Tag: BIA

☹️ WORLD REFUGEE DAY 2023  (JUNE 20) IN AMERICA: More Asylum Seekers Denied Access; Flubbed Resettlement; Kids Face Court Alone; NGOs Left To Pick Up Slack!

 

Starving ChildrenKids are among the many groups of refugees and asylum seekers ill-served by the Biden Administration’s policies and performance. “World Refugee Day 2023” is a rather grim reminder of America’s failure to live up to its obligations to the world’s most vulnerable!
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ACCESS DENIED

Hamed Aleaziz reports for the LA Times:

https://apple.news/AnR6bRRRoSxm4nMAHyNOLXQ

A new Biden administration policy has dramatically lowered the percentage of migrants at the southern border who enter the United States and are allowed to apply for asylum, according to numbers revealed in legal documents obtained by The Times. Without these new limits to asylum, border crossings could overwhelm local towns and resources, a Department of Homeland Security official warned a federal court in a filing this month.

The new asylum policy is the centerpiece of the Biden administration’s border efforts. 

Under the new rules, people who cross through a third country on the way to the U.S. and fail to seek protections there are presumed ineligible for asylum. Only people who enter the U.S. without authorization are subject to this new restriction.

The number of single-adult migrants who are able to pass initial screenings at the border has dropped from 83% to 46% under the new policy, the Biden administration said in the court filing. The 83% rate refers to initial asylum screenings between 2014 and 2019; the new data cover the period from May 12, the first full day the new policy was in place, through June 13.

Since the expiration of Title 42 rules that allowed border agents to quickly turn back migrants at the border without offering them access to asylum, the administration has pointed to a drop in border crossings as proof that its policies are working.

But immigrant advocates and legal groups have blasted Biden’s new asylum policy, arguing that it is a repurposed version of a Trump-era effort that made people in similar circumstances ineligible for asylum. (Under Biden’s policy, certain migrants can overcome the presumption that they are ineligible for asylum.) The ACLU and other groups have sought to block the rule in federal court in San Francisco, in front of the same judge who stopped the Trump policy years ago.

The new filing provides the first look at how the Biden administration’s asylum policy is affecting migrants who have ignored the government’s warnings not to cross the border. 

“This newly released data confirms that the new asylum restrictions are as harsh as advocates warned,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council. “The data contradicts conservative attacks on the rule for being too lenient. Less than 1 in 10 people subject to the rule have been able to rebut its presumption against asylum eligibility.”

. . . .

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Read Hamed’s full story at the link.

None of the statistics cited in the article actually give a full picture, since the don’t account for 1) families, 2) children, and 3) those processed at ports of entry using the highly controversial “CBP One App.” Nor do they give insights into what happens to those denied access to the asylum adjudication system.

As Aaron Reichlin-Melnick points out, increased rejections of legal access are exactly what experts, including our Round Table of Former Immigration Judges, predicted in vigorously opposing the Administration’s ill-advised regulatory changes. See, e.g., https://immigrationcourtside.com/2023/03/27/⚔️🛡-round-table-joins-chorus-of-human-rights-experts-slamming-biden-administrations-abominable-death-to-asylum-seekers-☠️-proposed/.

In the article, DHS official Blas Nuñez-Neto babbles on about the wonders of mindless extralegal enforcement as a “deterrent.” In a classic example of disingenuous misdirection, Nuñez-Neto appears to suggest that “success” in implementing asylum laws should be measured in terms of the number of individuals denied access or discouraged from applying. 

Actually, success in implementing asylum laws should be measured solely by whether 1) all asylum applicants regardless of status or where they apply are treated fairly and humanely; and 2) those eligible for asylum under a properly generous, protection-focused application of asylum laws are actually granted asylum in a timely manner complying with due process. By those measures, there is zero (O) evidence that the Biden Administration’s approach is “successful.” 

Moreover, Nuñez-Neto’s comments and much of the media focus skirt the real issue here. Border apprehensions have decreased because asylum seekers in Northern Mexico appear to be “waiting to see” if the “CBP One App System” at ports of entry actually offers them a fair, viable, orderly way of applying for asylum. In other words, does the Biden Administration’s legal asylum processing system have “street credibility?” 

So far, CBP One and DHS appear determined to “flunk” that test; the App continues to be plagued with technical and access glitches, and the numbers of appointments available is grossly inadequate to meet the well-known and largely predictable demand.

If the border lurches out of control in the future, it probably will be not the fault of legal asylum seekers. Rather, it will be caused by poorly-conceived and legally questionable Biden “deterrence policies” and the restrictionist politicians (in both parties, but primarily the GOP) who are “egging them on.”  That is, an Administration unable to distinguish its friends from its enemies and unwilling to develop a comprehensive strategy for dealing with the inevitably of refugee flows by creatively and positively using and “leveraging” the ample (if imperfect) existing tools under our legal system. 

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ADMINISTRATION’S FLUBBED RESETTLEMENT (NON) EFFORT EMPOWERS GOP WHITE NATIONALISTS, VEXES PROGRESSIVE DEMS

Nick Miroff & Joanna Slater report for WashPost:

NEW YORK — On the fourth day of his new life in New York City, Antony Reyes set out from the opulent lobby of Manhattan’s Roosevelt Hotelwith an empty wallet and the address of a juice bar on Broadway possibly offering some work.

Reyes had been staying at the crowded hotel-turned-emergency service center, hunting odd jobs during the day along with other newly arrived Venezuelans who navigated the streets of midtown using “Las Pantallas”— the Screens (a.k.a. Times Square) as a landmark.

“I just want to work,” Reyes said in Spanish. “I didn’t come here to be a burden on anyone.”

Reyes, 23, was among the tens of thousands of migrants who rushed to cross the U.S.-Mexico border ahead of May 11, when the Biden administration lifted the pandemic policy known as Title 42. The largest group were Venezuelans, who have been arriving to the United States in record numbers since 2021.

Unlike previous waves of Latin American immigrants who gravitated to communities where friends and family could receive them, the most recent Venezuelan newcomers tend to lack those networks in the United States. Many have headed straight to New York, whose shelter system guarantees a bed to anyone regardless of immigration status.

City officials say they are housing more than 48,000 migrants across an array of hotels, dormitories and makeshift shelters that now spans 169 emergency sites.

New York has spent $1.2 billion on the relief effort since last summer. The ballooning costs have left Mayor Eric Adams feuding with local leaders upstate over who should take responsibility for the migrants, and he has also called out President Biden, a fellow Democrat, for not sending more aid.

Other U.S. cities are struggling with the influx too. Denver, Philadelphia and Washington — all cities with Democratic mayors — have received migrants bused from Texas as part of a campaign by Republican Gov. Greg Abbott to denounce Biden administration border policies. In Chicago, migrants have slept in police stations while awaiting shelter beds.

Officials in those cities are scrambling to find bed space and clamoring for more federal assistance. But the ad hoc nature of the humanitarian effort raises questions about the ability of New York City and other jurisdictions to receive and resettle so many newcomers.

The flow of Venezuelans crossing the southern border has dropped since the Title 42 policy ended, even as many continue arriving in cities in northern Mexico in hopes of reaching the United States. The Biden administration is tightening border controls and urging Venezuelans and others to apply for legal U.S. entry using a mobile app, while expanding the number of slots available for asylum seekers to make an appointment at an official border crossing.

The number of people requesting appointments, however, far outstrips supply.

The influx of migrants in New York has pushed the city’s total shelter population to 95,000, up from 45,000 when Adams took office in January 2022.

“We have reached a point where the system is buckling,” Anne Williams-Isom, deputy mayor for health and human services, told reporters at a news conference in late May.

. . . .

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Read the rest of Nick’s & Joanna’s article at the link.

This Administration has been in office more than two years, with knowledge of the inevitable flow of asylum seekers, particularly from Venezuela and access to some of the best and most innovative human rights experts in the private sector.

Yet, this Administration has failed to 1) put in place an orderly nationwide resettlement system in partnership with the many NGOs and some localities “already in the business;” 2) construct “regional reception centers” to provide food, shelter, representation, and support to asylum seekers during the legal process, as recommended by many experts, and 3)  restore functionality and timeliness to the legal asylum systems at USCIS and EOIR by a) cleaning out the “deadwood” (or worse) accumulated during the Trump Administration, and b) hiring experts, not afraid to properly use asylum and other laws to “protect rather than reject” and to replace the anti-asylum culture and legal regimes installed and encouraged at DHS and EOIR under Tump.

Additionally, most Venezuelans can’t be returned anyway, and the Administration’s apparent hope to “orbit” many of them to Mexico, a country far less able to absorb them than than the U.S., is ill-advised at best. 

Consequently, updating TPS for Venezuelans and others, thus providing employment authorization and keeping them out of the already dysfunctional asylum system, should have been a “no brainer” for this Administration.

This is a truly miserable absence of creative, practical problems-solving by a group that ran on promises to do better. Given the shortage of affordable housing in NY and other areas, why not “replicate and update” the CCC, WPA, and other public works projects from FDR’s “New Deal?” 

Give those arriving individuals with the skill sets opportunities to construct affordable housing for anyone in need, with an chance to live in the finished product as an added incentive! Let migrants be contributors and view their presence as an opportunity to be built upon rather than as a  “problem” that can’t be solved. 

Not rocket science! 🚀 But, evidently “above the pay grade” for Biden Administration immigration policy wonks!

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CONSTITUTION MOCKED BY ALL THREE BRANCHES AS KIDS CONTINUE TO FACE IMMIGRATION COURT ALONE!

https://documentedny.com/2023/06/20/unaccompanied-minors-immigration-court-asylum/

GIULIA MCDONNELL NIETO DEL RIO reports for Documented:

The 10-year-old boy sat in a chair that was too big for him and he asked the immigration judge in Spanish if he could speak to the court.

“Please, don’t deport me,” the boy, Dominick Rodriguez-Herrera, pleaded into the microphone. “I want to stay with my brother.”

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Then he buried his head into his mother’s stomach as they embraced, tears welling in both their eyes. “Don’t cry,” his mother told him softly, with one arm around Dominick, and the other holding her two-month-old son who whined on her shoulder.

Also Read: The Central American Minors Program Struggles to Get Back on Its Feet

The family, from Guatemala, was at the Broadway immigration court in Lower Manhattan last week for an initial hearing in Dominick’s immigration case. Dominick had crossed the U.S.-Mexico border alone in March of 2022, and was designated as an unaccompanied minor. 

Dominick’s mother, Nelly Herrera, told Documented the ordeal began when they were both  kidnapped in Mexico and separated. She said Dominick escaped their captors and reached the U.S. border. Malnourished and thin from weeks of little food, he managed to squeeze through a wall into California, although she’s not sure where. He was only eight years old, and had no idea where his mother was.

“He doesn’t talk about all that a lot because he says it’s something he doesn’t want to be reminded of anymore,” she said.

After authorities helped Herrera escape her captors in Mexico, she and Dominick were reunited last year. Now, without a lawyer, they are fighting for a chance for Dominick to stay with her in the U.S.

At a time when immigration courts are struggling to manage the high volume of migrants coming to New York City, another section of the system is facing a high volume of deportation cases: those of unaccompanied minors – children who entered the U.S. when they were under the age of 18, without a parent. Many of them show up to court without an attorney, and advocates are concerned that there aren’t enough resources to reach all of them.

“We are definitely seeing an uptick in the numbers,” said Sierra Kraft, executive director of a coalition called the Immigrant Children Advocates Relief Effort (ICARE).

Kraft said she observed the juvenile docket several times this year and found hundreds of children had come to court without legal representation.

“There was a little two year old that was sitting there with a sponsor, and they had no representation and really no idea what to do next. So it’s a real crisis,” Kraft said.

. . . .

At a Senate hearing on the safety of unaccompanied migrant children in Congress last week, Lorie Davidson, Vice President of Children and Family Services at Lutheran Immigration and Refugee Service, testified that most unaccompanied children do not have an attorney to represent them.

“I do not know of any other circumstances in which a three-year-old would have to represent themselves in court. It is indefensible,” Davidson said at the hearing.

. . . .

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Read Giulia’s complete article at the link.

Administrations of both parties have employed and disgracefully defended this clearly unconstitutional, due-process-denying process. The “low point” was probably during the Obama Administration when an EOIR Assistant Chief Immigration Judge infamously claimed that he could “teach asylum law to toddlers” — touching off an avalanche of internet satire. See https://www.aclu.org/video/can-toddlers-really-represent-themselves-immigration-court.

But, the Executive has had plenty of help from Congress and the Article III Courts, who both have failed to end this mockery of constitutional due process as well as common sense. It’s hard to imagine a more glaring, depressing example of failure of public officials to take their oaths of office seriously!

On the other hand, NY Immigration Judge Olivia Cassin, mentioned in the full article, is the right person for the job of handling the so-called “juvenile docket” at EOIR. A true expert in immigration and human rights laws, she came to the job several decades ago with deep experience and understanding gained from representing individuals pro bono in Immigration Court. 

She is a model of what should be the rule, not the exception, for those sitting on the Immigration Bench at both the trial and appellate levels. Although AG Garland has done somewhat better than his predecessors in “balancing” his appointments, EOIR still skews far too much toward those with only prosecutorial experience or lacking ANY previous immigration and human rights qualifications.  

Consequently, poor, inconsistent, and uneven judicial performance remains endemic at EOIR and not sufficiently addressed by Garland in his two plus years in office. Just another reason why Garland’s failing courts are running a 2 million case backlog and are unable to provide the nationwide due process, guidance, leadership, and consistency that EOIR was supposedly created to furnish.

Brilliant, well-qualified, and committed as individuals like Judge Cassin are, they are not going to be able to solve this problem without some help and leadership from above. Sadly, this doesn’t appear got be on the horizon.

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UPHOLDING THE RULE OF LAW & HUMAN DECENCY FOR REFUGEES HAS BEEN LEFT LARGELY TO NGOs IN LIGHT OF THE USG’S SYSTEMIC FAILURE 

Jenell Scarborough, Pathway to Citizenship Coordinator at EL CENTRO HISPANO INC, reports on Linkedin on a on a more optimistic note about the activities of those who actually are working to preserve and extend the rule of law and human decency to refugees:

What a way to celebrate World Refugee Day, with a community listening section where we meet community leaders who every day make extraordinary efforts to join forces and serve Immigrants and Refugees. We’re not just hearing from Eva A. Millona Chief, USCIS Office of Citizenship, Partnership and Engagement and the Chief of Foreign Affairs for Foster America.
 Thanks to Cristina España for keeping us connected with local government agencies and making visible the work of grassroots organizations, where El Centro Hispano works tirelessly. Without a doubt a great night!

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Way to go, Jenell. Encouraging to know that you are taking our legal obligations to refugees seriously, even if too many USG officials in all three branches aren’t! (Eva A. Millona of USCIS, mentioned in the post appears to be a rare exception among those in leadership positions within this Administration).

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🇺🇸 MAKE EVERY DAY WORLD REFUGEE DAY, & Due Process Forever!

PWS

06-21-23

 

 

Related posts:

  1. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  2. ⚖️🗽MORE TRUTH ABOUT THE SOUTHERN BORDER FROM ONE OF AMERICA’S 🇺🇸 LEADING HUMAN RIGHTS EXPERTS: “Real Needs, Not Fictitious Crises Account For The Situation at US-Mexico Border,” By Donald Kerwin Center For Migration Studies
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. ICRC: “Migration is not going to stop. If you try to prevent it or strictly regulate it, people start to pile up at the borders, which is happening in Mexico and other countries.”

🇺🇸⚖️🗽📚 CMS PROUDLY ANNOUNCES THE OSUNA COLLECTION: “Honoring The Late, Great Juan Osuna on Access to Justice, the Rule of Law and Due Process!”

Juan P. Osuna
Juan P. Osuna (1963-2017)
Judge, Executive, Scholar, Teacher, Defender of Due Process

Special Collection on Access to Justice, Due Process and the Rule of Law in Tribute to Juan Osuna

On November 15, 2018, CMS hosted an event on access to justice, due process and the rule of law to honor the legacy of Juan Osuna, a close colleague and friend who held high-level immigration positions in four administrations over a 17-year period. Prior to his government service, Mr. Osuna served as a respected editor and publisher and a close collaborator with many civil society organizations. As a follow-up to its gathering, CMS is publishing a series of blogs, essays, talks, and papers on the values and issues to which Mr. Osuna devoted his professional life. It will ultimately compile these papers into a CMS special collection in Mr. Osuna’s memory. CMS hopes that this special collection will contribute to the development of a removal adjudication system that operates in a fair, equitable, effective, and rights-respecting way.

Publications

Access to Justice, the Rule of Law, and Due Process in the US Immigration System: A Tribute to Juan Osuna
By Donald Kerwin
Date of Publication: June 16, 2023

The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog
By Donald Kerwin and Evin Millet
Date of Publication: May 25, 2023

Charitable Legal Immigration Programs and the US Undocumented Population: A Study in Access to Justice in an Era of Political Dysfunction
By Donald Kerwin and Evin Millet
Date of Publication: September 28, 2022

Strengthening the US Immigration System through Legal Orientation, Screening and Representation: Recommendations for a New Administration
By Donald Kerwin
Date of Publication: August 26, 2020

Universal Representation: Systemic Benefits and the Path Ahead
By Lindsay Nash
Date of Publication: August 19, 2019

An Overview and Critique of US Immigration and Asylum Policies in the Trump Era
By Paul Wickham Schmidt
Date of Publication: August 14, 2019

Reflections on a 40-Year Career as an Immigration Lawyer and Judge
By Hon. Dana Leigh Marks
Date of Publication: April 8, 2019

Access to Counsel and the Legacy of Juan Osuna
By Ingrid V. Eagly
Date of Publication: February 5, 2019

Access to Justice in a Climate of Fear: New Hurdles and Barriers for Survivors of Human Trafficking and Domestic Violence
By Kathryn Finley
Date of Publication: January 29, 2019

Moving Away from Crisis Management: How the United States Can Strengthen Its Response to Large-Scale Migration Flows
By Rená Cutlip-Mason
Date of Publication: January 23, 2019

No Agency Adjudication?
By Jill E. Family
Date of Publication: December 18, 2018

Immigration Adjudication: The Missing “Rule of Law”
By Lenni B. Benson
Date of Publication: August 8, 2018

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Juan was my friend, colleague, fellow Adjunct Professor at Georgetown Law, and one of my successors as BIA Chair.  My tribute to Juan at the time of his untimely death in 2017 was, I believe, the “most viewed item ever” on “Courtside.” For those who missed it, here it is. https://wp.me/p8eeJm-1gd.

I am honored to have one of my articles included with those of amazing immigration “practical scholars” in this connection!

Many thanks to Don Kerwin for alerting me to this “Tribute Collection” and for his work in putting it together. I know that Don was a close friend and admirer of Juan’s comprehensive and inspiring body of work! Don’s heartfelt introduction, Access to Justice, the Rule of Law, and Due Process in the US Immigration System: A Tribute to Juan Osuna, and several of his original works are included in this collection!

Donald M. Kerwin
Donald M. Kerwin

🇺🇸 Due Process Forever!

PWS

06-18-23

Related posts:

  1. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”
  2. THE GIBSON REPORT — 02-14-21💝 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Mandatory E-Filing @ EOIR Starts & Lots Of Other “Interesting Stuff!”  — CMS Study Shows How Garland Is Ignoring the “Low Hanging Fruit” On His Out of Control EOIR Backlog! ☹️
  3. HON. DANA LEIGH MARKS REFLECTS ON AMAZING FOUR DECADES OF SERVICE TO PUBLIC & HUMANITY!
  4. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!

🗽 AFTER DECADES OF INEXCUSABLE FAILURE & CRUEL GIMMICKS, AMERICA 🇺🇸 CAN & SHOULD DO MUCH BETTER FOR ASYLUM SEEKERS — AN ESSENTIAL GROUP OF LEGAL IMMIGRANTS —  New AILA Report Tells How! ⚖️

Clown Parade
AILA says this vision of the USG’s Asylum Program could be changed for the better. PHOTO: Public Domain

https://www.aila.org/highstakesasylum

Introduction 

There should be a process, but there does need to be some space to be able to do this process. When you are in the thick of applying for asylum, you’re going to commit errors, you’re going to make mistakes, and it’s my understanding that these are the things that get you sent home. The work of an attorney is so important because you [as the applicant] have to turn over your soul, the best of you in this interview. The hardest part is the time, and the details required to demonstrate to the U.S. you are worthy of being allowed to remain herei 

Lara Boston, MA Recently received her green card based on an asylum grant. 

For people fleeing violence and persecution, nothing is more important than finding safety. For more than 40 years, U.S. asylum law has guaranteed asylum seekers the right to access legal protections enabling them to stay in the United States and avoid being returned to danger. But since the Refugee Act was signed into law in 1980, the laws on asylum eligibility have grown into a maze of convoluted requirements and pitfalls, like the children’s game “Chutes and Ladders,” with potentially deadly consequences. 

Because of the complexity and requirements of asylum law, it takes time to prepare an asylum application. In my 25 years of practice, I have prepared and filed hundreds of asylum applications. Based on my experience, it takes time to get an accurate account of someone’s life when there’s violence and trauma involved. It takes time to find evidence of torture and persecution. When you read this report, I encourage you to try to imagine navigating the complex legal steps in the asylum process. Then, imagine doing it without an attorney, a nearly impossible task as extensive research and data has shown.1 

This report comes at a critical moment when increased migration to the U.S. southern border and intense political pressure are pushing lawmakers to process asylum seekers faster. Faster can be accomplished, but it must also be fairer. If the system is fair, people meriting protection will receive it and those not eligible can and must depart. Toward that end, this report includes several recommendations that improve asylum processing so that it is both fair and more efficient. It is our hope that this report will contribute to policy reforms that are grounded in the realities of asylum law and the system that implements it. 

Jeremy McKinney President, American Immigration Lawyers Association (AILA) 

i Quotes by Lara throughout the report are from an interview conducted primarily in Spanish and then translated into English. 

High-Stakes Asylum How Long an Asylum Case Takes and How We Can Do Better 3 AILA Doc. No. 23061202. (Posted 6/14/23) 

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Executive summary and recommendations 

The heightened levels of migration worldwide are drawing intense political and media attention to the United States’ southern border, including radical calls for blocking access to asylum seekers that would undo longstanding American humanitarian principles. More balanced, smarter approaches are available. In fact, since taking office, the Biden Administration has implemented several such policies, including the scale-up of resources to screen asylum seekers at the border and the expansion of existing legal pathways for people to obtain protection. 

Unfortunately, the President is also accelerating and truncating the asylum system in an attempt to speed up the process with policies like the 2022 asylum processing rule and the dedicated dockets program.ii AILA has forcefully opposed these recent policies because they are restricting or blocking asylum access and, as a result, deeply compromising the integrity and fairness of the U.S. system.iii 

This report on the asylum process draws principally upon the expertise of AILA’s membership of more than 16,000 immigration attorneys and law professors nationwide who provided more than 300 detailed responses to a survey about the critical steps and time required to prepare an asylum case.iv The report’s principal conclusion is that the minimum time required for an attorney to properly prepare an asylum case is 50 to 75 hours. While this estimate accounts for some complications, an asylum case can take much longer. For example, the attorney may need to find evidence of torture in a country that is still wracked by political violence or devote extensive interview time to obtain sensitive information from the asylum applicant while they are still suffering from trauma. See Appendix I. 

The government can greatly increase the efficiency of the asylum process by increasing agency resources and capacity and by eliminating existing delays within the system. Some of those steps are being taken, but further action is urgently needed . AILA recommends the Biden Administration use a systemwide, all-of-government approach to implement a range of solutions that will improve asylum processing and the management of migration at the U.S. southern border. 

America needs an asylum system that is in line with the nation’s commitments to protect asylum seekers and ensure a fair legal process while also meeting the urgent demand for greater efficiency and capacity. The country’s immigration system must be able to quickly identify who has a legitimate claim for humanitarian protection and who does not. Those not eligible should be required to depart. But imposing strict, arbitrary timelines for asylum that do not allow for adequate preparation will result in eligible asylum seekers being denied protection and sent back to face persecution or death. 

ii The asylum processing rule is formally known as “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers.” New enrollment is currently paused as the Biden administration focuses on the transition away from Title 42. For recent updates, see Featured Issue: Asylum and Credible Fear Interim Final Rule, AILA, https://www.aila.org/advo-media/issues/featured-issue-asylum-and-credible-fear#:~:text=The%20 interim%20final%20rule%20%E2%80%9CProcedures,for%20individuals%20in%20expedited%20removal. See infra at Biden administration fast-tracked programs limit the opportunity to access counsel for more information on the asylum processing rule and the dedicated docket program. 

iii E.g., AILA and the Council Submit Comments on Credible Fear Screening and Asylum Processing IFR, May 26, 2022, https:// www.aila.org/infonet/comments-on-credible-fear-screening; AILA Joins Legal Service & Mental Health Providers in Letter to Administration Expressing Grave Concerns over the “Dedicated Docket”, Oct. 5, 2022, https://www.aila.org/advo-media/ aila-correspondence/2022/letter-to-administration-expressing-grave-concerns; AILA and the Council Submit Comments on Circumvention of Lawful Pathways Proposed Rule, Mar. 26, 2023, https://www.aila.org/infonet/comments-on-circumvention- of-lawful-pathways. 

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iv See Appendix II. 

High-Stakes Asylum How Long an Asylum Case Takes and How We Can Do Better 4 AILA Doc. No. 23061202. (Posted 6/14/23) 

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Ultimately, systemwide changes can only be accomplished through congressional action to appropriate the funding required to meet these systemic demands. After three decades of inaction, Congress must pass immigration laws that ensure America’s immigration system is ready for the future. 

Key findings 

  • The basic steps of preparing an asylum application takes an estimated minimum of 50 to 75 hours. This work cannot be done in one continuous period; instead, it is carried out over the course of several months. Cases with significant complexity can take far more time than this estimate.
  • Most asylum cases are not straightforward. Complicating factors that add time to an asylum case may include detention, past trauma experienced by the applicant, language barriers, and procuring evidence from foreign countries or expert witnesses such as medical testimony.
  • It is extremely difficult for an asylum seeker represented by counsel to sufficiently develop their asylum application within the mandatory deadlines established in the May 2022 asylum processing rule or the expedited family court “dedicated dockets.”
    AILA recommendations
    Ensure asylum timelines do not undermine fairness
  • When setting asylum processing deadlines, allow adequate time for an asylum seeker to obtain counsel and for the attorney to prepare for the case. Timelines should not rush trauma survivors who may need more time to recount their experience. Reasonable continuances should be allowed to obtain an attorney or for attorney preparation.
  • Waive or exempt asylum seekers from deadlines if the reason the deadline was not met is outside of their control.
  • Do not hold asylum seekers to the same evidentiary standards when they are subject to expedited adjudication timelines, such as the shortened deadlines of the 2022 asylum processing rule.
    Reduce government delays and inefficiency
  • Establish uniform policies, centralized systems, and appropriate information sharing between immigration agencies. Agencies should centralize and digitize address changes across all agencies and simplify access to a noncitizen’s immigration record. These steps will enhance communication and data sharing, which will in turn reduce backlogs, avoid delays, and increase efficiency and fairness.
  • Reduce the immigration court backlog. Executive Office for Immigration Review (EOIR) should continue expanding initiatives to remove cases from the docket or facilitate the resolution of cases through pretrial conferencing. Immigration judges should administratively close or terminate appropriate cases, such as those eligible for a benefit with U.S. Citizenship and Immigration Service (USCIS).2
  • Do not expend finite prosecutorial resources on cases that can be resolved more expeditiously. Immigration and Customs Enforcement’s (ICE) Office of the Principal Legal Advisor (OPLA) attorneys should engage in pretrial negotiations and exercise prosecutorial discretion to avoid unnecessary litigation.
    High-Stakes Asylum How Long an Asylum Case Takes and How We Can Do Better 5 AILA Doc. No. 23061202. (Posted 6/14/23)

Return to TOC 

Legal access and representation improve fairness and government efficiency 

  • Ensure asylum seekers and other migrants being processed rapidly at the U.S. southern border have access to legal information, advice, and full counsel during credible fear interviews (CFIs), Customs and Border Protection (CBP) inspections, and immigration court proceedings.
  • Congress should Fund the Department of Justice (DOJ) to provide legal representation for all immigrants. Everyone needs access to an attorney to provide legal advice and information prior to any hearings, including the CFI. Congress should appropriate DOJ funding to provide full legal representation to those in removal proceedings who cannot afford it.
  • Ensure access to counsel in all detention facilities. Detention facilities must be held accountable to policies that ensure attorneys have reliable confidential contact visits with clients, as well as access to free and confidential phone calls and video conferences. The government must monitor access to counsel at ICE facilities and impose penalties for violations of standards.
    Reduce immigration detention

• Reduce immigration detention. Detention delays asylum cases because it creates barriers to obtaining counsel and makes case preparation far more difficult. The Department of Homeland Security (DHS) should reduce its use of immigration detention. 

Improve the asylum process 

  • The Biden administration should publish the long-awaited regulation on particular social group (PSG) asylum cases. On February 20, 2021, President Biden issued an executive order to promulgate this regulation by November 17, 2021,3 but it has not been published. A regulation would aid in consistency of application of asylum law and would reduce USCIS referrals to immigration court.
  • Increase transparency in adjudications by making DHS’s asylum officer training materials publicly available.
  • Establish an interagency task force to develop a trauma-informed adjudication system. Experts in development, mental health, welfare, and trauma science should all be involved in this process. A trauma-informed adjudication process will help ensure accurate adjudications in the first instance, which in turn will decrease appeals.
  • Fund additional asylum officers. Congress should appropriate funds to increase the capacity of USCIS to adjudicate asylum applications.

High-Stakes Asylum How Long an Asylum Case Takes and How We Can Do Better 6 AILA Doc. No. 23061202. (Posted 6/14/23) 

Return to TOC 

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

Download and read the complete report and view accompanying video at the above link!

Amy R. Grenier
Amy R. Grenier ESQ
Immigration Attorney
Washington, D.C.
PHOTO: Linkedin

Here’s one of my favorite comments on Linkedin from an all-star member of the NDPA, Amy R. Grenier:

A year ago, I wanted to cite something in a regulatory comment, but the cite I needed didn’t exist yet.

Today, the American Immigration Lawyers Association released a report on asylum timelines, High-Stakes Asylum: How Long an Asylum Case Takes and How We Can Do Better. The report is based on a survey of over 300 asylum attorneys about how much time it takes to prepare an asylum application, and what complications add significant time. High-Stakes Asylum also includes recommendations on how to inject efficiency into the existing asylum process and ensure the integrity of a system that has life-and-death consequences.

I hope that you find it helpful to cite someday #immigration #lawyers #HighStakesAsylum!

Three decades ago, when I was practicing business immigration at Jones Day, we also did a robust pro bono Immigration Court BIA practice in which I played an advisory role. Even then, we allocated a minimum of 100 hours of attorney/paralegal prep time for an asylum case in Immigration Court and 40 hours for a BIA appeal. 

And, at that time, the system probably wasn’t as “intentionally user unfriendly” as it is now. On some occasions, we were responding to requests for pro bono representation from Immigration Judges who believed that without representation certain previously unrepresented detained cases would “be lost and linger in the system forever.” That was long before 2 million case backlogs!

Representation is essential for due process at EOIR! This fundamental truth is neither new nor is it “rocket science!” That politicians of both parties and Article III Judges have swept this truth under the carpet doesn’t make it less true! If lives of persons who didn’t have the bad fortune to be immigrants were at issue, this intentionally due-process-denying system would have been held unconstitutional by the Supremes decades ago!

Unfortunately, A.G. Garland has fashioned a “highly, unnecessarily, and intentionally user unfriendly system” that actually discourages and impedes pro bono and low bono representation.

Alfred E. Neumann
Immigration experts and long-suffering advocates have become weary of AG Garland’s “above the fray” attitude and substandard performance on human rights and equal justice in America!
PHOTO: Wikipedia Commons

Even worse, he and his subordinates have failed miserably to “fully leverage” the amazing VIISTA Villanova program for training more highly-qualified non-attorney “accredited representatives” to rapidly close the representation gap throughout the nation. The asylum litigation “training modules” put together by VIISTA founder Professor Michele Pistone, with help from the National Institute for Trial Advocacy (“NITA”) puts EOIR/DOJ/DHS asylum training to shame! 

Professor Michele Pistone
Professor Michele Pistone
Villanova Law  — The founder of VIISTA Villanova, brilliant lawyer, inspirational leader, teacher, scholar, social justice mavan, why isn’t she running and reforming EOIR? Why is Garland afraid of a proven “creative disrupter” driven 100% by a commitment to equal justice for all?

Incredibly, the Biden Administration “blew off” recommendations by experts that Professor Pistone or one of her colleagues be recruited to “shake up” EOIR and radically reform and improve training in asylum and other forms of protection.

Lack of fundamental expertise and private sector expedience representing asylum seekers is a key reason why EOIR under Garland continues to “wander in the wilderness” of legal dysfunction with no way out! So unnecessary! So damaging to democracy!

Jeremy McKinney
Jeremy McKinney, Esquire
Greensboro, NC
AILA President

Many thanks to Jeremy McKinney, Greg Chen, and others who worked on the AILA report. Cite it! Use it! Demand that Congress heed it! Use it to force justice into Garland’s failed, dysfunctional, and unfair “Clown Courts!”🤡

🇺🇸 Due Process Forever!

PWS

06-16-23

Related posts:

  1. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!
  2. 🏴‍☠️THE PROBLEM @ THE BORDER ISN’T THAT BIDEN HAS  SOFTENED TRUMP’S RACIST, WHITE NATIONALIST, SCOFFLAW RHETORIC! — IT’S THAT BIDEN, GARLAND, & MAYORKAS HAVE FAILED TO RESTORE A ROBUST ASYLUM SYSTEM AT LEGAL PORTS OF ENTRY, STAFFED WITH EXPERT ASYLUM OFFICERS & QUALIFIED IMMIGRATION JUDGES WHO WILL GRANT ASYLUM TO THOSE QUALIFIED, END IDIOTIC TRUMP-ERA MISINTERPRETATIONS & MIS-APPLICATIONS OF ASYLUM LAW, AND ARE DEDICATED TO DUE PROCESS FOR ALL! — Administration’s  Misguided “Trump Lite” Approach Continues To Create Human Misery,☠️⚰️ Trash The Law, 🤮 Without Addressing The Real Problems Generated By Years Of “Malicious Incompetence” 🤡🆘 In U.S. Asylum & Refugee Policies!  — Jack Herrera Reports From The Border For Politico!
  3. 🗽⚖️🇺🇸LEE GELERNT @ ACLU SAYS BIDEN ADMINISTRATION “cannot farm out the asylum system.” Yet, That Appears To Be Largely What They Are Doing Under New, Previously Unpublicized Program!
  4. ⚠️🚸V.P. HARRIS IS GOING TO THE BORDER: SHE SHOULD TALK WITH THE REAL VICTIMS OF HER GOVERNMENT’S, ILLEGAL, WRONG-HEADED, IMMORAL, AND INEFFECTIVE BORDER DETERRENCE POLICIES — Avoid The CBP “Dog & Pony Show,” & The GOP’s Cowardly “Gunboat Cruz” — Cross Over The Border, View The Human Rights Catastrophe We Have Created, Understand People Have A Right To Seek Legal Refuge, & Fix The Legal Asylum System At Ports Of Entry & Immigration Courts With Humane, Practical Experts! — “The vice president seems to have bought into the… I can’t use another word, but the nativist party line, that somehow these immigrants are the cause of the problem when, in fact, they’re the victims of multiple problems in many cases.” — Stop Blaming, Shaming, & Dehumanizing The Victims & Start Fixing Our Asylum System & Solving The Problems That Force Them To Migrate!

🤯 CAIR COALITION COGENTLY CONCLUDES: CANNED CLAPTRAP CAN’T CHANGE CRATERING CLOWN COURTS! 🤡

 

Kangaroos
“We don’t need immigration expertise to be hired, and now we don’t need it to deny cases either. Just have to slap any old attachment on it! EOIR is the ‘paint by numbers’ of judging!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

https://www.caircoalition.org/2023/06/12/breaking-attorneys-advocate-better-due-process-response-immigration-judges-making

BREAKING: Attorneys advocate for better due process in response to immigration judges making conveyor-belt deportation decisions

June 12, 2023

Immigration attorneys nationwide have witnessed a concerning increase in immigration judges issuing deportation decisions without individualized analysis. Instead, these barebones decisions often rely on boilerplate “form addenda,” which are standardized summaries of immigration law not specific to any noncitizen’s case.

This week, in response to these concerning practices, Capital Area Immigrants’ Rights (CAIR) Coalition and pro bono counsel O’Melveny & Myers, along with over 50 partner organizations, have submitted a letter advocating that the Executive Office for Immigration Review (EOIR) reform its policies governing the use of form addenda.

Because they are not specific to a person’s individual case and are instead just stapled to a deportation order as legal justification, the addenda usually include irrelevant issues and sometimes incorrect statements of the law. Plus, the noncitizen and their attorney often never see a copy of the addenda.

The sign-on letter urges EOIR to take multiple, concrete steps to change its policies governing the use of form addenda. These measures include increased training on addenda usage for immigration judges, making form addenda publicly accessible, and appointing an ombudsman to investigate addenda misuse.

“Due to the drastic consequences for immigrants in deportation cases—including family separation and possible persecution and death in people’s home countries—the law requires U.S. immigration judges to conduct an individualized analysis of each noncitizen’s case when deciding on their removal proceedings,” said Peter Alfredson, Senior Attorney at CAIR Coalition. “When the stakes are that high, noncitizens deserve to know that judges are taking their claims seriously—or even looking at their claims at all—and issuing decisions that reflect that responsibility.”  

“Immigration judges merely staple these form addenda to a removal order instead of doing their job to analyze each person’s case.” said Adina Appelbaum, Program Director of the Immigration Impact Lab at CAIR Coalition. “We need clearer policies from EOIR so that if judges use these addenda, they will do so in a way that is fair and respectful to the noncitizens whose lives are in their hands.” 

Adina Appelbaum
Adina Appelbaum
Director, Immigration Impact Lab
CAIR Coalition
Charter Member, NDPA
PHOTO: “30 Under 30” from Forbes

————-

Contact

Erin Barnaby, CAIR Coalition   |   erin@caircoalition.org

————-

About Capital Area Immigrants’ Rights Coalition

Through free legal, social, and litigation services, Capital Area Immigrants’ Rights (CAIR) works to ensure equal justice for immigrants in the Capital region who are at risk of detention and deportation.

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

Crazy catastrophic courts can’t continue!

🇺🇸 Due Process Forever!

PWS

06-14-23

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️CAMILLE J.  MACKLER @ JUST SECURITY “GETS IT!” — How Come Judge Garland & The Biden Administration Don’t? — “If we want to re-build a better, stronger immigration system, we need to start with immigration courts.” — Get Involved! Get Angry! Say No To Institutionalized Racism, Misogyny, & Dehumanization (“Dred Scottification”) @ EOIR! Force Judge Garland To Pay Attention! Demand Change, Now!
  2. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  3. ☠️🤯🤮🚫 AFTER WINNING YEARS-LONG BATTLE TO STOP ILLEGAL REFUGEE REMOVALS BY TRUMP & BIDEN, WEARY HUMAN RIGHTS ADVOCATES FACE DAUNTING NEW CHALLENGE: Garland’s Dysfunctional Due-Process-Denying “Courts” — Key Empirical Info Lacking, But We Do Know One Important Thing: Garland’s Latest Docket “Gimmick” — Time Limits — Sharply Reduces Chances Of Success, From Probable Grant (52%) To Likely Denial! — Quality Control & Grotesque Inconsistencies Remain Unaddressed In Dem AG’s “Race To Deny” Legal Protection!🤮
  4. 🤮☠️ THE COLLATERAL DAMAGE FROM GARLAND’S “AIMLESS DOCKET RESHUFFLING” (“ADR”) A/K/A “PLANNED CHAOS” IS DEVASTATING THE LEGAL PROFESSION! 🏴‍☠️ — Jason “The Asylumist” Dzubow Reports!

🏴‍☠️ EOIR DENIES DUE PROCESS TO ASYLUM SEEKER, SAYS SLIT 9TH! — Dysfunctional Agency Renowned For “Aimless Docket Reshuffling” Of Scheduled, “Ready to Try” Cases Can’t Spare Time For Same-Day Filing By Newly Retained Counsel In “Life Or Death Matter!” — Arizmendi-Medina v. Garland

Kangaroos
“Deny, deny, deny, deter, deter, deter! ‘Fake efficiency’ over justice! Expediency over due process! Gee, it’s fun to be a ‘Deportation Judge’ @ EOIR! Much better than having to practice before this awful mess we’ve created! “
https://www.flickr.com/photos/rasputin243/
Creative Commons License

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/06/07/21-298.pdfw

KEY QUOTE FROM CIRCUIT JUDGE RONALD LEE GILMAN’S MAJORITY OPINION:

. . . .

Third, the IJ was hardly inconvenienced at all. Arizmendi-Medina’s counsel offered to submit the application while the IJ was still on the bench. Although this might have required the IJ to recall Arizmendi-Medina’s case at the end of the IJ’s docket, this inconvenience was truly minimal. Cf. Jerezano, 169 F.3d at 615 (“While an IJ need not linger in the courtroom awaiting tardy litigants, so long as he is there on other business and the delay is short[,] …it is an abuse of discretion to treat a slightly late appearance as a nonappearance.”). Further, as discussed above, the December 18, 2018 hearing was a Master Calendar hearing, not a merits hearing. This means that the proceedings were ultimately not delayed at all.

And fourth, we consider the total number of continuances previously granted to Arizmendi-Medina. He received two very short continuances (only two weeks each) to find an attorney at the beginning of his immigration proceedings on July 31, 2018 and August 15, 2018. See Cruz Rendon, 603 F.3d at 1106–07, 1110 (finding that two one- month continuances were both “exceedingly short”). The proceedings were then reset at the hearing on August 29, 2018 because Arizmendi-Medina requested, and the IJ granted, a change of venue. The next hearing was scheduled for October 24, 2018 before a new IJ. Although this certainly gave Arizmendi-Medina more time to find an attorney, this delay was primarily due to the change of venue and getting the case calendared in a new court.

Finally, after Arizmendi-Medina was required to proceed pro se and was found removable at the hearing on October 24, 2018, the IJ granted another continuance so that Arizmendi-Medina could continue to look for an attorney and work on his relief application (which was presented to him for the first time at the October 24, 2018 hearing).

20 ARIZMENDI-MEDINA V. GARLAND

Arizmendi-Medina thus received only one continuance after he was found removable and presented with a relief application, and he received zero continuances after he finally secured an attorney. From start to finish, the proceedings against Arizmendi-Medina were delayed for less than five months, with nearly two months of that delay due to the change of venue.

Ultimately, all of the Ahmed factors weigh in favor of finding that the IJ abused his discretion in not granting a continuance so that Arizmendi-Medina’s recently-retained counsel could complete and submit the relief application on December 18, 2018. The abuse is especially apparent given the offer of Arizmendi-Medina’s counsel to submit the application later that same day. Such an abuse by the IJ counsels in favor of finding that Arizmendi-Medina was denied fundamental fairness. See id. at 1110 (finding that the IJ abused her discretion in part because the merits hearing was “less than one month after Cruz Rendon first appeared with counsel,” which contributed to the noncitizen’s difficulty in marshalling evidence in such a short time frame (emphasis in original)). This “prevented [Arizmendi-Medina] from reasonably presenting his case.” See Zetino, 622 F.3d at 1013 (quoting Ibarra-Flores, 439 F.3d 620-21).

. . . .

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

This faux “court” system has lost sight of its sole function: To provide due process hearings to individuals whose lives and futures are on the line!

In this case, the DOJ was obviously willing to spend more time and resources on denying the respondent his day in court than it would have taken to hold a merits asylum hearing! No wonder they have built an astounding, ever-growing 2 million case backlog! Don’t let Garland & company get away with blaming the private bar or respondents (that is, “the victims”) for DOJ’s continuing screw-ups at EOIR!

No real inconvenience or delay to the IJ! Life or death for the respondent! Attorney kept on a treadmill by EOIR’s unreasonable conduct! Who would take cases, particularly pro bono, under this type of tone-deaf “double standard.” (Would Trump-appointed dissenting Judge Danielle J. Forrest, who probably never has represented an individual in Immigration Court, REALLY practice law under these abusive circumstances?)

How many of you out there in “Courtside Land” have arrived on time for a scheduled merits hearing, with respondent and witnesses in tow, only to find out that your case had been “orbited” further out on the docket, with no or inadequate notice? How many have had long-prepared cases arbitrarily shuffled to a future year while having other cases where you were recently retained mindlessly “moved up” on the docket to satisfy EOIR’s latest “priority of the day?” Pretending like “every minute counts” in this hopelessly inefficient and bolloxed system is EOIR’s and DOJ’s way of deflecting attention and shifting the blame for their own, largely self-created failures!

In the “topsy turvy” fantasy world of EOIR, the dockets are overwhelming and totally screwed up! So much, that DHS recently took the unprecedented step of unilaterally declaring that (except for a small subset of “mandatory appearances”) THEY would decide which EOIR cases to staff with an Assistant Chief Counsel. See,  https://immigrationcourtside.com/2023/05/31/🤯-wacko-world-of-eoir-dhs-prosecutors-deliver-the-big-middle-finger-bmf-🖕to-garlands-feckless-immigration-courts-unilate/. Implicit in this “in your face” action is the assumption that Immigration Judges will also act as prosecutors in these cases (even though Immigration Judges clearly lack some of the authority of prosecutors, including the exercise of prosecutorial discretion and stipulation to issues or relief).

On the other hand, private attorneys are systemically jerked around by EOIR and subjected to the threat of discipline for even relatively minor transgressions. Talk about an “uneven playing field!” In a system where lack of representation and under-representation are daily threats to due process and fundamental fairness, how does EOIR’s one-sided, anti-attorney, anti-immigrant conduct encourage new generations to chip in their time pro bono or low bono to bridge the ever-present “representation gap?”

In short, it does just the opposite! Some experienced practitioners have “had enough” and reduced or eliminated their Immigration Court presence while others have changed to other areas of practice because of EOIR’s continuing dysfunction under Garland. This should be a “solvable” problem — particularly in a Dem Administration! Why isn’t it?

Why is Garland getting away with this nonsense? How can we “change the playing field” and demand that Garland finally bring the due process reforms and expert judicial and professional, common-sense administrative personnel to America’s worst and most life-threatening courts?

Thanks to attorney Shannon Englert of San Diego for taking on Garland’s dysfunctional DOJ immigration bureaucracy!

Shannon Englert, ESQ Founder DYADlaw Vista, CA PHOTO: Linkedin
Shannon Englert, ESQ Founder DYADlaw Vista, CA                  PHOTO: Linkedin

 

🇺🇸 Due Process Forever!

PWS

06-13-23

“`

Related posts:

  1. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. 🏴‍☠️👎🏻🤮“HOUSTON, WE’VE STILL GOT A PROBLEM!” — A HUGE AND GROWING ONE — Garland’s Failure To Restore “Justice @ Justice” Reverberates Throughout Our Nation!🆘

🤯🗽 AT THE REAL BORDER WITH TODD MILLER OF THE BORDER CHRONICLE: Less Due Process, More Robo-Dogs! — The “Bogus Invasion Of Due Process Seekers” Overhyped By The White Nationalist GOP, The Biden Administration, & An Indolent Media Never Came — But, “The Border Industrial Complex,” Well-Fed By Biden, Is Alive & Prospering As Never Before!

Todd Miller
Todd MIller
Border Correspondent
Border Chronicle
PHOTO: Coder Chron

https://www.theborderchronicle.com/p/the-real-border-surge-the-end-of?utm_medium=email

Todd writes in the Border Chron:

On May 11th, I was with a group of people at the bottom of the Paso del Norte bridge in Ciudad Juárez, Mexico. Suddenly, I realized that I didn’t have the small change needed to cross the bridge and return to El Paso, Texas, where I was attending the 16th annual Border Security Expo. Worse yet, this was just three hours before Title 42, the pandemic-era rapid-expulsion border policy instituted by the Trump administration, was set to expire. The media was already in overdrive on the subject, producing apocalyptic scenarios like one in the New York Post reporting that “hordes” of “illegals” were on their way toward the border.

While I searched for those coins, a woman approached me, dug 35 cents out of a small purse — precisely what it cost! — and handed the change to me. She then did so for the others in our group. When I pulled a 20-peso bill from my wallet to repay her, she kept her fist clenched and wouldn’t accept the money.

Having lived, reported, and traveled in Latin America for more than two decades, such generosity didn’t entirely surprise me, though it did contradict so much of the media-generated hype about what was going on at this historic border moment. Since Joe Biden took office in 2021, the pressure on his administration to rescind Trump’s Title 42 had only grown. Now, it was finally going to happen — and hell was on the horizon.

But at that expo in El Paso that brought together top brass from the Department of Homeland Security (DHS), its border and immigration enforcement agencies, and private industry, I was learning that preparations for such a shift had been underway for years and — don’t be shocked! — the corporations attending planned to profit from it in a big-time fashion.

Seeing the phase-out of Title 42 through the lens of a growing border-industrial complex proved grimly illuminating. Border officials and industry representatives continued to insist that just on the other side of the border was a world of “cartels,” “adversaries,” and “criminals,” including, undoubtedly, this woman forcing change on me. By then, I had heard all too many warnings that, were the United States to let its guard down, however briefly, there would be an infernal “border surge.”

As I later stood in the halls of that expo, however, I became aware of another type of surge not being discussed either there or in the media. And I’m not just thinking about the extra members of the National Guard and other forces the Biden administration and Texas Governor Greg Abbott only recently sent to that very border. What I have in mind is the surge of ever higher budgets and record numbers of Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) contracts guaranteed to ensure that those borderlands will remain one of the most militarized and surveilled places on planet Earth.

. . . .

At $29.8 billion, the CBP/ICE portion of the DHS budget he praised was not just the highest ever but a $3 billion jump above 2022, including $2.7 billion for “new acquirements in our southwestern border.” In other words, the coming surge at the border was distinctly budgetary.

For context, when Donald Trump took office in 2017 his CBP/ICE budget was $21.2 billion. By 2020, it had gone up to $25.4 billion. In other words, it took him four years to do what the Biden administration essentially did in one. The last time there had been such a jump was from $9.4 billion in 2005 to $12.4 billion in 2007, including funding for huge projects like the Secure Fence Act that built nearly 650 miles of walls and barriers, SBInet which aimed to build a virtual wall at the border (with special thanks to the Boeing Corporation), and the largest hiring surge ever undertaken by the Border Patrol — 8,000 agentsin three years.

But if that’s what $3 billion meant in 2005-2007, what does it mean in 2023 and beyond? Gone was the Trump-era bravado about that “big, beautiful wall.” Hysen’s focus was on the Department of Homeland Security’s launching of an Artificial Intelligence Taskforce. A technocrat, Hysen spoke of harnessing “the power of AI to transform the department’s mission,” assuring the industry audience that “I follow technology very closely and I am more excited by the developments of AI this year than I have been about any technology since the first smartphones.”

Robo-Dog
This cuddly robo version of “man’s best friend” can be fully outfitted to “go into barracks and blow a motherfucker’s face off.” And, it can be triggered by an agent 30 miles away! How great is that! Sadly, in the midst of all this techno-warfare at the border, the Biden Administration can’t scrape together the resources to humanely resettle and fairly and timely process those asylum seekers they DO let into the country. It’s a question of priorities.
PHOTO: Border Chronicle
CAPTION BY COURTSIDE

That robo-dog in front of me caught the state of the border in 2023 and the trends that went with it perfectly. It could, after all, be controlled by an agent up to 33 miles away, according to the vendor, and apparently could even — thank you, AI — make decisions on its own.

The vendor showed me a video of just how such a dog would work if it were armed. It would use AI technology to find human forms. A red box would form around any human it detects on a tablet screen held by an agent. In other words, I asked, can the dog think?

I had in mind the way Bing’s Chatbox, the AI-powered search engine from Microsoft, had so infamously professed its love for New York Times reporter Kevin Roose. A human, using an Xbox-like controller, the vendor told me, will be able to target a specific person among those the dog detects. “But,” he reassured me, “it’s a human who ultimately pulls the trigger.”

In Mexico, when I walked to a spot where the Rio Grande flowed between the two countries, I ran into a small group of migrants camped out at the side of the road. Near them was a fire filled with charred wood over which a pot was cooking. A pregnant Colombian woman told me they were providing food to other migrants passing by. “Oh,” I asked, “so you sell food?” No, she responded, they gave it away for free. Before they had been camped out for months near the immigration detention center in Ciudad Juárez where a devastating fire in March killed 40 people. Now, they had moved closer to the border. And they were still waiting, still hoping to file applications for asylum themselves.

Behind where they sat, I could see the 20-foot border wall with coiling razor wire on top. There was nothing new about a hyper-militarized border here. After all, the El Paso build-up had begun 30 years ago with Operation Hold the Line in 1993. A desert camo Humvee sat below the wall on the U.S. side and a couple of figures (Border Patrol? National Guard?) stood at the edge of the Rio Grande shouting to a Mexican federal police agent on the other side.

The clock for the supposed Title 42 Armageddon was ticking down as I then crossed the bridge back to El Paso, where more barriers of razor wire had only recently been emplaced. There was also a slew of blue-uniformed CBP agents and several jeeps carrying camouflaged members of border units. Everyone was heavily armed as if about to go into battle.

At the Border Security Expo, Hysen pointed out that fear of a Title 42 surge had resulted in an even more fortified border, hard as that might be to imagine. Fifteen hundred National Guard troops had been added to the 2,500 already there, along with 2,000 extra private security personnel, and more than 1,000 volunteers from other agencies. Basically, he insisted, they had everything more than under control, whatever the media was saying.

. . . .

At the Edge of Everything — and Nothing At All

On the morning of May 12th, I was with border scholar Gabriella Sanchez at the very spot where the borders of Texas, New Mexico, and Chihuahua meet near El Paso. Title 42 had expired the night before and I asked her what she thought. She responded that she considered this the border norm: we’re regularly told something momentous and possibly terrible is going to happen and then nothing much happens at all.

And she was right, the predicted “surge” of migrants crossing the border actually decreased — and yet, in some sense, everything keeps happening in ways that only seem grimmer. Perhaps 100 yards from where we were standing, in fact, we soon noticed a lone man cross the international boundary and walk into the United States as if he were taking a morning stroll. Thirty seconds later, a truck sped past us kicking up gravel. For a moment, I thought it was just a coincidence, since it wasn’t an official Border Patrol vehicle.

Then, I noted an insignia on its side that included the U.S. and Mexican flags. The truck came to a skidding stop by the man. A rotund figure in a gray uniform jumped out and ran toward him while he raised his hands. Just then, a green-striped Border Patrol van also pulled up. I was surprised — though after that Border Security Expo I shouldn’t have been — when I realized that the initial arrest was being made by someone seemingly from a private security firm. (Remember, Hysen said that an extra 2,000 private security agents had been hired for the “surge.”)

In truth, that scene couldn’t have been more banal. You might have seen it on any May 12th in these years. That banality, by the way, included a sustained violence that’s intrinsically part of the modern border system, as geographer Reece Jones argues in his book Violent Borders: Refugees and the Right to Move. In the days following Title 42’s demise, an eight-year-old Honduran girl died in Border Patrol custody and a Tohono O’odham man was shot and killed by the Border Patrol. In April, 11 remains of dead border crossers were also recovered in Arizona’s Pima County desert alone (where it’s impossible to carry enough water for such a long trek).

In the wake of Donald Trump, everything on the border has officially changed, yet nothing has really changed. Nothing of note is happening, even as everything happens. And as Hysen said at that border expo meeting, big as the record 2023 border budget may be, in 2024 it’s likely to go “even further” into the stratosphere.

Put another way, at the border, we are eternally at the edge of everything — and nothing at all.

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

Read Todd’s complete report in the Border Chron at the link.

From Ike’s “Military-Industrial Complex” to Biden’s “Border-Industrial Complex” — my life has spanned it all! But, while Ike was trying to warn us about the dangers ahead, Biden (and the GOP) are trying to lull us into accepting unending and largely unaccountable border militarization as the inevitable wave of the future — even a good thing!

I’ve got nothing against technology! But, it should employed to make humanity better, not just for its own sake.  As I suggest below, the “Armed Robot-Dogs v. CBP One” (or EOIR’s venture into the virtual world) strongly suggest the lack of a healthy balance! 

Human migration is even older and more permanent than never-ending border militarization, industrialized cruelty, and dehumanization. The latter are now routinely practiced by the very Western nations who once, long ago, fought against Nazism and vowed, apparently somewhat disingenuously, “never again!”

Human migration was in motion long before the creation of the modern nation-state. It will be with us as long and there is life on earth.

Moreover, the realities of climate change and the future migrations and political reckonings it will force go well-beyond our already overly restrictive legal refugee regimes. Like it or not — and those of us fortunate to live in potential “receiving countries” shouldn’t fear it — there will be more, not less, human migration in the future.

In this context, I’m highly skeptical that “armed robo-dogs” — even those miracles of modern technology fully weaponized to “go into barracks and blow a motherfucker’s face off” — are the durable solutions to inevitable events that we need. 

It struck me that the woman who insisted that Todd keep her 35 cents, and the patient folks camped out around a wood cooking fire just south of the fence, waiting for appointments and hearings that might never come from the poor technology (how would an armed robo-dog react to the badly flawed “CBP One App” inflicted on human asylum seekers — state of the art technology seems rather one-sided at DHS, as most advocates would tell you) and our broken asylum legal system, probably are closer to having the answers to the future than any of the “hot air” politicos calling the shots or aspiring to do so.

🇺🇸 Due Process Forever!

PWS

06-10-23

Related posts:

  1. ⚖️🗽🇺🇸 SPEAKING OUT: “MATTHEW AT THE BORDER: ACTING ON THE MESSAGE OF CHAPTER 25”
  2. 👍🏼⚖️🗽MAJORITY OF ASYLUM SEEKERS WIN THEIR CASES, EVEN IN A BROKEN & BIASED  SYSTEM INTENTIONALLY STACKED AGAINST THEM — But, Only, If They Can Get To A “Merits Adjudication!” — Nativist Lies, Myths, Driving USG Policies Exposed! — Why USCIS & EOIR Self-Created Backlogs Primarily Shaft Those Deserving Legal Protection Of Some Type!
  3. 👍🏼🗽⚖️🙂🇺🇸BREAKING: IN A STUNNING REVERSAL, BIDEN ADMINISTRATION WILL BEGIN DISMANTLING “REMAIN IN MEXICO” PROGRAM BY SCREENING & ADMITTING THOSE WHO HAVE BEEN AWAITING ASYLUM HEARINGS! — Processing To Begin On Feb. 19!
  4. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!

🛡⚔️ THE ONGOING QUEST FOR THE “HOLY GRAIL OF JUSTICE” — Round Table Files Brief In Support Of Due Process, Rule of Law In East Bay Sanctuary v. Biden!

Knightess
Knightess of the Round Table

KEY EXCERPT:

INTRODUCTION

As former immigration judges and former members of the Board, we submit this amicus brief to ask the Northern District of California to strike down the Circumvention of Lawful Pathways Rule, 88 Fed. Reg. 31314 (May 11, 2023). The Rule, which came into effect in the immediate aftermath of Title 42’s sunset and which applies to non-Mexican asylum-seekers at the U.S.-Mexico border, automatically forecloses a migrant’s asylum claim unless the person (i) arrives at an official port of entry having secured an immigration appointment through a complex mobile application, (ii) receives advance permission to travel to the U.S., or (iii) comes to the U.S. after applying for and being denied asylum in a transit country. Absent proof one of these narrow exceptions or a medical or other emergency, asylum-seekers will be unable to seek asylum regardless of whether they have compelling claims to relief.

Immigration judges serve an important role in the Congressionally-mandated process for reviewing the claims of asylum-seekers at or near the U.S.-Mexico border. This decades-old process, known as Expedited Removal, has its own flaws, but it does provide a credible fear review system that provides important protections for those seeking asylum. Specifically, and as explained in more detail below, the Expedited Removal statute requires that asylum-seekers, regardless of how they entered the United States, be interviewed by asylum officers to determine whether they have a credible fear of persecution and therefore can proceed to a full asylum hearing under Section 240 of the INA. The statute further mandates that immigration judges provide de novo review of asylum officers’ negative credible fear determinations, and thus make the final decision about whether an asylum-seeker at the U.S.-Mexico border has shown a credible fear of persecution and will have the opportunity to progress to a full asylum hearing.

The Rule unlawfully undermines this statutory scheme. First, the Rule creates clear bars to asylum for most migrants, disingenuously labeling these as “rebuttable presumptions.” As a result, almost all claims for asylum are pretermitted without the full asylum credible fear interviews required by the statutory Expedited Removal process. Rather, the credible fear interview will be turned into a “reasonable fear” interview to determine whether the migrant can proceed to claim withholding of

removal or protection under the Convention Against Torture (“CAT”), lesser forms of relief compared to asylum. Asylum-seekers are thus denied the opportunity to obtain full review of their asylum credible fear claims, including the de novo review by an immigration judge as required by Section 235 of the INA, 8 C.F.R. § 235.3. Instead, asylum-seekers may only seek review from an immigration judge as to the application of the narrow exceptions under the Rule or the lesser claims for relief. Accordingly, the Rule significantly and unlawfully curtails the role of immigration judges in asylum adjudication as set forth in the INA.

Moreover, the idea that the Rule heightens efficiency in the asylum adjudication process is an illusion. When an asylum-seeker is denied the ability to provide a credible fear of persecution, Expedited Removal still requires a review of potentially more complicated claims for withholding of removal and protection under the CAT. Thus, immigration judges on the one hand find their hands tied, unable to review the claims of bona fide asylum-seekers, but on the other hand are required to delve into the standards of withholding and CAT. Thus, the Rule turns a straightforward (and efficient) asylum credible fear review into a three-part analysis: the Rule exceptions, withholding, and CAT.

Finally, by creating exclusions that deny asylum to refugees who appear at the U.S.-Mexico border, the Rule violates U.S. obligations under the 1951 Refugee Convention. Longstanding canons of statutory and regulatory construction require consideration of international law; in this case, the Rule violates both the INA and international law.

. . . .

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

Read the complete brief skillfully prepared by our friend Ashley Vinson Crawford and her team at Akin Gump!

Ashley Vinson Crawford
Ashley Vinson Crawford, ESQ
Partner Akin Gump
San Francisco, CA
“Honorary Knightess of the Round Table”
PHOTO: Akin Gump

Our brief basically reiterates, expands, and applies points we made in our recent comments opposing the Biden Administration’s “Death to Asylum,” regulations! See https://immigrationcourtside.com/2023/03/27/⚔%EF%B8%8F🛡-round-table-joins-chorus-of-human-rights-experts-slamming-biden-administrations-abominable-death-to-asylum-seekers-☠%EF%B8%8F-proposed/

Rather than heeding our comments and those of many other experts, the Administration proceeded with its wrong-headed changes, rammed through a farcically truncated “comment period” that showed that process was little but a sham. This is the exact kind of mockery of justice and prejudgement that one might have expected from the Trump Administration. It’s also one of the many things concerning immigration that Biden and Harris “ran against” in 2020 but lacked the will and integrity to achieve in practice.

Notably, we’re not the only group of “concerned experts” weighing in against the Biden Administration’s ill-advised rules. The union representing the USCIS Asylum Officers were among the many expert organizations and individuals filing in support of the plaintiffs in East Bay Santuary. See, e.g., Asylum Officers, Ex-Judges Back Suit On Biden Asylum Rule – Law360.

Among other choice commentary, the Asylum Officers argue that the rule “effectively eliminates asylum” at the southern border! What on earth is a Dem Administration doing betraying  due process and the rule of law in favor of the most scurrilous type of nativist anti-asylum pandering — stuff right out of the “Stephen Miller playbook?” Who would have thought that we would get rid of Miller & company in 2020, yet still have to deal with his ghost in a Biden/Harris Administration that clearly and beyond any reasonable doubt has “lost its way” on immigration, human rights, racial justice, and the rule of  law?

As Round Table spokesperson “Sir Jeffrey” Chase says, “We are in very good company!” Too bad that the Biden Administration has wandered off course into the morally vacant, disingenuous “never-never land” of anti-asylum, racially-driven nativism! It certainly did not have to be this way had effective, principled, expert leadership taken hold at the beginning.

🇺🇸  Due Process Forever!

PWS

06-09-23

Related posts:

  1. 🗽⚖️ CDC ANNOUNCES END OF “COVID BAR” — BUT ONLY 7 WEEKS FROM NOW — COMPARE WHAT DHS SHOULD HAVE SAID WITH WHAT THEY DID SAY — WITH 51 DAYS TO GO & COUNTING, CAN ADVOCATES & NGOs SAVE THE BIDEN ADMINISTRATION FROM ITSELF?
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. 🏴‍☠️☠️⚰️KAKISTOCRACY WATCH: AILA Blasts Appointment Of Prosecutors Without Judicial Qualifications To Top Judicial Positions in Billy the Bigot’s Weaponized Anti-Due-Process “Court” System — Dysfunction, Bias, Illegitimate Decisions Run Rampant As Congress, Article IIIs Fail to Enforce U.S. Constitution!
  4. 😰NO HAPPY NEW YEAR FOR FAMILIES IN “THE NEW AMERICAN GULAG”☠️⚰️ — As Kakistocracy Of War Criminals 🤮🏴‍☠️ Departs, Will President Biden Have The Wisdom & Guts To Move Beyond “The Dem Border Alarmists” & Get The Progressive Leaders 🦸🏽‍♂️⚖️ From The NDPA In Place To Bring Due Process & Order To The Border?🗽🇺🇸

⚖️🧑‍⚖️ THERE’S STILL TIME (BUT NOT MUCH) TO REGISTER FOR CMS’S “DEEP DIVE” INTO EOIR’S DYSFUNCTION, WITH TRUE EXPERTS

 
TOMORROW, June 6 at 12:30pm ET, the Center for Migration Studies of New York (CMS) will host a webinar and discussion on its latest paper entitled, The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog, by Donald Kerwin and Evin Millet.

Experts on the immigration court system will highlight the systemic problems in the US immigration system that have caused and sustained the backlog, and offer recommendations for reversing the backlog.

Speakers include:

  • Donald Kerwin, former executive director of CMS and Editor of the Journal of Migration and Human Security
  • Mimi Tsankov, President, National Association of Immigration Judges and member, Expert Advisory Group
  • Richard A. Boswell, Professor of Law, UC College of Law, San Francisco, and member, Expert Advisory Group

As well as additional members of the Expert Advisory Group:

  • Gregory Chen, Senior Director of Government Relations, American Immigration Lawyers Association
  • Anna Gallagher, Executive Director, Catholic Legal Immigration Network, Inc.
  • Karen T. Grisez, Pro Bono Counsel, Fried, Frank, Harris, Shriver, and Jacobsen, LLP
  • Hon. Dana Leigh Marks (retired), President Emerita, National Association of Immigration Judges (in her personal capacity)
  • Michele Pistone, Professor of Law, Villanova University
  • Andrew Schoenholtz, Professor from Practice, Georgetown University Law Center
  • Denise Noonan Slavin, retired judge, Adjunct Professor, St. Thomas University School of Law
  • Charles Wheeler, Senior Attorney/Director Emeritus, Catholic Legal Immigration Network, Inc.
Click the button below to register for FREE!
REGISTER
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The Center for Migration Studies (CMS) is a New York-based educational institute devoted to the study of international migration, to the promotion of understanding between immigrants and receiving communities, and to public policies that safeguard the dignity and rights of migrants, refugees, and newcomers. For more information, please visit www.cmsny.org.

Copyright © 2023 Center for Migration Studies, New York, All rights reserved.

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

To be bluntly honest, this panel of experts appears to be the group that an Administration seriously committed to restoring due process, fundamental fairness, and best practices to the “retail level” of U.S. justice would have hired in January 2021, to clean house 🧹 and institute lasting institutional reforms at America’s worst courts!

They have been “hiding in plain sight” for the past 2.5 years while Garland has been flailing and failing to bring order and long-overdue reforms to his tragically broken system!

Clown Car
Isn’t it time to finally get the “EOIR Clown Show” off the road before it causes more fatalities? Many experts think so!
PHOTO CREDIT: Ellin Beltz, 07-04-16, Creative Commons License, https://creativecommons.org/licenses/by-sa/4.0/. Creator not responsible for above caption.

🇺🇸 Due Process Forever!

PWS

06-05-23

Related posts:

  1. DEMS INTRODUCE BIDEN’S COMPREHENSIVE IMMIGRATION BILL — “U.S. CITIZENSHIP ACT OF 2021” — Lots Of Good Ideas, But Likely DOA In Narrowly Divided Congress! — Judge Garland Must Begin Immigration Court Reforms NOW!
  2. THE GIBSON REPORT — 02-14-21💝 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Mandatory E-Filing @ EOIR Starts & Lots Of Other “Interesting Stuff!”  — CMS Study Shows How Garland Is Ignoring the “Low Hanging Fruit” On His Out of Control EOIR Backlog! ☹️
  3. ☠️⚰️💀GARLAND’S STAR CHAMBERS — “SLOW VIOLENCE” ON PEOPLE OF COLOR!🥵— Bias, Bad Law, Bungling Bureaucracy! — “Where Due Process Goes To Die!” 🤮 — Upcoming Book Will Expose Garland’s Lawless, Cruel, Inhumane “Court” System!
  4. ⚖️🧑‍⚖️ IMMIGRATION COURTS IN CRISIS = DENIAL OF DUE PROCESS FOR INDIVIDUALS  — NY Times Article Quoting Round Table’s Judge Eiza Klein & Charles Honeyman, Also NDPA Officials, Judge Mimi Tsankov and Judge Samuel Cole! — PLUS BONUS COVERAGE: My Latest “Mini Essay” — “EOIR ABUSES ASYLUM SEEKERS”

☹️ WRONG AGAIN: 1st Cir. KO’s 🥊 BIA On Firearms! — Portillo v. DHS

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Dan Kowalski reports for LexisNexis immigration:

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca1-on-realistic-probability-portillo-v-dhs#

CA1 on Realistic Probability: Portillo v. DHS

May 31, 2023

(1 min read)

Portillo v. DHS

“Gerardo A. Portillo petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming his order of removal and denying his application for adjustment of status. Because we find that a conviction under Massachusetts General Laws (“MGL”) ch. 269, § 11C is not categorically a firearm offense as defined by 8 U.S.C. § 1227(a)(2)(C), we grant the petition for review, vacate the decision below, and remand for further proceedings. … Accordingly, without resorting to “legal imagination,” we conclude that MGL ch. 269, § 11C sweeps more broadly than the federal offense, and Portillo need not produce an actual case to demonstrate that overbreadth. … For the reasons stated above, we grant the petition for review, vacate the BIA’s opinion, and remand for further proceedings consistent with this decision.”

[Hats off to Jennifer Klein, Susan Brooks Church and Kathleen Marie Gillespie!  Audio of the oral argument here.]

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

Congrats to the NDPA “litigation team” of Klein, Church, & Gillespie!

Notably, the unanimous 1st Circuit did a detailed 24-page analysis to get this one right. This is the type of scholarship and effort one might expect, but doesn’t consistently get, from the BIA.

Remarkably, this case has now been pending for more than six years at EOIR. Now, largely as a consequence of EOIR’s, toxic “how can we get to no” bias, present over the past several Administrations, it’s back to “square one” with no end in sight.

THAT’S how a system builds uncontrollable backlog! Maybe pruning out the “deadwood” and bringing in “practical scholar-experts” as judges at the appellate and trial levels wouldn’t solve all the problems that have been building up for decades at EOIR. But, it sure would be a great start on a better future!

🇺🇸 Due Process Forever!

PWS

06-05-23

Related posts:

  1. 🌬🤯MORE BLOWBACK FOR GARLAND’S “COURTS” — Problems Emerge On Credibility (1st Cir., 10th Cir.), Agfel (9th Cir.)
  2. 🤯🤬 IT’S NOT “JUST THE 9TH CIRCUIT!” — A PANEL OF AMERICA’S MOST CONSERVATIVE CIRCUIT JUDGES (ALL GOP APPOINTEES) BLASTS GARLAND BIA’S SLOPPY, DEFECTIVE LEGAL WORK!🤮
  3. 🤯👎🏽MORE CIRCUIT REJECTS FOR GARLAND & PRELOGAR — 1st & 3rd Cirs “Just Say No” To DOJ’s Ill-Advised Positions On “Theft Offense” & Derivative Citizenship!  — It’s Part Of A Larger Leadership Failure @ Garland’s Broken DOJ!
  4. 🏴‍☠️🤡SLOPPINESS, POOR ANALYSIS, MISCONSTRUING RECORD, CONTEMPT FOR COURTS CONTINUE TO PLAGUE BIA’S DENIAL CULTURE!

⚖️ EMILY GARCIA @ BLOOMBERG: TORTURED LAW: Official Negativity, Captive Courts, Unduly Restrictive Criteria, Subjective Standards Combine To Deny Mandatory Protection In A World Where Torture Is Widespread ☠️— “It’s sort of in the mind of the beholder,” Say I!

EMILY GARCIA
Emily Garcia
Litigation Reporter
Bloomberg Law
PHOTO: talkingbiznews.com
Torture
This phase of the Inquisition is over. But, torture is still widely practiced worldwide. US Officialdom has shown little enthusiasm for carrying out its mandatory protection responsibilities under the Convention Against Torture (“CAT”).
PHOTO: Public Realm

 

The Supreme Court recently removed one procedural hurdle for noncitizens seeking humanitarian relief but the high court’s ruling clears up no substantial issues about a law they’ll make their claims under, immigration attorneys say—allowing some relief seekers to be sent back to torturous conditions.

Estrella Santos-Zacaria, a Guatemalan transgender woman, asked for federal review of the Board of Immigration Appeals’s decision denying her protection under the Convention Against Torture. In a unanimous decision, the justices said federal judges can weigh in on BIA’s decisions before discretionary administrative remedies are exhausted. In Santos-Zacaria’s case, her petition may be sent back to BIA for further review but that doesn’t guarantee relief.

While lawyers are hopeful that earlier review by a federal court will facilitate a smoother process for their clients, they express concerns that immigration judges and the BIA too readily dismiss the risk of torture, and say it shouldn’t be so difficult to get humanitarian relief.

CAT protections, including deferral and withholding of removal, allow noncitizens who aren’t eligible for asylum to remain in the US. To receive protection, a noncitizen must show an immigration judge that if they are deported, it’s more likely than not that they will be tortured with government acquiescence or participation. Unlike asylum, protections under the Convention are mandatory and serious criminal convictions can’t disqualify a noncitizen. But protections are especially difficult to win, said Eleni Bakst, a lawyer at the Capital Area Immigrants’ Rights Coalition.

. . . .

Paul Schmidt, a former immigration judge and chairman of the BIA between and 2001, said the process for evaluating claims under the Convention isn’t scientific. There’s no formula to plug in that will tell the odds of someone being tortured. “It’s sort of in the mind of the beholder,” Schmidt said.

. . . .

As an immigration judge, Schmidt said he and other immigration judges relied heavily on country conditions reports published by the US Department of State. Asked if he believed the reports were an adequate representation of a country, Schmidt said “certainly not.”

Bakst said statistics provided by other countries can also be inaccurate. In El Salvador, the government doesn’t allow monitoring bodies into its prisons so data on inmate torture is incomplete.

Pushing back against questionable reports and statistics, immigration advocates are aware that immigration judges and the BIA may dismiss their client’s risk of torture, and their client may be tortured anyway.

Such was the case for Patrick Julney, a client of CAIR Coalition who was denied deferral under the Convention for failure to show that the likelihood of torture was more than 50% and deported to Haiti. Bakst said that “immediately upon his arrival in Haiti, he was imprisoned and tortured.” Julney was denied access to food, water, and medicine.

Estelle McKee, a clinical immigration law professor at Cornell Law School, represented a schizophrenic man from El Salvador who was denied CAT relief. After his deportation, McKee hired a Salvadorean attorney to track down her client.

She said the attorney couldn’t even enter her client’s village because it was gang-controlled.

“I don’t have much hope that he survived,” McKee said.

McKee and other immigration attorneys agree that the Supreme Court’s decision will speed up the humanitarian claims process, though results may vary. Julney’s case was reviewed by the Third Circuit, but his outcome was unchanged.

. . . .

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

Reads Emily’s full, well-written article at the above link.

A Government colleague once remarked to me that “the U.S. should never have signed the CAT.” Obviously, that private view has permeated and driven USG policy on implementing the CAT, particularly at the DOJ where it was immediately treated as “PNG” because of its lack of exclusionary clauses. Even “bad guys” aren’t supposed to be returned to torture (in terms of legal theory, if not reality).

There is no objective evidence that torture is on the decline worldwide. See, e.g., https://www.amnesty.org/en/what-we-do/torture/. Yet the mandatory protection required by the CAT remains elusive and quite arbitrary within the U.S. legal system.

One of the best examples of how Government officials who should be insuring that the legal protections under CAT are fairly and reasonably applied to achieve the Convention’s purposes are instead promoting an “any reason to deny” culture is former AG John Ashcroft’s precedent decision in Matter of J-F-F-, 23 I&N Dec. 912 (A.G. 2006). There, Ashcroft reversed a CAT grant by the IJ and the BIA to an unrepresented respondent. In the process, Ashcroft established the “enhanced test” that to gain CAT protection, the respondent must “establish that each step in the hypothetical chain of events is more likely than not to happen.”

In other words, this is an official invitation, some might say directive, to IJs to “lengthen the chain of causation until it breaks” (which it inevitably will, in most cases) and protection can be denied.

Moreover, many CAT claims, like this one, involve unrepresented respondents. The chances of an unrepresented respondent understanding the “chain of causation” or what it means to prove “each step is more likely than not to occur” are very slim.

Additionally, even if they did understand, since many of the unrepresented respondents are in detention, they would have little or no realistic chance of obtaining the type of detailed, timely expert testimony and comprehensive documentation, far beyond the DOS Country Reports (which, by the way are only available in English), necessary to overcome Ashcroft’s “de facto presumption of denial” and prove that every step of the “hypothetical chain” is “more likely than not” to happen.

Effectively, every problem mentioned by Emily and expert practitioners in this article is essentially (intentionally) magnified by J-F-F- and other anti-CAT administrative precedents.

CAT relief is mandatory, thus suggesting a high obligation on the part of IJs and other Government officials to insure non-return to torture. Yet, Ashcroft chastises the IJ involved in J-F-F- for essentially insuring that the respondent exercised his legal right to apply for CAT and helping him develop the record. Ashcroft even took the extraordinary step of disqualifying this IJ from any “hypothetical” future proceedings involving this respondent.

At the beginning of the BIA’s quest to interpret CAT (ironically at the same time Bush Administration lawyers at DOJ were secretly searching for legal pretexts to justify torture), I dissented from an unduly restrictive BIA precedent Matter of J-E-, 23 I&N Dec. 291, 304 (BIA  2002), Paul Wickham Schmidt, Board Member, dissenting, joined by Board Members John W. Guendelsberger, Noel Ann Brennan, Cecelia M. Espenoza, and Juan P. Osuna.

There, I stated:

The majority concludes that the extreme mistreatment likely to befall this respondent in Haiti is not “torture,” but merely “cruel, inhuman or degrading treatment.” The majority further concludes that conduct defined as “torture” occurs in the Haitian detention system, but is not “likely” for this respondent. In short, the majority goes to great lengths to avoid applying the Convention Against Torture to this respondent.

We are in the early stages of the very difficult and thankless task of construing the Convention. Only time will tell whether the majority’s narrow reading of the torture definition and its highly technical approach to the standard of proof will be the long-term benchmarks for our country’s implementation of this international treaty.

Although I am certainly bound to follow and apply the majority’s constructions in all future cases, I do not believe that the majority adequately carries out the language or the purposes of the Convention and the implementing regulations. Therefore, I fear that we are failing to comply with our international obligations.

I conclude that the respondent is more likely than not to face officially sanctioned torture if returned to Haiti. Therefore, I would grant his application for deferral of removal under the Convention Against Torture and the implementing regulations. Consequently, I respectfully dissent.

More than two decades after J-E-, my fears and predictions of officially-sanctioned non-compliance with CAT unfortunately continue to be proved correct.

I also note with pride that our Round Table of Former Immigration Judges ⚔️🛡 filed an amicus brief before the Supremes in Santos-Zacaria supporting the interpretation that eventually prevailed.

🇺🇸 Due Process Forever!

PWS

06-01-23

 

Related posts:

  1. REGIME’S NEWEST SCHEME TO SCREW ASYLUM SEEKERS: BOGUS REGS THAT WOULD ILLEGALLY & UNNECESSARILY EXTEND THE GROUNDS OF “MANDATORY DENIAL,” DECREASE ADJUDICATOR DISCRETION, & SHAFT REFUGEE FAMILIES — Regime’s Outlandish “Efficiency Rationale” Fails to Mask Their Cruelty, Racism, Fraud, Waste, & Abuse – Julia Edwards Ainsley (NBC News) & Dean Kevin R. Johnson (ImmigrationProf Blog) Report
  2. PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%!  — Two Items From ImmigrationProf Blog!
  3. 🤮👎🏻EOIR’S CONTEMPT FOR CIRCUITS, UNPROFESSIONAL ABUSE OF EXPERTS, PRO-DHS BIAS EARNS STRONG REBUKE FROM 9TH! — End The Star Chambers!☠️ — No More “Governmental Malpractice” From The New Administration!
  4. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”

🤯 WACKO WORLD OF EOIR: DHS PROSECUTORS DELIVER THE BIG MIDDLE FINGER (“BMF”) 🖕TO GARLAND’S FECKLESS IMMIGRATION “COURTS” — Unilaterally Proclaim They Will No Longer Appear In Every Immigration Court Case (“Selective Appearance”), Apparently Relying On Immigration Judges To Prosecute (In Addition To Being Judge & Jury)! — They Have “Better Things To Do” Than Waste Their Valuable Time In Dem AG’s “Clown Courts!”🤡

Cadaver Synod
PROSECUTORIAL HISTORY: In 897, at the “Cadaver Synod,” Pope Stephen VI appointed himself to prosecute the corpse of his dead predecessor, Pope Formosus. (Spoiler alert: He got a conviction.) In 2023, DHS has decreed that prosecuting cases in person before EOIR is no longer worth their valuable time.
PAINTING: Jean-Paul Laurens (1870) —Public Realm

Provided by a veteran immigration practitioner:

DHS No Appear 1
DHS No Appear 1
DHS No Appear 2
DHS No Appear 2

 *************************

Notably, the four categories of “mandatory appearance” described by the Deputy Chief Counsel apply to only an infinitesimally small percentage of the roughly 2 million cases currently pending before the Immigration Courts.

Compare this with the treatment of the private bar who experience:

* Aimless reshuffling and rescheduling of their already-prepared cases, often without notice or with inadequate notice of the new hearing date;

* Arbitrary and capricious denials by some Immigration Judges of reasonable motions to continue;

* Possible disciplinary referrals for failure to appear at a scheduled hearing when listed as counsel of record.

Would the DOJ submit a similar missive to U.S. District Court Judges unilaterally announcing that they would only “selectively appear” in criminal and civil cases where the U.S. Government is a party? I doubt it!

So, what’s an Immigration Judge who does not want to perform DHS’s job for them to do? Contempt of court, you say? After all, the IJ’s authority to hold any party or counsel in Immigration Court proceeding in contempt is right there in plain language in the INA. See, INA section 240(b)(1).

Ah, but there is a catch! A big one! Although the contempt provision was added by Congress more than a quarter of  century ago, AGs of both parties have steadfastly refused to promulgate the necessary implementing regulations.

Evidently, the theory is that while IJs might be qualified to issue potential death sentences to migrants in Immigration Court, they can’t be trusted to fairly and reasonably use their contempt authority on lawyers who, after all, are mostly U.S. citizens and whose livelihood might be adversely affected. Essentially, the life of a migrant is worth less than a monetary fine for contempt to a U.S. lawyer.

Additionally, there apparently was a special concern about giving IJ’s authority to regulate the conduct of their “fellow Government attorneys” at INS, and later DHS. After all, that would be interfering with another Government agency’s “sacrosanct” authority to regulate and discipline (or not) its own employees.

In many ways, under Garland, the Immigration Courts are losing what limited public respect the might still have possessed and accelerating the move backwards to an “inquisitorial model” to replace the “adversary model” for decison-making. Ironically, this reverses over a half century of efforts by Congress, reformers, and sometimes the Executive itself to make Immigration Courts function as part of the adversary system — in other words, like “real” courts of law.

As one informed expert commenter stated upon learning of this latest development:

As we have all been saying, (1) EOIR doesn’t view itself as part of an ecosystem which also includes ICE, the private bar, non-profits, law school clinics, interpreters, USCIS, etc.; and (2) EOIR is run at it’s upper level by mindless, gutless people suffering from a complete lack of imagination existing in a bubble.

As a practical matter, I assume ICE is strategically choosing not to appear in hearings before IJs who deny everything? If not, it could actually work in your favor. In truth, the UNHCR model doesn’t envision asylum being heard in adversarial hearings; as Paul has articulately stated, it sees asylum as a collaborative effort between adjudicator and asylum seeker.
For a “practical  application” of the “collaborative effort” model promoted by the UNHCR, see Matter of S-M-J-, 21 I&N Dec. 722 (BIAS 1997).

🇺🇸 Due Process Forever!

PWS
05-31-23

Related posts:

  1. ☹️HE BEAT THE GOVERNMENT TWICE IN COURT — But, After Three Years In Jail Without Being Charged With Any Crime, Omar Ameen Still Can’t Get A Bond From Garland’s Courts —  How Can A System Where The Prosecutor Makes The Rules & Picks The Judges, Mostly From The Ranks Of Former Prosecutors, Provide The “Fair & Impartial Judging” Required By Due Process?
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. 🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!
  4. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️

⚖️ DON KERWIN & EVIN MILLET MAKE CASE THAT IMMIGRATION COURT DISASTER GOES FAR BEYOND EOIR:  “The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog!”

Donald M. Kerwin
Donald M. Kerwin, Senior Research Associate, University of Notre Dame

In forwarding this article, Don says: “The report makes the case that the backlog has nothing to do with the immigration courts and everything to do with systemic, unresolved problems in the broader US immigration system.”

Here’s the abstract with a link to the article:

https://journals.sagepub.com/doi/10.1177/23315024231175379

Abstract

The US immigration court system seeks to “fairly, expeditiously, and uniformly administer and interpret US immigration laws” (DOJ 2022a). It represents the first exposure of many immigrants to due process and the rule of law in the United States, and occupies an integral role in the larger US immigration system. Yet it labors under a massive backlog of pending cases that undermines its core goals and objectives. The backlog reached 1.87 million cases in the first quarter of FY 2023 (Straut-Eppsteiner 2023, 6). This paper attributes the backlog to systemic failures in the broader immigration system that negatively affect the immigration courts, such as:

• Visa backlogs, United States Citizen and Immigration Services (USCIS) application processing delays, and other bottlenecks in legal immigration processes.
• The immense disparity in funding between the court system and the Department of Homeland Security (DHS) agencies that feed cases into the courts.
• The failure of Congress to pass broad immigration reform legislation that could ease pressure on the enforcement and court systems.
• The lack of standard judicial authorities vested in Immigration Judges (IJs), limiting their ability to close cases; pressure parties to “settle” cases; and manage their dockets.
• The absence of a statute of limitations for civil immigration offenses.
• Past DHS failures to establish and adhere to enforcement priorities and to exercise prosecutorial discretion (PD) throughout the removal adjudication process, including in initial decisions to prosecute.
• The location of the Executive Office for Immigration Review (EOIR), which oversees US immigration courts, within the nation’s preeminent law enforcement agency, the Department of Justice (DOJ).
• The misconception of many policymakers that the court system should primarily serve as an adjunct to DHS.
• A past record of temporary judge reassignments and government shutdowns.

The paper supports a well-resourced and independent immigration court system devoted to producing the right decisions under the law. Following a short introduction, a long section on “Causes and Solutions to the Backlog” examines the multi-faceted causes of the backlog, and offers an integrated, wide-ranging set of recommendations to reverse and ultimately eliminate the backlog. The “Conclusion” summarizes the paper’s topline findings and policy proposals.

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

This is a “treasure trove” of information about systemic failure of our Immigration Courts, for which I am deeply grateful to Don & Evin.

So, is EOIR a symptom or a cause of immigration dysfunction, or a mixture of both?

I’m inclined to believe that notwithstanding the evidence described in the article that EOIR is largely a “victim” of deeper problems in our immigration system, there is a strong case to be made that more principled Attorneys General, more courageous and talented EOIR personnel, and a Democratic Party with democratic values and a spine could have thrust EOIR into a due process and legal expertise leadership role, thereby making the current immigration system operate more fairly, efficiently, and in the public interest. 

I don’t think that the Democratic Party can continue to use the lack of overall immigration reform, something the current GOP does not want to see and will continue to block, is an excuse for not making the current legal system work better, starting with EOIR. See, e.g., https://immigrationcourtside.com/2023/04/14/%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%87%ba%f0%9f%87%b8-speaking-out-matthew-at-the-border-acting-on-the-message-of-chapter-25/\

It’s a shame that we’ll never know the truth. That just leaves commentators and scholars to analyze the carnage and to speculate on “what might have been” or “what could be” in a different political atmosphere. 

This is perhaps interesting, even significant, from an historical standpoint. But, the practical effect remains to be seen.

If I could have just one immigration “reform, it would be an Article I EOIR! Without due process, all other reforms and improvements are doomed to failure!

🇺🇸 Due Process Forever!

PWS

05-28-23

Related posts:

  1. THE GIBSON REPORT — 02-14-21💝 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Mandatory E-Filing @ EOIR Starts & Lots Of Other “Interesting Stuff!”  — CMS Study Shows How Garland Is Ignoring the “Low Hanging Fruit” On His Out of Control EOIR Backlog! ☹️
  2. FROM THE HEIGHTS OF KASINGA TO THE DEPTHS OF AMERICA’S DEADLY STAR CHAMBERS: Will The Biden Administration Tap The New Due Process Army To Fix EOIR & Save Our Nation? 
  3. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  4. ⚖️🗽🧑🏽‍⚖️👨🏻‍⚖️🇺🇸MUST-READ FOR TEAM GARLAND @ DOJ: ABA COMMISSION ON IMMIGRATION JOINS CALL FOR INDEPENDENT ARTICLE I IMMIGRATION COURT, MAJOR DUE PROCESS REFORMS, END OF WHITE NATIONALIST KAKISTOCRACY @ EOIR! 

⚖️ DISSENTING OPINION: Temporary Appellate Immigration Judge Denise G. Brown Says “No” To Colleagues “Go Along To Get Along” With DHS Enforcement Approach To Chevron In Latest “Crime of Violence” Precedent:  Matter of POUGATCHEV, 28 I&N Dec. 719 (BIA 2023)

Scales of Justice
The BIA’s approach to statutory interpretation under Chevron tends to be one-sided in favor of DHS Enforcement.
IMAGE: Wikimedia Commons

BIA HEADNOTE:

(1) A conviction for burglary of a building under section 140.25(1)(d) of the New York Penal Law is not categorically an aggravated felony burglary offense under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2018), because the statute is overbroad and indivisible with respect to the definition of “building” under New York law.

(2) A conviction for displaying what appears to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm while committing burglary under section 140.25(1)(d) of the New York Penal Law necessarily involves the use, attempted use, or threatened use of physical force against the person or property of another and therefore constitutes an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F).

FOR THE RESPONDENT: Yuriy Pereyaslavskiy, Esquire, Albany, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Donald W. Cassidy, Associate Legal Advisor

BEFORE: Board Panel: GOODWIN and WILSON, Appellate Immigration Judges. Concurring and Dissenting Opinion: BROWN, Temporary Appellate Immigration Judge.

GOODWIN, Appellate Immigration Judge [majority opinion]

Judge Brown’s Dissent:

CONCURRING AND DISSENTING OPINION: Denise G. Brown, Temporary Appellate Immigration Judge

I respectfully dissent from that portion of the majority opinion that holds that second degree burglary under section 140.25(1)(d) of the New York Penal Law is categorically an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(F) (2018). As an initial matter, I have reservations that this case is an appropriate means through which to establish binding precedent on this issue as the Immigration Judge did not reach it. While the parties have had an opportunity to address the issue through supplemental briefing, we lack the benefit of the Immigration Judge’s reasoning. It is our role to “review” questions of law de novo, 8 C.F.R. § 1003.1(d)(3)(ii) (2023), but there is no underlying decision regarding whether the respondent was convicted of an aggravated felony crime of violence for us to review here.

Further, I disagree with the majority’s analysis by which it concludes that a violation of section 140.25(1)(d) of the New York Penal Law is categorically a crime of violence. Section 140.25(1)(d) provides that a person is guilty of burglary in the second degree:

when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when

. . . [i]n effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime

…

. . . [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .

N.Y. Penal Law § 140.25(1)(d) (McKinney 2017). A crime of violence under section 101(a)(43)(F) of the INA, 8 U.S.C. § 1101(a)(43)(F), is “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a) (2018).

I disagree with the majority that second degree burglary under section 140.25(1)(d) includes as an element the use, attempted use, or threatened use of physical force against another person. In my view, second degree burglary under section 140.25(1)(d) does not include any element that requires the presence of a person other than the defendant. In the absence of an element that requires the presence of a person, the majority’s conclusion that this offense is a crime of violence is unavailing. See Borden v. United States, 141 S. Ct. 1817, 1825 (2021) (“The phrase ‘against another,’ when modifying the ‘use of force,’ demands that the perpetrator direct his action at, or target, another individual.”).

The majority’s analysis heavily relies on case law involving robbery to support its conclusion that second degree burglary under this subsection is a crime of violence. But under New York law, robbery always involves forcible stealing from a person and burglary does not. In United States v. Ojeda, 951 F.3d 66, 71 (2d Cir. 2020), the Court of Appeals for the Second Circuit rejected the defendant’s argument that it was possible to commit New York first degree robbery with the aggravating factor of the display of an

730

Cite as 28 I&N Dec. 719 (BIA 2023) Interim Decision #4063

apparent weapon without the use, attempted use, or threatened use of physical force. The court held that the defendant’s argument ignored the foundational element being aggravated, i.e., forcible stealing, which is defined in New York to include the use or threatened immediate use of physical force upon another person. Id. at 72. Forcible stealing is an element for every degree of robbery in New York and “that element categorically requires the use of physical force.” Id. Thus, New York robbery always includes as an element the use or threatened use of physical force against another person, regardless of whether an apparent weapon is displayed. Accordingly, the New York robbery statutes are distinguishable from the burglary statute at issue here, and thus the case law relied upon by the majority relating to robbery is not persuasive in this context. For the same reason, the case law cited by the majority relating to assault is likewise unpersuasive.

The majority also relies on the definition of “display” in the New York model jury instructions to conclude that a display of an apparent weapon must be in front of a person. The majority concludes that “display” in the context of section 140.25(1)(d) necessarily means a conscious display of an apparent weapon to a victim. “Display” as described by the model jury instructions does not constitute the use, attempted use, or threatened use of physical force against another person because, as the Supreme Court explained in Borden, “against the person of another” means “in opposition to” and expresses “a kind of directedness or targeting” rather than being akin to “waves crashing against the shore.” Borden, 141 S. Ct. at 1825–26. However, the language of the model jury instructions—i.e., describing display to be “manifest[ing] the presence of an object that can reasonably be perceived” as a weapon—does not require the type of directedness or targeting described in Borden. N.Y. Crim. Jury Instr. & Model Colloquies, Penal Law § 140.25(1)(d) (May 2018). The language instead appears to contemplate that a person be “the mere recipient” of the display. Borden, 141 S. Ct. at 1826.

Even if the majority’s conclusion were correct that display of an apparent weapon necessarily contemplates the presence of a person to perceive it and that it necessarily involved conduct directed at another person as contemplated by Borden—a conclusion not supported by the actual language of section 140.25(1)(d)—there is nothing in the statute that requires the person perceiving the display to be the victim of the crime, rather than a bystander or another defendant.

The majority’s conclusion that an offense under section 140.25(1)(d) is categorically a crime of violence also assumes that the crime a defendant intends to commit is necessarily a “confrontational crime.” But there is nothing in the statute that connects the display of an apparent weapon with

731

Cite as 28 I&N Dec. 719 (BIA 2023) Interim Decision #4063

the crime the defendant has “intent to commit [in the building],” and thus nothing in the statute that requires the crime a defendant has “intent to commit [in the building]” to be a confrontational crime, as the majority concludes. N.Y. Penal Law § 140.25.

For these reasons, I am not persuaded by the majority’s conclusion that an offense under section 140.25(1)(d) of the New York Penal Law is categorically a crime of violence. I would instead conclude that it is not and that therefore the respondent is not removable as charged.

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

Thanks for speaking out, Judge Brown, against the BIA’s one-sided approach to statutory interpretation that almost always favors DHS over better and more reasonable interpretations offered by individuals. Then, the Article III Courts compound the problem by giving “Chevron deference” to the BIA’s one-sided jurisprudence! 

Dissent matters!

Here’s Judge Brown’s official EOIR bio:

Denise G. Brown

Attorney General Merrick B. Garland appointed Denise G. Brown as a temporary Appellate Immigration Judge in July 2021. Judge Brown earned a Bachelor of Arts in 1992 from the University of Michigan, Ann Arbor, and a Juris Doctor in 1995 from the Catholic University of America. From July 2007 to July 2021, she has served as an attorney advisor, Board of Immigration Appeals, Executive Office for Immigration Review. During this time, from March to September 2019, she served on detail as a Special Assistant U.S. Attorney, U.S. Attorney’s Office, Eastern District of Virginia, and from January to July 2017, she served on detail as a temporary Immigration Judge at the Headquarters Immigration Court, EOIR. From December 1999 to July 2007, she served as an Associate General Counsel at the Office of General Counsel, Department of the Air Force. Judge Brown is a member of the District of Columbia Bar.

🇺🇸 Due Process Forever!

PWS

05-27-23

Related posts:

  1. THIRD CIRCUIT FINALLY EXPOSES THE BIA AS A BIASED, UNPROFESSIONAL, UNETHICAL MESS, THREATENING INDIVIDUALS WITH TORTURE &/OR DEATH IN VIOLATION OF DUE PROCESS AND HUMAN RIGHTS:  In Sharp Contrast To Recent “Go Along To Get Along” Actions By The Supremes, 9th, 5th, 11th, and 4th Circuits, Circuit Judges McKee, Ambro and Roth Stand Up & Speak Out On BIA’s Unbelievably Horrible Performance: “I think it is as necessary as it is important to emphasize the manner in which the BIA dismissed Quinteros’ claim that he would be tortured (and perhaps killed) if sent back to El Salvador. For reasons I will explain below, it is difficult for me to read this record and conclude that the Board was acting as anything other than an agency focused on ensuring Quinteros’ removal rather than as the neutral and fair tribunal it is expected to be. That criticism is harsh and I do not make it lightly.”
  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. 🆘🤮IS 11TH CIR. GROWING WEARY OF GARLAND’S SCOFFLAW BIA? —Two Trips To The Circuit, & The BIA Still Violates Own Regulations, Ignores Precedent, Spouts Gibberish While OIL’s Defense Of This Nonsense & Malfeasance By EOIR Raises Serious Ethical Questions! — THAMOTAR v. U.S. ATT’Y GEN. — Garland’s Dysfunctional & Systematically Unjust Courts Undermine OUR Democracy☠️ — Demand An IMMEDIATE End To The Scofflaw Nonsense🤡 🧹 At OUR Justice Department! 🏴‍☠️
  4. 🇺🇸⚖️🗽👩🏻‍⚖️ ROUND TABLE WEIGHS IN @ SUPREMES ON UNCONSTITUTIONAL VAGUENESS OF “CRIME INVOLVING MORAL TURPITUDE!” — With Lots of Help From Our Friends @ Georgetown Law Appellate Courts Immersion Clinic! — Daye v. Garland

⚖️🗽 ATTENTION GEORGETOWN LAW STUDENTS: There’s Still Time To Register For “Immigration Law & Policy,” A “Compressed Semester 2-Credit Course” May 30 – June 1! — Learn About The Law & Reality Behind The Most Important, Most Misunderstood & Mis-portrayed Issue In American Law & Society Today — “The Fastest & Most Action-Packed  2 Credits In Legal Education!” — Your ONLY chance in 2023!

PWS
PWS

This class will cover the constitutional and political framework for the U.S. Immigration System, enforcement and adjudication agencies, immigrants, nonimmigrants, removals and deportations, detention and bond, immigration hearings, judicial review, grounds for removal and inadmissibility, “crimmigration,” immigration reform, “Chevron” deference, refugee and asylum status and other international protections. It will also include analyzing major immigration cases like INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (well-founded fear) and Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996) (female genital mutilation).

Immigration Law and Policy

Meets:

TTh 2:00-5:05p

Instructor:

P. Schmidt

Meets:

TTh 2:00-5:05p

Instructor:

P. Schmidt

Search Criteria

  • Search course, faculty, or keyword: law 037 v02

  • Term: Summer 2023

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

    🇺🇸Due Process Forever!

PWS

05-25-23

Related posts:

  1. ⚖️🗽🛡RECOGNIZING WOMEN REFUGEES: Professor Karen Musalo @ ImmigrationProf Blog — Don’t Add A “6th Protected Ground” To The Statute; Get Some Better-Qualified Judges 🧑🏽‍⚖️ Who Will Respect & Follow Existing Law To Protect Those Already Covered, But Wrongfully Denied Refuge By Bad Judging & Restrictionist Policies!
  2. THE SADNESS OF PROPHECY WITHOUT POWER: Two Years Ago, I Gave A Speech Warning Of The Consequences Of “1939 Germany” — Now, We’re In “Germany 1938” With 1939 Just An Election Away! — Moscow Mitch, Lindsey The Toad, Texas Ted & The Rest Of The GOP Fellow Travelers & Cultists Would Be Right At Home With Franz van Papen!
  3. 🏴‍☠️THE PROBLEM @ THE BORDER ISN’T THAT BIDEN HAS  SOFTENED TRUMP’S RACIST, WHITE NATIONALIST, SCOFFLAW RHETORIC! — IT’S THAT BIDEN, GARLAND, & MAYORKAS HAVE FAILED TO RESTORE A ROBUST ASYLUM SYSTEM AT LEGAL PORTS OF ENTRY, STAFFED WITH EXPERT ASYLUM OFFICERS & QUALIFIED IMMIGRATION JUDGES WHO WILL GRANT ASYLUM TO THOSE QUALIFIED, END IDIOTIC TRUMP-ERA MISINTERPRETATIONS & MIS-APPLICATIONS OF ASYLUM LAW, AND ARE DEDICATED TO DUE PROCESS FOR ALL! — Administration’s  Misguided “Trump Lite” Approach Continues To Create Human Misery,☠️⚰️ Trash The Law, 🤮 Without Addressing The Real Problems Generated By Years Of “Malicious Incompetence” 🤡🆘 In U.S. Asylum & Refugee Policies!  — Jack Herrera Reports From The Border For Politico!
  4. 🤮👎🏽ULTIMATE HIPOCRACY: EVEN AS AMERICA FINALLY CELEBRATES JUNETEENTH HOLIDAY, DRED SCOTT & INSTITUTIONALIZED RACIST DEHUMANIZATION REMAIN REALITIES FOR BLACKS & OTHER MIGRANTS OF COLOR AT EOIR & DHS — Imprisonment Without Trial, Bogus Bonds, Mistreatment In The New American Gulag, Jim Crow “Courts,” No Rule Of Law,  Still Realities For Those Of Color Exercising Legal Rights In Broken System!

⚖️🗽🇺🇸 REP. HILLARY SCHOLTEN (D-MI) AMONG THE SPONSORS OF BIPARTISAN IMMIGRATION REFORM BILL — But, GOP Leadership Isn’t Interested In Problem-Solving!😎

Rep. Hillary Scholten (D-MI)
Credit: Ike Hayman
SOURCE: Wikipedia

By Marianna Sotomayor and Theodoric Meyer for WashPost:

https://www.washingtonpost.com/politics/2023/05/23/congress-immigration-legislation/

A bipartisan duo of Hispanic women Tuesday introduced the most robust immigration proposal to date this Congress, a significant collaboration as a new generation of lawmakers pushes for meaningful reform of the nation’s immigration system after decades of failed attempts.

For six months, Reps. Maria Elvira Salazar (R-Fla.) and Veronica Escobar (D-Tex.) have been quietly negotiating on key issues where Republican and Democrats have previously sought changes, while leaning on their lived experiences as lawmakers representing border districts with majority Hispanic constituencies.

The result is a roughly 500-page bill called the Dignity Act that, among other things, would provide billions of dollars for border security measures, create pathways to citizenship for some undocumented migrants already in the United States, update the legal immigration process, and establish “humanitarian campuses” on the U.S. border that would process asylum claims in 60 days.. . . . .

Salazar and Escobar were joined at a news conference Tuesday by four original co-sponsors who are all women: Reps. Hillary J. Scholten (D-Mich.), Kathy E. Manning (D-N.C.), Lori Chavez-DeRemer (R-Ore.) and Del. Jenniffer González-Colón (R-Puerto Rico.). Rep. Michael Lawler (N.Y.), a vulnerable Republican representing a Democratic-leaning district, signed onto the measure late Monday and also attended. Rep. Adriano Espaillat (D-N.Y.) also signed on Tuesday.

. . . .

The bill’s introduction comes after House Republicans passed a border security bill this month along party lines; House Republican leaders have said since last year that consideration of a large-scale immigration overhaul would not happen until a border security plan had passed the chamber.

Asked whether broad immigration legislation could be considered this year, Majority Leader Steve Scalise (R-La.) appeared to suggest last week that it would not happen until a border security plan is signed into law.

“We’ve got to first start with border security,” he said, before adding that it would mean getting such a bill to the president’s desk. “If we get that done, then you can start talking about the interior problems that exist.”

. . . .

“Nothing is off the table,” Salazar said when asked about the prospects of a discharge petition, a procedural effort that would allow them to bypass the regular pathway for a bill to reach the floor.

Escobar then responded, “All it takes to make this happen is 218 people in the House of Representatives saying that they’re ready for a real solution.”

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

Read the complete article at the above link.

The myth that “border security” is unrelated to taking a more practical, humane, and realistic approach to migration generally shows how determined GOP leadership is NOT to address immigration problems in a fair and constructive manner and to “tune out” those interested in a potential bipartisan solution.

For those who don’t already know her, Rep. Hillary Scholten is, to my knowledge, the only EOIR attorney ever elected to Congress and has, therefore, seen how broken and in need of reform our system is at the “grass roots level.” So, her support of this measure is very significant.

Here’s a summary of the bill, known as “The Dignity Act of 2023:”

https://escobar.house.gov/UploadedFiles/The_Dignity_Act_of_2023_One_Pager.pdf

I haven’t seen the full text of the bill. But, from my perspective, the most disappointing aspect of this effort is the apparent failure to deal with the #1 most “solvable” and long, long overdue aspect of due process and fundamental fairness affecting immigration and the overall U.S. legal system: Creation of an independent, Article I U.S. Immigration Court focused solely on due process, fundamental fairness, and best practices!

🇺🇸 Due Process Forever!

PWS

05-24-23

 

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