"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.
Reena Diamante reports for the Spectrum News El Paso:
. . . .
“A president doesn’t have the unilateral authority to shut down the border. If a president did, the prior president would have done it,” said Alberto Benitez, director of the Immigration Clinic at George Washington University Law School. “Even the prior president, who had a particular perspective on immigration, never shut down the border. There needs to be buy-in from Congress that a border shutdown is necessary, which there never has been.”
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You can read the full article at the link.
Professor Benitez modestly quipped that this was: “My five seconds of fame on Spectrum News!”
You are always in the “NDPA Hall of Fame,” my friend!
Sarah Jessica Parker will NOT be appearing in the Garland/Monaco production of “Sex And The Courthouse!” Photo by Shawn Miller/Library of Congress. Public Domain.
Law360 (February 5, 2024, 6:23 PM EST) — The U.S. Department of Justice will pay $1.2 million to resolve a suit from a former staff assistant who said a California immigration judge routinely subjected her to explicit, lewd comments and once told her he would “make her straight” if they had sex.
By Grace Elletson
This article is “paywalled.” Those with Law360 access can get all the details.
But, the final settlement agreement is public and should give you a picture of what’s happening inside Garland’s often-secretive and dysfunctional “courts.”
On January 22, 2021, two days after President Joe Biden’s inauguration, then SF Chron reporter Tal Kopan ran an extensive, well-documented expose of the widespread sexual harassment problems at EOIR, the home of the U.S. Immigration Courts at the USDOJ. The story was picked up by other publications. Also, it was highlighted in that day’s edition of “Courtside,” along with a strong suggestion for immediate action addressed to incoming AG Judge Merrick Garland and AAG Vanita Gupta (a former, now very former, “civil rights maven”), both of whom had been nominated but not yet confirmed. Seehttps://immigrationcourtside.com/2021/01/22/🇺🇸⚖%EF%B8%8Fnote-to-judge-garland-and-vanita-gupta-misogyny🤮-is-running-rampant-in-the-eoir-courts-soon-to-be-your/.
Tal Kopan, Deputy Washington Bureau Chief for the Boston Globe. As a reporter for the S.F. Chron in 2021, she ripped the covers off massive sexual harassment problems at EOIR.
Lisa Monaco, Deputy AG. In apparent response to Kopan’s expose, Monaco established a committee to look into sexual harassment at EOIR and the rest of DOJ. But, not surprisingly, the recent $1.2 million settlement with a former EOIR female staff member shows that complaints languish, resolutions are opaque, and wronged individuals have to force action by suing in Federal Court! Official USG Photo, Public Realm
It now appears that Monaco’s efforts at reform have been just as lackadaisical as her implementation of Biden’s Executive order on regulations improving the treatment of gender-based claims at EOIR and elsewhere in Government, and her and her boss’s disturbingly inept approach to EOIR reform generally!
Yet, even with clear notice of the festering problems and an opportunity to address them in a way that would “change culture,” it required the institution of a Federal lawsuit by the plaintiff to obtain action and an effective remedy, almost three years after her termination.
After years of overt anti-asylum bias and misogyny from Sessions and Barr, long suffering respondents, practitioners, and many EOIR employees expected a “due process/good government renaissance” under former Federal Judge and Supreme Court nominee Merrick Garland. However, despite a few improvements, Garland has “floated above” the chaos and lack of quality control that daily vex and plague those trapped in his dysfunctional, hopelessly backlogged “courts.” PHOTO: Wikipedia Commons
It’s difficult to quantify the actual costs of EOIR mismanagement by Garland and his political lieutenants. After all, how do you put a money value on wrongful deportations, denial of constitutional rights, being subjected to substandard anti-immigrant decision making, bad precedents, “Aimless Docket Reshuffling” (“ADR”) on steroids, poorly trained judges, years stuck in limbo without the relief to which you are entitled, the effect of statistics manipulated to downplay the number of legal refugees stuck in EOIR’s hellish 3 million+ backlog, “courts” intentionally located in obscure inaccessible locations within the “New American Gulag” (“NAG”) run by DHS, and the overall “customer unfriendly” and often intentionally coercive mess to which those who practice before EOIR and those whose fate is in EOIR’s hands are subjected every working day? You can’t!
Nor is the waste of finite USG resources on chronic structural inefficiencies, boneheaded schemes to expedite dockets as “deterrents,” and ill-advised “defenses of the indefensible” in Federal Courts easy to value. But, in this case, we can quantify the cost to taxpayers of Garland’s and Monaco’s poor leadership — $1.2 million!
I wonder how many qualified accredited representatives a real problem solver and due process innovator like Professor Michele Pistone at VIISTA Villanova could train with that kind of money?
The poor leadership of Garland on immigration matters and the lousy performance of EOIR continue to be drags on the Biden Administration and our justice system. It didn’t have to be this way!
No Longer in the Cast: Former Associate AG Vanita Gupta, who left DOJ after three years of “failing to connect the dots” among civil rights, the rule of law, and the glaring violations of human rights and due process taking place at EOIR and the rest of the immigration bureaucracy. Literally, these abuses took place right under her nose, but apparently below her radar screen!
During Gupta’s tenure, the already horrible treatment of asylum seekers and other migrants of color within EOIR and the immigration bureaucracy actually deteriorated in many ways. Gupta is a sad, yet classic, example of what routinely happens to progressives once they are invited into the “halls of power” within the Government: They get co-opted into defending the status quo and the dangerous fiction of “revolution by evolution.” See, e.g., Perry Bacon, Jr., https://www.washingtonpost.com/opinions/2024/02/06/equity-diversity-inclusion-progressivism-limits/.
Just ask neo-Nazi Stephen Miller how “revolution” really works! He spent every day of his tenure in the Trump Administration single-mindedly working to dehumanize and demonize immigrants, particularly those of color and women, and to strip them of their already overly-limited rights. He paid no attention whatsoever to criticism, naysaying, and resistance from within or without. He took every “defeat” in Federal Court as an invitation to do something even worse and more outrageous.
While Gupta, despite her lofty position and civil right creds, was unable to materially improve the situation of migrants, Miller undid decades of progress on due process, racial justice, gender justice, and good government. Much of the damage he inflicted remains imbedded in the system, at DOJ, DHS, and elsewhere, as do many of those who willingly and enthusiastically assisted him.
The contrast between Gupta’s and Miller’s accomplishments and government “legacies” is a stunning illustration of the difference between Democrats and Republicans when it comes to immigrants’ rights, human rights, and racial justice — the fundamentals of governing. Democrat “political strategists” are belatedly “wondering and wandering” what to do about an “enthusiasm gap” with their core progressive voters who put Biden and Harris in office. The answer is staring them right in the face: Results matter!
Liz Mineo, Staff Writer, interviews Professor Neuman in The Harvard Gazette:
. . . .
What should be done about border security, enforcement, and the immigration court backlog?
In terms of enforcement, there is no easy solution. A border fence is merely a symbol and no solution. Clearly, the adjudication system needs more resources, and adjustments to improve both efficiency and fairness. For both sides, justice delayed is justice denied, and that should be an important part of the focus.
Another priority, contrary to some claims, is to reduce reliance on detention. The U.S. is engaged in arbitrary detention of migrants who really don’t need to be detained; they could be subject to surveillance.
The country should also respect its international obligations not to send people back to countries where they will be persecuted, tortured, or killed. It cannot suspend its international obligations on that front, and it should not openly violate them, as it did under COVID.
What measures should be taken to reduce the flow of migrants into the U.S?
In terms of enforcement, the important point to stress is that this is not an issue that the U.S. can solve unilaterally. There must be a regional solution. It’s obvious to anyone who looks at the logistics of the problem that the solutions depend on cooperation with Mexico. Congress can’t just impose a solution and assume that Mexico will go along with it. More broadly, there are other countries that need to be involved in protecting refugees and in solving some of the problems that lead to migration.
Some experts say the asylum system is a parallel immigration system and that it should be revamped. What’s your take on this?
I’d like to use the term asylum broadly, not legalistically, to cover forms of protection from persecution, killing, and torture. The U.S. asylum system is too opaque and too inconsistent: Valid claims may be rejected, and claims that are made in perfectly good faith may turn out to be invalid.
On the other hand, some people seek desperately to come to the U.S. for reasons that are not covered by asylum, such as poverty, loss of livelihood, or to join family members. The system needs to winnow those claims out while remaining open to valid claims for protection. It would also benefit from greater clarity on which claims are valid, and from more consistent adjudication, but now, the system is not meeting its obligations to persecuted people.
Finally, what are your realistic hopes for changes in immigration policies?
For now, my hopes would be that any new legislation would increase funding and would help give the public the sense that the border situation is being addressed.
And meanwhile that the executive would use the authority that it already has to manage the situation better, including by negotiating with other countries. The executive should resist efforts that obstruct its compliance with its obligations.
There is danger that any new legislation would decrease protection, which would mean that we would be taking no steps forward, and several steps backward, and that nonetheless, issues about migration would remain just as divisive as they are now.
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Read the full (edited) interview at the link.
“Decrease protection” seems to be a toxic bipartisan goal of Congress and the Administration. What’s preventing it? They can’t agree on the amount of cruelty, suffering, and dehumanization to inflict on vulnerable forced migrants who overwhelmingly seek only to have the USG process their legal claims for protection in a fair and timely manner! That reality has clearly been lost in the rancid, one-sided, often secret “negotiations” in Congress; the insipid statements of the Biden Administration promising more border closures, cruel, inhuman, degrading, expensive, and wasteful detention; and treacherous “bipartisan” abrogation of well-established “life or death” legal rights to fair consideration of claims!
Professor Neuman says “this is not an issue that the U.S. can solve unilaterally.” There is general consensus among migration experts on this fundamental truth! Yet, Congress and the Administration keep pretending otherwise, with little critical, informed “pushback” from the media.
Why isn’t Kristen Welker interviewing Professor Neuman and other migration experts, rather than making “Meet the Press” a “Foxlike Forum” for those promoting White Nationalist lies about the border and national security? Welker hasn’t bothered to inform herself about the human lives and human rights involved with forced migration at the border. Therefore, her feeble attempts to stop GOP nativist politicos from rambling on with their border myths are somewhere between ineffective to pathetic, but certainly must be maddening to anyone involved with assisting the actual humans seeking protection under our dysfunctional legal system!
Garland’s inexcusable failure to fix EOIR and get it working fairly, professionally, expertly, and in real time is a drag on the Biden Administration immigration policies and an existential threat to our democracy!
NDPA “Four Star General” ⭐️⭐️⭐️⭐️ Charles Kuck reports:
My partner Danielle Claffey won yet ANOTHER Russian Asylum case the belly of the beast Atlanta Immigration Court.THIS is why lawyers are essential in asylum cases!
Danielle says:
Earlier this week, I had the great fortune of securing asylee status for a young Muslim girl from Russia, before an Atlanta immigration judge. Though she is young and was so quiet for the last year I was handling her case, in court, she was strong, confident, and provided vivid detail of what she went through for the entire 19 years of her life in Russia before fleeing for America. After the judge formally granted her asylee status, and the government waived appeal, the judge told her she was sorry for everything she went through in her home country. When the judge granted her case, and the interpreter translated the judge’s words, it was the first time I saw my client smile, followed by a big deep breath. She has carried a lot in her 21 years, but can now rest easy and pursue all of her dreams here in the U.S.
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Danielle M. Claffey, Esquire Partner Kuck Baxter LLC Atlanta, GA PHOTO: Kuck Baxter
Many congrats, Danielle, and thanks so much for sharing! With great representation, anything is possible, even in Atlanta!
THIS is actually the way Immigration Court could and should work on a regular basis from all involved! Teamwork for justice! Note that:
No appeal;
No petition for review;
No remand;
No “aimless docket reshuffling;”
No need to keep renewing work authorization;
Respondent feels welcomed and understood by U.S. justice system;
Respondent leaves courtroom on the way to a green card, eventual U.S. citizenship, and can fulfill full potential in society;
Models and rewards best practices and professional cooperation (by EOIR, ICE, and the private bar) in achieving “justice with efficiency;”
As Charles says, representation is essential; you bet; so, why hasn’t Garland worked WITH the pro bono bar, NGOs, and clinical educators to facilitate representation in every asylum case? (HINT: “Aimless Docket Reshuffling” and its derivative “Expedited Dockets” — both “Garland specialties” — are major, DOJ-created, impediments to effective representation and are particularly discouraging and problematic for pro bono representatives!
“The BIA erred in affirming the IJ. The entirety of the BIA’s analysis about the motion to reopen was that Davis “has not established that evidence of his mental health issues and of his past and feared harm if returned to Liberia are new, previously unavailable, or would likely change the result in his case.” This one sentence alludes to the elements of a motion to reopen, but does not explain how they apply to Davis’s case. Neither the IJ nor the BIA met the requirements of reasoned decision-making. … Without an adequate explanation, this Court cannot conduct a meaningful review of the BIA’s September 30, 2022 order. … This Court grants Davis’s petition for review in case no. 22-3262, denies the petition for review in case no. 23-1229, and remands for further proceedings consistent with this opinion.”
[Hats off to Colleen Mary Cowgill, Joseph N. Glynn, Elaine Janet Goldenberg, Keren Hart Zwick, Zachary Scott Buckheit, Golnaz Fakhimi, David R. Fine, Kira Michele Geary, Haarika R. Reddy, Cynthia Louise Rice and Kate Thorstad!]
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Congrats to the NDPA team from Immigration and Disability Law Scholars.
But, this is an example of how Merrick Garland’s DOJ is failing the basics of American justice! Note that:
Two levels of EOIR flunk “Judging 101” — badly;
Inappropriate “defense of the indefensible” (and easily correctable) by Garland’s DOJ (OIL) asserting semi-frivolous jurisdictional argument;
Wastes Court of Appeals time on something Garland could and should have corrected and prevented from reoccurring;
Failure to follow Circuit precedent by both EOIR and OIL;
Failure to apply established standards;
Likely use of mindless “any reason to deny boilerplate” at EOIR;
Generates needless motion to reconsider;
After four years, two IJ hearings, two administrative appeals, a motion to reopen, a motion to reconsider, a trip to the Court of Appeals, case remains unresolved;
Competent EOIR Judges could have reopened the case and ruled on the merits in less time and using fewer resources than trying to mindlessly avoid providing the respondent with a reasoned decision;
In a system with three million pending cases these types of easily avoidable, sophomoric mistakes from supposedly “expert” judges are repeated over and over again— not always caught and corrected — leading to denials of due process and fundamental fairness and promoting backlog-building “aimless docket reshuffling!”
What if the the wonderful team at “Immigraton and Disability Law Scholars” could devote 100% of their time to representing vulnerable individuals at merits hearings in Immigration Court rather than having to correct avoidable mistakes by EOIR and OIL?
After three years in charge of EOIR, why hasn’t Merrick Garland, a former Court of Appeals Judge nominated to the Supremes:
Cleaned house at EOIR;
Brought in new, expert, dynamic, due-process-focused leadership;
Institutionalized best practices (see example 1 above);
Attacked system-wide anti-immigrant culture, lack of quality control, and unprofessional decision-making that continues to plague this critical “retail level” of American justice (see example 2 above);
Fixed OIL so that it will stop undermining justice in America by raising specious arguments and defending indefensible EOIR mistakes in the Article III Courts?
Merrick Garland’s “Alfred E. Neumann Approach” at EOIR: Indolent, inappropriate, ineffective! PHOTO: Wikipedia Commons
It’s not rocket science; it doesn’t require legislation (although Garland certainly should have been publicly pushing for Article I); it just takes a laser-focused commitment to due process, fundamental fairness, best practices, and efficient delivery of justice from what continues to be America’s worst “court system!”
Why that leadership and action isn’t coming from Garland is a question that everyone who cares about the future of American🇺🇸⚖️ justice should be asking every day! Fix the fixable! Model the best! That’s “Good Governing 101!”
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
A Victory before the BIA!
Hi All: I hope you are not getting tired of all the winning. Today, the BIA issued a precedent decision on the whole Pereira and Niz-Chavez jurisdictional issue involving service of a defective NTA (link attached) in which our Round Table submitted an amicus brief drafted for us by our own Sue Roy.And the BIA actually agreed with us!!!
The holding:
The Department of Homeland Security cannot remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261 because this remedy is contrary to the plain text of 8 C.F.R. § 1003.30 and inconsistentwith the Supreme Court’s decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021).
Of course, our brief was not acknowledged in the Board’s decision.
A thousand thanks to Sue and to all in this group who have repeatedly signed on in support of due process.
As a reminder, we still await a decision from the Supreme Court on whether Pereira and Niz-Chavez extend to in absentia orders of removal. Oral arguments in that case were heard earlier this month, and our brief was mentioned in response to a question by Chief Justice Roberts.
Best, Jeff
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“Our Hero” 🦸♂️ Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration JudgesKnightess of the Round Table
Want to meet Judge Sue Roy in person and learn from her in a small group setting? You’re in luck! (HINT: She’s not only a very talented lawyer and teacher, but she’s also very entertaining and down to earth in her “Jersey Girl Persona!”)
“Don’t mess with Jersey Girls! They’ll roll right over you — in or out of court.” Creative Commons License
The Round Table 🛡️ will be well-represented by Judge Roy, Judge Lory Diana Rosenberg, and me at the upcoming Sharma-Crawford Clinic 7th Annual Immigration Court Trial Advocacy College in Kansas City, MO, April 24-26, 2024! We’ll be part of afaculty of all-star 🌟 NDPA litigators who are there to help every attendee sharpen skills and reach their full potential as a fearless litigator in Immigration Court — and beyond!
People close to Mr. Biden said he had always supported enforcing the law. Some of his top aides, such as Susan E. Rice, who served as his domestic policy adviser until last summer, and Jake Sullivan, his national security adviser, embodied that tough-minded approach.
“Migrants and asylum seekers absolutely should not believe those in the region peddling the idea that the border will suddenly be fully open to process everyone on Day 1,” Ms. Rice had said early on in Mr. Biden’s presidency.
Contrary to these border myths, which the NYT article does not really adequately take on, “the law” requires that individuals be given a chance to apply for asylum regardless of “status” and “entry point.” Congress provided a “quick screening” process called “credible fear” to deal with “mass migration” situations.
Assuming for the sake of argument that “the law” also requires that individuals be “detained” while credible fear screening and adjudication of claims by those who pass takes place, four elements are necessary for the legal system to work in a fair and timely manner.
Humane, NGO-operated reception centers, with on-site representation available, in locations preferably removed from the immediate border for screening to take place;
A huge corps of true expert Asylum Officers to do credible fear screening and outright grant clearly valid cases wherever possible;
A large corps of true expert Immigration Judges and BIA Appellate Judges to guide Asylum Officers, review their work, and, where the case can’t be granted at first instance, conduct timely full adjudication of claims for those who pass credible fear, prioritizing those claims most likely to succeed;
A functional resettlement program for those granted asylum and those whose cases require more in-depth process.
These four steps are the core of what real law enforcement at the border is all about! Prioritize them, accomplish them, and the other pieces will fall in place.
Contrary to Susan Rice, Jake Sullivan, and what the NYT article suggests, a plan to accomplish this 1) isn’t rocket science; 2) does not require legislation; and 3) needed to be “ready to go” with dynamic, courageous, due-process-focused leadership on Day 1 of the Administration or very shortly thereafter.
As always in Government, it’s a question of priorities, courage, and leadership. Despite the “overabundance” of proven, creative legal and administrative talent then in the private sector, most of whom were available to assist Biden, the Administration was not “ready to roll” with this program on Day 1 (as Steven Miller was with his vile “kill asylum and asylum seekers” agenda).
Sadly, even today, the Administration has not come close to putting in place any of these four critical requirements for success. It was highly predictable to any informed expert that forced migrants would continue to arrive at the border in large numbers and that GOP White Nationalists would “leverage” the Administration’s failure to achieve order at the border.
There is something else that’s completely predicable: That, if passed (a big if), the “nativist-driven compromise” now being “debated” by Congress and the Administration will NOT solve the humanitarian issue of forced migration BUT WILL create more death, trauma, and failure at the border and beyond.
Until America elects humanitarian-focused, problem-solving leaders with the vision to regularize fair asylum processing and the courage and skills to implement it, our border will continue to be a godawful mess: Just as GOP White Nationalists want! And, the great opportunity presented by talented asylum seekers who want only to save their and their families’ lives while helping us succeed will be squandered.
The long-awaited bipartisan Senate deal on immigration contains no real reforms, such as a pathway to citizenship for undocumented immigrants. It’s all about “securing” the border.
Biden and Senate Democrats have caved to Senate Republican hardliners. Among other restrictions, the bill would make it much harder for people to apply for asylum.
On Friday evening Biden called the bill “the toughest and fairest set of reforms to secure the border we’ve ever had in our country.”
Then Biden went further — endorsing a full border shutdown. He said the bill “would give me, as President, a new emergency authority to shut down the border when it becomes overwhelmed. And if given that authority, I would use it the day I sign the bill into law.”
I very much doubt Biden would shut the border if he signs this bill into law.
So what’s going on here? The underlying politics here has nothing to do with funding Ukraine. It doesn’t have to do with reforming immigration. It doesn’t even have much to do with the practical challenge of securing the border.
It has everything to do with the 2024 election, in which border security has become a big issue.
The nation does have to take reasonable action to stem the illegal flow of immigrants. But Trump has stoked American’s fears with lies (see below).
Trump and Biden are engaged in a giant pre-election kabuki fight over the border.
Biden wants to take the border issue away from Trump and figures this bill will do it. Which is exactly why Trump doesn’t want the bill enacted. “As the leader of our party, there is zero chance I will support this horrible, open-borders betrayal of America,” Trump said on Saturday. “It’s not going to happen, and I’ll fight it all the way.”
Trump says he welcomes criticism from GOP senators. “Please, blame it on me. Please, because they were getting ready to pass a very bad bill.”
House Speaker Mike Johnson, Trump’s lapdog-in-chief, says the bill is “dead on arrival” in the House. Besides, he now says, it isn’t needed because Biden already has all the authority he needs to close the border.
Um … just last year, Johnson argued that Congress must tighten immigration laws to strengthen the president’s hand. When he was president, Trump sought similar additional authority from Congress.
Meanwhile, House Republicans are about to begin impeachment proceedings against Alejandro Mayorkas, homeland security secretary, for allegedly being too soft on border security — even though Mayorkas worked with Senate Republicans to come up with this hardline border deal.
We need to deal with the border, but Republicans are now the ones sitting on their hands because they’re beholden to Trump. We also need to deal with immigration in a humane way by offering a broad and reasonable path to citizenship, but Democrats seem to have forgotten this basic goal.
The public, meanwhile, is utterly confused by Trump’s demagoguing. Here are Trump’s biggest lies, followed by the truth.
Trump claims Biden doesn’t want to stem illegal immigration and has created an “open border.”
Rubbish. Since he took office, Biden has consistently asked for additional funding for border control.
Republicans have just as consistently refused. They’ve voted to cut Customs and Border Protection funding in spending bills and blocked passage of Biden’s $106 billion national security supplemental that includes border funding.
Trump blames the drug crisis on illegal immigration.
Trump claims that undocumented immigrants are terrorists.
Baloney. America’s southern border has not been an entry point for terrorists. For almost a half-century, no American has been killed or injured in a terrorist attack in the United States that involved someone who crossed the border illegally.
Trump says undocumented immigrants are stealing American jobs.
Nonsense. Evidence shows immigrants are not taking jobs that American workers want. The surge across the border is not increasing unemployment. Far from it: Unemployment has been below 4 percent for roughly two years, far lower than the long-term average rate of 5.71 percent. It’s now 3.7 percent.
Trump claims undocumented immigrants are responsible for more crime in America.
More BS. In fact, a 2020 study by the Proceedings of the National Academy of Sciences, cited by the Department of Justice, showed that undocumented immigrants have “substantially” lower crime rates than native-born citizens and legal immigrants. Despite the recent surge in illegal immigration, America’s homicide rate has fallen nearly 13 percent since 2022 — the largest decrease on record. Local law enforcement agencies are also reporting drops in violent crime.
Since he entered politics, Donald Trump has fanned nativist fears and bigotry.
Now he’s moving into full-throttled neofascism, using the actual language of Hitler to attack immigrants — charging that undocumented immigrants are “poisoning the blood of our country” and saying they’re “like a military invasion. Drugs, criminals, gang members and terrorists are pouring into our country at record levels. We’ve never seen anything like it. They’re taking over our cities.” He promises to use the U.S. military to round up undocumented immigrants and put them into “camps.”
The parallels with Nazi Germany are chilling. In 1932, the canny Nazi propagandist Joseph Goebbels called for “a thick wall around Germany,” to protect against immigrants. “Certainly we want to build a wall, a protective wall.”
Trump and his enablers want us to forget that almost all of us are the descendants of immigrants who fled persecution, or were brought to America under duress, or simply sought better lives for themselves and their descendants.
Immigration has been good for America. As the median age of Americans continues to rise, we’ll need more young people from around the world.
The central question shouldn’t be how to secure our borders. It should be how to create an orderly and humane path to citizenship.
“Kabuki Theater” with human lives! The REAL “national security threats” — Trump, Abbott, DeSantis, and their MAGA toadies like MAGAMike — subvert our democracy in plain view! ATTRIBUTION: Creative Commons 2.0
Lost in the overheated and too often misleading media hype of this issue is a simple truth: Congress and Administrations of both parties have failed to fulfill our Government’s duties under international and domestic laws (which are based on international requirements) to establish a fair, generous, expert, timely asylum adjudication system — one that complies with due process and actually gives asylum applicants the required “benefit of the doubt.”
Now, in a show of supreme political cowardice, egged on by the White Nationalist right and their lies, politicos of both parties and in all three branches of Government seek to cover up their failure by punishing and endangering the lives of their victims! The latter are legal asylum seekers — human beings — who overwhelmingly present themselves to authorities at the border in an orderly fashion to get a fair adjudication of their claims. Our Government routinely denies them that fundamental right through ridiculous delays, bad precedents, poor quality adjudications, underfunding, deficient leadership, and coercive gimmicks like bogus prosecutions, imprisonment, denial of access to counsel, and illegal and immoral family separation.
Meanwhile, Dems are failing to stand up for the human and legal right to seek asylum, which is being violated right and left and which the “Senate compromise” promises even more scofflaw violations of human rights and basic human dignity.
We can diminish ourselves as a nation, but it won’t stop human migration — particularly forced migration!
🇺🇸🗽⚖️😎 THERE’S STILL SOME INSPIRING NEWS TO REPORT: 1) CHICAGO PASTORS WELCOME BUSSES; 2) GW LAW CLINIC STUDENTS HELP NEW ARRIVALS; 3) W&M LAW CLINIC WINS 27 CASES; 4) NDPA STAR KIM WILLIAMS, ESQ, TRIUMPHS OVER GARLAND DOJ’S “NEXUS NONSENSE” IN 1ST CIR; 5) HRF’S ROBYN BARNARD CALLS OUT BIDEN’S THREAT TO TRASH ASYLUM; 6) CEO BILL PENZY LIKES & APPRECIATES IMMIGRANTS!
Locals and migrants attend a banquet at First Presbyterian Church of Chicago on Nov. 30, 2023. (Photo by Max Li)
(RNS) — Chicago was already facing a homelessness crisis before Texas’ Republican governor, Greg Abbott, began directing thousands of migrants entering his state to Democratic bastions that had declared themselves migrant-friendly sanctuary cities.
Since the transfers began in April 2022, more than 20,000 migrants, many of them destitute Venezuelans, have arrived, and many Chicagoans have expressed concerns that the city’s resources are being drained and have accused government officials of failing to communicate about the migrants’ cost and their fates.
At the same time, advocates for the migrants, especially community organizers in more vulnerable neighborhoods, have pushed back against attempts to pit two marginalized groups against each other. These groups have stepped up to support the new arrivals and in many cases have found allies in local faith leaders.
. . . .
Black said the majority of community residents want to find a way to both support the migrants and build support for a part of Chicago that has been historically underserved and underresourced. At the banquet at First Presbyterian, a speaker from Southside Together Organizing for Power, a community organizing group, talked about what it means to have Black and brown unity.
“It’s basically founded on this idea that there’s no scarcity,” Black said. “Not only is there enough for everybody — for the asylum-seekers, and the historically disenfranchised populations of South Side Chicago.”
He added, “We have so much more to gain from our unity than from the division which is being manufactured and orchestrated by interests that don’t want these communities to get the resources they need.”
Newcomer Fair at Langdon Elementary for families who have recently arrived from Texas and Arkansas via bus
I report that today Immigration Clinic student-attorneys Raisa Shah, Jennifer Juang-Korol, and I participated in the Newcomer Fair that the District of Columbia Public Schools sponsored at Langdon Elementary for families who have recently arrived from Texas and Arkansas via bus, primarily Venezuelans living in DC shelters. We shared immigration and social services information, GW swag, and met lots of cute kids. We were the only law school that participated. Please see the attached.
Professor Alberto Benítez & GW Immigration Clinic Student-Attorneys Raisa Shah & Jennifer Juang-Korol Staff The Table @ Newcomer Fair!
3) W&M Law Clinic Wins 27 Cases
Professor J. Nicole Medved reports on LinkedIn:
Over the holidays, the Immigration Clinic received approval notices in TWENTY-SEVEN applications that we’ve filed in the last calendar year. 🎉Among those 27 approvals were approvals for #asylum, #lawfulpermanentresidency, #DACA, #TPS, and #workpermits. It has been so exciting to see–and share–the fantastic news with our clients, students, and alumni who worked on these cases!
Clinic students prepare Temporary Protected Status and work permit applications. (Spring 2023)
4) NDPA Superstar Kim Williams Triumphs Over Garland DOJ’s “Nexus Nonsense” In 1st Cir
“Ricardo Jose Pineda-Maldonado (“Pineda-Maldonado”) is a native and citizen of El Salvador. He petitions for review of the decision by the Board of Immigration Appeals (“BIA”) that denied his application for asylum and claims for withholding of removal and protection under the Convention Against Torture (“CAT”). We grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this decision.”
[Please read the entire 31-page decision. It is a solid beat-down for the IJ and the BIA. Hats way off to Kim Williams and team! Listen to the oral argument here.]
Kim Williams, Esquire Rubin Pomerleau PC PHOTO: LinkedIn
5) HRF’s Robyn Barnard Calls Out Biden’s Threat To Trash Asylum
Robyn Barnard Associate Director of Refugee Advocacy Human Rights First PHOTO: Linkedin
Robyn writes on LinkedIn:
Have been thinking a lot about this statement & questioning how we got here. Anyone who works in this space knows just how complicated our laws & system are, the challenges global crises present, all compounded by recent attempts to totally destroy our immigration system. We know this is hard. However, the President has had at his service very smart ppl, experts, not to mention those in NGO space w decades of experience who have provided him reams of recommendation papers from before he was elected President, all wanting to help him to succeed at making the immigration system more efficient, more fair, but I’d guess most also came out of 4 yrs of Trump wanting to ensure we treat ppl w dignity & respect their basic human rights. If only he would listen.
How did the President go from vowing to “restore asylum” & “stop kids in cages” to essentially trying to out-Trump Trump? I wish we had a President who had the political courage to stand by immigrants, to stand in public & declare why detention, border walls, & summary deportations don’t work, & to invest in humane & smart solutions. The truly enraging thing about this is he will never win in his gross political posturing despite throwing migrants under the bus, or more aptly–literally to the cartels–the Right will never be satisfied & now he has put himself on record as in favor of Trump’s policies.
Shame. Shame on whoever had a hand in this hateful declaration and shame on the leader who put his name to it.
6) CEO Bill Penzy Likes & Appreciates Immigrants
Penzys Logo FROM: Facebook
Penzy, CEO of Penzy’s Spices in Wauwatosa, WI (my home town — graduated from Tosa East in ‘66) writes:
And despite all the Republican anger, it really is okay to say you like what immigrants do and have always done for this country. So much hard work. So much tasty food. What’s not to like? They need somewhere their hard work can amount to something, and we have plenty of space, and more work to do than we can do ourselves..
Immigrants give us the chance to be kind, decent humans. Let’s be kind, decent humans.
Thanks for caring enough to cook and caring about so much more.
Even in a time of “politicos’ bipartisan national fear-mongering, irresponsibility, and trashing of human rights,” courageous NDPA “freedom fighters” still stand up for human dignity and the right to asylum!
“Thrown Under the Bus” Asylum seekers & advocates again expendable to Dems? That’s a political “strategy” as wrong as it is treacherous! Creative Commons 2.0 non-commercial license
More Than 2 in 3 Voters Support Having an Asylum System and Hiring More Immigration Judges and Asylum Officers
January 22, 2024
By Rob Todaro and Lew Blank
Members of Congress are once again engrossed in debate related to immigration and border security, issues that have seen little progress or reform in more than two decades. The current debate particularly focuses on the application process for asylum — a form of legal immigration that protects people who have faced persecution in their home country on account of race, religion, nationality, and/or membership in a particular political or social group.
A new Data for Progress survey asked likely voters in the U.S. about various funding measures and proposed policy changes related to the U.S. immigration system.
First, we find at least 80% of voters think reforming the legal immigration system and securing the border with Mexico should be priorities for the U.S. government. Seventy-one percent of voters also say addressing the root causes of migration from South and Central America through diplomatic relations and humanitarian aid should be a priority.
A strong majority of voters (69%) also support the U.S. having a system for asylum seekers to legally migrate to the U.S. to seek protection. When asked about potential changes to the asylum application process that would allow immigration officials to deport asylum seekers without allowing them to see a judge, voters prefer giving asylum seekers a meaningful opportunity to make their case before a judge rather than a higher standard that could lead to expedited removal.
Along these lines, a majority of voters, including 69% of Democrats and 58% of Independents, don’t think the U.S. should make it harder for asylum seekers to meet with an immigration judge.
When asylum seekers come to the U.S. and fill out an asylum application, they must wait a minimum of six months before they are able to apply for work authorization. Some lawmakers have proposed eliminating this six-month waiting period so that asylum seekers can support themselves instead of relying on others for assistance. Sixty-two percent of voters, including a majority of Democrats (73%), Independents (58%), and Republicans (54%), support eliminating the six-month waiting period for asylum seekers to apply for work authorization.
Since October, President Biden has been lobbying Congress to pass a more than $105 billion spending package for national security purposes that includes additional military aid for Ukraine and Israel, as well as roughly $14 billion for various funding measures related to immigration and border security.
Voters support many of the key immigration-related measures in this proposal, such as enhancing security at ports of entry (82%), increasing personnel and capacity to process immigrants at the U.S.-Mexico border (75%), hiring new immigration judges (67%), and hiring new asylum officers (67%).
Lastly, 79% of voters, including 84% of Democrats, 78% of Independents, and 75% of Republicans, oppose separating migrant children from their parents or caregivers at the border.
These findings underscore that a strong majority of voters want the U.S. government to prioritize reforming the legal immigration system and securing the border, while also providing leniency to asylum seekers in regards to making their case before an immigration judge and being able to apply for work authorization.
Rob Todaro (@RobTodaro) is the communications director at Data for Progress.
Lew Blank (@LewBlank) is a communications strategist at Data for Progress.
Survey Methodology
From January 13 to 14, 2024, Data for Progress conducted a survey of 1,196 U.S. likely voters nationally using web panel respondents. The sample was weighted to be representative of likely voters by age, gender, education, race, geography, and voting history. The survey was conducted in English. The margin of error is ±3 percentage points.
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Contrary to the myths spread by the GOP and the “scared to stand up for values” approach of the Administration and some Dem politicos, making the asylum, Immigration Court, work authorization, and resettlement systems work should have been one of the highest national priorities for the Biden Administration and Congress.
And, contrary to their misguided beliefs, throwing asylum seekers and their supporters under the bus by giving in to GOP White Nationalist demands is highly unlikely to be a “plus” for Dems going into the 2024 elections.
On Monday, the Supreme Court lifted an injunction that had prevented the Border Patrol from cutting and removing concertina razor wire that the state of Texas had installed along a migrant crossing at the Rio Grande.
Federal officials view the razor wire as exceedingly dangerous because it could trap bodies in rapid flowing waters, leading to drownings. According to officials, last week three family members—a mother and her two children—died at the river in part because Texas guard and state troopers prevented the Border Patrol from reaching them.
The conservative Fifth Circuit had ordered the injunction put in place pending its final decision, keeping the razor wire intact. But a slim majority of the Supreme Court, with Chief Justice John Roberts and Justice Amy Coney Barrett joining the three liberals, overruled the panel.
At stake is more than whether the Border Patrol can safely do its job and help prevent deaths like those that occurred last week. Our entire federal system is premised upon the principle that the federal government has exclusive authority to enforce border policy. States like Texas should not have the right to run interference or act as if they are the border patrol.
And yet, four extremist justices—Alito, Thomas, Gorsuch and Kavanaugh—would have left the federal government powerless for now to remove a dangerous barrier illegally erected by Texas.
The latest battle over the border should be viewed within the broader question of what is the proper role of the states when it comes to immigration. And this isn’t the only battle that Texas Governor Greg Abbott and extremist Texas Attorney General Ken Paxton have picked to try and claim more of that power for the states.
Today, I’ll discuss how the Supreme Court came to review this case about the cutting and removal of razor wire at the border. Then I’ll zoom out so we can see how this fits into a larger challenge to federal authority over immigration.
Subscribed
Razor wire and the Texas federal courts
When Texas first erected razor wire at the river—the kind designed to catch clothing and tear flesh—it was roundly condemned by human rights organizations, and legal scholars quickly pointed out that Texas was acting extrajudicially. After all, at the border, it is the federal government that oversees enforcement, including what kinds of barriers to erect and how to treat and handle migrants. Many of the border crossings are by asylum seekers, and they are therefore there legally in accordance with international law.
Allowing Texas to insert itself as a state actor would upend all traditional notions of federalism and the limit of states’ rights when it comes to questions of homeland security. But a federal district judge and later the Fifth Circuit didn’t see it that way. On December 19, 2023, a panel in New Orleans temporarily barred Border Patrol agents from cutting or removing the wire in the area around Eagle Pass, with an exception for “medical emergencies.” This was a shocking opinion given its apparent disregard of settled law establishing exclusive federal power over immigration policies and execution.
U.S. Solicitor General Elizabeth Prelogar argued that the injunction barred border agents from doing their jobs, specifically, from having clear access to the U.S.-Mexico border and “reaching migrants who have already entered U.S. territory.” Moreover, the exception for medical emergencies was insufficient because it takes time to cut through the wire, and while the clock is ticking there is a “very real” risk of serious injury or death for those trapped.
Texas claimed that federal border agents were not actually apprehending and processing migrants even after they passed through the gaps in the wire that had been cut by the feds some twenty times. The state had property rights of its own, Texas argued, as well as an interest in stopping “deadly fentanyl,” human trafficking,” and to “minimize the risks to people, both U.S. citizens and migrants, of drowning while making perilous journeys to and through illegal points of entry.” (The fentanyl argument is a red herring; the vast percentage of fentanyl entering the country arrives not via migrants crossing the river at the border, which would be a decidedly foolish way to try and transport drugs, but through smuggling by U.S. citizens and legal residents.)
In January, Texas upped the stakes by moving to block federal agents entirely from the area where they normally launch patrol boats and conduct mobile surveillance. This contributed to the three family members’ deaths because fedeal agents had no clear access to the river. In fact, they couldn’t even determine whether a “medical emergency” was occurring, as Prelogar pointed out.
Prelogar won her appeal for the U.S. government and got the injunction lifted by the High Court, but by only a single vote.
The State of Texas keeps trying to enforce national border policy
Governor Abbott has a multi-billion dollar program in place called “Operation Lone Star” that includes massive allocation of personnel to the border, the erecting of illegal and often dangerous barriers, and most recently a new law that authorizes state and local law enforcement to arrest migrants crossing from Mexico.
This has set up yet another showdown with the federal government. That law goes into effect in March, and it is seen as a test case to challenge a 2012 case, Arizona v. United States, that narrowly left the power to determine immigration policy to the federal government, not the states.
Texas and Louisiana already lost a case where they had challenged the Biden administration’s immigration guidelines and its deportation policies. Those guidelines had been halted nationwide by a federal judge in Texas, who ruled they violated federal law. In that case, by a 5-4 decision, the Supreme Court initially and rather alarmingly had allowed the injunction to remain in place. But ultimately it ruled 8-1 in June of 2023 against Texas and Louisiana, with only Justice Alito in dissent, reaffirming the federal government’s central role on matters of immigration policy.
Where things go from here
Governor Abbott and state Attorney General Paxton remain keen to find where the new conservative majority on SCOTUS might rule their way. So they keep pushing and testing the limits. In the razor wire case, while there’s no way to know why four extremist justices dissented from the lifting of the injunction—and it conceivably could have been because the full matter will be taken up shortly anyway by the Fifth Circuit in February—the impression it has left is unmistakable.
As CNN legal analyst and University of Texas law professor Steve Vladeck observed, “Whatever one thinks of current immigration policy, it ought not to be that controversial that states cannot prevent the federal government from enforcing federal law—lest we set the stage for Democratic-led states to similarly attempt to frustrate the enforcement of federal policies by Republican presidents.” He added, “That four justices would still have left the lower-court injunction in place will be taken, rightly or wrongly, as a sign that some of those longstanding principles of constitutional federalism might be in a degree of flux.”
In response to the loss before the Supreme Court, a spokesman for Abbott put out a statement claiming that the “absence of razor wire and other deterrence strategies encourages migrants to make unsafe and illegal crossings between ports of entry.” He added that the governor “will continue fighting to defend Texas’ property and its constitutional authority to secure the border.”
But this assertion about unsafe crossings was disputed by federal officials, underscoring the need for a single government policy. Said a White House spokesperson, “Enforcement of immigration law is a federal responsibility. Rather than helping to reduce irregular migration, the State of Texas has only made it harder for frontline personnel to do their jobs and to apply consequences under the law. We can enforce our laws and administer them safely, humanely, and in an orderly way.”
This was for now only a battle over a temporary injunction. The Fifth Circuit will next consider the full case in February, incluing whether to lift the injunction permanently. But it will do so with an understanding that five SCOTUS justices view Texas as unlikely to succeed on the merits. An appeal back up to the Supreme Court is likely, no matter which side prevails at the appellate level.
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Texas’s legal argument was frivolous. The vote at the Supremes should have been 9-0. That it wasn’t should make us all fear for our country’s future as a nation that operates under the rule of law!
Jefferson Davis Racist, traitor, insurrectionist President of Confederate Stares of America Public RealmJohn C.Calhoun White Supremacist, racist, nullifier U.S. Vice President Public Realm
Jeff Davis and John C. Calhoun would be proud of the dissenters — although, ironically, those two “nullifiers” wouldn’t even recognize one of the dissenters, Justice Thomas, as a “person” with any rights at all, let alone the ability to sit on our highest Federal Court! Remarkably, despite claiming to be a student of history, Thomas was unable to connect the dots between Calhoun’s and Davis’s rebellious, racist, dehumanization of African Americans and Greg Abbot’s rebellious, racist, dehumanization of legal asylum seekers of color!
