Trump Administration – Page 38 – immigrationcourtside.com

🏴‍☠️MAYORKAS DOUBLES DOWN ON USE OF TRUMP’S BOGUS TITLE 42 RATIONALE TO DEPORT HAITIANS — ABSURDLY & DISINGENUOUSLY CLAIMS HAITI IS “SAFE” FOR RETURNS!

Amanda Holpuch reports for The Guardian:

https://www.theguardian.com/us-news/2021/sep/26/haiti-deportations-covid-biden-homeland-secretary-mayorkas?CMP=Share_iOSApp_Other

The US homeland security secretary, Alejandro Mayorkas, on Sunday defended the Biden administration’s decision to send thousands of Haitians to a home country they fled because of natural disasters and political turmoil.

White House criticizes border agents who rounded up migrants on horseback

Mayorkas told NBC’s Meet the Press the removals were justified because of the coronavirus pandemic, a point disputed by advocates and public health experts.

“The Centers for Disease Control [and Prevention, or CDC] has a Title 42 authority that we exercise to protect the migrants themselves, to protect the local communities, our personnel and the American public,” Mayorkas said.

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“The pandemic is not behind us. Title 42 is a public health policy, not an immigration policy.”

Since Donald Trump’s administration implemented Title 42 in March 2020, advocates and dozens of public health experts have called for its end.

Under Title 42, people who attempt to cross the border are returned to Mexico or deported to their home countries without an opportunity to test asylum claims.

In January, Joe Biden stopped the rule from applying to children. Despite that, at least 22 babies and children were deported to Haiti in February.

More than 30 public health experts wrote to Mayorkas and the head of the CDC, Rochelle Walensky, earlier this month, saying Title 42 was “scientifically baseless and politically motivated”.

This coalition has repeatedly said the policy violates the right to seek asylum and ignores how basic public health measures can reduce the spread of Covid-19.

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“Title 42 runs counter to the government’s own commitment to address Covid-19 globally,” the coalition said. “The absence of effective Covid-19 mitigation services at the border and the expulsion of people to situations in which they may be exposed to Covid-19 and unable to practice prevention are contrary to the US government commitment to address Covid-19 globally.”

On Sunday, Mayorkas told CNN about 4,000 Haitians who arrived in the past two weeks have been expelled, 13,000 others had been allowed to enter the US to pursue their immigration cases in court and 8,000 had voluntarily chosen to return to Mexico.

NBC’s Meet the Press host Chuck Todd questioned Mayorkas about why thousands were being sent to Haiti even though they had traveled to the US from South America.

“These are Haitian nationals,” Mayorkas said. “Some of them don’t have documents from the countries from which they just left. So they are subject to removal.”

. . . .

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Of course, Haiti clearly is not a safe place to return migrants:

‘They treated us like animals’: Haitians angry and in despair at being deported from US

https://www.theguardian.com/global-development/2021/sep/26/they-treated-us-like-animals-haitians-angry-and-in-despair-at-being-deported-from-us?CMP=Share_iOSApp_Other

‘They treated us like animals’: Haitians angry and in despair at being deported from US

Haitian deportees arriving from Texas say they were ‘rounded up like cattle and shackled like criminals’

Joe Parkin Daniels in Port-au-Prince

Published:

05:00 Sunday, 26 September 2021

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When Evens Delva waded across the Rio Grande with his wife and two daughters, he had dreams of starting a new life in Florida. But less than a week later, he and his family stepped on to the tarmac in Port-au-Prince, the sweltering and chaotic capital of Haiti, with nothing except traumatic memories and a feeling of bubbling anger.

Delva, along with nearly 2,000 other Haitians, was deported from southern Texas this week to Haiti, despite having lived in Chile for the past six years and having few remaining connections to his home country. His younger daughter, who is four, does not hold Haitian citizenship, having been born in Chile, and speaks more Spanish than Haitian Creole.

“I don’t know what we’ll do, we don’t have anywhere to stay or anyone to call,” the 40-year-old said, moments after getting off the plane in the blistering midday Caribbean heat. “All I know is that this is the last place I want to be.”

Evens Delva and his wife at Port-au-Prince airport in Haiti on Friday after being deported from Texas. Photograph: Joe Parkin Daniels/The Guardian

It is not hard to understand why. Haiti, the poorest country in the western hemisphere, is mired in overlapping crises. Gasoline shortages and blackouts are a daily reality, while warring gangs routinely kidnap for ransom and wage battle on the streets.

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The grim situation only worsened when the president, Jovenel Moïse, was assassinated in his home on 7 July, triggering a political power struggle and further instability and street violence. On 14 August, a 7.2-magnitude earthquake struck the country’s poor southern peninsula, killing more than 2,200 people and leaving tens of thousands homeless.

US envoy to Haiti resigns over ‘inhumane’ decision to deport migrants

The Biden administration’s decision to deport thousands of Haitians under such circumstances drew opprobrium around the world, and prompted the US envoy to Haiti to resign in protest. Haiti is “a country where American officials are confined to secure compounds because of the danger posed by armed gangs in control of daily life”, he wrote in his resignation letter. “Surging migration to our borders will only grow as we add to Haiti’s unacceptable misery.”

Last week, the world was shocked by images of police officers on horseback charging at desperate Haitian migrants near a camp of 12,000, set up under the Del Río-Ciudad Acuña International Bridge. Delva was on his way to buy food and water for his family when the cavalry charge sent him and dozens of his compatriots running in a frenzy.

“We were rounded up like cattle and shackled like criminals,” he said, having spent the six-hour flight from San Antonio with his hands and legs tied.

“They treated us like animals,” added Maria, his wife.. “We’ll never forget how that felt.”

. . . .

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

David Shipler does a great job of exposing the hypocrisy and intellectual dishonesty of Mayorkas and other Biden Administration immigration officials.

America’s Callous Border

By David K. Shipler

Several years ago, a gray-haired passport control official at Heathrow Airport in London, noting “writer” under “occupation” on my landing card, asked me what I wrote. I was finishing a book on civil liberties, I told him, with a chapter on immigration. That caught his interest. He leaned forward, glanced around, lowered his voice and said, “I loathe borders.”

Funny line of work you’re in, I said. We shared a chuckle, he stamped my passport, and I crossed the border that he loathed.

We have nation states, and so we have borders. Dictatorships need them to keep people in, lest their countries be drained of the talented and the aspiring. Democracies need them to keep people out—often those with talent and aspiration who are fleeing to safety and opportunity. So far, the United States is lucky enough to be the latter. So far.

When desperate fathers and mothers are drawn with admiring naïveté to the beacon of America, when they carry their children through months of torment by mountain jungles and predatory gangs, when their courage and towering fortitude set them apart from the masses, shouldn’t they be embraced when they reach the final border of a nation of fellow immigrants that touts its compassion and humanity?

Cut through the crazy tangle of immigration laws, regulations, and inconsistent enforcement to the essential ethic, and the answer is an obvious yes. But the obvious is not obvious in the White House or in the Department of Homeland Security or in the ranks of the beleaguered Border Patrol, whose horsemen scramble, as if herding cattle, to intercept frantic Haitians wading from the Rio Grande onto the banks of freedom and promise.

Instead, a new torment is found: Haitians with enough grit to leave their country a decade or so ago and build lives on the margins in Brazil, Chile, and elsewhere are taken from their first steps onto U.S. soil and summarily—summarily, without due process—deported. And where to? To Haiti, a failed state where many have long since lost family or work or even places of shelter. To Haiti, which has collapsed into such violence and disarray that the State Department warns Americans on its website: “Do not travel to Haiti due to kidnapping, crime, civil unrest, and COVID-19.”

What is wrong with the air in the White House? Is there not enough oxygen? What accounts for the impaired thinking that seems to transcend administrations, from Republican to Democratic. Where is the regard for human dignity? Why is it so often absent in the calculations that create policy?

Donald Trump wore callousness on his sleeve and was proud of it. His base hooted its applause at his vilification of Mexican immigrants as rapists and drug dealers. By contrast, Joe Biden wears a badge of empathy. His mantra is compassion. “Horrible” and “outrageous” were the words he found to describe the photographed attacks on Haitians from horseback. He halted the use of horses and vowed that agents responsible “will pay.” He also said, “It’s simply not who we are.”

But it is who we are. The images have been compared to old photos of white overseers on horseback commanding enslaved Blacks in the fields. The Border Patrol in cowboy hats have been compared to Texas Rangers “who were celebrated for their excellent ‘tracking skills’ that were put to use to hunt and capture enslaved people,” said historian Monica Martinez of the University of Texas.

These are compelling analogies with painful resonance. They are also flawed as parallels, for the Black migrants at the border are not slaves. They are clamoring to be here, crossing illegally, seeing the border as a threshold. They were not brought here in chains against their will. Some are being removed in chains against their will.

Nevertheless, in a sense they are enslaved by their blackness. If white Canadians tried this up north, does anybody truly believe that they would be treated as the Black Haitians are? Animating America’s conscience should not require reaching back to the sin of slavery. The present ought to be enough.

Our borders always put our split personality on display: We are cruel and welcoming, hateful and helpful, defined by doors closed at times to entire ethnic groups and then opened to invigorate the nation with willing hands and vital contributions.

In fact, if the country is not sufficiently moved by simple morality, then it might consider self-interest. The U.S. population growth rate has been falling steadily since 2008, dropping to a mere 0.58 percent from 2020 to 2021. Many regions lack skilled workers, as homeowners and small business owners and even hospitals can testify from trying to hire carpenters, plumbers, electricians, welders, mechanics, and nurses. We should have winced when one Haitian deportee was quoted as describing himself as a welder and carpenter.

Using abuse to manipulate determined people did not work under Trump—a lesson that Biden and his advisers might have learned. Trump’s administration separated children from their parents at the border, his aides reasoning that families heading north would get the message and—what?–abandon their fortitude and survival instincts, turn around, and head back to life-threatening misery?

So, too Biden officials are reportedly figuring that tossing Haitian expatriates into Haiti’s maelstrom will dissuade others from coming. In other words, don’t be humane, and folks will give up. But they won’t give up. They will still roll the dice, because there’s always a chance, especially since some are being allowed to stay, at least for a while, pending proper examination of their asylum claims as the law requires. When your ship has sunk, you don’t stop clinging to a piece of flotsam just because some shipmates have slipped off into the sea.

What the Biden White House needs is somebody in an influential position who has made this journey, who has shepherded family and children through jungles and ganglands to reach this supposedly promised land. That official might bring to the Oval Office a glimmer of understanding and respect for the force of personality and perseverance that drive a person toward our callous border.

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

Something about the DHS Secretary job seem to require checking honesty, common sense, historical perspective, and humanity at the door, not to mention the true “rule of law.”

🇺🇸Due Process Forever!

