"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Navigating Trauma: Tips for Attorneys and Their Clients: Free webinar Mar. 30 1 pm ET
Interested in learning how to deal with trauma in your clients and vicarious trauma you might suffer in sensitive cases like asylum, domestic violence, and violent crimes? Sign up for a free webinar entitled “Navigating Trauma: Tips for Attorneys and Their Clients” this Wednesday March 30, from 1-2 pm Eastern time.
Dr. JoAnn Difede, Director of the Program for Anxiety and Traumatic Stress Studies and a Professor of Psychology in Psychiatry at Weill Cornell Medicine, and Dr. Michelle Pelcovitz, Assistant Professor of Psychology in Psychiatry at Weill Cornell Medicine, will teach you how to recognize and deal with trauma. They will also provide self-care tips. Stephen Yale-Loehr, Professor of Immigration Law Practice at Cornell Law School and co-chair of the New York State Bar Association (NYSBA) Committee on Immigration Representation, will moderate.
The webinar is sponsored by NYSBA, Cornell Law School, Proskauer, Immigrant Justice Corps, the Association of Pro Bono Counsel, and other organizations. NYSBA will provide 1.0 MCLE credit of professional practice for attendees.
Anyone can register for the free webinar; you don’t have to be a NYSBA member. NYSBA members can register at https://nysba.org/events/navigating-trauma-tips-for-attorneys-and-their-clients/. If you aren’t a NYSBA member, set up a free account at https://nysba.org. Then input your name and email address so NYSBA can send you the Zoom link. The price is set up for free, so it will automatically be $0.00 when you add the program to your cart and check out. You can also call the NYSBA membership center at 800-582-2452 to register via phone. The program will be recorded, and attendees will receive handouts.
Stephen Yale-Loehr
Professor of Immigration Law Practice, Cornell Law School
Faculty Director, Immigration Law and Policy Program
Faculty Fellow, Migrations Initiative
Co-director, Asylum Appeals Clinic
Co-Author, Immigration Law & Procedure Treatise
Of Counsel, Miller Mayer
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Feeling stressed? Burned out? “Aimless Docket Reshuffling,” poor quality IJ decisions, and a “Trump holdover BIA” stacked with “appellate judges” who almost never see an asylum case they aren’t eager to deny got you down? Tired of having the exact same facts and arguments win in one case and lose in the next! Angry about Garland’s latest due process killing gimmick — more “expedited asylum procedures?”
Welcome to “business as usual” in the “Not so Wonderful” World of Merrick Garland’s EOIR!☠️
To practice before the dysfunctional Immigration Courts and USCIS in the “Biden Era,” members of the NDPA are going to need “coping skills” in addition to legal expertise to “fight the good fight” against systemic injustice, indifference to common sense and best practices, and endemic incompetence!
Check this out!It’s free!
Remember: It’s only human lives and the future of humanity that are at stake here! Why should Garland and his ivory tower lieutenants take it seriously, just because YOU do?
🇺🇸Due Process Forever!
PWS
03-25-22
*⚠️IMPORTANT DISCLAIMER: “Courtside” is solely responsible for the content of this promotion. It has not been approved for public consumption by the webinar sponsors, the FDA, or anyone else of any importance whatsoever!
Waves of migration through Mexico and Central America, and people who go missing, will increase in 2022 due to high levels of violence in the region, the International Committee of the Red Cross (ICRC) said.
Battle-scarred ghost town bears mute witness to Mexico’s drug wars
“In many countries, violence is wreaking more and more havoc, and that’s why there are more and more migrants,” ICRC representative Jordi Raich told Reuters in an interview Wednesday. “And it’s not a situation that is going to improve or slow down, not even in the years to come.“
Immigration authorities in Mexico detained 307,679 migrants in 2021, a 68% increase compared with 182,940 detentions in 2019, according to government data.
Shelters in Mexico were completely overwhelmed last year, filled with frustrated migrants unable to continue their journey to the United States, Raich said.
Many migrants get “stuck” along Mexico’s southern or northern borders, Raich said, where they face “enormous economic constraints” and are able to find only basic services.
The administration of Joe Biden has faced record numbers of migrants arriving at the southern border and has implored Mexico and Central American countries to do more to stem the wave.
Disappearances in the region have not slowed either, the Red Cross said in a report released Thursday. Mexico recently surpassed 100,000 people reported missing in the country.
In El Salvador, 488 missing person cases remain unsolved, and in Guatemala, the number of missing women rose to six a day, the Red Cross report said.
Raich said it will be difficult to respond to the root causes of migration immediately. A joint effort among countries like El Salvador, Guatemala and Honduras is necessary, he added.
“Migration is not going to stop,” Raich said. “If you try to prevent it or strictly regulate it, people start to pile up at the borders, which is happening in Mexico and other countries.”
Meanwhile, the Biden administration on Thursday rolled out a sweeping new regulation that aims to speed up asylum processing and deportations at the US-Mexico border, amid a record number of migrants seeking to enter the US.
The announcement of the new rule came as US officials are debating whether to end a separate Covid-era policy that has blocked most asylum claims at the border. The asylum overhaul could provide a faster way to process border crossers if the Covid order is ended.
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Read the full article at the link.
Cruelty, walls, detention, family separation, border militarization, expedited hearings — they aren’t going to stop human migration.We will be able to increase border deaths, expand the scope of “black market migration,” increase our “underground population,” and enrich human smugglers. Good policy?
Meanwhile, it’s obvious that the “disingenuous internal debate” on Title 42 has nothing whatsoever to do with public health and everything to do with whether continued illegal and immoral suspension of asylum protections at the border will prove politically advantageous to the Biden Administration. It won’t! It might, however, cost Dems support among progressives.
There is, of course, no known medical evidence that “single males” present a greater COVID threat than families! Indeed, there is no known medical evidence to suggest that any potential asylum applicant is a threat to the health and safety of the US.
The whole thing is a deadly farce! Why aren’t Hill Dems calling for oversight of Garland’s sitting by and watching while the law and ethics are pulverized around him? Or worse yet, what about his Department’s defense of abrogation of our laws? Believe it or not, we actually have asylum and protection laws on the books, duly enacted by Congress, although you’d never know it from Garland’s feckless performance!
Meanwhile, WashPost and other so-called “mainstream media” continue to hype stories about increased border pressure. So, continuing to violate asylum law is a viable alternative “strategy?” Give me a break! How is violating the law going to stop folks from fleeing deadly conditions in their home countries? It won’t, as the ICRC points out above!
What it will do, as also pointed out above, is kill more asylum seekers, subject them to rape, torture and other harm, enrich smugglers, and increase the extralegal population in the U.S.!
Blaine Bookey Legal Director Center for Gender & Refugee Studies @ Hastings Law Photo: CGRS website
It also will increase those waiting in vain at the Southern Border for the reopening of a legal asylum system that has abandoned them! In the words of one expert:
“The conditions are squalid,” said Blaine Bookey, the legal director of the Center for Gender and Refugee Studies at University of California, Hastings College of the Law, who led a team interviewing dozens of families waiting in Tijuana for the federal government to lift Title 42. “There is real lack of access to sanitation, medical care, adequate food, all of the real basic fundamental necessities.”
. . . .
“There have been some exceptions made for Ukrainians, which we’re happy to see, but the policy should be ended for everyone,” Bookey said. “There was never a public health justification, and there certainly isn’t now.” (WashPost, supra).
Meanwhile, back at the ranch, Sen. John Cornyn (R-TX) babbles nativist nonsense:
Sen. John Cornyn (R-Tex.) said at a committee hearing last week that the influx has “completely derailed” efforts to discuss improving legal immigration to the United States, which he said states such as Texas need to staff hospitals and fill jobs. Border states such as Texas and Arizona are bracing for higher numbers of unauthorized immigrants in coming weeks, he said.
“Rather than deter would-be migrants with weak asylum claims from taking the dangerous journey to the southwest border, the administration has rolled out the welcome mat and created new incentives to illegally immigrate to the United States,” he said at the March 15 hearing before the Senate Judiciary subcommittee on immigration, citizenship and border safety.
