"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.
The constant stream of proposed regulations relating to our immigration laws has led to a continuous call to the public to submit comments to those rules. Individuals and organizations have responded in large numbers, in spite of the short 30 day comment windows this administrative has generally afforded. For those who have questioned the purpose of submitting comments or have wondered if the effort was worth it, I point to the recent decision of U.S. District Court Judge Susan Illston in the Northern District of California in Pangea Legal Services v. DHS granting a temporary restraining order against regulations that classify a wide range of crimes as bars to asylum eligibility.
As background, I would like to point to the explanation of the notice and comment procedures provided by U.S. District Court Judge Timothy J. Kelly last year in CAIR Coalition v. Trump. In that case, the Departments of Justice and Homeland Security attempted to bypass the process by publishing final rules with no opportunity to comment. Judge Kelly (who happens to be a Trump appointee) found that the avoidance of comments invalidated the regulations, explaining that the “procedures are not a mere formality. They are designed (1) to ensure that agency regulations are tested via exposure to diverse public comment; (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review.”
It is further worth noting that comments become part of the public record, and that the Administrative Procedures Act requires the agency to respond to all significant comments before the regulations can become final.
In accordance with this scheme, a brief comment period was provided as to the regulations covered in Pangea. The proposed rule sought to expand the category of “particularly serious crimes” that Congress has designated as a bar to asylum. Instead of allowing immigration judges to make such determinations on a case-by-case basis, the new rule sought to add a broad range of criminal conduct that the Departments of Justice and Homeland Security originally argued should categorically bar asylum as particularly serious crimes.
Commenters pointed out the flaws with this proposal, not the least of which was some of the offenses are not particularly serious. The crimes include harboring certain noncitizens (even if they are family members), or possessing or using false identity documents (for example, to work and support one’s family). These offenses are a far cry from the type of behavior that would pose such a threat to society as to outweigh the obligation to provide refugee protection. In publishing the final rule, the Departments did acknowledge these concerns raised in the comments. However, as explained above, more than mere acknowledgement was required.
Although Judge Illston found numerous reasons to support the granting of the temporary restraining order, one of those reasons was the Departments’ failure to respond to the above comments as required. As Judge Illston wrote, “when commenters pointed out that the new bars would include minor conduct and conduct that cannot be categorized as particularly serious or even dangerous, the Departments either declined to respond or else relied on their authority under § 1158(b)(2)(C).”
In other words, when the comments received caused the Departments to realize that their claimed justification for the rule under the statute’s “particularly serious crime” provision was problematic, instead of addressing those comments as they were required to do, the agencies instead replied “Particularly serious crimes? Is that what you thought we said? We meant they were similar to particularly serious crimes. Sorry for the confusion; let’s just say the changes fall under section 1158(b)(2)(C) for the sake of clarity.”
That section which the Departments now chose to rely on contains vague language allowing the Attorney General to establish by regulation “additional limitations and exceptions, consistent with this section” under which noncitizens might be ineligible for asylum. The Departments might not have noticed the words “consistent with this section,” which would seem to rule out their disregarding the fact that Congress had allowed only a few narrow statutory limitations to the right to asylum that tend to be consistent with international law. That might explain their reading of the clause as an invitation to impose any limitation on asylum the Departments desired, with no regard to international law obligations.
But besides from the permissibility of the Departments’ interpretation of the clause, Judge Illston categorized their tactics as evasion. The judge wrote that “the Departments initially stated they were relying in part on their authority to designate new offenses as particularly serious crimes. They then disclaimed reliance on that authority but said the new offenses were ‘similar to’ particularly serious crimes… And they declined to address commenters’ concerns that the Rule now bars crimes that do not rise to the level of particularly serious because, according to the Departments, they are not, in fact, designating new particularly serious crimes and any comments to that point ‘are outside the scope of this rulemaking.’”
Much thanks are owed to the lawyers and organizations who litigated and filed supporting briefs in Pangea; they managed to block yet another effort by this administration that sought to undermine the very nature of refugee protection. But thanks are also due to those who took the time and effort to submit comments. Hopefully, this will provide inspiration to continue to submit comments to new regulations still being proposed in these final days before what will hopefully be a return to normalcy, decency, and respect for the rule of law.
Copyright 2020 Jeffrey S. Chase. All rights reserved.
Republished by permission.
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While many Federal Judges have been receptive and stopped illegal (and often immoral) regulations in their tracks, there is one key group of jurists so in the regime’s White Nationalist pocket that they don’t pay any much attention. That is the GOP majority on the Supremes, who have happily treated the Trump/Miller racist agenda of “Dred Scottification” of asylum seekers and other migrants with kid gloves. At the request of an “ethics free” Solicitor General, the majority has used corrupt procedural moves to interfere with the lower courts and advance the regime’s agenda while accepting obvious factually and legally inaccurate “pretexts” to “justify” the regime’s extreme, racist, dehumanizing actions.
Imagine all the positives for America that could be accomplished ifall of the time and resources devoted to blocking an avalanche of illegal regulations and litigating them through the Federal courts were instead devoted to working for the public good. That’s actually what government is supposed to do. But, fascist regimes and their enablers, not so much.
Ultimately, better qualified, more scholarly, human, and humane Justices — judges distinguished for their wisdom, courage, humanity and constructive problem solving abilities rather than adherence to some far-right agenda — on the Supremes will be necessary for a better, more equal, America.
Life tenure means it will be a slow process of getting the right “Supreme Team” in place. But, one that needs to begin somewhere. A remade U.S. Immigration Court seems like a good starting place for building a better Federal Judiciary at all levels, bottom to top!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleJeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com Republished under licenseDumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under licenseHon. Paul Grussendorf U.S. Immigration Judge (Ret.) Member, Round Table of Former IJs Author Source: Amazon.com
“Stephen Miller, the self-hating white nationalist who has dictated this administration’s immigration policy from the beginning, was once a staffer for then-Senator Jeff Sessions. Miller subscribes to the ‘white replacement’ or ‘white genocide’ theory that the brown-skinned migrant hordes will replace the superior descendants of Western civilization if not stopped.”
In 2016, after a legal career of 30 years in refugee and asylum protection, including eight years as a federal refugee officer and seven years as an immigration judge, I accepted a position in the Arlington, Virginia asylum office as a Supervisory Asylum Officer. I had tremendous respect for the U.S. asylum program and I knew from experience that most asylum officers choose the job as a humanitarian calling; their ranks include many attorneys and individuals with graduate degrees, with experience in the Peace Corps and other humanitarian backgrounds. And I can affirm that Asylum Officers have the hardest job of any immigration officers in USCIS-United States Citizenship and Immigration Services, due to the complex and ever-changing asylum law, and the nature of the intensive interviews.
The law enforcement side of our immigration system is exercised by ICE — Immigration and Customs Enforcement, a sub-agency of DHS that was created, along with Department of Homeland Security, in 2003 after the tragedy of 9/11. ICE officers are hired from a completely different profile of applicants and receive much less training in the humanitarian aspect of immigration law. The equivalent at the border is CBP — Customs and Border Protection.
The Netflix Series Immigrant Nation, airing in August 2020, exposes how, soon after Trump’s ascendancy to the presidency, he and his nativist cronies put into place a series of executive measures designed to practically eliminate refugee admissions; to curtail and eventually eliminate access to our asylum system; and even to severely reduce lawful migration to the United States. Virtually all of these executive measures are unlawful, in conflict with our nation’s immigration statute and in violation of our international treaty obligations, and even demonstrably harmful to the economic well-being of the U.S. They have all been challenged in court and practically every such executive measure has been deemed unlawful by federal district and appellate courts, yet the anti-immigrant juggernaut sails on. Recently the GAO — Government Accounting Office, an independent body, declared that, according to the Federal Vacancies Reform Act the current Acting Directors of both DHS, Chad Wolf, and USCIS, Ken Cuccinelli, were unlawfully appointed, and presumably every edict that they have issued since their appointments this past year will also be deemed unlawful.
One of the first ignoble acts of the administration’s new appointee to head U.S. Citizen and Immigration Services, Director Lee Cissna, was the removal of this truism from the agency’s mission statement: “America is a Nation of Immigrants.” Why would the head of the agency that receives all applications for visas, both temporary and permanent, and for asylum and refugee protection choose to redact such seemingly innocuous and self-evident verbiage from the agency’s mission statement?
In the same time frame the Department of Housing and Urban Development, headed by Trump’s appointee Ben Carson, removed the words “inclusion” and “free from discrimination” from its mission statement. We’ve seen in history how totalitarian regimes try to control the dialogue within their populace by changing and sanitizing language, including the use of language within federal institutions.
When this White House requested a study to map the net costs of refugees, conducted by the Department of Health and Human Services, and the results showed a net benefit to the economy over a period of ten years of $63 billion, the White House buried the study. https://www.nytimes.com/2017/09/18/us/politics/refugees-revenue-cost-report-trump.htm
Simultaneously the administration was implementing the so-called Muslim ban against citizens and residents of seven mostly-Muslim countries out of supposedly national security reasons. No one has ever explained why Saudi Arabia, the home of 15 of the 19 9/11 bombers, was not included in the list. (Saudi Arabia is also the home of the Al Qaeda sympathizer who shot up the Naval Air Station at Pensacola,Florida Air Base in December, 2019, killing three sailors and wounding eight.)
In the early days of this administration there was much hype over the “migrant caravans” composed mostly of Central Americans from the “northern triangle” countries, El Salvador, Honduras and Guatemala, that were “invading” our country — the old “barbarian hordes” trope that is a favorite of every totalitarian regime. In fact the numbers of each such “caravan” for the most part would easily fit inside a typical college stadium. (Current demographics demonstrate that even if we admitted all of them as potential workers and residents, the U.S. would still experience labor shortfalls in the near future and they would not supplant the decline of our native-born population.)
In the final months of 2016, I traveled with a group of asylum and refugee officers to San Salvador where we interviewed and vetted minors who were requesting refugee protection because of threats to themselves and their families by the ruthless MS-13 and 18th Street gangs. The children we spoke with or their parents had all received such threats as, “Either you work for us or you and your parents will be dead next week,” or “Give me your daughter or you have two days to leave the country.” And they all knew neighbors or close relatives who had died when such threats were ignored. We felt gratified knowing that we were granting these kids a lifeline of resettlement to the U.S.. I would only hope that any American father or mother, if ever faced with such a choice by a credible threat, would have the courage and means to flee across borders in order to protect their children, just as those parents joining the caravans with their children have chosen to do.
The new administration ordered a halt to such in-country interviews and even the resettlement of the cases we had already approved for travel. Its spokesmen have continuously and falsely characterized such asylum applicants as fraudsters who are gaming the system. The administration’s first morally challenged Attorney General, Jeff Sessions, claimed there was a conspiracy of corrupt attorneys who are manufacturing all of their stories. Believe me, they are not manufactured. All credible international reporters, including our own State Department, rebut the claim that such migrants are merely seeking jobs in the U.S. International reports affirm that some gangs in El Salvador are able to maintain such power and territorial control that they exercise the functioning equivalent of State authority, making it impossible for potential victims to resist their demands.
Sessions even admonished the assembled group of immigration judges at a conference, telling them they must not let their humanitarian impulses interfere with some fictitious mandate to deport as many applicants as possible. (Stephen Miller, the self-hating white nationalist who has dictated this administration’s immigration policy from the beginning, was once a staffer for then-Senator Jeff Sessions. Miller subscribes to the “white replacement” or “white genocide” theory that the brown-skinned migrant hordes will replace the superior descendants of Western civilization if not stopped.)
Jeff Sessions also chose to meddle in the administration of the immigration courts, in such a bungling manner that his mandated reforms achieved the opposite of his goal to reduce backlogs. By restricting the ways in which immigration judges can control their own docket, such as eliminating a judge’s ability to place a case on hold or “administratively close” a case while collateral legal action is ongoing in the migrant’s case, and by taking away ICE trial attorneys’ discretion to agree to grants of compelling cases, backlogs blossomed by the tens of thousands — within the two and a half years of this administration from approximately 500,000 to currently one and a half million.
The Netflix film crew obtained unprecedented access to ICE and CBP operations in the making of their series. I have trained asylum officers at the Federal Law Enforcement Training Center at Glencoe, Georgia, featured in the first episode of the Netflix series, and I have supervised asylum officers at the ICE family detention centers in Texas featured in the first episode. And I experienced, along with my colleagues, the devastating effects of the administration’s continuing attempts to deter refugees from coming to our southern border through abuse and cruelty, the so-called family separation policy. It is telling to see how many ICE and CBP officers and supervisors conceded, on camera, that the deterrence of ripping children from their parents’ arms upon arrival at the border is cruel and inhumane and un-American, but they felt compelled to follow the orders because “it’s the law.”
The so-called Zero Tolerance policy that was advanced by retired Marine General Kelly, first DHS Secretary and later White House Chief of Staff, and AG Sessions was a sham from the get-go. An impossible task, launched for public consumption and to create the impression that only by locking up all unlawful border crossers could any order be returned to the enforcement of our laws. The sham is that no law enforcement body in the country, federal or state, has a zero tolerance policy, simply because no one has the resources to detain, charge, prosecute, adjudicate and jail all offenders. (This stark reality is in fact the reason for the plea bargaining system in criminal court). In my career I observed how the U.S. Attorney’s Offices in Washington, D.C., and in San Diego, would, within their discretion, “no-paper” cases they considered too minor or insignificant to prosecute, saving their powder for bigger game. This was also the policy that the Obama Administration, under guidance of then DHS Secretary Janet Napolitano, established as ICE policy, when ICE agents and prosecuting attorneys were advised to let the low-hanging fruit go, such as hard-working but undocumented laborers, and concentrate instead on serious felons for apprehension and removal. The admitted consequences of this administration’s Zero Tolerance policy was to require all migrants be detained and prosecuted. Since children cannot be detained in an adult facility, they were to be separated from their parents, in order to achieve the maximum of trauma and pain upon the children and their parents. The trauma itself was to be a deterrent to future unlawful crossers, by “sending a message” not to come to the U.S. The notorious photos of kids in cages have tarnished our international reputation and provided talking points for terrorists.
