"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.
Between 2015 and 2020, about fifty bodies were recovered each year in Brooks County, according to an S.T.H.R.C. report. Then came Title 42, a policy enacted by the Trump Administration at the start of the COVID-19 pandemic that closed ports of entry and blocked most avenues for asylum claims, ostensibly for public-health reasons. The policy, which is still in place in a modified form, has increased business for smuggling cartels and spurred people to cross in more dangerous places. “Before Title 42, the calls we got used to be, like, eighty-per-cent apprehended, twenty-per-cent missing,” Canales said. “Now it’s flipped—it’s more like twenty-per-cent apprehended, eighty-per-cent missing.” So far this year, there have been nearly seventy recoveries of remains in Brooks County, putting 2022 on track to be the deadliest year on record.
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Read Rachel’s entire report, directly from the border, at the link.
So, before the Trump Administration’s bogus, racist “invocation” of Title 42, 80% of migrants came to the border or were easily apprehended close thereto — most probably because they turned themselves in to seek asylum through the legal system. And, lets not forget, this was with an already badly broken, fundamentally unfair, asylum legal adjudication system intentionally biased and “loaded” against legitimate refugees seeking protection!
Smart, honest public policy would have improved asylum adjudication at USCIS and at EOIR to quickly recognize and grant, with the assistance of NGOs and legal assistance groups, the many cases of legitimate refugees so that they could take their rightful, legal places in our society.
Additionally, by taking refugees seeking legal determinations “out of the equation,” enforcement against those seeking to evade legal processing — certainly a much, much smaller “universe” than is “out there now” — would have been enhanced. Business would have declined for smugglers, as those seeking protection would have been motivated to use a humane, fair, functioning legal system rather than being forced into “do it yourself” refuge!
You don’t have a genius to figure this out — just not be motivated solely by racism like Stephen Miller and his Trump regime cronies! Better qualified — non-Jim Crow righty — Federal Judges would also produce more humane, honest, and rational results.
Additionally, by running a legitimate asylum system, and complementing it with an honest, robust, legal refugee system for Latin America, the Caribbean, and Africa, we would finally have sound data on how many of those seeking to enter at the Southern Border are entitled to immigrate as legal refugees and how many are non-refugees. That’s something on which we now have no reliable information— just myths and anecdotes, many provided by racist restrictionists and nativists with neither expertise in asylum law nor any real interest in the rule of law at the border.
As a result of Title 42, and the unqualified “Jim Crow” Federal Judges, GOP nativist AGs, and their apologists (including some in the media who repeat or republish, without critical examination, GOP racist lies about the border), we now have a deadlier than ever border; the legal immigration system at the border has been functionally abolished and replaced with an underground, extralegal system; the U.S. Government has ceded control of border migration policy to cartels and smugglers; and the job of the Border Patrol — forced to spend time apprehending legal refugees who seek only the protection to which they are legally entitled — has become impossible.
That’s what happens when we let GOP nativist pols, overt racists, and bad, right wing Federal Judges take over the immigration policies that were actually enacted by Congress — a key part of which are legitimate refugee and asylum systems and a fair, functioning, expert Immigration Court. Right now, we have NONE of the foregoing. And, innocent migrants at the border are too often paying the price — with their lives!
“Enforcing the law” does NOT mean unfairly, unwisely, and illegally abrogating the legal asylum system and fair adjudications in Immigration Court at the border. It means fixing the legal asylum system including USCIS Asylum Offices. Perhaps most of all, it means reforming and replacing where necessary the broken, dysfunctional, leaderless, and non-expert Immigration Courts and a BIA that continues to misinterpret asylum and protection laws on a daily basis. We need a BIA of real judges with the expertise and guts to establish fair, humane, correct, positive precedents and to rein in or remove from asylum cases those Immigration Judges who are “programmed to reject, not protect!”
I, along with many others, watched the Brittney Griner travesty unfold. I saw the irony. President Biden was rightfully blasting the outrageous “kangaroo court” show trial that passes for justice in Russia. But, at the same time, he, Harris, and Garland are basically running a farcical “Russian style” dysfunctional immigrant “justice” system at EOIR and calling it a “court!”
Perhaps, in addition to blasting the Griner farce, President Biden, VP Harris, and AG Garland need to take a closer look at the “Russian-style” justice being inflicted on migrants in their wholly-owned Immigration “Courts” — which particularly target women, children, and migrants of color seeking justice under US laws. Indeed, many are still being arbitrarily returned without ANY process at all! Others get “off the wall” denials of their valid claims. Its this REALLY any way for a self-proclaimed “nation of laws” to operate? https://www.flickr.com/photos/rasputin243/ Creative Commons License
Rev. Craig Mousin Ombudsperson Refugee and Forced Migration Studies, Grace School of Applied Diplomacy DePaul University PHOTO: DePaul Website
Craig writes:
We just posted our latest podcast urging folks to email or call Congress to stop Title 42, “Do Not Let Summer Daze Turn Pretense Into Law: End Title 42.”
Title 42 is a total, disgraceful fraud that violates U.S. and international law, abuses (and sometimes kills) vulnerable refugees seeking to exercise legal rights, and turns immigration policy over to cartels and human smugglers
Shockingly, instead of standing up for due process, human rights, and the rule of law, horrible right-wing Federal Judges have gone along with this farce at the urging of GOP White Nationalist state AGs.
Julia Toepfer National Immigrant Justice Center (“NIJC”)
Since the 1990s, U.S. immigration policy has centered the goal of decreasing or “deterring” migration. These policies are designed with one goal in mind – punishing people for the act of migration with such cruelty that the harsh measures themselves will deter future migration.
Not only does this strategy not work, but it has deadly human consequences.
The devastating toll of deterrence programs came into full view with the recent tragedy in San Antonio, Texas, where 53 migrants died in the back of a tractor-trailer after attempting to enter the United States. Human rights experts, including NIJC, responded by emphasizing the urgent need to shift away from programs that block lawful pathways to entry or push people toward dangerous terrain.
Nonetheless, the U.S. government continues to double-down on policies and programs aimed at deterring migration. Some recent examples include continuing the Trump-era Remain in Mexico and Title 42 programs, and increasing the use of criminal prosecutions to punish migrants alleged to enter the country without authorization. Here are updates on each of these programs since we last reached out to you about them, along with ways you can demand that the U.S. government restores access to asylum and stops punishing people for migrating:
➡️ Recently, the Supreme Court ruled that the Biden administration could end the Remain in Mexico program, and it’s now time for the administration to follow through. Also known as the Migrant Protection Protocols (MPP), this program has forced more than 75,000 people to wait in dangerous conditions in Mexico while their claims are pending in U.S. immigration courts. This program defaced basic principles of due process and decades of U.S. commitment to protect people from harm and persecution. NIJC continues to represent dozens of asylum seekers who were subject to the program, including some who are still waiting in Mexico. Sign the petition calling on President Biden to end Remain in Mexico.
➡️ Border Patrol just released new data showing there have been 2,132,711 expulsions of people seeking safety at the U.S. border under Title 42, the vast majority of which happened under the Biden administration. The Trump administration implemented Title 42 under the guise of protecting public health during COVID-19, but the real goal was always to block Black, Brown, and Indigenous people from migrating to the United States. There have been nearly 10,000 documented cases of kidnappings, rape, torture, or other acts of violence against people who were expelled under Title 42. Yet, right now, some members of Congress are trying to pass legislation that continues this policy indefinitely. Tell your members of Congress to end Title 42 and oppose all efforts to continue it indefinitely.
➡️ The Biden administration is ramping up the use of criminal prosecutions to punish migrants arriving at the U.S. border, despite decades of evidence showing these prosecutions don’t work to deter migration and cause widespread harm. The increased use of such prosecutions flies in the face of the administration’s commitments to racial equity and to a more humane approach to migration policy. Criminal prosecutions do not stop people from crossing the border, but instead have caused widespread harm, separated countless families, and undermined asylum rights. Check out NIJC’s latest blog post explaining five ways that immigration prosecutions are deadly and ineffective.
NIJC knows, from years of representing immigrants and asylum seekers, that punitive border policies do not deter people from fleeing violence or seeking to reunite with their families.
Above all, immigration policies focused on deterrence inevitably and tragically cause countless deaths and untold human suffering. The U.S. must abandon a deterrence strategy, reopen ports of entry for asylum screenings, and embrace a humanitarian approach to immigration – it’s the only way to end systemic injustices, reduce mass incarceration, and protect fundamental human rights.
Thanks for joining us to get there.
-Julia Toepfer
National Immigrant Justice Center
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“Maximum deterrence programs” have little empirical support. Human migration, a phenomenon as old as humanity, is largely driven by powerful forces beyond whether a rich country has built walls, prisons, unfair legal systems, and other artificial barriers to “deter” migration. At best (or worst, depending on how one looks at it) these “gimmicks” and the predictable accompanying “rhetoric of hate, dehumanization, and rejection” nibble around the edges of migration patterns.
But, they are deeply rooted in the racial history of the U.S., and play a major role in the White Nationalist mythology that surrounds deterrence.
A smart nation might harness, take advantage of, and direct the flow of human migration. Ultimately, failed deterrence gimmicks will inflict cruelty and cause the death of some migrants. They also diminish the reputation and diminish the humanity of the “destination nation.”
But, they won’t stop folks from leaving intolerable situations to seek a better life elsewhere — no matter what the odds, risks, or hardships. And, they eat up money and resources that could actually be directed into building more realistic legal migration systems that would benefit both the migrants and the receiving countries.
GOP political hacks and their enabling bad righty Federal Judges have combined to wreak havoc on humanity and trample the Constitution, rule of law, common sense, and simple human decency at our Southern border! Albrecht Dürer, Public domain, via Wikimedia CommonsProfessor Stephen Yale-Loehr 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?
This approach to life or death asylum adjudication at EOIR, particularly the BIA, is a killer! 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!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Through our reporting, we exclusively learned that U.S. Customs and Border Protection quietly changed last year how they count deaths on the border to only include deaths in custody, during arrests or when agents were nearby and there were 151 such “CBP-related” deaths in the 2021 fiscal year.
We are still reporting on this and other issues of course, so please keep in touch with tips and story ideas!
Thanks, Mica. “Tune in” to the full “multimedia report” referenced by Mica at the above link to Reuters.
No amount of statistical hocus-pocus or nativist BS can hide the stain of these deadly, yet ultimately ineffective, border enforcement policies. It’s important that the names and actions of the politicos, bureaucrats, and bad judges who promote and encourage deadly violations of human rights, and their media apologists, be preserved and documented for history!
As we can see, there are, and will continue to be, concerted efforts to “cover up,” deny, and misrepresent the deadly effects of bad border policies! “Dehumanization of the other,” actively promoted by Trumpists and other White Nationalist GOP pols and their hand picked Federal Judges is a crucial first step!
⚡️🔌 SHORT CIRCUIT! — TOTALLY UNQUALIFIED TRUMP HOLDOVER & ANTI-IMMIGRANT ZEALOT TRACY SHORT FINALLY FORCED OUT @ EOIR — Notorious Member Of Sessions-Hamilton-Barr “Atlanta Xenophobic Mafia” 🏴☠️ Resigns 😎⚖️🗽👍🏼
By Paul Wickham Schmidt
Special to Courtside
July 21, 2022
Multiple sources report that now-former Chief Immigration Judge Tracy Short resigned today. This long overdue action ends one of the most grotesque ongoing farces in the American legal system.
This total travesty saw the Trump holdover member of the Sessions-Hamilton “Atlanta Xenophobic Mafia” — appointed by former AG Barr without any judicial experience or qualifications — continue to drag down the Immigration Courts with increased due-process-denying backlogs and anti-immigrant shenanigans during the first 18 months of the Biden Administration. As a “Senior Executive,” Short could and should have been reassigned long ago by AG Merrick Garland to a position where he no longer could undermine American justice.
Short’s appointment by Barr two years ago stunned and outraged experts and practitioners. https://wp.me/p8eeJm-5HB. ICE Atlanta and the Atlanta Immigration Court were generally held in low professional regard by practitioners and observers not part of the nativist cabal with which both have long been associated.
Short’s appointment was particularly galling to those committed to due process and fundamental fairness because he replaced then Acting Chief Immigration Judge Christopher Santoro, a far more qualified candidate who had been an outspoken force for fairness and impartiality. That’s actually what the Immigration Courts are supposed to be about, but clearly were not during the Trump era at DOJ.
Short’s resignation comes as the National Association of Immigration Judges (“NAIJ”) seeks “re-recognition” from the Biden Administration. Short helped spearhead Barr’s inexplicably successful effort to “de-certify” the NAIJ as thinly disguised “punishment” for speaking out for judicial independence and exposing the many ongoing abuses of due process at EOIR.
Predictably, nativist/restrictionist groups and their “GOP cheerleaders” like Sen. Chuck Grassley (R-IA) and insurrectionist apologist Rep. Jim Jordan (R-OH) raised absurdist claims of a “political vendetta.” That’s ironic considering that the Trump group improperly “weaponized”EOIR to serve not as a legitimate quasi-judicial arbiter, but rather as an overtly biased and unqualified “enforcer” of their racially-charged “gonzo” enforcement policies.
The latter combined illegality, incompetence, and gratuitous cruelty in a toxic brew directed at migrants. It particularly targeted those of color, women, and children.
This apoplectic response by the radical right in and of itself should assure Garland that he is finally on the right track with getting unqualified judges and administrators out of EOIR and replacing them with competent judges with reputations as fair-minded experts in due process, human rights, and immigration. Perhaps the curtain is finally beginning to come down on the long-running “clown show” at EOIR!
During the Trump Administration, appointment of former prosecutors as Immigration Judges outnumbered appointments from the ranks of private and academic sector practitioners by approximately nine to one. At first, Garland curiously did little to change that — actually elevating some of his predecessors’ questionably-qualified candidates. Now, this very modest long overdue effort to rid the system of “deadwood” and bring in at least some experts from outside the world of government prosecutors is sending “shockwaves” through “restrictionist world.” Restrictionists ran roughshod over the Immigration Court system during the days of White Nationalist Stephen Miller and his cronies! They obviously hate the idea that the Biden Administration belatedly is acting like the 2020 election actually had consequences!
No immediatereplacement for Short was named by EOIR. Garland must not pass up this opportunity to bring true expertise and dynamic due-process-focused leadership into his broken EOIR court system! It’s up to everyone committed to fairness and due process for all at EOIR to make sure that Garland “gets it right” this time around!
Wendy Young President, Kids In Need of Defense (“KIND”)
Dear Paul –
The entire team at Kids In Need of Defense is devastated by the news that at least 46 people were found dead in an abandoned tractor-trailer in Texas and more than a dozen others in the truck, including children, were taken to local hospitals for treatment. While we wait for more details to emerge, we wanted to share the following statement from our President, Wendy Young.
“As rising violence, natural disasters, and other threats force migrants to make impossible choices in their quest to find safety, our nation’s response cannot be to place families and children in further harm by indefinitely closing our borders to people seeking protection and ignoring the dangers they face in their home countries. This most recent tragedy and the disturbing rise in migrant deaths globally underscore the need to create safer pathways to protection for refugees. The Biden Administration should see this heartbreaking tragedy for what it is, a clarion call to abandon deeply flawed and dangerous immigration policies. It must reinstate humane and orderly processing, including reopening official ports of entry, hiring child welfare experts to care for and screen children, and provide fair adjudication of protection claims. It is time for the United States to regain its footing as a leader in the protection of migrant families and children.”
– The KIND Team
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The key part of Wendy’s statement: “including reopening official ports of entry, hiring child welfare experts to care for and screen children, and provide fair adjudication of protection claims.”
Denial rates for recent arrivals who manage to get hearings (see, e.g., Garland’s bogus “dedicated dockets,” — actually “dedicated to denial” and nothing else), many of them children and unrepresented, hover around 100%. They are “guided” by a “largely holdover,” anti-asylum BIA that lacks true asylum expertise and issues no positive precedents instructing judges on how to consistently and legally grant asylum. Consequently, there is no “fair adjudication” of asylum claims. That feeds the toxic nativist myth that nobody at the Southern Border is a “legitimate” asylum seeker.
Unless and until Garland tosses the unqualified jurists at EOIR and replaces them with experts committed to due process, fundamental fairness, and correct, generous, practical precedents and proper applications of asylum law, the system will remain in failure. It’s a monumental mistake by the Biden Administration not to fix that which they absolutely control — starting with the Immigration Courts at EOIR.
Refugees will continue to die at the hands of smugglers who were given control of our immigration system by the Trump Administration and remain empowered by Garland’s & Mayorkas’spoor performance combined with biased, White Nationalist, Federal Judges appointed by Trump at all levels of our failing justice system!
Today’s WashPost editorial described how far-right nativists have basically turned our immigration system over to smugglers:
The absence of any workable legal system that would admit migrants systematically, in numbers that would meet the U.S. labor market’s demand, is the original sin of the chaos at the border. That is Congress’s bipartisan failure, a symptom of systemic paralysis for many years. More recently, a public health rule has had the effect of incentivizing unauthorized migrants to make multiple attempts to cross the border. The rule, imposed by the Trump administration, retained for more than a year by the Biden administration, and now frozen in place by Republican judges, allows border authorities to swiftly expel migrants, but with no asylum hearings or criminal consequences for repeated attempts to cross the border. That has been a boon to migrant smuggling networks.
I take issue with the term “bipartisan failure” in the legislative context. It’s true that the Dems inexplicably squandered a golden chance to fix many immigration problems when they had 60 votes in the Senate in Obama’s first two years. But, before and after that time, the failure to achieve realistic, humane, robust legal immigration reform legislation has been on the nativist right of the GOP that now dominates the party. Pretending otherwise is useless and dishonest.
All of these proposals would have made long-overdue, common sense reforms to eliminate hopeless backlogs, benefit our economy, strengthen our legal system, and facilitate better allocation of Government resources. Yet, there has been scant GOP interest in improving the system. The GOP appears to believe that promoting a dysfunctional immigration system, denying human rights, and guaranteeing a large “extralegal population” available as scapegoats and exploitable labor best serves their parochial political interests.
And, speaking of useless and dishonest, here’s Leon Krausze, WashPost Global Opinions Contributor, on how the disingenuous performance of Texas Governor Greg Abbott and Mexican President Andres Manuel Lopez Obrador has helped fuel both resurgent Mexican migration and unnecessary deaths at or near the border. https://www.washingtonpost.com/opinions/2022/06/29/san-antonio-migrant-deaths-trailer-mexico-amlo/.
The “good guys” — those committed to due process, fundamental fairness, individual rights, equal justice, scholarship, and human dignity — need to fight back at every level of our political and judicial systems — while they still exist! Because if the GOP has its way, that won’t be for long!🏴☠️
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 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.
The 6/10/22 order in Texas v. United States vacating the memo went into effect 6/24/22 and has not been stayed at this time. Regardless of the memo, it is important to continue arguing that prosecutorial discretion is a longstanding executive power and DHS retains the ability to join motions, stipulate to relief, etc. See Practice Alert: Judge Tipton Issues Decision Vacating Mayorkas Enforcement Priorities Memo.
USCIS: Where community levels are high, all federal employees and contractors—as well as visitors two years old or older—must wear a mask inside USCIS offices and physically distance regardless of vaccination status. Check CDC Level for Your Field Office.
Bustle: At a base level, the abortion restrictions detained women face are similar to the ones that low-income women face across the country because of the Hyde Amendment. For more than 40 years, the Hyde Amendment has prevented women on Medicaid from using federally funded insurance to pay for abortions, except in cases of rape, incest, or danger to the mother’s life. The same type of language exists in appropriations bills and healthcare regulations for all facets of the federal government, including the Immigration and Customs Enforcement agency.
AP: The Border Patrol paroled more than 207,000 migrants who crossed from Mexico from August through May, including 51,132 in May, a 28% increase from April, according to court records. In the previous seven months, it paroled only 11 migrants.
Guardian: At least 71,000 Ukrainians have entered the US since March, with Joe Biden’s pledge to welcome 100,000 people fleeing the Russian invasion on track to be met over the summer.
Bloomberg: The amendment, which faces a long path to the finish line in the appropriations process, would allow DHS to recapture family and employment-based visas that went unused due to bureaucratic snags, processing delays, and other disruptions since 1992.
AIC: Data analyzed by the Cato Institute shows that since Fiscal Year 2008, USCIS denied about 8% of employer-sponsored immigrants while the average denial rate by consular officers was 63%.
Law360: The Biden administration announced plans to issue a final Deferred Action for Childhood Arrivals rule by August and continue its efforts to undo multiple Trump-era regulations. Here are the main immigration highlights from the administration’s regulatory agenda for spring 2022.
WaPo: Critics of the measure say it perpetuates a false scarcity problem at a time when Virginia has a budget surplus, and it demands that lawmakers sacrifice one needy group of students for another.
Forbes: In a new book describing her years during the Trump administration, former Education Secretary Betsy DeVos revealed a plan by Stephen Miller to identify children at school for deportation under the pretext of checking for gang members.
Law360: The Biden administration has agreed to impose new living and sanitary standards on temporary emergency facilities housing hundreds of migrant children to resolve advocates’ claims that it was holding minors in unsafe and unsanitary conditions.
The Advocate: Immigration judges in Louisiana have denied asylum claims at a higher rate than almost any other courts in the nation over the past five years, according to federal data. However, a new federal rule might downsize their role in asylum proceedings.
CNN: The justices are considering whether the Biden administration can terminate a Trump-era border policy known as “Remain in Mexico.” Lower courts have so far blocked Biden from ending the policy.
SCOTUS: The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Tenth Circuit for further consideration in light of Matter of B-Z-R-, 28 I&N Dec. 563 (A.G. 2022).
BIA: A respondent who raises an objection to missing time or place information in a notice to appear for the first time in a motion to reopen has forfeited that objection.
Law360: A Dominican man got a new chance to fight his deportation on Tuesday when the Third Circuit ruled that his felony conviction under Pennsylvania’s fleeing and eluding law didn’t necessarily amount to a crime of moral turpitude.
LexisNexis: For years, Petitioner Javier Garza-Flores did not believe he had a valid claim to U.S. citizenship. But now he thinks that he does. And he has presented documentary evidence sufficient to demonstrate, at a minimum, a genuine issue of material fact concerning his claim of U.S. citizenship. That is enough to warrant a factual proceeding before a federal district court to determine his citizenship.
CA7: The Board’s main quibble was with the relevance of that evidence to an Ethiopian citizen, which it assumed Menghistab to be. But that assumption was not warranted on the record that was before the Board. Denying the motion to reopen without a full hearing addressing Menghistab’s citizenship and its materiality to his risk of torture was therefore an abuse of discretion.
Law360: The Ninth Circuit on Friday granted a Salvadoran’s request to have the Board of Immigration Appeals review claims that he would be tortured if sent back to the Central American country, saying the board originally failed to consider all possible risk sources.
Law360: U.S. Customs and Border Protection and Davis Wright Tremaine LLP have settled a Freedom of Information Act suit the firm filed over reports the agency decided Canadian cannabis workers weren’t eligible to enter the U.S., which led to an overturned internal document contradicting officials.
Law360: A Boston federal jury has found a construction company and its owner liable for retaliating against an employee by reporting him to immigration authorities after his on-the-job injury triggered a workplace investigation, awarding $650,000 in damages.
USCIS: A noncitizen who again seeks admission more than 3 or 10 years after the relevant departure or removal, is not inadmissible under INA 212(a)(9)(B) even if the noncitizen returned to the United States, with or without authorization, during the statutory 3-year or 10-year period
CBS: While the suspension of ICE’s arrest prioritization scheme is unlikely to place the country’s estimated 11 million unauthorized immigrants in immediate danger of being arrested, the absence of national standards could lead to inconsistent enforcement actions across the U.S., including arrests of immigrants whom agents were previously instructed not to detain, legal experts said.
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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
Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
According to a new book from former Trump Education Secretary Betsy DeVos:
“Over the din of patrons slurping lattes and crunching salads, Miller’s men described a plan to put U.S. Immigration and Customs Enforcement (ICE) agents into schools under the pretext of identifying MS-13 gang members. The plan was, when agents checked students’ citizenship status for the alleged purpose of identifying gang ties, they could identify undocumented students and deport them. Not only was the prospect of this chilling, but it was also patently illegal. Nate and Ebony turned them down cold. But that didn’t stop Stephen Miller from subsequently calling me to get my thoughts on the idea.
For years, the BIA has had standard practice of giving short shrift to potentially valid claims for protection under the Convention Against Torture (“CAT”). Without meaningful analysis they simply cite John Ashcroft’s infamous “no CAT precedent” in Matter of J-F-F-,23 I&N Dec. 912 (A.G. 2006), requiring that “each link in the chain of torture be proved to be probable.”
Since there is almost always some allegedly “weak link in the chain” that’s an “easy handle” for denial.Also, The IJ and the BIA can “lengthen the chain” or ignore the evidence as necessary to “get to no.” In the process, compelling evidence of likelihood of torture from qualified expert witnesses is either ignored or minimized — again, without much analysis. That’s how the “denial factory” in Falls Church can keep churning out CAT rejections even to countries where torture is rampant and either furthered or willfully ignored by the repressive governments.
At least in the 9th Circuit, the BIA will now have to go “back to the drawing board” for denying CAT and returningindividuals to countries where torture with government participation or acquiescence is likely. The 9th Circuit case rejecting the BIA’s “formula for denial” is Velasquez-Samayoa v. Garland. Here’s a link in addition to the one provided by Elizabeth.https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca9-on-cat-velasquez-samayoa-v-garland
Louisiana has long been one of a number of EOIR “courts” — these are actually “prison courts” — where “asylum cases go to die.” The deadly combination of bad Immigration Judges, lack of skilled immigration attorneys able to take these cases pro bono, coercive use of detention in out of the way places in substandard conditions, a “denial oriented” BIA stacked by the Trump DOJ and not “unstacked by Garland,” and an indolent, often virulently anti-asylum 5th Circuit add up to potential death sentences for individuals who could gain protection under a system where due process and fundamental fairness were respected and followed.
As the report in The Advocate referenced by Elizabeth shows, Garland has failed to reform and improve this blot on American justice. And, there is little chance that assigning the cases to USCIS Asylum Office in the first instance under new regulations in this intentionally toxic environment is going to promote justice or efficiency.
One might view the wide discrepancy between “positive credible fear findings” and asylum grants in Immigration Court as a sign of a sick and dying EOIR, not lack of merit for the claims. With less detention, more representation, better Immigration Judges, and a new BIA of true asylum experts willing to grant protection rather than “engineer rejection,” I’ll bet that many, perhaps a majority, of the outcomes would be more favorable to applicants.
