🗽END THE “DOUBLE STANDARD” FOR REFUGEES — All Refugees Must Be Treated With Respect, Dignity, & In Accordance With The International Legal Standards! 

 

Nikolái Ingistov-García
Nikolái Ingistov-García Lecturer in Spanish Language and Latin American Studies at UC Riverside


http://enewspaper.latimes.com/infinity/article_share.aspx?guid=7fe1b555-69d3-499c-b9cc-3deaebd50a26

A glaring double standard on refugees

The portrayal and treatment of Ukrainians fleeing war and of Haitian, Central American and Mexican asylum seekers also fleeing deadly violence could not be more different

By Nikolái Ingistov-García

. . . .

Over the course of that weekend, I watched how the Ukrainian refugee crisis grew day by day. I read that Airbnb was paying for thousands of refugees to stay in their rooms. Thousands of Europeans in dozens of countries opened their doors to Ukrainians. I was encouraged but bothered at the same time. Media outlets all over the world from the left, right and center praised the courage of these refugees, and some reporters called them heroes.

An overwhelming majority of my students in my classes at UCR are Latino. Several of them are refugees from Latin America, and a few are “Dreamers.” I asked if any of them noticed anything with this growing refugee crisis in Eastern Europe, and several were quick to point out the double standard.

A few weeks before Putin’s invasion of Ukraine started, my class watched interviews about the forced sterilization of Latina refugees at an immigration detention center in Georgia. We discussed the Latino children fleeing Honduras, El Salvador and Guatemala who are being held in U.S. Immigration and Custom Enforcement detention centers to this day. The double standard in the me-dia’s portrayal of the Ukrainian refugees in Europe compared with the images of Haitian, Central American and Mexican migrants at the Mexican border was obvious to everyone in my class.

I thought about the tens of thousands of refugees fleeing Ukraine and the tens of thousands of refugees who have had to flee their homes in Central America, Mexico and other parts of Latin America because of wars, dictatorships, gang warfare and cartel terrorism. Refugees and migrants who are uprooted from their homes all go through trauma whether they come from Latinoamérica or Eastern Europe.

The images of people fleeing Ukraine shook me as I remembered my family’s histories from Ukraine and Mexico, with both sides leaving their homelands for a better life.

. . . .

Ukraine and Mexico came together to form my family in the borderland of Los Angeles. My Chicano-Mexican-Russian-Ukrainian border-crossing identity hurts as I watch Putin’s war unfold while more waves of Latin American and, very recently, Ukrainian refugees arrive at the Tijuana-U.S. border. My hope is that out of this tragedy, future refugees that come to the Mexican border, whether they are from Honduras or Ukraine, are treated with equal dignity — which all of them deserve.

Nikolái Ingistov-García is a lecturer in Spanish languageand Latin American Studies at UC Riverside.

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Ukrainian refugees are “courageous heroes.” Meanwhile, equally brave and deserving refugees of color from Haiti, Latin America, and Africa are dehumanized, degraded, and removed to potential death or danger without a thought and in violation of law. 

They are often called by the misnomer “illegal migrants” — or worse! Ironically, however, the refugees arriving at Southern Border, even if not “invited,” are exercising internationally and domestically recognized legal rights to apply for asylum and other legal protections from involuntary return, some mandatory!

Of course, as intelligent humans, they don’t wait in vain or line up for “imaginary invitations” that will never come! We have no viable refugee programs for Haiti, Africa, and Latin America. Indeed, after four years of Trump and one of Biden we barely have any refugee programs anywhere! Even worse, we have immorally and illegally closed legal ports of entry to asylum seekers. So, having left refugees no viable legal avenues for seeking refuge in the U.S., a right guaranteed by both statute and international convention, we dehumanize and degrade them for using the only “self-help” methods available! Talk about chutzpah!  

It’s actually folks like Vice President Harris, Secretary Mayorkas, AG Garland, and his band of scofflaw lawyers at the DOJ who are the “illegals” in this  scenario. The Biden Administration is hardly the first to turn refugee and asylum laws as well as the Due Process and Equal Protection Clauses of our Constitution on their heads.

The Trump regime gloried in violating the law and mistreating refugees simply for the cruelty, racism, and hate involved. Shockingly, with a some exceptions, life-tenured Federal Judges gave them a pass — particularly at the Supremes which developed their own “special double standard” to dehumanize and “Dred Scottify” immigrants of color!

The Biden Administration sweeps their own gross misconduct and racially charged “double standards” under the rug! Under Garland, the DOJ has “gone along to get along” and even disgracefully defended illegal, immoral, and deadly removals without any process at all. In doing so, they have advanced some of the same discredited myths and disingenuous pretexts developed by Miller, Sessions, Barr and the Jim Crow White Nationalist nativists!

The “mainstream media” give excruciatingly detailed coverage of the humanitarian plight of Ukrainian refugees. Meanwhile, the similar humanitarian plight of vulnerable equally deserving refugees of color, like Ukrainians many of them desperate women and children, gets little coverage outside of a few specialized reporters. 

Of course, beyond the rhetoric, the Biden Administration has actually done very little to help even Ukrainian refugees beyond hollow expressions of sympathy and using them as “props” in the “war of words” with Putin. Leadership is a combination of rhetoric backed with action! 

Our refugee and asylum systems are in shambles, without the leadership and expertise in place to respond to either predictable refugee flows or humanitarian catastrophes in a practical and effective way. That needs to end! But, unfortunately, its hard to see the current, spineless (non) leadership from Harris, Mayorkas, Garland, and others in this Administration getting the job done!

🇺🇸Due Process Forever!

PWS

03-21-22

🏴‍☠️☠️⚰️🤮👎🏽 ILLEGAL & IMMORAL: HRC’s Stunning Indictment Of Biden Administration’s Continuing Abuse Of Legal Asylum Seekers — “The Title 42 policy discriminatorily targets Haitian and other Black asylum seekers, spurs disorder at the border, undermines security, and separates families.”

“Floaters”
Although most senior Biden Administration officials work hard to avoid the border and confronting scenes like this, trauma, death, destruction, and dehumanization of the world’s most vulnerable will remain as indelible parts of their toxic legacies. “Floaters — How The World’s Richest Country Responds To Asylum Seekers”
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Stephen Miller Monster
Carrying on and defending this guy’s cruel, inhuman, deadly, dishonest, and illegal policies wasn’t part of the Biden-Harris campaign pledge. Or was it? Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

From ImmigrationProf Blog:

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/two-years-of-suffering-biden-administration-continues-use-of-discredited-title-42-order-to-flout-refugee-law

Two Years of Suffering: Biden Administration Continues Use of Discredited Title 42 Order to Flout Refugee Law

Human Rights First, Mar. 16, 2022

“For two years, the U.S. government has illegally blocked and expelled people seeking refuge at the southern U.S. border despite U.S. laws and treaties created to protect them. Since March 20, 2020, the U.S. Department of Homeland Security (DHS) has used orders from the Centers for Disease Control and Prevention (CDC), purportedly issued under Title 42 of U.S. law, to prevent asylum seekers from requesting U.S. asylum and returning thousands to persecution, torture, and other horrific violence. In March 2022, the U.S. Court of Appeals for the D.C. Circuit found that the use of Title 42 to expel people to places where they would face persecution or torture is likely illegal, violating U.S. refugee laws and international treaty obligations.

The grave human rights abuses faced by people turned away under Title 42 continue to mount every day that U.S. officials allow this policy’s use to evade refugee law. Human Rights First has now tracked at least 9,886 kidnappings, torture, rape, and other violent attacks on people blocked in or expelled to Mexico due to the Title 42 policy under the Biden administration – a new record of suffering.

Flouting refugee protection laws as a response to the COVID-19 pandemic is not and never was justified as a public health measure. Initially issued by the CDC under orders from senior Trump administration officials and despite objections by CDC experts, the Biden administration has continued the policy for migration policy and/or political reasons, according to various reports. CDC Director Dr. Rochelle Walensky re-issued a new version of the Title 42 order in August 2021, and has subsequently repeatedly extended it. The CDC must review whether to continue, modify, or end the Title 42 order by March 30, 2022.

Epidemiologists and medical experts have exhaustively established that Title 42 does not protect public health, and in fact exacerbates the spread of COVID-19. The claimed public health justification for the Title 42 order has become even more transparently unjustified as the administration lifts other pandemic-related international travel restrictions and with mask mandates lifted in all 50 U.S. states. In March 2022, the CDC partially terminated the Title 42 order as to unaccompanied children following a federal court ruling that would have compelled the resumption of expulsions of unaccompanied children. In a notice explaining the decision, the CDC cited declining COVID-19 cases nationwide, including in communities along the U.S.-Mexico border, increased vaccination rates in the United States and countries of origin, and widespread availability of COVID-19 testing and other mitigation measures at facilities receiving migrants. Despite these factors applying equally to all people seeking refuge in the United States, the CDC has so far disingenuously maintained the Title 42 order to expel families and adults.

At this shameful second anniversary of the Title 42 policy, the Biden administration continues to illegally turn away asylum seekers without access to the U.S. asylum system. It is carrying out dangerous expulsions to countries refugees have fled, including: El Salvador, Guatemala, Haiti, Honduras, and Mexico, as well as expelling some Venezuelans to Colombia. The Title 42 policy discriminatorily targets Haitian and other Black asylum seekers, spurs disorder at the border, undermines security, and separates families. While some Ukrainians fleeing the Russian invasion have been allowed to cross into the United States at southern border ports of entry, Customs and Border Protection (CBP) continues to cite Title 42 to illegally block others and to discriminatorily turn away many asylum seekers of other nationalities and races who have often been waiting for months or years in danger in Mexico to seek U.S. asylum protection.

The Biden administration must immediately end this disastrous policy and restart the asylum processes required under U.S. law along the border, including at ports of entry, as Human Rights First has recommended. In recent weeks, dozens of members of Congress have publicly called for an end to the Title 42 policy with Senate leadership condemning the Biden administration’s decision to continuing sending asylum seekers “back to persecution and torture” as “wrong.” The United States has the capacity to welcome people seeking refuge. Many faith- and community-based organizations along the border and throughout the United States are standing by ready to assist the families, adults, and children seeking refuge.

This factsheet updates prior research on the Title 42 policy by Human Rights First in February 2022January 2022December 2021, November 2021 (with Florence Immigrant and Refugee Rights Project), October 2021, August 2021, July 2021 (with Hope Border Institute), June 2021, May 2021 (with RAICES and Interfaith Welcome Coalition), April 2021 (with Al Otro Lado and Haitian Bridge Alliance), December 2020, and May 2020.

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How will Harris, Mayorkas, Garland, Walenksy, and other senior Biden Administration officials who have spinelessly furthered these inexcusable, illegal, abusive, and deadly anti-humanitarian policies deal with their toxic legacies? Also, Deputy AG Lisa Monaco, Associate AG Vanita Gupta, SG Liz Prelogar, and Assistant AG for Civil Rights Kristen Clarke stand out as irresponsible, “look the other way,” fundamentally flawed public officials who have failed to “rise to the occasion” in the time of democracy’s and humanity’s greatest needs! Carrying out “Miller Lite,” Jim Crow, xenophobic, racially targeted policies, often endorsing false narratives and using obvious pretexts, directed against some of the world’s most courageous, vulnerable humans, deserving of humane treatment and fair access to refuge, is “NOT OK!” 

Perhaps the most telling observation about our exercise in national failure is this:

The United States has the capacity to welcome people seeking refuge. Many faith- and community-based organizations along the border and throughout the United States are standing by ready to assist the families, adults, and children seeking refuge.

It’s not rocket science! All it would have taken to get his right would be some political courage and empowering those with the skills and vision to change the way we treat refugees, asylees, and other immigrants!

🇺🇸Due Process Forever!

PWS

03-2.0-22

🤯JUXTAPOSITION OF THE WEEK: INCOMPETENCE OF USG IMMIGRATION BUREAUCRACY HARMFUL TO PRACTITIONERS’ HEALTH!☠️🤮

Drowning Chain
“Drowning Chain”
Public Realm

These items were posted together this week on LexsNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/uscis-contact-center-is-more-a-source-of-frustration-than-assistance

USCIS Contact Center is More a Source of Frustration than Assistance

Cyrus D. Mehta, Kaitlyn Box, and Jessica Paszko, Mar. 15, 2022

“The USCIS Contact Center purports to provide tools for checking case statuses online, correcting notices that contain mistakes or were never delivered, and connecting applicants to a representative for live support. However, the Contact Center is more often a source of frustration than assistance. We outline some of our firm’s experiences with the Contact Center, and provide suggestions for improving its services.

One common set of issues occurs when an attorney attempts to place a call or e-request on behalf of a client. USCIS refuses to speak with even the managing attorney of the firm if a different attorney has submitted a Form G-28. Difficulties arise when the attorney of record has departed the firm or is otherwise unavailable, and other attorneys are then unable to utilize the Contact Center to assist a client. Even when the alternate attorney on the case submits a Form G-28, the Contact Center often is unable to track the submission of  a new Form G-28 and refuses to speak with the alternate attorney.   In some instances, USCIS will speak with an alternate attorney if the client is also on the call. This arrangement, however, defeats the purpose of a Form G-28 by forcing the client verbally give permission for representation over the phone, and is highly inconvenient when an attorney cannot be physically in the room with a client or arrange a conference call.

Additionally, USCIS only allows certain interested parties to a case to utilize the Contact Center to make queries. Only the petitioner or an attorney/accredited representative can submit e-requests in connection with a Form I-129 or I-140 petition, for example. USCIS will not respond to requests placed by the beneficiary of such petitions, although the beneficiary may be more sensitive to delayed receipt notices or misspelling on approval notices, and in a better position to raise these issues to USCIS than the employer.

Further, the USCIS Contact Center is not always responsive to requests, even when they are placed by a recognized party. Our office has observed instances of receipt notices that contain errors failing to get corrected, even after multiples calls and e-requests from the attorney of record. When USCIS does not timely rectify errors of this kind and issues an approval notice still containing a misspelling, applicants are forced to file a Form I-824 and pay the considerable $465 filing fee to seek a correction. The processing time for an I-824 ranges from a few months to upwards of 24 months.

Delays in processing applications have become endemic. Applicants do not get an employment authorization document issued in time and can lose their job. Also, obtaining advance parole to travel takes several months. One can use the USCIS Contact Center to make an expedite request under its articulated criteria. Unfortunately, most expedited requests get denied even though they fit the criteria

The problems with the USCIS Contact Center have widely been observed. On February 28, 2022, 47 members of Congress wrote a letter to DHS urging it to make improvements to the Contact Center. See AILA, Forty-Seven Members of Congress Urge DHS to Make Improvements to USCIS Contact Center, AILA Doc. No. 22030300 (Feb. 28, 2022),  https://www.aila.org/infonet/urging-dhs-to-make-improvements-to-uscis-contact. Among the improvements suggested by the members of Congress were providing accurate and accommodating callback windows for customers submitting requests through InfoMod, allowing law firm staff other than the attorney of record to make requests through the Contact Center, making the criteria used to grant appointments through InfoMod public, and offering walk-in availability for emergency requests at local USCIS offices.

Notwithstanding its shortcomings, the USCIS Contact Center has facilitated positive outcomes for some individuals. The USCIS 800 number has been helpful in getting corrected notices sent to applicants, or in this firm’s experience, ensuring that beneficiaries to an approved I-140 receive copies of Notices of Intent to Revoke under Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017).”

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

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/the-lifeguard-is-drowning-identifying-and-combating-burnout-and-secondary-trauma-in-asylum-practitioners-free-aba-webinar

The Lifeguard is Drowning: Identifying and Combating Burnout and Secondary Trauma in Asylum Practitioners (Free ABA Webinar)

The Lifeguard is Drowning: Identifying and Combating Burnout and Secondary Trauma in Asylum Practitioners

Register here.

 

Asylum attorneys have been facing a longstanding mental health crisis. The pandemic, sweeping regulatory changes, and uncertainty created deeper dimensions of stress in an already chaotic immigration system. To address this crisis, in 2020, Professors Lindsay Harris and Hillary Mellinger surveyed over 700 immigration attorneys utilizing the National Asylum Attorney Burnout and Secondary Traumatic Stress Survey. Their groundbreaking study found that asylum attorneys displayed symptoms of burnout and Secondary Traumatic Stress (STS) at rates higher than immigration judges, social workers, hospital doctors, nurses, and prison wardens. Asylum attorneys reported burnout symptoms including not only depression, but boredom, cynicism, discouragement, and a loss of compassion. Notably, STS symptoms mirror Post-Traumatic Stress Disorder which include intrusive thoughts, traumatic nightmares, insomnia, chronic irritability, fatigue, trouble concentrating, and hypervigilance.

The ABA has a longstanding commitment to address and identify resources to ameliorate attorney well-being and mental health. While strides have been made, this panel seeks to build upon the study to facilitate a normative shift away from old mental health paradigms to a culture of openly discussing burnout and secondary trauma within law school settings, non-profits, government agencies, and law firms.

This webinar, moderated by Deena Sharuk, Senior Legal Advisor to the ABA Commission on Immigration (COI), along with experts Law Professor Lindsay Harris, Criminal Justice and Criminology Professor Hillary Mellinger, ABA COI Senior Staff Attorney Eloy Gardea, and Leora Hudak from Center for Victims of Torture will discuss the implications of the survey’s findings on lawyers, their clients, and the immigration system. The panelists will discuss concrete ways to shift the norms in the legal profession on an individual and institutional level for attorneys to build sustainable careers in this field.

 

Time: Apr 7, 2022 03:00 PM in Eastern Time (US and Canada)

 

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Of course, USCIS isn’t the only part of the dysfunctional immigration bureaucracy taking a toll on the heath of practitioners and their clients. 

Over at EOIR, poor leadership, overly bureaucratized management, “Aimless Docket Reshuffling,” mindless enforcement “gimmicks,” a “Miller Lite” BIA, poor judicial selections by the Trump regime unaddressed by Garland, anti-immigrant/anti-asylum seeker “culture,” disdain for due process, disregard for best practices, endless largely self-generated backlogs, and lack of transparency continue to plague the system and torment advocates.

Unlike DOJ and EOIR, the ABA Panel conducting this webinar is made up of true subject matter experts and all-star practical scholars.

Deena Sharuk
Deena Sharuk
Senior Advisor
ABA Commission on Immigration
Professor Lindsay Muir Harris
Professor Lindsay Muir Harris
UDC Law
Hillary Mellinger
Dr. Hillary Mellinger
Assistant Professor
Department of Criminal Justice and Criminology
Washington State University
PHOTO: WSU
Eloy Gardea
Eloy Gardea
Senior Staff Attorney
ABA Commission on Immigration
PHOTO: Facebook
Leora Hudak
Leora Hudak
Program Manager
Center for Victims of
Torture
PHOTO: Linkedin

🇺🇸Due Process Forever!

PWS

03-19-22

🤯“MAINSTREAM MEDIA” FINALLY CATCHES UP WITH “COURTSIDE” — Trump’s Evil Cruelty, Biden’s “Slows” Combine To Shaft Ukrainians, Russians, Other Refugees, While Failing Our Allies! — It’s An Inexcusable Mess, Just As Many Of Us Predicted!☠️🤮

Screwed
“Screwed”
By Pearson Scott Foresman
Public Domain

By Paul Wickham Schmidt

Courtside Special Report

March 18, 2022

For the last year, “Courtside” has been ripping the incredibly poor, timid, stunning lack of vision leadership, expertise, common sense, and morality in the Biden Administration’s failure to restore and expand a robust overseas refugee program and to enforce the rule of law and due process in our asylum system at the border and in the US. Even as I write this, Garland’s failed BIA, with too many Trump restrictionist holdover judges, continues to crank out bad asylum precedents and anti-immigrant legally incorrect appellate decisions and precedents. 

DOJ mindlessly continues to advance and defend the indefensible in Federal Court. It’s “Miller Lite” on steroids! Squandering taxpayer money, wasting scarce pro bono resources, and worst of all, endangering human lives!

Stephen Miller Monster
This guy has to be thrilled with Garland’s approach to human rights, racial justice, and due process @ DOJ! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

Essential human rights issues like providing definitive, generous, positive guidance to move gender-based asylum cases through the system, correcting “intentionally overly restrictive” and ridiculously hyper-technical, legally wrong, highly impractical applications of supposedly “generous” asylum laws, lack of common sense, expertise, understanding, and humanity remain endemic in Garland’s broken “court” system and the USCIS Asylum Offices which are supposed to be under their legal guidance. 

The border effectively remains illegally and irrationally closed to refugees seeking asylum! Absurdly, the decisions as to who lives and who dies are left to the unfettered, unreviewable, “discretion” of Border Patrol Agents who are glaringly unqualified to make them. There aren’t even any known criteria in effect!

Indeed, that’s the precise reason why Congress created Asylum Officers and put them and Immigration Judges into the life or death asylum screening process, only to have Trump abrogate the law as Federal Courts meekly and fecklessly stood by! Hardly America’s finest moment!

There is plenty of irresponsibility to go around! But, dilatory “What Me Worry” AG Merrick Garland and his feckless lieutenants Lisa Monaco, Vanita Gupta, Kristen Clarke, and Liz Prelogar, along with DHS Secretary Alejandro Mayorkas, deserve “special censure” for the brewing, unnecessarily out of control humanitarian and equal justice crisis!

Alfred E. Neumann
Garland’s tone-deaf approach to human rights and the rule of law now threatens the international order and the lives of perhaps millions of refugees and asylum seekers!
PHOTO: Wikipedia Commons

The WashPost finally “gets” it:

https://www.washingtonpost.com/opinions/2022/03/16/united-states-open-doors-ukraine-refugees/

The Biden administration’s immigration policy to date has been shambling. It can now do one big thing right: step up, grant humanitarian parole and help resettle Ukrainian refugees.

Catherine Rampell
Catherine Rampell
Opinion Columnist
Washington Post

So does Catherine Rampell, writing in WashPost:

https://www.washingtonpost.com/opinions/2022/03/17/ukrainians-are-suffering-consequences-of-our-broken-immigration-system/

Trump’s xenophobic policies had consequences beyond the cruelty inflicted while he was in office. Ultimately, they hobbled our ability to provide aid during a humanitarian catastrophe and thereby protect our own national security interests. Now, Biden must not only respond to the current crisis but also repair our institutions so that we have greater capacity to deal with future ones.

I’m sure traumatized Ukrainians and Russian dissidents being improperly turned back at our border were comforted by the following tone-deaf blather from Mayorkas as reported by Deepa Fernandes in the SF Chron:

 

Deepa Fernandes
Deepa Fernandes
Immigration Reporter
SF Chronicle
PHOTO: SF Chron

https://www.sfchronicle.com/us-world/article/They-protested-Putin-and-fled-their-country-Now-17010445.php

On Thursday, Homeland Security Secretary Alejandro N. Mayorkas told reporters that Border Patrol agents were reminded they have some leeway with regard to enforcing Title 42, particularly when it comes to those fleeing the crisis in Ukraine, BuzzFeed News reported.

“This was policy guidance that reminded (border officers) of those individualized determinations and their applicability to Ukrainian nationals as they apply to everyone else,” the online news outlet quoted Mayorkas as telling reporters.

Come on, man! You’ve got to be kidding me!

Belatedly, it appears that the Biden Administration is now “considering” restoring the rule of law at the borders (something they actually promised during the election), according to Alexandra Meeks over at CNN:

Alexandra Meeks
ALexandra Meeks
Current News Reporter
CNN
PHOTO: Linkedin

 

 

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https://e.newsletters.cnn.com/click?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

The Biden administration is preparing for the potential of mass migration to the US-Mexico border when a Trump-era pandemic emergency rule ends. The influx is expected because officials are considering the possibility of terminating a public health order known as Title 42, which border authorities have relied on to turn away migrants, sources familiar with the discussions said. Internal documents, first reported by Axios, estimate around 170,000 people may be coming to the US border and some 25,000 migrants are already in shelters in Mexico. The Department of Homeland Security has asked department personnel to volunteer at the Mexico border in response.

But, it’s not clear that they have any real plan in mind. That’s certainly the case in Garland’s dysfunctional, astoundingly backlogged (1.6 million known cases) Immigration “Courts” led by a Trump restrictionist BIA. “Gauleiter” Stephen Miller must evilly chuckle every morning at how Garland has left his “designed for White Nationalism” system largely in place and continuing to shaft and screw asylum seekers on a daily basis.

And, no, 170,000 migrants arriving at the border, not all of whom are seeking asylum, isn’t a “mass migration” emergency! It’s a fairly predictable movement of migrants at a pace that should be well within the capabilities of our nation. 

Treat them with respect. Promptly and properly screen them with qualified Asylum Officers. Timely welcome those many who qualify for protection with competent expert Immigration Judges. End the anti-asylum nonsense and move the many grantable asylum, withholding, and CAT cases through the system. Develop humane, orderly responses for those who are rejected. Get in place a new BIA that understands asylum law, due process, and human rights. Empower them to “knock heads” of IJs and Asylum Officers who won’t let go of the White Nationalist “reject, don’t protect” program!” 

It’s not “rocket science.” 🚀 Not by a long shot!

No, an “emergency mass migration situation” is 3.2 million refugees fleeing war in Ukraine in three weeks and arriving in allied nations like Poland, Romania, and Moldova who have far fewer resources and ability to respond than the U.S.! These are also nations who legitimately fear that they could be next on Russia’s “hit list.”

And, while the humanitarian crisis is brewing, what’s Garland up to? He beefing up his already-record-setting Immigration Court backlog with “kiddie cases” (0-4 year olds, incredibly) — to the extent anyone can even figure it out, given his notoriously flawed and unprofessional record keeping at EOIR. See, e.g., https://trac.syr.edu/immigration/reports/681/. 

Toddler
Garland and his top lieutenants are too busy filling the Immigration Courts with these desperados in the 0-4 age group to worry about restoring due process or treating asylum seekers fairly!
PHOTO: Sean Choe, Creative Commons License

Honestly! But, don’t say that “Courtside,” Jeffrey Chase Blog, Dan Kowalski, ImmigrationProf Blog, CGRS, Human Rights First, NIJC, AILA, KIND, NCIJ, ABA, and many other experts didn’t warn against this grotesque failure long ago — often predating the 2020 election!

I understand that “no fly zones” are more complicated than most American pols and media wags think and that there are challenges to waging war from afar without actually declaring war on Russia. But, repairing our refugee, asylum, and immigration systems, and restoring due process to our courts are not in this category of difficulty. 

It’s beyond time for the Biden Administration, particularly Mayorkas and Garland, to get the lead out, grow backbones, get rid of the remnants of Trumpism in their ranks  — personnel, substance, process — and run a refugee and asylum legal system that serves our and our allies’ needs. One that is values and law based! One that our nation can be proud of, rather than embarrassed before the world! End the Clown Show, in Falls Church and throughout our muddling immigration and (non) human rights bureaucracy!🤡

Amateur Night
The Garland/Mayorkas “Plan” for human rights and immigrant justice is proving as deadly as it is dysfunctional.
PHOTO: Thomas Hawk
Creative Commons
Amateur Night

Time’s a wasting and people are dying! ⚰️ Enough of “Amateur Night at the Bijou.”☠️ Nobody’s laughing!🤮

🇺🇸Due Process Forever!

PWS

03-18-22

🤯JUDGE ANNE GREER’S “PLAIN LANGUAGE” DISSENT GETS LAW RIGHT, BUT DROWNED OUT BY PRO-DHS TRUMP HOLDOVERS! 🤬 — Matter of M-M-A-, 28 I&N Dec. 494 (BIA 2022) — At DHS “Partner’s” Request, BIA Wrongly Restricts IJ’s Independent Discretion To Do Justice!👎🏽

Kangaroos
“Oh, Great and Exalted Masters at DHS Enforcement, how high would you like your humble servants here at the BIA to jump?” 
https://www.flickr.com/photos/rasputin243/
Creative Commons License

 

https://www.justice.gov/eoir/page/file/1482556/download

Matter of M-M-A-, Respondent

Decided March 11, 2022

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

When the Department of Homeland Security raises the mandatory bar for filing a frivolous asylum application under section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6) (2018), an Immigration Judge must make sufficient findings of fact and conclusions of law on whether the requirements for a frivolousness determination under Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), have been met.

FOR THE RESPONDENT: Elias Z. Shamieh, Esquire, San Francisco, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Jennifer L. Castro, Assistant Chief Counsel

BEFORE: Board Panel: WILSON and GOODWIN, Appellate Immigration Judges. Dissenting Opinion: GREER, Appellate Immigration Judge.

WILSON, Appellate Immigration Judge: [Opinion]

For those interested in what the law actually says (clearly an “endangered minority” @ Garland’s BIA), here’s key language from Judge Greer’s dissent:

In my view, when an Immigration Judge elects to undertake the analysis set forth in our precedent under Matter of Y-L-, either independently or at the request of the DHS, and determines that the application is frivolous, then the plain statutory language requires the entry of a frivolousness finding as part of the Immigration Judge’s decision. But whether the Immigration Judge must conduct that analysis in the first place because the DHS requests it is a different question. This key distinction was recognized by the Second Circuit in stating that Immigration Judges “regularly exercise discretion when deciding whether to initiate a frivolousness inquiry.” Mei Juan Zheng, 672 F.3d at 186.

Requiring the adjudicator, either independently or at the request of the DHS, to engage in this analysis because the respondent made a material misrepresentation upends current practice by creating a rigid structure not mandated by statute. It equates adverse credibility with frivolousness, which I view as conflicting with the case law. It also removes discretion from the Immigration Judge and transfers it to the DHS. Accordingly, the majority’s interpretation constitutes an unwarranted expansion of the frivolousness provisions.

Although the majority casts this question in terms of whether an Immigration Judge may “ignore” a mandatory bar to asylum, the question is whether the Immigration Judge has the authority to make a judgment about pursuing a frivolousness inquiry. This Immigration Judge did not ignore a request from DHS to consider frivolousness. Rather, she entertained it and made an independent judgment not to proceed based on particular facts and circumstances in this case after deliberation. As discussed, the DHS did not question the judgment she made, which is a critical distinction; rather the DHS questions the ability of the Immigration Judge to make this judgment at all.2

I interpret the language and structure of the statute and development of relevant case law, combined with the sequencing of the frivolousness inquiry and its consequences, to demonstrate the discretionary nature of the frivolousness inquiry. And, absent any challenge to how the Immigration Judge exercised her discretion in this case, which I consider to have been waived, I would dismiss the appeal.

2 The relevant factors for the Immigration Judge to assess in making a threshold determination whether to invoke the frivolousness inquiry are a separate issue not implicated by the posture of this case.

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

BIA to IJs: “When our overlords @ DHS tell you to jump, your duty is to say ‘how high, my masters!’”

Under Garland, the “Miller Lite Holdover BIA” continues to pile up some really wrong, one-sided, and poorly-reasoned decisions that intentionally skew the law against migrants and adversely affect human lives. Decisions that punctuate Judge Joan Churchill’s call for an independent Article I Immigration Judiciary. In an article I posted yesterday, Joan argued persuasively that that EOIR never had true quasi-judicial independence.  Decisions like this illustrate her point. https://immigrationcourtside.com/2022/03/12/%e2%9a%96%ef%b8%8f%f0%9f%91%a9%f0%9f%8f%bb%e2%9a%96%ef%b8%8f%f0%9f%91%a9%f0%9f%8f%be%e2%9a%96%ef%b8%8f%f0%9f%97%bdfeature-the-latest-issue-of-the-abas-judges/

Here, a correct (basically, uncontested on the merits, as Judge Greer points out) grant of a waiver was reversed just because DHS wanted “control” over the judges. “How dare a ‘mere employee’ of the AG exercise discretion in the face of the ICE ACC’s demand? Do these guys think they are ‘real’ judges? Let’s tell our buddy Merrick to get his toadies back in line like they were under Sessions and Barr!” How does the “holdover” BIA’s steady stream of incorrect decisions, institutionalized bias, and “worst practices” advance justice? 

The “Biden-Era BIA” is building a legacy of bad law, poor judging, and unnecessarily broken lives. Not exactly what the Biden Administration promised during the election! And, it goes without saying that requiring a fact-heavy “full Y-L- analysis” at the unilateral demand of the DHS will increase the backlog as Garland “shoots for 2 million” in his dysfunctional and chronically misdirected “courts.”

🇺🇸Due Process Forever!

PWS

03-13-22

 

⚖️👩🏻‍⚖️👩🏾‍⚖️🗽FEATURE:  THE LATEST ISSUE OF THE ABA’S “JUDGES’ JOURNAL” HIGHLIGHTS THE CONTINUING FAILURE OF OUR IMMIGRATION COURTS AND THE COMPELLING NEED FOR AN ARTICLE I IMMIGRATION COURT!  — Round Table Leader 🛡⚔️ Hon. Joan C. Churchill Makes The Case In Powerful Lead Article!

Judge Joan Churchill
Honorable Joan Churchill
Retired U.S. Immigration Judge
Member Round Table of Retired Judges
Knightess
Knightess of the Round Table

 

 

 

 

 

 

Here’s the link to Joan’s super timely article in the Judges’ Journal.  ABA membership is required to access it:

https://www.americanbar.org/groups/judicial/publications/judges_journal/2022/winter/compelling-reasons-an-article-i-immigration-court/

The whole issue is devoted to addressing the critical due process, fundamental fairness, and ethical issues in Immigration Court with articles by NAIJ President Judge Mimi Tsankov, Judge Samuel B. Cole, Professor Michele Pistone of the VIISTA Villanova Project and others in addition to Joan. 

🇺🇸Due Process Forever!

PWS

03-12-22

🤮 INDEFENSIBLE: 7th Cir. Schools BIA On Briefing Schedules, Own Regs, Fabricated “Facts” — Oluwajana v. Garland

 

Dan Kowalski reports from LexisNexis:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca7-on-bia-abuse-of-discretion-oluwajana-v-garland

CA7 on BIA Abuse of Discretion: Oluwajana v. Garland

Oluwajana v. Garland

“After an immigration judge ordered him removed from the United States, Olawole Oluwajana appealed to the Board of Immigration Appeals and retained counsel to represent him. But the government was slow in providing a copy of Oluwajana’s immigration file, without which his attorney could not prepare a brief. The Board granted one extension but denied a second, suggesting that Oluwajana instead submit his brief with a motion seeking leave to file it late. When he did so, less than two weeks after the submission deadline, the Board denied the motion in a cursory—and factually erroneous—footnote. And having rejected the brief, the Board upheld the removal order without considering Oluwajana’s allegations of error by the immigration judge. Based on the undisputed circumstances of this case, we conclude that the Board abused its discretion by unreasonably rejecting Oluwajana’s brief. We therefore grant the petition for review, vacate the Board’s order, and remand for further proceedings.”

[Hats off to Chicago Superlawyer Scott Pollock and Christina J. Murdoch!]

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Here, the BIA took 7 months to set a briefing schedule, didn’t get the file to counsel in a timely manner, then “dinged” the R’s counsel for being 12 days late in filing a brief on a complex issue where input from legal counsel would likely be “outcome determinative!”

But, along the way, “Garland’s Clown Show” 🤡 fabricated a 33 day “late period.” And, to add insult to injury, they ignored their own regulations and instructions to counsel.

Even OIL couldn’t defend this one! But, Garland nevertheless retains the “Miller Lite” Clowns from his predecessors’ “whatever it takes to deny and deport assembly line!”  No quality, no fairness, no accountability! Just “anything goes” when it’s “only immigrants of color!”

Briefing schedules aren’t “rocket science.” But Garland’s “Miller Lite” holdover gang can’t even get the simple stuff right!

How is this “expert judging” entitled to “deference?” 

How is having the Circuit spend time cleaning up Garland’s messes an acceptable use of Article III resources? 

What happens to the many human victims of Garland’s unjust and unprofessional system who don’t have Scott Pollock & Co. to take Garland to the Court of Appeals? 

What happens to Garland’s victims when the CA is on “autopilot,” which often happens?

Is it any wonder that “judges” who would rather fight with attorneys than read their briefs are running an astounding 1.6 million case backlog and an appellate backlog of 82,000, up approximately 7 times from just four years ago?

Wonder why an AG running a “second (or perhaps third or fourth) class justice system” for people of color isn’t a very effective leader or force for racial justice in America?

🇺🇸Due Process Forever!

PWS

03-11-22

😎⚖️🗽 NDPA SUPERSTAR 🌟 ELSY M. RAMOS VELASQUEZ WINS ANOTHER ROUND FOR THE SIAHAAN FAMILY! — “Temporary” BIA Appellate Immigration Judge Elise Manuel Issues Helpful Correct Guidance On Equitable Tolling, Ineffective Assistance In 4th Cir. MTR Context! — Why Is This The Exception, Rather Than The Rule @ Garland’s Dysfunctional EOIR?

 

Elsy M. Ramos Velasquez
Elsy M. Ramos Velasquez
Associate
Clark Hill PLC
D.C.

Elsy says “It is truly an honor to represent this family.” Here is a copy of Judge Manuel’s excellent decision:

Siahaan, Binsar_BIA Order Granting Motion to Reopen

 

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

For more on Elsy’s previous efforts on behalf of this family, see https://immigrationcourtside.com/category/pro-bono-representation/clark-hill-plc/elsy-m-valasquez-esquire/

Clear, concise, helpful, and correct. This is the type of guidance that should be in BIA precedents! It has the potential to “move” large number as of cases through Garland’s backlogged system. 

It would also deter ill-advised “bogus oppositions” to meritorious motions such as the one woodenly advanced by DHS in this case. They do it because sometimes they are rewarded by lousy EOIR judging. At worst, it’s a crap shoot as EOIR currently functions (or, in too many cases, malfunctions). 

Start consistently granting meritorious motions like this and the dilatory tactics from DHS will stop! In any system, particularly one as backlogged as this one, getting the Government to stop wasting judicial time and promoting bad results in a big step forward! 

The prior Administration made an all-out effort to institutionalize bias and bad judgment. Garland has been far, far too slow in exposing and rooting out this bad behavior!

Just look around for some helpful, positive “precedential” guidance from the BIA on equitable tolling in the Fourth Circuit. Let me know if you find any!

So what aren’t cases like this precedents? Why does Garland’s BIA instead keep publishing a steady stream of obtuse, poorly reasoned, anti-immigrant precedents written by Trump holdovers. These push IJs in the wrong direction, lead to prolonged wasteful litigation, reinforce the toxic “culture of denial,” create a “false narrative” that denies the merits of many respondents’ claims, and, worst of all, abrogate the BIA’s duty to insure fundamental fairness and due process for all! 

Where’s the positive guidance on how to grant gender-based and family-based asylum cases, building on the restoration of A-R-C-G- to clear out meritorious old cases?

Where’s the positive guidance on how to “leverage” PD and administrative closing to reduce backlogs? 

Where’s the positive precedent on expeditiously granting reopening in the many non-LPR cancellation cases mishandled by EOIR in light of Pereira and Niz-Chavez? 

Where’s the common sense workable rule on nexus that reflects “mixed motive” and incorporates ordinary concepts of causation while  jettisoning the prior Administration’s bogus “look for any motivation that doesn’t qualify, no matter how attenuated or contrived” approach?

Where’s the reasonable bond guidance that would promote consistency and end the routine practice of setting absurdly high bonds in some Immigration Courts?

Garland’s “Miller Lite Holdover” BIA continues to fail, flail, and betray the Administration’s promise to appoint better, more broadly experienced, representative Federal Judges at all levels, including the “retail level.” However, a number of his “Temporary” Appellate Immigration Judges continue to outshine and outperform their holdover colleagues. See, e.g., https://immigrationcourtside.com/2022/02/26/%f0%9f%91%a9%f0%9f%8f%bb%e2%9a%96%ef%b8%8f-temporary-appellate-judge-beth-liebmann-gets-it-right%f0%9f%98%8e-but-garlands-bia-majority-steamrolls/

With the available talent to reshape the BIA into a body that would actually fulfill the vision of “through teamwork and innovation be the world’s best tribunal guaranteeing fairness and due process for all” why does Garland continue to screw immigrants and build more backlog by treating “Miller Lite Holdovers” as if they were life-tenured judges? They aren’t! 

Although Garland appears to be in denial, “immigration judging” is some of the most consequential and important decision-making in the entire Federal Judicial System! Many, probably the majority, of those languishing in Garland’s out of control, largely self-created 1.6 million case EOIR backlog have strong claims to remain in a fair and efficient system. Yet, you would never know it by the indolent way Garland has handled the BIA mess (82,000 pending appeals) and his failure to speak out and lead by example on due process, fundamental fairness, racial justice, and human rights. 

A new, functioning, expert, star-studded BIA, dedicated to due process, fundamental fairness, equal justice, human rights, and best practices, would be a great starting place! A year into an Administration that should know better, it’s long, long overdue!

Meanwhile, Elsy and other talented, motivated, committed members of the NDPA will continue to pound and expose Garland’s dysfunctional “courts” at all levels of the judicial system until we get the change that we need and that was (falsely) promised!

🇺🇸 Due Process Forever!

PWS

03-10-22

 

  

💡WASHPOST EDITORIAL PRAISES MAYORKAS’S “COMMON SENSE” APPROACH TO PROSECUTORIAL DISCRETION!— But, Garland Has Failed To “Leverage” It In His Dysfunctional & “Uber Backlogged” Immigration Courts!🤯

From WashPost:

https://www.washingtonpost.com/opinions/2022/03/07/deportation-policy-needs-common-sense/

Few Americans favor mass deportations, and with good reason — a large majority of the estimated 10.5 million undocumented immigrants in the United States have been here for at least a decade, including more than 4 in 5 Mexican migrants. Many are fixtures in their community, with U.S. citizen spouses and children; the vast majority are employed, and some own their homes and businesses. 

So it was not a radical idea when Homeland Security Secretary Alejandro Mayorkas issued new enforcement guidelines last fall that urged deportation agents to focus their efforts on actual threats to public and national safety, as well as border security. As for long-term migrants, the bulk of whom are law-abiding, Mr. Mayorkas urged Immigration and Customs Enforcement officials to use some common sense. “The fact that an individual is a removable noncitizen should not alone be the basis of an enforcement action against them,” he said.

. . . .

Despite the resistance, however, they appear to be having a preliminary and positive effect of tailoring enforcement to unauthorized immigrants who are dangerous. In the first 13 months of the Biden administration, 44 percent of deported migrants had been convicted of felonies or aggravated felonies, compared with just 18 percent during the Trump administration, according to internal ICE figures. For the same period, there was also a sharp jump, compared with under the Trump administration, in the number of arrests of migrants who had earlier convictions for aggravated felonies.

At the same time, the number of migrants held in ICE detention facilities has dropped sharply. At the end of February, roughly 18,000 migrants were detained, and the vast majority had no criminal record or had committed only minor offenses, such as traffic violations, according to the Transactional Records Access Clearinghouse at Syracuse University. By contrast, nearly three times as many migrants were held for much of 2019, when the Trump anti-immigrant blitz was in full force.

. . . .

It’s not lax enforcement to refrain from arresting very old or very young migrants, or to think twice about a deportation that would tear apart a family. It’s an intelligent application of the law.

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

Read the full editorial at the link. 

The Post is right. But, unfortunately, by not making this “smarter PD” part of an overall plan to reduce backlogs, reform the Immigration Courts, re-establish the legal asylum and refugee systems, and end unnecessary detention, the Biden Administration has failed to take full advantage of this promising development. 

By “running” from immigration improvements rather than embracing them, they also fail to to get credit for replacing the “maliciously incompetent,” demonstrably not in the national interest Trump/Miller/Homan White Nationalist nativist policies with a functioning system that actually serves the national interest and works as well as can be expected without legislative reforms.

A major problem remains the underperformance of DOJ and EOIR under AG Garland. Without the enlightened leadership and better personnel that should now be in place, Garland has failed to “leverage and build upon” improvements in DHS enforcement priorities to slash backlog and advance due process at EOIR. 

Indeed, disturbingly, Garland has actually built new Immigration Court backlog at a record pace, while inexplicably relying on a “holdover Miller Lite” BIA that continues to deliver bad precedents, resulting in increased wasteful litigation and backlog-building remands from Circuit Courts. He has also ignored the many opportunities for harnessing the innovative ideas and high-level pro bono advocacy skills developed by the private sector in response to the “Trump onslaught” to dramatically advance and increase quality representation before the Immigration Courts.

The grotesque mismanagement of EOIR by the Trump DOJ resulted in a backlog of approximately 12,000 pending BIA appeals at the end of FY 2017 exploding to more than 84,000 by the end of FY 2020 — a mind-boggling 700% increase!  https://www.justice.gov/eoir/page/file/1248501/download

Yet, curiously, there has been no major personnel shakeup at EOIR under Garland. The Trump-era “hand selected” BIA whose skewed anti-asylum, anti-immigrant “jurisprudence” helped create this mess remains largely intact.

Most of the EOIR senior managers who helped DOJ engineer this unmitigated disaster remain in their jobs. Garland has sent a message that there will be no accountability for “going along to get along” with the White Nationalist war on immigrants and that he isn’t interested in expertise, fundamental fairness, creativity, or dynamic leadership by example in his reeling “court system!”

Gee whiz, Secretary Mayorkas recognizes the benefit of “partnering” with expert NGOs on solving problems with the support system for immigrants. See, e.g., https://www.dhs.gov/news/2022/03/09/dhs-announces-national-board-members-alternatives-detention-case-management-pilot

Yet, Garland continues to “blow off” and “lock out” the private/NGO sector experts who could bring rational professional docket management, higher representation rates, and resulting reductions in detention to his dysfunctional system. Instead, he continues the “Amateur Night at the Bijou” approach of unilateral “Aimless Docket Reshuffling” and endless “built to fail gimmicks” designed by bureaucrats to meet political agendas without meaningful input from and consideration of the views of those who have actual private sector experience litigating in his broken system.

How does the make sense? It doesn’t!

Of course, effective, dynamic, courageous management of EOIR to focus on constitutionally required due process would provoke reactions from the GOP nativist right, including obstructive litigation. That’s why Garland also needs better litigators at DOJ: Tough, experienced “due process warriors” who will aggressively and expertly defend and advance the Executive’s authority to rationally administer the law, allocate resources wisely and prudently, and to recognize and vindicate civil and constitutional rights that have been suppressed by GOP politicos and some of their reactionary Federal Judges.

Bottom line: Probably the majority of those 1.6 million individuals rotting in EOIR’s largely self-created backlog fit the Post’s “lead-in” description above: “Many are fixtures in their community, with U.S. citizen spouses and children; the vast majority are employed, and some own their homes and businesses.” 

Many could be granted asylum or other protection under proper interpretations of the law or granted “cancellation of removal” but for the unrealistic, anachronistic 4,000 annual “numerical cap” imposed by Congress decades ago. Others could be granted Temporary Protected Status (“TPS”) just as it recently was extended to Ukrainians in the U.S.

Very few are “criminals” or others who should be “priorities” for removal. Most are actively contributing to our society and many are paying taxes. In most cases, removing individuals in the EOIR backlog from the U.S., even if possible, would be a net loss for our society.

Yet, the uncontrolled, undifferentiated EOIR backlog prevents the Immigration Courts from working in “real time” on more recent cases that might actually be proper priorities. What’s the good of a more rational and professional system at DHS Enforcement if the Immigration Courts under Garland remain discombobulated? The system will not change without dynamic expert leadership at the top and an infusion of better judges, particularly at the appellate level where precedents are set and “best practices” and some measure of fair and consistent adjudication can be established and enforced. 

Immigration is a complex, often convoluted system. Without a comprehensive plan led by outside experts that fixes the Immigration Courts and restores a robust functional asylum system at our borders, the positive enforcement changes initiated by Mayorkas will continue to have limited impact. And, ironically, that will play right into the hands of the Millers and Homans of the world who would like to see democracy fail, irrationality prevail, and cruelty rule!

🇺🇸Due Process Forever!

PWS

03-09-22

🎊🎉🍾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!  

 

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

Weekly Briefing

 

Note: The briefing is back after a short hiatus while I transitioned to a new position at NIJC. It will be coming from my gmail for a few weeks while I set up a more long-term distribution system. In the meantime, please add egibson@heartlandalliance.org to your trusted contact list so that any future messages do not go to spam.

 

CONTENTS (click to jump to section)

  • PRACTICE ALERTS
  • NEWS
  • LITIGATION & AGENCY UPDATES
  • RESOURCES
  • EVENTS

 

PRACTICE ALERTS

 

eROPs: EOIR has begun digitizing some paper records of proceedings (ROPs). Once an ROP is an eROP, only ECAS electronic filing will be permitted on that case. However, this will be a lengthy process and it sounds like EOIR is prioritizing conversion of smaller records first.

 

TOP NEWS

 

Secretary Mayorkas Designates Ukraine for Temporary Protected Status for 18 Months

DHS: Individuals eligible for TPS under this designation must have continuously resided in the United States since March 1, 2022. Individuals who attempt to travel to the United States after March 1, 2022 will not be eligible for TPS.

 

USCIS to Offer Deferred Action for Special Immigrant Juveniles

USCIS: U.S. Citizenship and Immigration Services today announced that it is updating the USCIS Policy Manual to consider deferred action and related employment authorization for noncitizens who have an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, for Special Immigrant Juvenile (SIJ) classification but who cannot apply to adjust status to become a lawful permanent resident (LPR) because a visa number is not available.

 

Courts give dueling orders on asylum limits at border

AP: A federal appeals court on Friday upheld sweeping asylum restrictions to prevent spread of COVID-19 but restored protections to keep migrant families from being expelled to their home countries without a chance to plead their cases. Almost simultaneously, a federal judge in another case ruled that the Biden administration wrongly exempted unaccompanied children from the restrictions and ordered that they be subject to them in a week, allowing time for an emergency appeal.

 

Poor tech, opaque rules, exhausted staff: inside the private company surveilling US immigrants

Guardian: BI claims it provides immigrant tracking and ‘high quality’ case management. A Guardian investigation paints a very different picture. See also Over 180,000 Immigrants Now Monitored by ICE’s Alternatives to Detention Program.

 

Delays Are Taking a Costly Toll on Frustrated Workers

Bloomberg: The estimated wait time for a work permit has risen to eight to 12 months, up from about three months in 2020, according to data from U.S. Citizenship and Immigration Services.

 

Texas Border Op Expected To Grow Unless Feds Intervene

Law360: Texas’ Operation Lone Star border security initiative has expanded over the past year despite courtroom setbacks revealing cracks in its legal foundation, and it appears poised to grow further unless the federal government steps in to confront it.

 

LITIGATION & AGENCY UPDATES

 

SCOTUS: Wooden v. United States, relevant to “single scheme of criminal misconduct”

SCOTUS: “Wooden committed his burglaries on a single night, in a single uninterrupted course of conduct. The crimes all took place at one location, a one-building storage facility with one address. Each offense was essentially identical, and all were intertwined with the others. The burglaries were part and parcel of the same scheme, actuated by the same motive, and accomplished by the same means.”

 

Justices weigh the effect of foreign borders and national security in Bivens actions

SCOTUSblog: The Supreme Court on Wednesday [in oral arguments] returned to the scope of the right to sue federal officers for damages under Bivens v. Six Unknown Named Agents, in a case arising from events surrounding an (unfairly) disparaged inn and suspicious characters near the U.S.-Canada border.

 

CA4 on Changed Country Conditions: Hernandez V. Garland

Lexis: As we noted above, while (b)(4) requires “changed country conditions,” (b)(3) does not. Thus, the BIA’s reference to a “material change in country conditions” and the analysis that followed shows that the BIA applied § 1003.23(b)(4). In applying the standard of § 1003.23(b)(4) to a timely filed motion, the BIA acted contrary to law.

 

Unpub. CA6 Claim Preclusion Victory: Jasso Arangure v. Garland

Lexis: . After he pled guilty to first-degree home invasion, the Department of Homeland Security initiated removal. But the removal didn’t go as planned: DHS failed to show that Jasso was in fact removable, and the immigration judge terminated the proceeding. So DHS tried again. It started a second removal proceeding based on a new legal theory but the same underlying facts. The problem? The doctrine of claim preclusion prevents parties from litigating matters they failed to raise in an earlier case. Because claim preclusion barred the second removal proceeding, we grant the petition for review, vacate, and remand.

 

Massachusetts judge can be prosecuted for blocking immigration arrest, court rules

Reuters: A federal appeals court on Monday declined to dismiss an “unprecedented” criminal case filed during the Trump administration against a Massachusetts judge accused of impeding a federal immigration arrest of a defendant in her courtroom.

 

16 AGs Back Illinois Over Detention Contract Ban At 7th Circ.

Law360: Sixteen attorneys general of Democratic-led states, including the District of Columbia, are defending a new Illinois law phasing out immigrant detention contracts and urging the Seventh Circuit to dismiss a challenge by two Illinois counties, saying the policy does not interfere with federal enforcement of immigration law.

 

A.C.L.U. Lawsuit Accuses ICE Jailers of Denying Detainees Vaccines

NYT: People with health conditions that place them at high risk from Covid-19 have been denied access to coronavirus vaccine booster shots while in federal immigration detention, the American Civil Liberties Union said in a lawsuit filed on Tuesday.

 

U.S. to process some visas in Cuba after 4-year hiatus

Reuters: The U.S. Embassy in Havana announced on Thursday it would increase staffing and resume some visa processing in Cuba several years after the Trump administration slashed personnel at the facility following a spate of unexplained health incidents.

 

EOIR to Open Hyattsville and Laredo Immigration Courts

AILA: EOIR will open immigration courts in Hyattsville, Maryland, and Laredo, Texas, today, February 28, 2022. The Hyattsville and Laredo immigration courts will have 16 and 8 immigration judges, respectively. Both courts will hear transferred cases; EOIR is notifying parties whose locations have changed.

 

DHS Designates Sudan and Extends and Redesignates South Sudan for TPS

AILA: Due to conflict in both regions, DHS will extend and redesignate South Sudan for TPS for 18 months, and designate Sudan for TPS for 18 months. The extension and redesignation of South Sudan is in effect from 5/3/2022, through 11/3/2023. The memo details eligibility guidelines.

 

Lockbox Filing Location Updates

AILA: USCIS announced that its website will now feature a Lockbox Filing Location Updates page, where customers can track when lockbox form filing locations are updated. Updates will also be emailed and announced on social media.

 

M-274 Guidance Updates: Native American Tribal Documents and Victims of Human Trafficking and Criminal Activity

USCIS: USCIS has clarified Form I-9 guidance related to Native American tribal documents.  We also published new guidance regarding T nonimmigrants (victims of human trafficking) and U nonimmigrants (victims of certain other crimes) in the M-274, Handbook for Employers.  USCIS has provided these updates to respond to customer needs.

 

RESOURCES

 

 

EVENTS

 

 

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

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Thanks for all you do for due process and fundamental fairness in America, Liz! And congrats again to both you and NIJC/Heartland Alliance on your new position!

My good friend Heidi Altman, Director of Policy at NIJC, should be delighted, as Liz is a “distinguished alum” of both the CALS Asylum Clinic at Georgetown Law (where Heidi was a Fellow) and my Refugee Law & Policy class. Liz also served as an Arlington Intern and a Judicial Law Clerk at the NY Immigration Court. Liz has been a “powerful force for due process, clear, analytical writing, and best practices” wherever she has been! So, I’m sure that will continue at NIJC! Clearly, Liz is someone who eventually belongs on the Federal Bench at some level.

Heidi Altman
Heidi Altman
Director of Policy
National Immigrant Justice Center
PHOTO: fcnl.org

Liz’s mention under “Litigation” of the Supremes’ decision in Wooden v U.S., where Justice Kagan for a unanimous Court interpreted the term “single occasion” broadly in favor of a criminal defendant, raises an interesting immigration issue.

Two decades ago, in Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), the BIA basically “nullified” the INA’s statutory exemption from deportation for multiple crimes “arising out of a single scheme of criminal misconduct.” Rejecting the 9th Circuit’s contrary ruling, the BIA essentially read the exception out of the statute by effectively limiting it to lesser included offenses.

How narrow was this interpretation? Well, in 21 years on the immigration appellate and trial benches, I can’t recall a single case where the “scheme” did not result in deportation under Adetiba. Taking advantage of the outrageous “doctrine of judicial task avoidance” established by the Supremes in the notorious “Brand X,” the BIA eventually took the “super arrogant” step of nullifying all Circuit interpretations that conflicted with Adetiba! Matter of Islam, 25 I&N Dec. 637 (BIA 2011).

Surprisingly, in my view, in his concurring opinion in Wooden, Justice Gorsuch actually applied the “rule of lenity” — something else the “21st Century BIA” has basically “read out of the law” in their haste to deport! Here’s what Justice Gorsuch said:

Today, the Court does not consult lenity’s rule, but neither does it forbid lower courts from doing so in doubtful cases. That course is the sound course. Under our rule of law, punishments should never be products of judicial conjecture about this factor or that one. They should come only with the assent of the people’s elected representatives and in laws clear enough to supply “fair warning . . . to the world.” McBoyle, 283 U. S., at 27.7

This language is directly relevant to Hon. “Sir Jeffrey” Chase’s recent article on why the term “crime involving moral turpitude” under the INA is unconstitutionally vague! See https://immigrationcourtside.com/2022/03/04/cimt-practical-scholar-sir-jeffrey-chase-⚔%EF%B8%8F🛡-explains-how-a-supreme-constitutional-tank-from-71-years-ago-continues-to-screw/

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

As the ongoing (“backlog enhancing”) “Pereira fiasco” shows, the BIA has had little problem “blowing off” or distinguishing the Supremes to deport or deny when asked by DHS Enforcement to do so. Today’s BIA “rule” for interpreting supposedly “ambiguous” statutes is actually straightforward, if one-sided: Adopt whatever interpretation DHS Enforcement offers even if that means “taking a pass” on a better interpretation offered by the respondent. So, I’m sure that Garland’s current “Miller Lite” BIA will simply distinguish Wooden as dealing with statutory language different from the INA and ignore its broader implications if asked to do so by “their partners” at DHS Enforcement.

But, whether all Circuits will see it that way, and/or allow themselves to continue to be humiliated by “Brand X,” or whether the issue will reach the Supremes, are different questions. In any event, immigration advocates should pay attention to Wooden, even if the BIA is likely to blow it off.

The current Supremes don’t seem to have much difficulty jettisoning their own precedents when motivated to do so! Why they would continue to feel bound by the bogus “Chevron doctrine” or its “steroid laden progeny Brand X” to follow the interpretations of Executive Branch administrative judges on questions of law is beyond me! Somewhere Chief Justice John Marshall must be turning over in his grave!

🇺🇸 Due Process Forever!

PWS

03-08-22

 

 

 

 

 

😒LOOKING THE OTHER WAY @ GARLAND’S DOJ:  ☠️ Deadly Civil & Human Rights Violations Inflicted On Individuals Of Color By DHS/DOJ’s “New American Gulag!”

Alexandra Martinez
Alexandra Martinez
Senior Reporter
Prism
PHOTO: Prism

https://notify.dailykos.com/ss/c/atcYNHk4Eh2YdGnwBh-YDCxDIu4OO3SBv2TLoLPFt2czW0dtkj0znJv8y4_fpHhZU-HKs2U4–r_uxxFUTYhHuROxyBNaXybIMjYeD4ksiM97Shwx3b4Hq5WHNh5rUrm37DeupxU-lbnh-mAH_2w53MFbvc01bSsPa27VYNOiTFTIZoVASZIjao4JD7V00kVtSWTDOR1EfZJMNtRdbyStg/3k5/0Fp_rVbkQQqEJZKJd3JlJg/h4/jpbX9uAFBiBfKOSRVHl30U7E_t1pnXvo0RlNJi-44fA

In the early morning on Feb. 4, Jose boarded a packed airplane in Illinois filled with handcuffed immigrant detainees just like him. They were en route to another detention center in Oklahoma after theirs was ordered close. During the hour-and-35-minute flight, several people appeared ill, coughing and sniffling, but no one was able to socially distance. A few days later, Jose began experiencing the worst kind of sickness he had ever felt. He had contracted COVID-19. Jose joins the 1,126 other immigrants in Immigration and Customs Enforcement (ICE) detention who are currently being monitored and tested positive for the virus, representing a 395% surge in COVID-19 cases since January when there were only 285 reported cases.

“I was scared at one point. I’ve never been sick like that in my life,” Jose said. “I thought, ‘I’m going to die here.’”

Jose, who has asked to withhold his last name to protect his identity, is 25 years old and has lived in the U.S. since he came with his parents from Mexico at age seven; he has been in immigration detention for three months. He was originally detained in Illinois at McHenry County Jail, but when Illinois Gov. J.B. Pritzker signed the Illinois Way Forward Act, banning private and county-run immigration detention, Jose was one of 17 people from McHenry County Jail transferred to the Kay County Jail in Oklahoma.

“We really want to focus on getting releases and getting folks out of detention, instead of transfers to another facility,” said Gabriela Viera, advocacy manager at the Detention Watch Network. “We need to continue shutting down facilities until we are in a place where there are no more facilities for people to be transferred to.”

Another person in a different immigrant detention center, Jorge, was transferred from a facility in New York to Krome Detention Center in Homestead, Florida. According to advocates from the Queer Detainee Empowerment Project, he was exposed to COVID-19 and tested positive for the virus. Jorge has confirmed widespread reports that there is a complete disregard for the virus within the detention center, with no access to hand sanitizer or vaccines.

According to the National Immigrant Justice Center, both McHenry County Jail and the Jerome Combs Detention Center in Kankakee County experienced COVID-19 outbreaks among the ICE population at the time of these transfers. Advocates, public health experts, and members of Congress raised the alarm to Chicago Field Office Director Sylvie Renda in the days before the transfers about the risks of moving people to jails out of state under these circumstances, but ultimately, about 30 people were transferred from McHenry and Kankakee to Oklahoma, Indiana, and Texas.

“There was no distance between us,” Jose said. “When we got there, they just put us all in the dorm room.”

About four days after arriving in Oklahoma, Jose began feeling sick. His body ached, his sinuses were congested, and he had difficulty standing, especially during routine phone calls where there are no chairs provided. The extreme cold at night only worsened his symptoms, and he developed body shivers, chest pain, and a fever. He put in two requests to see the medic before he was finally tested for COVID-19 and confirmed that he had the virus.

“They’re not testing people regularly, and they’re not socially distancing, they’re not providing people with sufficient hygiene products,” said Diana Rashid, National Immigrant Justice Center’s managing attorney, who is representing Jose in his release request. “The spread is just going to continue.”

The medic gave him fever-reducing medication and vitamin D. He was returned to his 20-person pod and was told to remain in his bunk and try to self-isolate within his dorm room the size of a small basketball court.

“I thought they were going to move me to a cell alone,” Jose said. “But, they just left me in the room. I think I even got someone else sick.”

Jose is now recovering and feels better, but at least one other person has tested positive, with a total of nine positive cases in the detention center, according to ICE. But, Jose says that number may be even larger due to underreporting. When a person tests positive, they are put under quarantine for 10 days, meaning they cannot interact with other pods. Even worse, they are not taken out of their rooms for their court hearings, postponing an already delayed process and forcing them to stay in detention longer than necessary. According to Rashid, it would take about two to four weeks to get the first hearing in Chicago’s immigration court after a person is first detained.

“Everyone’s cases stalled for those who are in quarantine,” said Rashid.

Jose, who has been in quarantine for a majority of his detention, says that people are getting frustrated and desperate with the continued prolonging of their cases. Some are even considering signing the removal papers out of desperation.

“I just want to go ahead with my court proceedings and get out of here,” said Jose. “I want to make it to the light at the end of the tunnel.”

Immigration advocates hope more states will follow Illinois and close their detention centers. A total of 41 people were released from these jails during January in Illinois, but they believe that everyone, including Jose, should have been released on the current ICE enforcement memo guidelines. Advocates are also continuing to push for Congress to cut funding for immigration detention and enforcement and hope to invest in vital programs that uplift their communities instead, like health care, affordable housing, and education.

Prism is a BIPOC-led non-profit news outlet that centers the people, places, and issues currently underreported by national media. We’re committed to producing the kind of journalism that treats Black, Indigenous, and people of color, women, the LGBTQ+ community, and other invisibilized groups as the experts on our own lived experiences, our resilience, and our fights for justice. Sign up for our email list to get our stories in your inbox, and follow us on Twitter, Facebook, and Instagram.

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

Assistant Attorney General, Civil Rights, Kristen Clarke looks for civil rights violations by state and local governments. Yet, she studiously ignores those being committed in broad daylight by her boss’s dysfunctional and biased Immigration Courts and the immigration detention empire he enables, supports, and defends.

As Alexandra’s report notes, one well-known result of prolonged detention in intentionally unsafe and substandard conditions is to “duress” individuals into giving up legal rights. Could there be a clearer violation of our Constitution going on right under Garland’s nose?  I doubt it! But, no stand against these clear abuses. It’s as if “Gonzo” Sessions, “Billy the Bigot” Barr, and “Gauleiter” Stephen Miller were still calling the shots for Garland!

Gulag
“The New American Gulag” (“NAG”) operates right under the noses of civil rights honcho Kristen Clarke and her boss AG Merrick Garland with their blessing. Indeed, they have “embedded courts” in the NAG! So much for the  Biden Administration’s commitment to civil rights. GULAG PHOTO: Public Realm.

 

 

Almost from the “git go,” the Biden Administration has avoided dealing effectively and honestly with the “second (or third) class justice system” being inflicted by the DOJ, disproportionately targeting individuals of color and ethnic communities in America! It’s a rather glaring case of “do as I say, not as I do” that doesn’t appear to have escaped the notice of some Trump Article III judges. They turn the DOJ’s spineless “Dred Scottification” and “Miller Lite” actions and arguments back against them to undermine racial justice, fundamental fairness, and truth in all areas.

In a truly revolting🤮, yet highly revealing, interview with Savannah “Why Am I Giving Air Time To This Bad Dude” Guthrie on today’s Today Show, “Billy the Bigot” Barr made it clear that he considers corruption, lies, fascism, racism, and the final destruction of American democracy a “small price to pay” to fight the “real problem:” Progressive, humane, values-based governance in the common public interest. 

But, somehow, Garland and others in the Biden Administration see no reasons to take a stand against this dangerous nonsense! 

Remember folks, BTB is the overt racist who casually and glibly told Lester Holt  that “Black Lives Matter” is the “Big Lie!” He knows there will be no accountability for GOP enablers like him! Who’s the next “exclusive” for the NBC News crew, the Grand Dragon of the KKK? And, you can bet that if empowered again, the GOP will have no problem reviving the “White Nationalist Clown Show”🤡 @ DOJ. 

That leaves the fight for the future of our nation to the NDPA and others who believe that America doesn’t necessarily have to spiral downhill into a “MAGAland” grave, ⚰️ but could actually become something better than we are today! It’s not a given that we can build a better nation and a better world, but it is a possibility. 

Will the next generation stand up for a better future for everyone, or fulfill the nasty, backward-looking vision of lies, hate, and intolerance that BTB and the rest of the GOP right have mapped out for them?

🇺🇸Due Process Forever!

PWS

03-07-22

🤡 “BILLY THE BIGOT” BARR PULLED UP IN A CLOWN CAR 🤡🚗 & UNLOADED HIS CLOWN SHOW 🤡🎪 @ THE DOJ — Garland Has Chosen To Largely Leave The “Big Top” 🎪🤹‍♀️In Place!

Barr Departs
Lowering The Barr by Randall Enos, Easton, CT
Republished By License
Dana Milbank
Dana Milbank
Opinion Columnist
Washington Post

From Dana Milbank @ WashPost:

https://www.washingtonpost.com/opinions/2022/03/04/bill-barr-book-trump-clown-show/

 . . . .

In real time, Barr jettisoned Justice Department norms and authorized the department to open election-fraud investigations before the tallies were certified. Barr, who had falsely asserted that mail-in voting was vulnerable to counterfeit foreign ballots, did allow at one point that the Justice Department hadn’t found enough fraud to change the election outcome — “to date.” But his sycophantic departure letter (“you built the strongest and most resilient economy in American history”) said “these allegations will continue to be pursued.”

Had Barr spoken out publicly about Trump’s “clown show,” perhaps he could have punctured the “big lie” before it resulted in the Jan. 6 insurrection. Barr didn’t even speak out during Trump’s impeachment, instead offering his self-serving view 14 months later while hawking his book — after Trump managed to get the bulk of the Republican electorate to accept the “big lie” as an article of faith.

Barr is just the latest in the parade of former Trump officials to wash their hands of him long after their public condemnation would have done any good: John Bolton, John F. Kelly, Rex Tillerson, Jim Mattis, Reince Priebus, Nikki Haley, Gary Cohn, Omarosa Manigault Newman, Michael Cohen, Anthony Scaramucci, H.R. McMaster and many more.

But nobody in the administration did more to enable Trump’s deceptions and assaults on democracy than Barr. He buried the Mueller report while issuing a public summary that misrepresented it; he alleged the Obama administration “spied” on the Trump campaign, and he appointed a prosecutor who is, years later, still trying to prove true Trump’s paranoid fantasy; he scoured the world for evidence to discredit the Trump-Russia probe; his Justice Department gave credibility to Rudy Giuliani’s ravings about the Bidens in Ukraine; he tried to give favorable treatment to Trump cronies Michael Flynn and Roger Stone; he justified the violent assault on peaceful demonstrators in Lafayette Square; he made unfounded allegations against “antifa” and assembled a militia-like force of often-unidentified federal police in D.C. And on, and on.

Now Barr wants to be remembered as the brave figure who spoke truth to power? Talk about a clown show.

🤡🤡🤡🤡🤡🤹‍♀️🤹‍♀️🤹‍♀️🤹‍♀️🤹‍♀️

Barr’s attempted self-justification would be funny if the consequences of his silence hadn’t been so dire. He allowed Trump to pull off a democracy-defying swindle.

. . . .

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

Read  Milbank’s full article at the link.

There were plenty of folks @ DOJ who “went along to get along” with the Sessions/Barr radical right-wing scheme to deconstruct justice with a series of lies, racially charged false narratives, questionable, arguably frivolous, presentations to Federal Courts, use of pretexts, discrediting of civil rights and free and fair elections, and undermining or outright violations of both domestic laws and international conventions protecting the human rights of migrants.

Others were installed or promoted within Justice because of their actual or perceived willingness to run over the law, truth, and often human dignity, to further the far-right agenda. In other words, they would elevate loyalty to the Trump agenda over their duty to the U.S.  Constitution!

What, exactly, has AG Garland done to “clean house”🧹 and restore the rule of law, Government ethics, fundamental fairness, and due process for migrants? Good question!🤨

In the meantime, notwithstanding his pathetic, outrageous, disingenuous, attempt at rehabilitation “BTB” Barr should go down in history as exactly the divisive, dishonest, neo-fascist, theocrat sleaze-ball that he is!🤮

And, Garland will be judged by what he does to reject and reform the mess @ Justice left by his predecessors. In that respect, “Miller Lite” won’t do it.

Miller Lite
This might be Garland’s vision for justice, but to the NDPA, “no way!” 

🇺🇸Due Process Forever!

PWS

03-06-22

🤯TITLE 42 MADNESS: Even As DC Circuit Bars Returns To Persecution &/Or Torture, Trump Federal Judge In Texas Abuses Children!🤮☠️ — Circuit Findings Of Illegal Returns To “Stomach-Churning” Conditions & No Evidence Supporting Bogus Title 42 Orders Fails To Motivate “Robed Ones” To Reinstate The Rule Of Law! — Meanwhile, In Texas, Rogue Righty Judge Takes Over Immigration, Targets Vulnerable Kids For Rape, Torture, Death!

“Floaters”
Trump Judge Mark T. Pittman has a very explicit vision of the future for brown-skinned children seeking protection from “White Nationalist Nation.”
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

Here’s the DC Circuit Decision:

https://www.cadc.uscourts.gov/internet/opinions.nsf/F6289C9DDB487716852587FB00546E14/$file/21-5200-1937710.pdf

Here’s the decision by Trump scofflaw U.S. District Judge Mark T. Pittman:

https://storage.courtlistener.com/recap/gov.uscourts.txnd.347182/gov.uscourts.txnd.347182.100.0_1.pdf

Here’s a link to “Instant Twitter Analysis” by Aaron Reichlin-Melnick, Policy Counsel at the American Immigration Council:

Aaron Reichlin-Melnick
Aaron Reichlin-Melnick
Policy Counsel
American Immigration Council
Photo: Twitter

https://twitter.com/reichlinmelnick/status/1499891832569876481?s=21

ThreadOpen appSee new TweetsConversationAaron Reichlin-Melnick@ReichlinMelnick🚨Absolute madness. The same day the DC Circuit rules that families can’t be expelled under Title 42 to places they will be persecuted, a federal judge in Texas just overruled the CDC and ordered the Biden administration to expel unaccompanied children. https://storage.courtlistener.com/recap/gov.uscourts.txnd.347182/gov.uscourts.txnd.347182.100.0_1.pdf…

. . . .

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

Read the rest of Aaron’s feed at the link.

Although the DC Circuit basically confirmed that the evidence produced by plaintiffs showed illegal returns to death and that there was little, if any, support for the draconian Title 42 exclusion order, the relief granted was unacceptably narrow. The order merely directed the Administration to cease returning individuals to countries where they would be persecuted or tortured.

That order is weak because:

  • It doesn’t specify any particular fair procedure that must be followed by DHS in determining who faces persecution or torture. That appears to leave open the possibility of DHS employing bogus “summary determinations by enforcement agents” rather than using Asylum Officers and having cases referred to Immigration Courts.
  • There are no limits on the Government’s ability to detain individuals and/or return them to other countries.
  • The standard for so-called “withholding of removal” to persecution is “more likely than not” as opposed to the more generous “well-founded fear” or “reasonable possibility” standard for asylum (although individuals should be able to invoke the regulatory “presumption of future persecution” arising out of past persecution).
  • Even if granted, withholding of removal does not provide individuals with “durable legal status” nor does it allow them to access the asylum system, from which they apparently would remain barred under Title 42.

Judge Mark T. Pittman of the Northern District of Texas is a Trump appointee with strong ties to the Federalist Society and a very loose grasp on domestic and international laws and procedures for protecting children.

It’s interesting, if disheartening, to compare the “overt wishy-washiness” of the DC Circuit Judges who were timidly, “sort of” trying to protect at least some minimal legal and human rights with the “in your face,” overtly anti-immigrant, arrogant tone and ridiculous self-assuredness with which activist righty District Judge Mark Pittman advanced his absurdist notion that the White Nationalist agenda of “protecting” America from the “non-threat” of brown-skinned children merited his simultaneous assumption of the roles of President, Secretary of DHS, Attorney General, and for a good measure, Congress.

Obviously, the “judicial restraint,” supposedly a hallmark of modern conservatism, was just a “smoke screen” for the GOP’s activist anti-social, anti-immigrant, racially charged agenda. That’s not news to many of us, although it seems to have gone “over the head” of many in the Biden Administration and many Dems on the Hill.

It shows once again why “Team Garland’s” indolent, often uninformed, and floundering approach to immigrant justice under law is being steamrolled by Trump holdovers and crusading right-wing Federal Judges. And, you wonder why Dems can’t figure out what they stand for and what their “line in the sand” is!

Meanwhile, back at the ranch, Garland and other weak-kneed Biden officials can’t decide how much of the leftover “Miller Lite” anti-asylum, anti-humanitarian, anti-due-process policy they want to retain and defend and how much effort, if any, they want to put into re-establishing human rights and the rule of law.

One observation: After more than one-year in office, the Biden Administration is no closer to having an orderly, functional, due-process-oriented asylum system in place and ready for the border than they were on January 20, 2021! The expert Asylum Officers and qualified Immigration Judges who are necessary to operate such a system are still few and far between, and the program to facilitate legal assistance for those seeking legal protection at the border is all but non-existent.

🇺🇸Due Process Forever!

PWS

03-05-22

👎🏽IN RACE TO DENY, BIA BLOWS BY OWN REGS IN LATEST 4TH CIR. REJECTION! — Garcia-Hernandez v. Garland (Changed Country Conditions) — Congrats To Ben & Alex!😎🗽⚖️

Kangaroos
“Every day is ‘Kangaroo Field Day’ @ Garland’s DOJ!” When it comes to immigrant justice, “good enough for government work” is the mantra!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca4-on-changed-country-conditions-garcia-hernandez-v-garland

Dan Kowalski reports from LexisNexis Immigration Community:

CA4 on Changed Country Conditions: Garcia Hernandez v. Garland

Garcia Hernandez v. Garland

“The BIA “affirm[ed] the Immigration Judge’s decision to deny reopening because the respondent has not sufficiently demonstrated that his brother’s murder represents a material change in country conditions that would affect his eligibility for asylum.” A.R. 4. As we noted above, while (b)(4) requires “changed country conditions,” (b)(3)does not. Thus, the BIA’s reference to a “material change in country conditions” and the analysis that followed shows that the BIA applied § 1003.23(b)(4). See A.R. 4. In applying the standard of § 1003.23(b)(4) to a timely filed motion, the BIA acted contrary to law. … The question for the BIA to consider in evaluating Garcia Hernandez’s motion to reopen was whether Garcia Hernandez offered, in the proper from and with the appropriate contents, evidence that was material and not previously available at the initial hearing. 8 C.F.R. § 1003.23(b)(3). Because the BIA did not analyze that question, and instead evaluated the issue under § 1003.23(b)(4), the BIA abused its discretion. … The BIA held that Zambrano did not apply because the changed circumstances there took place before the petitioner filed a time-barred petition even though here, the purported changed circumstances took place after the time-barred petition was filed and adjudicated. But nothing in Zambrano suggests its holding or reasoning was limited in the way the BIA suggests. Thus, Zambrano’s framework in examining changed circumstances should have been applied to Garcia Hernandez’s asylum application. … [W]e grant Garcia Hernandez’s petition for review. We vacate and remand with instructions to the BIA to consider Garcia Hernandez’s motion to reopen under the appropriate standard. The BIA should also address Garcia Hernandez’s asylum application under the framework of Zambrano and conduct any further proceedings consistent with this opinion.”

[Hats off to Benjamin J. Osorio and Alexandra Ribe!]

pastedGraphic.png pastedGraphic_1.png

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

Many congrats to Ben and Alex, who were both “regulars” at the Arlington Immigration Court! Alex is also a former Arlington Intern and a “charter member” of the NDPA!😎 

The 4th Circuit decision was written by Judge Marvin Quattlebaum, a Trump appointee, for a unanimous panel that  included Judge Motz and Judge Thacker. While Judge Q doesn’t always “get it right,” his cogent analysis of the BIA’s lawless behavior in this case is “spot on.”

How does a supposedly “expert” tribunal like the BIA blow the “easy stuff” — like following their own regulations? Clearly it has something to do with an unduly permissive “haste makes waste/rush to deny” anti-immigrant culture at EOIR that Garland has not effectively addressed!

Another obvious problem: Why were Garland’s lawyers at OIL defending this obviously wrong decision?  You don’t have to be an “immigration guru” to read the regulations! 

Sadly, it’s not the first time under Garland that OIL has chosen to waste judicial resources and undermine our justice system by “defending the indefensible.” It’s what happens when leaders promote an “anything goes/no accountability/good enough for government work” atmosphere!

There are deep substantive, structural, personnel, attitude, and “cultural” problems at EOIR and DOJ. That, over his first year in office, Garland has chosen to ignore these glaring malfunctions of justice @ Justice is an ongoing national disgrace!🤮 

It doesn’t have to be this way! But, unfortunately, it is! And, even more disturbingly, no meaningful improvements appear to be on the horizon! That’s a deadly ☠️⚰️ outlook for American justice and for those poor souls caught up in Garland’s unfair, broken, dysfunctional “court” system that bears little resemblance to any commonly understood notion of what a fair, impartial, subject matter expert court should be in America!🤯

🇺🇸 Due Process Forever!

PWS

03-04-22

🏴‍☠️👨‍⚖️OF COURSE, “COURTSIDERS” ALREADY KNOW THIS: Trump/GOP’s “Imperial Radical Right Judiciary” Is An Existential Threat To Our National Security!🤮 — “But [Judge Reed] O’Connor does not sit in a sane circuit; he sits in the 5th Circuit.”

Mark Joseph Stern
Mark Joseph Stern
Reporter, Slate

Slate’s Mark Joseph Stern in Apple News:

https://apple.news/AujRHyBwwShCnyl6hPF–zg

Trump Judges Are Now a Threat to America’s National Security

The 5th Circuit let a lone judge order the deployment of unvaccinated SEALs. High-ranking officers say the decision puts the world at risk.

MARCH 1 2022 6:55 PM

On Monday, the 5th U.S. Circuit Court of Appeals issued a stunning decision transferring control over the Navy’s special operations forces from the commander-in-chief to a single federal judge in Texas. The 5th Circuit’s decision marks an astonishing infringement of President Joe Biden’s constitutional authority over the nation’s armed forces, directing him to follow the instructions of an unelected judge—rather than his own admirals—in deploying SEALs. High-ranking military personnel have testified under oath that this power grab constitutes a direct threat to the Navy’s operational abilities. As Russia invades Ukraine and declares a nuclear alert, Donald Trump’s judges are actively threatening America’s national security.

Like so many lawless cases in the 5th Circuit, this dispute began in the courtroom of U.S. District Judge Reed O’Connor. A notorious George W. Bush nominee, O’Connor is best known for attempting to abolish the Affordable Care Act in 2018, then getting reversed by a 7–2 vote at the Supreme Court last year. So when 35 Navy Special Warfare service members refused to comply with Biden’s COVID-19 vaccine mandate for the armed forces, they brought their case to O’Connor. These service members—mostly SEALs, all represented by the far-right First Liberty Institute—claimed that their religious beliefs barred them from getting the shots. (Some said they heard “divine instruction not to receive the vaccine”; others asserted that the mRNA vaccines altered “the divine creation of their body by unnaturally inducing production of spike proteins.)

O’Connor predictably sided against Biden in January, granting a preliminary injunction of staggering scope on the grounds that the mandate violates the Religious Freedom Restoration Act. He awarded himself sweeping authority over the assignment of the plaintiffs, forcing the Navy to deploy them with operational units. When several plaintiffs were denied transfer to a duty station, they asked O’Connor to sanction the government for allegedly violating his order; he promptly ordered the Justice Department to explain why it should not be punished for failing to deploy these service members. (O’Connor has not yet decided whether to impose sanctions.)

As of today, this lone judge continues to oversee the plaintiffs’ assignments, forcing the Navy to train, equip, and deploy unvaccinated troops—with granular specificity as to their exact stations and duties.

Never before in the history of the United States has one district court judge exercised so much control over the armed forces. The Constitution assigns this authority to Congress and the president. There are certainly legal limits on executive discretion, including due process and constitutional safeguards against invidious discrimination. Right-wing lawyers have typically been loath to acknowledge any restrictions on the president’s war powers. Indeed, the conservative legal movement has endorsed a near-limitless vision of the commander-in-chief: Republican presidents, lawyers, and judges have argued that the Constitution allows the president to deploy troops without congressional approval, indefinitely detain enemy combatants, and exclude entire classes of immigrants from the country. But now it seems they draw the line at a simple vaccine requirement—even though all service members were already required to have at least nine vaccines upon enlistment.

Setting aside this hypocrisy, O’Connor’s order violated a fundamental principle of judicial restraint: Federal courts have long held that specific military assignments are never subject to judicial review. O’Connor appears to be the first judge ever to rule that, in fact, the courts can compel the armed forces to deploy a specific service member to a specific location to perform a specific duty. If his court were in a sane circuit, this unprecedented intrusion on the president’s power would be quashed almost instantly.

But O’Connor does not sit in a sane circuit; he sits in the 5th Circuit. This rogue court is now dominated by Trump judges, and it is breaking every rule to hobble Biden’s presidency. The government’s request for a stay landed in the laps of two infamous Trump judges, Stuart Kyle Duncan and Kurt Engelhardt, along with Edith Jones, an infamously partisan Ronald Reagan nominee.

In an unsigned opinion that bristled with hostility against the COVID-19 vaccine, this panel agreed that the mandate violated religious liberty. Noting that most service members are vaccinated, the panel declared that the Navy lacks the “paramount interests” necessary to overcome anti-vaxxers’ religious objections. It questioned the “efficacy” of the vaccine, noting that “the USS Milwaukee was ‘sidelined’ in December 2021 by a COVID-19 outbreak despite having a fully vaccinated crew.” (Unmentioned was the fact that the crew’s vaccination status prevented even more transmission and serious illness.) The panel then found that the Navy will not be “irreparably harmed” by O’Connor’s order. And it concluded that the “public interest” lies in keeping the plaintiffs unvaccinated.

. . . .

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Alfred E. Neumann
Don’t expect this lackadaisical attitude from the next far-right GOP Attorney General to “own” the U.S. Immigration Courts — America’s “retail level” judiciary!
PHOTO: Wikipedia Commons

 

 

 

 

Read the full story at the link. 

Don’t imagine that the right-wing activist Supremes’ majority will “reign in” the 5th Circuit. Nope, they are hard at work eradicating civil rights, voting rights, “Dred Scottifying” folks of color, and insuring the eventual environmental collapse of civilization as we have known it! https://www.theguardian.com/commentisfree/2022/feb/28/us-supreme-court-rightwing-climate-crisis?CMP=Share_iOSApp_Other

There isn’t anything that Biden and the Dems can do in the short run to change the scofflaw trajectory and composition of the 5th and the Supremes.

But, there is a powerful, nationwide, precedent-setting  “Trump-oriented retail level ‘judiciary’” — with trial and appellate divisions and control over millions of lives and futures — that they have the power to immediately reform: The U.S. Immigration Courts “housed” within the DOJ’s EOIR!

Too bad for the rule of law and the future of democracy, not to mention the millions of individual human lives and futures at stake, that Garland and his lieutenants aren’t “up to” the job!

Progressives shouldn’t expect the same lack of will, defective focus, and clueless complacency the next time the radical GOP right takes over ownership of the DOJ! When it comes to the interrelated problems of immigration, human rights, civil rights, and immigration judicial reform in the 21st Century, fecklessness and underperformance are exclusive characteristics of Dem Administrations!👎🏽☹️🤯

🇺🇸 `Due Process Forever!

PWS

03-03-22