NGOs’ EXPOSE, DOCUMENT ICE’S LIES 🤥 TO CONGRESS ABOUT ATTORNEY ACCESS IN SCATHING DEMAND FOR ACCOUNTABILITY!

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https://immigrantjustice.org/sites/default/files/content-type/commentary-item/documents/2022-03/NGO-Rebuttal-to-ICE-Legal-Access-Report-March-22-2022.pdf

     MEMO

To: Professional staff for the House and Senate Appropriations Subcommittees on

Homeland Security

From: National Immigrant Justice Center, American Immigration Council,

ACLU of Southern California, Southern Poverty Law Center

Re: Concerns re Veracity of ICE’s February 2022 “Access to Due Process” Report Date: March 22, 2022

On February 14, 2022, Immigration and Customs Enforcement (ICE) presented a report entitled “Access to Due Process” to the Chairs and Ranking Members of the House and Senate Appropriations Subcommittee on Homeland Security [hereinafter “ICE Access Memo”]. The report was responsive to direction in the Fiscal Year (FY) 2021 Joint Explanatory Report and House Report accompanying the Department of Homeland Security (DHS) Appropriations Act, P.L. 116-260, requiring ICE to provide a report on attorney access to ICE facilities, the rate of denial of legal visits, and attorney/client communications. The ICE Access Memo largely focuses on FY 2020, i.e. October 1, 2019 through September 30, 2020.

Our organizations provide legal services or represent organizations that provide legal services to individuals in ICE detention facilities throughout the United States, and work closely in coalition with many other organizations that do the same. We write to share our concerns regarding the ICE Access Memo, which omits key facts and blatantly mis-states others. As recently as October 2021, more than 80 NGOs delivered a letter to DHS and ICE documenting a litany of access to counsel obstacles imposed by ICE on people in detention. The Southern Poverty Law Center (SPLC) and American Civil Liberties Union (ACLU) of Southern California remain in active litigation against DHS and ICE over allegations of access to counsel violations so severe that they violate the Constitution. Yet the ICE Access Memo ignores the lawsuits and the written complaints, instead presenting a generally positive picture of the state of access to counsel and legal services for people in ICE custody. That picture bears little resemblance to the reality our legal service teams and clients experience daily in trying to communicate with each other.

This memo addresses the key points made by ICE in its Access Memo, and provides narrative and illustrative details of the misrepresentations made throughout. The topics addressed include: I) Access to legal counsel generally; II) Access to legal resources and representation (through the provision of free phone minutes and video conferencing capacity); and III) ICE’s purported efforts to address issues arising with access to legal counsel.

Our legal and policy teams would also be interested in engaging in an informal briefing with

  

 your teams to discuss these issues in greater depth. Please contact Heidi Altman at the National Immigrant Justice Center at haltman@heartlandalliance.org to arrange the briefing.

I. There are widespread, significant challenges in access to legal counsel at ICE facilities nationwide.

In its Access Memo, ICE claims that: a) “noncitizen access to legal representatives . . . has continued unabated” during the COVID-19 pandemic; b) in FY 2020, “ICE’s inspections did not identify any legal representatives being denied access to their clients, as confirmed by the DHS [Office for Civil Rights and Civil Liberties] and other oversight bodies”; and c) “Facilities continue to provide noncitizens opportunities to meet privately with their current or prospective legal representatives, legal assistants, translators, and consular officials.”

These representations make glaring omissions regarding ongoing challenges to legal access, illustrated in great detail below. Further, we note that while ICE’s inspections (which DHS’s own Inspector General has found to be flawed) may not have specifically identified legal representatives being denied access to their clients, all of our organizations have experienced these denials to be pervasive.

a) Far from continuing “unabated,” access to counsel in ICE detention has been significantly hampered during the COVID-19 pandemic.

ICE claims that “noncitizen access to legal representatives remains a paramount requirement throughout the pandemic and has continued unabated.” This claim is either an intentional misrepresentation or reflects a severe turn-a-blind-eye-mentality within the agency. DHS and ICE face ongoing litigation brought by legal service providers forced to seek emergency relief to gain even minimal remote access to their clients during the pandemic. And just months ago, DHS Secretary Mayorkas and Acting ICE Director Johnson received a 20 page letter from dozens of NGOs outlining in great depth the “host of obstacles to attorney access that exist in immigration detention facilities nationwide.”1 Referring to the agency’s commitment to providing legal access as “paramount” thus clearly omits important content from this report to Congress, the body meant to provide oversight of the agency in the public interest.

As the pandemic began to spread in April 2020, SPLC was forced to seek a Temporary Restraining Order (TRO) to ensure adequate remote access to counsel in four ICE facilities in Louisiana and Georgia, and then had to file a motion to enforce that TRO. The case is still active today and the court is seeking additional information on the state of the government’s compliance with the TRO. In granting the TRO in June 2020, the D.C. District Court found in its

1 Letter to The Honorable Alejandro Mayorkas and Tae Johnson from the American Immigration Council, the American Civil Liberties Union, et al., Oct. 29, 2021, available here.

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 Memorandum Opinion that DHS’s response to the pandemic “with respect to increasing the capacity and possibilities for remote legal visitation and communication has been inadequate and insufficient.” The Court also found ICE to be imposing restrictions and conditions on remote legal visitation and communication that were “more restrictive than standards promulgated for criminal detainees.” The TRO, among other things, required ICE to ensure access to confidential and free phone and video calls to legal representatives, to develop a system to schedule such calls, to create troubleshooting procedures for technology problems, and to institute a system to allow for electronic document transfer.2

SPLC was not the only legal service provider forced to seek emergency relief in order to get access to its clients as the pandemic spread. Also still in active litigation is Torres v. DHS, a case brought by the ACLU of Southern California, Stanford Law School Immigrants’ Rights Clinic, and Sidley Austin LLP on behalf of the American Immigration Lawyers Association and Immigrant Defenders Law Center in December 2018. The Torres case alleges many of the same obstacles to counsel in three California facilities as those at issue in SPLC v. DHS, including limited access to legal phone calls, prohibitively expensive calling rates, limited access to confidential phone calls with counsel, and inadequate opportunities for in-person attorney-client visitation.3 In April 2020, the District Court for the Central District of California entered a TRO in response to the plaintiff organizations’ arguments that ICE’s COVID-19 policies had effectively barred in-person legal visitation, leaving no confidential means for attorneys and detained clients to communicate.

In granting the TRO in Torres v. DHS, as of April 2020, the Court found the plaintiffs “likely to succeed on the merits of their claims that [DHS’s] COVID-19 attorney-access policies violate their constitutional and statutory rights,” noting that the pre-pandemic conditions alleged by plaintiffs made out such a claim, and the post-pandemic restrictions were “far more severe.”4 The Court also noted: “Defendants’ non-responsiveness to Plaintiffs’ factual assertions is telling.

2 In Southern Poverty Law Center v. Dep’t of Homeland Security (D.D.C.), 1:18-cv-00760, Dkt. 18-760, SPLC argues that the “totality of barriers to accessing and communicating with attorneys endured by detainees in these prisons [the LaSalle Detention Facility in Jena, Louisiana, the Irwin County Detention Center in Ocilla, Georgia, the Stewart Detention Center in Lumpkin, Georgia, and Pine Prairie ICE Processing Center in Pine Prairie, Louisiana] deprives SPLC’s clients of their constitutional rights to access courts, to access counsel, to obtain full and fair hearings and to substantive due process, in violation of the Due Process Clause of the Fifth Amendment” and “violates the Administrative Procedure Act, as well as SPLC’s rights under the First Amendment.” The first complaint filed in April 2018 is available here; further briefing and orders in the litigation are available on the SPLC’s website here.

3 In Torres v. Dep’t of Homeland Security, (C.D. Cal.), 5:18-cv-02604-JGB, Dkt. 127-1, the ACLU of Southern California and the Immigrants’ Rights Clinic at Stanford Law School filed a class action lawsuit alleging that barriers to attorney-client communications at three ICE facilities in California (the Theo Lacy and James A. Musick county jails and the Adelanto Processing Center) were so severe as to make it nearly impossible for people in detention to reach their lawyers, in violation of statutory law, constitutional protections, and the Administrative Procedures Act. The first complaint filed in December 2018 is here; further briefing and orders in the litigation are available on the ACLU of Southern California’s website here.

4 Torres v. Dep’t of Homeland Security, (C.D. Cal.), 5:18-cv-02604-JGB, Dkt. 127-1, Order Granting Temporary Restraining Order, available here.

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 First, it took Defendants multiple rounds of briefing and two hearings to state whether there is any definite procedure to access free confidential legal calls and what that procedure is. Even if a procedure exists, Defendants do not rebut Plaintiffs’ showing that few detainees have ever accessed a free confidential legal call.” The Court further addressed the common problem of individuals in detention being forced to pay exorbitant phone rates for what should be free legal calls, stating, “Nor do Defendants explain why it is reasonable to expect detainees earning about one dollar a day…, or their families in the midst of an economic crisis, to fund paid ‘legal’ calls on recorded lines in the middle of their housing unit.”5

While litigation is ongoing in SPLC v. DHS and Torres v. DHS, our own legal teams throughout the country face daily, grueling obstacles in communicating with and effectively representing their detained clients, obstacles that have been compounded during the pandemic. ICE’s representations regarding phone and video-conference access are frequently belied by on-the-ground challenges including subcontractors’ belligerence, technology difficulties, or complex and opaque processes that even trained attorneys struggle to understand. As described by advocates in their October 2021 letter to DHS, the following examples are illustrative:

➔ Video-conference (VTC) technology is often not available or extremely limited in availability, even when facility policy states otherwise: An attorney with the University of Texas Immigration Law clinic attempted to schedule a VTC visit with a client who had recently been detained at the South Texas ICE Processing Center in Pearsall, Texas. A GEO staff member informed the attorney that there were no VTC visits available for two weeks—and even then availability was “tentative.” ICE’s webpage for Pearsall asserts that VTC appointments are available daily, 6 a.m. to 9 p.m., and can be scheduled 24 hours in advance.

➔ Emails and phone messages from attorneys go undelivered: The American Immigration Council’s Immigration Justice Campaign placed the case of a man detained at the El Paso Service Processing Center in Texas with a volunteer attorney at a law firm in Pittsburgh, Pennsylvania in June 2021. That attorney sent three emails to the El Paso facility requesting that a message be delivered to the client to call his new attorney. The attorney then learned that the client had been transferred to the Otero County Processing Center and sent two more emails to that facility requesting a call with the client. On June 28, an ICE officer claimed a message had been delivered to the client. On July 6, the client appeared before an immigration judge and stipulated to an order of deportation, seeing no way to fight his case and no way to find an attorney. That evening, the client received two of the attorney’s messages and was finally able to contact her, but the damage had been done.

5 Id.

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 ➔ Poor sound quality, dropped calls, and limited phone access: The Refugee and Immigrant Center for Education and Legal Services (RAICES) in San Antonio, Texas faces consistent problems trying to speak to clients detained at the facility in Pearsall, Texas. For example, over the course of one month in April and May 2021, RAICES staff struggled to prepare a declaration for a Request for Reconsideration of a negative credible fear interview for a client due to a host of communication failures at the facility. After RAICES was unable to contact the client for three days (despite prior regular calls) RAICES staff was finally about to reach their client, but the call dropped before the declaration was complete and GEO staff prohibited the client from calling back. GEO staff then did not schedule a VTC call as requested, canceled a VTC call, and a telephone call to attempt to finalize the client’s declaration had sound quality so poor that it was difficult to hear the client. These obstacles to access delayed the submission of the client’s Request for Reconsideration by several weeks. Similarly, The Florence Immigrant & Refugee Rights Project (FIRRP) has difficulty conducting legal intakes at La Palma Correctional Center in Arizona because guards frequently cut calls short. FIRRP works to complete intakes in just twenty to thirty minutes. Yet in the first two weeks of July 2021, it was unable to complete intakes for five potential clients because their calls were cut short by La Palma staff.

➔ Phone access restricted during quarantine and beyond: The El Paso Immigration Collaborative (EPIC) represents detained people in the El Paso area detention facilities, including the Torrance County Detention Facility. Staff at the Torrance facility have repeatedly told EPIC attorneys that they simply do not have capacity to arrange legal calls—with delays that can last for one week or more. For example, a call scheduling officer stated in August 2021: “Courts are my main priority and when I get chances to make attorney calls I will get to that.” Throughout the El Paso district, ICE denies any access to over-the-phone legal intakes and/or legal calls to people who are in quarantine for being exposed to COVID-19.

➔ Prohibitive cost of phone calls: The Immigration Detention Accountability Project of the Civil Rights Education and Enforcement Center (CREEC) answers calls to a free hotline available in immigration detention centers nationwide to monitor ICE compliance with the injunction in Fraihat v. ICE. Hotline staff routinely receive reports from callers—typically people with medical vulnerabilities or in need of accommodations—that they do not receive free calls for the purpose of finding an attorney, and the cost of telephone calls in detention is prohibitive for finding a removal defense attorney.

➔ Obstacles to sending and receiving legal documents: The Carolina Migrant Network represents a significant number of people detained at the Winn Correctional Center in

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 Louisiana. The Winn facility has the lowest availability of immigration attorneys in the entire country—a recent study showed that there was one immigration attorney for every 234 detained people at Winn within a 100-mile radius of the facility.6 Winn is so far from most immigration attorneys and legal services providers that most attorneys who serve that facility must do so remotely, but Winn will not facilitate getting legal documents to and from clients. Winn will not allow attorneys to email or fax a Form G-28, Notice of Entry of Appearance as Attorney, for signing. Instead, attorneys must mail a Form G-28 with a return self-addressed stamped envelope. It takes approximately two business weeks for Carolina Migrant Network attorneys to receive a signed Form G-28, because the facility is so geographically isolated that the postal service will not guarantee overnight mail.

➔ Intransigence of subcontractors and inadequate access policies in local jails: An attorney with Mariposa Legal in Indianapolis, Indiana routinely confronts obstacles to reaching clients at the Boone County Jail in Kentucky. Those challenges include a faulty fax machine as the only mechanism for requesting client calls or visits, the facility’s refusal to allow any calls on Thursdays, staff who bring the wrong person to the attorney client room, and the use of attorney-client rooms as dorms when the population level increases. Boone’s mail system is particularly problematic. An attorney sent paperwork via FedEx to a client in July 2021 and the client simply never received the package. Jail staff made an “exception” and allowed the attorney to email the documents but delayed the attorney being able to file a time-sensitive Freedom of Information Act request by more than a week.

b) Legal representatives are routinely denied access to their clients in ICE custody.

