Justice At The Table

First, forgive me for the late notice. In this season of light, there are is still darkness to contend with. In 90 minutes, the commend period will close for responding to new rules for immigration court proceedings and granting continuances (postponing of a hearing). Please consider signing the letter below and I will do my best to submit in before 9:00 pm Pacific Time today.

Submitted on December 28,2020. Comment period is closed.

Lauren Alder Reid

Assistant Director, Office of Policy

Executive Office for Immigration Review

5107 Leesburg Pike, Suite 2616

Falls Church, VA 22041

RE: RIN 1125-AB03, EOIR Docket No. 19-0410, Dir. Order No. 02-2021,  

Public Comment Opposing Proposed Executive Office for Immigration Review Rule Titled “Good Cause for a Continuance in Immigration Proceedings”

As people of faith and good of will celebrate this season of light, we continue to stand against injustice in our country’s immigration system. 

 The proposed rules contained in “Good Cause for a Continuance in Immigration Proceedings:” 1125-AB03, EOIR Docket No. 19-0410, Dir. Order No. 02-2021 are examples of that injustice. 

They strip due process rights from noncitizens before the immigration court, and curtail immigration judges’ discretion to manage their cases in an individualized and fair manner.  The changes will have detrimental effect on the cases for:

• DACA recipients,
• Youth seeking Special Immigration Juvenile Status  (SIJS) from El Salvador, Honduras, or Guatemala, and Mexico due to the visa backlog,
• Women seeking protection under the Violence Against Women Act (VAWA),
• U-Visa applicants who are victims of crime,
• T Visa applicants who are victims of human trafficking.

Is that justice?  Is that protecting the most vulnerable?

The proposed rules listed below should not be inaccted.

• 8 CFR § 1003.29(a):  Limiting immigration judges’ ability to grant no more than 180 days (6 months) for asylum cases in the absence of exceptional circumstances.

• 8 CFR § 1003.29(b)(2): Proposing a list of situations of that would not qualify for “good cause for continuance” including seeking parole, deferred action, or the exercise of prosecutorial discretion by DHS.  Immigration judges could enter removal orders for DACA applicants, Deferred Enforced Departure, humanitarian deferred action, parole in place, and prosecutorial discretion with DHS.

• 8 CFR § 1003.29(b)(3)(i), (ii): Individuals applying for immigrant visas and or waiting a change in status with approved petitions outside of the 180 days (6 months) of the VISA bulletin filing date will be denied. 

• 8 CFR § 1003.29(b)(3)(iii), (iv): Applicants for non-immigrant visas who do not receive visas within the 6 months of continuance request will face immediate removal orders

• Proposed 8 CFR § 1003.29(b)(3)(v)):  Restricting Immigration Judge’s ability to grant continuance for cases where DHS has initial jurisdiction.

• Proposed 8 CFR § 1003.29(b)(4)(i), (ii):  Restrictions on continuances to secure representation allowing the judge to deny continuance and limit continuance to only 30 days.

• Proposed 8 CFR § 1003.29(b)(4)(iii):  Case load of representative is not considered “good cause for continuance.

• Proposed 8 CFR § 1003.29(b)(4)(iv)):  Only a single continuance of 14 days for case prehearing preparation will be allowed. This rule applies to respondents and their attorneys only; DHS attorney are not subject to the rule.

• Proposed 8 CFR § 1003.29(b)(4)(v):  Continuances will not be granted if representative did not disclose at time of hearing, or request was not sent to immigration court within 14 days of hearing.

• Proposed 8 CFR § 1003.29(b)(4)(vi):  Failure to appear by respondent’s attorney to appear at removal proceedings has a 14 day period for continuance regardless of reasons.

• Proposed 8 CFR § 1003.29(b)(5):  Immigration judges will be limited to 14 specific categories for granting continuances.

• Proposed 8 CFR § 1003.29(b)(6):  Immigration Judges will only be able to grant continuances for a maximum of 30 days for  3 reasons for removal hearings.

Signed,

John Kingery, Beaverton, OR, Catholic

Marilyn Grendele, Beaverton, Oregon, Cedar Hills United Church of Christ

Chris Kondrat, Portland, Oregon, Catholic

On June 15, proposed procedures were printed in the Federal Register – https://www.federalregister.gov/documents/2020/06/15/2020-12575/procedures-for-asylum-and-withholding-of-removal-credible-fear-and-reasonable-fear-review.

“Refugee status or asylum may be granted to people who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion” – U.S . Citizenship and Immigration Services, https://www.uscis.gov/humanitarian/refugees-and-asylum.

The proposed procedures eviscerate that process.

Please add you name, city and state to this collective public comment using the form below by Monday, July 13 at 6 pm Pacific Time. That provides time to update the names on our public comment before the deadline of 1 pm Eastern Time (12:00 pm Central/ 11:00 am Pacific Time If you have already submitted an individual comment, you can still sign this comment.

This community public comment will be submitted to Lauren Alder Reid, Assistant Director, Office Of Policy Executive Office for Immigration Review, and the Desk Officer, U.S Citizenship and Immigration Services, DHS. I will also be sending copy to Representative Suzanne Bonamici, Oregon 1^st District.   Your name and other will not be shared with any individuals or organizations.

Time to stand up and have our voices heard.  

Thank you.   

Peace, John.

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RE: RIN 1125-AA94 or EOIR Docket No. 18-0002, Public Comment Opposing Proposed Rules on Asylum, and Collection of Information OMB Control Number 1615-0067

We are immigration advocates, descendants of immigrants and people of faith.  Collectively, we oppose the proposed Procedures for Asylum and Withholding of Removal; Credible Fear, and Reasonable Fear Review published in the Federal Register on June 15, 2020.  Your ability to write this rule and similar rules rests upon laws passed by Congress, the U.S. Constitution you are sworn to uphold, and the citizens of the nation you serve.   In exercising that ability please remember the following –

• Authority must be guided by the moral law,
• Authority must recognize, respect and promote essential human and moral values,
• Authority must enact just laws; that is, laws that correspond to the dignity of human persons and what is required by right reason.[i]

The proposed rule violates the norms of international and US law relating to asylum, is contrary to moral values, and is a deviation from standard rule making process.    Specific areas include but are not limited to:

• due process violations,
• particular social groups,
• political opinion,
• persecution,
• internal relocation,
• firm resettlement,  and
• standard rule making process.

Due process violations: 8 CFR § 1208.13 (e)

Immigration judges could deny asylum seekers requests without having a chance to testify or produce evidence if the immigration judge independently determines the claim is without merit or at the request of the DHS attorney.  The scales of justice become imbalanced.

Granting judges “pretermit” authority for asylum claims deprives those without legal representation and English language skill of their day in court.  Restrictions on referring to prior rules and decisions violate the bedrock of American justice – precedent.  Due process will be denied.

See Matter of Fefe  20 I&N Dec. 116, 118 (BIA 1989) (“In the ordinary course, however, we consider the full examination of an applicant to be an essential aspect of the asylum adjudication process for reasons related to fairness to the parties and to the integrity of the asylum process itself.”)

I attended a Master Calendar Hearing for a father and his three year old daughter.  He did not speak English, and was as appearing pro se. How could he be afforded due process then?  His and his daughter’s chances for due process would be significantly further reduced by the proposed rule.

It will deny families such as the one above their day in court.  Other families will suffer a similar fate and their families suffer harm. We vehemently oppose the new rule. 

Particular social groups: 8 CFR § 208.1(c); 8 CFR § 1208.1(c)

Applicants for asylum and withholding of removal are legally required to demonstrate that the persecution they fear is on account of a protected characteristic: race, religion, nationality, membership in a particular social group (PSG), or political opinion – INA § 101(a) (42). 

PSG was designed to be flexible enough to cover those instances where an individual does not fit neatly into the other categories.  Human beings are complex and their experiences are complicated.  During my education, I learned how difficult it is to determine membership in a particular social group.

An asylum seeker’s life should not be dependent upon their ability to expertly craft the appropriate language of particular social group membership.  Those individuals face the obstacles of language and crafting the appropriate language.   Asylum officers and immigration judges have the duty of helping develop the record. 

Due process would be severely damaged if this rule is adopted. The opportunity to welcome deserving individuals will be lost. “So then you are no longer strangers and aliens, but you are fellow citizens.” – Ephesians 2:19   Do we want that opportunity lost?  No; 8 CFR § 208.1(c); 8 CFR § 1208.1(c) should be removed or revised to support the flexible intent of law.

Political opinion: 8 CFR § 208.1(d); 8 CFR § 1208.1(d)

The proposed rule essentially redefines the definition of “political opinion” to a discrete cause of a state or a unit of the state.  Resistance to a gang, terrorist group or other entity would be denied as grounds for asylum.

“The Secretary, in general, will not favorably adjudicate claims of aliens who claim a fear of persecution on account of a political opinion defined solely by generalized disapproval of, disagreement with, or opposition to criminal, terrorist, gang, guerilla, or other non-state organizations absent expressive behavior in furtherance of a cause against such organizations related to efforts by the state to control such organizations or behavior that is antithetical to or otherwise opposes the ruling legal entity of the

state or a legal sub-unit of the state.” – Proposed Rule 8 CFR § 208.1(d).

In 2019, I met a young mother, Juanita (not her real name), fleeing persecution at the hands of a Honduran gang.  She was opposing the construction of a dam which would have destroyed her village.  Family members were killed, her life and that of her family was threatened; she took the dangerous journey with her 5 year old son Bernardo (not his real name) to the United States.   The gang was not the state or a legal sub-unit.  The proposed rule would have potentially barred her asylum request.  Recognition, respect and promotion of essential human and moral values are obliterated by the proposed rule.

This proposed rule’s narrow interpretation of “political opinion” should not be enacted.   We stand in opposition to the proposed change.

Persecution: 8 CFR § 208.1(e); 8 CFR § 1208.1(e)

Past persecution and credible fear of future persecution are the bedrock of any asylum request.  Matter of Acosta defines persecution is defined as “a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.” 19 I&N Dec. at 222.

The proposed rule totally ignores that definition which has been refined over time.  It replaces that life saving definition with one that:

• emphasizes severity over duration
• must exist and be enforced
• cumulative harm is ignored, and
• there are no requirement for assessing harm to children.

Returning to the story in the previous section, what harm did Bernardo suffer in Honduras and en route to the United States with his mother?  There would be no requirement to ask that question or investigate further under the new rule.

“A voice was heard in Ramah, lamentation, weeping and great mourning, Rachel weeping for her children; she wouldn’t be comforted, because they are no more.” Matthew 2:18

Hear the voice of mother who will not be comforted.  The proposed rule 8 CFR § 208.1(e); 8 CFR § 1208.1(e) should not go into effect. 

Internal Relocation: 8 CFR § 208.13(b) (3); 1208.16; 8 CFR § 208.13(b) (3); 1208.16

Decisions regarding internal relocation currently rest upon the answers to three questions:

• Where would future persecution take place?
• Would the asylum seeker be able to safely relocate within another part of the country?
• Would the asylum seeker suffer persecution countrywide?

Additionally, the current rule considers other factors:

• ongoing civil strife within the country,
• administrative, economic, or judicial infrastructure,
• age, gender and health,
• social and familial ties,  and
• internal relocation is not possible if the government is the persecutor.

The proposed rule ignores the first four human factors and replaces them with:

• size of country,
• geographic location of persecution,
• geographic sphere of influence of alleged persecutors,
• number of alleged persecutors, and
• asylum seekers ability to relocate to United States.

Human factors would be replaced by cold statistical and financial factors.  Asylum seekers would bear the burden of proving they cannot relocate internally.

Over 2000 years ago, a young family was forced to flee the southern part of their country.  They could not go north, but had to a country to the west.

“Arise and take the young child and his mother, and flee into Egypt, and stay there until I tell you, for Herod will seek the young child to destroy him.” Matthew 2:13

Would this young family be granted asylum under the proposed rule?  That could not be answered with certainty under the proposed rule.  Compassion and certainty are not mutually exclusive. 

At the end of 2019, there were approximately 47 million internally displaced persons.  They were displaced by conflict and violence.[ii]  For them and others like them, the proposed rule should never go into effect.

Firm resettlement: 8 CFR § 208.15; 8 CFR § 1208.15

The proposed rule is egregious legally and morally.  It shifts the burden of proof from the EOIR and DHS with a combined budget of $725 million (EOIR $673 million[iii] and DHS $51.7 million[iv]) to asylum seekers with drastically less resources relying upon low-cost or pro-bono legal counsel or who appear pro-se in court.

Asylum seekers’ limited legal resources must contend with an expanded definition of “firm resettlement”.   If the asylum seeker has resided in another country for a year or more, even if there is no offer or pathway to permanent status, the asylum seeker would be considered firmly resettled and barred from asylum.   Asylum seekers included those who are refugees.  Ninety percent (90%) of refugees in Mexico are from El Salvador, Honduras, and Guatemala.[v]

For many asylum seekers, they will run out of time and become ineligible for asylum.

• As of September 2019, there were 339,836 affirmative asylum applications pending with USCIS. The government does not estimate the time it will take to schedule an initial interview for these asylum applicants, though historically the delay could reach four years.
• The backlog in U.S. immigration courts reached an all-time high in April 2020, with over 1.17 million open removal cases. On average, these cases had been pending for 734 days and remained unresolved.
• Individuals with an immigration court case who were ultimately granted relief—such as asylum—by February 2020 waited more than 930 days on average for that outcome. Illinois and Virginia had the longest wait times, averaging 1,300 days until relief was granted in the immigration case. [vi]

Even the Israelites who were in the desert would be denied entry into the United States under proposed rule.  Their 40 years of refugees wandering would disqualify them.   Enacting this rule will harm so many individuals and families.  Retract this proposed rule change.

Standard rule making process:

The proposed procedures are lengthy – 161 pages with 60 pages containing the actual procedures.  Human beings are the subject asylum requests.  Thirty days is not sufficient address the proposed rule changes.

During the second quarter this year, there were 120,495 asylum claims filed with 12,494 granted claims or 10% of claims granted by the Department of Justice. [vii] Those claims represent human being who must wait between 6 months and several years with undetermined status. [viii]

At the end of January 2019, there were 79.5 million displaced persons with 4.2 million awaiting the outcome of their asylum requests.  Additionally, over 77% of refugees are caught in long-term displacement.[ix]

No, 30 days is not a sufficient time for public comment.  This proposed rule should have had the standard 60 day public comment period.

Conclusion:

This proposed rule along with previous rules relating to fees and public charge have stained our nation, and imperiled the lives of numerous immigrants and refugees.  Let the stain be cleansed and peril removed. 

“Hope shows me that the machinery of darkness which our immigration enforcement has become is not permanent. There will be a day when all of this pain will be no more, when the walls of hatred come tumbling down, and when grace will transform the dark present into something better. But it is ours (yours) to undo…To transform the weight of the law into the sweetness of mercy. To stop the suffering.”   Bishop Mark J. Seitz of El Paso, Texas.[x]

You can begin to stop the suffering by rescinding this new proposed rule and procedures immediately.

As immigration advocates, descendants of immigrants and people of faith, we will continue welcoming, protecting, promoting, and integrating immigrants and refugees to our nation.  The words on the statue of Liberty will be lived in word and deed.

 “Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door! “   Emma Lazarus, November 2, 1883.

Sincerely,

John M. Kingery, Beaverton, Oregon, Villanova VIISTA 2020, German/Irish, Catholic

Kathleen Ann Williams, Beaverton, Oregon

Kimberly Dyer, New Jersey, Villanova VIISTA 2020

Eileen Sleva, Hillsboro, Oregon, Catholic

Cleo Reilly, Portland, Oregon, Irish/German, Catholic

Hector Hinjosa, Hillsboro, Oregon, Catholic

Rex Elliott, Laurel, Maryland, Roman Catholic

Kari Xylem Nilsen, Portland, Oregon, Humanist

Matthew Farrenkopf, Aloha, Oregon, Catholic

Tony Fuller Lansing Michigan Catholic

Susan Daley, Villanova Pa, VIISTA 2020

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I respectfully request all items listed below and associated links be read by the Office of Policy, Executive Office for Immigration Review and Desk Officer, U.S. Citizenship and Immigration Services, DHS and become part of the administrative record.

[i] Catholic Church (2004), Compendium of the Social Doctrine of the Church, §396-398, United State Conference of Catholic Bishops, http://www.vatican.va/roman_curia/pontifical_councils/justpeace/documents/rc_pc_justpeace_doc_20060526_compendio-dott-soc_en.html#Authority%20as%20moral%20force

[ii] Migration Portal, Forced migration or displacement, https://migrationdataportal.org/themes/forced-migration-or-displacement, July 8, 2020

[iii] Executive Office for Immigration Review, FY 2020 Budget Request at a Glance, https://www.justice.gov/jmd/page/file/1142486/download#:~:text=Resources%3A,the%20nation’s%20immigration%20court%20system

[iv] U.S. Department of Homeland Security, FY 2020 Budget in Brief, https://www.dhs.gov/sites/default/files/publications/19_0318_MGMT_FY-2020-Budget-In-Brief.pdf

[v] USA for UNCHR, Refugee Statistics, https://www.unrefugees.org/refugee-facts/statistics/

[vi] American Immigration Council, Fact Sheet: Asylum in the United States, https://www.americanimmigrationcouncil.org/research/asylum-united-states, June 11, 2020.

[vii] The United States Department of Justice, Executive Office for Immigration Review Adjudication Statistics: Total Asylum Applications, https://www.justice.gov/eoir/page/file/1106366/download, April 15, 2020.

[viii] National Immigration Forum, Fact Sheet: U.S. Asylum Process, https://immigrationforum.org/wp-content/uploads/2018/08/Asylum-Fact-Sheet-_Update_Final.pdf, January 10, 2019.

[ix] Refugee and Migrant Education (RME) Network, The New 1%, http://rmenetwork.org/the-new-one-percent/, June 18, 2020.

[x] Catholic Sentinel, Asylum at the border is ‘effectively over,’ El Paso bishop says, https://www.catholicsentinel.org/Content/News/Nation-and-World/Article/Asylum-at-the-border-is-effectively-over-El-Paso-bishop-says/2/34/40289.