Attorney General Merrick Garland – Page 31

🗽PROFESSOR GEOFFREY A. HOFFMAN @ U HOUSTON LAW REPORTS: Round Tablers ⚔️🛡Chase, Schmidt Among Headliners @ Recent Judge Joseph A. Vail Asylum Workshop!

Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

https://www.law.uh.edu/news/spring2022/0207Vail.asp

Joseph A. Vail Asylum Workshop shares valuable immigration insights in the era of the Biden Administration

Retired Immigration Judge, U.S. Immigration Court and Former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt discusses growing immigration court backlogs.

Feb. 7, 2022 – More than 350 practitioners attended the annual Joseph A. Vail Asylum Workshop recently. The four-hour virtual event held on Jan. 28 was presented by the University of Houston Law Center’s Immigration Clinic and co-sponsored by Interfaith Ministries of Greater Houston. Interfaith Ministries joined this year to shed light on the plight of Afghani refugees who have settled in Houston since the government in Afghanistan collapsed and the Taliban takeover.

The goal of the workshop was to provide an update on immigration practices since President Biden took office. For example, while Biden halted the building of the border wall between the U.S. and Mexico and removed Migrant Protection Protocols (MPP) – where asylum seekers must remain on the Mexican side of the border while awaiting U.S. immigration court dates – a federal court order forced MPP to be reinstated. Immigration court backlogs continue to grow with former Board of Immigration Appeals Chairman Paul W. Schmidt predicting them reaching over 2 million by the end of 2022.

The first panel, moderated by Immigration Clinic Director Geoffrey Hoffman, explored the Biden Administration’s focus on Prosecutorial Discretion, Deferred Action for Childhood Arrivals (DACA), Migratory Protection Protocols (MPP), recent circuit court decisions, Afghan and Haitian case precedents, and immigration court backlogs.

“I hope you are emboldened to take a pro-bono client,” said Hoffman. “You can reach out to any of us on this call and use us as mentors.”

Panelist Magali Candler Suarez, principal at Suarez Candler Law, PLLC warned practitioners that Title 42 – a public health and welfare statue that gives the Center for Disease Control and Prevention the power to decide whether something like Covid-19 in a foreign country poses a serious danger of spreading in the U.S. – was being applied to Haitians in a racist manner.

“Many Haitians are being turned back at the border,” said Candler Suarez. “They are being denied the right to apply for asylum.”

The second panel, moderated by Parker Sheffy, a clinical teaching fellow at the Immigration Clinic, was a refresher on asylum, withholding of removal and CAT. Panelist Elizabeth Mendoza from the American Immigration Lawyers Association (AILA), which supports immigration attorneys in this work, spoke about challenges because of newly appointed immigration judges and evolving Covid practices.

“Unfortunately, things are in flux this month,” said Mendoza. “It’s not out of the ordinary to be given conflicting information.”

Well known former U.S. immigration judge, Jeffrey S. Chase, was the final panelist in this group and focused on the future of asylum in the U.S. “The Biden Administation issued a paper on climate change and migration,” said Chase. “[What] they were really talking about [though was] asylum and how climate change will impact that.”

A third panel offered insights on the use of experts in removal proceedings. UH Law Center Professor Rosemary Vega moderated the discussion which ranged from psychological experts to country experts and where to find them.

“The Center for Gender and Refugee Studies has a giant list of experts on many topics,” said panelist and UH Law Professor Lucas Aisenberg. “It’s the first place I go to when I’m working on a case.”

The workshop wrapped up with speakers from Interfaith Ministries of Greater Houston explaining what it is like to be a refugee from Afghanistan and how hard it has been to meet the needs of Afghan refugees that have arrived in the last year.

“Two years ago, we resettled 407 Afghan refugees,” said Martin B. Cominsky, president, and CEO of Interfaith Ministries of Greater Houston. “Since September 2021, we have resettled 11,081 refugees.” He implored practitioners on the call to help in any way they can.

The Joseph A. Vail Asylum Workshop has been held annually since 2014 in memory of the University of Houston Law Center Immigration Clinic’s founder. Since the clinic’s inception in 1999, it has become one of the largest in the nation, specializing in handling asylum applications for victims of torture and persecution, representing victims of domestic violence, human trafficking, and crime, and helping those fleeing civil war, genocide, or political repression. The clinic has served over 2,000 individuals who otherwise could not afford legal services.

For a full list of speakers at this year’s event, click here.

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“Immigration court backlogs continue to grow with former Board of Immigration Appeals Chairman Paul W. Schmidt predicting them reaching over 2 million by the end of 2022.”

“Aimless Docket Reshuffling” is thriving @ Garland’s EOIR. Instead of gimmicks designed to “prioritize for denial and deterrence” (how about those “engineered in absentia dockets?”) why not work with the private bar and DHS to prioritize at both the Asylum Office and EOIR those with the most compelling cases from countries where refugee flows are well-documented?

For example, why not “prioritize” represented Uyghur and Afghani cases which should be “slam dunk” asylum grants? What’s the purpose of making folks who are going to be part of our society unnecessarily spend years in limbo?

Will Ukrainians soon be in the same boat, asks Jason “The Asylumist” Dzubow on his blog? https://www.asylumist.com/2022/01/27/preemptive-asylum-for-ukrainians/. Good question!

Is anybody in the Biden Administration actually planning for a possible human rights catastrophe, or just waiting for it to happen and then declaring yet another “migration emergency.”

Contrary to the uninformed view of many, backlogs aren’t just a workload problem or a hindrance to enforcement. There are huge human, psychological, economic, societal, and institutional costs with maintaining large uncontrolled backlogs.

Most of those costs fall on the individuals with strong, likely winning cases who constantly are “orbited to the end of the line” to accommodate ever-changing, ill-advised, enforcement agendas and misguided “quick fix” initiatives. That’s so that DHS and DOJ can misuse the legal system as a deterrent — by prioritizing the cases they think they can deny without much due process to “send messages” about the futility of asking for protection or asserting rights in the U.S. legal system! And, those with strong cases (and their attorneys) “twist in the wind” as denials and deterrence are prioritized.

Trying to prioritize “bogus denials” (often without hearings, lawyers, time to prepare, or careful expert judging) also creates false statistical profiles suggesting, quite dishonestly, that there is no merit to most cases. These false narratives, in turn, are picked up and repeated by the media, usually without critical examination.

Like the “Big Lie,” they eventually develop “a life of their own” simply by repetition. When occasionally “caught in action” by Article IIIs, the resulting backlog bolstering remands and “restarts” are inevitably blamed on the individuals (the victims), rather than the systematic Government incompetence that is truly responsible!

The truth is quite different from the DOJ/DHS myths. Over the years, despite facing a chronically unfair system intentionally skewed against them, some hostile or poorly qualified Immigration Judges and Appellate IJs, and wildly inconsistent results on similar cases before different judges (so-called “Refugee Roulette”), asylum seekers have won from 30% to more than 50% of the time when they actually receive an opportunity for a full, individual merits determination of their claims.

But, getting that individual hearing has proved challenging in a system that constantly puts expediency and enforcement before due process, fundamental fairness, and human dignity! No matter how the Government tries to hide it, that means that there lots of bona fide asylum seekers out there whose cases are languishing in a broken system.

The creation of the USCIS Asylum Office was supposed to be a way of dealing with this issue through so-called affirmative applications and “quick approvals” of meritorious cases. But, during the Trump Administration even that flawed system was intentionally and maliciously “dumbed down,” “de-functionalized,” “re-prioritized,” and hopelessly backlogged. It was so bad that the Asylum Officers’ Union actually sued the Trump Administration for acting illegally.

More “gimmicks” like Garland’s failed “dedicated dockets” won’t fix his dysfunctional system. Fundamental leadership, personnel, substantive quality, procedural, and “cultural” changes are necessary to address backlogs while achieving due process and fundamental fairness at EOIR. Ironically, that was once the “EOIR Vision.” ⚖️ It’s too bad, actually tragic, Garland doesn’t share it!🤯

🇺🇸Due Process Forever!

PWS

02-08-22

⚖️BINGO! — WASHPOST DUO’S REPORT SHOWS TIMELINESS ⏰ OF RAPPAPORT-PISTONE-SCHMIDT PLAN 😎 FOR INCREASING REPRESENTATION AND IMPROVING MPP PROCESS! — All That’s Missing Is The Government Leadership To Engage & Make It Happen! — “But despite the vastly lower numbers, there is still far more demand for pro bono legal services than nonprofit groups and charities can provide, Castro said.”

Nick Miroff & Arelis R. Hernandez report for WashPost:

https://www.washingtonpost.com/national-security/2022/02/04/biden-mpp-mexico/

. . . .

Under Trump, asylum seekers sent to Mexico were often confused and adrift, unsure how to find legal help or return for their U.S. court appointments. They were visible on the streets of Mexican border cities and were easy targets for criminal gangs.

Marysol Castro, an attorney with El Paso’s Diocesan Migrant and Refugee Services who provides legal aid to asylum seekers in MPP, said the program’s return under Biden was a “relief” to some, “because otherwise if you go to the border you’re getting expelled” under Title 42.

Castro said new enrollees in MPP have court dates with fast-tracked hearings, unlike asylum seekers who were placed into the program under Trump and are still stuck in Mexico “with no hope.”

Mexican authorities say they received assurances from the Biden administration that migrants placed in MPP would have improved access to legal counsel. But despite the vastly lower numbers, there is still far more demand for pro bono legal services than nonprofit groups and charities can provide, Castro said.

More than two-thirds of MPP returns under Biden have been sent to Ciudad Juárez, where they are provided secure transportation through a State Department contract with the U.N. International Organization for Migration. The Mexican government houses them in a shelter set up in a converted warehouse in an industrial area of the city.

“The shelters are more restrictive,” said Victor Hugo Lopez, a Mexican official who helps oversee the program. “The migrants can request permits to go outside, but we try to keep them safe by keeping them inside.”

Dana Graber Ladek, the IOM chief of mission in Mexico, said her organization continues to oppose MPP on principle, even as it’s working with both governments to ameliorate conditions for those sent back.

“It still has a tremendous amount of negative impacts,” she said. “It’s not how asylum is supposed to work.”

Hernández reported from San Antonio.

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Hey, guys, we told you so!

https://immigrationcourtside.com/2022/02/02/%e2%9a%96%ef%b8%8f%f0%9f%97%bdthere-will-be-no-supreme-intervention-to-stop-mpp-%e2%98%b9%ef%b8%8f-rappaport-pistone-schmidt-tell-how-the-administration-advocates-c/

Representation remains a problem, but also an opportunity, just as Nolan Rappaport said on The Hill! Fortunately, Professor Michele Pistone has been thinking in advance and has built a “scalable” program (VIISTA-Villanova) that already is turning out qualified grads who can become accredited representatives and could quickly be expanded. By coordinating scheduling of hearings with nationwide NGOs and pro bono groups and “leveraging” resources that might be available to get pro bono resources to the border without overtaxing them elsewhere with “Aimless Docket Reshuffling,” (“ADR”), the representation problem can be solved.

One good sign is that cases of those likely to be granted, Venezuela, Nicaragua, Cuba, have been prioritized which can help move dockets forward while reducing resource-wasting appeals and petitions for review. But, there is much more “low hanging fruit” here to be harvested, in my view:

Also prioritize many Haitian cases, domestic violence cases from Latin America, and family-based cases which, if represented and documented, should be relatively straightforward grants;
Replace the BIA with judges who are asylum experts and will issue the necessary positive guidance on granting asylum that will move dockets, promote consistency, and reduce appeals;
Why ignore the “waiting for Godot” cases left over from Trump’s intentionally “built to fail” program? Get them represented and scheduled for hearings;
End the failing and totally misguided “Dedicated Dockets” at EOIR. Instead, treat the MPP as the “Dedicated Docket;”
To keep backlog from further building, use ideas from the “Chen-Markowitz” plan to remove two “hopelessly aged” cases from the EOIR backlog docket for every MPP case “prioritized.” This could also free up some representation time. Go from ADR to “Rational Docket Management” (“RDM”), closely coordinated with the private bar and DHS!

Finally, keep in mind that directly contrary to the babbling of Paxton and other ignorant GOP White Nationalists, the purpose of asylum law is protection, not rejection! And, the generous standard of proof for asylum, recognized by the Supremes 35years ago, combined with existing regulatory presumptions of future persecution based on past persecution should, if honestly and expertly applied, favor asylum applicants (even if that hasn’t been true in practice). The U.S. legal system is supposed to be about guaranteeing due process fundamental fairness, and achieving justice, not to serve as a “deterrent,” “punishment,” or “enforcement tool.”

In the case of MPP, everyone in the program has already passed initial credible fear or reasonable fear screening! That means with well-qualified Immigration Judges possessing asylum expertise, new expert BIA judges, competent representation, and a focus on insuring justice by DHS Counsel, many, probably the majority of the MPP cases should be grants of asylum of other protection.

That will help clean out the camps, while addressing the serious “immigration deficit” that was engineered by Trump and Miller. It also allows refugees to become contributing members of our society, rather than rotting away and squandering their human potential in squalid camps in Mexico!

To date, most MPP cases have been denied with questionable due process, little obvious expertise, and a complete lack of positive, practical guidance by the BIA. This strongly suggests severe shortcomings and bias in the DHS/DOJ implementation of Remain in Mexico (“MPP”). But, it’s never too late to do better!

The Post article suggests that there have been some modest improvements in MPP under Biden. It’s time to take those to another level! The ideas and tools are out there. All that’s missing is the dynamic leadership, teamwork, and competent, creative., due-process-focused focused management.

🇺🇸Due Process Forever!

PWS

02-07-22

🤮GARLAND’S VERY BAD WEEK CONTINUES: SHORT “SHELF LIFE” 👎🏽 IN 9TH CIR. FOR BIA’S LATEST ATTEMPT TO SIDESTEP THE STATUTE AND BLOW OFF THE SUPREMES IN LAPARRA! — Backlog, Chaos, Continue To Grow As Notice For Many “Contrived” In Absentia Orders Blasted Away! — Singh v. Garland

Kangaroos — “Statutes are so totally annoying! Enforcing them is above our pay grade, if it burdens our ‘partners’ at DHS Enforcement! But, we’ll ‘throw the book’ at individuals for anything! Seems fair to us!”
https://www.flickr.com/photos/rasputin243/
Creative Commons

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/04/20-70050.pdf

The Supreme Court’s decisions in Pereira and Niz-Chavez, along with the text and structure of the statutory provisions governing in absentia removal orders and Notices to Appear, unambiguously required the government to provide Singh with a Notice to Appear as a single document that included all the information set forth in 8 U.S.C. § 1229(a)(1), including the time and date of the removal proceedings. Because the government did not provide Singh with statutorily compliant notice before his removal hearing, Singh’s in absentia removal order is subject to recission pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii). We grant Singh’s petition on that ground, do not reach his exceptional circumstances argument, and remand to the BIA for further proceedings consistent with this opinion.

PETITION GRANTED and REMANDED.

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No surprise to “Sir Jeffrey” Chase, me, or experts. What is “below the radar screen” here is how the BIA’s “pattern or practice” of intentional misinterpretation of this very clear statutory provision over three Administrations and in a number of situations has fed the backlog.

One of the “gimmicks” used by DOJ and EOIR to short-circuit due process has been to use bogus “in absentia” orders to complete cases without real hearings and without doing much work while creating a “myth of non-appearance” by asylum seekers. Indeed, under Garland whole dockets were set up with the expectation that individuals would not appear. Agency officials then “cheered” having produced these bogus “final orders.”

It would be unusual if ANY of those subjected to this process under a Garland received “compliant NTAs” sufficient to support in absentia orders! Even with these “gimmicks,” and many more judges, haphazardly selected and often lacking expertise, the backlog has mushroomed.

In truth, asylum seekers appear for their hearings at a rate approaching 100% provided that they get proper notice, understand the process, and are represented. A competent Attorney General would take this empirical data, work with legal services groups, and develop a process to comply with the statute, improve the notice system, promote universal representation, and reduce in absentia hearings.

The obvious first step would be to absolutely require DHS to comply with statutory requirements in issuing Notices to Appear and to impose meaningful sanctions and consequences for the failure to do this. To the extent that the failure to comply is a function of the EOIR/DOJ bureaucracy, those bureaucrats and politicos responsible should also be held accountable by the Immigration Courts.

That’s what fair, impartial, independent judging is supposed to be about! But, Garland, like his predecessors, has tried to “gimmick” his way out of providing fair hearings as required by the statute and our Constitution while ignoring “best practices.”

Does anyone seriously think that a group of “real appellate judges” — experts committed to fair and impartial interpretations that advance due process while promoting best practices — would have come up with the Laparra nonsense? No way!

Yet given a chance to materially improve EOIR’s performance, Garland has chosen the “quality, excellence, and due process for all is optional, at best” approach of his predecessors, even if shying away from their overt weaponization of EOIR against migrants.

Remember, when Garland and company inevitably attempt to deflect or shift blame for their backlogs and “Aimless Docket Reshuffling” to the victims, those stuck in his dysfunctional system and their lawyers, this backlog is largely self-created by folks who have consistently ignored expert advice and input while failing to install competence, expertise, and demonstrated commitment to guaranteeing fairness and due process for all into a broken, biased, and intentionally unfair system!

🇺🇸Due Process Forever!

PWS

02-04-22

⚖️👎🏽🤮☠️HUMAN RIGHTS GROUPS BLAST BIDEN, HARRIS, GARLAND, MAYORKAS FOR ILLEGAL RETURNS TO COLOMBIA, CONTINUATION OF MILLER’S XENOPHOBIC, DEADLY & CORRUPT TITLE 42 ABUSES OF HUMANITY!

https://bit.ly/3upncgP

Letter to Biden/Harris on Expulsions of Venezuelan Asylum Seekers to Colombia

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Dear President Biden and Vice President Harris:

We, the undersigned organizations committed to the rights of asylum seekers and refugees, write to express our serious concerns over reports that the U.S. Department of Homeland Security (DHS) has begun a new practice of using Title 42 to expel Venezuelan migrants to Colombia. We understand that the first two Venezuelan individuals to be expelled under this policy were flown to Colombia on January 27, 2022 and that additional Title 42 expulsion flights to the country are expected to take place on “a regular basis” for Venezuelans who “previously resided” in Colombia. This practice represents a concerning and unacceptable escalation to your administration’s misguided approach to border and migration policy that flouts domestic and international refugee and human rights law. We urge you to cease these and other Title 42 expulsions immediately, to prioritize protection and access to asylum in your regional and domestic migration policies, and to engage asylum and human rights experts as you pursue new policies.

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One year into your administration, you have continued the misuse of a xenophobic Trump-era policy that weaponized an obscure provision of Title 42 of the U.S. code to summarily block and expel individuals, often repeatedly, from the U.S. southern border, without providing them the opportunity to seek asylum or the ability to access any protection screening required by law. These new flights to Colombia come amidst troubling reports that your administration placed on hold plans to restart asylum processing at U.S. ports of entry and that high-level officials have resisted ending Trump-era asylum restrictions, including Title 42 expulsions.

Title 42 expulsions have nothing to do with protecting public health and are not necessary to protect the public from the spread of COVID-19. Since the start of the COVID-19 pandemic, public health experts, the UN Refugee Agency, and other humanitarian advocates have demonstrated that it is possible to protect public health and ensure access to asylum simultaneously. In fact, the Centers for Disease Control and Prevention (CDC) objected to the use of Title 42 for mass expulsions of migrants and confirmed such expulsions lacked a valid public health basis. Your Chief Medical Advisor Dr. Anthony Fauci has himself stated that immigrants are “absolutely not” driving a COVID-19 outbreak and that expelling migrants is not a solution to an outbreak.

Over the past twelve months, your administration expelled people—often expelling the same person repeatedly—from the U.S. southern border more than one million times. In just the first seven months of your administration, U.S. border officials carried out 704,000 expulsions, a significant increase from the Trump administration’s 400,000 expulsions conducted over ten months. In addition to the new expulsion flights to Colombia, DHS also carries out land expulsions to Mexico and expulsion flights to send individuals and families back to their countries of origin, including Haiti, Guatemala, Honduras, and Brazil. Even though your administration has acknowledged that “Haiti is grappling with a deteriorating political crisis, violence, and a staggering increase in human rights abuses…” – the U.S. has since September 2021, inexplicably chartered nearly 150 flights of almost 16,000 Haitians, including families with infants, back to a country that is unquestionably unsafe without offering them any opportunity to seek protection before expulsion. These expulsions under Title 42 violate the law and risk sending people back to dangerous conditions – sometimes the very ones that caused them to seek safety in the first place.

As you are aware, Venezuela is currently facing a severe economic, political, and humanitarian crisis. Millions of Venezuelans have left the country due to political persecution, a collapse of basic services, food insecurity, and rampant violence. Over 1.7 million Venezuelans are being hosted in Colombia and many have been granted temporary status there and only a small percentage of Venezuelans have sought asylum in the United States; however, Colombia is not safe for all Venezuelan migrants and refugees. Venezuelans, and all other individuals fleeing persecution have the right to seek asylum under U.S. law and to have their claims for protection assessed on a case-by-case basis. Your administration is blatantly violating the law by expelling these people to other countries in the region, such as Colombia, and we are deeply troubled by the informal and opaque arrangements with third countries that facilitate these expulsions. Your administration terminated several such agreements with Central American countries when you came into office, making these new flights especially concerning.

During its first year in office, your administration committed to a comprehensive regional approach to migration, aiming to strengthen asylum systems and refugee resettlement programs in the region and promote “safe, orderly, and humane migration.” Despite this pledge, your administration’s actions suggest that the United States seeks out negotiations with countries throughout Latin America that externalize its borders further south, shifts responsibility to countries already hosting millions of refugees, and impedes people’s ability to seek protection in the United States. Earlier this month, under pressure from your administration, the Mexican government implemented new requirements that Venezuelans obtain a visa to travel to Mexico. According to reports, your administration has also requested that Mexico sign a safe third country agreement, which could effectively block most individuals (except Mexicans) from seeking asylum in the United States.

We urge your administration to abandon efforts to prevent people from seeking asylum through externalized migration controls in the region and to undermine the right of people to seek protection in the United States. As you pursue other regional efforts, it is imperative that your administration operate with increased transparency and engage with asylum and human rights experts about potential efforts such as anticipated regional compacts on migration with other countries in the Americas. While regional protections must be strengthened, these efforts must not and need not come at the expense of existing protection mechanisms and access to asylum at the U.S.-Mexico border, including at ports of entry.

Your administration has the responsibility to uphold U.S. refugee law and treaty obligations. We call on your administration to cease further expulsions of Venezuelan migrants to Colombia, and to immediately end its use of all expulsions under Title 42. Our organizations continue to welcome the opportunity to engage on and inform how to promote a protection centered approach to “safe, orderly, and humane migration,” including restoring access to asylum at the border, including at ports of entry.

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Let’s be clear about the equation:

immigrants’ rights = human rights = civil rights = racial justice = economic stability = common good

By failing miserably on the first, the Administration has found itself flailing and failing on the rest.

Nowhere is this more apparent than at DOJ! Garland has squandered the precious first year in office by NOT cleaning house at EOIR and bringing in practical experts in immigration/human rights/due process to remake and reform the system so that it can deal fairly, timely, and justly with asylum applicants applying at the border and and elsewhere in the U.S., as they are legally entitled to do.

Instead of expertly culling the vast majority of backlogged pending cases which are neither priorities nor viable removal cases at this point, Garland has built the unnecessary, largely self-created backlog at a record pace to more than 1.6 million with no end in sight! Add that to his disgraceful failure to stand up against illegal and immoral policies and clear violations of human rights at the border by his own Administration and you get today’s catastrophic situation.

“Standing tall” for the rule of law (and human decency) is supposed to be the Attorney General’s job. Why are these NGOs being forced to do it for him?

How bad have things gotten at Garland’s DOJ? This has already been a tough week that saw his DOJ attorneys “blow” a plea bargain in a major civil rights case, be excoriated by the 4th Circuit in a published case for a miserably botched performance in what should have been a routine “reasonable fear” case, and have Chairwoman Lofgren introduce her Article 1 bill with a broadside against DOJ’s horrible stewardship over EOIR.

As if to punctuate Chairwoman Lofgren’s critique, Garland topped it off with this gem: a beatdown in a pro se Salvadoran asylum case, which OIL basically failed to “pull” although the BIA decision conflicted with Garland’s own more recent precedent, from a Fourth Circuit panel that included two recent Trump appointees not heretofore known for vigorously defending asylum seekers’ rights! https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/pro-se-ca4-psg-remand-luna-deportillo-v-garland

Folks, this is NOT “good government.” Not by a long shot!

There is no more important task — NONE — facing DOJ than pumping some due process and quality back into immigration law and making the long overdue management, personnel, procedural, and legal quality reforms at EOIR.

Yes, that apparently would require Garland to take on some folks at the White House who obviously consider human rights to be a “political strategy,” integrity and courage optional, and live in mortal fear of Stephen Miller and far-right nativists. It would mean taking decisive actions to treat asylum seekers and other migrants (including many individuals of color) as “persons” under our Constitution. It would end the intentional “Dred Scottification of the other.” It would send some Sessions/Barr “plants and holdovers” packing from their current jobs!

Unquestionably, these moves would incite predictable, tiresome, apoplectic reactions by Miller and the GOP White Nationalist cabal on the Hill. They would put Garland “in the spotlight” and interrupt the serenity of his inner sanctum on the 5th floor of the DOJ where he apparently likes to contemplate the world and “things other than due process for immigrants.”

But, taking on folks like that is what good lawyers are supposed to do. As a public lawyer, it’s not just about being somebody’s “mouthpiece” — it’s standing up for the rule of law!

I among many others have said from the outset that Garland won’t be able to sweep the total meltdown at EOIR and in immigration legal positions under the table, much as he obviously would like them to go away! Yes, he inherited an awful mess from his Trump predecessors. But, almost a full year in, that doesn’t absolve him of responsibility for failing to initiate the common sense steps to fix it and to bring in experts who actually know what they are doing and have the guts and backbone to follow through — even when the going gets tough, as it undoubtedly will. The problems at DOJ go far beyond EOIR; but, EOIR must be the starting place for fixing them. There is no more time to lose!

Alfred E. Neumann — It’s time for Garland to start worrying about running “America’s most unfair and dysfunctional courts,” defending grotesque human rights violations and scofflaw policies by his own Administration, and a DOJ that takes untenable and embarrassingly bad legal positions before the Federal Courts. Much as he’d like to pretend that “immigration doesn’t matter,” or expressed a different way “human lives don’t matter if they are only migrants,” he’s starting to get pressure from Congress, the Article IIIs, and NGOs to fix EOIR and “shape up” the DOJ’s lousy, sometimes unprofessional and ethically questionable, approach to immigration, human rights, and racial justice issues. Justice for immigrants is the starting point for achieving racial justice in America.
PHOTO: Wikipedia Commons

Garland’s failure to institute widely recommended common sense legal reforms — government for the common good — at EOIR undermines our democracy while endangering “real” human lives every day! That’s a toxic legacy that he won’t be able to avoid!

🇺🇸Due Process Forever!

PWS

02-04-22

⚖️👩🏽‍⚖️CONGRESS: ARTICLE I IN PLAY, AS CHAIR LOFGREN INTRODUCES “The Real Courts, Rule of Law Act of 2022!” — “Our immigration court system will never be effective as long as it is housed under the Department of Justice.”☠️🤮

Zoe’s Lofgren — Rep. Zoe Lofgren (D-CA)
Chair of the House Subcommittee on Immigration and Citizenship
PHOTO: US House

Here’s the scoop:

Lofgren Introduces Landmark Legislation to Reform the U.S. Immigration Court System

February 3, 2022 Press Release

The Real Courts, Rule of Law Act of 2022 creates an independent ‘Article I’ immigration court, free from the political influence of the Executive Branch

WASHINGTON, DC – Today, U.S. Congresswoman Zoe Lofgren (CA-19), Chair of the House Subcommittee on Immigration and Citizenship, introduced H.R. 6577, The Real Courts, Rule of Law Act of 2022, a bill that transitions the nation’s immigration court system into an independent judiciary, consistent with Article I of the U.S. Constitution. The bill will ensure that the immigration courts are administered by qualified, impartial judges; have adequate court resources and support services; are defined by transparency and integrity; and are financially independent. The Real Courts, Rule of Law Act of 2022 is co-sponsored by House Judiciary Committee Chair Jerrold Nadler (NY-10) and Chair of the House Subcommittee on Courts, Intellectual Property, and the Internet, Hank Johnson (GA-04).

An office within the Department of Justice, our nation’s immigration court system – known as the Executive Office for Immigration Review – lacks procedural and structural safeguards to protect it against political influence. Immigration judges are not judicial officers – they are lawyers, appointed by the nation’s top prosecutor, the Attorney General. As employees of the Department of Justice, immigration judges are charged with adjudicating cases in accordance with the policies and priorities of the governing administration. Each Administration – Democratic and Republican – has used the immigration courts as a mechanism to shape immigration policy.

“A hallmark of our system of democracy and the rule of law is an independent judiciary. Our immigration court system will never be effective as long as it is housed under the Department of Justice. After decades of political whiplash, resulting from the ever-changing policies and priorities of the governing Administrations, it is clear that the system is ineffective, inflexible, and far too often, unfair,” said Chair Zoe Lofgren. “Congress must act by passing The Real Courts, Rule of Law Act to create an immigration court system independent of the Executive Branch. This structural overhaul will strengthen due process and restore faith in the system by taking politics out of the immigration courts for good.”

“Since its founding, our immigration court system has been mired by political interference from both Democratic and Republican administrations,” said Chair Jerrold Nadler. “Our country needs an immigration court system that can deliver just decisions in accordance with the law, not one that is subject to ever-changing political whims. I’m proud to join Subcommittee Chair Lofgren in introducing the Real Courts, Rule of Law Act, which would establish an independent Article I immigration court system consistent with other judicial institutions across our nation. By moving the court out from under the Department of Justice, this legislation will ensure that our immigration court system can effectively prioritize due process and the rule of law.”

“The creation of an independent immigration court would ensure that our immigration judges are no longer subject to the political whims of any particular administration,” said Chair Hank Johnson. “Our current immigration backlog is approaching 1.6 million cases and lacks procedural and structural safeguards to protect the human beings that make up these cases. By establishing an independent immigration court, this bill will ensure impartiality and transparency when it comes to these life and death decisions and allow these judges to administer justice efficiently and effectively. I’m proud to join Rep. Lofgren in introducing The Real Courts, Rule of Law Act of 2022.”

Click here for a one-pager on immigration court reform and The Real Courts, Rule of Law Act.

Click here for a section-by-section summary of The Real Courts, Rule of Law Act.

Click here for full text of The Real Courts, Rule of Law Act.

Bill Details

The Real Courts, Rule of Law Act of 2022 will:

Establish an independent immigration court – similar to the U.S. Tax Court – consistent with Article I of the United States Constitution. The newly-formed United States Immigration Court will be comprised of a trial division, an appellate division, and an administrative division.

Ensure that qualified, impartial individuals are appointed to serve as immigration judges at both the trial and appellate levels.

Ensure that the United States Immigration Court has adequate resources and support to operate efficiently while giving the Court authority to appoint temporary immigration judges and establish temporary court facilities to ensure the expeditious administration of justice.

Improve transparency and accountability in Immigration Court proceedings by requiring publication of all court rules and procedures, as well as precedent decisions and pleadings while protecting confidential information.

Improve efficiencies by allowing the Immigration Court to establish its own budget without review by the Executive Branch and empowering immigration judges to control their own dockets and compel agency action that is unlawfully withheld or unreasonably delayed.

Strengthen the integrity of immigration court proceedings by giving immigration judges authority to impose civil money penalties for contempt of court.

Ensure due process by preserving the privilege of counsel, ensuring quality interpreter services, and mandating legal orientation programs for individuals appearing before the Court.

Support

The Real Courts, Rule of Law Act of 2022 is supported by the American Bar Association, American Immigration Lawyers Association, Federal Bar Association, National Association of Immigration Judges, American Immigration Council, Bipartisan Policy Center Action, Human Rights First, Kids in Need of Defense, National Immigrant Justice Center, National Immigration Law Center, Niskanen Center, and Women’s Refugee Commission.

“The American Bar Association has high regard for the mission and goals of the Justice Department, but we strongly support the creation of an independent Article I immigration court system. It is essential that every judge is free to decide cases based solely on the facts and the law, without external pressure or influence,” said Reginald Turner, President of the American Bar Association (ABA).

“This legislation and the effort to rebuild our immigration court system is welcome indeed. For decades, the deck has been stacked against immigrants. Getting a fair day in court is nearly impossible when the immigration courts are under the authority of the nation’s chief prosecutor: the Attorney General. Regardless of their administration or political party, Attorneys General can abuse the extraordinary power they have over the immigration courts and sacrifice due process for expediency. When that has happened in the past, the most vulnerable people – including asylum seekers, victims of violence, and people deprived of their liberty – have paid a high price. There remains vital work to be done by Congress to reform the immigration law itself—specifically, restoring discretion to immigration judges. But foundational to any fair system is a neutral judge. This bill provides that foundation,” said Jeremy McKinney, President-elect of the American Immigration Lawyers Association (AILA).

“After spending several decades helping develop and advocate for this landmark legislation, the Federal Bar Association commends Chair Lofgren and her colleagues for introducing a bill today that would facilitate a long-lasting solution to separate the politics of immigration enforcement from the needs of immigration adjudication. Having collaborated with a number of other prominent legal associations to get to this historic point, FBA remains committed to ensuring that we improve access to justice and due process for individuals appearing before immigration judges. The Constitution gives Congress the ability to create new federal courts and with a current backlog of 1.6 million cases, it is clear to our members that the time has finally come to fix a broken and ineffective system,” said Anh Le Kremer, President of the Federal Bar Association.

“The NAIJ applauds the House Judiciary leadership for introducing an Article I Immigration Court bill. Chair Lofgren, Chairman Nadler and Chairman Johnson, in introducing this legislation, are rectifying the historical mistake of having an immigration court housed in a law enforcement agency. Given the many problems facing the Immigration Court, Congress’s leadership in removing the court from the Department of Justice is welcome relief, and is a crucial step in restoring due process and court efficiency to our broken system,” said Judge Mimi Tsankov, President of the National Association of Immigration Judges (NAIJ).

Related Hearings

On January 20, 2022, the Subcommittee on Immigration and Citizenship held a hearing titled “For the Rule of Law, An Independent Immigration Court.” Click here for the full video, witness testimonies, and supporting documents from that hearing.

On January 29, 2020, the Subcommittee on Immigration and Citizenship held a hearing titled “Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts.” Click here for the full video, witness testimonies, and supporting documents from that hearing.

###

Issues:

Immigration

Media

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

Four Horsemen — The BIA’s “take no prisoners” approach to asylum seekers has helped bring the Immigration Courts into disrepute, leading some reviewing courts to suggest that EOIR has crossed the line from “fair and impartial adjudication” to “advocates for DHS Enforcement.” That’s not news to experts and human rights advocates. Despite Biden’s campaign promises to restore justice for migrants, Garland has failed to usher in a new era of “due process and fundamental fairness for all.”
Albrecht Dürer, Public domain, via Wikimedia Commons

As this bill moves forward, the ongoing chaos, unfairness, disorder, dysfunction, dehumanization, and abysmal quality of decisions flowing from Garland’s Clown Courts 🤡 will get more and more attention and memorialization!

It would behoove Garland to clean house at EOIR and bring in some real judges, immigration/human rights/due process expertise, and competent judicial administrators to prepare the system for transition to Article I.

In this respect, the bill contains this provision, requiring the President and the Appellate Division ensure:

‘‘(2) the corps of immigration judges—

‘‘(A) is comprised primarily of individuals with prior legal experience in immigration law; and

‘‘(B) to the extent practicable, reflects a balance of individuals with prior legal experience in the public sector and private sector; and ‘‘(3) candidates are selected without regard to political party affiliation or perceived political ideology.

Certainly not the way EOIR has been run by DOJ politicos over the past two decades! And, to date, Garland has done little to bring about long overdue personnel changes, due process, fundamental fairness, decisional independence, quality, and professionalism!

🇺🇸Due Process Forever!

PWS

02-03-22

👎🏽ANOTHER 4TH CIRCUIT PUTDOWN FOR GARLAND — AO & IJ COMPLETELY BOTCH “REASONABLE FEAR REVIEW” — OIL COMPOUNDS PROBLEM BY ADVANCING SEMI-FRIVOLOUS DEFENSES!

Dan Kowalski reports for LexisNexis:

Tomas-Ramos v. Garland

https://www.ca4.uscourts.gov/opinions/201201.P.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca4-on-nexus-tomas-ramos-v-garland#

“After Adan de Jesus Tomas-Ramos, a citizen and native of Guatemala, reentered the United States illegally in 2018, a removal order previously entered against him was reinstated. But because Tomas-Ramos expressed a fear of returning to Guatemala, an asylum officer conducted a screening interview to determine whether he reasonably feared persecution or torture in his home country. The asylum officer determined that Tomas-Ramos failed to establish a reasonable fear of such harm, and so was not entitled to relief from his reinstated removal order. An Immigration Judge (“IJ”) concurred with that determination. Tomas-Ramos now petitions for review of the IJ’s order on two grounds. He first contends that the IJ’s finding that he lacked a reasonable fear of persecution or torture was erroneous. We agree. The primary ground for the IJ’s decision was that there was no “nexus” between the harm Tomas-Ramos faced and a protected ground. But the agency incorrectly applied the statutory nexus requirement. Instead, the record compels the conclusion that Tomas-Ramos was persecuted on account of a protected ground, in the form of his family ties. And in light of that error, we cannot determine that the other reason given by the IJ for her decision – that Tomas-Ramos could avoid harm by relocating – was supported by substantial evidence. Accordingly, we grant the petition for review, vacate the agency’s decision, and remand for further proceedings.”

[Hats off to Michael D. Lieberman, Simon Y. Sandoval-Moshenberg, Stacy M. Kim, Paul F. Brinkman, and Michael A. Francus!]

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

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

- DOJ’s error-studded performance (or lack thereof) in this case is disgraceful!
- I guarantee that there are plenty of other unjust, legally defective reasonable fear and credible fear decisions where these came from. Just most folks never get any meaningful judicial review.
- Both the IJ and the AO got the basics of nexus and the applicable 4th Circuit case law totally wrong here. How are is this acceptable performance from what are supposed to be “expert” courts? Why hasn’t Garland brought in real experts, committed to due process and best practices, to take charge and straighten out this mess?
- Disturbingly, the Biden Administration wants to turn this type of clearly inadequate procedure with poorly trained officers and judges and incorrect applications of the law loose on the merits determinations for all asylum seekers at the border!
- Rather than being a check on bad judges, Garland’s OIL continues to “defend the indefensible” with arguments that don’t meet “the straight-face test.” Aren’t ethical codes equally applicable to Government lawyers?
- Worse yet, Garland continues to unethically defend the scofflaw behavior of the Biden Administration by using a Stephen Miller era “COVID pretext” to deny most asylum seekers at the Southern Border any process, even the pathetic one used here!
- The “wheels have come off” @ Garland’s DOJ and he’s driving on the axel hubs! When is someone going to pull him over and make him fix it?
- Believe it or not, these are life or death cases! ☠️ Why is Garland allowed to treat the lives and rights of migrants and those associated with them so frivolously?
- The IJ’s attempt to bar the R’s attorney from participating in the “credible fear” review is ridiculous! It shows the deep problems in Garland’s broken system which too often is deaf to due process, hostile to attorneys, and immune from common sense and best practices! Why would the “default” for regulatory silence be “no participation” rather than a “strong presumption that attorneys can fully participate?” What kind of “court” bars attorneys from speaking for their clients? Why would any judge not want to listen to attorneys, who are there to help them make correct decisions? The IJ’s conduct here was particularly egregious given that she had already made a clearly wrong decision before cutting off the attorney’s attempt to point out her errors! What a complete farce that Garland has failed to address!
- This is another case where Circuit Judge Allison Jones Rushing, a Trump appointee with solid conservative credentials, once thought to be a possible contender for the “ACB seat,” joined her colleagues (Judge Harris and Chief Judge Gregory) to overturn a wrong, anti-immigrant decision by EOIR. Her approach in this and another recent case shows more sensitivity to due process, scholarship, and the rights of individual immigrants than many decisions emanating from Biden’s Immigration Courts under Garland.
- I’m not suggesting that Judge R is necessarily going to become a leading defender of due process for immigrants. But, based on these somewhat random “snippets,” she seems more “reachable” and open to sound arguments on the issues than some other Trump appointees, points worth keeping in mind for NDPA advocates!
- She’s also young. So, she will be reviewing immigration cases and making law for decades to come.

🇺🇸Due Process Forever!

PWS

02-02/22

⚖️🗽THERE WILL BE NO “SUPREME INTERVENTION” TO STOP MPP ☹️ — Rappaport, Pistone, & Schmidt Tell How The Administration, Advocates, & Congress Can Work Together To Inject Due Process & Better Practices Into A Badly Flawed, Failed System Imposed By Bad Courts!👍🏼

DISCLAIMER: While I have been inspired by, and drawn on, the work of my friends Nolan & Michele, this posting is my view and does not necessarily represent either of their views on MPP, its merits, and/or the litigation challenging it.

https://thehill.com/opinion/immigration/592213-asylum-seekers-need-legal-help-not-generic-orientation

Nolan writes on The Hill:

. . . .

Paying for representation

INA section 1229a(b)(4)(A) prohibits the government from paying for lawyers to represent immigrants in removal proceedings. The pertinent part of this section states that, “the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing who is authorized to practice in such proceedings” (emphasis added).

But there is an alternative. EOIR has a program for recognizing organizations and accrediting their non-attorney representatives to represent aliens in removal proceeds for a nominal fee, and INA section 1229a(b)(4)(A) does not prohibit the government from providing these organizations with the funds they need to expand their immigration operations.

The government established the recognition and accreditation program to increase the availability of competent immigration legal representation for low-income and indigent persons, which promotes the effective and efficient administration of justice.

Two levels of accreditation are available. Full accreditation authorizes the accredited representative to represent immigrants in proceedings before DHS, in proceedings before an immigration judge, and in appeals to the Board of Immigration Appeals. Partial accreditation just authorizes them to assist immigrants in proceedings before DHS, such as in applying for an immigration benefit.

Aliens needing low-cost legal representation for removal proceedings or to apply for asylum can find recognized organizations and accredited representatives in their area on the roster of Recognized Organizations and Accredited Representatives. Currently, there are 761 recognized organizations and 1,970 accredited representatives, but only 300 of them have full accreditation.

An organization applying for recognition must establish that it is a Federal, tax-exempt, non-profit religious, charitable, social service, or similar organization; that it provides immigration legal services primarily to low-income and indigent clients; and that, if it charges fees, it has a written policy for accommodating clients who are unable to pay the fees.

And it must establish that it has access to adequate knowledge, information, and experience in all aspects of immigration law and procedure.

An organization applying for the accreditation of a representative must establish that the representative has the character and fitness needed for representing immigration clients; that he has not been subject to disciplinary proceedings or been convicted of a serious crime; and that he has the necessary knowledge in immigration law and procedures.

Professor Michele Pistone
Villanova Law

Excellent training programs are available to provide representatives with the knowledge they need to represent immigrants in removal proceedings before an immigration judge, such as the Villanova Interdisciplinary Immigration Studies Training for Advocates (VIISTA) — a university-based online certificate program that was established by Michele Pistone, a law professor at Villanova in August 2020, to provides the training immigrant advocates need to become accredited representatives.

VIISTA covers all of the topics needed to become an effective immigrant advocate — such as interviewing, how to work with an interpreter, how to work with migrant children, trial advocacy and, of course, immigration law.

Biden’s promise to maximize legal representation

Biden included maximizing legal representation in his “Blueprint for a Fair, Orderly, and Human Immigration System.” His plan to achieve that objective includes providing $23 million to support legal orientation programs — but orientation programs do not provide legal representation. In fact, the statement of work for the LAB contract solicitation requires orientation presenters to explain that they do not provide legal advice or representation.

Accredited representatives with full accreditation do provide legal advice and legal representation — but there aren’t nearly enough of them now to meet the need for such assistance.

Biden could use the funds he has earmarked for the legal orientation program to provide recognized organizations with the money they need to increase the number of accredited representatives — but a better solution would be for congress to provide the necessary funding.

For many asylum-seeking immigrants, an accredited representative with immigration law training may be their only hope for representation when they appear at their asylum hearings.

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

Thanks for this timely and informative piece, Nolan! Amazingly, this “accessible” analysis of an under-publicized opportunity is Nolan’s 300th published op-ed on The Hill! Congratulations! 🎊🍾

Go on over to The Hill to read the full article! The excerpt published above also contains helpful links to the VIISTA Program @ Villanova.

The extraordinary, innovative VIISTA Program began with Michele’s dinner table conversation with Judges Larry “The Burmanator” Burman, Mimi Tsankov (now NAIJ President), and me following an FBA Conference in DC several years ago. I doubt that any other lawyer in America could have turned it into reality. Michele got all the grants for seed money herself — winning a prestigious Kaplan Family Foundation Grant for Innovation in the process!

Because VIISTA is modularized, available online, constantly evaluated (including, of course, by students), and updated, it is “built for rapid expansion” throughout America, as suggested by Nolan. Even now, Michele is actively looking for “partners.”

My Round Table 🛡⚔️ colleague Judge Jeffrey Chase and I were privileged to have had modest roles in VIISTA’s curriculum development and review. Additionally, our Round Table colleague Judge Ilyce Shugall is one of the exceptional VIISTA faculty.

Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
A “Fighting Knightess of the Round Table,” she’s also one of VIISTA’s talented expert faculty members who knows exactly what asylum seekers need to prove to win in what currently is “America’s most dysfunctional court system!” She has “lived life on both sides of the bench!”

Recently (pre-omicron) Jeffrey and I were fortunate enough to be invited to a “VIISTA Anniversary Celebration” @ Villanova. We had a chance to meet not only folks from the Kaplan Foundation and Villanova (which has been totally supportive), but also to meet and hear from some faculty and members of the “Inaugural Class” about their achievements and their plans for the future.

This is truly “making the law better” and “delivering justice” at a grass roots level! And, as Nolan points out, expanded programs like this might be asylum seekers’ best chance of getting great representation that could be “outcome determinative.” Michele’s goal is 10,000 new representatives in 10 years! Who could doubt her ability to pull it off!

By now, it should be clear to both advocates and the Biden Administration that “Remain in Mexico” is here to stay, at least for the foreseeable future. No matter what the lack of merits to the Fifth Circuit’s decision might be (I’m sure that its tone-deaf, disconnected from reality and humanity approach will be the subject of numerous critical commentaries and law review articles), no relief can be expected from either the right-wing Supremes or the feckless Dems in Congress.

Given that the MPP program is going to be judicially imposed, the Administration and advocates can still get together to make it work in compliance with due process. It’s well within their power and not rocket 🚀 science:

A Better Due-Process- Focused Approach To “Remain in Mexico:”

Better BIA. Appoint a new BIA with appellate judges who are practical scholars in asylum and will establish coherent, correct legal guidance on domestic violence claims, gender based asylum, gang-based claims, nexus, “failure of state protection,” credibility, corroboration, the operation of the presumption of future persecution, the DHS’s burden of rebutting the presumption, “rise to the level,” right to counsel, fair hearings, fair notice, and other critical areas where the current “Trump holdover” BIA’s guidance has been lacking, inadequate, or defective. They can also insure consistency in asylum adjudications, something that has long escaped EOIR.
Better Judges. Get a corps of Immigration Judges with established records and reputations for scholarly expertise in asylum, demonstrated commitment to due-process, practicality, and fairness to asylum seekers to handle these cases.
Better Representation. Work with pro bono, advocacy groups, VIISTA, and the UNHCR to insure that every person applying under this program has access to competent representation and adequate opportunities to prepare and document cases. Another one of Nolan’s good ideas for VIISTA-type programs would be for Congress to provide scholarships for students (beyond those already available from Villanova). I have also gotten “anecdotal reports” that EOIR has built up an unconscionable backlog in processing of applications for Accreditation & Recognition. If confirmed, this must be immediately addressed.
Better Conditions. Work with the Government of Mexico and the UNHCR to guarantee the health, security, safety, and welfare of those waiting in camps in Mexico.

Indeed, the Biden Administration could and should already have put this very straightforward, achievable program in place during its first year in office, instead of “treading water” (or worse, in many cases)!

🇺🇸Due Process Forever!

PWS

02-02-22

PRISCILLA ALVAREZ @ CNN EXPOSES BIDEN’S SECRET, DUE-PROCESS-FREE, DEPORTATIONS OF VENEZUELANS TO COLOMBIA! ☠️🤮 — Venezuela’s Repressive Left-Wing Dictatorship — So Horrible It’s Not Even Recognized By The US — Has Sent Millions Of Refugees Fleeing — That Hasn’t Stopped Biden From Arbitrarily Rejecting Them!

Priscilla’s latest:

https://www.cnn.com/2022/01/31/politics/border-venezuela-colombia/index.html

US begins quietly flying Venezuelan migrants to Colombia under controversial border policy

By Priscilla Alvarez, CNN

Updated 12:27 PM ET, Mon January 31, 2022

(CNN)The Biden administration, unable to return an increasing number of Venezuelans arrested at the US-Mexico border to their home country, is now sending those migrants to Colombia if they previously resided there, according to two Homeland Security officials.

White House officials have grown increasingly concerned about the large numbers of single adults continuing to cross the US southern border, particularly from countries that Mexico won’t accept under a controversial Trump-era policy, two sources familiar with discussions said.

The flights of Venezuelans to Colombia, which have not been previously reported, marks another effort by the administration to try to stem the flow of migrants, pushing those who arrive further away from the US-Mexico border including those seeking asylum.

In December, US Customs and Border Protection encountered more than 13,000 single adults from Venezuela on the US southern border, compared with 96 in December 2020, according to agency data.

A humanitarian crisis and political instability have taken hold of Venezuela in recent years. Around 6 million people have fled the country, according to the United Nations, usually fleeing to other parts of Latin America which have also struggled during the pandemic.

There’s been bipartisan acknowledgment of the deteriorating situation in Venezuela. Last year, Sens. Marco Rubio, a Republican, and Bob Menendez, a Democrat, introduced a Senate resolution expressing alarm over the situation in the country.

Colombia also granted temporary legal status to Venezuelans who had fled there, allowing them to legally work in the country. But for those who opted to journey to the US-Mexico border to seek protections in the US, expulsion to Colombia now puts them thousands of miles away from the possibility of claiming asylum in the US.

The handling of the US-Mexico border has dogged the Biden administration since the early days of Joe Biden’s presidency as a growing number of migrants journey to the United States, fleeing deteriorating conditions in the western hemisphere. Republicans have recently seized on the releases of migrants — some of whom can’t be expelled because of their nationality — citing it as another example of what they describe as the administration’s poor management of the border.

Under a public health authority, known as Title 42, authorities can swiftly remove migrants encountered at the US southern border, effectively barring those seeking asylum from doing so and marking an unprecedented departure from previous protocol. The authority was invoked at the onset of the coronavirus pandemic, despite suspicions among officials that it was politically motivated.

The White House has repeatedly referred to the Centers for Disease Control and Prevention on the future of the policy, saying the agency deems it necessary given the Delta and Omicron variants.

Last Thursday, the Department of Homeland Security returned two Venezuelan nationals to Colombia, where they had previously resided, the department told CNN, adding that flights to Colombia are expected to take place “on a regular basis.”

“As part of the United States COVID-19 mitigation efforts, DHS continues to enforce CDC’s Title 42 public health authority with all individuals encountered at the Southwest border. However, DHS’s ability to expel individuals may be limited for several reasons, including Mexico’s ability and capacity to receive individuals of certain nationalities,” DHS said in a statement, adding that the department has removed migrants to third countries in the region where they had lived or had status.

DHS has also acknowledged the precarious situation in Venezuela by granting a form of humanitarian relief for Venezuelans already in the United States.

Still, the Biden administration has continued to rely on the public health authority and recently defended it in court — a move that received criticism from immigrant advocates and Democratic lawmakers. The latest decision to expel migrants from Venezuela — a country in crisis — to Colombia reveals a further dependence on the public health authority amid a growing number of Venezuelans arriving at the US-Mexico border.

In December, US Customs and Border Protection encountered 24,819 Venezuelans at the US southern border including single adults, families and minors, up from the previous month and continuing an increasing trend. As a point of comparison, in December 2020, CBP encountered only around 200 Venezuelan migrants, according to agency data.

While tens of thousands of migrants have been turned away at the US-Mexico border, some, like South Americans, aren’t accepted by Mexico and therefore those nationals largely can’t be expelled. Under the public health authority, DHS has removed migrants to Guatemala, Honduras, El Salvador and Brazil.

Some migrants from Venezuela crossed the border in Yuma, Arizona — often flying to an airport in Mexico and then crossing at a gap along the Colorado River, cutting the journey down to just days. It’s the most viable option for many Venezuelans and Brazilians, for example, who can’t obtain a visa that allows them to work in the US — or can’t afford the years-long wait for the legal immigration process. Mexico recently put new visa restrictions in place for Venezuelans traveling to Mexico.

The US has previously taken measures to try to lower the number of migrants at the US-Mexico border. Last year, the administration started flying migrants apprehended at the southern border and subject to the Trump-era border policy linked to the pandemic to the interior of Mexico.

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

Let’s see. Colombia, a country of approximately 50 million, has taken in about 1.7 million Venezuelans. https://www.worldbank.org/en/results/2021/10/31/supporting-colombian-host-communities-and-venezuelan-migrants-during-the-covid-19-pandemic

The US, a far larger and more prosperous country with approximately 7x the population of Colombia, has taken fewer than 350,000. https://www.hrw.org/news/2021/03/09/us-temporary-protection-venezuelans

Forced migration is real, no matter what fictions and myths Administrations of both parties use to deny it.

Pretending otherwise, and that lawless deportations and “deterrence” will materially change the forces that drive it, is both immoral and ultimately futile.

🇺🇸Due Process Forever!

PWS

02-03-22

🇺🇸🗽IN MEMORIAM: BELOVED “PRACTICAL SCHOLAR” DR. DEMETRIOS G. PAPADEMETRIOU, DIES @ 75 — Renowned Migration Expert Co-Founded Migration Policy Institute, Among Many Other Life Achievements!

As reported on ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2022/01/mpi-honors-the-life-of-dr-demetrios-papademetriou.html

Friday, January 28, 2022

MPI Honors the Life of Dr. Demetrios Papademetriou

By Immigration Prof

Share

Dr. Demetrios G. Papademetriou, president emeritus and co-founder of Migration Policy Institute, and founding president of MPI Europe, died Wednesday, January 26, at the age of 75. He was one of the world’s pre-eminent scholars and lecturers on international migration, with a rich body of scholarship shared in more than 275 books, research reports, articles and other publications. He also advised numerous governments, international organizations, civil society groups and grant-making organizations around the world on immigration and immigrant integration issues.

Papademetriou began his career as Executive Editor of the International Migration Review. After stints at Population Associates International and the U.S. Labor Department, he served as Chair of the Migration Group of the Organization for Economic Cooperation and Development. He then joined the Carnegie Endowment for International Peace’s International Migration Policy Program, which in 2001 was spun off to create the freestanding Migration Policy Institute.

He co-founded Metropolis: An International Forum for Research and Policy on Migration and Cities, which he led as International Chair for the initiative’s first five years and then served as International Chair Emeritus. He was Chair of the World Economic Forum’s Global Agenda Council on Migration (2009-11) and founding Chair of the Advisory Board of the Open Society Foundations’ International Migration Initiative (2010-15).

Papademetriou, who traveled the world lecturing and speaking at public conferences and private roundtables, also taught at the University of Maryland, Duke University, American University and the New School for Social Research.

MHC

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

Demetrios was one of those amazing, charismatic, “larger than life” intellects who could “electrify” a room just by walking through the door. His ability to “connect” with audiences far beyond the world of scholarly research — and to appreciate the “human lives and heroic stories beyond the number-crunching” was unparalleled.

He led in “putting immigration scholarship on the map” — as an academic discipline, a ground-breaker in clinical legal education, and a basis for progressive migration and human rights policies in government and NGOs. Through his work at MPI, Carnegie, and other institutions, he used scholarship to spur and encourage practical “grass roots” reforms in our immigration system and, indeed, in the international migration system. Many leaders of today’s “New Due Process Army” can trace their “practical scholarly roots” to Demetrios’s inspiration and example!

Perhaps ironically, another recent posting on ImmigrationProf Blog points out how the Biden Administration has disturbingly and inexcusably failed to “cash in” on the full potential of the extraordinary growth in “applied migration scholarship” fueled by Demetrios, his long time friend and colleague former Immigration Commissioner Doris Meissner, MPI Executive Director Donald Kerwin, Jr., and other giants in the field.

Rather, the Biden Administration has veered far off-track on immigration, human rights, and social justice issues by placing politicos without immigration expertise and lacking both moral courage and belief in fundamental human values in charge of its flailing and failing immigration mess. In particular, these tone-deaf politicos have failed to “connect the dots” between immigrant justice and racial justice in America.

Not surprisingly, that has resulted in across the board failures, unfulfilled promises, and angry, disgruntled potential allies on meaningful reforms in both areas. This, in turn, has demoralized and turned off the younger, dynamic, diverse, progressive, expert immigration, human rights, and social justice leaders who are key to the future of the Democratic Party and the preservation of American democracy.

https://lawprofessors.typepad.com/immigration/2022/01/mpi-honors-the-life-of-dr-demetrios-papademetriou.html

Talk about a lose-lose-lose approach! And, I guarantee that it hasn’t garnered one vote of support from “hard-liners” and “naysayers” who continue to mindlessly and dishonestly babble about “open borders!”

I’m not exaggerating here. Yesterday, I was on (Zoom) panels in Houston and DC. Both audiences and fellow panelists were stunned and outraged by the betrayal of due process, good government, expertise, common sense, and human values demonstrated by Biden’s “Miller Lite” approach to asylum at the Southern Border, the intentional mistreatment of migrants of color, and Garland’s beyond dysfunctional and chronically unjust Immigration Courts!

Particular disgust was reserved for the Administration’s intentional, continued, cowardly abuse of Haitian migrants. That, actually says more about their attitude toward true racial justice than the promise to appoint a Black Woman to the Supremes.

Welcome and long overdue as the latter is, it isn’t going to change the result on any major issue before this version of the Supremes. By contrast, the Biden Administration’s anti-Haitian policies are actually harming, dehumanizing, endangering, and even potentially killing Black migrants every day! No wonder they want to “sweep truth under the rug.”

It’s exactly the type of “applied stupidity,” willful blindness, intentional cruelty, and disdain for common sense, humanity, facts, and relevant experience that Demetrios would have resisted!

🇺🇸Due Process Forever!

PWS

01-29-22

☠️HE SURVIVED 22 YEARS IN CAL STATE PRISONS — 2 YEARS IN DHS DETENTION “BROKE” HIM, DESPITE WINNING HIS CASE BEFORE AN IJ! — Welcome To America & Biden’s Gulag, Where Asylum Seekers Get Treated Worse Than Convicted Felons!🤮

https://www.sfchronicle.com/opinion/article/I-ve-done-time-in-12-California-prisons-Yuba-16804293.php

Carlos Sauceda writes in the SF Chron:

In 2017, after serving 22 years in prison for a gang-related murder I committed as a teenager, the California parole board granted me early release due to my rehabilitation and leadership while incarcerated. I was incredibly fortunate to get what I thought would be a second chance at life, and I committed myself to using my freedom to improve the world around me.

But I had to put those plans on hold. Because I was undocumented, I was immediately transferred to Immigration and Customs Enforcement custody at Yuba County Jail. The two years I spent there awaiting a decision on my immigration status were far worse than the over two decades I spent in 12 different prisons serving out my sentence.

Yuba County Jail is the last county jail under contract with the federal government to hold immigrant detainees in California. For the two years I fought my immigration case, I was psychologically, emotionally and physically abused by the Yuba County Sheriff’s Department. Some of the cells I lived in had no drinking water, others did not have working toilets and others had no lights, leaving me and other detainees in the dark all day long. My stress increased and my blood pressure became dangerously high. In 2018, after a year at the jail, I finally won my immigration case. But Department of Homeland Security attorneys appealed the judge’s decision, keeping me separated from my family, fueling my depression and suicidal thoughts. After another year of fighting the appeal, I had to make an impossible choice: Die inside Yuba County Jail or risk imminent death in my native land. After two years of inhumane treatment, I chose the latter. I signed the paperwork for self-deportation and went back to my home country.

My story is just one of thousands playing out in federally contracted county jails and privately operated ICE detention centers across the country. Despite President Biden’s campaign promise to end the use of private prisons for immigration detention, for undocumented people being held at Yuba County Jail, no relief is coming.

Yuba County Jail has a long history of violating national detention standards. From 2010 to 2021, ICE’s own detention office conducted at least eight inspections at the jail and found 171 violations. Among those violations, inspection officials determined that a sergeant, who was involved in two use-of-force incidents at the jail, participated in his own reviews. As a result of the findings, 24 members of Congress wrote a letter to Secretary of Homeland Security Alejandro Mayorkas demanding that the department terminate ICE’s contract with Yuba County. At the state level, California legislators passed SB29, forbidding local governments to enter into new detention agreements with ICE. But as The Chronicle’s reporting pointed out, in 2018, the same year SB29 took effect, ICE and Yuba County officials “quietly extended their contract” to 2099.

Why would Yuba County officials establish an indefinite contract with ICE as the rest of the state moves to end the use of its jails by federal immigration authorities? Follow the money. The contract with ICE earns the Yuba County Sheriff’s Department a minimum of just under $24,000 a day, whether or not any detainees are being held in the jail, totaling about $8.66 million per year.

When the pandemic hit, conditions inside the jail worsened. Following an April 2020 class-action lawsuit, court orders led the jail to decrease its detainee population. Thanks to the work of human right advocates and formerly detained undocumented people like myself, and others, the jail went from having 127 detainees in May 2020 to zero in late 2021. For those of us who had fought, staged hunger strikes and protested, both inside and outside the jail, it felt like we were finally seeing the end of immigrant detainment.

But our celebrations were brief. In the two months that the jail had no detainees, the county’s contract with ICE was still in place, earning it an estimated $1.4 million. And in December, ICE transported its first detainee back into the jail. As of this week, three people are now detained there under ICE custody.

The repopulation of the jail by ICE only means we will fight even harder for liberation and the termination of the contract. Over the past year, and despite being thousands of miles away, I found ways to raise my voice. I connected with others who were detained alongside me and who were also deported and encouraged them to join the fight. My wife, along with other mothers, sisters, and family members joined us as well. We hosted Instagram live videos as a space for storytelling. For weeks, I met with congressional offices and shared my story and the story of others, which ultimately led to their support.

At a recent Yuba County Board of Supervisors meeting, newly named Chairman Randy Fletcher said that the claims made in a letter sent by the ACLU to the Yuba County sheriff and Board of Supervisors about the multiple violations and unlawful conditions at the jail were not true. “They make a lot of accusations. … It’s not true. It’s just not true,” he said. But I and the other undocumented people who were detained there know what we suffered through is true. And it needs to stop.

. . . .

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

Read the rest of the story at the link.

Coercion and punishment have long been part of the plan. That’s because the Supremes have fabricated the concept that “civil” imprisonment isn’t “punishment.” Pure balderdash!

Also, how does a jail get paid $1.4 million by taxpayers for nothing? Sounds like a “fleecing of America.”

But, of course, neither Garland nor Mayorkas bother to look into these questionable practices. Rather curious in light of the recommendation of a “select task force of experts” at the end of the Obama Administration that detention contracts (which frequently make establishing accountability for abuses difficult or impossible) be ended and that DHS phase out unnecessary detention.

Lack of accountability for DHS Detention is a chronic problem. So are defective bond procedures by EOIR that several Federal Courts have found unconstitutional, but which Garland continues to defend! Arbitrary bond procedures, weak internal appellate review, and lack of helpful precedents all feed the system.

Also, EOIR’s brushing aside the intentional coercion, lack of access to counsel, absence of resources, inability to prepare and document cases all contribute to the dangerous dysfunction. New, independent, expert, progressive “real judges” at EOIR would not allow Mayorkas and Garland to keep sweeping these abuses under the carpet!

Perhaps that’s why Garland has been content to allow his “courts” to malfunction using a majority of Trump/Miller holdovers and some notorious “go along to get along” bureaucrats as “judges.” Voices of expertise and reason among the IJs, and there are some, are often “silenced,” “neutered,” or “intentionally frustrated” by a BIA stacked with apologists, sometimes flat-out advocates, for DHS Enforcement and anti-immigrant policies.

Meanwhile, journalists, advocates, and those who have experienced “The Gulag” first hand need to keep it in the headlines, continue to litigate vigorously against it, and make a record of the disgraceful gap between what America claims to stand for and what it actually does! And, they would do well to “keep turning up the heat” on Garland’s “star chambers” and on his own lack of accountability for the daily disasters that unfold under his auspices.

🇺🇸Due Process Forever!

PWS

01-27-22

🏴‍☠️🤮👎🏽⚰️🤯 SCOFFLAW BIA BREAKS RULES, VIOLATES OWN PRECEDENTS, HEMORRHAGES FUNDAMENTAL UNFAIRNESS IN HELPING DHS, 7TH CIR. FINDS IN LATEST REBUKE OF GARLAND’S STAR CHAMBERS — “Culture Of Denial,” Anti-Immigrant Bias Continue Unabated @ Garland’s EOIR!

Star Chamber Justice — At ICE, there’s no need to bother presenting evidence, arguments, or making a record below because we know we can “rack up” victories before our stooges at Garland’s BIA!

Dan Kowalski reports for LexisNexis:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca7-slaps-the-bia-again-osmani-v-garland

CA7 Slaps the BIA Again: Osmani v. Garland

Osmani v. Garland

“In 2019, the Department of Human Services (“DHS”) sought to remove Ilir Osmani, a refugee of the Kosovo War, based on his criminal convictions and crimes of moral turpitude. An Immigration Judge (“IJ”) granted Osmani’s petition for an adjusted status under 8 U.S.C. § 1159(a) and for waiver under 8 U.S.C. § 1159(c). The Board of Immigration Appeals (“BIA”) reversed the IJ’s ruling based on new arguments the government, after failing to take any position before the IJ or to provide any notice to Osmani, raised for the first time on appeal and denied Osmani’s motion to remand for additional factfinding on the conditions in Kosovo. We find the BIA legally erred by considering arguments the government did not present to the IJ, put Osmani on notice of, or develop any record evidence to support. In denying Osmani’s motion to remand, the BIA also abused its discretion by engaging in impermissible factfinding. Accordingly, we grant Osmani’s petition for review and remand to the BIA. … Accordingly, we GRANT the petition for review; VACATE the Board’s decision in this case; and REMAND to the BIA for further proceedings consistent with this opinion.”

[Hats way off to pro bono publico counsel Illyana A. Green, Chuck Roth and Matthew E. Price! Query: ICE removed Osmani in 2021…will they bring him back? Listen to the oral argument here.]

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

The outrageous errors, pro-DHS bias, gross incompetence, and lack of judicial qualifications reflected by this BIA decision is absolutely stunning, as is the Biden Administration’s:

Deportation of the respondent while this court challenge to this error-fest was pending (the respondent was removed based on this illegal order in April 2021, well after the Biden Administration took office and a month after Garland was sworn in as Attorney General);
The DOJ’s prima facie unethical defense of the BIA’s denial of due process, failure to follow precedent, clear abuse of discretion, and legally indefensible actions here;
Continuing abuse of scarce pro bono resources and Article III judicial time by not bringing in fair, expert, new, due–process-dedicated BIA judges who would get these right in the first place, set proper precedents, and follow them (rather than avoiding them when they spell victory for the individual);
Also, who at DHS authorized an improper appeal on this record? (Obviously, DHS recognized that given the BIA’s pro-DHS bias, they could “mail it in” before the IJ, take a frivolous appeal, and STILL HAVE THE BIA HAND THEM A TOTALLY UNDESERVED VICTORY!)

Folks, this is a Democratic Administration enabling this pattern of biased, unprofessional, and illegal conduct against immigrants which should bring a smile to Stephen Miller’s face! It’s also unfair and demoralizing to Immigration Judges who take the time to get it right and grant relief only to be arbitrarily and illegally reversed by Garland’s unqualified BIA on appeal!

Garland should have replaced leadership at EOIR and OIL, and also replaced the BIA, on “day one.” Instead, more than a year into a supposedly due-process-oriented Administration, the garbage continues to flow into the Article IIIs from Garland’s EOIR unabated, while the indefensible continues to be defended by OIL, like it’s “business as usual.” This happens because Garland’s message is that “Dred Scottification” of “the other” will be tolerated, defended, and protected at his DOJ.

Why is Garland being allowed to get away with running this system into the ground, ignoring due process, “blowing off” judicial and legal ethics, treating migrants unfairly, and building the unnecessary backlog at record levels?

🇺🇸Due Process Forever!

PWS

01-25-22

🏴‍☠️🤮👎🏽INJUSTICE IN AMERICA: TIME MAGGIE SPOTLIGHTS GARLAND’S BROKEN “COURTS,” BURGEONING BACKLOGS!

Jasmine Aguilera reports for Time:

https://time.com/6140280/immigration-court-backlog/

Roughly 1.6 million people are caught up in an ever-expanding backlog in United States immigration court, according to new data tracking cases through December 2021. Those with open immigration cases must now wait for a decision determining their legal status for an average of 58 months—nearly five years.

Though the immigration court backlog has been getting longer for more than a decade, a deluge of new cases added between October and December 2021 significantly worsened wait times, according to the Transactional Records Access Clearinghouse (TRAC), a research institution at Syracuse University that obtained the figures through Freedom of Information Act requests. The backlog increased by nearly 140,000 during that period, the fastest growth on record and the direct result of an uptick in arrests by agencies housed under the Department of Homeland Security (DHS): Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP).

. . . .

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

Read Jasmine’s complete article at the link!

1.6 million is just the “trip of the iceberg.” Each of those human beings potentially has family, friends, co-workers, teachers, fellow students, relatives, employers, employees, neighbors, sponsors, fellow parishioners, students, investors, etc. tied up in the trauma of their wait and the often arbitrary and capricious results once they get a final hearing. Virtually every community in America has a stake in Garland’s tragically broken “court” system.

Just applying TRAC’s math from recent studies, even in a time of inculturated anti-immigrant, anti-asylum bias and bad, skewed interpretations at EOIR, more than half of those in backlog would earn the right to stay in America if they could get an individual hearting. But, in Garland’s broken and mis-prioritized system, “getting a merits hearing” is a “big if.” Many of those in the backlog are already doing “essential work” or have the job skills we need if their only be normalized. Garland’s failure is America’s trauma, and wasted human capital, and squandered Government resources.

A few other “lowlights:”

“Fewer than 1% of those new cases brought by ICE and CBP beginning in October 2021 involved alleged criminal activity.” So much for “new priorities.”
“A spokesperson for the Department of Justice’s Executive Office of Immigration Review (EOIR), which oversees the immigration court system, said courts have been relying on technology to continue operations, but blamed the on-going pandemic for the worsening backlog.” An absurdist “cop-out,” as those familiar with EOIR’s chronically bad technology and failure to adequately prepare and deal with COVID know. Poor and imperious communication with the public has also been a feature of EOIR (mis)management during the pandemic!
“One reason is an ever-increasing number of new immigration cases swamping the system, as both the Obama and Trump Administrations issued millions of deportation orders.” Truth is that despite DHS and EOIR attempts to shift blame to the victims, the backlog is largely self-created.
“But the problem cannot be solved by asking the existing immigration judges to work harder or faster, Long says.” Nor, with due respect to TRAC’s Susan Long, will it be solved by throwing more judges and resources into a biased, unfair, totally dysfunctional, anti-due-process, broken system. Fix the system first with common-sense progressive reforms, replace bad judges, hire new judges on a merit basis, with outside expert input, focusing on hiring judges with records of commitment to due process and fundamental fairness and established immigration/human rights expertise! Then, once fairness, expertise, quality, and efficiency have been established and institutionalized, decide whether the system should be expanded and, if so, how to do it. (Hint: Many experts believe that 500 completions annually is the most reasonable expectation for well-functioning, expert Immigration Judges complying with due process and “best practices.” That means the current system of approximately 560 IJ’s has a maximum capacity of 250,000 to 300,000 completions annually. DHS Enforcement must be required to work within those realistic limits in bringing new cases before the court.)
“While the dedicated docket was designed to address the backlog for recently-arrived families, it failed to take into account the staggering systemic failures at work, according to immigration lawyers, advocacy organizations and elected officials.” It was a “proven failure enforcement gimmick” as experts told Garland from the “git go.” A competent AG committed to due process, fundamental fairness, and the rule of law would have rejected this bad idea out of hand.
“There’s a long, long laundry list of things that have been tried in the past,” Long says. “It’s not going to be a quick fix.” I respectfully dissent! This isn’t rocket science! It’s a combination of cleaning out the deadwood, bringing in competence and progressive expertise in judging and administration, common sense, long overdue progressive reforms, creative thinking, appointing a BIA of expert appellate judges to issue sound legal precedents, require best practices, and hold judges, DOJ officials, and DHS personnel accountable for their often intentional undermining of justice in Immigration Court. As alluded to by Long, Garland had the incredible advantage of a laundry list of “enforcement and just pedal faster gimmicks” that are proven failures! Garland knew in advance what NOT to do and what NOT to try. He also had access to an impressive array of practical scholarship and that produced sound, straightforward recommendations on how to fix the system. He had a golden opportunity to shake up the system on “Day One,” “clean house,” and bring in the new progressive experts and dynamic leaders to fix the system. Yes, I recognize that as Long suggests, the system won’t be fixed “overnight.” But, had Garland acted promptly and timely, the system could already be showing dramatic improvements on all levels. You have to start the process of reform and improvement somewhere. Garland’s dilatory approach to EOIR has greatly increased the difficulty. But, fixing EOIR is still “low hanging fruit” for the Administration if they only had the backbone and vision to “blow up” the current failed and flailing EOIR and bring in and empower experts to start taking names, kicking tail, and implementing due process and best practices reforms.
Garland apparently has operated on the false premise that fixing “Immigration Courts” isn’t a priority and that advice and assistance of progressive experts can just be “blown off” in favor of the type of politically-driven, bogus-enforcement-oriented, bureaucratic nonsense that is endemic at DOJ and DHS. Not happening! And continued aggressive litigation by the NDPA is an essential element of stopping the injustice and holding Garland and his flunkies accountable. That litigation is not going to stop either unless, and until, one way or another, Garland is forced to take notice and make the obvious progressive reforms and improvements.

I’m no fan of Virginia’s new GOP neo-fascist Attorney General Jason Miyares. But, before the end of Inauguration Day, the heads were rolling, and his message was very clear: liberalism, environmental protection, racial justice, good government, and public health are out — far-right neo-fascism is in! Get with the program or get out! Republicans loved it, Dems hated it. But it happened!

By sharp contrast, Garland is still running EOIR with much of the same personnel and many of the same broken and bad policies of his predecessors, Trump, and Stephen Miller. That’s a good illustration of why “Democrats can’t govern” while Republicans constantly outflank them and dismantle the system in short order. What’s the future of a party that doesn’t recognize its own self-interest, the common good, and act and govern accordingly?

🇺🇸Due Process Forever!

PWS

01-24-22

🤯👎🏽MORE CIRCUIT REJECTS FOR GARLAND & PRELOGAR — 1st & 3rd Cirs “Just Say No” To DOJ’s Ill-Advised Positions On “Theft Offense” & Derivative Citizenship! — It’s Part Of A Larger Leadership Failure @ Garland’s Broken DOJ!

From Dan Kowalski @ LexisNexis:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-categorical-approach-da-graca-v-garland

CA1 on Categorical Approach: Da Graca v. Garland

Da Graca v. Garland

“Aires Daniel Benros Da Graca petitions for review of a decision of the Board of Immigration Appeals (the “Board”) affirming his order of removal and denying his requests for cancellation of removal and voluntary departure. Because we find that a conviction under Rhode Island General Laws (“RIGL”) § 31-9-1 is not categorically a theft offense, we grant the petition for review, vacate the decision below, and remand for further proceedings.”

[Hats off to Randy Olen and Robert F. Weber!]

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

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-derivative-citizenship-victory-jaffal-v-director

CA3 Derivative Citizenship Victory: Jaffal v. Director

https://www2.ca3.uscourts.gov/opinarch/203148p.pdf

“Appellant Imad Jaffal, born in Jordan, seeks a declaration that he is entitled to derivative U.S. citizenship under former 8 U.S.C. § 1432(a). That statute provides that “a child born outside the United States automatically acquires United States citizenship if, while the child is under the age of eighteen, the parent with legal custody of the child is naturalized while that child’s parents are legally separated.” Jaffal’s father was naturalized when Jaffal was seventeen years old, and Jaffal presented evidence to the District Court that he was in the sole legal custody of his father when his father was naturalized and his parents were separated. The District Court, however, declined to accept Jaffal’s evidence of his parents’ divorce. Because we conclude that was error, we will reverse the order of the District Court and remand the matter with instructions to issue a judgment declaring Jaffal to be a national of the United States.”

[Hats way off to Alexandra Tseitlin!]

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

Here’s my favorite quote from Judge Torresen’s decision in Da Garcia v. Garland:

Despite this apparent disconnect between RIGL § 31-9-1 and the Board’s definition of theft offense, the Board in Da Graca’s case determined that to prove the statute’s overbreadth, the Petitioner was required to identify actual cases in which Rhode Island had enforced the statute against de minimis deprivations of ownership interests. Da Graca contests the Board’s imposition of an actual case requirement and argues that he “need not necessarily proffer specific examples of Rhode Island prosecutions in order to establish a ‘realistic probability’ that the state would apply its statute to conduct that falls outside the generic definition of a crime.” We agree with Da Graca.

Essentially, Garland’s BIA “makes it up as it goes along” to reach a denial, then Prelogar’s DOJ attorneys defend the illegal result. Sounds like a really bad system, lacking accountability, expertise, common sense, and, sometimes, professional responsibility.

Lest you think that the legal nonsense being produced by Garland’s BIA and the USCIS is “below Prelogar’s radar screen” in her exulted position, that’s NOT true! Every adverse decision suffered by the USG must be reported to the SG’s Office with an analysis and recommendations from the agency’s attorneys, the litigators who handled the case, the appellate section of litigating division (here the Civil Division), and the SG’s staff. No appeal, petition for rehearing en banc, or petition for cert. can be filed without the express authorization of the SG’s Office.

So, Prelogar is well aware of the bad positions, unfairness, and poor work product DOJ attorneys are defending (sometimes with a lack of candor or misleading the courts) and their abuses of the time of the Article IIIs.

Even with the “real” (Article III) Federal Courts moving markedly to the right (following four years of Trump-McConnell appointments and eight years of lackadaisical performance by the Obama Administration), and rules that strongly favor the Government on judicial review, DOJ’s haphazard performance under Garland and Prelogar continues to earn a stream of avoidable “kickbacks” from the Article IIIs. The DOJ system is broken in many places — EOIR is just the most obvious, most pressing, and most easily addressed area of failure.

There is a tendency of immigration advocates, perhaps still hoping to curry favor with an Administration that largely ignores and despises them, to overemphasize the largely cosmetic and low impact “positive” changes made by the Biden Administration. See, e.g., https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/biden-at-the-one-year-mark-a-greater-change-in-direction-on-immigration-than-is-recognized;

https://lawprofessors.typepad.com/immigration/2022/01/biden-keeps-trump-immigration-policiesand-stephen-miller-is-loving-it.html

At the same time they acknowledge but downplay the existential crippling effects of Garland’s failure to bring progressive reforms to EOIR, his defense of disgraceful, immoral, and inhumane “Miller Lite” positions in Federal Court, his intentional indifference to human suffering and the complete breakdown of the rule of law at our borders, and his disdain for removing the Trump enablers, deadwood, and poor lawyers from DOJ — at all levels.

I have a radically different perspective on the future of meaningful progressive immigration reforms, based on my nearly 50 years of involvement with the system on both sides and at all levels — more than most folks.

There will be no meaningful, sustainable immigration reforms without a radically reformed, remade, Immigration Court system with a judiciary of due-process-oriented progressive experts who have the courage to “speak truth to power,” stand up for the legal, constitutional, and human right of the most vulnerable, and put integrity, humanity, and the best interests of our nation above career advancement, survival, or “ingratiation with the powers that be.” That’s NOT Garland’s DOJ — which remains largely the out of control, often ethically challenged morass that he inherited from his predecessors.

Let’s not forget that through intentional misuse of precedents, weaponization of EOIR, and White Nationalist litigation strategies, Jeff Sessions was able to largely disable the entire asylum system, including USCIS Asylum Offices, and shift USCIS Adjudications from service to “enforcement only,” in preparation for the “final eradication” of asylum and crippling of our entire legal immigration system by his crony and former subordinate, Stephen Miller. And, the folks who helped him do that and “went along to go along” with abuses are still largely on board and in key positions in Garland’s DOJ — actually operating with his apparent “stamp of approval.” Outrageous!

From a due process, human rights, progressive, good government, equal justice, racial equality standpoint, as well as from any aspect of moral leadership on fundamental values, Garland’s performance at DOJ has been unacceptable. Has Garland visited any of the camps in Mexico or gone to the “New American Gulag” to witness first-hand the human carnage for which he is responsible? Heck no! That’s a job for progressive experts whose input and advice he then shuns, ignores, and “tunes out!”

For progressive advocates to downplay the Biden Administration’s gross failures or “over-cheer” incremental progress that means little without fundamental reforms at EOIR and the DOJ only deepens the fecklessness of their own positions and furthers the disrespect and under-appreciation of their efforts, potential power, and value that has become an endemic feature of the Democratic Party.

The Biden Administration might talk a good game, particularly around election time; but, in reality, they are governing largely in fear of and like nativist Republicans — but getting no “political return” whatsoever for betraying their supposed values and their base (see, Catherine Rampell). Advocates reward and tolerate such disgraceful and intellectually dishonest conduct at their own peril!

Meanwhile, Suzanne Clark, President of the U.S. Chamber of Commerce, certainly no “progressive shill,” speaks truth about the need for and our ability to accept more immigrants:

Allowing more immigrants into the US would help mitigate both soaring inflation and the current labor shortage, the CEO of the US Chamber of Commerce said.

“We need more workers,” Suzanne Clark told reporters Tuesday, per CNN. “We should welcome people who want to come here, go to school, and stay.”

“That is a place the government could be particularly helpful and we do believe it would be anti-inflationary,” she said, per CNN.

https://apple.news/AT8YmOLhiTOCuUFZijTLJCQ

Those immigrants are right in front of us: rotting in camps at the border, being returned to danger or death with no process — both as a result of Garland’s failure to re-establish our legal asylum system at the border — or languishing in Garland’s mushrooming 1.6 million Immigration Court backlog! It doesn’t take a “rocket scientist” to see that instead of wasting time, money, and resources on mindless “enforcement” intended to deter and discourage those who might help us by helping themselves, we should have set up fair and timely processing systems, staffed by experts, that would identify the many individuals at the border and already in the U.S. who can qualify to remain under fair and properly generous interpretations of asylum law, withholding, CAT, U & T visas, “stateside processing waivers,” cancellation of removal” (for those already here), TPS, and other possibilities.

This is just as much”law enforcement” and “maintaining the integrity of our system” as are the efforts to increase deportations, terrorize communities, or close borders to “deter” migrants (primarily those of color) that has been practiced to some degree by every Administration. It also makes sense, economically, practically, and ethically.

It starts with an Attorney General and DOJ with the courage and vision to end the “deterrence only” misconstruction of our laws and stand up for the legal and human rights of migrants, regardless of race, color, creed, or manner of entry. That’s not what Garland has been doing to date! Too bad, because there will be no resolution of immigration issues — nor will there be racial justice in America — without an AG who will stand up for the real rule of law rather than the parody of the law and justice purveyed by Miller and his White Nationalists and still being parroted and too often defended by Garland and his minions.

🇺🇸Due Process Forever.

PWS

01-21-22

TAL KOPAN @ SF CHRON: NO DUE PROCESS HERE☹️: GARLAND’S DESPICABLE “STAR CHAMBERS” CHEERED “ENGINEERED IN ABSENTIA” DEPORTATION ORDERS — Garland Fails To Provide Justice @ The Border Or In Biased “Courts,” But Inflicts Outrageous “Miller Lite” Anti-Due-Process “Gimmicks” On Vulnerable Migrants!🤮🤮🤮🤮🤮👎🏽👎🏽👎🏽👎🏽👎🏽

Immigration court officials cheered results of fast-tracked deportation orders, emails reveal

WASHINGTON — Last June, the San Francisco Immigration Court quietly tested a new idea: Fast-track the cases of immigrants whose mail wasn’t reaching them. In the trial run, 80% of the immigrants scheduled were ordered deported for not showing up.

Top officials were effusive with praise over the results, emails obtained by The Chronicle show, and rushed to set up more hearings: “Very positive!” emailed one of the top supervising immigration judges overseeing the nation’s hundreds of courts.

The newly uncovered emails reveal that the fast-track docket for immigrants with returned mail, which was first reported by The San Francisco Chronicle last fall, was cheered at the highest levels of the courts and pursued with full awareness that scores of immigrants would likely be ordered deported as a result.

Advocates and attorneys for immigrants raised concerns about the practice as a sort of deportation conveyor belt last year, as many of the lawyer-less immigrants may have no idea they missed a court hearing, much less that they were ordered deported during it, because they didn’t know how to update their address with the court or thought that Immigration and Customs Enforcement would do so on their behalf. The immigration courts are run by the Justice Department, with judges hired and ultimately overseen by the attorney general.

The emails were obtained through a Freedom of Information Act request by a nonprofit watchdog group, American Oversight, prompted by The Chronicle’s reporting. The group shared the records with The Chronicle.

The Department of Justice declined to comment specifically on the emails, noting that removal orders for failing to appear in court are legally valid and that issuing notices with new hearing dates gives unreachable immigrants an opportunity to appear in court and avoid a deportation order.

Chronicle analysis of available data last year found that the practice significantly increased the number of immigrants who were ordered deported for not being present in court, called an “in absentia” removal order. As many as 173 people were given deportation orders because of such proceedings in August and September — a nearly ninefold increase from the 20 similar orders given the previous seven months combined.

More here:

https://www.sfchronicle.com/politics/article/Immigration-court-officials-cheered-results-of-16791798.php

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

For Garland’s “judiciary,” the object appears to be avoiding fair hearings rather than conducting them! Perhaps, that’s understandable (not justifiable) considering how poorly many of his courts’ decisions fare upon judicial review in the Article IIIs.

For his cowardly attacks on migrants and backlog-building mismanagement and misdirection of EOIR, Garland gets “Courtside’s” coveted “Five Puke-Five Thumbs Down Award!” 🤮🤮🤮🤮🤮👎🏽👎🏽👎🏽👎🏽👎🏽

While Garland is failing in his job, his concerted efforts to break apart and “alienate” key segments the Dem coalition that elected Biden is succeeding and should pay great dividends (for the GOP and Trump) in the Fall Midterms! No wonder Garland’s running the system into the ground using “Trump/Miller holdovers.”

Garland and his equally poorly performing lieutenants (Monaco, Gupta, Clarke, Prelogar) are giving us a “Master Class” in “Why Dems Can’t Govern and Blow Elections 101.”

A party that lacks the courage to act on the values it espoused to get elected doesn’t stand for anything at all!🤮👎🏽

Maybe lots of Dems pulled the lever because they wanted more of Gauleiter Stephen Miller’s White Nationalist policies. But, I haven’t heard of any!

🇺🇸Due Process Forever!

PWS

01-20-21

🤮🏴‍☠️☠️⚰️ GARLAND’S “SHAMEFUL RECORD” GETS EVEN WORSE AS HE DEFENDS STEPHEN MILLER’S DEGRADATION OF HUMANITY AT OUR BORDERS!

Biden’s “Shadow Attorney General” speaks through the likeness of Merrick Garland! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

Priscilla Alvarez reports for CNN:

https://www.cnn.com/2022/01/19/politics/title-42-biden/index.html

. . . .

“Today we heard the same unconvincing arguments from the Biden administration that we’ve been hearing for the last year about this xenophobic and baseless policy, arguments that have already been rejected in federal court. Title 42 unjustly and unnecessarily inflicts harm on families seeking asylum at our border, and we will continue to work tirelessly to ensure that this policy ends once and for all,” said Diana Kearney, senior legal adviser with Oxfam America, in a statement.

In a recently released report, Human Rights First found nearly 9,000 reports of kidnappings and other violent attacks against people who had been expelled to Mexico or blocked from seeking protection in the US.

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

Read Priscilla’s full story on the bottomless depths to which Garland has taken American “justice” and the Department of “Justice” at the link.

I can always count on Garland to illustrate and punctuate my points about his unfitness for the job of achieving racial equality, re-establishing the rule of law, and promoting human rights in America, not to mention his total unsuitability and inability to run a fair, impartial, due-process-oriented court system! He probably would have been right at home with the “GOP Six” on the Supremes.

🇺🇸Due Process Forever!

PWS

01-20-22

Joseph A. Vail Asylum Workshop shares valuable immigration insights in the era of the Biden Administration

🇺🇸Due Process Forever!

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Nick Miroff & Arelis R. Hernandez report for WashPost:

🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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Dan Kowalski reports for LexisNexis:

Tomas-Ramos v. Garland

🇺🇸Due Process Forever!

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DISCLAIMER: While I have been inspired by, and drawn on, the work of my friends Nolan & Michele, this posting is my view and does not necessarily represent either of their views on MPP, its merits, and/or the litigation challenging it.

Nolan writes on The Hill:

A Better Due-Process- Focused Approach To “Remain in Mexico:”

🇺🇸Due Process Forever!

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Priscilla’s latest:

🇺🇸Due Process Forever!

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As reported on ImmigrationProf Blog:

🇺🇸Due Process Forever!

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Carlos Sauceda writes in the SF Chron:

🇺🇸Due Process Forever!

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Dan Kowalski reports for LexisNexis:

CA7 Slaps the BIA Again: Osmani v. Garland

🇺🇸Due Process Forever!

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Jasmine Aguilera reports for Time:

🇺🇸Due Process Forever!

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From Dan Kowalski @ LexisNexis:

CA1 on Categorical Approach: Da Graca v. Garland

CA3 Derivative Citizenship Victory: Jaffal v. Director

🇺🇸Due Process Forever.

Related posts:

Immigration court officials cheered results of fast-tracked deportation orders, emails reveal

🇺🇸Due Process Forever!

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Priscilla Alvarez reports for CNN:

🇺🇸Due Process Forever!

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