☠️🤮 TAKE MY UPDATED “TOUR” OF AMERICA’S STAR CHAMBERS, A/K/A “EOIR” — “Due Process Doesn’t Live Here Any More!”

Star Chamber Justice
“Justice”
Star Chamber
Style

DUE PROCESS DOESN’T LIVE HERE ANY MORE: WEAPONIZED IMMIGRATION COURTS ARE AMERICA’S STAR CHAMBERS

By

Paul Wickham Schmidt

Retired U.S. Immigration Judge

“Immigration 101”

Renaissance Institute

 Notre Dame University of Maryland in Baltimore

April 18, 2023

 

I.  INTRODUCTION

 

Good morning. Thank you so much for inviting me, and for coming out on this beautiful Spring day. It’s an honor to be here. 

 

Today, I’m going to tell you the sad story of how our Immigration Courts, housed in an agency called the Executive Office for Immigration Review (acronym “EOIR” for you “Winnie The Pooh” fans) within the U.S. Department of Justice, went from being the “Jewel in the Crown” to becoming “America’s Star Chambers,” where due process and human dignity are trampled daily. I will intertwine EOIR’s saga with my own career. Because, in many ways, my history and EOIR’s are the same. But, there’s a larger story in here that I hope you will pick up and that will tie together much of what you will learn in class.

 

Now, this is when I used to give my comprehensive disclaimer providing “plausible deniability” for everyone in the Immigration Court System if I happened to say anything inconvenient or controversial. But, now that I’m retired, we can skip that part.

 

However, I do want to hold Professor Rabben, the Renaissance Institute, the University, your faculty, trustees, you, and anybody else of any importance whatsoever “harmless” for my remarks which are solely my own views. No party line, no bureaucratic doublespeak, no sugar coating, no BS. Just the truth, the whole truth, and nothing but the truth, as I see and have lived it for five decades.

 

Also, because today is Tuesday, and you are such a great audience, I’m giving you my famous, industry-best, absolute, unconditional, money-back guarantee that this talk will be completely free from computer-generated slides, power points, or any other type of distracting modern technology that might interfere with your total comprehension or listening enjoyment. In other words, I am your “power point.” 

 

II. CAREER SUMMARY

 

I graduated in 1970 from Lawrence University a small liberal arts college in Appleton, Wisconsin, where I majored in history. My broad liberal arts education and the intensive writing and intellectual dialogue involved were the best possible preparation for all that followed. 

I then attended the University of Wisconsin School of Law in Madison, Wisconsin, graduating in 1973. Go Badgers! 

 

I began my legal career in 1973 as an Attorney Advisor at the Board of Immigration Appeals (“BIA”) at the U.S. Department of Justice (“DOJ”) under the Attorney General’s Honors Program. Admittedly, however, the BIA’s Executive Assistant culled my resume from the “Honors Program reject pile.” 

 

At that time, before the creation of the Executive Office for Immigration Review – “EOIR” — the Board had only five members and nine staff attorneys, as compared to today’s cast of thousands. Among other things, I worked on the famous, or infamous, John Lennon case, which eventually was reversed by the Second Circuit Court of Appeals.[1]  

The Chairman of the BIA at that time was the legendary “immigration guru” Maurice A. “Maury” Roberts. Chairman Roberts took me under this wing and shared his love of immigration law, his focus on sound scholarship, his affinity for clear, effective legal writing, and his humane sense of fairness and justice for the individuals coming before the BIA. A sense, I might add, that is conspicuously absent from today’s EOIR.

 

In 1976, I moved to the Office of General Counsel at the “Legacy” Immigration and Naturalization Service (“INS”). There, I worked for another legendary figure in immigration law, then General Counsel Sam Bernsen. Sam was a first-generation immigrant who started his career as a 17-year-old messenger at Ellis Island and worked his way to the top of the Civil Service ranks. Perhaps not incidentally, he was also a good friend of Chairman Roberts. 

 

At that time, the Office of General Counsel was very small, with a staff of only three attorneys in addition to the General Counsel and his Deputy, another mentor and immigration guru, Ralph Farb. At one time, all three of us on the staff sat in the same office! 

 

In 1978, Ralph was appointed to the BIA, and I succeeded him as Deputy General Counsel.  I also served as the Acting General Counsel for several very lengthy periods in both the Carter and Reagan Administrations. 

 

Not long after I arrived, the General Counsel position became political. The incoming Carter Administration encouraged Sam to retire, and he went on to become a name and Managing Partner of the Washington, D.C. office of the powerhouse immigration boutique Fragomen, Del Rey, and Bernsen. He was replaced by my good friend and former colleague, the late Judge David Crosland, who selected me as his Deputy. Dave was also the Acting Commissioner of Immigration during the second half of the Carter Administration, one of the periods when I was the Acting General Counsel. 

 

The third General Counsel that I served under, during the Reagan Administration, was one of my most “unforgettable characters:” the late, great Maurice C. “Mike” Inman, Jr. He was known, not always affectionately, as “Iron Mike.” His management style was something of a cross between the famous coach of the Green Bay Packers, Vince Lombardi, and the fictional Mafia chieftain, Don Corleone. 

 

Although we were totally different personalities, Mike and I made a good team, and we accomplished amazing things. It was more or less a “good cop, bad cop” routine, and I’ll let you guess who played which role. 

 

Among other things, I worked on the Iranian Hostage Crisis, the Cuban Boatlift, the Refugee Act of 1980, the Immigration Reform and Control Act of 1986 (“IRCA”), the creation of the Office of Immigration Litigation (“OIL”), and establishing what has evolved into the modern Chief Counsel system at Department of Homeland Security (“DHS”). 

 

I also worked on the creation of EOIR in 1983, which combined the Immigration Courts, which had previously been part of the INS, with the BIA to improve judicial independence. Interestingly, and perhaps ironically, the leadership and impetus for getting the Immigration Judges into a separate organization came from Mike and the late Al Nelson, who was then the Commissioner of Immigration. Prosecutors by position and litigators by trade, they saw the inherent conflicts and overall undesirability, from a due process and credibility standpoint, of having immigration enforcement and impartial court adjudication in the same division. 

 

I find it disturbing that officials at today’s DOJ have actually recreated and aggravated many of the problems and glaring conflicts of interest that EOIR originally was created to overcome. Indeed, as I will discuss later, they have allowed the Immigration Courts to become “weaponized” as a tool of immigration enforcement. 

For example, former Attorney General Jeff Sessions unethically and improperly referred to supposedly fair and impartial Immigration Judges as “in partnership” with DHS enforcement. A.G. Garland has done little to dispel this notion.

 

By the time I left in 1987, the General Counsel’s Office, largely as a result of the enactment of IRCA and new employer sanctions provisions, had dozens of attorneys, organized into divisions, and approximately 600 attorneys in the field program, the vast majority of whom had been hired during my tenure.

 

In 1987, I resigned from INS and joined Jones Day’s DC Office, a job that I got largely because of my wife Cathy and her “old girl network.” I eventually became a partner specializing in business immigration, multinational executives, and religious workers. Among my major legislative projects on behalf of our clients were the special religious worker provisions added to the law by the Immigration Act of 1990 and the “Special Immigrant Juvenile” provisions of the INA. 

 

Following my time at Jones Day, I succeeded my former boss and mentor Sam Bernsen as the Managing Partner of the DC Office of Fragomen, Del Rey & Bernsen, the leading national immigration boutique, where I continued to concentrate on business immigration. Immigration is a small community; you need to be nice to everyone because you keep running into the same folks over and over again in your career. While at Fragomen, I also assisted the American Immigration Lawyers Association (“AILA”) on a number of projects and was an asylum adviser to the Lawyers’ Committee on Human Rights, now known as Human Rights First. 

 

In 1995, then Attorney General Janet Reno appointed me Chairman of the BIA. Not surprisingly, the late Janet Reno was my favorite among all of the Attorneys General I worked under. I felt that she supported me personally, and she supported the concept of an independent judiciary, even though she didn’t always agree with our decisions and vice versa. 

 

She was the only Attorney General who consistently came to our Investitures and Immigration Judge Conferences in person and mixed and mingled with the group. She had a saying “equal justice for all” that she worked into almost all of her speeches, and which I found quite inspirational. 

 

She was also hands-down the funniest former Attorney General to appear on “Saturday Night Live,” doing her famous “Janet Reno Dance Party” routine with Will Farrell immediately following the end of her lengthy tenure at the DOJ.  Can you imagine Jeff Sessions, Bill Barr, or Merrick Garland making live appearances on SNL, and laughing at themselves. Not likely! 

 

Among other things,  as Chair, I oversaw an expansion of the Board from the historical five members to more than 20 members, a more open selection system that gave some outside experts a chance to serve as appellate judges on the Board, the creation of a supervisory structure for the expanding staff, the establishment of a unified Clerk’s Office to process appeals, implementation of a true judicial format for published opinions, institution of bar coding for the tens of thousands of files, the establishment of a pro bono program to assist unrepresented respondents on appeal, the founding of the Virtual Law Library, electronic en banc voting and e-distribution of decisions to Immigration Judges, and the publication of the first BIA Practice Manual, which actually won a “Plain Language Award” from then Vice President Gore. 

 

I also wrote the majority opinion in my favorite case, Matter of Kasinga, establishing for the first time that the practice of female genital mutilation (“FGM”) is “persecution” for asylum purposes.[2]  The “losing” attorney in that case was none other than my good friend, then INS General Counsel David A. Martin, a famous emeritus immigration professor at University of Virginia Law, who personally argued before the Board. 

 

In reality, however, by nominally “losing” the case, David actually won the war for both of us, and more important, for the cause of suffering women throughout the world. We really were on the same side in Kasinga — the side of protecting vulnerable women. 

 

During my tenure as Chairman, then Chief Immigration Judge (now BIA Judge) Michael J. Creppy and I were founding members of the International Association of Refugee Law Judges (“IARLJ”). This organization, today headquartered in The Hague, promotes open dialogue and exchange of information among judges from many different countries adjudicating claims under the Geneva Convention on Refugees. 

 

In 2001, under pressure from the incoming Bush Administration and new Attorney General John 

Ashcroft, I stepped down as BIA Chairman, but remained as a Board Member until April 2003. At that time, Ashcroft, who was not a fan of my opinions, invited me to vacate the Board and finish my career at the Arlington Immigration Court, where I remained until my retirement on June 30, 2016. 

 

So, I’m one of the few ever to become an Immigration Judge without applying for the job. Or, maybe my opinions, particularly the dissents, were my application and I just didn’t recognize it at the time. But, it turned out to be a great fit, and I truly enjoyed my time at the Arlington Court.

 

I have also taught at George Mason School of Law and at Georgetown Law where I am still an Adjunct Professor. 

 

As a sitting judge, I encouraged meticulous preparation and advance consultation with the DHS Assistant Chief Counsel to stipulate or otherwise narrow issues. There currently are approximately two million pending cases in Immigration Court, a backlog that grows every day. Because of this overwhelming workload, efficiency and focusing on the disputed issues in court are particularly critical.

 

III. THE DUE PROCESS VISION

 

Now, let’s move on to the other topics: First, vision. The “EOIR Vision” once was: “Through teamwork and innovation, be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” In one of my prior incarnations, I was part of the group that developed that now abandoned and disrespected vision statement. Perhaps not surprisingly given the timing, that vision echoed the late Janet Reno’s “equal justice for all” theme. 

 

Sadly, the Immigration Court System has moved ever further away from that due process vision. Instead, years of neglect, misunderstanding, mismanagement, and misguided priorities imposed by the U.S. Department of Justice have created judicial chaos with an expanding backlog now at an astounding two million cases, continuing to grow, with no clear plan for resolving them in the foreseeable future. Indeed, former AG Sessions actually maliciously and intentionally tried to add a potential 300,000 previously closed cases to those already on the active docket. 

 

There are now more pending cases in Immigration Court than in the entire U.S. District Court System. Notwithstanding the hiring of hundreds of new judges by the past two Administrations, most in the Trump Administration from the ranks of Government prosecutors, the backlog continues to grow by leaps and bounds.

 

The Government has added hundreds of thousands, of new cases to the Immigration Court docket, again without any transparent plan for completing those already pending cases consistent with due process and fairness. They have done this despite efforts by the Biden Administration to re-establish sensible enforcement priorities and prosecutorial discretion that were trashed by the Trump Administration. 

 

Even under Attorney General Garland, inexcusably, the “flavor of the day” is haphazardly advanced before pending cases which, in turn, are “orbited” to the end of the years long line. This results in what I call “Aimless Docket Reshuffling” or “ADR, EOIR-style.” 

Notably, and most troubling, the only things that aren’t “priorities” for any Administration are fairness and due process in the immigration hearing process which have clearly been “thrown from the train” as the deportation express hurtles down the track. The Due Process Clause of the U.S. Constitution – has become “the enemy” in today’s disgracefully dysfunctional Immigration Courts.

 

Nobody has been hit harder by this preventable disaster than asylum seekers, particularly scared women and children fleeing for their lives from the Northern Triangle of Central America. In Immigration Court, notwithstanding the life-or-death issues at stake, unlike criminal court there is no right to an appointed lawyer. 

 

Individuals who can’t afford a lawyer must rely on practicing lawyers who donate their time or on nonprofit community organizations to find free or low-cost legal representation. Although the Government stubbornly resists the notion that all asylum seekers should be represented, studies show that represented asylum seekers are at least five times more likely to succeed than those who must represent themselves. For recently arrived women with children, the success differential is an astounding fourteen times![3] 

Although the Biden Administration promised to do better, they actually are using somewhat improved technology to make matters worse for lawyers, mindlessly overbooking cases without advance consultation with counsel — sometimes simultaneously scheduling cases for the same attorney in different cities at the same time.

 

An Assistant Chief Judge for Training in the Obama Administration infamously claimed that he could teach immigration law to unrepresented toddlers appearing in Immigration Court. Issues concerning representation of so-called “vulnerable populations” continue to haunt our Court System. Even with Clinics and Non-Governmental Organizations pitching in, there simply are not enough free or low-cost lawyers available to handle the overwhelming need. 

 

To make matters worse, Administrations of both parties engage in a number of legally questionable and morally reprehensible “gimmicks” and “schemes” to keep asylum applicants at the Southern Border from getting fair hearings in Immigration Court.  

Whether it’s “dedicated dockets,” Remain in Mexico, abusive use of Title 42, family detention, child separation, invented “bars” to asylum, or forcing applicants stranded in dangerous conditions in Mexico to use failing technology to schedule appointments, the objective is to prevent asylum applicants from receiving due process. Instead, they are often wrongfully “orbited” back to Mexico, Guatemala, Haiti, Honduras, and El Salvador.

 

These are among the world’s most dangerous countries, some basically without functional governing systems. Once there, many suffer kidnapping, extortion, rape, torture, and even death at the hands of the same forces from which they originally fled. 

 

It’s a total and intentional perversion of asylum law and American values. Worst of all, complicit Article III Courts, all the way up to the Supreme Court, regularly “tank” in their duties to protect asylum applicants’ legal and constitutional rights. Instead, they “go along to get along” or pretend not to see or understand the grotesque human tragedy that they have enabled.

Customs and Border Protection officials brag about how limiting or eliminating asylum protections helps solve “the problem” and “reduce the numbers” at our Southern Border. In their view, refugees seeking legal protections under our laws and international conventions are a “problem” and human lives are merely “numbers” to be “reduced.” 

 

It’s part of a concerted effort to “dehumanize the other” and convert them to “non-persons” under the law.  I call this “Dred Scottification” after the infamous pre-Civil War Supreme Court case that declared that Blacks were not “persons” under our Constitution, although I hardly originated this term.

 

Notwithstanding today’s legal, Constitutional, and human rights disaster, I, for one, still believe that with proper enlightened leadership and some guts the “EOIR vision” could be fulfilled.

 

IV. THE ROLE OF THE IMMIGRATION JUDGE

 

Changing subjects, to the role of the Immigration Judge: What’s it like to be an Immigration Judge? As an Immigration Judge, I was an administrative judge. I was not part of the Judicial Branch established under Article III of the Constitution. 

The Attorney General, part of the Executive Branch, appointed me, and my authority was subject to her regulations. I might add that I also served at her pleasure, something that GOP Administrations “get,” but ineffectual Democratic Administrations, not so much.   And, that has lots to do with the abysmal state of justice in the Immigration Courts under Garland.

 

We should all be concerned that the U.S. Immigration Court system, between 2017 and 2021, was totally under the control of Attorneys General Jeff Sessions and Bill Barr, who consistently took negative views of immigrants, both legal and undocumented. Both failed to recognize the many essential, positive contributions that immigrants make to our country. They were also unfailingly biased against migrants in Immigration Court and their attorneys, in their negative and unethical “precedents,” and in prosecutor-friendly, immigration experience light, criteria for appointing new Immigration Judges and Appellate Judges at the BIA.

 

Indeed, in February 2020, a group of more than 2,500 former DOJ officials from Administrations of both parties, including me and many of my colleagues from the Round Table of Former Immigration Judges, took the extraordinary step of publicly calling on Barr to resign for corruption and compromising the independent role of the DOJ.[6] Among other things, we “strongly condemn[ed] President Trump’s and Attorney General Barr’s interference in the fair administration of justice.” Certainly, that was reflected in his mishandling of the Immigration Courts and “weaponizing” them against migrants and their lawyers

The late Judge Terence T. Evans of the Seventh Circuit Court of Appeals offered one of the best descriptions of what it’s like to be an Immigration Judge: 

Because 100 percent of asylum petitioners want to stay in this country, but less than 100 percent are entitled to asylum, an immigration judge must be alert to the fact that some petitioners will embellish their claims to increase their chances of success. On the other hand, an immigration judge must be sensitive to the suffering and fears of petitioners who are genuinely entitled to asylum in this country. A healthy balance of sympathy and skepticism is a job requirement for a good immigration judge. Attaining that balance is what makes the job of an immigration judge, in my view, excruciatingly difficult.[5]

 

My good friend and colleague, Judge Dana Leigh Marks of the San Francisco Immigration Court, who is the past President of the National Association of Immigration Judges, offers a somewhat pithier description:  “[I]mmigration judges often feel asylum hearings are ‘like holding death penalty cases in traffic court.’”[7]

 

An actual practitioner before today’s dysfunctional Immigration Courts was even blunter in an interview appearing in Mother Jones, one of my favorite scholarly publications: “An [expletive deleted] disaster that is designed to fail.”[7]

 

Certainly, balance, Due Process, and fundamental fairness have been sacrificed in today’s Immigration Courts in favor of expediency and “weaponizing” the Immigration Courts as tools of DHS enforcement. In other words, they are now structured to be little more than a whistle-stop on the deportation express as the complicit Article IIIs look on. 

Barr even took the extreme, unethical, step of moving to “decertify” the Immigration Judges union, the National Association of Immigration Judges (“NAIJ”), of which, for full disclosure, I am a retired member. Actually, I believe my appearance here today was arranged through Linda contacting the NAIJ!

 

One of the keys to the Immigration Judge’s job is supposed to be issuing scholarly, practical, well-written opinions in the most difficult cases. That ties directly into the job of the Immigration Court’s Judicial Law Clerks (“JLCs”) assisted by legal interns from local law schools. Obviously, however, quality and care took a back seat to “productivity” under the Trump Administration’s program of “dumbing down” the Immigration Courts — not by any means effectively countermanded under Garland. Indeed, the already-strained ratio of Immigration Judges to judicial law clerks has gotten much worse over the past few years. 

V. RECLAIMING THE VISION 

Our Immigration Courts are going through an existential crisis that threatens the very foundations of our American Justice System. Earlier, I told you about my dismay that the noble due process vision of our Immigration Courts has been derailed and trashed. What can be done to re-establish it?  

 

First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. We must end the improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers. 

 

Ultimately, that will take an independent Article I Immigration Court, which has been supported by groups such as the ABA, the FBA, and the NAIJ, and was introduced in the last Congress by Subcommittee Chair Zoe Lofgren (D-CA).  

Indeed, in February 2020, a hearing on “The State of Judicial Independence and Due Process in U.S. Immigration Courts” took place before Chair Lofgren’s Subcommittee on Immigration and Citizenship. Our 50+ strong “Round Table of Former Immigration Judges” filed a written statement in support of Due Process and creation of an independent, Article I Court. 

You can find it on my blog “Immigrationcourtside.com,” which, of course, I highly recommend for anyone trying to understand what’s really happening in immigration these days.[8] We also joined 53 other distinguished organizations and NGOs in writing to Congress urging them to establish an independent Immigration Court.[9]

But, Article I is still a future dream. In the meantime, there is no excuse for Garland’s failure to make needed personnel, structural, and “cultural” changes at EOIR to restore due process.

Second, there must be radical structural changes so that the Immigration Courts are organized and run like a real court system, not a highly bureaucratic, headquarters bloated, enforcement agency. This means that sitting Immigration Judges, like in all other court systems, must control their dockets. 

We must end the practice of having often clueless administrators in Falls Church and political bureaucrats in Washington, D.C., none of whom are sitting judges responsible for daily court hearings, manipulate and rearrange local dockets in an attempt to achieve policy goals unrelated to fairness and due process for individuals coming before the Immigration Courts.

 

Additionally, the judicial hiring process over the past 22 years has failed to produce the necessary balance because judicial selectees from private sector backgrounds – particularly those with expertise in asylum and refugee law –have been so few and far between. Indeed, during the Obama Administration nearly 90% of the judicial appointments were from Government backgrounds.

In the Trump Administration, nearly 100% of judicial appointments by Attorney General Barr came from prosecutorial or other public sector backgrounds. A number of these conspicuously lacked expertise in immigration and human rights laws!

Garland has done better in bringing in expert practical scholars and even getting rid of a few of the most horribly unqualified judges. But, in an out-of-control system with more than 600 judges, and growing, it’s going to take more than this “nibbling around the edges” to restore due process.

 

 

Third, there must be a new administrative organization to serve the courts, much like the Administrative Office of the U.S. Courts. Currently, the unwieldy hiring process, inadequate courtroom space planning and acquisition, and unreliable, often-outdated technology are simply not up to the needs of a rapidly expanding court system. 

EOIR basically has “institutionalized worst practices.” This includes limiting legitimate continuances and placing judges under “performance plans” designed to hustle cases through the system, with insufficient quality control, while producing “assembly line injustice.”

 

 

Fourth, I would repeal all of the so-called “Ashcroft & Barr reforms” at the BIA and put the BIA back on track to being a real appellate court, as the “Appellate Division” of a new independent Immigration
Court.  A properly comprised and well-functioning Appellate Division should transparently debate and decide important, potentially controversial, issues, publishing dissenting opinions when appropriate. 

 

All Appellate Judges should be required to vote and take a public position on all important precedent decisions. The Appellate Division must also “rein in,” rather than encourage and enable, those Immigration Courts with asylum grant rates so incredibly low as to make it clear that the generous dictates of the Supreme Court in Cardoza-Fonseca[9] and the BIA itself in Mogharrabi[10] are not being followed.

 

Well over a decade has passed since Professors Andy Schoenholtz, Phil Shrag, and Jaya Ramji-Nogales published their seminal work Refugee Roulette, documenting the large disparities among Immigration Judges in asylum grant rates.[11] The BIA, the only body that can effectively establish and enforce due process within the Immigration Court system, has not adequately addressed this situation. 

 

Indeed, among the still-serving Barr appointments to the BIA are Immigration Judges who deny asylum nearly 100% of the time and are the subject of complaints from the private bar and NGOs about bias, rudeness, and other unprofessional behavior. In other words, Barr implemented  “worst practices and policies” at the BIA and in the Immigration Courts in an attempt to “snuff out” every remnant of fundamental fairness and due process for migrants. He and Sessions particularly targeted the most vulnerable asylum seekers and their families for unfair treatment.

Inexplicably, and outrageously, Garland has failed to “clean house” and bring in the necessary qualified experts to reshape the Immigration Courts in a due process image. In particular, Trump holdovers contain due to dominate the BIA and turn out lousy, anti-immigrant, anti-due process decisions, many of which are slammed by the Circuit Courts on review.

 

This is hardly “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all!” The sharp drop-off in Immigration Court asylum grant rates during the Trump Administration was impossible to justify in light of the generous standard for well-founded fear established by the Supreme Court in Cardoza-Fonseca and the BIA in Mogharrabi, the regulatory presumption of future fear arising out of past persecution that applies in many asylum cases,[14] and the simple fact that there has been no worldwide diminution in the conditions causing refugees to flee. Indeed, they have gotten worse, in many cases. 

 

The BIA’s chronic inability or unwillingness to aggressively stand up for the due process rights of asylum seekers and to enforce the fair and generous standards required by American law have robbed our Immigration Court System of credibility and public support, as well as ruined the lives of many who were denied protection that should have been granted.  We need an Appellate Division that functions like a Federal Appellate Court and whose overriding mission is to ensure that the due process vision of the Immigration Courts becomes a reality rather than a cruel, intentionally unfulfilled promise.

 

Fifth, and finally, the Immigration Courts need better public service now! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. The public receives a level of service disturbingly below that of any other major court system. 

That gives the Immigration Courts an “amateur night at the Bijou” aura totally inconsistent with the dignity of the process and the critical importance of the mission. Yet, after two decades of largely wasted effort, EOIR has failed to produce and implement a coherent, professional, user friendly court management system. 

VI. GETTING INVOLVED  

Bleak as this picture is, there is some good news. There are hundreds of dedicated and courageous lawyers out there who are former JLCs, interns, my former students, and those who have practiced before the Immigration Courts.  

    

They form the nucleus what I call the “New Due Process Army!” You can be members, and I hope you will.

 

Thanks to an innovative new online program called VIISTA Villanova, developed by my friend Professor Michele Pistone, retirees who are not lawyers can train to become accredited representatives of recognized nonprofit organizations and actually represent asylum seekers in Immigration Court. Check it out on the internet. 

VII. CONCLUSION 

In conclusion, in the process of describing my career, I have introduced you to one of America’s largest and most important, yet least understood and appreciated, court systems: The United States Immigration Court. Right now, it is, inexcusably, clearly and beyond any reasonable doubt America’s worst and most dysfunctional court system.

I have shared with you that court’s once-noble due process vision and how it has been viciously and cruelly trampled, first to advance a xenophobic, White Nationalist Qrestrictionist agenda and then because Garland has failed to do his duty. 

 

I have also shared with you my ideas for effective court reform that would restore and elevate the due process vision. 

My friends, both our Immigration Courts and our democratic republic are in a grave existential crisis. There are powerful and well-organized forces with a very dark, exclusive vision of America’s future: one that reverses generations of human progress and knowledge and actively promotes intolerance, misinformation, dehumanization, and deconstruction of our democratic institutions and fundamental human values. 

 

It’s an intentionally “whitewashed” version of American history. One that denies the ingenuity, creativity, and forced labor of generations of African Americans who literally built our country!  It disregards the courage, tenacity, skill, and strength of Asian Americans who built our Transcontinental Railroad and literally brought our nation together. And, of course, it dismisses the legions of Hispanic Americans who have been “making America great” since before “America was America,” with their culture, hard work, determination, and commitment to the “real” American dream, not the “whitewashed” version.

 

The future envisioned by these dark forces “x’es out” some of you in this room. Don’t let their darkness and willful ignorance be your future and that of generations to come. 

 

Look around you at the real history and the real America. The future is ours! Don’t let the forces of darkness and a “past that never was” deny our destiny!

 

Now is the time to take a stand for Due Process, fundamental fairness, human rights, human dignity, and human decency! Join the New Due Process Army and fight to make equal justice under law and the constitutional and human rights of everyone a reality rather than an unfulfilled promise! Due process forever!    

 

Thanks again for inviting me and for listening. 

  

(04/19/23) 

 

[1] Matter of Lennon, 15 I&N Dec. 9 (BIA 1974), rev’d Lennon v. INS, 527 F.2d 187 (2d Cir. 1975).

[2] Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).

[3] TRAC Immigration, “Representation is Key in Immigration Proceedings Involving Women with Children,” Feb. 18, 2015, available online at http://trac.syr.edu/immigration/reports/377/.

[4] “Immigration Director Calls for Overhaul of Broken System,” NBC Bay Area News, May 27, 2015, available online.

[5] Guchshenkov v. Ashcroft, 366 F.3d 554 (7th Cir. 2004) (Evans, J., concurring).
[6] Hon. Thomas G. Snow, “The gut-wrenching life of an immigration judge,” USA Today, Dec. 12, 2106, available online at http://www.usatoday.com/story/opinion/2016/12/12/immigration-judge-gut-wrenching-decisions-column/95308118/

[7] Julia Preston, “Lawyers Back Creating New Immigration Courts,” NY Times, Feb. 6, 2010.

[8] INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

[9] INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

[10] Matter of Mogharrabi, 19 I&N Dec. 4379(BIA 1987).

[11] Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295 (2007);

[12] All statistics are from the EOIR FY 2015 Statistics Yearbook, available online at https://www.justice.gov/eoir/page/file/fysb15/download,

[13] See Emory Law/SPLC Observation Study Rips Due Process Violations At Atlanta Immigration Court — Why Is The BIA “Asleep At The Switch” In Enforcing Due Process? What Happened To The EOIR’s “Due Process Vision?” in immigrationcourtside.com, available online at http://immigrationcourtside.com/2017/03/02/emory-lawsplc-observation-study-rips-due-process-violations-at-atlanta-immigration-court-why-is-the-bia-asleep-at-the-switch-in-enforcing-due-process-what-happened-to-the-eoirs-due-proces/

[14] See 8 C.F.R. § 1208.13(b)(1).

[15] See, e.g., Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) (denial of due process where IJ tried to bar the testimony of minor respondent by disqualifying him as an expert witness under the Federal Rules of Evidence). While the BIA finally stepped in with this precedent, the behavior of this Judge shows a system where some Judges have abandoned any discernable concept of “guaranteeing fairness and due process.” The BIA’s “permissive” attitude toward Judges who consistently deny nearly all asylum applications has allowed this to happen. Indeed the Washington Post recently carried a poignant story of a young immigration lawyer who was driven out of the practice by the negative attitudes and treatment by the Immigration Judges at the Atlanta Immigration Court. Harlan, Chico, “In an Immigration Court that nearly always says no, a lawyer’s spirit is broken,” Washington Post, Oct. 11, 2016, available online at https://www.washingtonpost.com/business/economy/in-an-immigration-court-that-nearly-always-says-no-a-lawyers-spirit-is-broken/2016/10/11/05f43a8e-8eee-11e6-a6a3-d50061aa9fae_story.html

How does this live up to the EOIR Vision of “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all?”   Does this represent the best that American justice has to offer?

© Paul Wickham Schmidt 2023, All Rights Reserved

****************************

We need to keep challenging this mockery of justice from all angles until the system changes! Keep raising the EOIR farce with Dems at all levels — let them know that due process at EOIR is a “front burner” issue they can’t keep sweeping under the rug!

Help groups that are assisting individuals stuck in this bureaucratically-created “Hell on Earth.” The EOIR system “feeds” on (picks on) the unrepresented, uninformed, traumatized, and desperate! Help people get effective representation, win cases, save their lives, and bring systemic attention to the gross injustices being inflicted on a daily basis by this dysfunctional system!

We can’t wait for change from above from those who are indifferent to the rule of law, human lives, and our nation’s future! NDPA members need to get on the Immigration Bench and start changing culture and outcomes at the “retail level.” See, e.g., https://immigrationcourtside.com/2023/04/15/%f0%9f%87%ba%f0%9f%87%b8%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%91%a8%f0%9f%8f%be%e2%9a%96%ef%b8%8f%f0%9f%a7%91%f0%9f%8f%bb%e2%9a%96%ef%b8%8f%f0%9f%91%a9%e2%9a%96%ef%b8%8f/

The “powers that be” at DOJ and the White House have little interest in leading and institutionalizing due process and excellence in judging at EOIR. But, neither are they positioned to prevent it from taking hold and growing on its own. That’s particularly true because Immigration Judges with practical expertise, courtroom skills, and a commitment to enforcing and vindicating individual rights ultimately “move” dockets more efficiently, motivate others to work together toward the ends of justice, and create fewer problems and embarrassments.

It’s unlikely that well-qualified, expert, due-processed-focused judges will be generating scathing public “kickbacks” from the Article IIIs. See, e.g., https://immigrationcourtside.com/2023/04/17/%f0%9f%a4%af2d-cir-savages-bias-anti-asylum-precedent-matter-of-y-i-m-27-i-n-dec-724-b-i-a-2019-phantom-discrepancies-lunch-over-lives-no-time-to-lis/

Even the BIA can’t screw up cases they don’t get! At some point, even inept and largely tone-deaf Dem politicos and their bureaucratic minions start “warming” to proven solutions rather than recreating failures and flailing away with bone-headed “deterrence” gimmicks.

The BIA might eschew precedents favorable to individuals. But, thanks to litigation against EOIR by the NY Legal Assistance Group, unpublished decisions are more widely available now on the internet. Even at the IJ level, advocacy organizations have established online networks and banks of good decisions by Immigration Judges granting relief.

These recognize and credit outstanding, exemplary, courageous judicial performance in a way that EOIR never does. Perhaps more importantly, these “unheralded victories” provide “road maps” and inspire others! Also, every concrete example of how good judging and good lawyering, on both sides, can work at EOIR serves as a condemnation and rebuke of the Administration’s lack of concern about due process, fundamental fairness, and best practices at EOIR.

While the picture is undoubtedly ugly, we must keep “painting it” — with vivid colors — until complacent folks in the power structure (particularly tone-deaf Dems) can no longer look away, cover their eyes and ears, and deny the truth about the “third world” system they are disingenuously passing off as American “justice.”

The message is straightforward: Due process, fundamental fairness, and best practices work! For everyone! It’s past time for Garland and the rest of this Administration to “get their collective heads out of the sand” and start heeding and acting decisively on that truth!

Head in the Sand
Bury your head in the sand
Sander van der Wel from Netherlands
Creative Commons Attribution-Share Alike 2.0
It’s way past time for AG Merrick Garland and Biden politicos to change this highly ineffective approach to the EOIR due process disaster!

🇺🇸 Due Process Forever!

PWS

04-19-23

⚖️ HON. “SIR JEFFREY” CHASE ON LOZADA/INEFFECTIVE ASSISTANCE OF COUNSEL— Reviving My “Rivera Dissent,” While Highlighting More Than A Decade Of EOIR/DOJ Failure To Provide Effective Guidance!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

 

https://www.jeffreyschase.com/blog/2022/10/11/amending-lozada

Amending Lozada?

October 11, 2022

In 1984, the Supreme Court in Strickland v. Washington announced the standard for determining when the Constitution’s Sixth Amendment right to counsel requires the overturning of a criminal conviction due to ineffective assistance of counsel.1 Strickland involved a death penalty case; on its winding path to the Supreme Court, a circuit court panel found in the defendant’s favor. That ruling was later overturned; the defendant was executed two months after the Supreme Court’s decision established a standard that the defendant could not satisfy.

A commentator writing years later could find no record of a malpractice claim or disciplinary complaint of any type having been filed against the attorney impugned in that case.2 The commentator cited this example in making the point that attorneys who are found to be Constitutionally deficient in criminal defense cases very rarely face disciplinary complaints.3 And the standard for establishing ineffective assistance laid out in Strickland does not require the filing of any such complaint.4

By contrast, the requirements for claiming ineffective assistance of counsel in immigration proceedings were set forth by the Board of Immigration Appeals in its 1988 decision Matter of Lozada.5 As immigration proceedings are civil in nature, the Sixth Amendment right to counsel was found not to apply; the Board determined that a right to counsel in the removal context “is grounded in the fifth amendment guarantee of due process.”6The BIA thus created its own standard in Lozada that requires (1) filing an affidavit attesting to the relevant facts; (2) informing prior counsel of the allegations, and providing any response received; and (3) if claiming “a violation of ethical or legal responsibilities” by prior counsel, indicating “whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.”7

A practice advisory of the American Immigration Council points out that requirement number three “on its face…does not require filing a bar complaint in all circumstances.”8 The AIC advisory cites circuit decisions excusing the filing of disciplinary complaints, including Fadiga v. Att’y Gen., 488 F.3d 142, 156-57 (3d Cir. 2007) (allowing no bar complaint “where counsel acknowledged the ineffectiveness and made every effort to remedy the situation”), and Correa-Rivera v. Holder, 706 F.3d 1128, 1131-32 (9th Cir. 2013) (holding that Lozada only requires an explanation of whether a bar complaint was submitted, not proof that the complaint was filed).9

Nevertheless, a 1996 BIA precedent, Matter of Rivera,10 underscores the risk of not filing a bar complaint. In that case, the requirements of Lozada were satisfied. As to the third requirement, new counsel indicated that a disciplinary complaint was not filed against prior counsel because “if any error was made in this case it was a postal error or an error of inadvertence by [former counsel].”11 Although this explanation accorded with Lozada, as it was explained both whether a bar complaint was filed and why, the Board rejected the explanation as insufficient.

The majority opinion in Rivera went on to provide a list of reasons why it considered “[t]he requirement of a bar complaint” important in ineffective assistance claims. A dissenting opinion written by then-BIA chair Paul Schmidt addressed the issue far more sensibly:

I do not need a Lozada motion or a state bar complaint to find that ineffective assistance has occurred here. The respondent’s affidavit and that of former counsel are sufficient to establish that former counsel’s duties to the respondent were not properly discharged. There is no hint of collusion between former counsel and the respondent. Under these circumstances, I see no basis for making the filing of a state bar complaint the determinative factor…12

Thus, in Rivera (and in a subsequent precedent, Matter of Assaad,13 the Board reframed the need to file a disciplinary complaint as a categorical requirement under Lozada. But in its circumstance-specific approach, Judge Schmidt’s dissent raised the question of whether this requirement is really necessary.

Nearly six years after Rivera, the answer to that question came from an unlikely source. Matter of Lozada was briefly vacated in the final days of the Bush Administration by then Attorney General Michael Mukasey.14His decision reframed ineffective assistance claims from a due process right into a discretionary agency action, and in doing so, created a new, tougher standard for establishing ineffective assistance that far fewer respondents would be able to satisfy. But interestingly, the A.G.’s decision felt the need to rethink the Board’s disciplinary complaint requirement:

By making the actual filing of a bar complaint a prerequisite for obtaining (or even seeking) relief, it appears that Lozada may inadvertently have contributed to the filing of many unfounded or even frivolous complaints. See, e.g., Comment filed by the Committee on Immigration & Nationality Law, Association of the Bar of the City of New York (Sept. 29, 2008), in response to the Proposed Rule for Professional Conduct for Practitioners—Rules and Procedures, and Representation and Appearances, 73 Fed. Reg. 44,178 (July 30, 2008) (“Under the Lozada Rule, an ineffective assistance of counsel charge is often required in order to reopen a case or reverse or remand an unfavorable decision. The practice of filing such claims is rampant, and places well-intentioned and competent attorneys at risk of discipline.”). Such unfounded complaints impose costs on well-intentioned and competent attorneys, and make it harder for State bars to identify meritorious complaints in order to impose sanctions on lawyers whose performance is truly deficient. The new approach is intended to avoid these problems by requiring only that the [noncitizen] submit to the Board a completed and signed but unfiled complaint…15

In light of these concerns, the new Compean standard still required the preparation of a disciplinary complaint against prior counsel, but (perhaps in a bizarre nod to Moses E. Herzog) added that the respondent “need not actually file the complaint with the appropriate State bar or disciplinary authorities, as Lozada had required.”16

Less than five months after its issuance, Compean was vacated by Mukasey’s successor, Attorney General Eric Holder, thus restoring the Lozada standard, along with its mandatory bar requirement.17 Holder’s decision further directed EOIR to draft proposed regulations on the topic for public comment “as soon as practicable.”18

When the agency finally published those proposed regulations more than seven years later, they retained Rivera’s mandatory complaint requirement.19 In its comments to the proposed rule, the American Immigration Lawyers Association opined that the mandatory complaint requirement should be eliminated, stating that “rather than centering on attorney discipline, the rules governing ineffective assistance of counsel should focus on assisting and protecting the noncitizen victim…” The comment continued that “EOIR already has ample existing procedures to police the immigration bar without requiring the filing of a formal complaint.”20As no final rule was ever published, we don’t know EOIR’s reaction to the comment.

Another six years later, the question first raised in the Rivera dissent, and to which a Bush Administration Attorney General and leading bar groups seem in agreement on the answer, remains unresolved.Recently, immigration law experts have revived the issue.21As those experts again point out, the purpose of reopening a proceeding in which attorney error occurred is to remedy a harm that was beyond the respondent’s ability to control. The focus on correcting the harm (as opposed to punishing the lawyer) is why in the criminal context bar complaints rarely if ever accompany ineffective assistance claims. The lack of sucha requirement allows attorneys to admit to their occasional errors without fear of retribution.

In its unique approach to the contrary, the BIA discourages attorneys from being forthcoming about their errors, and further forces counsel to turn on their own colleagues for acts that would not warrant the extreme action of a bar complaint in any other context. It seems remarkable that even an Attorney General decision issued during the Bush Administration acknowledged that most bar complaints filed pursuant to Lozada are “unfounded” and “impose costs on well-intentioned and competent attorneys,” while also hampering state bars from identifying and disciplining genuine incidents of malpractice.

According to one proponent of amending the standard, attorney Rekha Sharma Crawford, the current Lozada requirement pits members of the private bar against one another in a very destructive way, and adds unnecessary stress on the immigration removal defense counsel who are often at the forefront of these claims-many which are meaningless and done only to comply with Lozada.22

Hopefully, this will be the year that the agency finally gets around to resolving this issue by removing the mandatory complaint requirement of Lozada, and thus bringing the standard in immigration proceedings into alignment with those required in other civil and criminal courts and tribunals.

Copyright 2022 Jeffrey S. Chase.All rights reserved.

Notes:

  1. 466 U.S. 668 (1984).
  2. Joseph H. Ricks, Raising the Bar: Establishing an Effective Remedy against Ineffective Counsel, 2015 BYU L. Rev. 1115, 1120 (2016).
  3. Id.
  4. The Strickland standard requires a finding that (1) counsel’s performance fell below an objective standard of reasonableness; and (2) there was a reasonable probability that the result would have been different if not for counsel’s inadequate performance.
  5. 19 I&N Dec. 637 (BIA 1988).
  6. Id. at 638.
  7. Id. at 639.
  8. American Immigration Council, Practice Advisory, “Seeking Remedies For Ineffective Assistance of Counsel in Immigration Cases,” (Jan. 2016), https://www.americanimmigrationcouncil.org/sites/default/files/research/seeking_remedies_for_ineffective_assistance_of_counsel_in_immigration_cases_practice_advisory.pdf, at 11.
  9. Id.
  10. 10.21 I&N Dec. 599 (BIA 1996) (en banc).
  11. 11.Id. at 606.
  12. 12.Id. at 608. It bears noting that Judge Schmidt, and two of the three Board Members who joined in his dissent (Lory Rosenberg and Gustavo Villageliu) are presently members of the Round Table of Former Immigration Judges.
  13. 13.23 I&N Dec. 553 (BIA 2003).
  14. 14.Matter of Compean, Bangaly, & J-E-C-, 24 I&N Dec. 710 (A.G. Jan. 7, 2009).
  15. 15.Id. at 737-38.
  16. 16.Id. at 737. Moses E. Herzog, the fictional protagonist of Saul Bellow’s novel Herzog, authored numerous strongly-worded letters that he never sent.
  17. 17.Matter of Compean, Bangaly, & J-E-C-, 25 I&N Dec. 1 (A.G. June 3, 2009).
  18. 18.Id. at 2.
  19. 19.81 Fed. Reg. 49556, 49565 (July 28, 2016), https://www.federalregister.gov/documents/2016/07/28/2016-17540/motions-to-reopen-removal-deportation-or-exclusion-proceedings-based-upon-a-claim-of-ineffective.
  20. 20.Comment filed by the American Immigration Lawyers Association (Sept. 26, 2016), in response to the Proposed Rule for Motions Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel, 81 Fed. Reg. 145 (July 28, 2016).
  21. 21.See, e.g., an October 3 AILA Roundtable, “Changing the Bench: A New Narrative on Lozada and Bar Complaints.”
  22. 22.Private email to the author.

*****************************

Republished by permission.

As “Sir Jeffrey points out,” in Matter of Compean, Bangaly, & J-E-C-, 25 I&N Dec. 1 (A.G. June 3, 2009), AG Eric Holder directed EOIR to promulgate new regulations providing guidance on ineffective assistance of counsel. More than seven years later, in 2016 — essentially the entire Obama Administration — DOJ/EOIR issued flawed “proposed” regulations. Not surprisingly, no final regulations were ever issued. A dozen yers after the AG directed EOIR to take action — a big “nothingburger.”

This by no means is the only example of EOIR/DOJ’s unsuitability to the task facing it. It’s reminiscent of the tortured history of the “gender based asylum” regulations ordered by former AG, the late Janet Reno, but issued only as a badly flawed proposal and never finalized.

Additionally, incoming President Joe Biden made issuing “gender based regulations” one of his Administration’s highest priorities, ordering action by October 2021. A year later — nothing! 

Meanwhile, EOIR Judges’ applications and interpretations of the governing precedent on gender-based asylum — Matter of A-R-G-G- — are wildly inconsistent. Beyond that, the 5th Circuit has taken the right-wing misogynistic “liberty” of simply ignoring the law on gender-based asylum. 

“Lozada reform” is long overdue. But, so is meaningful EOIR reform! 

Ultimately, America needs and deserves an independent U.S. Immigration Court with exceptionally well-qualified judges, at all levels, who are recognized experts in asylum law and unswervingly committed to due process and best judicial practices.

Until then, those appearing in Immigration Court — disproportionately individuals of color and women — and their hard-working attorneys — will continue to receive grossly substandard “justice” from “Justice!”

🇺🇸 Due Process Forever!

PWS

10-12-22

☠️NEW KIND REPORT SHOWS CRISIS OF PERSECUTION OF WOMEN & CHILDREN IN NORTHERN TRIANGLE EXACERBATED BY PANDEMIC — More Evidence Of Legal, Factual, & Moral Bankruptcy Of Administration’s Bogus “Deterrence Policies” As Well As Grotesque Failure Of U.S. Courts At All Levels To Uniformly Require Granting Of Asylum To Qualified Refugee Women & Children!

 

pastedGraphic.png

*Cover photo by photojournalist Guillermo Martinez shows a boy in El Salvador wearing a protective mask from his home during a COVID-19 lockdown. Photo credit: Guillermo Martinez/APHOTOGRAFIA/ Getty Images

 

New Report: Dual Crises

 

 

 

Gender-Based Violence and Inequality Facing Children and Women During the COVID-19 Pandemic in El Salvador, Guatemala, and Honduras

 

 

 

Gender-based violence has long been one of the main drivers of migration from Central America to the United States. Widespread violence, including sexual abuse, human trafficking, and violence in the home and family, combined with a lack of access to protection and justice forces children and women to flee in search of safety. Drawing on existing research and interviews with children’s and women’s rights experts, this report lays out how the COVID-19 pandemic has exacerbated already pervasive forms of violence against children and women in Central America, as well as the deeply entrenched gender inequality that leaves children and women even more vulnerable to violence.

Here’s a link to the full report: http://us.engagingnetworks.app/page/email/click/10097/1093096?email=C9P0Zhj6QQc0L7Si0LDouAN%2BRR2ul1GhmZAK81VjEpg=&campid=z6owwwxd2r6ZkArzVWMSmA==

 

 

 

****************

Successful implementation of the U.S. Strategy for Addressing the Root Causes of Migration in Central America must start by acknowledging that gender-based violence is a primary driver of migration and includes most violence against children.

Obviously, mindless, failed enforcement and deterrence-only policies that tell women and children to “suffer and die in place” rather than flee and seek asylum are absurdly out of touch with the realities of both human migration and the real situation in the Northern Triangle. This report shows that increased flight from the Northern Triangle probably has more to do with the aggravating effects of the pandemic on the already untenable situation of many women and children in the Northern Triangle than it does on any policy pronouncements, real or imagined, on the part of the Biden Administration.

An honest policy that recognizes the reality that gender-based persecution is a major driver of forced migration in the Northern Triangle would go a long way toward addressing the largely self-created situation at our Southern Border.

As many of us keep saying, to no visible avail, asylum isn’t a “policy option” for politicos and wonks to “discuss and debate.” It’s a legal and moral requirement, domestically and internationally, that we are currently defaulting upon!

Wonder why “democracy is on the ropes” throughout the world right now? Perhaps, we need look no further than our own horrible example!

A robust overseas refugee program in the region and a uniform, consistent, timely policy of granting asylum to qualified applicants applying at ports of entry at our borders would be a vast improvement. 

Sure, it would undoubtedly result in the legal immigration of more refugees and asylum seekers. That’s actually what refugee and asylum laws are all about — an important and robust component of our legal immigration system. 

Although our needs are not actually part of the “legal test for asylum,” the fact is, we need more legal immigrants of all types in America right now.

It should be a win-win for the refugees and for America. So why not make it happen, rather than continuing failed policy approaches that serve nobody’s interest except nativist zealots trying to inflame xenophobia for political gain?

An additional point: On February 2, 2021, to great ballyhoo, President Biden issued Executive Order 14010. A key provision of that order required that:

(ii) within 270 days of the date of this order, promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a “particular social group,” as that term is used in 8 U.S.C. 1101(a)(42)(A), as derived from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

270 days have long passed. In fact, its been more than 300 days since that order. Yet, these regulations are nowhere in sight. Perhaps, that’s a good thing.

This doesn’t come as much of a surprise to “us old timers” who have “hands on” experience with the unsuitability of the DOJ regulation drafting process for this assignment. Indeed, this assignment is actually several decades “overdue,” having originally been handed out by the late former Attorney General Janet Reno prior to her departure from office in January 2020!

The problem remains lack of expertise. With the possible exception of Lucas Guttentag, I know of nobody at today’s DOJ who actually has the necessary experience, expertise, perspective, and historical knowledge to draft a proper regulation on the topic. Past drafts and proposals have been disastrous, actually seeking to diminish, rather than increase and regularize, protections for vulnerable women and others facing persecution on account of gender-based particular social groups.

Indeed, one proposal was even used by OIL as an avenue in attempting to “water down” the all-important, life saving “regulatory presumption of future persecution arising out of past persecution!” Talk about perversions of justice at Justice! Why? Because OIL had suffered a series of embarrassing, ego-deflating setbacks from Article III Courts calling out the frequent failure of the BIA and IJs to properly apply the basics of the presumption. Sound familiar?

At DOJ, the “normal solution to lack of expertise and competence” is to simply eliminate expertise and competence as requirements! In many ways, “good enough for government work” has replaced “who prosecutes on behalf of  Lady Justice” as the DOJ’s motto!

It’s also yet another reason why the DOJ is a horribly inappropriate “home” for the U.S. Immigration Courts!


😎Due Process Forever! 

PWS

12-16-21

‘SIR JEFFREY” CHASE: Garland’s “First Steps” To Eradicate Misogyny & Anti-Asylum Bias @ EOIR Are Totally Insufficient Without Progressive Personnel Changes — Regulations Will Only Be Effective If Drafted By Progressive Human Rights Experts Of Which There Currently Are NONE @ DOJ Save For Some Immigration Judges In The Field Whose Expertise, Intellectual Integrity, & Moral Courage Has Been Ignored By Team Garland! — There Will Be No Gender, Racial, Or Immigrant Justice @ Justice As Long As Garland Mindlessly Lets “Miller’s Club Denial” Operate @ BIA! — Progressives Must Turn Up The Heat On Garland To Reform & Remake EOIR With Qualified Expert Judges & Dynamic, Independent, Progressive Leaders!

https://www.jeffreyschase.com/blog/2021/6/21/first-steps

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

The latest from the Hon. “Sir Jeffrey:”

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

First Steps

On June 16, Attorney General Merrick Garland finally, mercifully vacated three decisions that formed a key part of the Trump administration’s unrelenting attack on the law of asylum.1  Matter of A-B-,  issued by Jeff Sessions in June 2018, took aim in particular at victims of domestic violence.2  Matter of L-E-A-, issued the following year by William Barr, sought to undermine protection for those targeted by gangs due to their familial ties.3  And on January 14, 2021, six days from the end of the Trump Administration, acting A.G. Jeffrey Rosen issued a second decision in A-B-, gratuitously criticizing the method for determining nexus in asylum claims employed by the U.S. Court of Appeals for the Fourth Circuit, while conveniently evading that court’s review of the original decision in the case through remand.4

Garland’s action restores the law to where it stood prior to June 11, 2018, but only for the time being.  Proposed rules on the subject (which Garland referenced) are due by October 30, when they will first be subjected to a period of public comment.  If final rules are eventually published, it will occur well into next year.

As we sigh in collective relief and celebrate the first steps towards correcting our asylum laws, let’s also take note of the imperfect place in which the case law stands at present.

As to domestic violence claims, the BIA’s 2014 decision in Matter of A-R-C-G- (which Matter of A-B- had vacated) has been restored as binding precedent.5  That decision was issued at a time when (as now) regulations addressing particular social groups were being contemplated by DHS and EOIR.6  While A-R-C-G- was an extremely welcome development, the Board used it to recognize a rather narrowly-defined group: “married women in Guatemala who are unable to leave their relationship.”  In a footnote to the decision, the Board declined to address the argument of several amici (including UNHCR) that a particular social group may be defined by gender alone.  Although A-R-C-G- led to many grants of asylum, some immigration judges relied on the limited scope of the group’s definition to deny claims involving slightly broader variations, in particular, where the victim was not legally married, but nevertheless in a domestic relationship that she was unable to leave.  While the BIA reversed some of those denials in unpublished decisions, it declined to speak to the issue through binding precedent.

As to Matter of L-E-A-, Garland’s recent action returns us to the BIA’s original opinion in that case.7  While the decision acknowledged that families constitute particular social groups (a point that was not in dispute, having been universally recognized for some 35 years and stipulated to by DHS), the BIA still denied asylum by invoking a legally incorrect standard for establishing nexus that it has continued to apply in all family-based asylum claims.

For these reasons, the content of the forthcoming regulations will be extremely important in determining the future of asylum in this country.  While a return to the test for social group cognizability expressed in the BIA’s 1985 precedent in Matter of Acosta tops most regulation wish lists, I will focus the discussion here on a couple of more specific items necessary to correct the shortcomings of Matter of A-R-C-G- and Matter of L-E-A-.

First, the regulations need to explicitly recognize that a particular social group may be defined by gender alone.  In its 2002 Gender Guidelines, UNHCR identified women “as a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently than men,” and whose “characteristics also identify them as a group in society, subjecting them to different treatment and standards in some countries.”8  However, over the nineteen years since those guidelines were issued, the BIA has consistently avoided considering the issue.

The peril of defining gender-based groups in the more narrow manner employed by the BIA has been addressed by two distinguished commentators, who explain that such practice results in “constant re-litigating of such claims,” sometimes creating “an obstacle course in which the postulated group undergoes constant redefinition.”9  And of course, that is exactly what has happened here, as A-R-C-G- gave way to A-B-, which led to differing interpretations among different courts until Garland’s recent reset.  The above-mentioned commentators further decried the “nitpicking around the margins of the definition” resulting from the narrow approach when the true reason for the risk of persecution to the applicant “is simply her membership in the social group of ‘women.’”10  Regulations recognizing gender alone as a particular social group would thus provide clarity to judges and asylum officers, eliminate the wastefulness of drawn out litigation involving “nitpicking around the margins,” and bring our laws into line with international standards.

But as L-E-A- demonstrates, recognition of a group alone does not guarantee asylum protection.  In order for a group’s recognition to be meaningful, the regs must also address an ongoing problem with the BIA’s method for determining nexus, or whether persecution is “on account of” the group membership.

The BIA is accorded deference by Article III courts when it reasonably interprets immigration laws, provided that the meaning of the language in question is ambiguous.  However, the “on account of” standard included by Congress in defining the term “refugee” is quite clear; its meaning is long established, and in fact, is not particular to immigration law.

The Supreme Court referenced this standard last year in a non-immigration case, Bostock v. Clayton County.  The Court explained that the test

incorporates the “‘simple’” and “traditional” standard of but-for causation…. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause….In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.11

In a 2015 decision, the U.S. Court of Appeals for the Fourth Circuit applied this exact test in the asylum context to conclude that persecution was on account of family, determining that the petitioner’s “relationship to her son is why she, and not another person, was threatened with death if she did not allow him to join Mara 18.”12  But for some reason, the BIA has felt entitled to reject this established standard outside of the Fourth Circuit in favor of its own excessively restrictive one.

Had the proper test for nexus been employed in L-E-A-, asylum would have been granted.  Under the facts of that case, once the familial relationship is removed from the equation, the asylum-seeker’s risk ceases to exist.  However, the BIA instead imposed an incorrect test for nexus requiring evidence of an “animus against the family or the respondent based on their biological ties, historical status, or other features unique to that family unit.”13

As a former circuit court judge, Garland is particularly qualified to recognize the error in the Board’s approach, as well as the need to correct its course.  The problem is compounded by the particular composition of the BIA at present.  For example, of the ten immigration judges who were promoted to the BIA during the Trump administration, nine denied asylum more than 90 percent of the time (with the tenth denying 85 percent of such claims).  Three had an asylum denial rate in excess of 98 percent.14

This matters, as those high denial rates were achieved in part by using faulty nexus determinations to deny asylum in domestic violence claims, even before the issuance of Matter of A-B-.  This was often accomplished by mischaracterizing the abuse as merely personal in nature, referencing only the persecutor’s generally violent nature or inebriated state.  The analysis in those decisions did not further examine whether gender might also have been one central reason that the asylum seeker, and not someone else, was targeted.

One BIA Member appointed under Trump recently found no nexus in a domestic violence claim by concluding that the persecutor had not targeted the asylum seeker because of her membership in the group consisting of “women,” but rather because she was his woman. There is no indication in the decision that the Board Member considered why the persecutor might view another human being as belonging to him and lacking the same rights he seems to enjoy.  Might it have been because of her gender?

Without a correction through published regulations, there is little reason to expect different treatment of these claims moving forward.  Let’s hope that the Attorney General views his recent action as only the first steps on a longer path to a correct application of the law.

Copyright 2021, Jeffrey S. Chase.  All rights reserved.

Notes:

  1. Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (“A-B- III”); Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021) (“L-E-A- III”).
  2. 27 I&N Dec. 316 (A.G. 2018) (“A-B- I”).
  3. 27 I&N Dec. 581 (A.G. 2019) (“L-E-A- II”).
  4. 28 I&N Dec. 199 (A.G. 2021) (“A-B- II”).
  5. 26 I&N Dec. 388 (BIA 2014).
  6. The regulations under consideration at that time were never issued.
  7. 27 I&N Dec. 40 (BIA 2017) (“L-E-A- I”).
  8. UNHCR, Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (May 2002) at para. 30.
  9. James C. Hathaway and Michelle Foster, The Law of Refugee Status, Second Edition (Cambridge University Press, 2014) at 442.
  10. Hathaway and Foster, supra.
  11. Bostock v. Clayton County, 140 S.Ct. 1731, 1739 (2020).
  12. Hernandez-Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015).
  13.  L-E-A- I, supra at 47.
  14. See TRAC (Transactional Records Access Clearinghouse) Immigration Judge Reports https://trac.syr.edu/immigration/reports/judgereports/.Republished with permission.

 

*************************

Without progressive intervention, this is still headed for failure @ EOIR! A few things to keep in mind.

    • Former Attorney General, the late Janet Reno, ordered the same regulations on gender-based asylum to be promulgated more than two decades ago — never happened!
    • The proposed regulations that did finally emerge along the way (long after Reno’s departure) were horrible — basically an ignorant mishmash of various OIL litigation positions that would have actually made it easier for IJs to arbitrarily deny asylum (as if they needed any invitation) and easier for OIL to defend such bogus denials.
    • There is nobody currently at “Main Justice” or EOIR HQ qualified to draft these regulations! Without long overdue progressive personnel changes the project is almost “guaranteed to fail” – again!
    • Any regulations entrusted to the current “Miller Lite Denial Club” @ the BIA ☠️ will almost certainly be twisted out of proportion to deny asylum and punish women refugees, as well as deny due process and mock fundamental fairness. It’s going to take more than regulations to change the “culture of denial” and the “institutionalized anti-due-process corner cutting” @ the BIA and in many Immigration Courts.
    • Garland currently is mindlessly operating the “worst of all courts” — a so-called “specialized (not) court” where the expertise, independence, and decisional courage is almost all “on the outside” and sum total of the subject matter expertise and relevant experience of those advocating before his bogus “courts” far exceeds that of the “courts” themselves and of Garland’s own senior team! That’s why the deadly, embarrassing, sophomoric mistakes keep flowing into the Courts of Appeals on a regular basis. 
    • No regulation can bring decisional integrity and expertise to a body that lacks both! 
    • Any progressive who thinks Garland is going to solve the problem @ EOIR without “outside intervention” should keep this nifty “five month snapshot of EOIR under Biden” in mind:
      • Progressive judges appointed to BIA: 0
      • Progressive judges appointed to Immigration Court: 0
      • Progressives installed in leadership positions @ EOIR permanently or temporarily: 0
      • Billy Barr Selected Immigration Judges Appointed: 17
      • “Miller Lite” holdover individuals still holding key positions @ EOIR: many (only two removed to date)
      • Number of BIA precedents decided in favor of respondent: 2
      • Number of BIA precedents decided in favor of DHS: 9

That’s right, folks: Billy Barr and Stephen Miller have had more influence and gotten more deference from Garland at EOIR than have the progressive experts and advocates who fought tirelessly to preserve due process and to get the Biden Administration into office. How does that a make sense? 

Miller Lite
“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color — Finally vacating two grotesquely wrong anti-female, anti-asylum precedents hasn’t ended the “Miller Lite Unhappy Hour” for migrants and their advocates at Garland’s foundering DOJ!

Progressives, advocates, and NGOs must keep raising hell until we finally get the “no-brainer,” long overdue, obvious, personnel, legal, structural, institutional, and cultural changes at EOIR that America needs! Waiting for Judge Garland to get around to it is like “Waiting for Godot!” Perhaps worse — I don’t recollect that anyone died waiting for Godot!

🇺🇸Due Process Forever! The BIA Denial Club, Never!🏴‍☠️

PWS

06-22-21

⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Dan Kowalski reports from LexisNexis Immigration Community:

9th Thwarts Anti-Asylum Misogyny For Gang-Rape Victim:

Woman Tortured
“She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-asylum-india-persecution-kaur-v-wilkinson

CA9 on Asylum, India, Persecution: Kaur v. Wilkinson

Kaur v. Wilkinson

“The BIA erred in imposing evidentiary requirements of ongoing injury or treatment beyond the sexual assault itself in order to show persecution. Kaur’s credible testimony about the attempted gang rape is sufficient to show persecution. Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim. We grant Kaur’s petition for review and remand for further proceedings consistent with this opinion.”

[Hats off to Douglas Jalaie!]

1st Calls Out Violation Of Regs, Incredibly Stupid Denial Of Reopening For Approved U Visa Petition Beneficiary Waiting For “Number:”

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca1-on-u-visa-waitlist-granados-benitez-v-wilkinson

CA1 on U Visa Waitlist: Granados Benitez v. Wilkinson

Granados Benitez v. Wilkinson

“Petitioner Carlos Antonio Granados Benitez seeks review of the Board of Immigration Appeals’ (“BIA” or “Board”) denial of his motion to reopen his removal proceedings and to remand to the immigration judge (“IJ”) for further consideration in light of the fact that he had been placed on a waiting list by United States Citizenship and Immigration Services (“USCIS”) for a U-1 nonimmigrant visa (“U visa”) pursuant to the Victims of Trafficking and Violence Protection Act (“VTVPA”), Pub. L. No. 106-386, § 1513(a)(2)(A), (b), 114 Stat. 1464 (2000) (codified as amended at 8 U.S.C. § 1101(a)(15)(U)). Because we find that the BIA abused its discretion, in that it failed to render a reasoned decision that accords with its own precedent and policies, and it further failed to consider the position of its sister agency Immigration and Customs Enforcement (“ICE”), we grant the petition. In so holding we join the views of the Seventh Circuit in Guerra Rocha v. Barr, 951 F.3d 848, 852- 54 (7th Cir. 2020).”

[Hats off to Paige Austin, with whom Philip L. Torrey, Make the Road New York, and the Harvard Law School Crimmigration Clinic were on brief, for petitioner, and Brian D. Straw, Gregory E. Ostfeld, and Greenberg Traurig, LLP on brief for ASISTA Immigration Assistance, Asian Pacific Institute on Gender-Based Violence, National Coalition Against Domestic Violence, National Network to End Domestic Violence, Safe Horizon, and Tahirih Justice Center, amici curiae!]

3rd “Perplexed” By BIA’s Ignorance Of “Equitable Tolling,” Own Authority:

Kangaroos
“Hey, guys, ever hear of something called “equitable tolling?”  “Nah, is it spelled D-E-N-I-E-D?” “Equitable TROLLING,” I’ve heard of that?”https://www.flickr.com/photos/rasputin243/
Creative Commons License

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-on-equitable-tolling-nkomo-v-atty-gen

CA3 on Equitable Tolling: Nkomo v. Atty. Gen.

Nkomo v. Atty. Gen.

“Because Nkomo properly raised equitable tolling before the BIA, the BIA erred in failing to consider her request for equitable tolling on the merits. We remand for the Board to do so in the first instance.”

“The BIA’s suggestion that it does not have the authority to make decisions on equitable grounds is perplexing. The BIA has authority to equitably toll the deadline for motions to reopen the precise relief Nkomo sought.”

[Hats off to Jerard A. Gonzalez!]

***************

Demeaning rape victims! ☠️🤮👎🏻 So, what else is new @ EOIR? “Gonzo” Sessions 🦹🏿‍♂️ set the tone for anti-asylum, racially motivated misogyny in Matter of A-B- and “his judges” have taken it from there! (I repeat my oft-made observation: What kind of “due process” system lets a characters like Sessions, Whitaker, and Barr “own” judges?  How would you like to be a woman on trial for her life before a “judge” selected, directed, and “owned” by the likes of  these men with clear records of “applied contempt” for equal justice? Sessions, Whitaker, Barr, & Jeffrey Rosen are gone — but their legacy of bias and injustice lives on @ EOIR!)

One of my esteemed Round Table 🛡⚔️ colleagues summed up the latest set of outrageous miscarriages of justice from Falls Church:

All of these decisions demonstrate the degree of careful and detailed analysis that these cases require.And yet the BIA couldn’t keep staff attorneys after McHenry capped them at GS-13 (entry level), and keeps increasing the monthly quotas for BIA staff attorneys.Plus of course the Board Members themselves are now all these types who only review the decisions to make sure they end in the word “dismissed.”

If you were trying to create a recipe for disaster, you couldn’t have planned it better.

I heard the latter comment twice yesterday from immigration/human rights/due process experts on opposite sides of our country who observe and participate in the system at various levels.

To quote Justice Sotomayor’s recent dissent: “This is not justice.”

Historical Footnote:  One of my first actions as BIA Chair in 1995 was to establish a “GS-15 Career Ladder” for all Attorney Advisors at the BIA. This made the BIA competitive with the rest of the DOJ. 

It allowed us to attract and retain not only “top talent” coming from the “DOJ Honors Program” (how I got my first job at the BIA in 1973), but also outstanding career attorneys who wanted an opportunity to do research, writing, and “applied scholarship” that made a difference in individuals’ lives. Indeed, at various times the BIA has had on its staff former Senior Executives seeking a “change of  focus” to a career that allowed them to do the things they liked best about the law.

One of them was a former SES colleague at the “Legacy INS” who found in transferring to a GS-15 BIA Attorney Advisor position a career satisfaction, fulfillment, and sense of meaningful contribution that person had been missing in INS management at that time.

Reducing the top grade for Attorney Advisors is not only professionally and personally demeaning, it also marks the entire organization as “second class” and shows just how stupid and incompetent (and, in recent history, overpaid) EOIR “management” has become! And, as pointed out in my colleague’s comments above, it has not only adversely affected careers but the human lives in the balance on the BIA’s docket.

As I understood my “mission” from then Attorney General Janet Reno in 1995, the BIA was supposed to be about “attracting the best and the brightest judges and supporting them with the best and brightest staff.” Essentially getting it to function like the “12th Circuit” was a description mentioned during my interview process for the Chair job. 

Sadly, now, it has become an assembly line of expediency, injustice, shoddy legal work, mindless “corner cutting,” unprofessional behavior, and human misery.

To repeat my colleague’s comment: “If you were trying to create a recipe for disaster, you couldn’t have planned it better.”

All of these cases should have been resolved in the foreign national’s favor without ever getting to the Courts of Appeals! Bad judging, grossly incompetent administration, and lack of qualified, dynamic, judicial leadership from respected “practical scholars” costs lives, produces unacceptable and unfair inconsistencies, and clogs the Article III Courts with unnecessary litigation.

Indeed, the First Circuit’s decision in Granados basically reveals OIL’s “smorgasbord” of bogus arguments to uphold the BIA’s incorrect decision as “without merit” — actually frivolous! There are deep problems @ DOJ resulting from the ongoing corruption and disregard for ethics and professional leadership from the now-departed kakistocracy! They go far beyond the mess at EOIR!

Sure hope that Judge Garland, Vanita Gupta, and their incoming team @ DOJ have a comprehensive plan for replacing the BIA and reforming EOIR! The human beings suffering in this disgracefully inept and abusive “court system” and their courageous, long suffering attorneys are counting on you! Think of it this way: What if YOUR daughter were the rape victim demeaned, dehumanized, and denied justice by EOIR?

🇺🇸⚖️🗽👍🏼👨🏻‍⚖️🧑🏽‍⚖️Due Process Forever!

PWS

01-30-21

IT’S HERE! — IMMIGRATION HISTORY AT ITS BEST! — Months In The Making, The “Schmidtcast,” A 7-Part Series Featuring Podcaster Marica Sharashenidze Interviewing Me About My Legal Career “American Immigration From Mariel to Miller” — Tune In Now!

Marica Sharashenidze
Marica Sharashenidze
Podcaster Extraordinaire

Marica Sharashenidze

Born in 1993, Marica was raised in Maryland and earned a B.A. in Sociology from Rice University. Marica worked in the past as a paralegal at Hudson Legal in Ann Arbor and most recently explored eGovernance based infrastructure projects on the Dorot Fellowship. In the past, she received the Wagoner Fellowship, from the Higher School of Economics in Saint Petersburg, Russia, where she completed a year long ethnographic research project. She is fluent in Russian and proficient in Spanish and Hebrew.

Hon. Paul Wickham Schmidt
Hon. Paul Wickham Schmidt
U.S. Immigraton Judge (Ret.)
Adjunct Professor, Georgetown Law
Blogger, immigrationcourtside.com

Judge (Retired) Paul Wickham Schmidt 

Judge Schmidt was appointed as an Immigration Judge at the U.S. Immigration Court in Arlington, Virginia, in May 2003 and retired from the bench on June 30, 2016. Prior to his appointment as an Immigration Judge, he served as a Board Member for the Board of Immigration Appeals, Executive Office for Immigration Review, in Falls Church, VA, since February 12, 1995. Judge Schmidt served as Board Chairman from February 12, 1995, until April 9, 2001, when he chose to step down as Chairman to adjudicate cases full-time. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), extending asylum protection to victims of female genital mutilation.  He received a Bachelor of Arts degree from Lawrence University in 1970 (cum laude), and a Juris Doctorate from the University of Wisconsin School of Law in 1973 (cum laude; Order of the Coif). While at the University of Wisconsin, he served as an editor of the Wisconsin Law Review. Judge Schmidt served as acting General Counsel of the former Immigration and Naturalization Service (INS) (1986-1987; 1979-1981), where he was instrumental in developing the rules and procedures to implement the Immigration Reform and Control Act of 1986. He also served as the Deputy General Counsel of INS for 10 years (1978-1987). He was the managing partner of the Washington, DC, office of Fragomen, Del Rey & Bernsen (1993-95), and also practiced business immigration law with the Washington, DC, office of Jones, Day, Reavis and Pogue from 1987-92 (partner, 1990-92). Judge Schmidt also served as an adjunct professor of law at George Mason University School of Law in 1989 and at Georgetown University Law Center (2012-14; 2017–). He has authored numerous articles on immigration law, and has written extensively for the American Immigration Lawyers Association. Judge Schmidt is a member of the American Bar Association, the Federal Bar Association, and the Wisconsin and District of Columbia Bars. Judge Schmidt was one of the founding members of the International Association of Refugee Law Judges (“IARLJ”).  In June 2010, Judge Schmidt received the Lucia R. Briggs Distinguished Achievement Award from the Lawrence University Alumni Association in recognition of his notable career achievements in the field of immigration law. Since retiring, in addition to resuming his Adjunct Professor position at Georgetown Law, Judge Schmidt has established the blog immigrationcourtside.com, is an Americas Vice President of the IARLJ, serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects, as well as speaking, lecturing, and writing in forums throughout the country on contemporary immigration issues, due process, and U.S. Immigration Court reform.

Here are links:

https://pws.transistor.fm/

https://feeds.transistor.fm/the-life-and-times-of-the-honorable-paul-wickham-schmidt

And here are some “Previews with links to each episode:”

 

Concluding Remarks

So, what now? Will the intentional cruelty, “Dred Scottification,” false narratives, and demonization of “the other,” particularly women, children, and people of color, by presidential advisor Stephen Miller and his White Nationalists become the “future face” of America? Or, will “Our Better Angels” help us reclaim the vision of America as the “Shining City on the Hill,” welcoming immigrants and protecting refugees, in good times and bad, while “leading by example” toward a more just and equal world?

The Mariel Boatlift Crisis

The Refugee Act of 1980 feels like a huge success…for a short amount of time. The first test of the act comes when Fidel Castro opens Cuba’s borders (and Cuba’s prisons) and hundreds of refugees arrive on Florida shores. The Mariel Boatlift Crisis forced the U.S. government to realize that not all asylum processing can happen abroad. Unfortunately, it also left the public with the impression that “Open arms and open hearts” leads only to crisis.

The Refugee Act of 1980

The year is 1980 and the war in Vietnam has displaced hundreds and thousands of people. The system of presidential parole doesn’t seem like it can handle the growing global refugee crisis. What is the answer to this ballooning need? Process most refugees abroad to streamline their entrance to the U.S. Codify asylum in the U.S. in legislation that puts human rights first. Increase prestige, improve overall government coordination, provide a permanent source of funding, and institutionalize refugee resettlement programs and assimilation. Have Ted Kennedy be the face of the effort. For once, things are actually working out for humanity.

The 1990s BIA

In the 1990s, Judge Schmidt was BIA Chairman Schmidt. With the support of then Attorney General Janel Reno, he aspired to “open up” appellate judgeships to all immigration experts, and to lead the BIA to much-needed progressive steps towards humane asylum law, better scholarship, improved public service, transparency, and streamlined efficiency to reduce the backlog. However, progress seemed to stall at several points and certain types of behavior tended to be rewarded. The Board sits at the intersection between a court and an agency within the administration, which means its hurdles come both from structural issues with the U.S. Justice System and with entrenched government bureaucracy.

Creating EOIR

In the 1980s, critics claimed that the federal agency in charge of immigration enforcement, the “Legacy” Immigration and Naturalization Service (“INS”), could not process quasi-judicial cases in a fair and just manner due to limited autonomy, non-existent technology, insufficient resources, haphazard management, poor judicial selection processes, and backlogs. The solution? Create a sub-agency of the Department of Justice (“DOJ”) just for the immigration courts, focused on “due process with efficiency” and organizationally separate from the agency charged with immigration enforcement. The Executive Office of Immigration Review (“EOIR”) was an ambitious and noble endeavor, meant to be an independent court system operating inside of a Federal Cabinet agency. Spoiler: despite significant initial progress it did not work out that way in the long run.

The Immigration Reform and Control Act

In 1986, the United States was facing an immigration crisis with an overwhelmed INS and a record number of undocumented folks in the country. IRCA, a bipartisan bill, was created to solve the immigration crisis through a three-pronged approach: legalization, enforcement and employer accountability. However, it soon became apparent that some parts of IRCA were more successful than others. IRCA taught us relevant lessons for going forward. Because while pathways to citizenship are self-sustaining, enforcing borders is not.

The Ashcroft Purge

Judges are meant to be impartial; but, U.S. Immigration Judges have political bosses who are willing and able to fire them while making little secret of their pro-enforcement, anti-immigrant political agenda. What are the public consequences of an Immigration Court with limited autonomy from the Executive Branch? We begin the podcast at one of the “turning points,” when Attorney General John Ashcroft fired almost all the most “liberal” Board Members of the BIA, all of whom were appointed during the Clinton Administration. What followed created havoc among the U.S. Courts of Appeals who review BIA decisions. The situation has continually deteriorated into the “worst ever,” with “rock bottom” morale, overwhelming backlogs, fading decisional quality, and the “weaponized”Immigration Courts now tasked with carrying out the Trump Administration’s extreme enforcement policies.

 

You should also be able to search for the podcast on iTunes, Stitcher or Spotify just by searching “American Immigration From Mariel to Miller”.

************************

Many, many thanks to Marica for persuading me to do this project and for doing all the “hard stuff.” I just “rambled on” — her questions and expert editing provided the context and “framework.”  And, of course, Marica provided all the equipment (the day her brother “borrowed” her batteries) and the accompanying audio clips and written introductions. 

Also, many thanks to my wife Cathy for the many hours that she and “Luna the Dog” (a huge “Marica fan”) spent trying not to listen to us working in the dining room, while adding many helpful suggestions to me, starting with “you sound too rehearsed” and “lose the ‘uhs’ and ‘you knows.’” She even put up with me playing some of the “original takes” while we were “on the road” to Wisconsin or Maine.

Happy listening!

Due Process Forever!

PWS😎

05-19-20

IN MEMORIAM: JUSTICE JOHN PAUL STEVENS (1920-2019), AMERICAN HERO WHO LEAVES A LEGACY OF KINDNESS & COMMON SENSE — Authored One Of The Greatest Supreme Court Decisions, INS v. Cardoza-Fonseca!

https://www.law.com/nationallawjournal/2019/07/16/justice-john-paul-stevens-who-left-us-a-better-nation-dies-at-99/

Justice John Paul Stevens
Justice John Paul Stevens
1920-2019
Author of INS v. Cardoza-Fonseca
Marcia Coyle
Marcia Coyle
Supreme Court Reporter
National Law Journal

Marcia Coyle writes in the National Law Journal:

Justice John Paul Stevens, whose decisions during almost 35 years on the U.S. Supreme Court triggered a revolution in criminal sentencing and curbed government overreach in the war on terror, died on Tuesday evening at Holy Cross Hospital in Fort Lauderdale, Florida. He was 99.

Stevens died of complications following a stroke that he suffered on July 15, according to a statement from the Supreme Court’s public information office. His daughters were by his side.

Chief Justice John G. Roberts Jr. said of Stevens:

“On behalf of the court and retired Justices, I am saddened to report that our colleague Justice John Paul Stevens has passed away. A son of the Midwest heartland and a veteran of World War II, Justice Stevens devoted his long life to public service, including 35 years on the Supreme Court. He brought to our bench an inimitable blend of kindness, humility, wisdom, and independence. His unrelenting commitment to justice has left us a better nation. We extend our deepest condolences to his children Elizabeth and Susan, and to his extended family.”

Shortly after retiring from the high court in June 2010, Stevens, described by one legal scholar as “one of the most articulate, disciplined and accomplished” justices in U.S. history, “made clear that he still had a “lot to say.”

Over the next nearly 10 years, the indefatigable nonagenarian wrote three books and gave numerous speeches around the country in which he critiqued past and current Supreme Court decisions.

In “Five Chiefs: A Supreme Court Memoir,” he chronicled his experiences with chief justices from his time as a Supreme Court clerk in 1947 until his retirement as an associate justice. His favorite chief, he later said, was the current one—Chief Justice John Roberts Jr.

And in “Six Amendments: How and Why We Should Change the Constitution,” he proposed ways to change the founding document because “rules crafted by a slim majority of the members of the Supreme Court have had such a profound and unfortunate impact on our basic law that resort to the process of amendment is warranted.”

His proposed amendments would, among other tasks, hasten the demise of the death penalty—a punishment he supported early in his career but later found costly and ineffective; prohibit partisan gerrymanders; return the Second Amendment to its original meaning, in his view, as a collective militia right, not an individual right; and reverse the deregulation of money in elections achieved most prominently by the high court’s ruling in Citizens United v. Federal Election Commission.

His final book was: “The Making of a Justice: Reflections on My First 94 Years.”

An Unlikely “Revolutionary”

With his trademark bow-tie, mild manner and unfailingly polite questions on the bench, Stevens was an unlikely “revolutionary” in any area of the law.

Born April 20, 1920, in Chicago, Stevens was the youngest of four boys in a wealthy family headed by his father, Ernest Stevens. In 1927, his father built the Stevens Hotel in Chicago, now the Hilton Chicago, which at the time was one of the largest and finest hotels in the world.

A “very happy childhood,” according to Stevens, was disrupted when in 1934 the hotel went bankrupt and Stevens’ father, grandfather and uncle were indicted for diverting funds from the life insurance company that his grandfather had founded in order to make bond payments on the hotel. His father was convicted of embezzling $1.3 million. But, in that same year, the state Supreme Court overturned the conviction, holding there was “not a scintilla” of evidence of any fraud.

The experience had a profound effect on him, Stevens later said. Some legal scholars trace to that experience the deep sense of fairness and commitment to due process in the criminal justice system that marked his judicial career.

pastedGraphic.png

Appellate Practice in Federal and State CourtsBOOK

Guide to the appellate process for both practitioners and students. From preserving issues for appeal to preparing winning motions, skilled appellate lawyers provide insights on key considerations.

Get More Information

After graduating from the University of Chicago, Stevens enlisted as an intelligence officer in the U.S. Navy, specializing in cryptology. His enlistment date was Dec. 6, 1941—the day before Pearl Harbor was attacked by the Japanese. Following his discharge in 1945, he enrolled in Northwestern University School of Law and graduated in two years after matriculating through regular and summer sessions.

Shortly before graduating, Stevens and his close friend, Art Seder, were informed by the dean of a possible clerkship with Justice Wiley Rutledge. The dean told the two men to decide who should be recommended. Stevens and Seder flipped a coin—and Stevens won.

Stevens’ clerkship with Rutledge was one of two factors that contributed to Stevens’ subsequent importance in the war on terror cases, Craig Green of Temple University School of Law told The National Law Journal in 2010. Stevens helped Rutledge write the dissent in Ahrens v. Clark in which Rutledge roundly criticized the majority for denying due process to German Americans detained during World War II.

“Rutledge was one of the crucial justices in the last round of really important war power decisions in World War II,” explained Green. “He was very strong on civil liberties. Those issues had a lot more prominence for Stevens than they might have had for another person.”

In Rumsfeld v. Padilla, the 2004 case involving U.S. citizen Jose Padilla, who was detained as an “unlawful combatant,” Stevens set out the foundation for his later opinions in a Rutledge-like dissent chastising his colleagues for dismissing Padilla’s case on jurisdictional grounds.

“At stake in this case is nothing less than the essence of a free society,” Stevens wrote. “Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber.

After his high court clerkship ended, Stevens went into private practice in Chicago and served briefly on the Republican staff of the House Judiciary Committee in Washington, D.C.

In 1969, he became counsel to a committee assigned to investigate corruption in the Illinois Supreme Court. The result of that work was the prosecution of two state justices for bribery and exposure of corruption throughout the judicial system. His efforts caught the attention of Sen. Charles Percy, R-Illinois, who recommended him for a seat on the U.S. Court of Appeals for the Seventh Circuit. President Richard Nixon nominated Stevens in 1970 and he was confirmed that year.

Stevens served five years on the appellate court where he was known as a moderate conservative judge. In 1975, President Gerald Ford nominated him to fill the Supreme Court seat previously held by Justice William Douglas. He was unanimously confirmed just 19 days later.

From Maverick to Court Leader

During his early years on the high court, Stevens was something of a maverick, often writing lone concurrences or dissents on seemingly tangential issues. But with the departure of Justice Harry Blackmun and liberal lion Justices William Brennan and Thurgood Marshall, Stevens assumed a new role as leader of the court’s left wing and the senior associate justice. He always considered himself a conservative, even when labeled the leader of the court’s “liberal block.”  He often said he never moved left; it was the court that had moved increasingly to the right.

His position as the court’s senior associate justice empowered him to assign majority opinions when he was in the majority and the chief justice was in dissent. When Stevens was in dissent, he also could assign the main dissent to himself or a colleague.

Stevens used the assignment power deftly, forging majorities in a number of significant cases, often with the helpful vote of Justice Anthony Kennedy. One of the areas in which he crafted landmark rulings was fallout from the war on terror.

“On terrorism, he has been not just the leading light on the left, but the master strategist,” said Stephen Vladeck of American University Washington College of Law at Stevens’ retirement in 2010. “For the most part, as Justice Stevens has gone, so has gone the court.”

Besides the Padilla opinion, Stevens wrote the majority opinion in Rasul v. Bush (2004) holding that federal courts have habeas corpus jurisdiction to consider challenges to the legality of the detention of foreign nationals held by the United States at the Guantanamo Bay Naval Base in Cuba. And, he led the majority in Hamdan v. Rumsfeld (2006), holding that military commissions set up by the Bush Administration exceeded the president’s authority and their structure and procedures violated the Uniform Code of Military Justice and the Geneva Conventions.

pastedGraphic_1.png

Guantanamo Bay detention center.

Stevens did not write the majority opinion in perhaps the most important of the terrorism cases—Boumediene v. Bush in 2008—but he did assign the majority opinion to Kennedy. In that case, the Court held that the Military Commissions Act of 2006 operated as an unconstitutional suspension of the writ of habeas corpus and reiterated that Guantanamo Bay detainees had access to federal habeas corpus.

Although Boumediene is considered the more important decision legally of the three by many scholars, Stevens’ opinions in Rasul and Hamdan have been more important politically, according to Vladeck and others. They prompted Congress to act and started a national debate. With all three decisions, the high court moved forward incrementally in its supervision of executive and congressional action in this new type of war.

Enforcing Due Process

In 2000, Stevens wrote the majority opinion in Apprendi v. New Jersey and triggered a small earthquake in criminal sentencing procedures. Apprendi held that due process required that any fact increasing the penalty for a crime above the prescribed statutory maximum must be proved to the jury beyond a reasonable doubt. A judge no longer could impose a higher sentence after finding the requisite facts; it had to be the jury.

Five years later in U.S. v. Booker, Stevens led the majority in dismantling the mandatory character of federal sentencing guidelines. In the process, he put together an unusual coalition, finding key support from Justices Antonin Scalia, who sought to reinvigorate the Sixth Amendment right to a jury trial, and Clarence Thomas.

The animating principle in both decisions was due process, or fairness, in the criminal justice system. It also animated Stevens’ rulings in two other keys areas of criminal law which are major parts of his legacy—the death penalty and right to counsel.

Throughout his career on the court, Stevens strived to bring “more law” to capital punishment. James Liebman of Columbia Law School and Lawrence Marshall of Stanford Law school, both former Stevens clerks, have described the justice’s approach to the death penalty as “less is better.” In Thompson v. Oklahoma (1988) and Atkins v. Virginia (2002), he wrote majority opinions narrowing the eligibility for the penalty by striking down capital punishment for those under age 15 and for mentally retarded persons, respectively. He also is credited with being particularly influential in Roper v. Simmons (2005), written by Justice Anthony Kennedy, eliminating the death penalty for persons under 18.

In the court’s first lethal injection challenge, Baze v. Reese (2008), he wrote a concurring opinion concluding that the death penalty “with such negligible returns to the state” is unconstitutional.

“I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes,” he wrote.

Justices Harry Blackmun and Lewis Powell Jr., both supportive like Stevens of the death penalty in 1976 when the high court reinstated capital punishment, also ultimately changed their view.

Stevens often held criminal defense lawyers to a higher standard of competency than has the court’s conservative majority in recent years. One of his last victories in this area has had major ramifications. In Padilla v. Kentucky (2010), he led the majority in holding that defense counsel has an affirmative duty to inform a client that a plea may carry a risk of deportation.

Stevens in Dissent

Two of Stevens’ most important dissents came near the end of his tenure in two of the Roberts court’s most controversial cases.

In District of Columbia v. Heller, a 5-4 majority, with Stevens dissenting, held that the Second Amendment guarantees an individual right to possess a firearm—unconnected with service in a militia– and to use that firearm for traditionally lawful purposes.

In his lengthy dissent, Stevens fought with the majority’s author, Scalia, on the original meaning of the amendment’s text, its history and the importance of a 70-year-old precedent holding that the right guaranteed was a collective one, not an individual one.

pastedGraphic_2.png

U.S. Supreme Court Justice Antonin Scalia. (Photo: Diego M. Radzinschi / ALM)

So certain that his view was correct, Stevens later told this reporter, he had circulated his draft dissent before the draft majority opinion went to the other justices.

“It was unusual,” he said. “We thought if anybody made a fair and thorough analysis of the history, that we would win. That’s why we put it out there.”

But he didn’t win. When asked what a justice should do if there are good arguments on both sides, he said, “History is important but as long as there are reasonable arguments on both sides, you look at other factors involved in the case. In this particular case, you’re really asking the question who should make the policy decisions of what gun control rules we should have. It seems to me this is the quintessential example of the policy question the elected representatives of the people should decide. That to me is a terribly important tie-breaker. And then you have stare decisis—when a rule is that well-settled and hasn’t caused any unfair results, normally you let the rule stand.”

The second major dissent came just six months before he retired. In Citizens United v. Federal Election Commission (2010), a 5-4 court struck down federal limits on independent campaign expenditures by corporations because they violated the First Amendment speech rights of corporations.

Stevens wrote that corporations are not people and money, which finances speech, is not “speech.” He later explained his views to this writer, saying, “An election is a form of debate. Where you have a debate, you make rules that equalize the two sides. When we have a debate in our court, each side gets 30 minutes and because one of them has a $100 million, they don’t get any extra time.”

At the end of his lengthy dissent, he wrote: “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

On the day the decision was issued, Stevens read a summary of his dissent from the bench and stumbled in its delivery. He later revealed that, despite being cleared of any medical problem by his doctor, he decided that day to retire.

Stevens’ wife of 35 years, Maryan, died on Aug. 7, 2015. He is survived by his children, Elizabeth Jane Sesemann (Craig) and Susan Roberta Mullen (Kevin), nine grandchildren: Kathryn, Christine, Edward, Susan, Lauren, John, Madison, Hannah and Haley, and 13 great-grandchildren. His first wife, Elizabeth Jane, his second wife, Maryan Mulholland, his son, John Joseph, and his daughter, Kathryn, preceded him in death.

Funeral plans will be released when available, according to the Supreme Court.

*****************************************

One of Justice Stevens’s greatest contributions was his opinion in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). That case established the generous “well-founded fear” standard for asylum eligibility under the Refugee Act of 1980. Justice Stevens rejected the Government’s position that a higher “clear probability,” in other words “more likely than not,” standard applied. 

In parsing the history and intent behind the Act’s “refugee” definition, which was taken from the 1951 United Nations Convention on the Status of Refugees, Justice Stevens cited extensively from the UNHCR’s U.N. Handbook on Procedures and Criteria for Determining Refugee Status. His opinion also famously stated “There is simply no room in the United Nations’ definition for concluding that because an applicant has only a 10% chance of being shot, tortured, or otherwise persecuted that he or she has no ‘well-founded fear’ of the event happening.” 480 U.S. 439.

Justice Stevens closed by stating:

Our analysis of the plain language of the Act, its symmetry with the United Nations Protocol, and its legislative history, lead inexorably to the conclusion that to show a “well-founded fear of persecution,” an alien need not prove that it is more likely than not that he or she will be persecuted in his or her home country. We find these ordinary canons of statutory construction compelling, even without regard to the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien. See INS v. Errico, 385 U.S. 214, 225 (1966); Costello v. INS, 376 U.S. 120, 128 (1964); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948).

Deportation is always a harsh measure; it is all the more replete with danger when the alien makes a claim that he or she will be subject to death or persecution if forced to return to his or her home country. In enacting the Refugee Act of 1980 Congress sought to “give the United States sufficient flexibility to respond to situations involving political or religious dissidents and detainees throughout the world.” H. R. Rep., at 9. Our holding today increases that flexibility by rejecting the Government’s contention that the Attorney General may not even consider granting asylum to one who [480 U.S. 421, 450] fails to satisfy the strict 243(h) standard. Whether or not a “refugee” is eventually granted asylum is a matter which Congress has left for the Attorney General to decide. But it is clear that Congress did not intend to restrict eligibility for that relief to those who could prove that it is more likely than not that they will be persecuted if deported.

480 U.S. 449-50.

I have a particular recollection of the difference made by Justice Stevens’s opinion in Cardoza-Fonseca because I worked on that case. At that time, I was the Deputy General Counsel of the “Legacy INS.” I assisted the Solicitor General’s Office in developing the INS’s, ultimately losing, position that the Act required a showing that persecution was “more likely than not.”

I was present in Court on October 7, 1986 for the oral argument.  Ms. Cardoza-Fonseca was represented by a brilliant young lawyer from San Francisco named Dana Marks Keener, who won the day for her client. It was Dana’s first, and as far as I know only, argument before the Court.

Hon. Diana Leigh Marks
Hon. Dana Leigh Marks
U.S. Immigration Judge
San Francisco Immigration Court
Past President, National Association of Immigration Judges

By contrast, her opposing counsel that day, Deputy Solicitor General Larry Wallace, had 157 oral arguments before the Court. According to Wikipedia, Wallace “holds the record for most cases argued before the Supreme Court by any attorney, public or private, in the twentieth century.”

Shortly thereafter, Dana (now known as Dana Leigh Marks) was appointed a U.S. Immigration Judge in San Francisco. We later became great friends and colleagues.

Dana went on to become a President of the National Association of Immigration Judges (“NAIJ”). Dana is one of America’s leading proponents of judicial independence for U.S. Immigration Judges and the establishment of an independent Article I U.S. Immigration Court. She has made countless appearances on television and radio and is often quoted in major media. I often refer to Dana as one of the “Founding Mothers” of U.S. asylum law.

When I first read Justice Stevens’s opinion, I realized he was right, and we had been wrong. Thereafter, I made it a point to be faithful to the “10% test” and the generous interpretation of “well-founded fear” established by Cardoza-Fonseca and later incorporated by the BIA in Matter of Mogharrabi, 19 I&N Dec. 437 (BIA 1987).

When I was appointed Chairman of the BIA by then Attorney General Janet Reno in 1995, I was taken aback to discover that some of my colleagues appeared to be giving only “lip service” to Cardoza-Fonseca and Mogharrabi, while actually applying what seemed to me the discredited “more likely than not” standard to asylum cases. That lead to lots of dissenting opinions and my eventually being “exiled” to the Arlington Immigration Court by Attorney General John Ashcroft. During my 13 years on the bench in Arlington, I always tried my best to remain faithful to Cardoza-Fonseca and Mogharrabi and to “bring them to life” in my courtroom and in my teaching, both in and out of court.

As a result of Dana’s arguments and Justice Stevens’s opinion in Cardozo-Fonseca, the situation for U.S. asylum seekers improved dramatically over the next three decades. On the eve of Cardoza-Fonseca, only about 10% of asylum applicants were successful in Immigration Court. By 2012, over 50% were succeeding in their claims. Thus, it seemed that the Justice Stevens’s vision and the “generous promise of Cardoza-Fonseca” were on the verge of finally being fulfilled.

Alas, it was not to happen. Starting with the Obama Administration’s misguided (and ineffective) “tough guy” response to a largely exaggerated “border surge” of 2014, and continuing with the Trump Administration’s all out White Nationalist assault on refugee and asylum law and Due Process generally, the DOJ has used various devices to force down the asylum grant rate everywhere, including Immigration Court. Now, only about one-third of applications are being granted, notwithstanding that conditions in most of the “sending countries” for refugees and asylum seekers have actually gotten measurably worse since 2012.

As shown by their scofflaw actions this week, the Trump Administration intends to effectively repeal the Refugee Act of 1980 and withdraw from the Convention by bogus regulations and administrative fiat. I believe that Justice Stevens would be among those of us finding that situation deplorable.

However, like Justice Stevens, there are many of us out here still carrying on the tradition of human kindness, generosity, common sense, and the “upward arc of the law.” Through the efforts of the “New Due Process Army” and others who will follow in their footsteps, I believe that justice and human dignity will eventually triumph and that Justice Stevens’s wise and inspiring words in Cardoza-Fonseca will once again be given life and become the hallmark of U.S. asylum adjudication and the recognition of human rights in the United States. 

Thanks again, Justice Stevens, for a life well-lived and your outstanding contributions to American law and to humanity. 

PWS

07-18-19

FRANZ KAFKA’S AMERICA: One Of The Worst Judges In Our Most Dysfunctional Court System Spent 22 Years “On The Bench” & NEVER Granted An Asylum Case! — How Could This Happen? — Gross Distortion Of Justice Has Been Unfolding Right Before The Eyes Of Congress & The Article III Courts For Years — Time For Change!

https://www.topic.com/your-judge-is-your-destiny

Gabriel Thompson & Leonardo Santamaria in Topic Magazine:

“Your Judge Is Your Destiny”

Agnelis L. Reese has presided over more than 200 hearings during the past five years as an immigration judge. Unique among her peers, she has rejected every single case.

Words by Gabriel Thompson

Illustrated by Leonardo Santamaria

Gabriel Thompson
Gabriel Thompson
Author

Leonardo Santamaria

Artist

https://www.topic.com/your-judge-is-your-destiny?utm_source=topicsite&utm_medium=copiedlink&utm_campaign=topicsite&utm_term=sharebutton_main&utm_content=link

************************************

Read the complete article at the link.

The Supreme Court set forth a generous view of asylum law — even a 10% chance of persecution is enough to qualify — in the 1987 case Cardoza-Fonseca v. INS, discussed in this article. Following the Supreme Court’s directive, the BIA in Matter of Mogharrabi adopted a generous “reasonable person” standard for asylum eligibility, assuring everyone that asylum could be granted “even where persecution is significantly less” than probable.

However, judges like Judge Agnelis Reese have a different idea: treat asylum as a “loophole” and abuse your power over individuals’ lives by looking for bogus ways to deny protection rather than grant it. As pointed out by this article, one of the “best” of these “legal gimmicks” is simply arbitrarily to decide not to believe anyone’s claim or to “nit-pick” memories in a way that would establish Judge Reese and others like her as “inherently not credible” if applied to them. Much like the Trump Administration as a whole.

However, this is about more than just one ill-qualified asylum judge. For 22 years, Judge Reese was allowed to abuse asylum seekers with her one-sided decision making. That spanned two entire Administrations, one of each party, and two partial ones. Yet the BIA, EOIR, the DOJ, and life-tenured Article III Court of Appeals Judges failed to intervene to force Judge Reese, and other like her, to either apply asylum law in the fair, reasonable, and generous manner it was intended or to find other jobs.

There are “other Judge Reeses” out there today screwing the most vulnerable among us with dishonest interpretations of asylum law and facts, particularly in the area of credibility and “nexus” to a “protected ground.” Now, however, instead of being “outliers,” they are the kinds of “shining example” judges who implement the Administration’s White Nationalist false narrative that all asylum seekers from all countries are “gaming the system” and ought to be rejected en masse, without fair and impartial adjudications, in some cases amounting to literately “death sentences” without anything approaching due process.

All this is going on right under the noses of life-tenured Article III Judges who are supposed to be enforcing Due Process and fundamental fairness by insuring that the Immigration Court system provides fair and impartial adjudications (it doesn’t), that the generous criteria set forth in INS v. Cardoza-Fonseca and Matter of Mogharrabi are not just given “lip service” but are actually applied in every case (they aren’t), that credibility determinations are based on the record as a whole and all relevant factors (they aren’t), and that “mixed motive” for acts of persecution is properly considered and applied (it isn’t).

Of course, Congress and to some extent the voters are to blame for the current disgraceful parody of justice in our Immigration Courts. But, careers like that of Judge Reese are proof that the Article III Courts are also failing to live up to their statutory, constitutional, and human obligations and thus have become part of the problem, rather than part of the solution.

I can only hope that some future legal historian will analyze in detail, naming names, the failure of the Article III Courts, up to and including the Supremes, to perform their functions with integrity and thereby to have prevented the legal, constitutional, and human tragedy and mockery of justice taking place every day in our broken Immigration Courts.

Unqualified, yet empowered, judges like Reese are a symptom, rather than the cause of, that broken system.

Just yesterday, four distinguished legal organizations sent a joint letter to Congress calling for the establishment of an independent U.S. Immigration Court in view of the demonstrated catastrophic failure of the current system to provide Due Process to asylum seekers and other migrants:

ABA signs joint letter to Congress on establishing an independent immigration court system

WASHINGTON, D.C., JULY 9, 2019 —The American Bar Association has joined with three other legal organizations to call on Congress to establish a separate immigration court system that is independent of the U.S. Department of Justice.

ABA President Bob Carlson, along with the presidents of the American Immigration Lawyers Association, the Federal Bar Association and the National Association of Immigration Judges, will send a joint letter to Congress on July 11 stating that immigration courts “cannot meet the standards which justice demands” because they are not truly independent. This issue is particularly crucial as immigration courts struggle with crisis-level backlogs of almost 900,000 cases.

Under the current arrangement, immigration courts are part of the U.S. Department of Justice, and the judges in those courts are answerable to the U.S. Attorney General, who is also the nation’s chief prosecutor.

In their joint letter to Congress, the four organizations note that this inherent conflict of interest means that immigration judges are “particularly vulnerable to political pressure and interference.” In addition to the structural issues, the letter said that problems have “resulted in a severe lack of public confidence in the system’s capacity to deliver just and fair decisions in a timely manner.”

The lack of independence in the immigration court system was also addressed in the ABA’s recent updated report, “Reforming the Immigration System.” In the report, the organization urged removing the immigration courts from DOJ to ensure they are given the independence they need to be fair, impartial arbiters.

A telephone media briefing on the letter will be held Thursday, July 11, at 1pm ET/10am PT immediately following submission of the letter to Congress.

Briefing speakers

·         Wendy Wayne, Chair, American Bar Association Commission on Immigration

·         Jeremy McKinney, Second Vice President, American Immigration Lawyers Association

·         Hon. Denise Noonan Slavin, former Immigration Judge and President Emeritus of the National Association of Immigration Judges

·         Elizabeth Stevens, Chair, Federal Bar Association Immigration Law Section

·         Greg Chen, Director of Government Relations, American Immigration Lawyers Association (Moderator)

 

Contact twiseman@aila.org to receive dial-in information and the embargoed letter.

**********************************

PWS

07-10-19

HON. JEFFREY S. CHASE: The History Of A Flawed Judiciary; The Intentional Tilting Of Asylum Law Against Asylum Seekers; The Farce Of Justice In The Immigration Courts; The Need For An Independent Article I Court!

 

The Immigration Court: Issues and Solutions

The following is the transcript of my lecture on March 28, 2019 at Cornell Law School as part of its Berger International Speaker Series titled The Immigration Courts: Issues and Solutions. Here is a link to the actual recording of the lecture. My heartfelt thanks to Prof. Stephen Yale-Loehr, Prof. Estelle McKee, and everyone at Cornell Law School for the honor of speaking, and for their warmth, intelligence, and dedication.

I’ve had a couple of occasions recently to consider the importance of faith in our judicial institutions.  I discussed the issue first in a blog post in which I commented on the Kavanaugh confirmation hearings, and then again in remarks relating to a play I was involved in in NYC based on an actual immigration court case, called The Courtroom.  Attorneys more commonly focus on faith in our courts on an individualized, case-by-case basis.  But in a democracy, a larger societal faith in our judicial institutions is paramount. And this may sound strange, but a large reason for this is that our courts will not always reach the right result.  But society will abide by judicial outcomes that they disagree with if they believe that the result was reached impartially by people who were genuinely trying to get it right. Abiding by judicial decisions is a key to democracy.  It is what prevents angry mobs from taking justice into their own hands. In the words of Balzac, “to distrust the judiciary marks the beginning of the end of society.”

If we accept this point of view, I believe that recent developments provide a cause for concern.  As Jeffrey Toobin recently wrote in The New Yorker, “these days the courts are nearly as tribal in their inclinations as the voters are,”  a point that the partisan nature of recent Supreme Court confirmation battles has underscored.

Our immigration courts are particularly prone to political manipulation because of their unique combination of structure, history, and function.  The present administration has made no secret of its disdain for judges’ ability to act as a check on its powers. But the combination of the fact that immigration judges are under the direct control of the Attorney General, and that their jurisdiction concerns a subject matter of particular importance to this administration has made this court especially ripe for interference.

A brief history of the immigration courts reveals it to be what my friend Prof. Deborah Anker at Harvard Law School calls a “bottom up” institution.  Immigration Judges originated as “special inquiry officers” within the old INS, where they held brief “hearings” under very non-courtlike conditions. In 1998, while I was an IJ, the court held a ceremony to commemorate the 25th anniversary of the immigration courts.  This was not the anniversary of its recognition as a court by Congress, which came much later, but rather, the anniversary of the agency beginning to refer to its personnel as judges.

The keynote speaker at the ceremony was William Fliegelman, who was the first person to hold the title of Chief Immigration Judge.  To the extent that his historical account was accurate, the immigration judge corps essentially invented itself, purchasing their own robes, designing the layout of their hearing rooms to better resemble courtrooms, and coordinating with INS district counsel to send its attorneys to each hearings to act as prosecutors.  Judge Fliegelman and then-INS District Counsel Vincent Schiano together created the Master Calendar hearing which is still used by the courts as its method of preliminary hearing. In other words, according to Judge Fliegelman’s account, the immigration judges presented themselves to the Washington bureaucrats as a fait accomplis, leaping fully formed much like Athena from Zeus’s head.

However, the judges still remained employees of the INS, the agency prosecuting the cases.  Most of the immigration judges were former INS trial attorneys. It was not uncommon for the judge and prosecutor to go out to lunch together, which didn’t exactly create the appearance of impartiality.  In 1983, the immigration judges, along with the Board of Immigration Appeals, were moved into an independent agency called the Executive Office for Immigration Review (“EOIR”). However, EOIR remained within the Department of Justice, as did the INS.  As both the INS commissioner and EOIR director reported to the same boss at Main Justice, and as INS was a much larger, more influential agency than EOIR, the former continued to be able to exert undue influence on the latter agency. That dynamic ended when the functions of the old INS were moved into the newly-created Department of Homeland Security in 2003.  Actually, EOIR was slated to move to DHS as well, but managed to finally achieve some space from ICE once again only through the IJ’s own lobbying efforts.

Although EOIR did begin sporadically appointing private attorneys to the bench in the 1980s, the number of more liberal private bar advocates appointed increased under the Clinton Administration in the mid-1990s, significantly changing the overall makeup of the immigration judge corps.  Many of those more liberal hires became retirement eligible under the present administration.

It wasn’t until 1996 that Congress finally recognized immigration judges by such title in statute.  As I was a new judge at the time, I can report that yet again, this development was accomplished by the immigration judges themselves, who chipped in to pay a lobbyist to bring about this change, with no assistance from EOIR management.

Soon thereafter, the immigration judge’s union began advocating for independent Article I status.  In the 1990s, then-Congressman Bill McCollum of Florida sponsored such a bill, which was opposed by EOIR management (out of its own self-interest), and which did not advance in Congress.  A very similar bill was drafted last year by New York Senator Kristin Gillibrand, which was never proposed to the Republican-controlled Congress.  A main difference between the 1990s proposal and present one is the climate in which they are made. While many of the arguments for Article I status involved hypothetical threats in the 1990s, over the past two years, many of the fears that gave rise to such proposal have become reality.

Some of the recent developments underscoring the urgency of the need for Article I courts include:

Politicized IJ hiring.  Following the more diverse corps of IJs hired under the Clinton Administration, a backlash occurred under the George W. Bush Administration.  A report following an investigation by the DOJ Inspector General’s Office detailed a policy of extending IJ offers only to those who had been found to meet the proper conservative, Republican profile.  For example, the report indicated that one candidate was found to have the proper conservative views on the “three Gs:” God, Guns, and Gays.

Although such practices came to an end in the latter part of the Bush Administration, in May of last year, a letter by 8 members of Congress. Prompted by whistleblowers within EOIR, requested the DOJ Inspector General to investigate new reports of a return of such politicized hiring under the present Administration.  At present, nearly all new IJ hires are former prosecutors or those who otherwise have been deemed to fit this administration’s ideological profile.

Completion quotas:  As of October 1, 2018, IJs are required to satisfy completion quotas set by EOIR management.  According to the President of the Immigration Judges’ Union, Hon. Ashley Tabaddor, no other class of judges are subject to similar quotas.  Judge Tabaddor has stated that IJs cease to be true judges under such system, as an adjudicator who must repeatedly choose between the requirements of due process and their own job security is one who lacks the independence required of judges.

Since October 1, judges are treated to a graphic on their computer screens each day which resembles the gauges on an airplane or sports car, with an animation of a needle which in seven different “gauges” will either be in the green, yellow, or red zone.  Not surprisingly, IJs find this demeaning.

Under the quotas, IJs are each required to complete 700 cases per year.  95 percent must be completed at their first scheduled individual hearing.  The judges may not have more than 15 percent of their decisions remanded or reversed by the BIA.

Judges have reported that when they find it necessary to continue a merits hearing, they soon receive a call from management requiring them to provide a detailed defense of their decision to continue the case.  In some courts, EOIR management has asked the court’s judicial law clerks to act as spies by listening to the recording of the continued hearing and reporting whether the in-court statements of the judge match the explanation the judge later provided to their supervisor for the continuance.  As a result, judges appointed by the Attorney General of the U.S. to hear life-and-death claims for asylum now feel the need to play-act on the record to avoid punishment from their superiors.

Another thing about quotas: right after they were announced, a reporter from NPR called me to ask what impact they were likely to have on judges.  In response, I suggested that we look at the most recent case completion figures on EOIR’s website.  I said we should first look at the court with the highest denial rate in the country, Atlanta. We divided the total number of case completions by the number of judges, and found that these judges averaged over 1,500 completions for the year, or more than double what was needed to meet the quota.  We then did the same for one of the more liberal courts in the country, the New York City court, and found that the judges there averaged just 566 completions a year, well under what would be needed to satisfy the quota. So just to be clear, the quotas are not designed to have a neutral impact; the administration hopes that forcing more completions will also result in more denials.

It should be noted that despite these quotas and numerous other efforts by the Trump Administration to supposedly increase the court’s productivity, the backlog has actually increased by 26% over the past two years.

Continued impact of the 2003 BIA purge:  In 2002, then Attorney General John Ashcroft expressed his dismay for some of the BIA’s more liberal decisions.  His response was to strip some of the BIA’s authority (in particular, taking away its de novo review authority over immigration judges’ findings of fact).  Ashcroft also announced that, in order to improve an overburdened BIA’s efficiency, he would reduce its size from 21 to 12 members. If you believe that the last part makes no sense, believe me, you are not alone.

One year later, Ashcroft followed through on his threat, removing every judge he deemed to be liberal from the BIA.  The Board, which had always been conservative leaning, subsequently took a much greater tilt to the right.  There was no correction under the Obama Administration, meaning that the BIA for the past 16 years and counting has been devoid of any liberal members.  It’s present chair, David Neal, is a Republican who served as a staff member to former U.S. Senator and Kansas Governor Sam Brownback.  The Board’s most prolific judge under the Trump Administration, Garry Malphrus, had been appointed to the bench after playing a role in the “Brooks Brothers riot,” in which Republican faithful hampered the recount of ballots in Florida following the 2000 presidential election.  Board Member Ed Grant was a Republican staff member to Rep. Lamar Smith, a Texas Republican with anti-immigrant views who previously chaired the House Immigration Subcommittee.

Of course, the result has been the issuance of more conservative precedent decisions which are binding on immigration judges.  And due to the common practice of Circuit Courts to accord deference to those decisions, under Chevron, Brand X, or Auer deference, humane interpretations of the immigration laws have become harder to come by.  Prior to 2002, the BIA commonly decided precedent decisions en banc, often providing a range of concurring and dissenting opinions, some of which were later adopted by the circuit courts on appeal.  But since that time, the Board only publishes three-member panel decisions as precedent, with a very small number of dissents.

A recent article in the Stanford Law Review by Prof. Jennifer Lee Koh provides an example of one of the effects of the Board’s more conservative makeup.  Being convicted of what is characterized as a “crime involving moral turpitude,” or CIMT, may render noncitizens removable from the U.S. and ineligible for immigration benefits or reliefs.  An attempt by the last Attorney General to serve under the Bush Administration, Michael Mukasey, to increase the BIA’s ability to find crimes to be CIMTs by creating his own alternative to the categorical and modified categorical approaches was vacated by his successor, Eric Holder (after having been rejected by 5 Circuit Courts of Appeal).  As several related Supreme Court decisions sealed the matter, the Board in 2016 was finally forced (at least on paper) to acknowledge the need to make CIMT determinations through a strict application of the categorical approach. However, as Prof. Koh demonstrates with examples from BIA precedent decisions, since 2016, the Board, while purporting to comply with the categorical approach, in fact has expanded through its precedent decisions the very meaning of what constitutes “moral turpitude,” enabling a greater number of offenses to be categorized as CIMTs.

Consistent with this approach was a training given by now-retired arch conservative Board member Roger Pauley at last summer’s IJ training conference.  From the conference materials obtained by a private attorney through a FOIA request, Pauley appears to have trained the judges not to apply the categorical approach as required by the Supreme Court when doing so won’t lead to a “sensible” result.  I believe the IJ corps would understand what this administration is likely to view as a “sensible” result. Remember that the IJs being trained cannot have more than 15 percent of their decisions remanded or reversed by the BIA under the agency’s completion quotas.  So even if an IJ realizes that they are bound by case law to apply the categorical approach, the same IJ also realizes that they ignore the BIA’s advice to the contrary at their own risk.

As to the law of asylum, not long after the purge of its liberal members, the BIA issued six precedent decisions between 2006 and 2014 making it more difficult to qualify for asylum based on membership in a particular social group.  The standard set out by the BIA in its 1985 decision Matter of Acosta – requiring the group to be defined by an “immutable characteristic” that its members either cannot change, or that is so fundamental to their identity that they should not be required to change it – had worked well for 21 years.  However, with no liberal push back, the more right-leaning Board members chose to add the additional requirements of particularity and social distinction to the PSG determination. The Board’s reliance on 2002 UNHCR Guidelines as justification for adding the latter requirement was most disingenuous, as the UNHCR employed the word “or” to allow those unable to otherwise satisfy the PSG requirements an alternative means of doing so, thus expanding those able to meet the definition.  But by changing the “or” to an “and,” the Board required applicants to establish both immutability and social distinction, thus narrowing the ranks of those able to qualify.

The changes had a dramatic impact on the large number of refugees escaping gang violence in Central America who generally relied on particular social group-based asylum claims.  Furthermore, while family has always been acknowledged as a particular social group, the BIA issued a decision in 2017 making it much more difficult to establish that the persecutor’s motive is on account of the victim’s family membership.   In that decision, the BIA offered the Bolshevik assassination of members of the family of Czar Nicholas II in Russia in 1918 as an example of what must be established to be granted asylum based on one’s family membership.   I have yet to find any lawyer who represents clients whose family presently enjoys a similar standing to the Romanov family in 1918 Russia. The ridiculously narrow interpretation was obviously designed to make it close to impossible for such claimants to qualify for relief.

The BIA also recently held that a Central American woman who was kidnaped by a guerrilla group and forced to cook and clean for them while in captivity had provided material support to a terrorist organization, thus barring her from a grant of asylum.  In reaching such holding, the Board determined that the victim should have reasonably known that the Salvadoran guerrilla group that kidnaped her was a terrorist organization in 1990, a time at which the U.S. government did not seem to yet hold such view.

Of course, IJs are bound by these decisions.  There have always been IJs who have forwarded new and sometimes creative legal theories which overcome these Board-imposed obstacles in order to grant relief.  But as stated previously, the quota guidelines will deter such creative decisionmaking by threatening the IJ’s job security. Judges should not have to fear repercussions for their good faith interpretations of the law.

Under prior administrations, ICE prosecutors have agreed in worthy cases to waive appeal when appropriate, and would even stipulate to grants of relief in worthy cases.  Also, under the previous administration, ICE would commonly agree to exercise its prosecutorial discretion to close non-priority cases. However, ICE attorneys at present are directed to oppose everything and agree to nothing.

Increased AG certifications:  In 2016, former Bush Attorney General Alberto Gonzales co-authored an article in the Iowa Law Review suggesting that instead of issuing a controversial executive order, the Obama Administration should have instead had the Attorney General issue precedent decisions in order to change the immigration laws.  A strange regulatory provision allows an Attorney General to direct the BIA to refer any decision for review. The AG can then simply rewrite any decision as he or she sees fit, creating precedent binding on the BIA, IJs, and DHS.

Clearly, the present administration is using Gonzales’s article as its playbook.  Apparently not satisfied with its power to appoint its own immigration judges, with packing the BIA with conservative former Republican Congressional staffers, and with its power to publish regulations interpreting the immigration laws to its own will and to issue policy directives binding on the judges, the Attorneys General serving the Trump Administration are also issuing precedent decisions through the process of self-certification at an alarming rate.  The decisions are different from those of other administrations, in that they are self-certified through procedural irregularity, are decided based on issues entirely different than those presented before the IJs and the BIA, and upend what had been settled issues of law that were not being questioned by either party to the action.

Former Attorney General Jeff Sessions used the certification process to make immigration judges less judge-like by stripping away necessary tools of docket management such as the right to administratively close proceedings, to terminate proceedings where appropriate, or to freely grant continuances in pending cases.  Sessions certified one case, Matter of E-F-H-L-, to himself four years after the BIA’s decision in the case, after it had been not only remanded back to the IJ, but had subsequently been administratively closed to allow the respondent to await the approval of an immigrant visa petition.  Sessions’s purpose in digging such an old case up was to vacate its holding guaranteeing asylum seekers a right to a full hearing on their application before an immigration judge. And his interest in doing so was to suggest to immigration judges that a way to increase their efficiency would be to summarily deny asylum claims without affording a hearing, which some judges have actually started to do.  And in another decision, Sessions suggested exactly what type of asylum cases he deemed most appropriate for such treatment.

Sessions’s most egregious decision attempted to unilaterally strip women of the ability to obtain asylum as victims of domestic violence.  This was not an issue that was in dispute, but had been a matter of settled law since 2014, when the BIA issued its precedent decision in Matter of A-R-C-G-, in which the DHS had stipulated that “married women in Guatemala who are unable to leave their relationship” constituted a cognizable particular social group to which asylum could be granted.

In certifying the case of Matter of A-B- to himself to reconsider such holding, Sessions invited briefs from all interested parties.  A total of 14 briefs were filed, two by the parties, and 12 amicus briefs (including one from my group of former IJs and BIA members).  The briefs from both parties (i.e. including DHS), and of 11 of the amici (the exception being FAIR, an anti-immigration group that regularly files the sole opposing amicus brief in such cases) all concluded that A-R-C-G- should not be vacated, and constituted a valid application of law which satisfied all of the BIA’s post-purge obstacles described above.  Thus, with the exception of FAIR, there was agreement by DHS, the BIA, the private bar, legal scholars, advocacy groups, and under international law as to the validity of the existing practice.

Nevertheless, Sessions issued a poorly-written decision in which he strongly disagreed, and vacated A-R-C-G- while attempting to make it close to impossible for such claims to succeed in the future.  I emphasize the word “attempting,” because fortunately, Sessions is a terrible lawyer with no asylum law expertise.  As a result, his decision is largely dicta, which even Department of Justice attorneys admit only managed to vacate A-R-C-G- without otherwise altering the legal factors that would allow such grants in the future.  But the BIA has simply been dismissing such claims on the grounds that Sessions had rejected them, without undertaking the individualized analysis required in such cases.  As a result, the circuit courts, and not the BIA, will likely decide the propriety and impact of Sessions’s decision.

My final note concerning A-B- is that while the case was still pending before him, Sessions stated in a radio interview in Arizona that “We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence; therefore they are entitled to enter the United States.  Well that’s obviously false, but some judges have gone along with that.” Clearly, any judge making such a statement would have to recuse him or herself from the case. But Sessions, who never hid his bias against immigrants (among other groups), neither felt the need to be impartial, nor did the law require it of him.

Which makes Deputy Attorney General Rod Rosenstein’s recent remarks to a new class of immigration judges particularly worrisome.  Rosenstein reminded the group that they are “not only judges,” but also employees of the Department of Justice, and members of the executive branch.  As such, Rosenstein stated, IJs must “follow lawful instructions from the Attorney General, and…share a duty to enforce the law.”  But shouldn’t judges who make such important decisions that sometimes involve life and death be “only judges?”

The incongruity is that the DOJ is an enforcement agency.  As such, it is not designed to be either neutral or transparent.  As already noted at length, it is headed by a Presidential political appointee, many of whose decisions and policies are guided by a purely political agenda.  As such, DOJ has never understood IJs, who need to be neutral, transparent, and insulated from political influence.

Although many in EOIR’s management hold titles that make them sound like judges, in fact, they see their role not as protectors of immigration judge independence, but rather as executive branch, DOJ managers whose main job is to appease their higher-ups in the Justice Department.  They view DHS not as one of the parties appearing before the agency, but rather as fellow executive-branch comrades. They take the same view of attorneys with OIL and the U.S. Attorneys Office who litigate immigration decisions in the federal courts. Significantly, they view the private bar and academia as being outside of this executive branch fold.

As my friend and fellow blogger, retired Immigration Judge Paul Schmidt recently wrote in a blog post, “what real court acts as an adjunct to the prosecutor’s office?” adding that such relationship is common in authoritarian, refugee-producing countries.

The last recent development I wish to mention that underscores this conflict was the treatment of a highly respected and fair immigration judge in Philadelphia, Steven Morley, who had issued a decision which was certified and reversed by Sessions, Matter of Castro-Tum.  Castro-Tum entered the U.S. as an unaccompanied minor.  After his release from ICE detention, he did not appear for his immigration court proceedings.  However, Judge Morley was concerned, based on his past experience, that ICE had provided the court with an inaccurate address for the youth, and felt it would be unfair to order him removed in absentia without first determining if he had received proper notice of the hearing as required by law.

On remand, Judge Morley was directed by Sessions to proceed  according to the section of the law that governs in absentia orders.  Now, that section also requires a finding of proper notice on the respondent.  Judge Morley therefore proceeded properly and consistently with the AG’s order when he granted a short continuance for briefing on the issue of proper notice.  In response, the case was immediately removed by EOIR management from Judge Morley’s calendar. While a case would normally then be randomly reassigned to another judge in the same court, EOIR hand chose a management-level supervisory judge known for following the company line, who was sent to Philadelphia to conduct a single five-minute hearing in which she ordered the youth removed in his absence.  Furthermore, Judge Morley was chastised by his supervisor, Assistant Chief Immigration Judge Jack Weil, who, according to a grievance filed by the IJ’s union, incorrectly told Judge Morley that he was required to enter a final decision at the first hearing following the remand, and further falsely accused him of acting unprofessionally in purportedly criticizing the AG’s and BIA’s decisions.  86 similar cases were subsequently removed from Judge Morley’s calendar. Such action sent a very strong warning to the entire IJ corps (many of whom are new hires still in their two year probation period) of what to expect should they choose to act as “only judges” and not loyal employees of the Attorney General and executive branch.

The above inadequacies in the immigration court system have allowed the present administration to exploit it like never before in support of its own political narrative.  Examples of this include:

The Trump Administration’s early trumpeting of causing a “return to the rule of law” by increasing the number of removal orders its judges entered compared to the prior administration.  Early on, this was supposedly “accomplished” through what Paul Schmidt refers to as “ADR” or Aimless Docket Reshuffling. Judges in busy courts were told to continue two weeks worth of cases at a time (usually involving noncitizens represented by attorneys who had already waited years for their day in court) to instead travel to courts near the southern border to hear cases of largely unprepared and unrepresented, newly-arrived asylum seekers.  To repeat, in fact, the backlog has grown significantly in spite of such policies.

The administration also maintains a false narrative that Central American asylum seekers fleeing horrible gang and domestic violence are not really refugees, and in fact are dangerous criminals.  Through the AG’s issuance of Matter of A-B- and the compliant BIA’s reliance on that decision to give short shrift to such claims; through the detention of asylum seekers in remotely located detention centers, and the new policy of forcing some to wait in Mexico while their claims are adjudicated, thus severely limiting such asylum seekers access to counsel and their ability to meaningfully participate in compiling evidence and otherwise presenting their best claims; by indoctrinating new IJs that “these are not real claims,” the administration has artificially lowered the percentage of such claims that are being granted asylum, which thus furthers its narrative that “these are not real refugees.”

Furthermore, by forcing those attempting to apply legally to wait in Mexico under inhospitable and sometimes dangerous conditions for increasingly long periods of time, those who finally out of desperation cross the border without authorization are immediately arrested and tried criminally for the “crime” of crossing the border illegally, thus supporting the narrative that our country is being invaded by “criminals.”

The administration also maintains the narrative that immigrants should just be deported quickly, without due process and hearings before judges.  It is trying to accomplish this through the transformation of the immigration judge corps. By stripping IJs of much of what makes them independent judges, through the removal of necessary case management tools such as administrative closure, termination, and the ability to grant continuances; by imposing on them insulting completion quotas, and by making IJ training less about the proper application of the law and more about efficiency, many more experienced IJs are retiring sooner than they intended.  The administration is most happy to replace them with their hand-picked candidates who they expect to be made more compliant through the lengthy period of probation, the completion quotas, and an indoctrination of the type described above.

The result of all this was summarized in a detailed report of the ABA released last week.  The ABA report concluded that the immigration courts at present are “irredeemably dysfunctional” and on the verge of collapse.  There are those who believe that such collapse has been the goal all along, as it would allow the administration to replace the present system with one that is even more compliant and affords even less due process, perhaps something like the old special inquiry officer model.

What can be done?  A number of respected organizations, including the ABA, the Federal Bar Association, the American Immigration Lawyers Association, and of course the National Association of Immigration Judges have endorsed moving the immigration courts out of DOJ and making them an independent Article I court.

Article I status will likely not solve every problem, but for the reasons detailed above, it is an absolutely necessary starting point.  Article I is truly a non-partisan position. It’s first sponsor, Rep. McCollum, was a Republican; Sen. Gillibrand, who has recently shown interest in the issue, is a Democrat.  As the leader of a group of former immigration judges and BIA members, which includes members from across the ideological spectrum, I have found certain issues to be divisive within the group.  However, the issue of immigration judge independence has been unique in garnering universal support.

While it is too early to discuss the details of what such bill might contain, it is hoped that the BIA as presently constituted will be replaced by an immigration appeals court committed to independently and fairly interpreting the law, free of any fear of displeasing the Attorney General.  It’s members must be bipartisan, and appointed based on their knowledge of the law and their courage to apply it correctly. This would be a drastic change from the present group led by former Republican staffers still aiming to please their old bosses, and fleshed out with career DOJ bureaucrats who will loyally follow the party line.  I’ve always felt that choosing a former Article III judge to head an independent immigration court would immediately change the court’s priorities in the proper manner.

What role can we all play in making this happen?  At present, the most vocal advocates are immigration lawyers.  As such change would need to come from Congress, it bears noting that no elected official’s election hopes are likely to hinge on their winning the immigration lawyer vote, which amounts to probably a few thousand votes in total spread across many states and congressional districts.

However, we are all constituents of our senators and representatives. It is therefore incumbent on all of us to be advocates, and where possible, to join forces with other groups of constituents that might both share our interest in the issue and carry more sway with elected officials.

Speak out to anyone willing to listen to tell them that Article I is a non-partisan solution to the unrepairable mess that our present immigration court system has become.  In speaking to elected officials, try to find a reputable representative to endorse the concept.

Tell your own stories to make your points.  Because lawyers at heart are storytellers.

Explain that quotas and deadlines run contrary to judicial independence.

Ask for oversight hearings, to which groups such as the NAIJ, the ABA and AILA should be invited to the table.

Outside of the actual immigration judges and BIA, the following additional changes are needed.  First, ICE attorneys in the employ of DHS, i.e. the prosecutors in immigration court proceedings, must be allowed once again to offer prosecutorial discretion and to stipulate to grants in worthy cases, or to otherwise conference cases with private attorneys in an effort to streamline hearings.  I can’t think of any high volume court in which stipulations, plea agreements, and conferencing between the parties is not the common practice. Imagine what would happen to criminal courts if they were told that from now on, every jay walking ticket will require a full trial and appeal.

Prosecutorial discretion and some of these other streamlining techniques had finally become common practice in the immigration courts under the Obama administration.  It makes good sense and serves an important purpose in such an overburdened system to prioritize cases, and temporarily close out those cases that are not a priority. Most such cases involve noncitizens who are law-abiding, tax-paying individuals, some of whom have US citizen children.

Lastly, there are a large number of specially-trained asylum officers presently employed by DHS.  Some have suggested moving them as well into an independent court system in a supporting role, and providing the asylum officers with expanded jurisdiction to hear not only a broader array of asylum claims (thus removing those cases they grant from the actual judges’ dockets), but perhaps also allowing the asylum officers to adjudicate other classes of cases, such as cancellation of removal claims.

In closing, as summarized earlier, over several decades, immigration judges evolved from non-judicial adjudicators in the employ of an enforcement agency into administrative judges comprised of lawyers from a broad spectrum of ideological backgrounds who were allowed to exercise a good deal of independent judgment in a court setting.  And much of this positive development came from the “bottom up,” through the judges’ own collective efforts.

Because the final step of Article I status was never realized, actions by the Trump administration, which views independent judges as an unwanted obstacle to enforcing its own anti-immigration agenda, is attempting to roll back immigration judges to a state more closely resembling their INS special inquiry officer origins.

Although my focus has been on the present crisis under the Trump Administration, in fairness I want to state that the factors which set the stage for it built up over many years under both Democratic and Republican administrations.  Regardless of what administration follows this one, the immigration courts at best will almost certainly continue to suffer from the not-so-benign neglect that led us here, simply because immigration is such a controversial topic that problems are kicked down the road rather than resolved.

The reforms which Article I will bring will help insulate the system from unnecessary costs and delay caused by clogged dockets and unnecessary appeals prompted by a lack of trust in the system.  It will also help guarantee a clear funding stream with necessary resources not syphoned off by DOJ for other programs, and will safeguard the Circuit Courts from needless (and costly) appeals.

For all of these reasons, only an independent Article I court can sufficiently remove the threat of political manipulation, and again restore the faith in the immigration court’s fairness and impartiality that a democracy requires.

Copyright 2019 Jeffrey S. Chase. All rights reserved.

 

 

Court Rebukes Youth Policy Shift

 

fullsizeoutput_40da.jpeg

Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

***************************************************

Thanks Jeffrey my friend and colleague for telling it like it is and setting the record straight.

PWS

03-29-19

WE EX-DOJ FOLKS AREN’T THE ONLY ONES CHALLENGING WHITAKER’S QUALIFICATIONS: WASHINGTON POST EDITORIAL SAYS “Mr. Whitaker should not have been acting attorney general for a day.”

https://www.washingtonpost.com/opinions/the-still-unanswered-questions-surrounding-matthew-whitaker/2018/12/05/88f3f32e-f8c4-11e8-863c-9e2f864d47e7_story.html?utm_term=.6cb55b7e9ff5

December 5 at 6:54 PM

DID ACTING attorney general Matthew G. Whitaker examine the memo that special counsel Robert S. Mueller III released Tuesday? Has he seen the material that Mr. Mueller redacted from the document? Has he sought the advice of Justice Department ethics experts on how much he should be involved in the Russia investigation? If so, what did those experts say?

A month into Mr. Whitaker’s reign as the nation’s chief law enforcement officer, these and other questions remain unanswered. A Justice Department spokeswoman declined to answer when we put them to her on Wednesday. Also mysterious is when President Trump intends to nominate a permanent attorney general. The White House did not respond when we asked. And then there’s the still-contested question of whether Mr. Whitaker’s appointment violated the Constitution.

All of these questions matter, because Mr. Mueller’s investigation continues, and Mr. Whitaker had previously attacked the probe. His past statements alone would raise questions about his judgment and the reasoning behind Mr. Trump’s desire for him to lead the Justice Department. Though Deputy Attorney General Rod J. Rosenstein remains in charge of the Mueller investigation, it is unclear whether the acting attorney general has butted in or intends to. Senators have pushed to pass a bill that would protect Mr. Mueller from improper firing, the approval of which would send a message to Mr. Trump and Mr. Whitaker to keep their hands off. But Senate Republicans have blocked it, and Mr. Whitaker might find subtle ways of undermining the probe.

Mr. Whitaker does not belong at the top of the Justice Department, regardless of his stance on Mr. Mueller. His résumé would be thin even for an inferior post at the department. His past involvement with a company the Federal Trade Commission accused of being a scam raises further red flags. He holds crackpot views on judicial power. His primary qualification seems to be that he gets along with Mr. Trump and other White House staff, while Mr. Rosenstein, whom the Senate has vetted and who should be running the department right now, does not. There is a reason the Constitution bars the president from appointing anyone he wants at any time to top executive-branch positions: to prevent the Mr. Whitakers of the world from suddenly controlling one of the most powerful governmental organizations on the planet.

Yet, if the Trump administration’s view of the law holds, Mr. Whitaker could wield the powers of the attorney general’s office for most of the rest of Mr. Trump’s term. Senate Democrats are upset at the lack of vetting, sending a letter to the department on Tuesday noting that ethics officials only just got through certifying Mr. Whitaker’s financial disclosures, and that “the Department has not produced prior versions of Mr. Whitaker’s financial disclosures, any ethics agreements he entered into with the Department, or any other ethics-related counseling he has received.” Senate Republicans, on the other hand, have mostly insisted that the president will appoint a permanent replacement soon.

It has already been a month. Mr. Whitaker should not have been acting attorney general for a day. It is time the Senate demands a reasonable replacement.

**********************************************

Here’s my post yesterday about the letter by members of “Our Gang” of retired Immigration Judges and other DOJ employees: https://wp.me/p8eeJm-3mr

Like this editorial, I think Whitaker’s qualifications and resume wouldn’t have gotten him into the “Attorney General’s Honors Program” nor would it have gotten him to the “Interview Round” for selection as a U.S. Immigration Judge. It’s worth remembering that among the many other “trivializations of justice at Justice” during his tenure, Sessions made this supremely unqualified and unethical guy his “Chief of Staff.” It’s the “Ethically and Professionally Challenged” advising the “Morally and Legally Challenged.”

It does seem to me that former AG Bill Barr would be capable of bringing ethics and professionalism back to the DOJ. My only questions are 1) why would he want the job; and 2) why would Trump want a “real” Attorney General who knows that he works for “We the People,” not Donald Trump, the Trump family,  or their corrupt cronies and who, while staunchly conservative, is not known as a racist, misogynist, or xenophobe? Unlike Sessions, Barr also has a reputation as a capable and experienced manager who can see that justice is dispensed in a fair and unbiased manner, both of which are an anathema to guys like Sessions and Trump.

One thing I remember learning abut Bill Barr “after the fact” was that following the 1992 election (when I was in private practice), he reportedly specifically refused pressure to make some key high level career “midnight appointments” at EOIR, saying that it properly should be left for his successor in the Clinton Administration. That turned out to be Attorney General Janet Reno (who eventually appointed me to the position of BIA Chair, although that was not one of the then-existing vacancies involved).

PWS

12-06-18

HON. JEFFREY CHASE: Sessions’s Abuses Of “Certification Power” Show Why It’s Past Time To End This Unfair, Unethical, & (Probably) Unconstitutional Mockery of Justice!

https://www.jeffreyschase.com/blog/2018/3/29/the-ags-certifying-of-bia-decisions

The AG’s Certifying of BIA Decisions

The recent flurry of case certifications by Attorney General Jeff Sessions (he has certified four BIA decisions to himself since January) raises the question of the continued appropriateness of the practice.  Certification allows a political appointee who heads an enforcement agency, and is subject to the policy agenda of the administration he or she serves, absolute authority to overrule or completely rewrite the decisions of an ostensibly neutral and independent tribunal comprised of judges possessing greater subject matter expertise.

The issue has only become a matter of legitimate concern under the two most recent Republican administrations.  In her eight years as Attorney General during the Clinton Administration, Janet Reno decided a total of three cases pursuant to certification.  Under the Obama administration, AGs  Loretta Lynch and Eric Holder decided a comparable number of cases (four). The number is artificially inflated by the fact that two of those consisted of Holder vacating late-term decisions by his predecessor, Michael Mukasey.  In one of the vacated decisions, Mukasey’s reasoning had been rejected by five separate U.S. circuit courts of appeal.

In contrast, during the eight year administration of George W. Bush, his three Attorneys General issued 16 precedent decisions through the certification process.  Sessions so far seems to be on a similar pace.

One of Bush’s AGs, Alberto Gonzales, co-authored an article in 2016 defending the use of certification.1  As part of his argument, Gonzales traced the history of the practice to the BIA’s origins as an advisory-only panel in the Department of Labor in the 1920s and 30s.  When the Board was transferred to the Department of Justice in 1940, it was provided only limited decision-making authority, but was required to refer to the AG certain categories of cases, including those “in which a dissent has been recorded” or where “a question of difficulty is involved.”

I will add that the early appointees to the BIA were career bureaucrats with no prior expertise or experience in the field of immigration law.  To me, such history seems to provide no real justification for the continued practice. The BIA has for decades enjoyed the authority to independently decide a broad class of cases.  It’s members all come to the Board with far more expertise and experience in the field of immigration law than the AG possesses (although since the 2003 purge by then-AG John Ashcroft, its make-up is far more conservative).  Furthermore, whereas in the past, it was the BIA itself, and later, the Commissioner of INS, requesting certification, at present, the AG is handpicking the cases and certifying them to himself, sometimes in order to decide an issue that wasn’t part of the decision below.

Law Professor Margaret H. Taylor has noted that the practice of AG certification “might be seen as objectionable because it conflicts with a core value of our legal system: that disputes are resolved by an impartial adjudicator who has no interest in the outcome.”2  Taylor further points out that many such decisions were issued in the final days of an AG’s term, meaning that the AG “refers a controversial issue to himself and renders a decision upending agency precedent on his way out the door.”3

In an article calling for the implementation of procedural safeguards on the AG’s certification power, the author accurately notes that the practice of “agency head review” is common and non-controversial.4  However, Professor Stephen Legomsky has pointed out that the strongest arguments for agency head review – inter-decisional consistency, and agency control (by politically-accountable officials) over policy – don’t translate well to the process of deciding asylum applications, for example.5  This harks back to a point I made in an earlier article – that immigration judges (including BIA Board member) are the only judges in the otherwise enforcement-minded Department of Justice, and that the Department has never really grasped the concept of independent decision-makers existing under its jurisdiction.

Legomsky pointed out in the same article that the BIA, as an appellate authority, “can yield the same consistency as agency head review” through the issuance of en banc decisions; adding that the AG could require the Board to decide certain cases en banc.6  Interestingly, the BIA has given up the use of en banc decisions in recent years. It has not decided a precedent decision en banc even in cases of major import, or following remands from the AG or circuit courts.

Sessions’ use of certification thus far is unique in his redetermination of what the case he chooses is even about.  In Matter of Castro-Tum, the DHS appealed an immigration judge’s decision to administratively close proceedings in which an unaccompanied minor did not appear on the grounds that it had met its burden of establishing proper notice of the hearing on the minor respondent.  The BIA actually agreed with DHS and remanded the matter. However, Sessions has now turned the case into a referendum on whether any IJ or the BIA has the legal authority to administratively close any case, an argument that was never raised below. In Matter of A-B-, an immigration judge, in defiance of the BIA’s order to grant asylum on remand, refused to calendar the case for a hearing for an excessive length of time, and then disobeyed the Board’s order by denying asylum again for spurious reasons.  Somehow, Sessions decided to certify this case to decide whether anyone seeking asylum based on membership in a particular social group relating to being a victim of private criminal activity merits such relief. His ultimate decision could curtail asylum eligibility for victims of domestic violence, members of the LGBTQ community, targets of gang violence, and victims of human trafficking.

Furthermore, two of the cases certified by Sessions involve tools of docket management, i.e. administrative closure and continuances.  As immigration judges are the only judges within the Department, and as the BIA has set out uniform procedures for the proper use of these tools, how can the AG justify his need to weigh in on these issues, which clearly do not involve the need for intra-department consistency (as no other component of the department employs such tools), or for control by a politically-accountable official to ensure the coherent expression of agency policy?

Once again, the solution is to create an independent, Article I immigration court, allowing IJs to continue to decide cases with fairness and neutrality free from such policy-driven interference.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

Notes:

  1. Alberto Gonzales and Patrick Glen, Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority, 101 Iowa L.Rev. 841 (2016).
  2. Margaret H. Taylor, Midnight Agency Adjudication: Attorney General Review of Board of Immigration Appeals Decisions, 102 Iowa L. Rev. 18 (2016).
  3. Id.
  4. Laura S. Trice, Adjudication by Fiat: The Need for Procedural Safeguards in Attorney General Review of Board of Immigration Appeals Decisions, 85 N.Y.U. L. Rev. 1766 (2010).
  5. Stephen H. Legomsky, Learning to Live with Unequal Justice: Asylum and the Limits to Consistency, 60 Stan. L. Rev. 413, 458 (2007).

6.  Id.

 

fullsizeoutput_40da.jpeg

Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

BlogArchiveContact

*************************************************

Obviously, we need a truly independent Article I U.S. immigration Court as Jeffrey suggests.

Additionally, it’s well past time for the Supremes to take a close look at the constitutionality of this practice under the Due Process Clause. Those conservative leaning justices who have expressed reservations about “Chevron deference” should have major problems with this arcane procedure that allows a political official of the Executive Branch to overrule supposedly “expert” quasi-judicial officials on questions of law which the Attorney General would be decidedly less qualified to answer than an Article III judge or justice.

The whole “certification” process appears to be a facial violation of fundamental fairness and due process under the Fifth Amendment as well as a clear violation of judicial ethics by having a political official, the Attorney General, purport to act in a quasi-judicial capacity on a question or case on which he has already expressed an opinion or a clear hostility to foreign nationals as a group.

PWS

03-30-18

 

AILA URGES CONGRESS TO CREATE INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT TO REPLACE CURRENT DUE PROCESS TRAVESTY! – “In fact, instead of working to improve the system, DOJ recently announced initiatives that severely jeopardize an immigration judge’s ability to remain independent and impartial. These new policies are designed only to accelerate deportations, further eroding the integrity of the court system.”

RESOLUTION ON IMMIGRATION COURT REFORM AILA Board of Governors Winter 2018

PROPONENT: AILA Executive Committee and AILA EOIR Liaison Committee

Introduction:

Our immigration court system does not meet the standards which justice demands. Chronic and systemic problems have resulted in a severe lack of public confidence in the system’s capacity to deliver just and fair decisions in a timely manner. As a component of the Department of Justice (DOJ), EOIR has been particularly vulnerable to political pressure. Immigration judges, who are currently appointed by the Attorney General and are DOJ employees, have struggled to maintain independence in their decision making. In certain jurisdictions, the immigration court practices and adjudications have fallen far below constitutional norms. Years of disproportionately low court funding levels – as compared to other components of the immigration system such as ICE and CBP – have contributed to an ever-growing backlog of cases that is now well over 600,000.

Despite the well-documented history of structural flaws within the current immigration court system, DOJ and EOIR have failed to propose any viable plan to address these concerns. In fact, instead of working to improve the system, DOJ recently announced initiatives that severely jeopardize an immigration judge’s ability to remain independent and impartial. These new policies are designed only to accelerate deportations, further eroding the integrity of the court system.

RESOLUTION: The Board hereby reaffirms and clarifies its position on immigration court reform as follows:

In its current state, the immigration court system requires a complete structural overhaul to address several fundamental problems. AILA recommends that Congress create an independent immigration court system in the form of an Article I court, modeled after the U.S. Bankruptcy Court. Such an entity would protect and advance America’s core values of fairness and equality by safeguarding the independence and impartiality of the immigration court system.

Below is an outline of the basic features that should be included in the Article I court.

Independent System: Congress should establish an immigration court system under Article I of the Constitution, with both trial and appellate divisions, to adjudicate immigration cases.

This structural overhaul advances the immigration court’s status as a neutral arbiter, ensuring the independent functioning of the immigration judiciary.

Appellate Review:

AILA recommends that the new Article I court system provide trial level immigration courts and appellate level review, with further review to the U.S. Circuit Courts of Appeals and the U.S. Supreme Court. To prevent overburdening Article III courts, it is necessary to include an appellate court within the Article I court system.

Judicial Appointment Process:

AILA recommends the appointment of trial-level and appellate-level judges for a fixed term of no less than 10 years, with the possibility of reappointment. These judges would be appointed by the U.S. Court of Appeals for the federal circuit in which the immigration court resides. The traditional Article I judicial appointment process, which relies on Presidential appointment with Senate confirmation, would be unworkable for the immigration court system and could easily create a backlog in judicial vacancies. The U.S. Bankruptcy Court system, which uses a different appointment process than other Article I courts, is a better model for the immigration court system, due to the comparable size and the volume of cases. Like the U.S. Bankruptcy Court System, which has 352 judges, the immigration court currently has over 300 judges. Traditional Article I courts have far fewer judges than that of the U.S. Bankruptcy Court System. Therefore, AILA recommends a judicial appointment system that closely resembles that of the U.S. Bankruptcy Court.

Hiring Criteria for Judges:

Trial and appellate judges that are selected should be highly qualified, and well-trained, and should represent diverse backgrounds. In addition to ensuring racial ethnic, gender, gender identity, sexual orientation, disability, religious, and geographic diversity, AILA advocates for a recruitment and selection process that is designed to ensure that the overall corps of immigration judges is balanced between individuals with a nongovernment, private sector background, and individuals from the public sector. We believe this balance best promotes the development of the law in the nation’s interest.

****************************************

Read the complete report here:

AILA Resolution Passed 2.3.2018

The proposal that U.S. Immigration Judges be appointed by the U.S. Courts of Appeals for renewable 10 year terms is particularly salutary. The current process needs to be professionalized and de-politicized. The U.S. Courts of Appeals are the “primary professional consumers” of the work product of the U.S. Immigration Judges. The U.S. Bankruptcy Court Appointment System recommended by AILA has earned high praise for producing  a fair, impartial, merit-based, apolitical judiciary.

The current ridiculous selection and appointment process within the DOJ has two stunning deficiencies.

First, it has become an “insider-only” judiciary. Over the past three Administrations nearly 90% of the newly appointed U.S. Immigration Judges have been from government backgrounds, primarily DHS/ICE prosecutors. Outside expertise, including that gained from representing individuals in Immigration Court, clinical teaching, and working for NGOs and pro bono groups has been systematically excluded from the Immigration Court judiciary, giving it a built-in “one-sided” appearance.

Remarkably, the situation at the appellate level, the Board of Immigration Appeals (“BIA”) has been even worse! No Appellate Immigration Judge/Board Member has been appointed from “outside Government” since 2000, and both of those have long since been removed or otherwise moved on.

Indeed, even sitting (as opposed to “administrative”) U.S. Immigration Judges are seldom appointed or even interviewed for BIA vacancies. There is only one current Appellate Immigration Judge who was appointed directly from the trial court, and that individual had only a modest (approximately three years) amount of trial experience. Thus, a number of sources of what would logically be the most expert and experienced appellate judicial candidates have been systematically excluded from the appointment process at the DOJ.

Second, while the results produced are highly problematic, the DOJ hiring process for U.S. Immigration Judges has been amazingly glacial! According to the Government Accountability Office (“GAO”) the Immigration Judge appointment process during the last Administration took an average of two years! That’s longer than the Senate confirmation process for Article III Judges!

Much of the delay has reportedly been attributed to the slowness of the “background check process.” Come on man! Background checks are significant, but are essentially ministerial functions that can be speeded up at the will of the Attorney General.

It’s not like Eric Holder, Loretta Lynch, or Jeff Sessions were willing to wait two years for background clearance for their other high-level appointees in the DOJ. No, it’s simply a matter of screwed up priorities and incompetence at the highest levels of the DOJ. And, let’s not forget that most of the appointees are already working for the DHS or the DOJ. So they currently have high-level background clearances that merely have to be “updated.”

It should be “child’s play” — a “no-brainer.” When Anthony C. “Tony” Moscato was the Director and Janet Reno was the Attorney General, background checks often were completed for Immigration Judges and BIA Members in less than 60 days. And, if Tony really needed someone on board immediately, he picked up the phone, called “downtown,” and it happened. Immediately! Competence and priorities!

Our oldest son Wick has been private bar member of the U.S. Magistrate Judge Recommendation Committee for the Eastern District of Wisconsin. Their process was much more open, timely, and merit-focused than the current DOJ hiring process (whatever that might actually be) and fairly considered candidates from both inside and outside government.

Also, the slowness of the background check process unfairly prejudices “outside applicants.” Sure, it’s annoying for a “Government insider” to have to wait for clearance. But, his or her job and paycheck continue without problem during the process.

On the other hand, “outside applicants” have to make “business decisions,” — whether to take on additional employees or accept new clients; whether to commit to another year of teaching; whether to accept promotions, etc — that can be “deal breakers” as the process creeps along without much useful feedback from EOIR.

Attorney General Sessions has  claimed that he has a “secret process” for expediting appointments. But, so far, except for a “brief flurry” of appointments that were reportedly “already in  the pipeline” under Lynch, there hasn’t been much noticeable change in the timelines. Additionally, the process is often delayed because DOJ and EOIR have not planned adequately, and therefore have not acquired adequate space and equipment for new judges to actually start hearing cases.

Government bureaucrats love acronyms (so do I, in case you hadn’t noticed)! There is only one acronym that can adequately capture the current sorry state of administration of the U.S Immigration Courts under DOJ and EOIR administration: “FUBAR!”

And that’s without even getting to the all-out assault on Due Process for vulnerable respondents in the U.S. Immigration Courts being carried out by Jeff Sessions and his minions. According to my information, DOJ/EOIR “management” is pushing Immigration Judges to render twenty-minute “oral decisions;” complete “quotas” of 4-5 cases a day to get “satisfactory” ratings; and not include bond cases, administrative closure, Change of Venue, Credible Fear Reviews, or Motion to Reopen rulings in completions.

Since it takes an experienced Immigration Judge 3-4 hours to do a good job on a “fully contested” asylum decision with oral decision, that’s a “designed to fail” proposal that will undoubtedly lead to cutting of corners, numerous denials of Due Process, and remands from the U.s. courts of Appeals. But despite some disingenuous “rote references” to Due Process, it’s not even an afterthought in Sessions’s plan to turn Immigration Court into “Just Another Whistle Stop on The Deportation Railroad.”

As I say, “Bad ideas never die; they have a life of their own within the bureaucracy.” That’s why we need to get Immigration Courts out of the bureaucracy!
This Congress, which “can barely even tie its own  shoes,” so to speak, isn’t likely to get around to creating an Article I Immigration Court. But, every day that the current mal-administered and unfair  system remains within the DOJ is a Due Process and fairness disaster. That’s something that even Congress should be concerned about!   
Thanks to Attorney (and former Immigraton Judge) Sue Roy of New Jersey for  sending me the AILA Resolution.

PWS

02-07-18

 

 

 

BREAKING: IN MEMORIAM: HON. JUAN P. OSUNA, LEGENDARY IMMIGRATION FIGURE, DIES SUDDENLY — Was Chairman of BIA, Director of EOIR, High-Ranking DOJ Executive, Editor, Professor — Will Be Remembered As Kind, Gentle, Scholarly, Dedicated!

I have just learned that my friend and former colleague Juan P. Osuna tragically died suddenly of a heart attack last night. Until May of this year, Juan was the Director of EOIR. But, he was much more than that to those of us in the immigration world.

I first met Juan when he was an Editor for Interpreter Releases, the leading weekly immigration newsletter, working with one of my mentors, the late legendary Maurice A. Roberts. Juan later succeeded Maury as Editor-In-Chief and rose to a major editorial position within the West Publishing legal empire. He was serving in that position when I recommended him for a position as an Appellate Immigration Judge/Board Member of the Board of Immigration Appeals during my tenure as BIA Chair. Juan was appointed to that position by Attorney General Janet Reno in 2000.

While serving together on the BIA, Juan and I often joined forces in seeking full due process and legal protections for migrants. Sometimes, our voices were heard together in dissent. In one of those cases, Matter of J-E-, 23 I&N Dec. 291 (BIA 2002) we joined in finding that our colleagues in the majority were interpreting the Convention Against Torture (“CAT”) in an overly restrictive way. In another, Matter of Andazola, 23 I&N Dec. 219 (BIA 2003), we joined in finding that our colleagues in the majority had significantly undervalued the Immigration Judge’s careful findings of “exceptional and extremely unusual hardship” to U.S. citizen children.

Following my reassignment from the BIA to the Arlington Immigration Court, Juan became the Vice Chair and eventually the Chair of the BIA after the departure of Lori Scialabba. But, Juan’s meteoric rise through the DOJ hierarchy was by no means over. In 2009, Attorney General Eric Holder appointed Juan to the position of Deputy Assistant Attorney General for the Civil Division with responsibility for the Office of Immigration Litigation. Later, he was promoted to Associate Deputy Attorney General with responsibility for the Department’s entire “immigration portfolio.”

Not surprisingly, following the departure of EOIR Director Kevin Ohlson, Attorney General Eric Holder named Juan Director of EOIR. In that position, Juan shepherded the U.S. Immigration Courts through some of the most difficult times in EOIR history, involving astronomically increasing caseloads and resource shortages. Throughout all of it, Juan remained calm, cool, and collected.

He was a frequent public speaker and testified before Congress on a number of occasions. He was known for his honesty and “straight answers.” Indeed, in one memorable television interview, Juan confessed that the Immigration Court system was “broken.”

One of my most vivid recollections of Juan’s sensitivity and humanity was when he occasionally stopped by the Arlington Immigration Court to “find out what’s happening at the grass roots.” After lunching with or meeting the judges, Juan invariably went to the desk of each and every staff member to ask them how their jobs were going and to thank them for their dedicated service. He understood that “the ship goes nowhere without a good crew.”

Shortly before I retired, Juan called me up and said he wanted to come over for lunch. We shared some of our “old times” at the BIA, including the day I called to tell him that he was Attorney General Janet Reno’s choice for a Board Member. We also batted around some ideas for Immigration Court reform and enhancing due process.

Back in my chambers, I thought somewhat wistfully that it was too bad that we hadn’t had an opportunity to talk more since my departure from the BIA. Little did I suspect that would be the last time I saw Juan. At the time of his death, he was an Adjunct Professor at Georgetown Law, where I am also on the adjunct faculty. Ironically, Juan took over the “Refugee Law and Policy” course that I taught from 2012-14.

Juan will always be remembered as a gentleman, a scholar, and an executive who appreciated the role that “ordinary folks” — be they migrants, staff, interpreters, or guards, — play in building and sustaining a successful justice system. He will be missed as a friend and a leader in the immigration world.

My thoughts and prayers go out to Juan’s wife, Wendy Young, President of Kids In Need of Defense (“KIND”), and the rest of Juan’s family and many friends. Rest in peace, my friend, colleague, and champion of due process for all!

PWS

08-16-17

 

 

KATHERINE M. REILLY NAMED ACTING DEPUTY DIRECTOR OF EOIR — Also, My “Mini-History” Of EOIR Directors

Here’s the official DOJ press release:
FOR IMMEDIATE RELEASE
Monday, July 3, 2017

Executive Office for Immigration Review Announces New Acting Deputy Director

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Katherine H. Reilly as the agency’s Acting Deputy Director. Ms. Reilly has served as Chief Counsel of the Employee and Labor Relations Unit within EOIR’s Office of General Counsel since December 2013.

“Katherine’s varied and impressive legal experience makes her well-suited for assuming the position of Acting Deputy Director at EOIR, especially during this important time when we are mobilizing all of our resources to combat a growing caseload,” said Acting Director James McHenry. “The skills she has acquired as a manager and through her work in employee and labor relations are critical for the agency, both to meet its current challenges and to establish effective policies and procedures for the future.”

In her new capacity as Acting Deputy Director, Ms. Reilly will supervise EOIR’s components and will be responsible for assisting in leading the agency in formulating and administering policies and strategies which enhance EOIR’s effectiveness in fulfilling its core mission of adjudicating cases fairly, expeditiously, and uniformly

Katherine H. Reilly joined EOIR in December 2013 as Chief Counsel of the Employee and Labor Relations Unit within the Office of General Counsel. Prior to her tenure with EOIR, she was the Director of Legal Services for the U.S. Postal Service Office of Inspector General, managing that agency’s employee relations team, civil litigation section, and contracting division. Ms. Reilly also served as a Special Assistant U.S. Attorney for criminal prosecutions in the Northern District of Texas. She began her career with the Federal Trade Commission as an antitrust attorney and also worked for a law firm, advising corporate clients on antitrust and commercial litigation. Ms. Reilly received her Bachelor of Arts and Juris Doctor degrees from the University of Texas at Austin and earned a Master of Laws degree from the University of Melbourne, Australia. Ms. Reilly is a member of the District of Columbia and Virginia bars.

**************************************************

Congratulations, good luck and best wishes to Acting Deputy Director Reilly.

And, here’s my “Mini-History of EOIR Directors:”

EOIR MINI-HISTORY: DIRECTORS AND DEPUTY-DIRECTORS

by Paul Wickham Schmidt

U.S. Immigration Judge (Retired) & Adjunct Professor of Law, Georgetown Law

 

When EOIR was created within the DOJ in 1983, it merged the previously “stand-alone” Board of Immigration Appeals (“BIA”) with the Immigration Judges, who were previously part of the “Legacy” Immigration and Naturalization Service “INS”). David Milhollan, who was then the Chairman of the BIA also (somewhat reluctantly) became EOIR’s first Director, while retaining his position as Chair, thereby effectively merging the positions of Director and Chair.

 

Upon Milhollan’s retirement, in 1995 the positions were separated to increase the decisional independence of the BIA. For awhile, Jack Perkins, then Chief Administrative Hearing Officer, served as Acting Director. Attorney General Janet Reno named long-time DOJ Senior Executive Anthony C “Tony” Moscato, who had most recently served as the Director of the Executive Office for U.S. Attorneys, the second Director. I was appointed to the now separate position of BIA Chair. Moscato and I had significant roles in the 1983 creation of EOIR.

 

Moscato, noting the growth of EOIR’s functions, recommended the creation of the position of EOIR Deputy Director. Attorney General Janet Reno appointed Kevin D. Rooney as the first Deputy Director. Rooney had served as the Assistant Attorney General for Administration during several Administrations and was in private practice at the time of his appointment.

 

Eventually, Moscato sought and received appointment as a BIA Member. (Thereby going from my “immediate supervisor” to my “direct subordinate,” although these terms make little sense in the EOIR context because neither the Director nor the Chairman has authority to direct the decision-making of Board Members). Rooney succeeded Moscato as the third Director. Then EOIR General Counsel Peg Philbin became the Deputy Director.

 

Philbin served as Acting Director while Rooney was the Acting Commissioner of the INS for a few months during the Bush Administration (uh, talk about conflicts and perceptions, but that really wasn’t a strong point for the Bush II Administration either), but she eventually left EOIR to become a Senior Executive at the State Department. Then Board Member Kevin Ohlson replaced her as Deputy Director. Upon Rooney’s retirement, Deputy Director Ohlson succeeded him as the fourth Director. Ohlson had also held a number of Senior Executive positions within the DOJ prior to his brief stint as a Board Member.

 

When Eric Holder became Attorney General, Ohlson left EOIR to become his Chief of Staff. After some time, during which Judge Thomas Snow served as Acting Director, Juan P. Osuna, then a Deputy Assistant Attorney General in the Civil Division, became the fifth Director. Osuna had also been BIA Chair, BIA Vice Chair, and a Board Member. Ana M. Kocur, then a BIA staff supervisor, was selected to be Osuna’s Deputy.

 

Upon the departure of Osuna and Kocur in May 2017, both the top executive positions in EOIR became vacant. Interestingly, while two former BIA Chairs, Milhollan and Osuna, became Directors, EOIR has never had a Director who had served as a U.S. Immigration Judge at the trial level of the system, although the Immigration Judge program is by far the largest “adjudicating component” of EOIR.

 

Also, no former Immigration Judge has ever held the Deputy Director position. However, as noted above, one current Immigration Judge, Judge Thomas Snow, held the position of Acting Director during the interim between Ohlson’s departure and Osuna’s appointment. Snow, a former top executive in the DOJ’s Criminal Division before his appointment to the bench, was well regarded and well liked by the sitting Immigration Judges. Reportedly, he was offered the position on a permanent basis, but turned it down to return to the Arlington Immigration Court bench where he remains (thus having “outlasted” Osuna).

 

The Director is an unusual position in that as a non-judicial official, he or she is specifically excluded from having any substantive role in EOIR’s sole function: quasi-judicial adjudication. In a future, better-functioning, independent U.S. Immigration Court system, the Chief Appellate Judge (now BIA Chair) would resume the formal role as administrative head of the judicial system, along the lines of the relationship between the Chief Justice and the rest of the Article III Judiciary. The “Director” position would become the “Executive Director of the Administrative Office” subordinate to the Chief Appellate Judge.

 

With the elimination of the inherently political role of the DOJ in the U.S. Immigration Court system, there no longer would be a need to for the largely fictional perception that the “Director” serves as a “buffer” between the “adjudicating components” and the political and litigation officials at the DOJ. The current problems of the U.S. Immigration Court well illustrate the insurmountable difficulties of attempting to run one of the nation’s largest and most important court systems as an “agency” of a political department. Even if the DOJ had the will to allow the Immigration Courts to function independently, it lacks the competence and expertise in court administration to successfully support such a system.

 

The only real question is when will Congress finally face reality and create a truly independent and properly functioning U.S. Immigration court system?

 

PWS

07-06-17

 

 

 

2D CIR Raps BIA, USIJ For Applying Wrong Tests For Agfel —- NY 5th Degree Sale Of A Controlled Substance Not A “Drug Trafficking Crime” — Respondent Eligible For Cancellation — KENNARD GARVIN HARBIN v. JEFFERSON SESSIONS III

http://caselaw.findlaw.com/us-2nd-circuit/1865217.html

“We hold that NYPL § 220.31 defines a single crime and is therefore an “indivisible” statute. Accordingly, the agency should have applied the so-called “categorical approach,” which looks to the statutory definition of the offense of conviction, rather than the particulars of an individual’s behavior, to determine whether a prior conviction constitutes an aggravated felony. See Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015). Now applying the categorical approach, we conclude that Harbin’s conviction under the NYPL § 220.31 did not constitute a commission of an aggravated felony. Harbin’s § 220.31 conviction therefore did not bar him from seeking cancellation of removal and asylum.”

PANEL: Circuit Judges CABRANES, POOLER, and PARKER.

OPINION BY:  Judge Pooler.

*************************************************

When will they ever learn, when will they ever learn? Attempts by U.S. Immigration Judges and the BIA to “blow by” proper application of “divisibility analysis” and the “categorical approach” in an effort to maximize removals under the “aggravated felony” provisions of the INA continue to draw criticism from higher court judges. However, they probably are “less career threatening” with respect to the BIA’s relationship to their political bosses at the DOJ. Whoever heard of a due process court system being owned and operated by the chief prosecutor? And, nobody can doubt that Attorney General Jeff Sessions sees himself as the Chief Prosecutor of migrants in the United States. But, to be fair, the last Attorney General to actually attempt to let the BIA function as an an independent quasi-judicial body was the late Janet Reno. And, that was 17 years ago.

PWS

06-23-17