"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
As severe weather patterns intensify, climate change will continue to displace communities across the globe. The World Bank estimates that there could be more than 143 million people internally displaced by slow-onset disasters in Latin America, Sub-Saharan Africa, and Southeast Asia by 2050. Populations with the least capacity to respond and adapt to a changing climate are more likely to suffer from the worst impacts.
States have a responsibility to ensure that individuals displaced because of climate change impacts are treated with respect and dignity. Yet international law does not recognize climate displacement as a subject warranting special protection or status. The 1951 Refugee Convention only recognizes persecution on account of five protected grounds (nationality, race and ethnicity, political opinion, religion, or particular social group), leaving those fleeing environmental disasters under circumstances not attributable to those specified reasons without protection.
Despite the urgent need for action, governments have been slow in creating pathways to protect climate-displaced people. If anything, increasing militarized approaches to migration flows and national security rhetoric has permeated mainstream discourse on climate migration. Discussions about “economic migrants” and which groups are deserving of international protection distract from real solutions that can provide relief and uplift the dignity of individuals displaced by climate. Also concerning is the fact that authoritarian governments have leveraged the ongoing United Nations Climate Change Conference (COP27) to either greenwash their image or exclude environmental advocates from accessing the climate talks.
Although climate migration is not on its official agenda, COP27 offers an opportunity for international climate negotiators and advocates to tackle the issue in three ways: (1) promote changes in domestic legal frameworks that will protect internally displaced populations; (2) raise awareness of how existing legal protections under asylum frameworks intersect with climate change; and (3) guarantee climate finance pledges are met by mobilizing funds dedicated to adaptation and mitigation.
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Read Jeffrey’s and Camila’s article “at the link.” Another classic example of timely “practical scholarship” written in plain English and accessible to a wide range of readers.
It’s discouraging, but not surprisingly, that nations, including ours, wasting billions on gimmicks to AVOID their obligations under the existing, inadequate Geneva Refugee Convention and Protocol are not anxious to engage on the real effects of climate migration. But individuals facing death under sand or under water as our climate changes are NOT going to go quietly and submissively into the night.
Nations, like ours, whose politicians think that power, cruelty, denial, and misinformation — the “head in the sand” approach — will win the future eventually must confront the realities of climate change and human migration whether they find it convenient and politically advantageous or not. On the other hand, those nations that are able to recognize both the power and inevitability of migration, and are smart enough to “go with the flow,” rather than futilely attempt to “dam it up” or divert it will eventually gain the upper hand.
Merrick Garland was recently confirmed as attorney general, bringing back a much-needed sense of impartiality and integrity to the Justice Department and the immigration court system it oversees. In this sense, his appointment is critical because, less than two months into his presidency, Joe Biden is already confronting the reality that meaningful immigration policies don’t always match up with wishful campaign promises. As thousands of migrants, especially unaccompanied minors, continue to seek safety and opportunity in the United States; as changes to interior enforcement and immigration prosecutions are slow to implement; and as advocates apprehensively watch detention facilities expand and COVID-related border closures continue, immigration remains the most divisive of all political conversations.
But rather than be overwhelmed by the challenge, perhaps there is another place to start, one that has only been alluded to in Biden’s plans and never taken up by Congress: If we want to re-build a better, stronger immigration system, we need to start with immigration courts. In a Just Security piece published in November, Gregory Chen eloquently laid out the devastating harm caused by the Trump administration’s politicization of the immigration judiciary, pointedly describing the courts as “strained to the breaking point under a massive backlog of cases and a systemic inability to render consistent, fair decisions.”
Courts are the backstop of every legal system. Their most basic function is to ensure that applications of the law are fair, not arbitrary and capricious. In the U.S. immigration system, however, most of the oversight has fallen on administrative courts housed within the Department of Justice. As Chen argues, the courts “operate under the jurisdiction of a prosecutorial agency, the Department of Justice, whose aims and political interests often conflict with the fundamental mission of delivering impartial and fair decisions.” Further exacerbating the tension, beginning in 1996 Congress expanded the executive branch’s already far-reaching power on immigration by starting a 30-year trend of limiting the federal courts’ jurisdiction over immigration issues; efforts that were only reinforced by the 2002 Homeland Security Act and 2005 REAL ID Act. The recently introduced, White House-backed, U.S. Citizenship Act of 2021 only slightly restores judicial oversight, allowing district courts to review allegations of violations of certain portions of the Act. For the foreseeable future, immigration courts remain under the direction of the Executive Office for Immigration Review (EOIR), a small and chronically under-funded sub-agency of the Justice Department, operating out of an office building in Falls Church, Virginia, removed from DOJ leadership in Washington, D.C.
While they by no means caused the issues that plague the EOIR today, the Trump administration’s policies put the proverbial final nail in the coffin of a quasi-functioning system, decimating the daily functions of immigration courts and showing how they can be used as political tools. The overwhelming backlog of cases –nearly 1.3 million at last count across all courts– exacerbated by the enforcement-first agenda, means that immigration judges have enormous caseloads with few support staff to help them manage the work. In addition, policies by the Trump administration removed judicial discretion from judges, prevented them from using simple control tools to manage their dockets, tied performance reviews to how many cases they closed out within a year while making it harder to avoid entering deportation orders, and created new administrative law to further restrict benefits a judge can grant. When the immigration bench pushed back, leadership dismantled the union that represented them. Hiring and rewards practices have politicized the bench even more. As Chen noted in his piece, the Trump administration “stacked the courts with appointees who are biased toward enforcement, have histories of poor judicial conduct, hold anti-immigrant views, or are affiliated with organizations espousing such views.”
This is not the hallmark of a functional legal system, and its ripple effects undermine our immigration system as a whole.
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Otherwise, we will prolong a situation that would be comical were the implications not so devastating. Returning to the individuals stranded in Mexico due to the MPP, for example – as of the time of this writing, they are being registered into a database and given COVID tests by various international organizations. Once cleared to enter the United States, they will fill out a form, by hand, which is handed to the Customs and Border Protection official. The CBP officer, overwhelmed and under-resourced as they are at the border, will then transmit this paper form to the immigration court officials, who will enter it into their systems and change the case to the appropriate court. In New York, these courts do not even have sufficient staff to assign one clerk, who also doubles as an administrative assistant, to each judge. As a result, calls to the court frequently go unanswered and are rarely returned. Furthermore, increasingly, understaffing has led to misplaced evidence submissions for pending cases. The responsibility to ensure that all of these obstacles are overcome will lie on the individual who just, finally, entered the United States.
An independent immigration judiciary, with its own resources and free from political oversight, is the only long-lasting remedy to this dysfunction. In the meantime, the agency, much like the DOJ it depends on, is in desperate need of thoughtful, measured leadership that values due process and impartiality and supports existing staff as it continues to navigate the complex problems posed by our immigration laws. There must be trained, dedicated staff ensuring efficient management of the court’s dockets and administrative systems so that the individuals whose cases are going through the courts understand what is required of them. Only then will the immigration system reflect American notions of justice, and only then can we begin to rebuild a strong, sustainable immigration system that meets our goals for foreign policy, national security, and domestic prosperity.
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Read Camille’s full article at the link.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Not rocket science! Just following the due process clause of the Constitution; implementing asylum laws in the fair, generous, and practical way they were intended; replacing today’s failed EOIR administrators, the entire BIA, and many Immigration Judges responsible for “asylum free zones” with competent, expert professionals; and treating migrants, regardless of race, color, creed, or gender, as human beings!
If you wonder why Judge Garland is continuing to run “star chambers” masquerading as “courts” @ DOJ, join the club!
“Justice” Star Chamber Style
As cogently described by my friend and fellow panelist at the Hispanic National Bar Association last night, Claudia Cubas, Litigation Director at the CAIR Coalition, in what other “court” system in America are you not entitled to a timely copy of your client’s file to prepare for litigation and file applications (often with artificially truncated “filing dates” to promote “summary denials”)? Making the Immgration Courts functional is neither impossible nor that complicated. All it takes is competent leadership with the guts to “clean house” at EOIR and “kick some tail” at an intransigent, contemptuous, and out of control DHS.
Claudia Cubas Litigation Director CAIR Coalition Photo: berkleycenter.georgetown.edu
So why is Judge Garland investing in the continuing, deadly “Clown Show,”🤡🦹🏿♂️☠️⚰️ rather than getting going on bringing “his” courts into compliance with due process? It’s not even that hard to get the right experts who could do the job in place, at least on a temporary basis.
Judge Merrick B. Garland Official White House Photo Public Realm
If Judge Garland won’t do his job, what can we do to force change and rationality into this totally dysfunctional, stunningly unfair, scofflaw system? Here are some ideas from last night’s panel at the Hispanic National Bar Association (“HNBA”):
Apply for jobs at EOIR (sure, they are hidden away on “USA Jobs,” there is no effort whatsoever on Judge Garland’s part to diversify or recruit real experts, and the selection process is opaque). But, better judges, with actual experience representing migrants (particularly asylum seekers) in court, and some compassion and human understanding along with expertise, are the key to fixing the system. It’s particularly critical for minority attorneys (now a relative rarity in the “Immigration Judiciary”) to apply in overwhelming numbers and get into the system to start forcing change from within (“bore from within,” as Dan Kowalski says). Can’t complain about who’s selected if you don’t apply and compete!
Raise hell with your legislative representatives! As long as Immigration Court reform is #27 on their radar screens, the problem won’t get addressed.
Get involved with educating the public about the ungodly, un-American disaster in the Immigration “Courts” that don’t fit any normal definition of “courts” (except “kangaroo courts”). Join and support advocacy and social service groups; write op-eds; write for blogs; speak at community and church meetings; run for political office!
Sue, sue, sue, sue! Make sure that the systemic mistreatment of migrants and people of color in Judge Garland’s Immigration Courts are front and center in the Article III Courts and that we are making an historical record of where Federal Judges and public officials stand on the most critical racial and social justice issue in America today. Argue the very obvious Constitutional violations present in a system run by prosecutors, where judges can be neither fair nor impartial, and where many lack even minimal competence and qualifications for their “judicial” positions. Take the fight to the broken and dysfunctional DOJ in the only way they understand, by whacking them down in court! Make Judge Garland face and “own” his disgracefully failed, unprofessional “courts” by making it the #1 issue occupying his time. Make how he deals with the Immigration Courts his overriding “legacy” for better or worse!
Remember, GOP politicos like to use immigration as a “prop” to spread their message of racial vilification and dehumanization of the “other” because it “fires up” their White Nationalist base! By contrast, Dem politicos want to make immigration go away and pretend like the mess in the Immigration Courts doesn’t exist, can’t be fixed, isn’t that important (as in lives of migrants and asylum seekers, mainly of color, don’t count), and isn’t killing people! Don’t let either party get away with their respective dishonest, “designed for failure,” approaches!
Humanity and the future of American democracy are at stake here! They might be “Clown Courts” 🤡 but the damage they daily inflict on human lives ☠️⚰️ and values 🤮 is no laughing matter!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! Put an end to deadly “Clown Courts” 🤡 now!
Currently before the Supreme Court is a little-noticed immigration case with profound significance. Sanchez v. Mayorkas offers the Biden administration an opportunity to make major progress, without waiting for legislative action, on one of its central humanitarian goals – providing durable status to long-resident noncitizens.
A straightforward change in the government’s policy and its litigation stance could help remove a barrier blocking critical relief to several tens of thousands of noncitizens who have resided in the United States with official government permission under Temporary Protected Status (TPS). Because of a longstanding but misguided agency reading of the Immigration and Nationality Act (INA), these noncitizens are stuck in limbo and practically unable to get the permanent resident status for which they are independently eligible based on family or employment relationships. Those most affected are TPS recipients married to U.S. citizens. The case turns on a highly technical question of statutory interpretation over which six courts of appeals have so far split evenly, but the human stakes are substantial, and a change of position by the administration would have significant impact.
The plaintiff TPS holders in Sanchez may well win the case based on the plain language of the relevant statutes, as ably argued in their brief and by supporting amici. But until now, the government has argued, to the contrary, that the language of the statute compels the agency’s current restrictive interpretation. This essay contends that the administration could provide crucial support for the TPS holders under a different legal framework that, for understandable reasons, neither side has given much emphasis.
The alternative approach is for the administration to acknowledge – in light of the statutory text, the deep and abiding circuit split, and a surprising November ruling by the Justice Department’s own Board of Immigration Appeals (BIA) – that the statutory language is ambiguous. On that foundation, the government has the discretion to adopt a new (and better) interpretation that would permit eligible TPS recipients to make use of adjustment of status to obtain a green card.
In 2019, the Trump administration entrenched the restrictive interpretation through an obscure process rather clearly invoked to complicate a later policy change. The Biden administration should nonetheless undertake immediate reconsideration of the government’s position and seek to defer the pending Supreme Court briefing schedule to allow that agency process to proceed. A more refined position by the new administration would promote family unity and avoid compelling spouses of U.S. citizens to return to the very country from which they have escaped in order to seek the immigrant visa for which they already qualify.
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Read the rest of David’s article, explaining his suggestions, at the link.
This issue came up before me at the Arlington Immigration Court. After holding “oral argument,” I simply followed the statutory language and granted adjustment of status to the TPS holder.
In that case, following the literal statutory language produced the most reasonable policy result. As I pointed out to DHS counsel, the mis-interpretation they were pushing would not only violate the statutory language, but also result in a long-time TPS resident with work authorization who was paying taxes and supporting an American family being deprived of the legal immigration status to which he was entitled.
The result desired by DHS would have been highly nonsensical. Why make individuals who fit the legal immigration system established by Congress, and who actually have been contributing to our nation and our economy for many years, remain in limbo? In many cases, lack of a green card limits the both the earning and career potential of such individuals, plus adding unnecessary stress and uncertainty to the situation of their U.S. citizen family members.
The DHS reserved an appeal. I don’t believe it was ever pursued, however. And, of course, as a mere Immigration Judge (even before the position was “dumbed down” by the Trump DOJ) my decision only affected that particular case.It wasn’t a precedent.
But, it does illustrate my oft-made point that having “practical scholars” in immigration and human rights as Immigration Judges, BIA Judges, Article III Judges, and policy officials would be a huge positive change, making our immigration system fairer, more efficient, and more responsive to our national needs, even without major legislative changes. Also, these adjustments could be handled at USCIS, promoting uniformity while eliminating unnecessary litigation from the bloated Immigration Court docket.
Certainly, both the Solicitor General’s Office and the Office of Immigration Litigation (“OIL”) urgently need new leadership with practical experience in immigration and human rights policies and litigation. It’s definitely out here in the private/NGO/academic sectors. The only question is whether Judge Garland and his team will go out and get the right talent in the key jobs.
Talk about taking a potential win-win-win-win and converting it to a lose-lose-lose-lose! But, the latter was a “specialty” of the Trump regime and their DOJ.
As David astutely points out, cases such as Sanchez v Mayorkas might appear “hyper-technical” to some; but, to those who truly understand our current broken immigraton system, they have huge implications. We need the expertise of the “practical scholars” of the NDPA throughout our governing structure — starting, but not ending, with a complete “housecleaning” at the disgracefully dysfunctional EOIR.
The only question is whether Judge Garland, Secretary Mayorkas, and the others in charge of the Government’s immigraton bureaucracy will (finally, at long last) bring in the right talent to solve their problems!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”Recent Barr Appointee Prepares to Take Bench Fangusu, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
Gregory Chen @ Just Security lays bare the unrelenting nightmare @ EOIR:
The Trump administration has subjected America’s courts to extreme politicization and relentless assaults in the past four years. At the highest level, the deeply partisan battle over the Supreme Court confirmation of Justice Amy Coney Barrett transfixed the nation. But an even more radical transformation has been occurring in America’s immigration courts that has gone almost entirely unnoticed yet impacts hundreds of thousands of lives each year.
In a single term, Trump has filled the immigration courts with judges that hew to his anti-immigrant agenda and has implemented policies that severely compromise the integrity of the courts. Strained to the breaking point under a massive backlog of cases and a systemic inability to render consistent, fair decisions, the immigration courts require the urgent attention of the incoming Biden administration.
Most people apprehended by immigration enforcement authorities are removed from the United States without ever seeing a judge. The fortunate few who come before a judge are those seeking asylum or who need humanitarian relief that only an immigration judge can grant. Despite this critical role, these courts have suffered for years from underfunding, understaffing, and deep structural problems such as the fact that, unlike other courts, they operate under the jurisdiction of a prosecutorial agency, the Department of Justice, whose aims and political interests often conflict with the fundamental mission of delivering impartial and fair decisions. In recent years, the Justice Department has exercised its power to the maximal extent, stripping judges of fundamental authorities and rapidly appointing judges, to bend the courts toward political ends.
The intense public debates that accompany the Senate confirmation of Supreme Court nominees stand in sharp contrast to the lack of any public or congressional oversight into the appointments of immigration judges. During his time in office, President Donald Trump has appointed at least 283 out of a total of 520 immigration judges with no more fanfare than a public notice on the court’s website.
The Trump administration has not only chosen the majority of immigration judges but has also stacked the courts with appointees who are biased toward enforcement, have histories of poor judicial conduct, hold anti-immigrant views, or are affiliated with organizations espousing such views. Human Rights First found, for example, that 88 percent of immigration judges appointed in 2018 were former Department of Homeland Security (DHS) employees or attorneys representing the department.
Especially egregious are the appointments of the Chief Immigration Judge, who was previously the chief prosecutor for Immigration and Customs Enforcement and lacked any bench experience; the Chief Appellate Judge, who was a Trump advisor on immigration policy and a former prosecutor; and an immigration judge who worked for the Federation for American Immigration Reform, a known hate group. With the pace of appointments accelerating, it’s likely that even more judges conforming to that mold will be appointed before the administration’s term ends. In each of the most recent fiscal years, the administration has hired progressively more judges: 81 in 2018; 92 in 2019; and 100 in 2020.
Packing the Board of Immigration Appeals
The idea of packing the Supreme Court was heavily debated in the run-up to the election, but court-packing has already occurred on the Board of Immigration Appeals — the immigration appellate body — with the Trump administration’s addition of six new positions that raised the total size of the board from 17 to 23. The two regulations expanding the board were promulgated in rapid succession, each on an expedited basis that afforded no opportunity for public comment.
The expansion of the Board was another brazenly transparent move to fill the bench with judges unsympathetic to those appearing before them. Data from 2019 reveal that six immigration judges whom Attorney General William Barr elevated to serve as Board members had abysmal asylum grant rates — an average of 2.4 percent — that were far below the norm of 29 percent. Two of those judges denied every asylum case that year. In a manner of speaking, these judges never met an asylum seeker they liked.
The next year, Justice Department leadership tried to cull the nine appellate judges appointed by previous administrations by offering them buyout packages if they resigned or retired early. None took the deal, and thereafter, changes were made to their positions to make them more vulnerable to pressure from above and further intimidate them into leaving.
A judicial system that is buffeted so wildly by political waves cannot retain the public’s trust that it will deliver fair decisions. A similar attempt made at the end of the George W. Bush administration resulted in a hiring scandal that rocked the Justice Department. An oversight investigation found its leadership had violated federal law by considering immigration judge candidates’ political and ideological affiliations. Monica Goodling, Attorney General Alberto Gonzales’s White House Liaison, and other department staff had improperly screened candidates based on their political opinions by examining voter registration records and political contributions and asking about political affiliations during interviews. Now, at the request of eleven democratic senators, including Senator and Vice President Elect Kamala Harris, the Government Accountability Office has launched an investigation into the Trump administration’s politicization of the immigration courts.
Political interference with the immigration courts rises to the very top of the Department of Justice. Both Attorneys General Jeff Sessions and Barr vigorously exercised an unusual authority that enables them to overturn and rewrite the Board of Immigration Appeals’ decisions. In a series of opinions, Sessions divested judges of the powers they need to control their dockets, such as the authority to administratively close, continue, or terminate cases that are not suitable or ready for hearing. (Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018); Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (A.G. 2018); Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018).)
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Read Gregory’s complete article at the link.
Have any doubt that EOIR is a deadly “hack haven?” Here’s an article about a Barr “judicial” appointee with no immigration experience. What’s his “claim to fame?” He’s a controversial state criminal judge from Illinois who “retired” several years after being rated “unqualified” for further judicial service by the Chicago Council of Lawyers (although other groups recommended him.)
According to a recent complaint filed with EOIR by an coalition of an astounding 17 legal services and immigration groups in the San Francisco area:“In unusually aggressive language, the coalition accused Ford of ‘terrorizing the San Francisco immigrant community,’ alleging that he dispensed ‘racist, ableist and hostile treatment of immigrants, attorneys and witnesses.’”
With tons of exceptionally well qualified legal talent out there in the New Due Process Army (“NDPA”) who are experts in immigration and asylum laws and who have demonstrated an unswerving career commitment to scholarship, due process, fundamental fairness, equal justice, professionalism, and treating all humans decently, there is no, that is NO, excuse for tolerating clowns like Ford in perhaps the most important judicial positions in the Federal System. Judges at the “retail level” of our system who decide hundreds of thousands of cases annually and exercise life or death authority over large segments of our population and set the tone and are the foundation for our entire justice system!
Enough of the malicious incompetence, institutionalizedracism, ignorance, intentional rudeness, wanton cruelty, worst practices, disdain for scholarship, dehumanization, destruction of the rule of law, hack hiring, and systemic trampling of human decency and human dignity! EOIR is an ongoing“crime against humanity” perpetrated by the Trump regime under the noses of Congress and the Article III Courts who have undermined their own legitimacy by letting this stunningly unconstitutional travesty continue.
The Biden-Harris Administration must fix EOIR immediately! It’s not rocket science! The talent to do so is ready, willing, and able in the NDPA!
There is no “middle ground” here, and the status quo is legally and morally unacceptable! If they don’t fix it, the incoming Administration will rapidly become a co-conspirator in one of the darkest and most disgraceful episodes in American legal history. One that literally poses an existential threat to the continuation of our nation!
This isn’t a “back burner” issue or a project for “focus groups.” It’s war! And, we’re on the front lines of the monumental battle to save the heart, soul, and future of America and our judicial system! Failure and fiddling around (see, Obama Administration) aren’t options!
U.S. law and the United Nations Convention and Protocol Relating to the Status of Refugees also require the United States to accept political asylum claims presented at the U.S. border and to not return applicants to a place where their “life or freedom would be threatened.” These conditions were, of course, not met with respect to El Salvador, Guatemala, and Honduras. The Trump administration later ceased referring to the agreements with these Central American countries as “Safe Third Country” agreements and used the term “Asylum Cooperation Agreements,” perhaps in a cynical attempt to avoid U.S. law and regulations.
What Murphy’s Complaint Reveals
According to his whistleblower complaint (footnote 1 at pages 9-10) and earlier anonymous reports he filed with the DHS Office of Inspector General, career DHS intelligence official Brian Murphy presented intelligence reports to political appointees in DHS which found “high levels of corruption, violence, and poor economic conditions” in all three countries. It was no surprise that Murphy’s complaint recounts that in December 2019, as the Trump administration was sending the first asylum seekers to Central America, then Acting Assistant Secretary of DHS Ken Cuccinelli ordered Murphy to change those reports.
According to Murphy, Cuccinelli not only claimed the reports must be false, but also attributed them to forces within the intelligence community hostile to the President. He accused “unknown ‘deep state intelligence analysts’ of compiling intelligence information to undermine President Donald J. Trump’s policy objectives with respect to asylum.” According to Murphy, Cuccinelli further ordered him to identify those “who compiled the intelligence reports and to either fire or reassign them immediately” (see page 9 of Murphy’s complaint).
With respect to the policy rationale to support spending millions of dollars on a border wall, Murphy’s complaint recounts how he was asked to reinterpret and rewrite intelligence reports about Known or Suspected Terrorists (KSTs) attempting to enter the United States from Mexico to fit the White House’s policy arguments about the need for a wall. In several meetings during 2018 and 2019, Murphy delivered intelligence to then DHS-Secretary Kirstjen Nielsen and other officials that the actual number of individually-documented KSTs was very tiny. Despite Murphy’s briefings, Nielsen and other officials in DHS issued documents and gave congressional briefings in which they greatly exaggerated the numbers, inflating a figure of 3 KSTs to over 3,000. (Murphy’s attorney has provided an amended complaint to correct an error in the original version of these events.) At one meeting in December 2019, after Murphy contradicted his superiors regarding the number of KSTs crossing into the United States, he was removed from the meeting by now interim DHS Secretary Chad Wolf (as noted in his amended complaint at pages 5-8).
Brian Murphy’s Whistleblower complaint confirms what the public has seen so often: White House officials and political appointees in federal agencies willing to hide carefully investigated and proven facts in order to substitute lies more in keeping with White House policy goals.
DHS Secretary-designate Chad Wolf is supposed to testify before a House panel later this week. Let’s hope he gives truthful answers to all the questions raised in Brian Murphy’s complaint.
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Read the rest of Susan’s article at the link.
Hey, 3 known “suspected” terrorists vs 3,000!What’s the big deal? They both contain the number “3.”
This is the type of demonstrable nonsense that the Supremes’ majority disingenuously accepts in letting the regime declare bogus “immigration emergencies” and stomp all over the legal and constitutional rights of asylum seekers! Real people die, get tortured, and have their lives destroyedbecause elitist judges have removed themselves from humanity and kowtow to a scofflaw, corrupt, immoral Executive. This is what a failing democracy and a complicit judiciary look like.
I appreciate Susan’s optimistic hope in the last paragraph. But, the chance “Wolfman,” an “illegal,” will tell Congress the truth under oath is zero.
All three branches of our failing Government have conspired to insure that his lies and illegal actions will have no meaningful consequences for him or any of his co-conspirators. Only the health, safety, and lives of his, Trump’s, Miller’s, Barr’s, Session’s, and “Cooch’s” victims are on the line.
In the meantime, refugees entitled to protection under U.S. and international law continue to be returned to dangerous and deadly conditions in the Northern Triangle without due process or indeed any process whatsoever. Indeed, with the help of disingenuous Federal Courts, the regime has effectively repealed U.S. protection laws without enacting a single piece of legislation!
One of many unfortunate “practical consequences” of the Article IIIs overall lack of critical review: In addition to having to fight the unethical and often frivolous litigation “strategies and gimmicks” of the regime and the DOJ, advocates, often serving pro bono or low bono, now bear the burden of preparing their own “Country Reports” to rebut the falsified, misleading, and highly politicized versions of country conditions presented in DOS “Country Reports.”
The latter used to be considered the “international gold standard” for determining country conditions in asylum and refugee adjudications (although true expert judges and adjudicators still viewed them critically). Now, they are little more than “political propaganda screeds” for a corrupt, White Nationalist, bigoted regime.
But, most Article IIIs have been intentionally or negligently “asleep at the switch,” still disingenuously “deferring” to these deeply defective and intentionally misleading, sometimes fictionalized, accounts. For example, almost any legitimate asylum expert would say that Jeff “Gonzo Apocalypto” Sessions’s largely fictionalized account of conditions for women in El Salvador, presented in Matter of A-B-, 27 I&N Dec. 316 (AG 2018), bears little resemble to reality.
Of course, the political branches have authority to set policy — but only within Constitutional and legal limits. Clearly, that authority to direct the activities of civil servants does not include authority to ignore facts and create false narratives in support of overtly racist, religiously bigoted, or improperly politically punitive agendas. Any Federal Judge who looks the other way when such overtly invidious objectives and motives are at work is derelict in his or her duty.
Our democracy is in deep trouble. And, to get it fully functioning and finally achieve the promise of equal justice under law, we eventually will need a better qualified Article III Judiciary.
The sooner that process starts, the better. It will take years or even generations to reform the life-tenured judiciary and get better qualified women and men on the bench. Judges who actually reflect the diversity of America and are unswervingly committed to equal justice for all under our laws.
We need Federal Judges, at all levels from the Supremes to the Immigration Courts, who actually know and understand asylum and human rights laws and their human dimension. Judges who have the courage and integrity to stand up for the rights of all persons for due process, fundamental fairness, and to be treated with human dignity, free of the overt racist bias demonstrated by Trump, Miller, and others.
In the end, the rights of foreign nationals to be treated as “persons” under our law are all of our rights! The dehumanization and “Dred Scottification” of asylum seekers by the regime and the Federal Courts diminishes each of us, including those complicit “go along to get along” judges who fail to see their own humanity in the faces and lives of those they oppress and fail to protect.
For now, they are largely getting away with it. But, eventually, somewhere down the line, there will be a “judgement of history” for their inhumanity and dereliction of duty. Of that, I am certain!
The Trump administration’s novel COVID-19 border ban invokes public health authority to erect a shadow immigration enforcement power in violation of the Refugee Act, legal safeguards for unaccompanied minors, and fundamental procedural rights. Relying on an obscure 1944 provision that provides no authority for immigration removals, the Centers for Disease Control purports to authorize summary Border Patrol expulsions of asylum seekers.
On March 20, the Centers for Disease Control (“CDC”) issued a largely unnoticed but sweeping order authorizing the summary expulsion of noncitizens arriving at the border without valid documents. The Order operates wholly outside the normal immigration removal process and provides no opportunity for hearings or assertion of asylum claims. It deploys a medical quarantine authorization to override the protections of the immigration and refugee laws through the use of an unreviewable Border Patrol health “expulsion” mechanism unrelated to any finding of disease or contagion.
How the COVID-19 Expulsion Policy Works
The CDC Order is based on an emergency Department of Health and Human Services (HHS) Interim Final Rule issued simultaneously with the Order under the authority of an obscure provision of the 1944 Public Health Service Act. Section 362 of that Act authorizes the Surgeon General to suspend “introduction of persons or goods” into the United States on public health grounds. Based on an unprecedented interpretation of the 1944 Act, the CDC regulation invokes the COVID-19 pandemic to redefine what constitutes “introduction of persons” and “introduction of communicable diseases” into the United States. It establishes a summary immigration expulsion process that ignores the statutory regime governing border arrivals and disregards the protections and procedures mandated by the 1980 Refugee Act and Refugee Convention as well as the special safeguards for unaccompanied minors under the Trafficking Victims Protection Reauthorization Act (“TVPRA”).
The CDC Order “suspending introduction of certain persons” applies to land travel from two countries, Mexico and Canada, and only to those noncitizens defined as “covered aliens.” That definition is unrelated to infection or disease. It includes only those who arrive by land without valid travel documents and immediately “suspends” their “introduction” for a renewable period of 30 days. In actuality the Order singles out those who seek asylum – and children – to order them removed to the country from which they entered or their home country “as rapidly as possible.” A recently leaked Customs and Border Protection directive makes clear that expulsion is the goal and that no process is provided.
The Order’s stated rationale is the risk alleged from “covered aliens” being crowded in “congregate settings.” The apparent justification for bypassing all legal protections and procedures is the CBP’s assertion that Border Patrol officers are “not operating pursuant to” their authority under the immigration laws.
This shadow immigration expulsion regime is not part of some coherent public health or safety plan to seal our borders or to diminish the risk of COVID-19’s introduction into the U.S. A web of other proclamations and restrictions leave open many avenues for other travelers to enter the United States. The risk of processing in congregate settings is a function of DHS’s own practices and policies; it is also not unique to landborders.
The CDC order is designed to accomplish under the guise of public health a dismantling of legal protections governing border arrivals that the Trump administration has been unable to achieve under the immigration laws. For more than a year, the administration has sought unsuccessfully to undo the asylum system at the southern border claiming that exigencies and limited government resources compel abrogating rights and protections for refugees and other noncitizens. The courts have rebuffed those attempts in critical respects. Now the administration has seized on a public health crisis to impose all it has been seeking – and more.
Unquestionably, the United States faces a pandemic of unknown scope and duration that has led to the greatest social and economic disruption and restrictions on personal movement in our lifetime. The hospital and healthcare system is under siege and threatened with collapse in some areas. Infected persons can be asymptomatic and may not be detected. The addition of contagious individuals can exacerbate spread of the virus, place additional strains on hospitals, pose dangers to healthcare workers and law enforcement officers, and increase the risk of infection for others.
But the COVID-19 ban is an act of medical gerrymandering. It is crafted to override critical legal rights and safeguards in singling out only those arriving at the border without authorization and deeming that class of people a unique and unmitigable public health threat. It tries to justify an end-run around congressionally mandated procedural rights and protections essential for refugees and unaccompanied minors and it does so to achieve an impermissible goal. What’s additionally shocking here: the statutory provision does not actually give the executive branch expulsion authority.
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Read the rest of Lucas’s “mini treatise” at the above link.
The law is clearly against Trump here, as Lucas so eloquently and cogently sets forth. But, that doesn’t necessarily mean much in an era of a feckless GOP-stymied Congress and an authoritarian-coddling righty Supremes’ majority led by Roberts and his four sidekicks.
The Supremes have delivered a strong message to the lower Federal Courts that Trump can do just about anything he wants to migrants. He just has to invoke some transparently bogus “national security” or “emergency” rationale for ignoring the Constitution and statutes.
It’s “Dred Scottification” in full force. Largely the same way the courts buried the rights and humanity of African Americans to enable a century plus of “Jim Crow” following the end of the Civil War. The “law of the land” just became meaningless for certain people and in certain jurisdictions. “Any ol’ justification” — states’ rights, separate but equal, no jurisdiction, etc. — was more than enough to read Africans-American citizens out of their Constitutional and other legal protections.
Don’t kid yourself. That’s exactly what Trump, the GOP, and the Supremes’ majority are up to here.
And, the amazing thing, here in 21st Century America, they are getting alway with it! In plain sight!
This November, Vote Like Your Life Depends On It! Because It Does!
“Back in August 2016, I wrote a lengthy post about the Third Circuit’s decision in Castro v. Department of Homeland Security, which held that recently-arrived undocumented immigrants, who are physically but not lawfully within the territorial United States, are not protected by the Constitution’s Suspension Clause—and therefore have no right to judicial review of their detention (or removal). Among many other problems with the Third Circuit’s analysis (see my original post for more), it created the anomalous result that enemy combatants held at Guantánamo, who have never set foot on U.S. soil, have more of an entitlement to judicial review than Central American women and their minor children in immigration detention in the United States who are seeking asylum (the petitioners in Castro).
The one saving grace to Castro was that it was only the law of the Third Circuit—Delaware, New Jersey, Pennsylvania, and, yes, the U.S. Virgin Islands. But a new case flying almost entirely under the radar in the Ninth Circuit has raised the same issue, and, thus far, has produced results no different from Castro. As I explain in the brief post that follows, if the Ninth Circuit disagrees with the Third Circuit’s deeply problematic reasoning in Castro, and believes that undocumented immigrants seeking asylum have a right to meaningful judicial review of their asylum claim before their removal, it needs to stay the removal of Vijayakumar Thuraissigiam, and use his case to give plenary review to the jurisdictional (and constitutional) question.
Thuraissigiam is a Tamil from Sri Lanka who was tortured in his home country by individuals he has identified as government intelligence officers before fleeing and eventually attempting to enter the United States—surreptitiously—across the U.S.-Mexico border. He was apprehended shortly after crossing the border (on U.S. soil), and then issued an expedited removal order after the government determined (with no judicial review) that he didn’t have a credible fear of persecution if returned to Sri Lanka.
Thuraissigiam attempted to challenge his expedited removal (and the credible-fear determination) through a habeas petition, and also sought an emergency stay of removal pending the disposition of his habeas petition. On March 8, the district court dismissed the petition for lack of jurisdiction, holding that the unavailability of habeas for non-citizens subject to expedited removal did not violate the Suspension Clause, largely because of Castro, the “analysis and ultimate conclusion [of which] are incredibly persuasive to the Court.” And because the court lacked jurisdiction over Thuraissigiam’s habeas petition, it also denied his motion for an emergency stay of removal.
Thuraissigiam appealed to the Ninth Circuit and renewed his motion for an emergency stay of removal. On March 12, a two-judge motions panel (Silverman & Christen, JJ.) denied the motion without meaningful discussion, leaving intact the original appellate briefing schedule (which would have opening briefs due on May 8). Of course, it’s possible that, once the case is fully briefed and argued before a merits panel, the Ninth Circuit will have a full opportunity to consider Castro‘s many flaws—and to hold that the Suspension Clause requires meaningful judicial review of these kinds of asylum claims, even when brought by undocumented immigrants who surreptitiously enter the United States.
The problem is that the case may well be moot by then, as, without a stay of removal, Thuraissigiam could well be sent back to Sri Lanka in the interim. And although Thuraissigiam sought reconsideration en banc, the Ninth Circuit’s General Orders only require such requests to be referred to staff attorneys, not to the full court. So it was, late last night, that the two-judge panel noted that the motion for en banc reconsideration was “referred to the Court” and denied.
That leaves emergency relief from Justice Kennedy (or the full Supreme Court) as the only remaining means for Thuraissigiam to stay his removal pending the Ninth Circuit’s resolution of the merits. (The Ninth Circuit could also expedite its consideration of the merits to moot the need for a stay, but it hasn’t yet…) Unless such relief is granted, the Ninth Circuit may never have a proper opportunity to decide whether or not to follow the Third Circuit down Castro‘s rabbit hole. And without such a ruling, it stands to reason that there will be more cases like Thuraissigiam’s, in which Castro serves to practically foreclose review, even if it’s not the law of the relevant circuit.
That’s no way to run a railroad, especially when the result is to send individuals back to countries in which they very well may credibly fear persecution (or worse).
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The only thing I take issue with in Steve’s outstanding analysis is his statement in the last paragraph “That’s no way to run a railroad!”
No, that exactly how Jeff “Gonzo Apocalypto” Sessions wants to and is running the “Deportation Railroad.”He’d love to apply “expedited removal” with no due process and no review to everyone in the United States.
I figure that once he gets done “crashing” the U.S. Immigration Court system, he’ll be asking Congress for “Universal Summary Removal,” having proved that due process for foreign nationals, or those believed by DHS to be foreign nationals, is simply too convoluted and impractical. This ties in nicely with the Administration’s view that the Due Process clause protects only the U.S. Government and Administration political officials.
Disturbingly, to date, I can find little evidence that the Courts of Appeals or the majority of the Supremes care about what happens to asylum applicants at the border and whether they are imprisoned or railroaded while here and sent back to death or torture abroad. As long as nobody on the Court of Appeals or nobody that they care about or consider human is affected, the Constitutional problems appear to be “out of sight, out of mind.”
