🌲UNDER YOUR TREE:  A GIFT 🎁 FROM “SIR JEFFREY” CHASE OF THE ROUND TABLE 🛡️— “Asylum In The Time Of M-R-M-S-“ — “One reaction to this decision would have involved explaining that the Board’s illogical holding was reached not by error but by design, in furtherance of a restrictionist agenda; asking why the current administration hasn’t changed the makeup of a BIA specifically constructed to do exactly that . . . . But such talk would be of no practical help. What those representing asylum applicants and those in government deciding those claims need now is a path to negotiate this latest obstacle and still reach the correct result.”

Four Horsemen
“Sir Jeffrey” tells us how to use “the law as a sword” to defend against the BIA’s anti-asylum precedent in M-R-M-S-. Don’t let yourself and your clients be “shredded and trampled” by BIA panels wielding deadly, hyper-technical, counterintuitive, overly restrictive asylum precedents designed to promote and support “any reason to deny!”
Albrecht Dürer, Public domain, via Wikimedia Commons

https://www.jeffreyschase.com/blog/2023/12/24/asylum-in-the-time-of-m-r-m-s-2

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

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Asylum in the Time of M-R-M-S-

Introduction

In 2017, while Matter of L-E-A-1 was pending before the BIA, I attended an immigration law conference at which Professor Jon Bauer posed the following “thought experiment”:

A Nazi official threatens to kill all the Jews in a town unless a Jewish criminal, who has committed several robberies and murders and is suspected to be hiding in the area, is turned over to the authorities or turns himself in.

Is this persecution on account of religion?

The answer is obviously yes. Those in the town find themselves at risk of persecution on account of their religion. It would seem impossible for anyone possessing knowledge of our asylum laws (or just plain common sense) not to understand this.

However, with its decision in Matter of M-R-M-S-,2 the Board of Immigration Appeals has managed to create a test for nexus that would lead to the opposite conclusion.

One reaction to this decision would have involved explaining that the Board’s illogical holding was reached not by error but by design, in furtherance of a restrictionist agenda; asking why the current administration hasn’t changed the makeup of a BIA specifically constructed to do exactly that; bemoaning the fact that regulations that are more than two years overdue could have prevented this; and suggesting that the correct course of action for the Attorney General to take at this point would be to vacate this decision in anticipation of said forthcoming rulemaking.

But such talk would be of no practical help. What those representing asylum applicants and those in government deciding those claims need now is a path to negotiate this latest obstacle and still reach the correct result. I hope that some of what follows will prove helpful, and that it will encourage further thought and conversation on this topic.

Legal Strategies in light of M-R-M-S-

  1. Distinguish your case based on the facts

In M-R-M-S-, the Board chose for its precedent a case surprisingly devoid of facts. The entire factual summary consists of three sentences. A criminal cartel forced the respondents off of their land “because the cartel wanted the land for its own purpose. The cartel killed the lead respondent’s grandson for unknown reasons, although the respondents believe it was related to the cartel’s efforts to obtain their land. The cartel also forced other families off of land in the same area.”

This summary makes no mention of how family membership might have been a factor; it only says the cartel wanted the land for its own unstated purpose. It can be argued that the decision simply establishes that cases asserting mixed motives need to present more than one motive.

Instead, the Board leaped to a much broader and more damaging conclusion that wasn’t even suggested by the above facts, namely, that targeting members of a family for purposes of achieving another non-protected ground renders the family membership “incidental or subordinate,” and thus lacking the nexus required for asylum or withholding of removal protection.

Tip: Distinguish your facts from those in M-R-M-S-.

Emphasize how family or another protected ground played a significant role in the applicant being targeted for persecution. Note that merely mentioning that other family members were also harmed does not in itself establish a nexus on account of family membership.

Tip: Employ the Board’s test in Matter of S-P- when applicable.

In Matter of S-P-,3, the BIA looked at when government prosecution might actually be persecution on account of political opinion. And one of the warning signs it mentioned occurs when the punishment is clearly out of proportion to the conduct in question. So under S-P-’s test, if someone charged with jaywalking is detained at length and beaten by the police, the reasonable conclusion is that the punishment wasn’t actually about the jaywalking.

One can transpose this approach to the particular social group consisting of family by arguing that the same logic applies to gang punishment for failing to pay extortion. Particularly where the amount being sought by the gang or cartel isn’t that much, when the response to the failure to pay is to threaten to severely harm or kill a family member of the target of extortion, a reasonable conclusion under S-P- would be that this isn’t simply about the money. A gang or cartel can seek a financial goal, but at the same time can develop an animosity against a family resistant to its demands.

Moving on, the use of the word “subordinate” in the Board’s most recent holding is of interest, for the following reasons.

  1. The fall and rise of the Board’s “subordination” criteria for nexus

In its first attempt to define the “one central reason” language adopted by Congress in 2005, the BIA in Matter of J-B-N- & S-M-4 recognized in the last paragraph of page 212 of that decision that the standard did not require a central reason to be “dominant” in relation to other reasons for persecution. In fact, in a footnote, the Board further explained: “The problem in classifying one motive as “dominant” or “central” is that it renders all other motives, regardless of their significance to the case, secondary and therefore ultimately irrelevant.”

Yet two pages after rejecting a hierarchical approach to nexus, the Board defined the new standard as a reason that “cannot be incidental, tangential, superficial, or subordinate to another reason for harm.”

The problem with the inclusion of the word “subordinate” is obvious. It means that once an adjudicator finds a reason they consider to be the dominant one, their inquiry is over, and, as the Board itself warned, all other motives become irrelevant.

The Third Circuit, in Ndayshimiye v. Attorney General of U.S.5 rejected the Board’s standard for precisely this reason: its use of the word “subordinate” was found by the court to be no different from the “dominance” test that the Board purported to reject. To quote the Third Circuit:

This plain language indicates that a persecutor may have more than one central motivation for his or her actions; whether one of those central reasons is more or less important than another is irrelevant. The BIA acknowledged this in refusing to define a central reason within the meaning of § 208 as a “dominant” motivation. Id. at 212. The same logic forbids an interpretation that would impose a mirror image of the rejected “dominance” test: the requirement that a protected ground, even if a “central” reason for persecution, not be subordinate to any other reason.

Interestingly, following this rejection of its standard, the BIA reacted by dropping the word “subordinate” from its stated legal standard.  For example, in a subsequent (2011) precedent, Matter of N-M-, 6 the Board cited its earlier decision in  J-B-N & S-M-, but made no mention of that case’s incidental/tangential/superficial/subordinate language at all. Rather, the Board said:

In cases arising under the REAL ID Act, the “protected ground cannot play a minor role in the alien’s past mistreatment or fears of future mistreatment.” Matter of J-B-N- & S-M-, 24 I&N Dec. at 214. Instead, a [noncitizen] must demonstrate that the persecutor would not have harmed the applicant if the protected trait did not exist.7

The italicized sentence states a “but for” causation standard which we will discuss further below. In fact, it seems to be an identical standard to that employed by the Fourth Circuit, whose approach the Board criticized in M-R-M-S-.

Years later,  in the aforementioned Matter of L-E-A- (decided in 2017), the Board amended its earlier language in J-B-N- & S-N- as follows:

The protected trait, in this case membership in the respondent’s father’s family, “cannot play a minor role”—that is, “it cannot be incidental [or] tangential . . . to another reason for harm.”8

Notice how an ellipsis is used to drop the word “subordinate” from the definition. So the Board seemed to understand for quite some time that the legal standard it enunciated could not include a dominance test (although it would then proceed to apply a dominance test in practice, as numerous circuit court reversals have demonstrated)

But now, without explaining the reason for  its sudden reversal, the Board has in M-R-M-S- reverted to its original flawed standard.  Here’s the quote:

A protected ground that is “incidental, tangential, superficial, or subordinate to another reason for harm” does not satisfy this standard.  Matter of J-B-N- & S-M-, 24 I&N Dec. at 214. 9

Furthermore, the Board chose to reassert its dominance requirement in a case in which the facts mention only one reason, and a vague one at that – that “the cartel wanted the land for its own purpose.” A dominance test is meaningless where there is only one reason asserted for the persecution.

But what if the revived dominance test were to be applied to Prof. Bauer’s hypothetical? Presumably, the Board would find the dominant reason for the threatened persecution to be the Nazi authorities’ desire to bring a criminal to justice. The targeting of the suspect’s coreligionists as a means to achieve that primary objective would, under the Board’s test, become “subordinate” to that goal, and would thus render the murdering of the town’s Jews “irrelevant.” Applying the Board’s “logic,” religion would not be one central reason for the murders.

As the above example demonstrates, the Board’s test will lead to truly absurd results. It is therefore not surprising that the Board’s standard is at odds with the approach of most circuits.

  1. The reinstituted dominance test conflicts with most circuit case law

Tip: Argue the inapplicability of M-R-M-S- where it conflicts with prevailing circuit law.

While not exhaustive, the following selection of circuit court case law should provide a basis for arguing that the Board’s standard for determining nexus is inapplicable in many courts located within the jurisdiction of those circuits

Third Circuit

It should certainly be argued in cases arising within the jurisdiction of the Third Circuit that the new decision’s reiteration of the exact legal standard that was rejected in Ndayshimiye (as discussed above) means that M-R-M-S- cannot be followed. The BIA actually recognized the conflict in footnote 6 of its decision, stating:

Although the United States Court of Appeals for the Third Circuit generally agrees with the Board’s interpretation of the “one central reason” standard, it has rejected the requirement that a protected ground not be subordinate to another reason for harm. See Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124, 130–31 (3d Cir. 2009).

The Board thus seemed to acknowledge by way of this footnote the inapplicability of its decision in the Third Circuit.

Fourth Circuit

The BIA in M-R-M-S- does not contest that its requirement for nexus is at odds with the long-established “but for” standard employed by the U.S. Court of Appeals for the Fourth Circuit.

In Hernandez-Avalos v. Lynch,10 the Fourth Circuit explained that even though a gang threatened the petitioner for the purpose of recruiting her son, the applicant was nevertheless targeted “on account of” her family ties because her “relationship to her son is why she, and not another person, was threatened….”  The court has repeated the “why she, and not another person” test in other decisions.11

The Fourth Circuit has more recently pointed to an oft-repeated error of the Board in “incorrectly focusing on why the gang targeted Petitioner’s family, rather than on why they targeted Petitioner herself.”12  In another published decision, the Fourth Circuit stated that “‘once the right question is asked’ — that is, why was Petitioner being targeted — the conclusion is quite clear: ‘whatever [the gang]’s motives for targeting [her] family, [Petitioner herself] was targeted because of [her] membership in that family.’”13

The fact that the Board in M-R-M-S- states that it prefers the approach of the Tenth Circuit, which “does not agree with the Fourth Circuit’s approach,”14 does not change the fact that the standard enunciated in the above-captioned Fourth Circuit decisions remains the standard for nexus applicable in Immigration Courts and Asylum Offices located within that circuit’s jurisdiction.

Cases being heard remotely by an IJ located within the Fourth Circuit

A decision of the Fourth Circuit issued last year provides a strong argument for applying that court’s nexus standard in lieu of the M-R-M-S- approach in cases geographically outside of the circuit’s jurisdiction which are heard remotely by Immigration Judges sitting in Virginia, Maryland, or North Carolina.

In Herrera-Alcala v. Garland 15, the Fourth Circuit held that under a plain reading of the statute, jurisdiction is determined by the geographic location of the immigration judge at the time the judge completed the proceedings.

The BIA subsequently issued a conflicting precedential opinion, Matter of Garcia.16 But as the Fourth Circuit’s ruling in Herrera-Alcala was based on its clear reading of the statutory language, the lack of a finding of statutory ambiguity would preclude deference to the Board’s view under either Chevron or Brand X.

In cases in which the Immigration Judge is sitting within the Fourth Circuit while the respondent is appearing in an immigration court elsewhere, the argument should be made that Fourth Circuit case law should apply. Claims constructed using Fourth Circuit precedent should be presented below, as in case the claim is denied by the agency, the applicant will ultimately be able to seek review before the Fourth Circuit.

Cases arising under the jurisdiction of other circuits

Fifth Circuit

Outside of the obvious examples of the Third and Fourth Circuits, be highly aware of the case law of the prevailing circuit regarding nexus. Most circuits have rejected the Board’s approach to some degree. Furthermore, the BIA misrepresented the holdings in some of the circuit decisions it cited in M-R-M-S-, a point that should be brought to the attention of judges or asylum officers.

The Fifth Circuit provides us with an example. In M-R-M-S-, the BIA cited the Fifth Circuit’s decision in Guevara-Fabian v. Garland17 as an example of a court employing an analysis of nexus consistent with its own approach.18 However, the court in Guevara-Fabian simply found that there was substantial evidence that the petitioner was targeted “because she owned a profitable business,” and not due to her family membership. This is quite different from the Board’s holding that being targeted due to one’s family membership is insufficient to establish a nexus where such family-based targeting is used as a means to achieving another non-protected goal.

Furthermore, four days after the issuance of M-R-M-S-, the Fifth Circuit published its decision in Argueta-Hernandez v. Garland.19 The facts in that case did not involve a family-based particular social group, but in addressing the subject of nexus, the court’s opinion rejected the agency’s general approach of rejecting all but the dominant reason for persecution.

Specifically, the Fifth Circuit found that in concluding threats by MS-13 were motivated “by criminal intent, personal vendettas, or monetary gain, which do not establish the required nexus,” the BIA disregarded that the petitioner “needed only to present ‘some particularized connection between the feared persecution’ and the protected ground in which his application for relief relies.” The court then referenced an earlier decision in which it had rejected the Board’s employment of an “either-or” approach to nexus in a mixed motive case, and said that the Board had acted similarly here by suggesting that Argueta was targeted for economic reasons “instead” of for a protected ground.20

So in cases arising in the Fifth Circuit, it should be argued that Guevara-Fabian did not support the Board’s approach in M-R-M-S-, as it was distinguishable on its facts, and that the court’s subsequent rejection in Argueta-Hernandez of the type of dominance approach and “either-or” test employed in M-R-M-S- puts the Board’s view of nexus in conflict with circuit law.

Sixth Circuit

On December 8 (i.e. 7 days after the publication of M-R-M-S-), the U.S. Court of Appeals for the Sixth Circuit issued its decision in Sebastian-Sebastian v. Garland 21. In that case, the petitioner, who suffered domestic violence at the hands of her husband, and, following his death, at the hands of his mother, claimed persecution on account of particular social groups which included  “Guatemalan Chuj [w]omen in domestic relationships who are unable to leave,” and “Guatemalan Chuj [w]omen who are viewed as property by virtue of their positions within a domestic relationship.” But the IJ found, and the Board affirmed, that the abuser acted based on a personal vendetta, and therefore found no nexus to a particular social group.

As the record contained ample evidence that “cultural expectations dictated that a Guatemalan Chuj woman in her position—both viewed as property and unable to leave by virtue of her domestic relationship—must stay with her in-laws and have nowhere else to go,” the Sixth Circuit determined there was “sufficient evidence for the BIA to conclude that Sebastian-Sebastian’s membership in these groups ‘underlay[s] all of [her persecutors’] actions.’”22 The court thus concluded that the Board’s failure to consider whether, in light of the above, the personal motives and particular social group membership were “inextricably intertwined” constituted reversible error.

The Sixth Circuit thus held (post-M-R-M-S-) that even where the primary reason for the persecution is a non-protected one (in this case, personal animosity), the fact that membership in a particular social group put and kept the asylum applicant in harm’s way is sufficient to render it sufficiently intertwined to satisfy the “one central reason” test. I believe a strong argument can be made that applying this approach to a family-based PSG would require a finding that even if the ultimate motive is extortion, if family membership is what put and kept the asylum applicant in harm’s way, there is sufficient nexus.

Seventh Circuit

In Gonzalez Ruano v. Barr,23  the Seventh Circuit explicitly rejected an approach essentially the same to that underlying the Board’s decision in M-R-M-S-. The petitioner suffered persecution by a criminal cartel whose leader viewed the petitioner’s wife as “property” that he sought to “possess.” The petitioner thus argued that his familial relationship to his wife was at least one central reason for his persecution.

On review, the Seventh Circuit specifically rejected the government’s argument that the persecution of the petitioner “was simply a ‘means to an end,’ making [the petitioner]’s relationship to his wife incidental.”24 The court found support in the Fourth Circuit’s decision in Hernandez-Avalos v. Lynch, adopting the Fourth Circuit’s test under which a nexus exists because the petitioner’s “relationship to his wife was the reason he, and not someone else, was targeted.”25

As the Seventh Circuit is in accord with the Fourth Circuit’s test that specifically rejects the Board’s approach to nexus (a conflict readily admitted by the Board in M-R-M-S-), the Board’s nexus standard is necessarily inapplicable in cases in which Seventh Circuit case law applies. It should be emphasized that the Fourth Circuit’s decision in Hernandez-Avalos which the Seventh Circuit positively cites is the specific decision mentioned by the Board in M-R-M-S- as an example of how the Fourth Circuit’s approach differs from its own.26

Eleventh Circuit

The Eleventh Circuit in Perez-Sanchez v. U.S. Att’y Gen.27 also applied a “but for” approach to nexus in a case involving family, determining that the persecutor’s monetary motivation did not render the petitioner’s family membership merely incidental where a criminal cartel targeted the petitioner because his father-in-law owed the cartel money. This is the exact scenario the Board rejected in M-R-M-S-, in which a family member is targeted as a means to a monetary end.

However, exactly as the Fourth Circuit had done in Hernandez-Avalos, the Eleventh Circuit stated that “In Mr. Perez-Sanchez’s case, it is impossible to disentangle his relationship to his father-in-law from the Gulf Cartel’s pecuniary motives: they are two sides of the same coin.” The court  concluded that “the family relationship was one central reason, if not the central reason, for the harm.”28

Thus, the M-R-M-S- standard is at odds with Eleventh Circuit case law as well.

Ninth and Second Circuits

The approach of these two circuits relates to the “but-for” standard. The Ninth Circuit applies a “but-for cause” test in determining nexus. As that court recently noted, to satisfy that standard, an asylum applicant “must first show that ‘the persecutor would not have harmed [her] if such motive did not exist,’… that is, but-for cause, see But-for Cause, Black’s Law Dictionary (11th ed. 2019) (“The cause without which the event could not have occurred.”).29

Interestingly, in M-R-M-S-, the BIA quoted this but-for cause language from Parussimova without mentioning that the standard was in conflict with its own.30

It should therefore be argued in cases arising in the Ninth Circuit that applying that court’s “but-for cause” test would lead to a quite different result than the standard enunciated in M-R-M-S-.

The Second Circuit’s standard is less clear, but the court seems to view the “one central reason” requirement an even lower bar for establishing nexus than a but-for cause test. In Quituizaca v. Garland,31 the court noted the need to predict future persecution in withholding of removal claims, as opposed to other areas of law that employ a but-for causation test to past actions only. The court noted that where an adverse action has already occurred, there is an implication that “whatever evidence to establish but-for causation or refute it exists too.”

By contrast, the court noted that because of the predictive nature of future persecution in withholding claims, “[a] but-for standard in this context would seemingly require the applicant have insight into the motivations of the hypothetical future persecutor that sufficiently removes any doubt that the persecutor would be motivated by anything else,” adding that “[a]t a minimum, the proof that can be marshalled to rectify past conduct appears to us distinct from that which would be needed to establish a persecutor’s potential future conduct.”

While the Quituizaca decision is not even mentioned in M-R-M-S-, the Board does reference another Second Circuit case, Garcia-Aranda v. Garland,32 but essentially misrepresents that decision’s holding. In Garcia-Aranda, the facts established that although family members had also been harmed, the petitioners were targeted for persecution because of their own perceived wealth. Whether or not they were related to others who suffered harm would not change the outcome. Thus, in Garcia-Aranda, the court did not address, much less reject, the proposition that no nexus is established under a Hernandez-Avalos type of fact pattern.

A quick note regarding the Tenth Circuit

M-R-M-S- arose within the jurisdiction of the Tenth Circuit, and the Board lauded that court’s decision in Orellana-Recinos v. Garland33 as setting forth its preferred standard for nexus.34

It is worth noting that in Orellana-Recinos, “Petitioners did not challenge, or even cite, Matter of L-E-A- in their brief to this court. And at oral argument they cited it as authority. As previously noted, they dispute only the BIA’s factual findings in their case, not the legal framework it applied.”35

  1. What about the standard applied in discrimination cases?

The Supreme Court recently addressed the question of nexus outside of the asylum context in Bostock v. Clayton County,36  a case involving employment discrimination under Title VII of the 1964 Civil Rights Act.  The Court explained in Bostock that the statutory term in question, “because of,” carries the same legal meaning as “on account of,” (i.e. the standard used in asylum cases).

The Court continued that the standard requires a court to apply the “simple” and “traditional” “but-for” test.  As the Court explained, “a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.”37

The Court recognized that the “but-for” standard is a “sweeping” one, acknowledging that “[o]ften, events have multiple but-for causes.”  The Court further observed that “[w]hen it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.”38

This leads to the following question: if “on account of” is not a term specific to asylum, and if the Supreme Court has told us that there is a simple and traditional test for “on account of” that is none other than the “but-for” test being applied by several circuits as described above, can the BIA simply ignore this in creating its own definition for the term “on account of” applicable to asylum claims? M-R-M-S- makes no mention of Bostock. If the Board doesn’t believe that case to be applicable, why not explain its reasoning for reaching that conclusion?

Tip: There is thus an argument to be made in all jurisdictions that the Supreme Court’s standard in Bostock should be the prevailing one.

I have discussed Bostock and offered my views on its applicability to asylum in more detail here.

  1. Emphasize other BIA precedents

Even in the absence of conflicting circuit or Supreme Court case law, an Immigration Judge or asylum officer is left to sort through the several BIA precedents mentioned above. Matter of S-P- (which has not been overruled) did not conclude that because an asylum applicant faced criminal prosecution, there was nothing further to consider. Instead, the Board in that case set forth a test requiring adjudicators to continue their inquiry,  taking into account circumstantial evidence and applying common sense to see if another motive for the persecution might be inferred from the facts of record.

As noted above, Matter of N-M- set out a “but-for” standard that seems identical to the one employed by the Fourth Circuit. And even Matter of L-E-A- dropped the word “subordinate,” and thus the application of the dominance test, from its stated legal standard.

Tip: Note that these other BIA precedents remain binding as precedent.

These other cases should therefore be cited and explained, and the degree to which they conflict with M-R-M-S- should be emphasized. It can be argued that M-R-M-S-’s applicability should be limited to cases in which family members are merely mentioned in passing, without further elucidation from the record as to why family membership might have served as a reason for past or future persecution.

Conclusion

As the above hopefully demonstrates, there are plenty of bases to challenge the Board’s recent decision. In M-R-M-S-, the Board presented an approach to nexus that is at odds with the case law of the majority of circuits. The Board mischaracterized the holdings in a number of circuit court decisions, championed a decision of the Tenth Circuit in which the Board’s standard was conceded and thus not in dispute before that court, and completely ignored the Supreme Court’s analysis of the “on account of” standard without explaining why what the Court termed the traditional standard for nexus was distinguishable in the asylum context.

To reiterate, the proper thing for the Attorney General to do at this point is to certify the decision to himself, and vacate it pending anticipated rulemaking. In the meantime, it is hoped that some of the above points will receive serious consideration from asylum officers, Immigration Judges, ICE attorneys, and federal appellate courts.

Copyright Jeffrey S. Chase 2023. All rights reserved.

Notes:

  1. 27 I&N Dec. 40 (BIA 2017).
  2. 28 I&N Dec. 757 (BIA 2023).
  3. 21 I&N Dec. 486 (BIA 1996).
  4. 25 I&N Dec. 208 (BIA 2007).
  5. 557 F.3d 124, 129-30 (3rd Cir., 2009).
  6. 25 I&N Dec. 526 (BIA 2011).
  7. Id. at 531 (emphasis added).
  8. Matter of L-E-A-, supra at 44.
  9. Matter of M-R-M-S-, supra at 759 (emphasis added).
  10. 784 F.3d 944, 950 (4th Cir. 2015).
  11. See, e.g., Alvarez-Lagos v. Barr, 927 F.3d 236, 250 (4th Cir. 2019); Cruz v. Sessions, 853 F.3d 122, 129 (4th Cir. 2017).
  12. Perez Vasquez v. Garland, 4 F.4th 213 , 222 (4th Cir. 2021).
  13. Hernandez-Cartagena v. Barr, 977 F.3d 316, 322 (4th Cir. 2020) (citing Salgado-Sosa v. Sessions, 882 F.3d 451, 459 (4th Cir. 2018)).
  14. M-R-M-S-, supra at 761.
  15. 39 F.4th 233 (4th Cir. 2022).
  16. 28 I&N Dec. 693 (BIA 2023).
  17. 51 F.4th 647, 648 (5th Cir. 2022) (per curiam).
  18. M-R-M-S-, supra at 760.
  19. No. 22-60307 (5th Cir. Dec. 5, 2023).
  20. Id., slip op. at 16-17 (citing Rivas-Martinez v. I.N.S., 997 F.2d 1143, 1145, 1147-48  (5th Cir. 1993) (remanding to BIA for consideration of mixed motives).
  21. No. 23-3059 (6th Cir. Dec. 8, 2023).
  22. Id., slip op. at 22 (quoting Al-Ghorbani v. Holder, 585 F.3d 980, 998 (6th Cir. 2009).
  23. 922 F.3d 346 (7th Cir. 2019).
  24. Id. at 355-56.
  25. Id. at 356.
  26. See M-R-M-S-, supra at 761 (stating that the Tenth Circuit does not agree with the Fourth Circuit’s approach in Hernandez-Avalos, and adding its opinion that the Tenth Circuit’s is the proper approach).
  27. 935 F.3d 1148 (11th Cir. 2019).
  28. Id. at 1158-59.
  29. Rodriguez Tornes v. Garland, 993 F.3d 743, 751 (9th Cir. 2021) (quoting Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009).
  30. See M-R-M-S-, supra at 762.
  31. 52 F.4th 103, 112-13 (2d Cir. 2022).
  32. 53 F.4th 752, 758 (2d Cir. 2022).
  33. 993 F.3d 851 (10th Cir. 2021).
  34. M-R-M-S-, supra at 761 (stating “In our view, the Tenth Circuit’s approach is the proper way to analyze whether membership in a family-based particular social group is one central reason for harm.
  35. Id. at 857.
  36. 140 S. Ct. 1731 (2020).
  37. Id. at 1739.
  38. Id.

DECEMBER 24, 2023

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals.He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award.Jeffrey is also a past recipient of AILA’s Pro Bono Award.He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.

Reprinted by permission.

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It’s very satisfying to see Jeffrey’s positive use of Matter of S-P-, a “Schmidt era” precedent in which I joined and which remains good law despite the current BIA’s often ignoring or misapplying it. It’s also a great example of the useful guidance flowing from “positive precedents” — those illustrating and promoting proper asylum grants — as opposed to the overwhelmingly negative tenor of today’s unduly restrictive BIA asylum precedents. 

As many of us often say, justice for asylum seekers and other migrants shouldn’t be this difficult in Garland’s courts. See also https://immigrationcourtside.com/2023/12/04/☠%EF%B8%8F🤯-bia-trashes-normal-legal-rules-of-causation-jettisons-4th-cir-precedent-to-deny-family-based-psg-case-the-latest-anti-asylum-znger-from-falls-church-famil/.

Even while the BIA tortures asylum law to make it more difficult to qualify, authorities in other “UN Convention nations” are moving in the opposite direction. For example, Switzerland recently joined Finland, Sweden, and Denmark in automatically granting asylum to Afghan women.  See, e.g., https://www.tortoisemedia.com/2023/12/19/switzerland-becomes-fourth-country-to-automatically-grant-asylum-to-afghan-women/. 

This approach is far more consistent with the Supreme Court’s generous guidance in INS v. Cardoza-Fonseca and the BIA’s own initial implementation of that standard in Matter of Mogharrabi, both of which are routinely ignored at EOIR today. (Indeed, if someone with the exact same facts as Mogharrabi applied today, it’s highly likely that the BIA would invent a host of bogus reasons to send him packing!)  It’s also a much more practical approach that can actually “streamline” the granting of more “first instance” cases by the Asylum Office, greater consistency, and lessening the need for petitions for review and “Circuit specific” strategies. 

While there is no “silver bullet” that will eliminate overnight a backlog built over years of neglect, active mismanagement, and poor performance at EOIR and DOJ, a new, functional, well-respected BIA of asylum expert judges unswervingly committed to due process, fundamental fairness, and best practices is an absolutely necessary first step toward regaining control over our asylum system without sacrificing the legal rights of asylum seekers. The system can’t start eliminating backlog until it ceases doing those things that build unnecessary backlog in the first place. 

In the meantime, this example of “law you can use” from “Sir Jeffrey” promises to be the “gift that keeps on giving” during what is sure to be a difficult upcoming year for refugees, asylum seekers, migrants, and their dedicated attorneys and representatives!

🇺🇸 Due Process Forever!

PWS

12-26-23

⚖️🤯👩🏽‍⚖️👨🏻‍⚖️ AS GARLAND’S BACKLOG HITS 3 MILLION, WAY PAST TIME TO CLEAN HOUSE, 🧹 BRING IN COMPETENT EXPERTS, 🧐 & START IMPLEMENTING THE “MPI PLAN” FOR BACKLOG REDUCTION & DUE PROCESS! — Empower “The Magnificent Seven” To Take The Field & Bring Order From Chaos!

 

Amateur Night
As predicted by experts from the “git go,” AG Merrick Garland’s indolent, half-baked approach to his most important responsibility — bringing justice and functionality to his Immigration Courts, has been a disastrous failure endangering our entire democracy!
PHOTO: Thomas Hawk
Creative Commons
Amateur Night

Here’s the latest report from TRAC documenting how former Federal Judge Merrick Garland’s failure to fulfill his most important duty — reforming and fixing the U.S. Immigration Courts, has built backlog at record paces and undermined our democracy:

https://trac.syr.edu/reports/734

Here’s the “action plan” that’s been publicly available since July 2023 — “Rethinking The U.S. Immigration Court System” — yet largely, and disastrously ignored by Garland, his lieutenants, and the Biden Administration:

https://www.migrationpolicy.org/sites/default/files/publications/mpi-courts-report-2023_final.pdf

Executive Summary

The U.S. immigration courts—and the nation’s immigration enforcement system they support—face
an unprecedented crisis. With a backlog of almost 2 million cases, it often takes years to decide cases. Moreover, the recent growth in the caseload is daunting. In fiscal year (FY) 2022, immigration courts received approximately 708,000 new cases, which is 160,000 more than in any previous year. Such numbers, coupled with the courts’ resource constraints and decision-making processes, ensure that the court system will continue to lose ground.

For asylum cases, which now make up 40 percent
of the caseload, the breakdown is even more dire. Noncitizens wait an average of four years for a hearing on their asylum claims to be scheduled,
and longer for a final decision. Those eligible for protection are thus deprived of receiving it in a timely manner, while those denied asylum are unlikely

to be returned to their countries of origin, having
established family and community ties in the United
States during the intervening years. The combination
of years-long backlogs and unlikely returns lies at the
heart of our broken asylum system. That brokenness contributes to the pull factors driving today’s migration to the U.S.-Mexico border, thereby undermining the integrity of the asylum and immigration adjudicative systems, and immigration enforcement overall.

Many of the factors contributing to the dramatic rise in the courts’ caseload have deep and wide-reaching roots, from long-standing operational challenges in administering the courts to new crises in the Americas that have intensified both humanitarian protection needs and other migration pressures. The scale of these twin challenges has made it more urgent than ever to address them together. In the aftermath of lifting the pandemic-era border expulsion policy known as Title 42 in May 2023, the Biden administration is implementing wide-ranging new border policies and strategies that establish incentives and disincentives linking how migrants enter the United States with their access to the asylum system. But timely, fair decisions are also central to the success of this new regime.

While many other studies have outlined wholesale changes in the immigration court system that only Congress can enact, such legislative action seems unlikely, at least in the near term. Thus, this report calls
for changes that can be made by the Executive Office for Immigration Review (EOIR), the agency within the Department of Justice (DOJ) that houses the immigration courts, as it is presently organized. Because the immigration courts are administrative bodies, the executive branch has considerable latitude in determining their policies and procedures. The changes laid out in this report hold great potential to improve the courts’ performance and, in turn, enhance the effectiveness of the U.S. immigration system more broadly.

Some steps in this direction are already being taken. The Biden administration has streamlined certain important policies and procedures at EOIR. Nonetheless, these courts and the Board of Immigration Appeals

page4image2846206864

2 million

cases in the backlog

About 650

immigration judges nationwide

Less than 500

cases completed per judge in most recent years

page4image2845099584

1

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

(BIA), which reviews appeals from immigration court decisions, fall short of meeting the hallmarks of a well- functioning adjudicatory system: that decisions be accurate, efficiently made, consistent across both judges and jurisdictions, and accepted as fair by the public and the parties in the case.

Related issues of caseload quantity and decision quality have given rise to the difficulties EOIR is confronting. Under the Trump administration, the reopening of thousands of administratively closed cases and increased interior enforcement led to rising court caseloads. And since 2016, increased border crossings have accounted for growing numbers of new cases, many of them involving asylum claims.

Cases are also taking longer to complete. While pandemic-related restrictions played a role in this slowdown, case completion rates had in fact already been declining. In FY 2009, each immigration judge completed about 1,000 cases per year. By FY 2021, the completion rate had decreased to slightly more than 200 cases per year, even as the number of immigration judges grew. Thus, more judges alone are not the answer. Slow hiring, high turnover, and a lack of support staff have resulted in overwhelmed judges whose productivity has decreased as the backlog has grown.

Concerns about the quality of decision-making by immigration courts and the BIA have existed for decades. More than one in five immigration court decisions were appealed to the BIA in FY 2020, and appeals of BIA decisions have inundated the federal courts. Federal court opinions have pointed to errors of statutory interpretation and faulty reasoning when overturning decisions. Policy changes at

the BIA, ever-changing docket priorities from one
administration to the next, and some recent Supreme
Court directives have contributed to the diminished
adjudicative quality. Wide variances in case outcomes among immigration judges at the same court and across different courts around the country further point to quality concerns; for example, the rate at which individual immigration judges denied asylum claims ranged from 1 to 100 percent in FY 2017–22.

