of shock that we all had,” Perkins remembered.
The next Sunday, concerned New Yorkers met at the Metropolitan Opera House with the conviction that “something must be done. We’ve got to turn this into some kind of victory, some kind of constructive action….” One man contributed $25,000 to fund citizens’ action to “make sure that this kind of thing can never happen again.”
The gathering appointed a committee, which asked the legislature to create a bipartisan commission to figure out how to improve fire safety in factories. For four years, Frances Perkins was their chief investigator.
She later explained that although their mission was to stop factory fires, “we went on and kept expanding the function of the commission ’till it came to be the report on sanitary conditions and to provide for their removal and to report all kinds of unsafe conditions and then to report all kinds of human conditions that were unfavorable to the employees, including long hours, including low wages, including the labor of children, including the overwork of women, including homework put out by the factories to be taken home by the women. It included almost everything you could think of that had been in agitation for years. We were authorized to investigate and report and recommend action on all these subjects.”
And they did. Al Smith was the speaker of the house when they published their report, and soon would become governor. Much of what the commission recommended became law.
Perkins later mused that perhaps the new legislation to protect workers had in some way paid the debt society owed to the young people, dead at the Triangle Shirtwaist Fire. “The extent to which this legislation in New York marked a change in American political attitudes and policies toward social responsibility can scarcely be overrated,” she said. “It was, I am convinced, a turning point.”
But she was not done. In 1919, over the fervent objections of men, Governor Smith appointed Perkins to the New York State Industrial Commission to help weed out the corruption that was weakening the new laws. She continued to be one of his closest advisers on labor issues. In 1929, when Franklin Delano Roosevelt replaced Smith as New York governor, he appointed Perkins to oversee the state’s labor department as the Depression worsened. When President Herbert Hoover claimed that unemployment was ending, Perkins made national news when she repeatedly called him out with figures proving the opposite and said his “misleading statements” were “cruel and irresponsible.” She began to work with leaders from other states to figure out how to protect workers and promote employment by working together.
In 1933, after the people had rejected Hoover’s plan to let the Depression burn itself out, President-elect Roosevelt asked Perkins to serve as Secretary of Labor in his administration. She accepted only on the condition that he back her goals: unemployment insurance; health insurance; old-age insurance, a 40-hour work week; a minimum wage; and abolition of child labor. She later recalled: “I remember he looked so startled, and he said, ‘Well, do you think it can be done?’”
She promised to find out.
Once in office, Perkins was a driving force behind the administration’s massive investment in public works projects to get people back to work. She urged the government to spend $3.3 billion on schools, roads, housing, and post offices. Those projects employed more than a million people in 1934.
In 1935, FDR signed the Social Security Act, providing ordinary Americans with unemployment insurance; aid to homeless, dependent, and neglected children; funds to promote maternal and child welfare; and public health services.
In 1938, Congress passed the Fair Labor Standards Act, which established a minimum wage and maximum hours. It banned child labor.
Frances Perkins, and all those who worked with her, transformed the horror of the Triangle Shirtwaist Fire into the heart of our nation’s basic social safety net.
“There is always a large horizon…. There is much to be done,” Perkins said. “It is up to you to contribute some small part to a program of human betterment for all time.”
Aftermath of the Triangle Shirtwaist Fire (1911) ILGWU Archives Public Realm
Get more from HCR at the above link!
Perkins is one of the most important and under-recognized heroes of modern American history. Perkins believed that Government was there to promote the public good.
But, it wasn’t just a hollow slogan like those spouted by many of today’s politicos. She actually “walked the walk,” using her powerful intellect, energy, talent, advocacy skills, persistence, and influence with FDR to make America a much better place.
Just think of it: “unemployment insurance; health insurance; old-age insurance, a 40-hour work week; a minimum wage; and abolition of child labor.” An amazing list of accomplishments for which she has received far, far too little credit from historians. Today, most Americans probably think of Perkins, if at all, as the “first female Cabinet Secretary.” But she was more than that. Much more!
Perkins also used her position as Labor Secretary (prior to WW II the cabinet officer with responsibility for immigration) creatively in an attempt to save Jewish refugees from Nazi Germany. Although she won a major legal battle on the positive use of “charge bonds” to assist refugees, the actual effects of her humanitarian efforts appear to have been unfortunately limited.
In the xenophobic, anti-Semitic, isolationist America of the 1930s, she also became a target of the far right for her strong commitment to human rights. In 1939, Congressional xenophobes initiated an unsuccessful impeachment attempt.
In 1940, FDR transferred responsibility for immigration from the Labor Department to the Department of Justice. That spelled not only the end of Perkins’s efforts to help Jewish refugees, but also was a death sentence for many who might have been saved.
The DOJ threw up a powerful combination of restrictive requirements and bureaucracy to guarantee the death of more European Jews in the Holocaust. Indeed, the DOJ went one better by putting Japanese-American U.S. citizens in concentration camps based on “national security” claims that have since been shown to be both bogus and racially motivated. Sound familiar?
You can read all about this disgraceful chapter in American history and Perkins’s largely fruitless attempts to “swim against the tide” here, in this article by Rebecca Brenner Graham in Contingent Magazine: https://contingentmagazine.org/2019/08/23/no-refuge/.
Dr. Rebecca Brenner Graham Teacher, Author, Historian PHOTO: Rebeccabrennergraham.com
I really enjoyed Rebecca’s very lively, accessible historical writing that brings to life one of the ugliest episodes in modern American history, now largely swept under the carpet by today’s nativist revisionists. It’s also covered in the a Holocaust museum, an exhibit that contains much of the same bogus “America is full” xenophobic rhetoric spouted by too many of today’s GOP nativists.
