"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Border enforcement once again dominates contemporary immigration law debates. Yet many legal practices commonly linked to border control—including policing, relocation, and exclusion—actually have little to do with immigration enforcement. Instead, immigration control provides a justification for surveillance and the erosion of civil liberties deep inside the United States. For instance, the governor of Texas issued an executive order this June, asserting the legal authority to arrest people suspected of unlawfully crossing the border or committing “other violations of federal law.” This executive order is framed as being about expanding the pipeline to deportation and, in particular, shoring up federal efforts to promote border security. Yet the reach of the order goes well beyond issues relating to deportation. It raises the central questions: Who decides who appears to be present in the United States without lawful immigration status, and on what basis?
More recently, certain lawmakers have employed the rhetoric of border control to justify busing or flying migrants to locations inside the United States. Texas Governor Greg Abbott (R) tweeted at the time: “We’re sending migrants to [Vice President Kamala Harris’s] backyard to call on the Biden Administration to do its job & secure the border.” Florida Governor Ron DeSantis (R) employed similar rhetoric to justify sending approximately 50 adults and children to Martha’s Vineyard without any apparent prior notice. This relocation may have violated criminal laws. The individuals who were relocated may have been given false information to induce them to board planes. Lawmakers who frame these relocations as a means of border control make the unjustified assumption that the targeted individuals had no claims to remain in the United States. This approach not only ignores laws permitting people to seek asylum but also treats certain U.S. residents as lacking basic civil liberties inside the United States. When government officials claim the ability to lure people from one state to another on false pretenses, they also claim virtually unlimited power to intrude on individual liberty in stated service of immigration control.
. . . .
In a variety of settings, ranging from politically motivated relocations of migrant communities to jailhouse immigration screenings, lawmakers present actions that curtail civil liberties as related to deportation. But a deportation-centric perspective, which centers whether and how certain practices might lead to removal, offers too limited a lens to understand the reach and impact of enforcement practices done in stated service of immigration control. It ignores the full costs of enforcement, including unjustified surveillance and policing. Rather than protecting the polity from a foreign threat, government actions purportedly aimed at immigration control undermine core liberties that ought to be protected within the American political community. If the ultimate aim of immigration law is to create an integrated political community, then we need to consider how law could operate to promote integration and inclusion, rather than treating all enforcement actions as a means to deportation.
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Read the complete article of the link.
This is why it’s such a disgraceful mistake for Garland and the Biden Administration to allow the racially-charged, anti-due-process travesty at EOIR to continue, largely unabated!The misguided idea that migrants are not “real persons” under the Constitution — and to a large extent the related view that their lawyers aren’t entitled to the common professional treatment and courtesies extended in most other parts of our legal system — definitely has“carryover” into the dehumanization of various categories of the “other” and ignoring the compelling evidence of abuse amassed by those lawyers working to keep the system honest.
For example, the Supreme’s dismissive treatment of women’s rights and humanity is definitely related to the degrading treatment of women’s claims in Immigration Court — an overt misogyny encouraged by Sessions, Miller, and their nativist acolytes!That Democrats as a whole have failed to “pick up” on the serious attacks on equal justice and due process in Immigration Courts and their carryover effect to other parts of our legal system is a bad sign for the future of American democracy. Once a “person” is treated as “less than a full person” under the Constitution, there is no limit to who can become a “legal nonperson.”
Many immigration issues are divisive. Protecting dreamers is not. Virtually every poll conducted on the subject finds that Americans of all political persuasions favor granting dreamers some form of permanent legal status, including a path to citizenship. Even Trumpers are on board, surveys show. Faith groups, law enforcement officials, employers, national security experts and other major constituencies besides typical bleeding-heart immigration advocates have urged Congress repeatedly to grant these young immigrants greater legal certainty.
Unfortunately — as is the case on so many issues — Congress has abdicated its responsibility to act. Instead, the executive branch has been tasked with devising temporary workarounds.
In 2012, the Obama administration announced a sort of Band-Aid solution, known as the Deferred Action for Childhood Arrivals (DACA) program. DACA offers some of these young immigrants access to (temporary) work permits and protections from deportation, which must be frequently renewed. Eligibility extends only to those who meet certain age and educational requirements, have lived here continuously since 2007 and pose no threat to public safety, among other conditions.
This program was generally expected to be a stopgap while Congress worked on broader immigration reforms or at least a pathway to citizenship for dreamers; so far, neither has materialized.
[As DACA immigrant program turns 10, legal challenges persist]
In the decade since it was introduced, DACA has weathered multiple legal challenges — including from a coalition of red states led by Texas, as well as attempted repeal by President Donald Trump. For now, the program remains mostly intact while the red-state challenge wends its way through the courts. But DACA’s days look numbered.
. . . .
This is hardly the only immigration issue on which Republican politicians have complained about executive overreach yet been reluctant to exercise their own powers. Other vulnerable, sympathetic populations of immigrants — such as the Afghan allies who were temporarily “paroled” into the United States — are stuck in their own legal limbo unless and until Congress acts.
But it’s always easier for politicians to grandstand over everyone else’s immigration policy choices than to produce solutions of their own.
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Read Catherine’s complete article at the link.
How stupid and cruel is the GOP’s assault on Dreamers? It’s not like most “Dreamers” are going anywhere. After all, there are already about 2 million individuals (not to mention family members, employers, etc.) backed up on Garland’s dysfunctional Immigration Courts. And, under Garland’s misguided leadership, more judges are actually building more backlog!
But, without DACA’s work authorization, those not eligible for other forms of relief (e.g., asylum, cancellation of removal) will lose their authorization to work. Since many are in critical or essential jobs with employers who can’t afford to be out of compliance with Federal laws, it’s reasonable to assume that Dreamers would lose those jobs. That means that many will have to take lesser jobs in the substantial “underground economy” operating in the U.S., largely as a result of the GOP’s obstinance on sensible immigration policy.
If that appears stupid, it’s because it is! But, what else is new with the GOP’s cruel, xenophobic, and unrealistic approach to immigration.
It’s remarkable that out of touch righty judges on the 5th Circuit, whose jobs and existence actually depend on the systemic non-prosecution of most Federal offenses, would actually have the gall to issue their off the wall ruling dumping on Dreamers! In reality, by necessity, only a small number of violations of Federal statutes are prosecuted. See. e,g., https://prisonprofessors.com/federal-crimes-to-prosecute-or-not/.
The Fifth Circuit’s “off the wall” apparent theory that Federal officials lack discretion to redirect prosecution resources toward the most serious offenders is pure “Federalist Society political poppycock!” It’s particularly out of bounds to critique the Feds for taking steps to insure that such discretion is exercised uniformly and reasonably, rather than arbitrarily and capriciously.
I had lots of experience with “PD” programs over four decades in Federal service. The DACA program is far and away the premier “model” program for the effective and rational exercise of PD.
The major impediment to the rational immigration law and policy adjustments America needs is today’s nativist-driven GOP. Unless and until enough American voters wise up and throw the GOP out at all levels, America will not achieve it’s full potential!
Ethics Prohibited Beyond This Point! “The naked self-interest was so rampant that Trump’s West Wing could be considered a nudist colony where decency was shed instead of clothing.” CREATIVE COMMONS.
Documents seized from Donald Trump’s Florida home (credit: Department of Justice)
Sometimes we write a lot of words on Steady. Today will be an exception. Because for all that there is to say, for all that needs to be said, for all that an accounting for history requires we say, the general sentiments are quite simple:
They knew. They all knew.
It was clear to anyone who had an ounce of appreciation for what the job of the presidency entails, to anyone who respected the constitutional order of our government, to anyone who worried about the health and safety of this nation, to anyone with a moral compass, to anyone who prizes the common sense of purpose that great leaders can summon, that Donald J. Trump had no business anywhere near the presidency.
Now, as he melts down in the face of a serious criminal investigation, as we see pictures of how he stored classified material and his utter disregard for our nation’s most sensitive secrets, as we are left to wonder what he was up to and what damage was done, we should recognize that we would not be where we are today without his enablers, apologists, and hangers-on.
They heralded his outrageousness in a chorus of sycophancy.
They feted his vileness.
They viciously attacked those who pointed out the obvious, that Trump was mentally, emotionally, intellectually, morally, and constitutionally unfit for his office.
And who are they? They are the Republican politicians, the so-called serious ones who expressed their concerns in private even as they used Trump to achieve their desired tax cuts and judges. They are the members of his administration — senior and junior — who jockeyed to maximize their career benefit at the expense of doing the necessary work for the American people. They are the lawyers who twisted themselves into pretzels to try to legalize his inherent lawlessness. They are the media personalities who saw Trump as a printing press for their accrual of wealth and power. They are the capitalists who put corporate earnings ahead of the well-being of the nation.
While Trump’s voters were primed with a toxic stew of hatred, bigotry, and divisiveness, the small cabal playing the inside game didn’t bother with the MAGA hats. They were too busy trading access for favors. The naked self-interest was so rampant that Trump’s West Wing could be considered a nudist colony where decency was shed instead of clothing.
But make no mistake…
In their cowardice, they knew.
In their cynicism, they knew.
In their contempt, they knew.
In their rationalizations, they knew.
In their acquittals of his conduct, even for impeachment, they knew.
They knew when they could have stopped him — before he became president, and once he was president.
But they didn’t stop him. And with their inaction, they encouraged him.
As the Trump bubble begins to pop, all these people who knew what he was all along will likely scurry like cockroaches when the lights go on. They will make all sorts of excuses for their complicity. They will gaslight, lie, and try to rewrite history. You can already see it in many of their so-called tell-all books. Except what they are telling is only the story they want people to hear. It is not the truth.
The truth is that they don’t dare say what we all know. They knew.
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Throughout history, despots and would-be despots have surrounded themselves with motley crews of sycophants, toadies, and retainers. Trump has excelled at it!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
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.
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.]
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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: 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.
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.
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.
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
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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.
(Reuters) – A conservative judge appointed by former President Donald Trump on Monday accused his colleagues on the 9th U.S. Circuit Court of Appeals of playing “dirty” in a “trainwreck” of rulings to prevent immigrants from being deported.
U.S. Circuit Judge Lawrence VanDyke’s criticism came in a dissent to a 2-1 decision holding a Mexican native’s California conviction for dissuading a witness from reporting a crime was not a deportable offense under federal immigration law.
VanDyke, who has become known for a string of dissents since joining the liberal-leaning court in 2020, noted he had not been shy in criticizing the San Francisco-based court’s “abysmal and indefensible immigration precedents.”
He said the 9th Circuit for more than a decade has been “doing everything in our power (and much not) to upset” the Board of Immigration Appeals’ “reasonable” interpretation of what constitutes an offense related to obstruction of justice.
The BIA in this case had concluded Fernando Cordero-Garcia committed such an offense after he was convicted in California of sexual battery without restraint, sexual exploitation by a psychotherapist and dissuading a witness from reporting a crime.
“My colleagues in the majority should be embarrassed,” VanDyke wrote. “Perhaps not for their wrong decision today–to err is human, after all, even for those in robes. But they should be troubled by our court’s jaw-dropping, always-increasing, epic collection of immigration gaffes.”Cordero-Garcia’s lawyer, Michael Mehr, declined to comment.
Cordero-Garcia, who entered the country in 1965 as a lawful permanent resident, was a psychologist for the County of Santa Barbara Alcohol, Drug and Mental Health Services department who prosecutors said sexually assaulted patients, the ruling said.
Two appointees of Democratic presidents — U.S. District Judge Barry Moskowitz, a visiting judge on the court, and U.S. Circuit Judge Andrew Hurwitz — ruled for Cordero-Garcia in overturning the BIA’s decision on the obstruction offense.
Moskowitz, writing for the majority, said he was not writing on a “clean slate,” as the 9th Circuit in 2020 ruled an “obstruction of justice” offense must be connected to ongoing or pending criminal proceedings.
The California law Cordero-Garcia was convicted under, by contrast, does not require any connection to an ongoing or pending proceeding or investigation, making it “not an appropriate comparator” to obstruction under federal law.
VanDyke, though, said the 9th Circuit’s approach had created a “lopsided circuit-split,” with the majority acknowledging its ruling ran counter to decisions by the 1st and 4th U.S. Circuit Courts of Appeals.
The case is Cordero-Garcia v. Garland, 9th U.S. Circuit Court of Appeals, No. 19-72779.
For Cordero-Garcia: Michael Mehr of Mehr & Soto
For the United States: Rebecca Hoffberg Phillips of the U.S. Department of Justice
While VanDyke has been eager to rip into his colleagues for critically reviewing BIA rulings, rather than just “rubber stamp deferring,” he is no stranger to controversy. He received the coveted “not qualified to serve” rating from the ABA and has been characterized as an “unqualified hack” by Joe Patrice over at abovethelaw.com.https://abovethelaw.com/2021/12/ninth-circuit-judge-has-had-it-with-trump-judges-insulting-dissents/.
Interestingly, a chunk of the dissent is dedicated to showing that Mr. Cordero-Garcia is a louse. However, that doesn’t seem to have much to do with the legal application of the “categorical test” to his crime in the immigration context. For all its difficulties, Congress was well aware that courts had historically applied the “categorical test” as opposed to the “sounds like a bad guy” approach when they enacted the statutory language in question.
Curiously, VanDyke castigates his majority colleagues for “result oriented” decision making. But it seems highly unlikely that either District Judge Barry Ted Moskowitz, who wrote the opinion, or Circuit Judge Andrew Hurwitz would have chosen Mr. Cordero-Garcia’s situation as one to “throw out a lifeline.”
What’s more likely is that they fairly applied controlling Circuit precedent notwithstanding the highly unsympathetic individual involved. By contrast, critics have characterized VanDyke as an ideologue — driven by a far-right agenda — whose main focus on the bench has been “writing vitriolic Town Hall editorials to publish in F.4th.” Id.
From a due process standpoint, one of the most severe problems undermining our entire justice system today is the disturbingly poor performance of the BIA which often functions as a “rubber stamp” on incorrect anti-immigrant decisions by Immigration Judges, many of them appointed during the Trump Administration with questionable credentials, at best. That’s when the BIA isn’t busy serving as a “shill” for DHS Enforcement — often bending the law or going out of their way to sustain ICE appeals from correct decisions below that grant relief or benefit individuals. BIA precedents favorable to asylum seekers and other migrants are few and far between — despite an obvious lack of immigration and human rights expertise among many Trump appointees to the immigration bench.
The problem is compounded when reviewing Circuit Courts ignore the glaring Constitutional conflict of having a “court” that is “owned” by an enforcement agency (and was blatantly “weaponized” against migrants by Sessions and Barr) and the poor quality decision making, lack of scholarship, and overt bias that plagues EOIR. “Rubber stamp deference” to BIA decisions that do not deserve it is a systemic problem for the Article IIIs, actively encouraged by the Supremes judge-created Chevron and Brand X doctrines of undue deference. From this perspective, VanDyke and many (not all) of his Trump colleagues are a big part of the problem — not the solution!
Michael K. Mehr ESQ! Senior Partner Mehr & Soto LLP Santa Cruz, CA PHOTO: Website
Many congrats to Michael Mehr for vigorously and successfully litigating this complex issue in the 9th Circuit. It’s telling to compare the “quiet competence” of dedicated, expert advocates like Mehr with the “bombastic grandstanding” of VanDyke and others in the xenophobic right. Mehr and others in the NDPA have honed their their advocacy and scholarship skills by decades of giving a “voice” to those who otherwise are seldom “heard” by the powers that be.
Undoubtedly, given the circuit split, this eventually will end up at the Supremes. There, VanDyke’s fellow Trump appointees could well agree with him. But, that might be more reflective of problems with the composition of today’s Supremes than with the law. Stay tuned!
⚡️🔌 SHORT CIRCUIT! — TOTALLY UNQUALIFIED TRUMP HOLDOVER & ANTI-IMMIGRANT ZEALOT TRACY SHORT FINALLY FORCED OUT @ EOIR — Notorious Member Of Sessions-Hamilton-Barr “Atlanta Xenophobic Mafia” 🏴☠️ Resigns 😎⚖️🗽👍🏼
By Paul Wickham Schmidt
Special to Courtside
July 21, 2022
Multiple sources report that now-former Chief Immigration Judge Tracy Short resigned today. This long overdue action ends one of the most grotesque ongoing farces in the American legal system.
This total travesty saw the Trump holdover member of the Sessions-Hamilton “Atlanta Xenophobic Mafia” — appointed by former AG Barr without any judicial experience or qualifications — continue to drag down the Immigration Courts with increased due-process-denying backlogs and anti-immigrant shenanigans during the first 18 months of the Biden Administration. As a “Senior Executive,” Short could and should have been reassigned long ago by AG Merrick Garland to a position where he no longer could undermine American justice.
Short’s appointment by Barr two years ago stunned and outraged experts and practitioners. https://wp.me/p8eeJm-5HB. ICE Atlanta and the Atlanta Immigration Court were generally held in low professional regard by practitioners and observers not part of the nativist cabal with which both have long been associated.
Short’s appointment was particularly galling to those committed to due process and fundamental fairness because he replaced then Acting Chief Immigration Judge Christopher Santoro, a far more qualified candidate who had been an outspoken force for fairness and impartiality. That’s actually what the Immigration Courts are supposed to be about, but clearly were not during the Trump era at DOJ.
Short’s resignation comes as the National Association of Immigration Judges (“NAIJ”) seeks “re-recognition” from the Biden Administration. Short helped spearhead Barr’s inexplicably successful effort to “de-certify” the NAIJ as thinly disguised “punishment” for speaking out for judicial independence and exposing the many ongoing abuses of due process at EOIR.
Predictably, nativist/restrictionist groups and their “GOP cheerleaders” like Sen. Chuck Grassley (R-IA) and insurrectionist apologist Rep. Jim Jordan (R-OH) raised absurdist claims of a “political vendetta.” That’s ironic considering that the Trump group improperly “weaponized”EOIR to serve not as a legitimate quasi-judicial arbiter, but rather as an overtly biased and unqualified “enforcer” of their racially-charged “gonzo” enforcement policies.
The latter combined illegality, incompetence, and gratuitous cruelty in a toxic brew directed at migrants. It particularly targeted those of color, women, and children.
This apoplectic response by the radical right in and of itself should assure Garland that he is finally on the right track with getting unqualified judges and administrators out of EOIR and replacing them with competent judges with reputations as fair-minded experts in due process, human rights, and immigration. Perhaps the curtain is finally beginning to come down on the long-running “clown show” at EOIR!
During the Trump Administration, appointment of former prosecutors as Immigration Judges outnumbered appointments from the ranks of private and academic sector practitioners by approximately nine to one. At first, Garland curiously did little to change that — actually elevating some of his predecessors’ questionably-qualified candidates. Now, this very modest long overdue effort to rid the system of “deadwood” and bring in at least some experts from outside the world of government prosecutors is sending “shockwaves” through “restrictionist world.” Restrictionists ran roughshod over the Immigration Court system during the days of White Nationalist Stephen Miller and his cronies! They obviously hate the idea that the Biden Administration belatedly is acting like the 2020 election actually had consequences!
No immediatereplacement for Short was named by EOIR. Garland must not pass up this opportunity to bring true expertise and dynamic due-process-focused leadership into his broken EOIR court system! It’s up to everyone committed to fairness and due process for all at EOIR to make sure that Garland “gets it right” this time around!
Anti-Asylum Judges In Action! Factual distortions, ignoring evidence, and misapplications of the law are some of the “weapons” wielded by some EOIR judges to stop asylum seekers from getting the life-saving legal protections they deserve! Article III Courts can compound the problem by mis-using “deference” to avoid critical examination of the frequent abuses of humanity and the rule of law inflicted by this parody of a court system. Albrecht Dürer, Public domain, via Wikimedia Commons
ONE TINY STEP FOR MANKIND: But It’s Going To Take Much More Than Finally Replacing A Few Stunningly Unqualified Judges To Save EOIR!
By Paul Wickham Schmidt
Courtside Exclusive
June 25, 2022
Over the last few weeks the long overdue and essential process of weeding out poorly qualified Immigration Judges — still on “probation” at EOIR — finally got off to a very modest start.
Imagine yourself as a refugee fighting for your life in an asylum system that’s already stacked against you and where the “judges” work for the Attorney General, part of the Executive Branch’s political and law enforcement apparatus.
How would you like your life to be in the hands of (now) former Immigration Judge Matthew O’Brien. He was appointed in 2020 by former AG Bill Barr — a staunch defender of the Trump/Miller White Nationalist, xenophobic, anti-immigrant agenda.
Nativism A “Qualification?”
What made O’Brien supposedly “qualified” to be a “fair and impartial” administrative judge?
Thankfully, O’Brien will pass into history. But, the damage inflicted by the “official policy of child abuse” will adversely affect generations.
Or, perhaps it was O’Brien’s intimate connection with a leading nativist group. Immediately prior to his appointment, he was the “Research” Director for the Federation for American Immigration Reform (“FAIR”) — a group renowned for sloppy to non-existent “research” and presenting racially-motivated myths and fear mongering as “facts.”
As noted by Nowrasteh, that’s not the only example of FAIR providing “bogus research papers” designed to “rev up hate” and demean the contributions of immigrants both documented and undocumented.
The Anti-Defamation League (“ADL”), one of America’s most venerable anti-hate, anti-misinformation groups, founded more than a century ago “To stop the defamation of the Jewish people and to secure justice and fair treatment to all,” had this to say about O’Brien’s former employer:
While the majority of the extreme anti-immigrant sentiment in the U.S. emanates from fringe groups like white supremacists and other nativists, there are a number of well-established anti-immigrant groups such as Federation for American Immigration Reform (FAIR), Center for Immigration Studies (CIS), NumbersUSA and The Remembrance Project which have secured a foothold in mainstream politics, and their members play a major role in promoting divisive, dangerous rhetoric and views that demonize immigrants. A number of these groups have attempted to position themselves as legitimate advocates against “illegal immigration” while using stereotypes, conspiracy theories and outright bigotry to disparage immigrants and hold them responsible for a number of societal ills. A decade ago, most of this bigotry was directed primarily at Latino immigrants, but today, Muslim and Haitian immigrants, among others, are also targeted.
. . . .
There is a distinct anti-immigrant movement in this country, whose roots can be traced back to the 1970s. Groups such as the Federation for American Immigration Reform (FAIR) and Center for Immigration Studies (CIS) hope to influence general audiences with somewhat sanitized versions of their anti-immigrant views. In their worldview, non-citizens do not enjoy any status or privilege, and any path to citizenship for undocumented immigrants or refugees is portrayed as a threat to current citizens. Like some other problematic movements, the anti-immigrant movement also has a more extreme wing, which includes border vigilante groups, as well as groups and individuals that seek to demonize immigrants by using racist, sometimes threatening language.
So, perhaps, you say, once actually “on the bench,” Judge O’Brien was able to overcome his biases and knowledge gaps and function as a fair and impartial judicial officer. Nope! Not in the cards!
According to TRAC, O’Brien denied almost every asylum case he heard (96.4% denials). That was, astoundingly, nearly 40% above the average of his colleagues in Arlington and nearly 30% higher than the nationwide asylum denial rate of approximately 67%.
But, to put this in perspective, we have to recognize that this denial rate had already been intentionally and artificially increased by a expanded,”packed,” politicized, “weaponized,” and intentionally “dumbed down” EOIR during the Sessions/Barr era at DOJ. For example, approximately 10 years ago, more than 50% of asylum, cases were being granted annually nationwide, and approximately 75% of the asylum cases in Arlington were granted. See, e.g., https://trac.syr.edu/immigration/reports/judge2014/00001WAS/index.html. And, even then, most asylum experts would have said that the nationwide grant rate was too low.
Gaming The System For Denial
It’s not that conditions in “refugee/asylum sending” countries have gotten better over the past decade! Far from it! The refugee situation today is as bad as it has ever been since WWII and getting worse every day.
So, why would legal refugee admissions be plunging to record lows (despite a rather disingenuous “increase in the refugee ceiling” by the Biden Administration) and asylum denials up dramatically over the past decade?
It has little or nothing to do with asylum law or the realities of the worldwide refugee flow, particularly from Latin American and Caribbean countries. No, it has to do with an intentional move, started under Bush II, tolerated or somewhat encouraged in the Obama Administration, but greatly accelerated during the Trump-era, to “kneecap” the legal refugee and asylum processing programs. Indeed, the “near zeroing-out” of refugee and asylum admissions and the illegal replacement of Asylum Officers by totally unqualified CBP Agents by the Trump Administration are two of the most egregious examples.
Ironically, the EOIR backlog tripled. Under the “maliciously incompetent management” of the Trump group at DOJ, more judges actually meant more backlog! How is that giving taxpayers “value” for their money?
Some of the new judges, like O’Brien and some of the Immigration Judges “elevated” to the BIA, were appointed specifically because of their established records of anti-asylum bias, rude treatment of attorneys, and dehumanizing treatment of asylum seekers and other migrants.
“Ignorance And Contempt”
It’s not like O’Brien was just your “garden variety” “conservative jurist.”(I’ve actually worked with many of the latter over the years). No, he was notorious for his lack of scholarship, rudeness, and bias!
Here are a few of the comments he received on “RateYourJudge.com:”
“Rarely grants cases. No knowledge of the law, only there to deny cases. He needs to be removed.”
“Biased judge, hates immigrants and even kids of immigrants.”
“Incompetent.”
“One of the most condescending and self-righteous judges I have had the displeasure to hear. His word choice and tone left absolutely no doubt that he considered the Respondent to be beneath his notice, even to the point of referring to her as “the female Respondent” and to her domestic partner as a “paramour”. I have heard other judges’ oral opinions on very similar sets of facts, and they were accomplished in a fifth of the time with no loss of dignity to anyone.”
“This guy’s ignorance about immigration law and contempt for the people who appear before him is staggering. The way he threatens lawyers is reprehensible. EOIR is a disgrace.”
“Horrible human being with no business being on the bench. Shame on EOIR for allowing him to continue adjudicating cases.”
“Late, abusive, made up his mind before the case even started, frequently interrupted testimony, yelled at immigrants and their lawyer, and refused to listen to anything we said. Ignorant of the law and facts of the case. He should go back to directing hate groups.”
Among the stream of negative comments there were three “positive” comments about O’Brien;
Most of the comments both positive and negative were “anonymous” or apparent user “pseudonyms;”
“RateMyImmigrationJudge” is neither comprehensive nor transparent.
Flunking the “Gold Standard”
So, was O’Brien really as horrible as most experts say? Let’s do another type of “reality check.”
Among the other IJs at the Arlington Immigration Court, two stand out as widely respected expert jurists who have served for decades across Administrations of both parties. Judge John Milo Bryant was first appointed as an Immigration Judge in 1987 under the Reagan Administration. Judge Lawrence Owen Burman was appointed in 1998 under the Clinton Administration. With 66 years of judicial service between them, they would be considered more or less the “gold standard” for well-qualified, subject matter expert, fair and impartial Immigration Judges.
Significantly, according to the last TRAC report, O’Brien’s asylum grant rate of 3,6% wasapproximately 1/15th of Judge Bryant’s and approximately 1/22 of Judge Burman’s. https://trac.syr.edu/immigration/reports/judgereports/. Case closed! O’Brien should never have been on a bench where asylum seekers lives were at stake and expertise and fairness are supposed to be job requirements!
“Worse Than O’Brien”
What about now former Arlington Immigration Judge David White who was removed at the same time as O’Brien? Apparently, during his relatively short tenure (appointed by Barr in 2020), White was unable to deny enough asylum to qualify for TRAC’s system (100 decisions minimum).
Yet, he made an indelible impression on those “sentenced” to appear before him. Here are comments from RateMyImmigrtionJudge.com:
“This judge is absolutely terrible. Unfair and biased. He is only here to deny asylum cases regardless of what the person has been through. Completely misstates the facts, doesn’t know the law so goes after credibility (using those misstated facts) as an excuse to say there’s no past persecution. Absolute disgrace.”
“Worst judge ever. The clerks at the Immigration Court told the private bar attorneys that they have NEVER seen this judge approve an asylum case. Not one. They have running bets and jokes about him, but he never grants. He writes the denial during the trial instead of listening to the person testify. He is insulting and rude and not at all compassionate about trauma.”
“This is the worst immigration judge in Arlington, hands down. He’s even worse than O’Brien, and O’Brien is an former hate-group director.”
“Terrible immigration judge. Had his mind made up well before our hearing. Came in with a prewritten denial that misstated the law. Was rude and dismissive about my client’s trauma.”
Wow! Worse than O’Brien. That’s quite an achievement.
GOP Court Packing
Fact is, the overt politicization, “weaponization,” and “dumbing down” of the Immigration Courts goes back nearly two decades to AG John Ashcroft and the Bush II Administration. Ashcroft reduced the size of the BIA as a gimmick to “purge” the supposedly “liberal” judges — those, including me, who voted to uphold the legal rights of migrants against government overreach. In other words, our “transgression” was to stand up for due process and the individual rights of immigrants — actually “our job” as properly defined.
And, the downward spiral has continued. The DOJ Office of Inspector General (“OIG”) actually confirmed some of the Bush II improper Immigration Judge hires. But, they avoided dealing with the “BIA purge” that got the ball rolling downhill at EOIR! The GOP has been much more skillful than Dems in reshaping the Immigration Courts to their liking.
During the Trump Administration, putting clearly unqualified IJs who were some of rudest highest denying in America on the BIA was certainly “packing” and “stacking” EOIR against legitimate asylum seekers. Again, however, the OIG failed to “seal the deal” regarding this outrageous conduct that has undermined our entire justice system, fed uncontrollable backlog, and cost human lives that should and could have been saved.
Trump’s “court packing scheme” was no “small potatoes” matter, even if some in the Biden Administration are willfully blind to the continuing human rights and due process disaster at EOIR.
Removing two of the most glaringly unqualified Barr appointees in Arlington is a very modest step by AG Garland in the right direction. But, it’s going to take more, much more, decisive action to clean out the unqualified and the deadwood, bring in true expertise and judicial quality, and restore even a modicum of legitimacy and integrity at EOIR.
Reactionaries’ Predictably Absurdist Reaction
Meanwhile, even this long overdue, well justified, and all too minimal change at EOIR produced totally absurdist reactions from O’Brien and fellow nativists (including some still “hiding out in plain sight” at DOJ) which were picked up by the Washington Times (of course). Don’t believe a word of it!
The removal of guys like O’Brien and White — who never had any business being placed in “quasi-judicial” positions where they exercised life or death authority over refugees of color whose humanity and legal rights they refused to recognize, is just a beginning. The ethical, competence, and judicial attitude rot at EOIR goes much deeper.
Garland has been dilatory in “cleaning house” at EOIR. Vulnerable individuals who were wrongly rejected rather than properly protected have needlessly suffered, and probably even died, as a result. Poor Immigration Judging and lack of effective, correct, courageous, positive asylum guidance by the BIA has helped fuel a human rights disaster and rule of law collapse at the border!
Perhaps, at long last, Garland has slowly started fixing the unconscionable and unnecessary dysfunction andintentionally ingrained institutional bias at EOIR. But, I’ll believe it when I see it!
Keep Up The Pressure
In the meantime, it’s critical that NDPA members: 1) keep applying for EOIR judgeships; and 2) ratchet up the pressure and demand the removal of all unqualified Immigration Judges and Appellate Immigration Judges who are undermining sound scholarship, due process, fundamental fairness, and human dignity at EOIR!
Human rights matter! Individual rights matter! Immigrants’ rights matter! Good judges matter!
Today, we are surrounded by too many bad judges, at all levels of our justice system, who reject the first three in favor of warped far-right ideologies, dangerous myths, and disregard for human dignity. The existential battle to get good judges into our system has begun. And, Immigration Courts are the primary theater of action!
Ran Abramitzky Professor of Economics and the Senior Associate Dean of the Social Sciences at Stanford University PHOTO: Stanford.eduProfessor Leah Pratt Boustan Economist Princeton University PHOTO: Princeton WebsiteMichael Luca Lee J. Styslinger III Associate Professor of Business Administration Harvard Business School PHOTO: has.edu
The reality is that immigration debates are often driven more by feelings than facts. And there is often disagreement about basic facts — such as how immigration has evolved over time, how successful immigrants become once they enter the United States and how they affect the communities they enter. The problem is, in part, a lack of accessible empirical evidence on the topic.
Enter “Streets of Gold: America’s Untold Story of Immigrant Success,” a book by economic historians Ran Abramitzky and Leah Boustan that seeks to set the record straight, using an economics tool kit and a treasure trove of data. Their mission is twofold. First, to offer a data-driven account of the history of American immigration. Second, to provide guidance into what research suggests about the design of immigration policy.
The book reflects an ongoing renaissance in the field of economic history fueled by technological advances — an increase in digitized records, new techniques to analyze them and the launch of platforms such as Ancestry — that are breathing new life into a range of long-standing questions about immigration. Abramitzky and Boustan are masters of this craft, and they creatively leverage the evolving data landscape to deepen our understanding of the past and present.
In contrast with the rags-to-riches mythology, a more systematic look at the data shows that low-income immigrants do not tend to catch up to nonimmigrant income levels in their lifetimes. Instead, financially successful immigrants tend to come from more privileged backgrounds. To name a few: the authors point out that the father of Tesla chief executive Elon Musk “co-owned an emerald mine.” EBay founder Pierre Omidyar’s “father is a surgeon who worked at Johns Hopkins University,” and his “mother has a PhD in linguistics.” Google co-founder Sergey Brin’s “father is a professor of mathematics,” and his “mother is a NASA scientist.” Looking at how many companies have been led by high-skilled immigrants, I wonder how much more innovation we are missing out on by not further opening our doors to the world’s talent. Yet these are hardly tales of huddled masses.
The case that lower-income and lower-education immigrants also meet with success rests on assessing not only the fates of immigrants themselves but also those of their children and their children’s children. As it turns out, Abramitzky and Boustan write, “children of poor immigrants from nearly every country in the world make it to the middle of the income distribution.” Immigrants from mainland China, Hong Kong and India do especially well.
The book debunks myths that immigrants dramatically increase crime and displace U.S.-born workers. Much of this work focuses on natural experiments in which sudden shocks to immigration levels have allowed for a better understanding of cause and effect. For instance, the authors point to the 1980 Mariel boatlift, which brought an influx of Cuban immigrants to the United States, especially to Miami, virtually overnight. The surge of low-income immigrants did not lead to large spikes in unemployment for U.S.-born workers. Low-skill immigrants have a history of taking jobs that would otherwise be unfilled or filled by machines. As companies around America were rushing to automate operations, the influx of Cuban immigrants to the Miami area slowed this process, and jobs went to people rather than to machines. Compared with the rest of the country, businesses in high-immigration areas have access to more workers and hence less incentive to invest in further automation.
This has implications for today’s immigration debates: The United States is expected to face a dramatic labor market shortage as baby boomers retire and lower birthrates over time result in fewer young people to replace them. Increased immigration is one approach to avoiding the crunch. Notably, the other way to avert this crisis is through further automation, enabled by rapid advances in artificial intelligence. Immigration policy will help shape the extent to which the economy relies on people vs. machines in the decades to come.
Immigration is, of course, about more than economic activity. Part of its beauty is the cultural richness and diversity that it brings. A multicultural society is greater than the sum of its parts. Miami is exciting not because of assimilation but because of the culture that its diverse population has created. It’s a city where you can find croquettes and Cuban coffees as easily as pizza and burgers. There is a rich history of immigrants bringing new cuisines, which are then adopted and adapted throughout the United States, a journey that can be seen in the evolution of Italian American food.
Drawing on the research, Abramitzky and Boustan weigh in on a number of hot-button policy issues: For instance, should the United States focus on encouraging high-education immigration? They conclude that “policies designed to deter less-educated immigrants from entering the United States are misguided.” Discussing the border wall, they argue that “no one wins from the border fencing policies.” And on the 1.5 million undocumented immigrants who arrived as children, they make a full-throated argument in favor of “providing work permits and a path to citizenship,” noting that “the barriers that undocumented children face are stumbling blocks of our own making.” On this last point, it is hard to disagree. Our treatment of undocumented children is a stain on our nation.
In the end, the authors offer an optimistic message: “Immigration contributes to a flourishing American society.” In a rapidly evolving world, Abramitzky and Boustan urge us to take “the long view, acknowledging that upward mobility takes time, and is sometimes measured at the pace of generations, rather than years.”
Read the complete review at the link. It contains Luca’s own family immigration story.
The research highlighted by this book clearly refutes the many negative myths about migrants upon which the Trump GOP’s “campaign of hate and misinformation” is based.
But, unfortunately, I wouldn’t expect truth about immigration — no matter how compelling and well-documented — to change many minds on the far right. As Luca says: “The reality is that immigration debates are often driven more by feelings than facts.” Sadly, hate, fear, racism, resentment, and intolerance are “powerful feelings.”
It’s going to take a combination of political power, courage and talent to exercise it boldly, education, and better values from the upcoming generations of younger Americans to overcome White Nationalism and its pernicious effects. I have to hope that there is time for the “long view” and our “better angels” to win the future.
“Tough noogies, ladies, suck it up and accept your fate,” say Federal Judges Southwick, Jones, and Oldham of the 5th Cir! Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsNo “particular social group” here says 5th Circuit Judge Southwick and his buddies Jones and Oldham. Just a little “good old fashioned trial by ordeal.” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Toxic Trio of “America’s Worst & Most Cowardly Judges” sticks it to Salvadoran refugee woman who survived domestic violence in country where femicide is rampant and uncontrolled by corrupt and inept government.
Lopez Perez v. Garland, 5th Cir., 06-02-22, published
BEFORE:Edith Jones (Reagan), Andrew Oldham (Trump), and Leslie H. Southwick (Bush II) Circuit Judges
OPINION: Judge Southwick
Lopez-Perez argues here that the IJ erred under Matter of A-R-C-G- by concluding that she had not established a nexus between her persecution and her social group. Further, she argues that the IJ incorrectly decided that the government of El Salvador was willing and able to protect her.2 These issues were identified in her Notice of Appeal and are preserved for our review here.
It is true that the IJ concluded that Lopez-Perez had not demonstrated the requisite nexus and further that she had not shown that the government was unable or unwilling to help her. Although the IJ’s analysis was cursory, we nonetheless conclude that his decision must be upheld because remand would be futile. Jaco, 24 F.4th at 406. The IJ intimated that Lopez-Perez’s proffered social groups — “Salvadoran women in domestic relationships who are unable to leave; or Salvadoran women who are viewed as property by virtue of their position in a domestic relationship” — were cognizable.
2 Lopez-Perez also argues for the first time that we should remand to the IJ for consideration in light of intervening decisions in Matter of A-B-, 27 I. & N. Dec. 316 (Att’y Gen. 2018) and Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018), aff’d in part, rev’d in part sub nom. Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020). We decline this invitation. In addition to the fact that this argument was not raised in her Notice of Appeal, Matter of A- B- has been overruled, see A-B- III, 28 I. &. N Dec. 307 (Att’y Gen. 2021), and this court specifically rejected Grace in Gonzales-Veliz, 938 F.3d at 233–34. See also Meza Benitez v. Garland, No. 19-60819, 2021 WL 4998678, at *4 (5th Cir. Oct. 27, 2021) (explaining this Circuit’s rejection of Grace).
7
Case: 20-60131 Document: 00516340524 Page: 8 Date Filed: 06/01/2022
No. 20-60131
We have disagreed, holding that circularly defined social groups are not cognizable. See id. at 405; accord Gonzales-Veliz, 938 F.3d at 226. Indeed, the social groups identified in Jaco are nearly identical to those claimed by Lopez- Perez: “Honduran women who are unable to leave their domestic relationships . . . and Honduran women viewed as property because of their position in a familial relationship.” Jaco, 24 F.4th at 399. Because the IJ is bound to follow the law of this circuit on remand, he would be forced to conclude that Lopez-Perez’s social groups were not cognizable, thus ending the analysis. See In re Ramos, 23 I. & N. Dec. 336, 341 (BIA 2002) (noting that the BIA is “unquestionably bound” to follow circuit court rulings).
We DENY the petition for review.
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It’s worthy of note that neither party challenged the propriety of the “particular social group!” So, this panel actually went beyond the issues before them to “stick it to” this abused refugee woman by gratuitously rejecting a well-established formulation of a “particular group” that has been the basis for granting protection in literally thousands of cases going back over two decades. (I note that even before A-R-C-G-, in Arlington the DHS Counsel routinely accepted this formulation of a “PSG” based on the so-called “Martin Memo” from DHS.)
Perhaps, that’s because even this panel acknowledged that the IJ’s “nexus analysis,” the actual ground of denial was “cursory.” In other words, this vulnerable women sought legal protection only to be shafted by poorly qualified Federal Judges at every level — the Immigration Court, the BIA, and the Fifth Circuit!
Here’s what Wade Henderson, then President and CEO of the Leadership Conference on Civil and Human Rights had to say about Judge Leslie H. Southwick in opposition to his confirmation:
Given the tremendous impact that federal judges have on civil rights and liberties, and because of the lifetime nature of federal judgeships, no judge should be confirmed unless he or she demonstrates a solid commitment to protecting the rights of all Americans. Because Judge Southwick has failed to meet this burden, we must oppose his confirmation.
Here’s what the progressive group “Suit Up Maine” had to say about Judge Andrew Oldham at the time of his confirmation:
ANDREW OLDHAM: Confirmed by the Senate on July 18, 2018. Collins voted YES; King voted NO. Nominated to be federal judge for the 5th Circuit Court of Appeals, Oldham is young, aggressively conservative, and has been involved in controversial litigation that emphasized ideology over the law. Oldham has worked on cases aimed at limiting reproductive rights, challenging the Affordable Care Act, challenging California’s law requiring good cause for concealed carry of firearms, and challenging habeas rights, all of which were ultimately unsuccessful. He defended Texas laws that limited women’s access to abortions that were ultimately determined by the Supreme Court to put “undue burden” on women’s right to choose. His challenge to the Affordable Care Act based on the “Origination Clause” of the Constitution was dismissed by the 5th Circuit for lack of standing. He attempted to barr the use of habeas corpus claims by two plaintiffs, but appeals courts allowed the claims. He also filed an amicus brief on behalf of multiple states (including Maine) using the Second Amendment to challenge a California law requiring good cause for concealed carry of firearms. The 9th Circuit ruled that the Second Amendment does not protect a right to concealed carry of firearms. Additionally, Oldham was involved in challenging the EPA’s greenhouse gas rules under the Clean Air Act, and he defended Texas campaign finance laws that were being challenged by multiple nonprofits and political committees under the First Amendment. His record of unsuccessful attempts to shape the law according to his own conservative ideology suggests that this bias is likely to accompany him to the federal bench.
All these fears, criticisms, and predictions of bias have proved to be all too well-founded in the mal-performance of this “Toxic Trio” of far right ideologues.
“Heard (not Amber) on the street:
“So the one BIA precedent in the past 20 years that actually recognized a PSG as valid isn’t worthy of Chevron deference, but A-B- was?!!”
“No more judicial restraint? Why is DOJ not changing position and or dropping these cases?”
“The 5th Circuit decision claims to direct all IJs in the 5th NOT to apply ARCG. And, most 5th Circuit IJs are high deniers anyway, so they don’t exactly need encouragement.”
“Perhaps better IJs could think of creative ways to work around the 5th’s decision. But, they don’t exist in the 5th Circuit in Garland’s EOIR.”
“It also shows the problems caused by Garland’s failure to “redo” the BIA and the IJ corps on “Day 1.” By now, it’s too late.”
Unqualified, far-right Federal Judges, egged on and supported by Stephen Miller and GOP State AGs, have basically usurped the power of Congress and the Executive to set immigration policies. There is lots of contempt for humanity, racism, misogyny, religious intolerance, and disrespect for true individual liberty driving their vile and illegal agenda.
The Constitutional rights of all Americans and the future of our democracy is at stake here. Will enough folks wake up and resist this takeover before it ‘s too late? TBD!
Just think how much better this system would work if Immigration Judges were getting guidance from the BIA to get these correct in the first place.
Also raises additional questions of why: 1) cases like this aren’t precedents; and 2) so-called “Temporary” Appellate Immigration Judges like Judge Gabe Gonzalez are “outperforming” most “permanent” BIA Judges?
“Like this gentleman of yore, AG Garland takes a rather “laid back” approach to the ongoing due process disaster in his Immigration Courts.”Scott Bixby National Reporter The Daily Beast
As the immigration court system strains under the weight of its biggest case backlog in history, the Biden administration is racing to fix it before it breaks entirely.
But breaking the system might be the only way to save it.
On the campaign trail, Joe Biden repeatedly vowed to create a “fair and humane immigration system,” replacing a faltering and faceless bureaucracy with swift due process. the Biden administration has since announced measures intended to alleviate the increasing pressure on a strained system once deemed “death penalty cases in a traffic court setting.”
But the sweeping, by government standards, tactics announced by the administration last month—which include adding as many as 100 new immigration court judges to the bench under Biden’s latest budget proposal, allowing asylum officers to evaluate some cases instead of those same overburdened judges, and encouraging Immigration and Customs Enforcement attorneys to clear “low priority” cases—may still not be enough to make a real dent in the backlog of cases that has reached its highest point ever.
“Trial dates that used to be scheduled out two, three, even five years sometimes, now don’t even get a hearing or a judge assigned,” said Michael Wildes, a second-generation immigration attorney who has represented high-profile clients from Pelé to Melania Trump. “My litigation team leader was in court this past Monday in Newark, where a judge there advised that she has cases open from the ’90s!”
One hundred new judges, Wildes said, “will be a drop in the bucket compared to the problem.”
“The current structure of the system is fatally flawed,” said Judge Dana Leigh Marks, the former president of the National Association of Immigration Judges who served for 35 years on the bench. “In the immigration removal system, any violation of law, no matter how minor and no matter how strong counterbalancing equities are, has resulted in placing people in removal proceedings. As long as that situation persists, it would be reasonable to anticipate that the court will be unable to clear its backlog or stay current.”
Marks, who coined the “traffic court” description of the immigration legal system, joined nearly a dozen other leading figures in the immigration law space in telling The Daily Beast that the long-term solution to the backlog of cases pending before immigration courts lies not in hiring more judges, but in removing the courts from the Department of Justice’s jurisdiction entirely.
“The cases are growing in complexity, the average judge is less experienced than ever, and every new surge of filings results in a new prioritization system imposed on the courts,” said David Bier, a research fellow with a focus on immigration at the Cato Institute and an expert on the immigration legal system, who said that even doubling the number of judges, as Biden once promised, wouldn’t be sufficient to stop the growth in the backlog.
“Staffing matters,” Bier said, “but the courts need structural reforms to improve their efficiency.”
With a little more than six weeks until the end of Title 42, the much-maligned public health order that has effectively barred asylum admissions at the U.S. southern border since the beginning of the coronavirus pandemic in March 2020, the administration is bracing for a massive uptick of crossings at the U.S. southern border.
That surge—estimated by the Department of Homeland Security to reach as many as 18,000 people apprehended at the U.S.-Mexico border a day—will further heap cases on top of the largest backlog in immigration cases in history, now at 1.7 million cases and counting. That’s more than double the number of pending cases half a decade ago.
The Biden administration has taken steps to reduce the pressure on immigration judges to reduce the backlog at the expense of due process, eliminating a Trump-era requirement that judges clear at least 700 cases per year and requesting that more than 80 percent of a requested budget increase for U.S. Citizenship and Immigration Services go towards caseload and backlog reductions.
But increasing the number of immigration judges by 15 percent, as Biden did in his first year in office, has yet to change the stalled pace of case clearance. The estimated processing time for asylum cases—which make up roughly one in four cases in the backlog—is now at longer than 63 months, according to U.S. Citizenship and Immigration Services.
“It’s basically a big mess,” summed up Jason Dzubow, an immigration attorney in Washington, D.C., “and so far, throwing more immigration judges at the problem has not reduced the backlog.”
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Read Scott’s full article at the link.
One could tire of saying the same things over and over. But, with “Team Garland” the obvious becomes the unattainable.
White Nationalists Jeff“Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr more than doubled the number of IJs while tripling the already out of control backlog.
As every expert told the Biden Administration from the “git go,” more judges without drastic personnel changes and major structural, procedural, “cultural,” attitude, and quality control reforms won’t solve the problem. Indeed, all empirical indications are that it will make things worse!
While Garland hasn’t accomplished much in his time in office, he did prove the truth of the latter statement. While increasing the number of IJs by a modest 15%, he has built new backlog at the fastest rate ever, with more than 1.8 million pending cases!
But, that’s not all folks. Even in the “garden days” of EOIR “off docket” cases were an issue. Now, following four years of “maliciously incompetent” Trump regime meddling with EOIR, I’ve got to believe that there are thousands, if not hundreds of thousands, of “off docket” cases floating around the bowels of EOIR, maybe never to be heard of again. So, it’s almost certain that EOIR’s “official numbers” (ask TRAC experts about the reliability of EOIR stats) understate the real scope of the problem.
One essential reform that was needed right off the bat that Garland ignored was better judges, not necessarily more judges!It should be obvious, even to someone as willfully blind as Garland, that the Sessions/Barr program of “packing” the BIA and the Immigration Courts with judges who lacked immigration and human rights expertise, were biased against asylum seekers, would “go along to get along” with stomping due process and immigrants’ rights, or all of the foregoing was a prescription for disaster.
What “moves” a system is expert, “practical scholar” judges, operating with some independence and courage, who can recognize the many pending grantable cases on the docket, also identify those that don’t belong on the docket, group them using “practical precedents” on what a successful case looks like, and motivate, or if necessary cajole or force the parties to get together and complete these cases. Many of them could be completed, without appeals, on “short dockets” or returned to DHS for completion.
Then, the courts could concentrate on the much smaller number of cases that actually have issues needing litigation and requiring expert decision-making.
Instead, the EOIR system, from top to bottom, screws around trying to come up with specious ways of limiting relief, avoiding jurisdiction, creating procedural and evidentiary hurdles, or denying grantable cases. Additionally, gimmicks like “Aimless Docket Reshuffling” and “expedited dockets” are mis-used to “max out” the number of in absentia orders. But, as many of those latter must be reopened, some only after protracted litigation all the way up to the Courts of Appeals, that only adds to the chaos, false narratives, and squandered resources. Not to mention that it makes the entire system chronically unfair — a parody of justice!
There is absolutely no reason why Garland shouldn’t have installed a merit-based “re-competition” system for many of the judges hired or promoted during the Trump regime — starting with the precedent-setting BIA — a gang of “Dr. Nos and Don’t Buck the Party Liners” if I’ve ever seen one!
There are plenty of “other” attorney positions in the DOJ or elsewhere in the Executive branch for attorneys who can do certain types of legal work, but aren’t “best qualified” to be Immigration Judges under today’s conditions. IJs are DOJ attorneys in the so-called “excepted service;” they certainly are not entitled to “life tenure” in any particular attorney position. At most, those who aren’t selected after merit re-competition could expect “reassignment” to another government attorney position at the same pay. Happens all the time, particularly at the DOJ!
A merit selection system for Immigration Judges at both the trial and appellate levels requires substantial outside expert participation. That’s a marked change from the opaque, highly bureaucratic, too often “insider tilted” system used by DOJ and EOIR.
Fortuitously for Garland, there are good “models” out there for such a merit system that could be “tweaked” for EOIR. The DC Courts, U.S. Magistrate Judges, and U.S. Bankruptcy Judges merit-selection systems are among them. Sadly, however, Garland has been “asleep at the wheel” as hisbroken “court” system veers off the road and goes down the embankment.
It’s not just immigrant justice that is dying here. While Garland and his lieutenants might choose to be “in denial,” the Immigration Courts are the “retail level” of today’s American justice system. When they finally give way and crumble, as they surely will do without Congressional intervention or better-performing Attorney General, the rest of our legal system is likely to come crashing down with them.
But, you’ve heard it all before on Courtside. Just tragic for our nation that the right folks aren’t paying any attention while there is still time to rescue the system.
EOIR Announces Appointment of Mary Cheng as Deputy Director
FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Mary Cheng as the agency’s Deputy Director. Judge Cheng has served EOIR since 2009, including as a Deputy Chief Immigration Judge for the past five years.
“Judge Cheng brings a welcome combination of experience and expertise, preparing her for certain success as EOIR’s deputy director,” EOIR Director David L. Neal said. “Her experience on the immigration bench, her expertise as a managing judge, and her appreciation for the view from both counsels’ tables perfectly position her to help lead the agency to a reinvigorated commitment to our mission and to public service.”
As Deputy Director, Judge Cheng will assist Director Neal in supervising and managing all EOIR components, and developing and implementing agency policies and short- and long-term strategies.
Since April 2021, Judge Cheng has served as the Regional Deputy Chief Immigration Judge for the Eastern Region at EOIR. She previously served as a Deputy Chief Immigration Judge from 2017 to 2021, and she was the Acting Principal Deputy Chief Immigration Judge from August 2020 to February 2021. Judge Cheng has also served in the New York Immigration Court both as an Assistant Chief Immigration Judge from 2015 to 2017, and as an Immigration Judge from 2009 to 2015. Before joining EOIR, she served as Assistant Chief Counsel for the Department of Homeland Security, Immigration and Customs Enforcement, from 2002 to 2009; and before that, she practiced immigration law in New York from 2000 to 2002. Judge Cheng received her Bachelor of Arts from New York University and a Juris Doctor from the New York Law School. She is a member of the New York State Bar.
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Judge Cheng had a 71.5% asylum grant rate while on the bench in NYC. That makes her an “outlier” (in a good way) among EOIR HQ “honchos” with significant Immigration Court experience.
Judge Cheng spent two years in the private practice ofimmigration law, albeit several decades ago, as well as serving as a JLC at the NY Immigration Court and an ICE prosecutor. So, she has a more “balanced perspective” on the system than many in EOIR.
Interestingly, Judge Cheng’s record on asylum cases is the “inverse” of the nationwide rate, where 2/3 of the asylum cases are denied and many IJs disgracefully reject almost every asylum case coming before them. So, she knows the system is broken, biased, unfair, and unprofessional!
The question is whether she will use her knowledge and skills to stand up for due process and fair treatment of asylum seekers? Or, will she become another in the long line of EOIR “go along to get along bureaucrats” — willing to sacrifice immigrants’ lives for job security and career advancement?
Hopefully, Judge Cheng will implement some “attitude changes” in an agency still far too committed to the Sessions/Barr “culture of denial” and to misusing, abusing, and mismanaging the Immigration Courts as a “deterrent” — carrying out Administration enforcement “priorities” —rather than acting as an independent court system using “enlightened practical scholarship” to guarantee due process and fundamental fairness for the individuals coming before it. EOIR has lost sight of its mission and Garland doesn’t seem interested in or capable of changing that.
As for the “certain success,” predicted by Director Neal, that’s been elusive for some previous Deputy Directors. Three previous Deputies have gone on to become EOIR Director: The late Kevin Rooney, Judge Kevin Ohlson, and the late Juan Osuna. But, “success” in an organization in failure that lacks a dynamic plan for long overdue fundamental personnel, procedural, and structural reforms looks like a tall order. It’s probably“Mission Impossible!”
The only true measure of “success” is whether the community that EOIR is supposed to serve comes to view the courts as fair, humane, and professional. That depends on changing the results of EOIR’s anti-asylum, often anti-immigrant “assembly line” approach to justice and its chronic, backlog-building“Aimless Docket Reshuffling” produced by attempting to please DOJ politicos at the expense of justice. Bureaucratic metrics and bogus DOJ and Administration political goals and agendas are meaningless in the “real world.”
What kind of “short and long-term strategies” will work in a struggling “court” system plagued by a burgeoning 1.8 million case backlog, endemic “Aimless Docket Reshuffling,” an appellate body stuck in reverse, a byzantine “agency management” structure, institutionalized “worst practices,” and too many judges who were the product of a poor selection process and inadequate training? There are some measures that potentially could succeed. But, “Team Garland” has pointedly ignored them with predictably bad consequences.
No one person can change the disastrous trajectory of EOIR. But, someone willing to take risks and give due process and fundamental fairness a chance could make a difference in the lives of the most vulnerable among us. Could Judge Cheng be that person? We’ll see.
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
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.
NIJC: On Friday (4/8) we learned from the government that it would not file an appeal in AsylumWorks v. Mayorkas. This means, happily, that the EAD Rules that delayed and in some cases denied access to EADs for asylum seekers are fully vacated. The vacatur applies to both the 30-day adjudication rule and the larger rule that had more than a dozen changes to EAD eligibility for asylum seekers.
NY EOIR Asks ICE to Submit PD Stance 3 Days Before Hearings
EOIR: In an effort to reduce our interpreter non-usage and our continuance rates, the New York – Federal Plaza Immigration Court has asked DHS that PD positions be provided to the court on matters scheduled for a hearing at least three days before the hearing. This would allow cancellation of the interpreter order without cost to the court, and would permit another previously scheduled case to be advanced into the open hearing slot. In addition, the court is endeavoring to identify cases already scheduled which are likely to be granted PD based upon DHS guidelines. We have requested DHS’s assistance in this endeavor. [It is unclear whether other courts will request the same.]
NYT: The C.D.C. finally announced at the beginning of April that it would lift its public health border restrictions on May 23, around the time of the year when migration typically increases. But this past week, the issue of Title 42 flared up again as Senate Republicans and some Democrats in Congress held up Covid funding in an effort to protest the administration’s decision to lift the health rule and tensions over the issue flared in both parties. See also The Democratic revolt over Biden’s border policy.
Hill: Sens. Thom Tillis (R-N.C.) and Dick Durbin (D-Ill.) told The Hill that they want to bring together a group of senators interested in trying to revive immigration discussions — a perennial policy white whale for Congress — after a two-week recess.
NPR: Visitations at federal and state prisons have largely resumed. Last year, for example, the Washington state Department of Corrections determined it was safe to reinstate visitations. But those who want to talk to loved ones in ICE detention must still rely on old-fashioned phone calls or video.
WaPo: Although the Florida Keys have been an entry point for refugees fleeing communist Cuba since the 1960s, officials say the increase in arrivals of migrants by boat represents a shift in migration patterns. Since the start of the year, more than 800 Haitians have landed in the 113-mile-long Florida Keys, made up 1,700 small islands. Two of the landings occurred in Ocean Reef, an exclusive gated community near Key Largo that is home to some of nation’s wealthiest residents, officials said.
WaPo: Cuban migrants are coming to the United States in the highest numbers since the 1980 Mariel boatlift, arriving this time across the U.S. southern land border, not by sea.
AP: Texas Gov. Greg Abbott on Wednesday delivered new orders along the U.S.-Mexico border and promised more to come as former Trump administration officials press him to declare an “invasion” and give state troopers and National Guard members authority to turn back migrants.
Reuters: U.S. appeals court on Wednesday said federal agencies properly withheld documents related to how they vet applicants for immigration benefits with the aim of uncovering possible terrorist ties, reversing a judge who ordered their disclosure.
Law360: The Third Circuit declined to halt the deportation of a man from India claiming he suffered political persecution there, reasoning that the immigration judge was correctly skeptical of his inconsistent accounts of the violence he claimed to have experienced.
CA5: [W]hether an applicant’s subjective belief that authorities would be unwilling or unable to help them is sufficient for asylum eligibility when paired with country condition evidence supporting that belief, notwithstanding that the underlying events do not support that conclusion. We think not… When she checked in, the police informed her “that the process would take at least two weeks.” She fled before those two weeks expired, and there is no evidence of what happened with the claim. Thus, the evidence supports the BIA’s finding that Sanchez-Amador “successfully reported one incident with the gang member to the police, but did not pursue the issue.”
LexisNexis: “Petitioner Jose Santos Boch-Saban, a citizen of Guatemala, seeks review of a Board of Immigration Appeals decision dismissing, as untimely, his appeal of an immigration judge’s order denying, as time and number barred, his motion to reopen and dismiss. We VACATE the Board’s decision and REMAND the case for consideration in the first instance of the issue of equitable tolling.”
DHS: Al Otro Lado v. Mayorkas is a lawsuit that relates to the U.S. government’s use of “metering” at land ports of entry on the U.S.-Mexico border. The Court in this lawsuit issued a Preliminary Injunction(PI) prohibiting the U.S. government from applying a rule known as the “third-country transit rule”(TCT)to certain people who were subject to “metering” before the rule took effect on July 16, 2019.
AP: Pennsylvania State Police settled a federal lawsuit alleging troopers routinely and improperly tried to enforce federal immigration law by pulling over Hispanic motorists on the basis of how they looked and detaining those suspected of being in the U.S. illegally, officials announced Wednesday.
NYT: Clients paid fees up to $30,000 as part of the yearslong scheme, an affidavit said. Some applications falsely claimed the clients had been abused by their spouses, prosecutors said.
Law360: The city of San Antonio, Texas, has agreed to pay the state $300,000 to settle both allegations lodged by the state’s attorney general that it was violating the state’s “anti-sanctuary city law,” and a subsequent lawsuit seeking to remove the police chief from office for the alleged violations.
Law360: People who were banned from the U.S. under now-defunct Trump-era travel restrictions urged a California federal judge to order the Biden administration to revisit their denied visa applications, saying the administration’s attempts to redress the harm don’t go far enough.
Law360: A D.C. federal judge extended the stay of his order directing the State Department to issue more than 9,000 diversity visas while the Biden administration appeals to the D.C. Circuit, but he unfroze his directive for the department to update the technology for processing the visas.
Law360: The House Judiciary Committee voted to advance a bill that would eliminate the Immigration and Nationality Act’s per-country cap for employment-based visas and raise similar caps on family-based visas, aimed at trimming immigration backlogs.
AILA: On 4/1/22, CDC released an order to terminate its Title 42 public health order on 5/23/22. The document assesses the current state of the COVID-19 pandemic, provides legal considerations, and describes plans for DHS to mitigate COVID-19 and resume use of Title 8. (87 FR 19941, 4/6/22)
AILA: On 3/11/22, CBP issued a memo to its Office of Field Operations stating that noncitizens in possession of a valid Ukrainian passport or other valid Ukrainian identity document, and absent national security or public safety risk factors, may be considered for exception from Title 42.
AILA: USCIS is issuing individual notices to certain TPS Syria beneficiaries whose applications to renew Form I-766 are pending. The notices extend the validity of their EADs until September 24, 2022. Guidance on filing Form I-9 is available.
DHS: The U.S. Customs and Border Protection (CBP) Unified Immigration Portal (UIP) provides agencies involved in the immigration process a means to view and access certain information from each of the respective agencies from a single portal in near real time (as the information is entered into the source systems). CBP is publishing this Privacy Impact Assessment (PIA) to provide notice of implementation of the UIP and assess the privacy risks and mitigations for the UIP.
USCIS: U.S. Citizenship and Immigration Services (USCIS) today announced a policy update to adopt a risk-based approach when waiving interviews for conditional permanent residents (CPR) who have filed a petition to remove the conditions on their permanent resident status.
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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
The issue in Sanchez-Amador is whether a reasonable person in her position would believe that the Government of Honduras is “unwilling or unable” to protect her. On the facts set forth in the court’s decision, any reasonable person in her position would hold such a objectively reasonable view. Therefore asylum should have been granted.
The Honduran Government is so totally corrupt, inept, and disinterested in protecting its citizens, particularly women, that recent past “President Juan Orlando Hernandez [is] on the United States’ Corrupt and Undemocratic Actors list, under Section 353 of the United States–Northern Triangle Enhanced Engagement Act.” https://www.state.gov/u-s-actions-against-former-honduran-president-juan-orlando-hernandez-for-corruption/
Ricardo Zuniga, the U.S. Special Envoy to Central America recently said: “‘All we’re trying to do now is halt the slide’ of democracy and accountability, Zúniga said in an interview with The [L.A.] Times, ‘so that we can have some place to build from.’” https://apple.news/A9FpzsjRAQ2OoAyQZzHZm1A.
In other words, any a semblance of the rule of law and honest, minimally effective government in the Northern Triangle has long disappeared. Conditions are rapidly getting worse, rather than better. Conditions are so bad, that a better Administration or a better BIA could probably establish a “rebuttable presumption of failure of state protection in the Northern Triangle,” thus properly shifting to the DHS the burden of establishing, against all odds, that “state protection” against gangs and other basically uncontrolled third-party actors would actually be effective in a particular case.
This common sense action would also facilitate rapid, efficient, consistent, and correct approval of many credible, valid asylum claims now stuck in the endless, largely self-inflicted, backlogs at the Asylum Office and in Garland’s dysfunctional courts, not to mention at the border following two years of illegal suspension of our asylum laws. That’s as opposed to the unseemly “Institutionalized Refugee Roulette” now being played by Garland and his subordinates.
According to the Supremes in Cardoza-Fonseca and the BIA itself in Matter of Mogharrabi, asylum law is supposed to be generously applied to grant protection even where persecution, although reasonably possible, is significantly less than likely. But, in Garland’s dysfunctional “courts,” the current reality for vulnerable asylum seekers has moved far, far away from those supposed “norms.”
Although most asylum applicants come from nations with well-established records of serious endemic human rights abuses, “asylum denial rates” at EOIR range from 10% or less to a beyond outrageous 98% or more denials! Cases with basically the same facts might be routinely granted in one courtroom while being uniformly denied, usually for specious reasons, in the next.
Moreover, while the overall nationwide grant rate of around 37% appears unreasonably low but perhaps still within the outer bounds of “plausibility,” most of those grants are “concentrated” in a relatively small number of Immigration Courts, basically in the Northeast and in California. A disturbing number of IJs and courts are allowed, perhaps even encouraged, by Garland and his denial-oriented, Trump-holdover BIA to establish “asylum free zones.” In other words, Garland has looked the other way while some of “his courts” have basically become de facto “asylum death squads.”
Back to Ms. Sanchez-Amador. Under the circumstances shown by Ms. Sanchez-Amador, a “reasonable woman” would not expect any effective protection from the Honduran Government. The respondent has shown that her “expectation of no protection” was “fulfilled” in this case.
The respondent credibly testified that a gang member said she had a week to either pay him money or become “his woman,” join the gang, and have involuntary sex with him, that is, he threatened to rape her. When she dutifully reported this to the police (despite their well-deserved reputation for indifference to attacks on women), she was told that they would investigate but that it would take two weeks, and offered her no other protection or options in the interim.
In other words, in response to an imminent, credible threat of harm, the police told the respondent that they would do nothing to stop the harm that would be inflicted upon her in a week. By the time the police “investigated,” assuming they ever did which seems doubtful in light of conditions in Honduras, the respondent would be either extorted or raped and forced to join a gang against her will. While police in Honduras might have a well-deserved reputation for corruption and ineffectiveness, gangs, on the other hand, have a reputation for being ready, willing, and able to carry out their threats against women, usually with impunity.
Elementary asylum law tells us that it is neither reasonable nor required that a refugee wait to actually be persecuted before fleeing to safety. That’s exactly what a “well-founded fear” is!
Yet a panel of male, right-wing judges of the Fifth Circuit nonsensically and disingenuously concludes that “one would be hard-pressed to find that the authorities were unable or unwilling to help her [because] she never gave them the opportunity to do so.” Poppycock!
The police failed to offer the respondent any semblance of effective protection. Given the conditions in Honduras, and the credible threats the respondent had received, a reasonable woman in the respondent’s position would flee to safety at the first opportunity rather than waiting for the gang to carry out its credible threat of harm and for the police to, perhaps, but likely not, investigate after the fact!
Indeed, it’s no stretch to say that under the facts of this case, NO reasonable woman would have remained in Honduras if able to escape. Moreover, NO reasonable factfinder would conclude that she lacked a reasonable possibility of persecution there!
The panel judges have perverted, perhaps intentionally, the criteria for asylum, the standard for review, and misconstrued the record to deny legal protection to this refugee woman. But, there is an even deeper problem here. And, it goes to Attorney General Garland and his mismanagement of the entire, broken Immigration Court system.
I daresay that NO asylum expert would have handled this potentially perfectly grantable case the way this Immigration Judge and the BIA did. This whole process documents an ongoing, biased, unprofessional, designed-to-deny asylum system that unfairly attacks and threatens “the most vulnerable among us” — targeting women of color in a particularly racist-misogynistic way!
I hope that this particular example of injustice, inhumanity, and unprofessionalism at all levels of the judiciary isn’t what awaits long suffering asylum seekers if and when the Administration finally lifts the illegal “Title 42 Blockade/Charade” on May 23. But, I have little reason for optimism.
Beyond long overdue reversals of several Sessions/Barr bogus anti-asylum, anti-immigrant “precedents,” neither Garland or Mayorkas has shown much inclination to actually get asylum law right. Nor have they empowered or employed the human rights and due process experts who could lead them out of the wilderness in which their entire “denial and deterrence-oriented” system now wanders.
Perhaps ironically, the all-too-often lawless Fifth Circuit refuses to acknowledge even those modest actions by Garland to correct the law, notwithstanding the supposed “great deference” they claim to show the Executive in the area of immigration. Like much that the Fifth Circuit does these days, that “deference” appears reserved for White men and is not applied to vindicate the rights of “persons” who happen to be migrants, women, or people of color.
“Dred Scottification” of “the other” is NOT a legitimate legal theory. No, it’s part of the “anti-democracy activism” that threatens to destroy our legal system and take our nation down with it! ☠️
Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration JudgesHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Hon. “Sir Jeffrey” Chase reports:
The attached is the final “as filed” version of our latest brief in Chavez-Chilel v. Garland, in support of the motion for rehearing/rehearing en banc. This one is very “all in the family,” as Sue Roy is our counsel, Sue and I drafted the brief, and decisions from Miriam Hayward and Charles Honeyman are attached as exhibits.
There is also an amicus brief by law school professors, and joining NJ attorney Ted Murphy as petitioner’s counsel is Paul Hughes, who argued Kisor v. Willkie before the Supreme Court (as well a Nasrallah v. Barr, a Supreme Court victory in which we were amici).
Waves of migration through Mexico and Central America, and people who go missing, will increase in 2022 due to high levels of violence in the region, the International Committee of the Red Cross (ICRC) said.
Battle-scarred ghost town bears mute witness to Mexico’s drug wars
“In many countries, violence is wreaking more and more havoc, and that’s why there are more and more migrants,” ICRC representative Jordi Raich told Reuters in an interview Wednesday. “And it’s not a situation that is going to improve or slow down, not even in the years to come.“
Immigration authorities in Mexico detained 307,679 migrants in 2021, a 68% increase compared with 182,940 detentions in 2019, according to government data.
Shelters in Mexico were completely overwhelmed last year, filled with frustrated migrants unable to continue their journey to the United States, Raich said.
Many migrants get “stuck” along Mexico’s southern or northern borders, Raich said, where they face “enormous economic constraints” and are able to find only basic services.
The administration of Joe Biden has faced record numbers of migrants arriving at the southern border and has implored Mexico and Central American countries to do more to stem the wave.
Disappearances in the region have not slowed either, the Red Cross said in a report released Thursday. Mexico recently surpassed 100,000 people reported missing in the country.
In El Salvador, 488 missing person cases remain unsolved, and in Guatemala, the number of missing women rose to six a day, the Red Cross report said.
Raich said it will be difficult to respond to the root causes of migration immediately. A joint effort among countries like El Salvador, Guatemala and Honduras is necessary, he added.
“Migration is not going to stop,” Raich said. “If you try to prevent it or strictly regulate it, people start to pile up at the borders, which is happening in Mexico and other countries.”
Meanwhile, the Biden administration on Thursday rolled out a sweeping new regulation that aims to speed up asylum processing and deportations at the US-Mexico border, amid a record number of migrants seeking to enter the US.
The announcement of the new rule came as US officials are debating whether to end a separate Covid-era policy that has blocked most asylum claims at the border. The asylum overhaul could provide a faster way to process border crossers if the Covid order is ended.
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Read the full article at the link.
Cruelty, walls, detention, family separation, border militarization, expedited hearings — they aren’t going to stop human migration.We will be able to increase border deaths, expand the scope of “black market migration,” increase our “underground population,” and enrich human smugglers. Good policy?
Meanwhile, it’s obvious that the “disingenuous internal debate” on Title 42 has nothing whatsoever to do with public health and everything to do with whether continued illegal and immoral suspension of asylum protections at the border will prove politically advantageous to the Biden Administration. It won’t! It might, however, cost Dems support among progressives.
There is, of course, no known medical evidence that “single males” present a greater COVID threat than families! Indeed, there is no known medical evidence to suggest that any potential asylum applicant is a threat to the health and safety of the US.
The whole thing is a deadly farce! Why aren’t Hill Dems calling for oversight of Garland’s sitting by and watching while the law and ethics are pulverized around him? Or worse yet, what about his Department’s defense of abrogation of our laws? Believe it or not, we actually have asylum and protection laws on the books, duly enacted by Congress, although you’d never know it from Garland’s feckless performance!
Meanwhile, WashPost and other so-called “mainstream media” continue to hype stories about increased border pressure. So, continuing to violate asylum law is a viable alternative “strategy?” Give me a break! How is violating the law going to stop folks from fleeing deadly conditions in their home countries? It won’t, as the ICRC points out above!
What it will do, as also pointed out above, is kill more asylum seekers, subject them to rape, torture and other harm, enrich smugglers, and increase the extralegal population in the U.S.!
Blaine Bookey Legal Director Center for Gender & Refugee Studies @ Hastings Law Photo: CGRS website
It also will increase those waiting in vain at the Southern Border for the reopening of a legal asylum system that has abandoned them! In the words of one expert:
“The conditions are squalid,” said Blaine Bookey, the legal director of the Center for Gender and Refugee Studies at University of California, Hastings College of the Law, who led a team interviewing dozens of families waiting in Tijuana for the federal government to lift Title 42. “There is real lack of access to sanitation, medical care, adequate food, all of the real basic fundamental necessities.”
. . . .
“There have been some exceptions made for Ukrainians, which we’re happy to see, but the policy should be ended for everyone,” Bookey said. “There was never a public health justification, and there certainly isn’t now.” (WashPost, supra).
Meanwhile, back at the ranch, Sen. John Cornyn (R-TX) babbles nativist nonsense:
Sen. John Cornyn (R-Tex.) said at a committee hearing last week that the influx has “completely derailed” efforts to discuss improving legal immigration to the United States, which he said states such as Texas need to staff hospitals and fill jobs. Border states such as Texas and Arizona are bracing for higher numbers of unauthorized immigrants in coming weeks, he said.
“Rather than deter would-be migrants with weak asylum claims from taking the dangerous journey to the southwest border, the administration has rolled out the welcome mat and created new incentives to illegally immigrate to the United States,” he said at the March 15 hearing before the Senate Judiciary subcommittee on immigration, citizenship and border safety.
To my knowledge, neither Cornyn nor any of his other GOP nativist buddies have ever adjudicated an asylum application. Nor have they represented asylum seekers before the Asylum Office or in our broken Immigration Courts. So, how would that have any idea whether certain asylum claims are “weak” or not? They wouldn‘t!
Moreover, we haven’t had a functioning asylum system at our Southern Border for years. So, how would anyone know how many of the claims are “weak?” They wouldn’t?
Remarkably, apparently unknown to Cornyn and his scofflaw buddies, we actually have laws to deal with his concerns. When the legal system is “open for business” — which it isn’t now — those claiming asylum at the border are subject to “summary exclusion” by DHS officers. Their claims are then expeditiously reviewed by Asylum Officers for a “credible fear” of asylum. Those who don’t establish credible fear, subject only to cursory review by an Immigration Judge, can be immediately removed by DHS.
Historically, when the system was at least nominally functional, those “passing” credible fear have been turned over to the now dysfunctional Immigration Courts. Under Trump, these “parodies of courts” were “weaponized” into “asylum killing grounds.”
Sessions and Barr packed their non-independent “captive courts” with “judges” perceived to be “enforcement oriented” and “anti-asylum” — willing to skew the law and facts as necessary to deny and deport. This mess is “led” by an appellate body, the BIA, which contains some of the most notorious members of the “Asylum Deniers’ Club” — folks who got their appellate jobs under Barr specifically because as Immigraton Judges they denied almost every asylum case that came before them! In other words, even when there was some semblance of a legal asylum system, it was redesigned under Trump to be systemically unfair to asylum seekers, particularly women and applicants of color. For sure, racism and misogyny played into this unseemly scenario.
Remarkably, Garland has chosen to maintain this dysfunctional, biased, and broken system largely in the form it existed and with almost all of the same unqualified or questionably qualified “judges” he inherited from Session and Barr!
Our broken asylum system can’t and won’t be fixed without dealing head-on with the overarching problem — systemic anti-asylum bias, poor quality decision-making, grotesque inconsistencies, and beyond incompetent administration of our Immigraton Courts by the DOJ!
Remarkably, Garland’s proposed solution is yet another “designed to fail” gimmick — expedite cases in his broken and biased, anti-asylum system! So the solution to a defective court system, infected with anti-asylum bias and poorly qualified judges turning out defective decisions is to make it “go faster!” The new regulations also fail to deal with the huge due process issue of lack of competent representation in the asylum system, particularly the Immigration Courts. Come on man!
We don’t need over 500 pages of new regulations and sophomoric, alternate universe “time limits” for an agency that can’t even find its files! What we need is for Garland to do the job he was hired to do more than a year ago! That’s “clean house” at the Immigration Courts, bring in competent, fair judges who have experience in Immigration Court and are legitimate, well-recognized asylum experts — starting with a new BIA (save for their one qualified Appellate Immigration Judge Andrea Saenz, a Garland appointee).
Get expert judges, intellectual leaders, and competent judicial administrators into the broken Immigration Court system to provide coherent, practical asylum legal guidance and work with advocates, the Asylum Office, and DHS to get a functional and fair legal asylum system in place and operating smoothly and efficiently at the border. It should already be in place by now. That it isn’t, is entirely “on Garland!”
Then, with experts who actually are committed to fairly and impartially applying asylum law in place, we’ll see, for the first time, how many of the asylum claims are valid and how many aren’t! And, while we’re at it, we might find that many of the “legal” immigrants Texas and the rest of America needs are right there at our borders — just waiting for our legal system to do justice and admit them. Asylum seekers are seeking legal immigration! It the USG that’s acting “illegally” here!
