"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.
On Friday, the New York Times reported that former Virginia attorney general Kenneth Cuccinelli will be tapped for a role in the Trump administration. He will be put in charge of the country’s legal immigration system, as head of U.S. Citizenship and Immigration Services (USCIS). While it had been earlier rumored that Cuccinelli would be placed in a new job as “immigration czar,” both the Times and the Washington Post noted that he now seems set for the top spot at USCIS.
No matter what job Cuccinelli ends up in, he is neither deserving nor qualified to play any role in shaping immigration policy. He is an immigration hardliner with views that are at odds with American values. He has a history of xenophobic, homophobic, and sexist comments. Ironically, one nice thing that can be said about Cuccinelli is that he fosters bipartisanship — he has generated opposition from both sides of the aisle.
Most importantly, Cuccinelli has no significant experience in immigration policy, notwithstanding his failed attempt to end birthright citizenship as a state senator. He is not from a border state, nor has he been a credible voice in the immigration debate. His background is in law enforcement, not immigration law.
Cuccinelli’s prime qualification for his new job seems to be that he has been a tireless defender of the president on cable news. That could almost be seen as laughable if the stakes were not so high. Consider that as head of USCIS, Cuccinelli would wield tremendous power over immigrants like refugees, domestic abuse victims, and asylum-seekers. Or that our legal immigration system is byzantine and complicated, attracting the largest number of immigrants in the world. In FY 2017, the U.S. granted Legal Permanent Resident status to about 1.1 million people, including 120,000 refugees and 25,000 asylum-seekers.
Cuccinelli’s anti-LGBTQ record is especially troubling. As attorney general, he was against policies banning discrimination on the basis of sexual orientation in public colleges and universities. As a state senator, he unsuccessfully fought to criminalize sodomy, calling “homosexual acts… intrinsically wrong.” In 2008, he declared that homosexuality “brings nothing but self-destruction, not only physically but of their soul.” The extreme views matter because LGBTQ people are among our most vulnerable immigrants. The Human Rights Campaign, for example, has documented “the precarious position of transgender immigrants and asylum seekers.” Sadly, it seems unlikely that Cuccinelli would respect their human rights, let alone treat LGBTQ immigrants with kindness and compassion.
There are myriad ways in which Cuccinelli has demonstrated that he is far out of the mainstream, so much so that handing him a huge job would be dangerous. The man who worried about getting his newborn son a social security number because he was concerned about the government tracking his family is probably not the ideal person to put in charge of E-Verify, the federal database that checks employment eligibility.
True, the president can choose whomever he likes for high-level positions. But Cuccinelli isn’t even a smart political pick. In addition to being unpopular with Democrats, he doesn’t have the full support of Republican lawmakers either. According to the website Vox, Sen. Mitch McConnell (R-Ky.) does not want to confirm Cuccinelli (the ill will stems from the fact that Cuccinelli headed up a political action committee that supported primary challenges to incumbent Republicans in 2014). Besides, on immigration most Americans are moving away from Trump. This January, the Pew Center found that 62 percent of Americans believe that immigrants strengthen our country. A restrictionist like Cuccinelli is not what the public wants or needs.
As head of USCIS, Cuccinelli would bring little to the job except a track record as a Trump loyalist. With his outdated and narrow views, he would be a disaster overseeing our legal immigration system.
Raul A. Reyes is an immigration attorney and member of the USA Today Board of Contributors. A graduate of Harvard University and Columbia Law School, he is also a contributor to NBCNews.com and CNN Opinion. You can follow him on Twitter at @RaulAReyes, Instagram: raulareyes1.
Let’s remember that fired hardliner L. Francis Cissna was the man who “took the ‘Services’ out of US Citizenship and Immigration Services.” His dismal anti-immigrant polices and undermining of public service have brought unprecedented backlogs to USCIS adjudications that are now under Congressional investigation. He also reportedly “tanked” employee morale at USCIS. Nevertheless, he wasn’t quite nasty enough for Trump and his neo-Nazi White Nationalist advisor Stephen MIller.
As a Virginia resident who suffered through “Cooch Cooch’s” disastrous tenure as Attorney General and his thankfully unsuccessful bid to become our Governor, I can testify that he is indeed without any redeeming social values. In other words, a perfect fit for the “Trump Immigration Kakistocracy.” But, “Cooch Cooch” has some powerful enemies in the GOP Senate. He pissed off Senate Majority Leader Mitch McConnell, and powerful Senator Chuck Grassley (R-IA) can’t be too pleased with Trump’s treatment of his former staffer Cissna.
In the meantime, it’s “chaos as usual” in the DHS/USCIS kakistocracy.
Annie Karni and Ana Swanson report for the NY Times:
WASHINGTON — President Trump said Thursday that he planned to impose a 5 percent tariff on all imported goods from Mexico beginning June 10, a tax that he said would “gradually increase” until Mexico stopped the flow of undocumented immigrants across the border.
The announcement, which Mr. Trump hinted at on Thursday morning and announced on his Twitter feed, said the tariffs would be in place “until such time as illegal migrants coming through Mexico, and into our Country, STOP.”
In a presidential statement that followed, he said that tariffs would be raised to 10 percent on July 1 “if the crisis persists,” and then by an additional 5 percent each month for three months.
Wow! Just think of how far we have fallen as a nation. Let’s imagine that Obama, Bush, or Clinton proposed such idiotic, incoherent, nonsense, blatantly exhibiting something between total derangement and gross incompetence.
Journalists would be stunned, economists horrified. Politicians of both parties would be “talking 25th Amendment!”
Yet with Trump, it’s merely “ho hum, another day in nut-land” with only our country’s and the world’s future at stake. After all, he’s always threatening to take utterly insane, totally illegal actions. And, he only follows through about half the time.
Can we really survive this type of Clown Kakistocracy? Why won’t Mexico, China, Canada, India, and the EU just get together, negotiate some sound trade agreements based on real economics and sane diplomacy, and let the U.S. wander off into never-never land?
Yeah, I know, the economy continues to blaze away, markets are high, and unemployment low. But, remember the little warning line at the bottom of the prospectus of your most successful financial investment: Past results are not a prediction of future returns.
Well, there is some good news. At least there won’t be any suspense on who gets the “Courtside Five Clown Award” for this week. Who else but the Chief Clown! He’s earned it, and you can’t say that about much else in his tawdry life.
One of the earliest stories I heard as a child was that my immigrant great-great-grandfather worked out West on the first transcontinental railroad. Yuan Son, along with tens of thousands of other Chinese workers, blasted tunnels, carved footholds and laid grade at death-defying heights through the most arduous parts of the Sierra Nevada, miraculously making it out alive. I envisioned him tough and swashbuckling — a cross between my tall, bartender grandfather, who often told me these stories while smoking a Marlboro in our home in Queens, and Yosemite Sam.
My great-great-grandfather and his fellow laborers toiled around the clock in rotating shifts, handling explosive nitroglycerine, blasting through miles of granite, hauling tons of rock and dirt, even in upwards of 30 feet of snow. They endured brutal working conditions we would consider unconscionable today to complete the most difficult sections through the Sierra Nevada — the same terrain that stopped the ill-fated Donner Party in its tracks — and finally out to Nevada and Utah’s blistering desert heat. They were paid less and worked longer hours than their Irish or American counterparts, and they had to provide their own food and accommodations. Although some claimed it could never be done, Yuan Son and other Chinese workers completed the task in record time.
It wasn’t until, as an adult, I traveled to Promontory Summit, Utah, and saw the site of the railroad’s completion with my own eyes that I realized the true weight of this legacy. The railroad is a complicated affair for Chinese American descendants like me: The greatest U.S. engineering feat of the 19th century may have physically unified the country when it was finished in 1869, but this new network of rail also brought scores of white workers to the West, many of whom grew resentful when they saw Chinese holding down jobs they considered rightfully theirs. Not 15 years after the completion of the railroad, this ire, coupled with a severe economic depression, helped usher in the Chinese Exclusion Act — the country’s first major federal law that limited immigration based on race, class and nationality — setting the tone for future wide-reaching restrictive immigration policies.
My great-great grandfather was a teenager when he arrived in California, a mere boy, one of upwards of 20,000 Chinese, mainly from the Pearl River Delta area (in Guangdong province), who made up the majority of the Central Pacific Railroad workforce. He, like most of the others, was raised in a poor farming family, in a country that had been hammered by drought, famine, Western colonialism, warlordism and one of the bloodiest civil wars of the 19th century — conditions that would look familiar to many refugees and migrants today. So when the opportunity arose to feed his family by working for a railroad an ocean away, he took it.
As a schoolgirl, I scanned the official photograph that came to symbolize the railroad’s completion — engineers shaking hands, flocks of laborers posing for the camera, the champagne toast, a carefully choreographed scene — more than 100 years later, searching for faces like my great-great-grandfather’s. Only white faces stared back. Chinese workers were written out of this triumphant American story.
Their contributions were already being erased when Chinese Exclusion was enacted, and soon followed by a tsunami of anti-Chinese violence that swept across much of the West — lynchings, expulsions, boycotts of Chinese businesses, politicians jumping on the bandwagon. Nativism was as popular and potent then as it is today. Yuan Son, now an entrepreneurial shop owner, had happily settled in Idaho, where, after the railroad’s completion, Chinese made up close to 30 percent of the population. Although he had been living in the country for almost 30 years, one day he was forced out of his home at gunpoint by a band of masked vigilantes.
Despite these hardships, Yuan Son resettled back into life in China and surprisingly spoke of the work he had done on the railroad with great pride. He even taught my grandfather his first words in English: “Central Pacific,” “Southern Pacific” and “Union Pacific.” My chain-smoking grandfather repeated these names back to me through his ringing Cantonese intonations, in our home half a world away, as if he were a conductor calling out stations.
