"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.
In a stunning blow to Republican leaders, the House rejected an effort to impeach Homeland Security Secretary Alejandro Mayorkas on Tuesday after a number of Republicans joined Democrats in opposing it.
The final vote was 214 to 216.
The vote was incredibly dramatic. It was tied 215 to 215 for several minutes, with every Democrat voting no along with three Republicans: Reps. Ken Buck (Colo.), Tom McClintock (Calif.) and Mike Gallagher (Wis.). A tied vote meant the effort would fail, so Democrats began shouting “Order!” at Speaker Mike Johnson (R-La.) to drop the gavel and end it.
Republicans were furiously prodding Gallagher to change his vote, but he wouldn’t. At the last minute, Rep. Blake Moore (R-Utah) voted no, not because he opposed the measure but because it would allow the House to bring it back up again another day. That bumped the final tally to 214-216.
Republicans appeared to be counting on one Democrat to be absent in order to squeak through the vote: Rep. Al Green of Texas. He had been out following surgery. But he showed up for Tuesday’s vote.
“I always intended to be here,” Green told reporters after the vote. “I had surgery. I’m recovering, but this was important.”
The whole effort was a political stunt, with one goal: helping Donald Trump look tough on border issues ahead of November’s presidential election. The GOP’s two articles of impeachment accused Mayorkas of “willful” refusal to comply with immigration laws, and of breaching public trust.
But they never produced any evidence that Mayorkas had committed crimes ― let alone crimes that meet the threshold for impeachable offenses. The Constitution spells out that impeachment is reserved for rare instances of “high crimes and misdemeanors,” like bribery or treason.
In the case of Mayorkas, a Cabinet secretary charged with carrying out immigration laws, the GOP was essentially attacking him for policies it doesn’t like.
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Read the full article at the link.
Thanks to GOP Reps. Ken Buck (Colo.), Tom McClintock (Calif.), and Mike Gallagher (Wis.) for standing up for common sense and the Constitution.
The determination of MAGAMike and his crew NOT to solve problems and instead to create unnecessary chaos, while wasting time and resources, is stunning, but perhaps not surprising!
This is an interview with Rev. Craig B. Mousin, an Adjunct Faculty member of DePaul University’s College of Law, Refugee and Forced Migration Studies Program, and the Grace School of Applied Diplomacy. The podcast critiques Department of Homeland Security Secretary Mayorkas’ recent NPR interview for what the interview omits in explaining 2023 asylum policies.
ACTION STEP
Imagine you are an asylum-seeker who has left your homeland. Listen to the interview with Secretary Mayorkas and consider its impact as you. Then write to the White House and Secretary Mayorkas and urge the Biden administration to follow the procedures and procedural protections of the Refugee Act of 1980: https://www.npr.org/people/4080709/steve-inskeep
We welcome your inquiries or suggestions for future podcasts. If you would like to ask more questions about our podcasts or comment, email us at: mission.depaul@gmail.com
This is an interview with Rev. Craig B. Mousin, an Adjunct Faculty member of DePaul University’s College of Law, Refugee and Forced Migration Studies Program, and the Grace School of Applied Diplomacy. The podcast critiques Department of Homeland Security Secretary Mayorkas’ recent NPR interview for what the interview omits in explaining 2023 asylum policies.
ACTION STEP
Imagine you are an asylum-seeker who has left your homeland. Listen to the interview with Secretary Mayorkas and consider its impact as you. Then write to the White House and Secretary Mayorkas and urge the Biden administration to follow the procedures and procedural protections of the Refugee Act of 1980: https://www.npr.org/people/4080709/steve-inskeep
We welcome your inquiries or suggestions for future podcasts. If you would like to ask more questions about our podcasts or comment, email us at: mission.depaul@gmail.com
Thanks for speaking out, Craig! Mayorkas’s interview was a shocking mix of intellectual dishonesty, insincerity, and misdirection worthy of a Trump Administration official. And, as Craig points out several times, the interviewer didn’t ask the right questions either.
Let’s understand what the Biden Administration’s arbitrary, ad hoc “parole program” that has been substituted for the Refugee Act of 1980 (“the law”), as amended, really does: 1) favors those who don’t necessarily meet the “refugee” definition (even if properly interpreted), but who have individual sponsors, over refugees; or 2) forces those who do meet the refugee definition into an inferior “parole status” that denies them the statutory path to a green card and eventual citizenship and other benefits that legal “refugee” or “asylum” status entails, or 3) a combination of 1) and 2).
Sound like a good idea? Of course not! It’s a prescription for a legal, humanitarian, and moral disaster!
Getting the USG to follow the law shouldn’t be this difficult. But, it is, because of the refusal of the Biden Administration to heed the advice of experts who not only know the law, but understand the border and the corrosive effect and real human consequences of unlawfully abandoning the statutory framework established by the Refugee Act of 1980.
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
Politico: Experts in the immigration field say they’re expecting a stressful and chaotic transition when a court-ordered deadline to end the Trump directive is hit, one that could drive a new rush to the border and intensify GOP criticism. See also States move to keep court from lifting Trump asylum policy.
Reuters: The United States is in talks with Mexico and other countries to facilitate the return of Venezuelan migrants to their homeland, a senior U.S. official said in a call with reporters on Tuesday.
TRAC: The South Texas Family Residential Center in Dilley, Texas, which currently houses single adults (mostly females) has more than doubled the number of individuals it is holding since September. ICE reports this facility run by CoreCivic now has the largest average daily population of detainees (1,562) in the country
CBS: McCarthy also threatened to use “the power of the purse and the power of subpoena” to investigate and derail the Biden administration’s immigration and border policies, saying Republican-led committees would hold oversight hearings near the U.S.-Mexico border.
LexisNexis: “Remand is required in this case because the BIA did not give consideration to all relevant evidence and principles of law, as those have been detailed by this Court’s recent decision in Scarlett v. Barr, 957 F.3d 316, 332–36 (2d Cir. 2020). … Because Mejia did not fear torture at the hands of the Guatemalan authorities, the relevant inquiry is whether government officials have acquiesced in likely third-party torture. To make this determination, the Court considers whether there is evidence that authorities knew of the torture or turned a blind eye to it, and “thereafter” breached their “responsibility to prevent” the possible torture.”
LexisNexis: “Having reviewed both the IJ’s and the BIA’s opinions, we hold that the agency did not err in finding that Garcia-Aranda failed to satisfy her burden of proof for asylum and withholding of removal, but that the agency applied incorrect standards when adjudicating Garcia-Aranda’s CAT claim.”
Law360: The Third Circuit has backed a decision denying a Dominican man’s bid for deportation relief based on his fear of being tortured, saying the procedural flaws he claimed tainted his proceedings — including the use of legal jargon and a videoconferencing glitch — did not prejudice him.
Law360: An English-speaking Cameroonian lost her chance to stay in the U.S. after the Eighth Circuit ruled that she failed to provide enough evidence showing that military officers had attacked her for her presumed support of Anglophone separatists.
LexisNexis: “Without record evidence that Phong orally waived his right to appeal before the IJ, we decline to address his alternative arguments that any waiver was unconsidered, unintelligent, or otherwise unenforceable. Rather, we remand to the BIA to develop the record on the waiver issue and, if it deems it appropriate, to consider Phong’s remaining arguments in the first instance.”
Law360: A divided Ninth Circuit on Monday ruled that the federal government was not constitutionally required to provide a Salvadoran immigrant a second bond hearing amid his prolonged detention during removal proceedings, while also bearing the burden to show he was a flight risk or danger to the community.
AP: The U.S. Department of Homeland Security has agreed to pay a Vermont-based immigrant advocacy organization $74,000 in legal fees to settle a lawsuit seeking information about whether advocates were being targeted by immigration agents because of their political activism.
USCIS: Today, U.S. Citizenship and Immigration Services announced it is extending and expanding previously announced filing fee exemptions and expedited application processing for certain Afghan nationals.
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Folks, it’s about re-instituting the law and screening system for legal asylum seekerswhich was in effect, in one form or another, for four decades before being illegally abrogated by the Trump Administration’s abusive use of Title 42. Outrageously, after promising to do better during the 2020 election campaign, the Biden Administration has “gone along to get along” with inflicting massive human rights violations under the Title 42 facade until finally ordered to comply with the law by U.S. District Judge Emmet G. Sullivan last month.
One of Judge Sullivan’s well-supported findings was that the scofflaw actions by both Trump and Biden officials had resulted in knowingly and intentionally inflicting “dire harm” on legal asylum applicants:
Sullivan wrote that the federal officials knew the order “would likely expel migrants to locations with a ‘high probability’ of ‘persecution, torture, violent assaults, or rape’ ” — and did so anyway.
“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals,” Sullivan wrote. “It is undisputed that the impact on migrants was indeed dire.”
Contrary to the “CYA BS” coming from Biden Administration officials, making the law work at the Southern Border requires neither currently unachievable “reform” legislation nor massive additions of personnel! It does, however, require better personnel, expert training, accountability, smarter use of resources, and enlightened, dynamic, courageous, principled, expert leadership currently glaringly lacking within the Biden Administration.
The Administration’s much ballyhooed, yet poorly conceived, ineptly and inconsistently implemented,“revised asylum regulations” have also failed to “leverage” thepotential for success, thus far producing only an anemic number of “first instance” asylum grants. This is far below the rate necessary for the process significantly to take pressure off the backlogged and dysfunctional Immigration Courts, one of the stated purposes of the regulations!Meanwhile, early indications are that Garland’s ill-advised regulatory time limits on certain arbitrarily-selected asylum applications have further diluted quality and just results for EOIR asylum decisions. That, folks, is in a system where disdain for both of these essential judicial traits is already rampant!
It’s not rocket science! It was well within the capability of the Biden Administration to establish a robust, functional asylum system had it acted with urgency and competency upon taking office in 2021:
Better Asylum Officers at USCIS and Immigration Judges at EOIR — well-qualified asylum experts with practical experience in the asylum system who will timely recognize and grant the many valid asylum claims in the first instance;
Cooperative agreements with NGOs and pro bono organizations to prescreen applications in an orderly manner and represent those who can establish a “credible fear;”
A new and improved BIA of qualified “practical scholars” in asylum law who will establish workable precedents and best practices that honestly reflect the generous approach to asylum required (but never carried out in practice or spirit) by the Supremes in Cardoza-Fonseca and the BIA itself in its long-ignored and consistently misapplied precedent in Mogharrabi;
An orderly refugee resettlement program administered under the auspices of the Feds for those granted asylum and for those whose claims can’t be expeditiously granted at the border and who therefore must present them in Immigration Court at some location away from the border.
The Biden Administration has nobody to blame but themselves for their massive legal, moral, and practical failures on the Southern Border! With House GOP nativist/restrictionists “sharpening their knives,” Mayorkas, Garland, Rice, and other Biden officials who have failed to restore the legal asylum system shouldn’t expect long-ignored and “affirmatively dissed” human rights experts and advocates to bail them out!
The massive abrogations of human rights, due process, the rule of law, common sense, and human decency that the GOP espouses — so-called enforcement and ineffective “deterrence” only approach — will NOT resolve the humanitarian issues with ongoing, often inevitable, refugee flows!
But, the Biden Administration’s inept approach to human rights has played right into the hands of these GOP White Nationalist politicos. That’s an inconceivable human tragedy for our nation and for the many legal refugees we turn away without due process or fair consideration of their life-threatening plight! These are refugees — legal immigrants — who should be allowed to enter legally and help our economy and our nation with their presence.
If we want refugees to apply “away from the border,” we must establish robust, timely, realistic refugee programs at or near places like Haiti, Venezuela, and the Northern Triangle that are sending us refugees. In the Refugee Act of 1980, Congress actually gave the President extraordinary discretionary authority to establish refugee processing directly in the countries the refugees are fleeing. This was a significant expansion of the UN refugee definition which requires a refugee to be “outside” his or her country of nationality. Yet, no less than the Trump and Obama Administrations before, President Biden has failed to “leverage” this powerful potential tool for establishing orderly refugee processing beyond our borders!
Meanwhile, down on the actual border, a place that Biden, Harris, Mayorkas, Garland, Rice, and other “high level architects of failed asylum policies” seldom, if ever, deign to visit, life, such as it is, goes on with the usual abuses heaped on asylum seekers patiently waiting to be fairly processed.
A rational observer might have thought that the Biden Administration would use the precious time before Dec. 22, 2022, reluctantly “gifted” to them by Judge Sullivan, to pre-screen potential asylum seekers already at ports of entry on the Mexican side. Those with credible fear and strong claims could be identified for orderly entries when legal ports of entry (finally) re-open on Dec. 22. Or, better yet, they could be “paroled” into the U.S. now and expeditiously granted asylum by Asylum Officers.
This would reduce the immediate pressure on the ports, eliminate unnecessary trips to backlogged Immigration Courts, and expedite these refugees’ legal status, work authorization, and transition to life in the U.S.
I have no idea what the Biden Administration has done with the time since Judge Sullivan “gifted” them a stay. The only noticeable actions have been more BS excuses, blame-shifting, and lowering expectations.
But, in reality, by their indolent approach to humanitarian issues and the law, in the interim the Administration has consciously left the fate of long-suffering and already “direly-harmed” legal asylum seekers to the Mexican Government. According to a recent NBC News report, the Mexican Government forcibly “rousted” many awaiting processing at a squalid camp near the border and “orbited them’ to “who knows where.” https://www.nbcnews.com/now/video/mexican-authorities-evict-venezuelan-migrants-from-border-camps-155516485544
Judge Sullivan might want to take note of this in assessing how the Biden DOJ has used the “preparedness time” that he reluctantly granted them following his order.
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
Texas Observer: But as the case of Felipe shows, immigration officials have continued to separate parents and children in violation of the policy. From the start of the new administration to August 2022—the latest month for which data has been published—U.S. authorities have reported at least 372 cases of family separation.
AP: Within hours, the Justice Department asked the judge to let the order take effect Dec. 21, giving it five weeks to prepare. Plaintiffs including the American Civil Liberties Union didn’t oppose the delay.
Politico: Party leaders are pushing hard for legislation aiding the undocumented population known as “Dreamers” before Republicans take the House. But GOP senators have little interest. See also House Judiciary GOP Highlights First Oversight Targets.
TRAC: The outcome for asylum seekers has long been influenced by the identity of the immigration judge assigned to hear their case. This continues to be true as documented by TRAC’s just released judge-by-judge report series, now updated through FY 2022. In Arlington, Virginia, judge denial rates ranged from 15 percent to 95 percent. In Boston, judge denial rates varied from 17 percent to 93.5 percent. In Chicago, they ranged from 16 percent to 90 percent, while in San Francisco one judge denied just 1 percent of the cases while another denied 95 percent.
NPR: Individuals held in immigration detention were barred from visits with relatives and friends for more than two years during the pandemic — far longer than federal prisons. In May, ICE lifted the ban, but immigrant advocates and people in detention centers argue that social visits have not been fully nor consistently reinstated.
Philly Inquirer: A second bus carrying immigrants from Texas arrived in Philadelphia Monday morning, a twice-in-six-days sequel that propelled the city to offer fresh welcome to more weary, uncertain travelers from the border.
AP: U.S. immigration authorities didn’t do enough to adequately vet or monitor a gynecologist in rural Georgia who performed unnecessary medical procedures on detained migrant women without their consent, according to results of a Senate investigation released Tuesday.
Intercept: According to ICE’s Performance-Based National Detention Standards, whenever there is a “calculated use of force,” staff are required to use a handheld camera to record the incident. The Intercept, with Kumar’s consent, requested the video through the Freedom of Information Act. After ICE refused to turn over the footage, The Intercept filed a lawsuit and ICE subsequently agreed to turn over the footage, but the agency redacted the faces and names of everyone who appears in it, aside from Kumar.
Guardian: A multi-country investigation by the Guardian finds at least 6,500 migrant workers from south Asia have died in Qatar in the 10 years since it was awarded the right to host the World Cup.
AG: (1) Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018), is overruled. (2) Pending the outcome of the rulemaking process, immigration judges and the Board of Immigration of Appeals may consider and, where appropriate, grant termination or dismissal of removal proceedings in certain types of limited circumstances, such as where a noncitizen has obtained lawful permanent residence after being placed in removal proceedings, where the pendency of removal proceedings causes adverse immigration consequences for a respondent who must travel abroad to obtain a visa, or where termination is necessary for the respondent to be eligible to seek immigration relief before United States Citizenship and Immigration Services.
Law360: The Biden administration on Thursday swept aside a Trump-era decision that mostly stripped immigration judges of their power to end removal proceedings, restoring immigration courts’ ability to terminate some deportation cases while it devises new policy.
Law360: A federal judge on Wednesday granted “with great reluctance” the Biden administration’s request for a five-week stay of his previous day’s order to end expulsions of migrants under Title 42, a public health provision the Trump administration began using at the start of the pandemic.
Law360: A split Fourth Circuit panel ordered the U.S. Board of Immigration Appeals to reconsider a Jamaican man’s removal order, criticizing the agency’s reasons for rejecting his claims that he diligently sought reversal of his order following a Supreme Court ruling.
LexisNexis: Michael Shannon writes: “I wanted to share a very good written decision from IJ Barbara Nelson, who granted asylum to my client based on her actual and imputed feminist political opinion under Hernandez-Chacon v. Barr.”
Law360: The federal government got the green light from an Arizona federal judge to conduct psychological examinations of asylum-seeking parents suing for damages for the alleged emotional trauma from being separated from their children at the southwestern U.S. border.
AILA: AILA and partners sent a letter to USCIS, EOIR, and OPLA addressing the unnecessary hurdles non-detained people in removal proceedings face in securing a biometrics appointment prior to their merits hearing.
AILA: USCIS notice of the automatic extension of the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal set to expire on 12/31/22, through 6/30/24. (87 FR 68717, 11/16/22)
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
After two years of “drinking the koolaid,” the party might be over for Mayorkas & Garland, as McCarthy & his insurrectionist/White Nationalist zanies “move in for the kill.”
Two years of ineptness, failure to clean house at DOJ and DHS, unkept promises to advocates, lack of guts to quickly reverse Trump’s massive scofflaw program of racist-inspired human rights abuses, arrogant “tuning out” of experts, lack of engagement and presence at the border have been largely ignored by Dems in both Houses. Indeed, other than a hearing on the Article 1 bill before Chair Lofgren (at which Garland was not required to appear and explain his due-process-denying mess and abject failure to reform EOIR), Dems failure to conduct meaningful oversight of the Administration’s mishandling of refugee programs, asylum, detention, asylum seeker resettlement, and Immigration Courts will be “coming home to roost” as insurrectionist, racists from the House GOP take aim at “snuffing” humanity and abolishing the rule of law!
Two years of inept, immoral, “Miller Litism” from the Administration leaves Dems with no defense and no supporters of their actions. Nativist restrictionists wanted “100% kill” @ border! Experts wanted a return to the rule of law, orderly processing, and due process. The Biden Administration delivered neither!
We tried to tell them, but they wouldn’t listen! No,McCarthy and his insurrectionist White Nationalist zany-haters have the floor. Just have to hope that historians are fully documenting the lies and Neo-Nazi views that these GOP hacks will be promoting — to help future generations understand how America “went off the rails” in the 21st century! Understandably, the GOP would rather focus on Biden’s failed immigration policies than on the rampant gun violence, hate crimes, child abuse, forced births, and dumbing down of America at the heart of their vile agenda!
🇺🇸Due Process Forever! The GOP’s “New McCarthyism,” Never!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
NPR: This has been the deadliest year ever for migrants trying to cross the U.S.-Mexico border. More than 800 migrants have died border-wide in the fiscal year that ends this week, according to internal government figures shared by a senior Border Patrol official.
NYT: For now, the changes are tiny; only 99 people since the end of May have completed what are called asylum merits interviews with an asylum officer and been fully evaluated under the new rules. Of those, 24 have been granted asylum, while most of the rest have had their cases sent back to the immigration court system for an appeal.
NYT: The decision to leave the cap at 125,000 was a contrast with the Trump administration, which severely restricted entry, but advocacy groups said migrants were still processed too slowly.
CNN: National security adviser Jake Sullivan and homeland security adviser Liz Sherwood-Randall, among other White House officials, met with the representatives of 19 countries at the White House to iron out the implementation of that declaration and appoint a special coordinator for each country, according to the senior administration official.
Intercept: The Warden of what was once one of the nation’s most notorious immigration detention facilities was arrested this week after allegedly killing one migrant and wounding another in the desert of rural West Texas.
Forbes: Compelling new research finds immigrants, including those with less than a high school degree, provide enormous fiscal benefits and a significant subsidy to U.S. taxpayers.
Reuters: In the first eight months of 2022, Royal Canadian Mounted Police intercepted 23,358 asylum-seekers crossing into the country at unofficial entry points, 13% more than all of 2017, when an influx of border-crossers at Roxham Road, near the Quebec-New York border, made international headlines.
Politico: Because cannabis remains illegal at a federal level, all employers — even those licensed at the state level — lack access to E-Verify, a government service that helps businesses verify immigration status. They also cannot use visa programs like H-2A and H-2B, which facilitate legal immigration of farmworkers in other industries… The Oregon legislature in the last 12 months set aside more than $31 million for law enforcement and advocacy groups working to combat illicit cannabis cultivation and help undocumented workers in the industry.
NPR: What is the connection between climate change, the movement of people around the globe, and the rise of xenophobic politicians? That’s the overarching question we’re hoping to answer with this reporting trip.
Law360: The U.S. Supreme Court on Monday agreed to review whether the Fifth Circuit was right to reject a Guatemalan woman’s deportation case on the grounds that she hadn’t gone through a final round of administrative appeals.
Law360: The Third Circuit has affirmed an Eastern District of Pennsylvania federal judge’s rejection of a Dominican Republic citizen’s appeal of his conviction on firearm and immigration law offenses — albeit for different reasons than the lower court.
Law360: The State Department will not have to schedule visa interviews for 12 winners of the 2022 Diversity Visa Lottery, after a D.C. federal judge found that the selectees didn’t show a high likelihood of proving that the Biden administration unlawfully delayed their interviews.
Law360: An Ohio federal judge on Wednesday said the U.S. Board of Immigration Appeals wrongly tossed a woman’s visa petition for her Ghanian husband over a previous “sham marriage,” saying whether the prior marriage was actually fake was open to dispute.
Law360: The American Civil Liberties Union on Wednesday hit the U.S. Department of Homeland Security with a Freedom of Information Act lawsuit in D.C. federal court, accusing the agency of improperly withholding access to records regarding U.S. Immigration and Customs Enforcement detainees’ access to counsel.
AP: The request comes in a lawsuit filed by migrants seeking compensation from the government after thousands of children were taken from parents in a policy maligned as inhumane by political and religious leaders around the world. Settlement talks with attorneys and the government broke down late last year.
AP: A companion complaint Wednesday to the office of civil rights at the U.S. Department of Homeland Security documents retaliation, including restrictions on access to legal representation and a falsified accusation of misconduct against an immigrant under the Prison Rape Elimination Act.
Reuters: Two U.S. government employees said they experienced retaliation after they sounded alarms about the conditions at Fort Bliss, which has been used for emergency housing since March 2021, according to the report issued by the U.S. Health and Human Services (HHS) inspector general’s office.
USCIS: The Department of Homeland Security (DHS) today announced an extension of Temporary Protected Status (TPS) for Burma for an additional 18 months, from Nov. 26, 2022, through May 25, 2024, due to extraordinary and temporary conditions in Burma that prevent individuals from safely returning.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Despite disingenuous claims otherwise, the overhyped “launch” of asylum “reform” has been a “dud” — producing little for the Administration but even less for legitimate refugees and due process advocates caught up in the mind-boggling dysfunction of the failed Mayorkas/Garland asylum system. PHOTO: NASA/Joel Kowsky Public Realm
As border deaths continue to soar, nativist GOP Governors use humans as political pawns, and conditions in refugee sending countries deteriorate, the Biden Administration’s failed human rights/racial justice bureaucracy has no answers!
By attempting to replicate, remarkably even touting, the unrealistically high denial rates produced by the previous system — too often the result of badly flawed adjudications, poorly trained officers and judges, lack of effective representation, chronic systemic anti-asylum bias, and overly restrictive, anti-asylum precedents produced by a BIA loaded with anti-asylum zealots by the Trump Administration — Mayorkas and Garland have basically guaranteed continuing human rights abuses and defective adjudication of claims.
Truth is, even during the height of the overt anti-asylum program of the Trump Administration, approximately 70% of those whose claims were “referred” by the Asylum Office were eventually granted protection in Immigration Court.
According to Human Rights First (“HRF”), an international human rights organization, in Fiscal Year 2021, 68% of asylum cases referred to immigration court by the AO were subsequently granted protection.[1] With nearly 70% of claims being granted in FY2021, this represents a clear and apparent waste of judicial resources.
