Albrecht Dürer, Public domain, via Wikimedia Commons
Cornell Law
In 2015, a Ghanaian man who goes by the initials M.A. and his gay friend were brutally assaulted by a vigilante group in Accra, Ghana. In Ghana, homosexuality is illegal and carries a prison sentence of up to three years. M.A. was beaten with sticks before escaping through a window. His friend was killed. Fearing the group would find and kill him, he fled to Ecuador and made his way to the U.S. border, where he requested asylum. After being detained for nine months, he was released on bond and lived with a childhood friend in New York while he waited for his case to make it through the legal system.
M.A. clearly faced persecution, but an immigration judge denied his claim. I took M.A.’s appeal to the Board of Immigration Appeals in 2016 as part of the Cornell Law School’s asylum appeals clinic. It took M.A. four years to win asylum in America, but at least he was given the chance to apply in the first place.
Since March 2020, approximately 900,000 people — including over 215,000 parents and children — have been denied the ability to request asylum at all. They’re casualties of Title 42, a pandemic-related policy that paused nearly all asylum proceedings at the border. Some people argue the policy is preventing an influx of migrants. In fact, numbers are up despite the policy, and our refusal to process most of them has led to chaotic and dangerous conditions.
The United States has successfully managed ebbs and flows of asylum seekers for decades. There’s a system in place to manage an influx — and regardless of how hard immigration lawyers like me fight for them to stay, many will lose their case and be deported. Even so, we must let people try. It’s not only the right thing to do, it’s also guaranteed under international and domestic law. We signed a 1967 protocol to the U.N. Refugee Convention to protect the rights of refugees, and we have adopted it and codified it into U.S. asylum law. Right now, we’re violating those obligations. The longer we do, the weaker American rule of law looks to our global partners.
We must immediately reinstate due process for asylum seekers. And once this happens, we must work to make the system more equitable and faster.
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Read Steve’s complete op-ed in The Hill at the link.
I agree that “we must work to make the system more equitable and faster.” But, the answer can’t be just to hire more Immigration Judges in Garland’s dysfunctional, broken, and anti-asylum-biased “court” system. That would just speed the “deportation assembly line” and lead to even more injustice and grotesque inconsistencies.
According to TRAC, Immigration Judge “asylum denial rates” currently “range” from 5% to 100%. That’s a ridiculous, indefensible variation and a total perversion of the generous standard for granting asylum set forth by the Supremes in Cardoza-Fonseca and adopted by the BIA in Matter of Mogharrabi, but seldom enforced or followed, particularly these days. Why this very obvious, totally solvable problem is still festering going on two years into a Democratic Administration that pledged to solve it is beyond me!
Enough of this nonsense, biased, “amateur night at the Bijou” mal-administration of the Immigration Courts at EOIR by Garland’s DOJ! No wonder folks are still complaining about “Refugee Roulette” more than a decade after it was written by my Georgetown Law colleagues Professors Phil Schrag, Andy Schoenholtz, and Jaya Ramji-Nogales (now an Associate Dean at Temple Law). Why not put one of THEM, or for that matter, Professor Yale-Loehr, in charge of kicking tail and cleaning out the deadwood at EOIR?
PHOTO: Thomas Hawk
Creative Commons
Amateur Night
At a minimum Garland must:
- Remove the holdover “Asylum Deniers Club” from the BIA and replace them with a real judge as Chair and new Appellate Immigration Judges who are widely recognized as “practical experts” with careers that have demonstrated superior scholarship in immigraton and human rights, an unswerving commitment to due process for individuals, and a passion for racial justice in our legal system;
- Have the “New BIA” issue useful precedential guidance on how to document and grant valid asylum cases at both the Asylum Office and the Immigration Court, implement best practices, and identify and remove from future asylum adjudication those unqualified Immigration Judges who basically “make up” reasons to deny and can’t or won’t treat applicants fairly; and
- Immediately replace with qualified expert judges those Immigration Judges on the “Southern Border docket” who can’t fairly adjudicate asylum cases.
Steve is totally correct about the need for Title 42 to go! But, Garland’s EOIR, particularly the BIA, is just as broken, counterproductive, and out of control as Title 42! In many ways, the illegal abrogation of the rule of law at the Southern Border has somewhat ”hidden” the larger problem that a dysfunctional and incapable EOIR poses for those who do manage to get a hearing!
Without a legitimate, totally reformed and significantly “re-populated” EOIR operating at the “retail level” of our justice system, there will be no rule of law and equal justice under law in America — for anyone!
Tell Garland you have had enough! The deadly and disorderly “EOIR Clown Show” has got to go! Now!
🇺🇸 Due Process Forever!
PWS
07-28-22