Tag: Attorney General Merrick Garland

🏴‍☠️☠️🤮 CONVENTION AGAINST TORTURE (“CAT”) — For More Than Two Decades, The BIA Has Let Stand Its Legally Wrong & Highly Misleading “Precedent” Matter of S-V- — Now, “Sir Jeffrey” Chase Of The Round Table 🛡⚔️ Tells You How To Use The Real Law To Force Garland’s Scofflaws To Follow The Rule Of Law In A Failed System!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

https://www.jeffreyschase.com/blog/2022/11/17/understanding-government-acquiescence

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

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Understanding Government Acquiescence

I would like to discuss a concept related to asylum, involving protection under Article 3 of the U.N. Convention Against Torture (commonly referred to as “CAT” for short). Although lacking the benefits afforded to those granted asylum or admitted as refugees, the importance of CAT as a protection from deportation has increased in recent years due to the complex nature of current asylum claims, which require greater effort to interpret causation than claims that were more commonly decided decades ago.

Whereas asylum requires a connection between the persecution and the applicant’s race, religion, nationality, membership in a particular social group, or political opinion, CAT protects those who are at risk of torture for any (or no) reason. CAT therefore can (and has) saved lives where the person at risk could not demonstrate to the adjudicator’s satisfaction a sufficient connection to one of the five mandatory asylum grounds.

While not requiring specific causation, CAT does require that the torture be “by, or at the instigation of, or with the consent or acquiescence of, a public official…”1 When (as is often the case) the torturers are a gang or drug cartel, what is required of an applicant to establish government acquiescence?

According to federal regulations, “Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.”2 Thus, the regulations make it clear that acquiescence is a two-step test for (1) awareness, and (2) breach of responsibility to intervene.

Back in 2000, the BIA addressed the meaning of “acquiescence” in a precedent decision, and managed to get it very wrong. In its en banc decision in Matter of S-V- , the majority defined “government acquiescence” as a government’s willful acceptance of the torturous activity.3 How it managed to look at the above two-step test and come up with “willful acceptance” (which, incidentally, is only one step) is anyone’s guess.

Not surprisingly, the Board’s standard was universally panned by the circuit courts. With the recent decision of the First Circuit in H.H. v. Garland 4, nine circuits have now outright rejected the BIA’s take as overly restrictive, holding that the proper test is satisfied where the government in question remained “willfully blind” to the commission of torture. The remaining two circuits, while not directly overruling the Board’s take, have nevertheless applied the “willful blindness” standard. No circuit has deferred to the BIA’s interpretation.

However, until just recently, only one circuit – the Second – clarified that acquiescence requires a two-step test as described above. The remaining circuits were content to correct the language of the Board’s one-step standard from “willful acceptance” to one including “willful blindness” and then leave it at that.

Last year, Prof. Jon Bauer at the Univ. of Connecticut Law School wrote an excellent article that did a wonderful job of explaining the proper standard and the shortcomings of existing case law on the topic.5 I believe that Prof. Bauer’s article (available at the above link) should be required reading for Immigration Judges.

In summary, Bauer’s article flagged several flaws in the common view of acquiescence. The first is the mistaken belief that “willful blindness” is the entire test for acquiescence. Bauer points out that the circuit courts have held that the “awareness” step (step one) may be met either through a government’s willful blindness or through its actual awareness. But willful blindness is neither an absolute requirement nor a minimum standard for establishing both awareness and breach of legal duty elements; it simply expands the manner in which the awareness prong may be satisfied.

Importantly, in most cases, actual awareness can be established without the need to rely on a government’s willful blindness. As Bauer points out in a footnote, at least two circuits recognize government awareness as being satisfied where the government is “aware that torture of the sort feared by the applicant occurs.”6 In other words, awareness doesn’t require the government to have specific knowledge of a plan to torture the CAT applicant; it is enough that ts agents are aware that, e.g., MS-13 is engaging in this sort of conduct within the country to satisfy the awareness prong.

Bauer additionally emphasized that acquiescence remains a two-step test, and that “willful blindness” is relevant to only the first step. The standard for satisfying step two, the breach of duty to intervene, remains a blank slate. Neither the BIA nor the circuit courts have stated what is required to establish a likelihood that the government will breach its responsibility to intervene.

Bauer points out that the confusion concerning willful blindness has caused some adjudicators to view any action (no matter how ineffectual) by the government in question as precluding a finding of acquiescence, regarding even a minimal response as proof that the government was not being “willfully blind” to the torture. But as Bauer notes, willful blindness has nothing to do with the obligation to intervene. Once awareness is established (either through actual awareness or willful blindness), the focus turns to the separate question contained in step two of whether the duty to intervene was breached.

As to the breach prong, Bauer opined that the test applied under international law, requiring states “to exercise ‘due diligence’ to prevent, investigate, prosecute, and punish acts of torture by non-State actors,” is the correct one for adoption as the domestic standard for step two. Bauer explains how this interpretation is consistent with the CAT’s text and drafting history, as well as the legislative history of US ratification and implementation of the treaty.7

The confusion cited by Bauer as to the proper standard to be applied is exacerbated by the fact that the Board has never vacated its precedent decision in S-V- setting out the incorrect standard. And it was that failure to fix what was obviously broken that led to the First Circuit’s recent lesson on the topic in H.H. In that case, an Immigration Judge denied CAT by applying the Board’s incorrect “willfully accepting” standard. And perhaps because the case arose in the First Circuit, which at the time had yet to directly refute the Board’s approach in a published decision, the BIA affirmed the Immigration Judge’s decision applying the erroneous standard.

Fortunately, the petitioner in that case was represented on appeal to the First Circuit by SangYeob Kim and Gilles Bissonnette of the ACLU of New Hampshire. Petitioner’s counsel did an excellent job of explaining the state of confusion on the topic, and of presenting the clear solution in line with Bauer’s approach. Counsel also enlisted the Round Table of Former Immigration Judges to weigh in on the topic with an amicus brief drafted for us by the law firm of Cooley LLP.8

The result was an excellent published decision deserving of our attention. First, the circuit panel found that the BIA “failed to meaningfully address H.H.’s alternative theory that MS-13 itself is a de facto state actor.” The court found that in simply labeling the argument “unpersuasive,” the Board provided an insufficient degree of analysis to facilitate appellate review. That argument remains one that practitioners should continue to raise in both the CAT and asylum contexts.9 And practitioners may now wish to cite to the language in H.H., which is the first published decision to demand a detailed explanation from adjudicators as to why they find such argument unconvincing.10

In addressing Matter of S-V-, the court joined the list of circuits rejecting the Board’s standard. Specifically, the court found the term “willful acceptance” to clash with Congress’s clear intent for awareness to be satisfied through both actual knowledge and willful blindness. As the court pointed out, willful acceptance “necessarily includes knowledge of the matter one is ‘accepting,’ and excludes the concept of willful blindness.”

Finding that the BIA applied an improper standard of review by treating the acquiescence issue as clearly factual, when the inquiry regarding “‘whether the government’s role renders the harm ‘by or at the instigation of or with the consent or acquiescence of a public official,”’ is legal in nature and is subject to de novo review,” the court remanded for the Board to consider under a de novo review standard “the question of acquiescence, understanding that a showing of willful blindness suffices to demonstrate an “awareness” of torture under the CAT.”

However, the court did not stop there.  It continued on to the question of the breach of obligation, observing that the regulations set out a two-step inquiry, yet noting that “most of the courts that have adopted the willful blindness standard have not consistently distinguished between the ‘awareness’ and ‘breach of duty’ steps.”

On remand, the court left it to the Board to address the proper standard for the breach requirement in the first instance.  But the court advised “that we join the Second Circuit in expressing skepticism that any record evidence of efforts taken by the foreign government to prevent torture, no matter how minimal, will necessarily be sufficient to preclude the agency from finding that a breach of the duty to intervene is likely to occur….Rather, on remand, the agency’s determination about breach of duty, to the extent such a determination is necessary, must be made after carefully weighing all facts in the record.”11

It is puzzling why it took 22 years for the Board to be given that direction by a circuit court. And from experience, it will take the Board some time to respond in the form of a precedent decision. As many lives will be on the line in the meantime as claims are heard by Immigration Judges (and in some instances by USCIS asylum officers, under new procedures for claims arising at the border), those deciding CAT cases are respectfully urged to reference the full decision in H.H. as well as Prof. Bauer’s article, which practitioners should also file, cite, and discuss in their briefs and arguments. Litigants and judges should work together towards getting this important standard right. Lives depend on our doing so.12

Copyright 2022 Jeffrey S. Chase. All rights reserved.

Notes:

  1. 8 C.F.R. § 1208.18(a)(1).
  2. 8 C.F.R. § 1208.18(a)(7).
  3. 22 I&N Dec. 1306 (BIA 2000) (en banc). I am happy to announce that all three members of the Round Table of Former Immigration Judges who participated in that decision disagreed with the majority’s interpretation of acquiescence in separate opinions. See Concurring Opinion of Board Member Gustavo D. Villageliu; Concurring and Dissenting Opinion of BIA Chair Paul W. Schmidt, and Dissenting Opinion of Board Member Lory D. Rosenberg.
  4. Nos. 21-1150, 21-1230; ___ F.4th ___ (1st Cir. Oct. 21, 2022).
  5. J. Bauer, “Obscured by Willful Blindness: States’ Preventive Obligations and the Meaning of Acquiescence Under the Convention Against Torture,” 52 Col. Hum. Rts. L. Rev. 738 (2021).
  6. Id. at 749, fn. 34 (quoting Diaz-Reynoso v. Barr, 968 F.3d 1070, 1089 (9th Cir. 2020) (citing two earlier decisions in agreement); and additionally citing Myrie v. Att’y Gen., 855 F.3d 509, 518 (3d Cir. 2017) (similar statement).
  7. Id. at 750.
  8. The Round Table expresses its appreciation to attorneys Adam Gershenson, Zachary Sisko, Marc Suskin, Valeria M. Pelet del Toro, and Samantha Kirby of Cooley LLP for expressing our arguments so articulately in their brief on our behalf. Our brief can be read here.
  9. For an overview of this topic in the asylum context, see my 2018 blog post on 3rd-Generation Gangs and Political Asylum.
  10. For persuasive presentations of the de facto state actor argument, see Deborah E. Anker, Law of Asylum in the United States (Thomsen Reuters) at § 4:9; and Anna Welch and SangYeob Kim. “Non-State Actors ‘Under Color of Law’: Closing a Gap in Protection Under the Convention Against Torture,” 35 Harvard Hum. Rts. J. 117 (2022).
  11. The Second Circuit case cited to was De La Rosa v. Holder, 598 F.3d 103, 110-111 (2d Cir. 2010) (holding that the preventative measures of some government actors does not foreclose the possibility of government acquiescence).
  12. My sincere thanks to Jon Bauer and SangYeob Kim, who provided valuable input in reviewing this article.

NOVEMBER 17, 2022

Republished by permission.

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I’m proud to say that, as kindly noted by “Sir Jeffrey” in FN 3, Round Table ⚔️🛡 members, Judge Gustavo D. Villageliu, Judge Lory D. Rosenberg, and I, each filed separate opinions distancing ourselves from various aspects of our majority colleagues’ specious, and eventually proved to be wrong, views in Matter of S-V-, 22 I & N Dec. 1306 (BIA 2000) (en banc). My BIA colleagues Judge John Guendelsberger and Judge Anthony C. Moscato also joined my separate opinion, in addition to Judges Villageliu and Rosenberg.

As a hint to what’s wrong with this politically-biased “charade of a court,” operating within a prosecutorial agency, I note that all of us except Judge Moscato were ultimately “exiled” from the BIA by John Ashcroft. Our “offense” was doing our jobs by standing up in dissenting opinions for correct interpretations of law and the legal and constitutional rights of migrants in the context of a “go along to get along” BIA majority who too often chose job security over justice for the individuals coming before us.

That a number of our dissents, particularly Judge Rosenberg’s, were prescient as to what Federal Circuit Courts and the Supremes would hold, and also predicted some of their vociferous criticisms of EOIR’s poor performance under Ashcroft, are also telling of the lack of legitimacy and impartiality that Ashcroft ushered in. That has continued to plague EOIR over subsequent Administrations of both parties, including the present Administration.

In my conclusion, I highlight the majority’s unseemly haste to “get to no, with the interpretation least favorable to the respondent.”

The issue whether the respondent’s situation fits within Article 3 of the Convention Against Torture requires factual determinations about conditions in Colombia and the respondent’s own situation considered in the con- text of international legal principles. We have little United States jurisprudence to guide us in this area. Before deciding such important and potentially far-reaching issues, we should have a fully developed record and the benefit of the Immigration Judge’s informed ruling on the positions of the parties.

The respondent has established a reasonable likelihood of success on the merits so as to make it worthwhile to develop the issues at a hearing under Matter of L-O-G-, supra. His motion to reopen and remand should therefore be granted. Consequently, I respectfully dissent from the decision to deny the motion.

Over the years, the pro-government/anti-immigrant bias and “haste makes waste gimmicking” has progressively gotten worse at the BIA, culminating in the disgraceful “packing” of the BIA with notorious asylum deniers and “hard liners” during the Trump Administration. 

