"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Executive Office for Immigration Review (EOIR)
Board of Immigration Appeals
Falls Church, Virginia
Announcement #: AIJ-11092243-21-AS
Application Deadline: April 29, 2021
Appellate Immigration Judges are commissioned to serve in the capacity of an appellate immigration judge in formal, quasi-judicial proceedings to review the determinations of immigration judges in removal and related proceedings, and of certain officers of the DHS in visa petition proceedings and other matters. All Appellate Immigration Judges review the record on appeal, including briefs, exhibits, and transcripts, and hear oral argument when conducted. The Appellate Immigration Judge may concur or present dissenting opinions based on his/her view of any given case. The majority of the Appellate Immigration Judge’s duties fall into the general categories of removal proceedings, discretionary relief, claims of persecution, stays of removal, visa petitions, administrative fines, bond and detention, and immigration judge. Although the majority of the Appellate Immigration Judges’ time concerns hearing appeals, the incumbent is also qualified to conduct and may be assigned to conduct proceedings in the first instance as an immigration judge.
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The unusual nature of the latter announcement prompted the following responses.
From Dan Kowalski:
“Appellatte? Do you get a free latte every day as you walk in the door?”
And, from “Sir Jeffrey” Chase:
“Candidates with lactose intolerance need not apply.”
They might also have meant “Appellate Immigration Judge Lite.”
The DOJ must use the same proofreader as I do over here @ Courtside!
Here’s the Deal
If enough folks bore from within,
And the rest hurl bombarding din,
The Tower of Babel will fall,
And there will be equal justice for all!
—An original poem by Paul Wickham Schmidt
EOIR HQ, Falls Church, VA (a/k/a “The Tower of Babel”) By Pieter Bruegel The Elder Public Domain
WASHINGTON—President Biden is set to sign an executive order keeping the refugee admissions cap for this year at a record-low 15,000, but eliminating Trump administration restrictions on which types of refugees qualify under that cap.
. . . .
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Read Michelle’s full article at the link.
Administrations come, Administrations go. One constant: Human rights remain at the very bottom of the political “to do” list! It’s always a tough time to be a refugee. But, maybe even worse when you thought that, finally, there was a little hope on the horizon!
Sad times for some very vulnerable people and their tireless advocates.☠️😥
Dead Refugee Child Washes Ashore in Turkey — Every once and awhile, a dramatic picture makes us stop and think about the plight of refugees. BUT, NEVER FOR LONG! PHOTO: independent.co.uk
David Dixon / Humanity Adrift on the Sea of Life by John Cassidy / CC BY-SA 2.0 Creative Commons License
Heard on the street:
I just sat through an EOIR stakeholder meeting where the ACIJ (who had no immigration experience when he was hired), talked about how terrible the job is. Made it clear he had no power to make any change and just had to listen to HQ. He is resigning after one year. Then he tried to convince AILA members to apply for the open positions.
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I support the idea of the private bar applying for these positions. One of the BS reasons that EOIR execs historically give for their one-sided hiring practices is that “nobody good ever applies from the private sector.” That’s always been a total crock! But, one way of crashing this intentionally “closed system” is by overwhelming it with applications from the “best and the brightest” from the NDPA. Sometimes, positive change comes from inside and below, particularly when “leadership” is dysfunctional.
“Bore from within,” as Dan Kowalski says! In a system as thoroughly rotten as this one,“boring” could be an effective means of forcing long-overdue change, even sanity, into a system that is an ongoing national disgrace and a blight on our nation’s humanity! (Other than that, I’m a big fan!)
WASHINGTON – Jose Sanchez and Sonia Gonzalez have lived in the United States legally for two decades under a program that lets immigrants from nations enduring natural disasters and armed conflict temporarily avoid returning to their native countries.
But when the New Jersey couple applied for green cards – which would let them remain permanently – they were denied because they initially entered the country illegally.
The Salvadorans sued in 2015 and the Supreme Court will hear their appeal Monday in a case that has drawn little attention in Washington even as it has raised significant questions about the Biden administration’s approach to immigration – not to mention the status of hundreds of thousands of immigrants living in a state of limbo.
. . . .
“Look, this is a no brainer,” said Paul Wickham Schmidt, a Georgetown University law professor and former immigration judge. “Why waste time on it? The administration has indicated they’d like to regularize many [TPS beneficiaries] and…instead they’re defending a gimmick cooked up by Stephen Miller,” Trump’s onetime policy adviser.
. . . .
“Integrate them into our society rather than leaving them in permanent limbo – in theory, that’s what the Biden administration says it wants to do,” said Schmidt, the former immigration judge. “Only here’s their first chance to make it happen and they don’t connect the dots.”
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Read John’s complete article at the above link.
Yeah, I know this brain-dead position originated in the Obama Administration. I’d never accuse the Obama Administration of overall having a wise, informed, or consistent approach to immigration. But, the “precedents” at issue here were issued under Trump. SeeMatter of H-G-G-, 27 I. & N. Dec. 617 (AAO 2019); Matter of Padilla Rodriguez, 28 I. & N. Dec. 164 (BIA 2020).
Any time you see folks like Ira Mehlman @ FAIR or Christopher Hajec @ Immigration Reform Law Institute endorsing a position you can bet that there is a link to the cruel, White Nationalist policies of Stephen Miller and his cronies in the Trump Administration. If you had any doubt that the position being taken by the Garland DOJ was stupid policy, Mehlman’s and Hajec’s endorsements, and the organizations they represent, should resolve them.
Ignoring your potential friends and supporters; embracing the “racist right.” Interesting way to get started on what was promised to be a “smarter, kinder, more humane” approach to immigration policy. Can anyone really tell me what Judge Garland is doing over @ DOJ? The once highly regarded jurist who testified before Congress and was only a Mitch McConnell away from a seat on the Supremes seems to have all but disappeared into a bureaucratic fog of incompetence, bad lawyering, and missed opportunities @ the DOJ!
Look, after four years of senselessly, wastefully, and disgracefully trying to dump on long-time, contributing members of our society in TPS, like Jose & Sonia, the Trump Administration (thankfully for America) never removed any of them. The idea that the Biden Administration will do so is absurd.
So these folks are here for the duration. With Congress in deadlock, the most practical, legal, readily available way of getting tens of thousands of hard-working residents like Jose and Sonia fully integrated into our society and on their way to citizenship is simply by following the clear statutory language as other Circuit Courts have done. These are individuals who actually have met all the criteria of our legal immigration system! Most now have families with U.S. citizens. Why on earth would we want to keep those we should welcome in limbo? It’s cruel, counterproductive, and stupid!
For a much more scholarly and nuanced approach to DOJ’s wrong-headed handling of this case, check out this article in Just Security by my friend, renowned immigration expert, former senior executive in the Clinton and Obama Administrations (we actually met while working on the Refugee Act of 1980 in the Carter Administration — back when we were young), emeritus Professor David A. Martin:
I also note with pleasure that counsel of record for Jose and Sonia is Jamie W. Aparisi, who appeared before many times at the Arlington Immigration Court.
All this being said, the Supremes still mightpreserve this couple’s future and save the Garland DOJ from themselves. In past cases, faced with clear statutory language, the Supremes have required the Government to do something radically sensible:follow the law!See, e.g., Pereira v. Sessions, 138 S.Ct. 2105 (2018) (notice to appear).
So, who knows? Justice (not to be confused with the Department of “Justice”) as well as common sense and human decency could again prevail!
TIJUANA—In the weeks after Joe Biden’s inauguration, migrants across the city of Tijuana began to leave the various shelters and apartments where they’d been living in favor of an open-air encampment just north of the city’s center. It’s not a cheerful place; people have little to eat and there’s no running water. But it has a crucial location: It’s right next to the El Chaparral Port of Entry, the nearest legal crossing into the United States. Anticipating that the doors to the U.S. might soon open, they set up at the very foot of the country’s entrance.
In February, Rosemeri, an asylum seeker from El Salvador, says she pitched a tarp next to just two others. By early March, it had grown into a shantytown of more than 1,000 people, and today as many as 2,000 migrants — most of them families with children — brave the elements each day and night. Together, the makeshift community decided on a name for the tent city: La Esperanza, The Hope.
Rosemeri, like most people in the camp, is not a new arrival to Tijuana. She left her home in El Salvador in 2019, fleeing threats against her life from the gang that controls her neighborhood. Her plan was to request asylum in the U.S. But by the time she arrived at the southern border last April, a month into the Covid pandemic, it had been closed indefinitely to asylum seekers by a Trump administration public health order. Since then, she and tens of thousands of others have had no choice but to wait in northern Mexico, shuffling from shelter to shelter for months, hoping for a change in policy.
“We are Salvadorans, Hondurans, Haitians, Cubans, Mexicans, Nicaraguans,” she told me of the residents of La Esperanza. “We are here, all of us, waiting.”
