"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
On Title 42, the Supreme Court rules for a partisan agenda
COVID-19 is no reason to shut out migrants. Yet it’s used as a political pretext.
By Erwin Chemerinsky
The Supreme Court’s ruling last week to keep in place a Trump-era immigration order can only be understood as five conservative justices advancing a conservative political agenda, in violation of clear legal rules.
Without giving reasons or any explanation, the court reversed lower court decisions that allowed the Biden administration to lift a restriction that prevents asylum seekers at the border from entering the country, imposed early during the COVID-19 pandemic.
The federal law — referred to as Title 42 — permits the Centers for Disease Control and Prevention to prohibit people from coming into the U.S. to avert the spread of a “communicable disease” present in a foreign country.
.. . .
In November, U.S. District Judge Emmet Sullivan, in Washington, D.C., found that the continued use of Title 42 was “arbitrary and capricious in violation of the Administrative Procedure Act.” He ruled that the expulsion policy was no longer justified based in light of the present state of the pandemic, which includes widely available vaccines, treatments and increased travel in the United States.
Nineteen states with Republican attorneys general, however, oppose that ruling and sought the right to appeal to the U.S. Court of Appeals for the District of Columbia Circuit. They were not parties to the lawsuit in the District Court and the law generally does not allow parties to get into a case for the first time at the appeals level. On Dec. 16, the federal Court of Appeals, following its well-established law, refused to allow the states to intervene. The states then sought Supreme Court review of that decision.
On Dec. 27, in Arizona vs. Mayorkas, the Supreme Court, in a 5-4 ruling, not only said that it would hear the states’ appeal, but that it would require that the Biden administration continue to use Title 42 to expel migrants.
The court’s action makes no sense for several reasons. Title 42 provides the government authority to close the borders only if a public health crisis involving a communicable disease requires it. No one in the litigation disputes that COVID no longer warrants restrictions on immigration.
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The states are intervening not because they believe that a continuing public health emergency requires Title 42, but because they want to use it as a pretext to close the borders.
In fact, in another case now pending on the Supreme Court’s docket — on whether the Biden administration’s student loan forgiveness program is justified as a response to the pandemic emergency — 12 of the states in the Title 42 case argued in their brief that “COVID-19 is now irrelevant to nearly all Americans.”
The Supreme Court’s order is senseless for another reason: The only issue before the court is whether the states can intervene in the case. It is not about whether the District Court erred in ending the use of Title 42 to expel migrants. Even if the states were allowed to join the case, they can’t plausibly make the case that COVID concerns still justify immigration expulsions at this point.
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The five conservative justices based their decision not on the purpose of Title 42, which is to stop the spread of a communicable disease, but on their partisan agreement with conservatives on immigration issues. We should expect better of the court than that.
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Read Dean Chemerinsky’s full article at the link. Having a High Court, with life tenure, where a majority of the Justices enter “senseless orders” — targeting some of the most vulnerable and abused in our society who also happen to be predominantly individuals of color — is in and of itself senseless — from a standpoint of preserving our democracy!
The action of the five GOP Supremes is beyond outrageous! The NDPA CAN turn this gross right-wing minority abuse of our judicial system around!Likely not in my lifetime!
But, you need to keep pushing Dems to pay attention to judicial appointments and start insisting on meaningful professional expertise in immigration and actual experience representing individuals in Immigration Court as a basic requirement to serve as a Justice. Also we need an Article I Immigration Court and NO MORE Attorneys General without proven “grass roots” immigration and human rights experience!
Immigration is “where the action is” on the fight to save American democracy! If tone-deaf and spineless Dem politicos keep “running” from the key issue in American law and society, perhaps it’s time for true liberals, progressives, and constitutional humanitarian realists to “run” from the Dem Party!
This Supreme farce also reinforces the disgraceful failure of Garland and the Dems to reform the “Supreme Court of Immigration” — the BIA — by replacing enforcement-tilted Trump holdovers with practical scholar, expert, progressive judges committed to realizing long-denied due process, fundamental fairness, and the best interpretations of immigration and refugee laws! Dems control an important Federal Appellate body and are too clueless and afraid to do the right thing — even with the rule of law, racial justice, and human lives on the line!
If these kids survive, what will they think about a rich nation that turned its back on the world’s most vulnerable in their hour of need? Creative Commons License
Originally published by LexisNexis Immigration Community on Oct. 18, 2016:
SAVING CHILD MIGRANTS WHILE SAVING OURSELVES
By Paul Wickham Schmidt
They cross deserts, rivers, and territories controlled by corrupt governments, violent gangs, and drug cartels. They pass through borders, foreign countries, different languages and dialects, and changing cultures.
I meet them on the final leg of their trip where we ride the elevator together. Wide-eyed toddlers in their best clothes, elementary school students with backpacks and shy smiles, worried parents or sponsors trying to look brave and confident. Sometimes I find them wandering the parking garage or looking confused in the sterile concourse. I tell them to follow me to the second floor, the home of the United States Immigration Court at Arlington, Virginia. “Don’t worry,” I say, “our court clerks and judges love children.”
Many will find justice in Arlington, particularly if they have a lawyer. Notwithstanding the expedited scheduling ordered by the Department of Justice, which controls the Immigration Courts, in Arlington the judges and staff reset cases as many times as necessary until lawyers are obtained. In my experience, retaining a pro bono lawyer in Immigration Court can be a lengthy process, taking at least six months under the best of circumstances. With legal aid organizations now overwhelmed, merely setting up intake screening interviews with needy individuals can take many months. Under such conditions, forcing already overworked court staff to drop everything to schedule initial court hearings for women and children within 90 days from the receipt of charging papers makes little, if any, sense.
Instead of scheduling the cases at a realistic rate that would promote representation at the initial hearing, the expedited scheduling forces otherwise avoidable resetting of cases until lawyers can be located, meet with their clients (often having to work through language and cultural barriers), and prepare their cases. While the judges in Arlington value representation over “haste makes waste” attempts to force unrepresented individuals through the system, not all Immigration Courts are like Arlington.
For example, according to the Transactional Records Clearinghouse at Syracuse University (“TRAC”), only 1% of represented juveniles and 11% of all juveniles in Arlington whose cases began in 2014, the height of the so-called “Southern Border Surge,” have received final orders of removal. By contrast, for the same group of juveniles in the Georgia Immigration Courts, 43% were ordered removed, and 52% of those were unrepresented.
Having a lawyer isn’t just important – it’s everything in Immigration Court. Generally, individuals who are represented by lawyers in their asylum cases succeed in remaining in the United States at an astounding rate of five times more than those who are unrepresented. For recently arrived women with children, the representation differential is simply off the charts: at least fourteen times higher for those who are represented, according to TRAC. Contrary to the well-publicized recent opinion of a supervisory Immigration Judge who does not preside over an active docket, most Immigration Judges who deal face-to-face with minor children agree that such children categorically are incompetent to represent themselves. Yet, indigent individuals, even children of tender years, have no right to an appointed lawyer in Immigration Court.
To date, most removal orders on the expedited docket are “in absentia,” meaning that the women and children were not actually present in court. In Immigration Court, hearing notices usually are served by regular U.S. Mail, rather than by certified mail or personal delivery. Given heavily overcrowded dockets and chronic understaffing, errors by the Department of Homeland Security (“DHS”) in providing addresses and mistakes by the Immigration Court in mailing these notices are common.
Consequently, claims by the Department of Justice and the DHS that women and children with removal orders being rounded up for deportation have received full due process ring hollow. Indeed a recent analysis by the American Immigration Council using the Immigration Court’s own data shows that children who are represented appear in court more than 95% of the time while those who are not represented appear approximately 33% of the time. Thus, concentrating on insuring representation for vulnerable individuals, instead of expediting their cases, would largely eliminate in absentia orders while promoting real, as opposed to cosmetic, due process. Moreover, as recently pointed out by an article in the New York Times, neither the DHS nor the Department of Justice can provide a rational explanation of why otherwise identically situated individuals have their cases “prioritized” or “deprioritized.”
Rather than working with overloaded charitable organizations and exhausted pro bono attorneys to schedule initial hearings at a reasonable pace, the Department of Justice orders that initial hearings in these cases be expedited. Then it spends countless hours and squanders taxpayer dollars in Federal Court defending its “right” to aggressively pursue removal of vulnerable unrepresented children to perhaps the most dangerous, corrupt, and lawless countries outside the Middle East: El Salvador, Guatemala, and Honduras. The Board of Immigration Appeals (“BIA”), the institution responsible for enforcing fairness and due process for all who come before our Immigration Courts, could issue precedent decisions to stop this legal travesty of accelerated priority scheduling for unrepresented children who need pro bono lawyers to proceed and succeed. But, it has failed to act.
The misguided prioritization of cases of recently arrived women, children, and families further compromises due process for others seeking justice in our Immigration Courts. Cases that have been awaiting final hearings for years are “orbited” to slots in the next decade. Families often are spread over several dockets, causing confusion and generating unnecessary paperwork. Unaccompanied
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children whose cases should initially be processed in a non-adversarial system are instead immediately thrust into court.
Euphemistically named “residential centers” — actually jails — wear down and discourage those, particularly women and children, seeking to exercise their rights under U.S. and international law to seek refuge from death and torture. Regardless of the arcane nuances of our asylum laws, most of the recent arrivals need and deserve protection from potential death, torture, rape, or other abuse at the hands of gangs, drug cartels, and corrupt government officials resulting from the breakdown of civil society in their home countries.
Not surprisingly, these “deterrent policies” have failed. Individuals fleeing so-called “Northern Triangle” countries of El Salvador, Guatemala, and Honduras have continued to arrive at a steady pace, while dockets in Immigration Court, including “priority cases,” have mushroomed, reaching an astonishing 500,000 plus according to recent TRAC reports (notwithstanding efforts to hire additional Immigration Judges). As reported recently by the Washington Post, private detention companies, operating under highly questionable government contracts, appear to be the only real beneficiaries of the current policies.
It doesn’t have to be this way. We could save lives and short-circuit both the inconsistencies and expenses of the current case-by-case protection system, while allowing a “return to normalcy” for most already overcrowded Immigration Court dockets by using statutory Temporary Protected Status (known as “TPS”) for natives of the Northern Triangle countries. Indeed, more than 270 organizations with broad based expertise in immigration matters, as well as many members of Congress, have requested that the Administration institute such a program.
The casualty toll from the uncontrolled armed violence plaguing the Northern Triangle trails only those from Syria, Afghanistan, and Iraq. TPS is a well- established humanitarian response to a country in crisis. Its recipients, after registration, are permitted to live and work here, but without any specific avenue for obtaining permanent residency or achieving citizenship. TPS has been extended among others to citizens of Syria and remains in effect for citizens of both Honduras who needed refuge from Hurricane Mitch in 1998 and El Salvador who needed refuge following earthquakes in 2001. Certainly, the disruption caused by a hurricane and earthquakes more than a decade ago pales in comparison with the very real and gruesome reality of rampant violence today in the Northern Triangle.
Regardless, we desperately need due-process reforms to allow the Immigration Court system to operate more fairly, efficiently, and effectively. Here are a few suggestions: place control of dockets in the local Immigration Judges, rather than bureaucrats in Washington, as is the case with most other court systems; work cooperatively with the private sector and the Government counsel to docket cases at a rate designed to maximize representation at the initial hearings; process unaccompanied children through the non-adversarial system before rather
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than after the institution of Immigration Court proceedings; end harmful and unnecessary detention of vulnerable families; settle ongoing litigation and redirect the talent and resources to developing an effective representation program for all vulnerable individuals; and make the BIA an effective appellate court that insures due process, fairness, uniformity and protection for all who come before our Immigration Courts.
Children are the future of our world. History deals harshly with societies that mistreat and fail to protect children and other vulnerable individuals. Sadly, our great country is betraying its values in its rush to “stem the tide.” It is time to demand an immigrant justice system that lives up to its vision of “guaranteeing due process and fairness for all.” Anything less is a continuing disgrace that will haunt us forever.
The children and families riding the elevator with me are willing to put their hopes and trust in the belief that they will be treated with justice, fairness, and decency by our country. The sole mission and promise of our Immigration Courts is due process for these vulnerable individuals. We are not delivering on that promise.
The author is a recently retired U.S. Immigration Judge who served at the U.S. Immigration Court in Arlington Virginia, and previously was Chairman and Member of the Board of Immigration Appeals. He also has served as Deputy General Counsel and Acting General Counsel of the former Immigration and Naturalization Service, a partner at two major law firms, and an adjunct professor at two law schools. His career in the field of immigration and refugee law spans 43 years. He has been a member of the Senior Executive Service in Administrations of both parties.
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Recently, NDPA stars have achieved important senior positions in the Congress, the judiciary, and the immigration bureaucracy. We will need many, many more in such positions to finally turn around the limping ship of state on human rights, immigration, racial justice, smart economics, and values-based practical leadership! In the end, it’s going to be up to the “newer generations” to overcome the mistakes of my generation and create a better America and a better world — one in which individual rights and human dignity are respected and everyone can achieve their fullest potential.
Here’s a New Year’s greeting from New York courtesy of Round Table leader, talented photographer, and proud new granddad, Hon. “Sir Jeffrey” Chase:
The Biden administration has long been saying that it wants to get rid of Title 42.
Why, then, has it been expanding use of this policy?
“Title 42” is shorthand for what is effectively an abuse of a public health authority to circumvent U.S. asylum laws. Beginning in March 2020, the Trump administration used an obscure public health statute to automatically expel migrants without allowing them to first apply for asylum, as is their right under U.S. law and international treaty;PresidentDonald Trump’s pretext was that these immigrants might spread covid-19.
Apparently, Trump considered covid a liberal media hoax except when useful for punishing foreigners.
Human rights advocates and public health experts alike criticized the policy as probably both illegal and lacking a credible epidemiological purpose. Whatever its intentions, it didn’t reduce stress at the border; instead, it increased attempted border crossings, as many people expelled without consequence or due process turned right around and tried again to enter the United States.
That is, if they weren’t kidnapped, tortured, raped or otherwise violently attacked first. This happened in more than 10,000 cases of expelled migrants, as documented by Human Rights First.
As a presidential candidate, Joe Biden pledged to restore the integrity of the asylum system. He promised that anyone qualifying for an asylum claim would “be admitted to the country through an orderly process.” As president, though, Biden dragged his feet in terminating Title 42. He finally agreed to end the program this past spring. But termination has since been delayed by complicated court rulings, which Biden officials seem to have fought only half-heartedly.
This week, the Supreme Court determined that Title 42 must remain in place at least until the court decides a related issue (probably in the coming months). Given the Biden administration’s claims of wanting to end Title 42, the president should theoretically be mad about the delay.
Instead, Biden officials seem to have seized the opportunity to make yet more immigrant groups subject to automatic expulsions. “The administration has taken the position in court that they can no longer justify keeping Title 42 in place, given the lack of any public health justification,” said Lee Gelernt of the American Civil Liberties Union, which is challenging the expulsion policy. “If you look at the administration’s actions, however, it’s clear they’re fine with Title 42 remaining in place.”
. . . .
Americans often complain that immigrants should come here “the right way,” but for many migrants, showing up at the border unannounced and turning themselves in is the only legal pathway available. If given options to come here that don’t require paying gangs and crossing deserts, people would gladly take them — which would in turn alleviate stress at the border.
To its credit, the Biden administration has taken baby steps on that last recommendation.
Its Uniting for Ukraine program, for instance, has vetted and “paroled in” more than 82,000 Ukrainians and their immediate relatives abroad, which has discouraged Ukrainians from showing up en masse at our southern border (as had been the case early in the war). A similar but much more restrictive program was created for Venezuelans, whose numbers are capped at 24,000; a parallel program is reportedly in the works for Cubans, Nicaraguans and Haitians.
But again, these additional legal pathways can be created while still upholding the ability to apply for asylum at our borders. That’s what U.S. law requires — and what Biden has, repeatedly, promised to do.
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Read Catherine’s full article at the link. “If you look at the administration’s actions, however, it’s clear they’re fine with Title 42 remaining in place.”So true! So outrageous!
Contrary to much of the blather from both parties, refugee and asylum laws are an integral part of our LEGAL immigration system — one that is now being grossly misapplied and under-utilized!
Creating additional legal avenues for immigration by legislation is by no means inconsistent with maintaining robust, well-functioning refugee and asylum programs!
There are lots and lots of improvements that the Biden Administration could and should have made to the legal refugee and asylum programs that already exist under the law! Indeed, I suggest that many of the bogus “gimmicks” and counterproductive, wasteful, unfair “deterrents” devised and implemented by the Biden Administration, including expanded use of Title 42, were in direct or indirect response to Garland’s failed Immigration Courts. Because they are backlogged, inefficient, and dysfunctional, bureaucrats and politicos dream up ways to evade them (as opposed to fixing them so they work)!
It’s all wrong! There are “tons” of cases rotting inGarland’s ever-expanding EOIR backlog that could be granted or otherwise disposed of with relative ease and without stomping on anyone’s due process rights! There are ways of providing proper notice, better scheduling, and a new system for initial adjudications of non-LPR cancellation cases that do NOT require legislation; just better leadership and personnel at DOJ, DHS, and the White House!
The lack of scholarly, progressive, due process oriented precedents and implementation of best judicial practices by the BIA cripples justice in both the Immigration Courts and the USCIS Asylum Offices, even extending to the Refugee Program and other forms of USCIS adjudication of benefits.
For example, the ridiculous, largely self-created, backlogs in USCIS work authorizations is at least partially fueled by never ending backlogs in Immigration Court. Also, bad judicial decisions at EOIR create large amounts of unnecessary litigation in the Article III Courts and promote inconsistencies by allowing too many important issues, including proper application of some of the BIA’s own precedents favorable to respondents, to be resolved by the Circuits.
The system is a godawful mess! Yet, Dems inCongress didn’t even consider pressing for long-overdue Article I legislation, already introduced by Chair Lofgren, as part of their “lame duck push.” Thus, a key part of the immigration and justice systems continues to flounder and fail in Garland’s DOJ!
The need for so-called “comprehensive immigration reform” does not in any way minimize the responsibility of the Biden Administration for failing to reform the leadership and bureaucracies at DOJ and DHS to produce fairer, more efficient, expert, professional results!
Some cowardly Dem politicos and many Biden officials “run” from the immigration issue; yet, addressing and fixing the parts they control, like EOIR, could well have given them success to tout during the mid-term campaign.
And, as many experts suggest, it might also have helped address labor shortages, inflation and improved the economy. Rather than just “holding off disaster,” by acting more boldly on immigration the Dems might even have maintained and expanded their political control by demonstrating both the competence to solve immigration problems, even without comprehensive legislation, and the benefits of a fair, efficient, functional immigration system to America as a whole.
With the GOP taking over the House, expect many Dems to continue bellyaching that “nothing can be done about immigration.” It’s not like they did much of anything when they controlled both Houses!
There are still things that can be done to make the system fairer, more efficient, and more responsive to the common needs of America. Progressives should not let Dem “naysayers” off the hook!
Jay Kuo American Author, Producer, CEO of The Social Edge PHOTO: FacebookSome righty judges get all the way to the Supremes while remaining indifferent to the wrongful suffering of humanity from their bad judging!y Photo by David R. Badger, Creative Commons
Time and again, the current Supreme Court has waded into what should be a political fight, using its broad power to effectively freeze or rewind the clock. In so doing, it has often locked in the worst possible outcome, then leveraged its busy and lengthy docket to unacceptably extend that outcome.
It did this with the Texas vigilante enforced abortion law, allowing a facially unconstitutional restriction to remain on the books and actively in place, effectively shutting down reproductive health services across the state. It did it again by staying lower federal court orders that had struck down unconstitutional racial gerrymanders in the South, permitting illegal maps to disenfranchise African American voters. That was at least four seats that should have been minority opportunity districts—enough to cost the Democrats the House majority. And on Tuesday, SCOTUS pulled this trick once more, this time leaving in place a draconian Trump-era pandemic immigration ban, broadly known as Title 42, that the Biden administration wanted gone and that a federal judge already had ordered lifted.
In so doing, the Court further revealed itself as precisely what it should not be: a political powerbroker and, as even conservative Justice Neil Gorsuch noted in dissent, a group of “policymakers of last resort.”
What’s the story behind Title 42, and how does this most recent ruling get things upside down? What will it mean for the thousands of desperate migrant families camped in dangerous conditions at the border? And what should we expect next from Congress and the White House? I explore these and some key takeaways from the decision.
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It is next-level hypocrisy that red state leaders, who during the pandemic eschewed all manner of basic preventative health measures at great cost to human life, should now champion a policy that cites the virus as the reason to expel millions of theoretical carriers. The idea that Mexico was somehow a greater vector for disease and infection than the red states of America is also both deeply cynical and plainly counterfactual.
From a policy standpoint, the notion that certain states can claim they would suffer special harm from the lifting of Title 42 and that this somehow gives them standing to stop the government in its tracks threatens to upend our entire federal system. In every policy decision by federal authorities there are winners and losers, from taxation to infrastructure spending to rules around land and water use. Immigration, and the states which allegedly are most affected by it, should receive no special dispensation or consideration. Giving these states a voice and standing in this instance sufficient to hamstring the government would be premised on nothing but the Court’s apparent political priorities, and not sound federal principles.
Finally, the crisis at the border truly requires a bipartisan political solution, but no comprehensive immigration reform bill has passed Congress since 1986. Today, the “problem” of immigration has become a useful political tool for Republicans around which to rally their base and with which to fundraise. Unsurprisingly then, they appear to have no real interest in actually trying to solve the problem through legislation. As Secretary Pete Buttigieg has observed, this will remain the case so long as the problem of immigration is more useful to them than the solution.
The upshot is, we likely will continue to see misery at our border and buses of migrants sent by governors Abbott of Texas and DeSantis of Florida dropped off in liberal bastions like Martha’s Vineyard or in front of Vice President’s Harris’s home in D.C. The Biden Administration will still continue to work quietly behind the scenes to lessen the impact of Title 42 and to argue in court for ending the policy. But whether SCOTUS will relinquish its de facto policymaking role to the proper branches of government remains unclear.
Jay Kuo is the CEO of The Social Edge, a digital publishing and social media company based in New York City. Jay is head of “Team Takei,” managing engagement with Star Trek legend George Takei’s 23 million Facebook, Instagram and Twitter followers. Jay is also the composer, lyricist and co-librettist for the Broadway musical Allegiance as well as the librettist on the Broadway-bound Indigo, the first musical to feature and star a teenage girl on the autism spectrum. Jay is also a two-time Tony-winning co-producer for the hit musical Hadestown and the critically acclaimed, epic play The Inheritance.
Apart from his Broadway and social media work, Jay is a published author, an avid political blogger, and a partner in Gaingels LLC, the nation’s largest private investment syndicate. While he worked as an attorney, Jay was an appellate litigator admitted to practice before the Ninth Circuit and U.S. Supreme Court.
Jay has served on the boards of the Northern California ACLU and the Bay Area Lawyers Individual Freedom, and he argued the first Ninth Circuit challenge to the military’s “Don’t Ask, Don’t Tell” policy. Jay currently serves on the national board of the Human Rights Campaign, the nation’s oldest and largest civil rights organization serving the LGBTQ+ community.
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Read Jay’s complete, very clear and understandable, analysis of the Title 42 charade at the link.
These ivory tower right wing zealots in robes exempt themselves from the human pain and suffering that their horrible judging causes. Judges are supposed to solve problems. This gang makes them worse!
Lets’ repeat it again: The idea that this “esoteric issue,” raised at the last second, by corrupt GOP AGs who aren’t even parties to this case, claiming largely phantom “harm” that pales in relation to the well-documented life-threatening harm suffered by legal asylum seekers every day, merits an indefinite stay that inflicts yet more unconscionable harm, even death, upon the most vulnerable among us, is as illegal as it is patently absurd.
That it was imposed by five judges on our highest Court, who are suppose to uphold our Constitution and individual rights against government overreach is something that should be of grave concern to all who believe in American democracy, particular future generations who will have to live with the shame and damage inflicted by these out of touch far-right jurists!
Better judges for a better America! Why should judges who have never participated in the “retail level of our justice system” — by representing individuals in our broken, biased, and dysfunctional Immigration Courts — be ensconced on our highest Court and given life or death power over persons they wrongfully treat as less than human and whose legal and human rights they so shamelessly deny?
The myths — or, rather, convenient lies — that some politicians keep circulating about the U.S.-Mexico border have resulted in another disappointing congressional session for immigration reform.
Instead of crafting much-needed solutions to address the fate of young immigrant “Dreamers,” the backlog of cases in immigration courts or any of the myriad problems caused by outdated immigration laws, policymakers spent most of their time wrangling over Title 42, a public health order invoked during the COVID-19 pandemic to manage border crossings.
Disinformation prevents policymakers from having honest discussions and enacting sensible solutions. The complex U.S.-Mexico border region is a confluence of cultural, social and economic communities whose problems need sophisticated solutions not easily summarized by sound bites. Yet many people continue to peddle misconceptions about the border and engage in partisan theater such as dispatching migrants to Vice President Kamala Harris’ home or creating a wasteful wall of shipping containers, as the Arizona governor has done.
The debate on immigration and border control is likely to intensify in early 2023, when the GOP takes control of the House. Though there’s little expectation of significant legislation in a divided Congress, the constant arrival of migrants at the border is sure to keep the topic in the news. Because it’s important to look beyond sound bites, we’re fact-checking the misconceptions about the U.S.-Mexico border you are likely to hear in the coming months.
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Read the complete editorial at the link.
The lies and myths are largely pushed by GOP nativist politicos, and some right wing activist Federal Judges, although disgracefully some Dems have adopted, enabled, or gone along with certain aspects of them.
NGOs, communities, and advocates are about the only ones acting with urgency on the truth of this solvable humanitarian crisis. In doing so, they too often face roadblocks or lack of competence, honesty, and urgency from government officials at all levels.
Migrant families have been used in political stunts this year. The governors for Texas and Arizona have sent them on buses to the District to make a statement, and in doing so, have treated people as the problem instead of the country’s immigration system, which doesn’t provide clear paths to citizenship for many. An estimated 11,000 migrants have been bused to the District, and while many have since left the region, hundreds alone remain in local hotels and shelters. Many of those are children.
A donated item dropped off at those hotels in recent days was one that a mom had been hoping to give her daughter — a toy kitchen.
Woods cried as she talked about the impact of that and the many other gifts that were received. The strangers who came together to help the families recognized the system is broken, not people, she said.
“They wanted to support people who have escaped trauma, climate crisis, gang violence and the most inhumane things possible to arrive here,” she said. It didn’t matter that they didn’t speak the same language or share the same experiences as those families, she said. “Everyone wanted to make sure they felt welcomed and had a good Christmas, and that’s the true spirit of Christmas.”
Here’s more on GOP political stunts with vulnerable humans as pawns from today’s WashPost:
Three buses full of migrants arrived at Vice President Harris’s residence in Washington from Texas on Christmas Eve amid bitingly cold weather, a mutual aid group said, the latest in an influx of newcomers sent to the Northeast by Southern states.
About 110 to 130 men, women and children got off the buses outside the Naval Observatory on Saturday night in 18-degree weather after a two-day journey from South Texas, according to the Migrant Solidarity Mutual Aid Network. On the coldest Christmas Eve day on record in the District, some migrants were bundled up in blankets as they were greeted by volunteers who had received word that Texas Gov. Greg Abbott (R) had sent the caravan.
Volunteers scrambled to meet the asylum seekers after the buses, which were scheduled to arrive in New York on Christmas Day, were rerouted due to the winter weather. In a hastily arranged welcoming, a church on Capitol Hill agreed to temporarily shelter the group while one of the mutual aid groups, SAMU First Response, arranged 150 breakfasts, lunches and dinners by the restaurant chain Sardis.
“D.C. continues to be welcoming,” the network’s core organizer, Amy Fischer, told The Washington Post. “Whether it’s Christmas Eve, whether it’s freezing cold outside or warm outside, we are always ready to welcome people with open arms and make sure they have a warm reception in this community.”
. . . .
In D.C., the buses had been arriving all week — three from Arizona, another three from Texas — so Tatiana Laborde knew it was going to be an “intense” time. But on Friday, Laborde — who is the managing director of SAMU First Response, one of the agencies along with the mayor’s office and the mutual aid network helping with the migrants — found out about the three rerouted buses. They were scheduled to arrive Sunday morning, Christmas Day.
But then there was another surprise — the buses, from Del Rio, Tex., got in early, parking near the vice president’s Naval Observatory residence on Christmas Eve.
That destination appears to have more political significance than logistical purpose: While other buses have stopped at Union Station, the Naval Observatory is not near any other transportation hubs. The vice president was in D.C. this weekend.
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While Biden Administration spokesperson Abdullah Hasan claimed that they were “willing to work with anyone,” the reality is quite different. The Biden Administration campaigned on the need to end the abusive, deadly Title 42 charade and restore order and the rule of law at the border. Yet, after two years they have accomplished little of substance in addressing this very predictable and urgent humanitarian situation.
The asylum system at both USCIS and EOIR remains a backlogged mess. Regulatory changes, some enacted over the strong objections of human rights legal experts, have failed to meaningfully improve the system.
The administrative legal precedents governing asylum are still unhelpful, often unrealistically restrictive, and frequently impede efficient granting of relief. Improvements for gender-based asylum seekers — directed in one of Biden’s first Executive Orders — are well over a year “overdue” and appear to have fallen off the “radar screen.”
The refugee system outside the U.S., which could have reduced asylum pressure, remains largely as broken and underutilized as the day Trumpleft office. Leadership and personnel changes at DHS and DOJ that should have been made early on were ignored by the Biden Administration.
Significantly, the Administration has neither taken a leadership role nor developed a coherent plan for the orderly, systematic, and rational resettlement of most asylum seekers away from border communities. This has left vulnerable individuals who are legally entitled to apply for asylum at the mercy of grandstanding GOP nativist governors.
It has also overtaxed and overwhelmed border communities and NGOs in “receiving localities” throughout the U.S. There has been no coordination of essential Immigration Court and Asylum Office notices and scheduling with the actual destinations of asylum seekers and with those available to support and represent them. In other words, the Administration has presided over an inexcusable, and unnecessary, mess!
Regardless of its merits, so-called “comprehensive immigration reform” clearly isn’t on the horizon. That means that it’s up to the elected officials — the Biden Administration — to make the current law work — without resorting to illegal and counterproductive gimmicks like Title 42 and “expedited dockets.” That means cutting the whining and finger pointing and getting to work governing and solving immigration problems!
That takes courage, boldness, expertise, human values, creativity, urgency, and competence — seven areas where the Biden Administration has been sorely lacking when it comes to immigration, human rights, and racial justice!
“Federal Reserve chief Jerome Powell showed last week that he’s thinking about how recent lower immigration has factored into the ongoing U.S. labor shortage, but he said it’s not appropriate for the Fed to call for increased legal immigration to help alleviate the shortage. Could his remarks, careful as they were, somehow move the needle on immigration policy? His comments came as one new bipartisan proposal for immigration reform flopped in Congress, and some analysts say they aren’t optimistic about progress on immigration next year in a divided Washington. Still, others see Powell’s remarks having a small effect. … Powell’s answer could be seen as part of a slow process that eventually results in long-awaited fixes to the U.S. immigration system, according to Stephen Yale-Loehr, a professor of immigration law at Cornell Law School. “To me, it’s like water dripping on a rock,” Yale-Loehr told MarketWatch in an interview. “A single drop of water, whether it’s from Fed Chairman Powell or somebody else, won’t make a difference by itself. But if enough drips of water from other people and other studies consistently show that immigration can help our labor shortages and improve our economy, then I hope that will move the needle so that Congress will seriously take up immigration reform in 2023.” … The Cornell professor also suggested that grassroots efforts eventually might end up spurring U.S. lawmakers to do more. “A lot of change happens from the ground up, rather than the top down — if you think about civil-rights legislation in the 60s, the Environmental Protection Act of 1970, the antiwar efforts,” he said. “It was because people really protested the existing framework that they forced Congress to make changes in those areas. And so too, I think that if more Americans stood up and said, ‘We need immigration reform,’ I think that that would help persuade Congress to actually put pen to paper and make some significant changes.””
What better place to start forcing some long overdue changes than by getting more NDPA “practical scholar/experts” onto the EOIR bench where lives are on the line every minute of every working day? There are lots of ways to do justice at the “retail level” despite, or perhaps because of, the indifference of those in charge!
Folks, approximately a decade ago, the asylum grant rate at EOIR exceeded 50%! When grants of withholding (many the result of the 1-year-bar on asylum) and CAT were added in, almost 2/3 of asylum applicants who got a merits determination received some form of legal protection!
The vast majority of these cases were not appealed to the BIA. Slowly, but steadily, the EOIR system “at the retail level” was committing to expertise, sound scholarship, due process, fundamental fairness, faithful application of the generous legal principles established in Cardoza, Mogharrabi, and the regulatory presumption of future future persecution based on past persecution.
For years, those precedents and that regulation were resisted by many EOIR judges who continued, in practice, to apply the higher “more likely than not” standard rejected in Cardoza. But, following a series of savagely critical reversals of EOIR asylum denials by the Courts of Appeals the ground started to shift toward a more generous, proper, and correct interpretation of asylum law. Notably, those Court of Appeals “roastings” came after AG John Ashcroft “purged” the BIA in 2003 of appellate judges who spoke out for a better legal interpretation of asylum laws — one that faithfully followed Cardoza, Mogharrabi, and international standards!
As I used to tell my Georgetown Law students, a quarter century after the Supremes’ landmark decision in INS v. Cardoza-Fonseca, establishing the generous “well-founded fear” standard for asylum (reasonable likelihood = 10% chance) and the BIA’s implementation of that standard in Matter of Mogharrabi (asylum can be granted even where it is significantly unlikely that persecution will occur) the more generous standard was actually achieving “traction” at EOIR!
The law hasn’t changed very much since 2012. But, the progress toward a “Cardoza/Mogharrabi compliant” interpretation and application of asylum law halted and regressed substantially during the last part of the Obama Administration and during the Trump era.
What did change, for the worse, was the attitude of politicos, who have seen the Immigration Courts as captive “tools” to deter asylum seekers and “send negative messages” rather than insuring that they function as due-process-oriented, independent, subject matter expert, courts of law. The qualifications of those selected as Immigration Judges were “watered down” to favor high-volume government prosecutorial experience over demonstrated expertise in immigration and asylum laws and “hands on” experience representing individuals before EOIR.
Not surprisingly, asylum grant rates dropped precipitously during the Trump years. Although they have rebounded some under Biden, they still remain below the 2012 levels. It’s certainly not that conditions have substantially “improved” in major “sending countries.” If anything, conditions are worse in most of those countries than in the years preceding 2012.
So, if the law hasn’t changed substantially and conditions haven’t improved, what has caused regression in asylum grant rates at EOIR? It comes down to poor judging, accompanied by inadequate training, too much emphasis on “churning the numbers over quality and correctness,” and a BIA that really doesn’t believe much in asylum law and lacks the expertise and commitment to consistently set and apply favorable precedents and end disgraceful inconsistencies and “asylum free zones” that continue to exist.
Some of the most disgraceful, intentional asylum misinterpretations by Sessions and Barr now have been reversed by Garland. Unfortunately, he failed to follow-up to insure that the correct standards are actually applied, particularly to recurring circumstances. It’s one of many reasons that the Biden Administration struggles to re-establish a fair and efficient legal asylum system at the Southern Border — notwithstanding having two years to address the problems!
But, it doesn’t have to be this way! Recently, a number of notable “practical scholar experts” have been appointed to the Immigration Judiciary. When such well-qualified jurists reach a “critical mass” in the expanding EOIR, systemic changes and improvements in practices and results will happen.
The “dialogue” among Immigration Judges from government backgrounds and those from the private/NGO sector will improve. Lives will be saved. Life-threatening inconsistencies and wasteful litigation to correct basic mistakes at all levels of EOIR will diminish. The EOIR system will resume movement toward the former noble, but now long abandoned, vision of “through teamwork and innovation, being the world’s best administrative tribunals, guaranteeing fairness and due process for all!”
So, warriors ⚔️🛡of the NDPA, make those applications for EOIR judgeships! Storm the tower from below! Make a difference in the lives of others and help save our democracy! If not YOU, then who?👩🏻⚖️👨🏽⚖️⚖️🗽🇺🇸
CROTONE, Italy — On a continent that has spent years trying to cut off undocumented immigration — using fences, surveillance, financial incentives and sometimes even brute force — the close-the-door strategy is faltering
Migration across the Mediterranean has crested to the highest level in five years. New nationalities, most notably from Egypt, have joined the stream of people seeking escape to Europe. And hard-line border policies are merely driving smugglers to adapt: Soon after Greek authorities instituted a practice of harsh pushbacks, boats departing Turkey began charting a longer route — bypassing Greece and heading instead to Italy’s Calabrian coast, an area that used to see almost no arrivals.
“Here comes another,” a law enforcement official at the port of Crotone said one recent morning, watching a vessel with 80 people come into view, just four hours after the arrival of a boat with 81 others.
The European Union’s desire to obstruct migration on multiple fronts was reflected in a collection of deals cobbled together in the aftermath of a 2015 mass-scale wave from Africa and the Middle East. And, for a while, the strategy appeared to be working: Mediterranean crossings dipped dramatically. The issue lost political primacy, depriving nationalist parties of kindling.
But an increase in arrivals this year is showing the limits of a Fortress Europe strategy — and reviving the highly contentious issue of how to handle and divvy up those who make it to the E.U. and its borderless travel zone.
“Europe’s expectations were based on a wrong assumption — that mobility across the Mediterranean could be stopped or limited, so it would no longer be politically relevant,” said Roberto Cortinovis, a migration specialist at the Center for European Policy Studies. “And that is impossible.”
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Some of the same things are happening here. Nativist/restrictionists, largely, but not exclusively, from the GOP, keep pushing failed “deterrence only” enforcement policies. And, the USG keeps “investing” in them despite decades of proven failure and deadly human results.
Ironically, today should have been the end of the illegal and abominable Title 42 charade. But, as with past fictional “deadlines” for termination, it didn’t happen.
Just to put Lee’s outrageous abuse of the law and human rights in perspective, remember that U.S. District Judge Emmet Sullivan recently concluded, on a voluminous record, that the use of Title 42 to deny migrants’ legal rights at the border was: 1) an illegal pretext from the beginning, and 2) causes “stomach churning” dire, irreparable harm, including rape, torture, and death, to legal asylum seekers. Essentially, nativist politicos like Lee are trying to force the Biden Administration to commit even more egregious human rights violations — on top of the hundreds of thousands, perhaps millions, they have already committed by enforcing Title 42 over the past two years.
While Lee’s scurrilous and totally misguided amendment is likely to fail, another almost equally bad one, sponsored by Sen. Sinema (I-AZ) to extend Title 42 indefinitely (till a “better plan” is in effect, which will never happen, particularly if the GOP has anything to say about it), is also up for a vote. “Lost in the shuffle” is the simple fact that we have existing laws that could and should be used to timely grant refugee to those legally qualified while expeditiously and summarily removing those with no credible claim. That the Biden Administration has failed to develop a viable plan for re-implementing existing law (which had been in effect for decades before being illegally abrogated by Trump) over the past two years should not be confused with impossibility!
Far from it, as many experts have pointed out, illegally “closing” ports of entry to asylum seekers has made unauthorized entry the “sole and exclusive” way for asylum seekers to exercise their rights! Yet, nativist politicos, the media, and even the Biden Administration ignore or mister present this truth.
As the International Organization on Migration has said, ““Migration is inevitable, necessary and desirable.” https://www.iom.int/news/migration-inevitable-necessary-and-desirable-opening-exhibition-iom-hague. It can be controlled and channeled with wise, realistic, and humane decisions. But, it won’t be stopped by walls, prisons, deportations, racist nationalistic rhetoric, militarization of borders, or cruel and inhumane laws and restrictionist policies.
Or, as I have said before, “We can diminish ourselves as a nation, but it won’t stop human migration.” Sure, the U.S. needs comprehensive, robust immigration reform that recognizes the inevitably and mutual benefits of human migration. But, particularly with a GOP House, it’s not on the horizon.
In the meantime, it is incumbent on the Biden Administration to make existing laws and policies work to timely, efficiently, and humanely screen refugees and asylum seekers at our borders. Those who qualify should be admitted in a reasonable period of time rather than aimlessly sent to wander the U.S. waiting for interviews from USCIS or hearings from EOIR that might never happen because of mismanagement and lack of vision in the current system. Those who don’t have credible claims should be subject to the summary removal procedures of the current law.
That the Biden Administration has, to date, lacked the competence, vision, and expertise to make the existing laws work in an acceptable manner is a shame. Ultimately, it’s one they won’t be able to “run away from” no matter how hard they try!
In addition to these five, two other recently appointed Immigration Judges had private practice experience in immigration before becoming Government attorneys.
Round Table maven (and VERY proud new grandfather 😎) “Sir Jeffrey” S. Chase gave a special “shout out” to Judge Gioia M. Maiellano, now of the NY Federal Plaza Immigration Court.
Gioia M. Maiellano, Immigration Judge, New York – Federal Plaza Immigration Court
Gioia M. Maiellano was appointed as an Immigration Judge to begin hearing cases in December 2022. Judge Maiellano earned a Bachelor of Science in 1994 from Fordham University and a Juris Doctor in 1998 from Brooklyn Law School. From 2021 to 2022, she was a solo practitioner handling immigration cases. From 2017 to 2021, she served as an Administrative Law Judge with the Department of Finance, City of New York. From 2015 to 2016, she served as an asylum officer with U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS). In 2015, prior to joining USCIS, she served as pro bono counsel for the Iraqi Refugee Assistance Project. From 2013 to 2015, she worked in private practice with the Law Office of Carmen DiAmore-Siah in Honolulu representing individuals before the immigration courts, the Board of Immigration Appeals, and USCIS. From 2003 to 2013, she served as an assistant chief counsel, U.S. Immigration and Customs Enforcement, DHS, in New York. In 2002, she worked with the Law Office of Amir Alishahi in New York. From 2000 to 2001, she served as a staff attorney with the European Roma Rights Center, in Budapest, Hungary. Prior to that, she served as a law clerk with the Office of the Prosecutor at the United Nations International Criminal Tribunal for the Former Yugoslavia in The Hague, The Netherlands. Judge Maiellano is a member of the New York State Bar.
As experts like my friends Judge Chase, Professor Debbie Anker, and LexisNexis Guru Dan Kowalski say, EOIR is an organization where positive change is more likely to “come from below than from above.” Unfortunately, that makes it a painfully slow process for those still suffering in the substandard conditions that Garland permits in his Immigration Courts.
Nevertheless, as more and more judges join the bench with recent experience actually working their way through this dysfunctional system to obtain justice for their clients, the resistance to mis-applying BIA and Circuit precedents favoring individuals will grow. Additionally, the legal standards will be correctly applied at the “first level,” unrealistic requirements on individuals and their lawyers will diminish, due process, fundamental fairness, and efficiency will advance, and the disgraceful anti-immigrant, anti-asylum, deny, deport, and deter “culture” at EOIR — actively promoted under Sessions and Barr — will diminish over time.
Moreover, when Article I eventually comes, a more diverse and better-qualified group of IJs likely will be initially “grandfathered.” That’s another reason why Garland’s “slow moving train” in improving the quality of EOIR Judges at all levels has been so totally frustrating.
Should have and could have happened over the past two years with better leadership and vision from Garland and his subordinates. But, given the dismal state of immigration institutions and policies over the past six years, I’ll treat anything that isn’t “bad news” as “good news!”
Click this link to listen to immigration law professor Craig Mousin’s podcast Lawful Assembly. He makes the case for not pitting demands for border security against immigration reform and justice for asylum seekers.
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Mousin explores how the claim for a fully secure border has stalled immigration reform for over three decades. He calls for comprehensive immigration reform to address many of the issues the failed policies of detention and deportation have been unable to resolve.
KJ
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Thanks Craig for speaking truth when so many are spreading false information and advocating trading human rights that aren’t ours to give away for “benefits” that should be conferred on their own merits with no “strings attached.”
Unhappily, even the normally reliable and sensible Greg Sargent @ WashPost is spouting some of this absolute nonsense! He speaks of indefinitely extending massive violations of legal and human rights (“Title 42”), prisons for asylum seekers (“processing centers”), and expedited dockets (“deportation railroads without due process”) as if they are “OK trade-offs” for so-called “immigration reform.”
Notably, there is nothing now stopping the Administration from processing more refugees outside the U.S., providing grants to innovative organizations like “VIISTA Villanova” for training more qualified pro bono asylum representatives without having to rely exclusively on law schools, replacing poorly qualified Asylum Officers and Immigration Judges with asylum and human rights experts, appointing a new expert BIA qualified to establish affirmative precedents to guide Asylum Officers, IJs, and lawyers on both sides in how to recognize, document, and grant asylum in accordance with the generous intent of the law and the U.N. Convention on which it is based, providing grants to NGOs for systemic resettlement of asylees and applicants away from the border, targeting and prosecutinghuman smugglers, and expeditiously removing those arriving at or near the border who can’t establish a “credible fear” of persecution.
That the Administration has failed to bring in the necessary visionary, dynamic, competent leadership to accomplish any of the foregoing, and thata Dem-controlled Congress has failed in its oversight responsibilities and to push the Administration to fulfill its legal obligations to asylum seekers is a question of competence and will, NOT the fault of asylum seekers and their advocates. Nor is it a basis to reduce the already unfairly and illegally compromised rights of asylum seekers
Craig basically echoes some of the themes I set forth this week in my “Dissenting Opinion!”
Michigan Stadium, America’s largest, holds 107,601. It would take approximately 20 Michigan Stadiums to hold all the 2,000,000 + folks waiting for hearings in Garland’s dysfunctional and backlogged Immigration Courts! And, that doesn’t include their families, communities, employers, co-workers and others affected by their fates! If Garland were the managing partner of a law firm or the CEO of a business, he would be “long gone.” Why aren’t competence and accountability “minimum requirements” for America’s chief lawyer? Michigan Stadium Photo by Andrew Horne, Creative Commons License
Even at this accelerated completion rate, on an annualized basis, I calculate thatEOIR will still be building backlog at a rate of nearly 300,000 annually, based on 800,000 new receipts from DHS.
At approximately 700 completions/year/judge (EOIR’s figure), EOIR would need approximately 400 additional, fully trained, fully productive IJs on the bench just to “break even” and stop creating more backlog.
Nearly 800,000 asylum cases are sitting in the backlog, many ready to try and pending for years. With a better BIA and better trained IJs who actually applied Cardoza-Fonseca, Mogharrabi, and the regulatory presumptions of well-founded fear properly (instead of being “programmed to deny”) the vast majority of these old asylum cases could be prioritized and granted in short hearings.
Even with today’s broken, biased, and unconstitutionally inconsistent Immigration Courts, migrants prevail against deportation in approximately 60% of cases! This suggests that the majority of the Immigration Court’s cases could be prioritized and resolved in the migrant’s favor without lengthy hearings IF the system had a better BIA, better IJs, better training, better practices, and a better working relationship with the private bar and DHS.
Far too few bonds are being granted, and insufficient attention is being paid to inconsistencies in the bond process.
Only an infinitesimally small percentage, .56%, of new cases filed by ICE involve allegations of criminal conduct. This suggests continuing problems with the way ICE allocates enforcement resources and chooses to use Immigration Court time.
Earlier this year, I had predicted that Garland would top the 2 million backlog mark by the end of August 2022.https://wp.me/p8eeJm-7dT
I was off by 3 months, as it actually took him until the end of November 2022 to achieve this negative landmark.
Nevertheless, some things are clear: This system is “beyond FUBAR!” It needs professional leadership, a new appellate board, better judges, better training, better utilization of the private bar, smarter, more creative and innovative practices, and authority to “rein in” in out of control ICE Enforcement. All the same things experts said were needed back at the time of Biden’s election! Ignoring expert advice has resulted in just the continuing, mushrooming disaster at EOIR and in our legal system that experts predicted!
Over two years, Garland has shown that he is not the person for the job. Nor have his political subordinates shown any aptitude for addressing the festering management, legal, and quality control problems @ EOIR!
Experts and advocates should be pushing the Administration and Dems in Congress for a change in leadership at the DOJ! Every day of failure means more backlog, more injustice, more frustration, more lives endangered, and a growing threat to American democracy — from those sworn to protect and uphold it, but aren’t getting the job done!
“Oscar Aguado-Cuevas, a Mexican national, petitions for review of the BIA’s decision affirming a denial of his application for relief under the Convention Against Torture. For the reasons below, we GRANT the petition, VACATE the BIA’s decision, and REMAND this case for further consideration of Aguado-Cuevas’s petition for CAT protection. … Aguado-Cuevas filed an application for relief under the Convention Against Torture (“CAT”), arguing that his uncles and cousins in Mexico were cartel members who would kill him if he returned. In September 2020, Aguado-Cuevas, his father, and an expert witness testified in support of Aguado-Cuevas’s CAT application. … Aguado-Cuevas signed a cooperation agreement and began cooperating with federal authorities. Aguado-Cuevas’s cooperation, including his agreement to testify against Adolfo Jr. and CJNG, was leaked to the media and publicized online. … [A]n expert witness testified that Aguado-Cuevas’s chances of potential risk or torture upon returning to Mexico were “[e]xtremely high to [a] near certainty” due to his informant and debtor status. … [T]he BIA erred by not applying the correct legal framework in which it must show that it meaningfully considered “relevant substantial evidence supporting the alien’s claims.” … Although we remand primarily for the BIA to reconsider the state involvement prong of the CAT analysis, we note that both parties acknowledge that the BIA’s likelihood of torture analysis suffers from similar deficiencies. Accordingly, to the extent that the BIA finds that Aguado-Cuevas has shown the requisite level of state involvement upon remand, we order the BIA to also consider the likelihood of torture prong under the proper legal framework. … Aguado-Cuevas claims that he will be murdered by CJNG as punishment for being an informant and debtor following his drug-related activities in the U.S. Concerning the likelihood of torture, Aguado-Cuevas argues—and the Government agrees—that the BIA should have more closely considered evidence of Aguado-Cuevas’s actions in the U.S. that could characterize him to CJNG as an informant and debtor. Specifically, the BIA did not properly consider evidence that (1) Aguado-Cuevas owed CJNG $120,000 after his botched deal; (2) Aguado-Cuevas was identified by the media as an informant in the prosecution of a CJNG member; (3) a text message identified Aguado-Cuevas as a potential target of the CJNG; (4) a residence where Aguado-Cuevas stayed was ransacked; and (5) CJNG routinely kills debtors and informants. Such evidence goes directly to Aguado-Cuevas’s arguments of likelihood of torture as an informant and debtor; such a theory hinges not on events in Mexico but on his actions in the U.S., making him a particular target for torture by CJNG. The BIA failed to properly consider these pieces of evidence. … The complete lack of discussion of the aforementioned evidence suggests that the BIA has not met this standard. As before, the BIA should remand to the IJ for additional factfinding if necessary.”
Many congrats and thanks Carla! There is an”epidemic” of botched CAT cases being “outed” by the Circuits. This one was so horribly mishandled, that even OIL couldn’t defend it!
Yet, the “downbeat goes on” as Garland feigns ignorance of the institutionalized injustice @ EOIR being carried out in his name! On his watch, the BIA has gone from “any reason to deny” to “no reason whatsoever for denying.”
Apparently, as long as the BIA staff attorney drafts the decision so the individual loses, it really doesn’t matter to the “signatory appellate judge” at the BIA what goes above the “bottom line.”
It’s a heck of a way to “run the railroad” 🚂 with human lives at stake and an ever growing, out of control, 2 million case backlog! After 2.5 years bouncing around the EOIR system, this particular case is headed back to the IJ in a never ending quest for competent judging, due process, and fundamental fairness. All three of the foregoing are elusive qualities at Garland’s EOIR!
Garland’sso-called “dedicated dockets” gimmick has been a total failure from a due process and fundamental fairness standpoint. See, e.g.,https://trac.syr.edu/reports/704.
The only “dedicated docket” that Garland REALLY needs at EOIR is one dedicated to getting the results right in the first instance! But, that readily achievable objective (althoughNOT without major, long over due personnel changes in “management,” the BIA, and among some IJs) appears of little interest to Garland or the Biden Administration. Thus, the latest Dem Administration appears content to let the dysfunctional EOIR system limp on spewing injustice, bad law, and insurmountable backlogs on its downward spiral!
Forgot to thank both of you for an amazing semester! This class has helped me not feel too down about law school and not judge my intelligence. I liked that both of you show the human side of law. Thank you for not only showing us that the subject is based on people, but also teaching in a way that showed you were approachable. I love that both of you know how to turn off the legal side and just talk to students about ordinary life, which has helped a lot in my ability to approach other professors. And, you both taught in a language that I can actually understand. Thanks again and I hope to have other professors like the two of you in the future!”
From a student in our Immigration Law I course. Thursday was the final class of the semester.
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This is one reason why the NDPA has been such a formidable force for due process and against Government human rights abuses and “bad law.”
It also shows why more and more immigration and immigration clinical professors are not only receiving tenure, but are “moving up the leadership ladder” at their institutions.
Immigration law teaching has been far, far ahead of the curve in teaching “law you can use” and practical skills that not only spell success in legal practice but in all aspects of life. One of these is taking complex subjects and breaking them down into understandable terms and pieces that make sense and relate to human experience.
🗽DISSENTING OPINION: TRADING AWAY REFUGEE RIGHTS & DUE PROCESS FOR LONG OVERDUE DREAMER PROTECTIONS IS “NOT OK!”
By Paul Wickham Schmidt
Courtside Exclusive
Dec. 6, 2022
I dissent.
I was outraged when I read in this morning’s Washington Post about the horrible “Sinema/Tillis misnamed immigration compromise” (actually a “sellout”) being negotiated during the lame duck session of Congress. In short, that proposal apparently would trade long overdue protection for “Dreamers” for the rights and lives of refugees and asylum seekers.
Incredibly, in the face of U.S. District Judge Emmet Sullivan’s findings that the intentional illegal use of Title 42 had resulted in countless clear violations of the legal rights of asylum seekers, subjecting them to a litany of horrors and abuses that he described as “dire harm,” these legislators would extend those abuses for an indefinite period! That’s notwithstanding evidence not only of the irreparable harm that Title 42 has caused, but also the rather obvious fact that once we “normalize” those abuses, they will never end.
There will always be another fabricated reason for extending the Title 42 charade. Indeed, once we start mischaracterizing abuse as “law,” we can’t even call it “abuse” and hold the abusers accountable! That’s all part of the dehumanizing or “Dred Scottification” process!
Additionally, in the place of a functioning working asylum and refugee system, the proposal would eventually substitute so called “processing centers” and “expedited procedures” to railroad asylum seekers out of the country without due process. And, it wouldn’t address the total dysfunction and denial of due process in our Immigration “Courts” by enacting another long overdue provision: the “Lofgren Article I Immigration court bill!” What a farce!
Let’s be clear about what’s happening here! The legal and human rights of refugees and asylum seekers are not “ours” to trade away for relief for another deserving group that has long been irrationally denied! “Processing centers” are a euphemism for “immigration prisons” — part of the “New American Gulag.” “Expedited processing” is a euphemism for “railroading.” Both detention and artificially expediting dockets have been proven to be ineffective and unjust, over and over. Yet, here we go again!
My outrage turned to shock and dismay when I learned that some erstwhile defenders of due process, human rights, and racial justice for asylum seekers (incredibly) thought that this type of immoral compromise was a “good idea!” Not me!
Restrictionist/nativist Dems masquerading as “moderates” are a huge problem. They play right into the GOP’s hands.
When committing crimes against humanity or giving away refugees’ rights becomes a “strategy,” “option,” or “bargaining chip,” we’re lost as a nation. And, that’s exactly where we’re heading with horrible, immoral proposals like this.
Human rights and due process are non-negotiable! And, I guarantee that extending Title 42, building additional Gulag (rather than making the existing legal asylum and refugee systems work), and railroading asylum seekers will empower smugglers and lead to further growth of our underground population.
Human migration won’t be stopped by ineffective and immoral “deterrence.” And, although many hate the idea, refugees basically “self-select” and are driven by forces beyond our immediate control.
Refugees are, by definition, folks who can’t return! So, there is no reason to believe that true refugees (of which there are many) are going to be “deterred.” They might be “incentivized” to seek refuge in particular, relatively safe, places; but, nobody seems interested in a “carrot” approach — even though the “stick approach” has failed and continues to do so!
Look at the folks who continue to die in vessels in the Mediterranean even though they are fully aware that they are unwanted and that the EU will stop at no cruelty to keep them out.
And, examine the wealth of documentation that folks forced to “remain in Mexico” — and apply under what we know to be a corrupt and inadequate system — are systematically abused and exploited.
This time, we’re not just “pushing the St. Louis out to sea.” We’re torpedoing her and watching the passengers drown. And Dems are a huge part of the problem!
Other (soon to be former) progressive Democrats might choose to “go along to get along” with heaping additional abuses on largely defenseless refugees and asylum seekers. But, not me! I dissent!
It’s been over 30 years since Congress enacted the most recent set of comprehensive immigration reforms: the Immigration Reform and Control Act of 1986 and the Immigration Act of 1990. These bipartisan yet hotly contested bills passed only after a debate spanning five presidential administrations, eight congressional sessions, and painful compromises by all parties. Even then, both bills died on the House floor before being resurrected at the 11th hour.
Can lessons learned during the last round of reform be applied to future debates? Charles Kamasaki, author of “Immigration Reform: The Corpse That Will Not Die” (Mandel Vilar Press, 2019), thinks so. The book provides a history of how the 1980s-era reforms were enacted, along with a summary of developments since then. It concludes with seven lessons that advocates and lawmakers should consider in advancing future immigration reform.
Join us for a discussion with Mr. Kamasaki, Cornell Law School professor Steve Yale-Loehr, and Wall Street Journal immigration reporter Michelle Hackman about the prospects for immigration reform legislation in 2023.
This webinar is cosponsored by the Cornell Migrations Initiative, the Cornell Law School Immigration Law and Policy Research Program, and Catholic Charities of Tompkins and Tioga Counties.
