"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.
Michelle Rindels & Riley Snyder report for The Nevada Independent:
A federal judge in Nevada has ruled that a nearly 70-year-old section of law that makes it a felony to reenter the U.S. after being deported is unconstitutional, saying it was enacted with discriminatory intent against Latinos and therefore violates the Equal Protection Clause.
Judge Miranda Du issued an order on Wednesday dismissing a case against Gustavo [Carrillo]-Lopez, who was indicted last summer for being in the U.S. in spite of being deported in 1999 and 2012. It appears to be the first time a court has made such a decision, even though the statute known as Section 1326 has been under consideration by several district courts.
“Because Carrillo-Lopez has established that Section 1326 was enacted with a discriminatory purpose and that the law has a disparate impact on Latinx persons, and the government fails to show that Section 1326 would have been enacted absent racial animus … the Court will grant the Motion,” Du wrote.
The case is a blow for the Department of Justice (DOJ), which initially filed the charge during the Trump administration — an era of hardline immigration policies — but has since switched hands to the Biden administration. Left-leaning groups have asserted that the Trump administration had “weaponized” Section 1326 and other decades-old immigration laws as part of their “zero tolerance” immigration strategy.
Julian Castro, a former Democratic presidential candidate and secretary of the Housing and Urban Development Administration, tweeted that “this law has an incredibly racist history. I doubt the Biden DOJ will want to defend it in the appellate court.”
. . . .
The order notes that the law has a disparate impact on Latinos, noting that 87 percent of people apprehended at the border in 2010 were of Mexican descent. While the federal government argued those statistics are a function of geography and Mexico’s proximity to the U.S. rather than discrimination, Du said the argument was unpersuasive.
“The federal government’s plenary power over immigration does not give it license to enact racially discriminatory statutes in violation of equal protection,” Du wrote.
. . . .
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Read the complete article at the link,
Great decision! Notable for you “liberal artists” that historical analysis of racism and eugenics in America presented by Kelly Lytle Hernández, a history professor at UCLA, helped make the record and carry the day!
Just the kind of interdisciplinary interaction that permeates judging, particularly in immigration and human rights, and argues for more liberal arts grads with backgrounds in history, the humanities, linguistics, demographics, and social sciences on the Immigration Bench and the Article IIIs.
I’ve long criticized the “ahistorical” sometimes “anti-historical” approach taken by the BIA and other Federal Courts! For example, promoting the fiction that treaties, laws, ombudpersons, and even elections magically change centuries’ old animuses and make everything “hunky dory” for long-persecuted social, political, ethnic, religious, or racial groups.
Now, if we can only get the Article IIIs to do their job and hold the entire EOIR system, as currently operating, which has fatal racial bias, fairness, impartiality, expertise, and operational problems that make it a “walking violation of due process,” unconstititional, we could be on the way to the change America needs to bring an end to the present national disgrace in our Immigration Courts which is diminishing justice for everyone in America.
Additionally, despite life tenure, most Federal Courts have been reluctant to enforce the Constitution against the many Executive and Legislative abuses in the area of immigration and human rights. So, I would be disappointed, but not surprised, if this ruling is reversed on appeal.
Nevertheless, it’s an important step in exposing racism, connecting it with immigration, establishing truth, and fighting the Executive’s unconscionably bad and often illegal performance on immigration and race! While Garland might incorrectly think that immigration and human rights are “back burner” issues, by the time the NDPA is done with him they might well be issues that consume most of his time and irreparably damage his reputation. That’s why a wise Attorney General would be “leading the bandwagon for Article I” while immediately bringing in the progressive experts necessary to re-establish due process and efficiency at EOIR.
At any rate, this is exactly the kind of “creative disruption” that needs to happen until the system wakes up and makes the necessary progressive, due process, equal justice reforms long overdue at EOIR and other parts of the immigration bureaucracy.
Anna Marie Gallagher, Esquire Executive Director CLINIC PHOTO: CLINIC website
Here’s a statement from CLINIC condemning this Judge’s decision to reinstate the misnamed “Migrant Protection Protocols,” better known as “Remain in Mexico,” or more accurately as “Let ‘Em Die In Mexico:”
A Statement From the ED: CLINIC Condemns Federal Ruling to Resume Migrant Protection Protocols
SILVER SPRING, Maryland — The following is a statement from CLINIC Executive Director Anna Gallagher:
“CLINIC staff and volunteers have accompanied and provided legal counsel to thousands of men, women and children who sought safety at our doors, only to be stranded in Mexico in inhumane conditions through MPP. They desperately waited for protection and admission to one of the richest countries in the world, in increasing danger, by design of the U.S. government.
MPP is a national shame.
Jesus said, ‘whatever you did for one of the least of these brothers and sisters of mine, you did for me.’ Judge Kacsmaryk’s decision is contrary to man’s law and God’s law and must be overturned. We now call on President Biden to act on his faith and once again, end this policy that is so contrary to our values and who we aspire to be.”
CLINIC advocates for humane and just immigration policy. Its network of nonprofit immigration programs — 400 organizations in 48 states and the District of Columbia — is the largest in the nation.
In case you miss the irony, think of this: At the very moment we are pleading with the international community to help extricate us from the humanitarian disaster in Afghanistan, we are illegally and arbitrarily turning away legal asylum applicants at our border, many of them women and children with claims just as compelling as those from Afghani women and girls, and returning them to dangerous areas with NO PROCESS AT ALL!
And, Judge K would like to support his GOP White Nationalist buddies in Texas and Missouri by unlawfully reimplementing “Remain in Mexico” — a much-studied, vigorously and rightfully criticized program deemed a practical, human rights, legal, and humanitarian disaster by every credible human rights organization.
CLINIC is right: “Shame!”
The above statement is, of course, not the only cogent criticism I have received at Courtside about this decision. It just happens to be the one that appeared first in my Courtside inbox, courtesy of my good friend and NDPA stalwart Anna Marie Gallagher, Executive Director of CLINIC!
Hon. David Estudillo Washington State Judge Nominee for USDC WD WA PHOTO: YouTube
President Biden’s judicial nominees continue to maintain a truer representation of America. Judge David Estudillo, nominated for the Western District of Washington, would be only the second Latino judge to ever serve on that court. Confirming Judge Estudillo moves us toward a future where all people see themselves reflected on the federal bench. Can you help us urge the Senate to confirm Judge Estudillo?
Judge Estudillo has served as a state court judge on the Grant County Superior Court in Washington for six years. He previously operated his own law firm for 10 years where he represented people seeking asylum, DACA protections, work authorizations, temporary protected status, and citizenship.
His personal and professional experience would bring an important voice to a district that represents more than 1.1 million immigrants and nearly 1 million Latinx people. We must urge the Senate to confirm Judge Estudillo.
On July 15, the Senate Judiciary Committee voted to advance a number of Biden’s judicial nominees who will help restore integrity and fairness to the federal bench after Trump’s devastating conservative overhaul of our courts.
Judge David Estudillo is one of the nominees the committee advanced and one of three nominees currently pending on the Senate floor for the U.S. District Court for the Western District of Washington.
Judge Estudillo’s parents were farmworkers who immigrated to the U.S. from Mexico. If confirmed, he would be the second Latino judge ever to serve on this court. It is crucial that the more than 1.1 million immigrants and nearly 1 million Latinx people in Washington feel that they are represented on the courts by people who share their experiences and identities.
Even if you don’t live in Washington, we can all agree that confirming civil rights lawyers to our courts benefits every single person in the country. Confirming Judge Davis Estudillo moves us toward a future where all people see themselves reflected on the federal bench.