This really horrible response by Western democracies to lives in peril was what gave rise to the Geneva Refugee Convention, the basis for the Refugee Act of 1980 and our current refugee and asylum system! How quickly we forget! The Trump Administration, with help from the Supremes, basically abrogated the legal system for refugees and asylees, without legislation. Despite promises to restore the rule of law, the Biden Administration has basically allowed most of Trump’s illegal and immoral policies to continue damaging humanity and diminishing us as a nation.
What would Frances Perkins have done? Certainly more than Garland and Mayorkas! At any rate, I enjoyed Rebecca’s historical writing and look forward to more!
A few years ago, Cathy and I had the pleasure of touring the Perkins Family Homestead, near Damariscotta, Maine, now owned by the Frances Perkins Center, with our dear, now departed Boothbay Harbor neighbor Sue Bazinet. It certainly opened my eyes to what true progressive values, lived and acted upon, were and still are!
Frances Perkins Homestead Damariscotta, ME PHOTO: Francis Perkins Center
We could use more leaders like Perkins today! Many thanks to the always-fabulous HCR for highlighting this great American!
Torture? What torture? It’s merely “enhanced fact-finding!”
Public realm“They all want to voluntarily waive further hearings and take final orders!” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
The phrase appears in multiple 9/11 volumes, usually uttered by top officials adamant that they were going to get things done, laws and rules be damned. Anti-terrorism efforts were always “lawyered to death” during the Clinton administration, Tenet complains in “Bush at War,” Bob Woodward’s 2002 book on the debates among the president and his national security team. In an interview with Woodward, Bush drops the phrase amid the machospeak — “dead or alive,” “bring ’em on” and the like — that became typical of his anti-terrorism rhetoric. “I had to show the American people the resolve of a commander in chief that was going to do whatever it took to win,” Bush explains. “No yielding. No equivocation. No, you know, lawyering this thing to death.” In “Against All Enemies,” Clarke recalls the evening of Sept. 11, 2001, when Bush snapped at an official who suggested that international law looked askance at military force as a tool of revenge. “I don’t care what the international lawyers say, we are going to kick some ass,” the president retorted.
The message was unmistakable: The law is an obstacle to effective counterterrorism. Worrying about procedural niceties is passe in a 9/11 world, an annoying impediment to the essential work of ass-kicking.
Except, they did lawyer this thing to death. Instead of disregarding the law, the Bush administration enlisted it. “Beginning almost immediately after September 11, 2001, [Vice President Dick] Cheney saw to it that some of the sharpest and best-trained lawyers in the country, working in secret in the White House and the United States Department of Justice, came up with legal justifications for a vast expansion of the government’s power in waging war on terror,” Jane Mayer writes in “The Dark Side,” her relentless 2008 compilation of the arguments and machinations of government lawyers after the attacks. Through public declarations and secret memos, the administration sought to remove limits on the president’s conduct of warfare and to deny terrorism suspects the protections of the Geneva Conventions by redefining them as unlawful enemy combatants. Nothing, Mayer argues of the latter effort, “more directly cleared the way for torture than this.”
To comprehend what our government can justify in the name of national security, consider the torture memos themselves, authored by the Justice Department’s Office of Legal Counsel between 2002 and 2005 to green-light CIA interrogation methods for terrorism suspects. Tactics such as cramped confinement, sleep deprivation and waterboarding were rebranded as “enhanced interrogation techniques,” legally and linguistically contorted to avoid the label of torture. Though the techniques could be cruel and inhuman, the OLC acknowledged in an August 2002 memo, they would constitute torture only if they produced pain equivalent to organ failure or death, and if the individual inflicting such pain really really meant to do so: “Even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent.” It’s quite the sleight of hand, with torture moving from the body of the interrogated to the mind of the interrogator.
After devoting dozens of pages to the metaphysics of specific intent, the true meaning of “prolonged” mental harm or “imminent” death, and the elasticity of the Convention Against Torture, the memo concludes that none of it actually matters. Even if a particular interrogation method would cross some legal line, the relevant statute would be considered unconstitutional because it “impermissibly encroached” on the commander in chief’s authority to conduct warfare. Almost nowhere in these memos does the Justice Department curtail the power of the CIA to do as it pleases.
In fact, the OLC lawyers rely on assurances from the CIA itself to endorse such powers. In a second memo from August 2002, the lawyers ruminate on the use of cramped confinement boxes. “We have no information from the medical experts you have consulted that the limited duration for which the individual is kept in the boxes causes any substantial physical pain,” the memo states. Waterboarding likewise gets a pass. “You have informed us that this procedure does not inflict actual physical harm,” the memo states. “Based on your research . . . you do not anticipate that any prolonged mental harm would result from the use of the waterboard.”
You have informed us. Experts you have consulted. Based on your research. You do not anticipate. Such hand-washing words appear throughout the memos. The Justice Department relies on information provided by the CIA to reach its conclusions; the CIA then has the cover of the Justice Department to proceed with its interrogations. It’s a perfect circle of trust.
Yet the logic is itself tortured. In a May 2005 memo, the lawyers conclude that because no single technique inflicts “severe” pain amounting to torture, their combined use “would not be expected” to reach that level, either. As though embarrassed at such illogic, the memo attaches a triple-negative footnote: “We are not suggesting that combinations or repetitions of acts that do not individually cause severe physical pain could not result in severe physical pain.” Well, then, what exactly are you suggesting? Even when the OLC in 2004 officially withdrew its August 2002 memo following a public outcry and declared torture “abhorrent,” the lawyers added a footnote to the new memo assuring that they had reviewed the prior opinions on the treatment of detainees and “do not believe that any of their conclusions would be different under the standards set forth in this memorandum.”
In these documents, lawyers enable lawlessness. Another May 2005 memo concludes that, because the Convention Against Torture applies only to actions occurring under U.S. jurisdiction, the CIA’s creation of detention sites in other countries renders the convention “inapplicable.” Similarly, because the Eighth Amendment’s prohibition on cruel and unusual punishment is meant to protect people convicted of crimes, it should not apply to terrorism detainees — because they have not been officially convicted of anything. The lack of due process conveniently eliminates constitutional protections. In his introduction to “The Torture Memos: Rationalizing the Unthinkable,” David Cole describes the documents as “bad-faith lawyering,” which might be generous. It is another kind of lawyering to death, one in which the rule of law that the 9/11 Commission urged us to abide by becomes the victim.
Years later, the Senate Intelligence Committee would investigate the CIA’s post-9/11 interrogation program. Its massive report — the executive summary of which appeared as a 549-page book in 2014 — found that torture did not produce useful intelligence, that the interrogations were more brutal than the CIA let on, that the Justice Department did not independently verify the CIA’s information, and that the spy agency impeded oversight by Congress and the CIA inspector general. It explains that the CIA purported to oversee itself and, no surprise, that it deemed its interrogations effective and necessary, no matter the results. (If a detainee provided information, it meant the program worked; if he did not, it meant stricter applications of the techniques were needed; if still no information was forthcoming, the program had succeeded in proving he had none to give.)
“The CIA’s effectiveness representations were almost entirely inaccurate,” the Senate report concluded. It is one of the few lies of the war on terror unmasked by an official government investigation and public report, but just one of the many documented in the 9/11 literature.
. . . ,.
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Sound painfully familiar? It should, to those of us “DOJ vets” who lived through this period. The use of the “third person,” “double and triple negatives,” “weasel words” like “you have given us to understand that,” “decision by committee” where a memo is routed through so many layers of bureaucracy that the original author or authors don’t even appear on its face — are all “devices” to diffuse and obscure responsibility and avoid clear accountability for controversial(and too often wrong) decisions!
During our time at the BIA, my fellow U.W. Badger, Judge Mike Heilman and I were often at odds on the law, particularly when it came to asylum. Anybody who doubts this should read Mike’s remarkable and famous (or infamous) “rabbi dissent” in Matter of H-, 21 I&N Dec. 337, 349 (BIA 1996) (Heilman, Board Member, dissenting). Nevertheless, one thing we agreed upon was requiring any decisions written for us to use the first person to reflect whose decision it actually was!
“Lawyers enable lawlessness.” How true! In 2002, DOJ lawyers (hand-chosen by the politicos) “tanked” and enabled, even encouraged, gross law violations by the CIA.
Fast forward to 2018. Then, White Nationalist AG Jeff Sessions exhorted his wholly-owned “judges” at EOIR not to treat DHS enforcement as a party before the court, but rather as a worthy “partner” in combatting the largely-fabricated “scourge” of illegal immigration (that actually, as we can now see, was propping up Trump’s economy). Is it surprising that precedent decisions by Sessions, Whitaker, and Barr favored DHS nearly 100% of the time and the BIA thereafter issued almost no precedents where the individual prevailed (not that there were many of those following “the Ashcroft purge,” even before Sessions)?
Asylum grant rates in Immigration Court tumbled precipitously, while both the trial, and particularly appellate, levels at EOIR were “packed” with judges whose main qualification appeared to be an expectation that they would churn out large numbers of removal orders without much analysis or consideration of the factors favoring the individual. Misogyny and anti-asylum, anti-private-lawyer attitudes (those “dirty lawyers”) were encouraged by Sessions as part the “culture” at EOIR, sometimes visibly rewarded by “elevation” to the BIA.
Interestingly, at the same time in 2002 that the group of DOJ attorneys was furiously working in secret to justify torture, in clear violation of the Convention Against Torture (“CAT”), another group in the DOJ, the BIA, was struggling to make the CAT work in “real world” litigated cases. A number of us dissented from the majority of our BIA colleagues’ wrong-headed and rather transparent attempt to “neuter” CAT protection from the outset. Unlike the “secret lawyers” at the DOJ, our work was public and had consequences not only for the humans involved, but for those of us who had the audacity to stand up for their rights under domestic and international law!
Here’s an excerpt from my long-forgotten dissenting opinion in Matter of J-E-, 22 I&N Dec. 291, 314-15 (BIA 2002) (Schmidt, Board Member, dissenting):
The majority concludes that the extreme mistreatment likely to befall this respondent in Haiti is not “torture,” but merely “cruel, inhuman or degrading treatment.” The majority further concludes that conduct defined as “torture” occurs in the Haitian detention system, but is not “likely” for this respondent. In short, the majority goes to great lengths to avoid applying the Convention Against Torture to this respondent.
We are in the early stages of the very difficult and thankless task of construing the Convention. Only time will tell whether the majority’s narrow reading of the torture definition and its highly technical approach to the standard of proof will be the long-term benchmarks for our country’s implementation of this international treaty.
Although I am certainly bound to follow and apply the majority’s constructions in all future cases, I do not believe that the majority adequately carries out the language or the purposes of the Convention and the implementing regulations. Therefore, I fear that we are failing to comply with our international obligations.
I conclude that the respondent is more likely than not to face officially sanctioned torture if returned to Haiti. Therefore, I would grant his application for deferral of removal under the Convention Against Torture and the implementing regulations. Consequently, I respectfully dissent.
Within a year of that decision, my dissenting colleagues and I were among those “purged” from the BIA by Ashcroft because of our views. I’d argue that EOIR has continued to go straight downhill since then, and is now in total free fall! Surely, any “facade” of quasi-judicial independence at the BIA has long-since crumbled. Yet, AG Garland pretends there is no problem. Garland’s apparent belief that this is still Judge Bell’s or Ben Civiletti’s or even Ed Levi’s DOJ is simply, demonstrably, wrong.
Today’s DOJ has been part and parcel of a highly inappropriate “weaponization” of the law and “Dred Scottification” directed against individual civil rights, migrants, voters, women, people of color, and a host of “others” who were on the far right “hit list” of the Trump kakistocracy. Nowhere has that been more evident than at the dysfunctional and institutionally biased EOIR. The problems plaguing American justice today have increased since 9-11. They will continue to fester and grow unless and until Garland faces reality and makes progressive leadership and judicial changes at EOIR to addresses the toxic culture of complicity and abusive use of the law to degrade individual and human rights. And, some real accountability at the rest of the badly-damaged DOJ should not be far behind.
“We hold that B.C. was denied due process because the IJ did not conduct an adequate initial evaluation of whether an interpreter was needed and took no action even after the language barrier became apparent. Those failures resulted in a muddled record and appear to have impermissibly colored the agency’s adverse credibility determination. We therefore vacate the BIA’s decisions and remand for a new hearing on the merits of B.C.’s claims. On remand, the agency must also remedy other errors B.C. has identified, which include dealing with the corroborative evidence he submitted.”
“Baljinder Singh achieved what many immigrants to our country seek: he became a naturalized citizen. Unfortunately, he did so through willful misrepresentation, and, as a consequence, his citizenship was revoked. Before that revocation and while he was still a citizen, he was convicted of conspiracy to distribute and possess with intent to distribute illegal drugs. That led the government to initiate removal proceedings against him, and he was in fact ordered to be removed. Singh now petitions for review of that final order of removal, arguing that the pertinent statutory provisions, by their terms, permit removal only of individuals who were “aliens” at the time of their criminal convictions, whereas he was a naturalized citizen when convicted. The government responds that we must defer to the interpretation given by the Board of Immigration Appeals (“BIA”) to those statutes and therefore must deny the petition for review. In the alternative, the government contends that Singh should be treated as if he had never been naturalized and was actually an “alien” at the time he was convicted. We disagree with both of the government’s arguments and will grant Singh’s petition for review.”
Who would have thought that nearly eight months into the Biden Administration, Garland would still be living in this guy’s house and cranking out some of America’s most unabashedly horrible “jurisprudence” that actually threatens human lives! This is competence? Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
So many systemic problems here! So many obvious solutions! So much progressive expert talent out here who could get this system back on track and save lives in the process! So few excuses for Garland’s gross mishandling of the ongoing EOIR disaster!
The “culture of sloppiness, denial, and anti-immigrant bias” remains at EOIR almost eight months into the Biden Administration! Major personnel (new expert progressive judges committed to due process) and structural changes are necessary and long, long overdue!
The BIA needs to be replaced. Yesterday! Not rocket science! 🚀 Garland and his DOJ have no credibility whatsoever on civil rights, voting rights, or other racial justice issues as long as they run “star chambers” targeting primarily migrants of color (not to mention their long-suffering and dedicated lawyers, many acting pro bono).
“Justice” Star Chamber Style — Garland’s star chambers look and function disturbingly like those of Stephen Miller! Is this REALLY the “progressive humanitarian change” progressives voted for?
Immigrant justice IS racial justice IS equal justice for all! I’m certainly not the only person to have observed this!
⚠️WARNING TO PROGRESSIVE ADVOCATES: There can be no legitimate “asylum reform” without a strong, courageously progressive EOIR to set proper precedent, insure consistency, establish best practices, train judges and adjudicators, and police both the Immigration Courts and the Asylum Offices, including ordering corrective action to be taken in cases of those judge and officers repeatedly and demonstrably “not up to the job.” In simple terms, the culture of anti-asylum bias, racial dehumanization, and sloppy anti-immigrant decision-making that was promoted and institutionalized at EOIR under Sessions and Barr must be eradicated!
Do you seriously think that “this version” of EOIR, poorly trained, weakly staffed, and led by a BIA custom designed and packed by nativists to deny asylum and tilt in favor of DHS enforcement, will insure fairness and due process to asylum seekers in a “streamlined system?” No way!
Yet, beneath all the legal gobbledygook surrounding the proposed asylum regulation changes is the ugly reality that inflicting a “Miller-Lite” EOIR on asylum seekers and their advocates is EXACTLY what Garland and Mayorkas are absurdly proposing!
Advocates need to make their voices heard for immediate EOIR reforms from Garland and establishment of a new well-qualified, well-trained, progressive EOIR as an absolute, non-negotiable prerequisite to any more “gimmicks,” including most of the proposed asylum regulations.
As proved, beyond any reasonable doubt, day after day, Garland’s EOIR is “not quite ready for prime time” — not by a long shot! JUST SAY NO TO STREAMLINING & YET MORE “GIMMICKS” (see, e.g., “Dedicated Dockets”) WITHOUT RADICAL PROGRESSIVE EOIR REFORMS!⚖️🗽
The main problem with the current asylum system isn’t the law. It’s the unqualified folks charged with interpreting and applying it, those “defending the indefensible” (also an abuse of our legal process), and the spineless politicos unwilling to stand up for due process and the rule of law for migrants — at the border and elsewhere!
The failure of effective progressive leadership on EOIR reform at DOJ is simply appalling! And, OIL isn’t exactly covering itself in glory either! You can’t win the game without new and better players on the field. Right Casey?
“Casey Stengel might understand Judge Garland. The rest of us not so much.” Not going to win many games for humanity and the rule of law with Stephen Miller’s “nativist team” on the field. Is that fundamental truth really too deep for Garland and his “spear carriers” to grasp? PHOTO: Rudi Reit Creative Commons
Here’s the ugly truth about what two Administrations and some really bad Federal Judges have done to our vulnerable fellow humans seeking legal refuge at our borders:
I refer to this as the “harsh reality that the nativist Ted Cruz ‘let ‘em enjoy the beaches in Cancun’ crowd doesn’t get!”
And, here’s the truth about migrants helping our nation thrive and who are a key component of our hopes for the future. Progressives and their allies must double down and act upon these truths to combat the type of ridiculous, dangerous, anti- American nativist lies and myths that were driving some of the misinformed callers, also pushed by the “insurrectionist wing” of the GOP:
Significantly, this article came from the George W. Bush Institute, hardly a “left wing think tank.”
“Geoffrey’s 40 minutes” shows that there is, indeed, an imminent threat to American democracy, leadership, and future prosperity out there. But, it definitely does not come from migrants! A nation where about 98% of the population came from immigrant lineage can’t afford to turn our backs on today’s immigrants.
A robed GOP Justice, carrying a copy of Dred Scott and the tool of right-wing extremism, heads for secret meeting to take action against brown-skinned refugees! Image: Hernan Fednan, Creative Commons LicenseDahlia Lithwick Supreme Court Reporter Slate Wikimedia Commons — Public DomainMark Joseph Stern Reporter, Slate
On Tuesday night, the Supreme Court issued one of the most radical orders in recent memory—and it did it in three sentences, unsigned. By a 6–3 vote, the conservative justices attacked the president’s authority to conduct foreign policy (a principle it had vehemently preserved throughout the Trump presidency) by compelling the Biden administration to revive Donald Trump’s “Remain in Mexico” policy, which required all asylum-seekers who arrive at the Southern border—including many fleeing violence in Central America—to wait for their U.S. immigration hearings in Mexico. This 2019 policy, the product of extensive negotiations between the Trump administration and the Mexican government, has been suspended for about 17 months. On Aug. 13, however, a single federal judge issued a nationwide injunction ordering the government to reinstate the long-dormant program immediately. Late Tuesday, the Supreme Court blessed this unprecedented hostile takeover of the executive’s immigration policies without bothering to explain how or why.
The implications of Tuesday’s decision are profoundly disturbing. . . .
Perhaps the most perverse aspect of the litigation over “Remain in Mexico”—also known as the Migrant Protection Protocols, or MPP—is that the policy itself is illegal. The Immigration and Nationality Act does allow the government to return a narrow class of migrants to “contiguous territory” while they await hearings. But, as a federal appeals court explained in 2020, the law does not allow the government to send the vast majority of asylum-seekers back to Mexico to await hearings. Doing so violates the United States’ treaty obligations as implemented in the INA, which bar the government from sending refugees back to countries where they fear persecution.
. . . .
As we have suggested in the recent past, the problem with late-night emergency orders written as haikus on Post-it notes stuck to the front doors of the Supreme Court isn’t just that the parties must scramble, without guidance, to discern what it is the court wants them to do. In this case, perhaps tens of thousands of desperate asylum-seekers and their families have absolutely no clue as to what the law is now and why. We have no idea what even constitutes an emergency, or which parties have standing, or what the legal reasoning might be.
Not very long ago, the high court used its shadow docket to spank what it deemed runaway district court judges arrogating power to set immigration policy in violation of Trump’s orders. Now, the same shadow docket is being used to hand federal immigration powers to runaway district court judges, with no rule or principle set forth beyond the fact that Biden should just lose, because they say so.
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Under Roberts, the Supremes are looking more and more like the deadly EOIR Star Chambers/Clown Courts!☠️⚰️🤡 Shamefully, the “Roberts Six” have “revived” the “essence” of perhaps the worst Supremes’ decision in U.S. history, Dred Scott, and gotten away with applying it to people of color in the 21st Century!
They have elevated utter BS and fabricated “injuries” manufactured in bad faith by vile right wing GOP State AGs over the human rights, lives, and human dignity of refugees seeking asylum! In particular, they have targeted bown-skinned women, children, and families legally seeking refuge! This is progress? Seems like the definition of “judicial cowardice” to me!
Meanwhile Garland inexcusably has failed to reform his Immigration Courts by replacing unqualified Immigration Judges and BIA Appellate Judges selected by his predecessors under highly questionable procedures with well-qualified progressive judges who are experts in due process and human rights.
Building a progressive Immigration Judiciary at EOIR is absolutely necessary to developing the legal skills to hold the anti-American far right at bay and eventually creating a better Article III Judiciary that will actually stand up for due process and equal justice for all persons in America. Something the “Roberts 6” have scandalously and spinelessly failed to do!🤮👎🏽
Garland’s “right hand man” on EOIR matters is eerily familiar, in a Himmleresque way! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com“Miller’s Mob” is still alive and well at Garland’s EOIR. Legal asylum seekers — not so well, not so alive! https://www.flickr.com/photos/rasputin243/ Creative Commons LicenseBIA Asylum Panel In Action — At Garland’s BIA, a “Miller-trained and inspired” Asylum Panel can, and does, kill dozens of unarmed asylum seekers in a single day to “make quota.” Despite being thoroughly discredited for judicial use, Garland has inexplicably continued due-process-denying, corner-cutting, quality-killing “production quotas” for his assembly line worker/judges in Immigration Courts! Albrecht Dürer, Public domain, via Wikimedia Commons.
Dan Kowalski reports for LexisNexis Immigration Community:
“Ms. Munyuh’s case concerns us. From our reading of the record, the IJ seemed determined to pick every nit she could find. Besides erring procedurally, the IJ discounted probative evidence on flimsy grounds and displayed a dubious understanding of how rape survivors ought to act. Although we give great deference to the IJ as factfinder, substantial-evidence review does not require us to credit the credibility finding of an IJ who cherry-picks from—or misconstrues—the record to reach it. The IJ must consider the “totality of the circumstances, and all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). At the very least, the two legal errors we have identified warrant remand. The IJ erred by failing to give specific, cogent reasons for rejecting Ms. Munyuh’s reasonable, plausible explanations for the discrepancies tied to her declaration that the police truck broke down after only four or five kilometers. And she further erred by discounting the supporting documentation without giving Ms. Munyuh adequate notice and opportunity to provide corroborative evidence. We therefore vacate the removal order and remand the case to the Board for further proceedings consistent with this opinion. PETITION GRANTED; VACATED and REMANDED.”
Congrats to Attorney Ronald D. Richey, who appeared before me many times at the Arlington Immigration Court.
Ronald D. Richey, Esquire Rockville, MD
Here’s a quote from the opinion by Senior Circuit Judge Danny Boggs, a Reagan appointee “on loan” from the 6th Cir., that shows the appallingly unprofessional performance of the Immigration Judge and the BIA in this “life or death” case:
On this point, the IJ made findings with which no reasonable factfinder could agree. She found Ms. Munyuh’s testimony that “the truck had traveled over two hours” to conflict with her earlier estimate that it had traveled “over an hour.” And she found Ms. Munyuh’s redirect testimony that “the truck [had] traveled approximately four to five hours before breaking down” to be “clearly in conflict with each of [Ms. Munyuh]’s prior estimations.”
But these time estimates are all consistent with each other. Indeed, assuming the truck really had traveled for four to five hours, Ms. Munyuh had no other choice but to give those answers. The IJ asked her if the truck had traveled more or less than an hour, to which Ms. Munyuh said more than an hour. Then the IJ asked whether the truck had traveled at least two hours, to which Ms. Munyuh answered in the affirmative.
No reasonable factfinder could find those two statements to conflict with Ms. Munyuh’s later testimony that the truck traveled for four to five hours. The IJ’s contrary finding is therefore unsupported by substantial evidence.
Wow! Is this what constituted “acceptable performance” when Judge Garland was on the D.C. Circuit? And, don’t forget, OIL actually defended this garbage product in May 2021, well after Garland took office and after experts had advised him to “clean house.”
The bad judges at EOIR whose lack of competence and/or bias unfairly condemn asylum seekers to persecution, torture and death, or all three, do NOT have life tenure and should NOT be on the Immigration Bench. Period! It’s not rocket science!
“No reasonable fact finder.” Isn’t that a problem in life or death cases? So-called “judges” who time after time stretch and misinterpret facts, ignore due process, and misapply basic asylum law to unfairly sentence asylum seekers to death! Why isn’t this grounds for removal from the bench? Or at least removing them from all asylum cases!
While Judge Boggs and his colleagues are rightfully “concerned” with EOIR’s performance in this case, Garland doesn’t appear to share those concerns. This is “business as usual” at Garland’s EOIR, just as it was when Stephen Miller was calling the shots! Obviously, Garland isn’t taking the human lives at stake here with even a modicum of seriousness. That’s totally unacceptable! Maybe Judge Boggs needs to pick up pen ✒️ and paper 📜 and express his outrage in writing to his former Circuit Court colleague, attaching an annotated copy of the garbage being turned out by his EOIR Star Chambers!
Just look the other way, it’s the Garland way! “Justice” Star Chamber Style
Also, don’t think that cases like this are an “aberration.” No, they aren’t! The only “aberration” is that this is one of a tiny sliver of injustices that was actually caught and corrected by the Article IIIs. How many unrepresented or under-represented individuals do you think that this judge and this BIA panel “railroad” in a week?
🏴☠️⚰️THEATER OF THE ABSURD: Incredibly, Garland & Mayorkas are now proposing to put this “Miller-Lite” EOIR infested with many incompetent, poorly trained, asylum-denying “judges,” with no credible leadership, totally lacking in professionalism and quality control, “in charge” of establishing precedents, insuring, and enforcing due process in their proposed “streamlined” asylum system! In other words, the solution for those who have repeatedly demonstrated an outrageous inability to conduct fair hearings and whose ignorance of asylum law and best practices is often stunning is to put them in charge of doing “paper reviews” of applications denied by Asylum Officers!
Good luck with that! Could there be a more insane proposal under current conditions? Making Stephen Miller the new “Asylum Czar” at EOIR? Perhaps, don’t be surprised!
Of course, in the nutsos world of Garland and Mayorkas, their fatally flawed proposal arguably would be a better than the current illegal and immoral use of Miller’s bogus Title 42 scheme to return legal asylum seekers to torture or death WITHOUT ANY PROCESS WHATSOEVER.
It’s simple. A complete “housecleaning” at EOIR, starting with the BIA, new progressive leadership and professional expert training at EOIR and the Asylum Office, new progressive asylum precedents and guidance, and an operating program for universal representation of asylum seekers are ABSOLUTE PREREQUISITES for fair and efficient regulatory reform of the asylum system! In the meantime, allow Asylum Officers to grant asylum to those who pass credible fear, but continue to give full Immigration Court hearings to any who can’t be granted. Get rid of Title 42 and start processing legal asylum seekers in an orderly fashion through ports of entry!
More than seven months into the Administration, Garland and Mayorkas could, and should, have had these needed progressive personnel, leadership, and structural changes in place, producing due process, and most important, actually saving lives! Instead, they have wasted time and squandered goodwill by continuing to run Stephen Miller’s White Nationalist system with Miller’s personnel in place! Simply incredible!
And, the bumbling, highly predictable weakness of the team of DOJ lawyers trying to defend the Administration’s few humanitarian immigration initiatives has become patently obvious. How can you expect lawyers who have spent the last four years misrepresenting asylum seekers as less than human and a threat to society suddenly start setting the record straight and effectively advocating for their human and legal rights? Obviously, they can’t! While EOIR is clearly the most glaringly dysfunctional part of DOJ, it’s obviously not the only problem and the only place Team Garland needed to (but didn’t) “clean house.”
I “get” that this isn’t Judge Bell’s, Ben Civiletti’s, or Janet Reno’s DOJ any more! But, remarkably, and tragically for the poor souls and their lawyers involved, Garland doesn’t!
Inside the Gulag — PHOTO: Creative Commons In the fine tradition of Josef Stalin, like US Presidents before him, President Biden finds it useful to have a “due process free zone” to stash people of color and other “undesirables” whose “crime” is to demand due process under law! How subversive!
The Supreme Court has decided a number of immigrant detention cases in recent years. Next Term brings another case. Alyssa Aquino for Law360 reports that the Court agreed today to review a Ninth Circuit decision that required bond hearings for immigrants who have been detained for more than six months with final removal orders. A split ruled that the Immigration and Nationality Act requires the federal government to hold bond hearings for detained migrants, and that the government bears the burden of proving that detainees are a flight risk or public safety threat.
Notice any difference between the Biden-Harris campaign rhetoric and actual performance once elected?
Never know when a “due process free zone” where individuals not charged with crimes can be detained forever without individualized bond determinations will be a handy hammer to have in your toolbox!
And, don’t forget those huge profits being raked in by the private detention industry, so beloved by DHS and politicos who receive contributions and can tout the “job creation” in the Gulag! Also, states and localities who rent out substandard prison space on questionable contracts love the Gulag!
Significantly, none of the lower court decisions the Biden Administration seeks to overturn requires the release of anyone! Nope! All the lower courts have done is to give the “civil prisoners” a right to plead their cases for release and to require the Government to provide an individualized rationale for continued indefinite detention! Sure sounds like simple due process to me!
Maybe, if Garland, Mayorkas, and the Supremes had a chance to spend a few “overnights in the Gulag” they would take the Fifth Amendment’s application to people of color in our nation and pleading for their lives at our borders more seriously!
🇺🇸Due Process Forever! The “New American Gulag,” Never!
ELIE MYSTAL, Justice Correspondent, writes in The Nation:
. . . .
The opinion is thorough and well-reasoned, and Judge Du’s arguments are so obvious in retrospect that it’s kind of amazing they aren’t a staple of the immigration debate in this country. But this is where Judge Du’s background perhaps becomes important.
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Miranda Du was born in Ca Mau, Vietnam, in 1969. Her family fled the nation after the Vietnam War when she was 9, first to Malaysia, before eventually making its way to Alabama. She went to Berkeley for law school and was an employment lawyer in Nevada when Harry Reid and Barack Obama made her a federal district judge in 2011. I would imagine that Judge Du looks at the US immigration system with a fresh perspective, at least as compared to a person like me, who was born here and has been taught to just accept a background level of bigotry as an immutable fact of immigration law. One of the more striking parts of her opinion in this case is the section in which she calls out other courts for not doing this sooner. She essentially says that courts in other jurisdictions that have looked at Section 1326 have blindly accepted the government’s reasoning that the 1952 reauthorization cleansed the statute of its racial bias, without really looking at the 1952 Congress.
The opinion is brilliant, and I’m going to print it out so I’ll still have a copy of it when Justice Samuel Alito and the other conservatives on the Supreme Court reverse it and order Du’s opinion to be nuked from orbit. There is, practically speaking, no chance this ruling survives Supreme Court review. The high court will skate over the disparate impact analysis by saying that any person, regardless of race, who crosses the southern border will experience the same over-enforcement. Or the court will reverse the ruling of racist intent by finding, as other courts have, that the 1952 Congress did cleanse the statute of racism. Or they’ll find that the government does have a legitimate and permissible interest in discriminating against southern border crossers. After all, the Supreme Court found bigotry to be okay in Trump v. Hawaii, which upheld the Muslim ban, so finding a reason to uphold Section 1326 will be child’s play for the conservatives who like a little bigotry in their immigration rulings.
And that’s if the case even makes it to the Supreme Court, which it probably won’t. Judge Du’s ruling will first be appealed to the US Court of Appeals for the Ninth Circuit, and I could see it getting reversed there. It’s unlikely that other liberal judges will even want to open this can of worms. As I said, Judge Du relies on a disparate impact analysis, and I can think of at least three Supreme Court justices who might be in the mood to overturn disparate impact analysis altogether.
Judge Du is right about the bigotry inherent in our immigration laws, but conservatives like the bigotry and liberals will be afraid that trying to stop it will just piss off the conservatives.
But at least this opinion exists now. It’s out there, and future lawyers and judges can read it and maybe think differently about the core assumptions at the heart of our immigration system. A lone federal judge cannot stop 100 years of bigoted policies, but if you want to know what a truly progressive legal analysis looks like, Judge Du just spelled one out.
Now, President Biden just needs to read it and go out and nominate 100 judges who agree.
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Read the full article at the link.
Biden could start by telling Garland to “redo” the U.S. Immigration Courts with well-qualified, expert, progressive judges in the “ Chief Judge Miranda Du” image!
Different backgrounds and new, “real life” perspectives! That’s why two decades of appointments of almost exclusively prosecutors and government bureaucrats, to the exclusion of human rights experts and advocates, to the Immigration Judiciary has produced such unfair and disastrous results for humanity and American law! Similar to other “blind spots” in American law, it has also created misery and cost innocent lives.
For the most part, judges of all philosophies hate being confronted with “ugly truths” about the system they are a part of. Consequently, the impetus to sweep historical truth and logical legal reasoning under the carpet when it produces uncomfortable, unpopular, and highly controversial results is overwhelming on all sides of the judicial spectrum, with the exception of a few “brave souls” like Chief Judge Du.
One of the most obvious and disgraceful of these “dodges,” is the abject failure of the Article IIIs to confront head on the clear Fifth Amendment unconstitutionality of the Executive’s “captive Immigration Courts,” particularly as currently staffed and still operating in “Miller Lite, White Nationalist mode.”
But, courageous decisions like this will be a part of our permanent legal history and come back to haunt today’s go along to get along Federal Judges, at all levels!
Kevin Robillard and Rowaida Abdelaziz report for HuffPost:
. . . .
There are currently more than 17,000 Afghan nationals — as well as an estimated 53,000 of their family members — awaiting visa approval through the Special Immigrant Visas (SIV) program. The U.S. brought over approximately 2,300 Afghans as part of the program from January to July, and another 2,000 over the last week.
The White House says it has cut the time necessary to approve SIV visas in half, and has issued more than 5,500 between April and July. But advocates say it needs to move faster.
“They seem to be afraid. They seem to be operating out of fear that being a bit bolder on issues with refugees, asylees and migrants will somehow cost them politically,” said former Housing Secretary Julian Castro, who made improving the country’s refugee system a central part of his 2020 presidential campaign. “This is an area where there’s growing disappointment and impatience ― and the stirrings of real anger ― towards the administration.”
. . . .
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Read the full article at the link.
Julian Castro should have been given a major role by the Biden Administration on cleaning house and straightening out the human rights disaster and dysfunction left behind by Trump and Miller. But, at this point, would he really want the job?
Citing Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), the Board concluded that “female nurses” were not a cognizable “particular social group” because being a nurse, like being a taxi driver, is not an immutable characteristic. The panel held that the Board erred by simply citing Matter of Acosta, and failing to provide any meaningful analysis about the immutability of “female nurses.” The panel explained that in contrast to Acosta, Plancarte cannot avoid compulsion by the cartel simply by changing jobs, because even if she ceased employment as a nurse, she would still be a nurse, as she has received specialized medical training and has a professional license as a nurse. Moreover, the cartel targeted Plancarte precisely because of her specialized nursing skills, and threatened her and her family with torture and death to force her to use those skills to provide medical treatment to the cartel. Thus, regardless of whether she would continue to work as a licensed nurse, Plancarte lacks “the power to change” the immutable nursing characteristics—her medical knowledge and nursing skills—that make her important to the cartel. The panel therefore granted the petition with respect to Plancarte’s asylum and withholding of removal claims, and remanded for consideration of the other required characteristics of her proposed particular social group of “female nurses.”
Turning to Plancarte’s CAT claim, the panel concluded that the Board’s decision ignored uncontradicted record evidence showing both acquiescence and direct involvement by government officials. The panel held that substantial evidence therefore compelled the conclusion that there was official involvement and acquiescence in the cartel forcing Plancarte to provide medical treatment to cartel members. The panel granted the petition with respect to CAT, and remanded for a determination whether the likelihood of
4 PLANCARTE SAUCEDA V. GARLAND
torture if Plancarte were returned to Mexico is sufficient to warrant CAT relief.
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Welcome to the “any reason to deny culture” at Garland’s EOIR!
In addition to the gross errors noted by the panel, I also think that there is a winning argument that being a registered nurse is “fundamental to identity” and therefore not something we should require an individual to change. Put it in today’s COVID context, for Pete’s sake!
Think that being a lawyer isn’t “fundamental” to the identity of a BIA Appellate Judge, an Immigration Judge, or an Article III Judge?Only when these “judges” are thinking of ways to deny protection to others do they engage in such obvious intellectual dishonesty and absurd reasoning!
This is the type of case that should have been a “quick grant” and a precedent for other grants of protection in a functioning justice system! Instead it’s an disaster! One that just happens to have been “outed” by a conscientious Court of Appeals panel — something no person of color can count on! It should be no mystery why this maliciously incompetent system creates huge, growing, out of control backlogs while squandering public resources and destroying lives!
Immigration Court— Failure
BIA — Failure
OIL — Failure
Garland — Failure
And this gang is going to be in charge of setting precedents and protecting due process and human rights of women and other asylum seekers under the Administration’s proposed “streamlined” asylum system? Absurd! It will be a death sentence for far too many refugees!
Congrats to Vallerye Allyn Anderson for saving a life here! Her outstanding performance and understanding of human rights were far superior to that of any “judge” or other DOJ lawyer involved in this case. So, why are the wrong judges still making life or death decisions at EOIR without competent “adult supervision” from qualified judges at the BIA with expertise in asylum law and the guts to apply it correctly, humanely, and generously? See, e.g., Cardoza-Fonseca, Mogharrabi, Kasinga. Just hope that Vallerye and others like her will pursue EOIR judgeships until the disgraceful, deadly, two-decade old “progressive expert lockout from the 21st Century Immigration Judiciary” finally ends and quality, courage, and due process prevail!
Vallerye Allyn Anderson ESQ Sacramento, CA PHOTO: LexisNexis
🇺🇸Due Process Forever! Failure to “clean house” of Miller Lite White Nationalism, it’s acolytes, go along to get along toady enablers, and to bring common sense, long overdue, obvious, recommended, available progressive human rights reforms and better judges and leaders to EOIR — An ongoing national disgrace!🤮
From “Letters From An American:”
– Sozi