EOIR has increasingly turned to technology to manage its dockets, primarily through video-conferencing court proceedings. The COVID-19 pandemic accelerated its use of internet-based hearings. Four important, yet at times competing, considerations are central when evaluating how technology—and particularly video-conferencing tools—are used in immigration proceedings: efficiency, the impact of technical difficulties, security issues, and concerns about due process.

The U.S. Immigration and Customs Enforcement (ICE) attorneys who prosecute removal cases also play an important role in the court system. Their use of prosecutorial discretion, along with judges’ docket management tools, help shape which cases flow through the system, and how.

Legal defense representation—or the lack of it—is a critical issue plaguing the immigration court system. Noncitizens in immigration proceedings, which are civil in nature, are not entitled to free legal counsel, as

The rate at which asylum claims are denied varies widely, from

1% with one judge to

page5image2955219344

100%

with another in FY 2017-22

page5image2948753808

2

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

defendants in criminal proceedings are. But they can face life-changing, and sometimes life-threatening, circumstances when subject to an order of removal from the United States. Studies have repeatedly found that representation in immigration proceedings improves due process and fair outcomes for noncitizens. It also improves efficiency, as represented noncitizens move more quickly through immigration court. Lawyers, accredited representatives, immigration help desks, and legal orientation programs aid some noncitizens through this process. But many more move through complex proceedings pro se (i.e., unrepresented).

Federal funding for representation of noncitizens in removal proceedings is effectively barred. Public funding at the state and local levels has increased the availability of representation for some noncitizens. A large share of representation is provided by nonprofit legal services organizations and pro bono law firm resources. Nonetheless, representation is fragmented and insufficient, given the scale of need.

One element of this system that has seen notable signs of change in recent years has been how border management feeds into the courts’ caseload. The Biden administration began implementing a new
asylum processing rule at the southwest border in June 2022 that aims to ease the growing pressures on immigration courts.1 The rule authorizes asylum officers, who are part of U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security (DHS), to make the final decision in asylum cases instead of immigration judges. Asylum seekers whose claims are denied by an asylum officer can still appeal the decision, but on an expedited timeline. As such, the rule holds the potential to reduce the growth of the immigration court backlog and shorten adjudication times to months instead of years.

Since lifting the Title 42 expulsion policy, the Biden administration has paused implementation of the asylum rule due to competing demands for asylum officer resources. But returning to the rule, and strengthening EOIR’s functioning overall, will be important for managing the flow of cases into the immigration courts and the courts’ ability to keep pace with them. Doing so depends on the court system using technology better, more strategically exercising discretion in removal proceedings, and increasing access to legal representation so that courts deliver decisions that are both timely and fair.

This report’s analysis of the issues facing the nation’s immigration courts and its recommendations for addressing them reflect research and conversations with a diverse group of stakeholders—legal service providers, immigration lawyers and advocates, current and former immigration judges, BIA members and administrators, academics, and other experts who have administered, practiced before, and studied the immigration court system. The report urges EOIR and DHS, in its role as the agency whose decisions and referrals come before EOIR, to work together to:

Strengthen the immigration court system’s management and efficiency

► Schedule new cases on a “last-in, first-decided” basis. Such a reset to the system, which has proven successful in the past, could bring processing times on new cases down to months, rather than years.

1 This rule draws in part on proposals made in an earlier Migration Policy Institute (MPI) report: Doris Meissner, Faye Hipsman, and T. Alexander Aleinikoff, The U.S. Asylum System in Crisis: Charting a Way Forward (Washington, DC: MPI, 2018).

page6image2955637376

3

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

Because this disadvantages cases that have already been waiting for a long time, it should be treated as a temporary, emergency measure alongside policy and procedural reforms that protect fairness and promote efficiency more broadly. Shifting resources back to adjudicating older cases, as timeliness is established with incoming cases, is essential for shrinking the growth and size of the backlog, which should be among the courts’ highest priorities.

  • ►  Terminate cases that do not meet the administration’s prosecutorial guidelines, which focus priorities on felons, security threats, and recent entrants. One approach to this would be to task ICE attorneys with triaging backlog cases to determine which could be fast-tracked for grants of relief or for removal. Such efforts would allow the courts and ICE attorneys to focus on more serious cases, especially those involving criminal charges.
  • ►  Centralize case referrals from DHS. Instead of the current practice of having all three DHS immigration agencies (ICE, USCIS, and U.S. Customs and Border Protection) refer cases separately to EOIR, ICE attorneys should initiate all cases. As de facto prosecutors, they are best positioned to determine the legal sufficiency and priority for moving cases the government has an interest in pursuing.
  • ►  Establish two tiers of immigration judges—magistrate and merits judges—modeled on existing state and federal court systems where judges and staff are assigned to different roles or dockets so that cases move through the adjudication system efficiently and expeditiously.
  • ►  Expand the use of specialized dockets or courts that handle cases involving specific groups of noncitizens or require certain subject matter expertise, such as juveniles, families, reviews of credible fear determinations, cancellation of removal, adjustment of status, and voluntary departure.Restart the asylum officer rule and provide the support needed to implement it

► Establish a dedicated docket for the asylum officer rule’s streamlined appeal proceedings. As the most far-reaching reform the Biden administration has introduced for strengthening management of the asylum and immigration court systems, implementing the rule effectively is key to reducing the pace of caseload growth in the court system and discouraging weak claims.

Upgrade how the courts use technology

► Ensure that technology is used to make immigration courts fairer for everyone involved, such as by holding hearings remotely when parties would be unable to attend an in-person hearing. Special attention should be paid to how the use of technology can affect detained noncitizens and vulnerable populations such as children.

Increase access to legal representation

► Establish a new unit within EOIR devoted to coordinating the agency’s efforts to expand representation. The unit should collaborate with nongovernmental stakeholders to make representation of detained noncitizens a priority and to allow partially accredited representatives— some of whom may be non-lawyers—to appear in immigration court for limited functions.

4

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

  • ►  Develop new and innovative ways to scale up representation by coordinating with lawyers who take responsibility for specific aspects of cases or non-lawyers who are specially trained and supervised
    to do so. Legal service providers should build a multi-stage, collaborative online system that enables representation by lawyers or non-lawyers in specific stages of a case for which they have the requisite expertise (e.g., filing forms, attending bond or master calendar hearings, or seeking relief ). This approach requires creating e-files for cases, with files moving from one representative or provider to another as cases progress, resulting in both expert representation at each stage and greater efficiency in moving cases forward overall.
  • ►  Encourage efforts by state and local governments to provide and/or increase funding to support representation, especially given current restrictions on federal funding of representation in most removal cases.

Despite efforts by successive administrations to bring
the immigration court system’s unwieldy caseload
under control and to improve the quality of its
decision-making, the courts remain mired in crisis.
And while many of the most pressing problems have
roots that stretch back decades, they have in recent
years reached a breaking point. The measures
proposed in this report hold the potential to reduce
case volumes, increase the pace of decision-making,
and improve the quality of adjudications. They would
also mitigate migration pull factors that result from
years-long waits for decisions. The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.

page8image2847247216

The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement
and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.

BOX 1
About the Rethinking U.S. Immigration Policy Project

This report is part of a multiyear Migration Policy Institute (MPI) project, Rethinking U.S. Immigration Policy. At a time when U.S. immigration realities are changing rapidly, this initiative has been generating a big- picture, evidence-driven vision of the role immigration can and should play in America’s future. It provides research, analysis, and policy ideas and proposals—both administrative and legislative—that reflect these new realities and needs for immigration to better align with U.S. national interests.

The research, analyses, and convenings conducted for MPI’s Rethinking initiative address critical immigration issues, which include economic competitiveness, national security, and changing demographic trends, as well as issues of immigration enforcement and administering the nation’s immigration system.

To learn more about the project and read other reports and policy briefs generated by the Rethinking U.S. Immigration Policy initiative, see bit.ly/RethinkingImmigration.

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

Read the full report at the link.

Not the first time I’ve said this, but it’s time for “Amateur Night @ The Bijou” (“A/K/A Merrick Garland’s failed EOIR”) to end! Reassign the EOIR senior management folks who have demonstrated “beyond any reasonable doubt” their inability to provide dynamic, due process with efficiency management and visiononary leadership and to solve pressing problems. (This includes the inability to stand up and “just say no” to bonehead “gimmicks” like Garland’s due-process-denying, quality diminishing, backlog-building, “expedited dockets”). 

It’s not an exaggeration to say that the anti-asylum, anti-human rights, anti-reality charade now playing out in Congress is driven in large part by Garland’s three-year failure to do his job by getting functionality and due process focused leadership into EOIR.

Bring in a competent, expert executive team, hand them the MPI Plan, and empower them to move whatever “bureaucratic mountains” need to be moved to get results, including, but not limited to, major personnel changes at the BIA and in Immigration Courts and taking a “hard line” with counterproductive performance by DHS (actually “just a party” before the Immigration Courts, NOT “their bosses!”) 

Bring in these experts:

  • Judge (Retired) Dana Leigh Marks
  • Professor Stephen Yale-Loehr
  • Dean Kevin Johnson
  • Michelle Mendez (NIPNLG)
  • Professor Michele Pistone
  • Jason “The Asylumist” Dzubow
  • Wendy Young (KIND)

Task this “Magnificent Seven” — folks with centuries of practical expertise and creative ideas for actually solving humanitarian problems (rather than making them worse, as per the ongoing travesty on the Hill) — with turning around the EOIR disaster; support and empower them to achieve results and to reject politicized bureaucratic meddling from DOJ and elsewhere! Make the long-unfilled “promise of INS v. Cardoza-Fonseca”  — a legitimate, properly generous, practical, efficient asylum and refugee adjudication system that complies with international and domestic law and simple human decency — a reality!

This is about rebuilding America’s most important and consequential court system, NOT running an “government agency!”

This is also the “demand” that Congressional Dems SHOULD be making of the Biden Administration, instead of engaging in disgraceful (non) “bargaining” with GOP nativists that seek an end to asylum and an increase to human suffering and ensure continuing humanitarian disaster at our borders!

🇺🇸 Due Process Forever!

PWS

12-19-23

🤯☠️🤮 BAD JUDGING TRIFECTA: BIA’s Poor Performance Tries The Patience Of The Ultra-Conservative 5th Circuit!

Three LemonsBy Auguste Renoir (1918} Public Realm
Three Lemons
By Auguste Renoir (1918}
Public Realm
The BIA pulls three lemons on an epic judging fail that left a sour taste in the mouths of Fifth Circuit Judges!

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/big-reversal-and-victory-at-ca5-argueta-hernandez-ii

On July 10, 2023, a Fifth Circuit panel dismissed Mr. Argueta-Hernandez’ petition for review for lack of jurisdiction, 73 F.4th 300.

On Dec. 5, 2023 the panel (Higginbotham, Graves, and Douglas) granted rehearing, granted the petition, vacated and remanded:

“Although we owe deference to the BIA, that deference is not blind. Here, where the BIA misapplied prevailing case law, disregarded crucial evidence, and failed to adequately support its decisions, we are compelled to grant the petition for review, vacate the immigration court decisions, and remand to BIA for further proceedings.”

[Hats way off to Alison Lo, Jonathan Cooper and Chuck Roth!]

Alison Lo, Esquire
Alison Lo, Esquire
Jonathan Cooper, Esquire
Jonathan Cooper, Esquire
Chuck Roth, Esquire
Chuck Roth, Esquire

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

Congrats to this all-star NDPA litigation team. Once again, the expertise and scholarship in asylum and immigration law is on the “outside,” the NDPA, rather than at EOIR where it is so much needed!

Judge Higginbotham is a Reagan appointee. Judge Graves was appointed by Obama. Judge Douglas is a Biden appointee.

Here’s what the “coveted trifecta of bad judging” looks like:

The BIA:

1) misapplied prevailing case law,

2) disregarded crucial evidence, and

3) failed to adequately support its decisions!

My only question is: Did they manage to get the ”A#” right?

Golden nugget: The 5th Circuit recognizes that under the Supremes’ decision in Cardoza-Fonseca: “A ‘reasonable degree’ [for establishing a “well founded fear”] means a ten percent chance.” This “seminal rule” is violated by BIA panels and Immigration Judges across the nation on a daily basis. It is also widely ignored by many Circuit panels.

Unlike the BIA, Judge Higgenbotham carefully and clearly explains how threats other than physical injury can amount to persecution — another “seminal rule” that too many EOIR adjudicators routinely ignore.

In sharp contrast to the BIA’s intentional “butchering” of the “mixed motive” doctrine in Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023), Judge Higgenbotham correctly articulates the meaning of “at least one central reason.” See https://immigrationcourtside.com/2023/12/04/☠️🤯-bia-trashes-normal-legal-rules-of-causation-jettisons-4th-cir-precedent-to-deny-family-based-psg-case-the-latest-anti-asylum-znger-from-falls-church-famil/.

He states:

By characterizing MS-13’s threats against Argueta-Hernandez and his family as
solely extortion, BIA disregards that he needed only to present “‘some
particularized connection between the feared persecution’” and the
protected ground in which his application for relief relies. . . . Such a rigorous standard would largely render nugatory the Supreme Court’s decision in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).”).

Precisely! Ignoring Cardoza-Fonseca and their own binding precedent in Matter of Mogharrabi is what the BIA does frequently in “manipulating the nexus requirement” to deny meritorious claims to qualified refugees who face real harm! It’s all part of the toxic anti-asylum bias and “any reason to deny culture” that still permeates EOIR under Garland!

The BIA is not allowed to “presume,” as they effectively did in M-R-M-S-, the lack of qualifying motivation in “family based” psg cases and place an undue burden on the respondent to “prove” otherwise. 

The panel also reams out the BIA for failure to follow basic rules and precedents requiring a separate CAT analysis.

Unlike the legal gobbldygook, obfuscation, doublespeak, and “canned” language that plagues many BIA opinions, Judge Higginbotham offers a clear, understandable, clinical explanation of asylum law and how it should be applied to what is actually a recurring situation in asylum law! 

Reading this very clear opinion, I couldn’t help but feel that it was a panel of “general jurisdiction” Federal Judges from a so-called “conservative Circuit” who understood the complexity and nuances of asylum law, while the BIA Appellate Judges were the “rank amateurs.” This reflects a criticism oft made by my Round Table colleague Hon. “Sir Jeffrey” Chase  that EOIR’s asylum training is grotesquely substandard — far below that readily available in the “private/NGO/academic” sector! What possible excuse could there be for this ongoing travesty at DOJ?

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges. His consistent, outspoken criticism of EOIR’s poor asylum training is proving all too true on a daily basis!

 

AG Garland continues to show a truly (and disturbingly) remarkable tolerance for poor judicial performance by his subordinates at the BIA. At the same time, he shows little, if any, concern for the deadly devastating impact of that bad judging on human lives and the way it corrodes our entire legal system!

The glaring, life-threatening legal and operational problems at EOIR are solvable. We should all be asking why, after three years in office, a Dem Administration has made such feeble efforts to bring long overdue leadership, substantive, and operational changes to “America’s worst court system?” Well into what was supposed to be a “reform” Administration, EOIR remains a steeped in the “culture of denial and bias against asylum seekers” actively furthered by the Trump Administration and NOT effectively addressed by Garland (although he concededly has made a few improvements)!

🇺🇸 Due Process Forever!

PWS

12-06-23

🇺🇸⚖️🗽🧑‍⚖️👨🏾‍⚖️ ATTENTION NDPA: BETTER COURTS MEAN A BETTER AMERICA, FROM THE “RETAIL LEVEL” TO THE SUPREMES! — The Future Immigration Courts Are Being Formed Today — We Need NDPA All-Stars 🌟 On The Bench! — You Can’t Be Selected If You Don’t Apply (My History Notwithstanding)!  

I want you
Don’t just complain about the awful mess @ EOIR! Get on the bench and do something about it!
Public Domain

EOIR is looking for “many judges in many locations:”

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/many-immigration-judge-positions-open

https://www.justice.gov/legal-careers/job/immigration-judge-26

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

Some folks who should be applying for these jobs tell me they “couldn’t work with such an unfair law.” I say “poppycock.” To a large extent, the law and the unfair results are only as bad as EOIR judges choose make them.

But, it doesn’t have to be that way! For example, you can choose to:

  • Apply Cardoza-Fonseca, Mogharrabi, Kasinga, A-R-C-G-, and other precedents favorable to applicants fairly and robustly;
  • Honestly apply the presumption of future persecution set forth in 8 CFR 208.13 and actually put the burden on DHS to rebut it with evidence, not mere conjecture;
  • Carefully consider the possibility of a discretionary grant of asylum under the regulations (“so-called Chen grant”), even where the government rebuts the presumption of a well-founded fear; 
  • Make realistic, practical, proper credibility determinations based on “the totality of the circumstances and all relevant factors;”
  • Require only “reasonably available” corroborating evidence;
  • Actually follow the legal principle that credible testimony, in an of itself, can be enough to grant relief; 
  • Apply the “reasonableness of internal relocation” regulation set forth at 8 CFR 208.13(b)(3) honestly;
  • Fairly apply the properly generous interpretation of the “well founded fear” standard required by the Supremes in Cardoza and described by the BIA in Mogharrabi to cases where there is no past persecution;
  • Incorporate the latest scholarship on “country conditions,” rather than “cherry picking” DOS Country Reports looking for ways to deny;
  • Use the latest body of scholarship on “best interests of the child” in deciding cancellation of removal for non-LPRs;
  • Schedule cases in a reasonable manner, in consultation with both counsel, to eliminate endemic “aimless docket reshuffling;”
  • Take measures to promote and facilitate representation of individuals, rather than throwing up roadblocks; 
  • Make ICE counsel do their jobs, rather than doing it for them, particularly in cases where ICE unilaterally declines to appear at the merits hearing; 
  • Use all of your practical skills and knowledge of the law and practice to solve problems and promote efficiency;
  • Consider all interpretations available to you, not just “defaulting” to the one offered by ICE;
  • Make careful, analytical, findings of fact, rather than just glossing over facts favorable to the individuals and over-emphasizing or fabricating the facts most favorable to DHS;
  • Make your “courtroom a classroom” where exceptional scholarship, due process, fundamental fairness, teamwork, practical solutions to human problems, and best practices are promoted and institutionalized.

You might well find, like I did, that being guided by Cardoza and Mogharrabi, sticking to your guns, providing full due process, and faithfully following the law actually leads to grants of relief in the majority of individual hearings. Notably, ICE seldom appealed my grants, and I was rarely reversed by the BIA, no matter who appealed. 

I actually did better with my former BIA colleagues as an IJ than I had during my eight years of service on the Board. Indeed, as I sometimes quipped, as an IJ, I finally got that which my colleagues often denied me during my tenure as BIA Chair and an Appellate Judge/BIA Member: deference! 

Worried about “life after EOIR!” Yes, there is such a thing! 

And, a quick survey of our Round Table of Former Immigration Judges and BIA Members 🛡⚔️ would show everything from partners and of counsel in law firms, professors and educators, major NGO supervisors and attorneys, community activists, consultants and coaches, to those, like me, who claim to be “fully retired and just enjoying life.” The Round Table actually has great credibility with the Federal Courts and the media because, unlike sitting judges and their “handlers,” we can actually speak truth to power outside the courtroom!

Whether you serve for a year or the rest of your career, what you learn as an EOIR judge if you pay attention, will give you a “leg up” and otherwise unobtainable practical knowledge of how America’s most important, yet least understood, court system actually works (or not)!

Every week, almost every day in fact, we see in Federal Court reversals and remands to EOIR and reports from practitioners about unpublished successes the fundamental difference that great litigation and equally “great judging” can make in reaching correct results! Making it happen every day, in every court, at the “retail level,” rather than counting on the uncertainties and limitations of Circuit review, will save lives and change the delivery of justice throughout America!

NDPAers, the “EOIR train” is leaving the station. 🚅 As a nation, we can’t afford the “best and the brightest” of today’s legal profession not to be on board! So, get those “many applications” in for those “many jobs” and let’s see if we can fix this “life or death system” from both the inside and the outside! We won’t know if we don’t try!

🇺🇸 Due Process Forever!

PWS

09-27-23

🏴‍☠️👎🏼🤮 JUSTICE’S UNJUST “COURTS!” — Recent Reports Highlight Horribly Failed System —Asylum Free Zones, Unqualified Prosecutor-Judges, Deadly Denials, Blatant Information Imbalance, Dehumanizing Treatment, Poor Access To Counsel, Docket Mayhem, Unrealistic Timelines, Biased Outcomes, Indifference To Human Life, Unaccountability, Among The Myriad Problems Flagged By Those Forced To Deal With Garland’s Ongoing Mockery Of Due Process! — EXTRA! — How Poor Legal Performance @ DOJ Skews The Entire Immigration Debate!

injustice
Injustice
Public Realm
Dems spend lots of time whining about the destruction of the Federal Judiciary by GOP right-wing extremists. However, after two years in charge, they have done little to bring due process, fundamental fairness, and judicial expertise to America’s worst courts — the Immigration Courts — which they totally control!

 

Austin Kocher, Ph.D.
Austin Kocher, Ph.D.
Research Assistant Professor
TRAC-Syracuse
PHOTO: Syracuse U.

Two items from Professor Austin Kocher on Substack:

Asylum Seeker Killed in Guatemala after Omaha Immigration Judge Ordered Him Deported

Omaha is now the toughest court in the country for asylum seekers, MPI hosts discussion on immigration courts in crisis, interview with an immigration judge, and more.

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Asylum Seeker Killed in Guatemala after Omaha Immigration Judge Ordered Him Deported austinkocher.substack.com • 1 min read

https://www.linkedin.com/feed/update/urn:li:activity:7086002474968313856?updateEntityUrn=urn%3Ali%3Afs_feedUpdate%3A%28V2%2Curn%3Ali%3Aactivity%3A7086002474968313856%29

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New Research by AILA Reveals Anatomy of an Asylum Case + Online Event

Even the best attorneys require 50-75 hours over several months to complete an asylum case. The Biden admin’s attempts to speed up asylum cases may be ignoring this reality.

…see more

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New Research by AILA Reveals Anatomy of an Asylum Case

https://www.linkedin.com/feed/update/urn:li:activity:7086001618898296832?updateEntityUrn=urn:li:fs_feedUpdate:(V2,urn:li:activity:7086001618898296832)

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Lauren Iosue
Lauren Iosue
L-3 & NDPA Member
Georgetown Law
PHOTO: Linkedin

And, this from Lauren Iosue, Georgetown Law L-3 on LinkedIn.

Lauren Iosue

View Lauren Iosue’s profile

• 1st

J.D. Candidate at Georgetown University Law Center

3d •

Through my internship at the Florence Immigrant and Refugee Rights Project, I observed master calendar hearings in the detained docket in the Florence Immigration Court. I was back in Florence, Arizona, because the court itself is located within the barbed wire of the detention center. Observing the Florence Immigration Court emphasized how dehumanizing removal proceedings can be for detained immigrants. Master calendar hearings are often immigrants’ first interaction with the Court. To start, a guard brought a group of men in jumpsuits to the courtroom and lined them up. The judge read them their rights and then called them individually to discuss their case. Twice I witnessed the wrong person being brought into court where they sat through proceedings until the guards realized and switched them out for the correct person.

The vast majority of Respondents in removal proceedings are unrepresented. There is a blatant information imbalance in immigration court when the immigrant is unrepresented. Oftentimes, pro se detained immigrants do not have access to the resources represented or released Respondents have during their proceedings. Respondents may not know their legal options unless organizations like the Florence Project can speak to them before their hearing and provide them with pro se information packets or represent them. During the hearing, the men did not even have a pen and paper to take notes. Meanwhile, the immigration judge and government attorney have access to technology and a wealth of experience to pull from to make legal arguments.

This is just one example of many – my colleagues and I also observed translation issues and pushback against some men who wished to continue fighting their case. Above all, I’ll leave with this very simple observation: the judge and guards called each man up by his court docket number before his name. If we are to support and uphold the dignity of all people, we must do so especially in systems that look to strip it from them. Providing immigrants with access to a lawyer, if they’d like one, can ensure that people have access to information that allows them to make informed decisions about their case. The Florence Project is one of the organizations working tirelessly to expand access to representation throughout Arizona, and I hope to continue this work after graduating from Georgetown University Law Center next year. #EJAFellowUpdate | Equal Justice America

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Congrats to Lauren Iosue, and thanks for becoming a member of the NDPA! 😎 The scary thing: As an L-3, Lauren appears to have more “hands on” Immigration Court experience and a far deeper appreciation of the material, sometimes fatal, flaws in the EOIR system, than Garland and his other “top brass” in the DOJ responsible for operating and overseeing this tragic mess! 

Why isn’t “real life” immigration/human rights experience representing individuals in Immigration Court were an absolute requirement for appointment to AG, Deputy AG, Associate AG, Solicitor General, and Assistant AG for Civil (in charge of OIL) in any Dem Administration, at least until such time as the Immigration Courts become an Article I Court removed from the DOJ?

30-years ago, when I was at Jones Day, we were budgeting a minimum of 100 hours of professional time for a pro bono asylum case! That was before the “21st century BIA” added more unnecessary, artificial technicalities to make it more difficult for asylum seekers to win. It’s not “rocket science!” 🚀

Lucy McMillan ESQUIRE
Lucy McMillan ESQUIRE
Chief Pro Bono Counsel
Arnold & Porter
Washington, D.C.
PHOTO: A&P

All Garland would have to do is reach back into his “big law” days at Arnold & Porter (“A&P”). He should pick up his cell phone and call Lucy McMillan, the award-winning Chief Pro Bono Counsel @ A&P.  Ask Lucy what needs to change to get EOIR functioning as a due-process-focused model court system! Better yet, reassign upper “management” at EOIR, and hire Lucy to clean house and restore competence, efficiency, and excellence to his currently disgracefully-dysfunctional “courts!”

As Austin’s posts and the reports he references show, Garland’s indolent, tone-deaf, mal-administration of the Immigration Courts is a national disgrace that undermines democracy and betrays core values of the Democratic Party! How does he get away with it? Thanks to Austin, AILA, Lauren, and others exposing the ongoing “EOIR charade” in a Dem Administration! 

As shown by recent “Courtside” postings about the “Tsunami” 🌊 of Article III “rejections” of lousy BIA decisions, throughout America, many, many more asylum cases could be timely granted with a properly well-qualified, expert BIA setting precedents and forcing judges like those in Omaha to properly and generously apply asylum law or find other jobs! Maximum protection, NOT “maximum rejection,” is the proper and achievable (yet unrealized) objective of asylum laws!

Asylum law, according to the Supremes and even the BIA is supposed to be generously and practically applied — so much so that asylum can and ordinarily should be granted even where the chances are “significantly less” than probable. See Matter of Mogharrabi, 19 I & N Dec. 439, 446 (BIA 1987). 

The problem is that the BIA and EOIR have never effectively implemented and followed the Mogharrabi standard. In recent years, particularly during the Trump debacle, they have moved further than ever away from this proper legal standard while still giving it lip service! Clearly, the IJs in Omaha and other “Asylum Free Zones” are operating outside the realm of asylum law with deadly and destructive consequences. Yet, Garland, a former Federal Judge himself, permits it! Why?

The assumption that most asylum seekers who pass credible fear should ultimately lose on the merits is false and based on intentionally overly restrictive mis-interpretations and mis-applications of asylum law! It’s a particular problem with respect to asylum seekers of color from Latin America and Haiti — a definite racial dimension that DOJ and DHS constantly “sweep under the carpet.” Because of the extraordinarily poor leadership from EOIR, DOJ, and DHS, this “fundamental falsehood of inevitable denial” infects the entire asylum debate and materially influences policies.

A dedicated long-time “hands-on” asylum expert, someone who actually met some of the “Abbott/DeSantis busses,” said that over 70% of those arriving from the border had potentially grantable asylum claims. That’s a far cry from the “nobody from the Southern border will qualify” myth that drives asylum policy by both parties and has even been, rather uncritically, “normalized” by the media.

Fixing EOIR is a prerequisite to an informed discussion of immigration and development of humane, rational, realistic immigration policies. That would be laws and policies based on reality, not myths, distortions, and sometimes downright fabrications.

Competent representation is also an essential part of fixing EOIR. There are ways to achieve it that Garland is ignoring and/or inhibiting. See, e.g., VIISTA Villanova. No excuses!

🇺🇸Due Process Forever,

PWS

07-17-23

⚖️🧑‍⚖️ IMMIGRATION COURTS IN CRISIS = DENIAL OF DUE PROCESS FOR INDIVIDUALS  — NY Times Article Quoting Round Table’s Judge Eiza Klein & Charles Honeyman, Also NDPA Officials, Judge Mimi Tsankov and Judge Samuel Cole! — PLUS BONUS COVERAGE: My Latest “Mini Essay” — “EOIR ABUSES ASYLUM SEEKERS”

Hon. Eliza Klein
Eliza C. Klein, a retired immigration judge, said the asylum case backlog “creates a second class of citizens.”Credit…Taylor Glascock for The New York Times

https://www.nytimes.com/2023/05/12/us/politics/immigration-courts-delays-migrants-title-42.html?smid=nytcore-ios-share&referringSource=articleShare

Zolan Kanno-Youngs reports for the NYT:

. . . .

Eliza C. Klein, who left her position as an immigration judge in Chicago in April, said the latest increase in illegal border crossings will strain the understaffed work force as they prioritize migrants who crossed recently.

That will leave some older cases to languish even longer, she said.

“This is a great tragedy because it creates a second class of citizens,” Ms. Klein, who started working as an immigration judge in the Clinton administration, said of those immigrants who have been waiting years for an answer to their case. The oldest case Ms. Klein ever adjudicated had been pending in the court for 35 years, she said.

“It’s a disgrace,” Ms. Klein said. “My perspective, my thought, is that we’re not committed in this country to having a just system.”

While crowds of migrants continued to seek refuge in the United States after the lifting of Title 42, U.S. officials said the border remained relatively orderly. About 10,000 people crossed the border on Thursday, a historically large number, but that dropped significantly to about 6,200 on Friday.

Tens of thousands of migrants continued to wait in makeshift camps on both sides of the border for a chance to request sanctuary in the United States. The administration remained concerned about overcrowding; Border Patrol held more than 24,000 migrants in custody on Friday, well over the agency’s maximum capacity of roughly 20,000 in its detention facilities.

. . . .

Mimi Tsankov, the president of the National Association of Immigration Judges, said that to truly address the backlog, the Biden administration would need to do more than simply hire more judges. She said that the government should increase funding for better technology and bigger legal teams, and that Congress should reform the nation’s immigration laws.

“The immigration courts are failing,” said Samuel B. Cole, the judge association’s executive vice president. “There needs to be broad systemic change.”

. . . . .

Judge Charles Honeyman, who spent 24 years as an immigration judge and retired in 2020, said he came away from his job believing the United States would need to do a better job of deterring fraud while protecting those who would be harmed in their home country.

When handling an asylum case, Mr. Honeyman said he would assess the person’s application and examine the state of their home country by reading reports from the State Department and nonprofits. Many of the applicants lacked attorneys; he believes some cases that he denied might have turned out differently if the migrants had had legal representation.

In trying to root out fraud, he would compare a person’s testimony with the answers they had given to an asylum officer or Border Patrol agent.

. . . .

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Read the full article at the link.

 

EOIR ABUSES ASYLUM SEEKERS — The Problem Goes Deeper Than The Number Of Judges: Quality & Culture Matter!

By Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Courtside Exclusive

May 16, 2023

While the NYT article notes that the majority of asylum cases are eventually denied on the merits, this data is often presented in a misleading way by the Government, and unfortunately, sometimes the media. According to TRAC Immigration, during the period Oct 2000 to April 2023, approximately 43% of asylum seekers who received a merits decision were granted asylum or some other type of relief. Approximately 57% were denied. https://trac.syr.edu/phptools/immigration/asylum/

Even in an overall hostile system, where individuals are often required to proceed without lawyers, and grant/denial rates among Immigration Judges vary by astounding levels (so great as to present prima facie due process issues), asylum seekers succeed on the merits of their claims at a very respectable rate. In a properly staffed and administered system where the focus was on due process and fundamental fairness for individuals, that number would almost certainly be substantially higher. 

Moreover, the data suggests that toward the end of the Obama Administration and during the entire Trump Administration, the asylum system was improperly manipulated to increase denials. 

For instance, in FY 2012, approximately 55% of asylum claims decided by EOIR on the merits were granted. https://trac.syr.edu/immigration/reports/306/. While there was no discernible worldwide improvement in human rights conditions in the following years, IJ asylum grant rates cratered during the Trump years, reaching a low of 29% in FY 2020, barely half the FY 2012 level. https://trac.syr.edu/immigration/reports/668/#:~:text=While%20asylum%20grant%20rates%20declined,after%20President%20Biden%20assumed%20office.%20That%E2%80%99s%20a%20decline%20of%20nearly%2050%%20since%20the%20FY%202012%20high.

I think there are three reasons for the precipitous decline in asylum grant rates, largely unrelated to the merits of the claims. First, Attorneys General Jeff Sessions and Bill Barr overruled some of the leading administrative precedents supporting grants of asylum. In the process, they made it crystal clear that they considered Immigration Judges to be their subordinate employees within the political branch of Government and that denial, deportation, and assistance to their “partners” at DHS Enforcement (actually DHS is a party before EOIR, not a “partner”) were the preferred results at EOIR.

Second, in greatly expanding the number of Immigration Judges, Sessions and Barr appointed almost exclusively from the ranks of prosecutors and government attorneys, even elevating an inordinate number of individuals with no immigration and human rights experience whatsoever. Not only were well-qualified individuals with experience representing individuals in Immigration Court largely passed over and discouraged from applying, but some of the best Immigration Judges quit or retired prematurely as a matter of conscience because of the nakedly anti-immigrant pro enforcement “culture” promoted at EOIR. 

Additionally, the nationwide appellate court and precedent setter, the BIA, was expanded and “packed” with some Immigration Judges who denied virtually all of the asylum cases coming before them and had reputations of hostility to the private bar and asylum seekers. Remarkably, Attorney General Garland has done little to address this debilitating situation at the BIA.

Third, since the latter years of the Obama Administration, when a vastly overhyped “border surge” took place, political officials of both parties have improperly “weaponized” EOIR as a “deterrent” to asylum seekers, focusing on expeditious denials of asylum rather than the due process and expert tribunal functions the agency was supposed to serve. The result has been a “culture of denial and deportation” with particular emphasis on finding ways to “say no” to women and individuals of color seeking asylum.

The NYT Article also mentions that asylum merits decisions require a higher standard of proof than “credible fear determinations.” That’s true. But the suggestion that the standards are much higher is misleading. In fact, the standards governing merits grants of asylum before the Asylum Office and EOIR are supposed to be extremely generous. 

In the seminal case, INS v. Cardoza-Fonseca, the Court said that “well-founded fear” is a generous standard, one that could be satisfied by a 10% chance of persecution. In implementing this holding, the BIA found in Matter of Mogharrabi that asylum could be granted even where the chances of persecution were substantially less than probable.

There is as also a regulation, 8 C.F.R. 208.13, issued under the Bush I Administration, that creates a rebuttable presumption of future persecution based on past persecution.

The problem is that none of these generous and remedial provisions relating to asylum has ever been properly, consistently, and uniformly applied within EOIR. As someone who during my time on the bench took these standards to heart, I found that a substantial majority of merits asylum cases coming before me could and should be granted under a proper application of asylum law.

Consequently, I am skeptical of judges who deny virtually all asylum claims. Likewise, I question the claims by political officials of both parties who pretend, without actual knowledge, that almost all asylum applicants at the border are “mere economic migrants” who deserve to be quickly and summarily removed. 

Actually, under some circumstances, severe economic hardships can amount to persecution. Moreover, under the legally required “mixed motive” analysis for asylum, an economic aspect does not automatically obviate other qualifying grounds.

So, at its root, “credible fear” is actually an even more generous application of what is already supposed to be (but often isn’t in reality) a very generous standard for asylum. The alleged “disconnect” between the number of individuals found to have credible fear and the number actually granted asylum on the merits appears to be more a function of defective and overly restrictive decision-making at EOIR than it is of unjustified generosity of Asylum Officers screening for credible fear. It’s also important to remember that at the credible fear stage, individuals haven’t had time to marshal the substantial corroborating evidence eventually required (some would say unrealistically and unreasonably) in formal merits asylum hearings before EOIR.  

Finally, just aimlessly increasing the number of Immigration Judges, without solving the systemic legal, logistical, management, quality control, training, and “cultural” problems infecting EOIR creates its own set of new problems. 

Recently, a veteran practitioner before EOIR wrote the following:

In about eleven years, our local DMV went from twelve (12) judges in Baltimore and Arlington in 2012 to a hundred (100) judges in 2023 (8 BAL, 18 HYA, 30 WAS, 9 FCIAC, 14 RIAC, 21 STE). That’s an increase of 733.33%. This seismic expansion has resulted in many attorneys being overscheduled for individual hearings, which has an adverse effect on our clients, our ethical obligations, due process, and mental health.

Well-prepared attorneys, many serving pro bono or “low bono,” are absolutely essential to due process and fundamental fairness in Immigration Court, particularly in cases involving asylum and other forms of protection. For EOIR to schedule cases in a manner that does not take into consideration the legitimate needs and capacities of those practicing before their courts is nothing short of malpractice on the part of DOJ leadership.

There is a silver lining here. The EOIR judicial hiring program gives NDPA stars a chance to get on the bench at the retail level level, bring much needed balance and perspective, and to develop the credentials for future Article III judicial appointments. Since change isn’t coming “from the top,” we need to make it happen at the “grass roots level!” Keep those applications coming!

🇺🇸Due Process Forever!

PWS

05-16-23

        

 

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

Star Chamber Justice
“Justice”
Star Chamber
Style

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

By

Paul Wickham Schmidt

Retired U.S. Immigration Judge

“Immigration 101”

Renaissance Institute

 Notre Dame University of Maryland in Baltimore

April 18, 2023

 

I.  INTRODUCTION

 

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

 

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

 

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

 

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

 

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

 

II. CAREER SUMMARY

 

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

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

III. THE DUE PROCESS VISION

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

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

 

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

 

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

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

 

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

 

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

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

 

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

 

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

 

IV. THE ROLE OF THE IMMIGRATION JUDGE

 

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

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

 

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

 

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

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

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

 

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

 

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

 

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

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

 

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

V. RECLAIMING THE VISION 

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

 

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

 

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

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

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

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

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

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

 

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

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

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

 

 

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

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

 

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

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

VI. GETTING INVOLVED  

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

    

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

 

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

VII. CONCLUSION 

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

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

 

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

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

 

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

 

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

 

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

 

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

 

Thanks again for inviting me and for listening. 

  

(04/19/23) 

 

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

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

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

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

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

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

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

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

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

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

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

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

[14] See 8 C.F.R. § 1208.13(b)(1).

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

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

© Paul Wickham Schmidt 2023, All Rights Reserved

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

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

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

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

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

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

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

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

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

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

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

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

🇺🇸 Due Process Forever!

PWS

04-19-23

⚖️🗽🇺🇸 SPEAKING OUT: “MATTHEW AT THE BORDER: ACTING ON THE MESSAGE OF CHAPTER 25”

MATTHEW 25
Holy card ( 1899 ) showing an illustration to the Gospel of Matthew 25, 34-36 – rear side of an obituary.
Wolfgang Sauber
Creative Commons Attribution-Share Alike 4.0

MATTHEW AT THE BORDER: ACTING ON THE MESSAGE OF CHAPTER 25

By Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

 Westminster Presbyterian Men’s Breakfast

April 14, 2023

I. INTRODUCTION: THE MESSAGE OF MATTHEW 25

Welcome. Thank you for inviting me and for coming out this morning. 

Of course, I want to hold my friend and fellow “Badger” Dudley, the Men’s Group, honored guests, and anybody else of any importance whatsoever harmless for my remarks this morning. While I have borrowed liberally from the ideas and inspirations of others, I take sole responsibility for the views expressed in my presentation.

I don’t usually start my talks with a Biblical quote. But, since this is a church men’s breakfast, we are in the holy season, and my topic is integrally tied to Judeo-Christian values, I want to read from Matthew 25, verses 34-46:

34 Then the king will say to those at his right hand, “Come, you that are blessed by my Father, inherit the kingdom prepared for you from the foundation of the world;

35 for I was hungry and you gave me food, I was thirsty and you gave me something to drink, I was a stranger and you welcomed me,

36 I was naked and you gave me clothing, I was sick and you took care of me, I was in prison and you visited me.’

37 Then the righteous will answer him, “Lord, when was it that we saw you hungry and gave you food, or thirsty and gave you something to drink?

38 And when was it that we saw you a stranger and welcomed you, or naked and gave you clothing?

39 And when was it that we saw you sick or in prison and visited you?’

40 And the king will answer them, “Truly I tell you, just as you did it to one of the least of these who are members of my family, you did it to me.’

41 Then he will say to those at his left hand, “You that are accursed, depart from me into the eternal fire prepared for the devil and his angels;

42 for I was hungry and you gave me no food, I was thirsty and you gave me nothing to drink,

43 I was a stranger and you did not welcome me, naked and you did not give me clothing, sick and in prison and you did not visit me.’

44 Then they also will answer, “Lord, when was it that we saw you hungry or thirsty or a stranger or naked or sick or in prison, and did not take care of you?’

45 Then he will answer them, “Truly I tell you, just as you did not do it to one of the least of these, you did not do it to me.’

46 And these will go away into eternal punishment, but the righteous into eternal life.”

II. OVERVIEW

The last time I was with you, five years ago, I described the mess and rampant unfairness in our immigration system. I’d like to say that those times are behind us: That we have restored the rule of law, enhanced due process, and acted, as a nation, in a manner that showed adherence to those passages from Matthew.

But, unfortunately, I can’t do that. Not yet! Despite many promises to fix the mistakes of the past and to do better in the future, and a few successes, the current Administration has, in my view, disturbingly failed to deliver on our obligation to treat “the stranger” and “the other” — in other words, some of “the least of these” — fairly and with human dignity. Nowhere is this more harmful, discouraging, and threatening to both human life and our democracy than at our borders. 

The most vulnerable among us, asylum seekers, who ask for little other than to be treated fairly and humanely under our laws, are still being victimized by dysfunctional bureaucracies more intent on deterring and rejecting than on protecting!

I’m going to tell you truths that some find uncomfortable; briefly summarize our current and proposed “built to fail system” at the borders; and tell your why it doesn’t have to be this way! 

I’m going to share with you some ideas from legal and humanitarian experts on how our nation could do a far better job for ourselves and for refugees just by more creatively, boldly, and courageously exercising authorities under existing law. In other words how we as a nation could reflect on Jesus’s parable in Matthew and make it a reality.

III. UNCOMFORTABLE TRUTHS

Let me tell you a few truths that the “false prophets” find uncomfortable.

First, there is an internationally recognized right to seek asylum. Our law states that any person “who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including [someone] who is brought to the United States after having been interdicted in international or United States waters), irrespective of such [person’s] status, may apply for asylum.” [INA, 208(a)].

Second, according to the 5th Amendment to our Constitution, “no person . . . shall be . . .  deprived of life, liberty, or property without due process of law.” Note that it says “person,” not citizen or “lawfully present non-citizen.”

Third, according to our Supreme Court, asylum laws are to be applied generously, so that even those with just a 10% chance of suffering persecution could qualify. [INS v. Cardoza-Fonseca]. In other words, according to the Board of Immigration Appeals, the highest administrative tribunal in immigration where I once served as an appellate judge and Chair, asylum can be granted “even where [the likelihood of persecution] is significantly less than clearly probable.”  [Matter of Mogharrabi].

Additionally, the Handbook of the United Nations, whose Refugee Convention we adopted and which forms the basis for our refugee and asylum laws, says that because of the traumatic situation of refugees and the understandable difficulty they have in gathering and presenting “evidence,” refugees and asylum seekers should be given “the benefit of the doubt” in adjudications.

Fourth, by definition, refugee situations are driven by a variety of life-threatening forces occurring in sending countries, most of them outside our immediate control. Therefore, attempts to use harsh applications of our laws, intentionally “user-unfriendly” procedures, and punishment such as prosecution, imprisonment in life-threatening conditions, and even family separation as “deterrents” are ultimately doomed to failure. I’ve personally watched this “play out” during my five decade career in immigration.

Friends, human migration is a reality as old as humanity itself. It existed long before the evolution of the “nation state” and will continue as long as there is human life on this earth. 

Consequently, the idea of some that we can unilaterally cut off or end human migration solely by our own cruel, repressive, and unfair actions is absurd. As I always say, “We can diminish ourselves as a nation, but that won’t stop human migration.” 

Fifth, America needs immigrants. Refugees and asylees are part of our legal immigration system. They should be treated as such and welcomed, rather than being dehumanized and viewed as a “loophole,” a “threat,” or  “invaders.”

Unhappily, in my view, most of our past and current policies toward refugees and asylum seekers run afoul of these fundamental truths. Worse still, legislators, policy makers from both parties, and even Federal Judges have been willing to run roughshod over these fundamental principles when they believe it is personally, politically, financially, or even professionally expedient.

IV.  CURRENT BORDER POLICIES 

Currently, our border asylum policies, largely “holdovers” from the Trump Administration, are overwhelmingly weighted toward improper, and ultimately futile, “deterrence.” This reflects deeply imbedded nativist, often racist, views by those holding power.

Our Government currently claims that our border is “closed” to legal asylum seekers, as it has been since March 2020. Under a vestige of Trump-era policy, known as Title 42, the legal processing of asylum applicants and their admission has been suspended based on a transparently pretextual, manufactured claim of necessity to protect America from COVID.

This allows many individuals to be excluded from the U.S. without any legal process and without having a chance to make a claim for asylum or other legal protection. Others are allowed to come into the U.S. under highly discretionary — most would say arbitrary — opaque “exceptions” to Title 42 that are within the sole discretion or DHS officials without any meaningful review. 

The result is a mess. Some refugees are returned to Mexico or their home countries where they are subject to abuse, extortion,  exploitation, crime, torture, and sometimes death. 

Others, who might or might not be refugees, are allowed into the U.S., often with inadequate screening and without clear instructions as to what they are to do next. Because the Biden Administration didn’t establish any uniform nationwide resettlement system for those allowed in, they have been subject to cruel political stunts. 

One of the most well-publicized of these has been the so-called “voluntary relocation” of individuals from the border by the governors of Texas, Florida, and, until the recent election, Arizona. They are sent by these governors, without coordination or notice, to supposedly “liberal” cities such as New York, Chicago, Denver, and Washington, D.C., in the calculated hopes of overwhelming community nonprofit organizations, creating chaos, and thereby causing a “backlash” against asylum seekers and the Administration.

V. BIDEN’S LARGELY MISGUIDED PROPOSALS

The Biden Administration has made some rather halfhearted efforts to end Title 42. To date, these have been blocked by right-wing Federal Judges, mostly Trump appointees. 

But, it now appears that with the overall “COVID emergency” ended by President Biden, Title 42 will also end on May 11, barring further obstructionist litigation. 

Many of us had hoped that after more than two-years to work on regularizing and normalizing asylum processing, the Biden Administration would have a “ready to implement” plan for restoring order, fundamental fairness, and due process to asylum adjudication. 

But, sadly, this is not the case. The Biden Administration has actually proposed what many of us consider to be “gimmick regulations” to take effect upon the expiration of Title 42. These proposals actually build upon, and in some cases expand, unfair, restrictive, ineffective policies used by the Trump Administration to “deter” asylum seekers.  

Obviously, many experts have opposed these measures. A group of which I am a member, the Round Table of Former Immigration Judges, filed an official comment in opposition to these proposals. 

In it, we stated: 

[T]he proposed rule exceeds the agencies’ authority by seeking to create a ban on asylum that contradicts Congressional intent and international law. As former Immigration Judges, we can confidently predict that the rule would result in individuals being erroneously deported even where they face a genuine threat of persecution or torture. We urge that the rule be withdrawn in its entirety. 

Notably, approximately 33,000 individuals and organizations joined us in submitting comments in opposition to these regulations. Among these is the union representing the DHS Asylum Officers who claim, with justification, that applying these proposed provisions would require them to violate their oath to uphold the law.

At the heart of the Administration’s proposed changes is a new bar for those who apply for asylum other than at a port of entry and who can’t show that they have applied and been denied asylum in a country they “transited” on the way to the U.S.

Absurdly, this includes some of the most dangerous countries in the world, without well-functioning, fair asylum systems: Mexico, Honduras, Guatemala, El Salvador, Nicaragua, Colombia, being among those often transited. 

This is also a rather obvious contradiction of the statutory command I read earlier that individuals can apply for asylum regardless of whether they arrive at a port of entry.

While there are some “emergency exceptions” to these new bars, they are narrow and will be almost impossible for individuals who have made the long, difficult, and dangerous journey to establish. 

The proposal also improperly raises the statutory standards for preliminary screening of these individuals by Asylum Officers from “credible fear” to “reasonable fear.” This improperly weaponizes “gatekeepers” to block access to the asylum adjudication system. 

Another “centerpiece” of the proposal is to require all asylum applicants arriving at ports of entry to schedule in advance an appointment for asylum screening using a new app called “CBP One.” Unfortunately, according to those actually at the border with asylum seekers, CBP One is “not quite ready for prime time.” It’s plagued by technical glitches, including disconnection, inability to schedule appointments for all family members, failure of the “facial recognition” software with some ethnic groups, and issues of usable wi-fi in Mexico and cell phone access among some applicants. 

As Senator Cory Booker (D) of New Jersey stated following a recent trip to the border:  

“Even if the CBP One app [were] as efficient, user friendly, fair, and inclusive as possible – which I hope one day it will be – it would still be inherently discriminatory.” 

Additionally, the “appointments” currently available for asylum seekers are woefully inadequate and often are exhausted shortly after being posted, leaving legal asylum seekers frustrated and stranded in deplorable conditions near the Mexican border. 

The Administration has recognized the need to encourage applications for refugee status in or near the countries from which refugees flee. But, instead of providing for more robust refugee admissions, the Administration has circumvented existing refugee laws by creating “special programs” for nationals of five countries to apply for temporary “parole into the U.S.”

This process is restricted to only five countries: Venezuela, Nicaragua, Haiti, Cuba, and Ukraine. The numbers of paroles are limited, and the criteria do not necessarily relate to refugee qualifications, relying heavily on the ability to obtain a U.S. sponsor in advance.

While this undoubtedly benefits some nationals of these countries, it does not prioritize refugees and it contains numerical limitations that do not apply to those seeking asylum. The arbitrary, highly discretionary nature of the parole determinations is combined with the lack of any statutory mechanism for conferring green cards upon the expiration of parole. This “limbo” situation recreates many of the ad hoc factors of parole programs prior to the Refugee Act of 1980 that Congress specifically intended to eliminate. 

Another so-called “feature” of the proposed system being touted by the Administration is the negotiated ability to remove up to 30,000 non-Mexicans per month to Mexico. This is despite the well-publicized dangers awaiting them there, including the recent murders of American tourists and the “slow roasting” of 39 detained asylum seekers in a Mexican detention center fire.

The Biden Administration is also considering re-instituting so-called “family detention” and increased criminal prosecutions of those who cross the border illegally. These policies, also employed by the Trump Administration, have proved highly problematic in the past.

Then there is the mess in the individual asylum adjudication system that was weaponized and largely destroyed by the Trump Administration. Unqualified personnel, perceived to be committed to denying asylum above all else, were selected both at DHS and for Immigration Judge positions at the Immigration Courts, known as EOIR in the Department of Justice. Both the Asylum Office and EOIR are now incredibly backlogged.

As currently operated, the Immigration Courts feature a number of so-called “asylum free zones” where asylum is almost never granted by judges who are renowned for denying 90-100% of the asylum claims, far above the already grossly inflated “national average.” 

Even when asylum is granted, it too often depends more upon the attitude and background of the individual Immigration Judge assigned than on the merits of the case. The U.S. Courts of Appeals regularly return cases to EOIR after pointing out very basic legal and factual errors committed by the latter in their undue haste to deny protection!

The current dysfunction at EOIR violates the commands of the law, that I read to your earlier, for due process, fairness, generosity, and applying the benefit of the doubt to asylum adjudications.

Indeed, attempting to avoid the Immigration Courts, now with an astounding 2 million backlog of pending cases, at least 800,000 of them involving asylum, appears to be one of the “drivers” of Biden Administration asylum policies. Unfortunately, in their two years in office, this Administration has done little to reform the Immigration Courts to improve expertise, efficiency, and due process and to repair the systemic damage done during the Trump Administration.

To add insult to injury, incredibly, the Biden Administration just “put on hold” one of the few potential improvements they had made to the asylum process: Allowing Asylum Officers to grant asylum to border applicants who pass credible fear. This would actually bypass the EOIR backlog without diminishing anyone’s due process rights. After pushing this change as potentially “transformational,” the Administration totally blew the implementation in a stunning show of ineptness and lack of basic preparation.

V. BETTER SOLUTIONS THROUGH EXISTING LAW

In my view, and that of other experts, we are once again heading for a systemic failure to do right by refugees and asylum seekers. The primary reason is that, in contravention of the law, the lessons of the Holocaust, which gave birth to the Refugee Convention, and the scriptures, we view refugees — “the stranger in need” — as “problems” or “statistics” to be “deterred,” “punished,” “discouraged,” and “denied.” 

This is a wrong-headed — and fundamentally un-Christian — view. Refugees are fellow humans — like us — in need. They are legally entitled and deserving of our protection. 

But, beyond that, they are an important source of legal immigration that our country was built upon and continues to need. Indeed most of the ancestors of those of us in this room probably came to this country fleeing or escaping something, regardless of whether or not it would have met today’s refugee definitions.

The border doesn’t have to be a source of disorder and embarrassment to our nation. There are better alternatives, even under existing law. 

My experience tells me that if, instead of straining to improperly deter refugees, we use available tools to construct a fair, timely, generous, practical, expert, user-friendly legal system for refugees and asylees, the vast majority of them will use it. That will necessarily take pressure off the task of apprehending those seeking to evade the system. 

What I’m going to share with you are ideas for progressive, humane, constructive improvements developed and advocated by many experts and NGOs. Certainly, these are not just my ideas.

First, we must maximize use of the existing provisions for legal screening and admission of refugees processed outside the United States. Currently, those programs are overly cumbersome and far too anemic with respect to the Western Hemisphere, particularly for countries in the Northern Triangle of Central America that are traditional “sending countries.”

Refugees screened and approved abroad arrive at our borders with documents and immediate work authorization. They are also able to bring family members and have a clear statutory path to obtaining green cards and eventually citizenship. These are important factors missing from the ad hoc parole programs instituted by this Administration. 

Second, we need radical reforms of our Asylum Offices at USCIS and the Immigration Courts at EOIR. The “deadwood and nay sayers” who overpopulated these agencies during the Trump Administration must be weeded out and replaced with true subject matter experts in asylum, preferably with actual experience representing asylum seekers. 

There are many asylum cases, both among arriving applicants, and languishing in the largely self-created backlogs, that could and should be prioritized and rapidly granted. Better trained and qualified Asylum Officers should be encouraged to grant asylum at or near the border whenever possible. That avoids the need to “refer” cases to the backlogged Immigration Courts.   

Within EOIR, a great place to “leverage” reform would be at the BIA. That body was intentionally “packed” with some of the highest asylum-denying judges during the Trump Administration. Bringing in well-respected subject matter experts to set positive asylum precedents, establish and enforce best practices, and “ride herd” on the toxic “asylum free zones” and “deniers’ clubs” allowed to flourish among Immigration Courts would be a huge step forward.  

And, for those who are found not to have a credible fear of persecution, after a fair screening system and fair rules administered by Asylum Officers who are experts, the law already provides for “summary expedited removal” without resort to full Immigration Court hearings, thus avoiding that backlogged system. 

There is not, and has never been, a legitimate need to resort to Title 42 and other improper gimmicks, to deal with large migration situations. To the extent that one believes in the effectiveness of “deterrence” for those who do not have credible asylum claims, it’s built right into our existing law.   

Third, the Administration should be working with the private bar, NGOs, states, and local governments to maximize access to pro bono or low bono asylum representation. Currently, far too many adjudications take place either in detention centers in intentionally obscure locations or at out of the way ports along the border. 

Achieving representation needs to be a driving factor in establishing asylum processing. Indeed, studies have shown that representation not only dramatically improves results for asylum seekers but also virtually guarantees their appearance at all immigration hearings, without detention. It’s probably the biggest “bang for the buck” in asylum adjudication strategies. 

The Government should also be working to encourage and, where possible, fund innovative programs like VIISTA Villanova that train non-attorneys to be “accredited representatives” for recognized non-profit organizations representing asylum seekers.

Fourth, rather than expensive and inhumane detention prisons, the Government should establish a network of “reception centers” near the border and throughout the country. These could provide safe, sanitary, residential housing, education, and even work opportunities while individuals are being timely and professionally processed for asylum. They also could be matched with legal staff. 

These centers should be run by NGOs and other social service organizations with government funding. They would be a humane replacement for the privately run “detention centers” that have been the center of controversy and human rights abuses. 

Fifth, the government should work with NGOs, charitable organizations, and regional economic consortiums to establish orderly, effective resettlement programs in the U.S. that would match those granted refugee or asylum status with housing and employment opportunities in areas of America where there skills can be best utilized. 

Sixth, our government should continue to engage with the UN, other democratic nations, and economic development agencies to address the root causes of migration. 

There are many other great ideas out here in the private sector that are being largely ignored by our Government. While nobody disputes the desirability of structural changes in our immigration laws, we could drastically improve and humanize our response to refugee situations just by more creative and robust application of already existing authorities and the expertise available in the U.S. humanitarian and NGO sectors.  Approaching asylum as a humanitarian responsibility, rather than a law enforcement conundrum, is the key to escaping from the wilderness of failed “deterrence schemes” and creating  a better future for humanity. 

VI. CONCLUSION

I can sum up by quoting one of the members of what I call the “New Due Process Army,” Amy R. Grenier. She said, very perceptively, that stripped of all of its legalistic complexities,  “the concept of asylum is fairly simple. It’s the ability to ask for help and have someone listen to your story. And I think that that’s very easy to lose sight of.” I think that is also the message of the quote from Matthew 25 that I began with. 

When we ignore these pleas for help from the most vulnerable and instead dehumanize, or as I sometimes say “Dred Scottify” them, we not only endanger their lives, but we also diminish our own humanity. I’ve never found anyone who wanted to be a refugee. And, but for the grace of God, any of us could be a refugee, at any time, often when you are least expecting it.

The problem with asylum at the border is not the law. It’s the lack of will, moral courage, vision, creativity, competence, and basic skills from those charged with implementing the law. In reality, there is plenty of flexibility in the existing law to encourage refugees to apply outside the U.S., to fairly, timely, and generously process those arriving at the border who invoke our laws, and to expeditiously remove those who don’t belong in the asylum system. 

There is also plenty of legal authority to change inhumane and expensive “border jails” into “reception centers,” to increase the availability of pro bono representation, to resettle refugees and asylees in an orderly fashion, and to match the needs and skills of refugees and asylees with the needs of communities throughout the U.S.  

The real issue is why is our Government wasting time and resources on cruel, legally questionable, ultimately ineffective “deterrence gimmicks” rather than solving problems, protecting the lives, and recognizing the humanity of those in need? Matthew knew what’s the right thing to do! Why don’t our elected leaders and the bureaucrats working for them? 

I’ve shared with you some ideas for getting closer to “the vision of Matthew 25” in dealing with refugees and asylees. Of course, I haven’t solved the hard part — how to get the attention of politicians, legislators, bureaucrats, and judges who have largely “tuned out” the legal rights of refugees and other migrants and are all too prone to run from creative solutions, rather than embrace them. 

But, hopefully, I have helped to install the first step: For all of us to recognize that contrary to what many say, we can do better for refugees and we should make doing so one of our highest national priorities. How we treat “the most vulnerable — the “least of those among us” — does affect everything else in our lives and our nation’s well-being!

We need to improve the informed dialogue, stand behind our values, and insist that those who govern us do likewise. Thank you and, as we say in the New Due Process Army, due process forever!

(04-13-23.2)
 

 

🇺🇸🦸🏻‍♀️⚖️🗽👩🏻‍⚖️ PROFILE IN GREATNESS! — Kathleen Guthrie Woods Sits Down With One Of America’s Most Consequential Jurists, NDPA Hall-of-Famer 🥇 Judge (Ret.) Dana Leigh Marks On Leading & Inspiring From the Gritty Trenches Of American Justice & Her Exciting New Role As “NanaDana!” 🥰

Kathleen Guthrie Woods
Kathleen Guthrie Woods
American Journalist & Writer
San Francisco, CA
PHOTO: Goodreads
Hon. Diana Leigh Marks
Hon. Dana Leigh (“NanaDana”) Marks
U.S. Immigration Judge (Ret.)
San Francisco Immigration Court
Past President, National Association of Immigration Judges; “Founding Mother of U.S. Asylum Law”

https://www.sfbar.org/sfam/q3-2022-unpacking-the-legacy-of-judge-dana-leigh-marks/

By the time she retired from San Francisco’s Immigration Court on December 31, 2021, Judge Dana Leigh Marks* had built an inspiring reputation as a leader, mentor, and advocate. She is known for her fierce advocacy for the court. She is known for her compassion and fairmindedness. She is known for her intelligence and wit, having coined oft-repeated, appropriate zingers that help people better understand the challenges of immigration court, including “Immigration judges do death penalty cases in a traffic court setting” and “Immigration is more complicated than tax law. How do I know this? Because there is no TurboTax for immigration law.”

Talking with her former colleagues—many of whom are now also her friends—is an uplifting experience. They speak of a woman who broke through barriers, applied the law fairly and compassionately, fought hard fights, and inspired others to join her. “She’s the GOAT of immigration judges!” declares Francisco Ugarte, Manager of the Immigration Defense Unit of San Francisco’s Public Defender’s Office.

Who is Judge Marks, and how did she positively influence and impact so many lives?

. . . .

Judge Marks also thrived in this arena because she saw beyond the expectation that her role was solely to facilitate deportations; she saw the humanity inherent in the proceedings. “Every story is individual,” she says, and every person deserves to be heard.

. . . .

“She showed us all how to be fierce advocates for justice—for what is true and right and just—without crossing over lines,” says Judge King. Jamil adds Judge Marks’s “tireless” work for the union and “giving a professional, female voice to immigration judges” to her list of accomplishments. “When she started, she was one of few women. After her, all these really amazing women came to the bench,” says Shugall, women Judge Marks mentored and encouraged to apply for the bench. That roster includes Judges Jamil, King, Miriam Hayward, Stockton, Webber, and Laura Ramirez. “She helped start that trajectory,” says Shugall.

“She helped create an inspiring model for how courts can be,” says Ugarte, and Judge Webber states, simply, “She inspires people all the time.”

“While she has had some limelight in her career, the vast majority of her work has been thankless,” says Judge King. “She perseveres solely because she believes it is important to make a difference wherever you can.”

*Today Judge Marks is known as “NanaDana,” a title that celebrates her role as caretaker for her granddaughter and helps people correctly pronounce her name (“dan-uh,” not “day-nuh”).

Kathleen Guthrie Woods is a long-time contributor to San Francisco Attorney magazine. She first interviewed Judge Marks, then-president of NAIJ, for “Understanding the Crisis in Our Immigration Courts” (Spring 2015).

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

Every judge, lawyer, and law student in America, and particularly AG Garland and his lieutenants, should read Kathleen’s interview with Judge Marks (full version at link) about what “American judging” should, and could, be — all the way up to the Supremes! 

Dana, my friend and colleague, your inspiring career is yet more evidence of the “then-available” talent who could have led long-overdue change at EOIR and the BIA. Like you, much of that talent has moved on to our Round Table, and we’re stuck with the dysfunctional mess at EOIR. But, others are arising in your image to fight for justice, sanity, and humanity from “the retail level on up” in our Federal Courts.

I will always think of you as the “Founding Mother of US Asylum Law” because of your stellar advocacy in Cardoza-Fonseca and your unending, unapologetic, and highly vocal commitment to due process, independent thinking, and judicial excellence. 

As you probably remember, I was in Court for your OA in Cardoza-Fonseca, sitting at the SG’s table as you won the day for your client. My “client,” INS, “lost” that day. But, American justice, due process, and human rights won!

As it was for you and those many you inspired, “realizing the promise of Cardoza-Fonseca” became the “guiding light” of my subsequent judicial career at EOIR, on both the appellate and trial benches. Despite the more than quarter-century since Cardoza, the battle to make judges at all levels actually follow its dictates, and perhaps more importantly, its generous humanitarian spirit, is far from won!

Congrats on your new position as “NanaDana.” 😎 I always look forward to working with you and our amazing Round Table colleagues to give due process and fundamental fairness an unyielding voice before courts throughout America, and to continue the unending fight for best judicial practices in a life-determining system that has “lost its way” as millions needlessly suffer!”

We “Knightesses and Knights of our Round Table” 🛡⚔️ will “never let the bastards grind us down!” You continue to inspire all of us in our never ending quest for justice for the most vulnerable individuals among us!

 

Knightess
“NanaDana’s” fierce fighting spirit continues to inspire our Round Table of Former Immigration Judges to new heights in the never-ending pursuit of “due process and fundamental fairness for all!” (Ironically, the latter was actually EOIR’s long-abandoned “vision!” )

 

Due Process Forever! 🗽😎⚖️👩🏻‍⚖️

Your friend & colleague, forever, ❤️

PWS

11-22-22

🤯BILL FRELICK @ THE HILL BLASTS BIDEN’S SCOFFLAW, ELITIST MISTREATMENT OF VENEZUELAN REFUGEES! — Welcome A Few Of The Well-To-Do, Give Others In Need The Screw! 🔩☠️ — Whatever Happened To The Refugee Act of 1980 & The Rule Of Law?

Statue of Liberty
Too many Biden Administration Immigration officials appear to share Stephen Miller’s “upside down” view of the Statue of Liberty, in whole or in part! Why can’t they just follow the Refugee Act of 1980 and establish the robust, timely, generous legal approach to refugees and asylum seekers that best serves America?
Bill Frelick
Bill Frelick
Director
Refugee and Migrant Rights Division
Human Rights Watch

https://thehill.com/opinion/immigration/3704714-bidens-new-plan-no-help-for-desperate-venezuelan-refugees/

Refugees are people who flee for their lives. Escape from danger and abuse is usually chaotic, sudden, desperate. The Biden administration’s rollout of its new policy for Venezuelan refugees seems oblivious to this refugee reality and risks doing more harm than good.

. . . .

Announcing the program on Oct. 12, Homeland Security Secretary Alejandro N. Mayorkas said Venezuelans who enter irregularly “will be returned to Mexico.”

He didn’t mention — and appeared to disregard — U.S. law, which recognizes that anyone who arrives in the United States has the right to seek asylum “whether or not at a designated port of arrival” and “irrespective of such alien’s status.”

The impact of this announcement, “effective immediately,” was the summary return to Mexico without examination of their asylum claims of any Venezuelans entering the United States without authorization. Mexico has given no assurances that it will examine their refugee claims or provide asylum to those who fear return to Venezuela. In fact, the 4,050 Venezuelans expelled to Mexico since the implementation of the policy have been given visas valid for only one week and instructed to leave the country.

. . . .

With the Biden administration’s plan in effect, we might as well apply a blowtorch to Emma Lazarus’s welcoming poem at the foot of the Statue of Liberty and chisel in a new message: “Give me your well-rested, your well-to-do, your properly ticketed jet-setters yearning to breathe free.”

Bill Frelick is the refugee rights director at Human Rights Watch. Follow him on Twitter @BillFrelick.

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

Read Bill’s complete op-ed act the link. Bill is one of many “practical experts” who would do a much better job than current Administration politicos in establishing and running a refugee and asylum program that would comply with the law,  due process, human dignity, and America’s best interests. Why is Biden following the lead of his “clueless (and spineless) crew?”

The Refugee Act of 1980 was enacted and amended to deal with these situations! Robust, realistic refugee programs outside the U.S. should encourage many refugees to apply, be screened abroad, and admitted legally. 

Other refugees arriving at our border can be promptly screened for credible fear. Those who fail that test can be summarily removed in accordance with existing law. 

Those who pass that test should have access to counsel and receive timely, expert adjudications, with full appeal rights, under the generous “well founded fear” (1 in 10 chance) international standard established by the Refugee Act. See, e.g., INS v. Cardoza-Fonseca (Supremes); Matter of Mogharrabi (BIA).

It’s not “rocket science!” With dynamic, experienced refugee experts running the system and “practical scholars” with expertise in refugee processing and human rights laws serving as USCIS Asylum Officers and EOIR judges at the trial and appellate levels the legal system should be flexible enough to deal with all refugee situations in an orderly manner.

Many, probably a majority, of today’s asylum seekers should be granted asylum and admitted to the U.S. in full legal status, authorized to work, and on their way to green cards and eventual citizenship. Like those admitted from abroad, they could also be made eligible for certain resettlement assistance to facilitate integration into American communities who undoubtedly will benefit from their presence.

The more robust, realistic, and timely our overseas refugee programs become, the fewer refugees who will be forced to apply for asylum at our borders. Also, real, bold, dynamic humanitarian leadership, including accepting our fair share of refugees and asylees, could persuade other countries signatory to the Geneva Refugee Convention to do likewise.

No insurmountable backlogs; no bewildered individuals wandering around the U.S. in limbo waiting for hearings that will never happen; few “no shows;” no long-term detention; no botched, biased “any reason to deny” decisions from unqualified officers and judges leading to years of litigation cluttering our legal system, no diverting Border Patrol resources from real law enforcement, no refugees huddled under bridges or sitting on street corners in Mexico!

It’s not “pie in the sky!” It’s the way our legal system could and should work with competent leadership and the very best available adjudicators and judges! It would support the proper, important role of refugees as an essential component of LEGAL IMMIGRATION, not an “exception” or “loophole” as racists and nativists like to falsely argue.

Instead of demonstrating the competence and integrity to use existing law to deal with refugee and asylum situations, the Biden Administration resorts to ad hoc political gimmicks. Essentially, the “RA80” has been repealed “administratively.” Effectively, we’re back to the “ad hoc” arbitrary approaches we used prior to ‘80 (which I worked on during the Ford Administration, and where I recollect I first heard of Bill Frelick). 

I doubt that the late Senator Ted Kennedy, former Rep. Elizabeth Holtzman, and the rest of the group who helped shepherd the Refugee Act of 1980 through Congress would have thought that using Border Patrol Agents as Asylum Officers or packing the Immigration Courts and the BIA with judges prone to deny almost every asylum claim, regardless of facts or proper legal standards, was the “key to success!”

Congress specifically intended to eliminate the use of parole to deal with refugees except in extremely unusual circumstances, not present here. Biden’s latest ill-advised gimmick violates that premise. It’s totally inexcusable, as the refugee flow from Venezuela is neither new nor unpredictable. I was granting Venezuelan asylum cases before I retired in June 2016. Even then, there were legions of documentation, much of it generated by the USG, condemning the repressive regime in Venezuela and documenting the persecution of those who resisted!

A better AG would say “No” to these improper evasions of existing law. But, we have Merrick “What Me Worry” Garland! His botching of the Immigration Courts has been combined with a gross failure to stand up for equal justice for migrants (particularly those of color) across the board! America and refugees deserve better from our chief lawyer.

The Refugee Act of 1980 actually provides all the tools and flexibility the Biden Administration needs to establish order on the border and properly and fairly process refugees and asylees. Why won’t they use them?

Alfred E. Neumann
AG Merrick Garland has “looked the other way” while the Biden Administration flaunts applicable protection laws in and outside the U.S. He also runs a dysfunctional “court system” where anti-asylum bias, worst practices, poorly qualified decision makers, and grotesque inconsistencies undermine the legal rights of asylum seekers and other refugees. Doesn’t America deserve more competence from its top lawyer?
PHOTO: Wikipedia Commons

🇺🇸 Due Process Forever!

PWS

10-28-22

☠️🤮⚰️🏴‍☠️ MERCHANTS OF CHAOS & CORRUPTION: GOP HACKS, BAD RIGHTY JUDGES FORCE ILLEGAL CONTINUATION OF BOGUS TITLE 42 ABOMINATION! — Ending Title 42 Will Restore Order To The Border, Says Expert, Professor Stephen Yale-Loehr Of Cornell Law @ The Hill! — But, Wait, There’s Much More Needed, Say I!

Four Horsemen
GOP political hacks and their enabling bad righty Federal Judges have combined to wreak havoc on humanity and trample the Constitution, rule of law, common sense, and simple human decency at our Southern border!
Albrecht Dürer, Public domain, via Wikimedia Commons
Professor Stephen Yale-Loehr
Professor Stephen Yale-Loehr
Cornell Law

https://thehill.com/opinion/immigration/3575601-ending-title-42-wont-cause-immigration-mayhem-it-will-restore-order/

In 2015, a Ghanaian man who goes by the initials M.A. and his gay friend were brutally assaulted by a vigilante group in Accra, Ghana. In Ghana, homosexuality is illegal and carries a prison sentence of up to three years. M.A. was beaten with sticks before escaping through a window. His friend was killed. Fearing the group would find and kill him, he fled to Ecuador and made his way to the U.S. border, where he requested asylum. After being detained for nine months, he was released on bond and lived with a childhood friend in New York while he waited for his case to make it through the legal system.

M.A. clearly faced persecution, but an immigration judge denied his claim. I took M.A.’s appeal to the Board of Immigration Appeals in 2016 as part of the Cornell Law School’s asylum appeals clinic. It took M.A. four years to win asylum in America, but at least he was given the chance to apply in the first place.

Since March 2020, approximately 900,000 people — including over 215,000 parents and children — have been denied the ability to request asylum at all. They’re casualties of Title 42, a pandemic-related policy that paused nearly all asylum proceedings at the border. Some people argue the policy is preventing an influx of migrants. In fact, numbers are up despite the policy, and our refusal to process most of them has led to chaotic and dangerous conditions.

The United States has successfully managed ebbs and flows of asylum seekers for decades. There’s a system in place to manage an influx — and regardless of how hard immigration lawyers like me fight for them to stay, many will lose their case and be deported. Even so, we must let people try. It’s not only the right thing to do, it’s also guaranteed under international and domestic law. We signed a 1967 protocol to the U.N. Refugee Convention to protect the rights of refugees, and we have adopted it and codified it into U.S. asylum law. Right now, we’re violating those obligations. The longer we do, the weaker American rule of law looks to our global partners.

We must immediately reinstate due process for asylum seekers. And once this happens, we must work to make the system more equitable and faster.

. . . .

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

Read Steve’s complete op-ed in The Hill at the link.

I agree that “we must work to make the system more equitable and faster.” But, the answer can’t be just to hire more Immigration Judges in Garland’s dysfunctional, broken, and anti-asylum-biased “court” system. That would just speed the “deportation assembly line” and lead to even more injustice and grotesque inconsistencies. 

According to TRAC, Immigration Judge “asylum denial rates” currently “range” from 5% to 100%. That’s a ridiculous, indefensible variation and a total perversion of the generous standard for granting asylum set forth by the Supremes in Cardoza-Fonseca and adopted by the BIA in Matter of Mogharrabi, but seldom enforced or followed, particularly these days.  Why this very obvious, totally solvable problem is still festering going on two years into a Democratic Administration that pledged to solve it is beyond me! 

Enough of this nonsense, biased, “amateur night at the Bijou” mal-administration of the Immigration Courts at EOIR by Garland’s DOJ! No wonder folks are still complaining about “Refugee Roulette” more than a decade after it was written by my Georgetown Law colleagues Professors Phil Schrag, Andy Schoenholtz, and Jaya Ramji-Nogales (now an Associate Dean at Temple Law). Why not put one of THEM, or for that matter, Professor Yale-Loehr, in charge of kicking tail and cleaning out the deadwood at EOIR?

Amateur Night
This approach to life or death asylum adjudication at EOIR, particularly the BIA, is a killer!
PHOTO: Thomas Hawk
Creative Commons
Amateur Night

At a minimum Garland must:

  • Remove the holdover “Asylum Deniers Club” from the BIA and replace them with a real judge as Chair and new Appellate Immigration Judges who are widely recognized as “practical experts” with careers that have demonstrated superior scholarship in immigraton and human rights, an unswerving commitment to due process for individuals, and a passion for racial justice in our legal system; 
  • Have the “New BIA” issue useful precedential guidance on how to document and grant valid asylum cases at both the Asylum Office and the Immigration Court, implement best practices, and identify and remove from future asylum adjudication those unqualified Immigration Judges who basically “make up” reasons to deny and can’t or won’t treat applicants fairly; and
  • Immediately replace with qualified expert judges those Immigration Judges on the “Southern Border docket” who can’t fairly adjudicate asylum cases.

Steve is totally correct about the need for Title 42 to go! But, Garland’s EOIR, particularly the BIA, is just as broken, counterproductive, and out of control as Title 42! In many ways, the illegal abrogation of the rule of law at the Southern Border has somewhat ”hidden” the larger problem that a dysfunctional and incapable EOIR poses for those who do manage to get a hearing!

Without a legitimate, totally reformed and significantly “re-populated” EOIR operating at the “retail level” of our justice system, there will be no rule of law and equal justice under law in America — for anyone!

Tell Garland you have had enough! The deadly and disorderly “EOIR Clown Show” has got to go! Now!

EOIR Clown Show Must Go T-Shirt
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept

🇺🇸 Due Process Forever!

PWS

07-28-22

 

⚖️10TH CIR. SAYS TRANSGENDER WOMEN FACE “PATTERN OR PRACTICE OF PERSECUTION” IN HONDURAS — Gonzalez Aguilar v. Garland — Latest Setback For Garland’s “Asylum Deniers’ Club” (A/K/A “BIA”)!👎🏽 “Refugee Roulette” ☠️⚰️  The “Order Of The Day” @ Garland’s Dysfunctional & Unjust DOJ!

Dan Kowalski reports for LexisNexis:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca10-2-1-on-honduras-transgender-women-gonzalez-aguilar-v-garland

Immigration Law

pastedGraphic.png

Daniel M. Kowalski

29 Mar 2022

CA10 (2-1) on Honduras, Transgender Women: Gonzalez Aguilar v. Garland

Gonzalez Aguilar v. Garland

“Kelly Gonzalez Aguilar is a transgender woman from Honduras. She came to the United States and applied for asylum, withholding of removal, and deferral of removal. In support, Kelly claimed • past persecution in Honduras from her uncle’s abuse, • fear of future persecution from pervasive discrimination and violence against transgender women in Honduras, and • likely torture upon return to Honduras. The immigration judge denied the applications and ordered removal to Honduras. In denying asylum, the immigration judge found no pattern or practice of persecution. Kelly appealed the denial of each application, and the Board of Immigration Appeals dismissed the appeal. The dismissal led Kelly to petition for judicial review. We grant the petition. On the asylum claim, any reasonable adjudicator would be compelled to find a pattern or practice of persecution against transgender women in Honduras.”

[Hats off to Nicole Henning, Tania Linares Garcia and Keren Hart Zwick!  And…nota bene…this PFR was filed in 2018!]

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

Imagine what it would be like if we had an AG with the guts and decency to appoint a BIA of real judges — asylum experts who would adhere to due process and fairly, properly, and consistently interpret asylum laws rather than spewing out specious, life-destroying, bogus denials? Backlogs might even start decreasing!

Remarkably, even the Trump-appointed dissenting Circuit Judge Joel M. Carson concedes that EOIR easily could have decided this case in favor for the respondent and perhaps should have. 

No doubt a person could view the record before us differently—the majority does so today—and I might on de novo review.

He then willingly gets lost in a forest of bogus reasons for abusing “standards of review” as an excuse for Article III Judges to avoid responsibility for life-threatening miscarriages of justice.

In stark terms, a reasonable judge could have saved this respondent and probably should have. But, this IJ and the BIA chose not to. So, who cares because it’s only a brown-skinned asylum seeker whose life is so insignificant that we should relegate it to the realm of chance and happenstance. Next case, please!

Asylum law, according to the Supremes in Cardoza-Fonseca is supposed to be interpreted generously in favor of protection. If legal protection from persecution or death is one possible outcome, it should be the the only acceptable outcome! Saying that some humans should potentially die while others be protected basically depending on a Federal Judge’s personal philosophy and mood on a particular day isn’t just legally wrong and a denial of due process and equal protection — it’s immoral!

The point is obvious. Better qualified judges at the BIA would put an end to this treatment of life or death decisions as a “crap shoot” — dependent on which IJ is drawn, the composition of the BIA “panel,” the Federal Circuit in which the case arises, the “luck of the draw” on the Circuit panel, and probably the “day of the week.” This is no way to run a justice system. And, Garland and his complicit lieutenants know that!

A better AG would long ago have installed a better BIA. It’s classic “Refugee Roulette” ☠️⚰️ being promoted by a Dem Administration! Instead of putting an end to this disgraceful “intellectual game of chance with human lives” being played by ivory tower bureaucrats and judges who have “immunized” themselves from the traumatic real life consequences of their bad decisions, Garland has chosen to “play along” 

I’m not the only one to express frustration with Garland’s failure to do his job, to prioritize accountability, and to take justice, human lives, and the rule of law seriously! See, e.g., https://www.huffpost.com/entry/merrick-garland-justice-department-contempt-charges-lag-capitol-riot-investigation_n_62427a3ae4b0e44de9b8451f

When he’s not carrying out Stephen Miller’s anti-asylum policies @ EOIR with Miller’s holdover acolytes  as “judges” and “senior executives,” Garland is busy helping Trump and his fellow GOP insurrectionists “run out the clock” on the House Jan. 6 Panel!

🇺🇸Due Process Forever!

PWS

03-30-22

⚖️BINGO! — WASHPOST DUO’S REPORT SHOWS TIMELINESS ⏰ OF RAPPAPORT-PISTONE-SCHMIDT PLAN 😎 FOR INCREASING REPRESENTATION AND IMPROVING MPP PROCESS! — All That’s Missing Is The Government Leadership To Engage & Make It Happen! — “But despite the vastly lower numbers, there is still far more demand for pro bono legal services than nonprofit groups and charities can provide, Castro said.”

Nick Miroff
Nick Miroff
Reporter, Washington Post
Arelis R. Hernandez
Arelis R. Hernandez
Southern Border Reporter
Washington Post

Nick Miroff & Arelis R. Hernandez report for WashPost:

https://www.washingtonpost.com/national-security/2022/02/04/biden-mpp-mexico/

. . . .

Under Trump, asylum seekers sent to Mexico were often confused and adrift, unsure how to find legal help or return for their U.S. court appointments. They were visible on the streets of Mexican border cities and were easy targets for criminal gangs.

Marysol Castro, an attorney with El Paso’s Diocesan Migrant and Refugee Services who provides legal aid to asylum seekers in MPP, said the program’s return under Biden was a “relief” to some, “because otherwise if you go to the border you’re getting expelled” under Title 42.

Castro said new enrollees in MPP have court dates with fast-tracked hearings, unlike asylum seekers who were placed into the program under Trump and are still stuck in Mexico “with no hope.”

Mexican authorities say they received assurances from the Biden administration that migrants placed in MPP would have improved access to legal counsel. But despite the vastly lower numbers, there is still far more demand for pro bono legal services than nonprofit groups and charities can provide, Castro said.

More than two-thirds of MPP returns under Biden have been sent to Ciudad Juárez, where they are provided secure transportation through a State Department contract with the U.N. International Organization for Migration. The Mexican government houses them in a shelter set up in a converted warehouse in an industrial area of the city.

“The shelters are more restrictive,” said Victor Hugo Lopez, a Mexican official who helps oversee the program. “The migrants can request permits to go outside, but we try to keep them safe by keeping them inside.”

Dana Graber Ladek, the IOM chief of mission in Mexico, said her organization continues to oppose MPP on principle, even as it’s working with both governments to ameliorate conditions for those sent back.

“It still has a tremendous amount of negative impacts,” she said. “It’s not how asylum is supposed to work.”

Hernández reported from San Antonio.

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

Hey, guys, we told you so!

https://immigrationcourtside.com/2022/02/02/%e2%9a%96%ef%b8%8f%f0%9f%97%bdthere-will-be-no-supreme-intervention-to-stop-mpp-%e2%98%b9%ef%b8%8f-rappaport-pistone-schmidt-tell-how-the-administration-advocates-c/

Representation remains a problem, but also an opportunity, just as Nolan Rappaport said on The Hill! Fortunately, Professor Michele Pistone has been thinking in advance and has built a “scalable” program (VIISTA-Villanova) that already is turning out qualified grads who can become accredited representatives and could quickly be expanded. By coordinating scheduling of hearings with nationwide NGOs and pro bono groups and “leveraging” resources that might be available to get pro bono resources to the border without overtaxing them elsewhere with “Aimless Docket Reshuffling,” (“ADR”), the representation problem can be solved.

One good sign is that cases of those likely to be granted, Venezuela, Nicaragua, Cuba, have been prioritized which can help move dockets forward while reducing resource-wasting appeals and petitions for review. But, there is much more “low hanging fruit” here to be harvested, in my view:

  • Also prioritize many Haitian cases, domestic violence cases from Latin America, and family-based cases which, if represented and documented, should be relatively straightforward grants;
  • Replace the BIA with judges who are asylum experts and will issue the necessary positive guidance on granting asylum that will move dockets, promote consistency, and reduce appeals;
  • Why ignore the “waiting for Godot” cases left over from Trump’s intentionally “built to fail” program? Get them represented and scheduled for hearings;
  • End the failing and totally misguided “Dedicated Dockets” at EOIR. Instead, treat the MPP as the “Dedicated Docket;”
  • To keep backlog from further building, use ideas from the “Chen-Markowitz” plan to remove two “hopelessly aged” cases from the EOIR backlog docket for every MPP case “prioritized.” This could also free up some representation time. Go from ADR  to “Rational Docket Management” (“RDM”), closely coordinated with the private bar and DHS!    

Finally, keep in mind that directly contrary to the babbling of Paxton and other ignorant GOP White Nationalists, the purpose of asylum law is protection, not rejection! And, the generous standard of proof for asylum, recognized by the Supremes 35years ago, combined with existing regulatory presumptions of future persecution based on past persecution should, if honestly and expertly applied, favor asylum applicants (even if that hasn’t been true in practice). The U.S. legal system is supposed to be about guaranteeing due process fundamental fairness, and achieving justice, not to serve as a “deterrent,” “punishment,” or “enforcement tool.” 

In the case of MPP, everyone in the program has already passed initial credible fear or reasonable fear screening! That means with well-qualified Immigration Judges possessing asylum expertise, new expert BIA judges, competent representation, and a focus on insuring justice by DHS Counsel, many, probably the majority of the MPP cases should be grants of asylum of other protection. 

That will help clean out the camps, while addressing the serious “immigration deficit” that was engineered by Trump and Miller. It also allows refugees to become contributing members of our society, rather than rotting away and squandering their human potential in squalid camps in Mexico!

To date, most MPP cases have  been denied with questionable due process, little obvious expertise, and a complete lack of positive, practical guidance by the BIA. This strongly suggests severe shortcomings and bias in the DHS/DOJ implementation of Remain in Mexico (“MPP”). But, it’s never too late to do better!

The Post article suggests that there have been some modest improvements in MPP under Biden. It’s time to take those to another level! The ideas and tools are out there. All that’s missing is the dynamic leadership, teamwork, and competent, creative., due-process-focused focused management.  

🇺🇸Due Process Forever!

PWS

02-07-22

😎🗽⚖️👩‍⚖️ FLASH: JUDICIAL MAVEN HON. DANA LEIGH MARKS RETIRES, JOINS ROUND TABLE! 🛡⚔️ — “Founding Mother” Of U.S. Asylum Law Successfully Argued INS v. Cardoza-Fonseca @ Supremes, Led Immigration Judges’ Association, Spearheaded “Article I”  Movement For Judicial Independence, Saved Thousands of Lives Over Career On Bench Spanning More Than Three Decades!

Hon. Diana Leigh Marks
Hon. Dana Leigh Marks
U.S. Immigration Judge (Ret.) One of the most influential, outspoken, and dynamic Federal Judges of the past half-century enters the next phase of her illustrious career, as a caregiver for her granddaughter and a “fighting knightess” of the Round Table, with typical optimism. “Decades of dealing with DOJ and EOIR management has given me the best possible toolbox to meet any challenges on the road ahead,” says “NanaDana.” 

😎🇺🇸🗽⚖️👩‍⚖️ FLASH: JUDICIAL MAVEN HON. DANA LEIGH MARKS RETIRES, JOINS ROUND TABLE! 🛡⚔️ — “Founding Mother” Of U.S. Asylum Law Successfully Argued INS v. Cardoza-Fonseca @ Supremes, Led Immigration Judges’ Association, Spearheaded “Article I”  Movement For Judicial Independence, Saved Thousands of Lives Over Career On Bench Spanning More Than Three Decades!

By Paul Wickham Schmidt

Courtside Exclusive

Jan. 9, 2022

Judge Dana Leigh Marks, one of America’s leading “applied scholars” and human rights jurists, joined the Round Table of Former Immigration Judges. Marks retired from the San Francisco Immigration Court on December 31, 2021, following an extraordinary nearly 35-year career on the bench. Round Table spokesperson Judge Jeffrey S. Chase announced Marks’s move in an e-mail yesterday to the group’s more than 50 members.

In addition to her “number one retirement priority” — helping care for her granddaughter — Marks told Courtside that she “looks forward to continuing the fight for Article I and due process for all in America, now without the disclaimers that DOJ requires.” It’s a mission and a sentiment shared by the group.

Long time colleague and fellow past president of the National Association of Immigration Judges (“NAIJ”), Judge John Gossart enthusiastically welcomed and recognized Marks’s fearless advocacy “for due process, fundamental fairness, the right to be heard, and an Article 1 Court.” 

Other Round Table judges greeted their newest member with an avalanche of praise, appreciation, admiration, and love for Marks’s intellectual prowess, courage under pressure, and embodiment of the one-time vision of making the U.S. Immigration Courts “the world’s best tribunals, guaranteeing fairness and due process for all.” Over the last several decades, many experts say that noble vision was cashiered by Department of Justice (“DOJ”) politicos in favor of the “go along to get along” and “good enough for government work” aura that infects today’s broken and dysfunctional Immigration Court system. Those courts, now running an astounding, largely self-created backlog in excess of 1.5 million cases, are inappropriately located within the byzantine, politicized bureaucracy of a DOJ still reeling from four years of grotesque mismanagement and misdirection by the Trump group.

Marks graduated from Cal Berkeley in 1974 and received her J.D. from Hastings Law in 1977. She worked for almost ten years as an immigration lawyer in private practice, and was an active leader in AILA’s Northern California chapter during that time. In 1986, as a partner with Simmons & Ungar, then San Francisco’s premier immigration law specialty firm, Marks successfully argued the landmark case, INS v. Cardoza-Fonseca, 480 US 421 (1987). 

There, the Supreme Court rejected the Government’s argument that asylum seekers must establish that their future persecution is “more likely than not” to happen. Instead, the Court adopted the much more generous international standard of a “well founded fear” of persecution. The Court thereby recognized that asylum could be granted where the fear was objectively reasonable, even if it were significantly less than “probable.”

Some also consider this to be the “high water mark” of the Court’s positive use of international law concepts in a human rights case involving immigration. Despite considerable internal resistance to fairly applying the more generous legal standard, Cardoza has undoubtedly saved the lives of tens of thousands of refugees and their families over the past three and one-half decades. 

Shortly after submitting the brief (co-authored with Bill Ong Hing, Kip Steinberg and Susan Lydon), but prior to her Cardoza argument, Marks was selected for a judgeship by then Chief Immigration Judge, the late William R. Robie. Then Attorney General Ed Meese adopted Robie’s recommendation, and Marks was sworn in as a U.S. Immigration Judge for San Francisco in January, 1987, two months after the oral argument and two months prior to the decision being issued by the Court. 

During her distinguished career on the immigration bench, Marks has been an outspoken fighter for professional treatment of her fellow Immigration Judges, for true judicial independence in the Immigration Courts, and for fair, humane, professional treatment of those coming before the courts. She served on a number of occasions as the President and Executive Vice President of the NAIJ, sometimes “swapping” leadership positions with her close friend Judge Denise Slavin, also President Emerita of NAIJ and now a “fearless fighting knightess” of the Round Table. 

Marks and Slavin helped battle two DOJ attempts to “decertify” the NAIJ and thus silence the powerful voices that often exposed severe problems in the administration of the Immigration Courts. Indeed, Marks’s determination to speak “truth to power,” her outsized personality, and her willingness to “level” with the media often put her at odds with “handlers” in the court’s bloated bureaucracy and their DOJ overlords. 

The latter often sought to divert the Immigration Courts from their due process mission to focus instead on “deterrence” of asylum seekers and fulfilling each Administration’s goals for immigration enforcement. Among other things, this led to a backlog-building phenomenon known as “Aimless Docket Reshuffling.”

In her writings, speeches, and interviews, Marks decried these glaring conflicts of interest and abuses of normal judicial ethics, not to mention common sense and human decency. She tirelessly advocates that the United States adhere more closely to international standards governing refugees and asylees, which was the clearly expressed legislative intent when the Refugee Act of 1980 was enacted.

Summing up her new life after Immigration Court, Marks said “I will enjoy my new day job of caring for my granddaughter, but will continue my hobby of telling truth about EOIR [the bureaucratic acronym for Immigration Courts] through NAIJ and the Roundtable. I am proud to be in such good company!” The feeling is mutual! Due process forever!

Knightess
Knightess of the Round Table

😎🗽ASYLUM GRANT RATES REBOUND MODESTLY UNDER BIDEN AFTER FOUR YEARS OF SYSTEMIC ARTIFICIAL WHITE NATIONALIST REPRESSION UNDER TRUMP, EVEN AS NUMBER OF ASYLUM DECISIONS RECEDES — Grant Rates Still Lag Far Behind FY 2012 When Well Over 50% Were Granted, Showing Inexcusable “Lost Decade” In EOIR’s Asylum Adjudications & Proper Legal Development Of Asylum Law! 

 

Transactional Records Access Clearinghouse

Asylum Grant Rates Climb Under Biden

Under the new Biden administration, asylum seekers are seeing greater success rates in securing asylum. While relief grant rates had fallen ever lower during the Trump years to just 29 percent in FY 2020, they rose to 37 percent in FY 2021 under President Biden.

However, with the ongoing partial Court shutdown during the COVID-19 pandemic, there has been a sustained drop in the number of asylum decisions. Even with the greater odds of success, the number of asylum seekers who were granted asylum during FY 2021 was only 8,349 with an additional 402 granted another type of relief in place of asylum. In sheer numbers, this was only about half the number of asylum seekers who had been granted relief during FY 2020, the final year of the Trump administration.

The improved asylum grant rates during FY 2021 began only after the new Biden administration took office at the end of January 2021. Tracking asylum grant rates month-by-month rather than year-by-year, the increase in asylum grant rates under President Biden for the last quarter of FY 2021 (July-September 2021) was even larger: asylum seekers’ success rates climbed to 49 percent. Not only was this much higher than at any period during the Trump years, the asylum success rate was up five percentage points from 44 percent during the last quarter of the Obama administration.

Historically, asylum seekers have had greater success in the Immigration Court for affirmative as compared with defensive asylum cases. At one time, the majority of asylum applications decided by Immigration Judges were affirmative cases referred by U.S. Citizenship and Immigration Services (USCIS). However, most asylum applications today are considered defensive applications and filed in response to the Department of Homeland Security initiating removal proceedings in Immigration Court.

Asylum seekers who are represented by an attorney – as most are in affirmative asylum cases – have greatly increased odds of winning asylum or other forms of relief from deportation. For all Court decisions in FY 2021, nearly nine out of ten (89%) asylum seekers in affirmative and defensive cases were represented. This was clearly a vital factor in improving overall asylum success rates since in the prior year, FY 2020, representation rates were 80 percent or nine (9) percentage points lower.

Read the full report – the first in a two-part series – to obtain many more details about trends in Immigration Court asylum decisions over the past two decades at:

https://trac.syr.edu/immigration/reports/667

The impact of gender, age, language, and nationality will be covered in the second report in this two-part series. Readers need not wait to probe these and many more details on asylum decisions using TRAC’s free web query tool — now updated through September 2021 and expanded to cover gender, age, and language details. As before users can also drill in to see how decisions vary geographically, by state, Immigration Court, and hearing location. Go to:

https://trac.syr.edu/phptools/immigration/asylum/

To examine a variety of Immigration Court data, including asylum data, the backlog, MPP, and more now updated through September 2021, use TRAC’s Immigration Court tools here:

https://trac.syr.edu/imm/tools/

If you want to be sure to receive a notification whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1

Follow us on Twitter at:

https://twitter.com/tracreports

or like us on Facebook:

https://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:

https://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors 

Transactional Records Access Clearinghouse 

Syracuse University 

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

Here’s some historical perspective. When the Refugee Act of 1980 was enacted, the INS took the position that the standard of proof for asylum was the same as the “traditional” standard for the pre-existing relief of withholding of deportation. That was a “clear probability,” of persecution, which means “more likely than not.”

Because this was a high standard that had been “over-rigorously applied” to deny almost all withholding cases (refugees from communism — Other Than Chinese — were about the only folks who had any chance of being granted withholding, and that was rare) the asylum grant rate remained very low for the first six years following enactment of the Refugee Act. In 1987, that grant rate was only approximately 11%.

In 1987, the Supreme Court decided INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). (As the Acting General Counsel/Deputy General Counsel of INS, I had helped the Solicitor General prepare and articulate the Government’s position. My future Immigration Court friend and colleague, Judge Dana Leigh Marks, then known as Dana Marks Keener, argued for Ms. Cardoza-Fonseca. I sat at counsel’s table with the “SG’s Team” during the oral argument before the Court. Shortly thereafter, I left INS to go into private practice at Jones Day.)

To the surprise of many of us, the Supremes soundly rejected the INS position and ruled in favor of Ms. Cardoza-Fonseca. The Court said that a “well-founded fear” of persecution was intended to be a much more generous standard, significantly less than a probability and including a “10% chance” of persecution.

Thereafter, the BIA issued a precedent implementing the “well founded fear” standard as “significantly less than a probability” — an “objectively reasonable” fear of persecution — in Matter of Mogharrabi, 19 I&N Dec. 437 (BIA 1987). Mogharrabi also stood out as one of the very few BIA precedents up to that time actually granting, rather than denying asylum on appeal. (When I returned to Government service in 1995 as Chairman of the BIA, I was a “true believer” in making the as yet “unfulfilled promise of Cardoza and Mogharrabi” a reality! That’s still at the top of my “Due Process Forever Wish List!”)

In the immediate aftermath, while “parroting” the Cardoza and Mogharrabi generous standards, most Immigration Judges and BIA panels appeared to actually continue to apply the more restrictive “probability” or “more likely than not” standard.  But, over time, the Circuit Courts of Appeals and sometimes even Board Members (most often in dissent) began “calling out” EOIR Judges for what appeared to be an intentional misapplication of the asylum standard.

A regulation change to provide a “rebuttable presumption of future persecution” arising out of past persecution also helped. That is, once the Article III Courts forced EOIR judges to actually apply, rather than ignore or disingenuously “work around,” the regulatory presumption. See generallyMatter of Chen, 20 I&N Dec. 16 (BIA 1989) (particularly the concurring opinion by Judge Michael J. Heilman) for the “Bush I Era” historical impetus for the past persecution regulations. Ironically, the BIA sometimes had trouble “following up” on the generous teachings of their own Chen precedent.

Additionally, Judge Marks and other trained asylum experts from outside the Government who joined the Immigration Court prior to 2001 began actually applying the correct standard to grant asylum. (By stark contrast, Sessions and Barr “stacked and packed” the BIA with some of the most virulent anti-asylum judges in America while appointing far too many individuals with no immigration or asylum expertise whatsoever to be Immigration Judges at the trial level. The idea was to “build the deportation railroad” 🚂 with the BIA and Immigration Court as “mere whistle stops,” at best.)

Consequently, over time, between 1987 and 2013, there was a slow but steady increase in asylum grant rates as Courts and some Immigration Judges and BIA Members pushed EOIR to finally “live up” to the more generous Cardoza/Mogharrabi standard. A number of those who helped this push for justice for asylum seekers are now members of our “Round Table of Former Immigration Judges!”🛡⚔️

Knightess
Knightess of the Round Table

The world certainly was a dangerous place for refugees in the years leading up to FY 2012, when asylum grants actually reached their “high water mark” of well over 50%. But, it has gotten even more dangerous over the past decade. 

That, until recently, asylum grant rates had steadily declined since FY 2012 while conditions for refugees continued to worsen shows that the EOIR system is largely about politically driven enforcement manipulation rather than a test of reality or a fair, efficient, competent, and legally sound approach to asylum law.

The modest but welcome rise in asylum approval rates under Biden happened notwithstanding a BIA that continues to churn out unduly and intentionally restrictive precedents and to botch basic asylum decisions on a regular basis! It also occurred under an Attorney General who has largely “looked the other way” and exhibited indifference as the BIA (composed mostly of “holdover” Trump-era appointees or “survivors” of the Trump regime) continues to abuse asylum seekers.

Lawyers and applicants who have kept fighting for their rights in a system designed to railroad and demoralize them deserve much credit for the improved results and for constantly battling to expose the “Garland BIA’s” gross deficiencies to the Article III Circuit Courts. That’s what the “New Due Process Army” is all about!

Just think what the asylum grant rate might look like with a better BIA of independent expert judges who consistently provided positive precedents and guidance on asylum law and consistently enforced them against those Immigration Judges who have improperly and unethically created “Asylum Free Zones” in some jurisdictions!

Think of how many lives could be saved with better judges at the trial, and particularly the appellate, levels of EOIR! Backlogs and unnecessary litigation would also begin to decrease — without bogus and wasteful “enforcement gimmicks” like Garland’s “Dedicated Dockets” designed and implemented from above by disconnected, sometimes clueless, bureaucrats as a toxic example of  backlog-building “Aimless Docket Reshuffling!”

Not rocket science! 🚀 Too bad nobody at Garland’s DOJ appears to care much about human lives and taxpayer dollars going down the drain on an unfair, backlogged, and stunningly dysfunctional asylum system at EOIR and on the Southern Border. ☹️

🇺🇸Due Process Forever!

PWS

11-10-21