Immigration Court – Page 93 – immigrationcourtside.com

INSPIRING NEWS FROM THE NDPA: LATEST FIFTH CIRCUIT DECISION SHOWS WHY TODAY’S BIA NOT ENTITLED TO “DEFERENCE” AS AN “EXPERT TRIBUNAL” — Read Professor Geoffrey Hoffman’s Outstanding Analysis of Latest Rap on BIA’s Skewed Jurisprudence — Inestroza-Antonelli v. Barr — @ ImmigrationProf Blog

nhttps://lawprofessors.typepad.com/immigration/2020/04/geoffrey-hoffman-a-stunning-fifth-circuit-asylum-decision-an-analysis-of-inestroza-antonelli-v-barr.html

Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

Geoffrey writeS in ImmigrationProf Blog.

A Stunning Fifth Circuit Asylum Decision: An Analysis of Inestroza-Antonelli v. Barr by Geoffrey Hoffman, Clinical Professor, University of Houston Law Center

I was moved this morning to write about a recent decision from the Fifth Circuit. This is an insightful and sensitive decision from the 2-person panel’s majority, Judges Dennis and King, with Judge Jones dissenting. The April 9th decision is Inestroza-Antonelli v. Barr.

In the very first paragraph, the essence of the decision is announced: “Without addressing the coup, the BIA found that any change in gender based violence was incremental or incidental and not material. Because this conclusion is not supported by the record, we grant the petition and remand.” Id. at 1.

Procedurally, the case involved an in absentia order of removal from 2005. In 2017, the petitioner moved to reopen proceedings outside the 90-day deadline for such motions based on a change in country conditions in Honduras. The petitioner argued that in Honduras since the time of her original removal order there had been “a 263.4 percent increase in violence against women since 2005.” She submitted a trove of documents to support her motion. The Immigration Judge, and Board on appeal denied her motion to reopen.

As recounted in the panel’s decision, there had been a military coup in Honduras in 2009. Specifically, there were several principal changes in the country as a result: “(1) the Gender Unit of the Honduran National Police, established between 2004 and 2005, has been restricted in its operations, and access to the Unit is now limited or nonexistent; (2) the power of the Municipal Offices for Women to address domestic violence has been severely diluted, and officials have been removed from their positions for responding to women’s needs, especially those related to domestic violence; (3) institutional actors have targeted women for violence, including sexual violence, and threatened the legal status of over 5,000 nongovernmental women’s, feminist, and human rights organizations that have opposed the post-coup government’s policies; (4) the rate of homicides of women more than doubled in the year after the coup and has continued to steadily increase, ultimately becoming the second highest cause of death for women of reproductive age; and (5) in 2014, the status of the National Institute for Women was downgraded and other resources for female victims of violence were eliminated….”

The crux of the Immigration Judge’s decision in denying her motion to reopen was that the violence suffered by women in Honduras is an “ongoing problem” and the increase allegedly did not represent a “change in country conditions.” The Board, in its decision, did not even mention the coup, finding instead that the IJ had not clearly erred” because the evidence reflected only an “incremental or incidental,” rather than a “material” change in country conditions.

I would like to point out several noteworthy and instructive aspects of this excellent decision.

First, in analyzing her claim, the Fifth Circuit’s majority noted, as is usual, that the government had introduced “no conflicting evidence.” Indeed, they did not introduce any evidence of country conditions in Honduras at all. Instead, on appeal they “cherry-pick[ed]” excerpts from the evidence introduced by the petitioner. Most typically, the relied on a 2014 Department of State report describing the availability of “domestic violence shelters and municipal women’s offices.”

This first point is important because it accurately describes what is typical of these asylum proceedings. The government often relies on little beyond the State report, and introduces no other evidence of its own. The result sometimes leads to tortured arguments on appeal, nitpicking before the Board, or unfair conclusions before the immigration judge.

It is frustrating sometimes when we litigate these cases and we see parties attempt to shoehorn their conclusions into preconceived molds. This selective reasoning should be called out more often. Many times when confronted with a record that contains a treasure trove of material that is largely favorable to the immigrant, the government is at a loss about how to respond on appeal. Instead of agreeing to a remand, they are faced with defending a sparse record with support for their position. As such, they have to (assuming they do not agree to a remand) cull through the record to find anything to shore up the precarious reasoning in the administrative decisions below.

Second, the majority rejects reliance on a prior case where a petitioner had not presented sufficient evidence of changed country conditions. As astutely pointed out by the majority, it makes no sense to hold that the current petitioner is unable to meet her evidentiary burden merely because a prior petitioner had failed to do so. In the words of the majority, “to hold that Inestroza-Antonelli is precluded from proving that conditions changed as a factual matter during this period simply because a previous petitioner failed to do so would violate the ‘basic premise of preclusion’—i.e., ‘that parties to a prior action are bound and nonparties are not bound.’ Id. at 7 (citing 18A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 4449 (3d ed. 2019)). It is refreshing to see a panel rely on the famous federal practice and procedure treatise.

Third, the decision does a wonderful job of elucidating the “substantial evidence” standard, which is used so often against the immigrant-petitioner. Here, the majority explains that this standard does not mean that the Court of Appeals reviews the BIA decision to determine whether “there theoretically could have been some unevidenced occurrence that would make its findings correct.” Id. at 5 (emphasis added). Instead, the “substantial evidence” standard just means what it says: whether a party has produced substantial evidence in support of their position. Here, the government – as noted – provided no evidence against the petitioner’s position. In fact, the record “compels” the conclusion that conditions have “significantly changed,” according to the majority.

Fourth, the decision takes to task the BIA’s lack of analysis in its decision, specifically the failure on the part of the agency even to mention the “coup” in Honduras. Instead, there was nothing but a conclusory statement that the Board had “considered [the petitioner’s] arguments.” We have seen, for example, other courts of appeals such as the Seventh Circuit, take to task the BIA in recent months. See Baez-Sanchez v. Barr (7th Cir. 2020) (Easterbrook, J.) . It is a very good sign that circuit courts are making searching inquiries, demanding compliance from the Board and EOIR, and not engaging in mere cursory review.

There was a frustration shown in that, as they noted, the Board evidenced a “complete failure” to address the “uncontroverted evidence” of a clear significant “turning point” in Honduras’ history. The majority characterized this failure as an abuse of discretion by the BIA. On a separate point concerning the Board’s rejection of an argument about her abusive husband’s return to Honduras in 2009, as a changed in country conditions, the majority stopped short of calling that argument’s rejection an “abuse of discretion.” In a footnote, the majority noted several sister circuits that agreed that such a change should be characterized as a change in “personal circumstances.”

The most notable thing about the panel’s 2-1 decision besides its well thought-out reasoning is the lack of any discussion involving Matter of A-B-, 27 I & N Dec. 316 (A.G. 2018), anywhere in either the majority’s or dissent’s decisions. Arguably, A-B- is related and has been used (routinely) by the government to argue against relief for women who are similarly situated. Because this case turned on a denial of a motion to reopen in 2017, and there was no Attorney General’s decision until 2018, there was no occasion for the IJ and, later, the BIA rely on the AG’s A-B- decision. To the extent that AG Sessions in A-B- did not rule out all gender-based violence claims, the more important take away here is this: Matter of A-B- can be overcome and is no prohibition on relief, despite what a number of judges and BIA members may believe, so long as the petitioner can produce substantial evidence in support of his or her claims, as the petitioner did so well here. (Note, since this decision relates to a motion to reopen, the case will now be remanded to the BIA and IJ and the petitioner’s fight will continue on remand.)

Judge Edith Jones in her dissent, while never relying outright on A-B-, still takes affront at the perceived failure to “defer” to the BIA. In a telling passage, she states: “The majority has failed to defer to the BIA, which, hearing no doubt hundreds (or thousands) of cases from Honduras, must be far more familiar with country conditions than judges working from our isolated perch . . . . .” This is a scary position. While it is true the BIA has heard thousands of cases from Honduras, this cannot and should not form the basis for any rationale to blindly “defer” to the Board.

This type of deference and the attempted “rubber-stamping” that it engenders was exactly what Justice Kennedy warned about in his short but biting concurrence in Pereira v. Sessions. To quote Justice Kennedy, the “type of reflexive deference exhibited in some of these cases is troubling…it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.” Pereira v. Sessions, 138 S. Ct. 2105, 2121 (2018), Kennedy, J., concurring (emphasis added). Justice Kennedy was right. The dissent’s transparent and clearly forthright encapsulation of the arguments in favor of “deference” highlights the dangers inherent in such a position and shows just why Chevron must (and will) be reconsidered.

Geoffrey Hoffman, Clinical Professor, University of Houston Law Center, Immigration Clinic Director

(Individual capacity; Institution for identification only)

KJ

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Judge Jones’s dissent ignores the clear evidence that the BIA is no longer anything approaching an “expert tribunal,” and that it’s jurisprudence has swung sharply in an anti-immigrant, and specifically anti-asylum, direction under Sessions, Whitaker, and Barr.

How long can the Article IIIs keep “papering over” not only the all too often deficient work-product produced by today’s BIA, but, more significantly, the glaring unconstitutionality of a system constructed and run by prosecutors and politicos that purports to function like a “court.” I doubt that Judge Jones would be willing to trust her life to a “court” that was composed and run like EOIR. So, why aren’t other “persons” entitled to the same Constitutional treatment and human dignity that she would expect if their positions were reversed?

In the meantime, I wholeheartedly endorse Geoffrey’s observation that even in the “Age of A-B-,” and in the normally “asylum-unfriendly” Fifth Circuit, great scholarship, persistence, and good lawyering can save lives! We just need more “good lawyers” out there in th NDPA to keep pressing the fight until all of the Article III’s stop “going along to get along” with the charade currently unfolding at EOIR and we also get the “regime change” necessary to establish an Article I Immigration Court that functions like a “real court” rather than a surreal vision of a court.

Due Process Forever!

PWS

04-13-20

HEAR IT FROM AN EXPERT: Trump’s Illegal Obliteration of Asylum Law Part of The Demise of The Rule of Law In America! — Professor Lucas Guttentag Eviscerates Trump’s Scofflaw Action!

https://www.justsecurity.org/69640/coronavirus-border-expulsions-cdcs-assault-on-asylum-seekers-and-unaccompanied-minors/

Lucas writes in Just Security:

The Trump administration’s novel COVID-19 border ban invokes public health authority to erect a shadow immigration enforcement power in violation of the Refugee Act, legal safeguards for unaccompanied minors, and fundamental procedural rights. Relying on an obscure 1944 provision that provides no authority for immigration removals, the Centers for Disease Control purports to authorize summary Border Patrol expulsions of asylum seekers.

On March 20, the Centers for Disease Control (“CDC”) issued a largely unnoticed but sweeping order authorizing the summary expulsion of noncitizens arriving at the border without valid documents. The Order operates wholly outside the normal immigration removal process and provides no opportunity for hearings or assertion of asylum claims. It deploys a medical quarantine authorization to override the protections of the immigration and refugee laws through the use of an unreviewable Border Patrol health “expulsion” mechanism unrelated to any finding of disease or contagion.

How the COVID-19 Expulsion Policy Works

The CDC Order is based on an emergency Department of Health and Human Services (HHS) Interim Final Rule issued simultaneously with the Order under the authority of an obscure provision of the 1944 Public Health Service Act. Section 362 of that Act authorizes the Surgeon General to suspend “introduction of persons or goods” into the United States on public health grounds. Based on an unprecedented interpretation of the 1944 Act, the CDC regulation invokes the COVID-19 pandemic to redefine what constitutes “introduction of persons” and “introduction of communicable diseases” into the United States. It establishes a summary immigration expulsion process that ignores the statutory regime governing border arrivals and disregards the protections and procedures mandated by the 1980 Refugee Act and Refugee Convention as well as the special safeguards for unaccompanied minors under the Trafficking Victims Protection Reauthorization Act (“TVPRA”).

The CDC Order “suspending introduction of certain persons” applies to land travel from two countries, Mexico and Canada, and only to those noncitizens defined as “covered aliens.” That definition is unrelated to infection or disease. It includes only those who arrive by land without valid travel documents and immediately “suspends” their “introduction” for a renewable period of 30 days. In actuality the Order singles out those who seek asylum – and children – to order them removed to the country from which they entered or their home country “as rapidly as possible.” A recently leaked Customs and Border Protection directive makes clear that expulsion is the goal and that no process is provided.

The Order’s stated rationale is the risk alleged from “covered aliens” being crowded in “congregate settings.” The apparent justification for bypassing all legal protections and procedures is the CBP’s assertion that Border Patrol officers are “not operating pursuant to” their authority under the immigration laws.

This shadow immigration expulsion regime is not part of some coherent public health or safety plan to seal our borders or to diminish the risk of COVID-19’s introduction into the U.S. A web of other proclamations and restrictions leave open many avenues for other travelers to enter the United States. The risk of processing in congregate settings is a function of DHS’s own practices and policies; it is also not unique to land borders.

The CDC order is designed to accomplish under the guise of public health a dismantling of legal protections governing border arrivals that the Trump administration has been unable to achieve under the immigration laws. For more than a year, the administration has sought unsuccessfully to undo the asylum system at the southern border claiming that exigencies and limited government resources compel abrogating rights and protections for refugees and other noncitizens. The courts have rebuffed those attempts in critical respects. Now the administration has seized on a public health crisis to impose all it has been seeking – and more.

Unquestionably, the United States faces a pandemic of unknown scope and duration that has led to the greatest social and economic disruption and restrictions on personal movement in our lifetime. The hospital and healthcare system is under siege and threatened with collapse in some areas. Infected persons can be asymptomatic and may not be detected. The addition of contagious individuals can exacerbate spread of the virus, place additional strains on hospitals, pose dangers to healthcare workers and law enforcement officers, and increase the risk of infection for others.

But the COVID-19 ban is an act of medical gerrymandering. It is crafted to override critical legal rights and safeguards in singling out only those arriving at the border without authorization and deeming that class of people a unique and unmitigable public health threat. It tries to justify an end-run around congressionally mandated procedural rights and protections essential for refugees and unaccompanied minors and it does so to achieve an impermissible goal. What’s additionally shocking here: the statutory provision does not actually give the executive branch expulsion authority.

. . . .

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Read the rest of Lucas’s “mini treatise” at the above link.

The law is clearly against Trump here, as Lucas so eloquently and cogently sets forth. But, that doesn’t necessarily mean much in an era of a feckless GOP-stymied Congress and an authoritarian-coddling righty Supremes’ majority led by Roberts and his four sidekicks.

The Supremes have delivered a strong message to the lower Federal Courts that Trump can do just about anything he wants to migrants. He just has to invoke some transparently bogus “national security” or “emergency” rationale for ignoring the Constitution and statutes.

It’s “Dred Scottification” in full force. Largely the same way the courts buried the rights and humanity of African Americans to enable a century plus of “Jim Crow” following the end of the Civil War. The “law of the land” just became meaningless for certain people and in certain jurisdictions. “Any ol’ justification” — states’ rights, separate but equal, no jurisdiction, etc. — was more than enough to read Africans-American citizens out of their Constitutional and other legal protections.

Don’t kid yourself. That’s exactly what Trump, the GOP, and the Supremes’ majority are up to here.

And, the amazing thing, here in 21st Century America, they are getting alway with it! In plain sight!

This November, Vote Like Your Life Depends On It! Because It Does!

PWS

04-13-20

“MALICIOUS INCOMPETENCE” IS COSTLY: In a Functioning System, DHS Would Release As Many Detainees As Possible Applying “Best Health Guidance” & EOIR Judges Would Insure Prompt, Uniform Compliance By DHS – Under Today’s Totally Dysfunctional System, It Rests With Private Attorneys & U.S. District Judges Across America To Do The Job That DHS & EOIR Won’t – Not Surprisingly, The Results Are Expensive, Time-Consuming, & Uneven!

Andrea Castillo
Immigration Reporter
LA Times

https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=910bd5e6-d0d0-4291-af81-af2ba51ed37d&v=sdk

Andrea Castillo and Brittny Mejia report for the LA Times:

For weeks, as the coronavirus spread, Jose Hernandez Velasquez worried about the dangers of being detained inside the Adelanto ICE Processing Center 80 miles east of Los Angeles.

The 19-year-old Guatemalan immigrant listened uneasily as other men called their families, begging them to do everything possible to get them released so as to reduce their odds of contracting the deadly illness.

Ultimately, in light of the pandemic, a federal judge ordered immigration authorities to release Hernandez, an asylum seeker with hypertension who had spent nearly 21/2 years at the facility. When a guard came to tell him the news, Hernandez was speechless. Other detainees burst into applause.

“I was really worried,” he said in a phone call after his release. “It was so difficult to be inside.”

As an increasing number of Immigration and Customs Enforcement detainees across the country test positive for COVID-19, California lawyers are working to free as many clients as they can by invoking constitutional rights and arguing on humanitarian grounds. In the last two weeks, U.S. District Judge Terry Hatter Jr. ordered at least 10 people released from Adelanto, one of the country’s largest detention centers, holding nearly 2,000 people.

It’s unclear how many detainees have been released nationwide because of coronavirus concerns. In recent weeks, federal judges across the country have ordered the release of more than 40 detainees.

Like Hernandez, most have been released after lawyers petitioned federal courts on their behalf. Others have been released on bond or through humanitarian parole, which is free to people with a compelling emergency.

In response to the pandemic, ICE has instructed field offices to assess and consider for release those deemed to be at greater risk of exposure, reviewing cases of individuals age 60 and older, as well as those who are pregnant.

In court filings, ICE has argued that concern about detainees contracting COVID-19 is “based on mere speculation” and that releasing large numbers of them would set a precedent that would persist even after the virus subsides.

Until ICE agrees to release more detainees, “you’re going to keep seeing petitions like this,” said Jessica Bansal, senior staff attorney at the American Civil Liberties Union of Southern California, which got Hernandez and others released from Adelanto. “Because people need to get out.”

The ACLU has sued ICE facilities in multiple states over coronavirus concerns.

. . . .

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Read the rest of the article at the above link.

Empowering a regime that functions in such a contemptuous, cruel, and incompetent manner is insane and wasteful to boot. Everyone, including the legitimate needs of DHS enforcement (not much resemblance to the current racially-driven scofflaw mess) would benefit from a professionalized, accountable, and properly focused DHS and an independent, due process with efficiency-oriented U.S. Immigration Court.

Immigration enforcement could focus on priorities that actually relate to the safety and security of our nation, the private and NGO immigration bar could expand individual case representation before the Immigration Courts thus promoting efficiency with due process, and the U.S. District Courts could return to other cases. It would be a win-win-win, notwithstanding the bogus blather of the White Nationalist restrictionists who seek to use the pandemic as a weapon to “zero out” legal immigration and force all migration into the “black market” where it can more easily be exploited and abused by them and their cronies.

Due Process Forever! Malicious Incompetence Never!

PWS

04-13-20

RISKING LIVES TO KEEP THE DEPORTATION RAILWAY RUNNING — FOR UNACCOMPANIED KIDS! — “It is inexplicable and dangerous that the Trump administration has insisted that detained unaccompanied children are still required to go to court,” said Wendy Young, president of Kids in Need of Defense.” — Julia Preston Reports For The Marshall Project

Julia Preston
American Journalist
The Marshall Project

Wendy Young
President, Kids In Need of Defense (“KIND”)

https://www.themarshallproject.org/2020/04/10/migrant-children-still-face-speedy-deportation-hearings-in-covid19-hotspots

Julia writes:

They are children who were caught crossing the southwest border without papers and sent to migrant shelters in New York when the coronavirus was silently spreading. Now the city is a pandemic epicenter in lockdown, but the Trump administration is pressing ahead with their deportation cases, forcing the children to fight in immigration court to stay.

In two courthouses in the center of the besieged city, hearings for unaccompanied children—migrants who were apprehended without a parent—are speeding forward. The U.S. Department of Justice, which controls the immigration courts, has said it has no plan to suspend them.

This week an 8-year-old, a 5-year-old, and a teenage single mother with an infant were preparing for imminent court dates and deadlines in New York, lawyers representing them said. With children trapped indoors in shelters and foster-care homes, many young migrants who don’t have lawyers may not even be aware of ongoing court cases that could quickly end with orders for them to be deported.

Hearings for unaccompanied children are also proceeding in courts in other COVID-19 hotspots, including Los Angeles, San Francisco, Seattle, Chicago and Boston.

The Executive Office for Immigration Review, the Justice Department agency in charge of the immigration courts, has rejected calls from judges, prosecutors and immigration lawyers to shut down courts nationwide. Although hearings for immigrants who are not detained have been suspended through May 1, cases of people in detention are going forward at the same accelerated pace as before the pandemic.

That includes many unaccompanied children. Since last year, Trump administration officials have instructed the courts to treat those children as detained if they are in shelters or foster care under the custody of the Office of Refugee Resettlement, or ORR, a federal agency. Immigration judges are under pressure to complete detained cases within 60 days—warp speed in immigration court—with no exception for children.

Across the country, about 3,100 unaccompanied children are currently in the custody of the refugee agency. Many have run from deadly violence and abuse at home and hope to find safety with family members in the United States. The demands for them to meet fast-moving court requirements are causing alarm among lawyers, caregivers and families.

“It is inexplicable and dangerous that the Trump administration has insisted that detained unaccompanied children are still required to go to court,” said Wendy Young, president of Kids in Need of Defense, or KIND, which helps provide lawyers for unaccompanied children. Unlike in criminal courts, in immigration court children have no right to a lawyer paid by the government if they cannot afford one.

On April 8, the American Immigration Lawyers Association, the immigration bar, and other legal groups asked a federal court for a temporary restraining order to force the Justice Department to suspend in-person hearings of detained immigrants during the pandemic.

Justice Department officials say they are holding hearings for immigrants in detention, including for children, so they can get their cases decided and perhaps be freed quickly.

. . . .

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Read the rest of Julia’s report at the link.

The idea, as DOJ claims, that this is being done to facilitate the “freeing” of kids is preposterous on its face.

First, there is nothing stopping them from arranging placements for children without the Immigration Court hearings being completed. It used to be done all the time.

Second, the DOJ has intentionally and unethically rewritten asylum laws through “precedents” aimed primarily at making it harder to qualify for asylum. This abuse of process particularly targets those fleeing persecution resulting from various types of systematic government and societal violence in Central America. The approval rates for these types of cases have fallen to minuscule levels under Trump.

Third, no child has any chance of succeeding in Immigration Court without a lawyer. Almost all lawyers who represent children in Immigration Court serve “pro bono” — or work for NGOs who can only provide minimal salaries.

Yet, the Administration is making these lawyers risk their health and safety, while artificially accelerating the process, all of which actively and aggressively discourages representation.

Added to that is the constant “Aimless Docket Reshuffling,” with Immigration Courts closing, reopening, and re-closing on a moment’s notice and dockets constantly being rearranged as judges, court support staff, interpreters, and DHS lawyers fall ill.

The Administration could work with groups like KIND and other NGOs to arrange placements, and schedule hearings in a manner that promotes health and safety for everyone while maximizing due process. But, the Administration refuses to do this.

Instead, those seeking to inject sanity, common sense, best practices, and human decency into the process are forced to sue the Administration in Federal Court. This further dissipates and diverts already scarce legal resources that could have been used to actually represent children in Immigration Court and arrange safe placements for them.

Finally, as I have noted previously, the Administration has simply suspended the operation of the Constitution and the rule of law at the borders. This means that thousands, including unaccompanied children, are “orbited into the void” without any process whatsoever or any effort to ascertain their situations or best interests.

All of this gives lie to the Administration’s bogus claim that this is about looking out for the best interests of these kids. No, it’s about maximizing cruelty, destroying lives (considered an effective and acceptable “deterrent” in nativist circles), and carrying out a noxious racist White Nationalist restrictionist immigration agenda.

And, to date, Congress and the Federal Courts, both of which have the power to put an end to this disgraceful, unlawful, and unconstitutional conduct have been largely “MIA.”

Nevertheless, thanks to courageous and dedicated journalists like Julia and organizations like KIND, a public record is being made. While those responsible for implementing and enabling these abuses directed at the “most vulnerable of the vulnerable” among us are likely to escape legal accountability, they will eventually be tried and found wanting in the “court of history.”

Due Process Forever! Trump’s Child Abuse Never!

PWS

04-10-20

ROUND TABLE FILES AMICUS IN SUPPORT OF STOPPING DANGEROUS IMMIGRATION COURT PRACTICES – With Lots Of Help From Our Friends @ Arnold & Porter! – “We are in the midst of a nationwide pandemic. From the approach of the Executive Office for Immigration Review (EOIR) headquarters, one would never know that.”☠️🆘

John A. Freedman
Senior Counsel
Arnold & Porter

Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.

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

Key Excerpt:

We are in the midst of a nationwide pandemic. From the approach of the Executive Office for Immigration Review (EOIR) headquarters, one would never know that. Through a series of chaotic and inconsistent announcements, EOIR —the office that manages the procedural components of the immigration court system on behalf of the United States Department of Justice2—has continued to schedule non-essential proceedings, requiring judges, court staff and security personnel, litigants and case participants, attorneys, witnesses, interpreters, and interested members of the public to come immigration court, exposing them, their families, and their communities to unnecessary risk of COVID-19.
1 In accordance with Local Rule 7(o), no party’s counsel authored this brief in whole or in part, nor did any party or party’s counsel, or any other person other than amici curiae, contribute money that was intended to fund preparing or submitting this brief.
2 See 8 C.F.R. § 1003.0(b) (setting forth the authority of the Director of EOIR).

1
Case 1:20-cv-00852-CJN Document 11-1 Filed 04/09/20 Page 5 of 22
The madness of EOIR s approach is evident in one example, representative of its
approach. Yesterday – April 8 — the immigration court in Elizabeth, New Jersey was open for business as usual. This court is across the Hudson River from New York City, and is near the epicenter of the largest COVID-19 hotspot on the planet, and is in a jurisdiction that has had a mandatory shelter-in-place” order since March 21. Yet EOIR insisted that proceedings continue
yesterday. Until it was learned that two detainees in the courthouse were positive for COVID- 19. Only then did EOIR accede to the obvious, scrambling to order the court to shut the Elizabeth court down. But immigration courts were open in many other jurisdictions yesterday, and are scheduled to be open today and for the foreseeable future.
EOIR’s intransigence defies the practice of numerous federal and state courts, the
recommendations of public health officials, and the orders of dozens of Governors who have ordered all non-essential business be deferred. As Judge Samuel Cole, a spokesperson for the National Association of Immigration Judges warned, everyone is being put at risk.” Close immigration courts? Lawyers and judges push to stop in-person hearings amid coronavirus spread, Fortune (Mar. 26, 2020) (describing how attorneys are wearing swim googles and masks to comply with EOIR orders).
The current EOIR approach manifests this disarray because there was not, and has never been, any meaningful continuity planning by EOIR. EOIR, and therefore the immigration court system itself, has sacrificed due process in favor of rapid removals, leaving the court without any incentive at all to plan to protect the public health or the individuals and participants in the system.
Amici urge the issuance of a temporary restraining order to allow for development of a more comprehensive, systemic, and scientifically sound policy that respects due process and the
2
Case 1:20-cv-00852-CJN Document 11-1 Filed 04/09/20 Page 6 of 22
public health. We offer a framework for what a legally and scientifically sound policy could look like and why a court-ordered pause on all non-essential activities for a short 28-day period could allow for such a policy to emerge in deliberations with stakeholder communities.

Read the entire brief, which contains our proposed solution for how the Immigration Courts could conduct essential operations consistent with health, safety, and due process during this pandemic: Amicus brief_NIPNLG

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Again, many, many thanks to John Freedman and his group at Arnold & Porter as well as Ilyce & Jeffrey for their leadership.

Due Process Forever! EOIR’s Insanity, Never!

PWS
04-1–20

IMMIGRATIONPROF BLOG: “Trump is dissolving Congress in plain sight, and immigration’s a top example”

https://lawprofessors.typepad.com/immigration/2020/04/trump-is-dissolving-congress-in-plain-sight-and-immigrations-a-top-example.html

Friday, April 10, 2020

Trump is dissolving Congress in plain sight, and immigration’s a top example

By Immigration Prof

Share

David Hernandez
Associate Professor for Latino Studies
Mount Holyoke College

David Hernandez for The Fulcrum analyzes how President Trump is circumventing Congress on immigration law and policy:

“The Trump administration’s power grab during the new coronavirus pandemic is well underway.

But even before the Covid-19 outbreak, President Trump was out-maneuvering the principal obligations of Congress — funding and providing oversight of the executive branch, and setting policy through legislation — by deploying executive orders, rule changes, fee schedules and international agreements to minimize the power of the legislative branch during his presidency.”

Click the link above for a detailed analysis.

KJ

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Yup. But, readers of “Courtside” already know this.

The LA Times Editorial Board expounded on the same theme today:

The pandemic as pretext

The Trump administration is using COVID-19 as an excuse to advance several controversial initiatives.

https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=c41bb7af-9913-442e-a123-aadefb454e3e&v=sdk

PWS

04-10-20

TRAC IMMIGRATION: Crisis In Immigration Court Representation? — 60% In Immigration Court Live In Rural Counties Where Immigration Lawyers Are Scarce!

Read the complete report here:

https://trac.syr.edu/immigration/reports/602/

Here’s an excerpt:

The Hidden Impact of Removal Proceedings on Rural Communities

Although the Immigration Courts with the largest backlogs of cases are located in large cities, the latest Immigration Court records show that when adjusted for population, many rural counties have higher rates of residents in removal proceedings than urban counties. In fact, of the top 100 US counties with the highest rates of residents in removal proceedings, nearly six in ten (59%) are rural. In these communities, residents facing deportation may find themselves in rural “legal deserts[1]” where there are few qualified immigration attorneys, longer travel times to court, and high rates of poverty.

The Immigration Court data used in this report was obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University in response to its Freedom of Information Act (FOIA) requests to the Executive Office for Immigration Review (EOIR).

Mapping Pending Immigration Court Cases

TRAC recently mapped the Immigration Court’s current active backlog—over 1.1 million cases—to show the number of residents in each county who are awaiting their day in court. In this follow-on report, TRAC used the same data set to map the proportion of residents (“rate”) with pending immigration cases as a fraction of total residents[2].

When the total number of backlog cases is mapped, urban areas such as Los Angeles, New York City, and Chicago emerge as areas with large numbers of pending cases. This makes sense, because the total number of immigration cases is driven by the geographic concentration of large numbers of people in urban areas. However, when the number of pending immigration cases is mapped relative to county population, a different picture emerges. Many large urban counties are revealed to be more average, while many rural counties are shown to have much higher concentrations of removal cases.

In these rural counties, residents may have a heightened sense that immigration enforcement is impacting their community. This, in fact, would be an entirely rational perception since the odds are indeed greater.

Figure 1 below includes a map of the proportion of residents in each county currently in the backlog (top) and the total number of cases in each county in the backlog (bottom, reprinted from our previous report). The county-level rate is represented as the number per 100,000 residents who are currently in removal proceedings.

Particularly striking is how many counties in Southern California and the New York City-Boston corridor, which are prominent in the map of the number of cases, look more typical once population is taken into account. Also striking is how counties in the Great Plains regions from Southwest Minnesota to western Oklahoma pop off the map as places where higher percentages of the community are facing deportation proceedings today.

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

There is little doubt that DHS Enforcement and their “partners at EOIR” have made an effort to hinder individuals’ Constitutional and statutory right to representation by counsel of their choice. From “Aimless Docket Reshuffling,” to locating so-called “detained courts” in obscure places, to arbitrary denial of continuances, to restricting bonds, to failures to provide notices and giving intentionally “bogus” notices, to rude and unprofessional treatment of attorneys, to trying to get rid of “know your rights” presentations, to skewing the law to change results to favor DHS.

All this leads to a largely “due process free” Deportation Railroad.

Due Process Forever!

PWS

04-10-20

PROFESSOR BILL ONG HING @ IMMIGRATIONPROF BLOG: Intentional Mistreatment of Central American Refugees: A Grim American Tradition Now Unrestrained Under Trump Regime’s White Nationalist, Racist Policies & Supreme’s Complicity!

https://lawprofessors.typepad.com/immigration/2020/04/mistreating-central-american-refugees-repeating-history-in-response-to-humanitarian-challenges.html

Here’s an abstract:

Friends,

Happy to share my new article Mistreating Central American Refugees: Repeating History in Response to Humanitarian Challenge (forthcoming Hastings Race and Poverty Law Journal). The full article can be downloaded here.

Abstract:

In the 1980s, tens of thousands of Central Americans fled to the United States seeking refuge from civil unrest that ravaged their countries. In a largely geopolitical response, the Reagan administration labeled those fleeing Guatemala and El Salvador as “economic migrants,” detained them, and largely denied their asylum claims. The illegal discrimination against these refugees was exposed in a series of lawsuits and through congressional investigations. This led to the reconsideration of thousands of cases, the enlistment of a corps of asylum officers, and an agreement on the conditions under which migrant children could be detained.

Unfortunately, the lessons of the 1980s have been forgotten, or intentionally neglected. Beginning in 2014, once again large numbers of Central American asylum seekers—including women and children—are being detained. Asylum denial rates for migrants fleeing extreme violence are high. The mixed refugee flow continues to be mischaracterized as an illegal immigration problem. Many of the tactics used in the 1980s are the same today, including hampering the ability to obtain counsel. President Trump has taken the cruelty to the next level, by invoking claims of national security in attempting to shut down asylum by forcing applicants to remain in Mexico or apply for asylum in a third country. We should remember the lessons of the past. Spending billions on harsh border enforcement that preys on human beings seeking refuge is wrongheaded. We should be implementing policies and procedures that are cognizant of the reasons migrants are fleeing today, while working on sensible, regional solutions.

Full article here.

Everyone stay safe and sane.

bh

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

Get the full article at the link.

Professor Hing’s article echoes one of the themes of some of my speeches and comments, although, of course, he approaches it in a much more scholarly and systematic manner.

Check out my speech here:

“JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”

https://immigrationcourtside.com/2020/03/24/our-implementation-of-asylum-law-has-always-been-flawed-now-trump-has-simply-abrogated-the-refugee-act-of-1980-without-legislation-but-led-by-the-complicit-supremes-federal-app/

Due Process Forever!

PWS

04-08-20

NICOLE NAREA @ VOX: Fearing COVID-19, MASS. Immigrants Seek Freedom From DHS Gulag Before It’s Too Late! — “Everyone deserves the opportunity to survive this!”

https://apple.news/APNjMBtPWQimrrwcm_jfXUQ

Nicole Narea reports for Vox News:

As most of the country remains in lockdown to curb the spread of coronavirus, nearly 150 immigrants are fearing for their safety as they fight for their release from a North Dartmouth, Massachusetts, detention facility.

From the few hours of television news they can watch each day, the detainees have learned that social distancing, along with proper sanitation, is the only way that they can protect themselves from infection. But that’s all but impossible at the Bristol County Correctional Center, where the detainees are held together in tight quarters without the protective equipment or sanitation resources necessary to protect themselves, they argue in a class action lawsuit.

They are among the 38,000 immigrants in detention across more than 130 private and state-run detention facilities nationwide. As of April 7, 19 detainees across 11 different facilities had tested positive for the virus — none of them in Bristol, though advocates say it’s only a matter of time before it hits or testing rates improve.

Only after outcry from immigrant advocates did US Immigration and Customs Enforcement recently institute national policies encouraging social distancing in its facilities and provide soap, hand sanitizer, cleaning supplies, and personal protective equipment. The agency also announced Tuesday that it would start releasing detainees who are medically vulnerable to Covid-19, the disease caused by the coronavirus; it has released 60 so far and has identified another 600 who would qualify.

But that’s only a fraction of the detainees nationwide. Unless the agency starts releasing detainees by the thousands, that means most will remain in confinement, despite the fact that they largely have no criminal history. There is, therefore, a national advocacy push for the administration to alter its enforcement priorities to release all detainees, or at least those who haven’t committed serious crimes; while immigrant advocates campaign for their release even in the best of times, their message has become even more urgent amid the outbreak.

In the meantime, those at Bristol remain in conditions that they fear could facilitate the spread of the virus, which can be carried by those who don’t exhibit symptoms.

For the more than 30 detainees with underlying medical conditions that make them vulnerable to complications from Covid-19, it’s an especially scary situation. So far, only 18 detainees have been ordered released as part of the lawsuit, and not all of them qualify as high-risk.

“We suffer from being separated from our families and loved ones,” 47 detainees wrote in a March 20 declaration. “To add on top of this, we are now living in fear.”

. . . .

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

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

Sheriff Thomas Hodgson claims that there isn’t an adequate “social safety net” for these detainees in the community. But, have he and DHS worked with the advocates seeking release and the community to see what testing and safe placements might actually be available? He has responsibility for the well-being of those in his custody. But, it doesn’t sound like he has anything approaching a rational plan to carry out his legal obligations.

PWS

04-09-20

ROUND TABLE MEMBER TAKES US INSIDE THE EOIR DISASTER IN NEW JERSEY!

Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges

Former Judge Sue Roy reports:

The [Elizabeth] court was open today (and has been for days) and they had already started hearings this morning, with detainees and others in the courtrooms and the holding areas, when 2 detainees tested positive for COVID-19. They frantically shut down the court.

The Court is inside the detention center, uses the same antiquated ventilation system, same entrance, same guards and facility employees, etc.

And last week EOIR was trying to force Newark Immigration Judges to cover in Elizabeth IN PERSON.

The callousness and disregard for their own staff, much less everyone else, is staggering.

Sue

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

Thanks for speaking out, my friend!

The mindless cruelty and bad judgment just “keeps on keeping on!”

PWS

04-08-20

BREAKING: AILA FILES FOR TRO AGAINST DANGEROUS PRACTICES BY DHS & EOIR — Says U.S. Government Needlessly & Recklessly Putting Lives At Risk During Pandemic! ☠️☠️⚰️⚰️🆘🆘

For Immediate Release

Wednesday, April 8, 2020

Contact:

Maria Frausto, mfrausto@immcouncil.org, 202-507-7526

George Tzamaras, GTzamaras@aila.org, 202-507-7649

Sirine Shebaya, sshebaya@nipnlg.org, 202-656-4788

Temporary Restraining Order Requested to Stop Dangerous EOIR and ICE Policies During the COVID-19 Pandemic

WASHINGTON, DC–Immigration groups today moved for an emergency temporary restraining order (TRO) against the Executive Office for Immigration Review (EOIR) and U.S. Immigration and Customs Enforcement (ICE) in order to protect the health of immigration attorneys, immigrants, and the public from the impact of dangerous and unconstitutional policies during the COVID-19 pandemic.

Represented by the National Immigration Project of the National Lawyers Guild (NIPNLG) and the law firm of Cleary Gottlieb Steen & Hamilton LLP, NIPNLG, the American Immigration Lawyers Association (AILA), and the Immigration Justice Campaign–a joint initiative of the American Immigration Council and AILA–filed the TRO, in NIPNLG, et al., v. EOIR, et al., to seek a brief pause of in-person hearings for detained individuals and facilitate remote confidential communication between attorneys and their clients. The pause would enable EOIR and ICE to adopt policies, practices, and procedures to enable the consistent and safe conduct of remote hearings (for example by video teleconference) that are protective of attorney-client privilege.

EOIR and ICE have repeatedly ignored recommendations regarding how to maintain health and safety in the courts and in detention, including the use of remote access. Detainees, court staff, and attorneys are subject to inconsistent practices and procedures for in-person hearings in 58 of the nation’s 69 immigration courts.

A copy of the motion for the emergency temporary restraining order is available at the link here.

###

The National Immigration Project of the National Lawyers Guild (NIPNLG) is a national non-profit organization that provides technical assistance and support to community-based immigrant organizations, legal practitioners, and all advocates seeking and working to advance the rights of noncitizens. NIPNLG utilizes impact litigation, advocacy, and public education to pursue its mission. Follow NIPNLG on social media: National Immigration Project of the National Lawyers Guild on Facebook, @NIPNLG on Twitter.

The American Immigration Council works to strengthen America by shaping how America thinks about and acts towards immigrants and immigration and by working toward a more fair and just immigration system that opens its doors to those in need of protection and unleashes the energy and skills that immigrants bring. The Council brings together problem solvers and employs four coordinated approaches to advance change–litigation, research, legislative and administrative advocacy, and communications. Follow the latest Council news and information on ImmigrationImpact.com and Twitter @immcouncil.

The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members. Follow AILA on Twitter @AILANational.

Laura A. Lynch, Esq.

Senior Policy Counsel

American Immigration Lawyers Association

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

Thanks, Laura, for sending this around and for everything you and AILA are doing to save some lives from the “malicious incompetence” of the Trump regime.

Will the Article III Courts finally do the right thing? Or will they continue their “head in the sand” approach to the ever-worsening disaster in our Immigration Courts and the New American Gulag? I’d have to say that at this point, while some U.S. District Judges notably have “stepped up to the plate” in a number of cases involving a limited number of releases or threatened releases, I have seen little to indicate an inclination toward taking the necessary bold, decisive nationwide action to save lives in the face of this crisis.

Let’s hope for the best!

Due Process Forever!

PWS

034-08-20

ACLU DESPERATELY TRIES TO GET ATTENTION OF FEDERAL JUDICIARY AS COVID-19 HITS SAN DIEGO DETENTION CENTER! ☠️☠︎😰⚰️🧫

https://www.sandiegouniontribune.com/news/immigration/story/2020-04-06/aclu-sues-for-release-of-ice-detainees-at-otay-mesa-detention-center-as-covid-19-cases-at-facility-increase

Kate Morrissey reports for the San Diego Union Tribune:

On the same day the first person in immigration custody in San Diego was confirmed to have the new coronavirus, the American Civil Liberties Union sued for the release of certain high-risk detainees at the region’s two detention centers.

In the lawsuit, ACLU attorneys argue that specific detainees at Otay Mesa Detention Center and Imperial Regional Detention Facility who have pre-existing conditions that would make severe symptoms of COVID-19 more likely should be released in order to protect them from likely exposure to the virus. Some similar cases, filed by other groups around the country, have been successful in getting immigrant detainees released.

This coverage of the coronavirus pandemic is part of your subscription to The San Diego Union-Tribune. We also provide free coverage as a service to our community.

“During this pandemic, we’ve seen institutions at all levels take these really drastic, life-altering measures to preserve public safety and community well being,” said Monika Langarica, an attorney with the ACLU of San Diego & Imperial Counties. “(U.S. Immigration and Customs Enforcement), which oversees massive detention operations across the country, rather than follow the course of these other institutions, has done almost the opposite.”

. . . .

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

Read the rest of Kate’s article at the above link.

Similar suits have produced mixed results throughout the country. While some U.S. District Judges have ordered or threatened to order the release of certain detainees, others have “blown off” legitimate health concerns and the failure of DHS and DOJ authorities to follow health guidelines during the pandemic.

Of course, the idea that social distancing, universal testing, basic hygiene, or individual protective equipment is being employed in any part of the “DHS Gulag” and the Immigration “Courts” is preposterous on its face. Yet, remarkably, some U.S. District Judges prefer the “show me the dead bodies approach” as an alternative to the sensible preventive measures recommended by health professionals. After all, “they are only aliens” in the eyes of the regime and some Federal Judges.

Others, more astutely, have recognized that those stuck in the Gulag and the never-ending dysfunction of the Immigration “Courts” are actually their fellow human beings, most without serious criminal convictions. They are also “persons” under the Fifth Amendment to the U.S. Constitution, entitled to have their health, safety, and lives protected from dangerous and unreasonable actions by the Federal Government.

Due Process Forever!

PWS

04-07-20

“DEVOURING ITS OWN” — U.S. IMMIGRATION JUDGES FIND TRUMP REGIME’S DEHUMANIZATION PROGRAM APPLIES TO THEM TOO — DOJ Overlords Treat Captive Judges’ Lives With Contempt Usually Reserved For Asylum Seekers, Detainees, & Their Attorneys! ☠️⚰️🆘🧫👎🏻😰

https://apple.news/AHVHlXYP_N1SlC2OPsFNIJQ

Kelly Donohue reports for Cronkite News/NPR:

PHOENIX – Nearly a month into a seemingly worldwide shutdown, it may be hard to find an everyday business or public area that has not been closed because of COVID-19. Many companies have allowed their employees to work from home, but businesses deemed essential are still in operation.

This includes grocery stores, fuel stations, banks, transportation systems, pharmacies – and most U.S. immigration courts.

The coronavirus pandemic has upended the daily routines of hundreds of millions of Americans.

Yet for migrants in federal custody waiting for their cases to be heard, their reality has not changed much.

As of March 28, Immigration and Customs Enforcement’s average daily population – the total number of individuals in ICE detention across the current fiscal year (Oct. 1 through Sept. 30), divided by the number of days into the fiscal year – was 43,026.

Three out of four Arizona immigration courts – in Phoenix, Eloy and Florence – remain open. A fourth, in Tucson, was closed due to a water main break. All hearings scheduled through May 1 for immigrants who are not in federal detention, as well as cases under the Migrant Protection Protocols docket scheduled through May 1, have been postponed by the Department of Justice.

Yet all detained migrants still remain in federal custody.

All non detained hearings scheduled through April 10 have been postponed in all 63 immigration courts. But immigration judges and court staff from various professional associations say that’s not nearly enough. They have filed a lawsuit against ICE and the Department of Justice’s Executive Office for Immigration Review (EOIR), which oversees all U.S. immigration court cases.

The American Immigration Lawyers Association, the Immigration Justice Campaign, the National Immigration Project of the National Lawyers Guild and several detained immigrants filed the complaint on March 30, calling on ICE and the EOIR to indefinitely suspend all in-person immigration court hearings, as well as provide remote communication opportunities and personal protective equipment for legal representatives to wear.

Immigration attorney Pamela Florian, chairwoman of the American Immigration Lawyers Association’s Arizona chapter, said she and her associates fear for their own well-being as well as the health of their clients.

“Detainees who are in the Arizona detention facilities are at a higher risk because of the conditions that they live in,” Florian said, “and we don’t want to be the ones bringing in the virus to them because we are still forced to continue with our hearings during a pandemic.”

The associations are also looking for the EOIR to provide detained immigrants and legal counselors with protective gear, such as N95 masks, eye protection and gloves, to be used when they meet in facilities that require such gear. The lawyers fear that if they are not provided with the equipment and can’t access them independently, they will not be able to meet with their clients when necessary.

“If we don’t have the required PPE (personal protective equipment) that is in shortage right now at the national level, not seeing our clients or being deprived of that does raise due process concerns because we need to be able to prepare our clients for their hearings,” Florian said.

Immigration lawyer Margarita Silva has been defending both detained and non detained immigrants for 18 years. On March 20, she arrived at an Arizona ICE detention facility to meet with a client with a makeshift collection of PPE that she provided herself.

Silva said that she and her colleagues began to bring their own protective gear to meet with clients in detention centers after they were told by ICE that they would not be allowed in without them.

“I had a friend who had just had a baby in November, and she’s like, ‘Well, I have some masks. You can have a couple,’” Silva said. “And then my husband uses protective eyewear for some of his jobs, and so he said, ‘Well, here you can use these.’ And I ended up getting some nitrile gloves.”

Silva was allowed into the facility wearing her provisional gear. She mentioned that a few of her colleagues have been wearing prescription sunglasses and swimming goggles to meet with clients in custody.

“There was no scrutiny at all,” Silva said. “They had a sign out front that said they were going to take our temperatures before we went in, and that if you had a fever, nobody was getting in. I went in with a group of about 10 people. Nobody’s temperature was taken.”

However, she said she was more shocked to learn she and her colleagues were the only ones in the facility wearing personal protective equipment.

“That was the other weird thing, was that it (the PPE requirement) only applied to the immigrants’ attorneys,” Silva said. “None of the guards were wearing it (protective gear). None of the admin staff were wearing it. Medical personnel inside the facility weren’t wearing any of this. Detainees aren’t wearing any of it.”

The immigration lawyers suing the EOIR also insist the Department of Justice make it possible for them to communicate with their detained clients to promote a safer environment, as the limited phone calls they currently have access to are simply not enough.

Silva said she and her associates have been given the green light to attend all Arizona detained cases by phone at this time. In the past, she said, attorneys had to submit a written request to a judge if they wanted to attend a short hearing by phone, which lawyers who lived far from facilities did frequently.

If the EOIR can’t meet their demands, the professional bar associations said, it must release the detained immigrants with “inadequate access to remote communication” with their legal representatives or immigration courtrooms.

Immigration attorneys and detained immigrants differ on whether detainees should be released at this time, Silva said. Many feel the courts should be closed entirely, she added, but others are frustrated that immigrants in custody will not be released as a result.

“A large amount of these people could be released safely, either on their own recognizance or on bond,” Silva said. “A lot of (immigrants in custody) are not people that would have been considered dangerous. They have houses and families to go to. So it’s not like they would just be wandering the streets. These are people that had jobs.”

Although non detained immigrants may not mind having their cases put on hold for the time being, she said, many want their cases to move forward if they’re forced to remain in custody.

Cronkite News

Judges, attorneys call for all immigration courts to close in wake of coronavirus | Cronkite News

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Video by Frankie McLister/Cronkite News

Meanwhile, the American Immigration Lawyers Association has taken the lead in the effort to temporarily suspend immigration courts. The organization initially joined with the National Association of Immigration Judges and the American Federation of Government Employees Local 511 to publish a statement on March 15 that expressed concerns for the health and safety of immigration prosecutors and attorneys.

Since then, 73 other organizations have joined their efforts to close the courts by addressing a letter to U.S. Attorney General William Barr. The letter, signed by organizations including the Arizona Coalition to End Sexual and Domestic Violence and Amnesty International USA, called on Barr to immediately close all U.S. immigration courts.

As the president of the National Association of Immigration Judges, Judge A. Ashley Tabaddor oversees a union of judges that works to improve the immigration court system and promotes the well-being of its members.

“It’s really a historic event that we have prosecutors and the defense attorney organizations come together with the judges, all agreeing that the immigration courts across the country should close temporarily and immediately to allow for the public health officials to get a handle on” the outbreak, said Tabaddor, whose court is in Los Angeles.

. . . .

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

Read Kelly’s full article at the link.

Not surprising that an organization like EOIR which has institutionalized the dehumanization of others — treating human lives as “production statistics” and touting cutting corners, skewed decisions, and unfair deportations as a “deterrent” — would eventually start “devouring its own.”

Mr. Peanut Devouring His Son
By Nina Matsumoto

PWS

04-07-20

HON. JEFFREY S. CHASE: Matter of R-A-V-P- (Bond Denial) — Maximo Cruelty, Minimal Rationality, Idiotic Timing! — BONUS: My “Monday Mini-Essay:” “ HOW EOIR’S ‘CAPTIVE COURTS’ INTENTIONALLY DISTORT AND PERVERT JUSTICE — The Shocking Failure Of Congress & The Article IIIs To Stand Up For Justice In America!”

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

https://www.jeffreyschase.com/blog/2020/4/6/bia-lock-them-up

Blog Archive Press and Interviews Calendar Contact

BIA: “Lock Them Up!”

In the words of the Supreme Court, “Freedom from imprisonment – from government custody, detention, or other forms of physical restraint – lies at the heart of the liberty that [the Due Process] Clause protects.”1 While imprisonment usually occurs in the criminal context, courts have allowed detention under our immigration laws, which are civil and (purportedly) non-punitive, only to protect the public from danger or to ensure the noncitizen’s appearance at future hearings.2 Case law thus requires a determination that a detained noncitizen does not present a danger to the public, a risk to national security, or a flight risk in order to be eligible for bond under section 236 of the I&N Act.

The Board of Immigration Appeals has acknowledged the complexity of such determinations. In it’s 2006 decision in Matter of Guerra,3 the Board suggested nine factors that an immigration judge may consider in deciding if bond is warranted. The list included whether the respondent has a fixed U.S. address; the length of residence, employment history, and family ties in this country (and whether such ties might lead to legal status); the respondent’s criminal record, and their record of appearing in court, fleeing prosecution, violating immigration laws, and manner of entry to the U.S. But the Board made clear that an immigration judge has broad discretion in deciding what factors to consider and how much weight to afford each factor.The ultimate test is whether the decision was reasonable.

What makes such a decision reasonable? Given what the Supreme Court has called “an individual’s constitutionally-protected interest in avoiding physical restraint,”4 Guerra’s broad discretion must be interpreted as an acknowledgment of the inadequacy of relying on “one size fits all” presumptions as a basis for overriding such a fundamental constitutional right. In allowing IJs to consider what factors to consider and how to weigh them, Guerra should be read as directing those judges to delve deeply into the question of whether the noncitizen poses a danger or a flight risk. Obviously, all recently-arrived immigrants are not flight risks, and all of those charged with crimes don’t pose a threat to society.As the trier of fact, immigration judges are best able to use their proximity to the respondent, the government, and the evidence and witnesses presented to determine what factors are most indicative of the likelihood that the respondent will see their hearings through to the end and abide by the result, or in the case of criminal history, the likelihood of recidivism.

In considering the continued custody of one with no criminal record, the risk to public safety or national security are generally not factors. And in Matter of R-A-V-P-,5 a case recently decided by the BIA, the immigration judge found that the respondent, an asylum-seeker with no criminal record, presented no risk on either of those counts. However, the immigration judge denied bond on the belief that the respondent was a flight risk, and it was that determination that the BIA was asked to consider on appeal.

How does one determine whether someone detained upon arrival is likely to appear for their hearings? It is obviously more complicated than whether one presents a threat to public safety, in which the nature of the criminal record will often be determinative. In R-A-V-P-, the Board repeated the nine Matter of Guerra factors, and added a tenth: the likelihood that relief will be granted.

As stated above, Guerra made clear that these were suggestions; the immigration judge could consider, ignore, and weigh whatever factors they reasonably found relevant to the inquiry. Furthermore, many of the listed Guerra factors were not applicable to the respondent. Guerra involved a respondent found to pose a danger to others. The nine factors laid out in the decision were not specific to the question of flight risk; clearly, all the listed factors were not meant to apply in all cases. As to the specific case of R-A-V-P-, obviously, someone who was detained since arrival can have no fixed address, length of residence, or employment history in this country. The respondent’s history of appearing for hearings also reveals little where all appearances occurred in detention.And the Guerra factors relating to criminal record and history of fleeing prosecution are inapplicable to a respondent never charged with a crime.

The Board’s decision in R-A-V-P- is very short on details that would provide meaningful context. There is no mention of any evidence presented by DHS to support a flight risk finding. In fact, the absence of any listing of government counsel in the case caption indicates that DHS filed no brief at all on appeal, a point that doesn’t appear to have made a difference in the outcome.6

The few facts that are mentioned in the decision seem to indicate that the respondent sought asylum from Honduras based on his sexual orientation. Not mentioned were the facts that the respondent entered as a youth, and that although he entered the U.S. without inspection, he made no attempt to evade immigration authorities after entry. To the contrary, he immediately sought out such authorities and expressed to them his intention to apply for asylum.These facts would seem quite favorable in considering the Guerra factors of the respondent’s “history of immigration violations,” manner of entry to the U.S., and attempts to “otherwise escape from authorities.”7 And although not mentioned in Guerra, the respondent is also represented by highly competent counsel, a factor that has been demonstrated to significantly increase the likelihood of appearance, and one within the IJ’s broad discretion to consider as weighing in the respondent’s favor.

Regarding the tenth criteria introduced by the Board, i.e., the likelihood of relief being granted, the persecution of LGBTI individuals is well-documented in Honduras, and prominently mentioned in the U.S. Department of State’s country report on human rights practices for that country. The State Department reported an increase in killings of LGBTI persons in Honduras in 2019, and that 92 percent of hate crimes and acts of violence committed against the LGBTI community went unpunished. Such asylum claims are commonly granted by asylum officers, immigration judges, and the BIA.

Yet the Board took a very strange approach to this point. It chose to ignore how such claims actually fare, and instead speak in vague, general terms of how “eligibility for asylum can be difficult to establish,” even for those who were found to have a credible fear of persecution. The Board next noted only that the immigration judge found that the respondent “did not demonstrate a sufficient likelihood that he would be granted asylum,” without itself analyzing whether such conclusion was proper.

In fact, the immigration judge did deny the asylum claim; a separate appeal form that decision remains pending before the BIA. But the Board missed an important point.The question isn’t whether the respondent will be granted asylum; it’s whether his application for asylum will provide enough impetus for him to appear for his hearings relating to such relief. From my experience both as an attorney and an immigration judge, the answer in this case is yes.One with such a claim as the respondent’s who is represented by counsel such as his will almost certainly appear for all his hearings.The author of the Board’s decision, Acting BIA Chair Garry Malphrus, did sit as an immigration judge in a non-detained court for several years before joining the BIA. I’m willing to bet that he had few if any non-appearances on cases such as the respondent’s.

Yet the Board’s was dismissive of the respondent’s asylum claim, which it termed a “limited avenue of relief” not likely to warrant his appearance in court. Its conclusion is strongly at odds with actual experience. Early in my career, I represented asylum seekers who arrived in this country in what was then known as “TRWOV” (transit without visa) status, which meant that the airline they traveled on was responsible for their detention. The airline in question hired private guards to detain the group in a Queens motel.As time passed, the airline calculated that it would be cheaper to let those in their charge escape and pay the fine than to bear the ongoing detention costs. The airline therefore opened the doors and had the guards leave, only to find the asylum seekers waiting in the motel when they returned hours later.None were seeking to abscond; all sought only their day in court.And that was the determinative factor in their rejecting the invitation to flee; none had employment records, community ties, or most of the other factors held out as more important by the BIA in R-A-V-P-. They chose to remain in detention rather than jeopardize their ability to pursue their asylum claims.

My clients in the above example had a good likelihood of being granted asylum. But volunteering in an immigration law clinic three decades later, I see on a weekly basis individuals with much less hope of success nevertheless show up for all of their hearings, because, even in these dark times, they maintain faith that in America, an impartial judge will listen to their claim and provide them with a fair result. In one case, an unrepresented asylum applicant recently released from detention flew across the country for a preliminary master calendar hearing because the immigration judge had not yet ruled on his motion for a change of venue.

So for what reason did the BIA determine that the respondent in R-A-V-P- would behave to the contrary? The Board made much of the fact that an individual who promised to pay for the respondent’s bus ticket and provide him with a place to live (an offer which the Board referred to as “laudable”) was a friend and not a family member of the respondent. But on what basis can it be concluded that living with a cousin rather than a friend increases the chances of his future appearance in court? In the absence of statistics or reports that support such determination, is this fact deserving of such discretionary weight? The Board felt it could rely on this factor simply because it was mentioned in Matter of Guerra. But while that decision requires a finding that the IJ’s conclusion was reasonable, the decision in R-A-V-P- appears to be based more on a hunch than a reasoned conclusion, with the Board referencing seemingly random factors in support of its conclusion without explaining why such factors deserve the weight they were afforded, while ignoring other more relevant factors that would weigh in favor of release.

The respondent has now been detained for well over a year, including the seven months his bond appeal lingered before the Board, a very significant deprivation of liberty. The respondent’s asylum appeal remains to be decided, likely by a different Board Member or panel than that which decided his bond appeal.But now that the majority of the Board has voted to publish the bond denial as a precedent decision, what is the likelihood that any Board member will review that appeal with an unbiased eye?

As a final point, although the drafting of the decision likely began months earlier, the Board nevertheless chose to allow the decision to be published as precedent in the midst of an unprecedented health pandemic that poses a particular threat to those detained in immigration jails. So at a time when health professionals and numerous other groups are pleading for the government to release as many as possible from immigration detention centers, the BIA chose to instead issue a decision that will likely lead to an opposite result.

Notes:

Zadvydas v. Davis, 533 U.S. 678, 690 (2001).

Ibid; Robert Pauw, Litigating Immigration Cases in Federal Court (4th Ed.) (AILA, 2017) at 418.

24 I&N Dec. 37 (BIA 2006).

Kansas v. Hendricks, 521 U.S. 346, 356 (1997).

27 I&N Dec. 803 (BIA 2020).

Appeals may be summarily dismissed due to the failure to file a brief or to sufficiently state a ground for appeal. However, the BIA does not view an appeal or motion as unopposed where ICE files no brief.

Matter of Guerra, supra at 40.

Copyright 2020 Jeffrey S. Chase. All rights reserved.

APRIL 6, 2020

NEXT

Like “Firing Randomly Into a Crowd”

Repriented with permission.

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

HOW EOIR’S “CAPTIVE COURTS” INTENTIONALLY DISTORT AND PERVERT JUSTICE — The Shocking Failure Of Congress & The Article IIIs To Stand Up For Justice In America!

By Paul Wickham Schmidt

“Courtside” Exclusive

April 6, 2020

Jeffrey and I both get to pretty much the same “bottom line” here. But, as usual, he is more “nuanced” in his approach.

Here’s my earlier, less subtitle, take on this outrageously wrong and unjust precedent by Billy Barr’s wholly-owned subsidiary, the BIA: https://immigrationcourtside.com/2020/04/02/timing-is-everything-during-crisis-bia-makes-time-for-a-little-gratuitous-cruelty-what-could-be-better-during-worldwide-pandemic-humanitarian-disaster-than-an-attempt-to-narrow-the-criteria-for-c/

Certainly, the DOJ’s two-decade program, under Bush, Obama, and now Trump, of systematically excluding from the BIA (and also largely from the Immigration Judiciary, with a more than 9-1 government/private sector hiring ratio) any acknowledged immigration and human rights expertise from those who actually represent and work with asylum applicants is paying huge dividends for Trump’s nativist immigration agenda.

A “captive BIA” well-attuned to “not rocking the boat” and “implementing the Attorney General’s priorities” abandons due process and fundamental fairness for individuals. Instead, they crank out an endless stream of one-sided pro-DHS-enforcement “precedents.”

Led by the Supremes’ “supreme abdication of judicial duties” in Chevron and Brand X, the Courts of Appeals and sometimes the Supremes themselves “defer” to “any old interpretation” by the BIA rather than undertaking the more challenging search for the “best interpretation.” In immigration law, “deference” to the BIA “tilts the playing field” overwhelming in favor of DHS and against individuals and due process.

And, if the BIA occasionally lets the immigrant “win” or at least not outright “lose,” one or two precedents, Sessions, Whitaker, and Barr have shown a frequent willingness to merely step in and change the results. Sometimes, they do this on cases decided years ago, even when DHS doesn’t ask them to. They openly and aggressively are carrying out a predetermined White Nationalist, nativist agenda. Because, they can!

If this sounds like a parody of due process, that’s because it is! But, the Supremes and the rest of the Article IIIs have been studiously looking away while due process, fundamental fairness, and equal protection are trampled in Immigration Court for more than a half-century. Why step up to the plate now?

Although it’s hard to do under Chevron, the BIA does sometimes so clearly ignore the statute or come up with such “off the wall” interpretations that the Article IIIs occasionally have to distinguish Chevron and intervene. In other words, generally screwing immigrants is OK by the Article IIIs; but, at some point looking totally feckless or downright idiotic by rubber stamping the BIA’s most outlandish anti-immigrant rulings is a “no no.” Bad for their reputations, law school speaking tours, and recruitment of the “best and brightest” clerks that the “Supremos” and other Article IIIs enjoy so much.

Another “big advantage” of a captive and fundamentally unfair BIA is that its “perversions of justice” become a “self-fulfilling prophecy.” The respondent in R-A-V-P- should not only have been released on bond, but his asylum case could easily have been granted in a “short hearing” in a system committed to a fair interpretation and application of asylum law. That might have led to the release of others and the more efficient granting of other similar cases. That actually would be an huge step forward in a dysfunctional system running a largely self-inflicted backlog of approximately 1.4 million cases.

Instead, denying meritorious cases creates hugely inflated denial rates. This supports the Trump Administration’s intentionally false narrative that all asylum claims are frivolous or fraudulent.

And, naturally, if the claims are overwhelmingly non-meritorious, who cares if we give asylum applicants any due process or not. Just summarily deny them all and you’ll be right 90% of the time.

That’s probably why Trump has gotten away with his biggest outrage: Simply eliminating the statutory right to apply for asylum at the border by Executive fiat, confident that the Supremes and the Article IIIs will never have the guts to effectively intervene and hold him accountable merely for arbitrarily inflicting potential death sentences on asylum seekers. After all, they are just “aliens,” not really “humans” or “persons” under the warped views of the Roberts’ Court majority! “Dred Scottification in action.”

Also, by denying meritorious claims for asylum seekers already in the U.S., the BIA “sends a message” that asylum seekers shouldn’t bother applying — they can’t and won’t win no matter how meritorious their cases. And, what’s more, the BIA will use the manipulated, improperly inflated “denial rates” to show that there is “little likelihood of success” on the merits of any asylum claim.

Under R-A-V-P–, this virtually guarantees punitive DHS detention, serving as both a punishment for asserting rights and a further deterrent to asserting claims in Immigration Court. Heck, in a “best case scenario” for Trump, COVID-19 will wipe out all detained asylum seekers, thereby eliminating that “problem.”

The system is a farce. But, it is a farce that both Congress and the Article IIIs have enabled.

Asylum seekers and other migrants deserve justice from America. When they will finally get it from a system intentionally rigged against them, and judges and legislators all too often unwilling to acknowledge or recognize their humanity, remains to be seen.

Due Process Forever! Captive Courts Never!

PWS

04-07-20

INSPIRING AMERICANS: Christina Fialho & Freedom For Immigrants Fight To End The “New American Gulag!”👍🏼👍🏼👍🏼👍🏼👍🏼😇😇😇😇😇

Lorena García Durán
Director, U.S. Ashoka Support Network

https://apple.news/A-C1bq74iQ4Kil76C8f9hjQ

From Forbes:

The United States operates the largest immigration detention system in the world. More than 50,000 immigrants are detained every day in county jails and for-profit prisons that contract with Immigration & Customs Enforcement (ICE) — at great human cost, and at a cost to taxpayers of $3 billion per year. The current administration has drastically expanded the system, establishing over 20 new detention centers (17,000 more people per day). Christina Fialho, an Ashoka Fellow since 2016 and co-founder of Freedom for Immigrants, is working not only to stop this expansion, but to end immigration detention altogether. Ashoka’s Lorena García Durán caught up with her to learn more.

You co-founded Freedom for Immigrants eight years ago with Christina Mansfield. What was the main goal you set out to achieve?

We want to build a country where no person is imprisoned for crossing a border. Freedom for Immigrants is working to achieve this goal through two main strategies. First, we’ve built a network of 4,500 volunteers that is a consistent watchdog inside this system. We started by building the first visitation program in California. Now volunteers in our network visit people in 69 immigrant prisons in nearly 30 states every week. Second, we launched a community-based alternative to free over 250 people by paying their immigration bonds. Once they are released, we connect them to housing, lawyers, transportation, and mental health services — and we do it all for only $17 per person per day, far less than the government pays to detain people (roughly $165 per person per day).

We are proving that our strategy works. Freedom for Immigrants drafted and co-sponsored the Dignity Not Detention Act — composed of the first statewide bills in the country to stop detention expansion and give the state attorney general oversight powers. These bills passed in California — a state that used to detain a quarter of all people in immigration detention. Since Dignity Not Detention went into effect, seven municipalities ended their ICE contracts. We then worked in a statewide coalition of immigrant rights groups to pass another bill to phase out private prisons in California. Together, we are proving that abolition is possible in the 5th largest economy in the world.

You talk a lot about the importance of creativity and risk taking in the face of obstacles. What are some obstacles you’ve overcome along the way?

Since 2013, we’ve faced “a litany of retaliatory acts by DHS in response to our public advocacy,” as Judge Andre Birotte Jr. explained in his recent court ruling granting us a preliminary injunction against ICE. We’ve had over a dozen of our affiliated visitation programs suspended when we’ve published articles or spoken out in favor of a new system. When we worked with Orange Is The New Black to dramatize the reality of detention, our national hotline was terminated. Private prison companies have muzzled us for reporting sexual assault in detention, and I was personally barred from visiting at certain detention facilities. However, we have successfully moved the work forward through creative persistence, community mobilization, and legal action when necessary.

Speaking of obstacles, ICE just ended all social visitation in response to COVID-19. How is Freedom for Immigrants responding?

If ICE is truly serious about ensuring the health and wellbeing of people in its custody, the agency would release immigrants, beginning with vulnerable populations. Other countries like Spain and Iran are releasing people in response to Covid-19. In fact, Spain’s Interior Ministry has begun a gradual release of people from immigration detention whose deportation cannot be effected before March 29. Freedom for Immigrants has launched an interactive map that tracks ICE response to Covid-19, and we have trained our national hotline volunteers to respond to medical negligence.

. . . .

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

Read the rest of Lorena García Durán‘s interview of Christina Fialho at the above link.

In my experience, there are a few cases where ICE could show on an individualized basis that temporary detention is necessary to protect the public or insure appearance. But, such cases would be the “exception to the rule,” a very small percentage of today’s “New American Gulag” population.

As this article points out, in most cases government grants to enable community placements and legal representation actually would be much cheaper than today’s wasteful funding of the Gulag.

Unlike the Gulag, it also would promote due process, fundamental fairness, best practices, docket efficiency, and most important, maximize the chances of fair results.

Under the Trump regime, the cruel, costly, and counterproductive Gulag has expanded as a means of punishing, coercing, dehumanizing, and deterring those asserting legal rights, particularly the right to apply for asylum and mandatory protections like withholding of removal and protection under the Convention Against Torture (“CAT”).

It also is used by the regime to hinder the statutory and constitutional right to counsel and to promote biased results. Consequently, individuals entitled to relief and protection under our laws are instead railroaded out of the country by judges employed by the regime who have been instructed to disregard migrants’ rights and follow unethical and legally incorrect “precedents” intentionally misconstruing the law to make release from detention unnecessarily difficult and to promote unjust removals.

In other words, a systemic “Due Process Disaster” and a national disgrace.

Thanks to Christina and her team at Freedom for Immigrants for their courageous efforts to stand up to tyranny and defend due process. You certainly are brave front line fighters for the New Due Process Army!

Due Process Forever. The New American Gulag Never!

PWS

04-07-20

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Key Excerpt:

Read the entire brief, which contains our proposed solution for how the Immigration Courts could conduct essential operations consistent with health, safety, and due process during this pandemic: Amicus brief_NIPNLG

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

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HOW EOIR’S “CAPTIVE COURTS” INTENTIONALLY DISTORT AND PERVERT JUSTICE — The Shocking Failure Of Congress & The Article IIIs To Stand Up For Justice In America!

By Paul Wickham Schmidt

“Courtside” Exclusive

April 6, 2020

Due Process Forever! Captive Courts Never!

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