The early months of Biden’s administration have been shadowed by a major increase in immigration, with border agents encountering more than 100,000 people attempting to cross unauthorized in February and more than 170,000 in March, a 15-year high. Critics on the right blame the president’s welcoming rhetoric, saying that after Donald Trump’s hard-line tack toward the border, it’s no wonder migrants are rushing in under supposedly softer leadership. But migrants themselves have a very different view: The issue isn’t Biden extending a hand; it’s that he hasn’t figured out what he wants to do — and has kept the legal pathway closed in the meantime.
Despite promising a new approach, Biden has left the effective asylum ban in place, with few exceptions. Realizing they have no prospect for legal entry into the U.S. anytime soon, many migrants like the ones here, stuck in Tijuana without a safe home to return to, are making the painful decision to try to cross the border outside the proper channels.
“We want to do this the right way,” insists Rosemeri.
The problem for people like her is that there is currently no “right way.” The Biden administration says this is all a work in progress. “We’re in the middle of a global pandemic, and it’s going to take time to rebuild robust asylum processing infrastructure at our borders,” an administration spokesperson told me in an interview last month. The White House did not respond to specific questions for this story.
Republicans in Washington have been saying Biden is too lenient, but people on the ground in Mexico suggest the root of the recent rise in unauthorized border crossings is actually the president’s prolonged maintenance of the most restrictive of his predecessor’s policies: the near-complete cutting off of asylum, a form of legal immigration.
. . . .
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Read Jack’s much longer full article at the link. It’s one of the few accurate, insightful pieces of reporting I’ve seen on the “overhyped yet generally mis-understood” human catastrophe at continuing to unfold at our southern border.
The problem starts, but by no means ends, with Judge Garland’s mind-boggling failure to grasp and take steps to end the deadly clown show @ EOIR! You can’t re-establish the rule of law and enforce the Constitution with inept holdover bureaucrats and unqualified Trump-Miller appellate judges in charge of the critical “retail level” of the American justice system!
Get some real, expert judges, competent judicial administrators, and fearless legal leadership, dedicated to human rights, fundamental fairness, and due process for all, into key positions @ EOIR before this system gets any further out of control, creates additional disorder throughout our legal system, and destroys more human lives!
The folks who can start fixing this are out there. Some of them (sitting Immigration Judges like Judge Dana Leigh Marks, Judge Amiena Khan, Judge Noel Brennan, Judge, Janette Allen, Judge Dorothy Harbeck, Judge Mimi Tsankov, and others) are even on the payroll outside the DC area. Many others in the private sector should already have been vetted and on the job solving problems, at least on a temporary basis!
(Let’s start, but not end, “Project Restore Due Process & Asylum Integrity,” with, say, Dean Kevin Johnson, Associate Dean Jaya Ramji-Nogales, Professor Karen Musalo, Michelle Mendez, Professor Ingrid Eagly, Marielena Hincappie, Lauren Wyatt, Professor Phil Schrag, Professor Andy Schoenholtz, Heidi Altman, Professor Debbie Anker, Judge (Ret.) Ilyce Shugall, Judge (Ret.) Rebecca Jamil, Professor Michele Pistone, Claudia Valenzuela, Claudia Cubas, Professor Jill Family, Professor Raquel Aldana, Professor Mary Holper, Liz Gibson, Greg Chen, Professor Peter Moskowitz, Laura Lynch, Dree Collopy, Professor David Baluarte, Professor Maureen Sweeney, Professor Lenni Benson, Eleanor Acer, Adina Appelbaum, Professor Elora Mukherjee, Professor Erin Barbato, Aaron Reichlin-Melnick, Jason “The Asylumist” Dzubow, Professor Alberto Benitez, Professor Paulina Vera, Professor Cori Alonso Yoder, Professor Kari Hong, Professor Denise Gilman, Tess Hellgren, Simon Sandoval-Moshenberg, Professor Laurie Ball Cooper, Associate Dean Jayesh Rashod, Ben Winograd, Associate Dean David Baluarte, and work from there! All of them are head, shoulders, knees, and toes above the current EOIR senior management and Appellate Judges on the BIA.)
Recently, I made these points in speaking to a group of retired lawyers who had no prior background in immigration law. At the end, one of them said: “The fix you described doesn’t sound that difficult. Why hasn’t it happened?” BINGO!
It’s not rocket science! But apparently “above the pay grade” for “Team Biden!”That’s a shame for American justice, any international leadership capability we might still have on this issue, and, most of all, for the vulnerable human beings that Biden, Mayorkas, and Garland have left “twisting in the wind.”
The Biden/Garland Image of Legal Asylum Seekers & Their Supporters” “Twisted by the Wind” By Ron Strathdee
I can assure the Biden folks that continuing the Trump/Miller policies and leaving their “plants and toadies” in place won’t win a single GOP vote — on anything! Truth, facts, the law, and human decency play no role in today’s GOP. You could shoot everyone dead at the border (as opposed to sending them back to Mexico and the Northern Triangle to die) and magamorons like Cruz, Hawley, and Cotton will still claim that you have an “open borders policy.”
However, your lack of positive action on asylum and refugee issues will continue to anger and betray your own supporters and mobilize them to oppose your “tone-deaf” and ineffectual policies, in court, in the media, and in politics. Doesn’t sound like a smart move to me!
Here’s the real irony. Liberal House Dems have invested in a DOA legislative effort (already “shot down” by Speaker Pelosi) to expand the Supremes. Meanwhile, over at the DOJ,Judge Garland is squandering his chance to completely rebuild and refocus the nearly 600 strong (now totally dysfunctional) Immigration Judiciary into something really special (in a good, rather than an evil, way).
That happens to be the most powerful and readily achievable way of creating a progressive, due process oriented, intellectually dominant, expert “model judiciary” that will remake the “retail level” of American justice, save human lives, advance correct practical, sensible applications of the law and the Constitution that will actually save lives, teach “best practices,” promote racial justice, and change the face of American justice for the better.
Better judges for a better America! It starts with the foundational “retail level” of our justice system — the Immigration Courts. Unlike packing the Supremes, it’s realistically achievable with courageous focused leadership (not the current failed group and indifferent leadership from Judge Garland.)
“Personnel is policy” — big time! Too bad for all of us that Judge Garland doesn’t seem to “get it.”
In that, his “grasp of the obvious” seems to be several levels below that of Trump, Miller, the Federalist Society, the Heritage Foundation, and Mitch McConnell. Think what you might, that gang has run circles around Dem politicos for years. Jeff “Gonzo Apocalypto” Sessions and Billy Barr “got” the importance of expanding the BIA and the Immigration Judiciary and “packing” them with many unqualified anti-asylum restrictionists who would do their bidding in undermining and destroying American justice and “Dred Scottifying” the “other,” particularly those of color, with a solid dose of mind-numbing misogyny thrown in.
To date, (with a few exceptions, like removing former Director James McHenry) Garland has failed to remove or transfer these unqualified jurists (and incompetent administrators) and start bringing in better ones, even though he has the available tools to have commenced by now. Indeed, several Miller cronies are still wandering around the Falls Church Tower in key positions, while other members of the Trump Administration’s “Asylum Denial Club” continue to crank out nativist injustice at the BIA. A number are notorious for their overtly hostile attitudes toward female asylum seekers of color and their attorneys. Yet, asylum seekers and their lawyers continue to suffer unjust and unprofessional treatment at EOIR while their abusers continue unabated in Garland’s name!
Aggressively “removing the deadwood” also sends strong messages throughout the system that the “dehumanize, deny, and deport culture” ingrained and actively encouraged at EOIR over the past four year is over!
Meanwhile, over at the broken SG’s Office, Garland is getting ready to defend one of the stupidest, most legally inane, and insanely counterproductive from a policy standpoint positions in recent memory (and that’s saying something given the performance of the Trump SG) in Sanchez v. Mayorkas . The Garland DOJ is actually committing “unforced error” by defending a clearly wrong interpretation of the TPS statute that will unnecessarily screw long-time law-abiding TPS holders, many of them spouses of U.S. citizens, who could otherwise qualify for legal immigration under current law. Shafting the VERY INDIVIDUALS the Biden Administration pledged to help and keeping them in “eternal legal limbo” while unnecessarily outraging their lawyers and potential allies. What sense does that make? If “Team Garland” can’t recognize and pick the “low hanging fruit” in the battle to restore legality and sanity to our immigration system, it’s going to be a long four years.
Professor David Martin, one of the top minds in American law, in any field, and a “vet” of past Dem Administrations, laid out the possible solutions in a crystal clear manner in Just Security. But, apparently when you’re caught up in running “Amateur Night at the Bijou” you can’t be bothered to listen to the experts who have “been there before” and learned from their experiences!
Judge Garland is recruiting folks for his SG’s Office who will continue to make the same wrong-headed arguments on immigration cases that the past two Administrations did. No Immigration or human rights expertise necessary. Check your common sense and humanity at the door. PHOTO: Thomas Hawk Creative Commons
This could be our “last clear chance” to save American democracy! Right now, it’s going to waste! That’s something that should outrage and motivate all of us who believe that “due process for all persons” means exactly what it says!