Netflix film crews accompanied agents on raids in multiple locations, when the Zero Tolerance policy initially led to mass inland roundups. The cameras recorded agents blatantly lying to targets about who they are and their authority to enter private dwellings and arrest suspects without criminal arrest warrants, clear violations of the Fourth Amendment. We see numerous ICE veterans, and even FODs-Field Office Directors — lamenting the new ‘catch everyone’ policy, knowing from experience that such tactics are inhumane and bound to fail in the long run.
We see a gung-ho ICE public affairs officer trying to convince the Field Office Director of the Charlotte, North Carolina office to lie in a press briefing and indicate that 90% of the migrants detained in a community-wide sweep have criminal records; the FOD twice corrects him that the correct figure is 30–35%, meaning the remaining 70% are harmless field workers, hotel employees, construction workers or single mothers with U.S. citizen children.
Even though political appointees such as DHS Secretary Kirsjten Nielsen and AG Sessions were willing to blatantly lie to Congress about the motivation and consequences of such cruel policies, they were still tossed out by the president when the reality on the ground impaired their ability to achieve deportation numbers sufficient to satisfy the Nativist in Chief. Ultimately it took an even more barbaric policy, the Migrant Protection Protocol (MPP), another unlawful executive order, to force legitimate asylum seekers to remain on the Mexican side of the border while their cases were piling up in the bureaucracy. MPP is Orwellian double-speak, because the migrants, rather than being protected, are being sent into circumstances where they are easy prey for cartels targeting them and are notoriously subject to kidnappings, rapes, robberies and murders. No migrant being forced to wait for months in tents or temporary shelters along the border is safe.
Most disappointing to me as a Supervisory Asylum Officer was how management at the Arlington Asylum office, as soon as the MPP operating instructions came down in early 2019, was so willing to coerce asylum officers into violating their oaths to uphold the Constitution and the laws of the U.S. At an internal meeting with management and the asylum officers, supposedly to hash out the ground rules of this new MPP program, one of my officers complained that he felt both ethically and morally conflicted for the first time in his career, knowing that forcing asylum seekers to wait in Ciudad Juarez, one of the most dangerous cities in the world, was a violation of his oath and his training to offer protection to asylum seekers.
I wondered how our managers could justify to themselves the cruel and unlawful policies they were insisting that their subordinates carry out. Were they hoping that the federal courts would soon overturn the blatantly illegal policy and they would thus be off the hook? Were they thinking that at least they, as a federal officer with some limited power, were better than whoever might replace them if they were to resign? I’m sure that is how many attorneys and jurists, working within totalitarian regimes, justify their collaboration and acceptance of policies that are dehumanizing and deadly. When they were asked by their subordinates for justification they threw up a disingenuous wall of semantics, and when asked what procedures Customs and Border Protection were following in the context of MPP, they were told, “We believe CBP knows how to do their jobs.” Basically, just shut up and do what we tell you to do.
I was one of the first supervisors sent to oversee our officers conducting the new MPP screening interviews at the San Ysidro border crossing south of San Diego. Under the new guidelines the migrant must demonstrate to the asylum officer that it is “more likely than not” that they would meet serious harm if forced to wait for many months in Mexico until returning for an audience in front of an immigration judge, in order to be exempted from the requirement of waiting in Mexico. One of my very conscientious officers decided to refer for protection a young Guatemalan woman who had been held captive in an apartment in Tijuana by her domestic partner and brutalized and assaulted, and then viciously stalked when she fled from the dwelling. She should be allowed to remain in the U.S. pending her court date because it was clearly too dangerous for her to return to where her tormentor could easily locate her. I reviewed the interview notes and consulted with my officer and I agreed that it was a good case for protection. We informed CBP and our chain of command of the decision. The next day I received a call from the Deputy Director of the Arlington Asylum office., Jennifer Rellis. I was told that we had to be very careful with our assessments of the MPP cases because the “front office” had eyes on these cases. I was instructed to overturn our decision and to deny the young woman protection. And I was instructed that, going forward, any time I was inclined to approve any of my officers’ decisions to grant protection, I must first have one of my managers also review and sign off on it. There was no such requirement if we decided to deny protection to an applicant. Thus a presumption was created that we should deny protection in our MPP adjudications, a reversal of all of our training as asylum and refugee officers, and a blatant violation of our own statute and of U.N. refugee guidelines. In the following months this presumption against protection has continued to be enforced.
I wondered how Ms. Rellis could live with herself in so callously stripping me of my discretion to afford protection to legitimate refugees, given her training as a humanitarian lawyer. I’m sure if asked, she would argue we have no choice but to comply, and we can still protect asylum seekers within the limits of this new program. But there was no articulable reason why she would order me to enact an unlawful presumption of ‘not qualified’ where none exists in our asylum statute, regulation, case law, or international refugee law. The fact that such managers, whom we had always believed were motivated by their own humanitarian commitments, would so enthusiastically fall in line with a blatantly unlawful program caused great distress among the ranks of asylum officers. Many of my colleagues sought reassignment to other divisions within USCIS or even left the agency altogether. When I received that phone call I also began making arrangements to leave what had become a compromised agency.
Only months after I departed in June, the much-beloved Director of the Asylum Division was reassigned by the unlawfully appointed Acting USCIS Director Ken Cuccinelli to a management position in an uncontroversial department of USCIS. It was conceded that he had lamented to his asylum officers in an internal e-mail that it was unfortunate that the troops were being asked to adjust to these new policies with no forewarning or opportunity to adequately train.
It is remarkable that American Federation of Government Employees Union Local 1924, the union that represents asylum officers, has submitted “friend-of-the-court” briefs in numerous lawsuits against the administration’s attempts to implement the MPP program and otherwise curtail and dismantle the asylum program; and that Union Local 1924 President Michael Knowles has testified before Congress in opposition to such policies.
Jeff Session’s replacement AG William Barr has shown himself willing to continue the dismantling of our asylum program. He issued an edict that immigration judges would no longer have the discretion to grant bonds to asylum seekers in custody — clearly another attempt to discourage applicants from seeking shelter in the U.S. through the use of cruelty. This is an issue that is especially dear to my heart, as it has always been my principle that no asylum applicant should remain detained a day longer than necessary for routine administrative procedures. In fact, I testified before the Senate Judiciary Committee in 2013, at a time that comprehensive immigration reform was optimistically expected to be passed, in favor of granting immigration judges additional authority to issue bonds. My proposal wound up in the Senate’s draft legislation, which regretfully was never even taken up by the House. (In a meeting with Senator Marco Rubio’s immigration staffer I was assured that “the Senator is behind your proposals 100%.” During his subsequent presidential campaign in 2016 Rubio claimed he had never been in favor of comprehensive immigration reform). Again, several weeks after Barr’s edict against bond, a federal court blocked Barr’s draconian and heartless ban on conditional release from custody of asylum seekers from taking effect.
From the earliest campaign rallies in 2016, Trump has used fear and hatred of others to divide Americans and energize his base. The forefathers of most European Americans gained entry to the U.S. in exactly the same fashion as all those “illegal aliens” at our southern border; by showing up and asking for admission, at Ellis Island, at a time when there were no immigration controls in place other than routine screening for communicable diseases. Today the vast majority of Americans would not qualify for admission if measured against the standards this administration is trying to implement.
I was a refugee officer in the field at the time of the current President’s election. My colleagues and I were already conducting “extreme vetting” on Syrian, Iraqi, Somali, and numerous other populations, in conjunction with security resources of the CIA, FBI, Defense Intelligence Agency and Pentagon, years before this President decided to use fear as a means of control. My last assignment at the Refugee Affairs Division in 2015, before transferring to the asylum program, was to assist in the heightened vetting of all Syrian applicants at headquarters. Ironically, it is demonstrable that, on average, Syrian and Iraqi migrants to the U.S. are among the highest educated migrants in sciences and technology.
Refugee Admissions Decimated
During the last year of the Obama administration, in the context of the worst international refugee crisis since the end of the 2nd World War, the Obama administration asked that the Refugee Affairs Division increase refugee admissions from the already admirable number of 90,000 in fiscal year 2016 to 110,000 for 2017. However, on the heels of the Muslim ban came the new administration’s pronouncement that rather than 110,000, in fiscal year 2017 the program would be suspended for the rest of the year, thus grounding all refugee officers. . In 2018 the admissions was capped at 45,000 refugees, and it was determined that a ceiling of 30,000 admissions would be set for 2019. At a time when the U.S. should have been manning the bulwarks of refugee protection (Germany received a million refugees in 2015, comparable to the U.S. taking in 4 million) the U.S. effectively withdrew from the field, sending the signal that the U.S. no longer considers itself a leader in the world for refugee protection. A ceiling of 18,000 was set for fiscal year 2020, and this amount was only agreed to after push back from the Pentagon in reference to promises we had made to allies and interpreters working with our troops in the field in Irag, Afghanistan and Syria.
In 2018 Director Cissna also made the shocking announcement that USCIS would close all of its overseas offices, passing numerous tasks onto the State Department and domestic offices. The offices, established over a period of decades in such countries as Kenya, Ghana, South Africa, China, South Korea, Thailand, Mexico and Peru, primarily function as facilitators for family unity and refugee operations. Perhaps the first time that a federal bureaucracy has voluntarily given up turf, but in line with the administration’s seeming loathing for family unity.
The Myth of Skilled Migration
When then Chief of Staff General Kelly, formally DHS Secretary, disparagingly pronounced that most Central American migrants are “rural” migrants, as though of less value than presumably better educated “urban” migrants from white European countries, I took personal offense. My grandfather Grussendorf migrated with his family from a rural village in Lower Saxony, Germany at the end of the 19th Century at a time when there were no immigration controls at Ellis Island. He settled in the farming community of Grand Rapids, Minnesota, where he ran a farm and begat five children, one of whom became a high school math teacher; one became a state judge, one opened a nursery in Duluth, and one, my father, became a highly decorated Marine colonel, former company commander at the WWII landings at Saipan, Iwo Jima, and Okinawa. (I was born at Camp Pendleton). The state judge’s children included Cousin Benny Grussendorf who became Speaker of the House in the Alaskan Legislature. My father’s children included a Navy Captain and minister, a Navy enlisted man and transportation professional; a political activist, and an immigration judge. My brother the Navy Captain’s children include an Air Force flight surgeon and base hospital director; a veterinary, and a multi-lingual translator with her own business in France. All of these offspring were imbued with strong “rural” family values. That’s how migration works.
The idea of skilled-based migration, to be administered by a point system involving education, employment background, and language skills, isn’t all that bad in and of itself. Our close alleys Canada, the U.K., Australia and New Zealand all administer a version of this skills-based migration. The problem is the suggestion to eliminate family-based migration, when clearly the vast majority of our nation’s people, including the President’s own family, have benefited from it. The better idea is to double the current admissions level of permanent residents, half to be drawn from a skills-based system. It is the unnaturally low numbers of annual permanent resident admissions that is partly responsible for the log-jam of our immigration system, in today’s world where there is such an interest in immigration to the U.S., and given that our otherwise native-born population is in decline.
We must recognize that the recent surge at our southern border is not some kind of existential challenge to the nation’s existence, as seen in a vacuum, but rather only one component of the world-wide refugee crisis, a symptom of wars and world-wide insecurity. The long-term solution to any refugee crisis is always peace and prosperity in the country/region that is generating the refugees. Only peace and stability in Syria and northern Africa can allay the human waves of refugees into Europe. Only a Marshal-type program for the northern triangle countries, coupled with short term humanitarian protection for those fleeing eminent death, can resolve the crisis at our southern border.
And finally, regarding the present state of the U.S. Immigration Court system under this white nationalist administration, I’d like to quote my friend and colleague, Judge Paul Schmidt:
Once upon a time, there was a court system with a vision: Through teamwork and innovation, one of the world’s best administrative tribunals guaranteeing fairness and due process for all. Two decades later, that vision has become a nightmare. (…)
Today, the U.S. Immigration Court betrays due process, mocks competent administration, and slaps a false veneer of “justice” on a “deportation railroad” designed to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting.
It cruelly betrays everything our country claims to stand for and baldly perverts our international obligations to protect refugees. In plain terms, the Immigration Court has become an intentionally “hostile environment” for migrants and their attorneys.
As Paul points out, beyond all of the regime’s racism, illegality, and immorality that has already been exposed in the media, the deep corruption, cowardice, and cruelty of those carrying out the program is simply stunning! It’s precisely how authoritarian, anti-democracy, illiberal regimes of the past like Nazi Germany, Soviet Russia, and Mao’s China operated.
Inflicting “trauma for deterrence” on vulnerable humans is a “war crime” and a “crime against humanity,” plain and simple — regardless of the unlikelihood that regime’s many “perps” will be brought to justice within their lifetimes.
To those who doubt it, when the pandemic subsides, take a tour of the Holocaust Museum. The disgraceful conduct of the German judiciary and civil service is eerily similar to what Paul describes at DHS and EOIR.
