"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
What fun, sending Black Cameroonian refugees back to rape, torture, and possible death! We don’t need to know much asylum law or real country conditions here at EOIR. We make it up as we go along. And, Judge Garland just lets us keep on playing “refugee roulette,” our favorite game! https://www.flickr.com/photos/rasputin243/ Creative Commons License
Nearly all of the deported people interviewed had fled Cameroon between 2017 and 2020 for reasons linked to the crisis in the Anglophone regions. Human Rights Watch research indicates that many had credible asylum claims, but due process concerns, fact-finding inaccuracies, and other issues contributed to unfair asylum decisions. Lack of impartiality by US immigration judges – who are part of the executive branch, not the independent judiciary – appeared to play a role. Nearly all of the deported Cameroonians interviewed – 35 of 41 – were assigned to judges with asylum denial rates 10 to 30 percentage points higher than the national average.
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The complete report gives a totally damning account of EOIR’s incompetence, ignorance of asylum law, poor decision making, “rigged” assignment of bad judges, and systemic bias directed against asylum seekers, primarily people of color. Although human rights conditions have continued to deteriorate in Cameroon, asylum grant rates have fluctuated dramatically depending on how the political winds at DOJ are blowing.
For example, judges denying asylum because of imaginary “improved conditions” in Cameroon falls within the realm of the absurd. No asylum expert would say that conditions have improved.
Yet, in a catastrophic ethical and legal failure, there is no BIA precedent “calling out” such grotesque errors and serving notice to the judges that it is unacceptable judicial conduct! There are hardly any recent BIA published precedents on granting asylum at all — prima facie evidence of the anti-asylum culture and institutional bias in favor of DHS Enforcement that Sessions and Barr actively cultivated and encouraged!
Even more outrageously, these same members of the “asylum deniers club” remain in their influential appellate positions under Garland! As inexplicable as it is inexcusable!
The HRF report details the wide range of dishonest devices used by EOIR to cut off valid asylum claims: bogus adverse credibility determinations; unreasonable corroboration requirements; claiming “no nexus” when the causal connection is obvious; failing to put the burden on the DHS in countrywide persecution involving the government or past persecution; bogus findings that the presence of relatives in the country negates persecution; ridiculous findings that severe harm doesn’t “rise to the level of persecution,” failure to listen to favorable evidence or rebuttal; ignoring the limitations on representation and inherent coercion involved in intentionally substandard and health threatening ICE detention, to name just some. While these corrupt methods of denying protection might be “business as usual” at EOIR “denial factories,” they have been condemned by human rights experts and many appellate courts. Yet Garland continues to act as if nothing were amiss in his “star chambers.”
This bench needs to be cleared of incompetence and anti-asylum bias and replaced with experts committed to due process and fair, impartial, and ethical applications of asylum principles. There was nothing stopping Sessions and Barr from “packing” the BIA and the trial courts with unqualified selections perceived to be willing and able to carry out their White Nationalist agenda! Likewise, there is nothing stopping Garland from “unpacking:” “cleaning house,” restoring competence, scholarly excellence, and “due process first” judging to his shattered system!
“It’s not rocket science, but ‘unpacking’ the Immigration Courts appears beyond Garland’s skill set!” “Unpacking” Photo by John Keogh Creative Commons License
All that’s missing are the will and the guts to get the job done! Perhaps that’s not unusual for yet another Dem Administration bumbling its way through immigration policy with no guiding principles, failing to connect the dots to racial justice, betraying promises to supporters, and leaving a trail of broken human lives and bodies of the innocent in its wake. But, it’s unacceptable! Totally!
Joseph A. Vail Asylum Workshop shares valuable immigration insights in the era of the Biden Administration
Retired Immigration Judge, U.S. Immigration Court and Former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt discusses growing immigration court backlogs.
Feb. 7, 2022 – More than 350 practitioners attended the annual Joseph A. Vail Asylum Workshop recently. The four-hour virtual event held on Jan. 28 was presented by the University of Houston Law Center’s Immigration Clinic and co-sponsored by Interfaith Ministries of Greater Houston. Interfaith Ministries joined this year to shed light on the plight of Afghani refugees who have settled in Houston since the government in Afghanistan collapsed and the Taliban takeover.
The goal of the workshop was to provide an update on immigration practices since President Biden took office. For example, while Biden halted the building of the border wall between the U.S. and Mexico and removed Migrant Protection Protocols (MPP) – where asylum seekers must remain on the Mexican side of the border while awaiting U.S. immigration court dates – a federal court order forced MPP to be reinstated. Immigration court backlogs continue to grow with former Board of Immigration Appeals Chairman Paul W. Schmidt predicting them reaching over 2 million by the end of 2022.
The first panel, moderated by Immigration Clinic Director Geoffrey Hoffman, explored the Biden Administration’s focus on Prosecutorial Discretion, Deferred Action for Childhood Arrivals (DACA), Migratory Protection Protocols (MPP), recent circuit court decisions, Afghan and Haitian case precedents, and immigration court backlogs.
“I hope you are emboldened to take a pro-bono client,” said Hoffman. “You can reach out to any of us on this call and use us as mentors.”
Panelist Magali Candler Suarez, principal at Suarez Candler Law, PLLC warned practitioners that Title 42 – a public health and welfare statue that gives the Center for Disease Control and Prevention the power to decide whether something like Covid-19 in a foreign country poses a serious danger of spreading in the U.S. – was being applied to Haitians in a racist manner.
“Many Haitians are being turned back at the border,” said Candler Suarez. “They are being denied the right to apply for asylum.”
The second panel, moderated by Parker Sheffy, a clinical teaching fellow at the Immigration Clinic, was a refresher on asylum, withholding of removal and CAT. Panelist Elizabeth Mendoza from the American Immigration Lawyers Association (AILA), which supports immigration attorneys in this work, spoke about challenges because of newly appointed immigration judges and evolving Covid practices.
“Unfortunately, things are in flux this month,” said Mendoza. “It’s not out of the ordinary to be given conflicting information.”
Well known former U.S. immigration judge, Jeffrey S. Chase, was the final panelist in this group and focused on the future of asylum in the U.S. “The Biden Administation issued a paper on climate change and migration,” said Chase. “[What] they were really talking about [though was] asylum and how climate change will impact that.”
A third panel offered insights on the use of experts in removal proceedings. UH Law Center Professor Rosemary Vega moderated the discussion which ranged from psychological experts to country experts and where to find them.
“The Center for Gender and Refugee Studies has a giant list of experts on many topics,” said panelist and UH Law Professor Lucas Aisenberg. “It’s the first place I go to when I’m working on a case.”
The workshop wrapped up with speakers from Interfaith Ministries of Greater Houston explaining what it is like to be a refugee from Afghanistan and how hard it has been to meet the needs of Afghan refugees that have arrived in the last year.
“Two years ago, we resettled 407 Afghan refugees,” said Martin B. Cominsky, president, and CEO of Interfaith Ministries of Greater Houston. “Since September 2021, we have resettled 11,081 refugees.” He implored practitioners on the call to help in any way they can.
The Joseph A. Vail Asylum Workshop has been held annually since 2014 in memory of the University of Houston Law Center Immigration Clinic’s founder. Since the clinic’s inception in 1999, it has become one of the largest in the nation, specializing in handling asylum applications for victims of torture and persecution, representing victims of domestic violence, human trafficking, and crime, and helping those fleeing civil war, genocide, or political repression. The clinic has served over 2,000 individuals who otherwise could not afford legal services.
For a full list of speakers at this year’s event, click here.
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“Immigration court backlogs continue to grow with former Board of Immigration Appeals Chairman Paul W. Schmidt predicting them reaching over 2 million by the end of 2022.”
“Aimless Docket Reshuffling” is thriving @ Garland’s EOIR. Instead of gimmicks designed to “prioritize for denial and deterrence” (how about those “engineered in absentia dockets?”) why not work with the private bar and DHS to prioritize at both the Asylum Office and EOIR those with the most compelling cases from countries where refugee flows are well-documented?
For example, why not “prioritize” represented Uyghur and Afghani cases which should be “slam dunk” asylum grants? What’s the purpose of making folks who are going to be part of our society unnecessarily spend years in limbo?
Is anybody in the Biden Administration actually planning for a possible human rights catastrophe, or just waiting for it to happen and then declaring yet another “migration emergency.”
Contrary to the uninformed view of many, backlogs aren’t just a workload problem or a hindrance to enforcement. There are huge human, psychological, economic, societal, and institutional costs with maintaining large uncontrolled backlogs.
Most of those costs fall on the individuals with strong, likely winning cases who constantly are “orbited to the end of the line” to accommodate ever-changing, ill-advised, enforcement agendas and misguided “quick fix” initiatives. That’s so that DHS and DOJ can misuse the legal system as a deterrent — by prioritizing the cases they think they can deny without much due process to “send messages” about the futility of asking for protection or asserting rights in the U.S. legal system! And, those with strong cases (and their attorneys) “twist in the wind” as denials and deterrence are prioritized.
Trying to prioritize “bogus denials” (often without hearings, lawyers, time to prepare, or careful expert judging) also creates false statistical profiles suggesting, quite dishonestly, that there is no merit to most cases. These false narratives, in turn, are picked up and repeated by the media, usually without critical examination.
Like the “Big Lie,” they eventually develop “a life of their own” simply by repetition. When occasionally “caught in action” by Article IIIs, the resulting backlog bolstering remands and “restarts” are inevitably blamed on the individuals (the victims), rather than the systematic Government incompetence that is truly responsible!
The truth is quite different from the DOJ/DHS myths.Over the years, despite facing a chronically unfair system intentionally skewed against them, some hostile or poorly qualified Immigration Judges and Appellate IJs, and wildly inconsistent results on similar cases before different judges (so-called “Refugee Roulette”), asylum seekers have won from 30% to more than 50% of the time when they actually receive an opportunity for a full, individual merits determination of their claims.
But, getting that individual hearing has proved challenging in a system that constantly puts expediency and enforcement before due process, fundamental fairness, and human dignity! No matter how the Government tries to hide it, that means that there lots of bona fide asylum seekers out there whose cases are languishing in a broken system.
The creation of the USCIS Asylum Office was supposed to be a way of dealing with this issue through so-called affirmative applications and “quick approvals” of meritorious cases. But, during the Trump Administration even that flawed system was intentionally and maliciously “dumbed down,” “de-functionalized,” “re-prioritized,” and hopelessly backlogged. It was so bad that the Asylum Officers’ Union actually sued the Trump Administration for acting illegally.
More “gimmicks” like Garland’s failed “dedicated dockets” won’t fix his dysfunctional system. Fundamental leadership, personnel, substantive quality, procedural, and “cultural” changes are necessary to address backlogs while achieving due process and fundamental fairness at EOIR. Ironically, that was once the “EOIR Vision.” ⚖️ It’s too bad, actually tragic, Garland doesn’t share it!🤯
Under Trump, asylum seekers sent to Mexico were often confused and adrift, unsure how to find legal help or return for their U.S. court appointments. They were visible on the streets of Mexican border cities and were easy targets for criminal gangs.
Marysol Castro, an attorney with El Paso’s Diocesan Migrant and Refugee Services who provides legal aid to asylum seekers in MPP, said the program’s return under Biden was a “relief” to some, “because otherwise if you go to the border you’re getting expelled” under Title 42.
Castro said new enrollees in MPP have court dates with fast-tracked hearings, unlike asylum seekers who were placed into the program under Trump and are still stuck in Mexico “with no hope.”
Mexican authorities say they received assurances from the Biden administration that migrants placed in MPP would have improved access to legal counsel. But despite the vastly lower numbers, there is still far more demand for pro bono legal services than nonprofit groups and charities can provide, Castro said.
More than two-thirds of MPP returns under Biden have been sent to Ciudad Juárez, where they are provided secure transportation through a State Department contract with the U.N. International Organization for Migration. The Mexican government houses them in a shelter set up in a converted warehouse in an industrial area of the city.
“The shelters are more restrictive,” said Victor Hugo Lopez, a Mexican official who helps oversee the program. “The migrants can request permits to go outside, but we try to keep them safe by keeping them inside.”
Dana Graber Ladek, the IOM chief of mission in Mexico, said her organization continues to oppose MPP on principle, even as it’s working with both governments to ameliorate conditions for those sent back.
“It still has a tremendous amount of negative impacts,” she said. “It’s not how asylum is supposed to work.”
Representation remains a problem, but also an opportunity, just as Nolan Rappaport said on The Hill! Fortunately, Professor Michele Pistone has been thinking in advance and has built a “scalable” program (VIISTA-Villanova) that already is turning out qualified grads who can become accredited representatives and could quickly be expanded. By coordinating scheduling of hearings with nationwide NGOs and pro bono groups and “leveraging” resources that might be available to get pro bono resources to the border without overtaxing them elsewhere with “Aimless Docket Reshuffling,” (“ADR”), the representation problem can be solved.
One good sign is that cases of those likely to be granted, Venezuela, Nicaragua, Cuba, have been prioritized which can help move dockets forward while reducing resource-wasting appeals and petitions for review. But, there is much more “low hanging fruit” here to be harvested, in my view:
Also prioritize many Haitian cases, domestic violence cases from Latin America, and family-based cases which, if represented and documented, should be relatively straightforward grants;
Replace the BIA with judges who are asylum experts and will issue the necessary positive guidance on granting asylum that will move dockets, promote consistency, and reduce appeals;
Why ignore the “waiting for Godot” cases left over from Trump’s intentionally “built to fail” program? Get them represented and scheduled for hearings;
End the failing and totally misguided “Dedicated Dockets” at EOIR. Instead, treat the MPP as the “Dedicated Docket;”
To keep backlog from further building, use ideas from the “Chen-Markowitz” plan to remove two “hopelessly aged” cases from the EOIR backlog docket for every MPP case “prioritized.” This could also free up some representation time. Go from ADRto “Rational Docket Management” (“RDM”), closely coordinated with the private bar and DHS!
Finally, keep in mind that directly contrary to the babbling of Paxton and other ignorant GOP White Nationalists, the purpose of asylum law is protection, not rejection! And, the generous standard of proof for asylum, recognized by the Supremes 35years ago, combined with existing regulatory presumptions of future persecution based on past persecution should, if honestly and expertly applied, favor asylum applicants (even if that hasn’t been true in practice). The U.S. legal system is supposed to be about guaranteeing due process fundamental fairness, and achieving justice, not to serve as a “deterrent,” “punishment,” or “enforcement tool.”
In the case of MPP, everyone in the program has already passed initial credible fear or reasonable fear screening!That means with well-qualified Immigration Judges possessing asylum expertise, new expert BIA judges, competent representation, and a focus on insuring justice by DHS Counsel, many, probably the majority of the MPP cases should be grants of asylum of other protection.
That will help clean out the camps, while addressing the serious “immigration deficit” that was engineered by Trump and Miller. It also allows refugees to become contributing members of our society, rather than rotting away and squandering their human potential in squalid camps in Mexico!
To date, most MPP cases havebeen denied with questionable due process, little obvious expertise, and a complete lack of positive, practical guidance by the BIA. This strongly suggests severe shortcomings and bias in the DHS/DOJ implementation of Remain in Mexico (“MPP”). But, it’s never too late to do better!