And, this was with a legal system with overly restrictive precedents that clearly and improperly manipulated generous asylum laws AGAINST refugees, often hindered effective representation, and was “overseen” by many Immigration Judges who were hand-selected or retained by the Trump DOJ because they were “programmed to deny” asylum at outrageous rates. By granting only a pathetic 24 of 99 cases that actually were decided over four months, and “referring” the rest to Garland’s beyond dysfunctional “courts” (currently fighting an indescribably stupid all-out “war” with NGOs and pro bono attorneys), Mayorkas hasn’t come anywhere close to “leveraging” the system to locate, prioritize, timely grant many more legitimate cases, and drastically reduce the huge number of unnecessary referrals to EOIR.
Rather than “cleaning house” at USCIS and EOIR, bringing in dynamic, qualified leaders, expert adjudicators and judges who can timely recognize the many legitimate claims, working with NGOs and pro bono groups to get all asylum seekers represented, and utilizing the expert training resources that currently exist outside Government, Mayorkas and Garland are perpetrating the same anti-asylum myths spewed out by Miller, Trump, and company! Essentially, instead of fixing the fatal flaws in the current system, the Biden Administration has chosen to institutionalize and expedite them! That’s insane!
The Biden Administration’s failure to do the butt-kicking, bold, thoughtful work necessary to establish robust, timely, efficient, refugee and asylum systems is dragging down our legal system, promoting racial injustice, perpetrating xenophobic myths, advancing “worst practices,” harming, sometimes killing, legitimate refugees fleeing repressive regimes, and denying American communities legal residents who could be using their skills to help build a stronger economy and a better future for America.
With thousands of asylum seekers from countries where persecution is well-documented being “orbited” by nativist GOP Governors, the Biden Administration was presented with a golden opportunity to work with NGOs, states, and local governments to coordinate resettlement, get them competently represented, and grant asylum in a fair and timely manner, thus demonstrating how an improved asylum system could work with proper staffing, attitudes, and legal guidance. Instead, the Administration has chosen to waste time on a “thudding dud” of a pilot that shows a stunning lack of leadership, courage, imagination, initiative, humanity, and respect for the rule of law!
American Justice takes a grim turn as righty Trump judges take over immigration enforcement! Reaper Image: Hernan Fednan, Creative Commons LicenseCamilo Montoya-Galvez CBS Journalist
Judge voids Biden administration restrictions on immigration arrests and deportations
BY CAMILO MONTOYA-GALVEZ
UPDATED ON: JUNE 11, 2022 / 10:35 AM / CBS NEWS
A federal judge in Texas on Friday granted a request by Republican-led states to throw out Biden administration rules that placed limits on whom federal immigration agents should seek to arrest and deport from the U.S., declaring the directive unlawful.
U.S. District Court Judge Drew Tipton said Homeland Security Secretary Alejandro Mayorkas did not have the authority to issue a September 2021 memo that directed immigration officials to focus on arresting immigrants deemed to threaten public safety or national security and migrants who recently crossed a U.S. border illegally.
Tipton, an appointee of former President Donald Trump, agreed to void Mayorkas’ memo, which was challenged by Republican officials in Texas and Louisiana. But he paused his ruling for seven days to give the Biden administration time to appeal.
Friday’s ruling is the latest setback in federal court for the Biden administration’s immigration agenda, which has faced more than a dozen lawsuits by Texas and other Republican-controlled states.
Federal judges appointed by Mr. Trump have blocked the Biden administration from ending a policy that requires asylum-seekers to wait for their court hearings in Mexico and a pandemic-era measure that allows border officials to quickly expel migrants. Tipton himself halted an 100-day moratorium on deportations during Mr. Biden’s first month in office, as well as an earlier directive that limited immigration arrests.
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Read the entire report at the link. Many thanks to Nolan Rappaport, Contributor to The Hill, for sending this my way!
So, righty U.S. District Judges and GOP State AG’s have figured out a way to take over basic immigration enforcement from the Feds. I assume that they will “waive” any claims to immunity from suits against themselves as the inevitable human rights and legal abuses caused by unbridled, uncontrolled, and often irrational and wasteful, DHS Enforcement pile up. These judges and AGs have now become part of the problem. We’ll see how they solve it.
I also find it interesting that righty U.S. District Judges, part of a court system that only just barely manages to keep its head above water because the vast, vast majority of Federal crimes and violations are never fully investigated or prosecuted, have such unbridled enthusiasm for unaccountable, unlimited immigration enforcement.
Part of this right-wing “judicial scam” is to grotesquely exaggerate the “harm” to states and to minimize or ignore the well-documented legal, human rights, and practical problems with “out of control” immigration enforcement that was intentionally used by the Trump regime to “terrorize” ethnic communities. These communities contain “mixed populations” of citizens, legal residents, those living here with legal permission to work, and the undocumented.
I also find it notable that the so-called “plenary power” over immigration appears to have passed from the AWOL Congress and the fumbling Executive, where it historically resided, to the Federal Judiciary, often those serving at the lowest levels —U.S. District Judges, the BIA, and Immigration Judges (although to be fair, the latter two groups are Executive Branch employees operating in a dysfunctional system that often appears to have no rhyme, reason, or defined mission.)
This is an unusual development in the right-wing conservative world of (bogus) “judicial restraint” to be sure. I guess the doctrine of “judicial restraint” is limited to stopping liberal judges from correcting egregious legal mistakes that ruin individual human lives. That’s sure how it looks to me!
The “Tipton Gang” might have a harder time taking over the dysfunctional, out of control, and backlogged Immigration Courts where the results of poor enforcement decisions often go to die in the 1.8 million plus backlog.
The Immigration Courts could prove more of a challenge because Republicans have stuffed the law with various jurisdiction-limiting and jurisdiction-stripping provisions intended to make it difficult or impossible to challenge individual immigration enforcement decisions outside the context of a petition to review a final order of removal in the Courts of Appeals.
Arguing “no jurisdiction/no review” in immigration cases is one thing that DOJ attorneys are very good at and, more often than not, successful.
Otherwise, Garland’s DOJ legal team has been less than stellar at defending changes meant to undo portions of the Trump regime’s misguided, often White Nationalist inspired, anti-immigrant agenda. Perhaps it’s time for the Biden Administration to “reshuffle the deck.” Maybe they should bring in some of the progressive litigation experts who succeeded in blocking some of the worst parts of the Trump-Miller assault on the rule of law and humanity to aggressively defend the job of restoring at least some modicum of due process, fundamental fairness, and rationality to the broken and reeling immigration enforcement system.
Unfortunately, you have to get “down to the fine print” (page 13 of 20) find the paragraph that should be the “centerpiece of restoring the rule of law” — a functional legal asylum processing at ports of entry that would encourage refugees to present themselves there for fair and humane processing rather than seeking irregular entry with the help of smugglers.
Port of Entry Processing
The imposition of the Title 42 public health Order severely restricted the ability of undocumented noncitizens to present at POEs for inspection and processing under Title 8. The closure of this immigration pathway for much of the time Title 42 has been in effect has driven people between POEs at the hands of the cartels. Returning to robust POE processing is an essential part of DHS border security efforts. Beginning in the summer of 2021, DHS restarted processing vulnerable individuals through POEs under Title 8, on a case-by-case basis for humanitarian reasons, pursuant to the exception criteria laid out in CDC’s Title 42 Order. These efforts, which we have recently expanded, offer individuals in vulnerable situations a safe and orderly method to submit their information in advance and present at POEs for inspection and subsequent immigration processing under Title 8. We also have enhanced Title 8 POE processing through the development of the CBP One mobile application, which powers advanced information submission and appointment scheduling prior to an individual presenting at a POE. We will make this tool publicly available and continue to expand its use to facilitate orderly immigration processing at POEs.
13 of 20
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The failure of Garland to appoint a new, expert BIA committed to due process and providing fair, practical positive guidance on the generous application of asylum law foreshadowed by INS v. Cardoza Fonseca a quarter of a century ago, but never realized in practice, is likely to become a millstone around the Administration’s neck. There is no substitute for due process and fundamental fairness. The current dysfunctional, mismanaged, and inappropriately staffed EOIR is not capable of providing the necessary leadership, consistency, and accountability.
Also, in light of U.S. District Judge Robert Summerhays’s“off the wall” decision in Arizona v. CDC, it’s not clear that Title 42 will ever be lifted.
Secretary Mayorkas Designates Cameroon for Temporary Protected Status for 18 Months
Release Date: April 15, 2022
WASHINGTON— Today, the Department of Homeland Security (DHS) announced the designation of Cameroon for Temporary Protected Status (TPS) for 18 months. Only individuals who are already residing in the United States as of April 14, 2022, will be eligible for TPS.