We don’t have billionaire backers like some right-wing media outlets. Half our revenue comes from readers like you, meaning we literally couldn’t do this work without you. Can you chip in $5 right now to help Daily Kos keep fighting?
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As I always say: “Better Judges for a better America!” This a step forward, although we still have a long way to go to repair the extensive damage inflicted on the Federal Judiciary by Trump & McConnell.
Moreover, as I will discuss below, one of America’s most important (and readily “improvable”) judiciaries, one completely controlled by the Biden Administration, the U.S. Immigration Court, has actually taken steps backward in terms of progressive appointments under Garland. It’s like a new coach taking over in the 4th quarter of a game his team is losing 48-7 and saying “OK, let’s spot them another 17 points before we start playing to win!” Incredible, yet, sadly, true!
As the latest census shows an increasingly diverse America, the Article III Federal Judiciary remains an embarrassing backwater of “non-diversity.” This was intentionally aggravated by Trump & McConnell who, as noted above, elevated primarily White ultra right wing men, many with thin or questionable qualifications, to the Federal Bench!
As stated above:
It is crucial that the more than 1.1 million immigrants and nearly 1 million Latinx people in Washington feel that they are represented on the courts by people who share their experiences and identities.
Evidently, AG Merrick Garland and his team @ DOJ haven’t gotten that message. So far, Garland’s appointments to the Immigration Court, and the composition of his BIA, look more like Stephen Miller’s, Billy Barr’s, and Jeff “Gonzo Apocalypto” Sessions’s “skewed whitewashed vision” of America than they do the real America. That’s particularly true when you consider the American communities whose lives and futures are existentially affected (primarily adversely) by substandard and biased EOIR decisions that continue to be cranked out under Garland. This is despite a few moves by Garland to “kill off” the most horrible of the many bad precedents cranked out by the AG and the BIA during the Trump regime.
Judge Estrada sounds like just the type of individual that Garland should be appointing to theU.S. Immigration Court and the BIA. Compare Judge Estrada’s experience, qualifications, and “real life” background and human engagement with the lackluster profiles of Immigration Judges recently appointed by Garland and with many of those appointed to the Immigration Court and the BIA over the past two decades.
There are plenty of diverse, extraordinarily talented, courageous, practical experts out there in the NDPA to reform and improve the EOIR Judiciary at all levels! Many haven’t applied in the past (or have had their applicants rejected in favor of lesser-qualified candidates) because of the White Nationalist, xenophobic, nativist tone set by Sessions and Barr. Indeed, I spoke over the weekend to one of the leading progressive immigration/human rights experts in America who felt that way. Obviously, I encouraged that “NDPA superstar” to submit the applications — not just for EOIR but also for the Article III Judiciary which also needs to get its act together on human rights, immigration, and racial justice.
Garland & team need to reform and improve the selection criteria, involve outside expert input, and then actively recruit the “best and the brightest” from the NDPA to remake and elevate the Immigration Judiciary! As I have mentioned before, my colleagues in the Round Table and I have done more outreach, cajoling, inspiring, and recruiting among the progressive immigration and human rights community to apply for EOIR jobs than have those at DOJ and elsewhere in the Administration whose job it should be to do just that! It’s ridiculous, and it’s wrong!
No wonder things continue to be an ungodly mess at EOIR despite mountains of blueprints, action plans, and other readily achievable reform recommendations and proposed improvements produced by practical experts in the immigration/human rights/racial justice community! The Immigration Judiciary cries out for diverse, progressive, talented, practical scholar “role models” drawn from the NDPA!
Lucas Guttentag, are you listening somewhere out there? Don’t get co-opted by the DOJ bureaucracy that overall failed to stand up to Trump and his gang of insurrectionists! Don’t let the new leadership at DOJ “de-prioritize or back burner” essential, long overdue, achievable EOIR reforms! Expose “Obamathink revolution by evolution” as the ridiculous and dangerous nonsense that it is (and always was)! Fight for your ideals, speak out, and shake up this disastrously broken and unfair system with the progressive change we need! At this point in your distinguished career, what do you have to lose? Those who consciously chose “not to rock the boat” at EOIR in the past, when human lives, due process, and human dignity were at stake, now share in the responsibility for its sinking!
As the human rights situations in Afghanistan, Haiti, and the Northern Triangle continue to unravel, the lack of a coherent, operational, legally sound, properly generous refugee and asylum program will continue to haunt the Administration;
In particular, the disgraceful failure to establish a strong, consistent, humane, and protection-oriented interpretation of gender-based asylum to protect women, who are disproportionately targeted for persecution, torture, and other violence, will cost lives of the most vulnerable and be a lasting stain on our nation. (I just listened to Peter Baker, NBC WH Correspondent, on Meet the Press, characterize Afghanistan under the Taliban as a “nation of spouse beaters!”)
The need to fix our our refugee and asylum systems immediately was obvious on January 20, 2021. Why, after 7 months it still is nowhere close to being accomplished is less obvious!
The turmoil in Afghanistan and Haiti and the ongoing human rights disasters in Latin America, all reasonably predictable, are going to increase the human and political problems flowing from a failure to take human rights seriously and to bring the practical human rights experts necessary to solve these issues constructively into the Government power structure! In the end, human rights are everyone’s rights! We ignore that at our peril!
Ironically, while protecting women from persecution and improving their lives was used as a justification by Administrations of both parties for our continuing military presence in Afghanistan, now, as the “end game” plays out in real time, it appears to have been largely reduced to a “talking point” (or a “news feature”) without any discernible plan for protecting or saving Afghan female refugees. Sadly politicos and officials from both parties seem more interested in using women’s lives as “cover” for two decades of ultimately futile presence there than with actually saving any lives now. Indeed, if we treat Afghan women refugees with the inhumane indifference we have continued to heap on female refugees seeking legal asylum at our Southern Border, their outlook is beyond grim.
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — Some Life-tenured Federal Judges abuse their privileged positions to insure that this is what “due process” will look like for asylum seekers of color! 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)
Here’s the decision from U.S. District JudgeMATTHEW J. KACSMARYK in Texas v. Biden:
Judge Kacsmaryk was appointed to the bench by Trump & McConnell in 2019. He is a former Federal prosecutor, deputy general counsel of a right wing religious group, and member of the Federalist Society. His nomination was (obviously unsuccessfully) opposed by more than 200 prominent civil rights, religious tolerance, and human rights groups.
Here’s an excerpt from their letter in opposition addressed to the Senate:
On behalf of The Leadership Conference on Civil and Human Rights, a coalition of more than 200 national organizations committed to promoting and protecting the civil and human rights of all persons in the United States, I write in strong opposition to the confirmation of Matthew Kacsmaryk to be a U.S. District Judge for the Northern District of Texas.
Nominees to the federal courts must be committed to respecting the law, Constitution, and core American values of justice, fairness, and inclusivity. Mr. Kacsmaryk does not meet this standard. He is an anti-LGBT activist and culture warrior who does not respect the equal dignity of all people. His record reveals a hostility to LGBT equality and to women’s health, and he would not be able to rule fairly and impartially in cases involving those issues.
Interestingly, the letter was signed by none other than Vanita S. Gupta, then President & CEO of the Leadership Conference on Civil and Human Rights and currently the Associate Attorney General of the U.S.
Gupta and her colleagues had Judge K “pegged” as an unqualified righty bigot then! But, with the lineup currently in place at the 5th and the Supremes, it remains to be seen whether there is any effective short-term remedy for his grotesque abuses of power and human rights.
