Undocumented Individuals – Page 21 – immigrationcourtside.com

⚖️🇺🇸👍🏼🗽DEAN KEVIN JOHNSON’S SUCCINCT RESPONSE TO GREG ABBOTT’S PREDICTABLE SOUTHERN BORDER BS IS WORTH A READ! — PLUS: ARELIS HERNANDEZ OF WASHPOST WITH SOME MUCH-NEEDED TRUTH & PERSPECTIVE FROM THOSE ACTUALLY LIVING ON THE SOUTHERN BORDER: “We need more lawyers and judges, not more troops or technology.”

https://lawprofessors.typepad.com/immigration/2021/03/texas-governor-abbott-statement-on-unaccompanied-minor-crisis-created-by-biden-administration.html

There, of course, are pressing humanitarian issues to address along the U.S./Mexico border. But to say that this issues are a result of “open border policies” is simply wrong. No major party political leader to my knowledge is calling for “open borders.” Rather, the “open borders” mantra is something that Republican politicians invoke to attack immigration policies that they do not like.

Democrats have another explanation for the current situation at the border. House Speaker Nancy Pelosi told ABC News’ “This Week” that the policies of the Trump administration, which radically transformed immigration enforcement from 2017-21, are to blame for the recent increase in unaccompanied migrant children at the southern border,

“This is a humanitarian challenge to all of us,” Pelosi said. “What the administration has inherited is a broken system at the border and they are working to correct that in the children’s interests.”

To address humanitarian concerns, Homeland Secretary Alejandro N. Mayorkas has directed the Federal Emergency Management Agency (FEMA) to support an effort over the next 90 days to safely shelter unaccompanied children who make the dangerous journey to the U.S./Mexico border.

KJ

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

Thanks, Kevin, for adding some reality and perspective to the discussion. You can read Abbott’s statement at the link. Notably, the Republicans have offered no constructive solutions to this humanitarian issue, either in or out of power, other than to engage in child abuse and continually violate the laws, both international and domestic.

The criticism from the likes of Abbott, who as “Governor” of Texas has presided over a power grid disaster that actually killed and threatened the health of Texas residents and who has thumbed his nose at public health recommendations that save lives, is particularly disingenuous. And, naturally, the dangerous and deadly results of Abbott’s and the GOP’s mis-governance of Texas have fallen disproportionately on Latinos and other communities of color. The Abbott/GOP response has been to attempt to disenfranchise citizens of color in Texas!

The same can be said of GOP House Minority Leader Kevin McCarthy whose main contribution to America’s safety and security has been to whitewash the deadly assault on our Capitol that his “supreme leader” orchestrated. Again, a person with no credibility.

Those seeking a more nuanced and accurate picture of what’s really happening at the Southern Border should read the lengthy report of Arelis Hernandez in the WashPost:

https://www.washingtonpost.com/immigration/migrants-are-not-overrunning-us-border-towns-despite-the-political-rhetoric/2021/03/15/b193f3f2-8345-11eb-ac37-4383f7709abe_story.html

Migrants are not overrunning U.S. border towns, despite the political rhetoric

Leaders in Texas border towns say their economies are suffering because of pandemic restrictions on cross-border travel.

. . . .

City officials and nonprofit organizations can’t force families to stay in the hotels but Darling, the McAllen mayor, said so far no one they track has left isolation prematurely.

“We tell them if they want to leave on our buses, they need to follow our rules,” he said. The city has spent nearly $200,000 of taxpayer money it hopes will be reimbursed by the federal government, but Abbott’s rejection of Federal Emergency Management Agency funding from the Biden administration will complicate matters for localities.

Darling said his city is full of compassionate people, and they are doing the rest of the country a favor in taking care of migrant families on the front end of their journeys.

Along the border, faith organizations, local emergency managers and immigration advocates say they have learned from previous surges how best to coordinate. They are preparing to receive flights and buses full of asylum seekers, mostly recently released families with small children, to ease capacity issues that critics say the Department of Homeland Security officials should have anticipated.

Coronavirus restrictions have put capacity limits on shelters run by community organizations on the U.S. side of the border, but so far the numbers are not at 2019 levels, said Pastor Michael Smith of the Holding Institute in Laredo. Shelters and temporary detention facilities operated by the U.S. Health and Human Services’ contractors, however, are over capacity.

But without more orderly intervention, the numbers could overwhelm. The Biden administration plans to deploy FEMA to the border to help with the migration surge as the administration tries to quickly scale up space to temporarily hold and process migrants and unaccompanied children — many between the ages of 13 and 17.

“The failure to have an administrative process is causing a humanitarian crisis,” Smith said during a news conference organized by Laredo activists. “There are solutions to the issues, but they are not solutions that call for militarizing the border.”

“We need robust infrastructure at our ports of entry to handle people seeking asylum,” said Tannya Benavides, of the No Border Wall coalition. “We need more lawyers and judges, not more troops or technology.”

Arelis R. Hernandez
Southern Border Reporter
Washington Post

Great article by Arelis! I highly recommend it. My only caveat is that we need not just more lawyers and judges, certainly correct, but better Immigration Judges who are experts in asylum law, have experience representing asylum seekers, and can fairly, efficiently, and consistently identify those with valid claims to protection under the law before it was perverted by the Trump regime. Also, the Government could use more qualified Asylum Officers who could screen and finally adjudicate the grantable cases, under correct legal criteria set forth by better-qualified Immigration Judges and a completely new due-process-human rights-oriented BIA without even having to send the cases to court.

These are the bold steps necessary to get out of the cycle of “same old, same old” — which inevitably ends with harsh measures directed at asylum seeking families and children that do nothing to address the causes of forced migration. “Enforcement-only deterrent measures” never have solved, and never will solve, the long-term problem in a constructive manner. The cycle of failed, yet expensive and inhumane deterrents, just keeps repeating itself Administration after Administration.

I have already suggested tapping into retired Asylum Officers and other retired USCIS Adjudicators with the necessary asylum expertise. I’m betting that my retired Round Table colleague, and former Asylum Officer and UN Official, Judge Paul Grussendorf would be available to help lead such an effort.

To solve this problem, the Biden Administration must put some experts who understand the practicalities of refugee and asylum situations in place and let them solve the problem. It should come as no shock that the current gangs at DHS and EOIR —largely holdovers who participated in the Trump regime’s cruel, failed, and illegal “enforcement only” policies at the border — are not going to be able to get the job done. At least they can’t without some effective “adult supervision” from those committed to humane, legal, and timely processing of asylees and other migrants in full compliance with due process and best practices.

The Trump regime eschewed any attempt to build a fair, effective, timely asylum adjudication system that complied with domestic and international law as well as due process. Instead, they concentrated on eradicating the entire U.S. refugee and protection system through regulations (many enjoined), Executive Orders (some enjoined), bogus administrative “precedents,” and stacking the Immigration Courts with overtly anti-asylum or “go along to get along” “judges.” Right now, the entire system is in shambles — the most obvious example being the totally dysfunctional mess at EOIR!

To “win the game,” the Biden Administration needs to get the right players on the field. While there has been some notable progress, that hasn’t happened to date. And, with politicos like Abbott and McCarthy stirring the pot daily, time is running to get the “A Team” in place to combat their lies, distortions, and nonsense.

🇺🇸🗽⚖️Due Process Forever!

PWS

01-16-21

⚖️👨🏻‍⚖️ THE BIDEN ADMINISTRATION SHOULD “RE-CERTIFY” THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES (NAIJ) — Will They? ❓❓— Marcia Brown Reports For American Prospect

https://prospect.org/justice/one-union-biden-has-not-supported-immigration-judges/

. . . .

The union is hopeful that President Biden will reverse the decision, but they have yet to see action. “I know the new administration is extremely busy; I think this is a very important and significant issue,” said Paul Shearon, president of the International Federation of Professional and Technical Engineers, a union that represents many high-skilled federal employees.

As the administration begins to process asylum seekers in the “Remain in Mexico” program and otherwise roll back Trump’s asylum blockades, the court system will need to run efficiently and fairly. As it is, the immigration court backlog—largely created by Trump policies—is at 1.3 million cases.

Trump’s decertification of NAIJ “was to retaliate against NAIJ for our strong voice and our strong call to demand transparency and accountability,” said Amiena Khan, NAIJ president. The union’s previous president, A. Ashley Tabaddor, is now chief counsel at U.S. Citizenship and Immigration Services. The union is hopeful that Biden will take action, though nothing has yet been forthcoming.

“We are very supportive of the current Biden administration and appreciate his strong support for unions and collective bargaining,” said Khan.

Biden’s position on unions in other contexts has been clear. Some labor historians have said he is the most pro-labor president in their lifetimes. In an executive order in January, Biden directed the Office of Personnel Management to make recommendations concerning raising the minimum wage for federal employees to $15 per hour. In February, Biden voiced support for Amazon workers’ right to organize, an unprecedented level of support from a sitting president.

Almost immediately, the immigration judges’ union asked if he would follow up by voluntarily recognizing their union. No action has been taken. A White House spokesperson has not yet responded to a request for comment.

Merrick Garland has now been confirmed as attorney general, perhaps setting the stage for quicker movement. But the union says that, despite immigration judges being part of the Justice Department, an attorney general appointment isn’t needed to reverse the decision. The administration can voluntarily recognize the union.

. . . .

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

Over the last four years, the NAIJ was was one of the few “inside sources” of truth about the Trump Administration’s misconduct and gross mismanagement — “malicious incompetence” — at the DOJ. Obviously, in the Trump Administration speaking truth to power was a punishable offense. NAIJ was no exception.

This union representing Immigration Judges was illegally “decertified” in an absurd decision by the FLRA finding that IJs were now “management officials” on the basis of actions that had reduced them to little more than “deportation clerks” carrying out the regime’s White Nationalist, xenophobic agenda.

Not only did IJs continue to have no control whatsoever over their staff and working conditions, but they were unceremoniously stripped of their already-limited authority to professionally manage their dockets and to exercise independent discretion. They were subjected to due-process-killing “deportation quotas” and bogus “performance evaluations” by unqualified and largely out of touch “supervisors” — few, if any, of whom handled full dockets themselves — that would have been more suited to entry level deportation officers than supposedly independent and impartial “judges.” Meanwhile, the real primary cause of uncontrollable backlogs and endless delays at EOIR — “Aimless Docket Reshuffling” by politicos at EOIR HQ and the DOJ, and horrible, anti-due process, out of touch with reality “precedents” by biased AGs and the BIA — continued unabated.

Always subject to control by their “handlers” at EOIR HQ and DOJ, IJs were further humiliated by being barred from teaching at professional seminars and writing for scholarly publications. Their dockets and roles were defined by highly unqualified politicos who had never presided at an immigration hearing in their careers! Talk about screwed up!

Who ever heard of a “judiciary” that operates like a totally dysfunctional bureaucratic agency — that has most recently been run by non-judicial personnel who lack expertise, experience, and a commitment to due process — but were focused on carrying out an overtly anti-immigrant, anti-human rights, anti-due-process White Nationalist political agenda!

To add to this outrageously politically-biased scenario, to reach its ludicrous result the FLRA had to steamroll both their prior precedent on the same issues and overrule the decision of their own Regional Director.

Presently, the NAIJ is the only organization providing due-process oriented training directly to Immigration Judges. The leadership of the NAIJ stand out as some of the most qualified, courageous, and talented judges on the immigration bench.

Judge Garland and the Biden Administration simply can’t afford to leave the NAIJ out in the cold if they intend to fix the now totally-screwed-up EOIR and bring constitutionally-required equal justice under law to the broken and reeling DOJ. You simply can’t promote racial justice in America while running a “court” that has institutionalized racial biases and mocks, tramples, and ignores due process and equal justice on a daily basis!

FULL DISCLOSURE: I am a proud retired member of the NAIJ!

🇺🇸⚖️🗽Due Process Forever!

PWS

03-15-21

🗽🇺🇸SETTING THE RECORD STRAIGHT: PROFESSOR HEATHER COX RICHARDSON EXPLAINS THE SITUATION AT THE SOUTHERN BORDER

From Letters From An American, March 13, 2017:

https://heathercoxrichardson.substack.com/p/march-13-2021?r=330z7&utm_campaign=post&utm_medium=email&utm_source=email

Republican pundits and lawmakers are, once again, warning of an immigration crisis at our southern border.

Texas governor Greg Abbott says that if coronavirus spreads further in his state, it will not be because of his order to get rid of masks and business restrictions, but because President Biden is admitting undocumented immigrants who carry the virus. Senator Ted Cruz (R-TX) is also talking up the immigration issue, suggesting (falsely) that the American Rescue Plan would send $1400 of taxpayer money “to every illegal alien in America.”

Right-wing media is also running with stories of a wave of immigrants at the border, but what is really happening needs some untangling.

When Trump launched his run for the presidency with attacks on Mexican immigrants, and later tweeted that Democrats “don’t care about crime and want illegal immigrants, no matter how bad they may be, to pour into and infest our Country,” he was tangling up our long history of Mexican immigration with a recent, startling trend of refugees from El Salvador, Guatemala, and Honduras (and blaming Democrats for both). That tendency to mash all immigrants and refugees together and put them on our southern border badly misrepresents what’s really going on.

Mexican immigration is nothing new; our western agribusinesses were built on migrant labor of Mexicans, Japanese, and poor whites, among others. From the time the current border was set in 1848 until the 1930s, people moved back and forth across it without restrictions. But in 1965, Congress passed the Hart-Celler Act, putting a cap on Latin American immigration for the first time. The cap was low: just 20,000, although 50,000 workers were coming annually.

After 1965, workers continued to come as they always had, and to be employed, as always. But now their presence was illegal. In 1986, Congress tried to fix the problem by offering amnesty to 2.3 million Mexicans who were living in the U.S. and by cracking down on employers who hired undocumented workers. But rather than ending the problem of undocumented workers, the new law exacerbated it by beginning the process of guarding and militarizing the border. Until then, migrants into the United States had been offset by an equal number leaving at the end of the season. Once the border became heavily guarded, Mexican migrants refused to take the chance of leaving.

Since 1986, politicians have refused to deal with this disconnect, which grew in the 1990s when the North American Free Trade Agreement (NAFTA) flooded Mexico with U.S. corn and drove Mexican farmers to find work, largely in the American Southeast. But this “problem” is neither new nor catastrophic. While about 6 million undocumented Mexicans currently live in the United States, most of them–78%– are long-term residents, here more than ten years. Only 7% have lived here less than five years. (This ratio is much more stable than that for undocumented immigrants from any other country, and indeed, about twice as many undocumented immigrants come legally and overstay their visas than come illegally across the southern border.)

Since 2007, the number of undocumented Mexicans living in the United States has declined by more than a million. Lately, more Mexicans are leaving America than are coming.

What is happening right now at America’s southern border is not really about Mexican migrant workers.

. . . .

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

Read Heather’s complete article at the link.

The Biden Administration needs to stay the course and continue to treat this as the humanitarian situation that it is, rather than portraying desperate kids and families like an invading army. These issues can be addressed without engaging in egregious violations of international laws, domestic laws, and our Constitution. Even with the current flow, we are not going to be “overrun” with migrants. Indeed, by most reliable accounts, we will need increased immigration for our recovery and long-term economic well-being.

A critical piece will be revoking the Sessions/Whitaker/Barr precedents, replacing the current BIA with real judges who are experts in immigration, asylum, human rights, and due process, removing most of the cases unnecessarily lingering on the self-bloated EOIR docket, and getting some real expert guidance on asylum law and due process out there from the “new BIA” to guide decision-making at both DHS and EOIR.

Our asylum, refugee, and immigration systems can be fixed. But, not with the “players” left behind by the past regime. And, certainly not with more scofflaw, uber-enforcement-only gimmicks, cruelty, and inhumane policies like those that have failed time after time in the past.

🇺🇸⚖️🗽Due Process Forever!

PWS

03-14-21

⚖️🗽PROFESSOR DAVID A. MARTIN EXPLAINS HOW BIDEN ADMINISTRATION COULD ADVANCE ITS IMMIGRATION AGENDA BY ABANDONING THEIR WRONG-HEADED POSITION BEFORE THE SUPREMES! — Don’t Let Sanchez v Mayorkas Become a Lost Opportunity!

David Martin — Professor (Emeritus) David A. Martin
UVA Law
PHOTO: UVA Law

https://www.justsecurity.org/75295/removing-barriers-to-family-unity-for-holders-of-temporary-protected-status-an-opportunity-for-biden-administration/

David writes in Just Security:

Currently before the Supreme Court is a little-noticed immigration case with profound significance. Sanchez v. Mayorkas offers the Biden administration an opportunity to make major progress, without waiting for legislative action, on one of its central humanitarian goals – providing durable status to long-resident noncitizens.

A straightforward change in the government’s policy and its litigation stance could help remove a barrier blocking critical relief to several tens of thousands of noncitizens who have resided in the United States with official government permission under Temporary Protected Status (TPS). Because of a longstanding but misguided agency reading of the Immigration and Nationality Act (INA), these noncitizens are stuck in limbo and practically unable to get the permanent resident status for which they are independently eligible based on family or employment relationships. Those most affected are TPS recipients married to U.S. citizens. The case turns on a highly technical question of statutory interpretation over which six courts of appeals have so far split evenly, but the human stakes are substantial, and a change of position by the administration would have significant impact.

The plaintiff TPS holders in Sanchez may well win the case based on the plain language of the relevant statutes, as ably argued in their brief and by supporting amici. But until now, the government has argued, to the contrary, that the language of the statute compels the agency’s current restrictive interpretation. This essay contends that the administration could provide crucial support for the TPS holders under a different legal framework that, for understandable reasons, neither side has given much emphasis.

The alternative approach is for the administration to acknowledge – in light of the statutory text, the deep and abiding circuit split, and a surprising November ruling by the Justice Department’s own Board of Immigration Appeals (BIA) – that the statutory language is ambiguous. On that foundation, the government has the discretion to adopt a new (and better) interpretation that would permit eligible TPS recipients to make use of adjustment of status to obtain a green card.

In 2019, the Trump administration entrenched the restrictive interpretation through an obscure process rather clearly invoked to complicate a later policy change. The Biden administration should nonetheless undertake immediate reconsideration of the government’s position and seek to defer the pending Supreme Court briefing schedule to allow that agency process to proceed. A more refined position by the new administration would promote family unity and avoid compelling spouses of U.S. citizens to return to the very country from which they have escaped in order to seek the immigrant visa for which they already qualify.

. . . .

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

Read the rest of David’s article, explaining his suggestions, at the link.

This issue came up before me at the Arlington Immigration Court. After holding “oral argument,” I simply followed the statutory language and granted adjustment of status to the TPS holder.

In that case, following the literal statutory language produced the most reasonable policy result. As I pointed out to DHS counsel, the mis-interpretation they were pushing would not only violate the statutory language, but also result in a long-time TPS resident with work authorization who was paying taxes and supporting an American family being deprived of the legal immigration status to which he was entitled.

The result desired by DHS would have been highly nonsensical. Why make individuals who fit the legal immigration system established by Congress, and who actually have been contributing to our nation and our economy for many years, remain in limbo? In many cases, lack of a green card limits the both the earning and career potential of such individuals, plus adding unnecessary stress and uncertainty to the situation of their U.S. citizen family members.

The DHS reserved an appeal. I don’t believe it was ever pursued, however. And, of course, as a mere Immigration Judge (even before the position was “dumbed down” by the Trump DOJ) my decision only affected that particular case. It wasn’t a precedent.

But, it does illustrate my oft-made point that having “practical scholars” in immigration and human rights as Immigration Judges, BIA Judges, Article III Judges, and policy officials would be a huge positive change, making our immigration system fairer, more efficient, and more responsive to our national needs, even without major legislative changes. Also, these adjustments could be handled at USCIS, promoting uniformity while eliminating unnecessary litigation from the bloated Immigration Court docket.

Certainly, both the Solicitor General’s Office and the Office of Immigration Litigation (“OIL”) urgently need new leadership with practical experience in immigration and human rights policies and litigation. It’s definitely out here in the private/NGO/academic sectors. The only question is whether Judge Garland and his team will go out and get the right talent in the key jobs.

Even today, as I often point out, defending “boneheaded” anti-immigrant positions, horrible mis-interpretations, and stupid policies before Federal Courts, often with false or misleading narratives about the practical effects, is a huge drain on our justice system and is wasting the time of the Government, Federal Courts, and the private bar, as well as often producing counterproductive or inconsistent results. https://immigrationcourtside.com/2021/03/12/%e2%9a%96%ef%b8%8f%f0%9f%97%bdjennifer-doherty-law360-analyzes-judge-illstons-massive-takedown-of-eoirs-anti-due-process-regulations-i-speak-out-on-why-judge-garlan/

Talk about taking a potential win-win-win-win and converting it to a lose-lose-lose-lose! But, the latter was a “specialty” of the Trump regime and their DOJ.

As David astutely points out, cases such as Sanchez v Mayorkas might appear “hyper-technical” to some; but, to those who truly understand our current broken immigraton system, they have huge implications. We need the expertise of the “practical scholars” of the NDPA throughout our governing structure — starting, but not ending, with a complete “housecleaning” at the disgracefully dysfunctional EOIR.

The only question is whether Judge Garland, Secretary Mayorkas, and the others in charge of the Government’s immigraton bureaucracy will (finally, at long last) bring in the right talent to solve their problems!

🇺🇸⚖️🗽Due Process Forever!

PWS

03-14-21

🇺🇸🗽EUGENE ROBINSON @ WASHPOST — Biden Must Do The Right Thing For Kids At The Border — Their Best Interests Are Our Best Interests!

https://www.washingtonpost.com/opinions/biden-migrant-surge-stop-child-detention/2021/03/11/99d9a7e4-8295-11eb-9ca6-54e187ee4939_story.html

. . . .

So the Biden administration needs to do two things. First, it needs to create more shelter space, at least in the short term. Reopening a mothballed, 700-bed Trump-era shelter for migrant teens in Carrizo Springs, Tex. — a step the Department of Health and Human Services took last month — was probably necessary, but it’s not a good look for an administration trying to turn the page. New shelters are needed, and they must be put into service with the same urgency the administration summons for coronavirus vaccination centers.

The other thing the administration must do is move children out of the shelters into family or sponsor custody faster. This is mostly a matter of bureaucratic efficiency. Many of these “unaccompanied” minors actually were accompanied when they crossed the border, but by their grandparents, aunts, uncles or older siblings — not their parents. Biden needs to flood the zone with enough investigators, lawyers and other personnel to speedily determine that these relatives are in fact relatives, not traffickers, so these families can be promptly reunited.

Just as Biden and his aides decided to err on the side of doing too much rather than too little on covid-19 relief, they should go big on the border. When the pandemic does end, existing shelter space should be enough to handle the kind of surge we’re seeing now — but that day could be many months away. The system is overloaded this minute.

As a matter of politics, it is unwise for Biden to give Republicans fodder for demagoguery about a supposed border “crisis.” It is equally unwise to give progressive Democrats any reason to complain that his border policy is less than a complete departure from Trump’s.

And as a matter of policy, Biden must keep his eye on one guiding star: We are talking about the lives and well-being of children. It is nothing less than our duty to love and care for them as if they were our own.

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

Read Eugene’s full op-ed at the link.

In addition to asking for DHS volunteers, another idea is to quickly rehire retired Asylum Officers, Refugee Officers, and Immigration Inspectors to help out on a temporary basis.

Eugene’s article reminds me of one of my first essays that I published on Courtside in 2016, set forth in full here (originally published by Dan Kowalski in LexisNexis Immigration Community) :

SAVING CHILD MIGRANTS WHILE SAVING OURSELVES

SAVING CHILD MIGRANTS WHILE SAVING OURSELVES

By Paul Wickham Schmidt

They cross deserts, rivers, and territories controlled by corrupt governments, violent gangs, and drug cartels. They pass through borders, foreign countries, different languages and dialects, and changing cultures.

I meet them on the final leg of their trip where we ride the elevator together. Wide-eyed toddlers in their best clothes, elementary school students with backpacks and shy smiles, worried parents or sponsors trying to look brave and confident. Sometimes I find them wandering the parking garage or looking confused in the sterile concourse. I tell them to follow me to the second floor, the home of the United States Immigration Court at Arlington, Virginia. “Don’t worry,” I say, “our court clerks and judges love children.”

Many will find justice in Arlington, particularly if they have a lawyer. Notwithstanding the expedited scheduling ordered by the Department of Justice, which controls the Immigration Courts, in Arlington the judges and staff reset cases as many times as necessary until lawyers are obtained. In my experience, retaining a pro bono lawyer in Immigration Court can be a lengthy process, taking at least six months under the best of circumstances. With legal aid organizations now overwhelmed, merely setting up intake screening interviews with needy individuals can take many months. Under such conditions, forcing already overworked court staff to drop everything to schedule initial court hearings for women and children within 90 days from the receipt of charging papers makes little, if any, sense.

Instead of scheduling the cases at a realistic rate that would promote representation at the initial hearing, the expedited scheduling forces otherwise avoidable resetting of cases until lawyers can be located, meet with their clients (often having to work through language and cultural barriers), and prepare their cases. While the judges in Arlington value representation over “haste makes waste” attempts to force unrepresented individuals through the system, not all Immigration Courts are like Arlington.

For example, according to the Transactional Records Clearinghouse at Syracuse University (“TRAC”), only 1% of represented juveniles and 11% of all juveniles in Arlington whose cases began in 2014, the height of the so-called “Southern Border Surge,” have received final orders of removal. By contrast, for the same group of juveniles in the Georgia Immigration Courts, 43% were ordered removed, and 52% of those were unrepresented.

Having a lawyer isn’t just important – it’s everything in Immigration Court. Generally, individuals who are represented by lawyers in their asylum cases succeed in remaining in the United States at an astounding rate of five times more than those who are unrepresented. For recently arrived women with children, the representation differential is simply off the charts: at least fourteen times higher for those who are represented, according to TRAC. Contrary to the well-publicized recent opinion of a supervisory Immigration Judge who does not preside over an active docket, most Immigration Judges who deal face-to-face with minor children agree that such children categorically are incompetent to represent themselves. Yet, indigent individuals, even children of tender years, have no right to an appointed lawyer in Immigration Court.

To date, most removal orders on the expedited docket are “in absentia,” meaning that the women and children were not actually present in court. In Immigration Court, hearing notices usually are served by regular U.S. Mail, rather than by certified mail or personal delivery. Given heavily overcrowded dockets and chronic understaffing, errors by the Department of Homeland Security (“DHS”) in providing addresses and mistakes by the Immigration Court in mailing these notices are common.

Consequently, claims by the Department of Justice and the DHS that women and children with removal orders being rounded up for deportation have received full due process ring hollow. Indeed a recent analysis by the American Immigration Council using the Immigration Court’s own data shows that children who are represented appear in court more than 95% of the time while those who are not represented appear approximately 33% of the time. Thus, concentrating on insuring representation for vulnerable individuals, instead of expediting their cases, would largely eliminate in absentia orders while promoting real, as opposed to cosmetic, due process. Moreover, as recently pointed out by an article in the New York Times, neither the DHS nor the Department of Justice can provide a rational explanation of why otherwise identically situated individuals have their cases “prioritized” or “deprioritized.”

Rather than working with overloaded charitable organizations and exhausted pro bono attorneys to schedule initial hearings at a reasonable pace, the Department of Justice orders that initial hearings in these cases be expedited. Then it spends countless hours and squanders taxpayer dollars in Federal Court defending its “right” to aggressively pursue removal of vulnerable unrepresented children to perhaps the most dangerous, corrupt, and lawless countries outside the Middle East: El Salvador, Guatemala, and Honduras. The Board of Immigration Appeals (“BIA”), the institution responsible for enforcing fairness and due process for all who come before our Immigration Courts, could issue precedent decisions to stop this legal travesty of accelerated priority scheduling for unrepresented children who need pro bono lawyers to proceed and succeed. But, it has failed to act.

The misguided prioritization of cases of recently arrived women, children, and families further compromises due process for others seeking justice in our Immigration Courts. Cases that have been awaiting final hearings for years are “orbited” to slots in the next decade. Families often are spread over several dockets, causing confusion and generating unnecessary paperwork. Unaccompanied

2

children whose cases should initially be processed in a non-adversarial system are instead immediately thrust into court.

Euphemistically named “residential centers” — actually jails — wear down and discourage those, particularly women and children, seeking to exercise their rights under U.S. and international law to seek refuge from death and torture. Regardless of the arcane nuances of our asylum laws, most of the recent arrivals need and deserve protection from potential death, torture, rape, or other abuse at the hands of gangs, drug cartels, and corrupt government officials resulting from the breakdown of civil society in their home countries.

Not surprisingly, these “deterrent policies” have failed. Individuals fleeing so-called “Northern Triangle” countries of El Salvador, Guatemala, and Honduras have continued to arrive at a steady pace, while dockets in Immigration Court, including “priority cases,” have mushroomed, reaching an astonishing 500,000 plus according to recent TRAC reports (notwithstanding efforts to hire additional Immigration Judges). As reported recently by the Washington Post, private detention companies, operating under highly questionable government contracts, appear to be the only real beneficiaries of the current policies.

It doesn’t have to be this way. We could save lives and short-circuit both the inconsistencies and expenses of the current case-by-case protection system, while allowing a “return to normalcy” for most already overcrowded Immigration Court dockets by using statutory Temporary Protected Status (known as “TPS”) for natives of the Northern Triangle countries. Indeed, more than 270 organizations with broad based expertise in immigration matters, as well as many members of Congress, have requested that the Administration institute such a program.

The casualty toll from the uncontrolled armed violence plaguing the Northern Triangle trails only those from Syria, Afghanistan, and Iraq. TPS is a well- established humanitarian response to a country in crisis. Its recipients, after registration, are permitted to live and work here, but without any specific avenue for obtaining permanent residency or achieving citizenship. TPS has been extended among others to citizens of Syria and remains in effect for citizens of both Honduras who needed refuge from Hurricane Mitch in 1998 and El Salvador who needed refuge following earthquakes in 2001. Certainly, the disruption caused by a hurricane and earthquakes more than a decade ago pales in comparison with the very real and gruesome reality of rampant violence today in the Northern Triangle.

Regardless, we desperately need due-process reforms to allow the Immigration Court system to operate more fairly, efficiently, and effectively. Here are a few suggestions: place control of dockets in the local Immigration Judges, rather than bureaucrats in Washington, as is the case with most other court systems; work cooperatively with the private sector and the Government counsel to docket cases at a rate designed to maximize representation at the initial hearings; process unaccompanied children through the non-adversarial system before rather

3

than after the institution of Immigration Court proceedings; end harmful and unnecessary detention of vulnerable families; settle ongoing litigation and redirect the talent and resources to developing an effective representation program for all vulnerable individuals; and make the BIA an effective appellate court that insures due process, fairness, uniformity and protection for all who come before our Immigration Courts.

Children are the future of our world. History deals harshly with societies that mistreat and fail to protect children and other vulnerable individuals. Sadly, our great country is betraying its values in its rush to “stem the tide.” It is time to demand an immigrant justice system that lives up to its vision of “guaranteeing due process and fairness for all.” Anything less is a continuing disgrace that will haunt us forever.

The children and families riding the elevator with me are willing to put their hopes and trust in the belief that they will be treated with justice, fairness, and decency by our country. The sole mission and promise of our Immigration Courts is due process for these vulnerable individuals. We are not delivering on that promise.

The author is a recently retired U.S. Immigration Judge who served at the U.S. Immigration Court in Arlington Virginia, and previously was Chairman and Member of the Board of Immigration Appeals. He also has served as Deputy General Counsel and Acting General Counsel of the former Immigration and Naturalization Service, a partner at two major law firms, and an adjunct professor at two law schools. His career in the field of immigration and refugee law spans 43 years. He has been a member of the Senior Executive Service in Administrations of both parties.

4

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

🇺🇸⚖️🗽Due Process Forever!

PWS

03-13-21

⚖️🗽JENNIFER DOHERTY @ LAW360 ANALYZES JUDGE ILLSTON’S MASSIVE TAKEDOWN OF EOIR’S ANTI-DUE-PROCESS REGULATIONS — I Speak Out On Why Judge Garland Needs To Pull Plug On The EOIR Clown Show 🤡 Sooner, Rather Than Later! — PLUS, BONUS COVERAGE: My “Open Letter” To Judge Garland!

https://www.law360.com/articles/1363797

Here’ what I had to say to Jennifer:

. . ..

Retired Immigration Judge Paul Wickham Schmidt, a former chairman of the Board of Immigration Appeals who was also general counsel to the Immigration and Naturalization Service at the time of the EOIR’s creation, likewise praised Judge Illston’s order in an interview with Law360 Thursday.

Judge Schmidt, a vocal opponent of the Trump administration’s management of the EOIR, characterized the rule as part of a larger effort to discourage immigrants by stacking the courts against them, rather than a good-faith effort to reduce ballooning backlogs.

“When your docket is 1.3 million, it’s not the fact that someone is getting a few extra days in a continuance, it’s the fact that DHS is adding more cases,” he said.

As for whether the DOJ under President Joe Biden would continue defending the rule — as it is for one of the Trump-era asylum rules — Judge Schmidt said it was hard to say. But newly confirmed Attorney General Merrick Garland should prioritize changing the EOIR, as he stated his mission would be to restore nonpartisanship and defense of civil rights as pillars of the department, the judge said.

“If Garland wants to straighten out the Department of Justice, he’s got to straighten out EOIR. EOIR is a living refutation of everything Garland says he stands for,” Judge Schmidt told Law360.

Representatives for the DOJ did not respond to a request for comment Thursday.

The immigrant advocates are represented by Jingni (Jenny) Zhao, Anoop Prasad and Glenn Michael Katon of Asian Americans Advancing Justice — Asian Law Caucus, Seferina Young Berch, Stephen Chang, Naomi Ariel Igra, Michael O McGuinness, Scott T. Nonaka and Irene Inkyu Yang of Sidley Austin LLP, and Judah Ben Lakin and Amalia Margarete Wille of Lakin & Wille LLP.

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

Thankfully, Jennifer is operating “outside the paywall” on this particular article. So, all of you can get full access to her outstanding reporting on this case at the above link.

Dear Judge Garland:

Congratulations again and best wishes on your recent appointment as our Attorney General. I write to beg you, as a former DOJ colleague, Senior Executive, and administrative judge to deal immediately with a festering problem undermining the entire U.S. Justice system that is unfolding right under your nose, whether or not you have had time to focus on it.

A number of the individuals and organizations whose help you will need to fix EOIR and achieve equal justice for all in America are instead having their time and precious resources diverted to defending our justice system and the Constitution from absurdly illegal and obscenely counterproductive decisions and actions now being taken in YOUR NAME, such as the illegal EOIR regulations in this case. Indeed, these regulations and many other travesties still being pursued by EOIR at the behest of the former regime should have been on the chopping block long before you were even sworn in.

Not only are you now squandering Executive Branch and private sector resources that could better be devoted to solving problems, you are also wasting the time and trying the patience of thoughtful Federal Judges like U.S. District Judge Susan Illston. Certainly, as a former highly admired and respected Federal Judge, you know the value of judicial time in our system.

Additionally, failure to take immediate steps to end the dysfunction, disorder, and nonsense still streaming from EOIR on a daily basis is not only destroying vulnerable human lives, but also costing you goodwill with the very NGOs and talented, dedicated, often pro bono advocates whose assistance and support will be absolutely necessary for you to succeed in your stated objectives of returning integrity to the DOJ, eradicating institutionalized racism, and finally, finally achieving long overdue equal justice under law for all in America.

As I told Jennifer, EOIR is a “living contradiction” of everything you said in your confirmation hearing. It’s also a repudiation of the values that I have always seen and respected in you, even if mostly from afar.

I beseech you to “pull the plug” on today’s EOIR and put someone in there who can start getting it back on track: A “Due Process/Human Rights/Immigration Guru,” if you will. In terms to which we both can relate, you must find a judicial leader in the image of our late great colleague from the Carter DOJ, and your former colleague on the D.C. Circuit, Judge Patricia M. Wald. As we both know, she was was brilliant, energetic, yet highly practical, well-organized, and unswervingly committed to realizing social justice on both the national and eventually international stages.

Put someone who can run a real due-process-oriented court system in charge of the EOIR mess and let ‘er rip. You can cement your legacy to American Justice by achieving EOIR’s once noble, now discarded, vision that many of us who once served there established to guide our actions: “Through teamwork and innovation, be the world’s best tribunals guaranteeing fairness and due process for all.”

With my very best wishes for your continued success,

Your former DOJ colleague from decades past,

Paul

🏴‍☠️🤡SLOPPINESS, POOR ANALYSIS, MISCONSTRUING RECORD, CONTEMPT FOR COURTS CONTINUE TO PLAGUE BIA’S DENIAL CULTURE!

Kangaroos — Anybody remember the last time we interpreted the law or facts in favor of a human?
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Here are four more recent screw-ups:

Misinterpreting “Realistic Possibility” — 8th Cir.

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca8-on-realistic-probability—lopez-gonzalez-v-wilkinson

CA8 on “Realistic Probability” – Lopez Gonzalez v. Wilkinson

Lopez Gonzalez v. Wilkinson

“The question in this case is whether the categorical approach requires a petitioner seeking cancellation of removal to demonstrate both that the state offense he was convicted of is broader than the federal offense and that there is a realistic probability that the state actually prosecutes people for the conduct that makes the state offense broader than the federal offense. We conclude that it does not. … Because the BIA’s decision relied on a misinterpretation of the realistic probability inquiry, we grant the petition for review, vacate, and remand for further proceedings consistent with this opinion.”

[Hats off to Jamie Arango!]

2) Wrong Interpretation Of Child Status Protection Act — 2d Cir.

Cuthill v. Blinken

https://www.ca2.uscourts.gov/decisions/isysquery/05b681bb-4767-4cf6-b370-6f0ee77ad5d2/3/doc/19-3138_opn.pdf

D. Chevron Deference

Lastly, the government argues that we should defer to the decision by the Board of Immigration Appeals (“BIA”) in Matter of Zamora-Molina, 25 I. & N. Dec. 606, 611 (B.I.A. 2011), in which the BIA adopted the same interpretation as the Department of State. Even assuming, without deciding, that Chevron deference applies when one agency (the Department of State) seeks to rely on the interpretation of another agency (the Department of Justice), we agree with the district court and with the Ninth Circuit that Chevron deference does not apply here because “the intent of Congress is clear.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); see also id. at 842–43 (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”); Tovar, 882 F.3d at 900 (declining to apply Chevron deference to Zamora-Molina because “traditional tools of statutory construction” and “the irrationality of the result sought by the government” combine to “demonstrate beyond any question that Congress had a clear intent on the question at issue”). As discussed above, the text, structure, and

33

legislative history of the CSPA conclusively show the “unambiguously expressed intent of Congress” to protect beneficiaries like Diaz. Chevron, 467 U.S. at 843.7

3) Ignoring Previous Circuit Ruling On Related Case — 10th Cir.

https://www.ca10.uscourts.gov/opinions/20/20-9520.pdf

Ni v. Wilkinson, unpublished

After we determined that conditions in China had materially worsened for Christians, Mr. Ni moved again for reopening. Despite our opinion in his wife’s case, the Board of Immigration Appeals concluded

2

again that Mr. Ni had failed to show a material change in country conditions.

This conclusion is unsupportable. Mr. Ni’s evidence of worsening

conditions in China largely mirrored his wife’s evidence, which had led us

to grant her petition for review. Mr. Ni’s evidence was even stronger than

his wife’s because China had recently adopted a regulatory crackdown on

practicing Christians. We thus grant Mr. Ni’s petition for review.

4) Misconstruction Of Record — 1st. Cir.

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca1-on-albania-changed-circumstances-lucaj-v-wilkinson

CA1 on Albania, Changed Circumstances: Lucaj v. Wilkinson

Lucaj v. Wilkinson

“To support his case for reopening, Mr. Lucaj submitted an affidavit complaining in particular about two events that occurred after his removal proceeding in 2006: The Socialist party took power in 2013, and then in 2019 the Socialists’ corruption and connections with organized crime deterred the opposition party from even participating in the 2019 elections. Mr. Lucaj provided, among other things, the State Department’s 2018 Human Rights Report on Albania, the Freedom House “Freedom in the World 2018” Report on Albania, and articles from 2018 and 2019 about corruption in Albania and the Socialist Party’s success in recent elections. We do not know whether those submissions show materially worsening conditions for Democratic Party members in Albania, however, because the BIA refused to compare those reports to available evidence of conditions from 2006, claiming that Mr. Lucaj had not “explained how the proffered . . . country condition documentation show[s] qualitatively different conditions from 2006.” Plainly, though, he did so by pointing out the two cited, post-2006 events as evidence of changed conditions. The BIA’s failure to assess whether those changes were sufficient was arbitrary and capricious. … Therefore, we reverse the decision by the BIA and remand Mr. Lucaj’s case so that the BIA can review available evidence to examine whether conditions for members of the Democratic Party in Albania have deteriorated since 2006 and, if so, whether Mr. Lucaj has established a prima facie case for relief.”

[Hats off to Gregory G. Marotta!]

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

America and humanity deserve better from a supposed “expert tribunal” which actually functions more like a “denial factory” without much, if any, “quality control.” No wonder these guys are running an out of control, ever-expanding 1.3 million case backlog!

Denying continuances, not closing cases that belong at USCIS, rushed briefing, IJ’s “certifying” BIA remands to the Director (who should have no judicial role), dismissing applications for failure to fill in irrelevant blanks, raising fees, and a host of other nonsensical proposals that EOIR has had shot down by the Article III Courts recently won’t reduce the backlogs. They actually will make it worse, as have all the other “gimmicks” tried by EOIR to eradicate due process and dehumanize migrants over the past four years!

See, e.g., https://immigrationcourtside.com/2021/03/11/%e2%9a%96%ef%b8%8f%f0%9f%97%bdu-s-district-judge-susan-illston-nd-ca-shreds-enjoins-eoirs-anti-due-process-%e2%98%a0%ef%b8%8f%f0%9f%a4%aemidnight-rules-judge-p/

Who ever heard of lower court judges providing “quality control” for appellate judges, working through a bureaucrat who (at the time the proposal was supposedly “finalized”) had never presided over a case in Immigration Court? And, let’s remember, these are haphazardly selected trial judges, a decidedly non-diverse, non-representative group, whose own qualifications, expertise, judicial temperament, and training have been widely criticized by experts in the field. Few of today’s Immigration Judges and BIA Judges would be “household names” among immigration, human rights, and constitutional law experts and scholars!

See,e.g., https://immigrationcourtside.com/2021/03/08/%f0%9f%8f%b4%e2%80%8d%e2%98%a0%ef%b8%8finside-a-failed-and-unjust-system-reuters-report-explains-how-the-trump-administration-destroyed-due-process-fundamental-fairness-humanity-in-the-u-s-immig/

The current mess is largely the result of Aimless Docket Reshuffling imposed on the Immigration Courts by unqualified politicos at the DOJ and their equally unqualified toadies at EOIR HQ. Also, DHS has more often than not ignored the realities of good docket management and the prudent exercise of prosecutorial discretion. It is not the fault of the vulnerable migrants and their lawyers victimized by this absurdly politicized, biased, and mal-administered system!

Restoration of justice at EOIR will require radical due process oriented changes starting with new, professional leadership from “practical scholars” in immigration and human rights as well as replacing BIA Judges with better qualified jurists selected from the ranks of those “practical scholars.” Quality control, expertise, competence, common sense, and human understanding are all lacking at today’s EOIR!

Judge Garland must “clean house!” Now!

🇺🇸⚖️🗽Due Process Forever!

PWS

03-12-21

⚖️🗽U.S. DISTRICT JUDGE SUSAN ILLSTON (ND CA) SHREDS, ENJOINS EOIR’S ANTI-DUE-PROCESS ☠️🤮“MIDNIGHT RULES” — Judge Praises, Cites Round Table’s 🛡⚔️ Amicus Brief!

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

https://www.courthousenews.com/judge-likely-to-block-trump-era-changes-to-immigration-court/

Here’s an excerpt from a report by Nichols Iovino @ Courthouse News:

. . . .

The judge added that she found an amicus brief submitted by 37 former immigration law judges particularly illuminating because it helped illustrate some of “real-life consequences” of the rule.

The former immigration judges wrote that the rule “makes it more difficult for applicants and defense counsel to brief relevant issues and present evidence, creates new challenges for immigration judges to consider extraordinary changes in circumstances and to control the timing of their own docket, and severely limits the [Board of Immigration Appeals’] authority to make legally sound decisions and remain an apolitical rung in the immigration system.”

A motion for a preliminary injunction is also pending in separate lawsuit challenging the same Trump-era rule in the District of Columbia.

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

Yesterday, Judge Illston issued a blistering 73-page order enjoining EOIR’S illegal rules: https://www.courtlistener.com/recap/gov.uscourts.cand.372189/gov.uscourts.cand.372189.59.0.pdf

The case is CENTRO LEGAL DE LA RAZA v. EOIR.

“Sir Jeffrey” Chase reports:

Judge Illston referenced our brief four times throughout the opinion (p.5, n.2, and pp. 39, 52, and 55).

Jeffrey also added:

The brief (drafted by Steven Schulman and his team at Akin Gump) was based on our Round Table’s comments to the proposed regs. [Judge] Ilyce [Shugall] organized and filed the comments, and the drafting committee was made up of [Judges] Ilyce [Shugall], Rebecca [Jamil], Joan [Churchill], Cecelia [Espenoza] and myself.

So proud to be part of this team that is “making a difference for the NDPA,” and more importantly, for the vulnerable human lives at stake in the EOIR Star Chambers. 🏴‍☠️ And thanks so much to Steven Schulman and his pro bono team at Akin Gump for making this happen.

So, here’s my question: Why is the Biden Administration defending this totally illegal, disingenuous, not to mention stupid, attempt by EOIR to deny due process and fundamental fairness while implementing the “worst practices imaginable?”

Judge Garland must get a handle on the awful, festering mess 🤮🤡☠️ at EOIR sooner rather than later!

🇺🇸⚖️🗽Due Process Forever!

PWS

03-11-21

⚖️🗽🛡RECOGNIZING WOMEN REFUGEES: Professor Karen Musalo @ ImmigrationProf Blog — Don’t Add A “6th Protected Ground” To The Statute; Get Some Better-Qualified Judges 🧑🏽‍⚖️ Who Will Respect & Follow Existing Law To Protect Those Already Covered, But Wrongfully Denied Refuge By Bad Judging & Restrictionist Policies!

https://lawprofessors.typepad.com/immigration/2021/03/guest-post-the-wrong-answer-to-the-right-question-how-to-address-the-failure-of-protection-for-gende.html

By Immigration Prof

Share

The Wrong Answer to the Right Question: How to Address the Failure of Protection for Gender-Based Claims?

By Professor Karen Musalo, Bank of America Professor of International Law, Director of the Center for Gender & Refugee Studies, UC Hastings

In 1996 I was honored to litigate the first case at the Board of Immigration Appeals (BIA), Matter of Kasinga,[1] that opened the door to protection for women fleeing gender-based harms. To qualify for recognition as a refugee under U.S. law, an individual must establish “persecution or a well-founded fear of persecution” on account of one of five grounds – “race, religion, nationality, political opinion or membership in a particular social group.”[2] This definition in the 1980 Refugee Act essentially adopts the standard set forth in the 1951 UN Refugee Convention[3] and its 1967 U.N. Refugee Protocol,[4] which the U.S. ratified in 1968.

The woman seeking asylum in the Kasinga case fled female genital cutting and forced marriage. In a ground-breaking decision, the BIA ruled that cutting was persecution, and it was “on account of” her membership in a gender-defined social group. In so ruling, the BIA was following the guidance that UNHCR has issued over a number of years, noting that the absence of gender as a protected ground should not impede protection for women fleeing persecution, because the particular social group ground encompasses gender-defined groups.[5]

The Kasinga decision was a breakthrough for women, and a highwater mark in U.S. adjudicators following international guidance. It also raised expectations that U.S. law would continue to evolve and extend protection to women fleeing the many forms of gender-based violence to which they are subject. However, that has not been the case, and there have been retreats from protection across administrations, although undoubtedly we witnessed the most dramatic attempts to end protection in gender claims during the Trump administration, which issued extremely limiting Attorney General decisions, such as Matter of A-B- I,[6] and Matter of A-B- II –[7] as well as regulations[8] – currently enjoined[9]—that explicitly rule out gender-based claims.

The Biden administration has committed itself to reviewing the issue of protection for those fleeing gender-based violence.[10] As we consider how to remedy the issue, some argue for a legislative amendment to the refugee definition, adding gender as a sixth ground to the statute’s five protected grounds of race, religion, nationality, political opinion and membership in a particular social group. This is the wrong solution. It would not only repeat the errors of the past (amending the refugee definition in 1996, discussed below), but it would also fail to adequately protect survivors of gender-based violence. At the same time, it would lead to the quite foreseeable consequence of leaving many deserving asylum seekers outside the ambit of refugee protection. It is also likely to signal to other Convention State parties that unless they also add a sixth ground, they could deny protection to women and girls without running afoul of the treaty’s obligations.

In order to prescribe a remedy, one first has to diagnose the illness; in order to understand why the sixth ground solution is wrong, we need to examine what occurred after Kasinga that limited protection in subsequent claims involving women fleeing gender-based persecution. . . . .

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

Read the rest of Karen’s outstanding analysis at the link.

Here’s a question from last summer’s “Jeopardy style” final exam in Immigration Law & Policy @ Georgetown Law:

A: Judge Schmidt’s favorite case.

Q: What is Matter of Kasinga?

Happy to say that everyone got that one right! Of course, I wrote the decision in Matter of Kasinga!

Karen’s bottom line: “We should be working to bring the U.S. into compliance with UNHCR’s social group interpretation, rather than surrendering to its flawed interpretation, by adding a sixth ground.”

The key is better Federal Judges, from the Immigration Courts all the way up to the Supremes: Judges who are “practical scholars” in human rights and applied due process; judges who have represented asylum seekers, particularly women, and understand their plight.

This week, President Biden announced the creation of the White House Gender Policy Council. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/03/08/executive-order-on-establishment-of-the-white-house-gender-policy-council/

That’s a nice gesture. But, as I always say, actions are what really counts. So here are actions that Judge Garland can take immediately as Attorney General to finally fulfill the promise of Matter of Kasinga:

Vacate the atrocious, misogynist, perversion of asylum law (not to mention facts of record) by Sessions in Matter of A-B-;
Appoint some female “practical scholars in human rights” to appellate judgeships on the BIA.

That’s how to really honor Women’s History Month!

To understand the human impact of Sessions’s grotesque misconstruction of asylum law and the relevant facts in Matter of A-B-, check out this video short featuring Karen and others along with Ms. A-B-: https://www.youtube.com/watch?v=QRQpXRWlQL0

I generally agree with Karen’s concerns about specific gender-based legislation potentially having an unintended negative effect. That is certainly the fate of past unsuccessful attempts to include gender-based asylum in the regulations.

They essentially were “hijacked” by DOJ litigators and enforcement-oriented policy officials looking for ways to facially appease women’s rights groups, while actually proposing to restrict eligibility and make it easier for OIL and the SG’s Office to defend denials of asylum. They also sought to create hyper-technical requirements that would have effectively made it impossible for any unrepresented individual to properly set forth a “cognizable particular social group.”

These, in and of themselves, are reasons for removing the Immigration Courts from the DOJ and creating an independent Article I structure. The “ultimate insult to injury” was when EOIR enthusiastically participated in Stephen Miller’s currently-enjoined attempt to completely write gender-based asylum out of the law. Absurdly, that came at a time when gender-based persecution has become endemic throughout the world!

Not surprisingly, the DOJ, a prosecutorial agency at heart, is most often interested in “litigation strategies” to make it easier for the Government to successfully defend the burgeoning immigration litigation in Federal Court, rather than guaranteeing justice for asylum seekers and other migrants. Quite ironically, what would really reduce the volume of civil immigration litigation is more practical, expert decision making from better qualified Immigration Judges at the “retail level” of the system.

Gimmicks to “game” the Federal Court system against asylum seekers and other migrants by skirting due process and fundamental fairness have actually contributed to, rather than reduced, the amount of civil immigration litigation the Circuits. It has also generated many avoidable “Circuit conflicts” that require attention on Supremes’ limited docket. The failure of the DOJ, the Immigration Courts, and the Federal Courts to recognize and protect the due process rights of asylum seekers and other migrants has directly carried over into the failure of our justice system to achieve equal justice under law for racial minorities.

“Institutionalized racism” is inextricably linked to “Dred Scottification” of migrants of color in the Immigration Courts! The Biden Administration can’t solve the former without addressing the latter!

Bad judging and skewed policies on the “retail level” create multiple problems that adversely affect the entire Federal Justice system. I guarantee that they will not be solved by more restrictionist gimmicks and and unduly narrow and tone-deaf interpretations by judges and policy officials who lack the necessary expertise in immigration and human rights laws and the real-life understanding and perspective of the human consequences of the choices that judges make on a daily basis.

But, I also think that in addition to better judges, it is important to revise the statutory language to make it more explicitly inclusive and clarify that gender-based asylum, family based asylum, and other protected groups are examples, but not limits, of those covered by “particular social group.” Also, the statute should reverse the BIA’s stilted restrictionist interpretations (all too often incorrectly given “deference” by Circuit Courts shirking their duty) of “nexus” as a vehicle to deny asylum rather than an expansive concept that can and should be used to extend life-saving protections where necessary.

Otherwise, as Trump, Sessions, Barr, and Miller demonstrated, needed protection becomes largely a matter of who is appointing the judges at any particular point in time. Protection must and should be more durable — for all refugees including, but not limited, to those seeking gender-based protection!

Better Federal Judges are the beginning, but by no means the end, of what is needed to make due process, fundamental fairness, and genuine refugee protections the hallmarks of American law. They are also required to turn institutionalized racism into equal justice for all persons in America, regardless of race, religion, gender, or other defining personal characteristics.

🇺🇸⚖️🗽Due Process Forever! Asylum Laws Must Protect, Not Reject!🧑🏽‍⚖️🛡

PWS

03-10-21

⚖️“THERE’S A BIGGER CHALLENGE FACING THE BIDEN ADMINISTRATION!” — Broken Immigration Courts 👎🏻⚖️ — It’s Not Just Dumb & Inhumane Rules Imposed By The Trump Regime — It’s A Toxic “Mindset” Among Some EOIR Judges That Mirrors & Reinforces The Dehumanizing Actions Of ICE Enforcement!☠️

https://www.chicagotribune.com/opinion/commentary/ct-opinion-immigration-deportation-biden-20210304-ftq7zit5j5altchueuwm3rjxny-story.html

Stephen Franklin in the Chicago Tribune;

. . . .

The Biden administration has signaled that it would like to narrow arrests and deportations to those persons convicted of national security threats and other serious felonies. That would keep many of those, like the fast-food worker in Indianapolis, from immigrant court.

But there’s a bigger challenge facing the Biden administration.

Can it wipe away rules that have fed into a mindset that seemed to take root nationally among some court and immigration enforcement officials?

The rules were meant to erase an immigrant presence in the U.S. And they came to life far away from the nation’s borders in the daily grind of the immigration courts. For well over two years, I sat in Chicago’s immigration court watching, reporting and wondering how his could be happening.

Day by day I watched as the crowds huddled anxiously in the Chicago court’s major waiting room grew. Judges’ caseloads, as listed on the waiting room walls, eventually doubled for some to as many as 100 a day.

Why?

When Trump took office there were 542,411 deportation cases in the nation’s immigration courts. When he left, the number was 1.29 million. The backlog grew as arrests grew, as more were detained, as bonds went up, and new rules raised new hurdles for immigrants in the courts. The average wait for a case in Chicago’s court was 945 days in 2016, and that grew to 1,014 in 2021, 14% higher than the national average.

The long wait perplexed a judge one day as she scanned her computer looking to schedule a new hearing. The best she could find, she told an Iraqi woman in her 80s, was a date four years down the road. The long delay was not lost on the woman’s lawyer’s face. The woman’s husband was not in court because he was facing brain surgery.

A series of canceled hearings left a middle-age Palestinian’s life dangling in the court for seven years. The long delay left him anxious and panicked about the fate of his family back home, where they faced the threat of violence that had already taken several relatives’ lives. He won asylum but several months later, and before he could bring his family to the U.S., his teenage son was killed, a targeted victim of the violence that had haunted him and his relatives.

I took note after the Trump administration said in August 2019 it would push older cases back in 10 courts across the U.S., including Chicago, so that cases involving newly arrived immigrant families could move more rapidly through the courts. It was a clear warning that the U.S. would deal quickly with immigrants arriving at its borders.

. . . .

**********

Read the complete op-ed at the link.

The solutions are not rocket science. As many of us have suggested they include:

New leadership at EOIR firmly committed to judicial independence, due process, best practices and competent judicial Administration;
New judges at the BIA — “practical experts” in asylum and immigration laws committed to due process, fair application of the law, and humane treatment of individuals;
Slash the docket immediately to manageable levels by removing aged cases that would fit the legalization proposals in the Biden Bill or where relief could be granted by USCIS;
Get recent arrivals represented and decide their cases on a fair, reasonable, timely, predictable schedule (e.g., end “Aimless Docket Reshuffling”);
Establish and implement merit-based criteria for recruitment and retention of judges.

It won’t happen without new personnel and different attitudes. There’s plenty of talent out here to rebuild a high-quality, expert, due-process oriented immigration judiciary. Judge Garland and his team just have to move out those who have created and furthered dysfunction and replace them with better-qualified pros who can get the job done for American justice and the millions of individuals whose lives, hopes, and futures are tied up in the EOIR mess !

Article I is the ultimate solution! But, Judge Garland can start making long overdue changes the day he is sworn in as AG (probably later this week). The only question: Will he?

A Better EOIR For A Better America!🇺🇸It’s not rocket science!🚀

🇺🇸⚖️🗽Due Process Forever!

PWS

03-08-21

⚖️BIDEN ADMINISTRATION TAKES INNOVATIVE APPROACH TO KEEPING ICE ENFORCEMENT HONEST — “ICE Case Review Process” Lets Those Affected Seek Review!

https://www.buzzfeednews.com/article/hamedaleaziz/ice-immigrants-new-appeals-process

Hamed Aleaziz reports for BuzzFeed News:

Immigration and Customs Enforcement officials have created a new appeals process that will allow immigrants and their advocates to challenge arrests, detentions, and deportations as the Biden administration continues to focus enforcement actions on certain populations, officials said Friday.

The new program, which establishes the ICE Case Review Process led by a senior reviewing officer based in Washington, DC, is part of President Joe Biden’s efforts to overhaul the agency and reform not only how it works but which immigrants are arrested and detained.

. . . .

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

Read Hamed’s complete article at the link.

Shows that somebody in charge in the Biden Administration understands the scope of the problems they face in bringing ICE under control.

Compliance with agency policies has always been an issue at ICE, going all the way back to the days of the “Legacy INS.” Both on and off the bench, I observed that most policies applied only to the extent that local directors and agents chose to follow them.

I can remember essentially being told “We don’t follow that policy here,” or words to that effect. Or the time that an ICE Assistant Chief Counsel cheerfully told me in court: “Judge, you can enter any order you want. But, our deportation officer will decide whether this respondent actually gets released from custody.”

No wonder that ACC didn’t feel it necessary to appeal my custody decision after I had ruled against him. Of course, DOJ regulations (actually enacted by the Clinton Administration) give ICE Counsel unilateral authority (“The Clamper”) to stay compliance with IJ release and bond orders pending appeal. So, ICE always holds the “trump card” in bond proceedings.

Fortunately, represented respondents can threaten to go to U.S. District Court to force ICE compliance with an administrative order, if necessary. (The respondent in my case was represented.) But, for unrepresented individuals facing ICE intransigence, not so much.
That’s probably why a culture of disdain for immigrants’ rights and dislike of lawyers has grown up in so many ICE operations.

I also recollect that even in the Obama Administration, under pressure from ICE Enforcement, EOIR Management pushed Immigration Judges to “keep out of” the manner in which ICE complied with things like the “Morton Memo” or “PD” that should have been keeping certain cases out of court. And the BIA has traditionally stayed away from commenting on or reviewing prosecutorial policies, even when they directly affect court workloads or individual outcomes.

There were creative ways of skirting many of these bureaucratically-imposed blinders and pushing ICE, at least in court, to act in accordance with their own policies. But, it had to be done subtilely. EOIR was usually eager officially to announce its own fecklessness when it came to getting compliance from ICE.

I often marveled at the BIA’s ability to explain why it didn’t have authority to solve problems or do justice. In some instances, the Article III Courts actually had to instruct the BIA that they had authority to do things that they had claimed to be powerless to do.

In addition to the ICE policy described in Hamed’s article, there are other obvious ways in which compliance could be strengthened. Judge Garland could create a “New EOIR” dedicated to the original vision of due process, fundamental fairness, and best practices. He could also empower Immigration Judges to hold ICE accountable for following its own policies. As part of this, he could confer the long-existing but never implemented authority of EOIR judges to hold attorneys on both sides in contempt of court.

An independent Immigration Judiciary could be an important part of enforcing the rule of law and holding DHS accountable for its actions. But, that’s not possible with the current structural, personnel, and cultural defects that have corrupted EOIR and prevented it from being a progressive force for due process, equal justice under law, and best practices.

Indeed, under the departed regime, lack of accountability, irrationality, open bias, scofflaw behavior, and “worst practices” were institutionalized and celebrated from top to bottom! This was in a “system” already heavily weighted in favor of ICE Enforcement and against individual rights.

It will require “radical due process reforms @ EOIR” from Judge Garland and his team. We’ll soon see whether or not that will be forthcoming.

Folks who have been happily assisting in abusing and dehumanizing asylum seekers, other migrants, and their lawyers for the past four years are not lightly going to be able to “switch over” to insuring due process and fundamentally fair adjudications under the best interpretations and practices — which actually favor the granting of relief in a timely and efficient manner in many cases. Indeed, in some cases, those serving as “judges” at EOIR appear to lack the capacity, expertise, and will to treat those coming before them fairly, impartially, and humanely, even these requirements are at the heart of constitutionally required due process!

🇺🇸🗽⚖️Due Process Forever!

PWS

03-07-21

LATEST FROM “SIR JEFFREY” 🛡⚔️ — “Determining Political Opinion: Problems and Solutions — Jeffrey S. Chase | Opinions/Analysis on Immigration Law”

https://www.jeffreyschase.com/blog/2021/3/7/determining-political-opinion-problems-and-solutions

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

Determining Political Opinion: Problems and Solutions

Regarding political opinion, the refugee law scholar Atle Grahl-Madsen famously explained that refugee protection “is designed to suit the situation of common [people], not only that of philosophers…The instinctive or spontaneous reaction to usurpation or oppression is [as] equally valid” as the “educated, cultivated, reflected opinion.”1 A recent decision of the U.S. Court of Appeals for the Second Circuit provides an opportunity to reflect on this premise.

In Zelaya-Moreno v. Wilkinson, a young man was targeted for recruitment by MS-13. On two occasions, Zelaya directly announced to the gang’s members his reason for refusing to join: because gangs were bad for his hometown and country. Both times, the gang members responded by beating him, fracturing his arm the second time. They also threatened to kill him if he continued to refuse to join. The questions raised are whether Zelaya’s instinctive, simply-worded response expressed a political opinion, and if so, did that opinion form part of the reason for the beatings and threat?

The Immigration Judge recognized Zelaya’s statement to the gang to be a political opinion for asylum purposes. However, the IJ wasn’t persuaded from the record that Zelaya’s opinion was why the gang beat him. As expressed by the IJ, the beatings were caused by “Zelaya’s refusal to join the gang, irrespective of the reasons.” It doesn’t seem that the IJ considered whether the gang members imputed a political opinion to the act of refusal per se.

On appeal, the BIA took a far more extreme position, stating that because gangs are not political organizations and their activities are not political in nature, “expressing an opinion against their group is not expressing a political opinion.” This happens to be a position that EOIR and DHS (in defiance of much circuit case law and expert opinion to the contrary) later sought to codify in regulations that fortunately remain enjoined at present.

The Second Circuit in Zelaya-Moreno rejected the Board’s narrow view of political opinion. In fact, the court only last year, in its decision in Hernandez-Chacon v. Barr, recognized the act of resisting rape by members of the very same gang in El Salvador as the expression of a feminist, anti-patriarchy political opinion. Significantly, the victim in that case hadn’t stated any opinion to the gang members; it was only years later in front of the immigration judge that she gave her reason for resisting as “because I have every right to.”

As it has done in other decisions, the Second Circuit emphasized the need for a “complex and contextual factual inquiry” in political opinion determinations. It conducted a survey of cases in which political opinion was found, and of others in which it wasn’t. Unfortunately, the majority upheld the decision that Zelaya had not expressed a political opinion to the MS-13 members, stating that “[s]o far as the record shows, his objection to them is not rooted in any sort of disagreement with the policies they seek to impose nor any ideology they espouse.”

“So far as the record shows” is critical. I haven’t seen the record in this case, but I believe it might serve to demonstrate that while Grahl-Madsen correctly assigned equal validity to the opinions of the commoner and the intellectual, in practice, claims brought by members of the former group often require assistance from the latter in persuading adjudicators of the political nature of their words or actions.

For example, in Hernandez-Chacon, context for the petitioner’s resistance was provided by the affidavit of a lawyer and human rights expert who was able to articulate the patriarchal gender bias in Salvadoran society from which a political opinion could be gleaned from the asylum-seeker’s act of resistance alone. In another decision cited by the court, Alvarez-Lagos v. Barr, the Fourth Circuit was able to rely on the explanation of two experts on Central American gangs that the petitioner’s refusal to comply with extortion demands would be viewed by the gang as “political opposition” and “a form of political disobedience.”

In Zelaya-Moreno, the dissenting judge (in an opinion worth reading) was able to draw a political inference from the facts alone. It seemed that the two judges in the majority required more. But in finding the statements or actions of an applicant alone to be insufficient, is our present system of refugee protection genuinely designed to suit the situation of common people as well as philosophers?

In the view of the dissenting judge, yes. In that judge’s words, Zelaya “sought refuge here after standing up to MS members, refusing their demands that he join them, and informing them that he did not support them and considered them a blight on his native El Salvador. Our asylum laws protect individuals like Zelaya-Moreno who face persecution for such politically courageous stands.”

But in the view of the majority, Zelaya had expressed nothing “more than the generalized statement ‘gangs are bad.’ Thus, we cannot conclude that Zelaya holds a political opinion within the meaning of the statute, and therefore that the BIA erred in concluding that he was not eligible for asylum on this ground.” Would additional documentation providing the complex, contextual analysis the court mentioned earlier in its decision have delivered the two judges in the majority to the place already reached by their dissenting colleague?

The United Nations High Commissioner on Refugees is a good reference source on such issues. In its Guidance Note on Refugee Claims Relating to Victims of Organized Crimes, UNHCR stated at para. 45 that in its view, “political opinion needs to be understood in a broad sense to encompass “any opinion on any matter in which the machinery of State, government, society, or policy may be engaged.” It continued at para. 47 that powerful gangs such as MS-13 may exercise de facto power in certain areas, and their activities and those of certain State agents may be closely intertwined. At para. 50, UNHCR stated that “rejecting a recruitment attempt may convey anti-gang sentiments as clearly as an opinion expressed in a more traditional political manner by, for instance, vocalizing criticism of gangs in public meetings or campaigns.” And at para. 51, UNHCR added that “[p]olitical opinion can also be imputed to the applicant by the gang without the applicant taking any action or making a particular statement him/herself. A refusal to give in to the demands of a gang is viewed by gangs as an act of betrayal, and gangs typically impute anti-gang sentiment to the victim whether or not s/he voices actual gang opposition.”

Had this document been included in the record, would it have been enough to persuade the majority that the BIA had erred in rejecting Zelaya’s claim that he was targeted on account of his political opinion? If so, how many pro se asylum applicants would understand the need to supplement their claims to provide this context, or know what type of document would be sufficient, or how to find it?

The Seventh Circuit had foreseen this problem 15 years ago. In a 2006 decision, Banks v. Gonzales, the court opined that Immigration Court needs its own country experts, who would operate much as vocational experts do in disability hearings before the Social Security Administration’s judges. In my opinion, an alternative approach would be for EOIR to follow the example of the Immigration and Refugee Board of Canada, which maintains National Documentation Packages that are referenced in all cases by adjudicators of refugee claims.

During my time in government, I oversaw the creation of country condition pages on EOIR’s Virtual Law Library, which were built, and continue to be updated, by EOIR’s Law Library staff. However, EOIR did not see fit to make its contents part of the records of hearing in asylum cases. It is for this reason that UNHCR’s Eligibility Guidelines For Assessing International Protection Needs of Asylum Seekers in El Salvador, which contains much of the same language as the Guidance Note quoted above, and which expresses the specific conclusion that “persons perceived by a gang as contravening its rules or resisting its authority may be in need of international refugee protection on the grounds of their (imputed) political opinion,”2 is found on EOIR’s own website on the country page for “El Salvador,” yet wasn’t even considered in Zelaya-Moreno.

Considering the growing number of pro se applicants, the lack of legal resources available to those held in remote detention facilities, and the short time frame to prepare for hearings in certain categories of cases, I can’t see why the EOIR country pages should not be made part of the hearing record here as in Canada. It’s possible that such a policy would have led to a different result in Zelaya.

Furthermore, the BIA hears plenty of cases involving expert opinions supporting the conclusion that those resisting gangs such as MS-13 were harmed on account of their political opinion. Issuing precedent opinions recognizing the context that politicizes statements and actions such as Zelaya’s would result in much greater efficiency, consistency, and fairness in Immigration Court and Asylum Office adjudications.

Realistically, I harbor no illusions that the recent change in administration will bring about such enlightened changes to asylum adjudication anytime soon. But we must still continue to argue for such change. As the dissenting opinion in Zelaya stated in its conclusion: “[w]hile it may be too late for Zelaya-Moreno, the BIA and the Department of Justice can right this wrong for future asylum seekers. I urge them to reconsider their approach to anti-gang political opinion cases to ensure those who stand up to fearsome dangers are welcomed into this country rather than forced back to face torture and death.” As noted above, it wouldn’t take much effort on EOIR’s part to accomplish this.

Notes:

Atle Grahl-Madsen, The Status of Refugees in International Law, 228, 251 (1966) (quoted in Deborah E. Anker, The Law of Asylum in the United States (2020 Ed.) § 5:17, fn. 3.

UNHCR Eligibility Guidelines For Assessing International Protection Needs of Asylum Seekers in El Salvador at 29-30.

Copyright 2021 Jeffrey S. Chase. All rights reserved.

Reprinted with permission.

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

Truly wonderful, Jeffrey! One of your “best ever,” in my view! (And, they are all great, so that’s saying something.)

Imagine what could be achieved at the BIA with real judges, experts in asylum law, thoughtful, practical analysis, intellectual leadership, and inspiration to a fairer future, rather than the current Clown Show 🤡🦹🏿‍♂️ inventing bogus ways to ”get to no!”

As Jeffrey demonstrates, we could choose to protect rather than to reject. There has always been a tendency to do the latter at the DOJ; but, under White Nationalist nativist Jeff Sessions and his successors it has gone “hog wild” — rejection has been falsely portrayed as a “duty” rather than an extremely poor choice and an abdication of moral and legal responsibility!

Today’s BIA is basically incapable of problem solving. Time and again their strained, stilted anti-immigrant, anti-due-process, pro-worst-practices interpretations not only spell doom for those coming before them, but also promote inefficiency and backlogs in an already overwhelmed system. They also send messages of disdain and disrespect for the rights and humanity of people of color that redounds throughout our struggling U.S. Legal System.

I’ll keep saying it: Whatever positive message Judge Garland and his team at DOJ intend to send about racial justice will be fatally undermined as long as “Dred Scottification” and disdain for the due process rights of migrants is the “order of the day” at the one Federal Court System the DOJ runs: The U.S. Immigration Court! As long as EOIR is a “bad joke” the rest of Judge Garland’s reforms will fall flat!

The right judges 🧑🏽‍⚖️ at the BIA could turn this thing around! Remains to be seen if it will happen. But, it’s not rocket science. It just requires putting the right folks in charge, in place, and giving them the support and independence to engage in “creative problem solving.”

Judge Garland should be confirmed next week. And the confirmation hearings for Lisa Monaco (DAG) and Vanita Gupta (AAG) have been scheduled.

Some additional points:

The dissenter in the Second Circuit’s decision in Zelaya-Moreno v. Wilkinson is Judge Rosemary Pooler. Judge Pooler has had a long and distinguished career. Perhaps she would like to cap it off by becoming Chair of the BIA and leading by example;
Shows the importance of experts, which is probably why the BIA has gone out of its way to demean them and encourage IJs to ignore their evidence;
Jeffrey’s analysis supports my “Better BIA for a Better America” 🇺🇸program;
As Justice Sotomayor says: “It is not justice.” That’s my view on today’s EOIR!

Due Process Forever! ⚖️🗽

PWS

03-07-21

🏴‍☠️BIA CONTINUES TO SPEW FORTH ERRORS IN LIFE OR DEATH ☠️ ASYLUM CASES, SAYS 4TH CIR. — “Three-In-One” — Improperly Disregarding Corroborating Evidence; Incorrect Legal Standard On Past Persecution; Wrong Nexus Finding! — Arita-Deras v. Wilkinson

Four Horsemen — BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

https://www.ca4.uscourts.gov/opinions/191978.P.pdf

Arita-Deras v. Wilkinson, 4th Cir., 03-05-21, Published

PANEL: GREGORY, Chief Judge, and AGEE and KEENAN, Circuit Judges

OPINION BY: Judge Barbara Milano Keenan

KEY QUOTE:

Maria Del Refugio Arita-Deras, a native and citizen of Honduras, petitions for review of a final order of removal entered by the Board of Immigration Appeals (the Board).1 The Board affirmed an immigration judge’s (IJ) conclusion that Arita-Deras was not eligible for asylum, withholding of removal, or protection under the Convention Against Torture (CAT). The Board: (1) agreed with the IJ that Arita-Deras failed to support her claims with sufficient corroborating evidence; (2) found that Arita-Deras failed to prove that she suffered from past persecution because she had not been harmed physically; and (3) concluded that Arita-Deras failed to establish a nexus between the alleged persecution and a protected ground.

Upon our review, we conclude that the Board improperly discounted Arita-Deras’ corroborating evidence, applied an incorrect legal standard for determining past persecution, and erred in its nexus determination. Accordingly, we grant Arita-Deras’ petition and remand her case to the Board for further proceedings.

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

After eight years of bouncing around the system at various levels THIS “Not Quite Good Enough For Government Work” error-fest is what we get from EOIR! As I keep saying, no wonder they are running a 1.3 million case backlog, clogging the Circuit Courts with incredibly shoddy work, and in many cases sending vulnerable refugees back to death or torture under incorrect fact findings and blatantly wrong legal interpretations!

Again, nothing profound about this claim; just basic legal and analytical errors that often flow from the “think of any reason to deny” culture. EOIR just keeps repeating the same basic mistakes again and again even after being “outed” by the Circuits!

This case illustrates why the unrealistically high asylum denial numbers generated by the biased EOIR system and parroted by DHS should never be trusted. This respondent, appearing initially without a lawyer, was actually coerced by an Immigration Judge into accepting a “final order” of removal with a totally incorrect, inane, mis-statement of the law. “Haste makes waste,” shoddy, corner cutting procedures, judges deficient in asylum legal knowledge, and a stunning lack of commitment to due process and fundamental fairness are a burden to our justice system in addition to being a threat to the lives of individual asylum seekers.

Only when she got a lawyer prior to removal was this respondent able to get her case reopened for a full asylum hearing. Even then, the IJ and the BIA both totally screwed up the analysis and entered incorrect orders. Only because this respondent was fortunate enough to be assisted by one of the premier pro bono groups in America, the CAIR Coalition, was she able to get some semblance of justice on appeal to the Circuit Court!

I’m very proud to say that a member of the “CAIR Team,” Adina Appelbaum, program Director, Immigration Impact Lab, is my former Georgetown ILP student, former Arlington Intern, and a “charter member” of the NDPA! If my memory serves me correctly, she is also a star alum of the CALS Asylum Clinic @ Georgetown Law. No wonder Adina made the Forbes “30 Under 30” list of young Americans leaders! She and others like her in the NDPA are ready to go in and start cleaning up and improving EOIR right now! Judge Garland take note!

Despite CAIR’s outstanding efforts, Ms. Arita-Deras still is nowhere near getting the relief to which she should be entitled under a proper application of the law by expert judges committed to due process. Instead, after eight years, she plunges back into EOIR’s 1.3 million case “never never land” where she might once again end up with Immigration Judges at both the trial and appellate level who are not qualified to be hearing asylum cases because they don’t know the law and they are “programmed to deny” to meet their “deportation quotas” in support of ICE Enforcement.

Focus on it folks! This is America; yet individuals on trial for their lives face a prosecutor and a “judge” who are on the same side! And, they are often forced to do it without a lawyer and without even understanding the complex proceedings going on around them! How is this justice? It isn’t! So why is it allowed to continue?

Also, let’s not forget that under the recently departed regime, EOIR falsely claimed that having an attorney didn’t make a difference in success rates for respondents. That’s poppycock! Actually, as the Vera Institute recently documented the success rate for represented respondents is an astounding 10X that of unrepresented individuals. In any functional system, that differential would be more than sufficient to establish a “prima facie” denial of due process any time an asylum seeker (particularly one in detention) is forced to proceed without representation.

🇺🇸⚖️🗽🧑🏽‍⚖️VERA INSTITUTE RECOMMENDS FEDERAL DEFENDER PROGRAM FOR IMMIGRANTS — Widespread Public Support For Representation In Immigration Court!

Yet, this miscarriage of justice occurs every day in Immigration Courts throughout America! Worse yet, EOIR and DHS have purposely “rigged” the system in various ways to impede and discourage effective representation.

To date, while flagging EOIR for numerous life-threatening errors, the Article IIIs have failed to come to grips with the obvious: The current EOIR system provides neither due process nor fundamental fairness to the individuals coming before these “courts” (that aren’t “courts” at all)!

Acting AG Wilkinson has piled up an impressive string of legal defeats in immigration matters in just a short time on the job. It’s going to be up to Judge Garland to finally make it right. It’s urgent for both our nation and the individuals whose rights are being stomped upon by a broken system on a daily basis!

🇺🇸⚖️🗽Due Process Forever! Failed Courts Never!

PWS

03–05-21

“ELECTIONS HAVE CONSEQUENCES” — Biden Administration Ends Trump’s Fruitless Campaign Against States & Cities — Dean Kevin Johnson With A Summary From ImmigrationProf Blog!

https://lawprofessors.typepad.com/immigration/2021/03/justice-dept-asks-supreme-court-to-dismiss-sanctuary-immigration-suits.html

Elections truly do have consequences. The Biden administration in its early days has removed some high profile immigration cases from the Supreme Court docket, moving in a different direction than the Trump administration. NBC News reports (see also CNN and Bloomberg) that, yesterday, the Justice Department asked the Court to dismiss three lawsuits over the lawfulness of the Trump administration’s efforts to de-fund “sanctuary’ cities.

In brief letters to the Supreme Court, the Justice Department said the cases should be dismissed, indicating that the government will no longer seek to enforce that policy.

Lower courts were divided on the legality of the Trump de-funding policy. The Supreme Court had been deferring action on the appeals while the new administration decided how to handle the cases. The cases are Wilkinson v. San Francisco, 20-666; New York v. Department of Justice, 20-795; and City of New York v. Department of Justice, 20-796.

KJ

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

Thanks for the nice summary and links, Kevin!

The Trump regime waged a four-year unsuccessful war against American local governments who were seeking to protect their ethnic communities from ICE abuses and to encourage community cooperation with police in addressing violent crime in those communities. How did they go about it: By threatening to cut off certain Federal funding for local law enforcement.

If it sounds stupid and wasteful, that’s because it was. It also helped make ICE probably “the most despised law enforcement agency in America.” Again, not an effective strategy for real cooperative law enforcement.

But, despite all his bluster and false claims, Trump never, ever was about “law enforcement.” That was clear even before he sent his “magamorons” out to attack our Capitol. No, it always was about stoking fear, hate, and throwing “red meat” to his base for political purposes.

PWS

03-05-21

🇺🇸🗽NEW VISION: Biden Administration Reportedly Plans To Turn Gulags Into “Rapid Processing Centers!”

https://apple.news/A_66ulAuzRTeEZzT59d_vTw

Celine Castronuovo reports in The Hill:

The Department of Homeland Security (DHS) is reportedly drafting plans to transform family migrant detention centers in South Texas into screening hubs as the Biden administration faces a growing number of migrants at the southern border.

The Washington Post, which obtained internal DHS draft documents outlining the plans, reported Thursday that senior ICE official Russell Hott informed staff in an email this week that the number of unaccompanied minors and families arriving in the U.S. in 2021 is “expected to be the highest” recorded “in over 20 years.”

According to the Post, Hott added that with more than 500 family members arriving per day, the shift from detention to Ellis Island-style processing centers “may not be sufficient to keep pace with apprehensions,” with the potential for some migrants to be housed in hotels.

DHS officials, who spoke to the Post on the condition of anonymity because they were not authorized to speak publicly, said the transition to rapid processing and release centers has already begun.

The reported change comes as the latest move in President Biden’s efforts to reform the U.S. immigration system and keep up with the rising number of migrants crossing into the country amid shortages of bed space and personnel at detention centers.

The reported plans also mark a shift from policies under the Obama and Trump administrations, when most migrant families were quickly released or deported upon arriving in the U.S., with some being held in dormitory-style centers for extended periods of time as they awaited immigration proceedings.

The Biden administration has publicly said it is reviewing how family detention facilities are used, though the Post noted that the administration last week told a federal judge that the policies had not yet changed.

. . . .

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

Read the full article at the link.

The three keys are: 1) screening for COVID, background, and credible fear of persecution; 2) matching asylum applicants with representation, which promotes nearly “perfect attendance,” at hearings; 3) radically and rapidly reforming the Immigration Court system so that the Immigration Judges are “practical experts” on asylum law and eliminating the huge number of “deadwood” cases clogging dockets so Immigration Judges can conduct asylum hearings for recent arrivals on a timely, consistent, predictable basis, with an emphasis on due process and getting the result correct at the initial merits hearing.

🇺🇸⚖️🗽Due Process Forever!

PWS

03-05-21

🇺🇸🗽⚖️Due Process Forever!

Related posts:

🇺🇸⚖️🗽Due Process Forever!

Related posts:

🇺🇸⚖️🗽Due Process Forever!

Related posts:

🇺🇸⚖️🗽Due Process Forever!

Related posts:

🇺🇸⚖️🗽Due Process Forever!

Related posts:

Related posts:

Misinterpreting “Realistic Possibility” — 8th Cir.

2) Wrong Interpretation Of Child Status Protection Act — 2d Cir.

3) Ignoring Previous Circuit Ruling On Related Case — 10th Cir.

4) Misconstruction Of Record — 1st. Cir.

🇺🇸⚖️🗽Due Process Forever!

Related posts:

🇺🇸⚖️🗽Due Process Forever!

Related posts:

🇺🇸⚖️🗽Due Process Forever! Asylum Laws Must Protect, Not Reject!🧑🏽‍⚖️🛡

Related posts:

A Better EOIR For A Better America!🇺🇸It’s not rocket science!🚀

🇺🇸⚖️🗽Due Process Forever!

Related posts:

🇺🇸🗽⚖️Due Process Forever!

Related posts:

Due Process Forever! ⚖️🗽

Related posts:

🇺🇸⚖️🗽Due Process Forever! Failed Courts Never!

Related posts:

Related posts:

🇺🇸⚖️🗽Due Process Forever!

Related posts: