"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Divide and conquer is a good military strategy but a bad judicial one. Judges must consider how related facts weave to- gether into a narrative.
Chinese officials caught Cha Liang practicing his faith, so they beat, jailed, and then threatened him. When he sought asy- lum, the Board of Immigration Appeals minimized the threats and physical abuse as discrete incidents. But Liang’s twenty- minute beating and fifteen days in jail made the later threats more menacing. Because the Board should not have ignored this context, we will grant the petition and remand.
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Perhaps unwittingly, Judge Bibas’s use of a military analogy for EOIR “judging” is very, very apt! After four years of corrupt, White Nationalist, Stephen Miller inspired “leadership” and “judicial selections,” far, far too many judges and others at today’s EOIR view immigrants and their attorneys as “the enemy.” By contrast, they think of their “partners” at DHS as their “comrades in arms” against Stephen Miller’s fabricated “alien invasion” — a euphemism for “replacement theory” and other racist tropes that were seldom far below the surface of Trump-era immigration policies and actions.
It’s tempting to blame this entire mess on theTrump regime. But, sadly, manifestations of this problem were present well before 2017.
I remember an Immigration Judge Conference where, strangely, a recently appointed IJ, a former government prosecutor, was given an “instructor slot” at small group training. This Judge proceeded to repeatedly refer to the the DHS as “we” and the respondents and their lawyers as “them” as he enthusiastically described Government litigation “victories” while ignoring or downplaying Circuit Court decisions that had found serious flaws in EOIR judging and DHS legal positions.
That individual went on to a “judicial career” at EOIR that consistently demonstrated a disturbing and inappropriate inability to view those humans coming before the Immigration Court and their lawyers as anything other than “the enemy!” So, the ethical, cultural, and quality control problems at EOIR are very deep-seated.
Remember, this is a broken agency that once, but no more, was supposed to stand for “through teamwork and innovation, become the world’s best administrative tribunals guaranteeing fairness and due process for all.”
As the recent “John Gruden Episode” in the NFL shows, “corrosive culture” remains a huge problem in professional football. Similarly, EOIR’s “culture of denial with a heavily dose of racism, misogyny, and xenophobia” remains every bit as much of a problem as those plaguing the NFL. Disingenuously “minimizing threats” to asylum seekers, as in this case, is “business as usual” at Garland’s anti-immigrant, anti-asylum EOIR.
While the response of the NFL’s leadership has obviously been not fully effective, it’s still much better than Garland’s “what me worry, hear nothing, see nothing” approach to the crippling problems at his dysfunctional EOIR.
Garland’s inept approach to the ongoing due process disaster at his EOIR has been perplexing, to say the least! PHOTO: Wikipedia Commons
Gruden actually was promptly forced out when the full extent of his misconduct finally surfaced. By contrast, with overwhelming public evidence of systemic failure, Garland has catastrophically failed to replace the problematic judges and inept senior leaders at EOIR with better-qualified, progressive, practical scholar-expert judges unswervingly committed to due process, fundamental fairness, and equal justice!
Although not cited by the 3rd Circuit, the BIA and the IJ also ignored the leading BIA precedent of Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998) (Panel: Hurwitz, Rosenberg, Schmidt) on the importance of considering harm cumulatively.
The concurring opinion by Judges Jordan and Ambro on past persecution as a “mixed question of fact and law” subject to a “two-step review process” is also well worth a read, particularly for those practicing in the 3rd Cir.
USCIS: Effective Oct. 1, 2021, applicants subject to the immigration medical examination must complete the COVID-19 vaccine series and provide documentation of vaccination to the civil surgeon in person before the civil surgeon can complete an immigration medical examination and sign Form I-693, Report of Medical Examination and Vaccination Record. This guidance applies prospectively to Form I-693 signed by civil surgeons on or after Oct. 1, 2021.
WaPo: Up until Oct. 1, the Postal Service said it should take no more than three days for a piece of first-class mail to be delivered anywhere in the country. After Oct. 1, it will take between two and five days. From Oct. 3 to Dec. 26, the Postal Service is raising prices on some products through a holiday season surcharge. The price hikes are modest for some products (30 cents more for first-class package service), a bit more for others ($1 more for parcel-return service, deliveries from consumers back to retailers), and heftier still for others ($5 more for priority mail, priority express mail, parcel select and retail ground services for items weighing between 21 and 70 pounds).
NBC26: Organized by Voces de la Frontera, this action aims to increase economic and political pressure on President Biden, Vice President Harris and Congressional Democrats to deliver on their promise to pass a path to citizenship in the Build Back Better reconciliation budget bill this year.
Teen Vogue: This excerpt from “Not ‘A Nation of Immigrants’” explains how Italian immigrants used Christopher Columbus to assimilate to American culture and whiteness. For decades, Native Americans and their allies have demanded the end of celebrating Columbus, rightly characterizing him as a mercenary of the Spanish monarchy, an actor in and symbol of the onset of European genocidal colonization of the Indigenous Peoples of the Western Hemisphere.
WaPo: A U.S.-based economist won the Nobel prize in economics Monday for pioneering research that transformed widely held ideas about the labor force, showing how an increase in the minimum wage doesn’t hinder hiring and immigrants do not lower pay for native-born workers.
NYGov: Threats to report a person’s immigration status can currently be treated as a crime in cases of labor trafficking and sex trafficking, but were not previously treated as potential extortion or coercion offenses.
Documented: The courts have been pushing individual hearings forward often too soon for immigrants and attorneys to properly prepare. Individual hearings, particularly for asylum cases, require rigorous preparation both from immigrants, who must recount traumatic details of their lives for a successful case, and attorneys, who must submit dozens of pages of paperwork and work alongside their clients to equip them for the court date.
WaPo: The NBPC does not encourage members to get vaccinated and has said it would like to file a legal challenge to Biden’s mandate that all federal employees be immunized by Nov. 22, but it has not yet found lawyers willing to take the case.
AP: A federal appeals court on Tuesday tossed out California’s ban on privately owned immigration detention facilities, keeping intact a key piece of the world’s largest detention system for immigrants.
Business Insider: During his appearance on Fox News, Trump repeatedly claimed that Haitians trying to enter the US are infected with AIDS… Contrary to his assertions, the prevalence of HIV among Haitian adults aged 15 to 49 is around 1.9%, according to data from the United Nations. While that’s higher than the global rate of 0.7%, reports say Haiti’s HIV prevalence rate has declined significantly in recent decades.
Law360: A U.S. Air Force veteran has another chance to fight his deportation to Trinidad after the Third Circuit found that an immigration appeals board used the wrong legal standard to bar evidence that he may be tortured if deported.
AILA: The court held that, given petitioner’s status as a pro se litigant, her Notice of Appeal was sufficiently specific to inform the BIA of the issues challenged on appeal, and thus the BIA violated her right to due process by summarily dismissing her appeal. (Nolasco-Amaya v. Garland, 9/28/21)
Law360: The Ninth Circuit confirmed that a conviction under a state assault law criminalizing HIV transmission amounts to a federal “crime of violence” for the purposes of deporting a Salvadoran man who shot his friend, saying the key common ingredient is intent.
Law360: A California law banning private immigration detention facilities and other private prisons doesn’t pass legal muster because it would impede the federal government’s immigration enforcement, a split Ninth Circuit ruled Tuesday, undoing a lower court’s decision to keep most of the law in place as litigation proceeds.
AILA: The court granted the plaintiffs’ motion for summary judgment, holding that DOS’s interpretation of several Presidential Proclamations to prevent U.S. consulates and embassies in those countries from adjudicating visas was unlawful. (Kinsley, et al. v. Blinken, et al., 10/5/21)
AILA: The parties reached a settlement to resolve the plaintiffs’ Motion for Award of Attorneys’ Fees and Costs under the Equal Access to Justice Act (EAJA), in which the government agreed to pay $1,150,000 in attorneys’ fees and litigation costs. (Flores, et al. v. Garland, et al., 9/30/21)
CGRS: The Lowenstein Project at Yale Law School submitted today an emergency request for precautionary measures against the United States on behalf of asylum seekers who face grave dangers because the Biden administration continues to illegally block and expel them. The request was submitted under Article 25 of the Rules of Procedure to the Inter-American Commission on Human Rights (IACHR).
Law360: Texas and Louisiana called on the full Fifth Circuit to reinstate a block on the Biden administration’s policy curbing immigration enforcement operations, saying Thursday that the federal government was ducking its obligation to arrest noncitizens convicted of serious crimes.
Law360: A Libyan man formerly employed as a government worker under the Gaddafi regime and his wife have filed suit in Michigan federal court against the federal government and the Chicago asylum processing center, saying five years is too long to wait for an asylum interview.
Law360: An Afghan man who worked with the U.S. government in the Central Asian country told a California federal court that the U.S. Department of State failed to protect his children from the Taliban while their visa applications are processed.
Law360: A bipartisan group of senators announced new legislation this week that would require law enforcement to obtain a warrant before searching Americans’ digital devices at the border.
Law360: The Biden administration asked the Fifth Circuit to shelve its appeal of a lower court order blocking the federal government from approving new applications to the Deferred Action for Childhood Arrivals program while it firms up the details of a replacement rule.
AILA: Office of Refugee Resettlement (ORR) announcement of an inflationary increase to the Refugee Cash Assistance program’s monthly payment ceilings, effective October 1, 2021. (86 FR 54466, 10/1/21)
Call for Examples: The Center for Gender and Refugee Studies (CGRS) is collecting the following information regarding the treatment of asylum and withholding of removal cases following Attorney General Garland’s vacatur of Matter of A-B- I/II, Matter of L-E-A- II, and Matter of A-C-A-A-. To report an outcome in your case and share any sample case documents, please follow the instructions here. To share information regarding OIL’s position in your case, please email the following to CGRS-ABTracking@uchastings.edu. To share information regarding ICE OCC’s position in your case, please complete this survey for each individual case.
Shifting cases around without working with the parties in advance to insure that the new dates are achievable is totally insane! No experienced practitioner or expert would “run the railroad” this way! But, Garland does!
To state the obvious, many attorneys practice in multiple jurisdictions and are already fully or heavily booked. Additionally, my experience was that “move ups” without consultation with both parties, including ICE ACC, often resulted in missing ICE files, unavailable witnesses, unavailable interpreters, or incomplete fingerprint reports which caused additional unnecessary continuances and yet more “ADR.”
“Motions to continue” are not the answer. The system is already backlogged. In an obvious denial of due process, it actually discourages Immigration Judges from granting reasonable continuances in a number of ways, including bogus “case completion quotas” and onerous requirements for justifications for granting continuances. It’s ADR on steroids!