Judicial appointments are important! Maybe it’s time for Gupta and others at DOJ to treat Immigration Judge and BIA appointments as such!
🇺🇸Due Process Forever! Better Federal Judges for a better America!
U.S. Department of Justice Office of the Attorney General
(1) Matter of A-C-A-A-, 28 I&N Dec. 84 (A.G. 2020) (“A-C-A-A- I”), is vacated in its entirety. Immigration judges and the Board should no longer follow A-C-A-A- I in pending or future cases and should conduct proceedings consistent with this opinion and the opinions in Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021) (“L-E-A- III”), and Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (“A-B- III”).
(2) The Board’s longstanding review practices that A-C-A-A- I apparently prohibited, including its case-by-case discretion to rely on immigration court stipulations, are restored.
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Way to go Judge Garland!
Yes, I feel good about this! This was one of the “Sessions-Barr follow-ons” to A-B-, L-E-A-, and Castro-Tum that had undermined due process and fundamental fairness while inhibiting sound case management. It was part of a virulent, racist, anti-asylum agenda promoted by Trump and Miller and unethically carried out by Sessions and Barr. It was a backlog-building, due-process-denying national disgrace to be sure! One that unethically targeted people of color and sought to improperly eradicate our legal (and moral) obligations to protect refugees — without any legislative authority!
Prohibiting an appellate body from accepting party stipulations below or honoring concessions on appeal is simply insane! Why would any party stipulate to an issue if it will simply be ignored on appeal?
Stipulations are a really important part of encouraging efficiency in litigation and reducing backlog. I used them all the time at both the BIA and the Arlington Immigration Court!
Why on earth would the BIA revisit an issue that was so well-established and logical that the parties had already agreed upon it below? Why would an already overwhelmed tribunal be required to decide issues that were uncontested by the litigants?
No wonder the Immigration Court system was completely out of control and counterproductive during the Trump Administration!
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — The Biden Administration still can’t get beyond this “vision” of appropriate treatment of legal asylum seekers. This is the “human face (down)” of “deterrence-only policies.” Six months in, and the Administration still has nobody in leadership who understands human rights, refugees, asylees, and the relationship of scenes like this one to the overall failure of equal justice and dimishment of the rule of law in America. 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)
However, lest we start thinking that the Biden Administration finally “gets it” on asylum policy, DHS immediately countered with a totally tone-deaf announcement on “punishing” asylum seekers for the Administration’s failure to live up to it’s campaign promises ands re-establish a viable legal asylum system at the border:
DHS Statement on the Resumption of Expedited Removal for Certain Family Units
Release Date:
July 26, 2021
Beginning today, certain family units who are not able to be expelled under Title 42 will be placed in expedited removal proceedings. Expedited removal provides a lawful, more accelerated procedure to remove those family units who do not have a basis under U.S. law to be in the United States.
Attempting to cross into the United States between ports of entry, or circumventing inspection at ports of entry, is the wrong way to come to the United States. These acts are dangerous and can carry long-term immigration consequences for individuals who attempt to do so. The Biden-Harris Administration is working to build a safe, orderly, and humane immigration system, and the Department of Homeland Security continues to take several steps to improve lawful processing at ports of entry and reforms to strengthen the asylum system.
Perhaps somebody needs to tell these DHS/Biden Administration scofflaws that: 1) we have no functioning legal asylum system at ports of entry right now; and 2) refugees and asylees can’t wait for the Administration to get its act together. As one asylum seeker from the Northern Triangle stated in a recent Courtside post: “Nobody wants to die.”
Deterrence always has been and always will be a failure, both in terms of legal policy and morality. We need some progressive experts with some guts and ability “on the inside” to fix this system before more lives are lost.
Enough with the inane “wait to die” deterrence statements that actually insult the intelligence of asylum seekers and demean their dire situations! Fixing this system is not rocket science! But, it requires some progressive human rights leadership and expertise now sadly lacking in the Biden Administration’s approach!
Attorney General Merrick B. Garland — His poignant recollection of the inability of his great aunts to find refuge in the U.S., and their resulting deaths in the Holocaust, haven’t stopped him from daily “pushing the St. Louis back out to sea” and denying legal protections and full due process to asylum seekers at our Southern Border and at EOIR — his “wholly owned court system” that functions more like a branch of DHS enforcement than a court of law! Official White House Photo Public Realm
“Garland believes that a thorough de-Trumpification of the Justice Department would … be called partisanship and would call into question the institution of the Justice Department, but the institution has already been called into question,” says Jeff Hauser, executive director of the Revolving Door Project of the Center for Economic and Policy Research. “Sessions and Barr came in with a goal of assaulting and undermining the institution of the Justice Department, and it’s just weird to presume that they failed. We presume that they succeeded. They were in the building. They hired their minions. They assessed people. They politicized everything. Garland presuming that the previous Department of Justice was behaving in good faith requires the same suspension of disbelief as believing dragons are real in a fantasy novel.”
. . . .
And so, we’ll also be judging Garland by another standard: how well his approach fortifies the institution against a future administration that once again disrespects norms and politicizes the rule of law.
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These quotes go to the heart of the problem with Garland’s stewardship and his naive, ivory tower, ineffectively timid approach to restoring the rule of law at Justice. “By the book” is NOT an effective strategy against opponents who seek to burn the book, bury the ashes, and lie about it! It’s basically no “strategy” all!
I’d be shocked, as would most knowledgeable observers, if the next GOP Administration doesn’t “disrespect the norms and politicize the rule of law.” Not only have the past two GOP Administrations done exactly that, in spades, but that’s basically what today’s GOP stands for: neo-fascist, anti-democracyrule based on big lies and a cult of personality.
To the extent the modern GOP believes in anything, it’s the exercise of power without restraint of law or morality. “Why? Because we can, and you can’t stop us. We’re in power, and you aren’t,” was largely the Trump McConnell mantra, particularly when it came to judges. How did the dying plea of RBG and the appeals of Dems for fairness and consistency in Supremes’ appointments work out? It was a classic “heads I win, tails you lose” that once again left the Dems grasping at thin air.
So, these folks are going to respect long-gone “norms” from the 1970s? “Norms” that couldn’t and didn’t stop Ashcroft, Gonzalez (“Gonzo I”), Mukasey, Sessions, or Barr? You have to be kidding? I don’t know what universe Garland has been living in for the past four plus years, but it doesn’t appear to be this one.
Contrary to Garland’s approach, there is absolutely nothing wrong with:
Coming clean on recent abuses at DOJ;
Replacing lawless immoral intentional misconstructions of law with better progressive ones that adhere to and further both the rule of law and “good government;” and
Replacing political hacks who furthered the White Nationalist agenda or other personnel who “went along to get along” with abuses, to keep their jobs, with progressive experts committed to due process and best practices who’ll get the job of restoring the rule of law, respect, and human dignity done.
Not only is there nothing wrong with the foregoing, but they are moral and practical imperatives if lives are to be saved and our democracy preserved! For Pete’s sake, these are actually the things that Biden and Harris campaigned upon and won! Why is Garland reticent to act upon truth?
This isn’t an “academic exercise!” It’s an actual life or death moment for migrants and for our democracy! And, the opponents are not folks who intend to honor norms established by Garland or any other Dem.
Indeed, they will characterize all of his actions as “radical socialism,” as they already have, regardless of the truth. In many ways, Garland’s incremental, largely passive, approach to “de-Trumpifying justice @ Justice” has been a huge gift to GOP anti-democracy insurrectionists and restrictionists. But, if I were him, I wouldn’t wait for the “thank you note.”
To shrink from the bold decisive actions necessary to clean up the disgraceful mess at the DOJ and its most grotesque manifestations at EOIR shows not only a lack awareness, but a lack of beliefin the progressive, democratic, humane values that got Biden and Harris elected in the first place and got Garland his job.
And, it’s not as if the problem with the values and institutional integrity at DOJ started only in the Trump regime. Under Bush II, Ashcroft and his advisor, notorious White Nationalist xenophobe Kris Kobach, had their plan to dismantle due process and fundamental fairness in the Immigration Courts, through compromising the BIA, in action before they even set foot in the building 10th & Pa. Ave.Those changes have actually cost some migrants their lives, and some DOJ attorneys their jobs (for the “crime” of standing up for due process for migrants) even before the Trump kakistocracy arrived.
And, al la Garland, the Obama Administration’s failure to either acknowledge the historical truth or take the obvious and necessary corrective actions sent our Immigration Courts and justice for migrants into a steep decline that became a “death spiral” under Sessions (“Gonzo Apocalypto”) and Barr and continues its accelerated downward trajectory under Garland. It’s a contributing factor in the largely self-created 1.3 million case Immigration Court backlog generated by Sessions and Barr at EOIR.
Indeed, the lack of quality, intellectual honesty, practical guidance, humane values, common sense, expertise, and legitimacy at EOIR has spread to and adversely affected other areas of our beleaguered justice system and now threatens to take down everything in a messy heap. Why a former Article III Appellate Judge can’t grasp that reality and act accordingly is beyond me.
Maybe its because he didn’t personally experience enough of EOIR’s deadly, failed, corner-cutting “work product” at the D.C. Circuit because DC has no “resident Immigration Court.” Maybe it’s because he can’t “connect the dots” between his relatives who died in the Holocaust and having no legal asylum system for those arriving at our Southern border and denying asylum seekers full due process every day @ EOIR.
For the reasons set forth in the article, it seems that Judge Garland is philosophically and by personality incapable of leading and implementing long overdue, critical progressive changes at this point in his otherwise distinguished career. The only hope would be that one of his advisors could light a fire and get him out of his inept centrist institutionalist funk.
But, the two best hopes to do that, Associate Attorney Vanita Gupta and Assistant AG for Civil Rights Kristen Clarke, who should be personally familiar with the practical and racial justice disaster at EOIR and its overall adverse effects on justice in America, have failed to make a visible impact.
Garland needs a practical expert like Dean Kevin Johnson at U.C. Davis Law, Professor Karen Musalo at the Center for Gender and Refugee Studies at Hastings Law, Jaya Ramji-Nogales, Associate Dean at Temple Law, Judy Rabinowitz at ACLU, Marielena Hincappie at the National Immigration Justice Center, or someone of equal expertise and stature in civil and human rights to advise him and lead the reform effort at EOIR. Sadly, he does not appear interested in surrounding himself with such capable, talented individuals who could “save him from himself” while saving the lives of those like his great aunts who perished in the Holocaust for want of a viable refugee and asylum system.
Like Garland, I was at the DOJ during the Levi-Civiletti post-Watergate reform era. I once knew him and certainly helped out his “boss” Ben Civiletti on several occasions.
Somewhere in the “archives,” I have a handwritten note from Ben Civiletti expressing his gratitude that he never had to use the “administrative subpoena” and “designation as an “immigration officer” that I had drafted for him in the midst of one of a number of “immigration emergencies” involving a plane on the tarmac.
Somewhere along the line, Merrick seems to have forgotten that even Civiletti was willing to take bold actions when necessary to advance the cause of immigration justice! There was no “precedent” for the Attorney General personally serving an INS subpoena. But, Civiletti was on the verge of doing it, until “Plan A” prevailed, and the crisis was resolved without resorting to “Plan B” or even “Plan C.”
I was also there and directly affected when the likes of Ashcroft, “Gonzo I”, Kobach, and Mukasey cut through those post-Watergate reforms at EOIR as though they never existed, with little resistance except for a few of us “survivors” who adapted and continued to fight for due process and individual justice in a deteriorating system.
I watched in disgust and disbelief as the Obama Administration (“change?” — not so much in immigration) completely “blew” the opportunity to make life and democracy saving corrections at EOIR. I then saw from the outside as “Gonzo Apocalypto” and Barr aggressively and systematically dismantled American justice, starting with the Immigration Courts. Their job was made infinitely easier by the indolence of the Obama Administration in failing to systematically bring progressive reforms and appoint more progressive judges at EOIR.
But, those of us “on the outside” were not just “passively outraged” by the due process and human rights abuses flowing from DOJ, we took action! Among many groups forming the New Due Process Army (“NDPA”), our Round Table of Former Immigration Judges, some of whom had resigned or retired as an act of conscience, helped lead the charge against the Trump regime’s inhumane, scofflaw policies and bogus legal interpretations.
We filed over 100 amicus briefs in tribunals from the Supremes to the BIA, many of them successful in helping to correct and reverse the regime’s anti-due process, anti-immigrant, racially driven policies. We also wrote, educated, did media interviews, organized, inspired others to join the resistance, and voted for change!
Even assuming, as I do, that any future GOP Administration would move to undo progressive reforms and replace progressive judges, their job would be made much more difficult if Garland creates the progressive judiciary that he should at EOIR. Moreover, even if exiled, “trueprogressive practical scholars” will form the expert backbone of the resistance to neo-fascism in the “next generation” of the Round Table and the NDPA.
Some “graduates” of a progressive Immigration Judiciary could be elevated to the Article III Judiciary where they will have continuing beneficial influence beyond the ability of the next GOP Administration to change. Others could use their knowledge of the system to fight the forces of nativism, restrictionism, White Nationalist myths, and mindless cruelty. Others will run for office and improve our moribund legislative branch! Who knows, we could even get Article I during the Biden Administration, giving a progressive immigration judiciary yet another degree of protection from right-wing political shenanigans!
Garland’s “stuck in the irretrievable past” approach to EOIR and the DOJ generally is blowing a golden, perhaps never-to-come again, chance to finally create an effective progressive judiciary at EOIR and, perhaps most important, to save lives and stop “pushing the St. Louis” back out to sea! It’s something that Biden can’t fully achieve in the Article IIIs. It’s painful to watch him squander the opportunity.
Merrick Garland might well have been a great Supreme Court Justice had Mitch McConnell and the GOP had a serious interest in institutional integrity and preserving norms. They didn’t (which should have been “signal” that got Garland’s attention)! Garland might also have been great Attorney General in a bygone era.
Sadly for both Garland and America, he’s not the “right fit” for the job under today’s realities. Not only will that forever tarnish his reputation, but it could well cost the rest of us our democracy.
🇺🇸Due Process Forever! Timidity and false “restraint” in delivering equal justice for all, never!
The meek might well inherit the earth in the next world. But, they won’t restore the rule of law to the Department of Justice in this one!☠️
Come on, Judge Garland, take off the blinders and show that you are smart, flexible, and capable enough to get beyond the limitations of your past experiences and take the bold, aggressive, courageous, potentially controversial, yet absolutely necessary and long overdue, actions necessary to restore the rule of law at Justice in the 21st year of the 21st Century. And, that starts with progressive due process reforms and major personnel changes at EOIR!
PWS
07-26-21
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HISTORICAL ADDENDUM FROM HON. “SIR JEFFREY” CHASE:
I actually had Civiletti’s desk at the BIA (I was told that Tony Moscato had brought it with him from Main Justice).
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — The Biden Administration’s continuation of the Trump regime’s illegal and deadly anti-asylum policies at the border is totally unacceptable! 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)
FROM SPLC:
The message was loud and clear: “Do not come.”
This would be the Biden administration’s initial attempt to deter migrants who fled danger in their home countries from seeking protection in the U.S.
First, President Biden in March discouraged migrants from trekking north to the U.S.-Mexico border to seek asylum. He suggested they stay in their home countries – where many face violence and persecution – as the administration addressed an increase in the number of unaccompanied migrant children crossing the southwestern border.
Then, the administration continued to rely on the contested Trump-era Title 42 order by the Centers for Disease Control and Prevention (CDC) to reject migrants at ports of entry and expel those who cross the U.S.-Mexico border without authorization, thereby denying their legal right to seek asylum.
And in June, the administration delivered another warning to would-be asylum seekers from Guatemala: “Do not come,” said Vice President Kamala Harris during a news conference alongside Guatemalan President Alejandro Giammattei. “The United States will continue to enforce our laws and secure our borders. If you come to our border, you will be turned back.”
Sarah Rich, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project, said the vice president’s comments were strikingly similar to rhetoric employed by the Trump administration.
“Seeking protection from violence and persecution is a fundamental human right, and the right to seek asylum is protected by U.S. and international law,” Rich said. “These remarks fly in the face of the right to seek asylum in the U.S. and indicate a disturbing continuity between the Trump administration and the Biden-Harris administration.”
For many migrants in peril, waiting in their home countries for a better time to seek asylum in the U.S. is not – nor could ever be – a viable option.
“I fled my country because I wanted to survive,” Emiliana Doe, whose name has been changed in this story to protect her identity, told the SPLC in Spanish. “I want to live. I want to be somebody. Nobody wants to die.”
Speak out against the Biden Administration’s continuation of Trump’s illegal, inhumane, anti-asylum policies at the border! Demand that AG Garland replace unqualified “Miller Lite” anti-asylum Immigration Judges, who happily furthered the past regime’s xenophobic, anti-due-process policies, with far better qualified progressive experts! Demand a BIA that will be a courageous leader in granting legal protection and reducing backlogs through best practices and full due process! Demand that Garland stop dragging his feet and finally fulfill the original EOIR vision of “guaranteeing fairness and due process for all.” Demand an Attorney General with the backbone and integrity to tell Biden, Harris, & Mayorkas that their continued abrogation of asylum laws and international obligations, not to mention Constitutional protections, is grossly illegal and must end NOW!
By contrast with Garland’s timid, dilatory, and often apparently indifferent approach to the rule of law for migrants, not to mention human lives, Jeff Sessions had absolutely no problem intervening, without invitation, in any agency’s programs and policies to advance his White Nationalist, nativist, xenophobic mis-interpretations of the law!
“Today, a federal district court judge in Oakland, California, approved a final settlement in the case of Vangala v. USCIS, providing relief to over sixty thousand applicants for humanitarian immigration benefits. The lawsuit, filed on November 19, 2020, against U.S. Citizenship and Immigration Services (USCIS), challenged an agency policy adopted under the Trump administration specifically targeting humanitarian benefits for survivors of domestic violence and human trafficking and asylum seekers. Under the policy, USCIS rejected applications that left any question in the application unanswered, even where the question was not applicable—for example where the applicant failed to include a response for middle name because they have no middle name. Additionally, USCIS rejected applications where the applicant wrote “none” or “not applicable” instead of “N/A.”
The lawsuit was filed by Northwest Immigrant Rights Project (NWIRP), the National Immigration Litigation Alliance (NILA), and the Van Der Hout law firm, on behalf of three applicants who sought to represent a nationwide class of individuals whose applications were rejected under the policy. They alleged that the policy was nothing more than a pretextual basis for denying applicants the opportunity to obtain humanitarian benefits provided by Congress.
On December 22, 2020, the agency agreed to suspend the policy, and the parties then entered settlement discussions to address the tens of thousands of applications that USCIS previously rejected. The U.S. district court adopted and approved the final settlement agreement on July 20, 2021.
Under the settlement agreement, USCIS will accept the original submission date of the more than sixty thousand applications it has identified as having been rejected under the policy. USCIS will send notices to these applicants explaining the steps they can take to ensure that their applications for humanitarian benefits are recorded as having been filed as of the date they were originally submitted. Without this relief, these applicants not only would suffer the delays caused by USCIS’ rejection of their applications, but many applicants or their family members would be rendered ineligible because they were unable to file the required forms by timelines specified in the statute.
In addition, the settlement agreement prevents the agency from adopting a similar rejection policy with respect to other immigration forms unless authorized by statute or lawfully implemented through regulations.
“It was an outrageous policy clearly aimed to impede individuals from obtaining the humanitarian benefits that Congress has provided,” said Matt Adams, Legal Director for NWIRP. “It aptly demonstrates the Trump administrations’ utter disregard of the law.”
“USCIS’ rejection policy served no legitimate purpose,” said Mary Kenney, Deputy Director for NILA. “Tens of thousands of applicants will now, finally, be able to move forward with applications that the agency should have accepted in 2020.”
The settlement agreement is here and order approving the settlement agreement can be found here.
#####
Media contacts:
Trina Realmuto, National Immigration Litigation Alliance
Cruelty, stupidity, illegality, wasting Government resources! So, what else is new about the Trump kakistocracy’s immigration policies and procedures? Wonder why all immigration agencies are running out of control backlogs? Don’t blame the victims — the migrants exercising their legal rights!
In direct contravention of the intent of Congress in structuring DHS so that the “customer services” to migrants and their families would be separate, and no longer subordinate to, immigration enforcement, the Trump kakistocracy turned USCIS into a semi-useless branch of their corrupt, yet inept, White Nationalist enforcement agenda. So incompetent and inappropriate were Trump’s actions that his lackeys managed to “repurpose” USCIS, once one of the few self-sustaining independently funded agencies within Government, into a deficit promoting, bankrupt, money pit.
And, it was a cesspool that failed miserably in its primary mission of serving those seeking legal immigration status, their families, and their employers. A primary reason why the Biden Administration is having difficulties with immigration and human rights is the illegal eradication by the Trump regime of the U.S. legal immigration system, particularly our refugee and asylum systems.
That leaves those suffering from persecution and torture in need of legal protection with no choice but to use the “extralegal system.” Far from their stunningly false claim to have “enhanced” immigration enforcement, the GOP nativists have also destroyed rational, practical, targeted enforcement with their nonsense. Don’t let them get away with blaming the Biden Administration and the victims of their cruel and often illegal behavior which produced the results that many of us predicted!
The next time you hear Ted Cruz, Tom Cotton, or some other GOP nativist restrictionist disingenuously blabbering on about “rewarding lawbreakers” or “doing it the right way,” remember that largely because of them and the Trump regime, America has no functional immigration system for refugees, asylees, or any other type of legal immigrants, nor do we have a functioning Immigration Court system!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Unaccompanied immigrant minors wait on July 2, 2019 in Los Ebanos, Texas to be transported to a U.S. Border Patrol processing center after entering the U.S. to seek political asylum. John Moore/Getty Images
US immigration judges considering asylum for unaccompanied minors are ‘significantly influenced’ by politics
July 13, 2021 8.30am EDT
Authors
Daniel Braaten Associate professor of Political Science, Texas Lutheran University
The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.
In March 2021, the number of unaccompanied minors apprehended in the U.S. reached an all-time monthly high of 18,890. This surpassed the previous monthly high of 11,681 in May 2019.
One question not addressed in many of these stories is: How many of these children actually receive asylum and are allowed to stay in the country?
The people who make those decisions are immigration judges. Their decisions are supposed to be based on whether these children have fears of being persecuted in their home countries and whether these fears are realistic.
But our research examining the period from early October 2013 until the end of September 2017 shows that these judges were influenced by factors outside of the case. Political factors such as ideology, political party of the president who appointed them and who was president at the time they decided the case significantly influenced whether these children were allowed to stay in the country.
Aside from political factors, immigration judges are also influenced by local contexts, such as unemployment levels, the number of uninsured children and size of Latino population in the places where they work.
Unaccompanied minors and asylum
Under U.S. law, an unaccompanied minor is a child under 18 years old who does not have lawful immigration status and no parent or legal guardian in the country who can provide care or custody.
Unaccompanied minors cannot be refused entry or removed from the country without legal process because of the 1993 Supreme Court case Reno v. Flores. In 2008, new legislation allowed asylum officers to grant these children asylum at the U.S. border. If the asylum officer denies asylum to the minor, the minor may request asylum before an immigration judge.
Because immigration judges are not appointed under Article III of the Constitution, as federal judges are, they have less independence than those federal judges. According to current Justice Department rules, immigration judges are appointed by the attorney general and they act as his or her delegates.
Political pressure
In order to learn what factors affect the grant of relief to unaccompanied minors, we obtained data on their asylum applications from Oct. 2, 2013 to Sept. 29, 2017, covering over 10,000 cases from 280 different judges in 46 counties and 27 states.
Only 327 of the unaccompanied minors actually received asylum; 2,867 were deported and 455 chose to voluntarily leave.
An additional 6,645 children were allowed to stay in the country. Of those, 3,589 had their case administratively closed, which allows judges to suspend the case indefinitely without hearing and deciding on it. The remaining 3,056 had their case terminated, which means that the case against the child was dismissed.
The fate of unaccompanied minors entering the US
A review of about 10,000 asylum applications for unaccompanied minors from October 2, 2013 to September 29, 2017 found the majority of the minors were allowed to stay (in green), most because a judge either dismissed or indefinitely suspended the case against them. Only 327 were granted asylum.
Bar charts grouped to show significantly more unaccompanied minors were allowed to stay.
We ran a statistical analysis of political factors that may influence immigration judges’ decision: judicial ideology, political party of the appointing president and whether the decision was made before or during the Trump administration.
Following previous research on immigration judge’s ideology, we determined a judge’s ideology by considering their prior work experiences. Based on this research, we determined that some experiences, such as working for immigration agencies, are associated with more conservative views on immigration and asylum issues.
Conversely, work experiences in an immigration or non-immigration-related nonprofit or academia are associated with more liberal views. Our analysis showed that immigration judges with more liberal judicial ideology were more likely to rule in favor of granting asylum to these children.
Judges’ ideology can influence asylum decisions
Immigration judges who are more liberal tended to allow unaccompanied children to stay in the U.S. more often, compared to more conservative judges. Ideology was determined from each judge’s prior work and ranges from 1-11, most conservative to most liberal.
Area chart showing how children allowed to stay rose with more liberal judges.
We also found that judges who were appointed by a Democratic attorney general were more likely to rule in favor of the minors.
Political party of attorney general who appointed the judge
Immigration judges appointed by Democrats were more likely to allow unaccompanied minors seeking asylum to stay in the U.S. than those appointed by Republicans.
Bar charts showing judges appointed by Democrats were more like to allow unaccompanied children to stay in the U.S., but GOP-appointed numbers were also above 62%.
Finally, statistical analysis showed that immigration judges were less likely to grant relief during the eight months of the Trump administration compared to the last three years of the Obama administration.
President at the time the case was decided
Immigration judges were more likely to allow unaccompanied minors seeking asylum to stay in the U.S. during the Obama administration than during the Trump administration.
Why did politics and judges’ ideology play into their decisions?
We believe it’s because immigration judges are subject to political pressure from the president, indirectly, because they are appointed by the attorney general, who is also a presidential appointee and carries out the president’s policies and wishes.
Local environment
Pressure from the executive branch was not the only factor we concluded had influenced whether these children got to stay in the U.S. or were turned away. Aside from political and ideological values, judges may also have been influenced by their local contexts.
For example, we found that immigration judges in places with more Latinos were more likely to let these children stay. Conversely, immigration judges in states with lots of poor children were less likely to let these children stay than judges in states with relatively fewer poor kids.
Latino population in the county
In counties with larger Latino populations, judges were more likely to allow unaccompanied minors seeking asylum to stay in the U.S. The horizontal axis shows the percentage of the county’s population that is Latino.
20% Latino
40
60
80
0
20
40
60
80
100% likelihood unaccompanied minor is allowed to stay
Asylum decisions can be life-or-death matters. Although immigration judges consider the requirements of asylum law, they are also influenced by nonlegal factors when making decisions.
Political influence from the executive branch combined with local environmental pressures can affect how immigration judges rule. Most importantly, these influences can lead to some children not receiving asylum when they might otherwise be entitled to it.
The Conversation is a nonprofit organization working for the public good through fact- and research-based journalism. Nearly half of our budget comes from the support of universities, and higher education budgets are under unprecedented strain. Your gift can help us keep doing our important work and reach more people. Thank you.
This article confirms two things I have said over and over:
Garland’s failure, to date, to replace the BIA with better qualified progressive judges with expertise gained by representing asylum seekers; plus
His “giveaway” of 17 critical Immigration Judge positions to those selected by “Billy the Bigot” Barr under badly flawed procedures;
will unquestionably cost some children and other refugees their lives. Immigration Judge positions are life or death — we need an Attorney General who treats them that way!
Immigration Judge appointments, particularly those at the appellate (BIA level), need to be treated by Democratic Administrations with the same care, seriousness, and strategy as Article III judicial appointments, perhaps more! Few Article III Judges, including the Supremes, affect more lives and have a bigger impact on America’s future than Immigration Judges.
The last two GOP Administrations “got” the negative power for destruction and dehumanization inherent in a “captive” court system that actively pursues misguided nativist policies and receives only sporadic supervision and attention from the Article IIIs. By contrast, the Obama Administration failed to “mine EOIR’s potential” for progressive due process advancements and building a corps of dynamic, courageous progressive judges.
So far, while perhaps exceeding the passively inept approach of the Obama Administration, the Biden Administration has also failed to achieve the radical, yet logical and obvious, reforms and decisive personnel actions necessary to undo the damage caused by the White Nationalist xenophobia of the Trump kakistocracy.
The Immigration Courts have the potential to become “model progressive courts” that could lead the way to better practices and more constitutionally and legally sound jurisprudence throughout the Federal Judiciary. Whether the Biden Administration grasps and acts boldly on that potential, or squanders it as past Democratic Administrations have done, remains to be seen.
But, that question is far from “academic.” The survival of our democratic republic is likely to depend to a great extent on whether the Biden Administration can bring in the progressive experts who finally will “get EOIR right!”
Atorney General Merrick B. Garland Official White House Photo Public Realm
The Attorney General has issued a decision in Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021).
(1)Matter of Castro‑Tum, 27 I&N Dec. 271 (A.G. 2018), is overruled in its entirety.
(2) While rulemaking proceeds and except when a court of appeals has held otherwise, immigration judges and the Board should apply the standard for administrative closure set out in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W‑Y‑U‑, 27 I&N Dec. 17 (BIA 2017).
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Sessions’s Castro-Tum abomination had to be one of the stupidest and most maliciously incompetent aspects of his White Nationalist, anti-asylum, anti-due-process agenda! Not surprisingly, that decision and the illegal attempt to convert it into a regulation have mostly been losers in the Article III Courts.
After four years of virtually unrelenting illegality, mismanagement, and outright idiocy at DHS and DOJ, that has caused “Aimless Docket Reshuffling” and generated ever-mushrooming court backlogs, finally some much-needed and long overdue teamwork and reasonability in restoring to Immigration Judges and the parties the necessary tools for rational, cooperative docket management. Presumably, the hundreds of thousands of cases “waiting in the wings” to be “re-docketed” pursuant to “Sessions’s folly” can now remain administratively closed or be “re-closed” and removed from the EOIR docket!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Along those same lines, “Sir Jeffrey” Chase reports some more good news:
More Good News!
Ms. A-B- (i.e. the respondent in Matter of A-B-) was granted asylum yesterday.The BIA granted pursuant to a joint motion from DHS and respondent’s counsel to grant asylum.
It took far too long, but justice prevailed.
Best, Jeff
That’s the type of cooperative action among the parties and EOIR that, if repeated on a larger scale, could restore functionality and some semblance of justice to our broken Immigration Courts!
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings Law
Also, many congrats to my friend Karen Musalo and her team at the Center for Gender and Refugee Studies at Hastings Law for their outstanding, persistent, and ultimately successful defense of Ms. A-B- against Sessions’s misogynistic “war on asylum seekers of color.”
It’s a telling commentary that finally getting the law back to where it was in 2016,“pre-Sessions,” now seems like a major victory! Just think of what might have been accomplished if all the effort expended on combatting the Trump immigration kakistocracy’s illegality, nonsense, and wasteful gimmicks had instead been devoted to advancing and promoting due process and fundamental fairness for all persons in America!
Thomas Cizauskas Crimes against humanity Creative Commons License — The Biden Administration promised to stop these crimes committed by our Government, but hasn’t.
Those were the words I heard from an immigration officer not long after I entered the United States near El Paso, Texas in May 2018. I thought I had just reached safety with Angie, my 7-year-old daughter. I was wrong.
Once we arrived at the border, immigration officers processed me and my daughter at a detention facility, and led us to a crowded cell packed with 50 to 60 other families. It smelled terrible—like urine—and everything was gray. We were so cold. They didn’t even offer us one of the cellophane blankets you see on TV. I had to take my shirt off to wrap it around Angie and keep her warm. I was shivering.
The journey to this point had been excruciatingly painful. Fearing for our lives, we had to make the decision to flee. I had a good life in Honduras. I was a businessman and I owned my own home. I knew it would be hard to leave everything I worked so hard to build behind. Starting a new life in a new country with a different culture wouldn’t be easy. But desperate circumstances called for desperate measures. Hope of reaching a safe place for my family kept me going.
At the detention center, many fathers began hearing rumors that immigration officials were going to take our children away from us. Take them where? Take my daughter? To another cell? A new facility? On the inside I was panicking, but I knew I needed to show strength for my daughter. I needed to be brave and prepare her if the rumors were true. You will contact your grandparents in Ohio, I told Angie.
In the cell, we practiced memorizing their phone numbers, repeating them over and over. To be extra safe, I then wrote the numbers with a ball-point pen on my daughter’s arm, her belly, her foot and on the inside of her jeans hoping she’d have the chance to make a phone call before immigration officials washed off the ink.
Then my nightmare happened. They came to take our children. I witnessed pain, agonizing cries and a deep sense of helplessness. Some of the immigration officers joked as they handcuffed the parents. Others expressed a cruelty I never would have expected. Rather than trying to ease our pain, they were somehow enjoying their power. As if they believed their actions were the right thing to do. I don’t know how anyone believes separating a child from a parent is right.
. . . .
While being transferred to a detention facility for children, an immigration officer sexually abused her. When she fought back, the officer threatened her, saying if she told anyone she would never see her parents again. Then Angie witnessed the same officer sexually abuse two girls who were even younger than her. Angie stayed quiet about the experience even months after we were reunited.
We were reunited after several weeks, though the separation felt eternal. The Angie the U.S. government returned to me is not the same girl they took out of my arms in that detention center. She cannot forget what happened to her. And she wants me to share what happened to her because she is worried the officer who abused her is still an immigration official. We do not know the officer’s name—let alone whether the officer is still working in government.
“What if that officer is still hurting other kids?” Angie asked me.
As a father I want to tell Angie not to worry. That is why I am asking President Joe Biden to act. Reuniting families and making sure they have immigration status in the U.S. is critical—but it is not enough. The government can make a huge difference in the lives of thousands of asylum seekers who are being turned away at the border right now. All asylum seekers should be allowed to seek protection and refuge in the U.S. without fear.
The government must also investigate every allegation of sexual abuse and mistreatment by immigration officers. Those officers must immediately be identified and removed from their positions so they cannot hurt anyone else. President Biden, the Department of Homeland Security and the Department of Justice together have the ability to ensure that families like mine can begin to heal.
It is hell to leave your home and risk everything so your child can be safe. It shouldn’t be hell once you have reached what you thought would be a safe haven.
After entering the United States to seek safety, Daniel Paz and his daughter were separated for several weeks. Paz and his family were reunited in 2018 and have since won asylum. He is a committed advocate for other families who have faced similar trauma.
The views expressed in this article are the writer’s own.
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Who would have thought that nearly six months into the Biden Administration our Government would still be abusing asylum seekers and ignoring the Constitution, mocking the rule of law, and degrading humanity?
So, how is it that Garland, Monaco, Gupta, and Clarke intend to combat racism and unequal justice in America when they have failed to re-establish the rule of law for asylum seekers at the border and continue to run an unjust and grossly mismanaged “court system” @ EOIR filled with too many “Miller Lite” judges?
Tell the Biden Administration and Judge Garland that we need progressive reforms, now! EOIR would be a great starting place!
Gen. Garland continues to use “Miller Lite Mercenaries” against migrants. “The U.S. constitution states that our judicial system is a ‘separate but equal part’ to our democracy. But immigration courts have nothing to do with that.” — Tea Ivanovic, Immigrant Food Albrecht Dürer, Public domain, via Wikimedia CommonsDan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Dan Kowalski reports for LexisNexis Immigration Community:
“[T]he BIA has not addressed the question of the applicability of the color-of-law rule regarding state involvement in torture. … The parties agree that a remand is the best alternative where the BIA has made an unauthorized or inadequately supported factual finding on the likelihood of torture, thereby leaving unresolved whether the IJ failed to apply the rule-of-law theory of state involvement in torture. Accordingly, we conclude that the prudent course is to remand the case to the BIA. … We further order the BIA to remand the case to the IJ for a clear factual finding on the likelihood of torture and for the IJ’s clarification, if necessary, on the question of state involvement in light of the color-of-law rule. … PETITION GRANTED; VACATED AND REMANDED WITH INSTRUCTIONS TO REMAND.”
Congrats to Matthew Nickson! Getting justice for a migrant in the notoriously pro-Government 5th Cir. is no mean feat! Think of how much easier your job would be if AG Garland hired some “real judges” at EOIR — experts in immigration and human rights who have represented individuals in Immigration Court and who are committed to due process and fundamental fairness above all else!
When you’re out to stick it to Hondurans (actually all Northern Triangle migrants), regardless of facts or law, to please your sleazy White Nationalist political bosses in the Trump regime, bad things are going to happen.
Let’s not forget that the Trump regime entered into a totally corrupt and bogus “Safe Third Country” agreement with Honduras, probably one of the least safe countries in the Hemisphere with no functional asylum system at all. Given this level of overt political fraud by the “bosses,” I doubt that the regime would have appreciated BIA bureaucrats correctly finding that torture with government acquiescence is likely in Honduras.
Sure, these failures were before Garland took over. But, he has made little effort to date to either acknowledge and root out the deep corruption and anti-immigrant weaponization of the Immigration Courts or to address the inadequate “go along to get along judging” that was encouraged at EOIR. In plain terms, respondents did not get, and still do not get, qualified, fair, and impartial judges at EOIR to adjudicate their claims.
You have only to look at the comedy of errors and ineptitude at EOIR in this case “outed” by one of the most pro-Government Circuits in America to see the proof! That’s unconstitutional!
Remand after remand to “get it right” also “jacks backlog.” Just getting a case back on an Immigration Judge’s docket takes time and effort in a non-automated system with no e-filing and traditionally overwhelmed and demoralized staff. Instead of fixing “customer service” @ EOIR, the Trump kakistocracy invested in ludicrous, due-process-destroying “IJ Dashboards” to keep the quotas filled and the unconstitutional “nativist deportation railroad” moving. Yet, Garland, Monaco, Gupta, and Clarke pretend that none of these constitutional and civil rights absurdities, not to mention grotesque management fraud, waste, and abuse, happened!
Don’t stand for any of Garland’s dishonest “expedited dockets” which implicitly blame those seeking justice under law and their courageous lawyers for the ungodly mess he and his lieutenants inherited but have failed to address! And, “dedicated docket for asylum seekers” is just a euphemism for more backlog-building, due-process denying “Aimless Docket Reshuffling” and continuing mismanagement by Garland.
I’ll bet that qualified experts could cut the largely self-inflicted backlog by at least 50% in 90 days without stomping on anyone’s due process rights merely by administratively closing or terminating without prejudice hundreds of thousands of non-priority aged cases. Many of those could better be handled at USCIS.
It shouldn’t be this difficult to get an Administration that ran and got elected on a “reform” and “return to good government” platform to do the right thing here. But, it is! EOIR needs reform, including a new BIA and competent, expert judges who know asylum law, respect due process, and will treat migrants and their attorneys fairly, respectfully, and humanely. It’s not a “big ask!” So why is it “above Garland’s pay grade?”
President Joe Biden has taken some steps toward reversing his predecessor’s legacy of broad, indiscriminate immigration enforcement, including a recent announcement that it will no longer detain immigrants at two locations under scrutiny for alleged abuses.
But Republicans are adamant that increased immigration enforcement be a prerequisite to any broader immigration reform.
“There’ll be no immigration reform until you get control of the border,” Sen. Lindsey Graham (R-SC) told Roll Call last month.
There are now nearly 40 percent more people in immigration detention compared to when Biden first took office, and his administration is continuing to turn away most migrants arriving on the border under pandemic-related restrictions put in place by his predecessor, President Donald Trump, which have led to the expulsions of more than 350,000 people this year alone.
But research shows that the threat of detention and deportation in the US doesn’t dissuade migrants from making the journey to the southern border, especially if they are victims of violence and may be seeking to escape the “devil they know” in their home countries.
“Managing migration at the border, particularly the kind of migration we’re seeing now, from a strictly deterrence, enforcement lens is just not sustainable in the long run and is not having the impact that people think it should have,” Theresa Cardinal Brown, managing director of immigration and cross-border policy at the Bipartisan Policy Center, said. “That’s why we need to rethink our paradigm for how we talk about migration and everything that we do at the border.”
. . . .
Knowledge of US immigration detention, however, did have an unintended effect on survey takers in Ryo’s experiment — it made them more likely to think outcomes and legal procedures in the American immigration system are unfair. That is worrisome, given that perceptions of fairness are significant predictors of people’s willingness to obey the law and cooperate with legal authorities, Ryo said.
“We really ought to be concerned about the extent to which generating these kinds of perceptions of unfairness can backfire in terms of more people disregarding our laws and undertaking that dangerous journey in order to get to our border and try to cross it,” she added.
. . . .
************************
First, let me congratulate Nicole on her spectacularly high level reporting and mastery of the English language: Clear, accessible, well-organized, informative, persuasive.Compare Nicole’s prose with the vapid, often misleading nonsense and gibberish spouted by legislators, government officials, bureaucrats, and right wing White Nationalist shills of all types. Just yesterday, Trump and his pathetic “wannabe” Greg Abbott were down at the border spouting their unadulterated, fact-free, racist blather and restrictionist nonsense (when Trump wasn’t rambling on incoherently about the “Big Lie” or himself). I encourage everyone to read Nicole’s full article at the link!
“Enforcement only doesn’t work” has been one of the key “themes” of Courtside since “Day 1.” The answer has also been clear — due process, fundamental fairness, racial equity, practical scholarship leading to durable solutions.
The converse of “enforcement only doesn’t work” is also true: A more realistic, more generous legal immigration system that advances due process and equality while taking advantage of “market factors” that attract and drive migration would also lead to more efficient and effective enforcement. Many, perhaps the majority, of those we are now wasting time and money on cruel and ultimately futile attempts to detain, deter, and remove would actually be a huge benefit to our nation if they were allowed to migrate legally on either a permanent or temporary basis.
I’ve been saying for a long time now that convincing folks that our legal system is basically bogus — falsely promising a fairness and dignified treatment we aren’t delivering — merely serves to drive migrants to enter the “extralegal” or “black market” system that helps support our economy. The real “beneficiaries” of “mindless immigration enforcement” and a dysfunctional legal system are smugglers, cartels, and exploitative employers. Also, obviously, corrupt GOP politicos benefit from having a permanent, disenfranchised, traumatized, largely non-White “black market labor pool” to prop up their economy while serving as an easy target to “whip up” their racist base.
Bad policies, driven by ignorance, myths, bias, cowardice, and racism will continue to produce lousy results — for the migrants and for our nation. Smarter, more courageous, more intellectually honest legislators and public officials are necessary. Whether voters will be wise enough to elect them remains to be seen.
Rudy Giuliani has been suspended from practicing law in the state of New York.
Giuliani, a former New York City mayor and the former head prosecutor for the federal Southern District of New York, was suspended for making “false and misleading statements” about the election loss of his client, former President Donald Trump.
In a ruling sought by the Attorney Grievance Committee of the First Judicial Department (a mid-level appellate court in the state), a five judge panel implemented an interim suspension of Giuliani’s law license, pending further AGC proceedings.
The ruling, issued Thursday, takes effect immediately.
“There is uncontroverted evidence that respondent communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020,” the court wrote in its decision.
“These false statements were made to improperly bolster respondent’s narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client. We conclude that respondent’s conduct immediately threatens the public interest and warrants interim suspension from the practice of law.”
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Read the full report at the link.
Could get here be just a little justice in the world after all? On the other hand, why are Jeff “Gonzo Apolcalypto” Sessions and “Billy the Bigot” Barr and a bunch of other corrupt Trump officials still walking free and practicing? A few might even be hanging around in USG jobs!
