BREAKING: IN MEMORIUM: 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

 

 

FLASH: AILA WITHDRAWS SUPPORT FOR MORE U.S. IMMIGRATION JUDGES & EOIR FUNDING! — UNDER TRUMP/SESSIONS REGIME “increased judges will not necessarily promote due process and fairness for those appearing in proceedings!”

“From: Greg Chen [mailto:GChen@aila.org]
Sent: Wednesday, July 05, 2017 10:06 AM
To: AILA Interior Enforcement List
Cc: AILA Interior Enforcement List; Kate Voigt; Laura Lynch; Kerri Talbot
Subject: [interiorenforcement] AILA shifted position on IJ funding – CJS approps

Everyone,

AILA’s board just voted to change our position on the funding of immigration judges: in brief, AILA will no longer be supporting increased funding for IJs.  The change in position was motivated by two principal concerns: 1) additional funding for judges will enable this administration to deport more people more rapidly; and 2) increased judges will not necessarily promote due process and fairness for those appearing in proceedings, esp under the current administration.

We will convey this to key friends on the Hill, but we haven’t decided how actively we plan to push this.

Here’s what the House FY18 CJS bill includes, according to the summary posted by House approps:

Executive Office for Immigration Review (EOIR) – Funding for the EOIR is increased by $64.5 million, for a total of $505 million. This increase will provide for 65 additional immigration judge teams to process immigration reviews more quickly, and reduce the backlog of pending cases.

Gregory Z. Chen, Esq.
Director of Government Relations
Direct: 202-507-7615 I Cell: 202.716-5818 I Email: gchen@aila.org American Immigration Lawyers Association
Main: 202.507.7600 I Fax: 202.783.7853 I www.aila.org<http://www.aila.org/>
1331 G Street, NW, Suite 300, Washington, DC 20005″

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

I can understand the sentiment that brought this about. I’m not sure, however, that this isn’t an exercise in “kicking the cat.” The real problem here is lack of independence and the highly inappropriate, facially unethical, role of the DOJ, which Congress created, allowed to fester, and failed to date to fix. And the type of misguided GOP agenda behind an atrocity like H.R. 391 also doesn’t help.

Interesting that the last several Administrations have mismanaged the Immigration Courts to the point where they appear to be doing exactly the opposite of their single mission: guaranteeing fairness and due process for all!

With this particular Congress and Administration, AILA’s change in position probably won’t mean much. Only White Nationalist and restrictionist groups seem to have any influence.

Sadly, years of hard-won progress in establishing due process in the Immigration Court system have now been squandered. EOIR and the Immigration Courts have returned to the mess that they were before EOIR was created.

Bad time to be seeking justice in America! Thanks to my former Georgetown Law Refugee Law & Policy student Shaw Drake for sending me this item!

PWS

07-27-17

 

 

 

BETH FERTIG AT NPR: “ADR” Moves Into High Gear, Devastating U.S. Immigration Courts, As Half Of NY Immigration Court “Goes Dark” — U.S. Immigration Judges Become Adjuncts Of DHS Border Enforcement Program — Dockets At Interior Courts “Orbited Into Never-Never Land!”

ADR = “Aimless Docket Reshuffling”

http://www.wnyc.org/story/even-more-immigration-judges-are-reassigned-trumps-crackdown-border/

Beth reports for WNYC/NPR:

“In its crackdown on illegal immigration, the Trump administration is moving an increasing number of immigration judges closer to the border with Mexico. The practice is so widespread that half of New York City’s 30 immigration judges have been temporarily reassigned for two-to-four weeks at a time between early April and July.

The judges have been sent to hear deportation cases in Louisiana, California, New Mexico and Texas, along with Elizabeth, New Jersey, where there’s a detention center. In June, WNYC reported that at least eight of New York City’s immigration judges have been temporarily moved to Texas and Louisiana since March. New information obtained from a Freedom of Information Act request revealed the number to be much higher.

All this reshuffling causes cases to get delayed for months. And New York City’s immigration court already has a backlog of more than 80,000 cases. People wait an average of more than two years go to court to fight against deportation. Some might welcome a prolonged wait. But immigration lawyer Edain Butterfield said her clients get anxious because they’re ready to make their case, when they suddenly learn their judge has had to postpone.

“They don’t know if their judge is going to stay on their case,” she said. “They sometimes have to get new documents, ask for another day off from work, ask their family to take another day off from work.”

David Wilkins, an attorney with Central American Legal Assistance in Brooklyn, said he’s representing a woman seeking asylum whose hearing was recently postponed almost a year — until the summer of 2018. He said she left her children in her home country back in 2012 because of domestic abuse. “It’s extremely difficult for her,” he said. “She’s been separated from her family for so long to sort of live with the constant uncertainty of not knowing what’s going to happen with her immigration proceeding.”

Judges from New York City aren’t the only ones being moved. According to the latest data obtained by WNYC, 128 of the nation’s approximately 325 immigration judges have been shuffled to other locations between early April and the middle of July. Many of those judges come from Los Angeles, Chicago and San Francisco. These assignments, known as details, last for two or four weeks. Some judges have been shifted around multiple times.

The data does not include all judges assigned to hear cases in other locations by video teleconference. A couple of judges in New York City were seeing cases by video at a Texas detention center in May and June.

The reassignments are expected to continue until early 2018, but the Executive Office for Immigration Review, which runs the immigration courts, would not reveal the schedule beyond July.

In April, Attorney General Jeff Sessions announced that all adults crossing the Mexican border would be sent to detention. To support the mission, he said, the Department of Justice had “already surged 25 immigration judges to detention centers along the border.”

Dana Leigh Marks, president of the National Association of Immigration Judges, said her union remains very concerned about the situation.

“The temporary assignment of judges to border courts creates increasing backlogs in the dockets they leave behind in their home courts and may not be conducive to the overall reduction of our burgeoning caseload.”

Nationally, the backlog has surged to more than 600,000 cases and observers believe that number is growing partly because of the Trump administration’s immigration policies.

Moving judges south might sound counterintuitive because illegal border crossings have actually dropped since President Trump took office. But Bryan Johnson, an immigration lawyer on Long Island, has a theory about why more judges are needed down south.

“The people that are deported will be deported in less time,” he explained. “And that is the message they want to send people in the home countries from where the migrants come from.”

There is no guaranteed right to counsel in immigration court, and experts said there are few low-cost immigration attorneys near the border — making it even easier to swiftly deport someone because they are not likely to have representation.

The Executive Office for Immigration Review did not respond to a request for comment. However, the agency has said it is hiring more judges.”

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Get the accompanying audio/video report at the link.

David Wilkins from the Central American Legal Defense Center in Brooklyn, quoted in Beth’s article, is one of my former Georgetown Law Refugee Law & Policy students, a former CALS Asylum Clinic participant, and a former Legal Intern at the Arlington Immigration Court. David was also an Immigrant Justice Crops fellow. He is a “charter member” of the “New Due Process Army.” Congratulations David, we’re all proud of what you are doing!

Attorney Bryan Johnson simply restates the obvious. Under A.G. Jeff “Gonzo Apocalypto” Sessions, the U.S. Immigration Courts are once again being used as an arm of DHS Enforcement rather than a protector and dispenser of constitutional due process. Nobody in their right mind seriously thinks that Sessions is “surging” Immigration Judges to the border to grant more bonds, reverse more “credible fear” and “reasonable fear” denials, or grant more asylum, withholding of removal, or relief under the CAT.

No, the “surge” program is clearly all about detention, coercion, denial, deportation and sending a “don’t come, we don’t want you” message to folks living in fear and danger in countries of the Northern Triangle of Central America. In other words, you might as well cooperate with, support, and/or join the gangs and narco-traffickers — the U.S. has absolutely no intention of saving your life! Nice message!