The Federal Government’s authority to stop State Governments seeking to nullify and deny Federal authority matters! That’s particularly true when those acts of nullification are based on racial animus! That today’s righty-dominated Supremes won’t unite behind this straightforward principle of Federalism is a blow to equal protection under the Constitution!
As of December 31, 2023, only the first quarter of FY 2024, the Biden Administration had already initiated 696,400 cases at EOIR. That’s more than the highest FULL FY (12 mo.) of the Trump Administration, 2019, in which 694,771 cases were started.
Moreover, in FY 2023, Biden filed an astounding 1,485,769 cases, more than twice the number that Trump did in FY 2019. Biden’s numbers in FY 2023 topped Trump’s other three years (278,218; 356,034; 216,589) BY MULTIPLES. In fact, Biden instituted approximately as many Immigration Court cases in FY 2023 as Trump did in his entire FOUR YEARS and is on a path to greatly exceed his 2023 total in FY 2024!
So the Trump/GOP blather about Biden not enforcing immigration laws is complete BS!
Biden’s muscular immigration enforcement efforts give lie to the GOP’s “open borders” claims, a point seldom made by the “mainstream media.” But, such over the top enforcement is NOT necessarily good news for America.
Even with more Immigration Judges under Biden — going on 700 — the annual decision-making capacity at EOIR is somewhere between 350,000 to 550,000. So, the Immigration Courts will not come close to keeping up with the flow of incoming cases, let alone reducing the backlog that has now mushroomed to more than 3,000,000.
There is no apparent plan for controlling the EOIR backlog and improving the much-criticized quality of decisions, which disproportionately harms legal asylum seekers of color while often adding to the backlog when rejected on review. That makes the Administration’s institution of new cases on a level guaranteed to create additional backlog appear irresponsible.
Moreover, it hasn’t helped that Attorney General Garland ignored pleas from most experts to make EOIR reform one of his highest, ideally his highest, national priority. Nor has Congress paid much attention to the glaring, chronic dysfunction at EOIR, despite pending legislation to create an Article I Immigration Court!
Biden is following in the footsteps of his Dem predecessors Obama and Clinton. In their initial election campaigns they “played to their base” by criticizing harsh GOP enforcement policies and extolling the benefits of immigration. Once in office, however, they became convinced that their credibility, and perhaps manhood, depended on out-enforcing and “out-crueling” their GOP predecessors.
Of course, this naive approach never produces the apparently desired result: That the GOP will acknowledge that Dems are serious about enforcement and strike the long needed “grand bargain” on immigration reform.
Predictably, that always backfires. The GOP just keeps repeating their “open borders” big lies, and the mainstream media provide little, if any, critical analysis or pushback. As long as kids aren’t being proudly exhibited in cages, the “mainstreams” quickly lose interest in the suffering, dehumanization, and death piling up on both sides of the border and in the “New American Gulag” as a result of the disastrously (and predictably) failed “enforcement-only” approach.
What Biden’s effort to “out-Trump Trump” REALLY shows is that more enforcement and attempting to use anti-immigrant legal decisions and a hopelessly backlogged adjudication system that keeps legal asylum seekers waiting indefinitely with a significant chance of wrongful denial if and when they are reached as a “deterrent,” doesn’t work, and in fact never has worked!
What’s needed is actually painfully obvious: A balanced approach that combines a properly generous asylum adjudication system, more avenues for legal immigration (both permanent and temporary), and an independent, functioning, expert, due-process oriented Immigration Court with reasonable, targeted, humane enforcement. That’s a message that both parties and the mainstream media are ignoring, to our national detriment. Too many Americans seem to have forgotten that in the process of dehumanizing and demonizing “the other” we degrade ourselves.
Or, put another way, we can diminish ourselves as a nation, but it won’t stop human migration!
MIAMI (AP) — Eight months after crossing the Rio Grande into the United States, a couple in their 20s sat in an immigration court in Miami with their three young children. Through an interpreter, they asked a judge to give them more time to find an attorney to file for asylum and not be deported back to Honduras, where gangs threatened them.
Judge Christina Martyak agreed to a three-month extension, referred Aarón Rodriguéz and Cindy Baneza to free legal aid provided by the Catholic Archdiocese of Miami in the same courthouse — and their case remains one of the unprecedented 3 million currently pending in immigration courts around the United States.
Fueled by record-breaking increases in migrants who seek asylum after being apprehended for crossing the border illegally, the court backlog has grown by more than 1 million over the last fiscal year and it’s now triple what it was in 2019, according to government data compiled by Syracuse University’s Transactional Records Access Clearinghouse.
Judges, attorneys and migrant advocates worry that’s rendering an already strained system unworkable, as it often takes several years to grant asylum-seekers a new stable life and to deport those with no right to remain in the country.
. . . .
Experts like retired judge Paul Schmidt, who also served as government immigration counsel while the last major reform was enacted nearly forty years ago, say the broken system can only be fixed with major policy changes. An example would be allowing most asylum cases to be solved administratively or through streamlined processes instead of litigated in courts.
“The situation has gotten progressively worse since the Obama administration, when it really started getting out of hand,” said Schmidt, who in 2016, his last year on the bench, was scheduling cases seven years out.
. . . .
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At the above link, read Giovanna’s excellent full article, based on interviews with those who actually are involved in trying to make this dysfunctional system function. Thanks, Giovanna, for shedding some light on the real, potentially solvable, “human rights crisis” enveloping and threatening the entire U.S. legal system. Contrary to “popular blather,” fulfilling our legal obligations to refugees is not primarily a “law enforcement” issue and won’t be solved by more border militarization and violations of individual rights of asylum seekers and other migrants!
There are lots of ways to start fixing this system!Gosh knows, most of them have been covered here on Courtside, sometimes several times, and they are all publicly available on the internet with just a few clicks. See, e.g.,
The “debate” on the Hill defines “legislative malpractice!” The voices of legal integrity, experience, and practicality aren’t being heard! Also, lots of great ideas from experts on fixing EOIR are stuffed in the “Biden Transition Team” files squirreled away in some basement cubbyhole at Garland’s DOJ.
But most politicos aren’t interested in listening to the experts, nor do they seem motivated to understand the real human problems at the border, in the broken Immigration Courts, and how many of the things they are considering will make the situation worse while empowering smugglers and cartels! Those are real human corpses piling up along the border, carried out of immigration prisons, being abused in Mexico, and floating in the river — mostly due to the brain-dead “enforcement only” policies now being given an overdose of steroids by congressional negotiators.
So, things just keep deteriorating. Many in the backlog who deserve a chance at a permanent place in our society, and the ability to contribute to their full abilities and potential, remain in limbo! That’s bad for them and for us as a society!
Reading* the news, it appears that many are freaking out about the “crisis” along the U.S. / Mexico border.
In fact, there is no crisis. Yes, there are logistical problems around feeding and housing migrants, and legal problems around sorting out their legal claims in immigration court.
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But the numbers are the numbers: “[T]he past decade has seen unusually slow growth in immigration. In fact, the period from 2012 to 2022 saw slower growth in the immigrant share of the population than the 2000s, 1990s, 1980s and 1970s. You have to go all the way back to the 1960s, when the immigrant population actually shrank, to find a lower growth rate.” – David J. Bier, Oct. 3, 2023
America is graying. We need more immigrants, not fewer, and the younger the better. “With the national unemployment rate reaching a historic low of 3.4% in 2023—and states like Massachusetts (2.5%) and Pennsylvania (3.5%) reaching record lows—employers and elected officials have been desperate to find new workers.” – Andrew Kreighbaum, Dec. 29, 2023.
But under current law, it can take many months, if ever, for migrants to obtain work permits. Meanwhile, they are forced to work for cash, under the table, exposed to horrible working conditions, sub-market wages and the continual threat of deportation. Once they have work permits, however, they gain bargaining power.
Hein de Haas, professor of sociology at the University of Amsterdam, and the author of How Migration Really Works, says: “Fundamental choices have to be made. For example, do we want to live in a society in which more and more work – transport, construction, cleaning, care of elderly people and children, food provision – is outsourced to a new class of servants made up mainly of migrant workers? Do we want a large agricultural sector that partly relies on subsidies and is dependent on migrants for the necessary labour? The present reality shows that we cannot divorce debates about immigration from broader debates about inequality, labour, social justice and, most importantly, the kind of society we want to live in.”
Many years ago I was “on the bus” for a border journalism junket. With me was Wall Street Journal editorial writer Jason Riley. His 2008 book, Let Them In: The Case for Open Borders, is still fresh as a daisy.
Look I get it: I was lucky enough to grow up bilingual, enjoy the benefits of “higher ed,” and travel a lot, so I am not afraid of immigrants. Many Americans aren’t so lucky. Still, unless we are OK with China and India eating our economic lunch, we need to face facts and let in more immigrants, stat.
* Pro Tip: Never watch television.
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There’s plenty of empirical support for Dan’s view that we are largely creating a “crisis” while missing a golden opportunity. Indeed, while the U.S. is the world’s richest and most powerful nation, many smaller and poorer countries are able to resettle more asylum seekers, refugees, and other types of forced migrants, by both absolute numbers and proportion. See, e.g.,https://www.nrc.no/shorthand/fr/a-few-countries-take-responsibility-for-most-of-the-worlds-refugees/index.html.
What we appear to have is more of a politically-driven crisis of lack of confidence, political will, and basic competence to manage a humanitarian situation that is predictable, largely inevitable, and an opportunity to harness the human capital of migration — the same energy that actually built our nation and made it great. We’ve wasted huge amounts of money, resources, and time on cruel, failed, counterproductive enforcement gimmicks, while underfunding and failing to creatively update adjudication and resettlement functions.
Sadly and disturbingly, politicos of both parties and the Administration are basically pledging and scheming to ignore the advice of experts and creative problem-solvers and to do an even worse job next year and into the future. They will certainly leave a scurrilous trail of fraud, waste, abuse, cruelty, futility, failure, death, and missed oportunities in their wake — if we let them get away with it!
Austin Kocher, Ph.D. Research Assistant Professor TRAC-Syracuse PHOTO: Syracuse U.
Dan’s essay also reminds me of another recent Substack essay from immigration expert and statistical guru, Professor Austin Kocher. Austin’s theory is that backlogs in and of themselves might not be as bad as we often portray them — particularly in light of the alternatives and the intentional failures to make obvious reforms to improve the “robustness” and fairness of our immigraton system. Seehttps://austinkocher.substack.com/p/3-million-cases-are-now-pending-in.
Here’s the core of what Austin says:
First, it is worth questioning our basic assumptions about whether the “backlog”, as it is somewhat sensationally referred to, is actually a bad thing. Unlike the Obama administration, when the rapid growth of court cases was more attributable to people who lived in the U.S. for a long time getting caught up in interior enforcement, the recent growth is almost entirely due to the arrival of asylum seekers into the country. If you believe that asylum seekers deserve an opportunity to have their cases heard, then these numbers might be a positive sign. More people will have at least a nominal opportunity to apply for asylum instead of being turned away outright at the border.
Second, it remains absurd to me that the current practice in the U.S. is to force recently arrived asylum seekers into court in front of an immigration judge rather than to direct their cases toward asylum officers at USCIS who are trained for precisely this purpose. Immigration courts were designed to adjudicate cases of non-citizens who are suspected of violating U.S. immigration laws. The courts are adversarial environments that, as far as I can tell, require far more taxpayer resources and migrant resources than non-adversarial asylum interviews do. The fact that there are 3 million cases in court is, to me, an indictment of a system that treats humanitarian crises through the lens of quasi-criminalization.
Third, since no real change is likely forthcoming, I think we should rethink our sensationalization of the backlog number and simply accept the growing immigration court backlog much like we accept the U.S. national debt ticker in New York City.2 It’s just going to keep going up unless something absolutely fundamental changes about the world we live in. Get over it. This is how things work now. We need to end the delusional thinking that reforms—even much-needed reforms, such as the creation of an independent court system—are going to “solve” the backlog. The U.S. immigration system either needs radically rethought or we need to simply accept that the number of pending cases will reach 4 million, 5 million, or 6 million cases in the next few years.
Lastly, if we really want to solve the backlog, the easiest way to resolve the backlog is for Congress to give everyone with an NTA (i.e., everyone with a pending court case) and who meets certain minimal criteria a special visa that regularizes their status and puts them on a path to citizenship just like other lawful permanent residents. Yes, yes—I know that not everyone will like that solution for political reasons, but at least admit that you don’t like it for political reasons, not because it wouldn’t solve the backlog (because it would). After all, the US Census Bureau is already forecasting absolute population decline in the US within our lifetimes. Three million new citizens now wouldn’t solve that problem, but it might not hurt in the long run.
I was struck by his second point. One of the positive regulatory changes made by the Biden Administration was to confer authority on USCIS Asylum Officers to grant asylum immediately, at the border or in reception centers, rather than referring all arriving asylum seekers who pass credible fear to the Immigration Courts. Nevertheless, as I among many pointed out, the Administration had neither the personnel nor the training in place to make this change effective.
I also argued that without a new BIA of expert Appellate Judges and exceptionally-well-qualified asylum expert Immigration Judges assigned to key Immigration Courts to provide dynamic leadership, de facto supervision, and a series of far better positive precedents guiding adjudicators to grant asylum in many repetitive situations, this positive change was doomed to failure.
Sure enough, the Administration botched the implementation — running inept, timid, and minute “pilot programs” that could only be termed “sad jokes.” To make matters worse, when recently faced with a humanitarian situation at the border, where a “surge” of qualified Asylum Officers working with NGOs to screen arrivals could have made a huge difference, the Administration inexplicably “suspended” this most useful part of their regulations. Meanwhile, they opted to keep more problematic provisions in effect.
To compound the problem, nativist GOP State AGs mounted frivolous court challenges to the expanded role of Asylum Officers. Stripped of its legal gobbledygook, they essentially and absurdly argued that the Administration lacked authority to empower statutory Asylum Officers to grant asylum.
Dan’s essay found favor with well-known expert Careen Shannon:
This post about the opportunity presented by migrants who want to live in the United States is a sensible message with which to end the year. Kudos to Dan Kowalski for stating what should be obvious but apparently cannot be repeated often enough.
Turning this group loose on asylum seekers is an act of gross legal, judicial, and political malpractice by the Biden Administration and Merrick Garland! https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
“Here, the IJ and BIA found, and the government does not dispute, that Espinoza-Ochoa credibly testified that he experienced harm and threats of harm in Guatemala that “constitute[d] persecution.” But the agency concluded that Espinoza-Ochoa was still ineligible for asylum for two reasons. First, it held that Espinoza-Ochoa had failed to identify a valid PSG because the social group he delineated, “land-owning farmer, who was persecuted for simply holding [the] position of farmer and owning a farm, by both the police and gangs in concert,” was impermissibly circular. Second, the IJ and BIA each held that, regardless of whether his asserted PSG was valid, the harm Espinoza-Ochoa experienced was “generalized criminal activity” and therefore was not on account of his social group. We conclude that the BIA committed legal error in both its PSG and nexus analyses. We first explain why Espinoza-Ochoa’s PSG was not circular and then evaluate whether his PSG was “at least one central reason” for the harm he suffered. Ultimately, we remand to the agency to reconsider both issues consistent with this opinion. … For all these reasons, we agree with Espinoza-Ochoa that legal error infected both the PSG and nexus analyses below. Accordingly, we GRANT the petition, VACATE the decision below, and REMAND for further proceedings consistent with this opinion.”
[Hats way off to Randy Olen!]
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You’ve been reading about this damaging, deadly legal travesty going on during Garland’s watch:
How outrageous, illegal, and “anti-historical” are the Garland BIA’s antics? The classic example of Marxist-Leninist revolutionary persecutions involve targeting property owners, particularly landowners. Indeed, in an earlier time, the BIA acknowledged that “landowners” were a PSG. See, e.g., Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).
But, now in intellectually dishonest decisions, the BIA pretzels itself, ignores precedent, and tortures history in scurrilous attempts to deny obvious protection. These bad decisions, anti-asylum bias, and deficient scholarship infect the entire system.
It makes cases like this — which couldand should have easily been granted in a competent system shortly after the respondent’s arrival in 2016 — hang around for seven years, waste resources, and still be on the docket.
This is a highly — perhaps intentionally — unrecognized reason why the U.S. asylum asylum system is failing today. It’s also a continuing indictment of the deficient performance of Merrick Garland as Attorney General.
Obviously, these deadly, festering problems infecting the entire U.S. justice system are NOT going to be solved by taking more extreme enforcement actions against those whose quest for fair and correct asylum determinations are now being systematically stymied and mishandled by the incompetent actions of the USG, starting with the DOJ!
AG Merrick Garland’s methods for treating allies and friends of America when they apply for asylum in his “courts” are highly questionable and demonstratively counterproductive. Did the DC Circuit use “trial by ordeal” during Garland’s tenure? If not, why is it OK for EOIR?
HELPING AN AFGHAN INCARCERATED IN THE UNITED STATES EARN ASYLUM
Mohammad[1] is an Afghan citizen of the Hazara ethnic minority and Shi’a religion, who fled Afghanistan after repeated threats to his life following the Taliban’s consolidation of power in 2021. He escaped by traveling through the treacherous and only available route to the United States to seek asylum.
In Afghanistan, Mohammad was a professor with a history of advocacy for women’s rights and for victims of the Taliban and other extremist groups. Mohammad’s wife, who worked for a U.S. government-funded nonprofit organization in Afghanistan. Due to her work, she has an initially approved Special Immigrant Visa application that also gives Mohammad a path to permanent residence in the United States.
Despite this, Mohammad was criminally prosecuted for entering the United States to seek asylum. He spent 7 months in prison before he was transferred to U.S. Immigration and Customs Enforcement (ICE) custody, where he could only then begin to pursue his asylum claim. ICE repeatedly denied Mohammad’s release into the community despite his having permanent resident family in the United States ready to sponsor and receive him.
Mohammad was forced to undergo his asylum case without an attorney while detained in immigration jail. After being held for one year, an immigration judge denied Mohammad’s asylum claims despite extensive evidence that he survived multiple attacks on his life by the Taliban and ISIS-K, and that the Taliban continue to search for him. The judge also dismissed irrefutable evidence of the significant risk he would face due to his ethnic and religious minority status if forced to return to Afghanistan, and the escalating violence imposed by the Taliban.
Mohammad’s story was detailed by the Associated Press. The article provided “a rare look inside an opaque and overwhelmed immigration court system where hearings are often closed, transcripts are not available to the public and judges are under pressure to move quickly with ample discretion” and highlights Human Rights First’s efforts to find justice for Mohammad.
The United States should not deport Afghan allies—especially not those like Mohammad, who have courageously fought for human rights in Afghanistan, are members of ethnic and religious minority groups, and have family eligible for SIV status—all factors that would lead to certain risk of persecution and torture at the hands of the Taliban if forced to return.
We argued that Mohammad was subjected to unreasonably prolonged incarceration. He deserved to live freely in the United States and be reunited with his family while he sought asylum.
As Human Rights First acted on Mohammad’s case, we updated this blog with details of that effort. Please follow this link for more on Mohammad’s story.
December 22, 2023
Mohammad’s journey has been long – he traveled from Afghanistan to South America, through the Darien Gap to the border, to ICE detention, and more – but it has come to a successful conclusion.
Our attorneys were successful in stopping the Department of Homeland Security from deporting Mohammad back to Afghanistan. We filed a Motion to Reopen Mohammad’s case and then filed a new asylum application. We made multiple parole requests to get Mohammad released. We filed for Temporary Protected Status for Mohammad, arguing that it is the U.S. government’s long-standing policy to release any individual who is prima facie eligible for TPS. We contacted government officials and advocated for Mohammad’s release for his sake and for his family — two small children and his wife, whose application through the Special Immigrant Visa program has long been approved. Our request to have his TPS application expedited was denied.
With our partners at the law firm of Akin LLP, we prepared Mohammad for his December 13 Individual hearing before a new judge in Dallas Immigration Court. We gathered additional evidence, spoke with eyewitnesses, consulted with an expert, and filed all necessary filings.
Finally, on December 20, 2023, 602 days after he first arrived in the United States, Mohammad was granted asylum. The immigration judge found that Mohammad had suffered persecution due to his political opinions and ethnicity.
Mohammad was released from detention on December 22, 2023, and will soon reunite with his niece in Michigan. Human Rights First and Akin LLP will now work to reunite Mohammad with his wife and children and help him to pursue a dignified life in the relative safety of the United States.
December 12, 2023
Mohammad is scheduled for an Individual Hearing on December 13. We are very concerned about the possibility of his facing more detention even though he has an incredibly strong case with multiple claims to asylum.
Mohammad is an ethnic Hazara Shia Muslim who was an outspoken law professor and advocate on behalf of victims of Taliban terrorist attacks. His wife was employed by a U.S.-funded organization, and was granted COM approval for her Special Immigrant Visa. Mohammad’s two brothers converted to Christianity, a crime punishable by death; Mohammad fears retribution by the Taliban due to their close family relationship and because they lived in the same building unit. In recent months, the Taliban have visited their home in Afghanistan multiple times.
We continue to believe and will argue that Mohammad should have never been detained in the first place.
December 2, 2023
On December 1, USCIS denied Human Rights First’s request to expedite Mohammad’s application for Temporary Protected Status (TPS). At the time of our request, Mohammad had been in detention for over 550 days.
We argued for expedited processing of his TPS application based on urgent humanitarian reasons — he survived an ISIS-K bombing and an attempted gunpoint abduction by the Taliban — and the national interest of the United States.
We anticipated that the filing of Mohammad’s TPS application would be sufficient for DHS to release him, as he clearly meets the prima facie eligibility requirement. It is a long-standing U.S. government policy that “once granted TPS, an individual cannot be detained by DHS based on their immigration status in the United States.”
Unfortunately, our parole requests have repeatedly been denied, even after the submission of proof of TPS filing and of Mohammad’s wife’s COM approval for her Special Immigrant Visa (SIV).
September 25, 2023
Following the immigration judge’s erroneous denial of Mohammad’s asylum claim, he was connected with a pro bono attorney at Human Rights First to timely appeal that decision. Although ICE argued that Mohammad waived his right to appeal during the final immigration court hearing, experts, including former immigration judges, have reviewed the court transcript and agree with Human Rights First that Mohammad did not receive a fair hearing or knowingly waive his right to appeal. Unfortunately, the Board of Immigration Appeals summarily dismissed Mohammad’s appeal due to that purported waiver.
Human Rights First then filed a motion to reopen his removal proceedings directly with the Immigration Court. With the assistance of Akin Gump LLP, Mohammad also filed a petition for review of the BIA’s decision.[2]
On September 21, Mohammad’s motion to reopen before the immigration court was granted, despite the government’s continued opposition, winning him the opportunity to present his evidence for asylum again but this time with the assistance of an attorney and a new judge. That same day, the Department of Homeland Security (DHS) announced that the Secretary has redesignated Afghanistan for Temporary Protected Status, which will provide an additional path to temporary protection from deportation for Mohammad. Human Rights First will continue to defend Mohammad’s case until he secures protection for himself and his family.
[1] full name withheld due to security concerns for his family
[2] this petition will be voluntarily dismissed as Mohammad’s motion to reopen removal proceedings was separately granted by an immigration judge
And, “bingo,” Garland and his inept minions at EOIR and DOJ furnish a great example of a backlog-building, due-process denying, expertise-lacking, dysfunctional, illogical“court” system that is damaging humanity while undermining U.S. justice and democracy in so many ways!
The full scope of USG failure is on display in this saga:
Prosecutorial abuse;
Coercive detention;
Denial of counsel;
Bad judging at both trial and appellate levels of EOIR;
Lack of asylum expertise;
Absence of positive precedents granting asylum in recurring situations like Afghanistan;
Mistreating those we eventually will be welcoming and relying upon in our society;
Generating unnecessary litigation;
Promoting arbitrary and inconsistent results.
The HRF report also notes the supportive role of former Immigration Judges in obtaining justice for Mohammad.
As renowned asylum expert Eleanor Acer, Refugee Protection Director at HRF, said of this case on X:
So relieved that he was finally granted asylum, but I continue to be appalled that people seeking asylum in the US often face so many obstacles & injustices.Senators & Biden officials should focus on staffing & steps for accurate & just decisions, not more barriers & cruelty.
Yup! Our leaders “just don’t get it” when it comes to human rights, immigration, and the reality of forced migration. The costs to humanity of their failures is incalculable!
Institutionalizing “accurate and just decisions” is something that has largely eluded Garland — despite his long service as an Article III Judge and his near-elevation to the Supremes. Many of us, obviously incorrectly, believed that with his judicial background and reputation — and few other real priorities on his plate given his recusal from the Trump prosecutions — Garland would be the AG who would finally fix EOIR and push the transition to Article I status. Instead, he has allowed EOIR to drift and deteriorate on his watch, with destruction of human lives and the undermining of justice in America as consequences!
All the punitive measures Congress is discussing will make things worse! The legislators and the politicos “running” this dysfunction are completely detatched from reality! (Reportedly, Secretary Blinken and other Administration politicos are now in Mexico looking for more “ guaranteed to to fail yet cause more human misery” ways to “enforce their way” out of a humanitarian crisis that is not at core a law enforcement problem at all!)
EOIR and the BIA require senior leaders who are practical experts in asylum law, who put due process and fundamental fairness first, and who are proven problem solvers — not part of the problem as is now the case. Unless and until we get an AG and senior DOJ leaders who recognize both the problems and the (now unrealized) opportunities at EOIR, American justice and democracy will continue to suffer! And human lives will continue to hang in the balance!
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