Law – dwkcommentaries

Biden Administration Announces Proposed Restrictions on Asylum Applications

On February 21, the Biden Administration announced a proposed rule that would require rapid deportation of an immigrant at the U.S. border who had failed to request protection from another country while en route to the U.S. or who had not previously notified the U.S. via a mobile app of their plan to seek asylum in the U.S. or who had applied for the new U.S. humanitarian parole programs for certain countries (Cuba, Haiti, Nicaragua and Venezuela). This rule will take effect on May 11, with the expected termination that day of Title 42 that allowed the U.S. to swiftly expel migrants at the U.S. border.[1]

This announcement stated that the new rule would “incentivize the use of new and existing lawful processes and disincentivize dangerous border crossings, by placing a new condition on asylum eligibility for those who fail to do so. These steps are being taken in response to the unprecedented western hemispheric migration challenges – the greatest displacement of people since World War II – and the absence of congressional action to update a very broken, outdated immigration system.”

DHS Secretary Alejandro N. Mayorkas stated, “We are a nation of immigrants, and we are a nation of laws. We are strengthening the availability of legal, orderly pathways for migrants to come to the United States, at the same time proposing new consequences on those who fail to use processes made available to them by the United States and its regional partners. As we have seen time and time again, individuals who are provided a safe, orderly, and lawful path to the United States are less likely to risk their lives traversing thousands of miles in the hands of ruthless smugglers, only to arrive at our southern border and face the legal consequences of unlawful entry.”

Attorney General Merrick B. Garland added the following: “The Department of Justice is responsible for administering the Nation’s immigration courts and ensuring that claims are adjudicated expeditiously, fairly, and consistent with due process. This proposed rule will establish temporary rules concerning asylum eligibility in those proceedings when the Title 42 order is lifted. We look forward to reviewing the public’s comments on this proposed rule.”

The Administration says that without this new rule, immigration at the U.S. border would “increase significantly, to a level that risks undermining the … continued ability to safely, effectively and humanely enforce and administer U.S. immigration law.”

Reactions to the New Rule[2]

“In a joint statement, Democratic Sens. Bob Menendez (N.J.), Cory Booker (N.J.), Ben Ray Luján (N.M.) and Alex Padilla (Calif.) called on the administration to drop the proposed rule. “We are deeply disappointed that the administration has chosen to move forward with publishing this proposed rule, which only perpetuates the harmful myth that asylum seekers are a threat to this nation. In reality, they are pursuing a legal pathway in the United States.”

A similar reaction came from leading Democratic House members (Rep. Jerrold Nadler and Pramila Jayapal). In their joint statement, they expressed “deep disappointment” with the newly proposed rule and stated, “The ability to seek asylum is a bedrock principle protected by federal law and should never be violated. We should not be restricting legal pathways to enter the United States, we should be expanding them.”

“Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, said they applaud the expanded pathways for those four countries announced in January but question where that leaves migrants from other countries. She says it favors people with resources who can afford the necessary requirements of finding a financial sponsor and buying a plane ticket to the U.S. And some people are so at risk, they simply cannot wait in their country for a humanitarian parole slot. Critics have also highlighted technological problems with the app.”

“The Federation for American Immigration Reform said that the rule isn’t designed to halt migrants as much as make the process more orderly: “In other words, the real objective is not to end large-scale asylum abuse, but rather to get them through the next election cycle.”

Justice Action Center’s counsel, Jane Bentrott, said the proposed rule “would send asylum seekers back to danger, separate families, and cost lives, as human rights advocates have been asserting for weeks. It is in direct contravention of President Biden’s campaign promises to reverse Trump’s racist, xenophobic immigration policies, and give all folks seeking safety a fair shot at asylum.”

Lindsay Toczylowski, the executive director of Immigrant Defenders Law Center in California, criticized the inept operations of the government’s online system for scheduling an asylum application interview. “It’s almost like a lottery. You have to win a ticket to be able to seek protection in the U.S.”

An ACLU attorney, Lee Gelernt, who successfully challenged similar efforts by the Trump Administration, said that Biden’s new proposed rules had the same legal flaws as the Trump rules and that the ACLU would sue to block the latest move.

Although this blogger has been a pro bono attorney for asylum applicants and more generally an advocate for strong U.S. laws and procedures for same and although he is sympathetic to the above criticisms of the new proposed rules, it must be acknowledged that there is nothing in the international treaty or U.S. statutes on asylum that requires the U.S. to provide asylum interviews at the border to undocumented immigrants. Moreover, this and related changes in U.S. asylum laws and procedures are counterbalanced by new procedures in U.S. law for asylum or parole applications in Central American countries for at least some of these immigrants (Cuba, Haiti, Nicaragua and Venezuela).

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[1] DHS and DOJ Propose Rule to Incentivize Lawful Migration Processes, DHS (Feb. 21, 2023); Jordan, Biden Administration Announces New Border Crackdown, N.Y. Times (Feb. 21, 2023); Parti & Caldwell, Biden Administration Proposes New Limits on Asylum Seekers, W.S.J. (Feb. 21, 2023); Miroff, Asylum seekers who cross U.S. border illegally face new Biden rule, Wash. Post (Feb. 21, 2023); Santana, How Biden asylum rule affects immigration, compares to Trump, Wash. Post (Feb. 22, 2023).

[2] See n.1.

U.S. High-Tech Layoffs Threaten Immigrants with Temporary Visas

Many immigrant workers, primarily Indian nationals, are in the U.S. on temporary visas and after being laid off, their visas will expire after 60 days and subject them to deportation unless they are rehired. Many of these immigrants are highly skilled and educated, and some have been here for years, and some for decades. As of 2019, there were almost 600,000 of these immigrants in the U.S. [1]

These layoffs are part of the U.S. tech sector’s recent spiraling downward with major companies like Google, Meta and Amazon firing workers by the thousands.

Some advocacy groups and Democratic lawmakers have been lobbying the Departments of Homeland Security and U.S. Citizenship and Immigration Services to extend the length of time that high-tech visa holders can remain in the country after losing their jobs, from 60 to 120 days.

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[1] Werner, High-skilled visa-holders at risk of deportation amid tech layoffs, Wash. Post (Feb. 24, 2023)

Derek Chauvin’s Ex-Wife Pleads Guilty to Income Tax Evasion

In May 2020, only two days after Derek Chauvin, an ex-Minneapolis police officer, was charged with crimes under Minnesota law for the killing of George Floyd, Kellie Chauvin, Derek’s wife, filed for divorce in Minnesota state court. And in July 2020 the Chauvins were charged in Minnesota state court with nine felony counts of state income tax evasion, underreporting more than $464,000 of income and owing the State of Minnesota nearly $38,000 of state income taxes. Both of them in November 2021 pleaded not guilty to these charges. [1]

On February 24, 2023, Kellie Chauvin, now the ex-wife of Derek, in Minnesota state court pleaded guilty to state felony charges of aiding and abetting false or fraudulent state income tax returns for 2014-19 and not paying such taxes for 2016-18.[2]

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[1] The Chauvins’ personal legal problems were discussed in the following prior posts: Derek Chauvin’s Divorce Petition Raises Questions (July 8, 2020); Chauvin and Wife Now Charged with Minnesota Tax Crimes (July 22, 2020); State Court Rejects Chauvin Divorce Settlement (Nov. 20, 2020); Complications in Derek Chauvin Divorce Case (Jan. 20, 2021); Comment: Court Approves Redacted Chauvin Divorce Agreement (Feb. 4, 2021); Derek Chauvin and Ex-Wife Plead Not Guilty to Tax-Evasion Charges (Nov. 6, 2021).

(2) Hyatt, Derek Chauvin’s ex-wife pleads guilty to tax evasion, StarTribune (Feb. 24, 2023)

Other States Join Iowa in Encouraging Immigration To Combat Aging, Declining Populations

A prior post discussed the various ways the Iowa State Government was encouraging the resettlement of refugees and other immigrants in their state to combat its shortage of workers.[1]

Now the Republican governors of Indiana (Eric Holcomb)and Utah (Spencer Cox) have jointly voiced the same desire. They start their appeal as follows: “Indiana has about 220,000 open jobs right now and Utah has 107,000, according to the most recent federal data — more than 6 percent of all jobs in both states. With strong business and tax environments, we like our chances in the competition for job-seekers moving from other states. But they won’t be enough to fill all of those vacancies. We also need immigrants who are ready to work and help build strong communities.” (Emphasis added.)[2]

To meet that need these two governors call on Congress to enable states “to sponsor whatever immigrants serve the needs of their communities. . . . Rapidly declining birthrates and accelerating retirements across the United States mean that our states’ already wide job gaps will grow to crisis proportions without more [immigrants].”

Therefore, these two governors suggest that states be empowered to sponsor immigrants for resettlement “from a pool of new applicants from abroad and from the ranks of current asylum seekers [for refugee status].” They also recognize that there must be “rules to determine who can come in and how, and who can stay; unflinching enforcement of such rules; and some kind of review-and-repeat process to assure that the United States offers paths to citizenship based on our evolving needs. The rules must include a practical approach to illegal immigrants who came to this country as children. And enforcement must include firm control of all entry points.”

Conclusion

Governors Holcomb and Cox added that they believe other states will join this effort from comments they heard at last week’s National Governors Association meeting.

This is good news!

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[1] Iowa State Government Encouraging Refugee and Migrant Resettlement, dwkcommentaries.com (Feb. 3, 2023).

[2] Holcomb & Cox, To solve out national immigration crisis, let states sponsor immigrants, Wash. Post (Feb. 21, 2023).

U.S. Supreme Court Cancels Argument Over Title 42 Immigration Case

On February 7, the Biden Administration advised the Supreme Court, “The anticipated end of the public health emergency on May 11, and the resulting expiration of the operative Title 42 order, would render . . . moot” the case before the Court over Title 42.[1]

Soon thereafter the Supreme Court cancelled the arguments in the case scheduled for March 1. As a result, the Court is expected to dismiss the case and cancel the order staying the rescission of Title 42 after the administration canels Title 42. [2]

[1] Liptak, Biden Officials Tell Supreme Court That Title 42 Case Will Soon Be Moot, N.Y. Times (Feb. 7, 2023).

[2] Liptak, Supreme Court Cancels Arguments in Title 42 Immigration Case, N.Y. Times (Feb. 16, 2022). This litigation over Title 42 was discussed in a prior post. (Congress Fails to Adopt Important Immigration Legislation, dwkcommentaries.com (Dec. 28, 2022);immigration Comment: Speculative Interpretation of Supreme Court Decision on Title 42 Case, dwkcommentaries.com (Dec. 29, 2022)..)

A Contemporary Perspective on the U.S.-Dakota War of 1862

This blog previously explored various aspects of the 1862 U.S.-Dakota War that was fought in the State of Minnesota.[1]

Sarah Wakefield’s Contemporaneous Discussion of the War[2]

A contemporary perspective on that war was offered 160 years ago by Sarah Wakefield, a 32-year old white wife of a medical doctor assigned to the Upper Sioux Agency at the time of the war and who along with her four-year old son and 20-month-old daughter were held captives by the Dakota for the war’s six-weeks duration.

After the war ended, she testified on behalf of the Dakota people in criminal proceedings and thought her testimony had saved a Dakota farmer named Chaska who had been especially helpful to her and the children. Subsequently she learned that this Indian named Chaska had been hanged on December 26, 1862, apparently mistaken for another Indian with the same name.

A year later in 1863 Wakefield published a book about this experience, “”Six Weeks in the Sioux Tepees.” There she insisted her captors had treated her and the children well. They had saved her from sexual assault and had placed them in hiding during the war’s most dangerous moments. The Indians also had provided her with a blanket when she was cold.

Her book also criticized Col. Henry Sibley’s delays in rescuing the captives as well as the U.S. inhumane policies that had prompted a militant faction of the starving Dakota to wage war. Wakefield’s words brought on a lot of criticism of her from U.S. soldiers and officials. But Wakefield said, “My object was to excite sympathy for the Indians and in so doing, the soldiers lost all respect for me, and abused me shamefully, but I’d rather have my own conscience than that of these persons who turned against their protectors, those that were so kind to them in that great time of peril.”

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[1] See these posts to dwkcommentaries: The U.S.-Dakota War of 1862 (Nov.3, 2012); White Settler’s Contemporaneous Reaction to the U.S.-Dakota War of 1862 (Nov. 6, 2012); Commemoration of the 150^th Anniversary of the U.S.-Dakota War of 1862 (Nov. 9, 2012); The U.S.-Dakota War Remembered by Minneapolis’ Westminster Presbyterian Church (Part I) (Nov. 18, 2012); The U.S.-Dakota War Remembered by Minneapolis’ Westminster Presbyterian Church (Part II) (Nov. 25, 2012); The U.S.-Dakota War Remembered by Minneapolis’ Westminster Presbyterian Church (Part III) (Nov. 29, 2012); Personal Reflections on the U.S.-Dakota War of 1862 (Dec. 10, 2012); Commemoration of the 150^th Anniversary of the Hanging of the “Dakota 38” (Dec.26, 2012); Minneapolis and St. Paul Declare U.S.-Dakota War of 1862 “Genocide” (Jan. 12, 2013); President Abraham Lincoln’s Involvement in the U.S.-Dakota War of 1862 (May 21, 2013); U.S. Military Commission Trials of Dakota Indians After the U.S.-Dakota War of 1862 (June 11, 2013); President Abraham Lincoln’s Involvement in the Military Commission’s Convictions and Sentences of the Dakota Indians (June 24, 2013).

[2] Brown, Sarah Wakefield’s 160-year-old account still illuminates our understanding of the U.S.-Dakota War, StarTribune (Feb. 11, 2023).

More Details on U.S. and Other Countries’ Worker Shortages

This blog already has discussed the current declining and aging populations of many countries, and their impact on employment in those countries. [1]

Here are some additional articles on these subjects.

Wall Street Journal Analysis [2]

“Employers in healthcare, education, leisure and hospitality and other services such as dry cleaning and automotive repair . . . [accounted] for 63% of all [recent U.S,] private-sector job gains. .. . In January alone, restaurants and bars added a seasonally adjusted 99,000 jobs. The healthcare industry grew by 58,000, and retailers added 30,000 jobs.”

This result is helped by “more workers . . .searching for jobs: bigger paychecks and benefits, diminishing fear of getting sick, and financial worries amid high inflation.” Also “more women are flowing back into the labor force, which could help service-sector employers fill positions that traditionally have been held by women.”

Increased U.S. Immigration [3]

Last year U.S. net immigration increased by about a million people, and the “foreign-born work force grew much more quickly than the U.S.-born work force.” This “helped power the job recoveries in leisure and hospitality and in construction, where immigrants make up a higher share of employment, and where there were bigger increases in wages and job vacancies.”

This employment result happened despite the inadequate staffing of the U.S. immigration agencies, resulting in huge delays in acting on asylum applications as well as those for green cards and work permits. “One of the few industries with unlimited immigrant visas is agriculture, where the number of guest worker visas “has risen by double-digit percentages over each of the last few years, reaching 371,000 in 2022.”

Difficulties in Raising Birth Rates [4]

Echoing the pessimism of Ross Douthat of the New York Times caused, in part, by China’s recent declining birth rate and population, other Time’s authors say, “History suggests that once a country crosses the threshold of negative population growth, there is little its government can do to reverse it. And as a country’s population grows more top-heavy, a smaller, younger generation bears the increasing costs of caring for a larger, older one. . . . That’s because the playbook for boosting national birthrates is a rather thin one. Most initiatives that encourage families to have more children are expensive, and the results are often limited. Options include cash incentives for having babies, generous parental leave policies and free or subsidized child care.”

This more recent Times article claims, “many young Chinese are not interested in having large families. Vastly more young Chinese people are enrolling in higher education, marrying later and having children later. Raised in single-child households, some have come to see small families as normal. But the bigger impediment to having a second or third child is financial, [and] many parents cite the high cost of housing and education as the main obstacle to having more children.”

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[1] See these posts to dwkcommentaries.com: Another Defining Challenge of the 21^st Century (Jan. 28, 2023); Skepticism About Douthat’s Defining Challenge of the 21^st Century (Jan. 30, 2023); Comment: Developments in Africa and Italy Accentuate Douthat’s Concerns (Jan. 31, 2023); Iowa State Government Encouraging Refugee and Migrant Resettlement (Feb. 3, 2023);Comment: National Worker Shortages in U.S. (Feb. 3, 2023); Economists Surprised by January’s New Jobs Data (Feb. 4, 2023); Sub-Saharan Africa Is ‘New Epicenter’ of Extremism, Says UN, (Feb. 8, 2023); Migrant Workers Being Paid Premium Wages in U.S. Tight Labor Market, (Feb. 8, 2023).

[2] Cambon & Smith, Mass Layoffs or Hiring Boom? What’s Actually Happening in the Jobs Market, W.S.J. (Feb. 9, 2023).

[3] DePills, Immigration Rebound Eases Shortage of Workers, Up to a Point, N.Y. Times (Feb. 6, 2023).

[4] Jacobs & Paris, Can China Reverse Its Population Decline? Just Ask Sweden, N.Y. Times (Feb. 9, 2023).

Iowa State Government Encouraging Refugee and Migrant Resettlement

As a native Iowan who was born and raised in the State and as a supporter of refugees and immigrants, I was pleasantly surprised to learn from an article in the New York Times that Iowa’s state government has adopted and is implementing various programs to encourage these people’s resettlement in the State. [1] These conclusions were corroborated by that article and the preliminary research cited in this post.

The Iowa State Government has programs encouraging resettlement in the State by refugees and other migrants. The state’s “Republican governor, Kim Reynolds, and the state’s Department of Health and Human Services recently announced a program that supports refugees from around the world with a focus on Afghan people in particular. That includes providing grants to organizations that enhanced ‘community integration, English proficiency, digital literacy, banking and financial planning, transportation, health and wellness, services for older refugees and youth supports.” [2]

This effort is driven, in part, by Iowa’s need for more workers. “Iowa alone has over 75,000 job openings . . .[that] are depleting the state’s ability to meet growing manufacturing and service demands. Businesses are begging for workers at local economic development meetings. Employers are struggling particularly with shortages in key mid-skill industries, like health care, information and technology and tourism and hospitality.”

This article commends the following proposed immigration programs for Iowa:

Federal authorization of states to devise guest-worker programs under the auspices of the federal government (Department of Homeland Security) and state governments along the lines of a bill offered by U.S. Senator Ron Johnson (Rep., WI).
The U.S. and other countries could establish bilateral immigration agreements that “would allow U.S. employers to train workers to obtain valuable skills . . . either in the United States or abroad, and then workers could come to the U.S. states that need them.”
Like the State of Washington, revise Iowa’s licensing laws to create a limited license for foreign medical graduates.

One of the authors of this article is Iowan David Oman, who was chief of staff for Iowa Republican governors Robert D. Ray (1969-83) and Terry Branstad (1983-99 & 2011-17) as well as Chair of the Iowa Republican Party (1995-1993) and the 1998 Republican gubernatorial candidate for Iowa . Other authors are Iowan Robert Leonard, the news director of two Iowa radio stations, and Kristie DePena, the vice president for policy and the director of immigration policy at the Niskanen Center in Washington, D.C. and the holder of a J.D. degree from the University of Iowa College of Law.[3]

Niskanen Center[4]

The Niskanen Center asserts that it believes, “Immigration policy is not just about how we treat others; it has direct implications for Americans. Done well, immigration policy reform can protect family values, strengthen national security, reduce unemployment, spur innovation, stimulate competition, increase public safety, enhance the U.S. economy, reinforce international relations, and help those most in need. Evidence consistently shows that innovation and entrepreneurship are good for America. Supporting legal immigration through refugee resettlement programs like DACA, green cards, and more is fundamental to our success as a nation; and our humanitarian policies are a cornerstone of our nation. But, perhaps most importantly, we believe that with very few exceptions, the immigrants coming to America do so for the right reasons, and we benefit by welcoming them.” More specifically, the Center focuses on the following areas of U.S. immigration policy reform:

“Encouraging the involvement of Americans in refugee sponsorship and resettlement and reforming our asylum system to expand capacity and enhance processing.”
“Creating and enhancing opportunities for innovation and frontier growth in America through legalization, a pathway to citizenship for Dreamers, and reformed options to work in the U.S.”
“Enhancing domestic and international security and diplomacy through soft power and national security pathways.”
“Repairing our immigration adjudication system by creating independent courts and reforming the criminalization and prosecution of immigrants in the states.”
“Encouraging the involvement of Americans in refugee sponsorship and resettlement and reforming our asylum system to expand capacity and enhance processing.”
“Creating and enhancing opportunities for innovation and frontier growth in America through legalization, a pathway to citizenship for Dreamers, and reformed options to work in the U.S.”
“Enhancing domestic and international security and diplomacy through soft power and national security pathways.”
“Repairing our immigration adjudication system by creating independent courts and reforming the criminalization and prosecution of immigrants in the states.”
“Encouraging the involvement of Americans in refugee sponsorship and resettlement and reforming our asylum system to expand capacity and enhance processing.”
“Creating and enhancing opportunities for innovation and frontier growth in America through legalization, a pathway to citizenship for Dreamers, and reformed options to work in the U.S.”

Reactions

Congratulations to the government of the State of Iowa for this strong support for refugees and other immigrants.

However, the authors of this article fail to recognize the powerful resistance to immigration efforts in the U.S. Senate by Iowa’s senior U.S. Senator, Republican Charles Grassley. For example, in the last session of Congress Grassley blocked the passage of the Afghan Adjustment Act, which would have prevented Afghan evacuees in the U.S. from being stranded without legal residency status when their humanitarian paroles expire in August 2023 and would have allowed them to apply for U.S. citizenship. [5]

The citizens of Iowa need to press Grassley to reverse course and immediately press for passage of the Afghan Adjustment Act and to take other steps to encourage resettlement of immigrants in the State.

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[1] Over 75,000 Job Openings in Iowa Alone. Millions of Refugees Seeking Work. Make the Connection, N.Y. Times (Feb.2, 2023)..

[2] See n.1; Iowa HHS Expands Support for Refugees; Announces RFP to provide wraparound supports, and other key initiatives (Jan. 6, 2023); Iowa Dep’t of Health & Human Resources, Iowa HHS Expands Support for Refugees; (Jan. 6, 2023); Iowa Dep’t of Health & Human Resources; Afghanistan Resources; Iowa Dep’t of Health & Human Resources, Ukraine Resources; Iowa Dep’t of Health & Human Resources, Venezuelan Resources; Iowa Dep’t of Health & Human Resources, History of the Bureau of Refugee Services; Iowa Dep’t of Health & Human Resources, Frequently Asked Questions.

[3] David Oman, Iowa Capital Dispatch.

[4] Niskanen Center, Our Mission; Niskanen Center, Immigration: What We Believe; Niskanen Center Annual Report 2022.

[5] Amiri (AP), Afghan refugees’ status uncertain after U.S. Sen. Chuck Grassley blocks residency bill, Des Moines Register (Dec. 30, 2022). See also these posts to dwkcommentaries.com: Need To Prod Congress To Enact the Afghan Adjustment Act (Dec. 17, 2022); Apparent Failure To Enact Bipartisan Immigration Bills (Dec. 18, 2022); Comment: Retired U.S. Military Leaders Support Afghan Adjustment Act (Dec. 19, 2022); Congress Fails To Adopt Important Immigration Legislation (Dec. 28, 2022); Comment: Other Reactions to Failure To Adopt Immigration Legislation (Dec.31, 2022).

Briefs in Tou Thao’s State Court Criminal Case Over Killing of George Floyd

October 24, 2022, was the scheduled date for starting the state criminal trial of former Minneapolis Police officers Tou Thao and J. Alexander Kueng for the killing of George Floyd. Instead that day Thao told Hennepin County District Court Judge Peter Cahill that he was giving up his right to a jury trial and agreeing instead to a trial only on the aiding and abetting the second-degree manslaughter charge by stipulated evidence. (That same day Kueng and the prosecution announced to the Court that they had negotiated an agreement for a guilty plea by Kueng.) [1]

Thus, January 30, 2023, marked the filing of the parties’ briefs in the Thao state criminal case. [2]

Thao’s Brief

Thao’s attorney argued that Thao is innocent of criminal wrongdoing and should be acquitted on state charges of aiding and abetting murder and manslaughter. This is the necessary conclusion from the state’s failing to prove beyond a reasonable doubt that Thao knew that Chauvin was committing a crime or that Thao intended to aid in a crime.

Thao “reasonably believed” that Floyd was experiencing a controversial set of symptoms known as “excited delirium” and that the actions he took at the scene were with the intention of helping to get Floyd medical attention faster because he was trained to view excited delirium as life threatening.. Every one of Thao’s actions was done based upon the training he received from the Minneapolis Police Department.

Based on his training and experience, “Thao reasonable believed that Floyd could be experiencing excited delirium and that Chauvin was acting within the bounds of hi legal authority because MPD repeatedly had trained its officers to do just that. In addition, Thao acted repeatedly and intentionally to get [Floyd] the proper medical attention

Thao acknowledged he heard onlookers becoming more anxious about Floyd’s condition and calling on officers to check his pulse. But he said his role was control of the crowd of about 15 bystanders. While he acknowledged hearing Floyd saying, “I can’t breathe,” he said he didn’t know there was anything seriously wrong with him even as an ambulance took him away.

Prosecution’s Brief

Prosecutors argued in their brief that Thao “acted without courage and displayed no compassion” despite his nearly nine years of experience and that he disregarded his training even though he could see Floyd’s life slowly ebbing away.

Prosecutor Matthew Frank disputed the excited delirium defense, writing that even witnesses who believe excited delirium exists testified previously that Floyd displayed none of the symptoms.

“Thao was aware that his three colleagues were on top of Floyd, and were restraining Floyd in the prone position. Thao knew that this prone restraint was extremely dangerous because it can cause asphyxia — the inability to breathe — the exact condition from which Floyd repeatedly complained he was suffering. Yet Thao made the conscious decision to aid that dangerous restraint by actively encouraging the other three officers, and assisting their crime by holding back concerned bystanders.”

Conclusion

Cahill has 90 days to rule and hand down a sentence if he finds Thao guilty. He’ll base his decision on evidence agreed to by both sides — exhibits and transcripts from Chauvin’s 2021 murder trial in state court and the federal civil rights trial of Thao, Kueng and Thomas Lane last year. Thao was specifically convicted then of depriving Floyd of his right to medical care and of failing to intervene and stop Chauvin.

If Thao is convicted of aiding and abetting manslaughter, Minnesota guidelines recommend four years on the manslaughter count. He would serve his state term concurrent with his federal sentence.

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[1] Kueng and State Agree on Guilty Plea while Thao Agrees to Judge Cahill’s Deciding His Case on Existing Record, dwkcommentaries.com (Oct. 24, 2022).

[2] Karnowski, Fate of last ex-cop charged in Floyd murder, AP News (Feb. 1. 2023); State’s Closing Argument, State v. Thao, Court File No. 27-
CR-20,12949, Henn. County Dist. Ct. (Jan. 31, 2023); Defendant Thao’s Closing Argument, Court File No. 27-CR-20,12949, Henn. County Dist. Ct. (Jan. 31, 2023).

Need To Improve U.S. Asylum System

The U.S. asylum and immigration system is broken and needs to be fixed, so says a Washington Post editorial. [1]

It points out that the current system “was being rendered untenable by the sheer number of migrants crossing the U.S.-Mexico border in recent years, each with a legal right to press an asylum claim. Between those assigned to Justice Department immigration courts and Department of Homeland Security asylum officers, the backlog of cases has reached roughly 1.6 million, according to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. It can take years just to get a hearing in immigration court.”

“Instead of the selective, humanitarian adjunct to general immigration flows that the law intended, asylum is evolving into an open-ended parallel system. The backlog encourages people to make a dangerous and expensive trip to the U.S. border, knowing that — even if their asylum cases are weak — they can live and work in the United States for years pending a ruling. Even those whose claims are rejected, as they were in most final rulings over the past decade, seldom face prompt removal. Meanwhile, those with strong claims wait longer than they should.”

Given congressional inability to develop and enact a comprehensive reform statute, the Biden Administration has developed short-term fixes. One announced on January 5^th related to attempted border crossings by Cubans, Haitians, Nicaraguans and Venezuelans, resulting in a 97 percent decrease in attempted border crossings by these people. Another one from 2022 allowed asylum officers from the Department of Homeland Security to determine migrants eligibility for asylum, subject to potential appeals to an immigration judge, but DHS lacks personnel to handle many cases.

Conclusion

As a former pro bono asylum lawyer, this blogger has lamented these many problems with the U.S. immigration and asylum system and the inability and refusal of Congress to take action to address these problems, which now seems exacerbated with the Republicans barely controlling the House of Representatives.[2]

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[1] Editorial, Asylum has become a parallel immigration system. Here’s how to fix that, Wash. Post (Jan. 31, 2023).

[2] See these posts to dwkcommentaries.com: Need To Prod Congress To Enact the Afghan Adjustment Act (Dec. 17, 2022); Apparent Failure To Enact Bipartisan Immigration Bills (Dec. 18, 2022); Congress Fails to Adopt Important Immigration Legislation (Dec. 28, 2022); Department of Homeland Security Announces Important Proposed Rules To Improve Immigration Laws and Border Security (Jan. 5, 2023); President Biden’s Argument for New Asylum/Border Policy (Jan. 7, 2023); U.S. Adopts Confusing New Program for Resettling Certain Foreigners (Jan. 20, 2023). See also List of Posts to dwkcommentaries—TOPICAL: LAW (REFUGEE AND ASYLUM).