U.S. Department of Justice – Page 59 – immigrationcourtside.com

C-SPAN: PROFESSOR GEOFFREY HOFFMAN EXPLAINS FAILED SOUTHERN BORDER POLICIES & LOUSY JUDICIAL DECISIONS ENABLING THEM! — Watch Geoffrey Patiently Rebuff A Slew Of Uninformed Nativist “Call-Ins” — Truth Is, MPP & Illegal Use Of Title 42 Resulted In Over 6,300 Violent Incidents Of “rape, kidnapping, extortion, human trafficking and other assaults against migrants who were deported to Mexico or people who were prevented from seeking asylum at the U.S. border under Title 42!” — More “Inconvenient Truth” For Ill-Informed (& Rude) Nativists: Immigrants Of All Types, Including Undocumented, Are Keeping American Society & Our Economy Afloat & Are Our Hope For The Future!

Here’s the video of Geoffrey (approx. 40 minutes):

https://www.c-span.org/video/?514241-3/washington-journal-geoffrey-hoffman-discusses-biden-immigration-policy&live

Here’s the ugly truth about what two Administrations and some really bad Federal Judges have done to our vulnerable fellow humans seeking legal refuge at our borders:

https://www.nbcnews.com/news/latino/-live-fear-6000-migrants-mexico-violently-attacked-rcna1783

I refer to this as the “harsh reality that the nativist Ted Cruz ‘let ‘em enjoy the beaches in Cancun’ crowd doesn’t get!”

And, here’s the truth about migrants helping our nation thrive and who are a key component of our hopes for the future. Progressives and their allies must double down and act upon these truths to combat the type of ridiculous, dangerous, anti- American nativist lies and myths that were driving some of the misinformed callers, also pushed by the “insurrectionist wing” of the GOP:

https://urldefense.com/v3/__https://www.bushcenter.org/catalyst/state-of-the-american-dream/shi-undocumented-workers-rebuilding-america.html__;!!LkSTlj0I!RcKFXMY1liB3z78Z7LQwEgVggJK2JUSoGlwyO74myivmVNhy6BCynOqMpdYVknPMoicnXQ$

Significantly, this article came from the George W. Bush Institute, hardly a “left wing think tank.”

“Geoffrey’s 40 minutes” shows that there is, indeed, an imminent threat to American democracy, leadership, and future prosperity out there. But, it definitely does not come from migrants! A nation where about 98% of the population came from immigrant lineage can’t afford to turn our backs on today’s immigrants.

🇺🇸Due Process Forever!

PWS

08-28-21

@WASHPOST: CATHERINE RAMPELL SAYS IT WELL! — “Contrary to Trumpers’ claims, keeping our word to Afghan allies in trouble is wholly consistent with a philosophy that puts ‘America First.’ Indeed, it’s central to the entire operation.” — Getting Beyond Bogus Racist Nativism To A Robust, Honest, Expanded Legal Immigration System That Treats Refugees & Asylees Fairly, Humanely, & Generously — As Assets, Not “Threats” — Is Putting America First!

https://www.washingtonpost.com/opinions/2021/08/26/putting-america-first-would-require-keeping-our-word-afghan-allies/

Opinion by Catherine Rampell

August 26 at 5:56 PM ET

Trumpy nativists, posing as fiscal conservatives, want you to question whether the United States can afford to take in Afghan allies and refugees.

The better question is whether we can afford not to.

The Republican Party has cleaved in recent weeks over the issue of Afghan refugees, specifically those who served as military interpreters or otherwise aided U.S. efforts. On the one hand, Republican governors and lawmakers around the country have volunteered to resettle Afghan evacuees in their states. Likewise, a recent CBS News/YouGov poll found that bringing these allies to the United States is phenomenally popular, garnering support from 76 percent of Republican respondents. Influential conservative constituencies are invested in this issue, too, including veterans’ groups and faith leaders.

On the other hand, the Trump strain within the GOP has been fighting such magnanimous impulses with misinformation.

Xenophobic politicians and media personalities have been conspiracy-theorizing about the dangers of resettling Afghan allies here — even though we had previously entrusted these same Afghans with the lives of U.S. troops and granted them security clearances. And even though they go through additional extensive screening before being brought to our shores.

No matter; if you listen to Tucker Carlson and his ilk, you’ll hear that these Afghans are apparently part of a secret plot to replace White Americans, and that untamed Afghan hordes are going to rape your wife and daughter.

Often these demagogues try to disguise their racist objections to refugee resettlement (and immigration more broadly) as economic concerns. Their claim: that however heartbreaking the footage from the Kabul airport, compassion for Afghan refugees is a luxury Americans simply cannot afford.

Refugees are somehow responsible for existing housing shortages, proclaims Carlson. (This is demonstrably false; the reason we have too little affordable housing is primarily because people like Carlson oppose building more and denser housing.) More refugees would sponge up precious taxpayer dollars, according to Rep. Marjorie Taylor Greene (R-Ga.). And in general, refugees — like all immigrants — are a massive drain on the U.S. economy, alleges Stephen Miller.

This is nonsense.

. . . .

***********************
Read Catherine’s complete op-ed at the link!

Thanks, Catherine, for once again standing up to and speaking truth against disgraceful, neo-Nazi, nativist racists like Stephen Miller, Tucker Carlson, and Marjorie Taylor Greene!

As Catherine has observed on this and other occasions, in addition to all of the legal and moral reasons for welcoming them, refugees are good for the U.S. economy. See, e.g., https://immigrationcourtside.com/2018/09/04/forget-trumps-white-nationalist-lies-three-ways-immigrants-have-2-cms-refugees-are-good-for-ame/

By contrast, one might well ask what “value added” folks like Stephen Miller and his buddies, (Miller has largely sponged off of taxpayer funds while looking for ways to inflict misery on others and destroy America) bring to the table. None, that I can see!

Moreover, even beyond the undoubted value of robust refugee admissions, there is good reason to believe that large-scale migration presents our best opportunity for salvation and prosperity, rather than the “bogus threat” posited by Miller & Co.

As Deepak Bhargava and Ruth Milkman recently, and quite cogently, wrote in American Prospect:

. . . .

A “Statue of Liberty Plan” for the 21st century could make the United States the world’s most welcoming country for immigrants. Right now, the foreign-born share of the U.S. population lags behind that of Canada, Australia, and Switzerland. In order to surpass them, the United States would have to admit millions more people each year for a decade or longer. We currently admit immigrants to promote family integration, meet economic needs, respond to humanitarian crises, and increase the diversity of our population from historically underrepresented countries. Under this plan, we could dramatically expand admissions in all four categories and add a fifth category to recognize the claims of climate migrants. As a civic project of national renewal, with millions of people playing a role in welcoming new immigrants, such a policy could reweave frayed social bonds and create a healthier, outward-looking, multiracial national identity.

The politics of immigration, however, lag far behind the moral and economic logic of the case for a pro-immigration policy. The immigrant threat narrative has become so pervasive that many liberals have embraced it, if only because they hope to fend off threats from right-wing nationalists. President Obama not only deprioritized immigration reform in his first term but deported record numbers of immigrants, hoping that such a display of “toughness” might win support for legalization of the undocumented immigrants already here. Hillary Clinton advocated liberal immigration policies in her 2016 presidential campaign but later tacked toward restrictionism. Liberals and leftists across the global North, from Austria to France to the U.K., have offered similar concessions to nativism. But mimicking right-wing appeals is a losing gamble that only serves to legitimize the anti-immigrant agenda and its standard-bearers.

There are promising signs of potential for shifting the debate, however, if progressives lean in. Polling shows that Americans increasingly reject the immigrant threat narrative, largely due to Trump’s shameless cruelty. Last year, for the first time since Gallup began asking the question in 1965, more Americans supported increased levels of immigration than supported reduced levels. A telling barometer of how the sands are shifting is that President Biden’s proposed immigration bill is far to the left of what Obama proposed.