Georgetown LawProfessor Philip G. Schrag Georgetown Law Co-Director, CALS Asylum ClinicProfessor from Practice; Director, Human Rights Institute; Director, Center for Applied Legal Studies PHOTO: GeorgetownLawProfessor Jaya Ramji-NogalesAssociate Dean for Academic Affairs I. Herman Stern Research Professor Temple Law PHOTO: Temple Law
WASHINGTON – On Thursday, April 15, 2021, three law professors from Georgetown Law and Temple University will discuss their new book, The End of Asylum, the Trump administration’s legacy on asylum policy, and where the Biden administration goes from here.
WHAT
Migration at the southern border and asylum are again front page news. The Biden administration claims that mounting numbers of children and families in immigration detention facilities and shelters is attributable to the Trump administration’s destruction of the asylum system. In their new book, The End of Asylum, three law professors analyze the nature, scope, and lawlessness of that destruction and the end of the promise that Congress made, in the Refugee Act of 1980, to welcome migrants who feared persecution abroad. They also propose steps that the Biden administration can take, both alone and in cooperation with Congress, to restore and improve a robust system of asylum in America.
The event is co-sponsored by Online and On Topic, Georgetown School of Foreign Service; Migration and Refugee Policy Initiative, Georgetown McCourt School of Public Policy; Georgetown University’s Institute for the Study of International Migration; and Temple University Beasley School of Law.
WHO
Philip G. Schrag
Georgetown Law Delaney Family Professor of Public Interest Law; Co-Director, Center for Applied Legal Studies (Georgetown Law’s asylum clinic)
Andrew I. Schoenholtz
Gerogetown Law Professor from Practice; Director of the Human Rights Institute and Co-Director of Center for Applied Legal Studies at Georgetown Law
Jaya Ramji-Nogales
Associate Dean for Academic Affairs and the I. Herman Stern Research Professor at Temple University’s Beasley School of Law
Al Bertrand (moderator)
Director of Georgetown University Press
Georgetown University Law Center is a global leader in legal education based in the heart of the U.S. capital. As the nation’s largest law school, Georgetown Law offers students an unmatched breadth and depth of academic opportunities taught by a world-class faculty of celebrated theorists and leading legal practitioners. Second to none in experiential education, the Law Center’s numerous clinics are deeply woven into the Washington, D.C., landscape. Close to 20 centers and institutes forge cutting-edge research and policy resources across fields including health, the environment, human rights, technology, national security and international economics. Georgetown Law equips students to succeed in a rapidly evolving legal environment and to make a profound difference in the world, guided by the school’s motto, “Law is but the means, justice is the end.”
Only one major problem: Phil, Andy, Jaya, and others like them should be running EOIR & the BIA by now, putting their “practical scholarship” and organizational skills into action to reform this disgracefully dysfunctional, life and democracy-threatening system and to restore due process, professional competence, and the rule of law to the U.S. Immigration Courts where it has disappeared!
As I’ve said many time before: It’s not rocket science, 🚀 but it has (quite avoidably) become “mission impossible” with the indolent, tone-deaf, approach that Judge Garland and his team have exhibited at the DOJ to date. Par for the course in Dem Administrations. But, bad news for those of us who believe in due process, social justice, and equal justice for all persons in America. (Hey, isn’t that right out of the Constitution?)
It’s like nobody in the Biden Adminhistration ever toured the “St. Louis Exhibit” or the exhibits in the “German Judiciary” sections of the Holocaust Museum. Perhaps Judge Garland and others need a “VIP Tour,” after hours!
🇺🇸⚖️🗽Due Process Forever!
DISCLAIMER: My views as expressed above are solely my own and do not represent the position of any of the panelists, Georgetown Law, or any person or entity, living or dead, of any importance whatsoever!
Asked repeatedly (by me and others) what accounts for Biden’s delay, White House officials have struggled to answer. Sometimes they try to blame Trump, complaining that his administration left a system in “disrepair” that requires “rebuilding.” No doubt, Trump wrought a lot of damage upon the immigration system, and more resources would be necessary to reach the much higher refugee admissions that Biden claims he wants for the next fiscal year (125,000); currently, there aren’t enough people sufficiently far along in the refugee-screening pipeline to meet that goal.
But none of this explains why the few thousand already fully vetted and deemed “travel-ready” by the State Department as of early March have not been allowed in. The only thing preventing their entry is Biden — who refuses to do the right thing and sign a simple document.
The only explanation I can fathom for what’s going on is that the White House fears ordinary Americans will confuse the refugee resettlement system with the surge of migrants at the southern border. “Refugees” and “asylum seekers” might sound synonymous, but the groups are subject to different sets of laws, screening procedures and executive authorities. One key difference is that refugees apply from abroad and are screened for eligibility before they arrive; asylum seekers apply from within our borders or at a port of entry.
In other words, refugees are doing precisely what both Biden and Republicans urge those fleeing persecution and violence to do: staying abroad, and not crossing into the United States unlawfully; proving to U.S. and international officials that their lives are indeed in danger, and that they meet the legal requirements for resettlement; enduring extensive screening to prove they don’t threaten national security or public health; and then patiently waiting their turn for admission, a process that usually takes years.
And how is Biden rewarding them? The same way Trump did: by slamming the door.
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Read Catherine’s complete article at the link.
[The Biden Administration] fears ordinary Americans will confuse the refugee resettlement system with the surge of migrants at the southern border.
Wow. In 50 years of “hanging around” the migration/human rights/political scene in D.C., I’ve heard plenty of insanely lame, cowardly excuses for not doing the right thing. But, this is “Top Five” material!
I have ideas on how to solve this problem, quickly:
Invest the “big bucks” to hire Catherine as the Biden Administration’s “Head Immigration Flackie.” She can explain the situation in terms that the American people will understand. That’s what Catherine does! Brings clarity, humanity, and common sense to complicated situations that flummox politicos and press offices.
Alternatively, get a “Loaner Law Student” from the Georgetown Law CALS Asylum Clinic. In two decades of working with CALS students in court, the classroom, and elsewhere, I’ve never run into one who doesn’t have a deeper understanding of, and better ability to explain, refugee and asylum policy than any of the “inept talking heads” the Biden Administration has thrown into the fray so far.
Georgetown Law
Another alternative: Hire Don Kerwin, currently the Executive Director of the Center for Migration Studies (“CMS”) to fix and explain the Administration’s (so far) mind-boggling failure to re-establish our refugee and asylum programs — actually both legal and moral obligations (although you wouldn’t know that by listening to the mindless negative natter from politicos of both parties). Don probably knows more than any living person about the amazing, quantifiable, benefits that refugees and asylees bring to our nation and is an expert at puncturing all of the White Nationalist myths and fear-mongering that have driven these essential programs into complete failure over the past few years.
Donald M. Kerwin Executive Director Center for Migration Studies
It’s also worthy of note that because of the Trump Administration’s “malicious incompetence” combined with the Biden Administration’s “willful incompetence,” against the background of an Attorney General unwilling to speak out and stand up for the legal rights of refugees, asylum seekers, and people of color in general, (just what is the purpose of an Attorney General who won’t stand up for the people — some of us thought, erroneously I guess, that we had voted that “model” out of office last November) we have no refugee program in Latin America and we have illegally closed ports of entry to legal asylum seekers.
So there is no regular system for asylum seekers to apply in an orderly fashion in accordance with our international, statutory, and Constitutional (not to mention moral) obligations. In violation of the mandatory provisions of Article 33 of the U.N. Convention, incorporated by the Refugee Act of 1980, every day we return legitimate refugees to danger, torture, or death without any inquiry at all. The “law violators” here aren’t the desperate folks vainly, yet gamely, trying to apply for asylum under our lawless system. It’s us!
Maybe, that’s why the Biden Administration doesn’t want anyone to understand what they really are doing and how wrong-headed it is!🤮👎🏴☠️
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”“The Maelstrom” Bjorklunden
COVID-19 & Closures
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
EOIR Status Overview & EOIR Court Status Map/List: Unless previously specified on the court status list, hearings in non-detained cases at courts are postponed through, and including, May 14, 2021. (It is unclear when the next announcement will be. EOIR announced 5/14 on 3/29, 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28.) There is no announced date for reopening NYC non-detained at this time.
NYT: The parents of 61 migrant children who were separated from their families at the U.S.-Mexico border by the Trump administration have been located since February, but lawyers still cannot find the parents of 445 children, according to a court filing on Wednesday.
NYT: Trump tried to end a 30-year program that shielded migrants, many fleeing conditions that U.S. foreign policy helped foster. What does America owe them?
WaPo: The agent recorded the interaction, which was widely shared on the Internet, seen by many as a glimpse into the desperation of unaccompanied children arriving at the U.S.-Mexico border.
NYT: The fund, which could provide payments to hundreds of thousands of people excluded from other pandemic relief, ignited a battle among state lawmakers before it was approved.
WaPo: It is unsurprising that the needs of women facing persecution were not considered in 1951. It is also not surprising — though it is disappointing — that Congress wrote this outdated framework into the Refugee Act of 1980.
The BIA ruled that an applicant may seek withholding of removal from a country even if that country is different from the country of removal originally designated in the reinstated removal order on which the withholding-only proceedings are based. Matter of A-S-M-, 28 I&N Dec. 282 (BIA 2021) AILA Doc. No. 21040936
The court upheld the BIA’s determination that the central reason for the Salvadoran petitioner’s claimed harm was his unwillingness to join the MS-13 gang—not his Christian faith or his faith-related activities. (Sánchez-Vásquez v. Garland, 4/7/21) AILA Doc. No. 21040938
The court held that the BIA did not abuse its discretion in denying the petitioner’s motion to reopen filed nearly 11 years after the denial of his cancellation of removal application, finding that he did not show that equitable tolling was warranted. (Quiroa-Motta v. Garland, 4/6/21) AILA Doc. No. 21040933
The court held that res judicata did not bar the government’s second charge of removability against the petitioner, because the second removability charge was based on a different statutory provision and was unavailable when the first charge was brought. (Cruz Rodriguez v. Garland, 4/1/21) AILA Doc. No. 21040939
Withdrawing its opinion filed on 7/10/20, the court held that the BIA did not abuse its discretion in holding that petitioner, who had been convicted three times of petty theft under California Penal Code §484(a), was removable pursuant to INA §237(a)(2)(A)(ii). (Silva v. Garland, 3/30/21) AILA Doc. No. 21040940
Law360: The Ninth Circuit on Thursday declined to reconsider its decision to halt the Trump administration’s policy restricting asylum for migrants who cross through another country on the way to the U.S., rejecting the government’s argument that the July opinion was riddled with errors.
Law360: A split Ninth Circuit on Thursday denied a bid by Republican attorneys general to revive the “public charge” rule, with U.S. Circuit Judge Lawrence VanDyke dissenting to say that the Biden administration ensured that the rule “was gone faster than toilet paper in a pandemic.”
Law360: The Eleventh Circuit revived a Cuban journalist’s bid for asylum, finding that the immigration courts overlooked and “plainly misstated” evidence that the asylum-seeker had a well-founded fear of future persecution if returned to Cuba.
Law360: The Eleventh Circuit will not overturn the conviction that stripped a man of his citizenship after he pled guilty to lying on a citizenship form question that asked whether he had ever committed a crime for which he had not been arrested.
Law360: A New Hampshire federal judge has denied U.S. Customs and Border Patrol’s dismissal bid in a suit accusing the agency of unlawfully detaining a man at a traffic checkpoint before he was charged for having hash oil, though the court let a border patrol agent out of the case.
Law360: An unauthorized immigrant who says U.S. Immigration and Customs Enforcement targeted him for his activism urged the Second Circuit to maintain jurisdiction over his deportation case, arguing that his claims of illegal retaliation should not be rendered moot because of the government’s repeated delays.
Law360: A class of immigrants challenging a national security program that they claim illegally delays Muslims’ immigration applications urged a Washington federal judge Monday to reject the government’s bid to exclude testimony from three witnesses, saying they are among the foremost experts on the topic offering opinions and not legal conclusions.
AILA and partners filed a complaint on behalf of a class of noncitizens who have been prevented from entering the U.S. due to an unlawful suspension of visa processing. (Kinsley, et al., v. Blinken, et al., 4/7/21) AILA Doc. No. 21040834
DOS announced that the travel of immigrants, fiancé(e) visa holders, certain exchange visitors, and pilots/aircrew traveling for training or aircraft pickup, delivery, or maintenance is in the national interest for purposes of approving exceptions under proclamations restricting travel due to COVID. AILA Doc. No. 20071733
CBP issued guidance to its Carrier Liaison Program on the current boarding policy for lawful permanent residents (LPRs) attempting to reenter the United States who may possess valid or expired documents, depending on the document in possession. The guidance is effective as of March 5, 2021. AILA Doc. No. 21040934
The traditional bureaucratic solution: When you lack the expertise, will, and courage to solve a problem, just aimlessly throw people and taxpayer’s money at it. Actually, somewhat resembles “Trump’s wall.” And likely to be just as effective!
Congrats to Professors Benitez and Vera and GW Law!
“Is there some problem here?” “Random violence?” “Mere common crime?” “Reasonable state protection?” Does Attorney General Merrick B. Garland share the views of one of his predecessors, Jeff “Gonzo Apocalypto” Sessions that lives of of brown-skinned refugee women don’t matter? Is that why Garland hasn’t revoked Matter of A-B-? Is that why Trump/Miller “plants” with notorious records of anti-asylum misogyny directed at Central American women continue to serve as “Appellate Judges” on Garland’s BIA even as refugee women continue to be turned back to “death without due process” at our borders? Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
If YOU were a refugee woman pleading for YOUR LIFE in Immigration Court, who would YOU want as the Judge?
This Stephen Miller clone holdover from the Trump Administration:
“Appellate Immigration Judge” approved by Stephen Miller to find the “final solution” for female refugees of color Image: Hernan Fednan, Creative Commons License
Or these internationally-renowned practical scholar-experts in gender based asylum:
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings LawProfessor Deborah Anker Director, Harvard Law Immigration & Refugee Clinic PHOTO: Harvard Law
This might also be a good time to watch (or re-watch) the following video short featuring the “real” Ms. A-B- (and her lawyers) who was arbitrarily targeted by White Nationalist “Gonzo Apocalypto” Sessions to receive an unwarranted “death sentence” in violation of due process!
So why is Judge Garland retaining the “Trump-Miller-Sessions-Barr BIA” rather than replacing them with much better qualified immigration/human rights experts dedicated to due process like, for example, Alberto Benitez and Paulina Vera?
👍🏼🇺🇸⚖️🗽Due Process For Refugee Women! Tell Judge Garland To End Institutionalized Misogyny @ EOIR!☠️🤮⚰️👎🏻Remove Anti-Asylum Zealots & Those Unwilling To Stand Up For Due Process For All Asylum Seekers From The BIA! Appoint Real Judges To Restore Due Process!
Judge Garland is looking for 100 new Immigration Judges to eliminate the 1.3 million backlog by the end of the century. No expertise necessary! PHOTO: Thomas Hawk Creative CommonsAline Barros Immigration Reporter VOA News PHOTO: Twitter
U.S. immigration courts, already swamped with a backlog of 1.3 million cases, are ill-prepared to handle a crush of new asylum claims filed by a rising number of people crossing the U.S.-Mexico border, especially children traveling alone, current and former immigration judges told VOA.
. . . .
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“The backlog has grown,” said Jeffrey Chase, a former immigration judge and senior legal adviser at the Board of Immigration Appeals. He added there are two ways to handle the situation.
“The response to this usually is: Hire more judges. And I think the response should be: Let’s be smarter about who we put into court and how we prioritize the cases and how we handle the cases,” Chase told VOA.
. . . .
Hon. Dana Leigh Marks U.S. Immigration Judge San Francisco Immigration Court Past President, National Association of Immigration Judges
Dana Marks, a sitting immigration judge in San Francisco who spoke with VOA in her capacity as president of the National Association of Immigration Judges (NAIJ), said the increase in immigration court cases has been gradual and “that’s why I think it stayed under the radar.”
. . . .
U.S. immigration courts are not like the federal courts that most people are familiar with. For one thing, they are housed within the executive branch — specifically, the U.S. Justice Department’s Executive Office for Immigration Review (EOIR).
In addition, immigration cases play out differently than regular court cases where litigants often feel pressure to avoid trial.
“One of the problems with the immigration system, as it currently is — we don’t have plea agreements or stipulations that handle a lot of these cases like you do in a criminal court setting where the parties meet and come up with a mutual compromise and a settlement,” Marks explained. “So every case goes to trial.”
A recent TRAC report concluded that even if the administration of President Joe Biden halted immigration enforcement entirely, “it would still take more than Biden’s entire first term in office — assuming pre-pandemic case completion rates — for the cases now in the active backlog to be completed.”
. . . .
“Our organization has long advocated that the immigration court system be taken out of the Department of Justice, and restructured, like the Article 1 [federal] tax courts,” Marks said.
Aaron Hall, an immigration lawyer in Denver, Colorado, said the immigration court system is currently subject to the whims of whichever party controls the executive branch. But he added that making the courts independent is not enough.
“We still have 1.3 million people in the system,” he said. “There’s no way to both respect due process and push all these cases through in any kind of timely manner. The resolution needs to be immigration reform.
“Having an independent immigration court system is better than having [the courts] in the Department of Justice, but what really needs to change is our [immigration] law,” Hall added.
While the Biden White House has criticized Trump’s handling of immigration cases, the new administration has yet to announce concrete measures to reform the immigration court system or take a position on calls to make it independent from the Justice Department.
***********************
Read the complete article at the link.
Those of us who have served in the Immigration Courts are used to a struggling system unnecessarily in crisis because of a combination of inept bureaucratic management (duh, you can’t treat a court system like an agency, particularly one somewhat resembling the “Legacy INS”) and counterproductive, often ignorant, sometimes malicious, political interference from “Downtown.”
