"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.
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
Editorial: Sanctuary cities are working just fine, thank you
When Republican Govs. Greg Abbott of Texas and Ron DeSantis of Florida bused and flew migrants to Los Angeles, New York, Washington, D.C., and other so-called “sanctuary cities,” they might have envisioned they were exporting the same chaos as border states have experienced as they grapple with a historic number of migrants. They wanted leaders in these cities to admit they were wrong about their immigrant-friendly policies.
But Abbott and DeSantis are mistaken if they think they are teaching cities with sanctuary polices any lessons with their inhumane political stunts or causing their leaders to rethink their commitment to not treating migrants as criminals.
Those governors and their political allies also seem to be confused about what it means when cities have sanctuary policies. Though policies vary, providing sanctuary means not turning migrants over to federal immigration authorities simply for being in the country illegally. It means treating them like humans in need rather than pawns.
That’s what leaders in Los Angeles, Sacramento and other “sanctuary cities” did as buses and planes dumped dozens of tired and often confused migrants on their doorsteps in recent months. They rallied attention and resources, while religious and other nonprofit organizations stepped up to welcome the migrants with shelter, food and clothes. In some instances, these migrants have even found temporary jobs, illustrating the need for their labor.
Abbott and DeSantis may also not realize that sanctuary policies were designed to help law enforcement keep communities safe. Sanctuary policies were developed because police in many cities such as Los Angeles were frustrated because undocumented immigrants were not reporting crimes or stepping forward as witnesses for fear of deportation.
Critics say these sanctuary cities have laws and policies that shield criminals and obstruct federal immigration policies. But cities with sanctuary policies have lower than average crime rates, higher household incomes and lower poverty rates, according to various studies.
Local authorities did not refuse to cooperate with immigration enforcement, as critics claim. They simply limited the role of local law enforcement in immigration cases, for example, by not using local police to do immigration checks or by not holding an undocumented immigrant in custody for a few extra days to serve federal authorities’ schedules.
Los Angeles is in the midst of transitioning from a “city of sanctuary” to “sanctuary city.” The difference is more than just semantics. The former designation is little more than a statement by city leaders in 2017 that they opposed then-President Trump’s dehumanizing anti-immigrant policies, which included separating young children from their parents. Some of those children have yet to be reunited with their parents years later. Earlier this month, the City Council voted to strengthen the policy by banning city personnel or resources from being used for immigration enforcement.
It’s true that the transports of migrants by the Texas and Florida governors have been inconvenient to cities such as Washington and New York, which have had to scramble to find housing and other resources. But they haven’t done a thing to undermine the foundation on which sanctuary policies were built.
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The money wasted by these GOP nativist neo-fascists could much better be spent on coordinated efforts to help asylum seekers to help themselves and our nation in the process. Obviously, GOP states like Florida and Texas have money toburn.
Also, to the extent that cities “targeted” by these GOP White Nationalist Governors have persevered in the face ofattempts to sow chaos, it has been largely without the coordination, guidance, and leadership of the Biden Administration. Seems like that should be “low hanging fruit” for progressive Democrats to change!
Kids are among the many groups of refugees and asylum seekers ill-served by the Biden Administration’s policies and performance. “World Refugee Day 2023” is a rather grim reminder of America’s failure to live up to its obligations to the world’s most vulnerable!
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A new Biden administration policy has dramatically lowered the percentage of migrants at the southern border who enter the United States and are allowed to apply for asylum, according to numbers revealed in legal documents obtained by The Times. Without these new limits to asylum, border crossings could overwhelm local towns and resources, a Department of Homeland Security official warned a federal court in a filing this month.
The new asylum policy is the centerpiece of the Biden administration’s border efforts.
Under the new rules, people who cross through a third country on the way to the U.S. and fail to seek protections there are presumed ineligible for asylum. Only people who enter the U.S. without authorization are subject to this new restriction.
The number of single-adult migrants who are able to pass initial screenings at the border has dropped from 83% to 46% under the new policy, the Biden administration said in the court filing. The 83% rate refers to initial asylum screenings between 2014 and 2019; the new data cover the period from May 12, the first full day the new policy was in place, through June 13.
Since the expiration of Title 42 rules that allowed border agents to quickly turn back migrants at the border without offering them access to asylum, the administration has pointed to a drop in border crossings as proof that its policies are working.
But immigrant advocates and legal groups have blasted Biden’s new asylum policy, arguing that it is a repurposed version of a Trump-era effort that made people in similar circumstances ineligible for asylum. (Under Biden’s policy, certain migrants can overcome the presumption that they are ineligible for asylum.) The ACLU and other groups have sought to block the rule in federal court in San Francisco, in front of the same judge who stopped the Trump policy years ago.
The new filing provides the first look at how the Biden administration’s asylum policy is affecting migrants who have ignored the government’s warnings not to cross the border.
“This newly released data confirms that the new asylum restrictions are as harsh as advocates warned,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council. “The data contradicts conservative attacks on the rule for being too lenient. Less than 1 in 10 people subject to the rule have been able to rebut its presumption against asylum eligibility.”
. . . .
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Read Hamed’s full story at the link.
None of the statistics cited in the article actually give a full picture, since the don’t account for 1) families, 2) children, and 3) those processed at ports of entry using the highly controversial “CBP One App.” Nor do they give insights into what happens to those denied access to the asylum adjudication system.
In the article, DHS official Blas Nuñez-Neto babbles on about the wonders of mindless extralegal enforcement as a “deterrent.” In a classic example of disingenuous misdirection, Nuñez-Neto appears to suggest that “success” in implementing asylum laws should be measured in terms of the number of individuals denied access or discouraged from applying.
Actually, success in implementing asylum laws should be measured solely by whether 1) all asylum applicants regardless of status or where they apply are treated fairly and humanely; and 2) those eligible for asylum under a properly generous, protection-focused application of asylum laws are actually granted asylum in a timely manner complying with due process. By those measures, there is zero (O) evidence that the Biden Administration’s approach is “successful.”
Moreover, Nuñez-Neto’s comments and much of the media focus skirt the real issue here. Border apprehensions have decreased because asylum seekers in Northern Mexico appear to be “waiting to see” if the “CBP One App System” at ports of entry actually offers them a fair, viable, orderly way of applying for asylum. In other words, does the Biden Administration’s legal asylum processing system have “street credibility?”
So far, CBP One and DHS appear determined to “flunk” that test; the App continues to be plagued with technical and access glitches, and the numbers of appointments available is grossly inadequate to meet the well-known and largely predictable demand.
If the border lurches out of control in the future, it probably will be not the fault of legal asylum seekers. Rather, it will be caused by poorly-conceived and legally questionable Biden “deterrence policies” and the restrictionist politicians (in both parties, but primarily the GOP) who are “egging them on.”That is, an Administration unable to distinguish its friends from its enemies and unwilling to develop a comprehensive strategy for dealing with the inevitably of refugee flows by creatively and positively using and “leveraging” the ample (if imperfect) existing tools under our legal system.
NEW YORK — On the fourth day of his new life in New York City, Antony Reyes set out from the opulent lobby of Manhattan’s Roosevelt Hotelwith an empty wallet and the address of a juice bar on Broadway possibly offering some work.
Reyes had been staying at the crowded hotel-turned-emergency service center, hunting odd jobs during the day along with other newly arrived Venezuelans who navigated the streets of midtown using “Las Pantallas”— the Screens (a.k.a. Times Square) as a landmark.
“I just want to work,” Reyes said in Spanish. “I didn’t come here to be a burden on anyone.”
Reyes, 23, was among the tens of thousands of migrants who rushed to cross the U.S.-Mexico border ahead of May 11, when the Biden administration lifted the pandemic policy known as Title 42. The largest group were Venezuelans, who have been arriving to the United States in record numbers since 2021.
Unlike previous waves of Latin American immigrants who gravitated to communities where friends and family could receive them, the most recent Venezuelan newcomers tend to lack those networks in the United States. Many have headed straight to New York, whose shelter system guarantees a bed to anyone regardless of immigration status.
City officials say they are housing more than 48,000 migrants across an array of hotels, dormitories and makeshift shelters that now spans 169 emergency sites.
New York has spent $1.2 billion on the relief effort since last summer. The ballooning costs have left Mayor Eric Adams feuding with local leaders upstate over who should take responsibility for the migrants, and he has also called out President Biden, a fellow Democrat, for not sending more aid.
Other U.S. cities are struggling with the influx too. Denver, Philadelphia and Washington — all cities with Democratic mayors — have received migrants bused from Texas as part of a campaign by Republican Gov. Greg Abbott to denounce Biden administration border policies. In Chicago, migrants have slept in police stations while awaiting shelter beds.
Officials in those cities are scrambling to find bed space and clamoring for more federal assistance. But the ad hoc nature of the humanitarian effort raises questions about the ability of New York City and other jurisdictions to receive and resettle so many newcomers.