The work of shifting gears toward a more welcoming policy can begin right now by fully welcoming immigrants who already reside in our country. A crucial starting point would be to include a path to citizenship for essential workers, Dreamers, farmworkers, and Temporary Protected Status holders in the American Jobs Plan Congress is considering. This is not only a humane approach, but it also will stimulate economic growth and thus help finance other parts of the plan. A separate campaign by the Biden administration (not requiring congressional action) to simplify the naturalization process for nine million eligible green-card holders would help make the nation’s electorate more reflective of its population.

Getting the politics of immigration right isn’t just important for immigrants. Nativism, built upon the sturdy foundation of racism, remains among the most potent tools in the arsenal of right-wing authoritarians. Any program for economic equity or democracy will be fragile in the absence of a coherent immigration agenda. The antidote to authoritarianism is not to duck, cower, or imitate the nativists, but rather to make the case for opening the door to millions more immigrants.

If slavery and genocide were the country’s original sins, its occasional and often accidental genius has been to renew itself through periodic waves of immigration. Once we expose the immigration threat narrative as the Big Lie that it is, it becomes plain that immigration is not a problem to be solved but an opportunity and necessity to be embraced.

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/why-mass-immigration-is-the-key-to-american-renewal

This, of course, also casts doubt on the wisdom of our current, wasteful and ultimately ineffective, policy of illegally rejecting legal asylum applicants at our Southern Border, rather than attempting in good faith to fit as many as qualify under our current system, as properly and honestly administered (something that hasn’t happened in the past). Additionally wise leaders would be looking for ways to expand our legal immigration system to admit, temporarily or permanently, those whose presence would be mutually beneficial, even if they aren’t “refugees” within existing legal definitions. In this respect, the proposal to modernize our laws to admit climate migrants is compelling.

Remember, as stated above:

Getting the politics of immigration right isn’t just important for immigrants. Nativism, built upon the sturdy foundation of racism, remains among the most potent tools in the arsenal of right-wing authoritarians. Any program for economic equity or democracy will be fragile in the absence of a coherent immigration agenda. The antidote to authoritarianism is not to duck, cower, or imitate the nativists, but rather to make the case for opening the door to millions more immigrants.

NDPA members, keep listening to Catherine and the other voices of progressive wisdom, humanity, practicality, and tolerance. The key to the future is insuring that the “Stephen Millers of the world” never again get a chance to implement their vile, racist propaganda in the guise of “government policy.”

Happily, many Northern Virginians have listened to our “better angels.” Humanitarian aid and resettlement opportunities for Afghan refugees are pouring in, as shown by this report from our good friend Julie Carey @ NBC 4 news:

https://www.nbcwashington.com/news/local/northern-virginia-residents-offer-donations-shelter-to-afghan-refugees/2785567/

Julie Carey
NOVA Bureau Chief, NBC4 Washington
PHOTO: Twitter

The local couple interviewed by Julie emphasized the impressive “human dignity” of the Afghan refugees! (I also observed this during many years of hearing asylum cases in person at the Arlington Immigration Court.) Compare that with the lack thereof (not to mention absence of empathy and kindness) shown by the nativist naysayers!

🇺🇸Due Process Forever!

PWS

08-27-21

🤡🤮👎🏽BIA ERRORS, IRRATIONALITY, OIL’S FRIVOLOUS DEFENSE CONVERT “30 SECOND ADJUDICATION” FOR A COMPETENT JUDGE INTO TWO-YEAR ODESSY ENDING WITH VICTORY FOR RESPONDENT IN FIFTH CIRCUIT — Espinal-Lagos v. Garland (unpublished)

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

From Dan Kowalski at LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/unpub-ca5-u-visa-remand-victory-espinal-lagos-v-garland

Unpub. CA5 U Visa Remand Victory: i

Espinal-Lagos v. Garland

“Kevelin Danery Espinal-Lagos and her two minor sons were ordered removed to Honduras by an Immigration Judge. While their appeal was pending before the Board of Immigration Appeals, the petitioners filed derivative U visa applications with United States Citizenship and Immigration Services that, if granted, would allow them to move to reopen their removal proceedings. Accordingly, the petitioners filed a motion requesting that the Board remand their case so that they could seek a continuance from the Immigration Judge pending the resolution of their derivative U visa applications. The Board dismissed their appeal and denied their motion to remand, reasoning that their “U-visa eligibility and the steps being taken in pursuit of a U-visa could have been discussed at the hearing before the Immigration Judge entered a decision.” For the narrow ground articulated herein, we hold that the Board abused its discretion in its reason for denying the petitioners’ motion to remand. … Espinal-Lagos did not become prima facie “eligible” for a derivative U visa until her husband filed his U visa application with USCIS on July 6, 2018—several months after her hearing before the IJ on February 7, 2018. Indeed, during oral argument when asked, “When was Ms. Espinal-Lagos eligible for a U visa?”, the Government responded that she was “eligible when it’s filed”—“it” being Bethanco’s U visa application.1 The position the Government urges—that Espinal-Lagos should have disclosed to the IJ her potential future eligibility given the district attorney signature on her husband’s U visa certification— has no basis in the regulations. Therefore, the Board’s denial of Espinal-Lagos’s motion to remand was based on a legally erroneous interpretation of the governing regulations. Navarrete-Lopez, 919 F.3d at 953. The Board’s decision was also irrational because it required Espinal-Lagos to have presented information to the IJ that could not have been discovered or presented at that time. … Because the Board abused its discretion in its single reason for denying Espinal-Lagos’s motion to remand, we grant the petition for review and REMAND to the Board for proceedings consistent with this opinion.”

[Hats off to Vinesh Patel and Francisco Alvillar!]

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

Although this case is unpublished, it’s significant for these reasons:

The “super-conservative” 5th Circuit seldom reverses removal orders;
Granting the legally-required remand in this case would have been about a 30-second “adjudication” (tops) by a competent BIA appellate judge;
Instead of confessing error and asking for a remand, OIL defended this clearly wrong garbage, a likely violation of ethics, an abuse of the Circuit Court’s time, and dilatory action that took the Fifth Circuit two years to correct;
Why would a rational, ethical system even want to remove a family eligible for derivative U status, let along violate the law and make extra work to achieve an irrational, inhumane, and counterproductive result;
For Pete’s sake, this was an UNOPPOSED MOTION TO REMAND at the BIA, but incompetent judges, bad lawyering, and a vile anti-immigrant culture at DOJ created an unnecessary disaster;
As those of us who are actually familiar with the EOIR system know, mistakes like this are a daily, if not hourly, occurrence at today’s thoroughly dysfunctional EOIR! It’s just that relatively few individuals are fortunate to have the time, knowledge, and competent legal assistance to obtain justice at the Court of Appeals level.

NO, Judge Garland, as all outside experts have been telling you, the answer to largely unnecessary, self-created, out of control EOIR backlogs is NOT “dedicated dockets,” idiotic quotas, more mindless gimmicks, or even throwing more judges into an already out of control and dysfunctional system.

It starts, but does not end, with replacing the BIA and incompetent judges at EOIR with qualified progressive experts, bringing in dynamic progressive judicial leadership that solves problems rather than creates them, ending the anti-immigrant “culture of denial” at EOIR and DOJ generally, installing real, due-process-focused training and giving new progressive expert judges independence to establish and enforce quality decision-making, due process, and best practices!

Also, OIL needs a remake and some leadership from skilled, progressive immigration litigators committed to “speaking for justice,” using judicial time wisely, and making the system work rather than mindlessly assisting in the building of backlog.

Due process is a team effort! Sadly, after four years of enabling and defending the indefensible actions of the Trump fascist kakistocracy, there aren’t many folks out there at EOIR and DOJ generally who can “play this game.”

Casey Stengel — “Can’t anyone here play this game?” So far, the answer at Garland’s EOIR is a resounding “No!”
PHOTO: Rudi Reit
Creative Commons

🇺🇸Due Process Forever!

PWS

08-27-21

ADDENDUM:

Even as I was writing this, Dan Kowalski sent me yet another 5th Circuit BIA remand. This one was on “divisibility” and was the result of three years of litigation to correct the BIA’s unprofessional work. THAT’S what generates unnecessary backlogs! Efficiency comes from getting thing right in the first instance, particularly when proceedings should be terminated or relief granted.

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/unpub-ca5-divisibility-remand-victory-wali-v-garland#

Unpub. CA5 Divisibility Remand Victory: Wali v. Garland

Wali v. Garland

“Sajid Momin Wali, a native and citizen of Pakistan, became a lawful permanent resident in 2012. In 2017, he pleaded guilty in Texas state court to possession with intent to deliver a synthetic cannabinoid. As a result, he was charged as removable under 8 U.S.C. § 1227(a)(2)(B)(i) for having been convicted of a state-law crime relating to a controlled substance defined in the Controlled Substances Act, 21 U.S.C. § 802. Both the Immigration Judge and the Board of Immigration Appeals sustained that removability determination, concluding that although the Texas statute that formed the basis of Wali’s conviction was broader than the Controlled Substances Act, Wali was removable because the Texas statute under which he was convicted was divisible. After the BIA issued its decision, this court decided Alejos-Perez v. Garland, 991 F.3d 642 (5th Cir. 2021). Under Alejos-Perez, the BIA’s determination that Wali’s statute of conviction was divisible was error. Accordingly, we grant Wali’s petition for review, reverse the BIA’s order, and remand for the BIA to reconsider whether Texas Penalty Group 2-A is divisible in light of Alejos-Perez.”

[Hats off to Amber Gracia for fighting this case since 2018!]

Amber Garcia — Amber García, Esquire
Houston, TX
PHOTO: AVVO

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

Way to go, Amber! Welcome to the NDPA “star circle!” 🌟 Amber knows “crimigration!” Why doesn’t the BIA?

Why hasn’t Garland brought in better progressive judges? Why does he think the human lives and futures at stake in Immigration Court are expendable? ☠️👎🏽🤮

This is NOT, I repeat NOT, how an “expert court” functions! And, you can’t create and operate an expert court without experts. The “expertise” needed to fix this system is primarily on the outside. Garland needs to make long overdue personnel, leadership, structural, and attitude changes at EOIR! Lives are at stake, and they are “chargeable” to Garland!

🇺🇸DPF!

PWS

08-27-21

ADDENDUM #2

BIA screwups on the x’s and o’s of judicial decision-making continue to “burn up the internet.”

Here’s yet another unpublished rebuke from the 2d Cir. on EOIR’s “any reason to deny worst practices” sent in by my colleague “Sir Jeffrey” Chase of Round
Table ⚔️🛡fame:

We conclude that the BIA and IJ erred by relying on an alleged inconsistency between Tamrakar’s testimony before the IJ that the Maoists threatened him and tried to grab him before he escaped and Tamrakar’s statement during his credible fear interview that the Maoists left after threatening him to support its adverse credibility determination without first raising that discrepancy to Tamrakar. That inconsistency was not “self-evident,” Ming Shi Xue, 439 F.3d at 114, because, during the same credible fear interview, Tamrakar stated that the Maoists “tried to grab [him] but [he] ran away from them.” A.R. at 369. This statement was consistent with his testimony. Because the IJ and BIA “relied on the combined force of [three] inconsistencies,” Singh, 2021 WL 3176764, at *7, and did not provide Tamrakar the opportunity to explain one of them, we “cannot confidently predict whether the agency would adhere to [its] determination absent [its] error[].” Id. at *4. Further lessening our confidence, one of the other inconsistencies that the BIA and IJ relied on (whether Tamrakar’s friend accompanied him during the first incident or not) is closely analogous to one that our Court determined gave “no substantial support” to an adverse credibility finding on its own. Id. at *8 (noting that an inconsistency regarding whether a third party accompanied the petitioner to the police station after a key attack could be explained by differing recollections or another innocent explanation). Because we cannot confidently predict what the agency would do absent error, we vacate its decision.

https://www.ca2.uscourts.gov/decisions/isysquery/1f570ba8-e250-45d0-85fe-97520cd57537/11/doc/19-1943_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/1f570ba8-e250-45d0-85fe-97520cd57537/11/hilite/

Unfortunately, chronically sloppy work and wrongful denials have become so “routinized” at EOIR that the Circuits don’t even publish many of them any more! But, there are plenty of them out there!

They are just the “tip of the iceberg” of the systemic unfairness, racially-tinged bias, utter disdain for due process, lack of equal justice, unprofessionalism, glaring lack of expertise, and gross abuse of Government resources taking place in “Garland’s Star Chamber/Clown Courts!” Even one of these these is one too many!

The Human Rights advocacy community needs to organize and demand progressive changes from Garland, starting with long-overdue personnel and leadership changes at EOIR! How many more vulnerable individuals will be wrongfully denied or deported before a “responsible government official” (of which there seems to be as distinct shortage at Garland’s DOJ) pulls the plug 🔌 on this ongoing, intolerable human rights and racial justice farce going on at the DOJ!

🇺🇸DPF!

PWS

08-27-21

⚖️🗽👩‍⚖️ U.S. CIRCUIT JUDGE BEVERLY MARTIN 🌟 “OUTS” TRUMPY COLLEAGUES’ INTELLECTUAL DISHONESTY, BIA’S MALICIOUS INCOMPETENCE IN STINGING DISSENT FROM BOGUS ASYLUM DENIAL! — Garland’s Failure To “Pull Plug” On “Miller-Lite BIA” Continues To Cost Innocent Lives,☠️⚰️ Undermine American Justice, 🏴‍☠️ Outrage Human Rights Experts!🤮

https://media.ca11.uscourts.gov/opinions/pub/files/201913715.pdf

Murugan v. U.S. Atty Gen., 08-24-21, published

PANEL: MARTIN (Obama), NEWSOM (Trump), and BRANCH (Trump), Circuit Judges.

OPINION BY: Judge Branch

DISSENT: Judge Martin

KEY QUOTES FROM DISSENT:

The majority opinion gives no more consideration to Mr. Murugan’s claims

and individualized evidence than did the Board of Immigration Appeals and the Immigration Judge. That is to say not much consideration at all.

Mr. Murugan produced evidence that in October 2018, the Sri Lankan government changed drastically when the former president, who had been accused of authorizing war crimes and other human rights abuses against Tamils “blindsided” political observers and “sudden[ly]” returned as prime minister. Because Mr. Murugan is a member of the Tamil ethnic group, his attorney brought up these facts at the hearing before the IJ. But the IJ took no notice of this evidence, finding that Mr. Murugan’s country conditions evidence was outdated because it included materials related to the former president’s rule from 2014 to 2016. Mr. Murugan argued to the BIA that the IJ improperly disregarded these new facts, because they were relevant to what treatment the Tamils could expect from the newly returned prime minister. Even so, the BIA mechanically adopted the IJ’s decision that Mr. Murugan’s evidence was outdated. Mr. Murugan has now tried a third time, pointing out the significance of this evidence in his brief before this Court.

The majority opinion, like the IJ and the BIA, fails to engage with this

evidence. But I see it as substantial and highly probative evidence of a pattern or 19

USCA11 Case: 19-13715 Date Filed: 08/24/2021 Page: 20 of 34

practice of government persecution of Tamils. Because I believe Mr. Murugan met his burden of showing he had a well-founded fear of future persecution based on the Sri Lankan government’s practice of persecuting Tamils, I would grant him relief on this claim.

. . . .

When this Court is tasked with reviewing a decision of the BIA, we must

actually review it, albeit with deference. This majority opinion may condemn Mr. Murugan to extreme persecution in Sri Lanka because it failed to actually examine the evidence of recent political changes in that country. When a dictator with a well-documented history of persecuting an ethnic group returns to power, surely

33

USCA11 Case: 19-13715 Date Filed: 08/24/2021 Page: 34 of 34

our law does not require a member of that group wait to again experience persecution before he can claim asylum. Mr. Murugan has met his burden here. I respectfully dissent.

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

I encourage everyone to read Judge Martin’s complete dissent. By contrast, Judge Elizabeth Branch’s majority opinion is a vapid, disingenuous, piece of right-wing legal sophistry. As my colleague, Hon. “Sir Jeffrey” Chase observed, Branch was “Associate General Counsel for Rules and Legislation, U.S. Department of Homeland Security, in 2004-2005,” during the Bush II Administration.

Judge Martin will retire from the bench on September 30, 2021, thus giving President Biden a chance to appoint her replacement. So, this might be her last immigration opinion.

Judge Martin calls out her intellectually dishonest Trumpy colleagues and accurately characterizes BIA review as no review at all. (Actually, it’s worse than no review, because the BIA sometimes reverses correct IJ asylum grants and rewrites decisions to make it easier for OIL to defend bad denials.)

No matter how poorly they perform their judicial duties (the majority decision in this case certainly stands out as one of many low points in recent American jurisprudence) Trump’s and McConnell’s far righty Article IIIs enjoy lifetime sinecures.

But, EOIR “judges,” particularly after the last two decades of political interference with any semblance of “judicial independence,” enjoy no such exalted lifetime protection. As DOJ keeps pointing out, they are “mere Government attorneys” who can be reassigned to a wide range of attorney positions at the discretion of the Attorney General.

Thus Garland could, and should, remove and reassign poorly qualified judges and replace them with real, well-qualified expert progressive judges who understand asylum law, will fairly apply it, will issue some positive asylum precedents, and will control the “Asylum Deniers Club” operating in Immigration Courts throughout America. The dysfunction, institutionalized unfairness, and “worst practices,” are particularly acute after four years of poor judicial selections, a BIA packed with anti-asylum zealots, and defective training by biased, anti-asylum AGs under fatally flawed and discriminatory selection procedures

Judge Martin “gets it.” How come nobody on Team Garland does?

As we can see, from the Supremes to the “retail level” at the Immigration Courts, the consequences of poor right-wing judging fall most heavily on migrants, women, children, and people of color. Progressives could change that around at EOIR. But, Judge Garland doesn’t seem up to the job, as the opportunity for long overdue, systemic, life saving changes at EOIR continues to slip through his fingers!

But, I repeat myself, obviously to no avail.

🇺🇸Due Process Forever!

PWS

08-24-21

🤮👎🏽🏴‍☠️ SUPREMES’ GOP MAJORITY STUFFS BIDEN, TAKES OVER BORDER ENFORCEMENT, REINSTATES IMMORAL, ILLEGAL ASSAULT ON REFUGEES OF COLOR — MPP WILL CONTINUE TO VIOLATE HUMAN RIGHTS, CAUSE REFUGEE SUFFERING, DEATHS, AT BORDER & IN MEXICO!

By Robert Barnes @ WashPost

LToday at 9:28 p.m. EDT

The Supreme Court on Tuesday said the Biden administration must comply with a lower court’s ruling to reinstate President Donald Trump’s policy that required many asylum seekers to wait outside the United States for their cases to be decided.

The administration had asked the court to put on hold a federal judge’s order that the “Remain in Mexico” policy known as Migrant Protection Protocols (MPP) had to be immediately reimplemented. U.S. District Judge Matthew Kacsmaryk ruled earlier this month that the Biden administration did not provide an adequate reason for getting rid of the policy and that its procedures regarding asylum seekers who enter the country were unlawful.

Biden issues new immigration orders, while signaling cautious approach

Over the objections of the three liberal justices, the court’s conservative majority agreed that the administration had not done enough to justify changing the policy.

The administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious,” the court said in a short, unsigned order. In such emergency matters, the court often does not elaborate on its reasoning.

It said Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan would have granted the administration’s request. The three also gave no reason.

The action could be an ominous sign for the new administration. The court is considering a request that it dissolve the pandemic-related evictions moratorium implemented by the Centers for Disease Control and Prevention, about which the court’s most conservative justices have already expressed skepticism.

The court often showed deference to the Trump administration in such emergency matters, including when the MPP was first implemented.

. . . .

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

Read Robert’s full article at the link.

“Floaters” — “Floaters — How The World’s Richest Country Responds To Asylum Seekers” — Supremes’ GOP majority makes it clear that it considers asylum seekers of color as something less than human, whose rights and lives simply don’t matter! They are expendable, according to elite ivory tower righty jurists who don’t even give asylees lives a thought and condemn them without rationale. Not their kids, not anyone they can relate to.
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)

Not too surprising, given the Roberts Court’s fairly consistent disregard for human rights, the rule of law, the Due Process Clause of the Constitution, and ill-concealed contempt for racial justice and people of color! They had already gone “belly up” on MPP after it was properly blocked by lower Federal Courts during the Trump regime.

It’s going to be a long four years for American democracy, human rights, and individuals of color if the Dems can’t get it together, eliminate the filibuster, and enact some legislation while they are still in control of all three branches. But, it’s the Dems, so don’t count on much besides some hand-wringing and feckless rhetoric.

And to be fair, the Biden Administration’s continued lawless use of Title 42 to suspend the rule of law for many at the border compliments both the Trump regime’s xenophobic policies and the Supremes’ dissing of people of color. Dred Scott is still alive and kicking in 21st Century America, even as our nation grows more diverse.

🇺🇸Due Process Forever!

PWS

08-24-21

ADDENDUM:

As recently posted by Dean Kevin Johnson on ImmigrationProf Blog:

I received the following statement on the ruling by e-mail from Kate Melloy Goettel, Legal Director of Litigation at the American Immigration Council:

“Thousands of people have suffered the horrible consequences of the Migrant Protection Protocols. The Supreme Court has now upheld the Texas court’s decision and, instead of keeping MPP a stain in the history books, it will continue to be a present-day disaster.

“Forcing vulnerable families and children to wait in provisional camps in Mexico puts their lives at risk, while also making it nearly impossible for them to access the asylum process. The Biden administration can and must work to terminate the policy again immediately. Rather than turning away people fleeing harm, we should ensure people have a fair day in court.”

”Dred Scottification” at its worst.

Better Judges for a Better America!

DPF!

PWS

08-25-21

☠️⚰️👎🏽BIDEN ADMINISTRATION EMBRACES “NEW AMERICAN GULAG” — SUPREMES LIKELY TO HELP THEM OUT!🤮

https://lawprofessors.typepad.com/immigration/2021/08/supreme-court-to-review-bond-hearings-for-detained-immigrants.html

Dean Kevin Johnson posts on ImmigrationProf Blog:

Monday, August 23, 2021

Supreme Court To Review Bond Hearings For Detained Immigrants

By Immigration Prof

Share

The Supreme Court has decided a number of immigrant detention cases in recent years. Next Term brings another case. Alyssa Aquino for Law360 reports that the Court agreed today to review a Ninth Circuit decision that required bond hearings for immigrants who have been detained for more than six months with final removal orders. A split ruled that the Immigration and Nationality Act requires the federal government to hold bond hearings for detained migrants, and that the government bears the burden of proving that detainees are a flight risk or public safety threat.

The consolidated cases are Garland. v. Gonzalez and Tae D. Johnson v. Guzman Chavez. Amy Howe on SCOTUSBlog offers some background on the cases her.

KJ

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

Notice any difference between the Biden-Harris campaign rhetoric and actual performance once elected?

Never know when a “due process free zone” where individuals not charged with crimes can be detained forever without individualized bond determinations will be a handy hammer to have in your toolbox!

And, don’t forget those huge profits being raked in by the private detention industry, so beloved by DHS and politicos who receive contributions and can tout the “job creation” in the Gulag! Also, states and localities who rent out substandard prison space on questionable contracts love the Gulag!

Significantly, none of the lower court decisions the Biden Administration seeks to overturn requires the release of anyone! Nope! All the lower courts have done is to give the “civil prisoners” a right to plead their cases for release and to require the Government to provide an individualized rationale for continued indefinite detention! Sure sounds like simple due process to me!

Maybe, if Garland, Mayorkas, and the Supremes had a chance to spend a few “overnights in the Gulag” they would take the Fifth Amendment’s application to people of color in our nation and pleading for their lives at our borders more seriously!

🇺🇸Due Process Forever! The “New American Gulag,” Never!

PWS

08-24-21

⚖️🧑🏽‍⚖️ EOIR WATCH: GOOD NEWS FROM FALLS CHURCH — “PRACTICAL, PROGRESSIVE SCHOLAR” JUDGE ELIZABETH YOUNG (SF) PROMOTED TO ASSISTANT CHIEF IMMIGRATION JUDGE!

Hon. Elizabeth Young — Honorable Elizabeth Young
Assistant Chief Immigration Judge

My good friend Professor Alberto Benitez @ GW Immigration Clinic reports:

Friends,

I’m pleased to share the news that our friend, colleague, and alum Elizabeth L. Young was appointed an Assistant Chief Immigration Judge in the Executive Office for Immigration Review of the US Department of Justice. While at GW Judge Young was a student in my Immigration Law I course, a student-attorney in the Immigration Clinic, and later interim director of the Immigration Clinic during my leave. The press release link follows.

https://www.justice.gov/eoir/office-of-the-chief-immigration-judge-bios

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

Many congrats to Assistant Chief Judge Young. Significantly, Judge Young has a 72% asylum grant rate that has remained consistent even during the Trump-era meltdown of due process and institution of the “asylum denial culture” and anti-asylum precedents and procedures in the Immigration Courts. That assault on justice, humanity, and the rule of law drove a once higher than 50% nationwide grant rate down to an artificially-low and intentionally unfair 33%.

As all NDPA warriors know, asylum adjudication at EOIR over the past four years has become a deadly national disgrace, as yet largely unaddressed by Judge Garland, whose dozens of inexplicably lackluster appointments to the Immigration Courts to date have drawn ire and fire from human rights experts.

Assistant Chief Judge Young immediately becomes one of the few “beacons of due process, best practices, and proper asylum adjudication” in a leadership position at EOIR. Hopefully, there will be more to follow! Make no mistake, EOIR is in “meltdown mode.”

🇺🇸Congrats again, and Due Process Forever!

PWS

08-23-21

🧑🏽‍⚖️🇺🇸⚖️THE NATION: CHIEF U.S. DISTRICT JUDGE MIRANDA M. DU (D NV) COURAGEOUSLY & CORRECTLY EXPOSED THE RACISM, WHITE SUPREMACY BEHIND OUR IMMIGRATION LAWS — Expect Appellate Judges At Both Ends Of The Spectrum To Discredit & Suppress “Uncomfortable Truths!” — “A lone federal judge cannot stop 100 years of bigoted policies, but if you want to know what a truly progressive legal analysis looks like, Judge Du just spelled one out.“

Chief Judge Miranda M. Du
USDC Nevada
PHOTO: US Courts, Public Realm

https://www.thenation.com/article/society/immigration-crime-law/

ELIE MYSTAL, Justice Correspondent, writes in The Nation:

_{. . . .}

The opinion is thorough and well-reasoned, and Judge Du’s arguments are so obvious in retrospect that it’s kind of amazing they aren’t a staple of the immigration debate in this country. But this is where Judge Du’s background perhaps becomes important.

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Miranda Du was born in Ca Mau, Vietnam, in 1969. Her family fled the nation after the Vietnam War when she was 9, first to Malaysia, before eventually making its way to Alabama. She went to Berkeley for law school and was an employment lawyer in Nevada when Harry Reid and Barack Obama made her a federal district judge in 2011. I would imagine that Judge Du looks at the US immigration system with a fresh perspective, at least as compared to a person like me, who was born here and has been taught to just accept a background level of bigotry as an immutable fact of immigration law. One of the more striking parts of her opinion in this case is the section in which she calls out other courts for not doing this sooner. She essentially says that courts in other jurisdictions that have looked at Section 1326 have blindly accepted the government’s reasoning that the 1952 reauthorization cleansed the statute of its racial bias, without really looking at the 1952 Congress.

The opinion is brilliant, and I’m going to print it out so I’ll still have a copy of it when Justice Samuel Alito and the other conservatives on the Supreme Court reverse it and order Du’s opinion to be nuked from orbit. There is, practically speaking, no chance this ruling survives Supreme Court review. The high court will skate over the disparate impact analysis by saying that any person, regardless of race, who crosses the southern border will experience the same over-enforcement. Or the court will reverse the ruling of racist intent by finding, as other courts have, that the 1952 Congress did cleanse the statute of racism. Or they’ll find that the government does have a legitimate and permissible interest in discriminating against southern border crossers. After all, the Supreme Court found bigotry to be okay in Trump v. Hawaii, which upheld the Muslim ban, so finding a reason to uphold Section 1326 will be child’s play for the conservatives who like a little bigotry in their immigration rulings.

And that’s if the case even makes it to the Supreme Court, which it probably won’t. Judge Du’s ruling will first be appealed to the US Court of Appeals for the Ninth Circuit, and I could see it getting reversed there. It’s unlikely that other liberal judges will even want to open this can of worms. As I said, Judge Du relies on a disparate impact analysis, and I can think of at least three Supreme Court justices who might be in the mood to overturn disparate impact analysis altogether.

MORE FROM MYSTAL

WHY ARE WE STILL USING TRUMP’S BROKEN CENSUS?

Elie Mystal

A QUICK REMINDER THAT MANDATING VACCINES IS TOTALLY CONSTITUTIONAL

Elie Mystal

Judge Du is right about the bigotry inherent in our immigration laws, but conservatives like the bigotry and liberals will be afraid that trying to stop it will just piss off the conservatives.

But at least this opinion exists now. It’s out there, and future lawyers and judges can read it and maybe think differently about the core assumptions at the heart of our immigration system. A lone federal judge cannot stop 100 years of bigoted policies, but if you want to know what a truly progressive legal analysis looks like, Judge Du just spelled one out.

Now, President Biden just needs to read it and go out and nominate 100 judges who agree.

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

Read the full article at the link.

Biden could start by telling Garland to “redo” the U.S. Immigration Courts with well-qualified, expert, progressive judges in the “ Chief Judge Miranda Du” image!

Different backgrounds and new, “real life” perspectives! That’s why two decades of appointments of almost exclusively prosecutors and government bureaucrats, to the exclusion of human rights experts and advocates, to the Immigration Judiciary has produced such unfair and disastrous results for humanity and American law! Similar to other “blind spots” in American law, it has also created misery and cost innocent lives.

For the most part, judges of all philosophies hate being confronted with “ugly truths” about the system they are a part of. Consequently, the impetus to sweep historical truth and logical legal reasoning under the carpet when it produces uncomfortable, unpopular, and highly controversial results is overwhelming on all sides of the judicial spectrum, with the exception of a few “brave souls” like Chief Judge Du.

One of the most obvious and disgraceful of these “dodges,” is the abject failure of the Article IIIs to confront head on the clear Fifth Amendment unconstitutionality of the Executive’s “captive Immigration Courts,” particularly as currently staffed and still operating in “Miller Lite, White Nationalist mode.”

But, courageous decisions like this will be a part of our permanent legal history and come back to haunt today’s go along to get along Federal Judges, at all levels!

🇺🇸Due Process Forever!

PWS

08-23-21

🗽CUT THE RED TAPE, SAVE LIVES!

Thanks

https://www.sandiegouniontribune.com/opinion/commentary/story/2021-08-20/afghan-allies-treated-poorly

From the San Diego Union-Tribune:

Our allies were given a promise, and leaving them to die will be an unforgivable act of cowardice.

BY ODAY YOUSIF JR.

AUG. 20, 2021 4:54 PM PT

Yousif Jr., J.D., is a graduate of California Western School of Law and an American Constitution Society Next Generation Leader. He lives in Rancho San Diego.

Twenty years ago, the American military marched into Afghanistan with the declared intent of hunting down Osama bin Laden and ridding the country of Taliban extremists. Led by government leaders working in bad faith, thousands of civilians and soldiers were led to their deaths for a war now universally considered a failure. However, the most vulnerable population susceptible to death in Afghanistan are those Afghan allies who risked their lives to work for the foreign forces. They served as translators and services workers and any role that required the help of the local population. Now, with the Taliban back in power, they will be the first to face death.

When local Afghans agreed to work for coalition forces, they were made a promise: work for us and we will give you a visa to the U.S. They put their safety on the line working for the military forces but did so in order to give them and their families the chance for a better future outside Afghanistan. They worked anywhere service members went, from battlefields to bases. Often, they were the people who saved the lives of the soldiers they worked for. They were not just local Afghans but critical allies necessary for the ongoing mission in their country. At that point, we had nothing short of a deep-seated moral obligation to make sure they were protected.

. . . .

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

Read the complete op-ed at the link.

Amen! It’s not rocket 🚀 science! But, it does require expertise, guts, and a sense of urgency!

🇺🇸DPF!

PWS

08-23-21

☹️PROGRESSIVE ADVOCATES SENT TO BACK OF THE BUS 🚌 AGAIN AS BIDEN HUMAN RIGHTS MISTAKES THEY WARNED AGAINST COST LIVES, PROMOTE CHAOS, DIMINISH AMERICA’S REPUTATION!☠️⚰️

https://www.huffpost.com/entry/refugee-visas-afghanistan-withdrawal_n_61202499e4b029c152b4ff01

Kevin Robillard and Rowaida Abdelaziz report for HuffPost:

. . . .

There are currently more than 17,000 Afghan nationals — as well as an estimated 53,000 of their family members — awaiting visa approval through the Special Immigrant Visas (SIV) program. The U.S. brought over approximately 2,300 Afghans as part of the program from January to July, and another 2,000 over the last week.

The White House says it has cut the time necessary to approve SIV visas in half, and has issued more than 5,500 between April and July. But advocates say it needs to move faster.

“They seem to be afraid. They seem to be operating out of fear that being a bit bolder on issues with refugees, asylees and migrants will somehow cost them politically,” said former Housing Secretary Julian Castro, who made improving the country’s refugee system a central part of his 2020 presidential campaign. “This is an area where there’s growing disappointment and impatience ― and the stirrings of real anger ― towards the administration.”

. . . .

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

Read the full article at the link.

Julian Castro should have been given a major role by the Biden Administration on cleaning house and straightening out the human rights disaster and dysfunction left behind by Trump and Miller. But, at this point, would he really want the job?

🇺🇸DPF!

PWS

08-23-21

☠️ 9TH CIR. PELTS BIA WITH MORE ROTTEN TOMATOES 🍅! — Attempt To Deport Refugee Woman Entitled To Asylum, Withholding & CAT Thwarted! — BIA Wrongly Conflates Registered Nurse With Taxi Driver In Insane Misogynistic Bid To Return Mexicana Refugee To Death!⚰️👎🏽

Woman Tortured — “Taxi to Falls Church, anyone?”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

Plancarte Sauceda v. Garland, 9th Cir., 08-20-21, (Panel = Fletcher, Watford, Collins; Opinion = Fletcher)

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/20/19-73312.pdf

Court staff summary:

. . . .

Citing Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), the Board concluded that “female nurses” were not a cognizable “particular social group” because being a nurse, like being a taxi driver, is not an immutable characteristic. The panel held that the Board erred by simply citing Matter of Acosta, and failing to provide any meaningful analysis about the immutability of “female nurses.” The panel explained that in contrast to Acosta, Plancarte cannot avoid compulsion by the cartel simply by changing jobs, because even if she ceased employment as a nurse, she would still be a nurse, as she has received specialized medical training and has a professional license as a nurse. Moreover, the cartel targeted Plancarte precisely because of her specialized nursing skills, and threatened her and her family with torture and death to force her to use those skills to provide medical treatment to the cartel. Thus, regardless of whether she would continue to work as a licensed nurse, Plancarte lacks “the power to change” the immutable nursing characteristics—her medical knowledge and nursing skills—that make her important to the cartel. The panel therefore granted the petition with respect to Plancarte’s asylum and withholding of removal claims, and remanded for consideration of the other required characteristics of her proposed particular social group of “female nurses.”

Turning to Plancarte’s CAT claim, the panel concluded that the Board’s decision ignored uncontradicted record evidence showing both acquiescence and direct involvement by government officials. The panel held that substantial evidence therefore compelled the conclusion that there was official involvement and acquiescence in the cartel forcing Plancarte to provide medical treatment to cartel members. The panel granted the petition with respect to CAT, and remanded for a determination whether the likelihood of

4 PLANCARTE SAUCEDA V. GARLAND

torture if Plancarte were returned to Mexico is sufficient to warrant CAT relief.

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

Welcome to the “any reason to deny culture” at Garland’s EOIR!

In addition to the gross errors noted by the panel, I also think that there is a winning argument that being a registered nurse is “fundamental to identity” and therefore not something we should require an individual to change. Put it in today’s COVID context, for Pete’s sake!

Think that being a lawyer isn’t “fundamental” to the identity of a BIA Appellate Judge, an Immigration Judge, or an Article III Judge? Only when these “judges” are thinking of ways to deny protection to others do they engage in such obvious intellectual dishonesty and absurd reasoning!

This is the type of case that should have been a “quick grant” and a precedent for other grants of protection in a functioning justice system! Instead it’s an disaster! One that just happens to have been “outed” by a conscientious Court of Appeals panel — something no person of color can count on! It should be no mystery why this maliciously incompetent system creates huge, growing, out of control backlogs while squandering public resources and destroying lives!

Immigration Court — Failure
BIA — Failure
OIL — Failure
Garland — Failure

And this gang is going to be in charge of setting precedents and protecting due process and human rights of women and other asylum seekers under the Administration’s proposed “streamlined” asylum system? Absurd! It will be a death sentence for far too many refugees!

Congrats to Vallerye Allyn Anderson for saving a life here! Her outstanding performance and understanding of human rights were far superior to that of any “judge” or other DOJ lawyer involved in this case. So, why are the wrong judges still making life or death decisions at EOIR without competent “adult supervision” from qualified judges at the BIA with expertise in asylum law and the guts to apply it correctly, humanely, and generously? See, e.g., Cardoza-Fonseca, Mogharrabi, Kasinga. Just hope that Vallerye and others like her will pursue EOIR judgeships until the disgraceful, deadly, two-decade old “progressive expert lockout from the 21st Century Immigration Judiciary” finally ends and quality, courage, and due process prevail!

🇺🇸Due Process Forever! Failure to “clean house” of Miller Lite White Nationalism, it’s acolytes, go along to get along toady enablers, and to bring common sense, long overdue, obvious, recommended, available progressive human rights reforms and better judges and leaders to EOIR — An ongoing national disgrace!🤮

PWS

08-22-21

🇺🇸🗽⚖️NDPA ALERT: ELIMINATE THE CANCELLATION OF REMOVAL CAP! — Join Neela Nes’s Petition To Lift the Cap & Donate To Immigration Reform — Watch Neela’s Inspirational Video About “American Families In Limbo!” — End Injustice To Our Immigrant Communities!

Here’s the link to 1) sign Neela’s petition; 2) watch her very impressive video; and 3) donate (only if you choose, of course, not required to do 1 & 2):

https://www.change.org/p/alexandria-ocasio-cortez-remove-the-green-card-annual-cap

Neela is the daughter of my friend, Northern Virginia Immigration Lawyer Yousef Nesari, whose firm appears in the Arlington Immigration Court on a regular basis.

I’ve helped lawyers with some cancellation cases since retirement. The unnecessary delays, inconsistent decisions, and human toll caused by failure to do better is simply appalling. An obvious example is the Government’s dilatory actions and litigation that took the “stop time” rule unsuccessfully to the Supremes twice, rather than just dong things fairly, correctly, and according the law in the first instance. Talk about “low hanging fruit” among the ways the Biden Administration and Congress could “declutter the Immigraton Courts” while making America a better place by allowing more immigrants to reach their full potential!

🇺🇸🗽Good luck, Neera, and Due Process Forever!

PWS

08-21-21

⚖️COURTSIDE ANALYSIS: A “QUICKIE LOOK” INSIDE THE NUMBERS OF “DEDICATED DOCKET” — Sometimes The Numbers Don’t Tell You Much, Particularly When They Come From EOIR

By Paul Wickham Schmidt

Courtside Exclusive

August 20, 2021

TRAC IMMIGRATION just released the first statistical profile of the “Dedicated Asylum Docket” created by AG Garland and his subordinates without any coherent public explanation or plan in mind. Here they are:

https://trac.syr.edu/immigration/reports/657/

Stats wonks can check them out, and do their own analyses. As usual, given the haphazard nature and often questionable reliability of Government immigration statistics, it’s impossible to draw definitive conclusions.

But, here are a few things that jump out for me.

No criteria. How do you set up a program that deals with life or death decision-making without having transparent criteria about who gets placed on it and why? Easy, you work for Merrick Garland’s DOJ!

CBP in charge of dockets. Since there are no known criteria, and EOIR seems to have gone belly-up as usual, CBP, a law enforcement branch of DHS, gets to decide who is on this “Dedicated Docket.” CBP, of course, has a questionable record of competence and many issues including allegations of racism in its ranks swirling around it. It also has no known expertise or competence in establishing court dockets. Plus, letting a law enforcement agency with interests often adverse to asylum applicants, whose parent agency is a party to all Immigration Court proceedings, control dockets raises obvious ethical and conflict of interest issues.

Individuals, families, or cases? In its usual confusing manner, EOIR presents its stats in terms of individuals assigned to a docket. But, most (not necessarily all) “family units” are heard as a single “case.” According to TRAC, 4886 “individuals” on the Dedicated Docket (“DD”) represents 1,700 “family units.” That’s approximately “three individuals per family unit.” So, to get the approximate number of actual cases on a particular judge’s DD, we have to divide by three. Therefore, the number 600 assigned to a particular judge on the DD would actually represent 200 cases that require individual merits hearings. Got that? Confusing? Of course!

Who is Judge Francisco R. Pietro, and why? The short answer is that Judge Pietro is a 2019 appointee of GOP “Acting” AG Matt Whitaker, assigned to the NYC Docket and is too recent to have any “asylum grant/deny” statistics in the TRAC System. Remarkably, not to mention inexplicably, Judge Pietro has been assigned approximately 22% of the current Dedicated Docket (“DD”), or 1086 of the 4886 individuals covered by the report. (The rest of the DD is divided, very unequally, among 31 other IJs).

Dividing by 3, per above, the 1086 individuals assigned to Judge P represent about 395 “actual cases.”

Now, EOIR currently demands that it’s “Assembly Line Worker/Judges” complete 700 widgets (aka, cases) per year. It also expects judges assigned to the DD to strive to complete cases in 300 days, that is 10 months.

So, completing 395 asylum cases in 10 months would only leave Judge P another 2 months to complete the other 305 cases necessary for him to make his “quota.” Something has to give here, particularly if Judge P, like the rest of us, wants to take vacations and Federal Holidays off, prepare his cases, and occasionally gets sick. Who knows, he might even need some updated asylum training, although practical aspects like that don’t appear to be part of the equation at today’s “numbers driven” EOIR.

And, let’s not forget that Judge P is a recent appointment. Recent appointees are likely to be less efficient and less inclined to grant asylum than experienced judges, according to some studies.

Therefore, to meet his quotas, keep his bureaucratic “handlers” at DOJ happy, and hang onto his job, Judge P might be left with two choices:

Cut corners big time (a traditional EOIR “built to fail” approach) which means denying lots of due process; or
Reassign part of his docket to other judges, which leads to “Aimless Docket Shuffling” and building backlog.

Theoretically, Judge P could also choose to hear asylum cases with the care required to provide due process and quality decisions, without worrying about targets and quotas. This would be a more plausible option if he were actually an independent judicial official rather than the employee of a political agency.

Also, don’t kid yourself about the “operational consequences” of assigning Judge P and others to a DD! Even assuming that he had zero cases on his docket before being assigned to the DD (highly unlikely), his unavailability for the “general docket” will place extra burdens on his judicial colleagues that will almost certainly promote more Aimless Docket Reshuffling and more backlog. This, of course, will be true for most of the other 31 judges assigned to the DD, to differing degrees, depending on their DD caseload (which ranges from 1 to 712 “individuals” for the “other 31”). “Rearranging the deck chairs on the Titanic” like this actually prevents the crew from getting more passengers off in time to save lives.

Where are the lawyers coming from? The good news is that among the “top 10 DD Judges,” (comprising 79% of the DD), four are in NYC (2d Cir.), two in Newark (3d Cir.), one in San Diego (9th Cir.), one in SF (9th Cir.), one in LA (9th Cir.), and one in Boston (1st Cir.). There are active immigration bars, including pro bono bars, in all these locations. More over, none of these Circuits is notorious for systemically mistreating asylum seekers, and one, the 9th Cir., actually has some favorable case law, although probably less so since Trump’s far-right appointees have “rebalanced” that Circuit to the right.

Yet, it’s not clear from this statistical profile, nor has EOIR revealed, what, if any, agreements might be in place with local pro bono groups in these areas to achieve universal representation within a 300 day case-completion target, without disrupting the “regular” dockets. Nor is it shown how many of those 4886 individuals now on the DD already have lawyers. These are big unanswered questions.

Why Ecuador? Individuals from Ecuador make up over 40% of the DD, even though they comprise less than 10% of the “regular” (if there is such a thing) Immigration Court docket. Go figure!

How were these particular IJs and locations selected for the DD? No clue, which is disconcerting.

Other interesting information.

Here’s a chart that I constructed giving profiles of the “Top 10 DD Judges:”

DD Analysis

Overall, the majority (7) are recent GOP appointees from 2018-20. Of the seven with established asylum grant rates, two have grant rates significantly above the national average (Ling, Sagerman), two have grant rates significantly below the national average (Aina, Pope), and three (Auh, Sturia, Pressman) are relatively proximate to the national grant rate for the TRAC period (33.3). None sit within Circuits known for particular harshness to asylum seekers. None, to my limited knowledge, as far as stats are available, are members of the notorious “Asylum Deniers Club.”

So, we’ll see how it all plays out. Perhaps, over time, advocates will grow to “love and cherish” these DDs. More likely, they will eventually develop the same inconsistencies, inefficiencies, and maddening quirks that have accompanied almost all prior DOJ/EOIR “artificial gimmicks” intended to “speed up the treadmill” without meaningful advance input from experts of the private bar.

But, to me, it looks like the “same old” mismanaged, misguided, failing and flailing EOIR.

Should we expect better from the Biden Administration? You betcha! Will we get it? Probably not, without lots of litigation and hell-raising!

🇺🇸⚖️Due Process Forever!

PWS

08-19-21

🗽🇺🇸 NDPA SHINING SUPERSTAR 🌟 PROFESSOR KAREN MUSALO @ LA TIMES: It’s Not Rocket Science! 🚀 — The US Can & Must Take Afghan Refugees!

https://apple.news/ALA471VAmR0ytqQCJYalbIw

Op-Ed: The U.S. isn’t helpless. It could take in 150,000 Afghan refugees

Americans owe them more than sympathy.

By Karen Musalo

In the past week we have seen searing images and read heartbreaking media accounts of Afghans attempting to leave as the Taliban has rolled into Kabul and asserted control over the country. Americans owe vulnerable Afghans more than sympathy.

Among those at greatest risk are individuals who have worked with the U.S. or its NATO allies, women’s rights activists, human rights defenders, academics, journalists and members of ethnic minorities. Some have reported death threats by the Taliban. Many are desperately trying to destroy any information connecting them to their professional past, but as long as they remain in Afghanistan, they are at risk.

Given the history of U.S. involvement in Afghanistan, Americans have a duty not only to help such vulnerable Afghans but also to lead other nations to do the same.

Direct help from the U.S. is going to require a different approach than the government is taking now. The two routes to date — special immigrant visas and entry through a new priority category created in the refugee admission program — are woefully inadequate. For a start, they do nothing to respond to the immediate and desperate need for protection.

Special immigrant visas, created by Congress in 2009, provide a route to immigrate for Afghans who worked with the U.S. government. As has been widely reported, the application process is extremely onerous and seriously backlogged, conditions aggravated by chronic understaffing during the Trump administration. The International Rescue Committee recently reported that 300,000 Afghan civilians worked with the U.S. in some capacity, but only 16,000 special immigrant visas have been granted since 2014, with 18,000 “in the pipeline.”

Priority 2 of the refugee admission program is broader; it requires an employment relationship with the U.S. but includes work with U.S.-funded projects, nongovernmental organizations or the media. However, this possibility of protection comes with daunting logistical hurdles. Only Afghans outside their country can apply. This means that those at risk must first find a safe harbor nation and a means to support themselves during a processing period that can take months or even years, a situation that Secretary of State Antony J. Blinken has conceded would be “incredibly hard.”

Nothing in the law of the United States limits it to these two narrow options for responding to the urgent protection needs of the Afghan people. The Immigration and Nationality Act provides a mechanism to admit individuals “for urgent humanitarian reasons or significant public benefit,” a process referred to as “humanitarian parole.”

Administrations going back to the 1950s have used the parole authority generously to admit those fleeing persecution — Hungarians after the Soviet invasion of their country, Cubans after Fidel Castro took power, and Vietnamese after the fall of Saigon. Just this week a bipartisan group of senators sent a letter to the Biden administration urging it to evacuate Afghans at highest risk and to use humanitarian parole to quickly and efficiently allow their entry into the United States.

. . . .

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

Thanks, Karen.

Interesting that after decades of chest thumping, fist pumping, nation building, and nationalist rhetoric about our military prowess in Afghanistan and the power of “muscular militarized democracy,” the “right wing crew of cowards and defeatists” now asserts that we are overwhelmed, and even more absurdly existentially endangered, by the prospect of saving 150,000 Afghans from a life threatening situation we helped engineer! Gimmie a break!

I doubt that Afghan refugees are a greater “threat” to America than the Jan. 6 insurrectionists, the perpetrators of the “big lie,” and their supporters and enablers. Or, how about those refusing to save the lives of others and endangering all of us, including children, by not getting vaccinated or wearing a mask. No wonder these anti-American activists are so anxious to shift the focus to the world’s most vulnerable and defenseless, rather than take responsibility or be held accountable for their own noxious, life and democracy threatening actions! That’s what cowards do!

In addition to the statutory measures discussed by Karen above, the President has authority, after consultation with Congress, to admit refugees directly from a country in crisis. INA 101(a)(42)(B). Consequently, the oft heard statement that refugees must be in a “third country” to apply is simply not accurate.

Where there is a will, there is a way. But, some might well question the “will” of the Biden Administration here.

What is painfully obvious is that there isn’t enough urgency, boldness, or creativity in those tapped by the Administration to manage this crisis and actually save some lives! Maybe Alejandro Mayorkas and Lucas Guttentag need to pick up the phone and call Professor Musalo to get things back on track and save more lives, before it’s too late.

🇺🇸Due Process Forever!

PWS

08-21-21

⚖️JUSTICE ALITO GRANTS BRIEF STAY TO ALLOW FULL COURT TO VOTE ON MPP REINSTATEMENT!

https://www.reuters.com/world/us/us-faces-deadline-reinstate-remain-mexico-border-program-2021-08-20/

WASHINGTON, Aug 20 (Reuters) – A U.S. Supreme Court justice on Friday temporarily blocked a lower court ruling that would require Democratic President Joe Biden to reinstate a contentious immigration policy implemented by his Republican predecessor, Donald Trump.

The brief order by conservative Justice Samuel Alito puts the litigation on hold while the high court considers how to handle the Biden administration’s request seeking to impose a longer-term block on the judge’s ruling that would require the government to revive the Migrant Protection Protocols (MPP) program.

. . . .

******************
Read the complete report at the link.

Doesn’t mean the Court will grant the Gov’s application for stay pending appeal. It’s just that Justice Alito sees enough of an issue that he wants his colleague to have a chance to weigh in.

DPF

PWS

08-21-21

Here’s the video of Geoffrey (approx. 40 minutes):

🇺🇸Due Process Forever!

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🇺🇸Due Process Forever!

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From Dan Kowalski at LexisNexis Immigration Community:

🇺🇸Due Process Forever!

ADDENDUM:

Unpub. CA5 Divisibility Remand Victory: Wali v. Garland

Way to go, Amber! Welcome to the NDPA “star circle!” 🌟 Amber knows “crimigration!” Why doesn’t the BIA?

Why hasn’t Garland brought in better progressive judges? Why does he think the human lives and futures at stake in Immigration Court are expendable? ☠️👎🏽🤮

🇺🇸DPF!

ADDENDUM #2

BIA screwups on the x’s and o’s of judicial decision-making continue to “burn up the internet.”

🇺🇸DPF!

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🇺🇸Due Process Forever!

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By Robert Barnes @ WashPost

🇺🇸Due Process Forever!

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Dean Kevin Johnson posts on ImmigrationProf Blog:

🇺🇸Due Process Forever! The “New American Gulag,” Never!

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My good friend Professor Alberto Benitez @ GW Immigration Clinic reports:

🇺🇸Congrats again, and Due Process Forever!

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ELIE MYSTAL, Justice Correspondent, writes in The Nation:

🇺🇸Due Process Forever!

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From the San Diego Union-Tribune:

🇺🇸DPF!

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Kevin Robillard and Rowaida Abdelaziz report for HuffPost:

🇺🇸DPF!

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🇺🇸🗽Good luck, Neera, and Due Process Forever!

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By Paul Wickham Schmidt

Courtside Exclusive

August 20, 2021

🇺🇸⚖️Due Process Forever!

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🇺🇸Due Process Forever!

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