"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
The Biden administration will pause its signature effort to reform asylum processing at the border, Department of Homeland Security officials confirmed Wednesday.
The so-called asylum processing rule, which the administration launched with great fanfare in 2022, allowed asylum officers to grant and deny asylum to migrants at the southern border.
Administration officials say the pause is a temporary measure designed to ensure that the country’s immigration agencies are prepared for a potential increase in border crossings after the end of Title 42, a pandemic-era policy that allows border agents to quickly turn back migrants.
But critics say the pause signals President Biden’s latest move away from reforming the asylum process and back toward Trump-style restrictions at the southern border.
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Read Hamed’s complete’s article at the link.
Like the term “temporary,” a “pause” is a bureaucratic “term of art” used to deflect attention from what’s really happening. “Pauses” can last indefinitely. If, after two years to work on it, and touting it as a transformational change, the Biden Administration can’t put this fairly straightforward “no brainer” change into effect, it’s not obvious what the “right time” would be!
Granting much more asylum at the AO level nearer to the time of initial encounter is one way of gaining “leverage” and avoiding the EOIR backlog — without stomping on anyone’s rights!The latter is key!
I think most experts would say that it should have been much easier to implement this positive change than some of the new, tone-deaf, bone-headed “proposed restrictions” on asylum, re-instituting dehumanizing and problematic “family detention,” and removing 30,000 non-Mexicans per month to potential danger, exploitation, and death in Mexico. These moves are guaranteed to provoke strong opposition as well as generating some rather unhappy publicity whenthe situation in Mexico gets out of control, as it inevitably will.🏴☠️
Remember folks, the Biden Administration claimed a year ago that it wanted to terminate Title 42 at the border. After an additional year, they still don’t have a plan for following the law! No wonder some critics perceived that the Biden Administration was actually relieved when a right-wing Federal Judge abused his authority to block the ending of Title 42.
Most experts doubt that the Biden Administration has the “right team” (pictured above) in place to restore fair, competent, due-process-compliant asylum adjudication at the border or anywhere else! PHOTO CREDIT: Ellin Beltz, 07-04-16, Creative Commons License, https://creativecommons.org/licenses/by-sa/4.0/. Creator not responsible for above caption.
Instead of preparing, planning, and “knocking some heads” within the bureaucracy, the Administration has squandered the last year thinking up new anti-asylum gimmicks, rather than making the long-overdue changes at EOIR, the Asylum Office, and the Refugee Program necessary to admit refugees legally, robustly, and timely — in other words to restore the rule of law as they had promised.
Oh, for some competence, backbone, and leadership in the Biden Administration’s immigration policy bureaucracy! Never has America needed the Ambassadorial Level position of Refugee Coordinator more than now! Unfortunately, that important role established by the Refugee Act of 1980 was “swallowed and digested” by a hostile bureaucracy years ago. Alex Aleinikoff, where are you when your country needs you?
Hey listen! Quinn Dombrowski from Berkeley, USA Creative Commons Attribution-Share Alike 2.0
EOIR to Host Listening Session Seeking Input on Enhancing Pro Bono Representation
SUMMARY: The Executive Office for Immigration Review (EOIR) will host six listening sessions to facilitate conversations with law school clinical communities nationwide about creating best practices for practical and clinical representation and empowering immigration judges and staff to leverage the pro bono resources law schools provide. EOIR’s objective is to build the capacity of representation in immigration court proceedings by cultivating and maintaining interest in pro bono advocacy.
As the “Access EOIR” initiative continues, EOIR seeks to engage law school clinical communities about their needs. During the meeting, EOIR would like to hear from participants about:
Any communities or areas of focus for law school clinics, including whether they represent noncitizens in removal proceedings, and whether they focus on specific case types or dockets.
The average number of removal cases handled per year.
The types of interactions with immigration courts, especially for those not
providing representation in removal proceedings.
The intake processes across law school clinics.
Suggestions on how EOIR can better support law school clinics.
EOIR encourages professors and leaders from law schools to attend the meeting for their clinic’s region but welcomes all such individuals to attend any session that works for their schedules. Professors and leaders of law school clinics who are unable to attend any of the sessions, including those who were unaware of the sessions in advance, may request a session by sending the name(s) of the attendee(s) and the law school clinic, the date and time requested, and a valid email address to: engagewitheoir@usdoj.gov.
DATES:
April 14 at noon (CT) –
April 17 at 1:00pm (ET) – April 20 at 10:30am (ET) – April 21 at noon (PT) – April 27 at 1:00pm (ET) – April 28 at noon (PT) –
AR, IA, IL, IN, KY, MI, MN, MO, NE, ND, OH, SD, TN, WI
DC, DE, MD, NC, NJ, PA, SC, VA, WV CT, MA, ME, NY, PR, RI, VT
CA
FL, GA, LA, TX
From my vantage point, the current EOIR system is not particularly “pro bono friendly!” So, this is a chance for those of you who are actually providing, or trying to provide pro bono assistance to weigh in with your ideas on how the system could be better!
Trump Federal Judges Tilt Against Democracy Republished under license
Washington Post Columnist Ruth Marcus, moderates a panel discussion about chronic poverty with Education Secretary John B. King (blue tie) and Agriculture Secretary Tom Vilsack (striped tie), during the National Association of Counties (NACo), at the Washington Marriott Wardman Park, in Washington, DC, on Tuesday, Feb. 23, 2016. U.S. Department of Agriculture photo by Lance Cheung.
Congratulations are in order for Judge Matthew Kacsmaryk. The competition is fierce and will remain so, but for now he holds the title: worst federal judge in America.
Not simply for the poor quality of his judicial reasoning, although more, much more, on this in a bit. What really distinguishes Kacsmaryk is the loaded content of his rhetoric — not the language of a sober-minded, impartial jurist but of a zealot, committed more to promoting a cause than applying the law.
Kacsmaryk is the Texas-based judge handpicked by antiabortion advocates — he is the sole jurist who sits in the Amarillo division of the Northern District of Texas — to hear their challenge to the legality of abortion medication.
And so he did, ruling exactly as expected. In an opinion released Friday, Kacsmaryk invalidated the Food and Drug Administration’s 23-year-old approval of the abortion drug mifepristone and, for good measure, found that abortion medications cannot be sent by mail or other delivery service under the terms of an 1873 anti-vice law.
Even in states where abortion remains legal. Even though study after study has shown the drug to be safe and effective — far safer, for instance, than over-the-counter Tylenol. Even though — or perhaps precisely because — more than half of abortions in the United States today are performed with abortion medication.
My fury here is not because I fear that Kacsmaryk’s ruling will stand. I don’t think it will, not even with this Supreme Court. Indeed, another federal district judge — just hours after Kacsmaryk’s Good Friday ruling — issued a competing order, instructing the FDA to maintain the existing rules making mifepristone available. Even Kacsmaryk put his ruling on hold for a week; the Justice Department has already filed a notice of appeal; and the dispute is hurtling its way to the Supreme Court. (Nice work getting yourselves out of the business of deciding abortion cases, your honors.)
No, my beef is with ideologues in robes. That Kacsmaryk fits the description is no surprise. Before being nominated to the federal bench by President Donald Trump in 2017, Kacsmaryk served as deputy general counsel at the conservative First Liberty Institute. He argued against same-sex marriage, civil rights protections for gay and transgender individuals, the contraceptive mandate and, of course, Roe v. Wade.
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“Ideologues in robes!” That’s also a good description of many of the judges appointed by Sessions and Barr to the U.S. Immigration Courts. While there have been a few improvements in the appointment process, the Biden Administration has not effectively addressed the serious institutional dysfunction and anti-immigrant bias at EOIR.
And, let’s remember, EOIR is a “court system” affecting millions of lives and futures that is 100% controlled by the Administration. If this Administration is unwilling or unable to embrace and advance progressive values in a court system they own, how are they going to address other issues of justice, gender, and racial,equity in America?
Indeed, this tone-deaf Administration is now at war with more than 33,000 progressive groups and experts about their scofflaw “death to asylum seekers” regulations. The Administration’s immoral, impractical, and illegal proposal to send up to 30,000 legal asylum seekers to Mexico without due process or fair consideration of their claims for legal protection basically replicates, and in some ways goes even beyond, Kacsmaryk‘s endorsement of the discredited and proven to be deadly “Remain in Mexico” program instituted by Trump and Miller. See, e.g., https://immigrationcourtside.com/wp-admin/post.php?post=26734&action=edit.
Here two articles from Substack that sum up the GOP’s all-out assault on individual rights, freedom, and democracy — basically an assault on YOU and those YOU value as fellow human beings:
From Jay Kuo:
Jay Kuo American Author, Producer, CEO of The Social Edge PHOTO: Facebook
Remember folks, this began as an attack on immigrants and their rights. But, as those of us in the NDPA recognized and predicted, it didn’t end there!
It’s worthy of note that unqualified right-wing extremist hack Judge Matthew Kacsmaryk “honed” his misogynist attack on YOUR individual rights with a scurrilous attack on the rights and humanity of legal asylum seekers.
Dems failure to present a powerful, unified, well-organizeddefense of the human and legal rights of all people has helped fuel the dehumanization and“Dred Scottification” of almost all members of our society except a certain vocal and well-organized minority of far right White Nationalist extremists, their supporters, and their “fellow travelers!”
The answer:
Register to vote;
Speak out;
Vote every Republican out of office at every level of government!
As has been shown, YOU can’t rely on the Biden Administration and so-called “centrist Dems” to do this for YOU! They have shown a disturbing willingness to “sell out” individual groups — like asylum seekers, migrants, social justice advocates, and transgender youth — when they believe (even if wrongly) that it is politically expedient to do so!
YOU are going to have to use the democratic tools still available to control your own future and the destiny of generations to follow! YOU are getting a very graphic illustration of the “alternate future.” And, notably, it has no place for YOU and YOUR values!
🇺🇸 Due Process Forever! It’s more than a slogan — it’s a movement!
On Friday we had a challenging issue with our Asylum case in immigration court.
The case was heavily documented and our NYC team did such an amazing job with the package that DHS was already willing to stipulate to a Withholding of Removal (which actually requires proving a higher probability of persecution than asylum, but is a much more restrictive form of relief). Client is a bona fide Falun Gong practitioner and has publicly opposed the Chinese government’s vicious and ruthless persecution of FLG followers in China, so it was a victory on its merits just from looking at the filing and before taking testimony.
However, the reason the government would not stipulate to Asylum is because there was a one year issue in the case. Normally, clients are required to apply for asylum within one year of their last entry into the United States, unless they can prove they qualify for one of the exceptions in the statute.
This was an unfortunate case where USCIS lost the filing and by the time client found out about this, she was so mentally distraught with the persecution of her family back home that she simply could not muster the necessary focus to work on the application. Her symptoms persisted for two years until after her family was released and she finally was able to file.
We showed several receipts, USPS labels, brought a witness who was aware of the challenges client was facing at the time, and took detailed testimony where client explained the mental anguish she was suffering at the time and how this affected her ability to focus.
Denver IJ Grants CAT, Withholding Relief (El Salvador, PSG)
Prof. Elizabeth Jordan writes: “DU clinic students Anni Winan and Sharon Malhotra got a win in Judge Caley’s courtroom a few weeks ago on behalf of a Salvadoran who fears return to El Salvador under the State of Emergency declared by President Bukele. Notably, Caley found “Salvadoran men with tattoos erroneously perceived to be gang members” cognizable as a PSG, departing from Matter of EAG, and found that the conditions in Salvadoran prisons under the SOE amount to torture. [ICE did NOT appeal.] We would highly recommend Dr. McNamara as an expert as well.”
[Hats way off to Prof. Jordan (Director, Immigration Law & Policy Clinic, University of Denver Sturm College of Law) and her students!]
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Congrats to everyone involved! Fairness, scholarship, timeliness, respect, and teamwork succeeds!
Common threads:
Great representation of the respondent;
Great preparation;
A well-prepared, thoughtful ICE Assistant Chief Counsel committed to working for a fair, correct, result;
An Immigration Judge who inspired the parties to excellence, paid attention to the law and the issues, listened carefully, and allowed both counsel to do their jobs;
An Immigration Judge who encouraged the parties to work cooperatively, narrow the issues, and focus on the key dispositive issue;
Great teamwork and professionalism produced a great result, with efficiency, and without gimmicks or corner cutting.
What’s needed:
Precedents establishing, enforcing, and reinforcing due process and best practices;
Working with the private bar and NGOs to establish universal representation;
Prioritizing represented grantable cases on the docket;
Dynamic judicial leadership focused on institutionalizing due process, fundamental fairness, and correct, high-quality decisions;
Highest quality judicial training and continuing judicial education. (It exists out here in the “real world” with inspiring, effective, creative, problem-solving“practical scholar/teachers.” But, according to EOIR sources, currently available only through the NAIJ!)
Due process, fundamental fairness, best practices, and maximum efficiency, consistent with due process, can be achieved at EOIR! It just takes expertise, will, a plan, and the right personnel to make it happen! Leadership makes a difference!
On April 4, 1968, I was a senior in high school when Dr. Martin Luther King Jr. was murdered in Memphis, Tennessee. That weekend I had been attending a planning meeting in Richmond, Virginia, for mobilizing white teens from suburban churches to serve in inner-city projects in the District of Columbia and Baltimore.
ABOUT THE AUTHOR
Irv Williams is a native of Baltimore, with family roots in the Northern Neck of Virginia. He moved to Maine in 1973 and is a resident of Peaks Island.
Driving home on Sunday afternoon I arrived at the Baltimore city line, about five miles from my house, to find National Guard troops and tanks blocking off access to the city. I was allowed to pass only on the condition that I drive directly home.
Today I know the real reason I was allowed to pass by those armed soldiers was that my face was white, not Black. Dr. King was only 39 years old when he was murdered.
William Page was only 25 years of age when he was lynched in August 1917 in Lilian, Virginia. My mother would have been a toddler sleeping in her crib at home, just a mile away from the schoolyard in which he was hanged. Newspaper reports state that a mob of about 500 men assembled to commit the murder.
William Page would be the last Black man to be lynched in my mother’s home county of Northumberland, but the lynchings would continue on for another seven years, claiming the lives of nine additional Black men across Virginia.
I am now just a bit older than my mother was when she died. At 72, I look back over a lifetime of witnessing racial injustice through the segregation of schools and other public and private facilities. The false doctrine of “separate but equal” was then in full force throughout Virginia, where both of my parents were born and raised.
I carry childhood memories of seeing “White” and “Colored” water fountains in the county courthouse. Of visiting the family doctor whose small brick office behind his house had separate waiting rooms. Hearing my grandmother talk about “the colored” schools that a neighboring county closed for five full years rather than integrate, meanwhile taking public funds to open white academies. Knowing that nearby was a “colored beach” that was a small sliver of sand allotted to Black children. And knowing that there would never be any Black worshippers or preachers at the church revival meetings where my grandmother played piano.
Looking back at all of those memories, I know full well that the privilege to pass by those National Guard tanks in 1968 had come at the expense of others, sometimes in deadly ways.
In his 1964 book “Why We Can’t Wait,” Dr. King wrote: “Armies of officials are clothed in uniform, invested with authority, armed with the instruments of violence and death and conditioned to believe that they can intimidate, maim or kill Negroes with the same recklessness that once motivated the slaveowner.”
Now, nearly 60 years later, we see that Dr. King is still being proven right with the brutal beating death of Tyre Nichols in Memphis. It wasn’t a rope like they used on William Page, or a bullet like the one that felled Dr. King, but the stun gun, pepper spray, fists and boots of police officers who have been charged with murder in an incident that equals the terror of the August night when 500 men watched William Page die.
Must we wait for another hundred years to pass for this senseless killing to stop? The simple answer is, no, we can’t wait.
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The work of achieving due process and equal justice for all persons in America, as required by our Constitution, remains urgent and unfinished!
Indeed, under the “New Jim Crow” GOP and it’s noxious, intellectually dishonest, morally challenged “leaders,” our nation has actually regressed from some of the key achievements that Dr. King championed.
James “Jim” Crow Symbol of American Racism. If YOU don’t share the GOP White Nationalist insurrectionist “vision” of an American wracked with hate, exclusion, dehumanization, inequality, bias, bogus myths, and return to a “whitewashed history that never was,” YOU must stand against the “21st Century Jim Crow Mob” that seeks to seize control over YOUR country.
It’s particularly critical for the next generations to decide whether they want to live in a better, fairer, more tolerant world, or be forever captive in a White Supremacist, misogynist, fearful past, beholden to a “whitewashed” version of history that never was!
“Habib Al-Adily, a citizen of Iraq and a lawful permanent resident of the United States, was late in returning his rental car to Thrifty-Rent-a-Car (Thrifty). He was indicted under a Michigan statute criminalizing the willful failure to timely return rental property, an offense to which he pleaded guilty and for which he was ordered to pay over $10,000 in restitution to Thrifty. Two Immigration Judges (IJs) and the Board of Immigration Appeals (BIA) concluded that these circumstances warranted Al-Adily’s deportation for having been convicted of an aggravated felony under the Immigration and Nationality Act (INA). For the reasons set forth below, we GRANT Al-Adily’s petition for review, REVERSE the BIA’s decision, and REMAND to the BIA with instructions to terminate the removal proceedings against him. … A cursory review of Exhibit A reveals that Thrifty’s actual loss was clearly less than $10,000. And DHS certainly did not meet its burden of proving by “clear and convincing” evidence, see id. (quoting 8 U.S.C. § 1229a(c)(3)(A)), that the loss exceeded that amount. … Despite admonitions by both the BIA and the Supreme Court that restitution orders must be considered with caution, especially where the restitution amount was initially determined under a lower evidentiary standard, the IJs and the BIA deferred uncritically to the state court’s determination in conflating the restitution amount with Thrifty’s actual loss. In denying Al-Adily’s motion to reconsider notwithstanding this error, the BIA abused its discretion.”
[Hats off to Frank G. Becker!]
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Although admittedly Circuit Judge Siler agreed with the BIA, I concur with Judge Gilman that this is more sloppy work on “the basics” coming out of EOIR.
EOIR has a severe, chronic “quality control/expertise/due process” problem that got much worse during the Trump years, when far too many Immigration Judges with questionable qualifications were elevated to the bench. Garland hasn’t solved this festering problem in the more than two years he has been in office.
And, it’s highly unlikely that just adding Immigration Judges — without a huge upgrade in qualifications, training, and supervision from a revamped, truly expert BIA — is going to solve these problems.
If anything, aimlessly adding more bodies to a mal-functioning system is just going to increase the chaos and the already unacceptable level of inconsistent results in life-or-death matters.
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings LawProfessor Audrey Macklin University of Toronto Law Faculty PHOTO: U of Toronto
At almost 4,000 miles, the United States’ northern border is about twice as long as the U.S.-Mexico border — much of it wild, unmarked and dangerously cold for half the year. And yet, human smuggling and deaths at the U.S.-Canada border have not been a major phenomenon, as they have been down south. Nor has Canada poured billions of dollars into a network of walls, fences, robotic dogs and militarized border patrol. It is also true that historically the number of asylum seekers and migrants seeking entry to Canada has been relatively low.
But the ills of the U.S.-Mexico border seem bound to spread northward, now that Canada reached a deal with the Biden administration to expand a 2004 agreement to repel Canada-bound asylum seekers back to the United States (and vice versa).
As U.S. policies toward asylum seekers grew harsher from 2017 on, the number attempting to enter Canada increased. Instead of appealing to its southern neighbor to do better, Canada is coordinating with the U.S. to pass the buck on the legal obligation to protect refugees, which both countries undertook when they signed the Refugee Convention and Protocol more than 50 years ago. Their current approach foists responsibility onto poorer, less stable countries that are already doing more than their share.
Both the U.S. and Canada have pursued this under a “safe third country” rule, which enables a country to return asylum seekers to a nation they have passed through on their journey if it is considered safe and deemed to have a fair process for seeking protection. That “safe third country” then has the responsibility to determine their claims.
. . . .
This has been labeled a crisis, but it simply isn’t, especially when one considers that 85% of the world’s refugees are hosted in lower- and middle-income countries. Furthermore, Canada knows how to manage refugee inflows decently when it chooses to do so: Over 160,000 Ukrainian refugees have been welcomed during the past year.
. . . .
The Safe Third Country Agreement and related policies subvert the obligations to which Canada and the U.S. are subject under international refugee law. They undermine the existing global system of protection. But most tragically, they abandon principle and humanity, and set off a chain reaction that ends up returning refugees to persecution.
Karen Musalo is a law professor and the founding director of the Center for Gender and Refugee Studies at UC Law, San Francisco. Audrey Macklin is the director of the Centre for Criminology and Sociolegal Studies at the University of Toronto.
The obvious answer is to establish a fair, timely, generous asylum adjudication system at ports of entry and to dramatically increase the number of legal refugees who can come from countries in Latin America, particularly the Northern Triangle. If you build a functional legal refugee and asylum system refugees will use it.Why wouldn’t they?
A legitimate refugee and asylum system results in permanent admission with permission to work that leads to green cards and, eventually, citizenship for those who choose the latter. It’s quite different from ad hoc, nationality and numerically limited use of discretionary “parole” stratus. Parole status lacks transparent criteria, does not necessarily prioritize refugees and asylees as the law requires, and most seriously has no “built in” path to permanent status.
Consequently, “parolees” must either apply under a incredibly backlogged asylum system in the U.S. — thus guaranteeing delay and unnecessarily adding to the already monster backlog — or find themselves “in limbo” after two years and clearly becoming both a target and “political football” for restrictionists. And, there can be little doubt that even if the Biden parole program survives pending court challenges, it will immediately be terminated by any future GOP Administration.
Making the existing legal system work in a durable, fair, and properly generous manner to protect refugees is clearly the way to go! It would be hugely beneficial to both both the refugees and our nation! Why the Biden Administration insists on scofflaw “deterrence only” gimmicks that advance the racist/nativist agenda of the losers of the 2020 election is beyond me!
A.G. Merrick Garland’s continuing operation of the “EOIR Clown Show,” at taxpayer expense, is costly in more ways than one! “Any reason to deny” proves too much even for the hyper-conservative 5th Circuit! PHOTO: Public Domain
Dan Kowalski reports for LexisNexis Immigration Community:
“On May 18, 2022, this court granted Giscard Nkenglefac’s petition for review of the Board of Immigration Appeals’s (BIA) dismissal of petitioner’s appeal from the immigration judge’s (IJ) denial of his application for relief from removal. See Nkenglefac v. Garland, 34 F.4th 422, 430 (2022). Because the IJ’s adverse credibility determination was not supported by evidence in the record, we determined that the BIA erred in affirming it and remanded the case to the BIA. The petitioner filed a timely application for attorneys’ fees under the Equal Access to Justice Act (EAJA). We find that petitioner is entitled to attorneys’ fees under the EAJA and award $56,169.79.”
Homero Lopez, Jr. Director & Co-Founder Immigration Services & Legal Advocacy New Orleans, LA PHOTO: ISLA websiteEmma Morley Paralegal Immigration Services & Legal Advocacy New Orleans, LA PHOTO: ISLA website
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Wouldn’t it be cheaper and better for everyone if Garland finally “cleaned house” at EOIR, appointed and retained only well-qualified expert judges at both the trial and appellate level, replaced incompetent administrators, and ended the toxic — and costly — “any reason to deny culture” at EOIR?
When the DOJ is being “pasted” on wrongful decisions denying asylum by the 5th Circuit, everyone but Garland knows that “the EOIR Clown Show has got to go!”🤡
Make no mistake about it! Garland’s failure to reform EOIR into a due-process-focused expert tribunal willing to stand up for the legal rights of asylum seekers and to require “best practices” with respect to access to representation at the border and elsewhere is a major contributing factor to the Biden Administration’s deadly humanitarian disaster and abrogation of the rule of law for asylum seekers at the Southern Border. It didn’t have to be this way!
Why is this “preventable disaster” happening under a Dem Administration that ran on an (apparently false) pledge to restore due process and the rule of law for asylum seekers and other migrants? How can we stop it and prevent it from happening again in the future?
I daresay that many humanitarian experts warned the Biden Administration that without fundamental positive changes, better, courageous, expert, inspirational leadership, and long-overdue administrative reforms at DOJ, DHS, and the White House, disasters would unfold across the board. That’s exactly what has happened! It’s also infecting the entire legal system and inhibiting social justice in America.
But , unless and until social justice advocates come up with a better political approach to the disturbing lack of integrity and values in both political parties when it comes to immigration, they will continue to be vilified and attacked by the GOP and “consistently kicked to the side of the road” by Dems!
I wish I knew the answer! I don’t! But, I do know that human rights and social justice disasters will continue to unfold unless and until social justice advocates figure out how to get some “political clout” behind their intellectual power and store of (largely ignored) great ideas!
Rev. Craig Mousin Ombudsperson Refugee and Forced Migration Studies, Grace School of Applied Diplomacy DePaul University PHOTO: DePaul Website
Craig writes:
Dear Paul,
Good morning.
We just posted our latest podcast with templates and instructions on how to file comments. For those who find the comments too complicated, we urge them to send the White House and their Senators and Representative an email opposing the rules. Please also share this podcast with your friends and networks.
As Craig says, the Biden Administration, along with GOP nativist politicos, and pandering righty Federal Judges, ignore the fundamental right guaranteed by the Refugee Act of 1980: Every person at the border or in the U.S., regardless of status, has a right to apply for asylum!Obviously, that includes a right to a fundamentally fair adjudication by a well-qualified, impartial adjudicator.
It’s not “rocket science!” Yet, Biden, Harris, Mayorkas, Garland, & Co. can’t wrap their heads around this fundamental truth! Disgracefully, after two years of screwing around and wasting time, resources, and squandering goodwill on futile and often illegal “deterrence,” they aren’t much closer to re-establishing a fair, functional asylum system at the borders than they were on Jan 20, 2021! Where’s the basic competence and “good government” that Biden/Harris promised when running for office?
The smug nativist-pandering politicos in the Biden Administration think that asylum applicants, the laws that protect them, and the advocates, like YOU, who defend them are “political chopped liver” — unimportant and completely expendable! It’s up to YOU to prove them wrong! Nobody else is going to do it!
YOU work hard for vulnerable and deserving asylum seekers! Biden Administration policy makers are afraid to venture to the REAL border and face the human carnage they promote. Yet, this is how they see YOU and your clients — as something less than “persons” — “chopped liver!” Until YOU prove them wrong, the dismissive and demeaning treatment will continue! Creative Commons License
While YOU are out there working for due process and social justice, they are huddled in their comfy offices secretly plotting the demise of YOUR clients and making YOUR job more difficult and frustrating. They are “wasting YOUR precious time!”
And, all the while, they have their hands out begging for YOUR financial support and counting on YOU — “chopped liver” — to ring doorbells, make phone calls, organize events, man the polls, and get out the vote! How totally arrogant and insulting! If YOU are tired of being treated as “chopped liver” and having your knowledge, expertise, and fundamental values ignored, YOU must do something about it!
Mr. W-G-G’s “winning team” from GW Law Immigration Clinic. PHOTO: GW Clinic with client’s permission. It’s never too early in your legal career to do meaningful work and save lives!
Professors Alberto Benitez & Paulina Vera of the GW Immigration Law Clinic report from the Annandale (VA) Immigration Court:
“I’ll only have a couple general statutory bar questions to ask and will defer to Judge Jimenez in granting relief”
Please join me in congratulating Immigration Clinic client W-G-G, from Venezuela. He was granted asylum this morning by Immigration Judge (IJ) Christina Jiménez. W-G-G was represented by student-attorneys Anam Abid and Matt Banaitis. W-G-G and his family were targeted by the Maduro government for their opposition views culminating in being removed from their home at gunpoint on New Year’s Day 2020. Only W-G-G was allowed to leave Venezuela but thanks to the asylum grant he can begin the process of bringing his wife and 11 and 8 year-young kids to the USA.
The ICE Assistant Chief Counsel complimented Anam and Matt on the thoroughness of their pretrial filing and direct examination, limited his cross-examination to the statutory bar questions, and deferred to the IJ’s discretion on the grant of asylum. The hearing lasted 50 minutes.
In addition to Anam and Matt, student-attorneys Jasmine Martínez and Mark Rook also worked on this case.
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Who says great representation and meticulous preparation don’t matter? (Disgracefully, during the Trump Administration EOIR tried to make exactly that bogus claim by releasing a fictional “fact sheet” full of lies.)
Thanks for showing us how the system could and should work in many more cases, Paulina and Alberto! Congrats to you and your amazing team of student attorneys! Imagine having saved lives like this before you even graduate from law school or take the bar!
It’s tragic that the Biden Administration just isn’t interested in institutionalizing due process, fundamental fairness, and best practices. This case represents real teamwork, expertise, and mutual respect from ALL participants for the common good.
I particularly liked the ICE Assistant Chief Counsel’s complimentary comments. “Positive reinforcement” and recognition of excellence is SO important in the development of practice skills! And, I know that GW Law has contributed outstanding talents to both the Government and the private/NGO sectors of immigration practice!
Everybody, including ICE and EOIR, benefits from great representation in Immigration Court! It also virtually guarantees appearance at all hearings without counterproductive expensive detention. Why isn’t the Biden Administration focused on funding, expanding, and institutionalizing the things that actually work and enhance due process?
I also recognize Judge Christina Jimenez for setting a positive tone and having the confidence to inspire those appearing before her to do their best and to let them “model” the proper resolution. “Retail level judging” is about teaching, inspiring, setting good examples, and reinforcing success. That appears to be exactly what Judge Jimenez did here!
This is also an example of why I urge practitioners to compete for Immigration Judge positions! Although the system often lacks consistent expertise and leadership “from above,” there is plenty of room for achieving justice, case by case, at the Immigration Court level. I constantly get reports of significant victories for the NDPA and their clients.
Last week, my Round Table colleague Judge Ilyce Shugall (she is also on the VIISTA permanent faculty) and I had a chance to work with VIISTA Villanova faculty and instructors from the National Institute of Trial Advocacy on mock Immigration Court hearings for VIISTA students. What an impressive group of smart, personable, engaged, and serious advocates! And, talk about prepared! This group was SO prepared for their sessions!
There is tremendous “un-mined” potential for great pro bono representation out here! If only the Biden Administration would work WITH the advocacy/NGO community on representation and best practices, rather than trying to shove their broken and user unfriendly “good enough for government work” model down the public’s throats!
Even if the Biden Administration prefers “deterrence gimmicks” to systemic due process and best practices, “change from below” can spread throughout the nation.
Unfortunately, this particular Venezuelan situation is hardly unusual. I’m sure I granted similar cases during my tenure.
One can imagine, however, that some Venezuelan asylum applicants in the same situation are denied in the “EOIR crapshoot that passes for justice” while others are sent away to peril without fair hearings by the Biden Administration’s anti-asylum policies at the border.
I hope that in the “next generation,” leaders like you, Paulina, and your NDPA colleagues can change this broken and unfair system! Because the Biden Administration sure isn’t getting the job done when it comes to due process, human rights, and equal justice. That will mean getting some political power to make Dems take notice or pay a price.
Thanks to you, Paulina, Alberto, and your talented student attorneys for all you do for American justice! If only the Biden Administration had the same commitment and dedication to due process, creative problem solving, excellence, and fundamental fairness, this system could be fixed!
CAUTION: You are about to enter AG Merrick Garland’s “Twilight Zone” — where judges operating in a parallel universe make surreal decisions without regard to facts, law, or common sense applicable in this world! The Twilight Zone Billy Mumy 1961.jpg :PHOTO: Public Realm
Dan Kowalski reports for LexisNexis Immigration Community:
CA9 on Standard of Review: Umana-Escobar v. Garland
“Josue Umana-Escobar petitions for review of the Board of Immigration Appeals (“BIA”) order upholding the immigration judge’s (“IJ”) denial of asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). He also challenges the BIA’s determinations that defects in the Notice to Appear (“NTA”) did not require termination of his proceedings and that the BIA lacked authority to administratively close his case. We have jurisdiction under 8 U.S.C. § 1252. We dismiss the defective NTA claim for lack of jurisdiction and deny the petition as to the CAT claim. We grant the petition and remand as to the administrative closure issue, given the government’s recommendation that we should do so based on an intervening decision by the Attorney General. We also grant the petition and remand as to the asylum and withholding of removal claims because the BIA applied the wrong standard in reviewing the IJ’s determination that the evidence failed to establish the requisite nexus between a protected ground and past or future harm.”
The initial hearing was in 2013, merits hearing in 2017, Circuit remand in 2023. After a decade, a fairly routine asylum case is still unresolved!
This case probably shouldn’t even be in Immigration Court, as it was affected by “Gonzo” Sessions’s wrong-headed, backlog-building, interference with administrative closing, later reversed by Garland, but not until substantial, systemic damage to EOIR had already been caused.
When it’s “any reason to deny, any old boilerplate gets by!”🤬 Bogus “no nexus” findings — often ignoring the “at least one central reason” standard and making mincemeat out of the “mixed motive doctrine” — are a particular EOIR favorite! That’s because they can be rotely used to deny asylum even where the testimony is credible,the harm clearly rises to the level of persecution, is likely to occur, and relocation is unreasonable!
In other words, it allows EOIR to function as part of the “deterrence regime” by sending refugees back to harm or death. What better way of saying “we don’t want you” which has become the mantra of Biden’s “Miller Lite” policy officials!
GOP, Dems, neither are competent to run a court system. That’s why we need an independent Article I court!⚖️
From “LEADING BY EXAMPLE, HONORING COMMITMENTS,” by Human Rights First:
The recommendations below follow multiple prior sets of blueprints and recommendations previously issued for the Biden administration and outline critical steps for the administration including:
Ramp up, speed up and strengthen regional refugee resettlement, parole and other safe migration pathways in the Americas, never coupling such initiatives with the denial of access to asylum, while respecting and centering human rights — including the right to seek asylum and protection from violence — in regional discussions, and redoubling U.S. efforts to support the development of refugee hosting capacity in other countries in the Americas to also ensure access to asylum.
Uphold and comply with refugee law at U.S. borders without discrimination, including to restart and maximize (rather than restrict or “meter”) asylum at ports of entry, take all steps consistent with court rulings to end the Title 42 policy, and ensure people seeking asylum have prompt access to ports of entry — access which should not be limited to CBP One, but assured to people approaching ports of entry to seek asylum. Restoring asylum at ports of entry after years of blockage is essential not only to uphold refugee law, but also to end the counterproductive consequences of Trump policies that, by restricting and blocking access to asylum at ports of entry, have long pushed populations that previously sought asylum at ports of entry to instead attempt to cross the border.
Implement effective and humane refugee reception structures, coordination, funding mechanisms, and case support, including to enhance efforts to communicate, plan, coordinate with and resource the network of faith-based groups, shelters, legal, refugee aid and non-profit humanitarian organizations along the border and across the country that are essential to an effective reception and case support system, create a White House Task Force to improve coordination including with humanitarian organizations and destination communities, develop the new Shelter and Services grant program to remedy some of the limitations of FEMA ESFP-H funding, launch and support public-private asylum reception and orientation initiatives by such humanitarian organizations, ensure prompt provision of work authorization for asylum seekers — a top need identified by both asylum seekers themselves as well as local communities hosting refugees, and ultimately ensure a focused humanitarian and refugee reception agency rather than just “emergency” responses.
Upgrade asylum adjudication processes so that they are prompt, accurate, and fair, improve the new asylum rule process so it leads to efficiency rather than rushed and counterproductive inaccurate adjudications, work with Congress to fund sufficient asylum adjudication capacities to address asylum backlogs, as well as ensuring timely adjudication of new cases, and support and champion funding for legal representation.
Rescind — and do not resurrect — other Trump policies, including the asylum entry and transit bans (or versions of them) and other fatally flawed policies of the last administration that punish or block refugees from protection — and abandon the harmful plan to propose another transit ban.
Stand firm against the anti-immigrant rhetoric and efforts of politicians aligned with the former Trump administration to force continuation and/or codification into law of the former Trump administration’s cruel, racist, and counterproductive policies or other policies that deny refugees access to asylum —and clearly and firmly reject any such Congressional proposals.
It’s not rocket science! It’s achievable! It’s been available since before the 2020 election! It incorporates and realizes values that Biden/Harris ran on in 2020! If Biden had brought in real leaders and experts at the beginning, many of the problems could be on their way to solution right now and the “White Nationalist myths” would be refuted!
Leading by positive example on human rights and the rule of law is a powerful, effective,posture for America that has been largely ignored by the Trump & Biden Administrations. The GOP lacks positive values. But, Dems “run” on them in elections and then “run away” from them once in office!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up” — Help get this poor little guy back on his feet! He’s been down far too long!Don’t just complain about the awful mess @ EOIR! Get on the bench and do something about it! Public Domain
Contact: Communications and Legislative Affairs Division Phone: 703-305-0289 PAO.EOIR@usdoj.gov
www.justice.gov/eoir @DOJ_EOIR March 13, 2023
EOIR to Host Recruitment Outreach Sessions Join Us to Learn How to Become an Immigration Judge
SUMMARY: The Executive Office for Immigration Review (EOIR) is looking for qualified candidates from all backgrounds to join our immigration judge corps. Interested parties are invited to attend an information session where senior EOIR staff will discuss the immigration judge career path, duties, qualifications, and benefits of being an immigration judge. You will learn how to apply for immigration judge positions when they become available and have the opportunity to ask questions about the immigration judge position and application process. Please join us for one of the sessions below.
March 16, 2023
March 23, 2023
March 30, 2023
Noon – 1 p.m. Pacific Time Noon – 1 p.m. Central Time Noon – 1 p.m. Eastern Time
“I was working at the Justice Department on immigration issues largely related to enforcement, figuring out how to make our laws more just, more fair, more humane. . . . But the Board of Immigration Appeals also has jurisdiction over dealing with regulations. It’s the highest administrative agency dealing with immigration issues—not only one-off cases, but we set national precedent for things like asylum, dealing with children who are detained in the United States. It’s a very powerful agency. Not a lot of people realize how much influence it has. And so that’s significant because when Trump was elected, we saw such a marked change in the direction of the work, where the focus of the policies seemed to be cruelty for the point of cruelty. And I couldn’t continue to work there and uphold my oath to protect and defend the Constitution, let alone maintain my own moral compass. And so I took a stand and I left.”
Rep. Hillary Scholten (D-MI) Visit Creator: Ike Hayman Credit: Ike Hayman SOURCE: WikipediaMary Harris Host & Managing Editor What Next PHOTO: Slate.com
Not just a thing of the past. Unsplash [In fact, it’s Arkansas GOP Gov. Sarah Huckabee Sanders’s “vision of the future” now that she has eliminated those pesky “burdensome and obsolete” child labor laws!]BY MARY HARRISMARCH 09, 20233:40 PMCongresswoman Hillary Scholten remembers exactly where she was when she realized her new job on Capitol Hill was about to get a lot more complicated. “My heart just sank,” she said. “I couldn’t believe what I was reading.”Scholten was reading the New York Times, a big investigation into immigrant child labor. The very first anecdote in this 5,000-word opus is about a 15-year-old girl bagging cereal on the graveyard shift in the Hearthside Food Solutions plant in Grand Rapids, Michigan. Scholten is a third-generation Michigander. She’s from Grand Rapids. And it wasn’t just that companies in Scholten’s hometown were employing kids. It was that many of these kids seemed to be living without their parents. And a lot of them were falling asleep in school because they had full-time jobs. The machines they were working on? They had been known to slice off workers’ fingers.Congresswoman Hillary Scholten remembers exactly where she was when she realized her new job on Capitol Hill was about to get a lot more complicated. “My heart just sank,” she said. “I couldn’t believe what I was reading.”Scholten was reading the New York Times, a big investigation into immigrant child labor. The very first anecdote in this 5,000-word opus is about a 15-year-old girl bagging cereal on the graveyard shift in the Hearthside Food Solutions plant in Grand Rapids, Michigan. Scholten is a third-generation Michigander. She’s from Grand Rapids. And it wasn’t just that companies in Scholten’s hometown were employing kids. It was that many of these kids seemed to be living without their parents. And a lot of them were falling asleep in school because they had full-time jobs. The machines they were working on? They had been known to slice off workers’ fingers.
“Especially as an attorney who has worked on these issues her entire career, it felt like a personal attack,” Scholten said.
On Wednesday’s episode of the show, I spoke with the former immigration attorney–turned–congresswoman about the broader powers she has now that’s she in D.C. and whether she will be able to use them. Our conversation has been condensed and edited for clarity.
Mary Harris: Rep. Hillary Scholten says the nuances of immigration have always been important to her. Before she was an attorney, she worked as a migrant advocate. But once she got her law degree, she took that experience one step forward, joining the DOJ.
Hillary Scholten: I was working at the Justice Department on immigration issues largely related to enforcement, figuring out how to make our laws more just, more fair, more humane.
You were working on immigration appeals, right?
Yeah, exactly. But the Board of Immigration Appeals also has jurisdiction over dealing with regulations. It’s the highest administrative agency dealing with immigration issues—not only one-off cases, but we set national precedent for things like asylum, dealing with children who are detained in the United States. It’s a very powerful agency. Not a lot of people realize how much influence it has. And so that’s significant because when Trump was elected, we saw such a marked change in the direction of the work, where the focus of the policies seemed to be cruelty for the point of cruelty. And I couldn’t continue to work there and uphold my oath to protect and defend the Constitution, let alone maintain my own moral compass. And so I took a stand and I left.
Scholten soon got a new job at the Michigan Immigrant Rights Center. But almost as soon as she arrived, her work—and the work of many other immigration attorneys across the country—was thrown into chaos. Things got especially bad as it became clear the Department of Homeland Security was separating migrant children from their parents at the border, leaving lawyers and advocates to figure out what to do next. That’s when Hillary Scholten started seriously considering a run for Congress.
At the height of the family separation crisis, our agency was responsible for helping reunite and represent so many children. Imagine a legal services waiting room that turned into a virtual day care center overnight with kids who didn’t know where their parents were. And there were a lot of reasons I raised my hand to run, but no doubt I can pinpoint the moment when I was like, “Oh, hell no, I got to do more.” It’s the height of the summer. My dear husband came to visit me at work. It was going to be a late night, and he brought me an iced coffee. And we were chatting, and we walked through our waiting room. He’s normally a pretty stoic guy, and he fell silent. And I turned and looked at him, and his eyes had just filled with tears. And I realized that we had walked past a set of three siblings, all dressed in their Sunday best, between the ages of 5 and 7. That’s how old our children were at the time. And he just said, “Hill, you see this stuff on the news. It is an entirely different level to look these children in the eye.”
One of our youngest clients was separated from his parents at 4 months old. You’re not just walking away from a parent. You’re being taken from their arms.
Five years later, this investigation by the New York Times has Scholten thinking about different ways to help migrant children. Just this past weekend, she returned to her district to connect with constituents and think about how she can intervene, now that her community’s child labor problem is no longer a secret. She can already see the way the news has rippled outward.
One of the saddest things about the fallout of all of this is that there has continued to be some real discontent within the immigrant communities here, where shining a light on the exploitation of children has also shined a light on the fact that there have been so many other individuals working without authorization in these factories. And as companies have started to look into who’s actually working here, their labor pool has vanished. Hearthside, after the Times ran the investigation, said they were going to be doing inspections on the manufacturing floor, and 75 percent of their workforce didn’t show up the next day.
. . . .
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Read/listen to the full interview at the above links.
As Hillary says, the BIA is “a really powerful agency.” That’s exactly why the Trump Administration “packed” it with unqualified restrictionist “Appellate Judges” known for their anti-asylum bias and astronomical asylum denial rates!
That’s also why Biden, Harris, and Garland’s near-complete failure to “clean up the BIA” and the rest of the failed EOIR “judiciary” and bring in the “best legal minds in the business” to establish a model progressive expert judiciary is such a scandal and indicator of the repeated failure of Dem Administrations to take advantage of the transformational opportunities given them.
By contrast, whether we like it or not, the far right extremist GOP knows exactly how important the Immigration Courts are and accordingly acts decisively to weaponize, pack, “dumb down,” and co-opt them in their nativist battle to dehumanize and demonize migrants. This was a key “first step” in the GOP’s attack on all of the “others” in America! Transgender youth, African Americans, women, Asian Americans, Hispanic Americans, and others being targeted by the GOP’s nationwide assault on their rights, humanity, and the truth about our history might look to the Biden Administration’s fecklessness in dealing with immigrants’ rights and human rights to understand how they are being “left out on a limb” by a Dem Administration — more interested in its re-election than in serving those who helped put them in office.
Hillary had the guts and moral courage to take a stand. Yet, Biden, Harris, Garland, Mayorkas and others in this Administration, not so much! Frankly, that’s appalling! 🤮
“It is an entirely different level to look these children in the eye.” This encapsulates the problems of immigration, human rights, child abuse, and racial injustice! Unlike Hillary, very few legislators, Federal Judges, Biden politicos, or GOP nativist Governors and AGs have ever had to get their “hands dirty” by “looking . . . in the eyes” of children and others whom they abuse, dehumanize, and bully on a regular basis!
Attribution: ROLLING BACK CHILD LABOR PROTECTIONS by Randall Enos, Easton, CT Republished under license.
Contrast Hillary’s “hands on” experience and search for bipartisan practical solutions with the predictable stupidity and abuse by GOP Arkansas Governor Sarah Huckabee Sanders, a living incarnation of the “Peter Principle,” who recently and gleefully signed into law an insane provision reducing child labor protections in Arkansas while incredibly claiming that protecting children was “burdensome and obsolete!”
The law eliminates requirements for the state to verify the age of children younger than 16 before they can take a job.
Sanders believes the provision was “burdensome and obsolete,” spokeswoman Alexa Henning said in an emailed statement.
Ark. Gov. Huckabee Sanders’s MAGA “child welfare plan” has its Anglo-Saxon roots firmly planted in the famous British workhouses that many GOP politicos admire! Public Realm
As part of their “willful blindness” to the deterioration of American democracy, the so-called “mainstream media” often likes to falsely portray GOP Governors as presenting a “saner” alternative to America’s leading liar/insurrectionist “The Donald.” But, as Sanders, DeSantis, Abbott, Youngkin, and others remind us on a regular basis, there are some REALLY BAD GOP Governors out there who are every bit as much a threat to America’s future as Trump!
