"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
A three-judge appeals panel will hear arguments on Wednesday in the power struggle between Texas and the federal government following a shock reversal that once again blocked a new state law allowing local police to arrest migrants at the border – just hours after the US supreme court had decided it could go ahead.
A federal appeals court late on Tuesday issued an order preventing Texas from implementing its plans to defy the Department of Justice and take the power for Texas law enforcement to arrest people suspected of entering the US illegally, which is normally the jurisdiction of the federal immigration authorities.
The White House had strongly criticized the supreme court on Tuesday afternoon after a ruling that would have allowed what it called a “harmful and unconstitutional” Texas immigration law to go into effect.
The supreme court order had rejected an emergency application from the Biden administration, which says the law is a clear violation of federal authority that would cause chaos.
The decision by the fifth US circuit court of appeals that followed on Tuesday night itself came just weeks after a panel on the same appeals court hearing the case on Wednesday had cleared the way for Texas to enforce the law, known as SB4, by putting a pause on a lower judge’s injunction.
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Read the complete article at the link.
The “ghosts of John Calhoun” are taking over our system! And, almost everyone’s focused on the legal minutiae and procedural gobbledygook, while ignoring the big picture, which should be a “no brainer” rejection of Texas’s existentially dangerous, yet essentially ham-handed, attempt at “nullification!”
As pointed out cogently by The Hope Border Institute (issued after the Supremes’ “copped out,” but prior to 5th Cir.’s reversal of its prior order, thus temporarily blocking SB 4) the racist, unconstitutional intent behind “SB 4” is a crystal clear “no brainer:”
THE HOPE BORDER INSTITUTE EXPRESSES GRAVE CONCERNS FOLLOWING SUPREME COURT’S DECISION TO LET SB4 ENTER INTO FORCE
EL PASO, TEXAS – The Supreme Court’s decision to let Texas enforce SB4 as it continues to be litigated is fundamentally wrong and will have grave consequences. Today’s ruling will permit the State of Texas to create an illegal parallel deportation system and ramp up its project to criminalize migration and now all people of color in the state.
SB4 will unequivocally create an environment of fear and distrust in local Texas communities, erode welcoming efforts, and legitimize racial profiling. The federal government must challenge Operation Lone Star once and for all.
In response to this decision and Texas’ targeting of migrant hospitality, all are invited this Thursday, March 21 at 6:30 pm MT to ‘Do Not Be Afraid’ March and Vigil for Human Dignity, a moment of community prayer and resistance. We will denounce Texas’ efforts to criminalize migration and humanitarian relief efforts, affirm our welcoming borderland community, remember those dying at the border, and demand humane solutions.
“The Supreme Court decision to let the unconstitutional and racist SB 4 enter into effect is gravely serious and a sign of the urgent need to advance policies that uphold human dignity,” said Dylan Corbett, Executive Director of the Hope Border Institute. “This legislation will do nothing but harm communities across Texas, and other states will follow suit. I call everyone to join us on the evening of Thursday, March 21 to march in resistance and reject this campaign of hate.”
⚖️ BIA: OUTSDE, INSIDE: Garland Reportedly Will Tap “Practical Scholar” Professor Homero López, Jr., & Temp. Appellate Immigration Judge Joan B. Geller To Prior Vacancies, With One Judgeship Still “In Competition!”
By Paul Wickham Schmidt
Special to Courtside
March 19, 2024
Although there has been no official announcement from DOJ/EOIR, I have learned that Professor (and legal services provider) Homero López and Temporary Appellate Judge (and long-time BIA attorney) Joan Geller will be appointed to two of the three existing vacancies at the BIA. The BIA is the highest administrative tribunal in immigration law and exercises nationwide jurisdiction over the Immigration Courts with authority to issue binding precedents.
Professor López‘s appointment was announced by Loyola University Law (New Orleans) where he has been an Adjunct Professor of Law:
Adjunct Professor Promoted to Board of Immigration Appeals
Adjunct Law Professor Homero Lopez has been appointed to the Board of Immigration Appeals, the top administrative appellate agency to review immigration court decisions in the United States! Judge Lopez will start considering appeals on April 1st!
BIA Judge-designate Homero López, Jr. PHOTO: ILSA website
In addition to his adjunct professorship at Loyola, Judge-designate López most recently has been the Co-Founder & Legal Director of Immigration Services and Legal Advocacy (“ISLA”) in New Orleans, “a legal services organization that defends the rights of our immigrant communities and advocates for just and humane immigration policy.”
Here’s his bio from the ISLA website:
Homero is ISLA’s Legal Director. As the son of a migrant worker, Homero grew up moving around the country and living among immigrant communities his entire life. Before co-founding ISLA, Homero was the managing attorney at Catholic Charities-Archdiocese of New Orleans where he oversaw a legal team of 30 attorneys, accredited representatives, and legal assistants focusing on representing Unaccompanied Children and immigrant victims of crime. Before that, Homero was a staff, and later, supervising attorney at Catholic Charities of the Diocese of Baton Rouge where he conducted the Legal Orientation Program for detained immigrants at the LaSalle Detention Facility and primarily focused on detained cases. Homero is a graduate of Southern Methodist University in Dallas, Texas and Tulane University Law School in New Orleans, Louisiana.
López recently was featured by Dan Kowalski in LexisNexis for his successful litigation of a major due process/credibility victory in the Fifth Circuit, Nkenglefac v. Garland, 34 F.4th 422, 430 (2022), and for prevailing in the fee award litigation in the same case. See:
Judge-designate Geller has spent the bulk of her legal career as on the BIA staff and has also served as a Temporary Appellate Immigration Judge/Board Member. Here’s her “official bio” from the EOIR website:
Joan B. Geller was appointed as a temporary board member in January 2018. Ms. Geller, who has prior experience as a temporary board member, has over 14 years of experience as an attorney advisor at the Board. Prior to joining the Board, Ms. Geller served for seven years with the District of Columbia Court of Appeals, first as a staff attorney and later as a deputy staff counsel. Ms. Geller received her B.A. from the University of Wisconsin-Madison and her J.D.from Georgetown University Law Center. She is a member of the District of Columbia and Maryland Bars.
Significantly, from my standpoint, she graduated from the University of Wisconsin-Madison and Georgetown Law, two institutions with which I have long-time associations.While Geller’s BIA service began after my tenure there, sources tell me she was “held in high regard by the staff attorneys.” That’s important, given that the bulk of the opinion-drafting work at the BIA is done by the staff and the endemic quality control issues now plaguing this appellate body.
Hopefully, López and Geller will bring some much-needed due process focus, quality control, and practical progressive scholarship, leadership, and energy to a floundering, yet critically important, tribunal badly in need of the foregoing.
Indeed, López’s stellar work in Nkenglefac went right to the heart of the chronic due process and quality control problems of the BIA, particularly in life or death asylum cases, under Sessions, Barr, and now Garland: failure to follow precedent favorable to the respondent, “phantom finding of waiver,” lack of critical analysis, misrepresentation of the record, misuse of non-record materials, improper allocation of the burdens, and ignoring or minimizing voluminous testimony!In other words, a classic example of prejudgement and “any reason to deny” (even if not in the record) decision-making!
So totally miserable was EOIR’s and OIL’s performance in Nkenglefac that in a rare move the Fifth Circuit in subsequent litigation found them to be “not substantially justified at each stage of this litigation” and awarded costs and attorneys fees to the respondent! Having seen first-hand just how absurdly skewed and unfair the EOIR system has become in “life on the line” cases, López should be well-positioned to “just say no” to this type of appellate nonsense and inject a long-missing dose of reality, humanity, and real scholarship into this “ivory (actually glass) tower tribunal!”
Those of us who care about justice in America have ripped Garland’s BIA for sloppiness, anti-asylum culture, anti-immigrant attitudes, and failure to establish clear, practical, positive precedents facilitating the timely granting of asylum to the many qualified refugees now stuck in the largely USG-created morass at our Southern Border.See, e.g., https://immigrationcourtside.com/2024/03/18/⚖️-winograd-whomps-🥊-garlands-eoir-again-this-time-on-particularly-serious-crime-psc-annor-v-garland-fo/. For example, the failure to issue a precedent requiring presumptive grants of asylum to Afghan women, instead making them laboriously work their way through the system with potentially incorrect results, is an egregious, but not certainly not the only, example of the BIA’s abject failure to “get the job done for American justice.”
I also trust that López and Geller will be “throwbacks” to a time when senior leaders EOIR actually believed in the noble (now abandoned) “vision” of EOIR that I once had a role in crafting:“Through teamwork and innovation, be the world’s best administrative tribunals, guaranteeing fairness and due process for all.”
Rather than making that vision a reality, disgracefully, under the last four Administrations, the EOIR motto appears to have devolved into “any reason to deny, good enough for government work, numbers over quality, institutional survival over individual justice, go along to get along, and don’t rock the boat!”
Finally, the appointment of Judge-designate López illustrates my constantly-made point that NDPA warriors can and must compete for EOIR judgeships, particularly at the BIA level, when they are advertised! This system needs practical, positive, due-process-focused, protection-oriented change, and it needs it now!Things are only going to improve if the pressure comes from both better-qualified judges on the “inside” and unrelenting litigation and media coverage from the “outside!”
And, of course, good luck to both these new Appellate Immigration Judges! May you never, ever forget that due process is the one and only mission of EOIR!
The 2022 Term ended last week but there already are new immigration cases on the Supreme Court’s docket for the 2023 Term.
Law 360 reports that the Supreme Court on the last day of the 2022 Term agreed to review 1) if Board of Immigration Appeals decisions denying cancellation of removal for exceptional hardship are subject to judicial review and 2) consolidated cases on the sufficiency of notice in removal proceedings.
Issue: Whether an agency determination that the statutory standard of “exceptional and extremely unusual hardship” is a mixed question of law and fact reviewable under 8 U.S.C. § 1252(a)(2)(D), or whether this determination is a discretionary judgment call unreviewable under Section 1252(a)(2)(B)(i) (and not subject to judicial review).
The Court continues to deal with the ripple effects of Pereira v. Sessions (2018), which addressed the sufficiency of notice in removal proceedings.
Issue: Whether the government provides notice “required under” and “in accordance with paragraph (1) or (2) of” 8 U.S.C. § 1229(a) when it serves an initial notice document that does not include the “time and place” of proceedings followed by an additional document containing that information, such that an immigration court must enter a removal order in absentia and deny a noncitizen’s request to rescind that order.
KJ
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Aleksandra Gontaryuk ESQ Managing Partner AG Law Newark, NJ PHOTO: AG Law
From: Aleksandra Gontaryuk
Sent: Monday, July 3, 2023 4:29 PM
To: AILA New Jersey Chapter Distribution List <newjersey@lists.aila.org>
Subject: Precedential Decision — 3rd Circuit
Hot off the presses. No supplemental notice allowed to cure defective NTA unless there is a change or postponement of time and place in NTA. In this case, my client had a defective NTA, so 3rd Circuit ruled there can be no change or postponement from a defective NTA in the first place when DHS didn’t issue new NTA!! In absentia remanded.
[The case is Madrid-Mancia v. AG, available in full text at the above link.]
Aleksandra N. Gontaryuk, Esq.
AG Law Firm
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Actually, Dems need an AG who WILL WORRY about systematic denials of due process, fundamental fairness, and failure to install best-qualified progressives in the disastrously dysfunctional Immigration Courts! PHOTO: Wikipedia Commons
The notice issue presented by Campos-Chaves and Singh has been to the Supremes, albeit in different forms, twice before recently. The BIA/DOJ position has been emphatically “stuffed” by the Supremes both times! Yet, here we are again with the same backlog-enhancing, due-process-denying nonsense, this time from a Dem AG who was supposed to act like a “real” Federal Judge, not a “stooge” for DHS Enforcement.
The long and short of it is that this third trip to the Supremes on the notice issue was avoidable. That is, if Garland had appointed immigration experts, individuals not afraid to enforce the statute even where it benefits the individual, as it often will if properly and fairly interpreted, to the BIA, long a hotbed of anti-immigrant interpretations of law. Garland continues to enable a system “packed” with anti-immigrant and anti-asylum judges promoted under Trump and largelyretained by Garland. This should outrage all progressives!
Dems continue to fecklessly “wring their hands” about the sharp right turn of the Supremes and the lower Article IIIs and the predictable decimation of individual rights. It all occurred in plain sight and with plenty of advance warning from the GOP as Dems diddled away their chances to stop it.
Dems aren’t going to be able to expand the Supremes, nor are term limits likely to happen. Both would require GOP support, which will not be forthcoming now that they have achieved their long-promised “takeover!” Discussing it is a waste of breath and brain cells. It also diverts attention from the Dems ongoing failure at EOIR.
The Dems best practical chance of reforming the Federal Courts would be to start “at the critical retail level” with what they control and could change tomorrow:The U.S.Immigration Courts housed (however improperly) in the DOJ. Right now they are an embarrassing mess of bad judging, anti-immigrant bias, worst practices, grotesque mismanagement, insurmountable backlogs, and hare-brained gimmicks.
Every day, in this and other forums, we see inspiring examples of the type of extraordinary progressive, creative, courageous legal talent available “in the marketplace.” They are the ones Garland should be recruiting and putting on the EOIR bench at both appellate and trial levels.
We would get an immediate, long overdue, improvement in the quality and efficiency of justice at EOIR. Correct, scholarly precedents would have carry-over into other areas of law and even gain international traction.
And, Dems would be building a “long bench” of “tried and true” candidates for Article III positions in the process! Who knows if and when a chance like this will come again? Yet, Garland and the Dems are squandering it, damaging democracy and humanity in the process! Talk about turning a “win-win” into a “lose-lose!” It’s something that Dem politicos excel at!
Dems failure to institute progressive reforms and bring in expert progressive judges at the court they do control makes the rest of their pronouncements on Federal Court reform meaningless babbling!
Dems “babble on” about Federal Court reform as GOP scores “real life” victories over individual rights and equity. It’s a waste of time, and “task avoidance” by Dems that diverts attention from the major Federal System they own 100% and operate (very badly): The U.S. Immigration Courts @ EOIR! — “Towel of Babel” By Pieter Bruegel The Elder Public Domain
Pay no attention to Dems disingenuous complaints about the Supremes and “Trumpy” lower court judges until they demonstrate the ability and willingness to reform EOIR!
CAUTION: You are about to enter AG Merrick Garland’s “Twilight Zone” — where “judges” operating in a parallel universe make surreal decisions without regard to facts, law, or common sense applicable in this world! The Twilight Zone Billy Mumy 1961.jpg :PHOTO: Public Realm
Another timely report from Dan Kowalski @ LexisNexis:
“Perez-Vasquez is correct that the BIA erred by failing to address key evidence. See Cabrera v. Sessions, 890 F.3d 153, 162 (5th Cir. 2018). Specifically, the BIA did not consider several factors he raised in his motion to reopen as to whether exceptional circumstances prevented his appearance at his removal hearing, including evidence of: (1) Perez’s multiple attempts to contact both the Portland and El Paso immigration courts; (2) the fact that he filed two change of address forms because the El Paso immigration court sent the notice of hearing to the wrong address after he filed his first one; (3) the fact that his hearing was set in El Paso—where his son was detained—as opposed to Portland despite informing officials that he was going to reside in Oregon; (4) his financial constraints in travelling to El Paso with three-days notice. See Matter of S-L-H- & L-B-L-, 28 I. & N. Dec. 318, 321 & n.4 (BIA 2021); see also Magdaleno de Morales v. INS, 116 F.3d 145, 148 (5th Cir. 1997) (considering whether alien attempted to contact the immigration court prior to hearing). Additionally, the BIA failed to address evidence of Perez’s regular check-ins with immigration officials and his diligence in filing a motion to reopen, which tend to show an incentive to appear. See Matter of S-L-H- & L-B-L-, 28 I. & N. Dec. at 321. … Perez-Vasquez’s petition for review is GRANTED in part, DISMISSED in part, and DENIED in part. His case is REMANDED to the BIA for the limited purpose of considering—in light of the totality of the circumstances of his individual case—whether exceptional circumstances prevented his appearance at his removal hearing.”
[Hats off to NIPNLG Director of Legal Resources and Training Michelle N. Méndez!]
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
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The facts of this case are somewhere out there in the “twilight zone.” Would any other tribunal in America waste two decisions denying an individual a fair hearing in this situation?
But, sadly, it’s what we have come to expect from a failing organization that is more interested in denying the right to be heard than in conducting hearings! Of course, EOIR is building record backlogs with “Aimless Docket Reshuffling,” lousy leadership, bad, often anti-immigrant, jurisprudence, and infinite tolerance for substandard performance within its ranks! Enough!
Congratulation Michelle, my friend, to you and your all-star team over at NIPNLG. Perhaps the worst mistake that Garland has made as AG was not immediately “cleaning house” at EOIR and appointing folks like Michelle and others from the NDPA to fix the system: At long last, bring practical scholarship, creative thinking, “experience in the trenches,” and an unswerving commitment to due process into a dysfunctional organization and “take names and kick tail” of those judges and others who are still “with” the mindless, immoral, counterproductive, and wrong-headed “any reason to deny/courts as a soft deterrent” approach of the former Administration.
The EOIR system needs real, dynamic intellectual leaders and widely-respected, innovative, courageous “practical scholars” like Michelle! A few such folks exist in today’s EOIR. But, they are essentially buried in the “forest of intellectual and moral deadwood” that Garland has not yet cleared out!
We are well into the Biden/Harris Administration; but, bad and poorly qualified judges and weak or inept administrators from the Trump and Obama Administrations (or even Bush II) are still wreaking havoc on American justice and threatening our democracy.
By contrast, if not invited to fix the broken EOIR system “from the inside” Michelle and the other members of the NDPA are going to force change from the outside! You can count on it! They will keep at it until this dysfunctional, unfair, and mal-administered system either reforms or collapses under the weight of its own incompetence, cruelty, inefficiency, and just plain stupidity!
Consistently getting these cases right (an MTR, for Pete’s sake) isn’t “rocket science.” A competent IJ would have taken about 5 minutes or less to mark this “granted” and change venue to Portland. A competent appellate tribunal would have reversed and rocketed it back to the IJ with instructions to “cut the BS.”
But, it continues to be elusive for Garland’s “gang that can’t shoot straight!” This system “coddles” poorly performing judges at both levels!
Meanwhile, they “throw the book” at desperate individuals trying their best to navigate EOIR’s broken, irrational, and intentionally “user unfriendly” parody of a “court system.” It is truly the “Twilight Zone of American Justice!”
Think of it: Four years, three tribunals, at least five Federal Judges, and a bevy of lawyers and clerks have spent time on this case. And, EOIR is no nearer to getting to the merits than the day the NTA was issued! This system needs “practical problem solvers” like Michelle, NOT “stuck in the mud” bureaucrats masquerading as judges, professional judicial leaders, and role models.
Tell Garland it’s time for a better, smarter approach to justice at EOIR! The real talent is out here! What’s he waiting for?
“Nexus? What nexus? These “just happen to be” women facing a little “random violence!” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
With credible testimony and harm that rises to the level of persecution for a woman in El Salvador, who was the victim multiple rapes, on its face, this should have been an easy grant for a competent IJ.
Essentially, this judge argues that harm rising to the level of persecution — multiple rapes — inflicted on a woman in El Salvador, where femicide and misogyny run rampant, has nothing to do with her being a woman. Such a conclusion is unlikely — some experts would say facially absurd!
Indeed, the IJ’s apparent view that multiple rapes had nothing to do with a gender-based protected ground of being a woman would be totally “off the wall” for any experienced asylum adjudicator who truly understood the well-documented nature of violence against women as a widespread form of persecution worldwide!
According to the UN Handbook for Determining Refugee Status, adjudicators should give credible applicants “the benefit of the doubt.” “It is therefore frequently necessary to give the applicant the benefit of the doubt.” (Par. 203). That’s not what this IJ did!
Also, in the remand order, the BIA specifically rejected the IJ’s finding that this gross harm to the respondent was “individualized” and “personalized” and therefore not a basis for an asylum claim — something not mentioned by the IJ in his “certification.”
Counsel for the applicant is well aware of this “better analysis” and could have argued it.But, in his snarky haste to prejudge and deny needed protection, this Houston IJ didn’t even give the parties a chance to participate in his “return to sender” (“certification”) nonsense.
A better functioning expert BIA would have long ago provided precedential guidance granting cases like this — adopting and amplifying the rationale of the IJ in the Honduran case.
Additionally, the BIA remand instructed the IJ to inquire of the DHS as to whether this victim of multiple rapes with no apparent criminal record or other adverse factors was and “enforcement priority” under applicable DHS guidelines — something that the IJ contemptuously and improperly did not do! Indeed,he didn’t seek any input from the parties despite being instructed to do so.
Unquestionably, being an El Salvadoran woman is a) immutable or fundamental to identity; b) highly particularized, and c) socially visible, as recognized by the Salvadoran government and everyone in El Salvador, thereby clearly qualifying as a “particular social group.”
There is also plenty of reliable evidence that El Salvador, like the rest of the Northern and Triangle Governments, is basically a failed state — something publicly admitted by some Administration officials, including Special Envoy to the Northern Triangle Ricardo Zuniga. https://apple.news/A9FpzsjRAQ2OoAyQZzHZm1A (“democracy, the rule of law and the security situation continue to deteriorate”). The Salvadoran government is neither willing nor able to provide a reasonable level of protection to women like this applicant. Indeed, there is likely sufficient evidence for a better BIA to establish a “rebuttable presumption of failure of state protection” in El Salvador and the rest of the Northern Triangle.
Temporary Appellate Immigration Judge Gabe Gonzalez, author of the remand, is one of the better BIA judges. But, his remand could have been even stronger. He could have reversed this IJ and granted asylum on this record. Why “beat around the bush” on grantable cases that are being mishandled by “chronically over-denying IJs” below? At this point, removal of this particular judge from the case would be more than justified. Cases like this certainly raise the legitimate question of why IJs who sit around inventing reasons to deny relief to those in need of protection are on the Immigration Bench in the first place. There are certainly better-qualified judicial choices — many of them located in Texas — who could bring legitimacy, quality, and efficiency to Garland’s dysfunctional courts!
“Bogus lack of nexus” is one of the most overused grounds for improper denials of protection by EOIR judges at all levels. It’s part of the “any reason to deny” approach enabled by EOIR’s current “anti-asylum culture” — one that was overtly encouraged and promoted by the Trump DOJ.
Inexplicably selecting Houston as one of the “test locations” for the new asylum regulations is “built to fail.” Without expert, positive guidance from qualified IJs in Houston (and the BIA) on granting asylum — something that this “denial centered court” simply doesn’t possess — there is every reason to believe that asylum seekers will not receive professional treatment or correct decisions from either the Asylum Office or the Immigration Court in Houston. And, relying on the BIA or, worse yet the “over the top” 5th Circuit,” to guarantee fairness and justice for asylum seekers? That’s a sick joke under current conditions!
8) Poorly reasoned, legally incorrect asylum denials and frivolous actions like the IJ’s “certification” in this case are a major factor in generating a 1.8 million case EOIR backlog and enabling a lawless, non-expert, anti-immigrant “culture of denial” at EOIR. Many grantable asylum cases languish in the backlog, are subjected to “Aimless Docket Reshuffling,” and then are wrongfully denied by poorly performing judges at both levels of EOIR.
9) EOIR suffers from poor leadership, a poorly performing BIA that overall lacks the expertise and courage to grant the large number of deserving asylum cases currently languishing in the EOIR backlog, and to set proper legal standards that will guide Immigration Judges and Asylum Officers in efficiently granting deserving cases at the first level of the system.
10) Garland should remove or reassign the “under-performers” and “non-performers” at EOIR and replace them with qualified experts committed to best practices and “guaranteeing fairness and due process for all” (EOIR’s now long-forgotten and dishonored mission).
11) Lives and the future of democracy are at stake here! America simply can’t afford the “institutionalizednonsense” still rampant at EOIR as illustrated by this case!
12) Also, EOIR’s performance in this cases is inconsistent with almost every sentence of the recent “LA Declaration.” Issuing statements of principle that are directly contradicted by your actual practices is a bad idea!
This has been a bad week for individual rights and particularly the rights and humanity of women in America. Garland can’t fix the out of control, “fringe-right,” Supremes’ majority. But, he can fix EOIR! And, that would be a long overdue and desperately needed first step toward fixing the entire broken and foundering Federal Court system. Start “at the retail level” with what you have the power to fix and work from there!
“The collateral consequences of the BIA’s order ensure that Arulnanthy’s petition for review remains justiciable despite his removal to Sri Lanka. Substantial evidence supports the finding that Arulnanthy was not a credible witness. And the BIA was right to consider Arulnanthy’s lack of credibility fatal to his asylum claim. But the BIA’s refusal to consider his country-conditions evidence in the purely objective CAT context was error. We therefore REMAND the petition as to the CAT claim and DENY it in all other respects.”
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This isn’t “rocket science” and the 5th Circuit is hardly known as a hotbed of due process and fundamental fairness for migrants!
But, when the BIA starts with “the migrant loses” as the “bottom line,” and then reasons backwards (if they bother reasoning at all, in their usual haste to keep the “deportation assembly line” moving) the “analysis” is likely to be defective. This 5th Circuit panel actually took their job of analyzing the record before them more seriously than Garland “faux expert” BIA!
One would think that a former Court of Appeals Judge would take due process, impartiality, and quality control seriously in his “wholly owned and operated ‘court’ system.” But, that would be someone other than Judge Garland!
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — Beneath the disingenuous legal blather of the 5th Circuit’s tone-deaf judges, this is the sentence that they are pronouncing on the world’s most vulnerable, without any due process or concern for human dignity. EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Here’s the decision denying the Administration’s request for stay in Texas v. Biden:
Although this was only a stay application, the tone of the decision left little doubt about the court’s Trumpist ideology and intention to block rational humanitarian human rights initiatives by the Administration. Not surprisingly, the 3-judge panel was all GOP appointees — two Trump, one Bush II
I wouldn’t expect any help from the Supremes. So, we’ll see whether right wing Federal Judges and GOP AGs can conduct a war on human rights and communities of color by taking over the immigration enforcement apparatus and re-instating Trump’s racist policies.
The Administration is not entirely blameless here. The extreme problems with MPP, including how it caused needless deaths, torture, kidnapping, extortion, rape, and other grotesque mistreatment for those returned, were well-documented going into the 2020 election. Indeed, Biden and Harris campaigned on a promise to reverse them!
Yet, not having a viable plan for restoring the legal asylum system and dealing humanely with new border arrivals “ready for prime time” by inauguration, and still not really having one, is problematic. Although some have “touted” the just-released asylum NPR as the “solution,” that system is not, by any stretch of the imagination, “ready for prime time” either, given the disastrous operational, personnel, “cultural, and “quality control” issues at both the Asylum Offices and EOIR, which could and should have been addressed before now and which could actually become worse if the NPR goes into effect without major internal and leadership changes at these dysfunctional agencies.
Moreover, it appears that DOJ Attorneys did a substandard job of documenting the many problems, adverse effects, and operational issues with MPP and the injustices and abuses it inflicted upon legal asylum seekers.
As opposed to the rather contrived interests of the states in furthering oppression, endorsed by the Fifth Circuit, the human interests of those seeking asylum under what was supposed to be a fair and functional legal system have fallen off the radar screen. The law still says that any individual arriving at the border, regardless of status, has a right to apply for asylum. That right, as well as the humanity of refugees and the legal and moral obligations of our nation, has been entirely abrogated by the Fifth Circuit.
In a well-functioning democracy, Congress could reform the law, bring the righty judges back under control, and restore Constitutional protections and human and civil rights, But, that would probably take a party different from today’s Dems. And, of course, with the support of the Supremes, the GOP is working furiously to suppress minority votes and insure GOP minority rule stretches long into the future.
