ICRC: “Migration is not going to stop. 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.”

Reuters reports:

https://www.theguardian.com/world/2022/mar/24/migration-violence-mexico-central-america?CMP=Share_iOSApp_Other

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.

. . . .

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

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.

How dishonest and unethical is the Biden Administration’s discussion of violating the law? (Do we actually have an Attorney General?) According to the WashPost, scofflaw Biden Administration officials actually are considering lifting Title 42 for families, but not for single males! https://www.washingtonpost.com/national-security/2022/03/24/border-biden-migrants-influx-pandemic/

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!

While the Administration has announced “new interim regulations” that would allow Asylum Officers to grant meritorious cases without going before Immigration Courts, the system still depends on “guidance,” supervision, and de novo review by the broken, biased, and dysfunctional Immigration Courts running amok under Garland. https://immigrationcourtside.com/2022/03/24/🏴☠%EF%B8%8Fno-surprise-boston-asylum-office-screws-🔩-maine-refugees-☠%EF%B8%8F-part-of-a-serious-national-anti-asylum-bias-largely/

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!

🇺🇸Due Process Forever!

PWS

03-26-22

🏴‍☠️(NO) SURPRISE! — Boston Asylum Office Screws 🔩 Maine Refugees ☠️— Part Of A Serious National Anti-Asylum Bias Largely Unaddressed By Biden Administration! — New “Interim Asylum Regs” Designed To Fail! — Instant Critical Commentary From “Courtside!”

“Screwed”
By Pearson Scott Foresman
Public Domain

https://www.pressherald.com/2022/03/23/report-on-boston-asylum-office-finds-disproportionately-low-acceptance-rates-bias-against-applicants/

Emily Allen reports for the Portland (ME) Press Herald:

LOCAL & STATE Posted 4:00 AM

INCREASE FONT SIZE

Report on Boston Asylum Office finds disproportionately low acceptance rates, bias against applicants

The office serving asylum seekers in and around Maine has the second lowest approval rate in the nation, according to a report by Maine immigrant advocacy groups.

BY EMILY ALLEN STAFF WRITER

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The Boston Asylum Office has the second lowest acceptance rate of any office in the nation, and granted asylum to only 11 percent of its applicants in 2021, according to a report by Maine legal aid organizations handling immigration cases and advocates for reform.

The report says the office that serves asylum seekers in and around Maine is plagued by bias and burnout, and that its low grant rate is “driven by a culture of suspicion” toward asylum seekers.

The process of seeking asylum in the United States begins with an application to U.S. Citizen and Immigration Services. Applicants must prove they are fleeing a country in which they previously suffered persecution or were at risk of persecution based on race, religion, nationality, membership in a particular social group or political opinion.

Applications go through asylum offices first, which can either grant asylum from the outset or refer an application to an immigration court for a judge to consider.

Jennifer Bailey, an attorney for the Immigrant Legal Advocacy Project and one of the report’s authors, said almost all asylum seekers she works with eventually obtain asylum status through immigration court, after failing to be granted asylum at the Boston Asylum Office. But the court process can take years, and, while they’re waiting, applicants aren’t able to access federal student aid, social services or educational opportunities. Even worse, they spend that time away from their families, who can still be at risk.

“It’s not uncommon for people’s (families) left at home to die while they’re waiting, or to be lost within the violence,” Bailey said.

Collaborating with the Immigrant Legal Advocacy Project on the report were the Refugee and Human Rights Clinic at the University of Maine School of Law, the ACLU of Maine and a visiting lecturer at Amherst College in Massachusetts who spent eight years waiting on a decision from the Boston Asylum Office and was ultimately denied in May 2021. Today, he and his family live in Canada.

During its first five years, the Boston office – which opened in 2015 and processes about 5,600 applications a year – granted roughly 15 percent of its asylum applications on average, the report states. Meanwhile, offices in San Francisco and New Orleans were accepting asylum requests at rates that were more than three times higher. Nationally, the acceptance rate from 2015 to 2020 was 28 percent, the report says.