“The United States recognizes the ongoing armed conflict in Cameroon, and we will provide temporary protection to those in need,” said Secretary Alejandro N. Mayorkas. “Cameroonian nationals currently residing in the U.S. who cannot safely return due to the extreme violence perpetrated by government forces and armed separatists, and a rise in attacks led by Boko Haram, will be able to remain and work in the United States until conditions in their home country improve.”
A country may be designated for TPS when conditions in the country fall into one or more of the three statutory bases for designation: ongoing armed conflict, environmental disaster, or extraordinary and temporary conditions. This designation is based on both ongoing armed conflict and extraordinary and temporary conditions in Cameroon that prevent Cameroonian nationals, and those of no nationality who last habitually resided in Cameroon, from returning to Cameroon safely. The conditions result from the extreme violence between government forces and armed separatists and a significant rise in attacks from Boko Haram, the combination of which has triggered a humanitarian crisis. Extreme violence and the widespread destruction of civilian infrastructure have led to economic instability, food insecurity, and several hundred thousand displaced Cameroonians without access to schools, hospitals, and other critical services.
This marks the first time the Secretary of DHS will permit qualifying nationals of Cameroon to remain temporarily in the United States pursuant to a TPS designation of that country. Individuals eligible for TPS under this designation must have continuously resided in the United States since April 14, 2022. Individuals who attempt to travel to the United States after April 14, 2022 will not be eligible for TPS. Cameroon’s 18-month designation will go into effect on the publication date of the forthcoming Federal Register notice. The Federal Register notice will provide instructions for applying for TPS and an Employment Authorization Document (EAD). TPS applicants must meet all eligibility requirements and undergo security and background checks.
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According to TRAC, there were 3,191 pending Cameroonian cases in Immigration Court as of March 22, 2022. https://trac.syr.edu/phptools/immigration/court_backlog/. On the basis of my experience, I would guess that most of these are in the mid-Atlantic region.
Cameroonian asylum cases were a “staple” in Arlington over my 13 years on the bench ending on June 30, 2016. For example, in FY 2012, they were approximately 9% of my asylum docket, although that number dwindled between then and my retirement.
The other 1/3 of cases are disposed of in “other” ways. This indicates that with TPS as a tool, almost all of the pending Cameroonian cases at EOIR could be resolved in short order without diminishing anyone’s rights.
That’s a “drop in the bucket” on a 1.8 million case backlog. But, it does suggest that better docket management tools, ones that comply with due process, are available to Immigration Judges and could be built upon for the future with more visionary and due-process-focused leadership at EOIR and DOJ.
Sadly, this profile also confirms that the Biden Administration’s illegal use of Title 42 to return Cameroonians to harm’s way without an opportunity to apply for asylum has been exactly the race-based, grotesque violation of asylum laws, human rights, and human dignity that critics have asserted.
It also graphically demonstrates why real Democrats, core progressive supporters who put Biden and company in office, must aggressively stand up against the disgraceful agitation by a minority of Dem legislators and uninformed, amoral politicos within the Administration to retain the already totally unjustifiable Title 42 blockade!
Continuing violation of domestic and international law through use of Title 42 is NOT, I repeat NOT, an option! Yes, the Administration needs to get a plan in place for an orderly restoration of asylum processing for Cameroonians, Haitians, Latin Americans, Ukrainians, Russians, Afghans, and allother nationalities at our Southern Border.
Fair, humane, advance processing of those seeking asylum at the border NOW is the essential key to avoiding a mess on May 23. Pumping credibility, efficiency, humanity, and proper generosity into the asylum system at the border NOW will reduce the chances of an “immediate backlog” come May 23.
More importantly, showing that our laws can work in a fair, humane, and efficient way will encourage individuals seeking asylum to come to legal ports of entry to apply, rather than seeking more dangerous and difficult irregular entry that does not hold out the same prospects for rapidly obtaining legal status. Why wouldn’t legitimate asylum seekers present themselves at legal ports of entry if we had a fair, functioning, transparent system for processing them?
By eliminating the need and reducing the motivation for legal asylum seekers to attempt irregular entries to obtain refuge, the traffic between ports of entry should be reduced even though of course not eliminated. And the “expedited removal” procedures available under current law to CBP for those apprehended without credible asylum claims while attempting unauthorized entires are perfectly adequate to quickly process removals of those with no legal claim to be here!
Assuming that all or most asylum seekers will attempt unauthorized entries between legal ports will become a dangerous “self-fulfilling prophecy.” Yet, to the extent that the Biden Administration has a plan, it appears to be driven by the misguided notion that all the “action” will be at unauthorized crossing points. See, e.g., https://immigrationimpact.com/2022/04/12/what-is-bidens-plan-to-end-title-42/ (a sad commentary on wobbly, uninformed, unprincipled, pedestrian, un-creative thinking about an important solvable problem if I’ve ever seen one).
That’s only going to happen if the Administration continues to ignore the pressing need for immediate steps to establish the credibility of the asylum system at ports of entry.
The Administration went to considerable trouble to establish a “new” regulatory framework for processing asylum claims at the border (which becomes effective on May 28). I was one of those who pointed out serious flaws in the new system adopted.
One of the main defects is that for integrity, legal guidance, and effective supervision it heavily relies on Garland’s dysfunctional, hopelessly backlogged, and still anti-asylum-tilted Immigration Courts, at least where some of the common types of asylum applications at the border, like those from Northern Triangle countries, are concerned. These “courts that aren’t really courts” have shown a disturbing lack of asylum expertise and little effective commitment to a fair and practical application of asylum laws nationwide. It’s basically still a “denial factory” — just as Sessions and Barr staffed and manipulated it to be. That has spelled disaster in the past and will continue to do so in the future unless it can be “sidestepped” by granting more cases at the border without calling on these “courts.”
There’s where the “new system” has potential to work! One key advantage of the “new system” that many of us applauded is the potential for the USCIS Asylum Office expeditiously to grant many more claims at or near the border, thus entirely avoiding the broken Immigration Courts, prolonged detention, and releasing individuals to the interior without status.
As asylees, refugees can be admitted in a legal, work-authorized status right off the bat. Not only does that eliminate the never-ending debate about appearing for later Immigration Court hearings, but it also helps the economy and resettlement by putting individuals anxious to support themselves and their families directly into the workforce at a time when we need workers in many segments of the economy! It also avoids the current wildly inconsistent, unprincipled, and often defective asylum adjudication that now plagues Garland’s Immigration Courts, particularly in border areas and detention centers.
But, success isn’t going to happen by “magical thinking,”operating in “Stephen Miller’s world,” repeating platitudes about border crises, and reviving the past mistakes of “enforcement/deterrence only regimes.” I call BS! A “border crisis” is what happened in Poland! We’re not even remotely close to that!
It requires the Biden Administration to get the lead out, shut down the “naysayers,” work with NGOs, and get the expertise and manpower in place NOW at ports of entry and in Mexico to achieve success on May 23! But, continuing the illegal Title 42 charade/blockade is not an option that is on the table!
For the last year, “Courtside” has been ripping the incredibly poor, timid, stunning lack of vision leadership, expertise, common sense, and morality in the Biden Administration’s failure to restore and expand a robust overseas refugee program and to enforce the rule of law and due process in our asylum system at the border and in the US. Even as I write this, Garland’s failed BIA, with too many Trump restrictionist holdover judges, continues to crank out bad asylum precedents and anti-immigrant legally incorrect appellate decisions and precedents.
DOJ mindlessly continues to advance and defend the indefensible in Federal Court. It’s “Miller Lite” on steroids! Squandering taxpayer money, wasting scarce pro bono resources, and worst of all, endangering human lives!
This guy has to be thrilled with Garland’s approach to human rights, racial justice, and due process @ DOJ! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
Essential human rights issues like providing definitive, generous, positive guidance to move gender-based asylum cases through the system, correcting “intentionally overly restrictive” and ridiculously hyper-technical, legally wrong, highly impractical applications of supposedly “generous” asylum laws, lack of common sense, expertise, understanding, and humanity remain endemic in Garland’s broken “court” system and the USCIS Asylum Offices which are supposed to be under their legal guidance.
The border effectively remains illegally and irrationally closed to refugees seeking asylum! Absurdly, the decisions as to who lives and who dies are left to the unfettered, unreviewable, “discretion” of Border Patrol Agents who are glaringly unqualified to make them. There aren’t even any known criteria in effect!
Indeed, that’s the precise reason why Congress created Asylum Officers and put them and Immigration Judges into the life or death asylum screening process, only to have Trump abrogate the law as Federal Courts meekly and fecklessly stood by! Hardly America’s finest moment!
There is plenty of irresponsibility to go around! But, dilatory “What Me Worry” AG Merrick Garland and his feckless lieutenants Lisa Monaco, Vanita Gupta, Kristen Clarke, and Liz Prelogar, along with DHS Secretary Alejandro Mayorkas, deserve “special censure” for the brewing, unnecessarily out of control humanitarian and equal justice crisis!
Garland’s tone-deaf approach to human rights and the rule of law now threatens the international order and the lives of perhaps millions of refugees and asylum seekers! PHOTO: Wikipedia Commons
The Biden administration’s immigration policy to date has been shambling. It can now do one big thing right: step up, grant humanitarian parole and help resettle Ukrainian refugees.
Catherine Rampell Opinion Columnist Washington Post
Trump’s xenophobic policies had consequences beyond the cruelty inflicted while he was in office. Ultimately, they hobbled our ability to provide aid during a humanitarian catastrophe and thereby protect our own national security interests. Now, Biden must not only respond to the current crisis but also repair our institutions so that we have greater capacity to deal with future ones.
I’m sure traumatized Ukrainians and Russian dissidents being improperly turned back at our border were comforted by the following tone-deaf blather from Mayorkas as reported by Deepa Fernandes in the SF Chron:
Deepa Fernandes Immigration Reporter SF Chronicle PHOTO: SF Chron
On Thursday, Homeland Security Secretary Alejandro N. Mayorkas told reporters that Border Patrol agents were reminded they have some leeway with regard to enforcing Title 42, particularly when it comes to those fleeing the crisis in Ukraine, BuzzFeed News reported.
“This was policy guidance that reminded (border officers) of those individualized determinations and their applicability to Ukrainian nationals as they apply to everyone else,” the online news outlet quoted Mayorkas as telling reporters.
Come on, man! You’ve got to be kidding me!
Belatedly, it appears that the Biden Administration is now “considering” restoring the rule of law at the borders (something they actually promised during the election), according toAlexandra Meeks over at CNN:
ALexandra Meeks Current News Reporter CNN PHOTO: Linkedin
The Biden administration is preparing for the potential of mass migration to the US-Mexico border when a Trump-era pandemic emergency rule ends. The influx is expected because officials are considering the possibility of terminating a public health order known as Title 42, which border authorities have relied on to turn away migrants, sources familiar with the discussions said. Internal documents, first reported by Axios, estimate around 170,000 people may be coming to the US border and some 25,000 migrants are already in shelters in Mexico. The Department of Homeland Security has asked department personnel to volunteer at the Mexico border in response.
But, it’s not clear that they have any real plan in mind. That’s certainly the case in Garland’s dysfunctional, astoundingly backlogged (1.6 million known cases) Immigration “Courts” led by a Trump restrictionist BIA. “Gauleiter” Stephen Miller must evilly chuckle every morning at how Garland has left his “designed for White Nationalism” system largely in place and continuing to shaft and screw asylum seekers on a daily basis.
And, no, 170,000 migrants arriving at the border, not all of whom are seeking asylum, isn’t a “mass migration” emergency! It’s a fairly predictable movement of migrants at a pace that should be well within the capabilities of our nation.
Treat them with respect. Promptly and properly screen them with qualified Asylum Officers. Timely welcome those many who qualify for protection with competent expert Immigration Judges. End the anti-asylum nonsense and move the many grantable asylum, withholding, and CAT cases through the system. Develop humane, orderly responses for those who are rejected. Get in place a new BIA that understands asylum law, due process, and human rights. Empower them to “knock heads” of IJs and Asylum Officers who won’t let go of the White Nationalist “reject, don’t protect” program!”
It’s not “rocket science.” 🚀 Not by a long shot!
No, an “emergency mass migration situation” is 3.2 million refugees fleeing war in Ukraine in three weeks and arriving in allied nations like Poland, Romania, and Moldova who have far fewer resources and ability to respond than the U.S.! These are also nations who legitimately fear that they could be next on Russia’s “hit list.”
And, while the humanitarian crisis is brewing, what’s Garland up to? He beefing up his already-record-setting Immigration Court backlog with “kiddie cases” (0-4 year olds, incredibly) — to the extent anyone can even figure it out, given his notoriously flawed and unprofessional record keeping at EOIR. See, e.g., https://trac.syr.edu/immigration/reports/681/.
Garland and his top lieutenants are too busy filling the Immigration Courts with these desperados in the 0-4 age group to worry about restoring due process or treating asylum seekers fairly! PHOTO: Sean Choe, Creative Commons License
Honestly! But, don’t say that “Courtside,” Jeffrey Chase Blog, Dan Kowalski, ImmigrationProf Blog, CGRS, Human Rights First, NIJC, AILA, KIND, NCIJ, ABA, and many other experts didn’t warn against this grotesque failure long ago — often predating the 2020 election!
I understand that “no fly zones” are more complicated than most American pols and media wags think and that there are challenges to waging war from afar without actually declaring war on Russia. But, repairing our refugee, asylum, and immigration systems, and restoring due process to our courts are not in this category of difficulty.
It’s beyond time for the Biden Administration, particularly Mayorkas and Garland, to get the lead out, grow backbones, get rid of the remnants of Trumpism in their ranks— personnel, substance, process — and run a refugee and asylum legal system that serves our and our allies’ needs. One that is values and law based! One that our nation can be proud of, rather than embarrassed before the world! End the Clown Show, in Falls Church and throughout our muddling immigration and (non) human rights bureaucracy!🤡
The Garland/Mayorkas “Plan” for human rights and immigrant justice is proving as deadly as it is dysfunctional. PHOTO: Thomas Hawk Creative Commons Amateur Night
Time’s a wasting and people are dying! ⚰️ Enough of “Amateur Night at the Bijou.”☠️ Nobody’s laughing!🤮
Few Americans favor mass deportations, and with good reason — a large majority of the estimated 10.5 million undocumented immigrants in the United States have been here for at least a decade, including more than 4 in 5 Mexican migrants. Many are fixtures in their community, with U.S. citizen spouses and children; the vast majority are employed, and some own their homes and businesses.
So it was not a radical idea when Homeland Security Secretary Alejandro Mayorkas issued new enforcement guidelines last fall that urged deportation agents to focus their efforts on actual threats to public and national safety, as well as border security. As for long-term migrants, the bulk of whom are law-abiding, Mr. Mayorkas urged Immigration and Customs Enforcement officials to use some common sense. “The fact that an individual is a removable noncitizen should not alone be the basis of an enforcement action against them,” he said.
. . . .
Despite the resistance, however, they appear to be having a preliminary and positive effect of tailoring enforcement to unauthorized immigrants who are dangerous. In the first 13 months of the Biden administration, 44 percent of deported migrants had been convicted of felonies or aggravated felonies, compared with just 18 percent during the Trump administration, according to internal ICE figures. For the same period, there was also a sharp jump, compared with under the Trump administration, in the number of arrests of migrants who had earlier convictions for aggravated felonies.
At the same time, the number of migrants held in ICE detention facilities has dropped sharply. At the end of February, roughly 18,000 migrants were detained, and the vast majority had no criminal record or had committed only minor offenses, such as traffic violations, according to the Transactional Records Access Clearinghouse at Syracuse University. By contrast, nearly three times as many migrants were held for much of 2019, when the Trump anti-immigrant blitz was in full force.
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It’s not lax enforcement to refrain from arresting very old or very young migrants, or to think twice about a deportation that would tear apart a family. It’s an intelligent application of the law.
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Read the full editorial at the link.
The Post is right. But, unfortunately, by not making this “smarter PD” part of an overall plan to reduce backlogs, reform the Immigration Courts, re-establish the legal asylum and refugee systems, and end unnecessary detention, the Biden Administration has failed to take full advantage of this promising development.
By “running” from immigration improvements rather than embracing them, they also fail to to get credit for replacing the “maliciously incompetent,” demonstrably not in the national interest Trump/Miller/Homan White Nationalist nativist policies with a functioning system that actually serves the national interest and works as well as can be expected without legislative reforms.
A major problem remains the underperformance of DOJ and EOIR under AG Garland. Without the enlightened leadership and better personnel that should now be in place, Garland has failed to “leverage and build upon” improvements in DHS enforcement priorities to slash backlog and advance due process at EOIR.
Indeed, disturbingly, Garland has actually built new Immigration Court backlogat a record pace, while inexplicably relying on a “holdover Miller Lite” BIA that continues to deliver bad precedents, resulting in increased wasteful litigation and backlog-building remands from Circuit Courts. He has also ignored the many opportunities for harnessing the innovative ideas and high-level pro bono advocacy skills developed by the private sector in response to the “Trump onslaught” to dramatically advance and increase quality representation before the Immigration Courts.
The grotesque mismanagement of EOIR by the Trump DOJ resulted in a backlog of approximately 12,000 pending BIA appeals at the end of FY 2017 exploding to more than 84,000 by the end of FY 2020 — a mind-boggling 700% increase!https://www.justice.gov/eoir/page/file/1248501/download
Yet, curiously, there has been no major personnel shakeup at EOIR under Garland. The Trump-era “hand selected” BIA whose skewed anti-asylum, anti-immigrant “jurisprudence” helped create this mess remains largely intact.
Most of the EOIR senior managers who helped DOJ engineer this unmitigated disaster remain in their jobs. Garland has sent a message that there will be no accountability for “going along to get along” with the White Nationalist war on immigrants and that he isn’t interested in expertise, fundamental fairness, creativity, or dynamic leadership by example in his reeling “court system!”
Yet, Garland continues to “blow off” and “lock out” the private/NGO sector experts who could bring rational professional docket management, higher representation rates, and resulting reductions in detention to his dysfunctional system. Instead, he continues the “Amateur Night at the Bijou” approach of unilateral “Aimless Docket Reshuffling” and endless “built to fail gimmicks” designed by bureaucrats to meet political agendas without meaningful input from and consideration of the views of those who have actual private sector experience litigating in his broken system.
How does the make sense? It doesn’t!
Of course, effective, dynamic, courageous management of EOIR to focus on constitutionally required due process would provoke reactions from the GOP nativist right, including obstructive litigation. That’s why Garland also needs better litigators at DOJ: Tough, experienced “due process warriors” who will aggressively and expertly defend and advance the Executive’s authority to rationally administer the law, allocate resources wisely and prudently, and to recognize and vindicate civil and constitutional rights that have been suppressed by GOP politicos and some of their reactionary Federal Judges.
Bottom line: Probably the majority of those 1.6 million individuals rotting in EOIR’s largely self-created backlog fit the Post’s “lead-in” description above: “Many are fixtures in their community, with U.S. citizen spouses and children; the vast majority are employed, and some own their homes and businesses.”
Many could be granted asylum or other protection under proper interpretations of the law or granted “cancellation of removal” but for the unrealistic, anachronistic 4,000 annual “numerical cap” imposed by Congress decades ago. Others could be granted Temporary Protected Status (“TPS”) just as it recently was extended to Ukrainians in the U.S.
Very few are “criminals” or others who should be “priorities” for removal. Most are actively contributing to our society and many are paying taxes. In most cases, removing individuals in the EOIR backlog from the U.S., even if possible, would be a net loss for our society.
Yet, the uncontrolled, undifferentiated EOIR backlog prevents the Immigration Courts from working in “real time” on more recent cases that might actually be proper priorities.What’s the good of a more rational and professional system at DHS Enforcement if the Immigration Courts under Garland remain discombobulated? The system will not change without dynamic expert leadership at the top and an infusion of better judges, particularly at the appellate level where precedents are set and “best practices” and some measure of fair and consistent adjudication can be established and enforced.
Immigration is a complex, often convoluted system. Without a comprehensive plan led by outside experts that fixes the Immigration Courts and restores a robust functional asylum system at our borders, the positive enforcement changes initiated by Mayorkas will continue to have limited impact. And, ironically, that will play right into the hands of the Millers and Homans of the world who would like to see democracy fail, irrationality prevail, and cruelty rule!
December 6 , 2021
The Round Table of Former Immigration Judges is a group of 51 former Immigration Judges and Members of the Board of Immigration Appeals who are committed to the principles of due process, fairness, and transparency in our Immigration Court system.
There has been no greater affront to due process, fairness, and transparency than the MPP, or “Remain in Mexico” policy. Instituted under the Trump Administration, it appears to have been motivated by nothing other than cruelty.
Tragically, to comply with a most misguided court order, the Biden Administration, which promised us better, is today not only resuming the program with most of its cruelty intact, but expanding its scope to now apply to nationals of all Western Hemisphere countries.
In 1997, the BIA issued a precedent decision, Matter of S-M-J-, that remains binding on Immigration Judges and ICE prosecutors. In that decision, the BIA recognized our government’s “obligation to uphold international refugee law, including the United States’ obligation to extend refuge where such refuge is warranted. That is, immigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done.”1
One of the cases cited by the BIA was Freeport-McMoRan Oil & Gas Co. v. FERC,2 a decision which concluded: “We find it astonishing that an attorney for a federal administrative agency could so unblushingly deny that a government lawyer has obligations that might sometimes trump the desire to pound an opponent into submission.”
The MPP policy constitutes the pounding into submission of those who, if found to qualify for asylum, we are obliged by international law to admit, protect, and afford numerous fundamental rights. The “pounding” in this instance is literal, with reports of those lawfully pursuing their right to seek asylum in the U.S. being subject to kidnappings, extortion, sexual abuse, and other
1 Matter of S-M-J-, 21 I&N Dec. 722, 728 (BIA 1997). 2 962 F.2d 45, 48 (D.C. Cir. 1992).
threats and physical attacks.3 This is the antithesis of fairness, in which the parties are not afforded equal access to justice.
Concerning due process, a statement issued by the union representing USCIS Asylum Officers, whose members interview asylum applicants subjected to the program, noted that MPP denies those impacted of meaningful access to counsel, and further impedes their ability to gather evidence and access necessary resources to prepare their cases.4 As former judges who regularly decided asylum claims, we can vouch for the importance of representation and access to evidence, including the opinions of country condition experts, in successfully obtaining asylum. Yet according to a report issued during the Trump Administration, only four percent of those forced to remain in Mexico under MPP were able to obtain representation.5 As of course, DHS attorneys are not similarly impeded, the policy thus fails to afford the parties a level playing field.
As to transparency, one former Immigration Judge from our group who attempted to observe MPP hearings under the prior administration was prevented from doing so despite having the consent of the asylum seeker to be present. A letter from our group to the EOIR Director and the Chief Immigration Judge expressing our concern went unanswered.
Like many others who understand the importance that a fair and independent court system plays in a free and democratic society, we had hoped to have seen the last of this cruel policy. And like so many others, we are beyond disappointed to learn that we were wrong. On this day in which MPP is being restarted, we join so many others both within and outside of government in demanding better.
We urge the Biden Administration to end its unwarranted expansion of MPP; to instead do everything in its power to permanently end the program; and to insure that in the interim, any court-ordered restart of MPP first accord with our international treaty obligations towards refugees, and with the requirements of due process and fairness on which our legal system is premised.
Contact Jeffrey S. Chase, jeffchase99@gmail.com
3 See the compilation of of publicly reported cases of violent attacks on those returned to Mexico under MPP by Human Rights First, available at https://www.humanrightsfirst.org/sites/default/files/ PubliclyReportedMPPAttacks2.19.2021.pdf.
4 American Federation of Government Employees, National Citizenship and Immigration Services Council 119, “Union Representing USCIS Asylum Officers Condemns Re-Implementation of the Migrant Protection Protocols” (Dec. 2, 2021).
5 Syracuse University, TRAC Immigration, “Contrasting Experiences: MPP vs. Non-MPP Immigration Court Cases,” available at https://trac.syr.edu/immigration/reports/587/.
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Thanks to “Sir Jeffrey” Chase for leading this effort. It’s an honor and a privilege to serve with you and our other colleagues on the Round Table!
The emphasis on “border security” would make more sense if the Administration had restored the legal process for applying for asylum at ports of entry. Without such a process, how are individuals’ supposed to exercise their legal rights under domestic and international law to seek protection in the U.S.?
Expect these guidelines to be quickly challenged in Federal Courts by nativist GOP AGs. We’ll see how they fare!
“[W]ithout having knowledge, we’ll go directly to the slaughterhouse!” Creative Commons License“Do you still want to talk to a lawyer, or are you ready to take a final order?” “Justice” Star Chamber StyleEmma Winger Staff Attorney American Immigration Council PHOTO: Immigration Impact
“Ben G.” is a 35-year-old veterinarian from Nicaragua who fled to the United States after he was beaten and tortured by police. When he crossed the border into the United States, he requested asylum. U.S. Immigration and Customs Enforcement (ICE) eventually transferred Ben to the Winn County Correctional Center, an ICE detention facility in rural Louisiana located four hours away from the nearest metropolitan area. It is also the facility with the fewest immigration attorneys available in the entire country.
Despite passing the government’s initial screening and having a credible fear of persecution, Ben was still unable to find a lawyer. As a fellow detained person noted, “without having knowledge, we’ll go directly to the slaughterhouse.”
Ben’s story illustrates the monumental barriers that detained immigrants face in finding lawyers to represent them. As described in a letter sent October 29 by the American Immigration Council, the ACLU, and 88 legal service provider organizations to Department of Homeland Security Secretary Alejandro Mayorkas, ICE detention facilities have systematically restricted the most basic modes of communication that detained people need to connect with their lawyers and the rest of the outside world, including phones, mail, and email access.
This must change. The immigration detention system is inherently flawed, unjust, and unnecessary. The best way to eliminate these barriers to justice is to release people from detention.
Although immigrants have the right to be represented by lawyers in immigration proceedings, they must pay for their own lawyers or find free counsel, unlike people in criminal custody who have the right to government-appointed counsel. In many cases, detained immigrants cannot find lawyers because ICE facilities make it so difficult to even get in touch and communicate with attorneys in the first place.
The importance of legal representation for people in immigration proceedings cannot be overstated. Detained people with counsel are 10 times more likely to win their immigration cases than those without representation. Yet the vast majority of detained people — over 70% — faced immigration courts without a lawyer this year.
ICE has set the stage for this problem by locating most immigration detention facilities far from cities where lawyers are accessible. Each year, ICE locks up hundreds of thousands of people in a network of over 200 county jails, private prisons, and other carceral facilities, most often in geographically isolated locations, far from immigration attorneys.
Even when attorneys are available and willing to represent detained people, ICE detention facilities make it prohibitively difficult for lawyers to communicate with their detained clients, refusing to make even the most basic of accommodations. For example, many ICE facilities routinely refuse to allow attorneys to schedule calls with their clients.
As described in the letter, the El Paso Immigration Collaborative reported that staff at the Torrance County Detention Facility in New Mexico have told their lawyers that they simply don’t have the capacity to schedule calls in a timely manner, delaying requests for more than one week or more.
The University of Texas Law School’s Immigration Law Clinic attempted to schedule a video teleconferencing call with a client at the South Texas ICE Processing Center. An employee of the GEO Group, Inc., which runs the facility, told them that no calls were available for two weeks.
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A “Jim Crow Mentality” of never being held accountable for abuses of law or human morality permeates the politicos, legislators, and Federal Judges of both parties responsible for enabling and upholding this toxic system.
Nowhere is this more obvious than at the DOJ Civil Rights Division. While pontificating on racially abusive local police policies and actions, these folks go to great lengths to overlook the DOJ-run “Star Chamber Courts” embedded in DHS’s “New American Gulag” that disproportionally harm persons of color and deny them basic legal, civil, and human rights every day.
This system is thoroughly rotten! Yet, Garland’s DOJ “defends the indefensible” in Federal Court almost every day.
They raped women, burned homes and killed dozens of people, including children, chopping up their bodies with machetes and throwing their remains to pigs.The gruesome massacre three years ago, considered the worst in Haiti in decades, was more than the work of rival gangs fighting over territory. It was organized by senior Haitian officials, who provided weapons and vehicles to gang members to punish people in a poor area protesting government corruption, the U.S. Treasury Department announced last year.
Since then, Haiti’s gang members have grown so strong that they rule swaths of the country. The most notorious of them, a former police officer named Jimmy Cherizier, known as Barbecue, fashions himself as a political leader, holding news conferences, leading marches and, this week, even parading around as a replacement for the prime minister in the violent capital.
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Read the rest of this gruesome, yet telling, report at the link.
Over 21 years on the Immigration Bench as both a trial and appellate judge, I adjudicated thousands of asylum claims. The circumstances described on this article undoubtedly would give rise to many potentially valid asylum and withholding claims, based on actual or implied political opinion and/or family or gender-based “particular social groups” and Convention Against Torture (“CAT”) grants based on torture with government acquiescence or actual connivance!
So, how do Biden, Harris, Mayorkas, and Garland, who to my knowledge have never represented an asylum applicant or adjudicated an individual asylum case among them, “get away” with simply suspending the rule of law, under false pretenses, for those entitled to seek asylum?
Stephen Miller must be on “Cloud Nine” as Biden & Co. carry out his White Nationalist plans to eradicate asylum, particularly when it protects women and people of color! This is even as Miller and his neo-Nazi cohorts (a/k/a “America First Legal”) are gearing up to sue the Biden Administration to block every measure that might aid immigrants, particularly those of color.
He’s delighted with Biden’s abuse of asylum seekers of color! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
NGOs don’t share the Biden Administration’s vision of what a “safe” Haiti looks like. Neither do kidnapped American missionaries! PHOTO: Marcelo Casal, Jr., Creative Commons License
Angering and alienating your potential allies and supporters to aid the far-right program of your enemies who are determined to do whatever it takes to undermine, discredit, and destroy your Presidency! Obviously, I’m no political expert. But, sure sounds like an incredibly stupid, “designed to fail” strategy to me!
Number of New Deportation Cases Far Outpaces Completed Cases in FY 2021
(14 Oct 2021) According to TRAC’s updated Quick Facts tools, the number of new deportation cases filed with the Courts in FY 2021–over 315,000–is more than double the number of completed cases over the same period which, according to Immigration Court records, currently sits at less that 145,000. When incoming cases exceed the capacity of the Courts to adjudicate those cases, the Immigration Court backlog continues to grow. At the end of September 2021, the end of FY 2021, the total number of pending cases reached nearly 1.5 million total cases, larger than the population of San Diego, the eighth largest city in the United States.
The Transactional Research Access Clearinghouse (TRAC) a research organization at Syracuse University created ‘Quick Facts’ tools to provide a user-friendly way to see the most updated data available on immigrant detention and the Immigration Courts. The tools include easy-to-understand data in context and provide quotable descriptions.
Highlights from data updated today on immigrants facing deportation in court include the following:
Immigration Courts recorded receiving 315,491 new cases so far in FY 2021 as of September 2021. This compares with 144,654 cases that the court completed during this period.
According to court records, only 2.0% of FY 2021 new cases sought deportation orders based on any alleged criminal activity of the immigrant, apart from possible illegal entry.
At the end of September 2021, 1,457,615 active cases were pending before the Immigration Court.
Los Angeles County, CA, has the most residents with pending Immigration Court deportation cases (as of the end of September 2021).
So far this fiscal year (through September 2021), immigration judges have issued removal and voluntary departure orders in 29.7% of completed cases, totaling 43,031 deportation orders.
So far in FY 2021 (through September 2021), immigrants from Mexico top list of nationalities with largest number ordered deported.
Only 20.6% of immigrants, including unaccompanied children, had an attorney to assist them in Immigration Court cases when a removal order was issued.
Immigration judges have held 22,712 bond hearings so far in FY 2021 (through September 2021). Of these 6,997 were granted bond.
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:
Being able to say “toldya so” to the crowd in the Biden Administration is of little consolation to those of us in the Round Table of Former Immigraton Judges ⚔️🛡and the NDPA who have had to witness the unfolding (yet preventable) human disasters caused by the Biden Administration’s inept, tone-deaf, frankly spineless approach to EOIR and the rest of the dysfunctional USG immigration bureaucracy!
An operationally independent EOIR under dynamic progressive leadership and a BIA of judges who are practical experts in asylum and immigration could have cut the backlog by eliminating non- priority cases (most of what is in the EOIR backlog) and showing that fair, legal, timely, and generous administration of asylum laws can work and produce efficient, yet humane, correct, and consistent results!
Instead, the disgraceful mess at EOIR promotes human suffering and dysfunction, waste, and abuse in government. Backlog building “Aimless Docket Reshuffling,” (“ADR”), continuing to move cases around to meet administrative objectives unrelated to the needs of the parties and the input of the sitting Immigration Judges, continues to plague Garland’s failed courts.
Indeed, if Garland’s EOIR were a country, it would be considered a “failed state!”
A reformed EOIR also could have exposed and perhaps corrected some of the continuing systemic abuses at DHS (see, e.g., “Baby Jails,” “Family Gulags,” and absurdly inconsistent and irrational bond procedures)!