The flow of Venezuelans crossing the southern border has dropped since the Title 42 policy ended, even as many continue arriving in cities in northern Mexico in hopes of reaching the United States. The Biden administration is tightening border controls and urging Venezuelans and others to apply for legal U.S. entry using a mobile app, while expanding the number of slots available for asylum seekers to make an appointment at an official border crossing.
The number of people requesting appointments, however, far outstrips supply.
The influx of migrants in New York has pushed the city’s total shelter population to 95,000, up from 45,000 when Adams took office in January 2022.
“We have reached a point where the system is buckling,” Anne Williams-Isom, deputy mayor for health and human services, told reporters at a news conference in late May.
. . . .
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Read the rest of Nick’s & Joanna’s article at the link.
This Administration has been in office more than two years, with knowledge of the inevitable flow of asylum seekers, particularly from Venezuela and access to some of the best and most innovative human rights experts in the private sector.
Yet, this Administration has failed to 1) put in place an orderly nationwide resettlement system in partnership with the many NGOs and some localities “already in the business;” 2) construct “regional reception centers” to provide food, shelter, representation, and support to asylum seekers during the legal process, as recommended by many experts, and 3)restore functionality and timeliness to the legal asylum systems at USCIS and EOIR by a) cleaning out the “deadwood” (or worse) accumulated during the Trump Administration, and b) hiring experts, not afraid to properly use asylum and other laws to “protect rather than reject” and to replace the anti-asylum culture and legal regimes installed and encouraged at DHS and EOIR under Tump.
Additionally, most Venezuelans can’t be returned anyway, and the Administration’s apparent hope to “orbit” many of them to Mexico, a country far less able to absorb them than than the U.S., is ill-advised at best.
Consequently, updating TPS for Venezuelans and others, thus providing employment authorization and keeping them out of the already dysfunctional asylum system, should have been a “no brainer” for this Administration.
This is a truly miserable absence of creative, practical problems-solving by a group that ran on promises to do better. Given the shortage of affordable housing in NY and other areas, why not “replicate and update” the CCC, WPA, and other public works projects from FDR’s “New Deal?”
Give those arriving individuals with the skill sets opportunities to construct affordable housing for anyone in need, with an chance to live in the finished product as an added incentive! Let migrants be contributors and view their presence as an opportunity to be built upon rather than as a“problem” that can’t be solved.
Not rocket science! 🚀 But, evidently “above the pay grade” for Biden Administration immigration policy wonks!
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CONSTITUTION MOCKED BY ALL THREE BRANCHES AS KIDS CONTINUE TO FACE IMMIGRATION COURT ALONE!
GIULIA MCDONNELL NIETO DEL RIO reports for Documented:
The 10-year-old boy sat in a chair that was too big for him and he asked the immigration judge in Spanish if he could speak to the court.
“Please, don’t deport me,” the boy, Dominick Rodriguez-Herrera, pleaded into the microphone. “I want to stay with my brother.”
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Then he buried his head into his mother’s stomach as they embraced, tears welling in both their eyes. “Don’t cry,” his mother told him softly, with one arm around Dominick, and the other holding her two-month-old son who whined on her shoulder.
The family, from Guatemala, was at the Broadway immigration court in Lower Manhattan last week for an initial hearing in Dominick’s immigration case. Dominick had crossed the U.S.-Mexico border alone in March of 2022, and was designated as an unaccompanied minor.
Dominick’s mother, Nelly Herrera, told Documented the ordeal began when they were both kidnapped in Mexico and separated. She said Dominick escaped their captors and reached the U.S. border. Malnourished and thin from weeks of little food, he managed to squeeze through a wall into California, although she’s not sure where. He was only eight years old, and had no idea where his mother was.
“He doesn’t talk about all that a lot because he says it’s something he doesn’t want to be reminded of anymore,” she said.
After authorities helped Herrera escape her captors in Mexico, she and Dominick were reunited last year. Now, without a lawyer, they are fighting for a chance for Dominick to stay with her in the U.S.
At a time when immigration courts are struggling to manage the high volume of migrants coming to New York City, another section of the system is facing a high volume of deportation cases: those of unaccompanied minors – children who entered the U.S. when they were under the age of 18, without a parent. Many of them show up to court without an attorney, and advocates are concerned that there aren’t enough resources to reach all of them.
“We are definitely seeing an uptick in the numbers,” said Sierra Kraft, executive director of a coalition called the Immigrant Children Advocates Relief Effort (ICARE).
Kraft said she observed the juvenile docket several times this year and found hundreds of children had come to court without legal representation.
“There was a little two year old that was sitting there with a sponsor, and they had no representation and really no idea what to do next. So it’s a real crisis,” Kraft said.
. . . .
At a Senate hearing on the safety of unaccompanied migrant children in Congress last week, Lorie Davidson, Vice President of Children and Family Services at Lutheran Immigration and Refugee Service, testified that most unaccompanied children do not have an attorney to represent them.
“I do not know of any other circumstances in which a three-year-old would have to represent themselves in court. It is indefensible,” Davidson said at the hearing.
. . . .
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Read Giulia’s complete article at the link.
Administrations of both parties have employed and disgracefully defended this clearly unconstitutional, due-process-denying process. The “low point” was probably during the Obama Administration when an EOIR Assistant Chief Immigration Judge infamously claimed that he could “teach asylum law to toddlers” — touching off an avalanche of internet satire. See https://www.aclu.org/video/can-toddlers-really-represent-themselves-immigration-court.
But, the Executive has had plenty of help from Congress and the Article III Courts, who both have failed to end this mockery of constitutional due process as well as common sense. It’s hard to imagine a more glaring, depressing example of failure of public officials to take their oaths of office seriously!
On the other hand, NY Immigration Judge Olivia Cassin, mentioned in the full article, is the right person for the job of handling the so-called “juvenile docket” at EOIR. A true expert in immigration and human rights laws, she came to the job several decades ago with deep experience and understanding gained from representing individuals pro bono in Immigration Court.
She is a model of what should be the rule, not the exception, for those sitting on the Immigration Bench at both the trial and appellate levels. Although AG Garland has done somewhat better than his predecessors in “balancing” his appointments, EOIR still skews far too much toward those with only prosecutorial experience or lacking ANY previous immigration and human rights qualifications.
Consequently, poor, inconsistent, and uneven judicial performance remains endemic at EOIR and not sufficiently addressed by Garland in his two plus years in office. Just another reason why Garland’s failing courts are running a 2 million case backlog and are unable to provide the nationwide due process, guidance, leadership, and consistency that EOIR was supposedly created to furnish.
Brilliant, well-qualified, and committed as individuals like Judge Cassin are, they are not going to be able to solve this problem without some help and leadership from above. Sadly, this doesn’t appear got be on the horizon.
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UPHOLDING THE RULE OF LAW & HUMAN DECENCY FOR REFUGEES HAS BEEN LEFT LARGELY TO NGOs IN LIGHT OF THE USG’S SYSTEMIC FAILURE
Jenell Scarborough, Pathway to Citizenship Coordinator at EL CENTRO HISPANO INC, reports on Linkedin on a on a more optimistic note about the activities of those who actually are working to preserve and extend the rule of law and human decency to refugees:
What a way to celebrate World Refugee Day, with a community listening section where we meet community leaders who every day make extraordinary efforts to join forces and serve Immigrants and Refugees. We’re not just hearing from Eva A. Millona Chief, USCIS Office of Citizenship, Partnership and Engagement and the Chief of Foreign Affairs for Foster America. Thanks to Cristina España for keeping us connected with local government agencies and making visible the work of grassroots organizations, where El Centro Hispano works tirelessly. Without a doubt a great night!
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Way to go, Jenell. Encouraging to know that you are taking our legal obligations to refugees seriously, even if too many USG officials in all three branches aren’t! (Eva A. Millona of USCIS, mentioned in the post appears to be a rare exception among those in leadership positions within this Administration).
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🇺🇸 MAKE EVERY DAY WORLD REFUGEE DAY, & Due Process Forever!
Every day, thousands of people flee their homes in search of a better life for their families. Global Ministries and the United Methodist Committee on Relief (UMCOR) provide support for refugees and migrants around the world, seeking to fulfill the biblical mandate to “love thy neighbor” and “welcome the stranger.”
Tiny mustard seeds, as Jesus described in his parable, have a potential to grow into something big or pervasive that spreads throughout a field. Our hope is that by learning more about migrants in local communities and addressing their needs through these grants, the “seed” of welcoming strangers might be planted in new ways in congregations around the country.
WHAT IS THE MUSTARD SEED MIGRATION PROGRAM?
The Mustard Seed Migration Grant program is designed to encourage local United Methodist churches to engage in ministry to migrants in their midst. UMCOR will award grants of $2,000 USD to up to 100 United Methodist local churches to engage in new, one-time community-based service projects and ministries focused on migrants and refugees.
The goal of this program is to nurture a deeper understanding and care for the most vulnerable in our communities. We also encourage participating congregations to think about what they might do on a long-term basis, how they might get involved in advocacy to address systemic injustices present in immigration policy or consider how they might more completely live into a new understanding of church as the kingdom of God, actively engaged in caring for the most vulnerable in the community.
2023 APPLICATIONS ARE OPEN
Completed applications will be evaluated on an ongoing basis. Though the final deadline is October 1, 2023, we encourage churches to submit their applications as soon as possible, since awards will be given on a first-come first-served basis. Applicants will be notified within four weeks of the application submission date.
Applications must be signed by the church’s senior pastor and lay leader. Submit a completed, signed application via email to mustardseed@umcor.org.
DOWNLOAD THE 2023 MUSTARD SEED GRANT APPLICATION
Only local United Methodist churches are eligible for this grant. Churches that have not participated previously in this program will be given priority. View detailed program criteria, project examples and applications instructions here:
Project examples
Some examples of Mustard Seed Migration Grant projects might include, but are not limited to, the following.
Providing food or nonfood items for basic needs
Supporting school enrollment through parent outreach or purchase of school supplies
Equipping children with musical or sports equipment to facilitate extracurricular involvement
Offering English, financial literacy or civics classes for adult learners or tutoring for students
Supplying families with cash vouchers for emergency rent, utilities or transportation assistance
Facilitating access to internet through provision of cell phones, laptops or internet access
Distributing bicycles for transportation assistance
Assisting a newly arrived refugee family in setting up their new apartment
Program criteria
Application instructions
Final submission deadline:
Completed applications will be evaluated on an ongoing basis, within four weeks of submission. Though the final deadline is October 1, 2023, we encourage churches to submit their applications as soon as possible, since awards will be given on a first-come first-served basis.
Maximum grant amount: $2,000 USD
For more information or to submit a completed application, please contact: mustardseed@umcor.org.
See the list of 2022 Mustard Seed Migration Grant recipients here.
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Many thanks to Debi Sanders for alerting me to this! UMCOR has done some really great humanitarian/social justice work!
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).
[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.
[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?
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!
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.
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!
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!
A year after Texas sent the first buses, this is clear: From a political stunt grew a network that now coordinates welcoming efforts across state lines
. . . .
When Abbot announced that he was sending the buses, many people across the country saw it for what it was: a political stunt. In a statement at the time, Abbot criticized the Biden administration as turning “a blind eye to the border crisis” and said, “Texas should not have to bear the burden of the Biden administration’s failure to secure our border.”
We can debate Abbot’s actions, and some of us undoubtedly will see a show of strength where others of us see a show of cruelty, but what is not debatable is what happened after those buses started arriving. People stepped up. From a political stunt grew a network of dedicated community members in D.C., New York and elsewhere who now coordinate across state lines to help migrants.
“What started it was no one else was going to do it,” said Madhvi Bahl, an organizer with the Migrant Solidarity Mutual Aid Network, a group of community members and organizations in the D.C. region dedicated to welcoming migrants. She said that because the city didn’t get involved until months after the buses started arriving, volunteers were on their own to greet arrivals, collect supplies and raise money to provide temporary housing.
. . . .
*********************
Read Theresa’s complete article at the link.
Once again, the Biden Administration failed to take leadership and to plan for the obvious. Some have suggested that leaving asylum seekers to be political pawns for GOP nativist governors was part of the Administration’s cruel and inept “border deterrence program” which they have substituted for competently administering asylum laws.
Not for the first time, NGOs and advocates have been left to pick up the pieces from the Administration’s failed immigration policies. Fortunately, these NGOs are more talented,creative, and motivated than Administration politicos and bureaucrats.
Rev. Craig Mousin Ombudsperson Refugee and Forced Migration Studies, Grace School of Applied Diplomacy DePaul University PHOTO: DePaul Website
Along the same lines as Theresa’s article, my friend and NDPA stalwart Rev. Craig Mousin reports similar successful responses in Chicago:
I forgot to add one more item of good news that your talk suggested. You mention the nativist driven bus rides from Arizona, Florida, and Texas. We have had something remarkable happen in Chicago. A group of five or six faith-based individuals and NGOS had been meeting prior to the bus trips to try and find housing for asylum-seekers. That group, the Chicago Sanctuary Working Group (SWG) meets weekly. It remains an informal group, but it now includes over 30 organizations and individuals. It has found private housing for over 100 families or individuals along with case management for the social service needs while attempting to link them to attorneys from NIJC, CLINIC, other Chicago based groups as well in some cases helping to find funding to pay low bono AILA attorneys. Housing has included individual families welcoming asylum-seekers into their homes for varied amounts of time, some temporary financial support, and some churches opening their doors. In addition, it has received a grant and now rents a building housing about 15 families along with in premise social workers. The national United Church of Christ gave it a small grant and they are hosting a Chicago-area breakfast on May 3 to encourage more congregations to open their doors or recruit individual families to offer asylum-seekers a room in their homes. Almost completely volunteer-driven, it has been an amazing response to this difficult problem. Full disclosure, my wife is on the steering committee, but the stories have been inspirational as a citizen-driven response to bad federal and state policies.
Think what could be accomplished with better Federal leadership and coordination! Why can’t the Biden Administration get its act together on social justice?
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 creatinga 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!
Beth Reinhard Investigative Reporter Washington Post PHOTO: WashPost WebsiteMaria Sacchetti Immigration Reporter, Washington PostMolly Hennessy-Fiske Immigration Reporter Washington Post PHOTO: WashPost Website
This WashPostarticle by Beth Reinhard, Maria Sacchetti, and Molly Hennessy-Fiske sets forth in detail how the courage and perserverance of asylum seekers, the humanity and initiative of the local community in Martha’s Vineyard, timely assistance by the Massachusetts Government, and heroic efforts by pro bono lawyers, came togetherto“redirect” the cruelty behind nativist GOP Govs’ idiotic political stunt.
. . . .
Nearly two weeks later, though, Jose is one of dozens of migrants who now question Perla’s efforts to entice them onto a flight that unexpectedly ended on the wealthy island of Martha’s Vineyard — a political operation engineered by Florida Gov. Ron DeSantis (R) to gin up outrage over the United States’ border crisis.
Much remains unknown about the effort. While DeSantis has embraced his role in staging the flight, arguing that it protected Florida from “negative ramifications” of a border crossing surge, his office has been less clear about the purpose of nearly $1.6 million paid to a contractor, according to state records, and the role of state officials in developing the plan.
But Post interviews with several migrants directly recruited by Perla, as well as court documents and state records, paint a picture of a carefully orchestrated, taxpayer-funded operation with little apparent concern for the interests of the migrants caught in the middle. Florida officials began researching Texas’s migrant situation weeks before the flights, and a contractor with ties to the DeSantis administration later handled the efforts. Some migrants, meanwhile, say they were misled into signing documents after being lured into the trip with food and hotel stays.
. . . .
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Read the complete article at the link.
Imagine what could be accomplished if Texas and Florida officials actually worked to HELP resettle individuals in an orderly and reasonable manner that recognized their humanity and respected and facilitated their legal rights to apply for asylum and other protections in the US? What if the Biden Administration actually brought in a team of qualified experts to lead and operate our existing refugee and asylum systems fairly and effectively instead of using stale approaches and personnel who simply lack the skills, vision, and courage to get the job done?
Fortunately, the asylum seekers, NGOs, and state and local officials, and ordinary citizens in welcoming American communities have stepped up to get the job done notwithstanding the glaring failures and counterproductive efforts of the previously-mentioned groups!
The preposterous attempt by DeSantis to link “sanctuary” with asylum seekers! Loosely speaking, “sanctuary jurisdictions” are those that have declined to voluntarily cooperate with certain ICE enforcement activities, primarily directed at so-called “civil” immigration enforcement.
But, the Venezuelan asylum seekers “orbited” to Martha’s Vineyard had all been examined by DHS and released to pursue their legal requests for asylum in the US! Indeed, most probably turned themselves in to DHS Enforcement after being forced to cross illegally to present claims that the U.S. Government (with the connivence of GOP state Attorneys General and biased right wing Federal Judges) has refused to accept at legal ports of entry as they are supposed to do under our laws.
These individuals are NOT “wanted” by ICE enforcement. There is no connection whatsoever between any “sanctuary jurisdiction’s” decision not to cooperate with ICE enforcement in rounding up certain individuals for possible deportation and legal asylum seekers from Venezuela (or any other country) pursuing their claims, beyond the fact that sanctuary jurisdictions value human dignity and are more welcoming to migrants of all types and statuses when called upon to provide assistance to them.
Venezuelan asylum seekers are part of the larger forced exodus of 6-7 million Venezuelans escaping the repression of the Maduro regime. 95% of these forced migrants have found refuge in countries OTHER than the U.S. Colombia is the largest destination country with at least 1.7 million Venezuelans, many times more than the U.S.
The vast majority of Venezuelans have found refugee in countries far poorer and less able to resettle them than the U.S. The idea that “sanctuary policies” of Martha’s Vineyard or any other U.S. jurisdiction is driving Venezuelan asylum seekers is beyond absurd. Indeed, it now appears that the Venezuelan asylum seekers “orbited” to Martha’s vineyard as part of the DeSantis scheme neither knew where it was nor had any idea they were being sent there until they were well on their way!
Indeed, the decision tosend these individuals to an island with neither a DHS Office nor an Immigration Court (as opposed to, say, resettling them in Boston with advance notice), and with few “own site” pro bono lawyers, actually undermined their ability to comply with legal requirements and squandered resources that could and should have been put into getting timely and fair adjudications of their legal asylum applications. But, even in the face of GOP-led efforts to create maximum chaos, these legal asylum seekers and their supporters are committed to making our legal system work — against all odds!
Finally, congrats to Molly Hennessy-Fiske, long time LA Times immigration reporter who has now joined the team at WashPost!
Professor Erin Barbato Director, Immigrant Justice Clinic UW Law Photo source: UW Law
Good morning Judge Schmidt,
I hope this email finds you well. It is already getting chilly in Wisconsin but fall is one of my favorite seasons here. In case you are interested, this is a little piece that Newsy put together about a lovely family and Ngwa, an asylum seeker from Cameroon, who became part of their family. How a Cameroonian Immigrant Was Granted Asylum in the U.S. (VIDEO) (newsy.com) I do believe there are other families like this across the country willing to welcome people. The political use of humans seeking refuge is horrifying these days.
Thank you for all you do! I appreciate you.
Erin M. Barbato
Director Immigrant Justice Clinic
University of Wisconsin Law School
975 Bascom Mall
Madison, WI 53706
(608)262-2276
She/Her/Hers
The University of Wisconsin-Madison is built on the ancestral land of the Ho-Chunk Nation. In an 1832 treaty, the Ho-Chunk were forced to cede this territory. We respect the inherent sovereignty of the Ho-Chunk Nation, along with the eleven other First Nations of Wisconsin.
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View the video at the above link! Thanks, Erin, my friend for sending this in and for all that your and your wonderful students do for humanity and for Due Process in America! Many thanks to the Swandbys and other great American families for standing by refugees in need and being role models for the best in America at a time when so many of our politicians and their followers are “modeling bad behavior and lack of fundamental values!”
It’s always good to keep in mind that many Americans do have sound values and welcome asylum seekers and other immigrants, rather than using their situation to engineer political farces at the expense of vulnerable humans who have come here seeing legal refuge and are allowed to be in the US while pursuing their claims. As I have pointed out many times, any government official truly interested in addressing migration issues would prioritize spending money for 1) representation of asylum seekers, 2) orderly relocation to places where support systems are available and asylum claims are more likely to be fairly an timely adjudicated. But, that would take a thoughtful, cooperative, governing for the common good approach rather than wasteful political stunts.
Voters in both Florida and Texas will have a chance to remove their “stuntmen” in November. Unfortunately, however, it’s not clear that will happen.
We also shouldn’t let the Biden administration “off the hook” for: 1) failing to put in place a reasonable program for resettling asylum seekers away from stressed border communities; 2) the abject failure of the Immigration Court’s asylum adjudication process which is driving much of the haphazard response to legal asylum seekers; 3) the failure to achieve meaningful reforms, training, and appropriate staffing of the USCIS Asylum Offices (even assuming that the “new asylum regulations” were the answer, the implementation has been inexcusable, inept, and ineffective, just as many experts predicted); 4) the gross failure to establish a robust, generous, realistic refugee admission system for the Western Hemisphere to process refugees for admission before they are forced to come to our borders; and 5) their overall failure of leadership on refugee and asylum issues in both the national and international arenas.
It is not easy to convey the magnitude of the ongoing disaster at EOIR, the Executive Office for Immigration Review, the office that oversees our nation’s Immigration Courts. Simply stated, the agency is rescheduling and advancing hundreds–maybe thousands–of cases without notifying attorneys, checking whether we are available to attend the hearings or checking whether we have the capacity to complete the cases.
On its face, this appears to be a mere scheduling problem. But in effect, it is a vicious and unprecedented assault on immigrants, their attorneys, and due process of law.
“Advancing hearings with no notice and no time to prepare? Why didn’t I think of that?!”
For me at least, the problem started small. A few cases were rescheduled and advanced without anyone at the Immigration Court bothering to inquire about my availability: Your case that was scheduled for two years in the future has been advanced and is now set for two months in the future. I was angry and upset, but I did not want to let my clients down. So I set other work obligations aside. I set family time aside. I put off doctors appointments. And I completed the cases, which were approved. I hoped that these cases were anomalies and that EOIR would stop this unfair and abusive practice. But that was not to be.
Instead, EOIR has dramatically expanded its effort to reschedule cases, often without providing sufficient notice–or any notice–to get the work done for our clients. As best as we can tell, the problem is occurring in California, Colorado, Maryland, and Virginia. I myself have had about a dozen cases rescheduled and advanced (so far). These cases had been scheduled for 2023 or 2024, and suddenly, they are now set for the fall of 2022. Other attorneys have had 20, 30 or more cases advanced, including some that were double booked. One lawyer reported having seven cases scheduled for the same week and 47 cases set for one month. Another lawyer purportedly told a judge that if she had one more case scheduled within the next six months, she would commit suicide.
Here, I want to break down what is happening, so noncitizens in Immigration Court can at least have some idea about EOIR’s disruptive practices.
First, when I say that EOIR is not providing notice of the hearings, that is not entirely accurate. They are not sending us a notice or contacting us in advance. Instead, they are posting the new hearing dates on our portal. What does this mean? Each attorney has access to a portal page with a calendar. We can scroll through the calendar one month at a time. Days with hearings are highlighted, and we can click on those days to see what is scheduled. When I review my calendar, I often find new hearings that were not previously on the schedule. The only way to know whether a new hearing has been scheduled is to scroll through our portals month-by-month and compare what’s there with our existing calendar–a burdensome process that leaves plenty of room to overlook a date. Needless to say, every time I sign on to the portal, I feel a nauseous sense of dread about what I might find.
Once we discover the new date, we need to review the file, contact the client, and determine whether we can complete the case. This all takes time. If we cannot complete the case, or we do not have an attorney available on the scheduled date, we need to ask for a continuance. Of course, clients who have been waiting years for a decision usually want to keep the earlier hearing date. They do not understand why we cannot complete the work or why we are not available that day. Their perspective is perfectly reasonable, but they only have one case, where lawyers have many and we are daily being ambushed by EOIR with additional work. All this can result in conflicts between clients (who want their cases heard) and lawyers (who need time to get the work done). It also makes it difficult to serve our other clients, who must be pushed aside to accommodate the new work randomly being dumped on us.
Even if the client agrees to request a continuance, that does not solve the problem. Motions to continue can be denied. Even when they are granted, the judges tend to reset the date for only a few weeks in the future, which is often not enough time to properly complete the work. Other times, judges simply do not rule on the motion, so we are left to prepare the case, not knowing whether it will go forward or not.
Also, while we sometimes discover a new date that is a few months in the future (and so in theory, we might have time to do the work), other times, the new date is only a few weeks in the future. Since the evidence, witness list, and legal brief are due at least 15 days before the hearing, and since even a “simple” asylum case takes 20 or 30 hours to prepare, this is not nearly enough time. Worse, some cases are randomly advanced and placed on the docket after the evidence is due, and so by the time we have “notice” of the case, our evidence is already late.
Adding insult to injury, another common problem is that cases are still being cancelled at the last minute. And so we drop everything to prepare a case, only to have it postponed once all the work is done. Since this is all utterly unpredictable, it is impossible to prioritize our work or advise our clients.
Again, if this were only a few cases, attorneys could set aside other work and get the job done. But lawyers who do immigration law tend to have many cases, and we are seeing dozens and dozens of cases advanced with no notice. This is such a blatant and obvious abuse of due process that it is impossible to believe it is accidental. I might have expected this policy from the Trump Administration, which was hell-bent on restricting immigration by any means necessary. But as it turns out, President Biden’s EOIR is far worse than President Trump’s. Indeed, the current level of callousness would make even Stephen Miller blush.
The solution to these problems is so basic that it should not need to be said, but here it is anyway: EOIR should stop advancing and rescheduling cases without notice and without consideration for whether we have time to complete the work. Unless something changes, we can expect many noncitizens to be unfairly denied protection, immigration attorneys will leave the profession (or worse), and EOIR will become illegitimate. Let us hope that sanity and decency will soon return to the Immigration Courts.
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Ever wonder why Dems struggle to govern and often lose elections they should win?This is a pretty good example of how the Biden Administration, through cowardice, ignorance, arrogance, and failure to prioritize racial justice and immigrant justice are “shooting themselves in the foot, over and over!”
They are going into midterms where every vote counts. They need “all hands on board” in the human rights community to help bail them out of the gross failures of the White House, Garland, and Mayorkas to reestablish a fair, efficient, and properly robust system for legally admitting refugees and processing asylum claims at the borders and the interior. This, in turn, has empowered disingenuous nativists like DeSantis and Abbott to “play games with human lives.”
But, the Biden Administration “strategy” is to do everything possible to offend and drive a wedge between them and some of their most loyal and important groups of supporters — the immigration, human rights, and racial justice communities. (Make no mistake: The ongoing disaster at Garland’s EOIR disproportionally targets individuals of color.)
Garland seems to be impervious to his self-inflicted disaster at EOIR.I think that advocates are going to have to sue to bring his “Stephen Miller Lite” travesty of justice at EOIR to a grinding halt. Those are resources that could and should be used to help asylum seekers “orbited” around the country by DeSantis and Abbott.
I, for one, have been saying for a long time that Garland’s unfathomably horrible performance at EOIR is a threat to our entire justice system and to the future of our nation. Sadly, every day, Garland proves me right!
The real shame: It was all so preventable with just a modicum of competence and backbone from our failing AG!
🇺🇸 Due Process Forever! Merrick Garland’s deadly Clown Courts 🤡, Never!
Immigrations expert outlines next steps for Martha’s Vineyard migrants
Governor Baker has activated 125 members of the Massachusetts National Guard to assist in relief efforts for the nearly 50 migrants who came here last week.
Those migrants are now staying at Joint Base Cape Cod after they were flown into Martha’s Vineyard on Wednesday.
“There’s no doubt about the fact that it was a political move, not a move calculated to make the system work or to help people,” said Paul Wickham Schmidt, a retired U.S. Immigration judge and adjunct professor at Georgetown University.
Schmidt says it was surprising to see dozens of migrants dropped off on Martha’s Vineyard last week without any notice.
“With advanced notice, I think they could have done an even better job and probably with more focus on helping the individuals and less focus on what’s happening here,” said Schmidt.
People living on Martha’s Vineyard jumped into action to provide food and shelter for the immigrants from Venezuela, and now this weekend, they’ve been moved to dorms set up at Joint Base Cape Cod, where MEMA is trying to keep families together while providing not only beds and food, but also services from health care to legal support.
“Getting somebody who can take a personal interest and can make sure people can check in where they’re supposed to,” said Schmidt.
Schmidt says now, the migrants will need lawyers to help them check into an ICE office, Immigration court and an asylum office – all of which didn’t exist on Martha’s Vineyard.
Even though the last few days have been confusing, Schmidt believes the migrants will get the help they need as they get closer to Boston.
“This could have some silver linings because I think the people aren’t in Texas, which is sort of an asylum-free zone, where the judges deny almost every asylum case and there’s obviously a hostile local attitude,” said Schmidt.
Schmidt says immigration courts in Massachusetts are more likely to grant asylum cases than in Texas or Florida.
State leaders say they appreciate all the donations and support coming in for the migrants, but at this point they can’t accept any donations at Joint Base Cape Cod.
If you’d like to donate to the relief efforts, you should send an email to the Massachusetts Voluntary Organizations Active in Disasters at MAVOAD@gmail.com.
As the latter article from Paul Waldman @ WashPost points out, the GOP has no answers whatsoever about how to reform the U.S. immigration system. Dems have some proposals, but lack qualified, expert dynamic leadership on the issue.
Even without legislation, there are lots of things the Biden Administration could have done by now to fix the broken asylum and refugee systems and make them functional, using current law! The biggest missed opportunity is painfully obvious to all expert observers: Fix the broken Immigration Courts starting with the Trump holdover BIA which is still a serious and unconscionable drag on our entire legal system!
For example, given the size and importance of the Venezuelan refugee flow, and the mass of available documentation about the truly horrible human rights conditions under the Maduro regime in Venezuela, there should be many BIA precedents guiding practitioners and judges on how to prepare and grant asylum to Venezuelan asylum seekers. This would encourage and facilitate DHS, the private/NGO bar, and Immigration Judges in rapidly moving Venezuelan asylum grants through the system in a timely fashion.
Instead, there are no favorable Venezuelan asylum precedents that I know of. Moreover, almost all the recently BIA precedents on asylum are crabbed, legally deficient, often factually misleading, sometimes anti-historical, “prompts” on how to manipulate the law to improperly deny needed protection. They send grossly improper signals to already under-trained Immigration Judges that “any reason to deny asylum” is the BIA’s “comfort zone.”
There is an old saying that “elections have consequences.” But, apparently, when Dems win and Merrick Garland is the Attorney General, not so much.
Unfortunately, given the disorder and dysfunction promoted by Garland’s Immigration Courts’ biased and defective handling of asylum cases — essentially “working overtime” to manufacture bogus reasons to deny “slam dunk” asylum grants and providing defective guidance — and the disturbing lack of competent leadership on immigration and human rights by the Biden Administration, that’s going to take litigation in the Article IIIs. Getting individuals out of “Asylum Free Zones” operating in violation of sound legal standards for adjudicating asylum cases, primarily in the 5th and 11th Circuits, will be a huge “plus.”
Keep the focus on the “good guys” who need our help! That’s the best way of taking it to the cowardly grandstanders using humans as pawn and “photo ops.” It’s also the best way of dealing with clueless Dems, like Garland, who empower the “DeSantis’s of the world” by failing to fix our failing legal refugee and asylum systems and to vigorously stand up for the legal and human rights of those needing and deservingprotection!
There is a “great story” to tell about the contributions of those granted asylum and other immigrants to America. If Garland and “tone deaf” Dems are afraid to tell it, it’s up to the rest of us to do the work for them!
Waves of migration through Mexico and Central America, and people who go missing, will increase in 2022 due to high levels of violence in the region, the International Committee of the Red Cross (ICRC) said.
Battle-scarred ghost town bears mute witness to Mexico’s drug wars
“In many countries, violence is wreaking more and more havoc, and that’s why there are more and more migrants,” ICRC representative Jordi Raich told Reuters in an interview Wednesday. “And it’s not a situation that is going to improve or slow down, not even in the years to come.“
Immigration authorities in Mexico detained 307,679 migrants in 2021, a 68% increase compared with 182,940 detentions in 2019, according to government data.
Shelters in Mexico were completely overwhelmed last year, filled with frustrated migrants unable to continue their journey to the United States, Raich said.
Many migrants get “stuck” along Mexico’s southern or northern borders, Raich said, where they face “enormous economic constraints” and are able to find only basic services.
The administration of Joe Biden has faced record numbers of migrants arriving at the southern border and has implored Mexico and Central American countries to do more to stem the wave.
Disappearances in the region have not slowed either, the Red Cross said in a report released Thursday. Mexico recently surpassed 100,000 people reported missing in the country.
In El Salvador, 488 missing person cases remain unsolved, and in Guatemala, the number of missing women rose to six a day, the Red Cross report said.
Raich said it will be difficult to respond to the root causes of migration immediately. A joint effort among countries like El Salvador, Guatemala and Honduras is necessary, he added.
“Migration is not going to stop,” Raich said. “If you try to prevent it or strictly regulate it, people start to pile up at the borders, which is happening in Mexico and other countries.”
Meanwhile, the Biden administration on Thursday rolled out a sweeping new regulation that aims to speed up asylum processing and deportations at the US-Mexico border, amid a record number of migrants seeking to enter the US.
The announcement of the new rule came as US officials are debating whether to end a separate Covid-era policy that has blocked most asylum claims at the border. The asylum overhaul could provide a faster way to process border crossers if the Covid order is ended.
. . . .
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Read the full article at the link.
Cruelty, walls, detention, family separation, border militarization, expedited hearings — they aren’t going to stop human migration.We will be able to increase border deaths, expand the scope of “black market migration,” increase our “underground population,” and enrich human smugglers. Good policy?
Meanwhile, it’s obvious that the “disingenuous internal debate” on Title 42 has nothing whatsoever to do with public health and everything to do with whether continued illegal and immoral suspension of asylum protections at the border will prove politically advantageous to the Biden Administration. It won’t! It might, however, cost Dems support among progressives.
There is, of course, no known medical evidence that “single males” present a greater COVID threat than families! Indeed, there is no known medical evidence to suggest that any potential asylum applicant is a threat to the health and safety of the US.
The whole thing is a deadly farce! Why aren’t Hill Dems calling for oversight of Garland’s sitting by and watching while the law and ethics are pulverized around him? Or worse yet, what about his Department’s defense of abrogation of our laws? Believe it or not, we actually have asylum and protection laws on the books, duly enacted by Congress, although you’d never know it from Garland’s feckless performance!
Meanwhile, WashPost and other so-called “mainstream media” continue to hype stories about increased border pressure. So, continuing to violate asylum law is a viable alternative “strategy?” Give me a break! How is violating the law going to stop folks from fleeing deadly conditions in their home countries? It won’t, as the ICRC points out above!
What it will do, as also pointed out above, is kill more asylum seekers, subject them to rape, torture and other harm, enrich smugglers, and increase the extralegal population in the U.S.!
Blaine Bookey Legal Director Center for Gender & Refugee Studies @ Hastings Law Photo: CGRS website
It also will increase those waiting in vain at the Southern Border for the reopening of a legal asylum system that has abandoned them! In the words of one expert:
“The conditions are squalid,” said Blaine Bookey, the legal director of the Center for Gender and Refugee Studies at University of California, Hastings College of the Law, who led a team interviewing dozens of families waiting in Tijuana for the federal government to lift Title 42. “There is real lack of access to sanitation, medical care, adequate food, all of the real basic fundamental necessities.”
. . . .
“There have been some exceptions made for Ukrainians, which we’re happy to see, but the policy should be ended for everyone,” Bookey said. “There was never a public health justification, and there certainly isn’t now.” (WashPost, supra).
Meanwhile, back at the ranch, Sen. John Cornyn (R-TX) babbles nativist nonsense:
Sen. John Cornyn (R-Tex.) said at a committee hearing last week that the influx has “completely derailed” efforts to discuss improving legal immigration to the United States, which he said states such as Texas need to staff hospitals and fill jobs. Border states such as Texas and Arizona are bracing for higher numbers of unauthorized immigrants in coming weeks, he said.
“Rather than deter would-be migrants with weak asylum claims from taking the dangerous journey to the southwest border, the administration has rolled out the welcome mat and created new incentives to illegally immigrate to the United States,” he said at the March 15 hearing before the Senate Judiciary subcommittee on immigration, citizenship and border safety.
To my knowledge, neither Cornyn nor any of his other GOP nativist buddies have ever adjudicated an asylum application. Nor have they represented asylum seekers before the Asylum Office or in our broken Immigration Courts. So, how would that have any idea whether certain asylum claims are “weak” or not? They wouldn‘t!
Moreover, we haven’t had a functioning asylum system at our Southern Border for years. So, how would anyone know how many of the claims are “weak?” They wouldn’t?
Remarkably, apparently unknown to Cornyn and his scofflaw buddies, we actually have laws to deal with his concerns. When the legal system is “open for business” — which it isn’t now — those claiming asylum at the border are subject to “summary exclusion” by DHS officers. Their claims are then expeditiously reviewed by Asylum Officers for a “credible fear” of asylum. Those who don’t establish credible fear, subject only to cursory review by an Immigration Judge, can be immediately removed by DHS.
Historically, when the system was at least nominally functional, those “passing” credible fear have been turned over to the now dysfunctional Immigration Courts. Under Trump, these “parodies of courts” were “weaponized” into “asylum killing grounds.”
Sessions and Barr packed their non-independent “captive courts” with “judges” perceived to be “enforcement oriented” and “anti-asylum” — willing to skew the law and facts as necessary to deny and deport. This mess is “led” by an appellate body, the BIA, which contains some of the most notorious members of the “Asylum Deniers’ Club” — folks who got their appellate jobs under Barr specifically because as Immigraton Judges they denied almost every asylum case that came before them! In other words, even when there was some semblance of a legal asylum system, it was redesigned under Trump to be systemically unfair to asylum seekers, particularly women and applicants of color. For sure, racism and misogyny played into this unseemly scenario.
Remarkably, Garland has chosen to maintain this dysfunctional, biased, and broken system largely in the form it existed and with almost all of the same unqualified or questionably qualified “judges” he inherited from Session and Barr!
Our broken asylum system can’t and won’t be fixed without dealing head-on with the overarching problem — systemic anti-asylum bias, poor quality decision-making, grotesque inconsistencies, and beyond incompetent administration of our Immigraton Courts by the DOJ!
Remarkably, Garland’s proposed solution is yet another “designed to fail” gimmick — expedite cases in his broken and biased, anti-asylum system! So the solution to a defective court system, infected with anti-asylum bias and poorly qualified judges turning out defective decisions is to make it “go faster!” The new regulations also fail to deal with the huge due process issue of lack of competent representation in the asylum system, particularly the Immigration Courts. Come on man!
We don’t need over 500 pages of new regulations and sophomoric, alternate universe “time limits” for an agency that can’t even find its files! What we need is for Garland to do the job he was hired to do more than a year ago! That’s “clean house” at the Immigration Courts, bring in competent, fair judges who have experience in Immigration Court and are legitimate, well-recognized asylum experts — starting with a new BIA (save for their one qualified Appellate Immigration Judge Andrea Saenz, a Garland appointee).
Get expert judges, intellectual leaders, and competent judicial administrators into the broken Immigration Court system to provide coherent, practical asylum legal guidance and work with advocates, the Asylum Office, and DHS to get a functional and fair legal asylum system in place and operating smoothly and efficiently at the border. It should already be in place by now. That it isn’t, is entirely “on Garland!”
Then, with experts who actually are committed to fairly and impartially applying asylum law in place, we’ll see, for the first time, how many of the asylum claims are valid and how many aren’t! And, while we’re at it, we might find that many of the “legal” immigrants Texas and the rest of America needs are right there at our borders — just waiting for our legal system to do justice and admit them. Asylum seekers are seeking legal immigration! It the USG that’s acting “illegally” here!
Biden promised to establish a fair, orderly, and humane immigration system. Has he done it?
Paul Schmidt, a former chairman of the Board of Immigration Appeals, doesn’t think so. He claims that Biden could have established due process and the rule of law at the border and expanded refugee programs in potential sending countries but he didn’t, “preferring instead to use modified versions of ‘proven to fail deterrence-only programs’ administered largely by Trump-era holdovers and other bureaucrats insensitive to the rights, needs, and multiple motivations of asylum seekers.”
Predictably, nobody is pleased.
The problems Schmidt describes are not limited to the border and the treatment of asylum seekers. They are reflected in many of Biden’s other immigration measures too.
Nolan Rappaport for the Hill reports that Paul Schmidt, former chair of the Board of Immigration Appeals who now blogs at Immigration Courtside, does not think that President Biden has done enough on immigration. Schmidt claims that Biden could have established due process and the rule of law at the border and expanded refugee programs in potential sending countries but he didn’t, “preferring instead to use modified versions of ‘proven to fail deterrence-only programs’ administered largely by Trump-era holdovers and other bureaucrats insensitive to the rights, needs, and multiple motivations of asylum seekers.”
Thanks, guys! As I have told both of you, I really appreciate the huge contributions you have made to informing the public about this all-important, yet often misunderstood or “mythologized,” issue!
Following up on my last thought, I urge everyone to view this recent clip from “Face the Nation,” posted by Kevin on ImmigrationProf, in which reporter Ed O’Keefe succinctly and cogently explains how immigration is the “most underreported issue of 2021.” It’s fundamental to everything from COVID, to the economy, to voting rights, to racial justice, to climate change, to our position in the world.
And, I say that the absolute dysfunctional mess that Garland has presided over in hisbroken and jaw-droppingly backlogged Immigration Courts is the most widely ignored, misunderstood, mishandled, and under-appreciated part of this under-reporting!
As an example of how even “mainstream liberal progressive pundits” get it wrong by not focusing on the spectacular adverse effects of Garland’s botched handling of the Immigration Courts, check out this article by Mark Joseph Stern over at Slate. https://apple.news/AvmEJc5V0RXa8hCgKICcTOA
Overlooking Garland’s disastrous mis-handling of his “wholly owned” U.S. Immigration Courts and the unparalleled “missed opportunity” to put more brilliant progressive judges on the Federal Bench is an all too common “blind spot” for progressive pundits. Mark Joseph Stern Reporter, Slate
Stern does a “victory lap” over Biden’s 40 great Article III judicial appointments to the lower Federal Courts, closing with the astounding claim that: “Democrats are finally playing hardball with the courts.”
In truth, Dems are only belatedly starting to do what the GOP has been doing over four decades: Get your guys in the positions where they make a difference for better (Dems, in theory) or worse (GOP in practice).
Appointing a diverse, talented, progressive group of 40 out of 870 Article III Judges is an important, necessary, and long, long overdue start; but, it’s not going to make a cosmic difference overnight!
By contrast, there are about 550 Immigration Judges, the majority appointed by GOP restrictionist AGs, many with mediocre to totally inadequate credentials for the job. And, it shows in the consistently substandard performance and mistake-riddled, haphazard “jurisprudence” emanating from Garland’s EOIR.
The main qualifications for a number of these pedestrian to totally outrageous appointments appears to be willingness to carry out former GOP AGs’ restrictionist, nativist policies, or at least to adhere to the DOJ’s enforcement-oriented agenda, while ignoring, distinguishing, or downplaying the due process rights of migrants!
This is “complimented” by an appellate branch (the BIA) with about two dozen judges hand-selected or retained for notorious anti-immigrant records or willingness to “go along to get along” with the wishes of DHS Enforcement. The BIA turns out some truly horrible, almost invariably regressive, “precedents.” A number are so lacking in substance and coherent analysis that they are unceremoniously “stomped” by the Article IIIs despite limitations on judicial review and the travesty of so-called “Chevron deference” that serves as a grotesque example of Supremes-created “judicial task avoidance” by the Article IIIs.
From an informed Dem progressive perspective, it’s an infuriating, ongoing, unmitigated disaster! Only one BIA appellate judge, recently appointed “progressive practical scholar” Judge Andrea Saenz, would appear on any expert’s list of the “best and brightest” progressive legal minds in the field.
Unlike Article III Judges, who are life-tenured, EOIR Judges serve at the pleasure and discretion of the Attorney General and can be replaced and reassigned, including to non-quasi-judicial attorney positions, “at will.”
Starting with Attorney General John Ashcroft’s notorious “BIA Purge of ‘03,”GOP AGs haven’t hesitated to remove, transfer, “force out,” marginalize, demoralize, discourage from applying, or simply not select EOIR judges who stood for due process and immigrants’ rights in the face of nativist/restrictionist political agendas.
Yet, for eight years of the Obama Administration and now a year into the Biden Administration, Dem AGs have lacked the guts, awareness, and vision to fight back by “de-weaponizing” the regressive GOP-constructed Immigration Judiciary and recruiting replacements from among the “best and the brightest” among the “deep pool” of expert, intellectually fearless “progressive practical scholars.”
Not only that, but Dems have totally blown a unique opportunity to remake and establish the Immigration Judiciary not only as “America’s best judiciary” — a model for better Article IIIs — but also as a training ground for the diverse progressive judiciary of the future!
Even more significantly, tens of thousands of lives that should have been saved by an expert, due-process-oriented, racially sensitive judiciary have been, and continue to be, sacrificed on the alter of GOP nativism and Dem indifference to quality judging and human suffering in the Immigration Courts!
Compare the diverse, progressive backgrounds and qualifications of “Stern’s 40” with those on the totally underwhelming list of the most recent Garland “giveaways” of precious, life-determining Immigration Judge positions! See, e.g., https://www.justice.gov/eoir/page/file/1457171/download
The progressive talent is definitely out there to change the trajectory of the Immigration Courts for the better! Garland’s failure to inspire, recruit, appoint, and tout the “best and brightest” in American law for his Immigration Courts is a horrible “whiff” with disturbing national and international implications!
Article III Federal Courts deal with the mundane as well as the profound. By contrast, lives and futures are on the line in every single Immigration Court case! Often effective judicial review of EOIR’s haphazard, widely inconsistent, unprincipled, and one-sided decisions is unavailable, either as a legal or practical matter. The exceptionally poor performance of the Immigration Courts that continues under Garland threatens the underpinnings of our entire justice system and American democracy!
Right now, Garland’s broken system has a largely self-created 1.5+ million case ever-expanding backlog! At a very conservative estimate of four family members, co-workers, employees, employers, students, co-religionists, neighbors, and community members whose lives are intertwined with each of those stuck in Garland’s hopelessly broken, biased, and deficient system, at least 6 million American lives hang in the balance — twisting in the wind among Garland’s “backlog on steroids!” Yet, amazingly, it’s “below the radar screen” of Stern and other leading progressive voices!
I doubt that any Federal Court in America, with the possible exception of the Supremes, holds as many human lives and futures in its hands. Not to mention that “dehumanization” and “Dred Scottification” of the other in Immigration Court drifts over into the Article III Courts on a regular basis. Once you start viewing one group of humans as “less than persons” under the Constitution, it’s easy to add others to the “de-personification” process.
Yet, Garland cavalierly treats the Immigration Courts as just another mundane piece of his reeling bureaucratic mess at the DOJ. The long overdue and completely justified “housecleaning” at Trump’s anti-democracy insurrectionist regime seems far from Garland’s serenely detached mind!
For Pete’s sake, even ICE Special Agents understand the need to “rebrand” themselves by escaping the inept and disreputable ICE bureaucracy left over from Trump:
They say their affiliation with ICE’s immigration enforcement role is endangering their personal safety, stifling their partnerships with other agencies and scaring away crime victims, according to a copy of the report provided to The Washington Post.
But, Garland doesn’t understand the well-deserved toxic reputation of EOIR among legal experts? Gimme a break!
Garland also stands accountable for his spineless failure to insist on a dismantling of the bogus, illegal, immoral, and ultimately ineffectual Title 42 abomination at the Southern Border and an immediate return to the rule of law for asylum seekers.
Unless and until the Dems get serious about gutsy, radical progressive reforms of the Immigration Courts, the downward spiral of American justice will continue! Lives will be lost, and many of those who helped put Dems in power will be pissed off and “de-motivated” going into the midterms. That’s a really bad plan for Dems and for America’s future!
As Dems’ hopes of achieving meaningful Article III judicial reforms predictably are stymied, their inexcusable failure to reform and improve the Immigraton Courts that belong to them becomes a gargantuan, totally unnecessary “missed opportunity!” Talk about “unforced error!” See, e.g., https://www.washingtonpost.com/nation/2021/12/28/supreme-court-term-limits/
If Dems suffer an “enthusiasm gap” among their key progressive base going into the key 2022 midterms, they need look no further than Garland’s tone-deaf and inept failure to bring long overdue and readily achievable progressive personnel, procedural, management, and substantive reforms to his dysfunctional Immigration Courts. That — not a false sense of achievement — should have been the “headliner” for Stern and other progressive voices!
“Expedience over excellence, enforcement over equity, gimmicks over innovation is good enough for Government work!” — The “vision” for Garland’s EOIR! But, progressive experts aren’t buying his “tunnel vision.” PHOTO: Thomas Hawk Creative Commons Amateur Night
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19 & Closures
Note: Policies are rapidly changing, so please verify information with the government and colleagues.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, April 16, 2021 (The timing of postponement notices has been inconsistent and it is unclear when the next announcement will be. EOIR announced 4/16 on Fri. 3/5, 3/19 on Wed. 2/10, 2/19 on Mon. 1/25, 2/5 on Mon. 1/11, and 1/22 on Mon. 12/28). There is no announced date for reopening NYC non-detained at this time.
WaPo: The Biden administration is preparing to convert its immigrant family detention centers in South Texas into Ellis Island-style rapid-processing hubs that will screen migrant parents and children with a goal of releasing them into the United States within 72 hours, according to Department of Homeland Security draft plans obtained by The Washington Post.
WaPo: The Biden administration on Monday declared an estimated 320,000 Venezuelan migrants in the United States eligible for temporary protected status, a category of legal residence that would open a path to U.S. citizenship for them under the immigration bill President Biden sent to Congress last week.
BuzzFeed: The new program, which establishes the ICE Case Review Process led by a senior reviewing officer based in Washington, DC, is part of President Joe Biden’s efforts to overhaul the agency and reform not only how it works but which immigrants are arrested and detained.
NBC: The allegations were detailed in 13 complaints the ACLU filed against Customs and Border Protection, or CBP, during the Trump administration. The lawyers said in a letter that so far they have no indication that any action has been taken either to punish the officers or to reform the agency to prevent abuse and respond to such allegations.
Politico: The issue of what to do with Biden’s comprehensive immigration plan has bedeviled Speaker Nancy Pelosi and her leadership team, particularly after a disappointing whip count came back this week showing they don’t yet have the votes to pass the bill on the floor, according to people familiar with the talks.
CMS: The undocumented population continued to decline in 2019, falling by 215,000 compared to 2018; this population has declined by 1.4 million, or 12 percent, since 2010.
Reuters: The administration filled two-thirds of the immigration courts’ 520 lifetime positions with judges who, as a whole, have disproportionately ordered deportation, according to a Reuters analysis of more than 800,000 immigration cases decided over the past 20 years.
The Supreme Court affirmed the Eighth Circuit decision, and found that under the INA, certain nonpermanent individuals seeking to cancel a lawful removal order must prove that they have not been convicted of a disqualifying crime. (Pereida v. Wilkinson, 3/4/21) AILA Doc. No. 21030435
Law360: The U.S. Supreme Court dropped a trio of lawsuits concerning state and local cooperation with federal immigration authorities, winding down a yearslong battle during the Trump administration over so-called sanctuary cities.
The court held that determining whether a labor certification application (LCA) is approvable when filed requires a holistic inquiry, and found that the BIA had failed to keep its focus on that inquiry in the course of its evaluation of the petitioner’s LCA. (Oliveira v. Wilkinson, 2/22/21) AILA Doc. No. 21030336
Law360: The First Circuit denied a Rwandan woman’s habeas corpus petition on Wednesday, finding that a faulty jury instruction that had led to her criminal conviction would not have yielded a different outcome if corrected.
The court held that the petitioner’s negative view of gangs did not amount to a political opinion for asylum purposes, and that substantial evidence supported the BIA’s decision that he did not establish a likelihood of future torture in El Salvador. (Zelaya-Moreno v. Wilkinson, 2/26/21) AILA Doc. No. 21030834
The court found that the BIA correctly determined that the petitioner’s Pennsylvania conviction for strangulation was a particularly serious crime, and concluded that the agency’s adverse credibility finding was supported by substantial evidence. (Sunuwar v. Att’y Gen., 2/25/21) AILA Doc. No. 21030835
Where petitioner asserted that she and her husband had been subjected to death threats by a gang in Honduras, the court held that the BIA had improperly discounted her corroborating evidence, including affidavits, burial permits, and other documentation. (Arita-Deras v. Wilkinson, 3/4/21) AILA Doc. No. 21030837
The court upheld the BIA’s decision denying petitioner’s motion to reopen, finding she did not have a constitutionally protected interest in receiving a second try at a cancellation of removal proceeding because a grant of relief would be discretionary. (Baker White v. Wilkinson, 3/4/21) AILA Doc. No. 21030838
The court held that the petitioner’s conviction for importing, manufacturing, or dealing in firearms without a license was categorically an “illicit trafficking in firearms” aggravated felony under INA §101(a)(43)(C) that rendered him ineligible for asylum. (Chacon v. Wilkinson, 2/18/21) AILA Doc. No. 21030337
The court held that the BIA erred in finding that the petitioner did not qualify for an exception to the firm resettlement bar, and that the evidence compelled the conclusion that he had suffered past persecution in Somalia on account of a protected ground. (Aden v. Wilkinson, 3/4/21) AILA Doc. No. 21030844
Withdrawing its 8/13/20 opinion, the court granted the respondent’s unopposed motion to remand to the BIA for reconsideration of whether the petitioner’s California conviction for attempting to dissuade a witness constitutes a crime of moral turpitude. (Enriquez v. Wilkinson, 3/1/21) AILA Doc. No. 21030843
The court upheld the BIA’s finding that petitioner’s 1999 conviction for simple possession of cocaine in violation of California Health and Safety Code §11350 qualified as a “controlled substance offense” rendering him removable under INA §237(a)(2)(B)(i). (Lazo v. Wilkinson, 2/26/21) AILA Doc. No. 21030842
The court held that an amendment to §18.5 of the California Penal Code (CPC), which retroactively reduces the maximum misdemeanor sentence to 364 days, cannot be applied retroactively for purposes of removability under INA §237(a)(2)(A)(i). (Velasquez-Rios v. Barr, 10/28/20, amended 2/24/21) AILA Doc. No. 20110236
Granting in part the petition for review, the court concluded that substantial evidence did not support the BIA’s determination that petitioner was not persecuted on account of her membership in her proposed social groups—her family and property owners. (Naranjo Garcia v. Wilkinson, 2/18/21) AILA Doc. No. 21030335
The BIA ruled that a conviction for conspiracy to commit visa fraud in violation of 18 USC §§371 and 1546(a) is a conviction for a crime involving moral turpitude under the modified categorical approach. Matter of Nemis, 28 I&N Dec. 250 (BIA 2021) AILA Doc. No. 21030839
The court held that because the plaintiff had been paroled into the United States within the meaning of the INA based on her Temporary Protected Status (TPS), she was an “arriving alien,” and ordered USCIS to reopen her adjustment application and adjudicate it. (Michel v. Mayorkas, 3/2/21) AILA Doc. No. 21030833
Law360: A New York federal judge says he would consider ordering U.S. Immigration and Customs Enforcement to release vulnerable individuals from its Batavia detention center if that is the only way they can get access to the COVID-19 vaccine.
Law360: The U.S. Department of Justice won’t agree to hold off on enforcing an overhaul of the immigration court appeals process that was crafted in the last months of the Trump administration, and the D.C. federal judge overseeing a challenge to the new rule can’t see why.
ICE announced the creation of the ICE Case Review process for individuals who believe their case does not align with ICE’s enforcement, detention, and removal priorities. AILA Doc. No. 21030590
Elections truly do have consequences. The Biden administration in its early days has removed some high profile immigration cases from the Supreme Court docket, moving in a different direction than the Trump administration. NBC News reports (see also CNN and Bloomberg) that, yesterday, the Justice Department asked the Court to dismiss three lawsuits over the lawfulness of the Trump administration’s efforts to de-fund “sanctuary’ cities.
In brief letters to the Supreme Court, the Justice Department said the cases should be dismissed, indicating that the government will no longer seek to enforce that policy.
Lower courts were divided on the legality of the Trump de-funding policy. The Supreme Court had been deferring action on the appeals while the new administration decided how to handle the cases. The cases are Wilkinson v. San Francisco, 20-666; New York v. Department of Justice, 20-795; and City of New York v. Department of Justice, 20-796.
KJ
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Thanks for the nice summary and links, Kevin!
The Trump regime waged a four-year unsuccessful war against American local governments who were seeking to protect their ethnic communities from ICE abuses and to encourage community cooperation with police in addressing violent crime in those communities. How did they go about it: By threatening to cut off certain Federal funding for local law enforcement.
If it sounds stupid and wasteful, that’s because it was. It also helped make ICE probably “the most despised law enforcement agency in America.” Again, not an effective strategy for real cooperative law enforcement.
But, despite all his bluster and false claims, Trump never, ever was about “law enforcement.” That was clear even before he sent his “magamorons” out to attack our Capitol. No, it always was about stoking fear, hate, and throwing “red meat” to his base for political purposes.
A recent report from the Urban Institute found that more than 1 in 6 adults in immigrant families reported avoiding a government benefit program or other help with basic needs last year because of immigration concerns. This chilling effect was so persistent that households where every foreign-born member had already been naturalized said they’re avoiding benefits. Just to be safe.
Despite an ongoing national crisis with record levels of illness, financial stress and hunger.
“More than once, pediatricians have told us they’ve had children come in so sick and so malnourished that [Child Protective Services] had been called on these families,” said Cheasty Anderson, director of immigration policy and advocacy at Children’s Defense Fund-Texas. Struggling parents believe they’re “on the horns of this dilemma,” she said. They think they must choose between accepting food and medical assistance for their children — or face possible deportation, and thus separation from their children.
That’s what the Trump administration has conditioned them to believe.
Given trends so far — particularly those declines in childhood immunizations — advocates worry that the “public charge” rule might discourage immigrants from getting themselves or their children vaccinated against covid-19. Which would affect the well-being of not just these immigrant families, of course, but their surrounding communities as well. Some advocates have expressed frustration that the Biden administration hasn’t immediately rescinded the rule. Formal repeal is likely a ways off, assuming the administration goes through the usual (cumbersome, protracted) rulemaking process.
But even if the order that Biden signed this week was really more about marketing than action, that pro-immigrant P.R. is valuable. After all, “most of the original damage was done by messaging,” as the Center for Law and Social Policy’s executive director, Olivia Golden, told me. It can, and should, be undone by the same means.
If we want immigrant families to stay healthy — and keep their nonimmigrant neighbors healthy, too — the government needs to put better policies on the books. But it needs to rebuild immigrants’ trust in those policies, too. That part may ultimately be harder.
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Read Catherine’s full op-ed at the link.
Using government resources to undermine public confidence in government. Could it get any stupider and more evil?
But, let’s not forget that the bureaucratic kakistocracy at DHS, DOJ, and other agencies happily carried out and promoted the Trump/Miller bogus, racist, anti-immigrant narratives. That’s going to make it challenging for Secretary Mayorkas and incoming AG Garland to change the policies, change the messaging (if you want to see how brutally corrupt and manipulative the DHS “PR Kakistocracy” was, check out the highly acclaimed documentary “Immigration Nation”), and change the attitudes and the reality at the “retail level” — the DHS field offices and the Immigration Courts.
But it’s a challenge they must meet and conquer — for the sake of our nation.
Also, it’s worth remembering that the Supremes’ GOP majority dishonestly bent the rules to interfere with lower Federal Court rulings that had properly blocked this invidious, White nationalist, nativist attack on American communities — targeting communities of color and low-income communities. Just another example of how the Supremes’ elitist right wing majority operates outside reality (the factual record of comments from experts opposing this bogus “rule” was simply overwhelming and basically ignored by the Trump regime and the Supremes’ majority) and without regard or understanding of the human and public policy consequences of their skewed “Dred Scottifying” rulings. They are also above accountability, which makes their abuse of the most vulnerable among us even more disgusting and cowardly.
I think it’s highly unlikely that we’d see the same tone deaf misapplication of the law if it were the Justices’ kids, grandkids, neighbors, and friends unnecessarily suffering from illness and malnutrition aggravated by racist government policies. No more Justices and Federal Judges who have spent their adult lives studiously ignoring the rights and problems of those struggling to get by in a society where the rules are designed to protect the White ruling class rather than all persons living here.
It’s very clear that for GOP Justices, most of the time, only some lives and rights matter and are worth protecting. The rest of humanity can “go pound sand” as far as they are concerned.
For Pete’s sake, guns and corporate entities get more protection from the Roberts’ Court than do asylum seekers whose lives are at stake! As Justice Sotomayor says: “This is not justice.” The question remains of why we have Supremes who all too often promote injustice and fail to resist evil?
Kids are among the many groups of refugees and asylum seekers ill-served by the Biden Administration’s policies and performance. “World Refugee Day 2023” is a rather grim reminder of America’s failure to live up to its obligations to the world’s most vulnerable!