We also must remember that despite being well-aware of the Trump/Miller racist-motivated immigration agenda, and the patent falseness of the legal and factual pretexts cooked up by the regime and its ethically challenged lawyers to provide “thin cover” for illegality and inhumanity, a Supremes’ majority improperly intervened to overrule lower Federal Courts and “greenlight” gratuitous cruelty and abuses of humanity! This process, known as “Dred Scottification” (“dehumanization of the other”) has carried over into the Supremes’ majority’s disgraceful mistreatment of African Americans, Hispanic Americans, and other minorities in our society. It’s one of the key reasons why we have actually moved further away from racial equality and racial harmony in our society since the advent of the far-right judiciary.
Paul also exposes one of the biggest “shams” advanced by the racist right and their congressional supporters: That we must build an Immigration Court capable of deporting everyone in the U.S. without authorization. To state the obvious, this would be a practical impossibility, as well as an economic and social disaster — destabilizing industries and communities throughout the U.S., at a high cost, with no overall benefit.
It’s insane to charge the Immigration Courts with deporting everyone! That inevitably leads to mindlessly and exponentially increasing the number of judges without thinking about the training, support, technology, and wise policies necessary for them to operate successfully, fairly, and efficiently. Moreover, at some point, aimlessly increasing the number of judges without fixing the disgraceful deficiencies in the current system merely adds to the chaos, disorder, and the gross inconsistencies for which the system has become notorious.
Obviously, the system must be fixed before a rational decision can be made on whether or not to expand it. Fixing the current system also lays the important groundwork for the necessary creation of an independent Article I Immigration Court.
No, the answer is to invest in fixing the current system to get it operating, as it originally was intended, as a high quality, modern, efficient court system that guarantees fairness and due process for all.
With approximately 500 Immigration Judges already on board (not, of course, all the best qualified judges to carry out the mission — but that’s a problem for later), the reasonable annual capacity of the system is around 250,000 (500 judges x 500 cases/year) to 300,000. That means that more than one million of the current “deadwood” cases currently being warehoused on the EOIR docket by politicos at EOIR and DHS with no practical plan in place for ever completing them, must be removed and returned to DHS.
That’s actually a job for a new, non-racist, professional DHS. But, given past spotty to downright contemptuous performance by DHS field officials, the Immigration Judges must be given strong authority to, where necessary, close and remove cases even in the face of DHS opposition.
This means, of course, reversing “Gonzo Apocalypto” Sessions’s absurdly wrong decision in Castro-Tum. But, return to the prior status-quo is not enough!The BIA and the Immigration Judges must be empowered to take even more aggressive actions to close cases when necessary to do justice and to force the DHS to respect and comply with docket capacities.
Then, as Paul suggests, like all other law enforcement agencies in the U.S., DHS enforcement must be required to develop strategies and prioritize cases in a manner that will not exceed the 250,000 per year capacity of the Immigration Courts. A large scale legalization program for those already here, a much more robust overseas asylum program, particularly in the Northern Triangle, and more “user friendly” legal programs to bring in needed workers, on either a temporary or permanent basis, would be great starting points to “rationalizing” the immigration system.
We thereby could end “Aimless Docket Reshuffling” as it has been practiced and expanded by DOJ & DHS politicos for the past two decades while taking the pressure off the Immigration Courts to do anything other than their only and only mission: through teamwork and best practices, guaranteeing fairness and due process for all who come before these courts.
The key to making this happen: Immediate disempowerment of the deadly ongoing “Clown Show” 🤡☠️⚰️ in EOIR “management” and at the BIA and replacing them with members of the NDPA: experts in asylum law, due process, practical scholarship, problem solving, and best practices. Then, and only then, will we see the restoration and progressive advancement of due process and humanity in the disgracefully broken U.S. Immigraton Courts. Without immediate EOIR reform, there can and will be no “equal justice for all” in the U.S. justice system! And, that’s bad news for all of us!
The BIA fatally erred in deciding that Officer Bedoya had not established past persecution because the various threats were merely “written” and because Bedoya was never physically approached by FARC members. See Zavaleta-Policiano, 873 F.3d at 247; Crespin-Valladares, 632 F.3d at 126-27. We have recognized that “the threat of death alone constitutes persecution,” see Tairou v. Whitaker, 909 F.3d 702, 708 (4th Cir. 2018), and we have never required that a petitioner be physically harmed or personally approached
10
in order for the threats to qualify as persecution.4 Moreover, our precedents in Zavaleta- Policiano and Crespin-Valladares demonstrate that death threats may be written. Indeed, written home-delivered death threats and text messages can easily be more menacing than verbal threats, in that they show that the writer and sender knows where his target lives and the relevant personal cellphone number.
The BIA also emphasized the period of time between the threats that Officer Bedoya received in 1996 and those he received in 2013. That period, however, is not dispositive of Bedoya’s asylum claim, in that he has clearly shown past persecution on the basis of the threats he received in 2013. The earlier incident in 1996 — where Bedoya’s friend Correa was killed for trying to protect Bedoya from FARC — simply bolsters Bedoya’s asylum claim and highlights FARC’s “penchant for extracting vengeance.” See Crespin-Valladares, 632 F.3d at 126-27. Moreover, if FARC is targeting former Colombian police officers for their past actions, there is inevitably going to be a time gap between the actions of such officers and when an officer retires.
In sum, Officer Bedoya received multiple threats of death and harm to himself and his family, and the BIA’s determination that Bedoya had not suffered past persecution was manifestly contrary to the law and constituted an abuse of discretion. See Tairou, 909 F.3d
4 Notably, in a recent unpublished opinion, we emphasized that “[w] Lopez-Orellana v. Whitaker, 757 F. App’x 238, 242 (4th Cir. 2018).
11
e have never
adopted a requirement that an [asylum] applicant suffer physical harm [in order] to show
past persecution.” See
at 708; Crespin Valladares, 632 F.3d at 126. We therefore reverse the BIA’s ruling that Bedoya failed to establish that he was subject to past persecution.
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Notably, the key 4th Circuit precedent that the BIA ignored here, Crespin-Valadares v. Holder, was my case at the Arlington Immigration Court. I had granted asylum, the BIA reversed me, and the 4th Circuit reversed the BIA. In other words, I was right and the BIA was wrong! But hey, who’s keeping score?
The continuing abuses by the BIA of asylum law and controlling Circuit precedents favoring asylum grants is in the “when will they ever learn” category. Instead of carefully and forcefully building a body of case law amplifying Crespin-Valladares and applying it broadly to insure more expeditious asylum grants at the “retail level” of our system — the Asylum Office and the Immigration Courts — the BIA insists on the illegal (not to mention immoral) “any reason to deny” approach improperly promoted by White Nationalist racist restrictionist AGs Sessions & Barr.
EOIR could function, as it was intended, as a model of scholarship, due process, fundamental fairness, and equal justice insuring the granting of the generous protection described by the Supreme Court in Cardoza in many more cases. EOIR could become a model of humane, practical, efficient, best practices jurisprudence that would reduce dockets by promoting correct results at the Asylum Office and trial levels and taking pressure off of the Circuit Courts by minimizing improper denials of relief that engender unnecessary litigation.
But, that’s not going to happen until the current group of deficient, biased EOIR Executives and BIA Judges is replaced by qualified “practical scholars” from the NDPA who are experts in asylum law and will ensure that necessary, life-saving protection is granted wherever possible.
WASHINGTON — Owning a small business in Cameroon selling French products was enough to trap the young man between the English-speaking minority and French-speaking majority government in the warring West African nation.
In July 2019, he was kidnapped by armed rebels, who tortured him for months in the jungle, demanding $10,000 ransom from his family, he said. Then, shortly after they paid, government forces arrested and tortured him for another month — for “financing” the separatists.
But what shocked him most, he said, was that after he escaped through a dozen countries and claimed asylum at the U.S.-Mexico border, American officials detained him for almost a year, then threatened and assaulted him and put him in solitary confinement before deporting him back to Cameroon in late October.
“At that point, it’s like the end of the world,” he said, requesting anonymity because he is in hiding. “It’s a death plane. Even if there was a means to make that plane crash that day, we would’ve done it.”
During President Trump’s last weeks in office, Black and African asylum seekers say, the administration is ramping up deportations using assault and coercion, forcing them back to countries where they face harm, according to interviews with the immigrants, lawyers, lawmakers, advocates and a review of legal complaints by The Times.
Immigrations and Customs Enforcement and Homeland Security headquarters did not respond to requests for comment.
The allegations have shed light on a group of immigrants that has been targeted by the president’s rhetoric and his policies to restrict asylum, but that is often overlooked. Relative to Mexicans and Central Americans, asylum seekers from Africa and the Caribbean make up a small but fast-growing proportion of the more than 16,000immigrants in detention today across the United States, particularly in the for-profit prison archipelago in the American South that has proliferated under Trump.
Despite Trump’s all-out assault on asylum, explicit bias against Black asylum seekers, and border closures under the pretext of the pandemic, some 20,000 Haitians and Africans have journeyed from South America, largely on foot, to claim protection at the U.S.-Mexico border during Trump’s time in office, according to Mexico’s migration statistics.
President-elect Joe Biden has said he will end the use of for-profit immigration detention, reverse many of Trump’s policies that restrict asylum, and reform the U.S. immigration system. But Trump has left his successor with decades-long private-prison contracts; more than 400 executive actions on immigration; a record immigration court backlog of more than 1.2 million cases; and record-high asylum denial rates, reaching around 70% last month.
Since October, lawyers have filed multiple complaints with the Homeland Security Department’s Office of Civil Rights and Civil Liberties and Inspector General’s Office documenting the cases of at least 14 Cameroonian asylum seekers at four detention facilities in Louisiana and Mississippi who say ICE subjected them to coercion and physical abuse to force their deportations.
The complaints call for investigations and an immediate halt to the deportations, arguing that officials are violating U.S. and international law, including due process rights and the Convention Against Torture.
In that time, more than 100 asylum seekers also have reported ICE using or threatening force to put them on deportation flights, in particular to Haiti and West Africa, according to lawyers and calls received on a national immigration detention hotline run by the nonprofit Freedom for Immigrants.
The Times has interviewed nine asylum seekers, most from Cameroon, others from Haiti or Ethiopia, many of whom requested anonymity for fear of retaliation. Five have been deported in the last month, and three remain detained after ICE attempted to remove them in recent weeks. One Cameroonian was released Monday after roughly 20 months in immigration detention.
They include teachers, law students, mothers, fathers, a 2-year-old boy and a 3-year-old girl, who have fled corrupt governments, political persecution, gang rape, torture by security forces, assassination attempts and arbitrary detention.
For many, deportation from the United States is a death sentence.
“I came to U.S. because I need to save my life because my life is in danger,” said a high school teacher who fled Ethiopia in 2017 after being jailed and beaten for supporting an opposition political party and student protests.
The teacher claimed asylum at the San Ysidro Port of Entry on the California-Mexico border in 2018. But last month, while being held at the Adelanto ICE Processing Facility, after he refused to sign deportation papers, six ICE officers assaulted and forcibly fingerprinted him, he said, then sent him to the medical clinic.
His asylum case had been denied but was pending an appeal. Two days after the assault, he said, officers told him he’d be transferred. Instead, they took him to Los Angeles International Airport and deported him to Ethiopia, where he was immediately rearrested and now awaits a court hearing.
“ICE is something like racist because they are doing excessive force,” the teacher said. “In [a free] country I don’t expect these things.”
Many asylum seekers are well aware of Trump’s disparagement of Black immigrants. And many believe that ICE officials and detention guards share his prejudices.
As Trump leaves office, the “pattern and practice of physical and verbal coercion” by ICE officers and guards to force Black asylum seekers to sign deportation papers is worsening, according to the complaints filed to Homeland Security’s Civil Rights and Civil Liberties and Inspector General’s offices.
Beyond threats, the tactics include shackling the immigrants, stripping them naked, holding them down and choking them, resulting in injuries, according to the complaints. Officials often committed the assaults out of sight of facility cameras, and in several instances filmed the assaults themselves, the complaints state.
Immigration detention is civil, not criminal, and ICE has the discretion to release detainees at any time. Most of the asylum seekers have family in the United States, and all have exercised their right to seek protection under U.S. law — meaning that many are being detained for years even though they have U.S. sponsors and haven’t committed a crime.
Of the deportation flights to West Africa in October and November, at least a dozen on board had pending cases, according to lawyers.
In interviews with The Times, the asylum seekers said they sought protection in the United States because they believed it was the only place where they could be safe and free.
“We believe in freedom and in this country as a country that provides protection for people who are running for their lives — and instead upon arrival, for us to be imprisoned and caged?” said a Haitian mother detained with her husband and 2-year-old son at a Pennsylvania ICE facility.
Police officers in Haiti had targeted her and her husband for their involvement with the political opposition, beating and sexually assaulting her while she was pregnant, according to sworn legal statements. She miscarried before she fled.
Despite many countries shutting their borders amid the COVID-19 pandemic, ICE has recently increased the pace of deportations, including sending a flight to West Africa just days after the Nov. 3 election. In October, there were nearly 500 ICE Air Operations flights, a more than 10% increase since September, according to Witness at the Border. More than 1,300 Haitians were deported, said Guerline Jozef, president of the Haitian Bridge Alliance in California.
In recent years, Cameroonians have increasingly accounted for one of the largest groups of what U.S. officials call “extracontinental” migrants, as the conflict in Cameroon has widened.
One man, going by the initials K.S., said he fled because officials in Cameroon had asked him to work with them to capture Anglophone people. He refused; his wife and three children are from the English-speaking side.
He had been detained at the Imperial Regional Detention Facility east of San Diego for over two years when the final appeal on his asylum claim was denied — making him so depressed that he spent a week under medical observation.
He said the ICE officer assigned to his case advised him to sign paperwork agreeing to be deported. The officer said that if the Cameroonian government didn’t accept ICE’s request to take him back, as was likely, he would be released to his U.S. sponsor after 90 days.
On Oct. 6, after 97 days had passed, six guards stood by as K.S. was ordered to pack up his things to leave.
“I didn’t think about deportation,” he said. “It was the last thought on my mind. They lied to me.”
ICE officers put him on a flight to Louisiana that picked up other Cameroonian deportees and then dropped the group off at the Prairieland Detention Facility in Texas. On Oct. 13, K.S. said, he was cuffed and taken to the airport, where he boarded a flight with about 100 other African migrants.
He watched as ICE officers strapped in three men from their shoulders to their ankles to restrict their movement and covered their heads with bags, then laid them across rows of seats in the plane.
Just as the flight was about to take off, K.S. and three other men were removed and taken back to Prairieland, without explanation.
Three weeks later, on Nov. 11, K.S. was back on a deportation flight with 27 other men. One, who was known to have heart problems, began crying that his chest was burning, K.S. said, an account confirmed to The Times by another passenger.
ICE ultimately removed the man and put him in an ambulance.
In contrast to Central Americans largely fleeing a lethal combination of gang violence, corruption, poverty and climate change, many Haitians and Africans have more traditional asylum claims that, at least in theory, better fit the categories outlined by an outdated U.S. asylum system largely conceived in the post-World War II era: persecution based on race, religion, nationality, political opinion or social group.
Yet Black and African asylum seekers are less likely than other immigrants to be released on parole or bond, or to win their asylum cases — a racial disparity that has worsened under Trump, according to lawyers and government data.
From September 2019 to May 2020, comparing hundreds of release requests from detained Cubans, Venezuelans, Cameroonians and Eritreans, the non-Africans had grant rates roughly twice as high, said Mich Gonzalez, senior staff attorney at the Southern Poverty Law Center. Fewer than 4% of Cameroonian parole requests were granted.
ICE is also increasingly blanket-denying Black immigrants’ release for clearly bogus reasons, said Anne Rios, a supervising attorney in San Diego with the nonprofit Al Otro Lado.
For example, ICE rejected one request by claiming an applicant’s identity hadn’t been established, when the agency had the applicant and his identification documents in its custody, according to parole applications and denials provided by Rios and reviewed by The Times.
U.S. officials have faced more impediments to deporting Haitian and African asylum seekers due to limited diplomatic relationships with their homelands and more complicated deportation logistics exacerbated by coronavirus closures abroad.
But that hasn’t stopped them. The Trump administration has at times put enforcement before its own stated foreign policy, contradicting the State Department and U.S. law barring officials from returning people to harm or death.
Take Cameroon. Last year, the U.S. pulled back some military assistance amid reports of atrocities committed by security forces trained and supplied by the U.S. military for counterterrorism. The State Department travel advisory for Cameroon warns of “crime,” “kidnapping,” “terrorism” and “armed conflict.”
Rather than obtaining valid Cameroonian passports, ICE officials have issued Cameroonian deportees “laissez-passer” travel documents that are invalid, or even signed by individuals in the United States purporting to be Cameroonian officials, according to the October complaint.
. . . .
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Read the rest of the article at the link.
I understand the incoming Biden-Harris Administration’s desire to avoid getting entangled in the muck of the overt corruption, racism, and countless crimes of the outgoing regime.
Nevertheless, I doubt that institutional racism can be eliminated, equal justice under law achieved, and racial harmony realized without dealing in some way with the many crimes against humanity committed in the name of racism, hate, and “Dred Scottification” by the regime and their cronies, toadies, and enablers at DHS, DOJ, DOS, and elsewhere in government.
Also, to state the obvious, the types of cases described by Molly and Andrea could have been rapidly granted at the Asylum Office level in a functioning system. That’s a critical first step in eliminating the largely self-created backlog in the Immigration Courts, ending counterproductive litigation by the Government, and largely “zeroing out” the unnecessary and wasteful “New American Gulag” (“NAG”) of bogus “civil” detention largely abusively applied for illegal punishment and deterrence.
Fair and rational application of immigration laws and sane policies also make for efficient, fiscally responsible government. Compare that with the current kakistocracy which has run up record deficits, created endless backlogs, and left behind far, far more problems than they solved. Indeed, never has a gang of empowered malicious incompetents showed so little ability to recognize, promote, or govern in the common good.
Due Process Forever! Complicity in Crimes Against Humanity, Never!
When I wasn’t visiting border, I was trying to understand how the U.S. government could put in place a policy that seemed the very antithesis of what seeking asylum was supposed to be, as articulated in Refugee Act of 1980. I had spent my time before coming to Refugees International researching the writing and passage of that law and the development of the contemporary asylum system since 1980. The Remain in Mexico policy is unprecedented. The U.S. government claims the authority for it lies in a provision of the 1996 immigration law that allows for the return of certain applicants for admission to contiguous territory to await processing. I began researching this provision and it became clear that it was not intended to apply to asylum seekers.
In support of a challenge to the Remain in Mexico program in California federal court, Refugees International and I, with attorneys from Sidley Austin LLP, submitted this brief describing why the Refugee Act forbids the program, a reality that the 1996 law does not change. The argument of the brief is that, when the 1980 Refugee Act was enacted, it was intended to establish a uniform process for consideration of asylum claims that would preclude this return to Mexico approach. A lynchpin in the argument is that there were two versions of the asylum provision of the Refugee Act—one proposed by Congresswoman Holtzman and one by Senator Edward Kennedy. Only the House version provided that asylum seekers at a land border be accorded the same ability to seek asylum as those already in the country. When, in conference, Holtzman’s version was accepted, Congress made a conscious choice in pursuit of uniformity in consideration of asylum requests: that the United States would treat asylum seekers at the border the same as it would all others. And the language mandating uniform treatment of asylum seekers in the 1980 Refugee Act was reiterated in the 1996 immigration law.
. . . .
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The case is Immigrant Defenders Law Center v. Wolf, USDC, C.D. CA.
Read Yael’s intro, her outstanding brief prepared by Sidley Austin LLP, and the “Holtzman Papers” at the above link.Notably, Sidley Austin is one of the great firms that have helped our Round Table with amicus briefs! It’s what happens when you connect the dots among history, research, social justice, and the law. It’s why the Liberal Arts are the wave of a better future and a better Federal Judiciary! It’s all about perspective and problem solving!
Thanks Yael for all that you, Refugees International, and great pro bono lawyers like Sidley Austin do for justice and humanity.
The real problem here: A disgraceful Supremes’ majority 🏴☠️ that improperly “greenlighted” this totally illegal, racist-inspired, “crime against humanity,” cooked up by neo-Nazi hate monger Stephen Miller ☠️🤮, after it had properly and timely been enjoined by lower Federal courts. And, a complicit EOIR that consistently fails to provide due process and justice to asylum seekers is a huge part of the problem.
Unlike the Supremes, the EOIR Clown Show 🤡 can be removed and justice at all levels improved just by a putting the right experts from the NDPA in charge right off the bat.
Democratic Administrations, particularly the Obama Administration, have a history of not getting the job done when it comes to achievable immigration reforms within the bureaucracy. If you don’t want four more years of needless death, disorder, demeaning of humanity, and deterioration of the most important “retail level” of our justice system, let the incoming Biden Administration know: Throw out the EOIR Clown Show and bring in the experts from the NDPA to turn the Immigration Courts into real, independent courts of equal justice and humanity that will be a source of pride, not a deadly and dangerous national embarrassment!
Contrary to all the mindless “woe is me” suggestions that it will take decades to undo Stephen Miller’s (is he really that much smarter than any Democrat politico?) racist nonsense, EOIR is totally fixable — BUT ONLY WITH THE RIGHT FOLKS FROM THE NDPA IN CHARGE!
It’s only “mission impossible” if the Biden-Harris Administration approaches EOIR with the same indifference, lack of urgency, and disregard for expertise and leadership at the DOJ that has plagued past Dem Administrations on immigration, human rights, and social justice.
It won’t take decades, nor will it take zillions of taxpayer dollars! With the right folks in leadership positions at EOIR, support for independent problem solving (not mindless micromanagement) from the AG & DOJ, and a completely new BIA selected from the ranks of the NDPA, we will see drastic improvements in the delivery of justice at EOIR by this time next year. And, that will just be the beginning!
No more clueless politicos, go along to get along bureaucrats, toadies, and restrictionist holdovers calling the shots at EOIR, America’s most important, least understood, and “most fixable” court system! No more abuse of migrants and their representatives! No more ridiculous, “Aimless Docket Reshuffling” generating self-created backlogs! No more vile and stupid White Nationalist enforcement gimmicks being passed off as “policies!” No more “Amateur Night at The Bijou” when it comes to administration of the immigrant justice system at the DOJ under Dems!
Get mad!Get angry! Stop the nonsense! Tell every Democrat in Congress and the Biden Administration to bring in the NDPA experts to fix EOIR! Now! Before more lives are lost and futures ruined! It won’t get done if we don’t speak out and demand to be heard!
This is our time! Don’t let it pass with the wrong people being put in charge — yet again! Don’t be “left at the station” as the train of immigrant justice at Justice pulls out with the best engineers left standing on the platform and the wrong folks at the controls! Some “train wrecks” aren’t survivable! 🚂☠️⚰️
Dumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under license“Sheltering in Cages” by John Darkow Reproduced under licenseJeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com Republished under license
CRUELTY TO migrant children, a trademark of the Trump administration’s immigration policy, did not cease when officials reversed course in the face of public outrage two years ago and stopped wrenching toddlers, tweens and teens from their parents — with no plan or process to reunite them. It has continued apace under cover of the pandemic, which the White House has used as an all-purpose pretext for ignoring child-protection laws and diplomatic agreements governing asylum, and, without even a nod to due process, expelling unaccompanied children who cross the border seeking refuge.
A federal judge has now halted that practice even as he acknowledged the administration’s far-reaching powers in the midst of a public health emergency. Those powers are broad, U.S. District Judge Emmet G. Sullivan ruled, but do not enable the government to send minors packing without affording them a chance to have their asylum claims heard.
At least 13,000 children have been detained by Border Patrol officers and swiftly thrown out of the country under an emergency decree that has effectively sealed off the southern border to most migrants since the spring. Administration officials justified the measure in the name of protecting the country from a potential influx of migrants carrying the coronavirus — but performed no testing, and provided no data, to substantiate their stance.
Given infection rates in Mexico and Central America, it may be reasonable to assume that some migrants, including unaccompanied minors, might have contracted covid-19. It may also be the case, however, as the ACLU argued in court, that the practice of expelling young migrants actually exposes U.S. border authorities to more risk — in the course of holding them while flights are arranged to their home countries in Central America or elsewhere — than they would otherwise face if the migrants were placed in shelters that have the capacity to adopt social distancing and other precautions. Judge Sullivan, for his part, said the government had asserted its “scientific and technical expertise” to justify its policy of evicting young migrants — but provided none by way of actual evidence.
As it happens, it occurred to at least some administration officials, early on in the pandemic, that migrant children deserved some special consideration. When the policy of suspending asylum was first rolled out, children who crossed the border were exempted. That was quickly reversed, however, with a spokesman saying that minors would be returned to their countries of origin on a “case by case basis.” In the ensuing months, however, virtually all have been expelled.
Anti-trafficking and other laws provide for protections for unaccompanied minors who arrive in this country. The administration has seized on the pandemic to disregard those, along with other long-standing measures and practices that set procedures for migrants seeking refuge here. A more humane approach, in line with American traditions and values, would have established a process for testing and quarantining, at least for migrant children, as they pursued asylum claims. But humane policy is anathema to the Trump administration, and the result is thousands of children who have been subjected to unwarranted hardship and risk.
*********************
Remembers, the victims are largely dead, deported, or still suffering! The “perps” — including the “Perp in Chief,” “Gruppenfuhrer Miller,” Jeff “Gonzo Apocalypto” Sessions, “Wolfman the Illegal,” and “Billy the Bigot” remain at large, even profiting from and bragging about their “crimes against humanity.” This is a “functioning democracy?” No way!
We’ve all been subjected to the disingenuous writings of pundits babbling on about the resilience of American democracy in the face of a fascist president and his corrupt anti-democracy party of cowards and enablers. Hogwash!
Make no mistake about it, American democracy is on the ropes! Basically, we’re watching a corrupt President who lost the election by over 6 million votes and 74 electoral votes engage in systematic frivolous, abusive, baseless litigation intended to destroy our nation, undermine our national security, and disenfranchise voters. It’s a disgusting, overtly racist, dishonest performance that would have any other individual in America and his motley band of unethical lawyers in jail for contempt and conspiracy to obstruct justice! But, Trump and his cronies continue to operate outside the law!
We owe our existence as a nation less to any “structural integrity” and much more to a relatively few courageous, smart, highly motivated members of the resistance: immigration, human rights, and civil rights lawyers; African American women; non-right-wing journalists; Democratic legislators; scientists and medical professionals; a limited number of Federal Judges, mostly at the District Court and Immigration Court levels (and specifically excluding any current BIA Member, EOIR “Manager,” or Supreme Court Justice not named Sotomayor, Kagan, and (sort of) Breyer); courageous DACA kids; and some Federal Career Civil servants not working at ICE or CBP.