PWS

09-26-21

🏴‍☠️👎🏽BIA BLOWS DUTY TO ADJUDICATE CAT, OIL MISREPRESENTS RECORD BEFORE CIRCUIT — Latest 5th Cir. Reject Shows Festering Competence & Ethical Problems @ Garland’s DOJ!🤮 — The BIA Ignores Matter of L-O-G-, But YOU Shouldn’t!

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60807-CV0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca5-cat-remand-abushagif-v-garland#

Abushagif v. Garland

“Abushagif contends that the BIA abused its discretion by entirely failing to address his CAT claim. On that point, he is correct. A CAT “claim is separate from . . . claims for asylum and withholding of removal and should receive separate analytical attention.” Efe v. Ashcroft, 293 F.3d 899, 906–07 (5th Cir. 2002). Moreover, the BIA must not leave asserted CAT claims unaddressed. See Eduard v. Ashcroft, 379 F.3d 182, 196 (5th Cir. 2004). The government does not dispute that Abushagif raised a CAT claim in his motion to reopen. The government avers, however, that Abushagif did not present his claim to the Board and thus failed to exhaust it. See 8 U.S.C. § 1252(d)(1). That is flatly incorrect; Abushagif raised his CAT claim several times in his briefing before the BIA. It is confounding that the government says otherwise. The government also contends that remanding the CAT claim would be “futile” because, even if the BIA had addressed it, the Board still would not have granted his motion to reopen, given its determination that Abushagif had generally failed to submit reliable evidence in support of his claims of persecution. That contention, however, cannot overcome the plain command of our caselaw: The Board must address CAT claims where they are raised. See Eduard, 379 F.3d at 196. We therefore remand for the limited purpose of the Board’s addressing Abushagif’s CAT claim.”

[Hats off to pro bono publico counsel Alison Caditz and Jeri Leigh Miller!]

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

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

The government does not dispute that Abushagif raised a CAT claim in his motion to reopen. The government avers, however, that Abushagif did not present his claim to the Board and thus failed to exhaust it. See 8 U.S.C. § 1252(d)(1). That is flatly incorrect; Abushagif raised his CAT claim several times in his briefing before the BIA. It is confounding that the government says otherwise.

“Confounding,” but not surprising to any of us who follow the continuing meltdown of justice and callous indifference to the law, truth, and human lives @ Garland’s failed and failing Department of “Justice.”

The government also contends that remanding the CAT claim would be “futile” because, even if the BIA had addressed it, the Board still would not have granted his motion to reopen, given its determination that Abushagif had generally failed to submit reliable evidence in support of his claims of persecution. That contention, however, cannot overcome the plain command of our caselaw: The Board must address CAT claims where they are raised.

Basically, OIL, argues that even if they had actually addressed CAT, the BIA would still have stiffed the respondent’s claim because that’s what a “programmed to deny for any reason” BIA does. Why bother with a BIA decision when a denial is “predetermined?” Is this really the sad state of due process at Garland’s DOJ? Apparently!

Let’s put this in context. The respondent is from Libya, a country notorious for torture. Here’s an excerpt from the latest (2020) Department of State Country Report on Libya:

While the 2011 Constitutional Declaration and postrevolutionary legislation prohibit such practices, credible sources indicated personnel operating both government and extralegal prisons and detention centers tortured detainees (see section 1.g.). While judicial police controlled some facilities, the GNA continued to rely on armed groups to manage prisons and detention facilities. Furthermore, armed groups, not police, initiated arrests in many instances. An unknown number of individuals were held without judicial authorization in other facilities nominally controlled by the Ministry of Interior, Ministry of Defense, or in extralegal

Country Reports on Human Rights Practices for 2020

United States Department of State • Bureau of Democracy, Human Rights and Labor

LIBYA 7

facilities controlled by GNA-affiliated armed groups, LNA-affiliated armed groups, and other nonstate actors. Treatment varied from facility to facility and typically was worst at the time of arrest. There were reports of cruel and degrading treatment in government and extralegal facilities, including beatings, administration of electric shocks, burns, and rape. In many instances this torture was reportedly initiated to extort payments from detainees’ families.

Also, the 5th Circuit is generally considered the most conservative and pro-Government Circuit. It is a jurisdiction where the Government has to work hard and really, really screw up to lose an immigration case.

Two of the panel judges in this case are GOP appointees: Judges Engelhardt (Trump), and Smith (Reagan). The third panel member, Judge Higginson is an Obama appointee. Judge Jerry E. Smith, who wrote this opinion, is known as one of the most conservative Federal Judges in America! If these jurists see problems, you can be sure they actually exist!

One thing that unites Federal Judges across the ideological spectrum is dislike of being lied to by DOJ attorneys! Evidently, that’s no longer of concern to Judge Garland now that he is the purveyor, rather than the recipient, of misrepresentations, untruths, and sloppy, unprofessional work from DOJ attorneys!

How travesties like this, that happen at Garland’s DOJ on a daily basis, in “life or death” cases, is acceptable professional judicial performance is beyond understanding!

Additionally, how clearly misrepresenting the facts of record is ethically acceptable performance for OIL attorneys is totally beyond me!

Maybe its time for the House and Senate Judiciary Committees to call Judge Garland before them for oversight to examine his continuing mismanagement of EOIR, America’s worst, most backlogged, most blatantly unfair, court system, that has not materially improved during his tenure. They should also inquire as to why he continues to tolerate unethical performance from OIL Attorneys making material misrepresentations to Federal Courts in attempting to defend the indefensible performance of the BIA in immigration litigation. Also, why hasn’t Garland spoken out about the illegal suspension of asylum laws enacted by Congress at our borders? Human lives are at stake here!

The idea that Garland intends to “fix” this problem by throwing 200 new Immigration Judges into this broken, dysfunctional system, without first addressing any of the structural, management, competence, personnel, and institutional bias issues at EOIR is beyond absurd! “Management 101” says you fix the system by rooting out and replacing incompetent and unqualified judges, replacing incompetent managers with competent ones, and fixing the many broken operational pieces of the Immigration Court System before expanding it.

This means, at a minimum, slashing the backlog by getting hundreds of thousands of old, non-priority cases off the docket now, stopping endemic “Aimless Docket Reshuffling” at EOIR, installing a functional e-filing system, getting competent representation into the Immigration Courts, replacing the current institutionalized “worst practices” with “best practices,” and instituting real judicial training by experts from outside EOIR.

Only then, after the system has been made functional, should it be expanded, if needed. Otherwise, it’s like trying to fix defective automobile production by hiring more workers and speeding up the assembly line, thereby producing more defective vehicles without fixing that which caused the defects in the first place.

This case also shows the critical, life-saving role of pro bono counsel in Immigration Court. Without the heroic efforts of pro bono publico counsel Alison Caditz and Jeri Leigh Miller, Mr. Abushagif would probably be hanging from a ceiling fan in Libya right now!

Torture — Garland indifferent to wrong torture decisions from BIA?
Photo by David R. Badger, Creative Commons

I was pleased to see that Judge Smith cited my precedent opinion in Matter of L-O-G-, 21 I&B Dec. 413 (BIA 1996) in his opinion. See FN 1. In L-O-G-, we held that “we have been willing to reopen ‘where the new facts alleged, when coupled with the facts already of record, satisfy us that it would be worthwhile to develop the issues further at a plenary hearing on reopening.’” 21 I&N Dec. at 419 (citations omitted).

Yes, folks, there was a time long ago and far away when BIA Chairs actually functioned as appellate judges: participating in cases at both the panel and en banc level, writing decisions, and, where necessary, filing dissents, without regard to “career enhancement.” That was in addition to BIA management duties, being a senior member of EOIR’s executive team, and many public speaking, writing, and other public information and educational functions.

While today’s BIA and many Immigration Judges routinely ignore Matter of L-O-G- and its important teaching, it remains “good law,” as found by Judge Smith. Practitioners should be citing it in every motion to reopen and insisting that EOIR start following its own precedents, even where they produce results inconsistent with the restrictionist positions urged by DHS or the “round ‘em up and move ‘em out attitudes” that still seem prevalent at Garland’s DOJ.

It’s rather ironic that Federalist Society hero Judge Jerry E. Smith understands me better than Garland’s BIA!

Garland seems uninterested in making the long overdue bold progressive reforms necessary to restore due process, consistency, humanity, and racial justice to our broken and dysfunctional Immigration Courts. That means the battle over the next four years is likely to shift to the Article III Courts and Congress to finally get this utterly disgraceful, yet fixable, system back on track! This is also what’s required to save at least some of the vulnerable human lives now being “chewed up and spit out” by Garland’s ☠️ “Deadly Clown Courts” 🤡 and their ethics-challenged OIL defenders!🤮

🇺🇸Due Process Forever!

PWS

09-26-21

⚖️OLD NEWS FOR “COURTSIDERS” — Garland Names Former BIA Chair & Chief IJ Hon. David L. Neal As New EOIR Director! — Can He Fix America’s Most Dysfunctional Court System?

https://www.justice.gov/eoir/pr/attorney-general-merrick-b-garland-announces-appointment-david-neal-director-executive

Department of Justice

Executive Office for Immigration Review

FOR IMMEDIATE RELEASE

Friday, September 24, 2021

Attorney General Merrick B. Garland Announces Appointment of David Neal as Director of the Executive Office for Immigration Review

WASHINGTON – Attorney General Merrick B. Garland today announced the appointment of David L. Neal as the Director of the Executive Office for Immigration Review (EOIR) at the Department of Justice.

“The Justice Department’s commitment to a fair and efficient immigration court system, governed by due process and the rule of law, is exemplified by recent policy changes and our pursuit of significant additional resources,” said Attorney General Garland. “David Neal brings invaluable experience that will help further EOIR’s mission.”

The EOIR director is responsible for the supervision of the Chairman of the Board of Immigration Appeals (BIA), the Chief Immigration Judge, the Chief Administrative Hearing Officer and all agency personnel. EOIR has more than 2,300 employees in its 69 immigration courts nationwide, at the BIA and at EOIR headquarters in Falls Church, Virginia. As provided in the President’s Budget Request for FY 22, EOIR anticipates increasing its immigration judge corps from 535 today to 734 by the end of the next fiscal year.

Most recently, Mr. Neal was a consultant specializing in immigration policy and practice. Previously, he held positions at EOIR over two decades. From 2009 to 2019, he served as Chairman of the BIA at EOIR, where he was chief judge of the appeals board and managed judicial and administrative operations. Mr. Neal served in multiple other capacities at EOIR, including as Vice Chairman of the BIA, Chief Immigration Judge, Assistant Chief Immigration Judge, Immigration Judge and Assistant to the Director.

Prior to his tenure with EOIR, Mr. Neal served in the U.S. Senate Judiciary Committee as chief counsel of the Subcommittee on Immigration. Mr. Neal began his legal career as the Director of Policy Analysis at the American Immigration Lawyers Association and also worked for a law firm in Los Angeles, representing immigration cases before the former Immigration and Naturalization Service, the State Department, the Department of Labor and EOIR.

Mr. Neal received his Bachelor of Arts from Wabash College in Crawfordsville, Indiana, Master of Divinity from Harvard University’s School of Divinity and his Juris Doctor from Columbia Law School. Mr. Neal is a member of the District of Columbia and New York bars.

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David thus becomes the first EOIR Director to have served as both BIA Chair and Chief Immigration Judge, as well as briefly as an Immigration Judge.

Congratulations and good luck to David in his new position! It’s going to take a monumental effort, extraordinary management ability, creativity, and lots courage and determined due-process-best-practices-oriented leadership to straighten out the godawful legal, professional, and administrative mess in America’s most unfair and dysfunctional court system, now running a largely self-created 1.4 million case backlog.

Will he be able to hold off the politicos at DOJ and finally put an end to the DOJ-generated “Aimless Docket Reshuffling” (“ADR”) that has been the major cause of the 1.4 million case backlog at EOIR that has gown up over the last two decades of mismanagement at DOJ and EOIR? Will he be able to end the reprehensible officially-sanctioned “victim shaming” and cowardly “blame shifting” that has been heaped by the DOJ and EOIR on those suffering from its defective administrative practices over the past two decades?

If, as Garland claims, 200 new Immigration Judge positions will be added by the end of FY 2022, will David be able to institute merit-based Immigration Judge hiring that 1) involves public input from those who actually practice before the Immigration Courts, e.g., the private bar; 2) gives appropriate credit to “practical scholars” in immigration, human rights, and civil rights with clearly-established records of independent thinking and unswerving commitment to due process for individuals; 3) appropriately honors and weighs experience gained actually representing individuals, particularly asylum seekers, in Immigration Court, and 4) removes demeaning “production quotas,” limitations on docket management, and unnecessary restrictions on public scholarship, writing, and teaching which have made the job intentionally unattractive to many of the “best and brightest” progressive candidates from the private immigration and human rights sector. Will he actually go out and actively recruit a broader, more diverse, and more representative candidate base for IJ hiring, rather than using “insider procedures” that don’t reach or encourage many of the best candidates for these important jobs?

HINT: More “gimmicks,” like “dedicated dockets,” continued “Mickey Mouse” 🐭 uber enforcement “production quotas,” and appointments of judges who have never represented an individual in Immigration Court won’t do the trick! That is being proved every single day, beyond any reasonable doubt!

Nor will being at war with the National Association of Immigration Judges (“NAIJ”) and their leadership further due process. NAIJ leaders are the only ones at EOIR who have been providing meaningful professional training over the past four years of darkness and ignorance at EOIR.

They, along with the Private/NGO/Clinical Bar and OPLA Assistant Chief Counsel have the best and most practical ideas on how to fix EOIR! David would be wise to give them all “seats at his table,” and listen carefully to their views, rather than attempting to “lock them in a dark cellar,” as was the practice of the Trump immigration kakistocracy that effectively destroyed EOIR!

Since “built to fail” enforcement-generated non-solutions are the things EOIR appears “wedded to,” David is going to have to persuade Garland and his lieutenants to radically change course. Can he get them to treat Immigration Courts as “real courts,” controlling the lives of “real human beings,” folks like you and me, in dire need of real judicial administration and real progressive expert judges, to get out of EOIR’s current “death spiral.”☠️ Or, will we see a continuation of “Dred Scottification” of women and people of color, along with substandard trial judging, defective appellate review, and lousy biased precedents that end up creating more problems than they solve? 🤮 Only time will tell!

🇺🇸Due Process Forever!

PWS

09-24-21

🏴‍☠️GARLAND’S FAILED BIA REAMED BY 3RD CIR. ON ANTI-ASYLUM BIAS, LACK OF BASIC COMPETENCE! — “First, the Board’s conclusion ignores overwhelming evidence that Ghanem was persecuted on account of political opinion. Second, it erroneously treated familial relationships as disqualifying and failed to give the proper weight to the substantial record evidence that a protected ground remains one central reason for Ghanem’s persecution.” — Ghanem v. AG

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-bia-ignored-overwhelming-evidence-of-persecution-ghanem-v-atty-gen#

CA3: BIA Ignored “Overwhelming Evidence” of Persecution: Ghanem v. Atty. Gen.

Ghanem v. Atty. Gen.

“Adel Ghanem, a former lawful permanent resident of the United States, seeks to avoid removal to Yemen, from which he fled to avoid persecution on account of political opinion. He pursues three forms of relief that were denied by the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA): asylum under the Immigration and Nationality Act, 8 U.S.C. § 1158(a), withholding of removal under the Act, 8 U.S.C. § 1231(b)(3), and withholding of removal under the Convention Against Torture, 8 U.S.C. § 1252, 8 C.F.R. § 1208.16(c). Ghanem was kidnapped and tortured before being convicted and sentenced to ten years’ imprisonment for political opposition to the Houthi regime. We will therefore grant the petition for review and remand to the BIA. … We begin by reviewing the agency’s determination that Ghanem was ineligible for asylum under the INA because he was not persecuted “on account of” political opinion. We perceive two errors in its analysis: First, the Board’s conclusion ignores overwhelming evidence that Ghanem was persecuted on account of political opinion. Second, it erroneously treated familial relationships as disqualifying and failed to give the proper weight to the substantial record evidence that a protected ground remains one central reason for Ghanem’s persecution. … Illustrating “gross, flagrant [and] mass violations of human rights” that he would be unable to escape, the record evidence not only fails to support but directly contradicts the BIA’s conclusions that Ghanem is not likely to be tortured with the government’s acquiescence, if returned to Yemen. 8 C.F.R. § 1208.16(c)(3)(iii).8 The denial of relief under CAT therefore cannot withstand even our most deferential review. … For the foregoing reasons, we will grant Ghanem’s petition, vacate the BIA’s order, and remand to the agency for further proceedings consistent with this opinion.”

[Hats off to pro bono publico appointed counsel Will Weaver, Ian Gershengorn and Sam Kaplan!]

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How is the BIA’s grotesque misapplication of asylum and CAT law and intentional distortion of the record evidence acceptable adjudication from a Federal Court, even a “quasi-judicial administrative tribunal?” Lives are at stake are here! But, Garland remains indifferent to the deadly ☠️ daily injustices and stunning judicial incompetence and bias he promotes, coddles, defends, and enables at his dysfunctional EOIR!

And what is his OIL doing defending this garbage before the Circuits? Garland’s DOJ is an ethical cesspool and a slimy mess of legal incompetence! Where’s the long overdue “thorough housecleaning” of this gross abuse of taxpayer dollars and walking talking insult to the Canons of Legal and Judicial Ethics!

These aren’t just “honest legal mistakes!” No way! They are the product of an anti-asylum, anti-immigrant, anti-due process, anti-people of color “culture” which was actually encouraged and promoted at EOIR during the Trump regime and still endures!

It starts, but doesn’t end, with a BIA “packed” with a number of Trump/Miller appointees who were nationally renowned for their unsuitability to fairly adjudicate ANY asylum case, let alone to be “elevated” to the highest immigration tribunal. But, it’s not like any BIA Appellate Judge has the guts and integrity to stand up and speak out for immigrants’ rights, human rights, and constitutional due process!

It’s outrageous that the BIA as currently comprised is charged with setting precedents, maintaining consistency, and guaranteeing fairness for asylum applicants, particularly women and people of color. Of course this type of misconduct and incompetence will continue to generate huge, uncontrolled backlogs! THIS national, even international, disgusting disgrace will be Garland’s lasting legacy!

The proposed “asylum reform regulations” and all other immigration and racial justice reforms put forth by Biden will fail without a better, progressive, expert BIA totally committed to due process, fundamental fairness, and racial justice! Why hasn’t Congress demanded an accounting from Garland for his jaw-dropping mismanagement of the Immigration Courts and his failure to make obvious administrative reforms?

Demand better from Garland and the Biden Administration! This disgraceful, dysfunctional, deadly mess at EOIR is NOT OK!🤮👎🏽

🇺🇸Due Process Forever!

PWS

09-23-21

SCHUMER RIPS BIDEN’S XENOPHOBIC ASYLUM POLICIES, 🤮 ILLEGAL EXPULSIONS OF HAITIANS TO DANGER ZONES!☠️

Border Patrol on Horses — The Biden Administration’s treatment of Black folks trying to apply for asylum has a certain “Jim Crow” appearance!
PHOTO: times of Israel.com

Igor Bobic reports for HuffPost:

https://www.huffpost.com/entry/haiti-migrants-biden-chuck-schumer_n_6149f781e4b077b735eb78f3

. . . .

“We cannot continue these hateful and xenophobic Trump policies that disregard our refugee laws,” Schumer said in a speech on the Senate floor. “We must allow asylum-seekers to present their claims at our ports of entry and be afforded due process.”

. . . .

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

Exactly what I’ve been saying at Courtside!

Fact is, nobody appears to know what’s really happening at the border and what policies and criteria are applied. One moment, the Biden Administration brags that Haitians are being rapidly and arbitrarily excluded with no due process. A little later, they claim that many Haitians are being allowed to come into the U.S. for “processing.” https://madison.com/news/national/many-haitian-migrants-released-in-us-trump-sues-niece-ny-times-biden-doubles-vaccine-purchase/article_89244157-a530-500b-9095-ba676e4a2307.html

Who knows what “processing” is? Meat processing? Removal processing? Asylum processing? Who’s making these life or death decisions? What criteria are they using?

I see little evidence that the key decisions are being made by trained Asylum Officers. Rather, the Haitians appear to be at the whim and the mercy of the Border Patrol Agents who encounter them! “Apprehend” seems like a very misleading term for those mostly seeking just to turn themselves in and apply for asylum in the absence of a functioning legal screening system at ports of entry.

One thing we know for sure: Myorkas’s claim that it is “safe” to indiscriminately return individuals to Haiti, a nation every true expert agrees is in total physical and political crisis, is pure BS! The kind of thing that Gauleiter Miller and his toadies would say!

Almost all experts, and Courtside, emphasized the need for the Biden Administration to use the time between the election and the inauguration to “hit the ground running” to have a comprehensive plan ready to deal with asylum cases at ports of entry. This included reopening the ports, getting trained and well-qualified Asylum Officers in place, and fixing the dysfunctional mess at EOIR on at least a temporary basis with real experts on asylum law replacing the BIA and some of the other Immigration Judges unqualified to fairly decide asylum cases.

Instead, they dawdled and did same old old, same old. EOIR remains a dysfunctional mess with a total lack of guidance and a shortage of Immigration Judges skilled in fair adjudication of asylum claims.

🇺🇸Due Process Forever!

PWS

09–22-21

👎🏽☠️ 8 MONTHS INTO ADMINISTRATION, MAYORKAS’S & GARLAND’S FAILURE TO RE-ESTABLISH LEGAL ASYLUM SYSTEM AT BORDER CREATES UNNECESSARY HUMANITARIAN TRAUMA & CHAOS FOR HAITIANS & OTHERS SEEKING PROTECTION! — 71 Human Rights NGOs Excoriate Biden Administration’s Callous Trashing Of Human Rights & Campaign Promises! — “[W]e, the 71 undersigned organizations, are appalled that you have chosen to file a notice of appeal in the Huisha-Huisha litigation, resisting an order to process the protection claims of families with children who seek asylum.”

Arelis R. Hernandez
Southern Border Reporter
Washington Post

https://www.washingtonpost.com/national/haitian-migrants-mexico-texas-border/2021/09/16/4da1e366-16fe-11ec-ae9a-9c36751cf799_story.html

Arelis R. Hernández and Nick Miroff for WashPost:

DEL RIO, Tex. — Thousands of Haitian migrants who have crossed the Rio Grande in recent days are sleeping outdoors under a border bridge in South Texas, creating a humanitarian emergency and a logistical challenge U.S. agents describe as unprecedented.

Authorities in Del Rio say more than 10,000 migrants have arrived at the impromptu camp, and they are expecting more in the coming days. The sudden influx has presented the Biden administration with a new border emergency at a time when illegal crossings have reached a 20-year high and Department of Homeland Security officials are straining to accommodate and resettle more than 60,000 Afghan evacuees.

The migrants arriving to Del Rio appear to be part of a larger wave of Haitians heading northward, many of whom arrived in Brazil and other South American nations after the 2010 earthquake. They are on the move again, embarking on a grueling, dangerous journey to the United States with smuggling organizations managing the trip, according to border authorities and refugee groups.

. . . .

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

Read the rest of the article at the link.

The arrival of asylum seekers at the Southern Border is predictable. Contrary to GOP right wing nativist BS, asylum seekers don’t present a significant national security threat to the U.S.

On the other hand, Texas Governor Gregg Abbott and his GOP right wing crazies are a clear and present existential danger to our heath and security as a nation. Don’t let Abbott and his neo-fascist gang shrift the focus away from their lawless, stupid, and immoral behavior — with glaring racial overtones!

The current disorder is the direct result of Mayorkas and Garland not taking the obvious steps to re-establish credible fear screening at ports of entry and the lack of progressive leaders and judges at EOIR who could cut through the self-created backlog and establish and enforce fair precedents and procedures that would enable timely, yet fair and efficient, processing of asylum cases in Immigration Court for those who pass credible fear.

Instead, Garland has gone with inane, backlog-building, aimless-docket-reshuffling encouraging “gimmicks” like “Dedicated Dockets,” and ill-advised proposals to increase use of “expedited removal” and limit the rights of asylum seekers to de novo hearings, without instituting the major EOIR reforms necessary to make such a system credible.

So far, the results have been predictably chaotic and ineffective. By dragging their feet on elimination of the Title 42 farce initiated by Trump & Miller, Garland and Mayorkas now find themselves “between a rock and a hard place” because of District Judge Sullivan’s recent order finding the misuse of Title 42 to “orbit” asylum seekers to doom without any process was likely illegal.

A restored, fair, legal asylum system inevitably would result in the legal admission of more asylees. Again, contrary to the GOP blather, that is something 1) our law requires, and 2) our country needs. Running a viable refugee program for the Americas outside U.S. borders is also something that should already have been in operation and could reduce the necessity for irregular entries.

Restoration of the rule of law and morality at the border would also take the regulation of immigration out of the hands of smugglers and cartels and restore it to the Government. But, that requires both an understanding of the dynamics of human migration and the courage to do the right thing in making the system work — not as a “false deterrent” but as a fair, generous, efficient, and equitable system, led by and composed of progressive human rights experts.

In the wake of the DOJ’s decision to appeal Judge Sullivan’s order and reports that the Biden Administration will begin illegal deportations of Haitians back to danger zones in Haiti without any due process, 71 human rights organizations wrote a letter blasting the Administration’s actions.

Joint Letter to President Biden, Secretary Mayorkas, Attorney General Garland on Title 42_09172021

September 17, 2021
Hon. Joseph R. Biden, Jr. President of the United States 1600 Pennsylvania Avenue, NW Washington, DC 20500
Hon. Alejandro N. Mayorkas
Secretary of Homeland Security
U.S. Department of Homeland Security 2707 Martin Luther King Jr. Avenue, SE Washington, DC 20528
Hon. Merrick Garland
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue NW Washington, DC 20530
Dear President Biden, Secretary Mayorkas, and Attorney General Garland:
In the wake of multiple federal court decisions holding that your administration’s policies are likely unlawful, we, the 71 undersigned organizations, are appalled that you have chosen to file a notice of appeal in the Huisha-Huisha litigation, resisting an order to process the protection claims of families with children who seek asylum. This decision serves as a particularly disturbing step in what is emerging to be a clear pattern of failure to uphold the refugee laws enacted by Congress. We write to urge you to immediately change course before you further tarnish this administration’s record and inflict even more harm on families, children and adults seeking our country’s protection. We call on the administration to immediately end its embrace, defense, and advancement of illegal and cruel Trump administration policies that harm families and people seeking protection and bolster xenophobic rhetoric by treating people seeking protection as threats. Instead, we urge your administration to restore access to U.S. asylum at ports of entry and also to immediately stop blocking and expelling asylum seekers and migrants to life-threatening dangers.
On September 16, a federal district court held that the government likely does not have authority under U.S. law to implement the Title 42 policy, which subjects people to “real threats of violence and persecution” by returning them to danger in Mexico or the countries they fled, and enjoined the use of the policy against families. Rather than respect human rights and restore asylum in compliance with this ruling, the administration has already filed a notice of appeal in this case. Earlier this month, another federal district court held that the government’s policy of turning back people seeking protection at ports of entry is likely unlawful under the Immigration

and Nationality Act. Your administration must reverse course and accept these court rulings, immediately take steps to restart asylum processing, and permanently end these policies, which were designed to deter and punish people seeking safety in the United States and betray our values and legal obligations towards refugees.
Rather than abiding by campaign promises to uphold the legal right to seek asylum and treat migrants humanely, your administration has embraced and escalated the unlawful Title 42 policy created by the Trump administration to use public health as a pretext to evade U.S. refugee laws. In August 2021, your administration issued a new Centers for Disease Control and Prevention (CDC) order extending the policy and relying on much of the same dangerous and false rhetoric that the Trump administration relied on in its CDC orders.
The human toll of the Title 42 policy during your first eight months in office is enormous. Since January 2021, there have been at least 6,356 public and media reports of violent attacks— including rape, kidnapping, trafficking, and assault—against people blocked from requesting asylum protection at the U.S.-Mexico border and/or expelled to Mexico. The U.N. Refugee Agency (UNHCR) and other international bodies have repeatedly condemned the use of Title 42 to return refugees to danger in violation of international law and urged the United States to restore access to asylum. Leading public health experts have warned the administration time and time again that the policy has no scientific basis as a public health measure and urged the use of rational science-based measures to process asylum seekers and migrants to safety. In its ruling enjoining the use of Title 42, the district court also emphasized that the government’s public health arguments were specious.
This month, the Department of Homeland Security (DHS) expelled dozens of Haitian families and adults to danger in Haiti under Title 42, despite ongoing turmoil following the assassination of the country’s president in July and a major earthquake in August, and flew more than 6,000 Guatemalan migrants and asylum seekers directly to the danger they had fled in Guatemala without an opportunity to apply for U.S. asylum. Since August, DHS has also expelled asylum seekers and migrants directly to southern Mexico, where Mexican immigration authorities forced them to cross the border into remote areas of Guatemala. These expulsions to southern Mexico sparked public condemnation from UNHCR, which warned that this practice “increases the risk of chain refoulement—pushbacks by successive countries— of vulnerable people in danger, in contravention of international law and the humanitarian principles of the 1951 Refugee Convention.”
We further call on your administration to take all necessary legal steps to end the Migrant Protection Protocols (MPP), most importantly by immediately making a public commitment to issue a new policy memo that provides a fuller explanation for the decision to terminate MPP and that resolves any perceived Administrative Procedure Act (APA) issues identified by the district court in its ruling requiring the government to restart this shameful program. The APA
2

was the singular concern cited by the Supreme Court in its decision upholding the district court’s preliminary injunction, and the administration’s failure to date to commit to issuing a new policy memo raises serious concerns over whether you intend to use the legal challenge as cover to backtrack on your commitment to fulfill your campaign promise to end MPP.
During the two years that MPP was in effect, there were over 1,500 publicly reported cases of violent attacks against people returned to Mexico, including asylum seekers who were brutally murdered. In addition to subjecting individuals to life-threatening dangers under MPP, the program violated the due process rights of asylum seekers and migrants by stranding them in Mexico without access to legal counsel, forcing them to risk their lives to attend their court hearings—there have been numerous reports of asylum seekers in MPP being kidnapped while attempting to reach immigration court—and requiring many to prepare their cases while facing unrelenting fear and insecurity. It is clear that there is no way to make MPP lawful, humane, safe, or rights-respecting. The administration should take all lawful and necessary steps to preserve the MPP wind down and continue processing individuals previously subjected to MPP into the United States while taking immediate steps to address the District Court’s concerns to terminate the policy once and for all.
Policies that turn back, block, expel, and force asylum seekers and migrants to wait in danger are unlawful, as now confirmed by multiple federal courts, and we entreat your administration to immediately stop inflicting violence on people seeking safety in our country by permanently ending these policies and restoring asylum in compliance with U.S. and international refugee laws.
Sincerely,
ADL (Anti-Defamation League) African Communities Together Aldea – The People’s Justice Center Alliance San Diego
America’s Voice
American Friends Service Committee
American Immigration Lawyers Association
Asylum Seeker Advocacy Project (ASAP)
Bellevue Program for Survivors of Torture
Border Angels
Border Kindness
Border Organizing Project
Bridges Faith Initiative
Capital Area Immigrants’ Rights Coalition
CARECEN SF – Central American Resource Center of Northern California
3

Catholic Charities of Southern New Mexico Catholic Legal Immigration Network, Inc. Center for Justice and International Law (CEJIL) Center for Victims of Torture
Church World Service
Detention Watch Network
Familia: Trans Queer Liberation Movement
First Focus on Children
Florence Immigrant & Refugee Rights Project Grassroots Leadership
Haitian Bridge Alliance
HIAS
Hope Border Institute
Houston Immigration Legal Services Collaborative Human Rights First
Human Rights Initiative of North Texas
Immigrant Defenders Law Center
Immigration Equality
International Mayan League
International Refugee Assistance Project (IRAP) International Rescue Committee
Japanese American Citizens League
Jesuit Refugee Service/USA
Jewish Activists for Immigration Justice of Western MA Justice Action Center
Justice in Motion
Karen Organization of San Diego
Kino Border Initiative
Latin America Working Group (LAWG)
Lawyers for Good Government (L4GG)
National Immigrant Justice Center
National Immigration Law Center
National Immigration Project (NIPNLG)
National Network for Immigrant & Refugee Rights NETWORK Lobby for Catholic Social Justice
Oasis Legal Services
Oxfam America
Physicians for Human Rights
Project Blueprint
Refugees International
4

Safe Harbors Network
San Diego Immigrant Rights Consortium
South Bay Peope Power
Student Clinic for Immigrant Justice
Tahirih Justice Center
The Advocates for Human Rights
Transgender Law Center
Unified U.S. Deported Veterans resource Center
Unitarian Universalist Refugee & Immigrant Services & Education VECINA
Vera Institute of Justice
Washington Office on Latin America (WOLA)
Witness at the Border
Women’s Refugee Commission
Young Center for Immigrant Children’s Rights
5

Obviously, the Biden Administration has little regard for the human rights advocates who helped put them in office. Only time will tell whether disrespecting, antagonizing, and making enemies and adversaries out of a highly talented and motivated group of progressives, who successfully fended off some of the most grotesque human rights violations by the Trump kakistocracy, and who have demonstrated the capacity to consistently “out-litigate” the floundering DOJ, will prove to be a successful strategy!

“Floaters” — “Floaters — How The World’s Richest Country Responds To Asylum Seekers” — Those who don’t die in the river, the desert, or at the hands of traffickers while trying to seek asylum in an arrogant America that disdains human rights and moral values face arbitrary and illegal removal to potential torture, rape, and death in the countries they fled! Why is the Biden Administration, like the Trump kakistocracy, afraid to make fair and honest determinations of qualifications for asylum?
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

🇺🇸Due Process Forever!

PWS

09-19-21

⚠️☹️ GARLAND REPORTEDLY WILL DISAPPOINT PROGRESSIVES AGAIN WITH SELECTION FOR EOIR DIRECTOR

By Paul Wickham Schmidt

Courtside Exclusive

September 17, 2021

According to sources inside and outside EOIR, Attorney General Merrick Garland will appoint former BIA Chair and retired EOIR Senior Executive David Neal to the key position of EOIR Director, in charge of the nation’s dysfunctional and hopelessly backlogged Immigration Courts. He certainly will be an improvement over the last permanent Director, Judge James McHenry, who was hand-selected by former Attorney General Jeff “Gonzo Apocalypto” Sessions.

But, progressives can’t expect the bold reforms and laser focus on due process that experts recommended. That’s simply not David’s “style,” nor is it his history at EOIR.

Progressives had hoped that the selection would come from among the many exceptionally well-qualified potential candidates in the private sector who spearheaded the effort to oppose the Trump regime and keep due process alive at EOIR. Indeed, many had anticipated, apparently in vain, that Garland would tap one of the many well-qualified minority female “practical scholars” from the NDPA to lead the court reform effort. Since its founding in 1983, EOIR has never had a female Director, and has only had one minority Director, the late Juan Osuna during the Obama Administration.

Neal will become the sixth White Male to serve as Director. He also would continue the “DOJ tradition” of appointing “insider bureaucrats” to the job rather than dynamic experts from the private sector. The latter might actually take bold actions to turn EOIR into an independent judiciary that would fulfill the now-abandoned vision of “through teamwork and innovation becoming the world’s best administrative tribunals, guaranteeing fairness and due process for all.”

Alas, Garland appears to have just as little interest in restoring that noble vision as his predecessors over the past two decades. That’s likely to not only further alienate the progressive advocacy community, but also to spell doom and suffering for many migrants and their frustrated, often pro bono, lawyers who must seek justice on a daily basis Garland’s regressive and totally dysfunctional “courts.”

🇺🇸Due Process Forever!

PWS

09-17-21

🇺🇸🗽⚖️😎BREAKING: FINALLY! — U.S. District Judge Emmet Sullivan Enjoins Biden’s Scofflaw Continuation Of Trump’s Illegal & Immoral Misuse Of Title 42 To Abuse Asylum Seekers! –“There is generally no public interest in the perpetuation of an unlawful agency action.”

Hon. Emmet G. Sullivan
US District Judge
DC

Here’s the decision in Huisha-Huisha v. Mayorkas:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/court-trump-biden-cdc-title-42-border-blockade-enjoined

KEY QUOTE

Finally, Defendants argue that “[a]ny time [the government]
is enjoined by a court from effectuating statutes enacted by
representatives of its people, it suffers a form of irreparable
injury.” Defs.’ Opp’n, ECF No. 76 at 38 (quoting Maryland v.
King, 133 S. Ct. 1, 3 (2012)). But, as explained above, the
Title 42 Process is likely unlawful, and “[t]here is generally
no public interest in the perpetuation of an unlawful agency
action.” Newby, 838 F.3d at 12.

*********************************“

“There is generally no public interest in the perpetuation of an unlawful agency action.” Yup! Couldn’t have said it better myself!

Who knows if this will stand. Both the DC Circuit and the Supremes have too often been willing to allow continued Government abuse of the rights of “mere migrants,” mostly of color, because they can’t really see them as fellow human beings, entitled to due process, justice, and human dignity!

But, at least for this moment in time, it’s a victory for due process, humanity, and judicial integrity.

🇺🇸Due Process Forever!

PWS

09-16-21

⚖️PULVERIZED! — 6th Cir. Slam Dunks 🏀 On Mayorkas/Garland Efforts To Avoid Consequences of Illegal USCIS Actions On U Visas!

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0217p-06.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/massive-u-visa-and-apa-victory-barrios-garcia-v-dhs-ca6#

Barrios Garcia v. DHS

“Plaintiffs have sufficiently alleged that USCIS has unreasonably delayed the adjudication of their U-visa applications. Because the BFD [“Bona Fide Determination”] process was issued after Plaintiffs’ complaints were filed, Plaintiffs should be allowed to amend their complaints should they wish to assert that USCIS has unreasonably delayed its determination that their U-visa applications are “bona fide.” … We hold that the issuance of the BFD Process moots no part of this case. We hold that 5 U.S.C. § 701(a)(1), 8 U.S.C. § 1252(a)(2)(B)(ii), and 5 U.S.C. § 701(a)(2) do not bar the federal courts from reviewing claims that USCIS has unreasonably delayed placing principal petitioners on the U-visa waitlist and adjudicating prewaitlist work-authorization applications. We hold that the federal courts may compel USCIS to place principal petitioners on the U-visa waitlist when an unreasonable delay has occurred per 5 U.S.C. § 706(1). We hold that § 706(1) allows the federal courts to command USCIS to hasten an unduly delayed “bona fide” determination, which is a mandatory decision under 8 U.S.C. § 1184(p)(6) and the BFD process. We hold, however, that the federal courts cannot invoke 5 U.S.C. § 706(1) to force USCIS to speed up an unduly delayed prewaitlist work-authorization adjudication, which is a nonmandatory agency action under 8 U.S.C. § 1184(p)(6) and the BFD process. We hold that Plaintiffs have sufficiently pleaded that USCIS has unreasonably delayed the principal petitioners’ placement on the U-visa waitlist. We further hold that Plaintiffs should be permitted to amend their complaints should they wish to challenge any delayed “bona fide” determinations. We thus REVERSE the district courts’ grants of the Government’s motions to dismiss and REMAND for further proceedings.”

[Hats way off to Brad Banias!]

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

Just another in the continuing litany of why Mayorkas and Garland aren’t getting the job done for immigrants. They continue to: 1) mindlessly defend Trump-era screw ups and invidiously motivated actions; 2) attempt to weasel their way out of accountability for misdeeds by their agencies. This case should have been settled, plain and simple!

The only good thing about the dilatory litigation tactics employed by DHS and DOJ is that they are building up some good case law precedents for those challenging Government immigration actions and hopefully costing the DOJ attorneys’ fees that can be plowed back into public interest litigation. Actually, the DOJ should be litigating “in the public interest,” but apparently someone forgot to tell “Team Garland.”

Trump and his xenophobic, insurrectionist colleagues were not a “normal” Administration. For the Biden folks to continue to ignore that and pretend like the White Nationalist, anti-democracy actions of the Trump kakistocracy/bureaucracy were “business as usual,” will be a never-ending disaster for the Dems!

🇺🇸Due Process Forever!

PWS

09-16-21

⚖️YET ANOTHER BIA PRECEDENT, MATTER OF SORAM, 25 I&N DEC. 378 (BIA 2010), BITES THE DUST IN 9TH CIR. — “We conclude that the text of 8 U.S.C. § 1227(a)(2)(E)(i) unambiguously forecloses the BIA’s interpretation of “a crime of child abuse, child neglect, or child abandonment” as encompassing negligent child endangerment offenses.” — Diaz-Rodriguez v. Garland (2-1)

Diaz-Rodriguez v. Garland, 9th Cir., 09-10-21, published

Here’s the opinion:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/10/13-73719.pdf

PANEL: Consuelo M. Callahan and*Paul J. Watford, Circuit Judges, and Jed S. Rakoff, District Judge.

Opinion by Judge Watford; Dissent by Judge Callahan

* The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation.

STAFF SUMMARY:

Granting Rafael Diaz-Rodriguez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that child endangerment, in violation of California Penal Code § 273a(a), does not constitute “a crime of child abuse, child neglect, or child abandonment” within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i).

In Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018), a divided panel held to the contrary, and a majority of the non-recused active judges voted to rehear the case en banc. However, after the petitioner passed away, the en banc court dismissed the appeal as moot and vacated the panel decision. The panel here observed that Martinez-Cedillo is no longer binding precedent, but explained that between its issuance and the decision to rehear the case en banc, two published opinions relied on it: Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), and Alvarez-Cerriteno v. Sessions, 899 F.3d 774 (9th Cir. 2018).

The panel concluded that the unusual circumstance here led it to conclude that this case falls outside the scope of the general rule that three-judge panels are bound to follow published decisions of prior panels. The panel explained that both Alvarez-Cerriteno and Menendez simply followed Martinez-Cedillo as then-binding precedent without engaging in independent analysis of the deference issue, and

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

DIAZ-RODRIGUEZ V. GARLAND 3

both decisions were effectively insulated from en banc review on that issue. The panel explained that both decisions are irreconcilable with a subsequent decision of the court sitting en banc because their reliance on Martinez-Cedillo is in conflict with the en banc court’s decision to designate that decision as non-precedential.

Applying the categorical approach, the panel identified the elements of California Penal Code § 273a(a): causing or permitting a child “to be placed in a situation where his or her person or health is endangered,” committed with a mens rea of criminal negligence. As to the federal offense, the panel explained that Congress enacted the ground of removability at 8 U.S.C. § 1227(a)(2)(E)(i) as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and did not define the phrase “a crime of child abuse, child neglect, or child abandonment.” In Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), however, the BIA held that the phrase encompassed child endangerment offenses committed with a mens rea of at least criminal negligence. In considering whether Soram was entitled to deference, the panel was guided by the Supreme Court’s decision in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), where the Court observed that the term “sexual abuse of a minor” was undefined and then looked to normal tools of statutory interpretation in concluding that the statute unambiguously forecloses the BIA’s interpretation of it.

Applying this approach, the panel concluded that deference was precluded at Chevron step one because the text of §1227(a)(2)(E)(i) unambiguously forecloses the BIA’s interpretation as encompassing negligent child endangerment offenses. First, the panel explained that contemporary legal dictionaries from the time of IIRIRA’s enactment indicate that child abuse, child neglect, and child

4 DIAZ-RODRIGUEZ V. GARLAND

abandonment were well-understood concepts with distinct meanings that do not encompass one-time negligent child endangerment offenses. Second, the panel explained that the statutory structure suggested that Congress deliberately omitted child endangerment from the list of offenses specified in § 1227(a)(2)(E)(i). Third, the panel explained that the general consensus drawn from state criminal codes confirms that the phrase does not encompass negligent child endangerment offenses. The panel noted that the fourth source consulted in Esquivel-Quintana, related federal criminal statutes, did not aid its analysis.

Because a violation of California Penal Code § 273a(a) can be committed with a mens rea of criminal negligence, the panel concluded that it is not a categorical match for “a crime of child abuse, child neglect, or child abandonment.” Accordingly, the panel concluded that Diaz-Rodriguez’s conviction under that statute did not render him removable under § 1227(a)(2)(E)(i).

Dissenting, Judge Callahan wrote that she was compelled to dissent for two reasons. First, she did not agree that the three-judge panel could disregard Menendez and Alvarez-Cerriteno. Second, Judge Callahan did not agree with the majority’s peculiar reading of the phrase as not encompassing a child endangerment offense committed with a mens rea of at least criminal negligence. Judge Callahan wrote that majority’s suggestion that § 1227(a)(2)(E)(i) is unambiguous is contrary to precedent and the unanimous opinions of the court’s sister circuits. Moreover, she wrote that the majority failed to recognize that the court’s task is limited to reviewing the agency’s interpretation for “reasonableness.” Instead, the majority proffered its own definition based primarily on selected dictionary definitions and its own research.

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

Who knows how this eventually will come out? But, what I can guarantee is until it is finally resolved, by the Supremes or otherwise, immigration practitioners and their clients will have a mess of inconsistency and bad decisions by EOIR on their hands.

Complicated issues involving criminal law come up all the time in EOIR “detention courts,” located in the Mayorkas/Garland “New American Gulag,” where many respondents are unrepresented or under-represented. How would an unrepresented respondent be able to prepare a “defense” like this? No way! The entire EOIR system suffers from some extreme constitutional problems that Garland has done nothing to address.

Having bad precedents like this in effect for a decade or more, almost always tilted toward DHS enforcement, results in many wrongful removals, as well as numerous remands and “redos” that help increase the astronomical 1.4 million case backlog! Having better judges on the BIA, real independent jurists with practical scholarly expertise, unafraid to interpret statutes and apply the law in favor of respondents when that is the “better view,” and to impose “best practices” on the Immigration Courts, is a necessary first step in addressing EOIR’s many legal and operational shortcomings.

It appears that Garland is disinterested in meaningful due process reforms and inserting real progressive judicial leadership into EOIR. The good news: With the vast majority of the immigration, human rights, and constitutional expertise and legal talent now in the private sector, and more talent coming out of law schools all the time, the NDPA stands a good chance of “litigating Garland’s failed EOIR to a standstill” over the next four years.

While that’s hardly the most desirable result, it would be infinitely better than the continuing due-process-denying “Clown Show” 🤡 that Garland currently runs at EOIR! Sometimes, you just have to take what the opposition gives you!

At what point will “powers that be” finally pay attention to the ongoing disaster at EOIR? When the backlog reaches 1.5 million? 2 million? 3 million? 4 million? 5 million? How many unjust and illegal removals will take place, and how many lives and futures irrevocably altered or ruined before this dysfunctional system finally reaches its “breaking point?”

🇺🇸Due Process Forever!

PWS

09-13-21

⚖️🧑🏽‍⚖️👨🏻‍⚖️👩‍⚖️👨🏾‍⚖️BIDEN TAPS DIVERSE GROUP OF PROGRESSIVES FOR ARTICLE III JUDGESHIPS, EVEN AS CAL DEM SENS DRAG FEET, & GARLAND CONTINUES TO RUN AMERICA’S MOST REGRESSIVE, DYSFUNCTIONAL, DISRUPTIVE, & NON-DIVERSE JUDICIARY @ EOIR! — How Are Progressives Going To “Climb The Mountain” When Garland Won’t Even “Pick The Low Hanging Fruit?”

Jennifer Bendery reports for HuffPost:

https://www.huffpost.com/entry/joe-biden-judicial-nominees-diverse_n_6138c48ee4b0eab0ada03532

President Joe Biden announced another historic slate of judicial nominees on Wednesday who would bring badly needed diversity to the nation’s federal courts.

His picks also begin to address a major vacancy problem on California’s courts.

Biden announced a total of eight new judicial nominees; three would fill seats on the U.S. Court of Appeals for the 9th Circuit and five would fill seats on U.S. district courts. All are up for lifetime appointments.

With Wednesday’s nominees, Biden has now nominated a total of 43 people to federal judgeships. Thanks in part to the Democrat-led Senate, he has been confirming judges faster than any president in more than 50 years by this point in their terms.

His latest nominees also reflect his push to bring more diversity to the federal bench, both professionally and demographically. The courts have long been represented by white, male judges with backgrounds as corporate attorneys or prosecutors. President Barack Obama helped to diversify the courts, adding historic numbers of women and LGBTQ judges, for example. But former President Donald Trump reversed that trend by overwhelmingly nominating straight, white, male, right-wing ideologues.

As a candidate, Biden vowed to bring a diversity of perspectives onto the courts, even promising to nominate a Black woman to the Supreme Court if and when a seat opens up there. He’s kept his word; so far, his court picks have been public defenders, civil rights lawyers, voting rights lawyers and historic firsts with Native American and Muslim American picks.

Wednesday’s nominees include people with backgrounds at legal civil rights organizations, too. Thomas worked for the NAACP Legal Defense and Educational Fund. Urias and Vera both worked for the Mexican American Legal Defense and Educational Fund.

California’s senators praised Biden for his six picks for courts located in their state.

“If confirmed, this slate of nominees will bring historic personal and professional diversity to California’s federal bench,” said Sen. Alex Padilla (D-Calif.). “Our justice system needs the experience and unique perspectives these public servants bring.”

But California needs far more nominees than Biden put forward Wednesday. The state still has a whopping 15 vacancies on its federal courts, in part because the state’s two U.S. senators aren’t moving quickly enough to recommend people to the White House to fill those seats.

Sen. Dianne Feinstein (D-Calif.) acknowledged there is more work to be done here.

“There are 15 additional vacancies on California’s district courts that need to be filled immediately and more expected next year,” Feinstein said. “I look forward to continuing to work with President Biden and Senator Padilla to ensure that the remaining vacancies on the federal courts in California are filled with well-qualified judicial candidates who reflect the makeup of the state.”

. . . .

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

Read the complete story at the link.

It’s an important step — but only a first step in the process of creating a diverse progressive Federal Judiciary, from top to bottom!

Meanwhile, a house built on a bad foundation is in trouble! In this case, that crumbling foundation is the nearly 600-judge U.S. Immigration Court at both the trial and appellate levels.

This “court” system, with nationwide jurisdiction and life or death authority over millions of lives and American families, is regressive, dysfunctional, and non-diverse, particularly when taking into account the composition of the American communities most directly affected by it’s too often defective, unprofessional, and biased decision making. That’s hardly surprising, because it was largely expanded, packed, weaponized, staffed, and directed in the “image” of Jeff Sessions, Billy Barr, and Gauleiter Stephen Miller!

Unlike Article III Judges, Immigration Judges currently are considered “DOJ Attorneys” who are selected outside the competitive Civil Service, have no “tenure” in their quasi-judicial positions, are subject to the control of the Attorney General, and can be reassigned, or in some cases terminated, at the will of the Attorney General. In simple terms, Garland could fix this badly broken system, but hasn’t done so.

The sorry condition of today’s Immigration Courts (“EOIR”) is particularly disgraceful when one considers the wide, diverse, progressive pool of potential judicial talent available in the private/NGO/sector who were either discouraged from applying under Trump or passed over in favor of lesser-qualified candidates perceived (whether accurately or not) to be more receptive and obedient to the overtly White Nationalist, xenophobic stance promoted by Trump’s DOJ.

To date, Garland has replaced zero (0) of the Trump judicial appointees. He has hired no notable progressive judges as inspirational leaders. He “promoted” one notable progressive to be among the several dozen “Assistant Chief Immigration Judges.” He outrageously appointed his first 27 Immigration Judges from among those “preselected” by Barr under defective procedures that have been universally condemned by progressive experts!

For the most part, without any progressive judicial leadership, precedents, or procedures, EOIR rambles on producing the same sloppy, haste-makes-waste, anti-immigrant, anti-asylum, racially and misogynistically tinged decisions that were the “hallmark” of the Trump-era EOIR.

If things don’t change quickly, I guarantee that American progressives will come to rue the squandered opportunity to radically reform EOIR and convert it into a model progressive judiciary that will showcase due-process-focused judging, innovation, and best judicial practices while saving lives and promoting racial justice, gender rights, and equal justice for all at the critical “retail level” of our justice system!

🇺🇸Due Process Forever!

PWS

09-10-21

🇺🇸🗽⚖️NDPA VIRTUAL OPPORTUNITY: Meet Rising Superstar 🌟 & Social Justice Advocate Denea Joseph, Current Ousley Social Justice Resident @ Beloit College — Friday, Sept. 17 @ 7:00 PM CDT — FREE Virtual Link Here!

Of interest? You can join virtually.

———- Forwarded message ———

From: Atiera Lauren Coleman <colemana@beloit.edu>

Date: Wed, Sep 8, 2021 at 3:10 PM

Subject: [EVENT] Ousley Residency: All Black Lives Matter: Black Immigrants and the Immigrants’ Rights Movement

To: <facstaff@lists.beloit.edu>

Ousley Residency Keynote Speaker

Denea Joseph

Friday, September 17, 7:00 PM – In-person & Virtual – (Add to Google Calendar)

BTYB – Student Success, Equity, and Community and the Weissberg Program in Human Rights & Social Justice

The Office of Student Success, Equity & Community Ousley Scholar In Residency honors the legacy of Grace Ousley, the first black woman to graduate from Beloit College. It is a junior scholar/activist/organizer/intellectual committed to the theory and practice of social justice. They should embody the “academic hustler” who fights for “social justice” in all aspects of their work. Support for the residency comes from the Weissberg Program in Human Rights and Social Justice and the Office of Student Success. Equity & Community.

Event Details

Date: Friday, September 17, 2021

Time: 7:00 PM -8:30 PM

How to attend

In-person – Weissberg Auditorium – Powerhouse

Virtual – Join Zoom Meeting https://beloit.zoom.us/j/81172664933

—

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

This promises to be a great program! And, the Ousley Residence Program is a fantastic contribution to educating and inspiring new generations of Americans about the many challenges still facing us in achieving social justice in our nation.

The abrogation of due process and dehumanization of people of color has, outrageously, become part of the dysfunctional U.S. Immigration Court System. The last Administration specifically encouraged and promoted this ugly, anti-democracy, phenomenon and then used it to spearhead an all-out assault on racial justice, gender equality, LGBTQ rights, religious tolerance, economic progress, voter rights, and humane progressive values throughout American society.

Unfortunately, many progressives have been slow to “connect the dots” and insist that meaningful social justice change start with fixing the racial and gender bias problems in our Immigration Courts, tribunals that are under the complete control of the Biden Administration!

For example, current Attorney General Merrick Garland rather incredibly claims to be standing up for women’s rights in Texas and defending voting rights for minorities while continuing to run misogynistic, regressive “Star Chambers” at EOIR, staffed with many judges hand-selected by Jeff Sessions and Billy Barr, and tossing vulnerable women refugees of color back across our Southern Border into harm’s way without any “process” at all, let alone “Due Process of Law.” Garland also continues to enable human rights abuses in the “New American Gulag” of DHS civil detention! We can see this process of dehumanization of the “other” before the law, called “Dred Scottification” by many of us, spreading throughout our legal system and being endorsed and “normalized” all the way up to the Supremes.

From the summary in the announcement above, it appears that Denea, based on her own inspiring life and achievements as a “Dreamer,” will help us to “connect the dots” between racial justice, immigrant justice, and equal justice for all. Immigrants’ Rights = Human Rights = Everyone’s Rights!

🇺🇸Due Process Forever!

PWS

09-09-21

⚔️🛡⚖️🗽👨🏻‍⚖️🧑🏽‍⚖️🇺🇸 ROUND TABLE AGAIN STEPS UP @ SUPREMES — Patel v. Garland: Issue = Judicial Review Of EOIR’s Non-Discretionary Decisions!

Here’s our amicus brief drafted by the pro bono “All-Star Team” of Richard W. Mark, Amer S. Ahmed, & Chris Jones @ Gibson, Dunn & Crutcher, LLP, NY:

1419000-1419434-20210907134938198_patel amicus brief

Our effort was featured in an article by Jennifer Doherty at Law360 for those with Law360 access.

More coverage here from Dan Kowalski over at LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/supreme-court-amicus-briefs-filed-in-patel-v-garland

“Due Process Forever!” Hmmm, where have I herd THAT before? Thanks, Dan, for all you do for the NDPA!

The American Immigration Council, the National Immigration Alliance, and the Law Professors, all representing a number of other organizations, also filed in behalf of the “good guys, truth, justice, and the American way,” in this case. The respondents are expertly represented by my friend and legendary immigration advocate Ira J. Kurzban, Esquire, of Kurzban Kurzban Tetzeli and Pratt PA.

Ira Kurzban ESQUIRE
Legendary American Immigration Lawyer

One could not imagine a group MORE in need of thorough, critical, independent Article III judicial review of its decisions than today’s dysfunctional EOIR! There, potentially fatal errors have been “institutionalized” and even “normalized” as just another “unavoidable” consequence of the anti-immigrant, “haste makes waste,” “culture” that constantly places churning out removal orders above due process, fundamental fairness, and best practices!

Ironically, doubling the number of Immigration Judges, eliminating expertise as the main qualification in judicial selections, and forcing yet more “gimmicks” down their throats has actually nearly tripled the case backlog to an astounding 1.4 million cases, without producing any quantifiable benefit for anyone!

Obviously, it’s high time for Garland to “reinvent” EOIR with progressive experts, many with private sector Immigration Court experience, as judges and leaders at both the appellate and the trial level! Who knows what wonders might result from an emphasis on quality, humanity, and getting decisions correct in the first instance? Progressives are used to creatively solving difficult problems without stepping on anyone’s rights or diminishing anyone’s humanity! Those skills are in disturbingly short supply at today’s failed and failing EOIR! And, they aren’t exactly DOJ’s “long suit,” either.

🇺🇸 Due Process Forever!

PWS

09-08-21

🤮👎🏽GREGG ABBOTT IS A MISOGYNIST MORON, A RACST VOTE SUPPRESSOR, & OTHER STUFF WE ALREADY KNEW FROM BESS LIVIN @ VANITY FAIR!

Bess Levin
Politics & Finance Writer
Vanity Fair

Levin Report: Dumbass Texas Governor Claims No-Exceptions Abortion Law Is Fine Because He’s Going to “Eliminate” Rape

View this email in your browser

If you’re a person who believes it’s literally no one’s business who gets an abortion other than that of the pregnant individual undergoing the procedure, you’ve likely been incandescent with rage since the Supreme Court’s conservative majority decided to allow Texas to proceed with an insane law that prohibits terminating pregnancies after six weeks, with no exceptions for rape or incest. That anger likely stems from not just the law itself but having to listen to the chorus of dumbass voices who’ve come out backing Texas for effectively banning people from obtaining an abortion, from Tucker Carlson, who opined that the law shows “democracy does still exist,” to California gubernatorial candidate Caitlyn Jenner, who ironically commented that she supports Texas’s right to choose its own laws.

Of course, another one of those voices is the Lone Star state governor Greg Abbott, who signed the bill into law in May, saying at the time, “Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion,” and that the Texas Legislature “worked together on a bipartisan basis to pass a bill that…ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.” (That both sides of the aisle supported the bill would be news to Texas Democrats, as just a single one of them voted for it.)

Asked on Tuesday why his state felt the need to “force a rape or incest victim to carry a pregnancy to term,” Abbott responded like only a person who really, really hates women can, claiming, “It doesn’t require that at all.” He added: “Because obviously it provides at least six weeks for a person to be able to get an abortion, so for one it doesn’t [require] that. That said, however, let’s make something very clear. Rape is a crime and Texas will work tirelessly to make sure that we eliminate all rapists from the streets of Texas by aggressively going out and arresting them and prosecuting them and getting them off the streets.”

There’s a lot to unpack here, so let’s start with the fact that Abbott is claiming that because the law allows for abortion up to six weeks, it’s not forcing anyone to do anything. As doctors, people who’ve been pregnant before, and people who’ve bothered to read a book on the subject before crafting legislation on it have noted, by the time a person misses her first period, she’s already roughly four weeks pregnant. That means that under Texas law, someone would have no more than two weeks, not six, to determine she’s pregnant and decide whether or not to get an abortion. Even in the case of people who are actively trying to get pregnant, that window can narrow even further for numerous reasons including if they have irregular cycles. Usually, then, one would make an appointment with a doctor to confirm the pregnancy, and as Abbott may or may not know, healthcare in America is not the greatest, so she may not be able to be seen for several weeks. And that hugely generous two weeks is not only a joke for many people actively trying to have a child, but for the majority of people who are not. “It is extremely possible and very common for people to get to the six-week mark and not know they are pregnant,” Jennifer Villavicencio, M.D., lead for equity transformation at the American College of Obstetricians and Gynecologists, told The New York Times. In other words, Abbott should fuck all the way off with his “obviously it provides at least six weeks for a person to be able to get an abortion.”

Then there’s the hilarious remark that he’s going to eliminate rape in Texas, so not allowing individuals to terminate pregnancies that result from heinous crimes is a moot point. Really, Abbott is going to make Texas rape-free? If he had that power, why didn’t he do it prior to enacting this law? The victims of the 14,824 reported rapes in his state in 2019, when he was four years into his first term, would probably love to know! (For those of you keeping up at home, that figure made Texas the No. 1 state for rape that year.)

Of course, Abbott is far from the first politician to say something ridiculously idiotic about abortion and rape. In fact, he joins a long line of assholes who’ve smugly offered their moronic two cents on the matter, an illustrious group that includes:

The Ohio state legislature, which introduced a bill in 2019 requiring doctors to “reimplant an ectopic pregnancy” into the uterus, or face charges of “abortion murder,” despite the fact that such a procedure is medically impossible;

Former Texas state representative Jodie Laubenberg, who claimed while in office that rape victims don’t need access to legal abortion, because they can get “cleaned out” with rape kits, which obviously is not at all how rape kits work;

Representative Michael Burgess, who somehow obtained a medical degree in 1977, and declared that male fetuses masturbate in utero—naturally, there is no evidence of this—, so abortions shouldn’t be allowed;

Former North Carolina state representative Henry Aldridge, who once said, “The facts show that people who are raped—who are truly raped—the juices don’t flow, the body functions don’t work, and they don’t get pregnant. Medical authorities agree that this is a rarity, if ever.” (Medical authorities do not agree with this);

Former congressman Todd Akin, who boldly declared on the campaign trail: “If it’s a legitimate rape, the female body has ways to try to shut that whole thing down.”

Welcome to the club, Greg! Can’t wait to hear you parse the nuances of putting $10,000 bounties on the heads of individuals trying to help people escape your barbaric law.

In other Abbott news…

When he’s not signing and defending disgraceful abortion bills, he’s disenfranchising millions of his constituents. Per Bloomberg:

Greg Abbott on Tuesday signed one of the nation’s most aggressive laws curbing access to the ballot, joining a wave of such restrictions enacted after former President Donald Trump’s false claim that the 2020 election was stolen. The legislature passed the measure last month after an exodus from the state by Democratic lawmakers during the first of two special sessions. After the walkout sputtered, Republican lawmakers passed the bill without delay.

Republicans have spent months raising doubts about the 2020 election, which experts say was one of the nation’s most secure. Now, supporters of new state laws say too many voters have lost faith in voting systems, and must be reassured.

“We must have trust and confidence in our elections,” Abbott said at a signing ceremony in Tyler, Texas. “The bill that I’m about to sign helps to achieve that goal. It ensures that every eligible voter will have the opportunity to vote.” Of course, that’s an interesting way to describe a law that makes it harder to vote, by, among other things, ending drive-thru voting, limiting mail-in voting, and endowing partisan poll watchers with more power. In a tweet, the American Civil Liberties Union wrote “This law is unconstitutional and anti-democratic. Texas—we’ll see you in court. Again.” Beto O’Rourke, the former Democratic U.S. representative from El Paso, wrote in a statement: “Governor Abbott is restricting the freedom to vote for millions of Texans. Instead of working on issues that actually matter, like protecting school kids from Covid or fixing our failing electrical grid, Abbott is focused on rigging our elections and implementing extreme, right-wing policies.”

. . . .

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

You can check out the rest of the always lively and entertaining “Levin Report” at the above link. Like their lost idol, Abbott & DeSantis are plumbing the absolute bottom of American politics and actually killing and irreparably harming their “constituents” as they do it. Undoubtedly, that will make them “heroes” in today’s existentially dangerous “anti-heroic, anti-democracy” GOP!

PWS

09-08-21

⚖️🗽🇺🇸👨🏻‍⚖️👩‍⚖️NEVER TOO LATE: 22 YEARS AGO, FIVE OF US DISSENTED FROM THE BIA’S “ROLLOVER” TO IMMIGRATION ENFORCEMENT IN THE “JOSEPH II” BOND CASE — Four Of Us Were “Exiled” For Our Views — Now, The 3rd Circuit Says We Were Right! — Gayle v. Warden!

Kangaroos — There was a time in the distant past when all BIA judges were not required to be members of the pro-immigration enforcement “mob!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License.

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca3-on-mandatory-detention-gayle-v-warden

CA3 on Mandatory Detention: Gayle v. Warden

Gayle v. Warden

“Under 8 U.S.C. § 1226(c), the Government must detain noncitizens who are removable because they committed certain specified offenses or have connections with terrorism, and it must hold them without bond pending their removal proceedings. This appeal asks us to decide what process is due when such detainees contend that they are not properly included within § 1226(c) and whether noncitizens who have substantial defenses to removal on the merits may be detained under § 1226(c). Because the District Court granted relief in the form of a class-wide injunction, we must also decide whether 8 U.S.C. § 1252(f)(1) permits class-wide injunctive relief. For the reasons set forth below, we agree with the District Court that § 1226(c) is constitutional even as applied to noncitizens who have substantial defenses to removal. But for those detainees who contend that they are not properly included within § 1226(c) and are therefore entitled to a hearing pursuant to In re Joseph, 22 I. & N. Dec. 799 (BIA 1999), we hold that the Government has the burden to establish the applicability of § 1226(c) by a preponderance of the evidence and that the Government must make available a contemporaneous record of the hearing, consisting of an audio recording, a transcript, or their functional equivalent. Because we also conclude that § 1252(f)(1) does not authorize class-wide injunctions, we will reverse the District Court’s order in part, affirm in part, and remand for the entry of appropriate relief.”

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

As as interesting footnote, like most of my colleagues at the Arlington Immigration Court, I always recorded bond hearings, long before this court ordered it as required by due process. One of the first things one of my colleagues told me when I arrived at Arlington was “record everything that happens in open court.” Recording protects everyone in the courtroom, including the judge!

It also helped our Judicial Law Clerks and interns “reconstruct” the bond record and understand our reasoning in the infrequent event that a “bond appeal” were filed. Otherwise, the “bond memorandum” would have to be based on the IJ’s notes and his or her recollection of what had transpired.

Talk about a defective system that should have been changed ages ago! But, that’s EOIR! And, it’s not going to improve without some major personnel changes and dynamic leadership that actually understands what happens in Immigration Court and is willing to think creatively, progressively, and change long-outdated practices and procedures, many of them in effect since EOIR was created in the early 1980s!

Here’s my favorite quote from Judge Krause’s opinion:

Having considered the standards urged by the Government and by Plaintiffs, we settle on one in between: To comport with due process, the Government must show by a preponderance of the evidence that the detainee is properly included within § 1226(c) as both a factual and a legal matter. See Addington, 441 U.S. at 423–24. It must show, in other words, that it is more likely than not both that the detainee in fact committed a relevant offense under § 1226(c) and that the offense falls within that provision as a matter of law. Cf. Joseph, 22 I. & N. Dec. at 809 (Schmidt, Chairman, dissenting) (contending that the Government must “demonstrate[] a likelihood of success on the merits of its charge” at the Joseph hearing).

Here’s a link to the full opinion, including my separate opinion, in Matter of Joseph, 22 I&N Dec. 799 (BIA 1999) (Joseph II):

https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3398.pdf

Here’s the full text of my concurring/dissenting opinion (very “compact,” if I do say so myself):

CONCURRING AND DISSENTING OPINION: Paul W. Schmidt, Chairman; in which Fred W. Vacca, Gustavo D. Villageliu, Lory D. Rosenberg, and John Guendelsberger, Board Members, joined

I respectfully concur in part and dissent in part.

I join entirely in the majority’s rejection of the Immigration and Naturalization Service’s appellate arguments and in the unanimous conclusion that, on this record, the Service is substantially unlikely to prevail on the merits of the aggravated felony charge. Therefore, I agree that the respondent is not properly included in the category of aliens subject to mandatory detention for bond or custody purposes.

However, I do not share the majority’s view that the proper standard in a mandatory detention case involving a lawful permanent resident alien is that the Service is “substantially unlikely to prevail” on its charge. Matter of Joseph, 22 I&N Dec. 3398, at 10 (BIA 1999). Rather, the standard in a case such as the one before us should be whether the Service has demonstrated a likelihood of success on the merits of its charge that the respondent is removable because of an aggravated felony.

Mandatory detention of a lawful permanent resident alien is a drastic step that implicates constitutionally-protected liberty interests. Where the lawful permanent resident respondent has made a colorable showing in cus- tody proceedings that he or she is not subject to mandatory detention, the Service should be required to show a likelihood of success on the merits of its charge to continue mandatory detention. To enable the Immigration Judge to make the necessary independent determination in such a case, the Service should provide evidence of the applicable state or federal law under which the respondent was convicted and whatever proof of conviction that is available at the time of the Immigration Judge’s inquiry.

The majority’s enunciated standard of “substantially unlikely to prevail” is inappropriately deferential to the Service, the prosecutor in this matter. Requiring the Service to demonstrate a likelihood of success on the merits of its charge would not unduly burden the Service and would give more appropriate weight to the liberty interests of the lawful permanent res- ident alien. Such a standard also would provide more “genuine life to the regulation that allows for an Immigration Judge’s reexamination of this issue,” as referenced by the majority. Matter of Joseph, supra, at 10.

The Service’s failure to establish a likelihood of success on the merits would not result in the release of a lawful permanent resident who poses a threat to society. Continued custody of such an alien would still be war- ranted under the discretionary criteria for detention.

In conclusion, mandatory detention should not be authorized where the Service has failed to demonstrate a likelihood of success on the merits of its charge. Consequently, while I am in complete agreement with the decision to release this lawful permanent resident alien, and I agree fully that the Service is substantially unlikely to prevail on the merits of this aggravated felony charge, I respectfully dissent from the majority’s enunciation of “substantially unlikely to prevail” as the standard to be applied in all future cases involving mandatory detention of lawful permanent resident aliens.

“Pushback” from appellate judges actually committed to the then-EOIR vision of “guaranteeing fairness and due process for all,” was essential! Once the “Ashcroft purge” “dumbed down” the BIA and discouraged dissent and intellectual accountability, the system precipitously tanked! It got so bad that it actually provoked harsh criticism and objections from Circuit Judges across the political/ideological spectrum.

Eventually the Bush II DOJ was forced to back off a few steps from their all-out assault on immigrants’ rights. But, the damage was done, and there were no meaningful attempts to restore balance and quasi-judicial independence at EOIR thereafter. Indeed, Ashcroft’s Bush-era successors blamed the Immigration Judges for the meltdown engineered by Ashcroft, while sweeping their own role in creating “disorder in the courts” under the carpet in the best bureaucratic tradition!

EOIR continued to languish under Obama before going into a complete “death spiral” under the Trump DOJ kakistocracy.

Despite unanimous recommendations from experts that he make progressive reform and major leadership and personnel changes at EOIR one of his highest priorities, AG Garland has allowed the mess and the fatal absence of progressive, due-process-focused, expert judges and best practices at EOIR fester.

Long-deposed progressive judges willing to speak up for due process and fundamental fairness, even in the face of a “go along to get along” culture at DOJ, are still making their voices heard, even decades after they were sent packing! It’s tragic that Garland is letting the opportunity to create a long-overdue and necessary independent progressive judiciary at EOIR slip through his fingers. Progressive Dems might “dream” of transforming the Article III Judiciary; but, it’s not going to happen while Dems are running a “regressive judiciary” at the “retail level” in the one potentially powerful judiciary they do completely control.

Sadly, vulnerable individuals, many of them women, children, and people of color, will continue to suffer the brunt of Garland’s indifferent approach to judicial justice at EOIR. Beyond that, however, his failure to transform EOIR into an independent progressive court system willing to stand up for constitutional due process, equal justice, racial equity, best judicial practices, and the rule of law undermines democracy and diminishes the rights of everyone in America!

🇺🇸Due Process Forever!

PWS

09-08-21

Amanda Holpuch reports for The Guardian:

Of course, Haiti clearly is not a safe place to return migrants:

David Shipler does a great job of exposing the hypocrisy and intellectual dishonesty of Mayorkas and other Biden Administration immigration officials.

🇺🇸Due Process Forever!

Related posts:

Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸Due Process Forever!

Related posts:

Attorney General Merrick B. Garland Announces Appointment of David Neal as Director of the Executive Office for Immigration Review

🇺🇸Due Process Forever!

Related posts:

Dan Kowalski reports for LexisNexis Immigration Community:

Demand better from Garland and the Biden Administration! This disgraceful, dysfunctional, deadly mess at EOIR is NOT OK!🤮👎🏽

🇺🇸Due Process Forever!

Related posts:

Igor Bobic reports for HuffPost:

🇺🇸Due Process Forever!

Related posts:

Arelis R. Hernández and Nick Miroff for WashPost:

🇺🇸Due Process Forever!

Related posts:

⚠️☹️ GARLAND REPORTEDLY WILL DISAPPOINT PROGRESSIVES AGAIN WITH SELECTION FOR EOIR DIRECTOR

By Paul Wickham Schmidt

Courtside Exclusive

September 17, 2021

🇺🇸Due Process Forever!

Related posts:

Here’s the decision in Huisha-Huisha v. Mayorkas:

🇺🇸Due Process Forever!

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Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸Due Process Forever!

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Diaz-Rodriguez v. Garland, 9th Cir., 09-10-21, published

Here’s the opinion:

🇺🇸Due Process Forever!

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Jennifer Bendery reports for HuffPost:

🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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Here’s our amicus brief drafted by the pro bono “All-Star Team” of Richard W. Mark, Amer S. Ahmed, & Chris Jones @ Gibson, Dunn & Crutcher, LLP, NY:

More coverage here from Dan Kowalski over at LexisNexis Immigration Community:

🇺🇸 Due Process Forever!

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Levin Report: Dumbass Texas Governor Claims No-Exceptions Abortion Law Is Fine Because He’s Going to “Eliminate” Rape

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🇺🇸Due Process Forever!

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