"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
This from my good friend and Alexandria neighbor Professor Alberto Benitez over at GW Law:
The attached article from the Washington Post reads like the affidavits we prepare and file in support of our clients’ asylum applications. Please read to the end. All respect to Sra. Alvarado, Sr. Osorio, and all the survivors, may the victims rest in peace, and thanks to Ms. Schneider and Mr. Langille.
Kevin Sieff Latin America Correspondent Washington PostNick Miroff Reporter, Washington Post
From the above article by Kevin Sieff & Nick Miroff @ WashPost:
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Obviously, what’s described elsewhere in the article is really “top notch” law enforcement work from DHS. It also illustrates one of my “continuing themes” of “effective interdisciplinary cooperation in immigration cases.”
The irony is that DHS now spends too much of its law enforcement time trying to “chase down the victims of persecution” and deny them their rights to apply for asylum and their opportunity have their cases fairly evaluated and adjudicated.
What if, if rather than yielding to disgusting political grandstanding by GOP nativists and, sadly, some misguided Dems, who want to misuse Title 42 to end asylum law, the Administration stood up for the rights of refugees and asylum seekers for fair and orderly processing and determination of their claims for protection? What if refugees were encouraged to apply at legal ports of entry and at points outside the U.S. Wouldn’t that leave more time for “real” law enforcement at DHS — at the border and everywhere else?
Interestingly, during the Trump regime, some ICE Special Agents came to the same conclusion. They unsuccessfully “lobbied” then DHS Secretary Nielsen for separation from the “gonzo civil enforcement” that ICE then was carrying out — concentrating on “terrorizing” local ethnic communities. Not surprisingly, this made local enforcement in many areas reluctant to cooperate with ICE on real law enforcement priorities — like that described in this case.
As this article suggests, there has been a real “mixed message” in DHS and DOJ in handling of asylum claims from the Northern Triangle. One arm acknowledges and prosecutes massive acts of persecution that are actually war crimes. Another arm, aided by bad judging at EOIR and poor leadership at DOJ, disingenuously denies that such persecutions took place — sometimes mischaracterizing it as “random violence” — and that violence amounting to persecution on account of a “protected ground,” particularly violence directed at women and children, remains widespread in Latin America today.
Far right activist 5th Circuit Judges reacting to colleagues who followed law and ruled in favor of immigrants. PHOTO: Creative Commons.
The issue is whether an in absentia removal order can be based on a statutorily defective notice. The panel followed the Supreme’s decision in Niz-Chavez and rejected the BIA’s conflicting decision in Matter of Laparra. In other words, the panel required the Government to follow the statute, a process known as “complying with the law.” This sent some of this most conservative circuit’s most far-right judges over the edge. Here’s the en banc decision:
Credit Dan Kowalski over at LexisNexis for the “food fight” characterization.
The scofflaw GOP dissenters cited “deference” to the Executive, something they have pointedly refused to apply to Biden Administration precedents and policies favoring migrants.
The majority says: “[The BIA] flies in the face of the Supreme Court’s Pereira decision, which Laparra ignored.”
Incredibly, Garland is on the “wrong side” of this controversy, defending the legally incorrect misinterpretation of his “Trump holdover” BIA!
The statutory requirement at issue: That a “Notice to Appear” before the Immigration Court inform the individual of the time and place of the hearing. How difficult does that sound? Not very, unless you are bumbling bureaucrat at DHS and EOIR who chose, even after the Supremes’ initial decision, toviolate that decision and the statute in almost 100% of the cases instituted before the Immigration Courts!
Kudos to the 3 Trump appointees and one Bush II appointee who joined 3 Obama appointees and 2 Clinton appointees to uphold the rule of law and thwart their GOP scofflaw colleagues.
Interestingly, and perhaps mildly encouraging, the “Trump appointees” split 3-3 on this one.
Apparently nothing drives a wedge between conservative judges like the scary prospect of following the law when it gives immigrants a win!
Future ambitious academic study: How much of the current out of control backlog can be traced to the Government’s, and particularly the BIA’s, inept handling of straightforward notice requirements set forth in the statute?
There’s a reason why I keep referring to Garland’s out of control EOIR backlogs as “largely self-created,” albeit in fairness not exclusively by him. The Trump Administration, and to a lesser extent the Obama Administration, also “excelled” at “Aimless Docket Reshuffling” driven by “prioritizing” improper political goals over due process, fundamental fairness, quality, and practical scholarship in the Immigration Courts.
GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina Vera
“I really do not find enough words to let you know how grateful I am to all of you for your wise and timely guidance at all times and for the dedication and commitment that you assumed from the first moment towards our asylum case.”
Please join me in congratulating Immigration Clinic client T-G and her son F-P, from Venezuela, and their student-attorneys Karoline Núñez, Samuel Thomas, Alexandra Chen, and Jeremy Patton. The clients’ asylum application was filed April 28, 2017, their interview at the Asylum Office was on November 1, 2021, and the grant was issued March 21, 2022. T-G received the grant yesterday.
T-G is a survivor of domestic violence at the hands of her husband. He’d punch T-G, force her to have sexual relations, infected her with a STD, and he blamed her for their daughter’s neurological issues. Their daughter contracted Zika but was unable to receive the appropriate treatment because T-G was not a supporter of the Maduro government. Their daughter died at age 14.
Many congrats to the GW Immigration Clinic and all the GW All-Stars! 🤮⚖️
Let’s get behind the intentional dehumanization and the chronically misleading “numbers” being thrown around by nativists, some so-called “moderate” Dems, and the DHS. Put a “human face” on our nation’s dereliction of legal duty and abandonment of values at out Southern border.
The Faces Of Human Suffering @ Our Border PHOTO: The Guardian
This case is a compelling example of the types of refugees, many women and children and most people of color, who are stuck at our Southern Border as illegal suspension of asylum laws, based on racially- motivated bogus “public health” grounds grinds on. With some legal assistance and a fair and orderly system in place, many of those waiting could qualify for asylum if given a fair chance under the law.
Access to the asylum system, representation, and fair and impartial adjudication are essential to success. Right now, the Biden Administration is denying all three.
Make no mistake, this disingenuous action would kill asylum for good! These guys don’t even have the guts to admit that they are now carrying out Stephen Miller’s xenophobic war on immigrants and refugees of color.
Biden ran on an elimination of Title 42 and restoration of the legal asylum process. If 18 months after the election they lack a “plan,” there is no reason to believe that 60 more days would make a difference. It’s now or never!
60 days would bring us even closer to the mid-terms. If Dems are scared to follow the law now, that’s not going to improve as the midterms get even closer.
You can be sure that once the midterms are past, particularly if Dems get “blown out” as they fear, they will claim that the time “isn’t right” for any immigration “reform” (although, following the law is hardly a real “reform”) in advance of the 2024 election. If the GOP wins in ’24, the effective elimination of legal immigration — with or without legislation — will be finalized.
This has nothing to do with COVID at this point. It never really did. It was always about finding a pretext to close the border and keep it closed — at least to non-White refugees. But, since COVID constantly mutates, there will always be some sort of “COVID emergency” out there for the foreseeable future.
Asylum applicants have NOT been a significant source of COVID.They are far less of a threat to our health, safety, and security than GOP “magamorons” who eschew vaccination and basic public safety precautions. The Biden Administration should have a plan in place to insure that asylum seekers are tested and if necessary vaccinated before admission.
If we have no legal asylum system at the border, no functional refugee system abroad, and no hope for the future, the only way for individuals to seek protection will be by using smugglers to enter illegally and then hoping to “lose themselves” in a burgeoning “extralegal population” throughout out America. Once we abandon any pretext of a legal system for asylum seekers, the border will get further and further out of control. That will add to the GOP’s claims that more and more cruel, draconian, and punitive measures are necessary. But, they won’t stop desperate people from attempting entry until they either succeed or die in the process.
Contrary to the misguided blather of some Dems, there will never be a better time for Dems to support asylum seekers. They are concentrated in border areas, and eager to have their claims heard. Orderly processing and admitting as many as qualify, in a period of artificially reduced migration, would help the economy, raise tax revenues, and address supply chain issues. If not now, when?
Restoring asylum law is a legal requirement, not a “strategy,” “policy,” or “political choice.” If Dems turn their backs on the rule of law, what makes them different from the GOP?
If this divisive nonsense and backsliding on basic constitutional, racial justice, and social justice issues continues, progressive Dems are going to be faced with having to make a decision about the party’s future.
Progressive Dems make up a key part of the party’s core base and a disproportionate amount of the “boots on the ground, grass roots enthusiasm.” Republicans aren’t going to vote for Dems, no matter how xenophobic, hateful, and racist Dems are toward migrants. So-called “independents,” are neither going to fill the Dems coffers nor pound the pavement and work the phone lines to “get out the vote.”
So, arrogant “Title 42 Dems” are assuming that they can “spit on” immigrant justice, racial justice, economic justice, and social justice and that their “core support” among progressives won’t diminish because they will always be preferable to “Trump Republicans.”
All in all, it’s a “big middle finger” to progressives and their social justice agenda. That’s an agenda that Biden actually successfully ran on.
If progressives really believe in a pro immigrant, pro rule of law, racial justice agenda, then they need to stand up to the backsliders and let them know that there will be real consequences of yet another “sellout of immigrants’ rights.” We’ll see whether progressive Dems have more backbone and courage than their “Title 42/Miller Lite wing.”
But, the Post badly missed the larger point — NO refugee can afford to wait, be they White Ukrainians, Black Haitians, Cameroonians, and Congolese, or Latinos from the Northern Triangle, Venezuela, and Nicaragua! Our obligations to asylees are not supposed to be “race-based!”
The U.S. has had a legal refugee and asylum system for more than four decades. During that time, Congress has made several amendments of the law to allow DHS to rapidly process and summarily remove those appearing at the border who, after prompt expert screening by Asylum Officers, cannot establish a “credible fear” of persecution.
Restrictionists and shamefully some so-called moderate Democrats, and sometimes CBP, seem to have conveniently “forgotten” that the law was designed to deal fairly and promptly with so-called “mass migrations” long before the advent of the bogus Title 42 charade.
For some periods during the 40 years since the enactment of the Refugee Act of 1980, the U.S. has run functional refugee and asylum programs. Not “perfect” or perhaps even “optimal,” but “functional.”
They have done this by employing experts, cooperating with NGOs (domestic and international), and building resettlement and support systems spearheaded by NGOs, using Government grants, and promoting teamwork and coordination with states and localities.
It has only been when Administrations of both parties have mindlessly turned away from human rights experts and followed the misguided and tone-deaf gimmicks advocated by nativists and apostles of “enforcement only deterrence” that the legal systems for refugees and asylees, and efficient, humane border enforcement, have fallen into disorder.
While refugee and asylum laws could undoubtedly be improved, contrary to the media blather and nativist grandstanding, we have the basic legal framework to deal with the current refugee and asylum situations at our borders and beyond. The question is whether the Biden Administration and Dems have the will, vision, competence, and willingness to cooperate with human rights experts to fix the mess intentionally created by Trump and return human decency, competence, and the rule of law to our borders! If not now, when?
Katharina Obser Director of Migrants Rights and Justice Women’s Refugee Commission PHOTO: Women’s Refugee Commission website
Yesterday at 2:08 p.m. EDT
An unfinished area of the border wall between the United States and Mexico near Sasabe, Ariz., on Jan. 23. (Salwan Georges/The Washington Post)
With respect, it was breathtaking how much Marc A. Thiessen’s April 13 op-ed, “Biden to turn border crisis into a total catastrophe,” mistook Trump-era “public health” policy for border security, conflated families fleeing for their lives with fentanyl crossing the U.S. border and carelessly suggested that returning to normal asylum processing means Wild West open borders.
Seeking asylum is a right guaranteed under U.S. and international law. Ending Title 42 — a policy that weaponizes public health law to shut down the U.S. asylum system, which has been long decried by public health experts — simply means that people fleeing danger can once again exercise their right to apply for protection. It is policies such as Title 42, rather than the act of seeking asylum itself, that cause harm and catastrophe at our border. Title 42 has artificially inflated apprehension numbers because those expelled are left with no choice but to try again and again to seek safety.
Let’s remember that Poland, a country smaller than the state of New Mexico, just took in 2 million refugees in one month. The United States can certainly ensure a fair and orderly asylum system to welcome people with dignity. It’s the right — and legal — thing to do.
Katharina Obser, Washington
The writer is director of the Migrant Rights and Justice program at the Women’s Refugee Commission.
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Thiessen is chronically wrong, misinformed, and misleading. He’s a righty shill. Why the Post finds it necessary to insult its readers by publishing him is beyond me. But, he’s not the problem here! Merely a “toxic symptom.”
The problem is lack of resolve, planning, and commitment to human rights and the legal rights of refugees and asylum seekers within the Biden Administration and by some misguided Dem politicos. The Administration should be screening, organizing, and “pre-processing” asylum claims in Mexico RIGHT NOW, TODAY, so that there is an orderly, timely process in place BEFORE May 23. An “army” of Asylum Officers and NGO volunteers should be working together NOW to determine what easily grantable applications can be moved to the front of the line and actually granted on May 28 when new regulations go into effect.
From what I’ve read and heard, this isn’t happening. The Administration isn’t taking the necessary and available steps to make the system work at ports of entry and to use that success to establish the system’s credibility among asylum seekers and thereby discourage and “dis-incentivize” dangerous and problematic unauthorized entries between ports of entry.
The best way of “shutting down the Abbotts and the Thiessens of the world” is to get a functioning legal system back in place at the border using available legal tools and new regulations to insure that those entitled to asylum are promptly and favorably processed and admitted and that those not entitled to admission or protection are expeditiously returned.
It can be done! But, NOT the dilatory and confused way the Biden Administration appears to be going about it!
Also, a credible system that provides practical precedents and “real life examples” about who does and who does not qualify for asylum would help combat the misinformation about our legal system spread by smugglers, nativists like Thiessen, and disgracefully, some Dems.
That, in turn, should help individuals in countries in crisis to make better, more informed decisions about whether to seek asylum in the U.S. Also, the Biden Administration needs a robust, realistic refugee program for Latin America and the Caribbean. That would make it unnecessary for those who are refugees to come to the border to apply for asylum.
Katharina, you need to pick up the phone, call your contacts in the Biden Administration, and get them off their tails and laser-focused on solving the problems, before it is too late, rather than “wandering in the wilderness.” Sadly, Thiessen isn’t the only one talking nonsense and spreading misinformation!
Supposedly responsible officials in the Biden Administration, those who have disgracefully dragged their collective feet on lifting the Title 42 charade, restoring the rule of law to asylum, and long overdue due process reforms of the Immigration Courts, are “channeling Thiessen.” That’s as idiotic and counterproductive as it is immoral. It’s also “bad politics” — even if some Dems are too blind and scared to admit it!
Inexcusably, the experts who understand what’s happening at the border, the disastrous human effects, and who have the skills and visionary thinking essential to restore the rule of law at the border are largely “on the outside looking in.” But, Katharina, if you and other leaders of the NGO community can’t get the Biden Administration out of their “perma-funk” and focused on pulling out all the stops to fix the asylum system by May 23, their “planned failure” will become your never-ending problem. Worst of all, vulnerable, innocent humans, who want only to be treated fairly and in accordance with law, will continue to suffer unspeakable fates at the hands of our Government’s ineptitude!
Daniel M. Kowalski
15 Apr 2022
immigration
chavez
inflation
Linda Chavez
Linda Chavez: More Immigration, Less Inflation
Linda Chavez, Apr. 14, 2022
“… [A]dmitting asylees and giving them work authorizations, as well as allowing in more Ukrainian and Afghan refugees, could alleviate some of the country’s labor shortage. The Department of Labor reported last month that there were 11.3 million job openings in February, a number that has remained at historic highs for months. We should be opening our doors wider so that those seeking refuge in the United States can come here and help fill those jobs. …”
“Linda Chavez is a senior fellow at the National Immigration Forum. Chavez is the author of “Out of the Barrio: Toward a New Politics of Hispanic Assimilation“, which the Denver Post described as a book that “should explode the stereotypes about Hispanics that have clouded the minds of patronizing liberals and xenophobic conservatives alike”, as well as her memoir “An Unlikely Conservative: The Transformation of an Ex-Liberal”. In 2000, Chavez was honored by the Library of Congress as a “Living Legend” for her contributions to America’s cultural and historical legacy.
Chavez has held a number of appointed positions, among them Chairman, National Commission on Migrant Education (1988-1992); White House Director of Public Liaison (1985); Staff Director of the U.S. Commission on Civil Rights (1983-1985); and she was a member of the Administrative Conference of the United States (1984-1986). Chavez was the Republican nominee for U.S. Senator from Maryland in 1986. In 1992, she was elected by the United Nations’ Human Rights Commission to serve a four-year term as U.S. Expert to the U.N. Sub-commission on the Prevention of Discrimination and Protection of Minorities.
Chavez was also editor of the prize-winning quarterly journal American Educator (1977-1983), published by the American Federation of Teachers, where she also served as assistant to AFT president Al Shanker (1982-1983) and assistant director of legislation (1975-1977).
Chavez serves on the Board of Directors of ABM Industries, Inc. a Fortune 500 company, as well as on boards of several non-profit organizations.
Chavez was born in Albuquerque, NM, on June 17, 1947, received a Bachelor of Arts degree in English Literature from the University of Colorado in 1970 and a Master of Fine Arts in Creative Writing from George Mason University in 2012. She currently resides in Silver Spring, MD.”
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Come on, Biden Administration (and so-called “moderate Dems”), get with the program! Repeating “sanitized versions of Stephen Miller talking points” isn’t going to get you a single vote from Trump’s GOP, which is most of the party now. They have the xenophobic vote locked up.
But, in addition to energizing your real supporters and activists in the Dem base, making border policy work by smoothing the admission of qualified asylum seekers and refugees from all countries (not just “White guys”) might have some “crossover appeal” to at least a few conservatives who value economic vibrancy, are willing to acknowledge they their ancestors were once immigrants, and are somewhat turned off by the overt racism, chronic resentment, and insurrectionist, anti-American nonsense that has become part of the GOP “party line.”
And, showing that Government can actually solve problems without breaking the bank and improve the economy in the process might give some boost to standing among independents and centrists who thought that they were getting competence and leadership in return for voting out Trump’s incompetent Clown Show.
Or maybe Abbott, like many other Republican politicians, simply thinks his voters are stupid.
He might presume that angry voters will see backlogged traffic, empty store shelves and struggling businesses and blame President Biden, even though this latest contribution to supply-chain woes comes courtesy of Abbott’s own policies. If that sounds far-fetched, recall that Abbott and other Republicans have tried to blame Biden for mounting covid infections and deaths, even as these same politicians have deliberately sown distrust in vaccines and undermined or outright barred efforts to increase vaccination and other covid-prevention measures.
If Abbott’s border policy is motivated by the last of these possible explanations — if he’s assuming Texans are too dense to figure out causality here — let’s hope voters will be motivated to prove him wrong.
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Read Catherine’s full article at the link.
As Catherine points out, Texas voters have a golden opportunity to show their “clown prince” 🤡the door this fall. But, I wouldn’t count on it.
Meanwhile Abbott claims to have negotiated “security agreements” with several Mexican Governors thereby “allowing” him to “relax” his unneeded blockade. Exactly what this grandstanding means is opaque. Trucks entering the U.S. are ready checked for drugs and migrants by CBP at the border. Somehow, I doubt that Mexican authorities are going to do a better job than CBP.
Of course, the best way to deal with Abbott’s stunts is for the Biden Administration and NGOs to work together to encourage asylum seekers to present themselves in an orderly manner at legal ports of entry once the “Title 42 Blockade” is lifted. Indeed, as I’ve perviously suggested, there should be a system in place NOW to “prescreen” asylum applications in Mexico and to parole as many as possible of those whose claims pass credible fear and who can be resettled away from the border areas in advance of May 23. That would avoid long lines and confusion.
New regulations that would allow Asylum Officers to outright grant well-documented asylum cases go into effect on May 28. Surely, somebody out there in the “world of rational thinkers and doers” should be able to “leverage” this opportunity to cut through the BS and finalize grants of deserving cases without more bureaucratic red tape. Plan to show that that the new system can work. Start building the necessary credibility and confidence in orderly legal processing among asylum seekers now, rather than hoping that they all die or go away before May 23. They won’t.
That’s just an “expanded version” of what’s already happening for Ukrainian asylum seekers at the border. But, unfortunately, I haven’t seen much hard evidence that either the Administration or the NGOs are planning for “achievable success” rather than “finger pointing failure” on May 23. The real victims here are, as usual, the migrants whose humanity and rights are routinely ignored in the politicization of the border.
Let’s look at what has happened with another Abbott stunt mentioned by Catherine:“Bussing” asylum seekers from the border to downtown DC and dropping them near the headquarters of Fox News, NBC News and C-SPAN. Obviously, Abbott anticipated a “Fox photo op” of bewildered folks wandering the streets, causing traffic jams, and sparking anti-immigrant protests and overreaction by local Dem officials.
But, thanks to local NGOs, the opposite has happened. Volunteers have met the arriving busses, helping those bound for other areas to make the right transportation connections and directing those bound for the DMV area to the appropriate local organizations who can assist them in orderly resettlement.
Most of the migrants who volunteered for the busses expressed gratitude for the free transport. Few appeared to know that they were intended to be part of “Nativist Political Theater.” Both CBP and local NGOs at the Texas border worked to facilitate those seeking transportation to use the busses.
Evidently inadvertently, in this case Abbott’s publicity stunt appears to have “morphed” into a good example of how cooperation among Federal and state authorities, NGOs in different areas, and migrants themselves can work to facilitate orderly processing of migrants once they are in the U.S.
Who knows if this initial success will be temporary or long term. If the latter, it will be interesting to see if Abbott will continue to fund efforts to make the immigration system work rather than to showcase itsanticipated failures. But, in any event, this should be a practical example for the Biden Administration of how public-private partnerships, teamwork, and cooperation can work even across party and ideological lines.
Unfortunately, to date, the Biden Administration’s wobbly approach to immigration and human rights has failed to capitalize on almost every opportunity to show the benefits of an orderly, legally compliant, and humane immigration policy.
Will they finally get this one right? Or, as Catherine has suggested before, will this just be another in a too long line of Biden’s missed opportunities to show that the rule of law and legal immigration work for America?
🇺🇸Due Process Forever!
PWS
04-15-22
UPDATE:
RAMPELL “DUNKS” ON ABBOTT AS TEX GOV FORCED TO RESCIND IDIOTIC STUNT ORDER!
The American Trucking Assn. called the inspections “wholly flawed, redundant and adding considerable weight on an already strained supply chain.”
This stunt, not surprisingly, turned up neither a single smuggled individual nor any drugs. They did turn up some safety violations, actually the only thing Texas officials were legally empowered to inspect for. But, safety problems have been around forever, and Abbott hasn’t given them a second thought as he misallocates state resources on a grotesque scale. See, the bogus “Operation Lone Star.”
The best way to deter human smugglers is to reopen ports of entry to asylum seekers and grant the many worthy applications out there, thereby ending years of manipulating asylum law to deny protection to legally qualified refugees.
While there of course will always be pressure on the border, the many individuals who seek only a fair chance to present their legal claims for asylum through our legal system will no longer be forced to use smugglers to gain “black market” refuge just because the Government has shirked their legal responsibilities!
That ought to make the border safer and CBP’s job at least somewhat easier.
It all depends on whether the border asylum system is credible. So far, no Administration has succeeded in pulling that off.
All have employed various degrees of bias and inhumane detention to “hold down” the number of asylum grants at the border. A legitimate legal asylum system at the border is possible, particularly if accompanied by a robust refugee program beyond the border. But, possible doesn’t mean probable!
Opinion: Democrats are missing the bigger immigration issue
By Catherine Rampell
Democrats are terrified that a coming border surge might tank their midterm chances.
But they have largely ignored a much more serious immigration-related political risk. The problem in the months ahead isn’t that the United States will allow in too many immigrants; it’s that we’ll admit too few, particularly the kinds of workers who can fill critical labor-market shortages.
The Biden administration recently announced it would soon end Title 42, a Trump-era border-control policy. Citing the public health emergency when it invoked the policy in March 2020, the Trump team used the pandemic as a pretext to expel all arriving migrants without first allowing them to apply for asylum, as they have a legal right to do. Public healthexpertsandimmigrationadvocates — and many elected Democrats — have long condemned the policy, which has been used to carry out more than 1.7 million migrant expulsions.
President Biden’s own appointees have called the policy illegal and inhumane, with multiple high-level officials blasting it when they resigned. But Biden delayed reversing Title 42, fearing bad optics and attacks from Fox News. (Which arguably was going to attack him as an “open borders” president regardless.)
As expected, right-wingers are now catastrophizing about the looming “Armageddon” that will follow Title 42′s unwinding.
As a result, some worried Democrats are demanding that Biden keep this (likely illegal) policy in place. They have been so fixated on bad-faith right-wing attacks that they have missed the bigger, and much more serious, immigration-related liability: the millions of immigrants whose absence from the U.S. workforce is putting upward pressure on inflation.
Which Democrats are being blamed for, and which voters appear to care much more about.
The United States is experiencing inflationary levels not seen in four decades. Americans are unhappy, and they are more than five times as likely to cite “inflation,” “cost of living” or the economy in general than immigration as the nation’s biggest problem. These economic concerns are, however, rooted at least partly in immigration policy.
Worker shortages are pervasive, with vacancies hovering around record highs. The resulting disruptions to supply chains and normal business operations have raised costs for companies and consumers. Some of these “missing” workers retired; some dropped out of the labor force because of care issues or illness. But a huge chunk were foreign-born workers who either never arrived in the United States in recent years or who were already here but have been forced out of their jobs because of government incompetence.
There are about 1.8 million fewer working-age immigrants in the United States today than would be the case if pre-2020 immigration trends had continued unchanged, economic researchers Giovanni Peri and Reem Zaiour estimate. Unsurprisingly, they also find that industries that had a higher percentage of foreign workers in 2019 — such as hospitality and food services — tend to have higher rates of unfilled jobs now.
These immigrants, legal and otherwise, are “missing” because of a combination of Trump policies, covid-19 (which the Trump administration cited to justify imposing even more immigration restrictions) and Biden’s foot-dragging.
Although Biden pledged more humane and efficient immigration policies when he ran for president, he has been slow to reverse many of President Donald Trump’s onerous paperwork requirements and other policies designed to reduce legal immigration. Biden’s sluggishness owes partly to the magnitude of the challenge of rebuilding the U.S. immigration infrastructure — and partly to that deep Democratic fear of how Fox News et al. might portray any efforts to help immigrants.
As a result, last year, the United States experienced the lowest levels of new international migration in decades, census data shows.
. . . .
A border surge is infinitely more telegenic and attack-ad-friendly than backlogged paperwork. But the missing immigrant workforce is what more directly affects voters’ pocketbooks — and, by extension, Democrats’ political fortunes.
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Read Catherine’s complete article at the link!
There is no need for a self-created “border surge” on May 23! We have a potentially quite efficient asylum screening and adjudication process in our existing law. If it were properly staffed and run, with competent legal and judicialoversight, asylum seekers would use it — even if “success” is far from guaranteed.
Experience has shown that asylum seekers in the U.S. who are represented, and therefore understand the system and their obligations, faithfully appear for hearings nearly 100% of the time, even when they appear likely to lose. Just because we as a nation have lost faith in our ability to operate under the the rule of law doesn’t mean that asylum seekers have! Obviously folks who have “hung around” in Mexico, in life-threatening conditions, for months or years, believing in a false promise of future fair and humane treatment by the U.S. aren’t as easily persuaded that our legal system is a sham as are our own politicos, bureaucrats, and pundits.
Sure, folks without asylum claims and those who don’t trust the system will continue to attempt unauthorized entry — particularly if the legal system lacks credibility, thus allowing smugglers to convince migrants to evade it.
But, with a robust asylum system functioning at ports of entry, CBP won’t be diverted by squandering resources “apprehending” (a serious misnomer) individuals who want nothing more than a fair and timely chance to present their asylum claims. CBP can concentrate their resources on those who truly intend to evade the legal system.
Even without the bogus Title 42, the law provides more than adequate tools for dealing with unauthorized entry. Those without documents are subject to “summary removal” by CBP Agents. Those subject to summary removal who claim asylum can be promptly screened for “credible fear” by trained USCIS Asylum Officers. Those who “flunk” credible fear are summarily removed under the existing order. Those who “pass” can be funneled into the legal asylum system and processed accordingly.
If you are a believer in “deterrence theory” for migrants who don’t have credible asylum claims, then the “expedited summary removal process” provides just that. No need to illegally invoke Title 42!
If the Obama, Trump, and now Biden Administrations had spent time and resources training Asylum Officers and reforming the Immigration Courts, instead of screwing around with futile (sometimes illegal) “enforcement only” gimmicks, idiotic walls, inhumane, expensive detention, inane messaging, and deterrence, there wouldn’t be largely manufactured “border emergencies.” Just a variety of fairly predictable “humanitarian situations” and opportunities to show how the rule of law works in a functioning democracy.
For example, the much feared and ballyhooed “caravan” that had Trump scared out of his (already limited) wits moved in “slow motion” to the border. A competent Administration could have processed them fairly, humanely, and timely upon arrival or shortly thereafter. Indeed, a competent Administration probably would have worked with the Mexican authorities and the UNHCR to have processed members ofthose “caravans” for refugee status, in an orderly manner, at a point in Mexico well-removed from our border!
If, after truly fair, humane, and timely processing at ports of entry few qualified (I deem this unlikely under a truly fair and competent system, but perhaps possible, who really knows, since we have been “chicken” to fairly adjudicate asylum claims from Latin American and the Caribbean for many years), then there’s your “legal deterrent” (for those who believe in deterrents) to those who might seek to come in the future.
“Caravans” don’t cross the border irregularly unless legal ports or entry are closed or de facto unvailable to them. Even then, most asylum seekers in caravans would prefer to wait for legal processing if it were available in a predictable, orderly, humane, fair, and timely manner. The Trump kakistocracy’s decision NOT to follow asylum laws and procedures at ports of entry actually caused unnecessary chaos, created danger, and provoked and encouraged unauthorized entries. The Biden Administration has, unfathomably, followed in Trump’s footsteps!
The “missing piece” for decades, across Administrations of both parties, has been a robust, realistic, well-staffed “outside the US” refugee processing system for Latin America and the Caribbean. If we REALLY don’t want folks “trying their luck” on asylum at the border, then give them honest and prompt answers to their refugee claims in or nearer to the countries in conflict they are fleeing.
The current law is by no means perfect. But, it’s a whole lot better than the politicos and bureaucrats who, for most of the past four decades, have failed to take straightforward, achievable steps to “make it work.” Refugee admissions overseas, and asylum admissions in the U.S. and at our borders, are a key element of our legal immigration system. It’s time to stop pretending otherwise!
And, as Catherine cogently points out, rapidly approving work authorizations and all types of applications for legal immigration under existing law also should have been “low hanging fruit” for the Biden Administration. A group of summer college students could have been trained in short order to wipe out the backlog of Employment Authorization Documents (“EADs”) during the summer of 2021.
Even now, with just a little initiative, creativity, and energy, USCIS could hire and train summer employees to handle many routine and repetitive “adjudications.” All “adjudications” are NOT equal! EAD backlogs, intentionally created by the Trump kakistocracy, are totally unnecessary and inexcusable under Biden.
How many retired Asylum Officers, USCIS Adjudicators with asylum experience, retired Immigration Judges, retired BIA staff attorneys, and retired Congressional immigration staffers has USCIS “rehired” during the past year to prepare for the reopening of the border?If they haven’t, why not? It’s not too late to get more qualified individuals on board temporarily and give them to tools they need to fairly and timely process credible fear cases.
How many agreements has USCIS entered with NGOs to prescreen, organize into orderly lists, and, where necessary, represent individuals now waiting at or near the Southern Border. If not, why not get some of those agreements into effect on an “expedited” basis by next Monday?
In Government, everything seems to be a candidate for bogus “expedited treatment” EXCEPT common sense, readily available measures that actually solve problems! Why is that? What’s an Administration that got elected by claiming “Government can work” going to do to prove that before May 23! Stop “making excuses for failure” and start solving problems!
It’s not rocket science! Dems must stop “hand wringing” about what they didn’t do in the last year and start making the system work under current conditions. That’s what “good government” is supposed to do!
Poland, a country of fewer than 40 million about the size of a large U.S. state, was able to handle 4-5 million Ukrainian refugees in a matter of weeks. Meanwhile the US is “paralyzed” by the idea that 60,000 might apply with more than a month of lead time to prepare, and an established, if now suspended, legal framework to use. Not to mention that Biden had more than a year’s “advance notice” that the asylum system would need rebuilding and rejuvenation at the Souther border. Gimmie a break! The Biden Administration was put in office largely to “make Government work” — not to mindlessly repeat GOP White Nationalist “woe is me” talking points!
On a smaller scale, religious organizations and voluntary agencies mobilized and organized almost overnight to assist the U.S. Government in processing Ukrainian refugees at the border. Why couldn’t those efforts be expanded and replicated for the largely non-White refugee hopefuls currently waiting? Why create an “emergency” that needn’t be? Why not put more time, effort, and creativity into ACHIEVING success, rather than thinking of excuses for anticipated failure or shifting blame to the “victims?”
Honestly, as the late, great political pundit
Casey Stengel would have said,“can’t anyone here play this game?”
“Time and time again, the Biden Administration’s inept and unprincipled approach to immigration and human rights leaves this guy scratching his head.” PHOTO: Rudi Reit Creative Commons
Also, Catherine Rampell understands the complex issues of immigration better than any “top level” official in the Biden Administration that I’m aware of. If they aren’t going to hire her, they should at least heed her advice. It’s free, accessible, clearly and succinctly written, and almost always “spot on!”
What DHS SHOULD have said about reinstitution of our legal asylum system at the border:
“The Department of Homeland Security works to secure and manage our borders while building, maintaining, and improving a fair and orderly immigration system. That includes a fair and timely system for granting asylum or other forms of refuge from persecution or torture to qualified applicants. Insuring legal protection for refugees is a critical part of DHS’s mission of administering and enforcing the laws.
Violence, political upheaval, war, genocide, religious intolerance, racism, food insecurity, poverty, femicide, child abuse, environmental disasters, rampant corruption, and prospects of starvation in several areas around the world are driving unprecedented levels of migration to our Southwest Border. The devastating impact of the COVID-19 pandemic, which involved the temporary suspension of our system for legal immigration, including admission of asylees and other refugees, has only exacerbated these challenges. A number of sources, including human smuggling organizations, peddle misinformation about entering the United States or coming to our borders.
With the restoration of our legal immigration system on the horizon, only two groups of foreign nationals will generally qualify for admission at our borders: first, those in possession of visas or equivalent documents usually issued by U.S. consular officers abroad; and second, those who can establish that they qualify for asylum or other forms of legal protection from return to persecution and/or torture.
Under our laws, asylum can only be granted to those reasonably fearing harm because of their race, religion, nationality, political opinion, or membership in a particular social group. Other foreign nationals facing harm not amounting to “torture” in their home countries will not be eligible for admission under our laws. Those who apply or are apprehended at or near the border and cannot show a “credible fear” of harm because of one of the foregoing grounds will be summarily removed from our country.
In short, if you do not have a valid visa or a bona fide claim for asylum or other legal protection, you should not make the journey to the U.S. border. You will be apprehended and summarily returned to your home country in accordance with our laws.
DHS is implementing a comprehensive strategy to address a potential increase in the number of border encounters. That strategy includes:
Acquiring and deploying many more trained Asylum Officers to legal ports of entry to promptly decide “credible fear” cases for asylum seekers;
Delivering a more efficient, fair, and timely asylum process by allowing Asylum Officers to grant credible, well-documented claims at the border;
Working with NGOs, legal aid groups, and local governments to provide legal counseling and representation to those seeking asylum;
Working with NGOs, religious organizations, and other social services entities in the U.S. to assist in orderly resettlement of those granted asylum or whose cases cannot be timely processed at the border;
Processing and removing those who do not have valid claims; and
Working with the UNHCR, NGOs, and other countries globally to manage migration and address root causes.
With the restoration of a fair and timely asylum and protection processing system at our legal ports of entry, all asylum applicants should apply in an orderly fashion only at those ports. That will be the safest, most efficient way of applying, offer the greatest opportunities for legal representation, and increase the chances of timely, legal admission into the United States for those who are qualified.
Those who attempt to avoid legal processing at ports of entry by unauthorized entry may well find their lives endangered by unscrupulous smugglers. Additionally, those who attempt to avoid the legal process available at ports of entry might subject themselves to detention, additional grounds for removal, bars on future reentry, and criminal prosecution. With the return of full legal immigration and improved asylum processing to ports of entry, DHS will be able to devote more enforcement resources to locating and apprehending those attempting irregular entry into the U.S. DHS will also target human smuggling operations.
There is broad agreement that our immigration system is fundamentally broken. The Biden-Harris Administration continues to call on Congress to pass legislation that holistically addresses the root causes of migration, fixes the immigration system, and strengthens legal pathways.”
FACT SHEET: DHS Preparations for a Potential Increase in Migration
Release Date: March 30, 2022
The Department of Homeland Security (DHS) works to secure and manage our borders while building a fair and orderly immigration system. The CDC has announced that, on May 23, 2022, its Title 42 public health Order will be terminated. As a result, beginning on May 23, 2022, DHS will no longer process families and single adults for expulsion pursuant to Title 42. Instead, DHS will process them for removal under Title 8. Until May 23, 2022, the CDC’s Title 42 Order remains in place, and DHS will continue to process families and single adults pursuant to the Order.
Under Title 8, those who attempt to enter the United States without authorization, and who are unable to establish a legal basis to remain in the United States (such as a valid asylum claim), are subject to additional long-term consequences beyond removal from the United States, including bars to future immigration benefits.
DHS is implementing a comprehensive strategy to address a potential increase in the number of border encounters.
The strategy includes: 1) Acquiring and deploying resources to address increased volumes; 2) Delivering a more efficient and fair immigration process; 3) Processing and removing those who do not have valid claims; and 4) Working with other countries in the Western Hemisphere to manage migration and address root causes.
Violence, food insecurity, poverty, and lack of economic opportunity in several countries in the Western Hemisphere are driving unprecedented levels of migration to our Southwest Border. The devastating economic impact of the COVID-19 pandemic on the region has only exacerbated these challenges. Human smuggling organizations peddle misinformation that the border is open. DHS is implementing a comprehensive strategy to address a potential increase in the number of border encounters.
There is broad agreement that our immigration system is fundamentally broken. The Biden-Harris Administration continues to call on Congress to pass legislation that holistically addresses the root causes of migration, fixes the immigration system, and strengthens legal pathways.
1. Acquiring and deploying resources to address increased volumes.
Developed an integrated and scalable plan to activate and mobilize resources.
DHS initiated a Southwest Border contingency planning effort last fall. Last month, the Secretary designated a Senior Coordinating Official and established the Southwest Border Coordination Center (SBCC) to coordinate planning, operations, engagement, and interagency support.
Ready to surge personnel and resources to the Southwest Border.
DHS has moved officers, agents, and DHS Volunteer Force personnel to rapidly decompress points along the border and more efficiently process migrants.
Increasing CBP temporary holding capacity to process high volumes of individuals in a humane manner.
CBP has mobilized resources to rapidly stand up, expand, and/or reinforce Central Processing Centers in order to provide more efficient end-to-end processing for migrants encountered at the Southwest Border. Additionally, more ICE staff will be deployed to the border to facilitate processing.
Utilized appropriated resources to improve border processing
In its FY22 appropriations bill, Congress provided an additional $1.45 billion for a potential Southwest Border surge, including $1.06 billion for CBP soft-sided facilities, medical care, transportation, and personnel costs; $239.7 million for ICE for processing capacity, transportation, and personnel costs; and $150 million for FEMA’s Emergency Food and Shelter Program at the Southwest Border. Earlier this week, President Biden submitted to Congress its FY23 Budget, which would fund the hiring of 300 new Border Patrol Agents and 300 new Border Patrol Processing Coordinators.
While the 2022 appropriation exceeded the request and represents a historic funding level for DHS, the appropriation would not be sufficient to fund the potential resource requirements associated with the current increase in migrant flows. DHS will fund operational requirements by prudently executing its appropriations; reprioritizing and reallocating existing funding through reprogrammings and transfers; requesting support from other Federal agencies; and finally, by engaging with Congress on any potential need for supplemental appropriations, as necessary.
Implementing COVID mitigation measures
The health and safety of the DHS workforce, communities, and migrants themselves is a top priority. CBP provides PPE to migrants who cannot be expelled under the CDC’s Title 42 order or are awaiting processing from the moment they are taken into custody, and migrants are required to keep masks on at all times. CBP also works with appropriate agencies that facilitate testing, isolation, and quarantine of migrants.
DHS has also been providing the COVID-19 vaccines to noncitizens in ICE custody since summer 2021. Beginning March 28, 2022, DHS expanded those efforts to cover migrants in CBP custody, so as to further safeguard public health and ensure the safety of border communities, the workforce, and migrants. These efforts will be ramped up over the next two months, to cover the majority of noncitizens taken into CBP custody.
In addition, DHS is putting in place decompression plans to protect against the kind of overcrowding that facilitates the spread of COVID-19.
2. Delivering a more efficient and fair immigration process.
Issued rule to expedite asylum claims.
On March 24, 2022, DHS and the Department of Justice issued a rule to improve and expedite processing of asylum claims made by recently arriving noncitizens, which provides for the expeditious granting of relief to those who have valid claims for asylum and prompt removal of those whose claims are denied. Once implemented at scale in the coming months, the rule will transform how cases are processed at the border. In President Biden’s Fiscal Year 2023 Budget to Congress, he makes good on the promise of this rule by investing $375 million to hire the personnel needed to quickly process asylum claims.
A Dedicated Docket process for more efficient immigration hearings.
In partnership with the Department of Justice, DHS established a new, more efficient process called the Dedicated Docket to conduct speedier and fair immigration proceedings for families who arrive between ports of entry at the Southwest Border. As a result, the length of time it takes for many of these cases to reach a final disposition has decreased from years to months.
Increased efforts to dismantle transnational criminal organizations that exploit vulnerable migrants
U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement’s Homeland Security Investigations, U.S. Citizenship and Immigration Services, the U.S. Department of State, and the Federal Bureau of Investigation and Drug Enforcement Administration of the U.S. Department of Justice launched a counter-network targeting operation focused on transnational criminal organizations affiliated with the smuggling of migrants.
This Operation targets criminal networks that profit from a broad range of illicit activities, such as human smuggling, by using targeted enforcement actions against them, including by denying access to travel and freezing bank accounts.
3. Processing and removing those who do not have valid claims.
Continuing to process migrants in accordance with the laws of the United States, including expeditiously removing those who do not have valid claims to remain in the United States.
Individuals who cross the border without legal authorization will be placed into removal proceedings and, if unable to establish a legal basis to remain in the United States, expeditiously removed. Those who attempt to enter the United States without authorization, and without a valid asylum claim, are subject to additional long-term consequences beyond removal from the United States, including bars to future immigration benefits.
Bringing targeted prosecutions of smugglers, repeat offenders, and those who seek to evade law enforcement.
In close coordination with the Department of Justice, DHS will refer border-related criminal activity to DOJ for prosecution where warranted, including that of smugglers, repeat offenders, and migrants who seek to evade U.S. Customs and Border Protection. U.S. Customs and Border Protection also continues to enforce its Repeat Offender initiative to target recidivism. Any single adult apprehended along the Southwest Border a second time, after having previously been apprehended and removed under Title 8, is referred for criminal prosecution. This initiative has improved DHS’s ability to escalate consequences and conserve processing resources.
4. Working with other countries in the Western Hemisphere to manage migration and address root causes.
Working closely with source and transit countries in the region to deter migration.
The Administration is working with source and transit countries in the region to facilitate the quick return of individuals who previously resided in those countries, as well as stem migration at its source. DHS, in coordination with the Department of State, has regular discussions with partner countries in the Hemisphere on migration related matters and continues to engage with foreign governments to improve cooperation with countries that systematically refuse or delay the repatriation of their nationals.
Signed Migration Arrangement with Costa Rica to address irregular migration.
On March 15, 2022, Secretary Mayorkas traveled to Costa Rica where he joined President Alvarado in announcing a bilateral Migration Arrangement, outlining our shared commitment to both manage migrant flows as well as to promote economic growth in the region. DHS and the Department of State are currently engaged with other countries in the region to advance similar objectives.
Continuing close partnership with the Government of Mexico on migration-related issues.
The Biden-Harris Administration continues to maintain a close partnership between with the Government of Mexico to stem irregular migration, creating viable legal pathways, fostering legitimate trade and travel, and combating the shared dangers of transnational crime. In March, Secretary Mayorkas made his fourth official visit to Mexico City where he and President Andrés Manuel López Obrador committed to the promotion of lawful trade and travel and a regional approach to migration management.
As a sometimes law professor, “What if” is a question I can’t avoid!
The DHS “Fact Sheet” reads like an unprepared agency, planning to be overwhelmed by forces allegedly beyond their control, and looking for ways to shift the anticipated political fallout by blaming others: Congress, smugglers, foreign countries, COVID-19, the Trump Administration, and, in a particularly “low blow” the victims themselves — asylum seekers and other desperate migrants.
Let’s keep in mind that legitimate “refugees” have been largely “shut out” of our legal system for the past several years. Thus, many were left with little or no choice but to seek “do it yourself” refugee within our large “extralegal immigration subsystem.” Often they resort to smugglers and put themselves at increased risk after finding our borders closed to those orderly seeking protection under our laws. We have watched it unfold, and largely ignored the unsavory consequences of our own actions.
I’m certainly not the only one to see “planned disaster” for the Biden Administration on the horizon. Check out today’s WashPost lead editorial:
However, what if, with 51 days to go, advocates and NGOs could “flip the script” on “programmed failure” and make the asylum system at our border function fairly and efficiently, in spite of itself?
What if the “anticipated narrative” of an out of control border never came to pass? What if the U.S. could actually make the rule of law a reality at the border? What if reopening legal ports of entry for asylum seekers, thereby eliminating the pressure for “do it yourself refuge,” actually helped the Border Patrol concentrate on smugglers and those without any legal claim to remain here?
That might involve getting an “army” of volunteers to the border to:
Convince asylum seekers to trust the new system and apply in an orderly fashion only at ports of entry;
Work with the DHS to insure that any processing lists are established and controlled by legitimate authorities;
Leverage the potential for more rapid asylum grants by Asylum Officers by representing applicants and assisting them in documenting and presenting their claims in formats that will facilitate more AO grants;
Represent those improperly denied by the AO before the Immigration Courts and use effective, “practical scholarship,” expert advocacy, and compelling documentation to force due process and fundamental fairness into an Immigration Court system and a 5th Circuit Court of Appeals historically biased against asylum seekers at our borders;
Counsel those prima facie unqualified for asylum and those rejected after applying on possible alternatives outside the U.S.;
Work with authorities, local communities, and NGOs to provide viable resettlement opportunities for those granted asylum and safe, secure, and non-intrusive temporary living conditionson both sides of the border for those awaiting legal processing;
Advocate to the DHS for establishment of robust, realistic, generous, credible refugee programs for Latin America, Haiti, and elsewhere to reduce pressure on the border asylum system. A “viable alternative” to appearing at the border for refugees is what’s glaringly missing from both our past and current approaches.
Can change really come from below and outside the struggling DHS and EOIR systems? Frankly, I don’t know. But, we’re going to find out in the next several months! We can’t change history, but, perhaps, we can rewrite the future!
Waves of migration through Mexico and Central America, and people who go missing, will increase in 2022 due to high levels of violence in the region, the International Committee of the Red Cross (ICRC) said.
Battle-scarred ghost town bears mute witness to Mexico’s drug wars
“In many countries, violence is wreaking more and more havoc, and that’s why there are more and more migrants,” ICRC representative Jordi Raich told Reuters in an interview Wednesday. “And it’s not a situation that is going to improve or slow down, not even in the years to come.“
Immigration authorities in Mexico detained 307,679 migrants in 2021, a 68% increase compared with 182,940 detentions in 2019, according to government data.
Shelters in Mexico were completely overwhelmed last year, filled with frustrated migrants unable to continue their journey to the United States, Raich said.
Many migrants get “stuck” along Mexico’s southern or northern borders, Raich said, where they face “enormous economic constraints” and are able to find only basic services.
The administration of Joe Biden has faced record numbers of migrants arriving at the southern border and has implored Mexico and Central American countries to do more to stem the wave.
Disappearances in the region have not slowed either, the Red Cross said in a report released Thursday. Mexico recently surpassed 100,000 people reported missing in the country.
In El Salvador, 488 missing person cases remain unsolved, and in Guatemala, the number of missing women rose to six a day, the Red Cross report said.
Raich said it will be difficult to respond to the root causes of migration immediately. A joint effort among countries like El Salvador, Guatemala and Honduras is necessary, he added.
“Migration is not going to stop,” Raich said. “If you try to prevent it or strictly regulate it, people start to pile up at the borders, which is happening in Mexico and other countries.”
Meanwhile, the Biden administration on Thursday rolled out a sweeping new regulation that aims to speed up asylum processing and deportations at the US-Mexico border, amid a record number of migrants seeking to enter the US.
The announcement of the new rule came as US officials are debating whether to end a separate Covid-era policy that has blocked most asylum claims at the border. The asylum overhaul could provide a faster way to process border crossers if the Covid order is ended.
. . . .
*****************
Read the full article at the link.
Cruelty, walls, detention, family separation, border militarization, expedited hearings — they aren’t going to stop human migration.We will be able to increase border deaths, expand the scope of “black market migration,” increase our “underground population,” and enrich human smugglers. Good policy?
Meanwhile, it’s obvious that the “disingenuous internal debate” on Title 42 has nothing whatsoever to do with public health and everything to do with whether continued illegal and immoral suspension of asylum protections at the border will prove politically advantageous to the Biden Administration. It won’t! It might, however, cost Dems support among progressives.
There is, of course, no known medical evidence that “single males” present a greater COVID threat than families! Indeed, there is no known medical evidence to suggest that any potential asylum applicant is a threat to the health and safety of the US.
The whole thing is a deadly farce! Why aren’t Hill Dems calling for oversight of Garland’s sitting by and watching while the law and ethics are pulverized around him? Or worse yet, what about his Department’s defense of abrogation of our laws? Believe it or not, we actually have asylum and protection laws on the books, duly enacted by Congress, although you’d never know it from Garland’s feckless performance!
Meanwhile, WashPost and other so-called “mainstream media” continue to hype stories about increased border pressure. So, continuing to violate asylum law is a viable alternative “strategy?” Give me a break! How is violating the law going to stop folks from fleeing deadly conditions in their home countries? It won’t, as the ICRC points out above!
What it will do, as also pointed out above, is kill more asylum seekers, subject them to rape, torture and other harm, enrich smugglers, and increase the extralegal population in the U.S.!
Blaine Bookey Legal Director Center for Gender & Refugee Studies @ Hastings Law Photo: CGRS website
It also will increase those waiting in vain at the Southern Border for the reopening of a legal asylum system that has abandoned them! In the words of one expert:
“The conditions are squalid,” said Blaine Bookey, the legal director of the Center for Gender and Refugee Studies at University of California, Hastings College of the Law, who led a team interviewing dozens of families waiting in Tijuana for the federal government to lift Title 42. “There is real lack of access to sanitation, medical care, adequate food, all of the real basic fundamental necessities.”
. . . .
“There have been some exceptions made for Ukrainians, which we’re happy to see, but the policy should be ended for everyone,” Bookey said. “There was never a public health justification, and there certainly isn’t now.” (WashPost, supra).
Meanwhile, back at the ranch, Sen. John Cornyn (R-TX) babbles nativist nonsense:
Sen. John Cornyn (R-Tex.) said at a committee hearing last week that the influx has “completely derailed” efforts to discuss improving legal immigration to the United States, which he said states such as Texas need to staff hospitals and fill jobs. Border states such as Texas and Arizona are bracing for higher numbers of unauthorized immigrants in coming weeks, he said.
“Rather than deter would-be migrants with weak asylum claims from taking the dangerous journey to the southwest border, the administration has rolled out the welcome mat and created new incentives to illegally immigrate to the United States,” he said at the March 15 hearing before the Senate Judiciary subcommittee on immigration, citizenship and border safety.
To my knowledge, neither Cornyn nor any of his other GOP nativist buddies have ever adjudicated an asylum application. Nor have they represented asylum seekers before the Asylum Office or in our broken Immigration Courts. So, how would that have any idea whether certain asylum claims are “weak” or not? They wouldn‘t!
Moreover, we haven’t had a functioning asylum system at our Southern Border for years. So, how would anyone know how many of the claims are “weak?” They wouldn’t?
Remarkably, apparently unknown to Cornyn and his scofflaw buddies, we actually have laws to deal with his concerns. When the legal system is “open for business” — which it isn’t now — those claiming asylum at the border are subject to “summary exclusion” by DHS officers. Their claims are then expeditiously reviewed by Asylum Officers for a “credible fear” of asylum. Those who don’t establish credible fear, subject only to cursory review by an Immigration Judge, can be immediately removed by DHS.
Historically, when the system was at least nominally functional, those “passing” credible fear have been turned over to the now dysfunctional Immigration Courts. Under Trump, these “parodies of courts” were “weaponized” into “asylum killing grounds.”
Sessions and Barr packed their non-independent “captive courts” with “judges” perceived to be “enforcement oriented” and “anti-asylum” — willing to skew the law and facts as necessary to deny and deport. This mess is “led” by an appellate body, the BIA, which contains some of the most notorious members of the “Asylum Deniers’ Club” — folks who got their appellate jobs under Barr specifically because as Immigraton Judges they denied almost every asylum case that came before them! In other words, even when there was some semblance of a legal asylum system, it was redesigned under Trump to be systemically unfair to asylum seekers, particularly women and applicants of color. For sure, racism and misogyny played into this unseemly scenario.
Remarkably, Garland has chosen to maintain this dysfunctional, biased, and broken system largely in the form it existed and with almost all of the same unqualified or questionably qualified “judges” he inherited from Session and Barr!
Our broken asylum system can’t and won’t be fixed without dealing head-on with the overarching problem — systemic anti-asylum bias, poor quality decision-making, grotesque inconsistencies, and beyond incompetent administration of our Immigraton Courts by the DOJ!
Remarkably, Garland’s proposed solution is yet another “designed to fail” gimmick — expedite cases in his broken and biased, anti-asylum system! So the solution to a defective court system, infected with anti-asylum bias and poorly qualified judges turning out defective decisions is to make it “go faster!” The new regulations also fail to deal with the huge due process issue of lack of competent representation in the asylum system, particularly the Immigration Courts. Come on man!
We don’t need over 500 pages of new regulations and sophomoric, alternate universe “time limits” for an agency that can’t even find its files! What we need is for Garland to do the job he was hired to do more than a year ago! That’s “clean house” at the Immigration Courts, bring in competent, fair judges who have experience in Immigration Court and are legitimate, well-recognized asylum experts — starting with a new BIA (save for their one qualified Appellate Immigration Judge Andrea Saenz, a Garland appointee).
Get expert judges, intellectual leaders, and competent judicial administrators into the broken Immigration Court system to provide coherent, practical asylum legal guidance and work with advocates, the Asylum Office, and DHS to get a functional and fair legal asylum system in place and operating smoothly and efficiently at the border. It should already be in place by now. That it isn’t, is entirely “on Garland!”
Then, with experts who actually are committed to fairly and impartially applying asylum law in place, we’ll see, for the first time, how many of the asylum claims are valid and how many aren’t! And, while we’re at it, we might find that many of the “legal” immigrants Texas and the rest of America needs are right there at our borders — just waiting for our legal system to do justice and admit them. Asylum seekers are seeking legal immigration! It the USG that’s acting “illegally” here!
Leading Senate Democrats demanded that the Biden administration immediately end a Trump-era policy that blocks asylum-seeking migrants from crossing land borders into the United States, after lawyers said U.S. Customs and Border Protection expelled a single mother of three who had traveled from Ukraine to Mexico seeking refuge.
Senate Majority Leader Charles E. Schumer (D-N.Y.) cited the “desperate” Ukrainian family at a news conference Thursday and said he was deeply disappointed that the Biden administration has dragged out the Trump-era policy, which a federal appeals court in D.C. last week called “questionable.” The Trump administration issued the order two years ago under Title 42, which is the public health code. Since then, officials have expelled more than 1.6 million migrants to countries such as Haiti and Mexico.
“The United States is supposed to welcome refugees with open arms, not put them in additional danger by denying them a chance to plead their case and leaving them at the mercy of criminals and smugglers,” Schumer said, joined by advocates for immigrants. “Now’s the time to stop the madness.”
Sen. Robert Menendez (D-N.J.), chair of the Senate Foreign Relations Committee, added that the policy “has created life-threatening conditions” for migrants. He called on the Centers for Disease Control and Prevention, which issued the order under President Donald Trump and has extended it under President Biden, to rescind it.
. . . .
Sofiia, 34, who asked to be identified only by her first name because she has family sheltering in their basements in Ukraine, said in a telephone interview that her family had enjoyed a good life there. She worked as a Hebrew teacher and lived in her father’s house. They left as bombs grew closer.
“I was seriously afraid for my life and the life of my kids,” she said in English, one of four languages that she speaks.
She said she and her children — ages 6, 12 and 14 — flung suitcases stuffed with clothes and medicines into her old Citroen and drove straight to Moldova, the closest border, and then into Romania, where they traveled to Germany and caught a flight to Mexico. She said that they tried to enter legally twice, once by car and again by foot, and that officials rejected them both times, citing the Title 42 order.
“I was surprised that they don’t even want to listen,” she said. “I was trying to tell them that I have tests and I am vaccinated but they told me, ‘No, no, no, no, no.’”
She said she does not speak Spanish and was crying on the bridge in Mexico when lawyer Blaine Bookey spotted her. Bookey, the legal director of the Center for Gender and Refugee Studies at the University of California’s Hastings law school, was there with her students to aid Haitian migrants facing similar troubles.
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Bookey said Customs and Border Protection told her that they would consider admitting the Ukrainian family. They were planning to try again Thursday, she said, adding that shelters in Mexico are filled with other would-be refugees who are not eligible to enter.
“There’s families like this that are showing up at the border from all sorts of countries from similar levels of violence. They deserve process to apply for asylum,” Bookey said. “This case really brings it home for people how just problematic this policy is.”
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Read Maria’s full article at the link.
Rhetoric over action!
“Do as I say, not as I do!”
More cowardly performances from AG Garland and SG Prelogar who continue to “defend the indefensible,” putting politics over their constitutional duty to speak up for due process, human rights, racial justice, adherence to international conventions, and the rule of law.
The “COVID emergency” appears to be “over” everywhere in the U.S., even in areas with significant infection rates, EXCEPT for asylum seekers at the Southern Border who never were a major threat anyway.
“Saying no” to desperate Ukrainian mothers and children seeking refuge in the U.S. That’s ”law enforcement?” That’s how your tax dollars are being spent? Do these count as “border apprehensions?”
The Dem leaders are right to speak out. But, they waited far too long to do so. This travesty has been going on since Day 1 of the Biden Administration.
The only “hero” 🌟 here is Blaine Bookey and others like her who have the guts and courage to stand up for equal justice for all when politicos, judges, and public officials “tank!”
Blaine Bookey Legal Director Center for Gender & Refugee Studies @ Hastings Law Photo: CGRS website
Meanwhile, although the opposition to Biden’s scofflaw policy hasn’t restored the rule of law for most asylum seekers, it might have generated at least a modest reaction. CBS News reports that the CDC has revoked the (bogus) Title 42 authority to bar the entry of unaccompanied children seeking asylum.News: https://apple.news/Anfp9S-UAQFqT5PWRc-8u2A
Few Americans favor mass deportations, and with good reason — a large majority of the estimated 10.5 million undocumented immigrants in the United States have been here for at least a decade, including more than 4 in 5 Mexican migrants. Many are fixtures in their community, with U.S. citizen spouses and children; the vast majority are employed, and some own their homes and businesses.
So it was not a radical idea when Homeland Security Secretary Alejandro Mayorkas issued new enforcement guidelines last fall that urged deportation agents to focus their efforts on actual threats to public and national safety, as well as border security. As for long-term migrants, the bulk of whom are law-abiding, Mr. Mayorkas urged Immigration and Customs Enforcement officials to use some common sense. “The fact that an individual is a removable noncitizen should not alone be the basis of an enforcement action against them,” he said.
. . . .
Despite the resistance, however, they appear to be having a preliminary and positive effect of tailoring enforcement to unauthorized immigrants who are dangerous. In the first 13 months of the Biden administration, 44 percent of deported migrants had been convicted of felonies or aggravated felonies, compared with just 18 percent during the Trump administration, according to internal ICE figures. For the same period, there was also a sharp jump, compared with under the Trump administration, in the number of arrests of migrants who had earlier convictions for aggravated felonies.
At the same time, the number of migrants held in ICE detention facilities has dropped sharply. At the end of February, roughly 18,000 migrants were detained, and the vast majority had no criminal record or had committed only minor offenses, such as traffic violations, according to the Transactional Records Access Clearinghouse at Syracuse University. By contrast, nearly three times as many migrants were held for much of 2019, when the Trump anti-immigrant blitz was in full force.
. . . .
It’s not lax enforcement to refrain from arresting very old or very young migrants, or to think twice about a deportation that would tear apart a family. It’s an intelligent application of the law.
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Read the full editorial at the link.
The Post is right. But, unfortunately, by not making this “smarter PD” part of an overall plan to reduce backlogs, reform the Immigration Courts, re-establish the legal asylum and refugee systems, and end unnecessary detention, the Biden Administration has failed to take full advantage of this promising development.
By “running” from immigration improvements rather than embracing them, they also fail to to get credit for replacing the “maliciously incompetent,” demonstrably not in the national interest Trump/Miller/Homan White Nationalist nativist policies with a functioning system that actually serves the national interest and works as well as can be expected without legislative reforms.
A major problem remains the underperformance of DOJ and EOIR under AG Garland. Without the enlightened leadership and better personnel that should now be in place, Garland has failed to “leverage and build upon” improvements in DHS enforcement priorities to slash backlog and advance due process at EOIR.
Indeed, disturbingly, Garland has actually built new Immigration Court backlogat a record pace, while inexplicably relying on a “holdover Miller Lite” BIA that continues to deliver bad precedents, resulting in increased wasteful litigation and backlog-building remands from Circuit Courts. He has also ignored the many opportunities for harnessing the innovative ideas and high-level pro bono advocacy skills developed by the private sector in response to the “Trump onslaught” to dramatically advance and increase quality representation before the Immigration Courts.
The grotesque mismanagement of EOIR by the Trump DOJ resulted in a backlog of approximately 12,000 pending BIA appeals at the end of FY 2017 exploding to more than 84,000 by the end of FY 2020 — a mind-boggling 700% increase!https://www.justice.gov/eoir/page/file/1248501/download
Yet, curiously, there has been no major personnel shakeup at EOIR under Garland. The Trump-era “hand selected” BIA whose skewed anti-asylum, anti-immigrant “jurisprudence” helped create this mess remains largely intact.
Most of the EOIR senior managers who helped DOJ engineer this unmitigated disaster remain in their jobs. Garland has sent a message that there will be no accountability for “going along to get along” with the White Nationalist war on immigrants and that he isn’t interested in expertise, fundamental fairness, creativity, or dynamic leadership by example in his reeling “court system!”
Yet, Garland continues to “blow off” and “lock out” the private/NGO sector experts who could bring rational professional docket management, higher representation rates, and resulting reductions in detention to his dysfunctional system. Instead, he continues the “Amateur Night at the Bijou” approach of unilateral “Aimless Docket Reshuffling” and endless “built to fail gimmicks” designed by bureaucrats to meet political agendas without meaningful input from and consideration of the views of those who have actual private sector experience litigating in his broken system.
How does the make sense? It doesn’t!
Of course, effective, dynamic, courageous management of EOIR to focus on constitutionally required due process would provoke reactions from the GOP nativist right, including obstructive litigation. That’s why Garland also needs better litigators at DOJ: Tough, experienced “due process warriors” who will aggressively and expertly defend and advance the Executive’s authority to rationally administer the law, allocate resources wisely and prudently, and to recognize and vindicate civil and constitutional rights that have been suppressed by GOP politicos and some of their reactionary Federal Judges.
Bottom line: Probably the majority of those 1.6 million individuals rotting in EOIR’s largely self-created backlog fit the Post’s “lead-in” description above: “Many are fixtures in their community, with U.S. citizen spouses and children; the vast majority are employed, and some own their homes and businesses.”
Many could be granted asylum or other protection under proper interpretations of the law or granted “cancellation of removal” but for the unrealistic, anachronistic 4,000 annual “numerical cap” imposed by Congress decades ago. Others could be granted Temporary Protected Status (“TPS”) just as it recently was extended to Ukrainians in the U.S.
Very few are “criminals” or others who should be “priorities” for removal. Most are actively contributing to our society and many are paying taxes. In most cases, removing individuals in the EOIR backlog from the U.S., even if possible, would be a net loss for our society.
Yet, the uncontrolled, undifferentiated EOIR backlog prevents the Immigration Courts from working in “real time” on more recent cases that might actually be proper priorities.What’s the good of a more rational and professional system at DHS Enforcement if the Immigration Courts under Garland remain discombobulated? The system will not change without dynamic expert leadership at the top and an infusion of better judges, particularly at the appellate level where precedents are set and “best practices” and some measure of fair and consistent adjudication can be established and enforced.
Immigration is a complex, often convoluted system. Without a comprehensive plan led by outside experts that fixes the Immigration Courts and restores a robust functional asylum system at our borders, the positive enforcement changes initiated by Mayorkas will continue to have limited impact. And, ironically, that will play right into the hands of the Millers and Homans of the world who would like to see democracy fail, irrationality prevail, and cruelty rule!
In real time, Barr jettisoned Justice Department norms and authorized the department to open election-fraud investigations before the tallies were certified. Barr, who had falsely asserted that mail-in voting was vulnerable to counterfeit foreign ballots, did allow at one point that the Justice Department hadn’t found enough fraud to change the election outcome — “to date.” But his sycophantic departure letter (“you built the strongest and most resilient economy in American history”) said “these allegations will continue to be pursued.”
Had Barr spoken out publicly about Trump’s “clown show,” perhaps he could have punctured the “big lie” before it resulted in the Jan. 6 insurrection. Barr didn’t even speak out during Trump’s impeachment, instead offering his self-serving view 14 months later while hawking his book — after Trump managed to get the bulk of the Republican electorate to accept the “big lie” as an article of faith.
Barr is just the latest in the parade of former Trump officials to wash their hands of him long after their public condemnation would have done any good: John Bolton, John F. Kelly, Rex Tillerson, Jim Mattis, Reince Priebus, Nikki Haley, Gary Cohn, Omarosa Manigault Newman, Michael Cohen, Anthony Scaramucci, H.R. McMaster and many more.
But nobody in the administration did more to enable Trump’s deceptions and assaults on democracy than Barr. He buried the Mueller report while issuing a public summary that misrepresented it; he alleged the Obama administration “spied” on the Trump campaign, and he appointed a prosecutor who is, years later, still trying to prove true Trump’s paranoid fantasy; he scoured the world for evidence to discredit the Trump-Russia probe; his Justice Department gave credibility to Rudy Giuliani’s ravings about the Bidens in Ukraine; he tried to give favorable treatment to Trump cronies Michael Flynn and Roger Stone; he justified the violent assault on peaceful demonstrators in Lafayette Square; he made unfounded allegations against “antifa” and assembled a militia-like force of often-unidentified federal police in D.C. And on, and on.
Now Barr wants to be remembered as the brave figure who spoke truth to power? Talk about a clown show.
🤡🤡🤡🤡🤡🤹♀️🤹♀️🤹♀️🤹♀️🤹♀️
Barr’s attempted self-justification would be funny if the consequences of his silence hadn’t been so dire. He allowed Trump to pull off a democracy-defying swindle.
. . . .
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ReadMilbank’s full article at the link.
There were plenty of folks @ DOJ who “went along to get along” with the Sessions/Barr radical right-wing scheme to deconstruct justice with a series of lies, racially charged false narratives, questionable, arguably frivolous, presentations to Federal Courts, use of pretexts, discrediting of civil rights and free and fair elections, and undermining or outright violations of both domestic laws and international conventions protecting the human rights of migrants.
Others were installed or promoted within Justice because of their actual or perceived willingness to run over the law, truth, and often human dignity, to further the far-right agenda. In other words, they would elevate loyalty to the Trump agenda over their duty to the U.S. Constitution!
What, exactly, has AG Garland done to “clean house”🧹 and restore the rule of law, Government ethics, fundamental fairness, and due process for migrants? Good question!🤨
In the meantime, notwithstanding his pathetic, outrageous, disingenuous, attempt at rehabilitation “BTB” Barr should go down in history as exactly the divisive, dishonest, neo-fascist, theocrat sleaze-ball that he is!🤮
And, Garland will be judged by what he does to reject and reform the mess @ Justice left by his predecessors. In that respect, “Miller Lite” won’t do it.
This might be Garland’s vision for justice, but to the NDPA, “no way!”
Under Trump, asylum seekers sent to Mexico were often confused and adrift, unsure how to find legal help or return for their U.S. court appointments. They were visible on the streets of Mexican border cities and were easy targets for criminal gangs.
Marysol Castro, an attorney with El Paso’s Diocesan Migrant and Refugee Services who provides legal aid to asylum seekers in MPP, said the program’s return under Biden was a “relief” to some, “because otherwise if you go to the border you’re getting expelled” under Title 42.
Castro said new enrollees in MPP have court dates with fast-tracked hearings, unlike asylum seekers who were placed into the program under Trump and are still stuck in Mexico “with no hope.”
Mexican authorities say they received assurances from the Biden administration that migrants placed in MPP would have improved access to legal counsel. But despite the vastly lower numbers, there is still far more demand for pro bono legal services than nonprofit groups and charities can provide, Castro said.
More than two-thirds of MPP returns under Biden have been sent to Ciudad Juárez, where they are provided secure transportation through a State Department contract with the U.N. International Organization for Migration. The Mexican government houses them in a shelter set up in a converted warehouse in an industrial area of the city.
“The shelters are more restrictive,” said Victor Hugo Lopez, a Mexican official who helps oversee the program. “The migrants can request permits to go outside, but we try to keep them safe by keeping them inside.”
Dana Graber Ladek, the IOM chief of mission in Mexico, said her organization continues to oppose MPP on principle, even as it’s working with both governments to ameliorate conditions for those sent back.
“It still has a tremendous amount of negative impacts,” she said. “It’s not how asylum is supposed to work.”
Representation remains a problem, but also an opportunity, just as Nolan Rappaport said on The Hill! Fortunately, Professor Michele Pistone has been thinking in advance and has built a “scalable” program (VIISTA-Villanova) that already is turning out qualified grads who can become accredited representatives and could quickly be expanded. By coordinating scheduling of hearings with nationwide NGOs and pro bono groups and “leveraging” resources that might be available to get pro bono resources to the border without overtaxing them elsewhere with “Aimless Docket Reshuffling,” (“ADR”), the representation problem can be solved.
One good sign is that cases of those likely to be granted, Venezuela, Nicaragua, Cuba, have been prioritized which can help move dockets forward while reducing resource-wasting appeals and petitions for review. But, there is much more “low hanging fruit” here to be harvested, in my view:
Also prioritize many Haitian cases, domestic violence cases from Latin America, and family-based cases which, if represented and documented, should be relatively straightforward grants;
Replace the BIA with judges who are asylum experts and will issue the necessary positive guidance on granting asylum that will move dockets, promote consistency, and reduce appeals;
Why ignore the “waiting for Godot” cases left over from Trump’s intentionally “built to fail” program? Get them represented and scheduled for hearings;
End the failing and totally misguided “Dedicated Dockets” at EOIR. Instead, treat the MPP as the “Dedicated Docket;”
To keep backlog from further building, use ideas from the “Chen-Markowitz” plan to remove two “hopelessly aged” cases from the EOIR backlog docket for every MPP case “prioritized.” This could also free up some representation time. Go from ADRto “Rational Docket Management” (“RDM”), closely coordinated with the private bar and DHS!
Finally, keep in mind that directly contrary to the babbling of Paxton and other ignorant GOP White Nationalists, the purpose of asylum law is protection, not rejection! And, the generous standard of proof for asylum, recognized by the Supremes 35years ago, combined with existing regulatory presumptions of future persecution based on past persecution should, if honestly and expertly applied, favor asylum applicants (even if that hasn’t been true in practice). The U.S. legal system is supposed to be about guaranteeing due process fundamental fairness, and achieving justice, not to serve as a “deterrent,” “punishment,” or “enforcement tool.”
In the case of MPP, everyone in the program has already passed initial credible fear or reasonable fear screening!That means with well-qualified Immigration Judges possessing asylum expertise, new expert BIA judges, competent representation, and a focus on insuring justice by DHS Counsel, many, probably the majority of the MPP cases should be grants of asylum of other protection.
That will help clean out the camps, while addressing the serious “immigration deficit” that was engineered by Trump and Miller. It also allows refugees to become contributing members of our society, rather than rotting away and squandering their human potential in squalid camps in Mexico!
To date, most MPP cases havebeen denied with questionable due process, little obvious expertise, and a complete lack of positive, practical guidance by the BIA. This strongly suggests severe shortcomings and bias in the DHS/DOJ implementation of Remain in Mexico (“MPP”). But, it’s never too late to do better!
The Post article suggests that there have been some modest improvements in MPP under Biden. It’s time to take those to another level! The ideas and tools are out there. All that’s missing is the dynamic leadership, teamwork, and competent, creative., due-process-focused focused management.
Born in 1921, Motley was the first Black woman to argue at the Supreme Court and the first to serve as a federal judge. Democratic presidents twice considered — and twice rejected — her for a seat on a federal appeals court.
Motley, who went by Connie, faced countless indignities. She graduated from New York University and Columbia Law School, and a Wall Street firm offered her a job interview based on her stellar academic record. But the firm wouldn’t even meet with her when she showed up for the appointment because she was Black. Instead, she took a job at the NAACP Legal Defense Fund.
She was the only female lawyer at the Fund for 15 years. During her employment interview in 1945 with then Legal Defense Fund boss Thurgood Marshall, the future Supreme Court justice asked her to climb a ladder next to a bookshelf. “He wanted to inspect her legs and feminine form,” writes Tomiko Brown-Nagin in her compelling and readable new biography of Motley, “Civil Rights Queen.” When Marshall stepped down to become a judge in 1961, he passed over Motley and picked a less experienced White man as his successor.
James Hohmann Columnist WashPost PHOTO: WashPost website
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Motley earned less than men who did the same work. Motley nonetheless won nine of the 10 cases she argued at the Supreme Court. As a new mother, struggling with postpartum depression, she drafted briefs for Brown v. Board of Education. Pursuing the implementation of the landmark decision turned out to be a decades-long slog. She successfully integrated the flagship universities in Georgia and Mississippi, where she was James Meredith’s attorney.
In 1965, Lyndon B. Johnson had intended to nominate Motley to take Marshall’s seat on the U.S. Court of Appeals for the 2nd Circuit when he resigned to become solicitor general — a stepping-stone to the Supreme Court in 1967. But then-Sen. Robert F. Kennedy (D-N.Y.), remembered by history as a civil rights champion, pressed Johnson to pick a White man over Motley for the appellate court. Kennedy called Attorney General Nicholas Katzenbach in July 1965 to complain that naming Motley would be too risky from a “political and public relations viewpoint.” Katzenbach summarized the call in a memo to Johnson. “I think there is merit in Sen. Kennedy’s assessment,” the attorney general told the president.
(Johnson nominated Motley to the District Court for the Southern District of New York a year later. The American Bar Association declined to give Motley a “highly qualified” rating on the dubious grounds that she lacked trial experience in New York, even though she’d litigated hundreds of cases in federal courts. Senate Judiciary Committee Chairman James O. Eastland (D-Miss.) accused her of being a communist sympathizer and held up Motley’s confirmation for seven months.)
A dozen years later, during Jimmy Carter’s presidency, Attorney General Griffin Bell had veto power over judicial nominations and opposed Motley’s elevation to the 2nd Circuit because they’d tangled when she was a lawyer for the Legal Defense Fund. Carter eventually nominated Amalya Kearse, a Black woman who was a partner at a major law firm and didn’t have critics inside his administration.
Along the way, Motley mentored Sonia Sotomayor after the future justice joined Motley’s court in 1992. Sotomayor, who in 1998 secured the 2nd Circuit appeals court seat that eluded Motley, famously wrote that “wise Latina” judges “would more often than not reach a better conclusion” than White male judges who lacked their lived experiences. Motley, who rejected being called a “feminist,” disagreed that female judges brought special insight to the bench. Instead, she argued for a more representative judiciary on the grounds that inclusion would strengthen democracy by increasing confidence in the rule of law among racial minorities.
Motley died in 2005 at 84, still believing in the ability of the third branch to help deliver on that promise. Biden’s pledge to name a Black woman to the Supreme Court is a validation of Motley’s enduring faith in a system that repeatedly passed her over.
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The Thurgood Marshall story shows that it wasn’t only White men who undervalued Black women. Black men displayed some of the same disgusting and condescending attitudes! Motley just kept on achieving and contributing, making the most of her opportunities, rather than stewing about what had unfairly (and probably illegally) been denied to her.
Obviously, the careers of guys like GOP Senators Wicker, Cruz, and Kennedy show that White guys still benefit from a system that still doesn’t hold them to the same standards imposed on women, particularly talented women of color.See, e.g.,https://apple.news/A-e_PL2khRhiEbrj_L7woCA
But, unlike these “snowflake right-wing whiners,” women of color are used to “plowing forward” and making their own way, despite systemic biases and obstacles placed in their path by men of limited ability who spread lies, show disgusting bias, and contribute little to the common good!
Folks, this is the same Ted Cruz who demonstrated his true character and lack of concern for his constituents by fleeing with his family to a cushy resort in Cancun while Texas was in crisis! He’s also someone who would deny legal refuge to those whose lives are actually in danger because they don’t “fit in” with his White Nationalist view of desirable demographics. (Compare “Cancun Ted’s” version of “refuge” with the camps in which real refugees and their families are rotting in Mexico thanks to righty-wing judges and GOP AGs.)
Perhaps the most interesting disconnect among the privileged GOP White guys who are opposing a Black woman nominee who hasn’t even been named yetis the juxtaposition with the performance of these dudes during the Kavanaugh confirmation hearings — an unending homage to the “birth privilege” of angry, entitled right-wing white guys. Here’s an apt quote from Chauncey Devega in Salon:
When Trump says “young men,” no adjective or modifier is needed. It is clear to everyone, given his inclinations, history, words and deeds, that “young men” of course means “white men”.
This reflects a larger sentiment in America at present. For too many white men — poor, working-class and middle-class — there is widespread anger at somehow being displaced by nonwhites and women who are “cutting ahead in line” because of “affirmative action” and other nonexistent “entitlements.”
These angry white men feel obsolete and marginalized in a changing America, frustrated by globalization and excluded by a more cosmopolitan country. But their anger is misdirected toward the groups they perceive to be receiving “special treatment.” Their collective anger would be better directed at men who look like them but who have created social inequality, injustice and immiseration in America and around the world.
President Biden should stick to his guns and nominate a talented and deserving Black woman. It’slong, long overdue! And, he should pay no attention whatsoever to the outrageous, totally disingenuous laminations of privileged guys like Cruz, Wicker, and Kennedy who have already “achieved” far above the level of their demonstrated merit, ability, or positive contributions to the common good.
We need Federal Judges and Justices who are wise, fair, talented, experienced contributors to society; we don’t need the advice or “stamp of approval” of insurrectionists and dividers who rely on racially biased myths to cover for their own all too obvious human inadequacies!
“Aires Daniel Benros Da Graca petitions for review of a decision of the Board of Immigration Appeals (the “Board”) affirming his order of removal and denying his requests for cancellation of removal and voluntary departure. Because we find that a conviction under Rhode Island General Laws (“RIGL”) § 31-9-1 is not categorically a theft offense, we grant the petition for review, vacate the decision below, and remand for further proceedings.”
“Appellant Imad Jaffal, born in Jordan, seeks a declaration that he is entitled to derivative U.S. citizenship under former 8 U.S.C. § 1432(a). That statute provides that “a child born outside the United States automatically acquires United States citizenship if, while the child is under the age of eighteen, the parent with legal custody of the child is naturalized while that child’s parents are legally separated.” Jaffal’s father was naturalized when Jaffal was seventeen years old, and Jaffal presented evidence to the District Court that he was in the sole legal custody of his father when his father was naturalized and his parents were separated. The District Court, however, declined to accept Jaffal’s evidence of his parents’ divorce. Because we conclude that was error, we will reverse the order of the District Court and remand the matter with instructions to issue a judgment declaring Jaffal to be a national of the United States.”
Here’s my favorite quote from Judge Torresen’s decision inDa Garcia v. Garland:
Despite this apparent disconnect between RIGL § 31-9-1 and the Board’s definition of theft offense, the Board in Da Graca’s case determined that to prove the statute’s overbreadth, the Petitioner was required to identify actual cases in which Rhode Island had enforced the statute against de minimis deprivations of ownership interests. Da Graca contests the Board’s imposition of an actual case requirement and argues that he “need not necessarily proffer specific examples of Rhode Island prosecutions in order to establish a ‘realistic probability’ that the state would apply its statute to conduct that falls outside the generic definition of a crime.” We agree with Da Graca.
Essentially, Garland’s BIA “makes it up as it goes along” to reach a denial, then Prelogar’s DOJ attorneys defend the illegal result. Sounds like a really bad system, lacking accountability, expertise, common sense, and, sometimes, professional responsibility.
Lest you think that the legal nonsense being produced by Garland’s BIA and the USCIS is “below Prelogar’s radar screen” in her exulted position, that’s NOT true! Every adverse decision suffered by the USG must be reported to the SG’s Office with an analysis and recommendations from the agency’s attorneys, the litigators who handled the case, the appellate section of litigating division (here the Civil Division), and the SG’s staff. No appeal, petition for rehearing en banc, or petition for cert. can be filed without the express authorization of the SG’s Office.
So, Prelogar is well aware of the bad positions, unfairness, and poor work product DOJ attorneys are defending (sometimes with a lack of candor or misleading the courts) and their abuses of the time of the Article IIIs.
Even with the “real” (Article III) Federal Courts moving markedly to the right (following four years of Trump-McConnell appointments and eight years of lackadaisical performance by the Obama Administration), and rules that strongly favor the Government on judicial review, DOJ’s haphazard performance under Garland and Prelogar continues to earn a stream of avoidable “kickbacks” from the Article IIIs. The DOJ system is broken in many places — EOIR is just the most obvious, most pressing, and most easily addressed area of failure.
At the same time they acknowledge but downplay the existential crippling effects of Garland’s failure to bring progressive reforms to EOIR, his defense of disgraceful, immoral, and inhumane “Miller Lite” positions in Federal Court, his intentional indifference to human suffering and the complete breakdown of the rule of law at our borders, and his disdain for removing the Trump enablers, deadwood, and poor lawyers from DOJ — at all levels.
I have a radically different perspective on the future of meaningful progressive immigration reforms, based on my nearly 50 years of involvement with the system on both sides and at all levels — more than most folks.
There will be no meaningful, sustainable immigration reforms without a radically reformed, remade, Immigration Court system with a judiciary of due-process-oriented progressive experts who have the courage to “speak truth to power,” stand up for the legal, constitutional, and human right of the most vulnerable, and put integrity, humanity, and the best interests of our nation above career advancement, survival, or “ingratiation with the powers that be.” That’s NOT Garland’s DOJ — which remains largely the out of control, often ethically challenged morass that he inherited from his predecessors.
Let’s not forget that through intentional misuse of precedents, weaponization of EOIR, and White Nationalist litigation strategies, Jeff Sessions was able to largely disable the entire asylum system, including USCIS Asylum Offices, and shift USCIS Adjudications from service to “enforcement only,” in preparation for the “final eradication” of asylum and crippling of our entire legal immigration system by his crony and former subordinate, Stephen Miller. And, the folks who helped him do that and “went along to go along” with abuses are still largely on board and in key positions in Garland’s DOJ — actually operating with his apparent “stamp of approval.” Outrageous!
From a due process, human rights, progressive, good government, equal justice, racial equality standpoint, as well as from any aspect of moral leadership on fundamental values, Garland’s performance at DOJ has been unacceptable. Has Garland visited any of the camps in Mexico or gone to the “New American Gulag” to witness first-hand the human carnage for which he is responsible? Heck no! That’s a job for progressive experts whose input and advice he then shuns, ignores, and “tunes out!”
For progressive advocates to downplay the Biden Administration’s gross failures or “over-cheer” incremental progress that means little without fundamental reforms at EOIR and the DOJ only deepens the fecklessness of their own positions and furthers the disrespect and under-appreciation of their efforts, potential power, and value that has become an endemic feature of the Democratic Party.
The Biden Administration might talk a good game, particularly around election time; but, in reality, they are governing largely in fear of and like nativist Republicans — but getting no “political return” whatsoever for betraying their supposed values and their base (see, Catherine Rampell). Advocates reward and tolerate such disgraceful and intellectually dishonest conduct at their own peril!
Meanwhile, Suzanne Clark, President of the U.S. Chamber of Commerce, certainly no “progressive shill,” speaks truth about the need for and our ability to accept more immigrants:
Allowing more immigrants into the US would help mitigate both soaring inflation and the current labor shortage, the CEO of the US Chamber of Commerce said.
“We need more workers,” Suzanne Clark told reporters Tuesday, per CNN. “We should welcome people who want to come here, go to school, and stay.”
“That is a place the government could be particularly helpful and we do believe it would be anti-inflationary,” she said, per CNN.
Those immigrants are right in front of us: rotting in camps at the border, being returned to danger or death with no process — both as a result of Garland’s failure to re-establish our legal asylum system at the border — or languishing in Garland’s mushrooming 1.6 million Immigration Court backlog!It doesn’t take a “rocket scientist” to see that instead of wasting time, money, and resources on mindless “enforcement” intended to deter and discourage those who might help us by helping themselves, we should have set up fair and timely processing systems, staffed by experts, that would identify the many individuals at the border and already in the U.S. who can qualify to remain under fair and properly generous interpretations of asylum law, withholding, CAT, U & T visas, “stateside processing waivers,” cancellation of removal” (for those already here), TPS, and other possibilities.
This is just as much”law enforcement” and “maintaining the integrity of our system” as are the efforts to increase deportations, terrorize communities, or close borders to “deter” migrants (primarily those of color) that has been practiced to some degree by every Administration. It also makes sense, economically, practically, and ethically.
It starts with an Attorney General and DOJ with the courage and vision to end the “deterrence only” misconstruction of our laws and stand up for the legal and human rights of migrants, regardless of race, color, creed, or manner of entry. That’s not what Garland has been doing to date! Too bad, because there will be no resolution of immigration issues — nor will there be racial justice in America — without an AG who will stand up for the real rule of law rather than the parody of the law and justice purveyed by Miller and his White Nationalists and still being parroted and too often defended by Garland and his minions.
