"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
This Article posits that the United States treats asylum as exceptional, meaning that asylum is presumptively unavailable and is offered only in rare cases. This exceptionality conceit, combined with an exclusionary apparatus, creates a problematic cycle. The claims of asylum seekers arriving as part of wide-scale refugee flows are discounted, and restrictive policies are adopted to block these claims. When the claims mount anyway, the United States asserts “crisis” and deploys new exclusionary measures. The problems created by the asylum system are not addressed but instead deepen. The Article commends a turn away from policies that have led down the same paths once and again.
The Article first describes the development of the modern U.S. asylum system, highlighting data demonstrating that the system has exceptionality as a basic feature. In doing so, the Article reconsiders an assumption underlying much scholarship that the U.S. asylum system is fundamentally a generous one even if it has sometimes failed to live up to its promise. The Article then establishes that the emphasis on exceptionality has led to an exclusionary asylum process, which mostly takes place in the context of deportation proceedings and layers on additional procedural barriers. Next, the Article documents how the system places genuine refugees in danger while causing violence at the border. Further, embedded bias in the system, resulting from the focus on exceptionality, creates a legitimacy problem. The system discredits commonly-arising claims from neighboring nations, particularly Central America, while favoring asylum seekers from distant nations such as China. The system also violates international human rights and refugee law.
The Article concludes by offering suggestions for more stable, effective, and humane policies to address refugee arrivals in the United States. In addition to eliminating many existing substantive restrictions on asylum, the system should incorporate presumptions of asylum eligibility for applicants from designated nations or situations that are sending significant refugee flows. In addition, the United States should adopt a specialized non-adversarial asylum system for all cases, apart from the deportation system and with genuine independent review of denials of asylum.
******************
Read the complete article at the link.
You’ve “hit the nail on the head,” Denise!Unhappily, those in charge, in both parties, are “wedded” to variants of “rejection theory.” Unless and until that changes, our refugee policies will continue to struggle and fail.
Indeed, quite discouragingly, the “answer” of the Biden Administration to virulent, racist attacks on refugees and other vulnerable populations, is basically to abandon human rights to the GOP White Nationalists by “killing” refugee and asylum laws, dissing advocates, ignoring experts, and adopting a more or less “randomized,” politicized, extralegal, and restrictionist approach to refugees.
The “leading” GOP presidential candidates bash and demean refugees, immigrants, LGBTQ individuals, women, the poor, on an almost daily basis. When is the last time you heard Biden or any other Administration official aggressively defend the rights of refugees and asylees and tout their value and contributions to America?
It’s pretty much what our approach was in the 1970’s, prior to the Refugee Act of 1980. “Back to the future,” in more ways than one!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up” — Help get this poor little guy back on his feet! He’s been down far too long!Don’t just complain about the awful mess @ EOIR! Get on the bench and do something about it! Public Domain
Contact: Communications and Legislative Affairs Division Phone: 703-305-0289 PAO.EOIR@usdoj.gov
www.justice.gov/eoir @DOJ_EOIR March 13, 2023
EOIR to Host Recruitment Outreach Sessions Join Us to Learn How to Become an Immigration Judge
SUMMARY: The Executive Office for Immigration Review (EOIR) is looking for qualified candidates from all backgrounds to join our immigration judge corps. Interested parties are invited to attend an information session where senior EOIR staff will discuss the immigration judge career path, duties, qualifications, and benefits of being an immigration judge. You will learn how to apply for immigration judge positions when they become available and have the opportunity to ask questions about the immigration judge position and application process. Please join us for one of the sessions below.
March 16, 2023
March 23, 2023
March 30, 2023
Noon – 1 p.m. Pacific Time Noon – 1 p.m. Central Time Noon – 1 p.m. Eastern Time
“I was working at the Justice Department on immigration issues largely related to enforcement, figuring out how to make our laws more just, more fair, more humane. . . . But the Board of Immigration Appeals also has jurisdiction over dealing with regulations. It’s the highest administrative agency dealing with immigration issues—not only one-off cases, but we set national precedent for things like asylum, dealing with children who are detained in the United States. It’s a very powerful agency. Not a lot of people realize how much influence it has. And so that’s significant because when Trump was elected, we saw such a marked change in the direction of the work, where the focus of the policies seemed to be cruelty for the point of cruelty. And I couldn’t continue to work there and uphold my oath to protect and defend the Constitution, let alone maintain my own moral compass. And so I took a stand and I left.”
Rep. Hillary Scholten (D-MI) Visit Creator: Ike Hayman Credit: Ike Hayman SOURCE: WikipediaMary Harris Host & Managing Editor What Next PHOTO: Slate.com
Not just a thing of the past. Unsplash [In fact, it’s Arkansas GOP Gov. Sarah Huckabee Sanders’s “vision of the future” now that she has eliminated those pesky “burdensome and obsolete” child labor laws!]BY MARY HARRISMARCH 09, 20233:40 PMCongresswoman Hillary Scholten remembers exactly where she was when she realized her new job on Capitol Hill was about to get a lot more complicated. “My heart just sank,” she said. “I couldn’t believe what I was reading.”Scholten was reading the New York Times, a big investigation into immigrant child labor. The very first anecdote in this 5,000-word opus is about a 15-year-old girl bagging cereal on the graveyard shift in the Hearthside Food Solutions plant in Grand Rapids, Michigan. Scholten is a third-generation Michigander. She’s from Grand Rapids. And it wasn’t just that companies in Scholten’s hometown were employing kids. It was that many of these kids seemed to be living without their parents. And a lot of them were falling asleep in school because they had full-time jobs. The machines they were working on? They had been known to slice off workers’ fingers.Congresswoman Hillary Scholten remembers exactly where she was when she realized her new job on Capitol Hill was about to get a lot more complicated. “My heart just sank,” she said. “I couldn’t believe what I was reading.”Scholten was reading the New York Times, a big investigation into immigrant child labor. The very first anecdote in this 5,000-word opus is about a 15-year-old girl bagging cereal on the graveyard shift in the Hearthside Food Solutions plant in Grand Rapids, Michigan. Scholten is a third-generation Michigander. She’s from Grand Rapids. And it wasn’t just that companies in Scholten’s hometown were employing kids. It was that many of these kids seemed to be living without their parents. And a lot of them were falling asleep in school because they had full-time jobs. The machines they were working on? They had been known to slice off workers’ fingers.
“Especially as an attorney who has worked on these issues her entire career, it felt like a personal attack,” Scholten said.
On Wednesday’s episode of the show, I spoke with the former immigration attorney–turned–congresswoman about the broader powers she has now that’s she in D.C. and whether she will be able to use them. Our conversation has been condensed and edited for clarity.
Mary Harris: Rep. Hillary Scholten says the nuances of immigration have always been important to her. Before she was an attorney, she worked as a migrant advocate. But once she got her law degree, she took that experience one step forward, joining the DOJ.
Hillary Scholten: I was working at the Justice Department on immigration issues largely related to enforcement, figuring out how to make our laws more just, more fair, more humane.
You were working on immigration appeals, right?
Yeah, exactly. But the Board of Immigration Appeals also has jurisdiction over dealing with regulations. It’s the highest administrative agency dealing with immigration issues—not only one-off cases, but we set national precedent for things like asylum, dealing with children who are detained in the United States. It’s a very powerful agency. Not a lot of people realize how much influence it has. And so that’s significant because when Trump was elected, we saw such a marked change in the direction of the work, where the focus of the policies seemed to be cruelty for the point of cruelty. And I couldn’t continue to work there and uphold my oath to protect and defend the Constitution, let alone maintain my own moral compass. And so I took a stand and I left.
Scholten soon got a new job at the Michigan Immigrant Rights Center. But almost as soon as she arrived, her work—and the work of many other immigration attorneys across the country—was thrown into chaos. Things got especially bad as it became clear the Department of Homeland Security was separating migrant children from their parents at the border, leaving lawyers and advocates to figure out what to do next. That’s when Hillary Scholten started seriously considering a run for Congress.
At the height of the family separation crisis, our agency was responsible for helping reunite and represent so many children. Imagine a legal services waiting room that turned into a virtual day care center overnight with kids who didn’t know where their parents were. And there were a lot of reasons I raised my hand to run, but no doubt I can pinpoint the moment when I was like, “Oh, hell no, I got to do more.” It’s the height of the summer. My dear husband came to visit me at work. It was going to be a late night, and he brought me an iced coffee. And we were chatting, and we walked through our waiting room. He’s normally a pretty stoic guy, and he fell silent. And I turned and looked at him, and his eyes had just filled with tears. And I realized that we had walked past a set of three siblings, all dressed in their Sunday best, between the ages of 5 and 7. That’s how old our children were at the time. And he just said, “Hill, you see this stuff on the news. It is an entirely different level to look these children in the eye.”
One of our youngest clients was separated from his parents at 4 months old. You’re not just walking away from a parent. You’re being taken from their arms.
Five years later, this investigation by the New York Times has Scholten thinking about different ways to help migrant children. Just this past weekend, she returned to her district to connect with constituents and think about how she can intervene, now that her community’s child labor problem is no longer a secret. She can already see the way the news has rippled outward.
One of the saddest things about the fallout of all of this is that there has continued to be some real discontent within the immigrant communities here, where shining a light on the exploitation of children has also shined a light on the fact that there have been so many other individuals working without authorization in these factories. And as companies have started to look into who’s actually working here, their labor pool has vanished. Hearthside, after the Times ran the investigation, said they were going to be doing inspections on the manufacturing floor, and 75 percent of their workforce didn’t show up the next day.
. . . .
**************************
Read/listen to the full interview at the above links.
As Hillary says, the BIA is “a really powerful agency.” That’s exactly why the Trump Administration “packed” it with unqualified restrictionist “Appellate Judges” known for their anti-asylum bias and astronomical asylum denial rates!
That’s also why Biden, Harris, and Garland’s near-complete failure to “clean up the BIA” and the rest of the failed EOIR “judiciary” and bring in the “best legal minds in the business” to establish a model progressive expert judiciary is such a scandal and indicator of the repeated failure of Dem Administrations to take advantage of the transformational opportunities given them.
