"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.
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — According to the NYT, Biden immigration policy officials always shared this vision of “ultimate border deterrence” with Gauleiter Stephen Miller. Now, they are secretly relieved that Trump’s righty judges have “forced” them to continue running a lawless border and killing asylum seekers without legal process. EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
MATAMOROS, Mexico — When the Supreme Court effectively revived a cornerstone of Trump-era migration policy late last month, it looked like a major defeat for President Biden.
After all, Mr. Biden had condemned the policy — which requires asylum seekers to wait in Mexico — as “inhumane” and suspended it on his first day in office, part of an aggressive push to dismantle former President Donald J. Trump’s harshest migration policies.
But among some Biden officials, the Supreme Court’s order was quietly greeted with something other than dismay, current and former officials said: It brought some measure of relief.
Before that ruling, Mr. Biden’s steps to begin loosening the reins on migration had been quickly followed by a surge of people heading north, overwhelming the southwest border of the United States. Apprehensions of migrants hit a two-decade high in July, a trend officials fear will continue into the fall.
Concern had already been building inside the Biden administration that the speed of its immigration changes may have encouraged migrants to stream toward the United States, current and former officials said.
In fact, some Biden officials were already talking about reviving Mr. Trump’s policy in a limited way to deter migration, said the officials, who have worked on immigration policy but were not authorized to speak publicly about the administration’s internal debates on the issue. Then the Supreme Court order came, providing the Biden administration with the political cover to adopt the policy in some form without provoking as much ire from Democrats who reviled Mr. Trump’s border policies.
Now, the officials say, they have an opportunity to take a step back, come up with a more humane version of Mr. Trump’s policy and, they hope, reduce the enormous number of people arriving at the border.
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Read the rest of Natalie’s article at the link.
Who would have thought that neo-Nazi Stephen Miller would be the real winner of the 2020 election?
When he ”wins,” America and humanity “lose.” But, apparently that’s “A-OK” with some Biden Administration officials who lack the expertise, ability, courage, and political will to establish the rule of law for asylum seekers at our Southern Border! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com.
Five decades of experience, including plenty of wall and fence building, civil detention, expedited dockets, restrictive interpretations, criminal prosecutions, family detentions, toddlers without lawyers, money to corrupt foreign governments, “don’t come, we don’t want you and care nothing about your lives messages,” in English and Spanish, says the Biden version of the “Miller Lite” approach will fail and ultimately expand the extralegal population of the U.S.
Of course, it also will kill more desperate humans in the desert, in Mexico, in squalid “camps,” and back in their home countries. Just so long as it’s “out of sight, out of mind.” The great thing about desert deaths is that often the bodies are never found or identified. Therefore, nothing can be proved, and it’s like these people “never happened.” It’s a real bureaucratic triumph! Foreign deaths are almost as good, as they seldom get much “play” in U.S. media and always can be blamed on something other than failed U.S. policies or foreign interventions.
I’d already observed that the DOJ’s “defense” of undoing Trump immigration policies seemed as half-hearted as it was ineffective. Perhaps their lackadaisical approach came right from the top!
And, the “policy geniuses” in the Biden Administration who think “Miller-Lite Time” will be a political “happy hour” (at humanity’s expense) should remember that the right will still successfully label them as “open borders” just as they did when Obama established himself as “deporter-in-chief!”
Meanwhile, their former progressive supporters will see through the false humane rhetoric. Does it really matter if we call individuals “foreign nationals” rather than “illegals” while we’re illegally exterminating them?
I’m afraid we know the answer to “Casey’s question:” NO!
”Sorry, Casey! Not only can’t anyone in the Biden Administration ‘play this game,’ they don’t even have the guts to suit up! They view a ‘forfeit’ to “Team Miller” as good as a ‘W.’ Remember, it’s not THEIR family, friends, or relatives dying at our border. It’s just ‘the other guys,’ so who cares? When it comes to U.S. immigration policy, foreign nationals all too often find that their lives and human dignity are just another form of expendable political capital.” PHOTO: Rudi Rest Creative Commons
Torture? What torture? It’s merely “enhanced fact-finding!”
Public realm“They all want to voluntarily waive further hearings and take final orders!” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
The phrase appears in multiple 9/11 volumes, usually uttered by top officials adamant that they were going to get things done, laws and rules be damned. Anti-terrorism efforts were always “lawyered to death” during the Clinton administration, Tenet complains in “Bush at War,” Bob Woodward’s 2002 book on the debates among the president and his national security team. In an interview with Woodward, Bush drops the phrase amid the machospeak — “dead or alive,” “bring ’em on” and the like — that became typical of his anti-terrorism rhetoric. “I had to show the American people the resolve of a commander in chief that was going to do whatever it took to win,” Bush explains. “No yielding. No equivocation. No, you know, lawyering this thing to death.” In “Against All Enemies,” Clarke recalls the evening of Sept. 11, 2001, when Bush snapped at an official who suggested that international law looked askance at military force as a tool of revenge. “I don’t care what the international lawyers say, we are going to kick some ass,” the president retorted.
The message was unmistakable: The law is an obstacle to effective counterterrorism. Worrying about procedural niceties is passe in a 9/11 world, an annoying impediment to the essential work of ass-kicking.
Except, they did lawyer this thing to death. Instead of disregarding the law, the Bush administration enlisted it. “Beginning almost immediately after September 11, 2001, [Vice President Dick] Cheney saw to it that some of the sharpest and best-trained lawyers in the country, working in secret in the White House and the United States Department of Justice, came up with legal justifications for a vast expansion of the government’s power in waging war on terror,” Jane Mayer writes in “The Dark Side,” her relentless 2008 compilation of the arguments and machinations of government lawyers after the attacks. Through public declarations and secret memos, the administration sought to remove limits on the president’s conduct of warfare and to deny terrorism suspects the protections of the Geneva Conventions by redefining them as unlawful enemy combatants. Nothing, Mayer argues of the latter effort, “more directly cleared the way for torture than this.”
To comprehend what our government can justify in the name of national security, consider the torture memos themselves, authored by the Justice Department’s Office of Legal Counsel between 2002 and 2005 to green-light CIA interrogation methods for terrorism suspects. Tactics such as cramped confinement, sleep deprivation and waterboarding were rebranded as “enhanced interrogation techniques,” legally and linguistically contorted to avoid the label of torture. Though the techniques could be cruel and inhuman, the OLC acknowledged in an August 2002 memo, they would constitute torture only if they produced pain equivalent to organ failure or death, and if the individual inflicting such pain really really meant to do so: “Even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent.” It’s quite the sleight of hand, with torture moving from the body of the interrogated to the mind of the interrogator.
After devoting dozens of pages to the metaphysics of specific intent, the true meaning of “prolonged” mental harm or “imminent” death, and the elasticity of the Convention Against Torture, the memo concludes that none of it actually matters. Even if a particular interrogation method would cross some legal line, the relevant statute would be considered unconstitutional because it “impermissibly encroached” on the commander in chief’s authority to conduct warfare. Almost nowhere in these memos does the Justice Department curtail the power of the CIA to do as it pleases.
In fact, the OLC lawyers rely on assurances from the CIA itself to endorse such powers. In a second memo from August 2002, the lawyers ruminate on the use of cramped confinement boxes. “We have no information from the medical experts you have consulted that the limited duration for which the individual is kept in the boxes causes any substantial physical pain,” the memo states. Waterboarding likewise gets a pass. “You have informed us that this procedure does not inflict actual physical harm,” the memo states. “Based on your research . . . you do not anticipate that any prolonged mental harm would result from the use of the waterboard.”
You have informed us. Experts you have consulted. Based on your research. You do not anticipate. Such hand-washing words appear throughout the memos. The Justice Department relies on information provided by the CIA to reach its conclusions; the CIA then has the cover of the Justice Department to proceed with its interrogations. It’s a perfect circle of trust.
Yet the logic is itself tortured. In a May 2005 memo, the lawyers conclude that because no single technique inflicts “severe” pain amounting to torture, their combined use “would not be expected” to reach that level, either. As though embarrassed at such illogic, the memo attaches a triple-negative footnote: “We are not suggesting that combinations or repetitions of acts that do not individually cause severe physical pain could not result in severe physical pain.” Well, then, what exactly are you suggesting? Even when the OLC in 2004 officially withdrew its August 2002 memo following a public outcry and declared torture “abhorrent,” the lawyers added a footnote to the new memo assuring that they had reviewed the prior opinions on the treatment of detainees and “do not believe that any of their conclusions would be different under the standards set forth in this memorandum.”
In these documents, lawyers enable lawlessness. Another May 2005 memo concludes that, because the Convention Against Torture applies only to actions occurring under U.S. jurisdiction, the CIA’s creation of detention sites in other countries renders the convention “inapplicable.” Similarly, because the Eighth Amendment’s prohibition on cruel and unusual punishment is meant to protect people convicted of crimes, it should not apply to terrorism detainees — because they have not been officially convicted of anything. The lack of due process conveniently eliminates constitutional protections. In his introduction to “The Torture Memos: Rationalizing the Unthinkable,” David Cole describes the documents as “bad-faith lawyering,” which might be generous. It is another kind of lawyering to death, one in which the rule of law that the 9/11 Commission urged us to abide by becomes the victim.
Years later, the Senate Intelligence Committee would investigate the CIA’s post-9/11 interrogation program. Its massive report — the executive summary of which appeared as a 549-page book in 2014 — found that torture did not produce useful intelligence, that the interrogations were more brutal than the CIA let on, that the Justice Department did not independently verify the CIA’s information, and that the spy agency impeded oversight by Congress and the CIA inspector general. It explains that the CIA purported to oversee itself and, no surprise, that it deemed its interrogations effective and necessary, no matter the results. (If a detainee provided information, it meant the program worked; if he did not, it meant stricter applications of the techniques were needed; if still no information was forthcoming, the program had succeeded in proving he had none to give.)
“The CIA’s effectiveness representations were almost entirely inaccurate,” the Senate report concluded. It is one of the few lies of the war on terror unmasked by an official government investigation and public report, but just one of the many documented in the 9/11 literature.
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Sound painfully familiar? It should, to those of us “DOJ vets” who lived through this period. The use of the “third person,” “double and triple negatives,” “weasel words” like “you have given us to understand that,” “decision by committee” where a memo is routed through so many layers of bureaucracy that the original author or authors don’t even appear on its face — are all “devices” to diffuse and obscure responsibility and avoid clear accountability for controversial(and too often wrong) decisions!
During our time at the BIA, my fellow U.W. Badger, Judge Mike Heilman and I were often at odds on the law, particularly when it came to asylum. Anybody who doubts this should read Mike’s remarkable and famous (or infamous) “rabbi dissent” in Matter of H-, 21 I&N Dec. 337, 349 (BIA 1996) (Heilman, Board Member, dissenting). Nevertheless, one thing we agreed upon was requiring any decisions written for us to use the first person to reflect whose decision it actually was!
“Lawyers enable lawlessness.” How true! In 2002, DOJ lawyers (hand-chosen by the politicos) “tanked” and enabled, even encouraged, gross law violations by the CIA.
Fast forward to 2018. Then, White Nationalist AG Jeff Sessions exhorted his wholly-owned “judges” at EOIR not to treat DHS enforcement as a party before the court, but rather as a worthy “partner” in combatting the largely-fabricated “scourge” of illegal immigration (that actually, as we can now see, was propping up Trump’s economy). Is it surprising that precedent decisions by Sessions, Whitaker, and Barr favored DHS nearly 100% of the time and the BIA thereafter issued almost no precedents where the individual prevailed (not that there were many of those following “the Ashcroft purge,” even before Sessions)?
Asylum grant rates in Immigration Court tumbled precipitously, while both the trial, and particularly appellate, levels at EOIR were “packed” with judges whose main qualification appeared to be an expectation that they would churn out large numbers of removal orders without much analysis or consideration of the factors favoring the individual. Misogyny and anti-asylum, anti-private-lawyer attitudes (those “dirty lawyers”) were encouraged by Sessions as part the “culture” at EOIR, sometimes visibly rewarded by “elevation” to the BIA.
Interestingly, at the same time in 2002 that the group of DOJ attorneys was furiously working in secret to justify torture, in clear violation of the Convention Against Torture (“CAT”), another group in the DOJ, the BIA, was struggling to make the CAT work in “real world” litigated cases. A number of us dissented from the majority of our BIA colleagues’ wrong-headed and rather transparent attempt to “neuter” CAT protection from the outset. Unlike the “secret lawyers” at the DOJ, our work was public and had consequences not only for the humans involved, but for those of us who had the audacity to stand up for their rights under domestic and international law!
Here’s an excerpt from my long-forgotten dissenting opinion in Matter of J-E-, 22 I&N Dec. 291, 314-15 (BIA 2002) (Schmidt, Board Member, dissenting):
The majority concludes that the extreme mistreatment likely to befall this respondent in Haiti is not “torture,” but merely “cruel, inhuman or degrading treatment.” The majority further concludes that conduct defined as “torture” occurs in the Haitian detention system, but is not “likely” for this respondent. In short, the majority goes to great lengths to avoid applying the Convention Against Torture to this respondent.
We are in the early stages of the very difficult and thankless task of construing the Convention. Only time will tell whether the majority’s narrow reading of the torture definition and its highly technical approach to the standard of proof will be the long-term benchmarks for our country’s implementation of this international treaty.
Although I am certainly bound to follow and apply the majority’s constructions in all future cases, I do not believe that the majority adequately carries out the language or the purposes of the Convention and the implementing regulations. Therefore, I fear that we are failing to comply with our international obligations.
I conclude that the respondent is more likely than not to face officially sanctioned torture if returned to Haiti. Therefore, I would grant his application for deferral of removal under the Convention Against Torture and the implementing regulations. Consequently, I respectfully dissent.
Within a year of that decision, my dissenting colleagues and I were among those “purged” from the BIA by Ashcroft because of our views. I’d argue that EOIR has continued to go straight downhill since then, and is now in total free fall! Surely, any “facade” of quasi-judicial independence at the BIA has long-since crumbled. Yet, AG Garland pretends there is no problem. Garland’s apparent belief that this is still Judge Bell’s or Ben Civiletti’s or even Ed Levi’s DOJ is simply, demonstrably, wrong.
Today’s DOJ has been part and parcel of a highly inappropriate “weaponization” of the law and “Dred Scottification” directed against individual civil rights, migrants, voters, women, people of color, and a host of “others” who were on the far right “hit list” of the Trump kakistocracy. Nowhere has that been more evident than at the dysfunctional and institutionally biased EOIR. The problems plaguing American justice today have increased since 9-11. They will continue to fester and grow unless and until Garland faces reality and makes progressive leadership and judicial changes at EOIR to addresses the toxic culture of complicity and abusive use of the law to degrade individual and human rights. And, some real accountability at the rest of the badly-damaged DOJ should not be far behind.
REYNOSA, Mexico — When Joe Biden was running for president, he promised to close a squalid border tent camp in Mexico where thousands of migrants had been left to await the outcome of their immigration cases by the Trump administration.
Last spring, Biden emptied the camp, allowing most of the migrants to claim asylum and enter the U.S. even as his administration continued enforcing a Trump pandemic policy that effectively barred most other asylum seekers.
Soon after the Matamoros camp was bulldozed last March, a new camp formed about 55 miles west across from the border bridge to the more dangerous, Gulf crime cartel stronghold of Reynosa. Now that camp and another in Tijuana are home to thousands of asylum seekers, many with spouses and children in the U.S. They’re expected to grow after federal courts reinstated Trump’s so-called Remain in Mexico program last week, making it even harder for asylum seekers to enter the U.S. legally.
“We all thought this would get better when Biden got the presidency,” said Brendon Tucker, who works at the camp clinic run by the U.S.-based nonprofit Global Response Management, which also ran a clinic at the Matamoros camp.
Instead, he said, Biden’s pandemic ban on asylum claims, “is creating worse conditions in Mexico.”
About 2,000 migrants were living at the camp in Reynosa, Mexico, last week.(Molly Hennessy-Fiske / Los Angeles Times)
A White House spokesman declined to comment about the migrant camps, referring questions to the Department of Homeland Security.
Homeland Security said in a statement that, “This administration will continue to work closely with its interagency, foreign, and international organization partners to comply in good faith with the district court’s order [on Remain in Mexico] while continuing our work to build a safe, orderly, and humane immigration system that upholds our laws and values.”
In Reynosa, where about 2,000 migrants were living last week, conditions are in many ways worse than they were in Matamoros, Tucker said. There’s less potable water, fewer bathrooms, showers and other sanitation that U.S.-based nonprofits spent months installing in Matamoros. Mexican soldiers circle in trucks with guns mounted on top. Migrants face not only cartel extortion and kidnapping, but also COVID-19 outbreaks and pressure to leave from Mexican authorities. Fewer U.S. volunteers, including immigration lawyers, are willing to cross the border to help due to security concerns. Few at the camp understand their rights and U.S. pandemic restrictions, although they say they asked U.S. Customs and Border Protection agents about them before they were expelled.
“They didn’t tell us anything, they just left us here,” said Salvadoran migrant Emerita Alfaro Palacios, 34, who’s been living at the camp with her 17-year-old daughter Pamela since June, hoping to join her brother in Houston.
Migrants call the camp Plaza Las Americas, the name of the park it occupies. The first to arrive last spring holed up inside the central gazebo. Those who followed pitched tents outside, their warren of droopy tarps and clotheslines expanding daily. Gone were the mariachis who used to congregate in the park, in the shade of a dilapidated casino that still draws throngs on weekends. Last week, only the gazebo’s spindly roof was visible, like the center of an enormous, patched circus tent. Taxis and vendors still circled, selling fruit popsicles, tacos, pupusas and other dishes catering to hungry migrants, mostly Central Americans. Many said they came to the border hoping Biden would allow them to claim asylum. Some had seen reports about how he helped those at the camp in Matamoros.
Many Reynosa residents and officials consider the camp an eyesore.
Standing on the roof of a nearby building overlooking the camp last week, maintenance worker Hector Hernandez Garrido, 33, said it was the responsibility of the U.S. to accept the asylum seekers. He said he feared the camp was contaminated by COVID-19 and other diseases.
Two weeks ago, Reynosa authorities removed cook stoves from the camp kitchen, citing safety risks. They pressured U.S. volunteers to stop cordoning off a section of the camp for migrants who had tested positive for COVID-19, and have threatened to cut the camp’s electricity and water supply.
“They want us out,” said Gina Maricela, a Honduran single mother and nurse at the GRM clinic.
It’s not clear where the migrants would go. Last month, Reynosa officials also launched a legal battle to demolish the city’s primary nonprofit migrant shelter, already home to hundreds, arguing it lies in a floodplain. Felicia Rangel-Samponaro, who has been crossing the border daily to help migrants at the Reynosa camp through her nonprofit Sidewalk School, said they rented a 20-room hotel for those who are COVID-positive to quarantine. They may build a new camp, she said, but that would take weeks and cost tens of thousands of dollars.
“It’s exactly like Matamoros, but with less support,” Rangel-Samponaro said. “Cut what you like, that’s not going to stop the encampment.”
As in Matamoros and other border cities in the surrounding Tamaulipas state, it’s not city officials or even migrants who ultimately control the plaza — it’s the cartel. Migrants who enter or leave the city without paying a smuggler risk getting kidnapped and held for ransom. So do those who leave the camp, even for a few hours to shop or look for work.
Honduran migrant Lesly Pineda, a factory worker, said she and her 11-year-old son Joan were kidnapped with eight other migrants in July and released only after she paid a $2,000 ransom. A single mother, Pineda, 33, then took her son to the border and sent him across the Rio Grande with a smuggler. He remained at a federal shelter in Texas last week, she said. She had left her two oldest children, ages 15 and 14, with her mother in Honduras.
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“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — Will U.S. policy makers ever get beyond this jaundiced view of the “proper place” for asylum seekers in modern society? So far, despite Biden’s and Harris’s campaign rhetoric, the “reality on the ground” (or “in the river,” as the case might be) has remained disturbingly unchanged! EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Read Molly’s full report at the link.
The Trump kakistocracy considered the legal asylum system to be a “loophole” in their White Nationalist agenda. So, they just overtly violated the law. Thanks to an indulgent “Dred Scott” Supremes’ majority, they largely got away with it!
The Biden Administration considers complying with asylum laws, due process, and the rule of law, essentially a “political option” that they are working on (slowly, and incompetently).
In the meantime, they simply continue the Trump Administration’s illegal policies. Because, hey, it’s not real humans whose rights, lives, and humanity are being stomped upon here. Just “foreign nationals” and mostly “people of color” at that. Let ‘em continue to twist in the wind, while the Administration gets its act together. That’s particularly convenient if it’s happeningsouth of the border where, except for a few courageous folks like Molly and some NGOs and religious workers, the human trauma is largely “out of sight out of mind.”
If all else fails, we can always blame Trump. Like Trump, Biden has largely ceded control of southern border policies and migration from Latin America to cartels, smugglers, and traffickers. When the legal system fails, the underground and the black market take over.
I don’t think that there is any doubt that restoring the legal asylum system and actually, for perhaps the first time,administering it fairly, lawfully, generously, and with competent expert Asylum Officers and Immigration Judges (“new blood” required) would result in a substantial number of border arrivals being granted legal asylum or other forms of protection.
We’d actually be able to screen individuals, know who we have admitted, where they are going, have them in possession of legal work authorization, in a position to pay taxes, and in many cases have them on a path to eventual full integration into our society. And, by all legitimate accounts, after four years of Trump’s legal immigration disaster and a falling birth rate, we certainly can use more legal immigration.
Instead of looking at asylum seekers as a self-defined “problem,” why not look at saving them and integrating their skills and undoubted courage, energy, and perseverance into our society in a constructive manner as an “opportunity?” Because, that’s exactly what it is!
Human migration will continue, as it always has been, to be a major force in the 21st Century. “Smart money” is on the countries that best learn how to adapt and take advantage of its realities and embrace its opportunities as the “winners of the future.”
Given a fair, functional, generous system, many asylum seekers would be motivated to apply in an orderly fashion at ports of entry, or even abroad (if we actually had a robust functioning refugee program for Latin America, which we don’t). With an honest system that treats them fairly, listens carefully, and provides reasoned understandable decisions, even those who don’t qualify would be more likely to accept the result and consider constructive alternatives.
If the U.S. stepped up, fulfilled our legal obligations, and set a good example, other countries in a position to accept refugees and asylum seekers might also be motivated to improve their performance.
But, what we’re doing right now to those we falsely promised to treat fairly won’t be swept under the carpet forever. Historians are likely to highlight the cowardly abrogation of our legal duties to refugees and asylum seekers, by Administrations of both parties, as alow point in the American story.
“A federal judge declared unlawful the U.S. government’s turnbacks of asylum seekers arriving at ports of entry along the U.S southern border. The court ruled that the United States is required by law to inspect and process asylum seekers when they present themselves at ports of entry, and condemned the practice of denying access to the asylum process through metering and similar practices.
The decision came after oral arguments were held before U.S. District Judge Cynthia Bashant of the Southern District of California on Tuesday.
The case, Al Otro Lado v. Mayorkas, was brought 4 years ago by Al Otro Lado and a group of 13 individuals seeking asylum in the United States whom U.S. Customs and Border Protection turned back. The Center for Constitutional Rights, Southern Poverty Law Center, American Immigration Council, and the law firm Mayer Brown challenged the policy.
Nicole Ramos, Border Rights Project Director of Al Otro Lado, said, “After over four years, a U.S. federal court concluded what our team at Al Otro Lado has known all along, that CBP’s turning away of asylum seekers from ports of entry and metering are illegal and violate the rights of the individuals and families most in need of our protection. Despite DHS’s lies about their capacity to process asylum seekers, the reasons behind why metering exists, and the agency’s destruction of evidence in the case, today the rule of law and justice prevail.”
Baher Azmy, Legal Director of the Center for Constitutional Rights, said, “This is such an important victory for our heroic partners at Al Otro Lado, who have fought for asylum seekers for years against every variation of government lie, denial, and abuse of power. The decision will protect thousands of vulnerable people at the border.”
Melissa Crow, Senior Supervising Attorney with the Southern Poverty Law Center, said, “This decision affirms what people fleeing persecution and immigrant rights advocates have argued for years: the U.S. government’s denial of access to the asylum process at ports of entry is blatantly illegal. The Court properly recognized the extensive human costs of metering, including the high risk of assault, disappearance, and death, when CBP officers flout their duty to inspect and process asylum seekers and instead force them to wait in Mexico.”
“Turning back asylum seekers at ports of entry unconstitutionally stripped people of their right under U.S. law to access the asylum process in the United States. Ports of entry are a critical part of our nation’s asylum system and serve as the front door for arriving asylum seekers. Today’s decision underscores that the government may not simply shut that door and deny asylum seekers this right. The law protects asylum seekers arriving at our doorstep as it does those who stepped over the threshold. CBP must inspect and process arriving asylum seekers,” said Karolina Walters, senior attorney at American Immigration Council.
“Today’s decision is not just a victory for justice and the rule of law, it takes a significant step towards ending a troubling chapter in our nation’s history,” said Stephen Medlock, a partner at Mayer Brown LLP. “Under the turnback policy that was at issue in this case, the very government officials that should have been welcoming and assisting victims of persecution and torture were told to turn them away from the United States. The district court found that to be unequivocally illegal.”
Maria Frausto at the American Immigration Council, mfrausto@immcouncil.org or 202-507-7526; Marion Steinfels at SPLC, marion.steinfels@splcenter.org or 202-557-0430; Jen Nessel, Center for Constitutional Rights, 212-614-6449, jnessel@ccrjustice.org; Melissa Flores, Al Otro Lado, melissa@alotrolado.org, 213-444-6081.”
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Not surprisingly to those of us who understand the system, this illegal, inane, and unnecessary policy instituted by the Trump kakistocracy and inexplicably continued under Biden has fueled illegal entries, as we effectively gave asylum seekers no legal avenue to make their applications.
As noted above, the Trump Administration also lied to the court and the public about the justification for the program, which clearly was fabricated.
But, to be fair, the Biden Administration has done little to re-establish the rule of law for asylum seekers at the Southern Border. Obviously, this case demands a long overdue investigation into the DOJ attorneys who handled and defended the indefensible, and the misconduct of those attorneys and CBP officials in hiding or destroying evidence and creating bogus scenarios to “justify” their illegal actions. But, don’t hold your breath for Garland, who seems largely indifferent to misconduct at the DOJ or anywhere else in Government, to take any action.
Legal asylum seekers suffer severe consequences for the Government’s concerted attack on their legal rights and humanity. The “perps on our payroll” — not so much. No wonder our legal system is in free fall!
It isn’t clear to me how this case interacts with Biden’s continuation of Title 42 which illegally bars many asylum seekers from pursuing their claims in any manner. There are exceptions, but they appear to be somewhat arbitrary and depend mostly on what CBP feels like doing on any particular day.
For those allowed to pursue claims in the U.S., the Biden Administration still doesn’t have a functioning way of promptly and fairly determining their cases. “Dedicated Dockets” at EOIR are just another “designed to fail” gimmick, almost certain to increase backlogs without promoting fairness and efficiency.
That which would make the asylum system functional for all — immediate EOIR reform, including new progressive leadership, a progressive BIA, much better asylum precedents, some progressive IJs well-qualified to handle asylum cases fairly and efficiently (e.g., getting them right initially, insisting that Asylum Officers do likewise, and cracking down on frivolous behavior by DHS in Immigration Court, rather than the haste makes waste “any reason to deny culture” that drives EOIR’s incredibly poor and inept performance on asylum cases today) and working agreements with the private bar for representation and reasonable scheduling — has been of little visible interest to Garland and his lieutenants to date.
With Congress more or less living on another planet, that’s likely to leave reshaping the asylum system to the Federal Courts. There, as this case shows, there is still a smattering of Article III Judges committed to due process and the rule of law for asylum seekers. But, there are now enough right wing extremists put on the bench by the GOP to make it highly likely that any hard won progressive judicial reforms will eventually be undone.
The one place where progressive reforms could actually take place, and be made to endure, at least for the balance of this Administration — EOIR — has been mishandled by Garland to date.
What an awful, disgraceful mess — with no viable plans for improvement on the horizon!
Proposed asylum regulation changes that rely heavily on a currently broken, dysfunctional, non-expert EOIR to protect the rights of asylum seekers — after years of intentionally bashing them on behalf of their nativist overlords — is an obvious non-starter that fails to “pass the straight face test” as those who actually are condemned to practice before EOIR know all to well. Of course, the regulatory proposal wasn’t drafted by those actually familiar with the human trauma of litigating asylum cases at EOIR.
Ah, Casey, “why can’t anyone out there in ‘Bidenland’ play this game?”
“Casey Stengel might understand Judge Garland. The rest of us not so much.” PHOTO: Rudi Reit Creative Commons
These two op-eds make compelling cases for the 5th Circuit rivaling the Supremes as the most scofflaw, out of control, and dangerous court in America! But, hey, is there a “dark horse” in this righty “race to the bottom?” 🐴 (Curiously enough, “owned” and “trained” by Biden-Garland Stables!)
First, let’s hear from my friend, NDPA Stalwart, Houston Law Immigration Clinic Director, Professor Geoffrey Hoffman:
Professor Geoffrey Hoffman Immigraton Clinic Director University of Houston Law Center
CAT a “dead letter” in the Fifth Circuit? I respectfully dissent
By Geoffrey A. Hoffman
This week a panel of the Fifth Circuit issued Tabora Gutierrez v. Garland, interpreting the Convention Against Torture’s (CAT’s) state action requirement so restrictively that it led the dissenting judge to call CAT a virtual “dead letter” in most cases (in the Fifth Circuit, at least).
In this piece, I want to consider this dire prognostication and also think about what it may mean for future practice – at least for those of us in the Fifth Circuit.
Two panel members found that petitioner failed a key requirement for relief: that the government in Honduras “consented or acquiesced” to the torture. In dissent, Judge W. Eugene Davis remarked, “I agree with the IJ, the BIA, and the majority that [petitioner] will likely be tortured by MS-13 gang members. . .[but] I read the record to compel a conclusion that the torture will be with the acquiescence of a public official.” According to Judge Davis, the majority raised the bar so high regarding this requirement under CAT that “for most if not all” people CAT will be out of reach, if they are from countries with (merely) corrupt policy or police without the will or courage to protect them from brutal gangs. While I agree with Judge Davis, the fact is CAT need not be a “dead letter” in the Fifth Circuit.
I was moved to comment on another split panel decision previously in the Fifth Circuit in Inestroza-Antonelli v. Barr, see my prior post here, and I am similarly moved to write about this present decision.
Significantly, the majority here carefully acknowledges up front that the BIA and IJ below found petitioner “likely to be tortured or killed” if returned to Honduras, and even catalogued the horrible injuries he had already suffered, mentioning “gruesome photos” that are part of the record in the case.
Because I think the majority erred, and would agree with most of what the dissenting judge says, let me address three issues where I think the majority got it wrong: (1) what it means for a record to “compel” a different conclusion on appeal; (2) what it means for a government to consent or acquiesce to torture and (3) the notion that Petitioner waived his argument about the correct standard of review merely by failing to bring it up in a motion to reconsider.
I address all three of these points below.
First, the majority importantly conceded in its opinion that the police “failed to investigate” petitioner’s injuries. However, because the Board and IJ interpreted these “failures” of the police as “better explained” by the fact the petitioner “was unable to disclose the specific identity of any of his attackers” this showed the police did not “willfully ignore” the attacks. The majority reasoned that the “evidence” did not “compel” a contrary conclusion and therefore the IJ’s findings, adopted by the BIA, were considered “conclusive.”
I am struck here by the notion that just because the BIA and IJ had inserted their own explanations for the unrebutted record evidence showing lack of any police action that this must have meant (according to the majority) that the appellate court was constrained to accept this explanation and would not disturb the lower tribunal’s interpretation of the evidence.
Such a reading of the word “compel” means that judges can have an “out” anytime they want to rubber stamp any decision of the Board, all they have to do is say the explanation offered characterizing the evidence in one way or another was good enough and must not be disturbed. But this is a very troubling proposition.
Take, for example, the present case where the supposition on the part of the BIA and IJ was that the petitioner was somehow at fault for not being able to identify his attackers by name. Think about that for a minute…Police are not acquiescing and not at fault and should not be held to have “turned a blind eye” because the victim was unable to identify his attackers.
But this does not make sense.
Such a blame-the-victim mentality goes against the motivation and underlying rationale behind other federal types of relief immigrants have available, for example, U visas for crime victims, VAWA, T visas, etc., premised in many cases on the victim’s cooperation with law enforcement and their investigation. Just because a victim does not know the exact identities of their attackers does not disqualify them from relief. Would that be a reasonable interpretation for example of the U visa statute and attendant regulations?
In addition, let’s consider the use of the “compel” standard for a minute and where it came from exactly. This standard, as acknowledged by the majority, comes from a previous case, Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006), among other cases. Chen in turn cites 8 USC 1252(b)(4)(B) and emanates from the Supreme Court’s famous decision, INS v. Elias-Zacarias, 502 U.S. 478 (1992), authored by Justice Scalia.
Chen was a case about a Chinese petitioner who converted to Christianity after entry into the U.S. and so her applications did not rely on past persecution but a well-founded fear of future persecution based on religion. The IJ in the former case found that there were “many Christians in China” and that Chen’s claims of future persecution were allegedly “highly speculative.” The facts of Chen and the current case relating to police inaction in Honduras could not be further apart. Moreover, the Fifth Circuit in Chen was not considering past persecution, as here, but the more difficult to prove “future persecution” and well-founded fear standard.
Similarly, Justice Scalia in Elias-Zacarias was concerned about proof supporting a political opinion claim. In that case, the Supreme Court found that the petitioner could not produce evidence “so compelling” that no reasonable factfinder could fail to find the requisite fear of persecution on account of political opinion. The “so compelling” language has been used by many courts to deny asylum on many other grounds throughout the past decades and has not been limited to political opinion claims.
But the reliance in the present case for the “compel” standard on the statute in question, 8 USC 1252(b) here is misguided. The statute states in pertinent part as follows: “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary . . . .” But the “consent and acquiescence” determination under CAT is not a determination of “administrative facts” but is certainly a mixed question of law and fact. As such, the entire structure of the “compel” standard should not have been applied but instead de novo review applied.
And this brings me to the practice pointer that this case so unfortunately stands for. Although on appeal before the circuit court the issue of standard of review was raised by petitioner, it was rejected by the majority on the theory that he had to have filed a “motion to reconsider” before the Board to preserve the issue for appellate review.
This waiver argument has always seemed to me a weak and tenuous one.
For example, what if the petitioner (i.e., the respondent before the BIA) argued in his brief to the Board that the correct standard of review was de novo due to the mixed question raised by a very complicated “consent or acquiescence” determination under CAT, and courts have so held, but the BIA decided to just rubber stamp the IJ and refused to overturn the IJ’s finding based on clear error. Wouldn’t that have preserved the issue? Why is there a need for a litigant to then file a motion to reconsider after the fact to preserve an issue which had already been preserved? To make matters worse it appears Mr. Tobora Gutierrez appeared pro se, see page 3 of the Fifth Circuit majority decision, at least initially. The decision does not reveal if he had appellate counsel before the BIA. But if he did not it would be an especially onerous requirement to impose an “after the fact” requirement that a litigant must file a “motion to reconsider” to preserve an issue for appellate review, especially if he is unrepresented.
All of that said, the practice take-away here is: (1) everyone must file a very carefully drafted and thorough motion to reconsider on all issues that could be in any way (mis-)interpreted to be subject to waiver so you preserve all issues for review before the circuit courts; and (2) everyone should read Judge Davis’ cogent and reasoned dissenting opinion, which hopefully will be followed instead of the majority’s strained application of the “compel” standard. Judge Davis was right: the evidence does compel a different outcome. Judge Davis does a wonderful job also of distinguishing the prior case law in this area and showing how Mr. Tobora Gutierrez’s case is fundamentally different. As he says, “if the egregious facts of this case are not sufficient to support a finding of public-official acquiescence, CAT relief will be a dead-letter to most if not all individuals who live in countries where the police are corrupt or simply do not have the will or courage to protect them from brutal gang attacks.”
Judge Davis is right, this is a most troubling decision but not just for the reason he provides. It is troubling for the further reason that the majority applies the wrong legal standard here, the “compels” standard versus a de novo review. The majority also leaves the door open for “deferred action,” for this sympathetic and horrendous case, although it declines to recommend it. Most importantly, it also leaves the door open for de novo review, in future cases, at least where those litigants are perceived to have preserved the issue. Litigants can do this by filing a motion to reconsider with the BIA, then filing (another, second) petition for review when the motion to reconsider is denied, and then (following the procedure mandated by section 1252) consolidating the two cases.
(Institution for identification only)
Geoffrey Hoffman
Clinical Professor, UHLC Immigration Clinic Director
Let’s not forget that Garland’s DOJ defended this grotesque miscarriage of justice. In a grim way, Geoffrey’s “practical scholarship” ties in nicely with Ruth Marcus’s recent op-ed in WashPost on the righto-wacko 5th Circuit’s dangerous assault on American justice:
Washington Post Columnist Ruth Marcus, moderates a panel discussion about chronic poverty with Education Secretary John B. King (blue tie) and Agriculture Secretary Tom Vilsack (striped tie), during the National Association of Counties (NACo), at the Washington Marriott Wardman Park, in Washington, DC, on Tuesday, Feb. 23, 2016. U.S. Department of Agriculture photo by Lance Cheung.
Opinion: The 5th Circuit is staking out a claim to be America’s most dangerous court
Opinion by Ruth Marcus
August 31 at 6:37 PM ET
The Supreme Court is, no doubt, the nation’s most powerful court. But the 5th Circuit, the federal appeals court that covers Louisiana, Mississippi and Texas, is staking out a claim to be the most dangerous — the least wedded to respecting precedent or following an orderly judicial process.
The 5th is arguably the most conservative among the country’s dozen appeals courts. It inclined in that direction even before President Donald Trump managed to install six nominees. And they constitute quite a bunch: Stuart Kyle Duncan, who said the Supreme Court’s 2015 ruling establishing a right to same-sex marriage “imperils civic peace” and “raises a question about the legitimacy of the court.” Cory Wilson, who tweeted about Hillary Clinton using the hashtag #CrookedHillary, called the Affordable Care Act “illegitimate” and said he supported overturning Roe v. Wade. James C. Ho, who issued a concurring opinion lamenting the “moral tragedy of abortion.”
How conservative is the court, where 12 of 17 active judges were named by Republican presidents? “As conservative a federal appeals court as any of us have seen in our lifetimes,” says Stephen I. Vladeck, a law professor at the University of Texas, noting that even as the circuit’s conservatives tend toward the extreme end of the spectrum, its liberals aren’t all that liberal.
One measure: During each of the last two Supreme Court terms, with conservative justices firmly in the majority, the high court has reviewed seven cases from the 5th Circuit. It reversed 6 of 7 decisions in the 2019-2020 term and 5 of 7 in 2020-2021.
These included the appeals courts’ rulings striking down the Affordable Care Act and upholding the constitutionality of a Louisiana abortion law, identical to a Texas statute the justices had tossed out several years earlier — another 5th Circuit special reversed by the high court. If you thought the appeals court judges would have learned their lesson the first time, you don’t know the 5th Circuit.
Texas can ban the abortion procedure most commonly used to end second-trimester pregnancies, a federal appeals court ruled on Aug. 18. (Reuters)
The circuit’s latest shenanigans involve, unsurprisingly, abortion, and Texas’s latest attempt to eviscerate abortion rights. This Texas law, which goes into effect Wednesday, is both blatantly unconstitutional (it purports to prohibit abortion once there is a detectable fetal heartbeat, around six weeks into pregnancy) and an audacious effort to evade judicial review (it leaves enforcement of the ban up to private vigilantes, not state officials.)
In this effort to end-run and effectively overturn Roe v. Wade, the 5th Circuit has already proved itself an eager co-conspirator. Texas abortion clinics filed suit in federal court challenging the law and seeking to block it from taking effect. A federal judge had scheduled a hearing on whether to grant such an injunction.
But on Friday a panel of the 5th Circuit — two Trump judges and one Reagan appointee — issued an extraordinary order preventing the district judge from going ahead with the hearing, thus letting the law take effect in the interim — all this even as the appeals court refused to speed up its consideration of the case. In a sign of their desperation, the clinics appealed that action to the Supreme Court, not exactly a friendly venue these days for abortion rights.
. . . .
Read the rest of Ruth’s op-ed at the link.
But, the right-controlled Supremes aren’t going quietly into the night in this competition. The right to a reasoned decision from a fair and impartial decision-maker is fundamental to Constitutional due process — except at the Supremes. The righty majority now employs the “shadow docket” to avoid explanation and accountability for some of it’s most outrageously scofflaw decisions! Many of these have hurt or even killed migrants. David Leonhardt @ NY Times explains:
Davide Leonhardt Journalist NY Times PHOTO: Wikipedia
This one came out shortly before midnight on Wednesday. It consisted of a single paragraph, not signed by the justices who voted for it and lacking the usual detailed explanation of their reasoning. And there had been no oral arguments, during which opposing lawyers could have made their cases and answered questions from the justices.
Instead, the opinion was part of something that has become known as “the shadow docket.” In the shadow docket, the court makes decisions quickly, without the usual written briefings, oral arguments or signed opinions. In recent years, the shadow docket has become a much larger part of the Supreme Court’s work.
Shadow-docket rulings have shaped policy on voting rights, climate change, birth control, Covid-19 restrictions and more. Last month, the justices issued shadow decisions forcing the Biden administration to end its eviction moratorium and to reinstate a Trump administration immigration policy. “The cases affect us at least as much as high-profile cases we devote so much attention to,” Stephen Vladeck, a University of Texas law professor, told me.
Shadow-docket cases are frequently those with urgency — such as a voting case that must be decided in the final weeks before an election. As a result, the justices don’t always have time to solicit briefs, hold oral arguments and spend months grappling with their decision. Doing so can risk irreparable harm to one side in the case.
For these reasons, nobody questions the need for the court to issue some expedited, bare-bones rulings. But many legal experts are worried about how big the shadow docket has grown, including in cases that the Supreme Court could have decided in a more traditional way.
“Shadow docket orders were once a tool the court used to dispense with unremarkable and legally unambiguous matters,” Moira Donegan wrote in The Guardian. “In recent years the court has largely dispensed with any meaningful application of the irreparable harm standard.”
Why the shadow docket has grown
Why have the justices expanded the shadow docket?
In part, it is a response to a newfound willingness by lower courts to issue decisions that apply to the entire country, as my colleague Charlie Savage explains. By acting quickly, the Supreme Court can retain its dominant role.
But there is also a political angle. Shadow-docket cases can let the court act quickly and also shield individual justices from criticism: In the latest abortion case, there is no signed opinion for legal scholars to pick apart, and no single justice is personally associated with the virtual end of legal abortion in Texas. The only reason that the public knows the precise vote — 5 to 4 — is that the four justices in the minority each chose to release a signed dissent.
Critics argue that judges in a democracy owe the public more transparency. “This idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about,” Nicholas Stephanopoulos, a Harvard law professor, has said. “If courts don’t have to defend their decisions, then they’re just acts of will, of power.”
During a House hearing on the shadow docket in February, members of both parties criticized its growth. “Knowing why the justices selected certain cases, how each of them voted, and their reasoning is indispensable to the public’s trust in the court’s integrity,” Representative Henry Johnson Jr., a Georgia Democrat, said. Representative Louie Gohmert, a Texas Republican, said, “I am a big fan of judges and justices making clear who’s making the decision, and I would welcome reforms that required that.”
The shadow docket also leaves lower-court judges unsure about what exactly the Supreme Court has decided and how to decide similar cases they later hear. “Because the lower-court judges don’t know why the Supreme Court does what it does, they sometimes divide sharply when forced to interpret the court’s nonpronouncements,” writes William Baude, a University of Chicago law professor and former clerk for Chief Justice John Roberts. Baude coined the term “shadow docket.”
Six vs. three
The court’s six Republican-appointed justices are driving the growth of the shadow docket, and it is consistent with their overall approach to the law. They are often (though not always) willing to be aggressive, overturning longstanding precedents, in campaign finance, election law, business regulation and other areas. The shadow docket expands their ability to shape American society.
The three Democratic-appointed justices, for their part, have grown frustrated by the trend. In her dissent this week, Justice Elena Kagan wrote, “The majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.” In an interview with my colleague Adam Liptak last week, Justice Stephen Breyer said: “I can’t say never decide a shadow-docket thing. … But be careful.”
Roberts also evidently disagrees with the use of the shadow docket in the Texas abortion case. In his dissent, joining the three liberal justices, he said the court could instead have blocked the Texas law while it made its way through the courts. That the court chose another path means that abortion is now all but illegal in the nation’s second-largest state.
The justices are likely to settle the question in a more lasting way next year. They will hear oral arguments this fall in a Mississippi abortion case — the more traditional kind, outside the shadows — and a decision is likely by June.
Read more from David in “The Morning” e-mail from the NYT.
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Abrogating a treaty, intellectual dishonesty, neutering Federal statutes and regulations, scoffing at Constitutional due process, disregarding decency and human life (at least “life after birth”), AND illegally sending another human back to be tortured to death is indeed a “hard act to follow” and makes the 5th a serious contender. But, remember where this “opportunity to dump on migrants” came from!
Immigration practitioners will tell you never to underestimate the sloppiness, lack of expertise, irresponsibility, disdain for due process, and disregard for human lives that has become institutionalized at Garland’s “Miller Lite” captive appeals “court,” the BIA! And, like the Supremes and unlike the 5th Circuit, the BIA has nationwide jurisdiction and sets national precedents. But, unlike the Supremes, who decide fewer than 100 cases in an average year, the BIA assembly line charms out 20,000 to 30,000 cases annually through its defective processes, and it’s lousy, one-sided, anti-immigrant precedents and reactionary guidance that destroy thousands of lives and futures in Immigration Court every day!
So, when it comes to worst court of today, don’t count out the BIA!
Charlotte Klein Staff Writer Vanity Fair PHOTO: Twitter
The “Commanding Generals” of this effort are unprincipled, far-right GOP jurists. Their initial targeted victims are, of course, the usual vulnerable suspects: migrants, asylum seekers, women, voters of color, transgender kids, the poor, union members, etc. But, eventually, all of us who reman true to liberal democratic values will be targeted for some kind of punishment. Immigration “led the way” in the “Dred Scottfication of the other” by the Supremes at the behest of the Trump kakistocracy. But, don’t think that’s where this heinous resuscitation of one of the worst cases in American jurisprudence will end!
Meanwhile, this latest phase of the assault has unleashed the usual Dem arsenal of feckless weaponry, including:
Statements of outrage untied to realistic possibilities;
Largely meaningless public demonstrations that are “media events” and not much else;
Idle threats of reprisals;
A barrage of op-eds decrying that the fringe radical right and their relatively unpopular agenda has once again outflanked liberals who represent the views and values of the majority;
Statements of fact that have no material effect (public support for the complete elimination of abortion, al la Texas, the 5th, and the Supremes holds steady at 8%, while a large majority of Americans favor abortion in some form or another — explain how that has made a difference — also, does anybody really think that these right wingers give a fig that many women will die from illegal abortions and others will be saddled with unwanted children — the only part of human life that creates much compassion or empathy for this righty gang is that which occurs prior to birth);
Appeals to precedent, fairness, decency, reasonableness, confirmation promises, and respect for the law addressed to a party and its jurists who value none of these things if they get in the way of their authoritarian agenda.
But, Dems, here’s a better idea! For once, why not try a different approach and actually work within what you DO control and CAN change? Something that will showcase the positive attributes of honest, expert, progressive judging while developing best practices and saving lots of lives in the process. What do you have to lose, Dems? Can actually doing something to combat right-wing control of the judiciary rather than just impotently raging against it produce a worse result than you have already achieved — even when controlling the Executive, House, and Senate?
There is not much in the immediate future that Biden and the Dems can (and are willing to) do to change the composition and tenor of the Supremes and the 5th Circuit. But Biden and Garland have complete control over the “Miller Lite” BIA and the Immigration Courts!
A new, well-qualified, BIA comprised of progressive expert judges unswervingly committed to scholarship, quality, due process, respect for migrants and their attorneys, and correct results could (and should) be installed by now. But, disgracefully, it isn’t! Progressives need to hold Biden’s and Garland’s feet to the fire until they create the positive change they promised, but have not delivered!
Then, once a new BIA is in place, go to work on re-competing all Immigration Judge jobs on a merit basis, incorporating key progressive values and real-life experiences, and also involving input from practitioners and outside experts in the area. Create a better progressive Federal Immigration Judiciary and let it lead the way to restoring due process, best practices, efficiency, humanity, fundamental fairness, and integrity to our broken immigration system!
Humanity is suffering! Garland must pull the plug 🔌 on the “BIA Clown Show” 🤡 before it kills ⚰️ anyone else! Pull the BIA from the “Most Dangerous Court In America Competition” before they can “win” it. A “win” for the BIA would certainly be a “loss” for America!
Immigration Courts are the “living, breathing repudiation” of racial justice in America!🏴☠️
Repeatedly, Federal Courts at all levels say that foreign nationals are entitled to due process under the Fifth Amendment.
Then, they often go on to convert that to an insulting platitude by approving legal travesties and substandard performance by EOIR inflicted on migrants of color, their attorneys (if any), and their communities. Maybe, it’lls because talented Hispanic judges with actual experience representing asylum seekers and other migrants in Immigration Court are so few and far between. Maybe it’s because Garland has failed to actively recruit judges from among immigration and human rights attorneys of color and has continued to employ a flawed “insider-tilted” selection process that was designed and implemented to “slam the door” on experts from the non-governmental advocacy and academic communities.
Whatever the reason, EOIR has become the “living refutation” of the assertion that Hispanics and other communities of color are treated fairly and equally under our laws and that that race-based decision-making and jurisprudence have vanished from our legal system.
Maybe it’s time for Hispanics and their allies to stop being “tolerant of inequity and bias” and start taking a more aggressive and less compromising position on Garland’s disgraceful, disorderly, dysfunctional, non-diverse, tone-deaf Immigration Courts! Your voices are NOT being heard by those running the Star Chambers and cranking out “assembly line injustice.”
Why does the Hispanic community put up with being demeaned, dehumanized, and degraded by Garland’s “Clown Courts”🤡 and also by a Democratic Party that promised change but has delivered “same old same old” at EOIR?
Recent Supreme Court mockeries of justice show that the rights of minorities are under assault by a radically right-wing Article III Judiciary stocked with GOP appointees. The Immigration Courts, by contrast, are under the total control of the Administration and present an unparalleled opportunity for minority communities to both showcase their judicial skills and to start winning back their legal rights after four years of unrelenting assault by the White Nationalist right.
Why is this perhaps once-in-a lifetime opportunity for long overdue, radical reform of a broken, biased, and incompetent system being squandered and buried by Garland as if Stephen Miller and his cronies were still calling the shots? How many Hispanic and other lives will be sacrificed to EOIR over the next three plus years? How many attorneys of color will continue to be abused, misused, and under-appreciated by an Administration pledged to “do better?” What will be left of racial justice in America if entrusted to a DOJ that doesn’t even believe in the concept in their own court system?
“We hold that B.C. was denied due process because the IJ did not conduct an adequate initial evaluation of whether an interpreter was needed and took no action even after the language barrier became apparent. Those failures resulted in a muddled record and appear to have impermissibly colored the agency’s adverse credibility determination. We therefore vacate the BIA’s decisions and remand for a new hearing on the merits of B.C.’s claims. On remand, the agency must also remedy other errors B.C. has identified, which include dealing with the corroborative evidence he submitted.”
“Baljinder Singh achieved what many immigrants to our country seek: he became a naturalized citizen. Unfortunately, he did so through willful misrepresentation, and, as a consequence, his citizenship was revoked. Before that revocation and while he was still a citizen, he was convicted of conspiracy to distribute and possess with intent to distribute illegal drugs. That led the government to initiate removal proceedings against him, and he was in fact ordered to be removed. Singh now petitions for review of that final order of removal, arguing that the pertinent statutory provisions, by their terms, permit removal only of individuals who were “aliens” at the time of their criminal convictions, whereas he was a naturalized citizen when convicted. The government responds that we must defer to the interpretation given by the Board of Immigration Appeals (“BIA”) to those statutes and therefore must deny the petition for review. In the alternative, the government contends that Singh should be treated as if he had never been naturalized and was actually an “alien” at the time he was convicted. We disagree with both of the government’s arguments and will grant Singh’s petition for review.”
Who would have thought that nearly eight months into the Biden Administration, Garland would still be living in this guy’s house and cranking out some of America’s most unabashedly horrible “jurisprudence” that actually threatens human lives! This is competence? Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
So many systemic problems here! So many obvious solutions! So much progressive expert talent out here who could get this system back on track and save lives in the process! So few excuses for Garland’s gross mishandling of the ongoing EOIR disaster!
The “culture of sloppiness, denial, and anti-immigrant bias” remains at EOIR almost eight months into the Biden Administration! Major personnel (new expert progressive judges committed to due process) and structural changes are necessary and long, long overdue!
The BIA needs to be replaced. Yesterday! Not rocket science! 🚀 Garland and his DOJ have no credibility whatsoever on civil rights, voting rights, or other racial justice issues as long as they run “star chambers” targeting primarily migrants of color (not to mention their long-suffering and dedicated lawyers, many acting pro bono).
“Justice” Star Chamber Style — Garland’s star chambers look and function disturbingly like those of Stephen Miller! Is this REALLY the “progressive humanitarian change” progressives voted for?
Immigrant justice IS racial justice IS equal justice for all! I’m certainly not the only person to have observed this!
⚠️WARNING TO PROGRESSIVE ADVOCATES: There can be no legitimate “asylum reform” without a strong, courageously progressive EOIR to set proper precedent, insure consistency, establish best practices, train judges and adjudicators, and police both the Immigration Courts and the Asylum Offices, including ordering corrective action to be taken in cases of those judge and officers repeatedly and demonstrably “not up to the job.” In simple terms, the culture of anti-asylum bias, racial dehumanization, and sloppy anti-immigrant decision-making that was promoted and institutionalized at EOIR under Sessions and Barr must be eradicated!
Do you seriously think that “this version” of EOIR, poorly trained, weakly staffed, and led by a BIA custom designed and packed by nativists to deny asylum and tilt in favor of DHS enforcement, will insure fairness and due process to asylum seekers in a “streamlined system?” No way!
Yet, beneath all the legal gobbledygook surrounding the proposed asylum regulation changes is the ugly reality that inflicting a “Miller-Lite” EOIR on asylum seekers and their advocates is EXACTLY what Garland and Mayorkas are absurdly proposing!
Advocates need to make their voices heard for immediate EOIR reforms from Garland and establishment of a new well-qualified, well-trained, progressive EOIR as an absolute, non-negotiable prerequisite to any more “gimmicks,” including most of the proposed asylum regulations.
As proved, beyond any reasonable doubt, day after day, Garland’s EOIR is “not quite ready for prime time” — not by a long shot! JUST SAY NO TO STREAMLINING & YET MORE “GIMMICKS” (see, e.g., “Dedicated Dockets”) WITHOUT RADICAL PROGRESSIVE EOIR REFORMS!⚖️🗽
The main problem with the current asylum system isn’t the law. It’s the unqualified folks charged with interpreting and applying it, those “defending the indefensible” (also an abuse of our legal process), and the spineless politicos unwilling to stand up for due process and the rule of law for migrants — at the border and elsewhere!
The failure of effective progressive leadership on EOIR reform at DOJ is simply appalling! And, OIL isn’t exactly covering itself in glory either! You can’t win the game without new and better players on the field. Right Casey?
“Casey Stengel might understand Judge Garland. The rest of us not so much.” Not going to win many games for humanity and the rule of law with Stephen Miller’s “nativist team” on the field. Is that fundamental truth really too deep for Garland and his “spear carriers” to grasp? PHOTO: Rudi Reit Creative Commons
SCOTUSblog: The Supreme Court on Tuesday night rejected the Biden administration’s plea for a reprieve from a district-court order requiring it to reinstate a Trump-era program known as the “remain in Mexico” policy, which requires asylum seekers to stay in Mexico while they wait for a hearing in U.S. immigration court. The court was divided on the decision to deny relief, with the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – indicating that they would have granted the government’s request and put the district court’s order on hold. See also The Supreme Court’s stunning, radical immigration decision, explained; Biden administration will continue challenging ‘Remain in Mexico’.
Politico: U.S. officials in Kabul gave the Taliban a list of names of American citizens, green card holders and Afghan allies to grant entry into the militant-controlled outer perimeter of the city’s airport, a choice that’s prompted outrage behind the scenes from lawmakers and military officials. See also In evacuation mission’s 11th hour, hope dims for Afghans seeking escape.
AP: U.S. Immigration and Customs Enforcement must test detainees for COVID-19 before they are transferred to the immigrant detention center in Tacoma, a federal judge ordered Monday.
The Intercept: ATLAS helps DHS investigate immigrants’ personal relationships and backgrounds, examining biometric information like fingerprints and, in certain circumstances, considering an immigrant’s race, ethnicity, and national origin. It draws information from a variety of unknown sources, plus two that have been criticized as being poorly managed: the FBI’s Terrorist Screening Database, also known as the terrorist watchlist, and the National Crime Information Center. Powered by servers at tech giant Amazon, the system in 2019 alone conducted 16.5 million screenings and flagged more than 120,000 cases of potential fraud or threats to national security and public safety.
AP: Five months after the Biden administration declared an emergency and raced to set up shelters to house a record number of children crossing the U.S.-Mexico border alone, kids continue to languish at the sites, while more keep coming, child welfare advocates say.
NYT: a new camp sprang up about 55 miles farther west, in the Mexican city of Reynosa, and this one, aid workers say, is far worse than the one at Matamoros ever was. Overcrowded already, with more than 2,000 people, it is filthy and foul-smelling, lacking the health and sanitation infrastructure that nonprofit groups had spent months installing at Matamoros. Assaults and kidnappings for ransom are commonplace.
NYT: . Through July, Border Patrol officials found 383 dead migrants, the highest toll in nearly a decade, and one already far surpassing the 253 recovered in the previous fiscal year.
Law360: Florida Gov. Ron DeSantis demanded the Biden administration provide personal information on undocumented migrants being relocated to Florida, including names, addresses and the number of people who tested positive for COVID-19 or refused the coronavirus vaccine.
Law360: A federal watchdog on Wednesday called on U.S. Citizenship and Immigration Services to improve its employment eligibility verification system, finding shortcomings that kept the agency from accurately confirming workers’ identities and work authorization in at least 800,000 instances.
AILA: The Supreme Court denied the application for a stay and thus preventing the Biden administration’s effort to halt the reminstatement of “Remain in Mexico.” (Biden, et al. v. Texas, et al., 8/24/21)
AILA: The court extended the district court stay on the preliminary injunction on the Biden immigration enforcement memos indefinitely. (Texas, et al., v. USA, et al., 8/27/21)
Law360: A Nepalese asylum-seeker has another shot at avoiding deportation after the Second Circuit ruled Friday that an immigration judge had prematurely declared his story of Maoist intimidation and violence not credible without giving him a chance to address minor discrepancies.
Law360: The Second Circuit rejected an immigrant’s arguments Wednesday that after being beaten by members of a rival political party for his affiliation with a Sikh party, he could not escape the threat of more violence by moving within India, affirming a Board of Immigration Appeals’ decision to deny asylum and deport the man.
Law360: A panel of Fifth Circuit judges vacated a Pakistani man’s deportation order issued after he was convicted for synthetic marijuana possession, finding that the Board of Immigration Appeals failed to fully consider whether his state law conviction is equivalent to federal drug law.
AILA: Where the petitioner alleged that the U.S. Supreme Court’s decision in Sessions v. Dimaya made his removal unlawful, the court held that the BIA did not err by construing his motion as a motion to reconsider nor by denying it as time barred. (Gonzalez Hernandez v. Garland, 8/13/21)
AILA: The court granted the petition for review of the BIA’s denial of the petitioners’ motion to reopen, finding the BIA abused its discretion by departing from established policy when it failed to apply the Matter of Sanchez Sosa factors. (Gonzales Quecheluno v. Garland, 8/12/21)
AILA: Where BIA had reversed the IJ’s findings that petitioner would more likely than not be tortured in Somalia, the court found that BIA applied the correct legal standard to the Convention Against Torture (CAT) claim and did not engage in impermissible fact finding. (Mohamed v. Garland, 8/13/21)
Law360: The Eighth Circuit refused to stop an Ethiopian refugee’s deportation, ruling Friday that a portion of the Immigration and Nationality Act allowing the deportation of certain migrants who face persecution upon return is ambiguous, but not unconstitutionally vague.
Law360: The Ninth Circuit Wednesday revived a Cameroonian rape survivor’s asylum bid, ruling that the immigration judge cherry-picked discrepancies in the woman’s testimony to justify deporting her and “displayed a dubious understanding of how rape survivors ought to act.”
AILA: The court upheld BIA’s determination that petitioner was ineligible for cancellation of removal under INA §240A(b)(1)(C) due to his conviction for an offense described in INA §212(a)(2), even though he had been previously admitted into the United States. (Sanchez-Ruano v. Garland, 8/11/21)
AILA: The court held that the IJ failed to put the petitioner on notice that his alleged false claim of U.S. citizenship would be at issue during his hearing, and that such failure violated due process by denying him a full and fair hearing. (Flores-Rodriguez v. Garland, 8/16/21)
AILA: The court found it lacked jurisdiction to review petitioner’s challenge to his expedited removal proceedings, concluding that the Supreme Court’s decision in DHS v. Thuraissigiam abrogated any colorable constitutional claim exception to INA §242(a)(2)(A). (Guerrier v. Garland, 8/16/21)
AILA: The court held that an Interpol Red Notice, among other evidence, created a serious reason to believe that the petitioner had committed a serious nonpolitical crime before entering the United States, and that he was ineligible for withholding of removal. (Villalobos Sura v. Garland, 8/17/21)
AILA: The court held that the record did not compel the conclusion that the petitioner suffered hardship in India that rose to the level of past persecution, where he did not experience significant physical harm and his harm was an isolated event, among other factors. (Sharma v. Garland, 8/17/21)
AILA: Granting in part the petition for review, the court held that vehicle theft under California Vehicle Code §10851(a) is indivisible in its treatment of accessories after the fact, and thus is not an aggravated felony theft offense under INA §101(a)(43)(G). (Lopez-Marroquin v. Garland, 8/18/21)
AILA: The court denied the petition for review, holding that because petitioner was convicted of a violation of 18 USC §1546(a) and his sentence was greater than one year, his conviction expressly fell under the definition of aggravated felony in INA §101(a)(43)(P). (Germain v. Att’y Gen., 8/18/21)
Law360: A split Eleventh Circuit panel refused Tuesday to grant asylum to a member of a Sri Lankan ethnic minority or to block his deportation, ruling he hasn’t proven past persecution or credible fear of future persecution.
Law360: A Texas federal judge has blocked an executive order from the state’s governor banning the transportation of certain migrants in the state, holding it violates the supremacy clause of the Constitution by authorizing state officials to make federal immigration determinations.
Law360: U.S. Immigration and Customs Enforcement must test immigrants for COVID-19 before transferring them to a Washington state detention center, after a federal judge blamed the agency for 240 detainees and facility staff contracting the virus over the past three months.
Law360: The U.S. Department of Homeland Security has told a California federal judge that it could not produce an administrative record related to its practice of turning back asylum-seekers at the southern border because no such policy existed.
AILA: USCIS provided information regarding a proposed class settlement in A.O., et al. v. Jaddou, et al. No. 19-cv-6151 (N.D. Cal.) regarding juvenile court orders in the California Juvenile Court with subsequent filed Special Immigrant Juvenile (SIJ) petitions after the age of 18 years old.
AILA: DHS released a memo with guidance on immigration processing for certain Afghan nationals, stating that they will be paroled into the U.S. on a case-by-case basis for a two-year period and may be eligible to apply for status through USCIS.
AILA: EOIR launched its FOIA Public Access Link (PAL), which will allow users to submit requests, check the status of requests, download records, browse the FOIA reading room, and correspond with the EOIR FOIA Service Center. The PAL also allows users to pay required fees online.
AILA: ICE issued interim guidance to all OPLA attorneys to guide them in appropriately executing interim civil immigration enforcement and removal priorities and exercising prosecutorial discretion. Note, on 8/19/21, OPLA suspended reliance on this guidance due to litigation.
Thanks, Elizabeth! It’s interesting and satisfying that several Circuits, including the 2d and the 9th, are openly rejecting EOIR’s practice of “nit-picking” asylum applicants’ testimony in an attempt to deny meritorious applications. It’s all part of the “culture of denial” that continues to flourish at EOIR’s deportation assembly line under Garland.
Sadly, the Circuits haven’t yet had the guts to face the larger problem here — the EOIR system, as currently staffed with too many “Trump plants” as judges and a continuing lack of expertise and anti-asylum, anti-immigrant bias is clearly unconstitutional under the Fifth Amendment!
Indeed, some Circuit panels take judicial review seriously, others function as rubber stamps, and most individuals wronged in Immigration Court lack the lawyers and wherewithal to take their case to the Circuits. This means that inconsistent results and lack of consistently applied expertise at all levels of the Federal legal system just add to the inconsistencies and unfairness heaped on migrants in violation of the Due Process Clause. To date, no Circuit has been willing to act on the glaring constitutional defects at EOIR staring them in the face.
Unhappily, Congress also has failed to act on long-overdue legislation to create an independent, Article I Immigration Court. In the interim, it would be possible to ameliorate, if not entirely eliminate, these constitutional problems by replacing marginally qualified IJs and BIA judges with well-qualified progressive experts and then giving them independence to issue precedents and make necessary procedural and structural changes to restore some semblence of Due Process, quality control, fair procedures, and efficiency to this disgracefully dysfunctional, unnecessarily backlogged system. The private bar could be constructively involved in creating universal representation and sane docket management. Indeed experts recommended these very changes to Garland, only to be ignored in favor of the “same old, same old” incredible mess and gross indifference to both the rule of law and human life at EOIR!
Not surprisingly, a recently issued report from the Government Accountability Office (“GAO”) highlighted lack of “shareholder engagement” — something specifically discouraged by the Trump kakistocracy — as an endemic and continuing problem at EOIR. https://www.gao.gov/products/gao-21-104404
Shareholder engagement means having a meaningful dialogue with those practicing before the courts, and honestly considering their input in advance of promulgating new policies. So called “Town Halls” to announce unilaterally developed bureaucratic policies are the antithesis of this meaningful process. It’s no mystery why EOIR continues to founder and stumble under Garland.
Immigration attorney, champion for the underdog, and dedicated family man Dale Marvin Schwartz, 79, of Sandy Springs, died suddenly and peacefully on August 27. Born to parents Florence and Sanford Schwartz on August 20, 1942 in Columbus, Georgia, Dale graduated from Winder Barrow High School, entered college at age 17, and ultimately received a Bachelors and a Law degree from the University of Georgia. He was married for 56 years to his college sweetheart, Susan Ellis Schwartz, and adored his three daughters, Lori (Allan) Peljovich, Leslye Schwartz, and Laine (Greg) Posel, his nine grandchildren, and his sweet puppy, Ruthie.
Dale was a force to be reckoned with. In his early years, he worked with Alex Cooley to promote rock concerts at Lake Spivey, interned for Senator Richard Russell in Washington, DC, before being recruited by Governor Carl Sanders to Troutman Sanders, where he became a partner and head of the immigration group. In 1995 he opened his own specialty immigration law practice, in which he remained active until his death. He was an adjunct professor of law at Emory for many years.
Dale was a tireless advocate for immigrants, refugees, and those without a voice. He joined John Lewis in the lunch counter sit-ins in Nashville, worked tirelessly to acquire a pardon for Leo Frank, represented the Mariel Cubans in the Atlanta Federal Penitentiary, and started the Secret Santa program for children in the Fulton County DFCS system. Dale lent his heart, voice and leadership skills to a plethora of organizations: He served as President of JF&CS Atlanta, National Board Chair of HIAS, Atlanta Board Chair and National Commissioner at ADL, President of American Immigration Lawyers Association (AILA), co-founder of the American Immigration Council non-profit, and founder of the Young Democrats chapter at UGA.
Dale’s passing leaves a great hole in the hearts of many. He had friends throughout the world because of his numerous hobbies, including photography, HAM radio, and model train collecting. He will most be remembered for his larger than life personality, wit, storytelling, travel adventures, and his not-for-primetime jokes. He was a leader, advocate, mentor, teacher, colleague, friend. But most importantly, he was a son, brother, husband, father, and proud grandfather.
I knew Dale well. He sued us often during my “Legacy INS” tenure.
Throughout years of spirited and often emotional litigation, we always remained on cordial terms. Eventually, during my “private practice phase,” we ended up “on the same team” on a number of business immigration issues.
Always generous with his time and advice, Dale loved to “talk immigration law,” and usually had a cite, sometimes to long forgotten, yet right on point, precedents or policy statements.
Dale’s was truly a “life well lived.” And, he inspired many, many members of today’s “New Due Process Army.”🗽⚖️🇺🇸
Phan Quang Tue is a retired San Francisco Immigration Court judge.
As I sit down to start writing this piece, the chaotic scenes of group panic at the Kabul airport in Afghanistan continue to unfold. They bring back memories of similar painful images at the Tan Son Nhat airport in Saigon 46 years ago.
Our family of four, including my pregnant wife and our two small children, then 4 and 8 years old, were sitting on the floor of a C-130 about to take off. The aircraft was crowded but strangely quiet. Everyone stared down and avoided eye contact. It was a moment of collective humiliation, to have to leave one’s country under these circumstances. The irony was that we knew we were being saved by the very same foreign government that did not stand behind its commitment to its allies in South Vietnam. We did not know where exactly we were heading, or what to expect in the days and months ahead of us. It was a moment of total uncertainty.
Although 46 years apart, the parallels between the events in Saigon and Kabul are striking. Once again, we see scenes of a capital in agony, with everyone taking to the streets with no clear direction. We remember images of people climbing over the walls of the U.S. Embassy in Saigon; now in Kabul, it’s people climbing over barriers at Hamid Karzai International Airport or chasing military airplanes on the tarmac. But the similarities do not stop there.
The Americans are withdrawing their troops after 20 years in Afghanistan. That is almost the same as the 21 years between the beginning of U.S. political involvement in Vietnam starting with the 1954 Geneva agreements and the Communist takeover of Saigon on April 30, 1975. And there is more. As in Vietnam, the Americans in Afghanistan treated their opponents with more respect than their allies. Though their opponents have easily identified names — the Vietcong and then the Taliban — they minimized their own allies as temporary “regimes” based in Saigon or Afghanistan.
The Vietnamese refugees who arrived in the United States starting in April 1975 were not always made welcome, as the winners of a popular war might have been. Even the veterans — American and Vietnamese alike — were not warmly received everywhere, despite the service they had given to their countries. This country does not like to lose and does not know how to lose. Afghan refugees should not expect to be welcomed with parades like the gold medalists returning from the Tokyo Olympics.
. . . .
The United States did not win the war against the Taliban. But now is when the American people can step in and provide the Afghan refugees a haven whereby they can join “we the people” to “form a more perfect Union” for themselves, their children and their grandchildren.
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Read the rest of the op-ed at the above link.
Thanks, my friend and colleague, for sharing, for all you have done for America, and for your continuing important contributions. It’s an honor to know you and to be working with you on our Round Table!🛡⚔️
Trumpy nativists, posing as fiscal conservatives, want you to question whether the United States can afford to take in Afghan allies and refugees.
The better question is whether we can afford not to.
The Republican Party has cleaved in recent weeks over the issue of Afghan refugees, specifically those who served as military interpreters or otherwise aided U.S. efforts. On the one hand, Republican governors and lawmakers around the country have volunteered to resettle Afghan evacuees in their states. Likewise, a recent CBS News/YouGov poll found that bringing these allies to the United States is phenomenally popular, garnering support from 76 percent of Republican respondents. Influential conservative constituencies are invested in this issue, too, including veterans’ groups and faith leaders.
On the other hand, the Trump strain within the GOP has been fighting such magnanimous impulses with misinformation.
Xenophobic politicians and media personalities have been conspiracy-theorizing about the dangers of resettling Afghan allies here — even though we had previously entrusted these same Afghans with the lives of U.S. troops and granted them security clearances. And even though they go through additional extensive screening before being brought to our shores.
No matter; if you listen to Tucker Carlson and his ilk, you’ll hear that these Afghans are apparently part of a secret plot to replace White Americans, and that untamed Afghan hordes are going to rape your wife and daughter.
Often these demagogues try to disguise their racist objections to refugee resettlement (and immigration more broadly) as economic concerns. Their claim: that however heartbreaking the footage from the Kabul airport, compassion for Afghan refugees is a luxury Americans simply cannot afford.
Refugees are somehow responsible for existing housing shortages, proclaims Carlson. (This is demonstrably false; the reason we have too little affordable housing is primarily because people like Carlson oppose building more and denser housing.) More refugees would sponge up precious taxpayer dollars, according to Rep. Marjorie Taylor Greene (R-Ga.). And in general, refugees — like all immigrants — are a massive drain on the U.S. economy, alleges Stephen Miller.
This is nonsense.
. . . .
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Read Catherine’s complete op-ed at the link!
Thanks, Catherine, for once again standing up to and speaking truth against disgraceful, neo-Nazi, nativist racists like Stephen Miller, Tucker Carlson, and Marjorie Taylor Greene!
By contrast, one might well ask what “value added” folks like Stephen Miller and his buddies, (Miller has largely sponged off of taxpayer funds while looking for ways to inflict misery on others and destroy America) bring to the table. None, that I can see!
Moreover, even beyond the undoubted value of robust refugee admissions, there is good reason to believe that large-scale migration presents our best opportunity for salvation and prosperity, rather than the “bogus threat” posited by Miller & Co.
As Deepak Bhargava and Ruth Milkman recently, and quite cogently, wrote in American Prospect:
. . . .
A “Statue of Liberty Plan” for the 21st century could make the United States the world’s most welcoming country for immigrants. Right now, the foreign-born share of the U.S. population lags behind that of Canada, Australia, and Switzerland. In order to surpass them, the United States would have to admit millions more people each year for a decade or longer. We currently admit immigrants to promote family integration, meet economic needs, respond to humanitarian crises, and increase the diversity of our population from historically underrepresented countries. Under this plan, we could dramatically expand admissions in all four categories and add a fifth category to recognize the claims of climate migrants. As a civic project of national renewal, with millions of people playing a role in welcoming new immigrants, such a policy could reweave frayed social bonds and create a healthier, outward-looking, multiracial national identity.
The politics of immigration, however, lag far behind the moral and economic logic of the case for a pro-immigration policy. The immigrant threat narrative has become so pervasive that many liberals have embraced it, if only because they hope to fend off threats from right-wing nationalists. President Obama not only deprioritized immigration reform in his first term but deported record numbers of immigrants, hoping that such a display of “toughness” might win support for legalization of the undocumented immigrants already here. Hillary Clinton advocated liberal immigration policies in her 2016 presidential campaign but later tacked toward restrictionism. Liberals and leftists across the global North, from Austria to France to the U.K., have offered similar concessions to nativism. But mimicking right-wing appeals is a losing gamble that only serves to legitimize the anti-immigrant agenda and its standard-bearers.
There are promising signs of potential for shifting the debate, however, if progressives lean in. Polling shows that Americans increasingly reject the immigrant threat narrative, largely due to Trump’s shameless cruelty. Last year, for the first time since Gallup began asking the question in 1965, more Americans supported increased levels of immigration than supported reduced levels. A telling barometer of how the sands are shifting is that President Biden’s proposed immigration bill is far to the left of what Obama proposed.
The work of shifting gears toward a more welcoming policy can begin right now by fully welcoming immigrants who already reside in our country. A crucial starting point would be to include a path to citizenship for essential workers, Dreamers, farmworkers, and Temporary Protected Status holders in the American Jobs Plan Congress is considering. This is not only a humane approach, but it also will stimulate economic growth and thus help finance other parts of the plan. A separate campaign by the Biden administration (not requiring congressional action) to simplify the naturalization process for nine million eligible green-card holders would help make the nation’s electorate more reflective of its population.
Getting the politics of immigration right isn’t just important for immigrants. Nativism, built upon the sturdy foundation of racism, remains among the most potent tools in the arsenal of right-wing authoritarians. Any program for economic equity or democracy will be fragile in the absence of a coherent immigration agenda. The antidote to authoritarianism is not to duck, cower, or imitate the nativists, but rather to make the case for opening the door to millions more immigrants.
If slavery and genocide were the country’s original sins, its occasional and often accidental genius has been to renew itself through periodic waves of immigration. Once we expose the immigration threat narrative as the Big Lie that it is, it becomes plain that immigration is not a problem to be solved but an opportunity and necessity to be embraced.
This, of course, also casts doubt on the wisdom of our current, wasteful and ultimately ineffective, policy of illegally rejecting legal asylum applicants at our Southern Border, rather than attempting in good faith to fit as many as qualify under our current system, as properly and honestly administered (something that hasn’t happened in the past). Additionally wise leaders would be looking for ways to expand our legal immigration system to admit, temporarily or permanently, those whose presence would be mutually beneficial, even if they aren’t “refugees” within existing legal definitions. In this respect, the proposal to modernize our laws to admit climate migrants is compelling.
Remember, as stated above:
Getting the politics of immigration right isn’t just important for immigrants. Nativism, built upon the sturdy foundation of racism, remains among the most potent tools in the arsenal of right-wing authoritarians. Any program for economic equity or democracy will be fragile in the absence of a coherent immigration agenda. The antidote to authoritarianism is not to duck, cower, or imitate the nativists, but rather to make the case for opening the door to millions more immigrants.
NDPA members, keep listening to Catherine and the other voices of progressive wisdom, humanity, practicality, and tolerance. The key to the future is insuring that the “Stephen Millers of the world” never again get a chance to implement their vile, racist propaganda in the guise of “government policy.”
Happily, many Northern Virginians have listened to our “better angels.” Humanitarian aid and resettlement opportunities for Afghan refugees are pouring in, as shown by this report from our good friend Julie Carey @ NBC 4 news:
Julie Carey NOVA Bureau Chief, NBC4 Washington PHOTO: Twitter
The local couple interviewed by Julie emphasized the impressive “human dignity” of the Afghan refugees! (I also observed this during many years of hearing asylum cases in person at the Arlington Immigration Court.) Compare that with the lack thereof (not to mention absence of empathy and kindness) shown by the nativist naysayers!
“Kevelin Danery Espinal-Lagos and her two minor sons were ordered removed to Honduras by an Immigration Judge. While their appeal was pending before the Board of Immigration Appeals, the petitioners filed derivative U visa applications with United States Citizenship and Immigration Services that, if granted, would allow them to move to reopen their removal proceedings. Accordingly, the petitioners filed a motion requesting that the Board remand their case so that they could seek a continuance from the Immigration Judge pending the resolution of their derivative U visa applications. The Board dismissed their appeal and denied their motion to remand, reasoning that their “U-visa eligibility and the steps being taken in pursuit of a U-visa could have been discussed at the hearing before the Immigration Judge entered a decision.” For the narrow ground articulated herein, we hold that the Board abused its discretion in its reason for denying the petitioners’ motion to remand. … Espinal-Lagos did not become prima facie “eligible” for a derivative U visa until her husband filed his U visa application with USCIS on July 6, 2018—several months after her hearing before the IJ on February 7, 2018. Indeed, during oral argument when asked, “When was Ms. Espinal-Lagos eligible for a U visa?”, the Government responded that she was “eligible when it’s filed”—“it” being Bethanco’s U visa application.1 The position the Government urges—that Espinal-Lagos should have disclosed to the IJ her potential future eligibility given the district attorney signature on her husband’s U visa certification— has no basis in the regulations. Therefore, the Board’s denial of Espinal-Lagos’s motion to remand was based on a legally erroneous interpretation of the governing regulations. Navarrete-Lopez, 919 F.3d at 953. The Board’s decision was also irrational because it required Espinal-Lagos to have presented information to the IJ that could not have been discovered or presented at that time. … Because the Board abused its discretion in its single reason for denying Espinal-Lagos’s motion to remand, we grant the petition for review and REMAND to the Board for proceedings consistent with this opinion.”
Although this case is unpublished, it’s significant for these reasons:
The “super-conservative” 5th Circuit seldom reverses removal orders;
Granting the legally-required remand in this case would have been about a 30-second “adjudication” (tops) by a competent BIA appellate judge;
Instead of confessing error and asking for a remand, OIL defended this clearly wrong garbage, a likely violation of ethics, an abuse of the Circuit Court’s time, and dilatory action that took the Fifth Circuit two years to correct;
Why would a rational, ethical system even want to remove a family eligible for derivative U status, let along violate the law and make extra work to achieve an irrational, inhumane, and counterproductive result;
For Pete’s sake, this was an UNOPPOSED MOTION TO REMAND at the BIA, but incompetent judges, bad lawyering, and a vile anti-immigrant culture at DOJ created an unnecessary disaster;
As those of us who are actually familiar with the EOIR system know, mistakes like this are a daily, if not hourly, occurrence at today’s thoroughly dysfunctional EOIR! It’s just that relatively few individuals are fortunate to have the time, knowledge, and competent legal assistance to obtain justice at the Court of Appeals level.
NO, Judge Garland, as all outside experts have been telling you, the answer to largely unnecessary, self-created, out of control EOIR backlogs is NOT “dedicated dockets,” idiotic quotas, more mindless gimmicks, or even throwing more judges into an already out of control and dysfunctional system.
It starts, but does not end, with replacing the BIA and incompetent judges at EOIR with qualified progressive experts, bringing in dynamic progressive judicial leadership that solves problems rather than creates them, ending the anti-immigrant “culture of denial” at EOIR and DOJ generally, installing real, due-process-focused training and giving new progressive expert judges independence to establish and enforce quality decision-making, due process, and best practices!
Also, OIL needs a remake and some leadership from skilled, progressive immigration litigators committed to “speaking for justice,” using judicial time wisely, and making the system work rather than mindlessly assisting in the building of backlog.
Due process is a team effort! Sadly, after four years of enabling and defending the indefensible actions of the Trump fascist kakistocracy, there aren’t many folks out there at EOIR and DOJ generally who can “play this game.”
“Can’t anyone here play this game?” So far, the answer at Garland’s EOIR is a resounding “No!” PHOTO: Rudi Reit Creative Commons
🇺🇸Due Process Forever!
PWS
08-27-21
ADDENDUM:
Even as I was writing this, Dan Kowalski sent me yet another 5th Circuit BIA remand. This one was on “divisibility” and was the result of three years of litigation to correct the BIA’s unprofessional work. THAT’S what generates unnecessary backlogs! Efficiency comes from getting thing right in the first instance, particularly when proceedings should be terminated or relief granted.
“Sajid Momin Wali, a native and citizen of Pakistan, became a lawful permanent resident in 2012. In 2017, he pleaded guilty in Texas state court to possession with intent to deliver a synthetic cannabinoid. As a result, he was charged as removable under 8 U.S.C. § 1227(a)(2)(B)(i) for having been convicted of a state-law crime relating to a controlled substance defined in the Controlled Substances Act, 21 U.S.C. § 802. Both the Immigration Judge and the Board of Immigration Appeals sustained that removability determination, concluding that although the Texas statute that formed the basis of Wali’s conviction was broader than the Controlled Substances Act, Wali was removable because the Texas statute under which he was convicted was divisible. After the BIA issued its decision, this court decided Alejos-Perez v. Garland, 991 F.3d 642 (5th Cir. 2021). Under Alejos-Perez, the BIA’s determination that Wali’s statute of conviction was divisible was error. Accordingly, we grant Wali’s petition for review, reverse the BIA’s order, and remand for the BIA to reconsider whether Texas Penalty Group 2-A is divisible in light of Alejos-Perez.”
[Hats off to Amber Gracia for fighting this case since 2018!]
Amber García, Esquire Houston, TX PHOTO: AVVO
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Way to go, Amber! Welcome to the NDPA “star circle!” 🌟 Amber knows “crimigration!” Why doesn’t the BIA?
Why hasn’t Garland brought in better progressive judges? Why does he think the human lives and futures at stake in Immigration Court are expendable? ☠️👎🏽🤮
This is NOT, I repeat NOT, how an “expert court” functions! And, you can’t create and operate an expert court without experts. The “expertise” needed to fix this system is primarily on the outside. Garland needs to make long overdue personnel, leadership, structural, and attitude changes at EOIR! Lives are at stake, and they are “chargeable” to Garland!
🇺🇸DPF!
PWS
08-27-21
ADDENDUM #2
BIA screwups on the x’s and o’s of judicial decision-making continue to “burn up the internet.”
Here’s yet another unpublished rebuke from the 2d Cir. on EOIR’s “any reason to deny worst practices” sent in by my colleague “Sir Jeffrey” Chase of Round Table ⚔️🛡fame:
We conclude that the BIA and IJ erred by relying on an alleged inconsistency between Tamrakar’s testimony before the IJ that the Maoists threatened him and tried to grab him before he escaped and Tamrakar’s statement during his credible fear interview that the Maoists left after threatening him to support its adverse credibility determination without first raising that discrepancy to Tamrakar. That inconsistency was not “self-evident,” Ming Shi Xue, 439 F.3d at 114, because, during the same credible fear interview, Tamrakar stated that the Maoists “tried to grab [him] but [he] ran away from them.” A.R. at 369. This statement was consistent with his testimony. Because the IJ and BIA “relied on the combined force of [three] inconsistencies,” Singh, 2021 WL 3176764, at *7, and did not provide Tamrakar the opportunity to explain one of them, we “cannot confidently predict whether the agency would adhere to [its] determination absent [its] error[].” Id. at *4. Further lessening our confidence, one of the other inconsistencies that the BIA and IJ relied on (whether Tamrakar’s friend accompanied him during the first incident or not) is closely analogous to one that our Court determined gave “no substantial support” to an adverse credibility finding on its own. Id. at *8 (noting that an inconsistency regarding whether a third party accompanied the petitioner to the police station after a key attack could be explained by differing recollections or another innocent explanation). Because we cannot confidently predict what the agency would do absent error, we vacate its decision.
Unfortunately, chronically sloppy work and wrongful denials have become so “routinized” at EOIR that the Circuits don’t even publish many of them any more! But, there are plenty of them out there!
They are just the “tip of the iceberg” of the systemic unfairness, racially-tinged bias, utter disdain for due process, lack of equal justice, unprofessionalism, glaring lack of expertise, and gross abuse of Government resources taking place in “Garland’s Star Chamber/Clown Courts!” Even one of these these is one too many!
The Human Rights advocacy community needs to organize and demand progressive changes from Garland, starting with long-overdue personnel and leadership changes at EOIR! How many more vulnerable individuals will be wrongfully denied or deported before a “responsible government official” (of which there seems to be as distinct shortage at Garland’s DOJ) pulls the plug 🔌 on this ongoing, intolerable human rights and racial justice farce going on at the DOJ!
PANEL: MARTIN (Obama), NEWSOM (Trump), and BRANCH (Trump), Circuit Judges.
OPINION BY: Judge Branch
DISSENT: Judge Martin
KEY QUOTES FROM DISSENT:
The majority opinion gives no more consideration to Mr. Murugan’s claims
and individualized evidence than did the Board of Immigration Appeals and the Immigration Judge. That is to say not much consideration at all.
Mr. Murugan produced evidence that in October 2018, the Sri Lankan government changed drastically when the former president, who had been accused of authorizing war crimes and other human rights abuses against Tamils “blindsided” political observers and “sudden[ly]” returned as prime minister. Because Mr. Murugan is a member of the Tamil ethnic group, his attorney brought up these facts at the hearing before the IJ. But the IJ took no notice of this evidence, finding that Mr. Murugan’s country conditions evidence was outdated because it included materials related to the former president’s rule from 2014 to 2016. Mr. Murugan argued to the BIA that the IJ improperly disregarded these new facts, because they were relevant to what treatment the Tamils could expect from the newly returned prime minister. Even so, the BIA mechanically adopted the IJ’s decision that Mr. Murugan’s evidence was outdated. Mr. Murugan has now tried a third time, pointing out the significance of this evidence in his brief before this Court.
The majority opinion, like the IJ and the BIA, fails to engage with this
evidence. But I see it as substantial and highly probative evidence of a pattern or 19
USCA11 Case: 19-13715 Date Filed: 08/24/2021 Page: 20 of 34
practice of government persecution of Tamils. Because I believe Mr. Murugan met his burden of showing he had a well-founded fear of future persecution based on the Sri Lankan government’s practice of persecuting Tamils, I would grant him relief on this claim.
. . . .
When this Court is tasked with reviewing a decision of the BIA, we must
actually review it, albeit with deference. This majority opinion may condemn Mr. Murugan to extreme persecution in Sri Lanka because it failed to actually examine the evidence of recent political changes in that country. When a dictator with a well-documented history of persecuting an ethnic group returns to power, surely
33
USCA11 Case: 19-13715 Date Filed: 08/24/2021 Page: 34 of 34
our law does not require a member of that group wait to again experience persecution before he can claim asylum. Mr. Murugan has met his burden here. I respectfully dissent.
************
I encourage everyone to read Judge Martin’s complete dissent. By contrast, Judge Elizabeth Branch’s majority opinion is a vapid, disingenuous, piece of right-wing legal sophistry. As my colleague, Hon. “Sir Jeffrey” Chase observed, Branch was “Associate General Counsel for Rules and Legislation, U.S. Department of Homeland Security, in 2004-2005,” during the Bush II Administration.
Judge Martin will retire from the bench on September 30, 2021, thus giving President Biden a chance to appoint her replacement. So, this might be her last immigration opinion.
Judge Martin calls out her intellectually dishonest Trumpy colleagues and accurately characterizes BIA review as no review at all. (Actually, it’s worse than no review, because the BIA sometimes reverses correct IJ asylum grants and rewrites decisions to make it easier for OIL to defend bad denials.)
No matter how poorly they perform their judicial duties (the majority decision in this case certainly stands out as one of many low points in recent American jurisprudence) Trump’s and McConnell’s far righty Article IIIs enjoy lifetime sinecures.
But, EOIR “judges,” particularly after the last two decades of political interference with any semblance of “judicial independence,” enjoy no such exalted lifetime protection. As DOJ keeps pointing out, they are “mere Government attorneys” who can be reassigned to a wide range of attorney positions at the discretion of the AttorneyGeneral.
Thus Garland could, and should, remove and reassign poorly qualified judges and replace them with real, well-qualified expert progressive judges who understand asylum law, will fairly apply it, will issue some positive asylum precedents, and will control the “Asylum Deniers Club” operating in Immigration Courts throughout America. The dysfunction, institutionalized unfairness, and “worst practices,” are particularly acute after four years of poor judicial selections, a BIA packed with anti-asylum zealots, and defective training by biased, anti-asylum AGs under fatally flawed and discriminatory selection procedures
Judge Martin “gets it.” How come nobody on Team Garland does?
As we can see, from the Supremes to the “retail level” at the Immigration Courts, the consequences of poor right-wing judging fall most heavily on migrants, women, children, and people of color. Progressives could change that around at EOIR. But, Judge Garland doesn’t seem up to the job, as the opportunity for long overdue, systemic, life saving changes at EOIR continues to slip through his fingers!
The Supreme Court on Tuesday said the Biden administration must comply with a lower court’s ruling to reinstate President Donald Trump’s policy that required many asylum seekers to wait outside the United States for their cases to be decided.
The administration had asked the court to put on hold a federal judge’s order that the “Remain in Mexico” policy known as Migrant Protection Protocols (MPP) had to be immediately reimplemented. U.S. District Judge Matthew Kacsmaryk ruled earlier this month that the Biden administration did not provide an adequate reason for getting rid of the policy and that its procedures regarding asylum seekers who enter the country were unlawful.
Over the objections of the three liberal justices, the court’s conservative majority agreed that the administration had not done enough to justify changing the policy.
The administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious,” the court said in a short, unsigned order. In such emergency matters, the court often does not elaborate on its reasoning.
It said Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan would have granted the administration’s request. The three also gave no reason.
The action could be an ominous sign for the new administration. The court is considering a request that it dissolve the pandemic-related evictions moratorium implemented by the Centers for Disease Control and Prevention, about which the court’s most conservative justices have already expressed skepticism.
The court often showed deference to the Trump administration in such emergency matters, including when the MPP was first implemented.
. . . .
*************
Read Robert’s full article at the link.
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — Supremes’ GOP majority makes it clear that it considers asylum seekers of color as something less than human, whose rights and lives simply don’t matter! They are expendable, according to elite ivory tower righty jurists who don’t even give asylees lives a thought and condemn them without rationale. Not their kids, not anyone they can relate to. EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Not too surprising, given the Roberts Court’s fairly consistent disregard for human rights, the rule of law, the Due Process Clause of the Constitution, and ill-concealed contempt for racial justice and people of color! They had already gone “belly up” on MPP after it was properly blocked by lower Federal Courts during the Trump regime.
It’s going to be a long four years for American democracy, human rights, and individuals of color if the Dems can’t get it together, eliminate the filibuster, and enact some legislation while they are still in control of all three branches. But, it’s the Dems, so don’t count on much besides some hand-wringing and feckless rhetoric.
And to be fair, the Biden Administration’s continuedlawless use of Title 42 to suspend the rule of law for many at the border compliments both the Trump regime’s xenophobic policies and the Supremes’ dissing of people of color. Dred Scott is still alive and kicking in 21st Century America, even as our nation grows more diverse.
🇺🇸Due Process Forever!
PWS
08-24-21
ADDENDUM:
As recently posted by Dean Kevin Johnson on ImmigrationProf Blog:
“Thousands of people have suffered the horrible consequences of the Migrant Protection Protocols. The Supreme Court has now upheld the Texas court’s decision and, instead of keeping MPP a stain in the history books, it will continue to be a present-day disaster.
“Forcing vulnerable families and children to wait in provisional camps in Mexico puts their lives at risk, while also making it nearly impossible for them to access the asylum process. The Biden administration can and must work to terminate the policy again immediately. Rather than turning away people fleeing harm, we should ensure people have a fair day in court.”
Inside the Gulag — PHOTO: Creative Commons In the fine tradition of Josef Stalin, like US Presidents before him, President Biden finds it useful to have a “due process free zone” to stash people of color and other “undesirables” whose “crime” is to demand due process under law! How subversive!
The Supreme Court has decided a number of immigrant detention cases in recent years. Next Term brings another case. Alyssa Aquino for Law360 reports that the Court agreed today to review a Ninth Circuit decision that required bond hearings for immigrants who have been detained for more than six months with final removal orders. A split ruled that the Immigration and Nationality Act requires the federal government to hold bond hearings for detained migrants, and that the government bears the burden of proving that detainees are a flight risk or public safety threat.
Notice any difference between the Biden-Harris campaign rhetoric and actual performance once elected?
Never know when a “due process free zone” where individuals not charged with crimes can be detained forever without individualized bond determinations will be a handy hammer to have in your toolbox!
And, don’t forget those huge profits being raked in by the private detention industry, so beloved by DHS and politicos who receive contributions and can tout the “job creation” in the Gulag! Also, states and localities who rent out substandard prison space on questionable contracts love the Gulag!
Significantly, none of the lower court decisions the Biden Administration seeks to overturn requires the release of anyone! Nope! All the lower courts have done is to give the “civil prisoners” a right to plead their cases for release and to require the Government to provide an individualized rationale for continued indefinite detention! Sure sounds like simple due process to me!
Maybe, if Garland, Mayorkas, and the Supremes had a chance to spend a few “overnights in the Gulag” they would take the Fifth Amendment’s application to people of color in our nation and pleading for their lives at our borders more seriously!
🇺🇸Due Process Forever! The “New American Gulag,” Never!
– Sozi
