"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
It was the first reported death at the Stewart Gulag since the Trump regime’s final killing in December 2020.
With “Caretaker Bureaucrats” in charge @ DHS & DOJ, the deadly migrant killing, harming, and terrorizing policies continue unabated. Indeed, as far as I can tell, seedy DOJ lawyers are pushing forward with defending the very cruel, stupid, inhumane, and illegal policies and bankrupt legal positions that the Trump immigration kakistocracy made infamous. The same policies that Biden and Harris campaigned against! EOIR continues to crank out skewed anti-immigrant, anti-asylum jurisprudence.
The current policies are killers; the bodies continue to pile up, even if they are (quite intentionally) in obscure places like Lumpkin, GA, the “no persons land” near the Mexican border, and in dangerous and corrupt foreign nations where our Government mindlessly “orbits” other human beings without regard to what it will happen to them.
For now, these stories of death, despair, and unnecessary human suffering are largely “out of sight, out of mind.” But, they are being documented and eventually history will highlight those, from the Roberts’ Court on down, who abjured their duties to their fellow humans and abused their positions of public trust.
Due Process Forever! Death ⚰️ in The New American Gulag ☠️, never!
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)Dumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under license
Last week, 9000 Hondurans were beaten and tear-gassed in Guatemala as they tried to make their way to the U.S. border. More will be coming. The Biden administration just introduced the most comprehensive immigration bill since Ronald Reagan and also hopes to embark on a new strategy for the Northern Triangle of El Salvador, Honduras and Guatemala.
This is undisputedly good news for a region ravaged by two Category 5 hurricanes in 2 weeks and an economy devastated by the Covid pandemic. But, unless that aid directly addresses the rampant corruption that has taken hold in the region, it will not stop thousands of desperate people from fleeing countries that give them little hope to survive much less flourish.
Make no mistake, it is corruption that has stolen hope from the region. Elites steal from school and hospital budgets to fund political campaigns and line pockets. Politicians give family members and supporters coveted government positions that should go to those most qualified. Police are bribed and threatened to look away while drug traffickers and gangs shatter communities.
Until this staggering systemic corruption is dismantled and the education, health and security institutions strengthened, Central Americans have little reason to hope for a future in their own countries.
During his presidential campaign, Joe Biden issued just one policy position for the Western Hemisphere and it was on Central America. In it he proposed a number of worthy initiatives, but one merits special consideration– a Central American anti-corruption commission that operates outside the control of the elites who are most threatened by its existence.
To be successful, this commission must learn from past experiences in Guatemala (CICIG), Honduras (MACCIH) and El Salvador (CICIES). While the first two enjoyed significant success, as soon as U.S. and local political pressure waned even a little, the local elites joined together to expel them.
. . . .
Authors! James D. Nealon is a former U.S. Ambassador to Honduras and Assistant Secretary of Homeland Security. Eric L. Olson is a Wilson Center Global Fellow. Kurt Alan Ver Beek is Co-Founder and President of the Association for a More Just Society – Honduras
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Easier said than done. Many of the corrupt governing elites in Central America have close ties to our Government. They aren’t lightly going to let foreign assistance, whether from governments, NGOs, or private agencies go anywhere but their own pockets.
Also, Republicans in Congress have shown no willingness to deal with the overt corruption, grafting, and grafting of the Trump regime.
But the article is spot on about two things. Most Central American migration is driven by political punishment and exploitation of the people by corrupt government elites and those allied with them (gangs, in many instances). Far from being “random violence” or “common crime” as many restrictionists and border bureaucrats claim, it’s simply a variation of classic political, ethnic, and social group persecution. Those fleeing this abuse are refugees. Only by abdicating the law, intentionally skewing it, and too often just overtly violating it (sometimes with the complicity of courts, sometimes in violation of court orders) has our Government been able to avoid granting them the legal protection they deserve.
Second, desperate refugees are going to continue to come as long as they perceive it’s safer here than in their broken home countries or any of the other countries they will have to cross to get there. No walls, prisons, death at the border, violations of domestic and international law, racist rhetoric, illegal deportations, child abuse, misogyny or or other cruel, inhuman, and immoral policies will stop human migration.
We know roughly how many have been illegally returned and imprisoned. We have some “guesstimates” as to how many additional border crossers our failed policies have killed.
But, we have little or no idea how many have taken to heart our message about the falseness of our claim to be a “nation of laws” and the readily apparent bankruptcy of our legal system. Undoubtedly, those who “get it” have or will in the future simply keep crossing the border until they die in process or get to the interior where their chances of melding in and surviving are much better than their chances of getting a asylum or other protections from an EOIR that still appears to be carrying out the Steven Miller White Nationalist agenda.
The “government policies” of actively discouraging and punishing asylum applicants who apply in an orderly way at the border is as insanely stupid as it is cruel and illegal. Actually, allowing individuals to apply for asylum at the border “regardless of status” is a hallmark of the Refugee Act of 1980!
A few thousand desperate refugees who walk here from Central America pose no realistic threat to America or our national security. They merely detract attention from the real threats: armed right wing insurrectionists launching a deadly attack on our Capitol, right wing domestic terrorists energized by Trump, and maskless “magamorons” running around spreading deadly disease.
Process those applying at the border promptly under the appropriate generous legal criteria after giving them access to trained asylum advocates. Admit those who qualify after proper health and security screening. Work with the UNHCR and NGOs on how to handle those who don’t meet refugee criteria. Just aimlessly returning them to danger zones in the middle of a pandemic is obviously a nonstarter. So, we’re going to need smarter people, with real expertise and a humanitarian outlook, working on better solutions. We know lots about what DOESN’T work. Now, we need to come up with what WILL work.
Dumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under license“Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Here’s the opinion, with no discernible rationale for this unprincipled and irrational action:
Here’s the “death to children” ☠️⚰️ panel: Katsas, Rao, and Walker, Circuit Judges. As long as it’s not THEIR children . . . .
Bad things happen to countries that make child abuse an “official policy” and reward child abusers with lifetime judicial appointments!
The Biden Administration needs to move quickly to get a handle on what’s happening in their name at the border. Also, might want to take a look at the Government lawyers who defend the indefensible in Federal Court.
Better Judges For a Better America! No more child abusers on the Federal Bench!
🇺🇸⚖️🗽Due Process Forever! Child Abusing Circuit Judges🤮, Never!
“The BIA erred in imposing evidentiary requirements of ongoing injury or treatment beyond the sexual assault itself in order to show persecution. Kaur’s credible testimony about the attempted gang rape is sufficient to show persecution. Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim. We grant Kaur’s petition for review and remand for further proceedings consistent with this opinion.”
[Hats off to Douglas Jalaie!]
1st Calls Out Violation Of Regs, Incredibly Stupid Denial Of Reopening For Approved U Visa Petition Beneficiary Waiting For “Number:”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
“Petitioner Carlos Antonio Granados Benitez seeks review of the Board of Immigration Appeals’ (“BIA” or “Board”) denial of his motion to reopen his removal proceedings and to remand to the immigration judge (“IJ”) for further consideration in light of the fact that he had been placed on a waiting list by United States Citizenship and Immigration Services (“USCIS”) for a U-1 nonimmigrant visa (“U visa”) pursuant to the Victims of Trafficking and Violence Protection Act (“VTVPA”), Pub. L. No. 106-386, § 1513(a)(2)(A), (b), 114 Stat. 1464 (2000) (codified as amended at 8 U.S.C. § 1101(a)(15)(U)). Because we find that the BIA abused its discretion, in that it failed to render a reasoned decision that accords with its own precedent and policies, and it further failed to consider the position of its sister agency Immigration and Customs Enforcement (“ICE”), we grant the petition. In so holding we join the views of the Seventh Circuit in Guerra Rocha v. Barr, 951 F.3d 848, 852- 54 (7th Cir. 2020).”
[Hats off to Paige Austin, with whom Philip L. Torrey, Make the Road New York, and the Harvard Law School Crimmigration Clinic were on brief, for petitioner, and Brian D. Straw, Gregory E. Ostfeld, and Greenberg Traurig, LLP on brief for ASISTA Immigration Assistance, Asian Pacific Institute on Gender-Based Violence, National Coalition Against Domestic Violence, National Network to End Domestic Violence, Safe Horizon, and Tahirih Justice Center, amici curiae!]
3rd “Perplexed” By BIA’s Ignorance Of “Equitable Tolling,” Own Authority:
“Hey, guys, ever hear of something called “equitable tolling?” “Nah, is it spelled D-E-N-I-E-D?” “Equitable TROLLING,” I’ve heard of that?”https://www.flickr.com/photos/rasputin243/ Creative Commons License
“Because Nkomo properly raised equitable tolling before the BIA, the BIA erred in failing to consider her request for equitable tolling on the merits. We remand for the Board to do so in the first instance.”
“The BIA’s suggestion that it does not have the authority to make decisions on equitable grounds is perplexing. The BIA has authority to equitably toll the deadline for motions to reopen the precise relief Nkomo sought.”
Demeaning rape victims! ☠️🤮👎🏻 So, what else is new @ EOIR? “Gonzo” Sessions 🦹🏿♂️ set the tone for anti-asylum, racially motivated misogyny in Matter of A-B- and “his judges” have taken it from there! (I repeat my oft-made observation: What kind of “due process” system lets a characters like Sessions, Whitaker, and Barr “own” judges? How would you like to be a woman on trial for her life before a “judge” selected, directed, and “owned” by the likes of these men with clear records of “applied contempt” for equal justice? Sessions, Whitaker, Barr, & Jeffrey Rosen are gone — but their legacy of bias and injustice lives on @ EOIR!)
One of my esteemed Round Table 🛡⚔️ colleagues summed up the latest set of outrageous miscarriages of justice from Falls Church:
All of these decisions demonstrate the degree of careful and detailed analysis that these cases require.And yet the BIA couldn’t keep staff attorneys after McHenry capped them at GS-13 (entry level), and keeps increasing the monthly quotas for BIA staff attorneys.Plus of course the Board Members themselves are now all these types who only review the decisions to make sure they end in the word “dismissed.”
If you were trying to create a recipe for disaster, you couldn’t have planned it better.
I heard the latter comment twice yesterday from immigration/human rights/due process experts on opposite sides of our country who observe and participate in the system at various levels.
To quote Justice Sotomayor’s recent dissent: “This is not justice.”
Historical Footnote:One of my first actions as BIA Chair in 1995 was to establish a “GS-15 Career Ladder” for all Attorney Advisors at the BIA. This made the BIA competitive with the rest of the DOJ.
It allowed us to attract and retain not only “top talent” coming from the “DOJ Honors Program” (how I got my first job at the BIA in 1973), but also outstanding career attorneys who wanted an opportunity to do research, writing, and “applied scholarship” that made a difference in individuals’ lives. Indeed, at various times the BIA has had on its staff former Senior Executives seeking a “change of focus” to a career that allowed them to do the things they liked best about the law.
One of them was a former SES colleague at the “Legacy INS” who found in transferring to a GS-15 BIA Attorney Advisor position a career satisfaction, fulfillment, and sense of meaningful contribution that person had been missing in INS management at that time.
Reducing the top grade for Attorney Advisors is not only professionally and personally demeaning, it also marks the entire organization as “second class” and shows just how stupid and incompetent (and, in recent history, overpaid) EOIR “management” has become! And, as pointed out in my colleague’s comments above, it has not only adversely affected careers but the human lives in the balance on the BIA’s docket.
As I understood my “mission” from then Attorney General Janet Reno in 1995, the BIA was supposed to be about “attracting the best and the brightest judges and supporting them with the best and brightest staff.” Essentially getting it to function like the “12th Circuit” was a description mentioned during my interview process for the Chair job.
Sadly, now, it has become an assembly line of expediency, injustice, shoddy legal work, mindless “corner cutting,” unprofessional behavior, and human misery.
To repeat my colleague’s comment: “If you were trying to create a recipe for disaster, you couldn’t have planned it better.”
All of these cases should have been resolved in the foreign national’s favor without ever getting to the Courts of Appeals! Bad judging, grossly incompetent administration, and lack of qualified, dynamic, judicial leadership from respected “practical scholars” costs lives, produces unacceptable and unfair inconsistencies, and clogs the Article III Courts with unnecessary litigation.
Indeed, the First Circuit’s decision in Granados basically reveals OIL’s “smorgasbord” of bogus arguments to uphold the BIA’s incorrect decision as “without merit” — actually frivolous! There are deep problems @ DOJ resulting from the ongoing corruption and disregard for ethics and professional leadership from the now-departed kakistocracy! They go far beyond the mess at EOIR!
Sure hope that Judge Garland, Vanita Gupta, and their incoming team @ DOJ have a comprehensive plan for replacing the BIA and reforming EOIR! The human beings suffering in this disgracefully inept and abusive “court system” and their courageous, long suffering attorneys are counting on you! Think of it this way: What if YOUR daughter were the rape victim demeaned, dehumanized, and denied justice by EOIR?
Professor Ingrid Eagly UCLA Law PHOTO: TwitterSteven Shafter, Esquire Managing Attorney Esperanza Immigrant Rights Project Los Angeles, CA Photo: Esperanza website
Aaron Reichlin-Melnick Policy Counsel American Immigration Council Photo: TwitterMe
PRESS RELEASE
11 Years of Government Data Reveal That Immigrants Do Show Up for Court
WASHINGTON—A new report released today by the American Immigration Council examines 11 years of government data on the rate at which immigrants appear for hearings in U.S. immigration court. The report, “Measuring In Absentia Removal in Immigration Court,” concludes that an overwhelming 83% of immigrants attend their immigration court hearings, and those who fail to appear in court often did not receive notice or faced hardship in getting to court.
As the new administration of President Joe Biden considers how to reform the immigration system, including the immigration courts, this report reveals how reliance on detention, access to legal representation, and immigration judges’ docket management impact immigrants’ appearance rate.
The report draws on government data from 2,797,437 immigration court removal proceedings held between 2008 to 2018. It documents how individuals who were never detained and those who were released from detention proceeded through court and what obstacles they faced in pursuing their immigration cases.
The report finds that people released from immigration detention and individuals with attorneys overwhelmingly attend their hearings. Data also show that immigration judges have a vital role in maintaining due process. The findings further demonstrate that the creation of an independent structure for the immigration courts would help reduce the prevalence of unwarranted in absentia removal orders and give immigration judges more discretion in managing their dockets and individual case decisions.
The main findings of the report include:
83% of nondetained immigrants with completed or pending removal cases attended all of their hearings.
96% of nondetained immigrants represented by a lawyer attended all of their hearings.
15% of those who were ordered deported because they did not appear in court successfully reopened their cases and had their removal orders rescinded. In some years, as many as 20% of all orders of removal for missing court were later overturned.
Individuals who apply for relief from removal have especially high rates of appearance.
Appearance rates vary strongly based on the immigration court’s location.
The Executive Office for Immigration Review’s method for measuring the rate at which immigrants fail to appear in court presents a limited picture of the frequency of missed court appearances.
“The empirical research presented in this report debunks the myth that immigrants don’t show up for court,” said Ingrid Eagly, professor of Law at UCLA School of Law. “Relying on the government’s own immigration court data, co-author Steven Shafer and I find that, since 2008, 83% of all immigrants in nondetained deportation cases have attended all of their court hearings. In addition, over the 11 years of our study, 96% individuals represented by an attorney attended all of their court hearings.”
“Today’s report verifies what those who have worked in the immigration court system already knew: immigrants overwhelmingly show up in court. We hope that this data finally puts to rest a false narrative about immigrants’ appearance rates that past administrations used to justify restrictive and cruel immigration policies,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council. “After previous administrations spent years funding immigration enforcement to address a small set of individuals who miss court, the Biden administration has the opportunity change course. To ensure even higher appearance rates, the new administration should focus on updating immigration court technology, providing better resources to orient immigrants, and working to ensure that all immigrants navigating our removal system are represented by counsel. As Congress debates immigration reform, this report shows that it’s time to revisit harsh and punitive laws that require judges to enter deportation orders for a single missed hearing and which limit the ability of the government to appoint counsel.”
“The findings of this timely report confirm what many of us formerly on the immigration bench have known for years: represented asylum seekers appearing before fair, knowledgeable judges show up for virtually all of their immigration court hearings,” said Paul Wickham Schmidt, former immigration judge and board member for the Board of Immigration Appeals. “The findings refute one of the many ‘big lies’ and ‘bogus narratives’ promoted by the last administration to demean and dehumanize asylum seekers and wrongfully deprive them of their legal and constitutional rights. The Biden administration should pursue changes that would provide immigration judges greater independence and discretion and support the creation of an independent structure for the immigration courts.”
Lies promoted by Government officials and turned into cruel, counterproductive, and biased policies cost lives and undermine our system of justice!
A stunning 96% of represented respondents appear for all hearings! The obvious step for the Biden Administration is to “repurpose” resources squandered by the defeated kakistocracy’s cruel, expensive, ineffective “enforcement gimmicks” like detention in the “New American Gulag,” ludicrous Immigration Judge “dashboards,” walls, bogus protocols, and illegal anti-asylum rules and instead invest in public-private partnerships to achieve universal representation. Building on existing programs, it should be possible to get all respondents represented by trained and competent counsel or accredited representatives.
Notably, Professor Michele Pistone @ Villanova already runs VIISTA, an innovative, first class asylum litigation training program for accredited representatives. Put some Federal grant money into expanding it to meet the need for representation throughout America. These are “obvious steps” ignored by a captive “court system” run by malicious incompetents implementing a White Nationalist agenda.
Professor Michele Pistone Villanova Law
Combined with a restoration of the rule of law at EOIR and rational DHS enforcement priorities, that’s the way to establish manageable Immigration Court dockets compliant with Due Process and fundamental fairness. Create a model court system that will be a source of pride, rather than a national disgrace.
Of course a legislatively-enacted, independent, professionally administered expert Article I Immigration Court is absolutely necessary. But, due process and fundamental fairness can’t wait! Lives and futures, not to mention our national values, are at stake. Judge Garland must end the dysfunction and start making urgently needed improvements @ EOIR immediately!
Removing (former) Director McHenry — who promoted the kakistocracy’s anti-immigrant myths, bogus statistics, and “worst management practices” — is a great start. But, it’s certainly not the end of the urgent changes that must be made to implement Due Process and professional court administration at EOIR. In particular, the current BIA is a due process, human rights, and asylum expertise “disaster zone!”
McHenry informed EOIR employees last Friday that he was returning to his position as an OCAHO Administrative Law Judge. Can’t imagine there were too many tears shed, except within the “inner circle” of the “EOIR kakistocracy.”
OCAHO has long been viewed as EOIR’s “Siberia equivalent” and has been used to “exile” other “out of favor” Senior Execs in the past (ironically including King). Given OCAHO’s traditionally rather limited docket, it appears that McHenry’s ability to further damage our justice system and demean humanity will be restricted.
Notably, he was appointed Director by former Attorney General and notorious child abuser Jeff “Gonzo Apocalypto” Sessions without any known qualifications to manage one of America’s largest, most important, and totally screwed-up court systems. Over his four-year tenure, he proved to be every bit as unqualified for the job as his embarrassingly-thin resume originally suggested he would be.
He was part of the remarkably unqualified aptly-named “Atlanta Mafia” at EOIR. They degraded justice and humanity in equal portions as part of their nativist crusade to expand the “Atlanta Asylum Free Zone” nationwide. Basically, only the courageous hard work of talented immigration advocates stopped their nefarious program from reaching its objective, although that’s not to minimize in any way the lasting damage they did to our legal system and human lives.
Among McHenry’s many negative achievements was driving already-low EOIR morale and poor working conditions to depths never before seen or imagined. And, that was for his own employees! Imagine what it was like for foreign nationals and their courageous, determined, yet beleaguered attorneys consigned to this “hell on earth” specially designed to chew up lives and degrade humanity as part of as vile “strategy” to use “courts as deterrents” to those with audacity to seek justice in America.
Jean King, by contrast, is an experienced public servant known for her commitment to due process, fundamental fairness, sound scholarship, ethical standards (something that has “gone AWOL” at the DOJ over the past four years), and the “lost art of good government” which the Biden-Harris Administration appears committed to re-establishing.
Jean served on the on the BIA staff when I was Chair. She advanced in EOIR during the tenure of the late Juan Osuna as BIA Chair and then Director. She reportedly chose “exile to OCAHO” after she refused as General Counsel to “go along get along” with some of McHenry’s more outrageously illegal regulatory/administrative moves. He also retaliated by cutting the authority of the OGC and assigning it instead to his bogus “Office of Policy.” (Talk about “fraud, waste, and abuse” of government resources –- while the Immigration Courts lacked, and still lack, a functioning e-filing system, McHenry found time and resources for shenanigans like this, obscene “Immigration Judge dashboards,” and pursuing “decertification” of the NAIJ which had “blown the whistle” on his “maliciously incompetent” management!)
McHenry’s continuing presence as Director following the inauguration and his “in your face audacity” in issuing memos attempting to define “judicial independence” as obedience to the White Nationalist restrictionist agenda he had been implementing rightly drew outrage from all immigration experts who understand the ongoing contempt for due process and abuses of humanity that have somehow become “institutionalized” as “acceptable behavior” at EOIR during the last four years. https://www.politico.com/news/2021/01/27/biden-replaces-immigration-court-463053
If nothing else, Jean King should be able to stop the flood of illegal regulations, false and misleading policy memos and bogus “fact sheets,” and further deterioration of due process until “Team Garland” gets its “EOIR Reform Group” in place.
All of us who care about American justice and due process should be heartened that somebody on the Biden Team is aware of the due process disaster at EOIR, has taken bold, decisive action, and apparently plans to fix it, sooner rather than later!
Here is Jean’s bio from the EOIR website:
Jean King Chief Administrative Law Judge
Jean King was appointed as the chief administrative law judge in June 2019. Immediately prior to assuming her current duties, she served as general counsel of the Executive Office for Immigration Review (EOIR) beginning in September 2015. Ms. King received a bachelor of arts degree in 1988 from Brown University and a juris doctorate in 1995 from the College of William and Mary. From July 2015 to August 2015, and previously from December 2012 to October 2014, Ms. King served as deputy general counsel, EOIR. From November 2014 to June 2015, she served as acting general counsel, EOIR. From October 2011 to December 2012, she served as a counsel to the director, EOIR. From March 2011 to October 2011, she served as acting director of operations, Board of Immigration Appeals (BIA), EOIR. From 2009 to March 2011, Ms. King served as a temporary board member, BIA. From 2006 to 2009, she was a senior legal advisor at the BIA. From 1996 to 2006, she served as an attorney advisor at the BIA. Prior to joining the BIA, Ms. King spent one year as a judicial law clerk with the Superior Court of Connecticut. Ms. King is a member of the Connecticut and New York State bars.
Good luck Jean! Please don’t forget the “Old EOIR Vision” that used to at the top of our internal web page– “through teamwork and innovation, be the world’s best tribunals guaranteeing fairness and due process for all.” It’s still the right vision for EOIR and America, and with the right team, in place, it still can be achieved!
PANEL: THACKER, RICHARDSON, and QUATTLEBAUM, Circuit Judges.
OPINION BY: JUDGE QUATTLEBAUM
DISSENT: JUDGE RICHARDSON
KEY QUOTE FROM MAJORITY:
Juan Carlos Amaya, a citizen of El Salvador, seeks to avoid deportation to that country, fearing persecution on account of membership in the PSG “former Salvadoran MS-13 members.”1 Appellant’s Br. at 13–16. For that reason, he argued to an immigration judge (“IJ”) that his removal from the United States should be withheld.2 After the IJ denied Amaya’s claims, he appealed to the Board of Immigration Appeals (“BIA”). The BIA dismissed Amaya’s appeal, determining that the “former Salvadoran MS-13 members” PSG was “too diffuse” to satisfy the particularity requirement. J.A. 4. Assuming we must afford Chevron deference to the BIA’s decision, our question is whether we think the BIA’s decision is reasonable. Because we do not, we grant the petition in part and remand on this ground.
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Great opinion by Judge A. Marvin QUATTLEBAUM! He’s a Trump appointee whom I’ve criticized in the past. But, his analysis is “spot on” in this case!
Perhaps the Federal Courts are finally catching on to the BIA’s disingenuous “scissors approach” to PSG. That’s used to “cut off” all PSG asylum claims no matter how meritorious.
Here’s how it works. They incorrectly find that almost all “particularized” social groups fail the “social distinction” test. But, when you prove “social distinction,” they wrongly characterize the social group as too “amorphous” or “vague” to be particularized. In that manner, the BIA and many IJs can manipulate the law to reject proper “particular social groups” and keep their White Nationalist anti-asylum “handlers” at the DOJ happy, which also helps them retain their positions.
It will be interesting to see how that works out for them if, as many of us have recommended, Judge Garland actually puts some Appellate Judges on the BIA who understand asylum law and start applying it fairly, correctly, and in accordance with due process?
In making EOIR appointments, the Obama Administration generally eschewed the “best and brightest” with expertise representing asylum seekers and applying the UN Convention and the Refugee Act of 1980 in accordance with their humanitarian intent, rather as ways to advance a restrictionist agenda of deterring asylum seekers by wrongfully denying their claims. After all, how many asylum seekers are fortunate enough to have a good lawyer like Abdoul Aziz Konare represent them in their asylum cases? Not very many!
No, the average asylum seeker, many in detention and without adequate access to counsel or research materials, gets railroaded out with gobbledegook like “Chevron deference,” too “amorphous,” not “socially visible” and citations to cases even experienced Federal Judges often don’t correctly understand. So, getting asylum tends to depend not so much on the strength of your claim (many of which should be pretty easily grantable unless the IJ is “programmed to deny” — the norm these days), but on your lawyer, your IJ, and whether you are fortunate enough to have access to a thoughtful Article III judge like Judge Quattlebaum in this case. He took the time to figure out the bogus nature of the DOJ’s standard “BS arguments.”
Unfortunately, many Federal Judges would have just “punted” by accepting the “Chevron deference” argument for a “quick kill” without the need for much thought or analysis. After all, Court of Appeals Judges also like to “keep their dockets moving” and what easier victim to “throw under the bus” than an asylum applicant who is going to be deported to a place where he or she will be too busy fighting to stay alive to reflect on the deteriorating quality and lack of concern for fairness in the U.S. Judicial system.
The Trump kakistocracy actually went a long way toward convincing the world that the once widely admired U.S. Justice system is now little more than a “third world sham” — controlled by nationalist politicos, programmed to reject, deny, dehumanize, and operated largely for the exclusive benefit of the rich white ruling class.
I hope that “Team Garland” will “End the EOIR Clown Show” 🤡 and restore integrity to our system. But, so far, it bumbles along chewing up and spitting out hope, humanity, and lives, while mocking any normal understanding of “justice” on a daily basis. Not something I’d want on my watch!
Supremes Sign Death Warrants For Vulnerable Refugees, Trash Refugee Act of 1980Dumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under license“Justice” Star Chamber Style
This is part of What We Learned, a series of reflections on the meaning and legacy of the Trump years.
One of the last things the Trump administration did, while it still had the power to do it, was reportedly kidnap a 9-year-old boy from his family. Customs and Border Protection officials at San Francisco International Airport denied entry to 19-year-old Christian Laporte and his younger brother, Vladimir Fardin, traveling from Haiti on U.S.-issued student and tourist visas respectively last Sunday—and then separated them from each other, declared Vladimir to therefore be an unaccompanied minor, and shipped him off to a detention center.
This was, by this point in Donald Trump’s term, not particularly surprising. Child abuse was at the center of the country’s immigration policy for these past four years, part of an intentional effort to scare people away from trying to come here. Hundreds of children disappeared into custody with no effort to keep track of them or reunite them with their families. A regime that had already been inhumane under President Obama, pushing migrants toward deadly desert crossings, turned fully malignant, with federal agents destroying water supplies and prosecutors targeting humanitarian workers. Asylum laws were cast aside.
On one level, this was straightforwardly racist, joining the goals of white nationalist policymakers like Stephen Miller to the daily bigotry of many border patrol officers. Rhetorically and conceptually, though, it was an effort to roll back the consensus that the United States is a nation of immigrants. The attack extended to legally documented immigration and residency, and on to citizenship itself, breaking precedent to strip people of what had seemed like a secure membership in the nation.
As Adam Serwer indelibly wrote, the cruelty of this was the point. The politics of Trumpism were built around white people sharing in rituals of viciousness and exclusion, coming together to follow their leader’s rejection of their designated enemies and to revel in how far things would go.
But the longer the administration wore on, the more the cruelty seemed to have another, horrifyingly practical point behind it. Trumpism was not just testing how hateful the country could be. It was exploring the limits of America’s capacity for indifference.
By the end, there were no limits to be found. The people thrown into detention at the border or deported at random may have been the first to be treated as nonpersons, but they soon had more company than anyone could count. Hurricane Maria hit U.S. territory in Puerto Rico, and the administration simply failed to respond, leaving hundreds and then thousands of people to die. It was Katrina all over again, except it wasn’t: No real lasting blame attached itself to the government’s deadly failure. The death toll rarely made it to the top of any lists of the president’s wrongdoing.
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Read the rest of the article t the link.
Readers of Courtside over the past few years know all about this: “Dred Scottification” — dehumanization of “the other” — often the most vulnerable among us.
It’s the the basic policy of large numbers of GOP politicos, many Federal Judges (including, disgracefully, GOP-appointed Supremes who routinely hide their inhumanity behind wooden, wrong-headed legalisms and complete gobbledygook designed to screen them from the stench of decaying humanity they have betrayed), lots of bureaucrats, and about 74 million American voters who voted to retain a cruel, incompetent, neo-Nazi and his regime based on 30,500 outrageous lies and false narratives, most of them overtly racist, misogynist, bigoted, dehumanizing, or all all of the foregoing.
These are NOT “differences of opinion” or “conservative v liberal philosophy.” Not by any means! They are differences in humanity: how we value truth, justice, and the essence of our fellow humans’ right to exist.
The good news is that there were at least seven million more of those of us willing to give humanity a shot. But, coming to an “equilibrium” in a democracy where nearly half the voting population rejects the basic principles of democracy and indeed the humanity of much of our majority and most of the world beyond us, won’t be easy.
As the Migration Policy Institute has shown, the Trump-era changes to the immigration system numbered in the hundreds and consisted of dramatic reinterpretations of the laws alongside seemingly clerical changes, such as revised application forms for visas, higher fees and tighter deadlines in immigration courts — all to advance a maximalist enforcement agenda and slow down the ordinary gears of immigrant admissions. High-level White House advisers, working with knowledgeable allies in the Homeland Security and Justice departments, pushed out regulation after regulation to render asylum laws more restrictive and make it harder for noncitizens to present their case in immigration courts. Trump’s attorneys general exerted unprecedented authority to define asylum laws to severely limit claims by victims of domestic and gang violence, and to constrain immigration judges’ ability to grant relief and manage their dockets in a way that provides a semblance of due process.
. . . .
And yet, the new administration’s policy agenda will not be complete unless legislative proposals are accompanied by concerted executive action across the administrative state, and not just because ambitious legislation on any issue faces an uphill climb in a Senate with the narrowest of Democratic majorities. Even when it comes to pass, legislation emerges from a bargain, leaving issues unaddressed, introducing new concepts to be interpreted and creating new programs that demand administration. Changing the direction of our government requires not only executive vision, but also multilayered strategies that make their way through the bureaucracy and down to the ground — along with the stamina and patience to see them through.
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THE BATTLE FOR DUE PROCESS @ JUSTICE ISN’T OVER: Flailing, Failing Department Needs A Bureaucratic House-Cleaning, Now!
By Paul Wickham Schmidt
Courtside Exclusive
Jan. 24, 2021
Read Cristina’s complete article at the link. The book that she and Adam Cox wrote The President and Immigration Law along with that of my friend and colleague Professor PhilSchrag, Baby Jails, should be required reading for all incoming Biden-Harris officials.
A “democracy” that doesn’t understand how it came to run prisons for vulnerable kids and star chambers for legal asylum seekers, and how to end them immediately, can expect little success in achieving social justice, promoting economic equality and prosperity for all, or leading and advocating for democracy abroad.
It all starts with immigration. I can draw a straight line from the Muslim Ban, to the Roberts’ Court’s disgraceful and cowardly abdication of responsibility to stop it in its tracks (grotesquely undermining the many lower court Federal Judges who had courageously “mapped it out for them”), to GOP politicos running around undermining our free and fair elections, to “magamorons” and other traitor/crazies storming the Capitol. Folks “get” the abdication of moral responsibility and legal accountability when it is delivered by those who should be standing up for democracy.
The failure of career civil servants at all levels to “just say no” and rebel against these outrageous failures of Constitutional governance and simple human decency, combined with a horribly deficient Supremes’ majority that abandoned both legal legitimacy and moral leadership, created a beyond dangerous pattern that came very close to toppling two centuries of the “democratic experiment” and still has the future of our democratic republic “on the ropes.”
Just look at what happened at the DOJ in the final weeks of the regime! Government officials who knew better settled for “heading off” a President’s treasonous acts rather than exposing them to the public, the Vice President, and leaders of Congress (perhaps other than treacherous co-conspirator Kevin McCarthy) who could have taken action for the immediate removal of this “clear and present threat” to our national security from the office for which he was so completely unqualified. Who knows, they might even have stopped the insurrection!
Look at the failed and ethically vapid Solicitor General’s Office (once, but no longer, one of the “Jewels in the Crown” of Government) that time and time again moved forward to defend unethical and unconstitutional policies before a willing Supremes’ majority based on patently false narratives and obvious pretexts (not very convincingly) concealing the overt racist, White Nationalist agenda of Trump, Miller, and the other neo-Nazis who had seized control of large portions of our governing machinery. Who, with the disgraceful complicity of the Supremes, turned American asylum law from the life-saving humanitarian refuge it was intended to be to instead an ugly weapon of racism, xenophobia, misogyny, child abuse, death, torture, unjust imprisonment, and overall dehumanization of the most vulnerable among us! What’s wrong with this picture? Everything!
Checks and balances and the courage and integrity of a professional career civil service are supposed to halt abuses like this, even in the face of failure of one of our two major political parties and our highest Court to act with integrity and adhere to democratic norms! But, with a few exceptions, courageous folks like U.S. Immigration Judge Ashley Tabaddor, Col. Alexander Vindman, and others like them, it did not happen over the past four years. That nearly cost us our country! (Note that Tabaddor, Vindmin, and others like them were punished, with the disgraceful treasonists from the GOP looking on and actually cheerleading, for speaking out and upholding their oaths of office.)
Buried in the carnage of the departed regime are the many lives unnecessarily lost, futures ruined, and lasting trauma — trauma that will continue to adversely affect our nation far into the future — caused by failure to stop the kakistocracy’s unconstitutional, cruel, and inhuman abuses. From intentionally inept COVID policies, to “politicizing” masks, to deaths in detention, to unlawful deportations to torture, to unfair, clearly political misapplications of the death penalty (basically “legalized murder”), to officially-sanctioned misogyny — this damage can’t be swept away overnight.
Like legislative and judicial failures, bureaucratic failure comes at a cost — a huge one! The fact that it might be largely “out of sight, out of mind” to the arrogant, largely white, privileged, ruling elites and ivory tower “High Court” jurists doesn’t mean the harm isn’t real. Just that our society has enabled some in power to look away and avoid meaningful contact with the human wreckage and lasting pain and damage they have caused and or tolerated!
Already, we can see how the Biden-Harris Administration’s inexplicable failure to “take charge” at a broken DOJ is undermining the long-overdue and well-thought-out progressive immigration agenda they announced with such fanfare. Here’s what’s come to light in just the past few days at the broken and dysfunctional DOJ:
Seeking the illegal deportation to Haiti of a mentally ill individual denied due process by the EOIR kakistocracy;
Failure to repudiate scurrilous, misogynist attacks on well-known refugee woman “Ms. A-B-“ by unqualified then “acting” AG Jeffrey Rosen;
Issuance by the “EOIR Clown Show” of more false narratives and anti-migrant “precedents” — basically delivering the “big, public middle finger” to the new Administration and the AG-designate;
Release of a blockbuster investigative report on misogyny and misconduct within the Immigration Judiciary — with no response or plan for corrective action from the DOJ;
Appointment of a bunch of bureaucratic nobodies to “caretaker” duties at the DOJ — including one quickly found by reporters — but apparently missed by the incoming Administration — to have had ties to the grotesque child abuse program run by White Nationalist former AG “Gonzo” Sessions;
Release by the IG of a report showing the role of Sessions, Rosenstein, and other DOJ officials in “official child abuse” – without any promise of accountability for past or future misconduct;
A treasonous plot by the President, a GOP Congressman, and a corrupt DOJ political hack that, although thwarted, went unreported until uncovered by reporters from The NY Times!
To state the obvious, why weren’t folks with known integrity, courage, and ability — professional decision-makers with track records of upholding our Constitution — like Judge Ashley Tabaddor and her colleagues in the leadership of the National Association of Immigration Judges — put in charge of the DOJ debacle to “ride herd”on this mess, restore some integrity, and prevent any more damage until “Team Garland” arrives? Few folks at Justice know as much about the “inept DOJ bureaucracy and failure of justice at Justice” than the NAIJ leadership which has been “at war” with the kakistocracy for years!
The solutions are still out there. But, it will take boldness, courage, and some “quick thinking outside the box” by “Team Garland” to get this completely (and unnecessarily) unacceptable situation under control!
That begins with an immediate clean-up of the “immigration kakistocracy/bureaucracy” throughout Justice — starting with the “EOIR Clown Shown.” Bring in the immigration/human rights/due process experts and let them start fixing the problems!
Stop defending the unprofessional garbage being aimlessly tossed into the Federal Courts by the EOIR White Nationalist deportation factory still running under orders from Miller and Hamilton. Have all these cases reviewed by experts in immigration/human rights/due process and racial justice!
Fire anyone in the SG’s office who presents bogus arguments concerning fake “immigration emergencies” and illegally promulgated “regulations” to the Supremes. End the unethical practice of using one-sided “precedents” to develop anti-immigrant “litigating positions” for OIL.
Stop appointing unqualified individuals to precious Immigration Judgeships. Remove the entire BIA and replace it with real expert appellate judges unswervingly committed to fundamental fairness and due process for all. Replace “worst practices” with “best practices.” Stop the “Aimless Docket Reshuffling” at EOIR. Cut the largely self-created Immigration Court “backlog.”
Bring in Professor Rodriguez, Professor Schrag, Professor Ingrid Eagly, Judge Dana Marks (who argued and won the landmark Cardoza-Fonseca case before the Supremes), Judge (and former BIA Judge and high-ranking DOJ official) Noel Brennan, Judge Amiena Khan, Judge Mimi Tsankov, Marielena Hincapie (NCIJ), Dean Kevin Johnson (UC Davis Law), and a “due process brain trust” of others like them! Let them start “kicking some tail,” fixing the problems, and restoring sanity, humanity, and due process to the broken immigration kakistocracy at DOJ. Now, before any more lives are lost or futures irrevocably ruined!
Let “practical scholars” like Rodriguez, Schrag, Eagly, and Johnson “turn their research and great thoughts into action.” “A little less talk, and a lot more action,” as Toby Keith would say!
The NDPA has already shown that it can out-litigate and out-strategize the Government immigration kakistocracy. In many ways, only the abject failure of the Supremes’ majority to stand up for the Constitution, rule of law, and human decency has prevented the NDPA from completely annihilating the kakistocracy, wiping out all of its misdeeds by judicial decree, and perhaps even holding criminals like Miller and Wolf accountable for their “crimes against humanity.”
Judge Garland is a smart person. The “smart thing” would be to get the “NDPA on the inside at Justice,” creating order from chaos and re-establishing justice @ Justice now!
Otherwise, smart or not, he’s likely to spend the bulk of his tenure as a “caption” on the never-ending avalanche of new legal actions filed against the deadly immigration bureaucracy by the NDPA. Because, I promise that the fight for due process in immigration and human rights isn’t over! It has just begun!
There is lots to be gained by working together to solve these problems. But if it takes litigation, continuing conflict, and a never-ending political and press crusade against an Administration I otherwise support to get the job done, so be it!
The battle isn’t over until the kakistocracy is removed, at every level, and due process, fundamental fairness, equal justice, and respect for human dignity — all both Constitutional and human rights — become a reality for all persons in America (including those physically present at our borders) rather than just the cruel, unfulfilled promises they have been to date.
Due Process Can’t And Won’t Wait! Due Process Forever!
PWS
01-24-22
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GO PACK GO!
Green Bay PackersAaron Rodgers Quarterback Green Bay PackersDevante Adams Wide Receiver Green Bay Packers
PRESIDENT BIDEN has served notice that his ambitious immigration plan is in the first rank of his priorities. Some of his program will be immediately implementable; some may get bogged down in Congress, where many Republicans will regard it as an occasion to brandish the word “amnesty,” red meat for their bases. No matter. Mr. Biden’s plan is in keeping with the United States’ best traditions. It responds to the challenge of population stagnation. It would reverse his predecessor’s extravagantly cruel policies. And it is now clear that when it comes to immigration, Mr. Biden is all in.
That courageous stance was not necessarily expected or politically expedient. Unity was the new president’s campaign theme and inaugural touchstone, yet few issues are as divisive as immigration. His evident readiness to tap his modest reserves of political capital for a slugfest on immigration is a signal that the United States has returned to its roots as a beacon for refugees and a humanitarian role model among nations.
The plan is also smart. The U.S. population growth rate in the just-ended decade was the lowest since the first national census in 1790, according to the Brookings Institution — lower even than during the Great Depression of the 1930s. The number of Americans below the age of 18 actually shrank in the 2010s, by more than 1 million.
That stagnation, the product of an aging population and historically low fertility rates, cannot be reversed by immigration alone. But it will certainly be exacerbated, and has been in the past four years, by a policy hostile to newcomers. In President Donald Trump’s penultimate year in office, annual net immigration fell below 600,000, the lowest level in decades; it was more than 1 million in the final years of the Obama presidency.
What’s more, by proposing an eight-year path to citizenship for most of the nation’s 11 million unauthorized migrants — the centerpiece of his plan — Mr. Biden is attempting to align law and reality. By 2029, when they would be eligible for citizenship, most will have been in the United States for more than a quarter-century. At least 4 million are essential workers in construction, food processing, groceries, restaurants, agriculture and transportation — doing jobs critical to practically every American.
Mr. Biden is moving quickly where he can — fully reinstating the Obama-era program providing work permits and deportation protection for “dreamers,” young migrants brought to this country by their parents; rescinding Mr. Trump’s 2017 travel ban from majority-Muslim countries; halting construction of the southern border wall; and reining in the Trump administration’s aggressive deportation policies. He has also signaled he will increase annual refugee admissions, which Mr. Trump poleaxed, and scrap a Trump administration rule that denies green cards to immigrants deemed likely to use public benefits such as food stamps.
Other measures will require congressional action. Under legislation Mr. Biden is sending to Congress, green cards conferring legal permanent residency would be granted to dreamers as well as to immigrants from strife- and disaster-wracked nations who have been here for years.
The president is also pushing tougher border security — in recognition that the new administration is not inviting a wave of new migrants, still less amid a pandemic — though not as a precondition for his immigration reforms. His more impactful, long-term strategy to dissuade new waves of illegal immigrants is a concerted aid effort to boost economies and contain crime in Central America.
Mr. Biden has laid out an immigration program that would genuinely put America first.
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The GOP White Nationalists/Nativists/White Supremacists are shaking in their cowardly boots. Why?
Because in a diverse meritocracy with equal justice for all and government in the true national interest they would lose their corrupt advantages and disproportionate power over the lives and the future of the majority of Americans who don’t share their repulsive, racist views and did not support their traitor insurrectionist Fuhrer in his attempt to undermine democracy, disenfranchise voters (targeting disproportionately legitimate voters of color for disenfranchisement, while shrugging off the actions, antics, and influence of “magamoron” Q-Anon crazies, conspiracy theorists, and other fringe haters that he and his party relied upon to maintain power), and take over our government by force!
Four things that the GOP fears above all else: 1) democracy, 2) accountability, 3) equality, 4) truth!
President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize our Immigration System
The U.S. Citizenship Act of 2021 establishes a new system to responsibly manage and secure our border, keep our families and communities safe, and better manage migration across the Hemisphere
President Biden is sending a bill to Congress on day one to restore humanity and American values to our immigration system. The bill provides hardworking people who enrich our communities every day and who have lived here for years, in some cases for decades, an opportunity to earn citizenship. The legislation modernizes our immigration system, and prioritizes keeping families together, growing our economy, responsibly managing the border with smart investments, addressing the root causes of migration from Central America, and ensuring that the United States remains a refuge for those fleeing persecution. The bill will stimulate our economy while ensuring that every worker is protected. The bill creates an earned path to citizenship for our immigrant neighbors, colleagues, parishioners, community leaders, friends, and loved ones—including Dreamers and the essential workers who have risked their lives to serve and protect American communities.
The U.S. Citizenship Act will:
PROVIDE PATHWAYS TO CITIZENSHIP & STRENGTHEN LABOR PROTECTIONS
● Create an earned roadmap to citizenship for undocumented individuals. The bill allows undocumented individuals to apply for temporary legal status, with
the ability to apply for green cards after five years if they pass criminal and national security background checks and pay their taxes. Dreamers, TPS holders, and immigrant farmworkers who meet specific requirements are eligible for green cards immediately under the legislation. After three years, all green card holders who pass additional background checks and demonstrate knowledge of English and U.S. civics can apply to become citizens. Applicants must be physically present in the United States on or before January 1, 2021. The Secretary of the Department of Homeland Security (DHS) may waive the presence requirement for those deported on or after January 20, 2017 who were physically present for at least three years prior to removal for family unity and other humanitarian purposes. Lastly, the bill further recognizes America as a nation of immigrants by changing the word “alien” to “noncitizen” in our immigration laws.
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● Keep families together. The bill reforms the family-based immigration system by clearing backlogs, recapturing unused visas, eliminating lengthy wait times, and increasing per-country visa caps. It also eliminates the so-called “3 and 10-year bars,” and other provisions that keep families apart. The bill further supports familes by more explicitly including permanent partnerships and eliminating discrimination facing LGBTQ+ families. It also provides protections for orphans, widows, children, and Filipino veterans who fought alongside the United States in World War II. Lastly, the bill allows immigrants with approved family-sponsorship petitions to join family in the United States on a temporary basis while they wait for green cards to become available.
● Embrace diversity. The bill includes the NO BAN Act that prohibits discrimination based on religion and limits presidential authority to issue future bans. The bill also increases Diversity Visas to 80,000 from 55,000.
● Promote immigrant and refugee integration and citizenship. The bill provides new funding to state and local governments, private organizations, educational institutions, community-based organizations, and not-for-profit organizations to expand programs to promote integration and inclusion, increase English-language instruction, and provide assistance to individuals seeking to become citizens.
● Grow our economy. This bill clears employment-based visa backlogs, recaptures unused visas, reduces lengthy wait times, and eliminates per-country visa caps. The bill makes it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States; improves access to green cards for workers in lower-wage sectors; and eliminates other unnecessary hurdles for employment-based green cards. The bill provides dependents of H-1B visa holders work authorization, and children are prevented from “aging out” of the system. The bill also creates a pilot program to stimulate regional economic development, gives DHS the authority to adjust green cards based on macroeconomic conditions, and incentivizes higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American workers.
● Protect workers from exploitation and improve the employment verification process. The bill requires that DHS and the Department of Labor establish a commission involving labor, employer, and civil rights organizations to make recommendations for improving the employment verification process. Workers who suffer serious labor violations and cooperate with worker protection agencies will be granted greater access to U visa relief. The bill protects workers who are victims of workplace retaliation from deportation in order to allow labor agencies to interview these workers. It also protects migrant and seasonal workers, and increases penalties for employers who violate labor laws.
PRIORITIZE SMART BORDER CONTROLS
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● Supplement existing border resources with technology and infrastructure. The legislation builds on record budget allocations for immigration enforcement by authorizing additional funding for the Secretary of DHS to develop and implement a plan to deploy technology to expedite screening and enhance the ability to identify narcotics and other contraband at every land, air, and sea port of entry. This includes high-throughput scanning technologies to ensure that all commercial and passenger vehicles and freight rail traffic entering the United States at land ports of entry and rail-border crossings along the border undergo pre-primary scanning. It also authorizes and provides funding for plans to improve infrastructure at ports of entry to enhance the ability to process asylum seekers and detect, interdict, disrupt and prevent narcotics from entering the United States. It authorizes the DHS Secretary to develop and implement a strategy to manage and secure the southern border between ports of entry that focuses on flexible solutions and technologies that expand the ability to detect illicit activity, evaluate the effectiveness of border security operations, and be easily relocated and broken out by Border Patrol Sector. To protect privacy, the DHS Inspector General is authorized to conduct oversight to ensure that employed technology effectively serves legitimate agency purposes.
● Manage the border and protect border communities. The bill provides funding for training and continuing education to promote agent and officer safety and professionalism. It also creates a Border Community Stakeholder Advisory Committee, provides more special agents at the DHS Office of Professional Responsibility to investigate criminal and administrative misconduct, and requires the issuance of department-wide policies governing the use of force. The bill directs the Government Accountability Office (GAO) to study the impact of DHS’s authority to waive environmental and state and federal laws to expedite the construction of barriers and roads near U.S. borders and provides for additional rescue beacons to prevent needless deaths along the border. The bill authorizes and provides funding for DHS, in coordination with the Department of Health and Human Services (HHS) and nongovernmental experts, to develop guidelines and protocols for standards of care for individuals, families, and children in CBP custody.
● Crack down on criminal organizations. The bill enhances the ability to prosecute individuals involved in smuggling and trafficking networks who are responsible for the exploitation of migrants. It also expands investigations, intelligence collection and analysis pursuant to the Foreign Narcotics Kingpin Designation Act to increase sanctions against foreign narcotics traffickers, their organizations and networks. The bill also requires the Federal Bureau of Investigation (FBI), Drug Enforcement Agency (DEA) and DHS, in coordination with the Secretary of State, to improve and expand transnational anti-gang task forces in Central America.
ADDRESS ROOT CAUSES OF MIGRATION
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● Start from the source. The bill codifies and funds the President’s $4 billion four-year inter-agency plan to address the underlying causes of migration in the region, including by increasing assistance to El Salvador, Guatemala, and Honduras, conditioned on their ability to reduce the endemic corruption, violence, and poverty that causes people to flee their home countries. It also creates safe and legal channels for people to seek protection, including by establishing Designated Processing Centers throughout Central America to register and process displaced persons for refugee resettlement and other lawful migration avenues—either to the United States or other partner countries. The bill also re-institutes the Central American Minors program to reunite children with U.S. relatives and creates a Central American Family Reunification Parole Program to more quickly unite families with approved family sponsorship petitions.
● Improve the immigration courts and protect vulnerable individuals. The bill expands family case management programs, reduces immigration court backlogs, expands training for immigration judges, and improves technology for immigration courts. The bill also restores fairness and balance to our immigration system by providing judges and adjudicators with discretion to review cases and grant relief to deserving individuals. Funding is authorized for legal orientation programs and counsel for children, vulnerable individuals, and others when necessary to ensure the fair and efficient resolution of their claims. The bill also provides funding for school districts educating unaccompanied children, while clarifying sponsor responsibilities for such children.
● Support asylum seekers and other vulnerable populations. The bill eliminates the one-year deadline for filing asylum claims and provides funding to reduce asylum application backlogs. It also increases protections for U visa, T visa, and VAWA applicants, including by raising the cap on U visas from 10,000 to 30,000. The bill also expands protections for foreign nationals assisting U.S. troops.
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Great start!
Sure, it’s just a proposal, not enacted legislation. But, it paves the way to rapidly eliminate the 1.3 million case Immigration Court backlog largely engineered by the departed kakistocracy. Just take all the cases of those who would be covered by “earned legalization” off the dockets pending legislative action. That would immediately allow the Immigration Courts to work in “real time” on cases of asylum applicants, criminals, and those who arrive after Jan. 1, 2021.
The separate E.O. on eliminating institutionalized racial injustice should spell the “end of the line” for EOIR (mis)management, the BIA, DHS (mis)management, and most of the hierarchy of the Solicitor General’s Office, the Office of Immigration Litigation, the Office of Legal Counsel, the Office of Legal Policy, the Office of Legislative Affairs and all other parts of the DOJ involved in the “Dred Scottification” of immigrants, asylum seekers, African Americans, and other persons of color. The money saved by ending the absurd “border wall stunt” can be put to better use in reforming the immigration system and promoting universal representation of those in Immigration Court.
Sure, there will be pushback. But racist fascism, White Nationalism, and anti-democracy activism must be eliminated from the Executive Branch, starting on Day 1. Time to start taking names and kicking tail of those who aided and abetted the White Nationalist insurrection.
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
A Parting Shot At Women
As the Trump Administration comes to an end, let’s remember how it began. On the day following the inauguration, millions participated in Women’s Marches around the world. There is sadly no need to list the reasons why women in particular would feel the need to respond in such a way to a Trump presidency.
It was therefore no surprise that Trump’s first Attorney General issued a decision intended to strip protection under our asylum laws from women who are victims of domestic violence. That decision, Matter of A-B-, was so soundly rejected by U.S. District Court Judge Emmet Sullivan that the U.S. Court of Appeals for the Sixth Circuit relied on his reasoning to conclude that Sessions’s decision had been abrogated. The First and Ninth Circuits further rejected Sessions’s view that the particular social group relied upon in A-B- was legally unsound. The Eighth Circuit rejected Sessions’s description of the standard for proving a government’s inability or unwillingness to control an abusive spouse, for example, as requiring evidence that the government condones his actions, or is completely helpless to prevent them.
The administration tried to codify the views expressed in A-B- and in another case, Matter of L-E-A-, by issuing proposed regulation designed to completely rewrite our asylum laws, with the purpose of making it virtually impossible for domestic violence and gang violence victims to qualify for asylum protection. Those rules, which were rushed out with very little time for public comment, were blocked on January 8 by a U.S. District Court judge.
There are at least two important cases presently before the U.S. Court of Appeals for the Fourth Circuit involving the issues raised in both A-B- and L-E-A-. Had these decisions been issued by, e.g., U.S. District Court judges, the Department of Justice would be representing the government (in the form of the Attorney General), but not the judge who issued the decision below. But as to A-B-, the government attorneys represent an Attorney General acting as judge, and a judge with extraordinary powers. As a result of those powers, the official presently filling the position on an acting basis (who had come to the job a few weeks earlier from the Department of Transportation with absolutely no background in immigration law) was able to unilaterally issue a new decision in the case, in an attempt to shore up issues of concern before the circuits.
So what does the new decision of the recent Deputy Transportation Secretary say? It addresses two issues: the “condone or complete helplessness” language used by Sessions, and the proper test for when persecution can be said to be “on account of” an asylum seeker’s gender, familial relationship, or other group membership.
As to the first issue, the Acting AG now states that Sessions did not change the preexisting legal standard for determining whether a government is unwilling or unable to provide protection. The Acting AG accomplishes this by explaining that “condone” doesn’t actually mean condone, and that “complete helplessness” doesn’t mean complete helplessness.
I’m not sure of the need for what follows on the topic. Perhaps there is an Attorney General Style Guide which advises to never be succinct when there are so many more exciting options available. Besides from sounding overly defensive in explaining why Sessions chose to use terms that sure sounded like they raised the standard in order to supposedly signal that he was doing no such thing, the decision also feels the need to remind us of what that preexisting standard is, in spite of the fact that no one other than perhaps a Deputy Transportation Secretary pretending to be an asylum law scholar is in need of such a recap. Yes, we understand there are no crime-free societies, and the failure to prevent every single crime from occurring is not “unwilling or unable.” No court has ever said that it was. Let’s move on.
The second part of this new A-B- decision addresses a conflict between the views of the Fourth Circuit and the BIA in regard to when a nexus is established. This issue arises in all asylum claims, but the BIA addressed it in a case, Matter of L-E-A-, in which an asylum applicant was threatened by a violent gang because it wished to sell drugs in a store owned by his father. The question was whether the asylum seeker’s fear of harm from the gang was “on account of” his familial relationship to his father.
Our laws recognize that persecution can arise for multiple reasons. A 2005 statute requires a showing that one of the five specific bases for a grant of asylum (i.e. race, religion, nationality, membership in a particular social group, or political opinion) must form “one central reason” for the harm. The BIA itself has defined this to mean that the reason was more than “incidental, tangential, superficial, or subordinate to another reason.”
In the context of family membership, the Fourth Circuit has repeatedly held that this “one central reason” test is satisfied where the family membership formed the reason why the asylum seeker, and not someone else, was targeted for harm. Using the L-E-A- example, the gang members were obviously motivated most of all by their desire for financial gain from the selling of the drugs in the store. But under the Fourth Circuit’s test, the family relationship would also be “one central reason” for the harm, because had the asylum seeker not been the son of the store owner, he wouldn’t have been the one targeted. This is known as a “but for” test, as in “but for” the familial relationship, the asylum seeker wouldn’t have been the one harmed
In L-E-A-, the BIA recognized the Fourth Circuit’s interpretation in a footnote, but added that the case it was deciding didn’t arise under that court’s jurisdiction. The BIA thus went on to create its own test, requiring evidence of an actual animus towards the family. The BIA provided as an example of its new test the assassination of the Romanov family in 1917 Russia, stating that while there were political reasons for the murders, it would be difficult to say that family membership was not one central reason for their persecution.
I’m going to create my own rule here: when you are proposing a particular legal standard, and the judge asks for an example, and all you can come up with is the Romanov family in 1917 Russia, you’re skating on thin ice. The other thing about legal standards is in order for judges to apply them and appeals courts to review them, they have to be understandable. I’m not a student of Russian history, but it would seem to me that (as the BIA acknowledged), the main motive in assassinating the Romanovs was political. I’m not sure what jumps out in that example as evidence of animus towards the family itself. How would one apply the Romanov test to anyone ever appearing in Immigration Court? By comparison, the Fourth Circuit’s test is a very clear one that is easy to apply and review on appeal.
Of course, this is just my humble opinion. The assistant Transportation czar feels differently. Drawing on his extensive minutes of experience in the complex field of asylum, he concluded: “I believe that the Fourth Circuit’s recent interpretation of ‘one central reason’ is not the best reading of the statutory language.”
I am guessing that by saying this in a precedent decision in the final days of this Administration, Transportation guy is hoping that the Fourth Circuit will feel compelled to accord his opinion Brand X deference. Legal scholar Geoffrey Hoffman has pointed out that no such deference is due, as the requirement that the statute be ambiguous is not satisfied. (Geoffrey’s excellent takedown of this same decision can be found here, and is well worth reading).
But the term in question, “on account of,” is also not one requiring agency expertise, which is of course a main justification for judicial deference. It is instead a legal standard not specific to asylum or immigration law.
For example, last June, the Supreme Court decided Bostock v. Clayton County, a case involving employment discrimination based on sexual orientation or identity. In a 6-3 decision authored by Justice Gorsuch, the Court explained that the statutory term in question, “because of,” carries the same legal meaning as “on account of,” the relevant phrase for asylum purposes. In determining nexus, the Court stated:
It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.
That last sentence – “if changing the employee’s sex would have yielded a different choice by the employer” – is essentially the same “but for” standard applied by the Fourth Circuit in the asylum context. What would give an Acting Attorney General the authority to hold otherwise?
A conservative commentator observed a difference between the discrimination required in Bostock and the persecution required in L-E-A-, stating that discrimination can involve favoring one group without necessarily hating the group being passed over, whereas persecuting someone requires an animus towards them.
However, the BIA recognized nearly 25 years ago that persecution can be found in harm resulting from actions intended to overcome a characteristic of the victim, and that no subjective punitive or malignant intent is required. The BIA acknowledged this in L-E-A-, noting that a punitive intent is not required.
Furthermore, the legislative history of the REAL ID Act (which created the requirement in question) shows that Congress amended the original proposed requirement that the protected ground be “the central motive” for the harm, to the final language requiring that it be “one central reason.”1 While animus would fall under “motive,” “reason” covers the type of causation central to the Fourth Circuit’s “but for” test. The history seems to undermine the former Transportation official’s claim that under the Fourth Circuit’s test, the “one central reason” language would be “mere surplusage.” This is untrue, as that additional language serves to clarify that the reason can be one of many (as opposed to “the” reason), and that the relevant issue is reason and not motive. Perhaps the author required more than three weeks at the Department of Justice to understand this.
I write this on the last full day of the Trump presidency. Let’s hope that all of the decisions issued by this administration will be vacated shortly; that the BIA will soon be comprised of fair and independent immigration law scholars (preferably as part of an independent Article I Immigration Court), and that future posts will document a much more enlightened era of asylum adjudication.
Note:
1. See Deborah Anker, The Law of Asylum in the United States (Thomson Reuters) at § 5:12.See also Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124 (3d Cir. 2009) (recounting the legislative history and rejecting a dominance test for determining “one central reason”).
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Copyright 2021 Jeffrey S. Chase. All rights reserved.
Republished by permission.
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Judge Garland and his team must address systemic failures at the dysfunctional DOJ well beyond the festering, unconstitutional mess @ EOIR (“The Clown Show” 🤡) that requires an immediate “remove and replace.” The ethical failings, bad lawyering, dilatory litigating tactics, anti-American attitudes, racism, misogyny, intellectual dishonesty, coddling of authoritarianism, and complicity in the face of tyranny are in every corner of the disgraced Department.
Withdrawal of every bogus, biased, unconstitutional, racist- motivated “precedent” issued during the Trump regime and turning the proper development and fair interpretation of immigration and asylum laws over to a “new BIA” — consisting of real judges who are widely recognized and respected experts in immigration, human rights, and due process — must be a “day one” priority for Judge Garland and his team.
The Clown Show🤡🦹🏿♂️ that has made mincemeat out of American justice — not to mention legal ethics and human morality — must go! And, the problem goes far beyond the “Falls Church Circus!”🎪🤹
🇺🇸⚖️🗽Due Process Forever! Institutionalized misogyny, 🤮☠️never! No more Jeffrey Rosens @ DOJ —ever!
And, firms like Kirkland & Ellis need to think twice about re-employing a sleazy “empty suit” like Rosen who represents everything that is wrong with American law in the 21st century! Public disgrace should not be mistaken for “public service.”
“Normalizing” political toadies, “senior executives,” government “lawyers,” and other “public officials” who carried the water and willingly (often, as in Rosen’s case, enthusiastically, gratuitously, and totally unnecessarily) advanced the objectives of a White Nationalist, anti-American regime whose disgraceful and toxic rule ended in a violent, unhinged, failed insurrection against our democracy encouraged by a Traitor-President, his supporters, and members of the GOP would be a HUGE, perhaps fatal, mistake!
Make no mistake about it! Brave, determined refugee women like Ms. A-B- and her lawyers (superstars like Professor Karen Musalo and Blaine Bookey of the Center for Gender and Refugee Studies) are the true American heroes 🦸🏻 of the resistance to White Nationalist, racist, xenophobic policies of cruelty, hate, and disparaging of the rule of law. Toadies and traitors like Rosen are the eternal villains!🦹🏿♂️ Picking on refugees on the way out the door is an act of supreme cowardice that will live in infamy!🐓🤮
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”Trump Regime“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
CLINIC v. EOIR, USDC D DC, 01-18-21 (Judge Amit P. Mehta)
KEY QUOTE:
The court holds that EOIR acted arbitrarily and capriciously by disregarding the Final Rule’s impact on legal service providers and their capacity to provide legal services to persons subject to removal proceedings. EOIR was obligated to address these concerns as part of the notice-and-comment process but it failed to do so. In short, EOIR “entirely failed to consider an important aspect of the problem.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. (State Farm), 463 U.S. 29, 43 (1983). The court also finds that, absent equitable relief, Plaintiffs will suffer irreparable harm, and that the balance of the equities and the public interest favor staying the effective date of a portion of the Final Rule.
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Kind of says it all!
Congrats to the heroes at CLINIC and their NDPA colleagues!
Michelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network, Inc. (“CLINIC”)
And, while you’re at it, Judge Garland, you must examine the role of the sleazy DOJ lawyers who mounted an essentially frivolous defense for this nonsense in Federal Court. Sadly, you’re looking at systemic failure here, as well as a totally disrespectful and unwarranted effort to “beat the clock” in implementing the Miller/Hamilton White Nationalist, racist, anti-due-process, xenophobic agenda!
Obviously, EOIR cut corners and tried to rush these bogus changes into effect before the well-established “end date” of the Trump kakistocracy on Jan. 20, 2020. EOIR also of acted in full knowledge that the incoming Biden Administration would go a “different direction” on immigration matters.
In plain terms, this was an illegal bad-faith effort to undermine the incoming Biden Administration and illegally punish legal service providers by making them use time and resources in undoing the illegal mischief EOIR intentionally inflicted. This is neither “normal” nor”acceptable.” It must be forcibly and swiftly addressed by “Team Garland.”
CLINIC and their allies should be devoting resources to representing individuals in Immigration Court, not to fending off a bad-faith racist agenda sponsored by no less than a Department of “Justice” that has completely lost its way and impedes the public good.
This is a very serious ongoing national disgrace and abuse of the legal process by the DOJ. It needs to stop! Now! And those responsible for this outrage must face accountability for their unwarranted and illegal actions!
🇺🇸⚖️🗽Due Process Forever! The EOIR Clown Show 🤡🦹🏿♂️☠️ Never!
President-elect Joe Biden will roll out a sweeping overhaul of nation’s immigration laws the day he is inaugurated, including an eight-year pathway to citizenship for immigrants without legal status and an expansion of refugee admissions, along with an enforcement plan that deploys technology to patrol the border.
Biden’s legislative proposal, which will be sent to Congress on Wednesday, also includes a heavy focus on addressing the root causes of migration from Central America, a key part of Biden’s foreign policy portfolio when he served as vice president.
The centerpiece of the plan from Biden and Vice President-elect Kamala D. Harris is the eight-year pathway, which would put millions of qualifying immigrants in a temporary status for five years and then grant them a green card once they meet certain requirements such as a background check and payment of taxes. They would be able to apply for citizenship three years later.
. . . .
The focus on Central America reflects the message that Biden has relayed to senior officials in the region: that he will advocate for policy changes aimed at what drives scores of migrants there to come to the United States illegally to seek safe harbor.
“Ultimately, you cannot solve problems of migration unless you attack the root causes of what causes that migration,” one official said, pointing to the various reasons — from economic to safety — that drive migrants to flee their home countries. “He knows that in particular is the case in Central America.”
Transition officials are aware of recent reports of the increased numbers of migrants at or heading to the border in anticipation of the end of Trump’s presidency, and urged them to stay in their home countries. They emphasized that newly arriving immigrants would not qualify for the legalization program that Biden proposes.
Biden wants to move the refugee and asylum systems “back to a more humane and orderly process,” the official said. But “it’s also been made clear that that isn’t a switch you flip overnight from the 19th to the 20th, especially when you’re working with agencies and processes that have been so gutted by the previous administration.”
Biden hopes to reinstate a program granting minors from Central America temporary legal residence in the United States. The Trump administration terminated the program in August 2017, officials said. The administration also wants to set up a reunification program for Central American relatives of U.S. citizens that would allow those who have been already approved for U.S. residency to be admitted into the country, rather than waiting at home for an opening. The program would be similar to ones that existed for Cubans and Haitians but also were ended by the Trump administration.
The Biden proposal also would put in place a refugee admissions program at multiple processing centers abroad that would better help identify and screen those who would qualify to be admitted as refugees into the United States.
As for border enforcement, the plan calls on the Department of Homeland Security to develop a proposal that uses technology and other similar infrastructure to implement new security measures along the border, both at and between ports of entry. Biden has long vowed not to expand the border wall Trump has marginally extended.
“This is not a wall; this is not taking money from [the Department of Defense],” a transition official said, referring to how Trump helped to finance his wall after pledging Mexico would pay for it. “It’s a very different approach.”
. . . .
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Read the complete article at the link.
This is a welcome change from the poorly conceived, often ill-informed approach to immigration by the Obama Administration. It appears that Biden and Harris have actually “listened to the experts” and acted a accordingly.
The concentration on addressing the reality of Central American migration and dealing honestly and constructively with its root causes in a sensible and humane way is also refreshing. Using intelligence and technology to address real border security issues (as opposed to squandering resources on politically manufactured ones) also shows promise.
Julia Edwards Ainsley NBC Correspondent Justice & DHS Outside Justice Dep’t Photo: Victoria Pickering https://www.flickr.com/photos/vpickering/
Many of the latter wereenergized by the Trump/DHS program of White Nationalist racist fear-mongering and intentionally false anti-immigrant, anti-due-process narratives. That’s what “applied malicious incompetence” looks like — DHS and EOIR are two of the most egregious examples in a regime that raised it to an “art form.” It will take an aggressive and far-reaching “house cleaning” to get these agencies that have abandoned the common good and now operate “on the dark side” back on track.
The immediate “knee-jerk opposition” to rational, practical, fact-based immigration reform by notorious White Nationalist racist Sen. Tom Cotton (R-ARK) shows that Team Biden is on the right track to disavow the toxic institutionalized racism and biased policies of the Trump regime and move America along the path to racial justice and realistic, progressive immigration policies that will further the national interest and lead to a better future for all!
It’s a great, if long overdue, start to getting beyond Jim Crow and “Dred Scottification” and saving and enhancing our democracy! But, the proof will be in the results!
Biden, of course, will also face the formidable challenges of dealing with the human carnage left behind by the Trump regime’s disastrous mis-handling of COVID-19, economic inequality, the environment, racial justice, and foreign policy where American “prestige” has plummeted to levels not seen since the days of the Barbary Pirates.
He also must address a failing Federal Justice System that, particularly at its appellate levels, did not effectively stand up to the Trump regime’s unrelenting assault on human decency and American democracy. Indeed, Justice Sonia Sotomayor, a consistently competent and courageous Justice among our failing Supremes, offered this final harsh but true assessment of her GOP colleagues’ malfeasance in a death penalty case: “This is not justice.”https://www.nbcnews.com/news/latino/not-justice-justice-sonia-sotomayor-offers-fierce-dissent-death-penalty-n1254554
You could say that about almost everything in the departing, defeated White Nationalist regime!
I’ll note for the record that among other things, the Supremes’ tone-deaf majority has been responsible for letting bona fide asylum seekers rot in squalor in camps in Mexico while waiting for non-existent “due process,” and also authorized the imposition of potential death sentences and torture on asylum seekers within our jurisdiction without any whit of due process.
The GOP majority’s disgraceful failure to stand up for voting rights of African Americans, Latinos, and other voters of color has also deepened racial injustice in America and helped usher in a horrible “Jim Crow Revival” pushed, incited, and enabled by the GOP, “The Party of the Failed Insurrection.”
Any competent first-year law student might ask “How could this happen in America?” That’s a question that Roberts and his gang of fellow Trump enablers and apologists will have to answer before the “court of history!”
fl-undocumented-minors 2 – Judge Denise Slavin, former executive vice president of the National Association of Immigration Judges in an immigration courtrrom in Miami. Mike Stocker, Sun Sentinel — Judge Slavin is a member of the Round Table of Former Immigration JudgesGW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina VeraDan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)MeYilun Cheng Writer PHOTO: Twitter
From “For Undocumented Immigrants, a Shot at Lawful Residency Requires Risking It All” by Yilun Cheng in Borderless Magazine:
. . . .
The risk has become even higher in recent years as the Trump administration filled the immigration court system with hardline judges, according to Paul Schmidt, a former judge at the U.S. Immigration Court in Arlington, Virginia. For years, legal groups have urged the government to hire judges from diverse backgrounds to guarantee fairness in the courts, but the situation has only deteriorated in recent years, Schmidt said.
. . . .
“The Obama administration was just negligent,” Schmidt said, suspecting that former president Barack Obama left dozens of vacant immigration judgeships when he left the White House. “The new administration got a chance to fill those positions with a far-right judiciary.”
. . . .
“It’s very much a law enforcement-oriented and not a due process-oriented judiciary,” Schmidt said. “It’s just a bad time to be an individual with a case in the immigration court right now, with a bunch of unsympathetic judges, political hacks pulling the strings, and inconsistent COVID policies.”
. . . .
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Read Yilun’s full article at the link.
In the article, my friend and Round Table 🛡⚔️ colleague Judge Denise Slavin gives an excellent description of how “Aimless Docket Reshuffling” operates in a bogus “court” system run by political hacks with enforcement (and in the defeated “regime” racist) motivations.
“Ready to try” cases, many of which could be granted or should be closed, are shuffled off to the end of the docket, some without any notice on the day of trial when the respondent, his or her lawyer, and often witnesses who have taken the day from work arrive only to find out that their case has been “orbited” into the “outer space” of the EOIR backlog.
Meanwhile, cases of individuals who haven’t had time to get lawyers or been granted the preparation time required by due process are put at the front of the docket to make denial of their cases easier for “judges” who have been told that they are basically functionaries of DHS enforcement. Sometimes, the very same lawyers who have had their years-old prepared cases arbitrarily reset to oblivion are then improperly pressured and required to go forward with cases they haven’t had a chance to properly prepare or document.
Often, individuals whose cases are improperly “accelerated” recieve inadequate notice, resulting in carelessly issued, illegal “in absentia” orders that could result in improper removal or at least require heroic efforts by lawyers to get the case reopened and restored to the docket. Meanwhile, the bogus “no-show” statistics caused by the Government’s improper actions are used to build an intentionally false narrative that asylum seekers don’t show at their hearings.
The truth, of course, is the exact opposite: When given a chance to get competent representation and when the system is explained to them in understandable terms, asylum seekers show up for the overwhelming majority of their hearings, regardless of the ultimate result of their cases.
As cogently studied and stated by highly-respected “practical scholar” Professor Ingrid Eagly of UCLA Law and her colleague UCLA empirical researcher Steven Shafer, in a recent published study:
Contrary to claims that all immigrants abscond, our data-driven analysis reveals that 88% of all immigrants in immigration court with completed or pending removal cases over the past eleven years attended all of their court hearings. If we limit our analysis to only nondetained cases, we still find a high compliance rate: 83% of all respondents in completed or pending removal cases attended all of their hearings since 2008. Moreover, we reveal that 15% of those who were ordered deported in absentia since 2008 successfully reopened their cases and had their in absentia orders rescinded. Digging deeper, we identify three factors associated with in absentia removal: having a lawyer, applying for relief from removal (such as asylum), and court jurisdiction.
I’d be willing to bet that at least an equal number of individuals with in absentia orders are illegally deported because they aren’t knowledgeable enough to reopen their cases, or their reopening motions are wrongfully denied but they lack to resources to pursue appeals, which often involve prolonged periods of dangerous and abusive detention.
Obviously, an Administration actually interested in solving problems (presumably “Team Garland”) would “can the false narratives and bogus enforcement gimmicks” and concentrate on getting asylum seekers represented and increasing and raising the quality of judicial review of detention decisions. The regime’s immigration kakistocracy, of course, has moved in exactly the opposite direction.
Cooperation and coordination with the private, often pro bono, bar, essential to any well-functioning court system, has become non-existent. In fact, it is actively discouraged by DOJ politicos and their “management toadies” at EOIR, who often have mischaracterized the private bar as “the enemy” or out to “game” the system. Perversely, of course, the exact opposite is true. The regime’s immigration kakistocracy has tried over and over to use illegal methods and bogus narratives to illegally and unconstitutionally “game” the system against legitimate asylum seekers and their hard-working attorneys (actually, the only “players” in this sorry game trying to uphold “good government” and the rule of law.)
As a result, the only way for the private bar to be heard is by suing in the “real” Article III Federal Courts. This has resulted in a string of injunctions and TROs against EOIR and DHS misconduct, illegal regulations, and unlawful policies throughout the country, further adding to the chaos and inconsistencies. It also has clogged the Federal Courts with unnecessary litigation and frivolous, often disingenuous or unethical, “defenses to the indefensible” by DOJ lawyers.
This is how a dysfunctional “court system” that actually is a veneer for out of control enforcement and institutionalized racist xenophobia builds backlog. The corrupt “leaders” of this dysfunctional and unconstitutional mess then blame their victims for the delays caused by gross Government mismanagement. In turn, they use this “bogus scenario” to justify further unconstitutional restrictions of immigrants’ rights, due process, and judicial independence.
It’s a “scam” of the highest order! One that actually harms ☠️ and kills ⚰️ people, harasses lawyers, undermines the rule of law, and wastes taxpayer resources. One that has brought disgrace upon the DOJ and undermines the entire U.S. Justice system🏴☠️. One that Judge Garland and his incoming team at the DOJ must immediately end and totally reform, while holding accountable those responsible for this gross miscarriage of justice, fraud, waste, and abuse.
This is not “normal Government” or a question of “differing philosophies.” It’s outright fraud, intentional illegality, abuse of Government resources, and instititutionalized racism. It must be treated as such by the Biden Administration.
