🏰🏴‍☠️“FORTRESS EUROPE” HAS RECEDED FROM U.N. REFUGEE CONVENTION — SPOILER ALERT: It Hasn’t Gone Well! — The US Appears Wedded To The Same Path Of Failure & Deadly Human Rights Abuses!☠️⚰️

Chico Harlan & Stefano Pitrelli report for WashPost:

https://www.washingtonpost.com/world/2022/12/19/migration-europe-numbers-increase/

CROTONE, Italy — On a continent that has spent years trying to cut off undocumented immigration — using fences, surveillance, financial incentives and sometimes even brute force — the close-the-door strategy is faltering

Migration across the Mediterranean has crested to the highest level in five years. New nationalities, most notably from Egypt, have joined the stream of people seeking escape to Europe. And hard-line border policies are merely driving smugglers to adapt: Soon after Greek authorities instituted a practice of harsh pushbacks, boats departing Turkey began charting a longer route — bypassing Greece and heading instead to Italy’s Calabrian coast, an area that used to see almost no arrivals.

“Here comes another,” a law enforcement official at the port of Crotone said one recent morning, watching a vessel with 80 people come into view, just four hours after the arrival of a boat with 81 others.

France accepts migrant rescue ship rejected by Italy as tensions flare

The European Union’s desire to obstruct migration on multiple fronts was reflected in a collection of deals cobbled together in the aftermath of a 2015 mass-scale wave from Africa and the Middle East. And, for a while, the strategy appeared to be working: Mediterranean crossings dipped dramatically. The issue lost political primacy, depriving nationalist parties of kindling.

But an increase in arrivals this year is showing the limits of a Fortress Europe strategy — and reviving the highly contentious issue of how to handle and divvy up those who make it to the E.U. and its borderless travel zone.

“Europe’s expectations were based on a wrong assumption — that mobility across the Mediterranean could be stopped or limited, so it would no longer be politically relevant,” said Roberto Cortinovis, a migration specialist at the Center for European Policy Studies. “And that is impossible.”

. . . .

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

Some of the same things are happening here. Nativist/restrictionists, largely, but not exclusively, from the GOP, keep pushing failed “deterrence only” enforcement policies. And, the USG keeps “investing” in them despite decades of proven failure and deadly human results.

Ironically, today should have been the end of the illegal and abominable Title 42 charade. But, as with past fictional “deadlines” for termination, it didn’t happen.

Even today, nativist GOP Sen. Mike Lee (R-UT) seeks to “sink” the Omnibus Budget Bill with a “poison pill” amendment that would require the Biden Administration to extend the deadly and illegal Title 42. https://thehill.com/homenews/senate/3784529-mike-lee-title-42-drama-holds-up-omnibus-passage/

Just to put Lee’s outrageous abuse of the law and human rights in perspective, remember that U.S. District Judge Emmet Sullivan recently concluded, on a voluminous record, that the use of Title 42 to deny migrants’ legal rights at the border was: 1) an illegal pretext from the beginning, and 2) causes “stomach churning” dire, irreparable harm, including rape, torture, and death, to legal asylum seekers. Essentially, nativist politicos like Lee are trying to force the Biden Administration to commit even more egregious human rights violations — on top of the hundreds of thousands, perhaps millions, they have already committed by enforcing Title 42 over the past two years.

While Lee’s scurrilous and totally misguided amendment is likely to fail, another almost equally bad one, sponsored by Sen. Sinema (I-AZ) to extend Title 42 indefinitely (till a “better plan” is in effect, which will never happen, particularly if the GOP has anything to say about it), is also up for a vote. “Lost in the shuffle” is the simple fact that we have existing laws that could and should be used to timely grant refugee to those legally qualified while expeditiously and summarily removing those with no credible claim. That the Biden Administration has failed to develop a viable plan for re-implementing existing law (which had been in effect for decades before being illegally abrogated by Trump) over the past two years should not be confused with impossibility!

As Nolan Rappaport recently said over on The Hill, “Title 42 is a distraction, not the solution. . . . . And Title 42 didn’t prevent a surge in the number of illegal crossings.” https://thehill.com/opinion/immigration/3782869-bidens-border-crisis-title-42-is-a-distraction-not-the-solution/.

Far from it, as many experts have pointed out, illegally “closing” ports of entry to asylum seekers has made unauthorized entry the “sole and exclusive” way for asylum seekers to exercise their rights! Yet, nativist politicos, the media, and even the Biden Administration ignore or mister present this truth.

As the International Organization on Migration has said, ““Migration is inevitable, necessary and desirable.” https://www.iom.int/news/migration-inevitable-necessary-and-desirable-opening-exhibition-iom-hague. It can be controlled and channeled with wise, realistic, and humane decisions. But, it won’t be stopped by walls, prisons, deportations, racist nationalistic rhetoric, militarization of borders, or cruel and inhumane laws and restrictionist policies.

Or, as I have said before, “We can diminish ourselves as a nation, but it won’t stop human migration.” Sure, the U.S. needs comprehensive, robust immigration reform that recognizes the inevitably and mutual benefits of human migration. But, particularly with a GOP House, it’s not on the horizon.

In the meantime, it is incumbent on the Biden Administration to make existing laws and policies work to timely, efficiently, and humanely screen refugees and asylum seekers at our borders. Those who qualify should be admitted in a reasonable period of time rather than aimlessly sent to wander the U.S. waiting for interviews from USCIS or hearings from EOIR that might never happen because of mismanagement and lack of vision in the current system. Those who don’t have credible claims should be subject to the summary removal procedures of the current law.

That the Biden Administration has, to date, lacked the competence, vision, and expertise to make the existing laws work in an acceptable manner is a shame. Ultimately, it’s one they won’t be able to “run away from” no matter how hard they try!

🇺🇸 Due Process Forever!

PWS

12-22-22

☠️🏴‍☠️💀⚰️🤮 “SEASON’S GREETINGS” — AS POLITICOS OF BOTH PARTIES FALSELY CLAIM THAT TITLE 42 IS NECESSARY, REMEMBER THAT THEY ARE PROMOTING: 1) Continuing Violation of US & International Laws Protecting Asylum Seekers; 2) Continuing Gross Abuses Of Human Rights; & 3)“[T]he record is replete with stomach-churning evidence of death, torture, and rape.”

Four Horsemen — A HOLIDAY MESSAGE FROM US POLITICOS OF BOTH PARTIES TO LEGAL ASYLUM SEEKERS: “Suffer & Die!”
Albrecht Dürer, Public domain, via Wikimedia Commons

Here are some relevant portions of Judge Sullivan’s opinion in Huisha-Huisha v. Mayorkas, D.D.C., Nov. 22, 2022, to keep in mind as the bogus claims and misleading reporting continue to mushroom ahead of the Dec. 22 (Wednesday) date for re-establishing the rule of law @ our Southern Border:

It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals, particularly when those actions included the extraordinary decision to suspend the codified procedural and substantive rights of noncitizens seeking safe harbor. See Huisha-Huisha, 27 F.4th at 724-25 (describing the “procedural and substantive rights” of aliens, such as asylum seekers, “to resist expulsion”); cf. Regents, 140 S. Ct. at 1914-15 (holding that agency should have considered the effect rescission of DACA would have on the program’s recipients prior to the agency making its decision). As Defendants concede, “a Title 42 order involving persons will always have consequences for migrants,” Defs.’ Opp’n, ECF No. 147 at 42, and numerous public comments during the Title 42 policy rulemaking informed CDC that implementation of its orders would likely expel migrants to locations with a “high

29

probability” of “persecution, torture, violent assaults, or rape.” See Pls.’ Mot., ECF No. 144-1 at 27; see also id. at 27- 28 (listing groups subject to expulsion under Title 42, including “survivors of domestic violence and their children, who have endured years of abuse”; “survivors of sexual assault and rape, who are at risk of being stalked, attacked, or murdered by their persecutors in Mexico or elsewhere”; and “LGBTQ+ individuals from countries where their gender identity or sexual orientation is criminalized or for whom expulsion to Mexico or elsewhere makes them prime targets for persecution” (citing AR, ECF No. 154 at 28-29, 47, 153) (cleaned up)). It is undisputed that the impact on migrants was indeed dire. See, e.g., Huisha-Huisha, 27 F.4th at 734 (finding Plaintiffs would suffer irreparable harm if expelled to places where they would be persecuted or tortured).

The CDC “has considerable flexibility in carrying out its responsibility,” Regents, 140 S. Ct. at 1914, and the Court is mindful that it “is not to substitute its judgment for that of the agency,” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). But regardless of the CDC’s conclusion, its decision to ignore the harm that could be caused by issuing its Title 42 orders was arbitrary and capricious.

30

3. The Title 42 Policy Failed to Adequately

Consider Alternatives

Plaintiffs also argue that the Title 42 policy is arbitrary and capricious because CDC failed to adequately consider alternatives and the policy did not rationally serve its stated purpose. See Pls.’ Mot., ECF No. 144-1 at 10-11.

(29-31)

However, despite the above, Defendants have not shown that the risk of migrants spreading COVID-19 is “a real problem.” District of Columbia v. U.S. Dep’t of Agric., 444 F. Supp. 3d 1, 27 (D.D.C. 2020) (citing Nat’l Fuel Gas Supply Corp. v. FERC, 468 F.3d 831, 841 (D.C. Cir. 2006)). “Professing that an agency action ameliorates a real problem but then citing no evidence demonstrating that there is in fact a problem is not reasoned decisionmaking.” Id. (cleaned up); see Huisha-Huisha, 27 F.4th at 735 (“[W]e would be sensitive to declarations in the record by CDC officials testifying to the efficacy of the § 265 Order. But there are none.”). As Plaintiffs point out, record evidence indicates that “during the first seven months of the Title 42 policy, CBP encountered on average just one migrant per day who tested positive for COVID-19.” Pls.’ Mot., ECF No. 144-1 at 22 (citing Sealed AR, ECF No. 155-1 at 23). In addition, at the time of the August 2021 Order, the rate of daily COVID-19 cases in the United States was almost double the incidence rate in Mexico and substantially higher than the incidence rate in Canada. See 86 Fed. Reg. at 42831 (noting 137.9 daily cases per 100,000 people in the United States, compared to 68.6 in Mexico and 8.0 in Canada). The lack of evidence regarding the effectiveness of the Title 42 policy is especially egregious in view of CDC’s previous conclusion that “the use of quarantine and travel restrictions, in the absence of evidence of their utility, is detrimental to efforts to combat the spread of communicable disease,” Control of Communicable Diseases, 82 Fed.

39

Reg. 6890, 6896; as well as record evidence discussing the “recidivism” created by the Title 42 policy, which actually increased the number of times migrants were encountered by CBP, see AR, ECF No. 154 at 45 (commenter describing recidivism); AR, ECF No. 155-1 at 4 (January/February 2021 statistics showing nearly 40% of family units DHS encountered in January-February 15, 2021 were migrants who had attempted to cross at least once before).

(39-40)

Particularly in view of the harms Plaintiffs face if summarily

expelled to countries they may be persecuted or tortured, the Court

42

therefore vacates the Title 42 policy. Cf. Nat. Res. Def. Council v. EPA, 489 F.3d 1250, 1262–64 (D.C. Cir. 2007) (Randolph, J., concurring) (“A remand-only disposition is, in effect, an indefinite stay of the effectiveness of the court’s decision and agencies naturally treat it as such.”).

(42-43)

Meanwhile, Plaintiffs have presented evidence demonstrating that the rate of summary expulsions pursuant to the Title 42 policy has nearly doubled since September 2021. See Pls.’ Mot., ECF No. 144-1 at 30 (“At the time of this Court’s original decision, approximately 14% of

45

families encountered at the southwest border were being summarily expelled pursuant to the Title 42 policy. . . . Now, the rate of expulsions is nearly twice as high, reaching 27%.”); see also Pls.’ Reply, ECF No. 149-1 at 31 (“[I]n the month of July 2022 alone, 9,574 members of family units encountered at the southern border were summarily expelled pursuant to the Title 42 policy.”). And “[i]n Mexico alone, recorded incidents” of “kidnapping, rapes, and other violence against noncitizens subject to Title 42” have “spiked from 3,250 cases in June 2021 to over 10,318 in June 2022.” Pls.’ Mot., ECF No. 144-1 at 30 (citing Neusner Decl., ECF No. 118-4; Human Rights First, The Nightmare Continues: Title 42 Court Order Prolongs Human Rights Abuses, Extends Disorder at U.S. Borders, at 3-4 (June 2022)). Accordingly, even if the Court accepts Defendants’ unsupported statement that the “situation for class members has improved,” the evidence demonstrates that Plaintiffs continue to face irreparable harm that is beyond remediation. See Huisha-Huisha, 27 F.4th at 733 (“[T]he record is replete with stomach-churning evidence of death, torture, and rape.”).

N

(45-46)

Because “there is an overriding public interest . . . in the general importance of an agency’s faithful adherence to its statutory mandate,” Jacksonville Port Auth. v. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977); the Court concludes that an injunction in this case would serve the public interest, see A.B.-B. v. Morgan, No. 20-cv-846, 2020 WL 5107548, at *9 (D.D.C. Aug. 31, 2020) (“[T]he Government and public can have little interest in executing removal orders that are based on statutory violations . . . .”).

Moreover, Defendants do not contend that issuing a

permanent injunction would cause them harm or be inconsistent

with the public health. Indeed, “CDC recognizes that the current

public health conditions no longer require the continuation of

47

the August 2021 order,” Defs.’ Opp’n, ECF No. 147 at 44; see also Pls.’ Mot., ECF No. 144-1 at 30, in view of the “less burdensome measures that are now available,” 87 Fed Reg. at 19944; id. at 19949–50. The parties also do not dispute that Plaintiffs continue to face substantial harm if they are returned to their home countries, notwithstanding the availability of USCIS screenings. See, e.g., Human Rights First, The Nightmare Continues: Title 42 Court Order Prolongs Human Rights Abuses, Extends Disorder at U.S. Borders, at 3-4 (June 2022). As the Supreme Court has explained, the public has a strong interest in “preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm.” Nken, 556 U.S. at 436.

(47-48)

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

So, when you hear guys like Abbott, Ducey, DeSantis, Manchin, Cuellar, Gonzales, GOP nativist AGs, and the like use this holiday season during which we are supposed to be celebrating messages of hope, faith, mercy, and “goodwill toward men” to extol the virtues of illegal expulsions under Title 42, remember what their are REALLY saying:

“I want the US to continue violating domestic and international laws protecting refugees and asylum seekers, to continue to knowingly violate the human rights and human dignity of asylum seekers, and to place our fellow humans in danger zones where they will suffer stomach-churning episodes of death, torture, and rape. I don’t believe our nation is capable of complying with our duly-enacted laws to protect refugees and asylum seekers that have been in effect since 1981 until 2020 when they were illegally suspended by the Trump Administration using a public health pretext, as found by a Federal Judge. I urge the Biden Administration, which has already illegally expelled hundreds of thousands of migrants with no due process, to continue committing grotesque violations of the law and human rights and to increase the violations so that more men, women, and children will suffer rape, torture, an dearth as a consequence. This is my holiday season message to America and humanity: Peace on earth and goodwill toward all mankind, EXCEPT those seeking legal asylum by applying at our Southern Border. To them: rape, torture, and death without due process!

Title 42 expulsions of asylum seekers are a clear violation of Judeo-Christian ethics. To be advocating for its continuing application at any time, let alone during this season, is the height of hypocrisy; so is characterizing the largely self-inflicted mess at the Southern Border as a “humanitarian emergency” and then proposing to “solve” it by sending legal asylum seekers back to rape, torture, kidnapping, robbery, extortion, and death in Mexico and other nations in turmoil without any type of process to determine whether they have a “credible fear” of persecution, as required by law.

🇺🇸 Due Process Forever!

PWS

12-19-22

⚖️🗽BREAKING: DC CIR. REBUFFS GOP ATTEMPT TO FORCE MORE HUMAN RIGHTS VIOLATIONS @ S. BORDER — Brings End Of Title 42, Restoration Of Rule Of Law A Step Closer!

U.S. appeals court ruling means border expulsions on track to end Dec. 21

A federal appeals court in the District of Columbia rules on the Biden administration’s plans to stop expelling migrants from the nation’s borders.

By Maria Sacchetti and Arelis R. Hernández

https://www.washingtonpost.com/national-security/2022/12/16/border-title-42/

https://www.washingtonpost.com/national-security/2022/12/16/border-title-42/

******************
It’s possible that the nativist AGs will try the Supremes. But, a stay at this point seems unlikely.

The next issue is that the Biden Administration has shown little enthusiasm for actually ending Title 42 (despite nominally professing a desire to do so) and no apparent confidence that they can competently restore the rule of law for asylum seekers. Maybe, advocates and the asylum seekers themselves will save the Administration from itself once again. But, that’s a tall order.

🇺🇸Due Process Forever!

PWS

12-16-22

🇺🇸🗽⚖️ JOIN AFSC IN OPPOSING THE BIDEN ADMINISTRATION’S EMBRACE OF TITLE 42 & THE DAILY VIOLATIONS OF HUMAN RIGHTS THE ADMINISTRATION COMMITS 🏴‍☠️ USING THIS UNLAWFUL & IMMORAL CHARADE!

https://www.afsc.org/action/tell-president-biden-restore-right-to-claim-asylum

Tell President Biden: Restore the right to asylum!

Sign our petition today

American Friends Service Committee

1.89K subscribers

End Title 42!

<div class=”player-unavailable”><h1 class=”message”>An error occurred.</h1><div class=”submessage”><a href=”https://www.youtube.com/watch?v=PpQH–gTPoA” target=”_blank”>Try watching this video on www.youtube.com</a>, or enable JavaScript if it is disabled in your browser.</div></div>

Migrants should be welcomed with dignity and compassion—not turned away or treated inhumanely.

Finally, after over two years, a district court has ruled that the Title 42 expulsion policy- which has blocked most migrants from crossing the U.S.-Mexico border to seek asylum- violates U.S. law and ordered the Biden administration to end it.

This anti-immigrant policy has led to hundreds of thousands of people deported back to dangerous conditions or stranded in makeshift camps. Other migrants have been forced to take dangerous routes through deserts, mountains, rivers, and the ocean—facing extreme heat, violence, even death.

The termination of the policy goes into effect at the end of December, unless the administration attempts to delay this. That is why we are calling on the Biden administration to end this policy IMMEDIATELY and to not accompany this with the expansion of detention.

Sign our petition to speak out against this cruel policy today!

Letter to President

Dear President Biden:

I believe that people fleeing dangerous situations in their home countries should be welcome to the United States with compassion—not dealt overwhelming obstacles to seeking asylum.

That is why I am relieved to hear that after over two years, a district court has ended the cruel and unnecessary use of Title 42. This anti-immigrant policy has led to hundreds of thousands of people deported back to dangerous conditions or stranded in makeshift camps. Under this cruel policy, Black and Brown migrants have suffered disproportionately while some others have been able to seek asylum—evidence of the racism that drives our immigration enforcement policies.

That is why I am calling on the Biden administration to end Title 42 immediately and to not replace it with other inhumane and xenophobic policies that cause similar harm. Additionally, your administration must not accompany this with the expansion of immigration detention. Any efforts to uphold this policy actively supports more family separations, trauma, and violence against Black, Brown, and immigrant communities.

All people—regardless of where they were born, the color of their skin, their culture or religious affiliation—should be able to seek refuge and be welcomed with the compassion, dignity, and respect we all deserve. I urge your administration to do all that you can to end Title 42 immediately—and ensure all migrants can exercise their right to seek asylum.

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The regime that employed this monster to abuse and persecute asylum seekers was voted out of office more than TWO YEARS AGO! Long past time for the Biden Administration to STOP defending, expanding, and carrying out his illegal and immoral policies that inflict “DIRE HARM” on vulnerable LEGAL asylum seekers! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

”BIDEN DOJ HALL OF SHAME” — Those Who Have Defended or Enabled Stephen Miller’s “Crimes Against Humanity:”

Merrick Garland, Attorney General
Lisa Monaco, Deputy Attorney General
Vanita Gupta, Associate Attorney General
Kristen Clarke, Assistant Attorney General, Civil Rights
Elizabeth Prolager, Solicitor General

When these guys eventually “come out” of their cushy political positions, and are looking for jobs in the “real world” they now blithely ignore, progressives, human rights, and racial justice advocates should remember where they stood and what they did or failed to do when human rights and the rule of law were “on the line!”

🇺🇸Due Process Forever!

PWS

12-10-22

☠️🤯🤮🚫 AFTER WINNING YEARS-LONG BATTLE TO STOP ILLEGAL REFUGEE REMOVALS BY TRUMP & BIDEN, WEARY HUMAN RIGHTS ADVOCATES FACE DAUNTING NEW CHALLENGE: Garland’s Dysfunctional Due-Process-Denying “Courts” — Key Empirical Info Lacking, But We Do Know One Important Thing: Garland’s Latest Docket “Gimmick” — Time Limits — Sharply Reduces Chances Of Success, From Probable Grant (52%) To Likely Denial! — Quality Control & Grotesque Inconsistencies Remain Unaddressed In Dem AG’s “Race To Deny” Legal Protection!🤮

Judge Roy Bean — “Judge” Roy Bean (1825-1903)
American Saloon Keeper & “Jurist”
Public Realm
His reputation for “rough justice” in the West would be right at home in the “Asylum Free Zones” of Garland’s EOIR. Bean “was once trying a Mexican on a charge of horse stealing and his charge was the shortest on record: Gentlemen of the Jury, there’s a greaser in the box and a hoss missing. You know your duty, and they did.”

Here’s the latest analysis of Garland’s ongoing abuse of his office from Austin Kocher, PhD, at TRAC:

https://trac.syr.edu/reports/702/

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

If someone NOT Merrick “What Me Worry” Garland (the “Alfred E. Neumann of Biden’s immigration bureaucracy”) took a look at the data, one major thing would jump out! There are likely more than 400,000 refugees entitled to asylum sitting in Garland’s 770,000 case asylum backlog (52% x 770,000). (The asylum backlog at EOIR is a “subset” of Garland’s largely self-inflicted, ever mushrooming, nearly 2 million case EOIR backlog — more judges have produced more backlog, so that’s likely NOT the answer here).

And, this is in a system currently governed by skewed anti-asylum BIA “precedents” and a chronic “anti-asylum culture” actively encouraged and fed by the Trump Administration. In a properly staffed and functioning court system with qualified, due-process oriented, judges and an expert BIA that enforced some decisional consistency and properly and generously interpreted asylum law, a “grant rate” of 75% or more would be a plausible expectation.

Given the obvious (and I would argue intentional) lack of reliable data on how a legitimate asylum system, one consisting at all levels of judges with well-recognized expertise in asylum law and human rights, and overseen by competent, due-process-oriented judicial administrators, might function, the 75% figure is just an “educated guesstimate.” But, it matches my own personal experience over 13 years on the bench in the (now defunct) Arlington Immigration Court.

It’s also in line with my recent conversations with the head of one of the largest NGOs in the DMV area involved in meeting busses and counseling those “orbited” from the Southern border by the racist/nativist GOP Govs that Biden, curiously, has chosen to run our domestic refugee resettlement program. This is a person who, unlike Garland, his lieutenants, and most of the other politicos and nativist blowhards participating in the “border travesty,” actually spent years of a career representing individuals in Immigration Court. They estimated that “at least 70%” of the “arriving bus riders” had very viable asylum claims.

This is a far cry from the nativist, restrictionist myths promoted by both the Trump and Biden Administrations — obviously to cover up their gross human rights violations in knowingly and illegally returning hundreds of thousands of legal refugees to danger zones! Many human rights experts would consider such gross misconduct to be “crimes against humanity.” Consequently, it doesn’t take much imagination to see why self-interested scofflaw officials like Garland, Mayorkas, and White House advisors seek to manipulate the system to keep the asylum grant rates artificially low while eschewing proper, realistically robust use of the overseas refugee program to take the pressure off the border — by acting legally rather than illegally!

Almost all the EOIR asylum backlog consists of “regular docket” (I use this term lightly with EOIR where “normalcy” is unknown) cases. Those are refugees who have had time to get lawyers, adequately prepare, document their cases, but are stuck in Garland’s chronically dysfunctional system. Consequently, they are “denied by delay” legal immigration status, a chance to get green cards, and to eventually qualify for citizenship. The American economy is denied an important source of legal workers who should be part of our permanent workforce and well on their way to full participation in our political system and society!

An expert looking at this system would see a “golden opportunity” to move most of the backlogged “easily grantable” asylum cases out of the system with stipulated grants or short hearings (the kind you actually might be able to do 3-4 a day without stepping on anyone’s due-process rights or driving the private bar nuts). These cases would also avoid the BIA’s appellate backlog, as well as eliminating unnecessary workload in the U.S. Circuit Courts (which already have their own inconsistency, rubber stamp, and bias issues in the human rights/racial justice area that seem to be getting worse, not better).

Knocking 400,000+ cases off the backlog wouldn’t completely solve Garland’s 2 million case backlog problem — only a complete “house cleaning” at EOIR, replacing many of the current bureaucrats with competent leaders and expert Immigration Judges well-versed in asylum law, will do that. But, cutting EOIR’s backlog by 20% (and the asylum backlog by over 50%) without stomping on anyone’s rights, while bolstering much-needed legal immigration, and harnessing the strengths of the private/pro bono bar, is nothing to “sneeze at!” That’s particularly true in comparison with Garland’s two years of mindless “designed to fail” gimmicks and astounding mismanagement, which have produced exactly the opposite results!

How bad has Garland’s leadership been at on human rights, due process, and racial justice at DOJ. A number of seasoned asylum practitioners have told me that today’s EOIR, also suffering from a tidal wave of Garland’s “Aimless Docket Reshuffling” — is actually significantly worse than it was under Trump! That’s right, Garland’s tone-deaf incompetence has exceeded the disorder and systemic unfairness caused by overt xenophobia, anti-asylum bias, misogyny, “dumbing down,” and enforcement-biased “weaponization” of the Sessions/Barr years.

As for Dr. Kocher’s cogent observation that input from the Immigration Judges who actually decide these cases is a “missing ingredient,” good luck with that, my friend! Perhaps understandably in light of his unseemly failures at EOIR, Garland has taken EOIR’s traditional opaqueness and “muzzling” of Immigration Judges to new heights — even barring their participation in CLE events aimed at improving the level of practice before his courts.

Apparently, “studied incompetence” in a Democratic Administration can be even worse than the “malicious incompetence” of the Trump Kakistocracy — at least where immigrants rights/human rights/racial justice/ women’s rights are concerned at EOIR. That’s an astounding observation! One that I actually never thought I’d hear from practitioners!

The only way for human rights and racial justice experts and advocates to “communicate” with Garland in his “ivory tower” is to ‘“sue his tail” in court! Judge Sullivan’s recent opinion finding Title 42 illegal incorporates the very facts and law used by human rights experts and advocates in years of fruitless pleading and begging Garland to “cease and desist” his support for unlawful conduct and “just follow the law.” The latter seems like a modest “no-brainer” request to a guy once nominated by an Dem President for the Supremes.

Waiting for Merrick Garland to fix the mess at EOIR to provide even a bare minimum of due process and rational administration is like waiting for the guy pictured below. Frustrated and “Garland-weary” as they might be, human rights advocates should take it to heart and act accordingly!

Waiting for Godot — Waiting for Merrick Garland and his “clueless crew” at DOJ to fix the dysfunctional Immigration Courts will be an exercise in futility. He only pays attention when ordered by a Federal Judge, which, somewhat ironically, he used to be. But, he’s proven “beyond a reasonable doubt” that he is unqualified to run one of the most important and life-determining Federal Judiciaries — one where due process has been buried beneath an avalanche of expediency, incompetency, intellectual dishonesty, and dumb gimmicks. When will “enough be enough?”
https://creativecommons.org/licenses/by-sa/3.0

🇺🇸 Due Process Forever!

PWS

11-17-22

RIGGED “COURTS” – BIA’S ANTI-ASYLUM BIAS “OUTED” AGAIN, AS 6TH CIR. BLASTS BOGUS DENIAL OF ASYLUM TO GUATEMALAN DOMESTIC VIOLENCE SURVIVOR – Says Sessions’s “Reasoning” in A-B- “Abrogated” By Judge Sullivan’s Ruling in Grace v. Whitaker — Juan Antonio v. Barr

https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0156p-06.pdf

Juan Antonio v. Barr, 6^th Cir., 05-19-20, published

PANEL: COLE, Chief Judge; BOGGS and GIBBONS, Circuit Judges

OPINION BY: Judge Gibbons

CONCURRING OPINION: Judge Boggs

KEY QUOTES:

Footnote 3:

3Matter of A-R-C-G was overruled by Matter of A-B, which held that the Board in Matter of A-R-C-G- did not conduct a rigorous enough analysis in its determination that the particular social group was cognizable. See Matter of A-B-, 27 I. & N. Dec. 316, 331 (A.G. 2018) (noting that because DHS conceded that particular social group was cognizable, “the Board performed only a cursory analysis of the three factors required to establish a particular social group”). Our sister circuits have determined that this change counsels remand. See Padilla- Maldonado v. Att’y Gen. U.S., 751 F. App’x 263, 268 (3d Cir. 2018) (“While the overruling of A-R-C-G- weakens [the applicant’s] case, it does not automatically defeat her claim that she is a member of a cognizable particular social group. As we remand to the BIA to remand to the IJ, the IJ should determine whether [the applicant’s] membership in the group . . . is cognizable . . ..”); Moncada v. Sessions, 751 F. App’x 116, 118 (2d Cir. 2018) (“This Court, like the BIA, applies the law as it exists at the time of decision. And, where, as here, intervening immigration decisions from the executive branch alter the applicable legal standards, we have previously exercised our discretion to remand the matter to the BIA to apply the new standards in the first instance. Recognizing the wisdom of this practice, we take the same tack here and remand this case ‘for the BIA to interpret and apply the standards set forth in [Matter of A-B-] in the first instance.’” (quoting Biao Yang v. Gonzales, 496 F.3d 268, 278 (2d Cir. 2007) (internal citations omitted)).

However, Matter of A-B- has since been abrogated. See Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018). Grace found that the policies articulated in Matter of A-B- were arbitrary, capricious, and contrary to law. See id. at 126–27 (holding that there is no general rule against claims involving domestic violence as a basis for membership in a particular social group and that each claim must be evaluated on an individual basis under the statutory factors). The district court’s decision in Grace is currently on appeal to the D.C. Circuit. We acknowledge that we are not bound by Grace but find its reasoning persuasive. Because Matter of A-B- has been abrogated, Matter of A-R-C-G- likely retains precedential value. But, on remand, the agency should also evaluate what effect, if any, Matter of A-R-C-G- and Grace have had on the particular social group analysis. See Bi Xia Qu, 618 F.3d at 609 (“When the BIA does not fully consider an issue, . . . the Supreme Court has instructed that a reviewing court ‘is not generally empowered to conduct a de novo inquiry into the matter being reviewed.’ Rather, ‘the proper course, except in rare circumstances, is to remand to the [BIA] for additional investigation or explanation.’” (quoting Gonzales v. Thomas, 547 U.S. 183, 186 (2006))).

. . . .

When an asylum claim focuses on non-governmental conduct, the applicant must show that the alleged persecutor is either aligned with the government or that the government is unwilling or unable to control him. See Khalili, 557 F.3d at 436. An applicant meets this burden when she shows that she cannot “reasonably expect the assistance of the government” in controlling her perpetrator’s actions. Al-Ghorbani, 585 F.3d at 998. For example, in In re S-A, the Board found that an applicant was eligible for asylum when she suffered domestic abuse at the hands of her father. In re S-A-, 22 I. & N. Dec. 1328 (BIA 2000). Relying on evidence showing that “in Morocco, domestic violence is commonplace and legal remedies are generally unavailable to women,” and that “‘few women report abuse to authorities’ because the judicial procedure is skewed against them,” the Board held that “even if the respondent had turned to the government for help, Moroccan authorities would have been unable or unwilling to control her father’s conduct.” Id. at 1333, 1335 (quoting Committees on International Relations and Foreign Relations, 105th Cong., 2d Sess., Country Reports on Human Rights Practices for 1997 1538 (Joint Comm. Print 1998)).

Here, both the immigration judge and Board agreed that the beatings, rape, and threats Maria suffered were severe enough to constitute persecution, but that she failed to show that the Guatemalan government was unwilling or unable to control Juan. In support of its conclusion,

No. 18-3500 Juan Antonio v. Barr Page 16

the Board noted that the government issued a restraining order against Juan, the mayor fined Juan for beating their daughter, and that Maria and their children were able to remain in their home for the year before she left Guatemala. AR 5, BIA Decision. Maria argues on appeal that the Board’s decision was not supported by substantial evidence on the record as a whole. We agree with her.

Taken as a whole, the record compels the conclusion that Maria cannot “reasonably expect the assistance of the government” in controlling Juan. Al-Ghorbani, 585 F.3d at 998. First, the Board’s conclusion that the restraining order effectively controlled Juan is clearly contradicted by the evidence. Maria testified that Juan “did not obey [the restraining order] because there [was] no police” and “[h]e wasn’t afraid” of any consequences, AR 180, Immigration Ct. Tr., and that at some time that year, Juan came to Maria’s home and beat their oldest child with his belt. She further testified that she went to the police station to file a complaint, but the police never investigated the crime. Second, the Board’s conclusion that “the respondent and her children were able to live legally in the family house” for a year does not paint an accurate picture of that year. AR 5, BIA Decision. The year was not a “period of calm,” as the Board characterized it, but rather, a year which affirmed that the Guatemalan government had not effectively gained control over Juan. Id at 5 n.2. Throughout the course of the year, Maria received threats that Juan “was going to kill [her], and if not[,] that he would pay someone to do something.” AR 188, Immigration Ct. Tr. Juan’s girlfriend also “began threatening [Maria] about once a week, yelling at [her] . . . that she and Juan would kill [her] if [she] didn’t move out of the house.” AR 332, I-589 Appl. In May 2014, Juan’s sister told Maria that “Juan had bought a gun and that he planned to kill [Maria].” Id. at 333. The events of that year indicate that the government had not effectively gained control over Juan.

Moreover, that Juan received a fine of approximately $200 for beating up their oldest child (from a judge who no longer works in town, at a courthouse that has since been destroyed) may indicate some willingness of the Guatemalan government to control Juan but it does not indicate its ability to do so. The concurrence points to the restraining order and fine as evidence

No. 18-3500 Juan Antonio v. Barr Page 17

Guatemala is willing to enforce its laws but may not always be successful.4 While the concurrence would emphasize what Guatemala did, it is more important to look at the numerous instances when the government failed to act or even respond as well as the harm the government failed to prevent. The death threats Maria received continued even after Juan was fined. And Juan’s purchasing of a gun—which ultimately led Maria to flee—came after Juan was fined. Moreover, the police failed to respond to Maria’s calls for help on two occasions when Juan came to Maria’s house and threatened her and/or their children. In reviewing this evidence, the immigration court opined that it “would be left to wonder if Juan intended to kill the respondent, the mother of his four children, why would he not have done so.” AR 70, Immigration Ct. Order. But it cannot be that an applicant must wait until she is dead to show her government’s inability to control her perpetrator.

The supplemental evidence regarding Guatemala’s country conditions corroborates that Maria could not “reasonably expect the assistance of the government” in controlling Juan’s actions. Al-Ghorbani, 585 F.3d at 998; see In re S-A-, 22 I. & N. Dec. 1328 (BIA 2000). The evidence Maria submitted shows that “[t]he systemic marginalization of indigenous communities . . . continues with no meaningful efforts by the government to overcome it.” AR 285, State of the World’s Minorities and Indigenous Peoples 2015—Guatemala. It also indicates that “[i]mpunity for perpetrators remain[s] very high,” AR 255, Country Reports on Human Rights Practices for 2016, and that for Mayan indigenous women, there is “increased vulnerability and gender-based violence . . . exacerbated by a weak state apparatus that struggles to implement laws and programming to protect these groups.” AR 274, Guatemala Struggles to Protect Women Against Endemic Violence. Indigenous Mayan women are particularly unable to seek help from the government because they speak a different language from most of the country’s authorities. To be sure, the supplemental material does not indicate no willingness on behalf of the Guatemalan government—indeed, the country has taken some steps to codify laws prohibiting violence against women—but rather, the material reinforces the country’s lack of

4The concurrence’s reference to the enforcement of domestic abuse law violations in this country is both inapt and irrelevant.

No. 18-3500 Juan Antonio v. Barr Page 18 resources and infrastructure necessary to protect indigenous Mayan women from their perpetrators.

Further, the Board’s conclusion that Maria did not meet her burden of showing that the Guatemalan government was “helpless” relies on a standard that has since been deemed arbitrary and capricious. AR 5, BIA Decision. The United States District Court for the District of Columbia found that the “complete helplessness” standard is arbitrary, capricious, contrary to law, and “not a permissible construction of the persecution requirement.” Grace v. Whitaker, 344 F. Supp. 3d 96, 130 (D.D.C. 2018).

Thus, the Board’s conclusion that Maria did not demonstrate that the Guatemalan government was unwilling or unable to control Juan is not supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Zhao, 569 F.3d at 247 (quoting Koulibaly, 541 F.3d at 619). Maria’s testimony about her experiences, corroborated by supplemental evidence of the conditions for indigenous Mayan women in Guatemala, compels a contrary conclusion to that of the Board. See Mandebvu, 755 F.3d at 424. Based on the evidence in the record, Maria could not “reasonably expect the assistance of the government” in controlling Juan’s actions. Al-Ghorbani, 585 F.3d at 998. We therefore vacate the Board’s finding that Maria did not show that the government was unable or unwilling to protect her and remand so the agency can reconsider her application consistent with this opinion.

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

Thanks to my Round Table colleague Judge Jeffrey Chase for spotting this decision and sending it my way.

And congratulations to Margaret Wong, Esquire, of Cleveland, OH, who represented the respondent so ably before the 6^th Circuit. Margaret and the attorneys from her firm appeared before me numerous times during the many years that I was assigned to the Cleveland docket part-time from Arlington, with most of the hearings taking place by televideo.

Margaret W./ Wong
Senior PartnerMargaret W. Wong & Associates LLC

The BIA’s bogus “helpless standard” came directly from Matter of A-B- — Sessions’s unethical, legally incorrect, and misogynistic attempt to write female domestic violence victims from Central America out of refugee protections as part of his White Nationalist agenda. Judge Gibbons’s opinion found persuasive U.S. District Judge Sullivan’s (D. D.C.) conclusion in Grace v. Whitaker that Sessions’s A-B- atrocity was “arbitrary, capricious, and contrary to law.”

This further confirms the problems of a politicized and weaponized Immigration Court system controlled by anti-asylum politicos. How many more “Marias” are out there who are arbitrarily denied protection by the Immigration Courts and the BIA, but lack the ability to obtain competent counsel to assist them and/or are not fortunate enough to have a Court of Appeals panel that takes their case seriously, rather than just “deferring” to the BIA? For example, the Fifth Circuit has “tanked” on the A-B- issue. And, today, the Trump regime is being allowed to turn away asylum seekers at the border in violation of law and without any meaningful opportunity whatsoever to present a claim.

Disgraceful as the BIA’s performance was in this case, worse happens every day in the broken Immigration Court system and the abusive, scofflaw enforcement system administered by the Trump regime. And those charged with putting an end to such blatant violations of law and human rights – the Article III Judiciary – have largely shirked their duty to put an end to this unconstitutional, illegal, unethical, and inhumane “bad joke” of a “court system” and to stop the regime’s illegal abrogation of U.S. asylum laws.

Due Process Forever!

PWS

05-19-20

JUSTICE PREVAILS AGAIN IN IMMIGRATION COURTS EVEN IN THE “POST-A-B-“ ERA — Outstanding Analysis By Judge Eileen Trujillo Of The U.S. Immigration Court In Denver, CO, Recognizes “Women In Mexico” As PSG, Finds Nexus, Grants Asylum, Distinguishes A-B-

JUSTICE PREVAILS AGAIN IN IMMIGRATION COURTS EVEN IN THE “POST-A-B-“ ERA — Outstanding Analysis By Judge Eileen Trujillo Of The U.S. Immigration Court In Denver, CO, Recognizes “Women In Mexico” As PSG, Finds Nexus, Grants Asylum, Distinguishes A-B-

Congrats to NDPA warrior (and former EOIR JLC) Camila Palmer of Elkind Alterman Harston, PC in Denver who represented the respondents! Great representation makes a difference; it saves lives!

Conversely, the DOJ EOIR policies that inhibit representation, discourage full and fair hearings, and hinder sound scholarship by U.S. Immigration Judges, thereby making it more challenging for judges to produce carefully researched and written decisions (rather than haphazard contemporaneous oral decisions which often lack professional legal analysis) are a direct attack on Due Process by Government organizations that are supposed to be committed to upholding and insuring it.

Go to this link for a redacted copy of Judge Trujillo’s decision:

Asylum grant PSG Mexican women

U.S. Immigration Judges are not trained in how to recognize and grant asylum cases (or anything else, favor that matter — judicial training was a recent “casualty” of budget mismanagement by DOJ & EOIR). The BIA, always reluctant to publish “positive precedents” on asylum, is keeping a low profile after its emasculation by former AG Sessions. So these cases actually become “de facto precedents” for advocates to use in assisting Immigration Judges and DHS Assistant Chief Counsel in “doing the right thing” in critically examining and completing cases efficiently in the face of the “hostile environment” for Due Process and cooperation in court that has been created by EOIR and DOJ.

It’s a huge “plus” that Judge Trujillo was familiar with and used Judge Sullivan’s outstanding opinion in Grace v. Whitaker which “abrogated” (in Judge Trujillo’s words) or “dismantled and discredited” (my words) Sessions’s biased and legally incorrect decision in Matter of A-B-. Shockingly, during the recent FBA Asylum Conference in New York, Judge Jeffrey Chase and I learned from participants that some U.S. Immigration Judges weren’t even aware of Grace v. Whitaker until counsel informed them! Talk about a system in failure! But, the “bright side” is once aware of the decision, Immigration Judges almost everywhere reportedly were appreciative of the information and eager to hear arguments about how its reasoning applied to the cases before them.

It’s important to remember that in the perverse world of today’s EOIR, fairness, scholarship, teamwork, respect, and correct decision-making — in other words, Due Process of law — have been replaced by expediency, focus on “numbers,” churning out orders of removal, and assisting DHS with its “gonzo” and ever-changing enforcement efforts. What real court operates as an adjunct of the prosecutor’s office? Well, that’s what happens in most of the third word countries and authoritarian states that send us refugees. But, in the United States, courts are supposed to operate independently of the prosecutor.

That’s why EOIR, in its present form of a “captive” highly politicized immigration enforcement organization “must go” and be replaced by an independent Article I Court. Until then, everybody who relies on this system, including ironically not only individuals, but DHS enforcement, Article III Courts, and the Immigration Judges and BIA Judges themselves, will continue to suffer from the dysfunction created by “malicious incompetence” and “Aimless Docket Reshuffling.”

Thanks again and congrats to Camila for adding to the growing body of correct asylum jurisprudence available on the internet for all to use. Just think what could be accomplished if we had a Government devoted to “using best practices to guarantee fairness and Due Process for all!”

PWS

03-21-20

EOIR & USCIS ISSUE COURT-REQUIRED NEW GUIDANCE ELIMINATING LARGE PORTIONS OF SESSIONS’S BOGUS GUIDANCE IN DOMESTIC VIOLENCE/GANG RELATED CASES — Advocates Should Be Pushing This At All Levels In All Forums!

Dear Colleagues,

Following up on U.S. District Court Judge Emmet Sullivan’s powerful decision in Grace v. Whitaker, which found major elements of Matter of A-B- and the related USCIS Policy Memorandum to be inconsistent with the law, we are pleased to share the instructions which the Court ordered USCIS and EOIR to provide asylum officers and immigration judges conducting credible fear interviews and reviews of negative credible fear findings.  This guidance takes immediate effect and should be relied upon and cited to by advocates.

The Court declared that the following policies contained in Matter of A-B- and the related USCIS Policy Memorandum are arbitrary, capricious, and in violation of immigration law as applied to credible fear proceedings:

1.     The general rule against claims relating to domestic and gang violence.

2.     The requirement that a noncitizen whose claim involves non-governmental persecutors “show the government condoned the private actions or at least demonstrated a complete helplessness to protect the victim.”

3.     The Policy Memorandum’s rule that domestic violence-based particular social group definitions that include “inability to leave” a relationship are impermissibly circular and therefore not cognizable.

4.     The Policy Memorandum’s requirement that individuals must delineate or identify any particular social group in order to satisfy credible fear based on the particular social group protected ground.

5.     The Policy Memorandum’s directive that asylum officers should apply federal circuit court case law only “to the extent that those cases are not inconsistent with Matter of A-B-.”

6.     The Policy Memorandum’s directive that asylum officers should apply only the case law of “the circuit” where the individual is “physically located during the credible fear interview.”

While the Court’s order is limited to credible fear interviews in the expedited removal process, we urge advocates to use the Court’s reasoning in merits hearings before the Asylum Office and the Immigration Court, and on review before the BIA and circuit courts. Of the six findings above, only (4) and (6) are specific to the nature of the credible fear process, which is intended to be a low screening standard, providing the applicant with the benefit of the most advantageous case law. The other four findings (1,2,3, and 5) are more broadly based on Judge Sullivan’s interpretation of key statutory terms of the refugee definition, and his reasoning should be adopted and argued in the merits context as well.

Best,

Karen

Karen Musalo

Bank of America Foundation Chair in International Law

Professor & Director, Center for Gender & Refugee Studies

U.C. Hastings College of the Law

200 McAllister Street

San Francisco, CA 94102

tel: 415 565-4720 fax 415 581-8824

musalok@uchastings.edu

SSRN Author Page:  http://ssrn.c

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

Thanks, Karen. The actual guidance memos can be found at the link in Karen’s e-mail.

The EOIR “guidance” asserts that it applies only in credible fear reviews. While technically true, as Karen more accurately points out, the rationale of Judge Sullivan’s findings 1, 2, 3, and 5 should apply equally in removal proceedings. Even if the “captive” BIA won’t listen the real, Article III Courts should. That’s why it’s critical to challenge all A-B- denials in the Circuits. And, as I noted before, no Circuit has yet had an opportunity to review A-B-.

Most, if not all, cases denied on the basis of Sessions’s flawed decision in Matter of A–B– should be subject to remand from the Article IIIs. Just another example of how Sessions continues to harm individuals who deserve Due Process, while contributing to the largely DOJ-made backlog and wasting the time of the Article III Courts.

PWS

01-13-19

Chico Harlan & Stefano Pitrelli report for WashPost:

🇺🇸 Due Process Forever!

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Here are some relevant portions of Judge Sullivan’s opinion in Huisha-Huisha v. Mayorkas, D.D.C., Nov. 22, 2022, to keep in mind as the bogus claims and misleading reporting continue to mushroom ahead of the Dec. 22 (Wednesday) date for re-establishing the rule of law @ our Southern Border:

🇺🇸 Due Process Forever!

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🇺🇸Due Process Forever!

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Tell President Biden: Restore the right to asylum!

”BIDEN DOJ HALL OF SHAME” — Those Who Have Defended or Enabled Stephen Miller’s “Crimes Against Humanity:”

Merrick Garland, Attorney General

Lisa Monaco, Deputy Attorney General

Vanita Gupta, Associate Attorney General

Kristen Clarke, Assistant Attorney General, Civil Rights

Elizabeth Prolager, Solicitor General

🇺🇸Due Process Forever!

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Here’s the latest analysis of Garland’s ongoing abuse of his office from Austin Kocher, PhD, at TRAC:

🇺🇸 Due Process Forever!

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Due Process Forever!

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