To my knowledge, neither Cornyn nor any of his other GOP nativist buddies have ever adjudicated an asylum application. Nor have they represented asylum seekers before the Asylum Office or in our broken Immigration Courts. So, how would that have any idea whether certain asylum claims are “weak” or not? They wouldn‘t!
Moreover, we haven’t had a functioning asylum system at our Southern Border for years. So, how would anyone know how many of the claims are “weak?” They wouldn’t?
Remarkably, apparently unknown to Cornyn and his scofflaw buddies, we actually have laws to deal with his concerns. When the legal system is “open for business” — which it isn’t now — those claiming asylum at the border are subject to “summary exclusion” by DHS officers. Their claims are then expeditiously reviewed by Asylum Officers for a “credible fear” of asylum. Those who don’t establish credible fear, subject only to cursory review by an Immigration Judge, can be immediately removed by DHS.
Historically, when the system was at least nominally functional, those “passing” credible fear have been turned over to the now dysfunctional Immigration Courts. Under Trump, these “parodies of courts” were “weaponized” into “asylum killing grounds.”
Sessions and Barr packed their non-independent “captive courts” with “judges” perceived to be “enforcement oriented” and “anti-asylum” — willing to skew the law and facts as necessary to deny and deport. This mess is “led” by an appellate body, the BIA, which contains some of the most notorious members of the “Asylum Deniers’ Club” — folks who got their appellate jobs under Barr specifically because as Immigraton Judges they denied almost every asylum case that came before them! In other words, even when there was some semblance of a legal asylum system, it was redesigned under Trump to be systemically unfair to asylum seekers, particularly women and applicants of color. For sure, racism and misogyny played into this unseemly scenario.
Remarkably, Garland has chosen to maintain this dysfunctional, biased, and broken system largely in the form it existed and with almost all of the same unqualified or questionably qualified “judges” he inherited from Session and Barr!
Our broken asylum system can’t and won’t be fixed without dealing head-on with the overarching problem — systemic anti-asylum bias, poor quality decision-making, grotesque inconsistencies, and beyond incompetent administration of our Immigraton Courts by the DOJ!
Remarkably, Garland’s proposed solution is yet another “designed to fail” gimmick — expedite cases in his broken and biased, anti-asylum system! So the solution to a defective court system, infected with anti-asylum bias and poorly qualified judges turning out defective decisions is to make it “go faster!” The new regulations also fail to deal with the huge due process issue of lack of competent representation in the asylum system, particularly the Immigration Courts. Come on man!
We don’t need over 500 pages of new regulations and sophomoric, alternate universe “time limits” for an agency that can’t even find its files! What we need is for Garland to do the job he was hired to do more than a year ago! That’s “clean house” at the Immigration Courts, bring in competent, fair judges who have experience in Immigration Court and are legitimate, well-recognized asylum experts — starting with a new BIA (save for their one qualified Appellate Immigration Judge Andrea Saenz, a Garland appointee).
Get expert judges, intellectual leaders, and competent judicial administrators into the broken Immigration Court system to provide coherent, practical asylum legal guidance and work with advocates, the Asylum Office, and DHS to get a functional and fair legal asylum system in place and operating smoothly and efficiently at the border. It should already be in place by now. That it isn’t, is entirely “on Garland!”
Then, with experts who actually are committed to fairly and impartially applying asylum law in place, we’ll see, for the first time, how many of the asylum claims are valid and how many aren’t! And, while we’re at it, we might find that many of the “legal” immigrants Texas and the rest of America needs are right there at our borders — just waiting for our legal system to do justice and admit them. Asylum seekers are seeking legal immigration! It the USG that’s acting “illegally” here!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The content 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.
TRAC: The largest segment where age was recorded, some 32,691, were children from zero to four years of age. This represents 12 percent of cases received this fiscal year, or a little less than one out of every eight.
Reuters: DHS in a notice published in the Federal Register said the “expedited removal” process is best focused on people who recently entered the U.S. and remain in close proximity to the border, rather than those targeted by Trump’s sweeping 2019 expansion, who have been in the country longer and developed ties to their communities.
Watchdog recommends relocation of detainees from ICE facility, citing unsanitary conditions and staff shortages CBS: The Department of Homeland Security Office of Inspector General (OIG) issued a damning report on Friday documenting unsanitary conditions, staff shortages and security lapses at ICE’s Torrance County Detention Center in New Mexico. The OIG found the conditions so unsafe that it took the highly unusual step of urging ICE to immediately remove all persons detained at the facility. ICE is refusing to comply with this recommendation and has contested the integrity of the OIG’s investigation.
AP: Faced with the likelihood of eventually reopening its southern border to asylum seekers, the United States government is urging allies in Latin America to shore up immigration controls and expand their own asylum programs.
AP: In 2019, Jackson temporarily blocked the Trump administration’s plan to expand fast-track deportations of people in the country illegally, no matter where they are arrested.
Politico: When it comes to immigration, Durbin said, “I don’t want to hear the word reconciliation,” referring to the budgetary rules that can allow for the Senate to sidestep a filibuster. “That holds up false hope. … The question is: is there anything we can do on the subject of immigration that can win 60 votes in the Senate? We’re going to test that.”
WaPo: The towers use thermal imaging, cameras and radar to feed an artificial intelligence system that can determine whether a moving object is an animal, vehicle or person, and beam its location coordinates to U.S. Border Patrol agents.
BIA: Larceny in the third degree under section 53a-124(a) of the Connecticut General Statutes is not a theft offense aggravated felony under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2018), because it incorporates by reference a definition of “larceny” under section 53a-119 of the Connecticut General Statutes that is overbroad and indivisible with respect to the generic definition of a theft offense. Almeida v. Holder, 588 F.3d 778 (2d Cir. 2009), and Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004), not followed.
SCOTUSblog: Biden v. Texas (April 26): Whether the Department of Homeland Security must continue to enforce the Migrant Protection Protocols, a policy begun by President Donald Trump that requires asylum seekers at the southern border to stay in Mexico while awaiting a hearing in U.S. immigration court.
Law360: Foreigners locked out of the U.S. due to former President Donald Trump’s now-defunct travel bans will get a new chance to fight their case, after a California federal judge reopened two lawsuits over the policy on Tuesday.
Law360: A recent HIV diagnosis alone does not put a Mexican national at greater risk of state-sanctioned violence if he’s returned home, the Fifth Circuit ruled Monday in a unanimous published opinion denying the man’s asylum bid.
LexisNexis: Because the BIA erred in concluding its affirmance of the IJ’s adverse credibility determination effectively disposed of Thraiyappah’s pattern-or-practice claim for CAT protection based on his Tamil ethnicity, we Grant the petition, Vacate in part and Remand to the BIA.
Law360: A man facing deportation from the U.S. for burglarizing an empty Florida property got another chance to challenge his removal after the Eleventh Circuit questioned a finding by immigration judges that his crime constituted “moral turpitude.”
Law360: The Massachusetts chapter of the American Civil Liberties Union sued U.S. Immigration and Customs Enforcement Wednesday seeking records it says will show whether the Biden administration followed through on a promise to reform immigration enforcement policies.
AILA: USCIS stated that following the February 7, 2022, court decision in Asylumworks v. Mayorkas, USCIS must process all initial EAD applications from asylum applicants within 30 days. Given certain conditions regarding Form I-765, some applicants may be considered Rosario class members.
AILA: Advance copy of DHS notice rescinding the July 23, 2019, notice Designating Aliens for Expedited Removal, which expanded the application of expedited removal procedures. The notice will be published in the Federal Register on 3/21/22 and will be effective on that date.
AILA: Secretary of Homeland Security Mayorkas announced the designation of Afghanistan for Temporary Protected Status (TPS) for 18 months. The designation will take effect upon publication of a forthcoming Federal Register notice, which will also include instructions for applying for TPS and an EAD.
AILA: The Attorney General issued a memo to heads of executive departments and agencies with guidelines for the fair and effective administration of the Freedom of Information Act (FOIA). The memo includes guidelines for removing barriers to access and reducing FOIA request backlogs, among other things.
AILA: DOS states that U.S. citizens physically present overseas with their Afghan, Ethiopian, and Ukrainian immediate family members can request to locally file a Form I-130 petition at the nearest U.S. embassy or consulate that processes immigrant visas. DOS specifies who citizens can file for.
AILA: DHS has automatically extended the validity of certain EADs with a Category Code of A12 or C19 issued under TPS for Somalia through September 12, 2022. Information on updating expiration dates and reverification is available.
AILA: ICE issued directive 10036.2, which states that ICE personnel are generally prohibited from using or disclosing information protected by Section 1367 to anyone other than DHS or DOJ employees. This includes information on applicants for T & U visas, continued presence, or VAWA based benefits.
AILA: USCIS temporary final rule extending the expiration date of the temporary final rule on interpreters at asylum interviews published at 85 FR 59655, which was set to expire on 3/16/22, through 3/16/23. (87 FR 14757, 3/16/22)
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the group page and request to be added.
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
Many congrats to Attorney Shernette G. Noyes of Stratford, CT for doing the near impossible: Notching a well-deserved win for an immigrant in a “crimmigration” case before one of the toughest BIA panels this side of Dodge City!
“The USCIS Contact Center purports to provide tools for checking case statuses online, correcting notices that contain mistakes or were never delivered, and connecting applicants to a representative for live support. However, the Contact Center is more often a source of frustration than assistance. We outline some of our firm’s experiences with the Contact Center, and provide suggestions for improving its services.
One common set of issues occurs when an attorney attempts to place a call or e-request on behalf of a client. USCIS refuses to speak with even the managing attorney of the firm if a different attorney has submitted a Form G-28. Difficulties arise when the attorney of record has departed the firm or is otherwise unavailable, and other attorneys are then unable to utilize the Contact Center to assist a client. Even when the alternate attorney on the case submits a Form G-28, the Contact Center often is unable to track the submission of a new Form G-28 and refuses to speak with the alternate attorney. In some instances, USCIS will speak with an alternate attorney if the client is also on the call. This arrangement, however, defeats the purpose of a Form G-28 by forcing the client verbally give permission for representation over the phone, and is highly inconvenient when an attorney cannot be physically in the room with a client or arrange a conference call.
Additionally, USCIS only allows certain interested parties to a case to utilize the Contact Center to make queries. Only the petitioner or an attorney/accredited representative can submit e-requests in connection with a Form I-129 or I-140 petition, for example. USCIS will not respond to requests placed by the beneficiary of such petitions, although the beneficiary may be more sensitive to delayed receipt notices or misspelling on approval notices, and in a better position to raise these issues to USCIS than the employer.
Further, the USCIS Contact Center is not always responsive to requests, even when they are placed by a recognized party. Our office has observed instances of receipt notices that contain errors failing to get corrected, even after multiples calls and e-requests from the attorney of record. When USCIS does not timely rectify errors of this kind and issues an approval notice still containing a misspelling, applicants are forced to file a Form I-824 and pay the considerable $465 filing fee to seek a correction. The processing time for an I-824 ranges from a few months to upwards of 24 months.
Delays in processing applications have become endemic. Applicants do not get an employment authorization document issued in time and can lose their job. Also, obtaining advance parole to travel takes several months. One can use the USCIS Contact Center to make an expedite request under its articulated criteria. Unfortunately, most expedited requests get denied even though they fit the criteria
The problems with the USCIS Contact Center have widely been observed. On February 28, 2022, 47 members of Congress wrote a letter to DHS urging it to make improvements to the Contact Center. See AILA, Forty-Seven Members of Congress Urge DHS to Make Improvements to USCIS Contact Center, AILA Doc. No. 22030300 (Feb. 28, 2022), https://www.aila.org/infonet/urging-dhs-to-make-improvements-to-uscis-contact. Among the improvements suggested by the members of Congress were providing accurate and accommodating callback windows for customers submitting requests through InfoMod, allowing law firm staff other than the attorney of record to make requests through the Contact Center, making the criteria used to grant appointments through InfoMod public, and offering walk-in availability for emergency requests at local USCIS offices.
Notwithstanding its shortcomings, the USCIS Contact Center has facilitated positive outcomes for some individuals. The USCIS 800 number has been helpful in getting corrected notices sent to applicants, or in this firm’s experience, ensuring that beneficiaries to an approved I-140 receive copies of Notices of Intent to Revoke under Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017).”
Asylum attorneys have been facing a longstanding mental health crisis. The pandemic, sweeping regulatory changes, and uncertainty created deeper dimensions of stress in an already chaotic immigration system. To address this crisis, in 2020, Professors Lindsay Harris and Hillary Mellinger surveyed over 700 immigration attorneys utilizing the National Asylum Attorney Burnout and Secondary Traumatic Stress Survey. Their groundbreaking study found that asylum attorneys displayed symptoms of burnout and Secondary Traumatic Stress (STS) at rates higher than immigration judges, social workers, hospital doctors, nurses, and prison wardens. Asylum attorneys reported burnout symptoms including not only depression, but boredom, cynicism, discouragement, and a loss of compassion. Notably, STS symptoms mirror Post-Traumatic Stress Disorder which include intrusive thoughts, traumatic nightmares, insomnia, chronic irritability, fatigue, trouble concentrating, and hypervigilance.
The ABA has a longstanding commitment to address and identify resources to ameliorate attorney well-being and mental health. While strides have been made, this panel seeks to build upon the study to facilitate a normative shift away from old mental health paradigms to a culture of openly discussing burnout and secondary trauma within law school settings, non-profits, government agencies, and law firms.
This webinar, moderated by Deena Sharuk, Senior Legal Advisor to the ABA Commission on Immigration (COI), along with experts Law Professor Lindsay Harris, Criminal Justice and Criminology Professor Hillary Mellinger, ABA COI Senior Staff Attorney Eloy Gardea, and Leora Hudak from Center for Victims of Torture will discuss the implications of the survey’s findings on lawyers, their clients, and the immigration system. The panelists will discuss concrete ways to shift the norms in the legal profession on an individual and institutional level for attorneys to build sustainable careers in this field.
Time: Apr 7, 2022 03:00 PM in Eastern Time (US and Canada)
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Of course, USCIS isn’t the only part of the dysfunctional immigration bureaucracy taking a toll on the heath of practitioners and their clients.
Over at EOIR, poor leadership, overly bureaucratized management, “Aimless Docket Reshuffling,” mindless enforcement “gimmicks,” a “Miller Lite” BIA, poor judicial selections by the Trump regime unaddressed by Garland, anti-immigrant/anti-asylum seeker “culture,” disdain for due process, disregard for best practices, endless largely self-generated backlogs, and lack of transparency continue to plague the system and torment advocates.
Unlike DOJ and EOIR, the ABA Panel conducting this webinar is made up of true subject matter experts and all-star practical scholars.
Deena Sharuk Senior Advisor ABA Commission on ImmigrationProfessor Lindsay Muir Harris UDC LawDr. Hillary Mellinger Assistant Professor Department of Criminal Justice and Criminology Washington State University PHOTO: WSUEloy Gardea Senior Staff Attorney ABA Commission on Immigration PHOTO: FacebookLeora Hudak Program Manager Center for Victims of Torture PHOTO: Linkedin
From Tasha Moro, Communications Director @ Justice Action Center:
Tasha Moro Communications Director,,Justice Action Center PHOTO: Justice Action Center
Hi friends!
In response to states like TX, FL, AZ and others engaged in unrelenting legal challenges to defend Trump-era policies that harm immigrants, JAC is launching our litigation tracker microsite—an interactive, searchable index of anti-immigrant legal challenges, decoded and technical legal summaries, court filings, news coverage, and advocacy tools. We hope it’s useful to advocates and litigators alike!
As a compliment to the tracker, we also send out a biweekly newsletter summarizing the latest case updates, which you can subscribe to here. Feel free to explore the microsite, and read our press release below, and RT our thread here!
All the best,
Tasha
JAC’s New Litigation Tracker Follows States’ Legal Efforts to Uphold Trump-Era Immigration Policies
LOS ANGELES—Justice Action Center (JAC) launched a litigation tracker microsite that follows states’ legal challenges to inclusive federal immigration policies. Since President Biden took office, states like Texas, Arizona, Florida, and others have poured immense resources into impeding progress and defending Trump-era policies that demonize, endanger, and discriminate against immigrants. Updated continuously, the JAC litigation tracker decodes these complex legal battles using accessible language, and includes court filings, news coverage, and resources.
One example of such a case detailed in the tracker is Biden v. Texas, the critical Remain in Mexico (also known as “MPP” or “RMX”) case that the Supreme Court announced last month it would hear on an expedited schedule. Over the last year, Texas has challenged President Biden’s attempts to end Trump’s cruel and inhumane RMX program, which has stranded tens of thousands of asylum seekers in dangerous conditions in Mexico while awaiting their immigration court hearings in the U.S.
Like other cases, JAC’s litigation tracker outlines the history of Biden v. Texas as it worked its way up the federal court system. Providing critical analysis, the tracker explains how the Supreme Court’s decision will not only determine the future of asylum in the United States, but also have far reaching implications on executive powers. Users will find continuously updated news coverage and resources that can be used to take action on this and other important immigration related litigation.
“It is crucial that the American public is informed of various states’ attempts to obstruct inclusive immigration policies that would benefit our communities, culture, and economy. JAC’s litigation tracker decodes these legal moves to empower people of conscience to engage in smart, creative advocacy to counter them—whether they have a law degree or not,” said JAC legal director Esther Sung.
As a complement to the tracker, JAC sends out a bi-weekly newsletter outlining the latest courtroom updates, which users can subscribe to here.
Justice Action Center (JAC) is a new nonprofit organization dedicated to fighting for greater justice for immigrant communities by combining litigation and storytelling. JAC is committed to bringing additional litigation resources to address unmet needs, empower clients, and change the corrosive narrative around immigrants in the U.S. Learn more at justiceactioncenter.org and follow us on Twitter, Instagram, and Facebook.
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The bad news: These morally debilitated heirs to the slave-owning class and Jim Crow politicians exist and, like those antecedents, hold influential positions of public trust that they use to pick on and dehumanize the vulnerable.
The good news: You’ll no longer have to look under rocks and other dark places where slimy creatures hang out to see what shenanigans they are up to now!
Just when you think the GOP couldn’t sink any lower, they dredge up these sleazy “public officials” who show that there is no lower limit.
Mr. Li was born on Sept. 7, 1955, in Wuhan and joined the Chinese Army at the age of 15, said his friend Mr. Zhu. He then worked as a policeman and studied at a university in Wuhan, where he focused on law. He majored in constitutional law at Beijing University, graduating in 1985. After working as a professor in Wuhan, he returned to Beijing for his doctorate, where he had a high place in the student government.
“Usually people at that level means they have a very bright future with the government and with the party,” said Jianzhong Gu, a longtime friend of Mr. Li’s. “But Jim Li was not working in that way. He had his own ideas.”
Mr. Li was a doctoral student in 1989 when the Tiananmen Square protests began with thousands demonstrating against the Chinese Communist Party, criticizing corruption and calling for democratic freedoms. He served as a legal adviser to the Beijing Workers Autonomous Federation, the key organization of workers that aligned itself with the students seeking freedom.
He was interrogated a number of times while detained at Qincheng Prison, but told friends and colleagues that he had never cooperated.
In the United States, after his studies at Columbia, he initially struggled, telling a newspaper at the time that he was unable to find work in a law firm because of his shaky English. He considered working in a restaurant.
But soon afterward, he was able to attend the law school at the University of Wisconsin, where he became a fan of the Green Bay Packers.
In New York, he helped clients gain admission to the United States and devoted himself to pro-democracy programs, his friends said. He was one of the lawyers who represented Zhou Yongjun, a student leader in the Tiananmen Square movement who was detained by the Chinese authorities in 2008 and charged with fraud. He fought against the Chinese government’s practice of using Interpol red notices to apprehend political opponents. And he worked with many clients, including Ms. Zhang, pro bono, Mr. Zhu and Mr. Lebenger said.
“He helped a lot of Chinese people who had the experience of being persecuted by the Chinese government,” Mr. Gu said.
Mr. Lebenger said that Mr. Li had hoped to do less legal work so he could devote more time to his pro-democracy activities, to reading, writing and activism. “If I did anything worthwhile, it was freeing Jim up to do more of that work,” he said.
Kirsten Noyes contributed research.
Jonah E. Bromwich covers criminal justice in New York, with a focus on the Manhattan district attorney’s office, state criminal courts in Manhattan and New York City’s jails.
During his time on Metro, Mr. Bromwich has covered investigations into former president Donald J. Trump and his family business, the fall of New York Governor Andrew M. Cuomo and the crisis at the jail complex on Rikers Island, among other topics. @jonesieman
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What a senseless tragedy! A life well and courageously lived cut short! Rest In Peace, Jim. You will be missed, but your legacy of courage, compassion, and standing up for the human rights of others will live on and continue to inspire the NDPA!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
How much of Ukraine will look like this by war’s end? Photo from Previous Russia-Ukraine War by Wojciech Zmudzinski Creative Commons License
Weekly Briefing
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 content 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)
PRACTICE ALERTS
NEWS
LITIGATION & AGENCY UPDATES
RESOURCES
EVENTS
PRACTICE ALERTS
Virtual EOIR Registration: For new attorney registration, practitioners are no longer required to go to the court personally to show an ID. However, they still may appear personally. To coordinate identification verification please contact: Tina.Barrow@usdoj.gov or by phone at 717-443-9157.
Adjustment-Ready Cases: DHS is filing motions for dismissal for about 1,000 cases nationwide for Adjustment-Ready Cases (ARCs) to allow for pursuit of relief before USCIS. If you don’t want the case dismissed, timely file your opposition.
ICE Appointment Scheduler: Now available in Spanish, French, Portuguese, and Haitian Creole in addition to English.
Hill: Immigration restrictionists celebrated that the bill includes funding increases for ICE and Customs and Border Protection, but worried that the Biden administration will not use those funds to implement the Trump-style strict enforcement measures they favor…“The budget gives ICE money to fund over 5,000 more beds than proposed in funding bills introduced last year in both the House and Senate. These funding levels directly contradict commitments made by the Biden administration and members of Congress to reduce the immigration detention system,” Mary Meg McCarthy, executive director of the National Immigrant Justice Center, said in a release.
WaPo: Advocates for immigrants said they welcomed many of the Biden administration’s early changes, such as ending the travel ban and increasing the number of refugees allowed into the United States. But they said the most recent spending bill increases funding for immigration enforcement and complained that Biden has not kept his campaign promise to end privately run detention, which accounts for the majority of the ICE system.
NYT: The tension has also resonated inside the White House, where senior officials have been anxious that unwinding the Trump-era border restrictions would open the United States to an increase in illegal crossings at the southern border and fuel Republican attacks that Mr. Biden is too lenient on illegal immigration.
NYT: More than 4,100 Russians crossed the border without authorization in the 2021 fiscal year, nine times more than the previous year. This fiscal year, which began Oct. 1, the numbers are even higher — 6,420 during the first four months alone.
RollCall: Now, embassies have shuttered in Russia, Belarus and Ukraine. That could increase pressure on other consular posts in the region already feeling the weight of a visa backlog of nearly half a million cases.
AP: All Florida government agencies would be barred from doing business with transportation companies that bring immigrants to the state who are in the country illegally under a bill sent to Gov. Ron DeSantis on Wednesday.
Miami Herald: Nearly 200 Haitian migrants were returned to Haiti on Friday by the U.S. Coast Guard after their bid to reach U.S. shores ended with their overloaded sailboat running aground behind a wealthy North Key Largo resort in the Upper Florida Keys and some of their compatriots making a harried dash to freedom in the choppy waters. See also Black Immigrants to the U.S. Deserve Equal Treatment.
NYT: Although the bureau did not say how many people it missed entirely, they were mostly people of color, disproportionately young ones. The census missed counting 4.99 of every 100 Hispanics, 5.64 of every 100 Native Americans and 3.3 of every 100 African Americans.
Buzzfeed: Immigration and Customs Enforcement agents obtained millions of people’s financial records as part of a surveillance program that fed the information to a database accessed by local and federal law enforcement agencies, according to a letter sent Tuesday by Sen. Ron Wyden to the Department of Homeland Security inspector general requesting an investigation into whether the practice violated the US Constitution.
Forbes: “International student enrollment at U.S. universities declined 7.2% between the 2016-17 and 2019-20 academic years, before the start of the Covid-19 pandemic,” according a new analysis from the National Foundation for American Policy (NFAP). “At the same time, international student enrollment at Canadian colleges and universities increased 52% between the 2016-17 and 2019-20 academic years, illustrating the increasing attractiveness of Canadian schools due to more friendly immigration laws in Canada, particularly rules enabling international students in Canada to gain temporary work visas and permanent residence.”
Law360: A Salvadoran woman urged the U.S. Supreme Court to review an Eleventh Circuit decision greenlighting her deportation based on a decades-old removal order issued after she voluntarily left the country, saying the ruling conflicted with Fifth and Seventh Circuit precedents.
Law360: The Second Circuit on Thursday revived an asylum application from a man who says he fled political violence in Guinea, finding a string of errors in an immigration judge’s determination that he wasn’t credible.
LexisNexis: Dissent: I respectfully dissent from this court’s denial of rehearing en banc on the issue of whether to grant Chevron deference to the Board of Immigration’s (“Board”) recent interpretation of § 1101(a)(43)(S), providing that an aggravated felony under the INA is “an offense relating to the obstruction of justice, perjury or subornation of perjury, or bribery of a witness.” …Namely, this decision is the first and only to uphold the Board’s 2018 redefinition as reasonable—repudiating the Ninth Circuit’s 2020 decision. Accordingly, by no longer requiring a nexus element, this opinion expands the list of possible state crimes that could trigger immigration deportation consequences for many persons who may not have been otherwise subject to deportation. This is a sizeable impact for many people in our country.
LexisNexis: The Government indicates that the matter should be remanded, in part, to the BIA for consideration of her request for voluntary departure in light of Niz-Chavez. Thus, the petition for review is granted as to the stop-time issue, and this matter is remanded to the BIA for consideration under Niz-Chavez and other relevant precedents.
LexisNexis: The Board granted one extension but denied a second, suggesting that Oluwajana instead submit his brief with a motion seeking leave to file it late. When he did so, less than two weeks after the submission deadline, the Board denied the motion in a cursory-and factually erroneous-footnote. And having rejected the brief, the Board upheld the removal order without considering Oluwajana’s allegations of error by the immigration judge. Based on the undisputed circumstances of this case, we conclude that the Board abused its discretion by unreasonably rejecting Oluwajana’s brief.
Law360: The Ninth Circuit ordered the Board of Immigration Appeals on Wednesday to decide if an immigrant’s rape conviction bars deportation relief, with a dissenting judge saying the decision only delays the “unpalatable” conclusion that the man can seek a removal waiver.
BIA: When the Department of Homeland Security raises the mandatory bar for filing a frivolous asylum application under section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6) (2018), an Immigration Judge must make sufficient findings of fact and conclusions of law on whether the requirements for a frivolousness determination under Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), have been met.
LexisNexis: Additionally, the respondents assert that despite informing immigration officials of their intent to get a new attorney and “sort out [their] case,” ICE officials told them that they were not priorities for deportation and there was nothing more they could do with respect to their case (Respondents’ Mot., Tab G). Accordingly, under these circumstances, we will equitably toll the filing deadline for the respondents’ motion to reopen.”
Law360: An Illinois federal judge closed the book on Chicago’s lawsuit challenging certain Trump-era conditions for recipients of a federal public safety grant on Tuesday when he put the final touches on his judgment blocking conditions for receiving the grant to resolve the case’s outlying issues.
LexisNexis: Defendant executed an I-864 Affidavit of Support; therefore, he is contractually obligated to provide Plaintiff and J.K.M.F. any support necessary to maintain their household at an income that is at least 125 percent of the Federal Poverty Guidelines. Plaintiff has received no financial support from Defendant since fleeing to a shelter on October 21, 2021…Accordingly, Plaintiff has alleged a meritorious claim against Defendant for breaching his contractual duty.
Law360: U.S. Immigration and Customs Enforcement’s New York office will overhaul its policy on people suspected of civil immigration offenses while on bond, settling claims it detained suspects beyond what the law allows without a chance to post bail.
Law360: A D.C. district court ordered the federal government to disclose the names of border officers who screened migrants’ asylum claims under a pilot program, saying Friday that asylum-seekers needed to know if they were unwittingly placed in the since-suspended project.
Law360: A woman’s suit contending she was wrongly deprived of pandemic relief payments from the IRS because of her marriage to an immigrant is barred by a federal law prohibiting court challenges that restrain tax collection, a Maryland federal court ruled.
USCIS: U.S. Citizenship and Immigration Services announced that it is updating the USCIS Policy Manual to consider deferred action and related employment authorization for noncitizens who have an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, for Special Immigrant Juvenile (SIJ) classification but who cannot apply to adjust status to become a lawful permanent resident (LPR) because a visa number is not available.
AILA: DOS provided guidance for nationals in Ukraine seeking to enter the United States. The guidance clarifies information on nonimmigrant visas, immigrant visas, COVID-19 entry requirements, humanitarian parole, refugee status, and more.
AILA: EOIR updated appendix O of the policy manual with adjournment code 74. The reason is “Public Health,” and the definition is “Adjourned for public health reasons.”
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
The “Top News Section” is a good rundown of the Biden Administration’s “mixed bag” on immigration policy, particularly as it relates to our largely defunct asylum system and the refugee system (still reeling from Trump-era “deconstruction”) that does not appear to be prepared for the inevitable flow of Ukrainian refugees. It also highlights some of the lingering damage to our democracy (e.g., racially biased census undercount) done by the Trump regime and its toady enablers.
My Take: Ukrainian Refugees & The U.S. Response
So far, largely meaningless political rhetoric from the Administration concerning Ukrainian refugees has been predictably “welcoming.” But, the actions to date have amounted to nothing more than taking the obvious step of granting TPS to Ukrainians actually here.
That does little or nothing to address the nearly 3 million refugees who have fled Ukraine in recent weeks. If the Administration has a coherent plan for admitting our share of those refugees and resuming processing of Ukrainians and all other refugees seeking asylum at the border, they have not announced it.
For example, despite U.S. and worldwide condemnation of China’s treatment of Uyghurs — some characterizing it as “genocide” — the Administration has done nothing to speed the processing of the very limited number of Uyghur refugees languishing in our still largely dysfunctional asylum system. If, as I’ve pointed out on numerous occasions, the Administration is unable to address “low hanging fruit” like Uyghurs and Immigration Court reform, in a bold and timely matter, how are they going to respond to more difficult human rights issues?
As this op-ed in today’s NY Times points out, “generous” responses to large-scale refugee situations are often short-lived. As refugees flows inevitably continue and grow, the initial positive responses too often “morph” into xenophobia, nativism, racism, culture wars, and restrictionism.https://www.nytimes.com/interactive/2022/03/15/opinion/ukraine-refugee-crisis.html
Ukrainian refugees have two potential “advantages” over those from Syria, Afghanistan, Iraq, Haiti, Venezuela, Ethiopia, DRC, and the Northern Triangle that could help them realize “more durable” protection. They are 1) mostly White Europeans, and 2) mostly Christian.
Neither of these is a legally recognized international criterion for defining refugees. Fact is, however, that they were not universally descriptive of those aforementioned groups who have often received less enthusiastic receptions from Western democracies. As a practical matter, “cultural attitudes” influence the Western World’s acceptance of refugees, probably to a greater extent than the actual dangers which those refugees face in the lands from which they have fled.
But, that has also been true in Haiti, Syria, Central America, the DRC and many other trouble spots. It has made little positive difference to the U.S. The Trump regime, led by Uber racist-misogynist refugee deniers “Gonzo Apocalypto” Sessions and “Gauleiter” Stephen Miller actually went out of their way to target the most vulnerable women and children fleeing persecution for further abuse.
And, to date, the Biden Administration’s promise to do better and regularize the treatment of those fleeing gender-based violence has been a huge “nothingburger.” Whatever happened to those promised “gender-based regulations” and the “common-sense recommendations” to replace the restrictionist holdover, bad-precedent-setting BIA with real judges who are experts in gender-based asylum?
The flow of refugees from Ukraine, and a much smaller (at this point) flight of dissidents from Russia, has already “exceeded projections” and is not likely to diminish in the coming weeks and months. Moreover, with Russia focusing on civilian targets and leveling parts of many major metropolitan areas in Ukraine, the essential infrastructure and “livability” of many areas is rapidly being destroyed.
Thus, even if a “truce” were declared tomorrow (which it won’t be), many who have fled would not be able to return for the foreseeable future, perhaps never, even if they wanted to. The latter is a particular risk if Russia makes good on its threats to eradicate the current Ukrainian Government and replace it with a Russian puppet regime.
Refugee planning has consistently lagged foreign policy developments even though that has been shown to be problematic over and over. When will we ever learn?
We can’t necessarily prevent all foreign wars and internal upheavals, worthy as that goal might be. But, we can learn to deal better with inevitable refugee displacements.
Indeed, that was the purpose of the UN Convention and Protocol on the Status of Refugees, to which we and the other major democracies are parties. That more than 70 years after the initial Convention was signed we are still groping for solutions (indeed, we have shamefully abrogated a number of our key responsibilities under both domestic and international law)to recurring, somewhat predictable, and inevitable dislocations of humanity is something that should be of concern to all.
Despite all of the nativist propaganda, the truth is that nobody wants to be a refugee and that it could happen to any of us for reasons totally beyond our control! The similarity of the lives of many Ukrainians, up until a few weeks ago, to daily life in Western Democracies has perhaps “brought home” these realities in ways that the equally bad or even worse plight of other refugees in recent times has not.
I hope that we can learn from this terrible situation and treat not only Ukrainian refugees, but all refugees, with generosity, humanity, compassion, kindness, and as we would hope to be treated if our situations were reversed. Because, in reality, nobody is immune from the possibility of becoming a refugee!
Etan Thomas Etan Thomas played in the NBA from 2000 through 2011. He is a published poet, activist and motivational speakerGregg Popovich NBA Head Coach San Antonio Spurs, 1996 ——
In 2017, Popovich spoke at length at Spurs media day about systemic racism and politics, saying the country under Trump had become “an embarrassment to the world”: “Obviously, race is the elephant in the room and we all understand that. Unless it is talked about constantly, it’s not going to get better. Why do we have to talk about that?’ Well, because it’s uncomfortable. There has to be an uncomfortable element in the discourse for anything to change.
“The disgusting tenure and tone and all the comments … have been xenophobic, homophobic, racist, misogynistic. I live in a country where half the people ignored that to elect someone.”
“It seems like a lot of roll back in that regard, especially as we look at the race situation in our country. Everybody wants to forget about it but it should be there, front and center, constantly,” Popovich said.
“Race is still the unanswered dilemma that everyone continues to ignore. Dr. King did not ignore it, and it’s a big fear now that we have a group in power that is very willing to ignore it. It’s not just with their words, but their actions prove it, and that is scary.”
Now. Coach Popovich wasn’t the first and definitely won’t be the last in sports to verbally spank the former US president or call out the blatant and the prevailing racism and bigotry that is currently running rampant not only throughout the Republican Party but America as a whole, yet he’s certainly one of the most important and unique for a number of reasons:
1) Coach Popovich is a graduate of the Air Force Academy and works in a military town.
2) The aforementioned standard that he and the Spurs organization has set would appear to be in direct opposition to his public chastisement of the America.
3) Coach Popovich was making these statements in the ultra-red state of Texas, arguably the most conservative of the conservative states based on the state legislature and the congressional delegation, one that has voted Republican in 10 straight presidential elections and saw 52.6% of voters punch for Trump.
. . . .
Coach Popovich said that it’s up to white people to call out racism no matter what the consequences and didn’t even really receive any backlash for his comments, not even in an ultra-conservative place like Texas. And that’s what makes him unique and special. Yes, Popovich’s coaching milestone is historic and worthy of celebration, but his activism off the court will endure longer as the standard for all white people who truly want to be allies in this fight against racism and white supremacy.
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Read the full article at the link.
Many congrats to Coach Popovich on his coaching milestone! He did it all with one team, the San Antonio Spurs, making him the longest-tenured Head Coach not only in the NBA but in contemporary American sports!
“Oh, Great and Exalted Masters at DHS Enforcement, how high would you like your humble servants here at the BIA to jump?” https://www.flickr.com/photos/rasputin243/ Creative Commons License
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
When the Department of Homeland Security raises the mandatory bar for filing a frivolous asylum application under section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6) (2018), an Immigration Judge must make sufficient findings of fact and conclusions of law on whether the requirements for a frivolousness determination under Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), have been met.
FOR THE RESPONDENT: Elias Z. Shamieh, Esquire, San Francisco, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jennifer L. Castro, Assistant Chief Counsel
BEFORE: Board Panel: WILSON and GOODWIN, Appellate Immigration Judges. Dissenting Opinion: GREER, Appellate Immigration Judge.
WILSON, Appellate Immigration Judge: [Opinion]
For those interested in what the law actually says (clearly an “endangered minority” @ Garland’s BIA), here’s key language from Judge Greer’s dissent:
In my view, when an Immigration Judge elects to undertake the analysis set forth in our precedent under Matter of Y-L-, either independently or at the request of the DHS, and determines that the application is frivolous, then the plain statutory language requires the entry of a frivolousness finding as part of the Immigration Judge’s decision. But whether the Immigration Judge must conduct that analysis in the first place because the DHS requests it is a different question. This key distinction was recognized by the Second Circuit in stating that Immigration Judges “regularly exercise discretion when deciding whether to initiate a frivolousness inquiry.” Mei Juan Zheng, 672 F.3d at 186.
Requiring the adjudicator, either independently or at the request of the DHS, to engage in this analysis because the respondent made a material misrepresentation upends current practice by creating a rigid structure not mandated by statute. It equates adverse credibility with frivolousness, which I view as conflicting with the case law. It also removes discretion from the Immigration Judge and transfers it to the DHS. Accordingly, the majority’s interpretation constitutes an unwarranted expansion of the frivolousness provisions.
Although the majority casts this question in terms of whether an Immigration Judge may “ignore” a mandatory bar to asylum, the question is whether the Immigration Judge has the authority to make a judgment about pursuing a frivolousness inquiry. This Immigration Judge did not ignore a request from DHS to consider frivolousness. Rather, she entertained it and made an independent judgment not to proceed based on particular facts and circumstances in this case after deliberation. As discussed, the DHS did not question the judgment she made, which is a critical distinction; rather the DHS questions the ability of the Immigration Judge to make this judgment at all.2
I interpret the language and structure of the statute and development of relevant case law, combined with the sequencing of the frivolousness inquiry and its consequences, to demonstrate the discretionary nature of the frivolousness inquiry. And, absent any challenge to how the Immigration Judge exercised her discretion in this case, which I consider to have been waived, I would dismiss the appeal.
2 The relevant factors for the Immigration Judge to assess in making a threshold determination whether to invoke the frivolousness inquiry are a separate issue not implicated by the posture of this case.
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BIA to IJs: “When our overlords @ DHS tell you to jump, your duty is to say ‘how high, my masters!’”
Here, a correct (basically, uncontested on the merits, as Judge Greer points out) grant of a waiver was reversed just because DHS wanted “control” over the judges. “How dare a ‘mere employee’ of the AG exercise discretion in the face of the ICE ACC’s demand? Do these guys think they are ‘real’ judges? Let’s tell our buddy Merrick to get his toadies back in line like they were under Sessions and Barr!” How does the “holdover” BIA’s steady stream of incorrect decisions, institutionalized bias, and “worst practices” advance justice?
The “Biden-Era BIA” is building a legacy of bad law, poor judging, and unnecessarily broken lives. Not exactly what the Biden Administration promised during the election! And, it goes without saying that requiring a fact-heavy “full Y-L- analysis” at the unilateral demand of the DHS will increase the backlog as Garland “shoots for 2 million” in his dysfunctional and chronically misdirected “courts.”