Poll human rights experts on how many of the Trump holdover BIA judges would be considered “leading asylum experts?” How many have ever represented an asylum seeker in Immigration Court? So, why would this body have a “stranglehold” over American asylum law and be given deference by the Article IIIs to boot?

One would have expected Garland to address this obviously unacceptable situation on an urgent basis by reassigning most holdover BIA Appellate Judges and replacing them with real, expert judges from the deep private sector talent pool. EOIR needs qualified appellate jurists who will correct the many mistakes of the past, change the one-sided, overwhelmingly anti-immigrant and often misleading “precedential guidance,” enforce some consistency, eliminate disreputable “asylum free zones” pretending to be “courts,” and lead EOIR (and indeed the entire Federal Judiciary) into high-quality, best-scholarship, 21st century jurisprudence. 

That means a body of scholarly, practical, transparent precedents that properly guide and advise Immigration Judges on the correct and efficient adjudication of many cases stuck in this dysfunctional system where individuals deserve to win. Instead, Garland has allowed EOIR to continue its downward spiral with sloppy work, bad decisions, and incompetent judicial administration in a system where all of these problems are potentially life threatening. Not surprisingly, this failure to fundamentally reform and improve EOIR has also led Garland to increase the backlog to a jaw-dropping almost two million cases.

Lack of judicial excellence, grotesque inconsistencies, worst practices, and administrative incompetence have also unfairly, unprofessionally, and unnecessarily increased the difficulty and already sky-high stress levels for immigration practitioners, many serving the system in a pro bono or low bono capacity. With lack of adequate immigration representation one of the festering problems undermining our entire American justice system, Garland’s poor stewardship over EOIR can (charitably) be described as totally unacceptable.

So, in answer to Jeffrey’s question as to why after 22 years legally  wrong precedents still rule at EOIR and correct guidance remains elusive, I have the answer. Because, Merrick Garland has ignored the advice of experts and failed to make achievable, long-overdue reforms and critical upgrading of judicial quality at EOIR. 

That’s a growing cancer on our justice system that won’t be cured without better, due-process-dedicated, leadership — at all levels!

🇺🇸 Due Process Forever!

PWS

11-19-22

Related posts:

  1. 🛡⚔️👍🏼“SIR JEFFREY” CHASE — Garland’s Immigration “Judges” Pull The Ol’ “Bait & Switch” — They Only Are “Judges” When “OIL” Is Trying To Convince Ethically & Legally Challenged Article III Courts To “Defer” To EOIR Decisions — Otherwise, They Are Expected To Act Like DOJ ”Grundoons” Mindlessly Carrying Out The Executive’s Agenda Cloaked In Quasi-Judicial Disguise!
  2. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  3. ☹️👎🏽BUMBLING BIA BADLY BUNGLES BASICS, AGAIN! — Applies Wrong Standard In Seeking To Reverse Valid CAT Grant — Obviously Frustrated 3rd Cir. Reinstates IJ Decision Following BIA’s Inept Attempt @ Appellate  Review! — Arreaga Bravo v. A.G.
  4. ☹️HE BEAT THE GOVERNMENT TWICE IN COURT — But, After Three Years In Jail Without Being Charged With Any Crime, Omar Ameen Still Can’t Get A Bond From Garland’s Courts —  How Can A System Where The Prosecutor Makes The Rules & Picks The Judges, Mostly From The Ranks Of Former Prosecutors, Provide The “Fair & Impartial Judging” Required By Due Process?

ALERT: Judge Sullivan “Reluctantly” Grants DHS Temporary Stay Until Dec. 22, 2022 To Reinstate Rule Of Law For Asylum Seekers!

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/judge-permanently-enjoins-cdc-border-blockade-title-42-as-of-dec-22-2022

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Let’s look at this in perspective. Biden ran in 2020 on a platform of ending Title 42 and restoring asylum processing at the border. Almost two years later, after illegally returning hundreds of thousands of asylum seekers without any process at all, his Administration still lacks a coherent, transparent plan to implement asylum law at the border. This wasn’t “rocket science” as there had been an operating asylum system at the border for approximately four decades, since the enactment of the  Refugee Act of 1980, until Trump illegally ended it.

After more than a year of dawdling, the Administration eventually, reluctantly, set a May 23, 2022 date to “lift” the illegal Title 42 “blockade,” giving GOP nativists more than ample time to block it.

In the meantime, they squandered time, money, and goodwill thinking of ways to actually extend the illegal removals. Their “defense” of  lifting Title 42 was, predictably, half-hearted and inept. Not surprisingly, they were enjoined by nativist right wing judges. Reportedly, many Administration officials breathed a “sigh of relief” that the GOP nativists and their “wholly owned judges” had “bailed them out” from having to actually restore the asylum system and make good on their campaign promises.

Now, another six months have gone by. Garland and Mayorkas still are “not ready for prime time.” Sounds like they thought their “regime of illegal returns” would last forever!

Casts doubt on the good faith of their claim that they wanted to end Title 42 in the first place. Almost all Administrations, once in office, get enamored of the idea that “because it’s only immigrants” they don’t have to treat them as humans. What’s another month of law violations after two years and hundreds of thousands of human rights abuses?

I have little confidence that there will be a functional, due process compliant, asylum system on Dec. 22 at the border. I’m not aware that DHS and EOIR even have the properly trained qualified personnel to correctly and efficiently apply asylum law. There is no known plan for working with the pro bono bar to insure representation and prioritize the many potentially grantable cases.

There is certainly a mind-boggling “leadership void” at both DHS and DOJ on refugee, asylum, and human rights issues. The ill-advised “gimmicks” and “corner-cutting” that Garland and Mayorkas have substituted for competence and expertise in “recently arrived” asylum cases have resulted in elevated denials, hindered representation, and alienated the pro bono bar and human rights NGOs. The latter have far more expertise in asylum law and better ideas on how to efficiently and fairly process refugees and asylees than anyone at either DHS or EOIR. Yet, the experts have intentionally been “frozen out” of the decision-making process.

Additionally, and stunningly, Garland has gone out of his way to alienate and demoralize the already stressed and overextended immigration bar with a insane dose of  “Aimless Docket Reshuffling.” Setting “D-Day” for reinstating the law, three days before the Christmas holiday, also seems highly problematic. What could possibly go wrong with a system run by politicos who have spent two years avoiding providing fair hearings to asylum seekers?

In the vacuum created by the Biden Administration’s incompetence and lack of leadership, racist GOP governors have taken control of “asylum resettlement” and conducted it in ways calculated to cause the most disruption, cruelty, and suffering for the political pawns (actually humans) that Biden has abandoned.

This does not sound like a “dressed for success” plan to restore a fair and efficient asylum system. But, after two years of adapting and using clearly illegal methods instead of competently handling human rights issues, the Biden group has gotten very used to  “programmed failure” and shifting the blame to Trump (out of office since Jan. 20, 2021), the hapless victims, and their lawyers.

I hope I’m wrong. But, I strongly suspect that it’s going to take more than Judge Sullivan’s order to end the disingenuous “Miller Lite” approach to immigration within the Biden Administration and usher in an era of expertise, competence, integrity, and courage in addressing human rights.

🇺🇸Due Process Forever!

PWS

11-18-22

 

 

Related posts:

  1. ☠️🤯🤮🚫 AFTER WINNING YEARS-LONG BATTLE TO STOP ILLEGAL REFUGEE REMOVALS BY TRUMP & BIDEN, WEARY HUMAN RIGHTS ADVOCATES FACE DAUNTING NEW CHALLENGE: Garland’s Dysfunctional Due-Process-Denying “Courts” — Key Empirical Info Lacking, But We Do Know One Important Thing: Garland’s Latest Docket “Gimmick” — Time Limits — Sharply Reduces Chances Of Success, From Probable Grant (52%) To Likely Denial! — Quality Control & Grotesque Inconsistencies Remain Unaddressed In Dem AG’s “Race To Deny” Legal Protection!🤮
  2. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  3. ⚖️👎🏽🤮☠️HUMAN RIGHTS GROUPS BLAST BIDEN, HARRIS, GARLAND, MAYORKAS FOR ILLEGAL RETURNS TO COLOMBIA, CONTINUATION OF MILLER’S XENOPHOBIC, DEADLY & CORRUPT TITLE 42 ABUSES OF HUMANITY!
  4. ICRC: “Migration is not going to stop. If you try to prevent it or strictly regulate it, people start to pile up at the borders, which is happening in Mexico and other countries.”

☠️🤯🤮🚫 AFTER WINNING YEARS-LONG BATTLE TO STOP ILLEGAL REFUGEE REMOVALS BY TRUMP & BIDEN, WEARY HUMAN RIGHTS ADVOCATES FACE DAUNTING NEW CHALLENGE: Garland’s Dysfunctional Due-Process-Denying “Courts” — Key Empirical Info Lacking, But We Do Know One Important Thing: Garland’s Latest Docket “Gimmick” — Time Limits — Sharply Reduces Chances Of Success, From Probable Grant (52%) To Likely Denial! — Quality Control & Grotesque Inconsistencies Remain Unaddressed In Dem AG’s “Race To Deny” Legal Protection!🤮

Judge Roy Bean
“Judge” Roy Bean (1825-1903)
American Saloon Keeper & “Jurist”
Public Realm
His reputation for “rough justice” in the West would be right at home in the “Asylum Free Zones” of Garland’s EOIR. Bean “was once trying a Mexican on a charge of horse stealing and his charge was the shortest on record: Gentlemen of the Jury, there’s a greaser in the box and a hoss missing. You know your duty, and they did.”

Here’s the latest analysis of Garland’s ongoing abuse of his office from Austin Kocher, PhD, at TRAC:

https://trac.syr.edu/reports/702/

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Alfred E. Neumann
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?”
PHOTO: Wikipedia Commons

If someone NOT Merrick “What Me Worry” Garland (the “Alfred E. Neumann of Biden’s immigration bureaucracy”) took a look at the data, one major thing would jump out! There are likely more than 400,000 refugees entitled to asylum sitting in Garland’s 770,000 case asylum backlog (52% x 770,000). (The asylum backlog at EOIR is a “subset” of Garland’s largely self-inflicted, ever mushrooming, nearly 2 million case EOIR backlog — more judges have produced more backlog, so that’s likely NOT the answer here). 

And, this is in a system currently governed by skewed anti-asylum BIA “precedents” and a chronic “anti-asylum culture” actively encouraged and fed by the Trump Administration. In a properly staffed and functioning court system with qualified, due-process oriented, judges and an expert BIA that enforced some decisional consistency and properly and generously interpreted asylum law, a “grant rate” of 75% or more would be a plausible expectation.

Given the obvious (and I would argue intentional) lack of reliable data on how a legitimate asylum system, one consisting at all levels of judges with well-recognized expertise in asylum law and human rights, and overseen by competent, due-process-oriented judicial administrators, might function, the 75% figure is just an “educated guesstimate.” But, it matches my own personal experience over 13 years on the bench in the (now defunct) Arlington Immigration Court. 

It’s also in line with my recent conversations with the head of one of the largest NGOs in the DMV area involved in meeting busses and counseling those “orbited” from the Southern border by the racist/nativist GOP Govs that Biden, curiously, has chosen to run our domestic refugee resettlement program. This is a person who, unlike Garland, his lieutenants, and most of the other politicos and nativist blowhards participating in the “border travesty,” actually spent years of a career representing individuals in Immigration Court. They estimated that “at least 70%” of the “arriving bus riders” had very viable asylum claims. 

This is a far cry from the nativist, restrictionist myths promoted by both the Trump and Biden Administrations — obviously to cover up their gross human rights violations in knowingly and illegally returning hundreds of thousands of legal refugees to danger zones! Many human rights experts would consider such gross misconduct to be “crimes against humanity.” Consequently, it doesn’t take much imagination to see why self-interested scofflaw officials like Garland, Mayorkas, and White House advisors seek to manipulate the system to keep the asylum grant rates artificially low while eschewing proper, realistically robust use of the overseas refugee program to take the pressure off the border — by acting legally rather than illegally! 

Almost all the EOIR asylum backlog consists of “regular docket” (I use this term lightly with EOIR where “normalcy” is unknown) cases. Those are refugees who have had time to get lawyers, adequately prepare, document their cases, but are stuck in Garland’s chronically dysfunctional system. Consequently, they are “denied by delay” legal immigration status, a chance to get green cards, and to eventually qualify for citizenship. The American economy is denied an important source of legal workers who should be part of our permanent workforce and well on their way to full participation in our political system and society!  

An expert looking at this system would see a “golden opportunity” to move most of the backlogged “easily grantable” asylum cases out of the system with stipulated grants or short hearings (the kind you actually might be able to do 3-4 a day without stepping on anyone’s due-process rights or driving the private bar nuts). These cases would also avoid the BIA’s appellate backlog, as well as eliminating unnecessary workload in the U.S. Circuit Courts (which already have their own inconsistency, rubber stamp, and bias issues in the human rights/racial justice area that seem to be getting worse, not better).

Knocking 400,000+ cases off the backlog wouldn’t completely solve Garland’s 2 million case backlog problem — only a complete “house cleaning” at EOIR, replacing many of the current bureaucrats with competent leaders and expert Immigration Judges well-versed in asylum law, will do that. But, cutting EOIR’s backlog by 20% (and the asylum backlog by over 50%) without stomping on anyone’s rights, while bolstering much-needed legal immigration, and harnessing the strengths of the private/pro bono bar, is nothing to “sneeze at!” That’s particularly true in comparison with Garland’s two years of mindless “designed to fail” gimmicks and astounding mismanagement, which have produced exactly the opposite results!

How bad has Garland’s leadership been at on human rights, due process, and racial justice at DOJ. A number of seasoned asylum practitioners have told me that today’s EOIR, also suffering from a tidal wave of Garland’s  “Aimless Docket Reshuffling” — is actually significantly worse than it was under Trump! That’s right, Garland’s tone-deaf incompetence has exceeded the disorder and systemic unfairness caused by overt xenophobia, anti-asylum bias, misogyny, “dumbing down,” and enforcement-biased “weaponization” of the Sessions/Barr years. 

As for Dr. Kocher’s cogent observation that input from the Immigration Judges who actually decide these cases is a “missing ingredient,” good luck with that, my friend! Perhaps understandably in light of his unseemly failures at EOIR, Garland has taken EOIR’s traditional opaqueness and “muzzling” of Immigration Judges to new heights — even barring their participation in CLE events aimed at improving the level of practice before his courts.

Apparently, “studied incompetence” in a Democratic Administration can be even worse than the “malicious incompetence” of the Trump Kakistocracy — at least where immigrants rights/human rights/racial justice/ women’s rights are concerned at EOIR. That’s an astounding observation! One that I actually never thought I’d hear from practitioners! 

The only way for human rights and racial justice experts and advocates to “communicate” with Garland in his “ivory tower” is to ‘“sue his tail” in court! Judge Sullivan’s recent opinion finding Title 42 illegal incorporates the very facts and law used by human rights experts and advocates in years of fruitless pleading and begging Garland to “cease and desist” his support for unlawful conduct and “just follow the law.” The latter seems like a modest “no-brainer” request to a guy once nominated by an Dem President for the Supremes.  

Waiting for Merrick Garland to fix the mess at EOIR to provide even a bare minimum of due process and rational administration is like waiting for the guy pictured below. Frustrated and “Garland-weary” as they might be, human rights advocates should take it to heart and act accordingly!

Waiting for Godot
Waiting for Merrick Garland and his “clueless crew” at DOJ to fix the dysfunctional Immigration Courts will be an exercise in futility. He only pays attention when ordered by a Federal Judge, which, somewhat ironically, he used to be. But, he’s proven “beyond a reasonable doubt” that he is unqualified to run one of the most important and life-determining Federal Judiciaries — one where due process has been buried beneath an avalanche of expediency, incompetency, intellectual dishonesty, and dumb gimmicks. When will “enough be enough?”
https://creativecommons.org/licenses/by-sa/3.0

🇺🇸 Due Process Forever!

PWS

11-17-22

Related posts:

  1. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!
  2. 👍🏼⚖️🗽MAJORITY OF ASYLUM SEEKERS WIN THEIR CASES, EVEN IN A BROKEN & BIASED  SYSTEM INTENTIONALLY STACKED AGAINST THEM — But, Only, If They Can Get To A “Merits Adjudication!” — Nativist Lies, Myths, Driving USG Policies Exposed! — Why USCIS & EOIR Self-Created Backlogs Primarily Shaft Those Deserving Legal Protection Of Some Type!
  3. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  4. ICRC: “Migration is not going to stop. If you try to prevent it or strictly regulate it, people start to pile up at the borders, which is happening in Mexico and other countries.”

🇺🇸⚖️ “BEST INTERESTS OF THE CHILD” IS A WIDELY-ACCEPTED EMPIRICALLY- SUPPORTED CONCEPT OF AMERICAN LAW — BUT NOT @  GARLAND’S DYSFUNCTIONAL EOIR! — The “Gang of 4,” Lory, Rekha, Sue, & I, With “Practical Scholarship” On How & Why To Argue For 21st Century Jurisprudence In A System Too-Often Wedded To The Past!

Lory Rosenberg
Hon. Lory Diana Rosenberg
Senior Advisor
Immigrant Defenders Law Group, PLLC
Rekha Aharma-Crawford
Rekha Sharma-Crawford ESQUIRE
Partner and Co-Founder Sharma-Crawford Law
Kansas City, KS
Hon. Susan G. Roy
Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges
Me
Me

Here it is “Time for a Child Welfare Approach to Cancellation of Removal:”

https://lnkd.in/gaDgHRD8

pastedGraphic.png

19110103h (1).pdf

drive.google.com

***************************************************

So honored to collaborate with my colleagues Lory, Sue, and Rekha on this. Grateful to AILA for publishing. This resulted from lively conversations and brainstorming when we served as faculty at the Immigration Trial College sponsored by Rekha’s firm in Kansas City in April 2022!

We all hope that this “practical scholarship” will give ideas to practitioners on how to argue for a “child centered approach.” That the BIA is one of the American authorities NOT following this better approach, supported by compelling empirical evidence, is a testament to how badly broken and in desperately needing reform our Immigration Courts are today. They aren’t going to change on their own. So, start arguing for a better approach, now!

There’s also some “insider BIA history” in here from those of us “expelled” for our aggressive, progressive judicial views on due process, fundamental fairness, and best practices! Namely, Lory and me!

🇺🇸Due Process Forever!

😎🗽⚖️👍🏼

PWS

11-16-22

Related posts:

  1. THE TRUTH IS OUT, THANKS TO MICHELLE MENDEZ @ CLINIC: Practice Pointers on Matter of Castillo-Perez & “Takeaways” From FOIA Trove On In Absentias!
  2. 🏴‍☠️🤡SLOPPINESS, POOR ANALYSIS, MISCONSTRUING RECORD, CONTEMPT FOR COURTS CONTINUE TO PLAGUE BIA’S DENIAL CULTURE!
  3. 🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!
  4. ⚖️🤯🤮GARLAND’S OHIO JUDICIAL MELTDOWN — “High-Asylum-Denying” Immigration Judges Appointed By Barr & Sessions Remain On Garland’s Bench In Cleveland Despite Referring To Migrants As “Illegals” & “Pretty Virgins!” — EOIR Disciplinary System Remains As Opaque As Ever Under Garland!🏴‍☠️ Yulin Cheng Reports @ Columbus Dispatch!

🇺🇸⚖️🗽👩🏻‍⚖️ ROUND TABLE WEIGHS IN @ SUPREMES ON UNCONSTITUTIONAL VAGUENESS OF “CRIME INVOLVING MORAL TURPITUDE!” — With Lots of Help From Our Friends @ Georgetown Law Appellate Courts Immersion Clinic! — Daye v. Garland

Knightess
Knightess of the Round Table — “Primed and ready to keep fighting dysfunction @ EOIR until due process, fundamental fairness, best practices, and equal justice for all prevail!”

Introduction and Summary of Argument

This brief presents amici’s practical perspective on why the Immigration and Nationality Act’s provision for removal based on a conviction for a “crime involving moral turpitude” is void for vagueness. Section 1227(a)(2)(A) combines the imprecision of the phrase “moral turpitude” with the indeterminacy of applying that phrase to a hypothetical set of facts

1 Counsel of record for all parties received notice of amici’s intent to file this brief at least ten days before its due date. The parties have consented to this filing. No counsel for a party authored this brief in whole or in part, and no person other than amici or their counsel made a monetary contribution to the preparation or submission of this brief.

 

2

under the categorical approach. The result is a provision so vague that adjudicators cannot agree on how to conduct the inquiry and frequently reach inconsistent results.

The Act charges immigration judges with determining which crimes involve “moral turpitude.” Though the statute provides no definition, in 1951, this Court held that the “language conveys sufficiently definite warning as to the proscribed conduct.” Jordan v. De George, 341 U.S. 223, 231-32 (1951). But time has disproved that understanding. The usual “consistency [that] can be expected to emerge with the accretion of case law,” S.E.R.L. v. Att’y Gen., 894 F.3d 535, 550 (3d Cir. 2018), has not materialized. Indeed, the typical sources of clarity—the Board of Immigration Appeals and the courts of appeals—have produced more questions than answers. Whose morals matter? How should judges discern what those morals are? What course should judges follow when moral views conflict? How do they account for changes in views over time? Immigration judges have no way to know. And the uncertainty that the statute’s vague words create left amici with no guide except their own moral intuitions.

To this ambiguity, add that, under the categorical approach, immigration judges do not evaluate the actual conduct engaged in by the noncitizen before them. Instead, they must assess the moral implications of a theoretical set of facts—the “least culpable” means of committing the crime in question. The hypothetical nature of this mode of analysis exacerbates the underlying vagueness of the statutory phrase “crime involving moral turpitude.”

3

Recently, this Court has struck down statutory provisions that suffered from analogous uncertainty, holding each unconstitutionally vague. See Johnson v. United States, 576 U.S. 591 (2015); Sessions v. Dimaya, 138 S. Ct. 1204 (2018); United States v. Davis, 139 S. Ct. 2319 (2019). Section 1227(a)(2)(A) should suffer the same fate.

The real-world effects of Section 1227(a)(2)(A)’s vagueness confirm this conclusion. Attempts to curtail the provision’s arbitrariness by articulating standards have failed. The Board and the courts of appeals have repeatedly but unsuccessfully tried to craft a workable set of rules for identifying which crimes involve moral turpitude. Their efforts have instead produced a series of non-dispositive, ad hoc tests that generate inconsistent and arbitrary results. Confusion abounds in immigration courts and in Article III courts alike, with widespread disagreement over whether a given crime involves moral turpitude. Among other unexplainable outcomes, the courts of appeals part ways on whether crimes such as making a terroristic threat or deceptively using a social security number involve moral turpitude. Amici were required to sort through this morass, unsure of which of the growing list of ad hoc tests applied or how to deal with the conflicting results. Their experiences confirm that the phrase “moral turpitude” is too vague to govern the “particularly severe ‘penalty’” of removal. Padilla v. Kentucky, 559 U.S. 356, 365 (2010) (quoting Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893)).

For these reasons, this Court should grant review and reverse.

Read the complete brief here:

Daye Amicus Brief To File 11.14.22

*********************************

For over 70 years, Federal Judges from the Supremes on down have turned a “blind eye” to our Constitution and substituted their subjective views on morality and immigrants for the rule of law. Our Round Table says it’s high time to stop! ⚔️🛡

Madeline Meth
Madeline Meth ESQUIRE
Deputy Director and Staff Attorney – Georgetown Law Appellate Courts Immersion Clinic
PHOTO: Linkedin — “She’s training tomorrow’s lawyers to fix today’s failing courts!“

Thanks again to the superstars Esthena L. Barlow, Brian Wolfman, Counsel of Record Madeline Meth, and the rest of the “Youth Brigade of the NDPA” over @ Georgetown Law!

🇺🇸 Due Process Forever!

PWS

11-16-22

Related posts:

  1. ☹️HE BEAT THE GOVERNMENT TWICE IN COURT — But, After Three Years In Jail Without Being Charged With Any Crime, Omar Ameen Still Can’t Get A Bond From Garland’s Courts —  How Can A System Where The Prosecutor Makes The Rules & Picks The Judges, Mostly From The Ranks Of Former Prosecutors, Provide The “Fair & Impartial Judging” Required By Due Process?
  2. 🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!
  3. CIMT: PRACTICAL SCHOLAR “SIR JEFFREY” CHASE ⚔️🛡 EXPLAINS HOW A “SUPREME CONSTITUTIONAL TANK” FROM 71 YEARS AGO CONTINUES TO SCREW 🔩 IMMIGRANTS!
  4. 🎊🎉🍾THE GIBSON REPORT IS BACK!😎😎😎 — 03-07-22 — Congrats To NDPA Stalwart 🗽 Liz Gibson On Her New Job As Managing Attorney @ National Immigrant Justice Center!  

⚖️🗽👍🏼👨🏾‍⚖️ BREAKING: US DISTRICT JUDGE EMMET G. SULLIVAN VACATES USG’S TITLE 42 ABUSE, ORDERS BIDEN ADMINISTRATION TO ENFORCE ASYLUM LAW! — Refuses Stay — Rips Knowingly Illegal & Life Threatening Actions By Corrupt Officials Of Both Administrations!  — Fraudulent Public Health “Pretext” Finally Exposed!

Hon. Emmet G. Sullivan
Hon. Emmet G. Sullivan
US District Judge
DC

https://www.washingtonpost.com/national-security/2022/11/15/border-ruling-title-42/

By Maria Sacchetti and Spencer S. Hsu

November 15, 2022 at 4:46 p.m. ET

A federal judge on Tuesday struck down a Donald Trump-era policy used by U.S. border officials to quickly expel migrants because of the covid pandemic, saying the ban had little proven benefit to public health even as it shunted migrants to dangerous places.

U.S. District Judge Emmet G. Sullivan in the District of Columbia vacated the order known as Title 42, effectively restoring asylum seekers’ access to the borders for the first time since the Trump administration issued it during the earliest days of the pandemic.

The decision — which takes effect immediately — knocks down one of the last remaining barriers to asylum from the Trump administration, advocates for immigrants said. It also poses an immediate logistical challenge for the Biden administration after two consecutive years of record apprehensions on the U.S.-Mexico border, with the possibility that the numbers could grow.

Biden officials have long worried about a mass rush to the border creating an emergency similar to the one that occurred in Del Rio, Texas, in Sept. 2021, when thousands of migrants crossed illegally and overwhelmed U.S. agents, creating a squalid camp on the banks of the Rio Grande that embarrassed the Biden administration.

Sullivan’s ruling also comes days after top border official Chris Magnus resigned under pressure after clashing with Homeland Security Secretary Alejandro Mayorkas.

The Justice Department and the Department of Homeland Security had no immediate response to the ruling.

The American Civil Liberties Union, one of the organizations that brought the lawsuit on behalf of migrants, said Sullivan’s decision to vacate the Title 42 policy means the policy ends for all migrants, including families and adults traveling without children.

“Title 42 unfortunately had a long shelf life but has finally been ended, and that will mean enormous relief to desperate asylum seekers,” said ACLU lawyer Lee Gelernt.

Sullivan also made clear that that he would not stay his order pending appeal, leaving it to a higher court to do so if the Biden administration sought more time to address the ruling. 

. . . .

Key Quote: 

Sullivan wrote that the federal officials knew the order “would likely expel migrants to locations with a ‘high probability’ of ‘persecution, torture, violent assaults, or rape’ ” — and did so anyway.

“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals,” Sullivan wrote. “It is undisputed that the impact on migrants was indeed dire.”

***************

The horrific consequences for lawful asylum seekers subjected to this unlawful policy have indeed been “dire:” rape, assault, kidnapping, beating, torture, extortion, starvation, illness, sickness, death, family separation, despair, to name a few. 

By contrast, there have been NO consequences for Stephen Miller and the other Trump Administration officials who fabricated and directed this ruse on the justice system and attack on humanity and the rule of law! Nor have there been any consequences for lower level officials who “went along to get along” with what they knew or should have known to be deadly abuses of our laws. 

Additionally, Biden officials who continued to violate the law and even concocted ways of expanding its illegal and immoral use have escaped accountability and continue in their jobs. DOJ lawyers who failed to do “due diligence” and defended a policy based on pretext, misrepresentations of fact, racism, and xenophobia have also continued to operate in the “ethical twilight zone” that normally would have serious professional consequences!

Of course the whole history of the Title 42 charade ☠️🤮has been one of one step forward and three steps back. The corrupt decision-making extends to unqualified right-wing zealots with lifetime sinecures on the Federal Article III bench and to equally corrupt GOP state AG’s for their dishonest scheme to force continued illegal Title 42  expulsions. 

So, despite these “crimes against humanity,” don’t expect that “heads will roll!” Given the current sorry state of our Federal Courts and the DOJ, it’s not certain that Judge Sullivan’s order will actually have effect or that asylum seekers will ever get the fundamentally fair and humane treatment to which they are entitled.

But, I am certain that this will eventually go down in history as one of the most disgraceful intentional abrogations of law, with the most drastic consequences for humanity and our nation’s reputation, in 21st Century legal history!

It’s also worthy of note that rather than getting the asylum system properly staffed and trained, bringing in Immigration Judges with the required expertise, installing a BIA of expert judges capable of issuing correct, realistic, generous, practical asylum precedents, working cooperatively with the private bar to facilitate representation, and developing an orderly process for resettlement (away from the border) of asylum applicants who pass credible fear, Garland, Mayorkas, and a White House officials have dithered away two years of time without getting the necessary robust, fair, expert, efficient, timely asylum adjudication system up and running!

The advice and pleas of experts and advocates have been “tuned out” or ignored by those in charge! Now, as all of us predicted, the “chickens have come home to roost” for the Administration’s indifferent, incompetent, and lackadaisical  approach to the biggest racial justice and human rights crisis facing our nation.

Thanks Judge Sullivan! Thanks ACLU! Apologies to the hundreds of thousands of asylum seekers wronged by the cowardly failure of America to uphold our laws, Constitution, and international obligations — that “subset” of victims who are still alive despite our Government’s grotesque misconduct!

🇺🇸 Due Process Forever!

PWS

11-15-22

Related posts:

  1. CORRUPT, CHILD ABUSING, RACIST IMMIGRATION BUREAUCRACY 🏴‍☠️☠️🤮⚰️👎🏻 MUST BE REPLACED WITH PROFESSIONAL WORKFORCE COMMITTED TO DUE PROCESS, RULE OF LAW, HUMAN DIGNITY! — “CRUELTY TO migrant children, a trademark of the Trump administration’s immigration policy, did not cease when officials reversed course in the face of public outrage two years ago and stopped wrenching toddlers, tweens and teens from their parents — with no plan or process to reunite them. It has continued apace under cover of the pandemic . . . .”
  2. 🇺🇸⚖️🗽HON. JEFFREY S. CHASE: UNETHICAL, 🏴‍☠️WHITE NATIONALIST,⚰️ MISOGYNIST 🤮“WAR CRIMINAL” ☠️JEFFREY ROSEN TAKES COWARDLY🐓 PARTING SHOT AT REFUGEE🦸🏻 WOMEN! — DOJ Clean-Out, 🧹🪠🧻Fumigation, & Restaffing With Ethical Attorneys Can’t Begin Soon Enough!
  3. ICRC: “Migration is not going to stop. If you try to prevent it or strictly regulate it, people start to pile up at the borders, which is happening in Mexico and other countries.”
  4. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!

🤯 “HOW TO SUCCEED IN BUILDING BACKLOG” — Latest BIA Miscue On Retroactivity in 7th Cir. Sure To Generate Re-openings, Remands, & Other Forms Of Backlog Enhancing, Due Process Denying “Aimless Docket Reshuffling!” — Garland’s Inexcusable Mis-Management Of EOIR Is Boiling Over Among Dem Base!

 

From Dan Kowalski @ LexisNexis Immigration Community:

pastedGraphic.png

Daniel M. Kowalski

8 Nov 2022

CA7 on CIMT, Retroactivity: Zaragoza v. Garland

Zaragoza v. Garland

“Dulce Zaragoza, a native and citizen of Mexico and a lawful permanent resident of the United States, pleaded guilty to the Indiana offense of criminal neglect of a dependent after locking her six-year-old son in a closet for six hours. She was sentenced to one year in jail suspended to time served plus 30 days, with the remainder of the sentence to be served on probation. After completing her sentence, she traveled abroad and presented herself for admission when she returned. The Department of Homeland Security (“DHS”) found her inadmissible based on the neglect conviction, which the agency classified as a “crime involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). She was placed in removal proceedings. Zaragoza fought removal on several grounds, with her arguments expanding as the proceedings progressed. Before the immigration judge, she argued that the Indiana neglect offense does not qualify as a crime involving moral turpitude. The judge disagreed and entered a removal order, and Zaragoza appealed to the Board of Immigration Appeals (“BIA” or “the Board”). In the meantime, she petitioned the state court to modify her sentence. Her purpose was to bring herself within the so-called “petty offense” exception to inadmissibility, which is available to first-time offenders sentenced to six months or less. Id. § 1182(a)(2)(A)(ii)(II). The state court obliged and reduced her one-year sentence to 179 days. With that order in hand, Zaragoza argued before the BIA that Indiana’s neglect offense is not a crime involving moral turpitude, and regardless, the petty-offense exception applies. The BIA rejected both arguments, agreeing with the immigration judge that the Indiana offense is categorically a crime involving moral turpitude, and further holding that the sentence-modification order was not effective to establish Zaragoza’s eligibility for the petty-offense exception. For the latter conclusion, the Board relied on a recent decision of the Attorney General declaring that state-court sentence modification orders are effective for immigration purposes only if based on a legal defect in the underlying criminal proceeding. Matter of Thomas & Thompson (“Thomas”), 27 I. & N. Dec. 674, 690 (Att’y Gen. 2019). Zaragoza sought reconsideration, this time adding two more arguments: (1) the phrase “crime involving moral turpitude” is unconstitutionally vague; and (2) the Attorney General’s decision in Thomas is impermissibly retroactive as applied to her. The BIA disagreed on both counts. Zaragoza petitioned for review in this court, reprising the entire array of arguments she presented to the Board. We agree with the BIA’s resolution of all issues but one: applying Thomas in Zaragoza’s case is an impermissibly retroactive application of a new rule. We therefore remand to the BIA for further proceedings consistent with this opinion.”

***********************

Commentary from Kevin A. Gregg, ESQ:

pastedGraphic_1.png

Kevin A. Gregg

• 1st

Partner at Kurzban Kurzban Tetzeli & Pratt P.A. & Host of Immigration Review Podcast

2d • Edited •

2 days ago

Crimmigration attorneys, get your motions ready.

At least in Chicago! Matter of Thomas and Thompson CANNOT be applied retroactively in the Seventh Circuit!

Sentence modifications/clarifications/European vacations obtained pre-T&T and that comply with Matter of Cota Vargas/Song/Estrada must be recognized for immigration purposes!

Also, when will A.G. Garland weigh in on Matter of Thomas and Thompson? The time is now.

*******************

When the BIA starts not with the correct legal concept that retroactivity is disfavored in the law, but rather with “how can we best help DHS Enforcement and/or curry favor and job security from our political ‘handlers’ at DOJ,” “bad things are going to happen.” And, they do, over and over!

There are plenty of well-qualified “practical scholars” out here who understand retroactivity in the immigration context and would get these basic questions right in the first instance without bothering the Courts of Appeals or generating disorder, inconsistency, and unnecessary backlog! Why hasn’t Garland recruited them to be the “New and Improved BIA” that would actually be driven by legal expertise, practical scholarship, due process, and fundamental fairness? The latter are qualities that EOIR and DOJ claims it seeks in Immigration Judges. But, it’s not the reality that practitioners too often actually face in todays dysfunctional, inefficient, and hopelessly backlogged EOIR. 

The public and those subject to substandard judging and often dehumanizing treatment by EOIR are suffering — amazingly, now more than ever! When will Garland do his job and reform his courts to conform to due process, fundamental fairness, best interpretations of law, and best practices? 

The latter desirable qualities, actually necessary for any legitimate judiciary, are certainly NOT descriptive of today’s broken EOIR! Garland and his lieutenants might consider themselves “above the fray!” 

But, my already over-stuffed e-mailbox is “lighting up” with EOIR horror stories from experienced, long-time practitioners who are questioning whether they can continue practicing in the hostile, lawless, “no due process,” “no customer service,” “no common sense,” “blame the victim” environment that Garland has allowed to mushroom, and sometimes even encouraged, at EOIR. 

I mentioned the term “Dedicated Docket” at an Executive Session of a major NGO recently. The anger and disgust that it provoked from those actually “doing the job” of fighting for justice in Garland’s broken system was palpable! 

Why is a Democratic Administration that is, despite beating expectations in the midterms, still hanging on by a thread, inflicting this type of disrespect, pain, and suffering on its own loyal supporters? How will this self-created legal, Constitutional, human rights disaster play out moving toward 2024!

“The EOIR HQ Tower” needs a complete shake-up and replacement of  those who have demonstrated their inability to get the job done with those who can! The latter are out here. But, the worse Garland lets his system get, the harder and most costly (dollars and lives) it will be to fix it!

🇺🇸 Due Process Forever!

PWS

11-11-22

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. 🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!
  3. ⚖️🗽🇺🇸🦸‍♂️ NDPA SUPERLITIGATOR RAED GONZALEZ DRUBS GARLAND AGAIN! — “Who else could persuade CA5 to agree with CA9, and get an award of costs,” asks Dan Kowalski of LexisNexis Immigration Community? — When will the unconscionable failure of immigrant justice at Garland’s Department of “Justice” finally end? When our nation’s democracy goes down in flames?🔥 ♨️
  4. 🏴‍☠️☠️🤮👎🏻ERROR SUPPLY: EOIR’s Anti-Asylum Bias, Failure To Apply Precedents, Earns Yet Another Rebuke From 3d Cir.  — Blanco v. AG

🆘 ATTN NDPA: THE FUTURE IS NOW! — AS PRACTITIONER ANGER AND FRUSTRATION WITH GARLAND’S DYSFUNCTIONAL “COURTS” BOILS OVER, GETTING YOURSELF “ON THE BENCH” & FORCING RATIONALITY, DUE PROCESS, & FUNDAMENTAL FAIRNESS “FROM THE INSIDE” IS THE BEST, PERHAPS ONLY, OPTION AT PRESENT! — Here Are 10 Chances To do Just That!

Waiting for Godot
Waiting for Merrick Garland and his “Clueless Crew” at DOJ to fix the dysfunctional Immigration Courts will be an exercise in futility.
https://creativecommons.org/licenses/by-sa/3.0

Garland is a disgraceful failure as our nation’s top lawyer; Congress is deadlocked and uninterested in solving immigration and human rights problems; Federal Courts, these days often “stacked” with far-right ideologues, too often look the other way at gross violations of due process, overt racism, misogyny, and bad interpretations as long as it’s “only migrants of color” (“non-persons” in the view of some) and their lawyers whose lives are being trashed. At best, the Circuits provide widely inconsistent review and results — perhaps not quite as bad as EOIR, but still far beyond anything that would be acceptable if migrants were actually treated as “persons” as the Constitution clearly provides.

I receive some desperate anecdotal complaints about the absurdly broken system and unprofessional conduct by some IJs and EOIR officials here at “Courtside.”

Here’s a recent one from a long-time practitioner that more or less sums up Garland and the Biden Administration’s incredibly disreputable mal-administration of EOIR:

Everything at EOIR is such a disgrace. It is now very difficult for me to appear before IJs, as I have complete contempt for the agency. It is so much worse now than when Trump was in charge. But of course, EOIR could care less, and obviously, this IJ could care less as well…

“Much worse now than when Trump was in charge!” Let that sink in folks!

As I’ve said before, “This just isn’t right!” But, we seem to be dealing with three branches of “Government” who have simply turned their collective backs on the Constitution, the rule of law, common sense, and the fundamental obligations of decency that human beings owe to each other. They also deny the truth: That immigrants are and will continue to be an essential part of the fabric of our society. So, many have asked me “What’s the answer?”

Storm the fort “from the inside!” Use your superior knowledge, organizational, and problem solving skills to get on the Immigration Bench and get paid to do things the right way, help force systemic change over time, save some very deserving lives, and help preserve and improve our democracy at the same time. 

One of the few advantages of working in an “out of control” system is this: there isn’t much control. That often motivates sloppy work, corner-cutting, and a “who cares” approach. 

But, it can also motivate and allow those with the skills and moral integrity to “do the right thing,” to put due process first, solve problems (satisfying), and institute “best practices” rather than worst practices in YOUR courtroom, even if only on a case-by-case basis. And, guess what? Things that “work” and efficiently resolve problems in your courtroom do impact the rest of the system! 

Eventually, it can lead to demands to stop doing things the same old wrong and unfair way and start start treating others fairly and with dignity. Surprisingly, despite persistent bureaucratic myths to the contrary, doing things the right way and treating everyone fairly is more efficient than repeating the same old mistakes, based on the same old discredited “deterrence myths,” over and over. Recognizing and timely granting deserving cases is the very best, totally overlooked, way of cutting backlog and forcing the system to be more efficient without stomping on anyone’s rights or humanity!

Sure, the EOIR system only superficially claims to be interested in efficiency. What they really want is the “appearance of efficiency” with the ability to shift blame for problems to the “victims” of their incredibly poor performance! 

But, eventually enough folks in the right places can get the idea that doing things the right way could actually be better for the system than repeating past mistakes and covering up. The latter gets stressful, even for politicos and bureaucrats who have made careers out of avoiding accountability and responsibility. And, there are certainly plenty of those in today’s EOIR and DOJ.

So here are 10 great opportunities to “get on the inside” and start fixing justice in America and the critical “retail level.”

Seven open IJ positions:

Working for the U.S. Department of Justice allows you to make a difference every day through public service. As an immigration judge you provide due process while deciding cases that have immediate impact. Next week, EOIR will announce the opportunity to apply for immigration judge positions. EOIR will post the vacancy announcement to USAJobs and announce it via the IJ Jobs listserv. The announcement will offer opportunities for immigration courts in the following locations:

  1. Adelanto, CA
  2. Concord, CA
  3. Imperial, CA
  4. San Francisco, CA
  5. LaSalle, LA
  6. Boston (Lowell), MA
  7. El Paso, TX

If you would like to learn more about qualifications and the process for becoming an immigration judge, please visit our informational page.

 

Here are three Assistant Chief Judge (“ACIJ”) positions:

https://www.justice.gov/legal-careers/job/assistant-chief-immigration-judge-10

It is REALLY important that great attorneys of all genders and ethnic groups apply for these important positions. EOIR has NEVER been representative of either the communities it serves or the talent and diversity of the private immigration/human rights bar. The “bureaucratic excuse” has been that the “pool” of USG applicants, particularly those from DHS and prosecutorial backgrounds, is always far “superior.” 

I call BS! But, the only way to “prove it wrong” is if “the best and brightest” from the private sectors apply en masse. 

EOIR will NOT improve voluntarily. Over the past two disgraceful years, Garland has proved that “beyond a reasonable doubt.” So, get on the inside and start changing this system to promote impeccable scholarship, due process, fundamental fairness, and best practices from the inside and from “the bottom up!”

Because, waiting for Merrick Garland and his “clueless” crew @ DOJ and EOIR to get the job done for equal justice and racial justice in America will be like “Waiting for Godot.” And, we all know how that turns out. 

Apply now! Ask questions later!

🇺🇸Due Process Forever!

PWS

11-10-22

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️CAMILLE J.  MACKLER @ JUST SECURITY “GETS IT!” — How Come Judge Garland & The Biden Administration Don’t? — “If we want to re-build a better, stronger immigration system, we need to start with immigration courts.” — Get Involved! Get Angry! Say No To Institutionalized Racism, Misogyny, & Dehumanization (“Dred Scottification”) @ EOIR! Force Judge Garland To Pay Attention! Demand Change, Now!
  2. AS TOTALLY DYSFUNCTIONAL IMMIGRATION COURTS 👎🏽 CONTINUE THEIR DESCENT INTO THE ABYSS, 80 EXPERTS AND ORGANIZATIONS ASK GARLAND TO UNDO BARR’S ILLEGAL “BANISHMENT” OF THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES (“NAIJ”)🧑🏽‍⚖️
  3. 🏴‍☠️👎🏽🤮 AIMLESS DOCKET RESHUFFLING (“ADR”) ON STEROIDS! — EOIR Dysfunction Shows What Happens When “Captive Court System” Kowtows To Political Handlers Rather Than Serving The Public! — Jason Dzubow, The Asylumist, Reports!
  4. POWER FAILURE @ GARLAND’S DOJ THREATENS LIVES, WASTES MONEY, ENDANGERS BIDEN’S SOCIAL JUSTICE AGENDA, TURNS ALLIES INTO OPPONENTS! — NBC News “Gets It!” — Why Doesn’t Judge Garland? — Unqualified Trump/Miller “Burrower” Carl C. Risch Draws Fat Salary From Judge G. @ EOIR As Asylum Seekers, Battered Women, People Of Color Continue To Be Abused In His “Star Chambers!” — Outrage At Garland’s Lousy Performance On EOIR Reform Grows Among Members Of The Due Process Army!

☠️🪦🏴‍☠️ AMERICA’S BORDER “POLICY:” PASS MORE BODY BAGS, PLEASE! — Cynical GOP Lies, Bumbling Dems, Bad Righty Judges, Deadlocked Congress, Public Indifference To Human Suffering & Reality Prove A Deadly Concoction For Legal Asylum Seekers!

Body Bag
Body Bag
Not a solution to the reality of human migration.
Official USG Photo
Public Realm
Alexandra Villarreal
Alexandra Villarreal
Immigration Reporter
The Guardian

https://www.theguardian.com/cities/2022/nov/06/us-mexico-border-body-bags-pile-up?CMP=Share_iOSApp_Other

Alexandra Villarreal reports for The Guardian:

. . . .

Along the 2,000-mile (3,219km) boundary between the US and Mexico, the 2022 fiscal year proved the deadliest on record for people trying to make unauthorized crossings of this heavily patrolled international line.

In just 12 months, more than 800 migrants lost their lives in search of a better one as they disappeared beneath the tumultuous waters of the Rio Grande, succumbed to blistering summer heat, crashed in a smuggler’s vehicle, tumbled from a border barrier, or otherwise had their travels violently cut short.

In Eagle Pass’s regional enforcement sector alone, border patrol agents discovered more than 200 dead migrants between October 2021 and the end of July, compared to an already heartbreaking 34 bodies during the entire 2020 fiscal year.

Ahead of this week’s crucial midterm elections, Republicans have manipulated these harrowing statistics as yet another opportunity to make much ado about what various rightwing players call Joe Biden’s “open border policies”, accusing his administration of incompetence that is causing “body bags [to] keep piling up”.

It’s close to sealed by a hostile combination of pandemic-era public health measures cynically retooled as federal immigration control and mass policing by state troops who arrest, jail and criminalize migrants.

Cruelly, these hardline deterrence mechanisms advanced by both Democrats and Republicans have probably only made the US’s south-west border bloodier.

Current US policy is predicated on a false assumption that if only the consequences for crossing the south-west border are severe enough, people will stop trying.

For decades, presidential administrations with disparate political views have unified under the paradigm of prevention through deterrence, erecting physical and legal obstacles to discourage people from crossing.

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Deterrence as a strategy has informed some of the US’s most controversial immigration policies, from separating families, to detaining children, to stranding asylum seekers in dangerous Mexican border towns.

But desperate people still find ways to make it on to US soil: last fiscal year, Customs and Border Protection documented nearly 2.38m enforcement encounters at the southern border, a record high causing headaches for Biden as conservatives accuse the president of being “lax” on border crime.

The truth is more complex, and not at all lax. More than a million of last fiscal year’s border enforcement encounters were processed under Title 42, now invoked as a federal immigration enforcement tool but originally disguised as a public health measure amid the Covid-19 pandemic.

The policy allowed the Trump and now the Biden administrations to expel huge numbers of people from the US without even letting them ask for asylum, seemingly in violation of domestic and international law.

Far from ending unauthorized migration, the invocation of Title 42 has in fact dramatically inflated the number of encounters at the US-Mexico border, as people who are expelled feel compelled to cross again – and again, and again. Sometimes, relentless migrants have been so determined to complete their journeys that they have risked life and limb dozens of times, fueling a political and humanitarian disaster.

Yet even though these expulsions have proved ill-advised both optically and ethically, Biden has now expanded the use of Title 42 by adding Venezuelans to the list of nationalities targeted for return to Mexico, an apparent betrayal of his campaign promises to uphold the legal right to seek asylum and a paradox as his administration ostensibly fights to sunset the practice in court.

. . . .

And both parties continue to police people seeking security and opportunity over violence, persecution and poverty as if they’re national security threats.

In the shadow of it all, the corpses amass.

Back in Eagle Pass, locals like Rosalinda Medrano who have lived for decades along a porous border understand that migrants have and will always come or, increasingly, die trying.

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“Even though there’s one fence, and another fence, and so many troopers, and the national guard, and you name it – Border Patrol, here and there and everywhere – it’s not gonna stop these families,” she said, adding simply: “They want a better life.”

**************************

Read the complete article at the link, in which Alexandra points to the numerous achievable solutions that both parties eschew — for political reasons — some cynical, dishonest, and racist (GOP) — others cowardly (Dems). None of what Alexandra reports will come as news to faithful readers of Courtside, or, indeed, to anyone who has taken the time to actually study and reflect on America’s decades of expensive, inhumane, “deterrence policies.”

Fact is, existing law, if correctly applied and administered, offers some obvious ways to start solving the problem:

  • Robust realistic “overseas” refugee programs in the Western Hemisphere — 150,000 would be a modest start — rather than the piddling, restricted numbers now slowly doled out by the Biden Administration.
  • Reopen legal ports of entry to legal asylum seekers, as required by law, to incentivize and reward them for not seeking to cross between ports of entry.
  • Staff the Asylum Office and the Immigration Courts with real experts in asylum law (there are plenty of well-qualified lawyers now in the private sector) who are committed to due process and can rapidly recognize and grant the many meritorious cases. Then, individuals are admitted in legal status, on their way to green cards, rather than aimlessly wandering the US with government-issued packets of misinformation (or no information at all) waiting for hearings that will come either too soon or too late, but never in a reasonable manner and often with incorrect preordained results designed to abuse the legal system as an “enforcement deterrent.” (NOTE: To act as an incentive/reward for appearing at ports of entry, the asylum system must be credible, transparent, and timely — something that no Administration has achieved to date, but which is possible with more vision, leadership, and better personnel making decisions.)
  • Work with, bolster, support, and learn from the many NGOs in the U.S. to insure that asylum seekers are informed of their obligations, represented on their applications, and resettled, mostly away from the borders to areas that need them, in an orderly fashion.
  • Additional huge benefit: Despite the lies and myths spread by nativists, increasing legal immigration (including refugees and asylees) is one of the few potentially effective ways that the “political branches” of Government have to address inflation without causing recession. See, e.g., https://www.businessinsider.com/trump-covid-immigration-makes-inflation-worse-recession-outlook-jobs-supply-2022-10.

“Even though there’s one fence, and another fence, and so many troopers, and the national guard, and you name it – Border Patrol, here and there and everywhere – it’s not gonna stop these families,” she said, adding simply: “They want a better life.”

We can, and must, do better than “more body bags” as a matter of national policy! Migrants aren’t going to stop coming. That, we can’t change in the long run — no matter how many lies, myths, and distortions nativists throw out there, and no matter how fast spineless Dem politicos run from or attempt to hide the truth. But, we can deal with reality in a more humane, practical, realistic manner that will serve our nation’s, and humanity’s, interests into the future.

🇺🇸Due Process Forever!

PWS

11-10-22  

Related posts:

  1. ICRC: “Migration is not going to stop. If you try to prevent it or strictly regulate it, people start to pile up at the borders, which is happening in Mexico and other countries.”
  2. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  3. ⚖️🇺🇸👍🏼🗽DEAN KEVIN JOHNSON’S SUCCINCT RESPONSE TO GREG ABBOTT’S PREDICTABLE SOUTHERN BORDER BS IS WORTH A READ! — PLUS: ARELIS HERNANDEZ OF WASHPOST WITH SOME MUCH-NEEDED TRUTH & PERSPECTIVE FROM THOSE ACTUALLY LIVING ON THE SOUTHERN BORDER: “We need more lawyers and judges, not more troops or technology.”
  4. ⚖️🗽MORE TRUTH ABOUT THE SOUTHERN BORDER FROM ONE OF AMERICA’S 🇺🇸 LEADING HUMAN RIGHTS EXPERTS: “Real Needs, Not Fictitious Crises Account For The Situation at US-Mexico Border,” By Donald Kerwin Center For Migration Studies

⚖️ THE GIBSON REPORT — 11-07-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC — HEADLINERS: Analysts Agree: Immigrants Are “Political Toast” Regardless of Midterms’ Outcome — Neither Party Sees Legal Immigration, Human Rights, Rule of Law, Racial Justice As “Electoral Winners!” — Garland’s DOJ “On A Roll” In Courts Of Appeal, Snuffing Asylum Claims in 2d (2x), 3rd, 8th, & 9th Circuits!

Elizabeth Gibson
Elizabeth Gibson
Managing Attorney
National Immigrant Justice Center
Publisher of “The Gibson Report”

pastedGraphic.png

 

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.

 

CONTENTS (jump to section)

  • NEWS
  • LITIGATION & AGENCY UPDATES
  • RESOURCES
  • EVENTS

NEWS

 

Analysts Don’t Expect Significant Changes in Immigration Policy After the Midterms

VOA: The three analysts said that no one is willing to form a framework to write immigration legislation because they do not see an electoral advantage. See also Democrats Twist and Turn on Immigration as Republicans Attack in Waves; Canada plans record immigration targets amid labour crunch.

 

Attention Travelers: New Rules Will Require More Caution When Entering USA

Forbes: Evidently, USCBP is eliminating the passport entry stamp to streamline the entry process. So now, foreign nationals will only have access to the Form I-94 website as proof of their lawful immigration status.

 

Abrupt New Border Expulsions Split Venezuelan Families

NYT: The decision to expel Venezuelans under a pandemic-era policy that allows swift expulsions, previously applied mainly to Mexicans and Central Americans, has had the unintended effect of trapping many Venezuelan families on opposite sides of the U.S.-Mexico border. See also Tougher US Asylum Laws Trigger Drop in Venezuelan Migrants Traveling Through Panama; Migrants Encounter ‘Chaos and Confusion’ in New York Immigration Courts; Nearly 500 Venezuelans admitted to U.S., thousands approved via new plan.

Accounts of migrants’ documents being confiscated by border officials prompt federal review

CBS: The department confirmed the review when asked to respond to accounts from migrants who told “60 Minutes” that U.S. Customs and Border Protection (CBP) officials along the U.S.-Mexico border kept their documents, despite agency policy instructing agents to return migrants’ personal property unless they are fraudulent.

 

130+ Civil Rights Groups Call On President Biden To Include Immigrants In Pardon Process

NIJC: More than 130 immigration, criminal justice, and civil rights organizations released a letter today urging the Biden administration to include immigrants in the pardon process.

 

Over 100 Orgs Want Visits For Detained Immigrants Restored

Law360: More than 100 immigrant rights organizations are urging the Biden administration to fully reinstate visitation at immigration detention facilities, saying in a Thursday letter that visitation is crucial for detainees’ mental health and monitoring human rights violations.

 

ACLU condemns Texas Border Patrol agents’ use of pepper balls against protesting migrants

SA Current: The ACLU is condemning the actions of U.S. Customs and Border Protection agents allegedly caught on video firing pepper balls at a group of Venezuelan migrants protesting along the banks of the Rio Grande River near El Paso.

 

LITIGATION & AGENCY UPDATES

 

2nd Circ. Won’t Review Honduran Man, Son’s Asylum Request

Law360: The Second Circuit on Wednesday declined to review a decision denying an asylum application from a Honduran man and his son who claim they will be killed by gang members if they return home, finding the Board of Immigration Appeals properly reviewed the immigration judge’s decision.

 

2nd Circ. Won’t Revive Ecuadorian’s Asylum Bid

Law360: The Second Circuit on Tuesday backed the U.S. Board of Immigration Appeal’s decision to apply a persecution motive standard used in asylum requests to an Ecuadorian’s withholding of removal request, saying it was reasonable for the agency to do so.

 

3rd Circ. Nixes Asylum Over Evangelical Christianity Link

Law360: The Third Circuit on Tuesday knocked down a Guatemalan man’s asylum bid after concluding he failed to back up his fears of violence in the Central American nation based on gang recruitment efforts and his rejection of gangs due to his evangelical Christian faith.

 

8th Circ. Denies Family’s Asylum Bid Over Gang Fears

Law360: The Eighth Circuit has upheld a Board of Immigration Appeals ruling that denied a family asylum based on alleged gang threats for lack of evidence that the government of El Salvador could not or would not protect them.

 

9th Circ. Upholds Ruling Denying Bisexual Man Asylum

Law360: A Mexican citizen who said police and criminal gangs would torture him for being bisexual and suffering from mental illness if he is deported a third time

 

9th Circ. Backs Juvenile Immigrant Adjudication Deadline

Law360: The Ninth Circuit on Thursday backed an order requiring U.S. Citizenship and Immigration Services to adjudicate Special Immigrant Juvenile petitions within 180 days, rejecting the government’s argument that a lower court relied on “stale evidence” and disregarded hardship considerations.

 

States Cry Foul Over Steep Drop In Title 42 Haitian Expulsions

Law360: Republican state attorneys general accused the Biden administration of violating an injunction requiring it to repel migrants from the border under pandemic-era restrictions, saying a sharp drop in Haitian expulsions indicated the administration was selectively lifting the so-called Title 42 border block.

 

DHS Begins Limited Implementation of DACA Final Rule

AILA: On 10/31/22, DHS began limited implementation of the DACA final rule. USCIS will continue to accept and process applications for deferred action, work authorization, and advance parole for current DACA recipients. Due to litigation, USCIS will accept but cannot process initial DACA requests.

 

EOIR 30-Day Notice and Request for Comments on Proposed Revisions to Forms EOIR-42A and EOIR-42B

AILA: EOIR 30-day notice and request for comments on proposed revisions to Form EOIR-42A and Form EOIR-42B. Comments are due 12/5/22. (87 FR 66326, 11/3/22)

 

EOIR 30-Day Notice and Request for Comments on Proposed Revisions to Form EOIR-31A

AILA: EOIR 30-day notice-and-comment period for proposed revisions to Form EOIR-31A, which allows an organization to seek accreditation or renewal of accreditation of a non-attorney representative to appear before EOIR and/or DHS. Comments are due by 12/5/22.

 

CIS Ombudsman Introduces Revised Form for Requesting Case Assistance

AILA: The CIS Ombudsman’s Office updated the DHS Form 7001, Request for Case Assistance, used for requesting case assistance.

 

RESOURCES

 

EVENTS

 

 

To sign up for additional NIJC newsletters, visit:  https://immigrantjustice.org/subscribe.

 

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.

 

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

************************************

Supposedly, the main political issues right now are the economy and inflation. But, the economy and inflation are largely determined by the Fed, markets, global conditions, weather, and a certain amount of pure luck — all things beyond the direct control of the political branches of the USG.  

As mentioned by Chuck Todd on last Sunday’s NBC “Meet the Press,” many experts say that the most effective tool that the Administration and Congress have to improve the economy without triggering a recession is to increase legal immigration — sooner rather than later. But, neither party is interested. The GOP sees an anti-immigrant stance as a key to political success. And, the Dems are “actively disinterested” in the issue. So, the opportunity passes.

But, the reality is that, in the long run, no amount of shipping containers, walls, prisons, family separations, deportations, exclusions to death or despair, hate rhetoric, or restrictive legal roadblocks will halt the future flow of human migration, and not incidentally, the internal relocation in America as certain areas become “unlivable.” 

According to a government report published in today’s Washington Post:

 The U.S. can expect more forced migration and displacement

Already, the authors of Monday’s report said, major storms such as Hurricane Maria, as well as extended droughts that strained lives and livelihoods, have led people to leave their homes in search of more-stable places.

In the hotter world that lies ahead, they write, additional climate impacts — along with other factors such as the housing market, job trends and pandemics — are expected to increasingly influence migration patterns.

“More severe wildfires in California, sea level rise in Florida, and more frequent flooding in Texas are expected to displace millions of people, while climate-driven economic changes abroad continue to increase the rate of emigration to the United States,” the report finds.

Such shifts are inherently complicated and fraught.

Several Indigenous tribes in coastal regions, facing fast-rising seas, have already sought government help to relocate, but have struggled to do so without significant hurdles.

“Forced migrations and displacements disrupt social networks, decrease housing security, and exacerbate grief, anxiety and mental health outcomes,” the authors write.

https://www.washingtonpost.com/climate-environment/2022/11/07/cop27-climate-change-report-us/

Neither political party appears serious about addressing these migration realities — already underway. The ideas that we can wall ourselves off, invest in “sending countries,” detain, and deport our way out of migration are not  “solutions.”  

Failure to act boldly and expansively on legal immigration will create a huge class of exploitable, disenfranchised, extralegal residents and plenty of work for border agents, internal police, righty judges, and jailers. It will also be a huge boon to smugglers and cartels who basically will “own” the American migration franchise. But, in the long run, building a large “underground humanity” won’t be enough to offset the “downside” of lacking a robust, realistic, orderly, legal immigration process.

Eventually, those nation-states that figure out how to harness, welcome, and distribute the power of human migration will rule the future. Right now, America’s leaders, of both parties, seem wedded to a “sure to fail” approach of either opposing or ignoring the realities and unlimited potential of human migration. Too bad — for all of us!

🇺🇸 Due Process Forever!

PWS

11-08-22

Related posts:

  1. THE GIBSON REPORT— 01-02-22 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Garland’s Aimless Docket Reshuffling (“ADR”) Squeezes Refugees On Both Ends Of His Ludicrous Backlog, As Those Patiently Waiting Given Court Dates Nearly A Decade In The Future, While Recent Arrivals Mindlessly Rocketed To The “Front Of The Line” Struggle To Find Lawyers & Prepare Cases — Plus Other New Year News From The Dystopian World Of U.S. Immigration!
  2. 🤯👎🏽MORE CIRCUIT REJECTS FOR GARLAND & PRELOGAR — 1st & 3rd Cirs “Just Say No” To DOJ’s Ill-Advised Positions On “Theft Offense” & Derivative Citizenship!  — It’s Part Of A Larger Leadership Failure @ Garland’s Broken DOJ!
  3. ICRC: “Migration is not going to stop. If you try to prevent it or strictly regulate it, people start to pile up at the borders, which is happening in Mexico and other countries.”
  4. ⚖️ THE GIBSON REPORT — Compiled By Elizabeth Gibson, Esquire, Managing Attorney, NIJC: Stephen Miller Was Even More Of A Disreputable Scofflaw! — 9th Halts BIA’s “Rote Formula” For Improperly Denying CAT W/O Meaningful Analysis — EOIR In Louisiana Continues To Be “Death Valley” ☠️⚰️  For Asylum Seekers:  “‘I feel that the big problem we face today is that there is a real dehumanization of the entire process,’ said Mich Gonzalez, Associate Director of Advocacy at the Southern Poverty Law Center.”

⚖️ REPRESENTATION WORKS IN IMMIGRATION COURT: Why Isn’t Garland’s EOIR Promoting & Enabling It Rather Than Engaging In More “Aimless Docket Reshuffling?”

Atenas Burrola Estrada
Atenas Burrola Estrada
Author
American Immigration Council
PHOTO: American immigration council.org

https://immigrationimpact.com/2022/10/27/immigrants-win-cases-pro-bono-justice-campaign/

71% of Immigrants Win Their Cases Thanks to Pro Bono Volunteers with the Immigration Justice Campaign

Posted by Atenas Burrola Estrada | Oct 27, 2022 | Due Process & the Courts, Immigration Courts

Every year at the end of October, legal service providers come together to celebrate Pro Bono Week. It is a dedicated opportunity to acknowledge the amazing work that our volunteers do—work that is the foundation of the American Immigration Council’s Immigration Justice Campaign. In an immigration system that is set up to make it almost impossible for certain groups of people to win, pro bono volunteers are one of the bastions helping overwhelmed legal service providers hold the line for due process and justice.

From the solo practitioner doing pro bono work to learn a new skill, to the corporate law firm partner who has incorporated pro bono as part of their practice for two decades, our volunteers run the gamut. Everyone makes a difference—from the law students interpreting between classes and homework to the community members who volunteer simply because they care. Every single volunteer is integral to the Justice Campaign’s work—and we thank them for their time and dedication.

Since its creation in 2017, the Justice Campaign and our volunteers have walked alongside hundreds of immigrants in their fight for justice and due process in the United States.

This year alone, over 200 Justice Campaign volunteers have:

    • Worked on 221 cases for detained individuals in 14 detention centers across the country.
    • Worked on 335 cases for non-detained individuals across 32 states of residence.
    • Served clients from 30 countries of origin who speak 19 different languages.

And with these volunteers’ help:

    • 71% of clients have won their immigration case.
    • 85% of clients asking for release from detention have won that release from an immigration judge.

Nationally, only 40% of people win their immigration cases, and only 32% win their release from an immigration judge. Those numbers are even lower for people without an attorney. Detained immigrants without an attorney only have about an 11% chance of winning release.

This small example of Justice Campaign clients and volunteers shows the immediate impact that pro bono work has on clients’ lives. Without the dedication of our pro bono volunteers, many of these individuals would have had to move forward alone. Statistically speaking, that means most probably would have lost.

The past several years have been difficult for most of the world in so many ways. And yet, pro bono volunteers continue showing up every day, allowing the Justice Campaign to continue serving clients, help people get out of detention, fight their cases—and for many, win. To the hundreds of volunteers who have worked with the Justice Campaign, this year and every year, thank you. We could not do this work without you.

*************************

This reality bears little resemblance to the myths and false narratives about the impact of representation put out by nativists and parroted by EOIR during the Trump years. Nor does it match the gimmicks and poor planning of the Biden Administration, which continues to operate on the false assumption that the vast majority of asylum cases in Immigration Court will be denials.

While this sample is probably too small to be statistically valid, it certainly supports the view that the current mess at EOIR unjustly leaves behind many asylum seekers and other individuals entitled to relief just because they are unrepresented or poorly represented. It also make them much more likely to remain in detention, costly for both them and the Government.

It would make sense for EOIR and the Biden Administration to work cooperatively with the pro bono and low bono bar to prioritize and increase representation and to then prioritize represented cases that are most likely to result in grants of relief. Those cases are likely to proceed faster (without any due-process-denying “gimmicks”), less likely to be appealed, and would seldom reach the Courts of Appeals. An overall efficient way to use resources.

Additionally, EOIR should be working more closely with VIISTA Villanova and others who have developed “scalable” programs for training accredited representatives to increase quality representation in Immigration Court.

Instead, with yet another round of mindless “Aimless Docket Reshuffling” on steroids, EOIR has instigated an unnecessary and counterproductive “pitched battle” with advocates across America. Go figure!

🇺🇸Due Process Forever!

PWS

11-04-22

Related posts:

  1. THE GIBSON REPORT— 01-02-22 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Garland’s Aimless Docket Reshuffling (“ADR”) Squeezes Refugees On Both Ends Of His Ludicrous Backlog, As Those Patiently Waiting Given Court Dates Nearly A Decade In The Future, While Recent Arrivals Mindlessly Rocketed To The “Front Of The Line” Struggle To Find Lawyers & Prepare Cases — Plus Other New Year News From The Dystopian World Of U.S. Immigration!
  2. 😰ASYLUM: “PROGRAMMED FOR FAILURE” — “Refugee Roulette Three” (“RR3”) Confirm What Many Of Us Said Right Off The Bat About Biden Administration’s Tragically Botched Stab At Asylum Reform!
  3. CATHERINE RAMPELL @ WASHPOST: “Biden has delivered the worst of all worlds: inhumane, immoral, potentially illegal policy — and bad-faith political blowback about “open borders” all the same.”☠️🏴‍☠️🤮🤯👎🏽⚰️🆘
  4. THE GIBSON REPORT — 06-21-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group! — Lots Of Interesting Items Under “Top News,” Some Good, Some Not So Much!

😰 EOIR EARNS “F” FROM DOJ I.G. FOR MISMANAGEMENT OF MULTIMILLION $$ TECHNOLOGY CONTRACT!

 

https://oig.justice.gov/sites/default/files/reports/23-

We found that JMD’s and EOIR’s contracting files did not demonstrate that the acquisition planning team applied well-established techniques to facilitate monitoring and overseeing the contractors’ performance in compliance with the Federal Acquisition Regulation (FAR), DOJ and EOIR policies, or the award terms and conditions.

*******************************************

In simple terms, with well over a million lives at stake and with tens of millions of dollars of taxpayer money on the line, EOIR screwed up! Royally!👑 This report focuses on the period 2017-22, that included the Trump Administration. During that time, the Trump-Era “EOIR Clown Show” 🤡 was busy on such frivolous things as:

  • Developing a list of lies, distortions, and misrepresentations about asylum seekers and their attorneys and putting it out as a bogus (now eradicated without a trace) “fact sheet;”
  • Implementing since-abandoned “production quotas” and wasting money on so-called “IJ Dashboards” to micromanage production;
  • Creating an “Office of Policy” in an agency where such “policy” is largely the responsibility of what is supposed to be a body of independent quasi-judicial adjudicators, the BIA, and which office largely duplicated functions that were being satisfactorily performed by the EOIR Office of General Counsel;
  • Mismanaging the COVID response in the Immigration Courts; 
  • Building record backlogs.

While Garland did eventually push out the Director, Deputy Director, and Chief Immigration Judge, the later position remains vacant and there is no hard evidence that the replacements for Director and Deputy Director are any more qualified than their inept predecessors to lead “America’s worst courts” back to some level of competence and functionality.

And, as has become the “norm” under Garland, there is no firm indication of any accountability or meaningful institutional improvements to insure due process and appropriate expenditure of public funds. 

And, it’s not like things were better before 2017. As the report noted, between 2001 and 2016, EOIR “blew through” $80 million on its so-called “eWorld Adjudication System (eWorld),” without producing a functional product that could be used nationwide! Hence the need to throw even more money at the problem from 2017-22!

🇺🇸Due Process Forever!

PWS

11-02-22

Related posts:

  1. 🤮🆘CHAOS IN COURT!  — Unqualified, Controversial Barr Immigration Judge Quits In SF, Leveling Charges Of Systemic Incompetency @ EOIR HQ — “[I]t is hard to understand how any court system can function like this!” — Actually, It Can’t & Hasn’t Functioned As Anything But A Sick Joke For Years! 🤡🦹🏿‍♂️⚰️ — Garland Slow On The Uptake, As Outrage, Anger At His Inept Stewardship, Lack Of Due Process Leadership, Indifference To Institutionalized Racism Grows In Legal Community! — Tal Kopan Reports @ SF Chron
  2. ⚖️🗽🧑🏽‍⚖️CAMILLE J.  MACKLER @ JUST SECURITY “GETS IT!” — How Come Judge Garland & The Biden Administration Don’t? — “If we want to re-build a better, stronger immigration system, we need to start with immigration courts.” — Get Involved! Get Angry! Say No To Institutionalized Racism, Misogyny, & Dehumanization (“Dred Scottification”) @ EOIR! Force Judge Garland To Pay Attention! Demand Change, Now!
  3. 🏴‍☠️THE PROBLEM @ THE BORDER ISN’T THAT BIDEN HAS  SOFTENED TRUMP’S RACIST, WHITE NATIONALIST, SCOFFLAW RHETORIC! — IT’S THAT BIDEN, GARLAND, & MAYORKAS HAVE FAILED TO RESTORE A ROBUST ASYLUM SYSTEM AT LEGAL PORTS OF ENTRY, STAFFED WITH EXPERT ASYLUM OFFICERS & QUALIFIED IMMIGRATION JUDGES WHO WILL GRANT ASYLUM TO THOSE QUALIFIED, END IDIOTIC TRUMP-ERA MISINTERPRETATIONS & MIS-APPLICATIONS OF ASYLUM LAW, AND ARE DEDICATED TO DUE PROCESS FOR ALL! — Administration’s  Misguided “Trump Lite” Approach Continues To Create Human Misery,☠️⚰️ Trash The Law, 🤮 Without Addressing The Real Problems Generated By Years Of “Malicious Incompetence” 🤡🆘 In U.S. Asylum & Refugee Policies!  — Jack Herrera Reports From The Border For Politico!
  4. 🏴‍☠️👎🏽🤮PARODY OF JUSTICE @ “JUSTICE” — EOIR’s ETHICAL WASTELAND EXPOSED BY FOIA: The Only “Surprise” Here Is Garland’s Failure To “Clean House” @ EOIR, Remove Unethical Lawyers @ DOJ, & Demand Accountability For Ethically Challenged DHS Attorneys!🦨

🤯AMERICA NEEDS IMMIGRANT WORKERS: THE GOP LIES, DENIES, DEHUMANIZES, EXPLOITS — DEMS ARBITRARILY DEPORT POTENTIAL LEGAL IMMIGRANTS WHILE LEAVING OTHERS IN LIMBO WITH BUMBLING BUREAUCRACY & BROKEN COURTS  — “Can’t Anyone Here Play This Game?”

Casey Stengel
“Can’t anyone here play this game?” The GOP lacks honesty and decency. The Dems lack vision and guts. The public is misinformed about the realities of immigration. Migrants and their supporters are caught in the crossfire of political failure! 
PHOTO: Rudi Reit
Creative Commons

Lack of immigration reform hurts businesses and farmers, puts nation’s food supply at risk

https://www.usatoday.com/in-depth/news/politics/elections/2022/10/30/immigration-reform-southern-border-farmers-congress-dreamers-midterms/8189018001/

*************************

Note the comments from immigration lawyer George Pappas in North Carolina.

The hostility is reflected in the immigration courts in Atlanta and in Charlotte, where the highest denial rates for asylum prevail,” he told USA TODAY. “They will not be talking about outsourcing workers or about education. The right wing base of the Republican party has used immigration as a political wedge issue to deflect attention and to deflect media, airwaves, and media space from real issues.

While undoubtedly the Immigration Courts in Atlanta and Charlotte do reflect the type of biased, anti-immigrant approach pushed by GOP politicos, today they are run by Dem AG Merrick Garland. He has failed to make needed reforms and changes at the top, starting with inept leadership from EOIR Headquarters and a precedent setting appellate board (BIA) that does not reflect the best-qualified expert judicial talent available who would implement due process, fundamental fairness, consistency, and best judicial practices nationwide.   

Ironically, these values WERE once part of the “EOIR Vision,” abandoned and trashed by Administrations of both parties over the past two decades. For Dems who believe in the power of immigrants and immigrants’ tights, it’s now basically “Pogoland:” “We have met the enemy, and he is us.”

A number of the public comments in the articles also show gross misconceptions about the nature of migration, the goals of the GOP, the reasons why migrants can’t apply for asylum in a safe, orderly manner at ports of entry, the immense benefits to both the workforce and society brought by family-based immigrants and those seeking to enter as refugees and asylees, and the relationship between an improved economy and a sensible, robust, realistic approach to immigration (eschewed by the GOP; bobbled by the Dems).

Both parties have squandered opportunities to acknowledge truth, make the current system work better, and create order at the border. Neither has a serious plan for reform on its agenda. 

Unlike the Trump “shut the border/build the wall” racist fiasco, Biden’s initial US Citizenship Act of 2021 had some good ideas. But, after quickly “throwing it out there,” apparently as a sop to those who helped elect them, the Administration shoved it in a drawer and forgot about it. Instead, they pursued a mishmash of “built to fail gimmicks,” bureaucratic bungling, broken courts, poor legal positions, lack of vision, inept PR, and weak leadership.

The failure of the world’s leading “nation of immigrants” to discard and disavow the racist nonsense on immigration and come together on realistic, forward looking, generous, welcoming immigration policies makes our nation look bad and robs us of opportunities to improve the economy and build for the future.

🇺🇸Due Process Forever!

PWS

10-31-22

Related posts:

  1. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  2. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  3. 🤯👎🏽MORE CIRCUIT REJECTS FOR GARLAND & PRELOGAR — 1st & 3rd Cirs “Just Say No” To DOJ’s Ill-Advised Positions On “Theft Offense” & Derivative Citizenship!  — It’s Part Of A Larger Leadership Failure @ Garland’s Broken DOJ!
  4. 👍🏼⚖️🗽MAJORITY OF ASYLUM SEEKERS WIN THEIR CASES, EVEN IN A BROKEN & BIASED  SYSTEM INTENTIONALLY STACKED AGAINST THEM — But, Only, If They Can Get To A “Merits Adjudication!” — Nativist Lies, Myths, Driving USG Policies Exposed! — Why USCIS & EOIR Self-Created Backlogs Primarily Shaft Those Deserving Legal Protection Of Some Type!

🤯BILL FRELICK @ THE HILL BLASTS BIDEN’S SCOFFLAW, ELITIST MISTREATMENT OF VENEZUELAN REFUGEES! — Welcome A Few Of The Well-To-Do, Give Others In Need The Screw! 🔩☠️ — Whatever Happened To The Refugee Act of 1980 & The Rule Of Law?

Statue of Liberty
Too many Biden Administration Immigration officials appear to share Stephen Miller’s “upside down” view of the Statue of Liberty, in whole or in part! Why can’t they just follow the Refugee Act of 1980 and establish the robust, timely, generous legal approach to refugees and asylum seekers that best serves America?
Bill Frelick
Bill Frelick
Director
Refugee and Migrant Rights Division
Human Rights Watch

https://thehill.com/opinion/immigration/3704714-bidens-new-plan-no-help-for-desperate-venezuelan-refugees/

Refugees are people who flee for their lives. Escape from danger and abuse is usually chaotic, sudden, desperate. The Biden administration’s rollout of its new policy for Venezuelan refugees seems oblivious to this refugee reality and risks doing more harm than good.

. . . .

Announcing the program on Oct. 12, Homeland Security Secretary Alejandro N. Mayorkas said Venezuelans who enter irregularly “will be returned to Mexico.”

He didn’t mention — and appeared to disregard — U.S. law, which recognizes that anyone who arrives in the United States has the right to seek asylum “whether or not at a designated port of arrival” and “irrespective of such alien’s status.”

The impact of this announcement, “effective immediately,” was the summary return to Mexico without examination of their asylum claims of any Venezuelans entering the United States without authorization. Mexico has given no assurances that it will examine their refugee claims or provide asylum to those who fear return to Venezuela. In fact, the 4,050 Venezuelans expelled to Mexico since the implementation of the policy have been given visas valid for only one week and instructed to leave the country.

. . . .

With the Biden administration’s plan in effect, we might as well apply a blowtorch to Emma Lazarus’s welcoming poem at the foot of the Statue of Liberty and chisel in a new message: “Give me your well-rested, your well-to-do, your properly ticketed jet-setters yearning to breathe free.”

Bill Frelick is the refugee rights director at Human Rights Watch. Follow him on Twitter @BillFrelick.

************************

Read Bill’s complete op-ed act the link. Bill is one of many “practical experts” who would do a much better job than current Administration politicos in establishing and running a refugee and asylum program that would comply with the law,  due process, human dignity, and America’s best interests. Why is Biden following the lead of his “clueless (and spineless) crew?”

The Refugee Act of 1980 was enacted and amended to deal with these situations! Robust, realistic refugee programs outside the U.S. should encourage many refugees to apply, be screened abroad, and admitted legally. 

Other refugees arriving at our border can be promptly screened for credible fear. Those who fail that test can be summarily removed in accordance with existing law. 

Those who pass that test should have access to counsel and receive timely, expert adjudications, with full appeal rights, under the generous “well founded fear” (1 in 10 chance) international standard established by the Refugee Act. See, e.g., INS v. Cardoza-Fonseca (Supremes); Matter of Mogharrabi (BIA).

It’s not “rocket science!” With dynamic, experienced refugee experts running the system and “practical scholars” with expertise in refugee processing and human rights laws serving as USCIS Asylum Officers and EOIR judges at the trial and appellate levels the legal system should be flexible enough to deal with all refugee situations in an orderly manner.

Many, probably a majority, of today’s asylum seekers should be granted asylum and admitted to the U.S. in full legal status, authorized to work, and on their way to green cards and eventual citizenship. Like those admitted from abroad, they could also be made eligible for certain resettlement assistance to facilitate integration into American communities who undoubtedly will benefit from their presence.

The more robust, realistic, and timely our overseas refugee programs become, the fewer refugees who will be forced to apply for asylum at our borders. Also, real, bold, dynamic humanitarian leadership, including accepting our fair share of refugees and asylees, could persuade other countries signatory to the Geneva Refugee Convention to do likewise.

No insurmountable backlogs; no bewildered individuals wandering around the U.S. in limbo waiting for hearings that will never happen; few “no shows;” no long-term detention; no botched, biased “any reason to deny” decisions from unqualified officers and judges leading to years of litigation cluttering our legal system, no diverting Border Patrol resources from real law enforcement, no refugees huddled under bridges or sitting on street corners in Mexico!

It’s not “pie in the sky!” It’s the way our legal system could and should work with competent leadership and the very best available adjudicators and judges! It would support the proper, important role of refugees as an essential component of LEGAL IMMIGRATION, not an “exception” or “loophole” as racists and nativists like to falsely argue.

Instead of demonstrating the competence and integrity to use existing law to deal with refugee and asylum situations, the Biden Administration resorts to ad hoc political gimmicks. Essentially, the “RA80” has been repealed “administratively.” Effectively, we’re back to the “ad hoc” arbitrary approaches we used prior to ‘80 (which I worked on during the Ford Administration, and where I recollect I first heard of Bill Frelick). 

I doubt that the late Senator Ted Kennedy, former Rep. Elizabeth Holtzman, and the rest of the group who helped shepherd the Refugee Act of 1980 through Congress would have thought that using Border Patrol Agents as Asylum Officers or packing the Immigration Courts and the BIA with judges prone to deny almost every asylum claim, regardless of facts or proper legal standards, was the “key to success!”

Congress specifically intended to eliminate the use of parole to deal with refugees except in extremely unusual circumstances, not present here. Biden’s latest ill-advised gimmick violates that premise. It’s totally inexcusable, as the refugee flow from Venezuela is neither new nor unpredictable. I was granting Venezuelan asylum cases before I retired in June 2016. Even then, there were legions of documentation, much of it generated by the USG, condemning the repressive regime in Venezuela and documenting the persecution of those who resisted!

A better AG would say “No” to these improper evasions of existing law. But, we have Merrick “What Me Worry” Garland! His botching of the Immigration Courts has been combined with a gross failure to stand up for equal justice for migrants (particularly those of color) across the board! America and refugees deserve better from our chief lawyer.

The Refugee Act of 1980 actually provides all the tools and flexibility the Biden Administration needs to establish order on the border and properly and fairly process refugees and asylees. Why won’t they use them?

Alfred E. Neumann
AG Merrick Garland has “looked the other way” while the Biden Administration flaunts applicable protection laws in and outside the U.S. He also runs a dysfunctional “court system” where anti-asylum bias, worst practices, poorly qualified decision makers, and grotesque inconsistencies undermine the legal rights of asylum seekers and other refugees. Doesn’t America deserve more competence from its top lawyer?
PHOTO: Wikipedia Commons

🇺🇸 Due Process Forever!

PWS

10-28-22

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. EOIR TARGETS UNACCOMPANIED KIDS FOR DEPORATION RAILROAD!
  4. ⚖️🗽🧑🏽‍⚖️COURTS OF APPEALS CONTINUE TO THROW ROTTEN TOMATOES 🍅 @ BIA’S ANTI-ASYLUM BIAS — Basic Analytical, Legal Errors Continue From Weaponized, Non-Expert “Star Chamber” ☠️ Posing As ”Tribunal!” — Judge Garland Must Fix This Inexcusable, Unnecessary, Systemic Failure Now! — Justice For Persons Of Color & Migrants Can’t “Wait For Godot!”

☠️💀⚰️DEATH VALLEY DAYS: ASYLUM SEEKERS & LAWYERS FACE HARSH CONDITIONS IN QUEST FOR ASYLUM IN GARLAND’S DYSFUNCTIONAL EOIR — Bad Law, Bias, Incompetence, Inconsistency, & Indifference To Humanity Among Obstacles — The Majority Perish Along The Way! — “Courtside” Takes You “Inside The Numbers” Of TRAC’s “New Look” IJ Asylum Reports — New Format, But Same Old Broken & Unfair System!

Death Valley
Asylum seekers and lawyers must cross hostile territory, with a dearth of naturally-occurring due process, to successfully negotiate Garland’s dysfunctional EOIR. Most never make it!
Death Valley
Creative Commons

Here’s the TRAC “New Format” IJ Asylum Report:

https://trac.syr.edu/immigration/reports/judgereports/

**********************************

INSIDE THE NUMBERS FOR THE TRAC 10-09-22 IJ REPORT

NOTE: Does not account for: IJs no longer on the bench; IJs appearing in more than one location; differences among detained, non-detained dockets; profiles of high and non-high-denying courts excluded locations with fewer than four IJs listed. No guarantee of accuracy for my “hand count” — but, in accordance with the old government motto, “I did the best I could under the circumstances.”

  • Precipitous unexplained rise in nationwide denial rate since FY 2012, from 44.5% to 63.3%, even though human rights conditions in most so-called “sending countries” remained horrible and in some cases significantly deteriorated. See for FY2012 stats, https://trac.syr.edu/immigration/reports/306/
  • Lots of “Nay-Sayers” on the Immigration Bench:
    • 92 IJs denied asylum 90% or more of the time.
    • Another 94 IJs denied 85-90% of the time.
    • Total of 186 “High Deniers” — those who denied 85% or more — significantly (21.7% or more) above already inexplicably high 63.3% national rate.
  • High Denying Courts (majority of IJs listed denied 85%+)
    • Atlanta (including ATD-Detained) (10 of 10 IJs)
    • Charlotte (6 of 8 IJs)
    • Conroe (5 of 9 IJs)
    • Houston (19 of 22 IJs)
    • Houston-Greenspoint (4 of 5 IJs)
    • Jena (6 of 6 IJs)
    • LA – North (8 of 11 IJs)
    • Los Fresnos (5 of 6 IJs)
    • Lumpkin (5 of 7 IJs)
    • Memphis (6 of 11 IJs)
    • Miami (20 of 31 IJs)
    • Miamii – Krome (7 of 9 IJs) 
  • Non-High-Denying Courts (all, or almost all, listed IJs denied less than 85%)
    • Adelanto (5 IJs)
    • Arlington (3 of 25 IJs High Deniers)
    • Bloomington (1 of 13 IJs High Denier)
    • Boston (1 of 15 IJs High Denier)
    • Baltimore (1 of 16 IJs High Denier)
    • Batavia (1 of 4 IJs High Denier)
    • Chicago (1 of 16 IJs High Denier)
    • Denver (2 of 8 IJs High Deniers)
    • Detroit (4 IJs)
    • Elizabeth (5 IJs)
    • Imperial (5 IJs)
    • New York (46 IJs, 0 High Deniers) **
    • New York Detained (17 IJs, 1 High Denier) 
    • Newark (3 of 16 IJs High Deniers)
    • Otay Mesa (7 IJs)
    • Pearsall (5 IJs)
    • Philadelphia (8 IJs)
    • Portland OR (4 IJs)
    • San Francisco (2 of 27 High Deniers)
    • Seattle (8 IJs)
    • Tacoma (5 IJs)
    • Van Nuys (1 of 7 IJs High Denier)
  • Telling stats:  99.1%, 97.4%, 94.3% 90.4% — Asylum denial rates for four BIA Appellate Immigration Judges listed in the chart who continue to serve on Garland’s BIA. No wonder asylum seekers are saddled with bad law and sloppy, one-sided appellate review within Garland’s dysfunctional EOIR.
  • Best courts for asylum seekers: Generally  in the Northeast and Northern California: Arlington, Boston, Baltimore, New York, Philadelphia, Newark, San Francisco, Chicago.
  • Worst places for asylum seekers: Atlanta, Miami, Charlotte, Houston, Louisiana.
  • Mind-blowing stat: Compare the performance of IJs in Arlington and Baltimore with those in Charlotte, all within the 4th Circuit.
  • Observations:
    • New York, followed by San Francisco, appear to be the largest and best functioning courts with respect to actually following the generous standards for asylum seekers set forth by the Supremes in Cardoza-Fonseca, enunciated (but seldom followed) by the BIA in Mogharrabi, and to a large extent incorporated into sporadically enforced regulations.
    • In NY, 46 IJs, 0 High Deniers, 24 listed IJs granted at least 50% or more of the cases, denial rates ranging from 7.1% to 83.5%, still a rather mind-boggling range.The 24 IJs in the 50% or more grant range would seem like a good place for Garland to look for a model for rebuilding EOIR as a fair, due-process-oriented, subject matter expert court. He doesn’t seem interested in doing that, but it could be done with better leadership.
    • Although generally one would expect Detention Courts to be in the “High Denier” category, that’s not always the case. Courts like NY-Detained, Elizabeth, Adelanto, Otay Mesa, and Pearsall, all had some significant asylum grant rates. Conversely, several predominantly non-detained courts like Atlanta, Charlotte, Miami, and Houston were unseemly “dead zones” for asylum seekers. Garland’s failure to address the gross inconsistencies and abuses of asylum law going on in those and other “High Denier Courts” is disgraceful.
  • Overall, this is a statistical picture of a failed and dysfunctional court system where critical life or death decisions depend more on where you are and who your judge or BIA “panel” is than on the quality of the evidence or the state of the law. It has failed to deliver on its promise of being a court of widely acknowledged subject matter experts who will guarantee due process, fundamental fairness, and best judicial practices for all on some of the most important and life-determining decisions in American jurisprudence. It’s bad; and not significantly improving under the Dems!

🇺🇸Due Process Forever!

PWS

10-28-22

Related posts:

  1. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  2. 👍🏼⚖️🗽MAJORITY OF ASYLUM SEEKERS WIN THEIR CASES, EVEN IN A BROKEN & BIASED  SYSTEM INTENTIONALLY STACKED AGAINST THEM — But, Only, If They Can Get To A “Merits Adjudication!” — Nativist Lies, Myths, Driving USG Policies Exposed! — Why USCIS & EOIR Self-Created Backlogs Primarily Shaft Those Deserving Legal Protection Of Some Type!
  3. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  4. 🏴‍☠️BIA’S MISOGYNISTIC, ANTI-ASYLUM, IGNORE THE EXPERTS & THE EVIDENCE APPROACH 🤮 REBUKED AGAIN — 9th Cir. Slams BIA Big Time In Rodriguez Tornes v. Garland! — “Concurring, Judge Paez wrote that in addition to ignoring evidence that Rodriguez was targeted on account of her feminist political opinion, the Board also ignored extensive record evidence from a leading authority on domestic violence that directly rejected the Board’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a ‘personal relationship.’”