The ICE Access Memo states that, “ICE ERO does not track the number of legal visits that were denied or not facilitated and/or the number of facilities that do not meet ICE standards for attorney/client communications. However, in FY 2020, ICE’s inspections did not identify any legal representatives being denied access to their clients, as confirmed by the DHS Office for Civil Rights and Civil Liberties (CRCL) and other oversight bodies.” Given ICE’s own admission that it does not track or keep records of visit denials, this statement is meaningless.

As organizations providing legal services to individuals in detention, we can confirm that in-person and virtual legal visits are in fact routinely denied either outright or because of facility

6 This study is found in a report called Justice-Free Zones, which also provides in-depth evidence and data regarding the lack of availability of lawyers for many of ICE’s newest detention facilities. See American Civil Liberties Union, National Immigrant Justice Center, Human Rights Watch, Justice-Free Zones: U.S. Immigration Detention Under the Trump Administration (2020), 20-23. The report discusses at length the ways in which ICE’s use of remote detention centers and prisons for its detention sites undermines the ability of those in custody to find counsel. This topic is not addressed in this memo, but underlies the entirety of the due process crisis for detained immigrants facing removal proceedings.

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 policies so restrictive as to constitute denials in practice. SPLC has documented over two dozen incidents of legal visits, including four in-person visits and 22 calls and VTCs, that were denied or not facilitated at the Stewart, Irwin, LaSalle and Pine Prairie facilities in FY 2020 alone. Attorneys attempting in-person meetings in 2020 were often left waiting for their visits for so long that they had to leave the detention center and come back another day, a constructive denial even if not outright. SPLC attorneys also report phone calls and VTCs being regularly canceled or unilaterally rescheduled by facility staff with no notice to attorneys, often preventing attorneys from speaking to clients on time-sensitive matters.

In many facilities, the procedures and rules around setting up attorney-client visits are so cumbersome as to make visitation nearly impossible; in these cases ICE may not be denying visits outright but they are allowing conditions to persist that constitute a blanket denial. In a number of facilities in Louisiana, for example, attorneys are not allowed to meet with clients in person unless visits are scheduled by 3 p.m. the day before. This policy renders visits entirely unavailable for attorneys who need to meet with a client for time-sensitive matters that cannot wait 24 hours.

In Torres v. DHS, the court noted in ordering a TRO in April 2020 that ICE “equivocate[d]” on the question of whether contact visitation was allowed at all at the Adelanto facility in California. ICE eventually admitted that “only two contact visits” had been allowed between March 13 and April 6, 2020.7

c) Legal representatives frequently face obstacles to meeting in a private confidential space with current or prospective clients.

The ICE Legal Access Memo states that, “Facilities continue to provide noncitizens opportunities to meet privately with their current or prospective legal representatives, legal assistants, translators, and consular officials.” However, it is our experience that in many facilities it is not possible for individuals to meet in person with their lawyers in a private setting, and that access to translators is also frequently compromised. Many detained individuals are also unable to access private, confidential remote communication with their attorney. The ability to access a confidential space may be the difference between presenting a successful claim to relief or being order deported, especially for individuals sharing difficult or traumatic experiences or sharing information that they fear will place them at risk if overheard by other people in detention such as sexual orientation or gender identity.

In many facilities, especially since the pandemic, it is nearly or completely impossible to access a confidential space to have a remote communication with one’s attorney. Some facilities may

7 Torres v. Dep’t of Homeland Security, (C.D. Cal.), 5:18-cv-02604-JGB, Dkt. 127-1, Order Granting Temporary Restraining Order, available here.

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 claim to provide confidential spaces, but the reality is quite different. In the Pine Prairie facility, for example, the spaces designated for “confidential” attorney-client phone calls and VTC are actually cubicles with walls that do not reach the ceiling and allow for noise to travel outside the cubicle. Cubicle-style spaces with walls that do not reach the ceiling are also the only spaces available for so-called confidential attorney-client meetings at the T. Don Hutto Residential Center in Texas, where the University of Texas School of Law Immigration Clinic provides services. Similarly, confidential phone calls are provided at the Stewart facility but are limited to 30 minutes, which is far from sufficient for many types of legal calls necessary to gather facts or prepare for an immigration court case, especially if an interpreter is needed.

There are also severe restrictions to individuals’ ability to meet in person with their lawyers in confidential settings. At Pine Prairie, for example, because the cubicles described above have been reserved for VTC during the pandemic, attorneys must meet with their clients or prospective clients at a table in the middle of an open-plan intake space that is the most highly-trafficked part of the facility. There is absolutely no privacy—guards, ICE officers, other facility staff, other detained individuals and even people refilling the vending machines all travel through or wait in this space frequently, making it impossible to have a confidential conversation.

We also contest ICE’s claim that it provides ready access to translators as necessary for attorney-client communication. As explained in briefing in SPLC v. DHS, for example, the non-contact attorney-client visitation rooms in the LaSalle, Irwin, and Stewart facilities provide only one phone on the “attorney side” of the room, which means that there is no way for an attorney to be accompanied by a legal assistant or interpreter. Also at these facilities, a “no-electronics policy” is maintained meaning that attorneys are effectively denied from accessing remote interpretation services (there are also no outside phone lines available).

The following examples provide further evidence of the ways in which access to confidential in-person or remote communications are restricted throughout ICE detention:

➔ Restricted access to confidential remote communications during periods of COVID quarantine: In the McHenry County Jail in Illinois, prior to its closure, individuals were subjected to a mandatory fourteen-day quarantine period if exposed to COVID-19, during which they had literally zero access to confidential attorney-client phone calls. In January 2022, the National Immigrant Justice Center (NIJC) raised this issue to the Office of the Immigration Detention Ombudsman, sharing several case examples. One of the examples was that of an NIJC client who was represented by pro bono attorneys at a major law firm. In the weeks leading up to the client’s asylum merits hearing, the pro bono team contacted the facility and were told that no time slots were available because their client was in COVID-related quarantine. The facility informed the pro bono attorneys that their

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 only option to speak with their client was if he called them during the one hour every other day when he had access to the communal phones. Although the communal phones offered no confidentiality, it was the only option for them to speak with their client. The pro bono team had to deposit money into their client’s commissary account in order for him to call out, and then faxed him a letter asking him to call them during his one hour window. Their client did call, but he could barely hear his attorneys because the noise from the television and other people in detention speaking in the background was so loud.

➔ So-called “confidential spaces” providing no privacy: The University of Texas School of Law Immigration Clinic serves women detained at the Hutto facility, where since the start of the COVID pandemic attorneys have been required to sit in one plastic cubicle while their clients sit in another. This requires attorneys and their clients to raise their voices while speaking to one another, further limiting confidentiality. Two clinic students spoke to several women from Haiti who had experienced sexual assaults. The women had not been able to speak to attorneys prior to their credible fear interviews because of limits placed on attorney access, and so had little understanding of the process and the importance of describing their experiences fully. Because of this obstacle to due process, the women did not share their experiences of sexual assault during their credible fear interview. One woman was deported even after the students took on the case, because it took so long for legal counsel to learn about the details of the assault due to communication barriers.

II. ICE’s claims that it provides enhanced access to legal resources and representation are belied by the experiences of legal service providers and detained people.

In the Access Memo, ICE claims that it “made improvements in legal access accommodations by enhancing detained noncitizens’ remote access to legal service providers,” specifically including: a) the provision of more than 500 free phone minutes to “most noncitizens” and b) by expanding the Virtual Attorney Visitation (VAV) program from five to nine programs in FY 2020. ICE fails to mention, however, that the rollout of both programs has been extremely flawed. The 500 free minutes, for those in facilities where they are offered, are usually not available on a confidential line (making them generally not usable for attorney-client communication) and detained individuals often face severe obstacles in accessing the minutes at all. The VAV program, similarly, is in practice often inaccessible to attorneys trying to reach their clients.

a) The 500 free minutes do not meaningfully enhance legal access because they are usually available only on non-confidential lines and the length of calls is restricted.

ICE describes in the Access Memo that 520 minutes per month are provided to individuals detained in all facilities with Talton operated phone systems. The list of Talton-served facilities is

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 available on the AILA website here. However, these minutes are of limited utility in enhancing access to legal counsel for two primary reasons: First, the minutes can generally be used only in 10 or 15-minute increments after which time the call automatically cuts off, disrupting attorney-client calls and making conversations with interpreters particularly difficult. Second, in most cases it appears the minutes are available only on phones in public areas of housing units, and therefore cannot be used for confidential attorney-client communication. It has also been our experience that it is difficult for individuals who do not read Spanish or English to access the minutes at all, as the instructions for how to use them are usually provided in English and Spanish without accommodation for speakers of other languages, including indigenous languages.

Our own legal service teams and clients have experienced these challenges:

➔ The Otay Mesa Detention Center in California is one of the facilities ICE claims provides 520 free minutes. NIJC provides legal services to individuals at the Otay Mesa facility, and has found it to be difficult and often impossible for attorneys providing remote representation to get a secure line set up using clients’ free minutes. One NIJC attorney has had some success in doing so by calling the facility, asking for her client to submit a form adding her to their attorney list, and then calling her back. However, she has found this to only work in rare instances and notes that it usually takes at least three days’ advance notice.

➔ The American Immigration Council works with partners who provide legal services at the Otero County Processing Center in New Mexico, which is also on the list of facilities providing 520 free minutes. However, the free minutes available at the Otero facility are available only on recorded lines from phones in public areas of the housing units, thus not confidential. In July 2020, a law clerk with EPIC shared that they had conducted an intake interview with a potential client at Otero which had to be conducted over four short calls, because the first three calls were free ten minute calls that automatically cut off. The client paid for the fourth call, which cut off before the intake could be completed. This made it difficult to maintain a conversation, caused confusion, and impeded the law clerk’s ability to ask the client a full range of questions.

➔ The practice of dividing the 520 monthly minutes into calls of such short duration that they disrupt attorney-client communication was confirmed by ICE Assistant Field Officer Director Gabriel Valdez in a written affidavit filed in Torres v. DHS stating that as of April 2020 at the Adelanto facility, the 520 free minutes were provided as a maximum of 13 calls per week, with each call permitted to last no longer than 10 minutes. Legal service providers at Adelanto also confirm that these free minutes are provided only on

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 the phones in the common spaces of the Adelanto facilities, where attorney-client confidentiality is not protected.

b) The Virtual Attorney Visitation (VAV) program is severely compromised in its utility by restrictions on usage and technology problems, and in certain facilities does not even appear to be operational.

ICE describes in its Access Memo that the VAV program was expanded from five to nine facilities in Fiscal Year 2020, allowing legal representatives to meet with their clients through video technology in private rooms or booths to ensure confidentiality of communications. ICE posts a list of the facilities it claims are VAV-enabled here.

Many of our legal service teams had never heard of the VAV program until reviewing the ICE Access Memo, which speaks to the extent to which it can be utilized in practice. Included in ICE’s list of VAV-enabled facilities are three facilities where SPLC currently provides services—the Folkston ICE Processing Center, the LaSalle ICE Processing Center, and the Stewart Detention Center. Yet SPLC’s legal teams are entirely unaware of any VAV programs having been accessible at any of these three facilities in Fiscal Year 2020. While some VTC capacity was present at these facilities using Skype, they do not appear to have been part of the VAV program which is largely conducted using Teams and WebEx, according to the Access Memo. Further, the number of confidential VTC rooms in use at these facilities was dismally low. In the Stewart Detention Center, for example, which can detain up to 2,040 people, there are only two VTC rooms, neither of which are confidential.

Another facility on ICE’s list of VAV-enabled facilities is the Otay Mesa Detention Center, where NIJC provides legal services. Yet NIJC’s attorneys who represent individuals at Otay Mesa through a program focused on ensuring legal representation for LGBTQI individuals have found that there is no way for NIJC to schedule legal calls or VTC sessions for free, through the VAV or any other program. For one current NIJC client, the legal team must provide funds to the client’s commissary to be able to speak with them, and even then the calls cut off every ten minutes.

The ICE website describes the VAV program as providing detained individuals access to their attorneys in a “timely and efficient manner.” Yet at the Boone County Jail, one of the listed VAV-enabled facilities, NIJC’s clients report that there are very limited available hours for attorneys to call through the VAV program, and they must be requested well in advance. On one occasion, for example, an NIJC attorney called to ask for a VAV session in the ensuing 48 hours and was told none were available. Instead, the facility staff directed the attorney to the iwebvisit.com website where she could “purchase confidential visits” at $7.75 per 15-minute interval. Boone strictly limits the availability of free confidential VAV calls, and charges for calls

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 occurring during many slots in normal business hours. Given the limited availability that Boone provides for free calls on the VAV platform, NIJC has had to pay these fees in order to communicate with clients. Additionally, the quality of the videoconferences on the platform used by Boone County Jail is poor, and NIJC attorneys and advocates struggle to hear clients. Finally, the process for adding third-party interpreters through Boone’s system is extremely onerous, which raises serious concerns about accessibility for speakers of diverse languages. Third party interpreters are unable to join calls unless they go through a registration and clearance process with the jail and like attorneys, must also pay fees for 15-minute intervals if the call takes place during certain hours.

III. ICE’s stated increased coordination with Enforcement and Removal Operations (ERO) to address issues with access to legal counsel has not been communicated to legal service providers.

ICE notes in its Access Memo that it has designated Legal Access Points of Contact (LA-POC) in field offices, who are intended to “work with the ICE ERO Legal Access Team at headquarters to address legal access-related issues and to implement practices that enhance noncitizen access to legal resources and representation.” Among the four organizations authoring this memo, none of our legal service teams reported knowing how to access these designated points of contact or had experienced them resolving concerns or issues. For many of us, the Access Memo was in fact the first time we had even heard of LA-POCs, which is fairly remarkable given that all four of our organizations either provide large quantities of legal services to detained individuals or represent other organizations that do.

***

Meaningful and prompt access to confidential communication with counsel is literally a life and death matter for individuals who are in ICE detention. Barriers to communication can prevent an individual from being fully prepared for a court hearing that will determine whether they are permanently separated from their loved ones. A lack of confidential space for attorney-client communications can mean that an LGBTQI person may never feel safe to disclose their sexual orientation or gender identity, compromising both their own safety and their ability to present their full claim to asylum or other protection.

ICE has submitted this report, in effect asking Members of Congress to believe that they have been responsive and thoughtful in their approach to ensuring access to counsel, even while legal service providers are forced to seek emergency relief in the federal courts simply to be able to communicate with their detained clients. The ICE Access Memo represents a disingenuous and cavalier approach to a gravely serious topic, and we urge Chairpersons Roybal-Allard and Murphy to hold the agency accountable.

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

Previous coverage from “Courtside:”

https://immigrationcourtside.com/2022/03/29/the-gibson-report-03-28-22-compiled-by-elizabeth-gibson-esquire-managing-attorney-nijc-headliners-ice-lies-to-congress-about-attorney-access-bia-flagged-by-11th-for/

You don’t have to be a “legal eagle” to understand that putting “civil” immigration prisons (the “New American Gulag”) in obscure locations like Jena, LA, and elsewhere in the notoriously anti-immigrant Fifth Circuit is, among other illegal objectives, about restricting access to lawyers and running roughshod over due process and fundamental fairness.

But, don’t hold your breath for a day of reckoning for immigration bureaucrats peddling lies, myths, and distortions.

Sadly, accountability for White Nationalist abuses of asylum seekers and other migrants by the Trump regime hasn’t been a priority for either a moribund Congress or the Biden Administration. And, a “New Jim Crow” 5th Circuit loaded with Trump judges isn’t likely to stop abuses of due process as long as they are directed primarily against persons of color. See, e.g., https://www.theguardian.com/law/2021/nov/15/fifth-circuit-court-appeals-most-extreme-us?CMP=Share_iOSApp_Other.

Nevertheless, as the GOP initiative to rewrite the history of racism in America rolls forward, it’s more important than ever to continually document  truth for the day in the future when America develops the communal courage to deal honestly with the past rather than intentionally and spinelessly distorting it.

🇺🇸Due Process Forever!

PWS

04-03-22

THE GIBSON REPORT — 03-28-22 — Compiled By Elizabeth Gibson, Esquire, Managing Attorney, NIJC — HEADLINERS: ICE Lies To Congress About Attorney Access; BIA Flagged By 11th For Another “Categorical Approach” Blunder!

Elizabeth Gibson
Elizabeth Gibson
Managing Attorney
National Immigrant Justice Center
Publisher of “The Gibson Report”

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Weekly Briefing

 

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

 

CONTENTS (jump to section)

  • NEWS
  • LITIGATION & AGENCY UPDATES
  • RESOURCES
  • EVENTS

 

NEWS

 

Biden Administration Prepares Sweeping Change to Asylum Process

NYT: Under the new policy, which the administration released on Thursday as an interim final rule, some migrants seeking asylum will have their claims heard and evaluated by asylum officers instead of immigration judges. The goal, administration officials said, is for the entire process to take six months, compared with a current average of about five years.

 

USCIS Agrees to Restore Path to Permanent Residency for TPS Beneficiaries

CLINIC: U.S. Citizenship and Immigration Services (USCIS) agreed to restore a path to permanent residency for many Temporary Protected Status (TPS) beneficiaries blocked by then-acting USCIS Director Ken Cuccinelli — an illegally appointed Trump official. Because of this agreement, TPS beneficiaries impacted by this policy will be able to reopen and dismiss their removal orders and apply to adjust their status to become permanent residents — eliminating the threat of deportation if their TPS protections are revoked in the future.

 

ICE ending Etowah County immigration detention after ‘long history of serious deficiencies’

AL: U.S. Immigration and Customs Enforcement, also known as ICE, will discontinue use of the Etowah County Detention Center in Gadsden, and will limit the use of the three other southern detention facilities: Glades County Detention Center in Moore Haven, FL., Winn Correctional Center in Winnfield, LA., and Alamance County Detention Facility in Graham, N.C. See also Biden to Ask Congress for 9,000 Fewer Immigration Detention Beds.

 

ICE claims ‘unabated’ legal access in detention during pandemic

Roll Call: Congress in the fiscal 2021 law instructed the agency to include the number of legal visits “denied or not facilitated” as well as how many detention centers do not meet the agency’s standards of communications between immigrants and their lawyers… [T]he report claimed ICE inspections in fiscal 2020 “did not identify any legal representatives being denied access to their clients.”

 

Cruelty as Border Policy: The Biden Administration Keeps in Place CBP’s “Consequence Delivery System”

Border Chronicle: Behind closed doors, agents, like technocrats in a Fortune 500 company, create color-coded graphics to demonstrate the most “efficient” and “effective” enforcement techniques. Even though the effectiveness of deterrence has been questioned and refuted, and even though the question of human rights has not entered the equation at all, the U.S. federal government seems to be plowing ahead with this without any questions.

 

Boston asylum office has second lowest grant rate for asylum seekers in the country

GBH: The Boston asylum office for U.S. Citizenship and Immigration Services granted only about 11% of applications last year, less than half the national average, according to a report released Wednesday.

 

Judge Orders Immig. Atty To Pay $240K For Asylum Scam

Law360: A Massachusetts judge ordered an immigration attorney to pay $240,000 in penalties and restitution for filing frivolous and false asylum applications for undocumented Brazilian immigrants without their knowledge, according to a Thursday announcement from Massachusetts Attorney General Maura Healey.

 

EOIR Announces 25 New Immigration Judges

More than half of the judges will be going to the Hyattsville Immigration Court (Maryland) and Sterling Immigration Court (Virginia, opening May 2022). The list includes Claudia Cubas (CAIR Coalition), Kristie Ann-Padron (Catholic Legal Services, Miami), Kyle A. Dandelet (Pro Bono Immigration Attorney at Cleary Gottlieb), Ayodele A. Gansallo (Hebrew Immigrant Aid Society of Pennsylvania), Joyce L. Noche (Immigrant Defenders Law Center), Christine Lluis Reis (Human Rights Institute at St. Thomas University College of Law), Carmen Maria Rey Caldas (IRAP), and others.

 

Biden says the U.S. will take 100,000 Ukrainians. But how many will go?

WaPo: Refugee workers said it was typical for recent refugees to focus at first on the possibility that they would be able to return quickly to their lives. But should the war drag on, more Ukrainians would seize on the chance to seek a haven in the United States, they said.

 

Immigration, Environmental Law Links Deepen Under Biden

Law360: Immigration and environmental attorneys are increasingly banding together as advocacy groups on both the left and the right try to leverage environmental laws to influence immigration policy.

 

LITIGATION & AGENCY UPDATES

 

DHS Partly Barred From Tailoring Immigration Enforcement

Law360: An Ohio federal judge on Tuesday blocked the U.S. Department of Homeland Security from considering a Biden administration mandate that had narrowed immigration enforcement priorities while making custody decisions, finding the policy overstepped sections of federal immigration law.

 

CA2 “Weapons Bar” Remand: Kakar v. USCIS

Lexis: On review, the United States District Court for the Eastern District of New York affirmed the denial under the “weapons bar” of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(3)(B)(iii)(V). The question on appeal is whether USCIS, in denying Kakar’s application, adequately explained the unlawfulness of Kakar’s acts under United States law, and whether in doing so it considered his claim of duress. Because we are unable to discern USCIS’s full reasoning for denying Kakar’s application or to conclude that the agency considered all factors relevant to its decision, we conclude that its decision was arbitrary and capricious under the APA.

 

CA 11 Says Marijuana Conviction Can’t Bar Removal Relief

Law360: The Eleventh Circuit ruled Thursday that the Board of Immigration Appeals erred when finding that a man’s Florida conviction for marijuana possession rendered him ineligible for a form of deportation protection.

 

Feds Lose Bid To Move Texas Sheriffs’ Immigration Policy Suit

Law360: A Texas federal judge has denied the Biden administration’s bid to transfer a group of Texas sheriffs’ challenge to the administration’s immigration enforcement policies, rejecting the argument that none of the sheriffs in the judicial district has standing to sue.

 

DHS and DOJ Interim Final Rule on Asylum Processing

AILA: Advance copy of DHS and DOJ interim final rule (IFR) on asylum processing. The IFR will be published in the Federal Register on 3/29/22 and will be effective 60 days from the date of publication, with comments accepted for 60 days.

 

DOS Provides Guidance on Visas for Ukrainian Children

AILA: DOS issued guidance on visas for Ukrainian children undergoing intercountry adoption or who previously traveled for hosting programs in the United States. The Ukrainian government is not currently approving children to participate in host programs in the United States. More details are available.

 

EOIR Updates Appendix O of the Policy Manual with Adjournment Code 22

AILA: EOIR updated appendix O of the policy manual with adjournment code 22. The reason is “Respondent or representative rejected earliest possible hearing date,” and the definition is “Hearing adjourned due to respondent or representative rejecting earliest possible hearing date.”

 

HHS 60-Day Notice and Request for Comment on Forms for Sponsors for Unaccompanied Children

AILA: HHS 60-day notice and request for comments on proposed revisions to the Family Reunification Packet of forms for potential sponsors of unaccompanied children. Comments are due 60 days after publication of the notice. (87 FR 16194, 3/22/22)

 

RESOURCES

 

 

EVENTS

 

NIJC EVENTS

 

GENERAL EVENTS

 

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Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

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

www.immigrantjustice.org | Facebook | Twitter

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The idea that the DHS “New American Gulag” (“NAG”) doesn’t restrict attorney access is absurd! A primary reason for detention in obscure, out of the way, hard to reach places like Jena, LA, Lumpkin, GA, amd Dilley, TX is to inhibit representation and increase the pressure on detainees to abandon claims and take “final orders of removal.” 

That goes hand in hand with staffing these prisons with DOJ’s wholly owned judges who are renowned for denying bond and summarily denying most asylum claims. That a disproportionate number of these facilities are located in Federal Judicial Circuits five and eleven, notorious for anti-due process, anti-human-rights, anti-immigrant “jurisprudence,” is no coincidence either.

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

With respect to the “categorical approach,” as my distinguished colleague Judge Jeffrey Chase has pointed out, EOIR has actually “institutionalized” resistance to and manipulation of this analysis to promote results unfavorable to immigrants and pleasing to DHS!  

As several related Supreme Court decisions sealed the matter, the Board in 2016 was finally forced (at least on paper) to acknowledge the need to make CIMT determinations through a strict application of the categorical approach. However, as Prof. Koh demonstrates with examples from BIA precedent decisions, since 2016, the Board, while purporting to comply with the categorical approach, in fact has expanded through its precedent decisions the very meaning of what constitutes “moral turpitude,” enabling a greater number of offenses to be categorized as CIMTs.

Consistent with this approach was a training given by now-retired arch conservative Board member Roger Pauley at last summer’s IJ training conference.  From the conference materials obtained by a private attorney through a FOIA request, Pauley appears to have trained the judges not to apply the categorical approach as required by the Supreme Court when doing so won’t lead to a “sensible” result.  I believe the IJ corps would understand what this administration is likely to view as a “sensible” result. Remember that the IJs being trained cannot have more than 15 percent of their decisions remanded or reversed by the BIA under the agency’s completion quotas.  So even if an IJ realizes that they are bound by case law to apply the categorical approach, the same IJ also realizes that they ignore the BIA’s advice to the contrary at their own risk.

HON. JEFFREY S. CHASE: The History Of A Flawed Judiciary; The Intentional Tilting Of Asylum Law Against Asylum Seekers; The Farce Of Justice In The Immigration Courts; The Need For An Independent Article I Court!

As both of these incidents show, the Biden Administration under Mayorkas and Garland has failed to bring accountability or intellectual honesty to many parts of the broken immigration justice system they inherited from the Trump regime. The disgraceful “atmosphere of unaccountability” continues to predominate at DHS and DOJ.

🇺🇸Due Process Forever!

PWS

03-29-22

 

 

😒LOOKING THE OTHER WAY @ GARLAND’S DOJ:  ☠️ Deadly Civil & Human Rights Violations Inflicted On Individuals Of Color By DHS/DOJ’s “New American Gulag!”

Alexandra Martinez
Alexandra Martinez
Senior Reporter
Prism
PHOTO: Prism

https://notify.dailykos.com/ss/c/atcYNHk4Eh2YdGnwBh-YDCxDIu4OO3SBv2TLoLPFt2czW0dtkj0znJv8y4_fpHhZU-HKs2U4–r_uxxFUTYhHuROxyBNaXybIMjYeD4ksiM97Shwx3b4Hq5WHNh5rUrm37DeupxU-lbnh-mAH_2w53MFbvc01bSsPa27VYNOiTFTIZoVASZIjao4JD7V00kVtSWTDOR1EfZJMNtRdbyStg/3k5/0Fp_rVbkQQqEJZKJd3JlJg/h4/jpbX9uAFBiBfKOSRVHl30U7E_t1pnXvo0RlNJi-44fA

In the early morning on Feb. 4, Jose boarded a packed airplane in Illinois filled with handcuffed immigrant detainees just like him. They were en route to another detention center in Oklahoma after theirs was ordered close. During the hour-and-35-minute flight, several people appeared ill, coughing and sniffling, but no one was able to socially distance. A few days later, Jose began experiencing the worst kind of sickness he had ever felt. He had contracted COVID-19. Jose joins the 1,126 other immigrants in Immigration and Customs Enforcement (ICE) detention who are currently being monitored and tested positive for the virus, representing a 395% surge in COVID-19 cases since January when there were only 285 reported cases.

“I was scared at one point. I’ve never been sick like that in my life,” Jose said. “I thought, ‘I’m going to die here.’”

Jose, who has asked to withhold his last name to protect his identity, is 25 years old and has lived in the U.S. since he came with his parents from Mexico at age seven; he has been in immigration detention for three months. He was originally detained in Illinois at McHenry County Jail, but when Illinois Gov. J.B. Pritzker signed the Illinois Way Forward Act, banning private and county-run immigration detention, Jose was one of 17 people from McHenry County Jail transferred to the Kay County Jail in Oklahoma.

“We really want to focus on getting releases and getting folks out of detention, instead of transfers to another facility,” said Gabriela Viera, advocacy manager at the Detention Watch Network. “We need to continue shutting down facilities until we are in a place where there are no more facilities for people to be transferred to.”

Another person in a different immigrant detention center, Jorge, was transferred from a facility in New York to Krome Detention Center in Homestead, Florida. According to advocates from the Queer Detainee Empowerment Project, he was exposed to COVID-19 and tested positive for the virus. Jorge has confirmed widespread reports that there is a complete disregard for the virus within the detention center, with no access to hand sanitizer or vaccines.

According to the National Immigrant Justice Center, both McHenry County Jail and the Jerome Combs Detention Center in Kankakee County experienced COVID-19 outbreaks among the ICE population at the time of these transfers. Advocates, public health experts, and members of Congress raised the alarm to Chicago Field Office Director Sylvie Renda in the days before the transfers about the risks of moving people to jails out of state under these circumstances, but ultimately, about 30 people were transferred from McHenry and Kankakee to Oklahoma, Indiana, and Texas.

“There was no distance between us,” Jose said. “When we got there, they just put us all in the dorm room.”

