Equal Protection – Page 21 – immigrationcourtside.com

🗽”HUMANE BORDER POLICIES ARE POSSIBLE” — NIJC HAS 5 STRAIGHTFORWARD POLICY RECOMMENDATIONS FOR A HUMANE, ORDERLY BORDER! — The Biden Administration Appears Uninterested!🤯

Julia Toepfer
National Immigrant Justice Center (“NIJC”)

Humane border policies are possible. Here are five solutions.

The United States continues to struggle to create and implement humane border policies that respect domestic and international law and the dignity of people seeking protection. NIJC’s policy experts convened with other experts to suggest five solutions for a humane border policy. Read more about the solutions and see our graphics series.

AUTHOR NIJC Policy Team

The U.S. government and governments around the world are grappling with an increase in the number of people forcibly displaced from their homes by political and social oppression. Despite campaign commitments to restore humanity to immigration policy, the Biden administration has largely continued Trump-era policies at the U.S.-Mexico border. These policies blatantly undermine domestic and international asylum law; result in countless deaths; and create rather than mitigate chaos as people blocked from protection have little choice but to resort to multiple and more dangerous border crossing attempts.

What should the Biden administration be doing to address the humanitarian need at the border? There are other ways to address the situation at the border, leading with empathy and courage in compliance with the Refugee Act of 1980.

The administration can and should: 1) develop and support robust communication and planning between federal, state and local governments, and civil society, so that those arriving migrants in need of additional support can be matched with a destination with capacity to provide services; 2) fully fund and support civil society, including social and legal service providers; 3) create non-custodial, humanitarian reception centers at the border, instead of jailing migrants and asylum seekers; and 4) overhaul the federal immigration budget by moving funds away from detention and enforcement and toward asylum processing and humanitarian needs.

While taking these steps the administration must 5) abide by its obligation to ensure asylum access to those arriving at the United States’ borders and ports. The Refugee Convention, which Congress incorporated into U.S. law, was borne out of the horrors of World War II and the Nazi Genocide. It reminds us of a history we must not repeat, when the United States was among those countries that turned European Jewish refugees away, back to their deaths. Policies developed during the Trump administration, including the Title 42 mass expulsions policy and asylum bans that deny protection on the basis of a person’s manner of entry, stand in blatant violation of this obligation.

Processing large – even unprecedented – numbers of asylum seekers is possible. In the aftermath of the Russian invasion of Ukraine, there was an outpouring of support and political will to welcome Ukrainians forced to flee. In only a five-month period following the invasion, the United States processed and received more than 100,000 Ukrainians. The Department of Homeland Security (DHS) has tremendous authority and resources at its fingertips; with political will and a reprioritization of funding, the United States absolutely has the means to become a leader in the response to the global refugee crisis and to provide dignity and respect to those arriving at the border in search of safe haven.

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Get more details at the above link.

This is exactly the kind of practical, progressive thinking and planning that the Biden Administration should have been ready to “run with” upon taking office. They also needed a different leadership team with the skills, expertise, and guts to put policies like this in place and stick with them.

Instead they have been cowed by nativists and wobbly Dem “faux centerists” into an ill-defined and ineptly led program of “Miller Lite” deterrence lamely leavened with arbitrary stabs at amelioration untethered to a statutory framework! They also needed a much better legal team led by skilled, dedicated litigators with proven ability to defend humanitarian legal policies against predictable scurrilous, but determined, well-financed litigation by White Nationalist advocates designed to block progress and insure that equal justice for all would remain a slogan rather than a reality!

🇺🇸 Due Process Forever!

PWS

02-03-23

🤯 BIDEN ADMINISTRATION’S ACCEPTANCE OF GOP’S NATIVIST MISCHARACTERIZATION OF REFUGEE CRISIS AS A FAUX “LAW ENFORCEMENT CRISIS” @ OUR SOUTHERN BORDER HAS DAMAGED HUMANITY & IMPAIRS DEMOCRACY — “The Biden administration fell into the trap of letting its opponents define the terms of the debate.”— Stuart Anderson @ Reason

Stuart Anderson
Executive Director
National Foundation for American Policy
PHOTO:LInkedin

https://reason.com/2023/01/26/a-historic-refugee-crisis-miscast-as-a-border-emergency/

Stuart writes:

. . . .

The Biden administration fell into the trap of letting its opponents define the terms of the debate. . . . .

Arranging care for asylum seekers would have been necessary even with a better metric. However, managing the humanitarian flow would have been easier if the Biden administration had allowed those seeking asylum to apply in an orderly, timed fashion at a lawful port of entry.. . . .

. . . .

Members of Congress and others who oppose the Biden administration’s parole program raised no objections to the Trump administration dismantling the U.S. refugee program. They also have not advocated for any other legal way for people escaping oppressive governments to enter America. Without paths to enter lawfully, it is inevitable that more people will cross into the U.S. illegally.

. . . .

Critics of the increase in CBP encounters argue, without much evidence, that individuals would not come to America if U.S. immigration policy were harsher—in other words, if Biden were more like Trump.

Despite what his supporters assert, Trump’s policies did not reduce illegal immigration or discourage people from applying for asylum. Pending asylum cases rose by nearly 300 percent between FY 2016 and FY 2020 (from 163,451 to 614,751), according to Syracuse University’s Transactional Records Access Clearinghouse. Apprehensions at the southwest border (a proxy for illegal entry) rose more than 100 percent between FY 2016 and FY 2019 (from 408,870 to 851,508). Apprehensions fell for several months at the start of the COVID-19 pandemic, but by August and September 2020, apprehensions returned to the approximate level of illegal entry for the same months in FY 2019.

Providing individuals with legal ways to work or seek protection in America is the only viable way to reduce illegal immigration. Treating people humanely is not a sign of weakness. Allowing for orderly entry is a smart policy consistent with America’s best tradition as a nation of immigrants and refugees.

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I highly recommend reading Stuart’s complete article at the link. Members of the so-called “mainstream media,” whose stories often do not accurately reflect the legal right to apply for asylum at the border, which has been shamefully ignored and/or abridged by both Trump and Biden, would also do well to read Stuart’s accurate description of our needlessly screwed up administration of refugee and asylum laws. Most media articles also fail to accurately distinguish between those (often vainly) seeking just to exercise their legal right to apply for asylum at the border and other individuals who might irregularly cross the border.

The real, oft-ignored, problem here is that the Trump Administration dismantled the legal refugee programs established by the Refugee Act of 1980. Then, they unlawfully “repealed” asylum law at the border. Worse yet, Congress and bad GOP appointed Federal Judges let them get away with this outrageously illegal and highly counterproductive conduct (at least to date).

By the time the Biden Administration took office, the real “solvable” part of the problem at the Southern Border was well defined by experts: The US Government’s intentional violation of laws protecting refugees and legal asylum seekers and guaranteeing the latter fair and timely assessment and adjudication of their claims.

The Biden Administration could and should have “hit the ground running” with an aggressive program (and defense thereof) of restoration of the rule of law for refugees, who could and should have been processed in larger numbers outside the U.S. in Latin America and the Caribbean, combined with a restoration of the rule of law for asylum seekers at the, border, led by a reformed EOIR and USCIS Asylum Office, both staffed with true asylum experts!

Instead, the Biden Administration, after an “initial burst” of promising yet highly ineffective rhetoric (see, e.g., “reforms” of gender-based asylum), gave immigration, human rights, and the interconnected problem of racial justice, low priority. Instead of seeking and employing dynamic, progressive, problem-solving leaders, with new and creative ideas, they relied largely on “bureaucratic retreads” who showed little interest in or affinity for taking the bold, often courageous, actions necessary to address the festering humanitarian crisis at the border!

Too many of these individuals seemed to accept the false GOP nativist proposition that elimination or unduly restrictive applications of asylum law were the best way to “deter” unlawful entries, and that we didn’t want to “encourage” refugees from Latin America or the Caribbean by recognizing the legitimacy of their claims and/or running robust, realistically large “overseas” refugee programs for them.

Moving refugees and asylum seekers into an orderly, functioning, legal process at or away from the border would also allow CBP to focus resources on individuals who are not seeking legal refugee in the U.S. Because of the inaccurate and misleading statistics used to “count” border activity, as accurately described by Stuart in his full article, we actually have little idea how large a “cohort” of individual border arrivals legal asylum seekers represent.

“Mixing apples and oranges” certainly plays directly into the hands of GOP restrictionist/nativists who love to lump them all together under the dehumanizing and intentionally demeaning “false rubric” of “illegals.” There is nothing “illegal” about appearing at the U.S. border and asking for refuge under our domestic laws and international conventions to which we are party!

What is “illegal” is our Government suspending legal processing for asylum, and also, even for those chosen under largely arbitrary criteria for processing, delivering a badly flawed biased process that is neither fair nor timely. Also, mixing those merely seeking a chance to state their legal case for asylum with those seeking entry for other purposes certainly “dilutes” the enforcement resources and effectiveness of CBP in preventing “real” unlawful entries.

Instead, the Biden Administration settled into an inept “Miller Lite” posture of utilizing modified and supposedly “humanized” versions of Trump’s illegal policies. As pointed out by Stuart, the Biden Administration also failed miserably to anticipate and establish a Federally-led and funded program for humane resettlement of asylum seekers.

This played right into the hands of White Nationalist GOP pols like Abbott, DeSantis, Ducey, Paxton, Cruz, Cassidy, Vance, Biggs, McCarthy, Jordan, et.al. At the same time, in one of the dumbest moves in recent political history, they left Democratic leaders in locations victimized by the GOP “bussing stunts” in the lurch and without support, thereby driving an entirely unnecessary “wedge” and “stress point” into the “Democratic coalition.”

There might be no “easy and perfect” solution for managing refugee situations. Refugees and other types of “forced migrants’ have been with us since the beginning of human history. They will continue to exist long after the current crop of nativist politicos and “deterrence-only-focused” bureaucrats are gone.

Yet, with all this historical knowledge, the so-called “Western Democracies” failed miserably in protecting refugees from Hitler’s planned genocide in the years leading up to and including WWII. The 1951 UN Convention and later Protocol were supposedly “never again” responses to that deadly failure.

Yet, today, politicians and leaders who should know better seem determined to ignore the lessons of history and recreate the moral and humanitarian failures of the past. One can only hope that the NDPA and the “new generations” can get by the failures of today and treat refugees fairly, humanely, and in recognition of the substantial benefits that most bring to those nations fortunate enough to be “receiving” countries. The future of our world may depend on it!

🇺🇸 Due Process Forever!

PWS

01-31-23

🤮🤥 “DUH” OF THE DAY: “Billy the Bigot” Barr Is An Unethical, Right-Wing Hack Who Abused His Authority @ DOJ In Service Of Trump Over America! — Durham Investigation Was “Abusive, Partisan, and Unhinged!“

Barr Departs — Lowering The Barr by Randall Enos, Easton, CT
Republished By License

https://nymag.com/intelligencer/2023/01/the-durham-probe-was-barrs-witch-hunt.html

Johnathan Chait @ The Intelligencer:

There is an enduring pattern in American conservatism in which the right first develops a paranoid interpretation of the liberal Establishment, and then reverse engineers its own version of the monster it has imagined. Conservatives convinced themselves that the mainstream media and universities were mere propaganda organs, then created institutions like the Heritage Foundation and Fox News, warped reflections of their own overheated critique. The January 6 insurrection was, of course, in the mind of its participants, a “response” to the imagined vote-fraud conspiracy and its antifa/BLM shock troops.

John Durham’s investigation is a classic episode in this tradition. The American right first convinced itself that Robert Mueller and the deep state, using the cover of dispassionate professionalism, had launched a partisan witch hunt to smear Donald Trump. In response, it created a right-wing mirror image, as fervently partisan and unhinged as they believed their enemies to be.

The New York Times has a deeply reported narrative showing how Durham’s counter-investigation of the Russia probe, cooked up by William Barr at Donald Trump’s urging, was just as abusive, partisan, and unhinged as Trump’s defenders made Mueller out to be.

The purpose of special counsel is to wall off a politically sensitive investigation from the attorney general. But Durham, reports the Times, was working closely with Barr behind closed doors all along. The two Republicans dined and drank together, and came to share Barr’s Fox News–brained beliefs that Trump had been the victim of a conspiracy.

Rather than preventing Barr from meddling in a politicized investigation, this arrangement inverted that purpose and laundered Barr’s involvement through Durham’s putative independence. “At some point, some particularly ill-informed critic of the administration may try to paint Durham as a right-wing hack or Republican loyalist,” wrote National Review’s Jim Geraghty in a fawning profile, singling out the NAACP’s Sherrilyn Ifill for having the temerity to suggest Durham might have been compromised by serving Trump’s ends.

Durham and Barr kept failing to prove the deep-state conspiracy they imagined, but continued to press forward anyway. At one point they seized upon hacked Russian memos that intelligence analysts deemed obviously fake, instead treating them as a valuable intelligence trove, and tried to prove it out, even harassing one of the targets to obtain his emails (which contained nothing incriminating). It weirdly reflected the Trumpist accusation that Robert Mueller had been tricked into pursuing Russian disinformation.

As Durham kept failing to find support for the conspiracy he was pursuing, and which Barr kept floating in public, his deputies chafed at his obsession. Eventually, one of them resigned in protest when he brought charges against Michael Sussmann, a target of the right. As his former lieutenants expected, Durham’s case was defeated in court.

. . . .

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Read the complete article at the link.

Immigration advocates didn’t need a NY Times investigation to tell you that Barr was corrupt! Biased anti-immigrant, anti-asylum “AG precedents;” BIA “Appellate Judges” appointed for their unusually high asylum denial rates and known hostility to migrants and their attorneys; Immigration Judges appointed without expertise in immigration and human rights, overwhelmingly from the ranks of prosecutors; busting the IJ union (“NAIJ”) for speaking out against DOJ’s politicized mismanagement; issuing an EOIR “Fact Sheet” full of lies, misrepresentations, and myths; appointing politicized managers at EOIR without judicial or due process qualifications; taking ethically questionable litigating positions in Federal Court; the list of Barr’s abuses of authority on immigration and human rights goes on and on!

AG Merrick Garland has made a few ameliorative changes. Some of the worst precedents have been overruled; some unqualified political senior executives been removed or reassigned; over time, judicial selection has been shifted to a more balanced, merit-based system that has resulted in the appointment as Immigration Judges of some widely-recognized experts, with experience representing individuals, and a demonstrated commitment to due process for all; “numerical quotas” for IJs have been eliminated. (Curiously, however, Garland “honored” 17 “transition” Barr judicial selections made under badly flawed selection criteria!)

Yet, overall, EOIR remains largely the disaster zone that Barr left behind. Trump-era anti-asylum Appellate Judges continue to dominate the BIA; many Trump-era IJs still misapply basic immigration legal standards and operate “asylum free zones;” management is weak; training is inadequate; dockets are out of control; respondents and their attorneys are treated unprofessionally; quality control is largely nonexistent; wildly inconsistent “refugee roulette” asylum adjudication remains; an enforcement-skewed culture of “any reason to deny and deport” continues to infect EOIR at all levels; “numbers” are emphasized over quality and fairness; and the DOJ’s OIL often defends indefensible EOIR decisions in Federal Court on the apparent rationale that “it’s only migrants’ lives at stake, so who cares!”

Unhappily, the Biden Administration has barely “scratched the surface” of the badly needed and long overdue common sense reforms needed at EOIR and the DOJ to put the Sessions/Barr abuses behind us and move forward! Barr was a bad AG; but, his ghost continues to haunt the DOJ and those seeking equal justice for all!

🇺🇸 Due Process Forever!

PWS

01-30-23

⏳HISTORICAL PERSPECTIVE FROM YAEL SCHACHER @ REFUGEES INTERNATIONAL: Biden Administration’s Bias Against Refugees Fleeing The Northern Triangle Is “Baked Into” The Problematic History Of U.S. Refugee & Asylum Programs!☹️

https://www.washingtonpost.com/made-by-history/2023/01/23/bidens-announced-asylum-transit-ban-undermines-access-life-saving-protection/

Yael Schacher writes in WashPost:

On Jan. 5, the Biden administration announced that it planned to issue a regulation “to provide that individuals who circumvent available, established pathways to lawful migration, and also fail to seek protection in a country through which they traveled on their way to the United States, will be subject to a rebuttable presumption of asylum ineligibility in the United States.”

These two reasons to bar people from seeking asylum — for transiting through other countries and for crossing the U.S. border without authorization — have different rationales and historical origins. But both have been marshaled against Central Americans since the late 1980s — severely undermining access to asylum. Doing so endangers people’s lives and breaks U.S. and international law. History reveals the purpose and perils of such bars.

No such bars stopped earlier waves of refugees seeking protection in the United States, especially those coming from Europe. When people who fled the Bolshevik Revolution applied to be considered “bona fide refugees” under a 1934 U.S. law, it did not matter that they had spent several years during the previous decade in Germany, France, China, Argentina, Cuba, Mexico or Canada and then crossed a land border without getting inspected by a U.S. official — as many did — beginning in the mid-1920s. They told immigration officials that conditions in those countries made it hard for them to live and it would be years before they could qualify for an immigration visa to the United States. So, they made their way to the United States on their own — and their mode of entry, and even their use of fraudulent travel documents, did not preclude them from adjusting to permanent status.

. . . .

The Biden administration insists its regulation will be different because it has opened up new legal pathways from transit countries and it will give asylum seekers a chance to prove why they didn’t use one of the legal pathways available to them. But migrants from Guatemala and Honduras lack parole programs that are newly available only to Venezuelans, Nicaraguans, Cubans and Haitians who have passports and sponsors in the United States. Further, parole, discretionary temporary permission to enter and stay in the United States with no path to citizenship, is a far cry from permanent refugee status. Fifteen thousand refugee resettlement slots this year are for all of the Caribbean and Latin America, where over 7 million Venezuelans are displaced. It is hard not to see this rule as an effort to limit access to asylum in the United States specifically for people from northern Central America and to treat today’s forcibly displaced people from the Americas unlike people seeking refuge from elsewhere in the past.

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Read Yael’s complete article at the link.

Many of us had believed that the Biden Administration would get beyond the biases, manipulations of law, and implicit or explicit racism of the past to achieve the orderly, legal, timely admission of refugees, including those from Latin America, from abroad and at the border. Unfortunately and outrageously, they haven’t even tried!

Instead, they have turned human rights and border policies into an unholy, largely incomprehensible and arbitrary, mishmash of many of the worst, most ineffective, and invidiously biased policies of the past.

🇺🇸 Due Process Forever!

PWS

01-25-23

🤮☠️ THE COLLATERAL DAMAGE FROM GARLAND’S “AIMLESS DOCKET RESHUFFLING” (“ADR”) A/K/A “PLANNED CHAOS” IS DEVASTATING THE LEGAL PROFESSION! 🏴‍☠️ — Jason “The Asylumist” Dzubow Reports!

Immigration Lawyers Fleeing — Immigration lawyers – seen here fleeing the profession.

https://www.asylumist.com/2023/01/18/court-chaos-creates-collateral-consequences/

IMMIGRATION COURT

Court Chaos Creates Collateral Consequences

January 18, 2023

Immigration Courts across the U.S. have been randomly rescheduling and advancing cases without regard to attorney availability or whether we have the capacity to complete our cases. The very predictable result of this fiasco is that lawyers are stressed and overworked, our ability to adequately prepare cases has been reduced, and–worst of all–asylum seekers are being deprived of their right to a fair hearing. Besides these obvious consequences, the policy of reshuffling court cases is having other insidious effects that are less visible, but no less damaging. Here, I want to talk about some of the ongoing collateral damage caused by EOIR’s decision to toss aside due process of law in favor of reducing the Immigration Court backlog.

As an initial matter, it’s important to acknowledge that the Immigration Court backlog is huge. There are currently more than 2 million pending cases, which is more than at any time in the history of the Immigration Court system. To address this situation, EOIR (the Executive Office for Immigration Review – the office that oversees our nation’s Immigration Courts) has been working with DHS (the prosecutor) to dismiss low-priority cases, where the non-citizen does not have criminal issues or pose a national security threat. Also, the U.S. government has been doing its best to turn away asylum seekers at the Southern border, which has perhaps slowed the growth of the backlog, but has also (probably) violated our obligations under U.S. and international law.

In addition, EOIR has been hiring new Immigration Judges (“IJs”) at a break neck pace. In the past few years, there has been a dramatic increase in the number of IJs nationwide, though some parts of the country have received more judges than others. In those localities with lots of new IJs, EOIR has been advancing thousands of cases. The goal is to complete cases and reduce the backlog. Why EOIR has failed to coordinate its new schedule with stakeholders, such as respondents and immigration attorneys, I do not know.

What I do know is that EOIR’s efforts have created great hardships for attorneys and respondents (respondents are the non-citizens in Immigration Court). Also, I expect that this whole rescheduling debacle will have long-term effects on the Immigration Courts, as well as on the immigration bar.

The most obvious effect is that lawyers and respondents simply do not have enough time to properly prepare their cases. When a hearing was set for 2025 and then suddenly advanced to a date a few months in the future, it may not be enough time to gather evidence and prepare the case. Also, this is not occurring in a vacuum. Lawyers (like me) are seeing dozens of cases advanced without warning, and so we have to manage all of those, plus our regular case load. So the most immediate consequence of EOIR’s policy is that asylum seekers and other respondents often do not have an opportunity to present their best case.

Perhaps less obviously, lawyers are being forced to turn work away. We can only competently handle so many matters, and when we are being assaulted day-by-day with newly rescheduled cases, we cannot predict our ability to take on a new case. In my office, we have been saying “no” more and more frequently to potential clients. Of course, this also affects existing clients who need additional work. Want to expedite your asylum case? Need a travel document to see a sick relative? I can’t give you a time frame for when we can complete the work, because I do not know what EOIR will throw at me tomorrow.

One option for lawyers is to raise prices. We have not yet done that in my office, but it is under consideration. What we have done is increase the amount of the down payment we require. Why? Because as soon as we enter our name as the lawyer, we take on certain obligations. And since cases now often move very quickly, we need to be sure we get paid. If not, we go out of business. The problem is that many people cannot afford a large down payment or cannot pay the total fee over a shortened (and unpredictable) period of time. The result is that fewer non-citizens will be able to hire lawyers.

Well, there is one caveat–crummy lawyers will continue to take more and more cases, rake in more and more money, and do very little to help their clients. Such lawyers are not concerned about the quality of their work or doing a good job for their clients. They simply want to make money. EOIR’s policy will certainly benefit them, as responsible attorneys will be forced to turn away business, those without scruples will be waiting to take up the slack.

Finally, since EOIR is increasing attorney stress and burnout to untenable levels, I expect we will see lawyers start to leave the profession. I have talked to many colleagues who are ready to go. Some are suffering physical and mental health difficulties due to the impossible work load. Most immigration lawyers are very committed to their clients and have a sense of mission, but it is extremely difficult to work in an environment where you cannot control your own schedule, you cannot do your best for your clients, you cannot fulfill your obligations to your family and friends, and where you are regularly abused and treated with contempt. Long before EOIR started re-arranging our schedules, burnout among immigration lawyers was a serious problem. Today, that problem is exponentially worse, thanks to EOIR’s utter disrespect for the immigration bar. I have little doubt that the long term effect will be to drive good attorneys away from the profession.

For me, the saddest part of this whole mess is that it did not have to be this way. EOIR could have worked with attorneys to advance cases in an orderly manner and to ensure that respondents and their lawyers were protected. But that is not what happened. Instead, EOIR has betrayed its stated mission, “to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws.” Respondents, their attorneys, and the immigration system are all worse off because of it.

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“For me, the saddest part of this whole mess is that it did not have to be this way.” Amen, Jason! Me too! And, I think I speak for most, if not all, of my esteemed colleagues on the Round Table of Former Immigration Judges and BIA Members.”⚔️🛡

In addition to betraying its mission “to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws,” EOIR has trashed its noble once-vision: “Through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all!”

The use of the word “uniformity” in EOIR’s “mission” is an absurdity given the “range” of asylum denials fostered and tolerated by Garland’s dysfunctional system: 0-100%! It’s also understandable, if unforgivable, that EOIR no longer features words like “due process,” “fundamental fairness,” “teamwork,” and “innovation” prominently on its website!

A Dem AG is attacking our American justice system and the legal profession at the “retail level” and causing real, perhaps “irreparable,” damage! What’s wrong with this picture? Everything! What are we going to do about it? Or, more appropriately, what are YOU going to do about it, as my time on the stage, and that of my contemporaries, is winding down?

🇺🇸Due Process Forever!

PWS

01-24-23

🤯 DEMS’ IMMIGRATION & RACIAL JUSTICE FAILURES BEGIN WITH REFUSAL TO BRING PRACTICAL EXPERTISE, INDEPENDENT PROFESSIONAL ADMINISTRATION, & MORE REAL JUDGES COMMITTED TO DUE PROCESS, HIGHEST QUALITY, & RULE OF LAW TO EOIR! — “[A] never-ending crisis at the border can be exploited by one party, as the other expands the needlessly punitive immigration practices of the previous administration.“

https://prospect.org/justice/2023-01-19-immigration-case-backlog-title-42/

JAROD FACUNDO in The American Prospect:

. . . .

All of these particularities matter, because once all available options have been exhausted, cases generally end up inside an immigration court before an immigration judge. The administrative snarls that predate a case before it arrives in immigration court are thus a result of policy from the top, for better or worse.

On paper, courts are supposed to be independent bodies. They are supposed to be immune from the political agendas of other government operatives or serve as independent mediators that can rectify previous errors.

But immigration courts are not. As a part of the Justice Department, at the end of the day, they work under the attorney general. While other courts function under a de jure practice of independence, immigration courts are held to the same standard despite not possessing the same protections that allow other judges to carry out their basic job functions. This creates an impossible work environment for immigration judges to fairly adjudicate every case with the attention it deserves. Instead, their measurements of success are based on accomplishing the president’s goals, which are translated into quotas for immigration courts. For example, Biden administration officials touted removing 1.3 million migrants last year.

As the Prospect has previously reported, immigration judges have long pointed out the tenuous environment they must work in.

But later this month, the Federal Labor Relations Authority (FLRA) will be hearing from the National Association of Immigration Judges (NAIJ) over whether or not their union will be reinstated. The FLRA will now have a majority of Biden appointees.

A dysfunctional immigration system can only start to work with independent courts. But that change can only happen through congressional action. In the meantime, a never-ending crisis at the border can be exploited by one party, as the other expands the needlessly punitive immigration practices of the previous administration.

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Many thanks to prodigious immigration commentator Nolan Rappaport for passing this along to me.

There is consensus among experts that an independent Article I Immigration Court is urgently needed and long overdue. There is also a consensus that the chance of achieving this critical legislative change with a GOP-controlled House is zero. At the same time, we must remember that Dems didn’t exactly give any priority to this essential and far-reaching reform when they had “unified control” over the political branches.

There is also consensus that in the absence of Article I there are things that Garland and the Biden Administration could and should have done administratively that would have drastically improved the due process, expertise, quality, efficiency, “customer service,” and professionalism of EOIR.

Gee whiz, a Harvard Law student figured it out! They have constructive suggestions for administrative reforms to change culture, improve training, place docket control in the hands of judges not politicos and bureaucrats, increase independence, improve quality, and insulate IJs from the political whims and enforcement agendas of each Administration. See https://wp.me/p8eeJm-8hE?

But, a Harvard Law grad, long-time Federal Judge, and Supremes’ nominee, and his band of supposedly smart and high-powered political lieutenants couldn’t or wouldn’t get it done for a Dem Administration? Gimmie a break!

A Dem Administration that was supposed to get us beyond the cruelty, White Nationalism, xenophobia, and “malicious incompetence” of the Trump Administration falls flat on its face on a critical and achievable part of immigration reform and racial justice in America! Go figure!

Meanwhile, the cries of pain keep coming from those subjected to Garland’s dystopian “courts!”

Had an “interesting” IH today with this IJ. [IJ] denied my motion to continue the case by email the evening before the 8:30 am hearing, even though I had four IHs scheduled in the same time slot and had filed a motion to continue a month before the hearing. [IJ] refused to grant me a few minutes to speak with OPLA counsel before the hearing to narrow issues, saying that discussion should have already taken place. [IJ] spent an inordinate amount of time on housekeeping issues. [IJ] read a list of “rules.” [IJ] would insist that counsel stand when they spoke. [IJ] would routinely deny motions for webex hearings. [IJ] went through the biographical information excruciatingly slowly, including having the respondent spell the names of all the riders, provide their birth dates, etc.
- It was a case where DHS had stipulated to 42b and the only issue would’ve been discretion but the IJ didn’t care. [IJ] told me to let everyone know that [IJ] reads each and every single document submitted in . . . court from back to front and . . . has a lot of questions . . . . [IJ] went on to conduct a full hearing, chastised DHS for stipulating, made a big deal of every little thing, asked irrelevant questions about medicaid forms that [client] may have filled for her children (not included as part of evidence), insinuated that she committed medicaid fraud, and made the ACC change position on each and every issue.
[The IJ] denied the asylum application of a young gay man from El Salvador. This is a first for me, in my 20+ years of asylum practice. We’ve never lost such a case that I can recall.
- The facts are pretty typical – the kid lived a life of humiliation and abuse in El Salvador due to his sexual orientation; tried to commit suicide several times; and ultimately left the country when the Mara 18 tried to get him to deliver marijuana for them. Arguably, not a strong case for past persecution, but such cases typically prevail where a judge fairly evaluates a claim of well-founded fear of future persecution and considers the country condition reports and articles about the horrendous human rights abuses against the LGBT community in El Salvador. This didn’t fly with IJ. [IJ] simply said “there is no meaningful evidence in the record to demonstrate that the Respondent would experience harm amounting to persecution in El Salvador” and then went on to say that the client would likely experience more bullying and discrimination, but that doesn’t mean it would be persecution. [IJ] did not mention any country conditions report or article from the record to support his ruling.
- [T]he DHS attorney called me directly after the hearing to empathize and tell me that it’s well-known even on their side that this judge is a piece of work and it’s always a good idea to take PD if offered.
- [T]his judge is a menace. I don’t know what to do to protect my clients from [IJ] other than prepare strong BIA appeals.
This is the third email I have received to schedule MORE cases. No one will tell me what the goal is. I’ve put them on notice of the health issues this is/has been causing me.
- Please tell the higher ups that this practice of overscheduling the private bar is taking a serious toll on practitioners’ health. Medical documentation is below and attached. I’m really not sure why the court has felt the need to overschedule practitioners to this level, but it is really taking a serious toll on everyone. Can someone please shed light on this urgent need to overwhelm the limited number of defense attorneys we have in the area?
Another outstanding Immigration Court practitioner told me that they had left courtroom practice and taken a “research and writing” position because the EOIR courtroom “experience” under Garland was so dehumanizing, demoralizing, stressful, and life consuming!

A different attorney called me with concerns that an IJ’s “over the top” abuse of pro bono counsel would discourage others from taking cases in Immigration Court.

IJ’s wasting time; discouraging negation and stipulation by parties; taking over hearings; abusing continuance discretion; failing to abide by Cardoza & Mogharrabi; showing bias; producing wildly inconsistent anti-immigrant results; showing thin knowledge of law; rudely treating counsel and clients; over-scheduling; abusing power; endangering the health of those appearing before them; driving practitioners to leave the EOIR courtrooms; discouraging pro bono!

Everything that is NOT what a fair, independent, court of law should be is present and allowed, perhaps even encouraged, in Garland’s broken EOIR! Why is this type of grotesque mismanagement, bad judging, unprofessional conduct, and disregard of fundamental due process “business as usual” under a Dem Administration?

This “star chamber” system needs new, expert, progressive, due-process-focused, free from political hackery and inane gimmicks, “kick-ass” management! Garland isn’t getting the job done!

Meanwhile, the Biden Administration’s incredibly short-sighted and legally flawed “Miller Lite” asylum and border policies, of which Garland’s broken EOIR and unwillingness to stand up for human rights are a critical part, have “gone over like a lead balloon” with younger progressive Dems in Congress. See, e.g., https://link.vanityfair.com/click/30312106.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.

These younger progressives are exactly the “core support” that Dems will need to win future elections! How does “dissing” them with inept leadership and ineffective nativist-derived immigration policies help the cause?

Honestly, what a mess! Garland’s dystopian EOIR is the Democratic Party’s shame!

🇺🇸 Due Process Forever!

PWS

02-22-23

⚖️”CONVENTIONAL WISDOM” SAYS YOU CAN’T WIN IMMIGRATION CASES IN THE 5TH CIR. — NDPA SUPERLITIGATOR RAED GONZALEZ SAYS “POPPYCOCK!” — He Buries Garland’s Backlog-Building Scofflaw BIA Again On Pereira Issue! — Will They Ever Learn? — Don’t Count On It!

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/unpub-ca5-equitable-tolling-victory-lara-canales-v-garland

Dan Kowalski reports for LexisNexis Immigration Community:

Daniel M. Kowalski

19 Jan 2023

equitable tolling

Unpub. CA5 Equitable Tolling Victory: Lara Canales v. Garland

Lara Canales v. Garland

“This appeal arises from the Board of Immigration Appeals’ (BIA) denial of Karla Yadira Lara Canales’s motion to reopen her removal proceedings. The BIA denied her motion to reopen as untimely, leaving the order of removal in place. We now VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND so that the BIA may properly consider whether Lara Canales is entitled to equitable tolling. … [E]ach of the BIA’s bases for determining that Lara Canales had not accrued the continuous physical presence required for eligibility of cancellation of removal was legal error. We now hold that Lara Canales is statutorily eligible to seek cancellation of removal. However, this holding does not automatically entitle Lara Canales to have her motion to reopen heard on the merits. The BIA must, upon remand, engage in the fact-intensive determination of whether the 90-day deadline on motions to reopen should be tolled because of the extraordinary circumstance presented by Pereira. If the BIA determines Lara Canales satisfies the requirements for equitable tolling, she may then present her motion for a determination on its merits. We therefore VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND this case for further consideration not inconsistent with this opinion.”

[Hats off once again to superlitigator Raed Gonzalez!]

Raed Gonzalez ESQUIRE
Chairman, Gonzalez Olivieri LLP
Houston, TX
PHOTO: best lawyers.com

*********************

Thanks Raed for continuing to lead the fight for justice in “America’s worst ‘court’ system” in America’s most right-wing Circuit!

THIS “any reason to deny mentality” at EOIR, still being promoted by Garland’s BIA, combined with incredibly inept and unprofessional “administration” of EOIR by DOJ, is why the Immigration Court is broken and being crushed by unending backlogs, daily chaos, and a travesties of justice and sound government!

The Biden Administration pretends like the problem doesn’t exist and/or isn’t important enough to fix. But, I can assure you that they are WRONG! “Dead wrong” in some cases!

In addition to the public manifestations of dysfunction and unprofessionalism like this case, I get regular e-mails from NDPA members relating their own EOIR horror stories and venting their frustrations with the arrogant “above the fray/what me worry about humanity and those defending it” attitude of Garland and the rest of the Biden Administration responsible for the ongoing EOIR catastrophe!

I strongly doubt that Garland, Monaco, Gupta, Prelogar, and the rest of the DOJ “clueless crew” responsible for this indelible blot on American justice would last 60 days if required to practice exclusively before EOIR under the unfathomably horrible, due-process-denying conditions they have promoted and enabled over their past two years of horrible legal “leadership!” As aptly stated by one practitioner who recently contacted me:

“Things in Immigration Court will never be the same, but I at least expected attention to due process. Nope, IJ’s are more interested in getting the cases done.”

How is this appropriate conduct from a Dem Administration that claims to value human lives, racial justice, and the rule of law, but whose actions at EOIR (and elsewhere in immigration and human rights) say the exact opposite? Poorly functioning as EOIR was when I retired in 2016, the “anecdotal consensus” from practitioners seems to be that it’s measurably worse now under Garland’s inept leadership! “Come on man,” this just isn’t right!

After all this time (17 years since the BIA’s supposedly “final” order), this case is still not complete! It’s back at the BIA for yet another chance for them to deny on specious, legally incorrect grounds. One possibility is to misapply the “equitable tolling” concept mentioned by the 5th Circuit. The BIA has a long, disgraceful record of resisting and mis-applying equitable tolling.

Or, perhaps they will attempt to invoke their recent precedent in Matter of Chen, 28 I&N Dec. 676 (BIA 2023) https://www.justice.gov/eoir/page/file/1561876/download to deny reopening for “failing to make out a prima facie case for relief on the merits.”

Chen is a case where the the respondent moved to reopen to apply for NLP cancellation having attained the required 10 years of physical presence by reason of the BIA’s two wrong-headed precedents overruled by the Supremes in Pereira v. Sessions and Niz-Chavez v. Garland. Having twice screwed up in a way that created tens of thousands of potential remands and reopenings, someone not familiar with the BIA might have expected them to set forth clear, practical, generous criteria that would encourage IJ’s to consistently reopen cases where the respondent now had the qualifying time and relative(s) in light of the problems caused by the BIA itself. After all, that’s basically the direction in the BIA’s long-standing precedent Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996) (reopening where the record “indicate[s] a reasonable likelihood of success on the merits, so as to make it worthwhile to develop the issues at a hearing”). https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjWzY36pdn8AhVgF1kFHTcxChEQFnoECBkQAQ&url=https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3281.pdf&usg=AOvVaw2Ntzlp4MuxfupmjaDIn7i6

Since “exceptional and extremely unusual hardship” is inherently a fact-bound issue requiring a hearing to develop those facts, one might expect most cases to be routinely reopened.

But, the BIA took a different tack in Chen. While acknowledging that the hardship asserted by the respondent fell within the zone of those “recognized” by the BIA, they found “she has not identified and documented heightened hardship beyond that which would normally be expected to occur in such circumstances.”

While the BIA claimed to be “following” Matter of L-O-G-, they actually appear to have violated the teaching of that case that: “In considering a motion to reopen, the Board should not prejudge the merits of a case before the [respondent] has had an opportunity to prove the case.” (21 I&N Dec. at 419). That should particularly be true when the BIA itself has had a major role in creating the situation where reopening is sought.

By providing only a negative precedent (they didn’t even bother to “bookend” this with a precedential example of a grantable motion) to a system already suffering from a “culture of denial,” the BIA aggravated an long-festering problem. One can expect many IJ’s to view Chen as an “invitation to deny” the many Pereira/Niz Chavez motions to reopen in the offing for specious reasons or indeed for “any reason at all.” I expect talented NDPA warriors like Raed to make mincemeat out of the BIA’s wrong-headed attempt to minimize the “Pereira-induced damage” they have generated.

Like most of the misguided efforts of the 21st Century BIA, this attempt to cut corners, summarily deny, and NOT provide full due process and real hearings is likely to take more time and waste more resources than simply giving respondents the fair merits hearings to which they are legally entitled in the first place. But, that’s exactly what this Dem Administration has wrought at EOIR. “More of the same, instead of the promised change!”

🇺🇸 Due Process Forever!

PWS

O1-21-23

🗽⚖️🇺🇸🌟🏆 AYUDA’S PAULA FITZGERALD GETS GEORGETOWN U’s “JOHN THOMPSON, JR. I HAVE A DREAM AWARD” IN STIRRING KENNEDY CENTER MLK CELEBRATION FEATURING LESLIE ODOM, JR. (“HAMILTON”) & LET FREEDOM RING CHOIR! — Watch It Here On YouTube!

“The power of AYUDA is hope!”

— Paula Fitzgerald, Executive Director, AYUDA

PROGRAM NOTES ADAPTED FROM http://NEWORKSPRODUCTIONS.COM:

Nolan Williams, Jr.Composer & Director, Let Freedom Ring Choir PHOTO: NEWorks.com — Nolan Williams, Jr.
Composer & Director, Let Freedom Ring Choir
PHOTO: NEWorks.com

The Let Freedom Ring Celebration is an annual celebration of the legacy of Dr. Martin Luther King, Jr., jointly presented by The John F. Kennedy Center for the Performing Arts and Georgetown University. Following a two-year hiatus prompted by the COVID pandemic, ‘Let Freedom Ring’ returns this weekend to the Kennedy Center Concert Hall with a stellar program headlined by Tony and Grammy winner Leslie Odom, Jr. and music produced by NEWorks Productions CEO, Nolan Williams, Jr.

The program will feature Odom performing a range of selections from the American songbook, Williams leading the Let Freedom Ring Celebration Choir and NEWorks Band, and the presentation of the 21st annual John Thompson Jr. Legacy of a Dream Award to Paula Fitzgerald, executive director of Ayuda.

Other program participants include: Naomi Eluojierior, Georgetown University student; Marc Bamuthi Joseph, VP & Artistic Director of Social Impact, The Kennedy Center; [Cheri Carter, Vice President,] Boeing (LFR Title Sponsor); and John J. DeGioia, President, Georgetown University.

Williams will present two original works as part of the program, performed by the Let Freedom Ring Celebration Choir and Band, Georgetown University student poets Cameren Evans, Isaiah Hodges, and Lucy Lawlor, and community soloists Roy Patten, Jr. and Laura Van Duzer.

The program [opened] with the world premiere of Williams’ “We’re Marching On!,” a work commissioned by Georgetown University. The piece draws inspiration from a 1965 speech by Dr. Martin Luther King, Jr. and features spoken word delivered by Evans, Hodges and Lawlor.

Williams’ second musical contribution is the social-justice-themed ballad, “We are the ones to heal our land.” Commissioned last year by Choral Arts Society and Washington Performing Arts, this work has been adapted for this occasion and will feature Patten and Van Duzer.

(Scroll below to access Williams’s song lyrics.)

The program [closed] with a stirring rendition of Dick Holler’s 1968 classic “Abraham, Martin and John.” The song pays tribute to the memory of Abraham Lincoln, Martin Luther King, Jr., John F. Kennedy, and Robert F. Kennedy, all American icons of social change who were tragically assassinated.

[Odom then brought the audience to its feet one final time with a totally awesome and inspiring encore rendition of “Ave Maria,” to piano accompaniment, in recognition of the “Christ energy” of Dr. King: A characteristic that, to paraphrase Odom’s words, “transcends individual religious beliefs or non-beliefs!”]

[I loved that in his musical selections Odom took pains to showcase the talents of, and share the spotlight with, each member of his amazing band. That shows just the type of teamwork, awareness, humility, and appreciation of those who made and make you what your are that Dr. King preached. It also reminded me of my experiences with Paula, AYUDA, and Georgetown Law (which I’ve also found to be a great team effort.)]

[Here’s an excerpt from the lyrics of Williams’s“We’re Marching On:”]

Georgetown University Student Poets Cameren Evans, Lucy Lawlor, and Isiah Hodges, perform “We Keep Marching On” at the Let Freedom Ring Concert, Kennedy Center, Jan. 16, 2023
PHOTO: YouTube

“We’re Marching On!”

Music and Lyrics by Nolan Williams, Jr.

Spoken Word by Lucy Lawlor, Cameren Evans, Nolan Williams, Jr. & Isaiah Hodges

Commissioned by Georgetown University for Let Freedom Ring 2023.

Copyright secured, NEW-J Publishing. All rights reserved.

PROLOGUE

Sometimes I find myself running,

my feet burnt and charred from the fire behind me,

my memories all caught up in coal combustion.

All I have is a body full of smoke.

I remember learning my red, white, and blues,

my Christopher Columbus sailed the ocean blue

inside an underfunded public school.

A gleeful American history lesson

that always came with a fog.

[During the concert, the stage was enveloped in machine-generated (I assume) smoke and fog to emphasize (I assume) the often ambiguous position and perspective of African Americans and other minorities in relation to the “standard — often whitewashed — version” of the “American Dream.” Does that “Dream” really look the same if your family members were denied educational, political, and economic rights, or the entire “pursuit of life, liberty, and happiness” because of their skin color? I doubt it.]

Sometimes the American dream sounds a lot like pitchforks and screams.

Haunting screams from Rosewood, Ocoee, Ponce,

all forgotten pieces of our history.

Reminding us there’s still work left to do—

that’s why we keep marching.

THE HOOK

We’re marching on

‘cause we must keep marching on.

We’re marching on

‘cause the truth is marching on.

. . . .

BRIDGE

Opposition forces

sense their voice is

quelled the more we persevere.

That’s why their raging more

And waging war

on this the last frontier

of their inhumanity,

superiority,

inequality.

That’s why we keep marchin’

. . . .

[And, here are excerpts from Williams’s “We are the ones to heal our land:”:]

“We are the ones to heal our land.”

Music and Lyrics by Nolan Williams, Jr.

Commissioned by Choral Arts Society and Washington Performing Arts.

Adapted for Let Freedom Ring 2023.

Copyright secured, NEW-J Publishing. All rights reserved.

ABOUT THE SONG…

“For most of my life, I have been deeply inspired by the scriptural verse, 2 Chronicles 7:14. If the text does not readily come to mind, here it is for your immediate reference:

If my people, who are called by my name, will humble themselves and pray and seek my face and turn from their wicked ways, then I will hear from heaven, and I will forgive their sin and will heal their land. (King James Version)

These words have long embodied for me the profound hope that God will eventually make right the many wrongs that trouble our land.

In recent years, however, I have found myself challenged by the application of this verse. Too often, it is interpreted in a way that absolves us of the responsibility of being active agents of our own healing. Too often, it justifies a passive process of waiting on God (above) to move as if we have no power within to bring about the change we seek.

With this new song, I offer a reimagining of the 2 Chronicles text to provoke and awaken our consciousness and to call us as a community to renewed action. And I do so with verses that explore four forms of justice disparities: earth, social, environmental, and economic.

As you read these lyrics and listen to the world premiere performance of this song, meditate deeply upon the meaning and application of these words.”

-Nolan Williams, Jr.

Community soloists Roy Patten, Jr. and Laura Van Duzer belt out a heartfelt version of “We are the ones to heal our land” at the Let Freedom Ring concert at the Kennedy Center, Jan. 16, 2023.
PHOTO: YouTube

. . . .

VERSE 3

The haves get more while the rest of us survive,

doing our best to make ends meet.

And chances to advance are not the same

for the lost, the least, and all those in between.

When will the just cry, “Enough?”

When will the righteous more demand?

At such a time as this,

We need the brave to take a stand.

REFRAIN

So, we pray to us,

call ourselves by name,

humbly asking if we’ve had enough of our own pain.

Here, now, face to face,

will we turn from our own wicked ways?

Hear us now, we are the ones to heal our land.

BRIDGE

We’ve no right to pray to God then wait with no resolve

to accept the charge we have to act and get involved,

knowing God is calling us to right the wrong we’ve caused,

knowing God is calling us to right the wrong we’ve caused!

. . . .

VAMP

If not us, who?

If not now, when?

Calling me, you:

It’s time to heal our land.

It’s time to heal our land.

John Thompson
1941 – 2020
Hall of Fame Basketball Coach, Broadcaster, Mentor
Photo from Wikipedia/Sports Illustrated

Watch the video of the full performance and the award presentation to Paula by Georgetown University President John G. DeGioia here. It’s a wonderful award to a terrific person and true American hero who embodies the values and determination of Dr. Martin Luther King, Jr., and John Thompson, Jr., to fight to finally make equal justice in America a reality and to make our world a better place!

Former Georgetown and Princeton Head Basketball Coach John Thompson III and the Thompson Family attended and were recognized for their continuing contributions to social justice in America and for making this great event possible. Cathy and I were honored and thrilled to be in the audience.

I was especially moved by Paula’s highlighting the successful efforts of AYUDA and other community groups to welcome and care for migrants to DC who were bussed here as part of a nativist political stunt by some governors. Certainly, it illustrates who “gets” Dr. King’s spirit, dreams, and messages of hope and who is arrogantly, and cynically, paying his memory and values “lip service,” at best!

The “video short” on the social justice impact of John Thompson & Paula (including my “Paula anecdote”) begins at 42:20:

https://youtu.be/Ru8aww7Gxag

Leslie Odom, Jr.
“Aaron Burr in Hamilton”
PHOTO: Pete Souza, Official White House Photo, July 2015, Public Realm

🇺🇸Congrats, Paula, my friend, and Due Process Forever!

PWS

01-17-23

⚖️🗽NDPA NEWS: VISITING PROF KRISTINA CAMPBELL 🦸🏼‍♀️ ESTABLISHES REFUGEE CLINIC @ U. OF UTAH’S S.J. QUINNEY LAW! — Training & Inspiring Tomorrow’s NDPA Superstars! 🌟😎

Kristina reports:

I just wanted to share with you that I launched a new Refugee Law Clinic at the University of Utah this semester! I am a visiting professor here & my students this semester are working with a Ukrainian family, as well as UACs from Afghanistan and Latin America. You can read more about the clinic here:

https://sjquinney.utah.edu/experiential-learning/clinics/

I also attached some photos of the clinic space at the law school:

Refugee Clinic @ S.J. Quinney
PHOTO: K. Campbell

**********************

Kristina and her UDC Clinic students were “regulars” at the “Legacy” Arlington Immigration Court during my tenure. Since retiring, I have had the pleasure of being a guest lecturer, along with my friend Judge Dorothy Harbeck, at clinic classes taught by Kristina and her amazing colleague, Professor Lindsay Harris. (Lindsay was a guest lecturer in my Refugee Law & Policy class @ Georgetown Law during her time as a CALS Asylum Clinic fellow.)

Thanks for the report Kristina. Those are lucky students and clients to have you working for and with them! And, my gratitude and admiration for all you have done and continue to accomplish for justice in America. Scholar, author, advocate, creative thinker, educator, administrator, organizer, inspiring role model, innovator: You “check all the boxes,” Kristina!

Your students are so fortunate to have you for a teacher and inspiring example of all that’s best in American law!

🇺🇸 Due Process Forever!

PWS

01-15-23

⚠️☠️🤡🤯👎🏼 “CINOs” (“Courts In Name Only”) — Harvard Law Review Takes On Garland’s Dystopian Immigration “Courts!” — “This Note cuts through that noise to provide a list of reforms that are simpler and less controversial [than Article I], yet still impactful — reforms that the sitting President could implement immediately.”

Alfred E. Neumann — Apparently, due process, fundamental fairness, and racial justice for all persons in the U.S., even those who happen to be non-citizens, weren’t part of A.G. Merrick Garland’s Harvard Law education.
PHOTO: Wikipedia Commons

From Dean Kevin Johnson @ ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2023/01/courts-in-name-only-repairing-americas-immigration-adjudication-system-by-the-harvard-law-review.html

Wednesday, January 11, 2023

Courts in Name Only: Repairing America’s Immigration Adjudication System

By the Harvard Law Review

By Immigration Prof

Share

The esteemed Harvard Law Review does not publish much immigration scholarship. A student note on the immigration court system may be of interest to blog readers. The system long has been criticized and, last year, a bill was introduced in Congress that would have brought reform.

Courts in Name Only: Repairing America’s Immigration Adjudication System
By the Harvard Law Review
Noncitizens in the United States face innumerable obstacles, many of which have now become well known. But even the supposedly neutral court system in which noncitizens’ cases are adjudicated currently functions as an executive tool for removal. This Note argues that the current structure of the immigration adjudication system — and the resulting executive control over it — subjects Immigration Judges to a variety of conditions that, taken together, bias the entire system towards removal. It then surveys existing proposals for structural reform and proposes numerous possible intermediate reforms.

KJ

**********************

Key recommendation from HLR article:

While waiting for Congress to act, however, the executive branch has the authority to implement several crucial reforms that would allow for noncitizens to have their cases heard in fairer proceedings overseen by IJs with true, independent adjudicatory power.

Good News for Harvard Law: Some bright, unidentified, Harvard Law students can cut through the BS and clearly state achievable reforms that could and should have been implemented by the Biden Administration without legislation.

Bad News for Harvard Law: Prominent graduate and Law Review “alum” AG Merrick Garland (‘77), once a step away from a seat on the Supremes, doesn’t “get” it and, in fact, his poor leadership and mis-management are key parts of the problems at EOIR that threaten the stability and credibility of the entire U.S. justice system.

Note to HLR: Follow your own advice to “cut through the noise” and reform yourself. Lose the “historical BS,” move into the 21st century, show some intellectual integrity, and set a better example by clearly identifying and crediting the authorship of this and other student articles, whether by individual(s) or a team. See, e,g., Authorship: Giving Credit Where It’s Due, https://www.apa.org/pubs/journals/resources/publishing-tips/giving-credit

It’s not “rocket science!” 🚀 It’s just “Legal & Intellectual Ethics 101” (not to mention standard professional courtesy). As a former judge, albeit only one in the CINOs, I gave little weight to quotations and citations to anonymous or unidentified sources.

🇺🇸Due Process Forever!

PWS

01-13-23

🇺🇸⚖️👨🏽‍⚖️👩🏽‍⚖️🗽 I Want YOU To Be A U.S. Immigration Judge! — “A Blueprint for America’s Better Federal Judiciary of the Future!“ — AILA D.C. CHAPTER — 01-11-23

Excerpts:

Now, those of you who read my blog immigrationcourtside.com or have heard me speak before, or both, know that I am an outspoken critic of the last four Administrations’ gross mismanagement and misdirection of our Immigration Courts. So, you might well ask why I am here recruiting YOU to become part of a court system that I have consistently lampooned and characterized as dysfunctional, FUBAR, and badly in need of long-overdue reforms.

A better question might be why AG Garland, VP Harris, Deputy AG Lisa Monaco, and Associate AG Vanita Gupta AREN’T here today actively recruiting you to apply to become Immigration Judges in their system. It’s a hugely important court, perhaps the largest in the Federal Government, that cries out for excellence, practical immigration scholarship, and badly needs a much more diverse, representative, and expert judiciary to achieve equal justice for all in America.

The short answer is because I CARE, and THEY DON’T! I have a vision of a model court system unswervingly dedicated to due process, fundamental fairness, great practical scholarship, best judicial practices, fantastic public service, and equal justice for all! THEY DON’T!

After two largely fruitiness and frustrating years of the Biden Administration’s bungling immigration and social justice mis-steps, it’s painfully clear that the needed management, personnel, operational, and expertise reforms needed at EOIR AREN’T going to come from above.

But, if you have been in Immigration Court and thought “Hey, there is a better, more informed, more efficient, more just way to run this railroad, why isn’t it happening,” THIS is YOUR chance to get on board and change the direction of EOIR and the millions of lives and livelihoods that depend on it! See that the next generations of dedicated immigration lawyers won’t face some of the unnecessary and counterproductive roadblocks and bad experiences that you have had to deal with in seeking justice for your clients before EOIR!

. . . .

Not surprisingly, asylum grant rates dropped precipitously during the Trump years. Although they have rebounded some under Biden, they still remain below the 2012 levels. It’s certainly not that conditions have substantially “improved” in major “sending countries.” If anything, conditions are worse in most of those countries than in the years preceding 2012.

So, if the law hasn’t changed substantially and country conditions haven’t improved, what has caused regression in asylum grant rates at EOIR? It comes down to poor judging, accompanied by inadequate training, too much emphasis on “churning the numbers over quality and correctness,” and a BIA that really doesn’t believe much in asylum law and lacks the expertise and commitment to consistently set and apply favorable precedents and end disgraceful inconsistencies and “asylum free zones” that continue to exist.

Some of the most disgraceful, intentional asylum misinterpretations by Sessions and Barr now have been reversed by Garland. Unfortunately, he failed to follow-up to insure that the correct standards are actually applied, particularly to recurring circumstances. It’s one of many reasons that the Biden Administration struggles to re-establish a fair and efficient legal asylum system at the Southern Border — notwithstanding having two years to address the problems!

But, it doesn’t have to be this way! Recently, as I noted earlier, a number of notable “practical scholar experts” have been appointed to the Immigration Judiciary. When such well-qualified jurists reach a “critical mass” in the expanding EOIR, systemic changes and improvements in practices and results will happen.

The “dialogue” among Immigration Judges from government backgrounds and those from the private/NGO sector will improve. Lives will be saved. Life-threatening inconsistencies and wasteful litigation to correct basic mistakes at all levels of EOIR will diminish. The EOIR system will resume movement toward the former noble, but now long abandoned, vision of “through teamwork and innovation, being the world’s best administrative tribunals, guaranteeing fairness and due process for all!”

. . . .

So, warriors of the NDPA, check out USA Jobs, make those applications for EOIR judgeships! Storm the tower from below! Make a difference in the lives of others, stand up for due process and fundamental fairness for all persons, and help save our democracy! Become better judges for a better America! If not YOU, then who?

You can watch my full webinar here:

AILA Webinars shared the following meeting recording with you.

Topic: How to become an EOIR judge

Date: Jan 11, 2023 11:42 AM Eastern Time (US and Canada)

Watch the Recording

Passcode: !Eidn9fx

For those who prefer to see it in writing, here’s a link to the complete speech:

AILA DC Becoming An Immigration Judge

***********************

🇺🇸 Due Process Forever!

PWS

01-11-23

🤯👎🏼 EXPERTS’ CONDEMNATION OF BIDEN’S LATEST ANTI-ASYLUM BORDER GIMMICKS SWIFT, BRUTAL, TRUE!

From Eleanor Acer @ Human Rights First:

The president described the new approach as one intended to expand opportunities for migrants. But immigration advocates denounced the changes, saying that they included vast new restrictions on the right to claim asylum for people who need to escape their countries.

Eleanor Acer, the director of the refugee protection program at Human Rights First, called the new policies “a humanitarian disgrace” and said the president should not be adding restrictions on people who seek refuge in the United States.

“The Biden administration should be taking steps to restore asylum law at ports of entry,” she said, “not doubling down on cruel and counterproductive policies from the Trump playbook.”

https://lnkd.in/eJeDidzY

Biden Announces Major Crackdown on Illegal Border Crossings

nytimes.com • 2 min read

*******

From Amy Fischer @ Amnesty International USA:

“Amnesty International USA condemns the Biden Administration’s attack on the human right to seek asylum. Today, the Biden Administration fully reversed course on its stated commitment to human rights and racial justice by once again expanding the use of Title 42, announcing rulemaking on an asylum transit ban, expanding the use of expedited removal, and implementing a new system to require appointments through a mobile app for those desperately seeking safety. While we welcome the expanded humanitarian parole program to provide a pathway for Cubans, Haitians and Nicaraguans to apply for protection without having to make the dangerous journey to the border, that must not come at the expense of the human right to seek asylum. These new policies will undoubtedly have a disparate impact on Black, Brown, and Indigenous people seeking safety. In fact, Amnesty International previously found that the cruel treatment of Haitians under Title 42 subjected Haitian asylum seekers to arbitrary detention and discriminatory and humiliating ill-treatment that amounts to race-based torture. The United States has both a legal and moral obligation to uphold the right to seek asylum, and over the holidays, we once again saw communities mobilize to welcome asylum seekers with dignity. The Biden Administration must reverse course and stop these policies of exclusion, and instead uphold the right to seek asylum and invest in the communities that are stepping up to welcome.”

https://lawprofessors.typepad.com/immigration/2023/01/biden-administration-continues-to-attack-asylum.html

*******

From Mary Miller Flowers @ Young Center for Immigrant Children’s Rights:

“President Biden’s announcement today is a far cry from the commitments he made on day one to fight for racial justice, immigrant rights, and family protection,” Mary Miller Flowers, the senior policy analyst at the Young Center for Immigrant Children’s Rights, said in a statement.

“The right to asylum should not hinge on your manner of flight from danger or your financial means,” Flowers continued. “Seeking safety is treated as a privilege for a select few, and the Biden Administration’s cherry-picking of who can and cannot access protection proves this.”

https://www.huffpost.com/entry/joe-biden-border-policy-cubans-haitians-nicaraguans_n_63b72754e4b0ae9de1bcb181

*******

From Kate Jastrom @ Center for Gender & Refugee Studies @ Hastings Law:

“Today President Biden proudly touted his commitment to providing legal pathways for asylum seekers and improving conditions at the U.S.-Mexico border. These were empty words,” said Kate Jastram, CGRS Director of Policy & Advocacy. “By expanding its deadly Title 42 policy to Haitians, Cubans, and Nicaraguans, the Biden administration is going far beyond what any court has required it to do. This expansion will put vulnerable refugees in harm’s way and exacerbate violence and chaos in border communities.”

“People fleeing persecution have a legal right to seek asylum at our border under both U.S. and international law, no matter how they get here, no matter who they know, and no matter what documents they hold,” Jastram continued. “Many are forced to escape their homes under threat of death at a moment’s notice, with nothing more than the clothes on their backs. Their rights should never be supplanted by limited and discriminatory parole programs that offer relief only to a lucky few. We are also deeply disturbed that the administration has announced plans to revive and repackage the Trump-era asylum transit ban. President Biden cannot pledge to hold the ‘torch of liberty’ aloft, then turn around and embrace the most inhumane, anti-refugee policies of his predecessor.”

https://cgrs.uchastings.edu/news/biden-doubles-down-trump-era-cruelty-border

From Maria Daniella Prieshoff @ Tahirih Justice Center:

“This is truly a stain on the record of any administration seeking to uphold the U.S. asylum law and its responsibilities under international law. We must work together to ensure that for #JusticeForImmigrants is truly equal.”

**********

From Sen. Robert Menendez (D-N.J.):

Sen. Robert Menendez (D-N.J.), who along with Senate Majority Leader Charles E. Schumer (D-N.Y.) has pushed the Biden administration for months to end Title 42, criticized the administration’s plan, saying it goes too far in restricting migrants’ access to the border.

“The Biden Administration’s decision to expand Title 42, a disastrous and inhumane relic of the Trump Administration’s racist immigration agenda, is an affront to restoring rule of law at the border,” Menendez said in a statement. “Ultimately, this use of the parole authority is merely an attempt to replace our asylum laws, and thousands of asylum seekers waiting to present their cases will be hurt as a result.”

From Jonathan Blazer @ ACLU:

The American Civil Liberties Union, which has led the legal battle to stop the expulsions since the Trump administration, criticized Biden for continuing to rely on Title 42, saying expelling migrants will send them into dangerous border cities where some have been kidnapped or killed. “This knee-jerk expansion of Title 42 will put more lives in grave danger,” Jonathan Blazer, the ACLU’s director of border strategies, said in a statement.

Border Death — This is a monument for those who have died attempting to cross the US-Mexican border. Each coffin represents a year and the number of dead. It is a protest against the effects of Operation Guardian. Taken at the Tijuana-San Diego border.
Tomas Castelazo
In order to comply with the use and licensing terms of this image, the following text must must be included with the image when published in any medium, failure to do so constitutes a violation of the licensing terms and copyright infringement: © Tomas Castelazo, www.tomascastelazo.com / Wikimedia Commons / CC BY-SA 3.0

From Margaret Cargioli @ Immigrant Defenders Law Center:

Margaret Cargioli, a lawyer with the Immigrant Defenders Law Center, said the program was effectively screening out migrants who lack U.S. connections or money to buy airplane tickets. She said Title 42 was “put in place by a racist and xenophobic administration” bent on stopping immigration, not protecting public health.

“It really does go against the nature of … ‘My life is in danger. I need to get out,’” she said at a Dec. 29 news conference. “And that is what the essence of an asylum seeker is.”

https://www.washingtonpost.com/politics/2023/01/05/biden-border-security-immigration/

***********************

Alas, no surprise to “Courtside” readers! The question is what can and will human rights supporters, progressives, and racial justice advocates DO about the consistent betrayal of humanitarian values values and the rule of law by Dems; not to mention Dems trashing their own campaign promises!

Trump’s nativist racism and Biden’s incompetence have actually moved our nation’s approach to legal refugee and asylum status BACK more than four decades! In place of the international framework put in place by Congress in the Refugee Act of 1980, we now have a hodgepodge of arbitrary, ad hoc, actions by the Biden Administration, relying to an unacceptable (and prima facie illegal) extent on the use of “emergency parole” authority as a partial substitute for legal refugee and asylee admissions!

This favors some non-refugees with “sponsors” over those who meet the accepted international definition of “refugee.” It promotes Executive and political favoritism over the needs of legal refugees. It stands on its head the normal refugee definition requiring an individual to be OUTSIDE their country of nationality to apply.

Congress did give the President extraordinary authority to admit those who otherwise meet the “refugee” definition directly from their native countries in conflict. However, rather than using this legal authority, Biden has chosen to misuse parole to EVADE it.

Even for those Venezuelans, Nicaraguans, Haitians, and Cubans fortunate enough to be chosen for parole, the first three groups will be left in limbo with no clear way of obtaining permanent immigration status after the expiration of their two-year “parole.” This obviously converts them into “political footballs” — particularly if the GOP were to regain the Presidency in 2024!

Paroled Cubans, on the other hand, might qualify for green cards under the “Cuban Adjustment Act of 1966” after one year. This creates yet another arbitrary inconsistency among those similarly situated, based solely on nationality.

The Refugee Act of 1980 creates a screening and adjustment process for those admitted as refugees thereunder, similar to the Cuban Adjustment Act. It also creates a similar process for those refugees granted asylum at the border or in the interior.

But, Biden’s choice NOT to use the existing legal provisions established by the Refugee Act of 1980, recreates exactly the type of disorder, arbitrariness, and uncertainty that the Refugee Act of 1980 was intended to end! And, they did in fact more or less end for nearly four decades, prior to the Trump-initiated fiascos that began in 2017 and which Biden, despite pledges to the contrary, has lacked the competence, expertise, and will to end and restore the rule of law!

If properly staffed with human rights experts and dynamic, visionary “practical scholars” as leaders, our legal refugee and asylum systems could not only be restored, but could also be dramatically improved and made fairer! That’s basically what Biden promised during the 2020 campaign.

Outrageously, once in office those promises have been trashed and, predictably, chaos and incompetence reigns. That’s a deadly combination for asylum seekers patiently waiting for our nation to honor its laws and international obligations!

It shouldn’t be like “waiting for Godot!” But, it is!

🇺🇸Due Process Forever!

PWS

02-06-22

🏴‍☠️ BREAKING: SCOFFLAW ALERT: LACKING COMPETENCE & ABILITY TO FAIRLY ADMINISTER REFUGEE & ASYLUM LAWS, LIKE TRUMP BEFORE HIM, BIDEN PROPOSES NEW “GIMMICKS” TO REWRITE LAW BY FIAT RATHER THAN LEGISLATION! — Expanded Use Of “Emergency Parole” To Replace Law’s Existing Refugee & Asylum Programs Appears Illegal!

Biden Border Message — “Border Message”
By Steve Sack
Reproduced under license

Biden’s new immigration plan would restrict illegal border crossings

The measures are likely to draw legal challenges. They would expand rapid expulsion for illegal border crossers but allow more migrants from Cuba, Nicaragua, Haiti and Venezuela.

Read in The Washington Post: https://apple.news/ARS8hkdNCShagYwOQlpmHkA

BY CLEVE R. WOOTSON JR., NICK MIROFF AND MARIA SACCHETTI report for WashPost, January 5, 2023 11:22 AM

President Biden on Thursday will announce new immigration restrictions, including the expansion of programs to remove people quickly without letting them seek asylum, in an attempt to address one of his administration’s most politically vulnerable issues at a time when the nation’s attention is focused on Republican disarray in the U.S. House.

The measures will expand Biden’s use of “parole” authority to allow 30,000 migrants from Cuba, Nicaragua, Haiti and Venezuela to come to the United States each month, as long as a U.S. sponsor applies for them first. But those who attempt to migrate through the region without authorization will risk rapid expulsion to Mexico, as the administration plans to expand its use of the pandemic-era Title 42 public health policy. Mexico has agreed to take back 30,000 border-crossers from those nations each month, U.S. officials told reporters during a briefing Thursday morning.

The measures, which are likely to draw legal challenges from immigration advocacy groups,”will expand and expedite legal pathways for orderly migration and result in new consequences for those who fail to use those legal pathways,” the White House announced.

Biden, who has said he will seek reelection in 2024, is contending with the political and operational fallout of two consecutive years of record numbers of migrants taken into custody at the Mexican border, in part because of his more welcoming policies.

Before taking office, Biden said he wanted an orderly system, not “2 million people on our border.” The number of border apprehensions jumped to 1.7 million during his first year in the White House, however, and soared to nearly 2.4 million in his second year. Biden campaigned on the promise that his administration’s immigration system would be “safe, orderly and humane”; his pivot toward amped up enforcement suggests the White House sees immigration as a 2024 liability.

The administration’s solution is legally thorny and will likely anger immigration advocates and even some Democrats — and will probably do little to silence Biden’s Republican critics.

. . . .

************************

Read the complete story at the link:

Biden’s plan effectively imposes arbitrary geographic and ideological restrictions on those seeking protection — something that Congress specifically intended to eliminate when enacting the Refugee Act of 1980;
Biden’s plan leaves out asylum seekers and refugees from the Northern Triangle, some of those most in need of protection;
It imposes arbitrary and illegal numerical limits on those who might otherwise seek asylum;
It continues the illegal and expanded use of Title 42 as a border enforcement mechanism having nothing whatsoever to do with public health — a position that the Administration itself has refuted in Federal Court all the way up to the Supremes;
It leaves those “paroled” in limbo with no clear path to legalization in the U.S., other than perhaps eventually applying for asylum in overloaded and often biased system with a backlog of many years;
Any future path to legal status for these parolees would require legislation agreed to by the GOP — not likely to happen — thus making these individuals “bargaining chips” for nativists seeking further restrictions on legal immigration and the right of asylum;
The “mass use” of parole at a rate of 30,000/month appears a direct violation of section 212(d)(5) of the INA, as amended by the Refugee Act of 1980, which specifically intended to end the “mass use” of parole as a substitute for admitting refugees under the legal framework set up by the Refugee Act of 1980, as amended.

Here’s a “spot on” comment by Margaret Cargioli from the Post article:

Margaret Cargioli, a lawyer with the Immigrant Defenders Law Center said the program was effectively screening out migrants who lack U.S. connections or money to buy airplane tickets. She said Title 42 was “put in place by a racist and xenophobic administration” bent on stopping immigration, not protecting public health.

“It really does go against the nature of … ‘My life is in danger. I need to get out,’ ” she said at a Dec. 29 news conference. “And that is what the essence of an asylum seeker is.”

🇺🇸 Due Process Forever!

PWS

01-05-23

🤮👨‍⚖️OUR FAILING COURTS👎🏽: Dean Erwin Chemerinsky Slams Supremes For Scofflaw, Politicized, Biased Title 42 Travesty — The Supremes’ Misconduct & Incompetence In This Case Affecting Human Lives Is Totally Unacceptable! 🏴‍☠️ — Progressives Must Take The Fight To The Neo-Fascist Right For American’s Future! — “The Supreme Court’s order is senseless!”

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=792adcfa-2c82-4cca-953c-bf1dfeb1a070

On Title 42, the Supreme Court rules for a partisan agenda

COVID-19 is no reason to shut out migrants. Yet it’s used as a political pretext.

By Erwin Chemerinsky

The Supreme Court’s ruling last week to keep in place a Trump-era immigration order can only be understood as five conservative justices advancing a conservative political agenda, in violation of clear legal rules.

Without giving reasons or any explanation, the court reversed lower court decisions that allowed the Biden administration to lift a restriction that prevents asylum seekers at the border from entering the country, imposed early during the COVID-19 pandemic.

The federal law — referred to as Title 42 — permits the Centers for Disease Control and Prevention to prohibit people from coming into the U.S. to avert the spread of a “communicable disease” present in a foreign country.

.. . .

In November, U.S. District Judge Emmet Sullivan, in Washington, D.C., found that the continued use of Title 42 was “arbitrary and capricious in violation of the Administrative Procedure Act.” He ruled that the expulsion policy was no longer justified based in light of the present state of the pandemic, which includes widely available vaccines, treatments and increased travel in the United States.

Nineteen states with Republican attorneys general, however, oppose that ruling and sought the right to appeal to the U.S. Court of Appeals for the District of Columbia Circuit. They were not parties to the lawsuit in the District Court and the law generally does not allow parties to get into a case for the first time at the appeals level. On Dec. 16, the federal Court of Appeals, following its well-established law, refused to allow the states to intervene. The states then sought Supreme Court review of that decision.

On Dec. 27, in Arizona vs. Mayorkas, the Supreme Court, in a 5-4 ruling, not only said that it would hear the states’ appeal, but that it would require that the Biden administration continue to use Title 42 to expel migrants.

The court’s action makes no sense for several reasons. Title 42 provides the government authority to close the borders only if a public health crisis involving a communicable disease requires it. No one in the litigation disputes that COVID no longer warrants restrictions on immigration.

. . . .

The states are intervening not because they believe that a continuing public health emergency requires Title 42, but because they want to use it as a pretext to close the borders.

In fact, in another case now pending on the Supreme Court’s docket — on whether the Biden administration’s student loan forgiveness program is justified as a response to the pandemic emergency — 12 of the states in the Title 42 case argued in their brief that “COVID-19 is now irrelevant to nearly all Americans.”

The Supreme Court’s order is senseless for another reason: The only issue before the court is whether the states can intervene in the case. It is not about whether the District Court erred in ending the use of Title 42 to expel migrants. Even if the states were allowed to join the case, they can’t plausibly make the case that COVID concerns still justify immigration expulsions at this point.

. . . .

The five conservative justices based their decision not on the purpose of Title 42, which is to stop the spread of a communicable disease, but on their partisan agreement with conservatives on immigration issues. We should expect better of the court than that.

*********************

Read Dean Chemerinsky’s full article at the link. Having a High Court, with life tenure, where a majority of the Justices enter “senseless orders” — targeting some of the most vulnerable and abused in our society who also happen to be predominantly individuals of color — is in and of itself senseless — from a standpoint of preserving our democracy!

The action of the five GOP Supremes is beyond outrageous! The NDPA CAN turn this gross right-wing minority abuse of our judicial system around! Likely not in my lifetime!

But, you need to keep pushing Dems to pay attention to judicial appointments and start insisting on meaningful professional expertise in immigration and actual experience representing individuals in Immigration Court as a basic requirement to serve as a Justice. Also we need an Article I Immigration Court and NO MORE Attorneys General without proven “grass roots” immigration and human rights experience!

Immigration is “where the action is” on the fight to save American democracy! If tone-deaf and spineless Dem politicos keep “running” from the key issue in American law and society, perhaps it’s time for true liberals, progressives, and constitutional humanitarian realists to “run” from the Dem Party!

This Supreme farce also reinforces the disgraceful failure of Garland and the Dems to reform the “Supreme Court of Immigration” — the BIA — by replacing enforcement-tilted Trump holdovers with practical scholar, expert, progressive judges committed to realizing long-denied due process, fundamental fairness, and the best interpretations of immigration and refugee laws! Dems control an important Federal Appellate body and are too clueless and afraid to do the right thing — even with the rule of law, racial justice, and human lives on the line!

🇺🇸Due Process Forever!

PWS

01-02-23

🤯 ❓QUESTION OF THE DAY: “Biden says he wants to dismantle Title 42,” writes Catherine Rampell @ WashPost, “so why has he expanded it?”

By Catherine Rampell

https://www.washingtonpost.com/opinions/2022/12/29/title42-migrant-asylum-biden-solutions/

The Biden administration has long been saying that it wants to get rid of Title 42.

Why, then, has it been expanding use of this policy?

“Title 42” is shorthand for what is effectively an abuse of a public health authority to circumvent U.S. asylum laws. Beginning in March 2020, the Trump administration used an obscure public health statute to automatically expel migrants without allowing them to first apply for asylum, as is their right under U.S. law and international treaty;PresidentDonald Trump’s pretext was that these immigrants might spread covid-19.

Apparently, Trump considered covid a liberal media hoax except when useful for punishing foreigners.

Human rights advocates and public health experts alike criticized the policy as probably both illegal and lacking a credible epidemiological purpose. Whatever its intentions, it didn’t reduce stress at the border; instead, it increased attempted border crossings, as many people expelled without consequence or due process turned right around and tried again to enter the United States.

That is, if they weren’t kidnapped, tortured, raped or otherwise violently attacked first. This happened in more than 10,000 cases of expelled migrants, as documented by Human Rights First.

As a presidential candidate, Joe Biden pledged to restore the integrity of the asylum system. He promised that anyone qualifying for an asylum claim would “be admitted to the country through an orderly process.” As president, though, Biden dragged his feet in terminating Title 42. He finally agreed to end the program this past spring. But termination has since been delayed by complicated court rulings, which Biden officials seem to have fought only half-heartedly.

This week, the Supreme Court determined that Title 42 must remain in place at least until the court decides a related issue (probably in the coming months). Given the Biden administration’s claims of wanting to end Title 42, the president should theoretically be mad about the delay.

Instead, Biden officials seem to have seized the opportunity to make yet more immigrant groups subject to automatic expulsions. “The administration has taken the position in court that they can no longer justify keeping Title 42 in place, given the lack of any public health justification,” said Lee Gelernt of the American Civil Liberties Union, which is challenging the expulsion policy. “If you look at the administration’s actions, however, it’s clear they’re fine with Title 42 remaining in place.”

. . . .

Americans often complain that immigrants should come here “the right way,” but for many migrants, showing up at the border unannounced and turning themselves in is the only legal pathway available. If given options to come here that don’t require paying gangs and crossing deserts, people would gladly take them — which would in turn alleviate stress at the border.

To its credit, the Biden administration has taken baby steps on that last recommendation.

Its Uniting for Ukraine program, for instance, has vetted and “paroled in” more than 82,000 Ukrainians and their immediate relatives abroad, which has discouraged Ukrainians from showing up en masse at our southern border (as had been the case early in the war). A similar but much more restrictive program was created for Venezuelans, whose numbers are capped at 24,000; a parallel program is reportedly in the works for Cubans, Nicaraguans and Haitians.

But again, these additional legal pathways can be created while still upholding the ability to apply for asylum at our borders. That’s what U.S. law requires — and what Biden has, repeatedly, promised to do.

***********************

Read Catherine’s full article at the link. “If you look at the administration’s actions, however, it’s clear they’re fine with Title 42 remaining in place.” So true! So outrageous!

Contrary to much of the blather from both parties, refugee and asylum laws are an integral part of our LEGAL immigration system — one that is now being grossly misapplied and under-utilized!

Creating additional legal avenues for immigration by legislation is by no means inconsistent with maintaining robust, well-functioning refugee and asylum programs!

There are lots and lots of improvements that the Biden Administration could and should have made to the legal refugee and asylum programs that already exist under the law! Indeed, I suggest that many of the bogus “gimmicks” and counterproductive, wasteful, unfair “deterrents” devised and implemented by the Biden Administration, including expanded use of Title 42, were in direct or indirect response to Garland’s failed Immigration Courts. Because they are backlogged, inefficient, and dysfunctional, bureaucrats and politicos dream up ways to evade them (as opposed to fixing them so they work)!

It’s all wrong! There are “tons” of cases rotting in Garland’s ever-expanding EOIR backlog that could be granted or otherwise disposed of with relative ease and without stomping on anyone’s due process rights! There are ways of providing proper notice, better scheduling, and a new system for initial adjudications of non-LPR cancellation cases that do NOT require legislation; just better leadership and personnel at DOJ, DHS, and the White House!

The lack of scholarly, progressive, due process oriented precedents and implementation of best judicial practices by the BIA cripples justice in both the Immigration Courts and the USCIS Asylum Offices, even extending to the Refugee Program and other forms of USCIS adjudication of benefits.

For example, the ridiculous, largely self-created, backlogs in USCIS work authorizations is at least partially fueled by never ending backlogs in Immigration Court. Also, bad judicial decisions at EOIR create large amounts of unnecessary litigation in the Article III Courts and promote inconsistencies by allowing too many important issues, including proper application of some of the BIA’s own precedents favorable to respondents, to be resolved by the Circuits.

The system is a godawful mess! Yet, Dems in Congress didn’t even consider pressing for long-overdue Article I legislation, already introduced by Chair Lofgren, as part of their “lame duck push.” Thus, a key part of the immigration and justice systems continues to flounder and fail in Garland’s DOJ!

The need for so-called “comprehensive immigration reform” does not in any way minimize the responsibility of the Biden Administration for failing to reform the leadership and bureaucracies at DOJ and DHS to produce fairer, more efficient, expert, professional results!

Some cowardly Dem politicos and many Biden officials “run” from the immigration issue; yet, addressing and fixing the parts they control, like EOIR, could well have given them success to tout during the mid-term campaign.

And, as many experts suggest, it might also have helped address labor shortages, inflation and improved the economy. Rather than just “holding off disaster,” by acting more boldly on immigration the Dems might even have maintained and expanded their political control by demonstrating both the competence to solve immigration problems, even without comprehensive legislation, and the benefits of a fair, efficient, functional immigration system to America as a whole.

With the GOP taking over the House, expect many Dems to continue bellyaching that “nothing can be done about immigration.” It’s not like they did much of anything when they controlled both Houses!

There are still things that can be done to make the system fairer, more efficient, and more responsive to the common needs of America. Progressives should not let Dem “naysayers” off the hook!

🇺🇸 Due Process Forever!

PWS

12-31-22

🇺🇸 Due Process Forever!

Related posts:

Stuart writes:

🇺🇸 Due Process Forever!

Related posts:

Johnathan Chait @ The Intelligencer:

🇺🇸 Due Process Forever!

Related posts:

Yael Schacher writes in WashPost:

🇺🇸 Due Process Forever!

Related posts:

🇺🇸Due Process Forever!

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JAROD FACUNDO in The American Prospect:

🇺🇸 Due Process Forever!

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Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸 Due Process Forever!

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“The power of AYUDA is hope!”

— Paula Fitzgerald, Executive Director, AYUDA

PROGRAM NOTES ADAPTED FROM http://NEWORKSPRODUCTIONS.COM:

“We’re Marching On!”

“We are the ones to heal our land.”

🇺🇸Congrats, Paula, my friend, and Due Process Forever!

Related posts:

Kristina reports:

🇺🇸 Due Process Forever!

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From Dean Kevin Johnson @ ImmigrationProf Blog:

Key recommendation from HLR article:

🇺🇸Due Process Forever!

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Excerpts:

You can watch my full webinar here:

For those who prefer to see it in writing, here’s a link to the complete speech:

🇺🇸 Due Process Forever!

Related posts:

From Amy Fischer @ Amnesty International USA:

From Mary Miller Flowers @ Young Center for Immigrant Children’s Rights:

From Kate Jastrom @ Center for Gender & Refugee Studies @ Hastings Law:

From Maria Daniella Prieshoff @ Tahirih Justice Center:

From Sen. Robert Menendez (D-N.J.):

From Jonathan Blazer @ ACLU:

From Margaret Cargioli @ Immigrant Defenders Law Center:

🇺🇸Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

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🇺🇸Due Process Forever!

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By Catherine Rampell

🇺🇸 Due Process Forever!

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