⚖️MAYORKAS ISSUES NEW PD GUIDELINES, EMPHASIZING SECURITY, SAFETY, PROFESSIONALISM, COMMON SENSE, FOCUSED USE OF RESOURCES!

S.pdfept. 30, 21 Enforcement Guidelines

Secretary Mayorkas Announces New Immigration Enforcement Priorities | Homeland Security

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

The emphasis on “border security” would make more sense if the Administration had restored the legal process for applying for asylum at ports of entry. Without such a process, how are individuals’ supposed to exercise their legal rights under domestic and international law to seek protection in the U.S.?

Expect these guidelines to be quickly challenged in Federal Courts by nativist GOP AGs. We’ll see how they fare!

🇺🇸Due Process Forever!

PWS

11-30-21

⚖️EOIR GUIDANCE ON ADMINISTRATIVE CLOSING — GOOD, BUT COULD HAVE BETTER! —Why Is A Non-Judge Director (“Senior Court Administrator”) Issuing Non-Binding “Guidance” That Should Have Been In BIA Precedents?

UY

https://www.justice.gov/eoir/book/file/1450351/download

PURPOSE:

OOD DM 22-03

Issued: Nov. 22, 2021 Effective: Immediately

ADMINISTRATIVE CLOSURE

Provide guidance to adjudicators on administrative closure in light of Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021)

David L. Neal, Director 8 C.F.R. § 1003.0(b)

On July 15, 2021, the Attorney General issued a precedential decision in Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021). In that decision, the Attorney General restored the authority of immigration judges and the Board of Immigration Appeals (Board) to administratively close cases. This memorandum discusses the practical implications of the Attorney General’s decision, particularly in light of the Executive Office for Immigration Review’s (EOIR) pending caseload.

II. Administrative Closure to Date

Administrative closure “is a docket management tool that is used to temporarily pause removal proceedings.” Matter of W-Y-U-, 27 I&N Dec. 17, 18 (BIA 2017). An immigration judge’s or appellate immigration judge’s administrative closure of a case “temporarily remove[s] [the] case from [the] Immigration Judge’s active calendar or from the Board’s docket.” Matter of Avetisyan, 25 I&N Dec. 688, 692 (BIA 2012). Administrative closure came into widespread use by EOIR adjudicators in the 1980s. Cases have been administratively closed for a variety of reasons over the years, and the Board has issued several decisions addressing when administrative closure is appropriate. The Board’s two most recent such decisions are Matter of Avetisyan and Matter of W-Y-U-, issued in 2012 and 2017, respectively.

In 2018, Attorney General Sessions issued Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). He held that, with limited exceptions, “immigration judges and the Board do not have the general authority” to administratively close cases. Matter of Castro-Tum, 27 I&N Dec. at 272. The Third, Fourth, Sixth, and Seventh Circuits subsequently ruled on challenges to Matter of Castro- Tum. A circuit split emerged, with the Third, Fourth, and Seventh Circuits holding that

OWNER:

AUTHORITY: CANCELLATION: None

I. Introduction

1

adjudicators have the general authority to administratively close cases,1 but with the Sixth Circuit holding that adjudicators have the authority to administratively close cases only in limited circumstances.2 In 2020, the Department of Justice (Department) promulgated a final rule that essentially codified Matter of Castro-Tum, restricting EOIR adjudicators’ ability to administratively close cases. See “Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure,” 85 Fed. Reg. 81588 (Dec. 16, 2020). However, this rule has been preliminarily enjoined nationwide. See Centro Legal de La Raza v. Exec. Office for Immigration Review, 524 F.Supp.3d 919 (N.D. Cal. Mar. 10, 2021).

In Matter of Cruz-Valdez, the Attorney General noted that Matter of Castro-Tum “departed from long-standing practice” by prohibiting administrative closure in the vast majority of circumstances. Matter of Cruz-Valdez, 28 I&N Dec. at 329. He also noted that the Department is “engaged in a reconsideration” of the enjoined 2020 rule. Id. Given these factors, the Attorney General, in Matter of Cruz-Valdez, “overrule[d] [Matter of Castro-Tum] in its entirety,” and he “restore[d] administrative closure” pending the current rulemaking. Id. He specified that, in deciding whether to administratively close cases pending the rulemaking, “except when a court of appeals has held otherwise, immigration judges and the Board should apply the standard for administrative closure set out in Avetisyan and W-Y-U-.” Id.

III. Administrative Closure after Matter of Cruz-Valdez

With administrative closure restored, EOIR adjudicators have the authority, under the Board’s case law, to administratively close a wide variety of cases. Going forward, pending the promulgation of a regulation addressing administrative closure, adjudicators must evaluate requests to administratively close cases under Matter of Avetisyan and Matter of W-Y-U-, as well under as the Board’s case law predating those decisions, to the extent that case law is consistent with those decisions. Adjudicators should accordingly familiarize themselves with Matter of Avetisyan, Matter of W-Y-U-, and the Board’s prior case law addressing administrative closure.

The restoration of administrative closure will assist EOIR adjudicators in managing their dockets given EOIR’s caseload. In Matter of Cruz-Valdez, the Attorney General recognized that administrative closure has in the past “served to facilitate the exercise of prosecutorial discretion, allowing government counsel to request that certain low-priority cases be removed from immigration judges’ active calendars or the Board’s docket, thereby allowing adjudicators to focus on higher-priority cases.” Matter of Cruz-Valdez, 28 I&N Dec. at 327. EOIR has finite resources and a daunting caseload. Given this reality, it is important that adjudicators focus on two categories of cases: those in which the Department of Homeland Security (DHS) deems the respondent to be an immigration enforcement priority,3 and those in which the respondent

1 See Arcos Sanchez v. Att’y Gen., 997 F.3d 113, 121-24 (3d Cir. 2021); Meza Morales v. Barr, 973 F.3d 656, 667 (7th Cir. 2020); Romero v. Barr, 937 F.3d 282, 292-94 (4th Cir. 2019).

2 Specifically, the Sixth Circuit initially held that the regulations do not delegate to immigration judges or the Board the general authority to administratively close cases. Hernandez-Serrano v. Barr, 981 F.3d 459, 466 (6th Cir. 2020) . But the Sixth Circuit later held that the regulations provide adjudicators “the authority for administrative closure” to allow respondents to apply with U.S. Citizenship and Immigration Services for provisional unlawful presence waivers. Garcia-DeLeon v. Garland, 999 F.3d 986, 991 (6th Cir. 2021).

3 Effective November 29, 2021, DHS’s immigration enforcement priorities are noncitizens DHS deems to pose risks to national security, public safety, and border security. See Memorandum from Alejandro N. Mayorkas, Secretary,

2

desires a full adjudication of his or her claim or claims. Being able to administratively close low priority cases will help adjudicators do this.

Under case law, where DHS requests that a case be administratively closed because a respondent is not an immigration enforcement priority, and the respondent does not object, the request should generally be granted and the case administratively closed. See Matter of Yewondwosen, 21 I&N Dec. 1025, 1026 (BIA 1997) (stating that the parties’ “agreement on an issue or proper course of action should, in most instances, be determinative”); Matter of Cruz-Valdez, 28 I&N Dec. at 327 (recognizing the role of administrative closure in “facilitat[ing] the exercise of prosecutorial discretion”).

Administrative closure is appropriate in many other situations as well. For example, it can be appropriate to administratively close a case to allow a respondent to file an application or petition with an agency other than EOIR. See Matter of Avetisyan, 25 I&N Dec. at 696 (identifying “the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings” as a factor for adjudicators “to weigh” in evaluating requests for administrative closure); 8 C.F.R. § 212.7(e)(4)(iii) (permitting a respondent in removal proceedings to file a Form I-601A, Application for Provisional Unlawful Presence Waiver, with U.S. Citizenship and Immigration Services where the “proceedings are administratively closed and have not yet been recalendared at the time of filing the application”). It can also be appropriate to administratively close a case while an agency adjudicates a previously filed application or petition, or, if a visa petition has been approved, while waiting for the visa to become available. See Matter of Avetisyan, 25 I&N Dec. at 696. It is generally appropriate to administratively close a case where a respondent has been granted temporary protected status. See Matter of Sosa Ventura, 25 I&N Dec. 391, 396 (BIA 2010). This is only a partial list; administrative closure can be appropriate in other situations not mentioned here. See Matter of Avetisyan, 25 I&N Dec. at 696 (stating that each request for administrative closure “must be evaluated under the totality of the circumstances of the particular case”).

Where a respondent requests administrative closure, whether in a scenario described above or another scenario where administrative closure is appropriate, and DHS does not object, the request should generally be granted and the case administratively closed. See Matter of Yewondwosen, 21 I&N Dec. at 1026. Where a request for administrative closure is opposed, “the primary consideration . . . is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” Matter of W-Y-U-, 27 I&N Dec. at 20. But adjudicators should bear in mind that “neither party has ‘absolute veto power over administrative closure requests.’” Id. at n. 5 (quoting Matter of Avetisyan, 25 I&N Dec. at 692).

Where at all possible, issues involving administrative closure should be resolved in advance of individual calendar hearings and not at hearings. Immigration judges are therefore encouraged to send scheduling orders to parties well before the hearing takes place, inquiring of DHS whether the respondent is an immigration enforcement priority, and otherwise soliciting the parties’ positions on administrative closure and other issues related to prosecutorial discretion. Where

Guidelines for the Enforcement of Civil Immigration Law (Sept. 30, 2021), available at https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf.

3

such issues have not been resolved in advance of an individual calendar hearing, the immigration judge should ask DHS counsel on the record at the beginning of the hearing whether the respondent is an immigration enforcement priority. Where DHS counsel responds that the respondent is not a priority, the immigration judge should further ask whether DHS intends to exercise some form of prosecutorial discretion in the case. As part of this colloquy, the 4 immigration judge should ask whether the parties want the case administratively closed.

IV. Conclusion

Administrative closure is a longstanding, and valuable, tool for EOIR adjudicators. As the Attorney General noted in Matter of Cruz-Valdez, the Department is currently engaged in rulemaking that will address adjudicators’ authority to administratively close cases. Pending that rulemaking, adjudicators have the authority under Matter of Cruz-Valdez to administratively close many cases before them when warranted under Board case law. Adjudicators should familiarize themselves with the situations in which administrative closure is appropriate, and adjudicators should be proactive in inquiring whether parties wish for cases to be 5 administratively closed. If you have any questions, please contact your supervisor.

4 There is one potential caveat to the guidance and instructions in this section. As noted above, the Attorney General stated that, pending the promulgation of a regulation addressing administrative closure, immigration judges and the Board should apply the Board’s case law “except when a court of appeals has held otherwise.” Matter of Cruz- Valdez, 28 I&N Dec. at 329. For cases arising in the Sixth Circuit, adjudicators must determine to what extent administrative closure is permitted given that court’s case law, and they must handle issues involving administrative closure accordingly. See Garcia-DeLeon, 999 F.3d 986; Hernandez-Serrano, 981 F.3d 459.

5 This memorandum does not create any legal rights or benefits for either party, and it does not mandate that a particular motion for administrative closure be granted or denied. In all cases, immigration judges and appellate immigration judges must exercise their independent judgment and discretion in adjudicating motions for administrative closure consistent with the law. See 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10(b).

4

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

WHAT SHOULD HAVE HAPPENED: Garland should have appointed the “Chen-Markowitz BIA” and empowered them to aggressively clean up the backlog, using administrative closing among others tools (such as referral to USCIS and more favorable precedents requiring the granting of relief in meritorious cases).

https://immigrationcourtside.com/2021/02/04/its-not-rocket-science-%f0%9f%9a%80-greg-chen-professor-peter-markowitz-can-cut-the-immigration-court-backlog-in-half-immediately-with-no-additional-resources-and/

In a properly functioning quasi-judicial system, this same “guidance” should have come in a series of BIA precedents that would require BIA panels and the Article IIIs to enforce compliance among recalcitrant Immigration Judges. That could be accompanied by unilateral action by the BIA to close “deadwood” cases on the appellate docket. Either party could request re-docketing, with a justification. (Hint: In my BIA career, we closed thousands of cases of this way and I could count on one hand the number of “redocketing” motions we received.) Also, in a better system, the Immigration Judges already would be aggressively taking these “common sense” steps.  Precedents properly applying asylum, withholding, and CAT would be cutting into the largely “manufactured” backlog.

WHAT ACTUALLY HAPPENED: Typical Dem timid approach.

Unless the BIA actually believes in this “guidance” (doubtful, given it’s current “packing” with notorious anti-immigrant judges by Sessions and Barr, unaddressed by Garland) and is willing to enforce it and incorporate it into precedents, it won’t achieve its objective of promoting fairness and efficiency! Nor will it significantly reduce the backlog. 

Perhaps the “rulemaking” referenced in Director Neal’s memo will solve the problem. But, EOIR’s history of completing such rulemaking, particularly in Dem Administrations, has been less than stellar. See, e.g., Gender-Based Asylum Regs (3 Dem Administrations, 0 Regs); Ineffective Assistance of Counsel Regs (2 Dem Administrations, 0 Regs). 

One problem: Dem Administrations often feel compelled to engage in false “dialogue,” look for an unachievable “consensus,” and pay attention to public comments; GOP Administrations simply plow ahead with their preconceived agenda without regard to expert input, public opinion, or empirical data. 

Consequently, although Dems have failed over more than two decades to finalize final gender-based asylum regulations, Stephen Miller was able to publish outrageous final regulations eliminating more than two decades of gender-based case law progress in a few months. Fortunately, those regs were promptly enjoined!

Over the past two decades, the GOP has radically “weaponized” EOIR as an enforcement tool. Dems have pretended not to notice and have squandered at least nine years of basically “unrestricted” opportunities to restore some semblance of due process, sanity, and humanity @ EOIR! As my friend Karen Musalo said in her recent LA Times op-ed, “actions speak louder than words.” 

EOIR’s latest “actions,” while better than nothing, are unnecessarily ineffective.This is supposed to be a “court system,” not a bureaucratic “agency,” run by “policy directives” and a top-heavy, bloated bureaucracy with fancy-titled “supervisors” and superfluous “program managers.”

Until we get an Attorney General who considers migrants to be persons (humans), views immigrant justice as important, understands what a court is, how it operates, and has the guts to install the practical progressive experts who can make it happen, EOIR will continue to be an embarrassment to American justice.

🇺🇸Due Process Forever!

PWS

11-27-21

🏈SPORTS: EXPOSED! — Badgers End B-10 Season With Inept Effort @ MN!  — No Offense, Little D, Lead To Embarrassing Loss — Wisconsin Avoids Michigan Re-Match!

Sad Badger
Sad Badger
PHOTO: Facebook

🏈SPORTS: EXPOSED!— Badgers End B-10 Season With Inept Effort @ MN!  — No Offense, Little D, Lead To Embarrassing Loss, Avoids Facing Michigan In Big-10 Title Game!

By Paul Wickham Schmidt

Courtside Exclusive

November 28, 2021

When the Wisconsin Badgers took the field in Minneapolis on Saturday, afternoon they knew they were one win over the then 7-4 Gophers away from a rematch with the Michigan Wolverines in the Big Ten Title Game next Saturday. For the next 60 minutes, the Badgers looked every bit like a team that wanted to avoid that potential matchup. (Michigan beat the Badgers 38-21 at Camp Randall in October). In the process, the Badgers also lost “Paul Bunyun’s Axe” for the second time in the past four years while being subjected to the Gopher fans’ imitation of Wisconsin’s “patented jump around.” 

Wisconsin was soundly beaten on both sides of the ball by a modestly talented, yet better coached and clearly more motivated, Gopher team. The Badgers failed to score an offensive touchdown. Their sole trip to the end zone came in the first half on a lucky tipped “pick six” by Scott Nelson.

For the second straight week, Coach Jim Leonhard’s “shut down” Badger defense couldn’t get a “less than awesome” offense off the field, particularly yesterday when it counted. The Gophers controlled the tempo of the game from opening kickoff to final whistle.

Perhaps the “best” illustrations of Badger futility came early in the second half. Ahead 10-6 despite a lackluster first half, the Badgers received the second half kickoff with a chance to “make a statement.” They did! But, not the kind they wanted.

Deep in his own territory, Badger QB Graham Mertz lofted a weak pass to 6th year receiver Kendrick Pryor, who made only a half-hearted effort to catch it. Instead the Gopher defender took the ball away, setting up a short field. Three plays later, the Gophers trotted into the end zone to take a 13-10 lead as a bewildered Badger “D” passively looked on. 

On the following possession the Badgers drove methodically inside the Minnesota 10. With second and two from the Gopher five, three downs to make 2 yards, and a then a potential four downs to score, the Badgers appeared destined to retake the lead. Instead, they were forced to settle for a tying field goal that proved to be their last score.

The Golden Gophers then scored the final 10 points and held the Badgers at bay to notch the 23-13 victory. Badger freshman “sensation” running back Braelon Allen was a non-factor. The Badger “O Line’s” inability to open holes was matched by Allen’s failure to break tackles. The few attempts to hit Allen ‘in space” ended with him being stoned by Gopher defenders.

Badger senior tight end Jake Ferguson was another non-factor. Big Ten defensive coordinators have finally figured out how to defend him, particularly in the “red zone.” By contrast, Badger Coach Paul Chryst doesn’t seem to have developed an alternative.

Mertz is a good athlete, but at best an average “pocket passer.” Why not roll him out to create a run option when the receivers are covered? At least force the opposing D to make some difficult choices!

So, instead of a trip to the Big Ten Title Game in Indianapolis next week, the Badgers (8-4, 5-3) “earned” another trip to a “Podunk City Piddly Bowl” against a failed team from a different conference. The “B-Team” announcers sentenced to that (non) “classic,” will be required to shill about the wonders of the Badger defense, the prowess of Allen, and the brilliance of Head Coach Paul Chryst and Defensive Coordinator Jim Leonhard.

But, that won’t hide the truth about a mediocre team that once again underperformed preseason expectations.

🗽⚖️PROFESSOR KAREN MUSALO @ LA TIMES: BIDEN’S DISHONEST USE OF TITLE 42 TO SHAFT ASYLUM SEEKERS IS ILLEGAL, IMMORAL, AND BAD POLITICS! — “Actions speak louder than words, and this stated commitment simply cannot be squared with a policy that denies protection to desperate individuals fleeing grave violence. It is past time to put an end to the use of Title 42, and to restore asylum as required by domestic and international law.”

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law

https://www.latimes.com/opinion/story/2021-11-24/continuing-trumps-pretext-to-block-asylum-claims-biden-defies-the-law-and-good-politicsOp-Ed: Continuing Trump’s pretext to block asylum claims, Biden defies the law and good politics

BY KAREN MUSALO

NOV. 24, 2021 3:10 AM PT

The so-called Title 42 border closure, which uses the COVID-19 pandemic to justify immediate expulsion or deportation of people fleeing persecution and torture, has always been heartless and illegal. So why is the Biden administration indefinitely continuing this most egregious and unlawful of Trump’s immigration policies? Recent reports confirm that it’s in part because the White House doesn’t want the political repercussions of ending it.

That craven position would be a flimsy defense in court. It’s also simply bad politics.

Biden continues to be accused of advocating open borders. It is likely that nothing he can do will placate those who supported Trump’s anti-immigrant policies. On the other hand, recent polling shows that a majority of Americans believe “immigration is a good thing” for the country, and American support for resettlement of Afghan refugees was at 81% in August. It is not necessarily true that harsh immigration policies are winning strategies.

Even if it were politically expedient to keep the border closed to those seeking safety, turning away these individuals without any opportunity to apply for protection is a violation of U.S. law, as well as of international treaties to which the U.S. is a party. The pretext of Title 42 does not make our actions any less a violation of law. This point was made quite clear by Harold Koh, a senior State Department legal advisor and former dean of Yale Law School, who has served in four presidential administrations. In a stern rebuke, Koh wrote that the use of Title 42 was “illegal” and “inhumane,” inconsistent with American values and not worthy of the Biden administration.

Just as the Trump administration invoked it in March 2020, and the Centers for Disease Control and Prevention announced this summer that it would continue, the Biden administration could revoke Title 42 now, permitting asylum applications again in compliance with our legal obligations.

This misuse of Title 42 authority, a public health law, was the brainchild of former President Trump’s senior advisor Stephen Miller. Evidently not satisfied with the administration’s brutal “Remain in Mexico” policy, which forced asylum seekers to await their hearings in Mexico, once COVID-19 struck Miller decided the pandemic could be used as a pretext to close the border, denying migrants the right to even seek asylum. Officials at the CDC maintained that this measure was not justified by public health considerations and only acceded as a result of sustained White House pressure.

The Title 42 policy has resulted in untold suffering. People refused entry are either expelled to Mexico, where they face kidnapping, rape and other brutal assaults, or they are forcibly returned to their home countries — regardless of the human rights violations they may encounter there. Since September, thousands of Haitians have been deported despite the U.S. government’s acknowledgement that Haiti is “grappling with a deteriorating political crisis, violence, and a staggering increase in human rights abuses.” The kidnapping for ransom of American missionaries in October highlighted the acute dangers that persist in the island nation.

. . . .

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

Read Karen’s full op-ed at the link. 

I’m thankful for Karen and other extraordinary leaders of the NDPA who continue to confront the “power structure” with “uncomfortable truth!” 

An orderly refugee processing system abroad and a properly staffed and run asylum system at the border that timely recognizes those needing protection and enlists and cooperates with NGOs to ensure representation and resettlement in locations where they can quickly contribute should actually be more “popular” than the current “scofflaw chaos” resulting from misguided and ultimately futile “maximum enforcement and deterrence” efforts by our Government.

This is not to suggest that “popularity” should be the “test” for whether we comply with our legal and moral obligations to refugees. Given the many documented contributions that refugees and immigrants make to America, there is no reason to assume that a viable asylum program can’t be part of a robust legal immigration program that benefits everyone.  

🇺🇸Due Process Forever!

PWS

11-26-21

😎👍🗽⚖️🙏🏽🇺🇸🍻🍽THANKSGIVING SPECIAL: BILL BOYARSKY: “SPECIAL REPORT: IMMIGRATION AND THE DUTY TO HELP” — How Universities, Clinics, & The NDPA Are Providing The “Practical Scholarship & Essential Humanitarian Leadership” That Our Government Isn’t! — I’m Thankful For Professor Eagly & All The Other Members Of the NDPA & The Round Table!

Professor Ingrid Eagly
Professor Ingrid Eagly
UCLA Law
Blogger, ImmigrationProf Blog
Picture from ImmmigrationProf Blog

Special Report: Immigration and the Duty to Help

From the UCLA Blue Print:

RESEARCH | FALL 2021 ISSUE
SPECIAL REPORT: IMMIGRATION AND THE DUTY TO HELP
“Bringing the university into the streets”
BY BILL BOYARSKY
ACADEMICS, UNIVERSITY STUDENTS and activists are creating an informal network reaching throughout California and beyond to seek justice for the more than 25,000 immigrants held in federal detention centers across the nation. It is eye-opening work and often distressing.
Members of the network struggle to penetrate the secrecy in which Immigration and Customs Enforcement (ICE) shrouds its immigration centers, many located far from attorneys who might be able to help. When the network pierces the concealment, it often finds babies imprisoned with their mothers, random mistreatment by guards and an ever-growing backlog of cases awaiting hearings in immigration court.
“As a state university, we have an obligation to train students who will give back to the state, and immigrants are terribly important. Immigrants contribute greatly to the state,” Ingrid Eagly, a UCLA law professor who is part of the network, told me in a recent telephone interview.
Victor Narro, project director at the UCLA Labor Center and one of Eagly’s network colleagues, put it this way: “We are activist scholars, bringing the university into the streets.”
Championing justice is crucial now, when immigrants are arriving in California and throughout the United States in ever-growing numbers, and it will become ever more urgent as desperate newcomers — refugees hoping for asylum after President Biden’s end to the war in Afghanistan — attempt to enter the country. This is the immediate future of the battle over immigration, one that will shape the future of Los Angeles and the larger nation. It is far from settled.
A Washington Post-ABC News poll in early September showed, for example, general support for the resettlement of Afghans in the United States, after security screening. But granting them entry is likely to anger Americans bitterly opposed to immigration of any kind.
UCLA and beyond
UCLA is at the center of this informal network of professors, students and activists pursuing justice for immigrants. But it is hardly alone.
Immigration clinics at the USC Gould School of Law and Southwestern Law School send students into the community to represent immigrants in deportation hearings. Centers for undocumented students at California State University, San Bernardino, and other Cal State campuses provide gathering places for students and faculty, as well as on-campus locations from which activists can enter the community and fight for those fearing deportation. There are many such examples around the state.
As faculty director of the UCLA Law School’s criminal justice program, Prof. Eagly is deeply involved. She took her students to rural Texas to work with immigrants arrested by federal officers who accused them of illegal entry into the country. The immigrants were jailed by ICE officers after seeking amnesty at the border, or they were caught during raids on their workplaces.
The students went from familiar surroundings at UCLA to ICE’s South Texas Family Residential Center in Dilley, Texas, 70 miles southwest of San Antonio, where the company that runs the center for the federal government had been accused of treating the immigrants as if they were dangerous criminals. The students met with migrants from Guatemala, Mexico, El Salvador, Ecuador and Honduras.
The center is tantamount to a prison for families as they await hearings in which they try to convince an immigration court that they fled their countries because they had feared death or injury at the hands of criminal gangs or corrupt police. These hearings are called “credible fear” interviews. If the immigrants are not persuasive enough, deportation proceedings begin. Like most detention centers, the South Texas facility is far from the immigration lawyers and translators the immigrants need to guide them through the complex process. Among Guatemalans, for example, 22 languages are spoken.
Visiting the South Texas Center gave Eagly’s students a unique experience, she said. “They had deep concerns. We saw babies in arms being detained. We would hear about inadequate health care and mistreatment by guards.” Even though the observers were only law students, Eagly added, the fact that the inmates had any representation at all made a difference in the process and getting people released.
It was an intense introduction to a system bogged down in bureaucracy and shaped by years of hostility toward immigrants, extending through Democratic and Republican administrations. Democrats, fearing an electoral backlash, promoted laws increasing penalties for immigration violations. President Trump, elected as an anti-immigrant crusader, carried them to new extremes. The students learned that the backlog of cases awaiting hearings in immigration court numbered almost 1.4 million, according to Syracuse University’s Transactional Records Access Clearinghouse (TRAC). Someone seeking a hearing at the Texas center could wait as long as 2.4 years, TRAC said.
When Eagly’s students returned from Texas, they recruited lawyers who would take immigration cases without charge and try to help immigrants through the legal maze.
UCLA SOCIOLOGY PROFESSOR Cecilia Menjivar and her students focused on the inequalities that immigrants found in the United States. For many, it was simply a continuation of the hard life they had left in Central America. “Because it is so difficult to access people in detention, we approached it through lawyers,” Menjivar said. “What we wanted to do was capture the everyday life in detention centers. We wanted to focus on what life is like in detention centers. We also interviewed immigrants who had left detention.”
Menjivar recalled visiting a detention center in Eloy, Arizona, about 65 miles southeast of Phoenix, to attend immigration court. “I had to go through three gates before entering the facility, first a barbed-wire gate, then two [more],” she said. “A guard accompanied me until I got to the courtroom. Six gates or doors [total] to get to the courtroom.
“Immigrants are often moved from one place to another. Lawyers may lose contact with them. Immigrants can’t be found, [are] moved to a different facility, sometimes to a different state. So families have to locate relatives.”
Studying the crisis
Narro, the UCLA Labor Center project director, told me about students venturing into Pico-Union in Los Angeles, where impoverished immigrants from Central America and Mexico crowd into apartments, making it one of America’s densest neighborhoods. Some of the immigrants try to find work in the food industry.
The students enroll in classes such as “Immigrants, Students and Higher Education,” taught by Labor Center Director Kent Wong. From these classes come academic studies like the center’s examination of the impact of robots on food workers. The studies, in turn, help shape legislation on the federal, state and local levels.

“Two summers ago, they did a project on gig workers,” Narro said. “We train students on how to survey workers. They interviewed gig drivers. They collected data and analyzed it, and the information was used by community activists.
“[In that way], the activists become scholars.”
Shannon Speed combines many of the attributes of scholars and activists. Speed is a professor of gender studies and anthropology at UCLA and director of the American Indian Studies Center. She also is a citizen of the Chickasaw Nation of Oklahoma.
The center brings together indigenous American Indian students with faculty, staff, alumni and members of the indigenous community. Its goal is to address American Indian issues and support native communities. It also acts as a bridge between the academy and indigenous peoples locally, nationally and internationally.
One of Speed’s accomplishments has been to lead a successful effort to have Los Angeles adopt Indigenous People’s Day, the largest city to do so. As director of the Community Engagement Center at the University of Texas in Austin, she was one of a corps of volunteers who inspected detention centers.
“We would talk [to immigrants] about how things were, what their needs were, how they came to be there,” she said. “Almost all had been kidnapped for ransom.” Now, Speed said, they had no idea when — or whether — they might be released from detention.
She collected some of their stories in a book, Incarcerated Stories: Indigenous Women Migrants and Violence in the Settler-Capitalist State. The subtitle reflects Speed’s thesis: that European settlers imposed a violent culture on Indians living throughout the length and breadth of South and North America, a violence that continues in the treatment of the indigenous people Speed grew up with and whom she and her students met every day.
“What the stories of indigenous women migrants make evident, above all else,” Speed wrote, “is their strength and resilience as they seek to free themselves of the oppression and violence that mark their lives.”
These are the lessons, learned in migrant communities, that students and their academic and activist mentors will take with them as the United States meets its ongoing challenge of immigration, with its newest confrontation: this one between those who approve of Afghan resettlement and those who do not.
There is work left to do: Even as Americans have voiced their sympathy for Afghans who helped U.S. soldiers fight the 20-year war in Afghanistan, the Post-ABC News poll shows that 27% of Americans oppose resettling Afghans here.
IN TOPICS: BIDEN CIVIL RIGHTS FAMILIES IMMIGRATION SANCTUARY TRUMP
TAGGED:IMMIGRATION, PUBLIC POLICY, UCLA

    • Bill Boyarsky
    • Veteran American Journalist & Author
    PHOTO: UCLA

BILL BOYARSKY
Boyarsky is a veteran journalist and author. He was with the L.A. Times for 31 years, serving as city editor, city county bureau chief, political reporter and columnist. He is the author of several books, including: “Inventing LA, The Chandlers and Their Times.”

Republished with author’s permission.

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

Thanks, Bill, for forwarding this great and timely article!😎👍

Courtside recently has highlighted the extraordinary efforts of other All-Star 🌟 Immigration Clinics at Wisconsin, Cornell, and George Washington.

https://immigrationcourtside.com/2021/04/25/%EF%B8%8Fndpa-news-superstar–clinical-prof-erin-barbato-named-clinical-teacher-of-the-year-u-w-law/

https://immigrationcourtside.com/2021/10/21/more-ndpa-news-immigration-guru-professor-stephen-yale-loehr-cornell-immigration-clinic-help-afghan-refugees-with-humanitarian-parole-requests/

https://immigrationcourtside.com/2021/11/19/%EF%B8%8F-of-course-great-lawyering-makes-a-difference-in-immigration-court-only-nativists-former-director-mchenry-would-bogusly-claim-otherwise/

These are just a few of the many law schools across our nation that have answered the call for due process and human dignity for all migrants in America!

I’ve made the point many times that Professor Eagly and other leaders of the NDPA like her are the folks who rightfully should be on the BIA, the Immigration Judiciary, and in the key “sub-cabinet” policy positions at DOJ & DHS. These are critical jobs that generally do not require the delays and inefficiencies associated with Presidential appointments.

I’m thankful for Professor Eagly, her students, and all of the other extraordinary members of the NDPA and the Round Table for courageously and steadfastly standing tall every day for due process for all persons in the U.S., regardless of race, creed, gender, or status! Also, as I always tell my students, I’m personally thankful: 1) that I woke up this morning; and 2) that I’m not a refugee!

Additionally, my condolences ☹️ to UCLA “Bruin Nation” 🐻 for the drubbing their (previously) #2 Men’s hoopsters took at the hands of #1 Gonzaga Tuesday night!🏀

🇺🇸 Due Process Forever!

PWS
11-25-21

🌎ENVIRONMENTAL REFUGEES ARE ENTITLED TO PROTECTION — BIDEN ADMINISTRATION RECOGNIZES PROBLEM, BUT FAILS TO ACT ACCORDINGLY — Bannon & Far Right Neo Fascists 🏴‍☠️ Plan To Leverage Lies, Hate, Fear, & Loathing To Destroy Civilization! ☹️ — Round Table’s 🛡⚔️ Jeffrey Chase & The Guardian’s 🖋 Zoe Williams Sound The Alarm!⏰

https://www.jeffreyschase.com/blog/2021/11/22/white-house-issues-report-on-climate-change-and-migration\

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

BLOG

ARCHIVE

PRESS AND INTERVIEWS

CALENDAR

CONTACT

White House Issues Report on Climate Change and Migration

On October 21, the White House issued a Report on the Impact of Climate Change on Migration which contains a few noteworthy passages relating to the law of asylum.

On page 17, the White House report acknowledges that existing legal instruments for addressing displacement caused by climate change are limited.  Encouragingly, the report advises that “the United States should endeavor to maximize their application, as appropriate” to such displaced individuals.

The report next cites both the 1951 Refugee Convention and the 1967 Protocol and their application to climate-induced displacement, referencing recent UNHCR guidance on the topic.  The report then offers three examples in which climate change issues might arise in the asylum context.

First, the report recognizes that where “a government withholds or denies relief from the impacts of climate change to specific individuals who share a protected characteristic in a manner and to a degree amounting to persecution, such individuals may be eligible for refugee status.”

Secondly, the report acknowledges that “adverse impacts of climate change may affect whether an individual has a viable relocation alternative within their country or territory.”  This language relates to the regulatory requirement that in order to have a well-founded fear of persecution, an asylum applicant could not avoid persecution by relocating within their country of nationality “if under all the circumstances it would be reasonable to expect the applicant to do so.”1

The applicable regulations instruct that:

adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties. Those factors may, or may not, be relevant, depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate.2

While the regulatory language is broad and non-exhaustive, the specific mention of climate change factors in the White House report is most welcome, as such circumstances might not otherwise jump out at immigration judges and asylum officers as being relevant to the relocation inquiry.

Thirdly, the White House report states that “[c]limate activists, or environmental defenders, persecuted for speaking out against government inaction on climate change may also have a plausible claim to refugee status.”

Although not specifically cited in the White House report, UNHCR issued guidance on the topic in October 2020.3  Practitioners should file both the White House report and the UNHCR guidance with EOIR and DHS in appropriate cases, as the latter clearly served as an influence for the former, and provides greater detail in its guidance.4  For instance, in discussing how climate change factors can influence internal relocation options, the UNHCR document at paragraph 12 makes clear that the “slow-onset effects of climate change, for example environmental degradation, desertification or sea level rise, initially affecting only parts of a country, may progressively affect other parts, making relocation neither relevant nor reasonable.”  This detail not included in the White House report is important; it clarifies that the test for whether relocation is reasonable requires a long view, as opposed to limiting the inquiry to existing conditions, and specifically flags forms of climate change that might otherwise escape an adjudicator’s notice.

Also, in paragraph 10, the UNHCR document’s take on the White House report’s third example is somewhat  broader, stating that “[a] well-founded fear of being persecuted may also arise for environmental defenders, activists or journalists, who are targeted for defending, conserving and reporting on ecosystems and resources.”5  UNHCR’s inclusion of journalists as potential targets, and its listing of “defending, conserving, and reporting” as activities which a state might lump into the category of “speaking out” and use as a basis for persecution, should be brought to the attention of adjudicators.

Given how early we are in the process of considering climate change issues in the asylum context, the above-cited language in the White House report is important, as it provides legitimacy to theories still unfamiliar to the ears of those adjudicating, reviewing, and litigating asylum claims.  It is hoped that EOIR and DHS will immediately familiarize its employees who are involved in asylum adjudication with the report.  And as EOIR and DHS consider next steps in developing guidance and training, it is hoped that they will consider a collaborative approach, including in the discussion those outside of government who have already given the topic a great deal of thought.6

Copyright 2021 Jeffrey S. Chase.  All rights reserved.

Notes:

  1.  8 CFR 208.13(b)(2)(ii).
  2. Id.
  3. UN High Commissioner for Refugees (UNHCR), Legal considerations regarding claims for international protection made in the context of the adverse effects of climate change and disasters, 1 October 2020, https://www.refworld.org/docid/5f75f2734.html, at para. 12.
  4. Although UNHCR’s views on interpreting the 1951 Convention and 1967 Protocol are not binding on the U.S. Immigration Courts, they have been found by the BIA to be “useful tools in construing our obligations under the Protocol.”  Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).  See also INS v. Cardoza-Fonseca, 480 U.S. 421, 438-39 (1987).
  5. Id. at para. 10.

See, e.g. “Shelter From the Storm: Policy Options to Address Climate Induced Displacement From the Northern Triangle,” https://www.humanrightsnetwork.org/climate-change-and-displaced-persons.

NOVEMBER 22, 2021

NEXT

The Need For Full-Fledged Asylum Hearings

ARCHIVE

Blog | Archive | Press and Interviews | Calendar | Contact

Sign up with your email address to receive news and updates.

SIGN UP

We respect your privacy.

<img src=”https://images.squarespace-cdn.com/content/v1/593d84191e5b6ca18cb547ee/1576527959952-C9MO449EII0SH3V1X9M7/Screen+Shot+2019-12-16+at+3.24.24+PM.png” alt=”Screen Shot 2019-12-16 at 3.24.24 PM.png” />

pastedGraphic.png