As the Trump administration attempts to rally support for ever more stringent immigration policies, I can’t help reflecting on railroad pioneers like Yuan Son. These men risked their lives hammering and detonating gunpowder, surviving avalanches and extreme conditions — engaging in the kind of backbreaking, chisel-to-granite “bone-work” that others refused to do. I am confronted by this complicated history, even as some wave patriotic flags amid cries to “make America great again.” One hundred and fifty years ago, my grandfather’s grandfather did help make this nation great, along with scores of his countrymen. It didn’t stop him from getting booted out, decades later, simply for being Chinese.
Like it or not, supporting Trump means “buying in” to his noxiously false “Whitebread” vision of America’s past and future. It is also to disingenuously decline to recognize our true immigrant heritage and the overwhelming contributions of immigrants of color, enslaved Americans, immigrant women, and native Americans in making America great.
Sadly, the Chinese weren’t the only ones “airbrushed out” of the triumphant picture of the Transcontinental Railroad’s completion. Blacks, women, and Native Americans also made major contributions while suffering disproportionately; yet, they also received little or no appreciation or recognition.
Here’s a “differently take” on the ‘golden spike ceremony.:”
ICIJ: ICE’s own directives say that isolating detainees — who under federal law aren’t considered prisoners and aren’t held for punitive reasons — is “a serious step that requires careful consideration of alternatives.” An investigation by The Intercept and the International Consortium of Investigative Journalists has found that ICE uses isolation as a go-to tool, rather than a last resort, to manage and punish even the most vulnerable detainees for weeks and months at a time.
WaPo: President Trump plans to install Ken Cuccinelli II as the new director of U.S. Citizenship and Immigration Services, placing the conservative activist and former Virginia attorney general at the head of the agency that runs the country’s legal immigration system, administration officials said Friday. L. Francis Cissna, the agency’s current director, has told his staff that he will leave his post June 1. The move extends the purge of senior leadership at the Department of Homeland Security, replacing Cissna, a Senate-confirmed agency head with deep expertise on immigration law, with Cuccinelli, a conservative firebrand disliked by senior GOP figures, including Senate Majority Leader Mitch McConnell (R-Ky.).
WNYC: An undocumented immigrant from Brooklyn was deported to his home country in the Caribbean on Wednesday without advance notice, despite serious cardiovascular issues that led him to fall ill on the flight and could soon lead to death without adequate care, according to his attorneys and a cardiologist who reviewed his case.
AP: A 16-year-old Guatemala migrant who died Monday in U.S. custody had been held by immigration authorities for six days — twice as long as federal law generally permits — then transferred him to another holding facility even after he was diagnosed with the flu.
AP: President Andrés Manuel López Obrador has insisted that his main strategy to deal with migration is to improve conditions in migrants’ countries of origin so they don’t feel compelled to leave. However, detentions and deportations in Mexico are up 150% so far this year. Mexico’s efforts did not appear to immediately appease President Donald Trump, who unleashed a broadside on Twitter on Tuesday. Trump wrote that he was “very disappointed that Mexico is doing virtually nothing to stop illegal immigrants from coming to our Southern Border” and added that “Mexico is wrong and I will soon be giving a response!”
Buzzfeed: As of Monday, ICE was holding 52,398 migrants, of which 998 are family units, an agency official told BuzzFeed News. The number represents a significant population spike from just two weeks ago when ICE was holding more than 49,000 migrants.
CNN: Allen and McPherson say they documented their concerns numerous times in reports filed with the Department of Homeland Security during the Obama administration, and felt like the people in power were listening. But they say two things prompted them to speak more publicly about the matter after Trump took office: the spike in family separations at the border and moves to increase family detention rather than scale it back.
Buzzfeed: The claim, which is typically a precursor to a lawsuit, is for personal injury and wrongful death and accuses the federal government of battery, negligence, and reckless conduct in the Border Patrol shooting of Claudia Patricia Gómez González, an indigenous Mayan woman.
AIC: The deaths show that before giving huge new sums to increase detention capability, the agency must face significant oversight and accountability towards the deplorable conditions it holds migrants in.
Pursuant to section 240(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(B) (2012), neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien who was served with a notice to appear that did not specify the time and place of the initial removal hearing failed to provide an address where a notice of hearing could be sent. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
Neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien did not appear at a scheduled hearing after being served with a notice to appear that did not specify the time and place of the initial removal hearing, so long as a subsequent notice of hearing specifying that information was properly sent to the alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
USCIS correction to the notice published at 84 FR 20647 on 5/10/19 on continuation of documentation for beneficiaries of Temporary Protected Status from Nepal and Honduras. The notice corrects the CIS Number, the DHS Docket Number, and the RIN. (84 FR 23578, 5/22/19) AILA Doc. No. 19052231
USCIS: As a first step, certain visitors for business, visitors for pleasure, and vocational students can now apply online to extend their stay in the United States. Additional classifications are coming soon.
Matter of Michael Vernon THOMAS, Respondent
Matter of Joseph Lloyd THOMPSON, Respondent
Decided by Attorney General May 28, 2019
U.S. Department of Justice
Office of the Attorney General
BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration
Appeals (“Board”) to refer these cases to me for review of its decisions. The
Board’s decisions in these matters are automatically stayed pending my
review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001).
