Interior Enforcement – Page 19 – immigrationcourtside.com

🗽👍HUMANITY WINS: FOOD, SHELTER, REPRESENTATION, TEAMWORK, OVERCOME DeSANTIS’S & ABBOTT’S CRUEL SHENANIGANS! — DeSantis created “a picture of a carefully orchestrated, taxpayer-funded operation with little apparent concern for the interests of the migrants caught in the middle.”

Beth Reinhard
Investigative Reporter
Washington Post
PHOTO: WashPost Website

Maria Sacchetti
Immigration Reporter, Washington Post

https://www.washingtonpost.com/politics/2022/09/25/desantis-perla-migrant-flight-marthas-vineyard/

This WashPost article by Beth Reinhard, Maria Sacchetti, and Molly Hennessy-Fiske sets forth in detail how the courage and perserverance of asylum seekers, the humanity and initiative of the local community in Martha’s Vineyard, timely assistance by the Massachusetts Government, and heroic efforts by pro bono lawyers, came together to “redirect” the cruelty behind nativist GOP Govs’ idiotic political stunt.

. . . .

Nearly two weeks later, though, Jose is one of dozens of migrants who now question Perla’s efforts to entice them onto a flight that unexpectedly ended on the wealthy island of Martha’s Vineyard — a political operation engineered by Florida Gov. Ron DeSantis (R) to gin up outrage over the United States’ border crisis.

Much remains unknown about the effort. While DeSantis has embraced his role in staging the flight, arguing that it protected Florida from “negative ramifications” of a border crossing surge, his office has been less clear about the purpose of nearly $1.6 million paid to a contractor, according to state records, and the role of state officials in developing the plan.

But Post interviews with several migrants directly recruited by Perla, as well as court documents and state records, paint a picture of a carefully orchestrated, taxpayer-funded operation with little apparent concern for the interests of the migrants caught in the middle. Florida officials began researching Texas’s migrant situation weeks before the flights, and a contractor with ties to the DeSantis administration later handled the efforts. Some migrants, meanwhile, say they were misled into signing documents after being lured into the trip with food and hotel stays.

. . . .

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

Read the complete article at the link.

Imagine what could be accomplished if Texas and Florida officials actually worked to HELP resettle individuals in an orderly and reasonable manner that recognized their humanity and respected and facilitated their legal rights to apply for asylum and other protections in the US? What if the Biden Administration actually brought in a team of qualified experts to lead and operate our existing refugee and asylum systems fairly and effectively instead of using stale approaches and personnel who simply lack the skills, vision, and courage to get the job done?

Fortunately, the asylum seekers, NGOs, and state and local officials, and ordinary citizens in welcoming American communities have stepped up to get the job done notwithstanding the glaring failures and counterproductive efforts of the previously-mentioned groups!

The preposterous attempt by DeSantis to link “sanctuary” with asylum seekers! Loosely speaking, “sanctuary jurisdictions” are those that have declined to voluntarily cooperate with certain ICE enforcement activities, primarily directed at so-called “civil” immigration enforcement.

But, the Venezuelan asylum seekers “orbited” to Martha’s Vineyard had all been examined by DHS and released to pursue their legal requests for asylum in the US! Indeed, most probably turned themselves in to DHS Enforcement after being forced to cross illegally to present claims that the U.S. Government (with the connivence of GOP state Attorneys General and biased right wing Federal Judges) has refused to accept at legal ports of entry as they are supposed to do under our laws.

These individuals are NOT “wanted” by ICE enforcement. There is no connection whatsoever between any “sanctuary jurisdiction’s” decision not to cooperate with ICE enforcement in rounding up certain individuals for possible deportation and legal asylum seekers from Venezuela (or any other country) pursuing their claims, beyond the fact that sanctuary jurisdictions value human dignity and are more welcoming to migrants of all types and statuses when called upon to provide assistance to them.

Venezuelan asylum seekers are part of the larger forced exodus of 6-7 million Venezuelans escaping the repression of the Maduro regime. 95% of these forced migrants have found refuge in countries OTHER than the U.S. Colombia is the largest destination country with at least 1.7 million Venezuelans, many times more than the U.S.

The vast majority of Venezuelans have found refugee in countries far poorer and less able to resettle them than the U.S. The idea that “sanctuary policies” of Martha’s Vineyard or any other U.S. jurisdiction is driving Venezuelan asylum seekers is beyond absurd. Indeed, it now appears that the Venezuelan asylum seekers “orbited” to Martha’s vineyard as part of the DeSantis scheme neither knew where it was nor had any idea they were being sent there until they were well on their way!

Indeed, the decision to send these individuals to an island with neither a DHS Office nor an Immigration Court (as opposed to, say, resettling them in Boston with advance notice), and with few “own site” pro bono lawyers, actually undermined their ability to comply with legal requirements and squandered resources that could and should have been put into getting timely and fair adjudications of their legal asylum applications. But, even in the face of GOP-led efforts to create maximum chaos, these legal asylum seekers and their supporters are committed to making our legal system work — against all odds!

Finally, congrats to Molly Hennessy-Fiske, long time LA Times immigration reporter who has now joined the team at WashPost!

🇺🇸 Due Process Forever!

PWS

09-26-22

🤯 OUTRAGE BOILS OVER AT MERRICK GARLAND’S “MILLERESQUE” WAR ON DUE PROCESS AT EOIR & HIS GROTESQUE MISMANAGEMENT OF IMMIGRATION COURTS! — Garland Might Be A Greater Threat To Our Democracy Than DeSantis and Abbott!

The latest report on Garland’s accelerating disaster @ EOIR from Jason Dzubow, “The Asylumist:”

https://www.asylumist.com/2022/09/21/due-process-disaster-in-immigration-court/

Due Process Disaster in Immigration Court

It is not easy to convey the magnitude of the ongoing disaster at EOIR, the Executive Office for Immigration Review, the office that oversees our nation’s Immigration Courts. Simply stated, the agency is rescheduling and advancing hundreds–maybe thousands–of cases without notifying attorneys, checking whether we are available to attend the hearings or checking whether we have the capacity to complete the cases.

On its face, this appears to be a mere scheduling problem. But in effect, it is a vicious and unprecedented assault on immigrants, their attorneys, and due process of law.

“Advancing hearings with no notice and no time to prepare? Why didn’t I think of that?!”

For me at least, the problem started small. A few cases were rescheduled and advanced without anyone at the Immigration Court bothering to inquire about my availability: Your case that was scheduled for two years in the future has been advanced and is now set for two months in the future. I was angry and upset, but I did not want to let my clients down. So I set other work obligations aside. I set family time aside. I put off doctors appointments. And I completed the cases, which were approved. I hoped that these cases were anomalies and that EOIR would stop this unfair and abusive practice. But that was not to be.

Instead, EOIR has dramatically expanded its effort to reschedule cases, often without providing sufficient notice–or any notice–to get the work done for our clients. As best as we can tell, the problem is occurring in California, Colorado, Maryland, and Virginia. I myself have had about a dozen cases rescheduled and advanced (so far). These cases had been scheduled for 2023 or 2024, and suddenly, they are now set for the fall of 2022. Other attorneys have had 20, 30 or more cases advanced, including some that were double booked. One lawyer reported having seven cases scheduled for the same week and 47 cases set for one month. Another lawyer purportedly told a judge that if she had one more case scheduled within the next six months, she would commit suicide.

Here, I want to break down what is happening, so noncitizens in Immigration Court can at least have some idea about EOIR’s disruptive practices.

First, when I say that EOIR is not providing notice of the hearings, that is not entirely accurate. They are not sending us a notice or contacting us in advance. Instead, they are posting the new hearing dates on our portal. What does this mean? Each attorney has access to a portal page with a calendar. We can scroll through the calendar one month at a time. Days with hearings are highlighted, and we can click on those days to see what is scheduled. When I review my calendar, I often find new hearings that were not previously on the schedule. The only way to know whether a new hearing has been scheduled is to scroll through our portals month-by-month and compare what’s there with our existing calendar–a burdensome process that leaves plenty of room to overlook a date. Needless to say, every time I sign on to the portal, I feel a nauseous sense of dread about what I might find.

Once we discover the new date, we need to review the file, contact the client, and determine whether we can complete the case. This all takes time. If we cannot complete the case, or we do not have an attorney available on the scheduled date, we need to ask for a continuance. Of course, clients who have been waiting years for a decision usually want to keep the earlier hearing date. They do not understand why we cannot complete the work or why we are not available that day. Their perspective is perfectly reasonable, but they only have one case, where lawyers have many and we are daily being ambushed by EOIR with additional work. All this can result in conflicts between clients (who want their cases heard) and lawyers (who need time to get the work done). It also makes it difficult to serve our other clients, who must be pushed aside to accommodate the new work randomly being dumped on us.

Even if the client agrees to request a continuance, that does not solve the problem. Motions to continue can be denied. Even when they are granted, the judges tend to reset the date for only a few weeks in the future, which is often not enough time to properly complete the work. Other times, judges simply do not rule on the motion, so we are left to prepare the case, not knowing whether it will go forward or not.

Also, while we sometimes discover a new date that is a few months in the future (and so in theory, we might have time to do the work), other times, the new date is only a few weeks in the future. Since the evidence, witness list, and legal brief are due at least 15 days before the hearing, and since even a “simple” asylum case takes 20 or 30 hours to prepare, this is not nearly enough time. Worse, some cases are randomly advanced and placed on the docket after the evidence is due, and so by the time we have “notice” of the case, our evidence is already late.

Adding insult to injury, another common problem is that cases are still being cancelled at the last minute. And so we drop everything to prepare a case, only to have it postponed once all the work is done. Since this is all utterly unpredictable, it is impossible to prioritize our work or advise our clients.

Again, if this were only a few cases, attorneys could set aside other work and get the job done. But lawyers who do immigration law tend to have many cases, and we are seeing dozens and dozens of cases advanced with no notice. This is such a blatant and obvious abuse of due process that it is impossible to believe it is accidental. I might have expected this policy from the Trump Administration, which was hell-bent on restricting immigration by any means necessary. But as it turns out, President Biden’s EOIR is far worse than President Trump’s. Indeed, the current level of callousness would make even Stephen Miller blush.

The solution to these problems is so basic that it should not need to be said, but here it is anyway: EOIR should stop advancing and rescheduling cases without notice and without consideration for whether we have time to complete the work. Unless something changes, we can expect many noncitizens to be unfairly denied protection, immigration attorneys will leave the profession (or worse), and EOIR will become illegitimate. Let us hope that sanity and decency will soon return to the Immigration Courts.

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

Ever wonder why Dems struggle to govern and often lose elections they should win? This is a pretty good example of how the Biden Administration, through cowardice, ignorance, arrogance, and failure to prioritize racial justice and immigrant justice are “shooting themselves in the foot, over and over!”

They are going into midterms where every vote counts. They need “all hands on board” in the human rights community to help bail them out of the gross failures of the White House, Garland, and Mayorkas to reestablish a fair, efficient, and properly robust system for legally admitting refugees and processing asylum claims at the borders and the interior. This, in turn, has empowered disingenuous nativists like DeSantis and Abbott to “play games with human lives.”

But, the Biden Administration “strategy” is to do everything possible to offend and drive a wedge between them and some of their most loyal and important groups of supporters — the immigration, human rights, and racial justice communities. (Make no mistake: The ongoing disaster at Garland’s EOIR disproportionally targets individuals of color.)

Garland seems to be impervious to his self-inflicted disaster at EOIR. I think that advocates are going to have to sue to bring his “Stephen Miller Lite” travesty of justice at EOIR to a grinding halt. Those are resources that could and should be used to help asylum seekers “orbited” around the country by DeSantis and Abbott.

I, for one, have been saying for a long time that Garland’s unfathomably horrible performance at EOIR is a threat to our entire justice system and to the future of our nation. Sadly, every day, Garland proves me right!

The real shame: It was all so preventable with just a modicum of competence and backbone from our failing AG!

🇺🇸 Due Process Forever! Merrick Garland’s deadly Clown Courts 🤡, Never!

PWS

09-21-22

THE GIBSON REPORT — 09-19-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC — LITIGATION: Avalanche Of Circuit Reversals Hits Garland’s “Star Chambers!”

Weekly Briefing

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

CONTENTS (jump to section)

◦NEWS

◦LITIGATION & AGENCY UPDATES

◦RESOURCES

◦EVENTS

NEWS

Mexico Officials Abused 47% of Migrants Awaiting US Asylum

Bloomberg: Nearly half of US-asylum seekers returned to Mexico under the “remain-in-Mexico” program to await a US immigration court hearing said they’d been abused by local officials, according to a Human Rights First report released Thursday. See also Biden urges Mexico to take migrants under COVID expulsion order he promised to end.

FY 2022 Seeing Rapid Increase in Immigration Court Completions

TRAC: Immigration Court case completions have been rapidly increasing. During the first eleven months of FY 2022. Immigration Judges have closed over 375,000 cases — a historical record. If the pace continues, closures should top more than 400,000 by the end of the fiscal year. This is nearly three times as many case closures as last year. It is also roughly 50 percent higher than the previous high in FY 2019 during the Trump administration.

Migrant Crisis Puts N.Y. ‘Right to Shelter’ Law to the Test

NYT: Mr. McGuire cited the city’s failure on Monday to offer beds to 60 migrants who arrived at the men’s intake facility on East 30th Street in Manhattan, where homeless men are assessed when they first enter the shelter system — the first major such lapse in over a decade.

Thousands of Migrants Are Arriving in El Paso. They Have Nowhere to Sleep.

Vice: Since the beginning of September, over 1,100 migrants have been arriving every day in El Paso, more than 90 percent of them from Venezuela, according to the city’s CBP authorities. The influx has completely overwhelmed the city’s immigration shelters, and since most have no U.S. sponsor—support to get a visa to stay lawfully in the U.S.—immigration authorities have to release nearly 500 migrants a day into the streets of El Paso. And about 1,000 stay there to sleep every night.

Migrants Flown to Martha’s Vineyard Say They Were Misled

NYT: A fleet of buses arrived at St. Andrew’s Episcopal Church in Edgartown on Friday morning to ferry about 50 migrants — many of them dazed and a bit confused, but happy to be in the United States at last — to Joint Base Cape Cod, a temporary shelter. See also Texas sends another busload of migrants to Kamala Harris’s home; POLITICO Playbook: Breaking down DeSantis’ migrant stunt; DeSantis Flying Migrants to Martha’s Vineyard Is Part of a 60-Year-Old Segregationist Playbook.

The majority of Americans think migrants are ‘invading’ the U.S. Meanwhile, suffering at the border continues.

America: A majority of Americans—52 percent—now believe the nation is experiencing an “invasion” on the southern border, and 49 percent say that migrants are responsible for an uptick in U.S. drug overdoses because they are transporting fentanyl and other drugs.

Immigrants Keep Getting Lied To By Human Smugglers On Platforms Like Facebook, WhatsApp, and TikTok

BuzzFeed: The Tech Transparency Project found that human smugglers advertise their services on Facebook Marketplace and in local buy-sell groups, with third-party ads for bona fide businesses embedded within the posts that allow Facebook to make money every time a potential immigrant looks for smuggling services on the platform. Some of the listings even featured an ad for a scholarship run by Meta.

‘Never sleeps, never even blinks’: the hi-tech Anduril towers spreading along the US border

Guardian: Funded by Trump supporter Peter Thiel, the autonomous surveillance towers can detect a human from 2.8km away.

LITIGATION & AGENCY UPDATES

EOIR Final Rule on Limited Representation of Pro Se Individuals

AILA: EOIR final rule on limited representation of pro se individuals, which permits practitioners to provide document assistance to pro se individuals by entering a limited appearance through new Forms EOIR-60 or EOIR-61. The rule is effective 11/14/22.

CA2 on Evidence: Santiaguez v. Garland

LexisNexis: In denying his petition for CAT relief, the agency acknowledged that Santiaguez is an indigenous gay man and LGBT activist and that there is widespread violence against members of the LGBT community throughout Mexico. Nonetheless, the agency concluded that Santiaguez failed to satisfy his burden for CAT relief because he did not establish a likelihood that Mexican authorities would either torture him directly or acquiesce to his torture by private actors. In reaching this conclusion, the agency erred in several respects.

2nd Circ. Says Mexican Father Was Wrongly Denied Witnesses

Law360: The Second Circuit on Thursday revived a Mexico native’s bid to cancel his deportation on grounds that his children would experience extreme hardship without him, saying he should have been allowed live witness testimony to support his case.

3rd Circ. Finds Judge Stymied Asylum Seeker’s Right To Atty

Law360: The Third Circuit on Thursday in a precedential opinion resurrected a Dominican man’s request for asylum, finding that the lower courts interfered with his right to an attorney by denying a request to reschedule a hearing so that the lawyer he retained just 24 hours before would be better prepared.

CA4 On Corroboration: Garcia Rogel V. Garland

LexisNexis: One of those circumstances requiring review by a three member panel is when the IJ’s decision “is not in conformity with the law or with applicable precedents.” 8 C.F.R. § 1003.1(e)(6)(iii). Petitioner’s appeal of the IJ’s decision therefore should have been adjudicated by a three member panel of the BIA. … In conclusion, we grant the petition for review so that the IJ may reconsider the police report in light of In re Arreguin de Rodriguez, 21 I. & N. Dec. 38 (B.I.A. 1995).

6th Circ. Says BIA Ruling Has Its Hands Tied In Asylum Case

Law360: A split Sixth Circuit appellate panel has denied the asylum bid of a Salvadoran couple fleeing the gang MS-13, saying the U.S. Board of Immigration Appeals did not err when it found the couple had not shown the Salvadoran authorities were incapable of protecting them from the gang.

Split 9th Circ. Revives Indian Man’s Asylum Bid

Law360: The Board of Immigration Appeals did not go through with an analysis that would have shown an Indian man was persecuted for his political affiliation, a split Ninth Circuit panel ruled Wednesday in reviving the man’s asylum bid.

9th Circuit Revives Mexican Man’s Bid To Avoid Deportation

Law360: The Ninth Circuit on Friday held that a Mexican man who was tortured and harassed in his home country should get another shot at avoiding deportation, ruling that the Board of Immigration Appeals erred in how it went about overturning an immigration judge’s decision in the man’s favor.

CA9 on Standard of Review: Chavez-Escamilla v. Garland

LexisNexis: The BIA failed to correctly apply the clearly erroneous standard. While the BIA indicated disagreement with the IJ’s findings, it did not explain why the IJ’s decision was illogical, implausible, or without support. … Clear error review requires the BIA to “explain how these alleged errors showed lack of logic, plausibility, or support in the record on the part of the IJ.”

11th Circ. Says Private Dispute Doesn’t Support Asylum Bid

Law360: The Eleventh Circuit on Tuesday denied a petition from a Honduran man seeking asylum over claims that narcotics traffickers targeted his family, saying the dispute with the traffickers stemmed from a private “vendetta,” making him ineligible for asylum to avoid persecution.

Notice of Potential Class Membership, Al Otro Lado v. Mayorkas (PDF, 212.97 KB)

USCIS: This notice is intended to provide information for individuals who (1) may be an AOL PI Class Member; (2) had the “third-country transit rule” applied to their immigration case; (3) were ordered removed from the U.S. under an “expedited removal order”; and (4) currently reside in the United States.

Notice Of Appeal From A Decision Of An Immigration Judge – Comments Requested

EOIR: As part of EOIR’s “Access EOIR” initiative, the agency is seeking to revise its Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge, to include a section for unrepresented respondents to consent to have their case be considered for inclusion in the BIA Pro Bono Project.

USCIS 30-Day Notice and Request for Comments on New Version of e-Request Tool

AILA: USCIS 30-day notice and request for comments on a new version of USCIS’s e-Request Tool. Comments are due 10/17/22. (87 FR 56968, 9/16/22)

RESOURCES

CLINIC: Practice Advisory: Assisting Afghan Evacuees

CLINIC: FAQ: Advising DACA Clients in 2022

DHS OIG: U.S. Border Patrol Faces Challenges Administering Post-Apprehension Outcomes Consistently Across Sectors

GAO: U.S. Citizenship and Immigration Services: Additional Actions Needed to Manage Fraud Risks

IAN: Remote Legal Support: A Post-Pandemic Guide to Nonprofit and Pro Bono Innovation

ILRC: Confidentiality Protections for Survivors of Domestic Violence, Human Trafficking and Other Crimes

ILRC: Deferred Action for Childhood Arrivals (DACA) Final Rule Summary

MPI: Rethinking the Last 200 Years of U.S. Immigration Policy

NLG: Whom to Sue and Whom to Serve In Immigration-Related District Court Litigation

EVENTS

9/20/22 19th Annual Immigration Law and Policy Conference

9/20/22 Nonprofit and For-Profit Entity Intersection 2022: Achieving Charitable Goals Through Innovative and Nontraditional Mechanisms

9/21/22 Breaking Down the Record in a Ninth Circuit Petition for Review

9/21/22-9/22/22 Refresher and Practice Tips: Legal Remedies for Immigrant Survivors

9/22/22 Inadequate Mental Health Care and Improper Use of Solitary Confinement in ICE Detention

9/22/22 Maximizing Second Chances: Filing Appeals, Motions, and Practicing before the BIA

9/22/22 USCIS: Deferred Action for Childhood Arrivals Final Rule National Stakeholder Engagement

9/22/22 Unpacking Immigration Cases Before the Supreme Court

9/23/22 Public Charge for Immigration Practitioners

9/23/22 Politics and Purpose Movement Lawyering Workshop

9/23/22 Naturalization of VAWA, SIJS, U, and T Visa Recipient Survivors: TTA from USCIS and NIWAP

9/27/22-9/29/22 EOIR to Hold Regional Stakeholder Meetings Regarding Internet-Based Hearings

9/28/22 AILA: Microsoft Word Tricks That Will Change Your Life

9/29/22 USCIS Public Charge National Stakeholder Engagement

9/29/22 Consular Processing Roundup for Families and Survivors

10/1/22-10/8/22 Spanish for Lawyers in Allende, Mexico

10/4/22 New Regulation Policies and Court Rulings’ Impact on State Courts Issuing Special Immigrant Juvenile Status (SIJS) Orders

10/4/22 & 10/11/22 CLINIC: Webinar Series: U Visa Certification Advocacy: Creating Policies and Laws to Protect Immigrant Victims of Crime

10/6/22 2022 Fall Immigration Skills Conference

10/6/22-10/19/22 CLINIC: Immigration Practice Skills Course

10/7/22-10/28/22 Understanding and Preparing Waivers

10/12/22 Prosecutorial Discretion Updates

10/12/22-10/13/22 NLG: Immigration Defense Strategies

10/14/22 What Judges, Attorneys, and Prosecutors Need to Know About How VAWA Confidentiality Impacts Discovery in Cases Involving Immigrant Survivors

10/18/22 VAWA Updates – USCIS Policy Changes and Practice Tips

10/19/22 CLINIC: Outreach Strategies and Social Media to Connect With and Serve Immigrants

10/19/22 U Visa: I-929 Process & Issues

10/20/22 CGRS MCLE Webinar: Firm Resettlement Issues in Asylum Claims

10/20/22 Understanding Unlawful Presence and I-601/I-601A

10/27/22 2022 Convening On Advancing Universal Representation

10/29/22 4th Annual 5k for Immigrant Justice (includes remote option)

11/2/22 TPS Updates

11/3/22 Drugs and Naturalization

11/8/22 SIJS-based Adjustment of Status with Delinquency or Crimes

11/16/22 Introduction to Conditional Permanent Residence and Filing the I-751

11/17/22 NLG: Updates on Terrorism-Related Inadmissibility Grounds (TRIG) with guest speaker, Jay Gairson

11/29/22 Building an Asylum Claim

12/6/22 Emerging Strategies for Prolonged Detention

12/7/22 Parole in Immigration

12/13/22 The Effects of Absences on Naturalization

12/14/22 Hot Topics in Asylum Law

12/15/22 NLG: Obtaining Criminal Records with guest speaker, Gabriela Kahrl

01/19/22 NLG: Top Ethical Issues Facing Legal Representatives in Removal Hearings with guest speaker, Retired Immigration Judge Dana Marks

To sign up for additional NIJC newsletters, visit: https://immigrantjustice.org/subscribe.

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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

Avalanche — Merrick Garland ignores the existential threat from the avalanche of dangerous and defective decisions by his Trump holdover BIA. But, the rest of us see exactly what’s happening.
PHOTO: Creative Commons

I count no fewer than seven Circuit rejections of wrong-headed BIA decisions in Elizabeth’s report this week. The legal incompetence of EOIR under Garland is astounding!

Disturbingly, several reversals involve outrageous denials of routine continuances. Garland runs a system where cases languish for years, sometimes decades, because of poor judicial decisions and inept docket management by EOIR. Yet, some IJ’s and the BIA are “programmed” to deny well-justified continuances in clear violation of Due Process. What a disgrace!

Garland has failed miserably to bring enough well-qualified judges and competent administrators into his dysfunctional Immigration Courts. Yet, he wanders around America giving clueless speeches about the wonders of the American justice system and the greatness of immigrants!

Meanwhile, a nationwide rebellion among practitioners is brewing against Garland’s latest round of mindless, due-process-denying “Aimless Docket Reshuffling.” It’s going to take more than a few cosmetic “regional stakeholder meetings” to get things back on track at EOIR. Everyone except Garland and his lieutenants knows that!

And, the continuing meltdown at EOIR helps “fuel” disgraceful stunts by nativist racists like DeSantis and Abbott.

🇺🇸 DUE PROCESS FOREVER!

PWS

09-18-22

🤯 ASTOUNDING HEIGHTS OF HYPOCRISY! — Garland Praises Rule Of Law, Equal Justice, & Immigrants While Running Biased, Unconstitutional, Dysfunctional, Backlogged Immigration “Courts” That Trample All Three! — There’s Not Much That’s “Fair” Or “Equal” In Garland’s “Star Chambers!”

Star Chamber Justice — A.G. Merrick Garlands gratitude to America for accepting his family doesn’t extend to those suffering injustice in his wholly owned “Immigration Courts” — still churning our “Trump-era” restrictionist nonsense and “managed” in a way that promotes maximum dysfunction and inefficiency!

https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-administers-oath-allegiance-and-delivers

Attorney General Merrick B. Garland Administers the Oath of Allegiance and Delivers Congratulatory Remarks at Ellis Island Ceremony in Celebration of Constitution Week and Citizenship Day

New York, NY ~ Saturday, September 17, 2022

Remarks as Delivered

It is my great honor to welcome you as the newest citizens of the United States of America. Congratulations! Please be seated.

Just now, each of you took an oath of allegiance to the United States. In so doing, you took your place alongside generations who came before you, many through this very building, seeking protection, freedom, and opportunity.

This country – your country – wholeheartedly welcomes you.

I know that you have made sacrifices in order to be here today. You should be proud of all you have accomplished. I am proud of you.

You have made the decision to become Americans not only at an important time in our country’s history, but on an important day.

It was 235 years ago on this day, September 17, 1787, that 39 delegates to the Constitutional Convention representing 12 states signed their names to the Constitution of the United States.

Like you, those who signed the Constitution were relatively new Americans. In fact, America had only existed for 11 years at that point.

Like you, those Americans had great hopes for their own future – and for the future of their new country.

In the preamble of the Constitution, those Americans enumerated those hopes: to form a more perfect union; establish justice; ensure domestic tranquility; provide for the common defense; promote the general welfare …

And importantly – in their words – “to secure the Blessings of Liberty to ourselves and our Posterity.”

Like them, each of you has now made a commitment not only to this nation and your fellow Americans, but to the generations of Americans who will come after you.

In that commitment, you have given your posterity – and the posterity of all of us – a precious gift.

I know how valuable that gift is because it is the same one my grandparents gave my family and me.

I come from a family of immigrants who fled religious persecution early in the 20th Century and sought refuge here in the United States. Some of my family entered right here, at Ellis Island.

My grandmother was one of five children born in what is now Belarus. Three made it to the United States, including my grandmother who came through the Port of Baltimore.

Two did not make it. Those two were killed in the Holocaust.

If not for America, there is little doubt that the same would have happened to my grandmother.

But this country took her in. And under the protection of our laws, she was able to live without fear of persecution.

I am also married to the daughter of an immigrant who came through the Port of New York in 1938.

Shortly after Hitler’s army entered Austria that year, my wife’s mother escaped to the United States. Under the protection of our laws, she too, was able to live without fear of persecution.

That protection is what distinguishes America from so many other countries. The protection of law – the Rule of Law – is the foundation of our system of government.

The Rule of Law means that the same laws apply to all of us, regardless of whether we are this country’s newest citizens or whether our [families] have been here for generations.

The Rule of Law means that the law treats each of us alike: there is not one rule for friends, another for foes; one rule for the powerful, another for the powerless; a rule for the rich, another for the poor; or different rules, depending upon one’s race or ethnicity or country of origin.

The Rule of Law means that we are all protected in the exercise of our civil rights; in our freedom to worship and think as we please; and in the peaceful expression of our opinions, our beliefs, and our ideas.

Of course, we still have work to do to make a more perfect union. Although the Rule of Law has always been our guiding light, we have not always been faithful to it.

The Rule of Law is not assured. It is fragile. It demands constant effort and vigilance.

The responsibility to ensure the Rule of Law is and has been the duty of every generation in our country’s history. It is now your duty as well. And it is one that is especially urgent today at a time of intense polarization in America.

The United States is no stranger to what our Founders called the risk of faction. Alexander Hamilton and James Madison wrote about it in the Federalist Papers. George Washington warned against it in his Farewell Address.

Overcoming the current polarization in our public life is, and will continue to be, a difficult task.

But we cannot overcome it by ignoring it. We must address the fractures in our society with honesty, with humility, and with respect for the Rule of Law.

This demands that we tolerate peaceful disagreement with one another on issues of politics and policy. It demands that we listen to each other, even when we disagree. And it demands that we reject violence and threats of violence that endanger each other and endanger our democracy.

We must not allow the fractures between us to fracture our democracy.

We are all in this together. We are all Americans.

On this historic day and in this historic place, let us make a promise that each of us will protect each other and our democracy.

That we will honor and defend our Constitution.

That we will recognize and respect the dignity of our fellow Americans.

That we will uphold the Rule of Law and seek to make real the promise of equal justice under law.

That we will do what is right, even if that means doing what is difficult.

And that we will do these things not only for ourselves, but for the generations of Americans who will come after us.

I have often thought about what members of my family felt as they came through buildings like this. And I have often thought about what their decisions meant for my own life.

My family story is what motivated me to choose a career in public service. I wanted to repay my country for taking my family in when they had nowhere else to go. I wanted to repay the debt my family owes this country for our very lives.

My family members who immigrated here have now long since passed. I regret that I cannot express to them how grateful I am for the gift they gave me in choosing to come to this country.

So let me thank each of you.

Thank you for choosing America as your home. Thank you for the courage, dedication and work that has brought you here.

Thank you for all you will do to help our country live up to its highest ideals.

Thank you on behalf of a nation that is fortunate to call you as its citizens.

And thank you upon on behalf of the generations of Americans who will come after you. Thank you.

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

The man lives in a “reality-free bubble” on the 5th Floor of DOJ. He must also “tune out” the many Circuit Court decisions lambasting the BIA’s sloppy decisions, anti-due-process “culture,” and wrong anti-immigrant legal rulings issued in his name. He seems incapable of understanding how the unfathomable mess he presides over at EOIR affects the health and welfare of those practicing before it!

I’m curious as to how denying access to counsel, denying reasonable continuances, failing to follow precedent, using improper “one judge” review, intentionally misconstruing “notice” statutes, and applying legally incorrect standards, all subjects of recent Circuit “blowbacks,” fit into Garland’s view of equal justice for immigrants in America. How does “Aimless Docket Reshuffling on steroids” fit in with his concept of due process and professional court administration?

Know a man not by his words, but by his deeds. In Garland’s case, it’s an ugly picture.

🇺🇸 Due Process Forever!

PWS

09-29-22

THE GIBSON REPORT — 09-12-22 — Compiled By Elizabeth Gibson, Managing Attorney. NIJC — How Bogus Are CBP “Apprehension Stats?”

Weekly Briefing

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

CONTENTS (jump to section)

◦NEWS

◦LITIGATION & AGENCY UPDATES

◦RESOURCES

◦EVENTS

PRACTICE UPDATES

USCIS Releases Revised Editions of Forms I-589 and I-765

USCIS: USCIS released the revised editions of Form I-589 and Form I-765 in compliance with the Asylumworks decision. Effective Nov. 7, 2022, USCIS will only accept the 07/26/22 editions of the Form I-589 and Form I-765. Until then, you can submit either the new editions, or the previous editions of Form I-589 (dated 08/25/20) and Form I-765 (dated 05/31/22 and 08/25/20).

NEWS

Texas Says 10,000 Migrants Have Been Bused to Democratic Cities

Bloomberg: Abbott said Friday that the state has bused more than 7,900 people to Washington in the past five months, sent 2,200 to New York and 300 to Chicago. See also Inside Migrants’ Journeys on Greg Abbott’s Free Buses to Washington; Attack on asylum seeker in New York sparks outrage over conditions. (If you’re curious how conservative media is playing this: Chicago mayor accused of ‘hypocrisy’ for sending migrants to GOP suburb.)

Most Border Patrol Apprehensions are for Repeat Crossers, But Agency Data Doesn’t Yet Provide the Full Picture

TRAC: Using detailed government records, TRAC found that the percent of Border Patrol (BP) apprehensions that comprise repeat border crossers did not significantly increase when, under Title 42 , illegal border crossers were not penalized or sanctioned before they were expelled. This finding, based on data obtained from the Border Patrol by the Transactional Records Access Clearinghouse at Syracuse University, is contrary to agency contentions and arguments by policy analysts that immediate expulsions without applying meaningful sanctions such as criminal prosecution to repeat crossers encourages illegal reentry attempts.

Republicans and Democrats have different top priorities for U.S. immigration policy

Pew: Republicans place particular importance on border security and deportations of immigrants who are in the country illegally, while Democrats place greater importance on paths to legal status for those who entered the country illegally – especially those who entered as children, according to a new Pew Research Center survey.

DHS unwinds Trump-era ‘public charge’ rule for immigrants

Politico: The new law unravels the Trump-era public-charge rule, under which immigrants could be denied permanent resident status if they had received or were expected to receive food assistance, Medicaid, housing assistance, or other public benefits. The Biden administration in stopped enforcing that regulation in March 2021.

ICE violated federal law by holding migrant teens in adult custody

Sentinel: Following a ruling that transferring migrant kids to adult detention centers just as they turned age 18 was illegal, a federal judge approved a settlement in a 2018 lawsuit this week.

‘Scary and chilling’: AI surveillance takes U.S. prisons by storm

Reuters: Beginning in 2019, Suffolk County was an early pilot site for the Verus AI-scanning system sold by California-based LEO Technologies, which uses Amazon speech-to-text technology to transcribe phone calls flagged by key word searches… Suffolk County is among dozens of county jails and state prisons in seven U.S. states including major metro areas such as Houston, Texas, and Birmingham, Alabama, that LEO says have so far implemented the Verus system to monitor inmates’ calls.

Deported veterans who returned to US face uncertain futures

RollCall: A Biden administration initiative brought them back to America under a temporary immigration status that expires after a year.

USCIS Has Used Nearly All Available Employment-Based Immigrant Visas for FY2022

JDSupra: This is a significant accomplishment for the agency because it approved approximately twice the annual allocation of employment-based immigrant visas in fiscal year 2022 (FY22).

LITIGATION & AGENCY UPDATES

3rd Circ. Tosses Salvadoran Man’s Deportation Review Bid

Law360: A Salvadoran man convicted of marijuana possession cannot overcome removal requirements of the Nicaraguan Adjustment and Central American Relief Act through a waiver found in a 1952 immigration law, the Third Circuit ruled Friday, denying his petition for review of a deportation order.

5th Circ. Says Guatemalan’s Stepkids Can’t Stop Deportation

Law360: The Fifth Circuit on Friday rejected a Guatemalan man’s bid to cancel his deportation on the basis that it would cause his stepchildren extreme hardship, saying he didn’t provide evidence strong enough to prove they were U.S. citizens.

9th Circ. Says High Court Ruling Limits Detainee Bond

Law360: The Ninth Circuit ruled Thursday that immigrants challenging deportation orders from mandatory detention aren’t entitled to bond hearings while the federal courts review the orders, citing a recent high court ruling at odds with a prior circuit decision allowing bond.

Final Settlement Approved In Lawsuit On Unlawful Detention Of Unaccompanied Youth

NIJC: A federal court approved a settlement agreement on September 7 in a lawsuit challenging the unlawful detention of unaccompanied children who turn 18 in U.S. government custody and are transferred to Immigration and Customs Enforcement (ICE) detention facilities.

Immigration Judges Say the FLRA Made Up Rules to Decertify Union

GovExec: In its appeal in federal circuit court, the National Association of Immigration Judges accused the Federal Labor Relations Authority’s then-Republican majority of already deciding to decertify the union before considering arguments in the case.

Final Rule: Public Charge Ground of Inadmissibility

DHS: The rule restores the historical understanding of a ‘public charge’ that had been in place for decades, until the prior Administration began to consider supplemental public health benefits such as Medicaid and nutritional assistance as part of the public charge inadmissibility determination.

DHS Notice of Extension of Venezuela for TPS

AILA: DHS notice extending the designation of Venezuela for TPS for 18 months, from 9/10/22 through 3/10/24. The 60-day re-registration period for existing TPS beneficiaries runs from 9/8/22 through 11/7/22. (87 FR 55024, 9/8/22)

EOIR Memo: Credible Fear and Asylum Procedures

EOIR: This memorandum summarizes certain key provisions of the interim final rule and provides guidance on the new streamlined removal proceedings.

EOIR to Relocate Arlington Immigration Court, EOIR to Open Sterling Immigration Court

EOIR: The Arlington Immigration Court will end normal operations at noon on October 6, 2022, to prepare for the court’s relocation to Annandale.

RESOURCES

AILA: Practice Alert: Biden Administration’s Asylum Processing Rule Is Now in Effect in the Courts and Asylum Offices of Seven Destination Cities

AILA: Practice Alert: Filing Form G-1593 to Appear Remotely at Asylum or NACARA Interviews

AILA: Asylum and Credible Fear Interim Final Rule

AILA: Find Resources for Assisting Afghan Clients

CLINIC: Federal Register Notice for 18-Month Extension of TPS Designation for Venezuela Published

CRS: An Overview of the Statutory Bars to Asylum: Limitations on Applying for Asylum (Part One)

CRS: An Overview of the Statutory Bars to Asylum: Limitations on Applying for Asylum (Part Two)

DHS OIG: DHS Encountered Obstacles to Screen, Vet, and Inspect All Evacuees during the Recent Afghanistan Crisis (REDACTED)

DHS OIG: USCIS Should Improve Controls to Restrict Unauthorized Access to Its Systems and Information

ILRC: The ICE Parental Interests Directive: How Child Welfare Agencies Can Advocate with ICE to Ensure Fair Treatment of Detained or Deported Parents

JFL: Advisory on new prison phone surveillance tech

NIJC: A Brief Guide to Representing Noncitizen Criminal Defendants in Illinois (with Quick Reference Chart for Determining Immigration Consequences of Common Illinois Offenses).

NLG: Biden’s Asylum Processing Rule: Three Months in, What Practitioners Need to Know

NLG: Explainer: Biden Administration on Policing Two Years In

USCIS: USCIS Stopped Applying June 2020 Rules Pursuant to Court Order in Asylumworks v. Mayorkas (Updated: 09/07/2022)

EVENTS

9/13/22 PLI: Representing Children in Immigration Matters 2022: Effective Advocacy and Best Practices

9/14/22 Representing U Visa Clients with Complex Issue

9/14/22 Partial to Full Accreditation Initiative 2022

9/15/22 Monthly NIPNLG Removal Defense Webinar: Credibility and Impeachment

9/15/22 Advanced Mandamus Trends

9/20/22 19th Annual Immigration Law and Policy Conference

9/20/22 Nonprofit and For-Profit Entity Intersection 2022: Achieving Charitable Goals Through Innovative and Nontraditional Mechanisms

9/21/22 Breaking Down the Record in a Ninth Circuit Petition for Review

9/21/22-9/22/22 Refresher and Practice Tips: Legal Remedies for Immigrant Survivors

9/22/22 Maximizing Second Chances: Filing Appeals, Motions, and Practicing before the BIA

9/22/22 USCIS: Deferred Action for Childhood Arrivals Final Rule National Stakeholder Engagement

9/23/22 Politics and Purpose Movement Lawyering Workshop

9/28/22 AILA: Microsoft Word Tricks That Will Change Your Life

9/29/22 Consular Processing Roundup for Families and Survivors

10/1/22-10/8/22 Spanish for Lawyers in Allende, Mexico

10/4/22 & 10/11/22 CLINIC: Webinar Series: U Visa Certification Advocacy: Creating Policies and Laws to Protect Immigrant Victims of Crime

10/6/22 2022 Fall Immigration Skills Conference

10/6/22-10/19/22 CLINIC: Immigration Practice Skills Course

10/7/22-10/28/22 Understanding and Preparing Waivers

10/12/22 Prosecutorial Discretion Updates

10/12/22-10/13/22 NLG: Immigration Defense Strategies

10/18/22 VAWA Updates – USCIS Policy Changes and Practice Tips

10/19/22 CLINIC: Outreach Strategies and Social Media to Connect With and Serve Immigrants

10/19/22 U Visa: I-929 Process & Issues

10/20/22 Understanding Unlawful Presence and I-601/I-601A

10/27/22 2022 Convening On Advancing Universal Representation

10/29/22 4th Annual 5k for Immigrant Justice (includes remote option)

11/2/22 TPS Updates

11/3/22 Drugs and Naturalization

11/8/22 SIJS-based Adjustment of Status with Delinquency or Crimes

11/16/22 Introduction to Conditional Permanent Residence and Filing the I-751

11/17/22 NLG: Updates on Terrorism-Related Inadmissibility Grounds (TRIG) with guest speaker, Jay Gairson

11/29/22 Building an Asylum Claim

12/6/22 Emerging Strategies for Prolonged Detention

12/7/22 Parole in Immigration

12/13/22 The Effects of Absences on Naturalization

12/14/22 Hot Topics in Asylum Law

12/15/22 NLG: Obtaining Criminal Records with guest speaker, Gabriela Kahrl

01/19/22 NLG: Top Ethical Issues Facing Legal Representatives in Removal Hearings with guest speaker, Retired Immigration Judge Dana Marks

To sign up for additional NIJC newsletters, visit: https://immigrantjustice.org/subscribe.

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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

Sure looks like CBP is “apprehending” the same individuals multiple times. Also, many of these so-called “apprehensions” want to be “caught” because it’s the only possible way of getting the chance to apply for asylum that our law guarantees, but fails to provide in practice. That’s because ports of entry are still “closed” under bogus Title 42 restrictions. So, the overhyped “border apprehensions” appear, to a significant extent, to be “smoke and mirrors.”

It’s really not surprising that “sanctions” apparently don’t deter unlawful entries. That’s because 1) the vast majority of unlawful entrants aren’t “criminals” in any normal sense of the word except in the mind of White Nationalist xenophobes, 2) many are just trying to get the Government to follow the law and let them apply for asylum, or other legal protections, and 3) even those without credible claims for protection are, for the most part, at worst, just coming here to work at jobs that U.S. workers don’t want.

Jeff Session’s racist “zero tolerance program” of useless border prosecutions violated the Constitution by intentionally separating families, cost the Government millions, ruined lives, squandered prosecutorial resources that should have been spent on real crime, and accomplished absolutely nothing positive. Yet, Sessions, his neo-Nazi henchman Stephen Miller, and the government sycophants (including unethical DOJ lawyers) who carried out this travesty remain free and will never be held accountable.

Somehow, GOP nativists have gotten away with turning the self-created border “crisis” upside down. If we cut through their smokescreen, we see that the Government actually is the “law breaker” and many of the “forced irregular entrants” actually are trying to comply with the law! Not to mention that the USG has failed to establish viable refugee programs to process Western Hemisphere refugees before they come to our borders. Pretty kafkaesque!

Also, the effort by unqualified right-wing Federal “Judges” and neo-fascist GOP state AG’s to close the border to legal asylum seekers is a national disgrace that seems to be “below the radar screen.” Gotta hope that history “toasts” these corrupt, ignorant, and immoral public officials even if there is little interest in holding them accountable in “real time.”

But, somehow, even the so-called “mainstream media” hypes the wrong story!

🇺🇸Due Process Forever!

PWS

09-14-22

🏴‍☠️🤯👎🏽 CRUMBLING INSTITUTIONS: OF COURSE THE OUT OF TOUCH, POLITICIZED SUPREMES’ GOP MAJORITY IS SHEDDING LEGITIMACY AS THEY IMPLEMENT AN EXTREME FAR-RIGHT POLITICAL AGENDA WITHOUT LEGAL BASIS! — C.J. Roberts’s Incredibly Lame Claim Otherwise Proves It!

Every time a GOP politico or media sycophant preferences remarks with “I’m not a racist,” you know that some outrageous racist statement is about to follow. What they are doing is dishonestly attempting to preemptively “shift the blame and focus” to those who call out their vile, dishonest conduct!

Over the weekend, Chief Justice John Roberts, drifted down a similar discredited path of disingenuous “preemptive denial.” In a ludicrously tone deaf statement that echoed Tricky Dick’s “I’m not a crook” speech, Roberts lamely attempted to defend the legitimacy of his Court’s stripping of fundamental human rights from women. In doing so, he basically reinforced critics’ points about the Court’s illegitimate, extralegal, right-wing, political war on individual and human rights with a good bit of misogyny thrown in!

Richard Nixon — Nixon’s “I’m not a crook speech” convinced many that he was, indeed, a crook. Roberts’s “My Court isn’t illegitimate just because it advances a far-right political agenda speech” is heading in the same direction!
PHOTO: Twitter

Never mind that the Court basically aligned itself with authoritarian theocrats promoting “forced birth” and overt subjugation of a woman’s fundamental right to decide whether or not to reproduce. Indeed, advancing that minority political agenda was the fundamental reason why Roberts and his GOP crew are on the Court in the first place! To pretend otherwise is off the wall!

There are some strong moral, societal, economic, and medical arguments to be made about why women should or should not choose to have children. Under the First Amendment, both those who favor abortion and those who oppose it have always been free to argue their points.

But, the idea that these choices should be removed from those directly concerned and placed in the hands of political and religious authorities is preposterous. Lacking convincing arguments to persuade all women facing that choice to their side, the far right theocracy did a preemptive strike! And, their “wholly-owned Justices” went along!

Needless to say, Roberts’s insultingly disingenuous defense of the indefensible did not fare well with informed critics.

Former Sen. Claire McCaskill, now an MSNBC analyist, On Meet the Press:

On Sunday, McCaskill – an MSNBC political analyst – tore into Roberts for taking the country backward and recalled that the jurists who signed onto Alito’s originalist rationalization misled the public during their respective Senate confirmation hearings.

“He’s so so out of touch. I mean really, this interview shows why the numbers for the Supreme Court are so bad. For him to say something like that, he just doesn’t get it. You don’t take away a right that’s been around for 50 years and you don’t have a party go to extremes of trying to make sure rape victims have to have forced birth,” McCaskill said.

“You don’t do that and not have it splash back on the Supreme Court,” she continued. “And they all said they respected precedent when they were confirmed. I heard them. America heard them. Clearly, they didn’t, and you can feel me getting angry at John Roberts right now because he knows better when he says that stuff.”

Professor (and former prosecutor) Joyce White Vance, Professor Leah Litman, Professor Stephen I. Vladeck, Political Scientist Norman Ornstein:

https://www.alternet.org/2022/09/claire-mccaskill-john-roberts-roe/

“Roberts’s failure to understand why the court has lost credibility with so many Americans smacks of ‘Let them eat cake,’ ” Joyce White Vance, a former prosecutor and a distinguished professor of the practice of law at the University of Alabama law school, told me. “The Supreme Court has a proud history of defending our rights, not taking them away. The Roberts court will go down in history as the first one” to strip away people’s rights.

University of Michigan law professor Leah Litman said: “I would be embarrassed to say something that naive and divorced from reality if I had said it as a first-year law student. For the chief justice to say it is just an insult to the intellect of everyone who knows anything about the court, American democracy and politics.”

. . .

If Roberts and the conservative bloc were to engage in just a tiny amount of self-reflection, they would understand that their own actions have brought them to this point. Law professor Stephen I. Vladeck, of the University of Texas school of law, asked me rhetorically: “If the court’s legitimacy doesn’t come from public acceptance of the principled nature of its decision-making, where does it come from?”

While Roberts might not have written the most egregious opinions, he has joined in them, from the abortion ruling in Dobbs, to the prayer-in-schools ruling in Bremerton, to a Brnovich decision on voting rights, written by Alito, that “blatantly ignored the plain language of the law and rewrote it to fit his partisan and ideological views,” as political scientist Norman Ornstein told me. Moreover, Ornstein said, it is Roberts who has “ignored Clarence Thomas’s blatant conflicts of interest and continues to oppose applying the judicial code of ethics to the Supreme Court, even as its credibility plummets.”

He concluded: “John G. Roberts Jr. is far from the worst justice undermining the fundamental legitimacy of the court, but he is surely culpable.”

https://www.washingtonpost.com/opinions/2022/09/12/roberts-criticism-supreme-court-whining/

Jennifer Rubin, WashPost opinion writer:

The court has failed to regulate itself and instead has abused its power. None of the six right-wing justices acknowledge, nor do they signal they want to halt, the conduct that has lost the public’s confidence.

So it’s up to Congress and the president to shore up the court’s credibility. Allocating more seats to correct the damage done by Sen. Mitch McConnell’s court-packing, imposing term limits on all justices and enacting a mandatory code of ethics would be good places to start.

https://www.washingtonpost.com/opinions/2022/09/12/roberts-criticism-supreme-court-whining/

Eric Lutz in Vanity Fair:

But it’s not just the outcome, which decimated a right Americans had held for five decades and put a variety of other privacy rights in jeopardy. It’s the way that decision — and others on guns, climate change, and religion — recently came to pass.

https://www.vanityfair.com/news/2022/09/john-roberts-defends-supreme-court-against-legitimacy-questions

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

In this case, Roberts would have done better to confine himself to “calling balls and strikes.” Sadly, he and his GOP colleagues have gotten out from behind the plate and taken the field in their “Federalist Society” uniforms. He’s going to have to learn to live with objections and catcalls from those in the stands who see what’s really going on here and are understandably upset about the Court’s overreach, substandard legal performance, lack of accountability, absence of self-awareness, and, yes, lack of legitimacy.

Better judges for a better, fairer America — from the Immigration Courts to the Supremes!

By the way, we can’t change the Supremes overnight. But, Biden, Harris, & Garland COULD have reformed, repaired, and legitimized the Immigration Courts, including the BIA, that they control. That they have failed to do so is the biggest “unforced error” of the Biden Administration — one that will haunt Democrats and Americans for ages!

Every day Garland’s parody of a court system, still largely bearing the unmistakable stamp of White Nationalists Sessions, Barr and Miller, continues to run roughshod over individual rights, often in life or death cases, while degrading the judicial process. Misogyny and racism are also on full display, as a disproportionate brunt of their unprofessional, wrong-headed, result-oriented “any reason to deny” decision-making falls on refugee women of color (and often on their accompanying children).

There is a very direct connection between “DHS agents in robes” in our Immigration Courts and “right-wing politicos in robes” at the Supremes. Part of the idea is to “normalize” injustice directed at “the other” — just so long as YOUR life isn’t directly affected, who cares? It’s also known as “Dred Scottification.” It’s the “polar opposite” of Dr. Martin Luther King’s observation that “injustice anywhere is a threat to justice everywhere.” If Dems don’t “connect the dots,” they might not be able to save our democracy!

🇺🇸 Due Process Forever!

PWS

09-12-22.

⚖️THE GIBSON REPORT — 09-96-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC — CAIR Seeks Examples Of “IJs using [boilerplate] and engaging in little/no actual legal analysis in a particular case.” — NIJC Looking For “PD Stories” — Many Helpful Practice Advisories & Alerts!

Weekly Briefing

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

CONTENTS (jump to section)

◦NEWS

◦LITIGATION & AGENCY UPDATES

◦RESOURCES

◦EVENTS

NEWS

Biden Administration Has Admitted One Million Migrants to Await Hearings

NYT: Under a pandemic-driven public health rule, migrants have been turned away at the U.S. border 1.7 million times since Mr. Biden took office, a figure that includes some people who have attempted to cross multiple times. But the United States has allowed others to stay temporarily for a range of reasons, including because Mexico or their own countries will not take them back. Nearly 300,000 of those who have been allowed in — including many heads of families — have been outfitted with tracking devices so that Immigration and Customs Enforcement can keep tabs on their whereabouts while they await their day in court. See also ‘Tale of two borders’: Mexicans not seen at busy crossings.

‘Human crisis’: Chicago seeks help as Texas buses over migrants

AlJazeera: Chicago Mayor Lori Lightfoot recently told reporters that about 125 migrants have arrived in the city on board buses from Texas, including 50 people who arrived on Sunday alone, most of them families. See also Texas spends more than $12 million to bus migrants to Washington, DC, and New York; Chicago welcomes immigrants bused out of Texas with open arms.

No longer young, ‘dreamers’ uneasily watch a legal challenge

WaPo: The oldest recipients were in their early 30s when DACA began and are in their early 40s today. At the same time, fewer people turning 16 can meet a requirement to have been in the United States continuously since June 2007.

Dozens of migrant children reported missing in Houston, raising alarms

Reuters: The agency found that since late last year, 57 unaccompanied migrant kids had been reported missing in Houston, the HHS official, and two additional sources familiar with the situation, said. Included in the count were nine kids who ran away from HHS shelters in the Houston area, the official said.

Venezuela’s refugee crisis similar to Ukraine’s in scale, but not aid

WaPo: The exodus from Venezuela has grown to the point that its refugee numbers are now close to those displaced by the conflict in Ukraine — but the European crisis has drawn disproportionately more financial support, according to an advocacy group. See also Ecuador begins regularization process for thousands of Venezuelan migrants.

California may be 1st to ban solo confinement for immigrants

CA: California would be the first U.S. state to ban solitary confinement in private civil detention centers used for immigrants who are under threat of deportation, under a bill that advanced Tuesday.

Feds Say Biz Lined Pockets With Migrant Kids’ Shelter Funds

Law 360: Federal prosecutors accused a Texas contractor of misappropriating hundreds of thousands of dollars worth of funding from the U.S. Department of Health and Human Services that was intended to be used for housing unaccompanied migrant children.

Afghan Resettlement Efforts Will Now Prioritize US Family Ties

Law 360: The Biden administration will focus on bringing over Afghans who have U.S. families in the next stage of its effort to relocate those fearing for their lives under the Taliban’s rule, a State Department spokesperson said Thursday.

LITIGATION & AGENCY UPDATES

American Samoa Gov’t Argues Against Birthright Citizenship

Law 360: The American Samoa government told the U.S. Supreme Court Monday that imposing birthright citizenship on American Samoans would deprive them of the right to decide their status, going against American Samoa-born individuals who earlier appealed to the high court.

1st Circ. Calls Removal Statute ‘Hard-Hearted’ In Affirming BIA

Law 360: The First Circuit was bound Wednesday to stand by an immigration appeals board decision that ordered a Guatemalan man removed from the country despite the hardship it would cause his children, saying the call was in line with the “hard-hearted” and “stringent statutory requirement.”

1st Circ. Says Fuzzy Memory Of Assault Doesn’t Bar Asylum

Law 360: The Board of Immigration Appeals was wrong when it refused to consider a psychological report explaining why an El Salvadoran teen seeking asylum had trouble remembering the details of sexual assaults that occurred when she was a child, a split First Circuit has ruled.

CA3 On Credibility, CAT: Njoka V. Garland (unpub)

LexisNexis: [U]nder the law of this circuit, an adverse credibility finding is “not determinative” of a claim for CAT protection…The Board was thus obliged to also consider Njoka’s independent evidence in the context of his claim for CAT protection.

CA9 On INTERPOL Red Notice, CAT: Gonzalez-Castillo V. Garland

LexisNexis: This court has long interpreted “serious reasons to believe,” the standard set by the statute for the serious nonpolitical crime bar, as equivalent to probable cause. In this case, the INTERPOL Red Notice cannot, by itself, establish probable cause.

Another CA5 Pereira / Niz-Chavez Remand: Parada V. Garland – Now Published!

LexisNexis: [T]he BIA’s decision to deny Parada’s motion to reopen was based on a legally erroneous interpretation of the statutes governing Notices to Appear and the stop-time rule. The Supreme Court has since reinforced the holding of Pereira and held—again— that to trigger the stop-time rule, a Notice to Appear must come in the form of “a single document containing all the information an individual needs to know about his removal hearing.”

CA9: BIA Must Consider New Evidence For Immigration Credibility

Law 360: The Ninth Circuit revived a Sikh man’s second attempt at obtaining asylum in the United States, finding that the Board of Immigration Appeals should have considered new information he presented in his later bid about the dangers of living as a Sikh in India.

9th Circ. Rules Ariz. Drug Convictions Trigger Deportations

Law 360: A Ninth Circuit panel on Monday ruled that Arizona’s drug possession laws can support federal immigration removal orders despite banning a broader list of substances than the federal drug schedule because the Grand Canyon State requires juries to determine the specific drug type involved in each conviction.

Calif. Judge Imposes New Rules For Migrant Youth Placement

Law 360: The U.S. Department of Health and Human Services’ Office of Refugee Resettlement must notify young detained migrants and their counsel when it decides against releasing them to their parents or relatives and provide reasons for withholding release, a California federal judge has ordered.

ICE Inks $4.8M Deal With Migrant Teens In Detention Litigation

Law 360: U.S. Immigration and Custom Enforcement has agreed to pay $4.8 million to resolve a class action claiming the government routinely failed to consider safer options before transferring teens to adult detention facilities after they turned 18, according to a proposed settlement filed Thursday in D.C. federal court.

Judge Recommends Immigrant Class Cert. In NY Detainer Suit

Law 360: Immigrants suing New York’s Suffolk County and its sheriff’s office over their practice of holding people past their release date by request of U.S. Immigration and Customs Enforcement have won over a federal judge, who recommended their proposed class be certified.

Iranian Diversity Visa Applicants Say They Were Skipped Over

Law 360: Two California chapters of a national Muslim civil liberties group and 159 Iranian diversity visa applicants have sued the Biden administration in federal court, claiming they have been “skipped over” and “unreasonably delayed” in the processing of their applications “for no explicable reason.”

USCIS Extends and Expands Employment Authorization for Individuals Covered by DED for Liberia

USCIS: U.S. Citizenship and Immigration Services (USCIS) today published a Federal Register notice for the extension and expansion of eligibility for Deferred Enforced Departure (DED) for Liberians and explaining how eligible Liberians may apply for Employment Authorization Documents (EADs).

USCIS Resumes Cuban Family Reunification Parole Program Operations

USCIS: U.S. Citizenship and Immigration Services (USCIS) is resuming operations under the Cuban Family Reunification Parole (CFRP) program, beginning with pending CFRP program applications.

USCIS Updates Guidance Related to Religious Workers

USCIS: U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to reorganize and expand on existing guidance related to special immigrant and nonimmigrant religious workers.

EOIR to Open Sterling Immigration Court

EOIR: The Executive Office for Immigration Review (EOIR) today announced it will open a new immigration court in Sterling, Virginia, on Oct. 3, 2022. The Sterling Immigration Court will include 19 immigration judges. It will be the second immigration court to open in the National Capital Region this calendar year.

Call for Examples: IJ Use of Boilerplate

CAIR: Peter Alfredson from CAIR Coalition’s Immigration Impact Lab is seeking examples of problems related to how IJs are using boilerplate addenda/statements of law in oral decisions. Please contact him at peter@caircoalition.org with any specific issues you’ve experienced with the addenda, including, but not limited to: IJs referring to the addenda but never actually providing them; addenda misrepresenting the law in a prejudicial way; and IJs using the addenda and engaging in little/no actual legal analysis in a particular case.

Call for Examples: PD stories (US v Texas)

NIJC: If you have examples of prosecutorial discretion you are willing to share (anonymously to your client if you wish), please fill out this form: Amicus Stories. Also: if you are a nonprofit and would be interested in signing on as an amici, please fill out this form: Joining Amici. In particular, we are thinking of cases that fit into the following categories: Grants or Denials under the Mayorkas Memo of PD for the purpose of seeking some non-EOIR benefit, such as: Eligibility for U visa, Eligibility for adjustment of status, Eligibility for SIJS. Grants or Denials under the Mayorkas Memo of PD based on particular humanitarian or unique considerations: Military service (self or family), Undercover or confidential informant situation, Family separation. DACA / DREAMers, MPP, Old convictions / rehabilitation. Stories (even if they predate the Mayorkas Memo) involving: Circumstances where individuals who would have been subject to 236(c) were not placed in removal proceedings, and the person was able to pursue relief with USCIS because no proceedings were ever initiated. Circumstances where individuals who could have been subject to reinstatement of a prior removal order did not have that order reinstated and were able to do things like pursue a U or T visa before USCIS, without being detained or placed in removal proceedings.

RESOURCES

AILA: Practice Alert: Biden Administration’s Asylum Processing Rule Is Now in Effect in the Courts and Asylum Offices of Seven Destination Cities

AILA: Practice Alert: USCIS Publishes Final DACA Regulation; Fifth Circuit Ruling on Legality of DACA Remains Pending

AILA: Practice Alert: ICE Provides OPLA Field Office Contact Email Addresses

CLINIC: USCIS Announced Permanent Change to Signature Policy

CLINIC: BIA Clarifies the Nature of Time and Date Requirements in NTAs

CLINIC: Department of State (DOS) Updates

CRS: The Law of Immigration Detention: A Brief Introduction

CRS: Are Temporary Protected Status Recipients Eligible to Adjust Status?

DHS: Southwest Border Enforcement Report

DHS: Asylum Processing Rule Cohort Reports

ILRC: What is the DACA Rule and How Does it Impact Me?

ILRC Recent USCIS Policy Manual Additions Clarifying Guidance on the Unlawful Presence Bars

ILRC: CA Public Benefits for Noncitizens

NLG: Community FAQ: Status of Prosecutorial Discretion Under the Biden Administration

NLG: Template Prosecutorial Discretion Request: Joint Motion to Reopen based on Due Process Concerns

NLG: Template Prosecutorial Discretion Request: Joint Motion to Reopen an in Absentia Removal Order and Dismiss or, in the alternative, a Joint Motion to Reopen

NLG: Practice Advisory: Gathering Criminal Records for Immigration Matters

NLG: Explainer: Biden Administration on Policing Two Years In

USCIS: The CIS Ombudsman’s Webinar: Overview of USCIS Online Accounts for Attorneys and Representatives

USCIS: TRIG Guidance (updated 8/29/22)

EVENTS

9/7/22 EOIR to Hold National Stakeholder Meeting Regarding Internet-Based Hearings

9/7/22 Understanding FOIAs with DHS

9/7/22 Mediating Immigration Petitions for Review in the Seventh Circuit

9/8/22-9/29/22 Webinar Series: Dealing With Denials

9/8/22-9/9/22 ABA Bench & Bar Academy: Your Best Trial Practice

9/8/22 Post-Conviction Relief: “If I Could Turn Back Time!”

9/8/22 Trial Advocacy Skills – Working with Expert Witnesses in Asylum, Withholding of Removal, and Convention Against Torture Claims

9/8/22 USCIS Engagement: Cameroon Temporary Protected Status Designation

9/8/22 How Demographic Change Is Shaping the Future of Immigration

9/9/22 Understanding the Regulatory Practice

9/13/22 PLI: Representing Children in Immigration Matters 2022: Effective Advocacy and Best Practices

9/14/22 Representing U Visa Clients with Complex Issue

9/14/22 Partial to Full Accreditation Initiative 2022

9/15/22 Monthly NIPNLG Removal Defense Webinar: Credibility and Impeachment

9/15/22 Advanced Mandamus Trends

9/20/22 19th Annual Immigration Law and Policy Conference

9/20/22 Nonprofit and For-Profit Entity Intersection 2022: Achieving Charitable Goals Through Innovative and Nontraditional Mechanisms

9/21/22 Breaking Down the Record in a Ninth Circuit Petition for Review

9/21/22-9/22/22 Refresher and Practice Tips: Legal Remedies for Immigrant Survivors

9/22/22 Maximizing Second Chances: Filing Appeals, Motions, and Practicing before the BIA

9/23/22 Politics and Purpose Movement Lawyering Workshop

9/28/22 AILA: Microsoft Word Tricks That Will Change Your Life

9/29/22 Consular Processing Roundup for Families and Survivors

10/1/22-10/8/22 Spanish for Lawyers in Allende, Mexico

10/6/22 2022 Fall Immigration Skills Conference

10/6/22-10/19/22 CLINIC: Immigration Practice Skills Course

10/7/22-10/28/22 Understanding and Preparing Waivers

10/12/22 Prosecutorial Discretion Updates

10/12/22-10/13/22 NLG: Immigration Defense Strategies

10/18/22 VAWA Updates – USCIS Policy Changes and Practice Tips

10/19/22 U Visa: I-929 Process & Issues

10/20/22 Understanding Unlawful Presence and I-601/I-601A

10/27/22 2022 Convening On Advancing Universal Representation

10/29/22 4th Annual NIJC 5k for Immigrant Justice

11/2/22 TPS Updates

11/3/22 Drugs and Naturalization

11/8/22 SIJS-based Adjustment of Status with Delinquency or Crimes

11/16/22 Introduction to Conditional Permanent Residence and Filing the I-751

11/17/22 NLG: Updates on Terrorism-Related Inadmissibility Grounds (TRIG) with guest speaker, Jay Gairson

11/29/22 Building an Asylum Claim

12/6/22 Emerging Strategies for Prolonged Detention

12/7/22 Parole in Immigration

12/13/22 The Effects of Absences on Naturalization

12/14/22 Hot Topics in Asylum Law

12/15/22 NLG: Obtaining Criminal Records with guest speaker, Gabriela Kahrl

01/19/22 NLG: Top Ethical Issues Facing Legal Representatives in Removal Hearings with guest speaker, Retired Immigration Judge Dana Marks

To sign up for additional NIJC newsletters, visit: https://immigrantjustice.org/subscribe.

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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

Thanks, Elizabeth!

Lack of analysis, prejudged cases, overt anti-immigrant bias, and absence of “applied” immigration, human rights, and due process expertise is an endemic problem at EOIR. Using canned law (some of it flat out wrong or at least questionable) in “addenda” appears to be another “built to fail,” due process denying, haste make waste “gimmick.”

Lousy analysis and basic mistakes appear in Federal Court rebukes of EOIR highlighted here, on LexisNexis, on ImmigrationProf blog, and other resources on an almost daily basis. And, we by no means are able to catalogue all of the abject failures being cranked out by Garland’s EOIR — many of which would embarrass an L-1! Why not get 1) better judges, 2) a better BIA, and 3) better training?

Garland has been “nibbling around the edges,” at best. A few enlightened appointments of well-qualified “practical scholars” to newly created judgeships in a failed system of some 600 judges nationwide with a fatally flawed “Trump holdover” appellate body, the BIA, won’t cut it.

EOIR needs new, exceptionally well-qualified, dynamic, due process oriented expert leadership and a new BIA that will begin solving the problems rather than aggravating them and shuffling them on to the Circuits. Hopefully, the CAIR effort will lead to “dialing up the pressure” on Garland and his lieutenants to “get their collective heads out of the clouds and kick some tail at what (despite the efforts of Article III right wing hacks like Judge Aileen “Loose” Cannon to claim the title) remains “America’s worst court system” — where due process, fundamental fairness, legal scholarship, and best practices “go to die.” 🪦

I don’t dispute that America’s judicial system is failing from top to bottom. But, unlike the Article IIIIs, where there are long-term structural issues with constitutional roots that make “quick fixes” impossible, EOIR is “wholly owned and operated” by the Executive.

Systemic institutional reforms like replacement or reassignment of unqualified judicial and administrative personnel could, and should, have been a top priority for the Biden Administration. But, instead the tone deaf “it’s only immigration not a real priority” approach by Garland has allowed life-threatening legal malfeasance at EOIR to fester, spread, and undermine confidence in the ability of our democracy to survive.

News flash for Garland: EOIR is where the “rubber meets the road” for American justice. You continue to ignore and downplay the need for bold decisive corrective action at your own peril — and our nation’s!

🇺🇸Due Process Forever!

PWS

09-07-22

🇺🇸🗽IN COMPETITIVE MICH 3RD, FORMER BIA ATTORNEY HILLARY SCHOLTEN REACHES VOTERS WITH VALUES-BASED CAMPAIGN FOCUSING ON LISTENING, SOLVING PROBLEMS, ADDRESSING LOCAL ISSUES, & PROTECTING INDIVIDUAL LIBERTIES! — Lissandra Villa Huerta @ BoGlo Reports!

Lissandra Villa Huerta
National Political Reporter
Boston Globe
PHOTO: BoGlo Website

https://www.bostonglobe.com/2022/08/27/nation/democrats-michigan-hope-capitalize-swell-support-abortion-rights/

GRAND RAPIDS, Mich. — Hillary Scholten, a 40-year-old Democratic congressional hopeful, only had to knock on a handful of doors last Saturday in a residential neighborhood here before she encountered Maria D’Angelo, who was sitting on her front porch, about to have coffee with her neighbor, Sara VanderArk.

Both women in the historically conservative but now Democratic-leaning district are overwhelmingly focused on a single issue this November: women’s rights.

“I’ve had to voice publicly and to family members that I never intended to tell that I’ve had abortions,” D’Angelo, a Democrat, told the Globe about the fallout from the Supreme Court’s June decision to overturn Roe v. Wade. VanderArk, who identifies as an independent, said she was inspired by the court ruling to join abortion rights protests and that her vote would largely hinge on the issue in the fall.

They are exactly the type of galvanized voters that Democratic candidates up and down the ballot in Michigan and across the country are hoping will give them a boost in the November midterm elections. Midterm years are historically bad news for the president’s party even without high inflation and sagging presidential approval ratings, but Democrats now are nursing a sliver of hope: They’re narrowing the enthusiasm gap — the motivation level of voters — and popular opinion on the issue of abortion is on their side.

That’s especially true in Michigan, a battleground state where, like Kansas before it, there has been a surge in the number of women who’ve registered to vote since Roe v. Wade was overturned in June after almost 50 years as settled precedent, according to an analysis by TargetSmart, a Democratic data firm. A recent poll commissioned by AARP, the interest group for older Americans, showed the issue was among voters’ top concerns. And Michigan’s new third congressional district, where Scholten is running, is a rare congressional race where Democrats aren’t just having to focus on defending their turf, they feel bullish about their odds of flipping the seat.

“The level of engagement on this issue is just so high,” Scholten told the Globe in an interview at her campaign office last weekend. “It’s the only thing I hear about. Women stop me in the grocery store and grab my arms and are like, please do something about this.”

Scholten, an attorney and former Department of Justice official, said she saw a surge of volunteers, fund-raising, and willingness of voters to answer doors and talk to her after the Dobbs decision.

This may sound strange in a district that has historically voted Republican. Its congressman is Republican Peter Meijer, a scion of a Midwest grocery store dynasty, and its voters have backed Republicans in the last three presidential elections. But the district’s newly drawn boundaries that are in place for the first time this election cycle make it significantly friendlier to Democrats. Since Meijer, who was one of just 10 House Republicans to vote to impeach former President Trump, lost his primary to his more right-wing and anti-abortion opponent John Gibbs, Democrats hope to motivate the more Democratic-leaning voters in Grand Rapids and its suburbs who are now part of the district and are mad as hell about the abortion rights repeal.

“Everywhere around the state, when we knock on doors, people bring up abortion — it’s not a negative anywhere,” said Michigan state Senator Winnie Brinks. “People used to be pro-choice, but they were quiet about it. Now they’re not quiet about it. They’re like, ‘Nope, this is on the line, we’re gonna talk about it.’”

That was clear in interviews with voters in downtown Grand Rapids for the city’s “3rd Thursdays,” where residents congregate for live music and can go into the city’s art museum for free courtesy of the Meijer Foundation. It was clear in interviews on the other end of the district on the shore of Lake Michigan, where voters strolled watching the sun set over the lake on a Friday night. And it was clear in the views expressed by voters Scholten met knocking on doors.

“I will for sure be there to vote,” said Erica Kochaney, a Democrat and Grand Rapids resident who was at Grand Haven State Park on Friday evening. Reproductive freedom “is my number one reason for getting out there for sure.”

On the Scholten-Gibbs race and the issue of abortion, she added, “I know where she stands on it, and I’m fine, and I feel like I know where he stands on it, and I’m not fine with it.”

. . . .

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

Read the rest of Lissandra’s coverage at the link.

A “home grown daughter” of her Michigan District, Hillary is an experienced, resilient, courageous, values-based problem solver committed to making Government work for the common good rather than infringing on individual liberties, invading bedrooms and doctors’ offices, banning books, interfering with elections, and “dumbing down” education.

She is also a highly successful working parent who knows that the same teamwork, caring, creativity, and unselfishness that goes into the challenges of raising a family also can apply on a larger scale to American society. She knows that problems like inflation, infrastructure, climate change, health, safety, and education affect all Americans, regardless of party affiliation.

As a DOJ attorney working in one of the most fractured areas of American law and public policy, Hillary has seen first hand what works and what doesn’t work in today’s Government. She knows that “same old, same old” won’t get the job done for 21st Century America! She seeks a better America — for all Americans, regardless of race, color, creed, gender, or status.

Several weeks ago I wrote about under-appreciated American “good government hero” Frances Perkins, our first female cabinet secretary, appointed by FDR. https://immigrationcourtside.com/2022/08/14/%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%a6%b8%f0%9f%8f%bb%e2%99%80%ef%b8%8f%f0%9f%8e%96-a-true-american-hero-gets-her-due-frances-perkins-was-the-mother-of-americas-safety-net/

Perkins was driven by her life experiences and values, yet courageously and effectively “worked the system” (then basically an “Old Boys’ Club”) to achieve successes and innovations that have shaped our nation for generations (Social Security is just one of her achievements). Hillary Scholten embodies qualities that made Perkins a successful leader who made life better for all Americans!

No one legislator can do it all. But if anyone can bring fact-based legislating, the hopes, fears, and positive values of people in the heartland, and informed debate to our national legislative process, it’s Hillary and other “practical problem solvers” like her! Values, progress, innovation, and humanity over political expediency — that’s Hillary! She is a good listener and team-builder — willing and able to find common ground with those who might not share all her views.

I know Hillary as an unusual combination of intellectual and moral toughness with kindness, compassion, humanity, and common sense. She’s one of the nicest people you’d ever want to meet — makes you want to be on her team! She gets things done by inspiring others, not by threatening , demeaning, or excluding them!

The good folks of Mich 3 have a chance to do something really great — for their own district and for the future of America — by sending Hillary to Washington! We need you, Hillary, now more than ever!

🇺🇸 Due Process Forever!

PWS

09-06-22

⚒️👩🏾‍🌾🌾🇺🇸🗽 AN INSPIRING LABOR DAY MESSAGE FROM REV. CRAIG MOUSIN: Migrants Are The Backbone Of America & Those Who Fight For Migrant Justice Are Not Alone — A Special Podcast With Links To Music By John McCutcheon & Emma’s Revolution!

Dear Paul,

As we begin Labor Day weekend, I give thanks for the many ways your work and mission seek justice for all.

My latest podcast gives thanks to all of you who have worked to end Title 42 and to all those immigrants who have contributed to the common good.

As I end the podcast quoting Emma’s Revolution’s song, Bound for Freedom, I give thanks that we are not alone, but united in the struggle. Thank you.

https://blogs.depaul.edu/dmm/2022/09/02/lawful-assembly-podcast-episode-29-gratitude-for-those-who-labor-and-those-who-have-labored/

Have a great Labor Day weekend and Thank You.

Peace,

Craig

Rev. Craig B. Mousin

DePaul University

(mail) 1 East Jackson Boulevard

Chicago, Illinois 60604

(office) Suite 800H

14E. Jackson Blvd.

Chicago, Illinois 60604

312-362-8707 (voice)

312-362-5706 (confidential fax)

You can find some of my publications at either:

https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=667812or

https://works.bepress.com/craig_mousin/

You can find my digital story at:https://www.youtube.com/watch?v=c9VTkjhzIcI

You can follow the podcast Lawful Assembly at:https://lawfulassembly.buzzsprout.com

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

Thanks, Craig, for your “practical activism and scholarship!”

Takeaways:

Grass roots activism works to defeat the forces of darkness and White Nationalism (the defeat of the barrage of White Nationalist immigration amendments was covered on Courtside here: https://immigrationcourtside.com/2022/08/08/%f0%9f%87%ba%f0%9f%87%b8%f0%9f%97%bd%e2%9a%96%ef%b8%8fndpa-activists-help-beat-back-gop-nativist-spoiler-amendments-to-reconciliation-bill-dems-need-to-win-midterms-to-thwart-newest-gop-immi/);
The John McCutcheon version of Woodie Guthrie’s song “Deportees” shows how deeply ingrained “Dred Scottification” is in our country’s often unconstitutional, impractical, and sometimes immoral approach to immigration enforcement.“De-personification” of “the other’” — treating them as numbers, statistics, even “beds” or “apps” without names, faces or rights — and making up vile myths and lies about them, all while exploiting their labor — is still at the heart of the anti-American White Nationalist agenda!
Social justice activism is an important multi-disciplinary endeavor — here we see how law, education, religion, civics, history, broadcast journalism, performance art, music, technology, political science, economics, language, culture, & communication all work together to thwart hate and lies;
More undergraduate institutions need to be making these links and insisting that the true history of American Immigration — with all its triumphs and warts — becomes a staple of education;
Many of those tone-deaf (or worse) politicos pushing the far right agenda of hate, lies, and racism reflected in the defeated amendments are elitists masquerading as “bogus populists” who got the benefit of education at some of the top law schools and universities in the nation. Whatever happened to the teaching of basic legal ethics and responsibilities to society? The Jim Crow agendas of today differ little from those of the pre-civil rights era of the 20th Century. These are NOT debates between legitimate “differing viewpoints,” but essentially questions of truth vs. lies, hate v. tolerance, integration v. exploitation;
The White Nationalist Right is taking over school boards and local governance in the false name of “parents’ rights” — actually meaning the rights of far right parents to impose their minority religious doctrines and false social doctrines on others. The fight for social justice begins at the local level where where teaching of truth and legitimate debates are being drowned out by disgruntled, anti-democracy, empowered White Nationalist theocrats who claim they want liberty but actually are trying to impose autocracy and minority rule;
The fight for social justice never ends!

🇺🇸 Happy Labor Day, & Due Process Forever!

PWS

09-05-22

🇺🇸⚖️🗽AMERICANS MUST REJECT THE FAR-RIGHT’S FICTIONAL “INVASION” CHARADE & THE REST OF THE BOGUS ANTI-IMMIGRANT AGENDA — It’s Racism, Pure & Simple — There Is No “Invasion,” “Replacement Theory” Is A Racist Trope, The Borders Aren’t “Open,” Asylum Seekers Aren’t Trafficking Fentanyl (the very suggestion is facially absurd), & There Is More Than Enough Detention & Enforcement, Just Not Very Smart, Effective, Or, In Some Cases, Even Legal!☠️

https://www.washingtonpost.com/opinions/2022/09/01/republican-immigration-ads-invasion/

By Paul Waldman and Greg Sargent in WashPost:

. . . .

But over the airwaves and online, another story is playing out: an absolute torrent of ads meant to frighten and anger voters about immigration.

A new report from the pro-immigration group America’s Voice seeks to document this ongoing phenomenon. One of its key conclusions: “Republicans have made their nativist narrative a top messaging priority.”

In the world of Republican campaign ads, very little has changed since the xenophobic Trump presidency, and some of what’s in these ads is truly repellent.

Three themes dominate these ads, the report finds, and they are all wildly inflammatory and profoundly dishonest: The Biden administration has created “open borders,” undocumented immigrants are responsible for fentanyl overdoses and a full-blown “invasion” is underway.

The borders are anything but open; the Biden administration is pursuing, arresting and deporting people seeking to come to the United States by the thousands. The vast majority of fentanyl that comes in is smuggled through ports of entry in cars, boats and planes, not carried by undocumented immigrants. And as for an “invasion,” that’s no more true now than it was when Trump warned that caravans were about to overrun the country.

But the Republican ads portray horror and chaos — usually with a non-White face. Some ads show pictures of young Black men walking through rivers on their way to “invade” America, with language suggesting this “invasion” brings “terrorists, drugs and crime.”

Other ads say the Biden administration is supposedly “importing 20 million illegals and giving them amnesty” (the image for that one is people in Haiti), which can only be stopped by “a declaration of invasion.”

In some ads it’s not just an open border but a “wide open border” — once again, illustrated with pictures of Haitians. In others we’re told that “human, sex and drug trafficking are out of control because of Democrat governance,” while Democratic candidates “refuse to oppose Biden’s open border policy.”

Of course, there is no open border policy, but why should the fact that it doesn’t exist stop Democrats from opposing it? That just shows how sinister they are, these ads say, because they “want to destroy this country.”

All of this captures something essential about this political moment. For months, Republicans were certain they could spread fears of chaos in order to ride to victory in the midterms. They’d run on crime and immigration, not just to excite the base but also to scare unsettled swing voters.

Yet the dynamic unexpectedly shifted, and now disorder and, dare we say it, crime — as in the potential crimes of Donald Trump and many Jan. 6 defendants — are not necessarily playing in the GOP’s favor. The overturning of Roe v. Wade has unleashed another form of chaos and a host of new dangers threatening women. And all of these things are energizing Democrats.

. . . .

“Republicans are indulging in the worst kind of White nationalist rhetoric,” Frank Sharry, the executive director of America’s Voice, told us. “And an issue they thought would win over swing voters is at best a base mobilizer for voters they already have.”

What makes this all really ugly, however, is that the messaging remaining under the radar — which Democrats bear some blame for, having gone quiet on the issue — allows it to continue mostly unexamined. This, even though its worst incarnations — such as “great replacement theory” — have inspired recent mass shootings.

Along these lines, it’s worth keeping an eye on Blake Masters, the GOP Senate candidate in Arizona. He has trafficked heavily in great replacement theory and has run truly vile ads on immigration, including one that features machine-gun fire at the border. Yet in a place President Biden won by a whisker that’s also a border state, Masters is trailing by a meaningful margin.

As Sharry told us, Masters’s whole “declare an invasion” line “is not working, in a state where one-third of the voters are independents and border security is a top issue.”

Yet whether it works with independents and swing voters, this foul sewage has been flowing unabated. And it will surely continue to do so.

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

Read the complete article at the link.

The idea that individuals seeking to find a U.S. official who will listen to their asylum cases would be trucking along large amounts of fentanyl in their backpacks is facially absurd.

Ending scofflaw Trump failures to follow asylum and refugee laws at the border and beyond would not halt all illegal entries. No policy will do that, nor has there ever been one that even came close, although illegal incursions have risen and fallen over the years.

But, fair refugee and asylum programs that actually interpreted the applicable domestic and international laws correctly (instead of the “any reason to deny, no matter how wrong attitude” still widespread and tolerated at both Mayorkas’s DHS and Garland’s DOJ) and generously granted protection as was the intention behind the UN Refugee Convention in the first place would certainly encourage large segments of those now forced to irregularly cross the border instead to apply abroad or at legal ports of entry.

It would also facilitate the USG working with NGOs, the UNHCR, states, and localities to get individuals needed assistance so that their legal claims could be processed in a fair, efficient, and timely manner. The latter objectives seem to have totally eluded both Mayorkas and particularly Garland. They continue to “blow off the experts” and flounder with mindless, “designed to fail,” “deterrence-focused” gimmicks. Talk about a lose-lose!

Also to state the obvious, if CBP were less focused on apprehending individuals who pose no real threat to the U.S., but merely want a fair shot at applying for legal protection — something our laws require that Trump annihilated, the Federal Courts have flubbed, and Biden has done a substandard job of re-instituting — they would have time to focus more resources on drug and human smugglers.

Instead, in perhaps one of the dumbest and most wasteful juxtapositions in recent American history, the CBP focus is on “apprehending” (a term I use lightly, since many individuals “want” to be “found,” so they can get access to the system otherwise improperly denied to them by CBP) those merely seeking to comply with the law! To do that, CBP ignores or misses many of those who actually pose threats. At the same time, both DHS and DOJ use methods, attitudes, and legal interpretations that themselves undermine fundamental fairness, the rule of law, and humanity itself.

Immigrants are America’s past, present, and future! Indeed, climate change, rising oceans, drought, starvation, transportation improvements, globalized commerce, wars, religious bigotry, pandemics, and other factors beyond the control of any one government will continue to drive worldwide migration.

Building walls, prisons, hate, resentment, and constructing bogus “invasion myths” will not change the reality of human migration and the necessity to adopt to and harness it in a smart, humane, realistic manner. Doing the opposite, will only diminish us as a nation and inhibit our own chances for future prosperity. But, in the end, it won’t stop human migration.

🇺🇸Due Process Forever!

PWS

09-04-22

⚖️🗽🇺🇸🦸‍♂️ NDPA SUPERLITIGATOR RAED GONZALEZ DRUBS GARLAND AGAIN! — “Who else could persuade CA5 to agree with CA9, and get an award of costs,” asks Dan Kowalski of LexisNexis Immigration Community? — When will the unconscionable failure of immigrant justice at Garland’s Department of “Justice” finally end? When our nation’s democracy goes down in flames?🔥 ♨️

Raed Gonzalez ESQUIRE
Chairman, Gonzalez Olivieri LLP
Houston, TX
PHOTO: best lawyers.com

From Dan:

Another CA5 Pereira / Niz-Chavez Remand: Parada v. Garland (unpub.)

https://www.ca5.uscourts.gov/opinions/unpub/19/19-60425.0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/another-ca5-pereira-niz-chavez-remand-parada-v-garland#

“[T]he BIA’s decision to deny Parada’s motion to reopen was based on a legally erroneous interpretation of the statutes governing Notices to Appear and the stop-time rule. The Supreme Court has since reinforced the holding of Pereira and held—again— that to trigger the stop-time rule, a Notice to Appear must come in the form of “a single document containing all the information an individual needs to know about his removal hearing.” Niz-Chavez v. Garland, 141 S. Ct. 1474, 1478, 1486 (2021). That did not occur in this case, as the Notices to Appear served on Parada and her daughter did not contain the time or date for their removal proceedings. Thus, because “[a] putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule,” Pereira, 138 S. Ct. at 2113–14 (quoting 8 U.S.C. § 1229b(d)(1)(A)), the deficient Notices to Appear received by the Paradas did not stop the clock for the Paradas. … [O]ne of two keys must fit before the stop-time rule can be unlocked: service of a valid Notice to Appear or commission of an enumerated offense. The latter has not occurred here as no one has asserted that either of the Paradas has committed such an offense. And we have already concluded that the former has not occurred because the Notices to Appear served on the Paradas lacked the time and date of their hearing. Thus, the stop-time-rule box remained locked, the Paradas’ clock never stopped, and they accrued the necessary 10 years to satisfy the physical-presence requirement for cancellation of removal. In so concluding, we agree with the Ninth Circuit [emphasis added] which also held that “[b]y its terms . . . the stop-time rule applies to only the two circumstances set out in the statute, and a final order of removal satisfies neither.” Quebrado Cantor, 17 F.4th at 871. … To return to the analogy above, when Congress provided the two exceptions to the physical-presence requirement, it created all the keys that would fit. It did not additionally create a skeleton key that could fit when convenient. To conclude otherwise “would turn this principle on its head, using the existence of two exceptions to authorize a third very specific exception.” Quebrado Cantor, 17 F.4th at 874. Instead, “the ‘proper inference’ is that Congress considered which events ought to ‘stop the clock’ on a nonpermanent resident’s period of continuous physical presence and settled, in its legislative judgment, on only two.” Id. (quoting Johnson, 529 U.S. at 58). Lacking either here, the BIA committed a legal error in concluding otherwise and finding that the Paradas did not satisfy the physical-presence requirement to be eligible for cancellation of removal. For the foregoing reasons, the petition for review is GRANTED and the case is REMANDED to the BIA for further proceedings consistent with this opinion. … IT IS FURTHER ORDERED that respondent pay to petitioners the costs on appeal [emphasis added] to be taxed by the Clerk of this Court.”

[Yet another victory for Superlitigator Raed Gonzalez! Who else could persuade CA5 to agree with CA9, and get an award of costs?]

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

Male Superhero — Due Process Superheroes like Houston’s Raed Gonzalez are standing up for the rights of EVERYONE in America!
PHOTO: Creative Commons

Kudos to Raed for “taking it to” America’s worst “courts” in America’s most “immigrant-unfriendly” Circuit!

Tons of “rotten tomatoes” to Garland for his horrible mismanagement of EOIR, OIL, and the legal aspects of immigration policy at DOJ!

Immigration expert Professor Richard Boswell of UC Hastings College of Law asks: “Can someone explain why the government has been so obstinate on these cases? I like the fee award but I doubt that it has much impact on their behavior.”

I wish I knew, my friend, I wish I knew! There is no rational excuse for Garland’s abject failure to: put EOIR and OIL under progressive expert leadership committed to human rights and due process; replace the many weak “Trump holdover appointees” at the BIA with expert real, professionally competent judges; weed out more of the “deadwood” on the immigration bench; bring in qualified experts as EOIR Judges who could potentially create an existential improvement in the composition, performance, and procedures of the entire Federal Judiciary that would go even beyond the essential task of saving the lives of migrants; and finally make Constitutional Due Process and equal justice for all real at the “retail level” of our American Justice system!

If our democracy fails — certainly an unhappy possibility at this point in time — future historians will undoubtedly dissect the major responsibility stemming from Garland’s inexplicably weak, disconnected, and inept performance in ignoring the dangerous dysfunction in our Immigration Courts and Immigration Judiciary.

The scurrilous attack on our democracy by far-right demagogues started with racist lies about immigrants, continued with the weaponizing of the Immigration Courts, and evolved with the compromising of the Article III Judiciary! But, it certainly hasn’t ended there!

Getting rid of the leftovers of the “Trump Kakistocracy” at DOJ and EOIR should be one of the top priorities of the Biden Administration’s “campaign to save American democracy!” Why isn’t it?

The unconscionable failure of Garland’s chief lieutenants, Lisa Monaco, Vanita Gupta, Kristen Clarke, and Elizabeth Prelogar — all of whom supposedly have some experience and expertise in constitutional law, human rights, civil rights, racial justice, and legal administration (talk about a shambles at EOIR!) — to get the job done for immigrant justice at DOJ also deserves to go “under the microscope” of critical examination.

How do they glibly go about their highly paid jobs daily while migrants suffer and die and their attorneys are forced to waste time and struggle against the absurdist disaster at EOIR? Can any of these “out of touch” bureaucrats and politicos even imagine what it’s like to be practicing at today’s legally incompetent, insanely mal-administered, intentionally anti-due-process, overtly user unfriendly EOIR?

By the grace of God, I’m not practicing before the Immigration Courts these days! But, after recent conversations with a number of top practitioners who are being traumatized, having their precious time wasted, and seeing their clients’ lives threatened by EOIR’s stunning ongoing incompetence and dysfunction, I don’t understand what gives high-level political appointees and smug bureaucrats the idea that they are entitled to be “above the fray” of the godawful dysfunction, downright stupidity, and human trauma at EOIR for which they are fully accountable!

One practitioner opened their so-called “EOIR Portal” to show me how they were being mindlessly “double and triple booked,” sometimes in different locations, even as we spoke. Cases set for 2024 were “accelerated” — for no obvious reason — to October 2022 without advance notice to or consultation with the attorney — a clear violation of due process! Asylum cases that would require a minimum of three hours for a fair hearing were being “shoehorned” into two-hour slots, again without consulting the parties!

Long a backwater of failed technology, the “powers that be” at EOIR and DOJ are misusing the limited, somewhat improved technology they now possess to make things worse: harassing practitioners, discouraging representation, and further undermining due process with haste makes waste “Aimless Docket Reshuffling.” Because of EOIR’s gross mismanagement, more Immigration Judges are actually producing more backlog, issuing more wrong decisions, and generating more unnecessary non-dispositive time-wasting motions. It’s an abuse of power and public funding on a massive, mind-boggling scale that undermines our entire justice system!

It seems that the “malicious incompetence” of the Trump DOJ has been exchanged for “just plain incompetence and intransigence” at Garland’s DOJ. Is this “change we should embrace?” Hell no!

Let’s hope that the real superheroes like Raed Gonzalez, folks working in the trenches of our failed justice system, can bail the rest of us out and inspire others to use all legal and political means at our disposal to rise up against Garland’s intransigence on immigration, human rights, and racial justice at DOJ!

I agree with President Biden that the extreme, insurrectionist far-right is the greatest threat to American democracy at this moment. But, it is by no means the ONLY one! It’s time for everyone committed to our nation’s future as a constitutional democracy to look closely at the deadly EOIR farce that threatens humanity, undermines the rule of law in America, and squanders tax dollars and demand positive change! Now!

It’s not rocket science, 🚀 even if it is inexplicably “over Garland’s head!”

Has Alfred E. Neumann been “reborn” as Judge/AG Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?”
PHOTO: Wikipedia Commons

🇺🇸 Due Process Forever!

PWS

09-03-22

🏴‍☠️“ANY REASON TO DENY”🤮 — GARLAND BIA’S BIASED, ANTI-ASYLUM JURISPRUDENCE CONTINUES TO GARNER PUSHBACK FROM ARTICLE III’s — Dem AG Needs To Pay Attention To Assault On Democracy, Rule Of Law Taking Place In HIS Dysfunctional “Courts!” — Garland Reportedly Plans More Backlog-Building, Due-Process-Denying “Aimless Docket Reshuffling” (“ADR”)!

“Lady Injustice” has found a home at Garland’s dysfunctional EOIR!
Public Realm

Here are about a week’s worth of reports from Dan Kowalski at LexisNexis Immigration Community on the continuing disintegration of justice in “Garland’s Courts:”

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-on-credibility-cat-njoka-v-garland

CA3 on Credibility, CAT: Njoka v. Garland

Njoka v. Garland (unpub.)

“[W]e conclude that the Board erred in affirming the IJ’s denial of CAT protection. The Board’s sole justification for that affirmance was the adverse credibility finding. The Board suggested that, under Fifth Circuit precedent, an adverse credibility finding defeats a claim for CAT protection. See Ghotra v. Whitaker, 912 F.3d 284, 289 (5th Cir. 2019). But under the law of this circuit, an adverse credibility finding is “not determinative” of a claim for CAT protection.1 Ibarra Chevez v. Garland, 31 F.4th 279, 288 (4th Cir. 2022); see Camara v. Ashcroft, 378 F.3d 361, 371 (4th Cir. 2004) (“Because there is no subjective component for granting relief under the CAT, the adverse credibility determination on which the IJ relied to deny [the petitioner’s] asylum claim would not necessarily defeat her CAT claim.”). The Board was thus obliged to also consider Njoka’s independent evidence in the context of his claim for CAT protection.2 See Camara, 378 F.3d at 371-72. Because the Board did not fulfill that duty, we will grant the petition for review in part and remand for the Board to do so.”

[Hats off to Rajan O. Dhungana!]

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

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-interpol-red-notice-cat-gonzalez-castillo-v-garland

CA9 on INTERPOL Red Notice, CAT: Gonzalez-Castillo v. Garland

Gonzalez-Castillo v. Garland

“Petitioner Oscar Gonzalez-Castillo was found to be ineligible for withholding of removal by an Immigration Judge (“IJ”) because there were “serious reasons to believe that [he] committed a serious nonpolitical crime” in his home country of El Salvador. 8 U.S.C. § 1231(b)(3)(B)(iii). The government only presented one piece of evidence supporting application of the serious nonpolitical crime bar, however. It was an INTERPOL Red Notice, described at greater length below. The Red Notice accused Gonzalez-Castillo of committing “strikes” on behalf of the gang MS13, allegedly committed on a date when Gonzalez-Castillo was in the United States rather than in El Salvador, based on the date of entry found by the IJ. We conclude that substantial evidence does not support the IJ’s finding, affirmed by the Board of Immigration Appeals (“BIA”), that Gonzalez-Castillo is ineligible for withholding of removal based on the serious nonpolitical crime bar. This court has long interpreted “serious reasons to believe,” the standard set by the statute for the serious nonpolitical crime bar, as equivalent to probable cause. In this case, the INTERPOL Red Notice cannot, by itself, establish probable cause. The allocation of the burden of proof in immigration proceedings does not change this outcome. We accordingly grant Gonzalez-Castillo’s petition for review in part and remand to the agency to consider whether Gonzalez-Castillo is eligible for withholding of removal. We also grant the petition as to his claim under the Convention Against Torture (“CAT”), because the record reflects that the agency failed to consider all of Gonzalez-Castillo’s testimony and statements about the harms he suffered in El Salvador at the hands of state actors, so we remand for more complete consideration of the CAT claim. We are not persuaded, however, by arguments in the petition for review challenging the evaluation of evidence that was discussed or by the argument that that the IJ failed sufficiently to develop the record. We dismiss the petition in part as to his claim for asylum, because the arguments Gonzalez-Castillo raises on appeal with respect to the one-year bar for asylum relief were not exhausted before the BIA.”

[Hats off to Amalia Wille (argued) and Judah Lakin, Attorneys; Nicole Conrad and Joya Manjur, Certified Law Students; University of California, Berkeley School of Law, Berkeley, California; for Petitioner, and John P. Elwood, Kaitlin Konkel, and Sean A. Mirski, Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Amicus Curiae Fair Trials Americas!]

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

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-credibility-changed-conditions-sikhs-in-india—singh-v-garland

CA9 on Credibility, Changed Conditions (Sikhs in India) – Singh v. Garland

Singh v. Garland

“We have held that the Board of Immigration Appeals (BIA) may rely on a prior adverse credibility determination to deny a motion to reopen if that earlier finding factually undercuts the petitioner’s new argument. Greenwood v. Garland, 36 F.4th 1232, 1234 (9th Cir. 2022). But that does not mean the BIA can deny a motion to reopen just because that motion touches upon the same claim or subject matter as the previous adverse credibility finding. Here, Rupinder Singh submitted new evidence about religious persecution independent of the prior adverse finding. The BIA thus erred in holding that the earlier adverse credibility finding barred Singh’s motion to reopen. The BIA also erroneously concluded that Singh failed to show that the conditions for Sikhs in India changed qualitatively since his last hearing. Clear evidence shows the contrary. We thus grant the petition and remand.”

[Hats off to Garish Sarin!]

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

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-abuse-of-discretion-rivera-medrano-v-garland

CA1 on Abuse of Discretion: Rivera-Medrano v. Garland

Rivera-Medrano v. Garland

“Karen Elizabeth Rivera-Medrano, a citizen and native of El Salvador, has petitioned for review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of her request for withholding of removal under 8 U.S.C. § 1231(b)(3) and protection under the Convention Against Torture (“CAT”), 8 C.F.R. §§ 1208.16(c)–1208.18, and denying her motion to remand this case to the immigration judge (“IJ”) based on newly obtained evidence. We conclude that the BIA abused its discretion in denying her motion to remand. Accordingly, we grant the petition for review, vacate, and remand for further proceedings. … The BIA’s oversight is particularly significant here, where the credibility determination rested considerably on minor inconsistencies in what the IJ concluded was an otherwise credible presentation.”

[Hats off to SangYeob Kim, Gilles Bissonnette and Henry Klementowicz!]

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

President Biden is correct that Trump and his MAGA GOP are the biggest threat to American democracy. But, “Dred Scottification,” systemic denial of due process, and racial injustice still running rampant in Immigration “Courts” under a Democratic Administration is right up there as an existential threat!

Additionally, I’ve been getting reports this week from practitioners in various locations that EOIR is embarking on yet another mindless, ill-informed round of “Aimless Docket Reshuffling” — guaranteed to increase backlogs, decrease effective representation, and spew out more unprofessional and unjust results.

Once more, this inane initiative appears to have been undertaken with neither advance input from, nor sufficient notice to, those most affected — respondents and their attorneys! Same old, same old! This must stop!

Enough, already! Why aren’t all the “movers and shakers” of American law lined up in front of Garland’s Office demanding that he end the assault on our Constitution, common sense, good government, and human decency that unfolds every day in the disgracefully dysfunctional parody of a “court” system that is his sole responsibility!

The bar and NGO communities have to fight Garland’s assault on due process and good government with every available tool!

🇺🇸Due Process Forever!

PWS

00-02-22

☠️⚖️FAILNG JUSTICE: IMMIGRATION JUDGES 👩🏽‍⚖️ NEED INDIVIDUAL LAW CLERKS, NOT MORE FALLS CHURCH BUREAUCRACY & FAILED GIMMICKS! — With “Garland’s Courts” Flunking 😰 “All Three Prongs Of Due Process,” Law Clerks Would Immediately Improve Quality & Save Lives!

Nicholas Bednar,JD
PhD Candidate
Vanderbilt University
PHOTO: SSRN Author Webpage

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4189963

The Public Administration of Justice

93 Pages Posted: 19 Aug 2022

Nicholas Bednar

Vanderbilt University, Department of Political Science

Date Written: August 14, 2022

Abstract

Adjudicatory agencies decide who receives social-welfare benefits, which inventions deserve patents, and which immigrants get to remain in the United States. Scholars have argued that agency adjudication lacks sufficient structural and procedural protections to ensure unbiased decision-making. Yet these critiques miss a key problem with agency adjudication: the lack of adjudicatory capacity. This Article argues that low-capacity agencies cannot satisfy the Due Process Clause’s demand for accurate decision-making. To produce accurate decisions, adjudicatory agencies need sufficient levels of capacity: (1) material resources, (2) expert adjudicators, and (3) support staff. When agencies lack these resources, their adjudicators rely on various coping mechanisms to manage their workloads. They shorten hearings, make assumptions about respondents’ claims based on appearance, or take other steps to reduce the cognitive burdens associated with a high workload. Yet these coping mechanisms introduce error into the decision-making process. Often, these errors are not random and, instead, bias against one party to the dispute.

This Article uses the Immigration Courts as a case study of this phenomenon. The Executive Office of Immigration Review (EOIR)—the agency charged with adjudicating the removal of noncitizens from the United States—suffers from severe understaffing and has amassed a backlog of over 1.7 million cases. Analyzing over 1.5 million removal proceedings and 32,000 personnel records, this Article uses causal and statistical methods to examine the effect that one element of adjudicatory capacity (i.e., law clerks) has on outcomes in the Immigration Courts. This analysis finds that providing an Immigration Judge with one law clerk decreases the likelihood of removal by 5.2 percentage points and increases the likelihood of an asylum grant by 4.4 percentage points. These effects are significant and exceed the effect sizes of other known contributors to bias, such as the IJ’s prior employment and appointing president.

Why do adjudicatory agencies, like EOIR, appear starved for resources? This Article argues that neither Congress nor the president have sufficient electoral incentives to invest in these agencies. As a result, adjudicatory agencies will continue to make systematic errors without intervention. However, the Due Process Clause demands accurate systems of agency adjudication. If Congress and the president will not uphold their duty to build capacity within these agencies, then courts must reform administrative-law doctrine to promote due process. By reimagining the law of agency adjudication from a public-administration perspective, courts can provide agencies with the flexibility they need to manage their workloads while protecting the due-process rights of the respondents who appear before agency adjudicators.

Keywords: Administrative Law, Immigration, Due Process, Bureaucratic Capacity

Suggested Citation:

Bednar, Nicholas, The Public Administration of Justice (August 14, 2022). Available at SSRN: https://ssrn.com/abstract=4189963 or http://dx.doi.org/10.2139/ssrn.4189963

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

I agree with Bednar’s “bottom line:” With neither Congress nor the Executive motivated to bring EOIR into line with Constitutional Due Process, the task falls to the Article IIIs. Some judicial decisions have exposed the glaring, unacceptable constitutional and quality-control flaws in EOIR’s embarrassing and life-threatening dysfunction. Sadly, however, for the most part Article IIIs, starting with the Supremes, have failed to take the decisive action necessary to end the unjust nonsense at EOIR and require even minimal systemic reforms.

Notably, a PhD candidate with a JD knows exactly how to begin addressing the massive due process failure @ EOIR in a practical, easily achievable manner! But, nearing the midpoint of the Biden Administration, a distinguished former Federal Judge, once only a Mitch McConnell away from the Supremes, doesn’t “get it?”

On the DC Circuit, Garland had four individual Judicial Law Clerks. https://www.chicagotribune.com/news/breaking/ct-chicagoans-clerked-for-merrick-garland-03-18-20160324-story.html.

And, with due respect, 1) he issued far fewer opinions annually than an average Immigration Judge (fewer than 50 compared with 700+); 2) few of his decisions involved the potential “life of death” or at least “life-determining” consequences of decisions in Immigration Court. See generally, https://www.scotusblog.com/2019/10/empirical-scotus-the-singular-relationship-between-the-d-c-circuit-and-the-supreme-court/

One individual, personally selected, law clerk for each Immigration Judge seems like a very “modest ask.” Why hasn’t Garland “picked this low hanging fruit?”

Perhaps he needs to listen to Nicholas Bednar rather than out of touch politicos and bureaucrats at DOJ and EOIR! As Bednar points out, EOIR is a prime model of disastrous, horrible, failed “public administration of justice.” The public and the individuals whose lives hang in the balance deserve much better!

🇺🇸 Due Process Forever!

PWS

08-31-22

THE GIBSON REPORT — 08-29-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC

Weekly Briefing

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

CONTENTS (jump to section)

NEWS

LITIGATION & AGENCY UPDATES

RESOURCES

EVENTS

PRACTICE UPDATES

EOIR Practice Manual & BIA Practice Manual

EOIR: In response to comments from the public, EOIR is once again making the Board and Immigration Court Practice Manuals available as downloadable PDF documents. [Also, the BIA Practice Manual now lists the BIA brief page limit at 50 pages.]

Penn State Law: DACA Final Rule: What You Need to Know

NEWS

Biden administration moves to make DACA harder to challenge in court

NPR: NPR’s A Martinez talks to Homeland Security Secretary Alejandro Mayorkas about the Deferred Action for Childhood Arrivals (DACA) program which is now in the federal government’s code of regulations.

She’s at Brown. Her Heart’s Still in Kabul.

NYT: In their first year at U.S. universities, women who escaped the Taliban are struggling to adjust — and to reckon with what they left behind. See also One year on, Afghan refugees find shelter but little security in US.

Visa rules in Mexico don’t stop Venezuelans headed to US

AP: In 2021, when Venezuelans could still fly to Cancun or Mexico City as tourists, only 3,000 of them crossed the Darien Gap — a literal gap in the Pan-American Highway that stretches along 60 miles (97 kilometers) of mountains, rainforest and rivers. So far this year, there have been 45,000, according to Panama’s National Immigration Service.

A ‘radical shift’ at the border is making things tougher for Biden

CNN: Back in 2007, the number of migrants in this “other” category was negligible. But since then, it’s grown dramatically — 11,000% — with the sharpest increase in just the past two years.

New Mexico won’t deny law licenses over immigration status

AP: Announced Monday, the rule change from the New Mexico Supreme Court is scheduled to take effect Oct. 1. Several states already have provisions that disregard residency or immigration status in licensure decisions.

Unaccompanied Immigrant Children Who Are Pregnant And In US Custody Are Being Moved Across State Lines To Access Abortion Services

Buzzfeed: ORR is working on an updated policy, and advocates have heard that the agency was already transferring minors to other states if they need access to abortion services, Amiri said. But nothing official has been released.

LITIGATION & AGENCY UPDATES

1st Circ. Says BIA Didn’t Explain Seriousness Of Weed Crime

Law360: The First Circuit has told the Board of Immigration Appeals to have another look at a Haitian man’s asylum request, saying the board did not adequately explain why his marijuana offenses made him ineligible for asylum.

3rd Circ. Says Pa. Stalking Conviction Isn’t Deportable

Law360: The Third Circuit ruled that U.S. Department of Homeland Security couldn’t deport an Indian immigrant over a stalking conviction, saying the man was convicted under an overbroad Pennsylvania law that criminalized misconduct that doesn’t warrant deportation.

CA4: IJ Milo Bryant Violated Respondent’s Due Process Rights; Illegal Reentry Indictment Dismissed

LexisNexis: During that hearing, the immigration judge neglected to advise Fernandez Sanchez about his eligibility for voluntary departure or inform him of his right to appeal. Then, in his written summary order, the immigration judge indicated that Fernandez Sanchez had waived his right to appeal—even though this was never discussed during the hearing…Ultimately, we agree with Fernandez Sanchez that there is a reasonable probability that, but for the denial of his appeal rights, he would not have been deported.

Allies Tell DC Circ. Green Card Delays Threaten Safety

Law360: Afghan and Iraqi allies suing the federal government over delays with their green card applications told the D.C. Circuit that a lower court’s refusal to impose a deadline to address the delays endangers their lives given the deteriorating security conditions in their homelands.

Blogger Cops To Assisting Attys’ Alleged Immigration Scam

Law360: A New York City blogger told a Manhattan federal judge Wednesday that he assisted two lawyers in creating fraudulent asylum applications to submit to U.S. immigration authorities, pleading guilty to a conspiracy count.

GEO Group Hit With Investor Suit Over Forced Labor Claims

Law360: An investor of The GEO Group has lodged a derivative suit against higher-ups of the private prison operator, saying their disclosures about GEO’s financial prospects didn’t match internal financial concerns stemming from lawsuits alleging forced labor by immigrant detainees.

DHS Issues Regulation to Preserve and Fortify DACA

DHS: Homeland Security Secretary Alejandro N. Mayorkas today announced that the Department has issued a final rule that will preserve and fortify the Deferred Action for Childhood Arrivals (DACA) policy for certain eligible noncitizens who arrived in the United States as children, deferring their removal and allowing them an opportunity to access a renewable, two-year work permit.

EOIR 60-Day Notice and Request for Comments on Proposed Revisions to Forms EOIR-42A and EOIR-42B

AILA: EOIR 60-day notice and request for comments on proposed revisions to Form EOIR-42A, Application for Cancellation of Removal for Certain Permanent Residents, and Form EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents.

DOJ 60-Day Notice and Request for Comments on Proposed Revisions to EOIR-44

AILA: DOJ 60-day notice and request for comments on proposed revisions to Form EOIR-44, Immigration Practitioner Complaint Form. Comments are due 10/24/22.

RESOURCES

AILA: Practice Alert: Long-Pending Joint or Unopposed Motions at the BIA

AILA: Practice Pointer: Updated ICE Policy on Interests of Noncitizen Parents and Legal Guardians of Minor Children or Incapacitated Adults

AILA: Practice Alert: Update on Missing and Delayed RFEs

CLINIC: DHS Issues Final DACA Regulations

CLINIC: Supreme Court Holds that Biden Administration’s Termination of the Migrant Protection Protocols Did Not Violate the Immigration and Nationality Act Authors

CLINIC: The Permanent Bar Applies Retroactively. Really?

IRAP: Extensive collection of documents related to the U.S. Refugee Admissions Program Obtained through FOIA

Penn State Law: DACA Final Rule: What You Need to Know

TRAC: ICE Detention Numbers At Standstill Across the Board

EVENTS

8/29/22 Inside the U.S. Immigration System: USCIS Director Ur M. Jaddou in Conversation with Professor Ahilan Arulanantham

8/30/22 Naturalization During the Pandemic: “It Was the Best of Times, It Was the Worst of Times”

8/31/22 What to Do When You Get a Decision from the Ninth Circuit

8/31/22 Building Your Pro Bono Program

9/1/22 For Immigration Practitioners: Understanding Referrals & Resources for Low-Income Clients

9/1/22 National Engagement on Operation Allies Welcome and Ongoing Support of Afghan Nationals

9/7/22 Understanding FOIAs with DHS

9/7/22 Mediating Immigration Petitions for Review in the Seventh Circuit

9/8/22-9/29/22 Webinar Series: Dealing With Denials

9/8/22-9/9/22 ABA Bench & Bar Academy: Your Best Trial Practice

9/8/22 Post-Conviction Relief: “If I Could Turn Back Time!”

9/8/22 Trial Advocacy Skills – Working with Expert Witnesses in Asylum, Withholding of Removal, and Convention Against Torture Claims

9/8/22 USCIS Engagement: Cameroon Temporary Protected Status Designation

9/9/22 Understanding the Regulatory Practice

9/13/22 PLI: Representing Children in Immigration Matters 2022: Effective Advocacy and Best Practices

9/14/22 Representing U Visa Clients with Complex Issue

9/14/22 Partial to Full Accreditation Initiative 2022

9/15/22 Monthly NIPNLG Removal Defense Webinar: Credibility and Impeachment

9/15/22 Advanced Mandamus Trends

9/20/22 Nonprofit and For-Profit Entity Intersection 2022: Achieving Charitable Goals Through Innovative and Nontraditional Mechanisms

9/21/22 Breaking Down the Record in a Ninth Circuit Petition for Review

9/21/22-9/22/22 Refresher and Practice Tips: Legal Remedies for Immigrant Survivors

9/22/22 Maximizing Second Chances: Filing Appeals, Motions, and Practicing before the BIA

9/28/22 AILA: Microsoft Word Tricks That Will Change Your Life

9/29/22 Consular Processing Roundup for Families and Survivors

10/1/22-10/8/22 Spanish for Lawyers in Allende, Mexico

10/07/22-10/28/22 Understanding and Preparing Waivers

10/12/22 Prosecutorial Discretion Updates

10/12/22-10/13/22 NLG: Immigration Defense Strategies

10/18/22 VAWA Updates – USCIS Policy Changes and Practice Tips

10/19/22 U Visa: I-929 Process & Issues

10/20/22 Understanding Unlawful Presence and I-601/I-601A

10/27/22 2022 Convening On Advancing Universal Representation

10/29/22 4th Annual NIJC 5k for Immigrant Justice

11/2/22 TPS Updates

11/3/22 Drugs and Naturalization

11/8/22 SIJS-based Adjustment of Status with Delinquency or Crimes

11/16/22 Introduction to Conditional Permanent Residence and Filing the I-751

11/29/22 Building an Asylum Claim

12/6/22 Emerging Strategies for Prolonged Detention

12/7/22 Parole in Immigration

12/13/22 The Effects of Absences on Naturalization

12/14/22 Hot Topics in Asylum Law

To sign up for additional NIJC newsletters, visit: https://immigrantjustice.org/subscribe.

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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

Thanks, Elizabeth!

As usual, this is a good rundown of some of the continuing problems that Garland’s EOIR is having in the Federal Courts, including a few items previously reported on Courtside.

🇺🇸 Due Process Forever!

PWS

08-30-22

DOJ’s IMITATION OF DHS “SERVICE CENTERS” IN VA MIGHT OFFER LITIGANTS A CHANCE AT BETTER LAW! 😎 — Hon. Jeffrey Chase Points Out How DOJ’s Efforts To “Dumb Down” 😩 Immigration Courts & Replace Judicial Decision-Making With “Rote Adjudication” Could Unintentionally Give Individuals A Better Due Process Option!

https://www.jeffreyschase.com/blog/2022/8/16/the-4th-circuit-on-jurisdiction

Blog Archive Press and Interviews Calendar Contact

The 4th Circuit on Jurisdiction

On June 30, the U.S. Court of Appeals for the Fourth Circuit issued a decision that might not have received the attention it deserved. The end result of the court’s published decision in Herrera-Alcala v. Garland was to affirm an Immigration Judge’s denial of asylum based on a lack of credibility.1

But before reaching the merits, the court addressed a jurisdictional issue, and that is where our interest lies. At his removal proceeding, the petitioner was detained at a Louisiana correctional facility, which placed him physically within the territory of the Fifth Circuit. For some reason, the Administrative Control Court (which is where the administrative record for the case was created and maintained, and where documents were filed by the parties) having jurisdiction over that Louisiana correctional facility was in Fort Snelling, Minnesota, which is physically located within the Eighth Circuit’s jurisdiction.

However, the immigration judge who conducted the hearing remotely by video and rendered the decision was sitting at the Immigration Adjudication Center in Falls Church, Virginia, which is within the geographic jurisdiction of the Fourth Circuit. So after the BIA dismissed the petitioner’s appeal, his counsel sought review with the Fourth Circuit. The Department of Justice moved to change venue to the Fifth Circuit, arguing that the petitioner’s location was determinative. And an amicus brief filed by an immigrants’ rights group took the position that venue properly belonged in the Eighth Circuit, where the control court was located.

The Fourth Circuit resolved the question of jurisdiction using the language of the relevant statute. Since 8 U.S.C. section 1252(b)(2) states that the “petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings,” the court interpreted that to mean it is the location of the judge that determines jurisdiction. And as the judge in this case was in Virginia, it found proper jurisdiction to be with the Fourth Circuit.

The decision yields an immediate benefit, as there are presently nineteen Immigration Judges sitting in the two Immigration Adjudication Centers that are located within the Fourth Circuit’s jurisdiction (in Falls Church and Richmond, VA). Based on the Fourth Circuit’s ruling, any of the thousands of noncitizens whose cases were heard by one of these Virginia-based judges now have the option of seeking judicial review in the Fourth Circuit.

The impact of this becomes apparent when we look at the BIA’s precedent decision in Matter of L-E-A-.2 In that case, the Board held that the respondent’s family constituted a valid particular social group for asylum purposes, but then denied asylum by finding that a nexus had not been established between that family membership and the feared persecution. In fact, the decision created an unreasonably high standard for nexus in a commonly occurring type of asylum claim. But the decision contains a footnote recognizing that the Fourth Circuit holds a significantly different view of nexus in such cases, adding that L-E-A- did “not arise in the Fourth Circuit.”3

Although the Board doesn’t go as far as saying so, applying Fourth Circuit case law to the facts of L-E-A- would have resulted in a grant of asylum. As I discussed in far greater depth in this blog post in December, the Fourth Circuit has repeatedly reversed the Board on nexus, citing the latter’s error of focusing on why the persecutor targeted the group in question, instead of asking why they targeted the asylum applicant themself. For example, if the group in question is a family, it doesn’t matter if the persecutor is targeting that family for an unprotected reason such as money, revenge, or self-preservation. Per the Fourth Circuit, if the asylum seeker themself wouldn’t be targeted if not for their membership in that family, then nexus has been established, regardless of the reason the family is at risk in the first place.4

In addition to its more favorable take on nexus, the Fourth Circuit is also among the handful of circuits to consider verbal death threats to constitute persecution.5 This is important, because one who has been threatened in those circuits has thus established past persecution, causing burdens of proof regarding future fear and internal relocation to then shift to the government to rebut, and further opening the possibility for humanitarian grants of asylum even where the government meets its burden of rebuttal.6

The Fourth Circuit has also imposed on Immigration Judges a strong obligation under international law to fully develop the record in hearings involving asylum claims, particularly (but not exclusively) where the respondent is pro se, and considers an IJ’s failure to meet this obligation to be “presumptively prejudicial.”7 Any attorney who is representing on appeal an asylum applicant who appeared pro se below where the IJ had been sitting in Virginia might want to review the record to see if the duties imposed by the Fourth Circuit to develop the record, which includes a “broad and robust duty to help pro se asylum seekers articulate their particular social groups,” was satisfied.8

In spite of the above-listed benefits, advocates have identified a potential downside to the ruling in Herrera-Alcala should the Fourth Circuit’s view on jurisdiction be adopted nationwide. To illustrate this concern, I’ll use a hypothetical example arising in a circuit such as the Fourth with a body of case law favorable to asylum applicants. Let’s imagine that after briefing and documenting the claim in line with that circuit’s law, the presiding judge in Baltimore is out sick on the day of the merits hearing. A deserving asylum seeker could have a likely grant of asylum upended if a judge stationed in a jurisdiction with far less favorable case law is enlisted to hear the case by video under EOIR’s “No Dark Courtrooms” policy.9 While the intent behind substituting in a remote judge might be an innocent one, the impact on the asylum seeker of unexpectedly having to overcome a much tougher standard for nexus or a narrower definition of persecution could be devastating, as the Matter of L-E-A- example illustrated.

The Fourth Circuit’s view is presently limited to the Fourth Circuit. But should it come to be the universal rule, while whether a particular circuit will accept jurisdiction over a petition for review is beyond EOIR’s control, the agency may itself still choose which circuit’s case law its own Immigration Judges should apply in individual cases before the Immigration Courts. EOIR would do well to look to the example of USCIS, which advises its asylum officers conducting credible fear interviews that where there is disagreement among the circuits as to the proper interpretation of a legal issue, “generally the interpretation most favorable to the applicant is used when determining whether the applicant meets the credible fear standard.”10

I mentioned above the Fourth Circuit’s recognition of the duty of Immigration Judges to ensure that the record is fully developed in asylum claims. Scholars credit that obligation to the legal requirement on nations to implement treaties in good faith. For example, in discussing the adjudicator’s duty to develop the record in asylum cases, two leading international refugee law scholars explain the duty to implement treaties in good faith as holding states “not simply to ensuring the benefits of the Convention are withhold from persons who are not refugees, but equally to doing whatever is within their ability to ensure recognition of genuine refugees.”11

But shouldn’t that same obligation apply to not only developing the evidence of record, but also to deciding which law to apply when, as in Herrera-Alcala, there is more than one option? If there is an obligation on our government to do everything in its ability to ensure recognition of genuine refugees, then isn’t that obligation breached where an individual sitting in a geographic area in which the law deems her deserving of asylum is then denied protection because the judge being beamed into that courtroom is sitting in a place with less enlightened precedent?

Copyright Jeffrey S. Chase 2022. All rights reserved.

Notes:

Herrera-Alcala v. Garland, Nos. 20-1770, 20-2338, ___ F.4th ___ (4th Cir. June 30, 2022).

Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017).

Id at 46, n.3.

Perez Vasquez v. Garland, 4 F.4th 213, 222 (4th Cir. 2021).

See Sorto-Guzman v. Garland, No. 20-1762, ___ F.4th ___ (4th Cir. Aug. 3, 2022) (restating the court’s repeated holding that “the ‘threat of death’ qualifies as persecution.”); Bedoya v. Barr, 981 F.3d 240, 246 (4th Cir. 2020) (emphasizing that “under our precedent, as we have repeatedly explained, a threat of death qualifies as past persecution”).

8 C.F.R. §§1208.13(b)(1), 1208.13(b)(3)(ii), and 1208.13(b)(1)(B)(iii); see also Matter of D-I-M-, 24 I&N Dec. 448 (BIA 2008); Matter of L-S-, 25 I&N Dec. 705 (BIA 2012).

Arevalo Quintero v. Garland, 998 F.3d 612, 642 (4th Cir. 2021) (italics in original).

Id. at 633.

March 29, 2019 Memo of EOIR Director, “No Dark Courtrooms,” OOD PM 19-11.

USCIS Asylum Division Officer Training Course, Credible Fear of Persecution and Torture Determinations (Feb. 13, 2017), at 17.

James C. Hathaway and Michelle Foster, The Law of Refugee Status (2d Ed.), Cambridge Univ. Press, 2014, at 119.

AUGUST 16, 2022

PREVIOUS

Can Keathley Be Applied More Broadly?

NEXT

Correcting Course?

ARCHIVE

Blog | Archive | Press and Interviews | Calendar | Contact

Sign up with your email address to receive news and updates.

SIGN UP

We respect your privacy.

<img src=”https://images.squarespace-cdn.com/content/v1/593d84191e5b6ca18cb547ee/1576527959952-C9MO449EII0SH3V1X9M7/Screen+Shot+2019-12-16+at+3.24.24+PM.png” alt=”Screen Shot 2019-12-16 at 3.24.24 PM.png” />

Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a formerImmigration Judge and Senior Legal Advisor at the Board of Immigration Appeals.He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award.Jeffrey is also a past recipient of AILA’s Pro Bono Award.He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.

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

At the “Legacy INS,” the acronym for what were then called “Remote Adjudication Centers” was “The RACK” — with good reason! Once upon a time, EOIR went out of the way to emphasize the differences with, and independence from, INS — it ran “courts” not “adjudication centers,” and it was comprised of “judges” NOT “adjudicators.”

Indeed, I can remember a past (in person) IJ National Conference where a senior DOJ official received a rather chilly reception for referring to the IJs in the room as “highly paid immigration examiners who worked for the AG.”

But, times change, and passage of time does not always bring progress. In many important ways EOIR is going backwards. Over the years, particularly 2017-2021, it probably has become more “politicized, compromised, weaponized, and subservient to immigration enforcement” than it was when it operated within the “Legacy INS.” Now, its bloated hierarchical bureaucracy, unmanageable backlogs, lousy public service, and emphasis on “productivity” and carrying out DOJ policies, looks more and more like DHS — the successor to the agency from which it declared “independence” back in 1983. What an unforgivable mess!

Here’s a recent post with my “take” on Herrera-Alcala. https://immigrationcourtside.com/2022/07/02/⚖%EF%B8%8Fvenue-venue-whos-got-the-venue-the-4th-circuit-herrera-alcala-v-garland/

As a “vet” of thousands of Televideo Hearings during my 13+ years on the bench at Arlington, I can definitively say that they are inferior to in person hearings, for many reasons. But, sometimes bureaucratic attempts to “depersonalize” justice, cut corners, and achieve bureaucratic goals produce unanticipated outcomes!

🇺🇸 Due Process Forever!

PWS

08-28-22

🇺🇸 Due Process Forever!

Related posts:

The latest report on Garland’s accelerating disaster @ EOIR from Jason Dzubow, “The Asylumist:”

🇺🇸 Due Process Forever! Merrick Garland’s deadly Clown Courts 🤡, Never!

Related posts:

🇺🇸 DUE PROCESS FOREVER!

Related posts:

Attorney General Merrick B. Garland Administers the Oath of Allegiance and Delivers Congratulatory Remarks at Ellis Island Ceremony in Celebration of Constitution Week and Citizenship Day

🇺🇸 Due Process Forever!

Related posts:

🇺🇸Due Process Forever!

Related posts:

Former Sen. Claire McCaskill, now an MSNBC analyist, On Meet the Press:

Professor (and former prosecutor) Joyce White Vance, Professor Leah Litman, Professor Stephen I. Vladeck, Political Scientist Norman Ornstein:

Jennifer Rubin, WashPost opinion writer:

Eric Lutz in Vanity Fair:

🇺🇸 Due Process Forever!

Related posts:

🇺🇸Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

Thanks, Craig, for your “practical activism and scholarship!”

🇺🇸 Happy Labor Day, & Due Process Forever!

Related posts:

🇺🇸Due Process Forever!

Related posts:

From Dan:

Another CA5 Pereira / Niz-Chavez Remand: Parada v. Garland (unpub.)

Related posts:

Here are about a week’s worth of reports from Dan Kowalski at LexisNexis Immigration Community on the continuing disintegration of justice in “Garland’s Courts:”

CA3 on Credibility, CAT: Njoka v. Garland

CA9 on INTERPOL Red Notice, CAT: Gonzalez-Castillo v. Garland

CA9 on Credibility, Changed Conditions (Sikhs in India) – Singh v. Garland

CA1 on Abuse of Discretion: Rivera-Medrano v. Garland

🇺🇸Due Process Forever!

Related posts:

The Public Administration of Justice

🇺🇸 Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts: