☠️👎🏽BIA GOOFS UP ANOTHER CAT CASE IN 5TH CIR! — 4 Years, 3 BIA Decisions, 2 Circuit Remands, & Back To “Square 1” — What’s Missing? — Only Competence & Justice!

Four Horsemen — Gen. Garland continues to use “Miller Lite Mercenaries” against migrants. “The U.S. constitution states that our judicial system is a ‘separate but equal part’ to our democracy. But immigration courts have nothing to do with that.” — Tea Ivanovic, Immigrant Food
Albrecht Dürer, Public domain, via Wikimedia Commons

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/unpub-ca5-on-honduras-cat-state-involvement-guity-casildo-v-garland#

Daniel M. Kowalski

1 Jul 2021

torture

cat

Honduras

Unpub. CA5 on Honduras, CAT, State Involvement: Guity Casildo v. Garland

Guity Casildo v. Garland (unpub.)

“[T]he BIA has not addressed the question of the applicability of the color-of-law rule regarding state involvement in torture. … The parties agree that a remand is the best alternative where the BIA has made an unauthorized or inadequately supported factual finding on the likelihood of torture, thereby leaving unresolved whether the IJ failed to apply the rule-of-law theory of state involvement in torture. Accordingly, we conclude that the prudent course is to remand the case to the BIA. … We further order the BIA to remand the case to the IJ for a clear factual finding on the likelihood of torture and for the IJ’s clarification, if necessary, on the question of state involvement in light of the color-of-law rule. … PETITION GRANTED; VACATED AND REMANDED WITH INSTRUCTIONS TO REMAND.”

[Hats off to Matthew Nickson!]

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

Congrats to Matthew Nickson! Getting justice for a migrant in the notoriously pro-Government 5th Cir. is no mean feat! Think of how much easier your job would be if AG Garland hired some “real judges” at EOIR — experts in immigration and human rights who have represented individuals in Immigration Court and who are committed to due process and fundamental fairness above all else!

When you’re out to stick it to Hondurans (actually all Northern Triangle migrants), regardless of facts or law, to please your sleazy White Nationalist political bosses in the Trump regime, bad things are going to happen.

Let’s not forget that the Trump regime entered into a totally corrupt and bogus “Safe Third Country” agreement with Honduras, probably one of the least safe countries in the Hemisphere with no functional asylum system at all. Given this level of overt political fraud by the “bosses,” I doubt that the regime would have appreciated BIA bureaucrats correctly finding that torture with government acquiescence is likely in Honduras.

Sure, these failures were before Garland took over. But, he has made little effort to date to either acknowledge and root out the deep corruption and anti-immigrant weaponization of the Immigration Courts or to address the inadequate “go along to get along judging” that was encouraged at EOIR. In plain terms, respondents did not get, and still do not get, qualified, fair, and impartial judges at EOIR to adjudicate their claims.

You have only to look at the comedy of errors and ineptitude at EOIR in this case “outed” by one of the most pro-Government Circuits in America to see the proof! That’s unconstitutional!

Remand after remand to “get it right” also “jacks backlog.” Just getting a case back on an Immigration Judge’s docket takes time and effort in a non-automated system with no e-filing and traditionally overwhelmed and demoralized staff. Instead of fixing “customer service” @ EOIR, the Trump kakistocracy invested in ludicrous, due-process-destroying “IJ Dashboards” to keep the quotas filled and the unconstitutional “nativist deportation railroad” moving. Yet, Garland, Monaco, Gupta, and Clarke pretend that none of these constitutional and civil rights absurdities, not to mention grotesque management fraud, waste, and abuse, happened!

Don’t stand for any of Garland’s dishonest “expedited dockets” which implicitly blame those seeking justice under law and their courageous lawyers for the ungodly mess he and his lieutenants inherited but have failed to address! And, “dedicated docket for asylum seekers” is just a euphemism for more backlog-building, due-process denying “Aimless Docket Reshuffling” and continuing mismanagement by Garland.

I’ll bet that qualified experts could cut the largely self-inflicted backlog by at least 50% in 90 days without stomping on anyone’s due process rights merely by administratively closing or terminating without prejudice hundreds of thousands of non-priority aged cases. Many of those could better be handled at USCIS.

It shouldn’t be this difficult to get an Administration that ran and got elected on a “reform” and “return to good government” platform to do the right thing here. But, it is! EOIR needs reform, including a new BIA and competent, expert judges who know asylum law, respect due process, and will treat migrants and their attorneys fairly, respectfully, and humanely. It’s not a “big ask!” So why is it “above Garland’s pay grade?”

🇺🇸Due Process Forever!

PWS

07-02-21

⚖️🗽🇺🇸TEA IVANOVIC @ IMMIGRANT FOOD INTERVIEWS ME ON DYSFUNCTIONAL IMMIGRATION COURTS: “They are not the courts that you think of when you think of our judicial system. . . . He’s pretty blunt about the ways in which the immigration court system is highly dysfunctional,” Says Tea In Her Intro!

Editor’s Note – July

Dear Reader,

For this month’s Think Table issue, we delve into the dysfunctional U.S immigration court system. The U.S. constitution states that our judicial system is a ‘separate but equal part’ to our democracy. But immigration courts have nothing to do with that. They fall under the Department of Justice, and immigration judges have a boss, the Attorney General. As we’ve seen in recent times, that can be a highly politicized position. Additionally, the lack of technology and the ever-growing backlog of cases leave many immigrants and asylum seekers waiting an average of two years just to schedule a court proceeding!

For this issue, we spoke with Judge Paul Schmidt, a former federal immigration judge. He’s pretty blunt about the ways in which the immigration court system is highly dysfunctional.

We hope you enjoy this issue as much as we do.

Téa

Here’s a link to the “video short:”

https://www.youtube.com/watch?v=QDDV83vSuHY

Here’ the “complete issue” which contains a reprint of an article from Sarah Pierce“Obscure but Powerful: Shaping U.S. Immigration Policy through Attorney General Referral and Review.”

https://immigrantfood.com/the-think-table/

And here’s the terrifically talented Tea:

Tea Ivonovic — Tea Ivanovic
Chief Operating Officer
ImmigrantFood.com
PHOTO: Immigrant Food

Born in Belgium to parents from the former Yugoslavia and recruited to the United States by Virginia Tech’s Division 1 Varsity tennis team, Téa calls herself an immigrant squared. She still can’t figure out if Serbian, Flemish or English is her native language – she speaks all of them equally. Her professional career includes creating and implementing strategic communications for international policy and politics at a Washington D.C. think tank, and global financial matters at a financial public and media relations firm. Téa was the first Washington Correspondent for Oslobodjenje, Bosnia and Herzegovina’s oldest newspaper and leading news outlet in the Western Balkans. She graduated with a master’s degree from the Johns Hopkins’ School of Advanced International Studies (SAIS).

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

Yeah, I’m pretty blunt! But, this is a totally screwed up system that threatens our democracy!

So, many of us out here in the NDPA think it’s a dire emergency, even if Judge Garland and the Biden Administration prefer to ignore the obvious and shun the immediate solutions!

Judge Garland’s failure to implement basic constitutional, personnel, and management reforms @ EOIR is undermining justice in America and tarnishing his reputation. Also, it’s potentially killing innocent folks. Sure sounds like a “national Constitutional emergency” to me!

Thanks to Tea for making this “accessible” report on a huge, largely unaddressed, democracy threatening problem. Tell Judge G to fix EOIR now!

🇺🇸Due Process Forever!

PWS

07-01-21

GARLAND’S BIA, OIL “TAKE IT ON THE NOSE” AGAIN: 2d Cir. “Slam Dunks” Matter of J.M. Acosta, 27 I&N Dec. 420 (BIA 2018) (finality of conviction): “The BIA’s burden-shifting scheme and its accompanying evidentiary requirement amounts to an unreasonable and arbitrary interpretation of the IIRIRA.”

Casey Stengel — “Hey Judge Garland! Why not put some REAL judges who can ‘play this game’ into your lineup? What’s with the ‘minor league roster’ left over from the guys who couldn’t shoot straight?”
PHOTO: Rudi Reit
Creative Commons

Here’s the full decision in Brathwaite v. Garland:

https://www.ca2.uscourts.gov/decisions/isysquery/1284dac9-6e02-4262-ae63-657649702452/1/doc/20-27_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/1284dac9-6e02-4262-ae63-657649702452/1/hilite/

Court summary:

Petitioner Aldwin Junior Brathwaite petitions for review of an order of removability, entered by the Honorable Joy A. Merriman, U.S. Immigration Judge (“IJ”), on June 11, 2019, and approved by the Board of Immigration Appeals (“BIA”) on December 11, 2019. Because the BIA’s decision is premised on an unreasonable construction of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), we GRANT the petition for review and REMAND the matter to the BIA for further proceedings consistent with this opinion.

