"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.
Here’s The Link:
Among other things, a reprint of my tribute to the late Hon. Juan Osuna is on p. 5. And, check out the picture from the Denver Conference on p. 6! Hope everyone will join us for the May 2018 Immigraton Section Conference in Memphis, TN. It will be spectacular!
Also congrats and best wishes to my good friend (and former Arlington Immigraton Court JLC) Betty Stevens on her election as Section Chair. We all look forward to working with you, Betty!
PWS
09-21-17
“Matter of L-, 1 I&N Dec. 1 (BIA 1940), was issued on August 29, 1940, the day before the Board of Immigration Appeals came into existence.2 Some background about the Board’s early history is required to explain this. From 1922 until 1940, a five-member Board of Review existed within the Department of Labor to review all immigration cases. The Board of Review had no decision- making authority of its own; it could only recommend action to the Secretary of Labor. In 1933, the Immigration and Naturalization Service (INS) was formed within the Department of Labor,3 and from 1933 until 1939 the Board of Review made its recommendations to the Commissioner of Immigration and Naturalization.4″
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http://www.fedbar.org/Image-Library/Sections-and-Divisions/Immigration/Green-Card-Fall-2016-.aspx
In INS v. Cardoza-Fonseca, its landmark 1987 decision establishing that the burden of proving a “well-founded fear of persecution” is significantly less than fifty percent, the Supreme Court relied on the following scholarly example: “Let us…presume that it is known that in applicant’s country of origin every tenth adult male person is either put to death or sent to some remote labor camp… In such a case it would be only too apparent that anyone who managed to escape from the country would have ‘well-founded fear of being persecuted’ on his eventual return.”2 While the Court’s decision predates the “pattern or practice” regulation by more than three years, the example it relies on (which predates the regulation by 24 years) presents a classic “pattern or practice” scenario. The hypotheti- cal establishes (1) a group, i.e., all adult males in a particular country; and (2) information establishing systemic persecution of one in ten members of such group. all members of the group therefore have a well-founded without the need to explain their individual circumstances.”
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“Racism was codified in this country’s original natu- ralization law. The Naturalization Act of 1790 limited the right to naturalize to “free white persons.” Following the Civil War, the Act of July 14, 1870, added “aliens of African nativity” and “aliens of African descent” to those eligible to naturalize. However, all others considered “non-white” continued to be barred from obtaining United States citizenship. In 1922, the Supreme Court denied Takao Ozawa, a Japanese immigrant who had lived in the U.S. for 20 years, the right to become a naturalized citizen because he “clearly” was “not Caucasian.” In interpreting the term “free white persons,” the Court found that “the framers did not have in mind the brown or yellow races of Asia.”1 In United States v. Bhagat Singh Thind,2 the Supreme Court reached the same conclusion regarding an “upper-caste Hindu” who claimed a lineage classi ed as “Aryan” or “Caucasian.” The Court determined that “Aryan” related to “linguistic, and not at all with physical, characteristics,” and concluded that the term “free white persons” as understood by the common man, would not include those of Hindu ancestry.3 It was not until passage of the McCarran-Walter Act in 1952 that the naturalization law was amended to read that “[t]he right of a person to become a naturalized citizen shall not be denied or abridged because of race or sex…”4
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Read all three of Judge Chase’s outstanding histories and get some “instant perspective” on how we got to where we are today as a nation of immigrants. There was no shortage of hypocracy. And, I submit that in the course of history some of today’s politicians advocating restrictive racially and religiously charged immigration policies are going to look just as distasteful, arrogant, prejudiced, and ignorant as some of the judges, lawmakers, and government officials described in these articles.
PWS
06-19-17
UPDATE
Judge Chase has reminded me that there is a fourth part to this collection:
http://www.fedbar.org/Image-Library/Sections-and-Divisions/Immigration/Green-Card-Summer-2016.aspx
“U.S. asylum policy is a product of the tension between the public sentiments of compassion and fear. In the words of a former Deputy UN High Commissioner: “The public will not allow governments to be generous if it believes they have lost control.” 1 Although asylum can be traced back at least to the Old Testament, for all practical purposes, U.S. asylum policy began on the eve of World War II.”
PWS
06-21-17
Here are some excerpts:
“Our Immigration Courts are going through an existential crisis that threatens the very foundations of our American Justice System. I have often spoken about my dismay that the noble due process vision of our Immigration Courts has been derailed. What can be done to get it back on track?
First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers, which are highly ineffective in any event, must end. That’s unlikely to happen under the DOJ—as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the ABA and the FBA, would be best.
Clearly, the due process focus has been lost when officials outside EOIR have forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases is not only unfair to all, but has created what I call “aimless docket reshuffling” that has thrown our system into chaos.
Evidently, the idea of the prioritization was to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we don’t want you” message to asylum seekers. But, as a deterrent, this program has been spectacularly unsuccessful. Not surprisingly to me, individuals fleeing for their lives from the Northern Triangle have continued to seek refuge in the United States in large numbers. Immigration Court backlogs have continued to grow across the board, notwithstanding an actual reduction in overall case receipts and an increase in the number of authorized Immigration Judges.”
Another one:
Former BIA Chairman Paul W. Schmidt on His Career, the Board, and the Purge
“Paul Wickham Schmidt served as Chairman of the Board of Immigration Appeals (BIA) from 1995 to 2001. He was a Board Member of the BIA from 2001 to 2003, and served as an Immigration Judge in Arlington, Virginia from 2003 until his retirement earlier this year. He also worked in private practice and held other senior positions in government, including Deputy General Counsel and Acting General Counsel at INS. The Asylumist caught up with Judge Schmidt in Maine, where he has been enjoying his retirement, and talked to him about his career, the BIA, and the “purge” of 2003.”
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Read the complete articles plus lots of other “great stuff” both practical and more philosophical at the above link.
And, for all of you “aspiring writers” out there, Green Card Editor and my good friend and former colleague from the U.S. Immigration Court In Arlington, VA, Hon. Lawrence Owen “Larry” Burman, and the Publications Director, Dr. Alicia Triche, are always looking for “new talent” and interesting articles. Instructions on how to submit manuscripts are on page one.
PWS
02/01/17