"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Category: Executive Office for Immigration Review (“EOIR’)
“Habib Al-Adily, a citizen of Iraq and a lawful permanent resident of the United States, was late in returning his rental car to Thrifty-Rent-a-Car (Thrifty). He was indicted under a Michigan statute criminalizing the willful failure to timely return rental property, an offense to which he pleaded guilty and for which he was ordered to pay over $10,000 in restitution to Thrifty. Two Immigration Judges (IJs) and the Board of Immigration Appeals (BIA) concluded that these circumstances warranted Al-Adily’s deportation for having been convicted of an aggravated felony under the Immigration and Nationality Act (INA). For the reasons set forth below, we GRANT Al-Adily’s petition for review, REVERSE the BIA’s decision, and REMAND to the BIA with instructions to terminate the removal proceedings against him. … A cursory review of Exhibit A reveals that Thrifty’s actual loss was clearly less than $10,000. And DHS certainly did not meet its burden of proving by “clear and convincing” evidence, see id. (quoting 8 U.S.C. § 1229a(c)(3)(A)), that the loss exceeded that amount. … Despite admonitions by both the BIA and the Supreme Court that restitution orders must be considered with caution, especially where the restitution amount was initially determined under a lower evidentiary standard, the IJs and the BIA deferred uncritically to the state court’s determination in conflating the restitution amount with Thrifty’s actual loss. In denying Al-Adily’s motion to reconsider notwithstanding this error, the BIA abused its discretion.”
[Hats off to Frank G. Becker!]
*********************
Although admittedly Circuit Judge Siler agreed with the BIA, I concur with Judge Gilman that this is more sloppy work on “the basics” coming out of EOIR.
EOIR has a severe, chronic “quality control/expertise/due process” problem that got much worse during the Trump years, when far too many Immigration Judges with questionable qualifications were elevated to the bench. Garland hasn’t solved this festering problem in the more than two years he has been in office.
And, it’s highly unlikely that just adding Immigration Judges — without a huge upgrade in qualifications, training, and supervision from a revamped, truly expert BIA — is going to solve these problems.
If anything, aimlessly adding more bodies to a mal-functioning system is just going to increase the chaos and the already unacceptable level of inconsistent results in life-or-death matters.
Hon. Ilyce Shugall U.S Immigration Judge (Ret) Managing Attorney at ILD and Senior Counsel in the Immigration Program at Community Legal Services in East Palo Alto, CA Adjunct Professor, VIISTA Villanova Member, Round Table of Former Immigration Judges PHOTO: VIISTA VillanovaKevin A. Gregg, Esquire Partner Kurzban Kurzban Tetzeli & Pratt Coral Gables, FL Host Immigration Review Podcast PHOTO: KKPT
It was a pleasure working with my friend Ilyce during an exciting two-day workshop at VIISTA Villanova recently, attended by some of her VIISTA students now out using their skills to promote and realize social justice!
Round Table members are literally everywhere these days, fighting, teaching, advocating, and educating for due process and fundamental fairness for all persons in America!
Honorable Joan Churchill Retired U.S. Immigration Judge Member, Round Table of Former Immigration JudgesJudge (Ret.) Steven Morley Of Counsel,Landau, Hess, Simon, Choi & Doebley Philadelphia, PA Member, Round Table of Former Immigration Judges PHOTO: Linkedin
Ex-judges: Immigration courts should be independent
Two retired immigration judges urged Congress to create an independent immigration court system, removing the courts from under the U.S. Justice Department, where they currently reside.
Panelists on a recent ABA webinar argued that immigration judges are not truly independent as long as they answer to the U.S. attorney general.
The former judges made their call at a panel discussion March 17 — “Adjudicatory Independence: Are Immigration Judges a Warning or a Model?” — organized by the American Bar Association Judicial Division. They and other panelists argued that immigration judges are not truly independent as long as they answer to the U.S. attorney general, who can overturn their decisions, fire them and create new immigration policies that they must follow.
Steven Morley, a retired immigration judge in Philadelphia, talked about a case he handled in 2018, called the Matter of Castro-Tum, which he considered a red flag for judicial independence.
The case involved an unaccompanied minor who illegally entered the United States, was detained by authorities, then released to relatives in the United States pending a hearing to force him to leave the county. Hearing notices were sent to the relatives’ address, but the boy did not appear. Finally, after four postponements, Morley administratively closed — or indefinitely suspended — the case, ruling that the Department of Homeland Security could not show it had a reliable address to notify the boy of his hearing.
At that point, U.S. Attorney General Jeff Sessions referred the case to himself and overturned the judge’s decision. Sessions ruled that immigration judges do not have the authority to administratively close cases as Morley did. The new policy made it harder for immigration judges across the country to indefinitely suspend cases. This caused an uproar among immigration judges and advocates.
Three years later, in 2021, Merrick Garland — a new attorney general in a new administration — overturned Sessions’ action.
Such actions undermine the independence of immigration judges, Morley said. “The flaws in the system allow this to happen, and we should always be concerned for the integrity of the court system.”
Morley said attorneys general under President Donald Trump referred immigration cases to themselves to overturn judges’ decisions 17 times in four years, a large number compared to previous administrations. “This is no way to run immigration policy, to have ping-ponging back and forth of policy, from one attorney general to another attorney general.”
Joan Churchill, a retired immigration judge in Northern Virginia, outside Washington, D.C., also emphasized the importance of maintaining due process in immigration courts, particularly hearing notices to defendants. “Adequate notice of the hearing is on everybody’s list as a requirement of due process,” she said.
Churchill noted that the U.S. Supreme Court, in a decision a few years ago, written by Justice Neil Gorsuch, found that notices in immigration court often were not constitutionally adequate. “Justice Gorsuch said any notices that did not include the time and place of the hearing — which many of them did not; they just said time and place to be determined — those were not adequate notice of the hearing and therefore the cases were defective.”
In 2010, the ABA House of Delegates adopted a policy supporting the creation of an independent Article I system of immigration courts. More than 150 organizations support this position, including the National Association of Immigration Judges and the American Immigration Lawyers Association, Churchill said.
Thanks, Joan and Steve for forwarding this report and for doing such an outstanding job of highlighting the compelling, urgent need for this long-overdue reform.
A fire in a dormitory at a Mexican immigration detention center near the U.S. border left more than three dozen migrants dead, a government agency said Tuesday, in one of the deadliest incidents ever at an immigration lockup in the country.
Hours after the fire broke out late Monday, rows of bodies were laid out under shimmery silver sheets outside the facility in Ciudad Juarez, across from El Paso, Texas. Ambulances, firefighters and vans from the morgue swarmed the scene.
Thirty-nine people died and 29 were injured and are in “delicate-serious” condition, according to the National Immigration Institute. There were 68 men from Central and South America held in the facility at the time of the fire, the agency said.
It was the deadliest incident inside a Mexican immigration facility in recent memory. Authorities are investigating the cause of the fire and the governmental National Human Rights Commission had been called in to help the migrants.
The agency said that it “energetically rejects the actions that led to this tragedy” without any further explanation of what those actions might have been.
The country’s immigration lockups have seen protests and riots from time to time.
Mostly Venezuelan migrants rioted inside an immigration center in Tijuana in October that had to be controlled by police and National Guard troops. In November, dozens of migrants rioted in Mexico’s largest detention center in the southern city of Tapachula near the border with Guatemala. No one died in either incident.
**************
Human rights experts, advocates, and international organizations have been predicting even more deadly tragedies like this will result if the Biden Administration’s tone-deaf and outrageous “death to asylum seekers regulations” go into effect. The Biden Administration has blown them off!
These are just the most “graphic deaths” resulting from years of ill-advised “deterrence” policies at the border and a continued deterioration of the legal refugee and asylum system. This preventable human rights disaster began under Obama, accelerated dramatically under Trump, and has continued its “death spiral” under the Biden Administration’s “active indifference” to human rights, racial justice, and the rule of law at the border. Significantly, incidents like this don’t account for the tragedies that occur when legal asylum seekers are illegally returned to torture, abuse, and death in home countries or Mexico without receiving any due process from U.S. officials.
Apparently, the Biden Administration believes that “death in Mexico will stay in Mexico” and that bodies and bleached bones along desolate areas of the U.S. borders will continue to be “below the radar screen.” In their own way, Biden policy officials are every bit as cruel, intellectually dishonest, and unaccountable as those in the Trump kakistocracy.
It doesn’t have to be this way! Why aren’t more Dems meaningfully challenging the Biden Administration’s adoption of horrible, deadly, hate-fueled “Stephen Miller border policies?”
“Death to asylum regulations” also mean death to our fellow humans seeking legal protection from the U.S. How is this acceptable “strategic policy” for ANY administration, let alone a Dem one?
Don’t just complain about the awful mess @ EOIR! Get on the bench and do something about it! Public Domain
From Dan Kowalski @ LexisNexis:
Good morning Dan,
I am writing to let you know that the U.S. Department of Justice, Executive Office for Immigration Review (EOIR), is looking to hire additional immigration judges. I wanted to provide the following information in the event it might be useful to Bender’s Immigration Bulletin subscribers and others who may wish to learn about the immigration judge career path. Could you please provide this information to anyone who you think may be interested?
Sign up to attend a Recruitment Outreach Session – on March 23 and on March 30, sign up to attend a live webinar, where we’ll be explaining how to become an immigration judge. The hour-long sessions are moderated by assistant chief immigration judges, with time for Q&A at the end.
2.The next immigration judge job opportunity announcement is scheduled to open in early April. Individuals may receive a notification when the announcement is posted on USAJOBS, by signing up for EOIR’s Adjudicators Announcement listserv: U.S. Department of Justice (govdelivery.com).
3.For more information on the immigration judge career path, benefits, qualifications, etc., please visit our EOIR Careers webpage.
Thank you so much for your attention and support as we work to hire additional immigration judges.
Kathryn
Kathryn Mattingly
———————————————–
Assistant Press Secretary
Communications and Legislative Affairs Division
Executive Office for Immigration Review
U.S. Department of Justice
**********************
It’s very encouraging to see EOIR now doing some “affirmative recruiting” to widen and improve the selection pool for these important “life or death” positions. It’s YOUR chance to promote and deliver due process at the most important level of our justice system — the “retail level!” That’s where “the rubber meets the road” (or continues to have “flat tires” as is now the case throughout the Federal Judiciary at all levels.)
I seldom attend any professional gathering these days without being bombarded with “horror stories” and angry complaints about the poor quality of judging, lack of understanding, and absence of practical problem solving skills at all levels of EOIR. NDPAers, this is OUR chance to do more than “just complain” (particularly to me, since I’m not in charge of anything) by improving and diversifying the system “from the ground up,” institutionalizing better interpretations, great applications of law, and best practices in the process!
I also have a vision that at some point in history, a more “with it” Administration that actually understands the cosmic importance of immigration and human rights, takes Constitutional Due Process seriously, has some guts, and views all human lives as mattering, will use the Immigration Courts as a “natural pool” for better Article III judicial appointments.
Additionally, when Article I eventually happens, there inevitably will be some type of “grandfathering” of existing IJs. WHO would YOU like to see “grandfathered” into a new independent system? All of the current incumbents, or a more diverse group including many practical scholars and fearless due process mavens?
As my good friend and neighbor, Professor Alberto Benitez of the GW Law Immigration Clinic always says, “The world is yours!”
Alicia A. Caldwell Immigration Reporter Wall Street JournalAngel of Death Artist: Evelyn De Morgan 1880 Public Realm The Angel of Death (“AOD”) comes for another asylum seeker at the border. Biden border policies have created “full employment” for the AOD!
Santiago Perez & Alicia Caldwell report for the WSJ:
EAGLE PASS, Texas—Local officials keep a refrigerated truck to hold the bodies of migrants who drown in the currents of the Rio Grande while trying to cross the border into the U.S.
Across the river, families having picnics or walking along the waterfront promenade of Piedras Negras, Mexico, say they sometimes see bodies floating by or bobbing among the reeds under a bridge. “We had times when we received four or five bodies a week,” said Hugo González, owner of Funerarias González in Piedras Negras. “At one point, there were a lot of corpses and there was nowhere to put them. We just didn’t have enough refrigerators at the funeral home.”
A spike in deaths along the most dangerous stretches of the U.S.-Mexico border reflects the escalating number of migrants seeking to cross into the U.S. from troubled home countries. At the same time, U.S. immigration policies are allowing fewer of them legal entry. Many migrants have turned to human smugglers and WhatsApp messages to help them navigate more lightly patrolled—and treacherous—sections of the border to enter illegally, U.S. officials said.
. . . .
***************************
Those with WSJ access can read the full article at the link. Those without can register for a limited number of free articles.
Remarkably, the existing law provides a legal framework for encouraging refugees to apply in or near their native countries and also for legal asylum seekers to apply in an orderly fashion at legal ports of entry. It also, for better or worse, provides DHS with an “expedited removal” process for those at the border who can’t establish a “credible fear” of persecution after initial proper screening by a trained expert Asylum Officer. This process does not require full Immigration Court hearings.
Sadly, the Trump and now the Biden Administrations have chosen to avoid or evade these existing legal tools for granting refuge in a timely and orderly fashion. Instead, encouraged by nativists, they have chosen to employ extralegal “gimmicks” like Title 42 to close down the legal avenues for seeking asylum at ports of entry.
Those who are allowed into the system face a series of the Government’s intentionally-imposed hurdles. These include: impeding access to representation; punitive imprisonment in substandard conditions in obscure places; deficient technology used as a “gatekeeper;” poorly-qualified adjudicators who lack expertise and “real life” experience assisting asylum seekers; unduly restrictive interpretations of what are supposed to be generous, protection-oriented asylum laws; a mismanaged and backlogged system that moves either too fast too slow for due process, but never “just right;” random scheduling and politicized resettlement; lack of adequate notice of the legal requirements they are supposed to meet.
Tragically, while Administrations and nativists disingenuously claim the opposite, this “dual lack” of competence and integrity has essentially left control of refuge in the U.S. to extra-governmental actors — basically smugglers, cartels, and other organized criminal enterprises. With legal avenues for seeking protection cut off or unduly restricted, refugees who need protection will resort to extralegal methods to save themselves and their families.
In addition to “empowering the bad guys to run the system,” the Government’s short-sighted approach actually dilutes border enforcement. That’s because it improperly and unnecessarily “lumps in” refugees and legal asylum seekers with individuals and groups actually seeking to enter for purposes unrelated to seeking legal protection under our laws.
It’s little wonder that despite questionable claims of lower numbers, the most obvious empirical effect of years of bad border policies and inept administration of the law has been to increase the number of border deaths, as related in the above article.
It would be nice to think that some day, our nation will have leaders who actually value human lives, rather than just viewing human rights as a “throwaway line” — subservient to their desire to amass and maintain political power. Until then, more will needlessly die.☠️🤮
CAUTION: You are about to enter AG Merrick Garland’s “Twilight Zone” — where judges operating in a parallel universe make surreal decisions without regard to facts, law, or common sense applicable in this world! The Twilight Zone Billy Mumy 1961.jpg :PHOTO: Public Realm
Dan Kowalski reports for LexisNexis Immigration Community:
CA9 on Standard of Review: Umana-Escobar v. Garland
“Josue Umana-Escobar petitions for review of the Board of Immigration Appeals (“BIA”) order upholding the immigration judge’s (“IJ”) denial of asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). He also challenges the BIA’s determinations that defects in the Notice to Appear (“NTA”) did not require termination of his proceedings and that the BIA lacked authority to administratively close his case. We have jurisdiction under 8 U.S.C. § 1252. We dismiss the defective NTA claim for lack of jurisdiction and deny the petition as to the CAT claim. We grant the petition and remand as to the administrative closure issue, given the government’s recommendation that we should do so based on an intervening decision by the Attorney General. We also grant the petition and remand as to the asylum and withholding of removal claims because the BIA applied the wrong standard in reviewing the IJ’s determination that the evidence failed to establish the requisite nexus between a protected ground and past or future harm.”
The initial hearing was in 2013, merits hearing in 2017, Circuit remand in 2023. After a decade, a fairly routine asylum case is still unresolved!
This case probably shouldn’t even be in Immigration Court, as it was affected by “Gonzo” Sessions’s wrong-headed, backlog-building, interference with administrative closing, later reversed by Garland, but not until substantial, systemic damage to EOIR had already been caused.
When it’s “any reason to deny, any old boilerplate gets by!”🤬 Bogus “no nexus” findings — often ignoring the “at least one central reason” standard and making mincemeat out of the “mixed motive doctrine” — are a particular EOIR favorite! That’s because they can be rotely used to deny asylum even where the testimony is credible,the harm clearly rises to the level of persecution, is likely to occur, and relocation is unreasonable!
In other words, it allows EOIR to function as part of the “deterrence regime” by sending refugees back to harm or death. What better way of saying “we don’t want you” which has become the mantra of Biden’s “Miller Lite” policy officials!
GOP, Dems, neither are competent to run a court system. That’s why we need an independent Article I court!⚖️
Felicia Rangel-Samporano and Victor Cavazos founded The Sidewalk School, then a migrant shelter in Mexico. Now they also provide tech-support for a flawed U.S. immigration app.
Since opening, the school has also expanded to the neighboring Mexican border city of Reynosa. Because life in the migrant camps is transitory, The Sidewalk School’s teachers came and went, sometimes within weeks, said Rangel-Samponaro. They decided it would be easier to hire educators from Mexican border communities instead. Residents also understand better how to navigate the complicated dynamics at play in cities like Matamoros and Reynosa, which are riven by cartel-related crime—most recently, the kidnapping of four U.S. citizens in Matamoros, two of whom were shot and killed by cartel gunmen.
The Sidewalk School teaches based on the U.S. school calendar. In February they celebrated Black History Month, for example, she said. They focus on reading, writing, drawing, and play activities. Classes are typically held from 10:00 a.m. to 3:00 p.m. They currently have 10 people on staff in Matamoros and Reynosa. “We need even more staff,” Rangel-Samponaro said. “In both cities.”
Frontline Responders
As elected leaders in both Mexico and the United States fail to acknowledge the seismic shift in global displacement due to climate change, Covid-19, and other factors, migrant camps continue to appear up and down the Mexican border.
Border residents have been frontline responders, adapting to the most pressing needs in the camps, one of which is housing. Recently, The Sidewalk School joined the church group Kaleo International to build a shelter in Reynosa. The shelter houses mostly Haitian and African migrants, who are some of the most vulnerable since they are routinely targeted for kidnapping and persecution in Mexico.
But one of the biggest surprises, said Rangel-Samponaro, is that they now serve as tech support for the CBP One app, which was rolled out in January by the U.S. government for migrants to apply for asylum, as an exemption to Title 42. The app has been plagued with errors. And humanitarian groups have complained that the app, which requires that each person upload a selfie to begin the asylum process, often won’t accept photos of darker-skinned applicants.
Currently, there are thousands of Haitians in both Reynosa and Matamoros, as well as other darker-skinned asylum seekers, who are stuck because they can’t get the app to accept their photos. (The manual on the app, which Sidewalk School employees consult daily is 73 -pages long).
I visited Reynosa and The Sidewalk School in late February and spoke with several Haitian families who had tried to use the CBP One app.
I was quickly surrounded by frustrated parents who said they’d been trying for weeks to make the app work. Living in makeshift shelters made of tarps and cardboard and having little to no access to the internet, parents were waking up at 3:00 a.m. in the morning to find a place with an internet connection, then registering, and trying to take and upload their photo before 8:00 a.m., when the app began accepting daily applications.
“I have an appointment,” one father told me. “But the app won’t accept the photos of my children, so I can’t get appointments for them.”
The app often timed out, crashed, or gave error messages, they said. “It’s a disaster,” one man said, after I asked him to sum up his experience trying to use the app.
“People don’t like hearing it, much less acknowledging what is happening to Black asylum seekers,” Rangel-Samponaro said. “They are stuck inside these encampments for months compared to people of Latin descent, who are at the camps for maybe two weeks or a month.”
I spoke with at least 10 different Haitian families, and they all told me that they’d been living in the migrant camp in Reynosa for at least five months.
“We don’t have enough food,” a Haitian boy told me in Spanish, who said he was 11 years old. “And I have this rash on my face.” He pointed to his cheek. Open sewers and trash littered the area around the camps. And the families, who said they couldn’t work and were struggling to buy food, said they were growing desperate.
Felicia Rangel-Samporano visiting a migrant camp in Reynosa with mostly Haitian and Venezuelan asylum seekers. (Photo: Melissa del Bosque)
So desperate that families were considering splitting up. Rangel-Samponaro said there had been anguished meetings with parents who were considering sending their children across as unaccompanied minors. If the parents could get appointments through the app, they would reclaim their children once they arrived in the United States. At least that’s what they hoped.
Recently, The Sidewalk School brought in an immigration attorney to explain to parents how difficult it can be to find a child once they have been designated as unaccompanied in the U.S. immigration system. Children are held by CBP, then transferred to a shelter run by the Office of Refugee Resettlement somewhere in the country. “We’ve explained to them that it’s unlikely that they will cross, and their child will be there waiting for them,” she said.
And once people are accepted by the app for an appointment, they are extensively vetted through a series of law enforcement databases, and some are turned back, she said. “Just because you’ve got an appointment doesn’t mean they’re going to let you in to the United States.”
Rangel-Samponaro, like many others who provide humanitarian services in Mexico, is in frequent contact with CBP about problems with the app. In early March, she said, the agency updated the app so that it only requires one member of the family to submit a photo. But there are still not enough appointments for every member of the family, she said, so families are still splitting up and sending their children across as unaccompanied minors.
The Border Chronicle requested a response from CBP about the app. Tammy Melvin, a CBP press officer, replied in an email that the agency “continues to make improvements to the app based on stakeholder feedback.”
She said that “appointments will only be shown if enough slots for each member in the profile is available.”
And Melvin added in the email that they’ve not seen any issues linked to ethnicity. “CBP One is not conducting facial recognition that compares photos submitted in the application against any other reference system to identify someone,” She wrote. “CBP is not seeing any issues with the capture of the liveness photos due to ethnicity.”
Rangel-Samponaro and others disagree. “We’ve invited the app developers to Reynosa and Matamoros to see the problems we’re having firsthand, but they’ve declined to visit,” she said.
Meanwhile, the hardships keep growing for asylum seekers. Recently, the Biden Administration announced, beginning in May after Title 42 is lifted, that asylum seekers must apply for asylum in the first country they enter, rather than at the U.S.-Mexico border.
Rangel-Samponaro said The Sidewalk School is doing everything it can to help, as even more people will likely be stuck in limbo after the policy change in May. They’re providing educational programs, running a shelter, and now providing tech support, and helping people navigate the U.S. government’s glitch-filled app. “I struggle to categorize everything that we do now,” she said.
Just one of the many error messages encountered while using the CBP One app that Rangel-Samponaro and others try to troubleshoot for asylum seekers. [The “error messages” are all too real! The CBP denial that there is a problem is surreal!]
The first two years were rough going, she said, and she and Cavazos spent their own money to keep The Sidewalk School afloat. Now they’re receiving some grants and donations. But it’s always a struggle, she said. “We need more volunteers, more funding,” she said. “Because the need never stops.”
For volunteer opportunities and to learn more about The Sidewalk School click here.
************
Read Melissa’s full article at the link.
How’s this for “contrast?” Felicia Rangel-Samporano and Victor Cavazos, private citizens, gave up comfortable lives in the U.S. and invested their own time and money in addressing the needs of children and families essentially “tashed” by lawless inhumane policies of both the Trump and Biden Administrations. Meanwhile, racist, cowardly, bullying Gov. Greg Abbott (R-TX) is leading a clearly unconstitutional effort to deny children in Texas U.S. the public education to which they are entitled under Supreme Court precedent. Have to ask what’s wrong with a state that puts a horrible person like Abbott, who doesn’t even govern very well in emergencies or other areas, in charge? They also enabled Texas Attorney General Ken Paxton (R), another bullying, lawless, coward who is basically the “bottom of the barrel!”
What the major networks and “mainstream”nmedia aren’t telling you:
“[E]lected leaders in both Mexico and the United States fail to acknowledge the seismic shift in global displacement due to climate change, Covid-19, and other factors;”
“Same old, same old” deterrence and officially-sanctioned cruelty, even in large, expensive, wasteful doses will NOT “solve” refugee flows;
The U.S. “system,” such as it is, systematically mistreats Black asylum seekers;
“CBP One” is defective technology that should never have been put into operation without testing and approval from the humanitarians actually working in the camps in Mexico;
So bad is CBP One that it is encouraging family separation;
The “requirement” that every family member obtain a separate appointment throughCBP One is totally insane;
Even when asylum applicants get an appointment, it’s still a “crap shoot” because the Administration functions in a lawless, opaque, and arbitrary fashion without the necessary legal and practical expertise and safeguards in place;
The very idea that Mexico is a “safe” place to send non-Mexicans rejected at the border, under the totally irrational and illegal “presumption of denial” proposed by the Administration, is beyond preposterous;
The Biden Administration has failed to heed the advice of experts who have actually worked on the border and who have constructive ideas for making the law work.
I’m not just getting the above from this article. I have recently had a chance to hear from individuals actually providing legal and humanitarian services at the border who basically said that the situation there is “beyond FUBAR” and that the Administration officials “crafting” border policies are out of touch with reality and not up to their jobs! In some cases, they are just paying no attention to the law or the advice of those who actually understand the system, both in and out of Government.
That seems exactly what we voted out of office when the Trump kakistocracy was removed. Why, then, does Biden think that ignorance, bias, cruelty, and incompetence on human rights and racial justice is now a “winner?” Why is he aligning himself and his Administration with GOP nativist zealots like Abbott, Paxton, DeSantis, Trump, and Miller, rather than with folks like Rangel-Samporano and Cavazos who actually represent the humane, practical, problem-solving values that the Dems ran on in 2020?🤯
With human lives at stake every day, one would think that our Government’s massive violations of human rights and cavalier dismissal of legal rights recognized for more than four decades, would be of great interest to the so-called “mainstream media” and that all Democrats would be demanding changes in human rights/immigration leadership (obviously, Mayorkas & Garland are the wrong folks) and a competent, legal, humane approach from the Biden Administration. But, unfortunately, you would be wrong! Dead wrong, in some cases! ☠️⚰️
“Gerardo Caballero-Vega, a Mexican citizen, entered the United States in 1993 without admission or parole by an immigration officer when he was eight years old. He was removed to Mexico in 2019. Shortly after his removal, Caballero-Vega returned to the United States and applied for asylum, withholding of removal, and protection under the Convention Against Torture. Later that year, the Immigration Judge (“IJ”) granted his application for asylum, which the Department of Homeland Security (“DHS”) appealed to the Board of Immigration Appeals (“the BIA”). In 2020, the BIA vacated the IJ’s decision for clear error and ordered Caballero-Vega’s removal to Mexico. The following year, Caballero-Vega filed a petition for review in this court. We reverse the BIA’s vacation of the IJ’s decision and remand the case for further review. … Caballero-Vega became a criminal informant for the San Mateo County District Attorney in 2012. He reported to law enforcement on the drug, firearm, and human trafficking conducted by Nuestra Familia, a California prison gang, as well as the Norteño Gang, Nuestra Familia’s “foot soldiers” in the streets. R. Vol. I at 143. Following his informant work, he testified against Nuestra Familia members in criminal court. Caballero-Vega was placed in a witness protection program during and after his testimony. … On November 13, 2019, the IJ granted Caballero-Vega’s application for asylum, finding that he had established a well-founded fear of future persecution based on his membership in the group of “informants who have testified in court against gangs.” … DHS appealed the decision to the BIA. On December 15, 2020, the BIA sustained DHS’s appeal, vacated the IJ’s grant of Caballero-Vega’s asylum, and ordered Caballero-Vega’s removal to Mexico. Specifically, the BIA found that there was “clear error in the [IJ]’s finding that there’s a reasonable possibility that [Caballero-Vega’s] 2012 status as an informant and his 2013 or 2014 United States testimony against United States gang members will be a central reason for possible future harm to [him] upon removal to Mexico.” … We find insufficient the BIA’s explanation for its finding that the IJ’s decision is clearly erroneous. The fact that Caballero-Vega was not persecuted in Mexico is of little-to-no probative value here because he escaped before he could be identified by cartel members. Likewise, the fact that he was not threatened or harmed in the United States following his time as an informant is unhelpful because he was in witness protection for that entire period. Finally, the expert testimony cited by the IJ demonstrates that Mexican cartel members and United States gang members cooperate extensively, so the fact that Caballero-Vega testified against individuals based in the United States, not Mexico, is not dispositive. Thus, none of the reasons the BIA offers for vacating the IJ’s decision justifies the BIA’s finding of clear error. We remand Caballero-Vega’s case to the BIA to accept the IJ’s decision or to provide further justification for its finding that the IJ’s decision is clearly erroneous.”
Asylum was correctly granted in November 2019. 3.5 years later, the case is still kicking around because the wrong “judges” are on the BIA.
Ever wonder why EOIR has unmanageable backlogs? Even when the system works as it should and protection is granted at the initial level, the BIA and their “partners” at DHS Enforcement combine to screw it up! We need Article I!
Dems keep babbling about “Federal Court reform.” But, they can’t even achieve long-overdue progressive reforms to a court system they totally “own!”
Why won’t the Biden Administration govern in accordance with the humane, practical, legal values they ran upon, when it comes to human rights, immigration, and racial justice? Don’t kid yourself! Rather than being “expendable” or “negotiable,” THESE are the issues on which our democracy will eventually stand or fall! That’s something that the younger generation must focus on!
Sessions and Miller wasted almost no time in co-opting and weaponizing EOIR against asylum seekers, migrants, people of color, and even smearing and attacking those defending them. Evil though they were, they had passion and a plan for dehumanization, destruction, and undermining democracy!
Social justice in America needs passionate, brave, principled advocates and defenders! There are plenty of them “out here!” Indeed, My Round Table colleague Judge Ilyce Shugall and I are surrounded by them here at the VIISTA celebration and training at Villanova!
Villanova University President Rev. Peter M. Donohue, Villanova Law Dean Mark Alexander, Professor Michele Pistone, creator and founder of VIISTA Villanova and the CARES Clinic, the VIISTA and CARES alums who have come here from literally every corner of America to celebrate, teach and learn — THEY are passionate about social justice and are actively expanding and defending it. THEY are doing something about the number one immigration problem today — guaranteeing due process through effective representation — by training and turning out “accredited representatives,” highly skilled professional advocates who don’t necessarily have to be lawyers!
Professor Michele Pistone Villanova Law — Creator of VIISTA Villanova Program for training accredited representatives and building nationwide social justice networks. She is passionate about social justice. Why aren’t Biden Administration politicos?
As Father Donohue said at yesterday’s celebration, “‘Woke’ means social justice!” Amazing people have come here from the Southern Border where they work with asylum applicants on both sides of the border. Every day, they see the human trauma, racism, pain, and suffering caused by the Administration’s failure to innovate, lead, and stand up for human rights. These are the preventable human dramas and traumas that smug, ill-informed Administration “policy makers” run away from — they don’t have the courage to face and learn from those they abuse!
Values – human rights and legal rights — CAN’T EVER be “trumped” by “reelection concerns.” I might also add that the “Miller Lite” strategy followed by the Administration hasn’t found supporters or made them friends anywhere on the political spectrum! If you are going to make folks mad, why not at least be doing the right thing? Are competence, innovation, humanity, keeping campaign promises, and following the law REALLY political “losers” as Biden apparently believes? I doubt it!
The Biden Administration and many congressional Dems apparently lack passion and guts! Without the basic governing skills and integrity to undo the horrible human and systemic damage inflicted by Trump and institutionalize due process and fundamental fairness, the Dems are wandering in the social justice wilderness! No passion, no values, no expertise! Doesn’t say much for a party that promised to be a “socially just” alternative to anti-American Trumpist White Nationalism!
This Article posits that the United States treats asylum as exceptional, meaning that asylum is presumptively unavailable and is offered only in rare cases. This exceptionality conceit, combined with an exclusionary apparatus, creates a problematic cycle. The claims of asylum seekers arriving as part of wide-scale refugee flows are discounted, and restrictive policies are adopted to block these claims. When the claims mount anyway, the United States asserts “crisis” and deploys new exclusionary measures. The problems created by the asylum system are not addressed but instead deepen. The Article commends a turn away from policies that have led down the same paths once and again.
The Article first describes the development of the modern U.S. asylum system, highlighting data demonstrating that the system has exceptionality as a basic feature. In doing so, the Article reconsiders an assumption underlying much scholarship that the U.S. asylum system is fundamentally a generous one even if it has sometimes failed to live up to its promise. The Article then establishes that the emphasis on exceptionality has led to an exclusionary asylum process, which mostly takes place in the context of deportation proceedings and layers on additional procedural barriers. Next, the Article documents how the system places genuine refugees in danger while causing violence at the border. Further, embedded bias in the system, resulting from the focus on exceptionality, creates a legitimacy problem. The system discredits commonly-arising claims from neighboring nations, particularly Central America, while favoring asylum seekers from distant nations such as China. The system also violates international human rights and refugee law.
The Article concludes by offering suggestions for more stable, effective, and humane policies to address refugee arrivals in the United States. In addition to eliminating many existing substantive restrictions on asylum, the system should incorporate presumptions of asylum eligibility for applicants from designated nations or situations that are sending significant refugee flows. In addition, the United States should adopt a specialized non-adversarial asylum system for all cases, apart from the deportation system and with genuine independent review of denials of asylum.
******************
Read the complete article at the link.
You’ve “hit the nail on the head,” Denise!Unhappily, those in charge, in both parties, are “wedded” to variants of “rejection theory.” Unless and until that changes, our refugee policies will continue to struggle and fail.
Indeed, quite discouragingly, the “answer” of the Biden Administration to virulent, racist attacks on refugees and other vulnerable populations, is basically to abandon human rights to the GOP White Nationalists by “killing” refugee and asylum laws, dissing advocates, ignoring experts, and adopting a more or less “randomized,” politicized, extralegal, and restrictionist approach to refugees.
The “leading” GOP presidential candidates bash and demean refugees, immigrants, LGBTQ individuals, women, the poor, on an almost daily basis. When is the last time you heard Biden or any other Administration official aggressively defend the rights of refugees and asylees and tout their value and contributions to America?
It’s pretty much what our approach was in the 1970’s, prior to the Refugee Act of 1980. “Back to the future,” in more ways than one!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up” — Help get this poor little guy back on his feet! He’s been down far too long!Don’t just complain about the awful mess @ EOIR! Get on the bench and do something about it! Public Domain
Contact: Communications and Legislative Affairs Division Phone: 703-305-0289 PAO.EOIR@usdoj.gov
www.justice.gov/eoir @DOJ_EOIR March 13, 2023
EOIR to Host Recruitment Outreach Sessions Join Us to Learn How to Become an Immigration Judge
SUMMARY: The Executive Office for Immigration Review (EOIR) is looking for qualified candidates from all backgrounds to join our immigration judge corps. Interested parties are invited to attend an information session where senior EOIR staff will discuss the immigration judge career path, duties, qualifications, and benefits of being an immigration judge. You will learn how to apply for immigration judge positions when they become available and have the opportunity to ask questions about the immigration judge position and application process. Please join us for one of the sessions below.
March 16, 2023
March 23, 2023
March 30, 2023
Noon – 1 p.m. Pacific Time Noon – 1 p.m. Central Time Noon – 1 p.m. Eastern Time
“I was working at the Justice Department on immigration issues largely related to enforcement, figuring out how to make our laws more just, more fair, more humane. . . . But the Board of Immigration Appeals also has jurisdiction over dealing with regulations. It’s the highest administrative agency dealing with immigration issues—not only one-off cases, but we set national precedent for things like asylum, dealing with children who are detained in the United States. It’s a very powerful agency. Not a lot of people realize how much influence it has. And so that’s significant because when Trump was elected, we saw such a marked change in the direction of the work, where the focus of the policies seemed to be cruelty for the point of cruelty. And I couldn’t continue to work there and uphold my oath to protect and defend the Constitution, let alone maintain my own moral compass. And so I took a stand and I left.”
Rep. Hillary Scholten (D-MI) Visit Creator: Ike Hayman Credit: Ike Hayman SOURCE: WikipediaMary Harris Host & Managing Editor What Next PHOTO: Slate.com
Not just a thing of the past. Unsplash [In fact, it’s Arkansas GOP Gov. Sarah Huckabee Sanders’s “vision of the future” now that she has eliminated those pesky “burdensome and obsolete” child labor laws!]BY MARY HARRISMARCH 09, 20233:40 PMCongresswoman Hillary Scholten remembers exactly where she was when she realized her new job on Capitol Hill was about to get a lot more complicated. “My heart just sank,” she said. “I couldn’t believe what I was reading.”Scholten was reading the New York Times, a big investigation into immigrant child labor. The very first anecdote in this 5,000-word opus is about a 15-year-old girl bagging cereal on the graveyard shift in the Hearthside Food Solutions plant in Grand Rapids, Michigan. Scholten is a third-generation Michigander. She’s from Grand Rapids. And it wasn’t just that companies in Scholten’s hometown were employing kids. It was that many of these kids seemed to be living without their parents. And a lot of them were falling asleep in school because they had full-time jobs. The machines they were working on? They had been known to slice off workers’ fingers.Congresswoman Hillary Scholten remembers exactly where she was when she realized her new job on Capitol Hill was about to get a lot more complicated. “My heart just sank,” she said. “I couldn’t believe what I was reading.”Scholten was reading the New York Times, a big investigation into immigrant child labor. The very first anecdote in this 5,000-word opus is about a 15-year-old girl bagging cereal on the graveyard shift in the Hearthside Food Solutions plant in Grand Rapids, Michigan. Scholten is a third-generation Michigander. She’s from Grand Rapids. And it wasn’t just that companies in Scholten’s hometown were employing kids. It was that many of these kids seemed to be living without their parents. And a lot of them were falling asleep in school because they had full-time jobs. The machines they were working on? They had been known to slice off workers’ fingers.
“Especially as an attorney who has worked on these issues her entire career, it felt like a personal attack,” Scholten said.
On Wednesday’s episode of the show, I spoke with the former immigration attorney–turned–congresswoman about the broader powers she has now that’s she in D.C. and whether she will be able to use them. Our conversation has been condensed and edited for clarity.
Mary Harris: Rep. Hillary Scholten says the nuances of immigration have always been important to her. Before she was an attorney, she worked as a migrant advocate. But once she got her law degree, she took that experience one step forward, joining the DOJ.
Hillary Scholten: I was working at the Justice Department on immigration issues largely related to enforcement, figuring out how to make our laws more just, more fair, more humane.
You were working on immigration appeals, right?
Yeah, exactly. But the Board of Immigration Appeals also has jurisdiction over dealing with regulations. It’s the highest administrative agency dealing with immigration issues—not only one-off cases, but we set national precedent for things like asylum, dealing with children who are detained in the United States. It’s a very powerful agency. Not a lot of people realize how much influence it has. And so that’s significant because when Trump was elected, we saw such a marked change in the direction of the work, where the focus of the policies seemed to be cruelty for the point of cruelty. And I couldn’t continue to work there and uphold my oath to protect and defend the Constitution, let alone maintain my own moral compass. And so I took a stand and I left.
Scholten soon got a new job at the Michigan Immigrant Rights Center. But almost as soon as she arrived, her work—and the work of many other immigration attorneys across the country—was thrown into chaos. Things got especially bad as it became clear the Department of Homeland Security was separating migrant children from their parents at the border, leaving lawyers and advocates to figure out what to do next. That’s when Hillary Scholten started seriously considering a run for Congress.
At the height of the family separation crisis, our agency was responsible for helping reunite and represent so many children. Imagine a legal services waiting room that turned into a virtual day care center overnight with kids who didn’t know where their parents were. And there were a lot of reasons I raised my hand to run, but no doubt I can pinpoint the moment when I was like, “Oh, hell no, I got to do more.” It’s the height of the summer. My dear husband came to visit me at work. It was going to be a late night, and he brought me an iced coffee. And we were chatting, and we walked through our waiting room. He’s normally a pretty stoic guy, and he fell silent. And I turned and looked at him, and his eyes had just filled with tears. And I realized that we had walked past a set of three siblings, all dressed in their Sunday best, between the ages of 5 and 7. That’s how old our children were at the time. And he just said, “Hill, you see this stuff on the news. It is an entirely different level to look these children in the eye.”
One of our youngest clients was separated from his parents at 4 months old. You’re not just walking away from a parent. You’re being taken from their arms.
Five years later, this investigation by the New York Times has Scholten thinking about different ways to help migrant children. Just this past weekend, she returned to her district to connect with constituents and think about how she can intervene, now that her community’s child labor problem is no longer a secret. She can already see the way the news has rippled outward.
One of the saddest things about the fallout of all of this is that there has continued to be some real discontent within the immigrant communities here, where shining a light on the exploitation of children has also shined a light on the fact that there have been so many other individuals working without authorization in these factories. And as companies have started to look into who’s actually working here, their labor pool has vanished. Hearthside, after the Times ran the investigation, said they were going to be doing inspections on the manufacturing floor, and 75 percent of their workforce didn’t show up the next day.
. . . .
**************************
Read/listen to the full interview at the above links.
As Hillary says, the BIA is “a really powerful agency.” That’s exactly why the Trump Administration “packed” it with unqualified restrictionist “Appellate Judges” known for their anti-asylum bias and astronomical asylum denial rates!
That’s also why Biden, Harris, and Garland’s near-complete failure to “clean up the BIA” and the rest of the failed EOIR “judiciary” and bring in the “best legal minds in the business” to establish a model progressive expert judiciary is such a scandal and indicator of the repeated failure of Dem Administrations to take advantage of the transformational opportunities given them.
By contrast, whether we like it or not, the far right extremist GOP knows exactly how important the Immigration Courts are and accordingly acts decisively to weaponize, pack, “dumb down,” and co-opt them in their nativist battle to dehumanize and demonize migrants. This was a key “first step” in the GOP’s attack on all of the “others” in America! Transgender youth, African Americans, women, Asian Americans, Hispanic Americans, and others being targeted by the GOP’s nationwide assault on their rights, humanity, and the truth about our history might look to the Biden Administration’s fecklessness in dealing with immigrants’ rights and human rights to understand how they are being “left out on a limb” by a Dem Administration — more interested in its re-election than in serving those who helped put them in office.
Hillary had the guts and moral courage to take a stand. Yet, Biden, Harris, Garland, Mayorkas and others in this Administration, not so much! Frankly, that’s appalling! 🤮
“It is an entirely different level to look these children in the eye.” This encapsulates the problems of immigration, human rights, child abuse, and racial injustice! Unlike Hillary, very few legislators, Federal Judges, Biden politicos, or GOP nativist Governors and AGs have ever had to get their “hands dirty” by “looking . . . in the eyes” of children and others whom they abuse, dehumanize, and bully on a regular basis!
Attribution: ROLLING BACK CHILD LABOR PROTECTIONS by Randall Enos, Easton, CT Republished under license.
Contrast Hillary’s “hands on” experience and search for bipartisan practical solutions with the predictable stupidity and abuse by GOP Arkansas Governor Sarah Huckabee Sanders, a living incarnation of the “Peter Principle,” who recently and gleefully signed into law an insane provision reducing child labor protections in Arkansas while incredibly claiming that protecting children was “burdensome and obsolete!”
The law eliminates requirements for the state to verify the age of children younger than 16 before they can take a job.
Sanders believes the provision was “burdensome and obsolete,” spokeswoman Alexa Henning said in an emailed statement.
Ark. Gov. Huckabee Sanders’s MAGA “child welfare plan” has its Anglo-Saxon roots firmly planted in the famous British workhouses that many GOP politicos admire! Public Realm
As part of their “willful blindness” to the deterioration of American democracy, the so-called “mainstream media” often likes to falsely portray GOP Governors as presenting a “saner” alternative to America’s leading liar/insurrectionist “The Donald.” But, as Sanders, DeSantis, Abbott, Youngkin, and others remind us on a regular basis, there are some REALLY BAD GOP Governors out there who are every bit as much a threat to America’s future as Trump!
Judge William Van Wyke (D -Aug. 14, 2022) U.S. Immigration Judge (Ret.) Member Round Table of Former Immigration Judges “A True Due Process Visionary” PHOTO: the world.com
An invitationfrom the family of Judge William Van Wyke:
Please join us to celebrate the remarkable life of William Peter Van Wyke on Saturday, April 1, 2023. We will hold a remembrance at River Road Unitarian Church, 6301 River Road, Bethesda, MD, from 10 AM to noon, followed by an afternoon of food, drinks, music, and fun at the nearby Carderock Recreation Area Pavilion along the Potomac River.
The family invites and welcomes all who knew William and would be interested in attending.
🇺🇸 Due Process Forever! (A very “William Van Wyke” thing!)
Immigration Court can be a daunting experience even for veteran litigators. For folks like this, alone with no representation, it’s “mission impossible.” Yet Biden A.G. Merrick Garland has done little to fix the systemic “user unfriendliness” and sometimes outright hostility to pro se litigants in his totally dysfunctional “courts in name only!” (“CINOs”). PHOTO: Victoria Pickering, Creative Commons License
Clearly, gimmicks rolled out by Garland and the Biden Administration, including stunts like “dedicated dockets,” “expedited dockets,” “Aimless Docket Reshuffling,” detention courts in the middle of nowhere, unregulated bond procedures, lousy precedents, wasteful litigation against practitioners, proposed regulations irrationally “presuming” denial of asylum, abuse of Title 42, assigning asylum seeker resettlement to GOP nativists like DeSantis and Abbott, and refusal to bring in qualified experts with Immigration Court experience to fix this disasterous system have made the already horrible plight of the unrepresented worse! See, e.g.,https://trac.syr.edu/immigration/reports/674/.
With respect to DHS detainees awaiting hearing, a few are subject to so-called “mandatory detention without independent review” as a result of statutes. Others are imprisoned because ICE claims that they are so-called “arriving aliens” (a designation that even some IJs struggle with, but that has huge consequences for a respondent), “likely to abscond,” or ”security risks!”
But, a significant “unstated purpose” of immigration detention, often in substandard conditions, is to coerce detainees into giving up legal rights or waiving appeals and to punish those who stubbornly insist on asserting their rights.
When the almost inevitable “final order of removal” comes, officials in Administrations of both parties believe, without much empirical evidence, that detainees will serve as “bad will ambassadors,” carrying back woeful tales of wonton cruelty and suffering that will “deter” others from darkening the doors of “the world’s most generous nation.”
In spite of this overall “institutionalized hostility,” there is a small, brave cadre of “due process/fundamental fairness heroes” known as the Office of Legal Access Programs, or “OLAP” at EOIR!Forced into “the darkest corners of the EOIR Tower dungeon” during the reign of terror of “Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr, they have finally been released into daylight.
The Dungeon Former A.G. Jeff “Gonzo Apocalypto” Sessions had a special place in the EOIR Falls Church Tower for those trying to assist pro se litigants in Immigration Court. Public Realm
But, make no mistake about it — these courageous folks at OLAP aren’t helping to “drive the train” at EOIR under Biden and Garland, as they certainly should be! No, as was the case before Trump, they are racing down the station platform to catch the train as it departs without them.
How do I know? It’s actually pretty obvious. If Garland & the Administration were actually serious about promoting representation, they would:
Require a positive report from the OLAP before opening any new Immigration Court;
Subject all existing detained “courts” (that aren’t really “courts” at all, within the common understanding of the term) to an OLAP analysis, involving input from the pro bono bar, and close any location where pro bono counsel can’t be made reasonably available to all detainees who want it;
Make part of the IJ hiring process input from the OLAP and the public into the demonstrated commitment of each “finalist” for an Immigration Judge position to working to maximize representation; and
Work with outside programs like Professor Michelle Pistone’s innovative “VIISTA Villanova Program” for training accredited representatives to “streamline and expedite” the Recognition & Accreditation process housed within OLAP.
To my knowledge, none of these obvious “first steps” to address the representation crisis at EOIR have been instituted. Tells us about all we need to know about the real importance of the OLAP in Garland’s galaxy.
Recently, I had the pleasure of meeting with Alicia de La O, her attorneys, and interns at the ABA who are helping the OLAP “staff” the “pro se hotlines” for detainees in immigration proceedings. Of course, they can’t provide “legal advice,” although they can direct pro se litigants to available “self help” materials prepared by OLAP and reliable pro bono NGOs. But, as I pointed out, just being available to speak with isolated detainees, listen sympathetically, and direct them to available resources is a “big deal” from both a human and a practical perspective.
Alicia de la O Senior Attorney/Chief Counsel, ABA Commission on Immigration PHOTO: Linkedin
Remarkably, the amazingly talented, informed, and energetic undergraduate internsworking with the ABA had a far better understanding of the corrosive effect on democracy and America’s future of the mocking of due process, fundamental fairness, racial justice, and human dignity in Immigration Courts than inept and often clueless Biden Administration so-called “immigration policy officials” have acknowledged with their words and deeds. Indeed, one of the undergraduate interns had already completed the VIISTA program. He therefore probably knows more about the Immigration Courts at the “retail level” than some of the clowns Garland has running EOIR!
The energy and commitment of these interns to take on existential challenges that our “leaders” from both parties have shunned, gave me some hope for America’s future. That is, if democracy can survive the overt attacks from the right and its tepid defense by Democrats, by no means an assured outcome.
This opportunity to meet with those working on the front lines of helping the most isolated, vulnerable, and intentionally neglected among us got me thinking about what I might say to a pro se litigant stuck in the “EOIR purgatory,” based on my experience. I note, with some pride, that during my time on the trial bench, almost every pro se individual who wanted to appeal one of my orders was able to file timely with the BIA based on the detailed instructions I gave them at the end of the hearing.
So, as promised, here’s “my list!”
PRO SE CHECKLIST
Judge (Ret.) Paul Wickham Schmidt
March 1, 2023
1) Be careful in filing out the I-589. Everything in the application, including mistakes, omissions, and failure to answer questions can be used AGAINST you at the hearing. Filing a fraudulent application can have severe consequences beyond denial of your case.
2) Do NOT assume that significant omissions or errors in the I-589 can be corrected or explained at the hearing without adverse consequences.
3) If you use a translator, ask that the application be read back to you in FULL for accuracy, before signing. Generally, there is no such thing as an “insignificant error” on an asylum application. All inaccuracies can and will be considered by the IJ in determining whether you are telling the truth.
4) Obtain any relevant documentation supporting the claim and attach to the application. All documents in a foreign language MUST be translated into English. A certificate of accuracy from the translator must also accompany the document. DO NOT expect the court interpreter to translate your documents during the hearing.
5) Understand NEXUS to a “protected ground;” merely claiming or even proving that you will suffer harm upon return is NOT sufficient to win your case; many pro se cases fail on this basis.
6) Any pro se case claiming a “Particular Social Group” will need help in formulating it. Do NOT expect the IJ or ACC to assist in defining a qualifying PSG.
7) Keep a copy of the application and all evidence submitted.
8) Sign your application.
9) Make sure that the original signed copy goes to the Immigration Court and a copy to the ACC.
10) Keep documents submitted by ICE or the Immigration Court.
11) Do NOT rely on your translator, friends, relatives, or “jailhouse lawyers” for advice on filling in the application. NEVER embellish or add incorrect information to your I-589 just because someone else tells you to or says it’s “the only way to win your case.”
12) DO NOT let friends, detention officers, the IJ or anyone else (other than a qualified lawyer working for you) talk you out of pursuing a claim if everything in it is true. You must “tune out chatter” that everybody loses these cases, and therefore you are wasting your time.
13) Do NOT tell the IJ and/or ACC that everything in your application is true and correct if it is not true!
14) If you discover errors in your application before the hearing, ask the IJ at the beginning of the hearing for an opportunity to correct them. Do NOT wait to see if the ACC brings them up.
15) If you will be testifying through an interpreter, ask the IJ for a brief chance to converse with the interpreter before the hearing to make sure you understand each other. If there is any problem, tell the IJ BEFORE the hearing begins.
16) The Immigration Court hearing is a formal, adversary hearing, NOT an “informal interview” like the Asylum Office.
17) Be courteous and polite to the Immigration Judge, the ICE Assistant Chief Counsel, and the interpreter at all times, BUT BE AWARE:
1) The IJ and the ACC are NOT your friends;
2) They do NOT represent your interests;
3) The ACC’s basic job is to urge the IJ to deny your application and enter an order of removal;
4) The IJ is NOT an independent judge. He or she works for the Attorney General a political enforcement official. Some IJs function with a reasonable degree of independence. But, others see themselves largely as assisting the ACC in in denying applications and rapidly turning out removal orders.
5) The interpreter works for the court, NOT you.
18) YOU will be the only person in the courtroom representing your interests.
19) Don’t answer a question that you don’t understand. Ask the IJ to have it repeated. If it is a complicated question, ask the IJ if it can be broken down into distinct parts.
20) If you really don’t know the answer to a question, don’t “guess!” “I don’t know, your honor” is an acceptable answer, if true.
21) If the ACC introduces evidence at the hearing — say a copy of the Asylum Officer’s notes — ask the IJ for a full translation through the interpreter before answering questions.
22) If documents you submitted support your claim, direct the IJs attention to those documents.
23) When it is time for the IJ to deliver an oral decision, make sure that you are allowed to listen through the interpreter.
24) Bring a pencil or pen and a pad of paper to the hearing. Try to take notes on the decision as it is dictated by the IJ.
25) If the decision goes against you, tell the IJ that you want to reserve an appeal and request copies of the appeal forms. You can always withdraw the appeal later, but once an appeal is waived it is difficult, often impossible, to restore it.
26) If the IJ rules in your favor, and the ACC reserves appeal, understand that the order in your favor will have no effect until the appeal is withdrawn or ruled upon by the BIA. For detained individuals, that probably means remaining in detention while the appeal is resolved, which might take months.
27) If you appeal, fill out the forms completely according to instructions and file with the BIA as soon as possible, the same or next day if you can. That is when your memory will be best, and it maximizes the chance of the BIA receiving your appeal on time. Do NOT wait until the last minute to file an appeal.
28) Be SPECIFIC and INCLUSIVE in stating why you think the IJ was wrong. Attach a separate sheet if necessary. Just saying “The Judge got it wrong” or “I disagree with the decision” won’t be enough and might result in the BIA rejecting your appeal without further review.
29) Remember to file the separate fee waiver request form with the Notice of Appeal.
30) Assume that all filing deadlines will be strictly applied and that pro se applicants will NOT be given any breaks or special treatment, despite mailing difficulties and other problems.
31) DON’T count on timely mail delivery. The Notice of Appeal, brief, or any other document is not “filed” with the BIA until they actually receive it. Merely placing it in the mail before the due date will NOT be considered a timely filing if the document arrives late. Mail early!
32) If you are not in detention, use a courier service to deliver filings to the BIA so you have solid evidence of timely filing.
33) If you check the box on the appeal form saying you will file a brief or additional statement, you MUST do so, even if short. Failing to file a brief or written statement after checking that box can be a ground for the BIA to summary dismiss your appeal without considering the merits.
34) Info about the BIA Pro Bono Project.
NOTICE: The ideas above are solely mine. They are not legal advice, and have not been endorsed or approved by any organization or any other person, living or dead, born or unborn.
Garland whiffs again. His mind appears to be on Ukraine not solving the mess in his courts or the ongoing violations of human rights of asylum seekers on his watch. “Strikeout” Attribution: Creative Commons 2.0“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up” —- Poor little guy might have expected a helping hand from a Dem Administration. But his predicament has actually gotten worse under Gartland!
“Plaintiffs commenced this action on July 31, 2020, alleging violations of the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment, seeking an order enjoining Defendants from compelling attorneys to appear at the Newark Immigration Court for in-person proceedings, and seeking an order compelling Defendants to provide attorneys with an option for hearings at the Newark Immigration Court by remote videoconference … ORDERED that absent emergent circumstances, Webex motions must be filed electronically or postmarked at least fifteen (15) days prior to scheduled hearings. Emergent circumstances include, but are not limited to, contracting COVID-19 or coming into immediate exposure with a person who has contracted COVID-19 within the fifteen (15) day period; and it is further ORDERED that Newark Immigration Judges must issue a decision in deciding a Webex motion and clearly state the case-specific reasons upon which the decision is based, and such decisions must be signed and dated; and it is further ORDERED that if a Newark Immigration Judge does not issue a decision regarding a Webex motion 48 hours prior to the relevant hearing, the motion will be deemed granted by the Newark Immigration Judge, and the hearing will be conducted by WebEx. The 48-hour requirement applies only to motions made at least fifteen (15) days prior to the scheduled hearings and does not apply to emergent motions…”
“Akiva Shapiro, an attorney for the AILA, said in an email to Law360 on Thursday that the order “is a home run for us.” “We are thrilled that New Jersey immigration attorneys and their vulnerable clients are once again assured access to remote immigration hearings, and that the immigration court will no longer be able to force them to choose between risking their lives and staving off deportation and other severe consequences,” Shapiro said. He noted that attorneys with the DHS had taken a different stance than the EOIR. “Even the government’s own immigration enforcement lawyers supported us and testified that the Newark immigration court was risking their health in failing to provide meaningful access to remote hearings. That’s how bad the situation was at the Newark court,” Shapiro said.” – Read more at: https://www.law360.com/immigration/articles/1581757/judge-orders-nj-imm-court-to-decide-remote-requests
***********************
Ever wonder why there are astounding backlogs at EOIR and DOJ won’t take a stand for fair treatment of asylum seekers at the border?
This pathetic, unprofessional, dilatory “defense of the indefensible” says much about the trajectory of DOJ under Garland! Also, it shows how under Garland, DOJ wastes time and money creating problems rather than solving them!
Competence, leadership, standards, professionalism, accountability — all missing at DOJ under Garland!
Is there ANY reason a “real” Federal Judge had to intervene to micromanage EOIR through this ridiculous self-created problem!
Folks, this is the “low hanging fruit” of governing! The Judge found that EOIR violated a stipulated order. Heck, DHS attorneys testified against the DOJ in this case! EOIR’s “expert” reportedly undermined their inane position! Yet, Garland let this nonsense continue to unwind and waste a U.S. District Court’s time.
There were plenty of opportunities for “higher ups” in the DOJ to end this farce. They failed to do so!
Remember, all this stupid resistance was to a program slated to end in May! The Judge basically begged the DOJ to do its job and settle this case! It fell on deaf ears!
Simply incredible! I take that back. “Incredible” understates the case; it’s insane! Totally! 🤯
As Garland wanders around Ukraine, the U.S. continues to violate human rights and international agreements at the Southern border on a daily basis. The DOJ takes anti-human-rights positions in Federal Court. Asylum denying IJs continue to run amok at EOIR. And, a U.S. District Judge has to take over daily administration of the New Jersey Immigration Courts because Garland won’t bring in competent expert leadership who can and will do the job!
