"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Today [April 2] at 1:15 in the afternoon the heart of a giant of jurisprudence stopped beating. He alludes to the lawyer defending human rights, civil rights and constitutional law, the great friend of Mexico and Latin American immigrants, lawyer Peter Schey. He was 77 years old.
Schey was born in the Republic of South Africa, on March 23, 1947. He came with his parents, who emigrated to the United States. Upon graduating from high school in 1966, he applied for and was admitted to pursue a bachelor’s degree in psychology at the University of California, Berkeley, where he graduated in 1970. Additionally, in 1973 he completed his studies in law school at the California Western School. of Law.
His career as a jurist began in 1973. He practiced law at the Legal Aid Society of San Diego, where he had legal representation of low-income immigrants, until 1978, when he moved to the City of Los Angeles, where he founded the National Immigration Law Center.
Desire for justice motivated him to move from San Diego to LA
The main reason that prompted him to leave the City of San Diego was related to the arrest of Mexican activist José Jacques Medina. He had been arrested and imprisoned by agents of the Federal Bureau of Investigation (FBI).
Due to his undocumented status, the FBI handed him over to the Department of Immigration and Naturalization (INS) to immediately deport him to Mexico. Jacques Medina’s wife, Rosario Moreno, traveled from Los Angeles to San Diego to ask Schey to assume the legal defense of her husband.
He immediately accepted and took on the defense with passion and professionalism, which would last for a dozen years until in 1989 or 1990 his case was closed because Jacques Medina requested and obtained his immigration regularization through the “Amnesty Law” of 1986. During that period, the defense stopped his deportation under consideration of the defendant’s right to asylum. He argued that if he were returned to Mexico his life was in danger.
Founded legal institution of historical significance
In 1980, Schey founded and became president and CEO of the Center for Human Rights and Constitutional Law. He remained at the head of this important institution for 44 years and 4 months.
In these four decades, Schey filed Class Action lawsuits in favor of the constitutional rights of millions of immigrants from various parts of the world, but especially Mexicans and Latin Americans. I will mention three examples:
1.- In 1994, the Californian political extreme right adopted a fascist, racist and cruel policy against undocumented immigrants and created Proposition 187, which was approved by a majority of the state electorate in November of that year. This resolution denied medical care, social services and education to people suspected of having entered California irregularly.
However, the day after its approval, this ordinance was stopped in court by a lawsuit led by Peter Schey and known as League of United Latin American Citizens v. Wilson. After a severe legal battle, this very important lawsuit prevented said proposal from being implemented, which meant a major offense to the migrant community. In July 1999, Democratic Governor Gray Davis reached an agreement with leaders of pro-immigrant organizations and his lawyers and gave up appealing the decision of the Ninth Circuit Court of Appeals that had declared it unconstitutional. And therefore, this disastrous Proposition was canceled without it ever being able to be implemented.
2.- Another legal case, known under the title Flores v. Reno established a minimum standard of quality of life for undocumented immigrant children detained in the United States and recognized the Center for Human Rights and Constitutional Law as the only nongovernmental organization authorized to certify that detention centers housing any undocumented minor met the agreed minimum standards and also established the prompt release of the minors and that they could be delivered to relatives residing in the United States as soon as possible.
3.- I cannot close this remembrance of Schey without mentioning the case known as Plyler v. Doe. Schey participated in this lawsuit and it was filed because in 1977 the State of Texas ordered that in the public school system, children who did not provide proof of being citizens of the United States would have to pay the school district, to which their school belonged, one thousand dollars. or would not be allowed access to the instruction.
In 1982, the US Supreme Court ruled that ‘a state cannot prevent the children of undocumented immigrants from attending public school.’
With these three examples, among many others that could be cited, it is clear that millions of undocumented girls and boys and workers must be eternally grateful to benefactor Peter Schey because thanks to his efforts in the courts, today they enjoy legal protections.
In short, thanks to his social education, his effort, persistence and tenacity as a general of immigration laws and constitutional law, as our great colleague Peter Schey undoubtedly was, countless immigrants can enjoy a decent life.
*Juan José Gutiérrez is executive director of the Full Rights Coalition for Immigrants based in Los Angeles.
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Needless to say, I butted heads with Peter a number of times during my tenure in the Office of General Counsel at the “Legacy INS” (1976-87).I always had the greatest respect for his legal talent, courage, dedication, and persistence! He will be missed! But, his contributions to the law and the organizations he founded live on.
Paulina Vera and Alberto Benítez joined Alexander Love, a former client of the Immigration Clinic at GW Law, for his naturalization ceremony—“the happy part of immigration cases,” in Vera’s words. (Contributed photo)
Comedies often end with a wedding, and there’s a marriage in this story, but it’s not a comedy. This is an immigration story, and it ends in a naturalization ceremony, with some painful, dramatic scenes along the way. It begins in the Soviet Union with a gay boy called Sasha, and ends in the United States with a gay man named Alexander. They’re the same person, with a lot of credit for that transformation due to students and faculty of the Immigration Clinic at GW Law.
Alexander Love, as he is now known, was born in Ukraine when it was still part of the Soviet Union. His family moved to suburban Moscow, where he grew up and was expected to become highly educated. As a young teen, he realized he is gay, but he came out only to a few trusted friends and, aged 18, began serving in the Soviet Army. After being discharged in 1991, just as the Soviet Union was breaking apart, he went back to school.
“I was artistic and the majority of my subjects were things like physics, chemistry and mathematics,” Love said. “The only classes I passed were English classes.” Following his passion for working with textiles, he quit school and began sewing clothes for himself and for friends who ordered garments from him. He also taught English.
In these years just after the fall of the Berlin Wall, the Soviet Union dissolved and Mikhail Gorbachev, then the Russian president, instituted major reforms. Gay bars and clubs opened (and have since closed) and Western values were embraced. Love befriended Americans living in Moscow and realized how different his life was from theirs. Though Russian society was more relaxed in this period, it could still be very difficult and even dangerous for LGTBQ individuals. In 1998, Love visited the United States for the first time, returning in 1999 and again in 2000, when he first came to Washington, D.C.
“I had been to Spain a few times, so I knew how different it was for gay people outside of Russia,” he said. Gay life at home, even in the more open climate at that time, was risky. “Verbal and physical harassment was always there. You could be stopped on the street or followed by a police car, mostly for the bribes. Sometimes they put some kind of powder in your car.” In taxis, on public transportation, even in gay clubs, he said, people were harassed just because they looked different.
Today, Love prefers not to dwell on the worst abuses he suffered. In 2001, he came to GW Law’s Immigration Clinic for help with his asylum application. Applicants fleeing persecution of LGBTQ people in their home countries need to prove past persecution or that they have a well-founded fear of persecution. Though ill treatment of LGBTQ individuals in Russia is well documented, Love’s application was denied.
Faculty and students in the Immigration Clinic didn’t give up. They assisted him in getting a work permit that allowed him to stay in the United States while they worked on his case. Because he was a clothing designer who had worked with singer Mariah Carey and other persons of note, he was approved for a work permit based on his special skills. But fate quickly intervened.
“Unfortunately,” Love said, “I was diagnosed with HIV, and at that time, you could not apply for a work visa if you had HIV.” (A year later, the law was changed.)
Years passed, and GW Law students came and went with the natural rhythm of matriculation and graduation, but professor Alberto M. Benítez, director of the Immigration Clinic, was a steady presence. So was the man Love said brought stability to his life, his boyfriend (now husband) Michael Love. When same-sex marriage was legalized in 2013, they had been together for eight years. Benítez told Alexander (whose last name then was Sozonov) that if he and Love were married, the clinic could work on obtaining a marriage-based adjustment to his request for permission to remain in America. The partners eagerly wed, but to get their marriage recognized as legitimate in the eyes of the immigration system, both men had to make many court appearances.
A high-stakes version of ‘The Newlywed Game’
Marriage to an American citizen did not automatically mean Love could be granted status as a permanent resident and issued a green card. Sydney Josephson, J.D. ’14, was one of the students who worked on his case. One of her significant contributions to Love’s case was filing a motion to get an approved marriage-based immigrant petition establishing that his union was made in good faith.
Sydney Josephson, J.D. ’14, is flanked by Alexander Love and Michael Love in April 2014 on the day of their interview in support of their marriage-based immigrant petition, which was approved soon after. (Contributed photo)
The process of gaining such recognition can be tricky, according to Josephson, who now practices immigration law with the Fragomen firm in Atlanta. “Sometimes they’ll put people in separate rooms,” she said, “and ask questions like, ‘What color is your fridge?’ One person will say white and the other person will say black. And immigration officials say, ‘This isn’t a good faith marriage. You don’t live together.’”
But Love’s application went smoothly. He and his husband did not go through interviews in separate rooms. They had been together for so long by then that there was little doubt about the nature of their marriage.
Some applicants see less happy results, Josephson said. “A colleague told me about a woman who was asked, ‘What does your husband wear to sleep in?’ She said, ‘Pajamas,’ and the man said, ‘I sleep in gym shorts and a T-shirt.’ And that was one of the reasons they were denied because the officer didn’t think they actually lived together. But I think someone who grew up in another country may think of sweatpants and T-shirt as pajamas.”
Working in immigration law can be extremely rewarding, according to Josephson, because it feels good to help people like Love.
“He’s an amazing person,” she said. “He has a beautiful relationship with Michael, and they’re wonderful people.”
Love was granted status as a permanent resident of the United States in 2016. He enjoys working as a textile librarian for the Washington Design Center.
“It’s a library, but instead of books you have tons of fabrics, trims, leathers and wallpapers,” Love said. “You have to know where everything is at and how to handle them. I’m very happy in this position.”
Clients from around the world
Alumna Paulina Vera, B.A. ’12, J.D. ’15, is a professorial lecturer in law and a supervising attorney of the Immigration Clinic. Since returning to GW seven years ago, she has supervised the students working on Love’s case and others.
“I actually was a student in the Immigration Clinic in my third year at GW Law,” Vera said. “I went to law school because I wanted to be an immigration attorney. I’m the daughter of two immigrants. My mom is from England; my dad, rest in peace, was from Peru. I grew up in Tucson, an hour away from the U.S.-Mexico border. So, immigration has always been a pretty big part of my personal life.”
The Immigration Clinic at GW Law started in 1979 and has helped countless people seek asylum or resist deportation. Clinic members have assisted victims of trafficking as well as DREAMers and youth covered by the Deferred Action on Childhood Arrivals (DACA) program. They have worked with clients from El Salvador, Ghana, Mozambique, Nigeria, Indonesia, China and elsewhere. Recently, they helped a returning client—a woman they successfully represented in her application for asylum in 2018—bring her four children to the United States from Honduras.
Benítez and Vera currently have a cert petition before the U.S. Supreme Court, asking it to review the decision of the 4th U.S. Circuit Court of Appeals in the case of Moisés Cruz Cruz, an undocumented Mexican man living in Virginia. During a routine traffic stop, a police officer asked Cruz his name. In a nervous moment, Cruz combined his own name with his brother’s name. Though he immediately corrected his mistake and wrote his correct name and date of birth on a piece of paper, the officer charged him with false identification, a misdemeanor. On the advice of a lawyer, Cruz entered a guilty plea, and as a result he is now facing deportation. Three of his children are U.S. citizens.
“To me,” Vera said, “this case is very indicative of the overarching immigration consequences that fairly minor criminal convictions can have. Are we going to separate a man from his family of five who has a partner who’s not from Mexico, so could not go back to Mexico with him, over something that stemmed from a traffic stop?”
Benítez said the Immigration Clinic staff unsuccessfully tried, through a different lawyer, to get Cruz’s guilty plea withdrawn. The case hinges on the question of whether Cruz committed a “crime involving moral turpitude,” which justifies deportation in immigration cases. Such crimes are typically defined as depraved acts involving child pornography, rape and other violent crimes such as murder.
“He did plead guilty, and he is in violation of the Virginia state code,” Benítez said. “We’re not disputing that. But is it an immigration violation? We hope that the Supreme Court agrees with us that it is not. State criminal law and federal immigration law are two different things. If the Supreme Court agrees with us, Moisés would be eligible to apply for—not necessarily get—a remedy that we call an immigration law cancellation of removal. That is for long-term residents of the United States who have no status, who establish ties to the United States and establish that they are good citizens.”
‘These folks are not criminals’
Growing up in Buffalo, New York, as the child of Mexican parents, Benítez never discussed immigration with them. His interest in immigration law was piqued when he was in college and learned that applications for asylum were processed with political rather than humanitarian concerns uppermost at play. He went to law school during the Reagan years and has taught at GW since 1996. After practicing immigration law for decades, Benítez said he knows at least one thing for sure.
“There is no border crisis,” he said. “These folks are not criminals. They do not bring disease. They are people trying to save themselves and save their kids. And the way that certain elements in our society demonize them is just plain wrong.”
There is never a shortage of clients at the Immigration Clinic, he said. On the contrary, they sometimes have to make wrenching decisions about which cases to take and which to decline. On average, he estimates that the clinic helps about 50 people per year, including the family members of clients. The clinic’s efforts on behalf of clients, Love among them, can stretch over several years.
“As long as the clients are prepared to continue fighting,” Benítez said, “we are prepared to continue fighting. The student attorneys that I’ve supervised, including Paulina, are the best. Whatever they lack in experience, they make up for in zeal, intelligence, professionalism and empathy.”
Love’s gratitude for the students who helped him remains undimmed.
“The students were the stars of my case,” he said. “I should frame their pictures. I’m thankful to all of them.”
The closing scene in Love’s immigration story takes place at his naturalization ceremony in 2020. Benítez and Vera were present to congratulate him on becoming a U.S. citizen.
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I was privileged to have the GW Law Clinic appear before me in the “Legacy” Arlington Immigration Court during my 13 year tenure there. Professor Alberto Benítez is a long-time friend, neighbor, and fellow dog walker! I’m also proud that Professor Paulina Vera is an alum of the Arlington Internship Program and a “charter member” of the New Due Process Army. Additionally, Attorney Sydney Josephson, JD-‘14, instrumental in this case, now practices with Fragomen, a firm where I was a partner from 1992 until my appointment as BIA Chair in 1995.
Congrats to the GW Clinic on 45 years of spectacular success, leadership in the legal profession, and many lives saved!
“On April 1, 2020, the Department of Justice (“the Department” or “DOJ”) published an interim final rule (“IFR”) with request for comments that amended its regulations relating to the organization of the Board of Immigration Appeals (“Board”) by adding two Board member positions, thereby expanding the Board to 23 members. This final rule responds to comments received and adds five additional Board member positions, thereby expanding the Board to 28 members. The final rule also clarifies that temporary Board members serve renewable terms of up to six months and that temporary Board members are appointed by the Attorney General. DATES: This rule is effective on [April 2, 2024].”
[Note: Applicants are encouraged to apply NOW on the theory that spillover from the applicant pool for the current openings here and here might be considered for the additional five slots.]
Daniel M. Kowalski
Editor-in-Chief
Bender’s Immigration Bulletin (LexisNexis)
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Ironically, particularly for those of us directly affected, the BIA had 23 authorized members a little over two decades ago!
Then, the infamous “Ashcroft purge” cut that number back to 12, citing bogus “efficiency grounds” to cover a scheme that ousted those BIA Judges who consistently stood up for due process, fundamental fairness, and migrants’ legal rights!
That sent the EOIR system into a tailspin which shook the Circuit Courts when almost immediately flooded with a tidal wave of deficient EOIR decisions, particularly relating to erroneous “adverse credibility rulings.”
The emasculated BIA, of course, rapidly proved too small to function in even a minimally competent manner. To “cover up” the adverse effects of Ashcroft’s political scheme, and to conceal the institutional failures of DOJ to protect individual rights of migrants, particularly those of color, Administrations of both parties resorted to the “gimmick” of quietly appointing “Temporary Board Members” from among BIA senior staff to keep the ship (sort of) afloat. Temporary Board Members were not allowed to vote at en banc conferences, had uncertain tenure, and had every incentive not to dissent or otherwise “rock the boat” if they wanted to compete for future “permanent” vacancies. (Although, arguably, the whole point of the Ashcroft purge was that all BIA judges were essentially “temporary” in the eyes of a GOP AG).
Over the decades following the purge, the DOJ gradually added permanent BIA Judge positions, without ever publicly acknowledging Ashcroft’s politicalscheme and its debilitating effects.
The clinic assisted M, a lawful permanent resident (“green card” holder) from Fiji who has lived in the United States with his family for the past 21 years. M had some minor brushes with the criminal justice system as a young adult, and DHS alleged that the government could deport M based on a 1999 conviction. M’s removal case was dismissed after the clinic submitted a brief on his behalf to immigration court arguing that M’s 1999 conviction could not lead to his deportation under Ninth Circuit case law.
Melinda Koster (’11) and Shira Levine(’11) moved to dismiss the deportation proceedings against M arguing that DHS failed to meet its burden of proof under the federal immigration laws. After extensive strategic thinking, legal research and consultation with their client, Melinda and Shira submitted a legal brief to the immigration court arguing that M’s 1999 conviction could not lead to his deportation under Ninth Circuit case law. The Immigration Judge agreed with Melinda and Shira’s reasoning and ruled that the government cannot deport M. This victory built on the success of Orion Danjuma (’10) and Jenny Kim (’11), who previously defeated DHS’s initial charge that M.A. was removable as an “aggravated felon,” a classification that would have resulted in almost certain deportation to Fiji.
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No possible way an unrepresented individual could have prevailed! It would have been a “slam dunk” for DHS.
Yet Article IIIs, Congress, the Administration all insist that due process doesn’t require representation like this! What total BS💩!
Pass Immigration 101? Understand “mixed motive” and how it should be used to protect, not reject? Willing to stand up for due process and the legal and human rights of migrants? Prepared to promote justice and resist the evil culture of “any reason to deny?” We need YOU on the BIA today! “Revolution by evolution” is a crock. We need an aggressive “Due Process Revolution” from within EOIR NOW! Public Domain
United States Court of Appeals For the First Circuit
No. 23-1443
AMGAD SAMIR HALIM KHALIL,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Howard, and Rikelman,
Circuit Judges.
Saher J. Macarius, with whom Audrey Botros and Law Offices of Saher J. Macarius LLC were on brief, for petitioner.
Yanal H. Yousef, Trial Attorney, Office of Immigration Litigation, with whom Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
Julian Bava, with whom Adriana Lafaille, Sabrineh Ardalan, Tiffany Lieu, American Civil Liberties Union Foundation of Massachusetts, Inc., and Harvard Immigration & Refugee Clinical Program, were on brief, for amici curiae.
March 29, 2024
RIKELMAN, Circuit Judge.
. . . .
We turn, then, to Khalil’s argument that the factual record compels the conclusion that religion was at least one central reason for his beating. We review the factual finding
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against Khalil on this issue under the substantial evidence standard. Pineda-Maldonado, 91 F.4th at 87.
Here, a reasonable adjudicator would be compelled to conclude that Khalil’s religion qualifies as a central reason for the beating. Khalil’s attackers demanded he convert, beat him when he refused to do so, demanded again that he convert, and beat him more intensely when he again refused. The attackers’ own statements show that, regardless of whatever else prompted the beating, Khalil would not have been harmed had he agreed to convert. See Sanchez-Vasquez v. Garland, 994 F.3d 40, 47 (1st Cir. 2021) (deeming perpetrators’ statements essential to the nexus determination); Ivanov v. Holder, 736 F.3d 5, 14-15 (1st Cir. 2013) (determining persecutors were driven by a religious motive that they “recognized and gave voice to” during their attack of the applicant); Singh v. Mukasey, 543 F.3d 1, 7 (1st Cir. 2008) (explaining that perpetrators’ statements “are a crucial factor” for determining the central reason for harm); cf. Esteban-Garcia v. Garland, 94 F.4th 186, 194 (1st Cir. 2024) (finding no nexus because persecutors “didn’t say anything” about the applicant’s protected ground).
The attackers’ demands that Khalil convert to another faith and their increased violence in response to his refusal to do so make this case unlike Sompotan v. Mukasey, 533 F.3d 63 (1st Cir. 2008), which the IJ relied on in finding that the beating was
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the result of a personal dispute only. In Sompotan, we held that the record did not compel the conclusion that those who robbed the petitioners and their restaurant while yelling “Chinese bastard, crazy Christian, crazy Chinese” were motivated by religious and racial animus rather than by a desire to rob because “[t]he fact that [robbers] would stoop to the level of using racial slurs is, unfortunately, not surprising.” 533 F.3d at 70. By contrast, the attackers here did not make just a passing reference to Khalil’s religion. Rather, they made religious demands on him during the attack and beat him more vigorously when he refused to cede to those demands.
The arguments the government offers as to why substantial evidence supports the agency’s no-nexus determination do not alter our conclusion. The government emphasizes that Khalil recounted his attackers’ demands that he convert only in his asylum interview and written declaration attached to his asylum application, but not in his testimony before the IJ. But in evaluating whether substantial evidence supports the agency’s conclusion, we are tasked with reviewing “the record as a whole.” Barnica-Lopez, 59 F.4th at 527. Further, at his hearing, Khalil described the beating exclusively during the government’s cross-examination, and the government strategically asked him only one question about what his attackers said during the beating: Did they reference the blood test results? The framing of the
– 17 –
government’s questions on cross-examination does not change our assessment of the record as a whole. The government also contends that, because Khalil testified that the imam had no issue with him until the imam found out about the blood test results, religion did not motivate the attack. But that argument ignores the attackers’ own words and actions.
For all these reasons, we find that the record compels the conclusion that Khalil’s religion played more than an incidental role in his beating. We therefore grant the petition for review as to Khalil’s asylum claim premised on mixed-motive persecution.5
. . . .
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Many congrats and much appreciation to the NDPA team involved in this litigation!👏🙏
Oh yeah, the BIA also screwed up the CAT analysis! 🤯
This is another classic example of deficient scholarship and an “any reason to deny culture” that Garland, inexplicably, has allowed to flourish in some parts of EOIR on his watch!
This is the REAL “immigration crisis” gripping America, and one that obviously could be solved with better-qualified judges and dynamic due-processed-focused leadership at EOIR!
“Revolution by evolution” is a meaningless piece of bureaucratic gobbledegook I sometimes heard during Dem Administrations to justify their often gutless, inept, and dilatory approach to due process at EOIR! What total poppycock! EOIR needs a dramatic “Due Process Revolution” from within! And, it needs it yesterday, with lives and the future of American justice on the line!
There’s an opportunity, open until April 12, 2024, to become a BIA Appellate Judge and start improving the trajectory of American justice at the “retail level!”
“Singh experienced multiple physical attacks and death threats over an eight-month period, from November of 2014 to June of 2015. No reasonable factfinder would conclude that Singh did not experience serious harm rising to the level of persecution. … For all these reasons we find that the record compels a finding that Singh suffered harm rising to the level of persecution. … [T]he BIA did not independently analyze relocation and determine that the government met its burden. Rather, the BIA expressly adopted the IJ’s reasons for finding that internal relocation was safe and reasonable. In doing so, the BIA adopted the IJ’s flawed relocation analysis, which did not afford Singh the presumption of past persecution or shift the burden to the government to prove that Singh can safely and reasonably relocate within India. … In sum, because the BIA erred in its relocation analysis, we grant Singh’s petition to review his claim for asylum and remand to the BIA for consideration in light of Singh v. Whitaker, 914 F.3d 654. … For the reasons set forth above, we GRANT Singh’s petition in part and REMAND to the BIA to consider (1) whether Singh is eligible for asylum because he suffered past persecution on account of statutorily protected grounds by the government or individuals whom the government was unable or unwilling to control; (2) if so, whether the DHS rebutted the presumption of a well-founded fear of future persecution; and (3) whether Singh is entitled to withholding of removal.”
“The agency entirely overlooked evidence material to the hardship determination in this case: evidence regarding Mendez’s serious back injury and its implications for his ability to support his qualifying relatives through work in El Salvador. … The BIA’s decision is VACATED and the case is REMANDED for further proceedings consistent with this order.”
H. Raymond Fasano, Esquire PHOTO: Super Lawyers Profile
—Daniel M. KowalskiEditor-in-ChiefBender’s Immigration Bulletin (LexisNexis)
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What if a brain surgeon or a heart surgeon were routinely engaging in “surgical malpractice?” Wouldn’t it be a cause for grave concern?🤯
Almost every week, sometimes multiple times, the BIA mishandles the basics in potential “life or death” cases. Yet, Garland somehow shrugs it off! This not only adds to the “dehumanization” of migrants (their lives don’t count), but also badly skews the statistical profile that undergirds much of the misguided immigration (non) dialogue.
If the anti-immigrant, anti-asylum, huge “over-denial” problem at EOIR were addressed with better qualified judges and adjudicators, it would become apparent that many more, probably a majority, of those caught up in the dysfunction at EOIR and the Asylum Office are qualified to remain in the U.S. in some status. And, proper positive precedents would guide practitioners, ICE Counsel, Immigration Judges, and Asylum Officers to correct results without protracted litigation that eventually burdens the Courts of Appeals, causes avoidable remands, fuels “Aimless Docket Reshuffling,” and contributes mightily to the mushrooming EOIR backlog!
As a result, these cases could be prepared, prioritized, granted, and individuals could get on with their lives and maximize their human potential to help our nation — just as generations before them have done including the ancestors of almost all Americans! How soon some of us forget!
The real, largely self-created, “immigration crisis,” is NOT insufficient “deterrence, detention, and cruelty” at the border! It’s the grotesque failure of all three branches of Government to insist on a fair, timely, well-staffed, professionally-managed, due-process-compliant adjudication, review, and resettlement system for asylum seekers and other immigrants. It’s also the ongoing attempt to “cover up” and minimize our Government’s mistreatment of asylum seekers, particularly those asserting their legal right to apply at our borders and in the interior regardless of status!
The racially-driven “targeting” of asylum seekers at the border is a ruse designed to deflect attention from the realities of human migration, what drives it, and the failure of governments across the board to come to grips with them and to fulfill their legal responsibilities to treat all persons fairly, humanely, and in accordance with correct interpretations and applications of the law!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Here’s additional commentary on Singh from my Round Table ⚖️⚔️ colleague “Sir Jeffrey” Chase:
The IJ was really determined to deny on this one. And I guess Vandyke had filled his quota of once in a lifetime for finding fault with the government, and thus had no choice but to dissent.
How would YOU like to face a system “determined to deny” with your life on the line? How would Garland like it?
Actually, under the generous “well-founded fear” standard applicable to asylum (Cardoza-Fonseca/Mogharrabi) and the authoritative guidance in the U.N. Handbook on adjudication, applicants like Singh who testify credibly are supposed to be given “the benefit of the doubt.” Garland has, quite improperly, like his immediate predecessors, allowed this key humanitarian legal principle to be mocked at EOIR! Instead, as cogently pointed out by “Sir Jeffrey,” here the IJ and the BIA actually went the “extra mile” to think of “any reason to deny” — even totally specious ones!
Also, half-baked, legally deficient “reasonably available internal relocation analysis”is a long-standing, chronic problem at EOIR, despite a regulation setting forth analytical factors that should be evaluated. Few, if any, such legitimate opportunities are “reasonably available” in most countries sending asylum applicants!
Moreover, once past persecution is established, the DHS has the burden of showing that there is a reasonably available internal relocation alternative, something that they almost never can prove by a preponderance of the evidence! Indeed, in my experience, the DHS almost never put in such evidence beyond rote citations to generalized language in DOS Country Reports!
The “judicial competency/bias” problems plaguing EOIR are large and well documented. Yet, Garland pretends like they don’t exist!
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
A federal appeals court late Tuesday ruled against Texas in its bitter clash with the federal government, deciding that a law allowing the state to arrest and deport migrants could not be implemented while the courts wrestled with the question of whether it is legal.
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, which has a reputation for conservative rulings, sided in its 2-to-1 decision with lawyers for the Biden administration who have argued that the law violates the U.S. Constitution and decades of legal precedent.
The panel’s majority opinion left in place an injunction imposed last month by a lower court in Austin, which found that the federal government was likely to succeed in its arguments against the law.
The Round Table of Former Immigration Judges Statement on EOIR’s Prior Restraint on NAIJ Speech
As former Immigration Judges and BIA Board Members we strongly protest the unconstitutional prior restraint imposed by the Executive Office for Immigration Review (EOIR) which effectively silences the officers of the National Association of Immigration Judges (NAIJ) and prohibits them from providing information or engaging in advocacy involving the complex workings of our nation’s Immigration Court system. We call for immediate reversal of this misguided policy.
In late February 2024 EOIR advised NAIJ officers that they could not speak publicly without obtaining advance permission through the agency’s “”SET” (Speaking Engagement Team) process, a requirement which was never imposed before. This is a cumbersome, multistep process which requires Immigration Judges to seek permission from their supervisors, the SET unit, and sometimes even EOIR’s Ethics team and the Office of Policy. It provides no time frames for decisions nor any opportunity for review of adverse determinations. It is a process which is wildly incompatible with the practical realities involved in responding to media or congressional inquiries which often involve extremely short deadlines, sometimes mere hours or days. Mandating union officers use this process is a thinly disguised gag order.
This step is a dramatic departure from a precedent of more than 50 years, since NAIJ was established in 1973 and was never previously mandated to seek prior approval for appearances or speech. It ignores the uncontroverted fact that NAIJ officials scrupulously provide disclaimers indicating that they are not speaking on behalf of EOIR [or its parent, the Department of Justice (DOJ)] or articulating any position except that held by NAIJ members. It unfairly penalizes NAIJ officers who risk personal discipline for insubordination should they fail to comply but are then hampered in the duties owed to their union members when they remain silent.
NAIJ has played a pivotal role fostering the independence and increased professionalism of the Immigration Courts. It brought home to Congress the crucial function that IJs serve in the deportation and removal process, not as prosecutors but rather as neutral arbiters. This resulted in a change in job title from Special Inquiry Officer to Immigration Judge in 1996, with a concomitant enhanced special pay rate intended to broaden and improve the candidate pool for new judges. NAIJ was a crucial player in efforts to protect the independence of the Immigration
Courts in 2002 by leading the successful effort to keep the court independent from the newly created Department of Homeland Security despite strong opposition to that end by the administration and DOJ. At that time, NAIJ argued presciently that the establishment of an Article I Court was the only enduring way to safeguard the sanctity of these courts which hear “death penalty cases in a traffic court setting.” While NAIJ did not succeed in achieving that lofty goal then, legislation to do just that is currently pending in Congress, largely due to NAIJ’s tireless advocacy and coalition building. NAIJ’s voice in the media often stands alone explaining the practical implications of the complex workings of our immigration removal laws since DOJ eschews comments despite the American standard in jurisprudence which emphasizes transparency in its tribunals. NAIJ is the only spokesperson for IJs in the field, who have the first-hand view of court operations. Without NAIJ speech, no views from these benches in the trenches will be heard.
Perhaps worst of all, this policy deprives the American public of the views of an important, informed group which can shed light on the realities of the implementation of immigration laws and policy at a time when public scrutiny is at an all-time high and accurate factual information scarce. Under this new policy, NAIJ officers cannot even speak at educational or professional seminars or other public events without DOJ approval and instruction as to precisely what they can or cannot say.
Government employees do not surrender their First Amendment rights when they take office. To the contrary, their duty to educate the public is heightened and their voice enhanced by their informed opinions and expertise.
We urge EOIR to restore NAIJ’s important voice and revoke this new policy. ###
The Round Table of Former Immigration Judges is composed of 56 former Immigration Judges and Appellate Immigration Judges of the Board of Immigration Appeals. We were appointed and served under both Republican and Democratic administrations. Members of our group have served in training and management roles at EOIR. Several of our members were officers and leaders in NAIJ and were instrumental in guiding NAIJ to accomplish the achievements described above. Combined we have decades of experience and unique expertise in the immigration court system and the field of immigration law.
For media inquiries, please contact Hon. Dana Leigh Marks (ret.) at danamarks@pobox.com or (415) 577-9831
3/25/24
Hon. Dana Leigh Marks U.S. Immigration Judge (Retired) San Francisco Immigration Court Past President, National Association of Immigration Judges, Member Round Table of Former Immigration JudgesKnightess of the Round Table
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Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
MINI-ESSAY: NAIJ IS AN ESSENTIAL FORCE FOR JUDICIAL INDEPENDENCE
By Judge (Ret.) Jeffrey S. Chase
March 25, 2024
In Matter of A-R-C-G-, the BIA at footnote 16 recognized that AILA, UNHCR, and CGRS in their amicus briefs had all argued that gender alone should be sufficient to constitute a valid PSG in the matter. However, the Board chickened out, stating that because they were recognizing the narrower group stipulated to by DHS, “we need not reach this issue.”
I think the real proof of the validity of gender per se as a PSG is found in what happened after Sessions issued Matter of A-B-. With A-R-C-G- vacated, IJs all around the country began issuing detailed written decisions recognizing gender plus nationality, and explaining why such group met all of the legal requirements. This was done by IJs with very different grant rates, across different circuits, and included at least one ACIJ. And remember, this was done under an AG that clearly didn’t want IJs to reach that conclusion.
Which allows me to segue into our next issue: a major reason that IJs felt empowered to issue those decisions that were clearly not to the AG’s liking was due to the decades of effort by the NAIJ on behalf of judicial independence. Our public statement, prepared by our esteemed colleague Judge Dana Marks with input from others in our group, criticizing EOIR’s recent gag order on NAIJ officers, who for the first time will now be required to request agency permission to speak publicly, is a powerful reminder of the essential role played by NAIJ in protecting judicial independence, promoting due process and fundamental fairness, and, ultimately, saving lives of those seeking justice from our nation.
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Thanks to Dana, “Sir Jeffrey,” and all our other wonderful Round Table colleagues for speaking out so forcefully in favor of due process for all and judicial independence!
“A caste system is an artificial construction, a fixed and embedded ranking of human value that sets the presumed supremacy of one group against the presumed inferiority of other groups.”
― Isabel Wilkerson, Caste: The Origins of Our Discontents
Last year, a dangerous and despotic Texas Governor Greg Abbott signed into law SB 4, heralding the legislation as a form of defense in his war against President Biden’s immigration policies that have apparently left Texas unsafe and vulnerable. Obviously, nothing could be further from the truth; in fact, Texas is privileged to be the second state in the union with the largest immigrant population that has contributed over $40 billion in federal and state taxes, with a spending power of more than $110 billion. According to a report by the Immigration Research Initiative and Every Texan:
Once provided a work permit, new immigrants earn an average of $20,000 in their first year, which increases to $29,000 by their fifth year living in Texas. […] For every 1,000 workers, immigrants and asylum seekers contribute $2.6 million to state and local taxes within their first year of eligibility. Far from a burden on Texas communities, newly arrived immigrants and asylum seekers are as essential to our state’s economy as they are to our families and communities.”
Abbott and the state have reaped from the contributions of immigrant families, regardless of immigration status, only to waste millions in taxpayer dollars to cruelly militarize the border against their own border communities and the children and families seeking refuge and safety. With SB 4, Abbott and Texas would make it a felony for any undocumented immigrant to enter the state and empower local law enforcement and state judges to arrest and deport undocumented immigrants.
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Read Beatriz’s complete article at the link.
The proposition, uncritically reported by many in media and mindlessly repeated by politicos of both parties, that effectively eliminating asylum at the border, thereby turning the ability to seek protection in the U.S. over to smugglers, cartels, and thugs, will “enhance security” is beyond preposterous! Obviously, it will do the exact opposite by improperly treating desperate individuals seeking legal protection from the U.S. the same as the small number of actual security threats who might seek to cross the border (at least some of whom are actually caught).
Just ask yourself the question that the media never presses on Abbott, DeSantis, Trump, GOP nativists, or their spineless Dem enablers: Why would a “real terrorist” spend weeks or months trying to get a “CBP One” appointment to be screened by CBP? Alternatively, why would such an individual risk the irregular border crossing and then turn themselves in to CBP for processing or wait weeks in filthy conditions to be processed by CBP? Answer: Obviously, they wouldn’t.
There are many easier ways for those smuggling or seeking to engage in criminal behavior to enter (think thousands of miles of lightly guarded Northern Border, false visas, entering legally at an airport under false pretenses, or concealing contraband in legitimate commerce — the way most fentanyl enters the U.S.). And, they are all “facilitated” by the USG’s insanely bad policy decision to concentrate “law enforcement” resources overwhelmingly on those who present no realistic threat and want only fair consideration of their legal claims! Sure it generates (largely misleading) “numbers,” but does little to actually enhance security.
Indeed, one might well suspect that the inordinate hoopla and intentionally exaggerated fears focused on asylum seekers is largely a “cover-up” and diversion from the Government’s poor record on dealing with the fentanyl crisis.
As I have repeatedly said, what if the Feds and states stopped disingenuously wasting unconscionable amounts resources on bogus enforcement and deterrence and instead invested in building a fair and timely asylum reception, screening, adjudication, and resettlement system that encouraged and rewarded those presenting themselves at ports of entry? That would make it easier for law enforcement to concentrate on those actually seeking to avoid our legal system (rather than inanely concentrating on those who merely want our legal system to fairly consider their claims)!
What would happen if the “mainstream media” actually fulfilled their professional, ethical, journalistic responsibilities to research, understand, and report honestly about the right to asylum, those seeking it, and those assisting them in presenting their claims to an intentionally hostile and dysfunctional system! What if the media stopped uncritically and irresponsibly reporting nativist propaganda, such as Abbott’s babbling, as “news,” and began concentrating on informing the public of the truth about asylum seekers, the legitimacy of many of their claims, and their great potential benefits to America!
The Executive Office for Immigration Review has announced an open vacancy for a Supervisory Immigration Judge (Assistant Chief Immigration Judge). This advertisement will close on April 4, 2024. If you are interested and want to learn more, click the following link to read about the position and apply: USAJOBS – Job Announcement.
Many thanks to my friend Kelly White, Associate Director- Learning & Development, Legal Access and Representation, Acacia Center for Justice for passing this along!
Hon. David L. Neal Director Executive Office For Immigration Review USDOJ PHOTO: C-SPAN
Sources tell Courtside “that David Neal is resigning as EOIR Director for health reasons, effective March 30. [Deputy Director] Mary Cheng will be Acting Director.”
As often happens at DOJ/EOIR, there has been no “official announcement.”
Neal was appointed by A.G. Merrick Garland on September 21, 2021. He also served EOIR in the following senior leadership positions
Chairman, BIA (2012-2019)
Vice Chair, BIA (2009-2012)
Chief Immigration Judge (2007-2009)
Acting Chief Immigration Judge (2006-2007)
Assistant Chief Immigration Judge (2005-2006)
U.S. Immigration Judge (2004-2005)
Special Counsel to Director
May peace, healing, and recovery be with David and his family in retirement.
Under Garland, the BIA’s approach to gender-based asylum has too often remained tethered to the past. Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Hon. “Sir Jeffrey” S. Chase reports to the Round Table⚔️🛡️:
Hi all: Another win to report, in a First Circuit case in which we filed a joint amicus brief with immigration law professors (and some in our group actually fit within both categories!).
However, the court declined to address our argument regarding the correct nexus standard for withholding claims (as opposed to asylum claims). The reason is that the court found that the BIA misstated one of the petitioner’s particular social groups, such that (according to the circuit court):
In sum, the BIA rejected a PSG of its own devising and not the social group Ferreira advanced. Its characterization substantively altered the meaning of Ferreira’s proffered PSG and amounts to legal error.
The court directed:
On remand, the BIA should carefully consider Ferreira’s gender-based PSG in light of our decisions in De Pena-Paniagua and Espinoza-Ochoa.
Both of those cited decisions were quite favorable to the petitioners.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
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Fear mongering and myth making by politicos of both parties, with the connivance of the media, deflect attention from the real problem: a dysfunctional U.S. asylum adjudication system that hugely and disingenuously over-rejects and under-protects, in addition to being too slow and unconstitutionally inconsistent. Thus, both parties intentionally skew the statistics against asylum seekers and feed racially-driven nativist “talking points” about the border!
The BIA/OIL claim that the gender-based psg is not recognizable is utterly preposterous!It took me fewer than 5 minutes of internet research to find this very recent Trinidad government report recognizing that gender-based violence is an endemic and well-documented problem that disproportionately affects women and girls in Trinidad. While the report sets forth an “aspirational multi-year plan” to address the problem (“willing to protect”), there is no indication that the plan is reasonably effective at present (“but unable to do so at present”).
Here is some other “choice commentary” from Round Table members:
“A win is a win–again ‘calling’ the BIA on doing the wrong thing!”
“Great job, Team!! Let’s keep up this winning streak.”
“Wow – great! As Paul would say, another bad Garland/BIA Fiasco. Making up a psg and then denying relief because of it. Funny if it were not so tragic!“
“Yes, especially when they are telling IJs they can’t even determine what PSG fits the facts of the case unless the Respondent gets it just right! Yet they can make up whatever they want and then say it doesn’t fit the facts or isn’t cognizable!”
“When we were at the International Judges conference that [Paul] organized at Georgetown, all of the international judges said that gender was a recognized psg in their countries—even the countries where women are discriminated against and/or persecuted!”
“Like most of you, I am at a loss to understand how gender, alone, does not meet every requirement of PSG. The BIA position on this is inexplicable, and IMO, at minimum, borders on frivolous.“
Roger that! Intentionally ignoring the obvious and failing in the duty to consistently recognize and prioritize many easy grants of asylum and other protection is the “elephant in the room” for the U.S. justice system!
No wonder spineless politicos, judges, and the media want to shift attention away from their shared responsibility for a glaringly unjust and inept asylum system to blame the hapless victims of their collective failure — whose lives and futures are on the line!
Bonnie Washuk reports for the Portland press Herald:
In the lobby of Portland’s Baxter Academy for Technology and Science, a chess board is on prominent display – for good reason.
Earlier this month, the school’s chess team – which didn’t even exist a few months ago – won the Maine State Scholastic Chess Championship against 15 of the state’s best teams, including Kennebunk High School.
Going into the championship, facing established high school chess teams, Baxter was not expected to win.
The player who clinched the big win for school’s six-member team is freshman João Vuvu-Nkanu Maviditi, a teen from Angola who last year was living at the Portland Expo when it served as temporary shelter for asylum seekers.
João Vuvu-Nkanu Maviditi, left, and Abdallah Ali ponder their next moves while playing a game of chess in class at Baxter Academy on March 12. The school’s chess team won the state championship last weekend for the first time. Gregory Rec/Staff Photographer Reprinted under license
. . . .
For Baxter to grab the championship win “is hugely impressive,” Cimato said in an email. “Baxter’s team held up extremely well under pressure and in sharp tactical positions. Their patience and calculation in those two end games were the difference.”
Baxter’s other chess team players are Jacob Kaiser, Abdallah Ali, Gibson Holloway and Sean Glass.
The team’s coach is Majur Juac, an internationally known chess master who once was one of the “Lost Boys” of Sudan who fled the civil war in their country and undertook long and dangerous treks to safety, spending years in refugee camps and eventually resettling in the United States.
Juac now lives in Falmouth and is on the faculty at Baxter, where he teaches chess.
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Baxter offered chess play after school, not just for its students but for other young people, including those who attend the downtown Boys and Girls Club.
When the games first started, “a few of those kids didn’t know how the pieces moved,” she said. “But Juac soon changed that.”
The school held tournaments in the summer, fall and winter. It’s hosting another next month and inviting in other schools.
In the fall, Baxter also launched a chess class taught by Juac, and 16 academy students signed up right away, Klein-Christie said.
She said the chess students are “really into it” and put their phones down and talk to one another as they play.
With a limited budget, it’s a stretch for a charter school to expand programs, Klein-Christie said.
“But it’s has been a worthwhile investment. Chess is a way of teaching them strategic planning, math skills. And it’s lovely for them to be building community.”
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Read Bonnie’s complete article at the link!
Immigrants get it done for their communities in ways big and small! The reality of migration is quite different from the cowardly bombast of Abbott, DeSantis, and other White Nationalists!
Folks like Abbott and the Feds are wasting incredible (and immoral) sums of money on misguided, cruel, counterproductive, dehumanizing, and ultimately futile enforcement, militarization, and imprisonment. They should be investing in a timely, fair, well-run asylum system, planned reception and resettlement, and community integration that would maximize the benefits for both the migrants and the U.S. communities they seek to enrich and help with their presence.
If only politicos of both parties would get beyond the racist myths, pandering to fear, encouraging “worst instincts,” and instead lead the way to a better future for America! 🇺🇸
A three-judge appeals panel will hear arguments on Wednesday in the power struggle between Texas and the federal government following a shock reversal that once again blocked a new state law allowing local police to arrest migrants at the border – just hours after the US supreme court had decided it could go ahead.
A federal appeals court late on Tuesday issued an order preventing Texas from implementing its plans to defy the Department of Justice and take the power for Texas law enforcement to arrest people suspected of entering the US illegally, which is normally the jurisdiction of the federal immigration authorities.
The White House had strongly criticized the supreme court on Tuesday afternoon after a ruling that would have allowed what it called a “harmful and unconstitutional” Texas immigration law to go into effect.
The supreme court order had rejected an emergency application from the Biden administration, which says the law is a clear violation of federal authority that would cause chaos.
The decision by the fifth US circuit court of appeals that followed on Tuesday night itself came just weeks after a panel on the same appeals court hearing the case on Wednesday had cleared the way for Texas to enforce the law, known as SB4, by putting a pause on a lower judge’s injunction.
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Read the complete article at the link.
The “ghosts of John Calhoun” are taking over our system! And, almost everyone’s focused on the legal minutiae and procedural gobbledygook, while ignoring the big picture, which should be a “no brainer” rejection of Texas’s existentially dangerous, yet essentially ham-handed, attempt at “nullification!”
As pointed out cogently by The Hope Border Institute (issued after the Supremes’ “copped out,” but prior to 5th Cir.’s reversal of its prior order, thus temporarily blocking SB 4) the racist, unconstitutional intent behind “SB 4” is a crystal clear “no brainer:”
THE HOPE BORDER INSTITUTE EXPRESSES GRAVE CONCERNS FOLLOWING SUPREME COURT’S DECISION TO LET SB4 ENTER INTO FORCE
EL PASO, TEXAS – The Supreme Court’s decision to let Texas enforce SB4 as it continues to be litigated is fundamentally wrong and will have grave consequences. Today’s ruling will permit the State of Texas to create an illegal parallel deportation system and ramp up its project to criminalize migration and now all people of color in the state.
SB4 will unequivocally create an environment of fear and distrust in local Texas communities, erode welcoming efforts, and legitimize racial profiling. The federal government must challenge Operation Lone Star once and for all.
In response to this decision and Texas’ targeting of migrant hospitality, all are invited this Thursday, March 21 at 6:30 pm MT to ‘Do Not Be Afraid’ March and Vigil for Human Dignity, a moment of community prayer and resistance. We will denounce Texas’ efforts to criminalize migration and humanitarian relief efforts, affirm our welcoming borderland community, remember those dying at the border, and demand humane solutions.
“The Supreme Court decision to let the unconstitutional and racist SB 4 enter into effect is gravely serious and a sign of the urgent need to advance policies that uphold human dignity,” said Dylan Corbett, Executive Director of the Hope Border Institute. “This legislation will do nothing but harm communities across Texas, and other states will follow suit. I call everyone to join us on the evening of Thursday, March 21 to march in resistance and reject this campaign of hate.”