An obvious solution, ignored by Garland and his subordinates:
Return “docket control” to the local Immigration Judges where it has always belonged;
Have Immigration Judges and Court Administrators work cooperatively with the local bar, the ICE OCC, and NGOs, in advance, to come up with rational scheduling procedures that meet everyone’s legitimate needs;
Encourage ICE and the local bar to work cooperatively to identify cases that can potentially be moved up for “short hearings.” Let the parties, who have a strong joint interest in rational dockets, propose the solutions, rather than having politicos impose them from above through clueless agency bureaucrats who are unqualified to “micromanage” dockets!
The real fundamental problem here: Garland is improperly trying to “run” his huge, dysfunctional court system with bureaucrats and politicos who have no recent “real life” experience representing individuals in Immigration Court.
Garland’s inexplicable determination to eschew appointing “progressive practical experts’ with the skills and courage to fix this system has become a (totally unnecessary) national disgrace!
Judge Garland’s gross mismanagement of EOIR is “ratcheting up the pressure” on practitioners in NYC and across the nation!
The treatment of Haitian refugees at the U.S. border last month — some chased by horseback agents, others huddled by the thousands under a bridge — is tragic. For reasons that are less obvious, it is also ironic. Although Americans’ centuries-long debt to the Haitian people is untaught in our schools and unacknowledged in our public discourse, the indomitable spirit of the Haitian people created the United States we know today.
Even the capsule version of Haiti’s successful fight to end slavery and for independence at the turn of the 19th century is riveting. C.L.R. James, the late Trinidadian political leader and historian of the Caribbean, wrote six decades ago:
“In August 1791, after two years of the French Revolution and its repercussions in [Hispaniola], the slaves revolted. The struggle lasted for 12 years. The slaves defeated in turn the local whites and the soldiers of the French monarchy, a Spanish invasion, a British expedition of some 60,000 men, and a French expedition of similar size under Bonaparte’s brother-in-law. The defeat of Bonaparte’s expedition in 1803 resulted in the establishment of the Negro state of Haiti which has lasted to this day.”
It’s one of the most remarkable stories of liberation that we have as a species: the largest revolt of enslaved people in human history, and the only one known to have produced a free state. But even this sweeping account understated the extraordinary role that Haiti’s rebellious enslaved played in world history.
Their success in freeing themselves in the face of the stoutest European hostility imaginable ironically made Haiti the first nation to fulfill the most fundamental values of the Enlightenment: freedom from bondage and racial equality for all. These principles were enshrined in Haiti’s first constitution, in 1804, decades before they were embraced by the United States.
And that was just the beginning.
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Read the rest of the article at the link.
How have we repaid the debt? By illegally deporting Haitian asylum seekers to the “kidnapping center of the world” and then disingenuously claiming that it is a “safe” country for returns!
PORT-AU-PRINCE, Haiti — Four days after the August earthquake that devastated the south of Haiti, Walkens Alexandre, a physician, was traveling to treat victims at a hospital when a motorcycle blocked his white Ford Ranger. Two men hopped off, pulled guns, commandeered his truck and hauled him to the outskirts of the capital.
He was held for three days while the kidnappers negotiated by phone with his family. He’d be set free for 30 times his monthly salary. Loved ones pleaded with relatives and friends to contribute to the ransom.
“Now I’m traumatized, fearful of people, and reminded of this every time someone slams a door, or I hear a motorcycle,” said Alexandre, 43. “We don’t feel safe in Haiti. There is always panic, always fear.”
The most troubled nation in the hemisphere is now being held hostage by a surge in kidnappings.
With victims spanning all social classes and ransoms ranging from as little as $100 to six figures, Haiti now holds the tragic title of highest per capita kidnapping rate on Earth. Recorded kidnappings so far this year have spiked sixfold over the same period last year, as criminals nab doctors on their way to work, preachers delivering sermons, entire busloads of people in transit — even police on patrol. So great is the surge that this year, Port-au-Prince is posting more kidnappings in absolute terms than vastly larger Bogotá, Mexico City and São Paulo combined, according to the consulting firm Control Risks.
[Haitian migrants thought Biden would welcome them. Now deported to Haiti, they have one mission: Leave again.]
Locals and foreigners alike are living in fear. The heads of several foreign companies told The Washington Post that the kidnapping wave led them to reassign staffers to remote work in other Caribbean countries, Europe or the United States. Other firms are leaving Haiti altogether.
“Every time you leave your door in Port-au-Prince, it’s like a game of Russian roulette,” said one European executive, who spoke on the condition of anonymity to discuss security. “You don’t know if you’ll be kidnapped that day.”
Maarten Boute, chairman of cellular phone provider Digicel Haiti, said his firm has resorted to moving staff only in armored cars with drivers trained for kidnapping scenarios. Because of the escalating risk, he said, he abandoned his Port-au-Prince home this year to move into a fortified hotel compound.
“Most people who can afford it and have visas have sent their family away, or moved outside the country,” he said. “We are using armed security, armored cars and have patrols that [scout] roads. But we still avoid certain areas, or moving around, as much as we can.”
Saddled with endemic poverty and violence, Haiti is no stranger to kidnapping waves. The country suffered a brutal surge from 2005 until the 2010 earthquake, which killed more than 220,000 people but had the effect of moderating kidnappings. Numbers have climbed steadily in recent years as violent gangs, unchecked by the government, have seized control over key portions of the country.
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Read the rest of the report at the link!
This is a “safe country” for removal? “Rounding them up and moving them out” without meaningful inquiry into individual circumstances is “American justice?” Come on, man!
Mayorkas and Garland have obviously spent far too much time at the “Miller Lite Happy Hour” 🤮☠️ and far too little time restoring the rule of law for vulnerable asylum seekers who deserve our protection!👎🏽
“Miller Lite” on Tap @ DOJ & DHS! Maybe Mayorkas & Garland have had “one too many!”
AIC: On September 30, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas issued the long-awaited new set of enforcement priorities, entitled “Guidelines for the Enforcement of Civil Immigration Laws”. The guidelines, which will go into effect on November 29, 2021, will replace the February 18 interim enforcement priorities memo issued to U.S. Immigration Customs Enforcement (ICE), as well as Initial interim guidelines issued on January 20, 2021. See also IDP Statement: DHS’s Deportation Memo Reinforces Flawed Policies of the Past.
Politico: A federal court has moved to preserve the Biden administration’s ability to use a Trump-era public health order to expel migrant families arriving at the southern border.
Reuters: The U.S. Department of Homeland Security said on Wednesday it intends to issue a new memo in the coming weeks ending the “remain in Mexico” immigration program.
Intercept: [T]he arrival of Haitians was anticipated, and much of the chaos that ensued seemed preventable with basic planning and logistics. But in the scramble to contain the media crisis, the U.S. employed tactics that set off a cascade of repression and violence on both sides of the border. By allowing the situation to reach critical levels, federal officials created conditions that made a militarized crackdown seem inevitable, making criminals out of people asserting their right to seek asylum. See also Most of the migrants in Del Rio, Tex., camp have been sent to Haiti or turned back to Mexico, DHS figures show.
Texas Tribune: Defense attorneys have started asking courts to set migrants free because local justice systems, overwhelmed by arrests under Gov. Greg Abbott’s border security push, are routinely violating state law and constitutional due process rights.
NJ Monitor: Now the coalition of faith leaders, advocates, formerly incarcerated people, and their family members have formed the Interfaith Campaign for Just Closures. The group aims to push New Jersey’s congressional delegation to support HR 536, which would revamp the immigration detention system.
NYT: The settlement will provide restitution to passengers who were detained, arrested or deported after immigration agents conducted warrantless searches on buses, Washington State’s attorney general said.
BuzzFeed: The new initiative will provide government-funded legal representation to certain children in Atlanta, Houston, Los Angeles, New York, San Diego, San Francisco, Seattle, and Portland. The Executive Office for Immigration Review, which runs the nation’s immigration courts, is also updating training for attorneys who want to handle immigration cases.
AILA: The BIA dismissed the respondent’s appeal after finding that a Notice to Appear that lacks the time and place of an initial removal hearing constitutes a “charging document.” Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021)
AILA: Where the Yemeni petitioner had been kidnapped and tortured before being convicted and sentenced to 10 years’ imprisonment for political opposition to the Houthi regime, the court concluded that the BIA erred in determining that he was ineligible for asylum. (Ghanem v. Att’y Gen., 9/22/21)
Law360: The Third Circuit refused to undo deportation orders against a Peruvian national who had a simple assault conviction, ruling that the offense amounted to a removable crime of violence.
AILA: The court held that the BIA abused its discretion by entirely failing to address the Libyan petitioner’s Convention Against Torture (CAT) claim, where the petitioner had raised his CAT claim several times in his briefing before the BIA. (Abushagif v. Garland, 9/24/21)
AILA: The court upheld BIA’s denial of asylum, finding petitioner’s proposed particular social group of “family unaffiliated with any gangs who refuse to provide any support to transnational criminal gangs in Guatemala” lacked particularity and social distinction. (Osorio Tino v. Garland, 9/20/21)
AILA: The court concluded that the BIA did not abuse its discretion in determining that the petitioner’s 2016 motion to reopen was untimely, nor did it commit legal error in declining to sua sponte reopen her case. (Cui v. Garland, 9/23/21)
AILA: Where the petitioner claimed she was persecuted because of her membership in a house church that was not registered with the Chinese government, the court held that the BIA appropriately relied on two inconsistencies in making its adverse credibility determination. (Li v. Garland, 9/21/21)
AILA: Granting the petition for review, the court held that the petitioner’s convictions in Washington for robbery in the second degree and attempted robbery in the second degree did not qualify as aggravated felony theft offenses under INA §101(a)(43)(G), (U). (Alfred v. Garland, 9/22/21)
AILA: Granting the petition for review and remanding, the court found that the BIA at least partly relied on a legally erroneous—and thus invalid—rationale for declining to exercise its sua sponte reopening authority. (Berdiev v. Garland, 9/21/21)
Law360: The D.C. Circuit on Thursday granted the Biden administration’s bid to stay a district court order that blocked the administration from expelling migrant families, providing it time to pursue an appeal of the ruling, which was slated to go into effect on Friday at midnight.
Law360: A D.C. federal judge banned U.S. Marshals in the nation’s capital from detaining criminal defendants based on suspicion related to their immigration status Thursday, ending a class action over the agency’s practice of holding individuals despite release orders.
AILA: Where USCIS had refused to adjudicate the adjustment of status application of the plaintiff, a Temporary Protected Status (TPS) recipient with advance parole, the court held that the plaintiff was an “arriving alien” who had executed his deportation order. (C-E-M- v. Wolf, et al., 9/29/21)
AILA: A federal district court in Mississippi held that plaintiffs had established unreasonable delay by USCIS in the adjudication of their adjustment of status applications, and ordered USCIS to adjudicate their applications before the end of FY2021. (Parcharne, et al. v. DHS, et al., 9/30/21)
AILA: The federal district court in D.C. ordered DOS to reserve 6,914 diversity visas (DVs) for adjudication pending final judgment for Goodluck-related plaintiffs, and to reserve 481 DVs for Goh plaintiffs to be issued by the end of FY2022. (Goh, et al. v. DOS, et al., 9/30/21)
Law260: A border-focused law enforcement initiative launched by Texas earlier this year suffered setbacks in a state court on Tuesday, with prosecutors agreeing to release dozens of immigrants being held in state custody and to completely drop charges against two of them.
Law360: The Biden administration agreed to pay $1.15 million to attorneys who successfully advocated for the safe custody of migrant children held in border detention facilities, while the attorneys continued to push for additional fees for an appeal the administration abandoned.
AILA: EOIR announced its “Access EOIR” initiative, which attempts to raise representation for individuals appearing before immigration courts. New trainings under the Model Hearing Program are available, and recent EOIR efforts include the development of the Counsel for Children Initiative.
AILA: DHS issued updated guidance on the enforcement of civil immigration law. Guidance is effective on 11/29/21 and will rescind prior civil immigration guidance.
AILA: DHS issued a statement announcing that it “intends to issue in the coming weeks a new memorandum terminating the Migrant Protection Protocols (MPP).” However, DHS is moving forward with plans to restart the program pursuant to a district court order.
AILA: SAVE announced that DHS will admit Afghans as special immigrant (SI) conditional permanent resident status and CBP will admit Afghans as non-SI parolees. The memo describes both categories, the qualifications for either, the ways their status will be documented, and more.
AILA: DHS automatically extended the validity of certain EADs with a category code of A12 or C19 issued under TPS for Syria through 3/28/22. For Form I-9, TPS Syria beneficiaries may present qualifying EADs along with an individual notice issued by USCIS that indicates extension of EAD.
I’d go even further than the article in The Intercept. The Biden Administration was told by experts during the early Transition Period to make restoring order and the rule of law to the asylum system at our borders one of their highest priorities. That included reviving and expanding the USCIS Asylum Office, reopening legal ports of entry, replacing the BIA with qualified progressive expert Appellate Judges who understood asylum law and would establish practical humane precedents, bringing in progressive, dynamic progressive asylum leadership at both the DHS and DOJ, reopening legal border ports of entry, and instituting a robust refugee programs for the Northern Triangle and the rest of the Americas.
With a 10 week “head start,” these were neither rocket science nor unachievable. Instead the Administration dawdled and fumbled, treating asylum reform as an issue that would “just go away.” Once in office, Mayorkas, Garland, and Harris aggravated the problem by not making the obvious progressive personnel and structural changes necessary to restore the asylum and refugee systems.
Now, we have the worst of all worlds! Disorder at the border, cruelty and abuse of migrants, and folks like Harold Koh, who have the expertise, backbone, and creative solutions that Mayorkas and Garland so stunningly lack fleeing the Administration and speaking out against its inane and inhumane policies.
All so stupid! All so unnecessary! All so damaging to America and humanity!
I have spent much of my legal career, inside and outside the government, seeking to ensure that the United States abides by its non-refoulement obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), and the 1967 Protocol relating to the Status of Refugees (“Refugee Protocol”), which modifies and incorporates the terms of the 1951 Convention relating to the Status of Refugees (“Refugee Convention”). Article 3 of the CAT categorically prohibits State Parties from expelling, returning, or extraditing any person, without exception, to any State where there are “substantial grounds for believing he would be in danger of being subjected to torture.” Article 33 of the Refugee Convention, subject to certain narrow exceptions, flatly prohibits State Parties from expelling or returning (‘refouler’) refugees in any manner whatsoever to “the frontiers of territories” where their life or freedom would be threatened on one of [the designated grounds].
I write first, because I believe this Administration’s current implementation of the Title 42 authority continues to violate our legal obligation not to expel or return (“refouler”) individuals who fear persecution, death, or torture, especially migrants fleeing from Haiti. Second, my concerns have only been heightened by recent tragic events in Haiti, which had led this Administration wisely to extend temporary protected status (TPS) to Haitians already in the United States. Third, lawful, more humane alternatives plainly exist, and there are approaching opportunities in the near future to substitute those alternatives in place of the current, badly flawed policy.
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First, let me assure you that the DOS’s ridiculous claim that Koh’s departure was “long planned,” and its equally ludicrous suggestion that he would continue to play a meaningful role as a fake “consultant” is pure, unadulterated BS!💩 Indeed, I’d encourage the DOS Inspector General to investigate and report on just what are Koh’s new “consulting duties,” his compensation arrangements, and exactly what he produces after today!
You don’t hire high level Administration officials with “a long planned expectation” that they will depart in fewer than nine months. Come on, man, how dumb do you think we are?
Losing someone of Koh’s reputation and abilities is a huge, yet well deserved, “black eye” for an Administration that has ditched the progressive human right experts who helped them get into the dance in the first place!
And, for what? It’s not that so-called “moderates,” fickle “independents,” and GOP nativists have been lining up to congratulate Biden, Harris, Mayorkas, and Garland on their continuation of bogus, racially charged restrictionist policies at the border. Abandoning your stated values, dissing campaign promises, pissing off your allies, while still earning slings and arrows from your opponents has to be the world’s dumbest policy!
Second, what’s also pure unadulterated BS 💩 is the Administration’s assertion, unethically defended by Garland’s DOJ, that misuse and gross abuse of Title 42 in a cowardly attempt to thwart asylum seekers of color has anything whatsoever to do with science or public health.
The truth is is stark as it is ugly:
There was no science involved, only anti-immigrant and anti-asylum animus. “That was a Stephen Miller special. He was all over that,” a former Pence aide told the AP.
Of course there wasn’t! Even Stephen Miller didn’t pretend very hard that there was.
He just counted on a complicit Supremes and enough right wing toady judges afraid to do their jobs to get away with it. He was dead wrong about District Judge Emmet G. Sullivan.
But, in the end, that didn’t make any difference. Although he probably hadn’t predicted it, Miller found a key ally in “what me worry, not my family, only some non-white asylum seekers” AG Merrick Garland.
Merrick Garland’s ancestors were saved! Why should he worry about the people of color he condemns without due process in his dysfunctional and biased Immigration “Courts” and by defending Stephen Miller’s neo-Nazi anti-asylum, White Nationalist border policies? PHOTO: Wikipedia Commons
Garland inexplicably and despicably took up Miller’s unethical, illegal, and immoral cause and found some bad judges on the DC Circuit willing to help trash Black Haitians and other migrants of color. This was certainly not one of American law’s better episodes, as history will eventually document.
There is no sugar coating it! When it comes to treatment of asylum seekers of color at our Southern Border, the Biden Administration is carrying out the “Miller Lite” version of neo-Nazi Stephen Miller’s deadly White Nationalism. Shame!🤮 We’re no closer to a coherent, practical, moral, legal asylum policy at our Southern Border today than we were on Jan. 20!
As Koh points out, there have been better alternatives on asylum seekers and the border since day one of the Administration! They have just refused to take them!
Also, a complicit AG Garland who has consistently failed to stand up for the human and legal rights of migrants of color and to“just say no” to Stephen Miller’s illegal policies and contrived, clearly pretextual justifications, has been a major cause of this ongoing political, moral, legal, and humanitarian disaster.
“I believe when I go to do this work, I need to integrate myself into the lives of the people I’m covering,” he says. “I don’t want them to see me as above them. We’re on the same level; we’re human.”
That context is needed to understand why Dennison entered the Darién Gap several weeks ago and why, unlike other photographers and videographers, he didn’t take any security guards with him.
That decision would end up giving him a different experience from that of others who have gone there to document the harrowing passage. They have left that jungle and come home with photos that show the horrific struggles of others. He almost didn’t leave the jungle, and he came home with only a fraction of the photos he took and with his own horrific story.
“What he’s been through is horrible and really disturbing,” says Erika Pinheiro, a lawyer who is the litigation and policy director of Al Otro Lado, an advocacy and legal aid organization that serves migrants, refugees and deportees on both sides of the U.S.-Mexico border. The organization has been working with Dennison to create a film that captures the experiences of U.S.-bound Black migrants.
“The only way to understand it is to see it, and that’s what he’s providing,” Pinheiro says. “It’s really important that people understand what’s happening, and that it’s not over in Del Rio.”
The Biden administration recently cleared out a border camp in Del Rio, Tex., where an estimated 15,000 migrants, most of them Haitian nationals seeking asylum, had gathered. The clearing out of the camp came after viral images and video footage showed Border Patrol agents on horseback grabbing migrants and charging at them. In one video, a young girl in a mint-green dress scrambles to get out of the way of a horse heading toward her.
President Biden decried the agents’ actions, and the Department of Homeland Security opened an investigation into the incident.
But what happened in Del Rio captures only part of what many Haitians experience to get to the United States. Many pass through the Darién Gap, some with children in tow and infants strapped to their backs or chests. Officials in Panama have said that a record 70,000 people traveled the 66 miles through the terrain this year.
Before going, Dennison did extensive research on what to expect: spiders with bites that can cause death within six hours, criminals who routinely rob travelers, and polluted water that if not filtered can sicken you. But nothing, he says, could have prepared him for what he experienced.
“When you’re in the jungle, you’re no longer a filmmaker,” he says. “You’re no longer a humanitarian. It becomes about survival.”
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Read the full story at the link.
Sad as truth is, it’s not rocket science:
Desperate people do (and will continue to do) desperate things;
For forced migrants, the dangers of staying will always exceed those of leaving;
“Die in place” isn’t a “policy;”
“Deterrence only” can’t work in the long run;
While institutionalized racism has a long history in U.S. immigration policy, it’s never been a good policy for America, nor will it ever be!
Honestly, where does the Biden Administration get these folks who don’t “get the obvious,” lie about it, and then expect good results?
Right now, after nearly eight months, the Biden Administration still appearsto be in no better position to process the next border influx than they were on January 20, despite numerous warnings and eight months of graphic practical and humanitarian failures. Racially charged rhetoric and more cruel, wasteful, dishonest enforcement and removals won’t do it!
We need reopened legal border ports of entry staffed with more and better Asylum Officers overseen by a pragmatic progressive corps of expert Immigration Judges and a BIA composed of progressive asylum experts with the guts to knock heads and get our broken border legal system back to functionality. To state the obvious, that would promote consistency, transparency, and take some of the pressure off of the Article III Courts!
Because neither Mayorkas nor Garland is committed to taking the bold actions necessary to change the dynamics at the border, America, the Biden Administration, and vulnerable legal asylum seekers appear headed for another four years of avoidable failure with all of its unhappy human and political consequences!
So far, defending this guy and his cruel policies is about the only thing that Judge Garland has done well at a DOJ that continues to treat “justice” for migrants of color as a joke! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.comUnlike Miller, the “losers” under Garland’s unconscionable policies often aren’t in a position to complain — at least in this world! EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
On Thursday, a federal appeals court allowed the continued use of the Title 42 policy, pushed initially through the previous administration by Stephen Miller, that’s used the novel coronavirus pandemic as an excuse to quickly deport asylum-seekers, including thousands of Haitians who have arrived at the southern border in search of help.
The Biden administration was set to be blocked from using the policy against families, following a federal judge’s order earlier this month. That lower court order was set to go into effect Thursday. But the policy was saved by the Biden administration, which had shockingly appealed the lower court’s decision. To be clear, the administration could have let the lower court decision stand. But it decided to protect this scientifically unsound order for continued use.
“It’s troubling to see the court grant the government’s motion to reinstate Title 42 just days after the district court ruled that its policy violates U.S. law,” Oxfam America global policy lead Noah Gottschalk told NBC News. The group is among the organizations that have led lawsuits against the policy. “We all saw the horrific images of the abuse faced by Haitian asylum-seekers subjected to Title 42, and we cannot allow people to face further harm because of this xenophobic policy.”
Department of Homeland Security Sec. Alejandro Mayorkas has claimed it is continuing Title 42 “out of a public health need.” Meanwhile, White House Press Sec. Jen Psaki has defended the policy as “a public health requirement.” That’s complete bullshit. “Vice President Mike Pence in March directed the nation’s top disease control agency to use its emergency powers to effectively seal the U.S. borders, overruling the agency’s scientists who said there was no evidence the action would slow the coronavirus,” The Associated Press (AP) reported last October.
The previous administration got its way by twisting arms. There was no science involved, only anti-immigrant and anti-asylum animus. “That was a Stephen Miller special. He was all over that,” a former Pence aide told the AP.
And, as vaccines have become readily available, the supposed rationale to keep Title 42 in place has only gotten more flimsy. If this is truly all about public health, why not rescind the policy and offer families the single-shot Johnson & Johnson vaccine? “Let me also remind the Biden administration that over 300,000 people cross the border from Mexico every day through ports of entry,” American Immigration Council Policy Counsel Aaron Reichlin-Melnick tweeted in July. “None are given COVID tests, unlike migrants who all get tested and nearly all get vaccinated.”
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“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color — Progressive human rights experts and migrants of color haven’t been welcome at Garland’s DOJ “Happy Hours” where Stephen Miller’s policies, his judicial appointments, and his dysfunctional “star chamber” immigration courts are celebrated, defended, and even “enhanced!”
Read more about this legal, moral, and political travesty perpetrated by the Biden Administration with Garland’s support at the link.
When it comes to things like defending ending the reprehensible “killer-program” known as “Remain in Mexico” or protecting the DACA program, Garland’s litigation team has fared poorly.
They also have drawn raised eyebrows, even if not yet any ethical complaints, from Article III Judges for their questionable representations and disingenuous defense of wrongfully issued BIA final orders of removal.
Perhaps, part the problem is that after four years of “anything goes” often misleading, sometimes downright dishonest, defense of the Trump/Miller White Nationalist xenophobic, often misogynistic, dehumanizing agenda, their hearts aren’t in it. The other glaring problem is the obvious lack of commitment to progressive humanitarian values, due process for all, and “cleaning house” at a broken and dysfunctional DOJ that has been shown by Garland.
Obviously, Garland’s DOJ lawyers are more at home and more successful when when arguing for intellectually dishonest and unconstitutional dehumanization (or “Dred Scottification”) of “the other,” primarily individuals of color who are the most vulnerable among us.
What a totally disgraceful legacy for a guy that was once just “one Moscow Mitch” away from the Supremes! On the other hand, it now appears that the GOP right wingers wouldn’t have had much to fear from a guy who won’t stand up for liberal American democratic values or even simple human decency! I doubt that he would have presented much threat to the far-right, anti-American agenda!
The Slippery Slope of Systemic Racism in Immigration Law – Del Rio by Carrie Rosenbaum
When Senator Maxine Waters proclaimed that what we witnessed in Del Rio, Texas last week, Customs and Border Protection officers on horseback whipping black men, harkened back to slavery, she drew an age-old, but still relevant connection between slavery, Jim Crow, and anti-immigrant racism. In a press briefing, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas stated, “[w]e know that those images painfully conjured up the worst elements of our nation’s ongoing battle against systemic racism.” Yet, if both are right, where are our equality, anti-racism principles and why haven’t they been enough to dismantle systemic racism? Should U.S. anti-discrimination law inhibit anti-black and anti-immigrant racism, in the U.S. and at the border? Does it? Is there a slippery slope, such that undeterred discrimination against immigrants at the border seeps beyond the immediate individuals at the border?
Senator Waters was right to blur the boundaries of citizenship and rights in her speech. Racism begets racism, and racism towards black Haitians at the border translates to anti-black racism within the United States, just as anti-Mexican racism does not confine itself to noncitizens, and never has. Examples abound including obvious examples, like Latinx lynching of the late 1840s through 1920s (which coincided with lynching of Blacks), mass expulsion or “repatriation” of persons of Mexican descent that included U.S. citizens in the early 1920s and 1930s again via “Operation Wetback” in the 1950s and more subtle ones like exploitation and expropriation of Mexican and Central American farm workers and laborers, whether authorized or not, and colorblind or race neutral policies that fall most heavily, even if not completely, on persons from Mexico and Central America, like border jails.
While the Equal Protection clause of the U.S. constitution does not limit itself to citizens, it falls vastly short in protecting racialized people of color, especially immigrants. The U.S. treatment of Haitians in Del Rio implicates the problem of anti-black and anti-immigrant racism, and is indicative of the express and implicit bias that continues to evade remedy. It runs much deeper than the disturbing images of CBP agents on horseback, and its impacts have ripple effects.
At the same time that DHS Secretary Mayorkas decried systemic racism, he spelled out the government’s potential argument that the exclusion of Haitians, and Central Americans, and Mexicans that accompanies such brutal treatment was not discriminatory pursuant to the current state of immigration equal protection. He stated, “if we are able to expel them under Title 42 … we will do so” and announced that its application was “irrespective of the country of origin, irrespective of the race of the individual, irrespective of other criteria that don’t belong in our adjudicative process and we do not permit in our adjudicative process.”
Yet this is precisely how systemic racism flourishes. The reality is, this provision has been used to exclude the same racialized immigrants who have been subject to the worst treatment under immigration law. However, because the law is colorblind, Mayorkas can suggest that there was no discrimination. Pursuant to the Supreme Court’s 1977 Arlington Heights decision, discriminatory impact has to be accompanied by proof of discriminatory intent. Just by saying that wasn’t his (or implying it was not Congress’) intent, he can erase what too many know to be real. A new immigration priorities memo by the Agency released today stated that ““We must ensure that enforcement actions are not discriminatory and do not lead to inequitable outcomes.” It is a step in the right rhetorical direction, but does little to meaningfully address the colorblind racism that plagues enforcement.
What is the solution? Aside from a more expansive interpretation of the Equal Protection doctrine in line with Justice Sotomayor’s dissent in the Trump era Deferred Action for Childhood Arrivals case, and modest progress at the district court level in the crimmigration context, Congress could take steps to stop racial harm inflicted via immigration law and policy. By creating a path to legal status for those who not only have been here, but who have suffered the greatest harms of systemic racism, Haitian immigrants, Mexican immigrants, and others, Congress could start to undo the damage. It could also stop the relatively new practice of detaining or imprisoning migrants at the southern border, who happen to be almost entirely from Mexico and Central America, or abolish immigration prisons entirely. The policies that result in the imprisonment of Mexicans and Central Americans at the southern border now started with expulsion and imprisonment of Haitians in the 1980 and 1990s. Instead of expulsions and rumored potential imprisonment at the notorious Guantanamo Bay as was done in response to Haitians fleeing violence after the U.S. supported overthrow of democratically elected president, Jean-Bertrand Aristide, the U.S. could re-evaluate both its involvement in foreign affairs, and treatment of those who flee here after our interventions cause disruption and civil strife. The largest number of Black migrants come from Haiti and their mistreatment is rooted in anti-Black racism. Racializing anti-immigrant demonization does not confine itself to noncitizens, nor should the remedies. Immigration reform, and a more robust application of the Equal Protection doctrine to all those inside the country, and at our borders, is necessary to move towards meaningfully dismantling systemic racism.
Access my law review articles and scholarship on SSRN
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Very eloquently said, Carrie!
Compare this with the racist blather and White Nationalist nonsense of nativist pols like Abbott, DeSantis, Cruz, Cotton, and others who glorify Jim Crow and seek to force a sanitized, whitewashed version of American history down the throats of the public!
Also, compare this with the intellectually dishonest actions by Biden Administration officials. They disingenuously claim to be champions of racial equality and racial justice.
But, in reality, they operate “star chamber courts,” “New American Gulags,” and implement discredited, outmoded, and ineffective “Stephen Miller Lite” border enforcement policies that basically dehumanize people of color and deny them the due process and equal protection to which they are entitled under law. Also, think about the many Federal Judges who spinelessly enable that which most first year law students could tell you is illegal and unconstitutional, not to mention totally immoral!
What exactly does Assistant AG for Civil Rights Kristen Clarke do every day at the Civil Rights Division if unraveling the White Nationalist, racially tone deaf policies of her own Department, the DHS, and the “star chambers for people of color” being operated by her “boss” aren’t first and foremost on her “to do” list?
“Floaters” — The ugly reality of Biden’s “Miller Lite border strategy.” It’s mostly people of color floating face-down in the river, being illegally returned to danger zones, rotting in the “New American Gulag,” and being railroaded through Garland’s biased and dysfunctional “star chamber courts.” Right now, Garland and and the rest of of the Biden Administration have “zero (0) credibility” on racial justice and voting rights!
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
The biggest failure of the Biden Administration to date is their willful blindness to the obvious connection between lack of overall racial justice in America and running star chambers, gulags, and border enforcement policies that are unconstitutional, dehumanizing, and racially demeaning to individuals of color. Sadly, and tragically we seem to have gone from “zero tolerance” under Trump to “zero credibility” under Biden! “When will we ever learn, when will we ever learn?”
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
ALERTS
EOIR Courts & Appeals Systems (ECAS) Locations: Electronic filing went live on 9/23/2021 at NYC-Broadway and will be available at NYC-Varick on 9/30/2021 (remember that electronic filing is not available for cases that commenced before those dates). No date has been announced for NYC-Federal Plaza, although EOIR has previously indicated all courts should have ECAS by 2022.
Reviewing ROPs: There have been reports of attorneys successfully scheduling appointments to review the record of proceeding at Varick and 290 Broadway. The clerk answering the main phone line at 26 Federal Plaza indicated she was unaware of any policy allowing in-person review of ROPs at this time but stated people could try making a request.
ABC: The proposed regulation attempts to satisfy concerns of a federal judge in Houston who ruled in July that the Deferred Action for Childhood Arrivals program was illegal. It takes on heightened importance as prospects for legislation have dimmed.
WGBH: The Office of the Principal Legal Advisor sends its prosecutors to litigate deportation cases before the Executive Office for immigration Review, the body that oversees the nation’s immigration courts. Doyle has been an outspoken critic of the agency and has led many lawsuits against it.
EOIR: Most recently, Mr. Neal was a consultant specializing in immigration policy and practice. Previously, he held positions at EOIR over two decades. From 2009 to 2019, he served as Chairman of the BIA at EOIR, where he was chief judge of the appeals board and managed judicial and administrative operations.
NPR: As the Biden administration scrambles to relocate thousands of Haitian migrants camped in a small Texas border town, it’s also looking for a private contractor to help operate a migrant detention facility at the U.S. Naval base at Guantanamo Bay, Cuba — and to hire at least some guards who speak Spanish and Haitian Creole.
NYT: Mr. Biden’s decision is unlikely to affect two groups of people most recently in the news: tens of thousands of people from Kabul fleeing the Taliban takeover in Afghanistan and more than 15,000 Haitians in a sprawling, makeshift camp under a bridge at the southern border.
Politico: The inspector general also found that a Customs and Border Protection official asked the Mexican government in December 2018 to block 14 U.S. citizens from entering Mexico as the caravan approached the U.S. border even though it had “no genuine basis” to do so.
NYT: Among the many cruelties of our immigration system is this: Transnational adoptees, whose stories begin with a rupture from their birth families and home countries, have often found themselves deprived of U.S. citizenship and at risk of deportation.
AP: Newsom on Friday signed a law that removes the word from various sections of the California state code. California passed laws in 2015 and 2016 that removed the word from the state’s labor and education code.
AP: But contrary to expectations, nearly all 92,000 people approved for aid so far have qualified for the maximum $15,600 available under the program, the state’s website showed Thursday afternoon. Roughly 223,500 claims have been submitted overall, with a rush coming in recent days.
BIA: A Notice to Appear that does not specify the time and place of a respondent’s initial removal hearing does not deprive the Immigration Judge of jurisdiction over the respondent’s removal proceedings.
LexisNexis: Spring, Texas attorney Veronica Semino scored this unpublished BIA remand for her client, who is still detained in Oakdale. In the single-member decision dated Aug. 5, 2021 , Temporary Appellate Immigration Judge Gabriel Gonzalez wrote: “[W]e agree with the respondent that the harm he suffered in Jamaica rises to the level of persecution.
Law360: The Third Circuit Wednesday vacated a Board of Immigration Appeals’ decision that denied a Yemeni man’s request for protection from deportation, saying the board ignored “overwhelming evidence” that the man had been persecuted and could be tortured for his political beliefs.
LexisNexis: Abushagif v. Garland “Abushagif contends that the BIA abused its discretion by entirely failing to address his CAT claim. On that point, he is correct. A CAT “claim is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention.” Efe v. Ashcroft, 293 F.3d 899, 906–07 (5th Cir. 2002). Moreover, the BIA must not leave asserted CAT claims unaddressed.
AILA: The court held that the BIA erred by failing to require DHS to make a good faith effort to present for petitioner’s cross-examination the author or declarant of a probation report upon which it relied to make its particularly serious crime determination. (Alcaraz-Enriquez v. Garland, 9/16/21)
AILA: The court held that because the petitioner’s prior removal order was reinstated, he had no right under the INA to seek asylum and no constitutional right to have DHS consider whether, as a discretionary matter, to decline to reinstate that order. (Iraheta-Martinez v. Garland, 9/7/21)
Law360: The Ninth Circuit denied a Chinese national’s bid for asylum over religious persecution, finding that she failed to disclose her 2013 arrest by U.S. authorities and could not offer a plausible explanation for her omission.
Law360: Two immigration courts improperly dismissed evidence supporting a Chinese woman’s claims that government officials forced her to undergo an abortion in her home country, according to the Ninth Circuit, which revived her family’s asylum case.
Law360: A D.C. federal judge approved a plan requiring U.S. Immigrations and Customs Enforcement to attempt to place migrant teens who turn 18 in government custody in less-restrictive housing options than adult detention facilities, stipulating changes to documentation and officer training.
Law360: A Florida federal judge on Tuesday struck down key portions of a 2019 state law banning “sanctuary” immigration policies as unconstitutional, finding a South Florida city and immigration advocates proved discriminatory intent and violations of equal protection rights at a bench trial in January.
LexisNexis: Derek Brouwer, Vermont Seven Days, Sept. 24, 2021 “Border patrol officers can search Vermonters’ cars without a warrant under their special federal authority to conduct “roving” patrols within 100 miles of the U.S. border. But, as of Friday, evidence they collect during the controversial searches can no longer be used to prosecute crimes in state courts, a narrow majority of the Vermont Supreme Court.
Law360: A class of asylum-seekers has asked a California federal judge to oversee the U.S. Department of Homeland Security’s compliance with two orders directing authorities to process some asylum claims, saying the federal government’s foot-dragging has proven the need for court oversight.
Law360: Texas and Missouri have blasted the Biden administration’s delays in complying with a court order to restart a Trump-era program requiring asylum-seekers to wait in Mexico, saying the government need not hash out an agreement with Mexico before reinstating the policy.
Law360: The American Civil Liberties Union urged the D.C. Circuit to maintain a lower court ruling that blocked a Trump-era asylum bar, saying that though the regulation is now moot, vacating the injunction would create “perverse incentives” for the government.
AILA: USCIS announced that, in response to the ongoing COVID pandemic, it extended the flexibilities for responding to certain agency requests. This flexibility applies if the issuance date listed on the request, notice, or decision is between March 1, 2020, and January 15, 2022, inclusive.
AILA: DOJ announced that non-U.S. citizens can request new or replacement Social Security cards using USCIS Forms I-765 or I-485, instead of visiting a local Social Security Administration office. Cards should be received within two weeks after receiving Employment Authorization Documents.
AILA: ICE provided updated statistics on COVID-19 in ICE detainees, by facility. As of 9/23/21, there are 526 positive cases currently in custody among a total detainee population of 22,442.
AILA: On 9/17/21, President Biden signed an executive order imposing sanctions on persons determined to be responsible for humanitarian and human rights violations in Ethiopia, including suspending the immigrant and nonimmigrant entry into the United States of such persons. (86 FR 52389, 9/21/21)
AILA: DOS provided the President’s Report to Congress on the proposed Presidential Determination on Refugee Admissions for FY2022. The report recommends an increase in the refugee admissions target from 62,500 in FY2021 to 125,000 in FY2022, prioritizes admissions, states ORR goals, and more.
“After 16 years of inexcusable delays, I am proud that EOIR’s dedicated work over the past year has culminated in the piloting of a comprehensive electronic filing and case management system,” said [then] EOIR Director James McHenry. “With this important initiative, EOIR joins other court systems in the U.S. that have long provided such capabilities. ECAS will aid the parties and assist judges in hearing cases expeditiously and fairly, and will further augment EOIR’s efforts in tackling the pending case backlog.”
. . . . The program will extend to all remaining immigration courts in 2019.
Las Vegas is giving 50-1 odds that this won’tbe in full operation by the end of 2022. Anyone want to bet on “America’s Clown Courts” 🤡 to beat the odds and deliver?
Meet the New Chief of E-Filing @ EOIR (Looks alot like predecessors). Reportedly, he has a “nose” for the business! PHOTO: Wikimedia Commons
There are enormous downsides to border disorder, to immigration policy paralysis and to leaving the fates of more than 11 million current immigrants without any path to a secure future — even beyond the reinforcement it provides to the United States’ growing international reputation for dysfunction. No one gains by the chaos except smugglers who soak desperate migrants financially on their way north in hopes of a better life. The losers include not only the “dreamers” brought to this country as children, who must live in perpetual anxiety, but also the country as a whole, which loses the value of immigrants, skilled and otherwise, who would turbocharge entrepreneurship, create jobs and help the economy grow.
There are available solutions if Congress could overcome its horror of bipartisan compromise. The goal should be to establish a realistic annual quota of immigrant visas for Central Americans, Haitians and others desperate to reach this country who otherwise will cross the border illegally — a number that recognizes the U.S. labor market’s demand for such employees. That must be supplemented by a muscular guest worker program that enables legal border crossing for migrants who want to support families remaining in their home countries.
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Read the complete editorial at the link.
It’s worth adding that the current “border disorder” is largely the result of White Nationalist, legally defective, anti-immigrant policies of the Trump regime compounded by the failure of Mayorkas and Garland to take the obvious, available, common sense steps necessary to reopen legal border ports of entry, to make the long overdue necessary reforms to establish a fair, efficient, and generous legal asylum system at the USCIS Asylum Offices and the Immigration Courts, and to insist on the creation of a robust, functional refugee program for Latin America and the Caribbean.
None of the this is “rocket science!” 🚀 Plenty of great blueprints for administrative reforms and the potential expert leadership to implement them were “out there for the taking” at the beginning of the Biden Administration. By dawdling, tapping the wrong leaders, and continuing enforcement policies and bad judicial practices that were proven failures, the Administration predictably put itself “behind the eight-ball” in establishing order and implementing the rule of law at our borders!
Until the Biden Administration ends its disgraceful, cowardly, illegal, cruel, ineffective, and inhumane reliance on bogus “Title 42” restrictions to suspend orderly legal processing at the border, they will continue to bobble the next predictable “border crisis.” The GOP will continue to spout nativist nonsense. Desperate people will continue to do desperate things. Only a tone-deaf Administration would continue to ignore this reality!
“Abushagif contends that the BIA abused its discretion by entirely failing to address his CAT claim. On that point, he is correct. A CAT “claim is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention.” Efe v. Ashcroft, 293 F.3d 899, 906–07 (5th Cir. 2002). Moreover, the BIA must not leave asserted CAT claims unaddressed. See Eduard v. Ashcroft, 379 F.3d 182, 196 (5th Cir. 2004). The government does not dispute that Abushagif raised a CAT claim in his motion to reopen. The government avers, however, that Abushagif did not present his claim to the Board and thus failed to exhaust it. See 8 U.S.C. § 1252(d)(1). That is flatly incorrect; Abushagif raised his CAT claim several times in his briefing before the BIA. It is confounding that the government says otherwise. The government also contends that remanding the CAT claim would be “futile” because, even if the BIA had addressed it, the Board still would not have granted his motion to reopen, given its determination that Abushagif had generally failed to submit reliable evidence in support of his claims of persecution. That contention, however, cannot overcome the plain command of our caselaw: The Board must address CAT claims where they are raised. See Eduard, 379 F.3d at 196. We therefore remand for the limited purpose of the Board’s addressing Abushagif’s CAT claim.”
The government does not dispute that Abushagif raised a CAT claim in his motion to reopen. The government avers, however, that Abushagif did not present his claim to the Board and thus failed to exhaust it. See 8 U.S.C. § 1252(d)(1). That is flatly incorrect; Abushagif raised his CAT claim several times in his briefing before the BIA. It is confounding that the government says otherwise.
“Confounding,” but not surprising to any of us who follow the continuing meltdown of justice and callous indifference to the law, truth, and human lives @ Garland’s failed and failing Department of “Justice.”
The government also contends that remanding the CAT claim would be “futile” because, even if the BIA had addressed it, the Board still would not have granted his motion to reopen, given its determination that Abushagif had generally failed to submit reliable evidence in support of his claims of persecution. That contention, however, cannot overcome the plain command of our caselaw: The Board must address CAT claims where they are raised.
Basically, OIL, argues that even if they had actually addressed CAT, the BIA would still have stiffed the respondent’s claim because that’s what a “programmed to deny for any reason” BIA does. Why bother with a BIA decision when a denial is “predetermined?” Is this really the sad state of due process at Garland’s DOJ? Apparently!
Let’s put this in context. The respondent is from Libya, a country notorious for torture. Here’s an excerpt from the latest (2020) Department of State Country Report on Libya:
While the 2011 Constitutional Declaration and postrevolutionary legislation prohibit such practices, credible sources indicated personnel operating both government and extralegal prisons and detention centers tortured detainees (see section 1.g.). While judicial police controlled some facilities, the GNA continued to rely on armed groups to manage prisons and detention facilities. Furthermore, armed groups, not police, initiated arrests in many instances. An unknown number of individuals were held without judicial authorization in other facilities nominally controlled by the Ministry of Interior, Ministry of Defense, or in extralegal
Country Reports on Human Rights Practices for 2020
United States Department of State • Bureau of Democracy, Human Rights and Labor
LIBYA 7
facilities controlled by GNA-affiliated armed groups, LNA-affiliated armed groups, and other nonstate actors. Treatment varied from facility to facility and typically was worst at the time of arrest. There were reports of cruel and degrading treatment in government and extralegal facilities, including beatings, administration of electric shocks, burns, and rape. In many instances this torture was reportedly initiated to extort payments from detainees’ families.
Also, the 5th Circuit is generally considered the most conservative and pro-Government Circuit. It is a jurisdiction where the Government has to work hard and really, really screw up to lose an immigration case.
Two of the panel judges in this case are GOP appointees: Judges Engelhardt (Trump), and Smith (Reagan). The third panel member, Judge Higginson is an Obama appointee. Judge Jerry E. Smith, who wrote this opinion, is known as one of the most conservative Federal Judges in America! If these jurists see problems, you can be sure they actually exist!
One thing that unites Federal Judges across the ideological spectrum is dislike of being lied to by DOJ attorneys! Evidently, that’s no longer of concern to Judge Garland now that he is the purveyor, rather than the recipient, of misrepresentations, untruths, and sloppy, unprofessional work from DOJ attorneys!
How travesties like this, that happen at Garland’s DOJ on a daily basis, in “life or death” cases, is acceptable professional judicial performance is beyond understanding!
Additionally, how clearly misrepresenting the facts of record is ethically acceptable performance for OIL attorneys is totally beyond me!
Maybe its time for the House and Senate Judiciary Committees to call Judge Garland before them for oversight to examine his continuing mismanagement of EOIR, America’s worst, most backlogged, most blatantly unfair, court system, that has not materially improved during his tenure. They should also inquire as to why he continues to tolerate unethical performance from OIL Attorneys making material misrepresentations to Federal Courts in attempting to defend the indefensible performance of the BIA in immigration litigation. Also, why hasn’t Garland spoken out about the illegal suspension of asylum laws enacted by Congress at our borders? Human lives are at stake here!
The idea that Garland intends to “fix” this problem by throwing 200 new Immigration Judges into this broken, dysfunctional system, without first addressing any of the structural, management, competence, personnel, and institutional bias issues at EOIR is beyond absurd! “Management 101” says you fix the system by rooting out and replacing incompetent and unqualified judges, replacing incompetent managers with competent ones, and fixing the many broken operational pieces of the Immigration Court System before expanding it.
This means, at a minimum, slashing the backlog by getting hundreds of thousands of old, non-priority cases off the docket now, stopping endemic “Aimless Docket Reshuffling” at EOIR, installing a functional e-filing system, getting competent representation into the Immigration Courts, replacing the current institutionalized “worst practices” with “best practices,” and instituting real judicial training by experts from outside EOIR.
Only then, after the system has been made functional, should it be expanded, if needed. Otherwise, it’s like trying to fix defective automobile production by hiring more workers and speeding up the assembly line, thereby producing more defective vehicles without fixing that which caused the defects in the first place.
This case also shows the critical, life-saving role of pro bono counsel in Immigration Court. Without the heroic efforts ofpro bono publico counsel Alison Caditz and Jeri Leigh Miller, Mr. Abushagif would probably be hanging from a ceiling fan in Libya right now!
Garland indifferent to wrong torture decisions from BIA? Photo by David R. Badger, Creative Commons
I was pleased to see that Judge Smith cited my precedent opinion in Matter of L-O-G-, 21 I&B Dec. 413 (BIA 1996) in his opinion. See FN 1. In L-O-G-, we held that “we have been willing to reopen ‘where the new facts alleged, when coupled with the facts already of record, satisfy us that it would be worthwhile to develop the issues further at a plenary hearing on reopening.’” 21 I&N Dec. at 419 (citations omitted).
Yes, folks, there was a time long ago and far away when BIA Chairs actually functioned as appellate judges: participating in cases at both the panel and en banc level, writing decisions, and, where necessary, filing dissents, without regard to “career enhancement.” That was in addition to BIA management duties, being a senior member of EOIR’s executive team, andmany public speaking, writing, and other public information and educational functions.
While today’s BIA and many Immigration Judges routinely ignore Matter of L-O-G- and its important teaching, it remains “good law,” as found by Judge Smith. Practitioners should be citing it in every motion to reopen and insisting that EOIR start following its own precedents, even where they produce results inconsistent with the restrictionist positions urged by DHS or the “round ‘em up and move ‘em out attitudes” that still seem prevalent at Garland’s DOJ.
It’s rather ironic that Federalist Society hero Judge Jerry E. Smith understands me better than Garland’s BIA!
Garland seems uninterested in making the long overdue bold progressive reforms necessary to restore due process, consistency, humanity, and racial justice to our broken and dysfunctional Immigration Courts. That means the battle over the next four years is likely to shift to the Article III Courts and Congress to finally get this utterly disgraceful, yet fixable, system back on track! This is also what’s required to save at least some of the vulnerable human lives now being “chewed up and spit out” by Garland’s ☠️ “Deadly Clown Courts” 🤡 and their ethics-challenged OIL defenders!🤮
Attorney General Merrick B. Garland Announces Appointment of David Neal as Director of the Executive Office for Immigration Review
WASHINGTON – Attorney General Merrick B. Garland today announced the appointment of David L. Neal as the Director of the Executive Office for Immigration Review (EOIR) at the Department of Justice.
“The Justice Department’s commitment to a fair and efficient immigration court system, governed by due process and the rule of law, is exemplified by recent policy changes and our pursuit of significant additional resources,” said Attorney General Garland. “David Neal brings invaluable experience that will help further EOIR’s mission.”
The EOIR director is responsible for the supervision of the Chairman of the Board of Immigration Appeals (BIA), the Chief Immigration Judge, the Chief Administrative Hearing Officer and all agency personnel. EOIR has more than 2,300 employees in its 69 immigration courts nationwide, at the BIA and at EOIR headquarters in Falls Church, Virginia. As provided in the President’s Budget Request for FY 22, EOIR anticipates increasing its immigration judge corps from 535 today to 734 by the end of the next fiscal year.
Most recently, Mr. Neal was a consultant specializing in immigration policy and practice. Previously, he held positions at EOIR over two decades. From 2009 to 2019, he served as Chairman of the BIA at EOIR, where he was chief judge of the appeals board and managed judicial and administrative operations. Mr. Neal served in multiple other capacities at EOIR, including as Vice Chairman of the BIA, Chief Immigration Judge, Assistant Chief Immigration Judge, Immigration Judge and Assistant to the Director.
Prior to his tenure with EOIR, Mr. Neal served in the U.S. Senate Judiciary Committee as chief counsel of the Subcommittee on Immigration. Mr. Neal began his legal career as the Director of Policy Analysis at the American Immigration Lawyers Association and also worked for a law firm in Los Angeles, representing immigration cases before the former Immigration and Naturalization Service, the State Department, the Department of Labor and EOIR.
Mr. Neal received his Bachelor of Arts from Wabash College in Crawfordsville, Indiana, Master of Divinity from Harvard University’s School of Divinity and his Juris Doctor from Columbia Law School. Mr. Neal is a member of the District of Columbia and New York bars.
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David thus becomes the first EOIR Director to have served as both BIA Chair and Chief Immigration Judge, as well as briefly as an Immigration Judge.
Congratulations and good luck to David in his new position! It’s going to take a monumental effort, extraordinary management ability, creativity, and lots courage and determined due-process-best-practices-oriented leadership to straighten out the godawful legal, professional, and administrative mess in America’s most unfair and dysfunctional court system, now running a largely self-created 1.4 million case backlog.
Will he be able to hold off the politicos at DOJ and finally put an end to the DOJ-generated “Aimless Docket Reshuffling” (“ADR”) that has been the major cause of the 1.4 million case backlog at EOIR that has gown up over the last two decades of mismanagement at DOJ and EOIR? Will he be able to end the reprehensible officially-sanctioned “victim shaming” and cowardly “blame shifting” that has been heaped by the DOJ and EOIR on those suffering from its defective administrative practices over the past two decades?
If, as Garland claims, 200 new Immigration Judge positions will be added by the end of FY 2022, will David be able to institute merit-based Immigration Judge hiring that 1) involves public input from those who actually practice before the Immigration Courts, e.g., the private bar; 2) gives appropriate credit to “practical scholars” in immigration, human rights, and civil rights with clearly-established records of independent thinking and unswerving commitment to due process for individuals; 3) appropriately honors and weighs experience gained actually representing individuals, particularly asylum seekers, in Immigration Court, and 4) removes demeaning “production quotas,” limitations on docket management, and unnecessary restrictions on public scholarship, writing, and teaching which have made the job intentionally unattractive to many of the “best and brightest” progressive candidates from the private immigration and human rights sector. Will he actually go out and actively recruit a broader, more diverse, and more representative candidate base for IJ hiring, rather than using “insider procedures” that don’t reach or encourage many of the best candidates for these important jobs?
HINT: More “gimmicks,” like “dedicated dockets,” continued “Mickey Mouse” 🐭 uber enforcement “production quotas,” and appointments of judges who have never represented an individual in Immigration Court won’t do the trick! That is being proved every single day, beyond any reasonable doubt!
Nor will being at war with the National Association of Immigration Judges (“NAIJ”) and their leadership further due process. NAIJ leaders are the only ones at EOIR who have been providing meaningful professional training over the past four years of darkness and ignorance at EOIR.
They, along with the Private/NGO/Clinical Bar and OPLA Assistant Chief Counsel have the best and most practical ideas on how to fix EOIR! David would be wise to give them all “seats at his table,” and listen carefully to their views, rather than attempting to “lock them in a dark cellar,” as was the practice of the Trump immigration kakistocracy that effectively destroyed EOIR!
Since “built to fail” enforcement-generated non-solutions are the things EOIR appears “wedded to,” David is going to have to persuade Garland and his lieutenants to radically change course. Can he get them to treat Immigration Courts as “real courts,” controlling the lives of “real human beings,” folks like you and me, in dire need of real judicial administration and real progressive expert judges, to get out of EOIR’s current “death spiral.”☠️ Or, will we see a continuation of “Dred Scottification” of women and people of color, along with substandard trial judging, defective appellate review, and lousy biased precedents that end up creating more problems than they solve? 🤮 Only time will tell!
Hon. Andrea Saenz Appellate Immigration Judge, BIA PHOTO: immigrantarc.org
Here’s Andrea’s bio:
Andrea Sáenz
Andrea Sáenz [was] Attorney-in-Charge of the New York Immigrant Family Unity Project (NYIFUP) at Brooklyn Defender Services. NYIFUP is New York’s first-in-the-nation immigration public defender program representing detained immigrants facing removal. Prior to joining BDS in 2016, Andrea was a Clinical Teaching Fellow in the Immigration Justice Clinic at the Benjamin N. Cardozo School of Law, teaching, litigating, and working on the advocacy that grew NYIFUP at the city and state levels. Andrea has previously worked as an Immigration Staff Attorney at the U.S. Court of Appeals for the Second Circuit, a judicial law clerk at the Varick Street Immigration Court in Manhattan, an Equal Justice Works Fellow at the Political Asylum/Immigration Representation (PAIR) Project in Boston, and a high school ESL teacher. She teaches and trains widely on criminal immigration, detention, and litigation issues. Andrea graduated from Harvard Law School cum laude in 2008 and received her B.A. in English from the University of California, Los Angeles in 2002.
KEY QUOTE:
Andrea Sàenz, Attorney-in-Charge of the New York Immigrant Family Unity Project (NYIFUP) at Brooklyn Defender Services
“Our platform calls for universal representation of immigrants facing deportation, because when the stakes are often literally life, death, or permanent family separation, no one should be deported simply because they couldn’t afford an attorney. We need to change, shrink, and defund the deportation system and reinvest in our communities. ICE enforcement, detention and other cruel immigration policies tear apart families, and we urge the Biden administration and the new Democratic majority congress to listen to our neighbors’ voices.”
Congratulations, Andrea! As one of my esteemed Round Table colleagues said: “Incredibly great news. I couldn’t think of anybody better and more deserving!” Nor can I!
This is great news for American Justice and for the NDPA. It’s even better news for the long suffering victims of perverted justice at EOIR and their courageous attorneys, like members of the NDPA, who have fought in the trenches for due process, human rights, and human dignity against an intentionally rigged and gamed system designed to deny all three of the foregoing. Andrea also has “EOIR creds,” having been a JLC at the Varick Street Immigration Court.
Finally, someone who has witnessed the waste, unfairness, illegality, and human carnage of failed policies enabled by EOIR’s feckless, tone deaf, careless, and complicit performance of their life-determining quasi-judicial duties. This breaks the scandalous two-decade plus exclusion of the “best and brightest” progressive expert judges from the BIA, the nation’s highest immigration and human rights tribunal, that has helped reduce due process and justice for women and people of color before EOIR to a “sick joke!”
I know that’s it’s impossible for any one person, no matter how brilliant, hard-working, and dedicated, to change the anti-asylum, anti-due process, anti-gender-fairness “culture” encouraged @ EOIR by the past Administration and, to date, not effectively repudiated by Garland. But, it is important that the voice of reason, practicality, due process, fundamental fairness, and humanity once again be heard at EOIR!
We all hope and trust that others will follow in your footsteps, Andrea, and eventually form the “new majority” of a much, much better Immigration Judiciary: That the properly generous, sensible, and humane view of asylum law established in Cardoza-Fonseca and Mogharrabi will again become the guiding lights of immigration jurisprudence rather than being parroted (but not followed), mocked, and dishonored by those whose job it is to protect individual Constitutional, legal, and human rights from Government overreach: That “through teamwork and innovation becoming the world’s best tribunals guaranteeing fairness and due process for all” once again becomes the vision of our Immigration Courts at all levels!
Speaking in behalf of the NFPA, we all appreciate the dedication, hard work, consistent excellence, and intellectual and moral courage it took for Andrea to put herself forward and be a pioneer for the better Immigration Judiciary of our future! On behalf of a grateful NDPA and an appreciative Round Table, thanks, congratulations again, and may the forces of due process guide you and be with you forever!
“Adel Ghanem, a former lawful permanent resident of the United States, seeks to avoid removal to Yemen, from which he fled to avoid persecution on account of political opinion. He pursues three forms of relief that were denied by the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA): asylum under the Immigration and Nationality Act, 8 U.S.C. § 1158(a), withholding of removal under the Act, 8 U.S.C. § 1231(b)(3), and withholding of removal under the Convention Against Torture, 8 U.S.C. § 1252, 8 C.F.R. § 1208.16(c). Ghanem was kidnapped and tortured before being convicted and sentenced to ten years’ imprisonment for political opposition to the Houthi regime. We will therefore grant the petition for review and remand to the BIA. … We begin by reviewing the agency’s determination that Ghanem was ineligible for asylum under the INA because he was not persecuted “on account of” political opinion. We perceive two errors in its analysis: First, the Board’s conclusion ignores overwhelming evidence that Ghanem was persecuted on account of political opinion. Second, it erroneously treated familial relationships as disqualifying and failed to give the proper weight to the substantial record evidence that a protected ground remains one central reason for Ghanem’s persecution. … Illustrating “gross, flagrant [and] mass violations of human rights” that he would be unable to escape, the record evidence not only fails to support but directly contradicts the BIA’s conclusions that Ghanem is not likely to be tortured with the government’s acquiescence, if returned to Yemen. 8 C.F.R. § 1208.16(c)(3)(iii).8 The denial of relief under CAT therefore cannot withstand even our most deferential review. … For the foregoing reasons, we will grant Ghanem’s petition, vacate the BIA’s order, and remand to the agency for further proceedings consistent with this opinion.”
How is the BIA’s grotesque misapplication of asylum and CAT law and intentional distortion of the record evidence acceptable adjudication from a Federal Court, even a “quasi-judicial administrative tribunal?” Lives are at stake are here! But, Garland remains indifferent to the deadly ☠️ daily injustices and stunning judicial incompetence and bias he promotes, coddles, defends, and enables at his dysfunctional EOIR!
And what is his OIL doing defending this garbage before the Circuits? Garland’s DOJ is an ethical cesspool and a slimy mess of legal incompetence! Where’s the long overdue “thorough housecleaning” of this gross abuse of taxpayer dollars and walking talking insult to the Canons of Legal and Judicial Ethics!
These aren’t just “honest legal mistakes!” No way! They are the product of an anti-asylum, anti-immigrant, anti-due process, anti-people of color “culture” which was actually encouraged and promoted at EOIR during the Trump regime and still endures!
It starts, but doesn’t end, with aBIA “packed” with a number of Trump/Miller appointees who were nationally renowned for their unsuitability to fairly adjudicate ANY asylum case, let alone to be “elevated” to the highest immigration tribunal. But, it’s not like any BIA Appellate Judge has the guts and integrity to stand up and speak out for immigrants’ rights, human rights, and constitutional due process!
It’s outrageous that the BIA as currently comprised is charged with setting precedents, maintaining consistency, and guaranteeing fairness for asylum applicants, particularly women and people of color. Of course this type of misconduct and incompetence will continue to generate huge, uncontrolled backlogs! THIS national, even international, disgusting disgrace will be Garland’s lasting legacy!
The proposed “asylum reform regulations” and all other immigration and racial justice reforms put forth by Biden will fail without a better, progressive, expert BIA totally committed to due process, fundamental fairness, and racial justice! Why hasn’t Congress demanded an accounting from Garland for his jaw-dropping mismanagement of the Immigration Courts and his failure to make obvious administrative reforms?
Demand better from Garland and the Biden Administration! This disgraceful, dysfunctional, deadly mess at EOIR is NOT OK!🤮👎🏽
DEL RIO, Tex. — Thousands of Haitian migrants who have crossed the Rio Grande in recent days are sleeping outdoors under a border bridge in South Texas, creating a humanitarian emergency and a logistical challenge U.S. agents describe as unprecedented.
Authorities in Del Rio say more than 10,000 migrants have arrived at the impromptu camp, and they are expecting more in the coming days. The sudden influx has presented the Biden administration with a new border emergency at a time when illegal crossings have reached a 20-year high and Department of Homeland Security officials are straining to accommodate and resettle more than 60,000 Afghan evacuees.
The migrants arriving to Del Rio appear to be part of a larger wave of Haitians heading northward, many of whom arrived in Brazil and other South American nations after the 2010 earthquake. They are on the move again, embarking on a grueling, dangerous journey to the United States with smuggling organizations managing the trip, according to border authorities and refugee groups.
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Read the rest of the article at the link.
The arrival of asylum seekers at the Southern Border is predictable. Contrary to GOP right wing nativist BS, asylum seekers don’t present a significant national security threat to the U.S.
On the other hand, Texas Governor Gregg Abbott and his GOP right wing crazies are a clear and present existential danger to our heath and security as a nation. Don’t let Abbott and his neo-fascist gang shrift the focus away from their lawless, stupid, and immoral behavior — with glaring racial overtones!
The current disorder is the direct result of Mayorkas and Garland not taking the obvious steps to re-establish credible fear screening at ports of entry and the lack of progressive leaders and judges at EOIR who could cut through the self-created backlog and establish and enforce fair precedents and procedures that would enable timely, yet fair and efficient, processing of asylum cases in Immigration Court for those who pass credible fear.
Instead, Garland has gone with inane, backlog-building, aimless-docket-reshuffling encouraging “gimmicks” like “Dedicated Dockets,” and ill-advised proposals to increase use of “expedited removal” and limit the rights of asylum seekers to de novo hearings, without instituting the major EOIR reforms necessary to make such a system credible.
So far, the results have been predictably chaotic and ineffective. By dragging their feet on elimination of the Title 42 farce initiated by Trump & Miller, Garland and Mayorkas now find themselves “between a rock and a hard place” because of District Judge Sullivan’s recent order finding the misuse of Title 42 to “orbit” asylum seekers to doom without any process was likely illegal.
A restored, fair, legal asylum system inevitably would result in the legal admission of more asylees. Again, contrary to the GOP blather, that is something 1) our law requires, and 2) our country needs. Running a viable refugee program for the Americas outside U.S. borders is also something that should already have been in operation and could reduce the necessity for irregular entries.
Restoration of the rule of law and morality at the border would also take the regulation of immigration out of the hands of smugglers and cartels and restore it to the Government. But, that requires both an understanding of the dynamics of human migration and the courage to do the right thing in making the system work — not as a “false deterrent” but as a fair, generous, efficient, and equitable system, led by and composed of progressive human rights experts.
In the wake of the DOJ’s decision to appeal Judge Sullivan’s order and reports that the Biden Administration will begin illegal deportations of Haitians back to danger zones in Haiti without any due process, 71 human rights organizations wrote a letter blasting the Administration’s actions.
September 17, 2021
Hon. Joseph R. Biden, Jr. President of the United States 1600 Pennsylvania Avenue, NW Washington, DC 20500
Hon. Alejandro N. Mayorkas
Secretary of Homeland Security
U.S. Department of Homeland Security 2707 Martin Luther King Jr. Avenue, SE Washington, DC 20528
Hon. Merrick Garland
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue NW Washington, DC 20530
Dear President Biden, Secretary Mayorkas, and Attorney General Garland:
In the wake of multiple federal court decisions holding that your administration’s policies are likely unlawful, we, the 71 undersigned organizations, are appalled that you have chosen to file a notice of appeal in the Huisha-Huisha litigation, resisting an order to process the protection claims of families with children who seek asylum. This decision serves as a particularly disturbing step in what is emerging to be a clear pattern of failure to uphold the refugee laws enacted by Congress. We write to urge you to immediately change course before you further tarnish this administration’s record and inflict even more harm on families, children and adults seeking our country’s protection. We call on the administration to immediately end its embrace, defense, and advancement of illegal and cruel Trump administration policies that harm families and people seeking protection and bolster xenophobic rhetoric by treating people seeking protection as threats. Instead, we urge your administration to restore access to U.S. asylum at ports of entry and also to immediately stop blocking and expelling asylum seekers and migrants to life-threatening dangers.
On September 16, a federal district court held that the government likely does not have authority under U.S. law to implement the Title 42 policy, which subjects people to “real threats of violence and persecution” by returning them to danger in Mexico or the countries they fled, and enjoined the use of the policy against families. Rather than respect human rights and restore asylum in compliance with this ruling, the administration has already filed a notice of appeal in this case. Earlier this month, another federal district court held that the government’s policy of turning back people seeking protection at ports of entry is likely unlawful under the Immigration
and Nationality Act. Your administration must reverse course and accept these court rulings, immediately take steps to restart asylum processing, and permanently end these policies, which were designed to deter and punish people seeking safety in the United States and betray our values and legal obligations towards refugees.
Rather than abiding by campaign promises to uphold the legal right to seek asylum and treat migrants humanely, your administration has embraced and escalated the unlawful Title 42 policy created by the Trump administration to use public health as a pretext to evade U.S. refugee laws. In August 2021, your administration issued a new Centers for Disease Control and Prevention (CDC) order extending the policy and relying on much of the same dangerous and false rhetoric that the Trump administration relied on in its CDC orders.
The human toll of the Title 42 policy during your first eight months in office is enormous. Since January 2021, there have been at least 6,356 public and media reports of violent attacks— including rape, kidnapping, trafficking, and assault—against people blocked from requesting asylum protection at the U.S.-Mexico border and/or expelled to Mexico. The U.N. Refugee Agency (UNHCR) and other international bodies have repeatedly condemned the use of Title 42 to return refugees to danger in violation of international law and urged the United States to restore access to asylum. Leading public health experts have warned the administration time and time again that the policy has no scientific basis as a public health measure and urged the use of rational science-based measures to process asylum seekers and migrants to safety. In its ruling enjoining the use of Title 42, the district court also emphasized that the government’s public health arguments were specious.
This month, the Department of Homeland Security (DHS) expelled dozens of Haitian families and adults to danger in Haiti under Title 42, despite ongoing turmoil following the assassination of the country’s president in July and a major earthquake in August, and flew more than 6,000 Guatemalan migrants and asylum seekers directly to the danger they had fled in Guatemala without an opportunity to apply for U.S. asylum. Since August, DHS has also expelled asylum seekers and migrants directly to southern Mexico, where Mexican immigration authorities forced them to cross the border into remote areas of Guatemala. These expulsions to southern Mexico sparked public condemnation from UNHCR, which warned that this practice “increases the risk of chain refoulement—pushbacks by successive countries— of vulnerable people in danger, in contravention of international law and the humanitarian principles of the 1951 Refugee Convention.”
We further call on your administration to take all necessary legal steps to end the Migrant Protection Protocols (MPP), most importantly by immediately making a public commitment to issue a new policy memo that provides a fuller explanation for the decision to terminate MPP and that resolves any perceived Administrative Procedure Act (APA) issues identified by the district court in its ruling requiring the government to restart this shameful program. The APA
2
was the singular concern cited by the Supreme Court in its decision upholding the district court’s preliminary injunction, and the administration’s failure to date to commit to issuing a new policy memo raises serious concerns over whether you intend to use the legal challenge as cover to backtrack on your commitment to fulfill your campaign promise to end MPP.
During the two years that MPP was in effect, there were over 1,500 publicly reported cases of violent attacks against people returned to Mexico, including asylum seekers who were brutally murdered. In addition to subjecting individuals to life-threatening dangers under MPP, the program violated the due process rights of asylum seekers and migrants by stranding them in Mexico without access to legal counsel, forcing them to risk their lives to attend their court hearings—there have been numerous reports of asylum seekers in MPP being kidnapped while attempting to reach immigration court—and requiring many to prepare their cases while facing unrelenting fear and insecurity. It is clear that there is no way to make MPP lawful, humane, safe, or rights-respecting. The administration should take all lawful and necessary steps to preserve the MPP wind down and continue processing individuals previously subjected to MPP into the United States while taking immediate steps to address the District Court’s concerns to terminate the policy once and for all.
Policies that turn back, block, expel, and force asylum seekers and migrants to wait in danger are unlawful, as now confirmed by multiple federal courts, and we entreat your administration to immediately stop inflicting violence on people seeking safety in our country by permanently ending these policies and restoring asylum in compliance with U.S. and international refugee laws.
Sincerely,
ADL (Anti-Defamation League) African Communities Together Aldea – The People’s Justice Center Alliance San Diego
America’s Voice
American Friends Service Committee
American Immigration Lawyers Association
Asylum Seeker Advocacy Project (ASAP)
Bellevue Program for Survivors of Torture
Border Angels
Border Kindness
Border Organizing Project
Bridges Faith Initiative
Capital Area Immigrants’ Rights Coalition
CARECEN SF – Central American Resource Center of Northern California
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Catholic Charities of Southern New Mexico Catholic Legal Immigration Network, Inc. Center for Justice and International Law (CEJIL) Center for Victims of Torture
Church World Service
Detention Watch Network
Familia: Trans Queer Liberation Movement
First Focus on Children
Florence Immigrant & Refugee Rights Project Grassroots Leadership
Haitian Bridge Alliance
HIAS
Hope Border Institute
Houston Immigration Legal Services Collaborative Human Rights First
Human Rights Initiative of North Texas
Immigrant Defenders Law Center
Immigration Equality
International Mayan League
International Refugee Assistance Project (IRAP) International Rescue Committee
Japanese American Citizens League
Jesuit Refugee Service/USA
Jewish Activists for Immigration Justice of Western MA Justice Action Center
Justice in Motion
Karen Organization of San Diego
Kino Border Initiative
Latin America Working Group (LAWG)
Lawyers for Good Government (L4GG)
National Immigrant Justice Center
National Immigration Law Center
National Immigration Project (NIPNLG)
National Network for Immigrant & Refugee Rights NETWORK Lobby for Catholic Social Justice
Oasis Legal Services
Oxfam America
Physicians for Human Rights
Project Blueprint
Refugees International
4
Safe Harbors Network
San Diego Immigrant Rights Consortium
South Bay Peope Power
Student Clinic for Immigrant Justice
Tahirih Justice Center
The Advocates for Human Rights
Transgender Law Center
Unified U.S. Deported Veterans resource Center
Unitarian Universalist Refugee & Immigrant Services & Education VECINA
Vera Institute of Justice
Washington Office on Latin America (WOLA)
Witness at the Border
Women’s Refugee Commission
Young Center for Immigrant Children’s Rights
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Obviously, the Biden Administration has little regard for the human rights advocates who helped put them in office. Only time will tell whether disrespecting, antagonizing, and making enemies and adversaries out of a highly talented and motivated group of progressives, who successfully fended off some of the most grotesque human rights violations by the Trump kakistocracy, and who have demonstrated the capacity to consistently “out-litigate” the floundering DOJ, will prove to be a successful strategy!
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — Those who don’t die in the river, the desert, or at the hands of traffickers while trying to seek asylum in an arrogant America that disdains human rights and moral values face arbitrary and illegal removal to potential torture, rape, and death in the countries they fled! Why is the Biden Administration, like the Trump kakistocracy, afraid to make fair and honest determinations of qualifications for asylum? EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
