"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Would you want this guy as your Immigration Judge or BIA “panel?” If not, tell Garland to “pull the plug” on his deadly and incompetent BIA! Public Domain
Sorto-Guzmán v. Garland, 4th Cir., 08-93-22, published
PANEL:KING and WYNN, Circuit Judges, and FLOYD, Senior Circuit Judge.
OPINION: Judge FLOYD
KEY QUOTE:
In sum, we hold that the IJ’s decision, which the BIA adopted, blatantly ignored our long line of cases establishing that the threat of death alone establishes past persecution. This was legal error, and therefore, an abuse of discretion. See Cordova v. Holder, 759 F.3d 332, 337 (4th Cir. 2014). We hold that Sorto-Guzman has established she was subjected to past persecution in El Salvador.2 She is thereby entitled to the presumption of a well-founded fear of future persecution. Li, 405 F.3d at 176; 8 C.F.R. § 208.13(b)(1). The IJ and the BIA erred in not affording Sorto-Guzman this presumption, which would
2 Sorto-Guzman argues, in the alternative, that the IJ and the BIA erred in finding that she failed to establish a well-founded fear of future persecution. We will not answer that question today. Because we hold that she properly established past persecution, the proper remedy is to remand the case to the BIA to consider the question of whether DHS can rebut the presumption that Sorto-Guzman has a well-founded fear of future persecution.
11
have then shifted the burden to DHS to rebut the presumption. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir. 2004); 8 C.F.R. § 1208.13(b)(1)(i).
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Sorto-Guzman is a life-long Catholic who regularly attended Catholic services in El Salvador. In December 2015, about five members of the Mara 18 gang accosted Sorto- Guzman in the street as she was leaving church. At the time, she was wearing a crucifix medallion around her neck. The gang members tore the chain from her neck, hit and kicked her, and threatened to kill her if she ever wore it or attended church again. Sorto-Guzman stopped attending church after the attack, fearing the gang and their threats.
A few weeks later in January 2016, a group of Mara 18 gang members—including some of the gang members from the December 2015 assault—stopped Sorto-Guzman, along with her sister and Rivas-Sorto, as she was coming home from a shopping trip. One of the men attempted to sexually assault Sorto-Guzman and had started to forcefully kiss her. He only stopped when her screams caught the attention of a neighbor. The gang members threatened to kill Sorto-Guzman and Rivas-Sorto if Sorto-Guzman did not join the gang and start living with them.
3
On February 13, 2016, some of the gang members from the prior incidents tracked where Sorto-Guzman lived and broke into her house carrying guns. The gang members viciously beat Sorto-Guzman, threatened her life, and robbed her. Sorto-Guzman’s neighbors called the police, but they did not come until several hours after the assault. Sorto-Guzman reported the assault and robbery to the officers who arrived at the scene. She also went to the local police station the next day to report the attack. The police made one attempt to investigate, but Petitioners were not home when the police arrived, and the officers never followed up. The day after, a gang member called Sorto-Guzman, warning her she would regret making the report to the police and that they would soon kill her, her son, and her sister.
Absurdly, an Immigration Judge found that this gross abuse and death threats by a gang with the ability and willingness to carry them out did not amount to “persecution.” Worse yet, on appeal, rather than reversing and directing the judge below to follow the law, the BIA agreed — invoking the outlandish “theory” that the death threats, on top of the savage beating, weren’t so bad because they had never come to “fruition.” In other words, the applicant hadn’t hung around to be killed. Then, to top it off, attorneys from the DOJ’s Office of Immigration Litigation (“OIL”) unethically defended this deadly nonsense before the Fourth Circuit! This is “justice” in Garland’s disgraceful, deadly, and dysfunctional “court” system!
Garland’s BIA Judges applying the “fruition” test. If she lives, it’s not persecution! Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
NOT, a “mere mistake.”
EOIR’s performance is this case, particularly the BIA’s absurdist conclusion that, essentially, death threats must result in death to constitute past persecution, is a contemptuous disregard for binding circuit precedent, a demonstration of gross anti-asylum bias, misogyny, and a clear example of judicial incompetence.
Would a heart transplant surgeon who “forgot” to install a new heart or neglected to sew up the patient’s chest be allowed to continue operating? Of course not! So, why is the BIA still allowed to botch life or death cases — the equivalent of open heart surgery?
If Garland allows his “delegees” to perform in this dangerous and unprofessional manner, in his name, what is he doing as Attorney General? This is a farce, not a “court system?” Those responsible need to be held accountable! And, OIL’s unethical defense of this deadly nonsense is indefensible!
“What are legal ethics? Not my friends or relatives whose lives as being destroyed by these ‘Kangaroo Courts.’ Just ‘the others’ and their dirty immigration lawyers! So, who cares? Why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
We’ve heard lots lately from Garland about “accountability.” Why doesn’t it apply to his own, wholly owned, totally dysfunctional, legally deficient, contemptuous, unprofessional “court system” that builds astounding, self-created backlogs while causing pain, suffering, and sometimes sending innocents to death?☠️
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Additionally, in Kansas this week, women have shown the power of their just demand to be treated as humans, with rights, rather than dehumanized pawns just there to re-populate the world for the men in charge. So, why not unleash the same passion and rightful fury on Garland and his ongoing, illegal, misogynistic treatment of women (primarily women of color) at EOIR!
“She struggled madly in the torturing Ray” — AG Garland has failed miserably to engage with the plight of women, mostly those of color, being denied fundamental rights and abused daily by his lawless, anti-immigrant, anti-asylum, misogynistic “holdover” EOIR! Why are women putting up with his bad attitude and dilatory approach to justice? What happened to Lisa Monaco, Vanita Gupta, and Kristen Clarke? Are they “locked in a dark closet” somewhere in Garland’s DOJ? Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
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.
USCIS: This extends certain COVID-19-related flexibilities through Oct. 23, 2022, to assist applicants, petitioners, and requestors. The reproduced signature flexibility announced in March, 2020, will become permanent policy on July 25, 2022. But DHS To End COVID-19 Temporary Policy for Expired List B Identity Documents.
TRAC: One out of every six new cases DHS initiates in Immigration Court are now being dismissed because CBP officials are not filing the actual “Notice to Appear” (NTA) with the Court. The latest case-by-case Court records obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University through a series of Freedom of Information (FOIA) requests show a dramatic increase in these cases.
Buzzfeed: The US reached a settlement Thursday that establishes fingerprinting deadlines for parents and sponsors trying to get unaccompanied immigrant children out of government custody. Under the settlement, which expires in two years, the government has seven days to schedule fingerprinting appointments and 10 days to finish processing them.
CNN: The Biden administration is developing a new identification card for migrants to serve as a one-stop shop to access immigration files and, eventually, be accepted by the Transportation Security Administration for travel, according to two Homeland Security officials.
CBS: Officials in Arizona, Missouri, Texas and other GOP-controlled states have convinced federal judges, all but one of whom was appointed by former President Donald Trump, to block or set aside seven major immigration policies enacted or supported by Mr. Biden over the past year.
AP: Over the next 30 years, 143 million people are likely to be uprooted by rising seas, drought, searing temperatures and other climate catastrophes, according to the U.N.’s Intergovernmental Panel on Climate Change report published this year.
Reuters: Washington Mayor Muriel Bowser has requested the deployment of military troops to assist with migrants arriving on buses sent by the Texas and Arizona state governments, according to letters sent by her office to U.S. military and White House officials. See also Migrants Being Sent to NYC From Texas — to the Wrong Places, With No Help, Sources Say.
Documented: Advocates estimate that ICE moved dozens of individuals at the Orange County Jail in New York on Monday, and sent them to detention centers in Mississippi and elsewhere in New York, without prior notification to families or attorneys about the transfers.
Reuters: An estimated 6 million Venezuelans have fled economic collapse and insecurity in their home country in recent years, according to United Nations figures. Many have settled in other South American countries but some have traveled north.
BIA: The respondent’s conviction for unlawfully selling or otherwise disposing of a firearm or ammunition in violation of 18 U.S.C. § 922(d) (2018) does not render him removable as charged under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2018), because § 922(d) is categorically overbroad and indivisible relative to the definition of a firearms offense.
Law360: The Second Circuit ordered the Board of Immigration Appeals to revisit an indigenous Guatemalan mother and son’s bids for asylum and deportation relief, saying the agency failed to provide a sufficient premise for affirming an immigration judge’s denial of relief.
LexisNexis: An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the non-recused active judges in favor of en banc consideration.
Law360: Not knowing the law isn’t enough to excuse a Guatemalan union worker from missing the deadline to apply for asylum by three years, the Ninth Circuit said when it refused to overturn an immigration panel’s decision that the man’s circumstances weren’t “extraordinary.”
Law360: A panel of Ninth Circuit judges granted a petition to review an order rejecting a Mexican woman’s asylum bid Wednesday, saying in an unpublished opinion that the agency was wrong to determine that inconsistencies or omissions in her testimony undercut her credibility as a witness.