The Post article suggests that there have been some modest improvements in MPP under Biden. It’s time to take those to another level! The ideas and tools are out there. All that’s missing is the dynamic leadership, teamwork, and competent, creative., due-process-focused focused management.
Dr. Demetrios G. Papademetriou, president emeritus and co-founder of Migration Policy Institute, and founding president of MPI Europe, died Wednesday, January 26, at the age of 75. He was one of the world’s pre-eminent scholars and lecturers on international migration, with a rich body of scholarship shared in more than 275 books, research reports, articles and other publications. He also advised numerous governments, international organizations, civil society groups and grant-making organizations around the world on immigration and immigrant integration issues.
Papademetriou began his career as Executive Editor of the International Migration Review. After stints at Population Associates International and the U.S. Labor Department, he served as Chair of the Migration Group of the Organization for Economic Cooperation and Development. He then joined the Carnegie Endowment for International Peace’s International Migration Policy Program, which in 2001 was spun off to create the freestanding Migration Policy Institute.
He co-founded Metropolis: An International Forum for Research and Policy on Migration and Cities, which he led as International Chair for the initiative’s first five years and then served as International Chair Emeritus. He was Chair of the World Economic Forum’s Global Agenda Council on Migration (2009-11) and founding Chair of the Advisory Board of the Open Society Foundations’ International Migration Initiative (2010-15).
Papademetriou, who traveled the world lecturing and speaking at public conferences and private roundtables, also taught at the University of Maryland, Duke University, American University and the New School for Social Research.
MHC
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Demetrios was one of those amazing, charismatic, “larger than life” intellects who could “electrify” a room just by walking through the door. His ability to “connect” with audiences far beyond the world of scholarly research — and to appreciate the “human lives and heroic stories beyond the number-crunching” was unparalleled.
He led in “putting immigration scholarship on the map” — as an academic discipline, a ground-breaker in clinical legal education, and a basis for progressive migration and human rights policies in government and NGOs. Through his work at MPI, Carnegie, and other institutions, he used scholarship to spur and encourage practical “grass roots” reforms in our immigration system and, indeed, in the international migration system. Many leaders of today’s “New Due Process Army” can trace their “practical scholarly roots” to Demetrios’s inspiration and example!
Perhaps ironically, another recent posting on ImmigrationProf Blog points out how the Biden Administration has disturbingly and inexcusably failed to “cash in” on the full potential of the extraordinary growth in “applied migration scholarship” fueled by Demetrios, his long time friend and colleague former Immigration Commissioner Doris Meissner, MPI Executive Director Donald Kerwin, Jr., and other giants in the field.
Rather, the Biden Administration has veered far off-track on immigration, human rights, and social justice issues by placing politicos without immigration expertise and lacking both moral courage and belief in fundamental human values in charge of its flailing and failing immigration mess. In particular, these tone-deaf politicos have failed to “connect the dots” between immigrant justice and racial justice in America.
Not surprisingly, that has resulted in across the board failures, unfulfilled promises, and angry, disgruntled potential allies on meaningful reforms in both areas. This, in turn, has demoralized and turned off the younger, dynamic, diverse, progressive, expert immigration, human rights, and social justice leaders who are key to the future of the Democratic Party and the preservation of American democracy.
Talk about a lose-lose-lose approach! And, I guarantee that it hasn’t garnered one vote of support from “hard-liners” and “naysayers” who continue to mindlessly and dishonestly babble about “open borders!”
I’m not exaggerating here. Yesterday, I was on (Zoom) panels in Houston and DC. Both audiences and fellow panelists were stunned and outraged by the betrayal of due process, good government, expertise, common sense, and human values demonstrated by Biden’s “Miller Lite” approach to asylum at the Southern Border, the intentional mistreatment of migrants of color, and Garland’s beyond dysfunctional and chronically unjust Immigration Courts!
Particular disgust was reserved for the Administration’s intentional, continued, cowardly abuse of Haitian migrants. That, actually says more about their attitude toward true racial justice than the promise to appoint a Black Woman to the Supremes.
Welcome and long overdue as the latter is, it isn’t going to change the result on any major issue before this version of the Supremes. By contrast, the Biden Administration’s anti-Haitian policies are actually harming, dehumanizing, endangering, and even potentially killing Black migrants every day! No wonder they want to “sweep truth under the rug.”
It’s exactly the type of “applied stupidity,” willful blindness, intentional cruelty, and disdain for common sense, humanity, facts, and relevant experience that Demetrios would have resisted!
Inside the Gulag In the fine tradition of Josef Stalin, like US Presidents before him, President Biden finds it useful to have a “due process free zone” to stash people of color.
In 2017, after serving 22 years in prison for a gang-related murder I committed as a teenager, the California parole board granted me early release due to my rehabilitation and leadership while incarcerated. I was incredibly fortunate to get what I thought would be a second chance at life, and I committed myself to using my freedom to improve the world around me.
But I had to put those plans on hold. Because I was undocumented, I was immediately transferred to Immigration and Customs Enforcement custody at Yuba County Jail. The two years I spent there awaiting a decision on my immigration status were far worse than the over two decades I spent in 12 different prisons serving out my sentence.
Yuba County Jail is the last county jail under contract with the federal government to hold immigrant detainees in California. For the two years I fought my immigration case, I was psychologically, emotionally and physically abused by the Yuba County Sheriff’s Department. Some of the cells I lived in had no drinking water, others did not have working toilets and others had no lights, leaving me and other detainees in the dark all day long. My stress increased and my blood pressure became dangerously high. In 2018, after a year at the jail, I finally won my immigration case. But Department of Homeland Security attorneys appealed the judge’s decision, keeping me separated from my family, fueling my depression and suicidal thoughts. After another year of fighting the appeal, I had to make an impossible choice: Die inside Yuba County Jail or risk imminent death in my native land. After two years of inhumane treatment, I chose the latter. I signed the paperwork for self-deportation and went back to my home country.
My story is just one of thousands playing out in federally contracted county jails and privately operated ICE detention centers across the country. Despite President Biden’s campaign promise to end the use of private prisons for immigration detention, for undocumented people being held at Yuba County Jail, no relief is coming.
Yuba County Jail has a long history of violating national detention standards. From 2010 to 2021, ICE’s own detention office conducted at least eight inspections at the jail and found 171 violations. Among those violations, inspection officials determined that a sergeant, who was involved in two use-of-force incidents at the jail, participated in his own reviews. As a result of the findings, 24 members of Congress wrote a letter to Secretary of Homeland Security Alejandro Mayorkas demanding that the department terminate ICE’s contract with Yuba County. At the state level, California legislators passed SB29, forbidding local governments to enter into new detention agreements with ICE. But as The Chronicle’s reporting pointed out, in 2018, the same year SB29 took effect, ICE and Yuba County officials “quietly extended their contract” to 2099.
Why would Yuba County officials establish an indefinite contract with ICE as the rest of the state moves to end the use of its jails by federal immigration authorities? Follow the money. The contract with ICE earns the Yuba County Sheriff’s Department a minimum of just under $24,000 a day, whether or not any detainees are being held in the jail, totaling about $8.66 million per year.
When the pandemic hit, conditions inside the jail worsened. Following an April 2020 class-action lawsuit, court orders led the jail to decrease its detainee population. Thanks to the work of human right advocates and formerly detained undocumented people like myself, and others, the jail went from having 127 detainees in May 2020 to zero in late 2021. For those of us who had fought, staged hunger strikes and protested, both inside and outside the jail, it felt like we were finally seeing the end of immigrant detainment.
But our celebrations were brief. In the two months that the jail had no detainees, the county’s contract with ICE was still in place, earning it an estimated $1.4 million. And in December, ICE transported its first detainee back into the jail. As of this week, three people are now detained there under ICE custody.
The repopulation of the jail by ICE only means we will fight even harder for liberation and the termination of the contract. Over the past year, and despite being thousands of miles away, I found ways to raise my voice. I connected with others who were detained alongside me and who were also deported and encouraged them to join the fight. My wife, along with other mothers, sisters, and family members joined us as well. We hosted Instagram live videos as a space for storytelling. For weeks, I met with congressional offices and shared my story and the story of others, which ultimately led to their support.
At a recent Yuba County Board of Supervisors meeting, newly named Chairman Randy Fletcher said that the claims made in a letter sent by the ACLU to the Yuba County sheriff and Board of Supervisors about the multiple violations and unlawful conditions at the jail were not true. “They make a lot of accusations. … It’s not true. It’s just not true,” he said. But I and the other undocumented people who were detained there know what we suffered through is true. And it needs to stop.
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Read the rest of the story at the link.
Coercion and punishment have long been part of the plan. That’s because the Supremes have fabricated the concept that “civil” imprisonment isn’t “punishment.” Pure balderdash!
Also, how does a jail get paid $1.4 million by taxpayers for nothing? Sounds like a “fleecing of America.”
But, of course, neither Garland nor Mayorkas bother to look into these questionable practices. Rather curious in light of the recommendation of a “select task force of experts” at the end of the Obama Administration that detention contracts (which frequently make establishing accountability for abuses difficult or impossible) be ended and that DHS phase out unnecessary detention.
Lack of accountability for DHS Detention is a chronic problem. So are defective bond procedures by EOIR that several Federal Courts have found unconstitutional, but which Garland continues to defend! Arbitrary bond procedures, weak internal appellate review, and lack of helpful precedents all feed the system.
Also, EOIR’s brushing aside the intentional coercion, lack of access to counsel, absence of resources, inability to prepare and document cases all contribute to the dangerous dysfunction. New, independent, expert, progressive “real judges” at EOIR would not allow Mayorkas and Garland to keep sweeping these abuses under the carpet!
Perhaps that’s why Garland has been content to allow his “courts” to malfunction using a majority of Trump/Miller holdovers and some notorious “go along to get along” bureaucrats as “judges.” Voices of expertise and reason among the IJs, and there are some, are often “silenced,” “neutered,” or “intentionally frustrated” by a BIA stacked with apologists, sometimes flat-out advocates, for DHS Enforcement and anti-immigrant policies.
Meanwhile, journalists, advocates, and those who have experienced “The Gulag” first hand need to keep it in the headlines, continue to litigate vigorously against it, and make a record of the disgraceful gap between what America claims to stand for and what it actually does! And, they would do well to “keep turning up the heat” on Garland’s “star chambers” and on his own lack of accountability for the daily disasters that unfold under his auspices.
The UW Law School launched a new center to support Wisconsin’s DREAMers, an all-encompassing term describing individuals who have lived in the United States without official lawful status since coming to the country as a minor. The Center for DREAMers was awarded a grant through the Baldwin Wisconsin Idea Endowment, a competitive grant program that fosters public engagement and the advancement of the Wisconsin Idea.
Clinical Professor and Director of the Immigrant Justice Clinic at the Law School Erin Barbato, together with Erika Rosales of the School of Education, will lead the Center for DREAMers.
Erika Rosales School of Education University of Wisconsin, Madison PHOTO: UW Law
The center will serve the approximately 11,000 DREAMers in Wisconsin, working with organizations to coordinate the provision of legal representation, mental and social services, and career and educational counseling to ease the burden of some of the uncertainty experienced by undocumented immigrants who came to the U.S. as children.
Barbato, who teaches second- and third-year law students to represent individuals in removal proceedings and with humanitarian-based immigration relief, says the center will become an important resource for the community.
“The Center for DREAMers will bring together comprehensive resources for students that have DACA in Wisconsin,” says Barbato. “Currently, no organization in Wisconsin exists that has the capacity to serve the unique educational and legal needs of DACA recipients. We hope the center will serve this population in a manner that will allow them to fulfill their potential in a state and country they call home. We are honored to have the opportunity to serve this population so they no longer have to live in fear and one day they will have equity in educational opportunities as well as citizenship.”
As a part of its community-focused approach, the center provides outreach events and support on different campus and community locations, including the South Madison Partnership. A particular focus includes outreach to DACA communities throughout the state of Wisconsin, including bi-monthly information events.
The center’s mission also aligns with the Law School’s law-in-action tradition.
“The University of Wisconsin Law School is renowned for its law-in-action approach to legal education, and the Center for DREAMers aligns with that practical approach to learning and the pursuit of equal justice,” says Dean Dan Tokaji. “We’re grateful for the Baldwin Wisconsin Idea Endowment’s support for the center and are thrilled by the opportunities this will provide for our students and the community.”
Located in the Law School’s Economic Justice Institute, the center opened in October and began providing office hours and counseling services. Clinical law students in the Immigrant Justice Clinic play an instrumental role in the center’s work, says Barbato. Under her guidance, the students provide direct representation to people with DACA in renewals and may provide representation to people with DACA who are eligible for pathways to citizenship through family, employment, or for humanitarian-based reasons.
Congratulations, Erin, my friend, on your continuing extraordinary leadership, creativity, and overwhelming commitment to achieving social justice in America. You are indeed an inspiring role model for America’s new generation of lawyers! So proud of what you and your colleagues are doing at my alma mater! Go Badgers!
WASHINGTON — Last June, the San Francisco Immigration Court quietly tested a new idea: Fast-track the cases of immigrants whose mail wasn’t reaching them. In the trial run, 80% of the immigrants scheduled were ordered deported for not showing up.
Top officials were effusive with praise over the results, emails obtained by The Chronicle show, and rushed to set up more hearings: “Very positive!” emailed one of the top supervising immigration judges overseeing the nation’s hundreds of courts.
The newly uncovered emails reveal that the fast-track docket for immigrants with returned mail, which was first reported by The San Francisco Chronicle last fall, was cheered at the highest levels of the courts and pursued with full awareness that scores of immigrants would likely be ordered deported as a result.
Advocates and attorneys for immigrants raised concerns about the practice as a sort of deportation conveyor belt last year, as many of the lawyer-less immigrants may have no idea they missed a court hearing, much less that they were ordered deported during it, because they didn’t know how to update their address with the court or thought that Immigration and Customs Enforcement would do so on their behalf. The immigration courts are run by the Justice Department, with judges hired and ultimately overseen by the attorney general.
The emails were obtained through a Freedom of Information Act request by a nonprofit watchdog group, American Oversight, prompted by The Chronicle’s reporting. The group shared the records with The Chronicle.
The Department of Justice declined to comment specifically on the emails, noting that removal orders for failing to appear in court are legally valid and that issuing notices with new hearing dates gives unreachable immigrants an opportunity to appear in court and avoid a deportation order.
Chronicle analysis of available data last year found that the practice significantly increased the number of immigrants who were ordered deported for not being present in court, called an “in absentia” removal order. As many as 173 people were given deportation orders because of such proceedings in August and September — a nearly ninefold increase from the 20 similar orders given the previous seven months combined.
This guy doesn’t realize that he could have avoided “justice” in Garland’s Star Chambers by not appearing for his hearing!
For Garland’s “judiciary,” the object appears to be avoiding fair hearings rather than conducting them! Perhaps, that’s understandable (not justifiable) considering how poorly many of his courts’ decisions fare upon judicial review in the Article IIIs.
For his cowardly attacks on migrants and backlog-building mismanagement and misdirection of EOIR, Garland gets “Courtside’s” coveted “Five Puke-Five Thumbs Down Award!” 🤮🤮🤮🤮🤮👎🏽👎🏽👎🏽👎🏽👎🏽
While Garland is failing in his job, his concerted efforts to break apart and “alienate” key segments the Dem coalition that elected Biden is succeeding and should pay great dividends (for the GOP and Trump) in the Fall Midterms! No wonder Garland’s running the system into the ground using “Trump/Miller holdovers.”
Garland and his equally poorly performing lieutenants (Monaco, Gupta, Clarke, Prelogar) are giving us a “Master Class” in “Why Dems Can’t Govern and Blow Elections 101.”
A party that lacks the courage to act on the values it espoused to get elected doesn’t stand for anything at all!🤮👎🏽
Maybe lots of Dems pulled the lever because they wanted more of Gauleiter Stephen Miller’s White Nationalist policies. But, I haven’t heard of any!
Biden’s “Shadow Attorney General” speaks through the likeness of Merrick Garland! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.comCNN Digital Expansion 2019, Priscilla Alvarez Politics Reporter, CNN
“Today we heard the same unconvincing arguments from the Biden administration that we’ve been hearing for the last year about this xenophobic and baseless policy, arguments that have already been rejected in federal court. Title 42 unjustly and unnecessarily inflicts harm on families seeking asylum at our border, and we will continue to work tirelessly to ensure that this policy ends once and for all,” said Diana Kearney, senior legal adviser with Oxfam America, in a statement.
In a recently released report, Human Rights First found nearly 9,000 reports of kidnappings and other violent attacks against people who had been expelled to Mexico or blocked from seeking protection in the US.
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Read Priscilla’s full story on the bottomless depths to which Garland has taken American “justice” and the Department of “Justice” at the link.
I can always count on Garland to illustrate and punctuate my points about his unfitness for the job of achieving racial equality, re-establishing the rule of law, and promoting human rights in America, not to mention his total unsuitability and inability to run a fair, impartial, due-process-oriented court system! He probably would have been right at home with the “GOP Six” on the Supremes.
A year ago, who would have thought that Biden and Garland share this guy’s vision of “justice” for migrants at the border and at EOIR? Image: Hernan Fednan, Creative Commons License
Dear Paul:
In this week’s First Page, we focus on the one-year anniversary of the Biden presidency — with a particular focus on policies that impact migrants and asylum seekers.
Our recently published report makes clear that the administration’s continuing use of Trump-era restrictions has led to escalating human rights violations and needless disorder.
We believe that the United States must welcome people seeking refuge with dignity, not deliver them to danger.
REPORTING THE RECORD
On Thursday, Human Rights First released a new report finding that after a year in office, the Biden administration’s continued implementation of Trump-era restrictions is sending to danger thousands of families and individuals who seek asylum protection in the United States.
The data assembled in our report, “A Shameful Record: Biden Administration’s Use of Trump Policies Endangers People Seeking Asylum,” is a damning indictment of the U.S. government’s border policies.
Courtesy Adrees Latif/Reuters
Between January 2019 and January 2022, our research identified more than 10,000 reported kidnappings, rapes, acts of torture, and other grievous acts of violence against migrants and asylum seekers blocked in, returned to, or expelled to Mexico under the U.S. government’s “Remain in Mexico” and “Title 42” policies.
At least 8,705, or 85%, of these attacks occurred during the first year of the Biden presidency.
“President Biden’s first year in office has set a shameful new record on human rights as his administration continues to deliver asylum seekers to danger in Mexico,” saidKennji Kizuka, associate director for refugee protection research at Human Rights First and co-author of the report. “The Biden administration is well aware of the grave harm asylum seekers suffer when sent to Mexico and yet it has continued to use a policy condemned by public health experts, international authorities, civil rights leaders, and even departing members of President Biden’s administration.”
Courtesy ReuterS
Our report makes clear that kidnappings and rapes of returned migrants – including of children – are common.
Cartels and other organized criminal groups in Mexico have turned torturing asylum seekers and extorting their U.S. family members into a new and lucrative illicit enterprise. At least three asylum seekers sent to Mexico by DHS under these policies were murdered.
Equally frightening, our research shows that Mexican police, immigration officers, and other authorities are often complicit in – if not directly responsible for – these attacks.
Courtesy Getty
As the Biden administration restarts the inherently flawed “Remain in Mexico” program in the wake of court rulings, they have already sent asylum seekers from Cuba, Nicaragua, Venezuela, and other countries to “wait” for their day in immigration court in danger in Mexico.
In addition to inflicting grave and systematic suffering, these policies continue to perpetuate disorder, encourage repeat entries, inflate apprehension statistics, cause family separations, and fuel cartels by putting a bullseye on the backs of people seeking U.S. asylum who are blocked in Mexico.
Despite the Biden administration’s earlier efforts to terminate “Remain in Mexico,” when it was ordered by a federal court to re-implement the program, the administration has now chosen to expand its scope.
Today the administration is defending the expulsion policy in federal court, with a hearing in a lawsuit challenging expulsions of families at the D.C. Circuit Court of Appeals.
HIRING FOR HUMAN RIGHTS
Reports like A Shameful Record are just one element of our critical efforts to defend the dignity of all people.
Human Rights First seeks passionate team members who are interested in legal, communications, development, finance, and innovation work that can change lives, impact policy, and move public opinion.
Please check out our careers page and apply to join us today.
* * * * *
Watch for more news as our work for human rights continues. And please stay in touch on social media:
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You can read the full version of “A Shameful Record” at the above link.
Not to mention that the extreme lack of expertise, humanity, and quality control in Garland’s wholly-owned Immigration Courts is corroding American justice from the “retail level” up. So unnecessary! So divisive! Such a missed opportunity for Dems to actually govern with values and in the public interest!
Wow! Think of the incredible waste: So much talent, energy, creativity, and manpower that could be working with the Administration to solve problems and make things better for everyone. Instead they are engaged in an all-out war to stop the Biden Administration’s cruel, spineless, and highly ineffective immigration and human rights blunders and, once again, be the last line of defense for American democracy against the Dems’ self-destructive policies and actions.
Garland’s methods for attracting, recruiting, hiring, and retaining Immigration Judges have not inspired confidence from the NDPA and other expert critics of his totally dysfunctional, wholly-owned and operated, exponentially backlogged, poorly performing Immigration “Courts.” PHOTO: Thomas Hawk Creative Commons Amateur Night
The latest judge-by-judge data from the Immigration Courts indicate that more judges are resigning and retiring. Turnover is the highest since records began in FY 1997 over two decades ago. These results are based on detailed records obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University under the Freedom of Information Act (FOIA) from the Executive Office for Immigration Review (EOIR) which administers the Courts.
During FY 2019 a record number of 35 judges left the bench. This is up from the previous record set in FY 2017 when 20 judges left the bench, and 27 judges left in FY 2018. See Figure 1.
. . . .
There has also been an increase in hiring (see Table 1). The combination of elevated hiring plus a record number of judges leaving the bench means more cases are being heard by judges with quite limited experience as immigration judges.
Currently one of every three (32%) judges have only held their position since FY 2019. Half (48%) of the judges serving today were appointed in the last two and a half years. And nearly two-thirds (64%) were appointed since FY 2017[1]. See Figure 2.
. . . .
Thus, record judge turnover means the Court is losing its most experienced judges, judges whose services would be of particular value in helping mentor the large number of new immigration judges now joining the Court’s ranks. Even with mentoring, new judges appointed without any background in the intricacies of immigration law face a very steep learning curve. And without adequate mentoring, there is a heightened risk that some immigrants’ cases could be decided incorrectly.
. . . .
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Read the complete report, with charts and graphs, at the above link.
It certainly didn’t help that Garland inexcusably wasted dozens of his “first picks” on Barr’s pipeline appointments — a group that contained few, if any, recognizable “practical scholars” in immigration/human rights/due process/equal justice.
This also shows why adding more judges under Garland’s indolent and ineffective “leadership to the bottom” is likely to aggravate, rather than alleviate, the myriad of problems and the uncontrolled mushrooming backlogs in his dysfunctional courts.
Garland’s mind-boggling failure to act on principles and make obvious, long overdue personnel and structural reforms at EOIR threatens to shred the Dem party and endanger the future of American democracy! It also underlines the hollowness of Biden’s pledge to fight for equal justice and voting rights reforms.
Faced with a wholly owned system badly in need of progressive reforms, the Biden Administration has carried on many of the scurrilous traditions of its Trump predecessors (“MillerLite policies”) while shunning and disrespecting the advice, values, and participation of progressives committed to due process and fair treatment of all persons, regardless of race, color, creed, or status.
And, of course, it goes without saying that Garland has failed to address the glaring integrity and access problems infecting EOIR data, as outlined in the TRAC report above. With “disappearing records,” “stonewalling party lines,” and institutionalized “lack of transparency,” who really knows what the real size of Garland’s backlog is or what other problems are hidden in his EOIR morass?
It just underlines the need for an independent team of professionals to take over Garland’s broken system, “kick some tail,”and get to the bottom of its many, many, largely self-created and often hidden from the public problems and enduring failures!
Overall, a disappointing and disgraceful first-year performance by an experienced Judge and DOJ vet from whom much, much better was expected and required.
Too bad we didn’t get an Attorney General with the guts to lead and engage on progressive reforms at EOIR! One bright spot, though: Some of the “best ever” judges just leave the bench and call “Sir Jeffrey” Chase to enlist in the Round Table’s battle to advance due process and fundamental fairness! 🛡⚔️ And, they are welcomed with appreciation, respect, friendship, and love — things that few, if any, sitting judges in Garland’s dysfunctional and discombobulated system get!
🇺🇸Due Process Forever! Garland’s “Amateur Night @ The Bijou” Never!
Immigration Court Backlog Now Growing Faster Than Ever, Burying Judges in an Avalanche of Cases
The U.S. Immigration Court system is currently staring up a mountain of pending cases that at the end of December 2021 reached 1,596,193 — the largest in history. If every person with a pending immigration case were gathered together it would be larger than the population of Philadelphia, the sixth largest city in the United States. Previous administrations — all the way back through at least the George W. Bush administration — have failed when they tried to tackle the seemingly intractable problem of the Immigration Court “backlog.”
Yet a disturbing new trend has emerged during the Biden administration that demands attention: since the start of the Biden administration, the growth of the backlog has been accelerating at a breakneck pace.
Quarterly growth in the number of pending Immigration Court cases between October and December 2021 is the largest on record. In just this short period, the backlog increased by almost 140,000 cases. This far exceeds any 3-month increase during the most dramatic period of growth of the Trump administration. These findings suggest that the Immigration Courts are entering a worrying new era of even more crushing caseloads — all the more concerning since no attempt at a solution has yet been able to reverse the avalanche of cases that Immigration Judges now face.
The partial Court shutdown during the COVID-19 pandemic has, of course, contributed to the backlog’s growth. However, the main contributor is the recent deluge of new cases filed by the Department of Homeland Security (DHS). If the current pace during the first quarter of FY 2022 of newly arriving Notices to Appear (NTAs) continues, the Court will receive 800,000 new cases — at least 300,000 more than the annual total the Court has ever received during its existence.
For full details, including a review of the history leading to this juncture, read the full report at:
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University.
*****************
What’s Garland’s next target: a backlog bigger than Chicago, New York, Los Angeles?
Garland was warned in advance about the extreme dysfunction in his courts and the urgent need to make fixing it one of his highest priorities. Instead of immediately bringing in progressive experts, replacing the BIA, hiring better judges and innovative administrators to address the backlog, attack poor judicial quality, and curb abuse of the system by DHS, Garland has simply failed to take due process, fundamental fairness, and best practices seriously. He has also compounded the disaster by using “proven to fail” enforcement and deterrence gimmicks and retaining poor quality managers and judges packed into the system by Sessions and Barr.
The worse the dysfunction gets under Garland, the harder it will be to convince the “best and brightest” to undertake the challenge of fixing it!
Also, time’s a wasting. The first year of any Administration is the time to get things done. Garland has already squandered that precious time!
This system is totally out of control and crushing the lives and futures of those caught up in it. Sadly, nobody in power in any of the three branches seems interested, motivated, or courageous enough to fix it. That’s bad for our democracy!
But these are, mostly, obscure policy changes or unrealized proposals. When Miller et al. condemn Biden’s “immigration record,” they zero in on his decisions at the Southern border.
Which is, frankly, odd. You’d never know it from the right-wing hysteria about Biden’s supposedly “open borders,” or Biden’s own campaign promise to “end Trump’s detrimental asylum policies.” But Biden has continued Trump’s most restrictionist, inhumane and possibly illegal border policies.
In some cases Biden has even expanded them.
As evidence of Biden’s supposedly lax border policies, Republicans sometimes cite his attempt, on Day One of his presidency, to end the program informally known as “Remain in Mexico.” This Trump-created program forced asylum seekers to wait in dangerous camps in Mexico while their U.S. cases were processed; there, vulnerable immigrants have been frequent targets for rape, kidnappings, torture and murder.
If Biden had terminated the program, that would have been a good thing, from a human rights perspective (not a Republican priority, apparently). But Biden did not succeed. After a legal challenge, a federal judge ordered the program to be resurrected — and the Biden administration not only obeyed but also expanded the program’s scope to cover even more categories of immigrants.
[Catherine Rampell: Joe Biden is president. Why is he maintaining Trump’s immigration agenda?]
Worse, Biden has maintained Trump’s Title 42 order. This likely illegal order involves automatically expelling hundreds of thousands of people encountered at the border without ever allowing them to apply for asylum, in contravention of rights guaranteed under both U.S. and international law. Both Trump and Biden have cited a little-used public health provision as pretext for this policy, even though legions of public health experts have argued that it doesn’t protect public health.
Perversely, continuing this Trump policy has also given ammunition to the hard-right nativists, because it has the unintended consequence of inflating the count of U.S. border crossings. Many of those expelled immediately turn around and attempt another crossing; in fiscal 2021, 27 percent of individuals were apprehended multiple times by Border Patrol, nearly quadruple the share in 2019.
The disconnect between GOP claims about “open borders” and Biden’s actually-quite-Trumpy border policies, is enormous. Two of Biden’s own political appointees who resigned last fall lambasted his actions as “inhumane” on their way out the door; six other high-level immigration officials have recently announced they were leaving the administration, without much public explanation.
It’s unclear why Biden has maintained his predecessor’s policies. One possibility is politics — that these choices were intended to stave off right-wing attacks about lax enforcement. If that was the motivation, though, it failed. Instead, Biden has delivered the worst of all worlds: inhumane, immoral, potentially illegal policy — and bad-faith political blowback about “open borders” all the same.
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Yup! It’s what “Courtside” has been saying all along!Read her complete article at the link!
Catherine sees much more clearly than any member of the Biden Administration the ridiculous failings of their so-called “immigration policies” (actually a series of disjointed, often self-contradictory, knee-jerk responses that sometimes undermine each other and reflect a total lack of thoughtful, morally courageous, informed leadership).
And, Catherine doesn’t even highlight the single biggest failure — one that cuts across every failure she mentions and also goes to the heart of our legal system!
That’s, of course, the abject failure of Biden AG Merrick Garland to bring due process reforms and better judges to his totally dysfunctional, grotesquely unfair, wholly-owned U.S. Immigration Courts. These “courts” — that function more like 21st Century Star Chambers than anyone’s concept of a “real court” — were “weaponized” by Garland’s Trumpy predecessors, Sessions and Barr.
They filled the courts at all levels with less than well qualified judges, many with no immigration experience or prosecutorial experience only, who were intended to help carry out the White Nationalist, anti-asylum, anti-immigrant policies developed by Gauleiter Stephen Miller. Garland has not replaced these unqualified judges with better talent, selected in a open, transparent, merit-based process with “outside input.” He has failed to make the substantive and procedural reforms necessary to bring order and some semblance of efficiency to his hopelessly backlogged “courts.”
He has declined to remove poor leaders appointed by his predecessors; nor has he tapped the large supply of progressive, expert human rights/immigration talent who could begin the process of restoring due process. He has continued to promote enforcement “gimmicks” — like “Dedicated Dockets” and the illegal use of Title 42 — that accelerate “Aimless Docket Reshuffling” and have led to even higher backlogs.
His refusal to bring common sense, achievable reforms, and better judges to the Immigration Courts has demoralized lawyers and made pro bono representation even more difficult.
He has ignored the pressing need for better judicial training implemented by qualified outside experts. He hasn’t bothered to engage with those like the VIISTA Villanova program turning out exceptionally well-trained potential “accredited representatives” who could help reduce the staggering representation gap in his courts. Worse yet, he has allowed EOIR bureaucrats to create entirely new backlogs in the agency process for recognizing pro bono organizations and accrediting their representatives.
Garland’s horrible failure to energize and attract the progressive leadership and judicial talent who know how to begin solving these problems (rather than aggravating them) might eventually go down as one of the biggest “blown opportunities” for due process reforms in modern American legal history! This is the “low hanging fruit” that Garland and the Biden Administration has allowed to “rot on the tree.” What a (needless and deadly) tragedy!
So what should we tell our students? Many are dispirited and cynical because, as far into the future as they can see, this court appears likely to do more harm than good to democracy.
First, we shouldn’t hide the reality that judicial decisions often depend on who is on the bench. That has never been more true because the entrenched partisan Senate confirmation process now guarantees that a Supreme Court nominee will be chosen to carry out political and ideological aims. For the first time in American history, the ideology of the justices precisely corresponds to the political party of the president who appointed them. All six conservatives were appointed by Republican presidents and all three liberals were appointed by Democrats.
Until recently, there were moderate liberals, such as John Paul Stevens and David H. Souter, appointed by Republicans, and there were moderate conservatives, such as Byron White and Felix Frankfurter, who had been appointed by Democrats. Trump picked three of the most ideologically conservative judges on the federal bench.
If students are to one day become effective litigators on constitutional rights, they will need to understand the ideologies of the justices interpreting the law. In the past, we certainly discussed the ideology of the justices with our students, but we must focus on it far more now as the ideological differences between the Republican-appointed justices and judges and those appointed by Democratic presidents are greater than they have ever been.
Second, we must remind students that there have been other bleak times in constitutional law when rights were contracted. From the 1890s until 1936, a conservative Supreme Court struck down over 200 progressive federal, state and local laws protecting workers and consumers. In the late 1940s and early 1950s, the court refused to stand up to the hysteria of McCarthyism. The current court will not last forever, though it may feel like that to them.
Third, we should direct focus on other avenues for change. Students need to look more to state courts and legislatures, at least in some parts of the country, as a way to advance liberty and equality. For instance, the Massachusetts Legislature passed a law known as the “Roe Act,” protecting a woman’s right to abortion under state law, no matter what the Supreme Court decides. We need to teach our students how to use the power of local governments to protect fair housing, public education and public health.
Fourth, we must encourage them to look at the sweep of history. In the early 1960s, almost half the states had Jim Crow segregation laws, there were few women going to law school, and every state had a law criminally prohibiting same-sex sexual activity. The Rev. Martin Luther King Jr. was right when he said that the arc of the moral universe is long and it bends toward justice — if we work for it.
There really are just two choices: Give up or fight harder, even if there will be a lot of losses along the way. If we can instill in students a desire to defend justice, even if victory is distant, it will be a good semester, no matter what the Supreme Court decides.
Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion. Jeffrey Abramson is professor of law and government at the University of Texas at Austin.
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Read the full article at the above link.
Sometimes, the best you can do is save as many lives as you can, one at a time. Eventually, it adds up. Also, as the article suggests, it’s critical to get involved and speak out on local political issues. That’s where the fascist far-right has made huge inroads.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
From our leader and spokesperson “Sir Jeffrey” Chase:
Round Table Brief cited today in Oral Argument
Hi all:To end the week on a positive note, in oral arguments today before the Second Circuit, one of the judges asked the OIL attorney the following:
“What are we to make of the amicus brief filed by so many former IJs who stress the importance of in person hearing in the special role of Immigration Judges in developing the facts before rendering an opinion, particularly in something as factually heavy as this, as undue hardship to the children?They emphasize the importance of hearing in person testimony and suggest that it is an abuse of discretion to not permit it when it is requested.How do you respond?”
The case is Martinez-Roman v. Garland.
. . . .
The IJ wouldn’t let two witnesses testify: the medical expert, and a 13-year-old child of the respondent.So when the judge asked that question, the OIL attorney claimed that the IJ was trying to protect the child from the psychological trauma of testifying.The judges pointed out that the IJ had actually said he wouldn’t allow the testimony only because it would be duplicative.In the child’s case, it was supposedly “duplicative” of a one-page handwritten statement written by the child.In the expert’s case, the IJ admitted that he hadn’t actually read the expert’s written statement, causing the circuit judges to ask how the IJ could have known the testimony would be duplicative of a statement he hadn’t read.
Wishing all a great, safe, and healthy weekend! – Jeff
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Garland’s “amazing” EOIR “judges” can divine the content of statements they never read, while Prelogar’s “equally amazing” DOJ lawyers just “make it up as they go along” when arguing before Article IIIs! https://www.flickr.com/photos/rasputin243/ Creative Commons License
So, Merrick, it’s an “A-OK” judicial practice for your judges to deem live testimony “duplicative” of a statements they never read! That’s some feat of clairvoyance!
“Clairvoyance” appears to be more of a qualification for your “judges” than actual expertise and experience vindicating due process in Immigration Court!
Also, when your attorneys are confronted with the defects in your judges’ performance by Article IIIs who have actually read the record and familiarized themselves with the evidence, (something you apparently deem “optional” for both your IJs and the attorneys defending them) it’s also “A-OK” for your attorneys to fabricate any bogus pretextual excuse, even one that is clearly refuted by the record.
Perhaps, SG Liz Prelogar should take a break from losing cases before the Supremes and pay attention to what nonsense DOJ attorneys are arguing before the lower Federal Courts.What, Liz, is the legality and the morality of defending a broken system, wholly owned and operated by your “boss,” that dishonestly denies due process to the most vulnerable among us?
Harvard Law might have spared Solicitor General Elizabeth Prelogar from having to work in the “legal trenches” of Immigration Court, unlike the lawyers who have been fighting to keep democracy alive over that past five years! Apparently, she took a pass on the Ethics class too, as DOJ lawyers under her overall direction “make it up as they go along” in defending the dysfunctional Immigration Courts before the Article IIIs! PHOTO: Twitter
Is this what they taught you at Harvard law? Did you miss the required course on ethics and professional responsibility? Why is the Round Table doing the work YOU should be doing as a supposedly responsible Government official who took an oath to uphold the Constitution and the rule of law?
Yeah, I know that Prelogar, like her other elitist political appointee colleagues, operates in the “legal stratosphere,” has clerked for two liberal Supremes, and otherwise “punched all the right tickets” in Dem politics. But, the problem here is that like it or not, Immigration Courts are the “retail level” of American justice that affects everything else! Right now, that effect is stunningly and unacceptably adverse!
The GOP White Nationalist nativists, like Sessions, Barr, and their hand-selected toadies, “got that.” That’s why they used their time in office to weaponize EOIR and degrade due process and humanity, while using “Dred Scottification” developed in immigration to diminish and degrade the rights of “the other” throughout our legal and political systems! The dots aren’t that hard to connect, unless, apparently, you’re a Dem Politico serving in the DOJ!
For whatever reason, perhaps because Dems keep appointing politicos who haven’t had to personally confront the mess in Immigration Court, folks like Garland, Monaco, Gupta, Clarke, and Prelogar entertain the elitist belief that standing up to the “nativist appeasers” in the Biden White House, getting rid of bad judges and incompetent administrators at EOIR, and bringing our dysfunctional (“killer”) Immigration Courts into conformity with Constitutional Due Process, international standards, and simple human dignity are “below their pay grade.” Not so!
Have to hope that the Chairman Lofgren and her staff are paying attention and will start throwing more light on Garland’s deficient handling of EOIR and the disgraceful, intellectually dishonest, arguments his attorneys are making before the Article IIIs!
This system is BROKEN, and going into the second year of the Biden Administration, Garland has NOT taken the necessary bold, decisive, yet quite obvious and realistically achievable, steps to FIX it! What gives?
Since Liz has never been a judge, let me provide an insight. No judge, life-tenured or “administrative,” liberal, conservative, or centrist, likes being played for a fool, misled, or “BS’ed” 💩 by counsel. (I actually remember “chewing out” attorneys in open court for failing to acknowledge controlling precedent in arguing before me.)
They particularly hate such conduct when it comes from lawyers representing the USG! Because Federal Judges often come from a bygone generation, many still retain the apparently now long outdated concept that DOJ attorneys should be held to a “higher standard.” Your predecessor, Trump shill Noel Francisco, certainly mocked that belief during his disgraceful tenure at the DOJ, particularly in his disingenuous and aggressive defense of the White Nationalist, anti-immigrant, anti-asylum agenda! Do you REALLY want to follow in HIS footsteps? Sadly, At this early point in time, that answer appears to be “yes.”
So, that leads to another question. Why do progressive human rights and immigration advocates continue to turn out the vote and loyally support a Dem Party that, once in office, considers them, their values, and the human souls they represent to be “expendable” — essentially “fungible political capital?” It’s something I often wondered when I was on the inside watching Dem Administrations screw up EOIR and immigration policy. I still don’t know the answer, and perhaps never will.
Law360 (January 12, 2022, 2:09 PM EST) — A top U.S. Immigration and Customs Enforcement attorney appeared elated when a sitting Massachusetts judge was indicted in 2018 for helping an immigrant in the country illegally evade custody, asking in an email if it would be “the first of many” such arrests, according to records made public in court Tuesday.
The email by then-ICE Principal Legal Adviser Tracy Short was part of a series of documents filed by a civil liberties group and government watchdog suing the agency to obtain even more records relating to the obstruction of justice charges against Newton District Court Judge Shelley Joseph.
Short posed the rhetorical question as a Fox News article circulated in emails among agency staff on the day Judge Joseph was indicted. In a later email to agency executives, Short said, “This is a great day.”
“Indeed,” responded Matthew Albence, ICE director of enforcement removal operations, according to the court filings. ICE chief of staff Thomas Blank allegedly chimed in, “Blessed.”
Judge Joseph is accused of helping the immigrant evade federal custody by allowing him to leave out the back door of her courtroom while agents from ICE were waiting out front to arrest him.
The case has been criticized by retired judges, academics and Massachusetts defense lawyers as an overreach by the federal government. Judge Joseph has argued that she acted within the scope of her judicial authority and therefore cannot be criminally charged. The issue is on appeal at the First Circuit.
The American Civil Liberties Union of Massachusetts and American Oversight, a government watchdog, attached the emails ICE produced to a motion for a pretrial win in the lawsuit they filed against the agency for records relating to the charges against Judge Joseph and her court officer Wesley MacGregor.
The civil liberties groups told U.S. District Judge Angel Kelley that the 83 pages of communications handed over by ICE in response to its records request “calls into serious question the adequacy of its search” for documents.
Among the groups’ concerns are that no records were produced for the 11 months that followed the incident, no text messages were searched, the search terms used were too narrow, and the agency never searched its Homeland Security Investigations Division even though the unit wrote a memo about the incident.
The groups asked the court to grant them summary judgment, order ICE to conduct a reasonable search — including emails and text messages — and release pages ICE is withholding under claimed exemptions from the public records law.
In December, ICE asked for a win in the case, saying it handed over what it needed to and withheld other sought-after documents that would harm pending criminal proceedings if released.
Judge Joseph and MacGregor have appealed a federal judge’s decision to not toss the charges on judicial immunity grounds. The First Circuit, in early December, heard the appeal and wrestled with how to define the judge’s immunity claim.
The ACLU’s records request was spurred by a November 2019 New York Times article that reported then-acting ICE Director Thomas Homan had been communicating with the Massachusetts U.S. Attorney’s Office in seeking legal recourse against Judge Joseph.
The ACLU requested records from March 15, 2018, through April 25, 2019, including emailed messages and letters between the U.S. attorney’s office and ICE about Judge Joseph, as well as records concerning an ICE investigation into the judge.
ICE told the ACLU in 2019 that it couldn’t do the search because the ACLU was a third party in the criminal case against Judge Joseph and needed her approval to access the records.
The ACLU protested and asked the agency to reconsider, saying that its request didn’t need Judge Joseph’s approval. In February 2020, the ICE Office of the Principal Legal Advisor ruled that a records search could be made, but ICE has failed to respond to the ACLU’s request since then, the complaint says.
Daniel McFadden, an ACLU staff attorney on the case, said in a statement to Law360 that ICE’s decision to charge Judge Joseph was “unprecedented.”
“The public has a right to know how this prosecution arose, and whether it was part of a pressure campaign to force Massachusetts court officials to assist in federal immigration enforcement,” McFadden said.
ICE and the Department of Justice declined to comment on the filing when reached Wednesday.
The ACLU of Massachusetts is represented in-house by Krista Oehlke, Daniel L. McFadden and Matthew R. Segal.
American Oversight is represented in-house by Katherine M. Anthony.
Update: This article has been updated to include comments from the ACLU.
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Look, whether Short can be fired or not, he has no business being the Chief Immigration Judge at EOIR. Short never held a judicial position before his inappropriate appointment under Trump.
His career as a hard line, widely disrespected ICE Prosecutor took him through probably the worst Federal Court in America — the Atlanta immigration Court, a self-styled “Asylum Free Zone” where “due process and fundamental fairness go to die and be buried.”
No Senior Executive like Short has “life tenure” in a particular senior position. For example, former Chief Immigration Judge, current BIA Appellate Judge Michael J, Creppy, woke up one morning in 2006 to find himself“out at OCIJ” and on his way to OCAHO, widely considered the “Siberia of EOIR.” His “offense:” “losing the confidence” of the then powers that were at DOJ and EOIR during the Bush II Administration!
I had a similar experience when I was “pushed out” as BIA Chair and then Appellate Judge because Ashcroft and his team of hard liners (including the notorious neo-fascist nativist Kris Kobach) didn’t like my decisions standing up for the legal rights of migrants!
Once in power, the GOP makes good on its threats against asylum seekers and other migrants, without necessarily passing any legislation. By contrast, with weak-kneed, tone-deaf “leaders” like Mayorkas and Garland, Dems fail to keep their campaign promises and won’t even move the worst of the GOP holdovers out of key positions where they undermine justice and ruin human lives.
