EOIR – Page 89 – immigrationcourtside.com

AS THOSE CHARGED WITH PROTECTING JUSTICE “TOADY UP” & ENABLE TRUMP REGIME’S “CRIMES AGAINST HUMANITY,” ONE GROUP OF CIVIL SERVANTS HAS THE COURAGE TO STAND UP FOR DUE PROCESS, THE RIGHTS OF ASYLUM SEEKERS, & SIMPLE HUMAN DIGNITY: USCIS ASYLUM OFFICERS! BONUS+: My Latest Monday Essay: “Heroes & Enablers”

https://apple.news/AOKo5byofRfKem24qSuLsaA

Joe Jurado reports for The Root:

The immigration policies executed by the Trump administration have been, to be succinct, f***ed up. That’s not even just me saying that. The people who have to execute his policies are saying it too.

The New York Times reports that a union of federal asylum workers has filed an amicus brief stating that a policy from the Trump Administration that diverts migrants to Guatemala is unlawful. The union, National CIS Council 119, represents 700 asylum and refugee officers of the United States Citizenship and Immigration Services. The brief states that international treaty obligations are being violated as a result of having to deport migrants to a country where they will likely face prosecution. The Trump administration made a deal with Guatemala that allows the United States to deport migrants seeking asylum in the States to Guatemala. The union believes that these new rules are forcing them to violate the laws they were trained to uphold.

. . . .

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

Read the complete report at the link.

HEROES & ENABLERS — Judges Who Aid The Trump Regime’s Deadly Oppression Of The Most Vulnerable Among Us Will Eventually Hear The Voices Of Those They Abandoned & Dehumanized — Even From The Graves Of The Oppressed, History Will Pass Judgement On The Smugly Powerful Who Abuse The Weak!

By Paul Wickham Schmidt

Courtside Exclusive

March 9, 2020

USCIS Asylum Officers are the “NDPA Heroes of the Week!”

So, one group of courageous civil servants is willing to put their careers on the line to defend the Constitution and the rights of the vulnerable. But, others in more protected positions, like, for example, Supreme Court Justices and some Court of Appeals Judges, are afraid to stand up to Trump and defend the rule of law and the humanity of those whose only “crime” is to trust in our legal protection system. The courage of one group contrasts with the willful ignorance and cowardly complicity of the other. What’s wrong with this picture?

At some point, there will be “regime change” in the Executive as well as the Senate. When that happens, our system needs a complete re-examination of the immigration scholarship, commitment to human rights, and the moral leadership of those we are giving lifetime appointments to the Federal Bench, particularly the Supremes.

Obviously, the system has failed when two current justices choose to use their power and privileged positions disingenuously to rail about the “bogus horrors” of nationwide injunctions, and thereby spur the regime on to even grater abuses, while papering over the real issue of the actual grotesque legal, constitutional, and human rights violations inflicted on migrants and others by a White Nationalist would-be authoritarian regime that would eventually do away with almost all of our legal rights.

In the future, perhaps we should consider elevating more Asylum Officers with law degrees and a record of fair adjudication and speaking truth to power to the Article III Judiciary, including the Supremes. There are younger members of our Round Table of Former Immigration Judges who were forced by the regime into “early retirement” who could bring scholarship, fairness, practicality, and justice back to the Article IIIs. How about some pro bono lawyers, clinical professors, and NGO leaders who combine scholarship with real life experience and whose proven creativity and problem solving skills far exceed the pedestrian and wooden approaches we see all too often from today’s failing Article III Judiciary. Although their efforts are mocked, disrespected, and undermined by complicit Article III Judges, like the “J.R. Five,” these courageous “defenders of democracy and the rights of the weak” are the ones who are in fact keeping our legal system afloat in the face of Article III willful ignorance and complicity in tyranny.

And, we definitely need fewer corporate lawyers (except those who have extensive pro bono immigration/human rights experience), prosecutors, and right wing “think tankers” occupying the Federal bench.We have an oversupply of those folks on the bench right now, and our rights are suffering for it. It will take years, perhaps decades, to repair the damage they are causing and to bring the Federal Judicial system back into a proper balance.

These aren’t “liberal/conservative philosophical questions.” They are black and white questions of moral courage and the willingness to enforce Due Process and protect those whose lives are endangered by the Trump regime’s cruel and lawless programs and constant racially-inspired lies, naked bias, and misrepresentations. Sending folks back to dangerous countries without functioning asylum systems is wrong as a matter of law. Period. Making them “Remain in Mexico” is wrong. Period. A so-called “court system” run by a transparently biased, disingenuous, “uber enforcement” official like Billy Barr does not provide the “fair and impartial adjudications” required by Due Process. Period. Separating families and putting kids in cages and “kiddie gulags” is wrong. Period. Those initiating and carrying out those policies should be chastised and held accountable, not enabled. Period.

Actually, many courageous and scholarly U.S. District Judges have gotten these straightforward legal questions exactly right and promptly entered life-saving injunctions. A number of U.S. Immigration Judges have also courageously adhered to the rule of law in the face of excruciating and unethical pressure from DOJ politicos and their toadies to cut corners and railroad individuals out of the country without due process.

It’s the Supremes and too many Circuit Court Judges who who have “rolled over” for the regime’s cruel and inhuman nonsense. By doing so, they essentially “pull the rug” out from under those judges who have the encourage and integrity to “just say no” to the regime’s constant overreach. In doing so, the Federal Appellate Courts and the Supremes are actually engaging in undermining the system they serve and encouraging “worst practices” and even worse results. What truly reprehensible “role models” for upcoming lawyers. Fortunately, many newer lawyers are members of the New Due Process Army and are ignoring the poor and immoral examples of judicial spinelessness set by their supposed “elders.”

Life tenure protects the jobs and paychecks of Article III Judges. But, it won’t protect them from justified criticism and the ultimate judgement of history. Bashing the oppressed in behalf of those in power might seem like a good short-term strategy. After all, the deported, the abused, and the dead don’t normally get to “write history.”

But others are watching this travesty unfold and are pledged to “give a voice” to those silenced by the gross dereliction of legal duties and ignoring simple human decency and values by many with power who could have put an end to these obscene human rights abuses. Chief Justice Roger Taney might have been hailed by the White Supremacists of his age for his opinion in Dred Scott. But, he hasn’t “weathered the test of time” too well! Nor will Chief Justice Roberts and others who have been “going along to get along” with cruel and illegal abuses wantonly inflicted by the White Nationalist regime on the most needy and vulnerable among us.

Congrats and much appreciation from all of us in the New Due Process Army to USCIS Asylum Officers for your courage and integrity in the face of tyranny!

Due Process Forever; Complicity & Enabling Cruelty Never!

PWS

03-09-20

WASHPOST EDITORIAL CHANNELS COURTSIDE! — Calls Out “Wolfman” & Other Cowardly Trump Toadies Who Lie & Gloat About Abusing Vulnerable Asylum Seekers! – “In fact, the human suffering caused by Remain in Mexico, a policy Mr. Wolf has promoted, is what has truly been “grave and reckless,” and an insult to American traditions and values.”

https://www.washingtonpost.com/opinions/the-real-border-crisis-is-trumps-remain-in-mexico-policy/2020/03/06/02d6964c-5cd8-11ea-9055-5fa12981bbbf_story.html

By Editorial Board

March 7, 2020 at 7:00 a.m. EST

WITH CHARACTERISTIC bombast, the White House denounced a federal court ruling the other day that threatens the administration’s policy of shifting migrants across the border into Mexico while they await the outcome of their asylum claims. The ruling, said press secretary Stephanie Grisham, could “reignite the humanitarian and security crisis at the border.”Too late, Ms. Grisham. As a direct result of the administration’s policy, known as Remain in Mexico, a full-blown humanitarian and security crisis already has been raging at the border since last spring. But since the victims, violence and costs of that crisis happen to be just south of the border — sometimes nearly within view of it — U.S. officials have successfully averted their eyes. To the Trump administration, a crisis of its own making is out of sight and therefore must not exist.

Sadly, it does exist. Some 60,000 migrants, mainly from Central America, have been returned by U.S. officials to Mexico over the past year to await adjudication of their asylum claims. Many have given up. Those who remain, stranded in squalid shelters and tent camps along the frontier, are easy prey for Mexican crime cartels. More than 1,000 reported cases of kidnapping, rape torture and other violent crimes targeting migrants waiting in Mexico have been documented by Human Rights First, an advocacy group. Independent journalists have also confirmed such cases, often involving Mexican criminals who use the migrants as leverage for ransom demands aimed at their relatives at home or in the United States.

The mass victimization of asylum seekers runs afoul of U.S. law and this country’s treaty obligations, which prohibit subjecting asylum seekers to such risks. “Uncontested evidence in the record establishes that [migrants returned to Mexico under the administration’s policy] risk substantial harm, even death, while they await adjudication of their applications for asylum,” wrote Judge William A. Fletcher of the U.S. Court of Appeals for the 9th Circuit, which ruled against the policy but let it stand pending further appeals.