Law360: The D.C. Circuit has rejected requests from Afghan and Iraqi translators to alter a lower court’s order that granted the federal government an indefinite deadline extension to draft a plan for faster green card processing, ruling that reversing the order wasn’t necessary.
AILA: Advance Copy: DHS notice extending the designation of Syria for TPS for 18 months, from 10/1/22 through 3/31/24, and redesignating Syria for TPS for 18 months, effective 10/1/22 through 3/31/24. The notice will be published in the Federal Register on 8/1/22.
AILA: USCIS is experiencing delays in issuing receipts for Form I-589. For purposes of the asylum one-year filing deadline, affirmative asylum interview scheduling priorities, and EAD eligibility, the filing date will still be the date USCIS received the I-589 and not the date it was processed.
USCIS: USCIS is currently experiencing delays in issuing receipts for Form I-589, Application for Asylum and for Withholding of Removal. Due to these delays, you may not receive a receipt notice in a timely manner after you properly file your Form I-589.
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.
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
The foregoing sources also clearly illustrate that, with or without past persecution, such indigenous women would have a “reasonable fear” of persecution on account of their status under the generous standards for asylum adjudication articulated by the Supremes more than three decades ago in Cardoza-Fonseca and, shortly thereafter, reaffirmed and supposedly implementedby the BIA in Matter of Mogharrabi (a fear can be “objectively reasonable” even if persecution is significant unlikely to occur). Problem is: Both of these binding precedents favoring many, many more asylum grants are widely ignored by policy makers, USCIS, EOIR, and some Article III Courts — with no meaningful consequences!
Additionally, the respondents appear to have had grantable “racial persecution” claims based on indigenous ethnicity. The son, in addition to being a “derivative” on his mother’s application, also had an apparently grantable case based on disability.
In a functioning system, this case would have been quickly granted, the respondents would be integrating into and contributing to our nation with green cards, and they would be well on their way to U.S. citizenship. Indeed, there would be instructive BIA precedents that would prevent DHS from re-litigating what are essentially frivolous oppositions!
But, instead, after more than five years and proceedings at three levels of our justice system, the case remains unresolved. Because of egregious, unforced EOIR errors it is still “bouncing around” the 1.8+ millionEOIR backlog, following this remand from the Second Circuit.
Exceptionally poor BIA legal performance, enabling and supporting a debilitating “anti-immigrant/anti-asylum/racially derogatory culture of denial” at EOIR, has led to far, far too many improper asylum denials at the Immigration Judge level and to a dysfunctional system that just keeps on building backlog and producing grotesquely inconsistent, “Refugee Roulette” results! Go to TRAC Immigration and check out the shocking number of sitting IJs with absurd 90% or more “asylum denial rates.”
It also fuels the continuing GOP nativist blather that denies the truth about what is happening at our Southern Border. We are wrongfully denying legal protection and status to many, many qualified refugees — often without any process at all (let alone due process) and with a deeply flawed, biased, and fatally defective process for those who are able to “get into the system.” (Itself, an arbitrary and capricious decision made by lower level enforcement agents rather than experts in asylum adjudication).
The “unpublished” nature of this particular Second Circuit decision might lead one to conclude that the Article IIIs have lost interest in solving the problem, preferring to sweep it under the carpet as this pathetic attempt at a “below the radar screen” unpublished remand does. But, such timid “head in the sand” actions will not restore fairness and order to a system that now conspicuously lacks both! This dangerous, defective, unfair, and unprofessional abuse of our justice system needs to be “publicly called out!”
“The agency failed to evaluate any of the country conditions evidence relevant to Oliva-Oliva’s CAT claim.” So how is this acceptable professional performance by the BIA? And why is it being “swept under the carpet” by the Second Circuit rather than “trumpeted” as part of a demand that Garland fix his dysfunctional due-process-denying system, NOW?
Contrary to all the fictional “open borders nonsense” being pushed by the nativist right, the key to restoring order at the borders is generous, timely, efficient, professional granting of refuge to those who qualify, either by the Asylum Office or the Refugee Program. This, in turn, absolutely requires supervision, guidance, and review where necessary by an “different” EOIR functioning as a true “expert tribunal.”
That would finally tell us who belongs in the legal protection system and who doesn’t while screening and providing accurate profiles of both groups. The latter essential data is totally lacking under the absurdist, racially motivated, “rejection not protection” program of Trump, much of which has been retained by Biden or forced upon him by unqualified righty Federal Judges. But, we’ll never get there without meaningful, progressive, due-process focused EOIR reform!
There will be no justice at the Southern Border or in America as a whole without radical, long overdue, due process reforms at EOIR!
Last week, Mayor Bowser made a request for National Guard troops to be deployed to DC to help with the thousands of migrants arriving on charter buses from Texas and Arizona.
CAIR Coalition condemns this militarized response and calls for our government leaders to support and listen to the local groups that have consistently done the work on the ground to support the immigrant community in DC. There are other alternatives like providing additional funding to community groups to help with temporary lodging and other basic needs.
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Bowser’s semi-nonsensical “emergency request” seems to be nothing more than a “cheap publicity stunt” at the expense of vulnerable asylum applicants and those in the community who are assisting them! And, it worked! She got lots of “play” in the news media.
But, just how would the National Guard actually assist in this largely “manufactured” and unnecessary humanitarian “crisis?”
Will they be transporting migrants from DC to their final destinations? Helping them find lawyers? Explaining their reporting obligations to DHS and EOIR? Finding them shelter in the area? Providing meals and caring for children?
Gimmie a break! Misusing the National Guard like this would also make them less available for real crises where they could help — like the flooding disaster in Kentucky!
What’s needed, as pointed out by CAIR, is sensible supplemental funding for community organizations and others who have been helping migrants resettle and process their cases. Also, shame on the Biden Administration for not getting “ahead of the curve” to provide Federal Government support to counter this entirely predictable and wholly avoidable publicity stunt created by Texas’s White Nationalist, scofflaw Governor Greg Abbott and mindlessly advanced by Mayor Browser’s misguided request!
Rev. Craig Mousin Ombudsperson Refugee and Forced Migration Studies, Grace School of Applied Diplomacy DePaul University PHOTO: DePaul Website
Craig writes:
We just posted our latest podcast urging folks to email or call Congress to stop Title 42, “Do Not Let Summer Daze Turn Pretense Into Law: End Title 42.”
Title 42 is a total, disgraceful fraud that violates U.S. and international law, abuses (and sometimes kills) vulnerable refugees seeking to exercise legal rights, and turns immigration policy over to cartels and human smugglers
Shockingly, instead of standing up for due process, human rights, and the rule of law, horrible right-wing Federal Judges have gone along with this farce at the urging of GOP White Nationalist state AGs.
Julia Toepfer National Immigrant Justice Center (“NIJC”)
Since the 1990s, U.S. immigration policy has centered the goal of decreasing or “deterring” migration. These policies are designed with one goal in mind – punishing people for the act of migration with such cruelty that the harsh measures themselves will deter future migration.
Not only does this strategy not work, but it has deadly human consequences.
The devastating toll of deterrence programs came into full view with the recent tragedy in San Antonio, Texas, where 53 migrants died in the back of a tractor-trailer after attempting to enter the United States. Human rights experts, including NIJC, responded by emphasizing the urgent need to shift away from programs that block lawful pathways to entry or push people toward dangerous terrain.
Nonetheless, the U.S. government continues to double-down on policies and programs aimed at deterring migration. Some recent examples include continuing the Trump-era Remain in Mexico and Title 42 programs, and increasing the use of criminal prosecutions to punish migrants alleged to enter the country without authorization. Here are updates on each of these programs since we last reached out to you about them, along with ways you can demand that the U.S. government restores access to asylum and stops punishing people for migrating:
➡️ Recently, the Supreme Court ruled that the Biden administration could end the Remain in Mexico program, and it’s now time for the administration to follow through. Also known as the Migrant Protection Protocols (MPP), this program has forced more than 75,000 people to wait in dangerous conditions in Mexico while their claims are pending in U.S. immigration courts. This program defaced basic principles of due process and decades of U.S. commitment to protect people from harm and persecution. NIJC continues to represent dozens of asylum seekers who were subject to the program, including some who are still waiting in Mexico. Sign the petition calling on President Biden to end Remain in Mexico.
➡️ Border Patrol just released new data showing there have been 2,132,711 expulsions of people seeking safety at the U.S. border under Title 42, the vast majority of which happened under the Biden administration. The Trump administration implemented Title 42 under the guise of protecting public health during COVID-19, but the real goal was always to block Black, Brown, and Indigenous people from migrating to the United States. There have been nearly 10,000 documented cases of kidnappings, rape, torture, or other acts of violence against people who were expelled under Title 42. Yet, right now, some members of Congress are trying to pass legislation that continues this policy indefinitely. Tell your members of Congress to end Title 42 and oppose all efforts to continue it indefinitely.
