"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.
A federal appellate court Thursday temporarily granted the Biden administration’s request to continue the use of a public health order to quickly expel migrants with children who are stopped along the U.S. border.
A lower court had given the Biden administration until Thursday to limit use of the law, while immigrant and legal advocates proceeded with a lawsuit against it. The Trump administration had invoked the 1944 health statute, known as Title 42, to close the border to prevent people from entering the country, citing concerns about the spread of the coronavirus.
The case, brought in the District of Columbia by the American Civil Liberties Union and other groups, focuses on families with children, meaning the administration can continue to expel single adults under the provision.
U.S. District Judge Emmet Sullivan found earlier this month that advocates were likely to succeed with their case. In a 58-page ruling, he wrote that migrant families subjected to Title 42 “face real threats of violence and persecution” and are deprived of statutory rights to seek protection in the U.S.
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Read Andrea’s complete article at the link!
More unfair and unjustified returns of refugees to death and despair courtesy of an Administration that doesn’t care and Federal Judges unwilling to do their jobs! The dead can’t speak. But, history will judge all those involved in this disgraceful episode!
Imagine: You are living in the United States without documentation. Years ago, you were in danger of deportation but were allowed to stay by the federal government through prosecutorial discretion. Suddenly, you are caught in a surprise mass raid of your community by Immigration and Customs Enforcement. Your family and lawyer bring your case to the Department of Justice’s Board of Immigration Appeals, petitioning board members to recognize that you should be allowed to stay in the U.S. But in as little as 24 hours, ICE has already deported you back to a country where you have not been in years, where you may have no family or friends, where you may even be in danger from the local government or paramilitary forces. The BIA has yet to make a decision about your case—or, perhaps worse, the board has decided that you should not have been deported in the first place. How do you return to your family and your home in the U.S. now?
It is scenarios like this—which affect a portion of the 256,085 peopledeported each year—that a new lawsuit filed against the BIA hopes to avert by bringing transparency to the procedures, timelines, and other aspects of the board’s inner workings. The American Immigration Council, a non-profit that protects immigrants’ rights, and the Kathryn O. Greenberg Immigration Justice Clinic, which represents indigent immigrants facing deportation, brought the suit after the BIA failed to respond to Freedom of Information Act requests about their process for granting stays of removal. Such stays allow non-citizens to avoid deportation before their cases are heard by immigration courts.
Pacific Standard recently interviewed representatives from both the American Immigration Council and Kathryn O. Greenberg Immigration Justice Clinic—Claudia Valenzuela and Rikke Bukh, respectively—about the motivation behind their suit against the BIA, its aims, and its importance.
Was there a specific incident or general trend that inspired you to file suit against the BIA?
Valenzuela: Both the Council and the Clinic have heard via reports, and experienced via clients, that individuals facing speedy deportation were not getting their motions for a stay of removal decided in time to avoid their physical removal. As we outlined in our complaint to the federal district court, this scenario is quite problematic as it is extremely difficult for individuals to fight their immigration cases once deported.
The stay of removal mechanism was intended to serve as a critical, potentially life-saving safeguard, and it should protect many of these people. However, the BIA’s deficient practices surrounding stays have made it ineffective, and the devastating consequences have emerged particularly sharply in the wake of these enforcement actions.
What specific information are you hoping to get out of the BIA?
Valenzuela: We are looking for all policies and procedures regarding stays of deportation filed in conjunction with motions to reopen or reconsider—and in particular how these requests are processed and tracked, timelines for deciding these requests, and how decisions on stays of deportation are communicated to individuals who request them and/or their attorneys. We also requested statistical data on the numbers of stays requested in conjunction with motions to reopen or reconsider, and rates of grants or denials in deciding those motions.
Bukh: We are seeking information that would give us insight into how the BIA makes these decisions, including guidance on adjudicating stay motions and other internal materials, as well as data to show how they make these types of decisions and the impact of current procedures and standards. It is necessary to make this information public so that courts, attorneys, and, most importantly, individuals who do not have representation can meaningfully access and utilize these mechanisms to prevent unlawful deportations.
On what grounds is the BIA refusing to share the information you’re requesting?
Valenzuela: The board claims that its information is protected on law-enforcement and national-security grounds. However, it is our position that the BIA has incorrectly invoked these exemptions.
Bukh: The agency has failed to respond in any substance regarding a significant category of information that we requested. It has also said that it does not track “non-emergency” requests for stays in its system and refused to locate such information in its files because, in its view, it would be “burdensome.”
How do you anticipate the case will proceed? If the BIA prevails, what then?
Bukh: We hope and expect that the court will see the important need for this information and require the agency to produce it expeditiously. However, the agency may recognize that its responses have been deficient and begin producing these records even before a court order. The important thing is that the public has access to this information. If the BIA were to prevail, we would review the basis for a decision and consider next steps from there.
Valenzuela: We are hopeful that the court will agree that the records we have requested are subject to public disclosure and order the BIA to release all records and statistics. Our requests address precisely the type of information that the BIA should make available to the public because it governs procedural due process for individuals in the most dire of circumstances: imminent deportation.
This interview has been edited for length and clarity.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
FILED
FEB 04 2017
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
STATE OF WASHINGTON; STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States; et al.,
Defendants-Appellants.
No. 17-35105
D.C. No. 2:17-cv-00141 Western District of Washington, Seattle
ORDER
Before: CANBY and FRIEDLAND, Circuit Judges.
The court has received appellants’ emergency motion (Docket Entry
No. 14). Appellants’ request for an immediate administrative stay pending full consideration of the emergency motion for a stay pending appeal is denied.
Appellees’ opposition to the emergency motion is due Sunday, February 5, 2017 at 11:59 p.m. PST. Appellants’ reply in support of the emergency motion is due Monday, February 6, 2017 at 3:00 p.m. PST.
MOATT
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Here’s what it means. The Government has appealed o the 9th Circuit Court of Appeals from Judge Robart’s TRO suspending enforcement of the Executive Order on visas and refugees. The Government requested an “immediate emergency stay” of the Judge’s TRO pending appeal. The 9th Circuit rejected the Government’s request for an “immediate” emergency stay (probably because it would have been “ex parte,” that is, without giving the other side a chance to respond).
However the 9th Circuit did order the State of Washington (and other parties opposing the stay) to file a response by noon today (Super Bowl Sunday), and also ordered the Government to respond to that filing by 3:00 PM tomorrow (Monday).
The 9th Circuit’s denial of the “immediate” emergency stay is not a “ruling on the merits” of the appeal or even the request for emergency stay. It just means that the 9th Circuit wanted additional information from both parties before deciding whether or not to grant the emergency stay pending appeal.
The Government’s request for emergency stay thus remains “alive” and could be granted (or denied) after the 9th Circuit has had a chance to review the legal arguments on both sides.
The reporting on this so far has been pretty confusing. Hope this helps straighten things out.
