Family Detention, Raids, Expediting Cases Fail To Deter Scared Central Americans!

“Immigration advocates have repeatedly criticized the Obama administration for its increased reliance on detention facilities, particularly for Central American families, who they argue should be treated as refugees fleeing violent home countries rather than as priorities for deportation.

They also say that the growing number of apprehended migrants on the border, as reflected in the new Homeland Security figures, indicate that home raids and detentions of families from Central America isn’t working as a deterrent.”


The “enforcement only” approach to forced migration from Central America has been an extraordinarily expensive total failure. But, the misguided attempt to “prioritize” cases of families seeking refuge from violence has been a major contributing factor in creating docket disfunction (“Aimless Docket Reshuffling”) in the United States Immigration Courts.  And, as a result, cases ready for trial that should have been heard as scheduled in Immigration Court have been “orbited” to the end of the docket where it is doubtful they ever will be reached.  When political officials, who don’t understand the Immigration Court and are not committed to its due process mission, order the rearrangement of existing dockets without input from the trial judges, lawyers, court administrators, and members of the public who are most affected, only bad things can happen.  And, they have!



As Federal Hiring Freeze Looms, The Chickens Might Be Coming Home To Roost At The Beleaguered U.S. Immigration Court System — More than 20% Of Judicial Vacancies Unfilled!

“Leaders at these agencies are filling open positions with transfers and outside hires and are making internal promotions before Trump takes office Jan. 20, according to internal documents and interviews.

The hiring could increase tensions between the Trump transition team and the Obama administration — a relationship that has grown worse in recent days due to disagreements over how the United States should handle its relationship with Israel and the issuance of new sanctions against Russia over its role in hacking incidents tied to the election.

Sean Spicer, the incoming White House press secretary, said in an interview late Friday that an agreement was struck in November that no new hires would be made after Dec. 1.

“After the election, the current administration notified us there would be a hiring freeze as of Dec. 1,” he said. “The understanding was that there would be a full accounting of anyone put on the payroll after then.”

White House Office of Management and Budget spokeswoman Shannon Buckingham said in an email early Saturday, “On Dec. 7, the administration imposed a moratorium on the hiring of senior executives within the civil service, known as the Senior Executive Service or SES.”

“This policy is consistent with previous transitions and is intended to ensure that incoming agency heads have the opportunity to make or approve executive hiring decisions that will impact the agency’s performance in the next administration,” she added.”


As I have mentioned before, the U.S. Department of Justice’s (“DOJ’s”) Executive Office for Immigration Review (“EOIR”), which administers the U.S. Immigration Court System, is on the verge of leaving at least 78 U.S. Immigration Judge positions unfilled at the end of the Obama Administration.  As of November 8, 2016, EOIR had filled just 296 of its authorized and funded 374 Immigration Judge vacancies. However, with a number of year-end retirements among the Immigration Judge Corps, the actual number of vacancies is almost certainly exceeds that previously announced.

Given that the U.S. Immigration Courts are struggling with a backlog of well over 500,000 cases — more than two years of work for 296 Immigration Judges, even assuming that they were all trained and fully productive, and that no new cases were filed — the lack of urgency in filling these judicial positions seems unusual, to say the least.

Over the past two Administrations, the DOJ has turned a Civil Service hiring system into a multi-tiered bureaucratic quagmire resulting in a hiring cycle that in too many cases substantially exceeds the much-criticized Senate confirmation process for Article III Federal Judges. But, the multiple layers of bureaucracy haven’t actually improved hiring quality.

Conspicuously absent from the process is meaningful input from anyone who actually practices in, appears before, sits on, or “consumes” the “judicial product” of the Immigration Courts (like judges of the U.S. Courts of Appeals who review final decisions from the Immigration Courts).   Not surprisingly, the results of this opaque bureaucratic exercise have been heavily weighted toward new Immigration Judges from government backgrounds, to the disadvantage of those with private practice, academic, or non-governmental organization experience.

While the claimed “complexity” of Federal background checks and security clearances sometimes is blamed for the delays, that is, in plain terms, “poppycock.” The clearance process goes exactly as fast as the Attorney General tells it to go. Those of us who are familiar with the process, and have actually participated in it, know that it is a series of largely ministerial tasks, which with proper “motivation” can be accomplished in a matter of days, rather than months. The idea that any cabinet officer normally would wait a year or more to bring on needed talent from the private sector to fill a critical senior position is simply preposterous. In the past, senior level positions at EOIR and the DOJ, including Immigration Judges and Appellate Immigration Judges who serve on the Board of Immigration Appeals, were filled with candidates from outside the government in a fraction of the time IJ hiring currently takes.

As noted in the Washington Post article, the Trump Administration has announced an intention to impose an immediate hiring freeze. Immigration Judge vacancies might, or might not, be exempted as “public safety positions.” Nobody knows for sure.

U.S. Immigration Judges are senior Civil Service officials, with their own senior pay scale established by Congress. Immigration Judges certainly are equivalent to the Senior Executive Service positions that the Obama Administration appears to have agreed to informally freeze as of December 1, 2016, according to the article. Even if DOJ belatedly tries to rush new appointments through prior to January 20, it is far from clear that the incoming Administration would be legally bound to honor such last minute appointments, let alone outstanding offers.

The chickens might be coming home to roost for the DOJ’s and EOIR’s lackadaisical administration of the U.S. Immigration Courts. And, at this point, it could be too late to solve this self-created disaster. If so, in addition to those who might reasonably have expected to receive Immigration Judge appointments, the real losers will be due process and the American people.






Will General Kelly Be A Voice Of Reason at DHS?

Naureen Shah, director of security and human rights at Amnesty International USA, writes:

“While at Southern Command, Kelly invited critiques from human rights groups. Every year, he asked Amnesty International and other organizations to join him for a frank roundtable discussion. After one meeting, he took me aside to explain his point of view and hear me out. Dialogue and decency: In today’s hyper-polarized political climate, these are as rare as unicorns.

And they matter. If I could talk to Kelly today, I think he’d listen. I would tell him that people are afraid. Activists worry that if they speak out, the government could retaliate or put them under surveillance. Trump’s idle tweets about stripping people of citizenship for flag-burning are eerily reminiscent of foreign dictators threatening to jail people for peaceful dissent.”



Will There Be a Beer Cooler on Wheels in Your Future?

As long as it’s loaded with beer, can’t be all bad!

“Designers of futuristic cityscapes envision airborne drones dropping off your packages and driverless cars taking you to work. But the robotic-delivery invasion already has begun — in the form of machines that look like wheeled beer coolers scooting along the sidewalks.

The robots — developed by a company with a name straight out of science fiction, Starship Technologies — will be showing up any day in Washington and in Redwood City, Calif. They may soon be found in up to 10 U.S. cities, ferrying groceries and other packages from a neighborhood delivery hub to your front door for as little as $1 a trip.”

Happy New Year!🍻🍾🏈😎



Is American Democracy Becoming “Illiberal?”

Writing an op-ed in the Washington Post, Fareed Zakaria worries about the trend:

“Two decades ago, I wrote an essay in Foreign Affairs that described an unusual and worrying trend: the rise of illiberal democracy. Around the world, dictators were being deposed and elections were proliferating. But in many of the places where ballots were being counted, the rule of law, respect for minorities, freedom of the press and other such traditions were being ignored or abused. Today, I worry that we might be watching the rise of illiberal democracy in the United States — something that should concern anyone, Republican or Democrat, Donald Trump supporter or critic.

What we think of as democracy in the modern world is really the fusing of two different traditions. One is, of course, public participation in selecting leaders. But there is a much older tradition in Western politics that, since the Magna Carta in 1215, has centered on the rights of individuals — against arbitrary arrest, religious conversion, censorship of thought. These individual freedoms (of speech, belief, property ownership and dissent) were eventually protected, not just from the abuse of a tyrant but also from democratic majorities. The Bill of Rights, after all, is a list of things that majorities cannot do.”



Pack Drops Season Finale to Fairies! Controversial Call Ends Bid For Perfect Season!

The Beloit Fairies handed the Green Bay Packers, led by their legendary player-coach Curly Lambeau, their first — and only — defeat of the professional football season in a gritty, hard fought 6-0 game that ended with controversial call denying the Pack a potential game-winning touchdown, resulting in a near riot!  The year was 1919, and while the teams, faces, and style of the game differed from today, some things were the same — excitement, controversy, rivalry, and hard hitting.  Gotta wonder how many arrests and ejections took place among the fans!

Anna Patchin Schmidt, our daughter, who lives with her family in Beloit, WI, forwarded this item from Treasured Lives:

“Before the Green Bay Packers could conquer the world, first they had to best the state of Wisconsin and parts of Michigan, Minnesota and Illinois. In their first two seasons, before joining what later became the National Football League, the Packers battled the Laphams from Milwaukee, the Oshkosh Professionals and the Stambaugh Miners from Michigan.
The 1919 Green Bay Packers, sponsored by the Indian Packing Co. of Green Bay. (Wikipedia)
In their first two seasons, the only team to beat them was a scrappy factory-backed team from Beloit called the Fairies. Make no mistake, the Beloit gridiron 11 was no group of winged waifs with pixie dust and a magic wand. Named for the Fairbanks Morse & Company, the Fairies handed the storied Packers franchise its first-ever loss in the fall of 1919. The game was decided on the last play and nearly caused a riot at Beloit’s Fairbanks-Morse Field.

With time slipping away, the Fairies led the Packers by a 6-0 score. The Packers punched through the Beloit line repeatedly and reached the opponents 5-yard line. “Beloit then stiffened, threw up a stone wall and fought back,” wrote the Janesville Daily Gazette in its game recap, “but though they were heavier than the Bay boys, Beloit couldn’t hold.”

The Packers scored a touchdown as time expired, but the linesman flagged the Packers for being offsides. “Cries of derision were heard all over the sidelines from the spectators when the penalty was called,” the Gazette wrote. “For a time, with the 2,000 spectators surging over the field towards the two teams and the referee, it appeared that a riot would be in progress, but the players of both teams forced the crowd back.”

It was not the first controversial call of the game. Earlier, the referee whistled the Packers for being out of bounds. “A beefing match then followed, with the referee and the captain of the Green Bay team chewing the fat over the rule book, and the discovery that the referee was using a 1918 set of rules.” The Green Bay captain was none other than the legendary Curly Lambeau, who served as player and coach in those early years.

Adding to the lore of that Packers-Fairies match was an after-game rumor that the Packers offered $5,000 to play the game again on a neutral field with football authority Walter Eckersall as referee. That never happened, and the Pack finished its first season with a 10-1 record. Even in the 1920 season, the Fairies again proved a nemesis, handing the Packers their only loss, a 14-3 decision at Fairbanks-Morse Field.

In those early years of Packers football, they played teams including the Menominee Professionals, the Racine Iroquois Athletic Club, the Marinette North End Badgers, the Chicago Boosters, the Milwaukee Maple Leaf Athletic Club and the Milwaukee Lapham Athletic Club. The first seasons, the Packers were under the sponsorship of the Indian Packing Company of Green Bay, where Curly Lambeau worked.

Those first two seasons, the Packers compiled a 19-2-1 record. They registered eight shutouts in the 1920 campaign. They played their first Thanksgiving Day game versus the Stambaugh Miners in 1920, winning by a 14-0 score. In August 1921, the fledgling American Professional Football Association (later called the NFL) awarded a franchise to Green Bay under the sponsorship of the Acme Packing Co.”

©2015 Treasured Lives

Of course, I hope that the 2016 version of the Pack does better in their regular season finale — a date with the Detroit Lions in Detroit on New Year’s night for the NFC North Championship and a trip to the playoffs.  Go Pack Go!🏈



Deportations Down in 2016 — Focus on Criminals in the Interior is Key — But, Some Question Gov’s Broad Concept of “Criminal”

“DHS officials themselves say the falling interior deportation numbers reflect the Obama administration’s policy of focusing their efforts on removing people with criminal histories.

Virtually all of the people deported from within the interior of the United States ― 92 percent ― had been convicted of a crime that put them within one of ICE’s top three priorities for removal.

But ICE’s top priority removal category includes people convicted of the offenses of illegal entry and reentry ― non-violent crimes that don’t distinguish them much from other undocumented immigrants. DHS officials did not immediately provide a breakdown of the criminal offenses deportees had been convicted of.

The number of deportations has also dropped in recent years partly because the number of people trying to enter the country has plummeted. Border Patrol apprehended about 408,900 people in the 2016 fiscal year, which is generally considered an indicator of how many people attempted to enter without authorization. In 2000, agents picked up nearly 1.7 million people trying to cross the border illegally.

A growing share of those who do cross illegally into the United States are Central Americans, who often seek asylum or other humanitarian relief. Their cases can take years to wind their way through backlogged immigration courts and do not result in swift deportations. In 2016, border agents apprehended more Central Americans than they did Mexicans, a switch that happened for the first time in 2014.”



Does Dialogue Die When Everyone Claims the Moral High Ground?

Justin Tsoi of the University of Michigan thinks so in this provocative article and podcast:

“We’ve all seen it in annoying tweets and chest-thumping Facebook posts ― items presented as casual observations or political arguments that carry a much different underlying meaning: I am good because I have said this important thing now, here, on the Internet! The social need to be perceived by our peers as being morally upright ― or to pile on, with tribal abandon, with our likes and faves ― has replaced our calling to pursue moral truth. Or to actually engage in morally useful activities.

The problem is extremely common, Tosi argues, something even the best-intentioned of us have succumbed to at some point or another, though some of us are more flagrant and frequent offenders than others. It isn’t restricted to social media. Brian Leiter’s popular philosophy blog cites the paper approvingly, noting that moral grandstanding is rampant even in Twitter-anemic academia, where otherwise intelligent people stake out entire careers on preposterous-but-shocking arguments. ‘I will resist naming the professional philosophers who should read this, but you know who you are,’ he writes.”



Razorback FB Player Charged With Ripping Off Belk Store Shortly Before Team’s Appearance in Belk Bowl! — Thought He Was At Walmart?

“Part of the player gift for Thursday’s Belk Bowl between Virginia Tech and Arkansas was a $450 gift card to the Belk department store in Charlotte’s SouthPark Mall and 90 minutes to spend it on anything the players would like.

For Arkansas senior tight end Jeremy Sprinkle, that apparently wasn’t enough.

Arkansas announced two hours before kickoff that Sprinkle had been suspended. He was the Razorbacks’ No. 3 receiver this season with 33 catches, 380 receiving yards and four touchdowns this season, and although the team did not reveal what the suspension was for, SEC Country’s Jason Kersey reported Sprinkle was caught shoplifting during the team’s shopping spree earlier this week.”

Meanwhile, on the field, former Badger Coach Brett Bielma’s Arkansas Razorbacks squandered a 24-0 halftime lead en route to a 35-24 thrashing at the hands of the Virginia Tech Hokies.  Led by Bud Foster’s resuscitated second half defense and quarterback Jerod Evans, the Hokies scored five unanswered touchdowns. Bielma won lots of games at Wisconsin, but not many of the big ones.  Guess things haven’t changed much for Ol’ Brett down in Fayetteville.



Wow! Senator Tom Cotton (R-ARK) Wants to Jack Up Wages And Benefits For Lower Level US Workers And Make the “Fat Cats” Pay Their Share — How? — By Cutting Immigration, Naturally

Over on ImmigrationProf Blog and the NYT, Sen. Cotton says that cutting immigration, both legal and illegal, will solve all the problems of working class Americans.  Yet, I’m skeptical that the Senator’s Republican businessmen buddies will be paying  $25+/hr. plus full bennies for folks to pick veggies, clean buildings, be nannies for their kids, mow lawns, pour concrete, wash dishes, wait tables, clean tables, empty bedpans, make beds, work grocery checkout lines, pick up garbage, cook short orders, cut brush, dig trenches, trim  trees, prune shrubs, provide daycare for their elderly parents, etc.  But, I’m even more skeptical that out of work coal miners, factory workers, administrative assistants, air conditioning fabricators, secretaries, etc. will be lining up to to relocate at their own expense to take these jobs, even at higher wages.   And, even if they did, things like harvesting, pruning, caring for others, and cooking actually take skills that many out of work Americans don’t possess or don’t care to learn, no matter how dire their personal circumstances. If Sen. Cotton thinks that’s what Americans really voted for, perhaps he’s spent too much time inside the Beltway.






In Case You Missed It: It’s A Rainy Night In Georgia, Particularly If You Are An Asylum Applicant!

Some of you have seen this before.  But, my good friend and former Georgetown Law colleague Heidi Altman of the National Immigrant Justice Center sent me this article by Christie Thompson of The Marshall Project which describes the dismal atmosphere for asylum applicants and their attorneys at the U.S. Immigration Court located at the Stewart County Detention Center in Lumpkin, Georgia.  Christie interviewed me for the article.  Here an excerpt:

“‘When people aren’t represented, how can you do a fair job?’ says Paul Wickham Schmidt, a former immigration judge and former chairman of the Board of Immigration Appeals. Isolating a few judges to see only detained cases, Schmidt says, also creates a culture where granting relief is the exception, not the rule. Locating detention centers in rural areas ‘seems more or less designed to discourage people from getting meaningful representation and fighting to stay in the U.S.’”

More on the tough situation for asylum seekers in the U.S. Immigration Courts located in Georgia in the preceding post.

“‘Rainy Night in Georgia’ is a song written by Tony Joe White in 1967 and popularized by R&B vocalist Brook Benton in 1970.”  See Wikipedia link below:



Asylum Free Zones in the U.S. Examined by Inter-American Commission — Ignites Dialogue Pro and Con

This article by Katie Shepard in Immigration Impact fueled a “spirited dialogue” among my long-time Lawrence University friend Thomas “The Mink” Felhofer, a retired Postmaster and U.S. Navy Veteran from Sturgeon Bay, WI; my former BIA colleague Hon. Lory D. Rosenberg; my former colleague, Retired U.S. Immigration Judge Bruce Einhorn, of Los Angeles, CA; and me.  For those interested, I’ve tried my best to recreate the back and forth (most of which occurred before the birth of in the “Comments” section below.  Further dialogue is always welcome!



More From Nolan Rappaport in “The Hill” on How the Trump Administration and Congress Could Agree on Immigration Reform

I found some common themes:

  1.  The Trump Administration needs to “Think Outside the Wall.”  Without some fundamental changes from Obama Administration policies and Trump rhetoric, nothing is going to change.
  2. There must be some type of legalization for “Dreamers” and others to get Immigration Court dockets back under control.
  3. Interior enforcement must be reinstated and employer sanctions enforced to cut off the “magnet” for undocumented immigration.
  4. Everyone involved must work together and compromise for our immigration system to be credible.



No Happy New Year For 65 Million Refugees — Here Are Three Horrible Situations Not Named Syria or Iraq!

Michael Bowers Vice President of Humanitarian Leadership and Response, Mercy Corps, writes in WorldPost:

“The crises in Yemen, South Sudan and the Lake Chad Basin are just three of many that flew under the radar this year, and they are very likely to deteriorate in the year ahead. Despite chronically underfunded responses, Mercy Corps is tackling all three humanitarian crises, helping more than 1 million people with food, water and sanitation, hygiene and other types of support.

We hope that in 2017, in an increasingly interconnected world, closer attention is paid to the stories of the many millions of people struggling every day just to survive and find solutions to build a brighter future for themselves and their children.”

As I have said many times before, including on this Blog:  Every morning when I wake up, I am thankful for two things.  First, that I woke up, never a given at my age.  Second, I’m thankful that, through pure good fortune and no personal merit on my part, I am not a refugee.



Former Chief Immigration Judge Brian M. O’Leary Wraps Up Distinguished Three-Decade Career in Public Service

Judge Brian M. O’Leary will be retiring from the U.S. Immigration Court in Arlington, Virginia at the end of this year, thus closing out an exceptional three-decades of public service in the field of immigration.

Judge O’Leary served as the Chief Judge of the United States Immigration Court from 2009 until 2015.  After stepping down as the Chief Immigration Judge, he worked temporarily as an Appellate Immigration Judge (“Temporary Board Member”) at the Board of Immigration Appeals, in Falls Church, Virginia, the Appellate Branch of the U.S. Immigration Court.  Judge O’Leary returned to the U.S. Immigration Court in Arlington in July 2016.  He previously sat at the  Arlington Court from 2007 until his appointment as Chief Judge in 2009.

Judge O’Leary graduated from the Georgetown School of Foreign Service and the New England School of Law.  He joined the U.S. Department of Justice under the Attorney General’s Honors Program as a Trial Attorney in the Miami Office of the Legacy INS (during my tenure as the INS Deputy General Counsel).  He also served as a Special Assistant U.S. Attorney in the Southern District of Florida and the Eastern District of Virginia and was rapidly promoted to the Office of General Counsel  at INS Headquarters.  There, he served as an Assistant General Counsel, Deputy Associate General Counsel, and Associate General Counsel before his appointment as an Immigration Judge with the Executive Office for Immigration Review.

Judge O’Leary held executive positions as an Assistant Chief Immigration Judge and a Deputy Chief Immigration Judge, as well doing a previous stint as a Temporary Board Member.  He was Chief Immigration Judge during a most challenging period in the history of the Immigration Court.  At all times, Judge O’Leary had an unwavering commitment to the due process vision of the Immigration Court, to the individuals coming before the Immigration Court, and to the Immigration Judges and support staff who worked for the Court.

At the Arlington Court, Judge O’Leary was known for his fairness, scholarly opinions, hard work, organization, and unfailing courtesy too all who entered his courtroom.  Behind the scenes, “Mickey,” as he was sometimes known to his colleagues, demonstrated collegiality, a subtle sense of humor, and consistent kindness to the Court staff.  Can’t ask for a better judicial legacy.

On a personal note, I appreciate all of the friendship, camaraderie, good humor, and support that Judge O’Leary gave me over his long career. I congratulate him on his contributions to the American justice system and his retirement.  I hope that he will have more opportunities to watch his beloved Red Sox in person at Fenway this summer.

Best  wishes, always, to a great Judge and a wonderful colleague.