. . . .

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

Read the complete editorial at the above link.

It’s great to be on the right aside of history here. But, it would be better to make history by getting essential “regime change” in November – across the board.

DUE PROCESS FOREVER!

PWS

03-08-20

ROUND TABLE NEWS: Getting The Due Process Message Across — 9th Cir. Orders Regime To Respond To Round Table’s Amicus Briefs in Matter of A-B- Challenges!

Lory Rosenberg — Hon. Lory Diana Rosenberg
Senior Advisor
Immigrant Defenders Law Group, PLLC

Round Table stalwarts Judge Jeffrey S. Chase and Judge Lory Diana Rosenberg report:

Notice of Docket Activity

The following transaction was entered on 03/03/2020 at 3:25:28 PM PST and filed on 03/03/2020

Case Name: Sontos Diaz-Reynoso v. William Barr

Case Number: 18-72833

Document(s): Document(s)

Docket Text:

Filed clerk order (Deputy Clerk: AF): The panel previously ordered that argument for the above-captioned cases would proceed with Diaz-Reynoso v. Barr, No. 18-72833 being argued first. The panel supplements its previous order for argument in this first case, as follows: Petitioner will argue, reserving time for rebuttal if desired, then Amicus Curiae The Center for Gender and Refugee Studies will argue, then Respondent will have an opportunity to respond to both Petitioner and the Amicus, and finally Petitioner may use any time reserved for rebuttal. Additionally, Respondent should be prepared to address the arguments raised by Amici Curiae Thirty-Nine Former Immigration Judges and Members of the Board of Immigration Appeals. [11616996] [18-72833, 18-72735, 18-73434, 19-70489] (AF)

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

Great to know that at least some Article IIIs are paying attention. We can only hope that they will act on our expert views and save some very deserving and highly vulnerable lives. Of course, we couldn’t have gotten this far without the amazing pro bono team over at Gibson Dunn!

Knjightess — Knightess of the Round Table

PWS

03-08-20

CHILD ABUSE: New EOIR Program Puts Kids On Deportation Assembly Line!

https://www.abajournal.com/news/article/aba-president-calls-for-end-to-new-video-teleconference-program-for-unaccompanied-children

Amanda Robert reports for the ABA Journal:

ABA President Judy Perry Martinez joined leaders from Kids in Need of Defense on Wednesday in condemning a new pilot program at the Houston Immigration Court that requires all cases involving unaccompanied immigrant children to be heard via video teleconference.

Under the program, the Trump administration calls for the testimony of unaccompanied children to be streamed from Houston to Assistant Chief Immigration Judge Sirce Owen, who will hear cases in Atlanta. The program will begin March 9 and last for about two months.

“What is about to happen in Houston is wrong,” Martinez said during a briefing on the program. “It will hurt children and is contrary to the American pursuit of justice. The American Bar Association opposes the policy, and we need action against it now.”

Martinez explained that the ABA Commission on Immigration has extensive experience with children in immigrant courts and created standards of care and conduct based on its experience. She said that among those standards is a strong opposition to video teleconferencing in immigration proceedings involving children.

She recalled visiting a children’s shelter during one of her trips to volunteer with the ABA’s South Texas Pro Bono Asylum Representation Project. She thought then about what runs through the mind of an unaccompanied child who just entered the United States and must go to court.

“For a child, it must be truly troubling, if not terrifying—especially for a child who doesn’t speak English, who doesn’t know what to expect in a U.S. courtroom and who may not have a lawyer or other trusted adult to guide him or her,” she said. “Imagine how much more bewildering that experience must be for a child in a courtroom with no judge in person, live there with them. Only a small TV screen.”

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

Read the rest of the article at the above link.

Ah, picking on children, rather than trying to insure Due Process. There’s a name for those who pick on the most vulnerable.

PWS

03-07-20

LOWERING THE BARR — U.S. District Judge Reggie Walton Enters “Adverse Credibility Ruling” Against Billy Barr! — “The attorney general’s ‘lack of candor’ and ‘misleading public statements,’ Walton concluded, undermine his ‘credibility,’ and the credibility of the DOJ.”

https://slate.com/news-and-politics/2020/03/barr-mueller-report-redactions-foia.html

Mark David Stern reports for Slate:

Attorney General William Barr’s wildly inappropriate campaign to spin the Mueller report in Donald Trump’s favor last year may have finally backfired. On Thursday, U.S. District Judge Reggie Walton ordered Barr to submit the full, unredacted report so he could assess whether the Department of Justice’s redactions comply with the Freedom of Information Act. Walton’s remarkable order noted that Barr’s “misleading public statements” about the report raise the possibility that his redactions are “tainted” and “self-serving”—and, by extension, illegal.

On March 24, Barr notoriously provided a “summary” of the 381-page Mueller report just two days after receiving it. He cited special counsel Robert Mueller’s report as saying that the investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities,” leaving out the damaging first half of that sentence. Barr also wrote that he and Deputy Attorney General Rod Rosenstein had concluded “that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” In reality, Mueller had determined that he would not offer an opinion on the matter but that the evidence gathered was not sufficient to clear Trump of obstruction of justice.

Three days after Barr released his summary, Mueller sent a letter to the attorney general stating that the summary “did not fully capture the context, nature, and substance” of the report. When members of Congress asked Barr about Mueller’s possible objections to his summary, he flatly lied. And on April 18, Barr delivered a stunningly dishonest press conference effectively announcing that the report exonerated the president.

In his Thursday order, Walton took issue with both the “summary” and the press conference. Barr’s initial summary, he wrote, “distorted the findings in the Mueller Report” in at least two ways. First, Barr “failed to indicate” that Mueller “identified multiple contacts” between the Trump campaign “and individuals with ties to the Russian government.” Second, he excluded the fact that Mueller “determined not to make a traditional prosecutorial judgment” about Trump’s alleged obstruction of justice, falsely implying that the report found no obstruction.

. . . .

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

Read the full article at the link.

So, migrants who tell the truth too often are found to be “not credible” by Barr’s wholly-owned Immigration Judges because of some minor discrepancy in their testimony. But, Barr blatantly and openly lies and gets to continue screwing up our justice system. What’s wrong with this picture?

Uh, “lack of candor tribunals” — isn’t that a ground for discipline or disbarment?

PWS

03-07-20

LET THE ABUSES CONTINUE, FOR NOW: 9th Cir. Narrows Injunction, Gives Regime More Time To Run To Supremes In “Let ‘Em Die in Mexico” Case!

Alicia A. Caldwell
Immigration Reporter
Wall Street Journal

https://www.wsj.com/articles/court-that-blocked-remain-in-mexico-policy-allows-trump-plan-to-continue-for-now-11583384892?emailToken=3d88d04ba6e0267b24183aeb003a59841pEMx5ESI74stBjp+ZpKYErsxvBZHs4r7z2JEGHjqSpm7KZjdf8IJ/iZcdhOB2Ytav16Qr6r69LWwl/7qGG8nBDWbh74ZK0/s0LOHmwoISQqsM1pgRKc/uJmRZWGyLejN3fPtK25mg+isMJHOciZTg%3D%3D&reflink=article_email_share

Brent Kendall and Alicia Caldwell report for the WSJ:

A federal appeals court for now agreed to narrow the effect of its recent ruling that blocked a Trump administration policy of returning immigrants at the southern U.S. border to Mexico while their requests for asylum are considered.

The San Francisco-based Ninth U.S. Circuit Court of Appeals, in an order issued Wednesday, said it ruled correctly last week that the administration’s “Remain in Mexico” policy is unlawful. But the court acknowledged the “intense and active controversy” over nationwide injunctions against administration policies and said it would limit its ruling for now to the two border states within its jurisdiction: Arizona and California.

. . .

The Ninth Circuit also said none of its ruling would go into effect until March 12, to give the Trump administration a week to ask the Supreme Court for an emergency stay to keep the policy in place every-where for the time being.

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

The plaintiffs have already “won” this case about the regime’s unlawful actions twice. But, they are yet to get any meaningful relief. Instead, folks continue to suffer and be irreparably harmed while the wheels of justice slowly grind.

PWS

03-06-20

“POLITBURO COURTS” ARE CLOWN COURTS🤡🤡: ANOTHER IMMIGRATION JUDGE QUITS AFTER IMPROPER REGIME PRESSURE TO TILT RESULTS!

Andrew Naughtie
Political Reporter
The Independent

Hon. Charles Honeyman — Honorable Charles Honeyman
Retired U.S. Immigration Judge
Member, Round Table of Former Immigration Judges

https://apple.news/A5ORx13cZQ3ar2fi70BcjJA

Andrew Naughtie reports for The Independent:

An immigration judge in Philadelphia has stepped down from the bench early citing pressure from the Trump administration, which he says is turning the Immigration Court into a “politburo rubber stamp”.

Speaking to the Philadephia Inquirer, Judge Charles Honeyman described how he left the bench earlier than he had planned after the government began taking a harder line on immigration and deportation cases.

“At some point I was just not comfortable,” he told the paper.

Judge Honeyman is now joining the immigration law firm of Solow, Isbell, & Palladino, which specialises in immigration cases. There, he will provide litigation advice to clients facing deportation.

Immigrants subject to removal cases often struggle to gain legal representation in the court system, with up to two thirds going into their cases without counsel – radically reducing their chances of remaining in the US.

‘Families belong together’ protests over Trump immigration policy

The Immigration Court system sits outside the judiciary and is governed instead by the Justice Department’s Executive Office for Immigration Review. That means it is subject to direct political pressure from the administration, including instructions from the attorney general, whose interpretation of the law immigration judges are meant to follow.

. . . .

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

Read the complete article at the link.

Proud that Judge Honeyman is a member of the Round Table of Former Immigration Judges.

PWS

03-05-20

THE GIBSON REPORT — 03-02-20 — Compiled by Elizabeth Gibson, Esquire, NY Legal Assistance Group

TOP UPDATES

Federal judge rules Cuccinelli appointment unlawful

Politico: The order strikes down directives from Cuccinelli that sped up asylum-seekers’ initial screenings limited extensions of those hearings, on the grounds that Cuccinelli lacked authority to issue them.

New Rule Seems Designed to Halt Valid Immigration Court Petitions By Drastically Hiking Fees

AILA expressed serious concerns about a new proposed rule that would detrimentally impact individuals seeking a fair day in immigration court by drastically increasing fees required for forms submitted to EOIR. [Fee to appeal an immigration judge decision would go from $110 to $975.] AILA Doc. No. 20022800

Appeals court pauses its ruling that dealt major blow to administration’s immigration agenda

CNN: A federal appeals court temporarily allowed the Trump administration to continue sending migrants to Mexico to wait for their immigration hearings in the US, hours after issuing a ruling that ended the policy.

Sanctuary States, City Lose Appeal on Federal Grant Cuts

Courthouse News: Reversing a sweeping injunction, the Second Circuit gave the Justice Department a green light Wednesday to withhold funding from New York City and seven states in retaliation for their sanctuary policies on immigration. See also TRAC Reports That ICE Sent Detainers to 3,671 Law Enforcement Agencies in FY2019.

An Anti-Immigrant Law That Goes Too Far, Even for the Supreme Court

Slate: Remarkably, a majority of the justices seemed prepared to invalidate the statute, or at least dramatically narrow its scope. As hostile as this court is to immigrants, it may draw the line at a law that literally criminalizes immigration advocacy.

White House chief of staff Mick Mulvaney caught on tape saying US is “desperate” for more immigrants

Salon: He further undermined the administration’s claims of its economic prowess, admitting that immigration is necessary for sustained economic growth. See also U.S. population will decline faster without steady immigration, Census report says.

The Department of Justice Creates Section Dedicated to Denaturalization Cases

DOJ: The Denaturalization Section will join the existing sections within the Civil Division’s Office of Immigration Litigation—the District Court Section and the Appellate Section. This move underscores the Department’s commitment to bring justice to terrorists, war criminals, sex offenders, and other fraudsters who illegally obtained naturalization.

The Trump Administration Is Gagging America’s Immigration Judges

Atlantic: For more than two years, immigration judges have been subject to a policy that more or less prevents them from performing an essential part of their civic duties: speaking publicly about their work.

The Absurdity and Danger of Trump’s Deal to Send Asylum Seekers to Guatemala

MJ: Since the first flight in November, the Trump administration has sent more than 700 Hondurans and Salvadorans to Guatemala, about 75 percent of whom are women and children.

An early look at the 2020 electorate

Pew: Taken together, this strong growth among minority populations means that a third of eligible voters will be nonwhite in 2020, up from about a quarter in 2000. This increase is at least partially linked to immigration and naturalization patterns: One-in-ten eligible voters in the 2020 election will have been born outside the U.S., the highest share since at least 1970.

TRAC Reports on Application of Public Charge Laws in Immigration Removal and Enforcement

Analyzing government records, TRAC found that, in the recent past, public charge laws have rarely been used to remove individuals from the U.S. and that there is “little data to suggest that America’s immigration enforcement institutions are awash in immigrants who are unable to be self-sufficient.” AILA Doc. No. 20022836

LITIGATION/CASELAW/RULES/MEMOS

I-765 and N/A N/A N/A None N/A

The I-765 instructions state that all questions must be answered or state “N/A” or (where the question asks for a numerical response, such as number of children) “none.” See also Updated Advisory: Blank Spaces on Form I-918, Petition for U Nonimmigrant Status

Page Limits and Laptops at EOIR

EOIR practice manual updates include a 25-page briefing limit and an electronic devices policy that permits the use of laptops. Reports indicate people have been able to use laptops at MCHs and Individuals in NYC. The index of updates starts on page 263 of the practice manual.

Attorney General Refers Case to Himself and Then Vacates Board’s Decision on Definition of “Torture”

The AG vacated the BIA’s decision granting deferral of removal under CAT and remanded for review, noting that the BIA should consider de novo respondent’s claim that it is more likely than not that he will be tortured upon return to Mexico. Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020) AILA Doc. No. 20022701. See also The Real Message of Matter of R-A-F-.

BIA Affirms Ruling That Sexual Offense in Violation of a Maryland Statute Enacted to Protect Minors Is a CIMT

Reaffirming Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017), the BIA ruled that sexual solicitation of a minor in violation of section 3-324(b) of the Maryland Criminal Law is categorically a crime involving moral turpitude. Matter of Jimenez-Cedillo, 27 I&N Dec. 782 (BIA 2020) AILA Doc. No. 20022735

Herrera-Reyes v. Barr

CA3: This case presents the question whether and under what circumstances threats of violence may contribute to a cumulative pattern of past persecution when not coupled with physical harm to the asylum-seeker or her family. We conclude the Immigration Judge and the Board of Immigration Appeals erred in holding that Petitioner Jeydi Herrera-Reyes— a Nicaraguan national who received death threats from members of the governing Sandinista Party after her home was burned down, a convoy in which she was traveling came under gunfire, and a political meeting she was organizing was robbed at gunpoint—had not suffered past persecution within the meaning of the asylum statute. We will therefore grant the petition for review and vacate and remand to the BIA.

Ali v. Barr

CA5: Nadeem Ali lost his status as a legal permanent resident (“LPR”) when he was convicted of certain drug offenses. He challenges that result by arguing that—at the time of his drug convictions—he was both an LPR and an asylee. The Board of Immigration Appeals (“Board” or “BIA”) disagreed. So do we.

Supreme Court Says Bivens’ Holding Does Not Extend to Claim Based on Cross-Border Shooting by CBP Agent of Mexican Teen

The Supreme Court refused to extend a claim under Bivens v. Six Unknown Fed. Narcotics Agents into the new context of cross-border shootings, finding that the family of a Mexican teen could not pursue a damages suit against the CBP agent who shot him. (Hernandez v. Mesa, 2/25/20) AILA Doc. No. 20022601

Argument preview: What process is due in streamlined administrative procedures?

SCOTUSblog: Department of Homeland Security v. Thuraissigiam, which will be argued on March 2, raises important questions about whether asylum-seekers may challenge mistakes made during the expedited removal process.

DHS employee told to report to work in Newark after China travel, in violation of coronavirus quarantine, complaints say

WaPo: A Department of Homeland Security employee who returned from travel to China was told by her supervisor to report to her workplace in early February in apparent violation of a mandatory 14-day coronavirus quarantine period, according to complaints filed Friday by the union that represents the woman’s co-workers.

Safe Horizon and ASISTA File FOIA Request Seeking Immigration Policy Data Related to U-Visa Adjudications

Safe Horizon and ASISTA filed a Freedom of Information Act (FOIA) request with USCIS for immigration policy data on the adjudication of U visa petitions and adjustment of status applications for those granted U visa status. AILA Doc. No. 20022832

USCIS Issues Alert on Rescheduling Appointments Due to Coronavirus (COVID-19)

USCIS issued an alert advising individuals to follow instructions on the appointment notice and to reschedule appointments or interviews with USCIS if they were in China within 14 days of their appointment; believe they may have been exposed to COVID-19; or are experiencing flu-like symptoms. AILA Doc. No. 20022736

Presidential Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus

President Trump issued a proclamation that, with some exceptions, suspends and limits entry into the U.S., as immigrants or nonimmigrants, of persons who were physically present in Iran during the 14-day period preceding their entry/attempted entry. This proclamation also amends Proclamation 9984. AILA Doc. No. 20030235

USCIS Issues Policy Guidance on the Effect of Breaks in Continuity of Residence on Eligibility for Naturalization

USCIS issued policy guidance clarifying that naturalization applicants absent from the U.S. during the statutory period for more than six months but less than a year must overcome the presumption that the continuity of residence has been broken in order to remain eligible for naturalization. AILA Doc. No. 20022634

USCIS Announces Re-Registration Period Now Open for Current TPS Beneficiaries Under Yemen’s Designation

USCIS announced that current beneficiaries of TPS under Yemen’s designation who want to maintain their status through 9/3/21 must re-register between 3/2/20 and 5/1/20. USCIS will issue new EADs with a 9/3/21 expiration date to eligible beneficiaries who timely re-register and apply for an EAD. AILA Doc. No. 20030231

RESOURCES

Updated Advisory: Blank Spaces on Form I-918, Petition for U Nonimmigrant Status

Gangs and Modern-Day Slavery in El Salvador, Honduras and Guatemala: A Non-Traditional Model of Human Trafficking

Preparing Your Practice for Public Charge Cases

‘How do I convince the Home Office I’m a lesbian?’

Practice Pointer: Requesting to Interfile or Transfer the Preference Category of a Pending I-485 Application

USCIS Issues Policy Alert on Implementation of Guidance on Inadmissibility on Public Charge Grounds

Six Personal and Office Management Questions to Ask When Feeling Overwhelmed

AIC fact sheet on sanctuary policies

Public Charge Update: Review of DOS Implementation

Reverse Migration to Mexico Led to US Undocumented Population Decline: 2010 to 2018

No Safe Harbor: The Landscape of Immigration Legal Services in New York

EVENTS

3/3/20 Promoting Due Process for Immigrants in New York: RSVP to Renuka Sawhney rsawhney@Vera.org by COB today

3/4/20 Incarceration and Detention: Examining the Mass Incarceration and Detention Privatization Movement and Implications for the Public’s Health

3/5/20 Homeland Security Investigations And Human Trafficking

3/10/20 Webinar: Does ICE have access to your driver’s license data?

3/11/2020 New York’s Promise Package Lobby Day

3/16/20 BIA Appeals

3/18/20 Victory for Liberians in the U.S.: Deferred Enforced Departure, A Pathway to Citizenship, and An Immigration Success Story

3/19/20 2020 Updates and Hot Topics in Family-Based Adjustment of Status Cases

3/22-24/20 NITA Advocacy in Immigration Matters

3/23-27/20 Defenders’ Academy

3/26/20 How to Build a Better Affidavit- Literary Techniques for Legal Writing.

3/30/20 Analyzing Criminal Records for Immigration Cases

3/30/20 40-Hour Overview of Immigration Law

4/30/20 2020 Federal Court Litigation Conference

7/23/20 Defending Immigration Removal Proceedings 2020

10/1/20 Representing Children in Immigration Matters 2020: Effective Advocacy and Best Practices

ImmProf

Monday, March 2, 2020

Immigration Article of the Day: Revisiting Economic Assimilation of Mexican and Central American Immigrants in the United States by Giovanni Peri and Zachariah Rutledge

Asian American lawmakers are calling on their colleagues to halt the spread of rumors regarding coronavirus, in an effort to curb the rising xenophobia and discrimination tied to the illness

The Michigan Compact on Immigration: Business leaders release ‘Michigan Compact’ in support of immigration

Sunday, March 1, 2020

Judge rules Cucinelli unlawfully appointed to run DHS

Your Playlist: Meklit

Trump calls coronavirus criticism Democrats’ ‘new hoax’ and links it to immigration

Saturday, February 29, 2020

The Trump Administration Is Gagging America’s Immigration Judges

Undocumented, Black, and Unseen

Trump Immigration Measures Suffer Setbacks in the Ninth Circuit

Ninth Circuit Refuses to Vacate Sheriff Joe’s Contempt Conviction

Urban Institute: Date on the Children of Immigrants

Scholarship Opportunity for Immigrant Students

Thursday, February 27, 2020

Proving Sexuality

CU Colloquium Features Research on Citizenship: Mapping Citizenship by Carolina Nunez and Rejecting Citizenship by Rose Cuison-Villazor

Growing influence of newly-naturalized voters

Newsweek: Democrats Must Hold Immigration Debate on How They Plan to Stop ‘White Supremacists’ Shaping Policy, Advocates Say

Second Circuit Rules for Trump Administration in Sanctuary Cities Case

Wednesday, February 26, 2020

Berkeley Law: 2020 Riesenfeld Symposium — Borderline: Problems and Perspectives in Global Migration

Teaching Padilla

Immigration Article of the Day: Reverse Migration to Mexico Led to US Undocumented Population Decline: 2010 to 2018 by Robert Warren

The Department of Justice Creates Section Dedicated to Denaturalization Cases

Amy Klobuchar’s record as a DA: Anti-immigrant, anti-people of color?

Justices Seem Inclined to Find Immigration Criminal Statute to Violate the First Amendment

Tuesday, February 25, 2020

U.S. Supreme Court argument preview: What process is due in expedited removal?

Conference: NYU School of Law — Immigration, Equal Protection, and the Promise of Racial Justice The Legacy of Jean v. Nelson

Legal migration to decline by one-third due to Trump policies

Breaking News: Supreme Court decides cross border shooting case

DHS Implements Inadmissibility on Public Charge Grounds Final Rule

Legal immigration will decline by 30 percent next year due to Trump policies, report projects

Supreme Court argument preview: Do federal courts have jurisdiction to review a challenge to an administrative denial of relief under the Convention Against Torture?

Monday, February 24, 2020

White House chief of staff Mick Mulvaney caught on tape saying US is “desperate” for more immigrants

Refugee Docents Help Bring A Museum’s Global Collection To Life

Rothgerber Conference Women’s Enfranchisement: Beyond the 19th Amendment at CU Boulder

Supreme Court to Hear Oral Argument in First Amendment/Immigration Case

Federal Court Stops DHS From Arresting US Citizens’ Foreign Spouses During Marriage Interviews

Visa Indefinitely Delayed for German visiting professor, unable to enter U.S.

From the Bookshelves: The Readmission of Asylum Seekers under International Law by Mariagiulia Giuffré

*********

Thanks, Elizabeth, for keeping us abreast of all the regime’s assaults on humanity, and then many successful counterattacks being led by the New Due Process Army!

PWS

03-04-20

🤡🤡CLOWN COURT REPORT: As Due Process Goes Into “Death Spiral,” Regime Muzzles Immigration Judges!

Cristian Farias reports in The Atlantic:

For more than two years, immigration judges have been subject to a policy that more or less prevents them from performing an essential part of their civic duties: speaking publicly about their work.

Since September 2017, immigration judges and all other employees at the Justice Department’s Executive Office for Immigration Review have been required to adhere to an onerous pre-approval process whenever they desire or are invited to speak publicly on any issue, immigration-related or not. I learned of the policy through a Freedom of Information Act request my colleagues made to the department, as part of an investigation I’ve been conducting on the intersection of free speech and U.S. border enforcement.

Read: The thousands of children who go to immigration court alone

It is not uncommon for government agencies to set rules on employee conduct and outside activities. But the perspective of immigration judges is particularly valuable to the public, especially one grappling with complicated questions about America’s immigration laws. In his 2019 year-end report on the federal judiciary, Chief Justice John Roberts commended American judges who, “without fanfare or acclaim,” take time to reach out to their communities in all sorts of public-education initiatives. As Ashley Tabaddor, the president of the National Association of Immigration Judges, told Congress in 2018, immigration judges “help the community better understand our immigration courts and their function in the community, helping to demystify the system and bring transparency about our operations to the public.”

Although immigration judges are employees of the executive branch, they’re judges in the truest sense of the term, presiding over cases that have enormous consequences for asylum seekers or people facing removal from the U.S. The Trump administration appears determined to remove from the public’s view the very people the chief justice and Tabaddor believe play an essential role in promoting public confidence in the administration of justice. The Justice Department should heed their call—rescind its misguided policy and let judges speak.

In the 2017 memo, the official overseeing the work of immigration judges, James McHenry III, did acknowledge that “the public has become increasingly interested in hearing about, and understanding, what the agency does and specifically how Immigration Courts operate.” But the policy went on to severely restrict judges’ freedom to speak even in a personal capacity about these matters, requiring them to seek permission through the chain of command. “Supervisors will determine the capacity in which an employee is speaking,” McHenry’s memo stated, thus effectively eliminating a judge’s discretion to speak about immigration in public settings, even with a disclaimer that he or she was doing so in a personal capacity. Supervising judges and other senior employees have it even worse—they are simply forbidden from speaking at public events in a personal capacity at all.

Lawyers at the Knight First Amendment Institute at Columbia University, where I’ve been conducting my investigation, believe that the policy violates the First Amendment, and in early January issued a letter asking the Justice Department to suspend it. Their reasoning was grounded in well-settled Supreme Court precedent. In the 1968 case Pickering v. Board of Education, the Supreme Court recognized that public employees’ “right to speak on issues of public importance” doesn’t vanish the moment they take a government job. For the government to restrain public employees’ ability to speak, the Supreme Court has said, the Constitution requires officials to show that their interest in restraining speech outweighs employees’ interest in speaking and the public’s interest in hearing what they have to say. “The Government must show,” Justice John Paul Stevens explained in a 1995 case, “that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s ‘necessary impact on the actual operation’ of the Government.” That’s a heavy lift.

The Justice Department hasn’t officially responded to the lawyers’ letter. But in mid-January, McHenry’s office did reply in a way: It purported to reissue the 2017 memorandum, calling it “established policy,” and unveiled an online portal through which immigration judges may submit their speaking-engagement requests for approval. According to the department, the new portal was necessary “to provide for more certainty and clarity” for judges, an implicit acknowledgment that the earlier guidance was causing confusion among immigration judges. (The reissued policy hasn’t been made public, but a person familiar with it showed it to me.)

. . . .

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

Read Cristian’s complete article at the above link.

”The truth will set you free.” But, at EOIR, the truth will get you fired!

Given the due process and management disasters going on at EOIR, it’s not surprising that they want to silence the witnesses. What is surprising is that they have been getting away with it so far.

NOTE: Even prior to becoming the home of EOIR Headquarters, Bailey’s Crossroads had long reputation of being associated with the circus. However, more recent scholarship has cast doubt on those claims. According to this Washington Post article, Bailey’s Crossroads’ claimed association with the Ringling Bro’s Barnum & Bailey Circus might be as attenuated as EOIR’s claimed association with due process and fundamental fairness! https://www.washingtonpost.com/archive/local/2002/05/19/history-at-the-crossroads/5da541c9-5aa4-49cc-83f9-7ecb49a1b12b/

However, what the article does correctly point out, and EOIR under the influence of the White Nationalist regime appears to have forgotten, is that Bailey’s Crossroads has a long history of being a vibrant community of industrious immigrants who made Northern Virginia into what it is today!

Due Process Forever; Clown Courts Never!

PWS

03-03-20

HON. JEFFREY S. CHASE: The Message From Barr’s Improper Intervention in Matter of R-A-F-: Forget The Law, You Are My Stooges! — Only An Independent Article I Immigration Court Will End This Mockery of Due Process & Fundamental Fairness!

https://www.jeffreyschase.com/blog/2020/3/1/the-real-message-of-matter-of-r-a-f-

The Real Message of Matter of R-A-F-

On February 26, the Attorney General (or more likely, someone authorized to speak on his behalf) issued a precedent decision in Matter of R-A-F-. My take on the import of this decision seems to be different than most. Let me first provide some background.

Most people seeking asylum in this country also apply for a lesser form of protection called withholding of removal under Article III of the U.N. Convention Against Torture (“CAT” for short). Whereas asylum provides a path to U.S. permanent residence, CAT only prevents someone with a deportation order from being sent to a country in which they are likely to suffer torture. CAT generally only comes into play where the applicant isn’t found eligible for asylum, something which is happening more frequently as the present administration churns out new bars and obstacles to eligibility.

To provide an example, someone who establishes they will likely be murdered or raped if returned to their country may be barred from even applying for asylum if they didn’t file their application within one year of their arrival in this country, or if they did not apply for asylum in a third country they passed through en route to the southern border. Even if allowed to apply, they may still be denied asylum if the immigration judge does not determine that their persecution would be for the proper motive. But while our asylum laws as written allow some leeway as to whom the government will afford permanent status in the U.S., the same government is bound by international treaty not to send an individual to a place where they would suffer persecution. It is often CAT that fills the gap between those who are not permitted to remain permanently but should nevertheless not be repatriated.

The U.S. was one of 154 countries to sign the U.N. Convention Against Torture. However, it was the only country to add a “specific intent” requirement to its internal regulations implementing the convention, requiring a finding that the torture “be specifically intended to inflict severe…pain and suffering,” and specifically excluding acts that result “in unanticipated or unintended severity of pain or suffering.”1 The specific intent requirement seriously undermines the purpose of the law, as many are forced to rely on CAT specifically because they couldn’t prove the proper intent of their persecutor that is required for asylum. It is thus necessary for the specific intent provision to be interpreted in the least restrictive manner for CAT to function in its intended way.

In 2002, the BIA had its first chance to interpret how the specific intent requirement should be applied in a case called Matter of J-E-. At the time, the BIA was comprised of judges holding diverse views of the law. As a result, the Board was sharply split on the issue. The more restrictive reading won out, but 6 judges dissented.2 Five of them were no longer on the BIA a year later following then Attorney General John Ashcroft’s infamous purge of Board judges whom he viewed as too liberal.

An important point that was glossed over in the majority opinion in Matter of J-E- and its progeny is that where governments do intentionally maintain horrific conditions in its prisons or mental institutions that are intended to punish those institution’s populations, they tend to be smart enough not to admit to it. To illustrate this point, I refer to a November 12, 2019 report of the Washington Post finding that although the Trump Administration characterized its outrageous treatment of unaccompanied immigrant children as an unintended consequence of the volume of immigrants seeking asylum at the border, such outcome “also was a result of policy decisions that officials knew would ensnare unaccompanied minors in bureaucratic tangles and leave them in squalid conditions.”

Cognisant of this fact, in his dissenting opinion in Matter of J-E-, Hon. Paul W. Schmidt found the specific intent requirement to be satisfied by a “clearly documented acceptance of extreme mistreatment amounting to torture as a routine aspect of detention in Haiti.” Concluding that the Haitian government “cannot claim it does not know what happens to detainees in its prisons,” Judge Schmidt found the specific intent requirement to have been met. Hon. Lory D. Rosenberg began her companion dissenting opinion in the case by quoting from the Second Circuit that “Among the rights universally proclaimed by all nations . . . is the right to be free of physical torture.”3

In late 2018, the BIA again rejected such arguments and reiterated the majority view of J-E- in another precedent decision, Matter of J-G-R-P-. This time, the BIA did so in a three-judge panel decision in which there were no dissents. As this decision was published less than 16 months prior to the A.G.’s decision in R-A-F-, there was really no need at the time the A.G. issued R-A-F- for another decision on the topic.

I thus believe the real motive behind issuing the decision was not to give guidance, but rather to serve warning. While published precedential decisions have always received broad attention, individual BIA appellate judges have felt safe affording relief in sympathetic cases in unpublished decisions where the outcome is generally known only to the parties involved.

A colleague recently made me aware of a job posting within EOIR for an attorney to work not for the Immigration Courts or the BIA, but rather within the office of EOIR’s director, James McHenry, who has imposed the administration’s political will on the agency’s judges with a heavy hand. The job description included “review(ing) court cases including appeals cases for adherence to procedural requirements, proper interpretation and application of statutes, regulations and precedents,” and “recommend(ing) action on precedent-setting issues to senior officials.” In other words, McHenry was looking to hire what is commonly referred to as a “snitch” to sort through decisions that might not pass muster with the likes of Stephen Miller, and flag them for corrective action. One such shameless staffer apparently flagged R-A-F- in this manner, and through the resulting A.G. certification, the case will serve as a cautionary tale for a group of BIA judges that certainly hasn’t forgotten the fate of the Matter of J-E- dissenters.

The decision in question was issued in September by Appellate Immigration Judge Linda Wendtland, whose retirement party was held this past week. Judge Wendtland is by no means a liberal, and worked the majority of her career for the Department of Justice; prior to her appointment to the BIA, she had been an assistant director with the DOJ’s Office of Immigration Litigation. But Judge Wendtland is highly knowledgeable of the law, and is reasonable and fair (all endangered qualities on the present BIA).

Looking to Judge Wendtland’s decision below, it would be difficult to find a more sympathetic applicant than R-A-F-. The respondent seeking CAT protection is in his 70s, and suffers from Parkinson’s disease, dementia, Major Depressive Disorder, traumatic brain injury, PTSD, and chronic kidney disease. The evidence of record established that if returned to his native Mexico, R-A-F- faced a significant risk of being institutionalized in a facility in which he could be subject to physical and sexual abuse, physical and chemical restraints, and containment in cages and isolation rooms, all without access to justice. Judge Wendtland agreed with the Immigration Judge that such treatment rose to the definition of torture.

Based on her reputation and body of work, Judge Wendtland is undoubtedly someone who had earned the right to have her decision in R-A-F- accorded deference. However, these are different times. And instead of deference, the A.G. (who, of course, knows next to nothing about immigration law or the specific matter in question) chose to unceremoniously refer to himself and then slam the BIA’s decision. The legacy of such action will be fully felt the next time a single judge at the BIA has the opportunity to affirm a similarly sympathetic grant of relief, but will instead choose not to do so out of fear and self-preservation. This is not how justice should be afforded to our country’s most vulnerable population.

Notes:

8 C.F.R. § 1208.18(a)(5).

I am proud to note that the authors of the two dissenting opinions, Paul W. Schmidt and Lory D. Rosenberg, and former BIA judge Cecelia Espenoza, who joined in both dissents, are presently members of the Round Table of Former Immigration Judges.

Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980).

Copyright 2020 Jeffrey S. Chase. All rights reserved.

Reprinted with permission.

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

Thanks, Jeffrey my friend, for the “shout out” for the dissents of Lory, Cecelia, and me in Matter of J-E-!

I recently reached the same conclusion as Jeffrey about R-A-F-, although in less scholarly, measured, and elegant terms: https://immigrationcourtside.com/2020/02/28/barr-to-his-wholly-owned-immigration-judges-just-deny-cat-protection-any-ol-ground-will-do-matter-of-r-a-f-27-in-dec-778-a-g-2020/.

I have said before that I always respected Judge Wendtland. She was a scholarly, industrious, fair-minded, “center right” jurist. While I had been exiled from the BIA before she was appointed, she seemed like a judge with whom I would have enjoyed having a continuing dialogue, much like my more conservative, yet thoughtful and scholarly, friend the late Judge Lauri Steven Filppu. And, we probably would have ended up on the same side of a number of issues coming before the BIA.

It’s both disheartening and enraging to see that even “conscientious conservative” jurists like Judge Wendtland get no real respect and deference from the likes of Billy Barr and his toady colleagues. And, the function of having Director McHenry “ride heard” on the BIA is both unethical and stupid, since he is not an Immigraton Judge himself. Indeed, the gross incompetence with which todays’ EOIR is managed suggests that the Director’s sole role should be to attend to the failing administrative and support structure of the Immigration Courts in a nonpartisan, apolitical manner under the direction of, not overseeing, the BIA Chair and the Chief Immigration Judge.

This system is broken! Every time an Article III Circuit Court signs off on an order of removal resulting from this unconstitutional, unethical, and grossly mismanaged morass, those Article III Judges enable the regime’s continuing fraud, waste, and abuse, and shirk their sworn constitutional duties.

PWS

03-02-20

BARR TO HIS WHOLLY OWNED IMMIGRATION JUDGES: Just Deny CAT Protection – Any Ol’ Ground Will Do – Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020)

https://www.justice.gov/eoir/page/file/1252416/download

Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020)

EOIR HEADNOTES:

(1) The Board of Immigration Appeals should consider de novo the application of law to the facts of this case, including whether the deprivations that the respondent would be likely to encounter upon removal to Mexico would constitute “torture” within the meaning of the Department of Justice regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994).

(2) To constitute “torture” under these regulations, an act must, among other things, “be specifically intended to inflict severe physical or mental pain or suffering.” 8 C.F.R. § 1208.18(a)(5). “‘[T]orture’ does not cover ‘negligent acts’ or harm stemming from a lack of resources.” Matter of J-R-G-P-, 27 I&N Dec. 482, 484 (BIA 2018) (citing Matter of J-E-, 23 I&N Dec. 291, 299, 301 (BIA 2002)).

(3) To constitute “torture,” an act must also be motivated by “such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind.” 8 C.F.R. § 1208.18(a)(1).

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

Actually, contrary to Billy Barr’s unethical “precedent,” the BIA “panel” in this case consisting of (now retired) Appellate Immigration Judge Linda Wendtland got this one completely right, as did the Immigration Judge.

Admittedly, this respondent isn’t a particularly sympathetic character. But, that’s totally irrelevant in a CAT deferral of removal case, where protection is mandatory if the respondent faces torture with Government acquiescence.

Let’s just take a cursory look at the publicly available information on what happens to mentally ill individuals in Mexico.

The Nightmare That Is Mexico’s Mental Health System

Published by Ariel Jacoby on Friday, April 15, 2016 | Features

Though there are an estimated 10 million people with mental, visual, hearing or motor disabilities living in Mexico, the country’s mental health system is so dysfunctional that the unlucky patients under its care are colloquially referred to as “abandanodos” – abandoned ones.

It’s an accurate description for these lost souls. A 93-page report from Disability Rights International revealed the horrific living conditions at Mexican mental health facilities, which are a breeding ground for human rights violations and abuse of the handicapped patients that these institutions are meant to help. Many patients never received a clinical diagnosis of their condition and don’t have families to give them private care – these patients remain locked inside the hospitals indefinitely and become completely anonymous to the world.

Patients rock back and forth in urine soaked clothes or walk about soiled, feces-smeared floors without shoes. Bedsheets are an uncommon luxury; hygiene is an abstract concept in a Mexican mental hospital where some “patients and their caretakers could not fully explain how or why they were institutionalized” (New York Times). Without proper oversight and the absence of any sort of registry system, it is not uncommon for mentally ill children to literally disappear from Mexican mental health facilities with no record of their name, age, or families.

In this dismal hole of human despair, atrocities are ubiquitous and plentiful. Many of the patients in these institutions have been detained against their will for years and will likely languish inside the walls of these torture chambers until their death. Psychotropic drugs are excessively relied upon to treat patients and the more aggressive patients who don’t respond to medication can be subject to forced lobotomies, which need only the approval of the facility director. Eric Rosenthal, the director of Disability Rights International, found that 1/4 of the mental health facilities were keeping patients in restraints for extended periods of time – an act that violates Article 1 of the United Nations convention against torture.

The concept of human rights has no real meaning or significance in these unregulated, inhumane environments. The investigation conducted by DRI revealed the severity and frequency of human rights violations within the walls of such state-run facilities. In one institution, a terrified blind patient admitted to being raped by one of the staff members – a claim that was quickly dismissed by Mexican officials. In another facility, investigators discovered two young women who had been institutionalized at a young age, grew up in the hospital, and had been working as unpaid laborers for years. There exists no record of how or why these women were institutionalized and Mexican law requires no legal review to detain them indefinitely as modern-day slave laborers.

The director of Samuel Ramirez Hospital, one of the 31 state-run mental health facilities in Mexico, calls his own hospital “hell” and has voiced his belief that the mental health of every patient at his facility have been made worse by their institutionalization. He blames the lack of proper funding and a deficiency of properly trained personnel – at a different mental institution nearby, there are only two psychologists and one doctor to treat the 365 patients who have been institutionalized there.

The sad state of Mexico’s mental health system can be traced back to its government’s complex and deep-rooted political issues. Mexico’s budget for mental health makes up about 2.5% of its overall health spending. This is an improvement from the paltry 1.6% allocated to mental health a decade ago, but still significantly lower than the WHO’s recommendation of 10%. Without a significant electorate of mental health advocates, mental health lacks any real political sway in Mexico. Back in 2006, Mexico was among 96 countries who ratified the United Nations Convention on the Rights of Persons with Disabilities. But it is clear that not much has changed within the system itself.

https://www.medelita.com/blog/the-nightmare-that-is-mexicos-mental-health-system/

Mexico isn’t Haiti or some other “poor country.” It’s the 15^th largest economy in the world. The allocation of a paltry 2-3% of spending on mental health is an intentional embrace of torture by the Mexican Government that relates directly to the dehumanized place of the mentally ill in Mexican society. A Mexican national being deported from the U.S. with a criminal record would very likely receive the “worst of the worst” – not “negligently” but very intentionally. Clearly,. the torture and punishment of the mentally ill just because they are mentally ill is “any reason based on discrimination of any kind.” I give this respondent 90 days max until he’s tortured to death if returned to Mexico. The conditions requiring mandatory deferral of removal under CAT have clearly been met.

Judge Wendtland was right. Barr is “dead” wrong. But, Billy’s message to his subordinates is clear: Forget the law: deny, deny, deny!

The system is broken. Removal of the Immigration Courts from the DOJ and the end of the ability of unqualified immoral politicos like Billy Barr to interfere in the judicial system in derogation of Constitutional Due Process is essential to the survival of our democracy.

Due Process Forever; Billy Barr Never!

PWS

02-29-20

EOIR’S LATEST RIPOFF: As “Justice” In Immigration Court Becomes A “Clown Show,” The Price Of A Ticket to “The Big Top” Will Rise By Nearly 1000%!🤡🤡

https://www.axios.com/trump-immigrant-fee-fight-deportation-02cfcff7-147b-479f-88e8-6eaa4dbc29ba.html

Steph W. Kight — Steff W. Kight
Politics Reporter
AXIOS

Stef W. Kight reports for AXIOS:

The Justice Department wants to dramatically increase fees for immigrants trying to fight deportation— including nearly $1,000 to appeal an immigration judge decision, according to a proposed Executive Office for Immigration Review rule.

Between the lines: It currently costs around $100 for immigrants to begin to legally fight deportation orders. If implemented, the new rule would raise fees to at least $305 and as much as $975, depending on the appeal.