As noted by Mitch Gonzalez of the SPLC in the article, “dehumanization,” “de-personification,” and “Dred Scottification,” along with cruelty are the objects of what’s going on at EOIR in Louisiana. The “fit” with the Trump/Miller White Nationalist anti-immigrant program is obvious. What’s less obvious is why Garland and the Biden Administration haven’t intervened to make the necessary changes to restore EOIR in Louisiana and elsewhere to at least some semblance of a fair and impartial “court system.”
Anti-Asylum Judges In Action! Factual distortions, ignoring evidence, and misapplications of the law are some of the “weapons” wielded by some EOIR judges to stop asylum seekers from getting the life-saving legal protections they deserve! Article III Courts can compound the problem by mis-using “deference” to avoid critical examination of the frequent abuses of humanity and the rule of law inflicted by this parody of a court system. Albrecht Dürer, Public domain, via Wikimedia Commons
ONE TINY STEP FOR MANKIND: But It’s Going To Take Much More Than Finally Replacing A Few Stunningly Unqualified Judges To Save EOIR!
By Paul Wickham Schmidt
Courtside Exclusive
June 25, 2022
Over the last few weeks the long overdue and essential process of weeding out poorly qualified Immigration Judges — still on “probation” at EOIR — finally got off to a very modest start.
Imagine yourself as a refugee fighting for your life in an asylum system that’s already stacked against you and where the “judges” work for the Attorney General, part of the Executive Branch’s political and law enforcement apparatus.
How would you like your life to be in the hands of (now) former Immigration Judge Matthew O’Brien. He was appointed in 2020 by former AG Bill Barr — a staunch defender of the Trump/Miller White Nationalist, xenophobic, anti-immigrant agenda.
Nativism A “Qualification?”
What made O’Brien supposedly “qualified” to be a “fair and impartial” administrative judge?
Thankfully, O’Brien will pass into history. But, the damage inflicted by the “official policy of child abuse” will adversely affect generations.
Or, perhaps it was O’Brien’s intimate connection with a leading nativist group. Immediately prior to his appointment, he was the “Research” Director for the Federation for American Immigration Reform (“FAIR”) — a group renowned for sloppy to non-existent “research” and presenting racially-motivated myths and fear mongering as “facts.”
As noted by Nowrasteh, that’s not the only example of FAIR providing “bogus research papers” designed to “rev up hate” and demean the contributions of immigrants both documented and undocumented.
The Anti-Defamation League (“ADL”), one of America’s most venerable anti-hate, anti-misinformation groups, founded more than a century ago “To stop the defamation of the Jewish people and to secure justice and fair treatment to all,” had this to say about O’Brien’s former employer:
While the majority of the extreme anti-immigrant sentiment in the U.S. emanates from fringe groups like white supremacists and other nativists, there are a number of well-established anti-immigrant groups such as Federation for American Immigration Reform (FAIR), Center for Immigration Studies (CIS), NumbersUSA and The Remembrance Project which have secured a foothold in mainstream politics, and their members play a major role in promoting divisive, dangerous rhetoric and views that demonize immigrants. A number of these groups have attempted to position themselves as legitimate advocates against “illegal immigration” while using stereotypes, conspiracy theories and outright bigotry to disparage immigrants and hold them responsible for a number of societal ills. A decade ago, most of this bigotry was directed primarily at Latino immigrants, but today, Muslim and Haitian immigrants, among others, are also targeted.
. . . .
There is a distinct anti-immigrant movement in this country, whose roots can be traced back to the 1970s. Groups such as the Federation for American Immigration Reform (FAIR) and Center for Immigration Studies (CIS) hope to influence general audiences with somewhat sanitized versions of their anti-immigrant views. In their worldview, non-citizens do not enjoy any status or privilege, and any path to citizenship for undocumented immigrants or refugees is portrayed as a threat to current citizens. Like some other problematic movements, the anti-immigrant movement also has a more extreme wing, which includes border vigilante groups, as well as groups and individuals that seek to demonize immigrants by using racist, sometimes threatening language.
So, perhaps, you say, once actually “on the bench,” Judge O’Brien was able to overcome his biases and knowledge gaps and function as a fair and impartial judicial officer. Nope! Not in the cards!
According to TRAC, O’Brien denied almost every asylum case he heard (96.4% denials). That was, astoundingly, nearly 40% above the average of his colleagues in Arlington and nearly 30% higher than the nationwide asylum denial rate of approximately 67%.
But, to put this in perspective, we have to recognize that this denial rate had already been intentionally and artificially increased by a expanded,”packed,” politicized, “weaponized,” and intentionally “dumbed down” EOIR during the Sessions/Barr era at DOJ. For example, approximately 10 years ago, more than 50% of asylum, cases were being granted annually nationwide, and approximately 75% of the asylum cases in Arlington were granted. See, e.g., https://trac.syr.edu/immigration/reports/judge2014/00001WAS/index.html. And, even then, most asylum experts would have said that the nationwide grant rate was too low.
Gaming The System For Denial
It’s not that conditions in “refugee/asylum sending” countries have gotten better over the past decade! Far from it! The refugee situation today is as bad as it has ever been since WWII and getting worse every day.
So, why would legal refugee admissions be plunging to record lows (despite a rather disingenuous “increase in the refugee ceiling” by the Biden Administration) and asylum denials up dramatically over the past decade?
It has little or nothing to do with asylum law or the realities of the worldwide refugee flow, particularly from Latin American and Caribbean countries. No, it has to do with an intentional move, started under Bush II, tolerated or somewhat encouraged in the Obama Administration, but greatly accelerated during the Trump-era, to “kneecap” the legal refugee and asylum processing programs. Indeed, the “near zeroing-out” of refugee and asylum admissions and the illegal replacement of Asylum Officers by totally unqualified CBP Agents by the Trump Administration are two of the most egregious examples.
Ironically, the EOIR backlog tripled. Under the “maliciously incompetent management” of the Trump group at DOJ, more judges actually meant more backlog! How is that giving taxpayers “value” for their money?
Some of the new judges, like O’Brien and some of the Immigration Judges “elevated” to the BIA, were appointed specifically because of their established records of anti-asylum bias, rude treatment of attorneys, and dehumanizing treatment of asylum seekers and other migrants.
“Ignorance And Contempt”
It’s not like O’Brien was just your “garden variety” “conservative jurist.”(I’ve actually worked with many of the latter over the years). No, he was notorious for his lack of scholarship, rudeness, and bias!
Here are a few of the comments he received on “RateYourJudge.com:”
“Rarely grants cases. No knowledge of the law, only there to deny cases. He needs to be removed.”
“Biased judge, hates immigrants and even kids of immigrants.”
“Incompetent.”
“One of the most condescending and self-righteous judges I have had the displeasure to hear. His word choice and tone left absolutely no doubt that he considered the Respondent to be beneath his notice, even to the point of referring to her as “the female Respondent” and to her domestic partner as a “paramour”. I have heard other judges’ oral opinions on very similar sets of facts, and they were accomplished in a fifth of the time with no loss of dignity to anyone.”
“This guy’s ignorance about immigration law and contempt for the people who appear before him is staggering. The way he threatens lawyers is reprehensible. EOIR is a disgrace.”
“Horrible human being with no business being on the bench. Shame on EOIR for allowing him to continue adjudicating cases.”
“Late, abusive, made up his mind before the case even started, frequently interrupted testimony, yelled at immigrants and their lawyer, and refused to listen to anything we said. Ignorant of the law and facts of the case. He should go back to directing hate groups.”
Among the stream of negative comments there were three “positive” comments about O’Brien;
Most of the comments both positive and negative were “anonymous” or apparent user “pseudonyms;”
“RateMyImmigrationJudge” is neither comprehensive nor transparent.
Flunking the “Gold Standard”
So, was O’Brien really as horrible as most experts say? Let’s do another type of “reality check.”
Among the other IJs at the Arlington Immigration Court, two stand out as widely respected expert jurists who have served for decades across Administrations of both parties. Judge John Milo Bryant was first appointed as an Immigration Judge in 1987 under the Reagan Administration. Judge Lawrence Owen Burman was appointed in 1998 under the Clinton Administration. With 66 years of judicial service between them, they would be considered more or less the “gold standard” for well-qualified, subject matter expert, fair and impartial Immigration Judges.
Significantly, according to the last TRAC report, O’Brien’s asylum grant rate of 3,6% wasapproximately 1/15th of Judge Bryant’s and approximately 1/22 of Judge Burman’s. https://trac.syr.edu/immigration/reports/judgereports/. Case closed! O’Brien should never have been on a bench where asylum seekers lives were at stake and expertise and fairness are supposed to be job requirements!
“Worse Than O’Brien”
What about now former Arlington Immigration Judge David White who was removed at the same time as O’Brien? Apparently, during his relatively short tenure (appointed by Barr in 2020), White was unable to deny enough asylum to qualify for TRAC’s system (100 decisions minimum).
