Trump Administration – Page 23 – immigrationcourtside.com

⚖️ NDPA STALWART MICHAEL MEHR BEATS DOWN MATTER OF CORDERO-GARCIA (Obstruction of Justice) IN 9TH — Dissenting Trump Judge VanDyke Goes Ballistic — Accuses Colleagues Of “Playing Dirty” By Occasionally Ruling In Favor Of Individuals In Immigration Cases!

Here’s a report from Nate Raymond @ Reuters:

https://www.reuters.com/legal/government/trump-appointed-judge-says-9th-circuit-playing-dirty-prevent-deportations-2022-08-15/

(Reuters) – A conservative judge appointed by former President Donald Trump on Monday accused his colleagues on the 9th U.S. Circuit Court of Appeals of playing “dirty” in a “trainwreck” of rulings to prevent immigrants from being deported.

U.S. Circuit Judge Lawrence VanDyke’s criticism came in a dissent to a 2-1 decision holding a Mexican native’s California conviction for dissuading a witness from reporting a crime was not a deportable offense under federal immigration law.

VanDyke, who has become known for a string of dissents since joining the liberal-leaning court in 2020, noted he had not been shy in criticizing the San Francisco-based court’s “abysmal and indefensible immigration precedents.”

He said the 9th Circuit for more than a decade has been “doing everything in our power (and much not) to upset” the Board of Immigration Appeals’ “reasonable” interpretation of what constitutes an offense related to obstruction of justice.

The BIA in this case had concluded Fernando Cordero-Garcia committed such an offense after he was convicted in California of sexual battery without restraint, sexual exploitation by a psychotherapist and dissuading a witness from reporting a crime.

“My colleagues in the majority should be embarrassed,” VanDyke wrote. “Perhaps not for their wrong decision today–to err is human, after all, even for those in robes. But they should be troubled by our court’s jaw-dropping, always-increasing, epic collection of immigration gaffes.”Cordero-Garcia’s lawyer, Michael Mehr, declined to comment.

Cordero-Garcia, who entered the country in 1965 as a lawful permanent resident, was a psychologist for the County of Santa Barbara Alcohol, Drug and Mental Health Services department who prosecutors said sexually assaulted patients, the ruling said.

Two appointees of Democratic presidents — U.S. District Judge Barry Moskowitz, a visiting judge on the court, and U.S. Circuit Judge Andrew Hurwitz — ruled for Cordero-Garcia in overturning the BIA’s decision on the obstruction offense.

Moskowitz, writing for the majority, said he was not writing on a “clean slate,” as the 9th Circuit in 2020 ruled an “obstruction of justice” offense must be connected to ongoing or pending criminal proceedings.

The California law Cordero-Garcia was convicted under, by contrast, does not require any connection to an ongoing or pending proceeding or investigation, making it “not an appropriate comparator” to obstruction under federal law.

VanDyke, though, said the 9th Circuit’s approach had created a “lopsided circuit-split,” with the majority acknowledging its ruling ran counter to decisions by the 1st and 4th U.S. Circuit Courts of Appeals.

The case is Cordero-Garcia v. Garland, 9th U.S. Circuit Court of Appeals, No. 19-72779.

For Cordero-Garcia: Michael Mehr of Mehr & Soto

For the United States: Rebecca Hoffberg Phillips of the U.S. Department of Justice

Read more:

Trump-appointed judge blasts 9th Circuit’s ’embarrassing’ immigration rulings

In barbed dissents, Trump appointees call

**************************

Here’s a link to Matter of Garcia-Cordero, 27 I&N Dec. 652 (BIA 2019) which was reversed by the 9th Circuit:

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwip-puUns75AhUlk4kEHaQXAisQFnoECAMQAw&url=https%3A%2F%2Fwww.justice.gov%2Feoir%2Fpage%2Ffile%2F1210991%2Fdownload&usg=AOvVaw2IVnTOUmhzqK0ppatf4rr7

While VanDyke has been eager to rip into his colleagues for critically reviewing BIA rulings, rather than just “rubber stamp deferring,” he is no stranger to controversy. He received the coveted “not qualified to serve” rating from the ABA and has been characterized as an “unqualified hack” by Joe Patrice over at abovethelaw.com. https://abovethelaw.com/2021/12/ninth-circuit-judge-has-had-it-with-trump-judges-insulting-dissents/.

Interestingly, a chunk of the dissent is dedicated to showing that Mr. Cordero-Garcia is a louse. However, that doesn’t seem to have much to do with the legal application of the “categorical test” to his crime in the immigration context. For all its difficulties, Congress was well aware that courts had historically applied the “categorical test” as opposed to the “sounds like a bad guy” approach when they enacted the statutory language in question.

Curiously, VanDyke castigates his majority colleagues for “result oriented” decision making. But it seems highly unlikely that either District Judge Barry Ted Moskowitz, who wrote the opinion, or Circuit Judge Andrew Hurwitz would have chosen Mr. Cordero-Garcia’s situation as one to “throw out a lifeline.”

What’s more likely is that they fairly applied controlling Circuit precedent notwithstanding the highly unsympathetic individual involved. By contrast, critics have characterized VanDyke as an ideologue — driven by a far-right agenda — whose main focus on the bench has been “writing vitriolic Town Hall editorials to publish in F.4th.” Id.

From a due process standpoint, one of the most severe problems undermining our entire justice system today is the disturbingly poor performance of the BIA which often functions as a “rubber stamp” on incorrect anti-immigrant decisions by Immigration Judges, many of them appointed during the Trump Administration with questionable credentials, at best. That’s when the BIA isn’t busy serving as a “shill” for DHS Enforcement — often bending the law or going out of their way to sustain ICE appeals from correct decisions below that grant relief or benefit individuals. BIA precedents favorable to asylum seekers and other migrants are few and far between — despite an obvious lack of immigration and human rights expertise among many Trump appointees to the immigration bench.

The problem is compounded when reviewing Circuit Courts ignore the glaring Constitutional conflict of having a “court” that is “owned” by an enforcement agency (and was blatantly “weaponized” against migrants by Sessions and Barr) and the poor quality decision making, lack of scholarship, and overt bias that plagues EOIR. “Rubber stamp deference” to BIA decisions that do not deserve it is a systemic problem for the Article IIIs, actively encouraged by the Supremes judge-created Chevron and Brand X doctrines of undue deference. From this perspective, VanDyke and many (not all) of his Trump colleagues are a big part of the problem — not the solution!

Michael K. Mehr ESQ!
Senior Partner
Mehr & Soto LLP
Santa Cruz, CA
PHOTO: Website

Many congrats to Michael Mehr for vigorously and successfully litigating this complex issue in the 9th Circuit. It’s telling to compare the “quiet competence” of dedicated, expert advocates like Mehr with the “bombastic grandstanding” of VanDyke and others in the xenophobic right. Mehr and others in the NDPA have honed their their advocacy and scholarship skills by decades of giving a “voice” to those who otherwise are seldom “heard” by the powers that be.

Undoubtedly, given the circuit split, this eventually will end up at the Supremes. There, VanDyke’s fellow Trump appointees could well agree with him. But, that might be more reflective of problems with the composition of today’s Supremes than with the law. Stay tuned!

🇺🇸Due Process Forever!

PWS

08-17-22

🔌👎🏽GARLAND MUST “PULL THE PLUG” ON HIS FAILED APPELLATE COURT — BIA “DEFIES” EVIDENCE TO MOCK DUE PROCESS & DENY ASYLUM, SAYS 3RD CIR! — OGEE v. AG (Ghana)

Kangaroos — What kind of “judges” would “defy” the evidence of record to wrongfully deny asylum?
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Read the 3rd Circuit’s (unfortunately) unpublished decision here:

https://www2.ca3.uscourts.gov/opinarch/202423np.pdf

Key quote:

The IJ credited Bimpong’s testimony, and the BIA did not disturb this finding. Yet the BIA concluded that Bimpong’s persecution was a personal land dispute that lacked any nexus to his membership in the Ashanti tribe. In doing so, the BIA deferred to the IJ’s conclusion that “the record is devoid of any evidence indicating that the [Enzema] Tribe targeted the applicant because of membership in the Ashanti Tribe.” AR 97 (emphasis added). That conclusion defies the record, which is replete with evidence that Bimpong’s tribal affiliation was a central reason for his persecution. See, e.g., AR 157, 162-63, 167–68, 185, 596, 598. For example, Bimpong testified that members of

the Enzema “did not want the land that [he] possessed to be owned by non-members of 4

the Enzema tribe,” AR 596, and that he “was a target of persecution because of [an] intertribal dispute between the Enzema tribe and Ashanti tribe.” AR 598.

****************

Typical BIA BS prejudged, form denial “boilerplate.” “Devoid of evidence” — gimmie a break! We tried (obviously unsuccessfully) to eliminate this type of non-analytical nonsense several decades ago. It’s indicative of a totally broken system that is unfair and biased against migrants! Why is Garland allowing this continuing systemic injustice?

Demand that Garland replace his inept, unprofessional, unconstitutional, “Trump holdover” BIA with real judges who are experts in immigration, asylum, human rights, and fully committed to due process and fundamental fairness!

To quote my good friend and Round Table 🛡 colleague, Hon. “Sir Jeffrey” Chase:

At the IJ level, the ACIJs have to be charged with determining if the IJ actually doesn’t know the law, or if they are choosing not to follow it. Of course, you need ACIJs who actually know immigration law, which isn’t always the case anymore. If it’s the former, you schedule additional training; if it’s the latter, they may need to suspend or remove the IJ. That should be a priority for the next Chief IJ.

But why isn’t this being caught at the BIA level? They continue to act as a rubber stamp. There have been a few cases just in the past couple of weeks where the errors were really major and apparent.

A BIA that would “rubber stamp” denials without question or meaningful analysis so that OIL could then argue “deference” to railroad refugees and other individuals entitled to relief out of the country is precisely what Barr and Sessions intended to create. In other words, a “parody of justice” that would carry out the White Nationalist restrictionist agenda without giving it any thought. And, it’s no coincidence that this unconstitutional agenda falls hardest on the backs of asylum seekers and other migrants of color. It also serves to reinforce the vile concept that individuals of color in the U.S. are not equal under the law.

The real question here is why Garland hasn’t effectively changed the system by bringing in real judges who are experts in immigration and human rights and who would be fair to all coming before his Immigration Courts regardless of race or status? “Gradual change” is unacceptable when individuals (and their conscientious representatives) are being subjected to deadly quasi-judicial incompetence on a daily basis. Tell Garland you’ve had enough!

EOIR Clown Show Must Go T-Shirt — “EOIR Clown Show Must Go” T-Shirt Custom Design Concept

🇺🇸 Due Process Forever!

PWS

08-16-22

🐥COWARDLY MAGA GOP CLAIMS TO SUPPORT LAW ENFORCEMENT — UNTIL THEY ACTUALLY ENFORCE THE LAW! — JRUBE @ WASHPOST

Jennifer Rubin
Opinion Writer
Washington Post

Jennifer Rubin writes at WashPost:

https://www.washingtonpost.com/opinions/2022/08/14/distinguished-persons-fbi-agents-are-patriots-unlike-maga-republicans/

As MAGA thugs are wont to do, their reaction to the lawful search at former president Donald Trump’s Mar-a-Lago home, which we now know might have been related to nuclear secrets (which Trump has denied), amounted to an stream of insults and threats designed to whip up unhinged, violent characters.

While the exact motives of the person who attacked FBI offices in Cincinnati on Thursday remain unknown, reports indicate he was in D.C. in the days leading up the Jan. 6 insurrection and might have been at the U.S. Capitol that day. The GOP’s cycle of incitement and violence continues.

FBI Director Christopher A. Wray was properly outraged. “Unfounded attacks on the integrity of the FBI erode respect for the rule of law and are a grave disservice to the men and women who sacrifice so much to protect others,” he said in a written statement on Thursday. “Violence and threats against law enforcement, including the FBI, are dangerous and should be deeply concerning to all Americans. Every day I see the men and women of the FBI doing their jobs professionally and with rigor, objectivity, and a fierce commitment to our mission of protecting the American people and upholding the Constitution. I am proud to serve alongside them.”

. . . .

**********************
Read the full op-Ed at the link.

Here’s one of the ways the MAGA GOP insurrectionists show “support” for laws and law enforcement:

Jan 6 MAGA Rioters — DC Capitol Storming IMG 7951.jpg
Crowd of Trump supporters marching on the US Capitol on 6 January 2021, ultimately leading the building being breached and several deaths. PHOTO: Creative Commons License.

🇺🇸 Due Process Forever!

PWS

08-15-22

📖COURTSIDE HISTORY: BEYOND THE CHINESE EXCLUSION ACT, RACISM IS AT THE CORE OF U.S. IMMIGRATION POLICY — Professor Andrew S. Rosenberg Interviewed On New Book By Isabela Dias @ Mother Jones!

Isabela Dias
Staff Writer, Immigration & Social Issues
Mother Jones
PHOTO: Twitter

https://apple.news/AOMcfZiMFQ0OSgozcppDcjg

“Undesirable Immigrants: Why Racism Persists in International Migration”

. . . .

In the book, you dispute the assumption that the right to border control and to exclude foreigners is an inherent feature of sovereign states. Instead, you frame it as a “modern consequence of racism.” Why do you see it that way?

The nation-state is a relatively modern invention on the scale of human history. Today, we have this conventional wisdom floating around that it is the natural right and duty of nation-states as sovereign entities to be able to restrict foreigners and have these really hard borders—and that it’s that ability that makes a state what it is. Actually, if you go back in time and look at the international legal thought that emerged from the 15th through the 19th centuries on what it actually means to be a state, the commonly held assumption that people like the late Justice [Antonin] Scalia and others talk about, is actually an invention of the 19th century. In the 16th and 17th centuries, the great thinkers of international legal jurisprudence or of state theory either thought that states had a right or an obligation to be hospitable to foreigners and to allow them free passage into their territory or, at most, it was up for raucous debate. It was only in the 19th century, when immigrant-receiving countries like the United States began receiving a large influx of racially different outsiders like the Chinese, that this presumption that sovereign states have a right and an obligation that can be tied back to their status as sovereign states to restrict outsiders emerged.

People like Texas Governor Greg Abbott seem to invoke that supposed inherent right when they describe migrants at the border as an “invasion.”

Precisely. These types of “declarations of war” are one of the clearest examples of this ideology seeping into public debate, which leads everyday people to create this idea that migrants are undesirable outsiders who are not fit for, or are undeserving of reaping the benefits of living in the United States or participating in our society.

****************

Read the complete interview at the link.

The myth of the “undesirable immigrant” — at the heart of the anti-immigrant rabble rousing of Trump, Miller, Bannon, DeSantis, Abbott, Cotton, Hawley, etc. — has deep roots in American racial history.

I’ve said it many times: There will be neither racial justice nor equal justice for all without justice for immigrants (regardless of status). Laws like the Refugee Act of 1980, that very explicitly make arrival status irrelevant to access to a fair legal process, have been intentionally misinterpreted and misapplied by right-wing judges from the Supremes all the way down to the Immigration Courts.

Advocates for civil rights, womens’ rights, LGBTQ+ rights, voting rights, disability rights, and other fundamental rights that have been unlawfully restricted or diminished, usually, but certainly not exclusively, by the right, who continue to ignore the primacy of dealing with the intentional unfair, racially biased treatment of migrants do so at their own peril!

🇺🇸 Due Process Forever!

PWS

08-12-22

⚖️🗽 US JUDGE IN SAN DIEGO EVISCERATES TRUMP’S ILLEGAL AND IMMORAL “TURNBACKS” OF ASYLUM APPLICANTS; MAYORKAS TERMINATES REMAIN IN MEXICO (AGAIN) EVEN AS RED RESTRICTIONIST AGs FILE MORE FRIVOLOUS OBJECTIONS! 🤮

https://drive.google.com/file/d/12R1mt07Z4S7R7xiieRUznueR9DRXrBdq/view?usp=sharing

Al Otro Lado v. Mayorkas

U.S. District Judge Cynthia Bashant minces no words in blasting both the unlawful, cruel, and unconstitutional policy and the Supreme’s toxic decision to look the other way as immigration enforcement runs roughshod over legal, constitutional, and human rights.

In its September 2, 2021 decision, this Court held the right to access the U.S. asylum

process conferred vis a vis § 1158(a)(1) applies extraterritorially to noncitizens who are

arriving at Class A POEs along the U.S.-Mexico border, but who are not yet within the

jurisdiction of the United States, and is of a constitutional dimension. (Op. Granting in

Part and Denying in Part Parties’ Cross-Mots. for Summ. J. (“MSJ Opinion”), ECF No.

742.) It further held that Defendants’ systematic turnbacks of asylum seekers arriving at

Class A POEs (the “Turnback Policy”) amounted to an unlawful withholding by

immigration officials of their mandatory ministerial “inspection and referral duties”

detailed in 8 U.S.C. § 1225 (“§ 1225”), in violation of the Administrative Procedures Act,

5 U.S.C. § 706(1) et seq., and the Fifth Amendment Due Process Clause. (MSJ Opinion at

33–34, 37–38); see 8 U.S.C. §§ 1225(a)(3) (mapping out immigration officials’ duty to

inspect asylum seekers), 1225(b)(1)(A)(ii) (mapping out immigration officials’ duty to

refer asylum seekers to the U.S-asylum process).

In casting appropriate equitable relief to rectify the irreparable injury Defendants’

unauthorized and constitutionally violative Turnback Policy has inflicted upon members

of the Plaintiff class,2 this Court ordinarily would be guided by the fundamental principle

that an equitable remedy should be commensurate with the violations it is designed to

vindicate. See Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 465 (1979) (“[It is an]

accepted rule that the remedy imposed by a court of equity should be commensurate with

the violation ascertained.”). Equitable relief should leave no stone unturned: it should

correct entirely the violations it is aimed at vindicating. That cornerstone of Article III

courts’ equitable powers generally is unfaltering, whether the party against whom an

injunction is sought is a private entity, a state actor, or, as here, a federal official. Thus, in

2 Plaintiffs consist of the named Plaintiffs listed in the case caption, along with a certified class

consisting of “all noncitizens who seek or will seek to access the U.S. asylum process by presenting

themselves at a Class A [POE] on the U.S.-Mexico border, and were or will be denied access to the U.S.

asylum process by or at the instruction of [Customs and Border Protection] officials on or after January 1,

2016.” (Class Certification Order at 18, ECF No. 513.) The Court also certified a subclass consisting of

“all noncitizens who were or will be denied access to the U.S. asylum process at a Class A POE on the

U.S.-Mexico border as a result of Defendants’ metering policy on or after January 1, 2016.” (Id.)

– 3 – 17cv2366

the ordinary course of things, this Court would not hesitate to issue broad, programmatic

relief enjoining Defendants from now, or in the future, turning back asylum seekers in the

process of arriving at Class A POEs, absent a valid statutory basis for doing so.

Yet the circumstances with which this Court is presented are not ordinary because

of the extraordinary, intervening decision of the United States Supreme Court in Garland

v. Aleman Gonzalez, 142 S. Ct. 2057 (2022). That decision takes a sledgehammer to the

premise that immigration enforcement agencies are bound to implement their mandatory

ministerial duties prescribed by Congress, including their obligation to inspect and refer

arriving noncitizens for asylum, and that, when immigration enforcement agencies deviate

from those duties, lower courts have authority to issue equitable relief to enjoin the

resulting violations. It does so through unprecedented expansion of a provision of the

Illegal Immigration Reform and Immigrant Responsibility Act of 1989 (“IIRIRA”), 8

U.S.C. § 1252(f)(1) et seq. (“§ 1252(f)(1)”), which for years the Ninth Circuit has

interpreted as placing a relatively narrow limit on injunctive relief. In essence, Aleman

Gonzalez holds that § 1252(f)(1) prohibits lower courts from issuing class-wide injunctions

that “require officials to take actions that (in the Government’s view) are not required” by

certain removal statutes, including § 1225, or “to refrain from actions that (again in the

Government’s view) are allowed” by those same provisions. Id., 142 S. Ct. at 2065.

Federal courts (except for the Supreme Court) now may only issue injunctions enjoining

federal officials’ unauthorized implementation of the removal statutes in the individual

cases of noncitizens against whom removal proceedings have been initiated. See id.

In no uncertain terms, the logical extension of Aleman Gonzalez appears to bestow

immigration enforcement agencies carte blanche to implement immigration enforcement

policies that clearly are unauthorized by the statutes under which they operate because the

Government need only claim authority to implement to immunize itself from the federal

judiciary’s oversight.

With acknowledgment that its decision will further contribute to the human suffering

of asylum seekers enduring squalid and dangerous conditions in Mexican border

– 4 – 17cv2366

communities as they await entry to POEs, this Court finds the shadow of Aleman Gonzalez

inescapable in this case. Even the most narrow, meaningful equitable relief would have

the effect of interfering with the “operation” of § 1225, as that term is construed by the

Aleman Gonzalez Court, and, thus, would clash with § 1252(f)(1)’s remedy bar. Aleman

Gonzalez not only renders uneconomical vindication of Plaintiff class members’

statutorily- and constitutionally-protected right to apply for asylum, those inefficiencies

inevitably will lead to innumerable instances in which Plaintiff class members will be

unable to vindicate their rights at all. Thus, while the majority and dissent in Aleman

Gonzalez hash out their textual disagreements concerning § 1252(f)(1)’s scope in terms of

remedies, make no mistake, Aleman Gonzalez leaves largely unrestrained immigration

enforcement agencies to rapaciously scale back rights. See Tracy A. Thomas, Ubi Jus, Ibi

Remedium: The Fundamental Right to a Remedy Under Due Process, 41 San Diego L.

Rev. 1633, 1634 (2004) (“Disputes over remedies provide a convenient way for dissenters

to resist conformance to legal guarantees. Courts can declare rights, but then default in the

remedy to avoid a politically unpopular result.” (footnote omitted)).

Although it is no substitute for a permanent injunction, class-wide declaratory relief

is both available and warranted here. In lieu of even a circumscribed injunction enjoining

Defendants from again implementing a policy under which they turn back asylum seekers

presenting themselves at POEs along the U.S.-Mexico border, the Court enters a

declaration in accordance with its MSJ Opinion that turning back asylum seekers

constitutes both an unlawful withholding of Defendants’ mandatory ministerial inspection

and referral duties under § 1158 and § 1225 in violation of both the APA and the Fifth

Amendment Due Process Clause. The Court also issues relief as necessary to named

Plaintiff Beatrice Doe.

. . . .

You can read Judge Bashant’s full opinion at the link.

Meanwhile, Secretary Mayorkas exercised the authority recognized by the Supremes in Biden v. Texas to terminate the reprehensible and illegal “Remain in Mexico” (a/k/a “Let ‘Em Die in Mexico”) program engineered by Trump and Miller. Predictably, the same scofflaw, restrictionist “Red AG’s” who had instituted frivolous litigation to block this long overdue action filed more specious objections with the Trump-appointed US District Judge, as advocacy groups like Justice Action Center (“JAC”) pledged to fight the racist right until this vile (and highly ineffective) program is finally ended.

JAC Responds to Official Termination of Remain in Mexico, Attempts by Texas to Delay Wind-Down

FOR IMMEDIATE RELEASE

August 9, 2022

WASHINGTON, D.C. — In a victory for immigrants’ rights movement, the Remain in Mexico program has been officially terminated after court proceedings following the Supreme Court’s ruling in Biden v. Texas on June 30. Below is a statement from Justice Action Center founder and director Karen Tumlin:

“The official end to shameful Remain in Mexico program is a victory for the immigrants’ rights movement and the right to asylum. RMX is a stain on the country’s history, having harmed tens of thousands of people fleeing for their lives since the Trump Administration instituted the unlawful and immoral program in 2019.

“Since the Supreme Court’s ruling affirming the authority of the Biden Administration to end the RMX program, the #SafeNotStranded campaign has called on the President and DHS to implement a swift and humane wind-down, including halting all new enrollments and allowing everyone in RMX to safely pursue their asylum claims in the U.S. Yesterday, DHS stated its wind-down has begun and new people will not be enrolled in the program, and that it would disenroll individuals with upcoming RMX hearings. These are important first steps to finally redress just some of the immense harm inflicted by the program.

“This commitment by DHS, following such a significant SCOTUS victory, illustrates the strength and resilience of the immigrants’ rights movement. But even after a clear loss, Texas is continuing its hateful attempts to keep this deadly program in place for as long as possible: After the District Court rightfully vacated its injunction of the RMX wind-down yesterday, Texas unfortunately—yet unsurprisingly—filed an amended complaint challenging the second DHS memo rescinding RMX, as well as a motion asking the District Court to stay the memo’s effective date.

“But we will not be deterred: advocates will continue to fight back against ongoing red state efforts to continue Trump’s racist and xenophobic agenda and work towards a world where all people fleeing danger can be safe, not stranded.”

# # #

Contact: Tasha Moro; 323-450-7269; tasha.moro@justiceactioncenter.org

Justice Action Center (JAC) is a new nonprofit organization dedicated to fighting for greater justice for immigrant communities by combining litigation and storytelling. JAC is committed to bringing additional litigation resources to address unmet needs, empower clients, and change the corrosive narrative around immigrants in the U.S. Learn more at justiceactioncenter.org and follow us on Twitter, Instagram, and Facebook.

Related:

8/1/22: JAC Responds to Supreme Court’s Certification of Decision on Remain in Mexico; Encourages Swift and Humane Wind-Down of Deadly Program

6/30/22: Justice Action Center Welcomes Positive Supreme Court Decision on Remain in Mexico in Biden v. Texas

3/21/22: #SafeNotStranded Campaign Launches Ahead of April Supreme Court Arguments in Biden v. Texas

*******************************

We should remember that the Trumpest GOP’s insurrectionist war on American democracy and attack on truth and human decency began with overt lies and racist attacks on migrants of color and non-Christians. It has escalated to become an all out assault on our future as a nation of laws and values.

We can’t go back to a time when liberals and progressives viewed immigration as a tangental or secondary issue. It is THE all-encompassing issue now in preserving American democracy from GOP efforts to destabilize and destroy our nation’s fabric from bottom to top!

🇺🇸Due Process Forever!

PWS

08-11-22

THE GIBSON REPORT — 08-08-22 — Compiled By Elizabeth Gibson, Managing Attorney, NIJC — Among Headliners: “The [Trump Administration’s child separation] policy’s worst outcomes were all anticipated, and repeated internal and external warnings were ignored,” Reports Caitlin Dickerson in The Atlantic!

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.

CONTENTS (jump to section)

◦NEWS

◦LITIGATION & AGENCY UPDATES

◦RESOURCES

◦EVENTS

PRACTICE UPDATES

Chief Immigration Judge Email: Taking Cases Off Calendar: Cases may be selected to be taken off the court’s calendar for the following reason(s)…

EOIR Schedule: EOIR immigration judges are scheduled for a mandatory training session on Aug. 22, 2022, from 1pm to 5pm EST. The Chicago Immigration Court will re-set all non-detained cases scheduled for that afternoon; detained cases will go forward. It is unclear at this time if/how this affects other courts.

NEWS

Thune breaks through Democratic bloc on ‘vote-a-rama’ amendments

Roll Call: Senate Democrats stuck together and mostly voted against amendments to their tax, climate and health care package, while using a procedural maneuver to allow their vulnerable incumbents to vote for some that could score political points without actually making any changes to the bill [including on immigration].

The secret history of the U.S. government’s family-separation policy

The Atlantic: Over the past year and a half, [the Atlantic] has conducted more than 150 interviews and reviewed thousands of pages of internal government documents, some of which were turned over only after a multiyear lawsuit… The policy’s worst outcomes were all anticipated, and repeated internal and external warnings were ignored.

Talk of ‘invasion’ moves from the fringe to the mainstream of GOP immigration message

NPR: In Republican primary races this year, few issues have come up more in TV ads than immigration. And one word in particular stands out: invasion.

New York City works to make space for rapidly rising number of asylum-seekers

NPR: On Monday, New York Mayor Eric Adams announced a round of emergency contracts with local agencies and organizations to allow the city to respond to an increasing number of asylum-seekers entering the city’s homeless shelter system. See also Pentagon denies DC request for National Guard migrant help.

Border Patrol Agents Are Trashing Sikh Asylum-Seekers’ Turbans

Intercept: “The turban is sacred.” At least 64 Sikh men have had their headwear confiscated and discarded by Yuma’s Border Patrol.

Immigrant Rights Advocates Push Cook County To Find Out If ICE Is Using Data Brokers To Skirt Sanctuary City Ordinances

Block Club: Cook County Commissioner Alma Anaya and several immigrant rights organizations held a public hearing last week in which the county’s Legislation and Intergovernmental Relations Committee heard testimony from experts about how U.S. Immigration and Customs Enforcement uses data from companies like LexisNexis.

The Officer of the Future: Facial Recognition and the Border-Industrial Complex

Border Chron: Facial recognition has become the primary biometric technology for CBP. Everyone who enters the country has their picture taken, though supposedly people can opt out (that often isn’t obvious, thanks to a lack of signage; I cross the border constantly and have never seen anything about opting out). The surveillance technology has also been deployed at 32 airports for people exiting the country. CBP partners with airports and airlines to add another layer to this private-public nexus.

Fact Check: Immigrants are not getting Social Security numbers at the U.S. border

AP: Lara Logan, a former Fox Nation host, recently claimed that U.S. Border Patrol agents are distributing Social Security numbers to immigrants at the border. A video of her comments has circulated widely across social media platforms… No such thing is happening, Rhonda Lawson, a spokesperson for the U.S. Customs and Border Protection, told the AP in an email.

NYC Attorney Carlos Moreno Imprisoned For Immigration Fraud

NYCaribNews: Between September 2017 – when Moreno was suspended from the bar – and late September 2018, Moreno took on new clients, practiced law, and gave legal advice to scores of undocumented immigrants. In some instances, even predating his suspension, Moreno defrauded clients by falsely claiming that undocumented immigrants who have resided in the United States for over a decade could secure legal status, a fraud known as the “10-Year Green Card Scam.”

DHS Watchdog Reports Understaffing At Afghan ‘Safe Havens’

Law360: The U.S. Department of Homeland Security’s internal watchdog reported worker shortages at the military sites that provided a temporary refuge to Afghan evacuees, saying the understaffing left officials concerned they couldn’t properly meet Afghan nationals’ needs.

LITIGATION & AGENCY UPDATES

Supreme Court certifies ruling ending Trump border policy

AP: The two-word docket entry read “judgment issued” to record that justices voted 5-4 in a ruling issued June 30 that the administration could scrap the “Remain in Mexico” policy, overruling a lower court that forced the policy to be reinstated in December.

Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022)

BIA: A respondent who has made a timely objection to a noncompliant notice to appear is not generally required to show he or she was prejudiced by missing time or place information. An Immigration Judge may allow the Department Homeland Security to remedy a noncompliant notice to appear without ordering the termination of removal proceedings [Note: Except in CA7, pursuant to Arreola-Ochoa].

3rd Circ. Upholds Deportation Of Surgeon In $3M Tax Scheme

Law360: A Swedish plastic surgeon who served prison time for a $3 million tax evasion scheme should not be allowed back into the U.S., the Third Circuit ruled Thursday.

4th Circ. Says Death Threat Is Persecution In Asylum Case

Law360: The Fourth Circuit gave a Salvadoran woman and her son a second chance at their asylum application, holding that an immigration judge didn’t give enough weight to her claim of death threats on the basis of religion.

CA9 On Cancellation, Pre-Trial Detention: Troncoso-Oviedo V. Garland

LexisNexis: Pretrial detention not credited toward a sentence is not “confinement, as a result of conviction” under § 1101(f)(7).

9th Circ. Won’t Stop Man’s Removal Based On 1997 Conviction

Law360: The Ninth Circuit rejected a Mexico native’s bid to reopen his removal proceedings on grounds that his 1997 conviction was modified, saying none of the circumstances allowing the challenge of a removal applied to him.

Immigration Enforcement Can’t Block Grants, 9th Circ. Rules

Law360: The Ninth Circuit ruled that federal funds for criminal justice programs can’t be withheld from states and counties that don’t enforce immigration laws, upholding lower court decisions that found the denial an overreach of the U.S. Department of Justice’s authority.

11th Circ. OKs Deportation Of Chilean Convicted Of ‘Whatever’

Law360: The Eleventh Circuit affirmed Tuesday a deportation order against a Chilean green card holder who pled guilty to violating a Florida law criminalizing child neglect, while acknowledging that the trial court’s record of the conviction was “hopelessly opaque” and included the state judge specifying the criminal offense was for “whatever.”

Travel Ban Waiver Lawsuit Victory: Emami V. Mayorkas

LexisNexis: Drawing all inferences and viewing all evidence in the light most favorable to the government, the Court finds that plaintiffs have met their burden of showing that there is no genuine dispute as to any material fact, and that the waiver implementation guidance was arbitrary and capricious in violation of the APA.

NY Judge Declines Relief For DACA Hopefuls In ‘Limbo’

Law360: A New York federal judge refused to modify an order resuming acceptance of new Deferred Action for Childhood Arrivals applications, saying clarification sought following a Texas judge’s barring new approvals was actually a request for additional relief.

Russian Denied Resident Status Over Cannabis-Related Work

Law360: A California federal judge has affirmed a U.S. Citizenship and Immigration Services decision to deny a Russian national permanent resident status, ruling that by installing and maintaining a security camera system for a cannabis grower, the person had participated in the trafficking of a Schedule I drug.

Pa. Judge Says USCIS Must Redo Spousal Petition After Delay

Law360: A Pennsylvania judge ordered U.S. Citizenship and Immigration Services to reconsider a man’s petition for his Turkish wife’s green card, saying the agency’s unreasonable delay in denying the petition unfairly hampered the couple’s ability to address the agency’s concerns.

Biden Ordered To Revisit Visa Apps Nixed In Trump Travel Ban

Law360: A California federal judge ordered the Biden administration to revisit the tens of thousands of visa applications that were denied under Trump-era travel restrictions, finding that targeted foreigners were still bruised from the travel ban, long after its revocation.

USCIS Issuing Updated I-797C for Certain Operation Allies Welcome Parolees

USCIS: Certain EADs with a validity period of less than 2 years are now being automatically extended to align with the parole period shown on the beneficiary’s Form I-94, Arrival/Departure Record.

USCIS Issues Policy Guidance on Uncharacterized Military Discharges Eligible for Naturalization

AILA: USCIS issued policy guidance in the USCIS Policy Manual to address the eligibility of military service members with uncharacterized military discharges for purposes for naturalization under section 328 or section 329 of the INA. Comments are due by 9/2/22.

EOIR Announces 19 New Immigration Judges

EOIR: [EOIR] announced the appointment of 19 immigration judges to courts in California, Florida, Georgia, Illinois, Maryland, New Jersey, Tennessee, Texas, and Virginia.

EOIR Warns of Scammers Spoofing Agency Phone Number

EOIR: The Executive Office for Immigration Review (EOIR) today announced it has recently been notified of phone calls that spoof the Arlington Immigration Court as part of a misinformation campaign. The callers will often “spoof,” or fake, the immigration court’s main line, 703-305-1300, so the calls appear to be coming from EOIR on the recipient’s caller ID.

RESOURCES

AILA: USCIS Lockbox Updates (Updated 8/3/22)

AILA: Find Resources for Assisting Afghan Clients (Updated 8/2/22)

CLINIC: All About Parole Practice Advisory

CLINIC: Age-Out Rules for Afghan SIV Derivative Children

USCIS: Afghan Operation Allies Welcome (OAW) Parolee Asylum-Related Frequently Asked Questions

EVENTS

8/10/22 Preparing Criminal Waivers of Inadmissibility

8/10/22-8/11/22 2022 AILA Paralegals Virtual Conference

8/12/22 TPS Beneficiaries and Authorized Travel Following the Rescission of Matter of Z-R-Z-C-

8/16/22 Comprehensive Overview of Immigration Law (COIL)

8/16/22 The Child Status Protection Act: Strategies for Keeping the Family Intact

8/17/22 ASISTA Inadmissibility Webinar Series: Crimes Involving Moral Turpitude (CIMT): Impact on Immigrant Survivors

8/23/22 Preparing Solid Affidavits of Support: “Show Me the Money!”

8/23/22 Comprehensive Overview of Immigration Law (COIL)

8/24/22 Seeking Prosecutorial Discretion Post Texas v. United States

8/30/22 Naturalization During the Pandemic: “It Was the Best of Times, It Was the Worst of Times”

8/31/22 What to Do When You Get a Decision from the Ninth Circuit

8/31/22 Building Your Pro Bono Program

9/1/22 For Immigration Practitioners: Understanding Referrals & Resources for Low-Income Clients

9/8/22-9/29/22 Webinar Series: Dealing With Denials

9/8/22 Post-Conviction Relief: “If I Could Turn Back Time!”

9/8/22 Trial Advocacy Skills – Working with Expert Witnesses in Asylum, Withholding of Removal, and Convention Against Torture Claims

9/13/22 PLI: Representing Children in Immigration Matters 2022: Effective Advocacy and Best Practices

9/14/22 Representing U Visa Clients with Complex Issue

9/14/22 Partial to Full Accreditation Initiative 2022

9/15/22 Advanced Mandamus Trends

9/20/22 Nonprofit and For-Profit Entity Intersection 2022: Achieving Charitable Goals Through Innovative and Nontraditional Mechanisms

9/21/22 Breaking Down the Record in a Ninth Circuit Petition for Review

9/22/22 Maximizing Second Chances: Filing Appeals, Motions, and Practicing before the BIA

9/29/22 Consular Processing Roundup for Families and Survivors

10/07/22-10/28/22 Understanding and Preparing Waivers

10/29/22 4th Annual NIJC 5k for Immigrant Justice

To sign up for additional NIJC newsletters, visit: https://immigrantjustice.org/subscribe.

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.

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

www.immigrantjustice.org | Facebook | Twitter

***************

Interestingly, none of the “perps” of child abuse by the Trump Administration has been held accountable. By contrast, many of their victims have suffered irreparable harm.

Trump officials provided “explicitly false formation” to intentionally mislead the public about the abusive, racist intent behind their program of intentional misconduct. So, why isn’t this a problem?

🇺🇸 Due Process Forever!

PWS

08-10-22

🏴‍☠️☠️DANA MILBANK @ WASHPOST: THE JIM CROW GOP WAS AN EXISTENTIAL THREAT TO AMERICAN DEMOCRACY LONG BEFORE TRUMP — Today’s Absurdist & Corrupt GOP Reaction TO DOJ’s Long Overdue Investigation Of Trump’s Treason & Criminality Is The Predictable Result Of Many Years Of Corrupt, Racist, Authoritarianism!

\https://www.washingtonpost.com/opinions/2022/08/04/dana-milbank-republican-destructionists-book-excerpt/

. . . .

Much has been made of the ensuing polarization in our politics, and it’s true that moderates are a vanishing breed. But the problem isn’t primarily polarization. The problem is that one of our two major political parties has ceased good-faith participation in the democratic process. Of course, there are instances of violence, disinformation, racism and corruption among Democrats and the political left, but the scale isn’t at all comparable. Only one party fomented a bloody insurrection and even after that voted in large numbers (139 House Republicans, a two-thirds majority) to overturn the will of the voters in the 2020 election. Only one party promotes a web of conspiracy theories in place of facts. Only one party is trying to restrict voting and discredit elections. Only one party is stoking fear of minorities and immigrants.

Admittedly, I’m partisan — not for Democrats but for democrats. Republicans have become an authoritarian faction fighting democracy — and there’s a perfectly logical reason for this: Democracy is working against Republicans. In the eight presidential contests since 1988, the GOP candidate has won a majority of the popular vote only once, in 2004. As the United States approaches majority-minority status (the White population, 76 percent of the country in 1990, is now 58 percent and will drop below 50 percent around 2045), Republicans have become the voice of White people, particularly those without college degrees, who fear the loss of their way of life in a multicultural America. White grievance and White fear drive Republican identity more than any other factor — and in turn drive the tribalism and dysfunction in the U.S. political system.

Other factors sped the party’s turn toward nihilism: Concurrent with the rise of Gingrich was the ascent of conservative talk radio, followed by the triumph of Fox News, followed by the advent of social media. Combined, they created a media environment that allows Republican politicians and their voters to seal themselves in an echo chamber of “alternative facts.” Globally, south-to-north migration has ignited nationalist movements around the world and created a new era of autocrats. The disappearance of the Greatest Generation, tempered by war, brought to power a new generation of culture warriors.

Dana Milbank: In the GOP, the paranoid fringe is becoming the establishment

But the biggest cause is race. The parties re-sorted themselves after the epochal changes of the 1960s, which expanded civil rights, voting rights and immigration. Richard Nixon’s “Southern Strategy” began an appeal to White voters alienated by racial progress, and, in the years that followed, a new generation of Republicans took that racist undertone and made it the melody.

It is crucial to understand that Donald Trump didn’t create this noxious environment. He isn’t some hideous, orange Venus emerging from the half-shell. Rather, he is a brilliant opportunist; he saw the direction the Republican Party was taking and the appetites it was stoking. The onetime pro-choice advocate of universal health care reinvented himself to give Republicans what they wanted. Because Trump is merely a reflection of the sickness in the GOP, the problem won’t go away when he does.

. . . .

******************

Read the full excerpt from “The Destructionists: The Twenty-Five Year Crack-Up of the Republican Party” by Dana Milbank at the link.

As I noted in yesterday’s post, racially charged lies, myths, knowingly false narratives, and bogus attempts to tie migrants to all the ills of society are a key part of the GOP’s toxic narrative! The continuing campaign of hate and misinformation began with immigrants — but as this article suggests, it won’t end until either the GOP is thrown out of office at all levels or our nation’s constitutional structure and democratic republic are in tatters!

🇺🇸Due Process Forever!

PWS

08-09-22

🇺🇸🗽⚖️NDPA ACTIVISTS HELP BEAT BACK GOP NATIVIST SPOILER AMENDMENTS TO RECONCILIATION BILL — Dems Need To Win Midterms To Thwart Newest GOP Immigration Hate Plan!

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

“Sir Jeffrey” Chase reports:

Hi: I just heard that all of the anti-immigration measures that Republicans attempted to add as amendments to the reconciliation bill were defeated.

I’m so in awe of the advocates who were up all night monitoring the process and weighing in with Senators’ offices.

Best, Jeff

*******************

James “Jim” Crow
Symbol of American Racism, Now At The Heart of The GOP Immigration Agenda

But, don’t relax or breathe a sign of relief. The GOP is very up front about the Jim Crow hate agenda they plan to roll out if they gain control of Congress in the midterms. Here is is in all it’s dishonesty, cruelty, and racist agitation:

https://republicans-homeland.house.gov/media/2022/07/Border-Rollout-one-pager_FINAL_formatted.pdf

Yes, you can expect Biden to veto any of this. But, it still will disrupt the business of Congress and will lead to hate rhetoric, lies, and racist stereotypes being hurled against immigrants and people of color. There is virtually no chance that the GOP would have the votes to override the vetoes in both Houses.

Still, upcoming generations of younger Americans will have to decide whether they want to live and raise their children in the the “American Hungary” — a neo-Nazi state where racial and ethic hatred and anti-Semitism will be at the center of all authoritarian Government policy. If not, the younger generation of the NDPA needs to come up with ways of keeping the GOP out of political power from the top to the bottom.

However welcome, the latest hard-fought victory over racist nativism and xenophobia was just the beginning of the struggle for the heart and soul of America.

🇺🇸Due Process Forever!

PWS

08-08-22

☠️⚰️🏴‍☠️ TITLE 42 CAUSES DEATH @ THE BORDER: Rachel Monroe @ The New Yorker Sums Up The Jim Crow Cruelty, Stupidity, & Futility Of Title 42 In One Paragraph! — Title 42 “has increased business for smuggling cartels and spurred people to cross in more dangerous places.”

https://apple.news/AX5E8qIWlQYOauANHEV2g3w

. . . .

Between 2015 and 2020, about fifty bodies were recovered each year in Brooks County, according to an S.T.H.R.C. report. Then came Title 42, a policy enacted by the Trump Administration at the start of the COVID-19 pandemic that closed ports of entry and blocked most avenues for asylum claims, ostensibly for public-health reasons. The policy, which is still in place in a modified form, has increased business for smuggling cartels and spurred people to cross in more dangerous places. “Before Title 42, the calls we got used to be, like, eighty-per-cent apprehended, twenty-per-cent missing,” Canales said. “Now it’s flipped—it’s more like twenty-per-cent apprehended, eighty-per-cent missing.” So far this year, there have been nearly seventy recoveries of remains in Brooks County, putting 2022 on track to be the deadliest year on record.

. . . .

*****************

Read Rachel’s entire report, directly from the border, at the link.

So, before the Trump Administration’s bogus, racist “invocation” of Title 42, 80% of migrants came to the border or were easily apprehended close thereto — most probably because they turned themselves in to seek asylum through the legal system. And, lets not forget, this was with an already badly broken, fundamentally unfair, asylum legal adjudication system intentionally biased and “loaded” against legitimate refugees seeking protection!

Smart, honest public policy would have improved asylum adjudication at USCIS and at EOIR to quickly recognize and grant, with the assistance of NGOs and legal assistance groups, the many cases of legitimate refugees so that they could take their rightful, legal places in our society.

Additionally, by taking refugees seeking legal determinations “out of the equation,” enforcement against those seeking to evade legal processing — certainly a much, much smaller “universe” than is “out there now” — would have been enhanced. Business would have declined for smugglers, as those seeking protection would have been motivated to use a humane, fair, functioning legal system rather than being forced into “do it yourself” refuge!

You don’t have a genius to figure this out — just not be motivated solely by racism like Stephen Miller and his Trump regime cronies! Better qualified — non-Jim Crow righty — Federal Judges would also produce more humane, honest, and rational results.

Additionally, by running a legitimate asylum system, and complementing it with an honest, robust, legal refugee system for Latin America, the Caribbean, and Africa, we would finally have sound data on how many of those seeking to enter at the Southern Border are entitled to immigrate as legal refugees and how many are non-refugees. That’s something on which we now have no reliable information — just myths and anecdotes, many provided by racist restrictionists and nativists with neither expertise in asylum law nor any real interest in the rule of law at the border.

As a result of Title 42, and the unqualified “Jim Crow” Federal Judges, GOP nativist AGs, and their apologists (including some in the media who repeat or republish, without critical examination, GOP racist lies about the border), we now have a deadlier than ever border; the legal immigration system at the border has been functionally abolished and replaced with an underground, extralegal system; the U.S. Government has ceded control of border migration policy to cartels and smugglers; and the job of the Border Patrol — forced to spend time apprehending legal refugees who seek only the protection to which they are legally entitled — has become impossible.

That’s what happens when we let GOP nativist pols, overt racists, and bad, right wing Federal Judges take over the immigration policies that were actually enacted by Congress — a key part of which are legitimate refugee and asylum systems and a fair, functioning, expert Immigration Court. Right now, we have NONE of the foregoing. And, innocent migrants at the border are too often paying the price — with their lives!

Border Death — This is a monument for those who have died attempting to cross the US-Mexican border. Each coffin represents a year and the number of dead. It is a protest against the effects of Operation Guardian. Taken at the Tijuana-San Diego border.
Tomas Castelazo
To comply with the use and licensing terms of this image, the following text must must be included with the image when published in any medium, failure to do so constitutes a violation of the licensing terms and copyright infringement: © Tomas Castelazo, www.tomascastelazo.com / Wikimedia Commons / CC BY-SA 3.0

“Enforcing the law” does NOT mean unfairly, unwisely, and illegally abrogating the legal asylum system and fair adjudications in Immigration Court at the border. It means fixing the legal asylum system including USCIS Asylum Offices. Perhaps most of all, it means reforming and replacing where necessary the broken, dysfunctional, leaderless, and non-expert Immigration Courts and a BIA that continues to misinterpret asylum and protection laws on a daily basis. We need a BIA of real judges with the expertise and guts to establish fair, humane, correct, positive precedents and to rein in or remove from asylum cases those Immigration Judges who are “programmed to reject, not protect!”

I, along with many others, watched the Brittney Griner travesty unfold. I saw the irony. President Biden was rightfully blasting the outrageous “kangaroo court” show trial that passes for justice in Russia. But, at the same time, he, Harris, and Garland are basically running a farcical “Russian style” dysfunctional immigrant “justice” system at EOIR and calling it a “court!”

🇺🇸 Due Process Forever

PWS

08-05-22

⚖️ THE GIBSON REPORT — 08-01-22 — Compiled By Elizabeth Gibson, Esquire, Managing Attorney — NIJC — Unpublished 2d Cir. Indigenous Woman Asylum Remand Is A “Dive” Into Why EOIR Is A Dangerous & Unacceptable Drag On Our Justice System! ☠️

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.  

CONTENTS (jump to section)

NEWS

LITIGATION & AGENCY UPDATES

RESOURCES

EVENTS

PRACTICE UPDATES

USCIS Extends COVID-19-related Flexibilities

USCIS: This extends certain COVID-19-related flexibilities through Oct. 23, 2022, to assist applicants, petitioners, and requestors. The reproduced signature flexibility announced in March, 2020, will become permanent policy on July 25, 2022. But DHS To End COVID-19 Temporary Policy for Expired List B Identity Documents.

OPLA Updates Its Prosecutorial Discretion Website

Parolees Can Now File Form I-765 Online

NEWS

DHS Fails to File Paperwork Leading to Large Numbers of Dismissals

TRAC: One out of every six new cases DHS initiates in Immigration Court are now being dismissed because CBP officials are not filing the actual “Notice to Appear” (NTA) with the Court. The latest case-by-case Court records obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University through a series of Freedom of Information (FOIA) requests show a dramatic increase in these cases.

Fewer Immigrants Face Deportation Based on Criminal-Related Charges in Immigration Court

TRAC: Over the past decade, the number of criminal-related charges listed on Notices to Appear as the basis for deportation has declined dramatically. In 2010, across all Notices to Appear (NTAs) received by the immigration courts that year, ICE listed a total of 57,199 criminal-related grounds for deportation. See also ICE Currently Holds 22,886 Immigrants in Detention, Alternatives to Detention Growth Increases to nearly 300,000.

It Will Now Be Harder For Unaccompanied Immigrant Children To Languish In Government Custody

Buzzfeed: The US reached a settlement Thursday that establishes fingerprinting deadlines for parents and sponsors trying to get unaccompanied immigrant children out of government custody. Under the settlement, which expires in two years, the government has seven days to schedule fingerprinting appointments and 10 days to finish processing them.

ICE is developing new ID card for migrants amid growing arrivals at the border

CNN: The Biden administration is developing a new identification card for migrants to serve as a one-stop shop to access immigration files and, eventually, be accepted by the Transportation Security Administration for travel, according to two Homeland Security officials.

Republican states’ lawsuits derail Biden’s major immigration policy changes

CBS: Officials in Arizona, Missouri, Texas and other GOP-controlled states have convinced federal judges, all but one of whom was appointed by former President Donald Trump, to block or set aside seven major immigration policies enacted or supported by Mr. Biden over the past year.

Climate migration growing but not fully recognized by world

AP: Over the next 30 years, 143 million people are likely to be uprooted by rising seas, drought, searing temperatures and other climate catastrophes, according to the U.N.’s Intergovernmental Panel on Climate Change report published this year.

Washington mayor requests troops to aid with migrant arrivals from Texas and Arizona

Reuters: Washington Mayor Muriel Bowser has requested the deployment of military troops to assist with migrants arriving on buses sent by the Texas and Arizona state governments, according to letters sent by her office to U.S. military and White House officials. See also Migrants Being Sent to NYC From Texas — to the Wrong Places, With No Help, Sources Say.

Immigrant Arrest Targets Left to Officers With Biden Memo Nixed

Bloomberg: Former enforcement officials think most officers will take a measured approach, but some concede the absence of a central policy will cause problems. See also ICE Has Resumed Deporting Unsuspecting Immigrants at Routine Check-Ins.

ICE Suddenly Transfers Dozens of Immigrants Detained in Orange County

Documented: Advocates estimate that ICE moved dozens of individuals at the Orange County Jail in New York on Monday, and sent them to detention centers in Mississippi and elsewhere in New York, without prior notification to families or attorneys about the transfers.

Mexico deports 126 Venezuelan migrants

Reuters: An estimated 6 million Venezuelans have fled economic collapse and insecurity in their home country in recent years, according to United Nations figures. Many have settled in other South American countries but some have traveled north.

LITIGATION & AGENCY UPDATES

Matter of Ortega-Quezada, 28 I&N Dec. 598 (BIA 2022)

BIA: The respondent’s conviction for unlawfully selling or otherwise disposing of a firearm or ammunition in violation of 18 U.S.C. § 922(d) (2018) does not render him removable as charged under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2018), because § 922(d) is categorically overbroad and indivisible relative to the definition of a firearms offense.

CA2 Panel Says BIA Had No Basis Denying Guatemalans’ Asylum

Law360: The Second Circuit ordered the Board of Immigration Appeals to revisit an indigenous Guatemalan mother and son’s bids for asylum and deportation relief, saying the agency failed to provide a sufficient premise for affirming an immigration judge’s denial of relief.

CA9, En Banc: First Amendment Trumps INA Sec. 274(a)(1)(A)(vi): U.S. v. Hansen (Alien Smuggling)

LexisNexis: An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the non-recused active judges in favor of en banc consideration.

9th Circ. Says Ignorance Of Law Doesn’t Toll Asylum Deadline

Law360: Not knowing the law isn’t enough to excuse a Guatemalan union worker from missing the deadline to apply for asylum by three years, the Ninth Circuit said when it refused to overturn an immigration panel’s decision that the man’s circumstances weren’t “extraordinary.”

9th Circ. Hands Mexican Woman’s Asylum Bid Back To BIA

Law360: A panel of Ninth Circuit judges granted a petition to review an order rejecting a Mexican woman’s asylum bid Wednesday, saying in an unpublished opinion that the agency was wrong to determine that inconsistencies or omissions in her testimony undercut her credibility as a witness.

DC Circ. Won’t Impose Deadline For Afghan, Iraqi Visas

Law360: The D.C. Circuit has rejected requests from Afghan and Iraqi translators to alter a lower court’s order that granted the federal government an indefinite deadline extension to draft a plan for faster green card processing, ruling that reversing the order wasn’t necessary.

Advance Copy: DHS Notice of Extension and Redesignation of Syria for TPS

AILA: Advance Copy: DHS notice extending the designation of Syria for TPS for 18 months, from 10/1/22 through 3/31/24, and redesignating Syria for TPS for 18 months, effective 10/1/22 through 3/31/24. The notice will be published in the Federal Register on 8/1/22.

USCIS Provides Information on Form I-589 Intake and Processing Delays

AILA: USCIS is experiencing delays in issuing receipts for Form I-589. For purposes of the asylum one-year filing deadline, affirmative asylum interview scheduling priorities, and EAD eligibility, the filing date will still be the date USCIS received the I-589 and not the date it was processed.

Information on Form I-589 Intake and Processing Delays

USCIS: USCIS is currently experiencing delays in issuing receipts for Form I-589, Application for Asylum and for Withholding of Removal. Due to these delays, you may not receive a receipt notice in a timely manner after you properly file your Form I-589.

RESOURCES

AIC: Welcoming and Inclusive State Policies: A Midyear Review of State Legislative Sessions in 2022

AILA: Take Action: Ask the Senate to Support Humane Alternatives to Detention

AILA: Overcoming Secondary Trauma in Immigration Practice

CAIR: National Survey on Pre-Hearing Conferences Memo

CLINIC: Practice Advisory: Adjustment Options for TPS Beneficiaries

DHS OIG: DHS Did Not Adequately or Efficiently Deploy Its Employees to U.S. Military Installations in Support of Operation Allies Welcome

End SIJS Backlog Coalition: Frequently Asked Questions About USCIC’s SIJS Deferred Action Policy

IAN: Remote Legal Support Guide 2022

MPI: The Missing Link: Connecting Eligible Asylees and Asylum Seekers with Benefits and Services

EVENTS

8/2/22 Navigating the Post-Roe Landscape: The Impact of the Dobbs Decision

8/4/22Refugee and Asylee Family Reunification

8/5/22Afghans and Humanitarian Parole: We Have to Do Better

8/5/22-8/12/22NITA-NIPNLG “Advocacy in Immigration Matters” Training

8/10/22Preparing Criminal Waivers of Inadmissibility

8/10/22-8/11/222022 AILA Paralegals Virtual Conference

8/12/22TPS Beneficiaries and Authorized Travel Following the Rescission of Matter of Z-R-Z-C-

8/16/22Comprehensive Overview of Immigration Law (COIL)

8/16/22The Child Status Protection Act: Strategies for Keeping the Family Intact

8/17/22ASISTA Inadmissibility Webinar Series: Crimes Involving Moral Turpitude (CIMT): Impact on Immigrant Survivors

8/23/22Preparing Solid Affidavits of Support: “Show Me the Money!”

8/23/22Comprehensive Overview of Immigration Law (COIL)

8/24/22Seeking Prosecutorial Discretion Post Texas v. United States

8/30/22Naturalization During the Pandemic: “It Was the Best of Times, It Was the Worst of Times”

8/31/22What to Do When You Get a Decision from the Ninth Circuit

9/8/22-9/29/22Webinar Series: Dealing With Denials

9/8/22Post-Conviction Relief: “If I Could Turn Back Time!”

9/8/22Trial Advocacy Skills – Working with Expert Witnesses in Asylum, Withholding of Removal, and Convention Against Torture Claims

9/13/22PLI: Representing Children in Immigration Matters 2022: Effective Advocacy and Best Practices

9/14/22Partial to Full Accreditation Initiative 2022

9/15/22Advanced Mandamus Trends

9/20/22Nonprofit and For-Profit Entity Intersection 2022: Achieving Charitable Goals Through Innovative and Nontraditional Mechanisms

9/21/22Breaking Down the Record in a Ninth Circuit Petition for Review

9/22/22Maximizing Second Chances: Filing Appeals, Motions, and Practicing before the BIA

9/29/22Consular Processing Roundup for Families and Survivors

10/29/224th Annual NIJC 5k for Immigrant Justice

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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

www.immigrantjustice.org | Facebook | Twitter

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RE: Elizabeth’s “Item #2” under “Litigation” — EOIR, & Garland’s Inexplicable Failure To Fix It, Is What’s Wrong With American Justice!

More than five years ago, an indigenous woman from Guatemala and her disabled son filed “slam dunk” asylum claims. Undoubtedly, “indigenous women in Guatemala” are a “particular social group” — being immutable, particularized, and clearly socially visible within Guatemalan society and beyond. See, e.g., https://www.govinfo.gov/content/pkg/USCOURTS-ca6-18-03500/pdf/USCOURTS-ca6-18-03500-0.pdf; https://indianlaw.org/swsn/violations-indigenous-women’s-rights-brazil-guatemala-and-united-states.

The foregoing sources also clearly illustrate that, with or without past persecution, such indigenous women would have a “reasonable fear” of persecution on account of their status under the generous standards for asylum adjudication articulated by the Supremes more than three decades ago in Cardoza-Fonseca and, shortly thereafter, reaffirmed and supposedly implemented by the BIA in Matter of Mogharrabi (a fear can be “objectively reasonable” even if persecution is significant unlikely to occur). Problem is: Both of these binding precedents favoring many, many more asylum grants are widely ignored by policy makers, USCIS, EOIR, and some Article III Courts — with no meaningful consequences!

Additionally, the respondents appear to have had grantable “racial persecution” claims based on indigenous ethnicity. The son, in addition to being a “derivative” on his mother’s application, also had an apparently grantable case based on disability.

In a functioning system, this case would have been quickly granted, the respondents would be integrating into and contributing to our nation with green cards, and they would be well on their way to U.S. citizenship. Indeed, there would be instructive BIA precedents that would prevent DHS from re-litigating what are essentially frivolous oppositions!

But, instead, after more than five years and proceedings at three levels of our justice system, the case remains unresolved. Because of egregious, unforced EOIR errors it is still “bouncing around” the 1.8+ million EOIR backlog, following this remand from the Second Circuit.

Exceptionally poor BIA legal performance, enabling and supporting a debilitating “anti-immigrant/anti-asylum/racially derogatory culture of denial” at EOIR, has led to far, far too many improper asylum denials at the Immigration Judge level and to a dysfunctional system that just keeps on building backlog and producing grotesquely inconsistent, “Refugee Roulette” results! Go to TRAC Immigration and check out the shocking number of sitting IJs with absurd 90% or more “asylum denial rates.”

It also fuels the continuing GOP nativist blather that denies the truth about what is happening at our Southern Border. We are wrongfully denying legal protection and status to many, many qualified refugees — often without any process at all (let alone due process) and with a deeply flawed, biased, and fatally defective process for those who are able to “get into the system.” (Itself, an arbitrary and capricious decision made by lower level enforcement agents rather than experts in asylum adjudication).

The “unpublished” nature of this particular Second Circuit decision might lead one to conclude that the Article IIIs have lost interest in solving the problem, preferring to sweep it under the carpet as this pathetic attempt at a “below the radar screen” unpublished remand does. But, such timid “head in the sand” actions will not restore fairness and order to a system that now conspicuously lacks both! This dangerous, defective, unfair, and unprofessional abuse of our justice system needs to be “publicly called out!”

You can read the full Second Circuit unpublished remand here. https://www.ca2.uscourts.gov/decisions/isysquery/2a5d8920-2ab9-4544-9be6-882ac830fdeb/11/doc/20-212_so.pdf

And, lest you believe this is an “aberration,” here’s yet another “unpublished” example of the BIA’s shoddy and unprofessional work on life or death cases, forwarded to me by “Sir Jeffrey” Chase yesterday! https://www.ca2.uscourts.gov/decisions/isysquery/94e3eaee-b8da-446a-908a-a2f3b5b13ee7/1/doc/20-1319_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/94e3eaee-b8da-446a-908a-a2f3b5b13ee7/1/hilite/

“The agency failed to evaluate any of the country conditions evidence relevant to Oliva-Oliva’s CAT claim.” So how is this acceptable professional performance by the BIA? And why is it being “swept under the carpet” by the Second Circuit rather than “trumpeted” as part of a demand that Garland fix his dysfunctional due-process-denying system, NOW?

Contrary to all the fictional “open borders nonsense” being pushed by the nativist right, the key to restoring order at the borders is generous, timely, efficient, professional granting of refuge to those who qualify, either by the Asylum Office or the Refugee Program. This, in turn, absolutely requires supervision, guidance, and review where necessary by an “different” EOIR functioning as a true “expert tribunal.”

That would finally tell us who belongs in the legal protection system and who doesn’t while screening and providing accurate profiles of both groups. The latter essential data is totally lacking under the absurdist, racially motivated, “rejection not protection” program of Trump, much of which has been retained by Biden or forced upon him by unqualified righty Federal Judges. But, we’ll never get there without meaningful, progressive, due-process focused EOIR reform!

There will be no justice at the Southern Border or in America as a whole without radical, long overdue, due process reforms at EOIR!

🇺🇸 Due Process Forever!

PWS

08-03-22

🗽TELL CONGRESS TITLE 42 HAS GOT TO GO! — “A Sham Policy With Deadly Consequences” — Listen To Rev. Craig Mousin’s Podcast On “Lawful Assembly” ⚖️

Craig writes:

We just posted our latest podcast urging folks to email or call Congress to stop Title 42, “Do Not Let Summer Daze Turn Pretense Into Law: End Title 42.”

https://blogs.depaul.edu/dmm/2022/07/29/lawful-assembly-podcast-episode-28/

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Title 42 is a total, disgraceful fraud that violates U.S. and international law, abuses (and sometimes kills) vulnerable refugees seeking to exercise legal rights, and turns immigration policy over to cartels and human smugglers

Shockingly, instead of standing up for due process, human rights, and the rule of law, horrible right-wing Federal Judges have gone along with this farce at the urging of GOP White Nationalist state AGs.

Better judges for a better America!

🇺🇸 Due Process Forever!

PWS

07-30-22

⚖️👨🏻‍⚖️🎩 FREE JUDGE BURMAN! — Sudden, Mysterious Disappearance Of Revered U.S. Immigration Judge Lawrence O. “Larry” Burman From Arlington Bench Surprises, Saddens Local Bar!

Judge Lawrence O. Burman — Hon. Lawrence O. Burman
U.S. Immigration Judge
Arlington, VA
Pictured addressing conference at CIS
PHOTO: YouTube

By Paul Wickham Schmidt

Courtside Exclusive

July 30, 2022

Reliable sources tell Courtside that highly-respected U.S. Immigration Judge Lawrence O. “Larry” Burman has been suspended with pay from hearing cases at the Arlington Immigration Court. Reportedly, for the past three months, the distinguished veteran jurist has been “banned” from chambers and relegated to deciding motions from home electronically.

The genesis of the suspension allegedly is a complaint of sexual harassment in court filed by the ICE Office of Chief Counsel in Arlington. A source close to Burman says that he told them he has not received any detailed notice of exactly what he has been accused of, nor has he been given any timeline or details about the alleged investigation.

EOIR is notorious for placing judges and others accused of wrongdoing on “administrative leave with full pay” — sometimes for years spanning several Administrations. Meanwhile, they conduct glacially slow “investigations” and dither over what, if any, formal discipline to impose.

Within the bureaucracy, “never-ending investigations” are sometimes used as a device to “persuade” employees out of favor with “management” to retire or resign. In reality, Courtside is unaware of any full-time trained investigative staff assigned to EOIR.

Significantly, DOJ policies do not appear to require suspension of the employee from public duties in a case such as this. “Danger to the personnel” or “disruptive presence” are the primary considerations. See HR ORDER DOJ1200.

Those who know and have worked with Judge Burman would find it absurd to believe that either of these situations apply to him. Indeed, one source interviewed for this article suggested, perhaps tongue in cheek, that “a propensity toward giving respondents a fair hearing” might help explain ICE’s and EOIR’s enthusiasm for having Judge Burman “off the bench.”

Recently, Courtside described Judge Burman and one of his Arlington colleagues as the “gold standard” for fair, expert Immigration Judges. See https://wp.me/p8eeJm-7Ko. From that standpoint, the sudden suspension appears particularly unusual.

The action caught members of the private immigration bar in the DMV area by surprise. One attorney confirmed having merits cases recently scheduled before Judge Burman “orbited” several years out on the docket for no given reason except that Judge Burman was “out” and therefore unable to hear the cases. “Aimless Docket Reshuffling” and “churning” of cases is an endemic problem at EOIR, which is running an astounding, yet rapidly increasing, backlog of 1.8 million cases.

Other attorneys contacted by Courtside reacted with shock, sadness, and concern for Judge Burman’s well being. “I feel so bad to hear that. He is such a nice man and a good judge,” said one local practitioner.

Judge Burman has been an Immigration Judge for nearly a quarter-century, serving at the Los Angeles and Memphis Immigration Courts before arriving in Arlington. He has been a leader in court-related CLE, serving as a past chair of the FBA’s Immigration Section and the creator and editor emeritus of The Green Card, that section’s educational newsletter. He also has been an officer of the National Association of Immigration Judges (“NAIJ”), where (perhaps ironically) he successfully represented a number of colleagues charged with disciplinary infractions or wrongfully denied benefits.

Until “grounded” by the Trump DOJ, Judge Burman was one of a limited number of local judges eager and willing to participate in educational events sponsored by bar associations and other groups. A graduate of UVA and Maryland Law, and a U.S. Army veteran, Judge Burman had careers in the “Legacy INS” and private practice before being appointed to the bench by then Attorney General Janet Reno in 1998.

JULIA TOEPFER @ NIJC: “Guaranteed To Fail” Immigration Deterrence Policies Certain To Bring Death, Disorder, Human Suffering — Why Can’t We “Get Smarter” As A Nation?

Since the 1990s, U.S. immigration policy has centered the goal of decreasing or “deterring” migration. These policies are designed with one goal in mind – punishing people for the act of migration with such cruelty that the harsh measures themselves will deter future migration.

Not only does this strategy not work, but it has deadly human consequences.

The devastating toll of deterrence programs came into full view with the recent tragedy in San Antonio, Texas, where 53 migrants died in the back of a tractor-trailer after attempting to enter the United States. Human rights experts, including NIJC, responded by emphasizing the urgent need to shift away from programs that block lawful pathways to entry or push people toward dangerous terrain.

Quote from Lisa Koop, National Director of Legal Services, National Immigrant Justice Center:

Nonetheless, the U.S. government continues to double-down on policies and programs aimed at deterring migration. Some recent examples include continuing the Trump-era Remain in Mexico and Title 42 programs, and increasing the use of criminal prosecutions to punish migrants alleged to enter the country without authorization. Here are updates on each of these programs since we last reached out to you about them, along with ways you can demand that the U.S. government restores access to asylum and stops punishing people for migrating:

➡️ Recently, the Supreme Court ruled that the Biden administration could end the Remain in Mexico program, and it’s now time for the administration to follow through. Also known as the Migrant Protection Protocols (MPP), this program has forced more than 75,000 people to wait in dangerous conditions in Mexico while their claims are pending in U.S. immigration courts. This program defaced basic principles of due process and decades of U.S. commitment to protect people from harm and persecution. NIJC continues to represent dozens of asylum seekers who were subject to the program, including some who are still waiting in Mexico. Sign the petition calling on President Biden to end Remain in Mexico.

➡️ Border Patrol just released new data showing there have been 2,132,711 expulsions of people seeking safety at the U.S. border under Title 42, the vast majority of which happened under the Biden administration. The Trump administration implemented Title 42 under the guise of protecting public health during COVID-19, but the real goal was always to block Black, Brown, and Indigenous people from migrating to the United States. There have been nearly 10,000 documented cases of kidnappings, rape, torture, or other acts of violence against people who were expelled under Title 42. Yet, right now, some members of Congress are trying to pass legislation that continues this policy indefinitely. Tell your members of Congress to end Title 42 and oppose all efforts to continue it indefinitely.

Bar chart showing the number of expulsions at the border each month under the Trump and Biden administrations between March 2020 and June 2022. During the Trump administration the lines are red and during the Biden administration the lines are blue. The blue lines are longer and there are more of them, indicating many more people have been expelled under this policy during the Biden administration than the Trump administration.

➡️ The Biden administration is ramping up the use of criminal prosecutions to punish migrants arriving at the U.S. border, despite decades of evidence showing these prosecutions don’t work to deter migration and cause widespread harm. The increased use of such prosecutions flies in the face of the administration’s commitments to racial equity and to a more humane approach to migration policy. Criminal prosecutions do not stop people from crossing the border, but instead have caused widespread harm, separated countless families, and undermined asylum rights. Check out NIJC’s latest blog post explaining five ways that immigration prosecutions are deadly and ineffective.

NIJC knows, from years of representing immigrants and asylum seekers, that punitive border policies do not deter people from fleeing violence or seeking to reunite with their families.

Above all, immigration policies focused on deterrence inevitably and tragically cause countless deaths and untold human suffering. The U.S. must abandon a deterrence strategy, reopen ports of entry for asylum screenings, and embrace a humanitarian approach to immigration – it’s the only way to end systemic injustices, reduce mass incarceration, and protect fundamental human rights.

Thanks for joining us to get there.

-Julia Toepfer
National Immigrant Justice Center

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“Maximum deterrence programs” have little empirical support. Human migration, a phenomenon as old as humanity, is largely driven by powerful forces beyond whether a rich country has built walls, prisons, unfair legal systems, and other artificial barriers to “deter” migration. At best (or worst, depending on how one looks at it) these “gimmicks” and the predictable accompanying “rhetoric of hate, dehumanization, and rejection” nibble around the edges of migration patterns.

But, they are deeply rooted in the racial history of the U.S., and play a major role in the White Nationalist mythology that surrounds deterrence.

A smart nation might harness, take advantage of, and direct the flow of human migration. Ultimately, failed deterrence gimmicks will inflict cruelty and cause the death of some migrants. They also diminish the reputation and diminish the humanity of the “destination nation.”

But, they won’t stop folks from leaving intolerable situations to seek a better life elsewhere — no matter what the odds, risks, or hardships. And, they eat up money and resources that could actually be directed into building more realistic legal migration systems that would benefit both the migrants and the receiving countries.

🇺🇸 Due Process Forever!

PW@S
07-29-22

☠️🤮⚰️🏴‍☠️ MERCHANTS OF CHAOS & CORRUPTION: GOP HACKS, BAD RIGHTY JUDGES FORCE ILLEGAL CONTINUATION OF BOGUS TITLE 42 ABOMINATION! — Ending Title 42 Will Restore Order To The Border, Says Expert, Professor Stephen Yale-Loehr Of Cornell Law @ The Hill! — But, Wait, There’s Much More Needed, Say I!

Four Horsemen — GOP political hacks and their enabling bad righty Federal Judges have combined to wreak havoc on humanity and trample the Constitution, rule of law, common sense, and simple human decency at our Southern border!
Albrecht Dürer, Public domain, via Wikimedia Commons

Professor Stephen Yale-Loehr
Cornell Law

https://thehill.com/opinion/immigration/3575601-ending-title-42-wont-cause-immigration-mayhem-it-will-restore-order/

In 2015, a Ghanaian man who goes by the initials M.A. and his gay friend were brutally assaulted by a vigilante group in Accra, Ghana. In Ghana, homosexuality is illegal and carries a prison sentence of up to three years. M.A. was beaten with sticks before escaping through a window. His friend was killed. Fearing the group would find and kill him, he fled to Ecuador and made his way to the U.S. border, where he requested asylum. After being detained for nine months, he was released on bond and lived with a childhood friend in New York while he waited for his case to make it through the legal system.

M.A. clearly faced persecution, but an immigration judge denied his claim. I took M.A.’s appeal to the Board of Immigration Appeals in 2016 as part of the Cornell Law School’s asylum appeals clinic. It took M.A. four years to win asylum in America, but at least he was given the chance to apply in the first place.

Since March 2020, approximately 900,000 people — including over 215,000 parents and children — have been denied the ability to request asylum at all. They’re casualties of Title 42, a pandemic-related policy that paused nearly all asylum proceedings at the border. Some people argue the policy is preventing an influx of migrants. In fact, numbers are up despite the policy, and our refusal to process most of them has led to chaotic and dangerous conditions.

The United States has successfully managed ebbs and flows of asylum seekers for decades. There’s a system in place to manage an influx — and regardless of how hard immigration lawyers like me fight for them to stay, many will lose their case and be deported. Even so, we must let people try. It’s not only the right thing to do, it’s also guaranteed under international and domestic law. We signed a 1967 protocol to the U.N. Refugee Convention to protect the rights of refugees, and we have adopted it and codified it into U.S. asylum law. Right now, we’re violating those obligations. The longer we do, the weaker American rule of law looks to our global partners.

We must immediately reinstate due process for asylum seekers. And once this happens, we must work to make the system more equitable and faster.

. . . .

****************************

Read Steve’s complete op-ed in The Hill at the link.

I agree that “we must work to make the system more equitable and faster.” But, the answer can’t be just to hire more Immigration Judges in Garland’s dysfunctional, broken, and anti-asylum-biased “court” system. That would just speed the “deportation assembly line” and lead to even more injustice and grotesque inconsistencies.

According to TRAC, Immigration Judge “asylum denial rates” currently “range” from 5% to 100%. That’s a ridiculous, indefensible variation and a total perversion of the generous standard for granting asylum set forth by the Supremes in Cardoza-Fonseca and adopted by the BIA in Matter of Mogharrabi, but seldom enforced or followed, particularly these days. Why this very obvious, totally solvable problem is still festering going on two years into a Democratic Administration that pledged to solve it is beyond me!

Enough of this nonsense, biased, “amateur night at the Bijou” mal-administration of the Immigration Courts at EOIR by Garland’s DOJ! No wonder folks are still complaining about “Refugee Roulette” more than a decade after it was written by my Georgetown Law colleagues Professors Phil Schrag, Andy Schoenholtz, and Jaya Ramji-Nogales (now an Associate Dean at Temple Law). Why not put one of THEM, or for that matter, Professor Yale-Loehr, in charge of kicking tail and cleaning out the deadwood at EOIR?

At a minimum Garland must:

Remove the holdover “Asylum Deniers Club” from the BIA and replace them with a real judge as Chair and new Appellate Immigration Judges who are widely recognized as “practical experts” with careers that have demonstrated superior scholarship in immigraton and human rights, an unswerving commitment to due process for individuals, and a passion for racial justice in our legal system;
Have the “New BIA” issue useful precedential guidance on how to document and grant valid asylum cases at both the Asylum Office and the Immigration Court, implement best practices, and identify and remove from future asylum adjudication those unqualified Immigration Judges who basically “make up” reasons to deny and can’t or won’t treat applicants fairly; and
Immediately replace with qualified expert judges those Immigration Judges on the “Southern Border docket” who can’t fairly adjudicate asylum cases.

Steve is totally correct about the need for Title 42 to go! But, Garland’s EOIR, particularly the BIA, is just as broken, counterproductive, and out of control as Title 42! In many ways, the illegal abrogation of the rule of law at the Southern Border has somewhat ”hidden” the larger problem that a dysfunctional and incapable EOIR poses for those who do manage to get a hearing!

Without a legitimate, totally reformed and significantly “re-populated” EOIR operating at the “retail level” of our justice system, there will be no rule of law and equal justice under law in America — for anyone!

Tell Garland you have had enough! The deadly and disorderly “EOIR Clown Show” has got to go! Now!

🇺🇸 Due Process Forever!

PWS

07-28-22

MICA ROSENBERG @ REUTERS: “NEW Reuters project on the rising numbers of deaths along the U.S.-Mexico border” — Death Is Just “Collateral Damage” From Bad Border & Immigration Policies! — As The Desert Gets Hotter, Expect The Human Toll To Rise! ☠️⚰️

Hi there again,

I also wanted to share a multi media project we published yesterday about the rising number of deaths along the U.S.-Mexico border.

https://www.reuters.com/investigates/special-report/usa-immigration-border-deaths/

Through our reporting, we exclusively learned that U.S. Customs and Border Protection quietly changed last year how they count deaths on the border to only include deaths in custody, during arrests or when agents were nearby and there were 151 such “CBP-related” deaths in the 2021 fiscal year.

We are still reporting on this and other issues of course, so please keep in touch with tips and story ideas!

All the best,

Mica

………………………………………………….

Mica Rosenberg

Reuters News

National Immigration Reporter

www.reuters.com

****************************

Thanks, Mica. “Tune in” to the full “multimedia report” referenced by Mica at the above link to Reuters.

No amount of statistical hocus-pocus or nativist BS can hide the stain of these deadly, yet ultimately ineffective, border enforcement policies. It’s important that the names and actions of the politicos, bureaucrats, and bad judges who promote and encourage deadly violations of human rights, and their media apologists, be preserved and documented for history!

As we can see, there are, and will continue to be, concerted efforts to “cover up,” deny, and misrepresent the deadly effects of bad border policies! “Dehumanization of the other,” actively promoted by Trumpists and other White Nationalist GOP pols and their hand picked Federal Judges is a crucial first step!

🇺🇸Due Process Forever!

PWS

07-27-22

Here’s a report from Nate Raymond @ Reuters:

🇺🇸Due Process Forever!

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Key quote:

🇺🇸 Due Process Forever!

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Jennifer Rubin writes at WashPost:

🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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Al Otro Lado v. Mayorkas

🇺🇸Due Process Forever!

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🇺🇸 Due Process Forever!

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🇺🇸Due Process Forever!

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“Sir Jeffrey” Chase reports:

🇺🇸Due Process Forever!

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🇺🇸 Due Process Forever

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Craig writes:

🇺🇸 Due Process Forever!

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By Paul Wickham Schmidt

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🇺🇸 Due Process Forever!

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At a minimum Garland must:

🇺🇸 Due Process Forever!

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🇺🇸Due Process Forever!

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