By the numbers: In the rule, the administration argues that the discrepancy between fees collected and the processing costs “has become more of a burden on the immigration adjudication system as aliens overall have begun filing more of these fee-based forms and motions.”

They estimate that immigrants appealing deportation orders given by an immigration judge cost taxpayers $27.6 million in FY 2018. The rule proposes that fees be raised so that immigrants cover the total cost, which is how the $975 fee came about.

What they’re saying: When hearings are set two or three years in advance, immigrants have time to save for the fees. But with many new immigration judges and a rise in fast-track cases, that may no longer possible, immigration lawyer Jeffrey Chase, a former judge and senior legal advisor at the Board of Immigration Appeals, told Axios

Former immigration judge Paul Schmidt, who retired in 2016, told Axios in an email the proposed rule is “outrageous.”
He said correcting errors through the appeals process is one of the most important government functions. “That’s particularly true when the public segment ‘served’ is generally limited income individuals and getting results correct could be ‘life determining.’”

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

Here’s my complete commentary on EOIR’s latest shady maneuver:

In a single word, “outrageous.”

As set forth in the notice, EOIR is an “appropriated agency.” It was never supposed to recoup its costs, nor does it need to.

Correcting errors on appeal is probably one of the most important functions the Government performs. That’s particularly true when the public segment “served” is generally limited income individuals and the getting results correct could be “life determining.”

Applications, as opposed to “appeals,” also serve a critical public function in insuring that those who qualify under our laws to remain in the U.S. are permitted to do so. That’s a “winner” for everyone.

The astronomical proposed fee increase is particularly absurd in the current context. EOIR is actually cutting corners and has reduced the quality and accuracy of its work product. Why should the public pay nearly 10X more for a rapidly deteriorating product?

Moreover, given the “captive” nature of the courts and the illegal and unethical interference in their operations by the Attorney General and other political operatives at the DOJ, the only chance at fair and impartial “justice” for many individuals is to petition the Article III Courts. That requires going through EOIR, even when EOIR’s biased and unfair adjudication procedures make the results inevitable. It’s called “required exhaustion of administrative remedies.”

Sure, folks can continue to seek “fee waivers.” But, I’ll bet that the procedures for those will become more bureaucratic and unduly restrictive, and that many will be improperly denied. How does someone with no money appeal a wrongful denial of a fee waiver? He or she can’t. They are denied justice!

That gets us to the real point here. In an era and an area of the law where “access to justice” is everything, this is another blatant attempt by the White Nationalist regime to restrict access to justice. In real world terms, the claimed cost savings (and we should never accept the regime’s often flawed and manipulated calculations) here are peanuts compared with the human interests at stake. The regime wastes more than this every week on unneeded and unauthorized walls that blow down in the wind and overpriced golf security for Trump.

As I said at the beginning, it’s outrageous.

PWS

02-28-20

3RD CIR. TO BIA ON PEREIRA: Tough Noogies, No Chevron Deference For You, Because Your En Banc Precedent Decision In Matter of Mendoza-Hernandez, 27 I&N Dec. 520 (BIA 2019) Is Dead Wrong! — Guadalupe v. U.S. Att’y Gen. — Dissenting BIA Judges Get Some Vindication!

3cirStopTimeopinion

Guadalupe v. U.S. Att’y Gen., 3rd Cir., 02-26-20, published

PANEL: RESTREPO, ROTH and FISHER, Circuit Judges

OPINION BY: Judge ROTH

KEY QUOTE:

It is our interpretation of Pereira that it establishes a bright-line rule:

A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a “notice to appear under section 1229(a),” and so does not trigger the stop-time rule.”14

The language is clear. Pereira holds that an NTA shall contain all the information set out in section 1229(a)(1). An NTA which omits the time and date of the hearing is defective. To file an effective NTA, the government cannot, in maybe four days or maybe four months, file a second – and possibly third – Notice with the missing information. And it makes sense to have such a bright-line rule: The ability of the noncitizen to receive and to keep track of the date and place of the hearing, along with the legal basis and cited acts to be addressed at the hearing, is infinitely easier if all that information is contained in a single document – as described in

blanks for time and place” but holding that this deficiency was not of jurisdictional significance); Perez-Sanchez v. United States Att’y Gen., 935 F.3d 1148, 1154 (11th Cir. 2019) (citing Ortiz-Santiago, 924 F.3d at 962) (“Under Pereira, . . . a notice of hearing sent later might be relevant to a harmlessness inquiry, but it does not render the original NTA non- deficient.”).

14 Pereira, 138 S. Ct. at 2113-14.

7

Case: 19-2239

Document: 67 Page: 8 Date Filed: 02/26/2020

15

Moreover, it seems to us to be no great imposition on the government to require it to communicate all that information to the noncitizen in one document. If a notice is sent to the noncitizen with only a portion of the statutorily required information, a valid NTA can easily be sent later which contains all the required information in one document – at such time as the government has gathered all that information together. The complete NTA would then trigger the stop-time rule.

The government argues, however, that the BIA’s

decision in Matter of Mendoza-Hernandez should be given

Chevron16 deference as a reasonable reading of an ambiguous

statute. There, the BIA relied on Pereira’s position that “the

fundamental purpose of notice is to convey essential

information to the alien, such that the notice creates a

reasonable expectation of the alien’s appearance at the removal

proceeding.” 17 The BIA determined that this purpose can be

served just as well by two or more documents as it could by

18

We conclude, however, that Chevron deference is

15 We do note that in Pereira the Court left “for another day whether a putative notice to appear that omits any of the other categories of information enumerated in § 1229(a)(1) triggers the stop-time rule.” 138 S. Ct. at 2113 n. 5.

16 Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

17 Matter of Mendoza-Hernandez, 27 I. & N. Dec. at 531.

18 Id.

the statute.

one.

8

Case: 19-2239 Document: 67 Page: 9 Date Filed: 02/26/2020

inapplicable here because we are not merely interpreting the

19

whether the Supreme Court’s decision in Pereira forecloses

stop-time rule.

our interpretation of the statute in Orozco-Velasquez.

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

What does it mean:

- In the 3rd Circuit, undocumented individuals who have been continuously physically present in the U.S. for at least 10 years prior to receiving a “Pereira-compliant” Notice to Appear” (“NTA”) are exempt from the “stop time” rule for non-lawful-permanent resident cancellation of removal.
- An “after the fact” Notice of Hearing from EOIR does NOT remedy the “Pereira-defect” in the NTA for purposes of the stop-time rule.
- Those whose cancellation of removal applications were improperly denied, or who were not given a chance to apply, because of the stop-time rule should be able to reopen their cases. This should add to the “Aimless Docket Reshuffling” and jack up the backlog some more, at least within the 3rd Cir.
- The 3rd Circuit covers Pennsylvania, New Jersey, and Delaware.
- This mess was largely self-inflicted by DHS & EOIR. They had many chances to remedy the “Pereira problem’ over the years, but chose not to do so.
- Meanwhile, we have a Circuit conflict. The 9th Circuit previously had rejected Mendoza-Hernandez in Lopez v. Barr, https://immigrationcourtside.com/2019/05/28/courts-as-bia-continues-to-squeeze-the-life-out-of-pereira-9th-circuit-finally-pushes-back-why-the-lost-art-of-bia-en-banc-review-dissent-is-so-essential-to-due-process/. However, that case was vacated and rehearing en banc was granted. As noted by the Third Circuit, the Sixth Circuit agreed with the BIA. So, wrong as it is, Mendoza-Hernandez will remain in effect except in the Third Circuit, unless and until other Circuits reject it.
- I would expect the DOJ to find a petition for rehearing in this case, as they did in the Ninth Circuit. That could result in the Third Circuit’s decision being put “on hold.”
- This split will eventually have to be resolved by the Supremes. But, that’s unlikely to happen until next year.
- Congratulations and much appreciation to the six BIA Appellate Immigration Judges, led by former Judge John Guendelsberger, who courageously dissented from the en banc decision in Mendoza-Hernandez:
  - Judge John Guendelsberger, author
  - Judge Charles Adkins-Blanch, Vice Chair
  - Judge Patricia Cole
  - Judge Edward Grant
  - Judge Michael J. Creppy
  - Judge Molly Kendall Clark
  - Perhaps not surprisingly, Judges Guendelsberger, Cole, & Kendall Clark have since retired from the BIA.
- Dissent remains important, if exceedingly rare at today’s BIA, where DOJ politicos and EOIR bureaucrats actively encourage “go along to get along,” pro-regime jurisprudence. Also, en banc decisions are disfavored at today’s BIA.

PWS

02-28-20

NDPA NEWS: Even In Times Of Systemic Dysfunction, Fairness, Scholarship, Timeliness, Respect, & Teamwork Among Conscientious Immigration Judges, Fair-Minded ICE Assistant Chief Counsel, & Caring, Well-Prepared Advocates From the NDPA Continue to Save Lives of the Most Vulnerable Among Us! — “I don’t know how much longer I’ll be alive, but my children will always thank you,” Says Critically Ill Respondent to Arlington Immigration Judge Cynthia S. Torg, Who Had Just Granted Her Asylum!

NDPA NEWS: Even In Times Of Systemic Dysfunction, Fairness, Scholarship, Timeliness, Respect, & Teamwork Among Conscientious Immigration Judges, Fair-Minded ICE Assistant Chief Counsel, & Caring, Well-Prepared Advocates From the NDPA Continue to Save Lives of the Most Vulnerable Among Us! — “I don’t know how much longer I’ll be alive, but my children will always thank you,” Says Critically Ill Respondent to Arlington Immigration Judge Cynthia S. Torg, Who Had Just Granted Her Asylum!

NDPA stalwart (and former Arlington Immigration Court Intern) Professor Paulina Vera reports:

Good afternoon,

The above is what our client said to Immigration Judge Cynthia S. Torg after she granted her asylum claim this afternoon. A-A-‘s husband was politically involved in their home country of Venezuela, actively protesting against Nicolas Maduro. Because of his political involvement, both A-A- and their 11-year-old son were targeted by security forces and threatened with their lives should the political opposition continue. Additionally, A-A- has been diagnosed with stage 4 breast cancer and feared that she would not be able to get medical treatments in her home country due to a shortage of medical supplies there.

After a 15 minute hearing, the Immigration Judge (IJ) agreed to grant relief, which the trial attorney did not oppose. Both the IJ and trial attorney commended student-attorney, Halima Nur, JD ‘20, for her preparation. The IJ commented that because of the amount of documentation and the legal arguments presented, she was able to issue a decision quickly. In addition to their 11-year-old son, the couple has a 1.5 year old son, who was born in the United States. With this grant, the family will remain together in the U.S.

Please join me in congratulating Halima Nur, JD ‘20, and Madeleine Delurey, JD ‘20, for all their hard work on the case.

Best,

—-
Paulina Vera, Esq.
Acting Director, GW Law Immigration Clinic (Academic Year 2019-2020)
Legal Associate, Immigration Clinic
Professorial Lecturer in Law

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

These are the moments that everyone, judges, lawyers, interpreters, respondents, families, “live for” in Immigration Court. It’s what “kept me going” for 13 years on the trial bench. “Building America, one case at a time,” I used to say!

Thanks for all that you and your students do for Due Process and our system of Justice, Paulina! Also, this isn’t the first time that Judge Torg’s name has come up in connection with saving lives in Immigration Court. https://immigrationcourtside.com/2018/11/28/heres-what-the-dishonest-scofflaw-officials-in-the-trump-administration-dont-want-you-to-know-many-who-escape-from-the-northern-triangle-are-in-fact-refugees-when-they-are-give/

This report also raises a point that I made in one of yesterday’s posts, echoed by my good friend retired Judge Gus Villageliu in his comments: Encouraging parties to work together to “pre-try” and bring well-documented “grant cases” forward on crowded dockets for short hearings is a great “judicial efficiency measure” that actually advances rather than inhibits, systemic Due Process and efficiency.https://immigrationcourtside.com/2020/02/24/killer-on-the-road-emboldened-by-the-complicity-of-the-roberts-court-gop-abdication-of-legislative-oversight-breakdown-of-democratic-institut/

It’s the “polar opposite” of the “haste makes waste gimmicks” that unqualified politicos and administrators who don’t handle regular dockets have forced on judges and parties in a system where “docket control” has effectively been disconnected from its proper objectives of achieving due process and fundamental fairness.

Unfortunately, as Miller and the restrictionists seek to farther skew the regulations to screw asylum seekers, just results like this are likely to be even harder to achieve. That means that more and more asylum applicants will have to appeal to the Article III Courts, flawed as they have become, for any chance whatsoever of achieving a fair and unbiased outcome. I also discussed this unhappy likely future development in my post at the preceding link.

Thanks again to Judge Torg, the ICE Assistant Chief Counsel, Paulina, and GW Clinic Student Attorneys Halima Nur, JD ‘20, and Madeleine Delurey, JD ‘20, for being inspiring examples of how the Immigration Court system could work to achieve “due process and fundamental fairness with efficiency” under “different management” and an “independent structure” in the future.

Due Process Forever!

PWS

02-27-20

GREAT KATE: Morrissey’s Moving Journalism Shows Human Side Of Why We Have Asylum Laws & How Trump Regime’s White Nationalist Abuses Are Diminishing All of Us!

https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.sandiegouniontribune.com%2Fnews%2Fimmigration%2Fstory%2F2020-02-24%2Fprotecting-the-worlds-most-vulnerable-what-it-takes-to-make-a-case-under-us-asylum-system&data=02%7C01%7Ckate.morrissey%40sduniontribune.com%7C14739620142c413da57508d7b98c07dd%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637181883385100274&sdata=IXPR1Yk3ojZwhVRaUvfE%2BjWfBIpJ1pf2If9RNril0Ao%3D&reserved=0

Kate Morrissey writes in the first of a multi-part series in the San Diego Union-Tribune:

Nicaraguan government attacks on pro-democracy protests left hundreds dead and tens of thousands living in exile. Bárbara is one of them.

By KATE MORRISSEY

FEB. 24, 2020 5:01 AM

Managua, NICARAGUA —

Bárbara never thought she would leave Nicaragua.

But early one morning, she kissed her sleeping son goodbye. She had spent the night watching him in his bed. It was almost his 10th birthday.

“Fue el peor momento de mi vida,” Bárbara said. It was the worst moment of my life.

It had been nearly a year since Bárbara had been left for dead outside her clothing store, a victim of the Nicaraguan government’s bloody campaign to silence pro-democracy protests that rose up in 2018.

She knew she had to flee, but she didn’t think she could protect her son on the notorious migrant trail. She wasn’t willing to risk him.

So the 29-year-old entrepreneur escaped north alone, putting herself at the mercy of the U.S. asylum system — a system meant to protect the world’s most vulnerable.

RETURNED: PART I

The first in an occasional series in which the Union-Tribune explores the asylum system through the eyes of people who experience it firsthand, with drastically different outcomes.

Para leer este reportaje en español, haga click aquí.

The San Diego Union-Tribune is not fully identifying Bárbara or many of the witnesses interviewed in Nicaragua because of the danger that the government might retaliate against them or their families.

Bárbara is in Tijuana, one of tens of thousands of people waiting for a chance to argue for protection in the United States, part of a changing wave of migration that the Trump administration has labeled a crisis.

She exists in a constant state of uncertainty, and she realizes now just how much she underestimated the challenges that still lie ahead.

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

For Kate’s full article including the “original formatting” and all of the great pictures and graphics accompanying it, click on the above link that will take you to the original article on the San Diego Union-Tribune website!

Thanks, Kate, for so beautifully capturing the “heart and soul” of the refugee experience and why the Trump regime’s intentionally cruel, illegal, immoral, and dehumanizing policies are undermining our humanity as a nation and everything we should stand for. These are human lives at stake, not “numbers,” “beds,” or “apprehensions.” Success is measured in lives saved, and fair treatment of all, not “numbers turned back” or how we can “discourage” or “deter” others from seeking refuge. Our legal system should be fair and impartial, not a “weaponized tool” for nativist immigration enforcement policies. Indeed, it supposedly is there too protect all of us against such political overreach and abuses.

Interestingly, there was a time in the past when the GOP and the Reagan Administration went out of its way to help and give refuge to those Nicaraguans fleeing the Sandinistas and Daniel Ortega. The Nicaraguan and Central American Relief Act (“NACARA”), one of the best, most effective, and most efficient pieces of immigration legislation ever passed, was a result of bipartisan support for providing permanent relief to Nicaraguans, El Salvadorans, and Guatemalans fleeing the mess in Central American that our Government played a significant role in creating. Some off those fleeing Cuba and Eastern Europe also were covered. Now, under the influence of Trump, neo-fascist Stephen Miller, and the rest of the White Nationalist nativist gang, this GOP-led regime simply turns its back on vulnerable refugees like Barbara, the human carnage resulting from Ortega’s misrule of Nicaragua.

Perhaps in the future, Kate will put it all together in a book. Hope so!

PWS

02-27-20

Case Name:	Sontos Diaz-Reynoso v. William Barr
Case Number:	18-72833
Document(s):	Document(s)

Due Process Forever; Complicity & Enabling Cruelty Never!

Related posts:

DUE PROCESS FOREVER!

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Due Process Forever; Clown Courts Never!

Related posts:

Related posts:

The Nightmare That Is Mexico’s Mental Health System

Due Process Forever; Billy Barr Never!

Related posts:

Related posts:

Related posts:

Due Process Forever!

Related posts:

Related posts: