"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
How race and religion have always played a role in who gets refuge in the US
Laura E. Alexander Published: April 28, 2022 8.21am EDT
Ukrainian refugees wait near the U.S. border in Tijuana, Mexico. AP Photo/Gregory Bull
In the weeks since Russia invaded Ukraine, millions of Ukrainians have fled the country as refugees. Hundreds of those refugees have now arrived at the southern border of the United States seeking asylum, after flying to Mexico on tourist visas.
At the border, Ukrainians, alongside thousands of other asylum seekers, must navigate two policies meant to keep people out. The first is the “Migrant Protection Protocols,” a U.S. government action initiated by the Trump administration in December 2018 and known informally as “Remain in Mexico.” The second is Title 42, a Centers for Disease Control and Prevention directive crafted in 2020, ostensibly to protect public health during the COVID-19 pandemic. The directive expels all irregular immigrants (those without permanent residency or a visa in hand) and asylum seekers who try to enter the U.S. by land.
On March 11, 2022, however, the Biden administration provided guidance allowing Customs and Border Protection officers to exempt Ukrainians from Title 42 on a case-by-case basis, which has allowed many families to enter. However, this exception has not been granted to other asylum seekers, no matter what danger they are in. It is possible that the administration may lift Title 42 at the end of May 2022, but that plan has encountered fierce debates.
The different treatment of Ukrainian versus Central American, African, Haitian and other asylum seekers has promptedcriticism that the administration is enforcing immigration policies in racist ways, favoring white, European, mostly Christian refugees over other groups.
This issue is not new. As scholars of religion, race, immigration, and racial and religious politics in the United States, we study both historical and current immigration policy. We argue that U.S. refugee and asylum policy has long been racially and religiously discriminatory in practice.
Chinese asylum seekers
Race played a major role in who counted as a refugee during the early years of the Cold War. The displacement of millions fleeing communist regimes in Eastern Europe and East Asia created humanitarian crises in both places.
Under significant international pressure, Congress passed the 1953 Refugee Relief Act. According to historian Carl Bon Tempo, in the minds of President Dwight Eisenhower and most lawmakers, “refugee” meant “anticommunist European.” The text and implementation of the act reflected this. Of the 214,000 visas set aside for refugees, the law designated a quota of only 5,000 spots for Asians (2,000 for Chinese and 3,000 for “Far Eastern” refugees). Ultimately, approximately 9,000 Chinese (including 6,862 Chinese wives of U.S. citizens who came as nonquota migrants) were admitted under the 1953 refugee law, compared with nearly 200,000 southern and eastern Europeans, over the next three years.
Racial prejudice impacted the international response to refugees as well. By the late 1940s and early 1950s, United Nations officials had declared the displaced population in Europe a humanitarian crisis and appealed to the international community to relieve these pressures by accepting refugees. Over the next decade, Western nations including the U.S., France and Great Britain received millions of displaced Europeans as part of a larger Cold War public relations strategy to contain the Soviet Union and demonstrate the superiority of Western capitalist societies to life behind the Iron Curtain.
In the United States, exclusionary provisions that barred Asians from immigrating as “aliens ineligible to citizenship” would not be removed from immigration law until the 1965 Immigration Act.
Haitian refugees who were intercepted by the U.S. Coast Guard returning to Port-au-Prince after being repatriated in 1992. AP Photo/Daniel Morel
Between 1973 and 1991, more than 80,000 Haitians tried to seek asylum in the U.S. The U.S., however, consistently attempted to intercept and turn back boats carrying Haitian asylum seekers to avoid having to hear their cases.
In the 1980s and 1990s, nearly every single Haitian who tried to request asylum was either denied or turned away. Some disparities between asylum rates could be explained by political factors, particularly the U.S. government’s interest in prioritizing refugees from communist countries.
However, the U.S. District Court for the Southern District of Florida and the 11th Circuit Court bothfound, in Haitian Refugee Center v. Civiletti and Jean v. Nelson respectively, that racial discrimination could be the only reason for such strikingly different outcomes for Haitians. In Jean v. Nelson, the 11th Circuit heard evidence from plaintiffs that there was a less than two-in-1 billion chance that Haitians would be denied parole so consistently if immigration policies were applied in racially neutral ways. Both courts also noted the differences in outcomes of asylum claims between Cuban refugees, who were predominantly white, and Haitian refugees.
In the same time period, even while Black Haitian asylum seekers were being turned away, European immigrants, who were primarily white, received preference in the Diversity Visa system created by the Immigration Act of 1990. Northern Ireland, for example, was designated as a separate country from the United Kingdom, and 40% of “diversity transition” visas allocated during 1992 to 1994 were earmarked for Irish immigrants.
Similar accusations of racism and discriminatory treatment have surfaced over the last several months as Haitian asylum seekers at the U.S.-Mexico border have been forced onto flights to Haiti and have faced degrading treatment.
Syrian refugees and the Muslim ban
Beginning in January 2017, President Donald Trump issued a series of executive orders described by many refugee advocates as the “Muslim Ban.” The ban suspended the entry of people from majority-Muslim countries, including Syrians, and limited the number of refugee admissions of several majority-Muslim countries.
Few Syrian refugees were allowed into the U.S. In this photo, Syrian refugees wait to be approved to get into Jordan. AP Photo/Raad Adayleh, File
Syrian refugees, most of whom fled the Syrian civil war that began in 2011 and violence by the Islamic State, were specifically targeted in the Muslim Ban.
A February 2017 version of the Muslim Ban claimed that Syrian refugees were “detrimental to the interests of the United States and thus suspend[ed]” from admission, with few exceptions. This contributed to a significant decrease in the number of Syrian refugees – from 12,587 to 76 between financial year 2016 to 2018.
International agreements for refugees and asylum seekers clearly state that admissions should be based on need. In principle, U.S. law says this as well. But these key moments in United States history show how race, religion and other factors play a role in determining who is in, and who is out.
While refugees from the war in Ukraine deserve support from the United States and other countries, the contrast between the treatment of different groups of refugees shows that the process of gaining refuge in the United States is still far from equitable.
And, the ongoing grotesque abuses of Title 42 to target refugees of coloris Exhibit A! So, why are some “tone deaf” Democrats advocating this racist action?
Because the polls tell them is “politically expedient” to favor racism?
Because racism at the border and in the immigration system are thought to be “below the radar screen?”
Because dead refugees of color “don’t matter?”
Or, put another way, because the lives of refugees of color don’t matter?
Unfortunately, you have to get “down to the fine print” (page 13 of 20) find the paragraph that should be the “centerpiece of restoring the rule of law” — a functional legal asylum processing at ports of entry that would encourage refugees to present themselves there for fair and humane processing rather than seeking irregular entry with the help of smugglers.
Port of Entry Processing
The imposition of the Title 42 public health Order severely restricted the ability of undocumented noncitizens to present at POEs for inspection and processing under Title 8. The closure of this immigration pathway for much of the time Title 42 has been in effect has driven people between POEs at the hands of the cartels. Returning to robust POE processing is an essential part of DHS border security efforts. Beginning in the summer of 2021, DHS restarted processing vulnerable individuals through POEs under Title 8, on a case-by-case basis for humanitarian reasons, pursuant to the exception criteria laid out in CDC’s Title 42 Order. These efforts, which we have recently expanded, offer individuals in vulnerable situations a safe and orderly method to submit their information in advance and present at POEs for inspection and subsequent immigration processing under Title 8. We also have enhanced Title 8 POE processing through the development of the CBP One mobile application, which powers advanced information submission and appointment scheduling prior to an individual presenting at a POE. We will make this tool publicly available and continue to expand its use to facilitate orderly immigration processing at POEs.
13 of 20
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The failure of Garland to appoint a new, expert BIA committed to due process and providing fair, practical positive guidance on the generous application of asylum law foreshadowed by INS v. Cardoza Fonseca a quarter of a century ago, but never realized in practice, is likely to become a millstone around the Administration’s neck. There is no substitute for due process and fundamental fairness. The current dysfunctional, mismanaged, and inappropriately staffed EOIR is not capable of providing the necessary leadership, consistency, and accountability.
Also, in light of U.S. District Judge Robert Summerhays’s“off the wall” decision in Arizona v. CDC, it’s not clear that Title 42 will ever be lifted.
So, the DHS can’t make advance preparation for orderly resumption of legal processing for asylum seekers? Clearly fabricated “harm” over human lives and human rights? Ignoring the well-documented record of deadly harm inflicted on those seeking asylum by lawless Title 42 enforcement? Racist actions by a U.S. District Judge specifically directed against Hispanic migrants from the Northern Triangle? No realistic connection whatsoever to “public health?” Obviously this is a scheme by an unqualified Federal Judge and White Nationalist GOP state AGs to end asylum law at the border!
“Instead of caving into the anti-immigrant rhetoric of the Republicans, Congress should work on real immigration reform that doesn’t exploit an arcane public health authority to deny people their basic, human right to seek asylum,” they wrote.
And the two mayors painted an optimistic picture of border management where security is not at odds with proper asylum management.
“Our offices are working closely with the Biden Administration and with various community organizations on the ground to ensure that there are resources in place to execute a comprehensive plan to process asylum seekers, crack down on cartels, and establish appropriate COVID-19 protocols. We must remain steadfast in our work to provide refuge to those fleeing persecution and violence in their home countries, just as our European allies are doing with Ukrainian refugees,” Romero and Mendez wrote.
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Read the complete article at the link.
Hats off to Mayor Romero (Tucson) and Mayor Mendez (Brownsville) for standing up for the rule of law and human decency and pushing back against false xenophobic rhetoric from both the GOP nativists and their “values challenged” Dem “fellow travelers.”
A federal judge in Louisiana says he intends to block the Biden administration’s plans for rescinding Title 42, siding with GOP-led states that had asked for the courts to force the White House to temporarily retain the pandemic-era border policy.
The decision from Judge Robert Summerhays, an appointee of former President Trump, will prevent the Biden administration from carrying out its plans to end Title 42 on May 23 and once again allow migrants to seek asylum.
The order, though temporary, is a victory in a suit initially filed by Louisiana, Missouri and Arizona that now includes some 20 GOP-led states.
It’s not yet clear what the terms of the order will be, as a summary of the hearing — which was not open to the public — said “the parties will confer regarding the specific terms to be contained in the Temporary Restraining Order and attempt to reach agreement.”
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Read the complete report at the link.
What’s wrong with a system where scofflaw judges undermine, rather than stand up for, the rule of law and the most vulnerable among us? The word “cowards” comes to mind!
U.S. officials say a majority of the Ukrainian refugees want to stay in Eastern Europe because they have family fighting in the war and eventually hope to return home.
Advocates have said the U.S. should take far more than 100,000 refugees and do more to expedite the process.
To qualify for admission to the U.S. under the new expedited program, officially known as Uniting for Ukraine, people must have been in Ukraine as of Feb. 11; have a family sponsor in the United States; complete vaccinations and other public health requirements and pass background checks.
Typically, they would start the application process in their home country, but that’s no longer possible because the U.S. pulled its diplomats from Ukraine. The State Department will expand resettlement operations in Eastern Europe under the new program to compensate.
Most will receive two years of residence and authorization to work in the United States under what’s known as humanitarian parole. Those who coming to the U.S. through the formal refugee process, including thousands who will come as members of religious minority groups, will have permanent legal residency.
It will be a streamlined process in Europe, but refugees won’t be able to complete it in Mexico, senior administration officials told reporters, speaking on condition of anonymity to discuss the program before the public announcement.
Instead, Ukrainians who show up at the border will generally be turned away without being able to apply for asylum under a public health order known as Title 42 that has been in place since the start of the pandemic in March 2020.
The Centers for Disease Control and Prevention has said the use of Title 42, which has been used to turn away more than 1.7 million people, is set to end May 23. The agency is under pressure to keep it in place not to control COVID-19, as it was supposedly intended, but to help ease an increase in migrants seeking to cross the border.
Critics of the use of Title 42 at the border have pointed out that it denies people their right under U.S law and international treaty to make claims for asylum and forces migrants to return to dangerous conditions in Northern Mexico and elsewhere.
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Read the full article at the link.
Actually, although you wouldn’t know it from the Biden Administration’s bizarrely twisted policies, an “asylee” is a “refugee” who shows up at our border and seeks admission. Except that we eliminated our asylum program at the border without any legislative repeal. Got that?
White Ukrainian refugees who came to the border because we had no functioning refugee program in Europe have been admitted over the past few weeks, racing ahead of non-White refugees who have been stuck in Mexico under the Administration’s ill-advised, immoral, and illegal continuation of Stephen Miller’s bogus Title 42 charade aimed at barring refugees of color. Now the Biden Administration proposes to treat Ukranians at the Mexico-U.S. border just as horribly as it does Haitians, Central Americans, and African refugees.
But, perhaps not quite as badly. They probably won’t be able to “orbit” them back to torture and death in Ukraine because of logistics, if for no other reason.
Ironically, in a relatively short period of time, humanitarian organizations had put together a program for the orderly screening and admission of Ukrainian asylum seekers whom the Administration quickly found a way to “exempt” from their Title 42 charade.
Logic might suggest that such a program could be expanded to non-Ukrainian refugees at the border. But, logic, common sense, courage, and expertise play little role in Biden Administration human rights policies. Instead, the Administration has just mindlessly decided to screw everyone at the border, with some largely unprincipled exceptions, until May 23, when they might, or might not, begin following the law again.
Wonder how politicos of both parties will react as Ukrainians at the southern border are now left to “twist in the wind” as if they were “mere refugees of color?” That’s likely to lead to some pretty ugly media coverage.
Honestly! Is this any way to “run the railroad” with human lives at stake?
GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina Vera
“I really do not find enough words to let you know how grateful I am to all of you for your wise and timely guidance at all times and for the dedication and commitment that you assumed from the first moment towards our asylum case.”
Please join me in congratulating Immigration Clinic client T-G and her son F-P, from Venezuela, and their student-attorneys Karoline Núñez, Samuel Thomas, Alexandra Chen, and Jeremy Patton. The clients’ asylum application was filed April 28, 2017, their interview at the Asylum Office was on November 1, 2021, and the grant was issued March 21, 2022. T-G received the grant yesterday.
T-G is a survivor of domestic violence at the hands of her husband. He’d punch T-G, force her to have sexual relations, infected her with a STD, and he blamed her for their daughter’s neurological issues. Their daughter contracted Zika but was unable to receive the appropriate treatment because T-G was not a supporter of the Maduro government. Their daughter died at age 14.
Many congrats to the GW Immigration Clinic and all the GW All-Stars! 🤮⚖️
Let’s get behind the intentional dehumanization and the chronically misleading “numbers” being thrown around by nativists, some so-called “moderate” Dems, and the DHS. Put a “human face” on our nation’s dereliction of legal duty and abandonment of values at out Southern border.
The Faces Of Human Suffering @ Our Border PHOTO: The Guardian
This case is a compelling example of the types of refugees, many women and children and most people of color, who are stuck at our Southern Border as illegal suspension of asylum laws, based on racially- motivated bogus “public health” grounds grinds on. With some legal assistance and a fair and orderly system in place, many of those waiting could qualify for asylum if given a fair chance under the law.
Access to the asylum system, representation, and fair and impartial adjudication are essential to success. Right now, the Biden Administration is denying all three.
Make no mistake, this disingenuous action would kill asylum for good! These guys don’t even have the guts to admit that they are now carrying out Stephen Miller’s xenophobic war on immigrants and refugees of color.
Biden ran on an elimination of Title 42 and restoration of the legal asylum process. If 18 months after the election they lack a “plan,” there is no reason to believe that 60 more days would make a difference. It’s now or never!
60 days would bring us even closer to the mid-terms. If Dems are scared to follow the law now, that’s not going to improve as the midterms get even closer.
You can be sure that once the midterms are past, particularly if Dems get “blown out” as they fear, they will claim that the time “isn’t right” for any immigration “reform” (although, following the law is hardly a real “reform”) in advance of the 2024 election. If the GOP wins in ’24, the effective elimination of legal immigration — with or without legislation — will be finalized.
This has nothing to do with COVID at this point. It never really did. It was always about finding a pretext to close the border and keep it closed — at least to non-White refugees. But, since COVID constantly mutates, there will always be some sort of “COVID emergency” out there for the foreseeable future.
Asylum applicants have NOT been a significant source of COVID.They are far less of a threat to our health, safety, and security than GOP “magamorons” who eschew vaccination and basic public safety precautions. The Biden Administration should have a plan in place to insure that asylum seekers are tested and if necessary vaccinated before admission.
If we have no legal asylum system at the border, no functional refugee system abroad, and no hope for the future, the only way for individuals to seek protection will be by using smugglers to enter illegally and then hoping to “lose themselves” in a burgeoning “extralegal population” throughout out America. Once we abandon any pretext of a legal system for asylum seekers, the border will get further and further out of control. That will add to the GOP’s claims that more and more cruel, draconian, and punitive measures are necessary. But, they won’t stop desperate people from attempting entry until they either succeed or die in the process.
Contrary to the misguided blather of some Dems, there will never be a better time for Dems to support asylum seekers. They are concentrated in border areas, and eager to have their claims heard. Orderly processing and admitting as many as qualify, in a period of artificially reduced migration, would help the economy, raise tax revenues, and address supply chain issues. If not now, when?
Restoring asylum law is a legal requirement, not a “strategy,” “policy,” or “political choice.” If Dems turn their backs on the rule of law, what makes them different from the GOP?
If this divisive nonsense and backsliding on basic constitutional, racial justice, and social justice issues continues, progressive Dems are going to be faced with having to make a decision about the party’s future.
Progressive Dems make up a key part of the party’s core base and a disproportionate amount of the “boots on the ground, grass roots enthusiasm.” Republicans aren’t going to vote for Dems, no matter how xenophobic, hateful, and racist Dems are toward migrants. So-called “independents,” are neither going to fill the Dems coffers nor pound the pavement and work the phone lines to “get out the vote.”
So, arrogant “Title 42 Dems” are assuming that they can “spit on” immigrant justice, racial justice, economic justice, and social justice and that their “core support” among progressives won’t diminish because they will always be preferable to “Trump Republicans.”
All in all, it’s a “big middle finger” to progressives and their social justice agenda. That’s an agenda that Biden actually successfully ran on.
If progressives really believe in a pro immigrant, pro rule of law, racial justice agenda, then they need to stand up to the backsliders and let them know that there will be real consequences of yet another “sellout of immigrants’ rights.” We’ll see whether progressive Dems have more backbone and courage than their “Title 42/Miller Lite wing.”
But, the Post badly missed the larger point — NO refugee can afford to wait, be they White Ukrainians, Black Haitians, Cameroonians, and Congolese, or Latinos from the Northern Triangle, Venezuela, and Nicaragua! Our obligations to asylees are not supposed to be “race-based!”
The U.S. has had a legal refugee and asylum system for more than four decades. During that time, Congress has made several amendments of the law to allow DHS to rapidly process and summarily remove those appearing at the border who, after prompt expert screening by Asylum Officers, cannot establish a “credible fear” of persecution.
Restrictionists and shamefully some so-called moderate Democrats, and sometimes CBP, seem to have conveniently “forgotten” that the law was designed to deal fairly and promptly with so-called “mass migrations” long before the advent of the bogus Title 42 charade.
For some periods during the 40 years since the enactment of the Refugee Act of 1980, the U.S. has run functional refugee and asylum programs. Not “perfect” or perhaps even “optimal,” but “functional.”
They have done this by employing experts, cooperating with NGOs (domestic and international), and building resettlement and support systems spearheaded by NGOs, using Government grants, and promoting teamwork and coordination with states and localities.
It has only been when Administrations of both parties have mindlessly turned away from human rights experts and followed the misguided and tone-deaf gimmicks advocated by nativists and apostles of “enforcement only deterrence” that the legal systems for refugees and asylees, and efficient, humane border enforcement, have fallen into disorder.
While refugee and asylum laws could undoubtedly be improved, contrary to the media blather and nativist grandstanding, we have the basic legal framework to deal with the current refugee and asylum situations at our borders and beyond. The question is whether the Biden Administration and Dems have the will, vision, competence, and willingness to cooperate with human rights experts to fix the mess intentionally created by Trump and return human decency, competence, and the rule of law to our borders! If not now, when?
Katharina Obser Director of Migrants Rights and Justice Women’s Refugee Commission PHOTO: Women’s Refugee Commission website
Yesterday at 2:08 p.m. EDT
An unfinished area of the border wall between the United States and Mexico near Sasabe, Ariz., on Jan. 23. (Salwan Georges/The Washington Post)
With respect, it was breathtaking how much Marc A. Thiessen’s April 13 op-ed, “Biden to turn border crisis into a total catastrophe,” mistook Trump-era “public health” policy for border security, conflated families fleeing for their lives with fentanyl crossing the U.S. border and carelessly suggested that returning to normal asylum processing means Wild West open borders.
Seeking asylum is a right guaranteed under U.S. and international law. Ending Title 42 — a policy that weaponizes public health law to shut down the U.S. asylum system, which has been long decried by public health experts — simply means that people fleeing danger can once again exercise their right to apply for protection. It is policies such as Title 42, rather than the act of seeking asylum itself, that cause harm and catastrophe at our border. Title 42 has artificially inflated apprehension numbers because those expelled are left with no choice but to try again and again to seek safety.
Let’s remember that Poland, a country smaller than the state of New Mexico, just took in 2 million refugees in one month. The United States can certainly ensure a fair and orderly asylum system to welcome people with dignity. It’s the right — and legal — thing to do.
Katharina Obser, Washington
The writer is director of the Migrant Rights and Justice program at the Women’s Refugee Commission.
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Thiessen is chronically wrong, misinformed, and misleading. He’s a righty shill. Why the Post finds it necessary to insult its readers by publishing him is beyond me. But, he’s not the problem here! Merely a “toxic symptom.”
The problem is lack of resolve, planning, and commitment to human rights and the legal rights of refugees and asylum seekers within the Biden Administration and by some misguided Dem politicos. The Administration should be screening, organizing, and “pre-processing” asylum claims in Mexico RIGHT NOW, TODAY, so that there is an orderly, timely process in place BEFORE May 23. An “army” of Asylum Officers and NGO volunteers should be working together NOW to determine what easily grantable applications can be moved to the front of the line and actually granted on May 28 when new regulations go into effect.
From what I’ve read and heard, this isn’t happening. The Administration isn’t taking the necessary and available steps to make the system work at ports of entry and to use that success to establish the system’s credibility among asylum seekers and thereby discourage and “dis-incentivize” dangerous and problematic unauthorized entries between ports of entry.
The best way of “shutting down the Abbotts and the Thiessens of the world” is to get a functioning legal system back in place at the border using available legal tools and new regulations to insure that those entitled to asylum are promptly and favorably processed and admitted and that those not entitled to admission or protection are expeditiously returned.
It can be done! But, NOT the dilatory and confused way the Biden Administration appears to be going about it!
Also, a credible system that provides practical precedents and “real life examples” about who does and who does not qualify for asylum would help combat the misinformation about our legal system spread by smugglers, nativists like Thiessen, and disgracefully, some Dems.
That, in turn, should help individuals in countries in crisis to make better, more informed decisions about whether to seek asylum in the U.S. Also, the Biden Administration needs a robust, realistic refugee program for Latin America and the Caribbean. That would make it unnecessary for those who are refugees to come to the border to apply for asylum.
Katharina, you need to pick up the phone, call your contacts in the Biden Administration, and get them off their tails and laser-focused on solving the problems, before it is too late, rather than “wandering in the wilderness.” Sadly, Thiessen isn’t the only one talking nonsense and spreading misinformation!
Supposedly responsible officials in the Biden Administration, those who have disgracefully dragged their collective feet on lifting the Title 42 charade, restoring the rule of law to asylum, and long overdue due process reforms of the Immigration Courts, are “channeling Thiessen.” That’s as idiotic and counterproductive as it is immoral. It’s also “bad politics” — even if some Dems are too blind and scared to admit it!
Inexcusably, the experts who understand what’s happening at the border, the disastrous human effects, and who have the skills and visionary thinking essential to restore the rule of law at the border are largely “on the outside looking in.” But, Katharina, if you and other leaders of the NGO community can’t get the Biden Administration out of their “perma-funk” and focused on pulling out all the stops to fix the asylum system by May 23, their “planned failure” will become your never-ending problem. Worst of all, vulnerable, innocent humans, who want only to be treated fairly and in accordance with law, will continue to suffer unspeakable fates at the hands of our Government’s ineptitude!
Elliot Spagat and Paul J. Weber report for the AP:
. . . .
Last month, the Biden administration unveiled a long-discussed and potentially significant change to expand authority of asylum officers to decide claims, not just initial screenings. It is designed to decide cases in months instead of years, but officials say there are no additional funds for its launch, expected in late May, and to expect a slow start.
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Read the complete article at the link.
A “slow start” = DOA! If you’re not going to use it to make asylum work at the Southern Border after the lifting of the Title 42 blockade, when are you going to use it? There are ways that a competent Government could have made this work.
Why push for and tout a change you’re not fully prepared to implement? How come with 16 months to solve a “day 1” problem they campaigned on (for Pete’s sake), the Biden Administration is still “shooting blanks?”
Former insider tip: There are always resources and methods to deal with the “really important stuff” in Government. I was involved in numerous “immigration emergencies” over several decades as a Government executive and manager under Administrations of both parties. I never remember telling anyone or being told “we can’t afford that.” It was always a question of “make it happen,” and we’ll worry about how to pay for it later. So that tells you where an orderly asylum system at the border ranks in this Administration.
As May 23 approaches, the inexcusable failure to reform the Immigration Courts to bring in and empower competent practical scholars with the skills to make the asylum system work in a fair, efficient, manner driven by due process is likely to loom larger and larger, despite Garland’s concerted effort to ignore it. “Expedited dockets,” relying on judges who barely know how to grant asylum, let alone move grants fairly and efficiently through the system, is NOT going to solve the problem.
Actually, a minimally competent Administration could have worked with NGOs over the past month to identify, screen, prioritize, and informally process grants, screen the refugees for COVID, and parole them in under Title 42 exceptions to have their grants “finalized” by Asylum Offices in the U.S. on or shortly after May 28.
But that would take folks with some imagination andthe expertise to run rational “expedited procedures” rather than the clueless, backlog enhancing, “Clown Show” 🤡 that Garland and Mayorkas have employed to date!
It would also take officials who really believe that legal asylum is a right and a key part of our legal immigration system that should be embraced, not feared, shunned, and disabled. Obviously, that belief is lacking among the Biden politicos.
Expediting grantable asylum cases without having to go through the Immigration Courts was what the Asylum Offices originally were created to do.But, it appears that the Biden Administration views the Asylum Office more as a potential “denial assembly line” that will move more quickly than the malfunctioning “denial factory” that Sessions and Barr constructed in the Immigration Courts and that Garland has, inexplicably, retained in its “weaponized against asylum seekers” structure and staffing.
“White Guy” cases, like Ukrainians, presumably can be whisked through the new system to success. Meanwhile, “Nonwhite cases” can be killed off rapidly and then assigned to “denial judges,” with records of faithfully killing most asylum cases, to “shoot anything that might still be moving.”
That process doesn’t appear geared to garner much assistance from the only groups who could actually “bail the Administration out” at the border —NGOs and asylum experts. But, despite the human rights rhetoric when seeking votes in 2020, this Administration appears to be more committed to external chaos, protestations of helplessness, and finger-pointing than it does to creative problem-solving and running a fair, functional legal asylum system.
Secretary Mayorkas Designates Cameroon for Temporary Protected Status for 18 Months
Release Date: April 15, 2022
WASHINGTON— Today, the Department of Homeland Security (DHS) announced the designation of Cameroon for Temporary Protected Status (TPS) for 18 months. Only individuals who are already residing in the United States as of April 14, 2022, will be eligible for TPS.
“The United States recognizes the ongoing armed conflict in Cameroon, and we will provide temporary protection to those in need,” said Secretary Alejandro N. Mayorkas. “Cameroonian nationals currently residing in the U.S. who cannot safely return due to the extreme violence perpetrated by government forces and armed separatists, and a rise in attacks led by Boko Haram, will be able to remain and work in the United States until conditions in their home country improve.”
A country may be designated for TPS when conditions in the country fall into one or more of the three statutory bases for designation: ongoing armed conflict, environmental disaster, or extraordinary and temporary conditions. This designation is based on both ongoing armed conflict and extraordinary and temporary conditions in Cameroon that prevent Cameroonian nationals, and those of no nationality who last habitually resided in Cameroon, from returning to Cameroon safely. The conditions result from the extreme violence between government forces and armed separatists and a significant rise in attacks from Boko Haram, the combination of which has triggered a humanitarian crisis. Extreme violence and the widespread destruction of civilian infrastructure have led to economic instability, food insecurity, and several hundred thousand displaced Cameroonians without access to schools, hospitals, and other critical services.
This marks the first time the Secretary of DHS will permit qualifying nationals of Cameroon to remain temporarily in the United States pursuant to a TPS designation of that country. Individuals eligible for TPS under this designation must have continuously resided in the United States since April 14, 2022. Individuals who attempt to travel to the United States after April 14, 2022 will not be eligible for TPS. Cameroon’s 18-month designation will go into effect on the publication date of the forthcoming Federal Register notice. The Federal Register notice will provide instructions for applying for TPS and an Employment Authorization Document (EAD). TPS applicants must meet all eligibility requirements and undergo security and background checks.
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According to TRAC, there were 3,191 pending Cameroonian cases in Immigration Court as of March 22, 2022. https://trac.syr.edu/phptools/immigration/court_backlog/. On the basis of my experience, I would guess that most of these are in the mid-Atlantic region.
Cameroonian asylum cases were a “staple” in Arlington over my 13 years on the bench ending on June 30, 2016. For example, in FY 2012, they were approximately 9% of my asylum docket, although that number dwindled between then and my retirement.
The other 1/3 of cases are disposed of in “other” ways. This indicates that with TPS as a tool, almost all of the pending Cameroonian cases at EOIR could be resolved in short order without diminishing anyone’s rights.
That’s a “drop in the bucket” on a 1.8 million case backlog. But, it does suggest that better docket management tools, ones that comply with due process, are available to Immigration Judges and could be built upon for the future with more visionary and due-process-focused leadership at EOIR and DOJ.
Sadly, this profile also confirms that the Biden Administration’s illegal use of Title 42 to return Cameroonians to harm’s way without an opportunity to apply for asylum has been exactly the race-based, grotesque violation of asylum laws, human rights, and human dignity that critics have asserted.
It also graphically demonstrates why real Democrats, core progressive supporters who put Biden and company in office, must aggressively stand up against the disgraceful agitation by a minority of Dem legislators and uninformed, amoral politicos within the Administration to retain the already totally unjustifiable Title 42 blockade!
Continuing violation of domestic and international law through use of Title 42 is NOT, I repeat NOT, an option! Yes, the Administration needs to get a plan in place for an orderly restoration of asylum processing for Cameroonians, Haitians, Latin Americans, Ukrainians, Russians, Afghans, and allother nationalities at our Southern Border.
Fair, humane, advance processing of those seeking asylum at the border NOW is the essential key to avoiding a mess on May 23. Pumping credibility, efficiency, humanity, and proper generosity into the asylum system at the border NOW will reduce the chances of an “immediate backlog” come May 23.
More importantly, showing that our laws can work in a fair, humane, and efficient way will encourage individuals seeking asylum to come to legal ports of entry to apply, rather than seeking more dangerous and difficult irregular entry that does not hold out the same prospects for rapidly obtaining legal status. Why wouldn’t legitimate asylum seekers present themselves at legal ports of entry if we had a fair, functioning, transparent system for processing them?
By eliminating the need and reducing the motivation for legal asylum seekers to attempt irregular entries to obtain refuge, the traffic between ports of entry should be reduced even though of course not eliminated. And the “expedited removal” procedures available under current law to CBP for those apprehended without credible asylum claims while attempting unauthorized entires are perfectly adequate to quickly process removals of those with no legal claim to be here!
Assuming that all or most asylum seekers will attempt unauthorized entries between legal ports will become a dangerous “self-fulfilling prophecy.” Yet, to the extent that the Biden Administration has a plan, it appears to be driven by the misguided notion that all the “action” will be at unauthorized crossing points. See, e.g., https://immigrationimpact.com/2022/04/12/what-is-bidens-plan-to-end-title-42/ (a sad commentary on wobbly, uninformed, unprincipled, pedestrian, un-creative thinking about an important solvable problem if I’ve ever seen one).
That’s only going to happen if the Administration continues to ignore the pressing need for immediate steps to establish the credibility of the asylum system at ports of entry.
The Administration went to considerable trouble to establish a “new” regulatory framework for processing asylum claims at the border (which becomes effective on May 28). I was one of those who pointed out serious flaws in the new system adopted.
One of the main defects is that for integrity, legal guidance, and effective supervision it heavily relies on Garland’s dysfunctional, hopelessly backlogged, and still anti-asylum-tilted Immigration Courts, at least where some of the common types of asylum applications at the border, like those from Northern Triangle countries, are concerned. These “courts that aren’t really courts” have shown a disturbing lack of asylum expertise and little effective commitment to a fair and practical application of asylum laws nationwide. It’s basically still a “denial factory” — just as Sessions and Barr staffed and manipulated it to be. That has spelled disaster in the past and will continue to do so in the future unless it can be “sidestepped” by granting more cases at the border without calling on these “courts.”
There’s where the “new system” has potential to work! One key advantage of the “new system” that many of us applauded is the potential for the USCIS Asylum Office expeditiously to grant many more claims at or near the border, thus entirely avoiding the broken Immigration Courts, prolonged detention, and releasing individuals to the interior without status.
As asylees, refugees can be admitted in a legal, work-authorized status right off the bat. Not only does that eliminate the never-ending debate about appearing for later Immigration Court hearings, but it also helps the economy and resettlement by putting individuals anxious to support themselves and their families directly into the workforce at a time when we need workers in many segments of the economy! It also avoids the current wildly inconsistent, unprincipled, and often defective asylum adjudication that now plagues Garland’s Immigration Courts, particularly in border areas and detention centers.
But, success isn’t going to happen by “magical thinking,”operating in “Stephen Miller’s world,” repeating platitudes about border crises, and reviving the past mistakes of “enforcement/deterrence only regimes.” I call BS! A “border crisis” is what happened in Poland! We’re not even remotely close to that!
It requires the Biden Administration to get the lead out, shut down the “naysayers,” work with NGOs, and get the expertise and manpower in place NOW at ports of entry and in Mexico to achieve success on May 23! But, continuing the illegal Title 42 charade/blockade is not an option that is on the table!
Daniel M. Kowalski
15 Apr 2022
immigration
chavez
inflation
Linda Chavez
Linda Chavez: More Immigration, Less Inflation
Linda Chavez, Apr. 14, 2022
“… [A]dmitting asylees and giving them work authorizations, as well as allowing in more Ukrainian and Afghan refugees, could alleviate some of the country’s labor shortage. The Department of Labor reported last month that there were 11.3 million job openings in February, a number that has remained at historic highs for months. We should be opening our doors wider so that those seeking refuge in the United States can come here and help fill those jobs. …”
“Linda Chavez is a senior fellow at the National Immigration Forum. Chavez is the author of “Out of the Barrio: Toward a New Politics of Hispanic Assimilation“, which the Denver Post described as a book that “should explode the stereotypes about Hispanics that have clouded the minds of patronizing liberals and xenophobic conservatives alike”, as well as her memoir “An Unlikely Conservative: The Transformation of an Ex-Liberal”. In 2000, Chavez was honored by the Library of Congress as a “Living Legend” for her contributions to America’s cultural and historical legacy.
Chavez has held a number of appointed positions, among them Chairman, National Commission on Migrant Education (1988-1992); White House Director of Public Liaison (1985); Staff Director of the U.S. Commission on Civil Rights (1983-1985); and she was a member of the Administrative Conference of the United States (1984-1986). Chavez was the Republican nominee for U.S. Senator from Maryland in 1986. In 1992, she was elected by the United Nations’ Human Rights Commission to serve a four-year term as U.S. Expert to the U.N. Sub-commission on the Prevention of Discrimination and Protection of Minorities.
Chavez was also editor of the prize-winning quarterly journal American Educator (1977-1983), published by the American Federation of Teachers, where she also served as assistant to AFT president Al Shanker (1982-1983) and assistant director of legislation (1975-1977).
Chavez serves on the Board of Directors of ABM Industries, Inc. a Fortune 500 company, as well as on boards of several non-profit organizations.
Chavez was born in Albuquerque, NM, on June 17, 1947, received a Bachelor of Arts degree in English Literature from the University of Colorado in 1970 and a Master of Fine Arts in Creative Writing from George Mason University in 2012. She currently resides in Silver Spring, MD.”
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Come on, Biden Administration (and so-called “moderate Dems”), get with the program! Repeating “sanitized versions of Stephen Miller talking points” isn’t going to get you a single vote from Trump’s GOP, which is most of the party now. They have the xenophobic vote locked up.
But, in addition to energizing your real supporters and activists in the Dem base, making border policy work by smoothing the admission of qualified asylum seekers and refugees from all countries (not just “White guys”) might have some “crossover appeal” to at least a few conservatives who value economic vibrancy, are willing to acknowledge they their ancestors were once immigrants, and are somewhat turned off by the overt racism, chronic resentment, and insurrectionist, anti-American nonsense that has become part of the GOP “party line.”
And, showing that Government can actually solve problems without breaking the bank and improve the economy in the process might give some boost to standing among independents and centrists who thought that they were getting competence and leadership in return for voting out Trump’s incompetent Clown Show.
Or maybe Abbott, like many other Republican politicians, simply thinks his voters are stupid.
He might presume that angry voters will see backlogged traffic, empty store shelves and struggling businesses and blame President Biden, even though this latest contribution to supply-chain woes comes courtesy of Abbott’s own policies. If that sounds far-fetched, recall that Abbott and other Republicans have tried to blame Biden for mounting covid infections and deaths, even as these same politicians have deliberately sown distrust in vaccines and undermined or outright barred efforts to increase vaccination and other covid-prevention measures.
If Abbott’s border policy is motivated by the last of these possible explanations — if he’s assuming Texans are too dense to figure out causality here — let’s hope voters will be motivated to prove him wrong.
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Read Catherine’s full article at the link.
As Catherine points out, Texas voters have a golden opportunity to show their “clown prince” 🤡the door this fall. But, I wouldn’t count on it.
Meanwhile Abbott claims to have negotiated “security agreements” with several Mexican Governors thereby “allowing” him to “relax” his unneeded blockade. Exactly what this grandstanding means is opaque. Trucks entering the U.S. are ready checked for drugs and migrants by CBP at the border. Somehow, I doubt that Mexican authorities are going to do a better job than CBP.
Of course, the best way to deal with Abbott’s stunts is for the Biden Administration and NGOs to work together to encourage asylum seekers to present themselves in an orderly manner at legal ports of entry once the “Title 42 Blockade” is lifted. Indeed, as I’ve perviously suggested, there should be a system in place NOW to “prescreen” asylum applications in Mexico and to parole as many as possible of those whose claims pass credible fear and who can be resettled away from the border areas in advance of May 23. That would avoid long lines and confusion.
New regulations that would allow Asylum Officers to outright grant well-documented asylum cases go into effect on May 28. Surely, somebody out there in the “world of rational thinkers and doers” should be able to “leverage” this opportunity to cut through the BS and finalize grants of deserving cases without more bureaucratic red tape. Plan to show that that the new system can work. Start building the necessary credibility and confidence in orderly legal processing among asylum seekers now, rather than hoping that they all die or go away before May 23. They won’t.
That’s just an “expanded version” of what’s already happening for Ukrainian asylum seekers at the border. But, unfortunately, I haven’t seen much hard evidence that either the Administration or the NGOs are planning for “achievable success” rather than “finger pointing failure” on May 23. The real victims here are, as usual, the migrants whose humanity and rights are routinely ignored in the politicization of the border.
Let’s look at what has happened with another Abbott stunt mentioned by Catherine:“Bussing” asylum seekers from the border to downtown DC and dropping them near the headquarters of Fox News, NBC News and C-SPAN. Obviously, Abbott anticipated a “Fox photo op” of bewildered folks wandering the streets, causing traffic jams, and sparking anti-immigrant protests and overreaction by local Dem officials.
But, thanks to local NGOs, the opposite has happened. Volunteers have met the arriving busses, helping those bound for other areas to make the right transportation connections and directing those bound for the DMV area to the appropriate local organizations who can assist them in orderly resettlement.
Most of the migrants who volunteered for the busses expressed gratitude for the free transport. Few appeared to know that they were intended to be part of “Nativist Political Theater.” Both CBP and local NGOs at the Texas border worked to facilitate those seeking transportation to use the busses.
Evidently inadvertently, in this case Abbott’s publicity stunt appears to have “morphed” into a good example of how cooperation among Federal and state authorities, NGOs in different areas, and migrants themselves can work to facilitate orderly processing of migrants once they are in the U.S.
Who knows if this initial success will be temporary or long term. If the latter, it will be interesting to see if Abbott will continue to fund efforts to make the immigration system work rather than to showcase itsanticipated failures. But, in any event, this should be a practical example for the Biden Administration of how public-private partnerships, teamwork, and cooperation can work even across party and ideological lines.
Unfortunately, to date, the Biden Administration’s wobbly approach to immigration and human rights has failed to capitalize on almost every opportunity to show the benefits of an orderly, legally compliant, and humane immigration policy.
Will they finally get this one right? Or, as Catherine has suggested before, will this just be another in a too long line of Biden’s missed opportunities to show that the rule of law and legal immigration work for America?
🇺🇸Due Process Forever!
PWS
04-15-22
UPDATE:
RAMPELL “DUNKS” ON ABBOTT AS TEX GOV FORCED TO RESCIND IDIOTIC STUNT ORDER!
The American Trucking Assn. called the inspections “wholly flawed, redundant and adding considerable weight on an already strained supply chain.”
This stunt, not surprisingly, turned up neither a single smuggled individual nor any drugs. They did turn up some safety violations, actually the only thing Texas officials were legally empowered to inspect for. But, safety problems have been around forever, and Abbott hasn’t given them a second thought as he misallocates state resources on a grotesque scale. See, the bogus “Operation Lone Star.”
The best way to deter human smugglers is to reopen ports of entry to asylum seekers and grant the many worthy applications out there, thereby ending years of manipulating asylum law to deny protection to legally qualified refugees.
While there of course will always be pressure on the border, the many individuals who seek only a fair chance to present their legal claims for asylum through our legal system will no longer be forced to use smugglers to gain “black market” refuge just because the Government has shirked their legal responsibilities!
That ought to make the border safer and CBP’s job at least somewhat easier.
It all depends on whether the border asylum system is credible. So far, no Administration has succeeded in pulling that off.
All have employed various degrees of bias and inhumane detention to “hold down” the number of asylum grants at the border. A legitimate legal asylum system at the border is possible, particularly if accompanied by a robust refugee program beyond the border. But, possible doesn’t mean probable!
Opinion: Democrats are missing the bigger immigration issue
By Catherine Rampell
Democrats are terrified that a coming border surge might tank their midterm chances.
But they have largely ignored a much more serious immigration-related political risk. The problem in the months ahead isn’t that the United States will allow in too many immigrants; it’s that we’ll admit too few, particularly the kinds of workers who can fill critical labor-market shortages.
The Biden administration recently announced it would soon end Title 42, a Trump-era border-control policy. Citing the public health emergency when it invoked the policy in March 2020, the Trump team used the pandemic as a pretext to expel all arriving migrants without first allowing them to apply for asylum, as they have a legal right to do. Public healthexpertsandimmigrationadvocates — and many elected Democrats — have long condemned the policy, which has been used to carry out more than 1.7 million migrant expulsions.
President Biden’s own appointees have called the policy illegal and inhumane, with multiple high-level officials blasting it when they resigned. But Biden delayed reversing Title 42, fearing bad optics and attacks from Fox News. (Which arguably was going to attack him as an “open borders” president regardless.)
As expected, right-wingers are now catastrophizing about the looming “Armageddon” that will follow Title 42′s unwinding.
As a result, some worried Democrats are demanding that Biden keep this (likely illegal) policy in place. They have been so fixated on bad-faith right-wing attacks that they have missed the bigger, and much more serious, immigration-related liability: the millions of immigrants whose absence from the U.S. workforce is putting upward pressure on inflation.
Which Democrats are being blamed for, and which voters appear to care much more about.
The United States is experiencing inflationary levels not seen in four decades. Americans are unhappy, and they are more than five times as likely to cite “inflation,” “cost of living” or the economy in general than immigration as the nation’s biggest problem. These economic concerns are, however, rooted at least partly in immigration policy.
Worker shortages are pervasive, with vacancies hovering around record highs. The resulting disruptions to supply chains and normal business operations have raised costs for companies and consumers. Some of these “missing” workers retired; some dropped out of the labor force because of care issues or illness. But a huge chunk were foreign-born workers who either never arrived in the United States in recent years or who were already here but have been forced out of their jobs because of government incompetence.
There are about 1.8 million fewer working-age immigrants in the United States today than would be the case if pre-2020 immigration trends had continued unchanged, economic researchers Giovanni Peri and Reem Zaiour estimate. Unsurprisingly, they also find that industries that had a higher percentage of foreign workers in 2019 — such as hospitality and food services — tend to have higher rates of unfilled jobs now.
These immigrants, legal and otherwise, are “missing” because of a combination of Trump policies, covid-19 (which the Trump administration cited to justify imposing even more immigration restrictions) and Biden’s foot-dragging.
Although Biden pledged more humane and efficient immigration policies when he ran for president, he has been slow to reverse many of President Donald Trump’s onerous paperwork requirements and other policies designed to reduce legal immigration. Biden’s sluggishness owes partly to the magnitude of the challenge of rebuilding the U.S. immigration infrastructure — and partly to that deep Democratic fear of how Fox News et al. might portray any efforts to help immigrants.
As a result, last year, the United States experienced the lowest levels of new international migration in decades, census data shows.
. . . .
A border surge is infinitely more telegenic and attack-ad-friendly than backlogged paperwork. But the missing immigrant workforce is what more directly affects voters’ pocketbooks — and, by extension, Democrats’ political fortunes.
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Read Catherine’s complete article at the link!
There is no need for a self-created “border surge” on May 23! We have a potentially quite efficient asylum screening and adjudication process in our existing law. If it were properly staffed and run, with competent legal and judicialoversight, asylum seekers would use it — even if “success” is far from guaranteed.
Experience has shown that asylum seekers in the U.S. who are represented, and therefore understand the system and their obligations, faithfully appear for hearings nearly 100% of the time, even when they appear likely to lose. Just because we as a nation have lost faith in our ability to operate under the the rule of law doesn’t mean that asylum seekers have! Obviously folks who have “hung around” in Mexico, in life-threatening conditions, for months or years, believing in a false promise of future fair and humane treatment by the U.S. aren’t as easily persuaded that our legal system is a sham as are our own politicos, bureaucrats, and pundits.
Sure, folks without asylum claims and those who don’t trust the system will continue to attempt unauthorized entry — particularly if the legal system lacks credibility, thus allowing smugglers to convince migrants to evade it.
But, with a robust asylum system functioning at ports of entry, CBP won’t be diverted by squandering resources “apprehending” (a serious misnomer) individuals who want nothing more than a fair and timely chance to present their asylum claims. CBP can concentrate their resources on those who truly intend to evade the legal system.
Even without the bogus Title 42, the law provides more than adequate tools for dealing with unauthorized entry. Those without documents are subject to “summary removal” by CBP Agents. Those subject to summary removal who claim asylum can be promptly screened for “credible fear” by trained USCIS Asylum Officers. Those who “flunk” credible fear are summarily removed under the existing order. Those who “pass” can be funneled into the legal asylum system and processed accordingly.
If you are a believer in “deterrence theory” for migrants who don’t have credible asylum claims, then the “expedited summary removal process” provides just that. No need to illegally invoke Title 42!
If the Obama, Trump, and now Biden Administrations had spent time and resources training Asylum Officers and reforming the Immigration Courts, instead of screwing around with futile (sometimes illegal) “enforcement only” gimmicks, idiotic walls, inhumane, expensive detention, inane messaging, and deterrence, there wouldn’t be largely manufactured “border emergencies.” Just a variety of fairly predictable “humanitarian situations” and opportunities to show how the rule of law works in a functioning democracy.
For example, the much feared and ballyhooed “caravan” that had Trump scared out of his (already limited) wits moved in “slow motion” to the border. A competent Administration could have processed them fairly, humanely, and timely upon arrival or shortly thereafter. Indeed, a competent Administration probably would have worked with the Mexican authorities and the UNHCR to have processed members ofthose “caravans” for refugee status, in an orderly manner, at a point in Mexico well-removed from our border!
If, after truly fair, humane, and timely processing at ports of entry few qualified (I deem this unlikely under a truly fair and competent system, but perhaps possible, who really knows, since we have been “chicken” to fairly adjudicate asylum claims from Latin American and the Caribbean for many years), then there’s your “legal deterrent” (for those who believe in deterrents) to those who might seek to come in the future.
“Caravans” don’t cross the border irregularly unless legal ports or entry are closed or de facto unvailable to them. Even then, most asylum seekers in caravans would prefer to wait for legal processing if it were available in a predictable, orderly, humane, fair, and timely manner. The Trump kakistocracy’s decision NOT to follow asylum laws and procedures at ports of entry actually caused unnecessary chaos, created danger, and provoked and encouraged unauthorized entries. The Biden Administration has, unfathomably, followed in Trump’s footsteps!
The “missing piece” for decades, across Administrations of both parties, has been a robust, realistic, well-staffed “outside the US” refugee processing system for Latin America and the Caribbean. If we REALLY don’t want folks “trying their luck” on asylum at the border, then give them honest and prompt answers to their refugee claims in or nearer to the countries in conflict they are fleeing.
The current law is by no means perfect. But, it’s a whole lot better than the politicos and bureaucrats who, for most of the past four decades, have failed to take straightforward, achievable steps to “make it work.” Refugee admissions overseas, and asylum admissions in the U.S. and at our borders, are a key element of our legal immigration system. It’s time to stop pretending otherwise!
And, as Catherine cogently points out, rapidly approving work authorizations and all types of applications for legal immigration under existing law also should have been “low hanging fruit” for the Biden Administration. A group of summer college students could have been trained in short order to wipe out the backlog of Employment Authorization Documents (“EADs”) during the summer of 2021.
Even now, with just a little initiative, creativity, and energy, USCIS could hire and train summer employees to handle many routine and repetitive “adjudications.” All “adjudications” are NOT equal! EAD backlogs, intentionally created by the Trump kakistocracy, are totally unnecessary and inexcusable under Biden.
How many retired Asylum Officers, USCIS Adjudicators with asylum experience, retired Immigration Judges, retired BIA staff attorneys, and retired Congressional immigration staffers has USCIS “rehired” during the past year to prepare for the reopening of the border?If they haven’t, why not? It’s not too late to get more qualified individuals on board temporarily and give them to tools they need to fairly and timely process credible fear cases.
How many agreements has USCIS entered with NGOs to prescreen, organize into orderly lists, and, where necessary, represent individuals now waiting at or near the Southern Border. If not, why not get some of those agreements into effect on an “expedited” basis by next Monday?
In Government, everything seems to be a candidate for bogus “expedited treatment” EXCEPT common sense, readily available measures that actually solve problems! Why is that? What’s an Administration that got elected by claiming “Government can work” going to do to prove that before May 23! Stop “making excuses for failure” and start solving problems!
It’s not rocket science! Dems must stop “hand wringing” about what they didn’t do in the last year and start making the system work under current conditions. That’s what “good government” is supposed to do!
Poland, a country of fewer than 40 million about the size of a large U.S. state, was able to handle 4-5 million Ukrainian refugees in a matter of weeks. Meanwhile the US is “paralyzed” by the idea that 60,000 might apply with more than a month of lead time to prepare, and an established, if now suspended, legal framework to use. Not to mention that Biden had more than a year’s “advance notice” that the asylum system would need rebuilding and rejuvenation at the Souther border. Gimmie a break! The Biden Administration was put in office largely to “make Government work” — not to mindlessly repeat GOP White Nationalist “woe is me” talking points!
On a smaller scale, religious organizations and voluntary agencies mobilized and organized almost overnight to assist the U.S. Government in processing Ukrainian refugees at the border. Why couldn’t those efforts be expanded and replicated for the largely non-White refugee hopefuls currently waiting? Why create an “emergency” that needn’t be? Why not put more time, effort, and creativity into ACHIEVING success, rather than thinking of excuses for anticipated failure or shifting blame to the “victims?”
Honestly, as the late, great political pundit
Casey Stengel would have said,“can’t anyone here play this game?”
“Time and time again, the Biden Administration’s inept and unprincipled approach to immigration and human rights leaves this guy scratching his head.” PHOTO: Rudi Reit Creative Commons
Also, Catherine Rampell understands the complex issues of immigration better than any “top level” official in the Biden Administration that I’m aware of. If they aren’t going to hire her, they should at least heed her advice. It’s free, accessible, clearly and succinctly written, and almost always “spot on!”
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
NIJC: On Friday (4/8) we learned from the government that it would not file an appeal in AsylumWorks v. Mayorkas. This means, happily, that the EAD Rules that delayed and in some cases denied access to EADs for asylum seekers are fully vacated. The vacatur applies to both the 30-day adjudication rule and the larger rule that had more than a dozen changes to EAD eligibility for asylum seekers.
NY EOIR Asks ICE to Submit PD Stance 3 Days Before Hearings
EOIR: In an effort to reduce our interpreter non-usage and our continuance rates, the New York – Federal Plaza Immigration Court has asked DHS that PD positions be provided to the court on matters scheduled for a hearing at least three days before the hearing. This would allow cancellation of the interpreter order without cost to the court, and would permit another previously scheduled case to be advanced into the open hearing slot. In addition, the court is endeavoring to identify cases already scheduled which are likely to be granted PD based upon DHS guidelines. We have requested DHS’s assistance in this endeavor. [It is unclear whether other courts will request the same.]
NYT: The C.D.C. finally announced at the beginning of April that it would lift its public health border restrictions on May 23, around the time of the year when migration typically increases. But this past week, the issue of Title 42 flared up again as Senate Republicans and some Democrats in Congress held up Covid funding in an effort to protest the administration’s decision to lift the health rule and tensions over the issue flared in both parties. See also The Democratic revolt over Biden’s border policy.
Hill: Sens. Thom Tillis (R-N.C.) and Dick Durbin (D-Ill.) told The Hill that they want to bring together a group of senators interested in trying to revive immigration discussions — a perennial policy white whale for Congress — after a two-week recess.
NPR: Visitations at federal and state prisons have largely resumed. Last year, for example, the Washington state Department of Corrections determined it was safe to reinstate visitations. But those who want to talk to loved ones in ICE detention must still rely on old-fashioned phone calls or video.
WaPo: Although the Florida Keys have been an entry point for refugees fleeing communist Cuba since the 1960s, officials say the increase in arrivals of migrants by boat represents a shift in migration patterns. Since the start of the year, more than 800 Haitians have landed in the 113-mile-long Florida Keys, made up 1,700 small islands. Two of the landings occurred in Ocean Reef, an exclusive gated community near Key Largo that is home to some of nation’s wealthiest residents, officials said.
WaPo: Cuban migrants are coming to the United States in the highest numbers since the 1980 Mariel boatlift, arriving this time across the U.S. southern land border, not by sea.
AP: Texas Gov. Greg Abbott on Wednesday delivered new orders along the U.S.-Mexico border and promised more to come as former Trump administration officials press him to declare an “invasion” and give state troopers and National Guard members authority to turn back migrants.
Reuters: U.S. appeals court on Wednesday said federal agencies properly withheld documents related to how they vet applicants for immigration benefits with the aim of uncovering possible terrorist ties, reversing a judge who ordered their disclosure.
Law360: The Third Circuit declined to halt the deportation of a man from India claiming he suffered political persecution there, reasoning that the immigration judge was correctly skeptical of his inconsistent accounts of the violence he claimed to have experienced.
CA5: [W]hether an applicant’s subjective belief that authorities would be unwilling or unable to help them is sufficient for asylum eligibility when paired with country condition evidence supporting that belief, notwithstanding that the underlying events do not support that conclusion. We think not… When she checked in, the police informed her “that the process would take at least two weeks.” She fled before those two weeks expired, and there is no evidence of what happened with the claim. Thus, the evidence supports the BIA’s finding that Sanchez-Amador “successfully reported one incident with the gang member to the police, but did not pursue the issue.”
LexisNexis: “Petitioner Jose Santos Boch-Saban, a citizen of Guatemala, seeks review of a Board of Immigration Appeals decision dismissing, as untimely, his appeal of an immigration judge’s order denying, as time and number barred, his motion to reopen and dismiss. We VACATE the Board’s decision and REMAND the case for consideration in the first instance of the issue of equitable tolling.”
DHS: Al Otro Lado v. Mayorkas is a lawsuit that relates to the U.S. government’s use of “metering” at land ports of entry on the U.S.-Mexico border. The Court in this lawsuit issued a Preliminary Injunction(PI) prohibiting the U.S. government from applying a rule known as the “third-country transit rule”(TCT)to certain people who were subject to “metering” before the rule took effect on July 16, 2019.
AP: Pennsylvania State Police settled a federal lawsuit alleging troopers routinely and improperly tried to enforce federal immigration law by pulling over Hispanic motorists on the basis of how they looked and detaining those suspected of being in the U.S. illegally, officials announced Wednesday.
NYT: Clients paid fees up to $30,000 as part of the yearslong scheme, an affidavit said. Some applications falsely claimed the clients had been abused by their spouses, prosecutors said.
Law360: The city of San Antonio, Texas, has agreed to pay the state $300,000 to settle both allegations lodged by the state’s attorney general that it was violating the state’s “anti-sanctuary city law,” and a subsequent lawsuit seeking to remove the police chief from office for the alleged violations.
Law360: People who were banned from the U.S. under now-defunct Trump-era travel restrictions urged a California federal judge to order the Biden administration to revisit their denied visa applications, saying the administration’s attempts to redress the harm don’t go far enough.
Law360: A D.C. federal judge extended the stay of his order directing the State Department to issue more than 9,000 diversity visas while the Biden administration appeals to the D.C. Circuit, but he unfroze his directive for the department to update the technology for processing the visas.
Law360: The House Judiciary Committee voted to advance a bill that would eliminate the Immigration and Nationality Act’s per-country cap for employment-based visas and raise similar caps on family-based visas, aimed at trimming immigration backlogs.
AILA: On 4/1/22, CDC released an order to terminate its Title 42 public health order on 5/23/22. The document assesses the current state of the COVID-19 pandemic, provides legal considerations, and describes plans for DHS to mitigate COVID-19 and resume use of Title 8. (87 FR 19941, 4/6/22)
AILA: On 3/11/22, CBP issued a memo to its Office of Field Operations stating that noncitizens in possession of a valid Ukrainian passport or other valid Ukrainian identity document, and absent national security or public safety risk factors, may be considered for exception from Title 42.
AILA: USCIS is issuing individual notices to certain TPS Syria beneficiaries whose applications to renew Form I-766 are pending. The notices extend the validity of their EADs until September 24, 2022. Guidance on filing Form I-9 is available.
DHS: The U.S. Customs and Border Protection (CBP) Unified Immigration Portal (UIP) provides agencies involved in the immigration process a means to view and access certain information from each of the respective agencies from a single portal in near real time (as the information is entered into the source systems). CBP is publishing this Privacy Impact Assessment (PIA) to provide notice of implementation of the UIP and assess the privacy risks and mitigations for the UIP.
USCIS: U.S. Citizenship and Immigration Services (USCIS) today announced a policy update to adopt a risk-based approach when waiving interviews for conditional permanent residents (CPR) who have filed a petition to remove the conditions on their permanent resident status.
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
The issue in Sanchez-Amador is whether a reasonable person in her position would believe that the Government of Honduras is “unwilling or unable” to protect her. On the facts set forth in the court’s decision, any reasonable person in her position would hold such a objectively reasonable view. Therefore asylum should have been granted.
The Honduran Government is so totally corrupt, inept, and disinterested in protecting its citizens, particularly women, that recent past “President Juan Orlando Hernandez [is] on the United States’ Corrupt and Undemocratic Actors list, under Section 353 of the United States–Northern Triangle Enhanced Engagement Act.” https://www.state.gov/u-s-actions-against-former-honduran-president-juan-orlando-hernandez-for-corruption/
Ricardo Zuniga, the U.S. Special Envoy to Central America recently said: “‘All we’re trying to do now is halt the slide’ of democracy and accountability, Zúniga said in an interview with The [L.A.] Times, ‘so that we can have some place to build from.’” https://apple.news/A9FpzsjRAQ2OoAyQZzHZm1A.
In other words, any a semblance of the rule of law and honest, minimally effective government in the Northern Triangle has long disappeared. Conditions are rapidly getting worse, rather than better. Conditions are so bad, that a better Administration or a better BIA could probably establish a “rebuttable presumption of failure of state protection in the Northern Triangle,” thus properly shifting to the DHS the burden of establishing, against all odds, that “state protection” against gangs and other basically uncontrolled third-party actors would actually be effective in a particular case.
This common sense action would also facilitate rapid, efficient, consistent, and correct approval of many credible, valid asylum claims now stuck in the endless, largely self-inflicted, backlogs at the Asylum Office and in Garland’s dysfunctional courts, not to mention at the border following two years of illegal suspension of our asylum laws. That’s as opposed to the unseemly “Institutionalized Refugee Roulette” now being played by Garland and his subordinates.
According to the Supremes in Cardoza-Fonseca and the BIA itself in Matter of Mogharrabi, asylum law is supposed to be generously applied to grant protection even where persecution, although reasonably possible, is significantly less than likely. But, in Garland’s dysfunctional “courts,” the current reality for vulnerable asylum seekers has moved far, far away from those supposed “norms.”
Although most asylum applicants come from nations with well-established records of serious endemic human rights abuses, “asylum denial rates” at EOIR range from 10% or less to a beyond outrageous 98% or more denials! Cases with basically the same facts might be routinely granted in one courtroom while being uniformly denied, usually for specious reasons, in the next.
Moreover, while the overall nationwide grant rate of around 37% appears unreasonably low but perhaps still within the outer bounds of “plausibility,” most of those grants are “concentrated” in a relatively small number of Immigration Courts, basically in the Northeast and in California. A disturbing number of IJs and courts are allowed, perhaps even encouraged, by Garland and his denial-oriented, Trump-holdover BIA to establish “asylum free zones.” In other words, Garland has looked the other way while some of “his courts” have basically become de facto “asylum death squads.”
Back to Ms. Sanchez-Amador. Under the circumstances shown by Ms. Sanchez-Amador, a “reasonable woman” would not expect any effective protection from the Honduran Government. The respondent has shown that her “expectation of no protection” was “fulfilled” in this case.
The respondent credibly testified that a gang member said she had a week to either pay him money or become “his woman,” join the gang, and have involuntary sex with him, that is, he threatened to rape her. When she dutifully reported this to the police (despite their well-deserved reputation for indifference to attacks on women), she was told that they would investigate but that it would take two weeks, and offered her no other protection or options in the interim.
In other words, in response to an imminent, credible threat of harm, the police told the respondent that they would do nothing to stop the harm that would be inflicted upon her in a week. By the time the police “investigated,” assuming they ever did which seems doubtful in light of conditions in Honduras, the respondent would be either extorted or raped and forced to join a gang against her will. While police in Honduras might have a well-deserved reputation for corruption and ineffectiveness, gangs, on the other hand, have a reputation for being ready, willing, and able to carry out their threats against women, usually with impunity.
Elementary asylum law tells us that it is neither reasonable nor required that a refugee wait to actually be persecuted before fleeing to safety. That’s exactly what a “well-founded fear” is!
Yet a panel of male, right-wing judges of the Fifth Circuit nonsensically and disingenuously concludes that “one would be hard-pressed to find that the authorities were unable or unwilling to help her [because] she never gave them the opportunity to do so.” Poppycock!
The police failed to offer the respondent any semblance of effective protection. Given the conditions in Honduras, and the credible threats the respondent had received, a reasonable woman in the respondent’s position would flee to safety at the first opportunity rather than waiting for the gang to carry out its credible threat of harm and for the police to, perhaps, but likely not, investigate after the fact!
Indeed, it’s no stretch to say that under the facts of this case, NO reasonable woman would have remained in Honduras if able to escape. Moreover, NO reasonable factfinder would conclude that she lacked a reasonable possibility of persecution there!
The panel judges have perverted, perhaps intentionally, the criteria for asylum, the standard for review, and misconstrued the record to deny legal protection to this refugee woman. But, there is an even deeper problem here. And, it goes to Attorney General Garland and his mismanagement of the entire, broken Immigration Court system.
I daresay that NO asylum expert would have handled this potentially perfectly grantable case the way this Immigration Judge and the BIA did. This whole process documents an ongoing, biased, unprofessional, designed-to-deny asylum system that unfairly attacks and threatens “the most vulnerable among us” — targeting women of color in a particularly racist-misogynistic way!
I hope that this particular example of injustice, inhumanity, and unprofessionalism at all levels of the judiciary isn’t what awaits long suffering asylum seekers if and when the Administration finally lifts the illegal “Title 42 Blockade/Charade” on May 23. But, I have little reason for optimism.
Beyond long overdue reversals of several Sessions/Barr bogus anti-asylum, anti-immigrant “precedents,” neither Garland or Mayorkas has shown much inclination to actually get asylum law right. Nor have they empowered or employed the human rights and due process experts who could lead them out of the wilderness in which their entire “denial and deterrence-oriented” system now wanders.
Perhaps ironically, the all-too-often lawless Fifth Circuit refuses to acknowledge even those modest actions by Garland to correct the law, notwithstanding the supposed “great deference” they claim to show the Executive in the area of immigration. Like much that the Fifth Circuit does these days, that “deference” appears reserved for White men and is not applied to vindicate the rights of “persons” who happen to be migrants, women, or people of color.
“Dred Scottification” of “the other” is NOT a legitimate legal theory. No, it’s part of the “anti-democracy activism” that threatens to destroy our legal system and take our nation down with it! ☠️
He had been in office only two months and there was already a crisis at the southwest border. Thousands of migrant children were jammed into unsanitary Border Patrol stations. Republicans were accusing Mr. Biden of flinging open the borders. And his aides were blaming one another.
Facing his bickering staff in the Oval Office that day in late March 2021, Mr. Biden grew so angry at their attempts to duck responsibility that he erupted.
Who do I need to fire, he demanded, to fix this?
Mr. Biden came into office promising to dismantle what he described as the inhumane immigration policies of President Donald J. Trump. But the episode, recounted by several people who attended or were briefed on the meeting, helps explain why that effort remains incomplete: For much of Mr. Biden’s presidency so far, the White House has been divided by furious debates over how — and whether — to proceed in the face of a surge of migrants crossing the southwest border.
. . . .
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Read the complete article at the link.
Not rocket 🚀 science:
Note to Susan Rice & Ron Klain: There will be no racial justice in America without immigrant justice.
Asylum is the law, NOT a “policy option” or a “strategy.”
The Attorney General has an obligation to insist that the law be followed or to resign.
How on earth could anyone think that the border can be fixed without addressing the extreme dysfunction and Trump White Nationalist bias in the Immigration Courts?
How do you run on a promise to restore asylum at the border without having a plan in hand to do that on Inauguration Day?
Ports of entry “reopened” remarkably quickly for White asylum seekers from Ukraine, using cooperation among the DHS, Mexico, and volunteer groups. So, it’s very “doable.” What’s lacking here appears to be the will and the motivation to treat asylum seekers of color fairly and humanely.
Is the Civil Rights Division of the DOJ on permanent LOA? What does Kristen Clarke, AAG for Civil Rights, do to earn her paycheck? Whatever happened to Associate AG Vanita Gupta, a former civil rights and racial justice maven, who has turned her back on America’s most glaring and serious racial justice problems, at the border and in her Department’s dysfunctional “courts,” and disappeared into the bowls of Garland’s bureaucracy, never to be heard from again?
So, following the law and treating persons of color fairly and humanely at our borders will create “chaos” (it should do nothing of the sort, with competent leadership and personnel) and might be “bad politics” for “moderate Dems.” Gimmie a break!
Why not just consider all asylum applicants to be “constructively White persons” and proceed accordingly?
Why is appeasing GOP White Nationalist nativists, who wouldn’t support Biden no matter what he does at the border, more important to the Administration than keeping promises to supporters who actually worked to put Biden, Harris, and, derivatively, folks like Rice, Klain, Mayorkas, and Garland in office?
Repubs do remember who their key supporters are, and act accordingly, even when those actions are illegal, immoral, counterproductive, and often unpopular. Dems, by contrast, are afraid to follow the law and do the right thing to make good on promises to their supporters!
America actually needs more legal immigrants. Many of them are waiting at the border for justice long delayed. Perhaps, an Administration who can’t see that and turn it into a “win-win” doesn’t deserve to be in office.