The whole issue is devoted to addressing the critical due process, fundamental fairness, and ethical issues in Immigration Court with articles by NAIJ President Judge Mimi Tsankov, Judge Samuel B. Cole, Professor Michele Pistone of the VIISTA Villanova Project and others in addition to Joan.
Leading Senate Democrats demanded that the Biden administration immediately end a Trump-era policy that blocks asylum-seeking migrants from crossing land borders into the United States, after lawyers said U.S. Customs and Border Protection expelled a single mother of three who had traveled from Ukraine to Mexico seeking refuge.
Senate Majority Leader Charles E. Schumer (D-N.Y.) cited the “desperate” Ukrainian family at a news conference Thursday and said he was deeply disappointed that the Biden administration has dragged out the Trump-era policy, which a federal appeals court in D.C. last week called “questionable.” The Trump administration issued the order two years ago under Title 42, which is the public health code. Since then, officials have expelled more than 1.6 million migrants to countries such as Haiti and Mexico.
“The United States is supposed to welcome refugees with open arms, not put them in additional danger by denying them a chance to plead their case and leaving them at the mercy of criminals and smugglers,” Schumer said, joined by advocates for immigrants. “Now’s the time to stop the madness.”
Sen. Robert Menendez (D-N.J.), chair of the Senate Foreign Relations Committee, added that the policy “has created life-threatening conditions” for migrants. He called on the Centers for Disease Control and Prevention, which issued the order under President Donald Trump and has extended it under President Biden, to rescind it.
. . . .
Sofiia, 34, who asked to be identified only by her first name because she has family sheltering in their basements in Ukraine, said in a telephone interview that her family had enjoyed a good life there. She worked as a Hebrew teacher and lived in her father’s house. They left as bombs grew closer.
“I was seriously afraid for my life and the life of my kids,” she said in English, one of four languages that she speaks.
She said she and her children — ages 6, 12 and 14 — flung suitcases stuffed with clothes and medicines into her old Citroen and drove straight to Moldova, the closest border, and then into Romania, where they traveled to Germany and caught a flight to Mexico. She said that they tried to enter legally twice, once by car and again by foot, and that officials rejected them both times, citing the Title 42 order.
“I was surprised that they don’t even want to listen,” she said. “I was trying to tell them that I have tests and I am vaccinated but they told me, ‘No, no, no, no, no.’”
She said she does not speak Spanish and was crying on the bridge in Mexico when lawyer Blaine Bookey spotted her. Bookey, the legal director of the Center for Gender and Refugee Studies at the University of California’s Hastings law school, was there with her students to aid Haitian migrants facing similar troubles.
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Bookey said Customs and Border Protection told her that they would consider admitting the Ukrainian family. They were planning to try again Thursday, she said, adding that shelters in Mexico are filled with other would-be refugees who are not eligible to enter.
“There’s families like this that are showing up at the border from all sorts of countries from similar levels of violence. They deserve process to apply for asylum,” Bookey said. “This case really brings it home for people how just problematic this policy is.”
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Read Maria’s full article at the link.
Rhetoric over action!
“Do as I say, not as I do!”
More cowardly performances from AG Garland and SG Prelogar who continue to “defend the indefensible,” putting politics over their constitutional duty to speak up for due process, human rights, racial justice, adherence to international conventions, and the rule of law.
The “COVID emergency” appears to be “over” everywhere in the U.S., even in areas with significant infection rates, EXCEPT for asylum seekers at the Southern Border who never were a major threat anyway.
“Saying no” to desperate Ukrainian mothers and children seeking refuge in the U.S. That’s ”law enforcement?” That’s how your tax dollars are being spent? Do these count as “border apprehensions?”
The Dem leaders are right to speak out. But, they waited far too long to do so. This travesty has been going on since Day 1 of the Biden Administration.
The only “hero” 🌟 here is Blaine Bookey and others like her who have the guts and courage to stand up for equal justice for all when politicos, judges, and public officials “tank!”
Blaine Bookey Legal Director Center for Gender & Refugee Studies @ Hastings Law Photo: CGRS website
Meanwhile, although the opposition to Biden’s scofflaw policy hasn’t restored the rule of law for most asylum seekers, it might have generated at least a modest reaction. CBS News reports that the CDC has revoked the (bogus) Title 42 authority to bar the entry of unaccompanied children seeking asylum.News: https://apple.news/Anfp9S-UAQFqT5PWRc-8u2A
“After an immigration judge ordered him removed from the United States, Olawole Oluwajana appealed to the Board of Immigration Appeals and retained counsel to represent him. But the government was slow in providing a copy of Oluwajana’s immigration file, without which his attorney could not prepare a brief. The Board granted one extension but denied a second, suggesting that Oluwajana instead submit his brief with a motion seeking leave to file it late. When he did so, less than two weeks after the submission deadline, the Board denied the motion in a cursory—and factually erroneous—footnote. And having rejected the brief, the Board upheld the removal order without considering Oluwajana’s allegations of error by the immigration judge. Based on the undisputed circumstances of this case, we conclude that the Board abused its discretion by unreasonably rejecting Oluwajana’s brief. We therefore grant the petition for review, vacate the Board’s order, and remand for further proceedings.”
Here, the BIA took 7 months to set a briefing schedule, didn’t get the file to counsel in a timely manner, then “dinged” the R’s counsel for being 12 days late in filing a brief on a complex issue where input from legal counsel would likely be “outcome determinative!”
But, along the way, “Garland’s Clown Show” 🤡 fabricated a 33 day “late period.” And, to add insult to injury, they ignored their own regulations and instructions to counsel.
Even OIL couldn’t defend this one! But, Garland nevertheless retains the “Miller Lite” Clowns from his predecessors’ “whatever it takes to deny and deport assembly line!” No quality, no fairness, no accountability! Just “anything goes” when it’s “only immigrants of color!”
Briefing schedules aren’t “rocket science.” But Garland’s “Miller Lite” holdover gang can’t even get the simple stuff right!
How is this “expert judging” entitled to “deference?”
How is having the Circuit spend time cleaning up Garland’s messes an acceptable use of Article III resources?
What happens to the many human victims of Garland’s unjust and unprofessional system who don’t have Scott Pollock & Co. to take Garland to the Court of Appeals?
What happens to Garland’s victims when the CA is on “autopilot,” which often happens?
Is it any wonder that “judges” who would rather fight with attorneys than read their briefs are running an astounding 1.6 million case backlog and an appellate backlog of 82,000, up approximately 7 times from just four years ago?
Wonder why an AG running a “second (or perhaps third or fourth) class justice system” for people of color isn’t a very effective leader or force for racial justice in America?
Clear, concise, helpful, and correct. This is the type of guidance that should be in BIA precedents! It has the potential to “move” large number as of cases through Garland’s backlogged system.
It would also deter ill-advised “bogus oppositions” to meritorious motions such as the one woodenly advanced by DHS in this case. They do it because sometimes they are rewarded by lousy EOIR judging. At worst, it’s a crap shoot as EOIR currently functions (or, in too many cases, malfunctions).
Start consistently granting meritorious motions like this and the dilatory tactics from DHS will stop! In any system, particularly one as backlogged as this one, getting the Government to stop wasting judicial time and promoting bad results in a big step forward!
The prior Administration made an all-out effort to institutionalize bias and bad judgment. Garland has been far, far too slow in exposing and rooting out this bad behavior!
Just look around for some helpful, positive “precedential” guidance from the BIA on equitable tolling in the Fourth Circuit. Let me know if you find any!
So what aren’t cases like this precedents? Why doesGarland’s BIA instead keep publishing a steady stream of obtuse, poorly reasoned, anti-immigrant precedents written by Trump holdovers. These push IJs in the wrong direction, lead to prolonged wasteful litigation, reinforce the toxic “culture of denial,” create a “false narrative” that denies the merits of many respondents’ claims, and, worst of all, abrogate the BIA’s duty to insure fundamental fairness and due process for all!
Where’s the positive guidance on how to grant gender-based and family-based asylum cases, building on the restoration of A-R-C-G- to clear out meritorious old cases?
Where’s the positive guidance on how to “leverage” PD and administrative closing to reduce backlogs?
Where’s the positive precedent on expeditiously granting reopening in the many non-LPR cancellation cases mishandled by EOIR in light of Pereira and Niz-Chavez?
Where’s the common sense workable rule on nexus that reflects “mixed motive” and incorporates ordinary concepts of causation whilejettisoning the prior Administration’s bogus “look for any motivation that doesn’t qualify, no matter how attenuated or contrived” approach?
Where’s the reasonable bond guidance that would promote consistency and end the routine practice of setting absurdly high bonds in some Immigration Courts?
With the available talent to reshape the BIA into a body that would actually fulfill the vision of “through teamwork and innovation be the world’s best tribunal guaranteeing fairness and due process for all” why does Garland continue to screw immigrants and build more backlog by treating “Miller Lite Holdovers” as if they were life-tenured judges? They aren’t!
Although Garland appears to be in denial, “immigration judging” is some of the most consequential and important decision-making in the entire Federal Judicial System! Many, probably the majority, of those languishing in Garland’s out of control, largely self-created 1.6 million case EOIR backlog have strong claims to remain in a fair and efficient system. Yet, you would never know it by the indolent way Garland has handled the BIA mess (82,000 pending appeals) and his failure to speak out and lead by example on due process, fundamental fairness, racial justice, and human rights.
A new, functioning, expert, star-studded BIA, dedicated to due process, fundamental fairness, equal justice, human rights, and best practices, would be a great starting place! A year into an Administration that should know better, it’s long, long overdue!
Meanwhile, Elsy and other talented, motivated, committed members of the NDPA will continue to pound and expose Garland’s dysfunctional “courts” at all levels of the judicial system until we get the change that we need and that was (falsely) promised!
Few Americans favor mass deportations, and with good reason — a large majority of the estimated 10.5 million undocumented immigrants in the United States have been here for at least a decade, including more than 4 in 5 Mexican migrants. Many are fixtures in their community, with U.S. citizen spouses and children; the vast majority are employed, and some own their homes and businesses.
So it was not a radical idea when Homeland Security Secretary Alejandro Mayorkas issued new enforcement guidelines last fall that urged deportation agents to focus their efforts on actual threats to public and national safety, as well as border security. As for long-term migrants, the bulk of whom are law-abiding, Mr. Mayorkas urged Immigration and Customs Enforcement officials to use some common sense. “The fact that an individual is a removable noncitizen should not alone be the basis of an enforcement action against them,” he said.
. . . .
Despite the resistance, however, they appear to be having a preliminary and positive effect of tailoring enforcement to unauthorized immigrants who are dangerous. In the first 13 months of the Biden administration, 44 percent of deported migrants had been convicted of felonies or aggravated felonies, compared with just 18 percent during the Trump administration, according to internal ICE figures. For the same period, there was also a sharp jump, compared with under the Trump administration, in the number of arrests of migrants who had earlier convictions for aggravated felonies.
At the same time, the number of migrants held in ICE detention facilities has dropped sharply. At the end of February, roughly 18,000 migrants were detained, and the vast majority had no criminal record or had committed only minor offenses, such as traffic violations, according to the Transactional Records Access Clearinghouse at Syracuse University. By contrast, nearly three times as many migrants were held for much of 2019, when the Trump anti-immigrant blitz was in full force.
. . . .
It’s not lax enforcement to refrain from arresting very old or very young migrants, or to think twice about a deportation that would tear apart a family. It’s an intelligent application of the law.
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Read the full editorial at the link.
The Post is right. But, unfortunately, by not making this “smarter PD” part of an overall plan to reduce backlogs, reform the Immigration Courts, re-establish the legal asylum and refugee systems, and end unnecessary detention, the Biden Administration has failed to take full advantage of this promising development.
By “running” from immigration improvements rather than embracing them, they also fail to to get credit for replacing the “maliciously incompetent,” demonstrably not in the national interest Trump/Miller/Homan White Nationalist nativist policies with a functioning system that actually serves the national interest and works as well as can be expected without legislative reforms.
A major problem remains the underperformance of DOJ and EOIR under AG Garland. Without the enlightened leadership and better personnel that should now be in place, Garland has failed to “leverage and build upon” improvements in DHS enforcement priorities to slash backlog and advance due process at EOIR.
Indeed, disturbingly, Garland has actually built new Immigration Court backlogat a record pace, while inexplicably relying on a “holdover Miller Lite” BIA that continues to deliver bad precedents, resulting in increased wasteful litigation and backlog-building remands from Circuit Courts. He has also ignored the many opportunities for harnessing the innovative ideas and high-level pro bono advocacy skills developed by the private sector in response to the “Trump onslaught” to dramatically advance and increase quality representation before the Immigration Courts.
The grotesque mismanagement of EOIR by the Trump DOJ resulted in a backlog of approximately 12,000 pending BIA appeals at the end of FY 2017 exploding to more than 84,000 by the end of FY 2020 — a mind-boggling 700% increase!https://www.justice.gov/eoir/page/file/1248501/download
Yet, curiously, there has been no major personnel shakeup at EOIR under Garland. The Trump-era “hand selected” BIA whose skewed anti-asylum, anti-immigrant “jurisprudence” helped create this mess remains largely intact.
Most of the EOIR senior managers who helped DOJ engineer this unmitigated disaster remain in their jobs. Garland has sent a message that there will be no accountability for “going along to get along” with the White Nationalist war on immigrants and that he isn’t interested in expertise, fundamental fairness, creativity, or dynamic leadership by example in his reeling “court system!”
Yet, Garland continues to “blow off” and “lock out” the private/NGO sector experts who could bring rational professional docket management, higher representation rates, and resulting reductions in detention to his dysfunctional system. Instead, he continues the “Amateur Night at the Bijou” approach of unilateral “Aimless Docket Reshuffling” and endless “built to fail gimmicks” designed by bureaucrats to meet political agendas without meaningful input from and consideration of the views of those who have actual private sector experience litigating in his broken system.
How does the make sense? It doesn’t!
Of course, effective, dynamic, courageous management of EOIR to focus on constitutionally required due process would provoke reactions from the GOP nativist right, including obstructive litigation. That’s why Garland also needs better litigators at DOJ: Tough, experienced “due process warriors” who will aggressively and expertly defend and advance the Executive’s authority to rationally administer the law, allocate resources wisely and prudently, and to recognize and vindicate civil and constitutional rights that have been suppressed by GOP politicos and some of their reactionary Federal Judges.
Bottom line: Probably the majority of those 1.6 million individuals rotting in EOIR’s largely self-created backlog fit the Post’s “lead-in” description above: “Many are fixtures in their community, with U.S. citizen spouses and children; the vast majority are employed, and some own their homes and businesses.”
Many could be granted asylum or other protection under proper interpretations of the law or granted “cancellation of removal” but for the unrealistic, anachronistic 4,000 annual “numerical cap” imposed by Congress decades ago. Others could be granted Temporary Protected Status (“TPS”) just as it recently was extended to Ukrainians in the U.S.
Very few are “criminals” or others who should be “priorities” for removal. Most are actively contributing to our society and many are paying taxes. In most cases, removing individuals in the EOIR backlog from the U.S., even if possible, would be a net loss for our society.
Yet, the uncontrolled, undifferentiated EOIR backlog prevents the Immigration Courts from working in “real time” on more recent cases that might actually be proper priorities.What’s the good of a more rational and professional system at DHS Enforcement if the Immigration Courts under Garland remain discombobulated? The system will not change without dynamic expert leadership at the top and an infusion of better judges, particularly at the appellate level where precedents are set and “best practices” and some measure of fair and consistent adjudication can be established and enforced.
Immigration is a complex, often convoluted system. Without a comprehensive plan led by outside experts that fixes the Immigration Courts and restores a robust functional asylum system at our borders, the positive enforcement changes initiated by Mayorkas will continue to have limited impact. And, ironically, that will play right into the hands of the Millers and Homans of the world who would like to see democracy fail, irrationality prevail, and cruelty rule!