The report acknowledged that asylum officers who approve or refer cases to court face a “complex and essential” list of responsibilities. Being overworked and having less time to consider cases often results in asylum officers sending more referrals to immigration court, said some former officers cited in the report.

Meanwhile, supervising officers play an “outsized” role in the asylum-granting process, according to the report. If an asylum officer recommends granting asylum and the supervisor disagrees, the officer could face retaliation in the form of more work or a negative performance evaluation, the report states.

PRESUMPTION OF FRAUD

The report’s authors contend that their research “strongly suggests” that Boston’s asylum office doesn’t consider applications from a neutral stance, “but rather presumes they must be fraudulent or pose a security threat.” Of 21 trainings for asylum officers mentioned in the report, 14 were focused on fraud detection. Former officers told the report’s authors that constantly hearing concerns about fraud and credibility made them think such problems were more prevalent than they were.

“They’re telling their story, which, no matter what, can involve this unimaginable trauma of torture and violence or sexual violence or death,” Bailey said of asylum seekers. “Put yourself in that position and imagine how hard it is to talk about the worst thing that’s ever happened to you in your life, and having this officer – who has the power to help you and your family – say ‘No, I don’t believe you.’”

According to the report, bias and skepticism in the office extend to certain countries. The Boston Asylum Office granted only 4 percent of asylum applications from the Democratic Republic of Congo from 2015 to 2020, even though the U.S. has acknowledged significant human rights violations in that country, including unlawful killings and torture, the report says. The office granted only 2 percent of its applications from Angola, another country where there is known abuse.

The Newark Asylum Office in New Jersey, which also serves some of New England, granted asylum to 17 percent of its applicants from Angola and 33 percent of its applicants from the Democratic Republic of Congo.

English-speaking applicants are nearly twice as likely to be granted asylum as non-English speakers, who are referred to immigration court 80 percent of the time, the report says. Asylum-seekers who can speak English are referred to immigration court just under 60 percent of the time.

. . . .

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

Read the rest of Emily’s fine article at the link.

I did lots of DRC cases over 13 years on the trial bench! Most had lawyers and were extremely well-documented. Often ICE didn’t oppose grants (prior to Trump).

In Arlington, with agreement from the parties, they were candidates for the “short docket.” Nearly all the DRC cases “referred” from the Arlington Asylum Office were granted upon “de novo” review in Immigration Court.

This is a prime example of how our asylum system seriously regressed under Trump and has not been fixed by Garland and Mayorkas! No wonder our Immigration Courts are hopelessly and unnecessarily backlogged with an astounding 1.6 million pending cases. Bad judging, systemic anti-asylum bias, lack of competence, and gross mismanagement by DOJ and DHS are taking a toll on democracy and humanity!

Pathetically and disingenuously, USCIS tries to blame their malfeasance and lack of competence on “the pandemic.” That drew one of the more perceptive public comments I’ve seen recently:

Pandemic restrictions didn’t create bias in other asylum offices – that’s a totally inadequate excuse.

For sure! Just like it’s a pretext for the elimination of our legal asylum system at the border that Garland disgracefully defends! Think that the “anti-asylum culture” problem ends with USCIS? Guess again?

Former Attorney General Jeff “Gonzo Apocalypto” Sessions was never bashful about sharing his White Nationalist, nativist, xenophobic falsehoods and myths about asylum seekers with his “captive” Immigration Judges. That’s right, for those not “in the know,” amazingly the “courts” that are supposed to provide expert legal precedents on asylum law and give a “fresh look” to those cases not granted by the Asylum Office aren’t “courts” at all as most Americans know them. They are run by the chief law enforcement official of the United States, the Attorney General, even though they are called “Immigration Courts.”

Sessions actually made the following statement, unsupported by any hard evidence, to a group of his wholly owned “judges” on October 12, 2017:

“We also have dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”

At the same time, he announced that he was, on his own motion and over the objection of the DHS and the applicant, “undoing” the leading BIA precedent recognizing gender-based harm as a ground for asylum. For a good measure, he also warned his supposedly, but not really, “fair and impartial judges” that he expected them to strictly apply precedent — HIS precedents, that is. In other words, start cranking out those asylum denials or your career might be in peril!

Some judges chose to resign or retire. Some kept on doing their jobs conscientiously, legitimately “working around” Sessions’s poorly reasoned and factually inaccurate anti-asylum precedents. Many, however, chose to “go along to get along” with the anti-asylum program — some happily (there were reportedly some cheers and applause when Sessions announced his cowardly assault on vulnerable refugee women of color), some not.

So clearly wrong and totally off-base was Sessions’s assault on asylum-seeking women, primarily those of color, that even the otherwise timid and reticent AG Merrick Garland had to reverse it during his first year in office and restore the prior BIA precedent. However, there has been no further guidance from the BIA on properly and generously applying this potentially favorable, life-saving precedent.

President Biden charged Garland and Mayorkas with developing regulations on gender-based claims by October 2021. Obviously, that date has come and gone with the regulations still MIA!

Think that promoting a culture of xenophobia, racism, and overt bias has no effect? During the Trump Administration, although conditions for refugees, and particularly for refugee women, worsened over that time, the Immigration Court asylum grant rate fell precipitously — from more than 50% during the mid-years of the Obama Administration to only 23% during FY 2020, the last full year of the Trump regime.

The Immigration Courts and especially the BIA were “packed” by Sessions and his successor “Billy the Bigot” Barr with questionably qualified “judges” perceived to be willing to do their nativist bidding. Inexplicably, Garland has been unwilling to “unpack” them, despite these being DOJ attorney positions in the “excepted service,” NOT life-tenured Federal Judges.

Consequently, life or death asylum decisions today depend less on the legal merits of an applicant’s case than they do on the particular Immigration Judge assigned, the composition of the BIA “panel” on appeal, the Federal Circuit in which the case arises, and even the composition of the panel of U.S. Circuit Judges who might review the case.

They also depend on whether the applicant is fortunate enough to have a lawyer (not provided by the USG). Any unrepresented, often non-English-speaking asylum seeker has little or no chance of negotiating the intentionally arcane, opaque, unnecessarily hyper technical, and “user unfriendly” asylum system in Immigration “Court” without expert help.

Almost every week, the Circuit Courts of Appeals publish major decisions pointing out elementary legal and factual errors by the BIA’s “deportation railroad.” But, that’s just the tip of the iceberg! The vast majority of life-threatening errors by the Immigration Courts go uncorrected as the applicants are unable to pursue their cases to the Courts of Appeals or are “duressed” by DHS detention in substandard conditions into giving up viable claims.

Check out some of these denial rates by ten of Barr’s BIA appointees who previously served as Immigration Judges. Those judges are listed with their asylum denial rates, according to Syracuse University’s 2021 TRAC Reports:

Michael P. Baird (91.4%),

William A. Cassidy (99%),

V. Stuart Couch (93.3%),

Deborah K. Goodwin (91%),

Stephanie E. Gorman (92%),

Keith Hunsucker (85%),

Sunita Mahtabfar (98.7%),

Philip J. Montante, Jr. (96.3%),

Kevin W. Riley (90.4%),

Earle B. Wilson (98.2%)

Gee, these guys make even the artificially high nationwide asylum denial rates (76%) resulting from Trump’s all-out assault on due process and the rule of law look low by comparison! Gosh, only one of these Dudes was even within 10% (just barely) of that already outrageously high, artificially “reverse engineered” national denial rate.

Yet, inexplicably, these virulently anti-asylum judges continue to serve and negatively shape asylum law under Garland! Even “pre-Trump,” most of them avoided granting any asylum, in the face of precedents supposedly requiring generous application of the law in accordance with U.N. guidance and recognizing gender-based persecution as real.

So, it’s little surprise that no meaningful positive guidance or helpful interpretation has come from Garland’s BIA that might lead to expedited and consistent asylum grants to the many meritorious asylum cases now buried in his burgeoning 1.6 million case Immigration Court backlog! No wonder civil rights, human rights, equal justice, and Constitutional law experts consider Garland to be a failure as AG!