The “resilience of American institutions” view is largely that of a privileged minority who haven’t been deported to possible torture or death without any process at all (let alone “due” process), haven’t been illegally separated from beloved family members, aren’t rotting in private prisons (the “New American Gulag”) for the “crime” of seeking justice, aren’t struggling with unemployment or difficulty putting food on the table while Moscow Mitch and his elites focus on confirming unqualified Federal Judges, haven’t had family members shot by the police, haven’t had family members unnecessarily suffer and die because of the worst President in U.S. history’s maliciously incompetent failure to provide leadership and any systematic strategy for controlling a pandemic, and haven’t had to put their lives and professional reputations on the line in a failing Justice system that has enabled grotesque abuses by the likes of Jeff “Gonzo Apocalypto” Sessions, Billy the Bigot Barr, Noel Francisco, and the rest of their band of unethical Government lawyers.
The Biden Administration must do a thorough housecleaning of the corrupt DHS and DOJ bureaucracies that carried out the illegal, immoral, racist, White Nationalist agenda developed by neo-Nazi Stephen Miller and his cowardly gang of brownshirts!
And, as a nation, we need to think carefully about the implications of a life-tenured Supreme Court majority that, since their initial feckless performance on the “Muslim Ban” cases, time and time again failed to forcefully and unanimously stand up for our democracy, human decency, and those defending them in the face of overt, racism and hate driven, Executive tyranny! A Supremes’ majority that has disgracefully and spinelessly embraced the “Dred Scottification” of “the other” (mostly immigrants and those of color). It’s not rocket science! And some of our “elite law schools” seemed to have forgotten to teach “Con Law 101” and “Basic Ethics” to aspiring right wing judges!
It’s less about institutions than it is about the courageous individuals who uphold them! And, our future depends on the Biden-Harris Administration putting these folks “in the game” to insure that an unmitigated disaster like the Trump regime, it’s rampant illegality and inhumanity, and its “malicious incompetence” can never, ever, happen again! And, we must at least start the process of developing a better and more courageous Federal Judiciary for the future!
Due Process Forever! Complicity in the face of tyranny, never!
As this Court has recognized, “when [an] alien appears pro se, it is the IJ’s duty to ‘fully develop the record.’” Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002) (quoting Jacinto v. INS, 208 F.3d 725, 733-34 (9th Cir. 2000)). Despite this long-recognized obligation, the record in this case demonstrates that this duty is not always fulfilled; and that the consequence may be unfairness and injustice to the pro se petitioner who is unable to develop the record without guidance and assistance. We respectfully submit that this Court should use this case to provide much-needed guidance to IJs on the scope of their duty to work with pro se respondents to elicit the information necessary to develop the factual record. Based upon our own extensive experience, we are of the view that this can be done efficiently and effectively by conscientious IJs, so long as the rule that they are required to do so is clear.
******************
Thanks so much to out “Team of Pro Bono Heroes” at Sullivan & Cromwell, NY:
Philip L. Graham, Jr.
Amanda Flug Davidoff
Rebecca S. Kadosh
Joseph M. Calder, Jr.
This regime has appointed mostly judges lacking experience representing individuals in Immigration Court and then compounded the problem with:
Mindless “haste makes waste” enforcement gimmicks (often supported by knowingly false or misleading narratives) imposed by political hacks at DOJ and Falls Church;
A BIA lacking expertise and objectivity that instead of focusing on due process for those in Immigration Court, spews forth “blueprints for denial and deportation” without regard for statutory, Constitutional, and human rights;
A system that has elevated “malicious incompetence” and “worst judicial practices” to a “dark art form.”☠️
TIME FOR COURAGEOUS NEW IMMIGRATION LEADERSHIP!
By Paul Wickham Schmidt
It’s time for the “EOIR Clown Show” in Falls Church to go! Bring in competent jurists and administrators from the NDPA: practical scholars and problem solvers with real life skills developed by saving lives from this broken and biased system. Real jurists with expertise in human rights and courage, who will make due process, fundamental fairness, humane values, and “best judicial practices” the only objectives of the Immigration Courts. Jurists who will courageously resist political interference and improper and unethical weaponization of the Immigration Courts by any Administration.
Let the incoming Biden-Administration know that you won’t accept failed “retreads” from the past and “go along to get along” bureaucrats running and comprising what is probably the most important and significant court system in America from an equal justice, social justice, constitutional development, and saving human lives standpoint.
This is the “retail level” of our justice system: Thefoundation upon which the rest of our legal system all the way up to a tone-deaf, flailing, failing, and generally spineless Supremes stands! This is a court system that the Biden Administration can fix without Mitch McConnell!
The members of the NDPA are the ones who have been fighting in the trenches (and at the borders) to save lives, advance social justice, insure equal justice for all, end institutional racism, and preserve our democracy in the face of a tyrannical, unscrupulous, corrupt, racially biased, anti-democracy regime and its enablers! Many have sacrificed careers, health, not to mention financial security in this fight!
Don’t let those who watched from the sidelines, above the day-to-day fray, or were part of the problem swoop in and take control after the battle has been won!
Get mad! Get vocal! Get active! Call everyone you know in the incoming Administration! Demand that the NDPA and its members be given the leadership roles they have earned and deserve in remaking EOIR and reforming a thoroughly corrupt, politicized, and dysfunctional immigration bureaucracy across our Government!
Don’t let the Dems turn their back on achievable reforms and “shut out” the reformers and problem solvers in the advocacy sector (who have “carried the water” for Dems for decades) as has been the case in the past! Don’t let the mistakes and short-sightedness of the past destroy YOUR chances for a better future!
Don’t let timidity, ignorance, indifference, and fear of “rocking the boat” in the name of justice, due process, and human dignity replace “malicious incompetence” in Government!
Due Process Forever! Same old, same old, never! It’s time for real change and reform! It’s YOUR time to shine! Let YOUR voices be heard!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”BIA Members Unwind After Harassing Another Expert, Overruling Circuit Court, & Aiding Their “Partners” At ICE In Demeaning Justice https://www.flickr.com/photos/rasputin243/ Creative Commons License
Granting Juan Mauricio Castillo’s petition for review of the Board of Immigration Appeals’ denial of his application for protective status pursuant to the Convention Against Torture, and remanding, the panel held that the Board erred in giving reduced weight to the testimony of Dr. Thomas Boerman, a specialist in gang activity in Central America and governmental responses to gangs.
Castillo is a former gang member with tattoos who fears torture by gangs and/or Salvadoran officials because of his former gang memberships, his criminal conviction, and his later cooperation with law enforcement against La Mara Salvatrucha or MS-13. In a prior petition, the same panel concluded that the immigration judge and the Board improperly discounted Dr. Boerman’s testimony.
The panel addressed two initial matters. First, the panel stated that the Board’s rejection on remand of the panel’s prior interpretation of the immigration judge’s decision was ill-advised, explaining that its prior disposition was not an advisory opinion, but a conclusive decision not subject to disapproval or revision by another branch of the federal government. Second, the panel rejected the Board’s reliance on Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007), to support its conclusion that Dr. Boerman’s testimony should be given reduced weight, because Vatyan addressed an IJ’s
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
CASTILLO V. BARR 3
discretion to weigh the “credibility and probative force” of an authenticated document, whereas the issue in this case involved the testimony of an expert that the agency had ostensibly concluded was fully credible.
Even assuming the agency could accord reduced weight to Dr. Boerman’s testimony and declaration, the panel disagreed with the Board’s new justifications. First, the panel rejected the Board’s reliance on alleged inconsistencies regarding Dr. Boerman’s familiarity with Castillo’s prison gang, where Dr. Boerman explicitly wrote in his declaration that his comments on Castillo’s prison gang were based on facts provided by Castillo, and the Board did not cite any reason to doubt Castillo’s testimony regarding rival gangs.
Second, the panel disagreed with the Board’s conclusion that Dr. Boerman’s testimony did not warrant full weight because he did not submit a copy of a video referenced in his testimony, where the video was neither the sole nor primary basis for his opinion, and the Board failed to explain why the absence of one video diminished the weight of Dr. Boerman’s expert opinion, when his opinion had an independent factual basis.
Finally, the panel concluded that the Board’s decision to give Dr. Boerman’s opinion reduced weight, because it was not corroborated by other evidence in the record, was erroneous. The panel observed that the country report did provide support for Castillo’s claim, and it noted that Dr. Boerman’s expert testimony was itself evidence that could support Castillo’s claim.
The panel remanded to the Board, directing it to give full weight to Dr. Boerman’s testimony regarding the risk of
4 CASTILLO V. BARR
torture Castillo faces if removed to El Salvador. The panel explained that if the Board determines once again that Castillo is not entitled to relief, it must provide a reasoned explanation for why Dr. Boerman’s testimony is not dispositive on the issue of probability of torture. The panel further explained that once it gives full weight to Dr. Boerman’s testimony, the remaining issue for the Board is to determine whether Castillo has established the government acquiescence element of his CAT claim.
***********
Essentially, EOIR has been unethically misusing their authority to harass Dr. Boerman and respondents’ advocates by systematically teaming up with ICE to devalue and defeat their efforts. Remarkably, this is even though Dr. Boerman and the advocacy community are “busting their tails” trying to help the system function properly and achieve justice! How screwed up, perverted, and cowardly is that?
Obviously justice and a functioning system have been antithetical to this regime and their toadies at DOJ and EOIR. With the degradation of the DOS Country Reports by political hacks, expert testimony has become essential in most asylum cases. Disgraceful performances by EOIR, as in this case, undermine the system and add to the backlog.
This case should have been completed in a single hearing. The BIA’s open contempt for the Circuits and failure to send strong signals to IJs (and the dilatory litigators at ICE) about issues that clearly should be resolved in the respondent’s favor is a mockery of justice!
Put the experts from the NDPA in charge of EOIR! Replace the BIA with real judges from the NDPA — asylum, human rights, and due process experts who will courageously stand up for the rule of law and hold both Immigration Judges and ICE accountable for scofflaw performances (and resist improper political interference from the DOJ — regardless of Administration).
Judges who will re-establish judicial independence and stop flooding the Circuit Courts (and even the U.S. District Courts) with cases and issues that should be resolved in favor of respondents at the trial level, consistently and efficiently. That’s how to stop DHS’s and DOJ’s frivolous, unethical, anti-immigrant “litigation positions” in immigration matters that are bogging down our justice system at all levels.
That’s also how to cut, rather than astronomically increase, backlogs (along with drastic pruning of all the “deadwood” mindlessly and improperly piled onto the EOIR docket by Sessions, Barr, and an out of control ICE acting as an arm of “White Nationalist nation”). The backlogs can be reduced and eventually eliminated without stomping on anyone’s rights or adversely affecting “real” law enforcement — as opposed to the bogus (and fiscally irresponsible) version we have seen from DHS over the past four years.
Stop “churning” cases! Stop the “denial factory! Create a model, best judicial practices, due-process oriented court system of which we all can be proud! Grant asylum expeditiously and consistently to those who qualify for protection under Cardoza-Fonseca, Mogharrabi, Kasinga, and A-R-C-G- (after vacating the A-B- travesty and reissuing it as a precedent for clear grants in all similar cases)! Encourage the Asylum Offices to do likewise! Make “equal justice for all” part of the new Administration’s legacy!
Think of what a great “teaching tool” that will be for future generations! I always treated my “courtroom as a classroom,” teaching law, history, practical problem solving, best interpretations, and best practices. I can’t think of a more powerful “real life” teaching and doing tool for improving the future of American justice — from the “retail level” of the Immigration Courts to the failing Supremes.
Due Process Forever! A weaponized and dysfunctional EOIR, never!
It’s time for a sea change at EOIR. End the kakistocracy and the “malicious incompetence!” Time for action by the Biden Administration — not just hollow promises and more endless studies and discussions of what we already know and have known for years!
It’s not rocket science! The practical scholars and steadfast defenders of due process and democracy in the NDPA who can fix EOIR are out here and prepared to take over and hit the ground running for due process and fundamental fairness at EOIR! (Amazingly, those were once the goals and vision for EOIR, now trampled, degraded, mocked, and forgotten!)Leaving them on the sidelines again would be “governmental malpractice!” And we’ve already had more than enough of that!
Paulina is a former Arlington Immigration Court intern and yet another “charter member of the NDPA” who is doing great things and changing the future of American Justice for the better. Educator, litigator, practical scholar, leader, inspirational humanitarian, all around nice person, and future Federal Judge, that’s Paulina!
“Tune in” tomorrow night and compare the bright future of due process, fundamental fairness, equal justice for all, ethical behavior, and practical applied scholarship with the ugly tone-deaf, intolerant, and ethics-free rant delivered to the Federalist Society by Justice Sam Alito last week. Alito accurately represented the unjustified grievances of the unreasonably embittered dark forces currently promoting a dysfunctional Federal Judiciary that failed as a body to stand up to the cruel, unconstitutional, racist-driven, authoritarianism of the now-defeated Trump regime.
Those are judges who shirked their constitutional and ethical duties and disgracefully embraced the regime’s White Nationalist driven invitations to “Dred Scottify” (dehumanize) large segments of society including African American and Latino voters, immigrants, asylum applicants, children, union members, etc. There is no excuse for such performance from judges who are supposedly insulated from political pressures by the unique privilege of life tenure.
Life tenure is life tenure. So, Alito & his arrogantly out of touch, anti-democracy, far-right buddies aren’t going anywhere soon.
But, it is essential to start putting the faces of a elitist, intentionally unfair, backward-looking, and intolerant society like him “in the rear view mirror” and start actively cultivating for our Federal Judiciary the large pool of much better qualified, smarter, fairer, more ethical, more diverse, more courageous, and more humane talent like Paulina and many of her colleagues out there in the private sector.
Not surprisingly given the groups who have fought to preserve democracy for all of us over the past four years, a disproportionate amount of that talent is in the immigration/human rights bar. As a nation, we can no longer afford the gross under-representation of this consistently “over performing” and courageous segment of the legal community on our Article III and Immigration Judiciaries!
Build a better Federal Judiciary for a better America!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”Recent Barr Appointee Prepares to Take Bench Fangusu, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
Gregory Chen @ Just Security lays bare the unrelenting nightmare @ EOIR:
The Trump administration has subjected America’s courts to extreme politicization and relentless assaults in the past four years. At the highest level, the deeply partisan battle over the Supreme Court confirmation of Justice Amy Coney Barrett transfixed the nation. But an even more radical transformation has been occurring in America’s immigration courts that has gone almost entirely unnoticed yet impacts hundreds of thousands of lives each year.
In a single term, Trump has filled the immigration courts with judges that hew to his anti-immigrant agenda and has implemented policies that severely compromise the integrity of the courts. Strained to the breaking point under a massive backlog of cases and a systemic inability to render consistent, fair decisions, the immigration courts require the urgent attention of the incoming Biden administration.
Most people apprehended by immigration enforcement authorities are removed from the United States without ever seeing a judge. The fortunate few who come before a judge are those seeking asylum or who need humanitarian relief that only an immigration judge can grant. Despite this critical role, these courts have suffered for years from underfunding, understaffing, and deep structural problems such as the fact that, unlike other courts, they operate under the jurisdiction of a prosecutorial agency, the Department of Justice, whose aims and political interests often conflict with the fundamental mission of delivering impartial and fair decisions. In recent years, the Justice Department has exercised its power to the maximal extent, stripping judges of fundamental authorities and rapidly appointing judges, to bend the courts toward political ends.
The intense public debates that accompany the Senate confirmation of Supreme Court nominees stand in sharp contrast to the lack of any public or congressional oversight into the appointments of immigration judges. During his time in office, President Donald Trump has appointed at least 283 out of a total of 520 immigration judges with no more fanfare than a public notice on the court’s website.
The Trump administration has not only chosen the majority of immigration judges but has also stacked the courts with appointees who are biased toward enforcement, have histories of poor judicial conduct, hold anti-immigrant views, or are affiliated with organizations espousing such views. Human Rights First found, for example, that 88 percent of immigration judges appointed in 2018 were former Department of Homeland Security (DHS) employees or attorneys representing the department.
Especially egregious are the appointments of the Chief Immigration Judge, who was previously the chief prosecutor for Immigration and Customs Enforcement and lacked any bench experience; the Chief Appellate Judge, who was a Trump advisor on immigration policy and a former prosecutor; and an immigration judge who worked for the Federation for American Immigration Reform, a known hate group. With the pace of appointments accelerating, it’s likely that even more judges conforming to that mold will be appointed before the administration’s term ends. In each of the most recent fiscal years, the administration has hired progressively more judges: 81 in 2018; 92 in 2019; and 100 in 2020.
Packing the Board of Immigration Appeals
The idea of packing the Supreme Court was heavily debated in the run-up to the election, but court-packing has already occurred on the Board of Immigration Appeals — the immigration appellate body — with the Trump administration’s addition of six new positions that raised the total size of the board from 17 to 23. The two regulations expanding the board were promulgated in rapid succession, each on an expedited basis that afforded no opportunity for public comment.
The expansion of the Board was another brazenly transparent move to fill the bench with judges unsympathetic to those appearing before them. Data from 2019 reveal that six immigration judges whom Attorney General William Barr elevated to serve as Board members had abysmal asylum grant rates — an average of 2.4 percent — that were far below the norm of 29 percent. Two of those judges denied every asylum case that year. In a manner of speaking, these judges never met an asylum seeker they liked.
The next year, Justice Department leadership tried to cull the nine appellate judges appointed by previous administrations by offering them buyout packages if they resigned or retired early. None took the deal, and thereafter, changes were made to their positions to make them more vulnerable to pressure from above and further intimidate them into leaving.
A judicial system that is buffeted so wildly by political waves cannot retain the public’s trust that it will deliver fair decisions. A similar attempt made at the end of the George W. Bush administration resulted in a hiring scandal that rocked the Justice Department. An oversight investigation found its leadership had violated federal law by considering immigration judge candidates’ political and ideological affiliations. Monica Goodling, Attorney General Alberto Gonzales’s White House Liaison, and other department staff had improperly screened candidates based on their political opinions by examining voter registration records and political contributions and asking about political affiliations during interviews. Now, at the request of eleven democratic senators, including Senator and Vice President Elect Kamala Harris, the Government Accountability Office has launched an investigation into the Trump administration’s politicization of the immigration courts.
Political interference with the immigration courts rises to the very top of the Department of Justice. Both Attorneys General Jeff Sessions and Barr vigorously exercised an unusual authority that enables them to overturn and rewrite the Board of Immigration Appeals’ decisions. In a series of opinions, Sessions divested judges of the powers they need to control their dockets, such as the authority to administratively close, continue, or terminate cases that are not suitable or ready for hearing. (Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018); Matter of L-A-B-R-, et al., 27 I&N Dec. 405 (A.G. 2018); Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018).)
. . . .
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Read Gregory’s complete article at the link.
Have any doubt that EOIR is a deadly “hack haven?” Here’s an article about a Barr “judicial” appointee with no immigration experience. What’s his “claim to fame?” He’s a controversial state criminal judge from Illinois who “retired” several years after being rated “unqualified” for further judicial service by the Chicago Council of Lawyers (although other groups recommended him.)
According to a recent complaint filed with EOIR by an coalition of an astounding 17 legal services and immigration groups in the San Francisco area:“In unusually aggressive language, the coalition accused Ford of ‘terrorizing the San Francisco immigrant community,’ alleging that he dispensed ‘racist, ableist and hostile treatment of immigrants, attorneys and witnesses.’”
With tons of exceptionally well qualified legal talent out there in the New Due Process Army (“NDPA”) who are experts in immigration and asylum laws and who have demonstrated an unswerving career commitment to scholarship, due process, fundamental fairness, equal justice, professionalism, and treating all humans decently, there is no, that is NO, excuse for tolerating clowns like Ford in perhaps the most important judicial positions in the Federal System. Judges at the “retail level” of our system who decide hundreds of thousands of cases annually and exercise life or death authority over large segments of our population and set the tone and are the foundation for our entire justice system!
Enough of the malicious incompetence, institutionalizedracism, ignorance, intentional rudeness, wanton cruelty, worst practices, disdain for scholarship, dehumanization, destruction of the rule of law, hack hiring, and systemic trampling of human decency and human dignity! EOIR is an ongoing“crime against humanity” perpetrated by the Trump regime under the noses of Congress and the Article III Courts who have undermined their own legitimacy by letting this stunningly unconstitutional travesty continue.
The Biden-Harris Administration must fix EOIR immediately! It’s not rocket science! The talent to do so is ready, willing, and able in the NDPA!
There is no “middle ground” here, and the status quo is legally and morally unacceptable! If they don’t fix it, the incoming Administration will rapidly become a co-conspirator in one of the darkest and most disgraceful episodes in American legal history. One that literally poses an existential threat to the continuation of our nation!
This isn’t a “back burner” issue or a project for “focus groups.” It’s war! And, we’re on the front lines of the monumental battle to save the heart, soul, and future of America and our judicial system! Failure and fiddling around (see, Obama Administration) aren’t options!
The U.S. Supreme Court ruled in June that the Trump administration wrongly tried to shut down protections under the Obama-era legislation known as DACA, or Deferred Action for Childhood Arrivals. On July 28, Wolf nonetheless suspended DACA pending review.
Homeland Security did not immediately respond to a request for comment.
Judge Nicholas Garaufis said court conferences would be held to work out details of his ruling.
He concluded, “Wolf was not lawfully serving as Acting Secretary of Homeland Security under the HSA [Homeland Security Act] when he issued the Wolf Memorandum” that suspended DACA.
Karen Tumlin, a lawyer in the case and director of the Los Angeles-based Justice Action Center, said the ruling means, “the effort in the Wolf memo to gut the DACA program is overturned.”
She said the ruling applies to more than a million people, including more recent applicants and those seeking two-year renewals for protection under DACA.
“This is really a hopeful day for a lot of young people across the country,” Tumlin said.
. . . .
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Read the rest of the article at the link.
Congrats to Karen and others who are fighting against the “illegals” in the Trump regime. Ironically, the DACA folks are huge contributors to America’s success😎; the “illegals” in the Trump regime, not so much🤮. Seems like there should be “sanctions” for knowingly and intentionally employing fake “cabinet officials” like Wolfman in violation of law👎🏻!
J Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesKnightess of the Round Table
Asher Stockler reports for Law360:
. . . .
But the government said that, even if these withholding claims succeed, it still retains the right to deport the group of immigrants to other countries that will accept them. Because deportation is still on the table regardless of the status of those claims, the administration argued, the group of immigrants should be treated identically to those who are about to be deported.
The ACLU rebutted that argument, saying that such third-country deportations are exceedingly rare. Because of this, the ACLU said the availability of a third-country option should not mean the
11/12/2020 Justices Told Of Due Process Issues Without Bond Hearings – Law360
deportation-ready provision of the law kicks in. According to the American Immigration Council, fewer than 2% of immigrants who received persecution-based relief in fiscal year 2017 were ultimately deported to a third country.
The Justice Department also raised the possibility that having to scrutinize the practical odds of removal from immigrant to immigrant would be “patently unworkable.”
“A case-by-case approach … would needlessly add to the burdens that are already ‘overwhelming our immigration system,'” the department said, quoting a prior case.
But a coalition of former immigration trial and appeals judges pushed back on that idea with their own amicus brief Thursday.
“Bond hearings in withholding of removal proceedings are no different than bond hearings in other contexts,” the group, representing 34 judges who have cumulatively overseen thousands of cases, wrote. “Contrary to [the administration’s] assertion, bond hearings in withholding of removal proceedings neither lead to a slowdown of cases that ‘thwart Congress’ objectives’ in enacting the immigration laws, nor impose an administrative burden on immigration courts.” The American Civil Liberties Union is represented by its own Michael Tan, Omar Jadwat, Judy Rabinovitz, Cecillia Wang and David D. Cole.
The coalition of former judges is represented by David Keyko, Robert Sills, Matthew Putorti, Daryl Kleiman, Patricia Rothenberg and Roland Reimers of Pillsbury Winthrop Shaw Pittman LLP.
The plaintiffs are represented by Paul Hughes, Michael Kimberly and Andrew Lyons-Berg of McDermott Will & Emery LLP, Simon Sandoval-Moshenberg and Rachel McFarland of the Legal Aid Justice Center, Mark Stevens of Murray Osorio PLLC, and Eugene Fidell of Yale Law School’s Supreme Court Clinic.
The Trump administration is represented by Noel Francisco, Jeffrey Wall, Edwin Kneedler and Vivek Suri of the U.S. Solicitor General’s Office and Lauren Fascett, Brian Ward and Joseph Hunt of the U.S. Department of Justice’s Civil Division.
The case is Tony H. Pham et al. v. Maria Angelica Guzman Chavez et al., case number 19-897, at the U.S. Supreme Court.
–Editing by Michael Watanabe.
**********************************************
Read the complete article over on Law360. The case comes from the Fourth Circuit. Hopefully, the Biden-Harris Administration will withdraw the SG’s disingenuous petition (if not already denied by the Supremes) and implement the Fourth Circuit’s correct decision nationwide.
That’s the way to promote due process and judicial efficiency instead of constantly promoting inhumanity, abuse of due process, judicial inefficiency (fair adjudication is hindered by unnecessary detention in the Gulag), and chaos!
Many, many, many thanks to our all-star pro bono team:
David Keyko, Robert Sills, Matthew Putorti, Daryl Kleiman, Patricia Rothenberg and Roland Reimers of Pillsbury Winthrop Shaw Pittman LLP.
Couldn’t have done it without you guys! You constantly “Make us look smart!”
I also note with great pride the following “charter members” of the “New Due Process Army” who were on the plaintiffs’ legal team:
Rachel McFarland, my former Georgetown Law student;
Simon Sandoval-Moshenberg, who appeared before me at the Arlington Immigration Court, and is an occasional contributor to “Courtside;
Mark Stevens, who appeared before me at the Arlington Immigration Court.
Well done, fearless fighters for due process!
Rachel McFarland Legal Aid Justice Center Charter Member, New Due Process Army
This disgraceful performance by the Solicitor General’s Office (once revered, now reviled) has become “the norm” under Trump. Francisco’s arguments are those of an attorney who didn’t do “due diligence,” but doesn’t expect the Court to know or care what really happens in Immigration Court. And, unfortunately, with the exception of Justice Sotomayor and perhaps Justice Kagan, that may well be a correct assumption. But that doesn’t make it any less of a powerful and disturbing indictment of our entire U.S. Justice system in the age of Trump.
Reality check: I routinely did 10-15, sometimes more, bond hearings at a Detained Master Calendar in less than one hour. I treated everyone fairly, applied the correct legal criteria, and set reasonable bonds (usually around $5,000) for everyone legally eligible. Almost all represented asylum seekers and withholding seekers eligible for bond who had filed complete and well-documented asylum or withholding applications were released on bond. About 99% showed up for their merits hearings.
I encouraged attorneys on both sides to file documents in advance, discuss the case with each other, and present a proposed agreed bond amount or a range of amounts to me whenever possible. Bond hearings were really important (freedom from unnecessary restraint is one of our most fundamental rights), but they weren’t “rocket science.” Bond hearings actually ran like clockwork.
Indeed, if the attorneys were “really on the ball,” and ICE managed to find and present all the detainees timely, I could probably do 10-15 bond cases in 30 minutes, and get them all right. My courtroom and my approach weren’t any different from that of my other then-colleagues at Arlington. In thirteen years on the bench, I set thousands of bonds and probably had no more than six appeals to the BIA from my bond decisions. I also reviewed many bond appeals at the BIA. (Although, most bond appeals to the BIA were “mooted” by the issuance of a final order in the detained case before the bond appeal was adjudicated.) Most took fewer than 15 minutes.
Indeed, my past experience suggests that a system led (not necessarily “run”) by competent judicial professionals and staffed with real judges with expertise in immigration, asylum, and human rights and unswervingly committed to due process and fundamental fairness could establish “best practices” that would drastically increase efficiency, cut (rather than mindlessly and exponentially expand) backlogs, without cutting out anyone’s rights. In other words, EOIR potentially could be a “model American judiciary,” as it actually was once envisioned, rather than the slimy mass of disastrous incompetence and the national embarrassment that it is today!
The idea that doing something as straightforward as a bond hearing would tie the system in knots is pure poppycock and a stunning insult to all Immigration Judges delivered by a Solicitor General who has never done a bond case in his life!
Yes the system is overwhelmingly backlogged and dysfunctional! But that has nothing to do with giving respondents due process bond hearings.
It has everything to do with unconstitutional and just plain stupid “politicization” and “weaponization” of the courts under gross incompetence and mismanagement by political hacks at the DOJ who have installed their equally unqualified toadies at EOIR. It also has to do with a disingenuous Solicitor General who advances a White Nationalist political agenda, rather than constitutional rights, fundamental fairness, rationality, and best practices. It has to do with a Supreme Court majority unwilling to take a stand for the legal rights and human dignity of the most vulnerable, and often most deserving, among us in the face of bullying and abuse by a corrupt, would-be authoritarian, fundamentally anti-American and anti-democracy regime.
It has to do with allowing a corrupt, nativist, invidiously-motivated regime to manipulate and intentionally misapply asylum and protection laws at the co-opted and captive DHS Asylum Office; thousands of “grantable” asylum cases are wrongfully and unnecessarily shuffled off to the Immigration Courts, thus artificially inflating backlogs and leading to more pressure to cut corners and dispense with due process.
It also paints an intentionally false and misleading picture that the problem is asylum applicants rather than the maliciously incompetent White Nationalists who have seized control of our system and acted to destroy years of structural development and accumulated institutional expertise.
Good Government matters! Maliciously incompetent Government threatens to destroy our nation! (Doubt that, just look at the totally inappropriate, entirely dishonest, response of the Trump kakistocracy to their overwhelming election defeat by Biden-Harris and the unwillingness of both the GOP and supporters to comply with democratic norms and operate in the real world of facts, rather than false narratives.)
Due process, fundamental fairness, equal justice, simple human decency, and Good Government won’t happen until we get the White Nationalist hacks out of the DOJ and replace the “clown show” at EOIR with qualified members of the New Due Process Army. Problem solvers, rather than problem creators; over-achievers, rather than screw-ups!
The incoming Biden-Harris Administration is left with a stark, yet simple, choice: oust the malicious incompetents and bring in the “competents” from the NDPA to fix the system; or become part of the problem and have the resulting mess forever sully your Administration.
The Obama Administration (sadly) chose the latter. President Elect Biden appears bold, confident, self-aware, and flexible enough to recognize past mistakes. But, recognition without reconstruction (action) is useless! Don’t ruminate — govern! Like your life depends on it!
And, by no means is EOIR the only part of DOJ the needs “big time” reform and a thorough shake up. We must have a Solicitor General committed to following the rules of legal ethics and common human decency and who will insist on her or his staff doing likewise.
The next Solicitor General must also have demonstrated expertise in asylum, immigration, civil rights, and human rights laws and be committed to expanding due process, equal justice, racial justice, and fundamental fairness throughout the Government bureaucracy and “pushing” the Supremes to adopt and endorse best, rather than worst, practices in these areas.
American Justice and our court systems are in “free fall.” This is no time for more “amateur night at the Bijou.”
And here are some thoughts for the future if we really want to achieve “Good Government” and equal justice for all:
Every future Supreme Court Justice must have served a minimum of two years as a U.S. Immigration Judge with an “asylum grant rate” that is at or exceeds the national average for the U.S. Immigration Courts;
Every future Solicitor General must have done a minimum of ten pro bono asylum cases in U.S. Immigration Court.
Due Process Forever! Clown Show (With Lives & Humanity On The Line) Never!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleMe
FROM THE HEIGHTS OF KASINGA TO THE DEPTHS OF AMERICA’S DEADLY STAR CHAMBERS: Will The Biden Administration Tap The New Due Process Army To Fix EOIR & Save Our Nation?
By Paul Wickham Schmidt
Retired U.S. Immigration Judge
Courtside Exclusive
Nov. 12, 2020
I. INTRODUCTION — ABROGATION OF ASYLUM LAWS IN THE FACE OF EXECUTIVE LAWLESSNESS & RACIAL BIAS IS A NATIONAL DISGRACE
In Matter ofKasinga, I applied the generous well-founded fear standard for asylum established by the Supreme Court in Cardoza-Fonseca to reach a favorable result for a female asylum applicant. It was based on a particular social group of women of the tribe who feared persecution in the form of female genital mutilation, or “FGM.” I sometimes think of this as the “high water mark” of asylum law at the BIA.
Since then, proper, generous application of asylum laws to serve their intended purpose of flexibly, fairly, and consistently extending protection to those facing persecution has been steadily declining. The Trump Administration essentially overruled Cardoza-Fonseca and abolished asylum law without legislative change.
Both Congress and the Court have failed to stand up to this egregious abuse of the law, constitutional due process, and simple human decency that presents a “clear and present danger” to our nation’s continued existence.
Indeed, the performance of the Court in the face of the Administration’s overt assault on asylum has been so woeful as to lead me to wonder whether any of the Justices, other than Justice Sonia Sotomayor, have actually read the Cardoza-Fonseca decision. Certainly, most of them have failed to consistently and courageously carry forth its spirit and to grapple with their legal and moral responsibility for letting a lawless Executive trample the constitutional and human rights, as well as the human dignity, of the most vulnerable among us.
How did we get to this utterly deplorable state of affairs and what can the Biden Administration do to save us? Will they act boldly and courageously or continue the tradition of ignoring abuses directed against asylum seekers and the deleterious effect it has on our society and the rule of law?
I guarantee that racial justice and harmony will continue to elude us as a nation unless and until we come to grips with the ongoing abuses in the Immigration Courts — “courts” that no longer function as such in any manner except the misleading name!
II. BACKGROUND
To understand what has happened since Kasinga, here’s some background. In U.S. asylum law, there generally has been an “inverse relationship” between geography and success. The further your home country is from the U.S., the more generous the treatment is likely to be.
Thus, folks like Kasinga from Togo, or those from Tibet, Ethiopia, China, or Eritrea, with relatively difficult access to our borders, tend to do relatively well. On the other hand, those from Mexico, Haiti, Central America, and South America, who have easier access to our borders, tend to be treated more restrictively.
This reaction has been driven by a hypothesis with limited empirical support, but which has been accepted in some form or another by all Administrations, regardless of party, since the enactment of the Refugee Act of 1980. That is, the belief that human migration patterns are driven primarily by the policies and legal regimes in prosperous so-called “receiving countries” like the U.S.
Thus, generous and humane asylum policies will encourage unwanted flows of asylum seekers across international borders. And, of course, we all know that nothing threatens the national security of the world’s greatest nuclear superpower more than a caravan or flotilla of desperate, unarmed asylum seekers and their families trying to turn themselves in at the border or to the Border Patrol shortly after arrival.
Conversely, restrictive policies including rapid, unfair rejection, border turn-backs, mass detentions, criminal sanctions, family separation, denials of fair hearings, walls, border militarization, and hostile, often racially and religiously charged rhetoric, will cause asylum seekers to “stay put” thus deterring them and reducing the number of applications threatening our national security. In other words, encourage legitimate asylum seekers to “perish in place.” Often, these harsh policies are disingenuously characterized as being, at least partially, “for the benefit of asylum seekers” by discouraging them from undertaking dangerous journeys and paying human smugglers only to be summarily rejected upon arrival.
This “popular hypothesis” largely ignores the effect of conditions in refugee sending countries, including both geopolitical and environmental factors. For example, the current migration flow is affected by the practical difficulties of travel in the time of pandemic and by economic failures and cultural and political changes resulting from unabated climate change, not just by the legal restrictions that might be in place in the U.S. and other far-away countries.
It also factors out the “business narratives” of human smugglers designed to manipulate asylum seekers in ways that maximize profits under a variety of scenarios and to take maximum advantage of mindlessly predictable government “enforcement only” strategies.
Indeed, there is plenty of reason to believe that such policies serve largely to maximize smugglers’ profits, extort more money from desperate asylum seekers, but with little long-term effect on migration patterns. The short-term reduction in traffic, often hastily mischaracterized as “success” by the government, probably reflects in part “market adjustments” as smugglers raise their rates to cover the increased risks and revised planning caused by more of a particular kind of enforcement. That “prices some would-be migrants out of the market,” at least temporarily, and forces others to wait while they accumulate more money to pay smugglers.
It also likely increases the number of asylum seekers who die while attempting the journey. But, there is no real evidence that four decades of various “get tough” and “deterrence policies” — right up until the present — have had or will have a determinative long term effect on extralegal migration to the U.S. It may well, however, encourage more migrants to proceed to the interior of the country and take “do it yourself” refuge in the population, rather than turning themselves in at or near the border to a legal system that has been intentionally rigged against them.
Regardless of its empirically questionable basis, “deterrence theory” has become the primary driving force behind government asylum policies. Thus, the fear of large-scale, out of control “Southern border incursions” by asylum seekers has driven all U.S. Administrations to adopt relatively restrictive interpretations and applications of asylum law with respect to asylum seekers from Central America.
Starting with a so-called “Southern border crisis” in the summer of 2014, the Obama Administration took a number of steps intended to discourage Central American asylum seekers. These included: use of so-called “family detention;” denial of bond; accelerated processing of recently arrived children and adults with children; selecting Immigration Judges largely from the ranks of DHS prosecutors and other Government employees; keeping asylum experts off the BIA; taking outlandish court positions on detention and the right to counsel for unrepresented toddlers in Immigration Court; and dire public warnings as to the dangers of journeying to the U.S. and the likelihood of rejection upon arrival.
These efforts did little to stem the flow of asylum seekers from the Northern Triangle. However, they did result in a wave of “Aimless Docket Reshuffling” (“ADR”) at the Immigration Courts that accelerated the growth of backlogs and the deterioration of morale at EOIR. (Later, Sessions & Barr would “perfect the art of ADR” thereby astronomically increasing backlogs, even with many more judges on the bench, to something approaching 1.5 million known cases, with probably hundreds of thousands more buried in the “maliciously incompetently managed” EOIR (non)system).
Success for Central American asylum applicants thus remained problematic, with more than two of every three applications being rejected. Nevertheless, by 2016, largely through the heroic efforts of pro bono litigation groups, applicants from the so-called “Northern Triangle” – El Salvador, Honduras, and Guatemala – had achieved a respectable approval rate ranging from approximately 20% to 30%.
Many of these successful claims were based on “particular social groups” composed of battered women and/or children or family groups targeted by violent husbands or boyfriends, gangs, cartels, and other so-called “non-governmental actors” that the Northern Triangle governments clearly were “unwilling or unable to control.”
III. CROSSHAIRS
Upon the ascension of the Trump Administration in 2017, refugee and asylum policies became driven not only by “deterrence theory,” but also by racially, religiously, and politically motivated “institutionalized xenophobia.” The initial target was Muslims who were “zapped” by Trump’s so-called “Muslim ban.” Although initially properly blocked as unconstitutional by lower Federal Courts, the Supreme Court eventually “greenlighted” a slightly watered-down version of the “Muslim ban.”
Next on the hit list were refugees and asylees of color. This put Central American asylum seekers, particularly women and children, directly in the crosshairs.
In something akin to “preliminary bombing,” then Attorney General Jeff Sessions launched a series of false and misleading narratives against asylum seekers and their lawyers directed at an audience consisting of Immigration Judges and BIA Members who worked at EOIR and thus were his subordinates.
Without evidence, Sessions characterized most asylum seekers as fraudulent or mala fide and blamed them as a primary cause for the population of 11 million or so undocumented individuals estimated to be residing in the U.S. He also accused “dirty immigration lawyers” of having “gamed” the asylum system, while charging “his” Immigration Judges with the responsibility of “assisting their partners” at DHS enforcement in stopping asylum fraud and discouraging asylum applications.
IV. THE ATTACK
While not directly tampering with the “well-founded fear” standard for asylum, with Sessions leading the way, the Administration launched a three-pronged attack on asylum seekers.
First, using his power to review BIA precedents, Sessions reversed the prior precedent that had facilitated asylum grants for applicants who had suffered persecution in the form of domestic abuse. In doing so, he characterized them as “mere victims of crime” who should not be recognized as a “particular social group.” While not part of the holding, he also commented to Immigration Judges in his opinion that very few claimants should succeed in establishing asylum eligibility based on domestic violence.
He further imposed bogus “production quotas” on judges with an eye toward speeding up the “deportation railroad.” In other words, Immigration Judges who valued their jobs should start cranking out mass denials of such cases without wasting time on legal analysis or the actual facts.
Later, Sessions’s successor, Attorney General Bill Barr, overruled the BIA precedent recognizing “family” as a particular social group for asylum. He found that the vast majority of family units lacked the required “social distinction” to qualify.
For example, a few prominent families like the Rockefellers, Clintons, or Kardashians might be generally recognized by society. However, ordinary families like the Schmidts would be largely unknown beyond their own limited social circles. Therefore, we would lack the necessary “social distinction” within the larger society to be recognized as a particular social group.
Second, Sessions and Barr attacked the “nexus” requirement that persecution be “on account of” a particular social group or other protected ground. They found that most alleged acts of domestic violence or harm inflicted by abusive spouses, gangs and cartels were “mere criminal acts” or acts of “random violence” not motivated by the victim’s membership in any “particular social group” or any of the other so-called “protected grounds” for asylum. They signaled that Immigration Judges who found “no nexus” would find friendly BIA appellate judges anxious to uphold those findings and thereby retain their jobs.
Third, they launched an attack on the long-established “nongovernmental actor” doctrine. They found that normally, qualifying acts of persecution would have to be carried out by the government or its agents. For non-governmental actions to be attributed to that government, that government would basically have to be helpless to respond.
They found that the Northern Triangle governments officially opposed the criminal acts of gangs, cartels, and abusers and made at least some effort to control them. They deemed the fact that those governments are notoriously corrupt and ineffective in controlling violence to be largely beside the point. After all, they observed, no government including ours offers “perfect protection” to its citizens.
Any effort by the government to control the actor, no matter how predictably or intentionally ineffective or nominal, should be considered sufficient to show that the government was willing and able to protect against the harm. In other words, even the most minimal or nominal opposition should be considered “good enough for government work.”
V. THE UGLY RESULTS
Remarkably, notwithstanding this concerted effort to “zero out” asylum grants, some individuals, even from the Northern Triangle, still succeed. They usually are assisted by experienced pro bono counsel from major human rights NGOs or large law firms — essentially the “New Due Process Army” in action. These are the folks who have saved what is left of American justice and democracy. Often, they must seek review in the independent, Article III Federal Courts to ultimately prevail.
Some Article IIIs are up to the job; many aren’t, lacking both the expertise and the philosophical inclination to actually enforce the constitutional and statutory rights of asylum seekers — “the other,” often people of color. After all, wrongfully deported to death means “out of sight, out of mind.”
However, the Administration’s efforts have had a major impact. Systemwide, the number of asylum cases decided by the Immigration Courts has approximately tripled since 2016 – from approximately 20,000 to over 60,000, multiplying backlogs as other, often older, “ready to try” cases are shuffled off to the end of the dockets, often with little or no notice to the parties.
At the same time, asylum grant rates for the Northern Triangle have fallen to their lowest rate in many years 10% to 15%. Taken together, that means many more asylum denials for Northern Triangle applicants, a major erosion of the generous “well-founded fear” standard for asylum, and a severe deterioration of due process protections in American law. Basically, it’s a collapse of our legal system and an affront to human dignity. The kinds of things you might expect in a “Banana Republic.”
VI. WILL BIDEN FIX EOIR OR REPEAT THE MISTAKES OF THE OBAMA ADMINISTRATION?
The intentional destruction of U.S. asylum law and the weaponization of EOIR in support of the White Nationalist agenda have undermined the entire U.S. justice system. It actively encourages both dehumanization (“Dred Scottification”) and institutionalized racism all the way up to a Supreme Court which has improperly enabled large portions of the unlawful and unconstitutional anti-migrant agenda.
The Biden Administration can reverse the festering due process and human rights disaster at EOIR. Unlike improving and reforming the Article III Judiciary, it doesn’t need Mitch McConnell’s input to do so.
Biden can appoint an Attorney General who will recognize the importance of putting immigration/human rights/due process experts in charge of EOIR. He can replace the current BIA with real appellate judges whose qualifications reflect an unswerving commitment to due process, expert application of asylum laws in the generous manner once envisioned by the Supreme Court in Cardoza-Fonseca, implementing “best” practices, judicial efficiency, and judicial independence.
Biden can return human dignity to an improperly weaponized system designed to “Dred Scottify” the other. He can appoint better qualified Immigration Judges through a merit-based system that would encourage and give fair consideration to the many outstanding candidates who have devoted their professional lives to fighting for due process, fundamental fairness, and immigrants’ rights, courageously, throughout America’s darkest times!
That, in turn, will create the necessary conditions to institutionalize the EOIR reforms through the legislative creation of an independent, Article I Immigration Court that will be the “gemstone” of American justice rather than a national disgrace! One that will eventually fulfill the noble, now abandoned, “EOIR Vision” of “through teamwork and innovation being the world’s best tribunals, guaranteeing fairness and due process for all.”
The Obama Administration shortsightedly choose to “freeze out” the true experts in the private advocacy, NGO, academic, clinical teaching, and pro bono communities. The results have been beyond disastrous.
In addition to killing, maiming, and otherwise harming humans entitled to our legal protection, EOIR’s unseemly demise over the past three Administrations has undermined the credibility of every aspect of our justice system all the way to the Supreme Court as well as destroying our international leadership role as a shining example and beacon of hope for others.
The talent in the private sector is out there! They are ready, willing, and very able to turn EOIR from a disaster zone to a model of due process, innovation, best practices, fair, efficient, and practical judging, and creative judicial administration. One that other parts of the U.S. judicial system could emulate.
Will the Biden Administration heed the call, act boldly, and put the “right team” in place to save EOIR? Or will they continue past Democratic Administrations’ short-sighted undervaluation of the importance of providing constitutionally required due process, equal justice, and fundamental fairness to all persons in the U.S. including asylum applicants and other migrants.
I’ve read a number of papers and proposals on how to “fix” immigration and refugee policies. None of them appears to recognize the overriding importance of making EOIR reform “job one.”
For once, why can’t Democrats “think like Republicans?” When John Ashcroft and Kris Kobach and later Jeff Sessions and Stephen Miller set out to kneecap, politicize, and weaponize the U.S. justice system, what was their “starting point?” EOIR, of course!
The Obama Administration’s abject failure to effectively address and reverse the glaring mess at EOIR left by the “Ashcroft reforms” basically set the table for Sessions’s even more invidious plan to weaponize EOIR into a tool for xenophobia and White Nationalist nativism. The problems engendered by allowing the politicization and weaponization of EOIR have crippled the U.S. justice system far beyond immigration and asylum law.
Without a better EOIR, fully empowered to lead the way legally and insure and enforce compliance, all reforms, from DACA, to detention reform, to restoration of refugee and asylum systems will be less effective, more difficult, and less enduring than they should be. Equal justice for all and an end to institutionalized racism cannot be achieved without bold EOIR reform!
It would also take some of the pressure off the Article III Courts. Time and again they are called upon, with disturbingly varying degrees of both willingness and competence in the results, to correct the endless stream of basic legal errors, abuses of due process, and inane, obviously biased and counterproductive policies regularly flowing from EOIR and DOJ. Indeed, unnecessary litigation and frivolous, ethically questionable, often factually inaccurate or intentionally misleading positions advanced by the DOJ in immigration matters now clog virtually all levels of the Article III Federal Courts right up to the docket of the Supreme Court!
So far, what I haven’t seen is a recognition by anyone on the “Biden Team” that the experts in the private bar who have been the primary fighters in the trenches, almost singlehandedly responsible for preserving American justice and saving our democracy from the Trump onslaught, must be placed where they belong: in charge of the effort to rebuild EOIR and those who will be chosen to staff it!
Continue to ignore the New Due Process Army and their ability to right the listing American ship of state at peril! It’s long past time to unleash the “problem solvers” on government and give them the resources and support necessary to use practical scholarship, technology, best practices, and “Con Law/Human Rights 101” to solve the problems!
No “magic list,” stakeholders committees, or consensus-building groups can take the place of putting expert, empowered, practical problem solvers in charge of the machinery. We can’t win the game with the best, most talented, most knowledgeable, most courageous players forever sitting on the bench!
The future of our republic might well depend on whether the Biden-Harris Administration can get beyond the past and take the courageous, far-sighted actions necessary to let EOIR lead the way to a better future of all Americans! We can only hope that they finally see the light. Before it’s too late for all of us!
Due Process Forever! Complicity & Complacency, Never!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues on listservs as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, November 27, 2020. NYC non-detained remains closed for hearings.
WaPo: He will repeal the ban on almost all travel from some Muslim-majority countries, and he will reinstate the program allowing “dreamers,” who were brought to the United States illegally as children, to remain in the country, according to people familiar with his plans. See also Factbox: Here are six things Joe Biden will likely do on immigration.
AP: A federal appeals court has allowed a Trump administration rule that would deny green cards to immigrants who use public benefits like food stamps to go back into effect while it considers the case.
Gov Exec: The lone Democrat on the board of the agency tasked with administering federal labor law accused his colleagues of “sophistry” and “facetious” reasoning to strip more than 450 federal employees of their collective bargaining rights.
WaPo: Kamala Devi Harris, a daughter of Indian and Jamaican immigrants, is set to become the highest-ranking woman in the nation’s 244-year existence, as well as a high-profile representation of the country’s increasingly diverse composition.
Border Report: Most of the 600 or so migrants now living in the camp were placed in the Migrant Protection Protocols program, also known as the “Remain in Mexico” policy, which requires them to wait on Mexican soil during their U.S. immigration proceedings. The asylum process can take many months, sometimes years, and some of the migrants Border Report spoke with have been living in this filthy tent encampment on the banks of the Rio Grande since 2019.
Science: ScienceInsider has learned that Jason Richwine, an independent public policy analyst, has been appointed as deputy undersecretary of commerce for science and technology and could start work as soon as today.
Gothamist: Sastre said that even if Trump loses, new detention contracts could still be signed by the time former Vice President Joe Biden, the Democratic presidential nominee, is inaugurated.
AILA is updating this practice alert as a result of the Seventh Circuit Court of Appeals issuing a stay of the N.D. of Illinois decision to set aside the DHS Public Charge Final Rule pending appeal. All adjustment of status application must be filed with the I-944 once again. AILA Doc. No. 20110232
The AG ruled that the bar to eligibility for asylum and withholding based on persecution does not include an exception for coercion or duress, and that DHS does not have an evidentiary burden to show ineligibility based on the persecutor bar. Matter of Negusie, 28 I&N Dec. 120 (A.G. 2020) AILA Doc. No. 20110631
Unpublished BIA decision reverses denial of joint motion to reopen where respondent presented evidence indicating that she was admitted with a visa and was thus eligible to adjust status. Special thanks to IRAC. (Matter of Acosta Carmona, 6/1/20) AILA Doc. No. 20110502
Unpublished BIA decision rescinds in absentia order due to exceptional circumstances where respondent was admitted to emergency room on morning of final hearing due to sudden onset of chest pain. Special thanks to IRAC. (Matter of Bhardwaj, 5/28/20) AILA Doc. No. 20110501
Unpublished BIA decision reopens proceedings for respondent ordered deported under INA 237(a)(1)(D)(i) following DHS approval of waiver under INA 216(c)(4). Special thanks to IRAC. (Matter of Clarke, 5/27/20) AILA Doc. No. 20110500
EOIR released guidelines for the implementation of the settlement agreement in Mendez Rojas v. Wolf, which requires class members to file notice of class membership on or before 3/31/22. Individuals who establish class membership shall be deemed to have timely filed an asylum application. AILA Doc. No. 20110541
In 2019, DOJ petitioned the FLRA in an attempt to strip immigration judges (IJs) of their right to unionize. On November 2, 2020, the FLRA concluded that IJs are management officials and stripped them of their collective bargaining rights. This featured issue page provides additional resources. AILA Doc. No. 19081303
NIP: The lawsuit challenges proposed rule changes to the U.S. asylum process which are slated to go into effect on November 20. These rules are the latest step in the Trump Administration’s effort to drastically cut down the number of applicants and recipients of asylum protections in the U.S.
USCIS announced via the Form I-589 webpage that beginning 11/2/20, asylum offices will no longer accept the filing of Form I-589s that previously were filed directly with a local asylum office. These forms must be filed with the Asylum Vetting Center in Atlanta, Georgia. AILA Doc. No. 20110239
EOIR Released a memo (PM 21-03) canceling and replacing OPPM 04-06 and memorializing EOIR policies regarding the use of the telephone and video teleconferencing (VTC or VC) to conduct hearings in proceedings before an immigration judge. AILA Doc. No. 20110641
EOIR issued a policy memo (PM 21-02) rescinding Operating Policies and Procedures Memoranda (OPPRM) 13-03, Guidelines for Implementation of the ABT Settlement Agreement, and 16-01, Filing Applications for Asylum. The rescissions are effective November 6, 2020. AILA Doc. No. 20110640
President Trump issued a determination on 10/27/20, setting the refugee admissions ceiling for FY2021 at 15,000, which incorporates more than 6,000 unused places from the FY2020 ceiling. (85 FR 71219, 11/6/20) AILA Doc. No. 20102830
USCIS announced it has automatically extended the validity of EADs issued under the TPS designation for South Sudan through 5/1/21. USCIS also provided instructions for completing Form I-9 for beneficiaries who present an EAD with a category code of A12 or C19 and a Card Expires date of 11/2/20. AILA Doc. No. 20110531
EOIR final rule which finalizes the interim rule published at 84 FR 44537 on 8/26/19, with additional amendments. The rule is effective 11/3/20. (85 FR 69465, 11/3/20) AILA Doc. No. 20110238
