"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
TIJUANA, Mexico (AP) — The United States has sharply increased the number of Ukrainians admitted to the country at the Mexican border as even more refugees fleeing the Russian invasion follow the same circuitous route.
A government recreation center in the Mexican border city of Tijuana grew to about 1,000 refugees Thursday, according to city officials. A canopy under which children played soccer only two days earlier was packed with people in rows of chairs and lined with bunk beds.
Tijuana has suddenly become a final stop for Ukrainians seeking refuge in the United States, where they are drawn by friends and families ready to host them and are convinced the U.S. will be a more suitable haven than Europe.
Word has spread rapidly on social media that a loose volunteer coalition, largely from Slavic churches in the western United States, is guiding hundreds of refugees daily from the Tijuana airport to temporary shelters, where they wait two to four days for U.S officials to admit them on humanitarian parole. In less than two weeks, volunteers worked with U.S. and Mexican officials to build a remarkably efficient and expanding network to provide food, security, transportation and shelter.
Why not begin screening, processing, and admitting these refugees now, rather than creating an unnecessary and artificial rush on May 23?
It would take only modest creativity to invoke legal refugee admission procedures and begin processing of Haitians, Central Americans, Ukrainians, and other refugees directly from camps in Mexico and other countries. That would allow immediate legal admission, thus bypassing both the overloaded Asylum Office and Garland’s dysfunctional Immigration Courts.
Refugee admissions would also facilitate Government grants and other funding for resettlement in communities across America.
Not rocket science!🚀 So, why doesn’t the Biden Administration “get it?” Was VP Harris too busy celebrating the historic, yet largely symbolic, confirmation of soon to be Justice Ketanji Brown Jackson to address the real, life or death problems of immigrants and asylum seekers of color who are being mistreated and abused by White Nationalist programs, policies and “official attitudes” at our borders?
Protection Delayed is Protection Denied:i Factsheet on Title 42 Expulsions, Haitian Asylum Seekers in Tijuana, and the U.S. Government’s Ongoing Evasion of Duty
April 7, 2022
An estimated 10,000 Black migrants, predominantly asylum seekers from Haiti, currently reside in Tijuana where they face discrimination and violence.ii Since the imposition of Title 42, the United States has refused to permit nearly all individuals their legal right to seek asylum and has instead conducted mass expulsions.iii Title 42 has had a particularly devastating impact on Haitians, who have been expelled en masse without being screened for their fear of harm in Haiti despite “obligations under both domestic and international law that prohibit return of individuals to persecution and torture.”iv
Most Haitians arrive in Mexico following a dangerous overland route from Brazil or Chile; these countries took in Haitian nationals in the wake of Haiti’s devastating magnitude 7.0 earthquake in 2010.v The aftermath of the 2010 earthquake remains significant: it claimed between 200,000- 300,000 lives, left over a million people homeless, and set in motion a decade of political instability, impunity, and violence.vi
In July 2021, Haitian President Jovenel Moïse was assassinated.vii In August 2021, another magnitude 7.2 earthquake struck the country.viii A devastating tropical storm followed just two days later. The destruction from the powerful natural disasters overlayed onto the political power vacuum, exacerbating the already dire conditions. 4.3 million Haitians are experiencing acute food insecurity, fuel shortages and blackouts are the norm, and 1.5 million Haitians have been affected by gang violence.ix Complicity between state officials and criminal gangs has been documented, including incidents where “perpetrators raped and tortured residents based on political associations.”x According to Human Rights Watch, “the justice system can barely operate in a context of security and institutional breakdowns” and thus people in Haiti “face a high risk of violence and have no effective access to protection or justice.”xi
The United States recognized the dangers posed to people if they are returned to Haiti and granted an 18-month Temporary Protected Status (TPS) to prevent deportations of any Haitian people already present in the country before July 29, 2021.xii Despite this limited protection, over 20,000 people have been returned to Haiti during the first year of the Biden administration.xiii Many of those expelled had been in a makeshift encampment in Del Rio, Texas in September 2021, where they were denied access to sufficient food, water, and medical care.xiv Many were also subjected to physical violence and intimidation. The last several months have seen expulsions occur unabated with the Department of Homeland Security (DHS) conducting “near daily flights to Haiti.”xv Additional flights of adults and families with babies and young children are scheduled for April. The majority of these returns occur under Title 42, denying individuals the chance to apply for asylum, even if they requested it and face dangers which would qualify them for protection.xvi
1
The information in this factsheet was compiled from interviews conducted from March 7-11, 2022, by a delegation from the University of California, Hastings College of the Law’s Hastings-to-Haiti Partnership (HHP) organization in collaboration with the Center for Gender & Refugee Studies (CGRS), the Haitian Bridge Alliance (HBA), and the École Supérieure Catholique de Droit de Jérémie (ESCDROJ). The delegation interviewed 123 Haitians across six different shelters in Tijuana. Interviewees were asked about why they left Haiti and what they have experienced as Black Kreyol-speakers traveling through Mexico and other Latin American countries.
There is a common misconception that Haitians are “economic migrants” and not refugees entitled to protection. But the stories revealed in these interviews belie such assertions. Haitians face imminent threats to their physical safety, and even death, should they be returned to the country—and face further dangers in Mexico—and they should have the opportunity to claim their legal right to asylum and reunify with family members in the United States.xvii Each day that the Title 42 policy remains in effect, it places Haitians directly in harm’s way.
But, given the extraordinarily poor performance of the Biden Administration on racial justice issues relating to asylum at the border, I’m afraid that the preparation to make the asylum system function in a fair and orderly manner come May 23 is going to fall largely to NGOs and advocates.
Of particularly disturbing note is the Garland DOJ’s total failure to intervene to stop the blatant and illegal racism at our border and to vindicate the rule of law! Indeed, Garland’s failure to reorganize EOIR and hire competent, expert administrators and judges to take charge of his broken, backlogged, and biased asylum system is likely to be a “stone around the neck of justice” as we move forward.
But, expecting the Biden Administration to stand up for racial justice for Haitians and other non-White asylum seekers at the border unfortunately appears to be wishful thinking.
NQRFPT = “Not Quite Ready For Prime Time” — Unfortunately, it’s a more than apt descriptor for the Biden Administration’s overall inept and tone-deaf approach to due process and immigrants’ rights in the beyond dysfunctional and unjust “Immigration Courts” under EOIR @ Garalnd’s DOJ.
Mike LaSusa Legal and Natioanl Security Reporter Law369 PHOTO: Twitter
Influx Of Solo Kids Poses Challenge For Immigration Courts
By Mike LaSusa
Law360 (March 31, 2022, 2:44 PM EDT) — Unaccompanied minors arriving in increasing numbers at the southern U.S. border are likely to face a tough time finding legal representation and navigating an overwhelmed immigration court system that has no special procedures for handling their cases.
The number of unaccompanied children encountered by U.S. Customs and Border Protection has risen sharply over the past year, to an average of more than 10,000 per month, according to CBP data. Those kids’ cases often end up in immigration court, where they are subject to the exact same treatment as adults, no matter their age.
“Nobody really thought of this when the laws were enacted,” said retired Immigration Judge Paul Wickham Schmidt, now an adjunct professor at Georgetown Law. “Everything dealing with kids is kind of an add-on,” he said, referring to special dockets for minors and other initiatives that aren’t expressly laid out in the law but have been tried in various courts over the years.
About a third of the immigration court cases started since October involve people under 18, and of those people, 40% are 4 or under, according to recent statistics from the U.S. Department of Justice’s Executive Office for Immigration Review, which operates the courts.
It’s unclear how many of those cases involve unaccompanied children and how many involve kids with adult relatives, and it’s hard to make historical comparisons because of changes in how the EOIR has tracked data on kids’ cases over the years.
But kids’ cases are indeed making up an increasing share of immigration court dockets, according to Jennifer Podkul, vice president of policy and advocacy for Kids in Need of Defense, or KIND, one of the main providers of legal services for migrant kids in the U.S.
“The cases are taking a lot longer because the backlog has increased so much,” Podkul said. Amid the crush of cases, attorneys can be hard to find.
. . . .
The immigration courts should consider “getting some real juvenile judges who actually understand asylum law and have real special training, not just a few hours of canned training, to deal with kids,” said Schmidt, the former immigration judge.
. . . .
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Those with Law360 access can read Mike’s complete article at the link.
For what seems to be the millionth time with Garland, it’s not “rocket science.”🚀 He should have brought in Jen Podkul, her “boss,” Wendy Young of KIND, or a similar qualified leader from outside Government, to kick tail, roll some heads, clean out the deadwood, and set up a “Juvenile Division” of the Immigration Court staffed with well-qualified “real” judges, experts in asylum law, SIJ status, U & T visas, PD, and due process for vulnerable populations.
Such judicial talent is out there. But, that’s the problem with Garland! The judicial and leadership talent remain largely “out there” while lesser qualified individuals continue to botch cases and screw up the justice system on a regular basis! Actions have consequences; so do inactions and failure to act decisively and courageously.
And, of course, Garland should have replaced the BIA with real judges — progressive practical scholars who wouldn’t tolerate some of the garbage inflicted on kids by the current out of control, undisciplined, “enforcement biased,” anti-immigrant EOIR system.
Instead, Garland employs Miller “restrictionist enforcement guru” Tracy Short as his “Chief Immigration Judge” and another “Miller holdover” David Wetmore as BIA Chair. No immigration expert in America would deem either of these guys capable or qualified to insure due process for kids (or, for that matter anyone else) in Immgration Court.
Yet, more than a year into the Biden Administration, there they are! It’s almost as if Stephen Miller just moved over to DOJ to join his buddy Gene Hamilton in abusing immigrants in Immigration Court. (Technically, Hamilton is gone, but it would be hard to tell from the way Garland and his equally tone-deaf lieutenants have messed up EOIR. Currently, he and Miller are officers of “America First Legal” a neo-fascist group engaged in “aiming to reinstate Trump-era policies that bar unaccompanied migrant children from entering the United States,” according to Wikipedia.)
Meanwhile, the folks with the expertise to solve problems and get the Immigration Courts back on track, like Jen & Wendy, are giving interviews and trying to fix Garland’s ungodly mess from the outside! What’s wrong with this picture? What’s wrong with this Administration?
We’re about to find out! Big time, as Garland’s broken, due-process denying “court” system continues it’s “death spiral,” ☠️ taking lots of kids and other human lives down with it!
For all the world, it looks like the BIA just signed off on a “canned language, rote denial” that had little or nothing to do with the actual record and the arguments raised on appeal. Apparently, as long as the bottom line is to “dismiss” the respondent’s appeal, what goes above it is largely irrelevant to the “Deniers’ Club” that Garland employs as “appellate judges.”
In a system already struggling with a largely self-inflicted backlog of 1.7 million cases, unnecessary remands caused by poor BIA performance are NOT a “no harm, no foul” proposition. Moreover, how in good faith can Garland propose to “expedite” asylum cases at the border when many of his trial judges possess neither the expertise nor the temperament to fairly and efficiently decide asylum claims and the Trump holdover appellate body charged with providing guidance, enforcing best practices, and guaranteeing fairness is itself a major part of the problem? That’s what “designed for disaster” is all about!
Wouldn’t it be refreshing to have an AG who made due process, fundamental fairness, correct results, and careful, “practical scholarly” analysis the touchstone of “his courts” and who cared enough about our justice system to appoint a BIA of real, expert judges — “practical scholars, if you will, of which there are plenty outside of EOIR — capable of focusing on and achieving the foregoing values?
Apparently, in his comfy 5th floor office at DOJ where he thinks great thoughts and does little to achieve them, Garland can’t put himself in the unnecessarily frustrating position of actual human beings and their lawyers who are subjected to EOIR’s incompetent nonsense and “judicial malpractice” on a regular basis! He doesn’t even seem capable of relating to the Courts of Appeals Judges who are constantly called upon to correct fundamental mistakes and clear injustices that Garland ignores and his DOJ attorneys mindlessly defend! Perhaps this “blind spot” is because on the DC Circuit, Garland was absolved from the task of reviewing individual petitions for review emanating from the dysfunctional Immigration Courts that he inherited from his White Nationalist predecessors.
Whatever the reason for his lackadaisical performance, America needs and deserves an AG who takes immigrant justice, racial justice, due process, and equal justice for all seriously!
Two recent news items illustrate the rampant racism at work in the Biden Administration’sIllegal use of the Title 42 charade to eliminate the rule of law at the border:
#VICENews#NewsInitially Rejected by the US, Russians Are Secretly Hustled Over the Border:
Racism runs rampant in immigration enforcement and policy;
Backlogs continue to grow and fester across the immigration system;
Immigration Courts remain dysfunctional, inept, and biased toward DHS Enforcement; and
There is no accountability for anything.
Maybe Trump did win that second term, at least as far as Garland’s DOJ is concerned!
After more than a year of not getting the job done, politicos and some border legislators of both parties are debating whether to continue to violate the law, the Constitution, and human rights of asylum seekers of color because Garland and Mayorkas have failed to get a legal asylum system in place at the border — despite having a number of “blueprints” on how it could successfully be done.
Clearly, there is NO public health justification whatsoever for the continued Title 42 farce — it has become an obvious pretext for violating the law because some politicos think it’s convenient and expedient to do so. Those like Garland, Monaco, Gupta, and Clarke who are supposed to stand up for equal justice, racial justice, the rule of law, and protections for the most vulnerable among us have “taken a dive!”
“Kelly Gonzalez Aguilar is a transgender woman from Honduras. She came to the United States and applied for asylum, withholding of removal, and deferral of removal. In support, Kelly claimed • past persecution in Honduras from her uncle’s abuse, • fear of future persecution from pervasive discrimination and violence against transgender women in Honduras, and • likely torture upon return to Honduras. The immigration judge denied the applications and ordered removal to Honduras. In denying asylum, the immigration judge found no pattern or practice of persecution. Kelly appealed the denial of each application, and the Board of Immigration Appeals dismissed the appeal. The dismissal led Kelly to petition for judicial review. We grant the petition. On the asylum claim, any reasonable adjudicator would be compelled to find a pattern or practice of persecution against transgender women in Honduras.”
Imagine what it would be like if we had an AG with the guts and decency to appoint a BIA of real judges — asylum experts who would adhere to due process and fairly, properly, and consistently interpret asylum laws rather than spewing out specious, life-destroying, bogus denials? Backlogs might even start decreasing!
Remarkably, even the Trump-appointed dissenting Circuit Judge Joel M. Carson concedes that EOIR easily could have decided this case in favor for the respondent and perhaps should have.
No doubt a person could view the record before us differently—the majority does so today—and I might on de novo review.
He then willingly gets lost in a forest of bogus reasons for abusing “standards of review” as an excuse for Article III Judges to avoid responsibility for life-threatening miscarriages of justice.
In stark terms, a reasonable judge could have saved this respondent and probably should have. But, this IJ and the BIA chose not to. So, who cares because it’s only a brown-skinned asylum seeker whose life is so insignificant that we should relegate it to the realm of chance and happenstance. Next case, please!
Asylum law, according to the Supremes in Cardoza-Fonseca is supposed to be interpreted generously in favor of protection. If legal protection from persecution or death is one possible outcome, it should be the the only acceptable outcome! Saying that some humans should potentially die while others be protected basically depending on a Federal Judge’s personal philosophy and mood on a particular day isn’t just legally wrong and a denial of due process and equal protection — it’s immoral!
The point is obvious. Better qualified judges at the BIA would put an end to this treatment of life or death decisions as a “crap shoot” — dependent on which IJ is drawn, the composition of the BIA “panel,” the Federal Circuit in which the case arises, the “luck of the draw” on the Circuit panel, and probably the “day of the week.” This is no way to run a justice system. And, Garland and his complicit lieutenants know that!
A better AG would long ago have installed a better BIA. It’s classic “Refugee Roulette” ☠️⚰️ being promoted by a Dem Administration! Instead of putting an end to this disgraceful “intellectual game of chance with human lives” being played by ivory tower bureaucrats and judges who have “immunized” themselves from the traumatic real life consequences of their bad decisions, Garland has chosen to “play along”
When he’s not carrying out Stephen Miller’s anti-asylum policies @ EOIR with Miller’s holdover acolytesas “judges” and “senior executives,” Garland is busy helping Trump and his fellow GOP insurrectionists “run out the clock” on the House Jan. 6 Panel!
“Students in the Immigration and Human Rights Clinic (IHRC) worked to obtain asylum for a voting rights activist from Nigeria. This case prompted the Clinic to develop a resource to assist asylees in understanding their rights.
The clinic took on the case of a Nigerian woman, Chioma*, who had been active in organizing women and youth in the Delta region to vote against corrupt political candidates. She drew crowds of women and youth as an effective organizer, simultaneously drawing the ire of incumbent politicians. Armed thugs targeted Chioma in her home in 2019, resulting in her hospitalization. Refusing to back down, she later attended a political event where she narrowly escaped an assassination attempt. Deciding she would rather stay alive for her children – even if far away – Chioma fled to the U.S. and left her family behind.
Clinic students Forrest Lindelof and Chizoba Kagha, both 3Ls, picked up Chioma’s case in the fall semester and worked under the supervision of Associate Dean of Clinical and Experiential Programs Lindsay M. Harris to complete her declaration, a detailed narrative of what she had endured in Nigeria and what she feared. The students crafted a legal brief with supporting evidence they obtained through working with a country conditions expert, a therapist and a medical doctor. The legal arguments were challenging because of the client’s dual citizenship in Cameroon and Nigeria; they needed to argue she would face persecution in both nations. The students had to become experts in the complex political dynamics at play in both countries, along with the citizenship laws.
This case also hit close to home for both students. Kagha shared, “I am the daughter of Nigerian immigrants who relocated to the United States in hopes of a better opportunity for their future children. When we began working with our client, I immediately felt a connection to her.”
