The Biden administration announced late Monday that it would begin swiftly removing migrant families that immigration officials determined did not qualify for asylum after an initial screening at the southwestern border.

The Biden administration is planning to speed up deportations for some migrant families who cross the US-Mexico border, the Department of Homeland Security said Monday.

Just a few short months ago, Lucio Perez moved out of the western Massachusetts church he’d lived in for more than three years to avoid deportation. Immigration authorities in March granted the 40-year-old Guatemalan national a temporary stay in his deportation while he argued to have his immigration case reconsidered.

The Supreme Court ruled Tuesday that the government can indefinitely detain certain immigrants who say they will face persecution or torture if they are deported to their native countries.

Deportation can carry grave consequences. An immigrant might have to leave behind their family, abandon years-long ties to their community, and return to a country where they may have previously faced threats to their life and livelihood — even the kind that might have qualified them for humanitarian protection in the US had they been able to prove it.

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Originally published by Slate

Under the cover of the pandemic, the Trump administration has closed the southern border indefinitely to desperate asylum seekers, suspended visas for skilled workers, threatened to deport foreign students, and generally increased the opacity and bureaucracy of the immigration system. Simultaneously, human rights organizations along the border or near ICE detention centers are pleading for volunteer attorneys across the country for one- or two-week stints to assist migrants seeking protection from persecution. When I’ve visited and volunteered at those sites in Tijuana, Nogales, and southern Texas, the truth is obvious to me: there is no way that we volunteers can adequately pick up the slack of doing quality work for more than a handful of individuals during our visits. After all, there are more than 60,000 migrants waiting to apply for asylum at the border right now, and more than 30,000 in ICE detention centers around the country-many operated by for-profit private prison companies. There are simply not enough of us. It is time to require the government to provide an immigration attorney to those who cannot afford one because of what’s at stake.

The legal organizations that do exist cannot meet the need of our local communities. For example, as one of more than twenty legal services programs in the San Francisco Bay Area funded to represent noncitizens facing deportation, the University of San Francisco immigration clinic that I help operate has about 350 open and active cases, with a waiting list of more than 200. Some of the other area agencies have even larger waitlists.

No one should be stuck on a waitlist for vital legal representation. But there is simply not enough legal aid and pro bono help available for those who need it. The law provides that someone facing deportation has a right to counsel, but not at government expense. In other words, if you cannot afford an attorney, you have to hope a law school clinic, a legal services attorney, or a pro bono attorney can take your case-otherwise, you are on your own. The Sixth Amendment does grant a right to government-appointed counsel to criminal defendants, but deportation cases are classified as civil rather than criminal in nature.

Due process arguments that the federal government should provide counsel to those facing removal have not been successful. The only exception is one federal court that ordered the government to provide counsel to immigrant detainees with mental disabilities. But that’s it. Non-detained respondents who are mentally incompetent are not covered by the ruling. Even children facing deportation are not provided counsel; they are regularly forced to represent themselves in court.

Does having an attorney make a difference? Of course. Those in removal proceedings with representation are three times more likely to win their case than those without attorneys. Broken down further, for those in detention without an attorney only one out of seven avoid removal, while detained people who are represented prevail almost half the time. For children facing deportation; only 15 percent of unaccompanied minors facing deportation without representation are permitted to remain in the country, while 73 percent of those with representation are granted relief. Only about a third of individuals facing deportation have counsel.

Why does having an attorney in removal cases make a difference? Of course it helps to know how the process works in the immigration court and the legal requirements for such things like asylum or cancellation of removal relief. However, from there, the list of what attorneys do is long. An attorney can help someone rounded up by ICE prove their U.S. citizenship or, often, determine if they are a U.S. citizen and simply don’t realize it. Then there’s the task of researching whether the government’s allegations are accurate and gathering evidence, letters of support, expert testimony, and psychological evaluations. The client has to be prepared to testify credibly and consistently, and face cross-examination by the government’s attorney (the government is always represented in deportation cases even if the respondent is not). Clients suffering from PTSD-most asylum applicants-need to be evaluated and counseled more carefully. The client also needs to be prepared to be questioned by the immigration judge. For clients who are unaccompanied minors who fled gang or cartel violence, the attorney may need to go into state court for a special order to protect the child from deportation. Similarly, for clients facing deportation because of criminal charges, the attorney may need to go back into to state criminal court to challenge the viability of the guilty plea that resulted in the criminal conviction that led to deportation charges.

It’s not surprising that U.S. immigration laws are often referred to by federal judges as byzantine. The Supreme Court recognized those complexities and the importance of knowing the immigration laws in Padilla v. Kentucky, a 2010 case that imposes a duty on criminal defense attorneys to inform clients of the risk of deportation.

Different cities and states around the country have recognized the importance of providing immigration attorneys to individuals facing removal. The New York Immigrant Family Unity Project, a program funded by the New York City Council, is the nation’s first public defender system for immigrants facing deportation. NYIFUP has pioneered representation for detained indigent immigrants in deportation proceedings in New York City who were unrepresented at their initial hearing. In northern California, San Francisco, San Mateo, Alameda, Sonoma, Santa Clara counties provide funding for individuals facing removal-including many who are not detained. The state of California regularly provides funding for immigration services, including special funding for representing unaccompanied minors. Chicago also created a fund for immigrant legal services in response to the Trump administration’s aggressive immigration enforcement tactics. These efforts are encouraging, but thousands are falling through the cracks of this patchwork system.

It’s time for a more drastic intervention to ensure everyone who needs representation in immigration court gets it. We’ve made such a move before. Before 1963, states were not required to provide counsel to every criminal defendant under the Sixth Amendment. However, in Gideon v. Wainwrightthe Supreme Court reinterpreted the Constitution to mandate that every defendant in criminal court be provided an attorney. There was too much at stake, namely personal liberty, to rule otherwise-even for Gideon, who was charged with breaking and entering with intent to commit petty larceny. In the Court’s view, the assistance of counsel is a safeguard necessary to insure fundamental human rights of life and liberty. In a concurrence, Justice Clark emphasized that it would be a difficult value judgment to make that the deprival of liberty [is] less onerous than deprival of life.

We are at a Gideon v. Wainwright moment in immigration law today. There is simply too much at stake in deportation hearings to allow the outcome to be determined by whether the respondent is wealthy enough to afford counsel or lucky enough to obtain competent pro bono counsel or a waitlist spot opens up in a legal services program. The Ninth Circuit Court of Appeals has come close to ordering court-appointed counsel for indigent children in removal proceedings. But that’s it. Just as the Supreme Court has stepped up to recognize that due process requires the appointment of counsel for all criminal defendants in Gideon as well as juveniles in delinquency proceedings, the courts must do the same for deportation respondents. If not, Congress needs to intervene to fund universal representation for immigrants facing removal.

Justice Brandeis recognized long ago that deportation is akin to the loss of property or life, or all that makes life worth living. Now we should borrow the principles of the Sixth Amendment and apply them to individuals facing deportation. Counsel should be provided at government expense. The vast majority in proceedings are either facing the prospects of separation from loved ones here or extreme violence in places like Honduras, Guatemala, and El Salvador. For them, getting an attorney is a matter of life and death.

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Originally published by Huff Post

WASHINGTON (Reuters) – The U.S. Supreme Court on Thursday enhanced the ability of President Donald Trump‘s administration to quickly deport illegal immigrants including asylum seekers with limited judicial review, handing him a victory in a case involving one of his signature issues in an election year.

The justices ruled 7-2 in favor of the administration in its appeal of a lower court ruling that a Sri Lankan farmer named Vijayakumar Thuraissigiam had a right to have a judge review the government’s handling of his bid for asylum.

The ruling, written by conservative Justice Samuel Alito, found that limiting judicial scrutiny of his rapid deportation case, known as expedited removal, did not violate key safeguards of individual liberty in the U.S. Constitution. Two of the court’s four liberal justices, Stephen Breyer and Ruth Bader Ginsburg, joined the five conservative justices on the outcome but did not embrace Alito’s reasoning.

Alito wrote that it has long been recognized that people who have yet to be granted legal entry to the United States do not have the full range of constitutional rights and that Congress has some authority to determine what rights they do possess.

While aliens who have established connections in this country have due process rights in deportation proceedings, the court long ago held that Congress is entitled to set the conditions for an alien’s lawful entry into this country, Alito wrote.

Liberal justices Sonia Sotomayor and Elena Kagan dissented.

The San Francisco-based 9th U.S. Circuit Court of Appeals in 2019 ruled that under the Constitution’s suspension clause – relating to a person’s ability to challenge confinement by the government – courts must have the power to review Thuraissigiam’s claims.

The administration contended that the 9th Circuit ruling would defeat the purpose of quick deportation and impose a severe burden on the immigration system. Trump’s hardline policies on immigration and deportation have been a centerpiece of his presidency and his bid for re-election on Nov. 3.

The American Civil Liberties Union, representing Thuraissigiam, had warned that the administration’s stance, if accepted by the court, could be used to deport millions of illegal immigrants without meaningful judicial review.

Last week, the Supreme Court delivered a blow to Trump by blocking his attempt to rescind a government program that protects Dreamers – mostly immigrants from Latin America brought to the United States illegally as children – from deportation.

Thuraissigiam sought asylum in the United States, claiming that as a member of Sri Lanka’s Tamil minority he was tortured over his political ties and subjected to beatings and simulated drowning. He fled Sri Lanka in 2016 and was arrested in 2017 just north of the U.S. border between San Diego, California, and Tijuana, Mexico.

He was placed on track for expedited removal, a system dating back to 1996 that makes an exception for immigrants who can establish a credible fear of persecution or torture in their home country. But officials rejected Thuraissigiam’s claim of credible fear, short-circuiting the asylum process.

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Originally published by Politico

A federal appeals court handed President Donald Trump a significant win on immigration policy Tuesday, overturning an injunction that blocked his administration’s effort to broaden the number of immigrants eligible to be deported under a fast-track process.

A unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit delivered the victory to Trump just four days after the Supreme Court disappointed the president by issuing a 5-4 decision rejecting his administration’s effort to wind down the Obama-era DACA program, which offers temporary deportation protection and work permits to so-called Dreamers.

The new D.C. Circuit ruling found a lower court judge erred last September when she barred the expansion of expedited removal, which had previously been used for immigrants taken into custody within 100 miles of the Mexican border and only when agents contend the immigrants have been in the U.S. for less than 2 weeks.

The plan the appeals court greenlighted Monday would allow authorities to use the sped-up process with alleged illegal immigrants picked up anywhere in the country who appear to have been in the U.S. for less than two years. The process typically bypasses immigration judges and provides for no review of their decisions in the cases where they are brought in.

The two Democratic appointees assigned to the suit, Obama nominee Patricia Millett and Carter appointee Harry Edwards, said the courts had jurisdiction to consider the challenge brought by immigrant rights’ advocates.

However, the two judges concluded that federal immigration law appeared to put the decision issued last year by acting Homeland Security Secretary Kevin McAleenan beyond the reach of the Administrative Procedure Act, which courts often use to assess agency actions. In addition, Millett and Edwards said DHS did not appear to have been obliged to release the policy for public comment before adopting it.

The immigrant advocates do not have a likelihood of success on their APA notice-and-comment and reasoned decisionmaking claims because the Secretary’s decision to expand the scope of expedited removal within statutory limits is committed to agency discretion by law, wrote Millett, in an opinion joined by Edwards.

Millett noted that the statute actually gives the secretary sole and unreviewable discretion to apply the expedited removal process within certain constraints. There could hardly be a more definitive expression of congressional intent to leave the decision about the scope of expedited removal, within statutory bounds, to the Secretary’s independent judgment, she wrote.

Judge Neomi Rao, a Trump appointee, said she would not have delved into the issue of whether the immigrant rights groups that brought the case have standing. She would have tossed out the case based solely on the language that gave the Homeland Security secretary unreviewable discretion.

Rao said that showed Congress sought to strip lower courts of jurisdiction over suits like the one brought by immigrant advocates against the expedited removal policy change.

Under our Constitution, inferior federal courts have no power except that which is specifically granted by Congress, she wrote. No court ‘other than the Supreme Court’ has jurisdiction to enjoin the operation of the Expansion Designation.”

Rao also said her colleagues’ decision represented yet another marker on the road to government by injunction.

The majority opinion swiped back at Rao, complaining that she’d gone out of her way to endorse arguments that not even the secretary advanced.

The American Civil Liberties Union, which brought the suit, noted that the appeals court decision did not definitively resolve the case. The group said it plans to return to U.S. District Judge Ketanji Brown Jackson and press claims she did not address before issuing the preliminary injunction the D.C. Circuit overturned Tuesday.

This is only the first round in our fight against the Trump administration’s illegal attempt to remove hundreds of thousands of people from the U.S. without any legal recourse, ACLU lawyer Anand Balakrishnan said. The court ruled that our suit was properly brought and we can now pursue our statutory and constitutional claims in order to once again block this cruel policy.

Spokespeople for the departments of Justice and Homeland Security, and the White House did not immediately respond to requests for comment on the ruling.

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Originally published by The Hill

The Trump administration has published a proposal to revise the regulations that govern the processing of applications for asylum and withholding of removal.

According to the administration, the proposed changes would reduce the number of meritless claims, provide additional clarity for the adjudicators on issues commonly raised by asylum applications, and make the overall adjudicatory process more efficient. The proposal at page 36290 of the June 15 Federal Register.

House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) and Immigration Subcommittee Chair Zoe Lofgren (D-Calif.) have called the proposed changes “abhorrent, un-American, and illegal.

The Tahirih Justice Center claims that the administration’s objective is to overturn U.S. asylum law by making it effectively impossible for people fleeing persecution to obtain protection in the United States.

And according to Ur Jaddou, the Director of DHS Watch, For three and a half years, the American asylum system has been dying a death of a thousand cuts, but this regulation is a guillotine.

Their concern is misplaced.

The immigration court backlog crisis is the real threat to our asylum program, not the proposed regulations. The backlog was only 542,411 cases in January 2017, when President Donald Trump took office, and it has more than doubled since then. As of the end of April 2020, it was 1,166,085 cases.

The average wait for a hearing was two years.

Moreover, pressure to keep up with the ever-increasing backlog has resulted in having to hire more judges, some of whom did not have any immigration law experience.

The situation is hopeless unless major changes are made in the way asylum applications are processed.

Efforts are being made to make the immigration court more productive, but they aren’t even close to being adequate.

In fiscal 2019, the immigration court completed 275,552 cases, which was the second-highest completion total in its history – but at that rate even if the court stopped accepting new cases, which isn’t going to happen, it would take more than four years to clear the backlog.

Expedited Removal Proceedings

8 USC §1225(b)(B)(iii) provides for the expedited removal of aliens who are inadmissible because they do not have valid entry documents or they have attempted to procure their admission through fraud or misrepresentation. However, an alien who expresses an intent to apply for asylum, or a fear of persecution or torture, will be interviewed to determine whether his fear is credible.

If the alien succeeds in establishing a credible fear of persecution or torture, he is entitled to a hearing before an immigration judge at which he can apply for asylum, withholding of removal under the provisions in 8 USC §1231(b)(3)(A), or withholding of removal under regulations for the Convention Against Torture (CAT). The United States has been a CAT signatory since 1988.

The only relief provided by a grant of withholding is that the alien will not be deported to the country where he would face persecution or torture. He could be deported to any other country that will accept him.

The proposed regulations would make a number of changes in the expedited removal procedures.

Currently, to establish a credible fear of persecution or torture, an alien just has to show a significant possibility that he will be able to establish eligibility for the relief he is seeking.  The proposed regulations would increase this to a reasonable possibility if the alien is seeking withholding of removal (Page 36268).

The proposed regulations also would require asylum officers to make additional legal determinations, such as deciding whether an alien is subject to statutory or regulatory bars to eligibility for the relief being sought. The asylum officer’s decisions would be subject to review by an immigration judge (Page 36272).

I don’t like these proposals. The proceedings are supposed to be expedited, and the additional tasks would make credible fear determinations take longer to complete.

Hearings before an immigration judge

The proposed regulations would also permit immigration judges to deny an application for asylum or withholding of removal without a hearing if the alien does not establish a prima facie claim for relief (Page 36277). This would be a problem for aliens who are not represented by counsel. Laymen can’t be expected to know the elements of an asylum or a withholding of removal application.

In addition to establishing eligibility, an asylum applicant must also establish that it is warranted as a matter of discretion. The proposed regulations provide factors that immigration judges should consider in making that determination. (Page 36282). Guidelines could be helpful. Data on asylum decisions indicates that the immigration judges are not applying asylum law uniformly. The outcome of a case may depend on which judge an alien draws for his hearing.

The proposal most likely to reduce the backlog

Currently, an alien who establishes a credible fear is entitled to a full hearing before an immigration judge in removal proceedings in accordance with the requirements in 8 USC §1229a. The proposed regulations would limit their hearings solely to asylum and withholding of removal. (Page 36267).

It’s unfair to give an alien who establishes a credible fear of persecution or torture an opportunity to apply for relief that is not related to persecution or torture. That opportunity is not available to aliens in expedited removal proceedings who can’t establish a credible fear.

Benefits of hearings solely for asylum and withholding of removal applications

More judges are needed to deal with the backlog, but apparently there is a shortage of experienced immigration lawyers who want to be immigration judges.

The Executive Office for Immigration Review (EOIR) has had to lower its standards. It has been hiring lawyers without any immigration law experience. In fact EOIR’s immigration judge vacancy announcement doesn’t even mention immigration law experience.

Immigration judges are on their own when they conduct hearings. It’s just them and the parties. And the immigration laws take time to learn – they have been described as second only to the Internal Revenue Code in complexity.

It isn’t possible to prepare a lawyer with no immigration law experience to handle the entire range of immigration law issues. It is possible, however, to prepare an inexperienced lawyer to preside over a hearing that is limited to asylum and withholding of removal.

The administration’s proposal isn’t perfect, but it is just a proposal. It’s not a finished product.

There is still time to improve it – and the rulemaking process provides people who want to do something more than just write angry op-eds with an opportunity to share their ideas with a large audience of interested parties. The deadline for submitting comments is July 15, 2020.  See page 36264 for instructions.

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No experience required: US hiring immigration judges who don't have any immigration law experience

Originally published by The Hill

The House Subcommittee on Immigration and Citizenship recently held a hearing on Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts.  Three of the four witnesses testified that there has been an increase in political interference which has resulted in a lack of judicial independence, and this has eroded due process.

Their solution is to transfer the functions of the immigration court from the Department of Justice (DOJ) to an independent Article I court, which is a court created by Congress pursuant to Article I of the Constitution.

The immigration court needs more resources and has management problems, but there are good reasons for keeping it in the Executive branch. The real threat to due process, moreover, is not political interference, but hiring judges who don’t have any immigration law experience.

Article 1 court

The president of the National Association of Immigration JudgesJudge Ashley Tabaddor, testified that when Congress established the Department of Homeland Security (DHS), it moved the Immigration and Naturalization Service (INS) to DHS and kept the immigration court at DOJ to insulate it from enforcement influences.

Leaving the immigration court under the authority of the nation’s chief federal prosecutor, the U.S. Attorney General, was not an effective way to insulate it from enforcement influences, she suggested.

Judge Tabaddor claimed that, the will of Congress cannot be carried out by a court located within DOJ.

But keeping the Attorney General in charge of immigration law adjudications is the will of Congress. According to the Congressional Research Service, the Attorney General has had statutory authority to interpret and adjudicate immigration law for decades. The most general statement of this authority can be found in section 103(a)(1) of the Immigration and Nationality Act of 1952 (INA).

Section 103(a)(1) was amended when DHS was created, but authority over immigration adjudications was left with the Attorney General. The pertinent part of section 103(a)(1), as amended, reads as follows:

The Secretary of Homeland Security shall be charged with the administration and enforcement of … laws relating to the immigration and naturalization of aliens … Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.

The fourth witness in the hearing, Andrew Arthurquoted a paragraph from a Supreme Court decision which explains why the immigration court should remain in the Executive Branch:

[W]e have recognized that judicial deference to the Executive Branch is especially appropriate in the immigration context where officials ‘exercise especially sensitive political functions that implicate questions of foreign relations.’ . . . A decision by the Attorney General to deem certain violent offenses committed in another country as political in nature, and to allow the perpetrators to remain in the United States, may affect our relations with that country or its neighbors. The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions.

He also said that an Article 1 court would not free the judges from political influence. Funding for an Article 1 court would not be part of DOJ’s budget. It would come directly from Congress, which would make the court vulnerable to political pressures from Congress, and the makeup of future congresses could be much different than it is today.

Hiring judges without immigration law experience

Congresswoman Sheila Jackson Lee (D-Texas) pointed out that the Executive Office for Immigration Review (EOIR) has been hiring as judges lawyers who do not have any immigration law experience.

In fact, the experience requirement in immigration judge vacancy announcements doesn’t even mention immigration law experience:

Experience: Applicants must have a full seven (7) years of post-bar experience as a licensed attorney preparing for, participating in, and/or appealing formal hearings or trials … Qualifying litigation experience involves cases in which a complaint was filed with a court, or a charging document … was issued by a court, a grand jury, or appropriate military authority…

EOIR recently swore in 28 new immigration judges, and 11 of them had no immigration law experience.


That’s a problem for justice.

Due process isn’t possible when judges do not fully understand the law – and it takes a long time to learn immigration law. According to the American Bar Association, To say that immigration law is vast and complex is an understatement. Rutgers University law professor Elizabeth Hull says that our immigration laws are second only to the Internal Revenue Code in complexity.

The concern over judges with no immigration law experience is more than just idealism or theory – the inexperience can impact people’s lives in major ways.

For instance, an otherwise deportable alien may be eligible for lawful permanent resident status if he has been in the United States long enough. 8 USC §1259 permits certain deportable aliens to register for permanent residence if they entered the United States prior to Jan. 1, 1972; have resided in the United States continuously since such entry; have good moral character; and are not ineligible for citizenship.

How many inexperienced immigration judges would know that?

This influx of inexperience may explain why asylum decisions vary so widely from judge-to-judge.

What’s more, these judges might not be able to meet the eligibility standards for an Article 1 court if subject matter expertise is required.

None of this will matter if the backlog crisis isn’t brought under control

The immigration court backlog was only 542,411 cases in January 2017, when President Donald Trump took office. It was 1,089,696 cases three years later.

In fiscal 2019, the immigration court completed 275,552 cases, which was the second-highest completion total in its history. But DHS filed more than 443,000 new cases that year.

EOIR should not be trying to deal with this backlog by hiring more judges if it can’t find judges with adequate immigration law experience.

It may be too late to find an acceptable solution. Even if no new cases are given to the immigration court, at the rate of 275,552 completions a year, it would take four years to clear the backlog.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at

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