To assist me, I invite the parties to these proceedings and interested amici to
submit briefs that address whether, and under what circumstances, judicial
alteration of a criminal conviction or sentence—whether labeled “vacatur,”
“modification,” “clarification,” or some other term—should be taken into
consideration in determining the immigration consequences of the
The parties’ briefs shall not exceed 15,000 words and shall be filed on or before June 28, 2019. Interested amici may submit briefs not exceeding
9,000 words on or before July 12, 2019. The parties may submit reply briefs
not exceeding 6,000 words on or before July 12, 2019. All filings shall be
accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to:
United States Department of Justice
Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530
All briefs must be both submitted electronically and postmarked on or
before the pertinent deadlines. Requests for extensions are disfavored.
Like Barr’s entire tenure and continued interference with Due Process and judicial independence in the Immigration Courts, it’s highly unethical.
Nobody outside the White Nationalist restrictionist enclave would have any interest in revisiting the BIA’s reasonable rulings, going back more than a decade and one-half, recognizing sentence modifications entered by judges in criminal cases, mostly in state courts. Matter of Song, 23 I&N Dec. 173 (BIA 2001) and Matter of Cota Vargas, 23 I&N Dec. 843 (BIA 2005).
Indeed, this action does not appear to have have been generated by any actual party participating in Immigration Court litigation or by any pending Circuit Court litigation. It has nothing to do with the current “border crisis” that has paralyzed this Administration’s immigration bureaucracy.
Rather, it appears to be part of a concerted politically-based attack on migrants and the independence of the Immigration Court system orchestrated by restrictionist groups outside of government who use unscrupulous and willing senior officials like Barr, and Sessions before him, as operatives.
After ignoring all of the compelling arguments favoring the current precedents, Barr will basically “adopt” or “adapt” Judge Roger Pauley’s dissenting opinion in Matter of Cota. The decision likely has already been drafted along the lines of the restrictionist groups’ agenda for stripping migrants of the few rights they still retain in what was already a bogus “court” system where the law had intentionally been skewed against them and in favor of DHS for political reasons.
The only question is whether the Article III Courts will continue to put up with Barr’s “charade of justice at Justice.” We’ll see. But, at some point, the damage to our system being inflicted by dishonest and unethical officials like Barr might become irreparable.
Doris M. Meissner, Senior Fellow, Migration Policy Institute
Kristie De Pena, Director of Immigration, Niskanen Center
Michael Clemons, Senior Fellow, Center for Global Development
Noah Lanard, Reporter, Mother Jones
Noah Lanard reports in Mother Jones:
In April 2018, the Department of Homeland Security began using a new word to describe the situation at the southern border: crisis. The number of parents and children crossing the border to seek protection under US asylum laws was climbing to nearly 10,000 per month, up from barely a thousand at the start of the Trump administration. Trump did everything in his power to stop families from coming. He deployed the military to the border, separated parents from children, turned away asylum seekers at official border crossings, and then tried to make it illegal to request asylum unless people went to those crossings.
Nothing worked. More than 58,000 parents and children traveling togethercrossed the border last month, the seventh record-high in eight months. DHS officials have upped their hyperbolic rhetoric, saying that the immigration system is “on fire” and in “meltdown.”
At first, Democrats dismissed Trump’s fearmongering on immigration by pointing out that the total number of border crossers was still near historic lows. But as the number of parents and children coming to the border continues to skyrocket and the backlog of asylum seekers awaiting court hearings swells, it’s becoming clear to people across the political spectrum that doing nothing is not an option. Solutions are needed—the question is, what do they look like?
Mother Jones interviewed a half-dozen immigration experts from the left and center to see how they would create a fairer, more efficient, more humanitarian system for asylum seekers. Here’s what they recommend.
1. Hire more immigration judges
A backlog of nearly 900,000 asylum cases means that families seeking asylum often spend years living in the United States before their cases are decided by immigration judges. Most asylum seekers from El Salvador, Guatemala, and Honduras have not won their cases in recent years, and it’s even harder now that the Trump administration has limited protections for victims of gang and domestic violence, the most common forms of persecution in these “Northern Triangle” countries. Many of those who receive deportation orders, either because they lost their case or they did not apply for asylum after being released at the border, remain in the country as undocumented immigrants.
The backlog, combined with ICE’s limited ability to find people who don’t comply with removal orders, creates the accurate perception among migrants that families who turn themselves in to border agents are highly unlikely to be quickly deported. That presents an incentive for families unlikely to win asylum to cross the border anyway. More than 260,000 parents and children crossed the southern border between the 2016 and 2018 fiscal years. ICE deported about 7,000 family members during that period.