As well, Lindelof related the client’s story to that of his immigrant mother. “As the son of an immigrant, it was not difficult to imagine my mother experiencing similar maltreatment and vulnerability. We worked that much harder, knowing that our work would have a meaningful impact on our client and her future.”
Moreover, the students got to know their client and were inspired by Chioma’s strength, resilience and personality. Lindelof described her as “jolly and good-humored” and the case as “a great source of pride.” Kagha added, “Her personality lit up a room, and her passion for helping others was inspiring.”
After working diligently with the client to prepare for the asylum interview, the students accompanied her to the asylum interview in November. After extensive questioning, Kagha delivered the closing statement, drawing together all the key issues in the case.
In January, Lindelof, Kagha and Harris received word that Chioma’s asylum application had been approved. The client was ecstatic, as was the UDC Law team. “To be able to sit in the asylum office as a Nigerian female student attorney delivering the closing statement for a Nigerian female client is a moment I will cherish for the rest of my life,” said Kagha.
Chioma was eager to be reunited with her spouse and children as soon as possible, but she was worried about accessing the asylee benefits to which she is entitled. Dean Harris has written about these benefits in depth in a 2016 article, From Surviving to Thriving: An Examination of Asylee Integration in the United States. Due to Chioma’s questions and concerns about her accessing public benefits rendering her a “public charge,” Dean Harris brought on 1L Clinical Associate Kendra Li to create a helpful one-page resource, Asylum and Public Charge. This resource clearly explains that asylees like Chioma are exempt from the public charge bar to adjustment of status to become a lawful permanent resident and eventually U.S. citizen.
“The best way to master a subject is to teach it to someone else,” Li said of developing the resource. “The public charge rule isn’t a complicated topic, but the process of researching it and distilling that research into a digestible and accessible product really cemented the learning.”
The document answers questions common for Chioma and other asylees. Li explained the need for creating this resource to answer these questions not only for the client in this case but countless other asylees. “Even though the Trump administration’s attempt to expand the public charge rule couldn’t, by law, apply to asylum seekers, it unsurprisingly – and perhaps deliberately – created a chilling effect well beyond the categories of immigrants it actually impacted,” Li said. “Our country is stronger and more just when the public benefits we provide reach all the people they’re meant to lift up, so it’s important to get the right information out there.”
Lindelof, under Harris’s supervision, quickly filed petitions to bring Chioma’s children and spouse to the United States and is now working to expedite those requests. Since Chioma was forced to flee Nigeria in 2019, thugs hired by political actors have targeted her husband at least five times, searching for Chioma and her whereabouts. The Clinic will stand by Chioma and her family throughout the lengthy process of family reunification and consular processing at the U.S. embassy in Nigeria. In the meantime, Chioma hopes to reengage in organizing and contribute to her community in the United States.
All three students reflected on how this case and their time engaging with the Immigration and Human Rights Clinic have enriched their legal education and helped them prepare for their careers.
“It is tough to express how meaningful my clinic experience was at UDC Law,” Lindelof said. “I came to law school with a background in psychology, having done a lot of fulfilling work with children with disabilities and individuals who suffered from addiction. I had not quite felt that same sense of fulfillment until my time at the Immigration and Human Rights Clinic. It renewed my passion for the law.”
Li “came to law school to practice immigration law and chose UDC for its clinical program.” She added, “I’m very appreciative to be involved as a 1L. This was a great first-year project. If this one pager helps just one person, it’ll have been well worth the effort.”
Kagha chose to attend UDC Law because of her “desire to positively impact the lives of others, especially people who look like me. To be able to sit in the asylum office as a Nigerian female student attorney delivering the closing statement for a Nigerian female client is a moment I will cherish for the rest of my life.”
Lindelof added praise for Dean Harris and the ways in which working with her have helped him narrow down his post-law school path. “Working with a supervisor with such tremendous drive and passion was infectious. Dean Harris did a great job tying the clinic’s content to racial justice and deficiencies in the justice system, which impacted my philosophy about the law and my general outlook on the world. It also drove me to seek out a career in immigration. I am humbled at the opportunity that I will be working for the D.C. Affordable Law Firm and practicing hopefully both family law and immigration next year, which happen to be the clinics I was a part of at UDC.”
*Name changed to preserve anonymity.”
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Congrats to my friend Dean Harris and her terrific students on saving another life in a system that often eats up humanity without much regard for justice.
This case is a prime example of why “expedited” asylum calendars are a bad idea that 1) impedes effective preparation and representation by attorneys; 2) underestimates the complexity of many asylum cases, particularly under today’s skewed, often hyper technical, anti-asylum framework established and promoted by the BIA; 3) violates due process and best practices by encouraging judges to focus on speed and artificial time limits, rather than using careful scholarship along with fair and careful procedures to achieve correct results.
This also shows the extreme harm caused by the Trump-Miller White Nationalist “public charge sham” and the damage to the integrity of our justice system of a intellectually dishonest, imperious GOP Supremes’ majority who enabled Trump’s cruelty and evil nonsense to corrupt justice in America. (The Supremes had improperly lifted a correct nationwide injunction against the Trump Administration’s scofflaw scheme, before the Biden Administration finally was allowed to withdraw the case from the Court.)
It’s also interesting that the task of “setting the record straight” on the chilling effects of the former Trump policy fell to Dean Harris and the IHRC. In a more functional and just system, one might envision such public information efforts being undertaken by the Government!
Additionally, Dean Harris directly ties the meltdown and systemic unfairness of our Immigration Courts to the overall problems of racism and lack of equal justice in our country. That’s a lesson that could profit AG Garland and his lieutenants who so far have mostly pretended that the dysfunctional, biased, and broken Immigration Courts exist in a bubble beyond the other problems facing our democracy. There will be no equal justice in American without equal justice for immigrants!
The portrayal and treatment of Ukrainians fleeing war and of Haitian, Central American and Mexican asylum seekers also fleeing deadly violence could not be more different
By Nikolái Ingistov-García
. . . .
Over the course of that weekend, I watched how the Ukrainian refugee crisis grew day by day. I read that Airbnb was paying for thousands of refugees to stay in their rooms. Thousands of Europeans in dozens of countries opened their doors to Ukrainians. I was encouraged but bothered at the same time. Media outlets all over the world from the left, right and center praised the courage of these refugees, and some reporters called them heroes.
An overwhelming majority of my students in my classes at UCR are Latino. Several of them are refugees from Latin America, and a few are “Dreamers.” I asked if any of them noticed anything with this growing refugee crisis in Eastern Europe, and several were quick to point out the double standard.
A few weeks before Putin’s invasion of Ukraine started, my class watched interviews about the forced sterilization of Latina refugees at an immigration detention center in Georgia. We discussed the Latino children fleeing Honduras, El Salvador and Guatemala who are being held in U.S. Immigration and Custom Enforcement detention centers to this day. The double standard in the me-dia’s portrayal of the Ukrainian refugees in Europe compared with the images of Haitian, Central American and Mexican migrants at the Mexican border was obvious to everyone in my class.
I thought about the tens of thousands of refugees fleeing Ukraine and the tens of thousands of refugees who have had to flee their homes in Central America, Mexico and other parts of Latin America because of wars, dictatorships, gang warfare and cartel terrorism. Refugees and migrants who are uprooted from their homes all go through trauma whether they come from Latinoamérica or Eastern Europe.
The images of people fleeing Ukraine shook me as I remembered my family’s histories from Ukraine and Mexico, with both sides leaving their homelands for a better life.
. . . .
Ukraine and Mexico came together to form my family in the borderland of Los Angeles. My Chicano-Mexican-Russian-Ukrainian border-crossing identity hurts as I watch Putin’s war unfold while more waves of Latin American and, very recently, Ukrainian refugees arrive at the Tijuana-U.S. border. My hope is that out of this tragedy, future refugees that come to the Mexican border, whether they are from Honduras or Ukraine, are treated with equal dignity — which all of them deserve.
Nikolái Ingistov-García is a lecturer in Spanish languageand Latin American Studies at UC Riverside.
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Ukrainian refugees are “courageous heroes.” Meanwhile, equally brave and deserving refugees of color from Haiti, Latin America, and Africa are dehumanized, degraded, and removed to potential death or danger without a thought and in violation of law.
They are often called by the misnomer “illegal migrants” — or worse! Ironically, however, the refugees arriving at Southern Border, even if not “invited,” are exercising internationally and domestically recognized legal rights to apply for asylum and other legal protections from involuntary return, some mandatory!
Of course, as intelligent humans, they don’t wait in vain or line up for “imaginary invitations” that will never come! We have no viable refugee programs for Haiti, Africa, and Latin America. Indeed, after four years of Trump and one of Biden we barely have any refugee programs anywhere! Even worse, we have immorally and illegally closed legal ports of entry to asylum seekers. So, having left refugees no viable legal avenues for seeking refuge in the U.S., a right guaranteed by both statute and international convention, we dehumanize and degrade them for using the only “self-help” methods available! Talk about chutzpah!
It’s actually folks like Vice President Harris, Secretary Mayorkas, AG Garland, and his band of scofflaw lawyers at the DOJ who are the “illegals” in this scenario. The Biden Administration is hardly the first to turn refugee and asylum laws as well as the Due Process and Equal Protection Clauses of our Constitution on their heads.
The Trump regime gloried in violating the law and mistreating refugees simply for the cruelty, racism, and hate involved. Shockingly, with a some exceptions, life-tenured Federal Judges gave them a pass — particularly at the Supremes which developed their own “special double standard” to dehumanize and “Dred Scottify” immigrants of color!
The Biden Administration sweeps their own gross misconduct and racially charged “double standards” under the rug! Under Garland, the DOJ has “gone along to get along” and even disgracefully defended illegal, immoral, and deadly removals without any process at all. In doing so, they have advanced some of the same discredited myths and disingenuous pretexts developed by Miller, Sessions, Barr and the Jim Crow White Nationalist nativists!
The “mainstream media” give excruciatingly detailed coverage of the humanitarian plight of Ukrainian refugees. Meanwhile, the similar humanitarian plight of vulnerable equally deserving refugees of color, like Ukrainians many of them desperate women and children, gets little coverage outside of a few specialized reporters.
Of course, beyond the rhetoric, the Biden Administration has actually done very little to help even Ukrainian refugees beyond hollow expressions of sympathy and using them as “props” in the “war of words” with Putin. Leadership is a combination of rhetoric backed with action!
Our refugee and asylum systems are in shambles, without the leadership and expertise in place to respond to either predictable refugee flows or humanitarian catastrophes in a practical and effective way. That needs to end! But, unfortunately, its hard to see the current, spineless (non) leadership from Harris, Mayorkas, Garland, and others in this Administration getting the job done!
Although most senior Biden Administration officials work hard to avoid the border and confronting scenes like this, trauma, death, destruction, and dehumanization of the world’s most vulnerable will remain as indelible parts of their toxic legacies. “Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)Carrying on and defending this guy’s cruel, inhuman, deadly, dishonest, and illegal policies wasn’t part of the Biden-Harris campaign pledge. Or was it? Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
“For two years, the U.S. government has illegally blocked and expelled people seeking refuge at the southern U.S. border despite U.S. laws and treaties created to protect them. Since March 20, 2020, the U.S. Department of Homeland Security (DHS) has used orders from the Centers for Disease Control and Prevention (CDC), purportedly issued under Title 42 of U.S. law, to prevent asylum seekers from requesting U.S. asylum and returning thousands to persecution, torture, and other horrific violence. In March 2022, the U.S. Court of Appeals for the D.C. Circuit found that the use of Title 42 to expel people to places where they would face persecution or torture is likely illegal, violating U.S. refugee laws and international treaty obligations.
The grave human rights abuses faced by people turned away under Title 42 continue to mount every day that U.S. officials allow this policy’s use to evade refugee law. Human Rights First has now tracked at least 9,886 kidnappings, torture, rape, and other violent attacks on people blocked in or expelled to Mexico due to the Title 42 policy under the Biden administration – a new record of suffering.
Flouting refugee protection laws as a response to the COVID-19 pandemic is not and never was justified as a public health measure. Initially issued by the CDC under orders from senior Trump administration officials and despite objections by CDC experts, the Biden administration has continued the policy for migration policy and/or political reasons, according to various reports. CDC Director Dr. Rochelle Walensky re-issued a new version of the Title 42 order in August 2021, and has subsequently repeatedly extended it. The CDC must review whether to continue, modify, or end the Title 42 order by March 30, 2022.
Epidemiologists and medical experts have exhaustivelyestablished that Title 42 does not protect public health, and in fact exacerbates the spread of COVID-19. The claimed public health justification for the Title 42 order has become even more transparently unjustified as the administration lifts other pandemic-related international travel restrictions and with mask mandates lifted in all 50 U.S. states. In March 2022, the CDC partially terminated the Title 42 order as to unaccompanied children following a federal court ruling that would have compelled the resumption of expulsions of unaccompanied children. In a notice explaining the decision, the CDC cited declining COVID-19 cases nationwide, including in communities along the U.S.-Mexico border, increased vaccination rates in the United States and countries of origin, and widespread availability of COVID-19 testing and other mitigation measures at facilities receiving migrants. Despite these factors applying equally to all people seeking refuge in the United States, the CDC has so far disingenuously maintained the Title 42 order to expel families and adults.
At this shameful second anniversary of the Title 42 policy, the Biden administration continues to illegally turn away asylum seekers without access to the U.S. asylum system. It is carrying out dangerous expulsions to countries refugees have fled, including: El Salvador, Guatemala, Haiti, Honduras, and Mexico, as well as expelling some Venezuelans to Colombia. The Title 42 policy discriminatorily targets Haitian and other Black asylum seekers, spurs disorder at the border, undermines security, and separates families. While some Ukrainians fleeing the Russian invasion have been allowed to cross into the United States at southern border ports of entry, Customs and Border Protection (CBP) continues to cite Title 42 to illegally block others and to discriminatorily turn away many asylum seekers of other nationalities and races who have often been waiting for months or years in danger in Mexico to seek U.S. asylum protection.
The Biden administration must immediately end this disastrous policy and restart the asylum processes required under U.S. law along the border, including at ports of entry, as Human Rights First has recommended. In recent weeks, dozens of members of Congress have publicly called for an end to the Title 42 policy with Senate leadership condemning the Biden administration’s decision to continuing sending asylum seekers “back to persecution and torture” as “wrong.” The United States has the capacity to welcome people seeking refuge. Many faith- and community-based organizations along the border and throughout the United States are standing by ready to assist the families, adults, and children seeking refuge.
How will Harris, Mayorkas, Garland, Walenksy, and other senior Biden Administration officials who have spinelessly furthered these inexcusable, illegal, abusive, and deadly anti-humanitarian policies deal with their toxic legacies? Also, Deputy AG Lisa Monaco, Associate AG Vanita Gupta, SG Liz Prelogar, and Assistant AG for Civil Rights Kristen Clarke stand out as irresponsible, “look the other way,” fundamentally flawed public officials who have failed to “rise to the occasion” in the time of democracy’s and humanity’s greatest needs! Carrying out “Miller Lite,” Jim Crow, xenophobic, racially targeted policies, often endorsing false narratives and using obvious pretexts, directed against some of the world’s most courageous, vulnerable humans, deserving of humane treatment and fair access to refuge, is “NOT OK!”
Perhaps the most telling observation about our exercise in national failure is this:
The United States has the capacity to welcome people seeking refuge. Many faith- and community-based organizations along the border and throughout the United States are standing by ready to assist the families, adults, and children seeking refuge.
It’s not rocket science! All it would have taken to get his right would be some political courage and empowering those with the skills and vision to change the way we treat refugees, asylees, and other immigrants!
“The USCIS Contact Center purports to provide tools for checking case statuses online, correcting notices that contain mistakes or were never delivered, and connecting applicants to a representative for live support. However, the Contact Center is more often a source of frustration than assistance. We outline some of our firm’s experiences with the Contact Center, and provide suggestions for improving its services.
One common set of issues occurs when an attorney attempts to place a call or e-request on behalf of a client. USCIS refuses to speak with even the managing attorney of the firm if a different attorney has submitted a Form G-28. Difficulties arise when the attorney of record has departed the firm or is otherwise unavailable, and other attorneys are then unable to utilize the Contact Center to assist a client. Even when the alternate attorney on the case submits a Form G-28, the Contact Center often is unable to track the submission of a new Form G-28 and refuses to speak with the alternate attorney. In some instances, USCIS will speak with an alternate attorney if the client is also on the call. This arrangement, however, defeats the purpose of a Form G-28 by forcing the client verbally give permission for representation over the phone, and is highly inconvenient when an attorney cannot be physically in the room with a client or arrange a conference call.
Additionally, USCIS only allows certain interested parties to a case to utilize the Contact Center to make queries. Only the petitioner or an attorney/accredited representative can submit e-requests in connection with a Form I-129 or I-140 petition, for example. USCIS will not respond to requests placed by the beneficiary of such petitions, although the beneficiary may be more sensitive to delayed receipt notices or misspelling on approval notices, and in a better position to raise these issues to USCIS than the employer.
Further, the USCIS Contact Center is not always responsive to requests, even when they are placed by a recognized party. Our office has observed instances of receipt notices that contain errors failing to get corrected, even after multiples calls and e-requests from the attorney of record. When USCIS does not timely rectify errors of this kind and issues an approval notice still containing a misspelling, applicants are forced to file a Form I-824 and pay the considerable $465 filing fee to seek a correction. The processing time for an I-824 ranges from a few months to upwards of 24 months.