Don’t be too surprised when multinational gangs and narco-traffickers eventually seize political power in Central America (they have already infiltrated or compromised many government functions). And, we will have sent away the very folks who might have helped us stem the tide. At the same time, we are destroying the last vestiges of due process in the U.S. Immigration Courts, leaving hundreds of thousands of cases and lives “up in the air” and our justice system without a fair and effective mechanism for deciding and reviewing immigration cases. At some point, somebody is going to have to fix this mess. But, you can be sure it won’t be the Trump (“We Don’t Take Responsibility For Nothin'”) Administration.

PWS

07-24-17

 

MY MOST RECENT SPEECHES: “MY LIFE & TIMES” — CATHOLIC LEGAL IMMIGRATION NETWORK (“CLINIC”), July 18, 2017; “JOIN THE ‘NEW DUE PROCESS ARMY’ — FIGHT FOR DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS” — HUMAN RIGHTS FIRST, JULY 19, 2017

On Tuesday July 18, 2107, I gave a luncheon address to interns and staff at the Catholic Legal Immigration Network (“CLINIC”) in Silver Spring, MD. My speech entitled “My Life & Times” is at this link:

MY LIFE

On Wednesday, July 19, 2017, I delivered the a luncheon address that was part of the Frankel Lecture Series at Human Rights First in Washington, D.C. & New York, NY (by televideo). My speech entitled “Join The ‘New Due Process Army’ — Fight For Due Process In The United States Immigration Courts” is at this link:

AMERICA’S REAL IMMIGRATION CRISIS

Both speeches are also reproduced in the left menu of immigrationcourtiside.com.

 

WASHPOST OUTLOOK — BRITINI DANIELLE: “Sally Hemings wasn’t Thomas Jefferson’s mistress. She was his property!” — When Will We Come To Grips With The Reality That The America We Know And Love Literally Was Built On The Backs Of Enslaved Blacks?

https://www.washingtonpost.com/outlook/sally-hemings-wasnt-thomas-jeffersons-mistress-she-was-his-property/2017/07/06/db5844d4-625d-11e7-8adc-fea80e32bf47_story.html

Danielle writes:

“Archaeologists at Thomas Jefferson’s Virginia plantation, Monticello, are unearthing the room where Sally Hemings is believed to have lived, allowing for a new way to tell the story of the enslaved people who served our third president. The excavation has once again reminded us that 241 years after the United States was founded, many Americans still don’t know how to reconcile one of our nation’s original sins with the story of its Founding Fathers.

Just before the Fourth of July, NBC News ran a feature on the room, setting off a spate of coverage about the dig. Many of these stories described Hemings, the mother of six children with Jefferson, as the former president’s “mistress.” The Inquisitr, the Daily Mail, AOL and Cox Media Group all used the word (though Cox later updated its wording). So did an NBC News tweet that drew scathing criticism, though its story accurately called her “the enslaved woman who, historians believe, gave birth to six of Jefferson’s children.” The Washington Post also used “mistress” in an article about Hemings’s room in February.

Language like that elides the true nature of their relationship, which is believed to have begun when Hemings, then 14 years old, accompanied Jefferson’s daughter to live with Jefferson, then 44, in Paris. She wasn’t Jefferson’s mistress; she was his property. And he raped her.

Such revisionist history about slavery is, unfortunately, still quite common. In 2015, Texas rolled out what many saw as a “whitewashed ” version of its social studies curriculum that referred to enslaved Africans as “immigrants” and “workers” and minimized slavery’s impact on the Civil War. One concerned parent spoke out, forcing a textbook publisher to revise some of the teaching materials.

In a speech at the Democratic National Convention last year, Michelle Obama reminded Americans that no less a symbol of our government than the White House was built by those in bondage. In response, then-Fox News host Bill O’Reilly offered a softer, gentler take: Those enslaved workers were “well fed and had decent lodgings provided by the government,” he said. That they had no choice in their food, lodging or whether they even wanted to do the backbreaking work of building Washington by hand was nowhere to be found in O’Reilly’s version.

. . . .

Romanticizing Hemings and Jefferson’s so-called relationship minimizes the deadly imbalance of power that black people suffered under before the Civil War. It also obscures our collective history as a nation that moved from being built on the blood, bones and backs of enslaved African Americans and indigenous people, to being the imperfect, hopeful and yet still unequal country we are today.”

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

Four of our first five U.S. Presidents had no visible means of support other than the free labor provided by enslaved African Americans. In other words, they were incapable of, or chose not to, make an “honest” living, essentially freeloading off of “welfare” provided by their enslaved workers.

And it wasn’t just the south. Much of the prosperity of the New England merchant class rested directly or indirectly on the profitable slave trade or the agricultural products produced by slave labor in the south. As pointed out in the article, enslaved black workers literally built our nation’s capitol.

Nor were religious institutions absolved of the taint. Georgetown University (where I teach at the Law School), a Jesuit institution, recently had to come to grips with the fact that it sustained itself by literally selling black families “down the river” where many of them were permanently separated.

Even after the Civil War, which, contrary to apologist historians, was driven almost entirely by slavery and keeping blacks from sharing in democracy, the white power structure in both the north and the south cooperated in undermining the 14th Amendment for more than a century. Today, politicians like Donald Trump, Jeff Sessions, and Kris Kobach, assisted by their “groupies” like Steve Bannon and Stephen Miller, seek to turn back the clock on our nation’s hard-earned progress toward racial equality.

Why as a nation do we have so much difficulty acknowledging the immoral conduct of many of our founders and the overwhelming debt we owe to those black Americans whose skills, perseverance, and hard work literally built America?

PWS

07-07-17

 

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

 

 

 

SURPRISE: PLATO LIVES! — Philosophers Often Turn Out To Be Kings (& Queens) Of Business & Professions!

https://www.washingtonpost.com/local/education/for-philosophy-majors-the-question-after-graduation-is-what-next/2017/06/20/aa7fae2a-46f0-11e7-98cd-af64b4fe2dfc_story.html?utm_term=.db0db771aaec&wpisrc=nl_buzz&wpmm=1

From the Washington Post:

“Philosophy majors spend their college years pondering deep questions, such as: What is the meaning of life? Do we have free will? And what job am I going to get with this degree after graduation?

It turns out the last question isn’t hard to answer: Just about anything.

The idea that philosophy majors aren’t prepared for professional careers “is a little bit of a myth, to be honest,” said Thomas Holden, chair of the philosophy department at the University of California at Santa Barbara. “Philosophy is not about sages sitting on mountaintops speculating about the cosmos.”

Graduates in philosophy inhabit Wall Street corner offices, roam the oak-paneled halls of the Supreme Court and reign over boardrooms in Silicon Valley.

Interest in the major has risen steadily in the past three decades. Although totals have dipped slightly in recent years, federal education data shows the number of students who received bachelor’s degrees in philosophy has doubled since 1987, peaking at 7,926 graduates in 2013.”

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Gee whiz! Who would ever have thought that teaching sound reasoning, critical analysis, effective argument, skillful defense of ideas, and creative problem solving skills could be useful in the “real” world? Certainly not the many politicos and supposed educational and business wonks who trash the liberal arts and glorify “trade school” education for everyone.

The world is a rapidly changing place.  And, folks who learn how to think, solve problems, and maintain a big picture perspective usually have the flexibility to “reinvent” themselves as necessary, even as their technical knowledge and skills become outdated or obsolete. And, intellectual curiosity and engagement are things that help outside the workplace or when things at work get rough. Critical thinking and creative problem solving are just as important for good mechanics, carpenters, plumbers, and brick masons as they are for chief execs, scientists, doctors, and lawyers.

Yesterday, I dropped by to see my good friend and colleague (and contributor to immigrationcourtside.com, http://immigrationcourtside.com/2017/06/19/the-hill-professor-andy-schoenholtz-of-georgetown-law-on-why-americans-should-be-grateful-to-the-9th-circuit-for-upholding-the-rule-of-law-against-executive-overreach/)  at Georgetown Law, Professor Andy Schoenholtz. I caught him “red-handed” perusing a tome of Immanuel Kant. He tried to cover up by claiming that he was just “cleaning out his bookcase.” But, of course, we know the truth (to the extent, of course, that absolute truth can ever be “known’).

No wonder Schoenholtz has accomplished so much in the real world as well as the academic world!

PWS

06-21-17

 

 

 

EOIR INVESTS ELEVEN NEW U.S. IMMIGRATION JUDGES — PRIVATE SECTOR TOTALLY SHUT OUT!

Here are the bios of the new U.S. Immigration Judges:

IJInvestiture06162017

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This brings the total number of sitting U.S. Immigration Judges to 326. Congratulations to the new Judges, and please don’t forget the due process mission of the U.S. Immigration Courts!

Unfortunately, however, this continues the trend of creating a one-sided U.S. Immigration Court which basically has excluded from the 21st Century Immigration Judiciary those who gained all or most of their experience representing respondents, teaching, or writing in the public sector. It’s not particularly surprising that Attorney General Jeff Sessions, who has expressed a strong enforcement bias, would prefer to “go to the Government well” for all or most of his selections.

However, the real problem here is with the DOJ during the Obama Administration.  With a chance to fill perhaps a record number of U.S. Immigration Judge positions over eight years, and to create an evenly balanced, diverse Immigration Judiciary in the process, they not only turned the hiring process in to a ridiculous two-year average cycle, but also selected 88% of the candidates from Government backgrounds.

Why would someone take two years for a selection process that selects from a limited inside pool anyway? And, why would you lead outside applicants to take the time to apply, believing they had a fair chance of competing, when the process obviously was “fixed” in favor of insiders? Sort of reminds me of the discussion of the labor certification recruitment process that we recently had in my Immigration Law & Policy Class at Georgetown Law!

Just more ways in which the “Due Process Vision” of the U.S. Immigration Courts has basically been trashed by the last three Administrations!

PWS

06-19-17

THE HILL: Professor Andy Schoenholtz Of Georgetown Law On Why Americans Should Be Grateful To The 9th Circuit For Upholding The Rule Of Law Against Executive Overreach!

 

http://thehill.com/blogs/pundits-blog/civil-rights/337955-9th-circuit-on-travel-ban-president-must-respect-congress

Professor Schoenholtz concludes:

“In fact, had the president focused on asking America’s civil servants to build on the progress achieved since 9/11 and try to find new ways of identifying security threats among those who seek visas, that work would have been accomplished by now, according to the schedule set by both the first and second EO’s.

If the Supreme Court decides at some point to hear a case regarding the EO, they will now be asked to consider not only whether the President has violated the Establishment Clause but also whether he has exceeded his statutory authority. As determined by the Supreme Court in the late nineteenth century, Congress has the constitutional authority to establish the immigration laws.

It has done just that by statute. The president has broad authority to implement that statutory system, but does the president have the power to stop admitting immigrants from six countries? From sixty? From all countries? Where does this end, and where would that leave Congress and the equilibrium established by the Constitution? We should thank the Ninth Circuit for raising that issue clearly and thoughtfully.

Andrew I. Schoenholtz is a Professor from Practice at Georgetown Law and the author, with Professors Jaya Ramji-Nogales and Philip G. Schrag, of “Lives in the Balance: Asylum Adjudication by the Department of Homeland Security.”

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Read Andy’s entire analysis at the link.

I’m still somewhat skeptical that the Supremes will take this case given the problems caused by the President’s out of court statements and tweets. Future Chief Executives likely will be more “Presidential” and act with more prudence and thoughtfulness. So, why take a case that hopefully will turn out to be more or less “sui generus?” If I were the Supremes, I would let the lower courts sort through this mess and make a complete record before approaching the legal questions. But, we’ll see.  Very soon!

PWS

06-19-17

NICHOLAS KULISH IN THE NYT: TORTURED IN VENEZUELA, HANDCUFFED BY ICE @ THE MIAMI ASYLUM OFFICE! — DHS Continues To Abuse Legal Authority, Clog Backlogged U.S. Immigration Courts! My Quote: “Why clog an already clogged court docket with a case that looks like a slam dunk?”

https://www.nytimes.com/2017/06/13/us/asylum-torture-venezuela.html

Nicholas reports:

“Marco Coello, then a skinny 18-year-old high school student, was grabbed by plainclothes agents of the Venezuelan security services as he joined a 2014 demonstration against the government in Caracas.

They put a gun to his head. They attacked him with their feet, a golf club, a fire extinguisher. They tortured him with electric shocks. Then Mr. Coello was jailed for several months, and shortly after his release, he fled to the United States.

Human Rights Watch extensively documented his case in a report that year. The State Department included him in its own human rights report on Venezuela in 2015. With such an extensive paper trail of mistreatment in his home country, his lawyer, Elizabeth Blandon, expected a straightforward asylum interview when Mr. Coello appeared at an immigration office this April in Miami.

“I had this very naïve idea that we were going to walk in there and the officer was going to say, ‘It’s an honor to meet you,’” said Ms. Blandon, an immigration law expert in Weston, Fla.

Instead, he was arrested and taken to a detention facility on the edge of the Everglades. He was now a candidate for deportation. “Every time they would move me around, I would fear that they were going to take me to deport me,” said Mr. Coello, now 22.

Mr. Coello’s case drew extensive media coverage in both Miami and Caracas and, eventually, the intervention of Senator Marco Rubio of Florida. The senator helped secure Mr. Coello’s release, though he could still be deported.

The case may have been a sign of just how far the government is willing to go to carry out President Trump’s crackdown on illegal immigration.

“It’s very unusual — almost unprecedented — that ICE would arrest an asylum applicant who is at a U.S.C.I.S. office waiting for their asylum interview,” said Stephen Yale-Loehr, an immigration law professor at Cornell Law School.”

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

Just because arresting individuals believed to be in the U.S. without authorization is legal doesn’t mean that it’s not stupid or wasteful in many cases. Cases like this belong in the Asylum Office.

In a well-functioning system, Mr. Coello likely would have been granted asylum following his interview. Instead, he’s on an already overcrowded U.S. Immigration Court docket with a merits hearing scheduled for approximately one year from now.

What does the U.S. gain from these types of wasteful enforcement actions? What message are we sending to Mr. Coello and others who will eventually become full members of our society? What kind of messages are we sending to Venezuela and those attempting to escape from some of the world’s most brutal governments?

Read Nicholas’s complete report, which contains more quotations from me and others, at the above link.

PWS

06-13-17

THE ATLANTIC: Priscilla Alvarez Analyzes The Trump/GOP Push For “Merit-Based” Immigration!

https://www.theatlantic.com/politics/archive/2017/03/trump-cotton-perdue-merit-based-immigration-system/518985/

Alvarez writes:

“President Trump’s proposal to shift towards a “merit-based” immigration system would upend an approach that has existed for half a century.

Since the 1960s, the United States’ immigration system has largely based entry on family ties, giving preference to those with relatives who are citizens. But in his first address to a joint session of Congress in February, Donald Trump proposed moving away from that policy, focusing instead on an immigration system that would prioritize high-skilled immigrants.

Trump and his advisors have argued that the current levels of immigration harm American workers by lowering wages and preventing assimilation. A merit-based system, restrictionist advocates believe, would help lower immigration rates and ensure that the immigrants who do come are high-skilled workers who never need public assistance. “The current, outdated system depresses wages for our poorest workers, and puts great pressure on taxpayers,” Trump said in his speech to Congress.

While the president has yet to offer details, a merit-based system would pose its own challenges to economic prosperity. Critics believe that  a merit-based system that prioritizes high-skilled workers could hurt the economy by harming industries that rely on low-skill immigrant labor, and that fears that immigrants are not assimilating or are overly reliant on the social safety net are overblown.

The first example of the U.S. establishing qualifications for new immigrants was in 1917, when the government imposed a literacy test on those seeking to enter the country. In the 1960s, Congress lifted restrictions that heavily curtailed immigration from non-European nations, and reshaped the immigration system toward prioritizing admission of close relatives of immigrants already living in the United States. The overwhelming majority of immigrants are now admitted through that family-preference system, which significantly changed the ethnic composition of U.S. immigrant population by admitting more Latin American and Asian immigrants.

In 2015, for example, of the more than one million legal permanent residents admitted, “44 percent were immediate relatives of U.S. citizens, [and] 20 percent entered through a family-sponsored preference,” according to the Migration Policy Institute, a nonpartisan think tank. Only 14 percent of those admitted came through a job-based preference. The “merit-based” immigration system, in theory, would increase the latter figure, as it would prioritize those who are highly educated and therefore considered more employable.

Such a policy would likely limit the supply of low-skilled workers, and might allow the administration to filter which immigrants it chooses to admit. And a merit-based immigration system could also help realize a longtime conservative policy goal—a reduction in the number of immigrants admitted overall.

Some Republican lawmakers have already pushed for legislation that would limit legal immigration. Last month, Republican Senators Tom Cotton and David Perdue introduced legislation that would cut the number of immigrants legally admitted to the United States in half. It would do so in part by limiting the number of family members immigrants can sponsor for citizenship, a policy long sought by immigration restrictionist groups.

Dan Stein, the president of the Federation for American Immigration Reform, which supports curtailing immigration, said a merit-based approach could reduce the flow of immigrants coming into the United States. “The merit-system is also a surrogate for moving away from a system that the country doesn’t really get to control and regulate how many come in every year and who they are because of chain migration, the family-preference system,” Stein said, adding that a points system would be one part of the whole.

Nevertheless, assessing “merit” is difficult. A system that deliberately excluded low-skilled workers might raise labor costs in industries that rely on those workers, increasing prices for consumers but boosting wages for workers.”

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

Read the full article at the link.

Third-year law student Saurabh Gupta introduced this article as part of our class discussion of “Family-Based Immigration” during my Immigration Law and Policy class at Georgetown Law last week. Needless to say, it provoked a lively and informative discussion, with students exploring the arguments on both sides as well of the practicalities of running such a system on a larger scale.

PWS

06-10-17

HOYA LAW REDUX — IMMIGRATION LAW & POLICY — Summer 2017 — Read “Welcome To the Breakfast Club: Introduction To Immigration Law & Policy, Georgetown Law Summer 2017 Edition”

I walked into Room 5020 at Hotung Hall. Windows, daylight! Wow! I felt almost like I had achieved tenure! After a two-year hiatus, I was back as an Adjunct Professor of Law at Georgetown. This time, I was off of the “night shift” and out of the windowless subterranian classroom in McDonough Hall. I think McDonough was where, as a newly hired Attorney Adviser at the Board of Immigration Appeals,  I took “Immigration Law & Procedure” in 1974 from the late Charles Gordon, then General Counsel of the INS and Adjunct Professor. Perhaps in the same classroom.

The students filed in. The energy and brain waves (certainly not mine) zinged around the room. A number of PhDs, a Chemist, a Patent Examiner, a licensed Social Worker, someone with a “big law” job already lined up — some working on second, or even third careers, others just getting started. Bright, curious, engaged. They had already accomplished impressive things, but wanted to achieve more. No “traditional immigration junkies,” but all had some personal connection with immigration and a desire to learn more.

And, they were highly motivated. Everyone did the first assignment and reported on what they had learned. As a teacher, doesn’t get much better.

I wasn’t sure I could make this happen. Although retired from the court, I’m actually more or less “booked” for various family, professional, and educational events through next October! So, when Georgetown contacted me, I initially was hesitant. But, with the help of Tiffany Joly, Director of LLM Academic Services and the incomparable Sarah Kinney, Assistant Director of LLM Academic Services, we were able to “compress” the summer semester into an intensive five weeks. I have always been impressed with the helpfulness and skill of the Georgetown Law administrators. Everyone knows exactly what they are doing, and they always patiently explain the process to, and meet the needs of, Adjunct Professors. It makes Georgetown a great place to teach. I’m also glad that my good friend, Professor Andy Schoenholtz, a Director of the CALS Asylum Clinic at Georgetown, brought me into the “Georgetown family” in 2012 and helped me return this summer.

Here’s the text of my “introductory lecture.” Although some of you have read earlier versions, there is some “new stuff” in here.

Welcome To The Breakfast Club-GeorgetownILP2017

PWS

05-31-17

 

 

 

Here’s My Keynote Address From Today’s FBA Immigration Law Conference In Denver, CO!

LIFE AT EOIR – PAST, PRESENT, AND FUTURE

By

Paul Wickham Schmidt

Retired U.S. Immigration Judge

Keynote Address

2017 Immigration Law Conference

Denver, CO

May 12, 2017

INTRODUCTION

Good afternoon. Thank you so much for inviting me. Its an honor to appear before you.

Funny thing happened to me on the way to this conference. When I arrived at the airport yesterday afternoon, my good friend Judge Lory Rosenberg rushed up to me at baggage claim and said “Oh, I see we’re having you for lunch!” I said “What?” She said “You’re our keynote speaker at lunch tomorrow.” I scoffed at the idea, saying I might be on the after lunch panel with her, but that was it. However, when I actually took the time to look at the program I saw that certainly not for the first time, Lory was right. Unbeknownst to me I was, in fact, listed as the keynote speaker.

I’ve composed this speech on my I-pad, which I’m using as a teleprompter. As you know, those of us who worked at EOIR aren’t used to this new-fangled technology. So, please bear with me.

As we get started, I’d like all of you to join me in recognizing my friend and former colleague Judge Larry Burman for his tireless efforts to make the ILS the best section in the FBA. In the later years, I tried very hard to avoid being at court at nights, weekends, and holidays. But, occasionally I had to go pick up my cellphone or something else I had inadvertently left in my office. And, who should be there but Larry. And he was always working on a FBA project, the Green Card, Conference Planning, recruiting new members, etc. So, please join me in a round of applause for Judge Burman for all he has done for promoting productive dialogue and improving the practice of immigration law.

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

My speech is entitled: Life At EOIR, Past Present, and Future.I will start by introducing myself to you and telling you a bit about how my life and career have been intertwined with EOIR. Then I will briefly address five things: the court systems vision, the judges role, my judicial philosophy, what needs to be done to reclaim the due process vision of the Immigration Courts, and how you can get involved.

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 Generals Honors Program. Admittedly, however, the BIAs Executive Assistant culled my resume from the Honors Program reject pile.One of my staff colleagues at that time, now retired U.S Immigration Judge Joan Churchill, is right here in the audience.

At that time, before the creation of the Executive Office for Immigration Review – “EOIR” for you Winnie the Pooh fans — the Board had only five members and nine staff attorneys, as compared to todays cast of thousands. Among other things, I worked on the famous, or infamous, John Lennon case, which eventually was reversed by the Second Circuit in an opinion by the late Chief Judge Irving Kaufman.[1] As an interesting historical footnote, that case was argued in the Circuit by then Special Assistant U.S. Attorney Mary Maguire Dunne, who went on to become a distinguished Member of the BIA and one of my Vice Chairs during my tenure as Chairman.

I also shared an office with my good friend, the late Lauri Steven Filppu, who later became a Deputy Director of the Office of Immigration Litigation (OIL) in the DOJs Civil Division and subsequently served with me on the BIA. The Chairman of the BIA at that time was the legendary immigration guru” Maurice A. “Maury” Roberts. Chairman Roberts took Lauri and me under this wing and shared with us 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.

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 naturalized citizen 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 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 colleague David Crosland, now an Immigration Judge in Baltimore, 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 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. As my one of my colleagues said of Iron Mike:” “He consistently and unreasonably demanded that we do the impossible, and most of the time we succeeded.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 coproutine, and Ill let you guess who played which role. You can check the “Inman era” out with retired Immigration Judge William P. Joyce, who is sitting in the audience and shared the experience with me.

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, 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 troubling that officials at todays DOJ arent able to understand and act appropriately on the glaring conflict of interest currently staring them in their collective faces.

By the time I left in 1987, the General Counsels 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 left INS and joined Jones Days 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 with which some of you might be familiar.

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. You will note that 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 adviser to the LawyersCommittee, now known as Human Rights First.

In 1995, then Attorney General Janet Reno appointed me Chairman of the BIA. Not surprisingly, Janet Reno, who recently died, 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 didnt 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 was also kind to our clerical staff and invited them downtown to meet personally with her. She had a saying equal justice for allthat 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 Partyroutine with Will Farrell immediately following the end of her lengthy tenure at the DOJ.

Among other things, 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 Clerks 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 Awardfrom 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] As another historical footnote, the losingattorney in that case was none other than my good friend, then INS General Counsel David A. Martin, a famous immigration professor at the University of Virginia Law who personally argued before the Board.

In reality, however, by nominally losingthe 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. Without Davids help, who knows if I would have been able to get an almost-united Board to make such a strong statement on protection of vulnerable women.

During my tenure as Chairman, then Chief Immigration Judge (now BIA Member) 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. Since my retirement, I have rejoined the IARLJ as a Vice President for the Americas.

In 2001, at the beginning of the Bush Administration, I stepped down as BIA Chairman, but remained as a Board Member until April 2003. At that time, then Attorney General John 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 of last year. So, Im 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 didnt 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 Immigration Law at George Mason School of Law in 1989 and Refugee Law and Policyat Georgetown Law from 2012 through 2014. Ive just agreed to resume my Adjunct position with Georgetown Law for a compressed summer course” in “Immigration Law & Policy.

Please keep in mind that if everyone agreed with me, my career wouldnt have turned out the way it did. On the other hand, if nobody agreed with me, my career wouldnt have turned out the way it did. In bureaucratic terms, I was a “survivor.” I have also, at some point in my career, probably been on both sides of many of the important issues in U.S. immigration law.

One of the challenges that lawyers will face in Immigration Court is that different judges have distinct styles, philosophies, and preferences.   I always felt that although we might differ in personality and approach, at least in Arlington we all shared a commitment to achieving fairness and justice.

As a sitting judge, I encouraged meticulous preparation and advance consultation with the DHS Assistant Chief Counsel to stipulate or otherwise narrow issues. In Arlington, for example, even with a new high of 10 Immigration Judges, the average docket is still 3,000 cases per judge. There currently are more than 30,000 pending cases at the Arlington Court. Because of this overwhelming workload, efficiency and focusing on the disputed issues in court are particularly critical. 

THE DUE PROCESS VISION

Now, lets move on to the other topics: First, vision.   The “EOIR Vision” is: “Through teamwork and innovation, be the worlds 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 vision statement. Perhaps not surprisingly given the timing, that vision echoed the late Janet Reno’s “equal justice for alltheme.

Sadly, the Immigration Court System is moving 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 approaching an astounding 600,000 cases and no clear plan for resolving them in the foreseeable future.   There are now more pending cases in Immigration Court than in the entire U.S. District Court System, including both Civil and Criminal dockets, with fewer than half as many U.S. Immigration Judges currently on board as U.S. District Judges.

And, the new Administration promises to add hundreds of thousands, if not millions, of new cases to the Immigration Court docket, again without any transparent plan for completing the half million already pending cases consistent with due process and fairness. In fact, notably, and most troubling, concern for fairness and due process in the immigration hearing process has not appeared anywhere in the Administrations many pronouncements on immigration.

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 cant 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]

You might have read about the unfortunate statement of an Assistant Chief Judge for Training who claimed that he could teach immigration law to unrepresented toddlers appearing in Immigration Court. Issues concerning representation of so-called vulnerable populationscontinue to challenge 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. In fact, soon to be former EOIR Director Juan Osuna once declared in an officially-sanctioned TV interview that the current system is “broken.”[4]

Notwithstanding the admitted problems, I still believe in the EOIR vision. Later in this speech Im going to share with you some of my ideas for reclaiming this noble due process vision.

THE ROLE OF THE IMMIGRATION JUDGE

Changing subjects, to the role of the Immigration Judge: Whats 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.

We should all be concerned that the U.S. Immigration Court system is now totally under the control of Attorney General Jeff Sessions, who has consistently taken a negative view of immigrants, both legal and undocumented, and has failed to recognize the many essential, positive contributions that immigrants make to our country.  

Perhaps ironically, the late Judge Terence T. Evans of the Seventh Circuit Court of Appeals offered one of the best descriptions of what its like to be an Immigration Judge. Judge Evans was not one of us, but saw plenty of our work during his lifetime. Judge Evans said:

“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 Arlington Immigration Court colleague Judge Thomas G. Snow also gives a very moving and accurate glimpse of an Immigration Judges life in a recent article from USA Today:

” Immigration judges make these decisions alone. Many are made following distraught or shame-filled testimony covering almost unimaginable acts of inhumanity. And we make them several times a day, day after day, year after year.

We take every decision we make very seriously. We do our best to be fair to every person who comes before us. We judge each case on its own merits, no matter how many times weve seen similar fact patterns before.

We are not policymakers. We are not legislators. We are judges. Although we are employees of the U.S. Department of Justice who act under the delegated authority of the attorney general, no one tells us how to decide a case. I have been an immigration judge for more than 11 years, and nobody has ever tried to influence a single one of my thousands of decisions

And finally, because we are judges, we do our best to follow the law and apply it impartially to the people who appear before us. I know I do so, even when it breaks my heart.[6]

My good friend and colleague, Judge Dana Leigh Marks of the San Francisco Immigration Court, who is the 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]

Another historical footnote: as a young lawyer, then known as Dana Marks Keener, Judge Marks successfully argued the landmark Supreme Court case INS v. Cardoza Fonseca, establishing the generous well-founded fearstandard for asylum, while I helped the Solicitor Generals office develop the unsuccessful opposing arguments for INS.[8] Therefore, I sometimes refer to Judge Marks as one of the founding mothers” of U.S. asylum law.

From my perspective, as an Immigration Judge I was half scholar, half performing artist. An Immigration Judge is always on public display, particularly in this age of the Internet.His or her words, actions, attitudes, and even body language, send powerful messages, positive or negative, about our court system and our national values. Perhaps not surprisingly, the majority of those who fail at the job do so because they do not recognize and master the performing artistaspect, rather than from a lack of pertinent legal knowledge.

One of the keys to the Immigration Judges job is issuing scholarly, practical, well-written opinions in the most difficult cases. That ties directly into the job of the Immigration Courts amazing Judicial Law Clerks (“JLCs”) assisted by all-star legal interns from local law schools. The JLC’s job is, of course, to make the judge look smart,no matter how difficult or challenging that might be in a particular case.  

MY JUDICIAL PHILOSOPHY

Next, I’ll say a few words about my philosophy. In all aspects of my career, I have found five essential elements for success: fairness, scholarship, timeliness, respect, and teamwork.

Obviously, fairness to the parties is an essential element of judging. Scholarship in the law is what allows us to fairly apply the rules in particular cases. However, sometimes attempts to be fair or scholarly can be ineffective unless timely. In some cases, untimeliness can amount to unfairness no matter how smart or knowledgeable you are.

Respect for the parties, the public, colleagues, and appellate courts is absolutely necessary for our system to function. Finally, I view the whole judging process as a team exercise that involves a coordinated and cooperative effort among judges, respondents, counsel, interpreters, court clerks, security officers, administrators, law clerks and interns working behind the scenes, to get the job done correctly. Notwithstanding different roles, we all share a common interest in seeing that our justice system works.

Are the five elements that I just mentioned limited to Immigration Court? They are not only essential legal skills, they are also necessary life skills, whether you are running a courtroom, a law firm, a family, a PTA meeting, a book club, or a soccer team. As you might imagine, I am a huge fan of clinical experience as an essential part of the law school curriculum. Not only do clinical programs make important actual contributions to our justice system due process in action but they teach exactly the type of intellectual and practical values and skills that I have just described.

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. What can be done to get it back on track?

First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t comemessages to asylum seekers, which are highly ineffective in any event, must end. Thats unlikely to happen under the DOJ as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the ABA and the FBA, would be best.

Clearly, the due process focus was lost during the last Administration when officials outside EOIR forced ill-advised prioritizationand attempts to “expedite” the cases of frightened women and children from the Northern Triangle who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases was not only unfair to all, but has created what I call aimless docket reshuffling— “ADR” — that has thrown the Immigration Court system into chaos and dramatically increased the backlogs.  

Although those misguided Obama Administration priorities have been rescinded, the reprieve is only fleeting. The Trump Administration has announced plans to greatly expand the prioritytargets for removal to include even those who were merely accused of committing any crime. The Administration also plans a new and greatly expanded immigration detention empire,likely to be situated in remote locations near the Southern Border, relying largely on discredited private for profitprisons. The Administration also wants to make it more difficult for individuals to get full Immigration Court hearings on asylum claims and to expand the use of so-called expedited removal,thereby seeking to completely avoid the Immigration Court process.

Evidently, the idea, similar to that of the Obama Administration, is to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we dont want youmessage to asylum seekers.

Second, there must be structural changes so that the Immigration Courts are organized and run like a real court system, not a highly bureaucratic agency. This means that sitting Immigration Judges, like in all other court systems, must control their dockets. The practice of having administrators in Falls Church and bureaucrats in Washington, D.C., none of whom are sitting judges responsible for daily court hearings, manipulate and rearrange local dockets in a vain attempt to achieve policy goals unrelated to fairness and due process for individuals coming before the Immigration Courts must end.  

If there are to be nationwide policies and practices, they should be developed by an Immigration Judicial Conference,patterned along the lines of the Federal Judicial Conference. That would be composed of sitting Immigration Judges representing a cross-section of the country, several Appellate Immigration Judges from the BIA, and probably some U.S. Circuit Judges, since the Circuits are one of the primary consumersof the court’s “product.”

Third, there must be a new administrative organization to serve the courts, much like the Administrative Office of the U.S. Courts. This office would naturally be subordinate to the Immigration Judicial Conference. Currently, the glacial 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.  

In particular, the judicial hiring process over the past 16 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 last Administration nearly 90% of the judicial appointments were from Government backgrounds. And, there is no reason to believe that pattern will change under the current Administration. In fact, only one of the seven most recent appointments by Attorney Generals Sessions came from a private sector background.

Fourth, I would repeal all of the so-called Ashcroft reformsat the BIA and put the BIA back on track to being a real appellate court.   A properly comprised and well-functioning BIA should transparently debate and decide important, potentially controversial, issues, publishing dissenting opinions when appropriate. All BIA Appellate Judges should be required to vote and take a public position on all important precedent decisions. The BIA must also “rein in” 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.

Nearly 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] While there has been some improvement, the BIA, the only body that can effectively establish and enforce due process within the Immigration Court system, has not adequately addressed this situation.

For example, let’s take a brief “asylum magical mystery tour” down the East Coast.[12] In New York, 84% of the asylum applications are granted. Cross the Hudson River to Newark and that rate sinks to 48%, still respectable in light of the 47% national average but inexplicably 36% lower than New York. Move over to the Elizabeth Detention Center Court, where you might expect a further reduction, and the grant rate rises again to 59%. Get to Baltimore, and the grant rate drops to 43%. But, move down the BW Parkway a few miles to Arlington, still within the Fourth Circuit like Baltimore, and it rises again to 63%. Then, cross the border into North Carolina, still in the Fourth Circuit, and it drops remarkably to 13%. But, things could be worse. Travel a little further south to Atlanta and the grant rate bottoms out at an astounding 2%.

In other words, by lunchtime some days the Immigration Judges sitting in New York granted more than the five asylum cases granted in Atlanta during the entire Fiscal Year 2015!   An 84% to 2% differential in fewer than 900 miles! Three other major non-detained Immigration Courts, Dallas, Houston, and Las Vegas, have asylum grants rates at or below 10%.

Indeed a recent 2017 study of the Atlanta Immigration Court by Emory Law and the Southern Poverty Law Center found:

[S]ome of the Immigration Judges do not respect rule of law principles and maintain practices that undermine the fair administration of justice. During the course of our observations, we witnessed the following [issue, among others]. Immigration Judges made prejudicial statements and expressed significant disinterest or even hostility towards respondents in their courts. In at least one instance, an Immigration Judge actively refused to listen to an attorney’s legal arguments. In another instance, an Immigration Judge failed to apply the correct standard of law in an asylum case. [13]

This is hardly “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all!” These unusually low asylum grant rates are 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, and the regulatory presumption of future fear arising out of past persecution that applies in many asylum cases.[14] Yet, the BIA has only recently and fairly timidly addressed the manifest lack of respect for asylum seekers and failure to guarantee fairness and due process for such vulnerable individuals in some cases arising in Atlanta and other courts with unrealistically low grant rates.[15]    

Over the past 16 years, the BIA’s 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 a BIA which 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 an unfulfilled promise.

Fifth, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to files in the aisles,misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an amateur nightaura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court. 

GETTING INVOLVED 

Keep these thoughts in mind. Sadly, based on actions to date, I have little hope that Attorney General Sessions will support due process reforms or an independent U.S. Immigration Court, although it would be in his best interests as well as those of our country if he did. However, eventually our opportunity will come. When it does, those of us who believe in the primary importance of constitutional due process must be ready with concrete reforms.

So, do we abandon all hope? No, of course not!   Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns, my former student, and those who have practiced before the Arlington Immigration Court.       

They form what I call the New Due Process Army!And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of guaranteeing fairness and due process for all!        

What can you do to get involved now? The overriding due process need is for competent representation of individuals claiming asylum and/or facing removal from the United States. Currently, there are not nearly enough pro bono lawyers to insure that everyone in Immigration Court gets represented.     

And the situation is getting worse. With the Administrations expansion of so-called expedited removal,lawyers are needed at earlier points in the process to insure that those with defenses or plausible claims for relief even get into the Immigration Court process, rather than being summarily removed with little, if any, recourse.

Additionally, given the pressure that the Administration is likely to exert through the Department of Justice to movecases quickly through the Immigration Court system with little regard for due process and fundamental fairness, resort to the Article III Courts to require fair proceedings and an unbiased application of the laws becomes even more essential. Litigation in the U.S. District and Appellate Courts has turned out to be effective in forcing systemic change. However, virtually no unrepresented individual is going to be capable of getting to the Court of Appeals, let alone prevailing on a claim.

I have been working with groups looking for ways to expand the accredited representativeprogram, which allows properly trained and certified individuals who are not lawyers to handle cases before the DHS and the Immigration Courts while working for certain nonprofit community organizations, on either a staff or volunteer basis. Notwithstanding some recently publicized problems with policing the system, which I wrote about on my blog immigrationrcourtside.com, this is a critically important program for expanding representation in Immigration Courts. The accredited representativeprogram is also an outstanding opportunity for retired individuals, like professors, who are not lawyers to qualify to provide pro bono representation in Immigration Court to needy migrants thorough properly recognized religious and community organizations.        

Even if you are not practicing or do not intend to practice immigration law, there are many outstanding opportunities to contribute by taking pro bono cases. Indeed, in my experience in Arlington, big lawfirms were some of the major contributors to highly effective pro bono representation. It was also great hands onexperience for those seeking to hone their litigation skills.

Those of you with language and teaching skills can help out in English Language Learning programs for migrants.   I have observed first hand that the better that individuals understand the language and culture of the US, the more successful they are in navigating our Immigration Court system and both assisting, and when necessary, challenging their representatives to perform at the highest levels. In other words, they are in a better position to be informed consumersof legal services.        

Another critical area for focus is funding of nonprofit community-based organizations and religious groups that assist migrants for little or no charge. Never has the need for such services been greater.

But, many of these organizations receive at least some government funding for outreach efforts. We have already seen how the President has directed the DHS to “defund” outreach efforts and use the money instead for a program to assist victims of crimes committed by undocumented individuals.

Undoubtedly, with the huge emphases on military expansion and immigration enforcement, to the exclusion of other important programs, virtually all forms of funding for outreach efforts to migrants are likely to disappear in the very near future. Those who care about helping others will have to make up the deficit. So, at giving time, remember your community nonprofit organizations that are assisting foreign nationals. 

Finally, as an informed voter and participant in our political process, you can advance the cause of Immigration Court reform and due process. For the last 16 years politicians of both parties have largely stood by and watched the unfolding due process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

The notion that Immigration Court reform must be part of so-called comprehensive immigration reformis simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. Its time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided enforce and detain to the maxpolicies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

CONCLUSION

In conclusion, I have introduced you to one of Americas largest and most important, yet least understood and appreciated, court systems: the United States Immigration Court. I have shared with you the Courts noble due process vision and my view that it is not currently being fulfilled. I have also shared with you my ideas for effective court reform that would achieve the due process vision and how you can become involved in improving the process. Now is the time to take a stand for fundamental fairness’! Join the New Due Process Army! Due process forever!        

Thanks again for inviting me and for listening. Have a great conference!

 

 

(05/12/17)

        

 

 

 

 

 

[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?

BREAKING: EOIR Director Juan Oscan & Deputy Director Ana Kocur Announce Departures!

According to sources, EOIR Director Juan Osuna and Deputy Director Ana Kocur announced by e-mail that they will be leaving the agency at the end of the month. Reportedly, Kocur will be going to a position at the Railroad Retirement Board while Osuna’s plans are unknown at this time. Osuna also currently serves as an Adjunct Professor at Georgetown Law.

Osuna has been the EOIR Director since 2011, a very challenging period for EOIR. Prior to that he served as a Deputy Assistant Attorney General in he Civil Division, Chairman of the BIA, Vice Chair of the BIA, and Appellate Immigration Judge/Board Member at that BIA.  He has also been an Editor at Westlaw/Interpreter Releases, and has served as an Adjunct Professor at various law schools. He is a noted author and speaker on immigration law.

Kocur has been Deputy Director since 2012. Prior to that, she was Chief of Staff at EOIR. She was also Acting Chief Administrative Hearing Officer at EOIR and held a number of supervisory positions at the BIA.

PWS

05-11-17

Spend A Few Minutes With Me Behind The Bench! — Read My “Detained Master Calendar” Vignette From The “Journal on Migration and Human Security!”

Part IV: The Immigration Judge

There is widespread consensus that immigration courts are overwhelmed with immense caseloads, inadequate staffing, and lengthy backlogs (Arnold & Porter 2010). Non-detained immigrants in removal proceedings often wait two to three years to have their cases adjudicated. Cases on the detained docket move much faster. Despite the considerable time it takes to access counsel, determine eligibility for defenses to deportation, and gather evidence, the average life of a pro se detained immigrant’s case totals a mere 23 days (Eagly and Shafer 2015, 63).

In addition to facing institutional pressure to quickly move cases while immigrants are detained at government expense, judges are overburdened with the number of detained cases that must be efficiently adjudicated (Lustig et al. 2008). In 2015, immigration judges adjudicated and completed 51,005 detained cases, constituting 28 percent of all immigration cases completed that year (EOIR 2016, gure 11). Judges have very little face time with immigrants in their courtroom, and about half the time spent with pro se detainees involves requests for continuances to seek counsel (Eagly and Shafer 2015, 61). Furthermore, as administrative law judges, immigration judges have obligations to the respondents who appear pro se and are often required to step into the role of counsel in order to fully develop the record through interrogating, examining, and cross-examining an immigrant and any witnesses.”14

Below, a former immigration judge provides a snapshot of a few minutes on the detained docket.

*****

Prelude15

Wednesday afternoon, detained master calendar. Feeling love and dread. Love: Fast-paced, meaningful, live audience, prepared attorneys, challenging legal questions, teamwork, mediation, problem solving, saving lives, teaching, performing, drama, positive messages, mentoring, full range of life and legal skills in use and on display. Dread: Hopeless cases, sobbing families, watching goodbyes, “not-quite-ready-for-primetime” (“NQRFPT”) attorneys, bad law, missing files, missing detainees, lousy televideo picture of respondent, equipment failures, claustrophobic courtroom, clogged dockets, imprisoned by the system, due process on the run, stress.

Pregame Warm-up

“How many today, Madam Clerk?”

“Fourteen, five bonded, two continued.”

“Thanks, Madam Clerk. Let’s make it happen!”

Showtime.

Politeness, patience, kindness. Listen.

“Please rise, the United States Immigration Court at Arlington Virginia, is now in session, Honorable Paul Wickham Schmidt, presiding.”

Jam-packed with humanity. Live. Uncomfortably hot. Bandbox courtroom. Ratcheting tensions. America’s most important, most forgotten courts. Lots of moving pieces. Put folks at ease. Performance begins.

The Damned

“We’re on the record. This is Judge Paul Wickham Schmidt at the United States Immigration Court in Arlington, Virginia; we’re on a televideo hookup with the DHS Farmville Detention Center, the date is . . . , and this is a master calendar removal hearing in the case of Ricardo Caceres, File number A123 456 789. Counsel, please identify yourselves for the record.”

“Bonnie Baker for the respondent, Mr. Caceres.”

“April Able for the DHS.”
“What are we here for Ms. Baker?”

“Your Honor, we’re seeking a reasonable bond for my client, who has been in the United States for more than two decades. He’s a family man, the sole support of his wife and four US citizen children, who are sitting right behind me. He’s a skilled carpenter with a secure job. He pays his taxes. He’s a deacon at his church. His employer is here this afternoon and is willing to post bond for him. The respondent’s wife is out of work, and the family is on the verge of being evicted from their apartment. The oldest son and daughter are having trouble in school ever since their father was detained. The baby has developed asthma and cries all night.”

“I assume he’s in detention for a reason, Ms. Baker. What is it?”

“Well, Your Honor, he had a very unfortunate incident with one of his co-workers that resulted in his one and only brush with the law. I think he probably got some questionable legal advice, too.”

“What’s the conviction?”
“Aggravated assault with a deadly weapon.”
“Sentence?”
“18 months, with all but three months suspended, Your Honor.”

“Hmmm. Doesn’t sound very promising. What’s your take, Ms. Able?”

“He’s an aggravated felon, Your Honor, under the BIA and Fourth Circuit case law. Therefore, he’s a mandatory detainee. May I serve the records of conviction?”

“Yes, thank you Ms. Able. Isn’t Ms. Able right, Ms. Baker? He’s mandatory detained under the applicable law, isn’t he?”

“Well, Your Honor, technically that might be right. But we’re asking you to exercise your humanitarian discretion in this extraordinary situation.”

“As you know, Ms. Baker, I’m not a court of equity. The law gives me no discretion here. So, based on what you’ve presented, no bond. What’s next? Are you admitting and conceding removability and filing for relief?”

“The family wanted me to ask for bond, Your Honor.”

“You did, Ms. Baker. What’s the next step?”

“Well, the respondent has instructed me that if you didn’t grant a bond, he just wants a final order to go back to Mexico. He’s been in detention for some time now, and he just can’t wait any longer.”

“You’re sure that’s what Mr. Caceres wants to do?”

“Yes, Your Honor.”
“Mr. Caceres, this is Judge Schmidt, can you hear me?”

“Yes.”

“Because of the crime you committed, the law doesn’t permit me to set a bond for you. Your lawyer, Ms. Baker, tells me that you have decided to give up your rights to a full hearing and be removed to Mexico. Is that correct?”

“Yes, Your Honor. I can’t stand any more detention.”

“You understand that this is a final decision, and that once I enter the order you will be removed as soon as DHS can make arrangements.”

“Yes, judge, I understand.”

“And, you’ve discussed this with your family, sir?”

“I just want to go — no more detention. Can I go tomorrow?”

“Probably not. But the assistant chief counsel and DHS officer in court are noting that you want to go as soon as can be arranged.”

“Your Honor, may his wife and children come up and see him for a moment?”

“Yes, of course, Ms. Baker. Please come on up folks.”

“Your Honor, the respondent’s wife would like to make a statement to the court.”

“I don’t think that’s prudent, Ms. Baker. She’s already hysterical, and there is nothing I can do about the situation, as I’m sure you’ll explain to her. We have lots of other people waiting to see me this afternoon.”

“Understood. Thanks, Your Honor.’

“You’re welcome, Ms. Baker. You did the best you could. Take care folks. I’m sorry you’re in this situation. Mr. Caceres, good luck to you in Mexico. Please stay out of trouble. The clerk will issue the final order. Who’s next, Madam Clerk?”

The “Not-Quite-Ready-For-Prime-Time” (“NQRPT”) Lawyer

“Mr. Queless, we’re here for your filing of the respondent’s asylum application.”
“Um, Your Honor, I’m sorry I don’t have it with me. I didn’t have a chance to get to it.”

“Why’s that, Mr. Queless? Your client has been in detention for some time now, and I gave you a generous continuance to get this done.”

“That’s very true, Your Honor, but the power was out at our office for a day, and my son crashed his car and I had to take care of the insurance and the repairs.”

“All right, come back in three weeks with your filing, without fail.”

“Can I come back next week, Your Honor? My client has been in detention a long time.”

“I know that, counsel. That’s why I wanted you to file today, so we could set an individual date. I’m already overbooked for next week, and I can’t justify putting you in front of others who are prepared.”

“Ah, could we just set an individual date now, Your Honor, and I’ll promise to file within a week?”

“That sounds like a really bad idea, Mr. Queless, in light of actual performance to date. I want to see the completed filing before I assign the individual date. That’s how we do things around here. You’ve been around long enough to know that.”

“Excuse me, Your Honor, but may I be heard?”

“Yes, you may, Ms. Able.”

“With due respect, Your Honor, at the last master calendar you said this would be the final continuance. This detained case has been pending for months, and you have given counsel a more than reasonable opportunity to file for relief. At this point, the DHS must request that you deny any further continuance and move that you enter an order of removal.”

“Well, I sympathize with your position, Ms. Able. I did say this would be the last continuance, and I’m as frustrated as you are. But I note that the respondent is from a country where we routinely grant asylum, often by agreement or with no objection from your office. Therefore, I feel that we must get to the merits of his claim. Let’s do this. Mr. Queless, I’m going to give you an ‘incentive’ to get this filed. If the I-589 is not complete and ready to file at the next hearing — no more excuses, no more ‘dog ate my homework’ — I’m going to agree with Ms. Able, grant her motion, and enter an order of removal against your client. Do you understand?”

“Yes, Your Honor. I’ll have it here at the master in three weeks.”

“Anything further from either counsel?”

“Nothing from the DHS, Your Honor.”

“Nothing from the respondent, Your Honor.”

“Hearing is continued.”

The Skeptic

“How are you this afternoon, Mr. Garcia?”

“Okay.”

“Spanish your best language?”

“Yes.”

“Is this your first appearance before me?”

“Yes.”

“You’re going to look for a lawyer before we proceed with your case?”

“Do I need a lawyer, judge?”

“Depends on what you want, Mr. Garcia. I can send you back to Guatemala at government expense or give you voluntary departure if you wish to pay your own way and avoid having a formal removal order on your record. Is that what you want?”

“Oh, no, judge. I don’t want to go back.”

“Then, you need a lawyer, sir. Officer, please give Mr. Garcia the legal services list. Mr. Garcia, this is a list of organizations in Virginia that might be willing to represent you at little or no charge if you can’t afford a lawyer. You should also check with family and friends to see if they can help you nd a free or low-cost lawyer to take your immigration case. I’ll set your case over for three weeks to give you a chance to look.”

“Can I come back next week?”

“You won’t be able to find a lawyer by then, sir. Take the three weeks. If you don’t have a lawyer by then, we’ll go forward without one.”

“Okay, Your Honor.”

“Good luck in finding a lawyer, Mr. Garcia. The clerk will issue the notices. Who’s next, Madam Clerk?”

Postlude

Out of court. Satisfied. Tired. Drained — like a Steph Curry three-pointer. Find my colleagues. Fresh air. Walk in the park. Talk sports, politics, weather. Visit Starbucks. Final refill. Recharge batteries. Master tomorrow morning. Fifty non-detained. Too many. The beat goes on. Walking free. Not an “alien.” Glad. Lucky. Thankful.

14 Immigration and Nationality Act (INA) § 240(b)(1).
15 This account is written by Hon. Paul Wickham Schmidt, who served as the chairman of the Board of Immigration Appeals before being appointed to the Arlington Immigration Court in May 2003, where he served as an immigration judge for 13 years before recently retiring from that position. While the names he has provided in this account are entirely fictional, the situations he describes are based on his own wealth of experience adjudicating cases in immigration court.

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

The full citation is:

Ahmed, Saba; Jordan, Rachel; Appelbaum, Adina, The Human Cost of IIRIRA — Stories From Individuals Impacted by the Immigration Detention System, 5 JMHS 194, 206-11 (2017). Co-author Adina Appelbaum is a former Arlington Immigration Court legal intern and one of my “all-star” students from “Refugee Law & Policy” at Georgetown Law. Read the entire collection of interesting and moving  human stories here:

80-263-2-PB

PWS

03/22/17