But, the prospect for improvements are bleak, with nobody currently at the “Main DOJ” or at “EOIR Headquarters” who is qualified to lead the way toward rebuilding EOIR so that “teamwork, innovation, and best practices would create a functioning court system that would guarantee fairness and due process for all.” Doesn’t sound like “rocket science” to me.
Let’s be clear about one thing.Not every asylum case needs to go to “full hearing” in a properly staffed Immigration Court system with expert judges trained in asylum law, positive precedents setting forth generous reasonable criteria for granting asylum, and a qualified BIA willing to hold accountable those unqualified Immigration Judges who have established and maintained illegal and disgraceful “Asylum Free Zones” in Immigration Courts throughout America!
Almost 100% of the “asylum precedents” issued by the AG and BIA in the last four years, and the vast bulk of those issued after 2001, tell Immigration Judges how to, and encourage them to, deny asylum, often based on specious reasoning or in conflict with earlier, more generous court and administrative precedents, not to mention the letter and spirit of the U.N. Convention and sometimes the language of the statute and the regulations.
And, due process for asylum seekers and other migrants is mocked in Immigration Court on a daily basis, even as their courageous, often pro bono counsel, are systemically abused! Is this what Judge Garland REALLY stands for? If not, why is he letting it happen?
With competent counsel representing asylum seekers and documenting their cases, and thoughtful well-trained ICE Assistant Chief Counsel with senses of justice, many positive asylum cases can be well-documented, “pre-tried” by the parties, completed, and granted in Immigration Court in a one-hour time slot or less. Indeed, before Sessions and Barr intentionally, senselessly, and maliciously destroyed what was left of justice for asylum seekers in Immigration Court, so called “A-R-C-G- domestic violence cases,” Kasinga FGM cases, family-based asylum cases, Ethiopian and Eritrean political persecution cases, evangelical Christian cases, and LGBTQ+ cases were all staples of my “short docket” — usually conducted every other Friday, at the Arlington Immigration Court. In those days, the parties worked together to get clear grants of relief that were “buried in the backlog” advanced for short hearings, with my active encouragement.
Another largely unexplored alternative is to give Immigration Judges authority to return certainly prima facile grantable asylum cases to a revived and functioning Asylum Office for completion. There are lots of ways that a different group of qualified, well-trained, practical Immigration Judges, and a BIA with Appellate Judges drawn from the ranks of “practical scholars” who are experts in asylum and due process working with (not “under”) professional judicial administrators, could get this system functioning and force those judges who are members of the “Asylum Denial Society” to shape up or ship out. That would keep Immigration Courts from building future unmanageable backlogs by focusing docket time on those cases with real issues needing full hearings. And, nobody’s due process rights would be trampled in the process by mindless “haste makes waste deny everything” enforcement gimmicks such as those the Trump regime constantly tried to impose.
Real court systems are about justice, not “deterrence” or “sending messages,” or even “carrying out Administration policies,” although there shouldn’t be much of a conflict with the latter if the Biden Administration actually lived up to its promises to asylum seekers and other migrants (something it hasn’t shown any inclination to honor, to date). The Immigration Courts, much like Article III Courts, need better judges, not necessarily more of them! Unlike the Article IIIs, which are a long term project, Judge Garland could engineer a solution for the Immigration Courts that would show drastic improvements before the end of this year and get better every year thereafter!
But, with the current gang at DOJ and Falls Church, (remarkably still riddled with Trump holdover bureaucrats and anti-asylum “appellate judges” churning out negative precedents) it’s “mission impossible.” Not a professional judicial administrator or qualified appellate judge among them!
There are folks who could institute the bold, yet obvious, steps necessary to clean up the backlog in relatively short order without stomping on individual rights; come up with merit-based judicial hiring criteria; issue precedents that would advance, not retard, due process for asylum seekers; institutionalize best (rather than worst) practices; “kick tail” until some working basic modern technology (like e-filing) is in place; learn from the private bar’s in-court experiences; put some professional judicial training in place; and return docket control and administration to local courts, where even a minimally competent judicial administrator (in other words, NOT an agency bureaucrat or DOJ politico) would know it belongs.
Now is the time to toss the deadwood and get this system back on track — before the next wave of asylum cases hit the mind-boggling dysfunction in today’s Immigration Courts. How does anyone think that throwing 100 additional Immigration Judges into this disaster zone (the Administration’s budget proposal) will solve the systemic mess and the institutionalized failure to provide anything resembling justice?
Unfortunately, the folks who could do the job are either sitting judges in the Immigration Courts or in the private/NGO sector. And, despite warnings and pleas from those of us who actually understand the system, what’s wrong with it, and how it might be fixed, Judge Garland appears uninterested in engaging in the dialogue or making the obvious personnel moves necessary to build a functioning, due-process-oriented, expert court system. So right now, the chances of avoiding further disaster look pretty grim.
Wonder what the Judge’s“emergency plans” are for when the tsunami finally hits 10th & PA, NW, in D.C.? Like most past AGs not named Jeff “Gonzo Apocalypto” Sessions, Garland might trivialize the importance of immigration and EOIR in his own mind. Maybe that’s because so few immigration cases came before the D.C. Circuit, and the ones that did involved regulations, statutes, and policy issues, usually not “individual removal cases” where human lives were at stake in an immediate context.
Perhaps it’s because EOIR is “across the river” in Falls Church, out of sight, out of mind. Maybe it’s because the unending damage that a dysfunctional and unfair EOIR inflicts on men, women, children, and their lawyers, happens across the U.S., out the Judge’s presence or consciousness. Occasionally, the Post and other national media pick it up. But the human trauma, cruelty, unfairness, and real life stories of EOIR’s disreputable conduct go largely untold and unnoticed. Even the victims and their loved ones are often too deep in the throes of these officially-sanctioned and unnecessarily-harsh injustices to worry about complaining or seeking redress.
I can, however, predict to Judge Garland that if he continues on his current tone-deaf, inept course, both his tenure as Attorney General and his legacy will forever be identified with lousy, inhumane, dysfunctional immigration policies and his inexcusable failure to fix EOIR, or even make a good faith attempt at it!
“Because the IJ and the BIA failed to provide reasoned consideration of Martinez’s evidence of his well-founded fear of future persecution based on a pattern or practice of persecution toward dissident journalists in Cuba, we grant in part his petition, vacate the BIA’s decision in part, and remand this case for further proceedings.”
And, here’s a little more insight from Michelle Mendez @ CLINIC on how the NDPA is making a difference in people’s lives, even as our public officials of both parties try to sweep the lawless and unprofessional behavior of our dysfunctional Immigration Courts under the carpet.
Michelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network, Inc. (“CLINIC”)
Greetings,
Thanks, Dan, for circulating this decision! This is actually a CLINIC BIA Pro Bono Project case represented by Derek Stikeleather of Goodell, DeVries, Leech & Dann, LLP. In this published decision, the Eleventh Circuit held that the BIA failed to give reasoned consideration to a Cuban asylum seeker’s claims that he had a well-founded fear of future persecution. The court noted that the IJ and BIA ignored evidence that the petitioner was persecuted for being a political journalist. Congratulations to Derek Stikeleather and thank you to our BIA Pro Bono Project Attorney Rachel Naggar for guiding and mentoring Derek on this case!
As Judge Martin, concurring and dissenting, cogently explains, the BIA actually got everything wrong in this case.
Mr. Martinez has made the case that he suffered two years of threats and abuse at the hands of the Cuban government because he is a journalist for a dissident magazine (Convivencia) that is critical of the government. Although the immigration officials who heard Mr. Martinez’s account found him to be credible, they gave him no relief. The Board of Immigration Appeals (BIA) said Mr. Martinez must be returned to Cuba because the story he truthfully told did not sufficiently show either that he had been persecuted in the past, or that he had a well-founded fear of being persecuted in Cuba in the future.
Now the majority opinion gives Mr. Martinez relief on one of the grounds rejected by the immigration authorities, but not the other. Maj. Op. at 2. The majority says the BIA failed to give reasoned consideration to Mr. Martinez’s claim that he has a well-founded fear of future persecution. See id. at 16–20. I agree and join in that part of the opinion. However, I would give Mr. Martinez broader relief because I think Martinez’s experiences as he tried to live and work in Cuba show that he suffered past persecution as well. I therefore respectfully dissent.
The dissent highlights the real ongoing problem here: A system with unqualified judges, particularly the BIA’s Appellate Judges, searching for specious reasons to deny compelling, well-documented asylum claims!
EOIR is NOT dispensing expert adjudication that complies with the due process clause of our Constitution! Not by a long shot, as any real expert in immigration and human rights laws would tell you!
Yet, the farce and perversion of justice goes on, day after day, case after case @ EOIR. Only by “Dred Scottification” — viewing asylum applicants and migrants, mostly people of color,as something other than “persons” entitled to fair and respectful treatment under the law, can we explain failures such as this!
So far, Judge Garland has neither recognized the fundamental problems in his courts nor shown any serious interest in providing justice for asylum seekers and other migrants. Heck, the only “refugees” Garland is protecting are Stephen Miller’s “burrowed in cronies” @ EOIR, including the Sessions/Barr “Asylum Denial Society” hiding out in the ranks of “Appellate Judges” at the BIA! Disgusting, but true!
Garland’s failure to take an interest in due process for migrants has come to the attention of some of the folks @ EOIR who actually believe in due process, fundamental fairness, and human decency. There is a growing sense of outrage and betrayal as they watch neo-Nazis and incompetent, biased restrictionists continue to draw fat salaries and abuse migrants courtesy of “Team Garland,” while asylum seekers continue to suffer and their attorneys are treated like dirt by EOIR! The folks who should have been put in charge of aggressively reforming and rebuilding this disgrace to American justice are still on the outside looking in, while “Clowns 🤡and political hacks (incredibly, holdovers from the “Trump regime”) rule!”
“‘Pattern or practice of persecution?’ ‘Benefit of the doubt for credible asylum seekers?’ Never heard of ‘em. And, fortunately, I don’t think Judge Garland has either! ‘Any reason to deny and deport,’ that’s the ‘BIA vision’ that Little Stevie Miller, Jeffy Gonzo, and Billy Bigot told us to follow! We’re ‘above the law” here at EOIR!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Garland’s ancestors were fortunate. Today’s refugees and asylees, not so much. But, hey, no need to “pay It forward” once “you’ve got yours” and your life is no longer subject to the institutionalized bias, racism, and grotesque inconsistencies of America’s immigrant “justice” system.
There is hope here! Through the continuing outstanding efforts of folks like Derek, Michelle, CAIR, and the rest of the NDPA, we can eventually grind Garland’s Deadly Clown Courts 🤡to a halt! No matter how much you “turn up the dial” or expand these dysfunctional and fundamentally unfair courts to railroad folks out, every reversal, remand, and injunction that the NDPA gets will further clog the 1.3 million case pipeline while saving individual lives in the process and setting favorable precedents that can be used to combat the current assault on justice and mistreatment of people of color and women by DOJ and EOIR.
Additionally, if the pace keeps up, Circuit Courts, even the most conservative ones, like the 5th and 11th Circuits, might tire of serving as a substitute BIA. There won’t be much else on their dockets.
Maybe they will finally take a serious look at the clear unconstitutionality of the system. That will throw a monkey wrench unto Garland’s apparent plans to pretend like institutionalized racism, unprofessionalism, bias, and gross unfairness aren’t operating under his auspices. Ideally, at some point he will decide that it’s easier to fix the mess than to try to pretend that it’s not happening.
Also, if Garland chooses to go with the same gang of DOJ attorneys who got beaten up in court on a fairly regular basis by the NDPA, the NDPA is likely to continue to feast. That’s particularly true because Garland shows every sign of stubborn determination to keep “the best due process lawyers in America” off his team, and therefore dedicated to opposing his attempt to run the Immigrtion Courts as if “elections don’t matter.”
Sure doesn’t sound like a winning strategy to me. But, hey, what do I know? I’ve only been practicing law for about the past 50 years.
At any rate, it’s important for the NDPA to adjust from the short-term mindset that things might be better under the Biden Administration and ramp the litigation, public critique/exposure, immigrant assistance, and “resistance to evil” machines into even higher gear.
Vulnerable human lives and the future of our democracy are at stake. The Biden Administration to date has demonstrated neither capacity nor interest in addressing the real, festering problems in American justice in a constructive manner.
That’s highly unfortunate. As little as they wish to recognize it, the Administration’s racial justice efforts will go nowhere as long as Garland continues to operate a “court system”where institutionalized racism, intentional perversion of the law, and degradation of humanity are the operating principles. Certainly enlightened, competent leadership on Immigration Court reform is conspicuously absent!
Sometimes, the only way to get attention from the tone-deaf folks in charge is to break their entire corrupt system by using the tools still available under the law strategically and effectively to end scofflaw behavior and force constructive, long, long, long overdue change.
Another EOIR “Town Hall” In The Offing? PHOTO: Thomas Hawk Creative Commons
Alas, the crack “I-Team” from “Courtside on Your Side” was unable to attend. But a long time EOIR veteran provided this helpful analysis:
[A]fter the debacle EOIR called a Town Hall yesterday I am very afraid for EOIR’s future.
Now, as some readers might remember, I previously had set perilously low expectations for this latest escapade in “Mindless Micromanagement From On High.”
But, my sources inform me that EOIR substantially underperformed even those rock bottom levels!
So much for the idea that a “real judge” might be able to bring “real justice” to the Halls of Injustice! Hope springs eternal, ever to be ruthlessly dashed by the tone-deaf politicos @ DOJ and the incompetent bureaucrats @ Falls Church!
Here’s a “Pop Quiz.”
How many senior executives and BIA Appellate Judges have ever represented an asylum seeker in Immigration Court?
How many senior executives at EOIR have set foot in an Immigration Courtroom in the past year?
How many DOJ politicos and EOIR senior managers have ever conducted a full Master Calendar hearing?
Can you name a U.S. Court System that has successfully eliminated a 1.3 million case backlog through “Aimless Docket Reshuffling” conducted by non-judicial officials far removed from the trial courts?
David Wetmore, the current Chair & Chief Appellate Judge of the BIA, owes allegiance to which of the following:
a) Stephen Miller
b) Donald Trump
c) Joe Biden
d) Merrick B. Garland
e) Beelzebub
BONUS QUESTION:
6) From the late Casey Stengel: Can’t anyone here play this game?
“Casey Stengel might understand Judge Garland’s game plan. The rest of us not so much.” PHOTO: Rudi Reit Creative Commons
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19 & Closures
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
EOIR Status Overview & EOIR Court Status Map/List: Unless previously specified on the court status list, hearings in non-detained cases at courts are postponed through, and including, May 14, 2021. (It is unclear when the next announcement will be. EOIR announced 5/14 on 3/29, 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28.) There is no announced date for reopening NYC non-detained at this time.
NPR: The plan the Biden administration is considering to speed up the process would take some asylum cases from the southern border out of the hands of the overloaded immigration courts under the Department of Justice. Instead, it would handle them under the purview of the Department of Homeland Security, where asylum officers already process tens of thousands of cases a year, two people familiar with the discussions who were not authorized to speak about administration plans told NPR exclusively.
WaPo: A new poll by The Associated Press-NORC Center for Public Affairs Research also shows that solving the problem of young people at the border is among Americans’ highest immigration priorities: 59% say providing safe treatment of unaccompanied children when they are apprehended should be a high priority, and 65% say the same about reuniting families separated at the border.
Intercept: LexisNexis signed a $16.8 million contract to sell information to U.S. Immigration and Customs Enforcement, according to documents shared with The Intercept. The deal is already drawing fire from critics and comes less than two years after the company downplayed its ties to ICE, claiming it was “not working with them to build data infrastructure to assist their efforts.”
Vox: President Joe Biden is reportedly not seeking to renew the ban, which expired Wednesday after Trump extended it in December, citing concerns that foreign workers could threaten employment opportunities for Americans who were laid off as a result of the Covid-19 pandemic.
BuzzFeed: United States Citizenship and Immigration Services officials are planning to remove references to immigrants as “aliens” in the agency’s policy manual more than a year after the term was inserted into the guidance during the Trump administration, according to government documents obtained by BuzzFeed News.
DocumentedNY: A measure currently planned for New York’s next budget would provide more than $2 billion in cash assistance for New Yorkers who have been ineligible for federal relief payments during the pandemic, including many farm workers, service employees, street vendors, and undocumented laborers who often earn cash wages in the informal economy. But state lawmakers and workers rights advocates say Governor Andrew Cuomo is pushing for a two-tiered system of access to the Excluded Worker Fund that would distribute benefits based on burdensome proof-of-employment requirements.
EOIR issued a policy memo (PM 21-18) implementing a revised case flow processing model for certain non-detained cases with representation in immigration courts. EOIR concurrently cancelled PM 21-05. The memo is effective April 2, 2021. AILA Doc. No. 21040237. See also EOIR Cancels Policy Memo 21-05 on Enhanced Case Flow Processing.
Following Matter of Lopez-Meza, the BIA ruled that the offense of aggravated unlicensed operation of a motor vehicle in the first degree in violation of §511(3)(a)(i) of the New York Vehicle and Traffic Law is categorically a CIMT. Matter of Vucetic, 28 I&N Dec. 276 (BIA 2021) AILA Doc. No. 21033133
BIA ruled that the “offense clause” of the federal conspiracy statute, 18 USC §371, is divisible and the underlying substantive crime – selling counterfeit currency in violation of 18 USC §473 in this instance – is an element of the offense. Matter of Al Sabsabi, 28 I&N Dec. 269 (BIA 2021) AILA Doc. No. 21032934
The court held that the BIA did not abuse its discretion in concluding that the petitioner had failed to rebut the presumption of delivery of the briefing schedule, transcript, and IJ’s written decision, finding that his counsel’s declarations were insufficient. (Njilefac v. Garland, 3/24/21) AILA Doc. No. 21033036
The court held that substantial evidence supported the BIA’s determination that the petitioner—a 22-year-old Christian woman who claimed she had been targeted by gangs in El Salvador—could relocate to another part of El Salvador if forced to return. (Guatemala-Pineda v. Garland, 3/26/21) AILA Doc. No. 21033038
The court held that the BIA and IJ erred in misunderstanding the petitioner’s proposed social group comprised of “El Salvadoran men with intellectual disabilities who exhibit erratic behavior” for purposes of asylum and withholding relief. (Acevedo Granados v. Garland, 3/24/21) AILA Doc. No. 21033039
Law360: New Jersey judges may not order a pre-trial detention for unauthorized immigrants who are charged with crimes in order to prevent federal authorities from deporting them, according to a ruling from the state’s highest court.
A California federal court sanctioned the U.S. Department of Homeland Security and the U.S. Customs and Border Protection, adopting a magistrate judge’s report calling out “negligent destruction” of evidence amid litigation that asylum-seekers were turned away at the Southern border.
USCIS confirmed that it will no longer reject Form I-589, Form I-612, or Form I-918 if an applicant leaves a blank space. USCIS stated that it has reverted to the form rejection criteria it applied before October 2019 regarding blank responses for all forms. AILA Doc. No. 21040135
DOS updates its announcement and FAQs on the phased resumption of visa services following the expiration of Presidential Proclamation 10052, which suspended the entry of certain nonimmigrant visa applicants into the United States. AILA Doc. No. 20071435
ICE announced that it has extended the flexibilities in rules related to Form I-9 compliance during the COVID-19 pandemic until May 31, 2021. The extension includes guidance for employees hired on or after April 1, 2021, and work exclusively in a remote setting due to COVID-19-related precautions. AILA Doc. No. 20032033
Better late than never! Liz & I were pretty busy this week!
OK, so here’s why Liz and I are “a team” for the NDPA!
Liz went first on our HNBA Panel on Wednesday night! She described the problems in Immigration Court as being “kinda too dry and highly technical for most people to get excited about.”
There it was, nice and soft, lingering just above the net, inviting my “monster spike!” 🏐 I let loose with my most colorful, down-to-earth, “tell it like it is in plain language” — no section numbers — broadside about the due process crisis in our “Clown Courts”🤡 and how it not only brings down our entire justice system, but also poses a real, existential threat to America’s Hispanic communities that they can only ignore at their peril! Death on your doorstep! ☠️⚰️ That shouldn’t be too dry or technical for the masses to understand!
Having an unqualified, highly-non diverse, restrictionist tilting, out of control judiciary “Dred Scottfying” 🤮 individuals of color, particularly Hispanic women and children, on a daily basis and getting away with it is no laughing matter!
Also, as I stated, if talented Hispanic lawyers want to stop being beaten up in Immigration Court and to finally gain “entree” into a now highly non-diverse, uneducated, often clueless Article III Judiciary that frequently diminishes their professional achievements while dehumanizing and abusing their clients, then “Houston, we’ve got a problem!”
Judge Merrick Garland, who controls all U.S. Immigration Court appointments, appears determined to follow in the footsteps of his Dem predecessors by:
failing to meaningfully reform the existing dysfunctional, non-diverse, non-expert Immigration Judiciary (nearly 600 stong, making it the largest “entry level opportunity” in “Federal Judging”) by getting rid of the “deadwood” and re-competing these “life or death” jobs with merit-based selection criteria that honor immigration and human rights expertise, require demonstrated commitment to due process above all else, recognize the crucial experience gained by representing humans in Immigration Court, and have a selection process involving acknowledged private sector immigration experts (not just Government bureaucrats, many of whom have neither represented an individual in Immigration Court nor heard an asylum case in a judicial capacity);
failing to actively, aggressively, and nationally publicize, hype, and recruit for these judicial jobs in under-represented communities of minority lawyers (basically, systematically excluded from the Immigration Judiciary in the past) using available minority legal “role models” to drum up interest and “sell” the jobs to those who haven’t applied in the past (perhaps because of EOIR’s recent reputation for hostility toward individuals of color and disdain for human rights and due process, as well as their reputation for sloppy judicial work product) — to state the obvious, simply posting bureaucratic descriptions on “USA Jobs” is a joke — designed to repeat the “insiders only” non-diverse, non-expert composition of the current Immigration Courts; and
intentionally ignoring (it ain’t rocket science) the incredible potential of an independent, diverse, highly qualified, “model” Immigration Judiciary as a transition to a long overdue Article I Immigration Court and a “stepping stone” for a more diverse, progressive, immigration-human rights-due process oriented (as actually applied in communities of color throughout America) Article III Judiciary, which is also reeling right now, largely as a result of its lack of diversity, skewed legal knowledge, and lack of sensitivity and commitment to equal justice for all in America.
Folks, Judge Garland and his team at DOJ have made it clear by their lack of constructive actions, ongoing failure to denounce and take action against the inferior work product coming out of the Immigration Courts (that actually puts the lives of minority individuals in jeopardy), unwillingness to meaningfully engage with the immigration and human rights community, and ridiculous failure to enlist experts from the NDPA on their “A-Team” to clean-up the unmitigated disaster at EOIR: This is not going to happen without a fight! A “knock-down, drag ‘em out fight!”
Immigration and human rights advocates are dealing with the daily bias, lousy judging, inane precedents, and health-threating conditions in the muck-hole known as “Immigration Court!” Meanwhile, buddies of neo-Nazi restrictionists Stephen MIller and Gene Hamilton are still drawing fat paychecks in senior positions at EOIR where they can continue to tramp on the legal rights of you and your clients and to further screw up the already totally dysfunctional Immigration Courts. Studies, bogus “Town Meetings,” focus groups, and a few cosmetic bureaucratic changes that don’t scratch the surface aren’t going to hack it! Never have, never will! Even I know that!
If that doesn’t make sense to you, then it’s time to take aggressive concerted action to stop Judge Garland from continuing to run American justice into the ground — over your bodies and your clients’ legal and human rights!
“Eyore In Distress” “If this isn’t YOUR vision of immigrants’ rights and equal justice in America, then YOU need to let Judge Garland know! Demand better! Demand due process! Demand expertise! Demand respect for human dignity! Demand an end to the DOJ’s decades-long mismanagement of, and improper interference with, the fair functioning of our Immigration Courts! Demand courts that “guarantee fairness and due process for all,” the original EOIR vision! Set poor Eyore free!”
🇺🇸⚖️🗽Due Process Forever! Put an end to deadly ☠️ “Clown Courts!”🤡 Demand “Equal Justice for All!” It’s a right, not an option!
Wendy Young President, Kids In Need of Defense (“KIND”)Professor Stephen Yale-Loehr Cornell Law
Protecting unaccompanied children at the US-Mexico border
Cornell Law School and the Cornell Migrations Initiative invite you to an upcoming virtual talk with Wendy Young, president of Kids in Need of Defense, on Tuesday April 13.Details and registration info below.
Tuesday April 13, 12:15-1:15 pm ET
Wendy Young, President of KIND (Kids In Need of Defense)
A Fresh Focus on the US-Mexico Border: Protection of Unaccompanied Children Grounded in Systemic Reforms
Wendy will discuss recent developments on the U.S.-Mexico border and the need to reform our broken asylum system, especially for unaccompanied children.
I’m going to ask the obvious question: Why is Wendy Young, probably America’s leading expert on the rights and treatment of migrant children, giving speeches rather than helping Vice President Harris lead the Biden Administration’s response from the “inside” and being the face of the Administration’s public profile?
Sports fans, it’s very simple: You can’t win the game with your superstars 🌟 on the bench, or not even on your team!The stunning failure of the Biden Administration to tap the available, recognized experts from the NDPA to re-establish due process, the rule of law, common sense, and humanity in our human rights, immigration, and civil rights policies is both mind-boggling and infuriating!
It’s “designed for failure,” an all too familiar scenario when Dems take on immigration, human rights, and children’s rights. And, not surprisingly, that’s what’s happening so far, particularly in the dysfunctional Immigration Courts, which could be leading the way toward a functional asylum system, and real due process for migrant women and children, but instead continue their “due process death spiral” ☠️⚰️ under Judge Garland!
Let’s hope that Wendy & Steve can find some “light at the end of the (seemingly endless) tunnel” for us!
One thing even I know: We won’t be able to mindlessly enforce, imprison, deny, abuse, prosecute, kill, lie, deter, or deport our way to an equilibrium! But, as in the past, that doesn’t mean we won’t spend time, money, and human lives recycling all of these past “enforcement only” failures!
More forced migrants will enter the United States! That’s what forced migrants do, until we deal rationally and constructively with the conditions that force them to migrate! The fact that we haven’t been able to do so for the past half-century suggests to me the some different thinking and approaches from some “new faces,” not previously seen in government, is required.
That’s not to say that solving the problem doesn’t involve the private sector. I suspect it does, at least in some significant way. Why not ask folks like Bill & Melinda Gates, McKenzie Scott (formerly Bezos), Warren Buffett, Charles Koch, Diane Hendrickson, Michael Jordan, Kareem Abdul-Jabbar, and Jose Andres — a philosophically and politically diverse group of highly successful individuals and thinkers to be sure — how they might go about investing in and releasing the positive power of human migration, educating the world’s younger generation for success, addressing racism, and creating viable, mutually beneficial economic opportunities outside our borders while protecting the environment? A tall order to be sure! But, these are all folks with records of thinking and acting creatively to solve problems, overcome challenges, create jobs and opportunities, and succeed at the highest levels.
Our choice as a nation is whether to comply with our Constitution, the Refugee Act of 1980, and our international obligations by setting up a fair, generous, and efficient legal system to screen forced migrants and decide who is entitled to legal protection and admission; or do we continue to ignore the laws and human decency by turning the system over to smugglers and cartels to run as part of a profitable and exploitative extralegal migration apparatus feeding into an exploitable underground population. The latter was the Trump Administration’s approach and the one touted by White Nationalist restrictionists, mostly in the GOP. However, even a few Dems seem pretty happy with it.
The GOP is heartless, lawless, and morally degraded. The Dems are clueless and leaderless on immigration and human rights. Neither side pays attention to experts with the skills necessary to rebuild immigration and honor human rights obligations. That’s a dangerous combination. And, it’s the reason why children are needlessly suffering, and will continue to do so, “on our watch” — until we harness the knowledge and skills of those actually capable of making things better!
And, for sure, thousands of desperate, often terrified, tired, hungry kids are no threat whatsoever to our “national security.” Those threats, entirely from home-grown right wing thugs, materialized on January 6 and are now embodied and fanned by the “insurrectionist wing” of the GOP. No wonder hacks like Ted Cruz, Josh Hawley, and Tom Cotton want to focus attention elsewhere and pick on defenseless brown-skinned children!
“Who needs a fair, functioning, asylum system at legal ports of entry? The GOP has the ‘final solution’ for families fleeing for their lives.” PHOTO: Julia Le Duc/Associated Press
“Oh no! Is Judge Garland really going to leave me in this position for the next four years?”
COURTSIDE EXCLUSIVE! — A FIRST, DISTURBING LOOK INSIDE “JUDGE GARLAND’S FAILED EOIR” –SOURCES CLAIM JUDGE’S APPROACH TO DUE PROCESS @ EOIR TIMID, INEFFECTIVE 🤮☠️ — HEARD IT THROUGH THE GRAPEVINE 🍇 – Judge Apparently Dissing Calls By Experts, Advocates For Bold, Common Sense Actions To Restore Due Process, & Promote Judicial Independence @ EOIR — Appears Ready To Allow Miller‘s White Nationalist “Plants,” Go Along To Get Along Judges, To Continue Mocking Due Process @ Dysfunctional Courts – Will Ex-Federal Judge Become Latest In Line Of Failed Dem AGs To Allow Institutionalized Racism, Misogyny, Anti-Asylum Attitudes, Mistreatment Of Migrants, & Administrative Chaos To Flourish In America’s Worst “Courts?”
By Paul Wickham Schmidt
Courtside Exclusive
April 9, 2021
Although the information is unverified, and the sources anonymous, Courtside has pieced together an emerging disturbing picture of Judge Garland’s “master plan” to make only cosmetic changes and allow the continued mistreatment of asylum seekers and unprofessional performance of many so-called “judges” in his Immigration Courts, generally known as America’s worst and most dysfunctional tribunals where life threatening institutionalized White Nationalism, sloppy work product, and lack of human rights expertise have become the order of the day.
As we know, DOJ quickly reassigned the former EOIR Director, James McHenry, notorious for “leading” the courts into total failure in pursuit of a White Nationalist political agenda. Apparently, the head of Administration and the “IT honcho” were also forced out at “The Tower.” Presumably, this has to do with EOIR’s remarkable two-decade failure to implement anything approaching a functional nationwide e-filing system.
That’s the “good news.” But, reportedly Judge Garland has little intention of removing the BIA Chairman or the Deputy Director. Sources say that unqualified (never served as a judge) Chief Immigration Judge Tracy Short, who was sent over from DHS Enforcement by the Trump folks, could be on thin ice. But, some in the know point out that he has the least authority to influence anything because he doesn’t actually adjudicate cases and must get approval from “on high” for any further policy changes.
The Deputy Director, Carl C. Risch, whom I’ve reported on before, was a Trump political appointee who “burrowed in” right at the end. According to sources Risch, a “bureaucratic refugee” from the State Department (the only kind of “refugee” recognized by the Trump regime) was mostly interested in finding a “soft landing on the public dole,” and not many people have paid attention to him.
The BIA Chair, David Wetmore, was a confidante of neo-Nazi White Nationalist Stephen Miller at the White House before he became an advisor to the Deputy A.G. and then the Chair. Reportedly, his appointment was driven by Miller and other senior Trump people.
Potentially, in a competent system, the BIA Chair (Chief Appellate Judge) would be one of the most powerful and influential Federal Judges in America, short of the Supremes. Wetmore has supposedly politicized everything. Some say that with his “probationary period” expiring next month, he’s just trying to “hang on.”
DOJ leadership, therefore, could and certainly should remove him in his probationary period with no repercussions. However, Dem incompetence at EOIR and elsewhere in DOJ is legendary when it comes to making such bold personnel moves that, by contrast, are the “bread and butter” of the process by which GOP Administrations seize control of the bureaucracy for their political aims. Dem Administrations all to often appear more than happy to leave GOP “plants, burrowers, and holdovers” in key positions while leaving human rights experts and their own supporters “out in the cold.”
There are also rumors that DOJ has prepared a “100-page plan” for EOIR. That, in of itself, is both interesting and disturbing in light of the glaring absence of any known immigration/human rights expert with intimate knowledge of the dysfunction at the Immigration Courts and how to fix it at DOJ Headquarters downtown. As I’ve mentioned before, the few “DOJ insiders” qualified to lead such a project are some field Immigration Judges, most associated with the NAIJ.
Reportedly, “the plan” has some “good stuff” including free counsel for unaccompanied children. But it doesn’t call for what’s really needed — independent courts!
Nor is it apparent that the Garland team intends to treat the Immigration Courts as “real courts” and to appoint the qualified, diverse, expert judiciary necessary to end institutionalized racism and “Dred Scottification” in the American justice system.
This is likely to leave many of those talented and dedicated lawyers who led the defense against the degradation and dehumanization of women and people of color in the Immigration Courts over the past four years fuming! I’ve said it before, it’s a strange way for a supposedly progressive Administration to treat those who should be their staunchest allies with the potential to solve problems others can’t!
Judge Garland appears determined to repeat the deadly mistakes of past Dem Administrations by leaving the best, most powerful, and most achievable opportunity for reforming the Federal Judiciary on the table yet again. He will also neuter and discredit his plans for equal justice and racial justice before even getting them out of the box.
Some report that advocacy groups might temper their calls for judicial independence and a better qualified judiciary at EOIR to avoid criticizing the new Administration. Sadly, that would also be a huge mistake, repeating past catastrophic failures!
I’ve seldom heard or witnessed a bigger “crock” than “revolution by evolution.” Revolution comes from kicking tail, taking names, and bold aggressive due process enhancing actions. For Pete’s sake, Miller and Sessions understood the power of decisive action! Are they really that much smarter and more motivated than the Dems? Sadly, it appears so!
Last time, I watched from the “inside” as the Obama Administration left the immigration advocacy/human rights community “standing at the station” while the train pulled out, with mostly the wrong engineers at the controls. It was painful. It might be even more painful watching it happen again, despite all the warnings from those of us in the NDPA!
If an independent EOIR is ever going to happen it must be now! By the end of this year, it likely will be too late. The cost in human lives, frustration, and squandered potential for a better America and a better world will be incalculable.
Unhappily, those of us who had hoped to litigate and criticize less and help more appear destined for another four years of fighting an intransigent and tone-deaf Administration from the outside.
My three recommendations:
1) Those working on Article I better “get cracking,” because Judge Garland doesn’t appear to be interested in meaningful fixes at EOIR.
2) The human rights community had better reload and redeploy the “litigation artillery.” Because it looks to me like the only way of getting the Garland DOJ to address the festering problems undermining justice in America will be by beating them in court, over and over, until their “star chambers” finally collapse in total chaos.
3) Keep documenting the “lack of justice at Justice” — make sure that Judge Garland and his team “own” their failure to take seriously immigrant justice in the Immigration Courts and their disrespect for human rights experts who should be running and staffing our Immigration Courts!
Sure, it’s all anonymous and unverifiable. But, it sounds eerily similar to the arrogant incompetence with which the Obama Administration failed to institute achievable reforms in the Immigration Court system. So, I give it credence.
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever!
“Oh, goody! I hear Judge Garland is going to keep me at EOIR! I can’t wait to tell my buddy Gauleiter Miller that the slaughter of innocents will continue!” Image: Hernan Fednan, Creative Commons License