Yet, he made an indelible impression on those “sentenced” to appear before him. Here are comments from RateMyImmigrtionJudge.com:
“This judge is absolutely terrible. Unfair and biased. He is only here to deny asylum cases regardless of what the person has been through. Completely misstates the facts, doesn’t know the law so goes after credibility (using those misstated facts) as an excuse to say there’s no past persecution. Absolute disgrace.”
“Worst judge ever. The clerks at the Immigration Court told the private bar attorneys that they have NEVER seen this judge approve an asylum case. Not one. They have running bets and jokes about him, but he never grants. He writes the denial during the trial instead of listening to the person testify. He is insulting and rude and not at all compassionate about trauma.”
“This is the worst immigration judge in Arlington, hands down. He’s even worse than O’Brien, and O’Brien is an former hate-group director.”
“Terrible immigration judge. Had his mind made up well before our hearing. Came in with a prewritten denial that misstated the law. Was rude and dismissive about my client’s trauma.”
Wow! Worse than O’Brien. That’s quite an achievement.
GOP Court Packing
Fact is, the overt politicization, “weaponization,” and “dumbing down” of the Immigration Courts goes back nearly two decades to AG John Ashcroft and the Bush II Administration. Ashcroft reduced the size of the BIA as a gimmick to “purge” the supposedly “liberal” judges — those, including me, who voted to uphold the legal rights of migrants against government overreach. In other words, our “transgression” was to stand up for due process and the individual rights of immigrants — actually “our job” as properly defined.
And, the downward spiral has continued. The DOJ Office of Inspector General (“OIG”) actually confirmed some of the Bush II improper Immigration Judge hires. But, they avoided dealing with the “BIA purge” that got the ball rolling downhill at EOIR! The GOP has been much more skillful than Dems in reshaping the Immigration Courts to their liking.
During the Trump Administration, putting clearly unqualified IJs who were some of rudest highest denying in America on the BIA was certainly “packing” and “stacking” EOIR against legitimate asylum seekers. Again, however, the OIG failed to “seal the deal” regarding this outrageous conduct that has undermined our entire justice system, fed uncontrollable backlog, and cost human lives that should and could have been saved.
Trump’s “court packing scheme” was no “small potatoes” matter, even if some in the Biden Administration are willfully blind to the continuing human rights and due process disaster at EOIR.
Removing two of the most glaringly unqualified Barr appointees in Arlington is a very modest step by AG Garland in the right direction. But, it’s going to take more, much more, decisive action to clean out the unqualified and the deadwood, bring in true expertise and judicial quality, and restore even a modicum of legitimacy and integrity at EOIR.
Reactionaries’ Predictably Absurdist Reaction
Meanwhile, even this long overdue, well justified, and all too minimal change at EOIR produced totally absurdist reactions from O’Brien and fellow nativists (including some still “hiding out in plain sight” at DOJ) which were picked up by the Washington Times (of course). Don’t believe a word of it!
The removal of guys like O’Brien and White — who never had any business being placed in “quasi-judicial” positions where they exercised life or death authority over refugees of color whose humanity and legal rights they refused to recognize, is just a beginning. The ethical, competence, and judicial attitude rot at EOIR goes much deeper.
Garland has been dilatory in “cleaning house” at EOIR. Vulnerable individuals who were wrongly rejected rather than properly protected have needlessly suffered, and probably even died, as a result. Poor Immigration Judging and lack of effective, correct, courageous, positive asylum guidance by the BIA has helped fuel a human rights disaster and rule of law collapse at the border!
Perhaps, at long last, Garland has slowly started fixing the unconscionable and unnecessary dysfunction andintentionally ingrained institutional bias at EOIR. But, I’ll believe it when I see it!
Keep Up The Pressure
In the meantime, it’s critical that NDPA members: 1) keep applying for EOIR judgeships; and 2) ratchet up the pressure and demand the removal of all unqualified Immigration Judges and Appellate Immigration Judges who are undermining sound scholarship, due process, fundamental fairness, and human dignity at EOIR!
Human rights matter! Individual rights matter! Immigrants’ rights matter! Good judges matter!
Today, we are surrounded by too many bad judges, at all levels of our justice system, who reject the first three in favor of warped far-right ideologies, dangerous myths, and disregard for human dignity. The existential battle to get good judges into our system has begun. And, Immigration Courts are the primary theater of action!
Garland’s Dedicated Courts: Deny and deport, deny and deport, deny and deport, deny and deport . . . . .” Creative Commons License
Transactional Records Access Clearinghouse
5,000 Asylum-Seekers Added to the Migrant Protection Protocols 2.0, Few Are Granted Asylum
During the last six months, over 5,000 asylum seekers have been required to remain in Mexico under the current implementation of the Migrant Protection Protocols (MPP)—also known as MPP 2.0—while awaiting their Immigration Court hearings. Cases in MPP are generally being completed within the 180-day time frame set by the administration, but the problem with low rates of access to attorneys and unusually low rates of asylum success that plagued the first implementation of MPP continue this year.
As a result of low representation rates and accelerated hearings, just 27 people out of the 5,100 asylum seekers in MPP 2.0 so far, have received asylum or some other form of relief. These 27 cases account for just 2.4 percent of the 1,109 MPP 2.0 cases which have been completed to date. By contrast, during the same period of FY 2022, fully half of all Immigration Court asylum decisions decided for people inside the United States resulted in a grant of asylum or other relief.
While MPP 1.0 under Trump had also been designed to attempt to expedite processing of these asylum cases, MPP 2.0 is intended to speed case completions even further. Under current guidelines, cases assigned to MPP should be completed within 180 days. The Biden administration has been largely successful in meeting this deadline. During December 2021, a total of 129 asylum seekers were assigned to MPP 2.0, which means that most of these cases are reaching their 180-day deadline now (or soon). For these initial 129 cases, over eight out of ten (81%) were completed at the end of May. Nonetheless, it may be difficult for the Court to maintain this same processing pace as the monthly total of new MPP court filings has steadily grown to over 2,000 in May 2022.
MPP 2.0 cases have not been evenly spread among hearing locations. Cases added to MPP 2.0 in December were primarily heard by the El Paso Immigration Court which received 109 cases. The El Paso MPP court currently has 923 cases assigned to it. By contrast, the MPP Brownsville Immigration Court has now been assigned 2,752 new cases—more than half (54%) of all MPP 2.0 assigned cases as of the end of May. The MPP Laredo, Texas (Port of Entry) Immigration Court has been assigned 404 MPP cases, and an additional 76 cases have been assigned to the Laredo Immigration Court. The MPP Court San Ysidro Port has received 386 cases so far.
It is still early in the implementation of MPP 2.0, and TRAC’s report on MPP 2.0 should be understood as a preliminary analysis However, these findings do raise concerns similar to MPP 1.0. Further detailed analysis will be warranted as more cases are added to the current implementation of the Migrant Protection Protocols.
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:
David Burnham and Susan B. Long, co-directors
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Garland’s performance on EOIR is disgraceful. Question is, what will advocates do about it?
Curiously, going into difficult midterms where every vote supposedly counts, the Biden Administration appears to have decided that they don’t need the support and votes of their base. They might well be following “Miller Lite” or “Miller Genuine” policies of abusing asylum seekers. But, I doubt they will be getting any votes from the “Miller Right!”
An interesting “strategy” to be sure. We’ll see how it works out!
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 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.
CNN: The Supreme Court on Monday ruled that the federal government can continue to detain certain immigrants in removal proceedings without giving them a bond hearing after six months, in case where the Biden administration has prevailed over the immigration activists who opposed the government in the case.
CNN: A federal judge in Texas vacated guidelines set by the Biden administration over who is to be prioritized for immigration enforcement, according to a Friday ruling.
Vox: Justice Clarence Thomas’s majority opinion in Egbert v. Boule, moreover, has implications that stretch far beyond the border. Egbert guts a seminal Supreme Court precedent, Bivens v. Six Unknown Named Agents (1971), which established that federal law enforcement officers who violate the Constitution may be individually sued — and potentially be required to compensate their victims for their illegal actions.
NYT: The agreement, called the Los Angeles Declaration on Migration and Protection, commits the United States to taking 20,000 refugees from Latin America during the next two years, a threefold increase, according to White House officials. Mr. Biden also pledged to increase the number of seasonal worker visas from Central America and Haiti by 11,500.
NYT: The Biden administration expelled nearly 4,000 Haitians on 36 deportation flights in May — a significant increase over the previous three months — after renegotiating agreements with the island nation, which has been crippled by gang violence and an expanding humanitarian crisis.
Intercept_: Immigration and Customs Enforcement searched a massive database of personal information provided by LexisNexis over 1.2 million times in just a seven-month period in 2021, according to documents reviewed by The Intercept. Critics say the staggering search volume confirms fears that the data broker is enabling the mass surveillance and deportation of immigrants.
WaPo: Weeks into the Trump administration’s family-separation policy, immigration officials fired off emails saying something was awry. The children were being reunited too quickly with their parents, an official wrote on a Friday night in late May 2018.
USA Today: Immigrants detained in civil cases face “monumental barriers in finding and communicating with attorneys,” which renders their right to legal representation “essentially meaningless,” according to the report released Thursday.
Law360: U.S. Immigration and Customs Enforcement will take into account whether noncitizens have served in the U.S. military when making decisions about whether to try to deport them, the agency announced Tuesday.
CNN: Without intervention, as many as 200,000 children in the United States risk “aging out” of their parents’ immigration status and face having to enter the immigration system as adults themselves, the companies wrote to Homeland Security Secretary Alejandro Mayorkas.
NPR: In its statement, the Mexican migration agency did not specify what kind of documents were issued but most of the migrants showed papers that gave them a period of one month or more to leave the country or begin regularization procedures in Mexico. Most want to use the documents to reach the U.S. border.
AP: Before that change, Venezuelans had flown to Mexico City or Cancun as tourists and then made their way comfortably to the border. Many made it from home to the U.S. border in as little as four days.
Reuters: The United States on Wednesday moved to lift some Trump-era restrictions on remittances and travel to Cuba even as it fended off criticism for blocking the Communist-run island and long-time foe from attending a regional summit this week.
Law360: The U.S. Supreme Court on Monday ruled that immigrants do not have a right to bond hearings when the government can show they are a flight risk, and that district courts lack the authority to order the government to provide such hearings on a class-wide basis.
Law360: Border agents can’t be sued in federal court for damages over alleged constitutional violations, the U.S. Supreme Court ruled Wednesday, citing concerns that broadening the legal liability of agents could negatively impact national security.
Law360: The Ninth Circuit denied a Honduran man’s bid to stay in the U.S., finding that his conviction in California for possessing a forged social security card with a counterfeit government seal is grounds for deportation as a crime involving moral turpitude.
LexisNexis[The BIA] applied a “presumption” that Petitioner’s conviction was a particularly serious crime and required him to “rebut” this presumption…The BIA committed an error of law, and abused its discretion, in failing to apply the correct legal standards in assessing whether Petitioner’s offense was a “particularly serious crime.”
LexisNexis: The particular social group of “Honduran women” was not at issue in Jaco, however, and the Fifth Circuit’s comment related to this group was incidental to the disposition of the case. Therefore, the Fifth Circuit’s comment regarding “Honduran women” as a particular social group is dicta and is not binding on this Court’s decision.
Law360: A Texas federal judge on Friday threw out the Biden administration’s policy for prioritizing immigration enforcement, saying the guidance ran counter to a legal requirement to detain certain categories of immigrants.
Law360: U.S. Immigration and Customs Enforcement couldn’t shake off claims that it targeted its critics for removal, as a Washington federal judge ruled on Thursday that the Biden administration’s curbs on immigration enforcement operations didn’t moot the retaliation suit.
Law360: A Washington federal judge tossed a negligence claim against the federal government from a father and son seeking $6 million after being forcibly separated at the southern border, saying the pair did not allege the government owed a duty of care.
Law360: The Biden administration is facing yet another lawsuit over its immigration policies at the Southern border, this time from the state of Indiana, alleging that the administration is unlawfully granting parole to migrants and burdening state taxpayers as a result.
Law360: A group of asylum-seekers have hit U.S. Citizenship and Immigration Services with a proposed class action, saying its policies and practices unlawfully prevent them and other asylum applicants from obtaining work authorization pending decisions on their asylum claims.
Law360: The Fourth Circuit has revived a challenge by federal immigration judges to a Trump-era policy barring them from speaking up about the immigration courts, after a labor official formally dissolved their union.
Law360: The National Association of Immigration Judges asked the D.C. Circuit in a petition late Wednesday to overturn the Federal Labor Relations Authority’s 2020 decision that immigration judges cannot unionize, arguing that the FLRA’s order violated its members’ due process rights and protected liberty interest in joining a labor union.
AILA: USCIS updated policy guidance to incorporate changes from the Special Immigrant Juvenile (SIJ) Final Rule, including updated citations, new definitions, and clarifications. The updates apply to SIJ petitions and AOS applications filed or pending on or after 4/7/22.
AILA: CBP announced that users of the CPB One mobile application will be able to select a Spanish-language version of the features that allow them to file applications for or receive electronic versions of I-94s. More information about Form I-94 is available.
AILA: The CDC issued an order rescinding a 17-month-old requirement that people arriving in the country by air test negative for COVID-19, effective at 12:01 am (ET) on Sunday, June 11, 2022, saying it is “not currently necessary.”
AILA: From May 4, 2022, to June 2, 2022, USCIS issued certain I-765 receipt notices with incorrect information. Corrected notices with language confirming the 540-day automatic extension should reach affected applicants by the third week of June.
AILA: DOS announced that the U.S. Embassy Havana will schedule all immediate relative immigrant visa appointments to include spouses and children under 21 of U.S. citizens (IR/CR-1 and IR/CR-2), with interviews beginning in July 2022. More information in notice.
AILA: ICE announced a policy directive to consider U.S. military service when making discretionary determinations with regard to civil immigration enforcement actions against noncitizens.
Law360: The U.S. State Department said it is seeking project ideas from nonprofits and other institutions on how to strengthen its refugee resettlement program in areas such as housing, community engagement and program participation.
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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
It would be hard to imagine an action more out of line with the “LAD” than ramping up deportations of Black migrants to the dangerous, chaotic, failed state of Haiti. As the article from the NYT highlighted by Elizabeth above says:
The situation in Haiti has worsened over the past year. The International Organization for Migration, the largest nongovernmental aid group there, said that there were more than 200 kidnappings in May. Poverty is everywhere, and nearly half the country does not have adequate access to affordable and healthy food, according to the United Nations.
. . . .
In September, the Biden administration gave the organization $13.1 million intended to help Haitians getting off expulsion flights, providing cash and other assistance to help them to reintegrate. Many had been living in other countries in South America for years before making the journey to the United States.
The situation in Haiti has worsened over the past year. The International Organization for Migration, the largest nongovernmental aid group there, said that there were more than 200 kidnappings in May. Poverty is everywhere, and nearly half the country does not have adequate access to affordable and healthy food, according to the United Nations.
. . . .
The systemic issues that drive migration out of Haiti are expected to come up during the Summit of the Americas in Los Angeles this week. Haiti’s interim prime minister, Ariel Henry, is in attendance.
President Biden ran for office promising to bring compassion to U.S. immigration policies, particularly those involving asylum. But rolling out new policies amid a sharp increase in migration and during a pandemic has proved difficult. Some Trump-era policies remain in place.
So, why is the Administration squanderingmoney, resources, and, incredibly, the goodwill of folks who actually voted for Biden/Harris to “ramp up” deportations and exclusions of migrants of color, many of them asylum applicants subject to a biased and unfair system, when we could actually use their skills in our economy, as this quote from an article by Dany Bahar at Brookings points out:
At the same time, 2021 resulted in the highest number of migrants entering or attempting to enter through the southern border to the United States. There is no reason to think this won’t continue in 2022. These migrants, mostly from the Northern Triangle countries (Guatemala, Honduras, and El Salvador), are desperate to join the U.S. labor force, as they flee poor economic conditions—particularly after the economic slowdown caused by the global COVID-19 pandemic—as well as violence and instability in general. In response to this flow, the Biden-Harris administration has focused on significantly
increasing investment toward Central America, including Mexico, while at the same time telling immigrants in Guatemala “
The irony is clear; if there was any time in the modern history of the United States to promote a flexibilization of its migration policies, it is now. It is the most efficient and easiest way to offer a smart solution to the unprecedented tightness in U.S. labor markets. It is a no-brainer for several reasons.
It might be a “no brainer,” as Dany says, but it appears to be “above the pay grade” of Biden’s inept immigration policy team. They seem to be mostly “Stephen Miller fellow travelers.” Why?
I suppose the only “silver lining” is that I can always count on inept policy officials in the Biden Administration to prove my points about what a horrible job they are doing for immigrants, for racial justice, for Due Process of law, for America, and for humanity!
Biden administration defends immigration policy before Sixth Circuit
The federal government argued in defense of a policy instituted by President Biden that prioritizes the deportation of individuals deemed national security threats.
CINCINNATI (CN) — Federal courts cannot impose nationwide injunctions to counteract guidance handed down by the Department of Homeland Security regarding enforcement of federal immigration law, President Joe Biden’s administration argued Friday before an appeals court.
Prioritized deportation of illegal immigrants who “pose the greatest threats to national security, public safety, and border security” is within the scope of DHS’s authority and does not run counter to established immigration law, according to the administration, which was sued by several states after the guidance was implemented in September 2021.
Ohio, Arizona and Montana challenged the “balancing test” adopted as part the guidance, claiming the discretionary nature of the analysis of an immigrant’s mental health and criminal history exceeds the statutory authority granted to DHS and Immigration and Customs Enforcement, or ICE.
U.S. District Judge Michael Newman, a Donald Trump appointee, sided with the states and granted their motion for a preliminary injunction in March 2022, finding federal law “left no flexibility” when it comes to detainment of illegal immigrants during the removal process.