Delays in processing applications have become endemic. Applicants do not get an employment authorization document issued in time and can lose their job. Also, obtaining advance parole to travel takes several months. One can use the USCIS Contact Center to make an expedite request under its articulated criteria. Unfortunately, most expedited requests get denied even though they fit the criteria
The problems with the USCIS Contact Center have widely been observed. On February 28, 2022, 47 members of Congress wrote a letter to DHS urging it to make improvements to the Contact Center. See AILA, Forty-Seven Members of Congress Urge DHS to Make Improvements to USCIS Contact Center, AILA Doc. No. 22030300 (Feb. 28, 2022), https://www.aila.org/infonet/urging-dhs-to-make-improvements-to-uscis-contact. Among the improvements suggested by the members of Congress were providing accurate and accommodating callback windows for customers submitting requests through InfoMod, allowing law firm staff other than the attorney of record to make requests through the Contact Center, making the criteria used to grant appointments through InfoMod public, and offering walk-in availability for emergency requests at local USCIS offices.
Notwithstanding its shortcomings, the USCIS Contact Center has facilitated positive outcomes for some individuals. The USCIS 800 number has been helpful in getting corrected notices sent to applicants, or in this firm’s experience, ensuring that beneficiaries to an approved I-140 receive copies of Notices of Intent to Revoke under Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017).”
Asylum attorneys have been facing a longstanding mental health crisis. The pandemic, sweeping regulatory changes, and uncertainty created deeper dimensions of stress in an already chaotic immigration system. To address this crisis, in 2020, Professors Lindsay Harris and Hillary Mellinger surveyed over 700 immigration attorneys utilizing the National Asylum Attorney Burnout and Secondary Traumatic Stress Survey. Their groundbreaking study found that asylum attorneys displayed symptoms of burnout and Secondary Traumatic Stress (STS) at rates higher than immigration judges, social workers, hospital doctors, nurses, and prison wardens. Asylum attorneys reported burnout symptoms including not only depression, but boredom, cynicism, discouragement, and a loss of compassion. Notably, STS symptoms mirror Post-Traumatic Stress Disorder which include intrusive thoughts, traumatic nightmares, insomnia, chronic irritability, fatigue, trouble concentrating, and hypervigilance.
The ABA has a longstanding commitment to address and identify resources to ameliorate attorney well-being and mental health. While strides have been made, this panel seeks to build upon the study to facilitate a normative shift away from old mental health paradigms to a culture of openly discussing burnout and secondary trauma within law school settings, non-profits, government agencies, and law firms.
This webinar, moderated by Deena Sharuk, Senior Legal Advisor to the ABA Commission on Immigration (COI), along with experts Law Professor Lindsay Harris, Criminal Justice and Criminology Professor Hillary Mellinger, ABA COI Senior Staff Attorney Eloy Gardea, and Leora Hudak from Center for Victims of Torture will discuss the implications of the survey’s findings on lawyers, their clients, and the immigration system. The panelists will discuss concrete ways to shift the norms in the legal profession on an individual and institutional level for attorneys to build sustainable careers in this field.
Time: Apr 7, 2022 03:00 PM in Eastern Time (US and Canada)
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Of course, USCIS isn’t the only part of the dysfunctional immigration bureaucracy taking a toll on the heath of practitioners and their clients.
Over at EOIR, poor leadership, overly bureaucratized management, “Aimless Docket Reshuffling,” mindless enforcement “gimmicks,” a “Miller Lite” BIA, poor judicial selections by the Trump regime unaddressed by Garland, anti-immigrant/anti-asylum seeker “culture,” disdain for due process, disregard for best practices, endless largely self-generated backlogs, and lack of transparency continue to plague the system and torment advocates.
Unlike DOJ and EOIR, the ABA Panel conducting this webinar is made up of true subject matter experts and all-star practical scholars.
Deena Sharuk Senior Advisor ABA Commission on ImmigrationProfessor Lindsay Muir Harris UDC LawDr. Hillary Mellinger Assistant Professor Department of Criminal Justice and Criminology Washington State University PHOTO: WSUEloy Gardea Senior Staff Attorney ABA Commission on Immigration PHOTO: FacebookLeora Hudak Program Manager Center for Victims of Torture PHOTO: Linkedin
For the last year, “Courtside” has been ripping the incredibly poor, timid, stunning lack of vision leadership, expertise, common sense, and morality in the Biden Administration’s failure to restore and expand a robust overseas refugee program and to enforce the rule of law and due process in our asylum system at the border and in the US. Even as I write this, Garland’s failed BIA, with too many Trump restrictionist holdover judges, continues to crank out bad asylum precedents and anti-immigrant legally incorrect appellate decisions and precedents.
DOJ mindlessly continues to advance and defend the indefensible in Federal Court. It’s “Miller Lite” on steroids! Squandering taxpayer money, wasting scarce pro bono resources, and worst of all, endangering human lives!
This guy has to be thrilled with Garland’s approach to human rights, racial justice, and due process @ DOJ! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
Essential human rights issues like providing definitive, generous, positive guidance to move gender-based asylum cases through the system, correcting “intentionally overly restrictive” and ridiculously hyper-technical, legally wrong, highly impractical applications of supposedly “generous” asylum laws, lack of common sense, expertise, understanding, and humanity remain endemic in Garland’s broken “court” system and the USCIS Asylum Offices which are supposed to be under their legal guidance.
The border effectively remains illegally and irrationally closed to refugees seeking asylum! Absurdly, the decisions as to who lives and who dies are left to the unfettered, unreviewable, “discretion” of Border Patrol Agents who are glaringly unqualified to make them. There aren’t even any known criteria in effect!
Indeed, that’s the precise reason why Congress created Asylum Officers and put them and Immigration Judges into the life or death asylum screening process, only to have Trump abrogate the law as Federal Courts meekly and fecklessly stood by! Hardly America’s finest moment!
There is plenty of irresponsibility to go around! But, dilatory “What Me Worry” AG Merrick Garland and his feckless lieutenants Lisa Monaco, Vanita Gupta, Kristen Clarke, and Liz Prelogar, along with DHS Secretary Alejandro Mayorkas, deserve “special censure” for the brewing, unnecessarily out of control humanitarian and equal justice crisis!
Garland’s tone-deaf approach to human rights and the rule of law now threatens the international order and the lives of perhaps millions of refugees and asylum seekers! PHOTO: Wikipedia Commons
The Biden administration’s immigration policy to date has been shambling. It can now do one big thing right: step up, grant humanitarian parole and help resettle Ukrainian refugees.
Catherine Rampell Opinion Columnist Washington Post
Trump’s xenophobic policies had consequences beyond the cruelty inflicted while he was in office. Ultimately, they hobbled our ability to provide aid during a humanitarian catastrophe and thereby protect our own national security interests. Now, Biden must not only respond to the current crisis but also repair our institutions so that we have greater capacity to deal with future ones.
I’m sure traumatized Ukrainians and Russian dissidents being improperly turned back at our border were comforted by the following tone-deaf blather from Mayorkas as reported by Deepa Fernandes in the SF Chron:
Deepa Fernandes Immigration Reporter SF Chronicle PHOTO: SF Chron
On Thursday, Homeland Security Secretary Alejandro N. Mayorkas told reporters that Border Patrol agents were reminded they have some leeway with regard to enforcing Title 42, particularly when it comes to those fleeing the crisis in Ukraine, BuzzFeed News reported.
“This was policy guidance that reminded (border officers) of those individualized determinations and their applicability to Ukrainian nationals as they apply to everyone else,” the online news outlet quoted Mayorkas as telling reporters.
Come on, man! You’ve got to be kidding me!
Belatedly, it appears that the Biden Administration is now “considering” restoring the rule of law at the borders (something they actually promised during the election), according toAlexandra Meeks over at CNN:
ALexandra Meeks Current News Reporter CNN PHOTO: Linkedin
The Biden administration is preparing for the potential of mass migration to the US-Mexico border when a Trump-era pandemic emergency rule ends. The influx is expected because officials are considering the possibility of terminating a public health order known as Title 42, which border authorities have relied on to turn away migrants, sources familiar with the discussions said. Internal documents, first reported by Axios, estimate around 170,000 people may be coming to the US border and some 25,000 migrants are already in shelters in Mexico. The Department of Homeland Security has asked department personnel to volunteer at the Mexico border in response.
But, it’s not clear that they have any real plan in mind. That’s certainly the case in Garland’s dysfunctional, astoundingly backlogged (1.6 million known cases) Immigration “Courts” led by a Trump restrictionist BIA. “Gauleiter” Stephen Miller must evilly chuckle every morning at how Garland has left his “designed for White Nationalism” system largely in place and continuing to shaft and screw asylum seekers on a daily basis.
And, no, 170,000 migrants arriving at the border, not all of whom are seeking asylum, isn’t a “mass migration” emergency! It’s a fairly predictable movement of migrants at a pace that should be well within the capabilities of our nation.
Treat them with respect. Promptly and properly screen them with qualified Asylum Officers. Timely welcome those many who qualify for protection with competent expert Immigration Judges. End the anti-asylum nonsense and move the many grantable asylum, withholding, and CAT cases through the system. Develop humane, orderly responses for those who are rejected. Get in place a new BIA that understands asylum law, due process, and human rights. Empower them to “knock heads” of IJs and Asylum Officers who won’t let go of the White Nationalist “reject, don’t protect” program!”
It’s not “rocket science.” 🚀 Not by a long shot!
No, an “emergency mass migration situation” is 3.2 million refugees fleeing war in Ukraine in three weeks and arriving in allied nations like Poland, Romania, and Moldova who have far fewer resources and ability to respond than the U.S.! These are also nations who legitimately fear that they could be next on Russia’s “hit list.”
And, while the humanitarian crisis is brewing, what’s Garland up to? He beefing up his already-record-setting Immigration Court backlog with “kiddie cases” (0-4 year olds, incredibly) — to the extent anyone can even figure it out, given his notoriously flawed and unprofessional record keeping at EOIR. See, e.g., https://trac.syr.edu/immigration/reports/681/.
Garland and his top lieutenants are too busy filling the Immigration Courts with these desperados in the 0-4 age group to worry about restoring due process or treating asylum seekers fairly! PHOTO: Sean Choe, Creative Commons License
Honestly! But, don’t say that “Courtside,” Jeffrey Chase Blog, Dan Kowalski, ImmigrationProf Blog, CGRS, Human Rights First, NIJC, AILA, KIND, NCIJ, ABA, and many other experts didn’t warn against this grotesque failure long ago — often predating the 2020 election!
I understand that “no fly zones” are more complicated than most American pols and media wags think and that there are challenges to waging war from afar without actually declaring war on Russia. But, repairing our refugee, asylum, and immigration systems, and restoring due process to our courts are not in this category of difficulty.
It’s beyond time for the Biden Administration, particularly Mayorkas and Garland, to get the lead out, grow backbones, get rid of the remnants of Trumpism in their ranks— personnel, substance, process — and run a refugee and asylum legal system that serves our and our allies’ needs. One that is values and law based! One that our nation can be proud of, rather than embarrassed before the world! End the Clown Show, in Falls Church and throughout our muddling immigration and (non) human rights bureaucracy!🤡
The Garland/Mayorkas “Plan” for human rights and immigrant justice is proving as deadly as it is dysfunctional. PHOTO: Thomas Hawk Creative Commons Amateur Night
Time’s a wasting and people are dying! ⚰️ Enough of “Amateur Night at the Bijou.”☠️ Nobody’s laughing!🤮
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
How much of Ukraine will look like this by war’s end? Photo from Previous Russia-Ukraine War by Wojciech Zmudzinski Creative Commons License
Weekly Briefing
briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The content of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
CONTENTS (jump to section)
PRACTICE ALERTS
NEWS
LITIGATION & AGENCY UPDATES
RESOURCES
EVENTS
PRACTICE ALERTS
Virtual EOIR Registration: For new attorney registration, practitioners are no longer required to go to the court personally to show an ID. However, they still may appear personally. To coordinate identification verification please contact: Tina.Barrow@usdoj.gov or by phone at 717-443-9157.
Adjustment-Ready Cases: DHS is filing motions for dismissal for about 1,000 cases nationwide for Adjustment-Ready Cases (ARCs) to allow for pursuit of relief before USCIS. If you don’t want the case dismissed, timely file your opposition.
ICE Appointment Scheduler: Now available in Spanish, French, Portuguese, and Haitian Creole in addition to English.
Hill: Immigration restrictionists celebrated that the bill includes funding increases for ICE and Customs and Border Protection, but worried that the Biden administration will not use those funds to implement the Trump-style strict enforcement measures they favor…“The budget gives ICE money to fund over 5,000 more beds than proposed in funding bills introduced last year in both the House and Senate. These funding levels directly contradict commitments made by the Biden administration and members of Congress to reduce the immigration detention system,” Mary Meg McCarthy, executive director of the National Immigrant Justice Center, said in a release.
WaPo: Advocates for immigrants said they welcomed many of the Biden administration’s early changes, such as ending the travel ban and increasing the number of refugees allowed into the United States. But they said the most recent spending bill increases funding for immigration enforcement and complained that Biden has not kept his campaign promise to end privately run detention, which accounts for the majority of the ICE system.
NYT: The tension has also resonated inside the White House, where senior officials have been anxious that unwinding the Trump-era border restrictions would open the United States to an increase in illegal crossings at the southern border and fuel Republican attacks that Mr. Biden is too lenient on illegal immigration.
NYT: More than 4,100 Russians crossed the border without authorization in the 2021 fiscal year, nine times more than the previous year. This fiscal year, which began Oct. 1, the numbers are even higher — 6,420 during the first four months alone.
RollCall: Now, embassies have shuttered in Russia, Belarus and Ukraine. That could increase pressure on other consular posts in the region already feeling the weight of a visa backlog of nearly half a million cases.
AP: All Florida government agencies would be barred from doing business with transportation companies that bring immigrants to the state who are in the country illegally under a bill sent to Gov. Ron DeSantis on Wednesday.
Miami Herald: Nearly 200 Haitian migrants were returned to Haiti on Friday by the U.S. Coast Guard after their bid to reach U.S. shores ended with their overloaded sailboat running aground behind a wealthy North Key Largo resort in the Upper Florida Keys and some of their compatriots making a harried dash to freedom in the choppy waters. See also Black Immigrants to the U.S. Deserve Equal Treatment.
NYT: Although the bureau did not say how many people it missed entirely, they were mostly people of color, disproportionately young ones. The census missed counting 4.99 of every 100 Hispanics, 5.64 of every 100 Native Americans and 3.3 of every 100 African Americans.
Buzzfeed: Immigration and Customs Enforcement agents obtained millions of people’s financial records as part of a surveillance program that fed the information to a database accessed by local and federal law enforcement agencies, according to a letter sent Tuesday by Sen. Ron Wyden to the Department of Homeland Security inspector general requesting an investigation into whether the practice violated the US Constitution.
Forbes: “International student enrollment at U.S. universities declined 7.2% between the 2016-17 and 2019-20 academic years, before the start of the Covid-19 pandemic,” according a new analysis from the National Foundation for American Policy (NFAP). “At the same time, international student enrollment at Canadian colleges and universities increased 52% between the 2016-17 and 2019-20 academic years, illustrating the increasing attractiveness of Canadian schools due to more friendly immigration laws in Canada, particularly rules enabling international students in Canada to gain temporary work visas and permanent residence.”
Law360: A Salvadoran woman urged the U.S. Supreme Court to review an Eleventh Circuit decision greenlighting her deportation based on a decades-old removal order issued after she voluntarily left the country, saying the ruling conflicted with Fifth and Seventh Circuit precedents.
Law360: The Second Circuit on Thursday revived an asylum application from a man who says he fled political violence in Guinea, finding a string of errors in an immigration judge’s determination that he wasn’t credible.
LexisNexis: Dissent: I respectfully dissent from this court’s denial of rehearing en banc on the issue of whether to grant Chevron deference to the Board of Immigration’s (“Board”) recent interpretation of § 1101(a)(43)(S), providing that an aggravated felony under the INA is “an offense relating to the obstruction of justice, perjury or subornation of perjury, or bribery of a witness.” …Namely, this decision is the first and only to uphold the Board’s 2018 redefinition as reasonable—repudiating the Ninth Circuit’s 2020 decision. Accordingly, by no longer requiring a nexus element, this opinion expands the list of possible state crimes that could trigger immigration deportation consequences for many persons who may not have been otherwise subject to deportation. This is a sizeable impact for many people in our country.
LexisNexis: The Government indicates that the matter should be remanded, in part, to the BIA for consideration of her request for voluntary departure in light of Niz-Chavez. Thus, the petition for review is granted as to the stop-time issue, and this matter is remanded to the BIA for consideration under Niz-Chavez and other relevant precedents.
LexisNexis: The Board granted one extension but denied a second, suggesting that Oluwajana instead submit his brief with a motion seeking leave to file it late. When he did so, less than two weeks after the submission deadline, the Board denied the motion in a cursory-and factually erroneous-footnote. And having rejected the brief, the Board upheld the removal order without considering Oluwajana’s allegations of error by the immigration judge. Based on the undisputed circumstances of this case, we conclude that the Board abused its discretion by unreasonably rejecting Oluwajana’s brief.
Law360: The Ninth Circuit ordered the Board of Immigration Appeals on Wednesday to decide if an immigrant’s rape conviction bars deportation relief, with a dissenting judge saying the decision only delays the “unpalatable” conclusion that the man can seek a removal waiver.
BIA: When the Department of Homeland Security raises the mandatory bar for filing a frivolous asylum application under section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6) (2018), an Immigration Judge must make sufficient findings of fact and conclusions of law on whether the requirements for a frivolousness determination under Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), have been met.
LexisNexis: Additionally, the respondents assert that despite informing immigration officials of their intent to get a new attorney and “sort out [their] case,” ICE officials told them that they were not priorities for deportation and there was nothing more they could do with respect to their case (Respondents’ Mot., Tab G). Accordingly, under these circumstances, we will equitably toll the filing deadline for the respondents’ motion to reopen.”
Law360: An Illinois federal judge closed the book on Chicago’s lawsuit challenging certain Trump-era conditions for recipients of a federal public safety grant on Tuesday when he put the final touches on his judgment blocking conditions for receiving the grant to resolve the case’s outlying issues.
LexisNexis: Defendant executed an I-864 Affidavit of Support; therefore, he is contractually obligated to provide Plaintiff and J.K.M.F. any support necessary to maintain their household at an income that is at least 125 percent of the Federal Poverty Guidelines. Plaintiff has received no financial support from Defendant since fleeing to a shelter on October 21, 2021…Accordingly, Plaintiff has alleged a meritorious claim against Defendant for breaching his contractual duty.
Law360: U.S. Immigration and Customs Enforcement’s New York office will overhaul its policy on people suspected of civil immigration offenses while on bond, settling claims it detained suspects beyond what the law allows without a chance to post bail.
Law360: A D.C. district court ordered the federal government to disclose the names of border officers who screened migrants’ asylum claims under a pilot program, saying Friday that asylum-seekers needed to know if they were unwittingly placed in the since-suspended project.
Law360: A woman’s suit contending she was wrongly deprived of pandemic relief payments from the IRS because of her marriage to an immigrant is barred by a federal law prohibiting court challenges that restrain tax collection, a Maryland federal court ruled.
USCIS: U.S. Citizenship and Immigration Services announced that it is updating the USCIS Policy Manual to consider deferred action and related employment authorization for noncitizens who have an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, for Special Immigrant Juvenile (SIJ) classification but who cannot apply to adjust status to become a lawful permanent resident (LPR) because a visa number is not available.
AILA: DOS provided guidance for nationals in Ukraine seeking to enter the United States. The guidance clarifies information on nonimmigrant visas, immigrant visas, COVID-19 entry requirements, humanitarian parole, refugee status, and more.
AILA: EOIR updated appendix O of the policy manual with adjournment code 74. The reason is “Public Health,” and the definition is “Adjourned for public health reasons.”
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
The “Top News Section” is a good rundown of the Biden Administration’s “mixed bag” on immigration policy, particularly as it relates to our largely defunct asylum system and the refugee system (still reeling from Trump-era “deconstruction”) that does not appear to be prepared for the inevitable flow of Ukrainian refugees. It also highlights some of the lingering damage to our democracy (e.g., racially biased census undercount) done by the Trump regime and its toady enablers.
My Take: Ukrainian Refugees & The U.S. Response
So far, largely meaningless political rhetoric from the Administration concerning Ukrainian refugees has been predictably “welcoming.” But, the actions to date have amounted to nothing more than taking the obvious step of granting TPS to Ukrainians actually here.
That does little or nothing to address the nearly 3 million refugees who have fled Ukraine in recent weeks. If the Administration has a coherent plan for admitting our share of those refugees and resuming processing of Ukrainians and all other refugees seeking asylum at the border, they have not announced it.
For example, despite U.S. and worldwide condemnation of China’s treatment of Uyghurs — some characterizing it as “genocide” — the Administration has done nothing to speed the processing of the very limited number of Uyghur refugees languishing in our still largely dysfunctional asylum system. If, as I’ve pointed out on numerous occasions, the Administration is unable to address “low hanging fruit” like Uyghurs and Immigration Court reform, in a bold and timely matter, how are they going to respond to more difficult human rights issues?
As this op-ed in today’s NY Times points out, “generous” responses to large-scale refugee situations are often short-lived. As refugees flows inevitably continue and grow, the initial positive responses too often “morph” into xenophobia, nativism, racism, culture wars, and restrictionism.https://www.nytimes.com/interactive/2022/03/15/opinion/ukraine-refugee-crisis.html
Ukrainian refugees have two potential “advantages” over those from Syria, Afghanistan, Iraq, Haiti, Venezuela, Ethiopia, DRC, and the Northern Triangle that could help them realize “more durable” protection. They are 1) mostly White Europeans, and 2) mostly Christian.
Neither of these is a legally recognized international criterion for defining refugees. Fact is, however, that they were not universally descriptive of those aforementioned groups who have often received less enthusiastic receptions from Western democracies. As a practical matter, “cultural attitudes” influence the Western World’s acceptance of refugees, probably to a greater extent than the actual dangers which those refugees face in the lands from which they have fled.
But, that has also been true in Haiti, Syria, Central America, the DRC and many other trouble spots. It has made little positive difference to the U.S. The Trump regime, led by Uber racist-misogynist refugee deniers “Gonzo Apocalypto” Sessions and “Gauleiter” Stephen Miller actually went out of their way to target the most vulnerable women and children fleeing persecution for further abuse.
And, to date, the Biden Administration’s promise to do better and regularize the treatment of those fleeing gender-based violence has been a huge “nothingburger.” Whatever happened to those promised “gender-based regulations” and the “common-sense recommendations” to replace the restrictionist holdover, bad-precedent-setting BIA with real judges who are experts in gender-based asylum?
The flow of refugees from Ukraine, and a much smaller (at this point) flight of dissidents from Russia, has already “exceeded projections” and is not likely to diminish in the coming weeks and months. Moreover, with Russia focusing on civilian targets and leveling parts of many major metropolitan areas in Ukraine, the essential infrastructure and “livability” of many areas is rapidly being destroyed.
Thus, even if a “truce” were declared tomorrow (which it won’t be), many who have fled would not be able to return for the foreseeable future, perhaps never, even if they wanted to. The latter is a particular risk if Russia makes good on its threats to eradicate the current Ukrainian Government and replace it with a Russian puppet regime.
Refugee planning has consistently lagged foreign policy developments even though that has been shown to be problematic over and over. When will we ever learn?
We can’t necessarily prevent all foreign wars and internal upheavals, worthy as that goal might be. But, we can learn to deal better with inevitable refugee displacements.
Indeed, that was the purpose of the UN Convention and Protocol on the Status of Refugees, to which we and the other major democracies are parties. That more than 70 years after the initial Convention was signed we are still groping for solutions (indeed, we have shamefully abrogated a number of our key responsibilities under both domestic and international law)to recurring, somewhat predictable, and inevitable dislocations of humanity is something that should be of concern to all.
Despite all of the nativist propaganda, the truth is that nobody wants to be a refugee and that it could happen to any of us for reasons totally beyond our control! The similarity of the lives of many Ukrainians, up until a few weeks ago, to daily life in Western Democracies has perhaps “brought home” these realities in ways that the equally bad or even worse plight of other refugees in recent times has not.
I hope that we can learn from this terrible situation and treat not only Ukrainian refugees, but all refugees, with generosity, humanity, compassion, kindness, and as we would hope to be treated if our situations were reversed. Because, in reality, nobody is immune from the possibility of becoming a refugee!
“After an immigration judge ordered him removed from the United States, Olawole Oluwajana appealed to the Board of Immigration Appeals and retained counsel to represent him. But the government was slow in providing a copy of Oluwajana’s immigration file, without which his attorney could not prepare a brief. The Board granted one extension but denied a second, suggesting that Oluwajana instead submit his brief with a motion seeking leave to file it late. When he did so, less than two weeks after the submission deadline, the Board denied the motion in a cursory—and factually erroneous—footnote. And having rejected the brief, the Board upheld the removal order without considering Oluwajana’s allegations of error by the immigration judge. Based on the undisputed circumstances of this case, we conclude that the Board abused its discretion by unreasonably rejecting Oluwajana’s brief. We therefore grant the petition for review, vacate the Board’s order, and remand for further proceedings.”
Here, the BIA took 7 months to set a briefing schedule, didn’t get the file to counsel in a timely manner, then “dinged” the R’s counsel for being 12 days late in filing a brief on a complex issue where input from legal counsel would likely be “outcome determinative!”
But, along the way, “Garland’s Clown Show” 🤡 fabricated a 33 day “late period.” And, to add insult to injury, they ignored their own regulations and instructions to counsel.
Even OIL couldn’t defend this one! But, Garland nevertheless retains the “Miller Lite” Clowns from his predecessors’ “whatever it takes to deny and deport assembly line!” No quality, no fairness, no accountability! Just “anything goes” when it’s “only immigrants of color!”
Briefing schedules aren’t “rocket science.” But Garland’s “Miller Lite” holdover gang can’t even get the simple stuff right!
How is this “expert judging” entitled to “deference?”
How is having the Circuit spend time cleaning up Garland’s messes an acceptable use of Article III resources?
What happens to the many human victims of Garland’s unjust and unprofessional system who don’t have Scott Pollock & Co. to take Garland to the Court of Appeals?
What happens to Garland’s victims when the CA is on “autopilot,” which often happens?
Is it any wonder that “judges” who would rather fight with attorneys than read their briefs are running an astounding 1.6 million case backlog and an appellate backlog of 82,000, up approximately 7 times from just four years ago?
Wonder why an AG running a “second (or perhaps third or fourth) class justice system” for people of color isn’t a very effective leader or force for racial justice in America?
Clear, concise, helpful, and correct. This is the type of guidance that should be in BIA precedents! It has the potential to “move” large number as of cases through Garland’s backlogged system.
It would also deter ill-advised “bogus oppositions” to meritorious motions such as the one woodenly advanced by DHS in this case. They do it because sometimes they are rewarded by lousy EOIR judging. At worst, it’s a crap shoot as EOIR currently functions (or, in too many cases, malfunctions).
Start consistently granting meritorious motions like this and the dilatory tactics from DHS will stop! In any system, particularly one as backlogged as this one, getting the Government to stop wasting judicial time and promoting bad results in a big step forward!
The prior Administration made an all-out effort to institutionalize bias and bad judgment. Garland has been far, far too slow in exposing and rooting out this bad behavior!
Just look around for some helpful, positive “precedential” guidance from the BIA on equitable tolling in the Fourth Circuit. Let me know if you find any!
So what aren’t cases like this precedents? Why doesGarland’s BIA instead keep publishing a steady stream of obtuse, poorly reasoned, anti-immigrant precedents written by Trump holdovers. These push IJs in the wrong direction, lead to prolonged wasteful litigation, reinforce the toxic “culture of denial,” create a “false narrative” that denies the merits of many respondents’ claims, and, worst of all, abrogate the BIA’s duty to insure fundamental fairness and due process for all!
Where’s the positive guidance on how to grant gender-based and family-based asylum cases, building on the restoration of A-R-C-G- to clear out meritorious old cases?
Where’s the positive guidance on how to “leverage” PD and administrative closing to reduce backlogs?
Where’s the positive precedent on expeditiously granting reopening in the many non-LPR cancellation cases mishandled by EOIR in light of Pereira and Niz-Chavez?
Where’s the common sense workable rule on nexus that reflects “mixed motive” and incorporates ordinary concepts of causation whilejettisoning the prior Administration’s bogus “look for any motivation that doesn’t qualify, no matter how attenuated or contrived” approach?
Where’s the reasonable bond guidance that would promote consistency and end the routine practice of setting absurdly high bonds in some Immigration Courts?
With the available talent to reshape the BIA into a body that would actually fulfill the vision of “through teamwork and innovation be the world’s best tribunal guaranteeing fairness and due process for all” why does Garland continue to screw immigrants and build more backlog by treating “Miller Lite Holdovers” as if they were life-tenured judges? They aren’t!
Although Garland appears to be in denial, “immigration judging” is some of the most consequential and important decision-making in the entire Federal Judicial System! Many, probably the majority, of those languishing in Garland’s out of control, largely self-created 1.6 million case EOIR backlog have strong claims to remain in a fair and efficient system. Yet, you would never know it by the indolent way Garland has handled the BIA mess (82,000 pending appeals) and his failure to speak out and lead by example on due process, fundamental fairness, racial justice, and human rights.
A new, functioning, expert, star-studded BIA, dedicated to due process, fundamental fairness, equal justice, human rights, and best practices, would be a great starting place! A year into an Administration that should know better, it’s long, long overdue!
Meanwhile, Elsy and other talented, motivated, committed members of the NDPA will continue to pound and expose Garland’s dysfunctional “courts” at all levels of the judicial system until we get the change that we need and that was (falsely) promised!
Few Americans favor mass deportations, and with good reason — a large majority of the estimated 10.5 million undocumented immigrants in the United States have been here for at least a decade, including more than 4 in 5 Mexican migrants. Many are fixtures in their community, with U.S. citizen spouses and children; the vast majority are employed, and some own their homes and businesses.
So it was not a radical idea when Homeland Security Secretary Alejandro Mayorkas issued new enforcement guidelines last fall that urged deportation agents to focus their efforts on actual threats to public and national safety, as well as border security. As for long-term migrants, the bulk of whom are law-abiding, Mr. Mayorkas urged Immigration and Customs Enforcement officials to use some common sense. “The fact that an individual is a removable noncitizen should not alone be the basis of an enforcement action against them,” he said.
. . . .
Despite the resistance, however, they appear to be having a preliminary and positive effect of tailoring enforcement to unauthorized immigrants who are dangerous. In the first 13 months of the Biden administration, 44 percent of deported migrants had been convicted of felonies or aggravated felonies, compared with just 18 percent during the Trump administration, according to internal ICE figures. For the same period, there was also a sharp jump, compared with under the Trump administration, in the number of arrests of migrants who had earlier convictions for aggravated felonies.
At the same time, the number of migrants held in ICE detention facilities has dropped sharply. At the end of February, roughly 18,000 migrants were detained, and the vast majority had no criminal record or had committed only minor offenses, such as traffic violations, according to the Transactional Records Access Clearinghouse at Syracuse University. By contrast, nearly three times as many migrants were held for much of 2019, when the Trump anti-immigrant blitz was in full force.
. . . .
It’s not lax enforcement to refrain from arresting very old or very young migrants, or to think twice about a deportation that would tear apart a family. It’s an intelligent application of the law.
*********************
Read the full editorial at the link.
The Post is right. But, unfortunately, by not making this “smarter PD” part of an overall plan to reduce backlogs, reform the Immigration Courts, re-establish the legal asylum and refugee systems, and end unnecessary detention, the Biden Administration has failed to take full advantage of this promising development.
By “running” from immigration improvements rather than embracing them, they also fail to to get credit for replacing the “maliciously incompetent,” demonstrably not in the national interest Trump/Miller/Homan White Nationalist nativist policies with a functioning system that actually serves the national interest and works as well as can be expected without legislative reforms.
A major problem remains the underperformance of DOJ and EOIR under AG Garland. Without the enlightened leadership and better personnel that should now be in place, Garland has failed to “leverage and build upon” improvements in DHS enforcement priorities to slash backlog and advance due process at EOIR.
Indeed, disturbingly, Garland has actually built new Immigration Court backlogat a record pace, while inexplicably relying on a “holdover Miller Lite” BIA that continues to deliver bad precedents, resulting in increased wasteful litigation and backlog-building remands from Circuit Courts. He has also ignored the many opportunities for harnessing the innovative ideas and high-level pro bono advocacy skills developed by the private sector in response to the “Trump onslaught” to dramatically advance and increase quality representation before the Immigration Courts.
The grotesque mismanagement of EOIR by the Trump DOJ resulted in a backlog of approximately 12,000 pending BIA appeals at the end of FY 2017 exploding to more than 84,000 by the end of FY 2020 — a mind-boggling 700% increase!https://www.justice.gov/eoir/page/file/1248501/download
Yet, curiously, there has been no major personnel shakeup at EOIR under Garland. The Trump-era “hand selected” BIA whose skewed anti-asylum, anti-immigrant “jurisprudence” helped create this mess remains largely intact.
Most of the EOIR senior managers who helped DOJ engineer this unmitigated disaster remain in their jobs. Garland has sent a message that there will be no accountability for “going along to get along” with the White Nationalist war on immigrants and that he isn’t interested in expertise, fundamental fairness, creativity, or dynamic leadership by example in his reeling “court system!”
Yet, Garland continues to “blow off” and “lock out” the private/NGO sector experts who could bring rational professional docket management, higher representation rates, and resulting reductions in detention to his dysfunctional system. Instead, he continues the “Amateur Night at the Bijou” approach of unilateral “Aimless Docket Reshuffling” and endless “built to fail gimmicks” designed by bureaucrats to meet political agendas without meaningful input from and consideration of the views of those who have actual private sector experience litigating in his broken system.
How does the make sense? It doesn’t!
Of course, effective, dynamic, courageous management of EOIR to focus on constitutionally required due process would provoke reactions from the GOP nativist right, including obstructive litigation. That’s why Garland also needs better litigators at DOJ: Tough, experienced “due process warriors” who will aggressively and expertly defend and advance the Executive’s authority to rationally administer the law, allocate resources wisely and prudently, and to recognize and vindicate civil and constitutional rights that have been suppressed by GOP politicos and some of their reactionary Federal Judges.
Bottom line: Probably the majority of those 1.6 million individuals rotting in EOIR’s largely self-created backlog fit the Post’s “lead-in” description above: “Many are fixtures in their community, with U.S. citizen spouses and children; the vast majority are employed, and some own their homes and businesses.”
Many could be granted asylum or other protection under proper interpretations of the law or granted “cancellation of removal” but for the unrealistic, anachronistic 4,000 annual “numerical cap” imposed by Congress decades ago. Others could be granted Temporary Protected Status (“TPS”) just as it recently was extended to Ukrainians in the U.S.
Very few are “criminals” or others who should be “priorities” for removal. Most are actively contributing to our society and many are paying taxes. In most cases, removing individuals in the EOIR backlog from the U.S., even if possible, would be a net loss for our society.
Yet, the uncontrolled, undifferentiated EOIR backlog prevents the Immigration Courts from working in “real time” on more recent cases that might actually be proper priorities.What’s the good of a more rational and professional system at DHS Enforcement if the Immigration Courts under Garland remain discombobulated? The system will not change without dynamic expert leadership at the top and an infusion of better judges, particularly at the appellate level where precedents are set and “best practices” and some measure of fair and consistent adjudication can be established and enforced.
Immigration is a complex, often convoluted system. Without a comprehensive plan led by outside experts that fixes the Immigration Courts and restores a robust functional asylum system at our borders, the positive enforcement changes initiated by Mayorkas will continue to have limited impact. And, ironically, that will play right into the hands of the Millers and Homans of the world who would like to see democracy fail, irrationality prevail, and cruelty rule!