PANEL: CALABRESI, RAGGI, AND CHIN, Circuit Judges.

OPINON BY: Judge Calabresi

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

Man, even with all the ridiculous “built in tilt” favoring Executive interpretations in Chevron, the BIA still blew it! Normally, in their attempt not to burden their comfortable lives with difficult questions of law, the Article III’s will find that any minimally rational interpretation of an ambiguous provision is “good enough for Government work” under Chevron. But, the BIA couldn’t even clear that “low hurdle!” Simply amazing!

Particularly so when you think that one of the (bogus) justifications often given for “Chevron task avoidance” by the Article IIIs is the “superior expertise” of the Executive adjudicators, clearly a mirage in the case of the BIA and EOIR! At least over the past four years, the primary “expertise” for being selected for an EOIR judgeship has been past government experience, preferably in prosecution, a willingness to check the “deny box,” and ability to crank out the required minimum number of final orders of removal without thinking too much, rocking the boat, or, heaven forbid, actually vindicating the rights of migrants over the wishes of “The Partners” at DHS Enforcement! What a total sham that Garland is now presiding over!

Two years of litigation to “get back to ground zero!” And, you wonder why Garland’s Immigration Courts continue to careen out of control and generate backlog faster than they do positive legal guidance and best practices?

At core, courts are about problem solving, and judges are supposed to be “expert practical problem solvers.” Try to unearth those essential qualities in the disgracefully flawed “judicial” hiring practices at EOIR since 2000!

I note that no “outside expert” has been appointed to the BIA since before the 2000 election. Those few who were there in 2000 were rapidly “purged” by Ashcroft, sending the strong message that “expertise and independent voting” will be “career limiting and threatening” at the BIA.

That was followed by thoroughly rotten “jurisprudence” from the BIA that actually provoked widespread outrage among the Article IIIs at the time. The outcry became so loud, that finally even the Bush II Administration had to “tone down” the anti-immigrant rhetoric and abusive treatement of migrants and their attorneys in Immigration Court that Ashcroft’s “purge” engendered and encouraged. Of course, in doing so, DOJ officials disingenuously blamed the Immigration Judges rather than the “perps” in their own ranks who had declared “open season” on migrants’ rights and human dignity.

Not surprisingly, bad, biased hiring practices, which have intentionally excluded and grossly undervalued the most promising expert problem solvers from outside government bureaucracy, have produced a dysfunctional morass at EOIR. The lack of that basic recognition, even from a recently retired Federal Appellate Judge who should know better, is destroying the foundations of our justice system! Enough already! We need, American Justice needs, progressive reforms at EOIR! NOW, not sometime off in the indefinite future!

Yup, there might be problems with an appellate board that almost always tries to skew things against individual applicants. Rushing to crank out those final orders of removal and pushing already overwhelmed IJ’s to “just pedal faster” might not be a very good “strategy.” And, the lack of professional training, competent judicial administration, expert guidance from the BIA, and unwillingness to implement best practices further deteriorates the Immigration Courts every single day.

While fundamental improvements in personnel and administration at EOIR are well within Garland’s reach, he seems relatively uninterested in taking the bold, courageous actions necessary to restore due process. So, litigating his ludicrously broken, unfair, and dysfunctional system to a standstill, while supporting legislation to get an independent court, appear to be progressive advocates’ only viable options at this point.

This issue is likely to end up in the Supremes. In the meantime, however, there should be lots of backlog-building remands in the Second Circuit. And, who knows whether the BIA will get it right this time around. Even after court remands, their record isn’t particularly encouraging.

The BIA probably will have to wait for OIL, their political handlers at DOJ, and DHS enforcement to “signal” what the “preferred result for litigating purposes” is before venturing forth on another precedent. Does this sound like “fair and impartial adjudication” under Matthews v. Eldridge? No way! So why is EOIR continuing to operate as a “Constitution free zone” under Garland?

It’s past time for Garland to pull the plug and give progressive experts a chance to rescue his dysfunctional court system and save many of the individuals caught up in this never-ending due process nightmare! When will they ever learn, when will they ever learn?

Much to the shock, consternation, frustration, puzzlement, and horror of progressive advocates who helped him replace Billy Barr as AG, it’s been three continuous months of “Amateur Night @ EOIR” under Judge Garland! Predictably, many Article IIIs haven‘t been enthralled with this performance! How many cases will be remanded from the Article IIIs and how much more backlog will be unnecessarily generated before Garland wakes up and pays attention?
PHOTO: Thomas Hawk
Creative Commons
Amateur Night

🇺🇸Due Process Forever!

PWS

06-25-21

THE EVER-AMAZING NICOLE NAREA @ VOX “GETS IT” — Too Bad The Folks Running Immigration Policy Don’t! — “Knowledge about US deportation and detention policy didn’t have any significant effect on their intentions to migrate. . . . it made them more likely to think outcomes and legal procedures in the American immigration system are unfair.”

https://www.vox.com/policy-and-politics/22451177/biden-border-immigration-enforcement-detention-deportation

Nicole writes @ Vox News:

President Joe Biden has taken some steps toward reversing his predecessor’s legacy of broad, indiscriminate immigration enforcement, including a recent announcement that it will no longer detain immigrants at two locations under scrutiny for alleged abuses.

But Republicans are adamant that increased immigration enforcement be a prerequisite to any broader immigration reform.

“There’ll be no immigration reform until you get control of the border,” Sen. Lindsey Graham (R-SC) told Roll Call last month.

There are now nearly 40 percent more people in immigration detention compared to when Biden first took office, and his administration is continuing to turn away most migrants arriving on the border under pandemic-related restrictions put in place by his predecessor, President Donald Trump, which have led to the expulsions of more than 350,000 people this year alone.

But research shows that the threat of detention and deportation in the US doesn’t dissuade migrants from making the journey to the southern border, especially if they are victims of violence and may be seeking to escape the “devil they know” in their home countries.

“Managing migration at the border, particularly the kind of migration we’re seeing now, from a strictly deterrence, enforcement lens is just not sustainable in the long run and is not having the impact that people think it should have,” Theresa Cardinal Brown, managing director of immigration and cross-border policy at the Bipartisan Policy Center, said. “That’s why we need to rethink our paradigm for how we talk about migration and everything that we do at the border.”

. . . .

Knowledge of US immigration detention, however, did have an unintended effect on survey takers in Ryo’s experiment — it made them more likely to think outcomes and legal procedures in the American immigration system are unfair. That is worrisome, given that perceptions of fairness are significant predictors of people’s willingness to obey the law and cooperate with legal authorities, Ryo said.

“We really ought to be concerned about the extent to which generating these kinds of perceptions of unfairness can backfire in terms of more people disregarding our laws and undertaking that dangerous journey in order to get to our border and try to cross it,” she added.

. . . .

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

First, let me congratulate Nicole on her spectacularly high level reporting and mastery of the English language: Clear, accessible, well-organized, informative, persuasive. Compare Nicole’s prose with the vapid, often misleading nonsense and gibberish spouted by legislators, government officials, bureaucrats, and right wing White Nationalist shills of all types. Just yesterday, Trump and his pathetic “wannabe” Greg Abbott were down at the border spouting their unadulterated, fact-free, racist blather and restrictionist nonsense (when Trump wasn’t rambling on incoherently about the “Big Lie” or himself). I encourage everyone to read Nicole’s full article at the link!

“Enforcement only doesn’t work” has been one of the key “themes” of Courtside since “Day 1.” The answer has also been clear — due process, fundamental fairness, racial equity, practical scholarship leading to durable solutions.

The converse of “enforcement only doesn’t work” is also true: A more realistic, more generous legal immigration system that advances due process and equality while taking advantage of “market factors” that attract and drive migration would also lead to more efficient and effective enforcement. Many, perhaps the majority, of those we are now wasting time and money on cruel and ultimately futile attempts to detain, deter, and remove would actually be a huge benefit to our nation if they were allowed to migrate legally on either a permanent or temporary basis.

I’ve been saying for a long time now that convincing folks that our legal system is basically bogus — falsely promising a fairness and dignified treatment we aren’t delivering — merely serves to drive migrants to enter the “extralegal” or “black market” system that helps support our economy. The real “beneficiaries” of “mindless immigration enforcement” and a dysfunctional legal system are smugglers, cartels, and exploitative employers. Also, obviously, corrupt GOP politicos benefit from having a permanent, disenfranchised, traumatized, largely non-White “black market labor pool” to prop up their economy while serving as an easy target to “whip up” their racist base.

Bad policies, driven by ignorance, myths, bias, cowardice, and racism will continue to produce lousy results — for the migrants and for our nation. Smarter, more courageous, more intellectually honest legislators and public officials are necessary. Whether voters will be wise enough to elect them remains to be seen.

🇺🇸Due Process Forever!

PWS

07-01-21

THE GIBSON REPORT — 06-28-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group!

TOP NEWS

Migrant youth describe desperation to leave large shelters

AP: The children were interviewed by immigrant advocates from March to June, and their accounts were filed late Monday with a federal court in Los Angeles that oversees a longstanding settlement governing custody conditions for children who cross the border alone.

Driven by pandemic, Venezuelans uproot again to come to US

WaPo: Many of the nearly 17,306 Venezuelans who have crossed the southern border illegally since January had been living for years in other South American countries, part of an exodus of millions since President Nicolás Maduro took power in 2013.

Biden admin won’t oppose bid to revive immigration judges union

Reuters: DOJ’s Executive Office for Immigration Review (EOIR) on Friday withdrew its opposition to the National Association of Immigration Judges’ motion for reconsideration of the November ruling, which said the judges were management employees who cannot unionize under federal law.

U.S. border arrests top 1 million in fiscal year 2021

Reuters: At the current pace, the total border arrests for the fiscal year, which ends on Sept. 30, would be the highest since 2000, when nearly 1.7 million migrants were apprehended by U.S. authorities.

Touring the Border, Harris Asked Questions, and Had Few Answers

NYT: Advocates pushed the vice president to end Title 42, a Trump-era rule that allows the government to expel migrants for public health reasons.

Biden administration forces out Border Patrol chief, a supporter of Trump’s policies.

NYT: The Biden administration is forcing out the chief of the United States Border Patrol, Rodney S. Scott, who took over the agency during the final year of the Trump administration, a Department of Homeland Security official said on Wednesday.

U.S. planning to evacuate thousands of interpreters from Afghanistan

Politico: The plan is to use the Special Immigrant Visa category to process the interpreters once they’re moved to a third country, likely to happen in August.

NJ Senate Votes To End Immigration Detention

Law360: New Jersey is on track to join California and become the first East Coast state to ban U.S. Immigration and Customs Enforcement detention facilities following a vote Thursday.

U.K. wants to send asylum seekers to offshore centers after Denmark passes similar law

WaPo: Downing Street is even exploring sharing a center in Africa with Denmark, the Times of London reported.

LITIGATION/CASELAW/RULES/MEMOS

Justices Vet Court Review Of Non-Discretionary BIA Orders

Law360: The U.S. Supreme Court on Monday agreed to assess an Eleventh Circuit decision holding that courts lack authority to review “non-discretionary” determinations by the Board of Immigration Appeals related to findings of inadmissibility.

High Court Wraps Up Moot ‘Remain In Mexico’ Suit

Law360: The U.S. Supreme Court undid two lower court rulings that blocked a Trump-era asylum policy Monday, deeming an injunction on the Migrant Protection Protocols moot three weeks after President Joe Biden formally ended the program.

BIA Remands for IJ to Determine Qualification for “Simple Possession” Exception

The BIA sustained the appeal and remanded to allow the IJ to evaluate if the respondent qualifies for the “simple possession” exception to §245(h)(2)(B) under the circumstance-specific approach. Matter of Moradel, 28 I&N Dec. 310 (BIA 2021) AILA Doc. No. 21062335

1st Circ. Won’t Nix Its Ruling On ICE Courthouse Arrests

Law360: The First Circuit stood by its decision to wipe a lower court ruling that had blocked federal immigration authorities from making arrests in and around Massachusetts courthouses, ruling Thursday that the Biden administration’s decision to curb many such arrests does not render the case moot.

CA3 Upholds BIA’s Denial of Motion to Reopen CAT Claim Based on Changed Country Circumstances in Jamaica

The court found that the BIA did not abuse its discretion in dismissing petitioner’s motion to reopen as untimely, finding that her motion did not contain any evidence that Jamaican officials would likely acquiesce to her torture if she were returned to Jamaica. (Darby v. Att’y Gen., 6/17/21) AILA Doc. No. 21062533

5th Circ. Nixes Mentally Ill Pakistani Man’s Asylum Bid

Law360: The Fifth Circuit on Thursday refused to reinstate the asylum status of a schizophrenic Pakistani man who called his brother and threatened to kill up to 50 people in Amarillo, Texas, rejecting his counsel’s arguments that his threat wasn’t serious because he’s mentally ill.

CA7 On Niz-Chavez: Avila De La Rosa V. Garland

LexisNexis: Avila de la Rosa v. Garland “Cristian Avila de la Rosa received a procedurally defective Notice to Appear for his immigration removal proceedings, and (unlike many others) he made a timely objection to that Notice. The immigration judge, however, disregarded Avila’s objection, and the Board of Immigration Appeals thereafter insisted that Avila was not entitled to relief unless he could demonstrate prejudice.

CA9 On Voluntary Departure: Zamorano V. Garland

LexisNexis: Zamorano v. Garland “Victor Luis Angeles Zamorano, a native and citizen of Mexico, seeks review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal from a decision of the immigration judge (IJ) that denied his application for voluntary departure. Because the IJ failed to evaluate the factors weighing in favor of granting Zamorano voluntary departure, we grant the petition and remand.

9th Circ. Faults Credibility Finding For Asylum-Seeker

Law360: The Ninth Circuit ordered the immigration courts on Tuesday to reconsider a Ukrainian asylum-seeker’s request for protection, finding a series of errors with a judge’s ruling that the migrant wasn’t credible.

CA9 Finds Changed Country Conditions Exception Applies Where Personal Circumstances Changed in a Way Entirely Outside Petitioner’s Control

The court held that while a self-induced change in personal circumstances does not qualify for the changed country conditions exception, that principle does not apply when changed country circumstances, while personal to petitioner, are entirely outside her control. (Kaur v. Garland, 6/21/21) AILA Doc. No. 21062831

Obscure DHS Databases Make FOIA Impossible, Suit Says

Law360: An immigrant advocacy group wants to know more about the U.S. Department of Homeland Security’s “obscure” network of databases and how immigration agencies store their enforcement data, but alleges that the agencies are dodging its records request in violation of the Freedom of Information Act.

DOJ Issues Guidance Regarding Adjudication of Motions to Reopen in MPP Cases

DOJ issued guidance to all immigration court and BIA personnel with information regarding the adjudication of motions to reopen in Migrant Protection Protocols (MPP) cases. AILA Doc. No. 21062437

DHS Announces Expanded Criteria for MPP-Enrolled Individuals Who Are Eligible for Processing into the United States

DHS announced that it will expand the pool of MPP-enrolled individuals who are eligible for processing into the United States. Beginning June 23, 2021, DHS will include MPP enrollees who had their cases terminated or were ordered removed in absentia. AILA Doc. No. 21062332

Update Regarding VSC Address Change Announcement

In response to member inquiries, AILA updated its practice alert to inform members that the new zip code for Essex Junction is correct, however, it appears that some courier services do not yet recognize the new zip code, which goes into effect on 6/25/21. AILA Doc. No. 21061642

USCIS Will Now Provide Self-Service Kiosks for BIA and EOIR Payments

USCIS announced that, as of June 2021, will allow attorneys and accredited representatives to use self-service kiosks in USCIS field offices to pay the fees for filing an appeal of a DHS officer decision to the BIA or EOIR immigration court motions. AILA Doc. No. 21062231

RESOURCES

AILA: Conversations with Discipline Counsel Podcast Series

AILA: Country Profile: Kenya (June 2021)

AILA: Country Profile: Rwanda (June 2021)

ASISTA: ICYMI – Important Policy & Practice Updates, June 2021

CLINIC: Supreme Court Addresses Asylum Credibility in Garland v. Dai

CLINIC: Biden Administration Announces New Prosecutorial Discretion Policy

CLINIC: USCIS Policy Manual Updates on Naturalization and False Claims to Citizenship and Unlawful Voting

CLINIC: Practice Advisory: Adjustment Options for TPS Beneficiaries

CRS: Iraqi and Afghan Special Immigrant Visa Programs

ILRC: U Visa Derivatives Age-Out Practice Advisory

ILRC: Overview and Cost of Common Immigration Remedies for Youth

NILA: ADJUSTMENT OF STATUS FOR TPSHOLDERSAFTERSANCHEZV.MAYORKAS

NIP/NLG: Issue Brief: Qualified Immunity in Immigration

NIP/NLG: Borden v. United States: Supreme Court Limits Scope of “Crimes of Violence”

NIP/NLG: Advocating for Clients in Removal Proceedings Using the OPLA Prosecutorial Discretion Memo

EVENTS

6/29/21 Immigrant eligibility for public benefits

6/30/21 “Objection!” How to Object Effectively in Immigration Court

6/30/21 Immigration Update – June 2021

7/7/21-7/21/21 Webinar Series: Navigating Refugee and Asylee Issues

7/8/21-7/29/21 Webinar Series: Overview of Removal Proceedings and Orders of Removal

7/9/21 FOIA Requests with DHS

7/15/21 Using litigation to end statelessness

7/15/21 Build Bridges, Not Walls: A Journey to a World Without Borders

7/15/21 Hot Topics in Crimmigration: The Modified Categorical Approach and State Decriminalization and Reclassification Statutes

7/16/21 Review of Attorney General Decisions and BIA on Asylum In Effect and Practice Tips

7/18/21 Prosecutorial Discretion in Removal Proceedings

7/21/21 The ethics of dual representation (child and guardian) in SIJS practice

7/21/21 Ethical Considerations for Immigration Law

7/21/21 Webinar: Litigation Updates: Implications for Survivor Representation

7/22/21 PLI: Defending Immigration Removal Proceedings 2021

7/26/21 Understanding Parole

9/23/21 Representing Children in Immigration Matters 2021: Effective Advocacy and Best Practices

ImmProf

Monday, June 28, 2021

National Association of Immigration Judges

Supreme Court Grants Certiorari in Judicial Review/Adjustment of Status Case

Immigration Article of the Day: Terrorism and the Inherent Right to Self-Defense in Immigration Law by Faiza W. Sayed

Nolan Rappaport: “Border crisis deepens as governors assert control”

Immigration and Customs Enforcement’s #Pride tweet conceals a violent history

Sunday, June 27, 2021

Kenya To Expel Refugees?

Saturday, June 26, 2021

The Last Days of Immigrant Heritage Month

Medical experts urge coordinated vaccine strategy in ICE detention

Friday, June 25, 2021

“World’s Happiest Country” Seeks Migrants

On border visit, Vice President Harris cites ‘progress’ in ‘tough’ situation

Immigrant Heritage Month and a George W. Bush Presidential Center Podcast: The Story of U.S.

Thursday, June 24, 2021

From the Bookshelves: Questions for Ada by Ijeoma Umebinyuo

UCTV: Challenges & Opportunities in Central America’s Northern Triangle Region

Senator Tammy Duckworth advocates for noncitizens in military

ACLU Report: Involuntary Medical Procedures, Force-Feeding, Solitary Confinement, and Other Forms of Retaliation Against Hunger Strikers

Wednesday, June 23, 2021

EB-5 Rule, That Increased Investment Requirements, Struck Down

Casebook Supplement for Immigration and Nationality Law (Updated June 24)

Black Immigrants Are Still Fighting Racism In The U.S. Immigration System

From the “You Can’t Win” Category: “Right-Wingers Who Demanded Kamala Harris Visit the Border Are Now Mad She’s Going”

Guest Post: Two Days at the Nogales Border by Raquel Aldana (Revised June 24)

In Expert Defense of DACA

Tuesday, June 22, 2021

Your Playlist: MF DOOM

Denied MPP Asylum Applicants to Get a Second Chance

The dip in the US birthrate isn’t a crisis, but the fall in immigration may be

Supreme Court dismisses moot ‘Remain in Mexico’ case

Monday, June 21, 2021

Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Canada

President Biden’s program for migrant children doesn’t go far enough

President Biden Will Use Border Wall Funding for Safety and Environmental Protections

Lady Liberty’s “Little Sister,” on its Way to the U.S. from France

Ending, not extending, the rocket docket in immigration court

Immigration Article of the Day: Migrant Protection Protocols and the Death of Asylum by Austin Kocher

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

Thanks for keeping us up to date, Elizabeth!

🇺🇸Due Process Forever!

PWS

07-01-21

⚖️OF NOTE: Individual Wins Appeal, Gets Positive Guidance From Garland’s BIA! – Matter of S-L-H- & L-B-L-, 28 I&N Dec. 318 (BIA 2021)!

The Board of Immigration Appeals has issued a decision in Matter of S-L-H- & L-B-L-, 28 I&N Dec. 318 (BIA 2021).

(1) Immigration Judges may exercise their discretion to rescind an in absentia removal order and grant reopening where an alien has established through corroborating evidence that his or her late arrival at a removal hearing was due to “exceptional circumstances” under section 240(e)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(e)(1) (2018), and, in doing so, should consider factors such as the extent of the alien’s tardiness, whether the reasons for the alien’s tardiness are appropriately exceptional, and any other relevant factors in the totality of the circumstances.

(2) Corroborating evidence may include, but is not limited to, affidavits, traffic and weather reports, medical records, verification of the alien’s arrival time at the courtroom, and other documentation verifying the cause of the late arrival; however, general statements—without corroborative evidence documenting the cause of the tardiness—are insufficient to establish exceptional circumstances that would warrant reopening removal proceedings. Matter of S-A-, 21 I&N Dec. 1050 (BIA 1997), reaffirmed and clarified.

PANEL: GREER, O’CONNOR, and GOODWIN, Appellate Immigration Judges.

OPINION: Judge Deborah K. Goodwin

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

Interesting points:

1) This case “clarifies and reaffirms” Matter of S-A-, 21 I&N Dec. 1050 (BIA 1997) a “Schmidt Board” en banc precedent written by Judge Gerry Hurwitz. My Round Table colleague Judge Lory Rosenberg and I dissented. Here is my dissent:

DISSENTING OPINION: Paul W. Schmidt, Chairman

I respectfully dissent.

On appeal from the denial of his motion to reopen in absentia exclusion proceedings, the applicant has submitted an affidavit stating that the

1051

Interim Decision #3331

Interim Decision #3331

information furnished in support of his earlier motion to reopen on notice grounds was not authorized by him. I would not reject this contention and find the applicant, in effect, incredible by reason of inconsistent statements without giving him an opportunity for an evidentiary hearing on the truth of his contention that he did not authorize the inconsistent representations contained in his earlier motion. Cf. Arrieta v. INS, 117 F.3d 429 (9th Cir. 1997) (finding remand appropriate to give the respondent an opportunity to provide evidentiary support for statements made in an affidavit accompanying a motion to reopen).

In his first motion to reopen and on appeal, the applicant, who lives a distance of several hours from the Immigration Court, claims that he was 20-30 minutes late for his hearing because of traffic congestion. If this were in fact the case, the interests of justice and the statutory purpose of providing fair hearings to aliens before removing them from the United States would have been better served by the Immigration Judge exercising his available discretion to hear the case at another time during the day. See Romano-Morales v. INS, 25 F.3d 125 (2d Cir. 1994)(stating that rules regarding in absentia hearings should be carefully applied to avoid conflict with statutory or constitu- tional rights); Matter of W-F-, 21 I&N Dec. 503 (BIA 1996) (stating that notwithstanding rules governing in absentia hearings, an Immigration Judge retains authority to excuse presence, grant a continuance, or change venue). I am not necessarily convinced that every incidence of tardiness must be treated as an “absence” from the hearing.

I therefore dissent from the decision to dismiss the applicant’s appeal.

Perhaps, in disavowing a “per se” rule on traffic delays, referring to the “totality of the circumstances,” and setting forth some useful criteria to guide practitioners, the panel at least “inched” toward the position Lory and I articulated in our respective 1997 dissents.

2) The “prevailing attorney” in this case, Farhad B. Sethna, Esquire, Cuyahoga Falls, Ohio, was a “regular” before the Arlington Immigration Judges during the years we were responsible for the Cleveland, Ohio docket.

🇺🇸Due Process Forever!

PWS

06-30-21

🏴‍☠️SUPREMES’ GOP MAJ. SLAMS GULAG DOOR SHUT ON REFUGEES IN “WITHHOLDING ONLY PROCEEDINGS” 👎🏽 — “NO BOND HEARINGS FOR YOU, ALIENS!” — Johnson v. Guzmán Chavez (6-3) — Oh, To Be A “Pipeline Builder” Endowed With Legal & Human Rights That Even Elite GOP Supremes Will Recognize!

https://www.washingtonpost.com/politics/courts_law/supreme-court-deported-immigrants-penneast-pipeline/2021/06/29/3e83164e-d8dc-11eb-8fb8-aea56b785b00_story.html

This WashPost headline and Post Supreme Court reporter Robert Barnes’s summary say it all!

Supreme Court rules against immigrants claiming safety fears after deportation and for pipeline builders

By Robert Barnes

June 29 at 5:22 PM ET

. . . .

In the immigration case, the court was considering the rights of a relatively small subset of immigrants: those who were deported once before but reentered the United States illegally because they say they faced threats at home.

At issue was a complex federal law that authorizes the government to detain immigrants and which section of it applies to these types of cases.

One piece of the law says, “the alien may receive a bond hearing before an immigration judge” and thus the chance to be free while proceedings continue, Justice Samuel A. Alito Jr. wrote for the majority. In the other, the immigrant is considered “removed,” and indefinite detention is warranted.

Alito and his fellow conservative justices said it was the second that applied, and the detainees do not get a bond hearing. The court’s three liberals objected.

The case involved people who an immigration officer found had credible fears of danger or persecution in their home countries. For instance, Rodriguez Zometa said he was threatened with death by the 18th Street Gang when he was removed to his home country of El Salvador.

The question of whether the government could hold the immigrants without a hearing before an immigration judge had divided courts around the country. The case was argued before President Biden took office, and lawyers for the Trump administration told the court immigrants were not entitled to a hearing.

Alito said Congress had good reason to be more restrictive with those who came back into the country after being deported. “Aliens who reentered the country illegally after removal have demonstrated a willingness to violate the terms of a removal order, and they therefore may be less likely to comply with the reinstated order” that they leave, he said.

He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

The court’s liberals, Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, saw it differently and would have affirmed the victory the plaintiffs won at the U.S. Court of Appeals for the 4th Circuit in Richmond.

“Why would Congress want to deny a bond hearing to individuals who reasonably fear persecution or torture, and who, as a result, face proceedings that may last for many months or years?” Breyer wrote. “I can find no satisfactory answer to this question.”

The case is Johnson v. Guzman Chavez.

. . . .

Here’s the “full text” of the decision:

19-897_c07d

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

Nice summary, Robert! You can read the rest of Barnes’s report at the link. Indeed, Justice Breyer’s cogent question quoted in the article remains unanswered by the wooden legal gobbledygook in the majority decision, devoid of much understanding of how the dysfunctional Immigration Courts and the DHS “New American Gulag” actually operate and dismissive of what it actually means to be a refugee seeking to exercise legal rights in today’s world.

At issue: The right of non-criminal foreign nationals who have established a “reasonable fear” of persecution or torture if deported to apply for bond pending Immigration Court hearings on the merits of their cases. Getting a bond hearing before an Immigration Judge does not in any way guarantee release; just that the decision to detain or release on bond will be based on the individual facts and circumstances. Individuals released from detention have a much better chance of obtaining counsel and gathering the documentation necessary to win their cases. They are also much less likely to be “coerced” by DHS detention into surrendering viable claims and appeal rights.

Majority’s response: These “aliens” have neither rights nor humanity that any life-tenured GOP-appointed judge is bound to respect.

Alternative: There is a readily available alternative statutory interpretation, adopted by the 4th Circuit and the dissent, that would recognize the human and legal rights of vulnerable refugees seeking legal protection and give them hearings on continuing custody in substandard conditions (in some instances, conditions in the “DHS New American Gulag” fall well below those that would be imposed on convicted felons).

You can’t win ‘em all: The Round Table was one of many organizations filing an amicus brief on behalf of the refugees and in support of the position adopted by the 4th Circuit and the dissent. While we were unsuccessful on this one, at least we are on the “right side of history.”

Creative suggestion: Detainees should incorporate, perhaps as a pipeline company, or better yet a gun rights’ group, so that they would have legal rights and be treated as “persons” (e.g., “humans”) by the Supremes’ GOP majority.

Next steps:

Advocates should prevail on the Biden Administration to change the regulations to give this limited subclass of applicants for protection a chance to seek bond before an Immigration Judge;
Advocates should keep up the pressure on the Biden Administration and Garland to appoint better judges at EOIR: progressive practical experts, who know how to grant legal protection efficiently and fairly and who will establish appropriate legal precedents to help these cases move through the EOIR system on the merits in a timely and fundamentally fair manner consistent with due process. The length of time it takes “Withholding Only” cases to move through the Immigration Courts has lots to do with: unfair, coercive detention practices by DHS; poor judging and bad precedents at EOIR; incompetent “judicial administration” and politicized “Aimless Docket Reshuffling” @ EOIR by DOJ politicos and their EOIR “retainers.”

Long term solution:

Support and vote for progressive legislators who will revise the immigration laws to do away with the unnecessary and wasteful “New American Gulag;”
Vote progressive candidates for President and the Senate: political officials committed to putting better Federal Judges on the bench at all levels — “practical scholars” with real experience representing the most vulnerable in society and who will tirelessly enforce due process, equal protection, human rights, and fundamental fairness for all persons regardless of race, religion, or status; judges who understand and will seriously reflect on the “real life” human consequences of their decisions. Better judges for a better America!

🇺🇸Due Process Forever!

PWS

06-30-21

🛡⚔️BREAKING: ROUND TABLE, ALLIES OUT-JOUST GARLAND’S BIA YET AGAIN! — This Time It’s A Smashing El Salvadoran Asylum Victory @ The En Banc 4th Cir. — Portillo-Flores v. Garland (9-6)

Here it is, opinion by Judge Stephanie Thacker:

Portillo-Flores-4th-ElSal-EnBancThe concurring opinion by Judge James Wynn says:

Generally, when the Board of Immigration Appeals errs, “the proper course . . . is

to remand to the agency for additional investigation or explanation.” Alvarez Lagos v. Barr, 927 F.3d 236, 249 (4th Cir. 2019) (quoting INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam)). “But that is not an invariable rule.” Id. If the record evidence, considered as a whole, “would compel ‘any reasonable adjudicator’ to reach the opposite conclusion, then a remand is unnecessary, and [this Court] will reverse the Board’s finding.” Id. (quoting Cruz v. Sessions, 853 F.3d 122, 130 (4th Cir. 2017)).

II.
Here, as the majority opinion holds, the immigration judge and the Board of

Immigration Appeals erred by applying the wrong legal standards, arbitrarily disregarding relevant evidence, and failing to explain their decisions adequately. See Maj. Op. at 3, 12– 13, 16–18, 20–21, 25–26, 27–33. And based on such errors, the majority vacates the agency’s determination as to each prong of the asylum analysis—persecution, nexus to a protected ground, and government control—and remands for reconsideration. See id. at 3, 18, 21, 27–33. But when all relevant evidence in the record is properly considered under

the correct legal standards, any reasonable adjudicator would be compelled to conclude 35

that Petitioner suffered past persecution as a child and that his membership in his nuclear family was at least one central reason for that persecution.

. . . .

I conclude by adding that Petitioner has been seeking protection in the United States for more than five years. We should not prolong his quest any more than necessary.

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

Hats off to everyone involved in this!

Particular kudos to Judge Stephanie Thacker who wrote the majority and whose vigorous dissent from the wrong-headed panel decision undoubtedly helped secure en banc review. She stuck to her guns!

Judge Stephanie D. Thacker — Honorable Stephanie D. Thacker
U.S. Circuit Judge
Fourth Circuit
Photo From Ballotpedia

Also, much appreciation to Judge James Wynn for his separate opinion 1) calling out the” poppycock” in the dissent; and 2) drawing attention to the highly improper and recurring problem with EOIR keeping deserving asylum seekers dangling for many years while they think of bogus reasons to deny asylum to please their “enforcement masters” at DOJ and DHS. This is neither due process nor justice! No wonder the backlogs are sky high!

Honl. James Wynn — Hon. James Wynn
U.S. Circuit Judge
Fourth Circuit
PHOTO: Wikipedia

As my esteemed Round Table colleague Hon. “Sir Jeffrey” Chase said:

“It’s remarkable how much good law is packed into this one decision.”

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

The corollary to that is: “It’s remarkable how much bad law and poor judicial performance is packed into EOIR’s bungling of these life or death cases which deserve and require both expert judges and fair, timely adjudication in accordance with asylum law and due process.”

When are Garland, Monaco, Gupta, and Clarke finally going to pull the plug on “Club Denial” at the BIA and bring in some real judges who will respect individuals’ civil, constitutional, and human rights, and start setting forth much better precedents that incorporate the wise teachings of folks such as Judge Thacker and Judge Wynn? The latter two jurists certainly appear to understand the Immigration Court system and its many (potentially fixable, but not the way Garland is going about it) flaws and shortcomings much better than anyone in EOIR HQ or on Garland’s staff.

The ongoing travesty of justice @ EOIR and the lives threatened thereby continue to be a national disgrace on Garland’s watch!

🇺🇸Due Process Forever!

PWS

06-29-21

🆘ABOVE THEIR PAY GRADE: VOLUNTARY DEPARTURE & ADJUSTMENT OF STATUS AREN’T “ROCKET SCIENCE” 🚀 — But, Garland BIA’s Failure To Master The Basics Draws Two More Stinging Rebukes From Circuits!

EYORE — Sloppy decision-making and institutional bias in favor of DHS Enforcement remain endemic problems at EOIR that Garland has failed to address. “Eyore” isn’t the only one suffering from this failure to bring progressive reforms to “America’s worst and deadliest courts!” “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

9th Circuit on VD: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/25/19-72893.pdf

“But here there was no indication that the IJ implicitly considered any favorable factors in making its voluntary departure determination.”

1st Circuit on adjustment of status: https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-el-salvador-gang-membership-jurisdiction-hardship-evidence-perez-trujillo-v-garland

“. [T]he government is right that we have no jurisdiction to re-weigh the evidence of hardship. But, a reweighing could only occur if there had been a weighing of that evidence in the first place. And, here, we conclude that there was no weighing of that evidence at all. We thus reject the government’s argument that the BIA, in overturning the immigration judge’s ruling granting Perez-Trujillo adjustment of status, did consider hardship as he contends that it was required to do under Matter of Arai.”

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

Notice a theme here: No need to actually consider the evidence, just deny, particularly when that’s the result demanded by the “partners” over at DHS enforcement? What kind of “court” operates in this manner? Where is the “fair and impartial adjudication” required by Due Process and Matthews v. Eldridge?

Clearly, these are signs of “denial-oriented assembly line decision-making by the BIA.” And, how does Garland explain OIL’s “defense” of weighing and considering factors that NEVER OCCURRED — essentially fabricated? Sounds like intentionally misleading courts to me! THIS is our Department of “Justice” under Garland?

Bias, poor judging, a culture of denial, and political interference with docket management are endemic problems at Garland’s BIA! That’s a prime reason why under DOJ’s “maliciously incompetent” administration and weaponization EOIR has built a still out of control 1.3 million case plus backlog!

Easy cases become endless exercises, as EOIR and OIL waste the time of the Circuits trying to “paper over” shoddy and biased decision-making on the “deportation assembly line.” Cases that should have been favorably resolved years ago instead keep bouncing around the system on “Circuit remands.”

Some then become the victims of “Aimless Docket Reshuffling” by DOJ politicos and their EOIR toadies and never get resolved at all! All these problems are magnified by two-decades of grossly incompetent DOJ/EOIR “management” that has elevated political agendas and bureaucratic nonsense over implementing a functioning e-filing system like every other comparable “court” in America! Due Process and customer service continue to come last at Garland’s EOIR!

DON’T let Garland and Mayorkas claim that the “solution” is more improperly “expedited” special dockets and less due process. NO, NO, NO! The solution is better judges (now, not later), granting more deserving cases rather than “looking for reasons to deny,” better judicial training, positive precedents from a new expert BIA, and an end to bogus “quotas,” stupid and unethical “performance work plans,” and political interference with docket management by DOJ and EOIR HQ!

Without aggressive progressive interventions and a massive infusion of new progressive expert personnel into EOIR, the Immigration Courts will continue to flounder and fail under Garland. Then, in the finest DOJ tradition, looking for a way to cover himself, he and his team will attempt to shift the blame to their victims — hapless, abused respondents and their long-suffering lawyers! Don’t let them get away with it!

Garland’s failure to institute “no brainer” progressive reforms @ EOIR and to replace bad judges is life-threatening and an incredible drag on our entire legal system! Tell him you have had enough! Demand better! Let your voices be heard in protest every day until we get the long overdue, readily achievable, EOIR reforms progressives have worked for and were promised!

🇺🇸Due Process Forever!

PWS

06-29-21

⚖️🗽👍🏼TOUGH, SMART NDPA LITIGATORS DEFEAT GARLAND’S BIA AGAIN — Latest 7th Circuit Beat-Down Of BIA On “Modified Categorical Approach” Also Illustrates Clear Unconstitutionality Of Immigration Courts — NO Unrepresented Individual Would Have Had A Chance Of Producing This Result!

Subject: Illinois burglary

More good news from the Seventh Circuit – generic Illinois burglary is not an aggravated felony nor a turpitude offense!

Parzych v. Garland, __ F.3d __ (7th Cir. June 28, 2021)

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D06-28/C:20-2317:J:Brennan:aut:T:fnOp:N:2726021:S:0

If you congratulate anyone, you might include Hena Mansori, now at Cook County PD office, who represented Chester for years before leaving NIJC (and Diana Rashid handled it after Hena left). It’s not fair that us appellate folks get all the glory.

Regards,

Chuck

Charles Roth

Director of Appellate Litigation

National Immigrant Justice Center

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

Thanks, Chuck. And, congrats to Hena Mansori, Diana Rashid, and you on another great victory!

Unrepresented individuals appearing before non-expert judges “supervised” by a BIA tilted in favor of DHS enforcement is not due process! Yet, that’s what happens every day in Immigration Courts.

Too many of these “courts” are “embedded” in the DHS “New American Gulag,” an inherently coercive environment that makes mincemeat out of fundamental fairness and mocks due process.

Tell AG Garland you’ve had enough of this scofflaw farce! Demand progressive changes starting with a new BIA with progressive expert judges, merit-based judicial selections, universal representation, and an end to Gulag courts and overused televideo “adjudication centers” that dehumanize and mechanize “justice” in a totally improper manner!

🇺🇸Due Process Forever!

PWS

06-29-21

KAKISTOCRACY: Billy The Bigot Barr Gives CYA Interview, Perhaps In Attempt To Save Law License!

Barr Departs — Lowering The Barr by Randall Enos, Easton, CT
Republished By License

Bill Barr Consigliere
Artist: Pat Bagley
Salt Lake Tribune
Reproduced under license

https://u1584542.ct.sendgrid.net/ss/c/atcYNHk4Eh2YdGnwBh-YDCxDIu4OO3SBv2TLoLPFt2eTpAvae7fHQQN2d_SDia6UQbQMe94On-beG5oDl7xvTP4QLcPK6rzmOKrq-bY0_AB0gbaGO4UoNJkuN1E11z2G_0u3z0IHvPah30HQBG80ceR05_osO7-fKevf5maXWBmIuPADLuoLLC3WKCtXFpVntBozJaJ6MBdvAvn5Bz4kYZu_hKw1spjA3P3RuJD2shs/3d5/C1BIO3ORRy-VZMckpvAtNQ/h4/wbnioxNkjTzjHaWMl6mT1586GErNsh1e87hY1TA37K8

From The Daily Kos:

In The Atlantic, journalist Jonathan Karl gives us a short look at Trump attorney general William Barr’s last weeks in power according to William Barr himself, who was kind enough to grace Karl with a series of interviews out of the innate goodness of his heart. Oh, and because Barr is now seen by many as the most thoroughly partisan and corrupt attorney general in a generation, which is going to seriously cut down on future speaking fees if he can’t figure out how to massage the record back into something vaguely defensible.

The actual news out of it is Not Damn Much, but this is a good opportunity to revisit the First Rule Of News Consumption: Be aware of the source. From the nation’s top powerbrokers to man-on-the-street interviewees, anyone talking to a reporter about their own doings is going to tell that reporter the most flattering version of events they think they can get away with. Many of the most important details about what Trump and his core team did in their attempts to overturn a United States election remain murky because those most in the know, like ex-House Republican turned chief of staff Mark Meadows, are clamming up.

. . . .

Great, super. So again we have a situation in which everyone around Trump was pretty damn certain he had gone off the rails, jumped the trolley, sprung a brain-leak, and had become devoid of marbles but nobody in government, from Secret Service on down, was willing to toss him in a burlap sack, tie it shut, and declare that Mike Pence was taking charge because the sitting president had developed a serious case of bananapants.

. . . .

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

You an read the full story at the link.

The key takeaway for progressives is that Barr is the guy that AG Merrick Garland HONORED by appointing 17 of his flawed selections to an Immigration Judiciary already reeling from a one-sided infusion of judges with questionable qualifications into a system weaponized against individual asylum seekers, other migrants, and their lawyers.

So far zero (0) progressive judges from the community of experts and advocates who helped show Barr the exit and elect Biden and Harris have been tapped for these “life or death” quasi-judicial positions. Rumor has it that’s about to change. But, that will hardly restore scholarship, due process, and balance to a disastrously “out of wack” deportation railroad!

Due Process Forever!

PWS

06-28-21

HISTORY: YOUNGER THEN THAN NOW! — “Sir Jeffrey” Chase & Me @ The International Association of Refugee Law Judges’ Seminar in Nijmegen, The Netherlands, 1997

“Sir Jeffrey and Me — “Sir Jeffrey & Me
Nijmegen, The Netherlands 1997
PHOTO: Susan Chase

Well, we’re not as young as we were. But, we’re still working together to raise awareness and advance the principles of the U.N.Convention & Protocol on the Status of Refugees and to restore due process and fundamental fairness to the dysfunctional Immigration Courts through all of our amazing colleagues on the Round Table of Former Immigration Judges.

🇺🇸Due Process Forever!

PWS

06-27-21

“DUH” OF THE DAY: GOP WHITE NATIONALIST RACISM & STUPIDITY, BIDEN ADMINISTRATION BUMBLING LEAD TO ONGOING BORDER CHAOS: “For people like Medina, neither restrictive immigration policies nor dangerous journeys through several countries, border walls, or even statements from politicians deter them from seeking to rebuild their lives in the United States.”

https://www.dallasnews.com/news/immigration/2021/06/25/threat-of-death-in-their-homelands-continues-to-push-migrants-toward-us-mexico-border/

Maria Ramos Pacheco reports for the Dallas Morning News:

CIUDAD JUÁREZ, Mexico — While Vice President Kamala Harris said Friday the goal of her trip to El Paso was to understand the “root causes” of the rising influx of migrants from recent months, just across the border Honduran migrant Manuel Medina had a simple explanation for why thousands of people from other countries will continue to try to reach the United States: To stay alive while fleeing countries where their families are threatened by crime and violence.

“I did not leave my country and my wife because I wanted to. [Rising] crime forced me to leave everything; the only thing I want is for my family and me to be safe,” said Medina, 37, who left Honduras in May 2019 after receiving threats from gang members.

Amid a chorus of criticism coming mainly from Republican politicians, Harris made her first trip to the U.S. Southern border flanked by the Secretary of Homeland Security, Alejandro Mayorkas; Sen. Dick Durbin, D- Ill; and El Paso Rep. Verónica Escobar.

Amid a chorus of criticism coming mainly from Republican politicians, Harris made her first trip to the U.S. Southern border flanked by the Secretary of Homeland Security, Alejandro MayorkasSen.

For people like Medina, neither restrictive immigration policies nor dangerous journeys through several countries, border walls, or even statements from politicians deter them from seeking to rebuild their lives in the United States.

Medina has lived for two years in this city’s El Buen Samaritano shelter, managed by a religious organization, along with his 15-year-old son Nahúm Medina. Their asylum petition was initially rejected in 2019 and he stayed in Ciudad Juárez under the Migrants Protection Protocols, waiting for a second chance.

The MPP or “Remain in Mexico” program was created in 2019 by the Trump administration, which forced people seeking asylum to remain in Mexico. As of May, there were 71,002 active cases.

. . . .

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

Read the rest of Maria’s article at the link.

Desperate people do desperate things! Duh!

You’ve heard it before on Courtside:

https://immigrationcourtside.com/2021/06/24/%e2%9a%a0%ef%b8%8f%f0%9f%9a%b8v-p-harris-is-going-to-the-border-she-should-talk-with-the-real-victims-of-her-governments-illegal-wrong-headed-immoral-and-ineffective-border-deterrence-p/

Indeed, since the day of inception in Dec. 2016, Courtside has been very consistent in speaking truth to bigots and misguided inept policy makers:

https://immigrationcourtside.com/2016/12/31/family-detention-raids-expediting-cases-fails-to-deter-scared-central-americans/

Restrictionism, racism, nativism, cruelty, and scofflaw behavior will only continue to make things worse. And, AG Merick Garland, staffing your “courts” with “Miller Lite” holdovers and Trump toadies won’t stop the downward spiral of American justice on your watch!

🇺🇸Due Process Forever!

PWS

06-27-21

😎👍🏼🧑🏽‍⚖️GOOD NEWS FROM THE NAIJ — DOJ Drops Opposition To Reconsideration Of Decertification!

June 25, 2021

EOIR Withdraws Opposition to
NAIJ Motion to Reconsider,
Does Not Oppose Motion to Remand

Judges:

In a filing this morning, EOIR withdrew its opposition to our motion to reconsider before the FLRA and agreed to a remand to the Regional Director. Here’s their brief.

This is a major step forward in our fight against the previous administration’s effort to decertify NAIJ. NAIJ thanks EOIR and DOJ for taking this important step.

EOIR’s actions come after NAIJ filed with the FLRA earlier this week a Motion to Remand and for Stay. NAIJ’s motion was part of a coordinated effort by NAIJ and our parent union IFPTE to bring the importance of the decertification issue to the attention of the highest levels of this administration. It looks like we succeeded.

Although there are many reasons for optimism, this fight is not yet over. The decertificaton matter remains pending before the FLRA. As we are well aware, the FLRA is still composed of the same members who, over a vigorous dissent, reversed the decision of the FLRA Regional Director who had previously upheld our right to unionize. We are closely monitoring the situation with our litigation team to assure this favorable progress continues until our case is definitively resolved, once and for all.

Thank you for your unwaivering support of NAIJ.

We will keep everyone updated with any further developments.

The NAIJ Board

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

As pointed out by the NAIJ Board, it’s not over till it’s over! But, definitely a big step in the right direction for the NAIJ, the Garland DOJ, and the Biden Administration!

FULL DISCLOSURE: I am a retired member of the NAIJ!

🇺🇸Due Process Forever!

PWS

06-26-26

🇺🇸⚖️🗽DT-21 SPEAKS AGAIN! — All The News “They” Don’t Want You To Hear From Deep Inside The Bowels Of The Dysfunctional EOIR Bureaucracy! — Garland Moves In Slow-Mo As Democracy Crumbles & Voldemort’s Power Grows!🆘

Parking Garage — Is DOJ/EOIR “Management” staking out every one of these in the DELMARVA area to catch “DT-21?” Is that why they don’t have time to reform EOIR? — Creative Commons

The EOIR Tower in Falls Church might appear shiny from the outside, but inside it’s still just about as opaque as the lives of those caught up in Garland’s Star Chambers!

1) The Richmond video “court” is opening soon to hear more cases in secret without public access.

2) Several IJs working from home are now hearing cases by VTC from their residences. But, there’s no provision for those hearings to be open to the public contrary to the regulations. More VTC just means more problems.

3) EOIR has hired 10 or 11 new IJs but hasn’t disclosed the names publicly. Can “Dandy Dan” Kowalski & other news-hounds smoke out the names again?

4) At least one inexcusable, major setback on long overdue progressive judicial leadership @ EOIR! Unfortunately, the AG decided not to remove Wetmore as Chairman and his probation period has passed.

So, are we stuck with a Miller/Barr/Trump toady “plant” in charge of a “court” that probably has more to do with racial and gender justice in America than any “judicial” (using the term lightly) body short of the Supremes and that “gets it wrong” — often dead wrong — in well-publicized bad opinions “outed” by the Article IIIs on a regular basis? No, doesn’t make sense!

Progressives, the NDPA, and anybody who cares about due process and equal justice in America should be raising hell with the Administration until we get the change we voted for!

“Passing probation” doesn’t guarantee anyone a particular SES position or a quasi-judicial position at EOIR. Just ask legions of past DOJ “Hallwalkers!”

Garland was sitting around the Ivory Tower while the NDPA was fighting in the trenches for human lives and the survival of Americans democracy. That’s a big reason why Garland, Biden, Harris, and the rest of the Administration have their jobs now! Don’t stand for an immigration bureaucracy and justice system controlled and populated by disciples and plants of “Gauleiter Miller,” “Billy the Bigot,” and “Gonzo Apocalypto.”

5) On the much brighter side, Courtside has confirmed from several sources that the long-extinguished flames of due process, fundamental fairness, best practices, humanity, compassion, and intellectual courage should soon be re-ignited in the opaque darkness and “rabbit warrens” of the 24th Floor of the Tower where the BIA hangs out.

Will the “walls of bias and intentional exclusion of the best and brightest American justice has to offer from outside government” that has plagued the BIA and demeaned American Justice for the past two decades finally be cracked? Will that crack become a breach that eventually becomes a flood of scholarship, fairness, efficiency, respect, and teamwork that will transform a “Tower of Darkness” in to a “Beacon of Justice” that can be seen from coast to coast?

6) Stay tuned! And, keep demanding better, much much better, from Garland, Monaco, Gupta, Clarke, and the rest of the Biden immigration, civil rights, human bureaucracy at DOJ! They seem to think that “elections only have consequences” in immigration and human rights when the GOP wins.

Evidently, they view themselves as above the fray just treating EOIR like another piece of their dysfunctional DOJ bureaucracy. Nothing very proactive or bold! Just let the abuses be unearthed by others and dribble out a bit at a time.Then do a little damage control and “message massaging.”

That’s a prime reason why, despite representing the majority of Americans, and having access to better ideas, the Dems have had trouble governing, retaining power, and turning their agenda into action over the past half-century! It’s also a prime reason why humanity is suffering in our dysfunctional Immigration “Courts,” in a broken DHS that continues to run Gulags and has shamefully retaliated against NDPA members fighting for justice, and in the inexcusable human carnage at our borders fueled by the DOJ’s participation in corruption, intellectual dishonesty, and the illegal suspension of the rule of law! 150 days in and still no functioning asylum system? Come on man!

Five years ago, after retiring, I tried to tell the Clinton folks that not appointing a progressive immigration/human rights expert to be Attorney General would be a huge mistake. Obviously, that became a “moot point” in November 2016.

Ironically, however, the Trump Administration got my message in a negative way. They turned the DOJ over to radical White Nationalist nativists determined to use the negative power of bureaucracy and immigration to batter down the foundations of Americans democracy and spread the gospel of racism, misogyny, and unbridled xenophobia. And, it worked! Big time!

I’m certainly not the only one who vainly tried to tell the Biden Administration NOT to repeat the same mistakes at Justice. Better candidates for AG, folks like the Castro brothers, Chairman Zoe Lofgren, Rep. Jamie Ruskin, and Dean Kevin Johnson were out there. Real, courageous, dedicated progressive leaders and due process mavens! Folks who would have shaken up EOIR, gotten rid of the deadwood and incompetence, cut the unnecessary backlog, instituted best practices, and reestablished a robust, functioning asylum system at the border by now! Folks with the proven backbone to stand up for justice, against all threats, internal and external! Folks who would take seriously their oaths “to protect the Constitution against all enemies, foreign and domestic!”

The slow and ineffectual pace of personnel and other achievable internal reforms at EOIR continues to be an insult to those who are the future of American democracy — if American democracy indeed has a future! That’s still up in the air!

We can see the effect of delay in making the necessary bold progressive immigration and human rights reforms in VP Harris’s foundering performance at the border. No rule of law, no program for fairly and efficiently adjudicating asylum, no open ports of entry, no coherent message on the realities of human migration, no order, kids in bad placements, Border Patrol agents “apprehending” folks who only want their prompt, fair asylum screening from Asylum Officers! What an (avoidable) mess!

The nativist opposition hasn’t folded their tents! Stephen Miller & co. are energized by Garland’s failure to heed the advice of and bring in the expertise of progressives at EOIR. He’s like “Voldemort” — every day Garland dawdles, Miller gets stronger.

Voldemort — His power grows every day that Garland dawdles and progressives find themselves still playing defense, rather than running the show under tone deaf “management” that owes its very existence to them and their support! After 8 years of “lockout” by Obama — yielding a quite predictable human rights and legal disaster — are the folks who revived democracy and kept the fires burning in Immigraton Court REALLY willing to put up with another four years of THIS? Are Dems REALLY THIS DUMB (not to mention ungrateful)?
By Blanca Toth, OLYMPUS DIGITAL CAMERA
Creative Commons

Keep the outrage and opposition to intransigence and failure to bring reform to EOIR coming! NDPRers, my time on the stage is winding down! It’s YOUR future and YOUR CHILDREN’S future on the line today!

Opaque procedures, regressive leadership, secret hearings, Miller cronies, bad precedents, lack of progressive jurisprudence, Article III embarrassments and travesties, mindlessly “expedited” dockets, Aimless Docket Reshuffling, idiotic due-process denying production quotas and “performance work plans,” contempt for advocates and experts, defense of the indefensible, and treating human lives and advocates as “fungible” at EOIR are NOT OK!

Keep the resistance building! Be outraged! Turn up the decibels until even Garland and the West Wing can’t ignore the uproar!

🇺🇸Due Process Forever!

PWS

06-25-21

Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸Due Process Forever!

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Here’s a link to the “video short:”

Here’ the “complete issue” which contains a reprint of an article from Sarah Pierce“Obscure but Powerful: Shaping U.S. Immigration Policy through Attorney General Referral and Review.”

And here’s the terrifically talented Tea:

🇺🇸Due Process Forever!

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Here’s the full decision in Brathwaite v. Garland:

🇺🇸Due Process Forever!

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Nicole writes @ Vox News:

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🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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This WashPost headline and Post Supreme Court reporter Robert Barnes’s summary say it all!

Supreme Court rules against immigrants claiming safety fears after deportation and for pipeline builders

Here’s the “full text” of the decision:

🇺🇸Due Process Forever!

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Here it is, opinion by Judge Stephanie Thacker:

The ongoing travesty of justice @ EOIR and the lives threatened thereby continue to be a national disgrace on Garland’s watch!

🇺🇸Due Process Forever!

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9th Circuit on VD: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/25/19-72893.pdf

1st Circuit on adjustment of status: https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-el-salvador-gang-membership-jurisdiction-hardship-evidence-perez-trujillo-v-garland

🇺🇸Due Process Forever!

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Thanks, Chuck. And, congrats to Hena Mansori, Diana Rashid, and you on another great victory!

🇺🇸Due Process Forever!

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From The Daily Kos:

Due Process Forever!

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🇺🇸Due Process Forever!

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Maria Ramos Pacheco reports for the Dallas Morning News:

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FULL DISCLOSURE: I am a retired member of the NAIJ!

🇺🇸Due Process Forever!

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1) The Richmond video “court” is opening soon to hear more cases in secret without public access.

2) Several IJs working from home are now hearing cases by VTC from their residences. But, there’s no provision for those hearings to be open to the public contrary to the regulations. More VTC just means more problems.

3) EOIR has hired 10 or 11 new IJs but hasn’t disclosed the names publicly. Can “Dandy Dan” Kowalski & other news-hounds smoke out the names again?

4) At least one inexcusable, major setback on long overdue progressive judicial leadership @ EOIR! Unfortunately, the AG decided not to remove Wetmore as Chairman and his probation period has passed.

Progressives, the NDPA, and anybody who cares about due process and equal justice in America should be raising hell with the Administration until we get the change we voted for!

“Passing probation” doesn’t guarantee anyone a particular SES position or a quasi-judicial position at EOIR. Just ask legions of past DOJ “Hallwalkers!”

6) Stay tuned! And, keep demanding better, much much better, from Garland, Monaco, Gupta, Clarke, and the rest of the Biden immigration, civil rights, human bureaucracy at DOJ! They seem to think that “elections only have consequences” in immigration and human rights when the GOP wins.

Evidently, they view themselves as above the fray just treating EOIR like another piece of their dysfunctional DOJ bureaucracy. Nothing very proactive or bold! Just let the abuses be unearthed by others and dribble out a bit at a time.Then do a little damage control and “message massaging.”

Five years ago, after retiring, I tried to tell the Clinton folks that not appointing a progressive immigration/human rights expert to be Attorney General would be a huge mistake. Obviously, that became a “moot point” in November 2016.

The slow and ineffectual pace of personnel and other achievable internal reforms at EOIR continues to be an insult to those who are the future of American democracy — if American democracy indeed has a future! That’s still up in the air!

The nativist opposition hasn’t folded their tents! Stephen Miller & co. are energized by Garland’s failure to heed the advice of and bring in the expertise of progressives at EOIR. He’s like “Voldemort” — every day Garland dawdles, Miller gets stronger.

Keep the outrage and opposition to intransigence and failure to bring reform to EOIR coming! NDPRers, my time on the stage is winding down! It’s YOUR future and YOUR CHILDREN’S future on the line today!

Keep the resistance building! Be outraged! Turn up the decibels until even Garland and the West Wing can’t ignore the uproar!

🇺🇸Due Process Forever!

Related posts: