"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.
(CNN)The Biden administration, unable to return an increasing number of Venezuelans arrested at the US-Mexico border to their home country, is now sending those migrants to Colombia if they previously resided there, according to two Homeland Security officials.
White House officials have grown increasingly concerned about the large numbers of single adults continuing to cross the US southern border, particularly from countries that Mexico won’t accept under a controversial Trump-era policy, two sources familiar with discussions said.
The flights of Venezuelans to Colombia, which have not been previously reported, marks another effort by the administration to try to stem the flow of migrants, pushing those who arrive further away from the US-Mexico border including those seeking asylum.
In December, US Customs and Border Protection encountered more than 13,000 single adults from Venezuela on the US southern border, compared with 96 in December 2020, according to agency data.
A humanitarian crisis and political instability have taken hold of Venezuela in recent years. Around 6 million people have fled the country, according to the United Nations, usually fleeing to other parts of Latin America which have also struggled during the pandemic.
There’s been bipartisan acknowledgment of the deteriorating situation in Venezuela. Last year, Sens. Marco Rubio, a Republican, and Bob Menendez, a Democrat, introduced a Senate resolution expressing alarm over the situation in the country.
Colombia also granted temporary legal status to Venezuelans who had fled there, allowing them to legally work in the country. But for those who opted to journey to the US-Mexico border to seek protections in the US, expulsion to Colombia now puts them thousands of miles away from the possibility of claiming asylum in the US.
The handling of the US-Mexico border has dogged the Biden administration since the early days of Joe Biden’s presidency as a growing number of migrants journey to the United States, fleeing deteriorating conditions in the western hemisphere. Republicans have recently seized on the releases of migrants — some of whom can’t be expelled because of their nationality — citing it as another example of what they describe as the administration’s poor management of the border.
Under a public health authority, known as Title 42, authorities can swiftly remove migrants encountered at the US southern border, effectively barring those seeking asylum from doing so and marking an unprecedented departure from previous protocol. The authority was invoked at the onset of the coronavirus pandemic, despite suspicions among officials that it was politically motivated.
The White House has repeatedly referred to the Centers for Disease Control and Prevention on the future of the policy, saying the agency deems it necessary given the Delta and Omicron variants.
Last Thursday, the Department of Homeland Security returned two Venezuelan nationals to Colombia, where they had previously resided, the department told CNN, adding that flights to Colombia are expected to take place “on a regular basis.”
“As part of the United States COVID-19 mitigation efforts, DHS continues to enforce CDC’s Title 42 public health authority with all individuals encountered at the Southwest border. However, DHS’s ability to expel individuals may be limited for several reasons, including Mexico’s ability and capacity to receive individuals of certain nationalities,” DHS said in a statement, adding that the department has removed migrants to third countries in the region where they had lived or had status.
DHS has also acknowledged the precarious situation in Venezuela by granting a form of humanitarian relief for Venezuelans already in the United States.
Still, the Biden administration has continued to rely on the public health authority and recently defended it in court — a move that received criticism from immigrant advocates and Democratic lawmakers. The latest decision to expel migrants from Venezuela — a country in crisis — to Colombia reveals a further dependence on the public health authority amid a growing number of Venezuelans arriving at the US-Mexico border.
In December, US Customs and Border Protection encountered 24,819 Venezuelans at the US southern border including single adults, families and minors, up from the previous month and continuing an increasing trend. As a point of comparison, in December 2020, CBP encountered only around 200 Venezuelan migrants, according to agency data.
While tens of thousands of migrants have been turned away at the US-Mexico border, some, like South Americans, aren’t accepted by Mexico and therefore those nationals largely can’t be expelled. Under the public health authority, DHS has removed migrants to Guatemala, Honduras, El Salvador and Brazil.
Some migrants from Venezuela crossed the border in Yuma, Arizona — often flying to an airport in Mexico and then crossing at a gap along the Colorado River, cutting the journey down to just days. It’s the most viable option for many Venezuelans and Brazilians, for example, who can’t obtain a visa that allows them to work in the US — or can’t afford the years-long wait for the legal immigration process. Mexico recently put new visa restrictions in place for Venezuelans traveling to Mexico.
The US has previously taken measures to try to lower the number of migrants at the US-Mexico border. Last year, the administration started flying migrants apprehended at the southern border and subject to the Trump-era border policy linked to the pandemic to the interior of Mexico.
Forced migration is real, no matter what fictions and myths Administrations of both parties use to deny it.
Pretending otherwise, and that lawless deportations and “deterrence” will materially change the forces that drive it, is both immoral and ultimately futile.
The first three lessons learned from the BIA’s recent decision in Matter of Laparra1 are: (1) the Board knows only one tune; (2) that tune is the “Falls Church Two-Step,” and (3) the tune does not improve with repeated listening.
As background, Congress in 1996 passed a statute creating a document called a Notice to Appear, or “NTA” for short, which is used to commence removal proceedings before the Immigration Court. Congress defined an NTA to require that it include the time and place of the first hearing; the document is, after all, called a “notice to appear.”
However, for many years, the Department of Homeland Security cut a corner by leaving that crucial information out of hundreds of thousands of NTAs. The courts (which are not part of DHS, the entity issuing the NTA) would later send a different document telling the person when and where to appear. That second document might be sent weeks, months, or even years later.
As an aside, in other areas of immigration law, EOIR has applied a literal approach to interpreting statutory terms. An unfortunate example is found in the asylum context, where the BIA felt a strong need to add “particularity” and “social distinction” requirements for particular social group recognition, creating significant obstacles for asylum seekers. Yet the government’s defense of those terms has been based on the argument that every word in the term “particular social group” must be accorded a very literal meaning.
However, when it comes to the term “Notice to Appear,” the Board inexplicably doesn’t seem to think meaning should matter. According to the online version of the Cambridge English Dictionary, “notice” is defined as “(a board, piece of paper, etc. containing) information or instructions.” A “Notice to Appear” would therefore be a piece of paper containing information or instructions about when and where to appear. However, that is exactly the information or instructions that DHS saw fit to leave out of this particular document. The BIA nevertheless long stood firm in its conviction that a document which provides as much information or instruction about an upcoming hearing as a take-out menu from L&B Spumoni Gardens meets the legal definition of a “Notice to Appear.”
Not surprisingly, this government shortcut was successfully challenged by noncitizens wishing to seek a path to legal status in this country called cancellation of removal. One can’t apply for cancellation of removal unless they’ve been present in the U.S. for ten years,2 but once one is served with a Notice to Appear, the accrual of time towards that ten years stops.3 So whether or not what ICE was handing out met the definition of an NTA would determine whether hundreds of thousands of people would be eligible to apply for legal status. In a case called Pereira v. Sessions,4 the Supreme Court resoundingly held that an NTA without the time and place of hearing was not an NTA, and therefore did not stop the noncitizen from accruing time to reach the 10 years of presence necessary to apply for cancellation of removal.
The BIA’s response was to issue a precedent decision, Matter of Mendoza-Hernandez,5 in which it held that in spite of the Supreme Court’s clear view to the contrary, the combination of the non-NTA and a later-sent document that is also not an NTA containing the missing information together form a valid NTA, which stops the noncitizen from continuing to accrue time towards the ten years.
The matter again reached the Supreme Court, where, at oral argument, Justice Gorsuch referred to the case as “Pereira groundhog day,” and actually asked counsel for the government why it was pursuing the case in light of the Court’s 8-1 decision in Pereira.6 In its 2021 decision in that case, Niz-Chavez v. Garland,7 the Court held that an NTA must be a single document containing all of the required information, and that the two-step method endorsed by the Board does not constitute one valid NTA, and thus will not stop the accrual of time.
Although Pereira and Niz-Chavez involved what is known as the “stop-time rule” described above, the question of proper service of an NTA also arises in other contexts. For those who missed their initial removal hearing and were ordered removed as a result, the Supreme Court decisions seemed to offer a new opportunity.
The reason is because the statute provides for in absentia removal orders only where the noncitizen failed to appear for their hearing “after written notice required under paragraph (1) or (2) of section 1229(a) of this title has been provided” to the noncitizen or their lawyer.8 Section 1229(a) is the section of the law that lists the requirements for an NTA to actually be an NTA; it was the specific section interpreted by the Supreme Court in Pereira and Niz-Chavez. Pursuant to those decisions, no one who was issued an NTA lacking a time and place of hearing received proper notice under section 1229(a) of the Act, which specifically requires that the time and place information be provided in a single document. Where notice was not proper, the law allows the filing of a motion to rescind an in absentia order, and further permits the motion to be filed at any time.9
The U.S. Court of Appeals for the Fifth Circuit addressed this issue of proper notice in a published decision issued in September, Rodriguez v. Garland.10 The decision cited the Supreme Court’s holding in Niz-Chavez, and determined that a single document containing all of the required information (including the time and place) is required in the in absentia context as well. The Fifth Circuit made clear that where the NTA did not contain the time and place, it could not be cured by the mailing of a subsequent notice for in absentia purposes.
Anyone unable to guess the BIA’s response has not been paying attention. The BIA issued Matter of Laparra in order to say that the recipient of an in absentia removal order did in fact receive proper notice pursuant to section 1229(a) even if their NTA lacked a time and place of hearing, as long as the court subsequently sent an entirely different paper days, months, or years later containing the missing information.
How did the BIA believe it could reach this same conclusion yet again in spite of the Supreme Court decisions to the contrary? Please try to follow along as we review the Board’s explanation.
First, the Board emphasized that the statute governing in absentia orders (8 U.S.C. § 1229a(c)(5)(A)) states that such order may be entered “after written notice required under paragraph (1) or (2) of section 239(a) has been provided.” The Board emphasized the words “written notice,” which it distinguished from “a written notice,” which the Supreme Court interpreted to indicate a single document.11 The Board’s position seems to be seriously undermined by the fact that “written notice under paragraphs (1) or (2) of section 239(a)” is subsequently referred to twice more in the same section of the law as “the written notice.”
The Board employed a novel approach here. It dropped a footnote in which it admitted to the two subsequent mentions of “the written notice.” But the Board then said that it reads those two subsequent uses of “the” as simply referring back to the initial “written notice” (without the definite article).12 And apparently, because they are referring to the first mention of “written notice,” the definite article “the” can just be ignored in those other two usages. Why is that? To explain, the Board cited a Supreme Court decision in a non-immigration case decided in 2015, Yates v. U.S.13
Yates involved a fisherman apprehended at sea with a catch containing a large number of undersized fish. However, by the time the ship reached shore, only fish of legal size remained on board. After a long delay, Yates was charged and convicted under 18 U.S.C. § 1519, prohibiting tampering with a “tangible object” in order to impede a federal investigation.
Fish would meet the dictionary definition of “tangible objects.” However, in a decision authored by the late Justice Ruth Bader Ginsburg, the Supreme Court employed a canon of statutory interpretation called noscitur a sociis, under which aid in determining a term’s meaning can derive from the meaning of surrounding terms used in the same section of law.14 As the term “tangible object” in 18 U.S.C. § 1519 is preceded by “makes a false entry in any record, document…,” the Court determined that “tangible object” was meant to refer to items containing records or documents. So tampering with an external hard drive would be covered by the statute; tampering with a fish would not.
This approach has been employed by the BIA (using the closely-related concept of ejusdem generis) in its 1985 decision in Matter of Acosta15 to determine that the term “particular social group” should be defined by an immutable characteristic, the same common denominator found in the surrounding terms of race, religion, nationality, and political opinion. It bears noting that what the Board did in Laparra bears no similarity to the manner in which the canon was applied in either the Board’s earlier usage in Acosta or by the Supreme Court in Yates. In Laparra, there was no comparison to the meaning of surrounding terms; instead, the Board seemed to make a random decision to ignore two usages of the definite article. The only similarity I can see to Yates is that what the Board did seems fishy.
However, even if we do as the Board would like and look only at the first usage of “written notice” contained in section 1229(a)(1), there is still a fatal flaw in the remainder of the Board’s argument. As noted above, the statute in that first usage requires not just any written notice, but specifically, written notice under paragraph (1) or (2) of section 1229(a), i.e., the section titled “Notice to appear.” Paragraph (1) of that section begins: “In removal proceedings under section 1229a of this title, written notice (in this section referred to as a “notice to appear”)…” A notice to appear! Paragraph (1) thus clearly refers to a single document, which as the Supreme Court has now told us twice, must contain the time and place of hearing.
Paragraph (2) of that same section says that “in the case of any change or postponement in the time and place of such proceedings,” then a written notice shall be provided specifying the new time and place of the proceeding, and the consequences of a failure to appear.
The meaning of paragraph (2) was by no means a matter of first impression for the Board to interpret in Laparra as it saw fit. In its decision in Pereira, the Supreme Court said:
If anything, paragraph (2) of § 1229(a) actually bolsters the Court’s interpretation of the statute. Paragraph (2) provides that, “in the case of any change or postponement in the time and place of [removal] proceedings,” the Government shall give the noncitizen “written notice . . . specifying . . . the new time or place of the proceedings.” § 1229(a)(2)(A)(i). By allowing for a “change or postponement” of the proceedings to a “new time or place,” paragraph (2) presumes that the Government has already served a “notice to appear under section 1229(a)” that specified a time and place as required by § 1229(a)(1)(G)(i). Otherwise, there would be no time or place to “change or postpon[e].”16
We know that the BIA is well aware of this; the above language from Pereira was specifically quoted in the six-judge dissenting opinion in Matter of Mendoza-Hernandez, under the heading “Plain Language.”17
Also, in its later decision in Niz-Chavez, the Court stated that “the government could have responded to Pereira by issuing notices to appear with all the information §1229(a)(1) requires—and then amending the time or place information if circumstances required it. After all, in the very next statutory subsection, §1229(a)(2), Congress expressly contemplated that possibility.”18
Thus, the Supreme Court left no doubt in its two decisions that paragraph (2) involves a change in the time and place of hearing that was previously included in the NTA, as the statute requires. Paragraph (2) in no way, shape, or form allows ICE to serve the noncitizen with the L&B Spumoni Gardens menu and then have the immigration court send a second paper that provides a time and place for the first time.
Somehow, the Board chose to ignore this clear and obvious reading twice affirmed by the highest court in the land. Instead, it focused on only one word – the “or” in “paragraph (1) or (2) of section 1229(a).”19 The Board then pretended (can we find a more appropriate word than this?) not only that the “or” somehow allowed paragraph (2) to be read as if paragraph (1) didn’t exist, but also as if the words “any change or postponement in the time and place of such proceedings” could somehow be read as “change or postponement? What a poor choice of words! What we really meant to say was, ‘the absolutely very first time and place ever set.’ Wasn’t that obvious? We feel so foolish. Please just interpret this any way you see fit.”
The Board did acknowledge the Fifth Circuit’s contrary view in Rodriguez, but attributed it to that court’s failure to focus on the “paragraph (1) or (2)” language.20 Apparently, in the Board’s view, had the Fifth Circuit also focused on that word “or,” it would have reached the same twisted conclusion as the Board. Perhaps realizing how unrealistic this might seem, the Board quickly pointed out that “[i]n any event, Rodriguez does not apply here because this case arises in the First Circuit.”21
Speaking of other circuits, it bears noting that the U.S. Court of Appeals for the Third Circuit recently stated for the second time in a published decision that the BIA’s analysis was “more akin to the argument of an advocate than the impartial analysis of a quasi-judicial agency.”21 I believe that the same can be said of the Board’s decision in Laparra. It will be interesting to see if this issue reaches the Supreme Court for a third time. If so, one should wonder why the Board might expect a different result.
Notes:
28 I&N Dec. 425 (BIA Jan. 18, 2022).
8 U.S.C. § 1229b(b)(1)(A).
8 U.S.C. § 1229b(d)(1), often referred to as the “stop-time rule.”
To be clear, the government is capable of providing all required information in a single NTA. EOIR had provided DHS access to schedule Master Calendar hearings through the agency’s Interactive Scheduling System (ISS), which was employed between those agencies until May 2014. And in a memo issued shortly after the Supreme Court’s Pereira decision, then EOIR Director James McHenry stated that EOIR had begun providing hearing dates to DHS in detailed cases, and was working to again provide it access to ISS for scheduling non-detained cases.
Matter of Laparra, supra at 430.
Id. at 436: “The court reasoned that section 240(b)(5)(C)(ii) requires ‘notice’ under ‘section 239(a),’ which Niz-Chavez held must be a single document in the form of a notice to appear. However, the court based this reasoning on a recitation of section 240(b)(5)(C)(ii) that omitted the disjunctive phrase ‘paragraph (1) or (2)’ from the statute and relied solely on a reference to ‘section 239(a).’”
Id.
Nsimba v. Att’y Gen. of U.S., No. 20-3565, ___ F.4th ___ (3d Cir. Dec. 22, 2021) (slip. op. at 10).
Copyright 2022 Jeffrey S. Chase. All rights reserved.
Republished by permission.
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As Jeffrey points out, the legal and practical problems with notice at EOIR and DHS are chronic, well-documented, and consequential! Yet, given a golden opportunity to make a new start while complying with due process and establishing “best practices” Garland has miserably failed!
Instead of appointing a BIA consisting of “practical scholar expert judges” and competent, professional judicial administrators to clean up this awful mess it’s “same old, same old” under Garland’s poor leadership. Indeed, not only has Garland chosen to retain the very folks who created and aggravated the notice problems, he has actually made it worse! How many times do I have to say it: EOIR is supposed to be a “court of law,” not a highly bureaucratic, “headquarters bloated,” “agency” modeled on and “operating” (a term I use lightly with EOIR) like the very worst aspects of the “Legacy INS.” For Pete’s sake, even DHS has done a somewhat better job of automating files than EOIR!
Tal Kopan Washington Reporter, SF Chronicle. She exposes Garland’s mismanagement of EOIR!
At best, these bogus orders require burdensome motions to reopen, rescheduling, and “restarts” that unnecessarily build backlog. They also generate more bogus statistics and false narratives, more endemic problems at EOIR that Garland has ignored or aggravated.
At worst, improper in absentia orders generate improper arrests, detention, and illegal removals of individuals who were clueless about their actual hearing dates!
Having “supervisors and managers” supposedly in charge of operating a fair hearing system engineer and then “cheer” the absence of any hearings at all shows the depths to which EOIR has plunged under Garland’s poor leadership. But, perhaps that shouldn’t surprise us! It comes from an AG who has failed after nearly a year to re-establish a fair hearing system for asylum applicants at the border and who mounts ethically-challenged defenses of Stephen Miller’s complete eradication of asylum at the border based on a bogus, pretextual rationale rejected by almost all migration and public health experts! Why is this acceptable performance from an alleged Democratic Administration?
Judge Merrick B. Garland, U.S. Attorney General Official White House Photo Public Realm. Appointed by a Democrat, he runs the DOJ largely with Trump holdovers, no accountability, and as if Stephen Miller were still looking over his shoulder. The result corrodes the “retail level” of justice in our Immigration Courts and threatens to de-stabilize our entire legal system!
No wonder Garland is building the already incredible 1.6 million case EOIR backlog at a ”new record” pace!
The speculation on Biden’s Supreme Court pick is “sucking all the air out of the room.” But, Garland’s disgraceful failure to counter the Trump AGs’ “packing” of the BIA with unsuitable judges and filling EOIR “senior management” with unqualified individuals who lack the requisite expertise and consistently tilt in favor of DHS Enforcement and against Due Process, fundamental fairness, immigrants’ rights, and best practices will have more immediate corrosive effects on racial justice in America and individual human lives than any court in America outside the Supremes!
And, unlike the Supremes, Garland “owns” all the picks for the “Supreme Court of Immigration!” Rather than standing up for progressive reforms, and giving new progressive judicial talent a chance to shine, he has chosen to enable and empower regressive forces and to frustrate progressive experts, further undermine the rule of law, and thwart best practices!
But, even these somewhat “understated” critics of Garland don’t fully grasp the catastrophic consequences for our entire justice system and our democracy of Garland’s unwillingness and/or inability to prioritize the creation of a progressive due-process/equal-justice-oriented judiciary of experts to replace his regressive, oppressive, deadly, and beyond dysfunctional immigration judiciary at DOJ!
As Jeffrey cogently relates, “same old, same old” failed approaches by “holdover judges” doesn’t “cut it!” Sessions and Barr recognized the cosmic importance of the immigration judiciary and the imperative to “weaponize it for evil” and to use their limited time in office to maximize and further a White Nationalist agenda developed and promoted by Stephen Miller. It’s a pity that Garland has failed to act on the legal and moral imperatives to “mine and realize EOIR’s ‘counter-potential’ for good!”
That potential was memorialized in the long-forgotten “EOIR vision of yore:” “Through teamwork and innovation, be the world’s best administrative tribunals guaranteeing fairness and due process for all!” Remarkably, that “noble due process vision” was once displayed in bold letters on EOIR’s internal website. Now, folks like Garland are too embarrassed and spineless to even admit that such a goal ever existed.
Funny how right-leaning supposed “textualists” and “strict constructionists” have difficulty following clear statutory commands when the result might favor the individual while holding the Government accountable for intentionally violating the law. Also, strange how an Administration that got into office in no small measure by promoting its competence and strong commitment to humane values and equal justice for all, particularly racial justice, continues to fail on all counts! Go figure!
Not all of the white men who served on the court were paragons of morality. Not all of them went to college, let alone law school. But they each had the golden ticket: low melanin and high testosterone.
So now, it is fascinating to watch as people work themselves into conniptions about Joe Biden committing to choosing a Supreme Court nominee from a group that has long been overlooked: Black women.
. . . .
I say, look at it another way.
Of the 115 justices who have served on the bench since 1789, 108 — roughly 94 percent — have been white men. Zero percent have been Black women.
Viewed this way, through the long sweep of American history, the United States has some work to do.
There is no legitimate or logical argument against inclusion. Consciously including racial groups can be one of the most effective reparative remedies for centuries of racial exclusion.
Only when we disentangle the concepts of whiteness and maleness from the concept of power can we see the damage the association has done. Only then can we truly accept and celebrate the power of inclusion, diversity and equity. Only then can representative democracy in a pluralistic society begin to live up to its ideals.
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Read the full article at the link.
Black women historically have made outsized, grossly under-appreciated contributions to America.
I also note that the overall qualifications of Biden’s list of potential nominees exceed those of the Trump McConnell nominees. The latter’s qualifications were largely limited to proven subservience to right wing judicial activism (particularly elimination of a woman’s right to choose and civil rights for individuals of color), indifference to human suffering, compassion, and practicality, combined with support from out of the mainstream, right wing legal organizations like the Federalist Society and the Heritage Foundation. Being White and Christian also didn’t appear to hurt their chances.
The idea that Brett Kavanaugh and Amy Coney Barrett were the two “best qualified lawyers in America” to serve on the High Court is preposterous!
Dr. Demetrios G. Papademetriou, president emeritus and co-founder of Migration Policy Institute, and founding president of MPI Europe, died Wednesday, January 26, at the age of 75. He was one of the world’s pre-eminent scholars and lecturers on international migration, with a rich body of scholarship shared in more than 275 books, research reports, articles and other publications. He also advised numerous governments, international organizations, civil society groups and grant-making organizations around the world on immigration and immigrant integration issues.
Papademetriou began his career as Executive Editor of the International Migration Review. After stints at Population Associates International and the U.S. Labor Department, he served as Chair of the Migration Group of the Organization for Economic Cooperation and Development. He then joined the Carnegie Endowment for International Peace’s International Migration Policy Program, which in 2001 was spun off to create the freestanding Migration Policy Institute.
He co-founded Metropolis: An International Forum for Research and Policy on Migration and Cities, which he led as International Chair for the initiative’s first five years and then served as International Chair Emeritus. He was Chair of the World Economic Forum’s Global Agenda Council on Migration (2009-11) and founding Chair of the Advisory Board of the Open Society Foundations’ International Migration Initiative (2010-15).
Papademetriou, who traveled the world lecturing and speaking at public conferences and private roundtables, also taught at the University of Maryland, Duke University, American University and the New School for Social Research.
MHC
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Demetrios was one of those amazing, charismatic, “larger than life” intellects who could “electrify” a room just by walking through the door. His ability to “connect” with audiences far beyond the world of scholarly research — and to appreciate the “human lives and heroic stories beyond the number-crunching” was unparalleled.
He led in “putting immigration scholarship on the map” — as an academic discipline, a ground-breaker in clinical legal education, and a basis for progressive migration and human rights policies in government and NGOs. Through his work at MPI, Carnegie, and other institutions, he used scholarship to spur and encourage practical “grass roots” reforms in our immigration system and, indeed, in the international migration system. Many leaders of today’s “New Due Process Army” can trace their “practical scholarly roots” to Demetrios’s inspiration and example!
Perhaps ironically, another recent posting on ImmigrationProf Blog points out how the Biden Administration has disturbingly and inexcusably failed to “cash in” on the full potential of the extraordinary growth in “applied migration scholarship” fueled by Demetrios, his long time friend and colleague former Immigration Commissioner Doris Meissner, MPI Executive Director Donald Kerwin, Jr., and other giants in the field.
Rather, the Biden Administration has veered far off-track on immigration, human rights, and social justice issues by placing politicos without immigration expertise and lacking both moral courage and belief in fundamental human values in charge of its flailing and failing immigration mess. In particular, these tone-deaf politicos have failed to “connect the dots” between immigrant justice and racial justice in America.
Not surprisingly, that has resulted in across the board failures, unfulfilled promises, and angry, disgruntled potential allies on meaningful reforms in both areas. This, in turn, has demoralized and turned off the younger, dynamic, diverse, progressive, expert immigration, human rights, and social justice leaders who are key to the future of the Democratic Party and the preservation of American democracy.
Talk about a lose-lose-lose approach! And, I guarantee that it hasn’t garnered one vote of support from “hard-liners” and “naysayers” who continue to mindlessly and dishonestly babble about “open borders!”
I’m not exaggerating here. Yesterday, I was on (Zoom) panels in Houston and DC. Both audiences and fellow panelists were stunned and outraged by the betrayal of due process, good government, expertise, common sense, and human values demonstrated by Biden’s “Miller Lite” approach to asylum at the Southern Border, the intentional mistreatment of migrants of color, and Garland’s beyond dysfunctional and chronically unjust Immigration Courts!
Particular disgust was reserved for the Administration’s intentional, continued, cowardly abuse of Haitian migrants. That, actually says more about their attitude toward true racial justice than the promise to appoint a Black Woman to the Supremes.
Welcome and long overdue as the latter is, it isn’t going to change the result on any major issue before this version of the Supremes. By contrast, the Biden Administration’s anti-Haitian policies are actually harming, dehumanizing, endangering, and even potentially killing Black migrants every day! No wonder they want to “sweep truth under the rug.”
It’s exactly the type of “applied stupidity,” willful blindness, intentional cruelty, and disdain for common sense, humanity, facts, and relevant experience that Demetrios would have resisted!
Inside the Gulag 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.
In 2017, after serving 22 years in prison for a gang-related murder I committed as a teenager, the California parole board granted me early release due to my rehabilitation and leadership while incarcerated. I was incredibly fortunate to get what I thought would be a second chance at life, and I committed myself to using my freedom to improve the world around me.
But I had to put those plans on hold. Because I was undocumented, I was immediately transferred to Immigration and Customs Enforcement custody at Yuba County Jail. The two years I spent there awaiting a decision on my immigration status were far worse than the over two decades I spent in 12 different prisons serving out my sentence.
Yuba County Jail is the last county jail under contract with the federal government to hold immigrant detainees in California. For the two years I fought my immigration case, I was psychologically, emotionally and physically abused by the Yuba County Sheriff’s Department. Some of the cells I lived in had no drinking water, others did not have working toilets and others had no lights, leaving me and other detainees in the dark all day long. My stress increased and my blood pressure became dangerously high. In 2018, after a year at the jail, I finally won my immigration case. But Department of Homeland Security attorneys appealed the judge’s decision, keeping me separated from my family, fueling my depression and suicidal thoughts. After another year of fighting the appeal, I had to make an impossible choice: Die inside Yuba County Jail or risk imminent death in my native land. After two years of inhumane treatment, I chose the latter. I signed the paperwork for self-deportation and went back to my home country.
My story is just one of thousands playing out in federally contracted county jails and privately operated ICE detention centers across the country. Despite President Biden’s campaign promise to end the use of private prisons for immigration detention, for undocumented people being held at Yuba County Jail, no relief is coming.
Yuba County Jail has a long history of violating national detention standards. From 2010 to 2021, ICE’s own detention office conducted at least eight inspections at the jail and found 171 violations. Among those violations, inspection officials determined that a sergeant, who was involved in two use-of-force incidents at the jail, participated in his own reviews. As a result of the findings, 24 members of Congress wrote a letter to Secretary of Homeland Security Alejandro Mayorkas demanding that the department terminate ICE’s contract with Yuba County. At the state level, California legislators passed SB29, forbidding local governments to enter into new detention agreements with ICE. But as The Chronicle’s reporting pointed out, in 2018, the same year SB29 took effect, ICE and Yuba County officials “quietly extended their contract” to 2099.
Why would Yuba County officials establish an indefinite contract with ICE as the rest of the state moves to end the use of its jails by federal immigration authorities? Follow the money. The contract with ICE earns the Yuba County Sheriff’s Department a minimum of just under $24,000 a day, whether or not any detainees are being held in the jail, totaling about $8.66 million per year.
When the pandemic hit, conditions inside the jail worsened. Following an April 2020 class-action lawsuit, court orders led the jail to decrease its detainee population. Thanks to the work of human right advocates and formerly detained undocumented people like myself, and others, the jail went from having 127 detainees in May 2020 to zero in late 2021. For those of us who had fought, staged hunger strikes and protested, both inside and outside the jail, it felt like we were finally seeing the end of immigrant detainment.
But our celebrations were brief. In the two months that the jail had no detainees, the county’s contract with ICE was still in place, earning it an estimated $1.4 million. And in December, ICE transported its first detainee back into the jail. As of this week, three people are now detained there under ICE custody.
The repopulation of the jail by ICE only means we will fight even harder for liberation and the termination of the contract. Over the past year, and despite being thousands of miles away, I found ways to raise my voice. I connected with others who were detained alongside me and who were also deported and encouraged them to join the fight. My wife, along with other mothers, sisters, and family members joined us as well. We hosted Instagram live videos as a space for storytelling. For weeks, I met with congressional offices and shared my story and the story of others, which ultimately led to their support.
At a recent Yuba County Board of Supervisors meeting, newly named Chairman Randy Fletcher said that the claims made in a letter sent by the ACLU to the Yuba County sheriff and Board of Supervisors about the multiple violations and unlawful conditions at the jail were not true. “They make a lot of accusations. … It’s not true. It’s just not true,” he said. But I and the other undocumented people who were detained there know what we suffered through is true. And it needs to stop.
. . . .
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Read the rest of the story at the link.
Coercion and punishment have long been part of the plan. That’s because the Supremes have fabricated the concept that “civil” imprisonment isn’t “punishment.” Pure balderdash!
Also, how does a jail get paid $1.4 million by taxpayers for nothing? Sounds like a “fleecing of America.”
But, of course, neither Garland nor Mayorkas bother to look into these questionable practices. Rather curious in light of the recommendation of a “select task force of experts” at the end of the Obama Administration that detention contracts (which frequently make establishing accountability for abuses difficult or impossible) be ended and that DHS phase out unnecessary detention.
Lack of accountability for DHS Detention is a chronic problem. So are defective bond procedures by EOIR that several Federal Courts have found unconstitutional, but which Garland continues to defend! Arbitrary bond procedures, weak internal appellate review, and lack of helpful precedents all feed the system.
Also, EOIR’s brushing aside the intentional coercion, lack of access to counsel, absence of resources, inability to prepare and document cases all contribute to the dangerous dysfunction. New, independent, expert, progressive “real judges” at EOIR would not allow Mayorkas and Garland to keep sweeping these abuses under the carpet!
Perhaps that’s why Garland has been content to allow his “courts” to malfunction using a majority of Trump/Miller holdovers and some notorious “go along to get along” bureaucrats as “judges.” Voices of expertise and reason among the IJs, and there are some, are often “silenced,” “neutered,” or “intentionally frustrated” by a BIA stacked with apologists, sometimes flat-out advocates, for DHS Enforcement and anti-immigrant policies.
Meanwhile, journalists, advocates, and those who have experienced “The Gulag” first hand need to keep it in the headlines, continue to litigate vigorously against it, and make a record of the disgraceful gap between what America claims to stand for and what it actually does! And, they would do well to “keep turning up the heat” on Garland’s “star chambers” and on his own lack of accountability for the daily disasters that unfold under his auspices.
The UW Law School launched a new center to support Wisconsin’s DREAMers, an all-encompassing term describing individuals who have lived in the United States without official lawful status since coming to the country as a minor. The Center for DREAMers was awarded a grant through the Baldwin Wisconsin Idea Endowment, a competitive grant program that fosters public engagement and the advancement of the Wisconsin Idea.
Clinical Professor and Director of the Immigrant Justice Clinic at the Law School Erin Barbato, together with Erika Rosales of the School of Education, will lead the Center for DREAMers.
Erika Rosales School of Education University of Wisconsin, Madison PHOTO: UW Law
The center will serve the approximately 11,000 DREAMers in Wisconsin, working with organizations to coordinate the provision of legal representation, mental and social services, and career and educational counseling to ease the burden of some of the uncertainty experienced by undocumented immigrants who came to the U.S. as children.
Barbato, who teaches second- and third-year law students to represent individuals in removal proceedings and with humanitarian-based immigration relief, says the center will become an important resource for the community.
“The Center for DREAMers will bring together comprehensive resources for students that have DACA in Wisconsin,” says Barbato. “Currently, no organization in Wisconsin exists that has the capacity to serve the unique educational and legal needs of DACA recipients. We hope the center will serve this population in a manner that will allow them to fulfill their potential in a state and country they call home. We are honored to have the opportunity to serve this population so they no longer have to live in fear and one day they will have equity in educational opportunities as well as citizenship.”
As a part of its community-focused approach, the center provides outreach events and support on different campus and community locations, including the South Madison Partnership. A particular focus includes outreach to DACA communities throughout the state of Wisconsin, including bi-monthly information events.
The center’s mission also aligns with the Law School’s law-in-action tradition.
“The University of Wisconsin Law School is renowned for its law-in-action approach to legal education, and the Center for DREAMers aligns with that practical approach to learning and the pursuit of equal justice,” says Dean Dan Tokaji. “We’re grateful for the Baldwin Wisconsin Idea Endowment’s support for the center and are thrilled by the opportunities this will provide for our students and the community.”
Located in the Law School’s Economic Justice Institute, the center opened in October and began providing office hours and counseling services. Clinical law students in the Immigrant Justice Clinic play an instrumental role in the center’s work, says Barbato. Under her guidance, the students provide direct representation to people with DACA in renewals and may provide representation to people with DACA who are eligible for pathways to citizenship through family, employment, or for humanitarian-based reasons.
Congratulations, Erin, my friend, on your continuing extraordinary leadership, creativity, and overwhelming commitment to achieving social justice in America. You are indeed an inspiring role model for America’s new generation of lawyers! So proud of what you and your colleagues are doing at my alma mater! Go Badgers!
WASHINGTON — Last June, the San Francisco Immigration Court quietly tested a new idea: Fast-track the cases of immigrants whose mail wasn’t reaching them. In the trial run, 80% of the immigrants scheduled were ordered deported for not showing up.
Top officials were effusive with praise over the results, emails obtained by The Chronicle show, and rushed to set up more hearings: “Very positive!” emailed one of the top supervising immigration judges overseeing the nation’s hundreds of courts.
The newly uncovered emails reveal that the fast-track docket for immigrants with returned mail, which was first reported by The San Francisco Chronicle last fall, was cheered at the highest levels of the courts and pursued with full awareness that scores of immigrants would likely be ordered deported as a result.
Advocates and attorneys for immigrants raised concerns about the practice as a sort of deportation conveyor belt last year, as many of the lawyer-less immigrants may have no idea they missed a court hearing, much less that they were ordered deported during it, because they didn’t know how to update their address with the court or thought that Immigration and Customs Enforcement would do so on their behalf. The immigration courts are run by the Justice Department, with judges hired and ultimately overseen by the attorney general.
The emails were obtained through a Freedom of Information Act request by a nonprofit watchdog group, American Oversight, prompted by The Chronicle’s reporting. The group shared the records with The Chronicle.
The Department of Justice declined to comment specifically on the emails, noting that removal orders for failing to appear in court are legally valid and that issuing notices with new hearing dates gives unreachable immigrants an opportunity to appear in court and avoid a deportation order.
Chronicle analysis of available data last year found that the practice significantly increased the number of immigrants who were ordered deported for not being present in court, called an “in absentia” removal order. As many as 173 people were given deportation orders because of such proceedings in August and September — a nearly ninefold increase from the 20 similar orders given the previous seven months combined.
This guy doesn’t realize that he could have avoided “justice” in Garland’s Star Chambers by not appearing for his hearing!
For Garland’s “judiciary,” the object appears to be avoiding fair hearings rather than conducting them! Perhaps, that’s understandable (not justifiable) considering how poorly many of his courts’ decisions fare upon judicial review in the Article IIIs.
For his cowardly attacks on migrants and backlog-building mismanagement and misdirection of EOIR, Garland gets “Courtside’s” coveted “Five Puke-Five Thumbs Down Award!” 🤮🤮🤮🤮🤮👎🏽👎🏽👎🏽👎🏽👎🏽
While Garland is failing in his job, his concerted efforts to break apart and “alienate” key segments the Dem coalition that elected Biden is succeeding and should pay great dividends (for the GOP and Trump) in the Fall Midterms! No wonder Garland’s running the system into the ground using “Trump/Miller holdovers.”
Garland and his equally poorly performing lieutenants (Monaco, Gupta, Clarke, Prelogar) are giving us a “Master Class” in “Why Dems Can’t Govern and Blow Elections 101.”
A party that lacks the courage to act on the values it espoused to get elected doesn’t stand for anything at all!🤮👎🏽
Maybe lots of Dems pulled the lever because they wanted more of Gauleiter Stephen Miller’s White Nationalist policies. But, I haven’t heard of any!
Biden’s “Shadow Attorney General” speaks through the likeness of Merrick Garland! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.comCNN Digital Expansion 2019, Priscilla Alvarez Politics Reporter, CNN
“Today we heard the same unconvincing arguments from the Biden administration that we’ve been hearing for the last year about this xenophobic and baseless policy, arguments that have already been rejected in federal court. Title 42 unjustly and unnecessarily inflicts harm on families seeking asylum at our border, and we will continue to work tirelessly to ensure that this policy ends once and for all,” said Diana Kearney, senior legal adviser with Oxfam America, in a statement.
In a recently released report, Human Rights First found nearly 9,000 reports of kidnappings and other violent attacks against people who had been expelled to Mexico or blocked from seeking protection in the US.
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Read Priscilla’s full story on the bottomless depths to which Garland has taken American “justice” and the Department of “Justice” at the link.
I can always count on Garland to illustrate and punctuate my points about his unfitness for the job of achieving racial equality, re-establishing the rule of law, and promoting human rights in America, not to mention his total unsuitability and inability to run a fair, impartial, due-process-oriented court system! He probably would have been right at home with the “GOP Six” on the Supremes.
A year ago, who would have thought that Biden and Garland share this guy’s vision of “justice” for migrants at the border and at EOIR? Image: Hernan Fednan, Creative Commons License
Dear Paul:
In this week’s First Page, we focus on the one-year anniversary of the Biden presidency — with a particular focus on policies that impact migrants and asylum seekers.
Our recently published report makes clear that the administration’s continuing use of Trump-era restrictions has led to escalating human rights violations and needless disorder.
We believe that the United States must welcome people seeking refuge with dignity, not deliver them to danger.
REPORTING THE RECORD
On Thursday, Human Rights First released a new report finding that after a year in office, the Biden administration’s continued implementation of Trump-era restrictions is sending to danger thousands of families and individuals who seek asylum protection in the United States.
The data assembled in our report, “A Shameful Record: Biden Administration’s Use of Trump Policies Endangers People Seeking Asylum,” is a damning indictment of the U.S. government’s border policies.
Courtesy Adrees Latif/Reuters
Between January 2019 and January 2022, our research identified more than 10,000 reported kidnappings, rapes, acts of torture, and other grievous acts of violence against migrants and asylum seekers blocked in, returned to, or expelled to Mexico under the U.S. government’s “Remain in Mexico” and “Title 42” policies.
At least 8,705, or 85%, of these attacks occurred during the first year of the Biden presidency.
“President Biden’s first year in office has set a shameful new record on human rights as his administration continues to deliver asylum seekers to danger in Mexico,” saidKennji Kizuka, associate director for refugee protection research at Human Rights First and co-author of the report. “The Biden administration is well aware of the grave harm asylum seekers suffer when sent to Mexico and yet it has continued to use a policy condemned by public health experts, international authorities, civil rights leaders, and even departing members of President Biden’s administration.”
Courtesy ReuterS
Our report makes clear that kidnappings and rapes of returned migrants – including of children – are common.
Cartels and other organized criminal groups in Mexico have turned torturing asylum seekers and extorting their U.S. family members into a new and lucrative illicit enterprise. At least three asylum seekers sent to Mexico by DHS under these policies were murdered.
Equally frightening, our research shows that Mexican police, immigration officers, and other authorities are often complicit in – if not directly responsible for – these attacks.
Courtesy Getty
As the Biden administration restarts the inherently flawed “Remain in Mexico” program in the wake of court rulings, they have already sent asylum seekers from Cuba, Nicaragua, Venezuela, and other countries to “wait” for their day in immigration court in danger in Mexico.
In addition to inflicting grave and systematic suffering, these policies continue to perpetuate disorder, encourage repeat entries, inflate apprehension statistics, cause family separations, and fuel cartels by putting a bullseye on the backs of people seeking U.S. asylum who are blocked in Mexico.
Despite the Biden administration’s earlier efforts to terminate “Remain in Mexico,” when it was ordered by a federal court to re-implement the program, the administration has now chosen to expand its scope.
Today the administration is defending the expulsion policy in federal court, with a hearing in a lawsuit challenging expulsions of families at the D.C. Circuit Court of Appeals.
HIRING FOR HUMAN RIGHTS
Reports like A Shameful Record are just one element of our critical efforts to defend the dignity of all people.
Human Rights First seeks passionate team members who are interested in legal, communications, development, finance, and innovation work that can change lives, impact policy, and move public opinion.
Please check out our careers page and apply to join us today.
* * * * *
Watch for more news as our work for human rights continues. And please stay in touch on social media:
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You can read the full version of “A Shameful Record” at the above link.
Not to mention that the extreme lack of expertise, humanity, and quality control in Garland’s wholly-owned Immigration Courts is corroding American justice from the “retail level” up. So unnecessary! So divisive! Such a missed opportunity for Dems to actually govern with values and in the public interest!
Wow! Think of the incredible waste: So much talent, energy, creativity, and manpower that could be working with the Administration to solve problems and make things better for everyone. Instead they are engaged in an all-out war to stop the Biden Administration’s cruel, spineless, and highly ineffective immigration and human rights blunders and, once again, be the last line of defense for American democracy against the Dems’ self-destructive policies and actions.
Garland’s methods for attracting, recruiting, hiring, and retaining Immigration Judges have not inspired confidence from the NDPA and other expert critics of his totally dysfunctional, wholly-owned and operated, exponentially backlogged, poorly performing Immigration “Courts.” PHOTO: Thomas Hawk Creative Commons Amateur Night
The latest judge-by-judge data from the Immigration Courts indicate that more judges are resigning and retiring. Turnover is the highest since records began in FY 1997 over two decades ago. These results are based on detailed records obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University under the Freedom of Information Act (FOIA) from the Executive Office for Immigration Review (EOIR) which administers the Courts.
During FY 2019 a record number of 35 judges left the bench. This is up from the previous record set in FY 2017 when 20 judges left the bench, and 27 judges left in FY 2018. See Figure 1.
. . . .
There has also been an increase in hiring (see Table 1). The combination of elevated hiring plus a record number of judges leaving the bench means more cases are being heard by judges with quite limited experience as immigration judges.
Currently one of every three (32%) judges have only held their position since FY 2019. Half (48%) of the judges serving today were appointed in the last two and a half years. And nearly two-thirds (64%) were appointed since FY 2017[1]. See Figure 2.
. . . .
Thus, record judge turnover means the Court is losing its most experienced judges, judges whose services would be of particular value in helping mentor the large number of new immigration judges now joining the Court’s ranks. Even with mentoring, new judges appointed without any background in the intricacies of immigration law face a very steep learning curve. And without adequate mentoring, there is a heightened risk that some immigrants’ cases could be decided incorrectly.
. . . .
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Read the complete report, with charts and graphs, at the above link.
It certainly didn’t help that Garland inexcusably wasted dozens of his “first picks” on Barr’s pipeline appointments — a group that contained few, if any, recognizable “practical scholars” in immigration/human rights/due process/equal justice.
This also shows why adding more judges under Garland’s indolent and ineffective “leadership to the bottom” is likely to aggravate, rather than alleviate, the myriad of problems and the uncontrolled mushrooming backlogs in his dysfunctional courts.
Garland’s mind-boggling failure to act on principles and make obvious, long overdue personnel and structural reforms at EOIR threatens to shred the Dem party and endanger the future of American democracy! It also underlines the hollowness of Biden’s pledge to fight for equal justice and voting rights reforms.
Faced with a wholly owned system badly in need of progressive reforms, the Biden Administration has carried on many of the scurrilous traditions of its Trump predecessors (“MillerLite policies”) while shunning and disrespecting the advice, values, and participation of progressives committed to due process and fair treatment of all persons, regardless of race, color, creed, or status.
And, of course, it goes without saying that Garland has failed to address the glaring integrity and access problems infecting EOIR data, as outlined in the TRAC report above. With “disappearing records,” “stonewalling party lines,” and institutionalized “lack of transparency,” who really knows what the real size of Garland’s backlog is or what other problems are hidden in his EOIR morass?
It just underlines the need for an independent team of professionals to take over Garland’s broken system, “kick some tail,”and get to the bottom of its many, many, largely self-created and often hidden from the public problems and enduring failures!
Overall, a disappointing and disgraceful first-year performance by an experienced Judge and DOJ vet from whom much, much better was expected and required.
Too bad we didn’t get an Attorney General with the guts to lead and engage on progressive reforms at EOIR! One bright spot, though: Some of the “best ever” judges just leave the bench and call “Sir Jeffrey” Chase to enlist in the Round Table’s battle to advance due process and fundamental fairness! 🛡⚔️ And, they are welcomed with appreciation, respect, friendship, and love — things that few, if any, sitting judges in Garland’s dysfunctional and discombobulated system get!
🇺🇸Due Process Forever! Garland’s “Amateur Night @ The Bijou” Never!
Immigration Court Backlog Now Growing Faster Than Ever, Burying Judges in an Avalanche of Cases
The U.S. Immigration Court system is currently staring up a mountain of pending cases that at the end of December 2021 reached 1,596,193 — the largest in history. If every person with a pending immigration case were gathered together it would be larger than the population of Philadelphia, the sixth largest city in the United States. Previous administrations — all the way back through at least the George W. Bush administration — have failed when they tried to tackle the seemingly intractable problem of the Immigration Court “backlog.”
Yet a disturbing new trend has emerged during the Biden administration that demands attention: since the start of the Biden administration, the growth of the backlog has been accelerating at a breakneck pace.
Quarterly growth in the number of pending Immigration Court cases between October and December 2021 is the largest on record. In just this short period, the backlog increased by almost 140,000 cases. This far exceeds any 3-month increase during the most dramatic period of growth of the Trump administration. These findings suggest that the Immigration Courts are entering a worrying new era of even more crushing caseloads — all the more concerning since no attempt at a solution has yet been able to reverse the avalanche of cases that Immigration Judges now face.
The partial Court shutdown during the COVID-19 pandemic has, of course, contributed to the backlog’s growth. However, the main contributor is the recent deluge of new cases filed by the Department of Homeland Security (DHS). If the current pace during the first quarter of FY 2022 of newly arriving Notices to Appear (NTAs) continues, the Court will receive 800,000 new cases — at least 300,000 more than the annual total the Court has ever received during its existence.
For full details, including a review of the history leading to this juncture, read the full report at:
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University.
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What’s Garland’s next target: a backlog bigger than Chicago, New York, Los Angeles?
Garland was warned in advance about the extreme dysfunction in his courts and the urgent need to make fixing it one of his highest priorities. Instead of immediately bringing in progressive experts, replacing the BIA, hiring better judges and innovative administrators to address the backlog, attack poor judicial quality, and curb abuse of the system by DHS, Garland has simply failed to take due process, fundamental fairness, and best practices seriously. He has also compounded the disaster by using “proven to fail” enforcement and deterrence gimmicks and retaining poor quality managers and judges packed into the system by Sessions and Barr.
The worse the dysfunction gets under Garland, the harder it will be to convince the “best and brightest” to undertake the challenge of fixing it!
Also, time’s a wasting. The first year of any Administration is the time to get things done. Garland has already squandered that precious time!
This system is totally out of control and crushing the lives and futures of those caught up in it. Sadly, nobody in power in any of the three branches seems interested, motivated, or courageous enough to fix it. That’s bad for our democracy!
But these are, mostly, obscure policy changes or unrealized proposals. When Miller et al. condemn Biden’s “immigration record,” they zero in on his decisions at the Southern border.
Which is, frankly, odd. You’d never know it from the right-wing hysteria about Biden’s supposedly “open borders,” or Biden’s own campaign promise to “end Trump’s detrimental asylum policies.” But Biden has continued Trump’s most restrictionist, inhumane and possibly illegal border policies.
In some cases Biden has even expanded them.
As evidence of Biden’s supposedly lax border policies, Republicans sometimes cite his attempt, on Day One of his presidency, to end the program informally known as “Remain in Mexico.” This Trump-created program forced asylum seekers to wait in dangerous camps in Mexico while their U.S. cases were processed; there, vulnerable immigrants have been frequent targets for rape, kidnappings, torture and murder.
If Biden had terminated the program, that would have been a good thing, from a human rights perspective (not a Republican priority, apparently). But Biden did not succeed. After a legal challenge, a federal judge ordered the program to be resurrected — and the Biden administration not only obeyed but also expanded the program’s scope to cover even more categories of immigrants.
[Catherine Rampell: Joe Biden is president. Why is he maintaining Trump’s immigration agenda?]
Worse, Biden has maintained Trump’s Title 42 order. This likely illegal order involves automatically expelling hundreds of thousands of people encountered at the border without ever allowing them to apply for asylum, in contravention of rights guaranteed under both U.S. and international law. Both Trump and Biden have cited a little-used public health provision as pretext for this policy, even though legions of public health experts have argued that it doesn’t protect public health.
Perversely, continuing this Trump policy has also given ammunition to the hard-right nativists, because it has the unintended consequence of inflating the count of U.S. border crossings. Many of those expelled immediately turn around and attempt another crossing; in fiscal 2021, 27 percent of individuals were apprehended multiple times by Border Patrol, nearly quadruple the share in 2019.
The disconnect between GOP claims about “open borders” and Biden’s actually-quite-Trumpy border policies, is enormous. Two of Biden’s own political appointees who resigned last fall lambasted his actions as “inhumane” on their way out the door; six other high-level immigration officials have recently announced they were leaving the administration, without much public explanation.
It’s unclear why Biden has maintained his predecessor’s policies. One possibility is politics — that these choices were intended to stave off right-wing attacks about lax enforcement. If that was the motivation, though, it failed. Instead, Biden has delivered the worst of all worlds: inhumane, immoral, potentially illegal policy — and bad-faith political blowback about “open borders” all the same.
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Yup! It’s what “Courtside” has been saying all along!Read her complete article at the link!
Catherine sees much more clearly than any member of the Biden Administration the ridiculous failings of their so-called “immigration policies” (actually a series of disjointed, often self-contradictory, knee-jerk responses that sometimes undermine each other and reflect a total lack of thoughtful, morally courageous, informed leadership).
And, Catherine doesn’t even highlight the single biggest failure — one that cuts across every failure she mentions and also goes to the heart of our legal system!
That’s, of course, the abject failure of Biden AG Merrick Garland to bring due process reforms and better judges to his totally dysfunctional, grotesquely unfair, wholly-owned U.S. Immigration Courts. These “courts” — that function more like 21st Century Star Chambers than anyone’s concept of a “real court” — were “weaponized” by Garland’s Trumpy predecessors, Sessions and Barr.
They filled the courts at all levels with less than well qualified judges, many with no immigration experience or prosecutorial experience only, who were intended to help carry out the White Nationalist, anti-asylum, anti-immigrant policies developed by Gauleiter Stephen Miller. Garland has not replaced these unqualified judges with better talent, selected in a open, transparent, merit-based process with “outside input.” He has failed to make the substantive and procedural reforms necessary to bring order and some semblance of efficiency to his hopelessly backlogged “courts.”
He has declined to remove poor leaders appointed by his predecessors; nor has he tapped the large supply of progressive, expert human rights/immigration talent who could begin the process of restoring due process. He has continued to promote enforcement “gimmicks” — like “Dedicated Dockets” and the illegal use of Title 42 — that accelerate “Aimless Docket Reshuffling” and have led to even higher backlogs.
His refusal to bring common sense, achievable reforms, and better judges to the Immigration Courts has demoralized lawyers and made pro bono representation even more difficult.
He has ignored the pressing need for better judicial training implemented by qualified outside experts. He hasn’t bothered to engage with those like the VIISTA Villanova program turning out exceptionally well-trained potential “accredited representatives” who could help reduce the staggering representation gap in his courts. Worse yet, he has allowed EOIR bureaucrats to create entirely new backlogs in the agency process for recognizing pro bono organizations and accrediting their representatives.
Garland’s horrible failure to energize and attract the progressive leadership and judicial talent who know how to begin solving these problems (rather than aggravating them) might eventually go down as one of the biggest “blown opportunities” for due process reforms in modern American legal history! This is the “low hanging fruit” that Garland and the Biden Administration has allowed to “rot on the tree.” What a (needless and deadly) tragedy!
Every year, on the third Monday in January, America hosts a Sadie Hawkins-style role-reversal where the entire country pretends to celebrate a man whose achievements and values they spent the previous 364 days ignoring, demonizing and trying to dismantle. Today, your favorite vote suppressors will take a brief respite from disenfranchising Black voters, denying history and increasing inequality to celebrate a real American hero.
That’s right, it’s MLK Day!
You might think it’s a little disrespectful to refer to a great American hero by his initials but, in this specific case, it’s perfectly fine. The actual Martin Luther King Jr who lived and breathed is not the man most people will be honoring today because that Martin Luther King is dead and gone. No, the man upon whom they will heap their performative praise with social media virtue-signaling is MLK, a caricature of a man whose likeness has been made palatable for white consumption. Like BLM, CRT and USA, the people who King fought against have now managed to flatten a three-dimensional symbol to a three-letter, chant-worthy phrase worthy of demonization or deification.
. . . .
Although, in death, he became one of the most revered figures in US history, for the entirety of the 39 years that King lived and breathed, there wasn’t a single day when the majority of white Americans approved of him. In 1966, Gallup measured his approval rating at 32% positive and 63% negative. That same year, a December Harris poll found that 50% of whites felt King was “hurting the negro cause of civil rights” while only 36% felt he was helping. By the time he died in 1968, three out of four white Americans disapproved of him. In the wake of his assassination, 31% of the country felt that he “brought it on himself”.
One does not have to reach back into the historical archives to explain why King was so despised. The sentiments that made him a villain are still prevalent in America today. When he was alive, King was a walking, talking example of everything this country despises about the quest for Black liberation. He railed against police brutality. He reminded the country of its racist past. He scolded the powers that be for income inequality and systemic racism. Not only did he condemn the openly racist opponents of equality, he reminded the legions of whites who were willing to sit idly by while their fellow countrymen were oppressed that they were also oppressors. “He who passively accepts evil is as much involved in it as he who helps to perpetrate it,” King said. “He who accepts evil without protesting against it is really cooperating with it.”
. . . .
“The first thing I would like to mention is that there must be a recognition on the part of everybody in this nation that America is still a racist country,” said King days before a white supremacist put a bullet in his face. “Now however unpleasant that sounds, it is the truth. And we will never solve the problem of racism until there is a recognition of the fact that racism still stands at the center of so much of our nation and we must see racism for what it is.”
See how many times someone mentions that quote today.
Oh, wait … King made that speech at Grosse Pointe High School, where Michigan’s Republican-controlled House of Representatives recently passed an anti-CRT bill making it illegal to teach that the “United States is a fundamentally racist country”.
Never mind.
. . . .
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Read the full article at the link.
Like the figure of Christ in Dostoyevsky’s The Grand Inquisitor, if Dr. King returned to earth today he would be imprisoned, interrogated, condemned and permanently banished by the corrupt and cowardly right-wing pols, religious bigots, disingenuous judges, pundits, and others who falsely claim to be honoring his memory and vision of racial equality!
So what should we tell our students? Many are dispirited and cynical because, as far into the future as they can see, this court appears likely to do more harm than good to democracy.
First, we shouldn’t hide the reality that judicial decisions often depend on who is on the bench. That has never been more true because the entrenched partisan Senate confirmation process now guarantees that a Supreme Court nominee will be chosen to carry out political and ideological aims. For the first time in American history, the ideology of the justices precisely corresponds to the political party of the president who appointed them. All six conservatives were appointed by Republican presidents and all three liberals were appointed by Democrats.
Until recently, there were moderate liberals, such as John Paul Stevens and David H. Souter, appointed by Republicans, and there were moderate conservatives, such as Byron White and Felix Frankfurter, who had been appointed by Democrats. Trump picked three of the most ideologically conservative judges on the federal bench.
If students are to one day become effective litigators on constitutional rights, they will need to understand the ideologies of the justices interpreting the law. In the past, we certainly discussed the ideology of the justices with our students, but we must focus on it far more now as the ideological differences between the Republican-appointed justices and judges and those appointed by Democratic presidents are greater than they have ever been.
Second, we must remind students that there have been other bleak times in constitutional law when rights were contracted. From the 1890s until 1936, a conservative Supreme Court struck down over 200 progressive federal, state and local laws protecting workers and consumers. In the late 1940s and early 1950s, the court refused to stand up to the hysteria of McCarthyism. The current court will not last forever, though it may feel like that to them.
Third, we should direct focus on other avenues for change. Students need to look more to state courts and legislatures, at least in some parts of the country, as a way to advance liberty and equality. For instance, the Massachusetts Legislature passed a law known as the “Roe Act,” protecting a woman’s right to abortion under state law, no matter what the Supreme Court decides. We need to teach our students how to use the power of local governments to protect fair housing, public education and public health.
Fourth, we must encourage them to look at the sweep of history. In the early 1960s, almost half the states had Jim Crow segregation laws, there were few women going to law school, and every state had a law criminally prohibiting same-sex sexual activity. The Rev. Martin Luther King Jr. was right when he said that the arc of the moral universe is long and it bends toward justice — if we work for it.
There really are just two choices: Give up or fight harder, even if there will be a lot of losses along the way. If we can instill in students a desire to defend justice, even if victory is distant, it will be a good semester, no matter what the Supreme Court decides.
Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion. Jeffrey Abramson is professor of law and government at the University of Texas at Austin.
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Read the full article at the above link.
Sometimes, the best you can do is save as many lives as you can, one at a time. Eventually, it adds up. Also, as the article suggests, it’s critical to get involved and speak out on local political issues. That’s where the fascist far-right has made huge inroads.
Yilun Cheng Immigration Reporter, Columbus Dispatch PHOTO: TwitterAttorneys who complain about misbehaving judges in Merrick Garland’s dysfunctional Immigration “Courts” might well find themselves in uncomfortable positions! Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
In the fall of 2020, “Juan” had trouble falling asleep whenever he thought about his upcoming court appearance in Cleveland, where the only immigration court in Ohio is located.
The 43-year-old father of three from Mexico, who asked to remain anonymous for fear of retaliation, had already gone through three hours-long hearings for his application to obtain permanent residency. He said he was nervous and exhausted when he stepped into the court on Oct. 16, 2020, for his fourth hearing.
Juan expected from experience that he would once again face a series of aggressive questions from Judge Teresa Riley, whose intimidating style almost made him give up on his case altogether, he said.
But it still astounded him when Riley called Mexican immigrants “illegals” while cross-examining his wife about the subcontractors that Juan employed at his construction business.
Citing the experience of six anonymous immigrants, including Juan, the complaint accuses Riley of biases against Latino immigrants, bullying and hostile questioning, a lack of professional competence and other alleged misconducts.
But complainants like complainants like Juan and their attorneys said they have been disappointed that their efforts did not lead to any lasting changes or that there was little transparency in the investigation process.
Riley stopped hearing cases for a few weeks in July and August, but returned shortly after, according to hearing schedules shared with the Dispatch. It is unclear why the judge was absent.
. . . .
Because these complaints rarely generate substantial disciplinary actions and there is a fear of retaliation from the judges, immigration attorneys and their clients often hesitate to report misconducts, said Austin Kocher, a research associate professor at the Transactional Records Access Clearinghouse, a research institute at Syracuse University.
“Immigration attorneys don’t file these complaints often enough because they still have to practice in front of these judges,” said Kocher, whose research focuses on immigration policies. “You can’t file a complaint one day against a judge and the next day come in with your client and expect the judge to treat them well. There’s just a real lack of systematic accountability.”
. . . .
Emmanuel Olawale, a Westerville-based immigration attorney, said he has faced this dilemma firsthand. In October 2020, when he received a notice from the Cleveland Immigration Court that the asylum case of one of his clients was denied, he was disturbed by the language that Judge Jonathan Owens used in the decision.
In the asylum application, Olawale’s client, a 22-year-old asylum seeker from Cameroon, said armed officers from that country sexually assaulted her when she was a minor while they were searching for English-speaking dissidents like her family.
In an attempt to establish that the abuse did not happen due to the client’s identity, Owen stated that it is likely that officers raped the teenage girl not because she was a member of the English-speaking minority but because “they wanted to do so and thought that the respondent was a pretty virgin,” according to court documents shared with The Dispatch.
“If someone’s a ‘pretty virgin,’ is that a good reason for them to rape her in any context?” Olawale said. “That statement is misogynistic and very shocking to me.”
Instead of submitting a complaint against Owen, however, the immigration attorney opted to voice his concerns in an appeal, which is currently pending.
“Filing a complaint against the judge is something on the table,” Olawale said. “But it won’t really change anything in my client’s case. There’s also an imbalance of power in the courtroom and the fear of retaliation. I’ll have to weigh my options and consider how bad it is before I stick my neck out there.”
. . . .
Judges are not always made aware of the existence of a complaint in a timely fashion, and there is no transparency or consistency when it comes to sanctions imposed in a particular case, according to Dana Marks, president emerita at the National Association of Immigration Judges who spent 35 years on the bench in San Francisco, California, before retiring in December.
“It’s not consistent because a complaint usually starts out with the person’s immediate supervisor being told,” Marks said. “Some of the supervisors discuss the complaint with the judge immediately and others don’t. There’s a wide spectrum of when judges are notified, how much information they are provided, and whether they are allowed to give their side of the story before decisions are made.”
There is a fine line between judges’ taking a harsh stance on immigration and their exhibiting unprofessional behaviors, said Paul Schmidt, a former immigration judge based in Arlington, Virginia, who retired in 2016. While judges should not be punished for making a good-faith legal decision, using terms like “illegals” seems to be a clear violation of professionalism, he said.
“There are complaints that were made because someone is not happy that they lost a case, and those claims need to be taken with a grain of salt,” Schmidt said. “But at the point where judges are using racially charged terms or demeaning people, then that seems to me that it goes beyond what they should be allowed to do.”
. . . .
The Cleveland Immigration Court, much like the rest of the country, saw dramatic personnel changes during Donald Trump’s presidency.
The court used to have only three judges, all of whom have since left their posts. The Trump administration filled the openings and expanded the size of the bench, appointing 10 judges who currently make up the court. Most of them are former government attorneys, and five used to prosecute immigration cases on behalf of the Department of Homeland Security.
The lack of a transparent complaint process is especially concerning given an influx of new judges, who tend to come from enforcement backgrounds and lack experience on the bench, [Attorney Julie] Nemecek said.
“I think about the hundreds of thousands of immigrants across the country who have been wronged by the misconducts of Trump-appointed judges,” she said. “There are still good judges out there. But we have to address these bad judges.”
. . . .
Yilun Cheng is a Report for America corps member and covers immigration issues for the Dispatch. Your donation to match our RFA grant helps keep her writing stories like this one. Please consider making a tax-deductible donation at https://bit.ly/3fNsGaZ.
ycheng@dispatch.com
@ChengYilun
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Read Yulin’s full article at the link.
First, congrats to Yulin Cheng! Last time I published her work, she was an aspiring student journalist.
Now, she’s a Report for America member carrying out her dream and commitment to report truth and hold immigration officials, regardless of party affiliation, accountable for their mockery of the rule of law and shunning of best practices!
So, why might a private practitioner hesitate to file a complaint against an Immigration Judge in Garland’s system still “packed” with a majority of judges hand-selected by White Nationalist nativists Sessions and Barr?
The complaint would go not to an independent, objective panel containing public representation. No, it would be treated as a “supervisory matter” in an agency (not a real “court”) where the ranks of supervisors are still stacked with Barr & Sessions appointees that Garland hasn’t replaced.
Stunningly, the “top judge” in this bizarre, abusive, and dysfunctional system is Chief Immigration Judge Tracy Short — a hard line DHS prosecutor with no prior judicial experience elevated by Barr because of his commitment to the Stephen Miller White Nationalist, anti-asylum, anti-attorney agenda! Remarkably, Garland hasn’t replaced Short with a competent, expert, due-process-oriented “real judge,” notwithstanding unanimous urging from immigration experts that he do so!
Pursue as an alternative a legal appeal to Garland’s BIA? Well, amazingly, that body also remains “packed” with 23 of 24 appellate judges who are holdovers from the Trump Administration. Several of these judges were themselves members of the “90% asylum deniers club” and some were renowned for their disrespect for immigrants (particularly asylum seekers) and their lawyers while on the trial bench.
Look for some binding BIA precedents on improper IJ conduct? Won’t find those either, save for a mild, pre-Trump rebuke of an Atlanta IJ (without identifying the judge) for abusing a juvenile in court.
Then, there’s Garland himself. For heaven’s sake, even Bush crony former AG Alberto Gonzales (“Gonzo I”) finally got so embarrassed by the misbehavior of his IJs that he had to publicly “call off the dogs.”But, from Garland, not a peep or decisive action demanding that his “wholly-owned judges” put due process and fundamental fairness first and treat the individuals coming before them and their lawyers with professionalism, dignity, and respect!
Judge Riley, appointed by Barr in May 2019, without any significant immigration or human rights background, has a TRAC asylum denial rate of 87.7%.
Judge Owens, appointed by Sessions in August 2018, also without any significant immigration or human rights background, has a TRAC asylum denial rate of 94.5%. That’s 58th highest out of 558 Immigration Judges!
The TRAC “national average” for asylum denials by IJs during this period was 67.6%.
So, even in the virulent, officially-sanctioned “anti-asylum era” @ EOIR during the late Obama Administration and the entire Trump Administration, these two judges are “outliers.”
As someone familiar with the Ohio Immigration Bar, there are dozens of much better qualified judicial candidates out there in the private sector. Some of them even applied in the past and were rejected in favor of these judges who, whatever else you might think, no expert would find to be among “best and brightest minds in immigration and human rights,” deserving of elevation to the bench.
All Immigration Judges are “DOJ attorneys,” serving “at the pleasure of the Attorney General” and therefore subject to replacement and/or reassignment at his discretion. Judge Riley was “in probation” until May 20121, so Garland could have terminated her, essentially for any reason, or at least “re-competed” her position under a fair process that would have been open, welcoming to immigration experts in the private sector, and involved private sector input.
Owens and the other Trump-era appointees should also have been required to re-compete for their positions under revised procedures. It’s unlikely either Owens or Riley would have been selected in such a merit-based process.
Of course, Garland has not actively recruited from among better-qualified diverse expert immigration practitioners, established transparent merit-based procedures, or re-competed the disgracefully inadequate selections of his White Nationalist, anti-immigrant predecessors!
Additionally, Garland has failed to address, in any manner whatsoever, the quality control, bad attitude, lack of professionalism, and anti-immigrant bias problems in his dysfunctional Immigration Courts. Poor precedents continue to be issued by his BIA, and sloppy work by his judges at all levels continues to be “outed” by the Article IIIs notwithstanding the substantial (undue) deference given to EOIR decisions by the Article IIIs. Backlog building “Aimless Docket Reshuffling” and “mindless gimmicks” continue to proliferate under Garland’s disconnected leadership.
The disciplinary system remains opaque and highly ineffective. Illegal retaliation by IJs against those filing complaints remains a realistic possibility that actually deters and improperly discourages reporting of misconduct. An ineffective, “rubber-stamp” appellate review process of removal orders by the BIA almost never holds IJs accountable, even for the most egregious legal errors and the grossest misconduct on the bench.
While Circuit Courts point out the deficient performance of EOIR judges on a remarkably frequent basis, one will search in vain for any recent BIA precedent “calling out” inappropriate and biased treatment of respondents and their lawyers in Immigration Court. Likewise, while Jeff Sessions was outspoken in encouraging anti-asylum and anti-lawyer bias among “his judges,” I’m not aware that Garland, in word or deed, has ever insisted that Immigration Judges at all levels give primacy to due process, fundamental fairness, and treat all coming before them with dignity and respect. In other words, Garland has failed to use his “bully pulpit” to demand an end to bullying of the most vulnerable among us in his Immigration Courts.
He also has failed to repudiate the “DHS Enforcement is our partner” statements by Sessions. (Perhaps not surprisingly, since, as noted earlier, Garland employs a DHS prosecutor, Tracy Short, as his “top judge” notwithstanding Short’s glaring unsuitability for the position. And, Garland continues to defend many “Miller Lite” policies in Federal Court.)
Pro-DHS biases, mistreatment of migrants and their attorneys, lack of basic scholarship, and failure of impartial judging continue to run rampant in Garland’s broken system!
Indeed, a full year the SF Chron’sTal Kopan exposed the misconduct by Immigration Judges throughout the nation, the DOJ has taken no known actions despite Deputy AG Lisa Monaco’s “promise to investigate.”
From top to bottom, this broken, unfair, and out of control system needs reform, redirection, integrity, a focus on due process, and decisional excellence. It certainly isn’t coming from Garland and his senior political team at DOJ. So where IS it going to come from?
Chair Lofgren and her Subcommittee need to find out why Garland has failed to address the ongoing disaster in his courts, and what needs to be done to bring due process, fundamental fairness, equal justice, and respect for humanity to the forefront at EOIR, the DOJ, and the rest of our legal system! And, if anyone in the Administration stubbornly claims that the “primary answer” is to randomly throw more judges into this toxic mess, Lofgren should laugh in their face(s)! We need to replace bad judges and reform the existing system into something fair and functional before seeking to expand it, even assuming that expansion is warranted somewhere “down the line.”
As being run by Garland right now, EOIR is an affront to American democracy! That needs to stop!
Sadly, a couple of correct decisions, no matter how welcome, aren’t going to solve the systemic due process deficiencies in Ohio or elsewhere in Garland’s dysfunctional nationwide “Clown Courts.” 🤡
There are some pressing problems in America that Dems and the Biden Administration can’t solve on their own. Garland’s dysfunctional Immigration Courts are NOT one of those!
The Immigration Courts are the biggest most consequential national problem that is totally within the Administration’s power to fix. That Garland has failed to do so should be of existential concern and a cause for unrelenting outrage from all who believe in the future of American democracy!