To date, Garland has appointed only one BIA Appellate Judge out of 21! That was to fill an existing vacancy. Judge Andrea Saenz is a superbly qualified asylum expert with scholarly credentials, “real life” experience representing asylum seekers in Immigration Court, clerking experience in those courts, and proven intellectual and practical leadership capabilities.

But, we need a “BIA of Judge Saenzes” — like yesterday! The talent is out there! But, Garland and his lieutenants have been too dilatory, tone deaf, and shockingly indifferent to these glaring due process, expertise, and racial justice issues to bring in the qualified judges and judicial administrators to fix his unjust, unfair, and grotesquely inefficient “courts.” Thus, the dysfunction grows, festers, and eventually destroys, maims, and kills! Is this really an appropriate “legacy” for a Dem Administration?

Today, in a WashPost OpEd, Krish O’Mara Vignarajah, President & CEO of Lutheran Immigration and Refugee Service, points out:

In Houston, where some 6,000 Afghans have resettled — the most of any city in the United States — immigration judges deny no less than 89 percent of claims.

https://www.washingtonpost.com/opinions/2022/03/23/afghan-evacuees-are-stuck-legal-limbo-heres-how-help-them/u

Why are members of this outrageous “protection deniers’ club” still on Garland’s broken and biased Immigration Court bench? You don’t have to be a human rights scholar or Constitutional law expert to see that there is something seriously wrong here that Garland is sweeping under the rug!

Yes, the best answer is an independent Article I Immigration Court, free from the mismanagement and political shenanigans of the DOJ, with a merit-based selection system for judges. But, that doesn’t absolve Garland from the responsibility to fix the existing system NOW before more lives are lost, futures ruined, and American justice irretrievably degraded!

The current racially discriminatory, scofflaw, patently unjust parody of a “court” system being run by Garland is as unacceptable as it is immoral!

Four Horsemen — Garland and Mayorkas have allowed this approach to asylum seekers to flourish on their watch. That raises serious questions about their suitability for their current positions!
Albrecht Dürer, Public domain, via Wikimedia Commons

“Interim Regulations” Aren’t The Answer!

Today, the Biden Administration released new “Interim Asylum Regulations” that appear designed to fail. https://public-inspection.federalregister.gov/2022-06148.pdf. That’s because they don’t address the real competency, leadership, and legal problems plaguing the current system!

I won’t claim to have waded through every word of this entire 512-page mishmash of largely impenetrable bureaucratic gobbledygook. But, I can see it’s more tone-deaf micromanagement of the Immigration Court, along with the usual, arbitrary and capricious, unrealistic “off the wall” “time limits” that are guaranteed to make things worse, not better. It’s basically more of Garland’s “Aimless Docket Reshuffling” and his “Treadmill for Immigration Attorneys” that have already helped fuel unprecedented backlogs amidst wildly inconsistent results and a steady stream of life-threatening errors from his dysfunctional “courts.”

As if the answer to a poorly functioning, hopelessly self-backlogged, incompetent, biased, and unfair system is to “speed it up!” Come on, man! That suggests, quite incorrectly, that the primary problems in our asylum system are something other than lack of competence, integrity, expertise, and leadership at DHS and DOJ!

In reality, Garland’s defective “assembly line justice” at EOIR is already cutting so many corners and being so careless and “denial focused” that a steady stream of elementary legal errors show up in the Courts of Appeals every week. How is speeding up an already unfair and error plagued system going to make it better?

The real answer is to move the many grantable asylum cases that pass credible fear through the system correctly, fairly, on a reasonable, timely, predictable basis, with representation. That requires more and better trained Asylum Officers; different, better Immigration Judges who know how to recognize and grant asylum and keep the parties moving through the system; a new BIA of practical scholars who are due-process-oriented human rights experts to set favorable, practical asylum and procedural precedents and to keep IJs, AOs, and counsel for both sides in line; and close cooperation and advance coordination with the private bar and NGOs to insure representation of all asylum seekers.

This “interim regulation” avoids and obfuscates the necessary personnel replacement, attitude adjustment, and changes to the “culture of denial and deterrence” required in the Executive Branch for our asylum system to work! I predict colossal failure!

Get ready to litigate, NDPA! This is an “in your face,” largely unilateral, insulting approach. Rather than respecting your expertise, dedication, abilities, and counsel in fundamentally changing this system, Mayorkas and Garland intend arrogantly to “shove it down your throats and the throats of asylum seekers” with their inferior personnel, a toxic culture of denial, bad attitudes, and poor lawyering! Accept the challenge to resist!`

🇺🇸Due Process Forever!

PWS

03-24-22

⚖️🗽🇺🇸COURTS & JUSTICE: “COURTSIDE” PROUDLY ANNOUNCES THE “DREAM BIA” — IT’S OUT THERE, EVEN IF GARLAND CAN’T SEE IT!

Start with current BIA judge:

Judge Andrea Saenz

Add these “extraordinary practical scholars” who happen to be the “seven most-cited immigration scholars under 50” (https://lawprofessors.typepad.com/immigration/2021/12/immprofs-make-most-cited-faculty-under-50-list.html):

Amanda Frost (American)
Jennifer Chacón (Berkeley)
Ilya Somin (George Mason)
Adam Cox (NYU)
César Cuauhtémoc García Hernández (Ohio State)
Michael Kagan (UNLV)
Cristina Rodriguez (Yale)

Appoint these inspirational, dynamic, proven “scholar leaders” as Co-Chairs:

Dean Kevin Johnson, UC Davis Law & “most cited” immigration scholar;
Marielena Hincapie, National Immigration Law Center.

Add in three experienced Vice Chairs who really “know the business” (including where all the bodies are buried @ EOIR and how to make bureaucracy respond):

Judge Noel Brennan, NY Immigration Court, former BIA Appellate Judge;
Judge Dana Leigh Marks, San Francisco Immigration Court, former NAIJ President, “winning” attorney before the Supremes in the landmark asylum case INS v. Cardoza-Fonseca;
Michelle Mendez, currently Director, Defending Vulnerable Populations @ Catholic Legal Immigration Network (“CLINIC”).

Wild Card Round:

Jason Dzubow, Esquire, “everyone’s favorite Asylumist;”
Lauren Wyatt, CLINIC, NYC, inspirational scholar-role model working “in the trenches;”
Ayodele Gansallo, HIAS Pennsylvania, Penn Law, co-author of Understanding Immigration Law and Practice, the “Bible of aspiring practical scholar-practitioners;”
Jaya Ramji-Nogales, Associate Dean, Temple Law, co-author of Refugee Roulette and The End of Asylum.

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

Now, THAT’S an amazing, inspiring, dynamic “all-star judicial lineup” that could actually achieve the former “EOIR Vision” of: “Through teamwork and innovation, become the world’s best administrative tribunal, guaranteeing fairness and due process for all!”

What does this diverse group have in common?

Demonstrated, unswerving, overriding commitment to due process and fundamental fairness for migrants and all persons in America;
Impeccable, accessible scholarship in human rights, migrants’ rights, and constitutional interpretation;
Courage to speak truth to power;
Expertise in and concern for ethical issues;
Ability to engage in robust dialogue without sacrificing fundamental principles;
Ability to lead by example and inspire others;
Practicality;
Creativity;
Humanity;
Independence;
Widespread recognition, respect, and admiration among peers.

This court also would have the potential to deliver a long-overdue “wake up call” to the now-floundering Article III Judiciary.

Why would members of this high-powered group of intellectual giants be willing to leave comfortable current positions to accept the challenge of leading and reforming what currently is “America’s Worst Court System?”

A chance to be on a team of some of the most powerful “practical legal intellects” in America;
A chance to show how a diverse court of exceptionally-well-qualified judges can solve problems, implement best practices, and achieve timeliness and efficiency while enhancing due process;
The chance to save lives and improve futures — to make a positive difference in the world that will inspire future generations;
The chance to redefine “justice in America” in a positive way.

The BIA also has a large, talented staff of lawyers (I was one myself, back in the day) who would thrive and prosper under the intellectual leadership of these “practical scholars” and proven teachers! The BIA is potentially the “premier legal university/think tank” in America. But, unlike most think tanks, one with a mission, the ability to render best interpretations, implement best practices, and to issue hundreds of life-defining decisions every day! What other court in America could say the same? Why is this amazing untapped potential basically going to waste?

A pipe dream? Probably. But it shouldn’t be!

The BIA is “Not Quite Ready For Prime Time” (“NQRFPT”). But, “Neon Deion” Sanders IS “Prime Time.” Judge G. should take note! Deion Sanders
Photo by Michael J. Cargill
Creative Commons License

Just look how in a relatively short time as a head coach at a “non-power-conference” HBCU, Jackson State, dynamic former NFL star and “larger than life” personality “Neon Deion” Sanders has shaken up the system and changed the “playing field” in the insular world of “big time college football.” This week, the “projected top recruit” in America chose Sanders & J-State over the “powers that be.” Presence, leadership, boldness, talent, and results (Jackson State was 11-1 this year) can force change for the better in even the most inbred and change-resistant systems (like EOIR, and to a large extent, the entire Federal Judiciary)!

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwiG4L7J0O30AhUEhXIEHXpZC_gQFnoECFEQAQ&url=https%3A%2F%2Fwww.si.com%2Fcollege%2Fhbcu%2Ffootball%2Fdeion-sanders-jackson-state-out-recruited-power-5-worried&usg=AOvVaw22WpbS0LFQ02rTG_rNcRLL

It’s totally within Judge Garland’s power, if he would only wake up and make the bold, yet totally logical, justified, and long overdue moves necessary. He’s already sinking deep into the morass of responsibility for probably the most dysfunctional, yet consequential, failed “court” system in American legal history. What’s he got to lose by taking the steps necessary to dramatically turn things around?

As I recently wrote about EOIR:

With so many extraordinarily talented, creative, courageous, independent legal minds out there in the private/NGO/academic sector of human rights/immigration/racial justice/due process this “intentional mediocrity (or worse)” is inexcusable. Yet, this massive failure of the U.S. justice system at the most basic level gets scant attention outside of Courtside, LexisNexis, ImmigrationProf Blog, Jeffrey S. Chase Blog, The Asylumist, and a few other specialized websites.

https://immigrationcourtside.com/2021/12/15/🏴%E2%80%8D☠%EF%B8%8F👎🏽🤮-aimless-docket-reshuffling-adr-on-steroids-eoir-dysfunction-shows-what-happens-when/

Recent GOP Administrations have been perfectly willing to unethically “weaponize” EOIR to carry out their far-right, nativist political agenda. They have “shrugged off” near-universal criticism of their most outrageous moves, including key quasi-judicial selections, and, inexcusably, “dumbed down” EOIR.

Democrats, by contrast, have been timid, indolent, and feckless, failing to undo the damage and make due process, fundamental fairness, and equal justice for all persons a reality rather than a cruel false promise. Garland appears bullheadedly determined to move in the same wrong direction.

And, “time’s a wasting!” We’re nearly a year into an Administration that promised real improvements but has basically carried out a disgraceful “Miller Lite,” anti-humanitarian, anti-constitutional agenda of abusing, mistreating, and dehumanizing legal asylum seekers and other migrants. As pointed out recently by a number of us, this also extends to the dedicated attorneys and representatives trying to preserve at least some semblance of justice in our stunningly dysfunctional Immigration Courts.

https://immigrationcourtside.com/2021/12/15/%f0%9f%8f%b4%e2%80%8d%e2%98%a0%ef%b8%8f%f0%9f%91%8e%f0%9f%8f%bd%f0%9f%a4%ae-aimless-docket-reshuffling-adr-on-steroids-eoir-dysfunction-shows-what-happens-when/

https://immigrationcourtside.com/2021/12/16/%f0%9f%a4%a1%f0%9f%93%ba-must-see-tv-for-attorney-general-merrick-garland-his-senior-staff-youtube-proudly-presents-immigration-court-may-i-help-you/

As if to prove his tone-deafness, imperviousness to meaningful change at EOIR, and utter disdain for those advocates and “practical scholars” who helped him get his job, after one “better-balanced selection list,” Garland’s latest 22 Immigration Judge appointments reverted to the usual array of government and prosecutorial background appointments to the near-total exclusion of private/NGO/academic sector superstars who have the potential to materially change the trajectory of today’s dysfunctional Immigration Courts. Check this out! How many names do YOU recognize as among the “leading lights” of human rights and immigration scholarship and advocacy? How is this going to help advance due process, promote fundamental fairness, reduce the backlog, develop best practices, and reverse the endemic dysfunction at EOIR?

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/eoir-announces-22-new-immigration-judges

Compare and contrast this list with the ”Dream BIA” described above. The private sector talent pool to improve judging and justice at EOIR is really deep. But, Garland stubbornly refuses to “take the plunge” even as what’s left of our immigrant justice system disintegrates around him!

As Neon Deion could tell Judge G., “getting the best when you’re not yet the best” often involves working extra hard hard to actively change perceptions and aggressively recruit the “star talent.” Just sitting back to see who might apply or sign up doesn’t work any better at EOIR than it does in “non-power-five” college football.

This should be a perhaps never to be repeated chance to “model” a better Federal Judiciary. Almost overnight, Immigration Courts could go from being a “sad but true YouTube comedy routine” to an inspiring model for a better-functioning and more just Federal Judiciary.

But, not with the current personnel in place! Not with the opaque inbred selection process Garland currently uses (getting some outside Government expert input into judicial selections would be a “no-brainer” starting place). Garland is letting it slip through his fingers, but migrants and the rest of us are going to pay the price!

The “new generation” of our legal profession should be both outraged and existentially motivated to stand up to Garland’s intransigence! It’s not just migrants’ lives that are at stake here (as if that weren’t enough, in and of itself)! It’s the future of the U.S. Justice system, our legal profession, and liberal democracy that are swirling down the drain as Garland watches from his ivory tower refuge!

My time on the stage is winding down. But, for a new generation of legal professionals, it’s just starting. YOU and yours are going to have to live with the broken justice system and inferior judging that Garland is countenancing. Demand better, or prepare to live with the ugly consequences of a failed judiciary!

🇺🇸Due Process Forever!

PWS

12-18-21

⚖️🗽🇺🇸👍🏼FOLLOWING A HIDEOUS 0-27 START, GARLAND HITS A HOME RUN! ⚾️ AMAZING PRACTICAL SCHOLAR & NDPA SUPERSTAR ANDREA SAENZ TO BE BIA APPELLATE IMMIGRATION JUDGE — Hopefully, The First Of Many Progressive Judicial Appointments To Come, As Experts Cheer Infusion Of Human Rights Expertise, Lifelong Commitment To Due Process, & Actual Experience Representing Immigrants Into Now Dysfunctional Judiciary!

Here’s Andrea’s bio:

Andrea Sáenz

Andrea Sáenz [was] Attorney-in-Charge of the New York Immigrant Family Unity Project (NYIFUP) at Brooklyn Defender Services. NYIFUP is New York’s first-in-the-nation immigration public defender program representing detained immigrants facing removal. Prior to joining BDS in 2016, Andrea was a Clinical Teaching Fellow in the Immigration Justice Clinic at the Benjamin N. Cardozo School of Law, teaching, litigating, and working on the advocacy that grew NYIFUP at the city and state levels. Andrea has previously worked as an Immigration Staff Attorney at the U.S. Court of Appeals for the Second Circuit, a judicial law clerk at the Varick Street Immigration Court in Manhattan, an Equal Justice Works Fellow at the Political Asylum/Immigration Representation (PAIR) Project in Boston, and a high school ESL teacher. She teaches and trains widely on criminal immigration, detention, and litigation issues. Andrea graduated from Harvard Law School cum laude in 2008 and received her B.A. in English from the University of California, Los Angeles in 2002.

KEY QUOTE:

Andrea Sàenz, Attorney-in-Charge of the New York Immigrant Family Unity Project (NYIFUP) at Brooklyn Defender Services

“Our platform calls for universal representation of immigrants facing deportation, because when the stakes are often literally life, death, or permanent family separation, no one should be deported simply because they couldn’t afford an attorney. We need to change, shrink, and defund the deportation system and reinvest in our communities. ICE enforcement, detention and other cruel immigration policies tear apart families, and we urge the Biden administration and the new Democratic majority congress to listen to our neighbors’ voices.”

https://bds.org/?s=Andrea+Saenz

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

Congratulations, Andrea! As one of my esteemed Round Table colleagues said: “Incredibly great news. I couldn’t think of anybody better and more deserving!” Nor can I!

This is great news for American Justice and for the NDPA. It’s even better news for the long suffering victims of perverted justice at EOIR and their courageous attorneys, like members of the NDPA, who have fought in the trenches for due process, human rights, and human dignity against an intentionally rigged and gamed system designed to deny all three of the foregoing. Andrea also has “EOIR creds,” having been a JLC at the Varick Street Immigration Court.

Finally, someone who has witnessed the waste, unfairness, illegality, and human carnage of failed policies enabled by EOIR’s feckless, tone deaf, careless, and complicit performance of their life-determining quasi-judicial duties. This breaks the scandalous two-decade plus exclusion of the “best and brightest” progressive expert judges from the BIA, the nation’s highest immigration and human rights tribunal, that has helped reduce due process and justice for women and people of color before EOIR to a “sick joke!”

I know that’s it’s impossible for any one person, no matter how brilliant, hard-working, and dedicated, to change the anti-asylum, anti-due process, anti-gender-fairness “culture” encouraged @ EOIR by the past Administration and, to date, not effectively repudiated by Garland. But, it is important that the voice of reason, practicality, due process, fundamental fairness, and humanity once again be heard at EOIR!

We all hope and trust that others will follow in your footsteps, Andrea, and eventually form the “new majority” of a much, much better Immigration Judiciary: That the properly generous, sensible, and humane view of asylum law established in Cardoza-Fonseca and Mogharrabi will again become the guiding lights of immigration jurisprudence rather than being parroted (but not followed), mocked, and dishonored by those whose job it is to protect individual Constitutional, legal, and human rights from Government overreach: That “through teamwork and innovation becoming the world’s best tribunals guaranteeing fairness and due process for all” once again becomes the vision of our Immigration Courts at all levels!

Speaking in behalf of the NFPA, we all appreciate the dedication, hard work, consistent excellence, and intellectual and moral courage it took for Andrea to put herself forward and be a pioneer for the better Immigration Judiciary of our future! On behalf of a grateful NDPA and an appreciative Round Table, thanks, congratulations again, and may the forces of due process guide you and be with you forever!

🇺🇸Due Process Forever!

PWS

09-24-21

Reuters reports:

🇺🇸Due Process Forever!

Related posts:

Emily Allen reports for the Portland (ME) Press Herald:

“Interim Regulations” Aren’t The Answer!

🇺🇸Due Process Forever!

Related posts:

Start with current BIA judge:

Add these “extraordinary practical scholars” who happen to be the “seven most-cited immigration scholars under 50” (https://lawprofessors.typepad.com/immigration/2021/12/immprofs-make-most-cited-faculty-under-50-list.html):

Appoint these inspirational, dynamic, proven “scholar leaders” as Co-Chairs:

Add in three experienced Vice Chairs who really “know the business” (including where all the bodies are buried @ EOIR and how to make bureaucracy respond):

Wild Card Round:

🇺🇸Due Process Forever!

Related posts:

Here’s Andrea’s bio:

KEY QUOTE:

🇺🇸Due Process Forever!

Related posts: