"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
I personally don’t make much of Scott’s ability to reason. This is the same man who said in March that “woke supremacy,” whatever that is, “is as bad as white supremacy.” There is no world in which recent efforts at enlightenment can be equated to enslavement, lynching and mass incarceration. None.
It seems to me that the disingenuousness on the question of racism is largely a question of language. The question turns on another question: “What, to you, is America?” Is America the people who now inhabit the land, divorced from its systems and its history? Or, is the meaning of America inclusive of those systems and history?
When people say that America is a racist country, they don’t necessarily mean that all or even most Americans are consciously racist. However, it is important to remember that nearly half the country just voted for a full-on racist in Donald Trump, and they did so by either denying his racism, becoming apologists for it, or applauding it. What do you call a country thus composed?
Historically, however, there is no question that the country was founded by racists and white supremacists, and that much of the early wealth of this country was built on the backs of enslaved Africans, and much of the early expansion came at the expense of the massacre of the land’s Indigenous people and broken treaties with them.
Gathering the dead after the Colfax massacre, published in Harper’s Weekly, May 10, 1873
Eight of the first 10 presidents personally enslaved Africans. In 1856, the chief justice of the United States wrote in the infamous ruling on the Dred Scott case that Black people “had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.”
The country went on to fight a Civil War over whether some states could maintain slavery as they wished. Even some of the people arguing for, and fighting for, an end to slavery had expressed their white supremacist beliefs.
Abraham Lincoln said during his famous debates against Stephen A. Douglas in 1858 that among white people and Black ones “there must be the position of superior and inferior, and I, as much as any other man, am in favor of the superior position being assigned to the white man.”
Some will concede the historical point and insist on the progress point, arguing that was then and this is now, that racism simply doesn’t exist now as it did then. I would agree. American racism has evolved and become less blunt, but it has not become less effective. The knife has simply been sharpened. Now systems do the work that once required the overt actions of masses of individual racists.
. . . .
As Mark Twain once put it: “The difference between the almost right word and the right word is really a large matter. ’Tis the difference between the lightning bug and the lightning.”
Being imprecise or undecided with our language on this subject contributes to the murkiness — and to the myth that the question of whether America is racist is difficult to answer and therefore the subject of genuine debate among honest intellectuals.
Saying that America is racist is not a radical statement. If that requires a longer explanation or definition, so be it. The fact, in the end, is not altered.
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Read Blow’s full article at the link.
Four things that are clear to me:
The “history” that most of us in my generation learned in high school was “whitewashed;”
The monumental achievements of non-white Americans, women, and children which allowed this country to exist, prosper, and flourish have consistently been ignored or downplayed;
America still has race issues;
The GOP, in particular, has failed to come to grips with the issue of race in 21st century America (apologists Scott & Graham notwithstanding).
🇺🇸⚖️🗽Due Process For All Persons Under Law, Forever!
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During the Trump administration, Alison Peck started to see more of her cases have an outcome she describes as “a door just slammed” in the clients’ faces. A law professor and co-director of the Immigration Law Clinic at West Virginia University College of Law, Peck grew concerned that paths to immigration relief previously available to them were no longer an option. The explanation for it was an increasingly common practice whereby the US Attorney General, who is a political appointee, would self-refer cases previously decided by an immigration judge and then use them as vehicles for broad policy changes. These precedent-setting determinations included restricting asylum for victims of domestic violence and gang violence, and limiting immigration judges’ power to manage their dockets by temporarily closing low-priority cases. Some of Peck’s clients were impacted by both decisions. “It was very distressing to see this happen and have to tell people midway through the game that the rules had been changed,” she says. Hence, the experience of the door slammed shut.
Peck couldn’t wrap her mind around the fact that these high-stakes cases with potentially life-or-death consequences were not being decided by impartial jurists in an independent court, but within the Department of Justice, a law enforcement agency. “It didn’t make sense to me, and it didn’t fit with anything I knew about administrative law theory,” she says. So Peck decided to look for an explanation for how this anomalous system had been set up in the first place, and what rationale, if any, sustained it despite a general consensus that the existing structure is nothing if not broken.
Peck shares her findings in the upcoming book The Accidental History of the US Immigration Courts: War, Fear, and the Roots of Dysfunction, a revealing account of how wartime paranoia and xenophobia shaped a system that has been with us for over 80 years. “As long as the immigration courts remain under the authority of the Attorney General, the administration of immigration justice will remain a game of political football—with people’s lives on the line,” Peck writes. I called Peck to discuss what World War II and Nazi Germany have to do with modern-day US immigration courts, and how Congress can fix an “irrationally constructed” system.
You trace the origins of the architecture of immigration courts back to two pivotal moments. The first is 1940, when President Franklin D. Roosevelt moved the immigration services from the Department of Labor into the Department of Justice. How did that come about?
Immigration services had long been treated as kind of a stepchild within the Department of Labor. With the New Deal and the labor strife throughout the 20s and into the 1930s, the Secretary of Labor had the obligation to deal fairly and impartially with union leaders, many of whom were immigrants, but then also had the responsibility of investigating and deporting immigrants who were in the country unlawfully. That tension started to become pretty extreme. Francis Perkins, the Secretary of Labor at the time, ended up being in the political crosshairs in part because of her handling of immigration cases. She was in favor of immigration being moved out of the Department of Labor, but she didn’t think it was very appropriate to have it in the Department of Justice because it shouldn’t be associated with crime and law enforcement.
In fact, Roosevelt had resisted members of Congress and the public for over a year. He had lawyers in the DOJ study the issue, and they sent him a report concluding that moving the immigration services into the DOJ would be inappropriate and could change the understanding of immigration for the country. His attorney general at the time, Robert H. Jackson—who later became a Supreme Court justice and also presided at the Nuremberg trials—advised him against it, calling for a sort of temporary wartime agency that dealt with the threat of sabotage, rather than setting up a system that invites an entry of politics into immigration cases. So it’s not as if Roosevelt and his advisers didn’t understand the risks of what they were doing. They did, and they resisted it for some time. But because of the fear and the nature of the threat and things that they just couldn’t have known at the time, they decided, for lack of any better option, that they would do this.
At the time, the Roosevelt administration justified the move as a necessary response to a national security threat. How exactly did the war in Europe ultimately influence his decision?
In 1939, much of Congress was still pretty isolationist, and there was a lot of skepticism about Roosevelt’s willingness to get involved in the war and make the United States a leading force. The occupation of Denmark by the Nazis in April 1940 was really a game changer. The isolationism of the United States up until that point was based on this notion that we’re an ocean apart and protected by geography—what happens in Europe can’t affect us directly. But Denmark had possession of Greenland, so the Nazis had a base in North America where they could refuel, restock, and plan attacks from there.
By that time, the State Department and the FBI were both actively tracking what they saw as the “Fifth Column” threat: this idea that foreign nationals might be plotting to take over from within the country without anyone ever knowing what happened. When the invasion of France and the Low Countries occurred in May [1940], many people assumed that this must have been because people in high level positions within these countries were simply raising the drawbridge and letting the Nazis through without resistance. [Roosevelt] was very influenced by the visit that the Undersecretary of State Sumner Welles had paid to the Axis powers. He came back very worried and told Roosevelt “I think we need to make this move.” After Roosevelt had said no for a year, he changed his mind and within three days, it was done.
This decision looks very different in retrospect, doesn’t it?
It’s understandable in historical context that Roosevelt felt that he needed to do something to protect against what could be a serious threat. But in hindsight, he realized the fears were misplaced. As it happened, the Nazis kept their plans very close to the vest and didn’t trust people outside their inner circle. This “Fifth Column” was actually just propaganda and the enemy stoking fear in order to create insecurity and undermine Allies’ morale.
“What happened was that people were understandably fearful at times of national security crisis and were easily swayed by fear and propaganda that was spread precisely to create that type of fear.”
Looking back now, 80 years later, it certainly has had the effect that Roosevelt and his advisors feared of making immigration be equated with crime and caught up with the political process. It really is sort of a function of historical accidents that we have the system where it is. It’s not the case that anyone ever said it would make good sense from an administrative law perspective to have immigration adjudication done in the Department of Justice under the control of the Attorney General. That was not a conversation that ever occurred. What happened was that people were understandably fearful at the time of national security crisis and were easily swayed by fear and propaganda that was spread precisely to create that type of fear.
You write that the scenario Roosevelt had feared sixty years earlier of a foreign attack from within the country came to be in the early 2000’s with 9/11, and that in turn overhauled immigration policy in the twenty-first century. What did that overhaul mean specifically for immigration courts?
I looked to see whether there had ever been serious consideration of changing this system in the last 80 years, particularly after the realization that this so-called “Fifth Column” never really existed, and this was really just a response to Nazi propaganda that we are still stuck with. What I found was that in the 90s, there was some movement toward reform, but then 9/11 happened and changed the way Americans were thinking about foreign nationals, immigration, visas, and the relationship between the State Department and the FBI or other domestic law enforcement. For some time, it appeared that the immigration courts would be moved into [the recently created Department of] Homeland Security. Many people in Congress, especially Democrats, but some Republicans as well, were concerned about this. Maybe having it in a law enforcement agency wasn’t perfect, but having it in this national security agency, where it would once again be closely aligned with the prosecutors, would be even worse. With relatively little focus on the immigration courts at the time, the best that could be accomplished was to keep them in the Department of Justice instead of moving them into the Department of Homeland Security. It was an opportunity for reform that then got swept away by the events of 9/11.
After that, the issue sort of went underground again, until it started to appear on people’s radar screens during the Trump administration. Until then, the immigration courts were mostly allowed to function independently, and so people weren’t as up in arms about it. For the most part, Attorney Generals were pretty hands off and so people thought: Well, it’s a system that doesn’t make a whole lot of sense, but it mostly works, so it’s not that important to make this institutional change. I think it’s an unfortunate combination of political forces that has led the immigration courts to sort of limp along in this way.
“The Trump administration exposed the vulnerability that was already there in the system.”
Immigration courts were dysfunctional in nature long before Trump took office, but under his administration that gained a new dimension. What did this unprecedented politicization of the courts look like?
The Trump administration exposed the vulnerability that was already in the system. What we saw was a much higher level of intervention, about four times higher than even the George W. Bush administration, which had been the most active prior. One of the ways that happened was through the frequency with which the Trump administration used the Attorney General’s self-referral power, which means the Attorney General can take a case away from an immigration judge at any time and decide it as he wishes. In the Trump administration, that power was used 17 times in four years. Previously, the highest number had been 10 times over eight years.
In one case, the Attorney General made a statement that victims of domestic violence and gang violence would generally not meet the asylum standard. Officers within the Department of Homeland Security were confused by the scope of the decisions that were unprecedented. That confusion is still ongoing, and it affects what happens every day in the immigration courts. Immigration judges are feeling that their independence has been highly compromised, and they are hamstrung by the decisions of the Attorney General to do things that they actually think are just. This system that everyone tolerated for a while, assuming and hoping there wouldn’t be abuses, has now shown to be very clearly subject to abuses.
Jeff “Gonzo Apocalypto” Sessions’s outrageously wrong, unethical decision in Matter of A-B- illegally condemned many brown-skinned refugee women from Central America to abuse, torture, and even death. So far, Judge Garland has failed to intervene to correct the record, restore the rule of law, and end the unnecessary suffering! Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
There’s currently a backlog of more than 1.3 million cases. Yet, despite what seems to be a consensus that immigration courts are not working as they should, we still have the same system from 80 years ago. Are there any solid arguments to justify keeping the immigration courts under the DOJ?
There may be an assumption by people that it was set up this way for a reason, and that we might be losing something if we changed it. When we look at the history, it makes clear that it really was a historical accident that we ended up with this system. There never was a coherent rationale. It was something that was done as a matter of exigency, when there wasn’t a good solution. And so they took a bad solution instead and stuck with it. There’s not a whole lot of efficiency or institutional knowledge that’s being gained by having these immigration courts within the Department of Justice.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up.” Largely self-created backlogs resulting from “Aimless Docket Reshuffling” by unqualified, xenophobic DOJ politicos and incompetent EOIR bureaucrats have become endemic at the totally dysfunctional Immigration Courts. There are lots of great ideas in the NDPA on how to slash the backlog immediately without denying anyone due process. But, Judge Garland to date has ignored them.
I think most people in the United States are not even aware that the immigrant courts are not part of our federal judiciary. They may be assuming that there’s a certain fairness built in that we expect from the federal courts when, in fact, it isn’t there. These are not courts; they are part of a law enforcement agency. The system is actually set up in such a way that it allows for political decision-making to become part of these court cases in a way that Americans don’t usually think of court cases being decided. That’s really inconsistent with American notions of justice, fairness, and due process. We think that those are decided by what we hope and aspire to be independent judges who are not part of the political branches and not subject to the whims of politics. From that fundamental misunderstanding, if we look deeper, we can see a desire for change. We have the choice to change that now.
Your book seems to suggest that the problem runs way deeper than what stopgap measures like hiring more immigration judges could accomplish. What do you think is an appropriate approach to creating independent immigration courts?
Adding more immigration judges or changing the way immigration judges are hired to have more diversity are not bad ideas in and of themselves, but they don’t get at the root of the problem. The root of the problem is that the immigration courts were never really intended to be impartial courts. Under our basic founding Constitutional principles of due process and separation of powers, we can and should protect the adjudication process and make it separate from the law enforcement process. The Biden administration could play a role by urging Congress to seriously consider and to pass legislation that would separate immigration courts into an Article I court system. Article I courts are a relatively independent system set up by Congress and, by definition, would create separation between the immigration courts and the executive branch. That would give us something that approaches the fairness that people deserve.
This interview has been edited for length and clarity.
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EOIR continues to apply “old time methods” to those poor souls stuck at the “retail level” of American “justice,” as “Team Garland” ignores the screams for help!
“Justice” Star Chamber StyleWoman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
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Clearly, experts like Professor Alison Peck, who understand and have personally experienced the abominable, unconstitutional, life threatening unfairness of this broken and totally dysfunctional system should be the judges and intellectual leaders, particularly at the appellate level, of a reformed, independent Immigration Court system.
In a functioning legal system, successful asylum seekers would fill their essential role in increased legal immigration that has been denied them by a distorted, racist, misogynist system that treats them as a “problem to be solved” — largely because of their skin color — rather than humans entitled to our protection who will contribute to our future.
Indeed, every day we illegally turn away many of those we need for our future in their hour of direst need! Such selfishness, cruelty, mockery of the rule of law, and short-sightedness does not reflect well on our nation!
“It’s not rocket science,” but so far Garland, Monaco, and Gupta have “blown off” the advice of human rights experts like Professor Peck and refused to consult, elevate, or otherwise empower those who could bring due process, order, and expert, professional judging to the Immigration Courts!
Judge Merrick B. Garland, U.S. Attorney General. Why is he carrying out Stephen Miller’s White Nationalist policies @ EOIR? Official White House Photo Public RealmVanita Gupta Associate AG, previously a widely respected expert in civil rights, human rights, and racial justice has so far failed to have an impact on institutionalized racism, misogyny, and reactionary “judging” at EOIR! Photo: Brookings Institution, Paul Morigi, Creative Commons LicenseLisa Monaco Deputy AG, newly confirmed, but appears to have little awareness and no plans for aggressively reforming the worst “courts” in America, spewing out injustice at the DOJ. Official USG Photo, Public Realm
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19 & Closures
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
EOIR Status Overview & EOIR Court Status Map/List: Unless previously specified on the court status list, hearings in non-detained cases at courts are postponed through, and including, May 14, 2021. (It is unclear when the next announcement will be. EOIR announced 5/14 on Mon. 3/29, 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22on Mon. 12/28.) There is no announced date for reopening NYC non-detained at this time.
NYT: Secretary of State Antony J. Blinken was in the Oval Office, pleading with President Biden. In the meeting, on March 3, Mr. Blinken implored the president to end Trump-era restrictions on immigration and to allow tens of thousands of desperate refugees fleeing war, poverty and natural disasters into the United States, according to several people familiar with the exchange. But Mr. Biden, already under intense political pressure because of the surge of migrant children at the border with Mexico, was unmoved.
Bloomberg: Trump regulations aimed at lengthening the amount of time an asylum seeker had to wait to apply for work authorization are now under review, with potential changes coming, according to a new government filing in a federal lawsuit over the rules.
Intercept: A joint human rights report published Tuesday, based on more than 110 in-person interviews and an electronic survey of more than 1,200 asylum-seekers in the Mexican state of Baja California, documented at least 492 cases of attacks or kidnappings targeting asylum-seekers expelled under a disputed public health law, known as Title 42, since President Joe Biden’s January inauguration.
Politico: A push from Biden touting the economic benefits of immigration reform could supplement efforts by progressive groups to sell a pathway to citizenship for undocumented people as a $1.4 trillion boon for the U.S. economy. It also may boost efforts by some on Capitol Hill to argue that a pathway to citizenship for some undocumented immigrants can be passed in a reconciliation package that, if sanctioned by the Senate parliamentarian, could move through the chamber with just 50 votes.
NYT: To date, Immigration and Customs Enforcement has reported over 12,000 virus cases. Our investigation found that the impact of infection extended beyond U.S. detention centers.
TRAC: Rates of case transfers out of MPP varied by court, from a high of 28 percent of cases assigned to the MPP court in Brownsville, Texas, transferred to a non-MPP court, to a low of just three percent of cases assigned to the MPP court in Laredo, Texas.
WaPo: Many missed their court dates because they were kidnapped and held hostage, or detained by Mexican officials, or because they couldn’t find a safe way to get to the border in the middle of the night, when most were told to arrive for their hearings, according to lawyers, advocates and the migrants themselves. Some had medical emergencies related to the conditions in which they waited. An untold number, their asylum cases now closed, remain in hiding in northern Mexico.
WaPo: More than 40 percent of the minors released by the government have at least one parent already living in the United States, but HHS has been taking 25 days on average to approve release and grant custody to the mother or father, a number that dipped to 22 days Thursday, according to the latest internal data reviewed by The Washington Post. It takes an average of 33 days to release minors to other immediate relatives, such as siblings.
Roll Call: More than a month after former D.C. Circuit judge Merrick B. Garland was confirmed as attorney general, the Justice Department — which houses the U.S. immigration court system — has not intervened.
CNN: In short, if immigration remained at near-zero levels, within decades, the country could be older, smaller and poorer. But if the US government welcomed more newcomers, within decades, the country could be younger, more productive and richer.
Intercept: Historically, the criminalization of “promoting” sex work has left the loved ones and roommates of sex workers, as well as sex worker rights advocates, vulnerable to prosecution. For many immigrant workers, the risk of deportation will remain. The DA’s office said that it would continue to bring other charges that stem from prostitution-related arrests. “Trafficking” will no doubt be used to carry out raids and harass survival workers.
Law360: The U.S. Supreme Court on Monday ruled Texas and 13 other states moved too quickly in attempting to revive the Trump-era public charge rule, saying the states would have to first make their case at the district court level.
Unpublished BIA decision finds prior attorney provided ineffective assistance by mistakenly submitting medical examination to USCIS rather than immigration court. Special thanks to IRAC. (Matter of Samuels-Foster, 7/30/20) AILA Doc. No. 21042002
Unpublished BIA decision finds IJ improperly drew falsus in uno, falsus in omnibus inference where sole false testimony related to whether respondent rather than his prior attorney signed his adjustment application. Special thanks to IRAC. (Matter of Luwaga, 7/31/20) AILA Doc. No. 21042001
Law360: Immigration courts were not required to help a Mexican immigrant refine his definition of the persecuted group he identified with in order to prevent his deportation, a Third Circuit panel has ruled.
Denying the petition for review, the court held that INA §237(a)(2)(B), which provides for removal of a noncitizen convicted of a violation of any law or regulation of a state relating to a controlled substance, contains no pardon waiver. (Aristy-Rosa v. Att’y Gen., 3/16/21) AILA Doc. No. 21041934
The court held that the petitioner was removable because his Minnesota conviction for possession of khat related to a federal controlled substance pursuant to INA §237(a)(2)(B)(i), and found that the petitioner had failed to prove that he was entitled to asylum. (Ahmed v. Garland, 4/8/21) AILA Doc. No. 21041935
Where BIA had denied asylum to petitioner based on a finding that serious reasons exist to believe he committed a serious nonpolitical crime, the court held that the “serious reasons for believing” standard requires a finding of probable cause. (Barahona v. Garland, 2/3/21, amended 4/15/21) AILA Doc. No. 21021636
The court held that the BIA did not err in determining that petitioner’s Iowa conviction for possession of a controlled substance disqualified him from relief in the form of cancellation of removal, because the Iowa statute is divisible as to marijuana offenses. (Arroyo v. Garland, 4/14/21) AILA Doc. No. 21041937
The court upheld the district court’s grant of a preliminary injunction against the implementation of a DHS/DOJ joint interim final rule that categorically denies asylum to individuals arriving at the U.S./Mexico border. (East Bay Sanctuary Covenant v. Garland, 7/6/20, amended 4/8/21) AILA Doc. No. 20070636
Granting the petition for review and remanding, the court held that the IJ’s decision to affirm the asylum officer’s adverse reasonable fear of torture determination as to the Honduran petitioner was not supported by substantial evidence. (Alvarado-Herrera v. Garland, 4/13/21)
Law360: The Eleventh Circuit has revived a Gambian man’s bid to remain in the U.S., chiding the Board of Immigration Appeals for misrepresenting how attorney misconduct, including an alleged forgery, skewed his removal proceedings.
Law360: Texas’ attorney general said in a federal court complaint Thursday that the Biden administration was not abiding by Trump-era U.S. Centers for Disease Control and Prevention rules meant to reduce the spread of COVID-19 by restricting illegal immigration.
Law360: U.S. Immigration and Customs Enforcement must hand over records related to its Alternatives to Detention program by May 3, in response to a lawsuit in New York federal court seeking information on how the agency surveils immigrants in its supervision.
DHS announced that ICE has rescinded two delegation orders related to the collection of civil financial penalties for noncitizens who fail to depart the United States. ICE had initiated enforcement of civil penalties in 2018; as of January 20, 2021, ICE ceased issuing these fines.
DHS notice of the suspension of certain requirements governing employment for F-1 students from Venezuela who are experiencing severe economic hardship as a result of the humanitarian crisis in Venezuela. (86 FR 21328, 4/22/21)
DHS notice of the suspension of certain requirements governing employment for F-1 students from Syria who are experiencing severe economic hardship as a result of the civil unrest in Syria. (86 FR 21333, 4/22/21)
Troy Miller, senior official performing the duties of the commissioner, issued a memo establishing guidance on the preferred use of immigration terminology within the federal government. The memo provides a table listing prior terminology and the new terminology CBP will use moving forward.
Sierra Leone: Support for former victims of trafficking (AFR2021-01)
Namibia: Situation for people from Ovahimba tribe and treatment for diabetes (AFR2020-30)
Ecuador: Indigenous female children’s protection from domestic abuse and harassment, and young Indigenous mothers’ access to education and employment opportunities (AME2021-03)
India: Harassment and violence against Christians (ASI2021-01)
Ethiopia: Discrimination and violence against Eritrean children in Ethiopia (MEN2021-03)
Azerbaïdjan : Etat des lieux sur la corruption, l’opposition et les rapatriés (CIS2021-01)
The failure of President Biden, Judge Garland, and Secretary Mayorkas to end the grotesque abuse of asylum seekers at our borders will be a blot on their records. Human lives are at stake!
And establishing a due process compliant, robust, generous asylum adjudication system in the U.S. is not “rocket science.” With better, more courageous leadership, and different judges (a number of whom are already on the EOIR payroll), and a partnership with NGOs and organizations who know asylum law, a much better system could have been up and functioning well before now!
Just one word to describe the performance so far: INEXCUSABLE!
“Border Message” By Steve Sack Reproduced under licenseSo far, Biden, Garland, & Mayorkas appear to share this Trump/Miller view of the humanity of brown-skinned asylum seekers! (AP Photo/Julia Le Duc)
“Jim Crow” is still alive and well @ EOIR. To date, Judge Garland & his team seem to think that the rest of us won’t notice what’s happening in “his” Immigration Courts and how it undermines every aspect of his claim to be restoring faith in the DOJ and the American justice system. A progressively-oriented, independent, expert Immigration Judiciary is a prerequisite for finally achieving racial justice in 21st Century America. So far, Judge Garland has NOT enunciated any plan to “get there,” nor has he even publicly acknowledged the many disgraceful problems plaguing EOIR!
This article will contribute to immigration equal protection jurisprudential discussions by highlighting the way in which the plenary power in immigration equal protection cases creates a barrier parallel to the intent doctrine—both prohibit curtailment of government action resulting in racialized harm. The scant recognition of the double duty done by plenary power and the intent doctrine reflects the banality of what may appear as a mere redundancy at first glance. However, the insidiousness of the double-barrier all but ensures that equal protection challenges to facially race-neutral immigration laws with disparate impact will fail. Plenary power is effectively duplicative of the intent doctrine because the intent doctrine already results in great deference to lawmakers.
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Read the full abstract at the link.
Unquestionably, immigration jurisprudence has intentionally misread the due process and equal protection clauses to achieve racist immigration policies. Getting rid of these perversions — analogous to the legal and judicial gobbledegook used by White men to make the 14th and 15th Amendments (and to a large extent, the 13th Amendment) “dead letters” for African Americans following Reconstruction — isn’t a matter of complicated legal thinking. It’s a matter of better Federal Judges and better legislators. And, the mess @EOIR — our Immigration “Courts” — is the best and most logical place to begin the long overdue task of instituting constitutional compliance and equal justice for all.
To date, Judge Garland’s failure to demonstrate a commitment to eliminating unconstitutional racism and misogyny (not to mention poor quality decision-making which also disproportionately affects individuals and communities of color) in his Immigration “Courts” threatens to destroy our legal system and “kneecap” American democracy.
We are in the perilous position we are today because past Administrations, to the extent they have even tried to address systemic racism (obviously, the Trump Administration sought the exact opposite —to deepen, protect, and promote racism and hate), have intentionally or negligently ignored the clear link between immigration law and racism in the rest of our legal system.
Professor Erin Barbato Director, Immigrant Justice Clinic UW Law Photo source: UW Law
ARD, BARBATO, AND COLLINS NAMED UW LAW SCHOOL TEACHERS OF THE YEAR
Each spring, UW Law School celebrates excellence in teaching through its Teacher of the Year awards. UW Law School’s annual teaching awards demonstrate the value placed on excellent teaching. Our faculty engage and inspire UW Law students through thoughtful pedagogy, and we are proud to honor them for this important work.
The honorees for outstanding classroom, clinical and adjunct instruction in 2020 include:
BJ Ard, Classroom Teacher of the Year. BJ Ard is an Assistant Professor of Law whose teaching and scholarship focusing on intellectual property, privacy, and technology. Ard earned his law degree and doctorate from Yale in 2017. He joined the UW Law School in 2018.
Erin M. Barbato, Clinical Teacher of the Year. Barbato is the director of UW Law School’s Immigrant Justice Clinic (IJC) and a Clinical Professor of Law. In 2013, she joined the Law School as an adjunct professor with a focus on immigration law before becoming the IJC director in 2018. Under her supervision, students learn how to represent individuals in removal proceedings and with humanitarian-based immigration relief. Barbato received her law degree from Marquette University Law School in 2006.
Susan Collins, Adjunct Teacher of the Year. Collins teaches an introduction for estate planning and drafting. Collins earned her law degree in 1995, graduating cum laude from UW Law. Collins worked for Associated Bank as a senior vice president and fiduciary law senior counsel until 2018.
Congratulations, Erin, my friend and colleague So very proud of you and all you have achieved at my alma mater. “Badgers changing the world, for the better!”
Bucky Badger UW Mascot
This is a “Big Deal!” As Erin tells me:
The award is based on votes and comments from students. It means a lot to me as I think it reflects that the students of UW Law recognize the importance of representing people in removal proceedings. They are future due process warriors.
Erin has been an inspirational role model for a new generation of law students, taking groups to the border to save lives, engaging in “retail level” litigation in Immigration Court that advances justice in the most meaningful way possible, and publicizing the seminal role that immigrant justice plays in social justice in America. She is also a thinker and scholar who sees due process, human rights, and racial justice issues with a clarity lacking in all too many of today’s out of touch politicians, policy makers, and judges.
Erin also was a guest lecturer in my Immigration Law & Policy course course at Georgetown Law. Her “stories and pictures from the border” brought home to my students the gross violations of human and constitutional rights going on in our dysfunctional Immigration Courts on a daily basis.
Erin is one of the many “practical scholars” out there who should be “on the inside” at EOIR, DHS, and the Article III Courts!
Suzanne Monyak Senior Reporter, Immigration
Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration JudgesKnightess of the Round Table
Garland has yet to indicate whether he will rescind several decisions penned by attorneys general under the previous administration. In the last four years, Trump officials limited asylum eligibility for those fleeing violence by private actors, like gang members and domestic partners, and immigration judges’ ability to maintain their own dockets.
“There’s no reason that Attorney General Garland hasn’t done a thorough review of the attorney general certifications from the last administration,” said Susan Roy, a former immigration judge. “He should rescind any of them which he can. He has the authority to do that.”
. . . .
The Biden administration has also inherited a lengthy immigration court backlog — containing roughly 1.3 million cases — that have kept immigrants facing deportation and asylum-seekers waiting years for decisions in their cases.
The Biden administration has recognized that immigration judges may be key to processing these claims quickly and efficiently. In a preview of its budget request released earlier this month, the White House proposed increasing funding for the Justice Department’s immigration court agency from $734 million to $891 million to hire 100 new immigration judges.
Immigrant advocates and former judges say freeing the immigration court system from political influences is also critical to this effort.
“Without a union, there’s no way to protect judges against political ideologies of a given administration,” Roy said.
While judicial independence has “always been a concern” with a court system housed within a federal agency, “rarely has that been as problematic as it was under the Trump administration,” she said.
. . . .
Some advocates also want to see immigration courts be removed entirely from the DOJ and made an independent court system. The issue is on the agenda for the American Immigration Lawyers Association’s virtual “day of action” on April 22.
Roy, the incoming chair of AILA’s New Jersey chapter, acknowledged that Garland faces a number of competing priorities outside of the immigration courts. But she urged the administration against letting the system fall to the wayside.
“The immigration court is a subject that needs immediate attention,” she said. “Otherwise, it’s going to collapse under its own weight.”
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Thanks, Sue!
Today’s Immigration Courts, hotbeds of inefficiency, worst practices, racial bias, misogyny, and unnecessary backlogs, undermine everything that Biden and Harris campaigned on. They also make Judge Garland’s pledge to return justice and independenceto the Department of Justice look like a farce.
You simply can’t be responsible for something as totally broken, biased, and due process denying as the current Immigration Courts and have ANY shred of credibility on racial justice, independence, and “good government!”
“Eyore In Distress” “Why won’t Judge Garland help me get back on my feet? I”m so tired of being ‘belly up!’”“We were waiting for Judge Garland to free us from this chamber designed by Sessions, Miller, and Barr? Why is Garland diddling as we suffer and die?” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Judge Garland’s concept of “justice” for refugee women and people of color seems a little out of touch — anti-asylum, misogynistic, anti-due process, xenophobic, racially charged precedents remain in place; regressive, unqualified judges on the bench; “worst practices” continue to flourish; 1.3 million case backlog builds; & He hasn’t spoken to the naij:
Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160He doesn’t look like Jeff “Gonzo Apocalypto” Sessions or “Billy the Bigot” Barr, but does he think like them? Or does he just not care about the lives of people of color at the border and in his Immigration “Courts” that aren’t “courts” at all by any Constitutional or rational standard? Has he ever studied “The St. Louis Incident?” He’s basically repeating it! Official White House Photo Public Realm
Biden campaigned, and won, on a very different message.
He promised to “restore the soul of America,” which he argued included welcoming the stranger. It was a message he had promoted for decades. Upon taking office, he declared plans to roll back the Miller/Trump immigration agenda. Among them: raising the refugee admissions ceiling from 15,000 to 62,500.
Biden’s rationale for this policy was partly moral, partly practical. Unlike their predecessors, Biden and his immigration advisers recognized that creating more pathways for people to come to the United States legally would actually promote “law and order” and alleviate stress on the immigration system. In a February report to Congress, the State Department said one reason to “increase the overall refugee admissions number” was to “facilitate safe and orderly migration and access to international protection and avert a humanitarian crisis at the U.S. southern border.”
Then, inexplicably, Biden got cold feet.
He delayed signing the paperwork necessary to put his policy into effect, leaving hundreds of vetted refugees in limbo. White House spokespeople could not explain the holdup. Reports leaked that Biden worried about the “optics” of letting in more refugees amid a surge of migration at the southern border, even though he knew the two issues were unrelated.
In other words: Biden seemed to concede that Miller’s propaganda had worked and that the public might view all immigrants as a dangerous, undifferentiated horde of intruders the new administration was failing to contain.
Rather than fighting the confusion and fear Miller had sown, Biden caved. Friday’s White House announcement even invoked the same weaselly excuse Trump officials had used to justify their record-low cap — that it was necessitated by the (irrelevant) border surge.
On Twitter, Miller took a victory lap. He urged Biden to reduce refugee admissions to zero, which he declared would be the “most popular” thing to do.
But Biden and Miller both misread the politics. Biden’s announcement drew immediate, widespread backlash. Perhaps unsurprisingly: Despite Team Trump’s relentless smears of refugees and other immigrants, polls show the public has grown more pro-immigrant in recent years — with support reaching record highs.
Within hours of its initial announcement Friday, the White House backtracked, saying a higher refugee ceiling would be forthcoming. Officials refused to specify the new level and will not commit to the 62,500 Biden previously promised. Biden is leaving his options open — perhaps in case Miller’s political assessment turns out to be right.
It’s not clear why Biden has been so timid. As Biden himself has persuasively argued, admitting more refugees is in the country’s moral and national security interests. What’s more, he was elected on a popular mandate to do it. The White House must exorcise the ghost of Stephen Miller and deliver the agenda that our new, soul-restoring president promised.
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Catherine Rampell Opinion Columnist Washington Post
Thanks, Catherine, for continuing to speak out about the Biden Administration’s ill-informed approach to immigration, racial justice, and human rights — particularly refugee issues! You can read the rest of Catherine’s op-ed at the link.
No such “Victory Laps” for those who worked to get Biden, Harris, Garland, and Mayorkas their jobs!
As I’ve pointed out, Miller’s execs and “judges” remain in key positions at Garland’s EOIR as our Immigration Courts continue to fail to provide due process while institutionalizing racial injustice in America, just as Stephen Miller planned it.
Indeed, the racist, misogynist, xenophobic, “worst practices” precedents issued by Trump’s AGs remain in effect under Garland. And, the borders remain closed to most legal asylum seekers in violation of our Constitution, the statute, common sense, and simple human decency.
Equally discouraging is Judge Garland’s apparent indifference to the unparalleled opportunity given him to create a progressive Immigration Judiciary that would actually reflect the humane, due process ideals upon which Biden and Harris campaigned and won the election. Additionally, he could also bring diversity, expertise, and independent progressive thinking to a currently non-diverse judiciary that is often disconnected from both the laws they administer and the stakeholder communities most affected by their decisions, conduct, and attitudes.
I have said many times that Immigration Judges “teach from the bench” every day. The messages being sent and lessons being taught to many of those seeking justice and to their lawyers, basically the “heart and soul” of the next generation of our profession, do not reflect well on the Biden Administration or Judge Garland, nor will they be treated kindly by legal and social historians.
That’s a real shame, because once squandered, the ability to send positive messages about equal justice for all, due process, and respect for human dignity is not easily, if ever, regained!Every case is an opportunity to send a better message; every day the current mess remains in place in our Immigration Courts is a missed opportunity for Judge Garland.
So far, human rights and immigrants’ advocates groups are in a familiar position in a Dem Administration — locked out of the power structure, largely ignored, and treated with indifference bordering on contempt. Strange way to treat those who helped you gain power in the first place!
The good news: the brainpower and talent to force positive change out of incompetent, valueless, and intransigent bureaucracies is still out here in the NDPA. We’ll just have to continue to take the fight to the “powers that be” — in the legal, political, educational, and public opinion arenas until job gets done!
TIJUANA—In the weeks after Joe Biden’s inauguration, migrants across the city of Tijuana began to leave the various shelters and apartments where they’d been living in favor of an open-air encampment just north of the city’s center. It’s not a cheerful place; people have little to eat and there’s no running water. But it has a crucial location: It’s right next to the El Chaparral Port of Entry, the nearest legal crossing into the United States. Anticipating that the doors to the U.S. might soon open, they set up at the very foot of the country’s entrance.
In February, Rosemeri, an asylum seeker from El Salvador, says she pitched a tarp next to just two others. By early March, it had grown into a shantytown of more than 1,000 people, and today as many as 2,000 migrants — most of them families with children — brave the elements each day and night. Together, the makeshift community decided on a name for the tent city: La Esperanza, The Hope.
Rosemeri, like most people in the camp, is not a new arrival to Tijuana. She left her home in El Salvador in 2019, fleeing threats against her life from the gang that controls her neighborhood. Her plan was to request asylum in the U.S. But by the time she arrived at the southern border last April, a month into the Covid pandemic, it had been closed indefinitely to asylum seekers by a Trump administration public health order. Since then, she and tens of thousands of others have had no choice but to wait in northern Mexico, shuffling from shelter to shelter for months, hoping for a change in policy.
“We are Salvadorans, Hondurans, Haitians, Cubans, Mexicans, Nicaraguans,” she told me of the residents of La Esperanza. “We are here, all of us, waiting.”
The early months of Biden’s administration have been shadowed by a major increase in immigration, with border agents encountering more than 100,000 people attempting to cross unauthorized in February and more than 170,000 in March, a 15-year high. Critics on the right blame the president’s welcoming rhetoric, saying that after Donald Trump’s hard-line tack toward the border, it’s no wonder migrants are rushing in under supposedly softer leadership. But migrants themselves have a very different view: The issue isn’t Biden extending a hand; it’s that he hasn’t figured out what he wants to do — and has kept the legal pathway closed in the meantime.
Despite promising a new approach, Biden has left the effective asylum ban in place, with few exceptions. Realizing they have no prospect for legal entry into the U.S. anytime soon, many migrants like the ones here, stuck in Tijuana without a safe home to return to, are making the painful decision to try to cross the border outside the proper channels.
“We want to do this the right way,” insists Rosemeri.
The problem for people like her is that there is currently no “right way.” The Biden administration says this is all a work in progress. “We’re in the middle of a global pandemic, and it’s going to take time to rebuild robust asylum processing infrastructure at our borders,” an administration spokesperson told me in an interview last month. The White House did not respond to specific questions for this story.
Republicans in Washington have been saying Biden is too lenient, but people on the ground in Mexico suggest the root of the recent rise in unauthorized border crossings is actually the president’s prolonged maintenance of the most restrictive of his predecessor’s policies: the near-complete cutting off of asylum, a form of legal immigration.
. . . .
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Read Jack’s much longer full article at the link. It’s one of the few accurate, insightful pieces of reporting I’ve seen on the “overhyped yet generally mis-understood” human catastrophe at continuing to unfold at our southern border.
The problem starts, but by no means ends, with Judge Garland’s mind-boggling failure to grasp and take steps to end the deadly clown show @ EOIR! You can’t re-establish the rule of law and enforce the Constitution with inept holdover bureaucrats and unqualified Trump-Miller appellate judges in charge of the critical “retail level” of the American justice system!
Get some real, expert judges, competent judicial administrators, and fearless legal leadership, dedicated to human rights, fundamental fairness, and due process for all, into key positions @ EOIR before this system gets any further out of control, creates additional disorder throughout our legal system, and destroys more human lives!
The folks who can start fixing this are out there. Some of them (sitting Immigration Judges like Judge Dana Leigh Marks, Judge Amiena Khan, Judge Noel Brennan, Judge, Janette Allen, Judge Dorothy Harbeck, Judge Mimi Tsankov, and others) are even on the payroll outside the DC area. Many others in the private sector should already have been vetted and on the job solving problems, at least on a temporary basis!
(Let’s start, but not end, “Project Restore Due Process & Asylum Integrity,” with, say, Dean Kevin Johnson, Associate Dean Jaya Ramji-Nogales, Professor Karen Musalo, Michelle Mendez, Professor Ingrid Eagly, Marielena Hincappie, Lauren Wyatt, Professor Phil Schrag, Professor Andy Schoenholtz, Heidi Altman, Professor Debbie Anker, Judge (Ret.) Ilyce Shugall, Judge (Ret.) Rebecca Jamil, Professor Michele Pistone, Claudia Valenzuela, Claudia Cubas, Professor Jill Family, Professor Raquel Aldana, Professor Mary Holper, Liz Gibson, Greg Chen, Professor Peter Moskowitz, Laura Lynch, Dree Collopy, Professor David Baluarte, Professor Maureen Sweeney, Professor Lenni Benson, Eleanor Acer, Adina Appelbaum, Professor Elora Mukherjee, Professor Erin Barbato, Aaron Reichlin-Melnick, Jason “The Asylumist” Dzubow, Professor Alberto Benitez, Professor Paulina Vera, Professor Cori Alonso Yoder, Professor Kari Hong, Professor Denise Gilman, Tess Hellgren, Simon Sandoval-Moshenberg, Professor Laurie Ball Cooper, Associate Dean Jayesh Rashod, Ben Winograd, Associate Dean David Baluarte, and work from there! All of them are head, shoulders, knees, and toes above the current EOIR senior management and Appellate Judges on the BIA.)
Recently, I made these points in speaking to a group of retired lawyers who had no prior background in immigration law. At the end, one of them said: “The fix you described doesn’t sound that difficult. Why hasn’t it happened?” BINGO!
It’s not rocket science! But apparently “above the pay grade” for “Team Biden!”That’s a shame for American justice, any international leadership capability we might still have on this issue, and, most of all, for the vulnerable human beings that Biden, Mayorkas, and Garland have left “twisting in the wind.”
The Biden/Garland Image of Legal Asylum Seekers & Their Supporters” “Twisted by the Wind” By Ron Strathdee
I can assure the Biden folks that continuing the Trump/Miller policies and leaving their “plants and toadies” in place won’t win a single GOP vote — on anything! Truth, facts, the law, and human decency play no role in today’s GOP. You could shoot everyone dead at the border (as opposed to sending them back to Mexico and the Northern Triangle to die) and magamorons like Cruz, Hawley, and Cotton will still claim that you have an “open borders policy.”
However, your lack of positive action on asylum and refugee issues will continue to anger and betray your own supporters and mobilize them to oppose your “tone-deaf” and ineffectual policies, in court, in the media, and in politics. Doesn’t sound like a smart move to me!
Here’s the real irony. Liberal House Dems have invested in a DOA legislative effort (already “shot down” by Speaker Pelosi) to expand the Supremes. Meanwhile, over at the DOJ,Judge Garland is squandering his chance to completely rebuild and refocus the nearly 600 strong (now totally dysfunctional) Immigration Judiciary into something really special (in a good, rather than an evil, way).
That happens to be the most powerful and readily achievable way of creating a progressive, due process oriented, intellectually dominant, expert “model judiciary” that will remake the “retail level” of American justice, save human lives, advance correct practical, sensible applications of the law and the Constitution that will actually save lives, teach “best practices,” promote racial justice, and change the face of American justice for the better.
Better judges for a better America! It starts with the foundational “retail level” of our justice system — the Immigration Courts. Unlike packing the Supremes, it’s realistically achievable with courageous focused leadership (not the current failed group and indifferent leadership from Judge Garland.)
“Personnel is policy” — big time! Too bad for all of us that Judge Garland doesn’t seem to “get it.”
In that, his “grasp of the obvious” seems to be several levels below that of Trump, Miller, the Federalist Society, the Heritage Foundation, and Mitch McConnell. Think what you might, that gang has run circles around Dem politicos for years. Jeff “Gonzo Apocalypto” Sessions and Billy Barr “got” the importance of expanding the BIA and the Immigration Judiciary and “packing” them with many unqualified anti-asylum restrictionists who would do their bidding in undermining and destroying American justice and “Dred Scottifying” the “other,” particularly those of color, with a solid dose of mind-numbing misogyny thrown in.
To date, (with a few exceptions, like removing former Director James McHenry) Garland has failed to remove or transfer these unqualified jurists (and incompetent administrators) and start bringing in better ones, even though he has the available tools to have commenced by now. Indeed, several Miller cronies are still wandering around the Falls Church Tower in key positions, while other members of the Trump Administration’s “Asylum Denial Club” continue to crank out nativist injustice at the BIA. A number are notorious for their overtly hostile attitudes toward female asylum seekers of color and their attorneys. Yet, asylum seekers and their lawyers continue to suffer unjust and unprofessional treatment at EOIR while their abusers continue unabated in Garland’s name!
Aggressively “removing the deadwood” also sends strong messages throughout the system that the “dehumanize, deny, and deport culture” ingrained and actively encouraged at EOIR over the past four year is over!
Meanwhile, over at the broken SG’s Office, Garland is getting ready to defend one of the stupidest, most legally inane, and insanely counterproductive from a policy standpoint positions in recent memory (and that’s saying something given the performance of the Trump SG) in Sanchez v. Mayorkas . The Garland DOJ is actually committing “unforced error” by defending a clearly wrong interpretation of the TPS statute that will unnecessarily screw long-time law-abiding TPS holders, many of them spouses of U.S. citizens, who could otherwise qualify for legal immigration under current law. Shafting the VERY INDIVIDUALS the Biden Administration pledged to help and keeping them in “eternal legal limbo” while unnecessarily outraging their lawyers and potential allies. What sense does that make? If “Team Garland” can’t recognize and pick the “low hanging fruit” in the battle to restore legality and sanity to our immigration system, it’s going to be a long four years.
Professor David Martin, one of the top minds in American law, in any field, and a “vet” of past Dem Administrations, laid out the possible solutions in a crystal clear manner in Just Security. But, apparently when you’re caught up in running “Amateur Night at the Bijou” you can’t be bothered to listen to the experts who have “been there before” and learned from their experiences!
Judge Garland is recruiting folks for his SG’s Office who will continue to make the same wrong-headed arguments on immigration cases that the past two Administrations did. No Immigration or human rights expertise necessary. Check your common sense and humanity at the door. PHOTO: Thomas Hawk Creative Commons
This could be our “last clear chance” to save American democracy! Right now, it’s going to waste! That’s something that should outrage and motivate all of us who believe that “due process for all persons” means exactly what it says!
Congrats to Professors Benitez and Vera and GW Law!
“Is there some problem here?” “Random violence?” “Mere common crime?” “Reasonable state protection?” Does Attorney General Merrick B. Garland share the views of one of his predecessors, Jeff “Gonzo Apocalypto” Sessions that lives of of brown-skinned refugee women don’t matter? Is that why Garland hasn’t revoked Matter of A-B-? Is that why Trump/Miller “plants” with notorious records of anti-asylum misogyny directed at Central American women continue to serve as “Appellate Judges” on Garland’s BIA even as refugee women continue to be turned back to “death without due process” at our borders? Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
If YOU were a refugee woman pleading for YOUR LIFE in Immigration Court, who would YOU want as the Judge?
This Stephen Miller clone holdover from the Trump Administration:
“Appellate Immigration Judge” approved by Stephen Miller to find the “final solution” for female refugees of color Image: Hernan Fednan, Creative Commons License
Or these internationally-renowned practical scholar-experts in gender based asylum:
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings LawProfessor Deborah Anker Director, Harvard Law Immigration & Refugee Clinic PHOTO: Harvard Law
This might also be a good time to watch (or re-watch) the following video short featuring the “real” Ms. A-B- (and her lawyers) who was arbitrarily targeted by White Nationalist “Gonzo Apocalypto” Sessions to receive an unwarranted “death sentence” in violation of due process!
So why is Judge Garland retaining the “Trump-Miller-Sessions-Barr BIA” rather than replacing them with much better qualified immigration/human rights experts dedicated to due process like, for example, Alberto Benitez and Paulina Vera?
👍🏼🇺🇸⚖️🗽Due Process For Refugee Women! Tell Judge Garland To End Institutionalized Misogyny @ EOIR!☠️🤮⚰️👎🏻Remove Anti-Asylum Zealots & Those Unwilling To Stand Up For Due Process For All Asylum Seekers From The BIA! Appoint Real Judges To Restore Due Process!
A longtime Nassau County, New York, district court judge and New York Supreme Court justice, Feuerstein was appointed to the federal bench by former President George W. Bush in 2003 and was serving as a judge in the Eastern District of New York in Central Islip. She and her mother, Judge Annette Elstein, who died in 2020, made history as the first mother and daughter in the United States to serve as judges as the same time.
At the time of her death, Feuerstein was presiding over a high-profile murder-for-hire case in which a former New York Police Department officer is accused of hiring a hitman to kill her estranged husband. It’s unclear how Feuerstein’s death will impact the case.
Mark Lesko, the acting U.S. attorney for the Eastern District of New York, issued a statement expressing condolences to Feuerstein’s family.
“As we mourn her tragic death,” Lesko said, “we also remember Judge Feuerstein’s unwavering commitment to justice and service to the people of our district and our nation.”
ABC News’ Benjamin Stein contributed to this report.
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Judge Feuerstein’s mother, the late Judge Annette Elstein of the N.Y. Immigration Court was deeply beloved for her legal acumen, energy, kindness, and compassion by all who knew her, appeared before her, or had the privilege of learning from her. Judge Feuerstein was 75 years old.
The hearts of all of us in the Round Table of Former Immigration Judges go out to Judge Feuerstein’s family.
Meanwhile, government watchdog groups expressed concerns over two people whose initial conversion requests had since been approved.
One such conversion was that of Carl Risch, whose October conversion request to be the deputy director, the No. 2 job, at the Executive Office for Immigration Review within the Department of Justice (a civil service job), was approved in December. Risch had been an assistant secretary for consular affairs at the State Department, a political job. His new job came with a $10,000 raise.
“It’s a red flag when there are multiple people being converted to jobs at a single entity. It really raises an even larger concern,” Stier, of the Partnership for Public Service, said. “The process is supposed to be that a political appointee in no way has a leg up on the competition for a career job, but when you see multiple go to the same agency, you really have to wonder how it can be possible that the best qualified individuals are not once, but multiple times, people who are political appointees.”
Risch did not respond to multiple requests for comment. EOIR spokeswoman Kathryn Mattingly said Risch went through the standard pre-hiring review process with the OPM and that the agency had approved his new position.
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Read the full article at the link.
So, the folks who saved due process and stood up for the Constitution and racial justice while Judge Garland was enjoying his cushy ivory tower job at the D.C. Circuit over the past four years remain on the outside, twisting in the wind ⚰️ while their clients and colleagues suffer daily abuse in “Garland’s Star Chambers!” Nice touch!
Meanwhile, Garland hands out the big bucks and a hideout for a notoriously unqualified Trump/Miller political hack imported from the DOS. What does Risch know about immigrant justice or court management? Nothing? Oh, but why is that a problem at EOIR?
He occupies what is supposed to be a key senior management position in America’s most dysfunctional “court system” — running a simply astounding 1.3 million (known) case, largely self-created backlog, grinding out sloppy, unprofessional, biased opinions regularly rejected by even conservative Courts of Appeals, setting horrible anti-immigrant precedents and endangering the lives, health, and safety of those who are caught up in EOIR’s continuing White Nationalist cesspool of cruelty, mismanagement, and gross incompetence?
Judge Garland: “Go faster Carl and David (Garland BIA Chair Wetmore), see how much it takes to make this worthless respondent scream! Remember what your mentor Stephen Miller taught you about the lives and rights of ‘the other.’ Why do you think I’m paying you the ‘big bucks’ and letting you ‘burrow in’ if not to punish and deter those who dare seek due process and humane treatment in MY wholly-owned Star Chambers! I couldn’t have done this at the DC Circuit, but here there are NO RULES, except those we make up for our own benefit, and I aim to keep it that way!”
Is it any wonder that immigrant justice and racial justice remain in free-fall under Biden and Garland?
Let’s lay it on the line! By now, Garland should have cancelled all the Trump-era precedents (“day 1 stuff”), cleaned house at EOIR HQ, and transferred the entire BIA to somewhere where they can inflict no more damage on the American legal system!
That would also have sent a powerful“signal” to the many Immigration Judges who have established “asylum free zones” in Immigration Courts throughout the U.S. over the past two Administrations that there will be a return of due process and fundamental fairness for asylum seekers and other immigrants at EOIR.
Judges can get with the program, start granting asylum and other protection as the law requires, thereby reducing backlogs the “old fashioned way” — consistent with due process and fundamental fairness. Or, they can ship out and sign up with Stephen Miller’s “Aryian Nation Legal Team” — where it appears that many of them would be more at home.
Garland should have brought in folks already on the payroll like Judges Dana Marks, Noel Brennan, & Amiena Khan, all experts in due process, judicial management, immigration, and human rights laws, all of whom have demonstrated true leadership, consistent courage, and independence throughout their distinguished careers, on at least a temporary basis to start restoring justice, rationality, and order in the Immigration Courts.
They would already have identified qualified sitting judges who know how to grant asylum to serve as Acting Appellate Judges at the BIA to start turning things around by enforcing due process and issuing precedents that advance, rather than retard, due process, fundamental, fairness, and judicial efficiency.
Meanwhile, they would be developing legitimate merit selection criteria to recruit and hire as judges practical experts who will fairly and efficiently apply due process and fundamental fairness to all asylum seekers and other respondents, regardless of race, color, or creed. These criteria could be used to recruit andhire a diverse progressive group of permanent Appellate Judges and Immigration Judges, to determine which “probationary IJs” should be retained, and eventually to re-compete all existing IJ positions to insure a real, diverse, independent, due-process focused, Immigration Judiciary comprised of the “best and brightest” American law has to offer!
Greg Chen (AILA) and Professor Peter Moskowitz (Cardozo Law) should be on the EOIR payroll implementing their very achievable program for drastically slashing the unnecessary backlog without stomping on anyone’s rights.
Garland should already have hired Professor Michele Pistone(Villanova Law, VIISTA) to develop quality, due process oriented training programs for everyone at EOIR.
Instead, Garland is bankrolling the current crew of proven incompetents, holdovers, hangers on, and Trump/Miller White Nationalists. In other words, he’s wasting our taxpayer money, destroying the lives and futures of the most vulnerable (and often most deserving) among us, undermining racial and social justice in America, and abusing and endangering the health and safety of members of the NDPA trying to bring some semblance of the rule of law and human decency into our disgustingly dysfunctional Immigration Courts.
Could it get any worse? How?
Think about this! Neo-Nazi Stephen Miller and his fellow White Nationalists apparently were so impressed with the effective legal work done by courageous immigration/human rights/due process advocates in blocking many parts of his racist authoritarian agenda — basically the New Due Process Army (“NDPA”) and its “Senior Fighting Division” The Round Table of Former Immigration Judges — that they are forming their very own neo-Nazi legal advocacy group to help GOP AGs stymie any attempt by the Biden Administration to promote racial justice, social justice, and immigrant justice.
Given the rather incompetent (not to mention ethically questionable) performance of many DOJ attorneysduring the Trump regime, Garland is going to need all the help he can get to fend off Miller and the GOP. Rather than enlisting members of the NDPA on his team, letting them solve problems, and actively soliciting their support and alliance on litigation, he is turning them into highly motivated opponents!
How dumb and counterproductive is that! Turn your would-be friends into enemies? Sounds like something only a tone-deaf Dem politico could pull off!
I’m not a politico. But, I do understand the necessity in politics, as in almost any field, of being able to distinguish your friends from your enemies. Perhaps, Judge Garland has spent so much time in the ivory tower that he has forgotten how to play the game out here in the real world.
I’ve been hanging around the Washington legal scene for almost 50 years now. In that time, I might have witnessed a more inept start by an Attorney General of either party. But, really, I can’t remember when!
🇺🇸⚖️🗽Due Process Forever! If the NDPA must take the fight to end ☠️⚰️ deadly “Clown Courts” 🤡 to Judge Garland, so be it!
“Oh no! Is Judge Garland really going to leave me in this position for the next four years?”
COURTSIDE EXCLUSIVE! — A FIRST, DISTURBING LOOK INSIDE “JUDGE GARLAND’S FAILED EOIR” –SOURCES CLAIM JUDGE’S APPROACH TO DUE PROCESS @ EOIR TIMID, INEFFECTIVE 🤮☠️ — HEARD IT THROUGH THE GRAPEVINE 🍇 – Judge Apparently Dissing Calls By Experts, Advocates For Bold, Common Sense Actions To Restore Due Process, & Promote Judicial Independence @ EOIR — Appears Ready To Allow Miller‘s White Nationalist “Plants,” Go Along To Get Along Judges, To Continue Mocking Due Process @ Dysfunctional Courts – Will Ex-Federal Judge Become Latest In Line Of Failed Dem AGs To Allow Institutionalized Racism, Misogyny, Anti-Asylum Attitudes, Mistreatment Of Migrants, & Administrative Chaos To Flourish In America’s Worst “Courts?”
By Paul Wickham Schmidt
Courtside Exclusive
April 9, 2021
Although the information is unverified, and the sources anonymous, Courtside has pieced together an emerging disturbing picture of Judge Garland’s “master plan” to make only cosmetic changes and allow the continued mistreatment of asylum seekers and unprofessional performance of many so-called “judges” in his Immigration Courts, generally known as America’s worst and most dysfunctional tribunals where life threatening institutionalized White Nationalism, sloppy work product, and lack of human rights expertise have become the order of the day.
As we know, DOJ quickly reassigned the former EOIR Director, James McHenry, notorious for “leading” the courts into total failure in pursuit of a White Nationalist political agenda. Apparently, the head of Administration and the “IT honcho” were also forced out at “The Tower.” Presumably, this has to do with EOIR’s remarkable two-decade failure to implement anything approaching a functional nationwide e-filing system.
That’s the “good news.” But, reportedly Judge Garland has little intention of removing the BIA Chairman or the Deputy Director. Sources say that unqualified (never served as a judge) Chief Immigration Judge Tracy Short, who was sent over from DHS Enforcement by the Trump folks, could be on thin ice. But, some in the know point out that he has the least authority to influence anything because he doesn’t actually adjudicate cases and must get approval from “on high” for any further policy changes.
The Deputy Director, Carl C. Risch, whom I’ve reported on before, was a Trump political appointee who “burrowed in” right at the end. According to sources Risch, a “bureaucratic refugee” from the State Department (the only kind of “refugee” recognized by the Trump regime) was mostly interested in finding a “soft landing on the public dole,” and not many people have paid attention to him.
The BIA Chair, David Wetmore, was a confidante of neo-Nazi White Nationalist Stephen Miller at the White House before he became an advisor to the Deputy A.G. and then the Chair. Reportedly, his appointment was driven by Miller and other senior Trump people.
Potentially, in a competent system, the BIA Chair (Chief Appellate Judge) would be one of the most powerful and influential Federal Judges in America, short of the Supremes. Wetmore has supposedly politicized everything. Some say that with his “probationary period” expiring next month, he’s just trying to “hang on.”
DOJ leadership, therefore, could and certainly should remove him in his probationary period with no repercussions. However, Dem incompetence at EOIR and elsewhere in DOJ is legendary when it comes to making such bold personnel moves that, by contrast, are the “bread and butter” of the process by which GOP Administrations seize control of the bureaucracy for their political aims. Dem Administrations all to often appear more than happy to leave GOP “plants, burrowers, and holdovers” in key positions while leaving human rights experts and their own supporters “out in the cold.”
There are also rumors that DOJ has prepared a “100-page plan” for EOIR. That, in of itself, is both interesting and disturbing in light of the glaring absence of any known immigration/human rights expert with intimate knowledge of the dysfunction at the Immigration Courts and how to fix it at DOJ Headquarters downtown. As I’ve mentioned before, the few “DOJ insiders” qualified to lead such a project are some field Immigration Judges, most associated with the NAIJ.
Reportedly, “the plan” has some “good stuff” including free counsel for unaccompanied children. But it doesn’t call for what’s really needed — independent courts!
Nor is it apparent that the Garland team intends to treat the Immigration Courts as “real courts” and to appoint the qualified, diverse, expert judiciary necessary to end institutionalized racism and “Dred Scottification” in the American justice system.
This is likely to leave many of those talented and dedicated lawyers who led the defense against the degradation and dehumanization of women and people of color in the Immigration Courts over the past four years fuming! I’ve said it before, it’s a strange way for a supposedly progressive Administration to treat those who should be their staunchest allies with the potential to solve problems others can’t!
Judge Garland appears determined to repeat the deadly mistakes of past Dem Administrations by leaving the best, most powerful, and most achievable opportunity for reforming the Federal Judiciary on the table yet again. He will also neuter and discredit his plans for equal justice and racial justice before even getting them out of the box.
Some report that advocacy groups might temper their calls for judicial independence and a better qualified judiciary at EOIR to avoid criticizing the new Administration. Sadly, that would also be a huge mistake, repeating past catastrophic failures!
I’ve seldom heard or witnessed a bigger “crock” than “revolution by evolution.” Revolution comes from kicking tail, taking names, and bold aggressive due process enhancing actions. For Pete’s sake, Miller and Sessions understood the power of decisive action! Are they really that much smarter and more motivated than the Dems? Sadly, it appears so!
Last time, I watched from the “inside” as the Obama Administration left the immigration advocacy/human rights community “standing at the station” while the train pulled out, with mostly the wrong engineers at the controls. It was painful. It might be even more painful watching it happen again, despite all the warnings from those of us in the NDPA!
If an independent EOIR is ever going to happen it must be now! By the end of this year, it likely will be too late. The cost in human lives, frustration, and squandered potential for a better America and a better world will be incalculable.
Unhappily, those of us who had hoped to litigate and criticize less and help more appear destined for another four years of fighting an intransigent and tone-deaf Administration from the outside.
My three recommendations:
1) Those working on Article I better “get cracking,” because Judge Garland doesn’t appear to be interested in meaningful fixes at EOIR.
2) The human rights community had better reload and redeploy the “litigation artillery.” Because it looks to me like the only way of getting the Garland DOJ to address the festering problems undermining justice in America will be by beating them in court, over and over, until their “star chambers” finally collapse in total chaos.
3) Keep documenting the “lack of justice at Justice” — make sure that Judge Garland and his team “own” their failure to take seriously immigrant justice in the Immigration Courts and their disrespect for human rights experts who should be running and staffing our Immigration Courts!
Sure, it’s all anonymous and unverifiable. But, it sounds eerily similar to the arrogant incompetence with which the Obama Administration failed to institute achievable reforms in the Immigration Court system. So, I give it credence.
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever!
“Oh, goody! I hear Judge Garland is going to keep me at EOIR! I can’t wait to tell my buddy Gauleiter Miller that the slaughter of innocents will continue!” Image: Hernan Fednan, Creative Commons License
Is this Judge Merrick Garland’s Vision Of Justice For Refugee Women @ EOIR? If not, what’s he doing about it? Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsJamie Gorelick American Lawyer & Public Servant PHOTO: Creative CommonsLayli Miller-Muro Founder & Executive Director, Tahirih Justice Center PHOTO: Creative Commons
Jamie Gorelick is a partner at Wilmer Hale. Layli Miller-Muro is founder and CEO of the Tahirih Justice Center, a nonprofit that serves immigrant survivors of gender-based violence. Both were involved in Fauziya Kassindja’s asylum case in 1996: Gorelick was deputy attorney general during the Clinton administration and Miller-Muro was Kassindja’s student legal counsel, representing her in immigration court and at the Board of Immigration Appeals.
With the issue of migration in the news again, a glaring omission in U.S. asylum law should get more attention: The statute does not name gender as a possible ground for protection.
To be granted asylum in the United States, an applicant must be facing persecution by their government or someone that government cannot or will not control. The applicant must show that the persecution is on account of race, religion, nationality, political opinion or membership in “a particular social group.” Persecution on account of gender is not included.
This makes sense when considering that the global treaty that obliges state parties to protect refugees was adopted 70 years ago, in 1951, when the legal rights of women were barely recognized. The treaty — called the Refugee Convention — says that countries have an obligation to protect those who have no choice but to flee or risk death in the face of injustice.
It is unsurprising that the needs of women facing persecution were not considered in 1951. It is also not surprising — though it is disappointing — that Congress wrote this outdated framework into the Refugee Act of 1980.
In the mid-1990s, some light was shined on this problem. Fauziya Kassindja, a 17-year-old from Togo, sought protection both from forced polygamous marriage to a much older man and from female genital mutilation. She was granted asylum after proving that she was a member of a “particular social group” — and thus covered by the Refugee Act. We were both involved in this case, which helped to crack open the door for women to argue that gender-based asylum claims should be granted under the “particular social group” category in the statute.
But progress for women has been slow and painful under a statute that does not explicitly recognize gender-based persecution. It took 14 years for the United States to grant asylum to a Guatemalan woman, Rodi Alvarado, who endured unspeakable brutalization by her husband, a former soldier. Regulations proffered by then-Attorney General Janet Reno in 2000 to protect women under the social-group category were never finalized, leaving women in the lurch. So much variance exists in the likelihood of success from court to court that filing a claim can feel like playing Russian roulette.
. . . .
This situation has been made much worse in recent years. Under Attorney General Jeff Sessions, decades of progress were nearly wiped out by the stroke of a pen. Because the highest immigration court is part of the Justice Department, he was able to single-handedly reverse key legal precedents favorable to women’s claims and issue guidance to judges limiting gender-based asylum. As a result of these changes, the safety of many immigrant women hangs by a thread. The Refugee Act urgently needs to be changed to clearly protect women who would otherwise meet the stringent requirements for asylum.
. . . .
***************************
Read the full op-ed at the link.
The Rest of the Story
I wrote the decision granting asylum in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996). Jamie Gorelick was the Deputy Attorney General during part of my tenure (1995-2001) as Chair of the BIA. Layli Miller-Muro worked for me as a BIA Attorney-Advisor for a time.
Following Kasinga, some of my colleagues and I put our careers on the line to vindicate the statutory, constitutional, and human rights of refugee women who suffered egregious persecution in the form of domestic violence. One of those cases was Rodi Alvarado (a/k/a “Ms. R-A-“), where we dissented from our majority colleagues’ misguided denial of protection to her following grotesque, clearly gender-based persecution. Matter of R-A-, 22 I&N Dec. 906, 928 (BIA 1999) (Guendelsberger,Board Member, dissenting with Schmidt, Chair, Villageliu, Rosenberg, and Moscato, Board Members). Alvarado had properly been granted asylum by an Immigration Judge, building on Kasinga, before being unjustly stripped of protection by the majority of our colleagues.
The incorrect decision in R-A- was vacated by Attorney General Reno. Finally, after a 14-year struggle, Ms. Alvarado was granted asylum in an unpublished, unappealed decision based largely on the rationale of the dissenters. In the meantime, the “gang of four” dissenters (minus Moscato) had been exiled from the BIA by Attorney General John Ashcroft, assisted by his sidekick, Kris Kobach (the infamous “Ashcroft Purge” @ the BIA).
In 2014, in Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the BIA finally recognized domestic violence based on gender as a form of persecution. They did so without acknowledging the pioneering work of the R-A- dissenters 15 years earlier. By this time, domestic violence as a basis for asylum had become so well established that it wasn’t even contested by the DHS (although, curiously, the case was remanded by the BIA for additional findings on issues that were beyond reasonable dispute)!
In the meantime, at the Arlington Immigration Court, my colleagues and I had consistently granted domestic violence asylum cases based on a DHS policy position known as the “Martin Memo,” after former INS General Counsel and later DHS Deputy General Counsel Professor David Martin (who, incidentally, argued the Kasinga case before the BIA in 1996 — famous gender-based asylum expert Professor Karen Musalo argued for Kasinga). Most of those grants were unappealed by DHS. Indeed, many were so compelling and well documented that DHS joined Respondents’ counsel in moving for asylum grants following brief testimony. These cases actually became staples on my “short docket,” promoting efficiency, fairness, and becoming one of the few “working parts” of the Immigration Courts.
Tahirih Justice Center, founded by, Layli Miller-Muro, was counsel in some of these cases and served as an essential resource and inspiration for attorneys preparing domestic violence cases. It also functioned as a training center for some of the “new all-stars” of the New Due Process Army. For a time, the progress in recognizing, documenting, and vindicating the rights and humanity of female asylum seekers, at least in the Arlington Immigration Court, was one of the few shining examples of the courts, DHS, and the private/NGO bar working cooperatively to improve the quality and efficiency of justice in Immigration Court. It should have been a model for all other courts!
Sadly, in 2018, Attorney General Jeff “Gonzo Apocalypto” Sessions, unilaterally intervened and undid two decades of progress for women refugees of color with his grossly incorrect and disingenuous decision in Matter of A-B-, 27 I&N Dec. 316 (BIA 2018), overruling Matter of A-R-C-G- on completely specious grounds while intentionally misconstruing the facts of record. Significantly, Sessions’s intervention was over the objection of DHS, which had expressed continuing agreement with the A-R-C-G- framework for deciding domestic violence cases.
“Hanging by a thread,” as stated by the op-ed, unfortunately vastly understates the war on the legal rights and humanity of asylum-seeking women, particularly targeting women at color, being carried out at EOIR today. This effort is led by a BIA that has long since lost its way, basically “weaponizing” the legal distortions and vicious, openly misogynist dicta set forth by Sessions in Matter of A-B- to dehumanize, degrade, and deport vulnerable refugee women.
In numerous cases, the BIA actually intervenes at ICE’s request to reverse proper grants by courageous and scholarly Immigration Judges below. It’s all about churning out final orders of removal as a deterrent –a vile, disgusting, perverted “philosophy” advanced by Sessions, Barr, and Whitaker, and not yet effectively rejected by Judge Garland.
Judge Merrick B. Garland Official White House Photo Public Realm
Judge Garland is in the job because he is not only an experienced DOJ senior executive, but a long-serving Federal Judge who was admired for his sense of justice. It shouldn’t take an army of “spear-carriers” and subordinates for a true leader of Judge Garland’s experience to seize control of the situation and start getting the “ship of justice” sailing in the right direction. Judge Garland’s political and bureaucratic travails are of no moment to, and pale in comparison with, the additional, unconscionable abuse and “Dred Scottification” being heaped on refugee women and their courageous representatives by his dysfunctional and unconstitutional “star chamber courts.”
“Refugee women get ‘special treatment’ in accordance with the ‘traditional values’ applied to their cases in Judge Garland’s Immigration Courts!”
Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Please, Pick Up The Phone & Your Pen, Judge Garland!
Not rocket science, Judge Garland! All it takes is six calls and a signature to start ending misogyny at EOIR and achieving racial justice in the America.
First three calls: Call Judge Dana Marks (SF), Judge Noel Brennan (NYC), Judge Amiena Khan (Newark) and tell them that they are detailed to the positions of Acting EOIR Director, Acting BIA Chair, and Acting Chief Immigration Judge, respectively. (The first position is vacant and the other two positions are filled by Senior Executives subject to transfer at the AG’s discretion. The current Acting Director already has an SES position to which she could return, or she could be re-installed as the
EOIR General Counsel, a job for which she is well-qualified.)
Fourth call: Call the the head of of the Justice Management Division (JMD). Ask her/him to find suitable DOJ placements for the two current incumbents mentioned above and all current members of the BIA (all of whom are either SES or “Management Officials” subject to transfer at the AG’s discretion) in other DOJ positions at the same pay level where they can do no further damage to our justice system. Ask him/her to arrange for the temporary appointment of former DOJ employees Jamie Gorelick and Layli Miller-Muro as Acting Appellate Judges at the BIA.
Calls five and six: Call Jamie Gorelick and Layli Miller-Muro. Thank them, tell them you agree with their Post op-ed, and ask (or beg) them to come to DOJ on a temporary basis to help Judges Marks, Brennan, and Khan solve the current problems with asylum adjudications and take the necessary actions to get EOIR functioning as a legitimate, independent, due-process-oriented court system. In other words, turn their cogent op-ed into a “real life action plan” for restoring due process, humanity, and common sense to the Immigration Courts, with a focus on the now totally unprofessional, wrong-headed mis-adjudication of asylum cases.
Finally, sign this order:
All precedent decisions issued to EOIR by former Attorneys General Sessions and Barr, and former Acting Attorneys General Whitaker and Wilkinson, and all their pending actions certifying cases to themselves are hereby vacated. All cases shall be returned to the Board of Immigration Appeals (“BIA”) for reconsideration. In the reconsideration process, the BIA shall, among other things, honor the letter and spirit of these binding precedents:
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)
Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987)
Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996)
In the reconsideration process the BIA shall also be guided by the principle of “through teamwork, innovation, and best practices, become the world’s best tribunals, guaranteeing fairness and due process for all.”
See, it’s not that complicated. By the end of this year, women will get the protection to which they legally are entitled from the Immigration Courts. We all will see dramatic changes that will lead the way toward “equal justice for all’” in America and become a blueprint for the Immigration Courts to fulfill the above-stated principle.
It would also be a far better legacy for Judge Garland to be viewed as the “father of the fair, independent, expert Immigration Courts,” than to be remembered as running the most dysfunctional, unfair, and misogynistic court system in America, his current path. And, as an extra added bonus, Judge Garland, you will have a great start on building a premier source of “battle tested,” due-process-oriented, progressive jurists for future Article III appointments!
It’s a “win-win-win” that you no longer can afford to ignore, Your Honor!
Merrick Garland was recently confirmed as attorney general, bringing back a much-needed sense of impartiality and integrity to the Justice Department and the immigration court system it oversees. In this sense, his appointment is critical because, less than two months into his presidency, Joe Biden is already confronting the reality that meaningful immigration policies don’t always match up with wishful campaign promises. As thousands of migrants, especially unaccompanied minors, continue to seek safety and opportunity in the United States; as changes to interior enforcement and immigration prosecutions are slow to implement; and as advocates apprehensively watch detention facilities expand and COVID-related border closures continue, immigration remains the most divisive of all political conversations.
But rather than be overwhelmed by the challenge, perhaps there is another place to start, one that has only been alluded to in Biden’s plans and never taken up by Congress: If we want to re-build a better, stronger immigration system, we need to start with immigration courts. In a Just Security piece published in November, Gregory Chen eloquently laid out the devastating harm caused by the Trump administration’s politicization of the immigration judiciary, pointedly describing the courts as “strained to the breaking point under a massive backlog of cases and a systemic inability to render consistent, fair decisions.”
Courts are the backstop of every legal system. Their most basic function is to ensure that applications of the law are fair, not arbitrary and capricious. In the U.S. immigration system, however, most of the oversight has fallen on administrative courts housed within the Department of Justice. As Chen argues, the courts “operate under the jurisdiction of a prosecutorial agency, the Department of Justice, whose aims and political interests often conflict with the fundamental mission of delivering impartial and fair decisions.” Further exacerbating the tension, beginning in 1996 Congress expanded the executive branch’s already far-reaching power on immigration by starting a 30-year trend of limiting the federal courts’ jurisdiction over immigration issues; efforts that were only reinforced by the 2002 Homeland Security Act and 2005 REAL ID Act. The recently introduced, White House-backed, U.S. Citizenship Act of 2021 only slightly restores judicial oversight, allowing district courts to review allegations of violations of certain portions of the Act. For the foreseeable future, immigration courts remain under the direction of the Executive Office for Immigration Review (EOIR), a small and chronically under-funded sub-agency of the Justice Department, operating out of an office building in Falls Church, Virginia, removed from DOJ leadership in Washington, D.C.
While they by no means caused the issues that plague the EOIR today, the Trump administration’s policies put the proverbial final nail in the coffin of a quasi-functioning system, decimating the daily functions of immigration courts and showing how they can be used as political tools. The overwhelming backlog of cases –nearly 1.3 million at last count across all courts– exacerbated by the enforcement-first agenda, means that immigration judges have enormous caseloads with few support staff to help them manage the work. In addition, policies by the Trump administration removed judicial discretion from judges, prevented them from using simple control tools to manage their dockets, tied performance reviews to how many cases they closed out within a year while making it harder to avoid entering deportation orders, and created new administrative law to further restrict benefits a judge can grant. When the immigration bench pushed back, leadership dismantled the union that represented them. Hiring and rewards practices have politicized the bench even more. As Chen noted in his piece, the Trump administration “stacked the courts with appointees who are biased toward enforcement, have histories of poor judicial conduct, hold anti-immigrant views, or are affiliated with organizations espousing such views.”
This is not the hallmark of a functional legal system, and its ripple effects undermine our immigration system as a whole.
. . . .
Otherwise, we will prolong a situation that would be comical were the implications not so devastating. Returning to the individuals stranded in Mexico due to the MPP, for example – as of the time of this writing, they are being registered into a database and given COVID tests by various international organizations. Once cleared to enter the United States, they will fill out a form, by hand, which is handed to the Customs and Border Protection official. The CBP officer, overwhelmed and under-resourced as they are at the border, will then transmit this paper form to the immigration court officials, who will enter it into their systems and change the case to the appropriate court. In New York, these courts do not even have sufficient staff to assign one clerk, who also doubles as an administrative assistant, to each judge. As a result, calls to the court frequently go unanswered and are rarely returned. Furthermore, increasingly, understaffing has led to misplaced evidence submissions for pending cases. The responsibility to ensure that all of these obstacles are overcome will lie on the individual who just, finally, entered the United States.
An independent immigration judiciary, with its own resources and free from political oversight, is the only long-lasting remedy to this dysfunction. In the meantime, the agency, much like the DOJ it depends on, is in desperate need of thoughtful, measured leadership that values due process and impartiality and supports existing staff as it continues to navigate the complex problems posed by our immigration laws. There must be trained, dedicated staff ensuring efficient management of the court’s dockets and administrative systems so that the individuals whose cases are going through the courts understand what is required of them. Only then will the immigration system reflect American notions of justice, and only then can we begin to rebuild a strong, sustainable immigration system that meets our goals for foreign policy, national security, and domestic prosperity.
******************
Read Camille’s full article at the link.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Not rocket science! Just following the due process clause of the Constitution; implementing asylum laws in the fair, generous, and practical way they were intended; replacing today’s failed EOIR administrators, the entire BIA, and many Immigration Judges responsible for “asylum free zones” with competent, expert professionals; and treating migrants, regardless of race, color, creed, or gender, as human beings!
If you wonder why Judge Garland is continuing to run “star chambers” masquerading as “courts” @ DOJ, join the club!
“Justice” Star Chamber Style
As cogently described by my friend and fellow panelist at the Hispanic National Bar Association last night, Claudia Cubas, Litigation Director at the CAIR Coalition, in what other “court” system in America are you not entitled to a timely copy of your client’s file to prepare for litigation and file applications (often with artificially truncated “filing dates” to promote “summary denials”)? Making the Immgration Courts functional is neither impossible nor that complicated. All it takes is competent leadership with the guts to “clean house” at EOIR and “kick some tail” at an intransigent, contemptuous, and out of control DHS.
Claudia Cubas Litigation Director CAIR Coalition Photo: berkleycenter.georgetown.edu
So why is Judge Garland investing in the continuing, deadly “Clown Show,”🤡🦹🏿♂️☠️⚰️ rather than getting going on bringing “his” courts into compliance with due process? It’s not even that hard to get the right experts who could do the job in place, at least on a temporary basis.
Judge Merrick B. Garland Official White House Photo Public Realm
If Judge Garland won’t do his job, what can we do to force change and rationality into this totally dysfunctional, stunningly unfair, scofflaw system? Here are some ideas from last night’s panel at the Hispanic National Bar Association (“HNBA”):
Apply for jobs at EOIR (sure, they are hidden away on “USA Jobs,” there is no effort whatsoever on Judge Garland’s part to diversify or recruit real experts, and the selection process is opaque). But, better judges, with actual experience representing migrants (particularly asylum seekers) in court, and some compassion and human understanding along with expertise, are the key to fixing the system. It’s particularly critical for minority attorneys (now a relative rarity in the “Immigration Judiciary”) to apply in overwhelming numbers and get into the system to start forcing change from within (“bore from within,” as Dan Kowalski says). Can’t complain about who’s selected if you don’t apply and compete!
Raise hell with your legislative representatives! As long as Immigration Court reform is #27 on their radar screens, the problem won’t get addressed.
Get involved with educating the public about the ungodly, un-American disaster in the Immigration “Courts” that don’t fit any normal definition of “courts” (except “kangaroo courts”). Join and support advocacy and social service groups; write op-eds; write for blogs; speak at community and church meetings; run for political office!
Sue, sue, sue, sue! Make sure that the systemic mistreatment of migrants and people of color in Judge Garland’s Immigration Courts are front and center in the Article III Courts and that we are making an historical record of where Federal Judges and public officials stand on the most critical racial and social justice issue in America today. Argue the very obvious Constitutional violations present in a system run by prosecutors, where judges can be neither fair nor impartial, and where many lack even minimal competence and qualifications for their “judicial” positions. Take the fight to the broken and dysfunctional DOJ in the only way they understand, by whacking them down in court! Make Judge Garland face and “own” his disgracefully failed, unprofessional “courts” by making it the #1 issue occupying his time. Make how he deals with the Immigration Courts his overriding “legacy” for better or worse!
Remember, GOP politicos like to use immigration as a “prop” to spread their message of racial vilification and dehumanization of the “other” because it “fires up” their White Nationalist base! By contrast, Dem politicos want to make immigration go away and pretend like the mess in the Immigration Courts doesn’t exist, can’t be fixed, isn’t that important (as in lives of migrants and asylum seekers, mainly of color, don’t count), and isn’t killing people! Don’t let either party get away with their respective dishonest, “designed for failure,” approaches!
Humanity and the future of American democracy are at stake here! They might be “Clown Courts” 🤡 but the damage they daily inflict on human lives ☠️⚰️ and values 🤮 is no laughing matter!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! Put an end to deadly “Clown Courts” 🤡 now!
Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Every woman knows what I’m talking about. It’s the presumption that makes it hard, at times, for any woman in any field; that keeps women from speaking up and from being heard when they dare; that crushes young women into silence by indicating, the way harassment on the street does, that this is not their world. It trains us in self-doubt and self-limitation just as it exercises men’s unsupported overconfidence.”
Rebecca Solnit, Men Explain Things to Me
On April 5, the U.S. Court of Appeals for the Ninth Circuit issued a published decision in Rodriguez Tornes v. Garland. The opening sentences of the decision are heartbreaking:
Since the age of five, Petitioner has been told that men will beat her if she does not submit. Her mother demanded that she learn how to do housework, how to accept spousal abuse, and how “to obey everything that [her] husband would say.” She beat Petitioner with various objects almost daily, in part to prepare her for future beatings from her husband.
But along with the darkness there was also hope. The decision’s opening paragraph concludes: “Yet Petitioner came to believe that ‘there should be equality in opinions[] and in worth’ between men and women. She became a teacher.”
Remarkably, over all the years that followed, the Petitioner’s hope survived the most brutal attempts to crush her into silence and submission. As her mother had foreseen, she endured unspeakable and repeated forms of physical and psychological torture, including beatings and rape, at the hands of her husband. Yet she continued to express the belief in her rights as an equal, and was brutally punished each time she did so, in an attempt to destroy the part of her capable of forming such belief. Neither the police nor her own family offered her any possibility of protection.
When she finally succeeded in escaping to the U.S., her abuse continued, merely transferred to the hands of another domestic partner with whom she had three children in this country. In 2017, our government deported both her and her latest abuser. Facing the prospect of continued harm in her native Mexico, her still unbroken hope guided her to the U.S. once again, where she was placed into removal proceedings.
Her hope was briefly rewarded when an Immigration Judge granted the Petitioner asylum, ruling that her persecution was on account of her feminist political opinion. The Immigration Judge alternatively held that asylum was warranted on account of the Petitioner’s membership in the particular social group consisting of “Mexican females,” which formed at least one central reason for her persecution.
It isn’t clear why ICE appealed the IJ’s decision. On appeal, the BIA acknowledged the Petitioner’s honesty and the ongoing, systemic nightmare of violence she endured because of her gender and unbroken belief that she possessed rights. And yet the BIA chose to act like a rubber stamp for the administration it served, and found a way to reverse the IJ’s well-reasoned decision. According to a concurring opinion of the circuit court, the BIA managed this by suggesting that the Petitioner’s brutal suffering was motivated by her “personal relationship” with her abuser. According to the concurrence, the BIA supported this conclusion by relying on the decision of former Attorney General Jeff Sessions in Matter of A-B-.
Of course, asylum applications require an individualized analysis of the facts of the specific case under consideration. Matter of A-B- involved a different asylum seeker from a different country who experienced different facts than this petitioner. So in citing A-B- to reach a conclusion so at odds with the facts of this case, the BIA’s judges were signaling their choice of a specific policy objective over their duty to neutrally apply law to specific facts.
Among the facts the BIA chose to ignore was the opinion of an expert who drew “on more than three decades of research, writing, legal representation, and lawmaking” in support of her conclusion. The expert, Prof. Nancy Lemon of the Univ. of Cal. – Berkeley Law School, explained how all of the weapons at abusers’ disposal are “tied to social belief systems that ‘men are entitled to dominate and control women because the male sex is considered superior.’” Prof. Lemon went into great detail in explaining the political nature of the mistreatment. Of course, it mattered not to the Board.
In discussing this case, an esteemed colleague pointed to a decision that the same court issued more than three decades ago. In 1987, in an opinion authored by Judge John T. Noonan, Jr., a conservative Reagan appointee, the Ninth Circuit concluded that a Salvadoran woman subjected to repeated sexual abuse and other violence by a sergeant in the Salvadoran military had been persecuted on account of her political opinion where the abuser threatened to falsely label her a “subversive if she refused to submit to his abuse.”1 In the words of Judge Noonan, the fact that the persecutor gave the asylum seeker “the choice of being subjected to physical injury and rape or being killed as a subversive does not alter the significance of political opinion…” The decision reversed the conclusion of the BIA that “the evidence attests to mistreatment of an individual, not persecution,” precisely the same finding the Board used more than three decades later in denying Ms. Rodriguez Tornes of her grant of asylum.
In 1993, Justice Samuel Alito, then sitting at the Third Circuit, wrote that “we have little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes.”2 28 years later, the Ninth Circuit cited Justice Alito’s words in Rodriguez Tornes, adding that it had reached the same conclusion in its own unpublished 1996 decision.3 These were obviously not the decisions of liberal judges forwarding a political agenda. To the contrary, these judges were able to transcend political ideology by neutrally applying law to facts; this is what judges do. As a result, the law of asylum has progressed to increasingly provide asylum protection to victims of domestic abuse. Immigration Judges appointed by both Republican and Democratic administrations have followed suit, authoring well-reasoned decisions granting asylum in numerous cases of domestic abuse, including this one.
Yet over the same period of time, the BIA has stubbornly refused to budge from its 1980s position that domestic abuse is simply a personal matter not linked to a political opinion within society. In the words of Jeff Sessions in Matter of A-B-, the vile abuse was simply due to the abuser’s “preexisting personal relationship with the victim.”4
When a mother feels compelled to begin abusing her five year old daughter to prepare her to obey her husband one day, can the inevitable spousal abuse that follows really be dismissed as just a personal matter? And when the record contained Prof. Lemon’s evidence (because expert testimony is evidence) of “a correlation between patriarchal norms that support male dominance and violence against women by intimate partners,” what unsupported overconfidence did the BIA’s judges rely on in explaining that they know better?
The BIA decided this case during the Trump Administration. For those hoping that the change in administration will usher in a change in the Board’s view, it bears noting that neither the Clinton nor Obama administrations brought about a sea change in the Board’s approach to domestic violence claims. Under Clinton, the BIA issued Matter of R-A-,5 a precedent that essentially precluded the granting of asylum to domestic violence victims based on their membership in a particular social group. The decision was vacated by then-Attorney General Janet Reno, who promised more enlightened regulations on the issue that never arrived. Similar regulations were rumored to be in the works under Eric Holder, but again did not materialize. The BIA’s one grudging concession to the political climate of the Obama era, Matter of A-R-C-G-, was later vacated by Jeff Sessions. While the BIA discussed a second decision under Obama expanding on the narrow holding of A-R-C-G-, it too never came to be.
Based on that history, it seems safe to say that without drastic action by Attorney General Merrick Garland, the BIA will continue issuing the same denials for the same reasons as before. For every individual such as Ms. Rodriguez Tornes who is able to succeed on appeal, there are countless more who merely end up as stratistics, deported to face more of the horrendous abuse that drove them here in the first place. The Ninth Circuit recently had to correct the BIA’s determination that attempted gang rape did not constitute persecution,6 and last year, reversed the Board erroneous rejection of a domestic violence victim’s particular social group on the grounds that it contained a few too many words.7 The BIA continues to be composed of the exact same group of judges who issued each of those decisions.
It is the role of the BIA to reach fair decisions by applying the applicable law to the individual facts. Doing so in the domestic violence context would require the Board to finally recognize opposition to systemic male oppression as a political opinion warranting asylum. Instead, for decades the BIA has enforced the offensive, outdated message to women seeking protection from such abuse that “this is not their world.” The time has come to finally put an end to this sad substitute for true administrative appellate review.
Notes:
Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987).
Fatin v. I.N.S., 12 F.3d 1233, 1242 (3rd Cir. 1993).
Moghaddam v. I.N.S., 95 F.3d 1158 (9th Cir. 1996) (unpublished).
Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020).
Copyright 2021, Jeffrey S. Chase. All rights reserved.
Republished by permission.
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Different style, but the same message as I delivered yesterday about the BIA’s institutionalized racist misogyny and the strange tolerance that Attorney General Merrick Garland has exhibited to date for this type of grotesque judicial misconduct.
And, this is on top of the astounding, largely self-inflicted 1.3 million case backlog and total dysfunction generated by the BIA’s failures combined with the “maliciously incompetent” effort by DOJ politicos and EOIR bureaucrats to disguise a “deportation railroad” as “administrative review!” Leaving aside all the legal travesties, the mal-administration and waste of public resources alone would be more than enough to require the immediate replacement of EOIR “upper (mis)management” and the entire BIA with qualified judicial professionals and professional judicial administrators.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Jeffrey and I are hardly the first to expose the charade of “appellate review” at the BIA. Two decades ago, following the “Ashcroft Purge,” administrative scholar and former GOP House Counsel Peter Levinson published his seminal work “The Facade of Quasi-Judicial Independence In Immigration Appellate Adjudications” documenting the mockery of due process and legitimate judicial practices being foisted off on the public by DOJ politicos.
In the two decades since, legislators, DOJ Officials, and Article III Judges have done their utmost to ignore and paper over the glaring constitutional and administrative disasters identified by Peter. Not surprisingly, during that time the BIA and the Immigration Courts have descended into a slimy mass of disastrous bias, injustice, and judicial and administrative incompetence unequaled in American Justice since the heyday of the First Era of Jim Crow.(We are now in the “New Era of Jim Crow.”)
Of course, we need an independent Article I Immigration Court as a matter of the highest national priority. But, it’s not on schedule to happen tomorrow, even though it should! In the interim, Judge Garland could fix lots of the festering problems in this system. I gotta wonder if and when he is going to wake up and pay attention to the “assembly line injustice” being cranked out by “his” Immigration Courts?