By contrast, whether we like it or not, the far right extremist GOP knows exactly how important the Immigration Courts are and accordingly acts decisively to weaponize, pack, “dumb down,” and co-opt them in their nativist battle to dehumanize and demonize migrants. This was a key “first step” in the GOP’s attack on all of the “others” in America! Transgender youth, African Americans, women, Asian Americans, Hispanic Americans, and others being targeted by the GOP’s nationwide assault on their rights, humanity, and the truth about our history might look to the Biden Administration’s fecklessness in dealing with immigrants’ rights and human rights to understand how they are being “left out on a limb” by a Dem Administration — more interested in its re-election than in serving those who helped put them in office.
Hillary had the guts and moral courage to take a stand. Yet, Biden, Harris, Garland, Mayorkas and others in this Administration, not so much! Frankly, that’s appalling! 🤮
“It is an entirely different level to look these children in the eye.” This encapsulates the problems of immigration, human rights, child abuse, and racial injustice! Unlike Hillary, very few legislators, Federal Judges, Biden politicos, or GOP nativist Governors and AGs have ever had to get their “hands dirty” by “looking . . . in the eyes” of children and others whom they abuse, dehumanize, and bully on a regular basis!
Attribution: ROLLING BACK CHILD LABOR PROTECTIONS by Randall Enos, Easton, CT Republished under license.
Contrast Hillary’s “hands on” experience and search for bipartisan practical solutions with the predictable stupidity and abuse by GOP Arkansas Governor Sarah Huckabee Sanders, a living incarnation of the “Peter Principle,” who recently and gleefully signed into law an insane provision reducing child labor protections in Arkansas while incredibly claiming that protecting children was “burdensome and obsolete!”
The law eliminates requirements for the state to verify the age of children younger than 16 before they can take a job.
Sanders believes the provision was “burdensome and obsolete,” spokeswoman Alexa Henning said in an emailed statement.
Ark. Gov. Huckabee Sanders’s MAGA “child welfare plan” has its Anglo-Saxon roots firmly planted in the famous British workhouses that many GOP politicos admire! Public Realm
As part of their “willful blindness” to the deterioration of American democracy, the so-called “mainstream media” often likes to falsely portray GOP Governors as presenting a “saner” alternative to America’s leading liar/insurrectionist “The Donald.” But, as Sanders, DeSantis, Abbott, Youngkin, and others remind us on a regular basis, there are some REALLY BAD GOP Governors out there who are every bit as much a threat to America’s future as Trump!
Immigration Court can be a daunting experience even for veteran litigators. For folks like this, alone with no representation, it’s “mission impossible.” Yet Biden A.G. Merrick Garland has done little to fix the systemic “user unfriendliness” and sometimes outright hostility to pro se litigants in his totally dysfunctional “courts in name only!” (“CINOs”). PHOTO: Victoria Pickering, Creative Commons License
Clearly, gimmicks rolled out by Garland and the Biden Administration, including stunts like “dedicated dockets,” “expedited dockets,” “Aimless Docket Reshuffling,” detention courts in the middle of nowhere, unregulated bond procedures, lousy precedents, wasteful litigation against practitioners, proposed regulations irrationally “presuming” denial of asylum, abuse of Title 42, assigning asylum seeker resettlement to GOP nativists like DeSantis and Abbott, and refusal to bring in qualified experts with Immigration Court experience to fix this disasterous system have made the already horrible plight of the unrepresented worse! See, e.g.,https://trac.syr.edu/immigration/reports/674/.
With respect to DHS detainees awaiting hearing, a few are subject to so-called “mandatory detention without independent review” as a result of statutes. Others are imprisoned because ICE claims that they are so-called “arriving aliens” (a designation that even some IJs struggle with, but that has huge consequences for a respondent), “likely to abscond,” or ”security risks!”
But, a significant “unstated purpose” of immigration detention, often in substandard conditions, is to coerce detainees into giving up legal rights or waiving appeals and to punish those who stubbornly insist on asserting their rights.
When the almost inevitable “final order of removal” comes, officials in Administrations of both parties believe, without much empirical evidence, that detainees will serve as “bad will ambassadors,” carrying back woeful tales of wonton cruelty and suffering that will “deter” others from darkening the doors of “the world’s most generous nation.”
In spite of this overall “institutionalized hostility,” there is a small, brave cadre of “due process/fundamental fairness heroes” known as the Office of Legal Access Programs, or “OLAP” at EOIR!Forced into “the darkest corners of the EOIR Tower dungeon” during the reign of terror of “Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr, they have finally been released into daylight.
The Dungeon Former A.G. Jeff “Gonzo Apocalypto” Sessions had a special place in the EOIR Falls Church Tower for those trying to assist pro se litigants in Immigration Court. Public Realm
But, make no mistake about it — these courageous folks at OLAP aren’t helping to “drive the train” at EOIR under Biden and Garland, as they certainly should be! No, as was the case before Trump, they are racing down the station platform to catch the train as it departs without them.
How do I know? It’s actually pretty obvious. If Garland & the Administration were actually serious about promoting representation, they would:
Require a positive report from the OLAP before opening any new Immigration Court;
Subject all existing detained “courts” (that aren’t really “courts” at all, within the common understanding of the term) to an OLAP analysis, involving input from the pro bono bar, and close any location where pro bono counsel can’t be made reasonably available to all detainees who want it;
Make part of the IJ hiring process input from the OLAP and the public into the demonstrated commitment of each “finalist” for an Immigration Judge position to working to maximize representation; and
Work with outside programs like Professor Michelle Pistone’s innovative “VIISTA Villanova Program” for training accredited representatives to “streamline and expedite” the Recognition & Accreditation process housed within OLAP.
To my knowledge, none of these obvious “first steps” to address the representation crisis at EOIR have been instituted. Tells us about all we need to know about the real importance of the OLAP in Garland’s galaxy.
Recently, I had the pleasure of meeting with Alicia de La O, her attorneys, and interns at the ABA who are helping the OLAP “staff” the “pro se hotlines” for detainees in immigration proceedings. Of course, they can’t provide “legal advice,” although they can direct pro se litigants to available “self help” materials prepared by OLAP and reliable pro bono NGOs. But, as I pointed out, just being available to speak with isolated detainees, listen sympathetically, and direct them to available resources is a “big deal” from both a human and a practical perspective.
Alicia de la O Senior Attorney/Chief Counsel, ABA Commission on Immigration PHOTO: Linkedin
Remarkably, the amazingly talented, informed, and energetic undergraduate internsworking with the ABA had a far better understanding of the corrosive effect on democracy and America’s future of the mocking of due process, fundamental fairness, racial justice, and human dignity in Immigration Courts than inept and often clueless Biden Administration so-called “immigration policy officials” have acknowledged with their words and deeds. Indeed, one of the undergraduate interns had already completed the VIISTA program. He therefore probably knows more about the Immigration Courts at the “retail level” than some of the clowns Garland has running EOIR!
The energy and commitment of these interns to take on existential challenges that our “leaders” from both parties have shunned, gave me some hope for America’s future. That is, if democracy can survive the overt attacks from the right and its tepid defense by Democrats, by no means an assured outcome.
This opportunity to meet with those working on the front lines of helping the most isolated, vulnerable, and intentionally neglected among us got me thinking about what I might say to a pro se litigant stuck in the “EOIR purgatory,” based on my experience. I note, with some pride, that during my time on the trial bench, almost every pro se individual who wanted to appeal one of my orders was able to file timely with the BIA based on the detailed instructions I gave them at the end of the hearing.
So, as promised, here’s “my list!”
PRO SE CHECKLIST
Judge (Ret.) Paul Wickham Schmidt
March 1, 2023
1) Be careful in filing out the I-589. Everything in the application, including mistakes, omissions, and failure to answer questions can be used AGAINST you at the hearing. Filing a fraudulent application can have severe consequences beyond denial of your case.
2) Do NOT assume that significant omissions or errors in the I-589 can be corrected or explained at the hearing without adverse consequences.
3) If you use a translator, ask that the application be read back to you in FULL for accuracy, before signing. Generally, there is no such thing as an “insignificant error” on an asylum application. All inaccuracies can and will be considered by the IJ in determining whether you are telling the truth.
4) Obtain any relevant documentation supporting the claim and attach to the application. All documents in a foreign language MUST be translated into English. A certificate of accuracy from the translator must also accompany the document. DO NOT expect the court interpreter to translate your documents during the hearing.
5) Understand NEXUS to a “protected ground;” merely claiming or even proving that you will suffer harm upon return is NOT sufficient to win your case; many pro se cases fail on this basis.
6) Any pro se case claiming a “Particular Social Group” will need help in formulating it. Do NOT expect the IJ or ACC to assist in defining a qualifying PSG.
7) Keep a copy of the application and all evidence submitted.
8) Sign your application.
9) Make sure that the original signed copy goes to the Immigration Court and a copy to the ACC.
10) Keep documents submitted by ICE or the Immigration Court.
11) Do NOT rely on your translator, friends, relatives, or “jailhouse lawyers” for advice on filling in the application. NEVER embellish or add incorrect information to your I-589 just because someone else tells you to or says it’s “the only way to win your case.”
12) DO NOT let friends, detention officers, the IJ or anyone else (other than a qualified lawyer working for you) talk you out of pursuing a claim if everything in it is true. You must “tune out chatter” that everybody loses these cases, and therefore you are wasting your time.
13) Do NOT tell the IJ and/or ACC that everything in your application is true and correct if it is not true!
14) If you discover errors in your application before the hearing, ask the IJ at the beginning of the hearing for an opportunity to correct them. Do NOT wait to see if the ACC brings them up.
15) If you will be testifying through an interpreter, ask the IJ for a brief chance to converse with the interpreter before the hearing to make sure you understand each other. If there is any problem, tell the IJ BEFORE the hearing begins.
16) The Immigration Court hearing is a formal, adversary hearing, NOT an “informal interview” like the Asylum Office.
