"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
For reference purposes, the average grant rate for FY 2018 and FY 2019 was 33% and 29%, respectively.
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Go to the link for complete individual Immigration Judge asylum stats.
The idea that a “court” system is providing “fair and impartial” decisions toasylum seekers by advancing to important appellate positions biased, obviously unqualified, anti-asylum “jurists”with grant rates that are a small fraction of the already artificially and unethically suppressed “national average” is a total fraud — a grotesque national disgrace rivaled only by the gutless Article III judges who have allowed and encouraged this to happen on their watch!
Somewhat remarkably, after three years of concerted efforts to “zero out” asylum grants, including gimmicks like illegally and unethically rewriting asylum law to screw refugees, denying the statutory and Constitutional right to counsel, using coercive and punitive detention, abusive criminal prosecutions, and family separation to coerce asylum seekers into giving up viable claims, production quotas encouraging rote asylum denials, packing the Immigration Courts with appointees from enforcement backgrounds, and stacking the BIA with anti-asylum zealots, the overall asylum grant rate is still 29%.
That suggests that under a fair and impartial judicial system asylum seekerscould and should succeed in the vast majority of cases. With no material improvements in worldwide refugee-creating conditions, and indeed a record number of refugees fleeing oppression, there is no bona fide explanation for how grant rates would go from 43% in FY 2016 to 29% in FY 2019 without any legislative changes. And, let’s be clear: the 43% in 2016 was already artificially suppressed from 56% in FY 2012. Even the 2012 rate was unrealistically low. A realistic grant rate under a properly generous application of asylum law probably would have been in the 70%-80% range.
The answer is obvious: Government fraud and misfeasance in asylum adjudication on a massive scale, motivated by a White Nationalist, racist, nativist political agenda that clearly violates both the asylum laws and our Constitution. And, this doesn’t even take into account the many asylum seekers artificially denied access to the system at all through the “Let ‘Em Die in Mexico Program,” and ludicrously illegal and fraudulent “Safe Third Country” agreements with patently unsafe and corrupt failed states.
Yet, while it’s all happening in plain view, indeed touted by Stephen Miller and other racist officials, the Article III Courts of Appeals and the Supremeshave taken a dive. They are are allowing the “Second Coming of Jim Crow” to unfold before their eyes, every day, without taking the strong, courageous judicial actions necessary to preserve Due Process and fundamental fairness and to “just say no” to the overt racism driving anti-asylum policies.
Sure, the stock market is up and we’re essentially at full employment. But, that really has little or nothing to do with justice, morality, values, and the rule of law. Eventually, the inevitable economic cycles will turn again.
With social justice, integrity, the rule of law, and our republic in shambles, how will the Article IIIs and the other cowardly enablers justify their roles and dereliction of their duty to stand up for the rights of the most vulnerable among us? And, who will stand up for them and their rights when the anti-American forces driving Trumpism decide that these toady judges’ complicit role is no longer essential to the planned destruction of American democracy?
In INS v. Cardoza Fonseca, 480 U.S. 421, 452 (1987), Justice Blackmun, in his concurring opinion, cautioned:
“The efforts of these courts stand in stark contrast to — but, it is sad to say, alone cannot make up for — the years of seemingly purposeful blindness by the INS, which only now begins its task of developing the standard entrusted to its care.” INS v. Cardoza-Fonseca, 480 U.S. 421, 452 (1987).
Unfortunately, after years of progress under Administrations with more integrity and intellectual honesty, the interpretation and application of U.S. asylum law is now in, perhaps terminal, regression under this corrupt and intellectually dishonest White Nationalist regime and the kakistocracy it has constructed within the immigration bureaucracy, including the parody of justice and Due Process that takes place daily in the Immigration “Courts.”
Even more tragically, this time around the Supremes and the Article III Circuit Courts, far from being part of the solution and fearless defenders of the rule of law and the rights of vulnerable asylum seekers, have become a key part of the “purposeful blindness” feeding and driving the problem — in effect, “slaughtering the innocents.” By their complicity and fecklessness, they are ripping apart our system of justice and our established constitutional order. I’m sure that Justice Blackmun would be both horrified and outraged by the institutional cowardice and dereliction of duty by his black-robed, life tenured successors.
Due Process Forever; Corrupt, Complicit Federal Courts Never!
COMPLAINT AGAINST CHIEF IMMIGRATION JUDGE FOR ORDERING JUDGES TO IGNORE FEDERAL LAWS PROTECTING CHILDREN
by Bryan Johnson on December 22, 2017
The following complaint was filed today against Chief Immigration Judge, MaryBeth Keller for ordering immigration judges to disregard special legal protections for unaccompanied children as mandated by 8 USC 1232(e):
Gotta believe that this one will get a quick coat of whitewash from EOIR, particularly since Chief Judge Keller’s “rise through the ranks” of the HQ bureaucracy was fueled, in part, by her role as the Assistant Chief Judge in charge of Judicial Conduct.
I always liked Chief Judge Keller, who once worked for me at the BIA. She’s a fundamentally decent person working for a bad guy (Jeff Sessions) and just trying to hang onto her job and limit the damage as best she can until she’s eligible to retire. I doubt that the “offending (and offensive) memo” was her idea. She was undoubtedly ordered to write it by Acting Director McHenry and his “handlers” at the DOJ. And, it certainly echoes Sessions’s clear bias against all immigrants, particularly young people of color. Remember the completely uncalled for “smear job” he did on “Dreamers” while gleefully announcing their planned demise as if it were some great achievement, rather than something of which we all should be ashamed?
Dreamers make our country better; Gonzo Apocalyto, not so much.
“In its crackdown on illegal immigration, the Trump administration is moving an increasing number of immigration judges closer to the border with Mexico. The practice is so widespread that half of New York City’s 30 immigration judges have been temporarily reassigned for two-to-four weeks at a time between early April and July.
The judges have been sent to hear deportation cases in Louisiana, California, New Mexico and Texas, along with Elizabeth, New Jersey, where there’s a detention center. In June, WNYC reported that at least eight of New York City’s immigration judges have been temporarily moved to Texas and Louisiana since March. New information obtained from a Freedom of Information Act request revealed the number to be much higher.
All this reshuffling causes cases to get delayed for months. And New York City’s immigration court already has a backlog of more than 80,000 cases. People wait an average of more than two years go to court to fight against deportation. Some might welcome a prolonged wait. But immigration lawyer Edain Butterfield said her clients get anxious because they’re ready to make their case, when they suddenly learn their judge has had to postpone.
“They don’t know if their judge is going to stay on their case,” she said. “They sometimes have to get new documents, ask for another day off from work, ask their family to take another day off from work.”
David Wilkins, an attorney with Central American Legal Assistance in Brooklyn, said he’s representing a woman seeking asylum whose hearing was recently postponed almost a year — until the summer of 2018. He said she left her children in her home country back in 2012 because of domestic abuse. “It’s extremely difficult for her,” he said. “She’s been separated from her family for so long to sort of live with the constant uncertainty of not knowing what’s going to happen with her immigration proceeding.”
Judges from New York City aren’t the only ones being moved. According to the latest data obtained by WNYC, 128 of the nation’s approximately 325 immigration judges have been shuffled to other locations between early April and the middle of July. Many of those judges come from Los Angeles, Chicago and San Francisco. These assignments, known as details, last for two or four weeks. Some judges have been shifted around multiple times.
The data does not include all judges assigned to hear cases in other locations by video teleconference. A couple of judges in New York City were seeing cases by video at a Texas detention center in May and June.
The reassignments are expected to continue until early 2018, but the Executive Office for Immigration Review, which runs the immigration courts, would not reveal the schedule beyond July.
In April, Attorney General Jeff Sessions announced that all adults crossing the Mexican border would be sent to detention. To support the mission, he said, the Department of Justice had “already surged 25 immigration judges to detention centers along the border.”
Dana Leigh Marks, president of the National Association of Immigration Judges, said her union remains very concerned about the situation.
“The temporary assignment of judges to border courts creates increasing backlogs in the dockets they leave behind in their home courts and may not be conducive to the overall reduction of our burgeoning caseload.”
Nationally, the backlog has surged to more than 600,000 cases and observers believe that number is growing partly because of the Trump administration’s immigration policies.
Moving judges south might sound counterintuitive because illegal border crossings have actually dropped since President Trump took office. But Bryan Johnson, an immigration lawyer on Long Island, has a theory about why more judges are needed down south.
“The people that are deported will be deported in less time,” he explained. “And that is the message they want to send people in the home countries from where the migrants come from.”
There is no guaranteed right to counsel in immigration court, and experts said there are few low-cost immigration attorneys near the border — making it even easier to swiftly deport someone because they are not likely to have representation.
The Executive Office for Immigration Review did not respond to a request for comment. However, the agency has said it is hiring more judges.”
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Get the accompanying audio/video report at the link.
David Wilkins from the Central American Legal Defense Center in Brooklyn, quoted in Beth’s article, is one of my former Georgetown Law Refugee Law & Policy students, a former CALS Asylum Clinic participant, and a former Legal Intern at the Arlington Immigration Court. David was also an Immigrant Justice Crops fellow. He is a “charter member” of the “New Due Process Army.” Congratulations David, we’re all proud of what you are doing!
Attorney Bryan Johnson simply restates the obvious. Under A.G. Jeff “Gonzo Apocalypto” Sessions, the U.S. Immigration Courts are once again being used as an arm of DHS Enforcement rather than a protector and dispenser of constitutional due process. Nobody in their right mind seriously thinks that Sessions is “surging” Immigration Judges to the border to grant more bonds, reverse more “credible fear” and “reasonable fear” denials, or grant more asylum, withholding of removal, or relief under the CAT.
No, the “surge” program is clearly all about detention, coercion, denial, deportation and sending a “don’t come, we don’t want you” message to folks living in fear and danger in countries of the Northern Triangle of Central America. In other words, you might as well cooperate with, support, and/or join the gangs and narco-traffickers — the U.S. has absolutely no intention of saving your life! Nice message!
Don’t be too surprised when multinational gangs and narco-traffickers eventually seize political power in Central America (they have already infiltrated or compromised many government functions). And, we will have sent away the very folks who might have helped us stem the tide. At the same time, we are destroying the last vestiges of due process in the U.S. Immigration Courts, leaving hundreds of thousands of cases and lives “up in the air” and our justice system without a fair and effective mechanism for deciding and reviewing immigration cases. At some point, somebody is going to have to fix this mess. But, you can be sure it won’t be the Trump (“We Don’t Take Responsibility For Nothin'”) Administration.
