"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 am thrilled to report that VIISTA is getting rave reviews. The inaugural class of students is really enjoying the course. They will be finishing Module 1 next week and will start Module 2 (with its focus on immigration law) in January. I am really impressed so far with their work product and the quizzes and other assessments confirm that they are learning what we want them to learn.
Students in the inaugural class come from diverse backgrounds. My current students include a Stanford college senior who aims to work as a paralegal next year, and eventually go to law school. Other students are recent college grads interested in peace and justice/law/social work who want to make an immediate impact for immigrant families. Some students are first-generation immigrants, others are children of immigrants. Some students are retirees or those seeking an encore career, like empty nesters and parents coming back into the workforce. Three PhDs also enrolled in the program. Many are volunteers with immigrant serving organizations.
I am now focused on getting the word out. Attached and linked here is a recent article from the Chronicle of Higher Education and here is a link to an article from the Columbus Dispatch. And here is a link to the website, immigrantadvocate.villanova.edu.
Please help me to spread the word about VIISTA in your networks, including among volunteers with your organizations. You can also let folks know that scholarships are available for the Spring term, which starts on Monday, January 11.
The Scholarships are offered through ADROP, Augustinian Defenders of the Rights of the Poor.
If you have any questions about the process, please feel free to reach out to Lacie Michaelson (cced here). She is the Executive Director of ADROP and took VIISTA herself as a student in the pilot.
Please note that the deadline to apply for a scholarship for Spring of 2021 semester is Monday, December 14th, 2020.
Thanks for helping me to spread the word and identify passionate advocates for immigrant justice who want to become part of the solution.
Warmly,
Michele
Michele R. Pistone
Professor of Law
Villanova University, Charles Widger School of Law
Founding Faculty Director, VIISTA: Villanova Interdisciplinary Immigration Studies Training for Advocates
Over the past four years, what passes for “management” at DOJ and EOIR has wasted millions of dollars, squandered thousands of hours of time, and kept the private bar on a treadmill with a steady stream of moronic, cruel, and inept “enforcement only” gimmicks, each seemingly stupider and more counterproductive than the last, driven by a White Nationalist nativist agenda. The result is a backlog that has exploded to astounding levels, (even with twice as many judges on the bench, many of them with questionable credentials and little if any expertise in immigration and human rights laws) and a totally dysfunctional mess that threatens to topple the entire Federal judicial system.
As those of us who understand immigration know, the key to a successful EOIR is representation! With an adequate supply of good representation, cases get sorted out at the earliest possible levels, claims are properly documented and presented, individuals show up at their hearings at remarkably high rates, and results are much more likely to be fair. Presto, “Aimless Docket Reshuffling” by EOIR shrinks, parties are encouraged to stipulate and get right to the contested issues, results at trial are more likely to be fair, appeals, petitions for review, and remands decrease, and the backlogs go down as the dockets come under control. Moreover, as the Immigration Court litigation experience improves, more practitioners get the “positive vibes” and are willing to undertake pro bono or low bono cases. Best practices developed to achieve fairness on EOIR’s high-volume docket find their way into other parts of the Federal Court system. It’s an all-around winner! Or, at least it should be!
So, any competent, rational, and knowledgeable “management group” at EOIR would make increasing representation “job # 1.” They would work cooperatively and harmoniously with bar groups, NGOs, states, and localities, to increase availability and improve quality of representation. They would eschew unnecessary detention, which inhibits representation, and insure than courts are reasonably and conveniently located in areas where private representation is abundantly available.
Of course, that’s not what the clowns at EOIR have done! Instead, they have gone out of their way to inflict misery on respondents and their representatives. Far from inspiring more folks to undertake cases, we have all seen stories of how the intentional rudeness and abuse inflicted in Immigration Court and the dysfunctional system actually demoralizes lawyers and causes them to leave the field. Their “stories of woe” are hardly encouragingfor others to donate time and effort.
Fortunately, while EOIR was busy ”kneecapping justice,” someone outside the “EOIR twilight zone” was thinking about how to solve the problem! With help from her friends, Michele designed the VIISTA program to train more non-attorney representatives to represent asylum seekers, convinced folks to fund it, recruited initial classes, and has it up and running. (By contrast, after two decades of wasted resources and incompetent meanderings, EOIR is still without a functioning e-filing system. Think that might have helped or saved some lives during the pandemic?)
And the training is not only a bargain (with scholarships available), it is beyond first class in substance and content. Essentially, it’s “what you really need to learn in law school in less than a year.” The curriculum would put to shame any training we received at EOIR, even before the current Clown Show. My Round Table colleague Judge Jeffrey Chase (a/k/a “Sir Jeffrey”) has reviewed the curriculum and agrees.
The solution is painfully obvious to anyone who takes the time to think about it. On January 21, 2021, give the hook to the Clown Show in Falls Church, and bring in the scholar/problem solvers like Michele and her NDPA colleagues to lead the due process revolution that will transform EOIR into a place where teamwork and innovation will produce the world’s best court system guaranteeing fairness and due process for all. That was once the “EOIR vision” before “serial mismanagement” transformed it into the ugly, dysfunctional Star Chamber that confronts us today.
It need not and should not be that way. But, the vision of true due process at EOIR will only be realized if the Biden Administration puts the right people — folks like Michele and others like her from the NDPA — in place immediately upon assuming power.
Let your contacts in the Biden Administration know that you have had more than enough! The EOIR Clown Show must go!
Due Process Forever!
PWS
12-05-20
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleMe
Friends, you know, and I know, what is the biggest crisis facing the American justice system today. One that undermines and threatens racial justice, social justice, equality before the law, voting rights, American values, and indeed the very foundations of our democratic institutions and our justice system.
It’s imperative that our incoming Administration and its leaders fully recognize the overwhelming importance and extreme urgency of immediately ending the ongoing, deadly, and dangerous “Clown Show” at EOIR – the Executive Office for Immigration Review.
Under the defeated but not yet departed regime, EOIR has been weaponized by White Nationalist nativists to function as America’s Star Chambers. Once envisioned by its founders, including me, as a potential “jewel in the crown” of American justice, EOIR now has become an ungodly nightmare of anti-due process, anti-immigrant propaganda, bad judges, bogus stats, uncontrollable backlogs, malicious incompetence, stupid regulations, daily doses of irrationality, abuse of private attorneys, and institution of “worst practices.” But, it doesn’t have to be that way! No, not at all!
With courage, bold action, and, most important, the right people in place in leadership and key judicial positions, EOIR can be fixed: sooner, not later. The Immigration Courts can, indeed, through teamwork and innovation become the world’s best courts guaranteeing fairness and due process for all, promoting a model of best practices for the Federal Judiciary as a whole, and providing a trained and ready source of due-process oriented judges with strong immigration, human rights, and equal justice backgrounds for the Article III Judiciary and public policy positions.
EOIR will then be positioned for the essential transition to an Article I independent U.S. Immigration Court when we have the votes.
But, it will require a far more progressive, visionary, and aggressive approach than past Democratic Administrations. We must immediately (and legally) clear out the deadwood and get the problem solvers from the New Due Process Army (“NDPA”) — mostly now in the NGO, clinical, and private sectors, folks like you and your colleagues — in place to fix this horribly broken system.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleJeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com Republished under licenseDumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under licenseHon. Paul Grussendorf U.S. Immigration Judge (Ret.) Member, Round Table of Former IJs Author Source: Amazon.com
“Stephen Miller, the self-hating white nationalist who has dictated this administration’s immigration policy from the beginning, was once a staffer for then-Senator Jeff Sessions. Miller subscribes to the ‘white replacement’ or ‘white genocide’ theory that the brown-skinned migrant hordes will replace the superior descendants of Western civilization if not stopped.”
In 2016, after a legal career of 30 years in refugee and asylum protection, including eight years as a federal refugee officer and seven years as an immigration judge, I accepted a position in the Arlington, Virginia asylum office as a Supervisory Asylum Officer. I had tremendous respect for the U.S. asylum program and I knew from experience that most asylum officers choose the job as a humanitarian calling; their ranks include many attorneys and individuals with graduate degrees, with experience in the Peace Corps and other humanitarian backgrounds. And I can affirm that Asylum Officers have the hardest job of any immigration officers in USCIS-United States Citizenship and Immigration Services, due to the complex and ever-changing asylum law, and the nature of the intensive interviews.
The law enforcement side of our immigration system is exercised by ICE — Immigration and Customs Enforcement, a sub-agency of DHS that was created, along with Department of Homeland Security, in 2003 after the tragedy of 9/11. ICE officers are hired from a completely different profile of applicants and receive much less training in the humanitarian aspect of immigration law. The equivalent at the border is CBP — Customs and Border Protection.
The Netflix Series Immigrant Nation, airing in August 2020, exposes how, soon after Trump’s ascendancy to the presidency, he and his nativist cronies put into place a series of executive measures designed to practically eliminate refugee admissions; to curtail and eventually eliminate access to our asylum system; and even to severely reduce lawful migration to the United States. Virtually all of these executive measures are unlawful, in conflict with our nation’s immigration statute and in violation of our international treaty obligations, and even demonstrably harmful to the economic well-being of the U.S. They have all been challenged in court and practically every such executive measure has been deemed unlawful by federal district and appellate courts, yet the anti-immigrant juggernaut sails on. Recently the GAO — Government Accounting Office, an independent body, declared that, according to the Federal Vacancies Reform Act the current Acting Directors of both DHS, Chad Wolf, and USCIS, Ken Cuccinelli, were unlawfully appointed, and presumably every edict that they have issued since their appointments this past year will also be deemed unlawful.
One of the first ignoble acts of the administration’s new appointee to head U.S. Citizen and Immigration Services, Director Lee Cissna, was the removal of this truism from the agency’s mission statement: “America is a Nation of Immigrants.” Why would the head of the agency that receives all applications for visas, both temporary and permanent, and for asylum and refugee protection choose to redact such seemingly innocuous and self-evident verbiage from the agency’s mission statement?
In the same time frame the Department of Housing and Urban Development, headed by Trump’s appointee Ben Carson, removed the words “inclusion” and “free from discrimination” from its mission statement. We’ve seen in history how totalitarian regimes try to control the dialogue within their populace by changing and sanitizing language, including the use of language within federal institutions.
When this White House requested a study to map the net costs of refugees, conducted by the Department of Health and Human Services, and the results showed a net benefit to the economy over a period of ten years of $63 billion, the White House buried the study. https://www.nytimes.com/2017/09/18/us/politics/refugees-revenue-cost-report-trump.htm
Simultaneously the administration was implementing the so-called Muslim ban against citizens and residents of seven mostly-Muslim countries out of supposedly national security reasons. No one has ever explained why Saudi Arabia, the home of 15 of the 19 9/11 bombers, was not included in the list. (Saudi Arabia is also the home of the Al Qaeda sympathizer who shot up the Naval Air Station at Pensacola,Florida Air Base in December, 2019, killing three sailors and wounding eight.)
In the early days of this administration there was much hype over the “migrant caravans” composed mostly of Central Americans from the “northern triangle” countries, El Salvador, Honduras and Guatemala, that were “invading” our country — the old “barbarian hordes” trope that is a favorite of every totalitarian regime. In fact the numbers of each such “caravan” for the most part would easily fit inside a typical college stadium. (Current demographics demonstrate that even if we admitted all of them as potential workers and residents, the U.S. would still experience labor shortfalls in the near future and they would not supplant the decline of our native-born population.)
In the final months of 2016, I traveled with a group of asylum and refugee officers to San Salvador where we interviewed and vetted minors who were requesting refugee protection because of threats to themselves and their families by the ruthless MS-13 and 18th Street gangs. The children we spoke with or their parents had all received such threats as, “Either you work for us or you and your parents will be dead next week,” or “Give me your daughter or you have two days to leave the country.” And they all knew neighbors or close relatives who had died when such threats were ignored. We felt gratified knowing that we were granting these kids a lifeline of resettlement to the U.S.. I would only hope that any American father or mother, if ever faced with such a choice by a credible threat, would have the courage and means to flee across borders in order to protect their children, just as those parents joining the caravans with their children have chosen to do.
The new administration ordered a halt to such in-country interviews and even the resettlement of the cases we had already approved for travel. Its spokesmen have continuously and falsely characterized such asylum applicants as fraudsters who are gaming the system. The administration’s first morally challenged Attorney General, Jeff Sessions, claimed there was a conspiracy of corrupt attorneys who are manufacturing all of their stories. Believe me, they are not manufactured. All credible international reporters, including our own State Department, rebut the claim that such migrants are merely seeking jobs in the U.S. International reports affirm that some gangs in El Salvador are able to maintain such power and territorial control that they exercise the functioning equivalent of State authority, making it impossible for potential victims to resist their demands.
Sessions even admonished the assembled group of immigration judges at a conference, telling them they must not let their humanitarian impulses interfere with some fictitious mandate to deport as many applicants as possible. (Stephen Miller, the self-hating white nationalist who has dictated this administration’s immigration policy from the beginning, was once a staffer for then-Senator Jeff Sessions. Miller subscribes to the “white replacement” or “white genocide” theory that the brown-skinned migrant hordes will replace the superior descendants of Western civilization if not stopped.)
Jeff Sessions also chose to meddle in the administration of the immigration courts, in such a bungling manner that his mandated reforms achieved the opposite of his goal to reduce backlogs. By restricting the ways in which immigration judges can control their own docket, such as eliminating a judge’s ability to place a case on hold or “administratively close” a case while collateral legal action is ongoing in the migrant’s case, and by taking away ICE trial attorneys’ discretion to agree to grants of compelling cases, backlogs blossomed by the tens of thousands — within the two and a half years of this administration from approximately 500,000 to currently one and a half million.
The Netflix film crew obtained unprecedented access to ICE and CBP operations in the making of their series. I have trained asylum officers at the Federal Law Enforcement Training Center at Glencoe, Georgia, featured in the first episode of the Netflix series, and I have supervised asylum officers at the ICE family detention centers in Texas featured in the first episode. And I experienced, along with my colleagues, the devastating effects of the administration’s continuing attempts to deter refugees from coming to our southern border through abuse and cruelty, the so-called family separation policy. It is telling to see how many ICE and CBP officers and supervisors conceded, on camera, that the deterrence of ripping children from their parents’ arms upon arrival at the border is cruel and inhumane and un-American, but they felt compelled to follow the orders because “it’s the law.”
The so-called Zero Tolerance policy that was advanced by retired Marine General Kelly, first DHS Secretary and later White House Chief of Staff, and AG Sessions was a sham from the get-go. An impossible task, launched for public consumption and to create the impression that only by locking up all unlawful border crossers could any order be returned to the enforcement of our laws. The sham is that no law enforcement body in the country, federal or state, has a zero tolerance policy, simply because no one has the resources to detain, charge, prosecute, adjudicate and jail all offenders. (This stark reality is in fact the reason for the plea bargaining system in criminal court). In my career I observed how the U.S. Attorney’s Offices in Washington, D.C., and in San Diego, would, within their discretion, “no-paper” cases they considered too minor or insignificant to prosecute, saving their powder for bigger game. This was also the policy that the Obama Administration, under guidance of then DHS Secretary Janet Napolitano, established as ICE policy, when ICE agents and prosecuting attorneys were advised to let the low-hanging fruit go, such as hard-working but undocumented laborers, and concentrate instead on serious felons for apprehension and removal. The admitted consequences of this administration’s Zero Tolerance policy was to require all migrants be detained and prosecuted. Since children cannot be detained in an adult facility, they were to be separated from their parents, in order to achieve the maximum of trauma and pain upon the children and their parents. The trauma itself was to be a deterrent to future unlawful crossers, by “sending a message” not to come to the U.S. The notorious photos of kids in cages have tarnished our international reputation and provided talking points for terrorists.
Netflix film crews accompanied agents on raids in multiple locations, when the Zero Tolerance policy initially led to mass inland roundups. The cameras recorded agents blatantly lying to targets about who they are and their authority to enter private dwellings and arrest suspects without criminal arrest warrants, clear violations of the Fourth Amendment. We see numerous ICE veterans, and even FODs-Field Office Directors — lamenting the new ‘catch everyone’ policy, knowing from experience that such tactics are inhumane and bound to fail in the long run.
We see a gung-ho ICE public affairs officer trying to convince the Field Office Director of the Charlotte, North Carolina office to lie in a press briefing and indicate that 90% of the migrants detained in a community-wide sweep have criminal records; the FOD twice corrects him that the correct figure is 30–35%, meaning the remaining 70% are harmless field workers, hotel employees, construction workers or single mothers with U.S. citizen children.
Even though political appointees such as DHS Secretary Kirsjten Nielsen and AG Sessions were willing to blatantly lie to Congress about the motivation and consequences of such cruel policies, they were still tossed out by the president when the reality on the ground impaired their ability to achieve deportation numbers sufficient to satisfy the Nativist in Chief. Ultimately it took an even more barbaric policy, the Migrant Protection Protocol (MPP), another unlawful executive order, to force legitimate asylum seekers to remain on the Mexican side of the border while their cases were piling up in the bureaucracy. MPP is Orwellian double-speak, because the migrants, rather than being protected, are being sent into circumstances where they are easy prey for cartels targeting them and are notoriously subject to kidnappings, rapes, robberies and murders. No migrant being forced to wait for months in tents or temporary shelters along the border is safe.
Most disappointing to me as a Supervisory Asylum Officer was how management at the Arlington Asylum office, as soon as the MPP operating instructions came down in early 2019, was so willing to coerce asylum officers into violating their oaths to uphold the Constitution and the laws of the U.S. At an internal meeting with management and the asylum officers, supposedly to hash out the ground rules of this new MPP program, one of my officers complained that he felt both ethically and morally conflicted for the first time in his career, knowing that forcing asylum seekers to wait in Ciudad Juarez, one of the most dangerous cities in the world, was a violation of his oath and his training to offer protection to asylum seekers.
I wondered how our managers could justify to themselves the cruel and unlawful policies they were insisting that their subordinates carry out. Were they hoping that the federal courts would soon overturn the blatantly illegal policy and they would thus be off the hook? Were they thinking that at least they, as a federal officer with some limited power, were better than whoever might replace them if they were to resign? I’m sure that is how many attorneys and jurists, working within totalitarian regimes, justify their collaboration and acceptance of policies that are dehumanizing and deadly. When they were asked by their subordinates for justification they threw up a disingenuous wall of semantics, and when asked what procedures Customs and Border Protection were following in the context of MPP, they were told, “We believe CBP knows how to do their jobs.” Basically, just shut up and do what we tell you to do.
I was one of the first supervisors sent to oversee our officers conducting the new MPP screening interviews at the San Ysidro border crossing south of San Diego. Under the new guidelines the migrant must demonstrate to the asylum officer that it is “more likely than not” that they would meet serious harm if forced to wait for many months in Mexico until returning for an audience in front of an immigration judge, in order to be exempted from the requirement of waiting in Mexico. One of my very conscientious officers decided to refer for protection a young Guatemalan woman who had been held captive in an apartment in Tijuana by her domestic partner and brutalized and assaulted, and then viciously stalked when she fled from the dwelling. She should be allowed to remain in the U.S. pending her court date because it was clearly too dangerous for her to return to where her tormentor could easily locate her. I reviewed the interview notes and consulted with my officer and I agreed that it was a good case for protection. We informed CBP and our chain of command of the decision. The next day I received a call from the Deputy Director of the Arlington Asylum office., Jennifer Rellis. I was told that we had to be very careful with our assessments of the MPP cases because the “front office” had eyes on these cases. I was instructed to overturn our decision and to deny the young woman protection. And I was instructed that, going forward, any time I was inclined to approve any of my officers’ decisions to grant protection, I must first have one of my managers also review and sign off on it. There was no such requirement if we decided to deny protection to an applicant. Thus a presumption was created that we should deny protection in our MPP adjudications, a reversal of all of our training as asylum and refugee officers, and a blatant violation of our own statute and of U.N. refugee guidelines. In the following months this presumption against protection has continued to be enforced.
I wondered how Ms. Rellis could live with herself in so callously stripping me of my discretion to afford protection to legitimate refugees, given her training as a humanitarian lawyer. I’m sure if asked, she would argue we have no choice but to comply, and we can still protect asylum seekers within the limits of this new program. But there was no articulable reason why she would order me to enact an unlawful presumption of ‘not qualified’ where none exists in our asylum statute, regulation, case law, or international refugee law. The fact that such managers, whom we had always believed were motivated by their own humanitarian commitments, would so enthusiastically fall in line with a blatantly unlawful program caused great distress among the ranks of asylum officers. Many of my colleagues sought reassignment to other divisions within USCIS or even left the agency altogether. When I received that phone call I also began making arrangements to leave what had become a compromised agency.
Only months after I departed in June, the much-beloved Director of the Asylum Division was reassigned by the unlawfully appointed Acting USCIS Director Ken Cuccinelli to a management position in an uncontroversial department of USCIS. It was conceded that he had lamented to his asylum officers in an internal e-mail that it was unfortunate that the troops were being asked to adjust to these new policies with no forewarning or opportunity to adequately train.
It is remarkable that American Federation of Government Employees Union Local 1924, the union that represents asylum officers, has submitted “friend-of-the-court” briefs in numerous lawsuits against the administration’s attempts to implement the MPP program and otherwise curtail and dismantle the asylum program; and that Union Local 1924 President Michael Knowles has testified before Congress in opposition to such policies.
Jeff Session’s replacement AG William Barr has shown himself willing to continue the dismantling of our asylum program. He issued an edict that immigration judges would no longer have the discretion to grant bonds to asylum seekers in custody — clearly another attempt to discourage applicants from seeking shelter in the U.S. through the use of cruelty. This is an issue that is especially dear to my heart, as it has always been my principle that no asylum applicant should remain detained a day longer than necessary for routine administrative procedures. In fact, I testified before the Senate Judiciary Committee in 2013, at a time that comprehensive immigration reform was optimistically expected to be passed, in favor of granting immigration judges additional authority to issue bonds. My proposal wound up in the Senate’s draft legislation, which regretfully was never even taken up by the House. (In a meeting with Senator Marco Rubio’s immigration staffer I was assured that “the Senator is behind your proposals 100%.” During his subsequent presidential campaign in 2016 Rubio claimed he had never been in favor of comprehensive immigration reform). Again, several weeks after Barr’s edict against bond, a federal court blocked Barr’s draconian and heartless ban on conditional release from custody of asylum seekers from taking effect.
From the earliest campaign rallies in 2016, Trump has used fear and hatred of others to divide Americans and energize his base. The forefathers of most European Americans gained entry to the U.S. in exactly the same fashion as all those “illegal aliens” at our southern border; by showing up and asking for admission, at Ellis Island, at a time when there were no immigration controls in place other than routine screening for communicable diseases. Today the vast majority of Americans would not qualify for admission if measured against the standards this administration is trying to implement.
I was a refugee officer in the field at the time of the current President’s election. My colleagues and I were already conducting “extreme vetting” on Syrian, Iraqi, Somali, and numerous other populations, in conjunction with security resources of the CIA, FBI, Defense Intelligence Agency and Pentagon, years before this President decided to use fear as a means of control. My last assignment at the Refugee Affairs Division in 2015, before transferring to the asylum program, was to assist in the heightened vetting of all Syrian applicants at headquarters. Ironically, it is demonstrable that, on average, Syrian and Iraqi migrants to the U.S. are among the highest educated migrants in sciences and technology.
Refugee Admissions Decimated
During the last year of the Obama administration, in the context of the worst international refugee crisis since the end of the 2nd World War, the Obama administration asked that the Refugee Affairs Division increase refugee admissions from the already admirable number of 90,000 in fiscal year 2016 to 110,000 for 2017. However, on the heels of the Muslim ban came the new administration’s pronouncement that rather than 110,000, in fiscal year 2017 the program would be suspended for the rest of the year, thus grounding all refugee officers. . In 2018 the admissions was capped at 45,000 refugees, and it was determined that a ceiling of 30,000 admissions would be set for 2019. At a time when the U.S. should have been manning the bulwarks of refugee protection (Germany received a million refugees in 2015, comparable to the U.S. taking in 4 million) the U.S. effectively withdrew from the field, sending the signal that the U.S. no longer considers itself a leader in the world for refugee protection. A ceiling of 18,000 was set for fiscal year 2020, and this amount was only agreed to after push back from the Pentagon in reference to promises we had made to allies and interpreters working with our troops in the field in Irag, Afghanistan and Syria.
In 2018 Director Cissna also made the shocking announcement that USCIS would close all of its overseas offices, passing numerous tasks onto the State Department and domestic offices. The offices, established over a period of decades in such countries as Kenya, Ghana, South Africa, China, South Korea, Thailand, Mexico and Peru, primarily function as facilitators for family unity and refugee operations. Perhaps the first time that a federal bureaucracy has voluntarily given up turf, but in line with the administration’s seeming loathing for family unity.
The Myth of Skilled Migration
When then Chief of Staff General Kelly, formally DHS Secretary, disparagingly pronounced that most Central American migrants are “rural” migrants, as though of less value than presumably better educated “urban” migrants from white European countries, I took personal offense. My grandfather Grussendorf migrated with his family from a rural village in Lower Saxony, Germany at the end of the 19th Century at a time when there were no immigration controls at Ellis Island. He settled in the farming community of Grand Rapids, Minnesota, where he ran a farm and begat five children, one of whom became a high school math teacher; one became a state judge, one opened a nursery in Duluth, and one, my father, became a highly decorated Marine colonel, former company commander at the WWII landings at Saipan, Iwo Jima, and Okinawa. (I was born at Camp Pendleton). The state judge’s children included Cousin Benny Grussendorf who became Speaker of the House in the Alaskan Legislature. My father’s children included a Navy Captain and minister, a Navy enlisted man and transportation professional; a political activist, and an immigration judge. My brother the Navy Captain’s children include an Air Force flight surgeon and base hospital director; a veterinary, and a multi-lingual translator with her own business in France. All of these offspring were imbued with strong “rural” family values. That’s how migration works.
The idea of skilled-based migration, to be administered by a point system involving education, employment background, and language skills, isn’t all that bad in and of itself. Our close alleys Canada, the U.K., Australia and New Zealand all administer a version of this skills-based migration. The problem is the suggestion to eliminate family-based migration, when clearly the vast majority of our nation’s people, including the President’s own family, have benefited from it. The better idea is to double the current admissions level of permanent residents, half to be drawn from a skills-based system. It is the unnaturally low numbers of annual permanent resident admissions that is partly responsible for the log-jam of our immigration system, in today’s world where there is such an interest in immigration to the U.S., and given that our otherwise native-born population is in decline.
We must recognize that the recent surge at our southern border is not some kind of existential challenge to the nation’s existence, as seen in a vacuum, but rather only one component of the world-wide refugee crisis, a symptom of wars and world-wide insecurity. The long-term solution to any refugee crisis is always peace and prosperity in the country/region that is generating the refugees. Only peace and stability in Syria and northern Africa can allay the human waves of refugees into Europe. Only a Marshal-type program for the northern triangle countries, coupled with short term humanitarian protection for those fleeing eminent death, can resolve the crisis at our southern border.
And finally, regarding the present state of the U.S. Immigration Court system under this white nationalist administration, I’d like to quote my friend and colleague, Judge Paul Schmidt:
Once upon a time, there was a court system with a vision: Through teamwork and innovation, one of the world’s best administrative tribunals guaranteeing fairness and due process for all. Two decades later, that vision has become a nightmare. (…)
Today, the U.S. Immigration Court betrays due process, mocks competent administration, and slaps a false veneer of “justice” on a “deportation railroad” designed to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting.
It cruelly betrays everything our country claims to stand for and baldly perverts our international obligations to protect refugees. In plain terms, the Immigration Court has become an intentionally “hostile environment” for migrants and their attorneys.
As Paul points out, beyond all of the regime’s racism, illegality, and immorality that has already been exposed in the media, the deep corruption, cowardice, and cruelty of those carrying out the program is simply stunning! It’s precisely how authoritarian, anti-democracy, illiberal regimes of the past like Nazi Germany, Soviet Russia, and Mao’s China operated.
Inflicting “trauma for deterrence” on vulnerable humans is a “war crime” and a “crime against humanity,” plain and simple — regardless of the unlikelihood that regime’s many “perps” will be brought to justice within their lifetimes.
To those who doubt it, when the pandemic subsides, take a tour of the Holocaust Museum. The disgraceful conduct of the German judiciary and civil service is eerily similar to what Paul describes at DHS and EOIR.
We also must remember that despite being well-aware of the Trump/Miller racist-motivated immigration agenda, and the patent falseness of the legal and factual pretexts cooked up by the regime and its ethically challenged lawyers to provide “thin cover” for illegality and inhumanity, a Supremes’ majority improperly intervened to overrule lower Federal Courts and “greenlight” gratuitous cruelty and abuses of humanity! This process, known as “Dred Scottification” (“dehumanization of the other”) has carried over into the Supremes’ majority’s disgraceful mistreatment of African Americans, Hispanic Americans, and other minorities in our society. It’s one of the key reasons why we have actually moved further away from racial equality and racial harmony in our society since the advent of the far-right judiciary.
Paul also exposes one of the biggest “shams” advanced by the racist right and their congressional supporters: That we must build an Immigration Court capable of deporting everyone in the U.S. without authorization. To state the obvious, this would be a practical impossibility, as well as an economic and social disaster — destabilizing industries and communities throughout the U.S., at a high cost, with no overall benefit.
It’s insane to charge the Immigration Courts with deporting everyone! That inevitably leads to mindlessly and exponentially increasing the number of judges without thinking about the training, support, technology, and wise policies necessary for them to operate successfully, fairly, and efficiently. Moreover, at some point, aimlessly increasing the number of judges without fixing the disgraceful deficiencies in the current system merely adds to the chaos, disorder, and the gross inconsistencies for which the system has become notorious.
Obviously, the system must be fixed before a rational decision can be made on whether or not to expand it. Fixing the current system also lays the important groundwork for the necessary creation of an independent Article I Immigration Court.
No, the answer is to invest in fixing the current system to get it operating, as it originally was intended, as a high quality, modern, efficient court system that guarantees fairness and due process for all.
With approximately 500 Immigration Judges already on board (not, of course, all the best qualified judges to carry out the mission — but that’s a problem for later), the reasonable annual capacity of the system is around 250,000 (500 judges x 500 cases/year) to 300,000. That means that more than one million of the current “deadwood” cases currently being warehoused on the EOIR docket by politicos at EOIR and DHS with no practical plan in place for ever completing them, must be removed and returned to DHS.
That’s actually a job for a new, non-racist, professional DHS. But, given past spotty to downright contemptuous performance by DHS field officials, the Immigration Judges must be given strong authority to, where necessary, close and remove cases even in the face of DHS opposition.
This means, of course, reversing “Gonzo Apocalypto” Sessions’s absurdly wrong decision in Castro-Tum. But, return to the prior status-quo is not enough!The BIA and the Immigration Judges must be empowered to take even more aggressive actions to close cases when necessary to do justice and to force the DHS to respect and comply with docket capacities.
Then, as Paul suggests, like all other law enforcement agencies in the U.S., DHS enforcement must be required to develop strategies and prioritize cases in a manner that will not exceed the 250,000 per year capacity of the Immigration Courts. A large scale legalization program for those already here, a much more robust overseas asylum program, particularly in the Northern Triangle, and more “user friendly” legal programs to bring in needed workers, on either a temporary or permanent basis, would be great starting points to “rationalizing” the immigration system.
We thereby could end “Aimless Docket Reshuffling” as it has been practiced and expanded by DOJ & DHS politicos for the past two decades while taking the pressure off the Immigration Courts to do anything other than their only and only mission: through teamwork and best practices, guaranteeing fairness and due process for all who come before these courts.
The key to making this happen: Immediate disempowerment of the deadly ongoing “Clown Show” 🤡☠️⚰️ in EOIR “management” and at the BIA and replacing them with members of the NDPA: experts in asylum law, due process, practical scholarship, problem solving, and best practices. Then, and only then, will we see the restoration and progressive advancement of due process and humanity in the disgracefully broken U.S. Immigraton Courts. Without immediate EOIR reform, there can and will be no “equal justice for all” in the U.S. justice system! And, that’s bad news for all of us!
We at CLINIC read this today. The terrible aspects of this proposed rule include seeking to:
Overrule Arrabally
Require motions to reopen/reconsider to include a statement concerning whether the noncitizen has complied with their duty to surrender for removal. If the noncitizen has not done so, that will be considered a very serious unfavorable discretionary factor.
Disallow reopening based on a pending USCIS application, stating that if a motion to reopen or reconsider is premised upon relief that the immigration judge or the BIA lacks authority to grant, the judge or the BIA may only grant the motion if another agency has first granted the underlying relief. Neither an immigration judge nor the BIA may reopen proceedings due to a pending application for relief with another agency if the judge or the BIA would not have authority to grant the relief in the first instance.
Allow immigration judges and the BIA to not automatically grant a motion to reopen or reconsider that is jointly filed, that is unopposed, or that is deemed unopposed because a response was not timely filed.
Define termination and explains that termination includes both the termination and the dismissal of proceedings, wherever those terms are used in the regulations.
Assess that assertions made in the motions context that are “contradicted, unsupported, conclusory, ambiguous, or otherwise unreliable” do not have to be accepted as true.
Clarify that an adjudicator is not required to accept the legal arguments of either party in a motion to reopen or motion to reconsider as correct.
Codify that assertions made in a filing by counsel, such as a motion to reopen or motion to reconsider, are not evidence and should not be treated as such.
Prohibit the Board or an immigration judge from granting a motion to reopen or reconsider unless the respondent has provided appropriate contact information for further notification or hearing.
Specify that neither an immigration judge nor the BIA may grant a motion to reopen or reconsider for the purpose of terminating or dismissing the proceeding, unless the motion satisfies the standards for both the motion, including the new prima facie requirement of this proposed rule, and the requested termination or dismissal. (citing to S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2019) (holding that the authority to dismiss or terminate proceedings is constrained by the regulations and is not a “free-floating power”)).
Codify Matter of Lozada requirements and makes clear that “substantial compliance” is insufficient, plus adds additional onerous requirements (e.g. state bar complaint AND a complaint to EOIR disciplinary counsel is required).
Require respondents to first file a stay request with DHS and have DHS deny it before they can file a stay request with EOIR.
A few bright spots:
It mostly gets rid of the departure bar, though it does still contain a withdrawal provision based on a noncitizen’s volitional physical departure from the United States while a motion is pending.
It makes it clearer that you can file an IAC claim based on the ineffective assistance of a notario.
Considers the that new asylum application would be considered filed as of the date the immigration court grants the motion to reopen.
Thank you,
Michelle N. Mendez (she/her/ella/elle)
Director, Defending Vulnerable Populations Program
Catholic Legal Immigration Network, Inc. (CLINIC)
***********************
Peter Margulies writes:
Apart from the modest bright spots you mention, this is a pernicious rule that would curb noncitizens’ access to precious relief. It’s sobering to see the single-mindedness with which the current administration has attacked the precious remedy of asylum, such as the horrific asylum bars enjoined by ND CA Judge Susan Illston. H/t to profs who signed the amicus in Pangea Leg. Servs. v. DHS on which Shoba Sivaprasad Wadhia of Penn State, Susan Krumplitsch of DLA Piper & I served as co-counsel–we’ll be reaching out again soon for the CA9 round on that case & Nat’l Ass’n of Manufacturers v. DHS (the nonimmigrant visa ban challenge).
Thanks, Michelle and Peter, for the continuing excellence of your work!
But, let’s face it, this problem isn’t going to be solved by commenting and even suing. It will only be solved if, and when, the Biden Administration evicts the dangerous, scofflaw, deadly Clown Show 🤡 @ EOIR HQ, including the entire BIA, and replaces it with folks like you and your NDPA fellow experts and fearless fighters for justice!
I watched this show before, to lesser degrees! Far, far too many times!
Don’t miss the point here, friends! Briefs, comments, law suits, and op-eds are nice. But, without effective total outrage and actual political intervention directed at the incoming “powers that be” in the Biden Administration, it’s going to be be a repeat of 2008!
The deadly EOIR Clown Show happily and arrogantly march on killing folks, distorting the law, and implementing the Miller agenda, giving the middle finger to due process, and we (mostly YOU, since I’m retired) will remain on the outside suffering, risking heath, safety, and sanity, and once again ineffectively bitching and moaning.
Sally Yates as a leading contender for AG is NOT, I repeat NOT, good news. I was on the “inside” at EOIR during the Lynch-Yates debacle.
She never lifted a finger to stop Aimless Docket Reshuffling, Family Detention, children going unrepresented, indefinite detention, incompetent Immigration Court management, biased “judicial” selections that effectively excluded private sector experts, educators, and advocates like YOU, and intentional skewing of the law by the BIA against Central American asylum seekers.
She might have spoken out against private detention of criminals, but not so much when it came to substandard private detention of innocent families with children whose “crime” was seeking asylum through our legal system. Really, how outrageous can it get! Yates helped establish the “New American Gulag” (“NAG”) that Miller & Co. have so gleefully and unlawfully expanded and weaponized!
She and her boss, Lynch, never bothered to “connect the dots” between civil rights and the legal rights and humanity of immigrants and asylum seekers. There can be no “equal justice under law” in America until the rights and humanity of immigrants and asylum seekers are upheld against “Dred Scottification” and intentional “dehumanization.”
For Pete’s sake, folks, during the Obama immigration disaster, holdover GOP right-wing operatives @ EOIR were rewriting the precedents in favor of their restrictionist agenda while YOU and others like you in the NGO and advocacy community were totally shut out, not given the time of day, and forced to spend eight wasted years in “damage control” rather than rolling out a progressive human rights, due process, practical problem solving agenda that would have saved lives (and, perhaps, not incidentally, created more USCs).
I’ve done what I can. I’ve written, I’ve agitated, I’ve given speeches, I’ve spoken to the Transition Team, written to my Democratic legislators, signed comments, amicus briefs, published my “mini essays,” and riled up and tried to inspire every student I can reach for the NDPA.
But, I’m pretty much at my wit’s ends watching the fecklessness and political ineptitude of the immigrant advocacy, human rights, and NGO communities! We were the backbone of the resistance to tyranny over the last four years and a key force in the Biden victory.
If we (YOU) don’t exercise some real political muscle with the incoming Administration NOW, the next four years are going to be just as grim, maddening, deadly, and disastrous for migrants (and their advocates, YOU) as the preceding two decades! We need the experts from the NDPA on the inside, calling the shots, not sitting in the waiting room while lesser talents cluelessly play out the game behind closed doors! Human lives and human dignity depend on the NDPA getting to play and lead!
It’s not rocket science! But, it does involve political will, and some effectively applied political outrage!
When you read about folks like Sally Yates and Jeh Johnson (both complicit in past human rights disasters) getting serious consideration for AG, and read that the Biden DOJ agenda is all about civil rights (what, indeed, are immigrants’,asylum seekers’, and humans’ rights, if not civil rights?) and criminal justice reform (not going to happen as long as “Dred Scottification” of immigrants is allowed to continue) with ZERO mention of ousting the EOIR kakistocracy and radically reforming the Immigration Court into a progressive, due-process, human rights model judiciary of the future (should be JOB #1 @ DOJ), you know that our message is NOT being heard, nor is it being taken seriously, by the “political powers that be” in the incoming Administration!
Get outraged, get mad, speak up, speak out, act up, sue, protest, raise Hell until somebody on the incoming team pays attention to the biggest (entirely fixable, but only with will and the right people) crisis in our failing justice system!
It’s going to take the new faces and better thinking of the NDPA, not the same folks who failed to fix the system in the past and swept life-destroying problems under the carpet, to get the job done!
If nothing else, we owe it to the migrants who have lost their lives, loved ones, and/or seen their futures needlessly trashed by the last three Administrations to stand up for due process, justice, and human dignity for everyone in America!
Suzanne Suzanne Gamboa, Political Editor, NBCLatino, NBC NewsDate: October 21, 2013 Place: Washington, DC Credit: Maria Patricia Leiva/OAS Creative Commons LicenseAl Cardenas Last of A Dying GOP Breed? Al Cardenas speaking at CPAC FL in Orlando, Florida. Gage Skidmore, Photo Creative CommonsAlejandro Mayorkas DHS Secretry – Designate Official DHS Photo Public Domain
Alejandro Mayorkas, the first Latino chosen for President-elect Joe Biden’s Cabinet, will head a Department of Homeland Security that is expected to drastically overhaul President Donald Trump’s hard-line immigration policies, as well as put Mayorkas at the forefront of the new administration’s anti-terrorism strategy.
Mayorkas will be the first Latino and first immigrant to head the Department of Homeland Security, if confirmed by the Senate. The highest-ranking Cuban American in the Obama administration, Mayorkas was deputy secretary of DHS under then-Secretary Jeh Johnson, and before that was the director of Citizenship and Immigration Services, a part of DHS that oversees granting citizenship and other immigration benefits.
Mayorkas, if confirmed, will take over the nation’s third-largest agency in terms of employees, one that was created after the Sept. 11, 2001, terrorist attacks and that oversees several smaller agencies such as Customs and Border Protection, Transportation Security, the Coast Guard and the Secret Service.
The Trump administration has drastically transformed the nation’s immigration system with over 400 executive actions — including refusing entry to asylum-seekers, taking children from parents at the border and restricting travel to the U.S. by Muslims.
There will be pressure on the Biden administration to act quickly on immigration and uphold pledges he made on the campaign trail, such as ending travel bans and protecting young immigrants, known as Dreamers, and to take such actions in the first 100 days of his administration.
Much of Trump’s immigration policy was the work of his adviser Stephen Miller, who cited and promoted white nationalist beliefs in emails leaked to the Southern Poverty Law Center last year.
. . . .
**********************************
Read the rest of Suzanne’s report at the link.
Al Cardenas has been one of very few Republicans to appear on “Meet the Press” over the past four years who has 1) dealt with facts, and 2) said something worthwhile. The normal GOP guest on MTP is either a Trump toady or a disingenuous apologist for the worst and most corrupt Administration in U.S. history.
I do suggest that Al needs to sit down and have a “heart to heart” with his Senate buddies Marco Rubio and Ted Cruz as well as lots of Cuban-Americans in Florida about the future of America. They don’t seem to be on the same page, or indeed even in the same universe, as Al and the substantial majority of American voters.
This also illustrates the vital importance to DHS reform of a strong, due process, human rights, efficiency oriented, “best practices” EOIR with expert judges from the NDPA in leadership positions and on the BIA (and eventually the Immigration Courts). In the past, true reform at DHS has often been inhibited by refusal of supervisors and line officials to follow “policies sent out from Washington” specifically designed to enhance individual justice, insert reality, and promote docket and litigation responsibility and efficiency. In other words, the type of practical, reasonable, humane, experience-based prosecutorial discretion policies that every other law enforcement agency in the U.S., save DHS, routinely follows.
DHS reforms won’t be fully effective unless preceded by an EOIR under new leadership with an expert, courageous, independent due process committed BIA unswervingly dedicated to protecting the rights of asylum seekers and other migrants and effectively requiring DHS to operate within the law and conform to rational, practical, non-discriminatory policies. The talent is out there, just waiting be tapped!
A friend recently asked me what I expected to happen when the U.S. asylum system is reinstituted as President-Elect Biden and Vice President Harris have pledged. Here’s my answer:
[The Biden Administration] will get them [asylum applications] adjudicated in a timely and professional manner; more will qualify for protection, thereby allowing more of the work to be shifted to the Asylum Office; the refugee program will expand; America will prosper!
I hope I’m right. But, it won’t happen without a “new awakening and some new faces” at EOIR. Remember, it’s not rocket science!
Dumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under license“Sheltering in Cages” by John Darkow Reproduced under licenseJeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com Republished under license
CRUELTY TO migrant children, a trademark of the Trump administration’s immigration policy, did not cease when officials reversed course in the face of public outrage two years ago and stopped wrenching toddlers, tweens and teens from their parents — with no plan or process to reunite them. It has continued apace under cover of the pandemic, which the White House has used as an all-purpose pretext for ignoring child-protection laws and diplomatic agreements governing asylum, and, without even a nod to due process, expelling unaccompanied children who cross the border seeking refuge.
A federal judge has now halted that practice even as he acknowledged the administration’s far-reaching powers in the midst of a public health emergency. Those powers are broad, U.S. District Judge Emmet G. Sullivan ruled, but do not enable the government to send minors packing without affording them a chance to have their asylum claims heard.
At least 13,000 children have been detained by Border Patrol officers and swiftly thrown out of the country under an emergency decree that has effectively sealed off the southern border to most migrants since the spring. Administration officials justified the measure in the name of protecting the country from a potential influx of migrants carrying the coronavirus — but performed no testing, and provided no data, to substantiate their stance.
Given infection rates in Mexico and Central America, it may be reasonable to assume that some migrants, including unaccompanied minors, might have contracted covid-19. It may also be the case, however, as the ACLU argued in court, that the practice of expelling young migrants actually exposes U.S. border authorities to more risk — in the course of holding them while flights are arranged to their home countries in Central America or elsewhere — than they would otherwise face if the migrants were placed in shelters that have the capacity to adopt social distancing and other precautions. Judge Sullivan, for his part, said the government had asserted its “scientific and technical expertise” to justify its policy of evicting young migrants — but provided none by way of actual evidence.
As it happens, it occurred to at least some administration officials, early on in the pandemic, that migrant children deserved some special consideration. When the policy of suspending asylum was first rolled out, children who crossed the border were exempted. That was quickly reversed, however, with a spokesman saying that minors would be returned to their countries of origin on a “case by case basis.” In the ensuing months, however, virtually all have been expelled.
Anti-trafficking and other laws provide for protections for unaccompanied minors who arrive in this country. The administration has seized on the pandemic to disregard those, along with other long-standing measures and practices that set procedures for migrants seeking refuge here. A more humane approach, in line with American traditions and values, would have established a process for testing and quarantining, at least for migrant children, as they pursued asylum claims. But humane policy is anathema to the Trump administration, and the result is thousands of children who have been subjected to unwarranted hardship and risk.
*********************
Remembers, the victims are largely dead, deported, or still suffering! The “perps” — including the “Perp in Chief,” “Gruppenfuhrer Miller,” Jeff “Gonzo Apocalypto” Sessions, “Wolfman the Illegal,” and “Billy the Bigot” remain at large, even profiting from and bragging about their “crimes against humanity.” This is a “functioning democracy?” No way!
We’ve all been subjected to the disingenuous writings of pundits babbling on about the resilience of American democracy in the face of a fascist president and his corrupt anti-democracy party of cowards and enablers. Hogwash!
Make no mistake about it, American democracy is on the ropes! Basically, we’re watching a corrupt President who lost the election by over 6 million votes and 74 electoral votes engage in systematic frivolous, abusive, baseless litigation intended to destroy our nation, undermine our national security, and disenfranchise voters. It’s a disgusting, overtly racist, dishonest performance that would have any other individual in America and his motley band of unethical lawyers in jail for contempt and conspiracy to obstruct justice! But, Trump and his cronies continue to operate outside the law!
We owe our existence as a nation less to any “structural integrity” and much more to a relatively few courageous, smart, highly motivated members of the resistance: immigration, human rights, and civil rights lawyers; African American women; non-right-wing journalists; Democratic legislators; scientists and medical professionals; a limited number of Federal Judges, mostly at the District Court and Immigration Court levels (and specifically excluding any current BIA Member, EOIR “Manager,” or Supreme Court Justice not named Sotomayor, Kagan, and (sort of) Breyer); courageous DACA kids; and some Federal Career Civil servants not working at ICE or CBP.
The “resilience of American institutions” view is largely that of a privileged minority who haven’t been deported to possible torture or death without any process at all (let alone “due” process), haven’t been illegally separated from beloved family members, aren’t rotting in private prisons (the “New American Gulag”) for the “crime” of seeking justice, aren’t struggling with unemployment or difficulty putting food on the table while Moscow Mitch and his elites focus on confirming unqualified Federal Judges, haven’t had family members shot by the police, haven’t had family members unnecessarily suffer and die because of the worst President in U.S. history’s maliciously incompetent failure to provide leadership and any systematic strategy for controlling a pandemic, and haven’t had to put their lives and professional reputations on the line in a failing Justice system that has enabled grotesque abuses by the likes of Jeff “Gonzo Apocalypto” Sessions, Billy the Bigot Barr, Noel Francisco, and the rest of their band of unethical Government lawyers.
The Biden Administration must do a thorough housecleaning of the corrupt DHS and DOJ bureaucracies that carried out the illegal, immoral, racist, White Nationalist agenda developed by neo-Nazi Stephen Miller and his cowardly gang of brownshirts!
And, as a nation, we need to think carefully about the implications of a life-tenured Supreme Court majority that, since their initial feckless performance on the “Muslim Ban” cases, time and time again failed to forcefully and unanimously stand up for our democracy, human decency, and those defending them in the face of overt, racism and hate driven, Executive tyranny! A Supremes’ majority that has disgracefully and spinelessly embraced the “Dred Scottification” of “the other” (mostly immigrants and those of color). It’s not rocket science! And some of our “elite law schools” seemed to have forgotten to teach “Con Law 101” and “Basic Ethics” to aspiring right wing judges!
It’s less about institutions than it is about the courageous individuals who uphold them! And, our future depends on the Biden-Harris Administration putting these folks “in the game” to insure that an unmitigated disaster like the Trump regime, it’s rampant illegality and inhumanity, and its “malicious incompetence” can never, ever, happen again! And, we must at least start the process of developing a better and more courageous Federal Judiciary for the future!
Due Process Forever! Complicity in the face of tyranny, never!
As this Court has recognized, “when [an] alien appears pro se, it is the IJ’s duty to ‘fully develop the record.’” Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002) (quoting Jacinto v. INS, 208 F.3d 725, 733-34 (9th Cir. 2000)). Despite this long-recognized obligation, the record in this case demonstrates that this duty is not always fulfilled; and that the consequence may be unfairness and injustice to the pro se petitioner who is unable to develop the record without guidance and assistance. We respectfully submit that this Court should use this case to provide much-needed guidance to IJs on the scope of their duty to work with pro se respondents to elicit the information necessary to develop the factual record. Based upon our own extensive experience, we are of the view that this can be done efficiently and effectively by conscientious IJs, so long as the rule that they are required to do so is clear.
******************
Thanks so much to out “Team of Pro Bono Heroes” at Sullivan & Cromwell, NY:
Philip L. Graham, Jr.
Amanda Flug Davidoff
Rebecca S. Kadosh
Joseph M. Calder, Jr.
This regime has appointed mostly judges lacking experience representing individuals in Immigration Court and then compounded the problem with:
Mindless “haste makes waste” enforcement gimmicks (often supported by knowingly false or misleading narratives) imposed by political hacks at DOJ and Falls Church;
A BIA lacking expertise and objectivity that instead of focusing on due process for those in Immigration Court, spews forth “blueprints for denial and deportation” without regard for statutory, Constitutional, and human rights;
A system that has elevated “malicious incompetence” and “worst judicial practices” to a “dark art form.”☠️
TIME FOR COURAGEOUS NEW IMMIGRATION LEADERSHIP!
By Paul Wickham Schmidt
It’s time for the “EOIR Clown Show” in Falls Church to go! Bring in competent jurists and administrators from the NDPA: practical scholars and problem solvers with real life skills developed by saving lives from this broken and biased system. Real jurists with expertise in human rights and courage, who will make due process, fundamental fairness, humane values, and “best judicial practices” the only objectives of the Immigration Courts. Jurists who will courageously resist political interference and improper and unethical weaponization of the Immigration Courts by any Administration.
Let the incoming Biden-Administration know that you won’t accept failed “retreads” from the past and “go along to get along” bureaucrats running and comprising what is probably the most important and significant court system in America from an equal justice, social justice, constitutional development, and saving human lives standpoint.
This is the “retail level” of our justice system: Thefoundation upon which the rest of our legal system all the way up to a tone-deaf, flailing, failing, and generally spineless Supremes stands! This is a court system that the Biden Administration can fix without Mitch McConnell!
The members of the NDPA are the ones who have been fighting in the trenches (and at the borders) to save lives, advance social justice, insure equal justice for all, end institutional racism, and preserve our democracy in the face of a tyrannical, unscrupulous, corrupt, racially biased, anti-democracy regime and its enablers! Many have sacrificed careers, health, not to mention financial security in this fight!
Don’t let those who watched from the sidelines, above the day-to-day fray, or were part of the problem swoop in and take control after the battle has been won!
Get mad! Get vocal! Get active! Call everyone you know in the incoming Administration! Demand that the NDPA and its members be given the leadership roles they have earned and deserve in remaking EOIR and reforming a thoroughly corrupt, politicized, and dysfunctional immigration bureaucracy across our Government!
Don’t let the Dems turn their back on achievable reforms and “shut out” the reformers and problem solvers in the advocacy sector (who have “carried the water” for Dems for decades) as has been the case in the past! Don’t let the mistakes and short-sightedness of the past destroy YOUR chances for a better future!
Don’t let timidity, ignorance, indifference, and fear of “rocking the boat” in the name of justice, due process, and human dignity replace “malicious incompetence” in Government!
Due Process Forever! Same old, same old, never! It’s time for real change and reform! It’s YOUR time to shine! Let YOUR voices be heard!
Paulina is a former Arlington Immigration Court intern and yet another “charter member of the NDPA” who is doing great things and changing the future of American Justice for the better. Educator, litigator, practical scholar, leader, inspirational humanitarian, all around nice person, and future Federal Judge, that’s Paulina!
“Tune in” tomorrow night and compare the bright future of due process, fundamental fairness, equal justice for all, ethical behavior, and practical applied scholarship with the ugly tone-deaf, intolerant, and ethics-free rant delivered to the Federalist Society by Justice Sam Alito last week. Alito accurately represented the unjustified grievances of the unreasonably embittered dark forces currently promoting a dysfunctional Federal Judiciary that failed as a body to stand up to the cruel, unconstitutional, racist-driven, authoritarianism of the now-defeated Trump regime.
Those are judges who shirked their constitutional and ethical duties and disgracefully embraced the regime’s White Nationalist driven invitations to “Dred Scottify” (dehumanize) large segments of society including African American and Latino voters, immigrants, asylum applicants, children, union members, etc. There is no excuse for such performance from judges who are supposedly insulated from political pressures by the unique privilege of life tenure.
Life tenure is life tenure. So, Alito & his arrogantly out of touch, anti-democracy, far-right buddies aren’t going anywhere soon.
But, it is essential to start putting the faces of a elitist, intentionally unfair, backward-looking, and intolerant society like him “in the rear view mirror” and start actively cultivating for our Federal Judiciary the large pool of much better qualified, smarter, fairer, more ethical, more diverse, more courageous, and more humane talent like Paulina and many of her colleagues out there in the private sector.
Not surprisingly given the groups who have fought to preserve democracy for all of us over the past four years, a disproportionate amount of that talent is in the immigration/human rights bar. As a nation, we can no longer afford the gross under-representation of this consistently “over performing” and courageous segment of the legal community on our Article III and Immigration Judiciaries!
Build a better Federal Judiciary for a better America!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”Recent Barr Appointee Prepares to Take Bench Fangusu, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
Gregory Chen @ Just Security lays bare the unrelenting nightmare @ EOIR:
The Trump administration has subjected America’s courts to extreme politicization and relentless assaults in the past four years. At the highest level, the deeply partisan battle over the Supreme Court confirmation of Justice Amy Coney Barrett transfixed the nation. But an even more radical transformation has been occurring in America’s immigration courts that has gone almost entirely unnoticed yet impacts hundreds of thousands of lives each year.
In a single term, Trump has filled the immigration courts with judges that hew to his anti-immigrant agenda and has implemented policies that severely compromise the integrity of the courts. Strained to the breaking point under a massive backlog of cases and a systemic inability to render consistent, fair decisions, the immigration courts require the urgent attention of the incoming Biden administration.
Most people apprehended by immigration enforcement authorities are removed from the United States without ever seeing a judge. The fortunate few who come before a judge are those seeking asylum or who need humanitarian relief that only an immigration judge can grant. Despite this critical role, these courts have suffered for years from underfunding, understaffing, and deep structural problems such as the fact that, unlike other courts, they 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. In recent years, the Justice Department has exercised its power to the maximal extent, stripping judges of fundamental authorities and rapidly appointing judges, to bend the courts toward political ends.
The intense public debates that accompany the Senate confirmation of Supreme Court nominees stand in sharp contrast to the lack of any public or congressional oversight into the appointments of immigration judges. During his time in office, President Donald Trump has appointed at least 283 out of a total of 520 immigration judges with no more fanfare than a public notice on the court’s website.
The Trump administration has not only chosen the majority of immigration judges but has also 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. Human Rights First found, for example, that 88 percent of immigration judges appointed in 2018 were former Department of Homeland Security (DHS) employees or attorneys representing the department.
Especially egregious are the appointments of the Chief Immigration Judge, who was previously the chief prosecutor for Immigration and Customs Enforcement and lacked any bench experience; the Chief Appellate Judge, who was a Trump advisor on immigration policy and a former prosecutor; and an immigration judge who worked for the Federation for American Immigration Reform, a known hate group. With the pace of appointments accelerating, it’s likely that even more judges conforming to that mold will be appointed before the administration’s term ends. In each of the most recent fiscal years, the administration has hired progressively more judges: 81 in 2018; 92 in 2019; and 100 in 2020.
Packing the Board of Immigration Appeals
The idea of packing the Supreme Court was heavily debated in the run-up to the election, but court-packing has already occurred on the Board of Immigration Appeals — the immigration appellate body — with the Trump administration’s addition of six new positions that raised the total size of the board from 17 to 23. The two regulations expanding the board were promulgated in rapid succession, each on an expedited basis that afforded no opportunity for public comment.
The expansion of the Board was another brazenly transparent move to fill the bench with judges unsympathetic to those appearing before them. Data from 2019 reveal that six immigration judges whom Attorney General William Barr elevated to serve as Board members had abysmal asylum grant rates — an average of 2.4 percent — that were far below the norm of 29 percent. Two of those judges denied every asylum case that year. In a manner of speaking, these judges never met an asylum seeker they liked.
The next year, Justice Department leadership tried to cull the nine appellate judges appointed by previous administrations by offering them buyout packages if they resigned or retired early. None took the deal, and thereafter, changes were made to their positions to make them more vulnerable to pressure from above and further intimidate them into leaving.
A judicial system that is buffeted so wildly by political waves cannot retain the public’s trust that it will deliver fair decisions. A similar attempt made at the end of the George W. Bush administration resulted in a hiring scandal that rocked the Justice Department. An oversight investigation found its leadership had violated federal law by considering immigration judge candidates’ political and ideological affiliations. Monica Goodling, Attorney General Alberto Gonzales’s White House Liaison, and other department staff had improperly screened candidates based on their political opinions by examining voter registration records and political contributions and asking about political affiliations during interviews. Now, at the request of eleven democratic senators, including Senator and Vice President Elect Kamala Harris, the Government Accountability Office has launched an investigation into the Trump administration’s politicization of the immigration courts.
Political interference with the immigration courts rises to the very top of the Department of Justice. Both Attorneys General Jeff Sessions and Barr vigorously exercised an unusual authority that enables them to overturn and rewrite the Board of Immigration Appeals’ decisions. In a series of opinions, Sessions divested judges of the powers they need to control their dockets, such as the authority to administratively close, continue, or terminate cases that are not suitable or ready for hearing. (Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018); Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (A.G. 2018); Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018).)
. . . .
******************
Read Gregory’s complete article at the link.
Have any doubt that EOIR is a deadly “hack haven?” Here’s an article about a Barr “judicial” appointee with no immigration experience. What’s his “claim to fame?” He’s a controversial state criminal judge from Illinois who “retired” several years after being rated “unqualified” for further judicial service by the Chicago Council of Lawyers (although other groups recommended him.)
According to a recent complaint filed with EOIR by an coalition of an astounding 17 legal services and immigration groups in the San Francisco area:“In unusually aggressive language, the coalition accused Ford of ‘terrorizing the San Francisco immigrant community,’ alleging that he dispensed ‘racist, ableist and hostile treatment of immigrants, attorneys and witnesses.’”
With tons of exceptionally well qualified legal talent out there in the New Due Process Army (“NDPA”) who are experts in immigration and asylum laws and who have demonstrated an unswerving career commitment to scholarship, due process, fundamental fairness, equal justice, professionalism, and treating all humans decently, there is no, that is NO, excuse for tolerating clowns like Ford in perhaps the most important judicial positions in the Federal System. Judges at the “retail level” of our system who decide hundreds of thousands of cases annually and exercise life or death authority over large segments of our population and set the tone and are the foundation for our entire justice system!
Enough of the malicious incompetence, institutionalizedracism, ignorance, intentional rudeness, wanton cruelty, worst practices, disdain for scholarship, dehumanization, destruction of the rule of law, hack hiring, and systemic trampling of human decency and human dignity! EOIR is an ongoing“crime against humanity” perpetrated by the Trump regime under the noses of Congress and the Article III Courts who have undermined their own legitimacy by letting this stunningly unconstitutional travesty continue.
The Biden-Harris Administration must fix EOIR immediately! It’s not rocket science! The talent to do so is ready, willing, and able in the NDPA!
There is no “middle ground” here, and the status quo is legally and morally unacceptable! If they don’t fix it, the incoming Administration will rapidly become a co-conspirator in one of the darkest and most disgraceful episodes in American legal history. One that literally poses an existential threat to the continuation of our nation!
This isn’t a “back burner” issue or a project for “focus groups.” It’s war! And, we’re on the front lines of the monumental battle to save the heart, soul, and future of America and our judicial system! Failure and fiddling around (see, Obama Administration) aren’t options!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleMe
FROM THE HEIGHTS OF KASINGA TO THE DEPTHS OF AMERICA’S DEADLY STAR CHAMBERS: Will The Biden Administration Tap The New Due Process Army To Fix EOIR & Save Our Nation?
By Paul Wickham Schmidt
Retired U.S. Immigration Judge
Courtside Exclusive
Nov. 12, 2020
I. INTRODUCTION — ABROGATION OF ASYLUM LAWS IN THE FACE OF EXECUTIVE LAWLESSNESS & RACIAL BIAS IS A NATIONAL DISGRACE
In Matter ofKasinga, I applied the generous well-founded fear standard for asylum established by the Supreme Court in Cardoza-Fonseca to reach a favorable result for a female asylum applicant. It was based on a particular social group of women of the tribe who feared persecution in the form of female genital mutilation, or “FGM.” I sometimes think of this as the “high water mark” of asylum law at the BIA.
Since then, proper, generous application of asylum laws to serve their intended purpose of flexibly, fairly, and consistently extending protection to those facing persecution has been steadily declining. The Trump Administration essentially overruled Cardoza-Fonseca and abolished asylum law without legislative change.
Both Congress and the Court have failed to stand up to this egregious abuse of the law, constitutional due process, and simple human decency that presents a “clear and present danger” to our nation’s continued existence.
Indeed, the performance of the Court in the face of the Administration’s overt assault on asylum has been so woeful as to lead me to wonder whether any of the Justices, other than Justice Sonia Sotomayor, have actually read the Cardoza-Fonseca decision. Certainly, most of them have failed to consistently and courageously carry forth its spirit and to grapple with their legal and moral responsibility for letting a lawless Executive trample the constitutional and human rights, as well as the human dignity, of the most vulnerable among us.
How did we get to this utterly deplorable state of affairs and what can the Biden Administration do to save us? Will they act boldly and courageously or continue the tradition of ignoring abuses directed against asylum seekers and the deleterious effect it has on our society and the rule of law?
I guarantee that racial justice and harmony will continue to elude us as a nation unless and until we come to grips with the ongoing abuses in the Immigration Courts — “courts” that no longer function as such in any manner except the misleading name!
II. BACKGROUND
To understand what has happened since Kasinga, here’s some background. In U.S. asylum law, there generally has been an “inverse relationship” between geography and success. The further your home country is from the U.S., the more generous the treatment is likely to be.
Thus, folks like Kasinga from Togo, or those from Tibet, Ethiopia, China, or Eritrea, with relatively difficult access to our borders, tend to do relatively well. On the other hand, those from Mexico, Haiti, Central America, and South America, who have easier access to our borders, tend to be treated more restrictively.
This reaction has been driven by a hypothesis with limited empirical support, but which has been accepted in some form or another by all Administrations, regardless of party, since the enactment of the Refugee Act of 1980. That is, the belief that human migration patterns are driven primarily by the policies and legal regimes in prosperous so-called “receiving countries” like the U.S.
Thus, generous and humane asylum policies will encourage unwanted flows of asylum seekers across international borders. And, of course, we all know that nothing threatens the national security of the world’s greatest nuclear superpower more than a caravan or flotilla of desperate, unarmed asylum seekers and their families trying to turn themselves in at the border or to the Border Patrol shortly after arrival.
Conversely, restrictive policies including rapid, unfair rejection, border turn-backs, mass detentions, criminal sanctions, family separation, denials of fair hearings, walls, border militarization, and hostile, often racially and religiously charged rhetoric, will cause asylum seekers to “stay put” thus deterring them and reducing the number of applications threatening our national security. In other words, encourage legitimate asylum seekers to “perish in place.” Often, these harsh policies are disingenuously characterized as being, at least partially, “for the benefit of asylum seekers” by discouraging them from undertaking dangerous journeys and paying human smugglers only to be summarily rejected upon arrival.
This “popular hypothesis” largely ignores the effect of conditions in refugee sending countries, including both geopolitical and environmental factors. For example, the current migration flow is affected by the practical difficulties of travel in the time of pandemic and by economic failures and cultural and political changes resulting from unabated climate change, not just by the legal restrictions that might be in place in the U.S. and other far-away countries.
It also factors out the “business narratives” of human smugglers designed to manipulate asylum seekers in ways that maximize profits under a variety of scenarios and to take maximum advantage of mindlessly predictable government “enforcement only” strategies.
Indeed, there is plenty of reason to believe that such policies serve largely to maximize smugglers’ profits, extort more money from desperate asylum seekers, but with little long-term effect on migration patterns. The short-term reduction in traffic, often hastily mischaracterized as “success” by the government, probably reflects in part “market adjustments” as smugglers raise their rates to cover the increased risks and revised planning caused by more of a particular kind of enforcement. That “prices some would-be migrants out of the market,” at least temporarily, and forces others to wait while they accumulate more money to pay smugglers.
It also likely increases the number of asylum seekers who die while attempting the journey. But, there is no real evidence that four decades of various “get tough” and “deterrence policies” — right up until the present — have had or will have a determinative long term effect on extralegal migration to the U.S. It may well, however, encourage more migrants to proceed to the interior of the country and take “do it yourself” refuge in the population, rather than turning themselves in at or near the border to a legal system that has been intentionally rigged against them.
Regardless of its empirically questionable basis, “deterrence theory” has become the primary driving force behind government asylum policies. Thus, the fear of large-scale, out of control “Southern border incursions” by asylum seekers has driven all U.S. Administrations to adopt relatively restrictive interpretations and applications of asylum law with respect to asylum seekers from Central America.
Starting with a so-called “Southern border crisis” in the summer of 2014, the Obama Administration took a number of steps intended to discourage Central American asylum seekers. These included: use of so-called “family detention;” denial of bond; accelerated processing of recently arrived children and adults with children; selecting Immigration Judges largely from the ranks of DHS prosecutors and other Government employees; keeping asylum experts off the BIA; taking outlandish court positions on detention and the right to counsel for unrepresented toddlers in Immigration Court; and dire public warnings as to the dangers of journeying to the U.S. and the likelihood of rejection upon arrival.
These efforts did little to stem the flow of asylum seekers from the Northern Triangle. However, they did result in a wave of “Aimless Docket Reshuffling” (“ADR”) at the Immigration Courts that accelerated the growth of backlogs and the deterioration of morale at EOIR. (Later, Sessions & Barr would “perfect the art of ADR” thereby astronomically increasing backlogs, even with many more judges on the bench, to something approaching 1.5 million known cases, with probably hundreds of thousands more buried in the “maliciously incompetently managed” EOIR (non)system).
Success for Central American asylum applicants thus remained problematic, with more than two of every three applications being rejected. Nevertheless, by 2016, largely through the heroic efforts of pro bono litigation groups, applicants from the so-called “Northern Triangle” – El Salvador, Honduras, and Guatemala – had achieved a respectable approval rate ranging from approximately 20% to 30%.
Many of these successful claims were based on “particular social groups” composed of battered women and/or children or family groups targeted by violent husbands or boyfriends, gangs, cartels, and other so-called “non-governmental actors” that the Northern Triangle governments clearly were “unwilling or unable to control.”
III. CROSSHAIRS
Upon the ascension of the Trump Administration in 2017, refugee and asylum policies became driven not only by “deterrence theory,” but also by racially, religiously, and politically motivated “institutionalized xenophobia.” The initial target was Muslims who were “zapped” by Trump’s so-called “Muslim ban.” Although initially properly blocked as unconstitutional by lower Federal Courts, the Supreme Court eventually “greenlighted” a slightly watered-down version of the “Muslim ban.”
Next on the hit list were refugees and asylees of color. This put Central American asylum seekers, particularly women and children, directly in the crosshairs.
In something akin to “preliminary bombing,” then Attorney General Jeff Sessions launched a series of false and misleading narratives against asylum seekers and their lawyers directed at an audience consisting of Immigration Judges and BIA Members who worked at EOIR and thus were his subordinates.
Without evidence, Sessions characterized most asylum seekers as fraudulent or mala fide and blamed them as a primary cause for the population of 11 million or so undocumented individuals estimated to be residing in the U.S. He also accused “dirty immigration lawyers” of having “gamed” the asylum system, while charging “his” Immigration Judges with the responsibility of “assisting their partners” at DHS enforcement in stopping asylum fraud and discouraging asylum applications.
IV. THE ATTACK
While not directly tampering with the “well-founded fear” standard for asylum, with Sessions leading the way, the Administration launched a three-pronged attack on asylum seekers.
First, using his power to review BIA precedents, Sessions reversed the prior precedent that had facilitated asylum grants for applicants who had suffered persecution in the form of domestic abuse. In doing so, he characterized them as “mere victims of crime” who should not be recognized as a “particular social group.” While not part of the holding, he also commented to Immigration Judges in his opinion that very few claimants should succeed in establishing asylum eligibility based on domestic violence.
He further imposed bogus “production quotas” on judges with an eye toward speeding up the “deportation railroad.” In other words, Immigration Judges who valued their jobs should start cranking out mass denials of such cases without wasting time on legal analysis or the actual facts.
Later, Sessions’s successor, Attorney General Bill Barr, overruled the BIA precedent recognizing “family” as a particular social group for asylum. He found that the vast majority of family units lacked the required “social distinction” to qualify.
For example, a few prominent families like the Rockefellers, Clintons, or Kardashians might be generally recognized by society. However, ordinary families like the Schmidts would be largely unknown beyond their own limited social circles. Therefore, we would lack the necessary “social distinction” within the larger society to be recognized as a particular social group.
Second, Sessions and Barr attacked the “nexus” requirement that persecution be “on account of” a particular social group or other protected ground. They found that most alleged acts of domestic violence or harm inflicted by abusive spouses, gangs and cartels were “mere criminal acts” or acts of “random violence” not motivated by the victim’s membership in any “particular social group” or any of the other so-called “protected grounds” for asylum. They signaled that Immigration Judges who found “no nexus” would find friendly BIA appellate judges anxious to uphold those findings and thereby retain their jobs.
Third, they launched an attack on the long-established “nongovernmental actor” doctrine. They found that normally, qualifying acts of persecution would have to be carried out by the government or its agents. For non-governmental actions to be attributed to that government, that government would basically have to be helpless to respond.
They found that the Northern Triangle governments officially opposed the criminal acts of gangs, cartels, and abusers and made at least some effort to control them. They deemed the fact that those governments are notoriously corrupt and ineffective in controlling violence to be largely beside the point. After all, they observed, no government including ours offers “perfect protection” to its citizens.
Any effort by the government to control the actor, no matter how predictably or intentionally ineffective or nominal, should be considered sufficient to show that the government was willing and able to protect against the harm. In other words, even the most minimal or nominal opposition should be considered “good enough for government work.”
V. THE UGLY RESULTS
Remarkably, notwithstanding this concerted effort to “zero out” asylum grants, some individuals, even from the Northern Triangle, still succeed. They usually are assisted by experienced pro bono counsel from major human rights NGOs or large law firms — essentially the “New Due Process Army” in action. These are the folks who have saved what is left of American justice and democracy. Often, they must seek review in the independent, Article III Federal Courts to ultimately prevail.
Some Article IIIs are up to the job; many aren’t, lacking both the expertise and the philosophical inclination to actually enforce the constitutional and statutory rights of asylum seekers — “the other,” often people of color. After all, wrongfully deported to death means “out of sight, out of mind.”
However, the Administration’s efforts have had a major impact. Systemwide, the number of asylum cases decided by the Immigration Courts has approximately tripled since 2016 – from approximately 20,000 to over 60,000, multiplying backlogs as other, often older, “ready to try” cases are shuffled off to the end of the dockets, often with little or no notice to the parties.
At the same time, asylum grant rates for the Northern Triangle have fallen to their lowest rate in many years 10% to 15%. Taken together, that means many more asylum denials for Northern Triangle applicants, a major erosion of the generous “well-founded fear” standard for asylum, and a severe deterioration of due process protections in American law. Basically, it’s a collapse of our legal system and an affront to human dignity. The kinds of things you might expect in a “Banana Republic.”
VI. WILL BIDEN FIX EOIR OR REPEAT THE MISTAKES OF THE OBAMA ADMINISTRATION?
The intentional destruction of U.S. asylum law and the weaponization of EOIR in support of the White Nationalist agenda have undermined the entire U.S. justice system. It actively encourages both dehumanization (“Dred Scottification”) and institutionalized racism all the way up to a Supreme Court which has improperly enabled large portions of the unlawful and unconstitutional anti-migrant agenda.
The Biden Administration can reverse the festering due process and human rights disaster at EOIR. Unlike improving and reforming the Article III Judiciary, it doesn’t need Mitch McConnell’s input to do so.
Biden can appoint an Attorney General who will recognize the importance of putting immigration/human rights/due process experts in charge of EOIR. He can replace the current BIA with real appellate judges whose qualifications reflect an unswerving commitment to due process, expert application of asylum laws in the generous manner once envisioned by the Supreme Court in Cardoza-Fonseca, implementing “best” practices, judicial efficiency, and judicial independence.
Biden can return human dignity to an improperly weaponized system designed to “Dred Scottify” the other. He can appoint better qualified Immigration Judges through a merit-based system that would encourage and give fair consideration to the many outstanding candidates who have devoted their professional lives to fighting for due process, fundamental fairness, and immigrants’ rights, courageously, throughout America’s darkest times!
That, in turn, will create the necessary conditions to institutionalize the EOIR reforms through the legislative creation of an independent, Article I Immigration Court that will be the “gemstone” of American justice rather than a national disgrace! One that will eventually fulfill the noble, now abandoned, “EOIR Vision” of “through teamwork and innovation being the world’s best tribunals, guaranteeing fairness and due process for all.”
The Obama Administration shortsightedly choose to “freeze out” the true experts in the private advocacy, NGO, academic, clinical teaching, and pro bono communities. The results have been beyond disastrous.
In addition to killing, maiming, and otherwise harming humans entitled to our legal protection, EOIR’s unseemly demise over the past three Administrations has undermined the credibility of every aspect of our justice system all the way to the Supreme Court as well as destroying our international leadership role as a shining example and beacon of hope for others.
The talent in the private sector is out there! They are ready, willing, and very able to turn EOIR from a disaster zone to a model of due process, innovation, best practices, fair, efficient, and practical judging, and creative judicial administration. One that other parts of the U.S. judicial system could emulate.
Will the Biden Administration heed the call, act boldly, and put the “right team” in place to save EOIR? Or will they continue past Democratic Administrations’ short-sighted undervaluation of the importance of providing constitutionally required due process, equal justice, and fundamental fairness to all persons in the U.S. including asylum applicants and other migrants.
I’ve read a number of papers and proposals on how to “fix” immigration and refugee policies. None of them appears to recognize the overriding importance of making EOIR reform “job one.”
For once, why can’t Democrats “think like Republicans?” When John Ashcroft and Kris Kobach and later Jeff Sessions and Stephen Miller set out to kneecap, politicize, and weaponize the U.S. justice system, what was their “starting point?” EOIR, of course!
The Obama Administration’s abject failure to effectively address and reverse the glaring mess at EOIR left by the “Ashcroft reforms” basically set the table for Sessions’s even more invidious plan to weaponize EOIR into a tool for xenophobia and White Nationalist nativism. The problems engendered by allowing the politicization and weaponization of EOIR have crippled the U.S. justice system far beyond immigration and asylum law.
Without a better EOIR, fully empowered to lead the way legally and insure and enforce compliance, all reforms, from DACA, to detention reform, to restoration of refugee and asylum systems will be less effective, more difficult, and less enduring than they should be. Equal justice for all and an end to institutionalized racism cannot be achieved without bold EOIR reform!
It would also take some of the pressure off the Article III Courts. Time and again they are called upon, with disturbingly varying degrees of both willingness and competence in the results, to correct the endless stream of basic legal errors, abuses of due process, and inane, obviously biased and counterproductive policies regularly flowing from EOIR and DOJ. Indeed, unnecessary litigation and frivolous, ethically questionable, often factually inaccurate or intentionally misleading positions advanced by the DOJ in immigration matters now clog virtually all levels of the Article III Federal Courts right up to the docket of the Supreme Court!
So far, what I haven’t seen is a recognition by anyone on the “Biden Team” that the experts in the private bar who have been the primary fighters in the trenches, almost singlehandedly responsible for preserving American justice and saving our democracy from the Trump onslaught, must be placed where they belong: in charge of the effort to rebuild EOIR and those who will be chosen to staff it!
Continue to ignore the New Due Process Army and their ability to right the listing American ship of state at peril! It’s long past time to unleash the “problem solvers” on government and give them the resources and support necessary to use practical scholarship, technology, best practices, and “Con Law/Human Rights 101” to solve the problems!
No “magic list,” stakeholders committees, or consensus-building groups can take the place of putting expert, empowered, practical problem solvers in charge of the machinery. We can’t win the game with the best, most talented, most knowledgeable, most courageous players forever sitting on the bench!
The future of our republic might well depend on whether the Biden-Harris Administration can get beyond the past and take the courageous, far-sighted actions necessary to let EOIR lead the way to a better future of all Americans! We can only hope that they finally see the light. Before it’s too late for all of us!
Due Process Forever! Complicity & Complacency, Never!
Elizabeth Keyes Associate Professor Director, Immigrant Rights Clinic U of Baltimore Law Photo: U of Baltimore Law WebsiteKate Evans Clinical Professor Director, Immigrant Rights Clinic Duke Law Photo: Duke Law Website
All,
In the hopes this will be helpful to any of you who are dealing with Negusie issues, I wanted to share my forthcoming article on Duress in Immigration Law, which evolved from my own litigation in this arena. As we challenge this new AG decision (for however long it lasts!), I highly, highly recommend Kate Evans’s Drawing Lines Among the Persecuted, as well.
I am so looking forward to critiquing the AG’s decision thanks to the scholarship Margaret Taylor and Maureen Sweeney have done around deference in the context of AG certification. This community is unendingly helpful!
Liz
Elizabeth Keyes
Associate Professor, Director of the Immigrant Rights Clinic
University of Baltimore School of Law
*******************
Thanks for sharing, Liz & Kate!
Soon, Billy will be peddling his bias, bigotry, and balderdash in Breitbart News or the National Enquirer where it deservedly will get little notice outside the “Twilight Zone” where Billy and his buddies operate! (Sorry, Billy, but you might have fallen below the “Fox News Threshold!”)
Folks like Liz and Kate are leading intellects with experience and credentials earnedby working in the trenches at the “retail levels” of our now-cratering justice system! They would solve problems, “get this system working” the way it should, and make equal justice for all a reality!
I hope that the Biden-Harris Administration will give them, and others like them, many women and minorities, a chance to do just that when it comes to filling judicial and public policy positions! We need to get the immense brain power, humanity, energy, and positive leadership currently available in the private, NGO, and clinical academic sectors into public policy positions where they can achieve “maximum common good” for all of us!
Official portrait of Vice President Joe Biden in his West Wing Office at the White House, Jan. 10, 2013. (Official White House Photo by David Lienemann).Vice President Elect Kamala Harris Official Senate Photo Public Realm
🇺🇸🗽⚖️👍😎COURTSIDE ELECTION SPECIAL: HARRIS, BIDEN, DEMOCRACY BIG WINNERS — THIS TIME AROUND, THE MAJORITY RULES, AS DEM DUO SWEEPS TO VICTORY IN BOTH POPULAR VOTE AND ELECTORAL COLLEGE!
By Paul Wickham Schmidt
Courtside Exclusive
Nov. 7, 2020. Vice President and soon to be President Elect Joe Biden’s 33-year long quest for the U.S. Presidency will come to fruition on January 20, 2021. His running mate and soon to be Vice President Elect Senator Kamala Harris will become the first woman and the first African American to hold the number two job.
Although the results of the Presidential contest were long in coming, they basically fulfilled pre-election predictions. Harris-Biden are on pace to win a clear majority of the popular vote by over four million votes, in the process compiling the highest vote total in U.S. election history.
Unlike 2016, this time the popular vote translates into an insurmountable 59 vote margin and a majority in the electoral college. Fittingly, Biden’s apparent victory in Pennsylvania put him over the top. But, with the Biden Harris team in the lead in the “undecided” states of Nevada, Arizona, and Georgia that electoral margin seems likely to widen when the final vote is tabulated. Only the remaining states of Alaska and North Carolina appear to be falling into the Trump column, which would still leave the soon-to-be former President woefully short of an electoral majority.
Indeed, he is now on pace to lose by the same electoral majority than he compiled in defeating Clinton notwithstanding losing the popular vote to her by millions. At that time, Trump characterized his electoral college victory as a “landslide,” notwithstanding his very clear defeat in the popular vote. While compiling a head-scratchingly large cult-like following of tens of millions that propelled him to victory on 2016 and helped prop up his bizarrely incompetent presidency, Trump was never popular with the majority of Americans, except in his own muddled mind.
In winning a convincing victory, if not the overwhelming one that Democrats hoped for and that many pundits and pollsters predicted, Biden/Harris appear to have held every state won by Hillary Clinton in 2016 while “flipping” Biden’s birth state of Pennsylvania, Michigan, and Wisconsin by narrow margins. If their narrow current leads in Arizona and Georgia hold, they will add “flips” of these traditional GOP strongholds to their list of election achievements.
Biden becomes only the third candidate since Franklin D. Roosevelt in 1932 to unseat a sitting elected President, the others being President Ronald Reagan and President Bill Clinton. (President Jimmy Carter unseated President Gerald Ford in 1980, but Ford was never elected to either the Vice Presidency or the Presidency.) Biden also becomes the fourth Vice President in the past 70 years to later win a Presidential election.
Harris is a graduate of Howard University and Cal Hastings Law. Her win is a huge milestone for “historically black colleges” and their many talented graduates throughout our nation.
Biden is a graduate of the University of Delaware and Syracuse Law. The Harris-Biden tandem may be the first time that “non—Ivy” lawyers have held both of our top elected positions. That’s a tribute to the many fine law schools outside the Ivy League that produce the vast majority of the nation’s legal talent and fuel most of the “practical lawyering and usable scholarship” that keeps our legal system afloat.
Hopefully, our new leaders will keep that in mind when filling key positions in their upcoming Administration and particularly in making Federal Judicial appointments at all levels. That’s especially important considering the disturbing failure of many graduates of so-called “elite” law schools serving us as public officials and judges to effectively and courageously stand up to the all out assault on the rule of law, ethics, constitutionally required due process and equal protection, and human decency by the Trump regime.
Any surviving functionality and integrity in our courts and public institutions is largely the result of courageous and under-appreciated attorneys, many working pro bono, who have fought at the “retail level” of our justice system to preserve those human rights and fundamental values upon which our legal system rests. All too often, they suffered bullying and abuse from the cowardly Trump regime for their efforts, while life-tenured Federal Judges failed in their duty to intercede to protect officers of their courts and their clients whose rights were being trampled by a group of out of control White Nationalist bigots.
Thus, the Biden-Harris team will enter what is probably the most consequential Presidency in U.S. history at one of the most most difficult and contentious times. With an out of control pandemic, high unemployment, rapidly deteriorating environment, festering racism, looming healthcare, opioid, and educational crises, cratering international prestige, trade wars, a crippled and demoralized career civil service, a failing judicial system, dysfunctional immigration and refugee systems, lack of trust in Government, disquiet in the intelligence and military communities, lack of competent Executive leadership over the past four years, and about 70.3 million Americans essentially living “in a parallel universe” but still our fellow citizens and essential to our society, saving American democracy would be a daunting task for any leaders. Some would say “mission impossible.” But, I can’t think of anyone better suited than the Biden-Harris team to undertake that mission.
In a democracy, successful outcomes are never guaranteed. But, if our democracy turns out to be beyond reclamation, it almost certainly will be because “We the People” fail to give our new leaders the support they need and deserve.
As for Trump, ever the total boor and purveyor of hate, division, and lies, he sent a missive from his golf course saying that he wouldn’t concede and pledged to continue to pelt our already crumbling court system with yet more frivolous litigation. Thankfully, most news commentators chose to read only a few lines of his incoherent rant before returning to the real news surrounding Biden and Harris. How quickly even the most bombastic ones with the biggest egos become “yesterday’s news.”
So, unsurprisingly, Trump, who undoubtedly will go down as the worst, most corrupt, and least competent President in U.S. history, will exit with the same disturbing lack of class, honesty, and fundamental human decency that has characterized his four-year “nightmare reign.” Meanwhile, as he relaxes, pouts, and sulks on the links, the pandemic that he failed to take reasonable steps to address or control, and consistently and dishonestly tried to downplay, continues to rage unabated and ravish our nation.
One of the hardest hit areas: The Upper Midwest, particularly my native state of Wisconsin. That might explain why today Trump is playing golf and Joe Biden and Kamala Harris are sharing center stage! For a change, its nice to have folks who represent some of the most admirable human qualities that America has produced getting their time in the spotlight.
The good news: After 12:01 PM on January 20, 2021, the majority of us won’t care about the antisocial antics of the biggest loser of this election!
Lawsuit Seeks to Uncover Secretive Expansion of Judicial Black Sites for Immigration Cases
WASHINGTON, DC — Immigration groups filed a lawsuit today in the United States District Court for the District of Columbia against the Executive Office for Immigration Review (EOIR)—which oversees immigration courts—and the General Services Administration (GSA) requesting information on the expansion and creation of immigration adjudication centers, which were established as part of EOIR’s Strategic Caseload Reduction plan designed to accelerate removal proceedings at the expense of due process.
The lawsuit—filed by the American Immigration Council, American Immigration Lawyers Association, the Chicago AILA Chapter, and the National Immigrant Justice Center— seeks the disclosure of records on the obscure procedural rules for immigration adjudication centers. The centers are a new initiative created under the Trump administration where immigration judges adjudicate immigration cases from around the country in remote-only settings that are closed to the public.
Immigration adjudication centers appear to have been created to address immigration court backlogs, but attorneys and immigrants facing deportation have little instruction on the procedures for appearing before these centers. Immigration lawyers and advocates have expressed concerns after public reports indicate the potential expansion of immigration adjudication centers across the country.
The lawsuit challenges EOIR’s failure to disclose information in response to a Freedom of Information Act request submitted in March 2020. EOIR and GSA have failed to disclose critical information about what immigration courts presently exist, immigration court expansion, and contracts governing this expansion.
“Immigration lawyers and advocates have an interest in pressing for more transparency in the immigration courts, helping ensure the due process rights of all who appear in court, and providing guidance to the lawyers representing people before these courts,” said Claudia Valenzuela, FOIA senior attorney at the American Immigration Council.
“Transparency is essential to a fair day in court. Unfortunately, the secretive creation and expansion of immigration adjudication centers where immigration judges conduct remote-only proceedings in facilities closed to the public demonstrate how opaque an already complex immigration court system has become at the hands of this administration. While the Department of Justice regulations require immigration hearings to generally be open to the public, this administration has imposed significant new barriers to the public’s ability to observe these proceedings and has led to some hearings being conducted in secret, calling into question whether the fundamental elements of due process are being met. We are proud to stand alongside our partners in this effort,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association.
“Everyone deserves a fair day in court. The lack of transparency in EOIR operations compromises the integrity of our immigration system and undermines public confidence in this system,” said Nell Barker, chair of the American Immigration Lawyers Association’s Chicago Chapter. “The secretive expansion of immigration courts is a blow to due process and adds a layer of unnecessary unpredictability to a system that struggles to inform stakeholders about changing procedures. We are concerned about the increasing inaccessibility of immigration courtrooms to lawyers, clients, and the public.”
“The secretive and inaccessible immigration adjudication centers, where judges determine whether noncitizens will be deported to persecution and torture or permanent family separation, are a disturbing example of the manner in which this administration has developed and expanded numerous policies and procedures intended to expedite the deportation of noncitizens without due process,” said Sarah Thompson, senior litigation attorney at the National Immigrant Justice Center. “EOIR must make public its plan for future adjudication centers and the procedures under which these centers operate.”
The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change—litigation, research, legislative and administrative advocacy, and communications. Follow the latest Council news and information on ImmigrationImpact.com and Twitter @immcouncil.
The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members. Follow AILA on Twitter @AILANational.
The National Immigrant Justice Center (NIJC) is a nongovernmental organization dedicated to ensuring human rights protections and access to justice for all immigrants, refugees, and asylum seekers through a unique combination of direct services, policy reform, impact litigation and public education. Visit immigrantjustice.org and follow @NIJC.
******************
The current system is specifically designed to “break” asylum seekers and their representatives in body and mind.
Will a lawless regime get another four years to finish the job of destroying American democracy and eradicating justice? Or, will there be hope on the horizon for a better future for all Americans!