17) Be courteous and polite to the Immigration Judge, the ICE Assistant Chief Counsel, and the interpreter at all times, BUT BE AWARE:
1) The IJ and the ACC are NOT your friends;
2) They do NOT represent your interests;
3) The ACC’s basic job is to urge the IJ to deny your application and enter an order of removal;
4) The IJ is NOT an independent judge. He or she works for the Attorney General a political enforcement official. Some IJs function with a reasonable degree of independence. But, others see themselves largely as assisting the ACC in in denying applications and rapidly turning out removal orders.
5) The interpreter works for the court, NOT you.
18) YOU will be the only person in the courtroom representing your interests.
19) Don’t answer a question that you don’t understand. Ask the IJ to have it repeated. If it is a complicated question, ask the IJ if it can be broken down into distinct parts.
20) If you really don’t know the answer to a question, don’t “guess!” “I don’t know, your honor” is an acceptable answer, if true.
21) If the ACC introduces evidence at the hearing — say a copy of the Asylum Officer’s notes — ask the IJ for a full translation through the interpreter before answering questions.
22) If documents you submitted support your claim, direct the IJs attention to those documents.
23) When it is time for the IJ to deliver an oral decision, make sure that you are allowed to listen through the interpreter.
24) Bring a pencil or pen and a pad of paper to the hearing. Try to take notes on the decision as it is dictated by the IJ.
25) If the decision goes against you, tell the IJ that you want to reserve an appeal and request copies of the appeal forms. You can always withdraw the appeal later, but once an appeal is waived it is difficult, often impossible, to restore it.
26) If the IJ rules in your favor, and the ACC reserves appeal, understand that the order in your favor will have no effect until the appeal is withdrawn or ruled upon by the BIA. For detained individuals, that probably means remaining in detention while the appeal is resolved, which might take months.
27) If you appeal, fill out the forms completely according to instructions and file with the BIA as soon as possible, the same or next day if you can. That is when your memory will be best, and it maximizes the chance of the BIA receiving your appeal on time. Do NOT wait until the last minute to file an appeal.
28) Be SPECIFIC and INCLUSIVE in stating why you think the IJ was wrong. Attach a separate sheet if necessary. Just saying “The Judge got it wrong” or “I disagree with the decision” won’t be enough and might result in the BIA rejecting your appeal without further review.
29) Remember to file the separate fee waiver request form with the Notice of Appeal.
30) Assume that all filing deadlines will be strictly applied and that pro se applicants will NOT be given any breaks or special treatment, despite mailing difficulties and other problems.
31) DON’T count on timely mail delivery. The Notice of Appeal, brief, or any other document is not “filed” with the BIA until they actually receive it. Merely placing it in the mail before the due date will NOT be considered a timely filing if the document arrives late. Mail early!
32) If you are not in detention, use a courier service to deliver filings to the BIA so you have solid evidence of timely filing.
33) If you check the box on the appeal form saying you will file a brief or additional statement, you MUST do so, even if short. Failing to file a brief or written statement after checking that box can be a ground for the BIA to summary dismiss your appeal without considering the merits.
34) Info about the BIA Pro Bono Project.
NOTICE: The ideas above are solely mine. They are not legal advice, and have not been endorsed or approved by any organization or any other person, living or dead, born or unborn.
“Juana,” a client of the Asylum & Convention Against Torture Clinic and Annunciation House in Texas, after she won asylum and was released from detention in spring 2019.
Asylum and Convention Against Torture Appellate Clinic Celebrates 20th Anniversary
February 17, 2023
Twenty years ago, Cornell Law School established its Asylum and Convention Against Torture Appellate Clinic. Since then, some 200 students have represented close to 100 clients. In a system where the vast majority of asylum seekers lose their appeals, the clinic has won an estimated sixty-six percent of its cases.
“Because of the complexity of immigration law, it is very hard to win asylum for someone,” says clinic codirector Stephen Yale-Loehr, professor of Immigration Law Practice. “We are fortunate that we have excellent students who work tirelessly to save their clients from persecution or torture.”
Emily Rivera ’23, who is taking the clinic for a second year, writes, “This has been the most rewarding experience of my law school career. From working on federal court appeals to submitting request releases on behalf of detained clients, I have had the chance to engage in work that I am deeply passionate about.”
The experience has inspired careers in immigration law—and also deeply informed alumni’s work in other areas. Neethu Putta ’19, who took the clinic for two years as a student and now contributes to its work as an adjunct professor, observes, “The clinic taught me how to artfully frame issues and tell a client’s narrative in a way that leaves the court no choice but to find for them. As a practicing commercial litigator, I now use those skills daily.”
Clinic codirector Estelle McKee, clinical professor of law (Lawyering), notes that the clinic offers students a unique glimpse into the lives of individuals whose paths they would otherwise never cross. “Our clients are brave; many have undergone unspeakable persecution and torture, and have embarked on treacherous journeys to protect their families,” she says. “Their experiences and persistence offer students deep insight into the importance of zealous advocacy.”
McKee shares some comments sent to her by clinic clients. A Salvadoran asylum-seeker wrote, “I sincerely want to thank you for all your willingness, commitment, responsibility, and the respect with which you offer me your help. Few people do what you did for me, so I will be forever grateful to you.” [translated from Spanish]
Another reflection comes from a Cameroonian client who had been found “not credible” by an immigration judge and was ailing in a for-profit prison when the clinic took up his case. Against the odds, McKee and her students were able to get the case reopened and will represent this asylum-seeker as he returns to court. He says, “I continue to appreciate your care and concern and effort to my case… [Y]ou have really been a blessing to me… I will never forget you.”
For the professors as well, the experience has been unforgettable. Says Yale-Loehr, “The clinic has been a highlight of my legal career. I feel honored to have worked with so many excellent students over the years to help persecuted people win asylum and start a new life in the US.”
McKee adds, “There is nothing like clinical teaching. Not only does it present the opportunity to provide the representation so desperately needed by underserved populations, but it also enables a teacher to help shape the next generation of lawyers while also having an impact on the development of the law.”
*******************
Clinical education has been the biggest development in modern legal education — applied scholarship, practical skills, changing lives, problem solving, and developing the law, all before students join the bar! No better way to learn than at the chaotic, high-stakes “retail level” of our justice system. As I often tell students, “If you can win one of these cases, in this environment, everything else in law and many of the challenges of life will be a piece of cake!”
Immigration and human rights clinics, like Cornell and many others, have been at the very forefront of innovation and the clinical teaching movement. That’s why many of the “superstars” of clinical teaching are now being “tapped” by their institutions for leadership positions as Deans, Associate Deans, Assistant Deans, etc.
Where U.S. law remains “behind the eight ball:” Bringing these extraordinarily well-qualified “practical scholars,” leaders, and administrators onto the Federal Bench and in key leadership positions within the Government’s struggling legal bureaucracy, particularly in the dysfunctional agencies responsible for immigration, human rights, racial justice, due process, and equal justice. And, what passes for “policy making” on these issues in the Biden Administration is nothing short of a preventable and embarrassing humanitarian disaster!
Nowhere is this glaring disparity more obvious than between the dynamic talent and creativity in the private sector and the “backward looking, stuck in a rut, timid, uninspired” leadership inflicted on the public by these downward-spiraling, hugely wasteful and inefficient USG bureaucracies and the poorly-conceived and too often disingenuous “policies” (actually cruel “recycled Stephen Miller Lite gimmicks”) coming out of the West Wing!
🇺🇸 America needs change. And that requires some new faces, courage, innovation, and better solutions from the USG!The talent is available! Why are we being subjected to “Amateur Night at the Bijou” — or worse?
The Biden Administration has looked in some mighty strange places to assemble its amazingly inept human rights/immigration team. Why didn’t they try clinical programs and NGOs where the “real talent” is? That’s a question that the ghosts of dead and damaged legal asylum seekers might be asking for a long time to come! PHOTO: Thomas Hawk Creative Commons Amateur Night
“Good enough for government work” might be the mantra for Garland’s EOIR — but, it doesn’t ‘cut it’ with Article III Courts, even the conservative, non-immigrant-friendly 5th Circuit!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
“Francis Zamaro-Silverio petitions for review of the denial by the Board of Immigration Appeals (“BIA”) of cancellation of removal and voluntary departure. The BIA held that Zamaro-Silverio had been convicted of a crime involving moral turpitude (“CIMT”) and thus found her ineligible for those forms of discretionary relief. Because the BIA did not perform the proper analysis, we grant review, vacate, and remand for determination of whether Zamaro-Silverio’s conviction was for a CIMT. … The BIA found that Garcia-Maldonado controlled the outcome for Zamaro-Silverio. But in the wake of Mathis, that analysis is incorrect. The proper focus is now on the minimum conduct prohibited by the statute, not on Zamaro-Silverio’s particular actions. The minimum conduct that can trigger liability under ZamaroSilverio’s statute of conviction is the failure to remain at the scene of the accident and provide one’s name and other information. See Tex. Transp. Code § 550.021(a)(4). Thus, Zamaro-Silverio’s deportability hinges on whether failure to share information is a CIMT. Villegas-Sarabia, 874 F.3d at 877. Garcia-Maldonado does not reach this question, and, similarly, the BIA did not answer it. Given that “our ordinary rule is to remand to ‘giv[e] the BIA the opportunity to address the matter in the first instance in light of its own expertise,’” we go no further. Negusie, 555 U.S. at 517 (quoting Orlando Ventura, 537 U.S. at 17) (alteration in original). Therefore, the petition for review is GRANTED. We VACATE and REMAND to the BIA with instruction to determine whether the failure to share information under § 550.021(a)(4) is a CIMT.”
The Fifth Circuit precedent that the BIA failed to apply here, Villegas-Sarabia v. Sessions, 874 F.3d 871, 877 (5th Cir. 2017), was issued in 2017, before this respondent was even convicted. Yet, the BIA erroneously applied the pre-2017 version of Circuit law to deny her application. How is this competent adjudication from what is supposed to be a “specialized court” of expert adjudicators?
Remarkably, the BIA was even given a chance to correct its obvious error through a motion to reconsider filed while this petition for review was pending with the Circuit. Astoundingly, the BIA denied the motion to reconsider and “stuck with” a decision that violated Circuit precedent. What a way to (not) “run the railroad.”🚂
The Fifth Circuit panel in this case, Judge Jerry E. Smith (Reagan) (opinion), Judge Edith Brown Clement (Bush II), and Judge Cory T. Wilson (Trump) are all GOP appointees, among the most conservative Federal Judges in America — right out of “The Federalist Society Hall of Fame!”
Even the most far-right GOP Federal Judges have a “bottom line” that the BIA can’t manage to remain above.
Somewhat ironically, Dem Attorney General Merrick Garland, once nominated for the Supremes by President Barack Obama, appears to have no such bottom line for the BIA’s sloppy, unprofessional “any reason to say no and deny” judging! Unfortunately, it’s symptomatic for a Dem Administration that just doesn’t care very much when it comes to due process, fundamental fairness, and justice for migrants! Garland’s tolerance for bad judging is also clogging the Circuit Courts with unnecessary litigation generated by the BIA’s substandard performance!
Although he famously has reassigned most of the “high profile” work of the DOJ to various “Special Counsel,” curiously, Dem AG Merrick Garland, a former Article III Judge, doesn’t seem to have the time or the skills to fix the festering due process, bias, quality control, and professionalism problems in “his” wholly-owned “court” system — EOIR! So, the systemic injustice and chaos continue, unabated! PHOTO: Wikipedia Commons
When Judge Jerry E. Smith and his colleagues have the integrity to stand up for the legal rights of a respondent, even one who has committed a crime, but a Democratic AG doesn’t have the courage to bring fair and professional judging and quality control to EOIR (after two years on the job), progressives and advocates ought to be asking what the heck they voted for in 2020? I doubt that it was this awful, entirely preventable, mess!
Asylum seekers must wait for appointments in U.S. for everyone, or leave some behind.
By Andrea Castillo
WASHINGTON — Inside a tent near the Rio Grande in Matamoros, Mexico, Jeyson woke up before 3 a.m. every day for a month to fill out applications to request asylum for his family of four through a U.S. government mobile app.
The 25-year-old from Venezuela eventually secured appointments for himself and his wife, but the slots filled up so quickly that he couldn’t get two more for their children. They weren’t worried, though — they had heard about families in similar situations being waved through by border officials.
Instead, he said, a U.S. Customs and Border Protection agent told them recently that because each member of the family did not have an appointment, “you two can enter, but not your children.” Jeyson asked The Times to withhold his last name out of fear for his family’s safety.
Now, many families like Jeyson’s have found themselves confronted with a seemingly impossible decision: Wait indefinitely for enough appointments for the whole family, or split up. It is unclear how many migrants have been put in this position.
. . . .
“We already risked it all,” he said. “What can we do? We are hopeful that we can get three appointments. Three, in the end, is less than four.”
Advocates said some parents have decided to leave their children with extended family or friends in order to keep their appointments.
Jeyson said a couple from his encampment did just that, leaving their five children at the border bridge and entering the U.S. after managing to get only two appointments.
Children who are unaccompanied by a parent are exempt from Title 42. Those in the care of adults who are not their legal guardians — even if they are extended family — are separated until a guardian can be properly vetted. Jeyson said he watched as the children walked up to a border agent and were taken into custody.
Felicia Rangel-Samponaro, director of the Sidewalk School, a nonprofit that offers education, medical care and other assistance to migrants in Mexican border towns, has organized sessions with parents at various shelters and encampments in Matamoros and Reynosa to explain what will happen if they send their child across the border unaccompanied.
“We don’t want them to think you cross and then your child crosses and will come back to you a day later,” she said. “We were surrounded by parents who were showing us, one after the other, [who] have an appointment but their child does not.”
Rangel-Samponaro recommended to parents that they cancel their appointments and restart their search. But some parents told her they would separate from their kids anyway.
“Family separation has never stopped,” she said, referencing the Trump administration’s “zero tolerance” border policy that led to thousands of migrant children being taken from their parents. “The only difference here is that CBP One is now doing it instead of the other ways it’s been done since 2018.”
*******************
Read Andrea’s complete article at the link.
Let’s start with one undisputed fact: The number of appointments available on CBP One is pathetically, ridiculously inadequate for the KNOWN number of potential applicants waiting in Mexico! Why would this be after the Administration has had over two years to work on this perhaps challenging, yet very solvable problem?
Unnecessary delay is just another form of “bureaucratic deterrence through incompetence” used by the Trump Administration and, inexcusably, continued under Biden.
Just how bonkers is this DHS-created problem? Dependents are included on a primary asylum seeker’s application. Consequently, in most cases one application covers the entire family.
And, dependents don’t have to “prove” independent eligibility for asylum. Therefore, anything beyond biographical information and perhaps proof of relationship is unnecessary.
There is absolutely no reason for requiring a separate “appointment” for each family member. The current system is “pure harassment and deterrence through bureaucratic incompetence.”
In Immigration Court, a family of five required only ONE asylum hearing slot — NOT FIVE!
Most legal asylum seekers at the border want to “do things the right way” — present themselves to DHS and submit an application. It’s neither profound nor “illegal.”
The BEST way of getting applicants to use the ports of entry is to work with experts and NGOs to establish a user-friendly, generous, timely system that prioritizes the many strong claims and grants them promptly at the Asylum Office rather than feeding them into a backlogged and dysfunctional EOIR.
In other words, if you BUILD a fair, credible, user-friendly legal application system at legal ports of entry, applicants will USE it. That the Trump White Nationalists destroyed our legal, statutory refugee and asylum systems was well-known at the time. Indeed, Biden and Harris campaigned on a pledge fix the system and restore legal asylum!
Instead, the Administration failed to utilize the skills and experience of experts to have a planned fix ready on “day one.” Since then, over more than two years, they have inexplicably ignored expert advice, wasted time, squandered resources, and bobbled through a bewilderingseries of mindless “Stephen Miller Lite deterrence gimmicks,” including “dedicated dockets,” prioritizing the wrong cases, “Aimless Docket Reshuffling” on steroids, a“Miller Lite holdover” BIA known for hostility to asylum seekers, ignoring the need for pro bono representation, failing to train and deploy enough Asylum Officers to the border, and not working with advocates, NGOs, and asylum seekers to prescreen cases, start granting asylum and moving qualified refugees (and their families) through the system and into durable legal status prior to the lifting of Title 42.
The CBP One screwup is just the latest in a string of “unforced errors” by the Biden Administration that abuse asylum seekers without any systemic benefits to anyone — “random acts of cruelty and stupidity!” This app was obviously designed by non-users for use by USG “gatekeepers” without any idea of what its like to be an asylum seeker stuck in Mexico.
Indeed, it appears that the app’s developers have little idea of how the legal asylum system works. Talk about “amateur night at the Bijou!”
Perhaps, the Biden Administration should have used a different method for selecting the so-called “developers” of their failed “CBP One App!” PHOTO: Thomas Hawk Creative Commons Amateur Night
“Family separation” has never stopped; now it has been“automated” — by a Dem Administration that has abandoned humanity and betrayed its campaign promises! Inexcusable!
“I’m gone, but my ‘evil spirit’ lives on in the West Wing! They have even ‘one-upped’’ me with a ‘family separation app’ called CBP One! Never has inflicting gratuitous cruelty been so easy!” Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
The Biden proposal has picked up somewhat tepid endorsements from the likes of Trumpsters DHS official Chad Wolf and leading GOP insurrectionist Rep. Jim Jordan (R-OH). Tells you all you really need to know about just how cruel and counterproductive these harebrained proposals are!
These are the folks that the Biden administration is pandering to while ignoring and disrespecting experts and asylum advocates who have centuries of collective experience working on asylum and the border. They also have plenty of good ideas for real asylum/human rights/border reforms that will combat cruelty and promote orderly compliance with the rule of law. The Biden Administration just isn’t interested in, or perhaps capable of, “doing the right thing.”
***********************
Here’s the text of my “custom revision” of the standard comment posted on the website:
I am a retired US DOJ attorneywith more than 35 years ofgovernment experience, all of it in the immigration field, mostly in senior positions. I have been involved in immigration and human rights, in the public and private sectors, for five decades
My last 21 years were spent as an EOIR Judge: eight years as an Appellate Immigration Judge on the BIA (six of those years as BIA Chair), and 13 years as an Immigration Judge at the (now legacy) Arlington Immigration Court. I was involved in the enactment of the Refugee Act of 1980 as well as developing implementing regulations and setting precedents thereunder.
I state unequivocally that these unnecessary proposed regulatory changes are a disavowal of more than four decades of U.S. (and international) asylum law as well as a shocking betrayal of the promise by the Biden Administration to stand up for the rights of legal asylum seekers and end the White Nationalist attempt by the Trump Administration to kill asylum without legislation.
The proposed rule is contrary to well-established United States law regarding the right to seek asylum in our country. There is absolutely no basis in law for the proposed “presumption of denial” for those who seek asylum outside a port of entry or who have transited other countries (as most have) without seeking asylum.
Indeed, the Administration’s approach is in direct contravention of the INA, which establishes rigorous criteria for designating “safe third countries” for asylum seekers. Only Canada has met those rigorous criteria to date, and even then only for a very limited class of applicants.
The idea that Mexico or other countries in Central America that asylum seekers customarily transit on the way to our southern border are “safe havens” for asylum seekers is patently absurd and counterfactual! Indeed, all legitimate experts would say that these are some of the most dangerous countries in the world — none with a fairly functioning asylum system.
Individuals are specifically entitled by the RefugeeAct of 1980, as amended, to access our asylum system regardless of how they enter, as has been the law for decades. They should not be forced to seek asylum in transit to the United States, especially not in countries where they may also face harm. The ending of Title 42—itself an illegal policy—should not be used as an excuse to resurrect Trump-era categorical bans on groups of asylum seekers.
As you must be aware, those policies were designed by xenophobic, White Nationalist, restrictionists in the last Administration motivated by a desire to exclude and discriminate against particular ethnic and racial groups. That the Biden Administration would retain and even enhance some of them, while disingenuously claiming to be “saving asylum,” is beyond astounding.
The rule will also cause confusion at ports of entry and cause chaos and exacerbate backlogs in our immigration courts. Even worse, it will aggravate the already unacceptable situation by making it virtually impossible for most asylum seekers to consult with pro bono counsel before their cases are summarily rejected under these flawed regulations.
People who cannot access the CBP One app are at serious risk of being turned away by CBP, even if the rule says otherwise. Additionally, every observer has noted that the number of “available appointments” is woefully inadequate. In many cases, observers have noted that this leads to “automated family separation.” Rather than fixing these problems, these proposed regulations will make things infinitely worse.
Additionally, as was demonstrated by the previous Trump Transit Ban, the rule is likely to create confusion and additional backlogs at the immigration courts as individual judges attempt to apply a complicated, convoluted rule.
Under the law, the U.S. Government has a very straightforward obligation: To provide asylum seekers at the border and elsewhere, regardless of nationality, status, or manner of coming to the U.S., with a fair, timely, opportunity to apply for asylum and other legal protections before an impartial, expert, adjudicator.
The current system clearly does not do that. Indeed,EOIR suffers from an “anti-asylum,” often misogynist “culture,” lacks precedents recognizing recurring asylum situations at the border (particularly those relating to gender-based persecution), and tolerates judges at both levels who lack asylum expertise, are not committed to due process and fundamental fairness for all, and, far from being experts, often make mistakes in applying basic legal standards and properly evaluating evidence of record, as noted in a constant flow of “reversals and rebukes” from Circuit Courts.
We don’t need moremindless“deterrence” gimmicks. Rather, it’s pasttime for the Administration to reestablish a functioning asylum system.
🇺🇸Due Process Forever! The treachery of an Administration that abandons humane values, and fears bold humanitarian actions, never!
“Any reason to deny, any reason to deny, any reason to deny, any reason to deny, any reason to deny, any reason to deny, any reason to deny . . . .” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
“For decades, the authoritarian regime in Cuba has utilized its police force to intimidate and physically assault political dissidents and peaceful demonstrators throughout the island. Ignacio Balaez Serra, a Cuban immigrant seeking asylum in the United States, maintains he experienced this abuse first-hand after multiple arrests, imprisonments, and beatings by the Cuban police. Serra seeks review of the Board of Immigration Appeals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of Serra’s application for asylum, withholding of removal under the Immigration and Nationality Act (“INA”), and relief under the United Nations Convention Against Torture and Other Cruel Inhumane or Degrading Treatment or Punishment (“CAT”) (together, “Application”). The IJ denied Serra’s Application, finding Serra’s testimony “not credible.” In reaching this adverse credibility determination, the IJ cited two inconsistencies between Serra’s hearing testimony and Application. The first purported inconsistency dealt with the timing of Serra’s passage of a kidney stone; specifically, whether he passed it on the day he was beaten by Cuban police or several days thereafter. The second pertained to the number of countries Serra passed through en route to the United States; he listed ten countries in his written Application but later testified that he traveled through “about 11 or 12.” The IJ also reached his adverse credibility determination based on Serra’s perceived non-responsiveness to certain questions. On appeal, the BIA rejected the IJ’s finding that Serra was non-responsive but affirmed the IJ’s adverse credibility determination based on the two inconsistencies alone. After careful review and with the benefit of oral argument, we conclude the record lacks substantial evidence that would allow us to affirm the adverse credibility determination. We therefore reverse and remand. … [T]he IJ perceived two instances of non-responsiveness and two discrepancies in the record, resulting in an adverse credibility determination. The BIA rejected the IJ’s findings of non-responsiveness. Thus, the IJ’s adverse credibility determination hinged only on two purported inconsistencies in the record. But upon consideration of the totality of the circumstances, it is clear these inconsistences are unsupported by reasonable, substantial, and probative evidence—and thus cannot form the basis for an adverse credibility determination. Therefore, we grant Serra’s petition. We further vacate the BIA’s decision and the IJ’s opinion and remand this case to the IJ to rule on Serra’s applications for asylum, withholding of removal, and relief under CAT in accordance with this opinion. In doing so, the IJ must ensure that all relevant factors are considered—and the totality of the circumstances ascertained—before reaching a conclusion as to credibility. PETITION GRANTED, VACATED and REMANDED.”
[Hats off to Marty High and Joshua Carpenter and Jonathan Morton for amici American Immigration Council and Immigration Justice Campaign!]
**************************
Super congrats to NDPA superstar litigators Marty High, Joshua Carpenter, and Jonathan Morton.
This respondent was a unrepresented before the IJ. Thus, we see another example of how EOIR routinely mistreats pro se litigants and why counsel is a due process necessity even in a very straightforward asylum case like this. Obviously, here, the IJ played the role of “co-counsel” to the ICE Assistant Chief Counsel. Yet, AG Garland has intentionally established “dedicated dockets” and bogus “adjudication timelines” that have been shown to reduce opportunities for representation and diminish the chances of success for asylum seekers.
To borrow a memorable phrase used by my late BIA colleague Appellate Judge FredW. Vacca, “this pathetic attempt at an adjudication” by EOIR was actually defended before the Circuit by the DOJ’s OIL. The glaring problems with immigration and asylum adjudication at DOJ begin at EOIR, but by no means end there.
This case isn’t “rocket science,” nor is it legally or factually complicated. It’s a very straightforward asylum grant to somebody persecuted by Cuba, where, in the words of the 11th Circuit, “[f]or decades, the authoritarian regime . . . has utilized its police force to intimidate and physically assault political dissidents and peaceful demonstrators throughout the island!”
I also note the statutory provision on credibility that the IJ completely bolluxed here and the “any reason to deny” BIA then “rubber stamped” (in part, even while noting that some of the IJ’s analysis was wrong) was part of the REAL ID Act, passed in 2005. That’s 15 years before the the IJ hearing in this case! Heck, I used to give training classes for incoming EOIR JLCs where decisions very much like this IJ’s were used as “teaching examples” of how NOT TO APPLY Real ID! EOIR not only isn’t making “progress,” it’s actually stuck in reverse!
Having spent eight years as an Appellate Judge at the BIA and having reviewed thousands of records, I know that when an IJ goofs up one part of the analysis it’s often indicative of an overall careless, flawed analysis that should be viewed with considerable skepticism. Yet, here the IJ’s “clear error,” acknowledged by the BIA, in basically inventing “unresponsiveness” doesn’t appear to have inspired the BIA to critically examine the rest of the adverse credibility ruling below. On the contrary, it appears to have spurred the BIA to find “any other reason to deny” despite the indication that this was an inaccurate and unreliable analysis by an IJ having a bad day.
It also appears from the Circuit’s decision that there might have been interpretation issues before both the IJ and the Asylum Office. That makes the IJ’s “cherry picking” and “excessive focus on insignificant testimonial inconsistencies” particularly egregious.
The 11th Circuit decision here was written by U.S. District Judge Rodolfo A. Ruiz II, SD FL, sitting by designation. Judge Ruiz is a Trump appointee. He was joined on the panel by Judge Jill Pryor (Obama) and Judge Charles R. Wilson (Clinton) of the 11th Circuit. Thus, apparently the abysmal performance of EOIR is one of the few things capable of uniting and creating “bipartisan agreement among Article III Judges!”
Perhaps Senator Gillibrand is right, and she will be able to obtain sufficient bipartisan support for her Article I Immigration Court bill, which would remove this system from the DOJ’s chronic mismanagement. Seehttps://immigrationcourtside.com/2023/02/17/⚖️🗽-teas-coffee- Because the current situation at EOIR, the continuing indifference to injustice, and its damage to human lives and the law is totally unacceptable!
Also, what about the legal and judicial resources consumed on this and similar cases? Wouldn’t it be great if both the USG and the private sector could “redeploy” them to making the immigration justice system work, rather than correcting sophomoric, yet life threatening, errors? (Admittedly, describing the errors made by DOJ attorneys at all three levels here as “sophomoric” could be viewed as a slight to sophomores everywhere.)
Not only is EOIR’s “any reason to deny” system patently unjust, it’s a colossal waste of public resources! “Bureaucracy 101” — “Get it right at the initial level of the system.”
Of course the battle here hasn’t concluded. The remand gives EOIR yet another opportunity to screw up. Given EOIR’s current indifference to quality and fairness, I wouldn’t count on them to “get it right this time around” — even with Judge Ruiz basically providing them with the correct answer!
The ordeal of Farooqi, who covers politics and national news for News One in Pakistan, exemplifies a global epidemic of online harassment whose costs go well beyond the grief and humiliation suffered by its victims. The voices of thousands of women journalists worldwide have been muffled and, in some cases, stolen entirely as they struggle to conduct interviews, attend public events and keep their jobs in the face of relentless online smear campaigns.
Stories that might have been told — or perspectives that might have been shared — stay untold and unshared. The pattern of abuse is remarkably consistent, no matter the continent or country where the journalists operate.
Farooqi says she’s been harassed, stalked and threatened with rape and murder. Faked images of her have appeared repeatedly on pornographic websites and across social media. Some depict her holding a penis in the place of her microphone. Others purport to show her naked or having sex. Similar accounts of abuse are heard from women journalists throughout the world.
. . . .
This article is part of “Story Killers,” a reporting project led by the Paris-based journalism nonprofit Forbidden Stories, which seeks to complete the work of journalists who have been killed. The inspiration for this project, which involves The Washington Post and more than two dozen other news organizations in more than 20 countries, was the 2017 killing of the Indian journalist Gauri Lankesh, a Bangalore editor who was gunned down at a time when she was reporting on Hindu extremism and the rise of online disinformation in her country.
New reporting by Forbidden Stories found that shortly before her slaying, Lankesh was the subject of relentless online attacks on social media platforms in a campaign that depicted her as an enemy of Hinduism. Her final article, “In the Age of False News,” was published after her death.
. . . .
Until news organizations recognize the purpose of harassment campaigns and learn to navigate them appropriately, experts say, women will continue to be forced from the profession and the stories they would have reported will go untold.
“This is about terrifying female journalists into silence and retreat; a way of discrediting and ultimately disappearing critical female voices,” Posetti said. “But it’s not just the journalists whose careers are destroyed who pay the price. If you allow online violence to push female reporters out of your newsroom, countless other voices and stories will be muted in the process.”
“This gender-based violence against women has started to become normal,” Farooqi said. “I talk to counterparts in the U.S., U.K., Russia, Turkey, even in China. Women everywhere, Iran, our neighbor, everywhere, women journalists are complaining of the same thing. It’s become a new weapon to silence and censor women journalists, and it’s not being taken seriously.”
********************
“Not being taken seriously” aptly describes the attitude and actions of the Biden Administration toward some women seeking asylum on the basis of gender-based violence. Certainly, our Government could and should do better at recognizing and prioritizing refugee and asylum status for this vulnerable group.
Yet, even this “slam dunk” case took nearly six months to adjudicate. Seems like it could and should have been granted at the interview in a well-functioning system. Better yet, most Afghan refugees could have been screened overseas and admitted in legal refugee status, thus avoiding the backlogged asylum system and freeing both USG and private bar resources for more difficult cases.
Once, America was in the forefront of setting precedents that protected female refugees. See, e.g., Matter of Kasinga, 21 I&N Dec. 357 (1996) (FGM, opinion by Schmidt, Chair). Now, not so much, despite our nation’s heavy involvement with Afghanistan. Apparently, the “powers that be” are afraid that consistently and aggressively supporting refugee protection for women fleeing Afghanistan and other dangerous countries would “encourage” them to actually seek legal protection here thereby upsetting right-wing nativists and misogynists.
Yet, incredibly, the Biden Administration proposes to send up to 30,000 rejected NON-MEXICAN border arrivals per month to Mexico without fair examination of their potential asylum claims. To date, BIA precedents, regulations, and policy statements have NOT recognized the well-documented, clear and present dangers for journalists, women, and particularly female journalists, in Mexico. Consequently, I’d say that there is about a 100% chance that some female journalists seeking asylum will be illegally returned to death or danger, whether in Mexico or their native countries.
Just can’t make this stuff up. Yet, it’s happening in a Dem Administration!
AG Merrick Garland did vacate former AG Jeff “Gonzo Apocalypto” Sessions’s lawless and misogynistic decision in Matter of A-B-. That action “restored” the BIA’s 2014 precedent decision in Matter of A-R-C-G-, recognizing that gender-based domestic violence could be a basis for granting asylum.
However, the BIA didn’t elaborate on the many forms that gender-based persecution can take, nor did they provide binding guidance to Immigration Judges on how these cases should be handled in accordance with due process, fundamental fairness, and best practices.
Garland and his BIA have failed to follow up with any meaningful guidance or amplification of A-R-C-G- for Immigraton Judges. That’s even though many women fleeing Latin America come from countries where gender-based violence is rampant and the governments make little or no effective efforts to control it — sometimes police and other corrupt officials even join in the abuses.
Consequently, life or death protection for female asylum seekers remains a disgraceful and wholly unacceptable “crap shoot.” Outcomes of well prepared and copiously documented asylum cases often depend more on the attitude of the Immigration Judge or BIA Appellate Judge hearing the case than on the law and facts.
Also, without a knowledgeable lawyer, which the Government does not provide, an applicant has virtually no chance of winning a gender-based protection case in today’s EOIR. Additionally, those in immigration detention or placed on Garland’s “accelerated/dedicated” dockets are known to have particular difficulty obtaining pro bono counsel.
Anti-asylum IJs, some of whom were known for their negative attitudes toward female asylum seekers — many of those who actually “cheered” Sessions’s biased and wrong reversal of hard-won asylum protection for women in EOIR courts — remain on the bench under Garland at both levels.
To their credit, some have changed their posture and now grant at least some gender-based cases. But, others continue to show anti-asylum, anti-female bias and deny applications for specious reasons, misconstrue the law, or just plain use “any reason to deny” these claims, without any fear of consequences or meaningful accountability.
Many advocates and experts would say that female asylum applicants still face “trial by ordeal” in Garland’s “overly Trumpy” EOIR. Despite campaign promises, the Biden Administration has done little to champion the cause of gender-based refugees and asylum seekers — at the Southern Border or elsewhere. Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Whether or not such egregious errors and non-uniform applications of asylum law get reversed at the BIA again depends on the composition of the BIA “panel” assigned to the case. (Not all “panels” have three Appellate Judges; some are “single member” panels). Significantly, and inexplicably, a group of Trump-holdover BIA Appellate Judges known for their overt hostility to asylum applicants (with denial rates approaching 100%) and their particular hostility to gender-based claims, remains on the BIA under Garland. There, they can “rubber stamp” wrong denials while sometimes even reversing correct grants of protection by Immigration Judges below! Talk about a broken and unfair system!
With an incredible backlog of 2.1 million cases, approximately 800,000 of them asylum cases, wrongly decided EOIR cases can “kick around the system” among the Immigration Courts, the BIA, and the Circuits for years. Sometimes, a decade or more passes without final resolution! Imagine being a pro bono or “low bono” attorney handling one of these cases! You “win” several times, but the case still has no end. And, you’re still “on the hook” for providing free legal services.
It’s no wonder that, like his predecessors over the past two decades, Garland builds EOIR backlog exponentially — without systematically providing justice or instituting long overdue personnel and management changes! It’s also painfully clear that, also like their predecessors, Garland and his political lieutenants have never experienced the waste and frustrations of handling pro bono litigation before the dystopian “courts” they are now running into the ground!
Meanwhile, Biden’s promise and directive that his Administration promulgate regulations containing standards for gender-based asylum cases that would promote fairness and uniformity within his OWN courts and agencies remains unfulfilled — nearing the halfway point of this Administration! Apparently, some politicos within the Administration are more fearful of predictable adverse reactions from right-wing nativists and restrictionists than they are anxious to “do the right thing” by listening to the views of the experts and progressives who helped put them in office in the first place!
Thus, abused women and other refugees and asylum seekers, and their dedicated supporters, many of whom have spent “professional lifetimes” trying to establish the rule of law in these cases, face a difficult conundrum. In America today, neither major political party is willing to stand up for the legal and human rights of refugees, particularly women fleeing gender-based persecution.
As an “interested observer,” it seems to me that something’s “got to give” between so-called “mainstream Dems” and progressive immigration/human rights advocates. The latter have devoted too much time, energy, courage, and expertise to “the cause” to be treated so dismissively and disrespectfully by those they are “propping up.” And, that includes a whole bunch of Biden Administration politicos who were nowhere to be found while immigration advocates were fighting, often successfully and against the odds, on the front lines to save democracy during the “reign of Trump.”
That was a time when immigrants, asylum seekers, people of color, and women were the targets for “Dred Scottification” before the law. I have yet to see the Biden Administration, or the Dem Party as a whole, take a strong “active” stand (rhetoric is pretty useless here, as the Administration keeps demonstrating) against those who would use misapplications of the law, ignoring due process, demonization, and refusal to recognize the humanity of migrants as their primary tool to undermine and ultimately destroy American democracy!
Immigrants, including refugees, are overall a “good story” — indeed the real story of America since its founding. That Dems can’t figure out how to tell, sell,advance, and protect the immigrant experience that touches almost all of us is indeed a national tragedy.
Sitting in the chamber after 15 rounds of votes for speaker that felt like “democracy had been hijacked by a handful of extremists,” Rep. Hillary J. Scholten (D-Mich.) was left “wondering what in the world we had gotten ourselves into with this Congress.” But then she found herself clapping alongside Republicans when McCarthy promised that a GOP majority was committed “to stop wasteful Washington spending” while lowering the price of groceries, gas and housing for families. It’s a similar message to what Scholten ran on in a district where she beat a Trump-endorsed Republican and became the first Democrat in decades to represent her part of western Michigan.
“I campaigned a lot on fiscal responsibility,” she said in an interview. “At the center of fiscal responsibility is making sure that we are keeping our government running. I am looking for no-nonsense partners on the other side, and within my own caucus as well, who are not going to play games with the budget and our deficit.”
. . . .
Democrats are keeping an open mind about what legislation to tackle with Republicans, knowing that the GOP sets the tone for which bills to pursue on the floor. Democratic leaders have repeatedly said that their caucus will not support legislation proposed by far-right Republicans or policies that are too extreme, like a border security bill by Rep. Chip Roy (R-Tex.) that detractors say would end all asylum claims.
Scholten has spoken with Republicans about immigration reforms and how best to close supply chains so the United States can remain competitive globally without relying on foreign workers to do so. She and [Rep. Jared] Moskowitz [D-FL] both voted in support of establishing a select committee on China, crossing the aisle for the first time with 144 other Democrats.
In a sign of solidarity, Scholten and freshman Republican Rep. John James (Mich.) decided to sit together during their first State of the Union address to “demonstrate the spirit of bipartisanship” that has already helped them begin finding compromise on clean water legislation and to protect a fighter mission at a local Air National Guard base.
“I think it’s so important, especially in these troubling and trying times, to show that even as neighbors right here in the office and states-mates, that more unites us than divides us,” James said.
“We’re ready to get to work,” Scholten said before they high-fived.
Rep. Hillary J. Scholten (D-Mich.) and other freshman Democrats view President James Madison’s crystal flute, played by Lizzo in September, during a tour last month at the Library of Congress. (Jabin Botsford/The Washington Post)
*******************
As those who know her predicted, Hillary is making her presence felt “right off the bat.” She’s also using her quick grasp of issues, collegiality, and outstanding team building skills that she was known for during her time as an EOIR attorney. Those are important attributes! I might add that they are in short supply at today’s dystopian EOIR, according to sources in the agency as well as those affected by its historically poor, and literally life-threatening,performance (or lack thereof) over the past two Administrations!
Always fun and satisfying to read about “the good guys in life” making progress and getting recognition! You can read the full article at the link!
Judge Sarah B. Yeomans (Sterling Immigration Court) practiced before me in Arlington.
Judge Alysha M. Welsh (Annandale Immigration Court) worked for Round Tabler Judge (Ret.) Bill Joyce and most recently Human Rights First.
Judge Vimala S. Mangoli (Richmond Immigration Adjudication Center) is long-time Catholic Charities attorney.
Judge Jason E. Braun (Annandale Immigration Court) is most recently from Restoration Immigration Legal Aid of Arlington.
Per Round Table’s Hon.”Sir Jeffrey” Chase:
Judge Abby Anna Batko-Taylor, was appointed to the Falls Church Adjudication Center. Abby Anna while with Texas RioGrande Legal Aid won an unpublished, 39-page, unanimous panel decision [on asylum] in the 5th Circuit (attached) that she unsuccessfully moved that court to publish. The Round Table filed an amicus brief in support of the publication request.
While Garland has not made the long overdue systemic and leadership changes necessary to institutionalize due process, fundamental fairness, expert scholarship, and best practices at EOIR, positive change from below can still take place and will improve the quality of justice, one courtroom at a time! See,https://immigrationcourtside.com/2023/01/12/🇺🇸⚖️👨🏽⚖️👩🏽⚖️🗽-i-want-you-to-be-a-u-s-immigration-judge/. Seeing the “ball go in the basket” 🏀 on the “court of justice” ⚖️ inspires others in the NDPA to keep fighting for human rights, fair treatment of asylum seekers, and due process at the retail level of justice!
Full bios of the new Immigration Judges are available at the above link. Congratulations to all!
Lindsay Toczylowski Executive Director, Immigrant Defenders “ I always tell the new immigration attorneys at Immigrant Defenders Law Center to never forget just how stacked against our clients the odds are in immigration court.”
I always tell the new immigration attorneys at Immigrant Defenders Law Center to never forget just how stacked against our clients the odds are in immigration court. Today was a classic example.
Went in with a case that we have spent weeks on end prepping for, seeking asylum protection for our client. We extensively argued our case. Govt attorney waived arguments & had no filings for today, last filing they made in case was in 2020. Yet the judge found that despite a finding of past persecution the govt had rebutted the presumption of a well-founded fear of future persecution.
So the govt atty who didn’t make an argument, who didn’t file anything was found to have successfully rebutted our claims. We plan to appeal, but the imbalance of power in an immigration courtroom, even when someone has an attorney, is profound. Without an attorney it is inhumane.
At the end of the hearing the judge excused the ICE attorney so he did not have to stay through the oral decision. So we sat there, with our client wiping tears from his eyes, and received the decision. We took notes on its mistakes. We reserved the right to appeal.
And I felt this pit in my stomach knowing that my client was seeing his life flash before his eyes, knowing this put him in grave danger. And yet the ICE atty, one of the principal ppl responsible for putting him at risk, couldn’t even bother to stay to the end of the hearing.
Picture of the mural that sits across from one of the immigration courts in DTLA, which seems so fitting on today and so many days.
Mural
Grateful to my colleague Alvaro M. Huerta who was an incredible advocate for our client today.
************************
A very sad commentary on the “culture of denial” still prevalent at EOIR and Garland’s failure to address it head on. Seems like the ACC knew how the judge would rule in advance.
I actually remember a long-ago time at the USDOJ when a “win” was “when justice was done” not just “another denial and deportation notched.” As a few “old timers” might remember, I actually incorporated it into my “welcoming speech” to new INS trial counsel when I was the Deputy General Counsel/sometimes Acting GC at the “Legacy INS.” In a GOP Administration, no less!
Times have changed, I guess, to where a Dem Administration and a Dem AG function “below the Reagan line!” Interesting, yet depressing!
The IJ “excusing” the ACC from the oral decision — at least a violation of judicial etiquette, disrespectful, and unprofessional, if not marginally unethical — shows just where things stand in a system run by a former Federal Judge who has forgotten what justice and public service are all about — at least when it comes to those stuck in his dysfunctional and unprofessional “courts!”
I always insisted that both counsel be present for the delivery of an oral decision. If that were impossible, because of time constraints or a legitimate personal emergency, then the obvious solution was to either 1) issue a written decision, or 2) invite the parties to return another day to listen to the oral decision. A third option was to record it “in chambers,” and have a JLC or intern transcribe and edit it for issuance as a written decision. I actually noticed when the INS ACC was working on the files for the next case or “secretly” looking at an i-phone under counsel table while I was dictating the oral decision. While I didn’t mention it, it did “inform” my opinion of them as attorneys.
Unfortunately, I wouldn’t count on Garland’s Trump holdover BIA to correct the egregious injustices on the merits of this case. The appeals system is also “programmed to deny and deport” — just as Sessions and Barr constructed it!
One might have thought that a Dem Administration and a former Federal Judge would be interested in bringing due process, fundamental fairness, and decisional excellence to one of the most important Federal “Court” Systems — one they totally control! Not so! This is most disappointing and enraging, particularly for those practicing in the “skewed against the individual” mess that Garland tolerates and enables!
And, folks, these examples, including the outrageous miscarriage of justice and impartial judging described by Lindsay above, just cover a period since January 27, 2023, a mere 16 days ago — basically just the “tip of Garland’s deadly iceberg of injustice at EOIR!”
While numerous examples of unfairness and unprofessionalism at Garland’s dystopian EOIR have surfaced, they are “just the tip of the iceberg” masking the huge disaster lurking below where Garland and his lieutenants fear to go! Created by Uwe Kils (iceberg) and User:Wiska Bodo (sky). Creative Commons Attribution-Share Alike 3.0
The unprofessional, disgraceful performance of EOIR described above, and the inexcusable failure to “clean house,” bring in qualified expert judges and professional judicial administrators, and support and institutionalize competent expert judging at EOIR, as represented by Judge Burgie and some others, would be disgraceful in ANY Administration! Coming during a Democratic Administration that RAN ON A PLATFORM of ending xenophobic, extralegal, nativist-motivated abuses directed at asylum seekers (often of color), immigrants, and their courageous, dedicated attorneys is totally unacceptable!
Yet, Senate Dems have failed to haul Garland and his lieutenants before the Senate Judiciary Committee to be confronted by those abused on their watch and to answer for their abject failure to bring due process, fundamental fairness, best practices, and competent, expert judicial decision making to EOIR’s dystopian, dysfunctional, and outrageously unfair “faux courts!”
As Lindsay says, “I always tell the new immigration attorneys at Immigrant Defenders Law Center to never forget just how stacked against our clients the odds are in immigration court.” It does NOT have to be this way!
These are NOT life-tenured Article III judges! They are, as the DOJ is constantly reminding them, “DOJ attorneys.” GOP Administrations have demonstrated time and again the recognition that they have the power to “purge” judges who stand up for immigrants’ rights and due process and to “stack” the Immigration Courts against asylum seekers andimmigrants.
Garland has the power to do the opposite: “unstack” EOIR, bring in qualified judges and administrators who are recognized, respected experts in immigration law, human rights, and due process, and create a “model Federal Judiciary” and a source for future experienced, well-qualified Article III appointments.
In nearly two years of inept and dilatory “administration” of EOIR, Garland has failed to achieve, or indeed even attempt, these essential, long-overdue reforms. Indeed, so poorly has he performed on immigration, human rights, equal justice, and racial equity, that many dedicated immigration practitioners tell me that things are markedly worse now for due process and fair judging at EOIR than at the end of the Trump Administration.See, e.g.,https://immigrationcourtside.com/2022/09/21/-outrage-boils-over-at-merrick-garlands-milleresque-war-on-due-process-at-eoir-his-grotesque-mismanagement-of-immigration-courts-garland-might/, (Quoting Jason “The Asylumist” Dzubow: “But as it turns out, President Biden’s EOIR is far worse than President Trump’s. Indeed, the current level of callousness would make even Stephen Miller blush.”)
As Jason Dzubow would say, “It didn’t have to be this way!” But, sadly, and outrageously, it IS this way! Eventually, that’s something that the Democratic Party will have to answer for! Unfortunately, some of their “victims” are likely to be in their graves by then!☠️⚰️🤮
President Biden often correctly says that our democracy is in peril! Yet, one of the main places where it is most imperiled and disrespected is in HIS OWN Immigration Courts at EOIR. Why hasn’t the President led the “defense of democracy” by cleaning up the mess in his own house? Inexplicable!
BIA panel gets ready to “gun down” — in “cold blood” — another meritorious appeal by immigrant! Court orders are no match for this gang that “shoots from the hip.” PHOTO: Republic Pictures (1957), Public Domain
Dan Kowalski reports from LexisNexis Immigration Community:
“For the second time, petitioner Irma Aguilar-Escoto, a native and citizen of Honduras, asks us to vacate the Board of Immigration Appeals’ (“BIA” or the “Board”) rejection of her claim for withholding of removal. When this case was last before us, we vacated the BIA’s prior order and instructed the Board to consider the potentially significant documentary evidence submitted in support of Aguilar’s claim. See Aguilar-Escoto v. Sessions, 874 F.3d 334, 335 (1st Cir. 2017). Today, we conclude that the BIA again failed to properly consider significant documentary evidence. Consequently, we vacate the Board’s removal order and remand for further proceedings.”
[Hats off to Kenyon C. Hall, with whom Jack W. Pirozzolo, Sidley Austin, LLP, Charles G. Roth, National Immigrant Justice Center, and Carlos E. Estrada were on brief, for petitioner!]
*******************
This case is a microcosm of everything that’s wrong about EOIR, a “captive,” denial-biased “court” system operating within the DOJ, an enforcement agency within the Executive Branch, over three different Administrations — two Dem and one GOP! But, there is more to this story!
THE REST OF THE STORY:
In 2013, this respondent appeared before an IJ and presented a well-documented claim for withholding of removal to Honduras based on domestic violence. Among the respondent’s documentation were a psychological report, three police reports, a medical report from Honduras, a protection order from a Honduran court, the respondent’s declaration, and affidavits from family members. In the first flawed decision, in 2014, the IJ denied the claim.
The respondent appealed to the BIA. In another flawed decision, entered in 2016, the BIA denied the appeal. In doing so, the BIA denied an asylum claim that the respondent did not make and ignored key documentary evidence that went to the heart of the respondent’s claim. This suggests that the BIA merely slapped a “form denial” on the case which reflected neither the nature of the case below nor the actual record before them. Immigration practitioners say this type of performance is all too common in the dystopian world of EOIR.
Consequently, the respondent, represented pro bono by NDPA stalwart Carlos E. Estrada, a solo practitioner, sought review in the First Circuit. That petition succeeded! In 2017, the First Circuit vacated the BIA’s erroneous decision and directed the BIA to redo the case, this time considering the material, independent evidence of persecution that the BIA had previously ignored.
At this point, the respondent and her attorney had every reason to believe that their ordeal was over and that justice, and potentially life-saving protection, was “just around the corner.” But, alas, those hopes were dashed!
The BIA botched it again! In 2018, in what appeared to be one of the BIA’s “standard any reason to deny” opinions, the BIA purported to “affirm” the 2014 flawed decision of the IJ. In doing so, “the BIA erred by failing to follow this Court’s [1st Circuit’s] instruction to independently consider on remand the documentary evidence and to determine whether that evidence sufficed to establish past persecution.” Basically a “polite description” of “contempt of court” by the BIA.
Among the problems, the BIA failed to mention or evaluate one of the police reports that went directly to the basis for the BIA’s denial. Indeed, in a rather brutal example example of just how un-seriously the BIA took the court’s order, they erroneously stated that there were only two police reports. Actually, the record contained THREE such reports — since 2013!
Faced with the need for yet a second trip to the First Circuit, pro bono solo practitioner Carlos Estrada was “stretched to his pro bono limits.” Fortunately, the amazing pro bono lawyers at Sidley Austin LLP and National Immigrant Justice Center (“NIJC”) heeded the call and assisted Estrada and his client in their second petition for review.
With help from this “team of experts,” for the second time, the respondent “bested” EOIR and DOJ in the Circuit! While conceding that the BIA had errored in not complying with the court order, OIL, now under the direction of Dem A.G. Merrick Garland, advanced specious “alternative reasons” for upholding the BIA’s second flawed decision. These were emphatically rejected by the First Circuit! That court also noted that the (supposedly “expert”) BIA had applied the wrong legal standard in the case!
A rational person might think that after nearly a decade, this “charade of justice” would finally end, and the respondent would get her long-delayed, thrice-erroneously-denied relief. But, that’s not the way this dysfunctional and disreputable system works (or, in too many cases, doesn’t).
The First Circuit “remanded” the case to EOIR a second time, thus giving the BIA a totally undeserved THIRD CHANCE to improperly deny relief. Who knows if they will, or when they might get around to acting.
But, within Garland’s dystopian system, which lacks quality control, doesn’t require recognized expertise in human rights from its “judges,” and tolerates a BIA dominated by Trump-appointed appellate judges known for their records of hostility to asylum and related forms of protection from persecution and/or torture, a result favorable to the respondent, within her lifetime, is far from guaranteed.
As Attorney Carlos Estrada summed it up to me, “I just couldn’t do it [the second petition for review] pro bono by myself. I’m a solo practitioner. Such a waste of time and effort.”
Indeed, Garland’s failure to institute even minimal standards of due process, fundamental fairness, impartiality, expertise in his EOIR “court” system is unfairly stretching scarce pro bono resources beyond the limits, as well as denying timely, often life-saving or life-determining justice to individuals.
In a fair, functional, professional system, Estrada, Sidley Austin, and NIJC could be helping others in dire need of pro bono assistance. The respondent could have been enjoying for the last decade a “durable” grant of protection from persecution instead of having her life “up in the air” because of defective decision-making at EOIR and ill-advised “defenses” by OIL. The system could be adjudicating new cases and claims, instead of doing the same cases over and over, for a decade, at three levels of our justice system, without getting them right.
If you wonder why Garland’s broken EOIR is running an astounding 2.1 million case backlog, it’s NOT primarily because of the actions of respondents and their lawyers, if any! It has much to do with “Aimless Docket Reshuffling,” in “full swing” under Garland, incredibly poor judicial administration by DOJ/EOIR, poor judging by too many incumbents who lack the necessary expertise and demonstrated commitment to due process and fundamental fairness, poor administrative and judicial practices, inadequate training, and a toxic “culture of denial and disrespect for immigrants’ rights” that has been festering for years!
Do YOU think that sagas like this represent a proper approach to “justice in America at the retail level.” I don’t! But, incidents like this occur on a daily basis at EOIR, even if most escape the public spotlight!
“Out of sight, out of mind!” But, sadly, not so for the individuals whose lives are damaged by this system and their long-suffering attorneys, whose plights continue to be studiously ignored by Garland and his lieutenants. (Has Garland EVER offered to meet with the private, pro bono bar to find out what really is happening in “his” courts and how he might fix it? Not to my knowledge!)
Hats way off to Carlos E. Estrada, Esquire; Kenyon C. Hall, Jack W. Pirozzolo, and the rest of the folks at Sidley Austin, LLP (I note that Sidley generously has provided outstanding pro bono briefing assistance to our “Round Table” in the past); and Charles G. Roth and his team at the National Immigrant Justice Center for this favorable outcome and for insuring that justice is done. Garland and the Dems might not care about justice for persons in the U.S. who happen to be migrants, but YOU do! That, my friends, makes all the difference in human lives and in our nation’s as yet unfulfilled promise of “equal justice for all.”
“Just a little unpleasantness, harassment, and even basic suffering,” nothing to worry about, say Garland’s EOIR judges! Too many EOIR judges still operate in an “alternate reality” where legal rules, humanity, logic, and common sense are suspended! Wood engraving by A.F. Pannemaker after B. Castelli. Creative Commons Attribution 4.0 International license.
In March 2014, Hernandez-Martinez was on his way to work when two men approached him, demanding money and threatening to kill him if he did not pay. Hernandez-Martinez did not know who the men were. The men told him that they knew where he lived and would harm him or his wife if he did not comply. They also instructed him not to go to the police.
Hernandez-Martinez went to the police later that day. Two police officers told Hernandez-Martinez not to be afraid because they would “take matters into their own hands,” and they offered to drive him home. Instead, they delivered him to the men who had threatened him earlier. The men hit Hernandez-Martinez in the face, cut his waist with a knife, burned his right foot with motorcycle exhaust, dragged him, repeated their threats, and beat him senseless. The police appeared to know his assailants and laughed while the men were assaulting him. Hernandez-Martinez recovered consciousness in a hospital, where he stayed for three or four days. When he had sufficiently recovered, he promptly fled to the United States to join his wife and then four- or five- year-old son, who had already made the journey.
. . . .
The IJ’s reasons are not at all clear. She more or less simply stated the elements of a CAT claim and asserted that Hernandez-Martinez did not establish those elements without specifying which elements were found wanting, or why.2 In addressing the asylum claim, the IJ did comment on the severity of harm inflicted on Hernandez-Martinez, stating that the abuse he suffered did not “rise above the level of unpleasantness, harassment, and even basic suffering.” We agree with the government that were this a supportable description of the harm inflicted, it would not support a CAT claim. We disagree, though, that the facts found support such a description. More to the point, as a matter of law we reject the implicit claim that the harm visited upon Hernandez-Martinez was not severe enough to qualify as torture.
. . . .
****************************
It’s actually pretty hard to get a “rise to the level of torture” case wrong as a matter of law! But three levels of Garland’s DOJ managed to pull it off!
EOIR’s “holdover Ashcroft/Sessions/Barr era” deny every CAT claim approach seems to be running into problems in the “real” Federal Courts. Nothing that competent BIA Appellate Judges couldn’t solve. But, don’t hold your breath!
This absurdist CAT “adjudication” and its beyond absurd, unethical defense by OIL (“doesn’t even rise to the level of persecution,“ citing inapposite cases, gimmie a break) falls below minimum legal and professional standards in every conceivable way: at the IJ, the BIA (“summary affirmance”), and OIL!
That nearing the halfway point of the Biden Administration there is no Senate-confirmed Assistant AG running the all-important Civil Division, which supervises OIL, shows just how grossly deficient and indolent Dems’ approach to “justice at Justice” has been — both within the Biden Administration and in the Senate.
This stunningly defective, shallow, basically non-existent “analysis” by this IJ shows an out of control system where judges feel free to enter defective deportation orders in life or death cases without much thought and without fearing any accountability from the BIA. The latter obviously is an “any reason to deny” assembly line where clearly unacceptable performance by IJs is “rubber stamped” so long as the result is “deny and deport!”
What’s happening at Garland’s EOIR is analogous to a patient going into the hospital for knee replacement, getting a lobotomy by mistake, and dying to boot. Yet, the “hospital administrator “ shrugs it off as just “business as usual,” a “minor mistake” — “good enough for surgery” and lets the team of quacks keep operating and killing folks!
Gosh, even lesser legal luminaries like Gonzalez and Mukasey finally “got” that EOIR was totally out of control and off the wall in the aftermath of Ashcroft’s “due process purge” and mal-administration. They actually took some “corrective action,” even if largely ineffectual and mostly cosmetic.
It’s also no accident that a disproportionate amount of EOIR’s bad judging and docket mismanagement is inflicted on migrants of color, particularly those from Latin America and Haiti, and their representatives. Much as the Biden Administration tries to ignore it, there is a clear connection between institutionalized xenophobia and racial bias in our immigration system and the problematic state of racial justice elsewhere in the U.S.
Obviously, there is expert judicial talent on the EOIR bench and in the private sector that could be recruited and elevated to fuel a “due process, great judging, and best practices renaissance” in this dysfunctional, inherently unfair, and grotesquely mal-administered system! But, equal justice and minimal professional standards at EOIR can’t wait! Lives are going down the drain, and wasteful corrections and “Aimless Docket Reshuffling” further cripple this already “rock bottom” system every day.
Garland must finally “swap out the deadwood and under-performers” at the BIA and senior management at EOIR HQ in Falls Church. He needs to bring in the available, proven talent from both Government and the private sector to lead and guide his mockery of a court system back to at least a minimal level of competence, professionalism, and accountability.
It’s well within Garland’s authority to “end this disreputable, deadly ‘clown show’ at EOIR!” Dems both inside and outside Government should be demanding reforms and accountability!