“The permanent guidance allows noncitizens to be released on removal-period and post-removal bond based on factors Congress did not intend DHS to consider and in contrast to DHS’s own regulations,” he said.
Shortly thereafter, a Sixth Circuit panel stayed the injunction pending the outcome of Biden’s appeal.
In its brief to the Cincinnati-based appeals court, the federal government criticized the outlandish nature of the lawsuit and cited Chief U.S. Circuit Judge Jeffrey Sutton when he argued courts have no authority to adjudicate federal immigration policy.
“For most of our nation’s history, a lawsuit like this one would have been unheard of: states did not sue the federal government based on the indirect, downstream effects of federal policies,” the brief states. “And district judges did not purport to enter nationwide injunctions, which ‘take the judicial power beyond its traditionally understood uses,’ ‘incentivize forum shopping,’ and ‘short-circuit’ the judicial process by forcing appellate courts to resolve complex disputes on short notice and without the benefit of percolation or full briefing.”
The Biden administration argued the states lack standing to sue and said Newman’s decision would set a precedent to “allow the federal courts to be drawn into all manner of generalized grievances at the behest of states seeking to secure by court order what they were unable to obtain through the political process.”
. . .
Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, asked about the harm caused to the federal government if the appeals court allowed the injunction to remain in place.
“It certainly leads to confusion,” Tenny answered. “It leads to officers not being able to conduct their operations in a normal course.”
The attorney emphasized the guidance does not run counter to immigration law and requires officers to zero in on dangerous criminals because of the focus on individuals deemed threats to national security.
“It makes you start to think guidance just isn’t reviewable,” Sutton quipped.
Tenny agreed that most guidance is not. He said “there are circumstances … with guidance that requires people to do something where it could be reviewed,” but pointed out such a scenario is “worlds apart from here.”
. . . .
Sutton pushed back against the idea of states challenging the federal government in this fashion, and said in the past, “most people would have laughed at the idea … of states coming in to challenge the guidance.”
“Let’s say you’re right,” the judge said. “I’m still trying to figure out what a victory looks like for you.”
“All that we want,” Flowers answered, “is what the district court did.”
Sutton expressed skepticism of immigration enforcement statistics cited by the states’ attorney and said he was “so dubious about relying on these numbers” because of the Covid-19 pandemic and other factors.
Flowers countered with evidence that ICE officials have gone on the record and claimed the drop in enforcement is based solely on compliance with the guidance.
“Their key theory,” Sutton said, “is that elections matter. That resonates to me when it’s very unclear what the courts could do [in this situation].”
In his rebuttal, Tenny argued no administration has ever fully enforced federal immigration law because there simply aren’t enough resources.
He also disputed the statistics cited by his opposing counsel.
“There is so much going on in the world here,” Tenny said. “To say changes in numbers is because of the guidance is extraordinary.”
U.S. Circuit Judges R. Guy Cole Jr. and Karen Moore, both Bill Clinton appointees, also sat on the panel.
Sutton said the court hopes to adhere to the three-month timeframe established at the outset of the appeal, which would set release of the panel’s opinion for early July.
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Read the complete report at the link.
Way too early for a “Due Process Victory Dance” 💃🏻 here. Oral argument is not always an accurate predictor of results.
But, preliminary indications were that the 6th Cir. panel might have seen through the “disingenuous smokescreen” being thrown up by GOP Nativist State AGs and Trumpster U.S. District Judge Michael Newman. The latter was overeager to inject himself into the legitimate efforts by Mayorkas to return some rationality, order, and fiscal prudence to ICE Enforcement that was reeling and discredited by the biases and uncontrolled excesses of the Trump era.
And, thankfully, Chief Judge Jeffrey Sutton also was skeptical about statistics cited by the States derived from DHS Enforcement. For example, so-called “apprehension statistics” from DHS are often distorted — in part because, as the result of the Title 42 travesty, CBP apprehended some of the same individuals over and over again without any formal determinations.
Indeed, many of those “apprehended” merely soughta legal determination of their right to asylum — something that both the Trump and Biden Administration have stubbornly and illegally denied to them.
Folks who wrongfully are denied a chance to make a legal application for protection at the border and seek to turn themselves in to get some sort of review of their situation in a timely matter are not legitimate “apprehensions” nor do they pose any threat. Indeed, the threat to America here comes from lawless actions by DHS at the Southern Border, attempts by GOP-controlled States to substitute myths and nativism for legitimate policies, and overly permissive Federal Courts who have failed to put a stop to either of the foregoing abuses — indeed sometimes participating in and furthering the mocking of the rule of law and fundamental fairness!
The statements made by Bush II appointee Chief Judge Sutton are actually in line with “traditional conservative judging” that consistently treated Executive exercises of prosecutorial discretion in immigration as beyond the scope of judicial review. In my days in INS General Counsel, we were extremely effective in defending the “hands off PD” position before Federal Judges of all philosophies.
That’s why the Garland DOJ’s failure to “wipe up the floor” with these baseless suits from out of line GOP AGs seeking to turn Federal litigation into a nativist political sideshow is so shocking to those of us who recognize how the system should, and has in the past, worked.
If the 6th Circuit does uphold the “Mayorkas Memo,” we might well be heading for a Circuit conflict. I doubt that the 5th Circuit will exercise meaningful review over Judge Tipton’s power grab in Texas.
That could well leave it up to the Supremes — some time from now.
In the meantime, the ICE Enforcement system probably will continue to reel from the unwarranted interference inflicted by Trump Judges like Tipton, Newman, and some of their righty colleagues.
Ran Abramitzky Professor of Economics and the Senior Associate Dean of the Social Sciences at Stanford University PHOTO: Stanford.eduProfessor Leah Pratt Boustan Economist Princeton University PHOTO: Princeton WebsiteMichael Luca Lee J. Styslinger III Associate Professor of Business Administration Harvard Business School PHOTO: has.edu
The reality is that immigration debates are often driven more by feelings than facts. And there is often disagreement about basic facts — such as how immigration has evolved over time, how successful immigrants become once they enter the United States and how they affect the communities they enter. The problem is, in part, a lack of accessible empirical evidence on the topic.
Enter “Streets of Gold: America’s Untold Story of Immigrant Success,” a book by economic historians Ran Abramitzky and Leah Boustan that seeks to set the record straight, using an economics tool kit and a treasure trove of data. Their mission is twofold. First, to offer a data-driven account of the history of American immigration. Second, to provide guidance into what research suggests about the design of immigration policy.
The book reflects an ongoing renaissance in the field of economic history fueled by technological advances — an increase in digitized records, new techniques to analyze them and the launch of platforms such as Ancestry — that are breathing new life into a range of long-standing questions about immigration. Abramitzky and Boustan are masters of this craft, and they creatively leverage the evolving data landscape to deepen our understanding of the past and present.
In contrast with the rags-to-riches mythology, a more systematic look at the data shows that low-income immigrants do not tend to catch up to nonimmigrant income levels in their lifetimes. Instead, financially successful immigrants tend to come from more privileged backgrounds. To name a few: the authors point out that the father of Tesla chief executive Elon Musk “co-owned an emerald mine.” EBay founder Pierre Omidyar’s “father is a surgeon who worked at Johns Hopkins University,” and his “mother has a PhD in linguistics.” Google co-founder Sergey Brin’s “father is a professor of mathematics,” and his “mother is a NASA scientist.” Looking at how many companies have been led by high-skilled immigrants, I wonder how much more innovation we are missing out on by not further opening our doors to the world’s talent. Yet these are hardly tales of huddled masses.
The case that lower-income and lower-education immigrants also meet with success rests on assessing not only the fates of immigrants themselves but also those of their children and their children’s children. As it turns out, Abramitzky and Boustan write, “children of poor immigrants from nearly every country in the world make it to the middle of the income distribution.” Immigrants from mainland China, Hong Kong and India do especially well.
The book debunks myths that immigrants dramatically increase crime and displace U.S.-born workers. Much of this work focuses on natural experiments in which sudden shocks to immigration levels have allowed for a better understanding of cause and effect. For instance, the authors point to the 1980 Mariel boatlift, which brought an influx of Cuban immigrants to the United States, especially to Miami, virtually overnight. The surge of low-income immigrants did not lead to large spikes in unemployment for U.S.-born workers. Low-skill immigrants have a history of taking jobs that would otherwise be unfilled or filled by machines. As companies around America were rushing to automate operations, the influx of Cuban immigrants to the Miami area slowed this process, and jobs went to people rather than to machines. Compared with the rest of the country, businesses in high-immigration areas have access to more workers and hence less incentive to invest in further automation.
This has implications for today’s immigration debates: The United States is expected to face a dramatic labor market shortage as baby boomers retire and lower birthrates over time result in fewer young people to replace them. Increased immigration is one approach to avoiding the crunch. Notably, the other way to avert this crisis is through further automation, enabled by rapid advances in artificial intelligence. Immigration policy will help shape the extent to which the economy relies on people vs. machines in the decades to come.
Immigration is, of course, about more than economic activity. Part of its beauty is the cultural richness and diversity that it brings. A multicultural society is greater than the sum of its parts. Miami is exciting not because of assimilation but because of the culture that its diverse population has created. It’s a city where you can find croquettes and Cuban coffees as easily as pizza and burgers. There is a rich history of immigrants bringing new cuisines, which are then adopted and adapted throughout the United States, a journey that can be seen in the evolution of Italian American food.
Drawing on the research, Abramitzky and Boustan weigh in on a number of hot-button policy issues: For instance, should the United States focus on encouraging high-education immigration? They conclude that “policies designed to deter less-educated immigrants from entering the United States are misguided.” Discussing the border wall, they argue that “no one wins from the border fencing policies.” And on the 1.5 million undocumented immigrants who arrived as children, they make a full-throated argument in favor of “providing work permits and a path to citizenship,” noting that “the barriers that undocumented children face are stumbling blocks of our own making.” On this last point, it is hard to disagree. Our treatment of undocumented children is a stain on our nation.
In the end, the authors offer an optimistic message: “Immigration contributes to a flourishing American society.” In a rapidly evolving world, Abramitzky and Boustan urge us to take “the long view, acknowledging that upward mobility takes time, and is sometimes measured at the pace of generations, rather than years.”
Read the complete review at the link. It contains Luca’s own family immigration story.
The research highlighted by this book clearly refutes the many negative myths about migrants upon which the Trump GOP’s “campaign of hate and misinformation” is based.
But, unfortunately, I wouldn’t expect truth about immigration — no matter how compelling and well-documented — to change many minds on the far right. As Luca says: “The reality is that immigration debates are often driven more by feelings than facts.” Sadly, hate, fear, racism, resentment, and intolerance are “powerful feelings.”
It’s going to take a combination of political power, courage and talent to exercise it boldly, education, and better values from the upcoming generations of younger Americans to overcome White Nationalism and its pernicious effects. I have to hope that there is time for the “long view” and our “better angels” to win the future.
American Justice takes a grim turn as righty Trump judges take over immigration enforcement! Reaper Image: Hernan Fednan, Creative Commons LicenseCamilo Montoya-Galvez CBS Journalist
Judge voids Biden administration restrictions on immigration arrests and deportations
BY CAMILO MONTOYA-GALVEZ
UPDATED ON: JUNE 11, 2022 / 10:35 AM / CBS NEWS
A federal judge in Texas on Friday granted a request by Republican-led states to throw out Biden administration rules that placed limits on whom federal immigration agents should seek to arrest and deport from the U.S., declaring the directive unlawful.
U.S. District Court Judge Drew Tipton said Homeland Security Secretary Alejandro Mayorkas did not have the authority to issue a September 2021 memo that directed immigration officials to focus on arresting immigrants deemed to threaten public safety or national security and migrants who recently crossed a U.S. border illegally.
Tipton, an appointee of former President Donald Trump, agreed to void Mayorkas’ memo, which was challenged by Republican officials in Texas and Louisiana. But he paused his ruling for seven days to give the Biden administration time to appeal.
Friday’s ruling is the latest setback in federal court for the Biden administration’s immigration agenda, which has faced more than a dozen lawsuits by Texas and other Republican-controlled states.
Federal judges appointed by Mr. Trump have blocked the Biden administration from ending a policy that requires asylum-seekers to wait for their court hearings in Mexico and a pandemic-era measure that allows border officials to quickly expel migrants. Tipton himself halted an 100-day moratorium on deportations during Mr. Biden’s first month in office, as well as an earlier directive that limited immigration arrests.
. . . .
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Read the entire report at the link. Many thanks to Nolan Rappaport, Contributor to The Hill, for sending this my way!
So, righty U.S. District Judges and GOP State AG’s have figured out a way to take over basic immigration enforcement from the Feds. I assume that they will “waive” any claims to immunity from suits against themselves as the inevitable human rights and legal abuses caused by unbridled, uncontrolled, and often irrational and wasteful, DHS Enforcement pile up. These judges and AGs have now become part of the problem. We’ll see how they solve it.
I also find it interesting that righty U.S. District Judges, part of a court system that only just barely manages to keep its head above water because the vast, vast majority of Federal crimes and violations are never fully investigated or prosecuted, have such unbridled enthusiasm for unaccountable, unlimited immigration enforcement.
Part of this right-wing “judicial scam” is to grotesquely exaggerate the “harm” to states and to minimize or ignore the well-documented legal, human rights, and practical problems with “out of control” immigration enforcement that was intentionally used by the Trump regime to “terrorize” ethnic communities. These communities contain “mixed populations” of citizens, legal residents, those living here with legal permission to work, and the undocumented.
I also find it notable that the so-called “plenary power” over immigration appears to have passed from the AWOL Congress and the fumbling Executive, where it historically resided, to the Federal Judiciary, often those serving at the lowest levels —U.S. District Judges, the BIA, and Immigration Judges (although to be fair, the latter two groups are Executive Branch employees operating in a dysfunctional system that often appears to have no rhyme, reason, or defined mission.)
This is an unusual development in the right-wing conservative world of (bogus) “judicial restraint” to be sure. I guess the doctrine of “judicial restraint” is limited to stopping liberal judges from correcting egregious legal mistakes that ruin individual human lives. That’s sure how it looks to me!
The “Tipton Gang” might have a harder time taking over the dysfunctional, out of control, and backlogged Immigration Courts where the results of poor enforcement decisions often go to die in the 1.8 million plus backlog.
The Immigration Courts could prove more of a challenge because Republicans have stuffed the law with various jurisdiction-limiting and jurisdiction-stripping provisions intended to make it difficult or impossible to challenge individual immigration enforcement decisions outside the context of a petition to review a final order of removal in the Courts of Appeals.
Arguing “no jurisdiction/no review” in immigration cases is one thing that DOJ attorneys are very good at and, more often than not, successful.
Otherwise, Garland’s DOJ legal team has been less than stellar at defending changes meant to undo portions of the Trump regime’s misguided, often White Nationalist inspired, anti-immigrant agenda. Perhaps it’s time for the Biden Administration to “reshuffle the deck.” Maybe they should bring in some of the progressive litigation experts who succeeded in blocking some of the worst parts of the Trump-Miller assault on the rule of law and humanity to aggressively defend the job of restoring at least some modicum of due process, fundamental fairness, and rationality to the broken and reeling immigration enforcement system.
Most experts view the Biden Administration’s approach to refugees, asylum, human rights, and racial justice in America as disturbingly short-sighted! Mr. Magoo PHOTO: Gord Webster Creative Commons License
From Human Rights First, June 1, 2022:
Human Rights First yesterday submitted a public comment on the Biden administration’s Interim Final Rule that creates a new process for adjudication of some asylum claims.
Under the rule, asylum seekers who are placed in the expedited removal process and who establish a credible fear of persecution may be assessed in an initial full asylum interview with the U.S. Citizenship and Immigration Services. Cases not granted by the Asylum Office will be referred to immigration court removal proceedings, as will other asylum cases that are not granted by the Asylum Office.
Courtesy Getty
Asylum seekers and U.S. Customs and Border Protection agents at the US-
Mexico border near Yuma, Arizona.
While Human Rights First welcomes some aspects of the rule, we expressed our concern about unreasonably fast deadlines that would sacrifice fairness, thwart efficiency, and exacerbate backlogs. We also oppose provisions that threaten asylum seekers’ right to a full and fair hearing on their asylum claims.
The rule guts a crucial safeguard in the credible fear process: it provides that the new asylum process will be conducted after subjecting asylum seekers to the fundamentally flawed expedited removal process, which has been shown to return refugees to persecution and death.
In our public comment on the rule and a factsheet on its concerning provisions, we have recommended changes to help asylum seekers receive timely, fair, and accurate adjudications.
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The full HRF comment is available at the above link!
As with most Government immigration/civil/human rights programs, a large part of the problem is WHO is making these decisions, WHO is setting precedents, and WHO is overseeing the process and enforcing accountability.
The Biden Administration is still operating EOIR and large portions of the immigration bureaucracy at DHS with Trump-era “holdovers” who were improperly “programmed to deny” asylum.
There is a dearth of positive precedents from the BIA on gender-based asylum and othertypes of common asylum applications at the border that are routinely and wrongfully mishandled and denied.
There are cosmic problems resulting from failure to provide qualified representation of asylum seekers at the border.
Detention continues to be misused as a “deterrent” to legal claims and “punishment” forassertingthem.
Despite “touting” a much larger refugee admissions program beyond the border, the Administration has failed to deliver a robust, realistic, refugee admissions program for Latin America and the Caribbean which would take pressure off the border.
Racism and White Nationalism continue to drivethe Administration’s dramatically inconsistent approach to White refugeesfrom Ukraine compared with refugees of color at the Southern Border.
In plain terms, because of what the Biden Administration hasn’t done over the past 17 months, the new asylum regulations are “programmed for failure.”