About four days after arriving in Oklahoma, Jose began feeling sick. His body ached, his sinuses were congested, and he had difficulty standing, especially during routine phone calls where there are no chairs provided. The extreme cold at night only worsened his symptoms, and he developed body shivers, chest pain, and a fever. He put in two requests to see the medic before he was finally tested for COVID-19 and confirmed that he had the virus.

“They’re not testing people regularly, and they’re not socially distancing, they’re not providing people with sufficient hygiene products,” said Diana Rashid, National Immigrant Justice Center’s managing attorney, who is representing Jose in his release request. “The spread is just going to continue.”

The medic gave him fever-reducing medication and vitamin D. He was returned to his 20-person pod and was told to remain in his bunk and try to self-isolate within his dorm room the size of a small basketball court.

“I thought they were going to move me to a cell alone,” Jose said. “But, they just left me in the room. I think I even got someone else sick.”

Jose is now recovering and feels better, but at least one other person has tested positive, with a total of nine positive cases in the detention center, according to ICE. But, Jose says that number may be even larger due to underreporting. When a person tests positive, they are put under quarantine for 10 days, meaning they cannot interact with other pods. Even worse, they are not taken out of their rooms for their court hearings, postponing an already delayed process and forcing them to stay in detention longer than necessary. According to Rashid, it would take about two to four weeks to get the first hearing in Chicago’s immigration court after a person is first detained.

“Everyone’s cases stalled for those who are in quarantine,” said Rashid.

Jose, who has been in quarantine for a majority of his detention, says that people are getting frustrated and desperate with the continued prolonging of their cases. Some are even considering signing the removal papers out of desperation.

“I just want to go ahead with my court proceedings and get out of here,” said Jose. “I want to make it to the light at the end of the tunnel.”

Immigration advocates hope more states will follow Illinois and close their detention centers. A total of 41 people were released from these jails during January in Illinois, but they believe that everyone, including Jose, should have been released on the current ICE enforcement memo guidelines. Advocates are also continuing to push for Congress to cut funding for immigration detention and enforcement and hope to invest in vital programs that uplift their communities instead, like health care, affordable housing, and education.

Prism is a BIPOC-led non-profit news outlet that centers the people, places, and issues currently underreported by national media. We’re committed to producing the kind of journalism that treats Black, Indigenous, and people of color, women, the LGBTQ+ community, and other invisibilized groups as the experts on our own lived experiences, our resilience, and our fights for justice. Sign up for our email list to get our stories in your inbox, and follow us on Twitter, Facebook, and Instagram.

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

Assistant Attorney General, Civil Rights, Kristen Clarke looks for civil rights violations by state and local governments. Yet, she studiously ignores those being committed in broad daylight by her boss’s dysfunctional and biased Immigration Courts and the immigration detention empire he enables, supports, and defends.

As Alexandra’s report notes, one well-known result of prolonged detention in intentionally unsafe and substandard conditions is to “duress” individuals into giving up legal rights. Could there be a clearer violation of our Constitution going on right under Garland’s nose?  I doubt it! But, no stand against these clear abuses. It’s as if “Gonzo” Sessions, “Billy the Bigot” Barr, and “Gauleiter” Stephen Miller were still calling the shots for Garland!

Gulag
“The New American Gulag” (“NAG”) operates right under the noses of civil rights honcho Kristen Clarke and her boss AG Merrick Garland with their blessing. Indeed, they have “embedded courts” in the NAG! So much for the  Biden Administration’s commitment to civil rights. GULAG PHOTO: Public Realm.

 

 

Almost from the “git go,” the Biden Administration has avoided dealing effectively and honestly with the “second (or third) class justice system” being inflicted by the DOJ, disproportionately targeting individuals of color and ethnic communities in America! It’s a rather glaring case of “do as I say, not as I do” that doesn’t appear to have escaped the notice of some Trump Article III judges. They turn the DOJ’s spineless “Dred Scottification” and “Miller Lite” actions and arguments back against them to undermine racial justice, fundamental fairness, and truth in all areas.

In a truly revolting🤮, yet highly revealing, interview with Savannah “Why Am I Giving Air Time To This Bad Dude” Guthrie on today’s Today Show, “Billy the Bigot” Barr made it clear that he considers corruption, lies, fascism, racism, and the final destruction of American democracy a “small price to pay” to fight the “real problem:” Progressive, humane, values-based governance in the common public interest. 

But, somehow, Garland and others in the Biden Administration see no reasons to take a stand against this dangerous nonsense! 

Remember folks, BTB is the overt racist who casually and glibly told Lester Holt  that “Black Lives Matter” is the “Big Lie!” He knows there will be no accountability for GOP enablers like him! Who’s the next “exclusive” for the NBC News crew, the Grand Dragon of the KKK? And, you can bet that if empowered again, the GOP will have no problem reviving the “White Nationalist Clown Show”🤡 @ DOJ. 

That leaves the fight for the future of our nation to the NDPA and others who believe that America doesn’t necessarily have to spiral downhill into a “MAGAland” grave, ⚰️ but could actually become something better than we are today! It’s not a given that we can build a better nation and a better world, but it is a possibility. 

Will the next generation stand up for a better future for everyone, or fulfill the nasty, backward-looking vision of lies, hate, and intolerance that BTB and the rest of the GOP right have mapped out for them?

🇺🇸Due Process Forever!

PWS

03-07-22

☠️HE SURVIVED 22 YEARS IN CAL STATE PRISONS — 2 YEARS IN DHS DETENTION “BROKE” HIM, DESPITE WINNING HIS CASE BEFORE AN IJ! — Welcome To America & Biden’s Gulag, Where Asylum Seekers Get Treated Worse Than Convicted Felons!🤮

 

Gulag
Inside the Gulag
In the fine tradition of Josef Stalin, like US Presidents before him, President Biden finds it useful to have a “due process free zone” to stash people of color.

https://www.sfchronicle.com/opinion/article/I-ve-done-time-in-12-California-prisons-Yuba-16804293.php

Carlos Sauceda writes in the SF Chron:

In 2017, after serving 22 years in prison for a gang-related murder I committed as a teenager, the California parole board granted me early release due to my rehabilitation and leadership while incarcerated. I was incredibly fortunate to get what I thought would be a second chance at life, and I committed myself to using my freedom to improve the world around me.

But I had to put those plans on hold. Because I was undocumented, I was immediately transferred to Immigration and Customs Enforcement custody at Yuba County Jail. The two years I spent there awaiting a decision on my immigration status were far worse than the over two decades I spent in 12 different prisons serving out my sentence.

Yuba County Jail is the last county jail under contract with the federal government to hold immigrant detainees in California. For the two years I fought my immigration case, I was psychologically, emotionally and physically abused by the Yuba County Sheriff’s Department. Some of the cells I lived in had no drinking water, others did not have working toilets and others had no lights, leaving me and other detainees in the dark all day long. My stress increased and my blood pressure became dangerously high. In 2018, after a year at the jail, I finally won my immigration case. But Department of Homeland Security attorneys appealed the judge’s decision, keeping me separated from my family, fueling my depression and suicidal thoughts. After another year of fighting the appeal, I had to make an impossible choice: Die inside Yuba County Jail or risk imminent death in my native land. After two years of inhumane treatment, I chose the latter. I signed the paperwork for self-deportation and went back to my home country.

My story is just one of thousands playing out in federally contracted county jails and privately operated ICE detention centers across the country. Despite President Biden’s campaign promise to end the use of private prisons for immigration detention, for undocumented people being held at Yuba County Jail, no relief is coming.

Yuba County Jail has a long history of violating national detention standards. From 2010 to 2021, ICE’s own detention office conducted at least eight inspections at the jail and found 171 violations. Among those violations, inspection officials determined that a sergeant, who was involved in two use-of-force incidents at the jail, participated in his own reviews. As a result of the findings, 24 members of Congress wrote a letter to Secretary of Homeland Security Alejandro Mayorkas demanding that the department terminate ICE’s contract with Yuba County. At the state level, California legislators passed SB29, forbidding local governments to enter into new detention agreements with ICE. But as The Chronicle’s reporting pointed out, in 2018, the same year SB29 took effect, ICE and Yuba County officials “quietly extended their contract” to 2099.

Why would Yuba County officials establish an indefinite contract with ICE as the rest of the state moves to end the use of its jails by federal immigration authorities? Follow the money. The contract with ICE earns the Yuba County Sheriff’s Department a minimum of just under $24,000 a day, whether or not any detainees are being held in the jail, totaling about $8.66 million per year.

When the pandemic hit, conditions inside the jail worsened. Following an April 2020 class-action lawsuit, court orders led the jail to decrease its detainee population. Thanks to the work of human right advocates and formerly detained undocumented people like myself, and others, the jail went from having 127 detainees in May 2020 to zero in late 2021. For those of us who had fought, staged hunger strikes and protested, both inside and outside the jail, it felt like we were finally seeing the end of immigrant detainment.

But our celebrations were brief. In the two months that the jail had no detainees, the county’s contract with ICE was still in place, earning it an estimated $1.4 million. And in December, ICE transported its first detainee back into the jail. As of this week, three people are now detained there under ICE custody.

The repopulation of the jail by ICE only means we will fight even harder for liberation and the termination of the contract. Over the past year, and despite being thousands of miles away, I found ways to raise my voice. I connected with others who were detained alongside me and who were also deported and encouraged them to join the fight. My wife, along with other mothers, sisters, and family members joined us as well. We hosted Instagram live videos as a space for storytelling. For weeks, I met with congressional offices and shared my story and the story of others, which ultimately led to their support.

At a recent Yuba County Board of Supervisors meeting, newly named Chairman Randy Fletcher said that the claims made in a letter sent by the ACLU to the Yuba County sheriff and Board of Supervisors about the multiple violations and unlawful conditions at the jail were not true. “They make a lot of accusations. … It’s not true. It’s just not true,” he said. But I and the other undocumented people who were detained there know what we suffered through is true. And it needs to stop.

. . . .

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

Read the rest of the story at the link.

Coercion and punishment have long been part of the plan. That’s because the Supremes have fabricated the concept that “civil” imprisonment isn’t “punishment.” Pure balderdash!

Also, how does a jail get paid $1.4 million by taxpayers for nothing? Sounds like a “fleecing of America.”

But, of course, neither Garland nor Mayorkas bother to look into these questionable practices. Rather curious in light of the recommendation of a “select task force of experts” at the end of the Obama Administration that detention contracts (which frequently make establishing accountability for abuses difficult or impossible) be ended and that DHS phase out unnecessary detention.

Lack of accountability for DHS Detention is a chronic problem. So are defective bond procedures by EOIR that several Federal Courts have found unconstitutional, but which Garland continues to defend! Arbitrary bond procedures, weak internal appellate review, and lack of helpful precedents all feed the system.

Also, EOIR’s brushing aside the intentional coercion, lack of access to counsel, absence of resources, inability to prepare and document cases all contribute to the dangerous dysfunction. New, independent, expert, progressive “real judges” at EOIR would not allow Mayorkas and Garland to keep sweeping these abuses under the carpet!

Perhaps that’s why Garland has been content to allow his “courts” to malfunction using a majority of Trump/Miller holdovers and some notorious “go along to get along” bureaucrats as “judges.” Voices of expertise and reason among the IJs, and there are some, are often “silenced,” “neutered,” or “intentionally frustrated” by a BIA stacked with apologists, sometimes flat-out advocates, for DHS Enforcement and anti-immigrant policies.

Meanwhile, journalists, advocates, and those who have experienced “The Gulag” first hand need to keep it in the headlines, continue to litigate vigorously against it, and make a record of the disgraceful gap between what America claims to stand for and what it actually does! And, they would do well to “keep turning up the heat” on Garland’s “star chambers” and on his own lack of accountability for the daily disasters that unfold under his auspices.

🇺🇸Due Process Forever!

PWS

01-27-22

💸🤑SCAM CITY USA! — Feds Paid Bad Cal Jail $1.4 Million For Nothing! — Now They Are Placing Immigration Detainees In These Dangerous, ☠️ Substandard ⚠️ Conditions! — Administrations Change, But The American Gulag 🤮 Remains!

 

Deepa Fernandes
Deepa Fernandes
Immigration Reporter
SF Chronicle
PHOTO: SF Chron

 

https://www.sfchronicle.com/california/article/Northern-California-jail-reopens-to-immigrant-16765144.php

 

Deepa Fernandes for the SF Chron:

. . . .

Court orders in the class-action lawsuit caused Yuba’s detainee population to steadily decline, from 127 in May 2020 to zero on Oct. 27, 2021, when the last incarcerated noncitizen was released. Activists briefly celebrated and hoped to use the momentum to prevent the jail from accepting future detainees.

But ICE and Yuba County had quietly extended their contract indefinitely in 2018. The contract stipulates that Yuba County receive a minimum of $24,000 a day whether any detainees are in its jail or not. In the two months the jail was without detainees, the federal government paid Yuba County almost $1.4 million.

As word trickled out that the Northern California jail might begin accepting new detainees, formerly incarcerated men and community supporters protested outside the federal immigration court in San Francisco last month.

A report by the team overseeing the jail’s compliance with the court-ordered consent decree found that a “severe breakdown of the Jail’s mental health system” contributed to the suicide last month of a man who had been in the jail for only a few days. It also found that officials had failed to fix previously cited suicide risks, and that there was inadequate medical and mental health staffing and treatment.

“We’ve known for decades that Yuba County Jail has a horrific record of mental and medical care that has unfortunately resulted in tragic deaths and lots of pain for lots of families,” said Laura Duarte Bateman, communications director for the California Collaborative for Immigrant Justice, which organized last month’s protest against Yuba accepting new detainees.

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Read the full article at the link.

Fraud, waste, and abuse. No need for the GAO “hotline” on this one. It’s all hanging out in public view as Mayorkas & Garland bury their respective heads in the sand.

🇺🇸Due Process Forever!

PWS

01-11-21

☹️HE BEAT THE GOVERNMENT TWICE IN COURT — But, After Three Years In Jail Without Being Charged With Any Crime, Omar Ameen Still Can’t Get A Bond From Garland’s Courts —  How Can A System Where The Prosecutor Makes The Rules & Picks The Judges, Mostly From The Ranks Of Former Prosecutors, Provide The “Fair & Impartial Judging” Required By Due Process?

Hon. Ilyce Shugall
Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.

 

IMMIGRANT LEGAL DEFENSE

FOR IMMEDIATE RELEASE January 10, 2022

Contacts:

Immigrant Legal Defense

Ilyce Shugall, ilyce@ild.org, (415) 758-3765

Siobhan Waldron, siobhan@ild.org, (510) 479-0972

Edwin F. Mandel Legal Aid Clinic, The University of Chicago Law School Nicole Hallett, nhallett@uchicago.edu, (203) 910-1980

Omar Ameen Files Federal Lawsuit Seeking His Release

After the U.S. Government Fails Once Again to Prove Any Connection to Terrorism

San Francisco, CA. Immigrant Legal Defense and the University of Chicago Immigrants’ Rights Clinic have filed a petition for a writ of habeas corpus on behalf of Omar Ameen seeking his immediate release from immigration custody. Mr. Ameen has been held by the U.S. government for over three years based on false allegations that he was involved in terrorism in Iraq before he arrived in the United States as a refugee. Multiple courts have now rejected those allegations. The petition alleges that his continued detention in these circumstances violates the Due Process Clause and the Immigration and Nationality Act.

After an investigation initiated by the Federal Bureau of Investigations (FBI) and the Department of Homeland Security (DHS), the Iraqi government issued a warrant for his arrest in connection with the 2014 murder of a police officer in Rawa, Iraq. Mr. Ameen was subsequently arrested by U.S. authorities in August 2018 and placed in extradition proceedings, with the government arguing that not only was Omar responsible for the 2014 murder, but that he also occupied a leadership position in ISIS. After two and a half years of fighting his extradition, the federal magistrate judge found that the warrant was not supported by probable cause because Mr. Ameen had been in Turkey, not Iraq, at the time of the murder. He further found that there was no evidence that Mr. Ameen was an ISIS leader and ordered his immediate release.

Instead of releasing him or charging him with a crime, DHS took Mr. Ameen into immigration custody, and placed him in removal proceedings before the Department of Justice (DOJ). DHS abandoned the murder claim, but otherwise made the same terrorism allegations against Mr. Ameen in immigration court that had been made – and rejected – in the extradition proceedings. After months of proceedings, the immigration judge found that the government had not proved that Mr. Ameen had any involvement with terrorism, yet still denied him bond while he seeks relief from deportation. Mr. Ameen continues to fight for his freedom, to remain in the United States, and to clear his name.

“It is a fundamental principle that the government cannot detain someone based on unsubstantiated rumors and unproven accusations,” said Ilyce Shugall, an attorney with Immigration Legal Defense (ILD) and a member of Mr. Ameen’s legal team. “The government keeps losing, yet continues to believe it can detain Omar indefinitely without cause. The Constitution does not allow such a cavalier denial of individual liberty.”

“Omar’s bond request was denied by the same agency – the Department of Justice – that has maliciously targeted for him years. Omar deserves a fair hearing in federal court,” said Siobhan Waldron, another ILD attorney on Mr. Ameen’s legal team.

“The government seems to think that it can do whatever it wants as long as it invokes the word ‘terrorism,’” said Nicole Hallett, director of the Immigrants’ Rights Clinic at the University of Chicago Law School, “Rather than admit it was wrong about Omar, the government will go to extraordinary measures to keep him locked up. We are asking the federal court to put a stop to this abuse of power.”

###

Immigrant Legal Defense’s mission is to promote justice through the provision of legal representation to underserved immigrant communities.

The Immigrants’ Rights Clinic is a clinical program of the University of Chicago Law School and provides representation to immigrants in Chicago and throughout the country.

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

Unfortunately, “cavalier denial of individual liberty” largely describes the daily operations of Garland’s dysfunctional and hopelessly backlogged “wholly owned Immigration Courts” — where due process, scholarship, quality, and efficiency are afterthoughts, at best. “Malicious targeting” — that’s a Stephen Miller specialty shamelessly carried forth by Garland in too many instances! Miller must be gratified, and not a little amazed, to find that the guy Dem progressives and human rights advocates thought would be leading the charge to undo Miller’s White Nationalist, scofflaw attack on migrants and people of color would instead be proudly “carrying his water” for him.

To punctuate my point, today Garland’s Solicitor General will follow in the disgraceful footsteps of predecessors in both GOP and Dem Administrations. Essentially (that is, stripped of its disingenuous legal gobbledygook), the SG will argue that individuals, imprisoned without conviction, struggling to vindicate their rights before Garland’s broken, backlogged, and notoriously pro-Government, anti-immigrant Immigration Courts, renowned for their sloppiness and bad judging, are not really “persons” under the Constitution and therefore can be arbitrarily imprisoned indefinitely, in conditions that are often worse than those for convicted felons, without any individualized rationale and without recourse to “real” courts (e.g., Article III courts not directly controlled by the DOJ).

“The right-wing majority on the Supreme Court seems to be planning to eliminate the only way a lot of people in immigration detention can challenge their imprisonment,” appellate public defender Sam Feldman commented in a quote-tweet. “People would still be held illegally, but no court could do anything about it.”  

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/jan-11-2022-sc-oral-arg-previews-detention-bond-jurisdiction

One might assume that our nation’s highest Court would unanimously make short-shrift of the SG’s scofflaw arguments and send her packing. After all, that’s what several lower courts have done! But, most experts predict the exactly opposite result from a Supremes’ majority firmly committed to “Dred Scottification” — that is de-humanization and de-personification” — of people of color and migrants under the Constitution. 

It’s painfully obvious that Congress must create an independent Article I Immigration Court not beholden to the Executive Branch. But, don’t hold your breath, given the current political gridlock in Washington. It’s equally clear that the Article IIIs, from the Supremes down, have “swallowed the whistle” by not striking down this blatantly unconstitutional system, thereby forcing Congress to take corrective action to bring the system into line with our Constitution.

In the meantime, Garland could bring in better-qualified expert judges, reform procedures, and appoint competent professional administrators who would institutionalize fairness, efficiency, and independence that would help transition the Immigration Courts to a new structure outside the DOJ. He could stop echoing Stephen Miller in litigation. 

He could have replaced the architects of “Aimless Docket Reshuffling” and exponentially growing back logs with practical scholars and progressive experts who could reduce backlogs and establish order without violating human or legal rights of individuals. He could have set a “new tone” by publicly insisting that all coming before his Immigration Courts be treated fairly, with respect, dignity, and professionalism. 

But, instead, Garland has stubbornly eschewed the recommendations of immigration and human rights experts while allowing and even defending the trashing of the rule of law at the border and elsewhere where migrants are concerned. He’s also done it with many questionably qualified “holdover” judges and administrators appointed by Sessions and Barr because of their perceived willingness, or in some cases downright enthusiasm, to stomp on the legal and human rights of asylum seekers and other migrants.

It’s curious conduct from a guy who once was only “one Mitch McConnell away” from a seat on the Supremes! I guess the “due process” Garland got from McConnell and his GOP colleagues is all that he thinks migrants and other “non-persons” of color get in his wholly-owned “courts.” 

Good luck to our Round Table colleague, Judge Ilyce Shugall, and her great team, on this litigation! Obviously, the wrong folks are on the Federal Bench — at all levels of our broken and floundering system.

Interestingly, Judge Shugall was once an Immigration Judge until forced to prematurely resign, as a matter of conscience, by the lawless anti-immigrant policies of the Trump Administration carried out through its DOJ. As in many cases, the Government’s loss is the Round Table’s gain!🛡⚔️

Knightess
Knightess of the Round Table

🇺🇸Due Process Forever!

PWS

01-11-22

☠️🤮UNDER NEW MISMANAGEMENT: Trump’s “New American Gulag” (“NAG”) Now Being Run By Biden, Harris, & Mayorkas, With Garland’s Embedded “Star Chambers” — Coercion, Denial Of Right To Counsel Endemic In Illegal, Immoral, Secretive Biden “Civil” Prison System! — “[W]ithout having knowledge, we’ll go directly to the slaughterhouse!” ⚰️ — That’s The Goal Of “Detention & Deterrence!”

Slaughterhouse
“[W]ithout having knowledge, we’ll go directly to the slaughterhouse!”
Creative Commons License
Star Chamber Justice
“Do you still want to talk to a lawyer, or are you ready to take a final order?” “Justice” Star Chamber Style
Emma Winger
Emma Winger
Staff Attorney
American Immigration Council
PHOTO: Immigration Impact

https://immigrationimpact.com/2021/10/29/ice-detention-contact-lawyer/

Emma Winger writes on Immigration Impact:

“Ben G.” is a 35-year-old veterinarian from Nicaragua who fled to the United States after he was beaten and tortured by police. When he crossed the border into the United States, he requested asylum. U.S. Immigration and Customs Enforcement (ICE) eventually transferred Ben to the Winn County Correctional Center, an ICE detention facility in rural Louisiana located four hours away from the nearest metropolitan area. It is also the facility with the fewest immigration attorneys available in the entire country.

Despite passing the government’s initial screening and having  a credible fear of persecution, Ben was still unable to find a lawyer. As a fellow detained person noted, “without having knowledge, we’ll go directly to the slaughterhouse.”

Ben’s story illustrates the monumental barriers that detained immigrants face in finding lawyers to represent them. As described in a letter sent October 29 by the American Immigration Council, the ACLU, and 88 legal service provider organizations to Department of Homeland Security Secretary Alejandro Mayorkas, ICE detention facilities have systematically restricted the most basic modes of communication that detained people need to connect with their lawyers and the rest of the outside world, including phones, mail, and email access.

This must change. The immigration detention system is inherently flawed, unjust, and unnecessary. The best way to eliminate these barriers to justice is to release people from detention.

Although immigrants have the right to be represented by lawyers in immigration proceedings, they must pay for their own lawyers or find free counsel, unlike people in criminal custody who have the right to government-appointed counsel. In many cases, detained immigrants cannot find lawyers because ICE facilities make it so difficult to even get in touch and communicate with attorneys in the first place.

The importance of legal representation for people in immigration proceedings cannot be overstated. Detained people with counsel are 10 times more likely to win their immigration cases than those without representation. Yet  the vast majority of detained people — over 70% — faced immigration courts without a lawyer this year.

ICE has set the stage for this problem by locating most immigration detention facilities far from cities where lawyers are accessible. Each year, ICE locks up hundreds of thousands of people in a network of over 200 county jails, private prisons, and other carceral facilities, most often in geographically isolated locations, far from immigration attorneys.

Even when attorneys are available and willing to represent detained people, ICE detention facilities make it prohibitively difficult for lawyers to communicate with their detained clients, refusing to make even the most basic of accommodations. For example, many ICE facilities routinely refuse to allow attorneys to schedule calls with their clients.

As described in the letter, the El Paso Immigration Collaborative reported that staff at the Torrance County Detention Facility in New Mexico have told their lawyers that they simply don’t have the capacity to schedule calls in a timely manner, delaying requests for more than one week or more.

The University of Texas Law School’s Immigration Law Clinic attempted to schedule a video teleconferencing call with a client at the South Texas ICE Processing Center. An employee of the GEO Group, Inc., which runs the facility, told them that no calls were available for two weeks.

. . . .

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

A “Jim Crow Mentality” of never being held accountable for abuses of law or human morality permeates the politicos, legislators, and Federal Judges of both parties responsible for enabling and upholding this toxic system. 

Nowhere is this more obvious than at the DOJ Civil Rights Division. While pontificating on racially abusive local police policies and actions, these folks go to great lengths to overlook the DOJ-run “Star Chamber Courts” embedded in DHS’s “New American Gulag” that disproportionally harm persons of color and deny them basic legal, civil, and human rights every day. 

This system is thoroughly rotten! Yet, Garland’s DOJ “defends the indefensible” in Federal Court almost every day.

🇺🇸⚖️ Due Process Forever!

PWS

10-30-21

⚖️YET ANOTHER BIA PRECEDENT, MATTER OF SORAM, 25 I&N DEC. 378 (BIA 2010), BITES THE DUST IN 9TH CIR. — “We conclude that the text of 8 U.S.C. § 1227(a)(2)(E)(i) unambiguously forecloses the BIA’s interpretation of “a crime of child abuse, child neglect, or child abandonment” as encompassing negligent child endangerment offenses.” — Diaz-Rodriguez v. Garland (2-1)

Diaz-Rodriguez v. Garland, 9th Cir., 09-10-21, published

Here’s the opinion:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/10/13-73719.pdf

PANEL: Consuelo M. Callahan and*Paul J. Watford, Circuit Judges, and Jed S. Rakoff, District Judge.

Opinion by Judge Watford; Dissent by Judge Callahan

* The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation.

STAFF SUMMARY:

Granting Rafael Diaz-Rodriguez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that child endangerment, in violation of California Penal Code § 273a(a), does not constitute “a crime of child abuse, child neglect, or child abandonment” within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i).

In Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018), a divided panel held to the contrary, and a majority of the non-recused active judges voted to rehear the case en banc. However, after the petitioner passed away, the en banc court dismissed the appeal as moot and vacated the panel decision. The panel here observed that Martinez-Cedillo is no longer binding precedent, but explained that between its issuance and the decision to rehear the case en banc, two published opinions relied on it: Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), and Alvarez-Cerriteno v. Sessions, 899 F.3d 774 (9th Cir. 2018).

The panel concluded that the unusual circumstance here led it to conclude that this case falls outside the scope of the general rule that three-judge panels are bound to follow published decisions of prior panels. The panel explained that both Alvarez-Cerriteno and Menendez simply followed Martinez-Cedillo as then-binding precedent without engaging in independent analysis of the deference issue, and

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

DIAZ-RODRIGUEZ V. GARLAND 3

both decisions were effectively insulated from en banc review on that issue. The panel explained that both decisions are irreconcilable with a subsequent decision of the court sitting en banc because their reliance on Martinez-Cedillo is in conflict with the en banc court’s decision to designate that decision as non-precedential.

Applying the categorical approach, the panel identified the elements of California Penal Code § 273a(a): causing or permitting a child “to be placed in a situation where his or her person or health is endangered,” committed with a mens rea of criminal negligence. As to the federal offense, the panel explained that Congress enacted the ground of removability at 8 U.S.C. § 1227(a)(2)(E)(i) as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and did not define the phrase “a crime of child abuse, child neglect, or child abandonment.” In Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), however, the BIA held that the phrase encompassed child endangerment offenses committed with a mens rea of at least criminal negligence. In considering whether Soram was entitled to deference, the panel was guided by the Supreme Court’s decision in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), where the Court observed that the term “sexual abuse of a minor” was undefined and then looked to normal tools of statutory interpretation in concluding that the statute unambiguously forecloses the BIA’s interpretation of it.

Applying this approach, the panel concluded that deference was precluded at Chevron step one because the text of §1227(a)(2)(E)(i) unambiguously forecloses the BIA’s interpretation as encompassing negligent child endangerment offenses. First, the panel explained that contemporary legal dictionaries from the time of IIRIRA’s enactment indicate that child abuse, child neglect, and child

4 DIAZ-RODRIGUEZ V. GARLAND

abandonment were well-understood concepts with distinct meanings that do not encompass one-time negligent child endangerment offenses. Second, the panel explained that the statutory structure suggested that Congress deliberately omitted child endangerment from the list of offenses specified in § 1227(a)(2)(E)(i). Third, the panel explained that the general consensus drawn from state criminal codes confirms that the phrase does not encompass negligent child endangerment offenses. The panel noted that the fourth source consulted in Esquivel-Quintana, related federal criminal statutes, did not aid its analysis.

Because a violation of California Penal Code § 273a(a) can be committed with a mens rea of criminal negligence, the panel concluded that it is not a categorical match for “a crime of child abuse, child neglect, or child abandonment.” Accordingly, the panel concluded that Diaz-Rodriguez’s conviction under that statute did not render him removable under § 1227(a)(2)(E)(i).

Dissenting, Judge Callahan wrote that she was compelled to dissent for two reasons. First, she did not agree that the three-judge panel could disregard Menendez and Alvarez-Cerriteno. Second, Judge Callahan did not agree with the majority’s peculiar reading of the phrase as not encompassing a child endangerment offense committed with a mens rea of at least criminal negligence. Judge Callahan wrote that majority’s suggestion that § 1227(a)(2)(E)(i) is unambiguous is contrary to precedent and the unanimous opinions of the court’s sister circuits. Moreover, she wrote that the majority failed to recognize that the court’s task is limited to reviewing the agency’s interpretation for “reasonableness.” Instead, the majority proffered its own definition based primarily on selected dictionary definitions and its own research.

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

Who knows how this eventually will come out? But, what I can guarantee is until it is finally resolved, by the Supremes or otherwise, immigration practitioners and their clients will have a mess of inconsistency and bad decisions by EOIR on their hands.

Complicated issues involving criminal law come up all the time in EOIR “detention courts,” located in the Mayorkas/Garland “New American Gulag,” where many respondents are unrepresented or under-represented. How would an unrepresented respondent be able to prepare a “defense” like this? No way! The entire EOIR system suffers from some extreme constitutional problems that Garland has done nothing to address.

Having bad precedents like this in effect for a decade or more, almost always tilted toward DHS enforcement, results in many wrongful removals, as well as numerous remands and “redos” that help increase the astronomical 1.4 million case backlog! Having better judges on the BIA, real independent jurists with practical scholarly expertise, unafraid to interpret statutes and apply the law in favor of respondents when that is the “better view,” and to impose “best practices” on the Immigration Courts, is a necessary first step in addressing EOIR’s many legal and operational shortcomings.

It appears that Garland is disinterested in meaningful due process reforms and inserting real progressive judicial leadership into EOIR. The good news: With the vast majority of the immigration, human rights, and constitutional expertise and legal talent now in the private sector, and more talent coming out of law schools all the time, the NDPA stands a good chance of “litigating Garland’s failed EOIR to a standstill” over the next four years.

While that’s hardly the most desirable result, it would be infinitely better than the continuing due-process-denying “Clown Show” 🤡 that Garland currently runs at EOIR! Sometimes, you just have to take what the opposition gives you!

At what point will “powers that be” finally pay attention to the ongoing disaster at EOIR? When the backlog reaches 1.5 million? 2 million? 3 million? 4 million? 5 million? How many unjust and illegal removals will take place, and how many lives and futures irrevocably altered or ruined before this dysfunctional system finally reaches its “breaking point?”

EYORE
“Eyore is completely distraught that Garland has eschewed installing progressive expert judging and creative thinking, instead allowing the ‘death spiral’ to continue!” “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

 

🇺🇸Due Process Forever!

PWS

09-13-21

🇺🇸🗽⚖️NDPA VIRTUAL OPPORTUNITY: Meet Rising Superstar 🌟  & Social Justice Advocate Denea Joseph, Current Ousley Social Justice Resident @ Beloit College — Friday, Sept. 17 @ 7:00 PM CDT — FREE Virtual Link Here!

Of interest? You can join virtually.

———- Forwarded message ———

From: Atiera Lauren Coleman <colemana@beloit.edu>

Date: Wed, Sep 8, 2021 at 3:10 PM

Subject: [EVENT] Ousley Residency: All Black Lives Matter: Black Immigrants and the Immigrants’ Rights Movement

To: <facstaff@lists.beloit.edu>

Ousley Residency Keynote Speaker

Denea Joseph

Friday, September 17, 7:00 PM – In-person & Virtual – (Add to Google Calendar)

BTYB – Student Success, Equity, and Community and the Weissberg Program in Human Rights & Social Justice

The Office of Student Success, Equity & Community Ousley Scholar In Residency honors the legacy of Grace Ousley, the first black woman to graduate from Beloit College. It is a junior scholar/activist/organizer/intellectual committed to the theory and practice of social justice. They should embody the “academic hustler” who fights for “social justice” in all aspects of their work. Support for the residency comes from the Weissberg Program in Human Rights and Social Justice and the Office of Student Success. Equity & Community.

pastedGraphic.png

Event Details

Date: Friday, September 17, 2021

Time: 7:00 PM -8:30 PM

How to attend

In-person – Weissberg Auditorium – Powerhouse

Virtual – Join Zoom Meeting  https://beloit.zoom.us/j/81172664933

 

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

This promises to be a great program! And, the Ousley Residence Program is a fantastic contribution to educating and inspiring new generations of Americans about the many challenges still facing us in achieving social justice in our nation.

The abrogation of due process and dehumanization of people of color has, outrageously, become part of the dysfunctional U.S. Immigration Court System. The last Administration specifically encouraged and promoted this ugly, anti-democracy, phenomenon and then used it to spearhead an all-out assault on racial justice, gender equality, LGBTQ rights, religious tolerance, economic progress, voter rights, and humane progressive values throughout American society.

Unfortunately, many progressives have been slow to “connect the dots” and insist that meaningful social justice change start with fixing the racial and gender bias problems in our Immigration Courts, tribunals that are under the complete control of the Biden Administration!

For example, current Attorney General Merrick Garland rather incredibly claims to be standing up for women’s rights in Texas and defending voting rights for minorities while continuing to run misogynistic, regressive “Star Chambers” at EOIR, staffed with many judges hand-selected by Jeff Sessions and Billy Barr, and tossing vulnerable women refugees of color back across our Southern Border into harm’s way without any “process” at all, let alone “Due Process of Law.” Garland also continues to enable human rights abuses in the “New American Gulag” of DHS civil detention! We can see this process of dehumanization of the “other” before the law, called “Dred Scottification” by many of us, spreading throughout our legal system and being endorsed and “normalized” all the way up to the Supremes.

From the summary in the announcement above, it appears that Denea, based on her own inspiring life and achievements as a “Dreamer,” will help us to “connect the dots” between racial justice, immigrant justice, and equal justice for all. Immigrants’ Rights = Human Rights = Everyone’s Rights!

🇺🇸Due Process Forever!

PWS

09-09-21

☠️⚰️👎🏽BIDEN ADMINISTRATION EMBRACES “NEW AMERICAN GULAG” — SUPREMES LIKELY TO HELP THEM OUT!🤮

Gulag
Inside the Gulag — PHOTO: Creative Commons
In the fine tradition of Josef Stalin, like US Presidents before him, President Biden finds it useful to have a “due process free zone” to stash people of color and other “undesirables” whose “crime” is to demand due process under law! How subversive!

https://lawprofessors.typepad.com/immigration/2021/08/supreme-court-to-review-bond-hearings-for-detained-immigrants.html

Dean Kevin Johnson posts on ImmigrationProf Blog:

Monday, August 23, 2021

Supreme Court To Review Bond Hearings For Detained Immigrants

By Immigration Prof

Share

The Supreme Court has decided a number of immigrant detention cases in recent years.  Next Term brings another case.    Alyssa Aquino for Law360 reports that the Court agreed today to review a Ninth Circuit decision that required bond hearings for immigrants who have been detained for more than six months with final removal orders.  A split ruled that the Immigration and Nationality Act requires the federal government to hold bond hearings for detained migrants, and that the government bears the burden of proving that detainees are a flight risk or public safety threat.

The consolidated  cases are Garland. v. Gonzalez and Tae D. Johnson v. Guzman Chavez.  Amy Howe on SCOTUSBlog offers some background on the cases her.

 

KJ

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

Notice any difference between the Biden-Harris campaign rhetoric and actual performance once elected?

Never know when a “due process free zone” where individuals not charged with crimes can be detained forever without individualized bond determinations will be a handy hammer to have in your toolbox!

And, don’t forget those huge profits being raked in by the private detention industry, so beloved by DHS and politicos who receive contributions and can tout the “job creation” in the Gulag! Also, states and localities who rent out substandard prison space on questionable contracts love the Gulag!

Significantly, none of the lower court decisions the Biden Administration seeks to overturn requires the release of anyone! Nope! All the lower courts have done is to give the “civil prisoners” a right to plead their cases for release and to require the Government to provide an individualized rationale for continued indefinite detention! Sure sounds like simple due process to me!

Maybe, if Garland, Mayorkas, and the Supremes had a chance to spend a few “overnights in the Gulag” they would take the Fifth Amendment’s application to people of color in our nation and pleading for their lives at our borders more seriously!

🇺🇸Due Process Forever! The “New American Gulag,” Never!

PWS

08-24-21

🇺🇸⚖️🗽👍🏼😎NDPA GOOD GUYS WIN SOME BIGGIES TOO! — 1ST CIRCUIT FINDS EOIR BOND PROCESS UNCONSTITUTIONAL AS DENIAL OF DUE PROCESS! — Hernandez-Lara v. Lyons!

Here’s the (split) decision:

1st on Bond

Here’s a key quote from Circuit Judge Kayatta’s majority opinion:

KAYATTA, Circuit Judge. Ana Ruth Hernandez-Lara (“Hernandez”), a thirty-four-year-old native and citizen of El Salvador, entered the United States in 2013 without being admitted or paroled. An immigration officer arrested Hernandez in September 2018, and the government detained her at the Strafford County Department of Corrections in Dover, New Hampshire (“Strafford County Jail”) pending a determination of her removability. Approximately one month later, Hernandez was denied bond at a hearing before an immigration judge (IJ) in which the burden was placed on Hernandez to prove that she was neither a danger to the community nor a flight risk.

Hernandez subsequently filed a petition for a writ of habeas corpus in the United States District Court for the District of New Hampshire, contending that the Due Process clause of the Fifth Amendment entitled her to a bond hearing at which the government, not Hernandez, must bear the burden of proving danger or flight risk by clear and convincing evidence. The district court agreed and ordered the IJ to conduct a second bond hearing at which the government bore the burden of proving by clear and convincing evidence that Hernandez was either a danger or a flight risk. That shift in the burden proved pivotal, as the IJ released Hernandez on bond following her second hearing, after ten months of detention. The government now asks us to reverse the judgment

-3-

Case: 19-2019 Document: 00117776979 Page: 4 Date Filed: 08/19/2021 Entry ID: 6441266

of the district court, arguing that the procedures employed at Hernandez’s original bond hearing comported with due process and, consequently, that the district court’s order shifting the burden of proof was error. Although we agree that the government need not prove a detainee’s flight risk by clear and convincing evidence, we otherwise affirm the order of the district court. Our reasoning follows.

. . . .

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

Note that the Garland GOJ continued to defend EOIR’s unconstitutional procedures. So, don’t be shocked if they ask the Supremes to intervene. And the current Supremes have too often been happy to ignore the Due Process Clause when it comes to the rights of migrants of color.

But, it’s some progress toward eventually dismantling the “New American Gulag” — the one that Biden is still running (despite campaign promises to the contrary) and that righty Federal Judges and nativist GOP AGs in the Fifth Circuit are committed to expanding!

For the NDPA, the war to save humanity never ends!

🇺🇸Due Process Forever!

PWS

08-20-21

THE GIBSON REPORT — 08-16-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Garland DOJ Continues To Defend Miller’s White Nationalist Agenda In (Far Too) Many Cases, Private Prisons Continue To Cash In On Biden’s Continuation Of Trump/Miller “New American Gulag!”

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

NEWS

 

US curtailing evacuation flights of Afghans to US for now to prioritize Americans

CNN: As of last Thursday, 1,200 Afghans and their families had been evacuated to America… According to sources familiar with the matter, Biden national security officials told senators during a briefing on Afghanistan Sunday that there are as many as 60,000 Afghans who could potentially qualify as SIV holders or applicants, P1/P2 refugees, or others like human rights defenders and could need evacuation. See also ‘Forget the visas’: The scramble is on to save Afghan partners as Taliban close in; In desperation, U.S. scours for countries willing to house Afghan refugees.

 

Federal judge orders Biden administration to reinstate ‘Remain in Mexico’ policy

USAToday: Judge Matthew Kacsmaryk, a Trump appointee, directed the Biden administration to reinstate the program, saying the administration “failed to consider several critical factors” when ending the program. Kacsmaryk delayed his order for seven days to give the administration a chance to appeal.

 

U.S. to expand online asylum registration amid ‘unprecedented’ border arrivals

Reuters: Mayorkas, speaking at a news conference in south Texas, did not provide details about which asylum seekers would be eligible to use the online system, but said further asylum changes would be announced in the coming days.

 

July was busiest month for illegal border crossings in 21 years, CBP data shows

WaPo: The number of migrants detained along the Mexico border crossed a new threshold last month, exceeding 200,000 for the first time in 21 years, according to U.S. Customs and Border Protection enforcement data released Thursday.

 

In Texas, a Quarantine Camp for Migrants With Covid-19

NYT: By this week, at least 1,000 migrants were housed at the teeming camp, erected by the nearby city of McAllen as an emergency measure to contain the spread of the virus beyond the southwestern border. About 1,000 others are quarantined elsewhere in the Rio Grande Valley, some of them in hotel rooms paid for by a private charity.

 

Biden railed against Trump’s immigration policies, now defends them in courts

Politico: Thousands of lawsuits on every aspect of immigration policy are pending from the Trump years — from challenges to the government’s moves to block asylum for specific individuals to roughly 100 lawsuits filed by the government to gain access to or seize land near the southern border for Trump’s border wall.

 

How a Private Prison Company Profits from Biden’s Broken Immigration Pledge

Newsweek: [S]ix months in, Biden’s administration and his Democrat-led Congress are spending millions more taxpayer dollars to expand detention and surveillance of immigrants. A private prison company is profiting from both.

 

Mexico has pushed hundreds of migrants expelled from the U.S. on to Guatemala, stranding them in a remote village far from their homes

WaPo: Last week, the Biden administration began the expulsion flights from the United States to the southern Mexican city of Villahermosa in a bid to deter repeat border crossers. Mexico agreed to accept those flights and said it would allow those who feared persecution in their home countries to apply for asylum. But the migrants — mostly from Honduras, El Salvador and Guatemala — who have arrived in the remote Guatemalan border town of El Ceibo describe a chaotic series of expulsions, first from the United States in planes and then from Villahermosa to Guatemala by bus. They say they were not given an opportunity to seek refuge in Mexico.

 

ICE to avoid arrest and deportation of undocumented victims of crime under new policy

CNN: The agency’s new policy, issued Wednesday, marks the latest effort by the Biden administration to pivot from the Trump administration and tailor enforcement priorities. Going forward, ICE will require agents and officers to help undocumented victims seek justice and facilitate access to immigration benefits, according to the agency.

 

Some 100,000 Green Cards at Risk of Going to Waste in Covid-19 Backlog

WSJ: The situation complicates what has already been a yearslong wait for many of the 1.2 million immigrants—most of them Indians working in the tech sector—who have been waiting in line to become permanent residents in the U.S. and are watching a prime opportunity to win a green card slip away.

 

Death toll in Haiti earthquake climbs to 1,297 as search continues for survivors

CBS: The death toll from a magnitude 7.2 earthquake in Haiti soared to at least 1,297 Sunday as rescuers raced to find survivors amid the rubble ahead of a potential deluge from an approaching tropical storm. Saturday’s earthquake also left at least 2,800 people injured in the Caribbean nation, with thousands more displaced from their destroyed or damaged homes.

 

Hochul’s Past Push to Arrest Immigrants Resurfaces as She Readies to Replace Cuomo

TheCity: Lt. Gov. Kathy Hochul, speaking publicly for the first time as New York’s governor-to-be, insisted Wednesday she’s “evolved” since fighting against driver’s licenses for undocumented immigrants by threatening them with possible arrest and deportation.

 

LITIGATION/CASELAW/RULES/MEMOS

 

BIA Dismissed Appeal After Finding NACARA Grant Bars Applicant from Applying for Cancellation

AILA: The BIA dismissed the appeal after concluding that the respondent’s prior receipt of special rule cancellation of removal under the NACARA bars her from applying for cancellation of removal. Matter of Hernandez-Romero, 28 I&N Dec. 374 (BIA 2021)

 

3rd Circ. OKs NJ AG’s Limit On Sharing Immigration Info

Law360: The Third Circuit signed off Monday on an order from the New Jersey Attorney General’s Office barring law enforcement agencies from sharing certain information with federal immigration authorities, ruling in a precedential opinion that two federal statutes do not bar the directive since they regulate states and not private actors.

 

CA4 Upholds BIA’s Asylum Denial to Former Member of MS-13 Gang in El Salvador

AILA: The court upheld the BIA’s denial of asylum to the Salvadoran petitioner, finding that his proposed particular social groups of “former members of MS-13” and “former members of MS-13 who leave for moral reasons” were overbroad and lacked social distinction. (Nolasco v. Garland, 8/2/21)

 

CA5 Says It Lacks Jurisdiction to Review BIA’s Prima Facie Hardship Determination Pursuant to INA §242(a)(2)(B)(i)

AILA: The court held that it lacked jurisdiction to review the BIA’s finding that the petitioner had not presented prima facie evidence of her eligibility for cancellation of removal pursuant to INA §242(a)(2)(B)(i). (Parada-Orellana v. Garland, 8/6/21)

 

CA8 Upholds Denial of Motion to Reopen Based on Changed Country Conditions in Somalia

AILA: The court held that the BIA did not abuse its discretion in denying the petitioner’s motion to reopen, where the evidence showed that the poor conditions facing homosexuals and Christians in Somalia have remained substantially similar since the time of her hearing. (Yusuf v. Garland, 8/9/21)

 

CA8 Finds “Mexican Mothers Who Refuse to Work for the Cartel” Is Not a PSG

AILA: The court held that the BIA did not err in finding that the petitioner’s proposed particular social group (PSG) of “Mexican mothers who refuse to work for the Cartel Jalisco Nueva Generación” was not sufficiently particularized or socially distinct. (Rosales-Reyes v. Garland, 8/4/21)

 

CA8 Finds BIA Did Not Err in Excluding Petitioner’s Mental Health Issues from PSC Analysis

AILA: The court found that because petitioner had failed to rebut the presumption set out in the Attorney General’s decision in In re Y-L-, the BIA did not err in not considering her mental health as a factor in the particularly serious crime (PSC) analysis. (Gilbertson v. Garland, 8/2/21)

 

8th Circ. Grants Appeal For U Visa Seeker And Daughters

Law360: The Board of Immigration Appeals was wrong to deny administrative closure to a Mexican woman and her daughters while they had a U visa petition pending, an Eighth Circuit panel ruled, faulting the board’s reliance on now-vacated precedent.

 

CA9 Holds That BIA Applied Wrong Burden of Proof to Petitioner’s Adjustment of Status Application

AILA: Granting the petition for review, the court held that, because petitioner was not an applicant for admission, the BIA impermissibly applied the “clearly and beyond doubt” burden of proof in finding him inadmissible and therefore ineligible for adjustment of status. (Romero v. Garland, 8/2/21)

 

CA9 Remands for BIA to Consider Petitioner’s Social Group Claim Based on His Perceived Gang Membership

AILA: The court remanded for the BIA to consider in the first instance whether the petitioner was eligible for withholding of removal on account of his membership in the particular social group of “people erroneously believed to be gang members.” (Vasquez-Rodriguez v. Garland, 8/5/21)

 

CA9 Holds That Convictions Under Hawaii’s Fourth Degree Theft Statute Are Not Categorically CIMTs

AILA: The court held that Hawaii’s fourth degree theft statute, a petty misdemeanor involving property of less than $250, is overbroad with respect to the BIA’s definition of a crime involving moral turpitude (CIMT) and is indivisible, and granted the petition for review. (Maie v. Garland, 8/2/21)

 

CA9 Marijuana Conviction Costs Man Deportation Relief

Law360: The Ninth Circuit denied a Mexican man’s appeal of his deportation order Wednesday, saying the Board of Immigration Appeals was correct in ruling that his past conviction for marijuana possession made him ineligible for cancellation of removal.

 

CA11 Finds Florida Conviction for Being a Felon in Possession of a Firearm Is Not a “Firearm Offense” Under the INA

AILA: The court held that the petitioner’s conviction in Florida under Fla. Stat. §790.23(1)(a) for being a felon in possession of a firearm did not constitute a “firearm offense” within the meaning of INA §237(a)(2)(C) and its cross-reference to 18 USC §921(a)(3). (Simpson v. Att’y Gen., 8/4/21)

 

DOJ’s Block Of Texas’ Migrant Transport Order Extended

Law360: A Texas federal judge on Friday extended for an additional 14 days an emergency order temporarily blocking Gov. Greg Abbott’s executive order restricting ground transportation of migrants detained at the border amid the COVID-19 pandemic.

 

National Security Vetting Is Said To Illegally Delay Green Card

Law360: An American who has waited years for his Pakistani wife to have her green card application processed is suing the federal government, blaming their visa limbo on what they call an illegal national security vetting program.

 

ICE Releases Updated Guidance Regarding Civil Immigration Enforcement Actions Involving Noncitizen Crime Victims

AILA: ICE released ICE Directive 11005.3, Using a Victim-Centered Approach with Noncitizen Crime Victims, with guidance on how it will handle civil immigration enforcement actions involving noncitizen crime victims.

 

USCIS Provides Guidance on Afghan Special Immigrant Parolee and LPR Status

AILA: USCIS SAVE issued guidance regarding Afghans who are eligible for Special Immigrant Visas and their special immigrant LPR status or special immigrant parole that meets the special immigrant requirement for certain government benefits.

AILA Doc. No. 21081344

 

USCIS Temporarily Extending Validity Period of Form I-693

AILA: USCIS stated that 8/12/21 through 9/30/21, it will extend the validity period for Form I-693, Report of Medical Examination and Vaccination Record, from two years now to four years due to COVID-19-related delays in processing. Guidance is effective 8/12/21, and comments are due by 9/13/21.

 

Executive Order Suspending Entry of Certain Persons Contributing to the Situation in Belarus

AILA: Executive order issued 8/9/21, imposing sanctions on those determined to have contributed to the suppression of democracy and human rights in Belarus, including suspending the unrestricted immigrant and nonimmigrant entry into the United States of such persons. (86 FR 43905, 8/11/21)

 

Presidential Memo on Deferred Enforced Departure for Hong Kong

AILA: On 8/5/21, President Biden issued a memo directing DHS to defer for 18 months the removal of Hong Kong residents present in the United States on 8/5/21, with certain exceptions. (86 FR 43587, 8/10/21)

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

Monday, August 16, 2021

Sunday, August 15, 2021

Saturday, August 14, 2021

Friday, August 13, 2021

Thursday, August 12, 2021

Wednesday, August 11, 2021

Tuesday, August 10, 2021

Monday, August 9, 2021

 

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

Thanks, Elizabeth!

The article by Anita Kumar in Politico should be an “eye opener” for those progressive advocates who think Garland is committed to due process, equal justice, and best practices in Immigration Court and elsewhere in the still dysfunctional immigration bureaucracy. This particular quote stands out:

“The Department of Justice really was a center of gravity for some of the most…hideous anti- immigrant policies that came out of the Trump administration and really was in some ways ground zero for the anti-immigrant agenda of Donald Trump,” said Sergio Gonzales, who worked on the Biden transition and serves as executive director of the Immigration Hub. “And this is why it’s so critical that DOJ moves swiftly and aggressively to undo that agenda.”

I dare any advocate to claim Garland has moved “swiftly and aggressively” to undo the Miller White Nationalist agenda! Yes, after a crescendo of outrage and public pressure from NGOs, he has vacated four of the worst xenophobic and procedurally disastrous precedents. But, there are dozens more out there that should have been reversed by now.

More important, returning the law to its pre-Trump state is highly unlikely to bring meaningful change and fairer results as long as far too many of the Immigration Judges and BIA Judges charged with applying that law are Trump-era appointees, some with notorious records of anti-immigrant bias and a number who have denied almost every asylum case that came before them. (And, it’s not like A-R-C-G- was fairly and consistently applied during the Obama Administration, which largely gave “the big middle finger” to progressives in appointments to the Immigration Judiciary).

Is an IJ who was denying nearly 100% of A-R-C-G- cases (and in some cases misogynistically demeaning female refugees in the process) even prior to A-B- suddenly going to start granting legal protection? Not likely!

Are BIA Judges who got “elevated” under Trump by being notorious members of the “Almost 100% Denial Club” suddenly going to have a “group ephifany” and start properly and generously applying A-R-C-G- to female refugees and insisting that trial judges do the same? No way!

Is a BIA where notorious asylum deniers are heavily over-represented and others have shown a pronounced tendency to “go along to get along” with Miller-type xenophobic White Nationalist policies now going to do a “complete 360” and start churning out “positive precedents” requiring IJs to fairly and generously grant asylum as contemplated in long-forgotten (yet still correct) precedents like Cardoza-Fonseca, Mogharrabi, and Kasinga? Not gonna happen!

Will a few rumored, long delayed progressive expert appointments to the Immigration Judiciary “turn the tide” of  systemic dysfunction, intellectual dishonesty, anti-immigrant, anti-asylum “culture,” lack of expertise, and dereliction of due process and fundamental fairness at EOIR? Of course not! 

So, progressives, don’t kid yourselves that Garland has “seen the light” and is on your side. Judge him by his actions and appointments!

Note, that unlike Sessions and Barr, it’s actually hard to judge Garland on his rhetoric, because there isn’t much. He’s five months into running a nationwide system of dysfunctional “star chambers.” 

But, to date, he hasn’t uttered a single inspiring pronouncement on returning due process, fundamental fairness, human dignity, decisional excellence, or professionalism to EOIR, connecting the dots between immigrant justice and racial justice, or given any warning that those who don’t “get the message” will be getting different jobs or heading out the door.  

I still remember my first personal encounter with AG Janet Reno when she exhorted everyone at the BIA to promote “equal justice for all!” I still think of it, and it’s still “on my daily agenda” — over a quarter century later, even after the end of my EOIR career! 

Where are Garland’s “inspiring words” or “statements of values” on immigrant justice and equal justice for all! Actions count, but rhetoric in support of those actions is also important. So far, Garland basically has “zeroed out” on both counts!

Yes, along with the entire immigration community, I cheered the appointment of Lucas Guttentag! But, Lucas isn’t deciding cases, nor has he to date brought the progressive experts to EOIR Management and repopulated the BIA with progressive expert judges who will end the due process abuses and grotesque injustices at EOIR and start holding IJs with anti-asylum, anti-migrant, anti-due-process agendas accountable.

Also unacceptably, progressive litigators haven’t been brought in to assume control of the Office of Immigration Litigation (“OIL”) and end wasteful, and often ethically questionable, defense of the indefensible in immigration cases in the Article IIIs. 

We need bold, progressive, due process/fundamental fairness/racial justice reforms! It’s got to start with major progressive personnel changes! And, it should already have started at EOIR!

The best laws, regulations, precedents, and policies in the world will remain ineffective so long as far too many of those judges and senior executives charged with carrying them out lack demonstrated commitment to progressive values, not to mention relevant, practical expertise advancing human and civil rights!

Contrary to what many think, bureaucracy can be moved by those with the knowledge, guts, determination, and commitment to do it! Seven months after Biden’s inauguration, the DOJ remains a disaster with the situation at EOIR leading the way! 

It didn’t have to be that way! It’s unacceptable! Foot dragging squanders opportunities, wastes resources, and, worst of all, actually costs lives and futures where immigration is at stake. This isn’t “ordinary civil litigation!” It’s past time for tone-deaf and inept Dem Administrations to stop treating it as such!

The following item from Angelika Albaladejo at Newsweek should also be a “clarion call” to advocates who might have thought this Administration (and even Congressional Dems) has a real interest in human rights reforms.

Here’s the essence:

President Joe Biden promised to end prolonged immigration detention and reinvest in alternatives that help immigrants navigate the legal process while living outside of government custody. These promises were part of Biden’s campaign platform and the reform bill he sent to Congress on his first day in the White House.

But six months in, Biden’s administration and his Democrat-led Congress are spending millions more taxpayer dollars to expand detention and surveillance of immigrants. A private prison company is profiting from both.

Meanwhile, community case management—which past pilot programs and international studies suggest is less expensive while more effective and humane—is receiving comparatively little support.

Same old same old! Election is over, immigration progressives who helped elect Dems are forgotten, and human rights becomes an afterthought —  or, in this case, worse!

Progressives must continue to confront a largely intransigent and somewhat disingenuous Administration. A barrage of litigation that will tie up the DOJ until someone pays attention and, in a best case, forces change on a tone-deaf and recalcitrant Administration, is a starting point. 

But, it’s also going to take concerted political pressure from a group whose role in the Dem Party and massive contributions to stabilizing our democracy over the past four years is consistently disrespected and undervalued (until election time) by the “Dem political ruling class!”

Legislation to create an Article I Immigration Court and get Garland, his malfunctioning DOJ, and his infuriating “what me worry/care attitude” completely out of the picture has also become a legal and moral imperative, although still “a tough nut to crack” in practical/political terms. But, we have to give it our best shot!

Actions (including, most important, personnel changes) solve problems and save lives! Unfulfilled promises, campaign slogans, and fundraising pitches not so much! 

Grim Reaper
Many who helped put Biden and Garland in office believed that “Americans Gulags” and “EOIR StarChambers” would be a thing of the past by now. But, outrageously, they are still alive, well, and thriving in the Biden Administration, even being expanded and defended by Garland’s team of morally and ethically challenged DOJ lawyers. “The Inspiring Words & Deeds of AG Merrick Garland on Immigrant Justice” would fill a book about as large as “The Combined Wisdom & Humanity of Donald Trump & Stephen Miller.”  Oh well, at least the Grim Reaper must be happy with the way things are going!
Image: Hernan Fednan, Creative Commons License

 

😎Due Process Forever! Star Chambers and the New American Gulag, Never!

PWS

08-18-21

🏴‍☠️SUPREMES’ GOP MAJ. SLAMS GULAG DOOR SHUT ON REFUGEES IN “WITHHOLDING ONLY PROCEEDINGS” 👎🏽 — “NO BOND HEARINGS FOR YOU, ALIENS!” — Johnson v. Guzmán Chavez (6-3) — Oh, To Be A “Pipeline Builder” Endowed With Legal & Human Rights That Even Elite GOP Supremes Will Recognize!

Robert Barnes
Robert Barnes
Supreme Court Reporter
Washington Post

https://www.washingtonpost.com/politics/courts_law/supreme-court-deported-immigrants-penneast-pipeline/2021/06/29/3e83164e-d8dc-11eb-8fb8-aea56b785b00_story.html

This WashPost headline and Post Supreme Court reporter Robert Barnes’s summary say it all!

Supreme Court rules against immigrants claiming safety fears after deportation and for pipeline builders

By Robert Barnes

June 29 at 5:22 PM ET

. . . .

In the immigration case, the court was considering the rights of a relatively small subset of immigrants: those who were deported once before but reentered the United States illegally because they say they faced threats at home.

At issue was a complex federal law that authorizes the government to detain immigrants and which section of it applies to these types of cases.

One piece of the law says, “the alien may receive a bond hearing before an immigration judge” and thus the chance to be free while proceedings continue, Justice Samuel A. Alito Jr. wrote for the majority. In the other, the immigrant is considered “removed,” and indefinite detention is warranted.

Alito and his fellow conservative justices said it was the second that applied, and the detainees do not get a bond hearing. The court’s three liberals objected.

The case involved people who an immigration officer found had credible fears of danger or persecution in their home countries. For instance, Rodriguez Zometa said he was threatened with death by the 18th Street Gang when he was removed to his home country of El Salvador.

The question of whether the government could hold the immigrants without a hearing before an immigration judge had divided courts around the country. The case was argued before President Biden took office, and lawyers for the Trump administration told the court immigrants were not entitled to a hearing.

Alito said Congress had good reason to be more restrictive with those who came back into the country after being deported. “Aliens who reentered the country illegally after removal have demonstrated a willingness to violate the terms of a removal order, and they therefore may be less likely to comply with the reinstated order” that they leave, he said.

He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

The court’s liberals, Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, saw it differently and would have affirmed the victory the plaintiffs won at the U.S. Court of Appeals for the 4th Circuit in Richmond.

“Why would Congress want to deny a bond hearing to individuals who reasonably fear persecution or torture, and who, as a result, face proceedings that may last for many months or years?” Breyer wrote. “I can find no satisfactory answer to this question.”

The case is Johnson v. Guzman Chavez.

. . . .

Here’s the “full text” of the decision:

19-897_c07d

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

Nice summary, Robert! You can read the rest of Barnes’s report at the link. Indeed, Justice Breyer’s cogent question quoted in the article remains unanswered by the wooden legal gobbledygook in the majority decision, devoid of much understanding of how the dysfunctional Immigration Courts and the DHS “New American Gulag” actually operate and dismissive of what it actually means to be a refugee seeking to exercise legal rights in today’s world.

At issue: The right of non-criminal foreign nationals who have established a “reasonable fear” of persecution or torture if deported to apply for bond pending Immigration Court hearings on the merits of their cases. Getting a bond hearing before an Immigration Judge does not in any way guarantee release; just that the decision to detain or release on bond will be based on the individual facts and circumstances. Individuals released from detention have a much better chance of obtaining counsel and gathering the documentation necessary to win their cases. They are also much less likely to be “coerced” by DHS detention into surrendering viable claims and appeal rights.

Majority’s response: These “aliens” have neither rights nor humanity that any life-tenured GOP-appointed judge is bound to respect.

Alternative: There is a readily available alternative statutory interpretation, adopted by the 4th Circuit and the dissent, that would recognize the human and legal rights of vulnerable refugees seeking legal protection and give them hearings on continuing custody in substandard conditions (in some instances, conditions in the “DHS New American Gulag” fall well below those that would be imposed on convicted felons).

You can’t win ‘em all: The Round Table was one of many organizations filing an amicus brief on behalf of the refugees and in support of the position adopted by the 4th Circuit and the dissent. While we were unsuccessful on this one, at least we are on the “right side of history.” 

Creative suggestion: Detainees should incorporate, perhaps as a pipeline company, or better yet a gun rights’ group, so that they would have legal rights and be treated as “persons” (e.g., “humans”) by the Supremes’ GOP majority.

Next steps:

  • Advocates should prevail on the Biden Administration to change the regulations to give this limited subclass of applicants for protection a chance to seek bond before an Immigration Judge;
  • Advocates should keep up the pressure on the Biden Administration and Garland to appoint better judges at EOIR: progressive practical experts, who know how to grant legal protection efficiently and fairly and who will establish appropriate legal precedents to help these cases move through the EOIR system on the merits in a timely and fundamentally fair manner consistent with due process. The length of time it takes “Withholding Only” cases to move through the Immigration Courts has lots to do with: unfair, coercive detention practices by DHS; poor judging and bad precedents at EOIR; incompetent “judicial administration” and politicized “Aimless Docket Reshuffling” @ EOIR by DOJ politicos and their EOIR “retainers.”

Long term solution:

  • Support and vote for progressive legislators who will revise the immigration laws to do away with the unnecessary and wasteful  “New American Gulag;”
  • Vote progressive candidates for President and the Senate: political officials committed to putting better Federal Judges on the bench at all levels — “practical scholars” with real experience representing the most vulnerable in society and who will tirelessly enforce due process, equal protection, human rights, and fundamental fairness for all persons regardless of race, religion, or status; judges who understand and will seriously reflect on the “real life” human consequences of their decisions.  Better judges for a better America!

🇺🇸Due Process Forever!

PWS

06-30-21

🤮👎🏽ULTIMATE HIPOCRACY: EVEN AS AMERICA FINALLY CELEBRATES JUNETEENTH HOLIDAY, DRED SCOTT & INSTITUTIONALIZED RACIST DEHUMANIZATION REMAIN REALITIES FOR BLACKS & OTHER MIGRANTS OF COLOR AT EOIR & DHS — Imprisonment Without Trial, Bogus Bonds, Mistreatment In The New American Gulag, Jim Crow “Courts,” No Rule Of Law,  Still Realities For Those Of Color Exercising Legal Rights In Broken System!

 

“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”

Roger B. Taney, Chief Justice, Supreme Court, March 1857, Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)

“Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the due process clause.”

Justice Samuel Alito, Department of Homeland Security v. Thuraissigiam, 591 U.S. ___ (2020)

Dred Scott
Dred Scott (circa 1857)
Public Realm — Black asylum seekers and other migrants aren’t celebrating the continuing disgraceful “Dred Scottification of the other” in Mayorkas’s “New American Gulag” and Garland’s “Miller Lite” Immigration “Courts” that aren’t “courts” at all!

 

 

Rowaida Abdelaziz
Rowaida Abdelaziz
Immigration Reporter
PHOTO: Twitter

https://www.huffpost.com/entry/institutional-racism-immigration-system_n_60cbc554e4b0b50d622b66d7

By Rowaida Abdelaziz in HuffPost:

Yacouba, a political activist in Ivory Coast, knew if he didn’t immediately flee his home country, he wouldn’t survive.

After being threatened, attacked and tortured by people sympathetic to those in power, Yacouba fled his country in 2018. He went to Brazil for a few years, then made a perilous trek through Peru, Ecuador, Colombia, Panama, Costa Rica, Honduras and Mexico before finally arriving in the United States.

The journey was one of the two most challenging periods of his life. The second was being detained as a Black immigrant in the U.S.

As the nation celebrates Juneteenth — a day commemorating the emancipation of African Americans who had been enslaved in the United States — as a federal holiday for the first time, Black Americans and immigrants are fighting to dismantle institutional racism, including within the immigration system. Black immigrants are disproportionately detained, receive higher bond costs, and say they face racist treatment within detention centers.

Recognizing and celebrating the emancipation of slaves is vital, activists say ― but continuing to take down systemic racism needs to come with it.

“From an immigration perspective, Black immigrants face disproportionate levels of detention and exclusion,” Diana Konate, policy director at the advocacy group African Communities Together, said Thursday on a press call. “These can be life-threatening, as Black immigrants often get deported back to unsafe and dangerous conditions. While we celebrate the victories, we keep in mind that a lot of work remains.”

. . . .

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

Read the rest of Rowaida’s article at the link.

Every day that Garland, Monaco, Gupta, and Clarke drag their collective feet on ending “Dred Scottification,” racial bias, and xenophobia at EOIR diminishes their credibility on all racial and social justice issues. To date, Garland has appointed zero (O) progressive judges at EOIR, has only scratched the surface of the White Nationalist bias in decision-making in the Immigration Courts, and has failed to re-establish due process and the rule of law for Blacks and other migrants of color at the border.

Justice Alito and his colleagues in the majority disgracefully basically “dressed up” the core of Dred Scott dehumanization and bias in “21st century faux constitutional gobbledygook and intentional, disingenuous fictionalization!” Make no mistake: asylum seekers applying at our borders with their lives and humanity at stake are “persons” subject to our jurisdiction and are entitled to full Constitutional due process and statutory rights that are being denied to them every day, currently by the Biden Administration.

While Alito & Co. are wrong, DEAD WRONG in all too many cases, nothing in their dishonest and misguided “jurisprudence” prevents Garland from providing due process to individuals, regardless of status, in Immigration Court and to ending the racism and dehumanization underneath both the mess at EOIR and the cowardly abdication of duty by the Supremes’ majority in Thuraissigiam! In human rights, you either solve the problem or become part of it. And, experts, journalists, and historians are making a permanent record of the actions of the Supremes and the Biden Administration when democracy and racial justice are under stress!

You don’t have to look very far to “connect the dots” between Alito’s dismissive attitude toward the human rights of Asians and other asylum seekers of color and the increase in hate crimes directed against Asian Americans and unfair policing of African Americans. Once courts and government officials endorse “dehumanization of the other based largely on ethnicity” the “protections” and “distinctions” of citizenship tend to also vanish. If the lives of migrants of color can be declared worthless, what difference does citizenship mean for those of the same ethnic heritage that Alito deems below humanity? Obviously, the  Trump kakistocracy’s attack on migrants of color was just a “place holder” for their attack on the rights of all persons of color in America! 

How can Garland’s DOJ demand racial justice in state law enforcement while operating America’s most notorious “Jim Crow Court System?”

James “Jim” Crow
James “Jim” Crow
Symbol of American Racism — He still “rules the roost” at Garland’s EOIR!

It’s time for all civil rights and civil liberties organizations to join forces in demanding an end to bias and “Dred Scottification of the other” in Garland’s disgracefully dysfunctional Immigration “Courts.” Not rocket science!🚀 Just human decency, common sense, available (yet ignored) progressive expertise, and Con Law 101!

🇺🇸Due Process Forever!

PWS

06-21-21

🤯THIS IS THE “CHANGE” PROGRESSIVES VOTED FOR? — 🏴‍☠️ GARLAND DEFENDS UNCONSTITUTIONAL IMMIGRATION DETENTION AS LOSSES CONTINUE TO MOUNT — U.S. Judge In N.D. Cal. Unimpressed With Biden Administration’s Continued Intransigence!

Judah Lakin
Judah Larkin
Partner, Lakin & Wille
Oakland, CA
PHOTO: Larkin & Wille

Subject: [fedcourtlitigation] Habeas Win on Post-Preap Constitutional Challenge to 236(c)

 

Dear All:

 

We wanted to share an exciting decision we received on Friday from Judge Freeman in the Northern District of California on Friday granting our client a bond hearing.

 

We, together with our co-counsel Jenny Zhao and Monica Ramsy from Asian Americans Advancing Justice—Asian Law Caucus, and Scott Mossman, brought a habeas challenging mandatory detention under 1226(c) for an individual who was arrested by ICE in the community, 6 years after he finished his criminal sentence. Our client is an LPR with an aggravated felony conviction (drug trafficking). We asked for the local ICE office to follow the Johnson memo and release him, but they refused. We elevated it to headquarters and they likewise refused.

 

As a result, we brought an as-applied constitutional challenge to his detention without a bond hearing—a claim which was expressly left open by the Supreme Court in Preap. He had been detained for about 6 weeks at the time we filed the habeas, so it is a non-prolonged detention case.

 

Judge Freeman applied the Mathews framework and granted our TRO motion, concluding that the Constitution requires a bond hearing in this case. The bond hearing is scheduled for this week, pursuant to the TRO order, so we are optimistic he will be free soon. We’re also hopeful that this case can be used by others as we continue to work to dismantle mandatory detention.

 

The TRO decision is attached and is available at: Perera v. Jennings, No. 21-CV-04136-BLF, 2021 WL 2400981 (N.D. Cal. June 11, 2021).

Judah Lakin (he/him/his/Él)

Attorney at Law | Lakin & Wille LLP

Here’s a copy of Judge Freeman’s decision, basically a “primer” on Matthews v. Eldridge due process and its blatant violation under immigration bureaucracies of Administrations of both parties.

 

Judge Freeman’s Order

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

Seems like “Con Law 101” to me! So, how come it’s “above Garland’s pay grade?” 

Many congrats to Judah and all others involved to this effort!

🇺🇸⚖️🗽Due Process Forever!

PWS

06-16-21