➡️ The Biden administration is ramping up the use of criminal prosecutions to punish migrants arriving at the U.S. border, despite decades of evidence showing these prosecutions don’t work to deter migration and cause widespread harm. The increased use of such prosecutions flies in the face of the administration’s commitments to racial equity and to a more humane approach to migration policy. Criminal prosecutions do not stop people from crossing the border, but instead have caused widespread harm, separated countless families, and undermined asylum rights. Check out NIJC’s latest blog post explaining five ways that immigration prosecutions are deadly and ineffective.
NIJC knows, from years of representing immigrants and asylum seekers, that punitive border policies do not deter people from fleeing violence or seeking to reunite with their families.
Above all, immigration policies focused on deterrence inevitably and tragically cause countless deaths and untold human suffering. The U.S. must abandon a deterrence strategy, reopen ports of entry for asylum screenings, and embrace a humanitarian approach to immigration – it’s the only way to end systemic injustices, reduce mass incarceration, and protect fundamental human rights.
Thanks for joining us to get there.
-Julia Toepfer
National Immigrant Justice Center
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“Maximum deterrence programs” have little empirical support. Human migration, a phenomenon as old as humanity, is largely driven by powerful forces beyond whether a rich country has built walls, prisons, unfair legal systems, and other artificial barriers to “deter” migration. At best (or worst, depending on how one looks at it) these “gimmicks” and the predictable accompanying “rhetoric of hate, dehumanization, and rejection” nibble around the edges of migration patterns.
But, they are deeply rooted in the racial history of the U.S., and play a major role in the White Nationalist mythology that surrounds deterrence.
A smart nation might harness, take advantage of, and direct the flow of human migration. Ultimately, failed deterrence gimmicks will inflict cruelty and cause the death of some migrants. They also diminish the reputation and diminish the humanity of the “destination nation.”
But, they won’t stop folks from leaving intolerable situations to seek a better life elsewhere — no matter what the odds, risks, or hardships. And, they eat up money and resources that could actually be directed into building more realistic legal migration systems that would benefit both the migrants and the receiving countries.
GOP political hacks and their enabling bad righty Federal Judges have combined to wreak havoc on humanity and trample the Constitution, rule of law, common sense, and simple human decency at our Southern border! Albrecht Dürer, Public domain, via Wikimedia CommonsProfessor Stephen Yale-Loehr Cornell Law
In 2015, a Ghanaian man who goes by the initials M.A. and his gay friend were brutally assaulted by a vigilante group in Accra, Ghana. In Ghana, homosexuality is illegal and carries a prison sentence of up to three years. M.A. was beaten with sticks before escaping through a window. His friend was killed. Fearing the group would find and kill him, he fled to Ecuador and made his way to the U.S. border, where he requested asylum. After being detained for nine months, he was released on bond and lived with a childhood friend in New York while he waited for his case to make it through the legal system.
M.A. clearly faced persecution, but an immigration judge denied his claim. I took M.A.’s appeal to the Board of Immigration Appeals in 2016 as part of the Cornell Law School’s asylum appeals clinic. It took M.A. four years to win asylum in America, but at least he was given the chance to apply in the first place.
Since March 2020, approximately 900,000 people — including over 215,000 parents and children — have been denied the ability to request asylum at all. They’re casualties of Title 42, a pandemic-related policy that paused nearly all asylum proceedings at the border. Some people argue the policy is preventing an influx of migrants. In fact, numbers are up despite the policy, and our refusal to process most of them has led to chaotic and dangerous conditions.
The United States has successfully managed ebbs and flows of asylum seekers for decades. There’s a system in place to manage an influx — and regardless of how hard immigration lawyers like me fight for them to stay, many will lose their case and be deported. Even so, we must let people try. It’s not only the right thing to do, it’s also guaranteed under international and domestic law. We signed a 1967 protocol to the U.N. Refugee Convention to protect the rights of refugees, and we have adopted it and codified it into U.S. asylum law. Right now, we’re violating those obligations. The longer we do, the weaker American rule of law looks to our global partners.
We must immediately reinstate due process for asylum seekers. And once this happens, we must work to make the system more equitable and faster.
. . . .
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Read Steve’s complete op-ed in The Hill at the link.
I agree that “we must work to make the system more equitable and faster.” But, the answer can’t be just to hire more Immigration Judges in Garland’s dysfunctional, broken, and anti-asylum-biased “court” system. That would just speed the “deportation assembly line” and lead to even more injustice and grotesque inconsistencies.
According to TRAC, Immigration Judge “asylum denial rates” currently “range” from 5% to 100%. That’s a ridiculous, indefensible variation and a total perversion of the generous standard for granting asylum set forth by the Supremes in Cardoza-Fonseca and adopted by the BIA in Matter of Mogharrabi, but seldom enforced or followed, particularly these days.Why this very obvious, totally solvable problem is still festering going on two years into a Democratic Administration that pledged to solve it is beyond me!
Enough of this nonsense, biased, “amateur night at the Bijou” mal-administration of the Immigration Courts at EOIR by Garland’s DOJ! No wonder folks are still complaining about “Refugee Roulette” more than a decade after it was written by my Georgetown Law colleagues Professors Phil Schrag, Andy Schoenholtz, and Jaya Ramji-Nogales (now an Associate Dean at Temple Law). Why not put one of THEM, or for that matter, Professor Yale-Loehr, in charge of kicking tail and cleaning out the deadwood at EOIR?
This approach to life or death asylum adjudication at EOIR, particularly the BIA, is a killer! PHOTO: Thomas Hawk Creative Commons Amateur Night
At a minimum Garland must:
Remove the holdover “Asylum Deniers Club” from the BIA and replace them with a real judge as Chair and new Appellate Immigration Judges who are widely recognized as “practical experts” with careers that have demonstrated superior scholarship in immigraton and human rights, an unswerving commitment to due process for individuals, and a passion for racial justice in our legal system;
Have the “New BIA” issue useful precedential guidance on how to document and grant valid asylum cases at both the Asylum Office and the Immigration Court, implement best practices, and identify and remove from future asylum adjudication those unqualified Immigration Judges who basically “make up” reasons to deny and can’t or won’t treat applicants fairly; and
Immediately replace with qualified expert judges those Immigration Judges on the “Southern Border docket” who can’t fairly adjudicate asylum cases.
Steve is totally correct about the need for Title 42 to go! But, Garland’s EOIR, particularly the BIA, is just as broken, counterproductive, and out of control as Title 42! In many ways, the illegal abrogation of the rule of law at the Southern Border has somewhat ”hidden” the larger problem that a dysfunctional and incapable EOIR poses for those who do manage to get a hearing!
Without a legitimate, totally reformed and significantly “re-populated” EOIR operating at the “retail level” of our justice system, there will be no rule of law and equal justice under law in America — for anyone!
Tell Garland you have had enough! The deadly and disorderly “EOIR Clown Show” has got to go! Now!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Through our reporting, we exclusively learned that U.S. Customs and Border Protection quietly changed last year how they count deaths on the border to only include deaths in custody, during arrests or when agents were nearby and there were 151 such “CBP-related” deaths in the 2021 fiscal year.
We are still reporting on this and other issues of course, so please keep in touch with tips and story ideas!
Thanks, Mica. “Tune in” to the full “multimedia report” referenced by Mica at the above link to Reuters.
No amount of statistical hocus-pocus or nativist BS can hide the stain of these deadly, yet ultimately ineffective, border enforcement policies. It’s important that the names and actions of the politicos, bureaucrats, and bad judges who promote and encourage deadly violations of human rights, and their media apologists, be preserved and documented for history!
As we can see, there are, and will continue to be, concerted efforts to “cover up,” deny, and misrepresent the deadly effects of bad border policies! “Dehumanization of the other,” actively promoted by Trumpists and other White Nationalist GOP pols and their hand picked Federal Judges is a crucial first step!
Americans should be able to sponsor refugees who can stay permanently
The U.S. does too little for too few, but Canada has a program worth adopting and improving
Perspective by l
July 18, 2022 at 5:00 a.m. EDT
The war in Ukraine has created one of the biggest refugee crises since World War II, with about 7 million people fleeing the country. While some have since returned, and some have settled elsewhere in Europe, there are still many in need of a permanent haven. Unfortunately, the American refugee system is proving to be of comparatively little help.
Even before President Donald Trump, the refugee resettlement process was slow and cumbersome, but Trump made things much worse by slashing the annual refugee quotas to a low of 18,000 for fiscal 2020 and 15,000 for fiscal 2021, before Biden increased it, which in turn led many resettlement organizations to shut down or scale back. President Biden raised the 2021 cap to 62,500 in May of that year — and set a cap of 125,000 for 2022 — but has not been able to restore the resettlement infrastructure that Trump undercut. As a result, the higher quotas remain largely unfilled, with a record-low 11,411 refugees admitted in 2021, even though many more would love to come. Even in the current fiscal year, the administration expects to fall far short of its target, Axios reports.
The Biden administration has tried to ease the logjam — at least for Ukrainian victims of Russian aggression — by creating the Uniting for Ukraine program, under which private citizens can sponsor Ukrainian refugees. Ukrainians wishing to enter must first get a U.S.-citizen sponsor, who has to prove that they can financially support the new arrival for two years; they must also pass certain health and security checks. The Ukrainians can seek permission to work but may stay for only two years. U.S. sponsors have filed applications on behalf of some 60,000 Ukrainians under this policy. The administration has pledged to help at least 100,000 Ukrainians relocate overall.
The program is a decent start, but it could be improved by adapting a similar, better-run Canadian program.
Since 1979 — inspired by the massive numbers of people displaced by the Vietnam War and its aftermath — Canada’s Private Sponsorship of Refugees program has allowed ordinary people and community groups to support refugees financially and otherwise for 12 months (or until the refugee is self-sufficient, whichever comes first). Sponsors can include private citizens working together (a “Group of Five”) or a group that holds a sponsorship agreement with the Canadian government, such as a religious institution or cultural organization. In an important contrast with the U.S. program, the refugees can stay permanently after the sponsorship period, and the program is not limited to people from specific nations. The combination of monetary assistance with more personal support, such as helping refugees find language classes or sign their children up for schools, gives the refugees a chance to hit the ground running. The recipients of private aid must be a refugee as defined by the United Nations (or according to a few other criteria). In 2022, Canada’s target number for privately sponsored refugees is 31,255, while the goal for government-sponsored refugees is 19,790. Relative to Canada’s population size — just over a tenth that of the United States — these figures are several times higher per capita than Biden’s unmet quota of 125,000.
. . . .
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Read the full article at the link.
Creative “out of the box” thinking, innovation, practical solutions, expertise, bold moves, and moral courage have been largely lacking in the Biden Administration’s approach to refugees and asylees.
While the authors seem largely focused on the plight of Ukrainian refugees, there is no reason why their proposal couldn’t be used for many refugees of color from Haiti, Latin America, and elsewhere at the Southern border.
Additionally, there are no known legal avenues for racist GOP AGs and GOP scofflaw Federal Judges to successfully challenge refugee admissions. Doesn’t mean they won’t try. But, the DOJ should be able to fend off the effort.
Undoubtedly, out of control righty judges have helped GOP states with ugly White Nationalist xenophobic agendas to improperly seize control of immigration policy from Congress and the Executive. https://www.cbsnews.com/news/immigration-biden-republican-states-lawsuits/. Their target — individuals of color and women — is clear.
The result — an ungodly mess that empowers cartels and smugglers while putting “life or death” decisions in the hands of lower level bureaucrats who can act arbitrarily and without effective guidance — is totally unacceptable and a mockery of the rule of law. The Administration must use every tool at its disposal to resist this dangerous right-wing judicial overreach that undermines democracy.
For some (not all) EOIR judges, ignoring the record and making up reasons to deny asylum has become “business as usual.” The BIA, dominated by notable asylum deniers, often ”papers over” or “doubles down” on mistaken denials. There are no consequences for wrongfully endangering the lives of vulnerable asylum seekers. How would YOU (or for that matter Judge Garland) like YOUR life and future to be in the hands of an organization that has lost sight of its due process and fundamental fairness mission? Why isn’t fixing this unfair national disgrace (which falls disproportionately on individuals of color and other minorities) “job one” at the Biden/Harris/Garland DOJ? https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
“Mariana Ndudzi, a native and citizen of Angola, petitions for review of a Board of Immigration Appeals (BIA) decision denying her appeal of an immigration judge’s (IJ) denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). She argues that the Agency erred in finding her not credible and failed to review her corroborating evidence. We vacate and remand. … The main issue in this appeal is whether the BIA erred in upholding the IJ’s adverse credibility finding. That decision is largely based on perceived contradictions between Ndudzi’s alleged statements in her CFI and her sworn testimony in her removal hearing. Ndudzi makes two arguments against the adverse credibility finding. … [N]one of the inconsistencies the Agency relied on are in fact inconsistent. … In sum, the BIA and IJ’s adverse credibility determination rests largely on “inconsistencies” in the record that are not actually inconsistent. … In summary, the BIA and IJ relied heavily on an unsupported conclusion that Ndudzi is not a credible witness. At the same time, there appears to be little dispute that, if Ndudzi’s claims are true, she would be entitled to asylum under 8 U.S.C. § 1158(b)(1)(A). Because the adverse credibility finding is not supported by specific and cogent reasons derived from the record, we GRANT the petition for review, VACATE the decisions of the BIA and IJ denying Ndudzi’s application for asylum and CAT relief, and REMAND for further proceedings consistent with this opinion.”
“Because the adverse credibility finding is not supported by specific and cogent reasons derived from the record:”The 5th Circuit states the correct standard for adverse credibility findings, derived from BIA precedents! But, neither the IJ nor the BIA applied it! How is this professionally acceptable “judging” from supposed (but not really) “experts? Why is it tolerated at Garland’s DOJ?
Folks, stripped of the legal niceties, the most conservative Article III court in America just spent 16 pages analyzing and finding that the IJ and the BIA invented bogus “inconsistencies” to deny an otherwise clearly “grantable” asylum application from a woman who fled Angola.
Why is this type of unprofessional judicial performance, at both the trial and appellate levels of EOIR, acceptable in “life or death” cases? Why is it “OK” to submit asylum seekers to a “crap shoot” for their lives rather than giving them fair hearings before expert judges committed to great scholarship, careful analysis, and, most important, “getting it right the first time around?” Both the IJ and the BIA actually “went to some lengths” to invent reasons to disbelieve credible testimony. Isn’t unwillingness to fairly and routinely grant asylum to qualified applicants a major contributing factor in EOIR’s uncontrolled backlog? Wouldn’t getting it right at the “first level” promote efficiency and reduce the need for appellate litigation?
Also worthy of note: The 5th Circuit’s “footnote 2” punches huge holes in the myth of demeanor as an indicator of credibility:
Such deference is perhaps unfounded, however, given the wealth of contemporary psychological research suggesting that subjective perception of a witness’ demeanor is an unreliable indicator of the witness’ veracity. E.g., Mark W. Bennett, Unspringing the Witness Memory and Demeanor Trap: What Every Judge and Juror Needs to Know about Cognitive Psychology and Witness Credibility, 64 AM. U. L. REV. 1331, 1332 (2015) (“[C]ognitive psychological studies have consistently established that the typical cultural cues jurors rely on, including averting eye contact, a furrowed brow, a trembling hand, and stammering speech, for example, have little or nothing to do with a witness’s truthfulness.”); Liz Bradley & Hillary Farber, Virtually Incredible: Rethinking Deference to Demeanor When Assessing Credibility in Asylum Cases Conducted by Video Teleconference, 36 GEO. IMMIGR. L.J. 515, 535 (2022) (“Decades of research by social scientists have shown that the nonverbal ‘cues’ commonly associated with deception are based on false assumptions,” and cultural differences between an asylee and an IJ can “lead to cross- cultural misunderstandings of nonverbal cues,” especially when testimony is mediated through an interpreter).
Conscientious judges and advocates take note! In plain terms, “demeanor” is a largely bogus device used by bad judges to deny potentially valid claims. Obviously, in a “deny and deport oriented culture” like today’s EOIR (the very antithesis of the generous approach the Supremes in Cardoza and an earlier BIA in Mogharrabi said should apply to asylum adjudication), “bogus demeanor findings” become just another “device to deny protection.”
🇺🇸Due Process Forever!
PWS
07-23-22
Revised on 07-23-22 to reflect the panel’s revised opinion.
Is she the “Debbie Anker of Entertainment?” PHOTO: Mason Poole, CC BY 4.0 <https://creativecommons.org/licenses/by/4.0>, via Wikimedia Commons
Hon. “Sir Jeffrey” S. Chase writes:
What a beautiful tribute to a true giant and hero. I can’t even begin to state the influence Debbie has had on me. But think of how many NDPA heroes out there are former students of hers, and how many immigration law clinics around the country relied on Debbie’s clinic at Harvard as its model. It’s impossible to overstate her impact.
Clinical Professor Deborah Anker LL.M. ’84, ‘one of the architects of modern refugee law’ and founder of the Harvard Immigration and Refugee Clinical Program, moves to emerita status
By Debbie/HLS Correspondent, July 20, 2022
Credit: Kathleen Dooher
As Harvard Law School Clinical Professor Deborah Anker LL.M. ’84 moves to emerita status, she and her many students and colleagues can reflect on her formidable record of achievement — as a pioneer in the study of refugee and asylum law, the author of the seminal text on the subject, and a tireless advocate for the rights of refugees, particularly women and children. As her former student Molly Linhorst ’16 puts it — quoting a sentiment voiced by many of Anker’s admirers — “She’s the Beyoncé of asylum law.”
“As founding director of the Harvard Immigration and Refugee Clinic, Deborah Anker has played a pivotal role at Harvard Law School, not only by founding our clinic but in helping build our clinical program,” Harvard Law School Dean John F. Manning ’85, the Morgan and Helen Chu Dean and Professor of Law at Harvard Law School. “Her work in the clinic enabled countless clients to enjoy freedom and escape persecution by remaining in the U.S., and she trained and inspired scores of other lawyers to work to those same ends.”
“Debbie wins the prize for tenacity in terms of standing up for refugee rights in America,” says James Hathaway, prominent international refugee law scholar and founding director of Michigan Law’s Program in Refugee and Asylum Law. “Literally nobody has fought the good fight as often as she has done. But she is also an intellectual trailblazer, having, in particular, developed a gender-inclusive understanding of refugee status, and having made the case for the alignment of American understandings of asylum with our international obligations. She truly is a hero.”
Groundbreaking scholarship and litigation
A pioneer in the development of clinical legal education in the immigration field, Anker joined the Harvard Law faculty in the early ’80s, as a lecturer on law and later clinical professor of law in 2008. Along with her colleagues Nancy Kelly and John Wilshire-Carrera, Anker founded the Harvard Immigration and Refugee Clinical Program, or HIRC, which has since become a model for similar clinics nationwide. Her book, “Law of Asylum in the United States,” first published in 1998 under the editorship of former student Paul Lufkin and now updated annually with a cadre of HLS student editors, remains the key authoritative text in the area. She also has authored numerous amicus curiae briefs in major refugee litigation, served as an expert witness before national and international fora, and helped draft national gender refugee guidelines.
Harvard Law Clinical Professor Sabrineh Ardalan ’02, Anker’s former student and the current faculty director of HIRC, credits its significant expansion over the decades to Anker’s “commitment to advocating for immigrants’ rights and dedication to responding to the evolving challenges facing immigrants and refugees in the U.S.”
In addition to the clinical work at Greater Boston Legal Services, overseen by Kelly and Willshire Carrera, “HIRC now includes two clinics, a student practice organization [SPO], and the Harvard Representation Initiative, which serves members of the Harvard community whose immigration status is at risk. In addition to the flagship Immigration and Refugee Advocacy Clinic, there is now a Crimmigration Clinic, led and directed by Phil Torrey, which focuses on cutting-edge appellate and district court advocacy at the intersection of immigration and criminal law. And through the HLS Immigration Project, the student-practice organization, students can hit the ground running with hands-on immigration and refugee advocacy their 1L year,” said Ardalan. “Debbie built a team at HIRC that now supervises over 140 HLS students each year through the two clinics and SPO and in so doing, centered immigration and refugee law as a core component of HLS’s clinical program.”
Credit: Tsar Fedorsky Anker (left) in 2011 with HIRC students Gianna Borotto ’11 and Defne Canset Ozgediz ’11, and Sabrineh Ardalan ’02. Ardalan is Anker’s former student and the current faculty director of HIRC.
Committed to justice from an early age
Raised in New York, Anker graduated magna cum laude from Brandeis University, and went on to earn her J.D. from Northeastern before continuing her legal studies at Harvard. Even before she began formal studies, Anker was invested in the study of and advocacy for human rights. She credits that in large part to her family history and values: Her Jewish grandparents crossed the Atlantic to escape the persecution leading to the Holocaust, and both of her parents were committed public school educators. Her father was a New York City Schools chancellor during desegregation. “The belief in the equality of all people was central to how I was raised,” she said.
“From my family I got deep beliefs and commitment to anti-racism. I have a strong memory of my father telling me about Ralph Bunche, a Nobel Peace Prize recipient, one of the founders of the United Nations, leading actor in the mid-20th-century decolonization process and U.S. civil rights movement, and recipient of the Presidential Medal of Freedom,” said Anker. According to her father, Anker reports, Bunche was discriminated in obtaining housing, and refused membership in a neighboring tennis club in the area of Queens where Anker’s family moved in her early teenage years. “That was something that stuck with me,” she said. Early in her legal career, Anker represented a Black family that had moved into Dorchester during desegregation and was subject to violent attacks; this was one of the cases covered in J. Anthony Lukas’ classic 1985 book, “Common Ground.” “For me personally, a commitment to racial justice was central to my identity,” she says.
Anker credits the late Harvard Law School public interest professor Gary Bellow ’60, founder and former faculty director of Harvard Law School’s clinical programs, with advising, advocating and paving the way for her engagement in clinical education at the law school.
She also credits the ‘extraordinary determination and integrity’ of Lisa Dealy, former assistant dean of clinical education, with whom Anker worked closely, in helping to expand the school’s clinical program.
In 1984, when Anker, along with Kelly and Willshire Carrera founded the Immigration and Refugee Advocacy Clinic, the study of immigration law was still in its infancy, and clinical education was relatively new in legal education.
And, according to Kelly, Anker was writing the law from the beginning. “The article she co-authored on the legislative history of the Refugee Act [and] shaped how that law would be interpreted, with the U.S. Supreme Court citing it in support of an internationalist approach to refugee and asylum law, grounded in our treaty obligations, as signatories to the U.N. Protocol relating to the Status of Refugees,” said Kelly. “She authored some of the first empirical studies of immigration adjudication and co-authored the first study of the expedited removal process for addressing the claims of asylum seekers at the U.S. border.”
According to Willshire Carrera, Anker “believes in bringing the reality of the law as it is experienced by real people into the classroom and into scholarship. We developed an approach of ‘legal change from the bottom up,’ changing ground-level legal institutions, which set the stage for changes at higher levels, including in precedent decisions in the federal courts.” From its earliest years, HIRC worked to bring administrative decision-making out of the shadows, publishing administrative asylum decisions, which were otherwise inaccessible to advocates and researchers.
During these early years, Anker also worked with Hathaway, who developed a structured human rights approach to interpretation of refugee law, an approach HIRC would adopt including in much of its women’s refugee work.
Credit: Kris Snibbe/Harvard Staff Photographer Anker (pictured here in 2014) with (from left) Julina Guo ’14, John Wilshire Carrera, and Nancy Kelly. Wilshire Carrera and Kelly founded the Harvard Immigration and Refugee Clinic with Anker in 1984.
Anker’s background in racial justice led her to work with Haitian refugees beginning in the mid 1980s. “I got to know civil rights lawyer Ira Kurzban, who was leading the charge on behalf of Haitian refugees fleeing a horrible and violent dictatorship, which the U.S. had backed.” Among other work, Kurzban engaged Anker as an expert witness on U.S. asylum law, in challenges he brought based on discriminatory detention and treatment generally of Haitian refugees. She would continue to be called in as an expert, including later in challenges brought by Canadian NGOs in 2005 and 2017 to exclusionary policies of the Canadian government, refusing entry to asylum seekers coming from the U.S. under the Safe Third Country Agreement.
The Canadian Supreme Court will soon issue a ruling on whether the Canadian policy of returning asylum seekers to the U.S. complies with the Canadian Charter and international law. Canadian attorney Andrew Bouwer praised Anker’s work on the Safe Third Country Agreement and says he looks forward to her continued advocacy on these issues. “Professor Anker is a force of nature! Working with her on Canada-US border issues, especially the inhumane Canada-U.S. Safe Third Country Agreement, these past 17 years has been an incredible honor and a highlight of my practice.”
Also in the 1980s, Anker helped found the Boston Committee against Deportation, defending a group of Haitians who were arrested by immigration authorities as they attempted to organize a union at Faneuil Hall market place.
HIRC continued this work with Haitian refugees who fled again during the 1990s after the violent overthrow of Haiti’s first democratically elected president, Jean Bertrand Aristide. HIRC’s early engagement with Haitian refugees led to groundbreaking work on gender asylum. “After President Aristide was deposed, there were security forces who went into women’s houses (the men had mostly fled) and raped them, because they were known, or assumed to be, supporters of Aristide,” explained Anker. “So it was really rape used as punishment based on ‘political opinion,’ one of the grounds of protection in the refugee treaty to which the U.S. is a party.”
Working in conjunction with other groups, HIRC got the administrative Board of Immigration Appeals to recognize that this was a form of what the agency called “grievous harm,” which HIRC argued fit the concept of persecution. “This case, Matter of D.V., was the first administrative gender asylum decision; along with others, we were able to convince the board to publish it as a precedent decision,” said Anker.
Meanwhile, the group traveled to Haiti to collect affidavits; their work ultimately led the Inter-American Commission on Human Rights to make the first finding by an international human rights body that rape could constitute torture.
This in turn contributed to greater global awareness of violence against women within a human rights framework. Canadian NGOs and academics took the lead, particularly through the Canadian Immigration and Refugee Board. “The Canadians worked up an amazing series of guidelines, and we [the HIRC] took those and adapted them to American law,” Anker said. “We published these and asked the U.S. government to take our guidelines and issue official government guidelines, based on them — and in fact, they did that.” Later, HIRC led a major amicus effort, drafting a brief to the then-attorney general signed by 187 organizations and individuals, arguing that violence against women in the “domestic” sphere, that is, in the home by sexual intimates, could be the basis for protection. Eventually the attorney general reversed an original denial and the petitioner, represented by the Center for Gender and Refugee Studies, was granted asylum.
(HIRC was) committed to having legal education grounded in actual clients’ experiences of persecution. … We set a precedent that law school clinics are not just a place to do policy work or major litigation, but also a place to engage with clients, to get to know them and to help them articulate their experiences. … I am grateful to the law school for allowing us to advance that approach to legal advocacy and education.
Deborah Ankernone
Personal involvement became key in Anker’s approach to teaching. “We were committed to having legal education grounded in actual clients’ experiences of persecution. Students represented clients and learned to help them tell their stories. We then gave them the time to reflect in class and to write about it. We set a precedent that law school clinics are not just a place to do policy work or major litigation, but also a place to engage with clients, to get to know them, and to help them articulate their experiences,” said Anker. “I am grateful to the law school for allowing us to advance that approach to legal advocacy and education. We now have such a rich and diverse clinical education program at the law school, which has developed in many different directions – client work, policy advocacy, regulatory reform, as well as litigation.”
Anker also points to the clinic’s work with the United Nations High Commissioner for Refugees (UNHCR) to develop general guidelines for international refugee law.
“My perception was that few academics and major practitioners around that time, the mid to late 1990’s, were thinking conceptually about this. Jim Hathaway’s work was a major force in bringing a principled, and importantly structured, human rights approach to interpretation of refugee law,” said Anker. “We got the UNHCR to adopt general guidelines recognizing gender itself as a category of protection within the refugee treaty’s ‘particular social group’ ground. In the amicus work we have done over the years, we have stuck to this approach and increasingly federal courts as well as some administrative decision makers are recognizing that gender itself can be a basis for protection, including in the ground-breaking 2020 First Circuit decision in De Pena-Paniagua v.Barr, which directly adopted language from HIRC’s lead amicus brief.”
HIRC has continued to expand its scope, working in recent years with students who were eligible for DREAM Act protection. Most recently, Anker and the group have worked on climate change and refugee law, pushing for interpretations of the law to account for the large-scale climate-based displacement that is already occurring in Central America and is expected to worsen. “We need to show decision makers and policy makers that displacement is caused by multitudes of factors and a person can qualify for protection if part of the cause is environmental,” said Anker.
“Our work has always been informed by what is happening,” Kelly said. “The gender work came from a sense of, ‘Where are the women in this system? They don’t seem to be represented’. The Haiti work was geared toward what happened to Haitian women after the coup in 1991. That brought the reality home of what was happening to Haitian women, and got that recognized in a legal context that could then be brought back to cases in the US. The two are integrally connected.”
“We pride ourselves on doing work from the ground up,” Willshire Carrera said. “We’ve had a large number of students who have gone on to be major contributors in the development of asylum law in the country. One thing for sure is that the clinic is now very well recognized. So much of that has to do with Debbie.”
Former students pay tribute
Ardalan, who now directs HIRC, acknowledges a significant personal influence. “Debbie has shaped the course of my life. I have learned so much from her advocacy and scholarship, from her empathy in working with clients, from her tremendous care for her students and colleagues, and from her incredible persistence in continuing to fight against injustice no matter what the odds. She has modeled for me how to approach teaching and lawyering with dedication, humility, strength, and compassion.”
Anker’s influence also goes far beyond Harvard Law School. According to Mark Fleming ’97, who studied with her at Harvard Law and is now a partner at WilmerHale, “Debbie’s contribution to how young lawyers thought about immigration law really can’t be overstated. She was the first person I met at HLS who was not only a gifted academic, but devoted to using her knowledge to represent clients. She used her knowledge to manage a significant group of people who were trying to push immigration law in a good direction and to help people who needed it. That was a new thing to me.”
Fleming currently does pro bono work in the immigration field and cites this as an example of Anker’s influence. “One of the more important lessons she taught me is that immigrants who come to our country are thrown into a very complicated system without anybody to help them. She showed me that things immediately change when a lawyer shows up, so a pro bono lawyer can make an enormous difference.” This, he said, goes back to his days at Harvard Law. “As a law student, the opportunity to walk down the street, to what used to be called Cambridge and Somerville Legal Services, had an impact. First of all, it was terrifying, because I had no idea what to do. But also very rewarding, because people in the system are otherwise forced to navigate it by themselves.”
“Debbie’s seminar influenced the way I think about asylum,” said Fatma Marouf ’02, who now directs the Immigration Rights Clinic at Texas A&M University School of Law. “The way she talked about absorbing each person’s story, I never forgot that. She walked us through each element of her incredible text about the law of asylum, and made sure we had a great understanding of it. She helped us connect the cases we were working on with the thinking behind it. And I loved that she really got in an international perspective — not just U.S. asylum law but how the U.K., Canada, Australia might approach it.”
Marouf particularly credits Anker with emphasizing the connection between asylum and human rights law. “When I teach my own clinic I talk about the importance of bringing in a comparative perspective of what asylum should be, versus how it is — and that’s all Debbie’s. I don’t know if I could have gone into immigration law without her, much less fallen in love with teaching.”
Credit: Brooks Kraft
“She built a program at a time when immigration clinics were not found at many law schools,” said David B. Thronson ’94, who went on to teach international human rights law at Michigan State University. “Part of what impressed me from the beginning is that her work is absolutely compelling and consequential; it changes peoples’ lives. You’re talking about people who are going to face persecution in their home countries if they are returned. It’s not an equal fight, the stakes and the consequences are high and their resources are often minimal; the government is always well represented but the migrant seldom is. To find someone with Debbie’s expertise and willingness to take on those issues — and who is also a tremendously human person that you can get to know — makes a huge difference, and it was a really defining law-school experience for me.”
That experience stuck with Thronson through his career. “I got the realization that things could go together; I could be a professor and still make a difference in the real world, representing clients — and hopefully I can do that in a way that lets my students grow and have good experiences. Debbie taught me that those aren’t mutually exclusive things to do.”
Another former student, Rebecca Sharpless ’94, now directs the immigration clinic at the University of Miami School of Law. “Debbie was the single most influential professor during my time at HLS. As I started my first year, I knew that I wanted to be a social justice lawyer, but I didn’t know what kind. Debbie taught me the urgency and importance of working with immigrants. Her work on some of the most difficult issues relating to the protection of refugees has been pathbreaking, but to me she is first and foremost a teacher and mentor. Under her guidance, I argued in immigration court, organized a trip to Miami to help Haitian refugees, and contributed to federal court briefing. Without a doubt, she made me into the immigration lawyer and teacher that I am today.”
Looking back on a lifetime of impact
Anker has been designated a Woman of Justice by the Massachusetts Bar Association, and in 2011 was elected as a fellow to the American Bar Foundation. The HIRC’s Women’s Refugee Project, which spearheaded work on gender asylum, received the American Immigration Lawyers Association’s (AILA) most prestigious “Founders Award.” HIRC also received AILA’s Human rights award for its work in clinical legal education and advocacy on behalf of refugees. Anker has received AILA’s Elmer Fried Excellence in Teaching Award; two awards for gender asylum work from the Federal Bar Association; the Massachusetts Governor’s New American Appreciation Award; and the CARECEN Award from the Central American Refugee Center.
Presenting her with the latter honor, lead attorney Patrick Young called Anker “one of the architects of modern refugee law. She really defined the field from its inception and her essays and her seminal treatise, ‘Law of Asylum in the United States,’ have helped educate and train two generations of asylum lawyers. Without her thoughtful guidance, it is doubtful CARECEN and many other refugee defense programs could have succeeded in protecting the persecuted as effectively as we have.”
In addition to those already mentioned, Anker notes that “HIRC and I are so fortunate to have on staff attorneys Sameer Ahmed, Jason Corral, Tiffany Lieu, Mariam Liberles and Cindy Zapata. HIRC’s staff also includes our head of social work, Liala Buoniconti; paralegal Karina Buruca; Mary Hewey; and Anna Weick, our chief administrator.” Anker credits her faculty assistant, Sophie Jean, as being an incredible resource, organizing work on “Law of Asylum” research with students, among other invaluable assistance. “Not much can be accomplished without her amazing intelligence and commitment, and of course thank you to those who have come and gone like the incomparable Jordana Arias, a force of nature, and all my assistants going way back to wonderful Delona Wilkins.”
In entering emerita status, Anker reflects back with much gratitude at the opportunities she has been given. “I love this community and I love this work. It truly has been an honor. I am so very grateful.”
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Thanks and many congrats, Debbie, my long-time friend, for all you have done for due process, justice, humanity, and the future generations of the “New Due Process Army!” I wholeheartedly concur in the comments of my friend and Round Table colleague “Sir Jeffrey!” Through your intellectual brilliance, moral courage, extraordinary leadership, and ability to teach and inspire others, you have certainly left a permanent mark on the worldwide, eternal quest for justice!
As one more reminder of what we’ve lost, the text of the 1973 Roe v Wade ruling is unlikely to console us. Even so, I recommend downloading the pdf. In the wake of its overturning, this beautifully written document – which reads like a long form essay – is not only interesting in itself but now seems like another sign of how much has changed over the last half century, in this case for the worse.
Drafted by Justice Harry Blackmun, the ruling includes a clear and persuasive summary of the history of abortion law. “At the time of the adoption of our Constitution, and throughout the major portion of the 19th century, a woman enjoyed a substantially broader right to terminate a pregnancy that she does in most States today.” It tracks the centuries-old debate over when life begins, and dismisses the argument that a fetus is a person guaranteed the protections afforded US citizens. Throughout, it strikes us as the careful explication and clarification of a law, of legal precedent, unlike Justice Alito’s ruling in Dobbs v Jackson Women’s Health, which seems more like an expression of religious conviction masquerading as an unbiased interpretation of the constitution.
The Roe ruling is not about states’ rights. It’s about power and control | Derecka Purnell
What’s most striking about Roe v Wade – and its difference from the ruling that overturned it – is its eloquence. Blackmun’s lucid, frequently graceful language reflects a commitment to decency and compassion. The judges are clear about the dangers of carrying an unwanted child or a high-risk pregnancy to term. They strive to see the issue from the perspective of those confronting a serious life crisis, and to imagine the devastating outcomes that pregnant women and their families may face.
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“Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by childcare. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.”
The passage I admire most is the one in which Blackmun, at once profound and lyrical, describes the atmosphere surrounding the issue of abortion, the way our opinions are formed, and the pressures that the law must acknowledge and keep in balance.
“We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion. In addition, population growth, poverty, and racial overtones tend to complicate and not to simplify the problem.”
And there it is: a superbly rendered catalogue of the factors that come to mind when we consider the factors that will now determine whom Dobbs will hurt most: poverty, race, and life on the raw edges of human existence – an edge, one might say, on which every decision about abortion is made.
. . . .
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Read the rest of Francine’s article at the link.
Let’s face it. The concern for human life of out of touch righty ideologues like Alito ends at birth. After that, the “others” are expendable — particularly if they are women or folks of color!
All their claimed concern about “personhood” ends at delivery — when it can no longer be used to threaten vulnerable pregnant women or medical professionals. After that, the GOP program for kids (whether wanted or not) consists of things like:
Valuing their lives below the “right” of every Tom, Dick, and Harriett in America to own and use military-style assault weapons (something that certainly wasn’t the “original intent” of the drafters of the 2d Amendment);
Cutting education budgets, “dumbing down” public school curriculums, and harassing teachers, school administrators, and school board members;
Imposing work requirements on public assistance without regard to the needs and availability of suitable child care;
Deporting their parents to far away countries without concern for the welfare of children (US citizen and others);
Declaring “war” on vulnerable kids who aren’t heterosexuals;
Opposing provisions that would expand the availability of health insurance to kids;
Spreading misinformation about life-saving vaccines for children;
Falsely denying climate change that threatens the world we will leave to our kids and future generations;
Spreading fear and terror in ethnic communities containing “mixed families” to discourage them from taking advantage of available community services;
Threatening the educational rights of non-citizen children currently guaranteed by Plyler v. Doe (but perhaps not for long, if the Clarence Thomases of the world have their way);
Treating kids in Immigration Court as less than “persons” entitled to full due process (for example, forcing toddlers to “represent themselves” in life or death asylum cases);
Separating families;
Detaining families and children in grossly substandard conditions;
Making it more difficult for people of color to vote and thus exercise their legal and political rights;
Being more concerned about BLM protests than in the loss of young black lives that generated them.
I could go on an on.
One essential starting place and training ground for a “new generation” of Federal Judges who will be committed to humane values, empathy, accurate historical understanding, due process, and equal justice for all is the “retail level” of our justice system — the U.S. Immigration Courts, currently controlled solely by AG Merrick Garland. That’s why Garland’s disturbing failure to instill progressive values and install scholarly progressive judges — the best, brightest, and most courageous — in his now-dysfunctional EOIR system should be of grave concern to advocates of individual choices and anyone who cares about equal justice for all and the future of our nation!
The GOP-dominated Federal Judiciary has become a tool of authoritarians and religious zealots who seek to wipe out established individual rights, reduce humanity, and insert themselves and their out of touch views into every aspect of human existence — ultimately threatening the very future of humanity!
The Dems, by contrast, are the party of individual rights and human freedom. Too bad they haven’t done a better job of selling, and sometimes of following and boldly acting upon, their own stated values!
Jarndyce v. Jarndyce: “The suit does not sleep; we wake it up, we air it, we walk it about. Thats something.” From “Bleak House” by Charles Dickens (1895). Garland has created a “Dickensonian” nightmare @ EOIR — including rushing some arbitrarily selected poor souls through his broken system to deportation orders with little or no process at all, let alone due process of law!
TRAC Immigration reports:
Transactional Records Access Clearinghouse
Pace of Immigration Court Processing Increases While Backlog Continues to Climb
The latest case-by-case records show that the Immigration Court backlog reached 1,821,440 at the end of June 2022. This is up 25 percent from the backlog just at the beginning of this fiscal year. These figures are based on the analysis of the latest court records obtained through Freedom of Information Act (FOIA) requests by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.
New Immigration Court cases continue to outstrip the number of cases being closed. So far during the first nine months the court received 634,594 new cases, but has only managed to dispose of 287,711. These closures took 1,130 days on average or more than three years from the date of the Notice to Appear (NTA) to the court’s disposition. Part of the delay represents the time it took from the Department of Homeland Security to actually file the NTA after it was issued. This delay reached record levels during the Trump administration three years ago, but NTAs are being filed much more promptly under the current administration.
The pace of court closures also has been accelerating. After the partial government shutdown in March 2020, court closures averaged just 6,172 per month for the remainder of that fiscal year. During FY 2021, court closures roughly doubled to 12,055 on average per month. By the end of the first six months of FY 2022, monthly closures had again doubled to an average of 23,957 per month. And this last quarter covering just the three-month period from April – June 2022, monthly closures doubled again to 47,991 on average each month.
According to court statistics, immigration judges on board at the beginning of this past quarter had increased just 6 percent over levels at the beginning of FY 2022. Thus, the increase in judge hiring only accounts for some of this speedier pace. A more important factor appears to be the many changes implemented by the Biden administration to increase the speed that court cases get scheduled and decided. However, as TRAC has reported, the increase in speed has come with heightened due process concerns, increasing the number of asylum seekers unable to secure legal representation which then greatly diminishes their opportunity to adequately prepare and present their asylum claims.
For more highlights on the Immigration Court, updated through June 2022, go to:
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:
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University Peck Hall
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Syracuse, NY 13202-3117
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trac@syr.edu
https://trac.syr.edu
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
See More from Elizabeth Gibson
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.
USCIS: Where community levels are high, all federal employees and contractors—as well as visitors two years old or older—must wear a mask inside USCIS offices and physically distance regardless of vaccination status. Chicago is no longer listed as High. NYC is now listed as High. Check CDC Level for Your Region.
DHS Announces Extension of Temporary Protected Status for Venezuela
DHS: The 18-month extension of TPS for Venezuela will be effective from September 10, 2022, through March 10, 2024. Only beneficiaries under Venezuela’s existing designation, and who were already residing in the United States as of March 8, 2021, are eligible to re-register for TPS under this extension.
WaPo: Texas Gov. Greg Abbott ordered state National Guard soldiers and law enforcement officers Thursday to apprehend and return migrants suspected of crossing illegally back to the U.S.-Mexico border, testing how far his state can go in trying to enforce immigration law — a federal responsibility.
LATimes: The new effort, called the Trusted Adult Relative Program, is being tested at a Border Patrol station in Texas, according to three sources who were not authorized to speak publicly. A Department of Homeland Security official, who spoke on the condition of anonymity, said a few dozen children have been reunified with family members since the program began in May. Agency officials said the program utilizes existing procedures to unify families in an efficient way.
Documented: ICE is moving New Jersey immigrants like Hercules Aleman – who face charges in criminal or family court – to out-of-state immigration detention facilities. But the agency is usually not notifying the group of immigration legal providers funded by the state to represent these detained immigrants.
CNN: The Biden administration asked the Supreme Court on Friday to stay a court order blocking the Department of Homeland Security from implementing immigration enforcement priorities — potentially setting up Justice Ketanji Brown Jackson’s first vote since joining the court.
Politico: The nine-month investigation, which culminated in a 511-page report by the department, found no evidence that agents used horse reins to strike people during an “unprecedented surge in migration” of about 15,000 Haitians near the international bridge. However, agents acted in unprofessional and dangerous ways, including an instance in which an agent “maneuvered his horse unsafely near a child,” investigators wrote.
TRAC: According to the latest data released by Immigration and Customs Enforcement (ICE), the agency held 23,156 immigrants in detention on July 5, 2022. Of these, 17,116 were arrested by Customs and Border Protection (CBP) while 6,040 were arrested by ICE agents. Detention numbers have increased slightly from about 20,000 in early 2022 to now hovering around 24,000, but have not otherwise seen significant growth that would lead to the large numbers of immigrants that were detained prior to the pandemic when the detained population topped out at more than 60,000.
TRAC: The number of criminal referrals sent by the Border Patrol and other Customs and Border Protection (CBP) officers have recently begun to rise. Detailed case-by-case government records obtained by TRAC after successful litigation show that during April 2022, CBP referred 2,015 individuals for criminal prosecution to federal prosecutors. This is the first time referrals topped the 2,000 mark since the pandemic began slightly more than two years ago. Levels in April 2022 were up 31 percent from one year earlier when in April 2021 there were a total of 1,537 criminal referrals from CBP.
NYT: Extensive details of their years together were also left behind in grainy snapshots, police reports, immigration forms, nonprofit records, court transcripts and old emails. See also The Story of 2 Homeless Men and the Meaning of Friendship.
Law360: The Fifth Circuit refused to reinstate the Biden administration’s attempt to narrow the number of immigrants prioritized for removal, splitting sharply from the Sixth Circuit to find that the effort likely violated federal immigration law.
LexisNexis: [T]he agency failed to consider and explain the impact of evidence that the Salvadoran government’s efforts in the “war on the gangs” had not been successful, such that gang members operate with impunity and security forces commit extrajudicial killings of suspected gang members, both of which pose threats to Giron.
LexisNexis: Consistent with our own precedent and that of every other circuit to consider this issue, we hold that the failure of an NTA to include time and date information does not deprive the immigration court of subject matter jurisdiction, and thus Bastide-Hernandez’s removal was not “void ab initio,” as the district court determined.
Law360: The Ninth Circuit on Friday declined to review a Mexican man’s bid to vacate a deportation order, saying he should have applied for a green card before a law preventing inadmissible individuals from becoming lawful permanent residents took effect.
LexisNexis: The BIA affirmed based upon the IJ’s adverse credibility determination. We grant Barseghyan’s petition for review because three out of four inconsistencies relied upon by the BIA are not supported by the record.
LexisNexis: [W]e find that the respondent’s conviction for injury to a child in violation of Texas Penal Code § 22.04(a)(3), does not require “physical force” as defined in 18 U.S.C. § l6(a), and interpreted in Johnson and Stokeling. Thus, the respondent has not been convicted of a crime of violence aggravated felony and is not barred from establishing her eligibility for cancellation of removal.
Law360: Private contractors will no longer be used by U.S. Immigration and Customs Enforcement to make immigration arrests at California jails and prisons, as part of a settlement ICE reached with a detainee represented by the American Civil Liberties Union.
Law360: A 15-year U.S. Department of Homeland Security veteran and an agent who retired from the agency gave secret information to Chinese spies engaged in a harassment and repression campaign against U.S.-based critics of the Chinese government, the U.S. Department of Justice said Thursday.
AILA: The CIS Ombudsman’s Office provides a reminder that USCIS updated the special instructions on its Form I-130, Petition for Alien Relative page to help filers ensure that USCIS sends their form to the correct location after it is approved.
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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
Federal Courts at all levels continue to lose credibility because of their adherence to a biased far-right agenda that is bad for American democracy.
Let’s see, the BIA manufactures inconsistencies to reach a bogus “adverse credibility” ruling in an asylum case(9th Cir.). They also ignore clear evidence of the complicity/total ineptitude of the Salvadoran Government in a CAT case (2d Cir.).
Folks, these aren’t contract cases, property disputes, commercial squabbles, or minor misdemeanors. They are life or death matters — persecution and/or torture can result in extreme pain, suffering, permanent damage, and death.Serious matters require serious judging by qualified exert judges!
Meanwhile, a righty panel of poorly qualified 5th Circuitjudges drives over established law on Executive prosecutorial discretion to uphold Trump toady Judge Drew Tipton’s clearly wrong-headed attempt to wrest control of ICE enforcement away from the Biden Administration. This gross judicial malpractice is nothing short of a national disgrace that impugns the integrity of the entire Article III Judiciary.
There are still far too many examples of how Garland is contributing to the problem by failing to root out the deadwood (and worse) at EOIR. He should be bringing in new judicial talent committed to due process, scholarship, and best practices.
A “Better EOIR” would not only begin fixing many of the legal and practical problems plaguing our immigration, human rights, and racial justice systems in America, but also could “model” a better American judiciary for the future. It would be a training ground for future, better qualified, Article III judicial appointments: Folks who actually understand and respect delivering justice at the “retail level” and are committed to serving humanity, not kowtowing to party bosses or wooden, perverse, retrograde ideologies.
It is possible for good judges to solve problems rather than creating them or making them infinitely worse. But, you sure wouldn’t say that is happening with today’s out of touch, ivory tower, and poorly performing Federal Judiciary. A better EOIR could keep cases out of the Circuits, thereby eliminating the opportunity for right-wing ideologues to screw up immigration and human rights laws in their White nationalist restrictionist crusade!
This is a judiciary now dominated by far too many right wing judges who got their jobs by demonstrating a commitment to far righty ideology and furthering the GOP’s political agenda rather than by distinguished legal careers that exemplified courage and improving humanity by insuring fair and reasonable applications and interpretations of the law.
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
Michelle writes:
Sent: Wednesday, July 6, 2022 7:38 PM
While the facts were definitely bad in this case, I do think the decision provides a helpful framework for a fairly common issue–impeachment leading to adverse credibility– whereas before we did not have a framework and relied on the Federal Rules of Evidence. Through this decision, we now know and can argue that impeachment evidence may contribute to a credibility determination only where the evidence is probative and its admission is not fundamentally unfair, and the witness is given an opportunity to respond to that evidence during the proceedings. It is up to us to enforce these limitations. Furthermore, note a few helpful footnotes. Footnote 3 notes that proceedings were continued after DHS submitted impeachment evidence and both parties were given the opportunity to provide evidence and argument. This is what should happen. Footnote 4 refers to DHS correctly using the evidence as impeachment evidence as opposed to submitting late-filed evidence under the guise of impeachment, which is what usually happens and we must object to. Footnote 5 reminds us tochallenge the IJ’s determination that the border official’s notes are accurate and reliable pursuant to Matter of J-C-H-F-, 27 I&N Dec. 211, 216 (BIA 2018), which is a case we cover during our trial skills trainings. All in all, a bad outcome for this respondent, but a helpful case to the rest of us who want to avoid a similar outcome.
Michelle
N. Méndez | she/her/ella/elle
Director of Legal Resources and Training
National Immigration Project of the National Lawyers Guild
Thanks Michelle, my friend!Please note that Michelle is now Director of Legal Resources & Training at NIPNLG and has provided her new contact information above.
NDPA advocates should also check out these other recent practice advisories from Michelle and her terrific team that transitioned from CLINIC to NIPNLG, two of which were in partnership with ILRC:
Practice Advisory: Understanding and Overcoming Bars to Relief Triggered by a Prior Removal Order (June 29, 2022):
I always offered the respondent a continuance to examine the impeachment evidence. However, few took my offer. I think that was because:
For those in detention, it meant further extending the period of detention;
For those on the always backlogged non-detained docket, continuances often meant months before the hearing could resume.
Instead, most counsel just took my offer of a short recess to examine the evidence and discuss it with the respondent.
As Michelle points out, it will be up to counsel to insure that these rules are enforced. In the “rush to deny for any reason” — still a major “cultural” problem at EOIR that Garland has failed to systemically address — precedents and aspects of precedents favorable to the respondent are too often ignored, glossed over, or distinguished on bogus grounds. It’s up to the NDPA to “hold EOIR Judges’ and ICE ACCs’ feet to the fire” on these points!
Garland had a chance to bring in folks like Michelle and other NDPA superstars to “clean up” EOIR and restore first class scholarship, due process, and fundamental fairness as the mission, but failed to do so. The results of his failure are pretty ugly, especially for those individuals seeking justice in a dysfunctional system where fair, legally correct results are a “crap shoot” 🎲 — at best! It doesn’t have to be that way!
No, one appointment can’t fix a broken system! And, there are still far, far too many “90% deniers” on the Immigration Bench!
Additionally, the BIA keeps churning out just about everything but badly needed and long overdue precedents making the legally appropriate and more generous version of asylum promoted by the Biden Administration during their election campaign a reality. That logically should have followed on the heels of Garland’s decisions to vacate some of the very worst and most legally incorrect Trump-era precedents.
Certainly, justice has been harmed by Garland’s failure to “clean house” at the BIA and to bring in asylum experts who would aggressively issue positive asylum precedents while making sure that “deny ‘em all” IJs either got the message or got off the bench!
But, I have learned that later this month, one of the finest legal minds in America will be assuming an appointment as a U.S. Immigration Judge. It’s a tough assignment right now, but an opportunity to save some lives, teach others from the bench, and “model” the type of Federal Judiciary for the future that Garland should already be showcasing at EOIR.
I always appreciate it when “the best and the brightest” apply for these cosmically important Immigration Judge position at both the trial and appellate levels. Never has their country needed them and their skills more.
I am also gratified when Garland actually picks at least some of the best and most talented for these jobs. Clearly, that that hasn’t always been the case in the past under Administrations of both parties, as the current meltdown and dysfunction at EOIR with lives and futures at stake shows. Let’s hope it is the wave of the future!