Trump has increased the number of immigration judges from 289 in 2016 to 435. But the backlog has been increasing by more than 100,000 cases per year,faster than under Barack Obama. That’s partly because of the surge in asylum claims but also because indiscriminate immigration enforcement has led to a dramatic increase in arrests of immigrants without criminal histories and forced judges to reopen cases they had set aside. The president is asking to fund 100 new judges in his 2020 budget, while Democrats have called for hiring at least 300 judges over four years.
Those numbers of hires would barely put a dent in the backlog in the short term. That’s why some experts think the administration should bring entire new classes of judges into the fold. Paul Schmidt, who served as an immigration judge from 2003 to 2016, suggests training retired state judges to handle bond and scheduling hearings so that judges have more time to handle asylum decisions. Kristie De Peña, director of immigration at the center-right Niskanen Center, proposes appointing emergency judges to decide asylum cases, and says that to assuage concerns about the Trump administration’s hiring, these judges could be selected by groups such as the American Bar Association and signed off on by governors.
2. Process asylum claims more efficiently
While serving as Bill Clinton’s top immigration official in the 1990s, Doris Meissner eliminated a similar asylum backlog with a series of technical fixes. Previously, asylum seekers were eligible for work permits immediately, even if their cases wouldn’t be resolved for years, giving people with weak asylum cases an incentive to come to the United States and start working. To remove that incentive, Meissner imposed a six-month waiting period before asylum seekers were eligible for work permits and made sure that nearly all cases were decided within six months. The number of new asylum applications fell by more than half within a year, and the share of claims that were approved eventually more than doubled.
Meissner, now a senior fellow at the Migration Policy Institute, proposes another change that could have a huge impact on the backlog: letting asylum officers, not immigration judges, make the initial decisions in asylum cases.
Those officers already decide many asylum cases—for people who weren’t stopped at the border—and conduct all the “credible fear” interviews that determine whether asylum seekers have a strong enough case to go before an immigration judge. If officers took the place of immigration judges in asylum cases, migrants arriving at the border with strong claims would have their asylum approved more quickly, allowing them to bring their families to the United States rather than waiting years for a hearing before being allowed to bring relatives. Those with weaker claims, sensing that they’d be denied quickly and deported, might skip the trip and avoid taking on massive debts in a futile attempt to win asylum.
Another solution that could spare asylum seekers a long and uncertain trip to the United States and cut down on the backlog would be letting Central Americans apply for refugee status from their home countries. The Obama administration started a program along these lines, but the Trump administration quickly ended it. Democrats are calling for bringing back an expanded version so people have an alternative to traveling to the border.
Schmidt also thinks attorneys should be provided to asylum seekers so they’re informed of their legal rights and cases run more smoothly. The problem for the Trump administration, he says, is that fairer hearings would likely lead to more people winning their cases. Instead of running an effective asylum system, the Trump administration practices what Schmidt calls “malicious incompetence,” a noxious mix of bureaucratic dysfunction and intentional undermining of legal protections for asylum seekers. “If you had a competent administration willing to put the money in the right places,” he says, “you could solve this problem, and it wouldn’t cost as much as all the stuff they’re doing now.”
3. Consider alternatives to family detention
There’s no issue where the government and immigrant advocates differ more sharply than immigrant detention. The vast majority of families are quickly released at the border because of detention capacity constraints and the Trump administration’s recognition that short-term detention doesn’t do much to deter immigration. Under both Obama and Trump, DHS has sought to detain families for longer than the current legal limit of about 20 days and quickly deport them if they lose their cases.
Indefinite family detention is a nonstarter for immigrant advocates, who point to the government’s abysmal track record on immigration detention, the traumatic impact detention can have on children, and the challenges of fighting cases from behind bars. Immigrant advocates and Democrats in Congress oppose all family detention, preferring to release immigrants and track them with ankle monitors and check-ins with case workers.
De Peña is trying to find a middle ground. She proposes a solution that would avoid prolonged detention and the quick releasing of families at the border,while taking advantage of a move Trump already made. Trump has cut refugee admissions to record lows, forcing resettlement agencies to close offices and lay people off. De Peña wants to bring some work back to these agencies by having the government contract with them to house families seeking asylum. Under her plan, the families would be located in proximity to one another and have access to schools, medical facilities, and lawyers. They could move about freely, though they’d be monitored with ankle bracelets, as they often are now. That way, families seeking asylum wouldn’t be locked up like criminals, but they would also be less likely to disappear into undocumented life in American cities.
4. Send foreign aid—but don’t rely on it
Almost everyone in both parties supports sending foreign aid to Central America.Senate Democrats’ border plan, which was first introduced in October, provides $3 billion in aid to address the “root causes” of migration from the Northern Triangle, specifically poverty and violence. The outlier is Trump, who is moving to cut off aid to Central America despite his own acting DHS secretary’s support for that assistance.
But that foreign aid is not likely to be a quick fix. Michael Clemens, a senior fellow at the Center for Global Development, and researcher Hannah Postel concluded in a 2018 article that the chance of deterring migration through development assistance is “weak at best.” To greatly impact migration, theyfound, aid would have to work in “unprecedented ways” over multiple generations. There is some evidence that security assistance for neighborhood-level programs such as community policing can reduce migration, but economic aid could actually have the opposite effect, boosting migration from the poorest areas of the Northern Triangle by giving people the resources needed to reach the border. Clemens considers Trump’s decision to cut off aid “vacuous and nihilistic,” but he believes foreign aid mostly gets as much attention as it does because it’s a “political winner”—not an actual short- or medium-term solution to the migration challenge.
5. Open up economic visas
People are leaving the Northern Triangle to escape intense gang violence, find jobs, or reunite with relatives—often all three. The problem is that economic and family concerns aren’t valid grounds for asylum, but asylum is essentially the only way for most Central Americans to come to the United States legally. (The State Department rejects nearly all tourist visa applications from low-income Central Americans, worried that they’ll overstay their visas.) But asylum doesn’t have to be the only path into the United States.
Last year, the Department of Labor approved nearly 400,000 guest workers recruited by US employers to work in agriculture and other seasonal industries. The vast majority of the temporary work visas have gone to Mexicans, many of whom have longstanding relationships with specific employers. The United States could easily require or encourage employers to hire more Central Americans. Clemens calls this the “lowest-hanging fruit” for accommodating people whose countries are passing through the same phase of economic development that caused migrants to come to the United States from everywhere from Sweden to South Korea in previous generations.
Opening up more visas for Central Americans wouldn’t require legislation and could be done “literally next month,” Clemens says. And given that Trump and his family already employ many of these guest workers, he says, “they know all about it.”
These problems can be solved. But, not by “malicious incompetence.”
The biggest and most critical statutory change has nothing at all to do with “closing” bogus “loopholes” in asylum law that have been invented to further the White Nationalist narrative.
If I could make just one statutory change, it would be an independent Article I Immigration Court. Over time, a “real” court would establish a fair and efficient administration of the existing asylum laws and would hold the Government accountable for violating and ignoring those laws.
A border control system focused on administering asylum laws, rather than avoiding, flouting, or intentionally misinterpreting them, would look much different and undoubtedly would produce different results. That, in turn, would force the Government to establish and carry out real border law enforcement, rather than just targeting asylum seekers. Without a credible independent Immigration Court system to insure the integrity of the law, no statutory change in immigration law will be fully effective.
Decided May 22, 2019
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
Neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien did not appear at a scheduled hearing after being served with a notice to appear that did not specify the time and place of the initial removal hearing, so long as a subsequent notice of hearing specifying that information was properly sent to the alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
FOR RESPONDENT: Daniel A. Meyer, Esquire, Jackson Heights, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jonathan Graham, Assistant Chief Counsel
BEFORE: Board Panel: GUENDELSBERGER, GRANT, and KENDALL CLARK, Board Members
GRANT, Board Member, with the opinion
27 I&B Dec. 551 (BIA 2019)
Decided May 22, 2019
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
Pursuant to section 240(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(B) (2012), neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien who was served with a notice to appear that did not specify the time and place of the initial removal hearing failed to provide an address where a notice of hearing could be sent. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
FOR RESPONDENT: Renee LaRosee, Esquire, Elizabeth, New Jersey
BEFORE: Board Panel: GUENDELSBERGER, GRANT, and KENDALL CLARK, Board Members
GRANT, Board Member, with the opinion
But here’s some better news from a split 9th Circuit:
Isaias Lorenzo Lopez v. William P. Barr, 9th Cir., 05-22-19, published
Before: Dorothy W. Nelson and Consuelo M. Callahan,
Circuit Judges, and Edward R. Korman,* District Judge. Opinion by Judge Korman;
Dissent by Judge Callahan
* The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.
SUMMARY BY COURT STAFF:
Granting Isaias Lorenzo Lopez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that a Notice to Appear that is defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018), cannot be cured by a subsequent Notice of Hearing and therefore does not terminate the residence period required for cancellation of removal.
Lorenzo sought cancellation of removal, a form of relief from removal that requires that an applicant must, among other requirements, reside in the United States continuously for seven years after having been admitted in any status. However, under the “stop-time” rule, as relevant here, the service of a Notice to Appear under 8 U.S.C. § 1229(a) terminates an alien’s residence. In Lorenzo’s case, an immigration judge and the BIA found him ineligible for cancellation because his March 2008 Notice to Appear terminated his residence period before he had accrued the requisite seven years.
In Pereira v. Sessions, 138 S. Ct. 2105 (2018), the Supreme Court held that a Notice to Appear, as defined in 8 U.S.C. § 1229(a), must contain the time and place at which removal proceedings will be held to trigger the stop-time rule. The panel concluded that Lorenzo’s Notice to Appear
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
LORENZO LOPEZ V. BARR 3
did not terminate his residence because it lacked time-and- place information.
However, because Lorenzo also received a subsequent Notice of Hearing that advised him of the time and place of his proceedings, the Attorney General argued that the Notice of Hearing cured the defective Notice to Appear and triggered the stop-time rule. The Attorney General relied on Popa v. Holder, 571 F.3d 890 (9th Cir. 2009), which held that a Notice to Appear that fails to include the date and time of an alien’s deportation hearing, but that states that a date and time will be set later, is not defective so long as a notice of the hearing is later sent to the alien.
The panel held that a Notice to Appear that is defective under Pereira cannot be cured by a subsequent Notice of Hearing, explaining that the plain language of the statute foreclosed the Attorney General’s argument and that Pereira had effectively overruled Popa.
The panel noted that the BIA reached a conclusion contrary to the panel’s holding in Matter of Mendoza- Hernandez, 27 I. & N. Dec. 520 (BIA 2019) (en banc), where, over a vigorous dissent, a closely divided BIA held that a Notice of Hearing that contains time-and-place information perfects a deficient Notice to Appear and triggers the stop-time rule. However, the panel declined to defer to that conclusion because: (1) the BIA acknowledged that Pereira could be read to reach a different result, and the courts owe no deference to agency interpretations of Supreme Court opinions; (2) the BIA ignored the plain text of the statute; and (3) the BIA relied on cases that cannot be reconciled with Pereira.
Thus, the panel concluded that, because Lorenzo never received a valid Notice to Appear, his residency continued
4 LORENZO LOPEZ V. BARR
beyond 2008 and, accordingly, he has resided in the United States for over seven years and is eligible for cancellation of removal.
Dissenting, Judge Callahan wrote that she does not read Pereira as holding that the notice of the time and place must be provided in a single document. Rather, Judge Callahan reads Pereira as allowing the Department of Homeland Security to cure a deficient notice to appear by subsequently providing a noncitizen with actual notice of the time and place of the removal proceedings, with the result that the stop-time rule is triggered upon the noncitizen’s receipt of the supplemental notice.
Significantly, the Ninth Circuit majority recognized the “vigorous” dissent of Judge John Guendelsberger in Matter of Mendoza-Hernandez, 27 I&N Dec. 520 (BIA 2019), which was joined by Vice Chair Adkins-Blanch and Appellate Immigration Judges Cole, Grant, Creppy, & Kendall Clark. The Ninth Circuit essentially adopted the dissenters’ opinion, quoting at length:
The reasoning of the Supreme Court in Pereira . . . leaves little room for doubt that the Court’s decision requires us to follow the plain language of the Act that the DHS must serve a [8 U.S.C. § 1229(a)(1)] “notice to appear” that includes the date, time, and place of hearing in order to trigger the “stop-time” rule. The Court in Pereira repeatedly emphasized the “plain text” of the “stop- time” rule and left no room for agency gap- filling as to whether an Immigration Court can “complete” or “cure” a putative “notice to appear” by subsequent issuance of a “notice of hearing” that would trigger the “stop-time” rule on the date of that event. Quite simply, . . . a “notice of hearing” is not a “notice to appear” and, therefore, it does not satisfy the requirement that the DHS serve a [Section 1229(a)(1)] “notice to appear” that specifies the date and time of hearing, in order to trigger the “stop-time” rule.
16 LORENZO LOPEZ V. BARR
27 I. & N. Dec. at 540–41 (dissenting opinion) (footnote omitted).
Prior to the “Ashcroft Purge, “ completed in 2003, en banc opinions in precedents and “vigorous dissents” were much more frequent at the BIA. I know, because I frequently was among the dissenters, particularly in the latter days of my BIA career.
Well done dissenters! Bravo!
Given the more or less “built in pro-Government bias” of an administrative “court” captive within the DOJ, the dissents often contained important alternative viewpoints that sometimes were more in accordance with the law as later interpreted by the “real” Article III Courts upon judicial review. The en banc process also forced every BIA Appellate Immigration Judge to take a public position on important issues.
In that way, it promoted both transparency and accountability, as well as “putting into play” alternative interpretations and results that the majority otherwise would “blow by.” Accordingly, it also promoted more rigorous analysis by the majority.
Ashcroft basically removed the “gang of dissenters” from the BIA while “dumbing it down” by mandating mostly “single member panels,” discouraging en bancs, and supressing dissents. Since that time, the quality of the BIA decisions has suffered, and the positions of most individual BIA judges on most precedent issues has become a “mystery.” Not surprisingly, the BIA jurisprudence post-Ashcroft has become very one-sided in favor of the DHS.
The “vigorous en banc dissent” in Matter of Mendoza-Hernandez was striking to observers as the first one in recent memory. And, clearly it made a difference. The lack of meaningful dissent at the BIA is one of many things that have degraded due process, judicial independence, and decisional quality at EOIR since the “Ashcroft Purge.” Worse yet, Barr’s ludicrous “proposed regulations” would further “dumb down” the BIA process.
The importance of dissents and transparency in a legitimate judicial system can’t be overstated. That’s why we need an independent, Article I U.S. Immigration Court that does not answer to the Attorney General.
Pete Dougherty reports for the Green Bay Press Gazette:
The quarterback who guided the Green Bay Packers to five NFL championships and was as popular as any figure in franchise history has died.
Bart Starr, who served as the extension of coach Vince Lombardi on the field during the Packers’ glory days of the 1960s, has died, his family said Sunday in a statement. He was 85.
Starr’s health had been in decline since he suffered a mini-stroke while giving a speech in Madison in 2012. After suffering another stroke, a heart attack and multiple seizures in 2014, he underwent stem cell treatments in 2015 and ’16 and rebounded to some degree.
“We are saddened to note the passing of our husband, father, grandfather, and friend, Bart Starr,” the family statement said. “He battled with courage and determination to transcend the serious stroke he suffered in September 2014, but his most recent illness was too much to overcome.
“While he may always be best known for his success as the Packers quarterback for 16 years, his true legacy will always be the respectful manner in which he treated every person he met, his humble demeanor, and his generous spirit.
“Our family wishes to thank the thousands of friends and fans who have enriched his life – and therefore our lives – for so many decades and especially during the past five years. Each letter, text, phone call, and personal visit inspired him and filled him with joy.
“His love for all of humanity is well known, and his affection toward the residents of Alabama and of Wisconsin filled him with gratitude. He had hoped to make one last trip to Green Bay to watch the Packers this fall, but he shall forever be there in spirit.”
Starr’s place in Packers lore is cemented by his role in Lombardi’s 1960s Packers dynasty, which remains the most successful seven-year stretch in NFL history with five titles, including wins in the first two Super Bowls.
“The Packers Family was saddened today to learn of the passing of Bart Starr,” Packers President/CEO Mark Murphy said in a statement. “A champion on and off the field, Bart epitomized class and was beloved by generations of Packers fans. A clutch player who led his team to five NFL titles, Bart could still fill Lambeau Field with electricity decades later during his many visits. Our thoughts and prayers go out to Cherry and the entire Starr family.”
He is most famous for leading the legendary drive and scoring the touchdown on the iconic play in Packers history, the quarterback sneak against Dallas that won the Ice Bowl in 1967.
The Ice Bowl drive and sneak were the culmination of the Lombardi-era Packers’ will to win, toughness and discipline that Starr embodied as quarterback of those teams.
Former Green Bay Packers quarterback Bart Starr donated his Super Bowl II championship ring and other items to the Hall of Fame during, what his family says, was his last trip to Green Bay on Oct. 23, 2017. Sarah Kloepping/USA TODAY NETWORK-Wisconsin
“That’s the sign of a champion,” Cowboys tackle Ralph Neely told the Green Bay Press-Gazette after the Ice Bowl. “They needed a score, and Starr got it for them.”
Starr’s jersey No. 15 is one of only six numbers retired in Packers history.
. . . .
Go to the link for the complete article with more pictures and videos of Starr’s fabled career.
Growing up in Milwaukee, I was fortunate to see Starr and the Lombardi-era Pack play “live” on several occasions. In those days, unlike now, the Packers played three “home” games at Milwaukee County Stadium. While we didn’t have season tickets, my parents had a few friends who did, so occasionally two tickets would come our way.
While Starr’s most famous play was the successful quarterback sneak against the Cowboys in the “Ice Bowl,” he was also noted for crossing up defenses on third down plays. I remember sitting with my Dad, feet freezing, at County Stadium for a late season game between the Pack and the Cleveland Browns, who at that time had “all world” running back Jim Brown and a stout defense.
The Pack had a third and one in their own territory in tight game. In those days, most offenses were focused on running, rather than the wide-open pass-oriented game of today. That was particularly true of the Pack under Lombardi. “Grind it out” and punish your opponents with tough physical play was more or less the “Lombardi culture.” With future Hall of Fame running backs Jimmy Taylor and Paul Hornung, and one of the premier offensive lines ever, everyone in the stadium, including the Browns, expected a run up the middle or maybe one of the famous “Packer Sweeps” with “pulling guards” leading the way for Taylor or Hornung.
Starr changed the play at the line. On the a snap, he took three streps back and hit his receiver (probably Boyd Dowler, but perhaps Max McGee) with a strike resulting in an untouched trip down the field into the end zone. Classic Starr! It changed the momentum of the game, allowing the Pack eventually to prevail.
I think Starr’s relationship with the legendary Vince Lombardi was the key to Packer success. While Lombardi was undoubtedly a coaching “genius,” he also was a “larger than life figure” who “sucked the air” out of any room he was in. Additionally, he was known for being rather frank and brutal in assessing failures to perform up to his high expectations.
I doubt that most of today’s “top tier” quarterbacks could have existed in Lombardi’s system. And, without somebody like Starr, who understood the “big picture” of what Lombardi was doing, and always delivered under pressure, I don’t think Lombardi and the Pack could have reached the heights of football dominance in the 1960’s as they did.
R.I.P Bart! Thanks for the memories, the excitement, and the inspiration of a life well-lived.
Immigration Judge Denise Slavin recently retired after 24 years on the bench. The Asylumist caught up with her to ask about her career, her role as a leader in the National Association of Immigration Judges, and the state of affairs at the Executive Office for Immigration Review (“EOIR”).
Asylumist: Tell me about how you got to be an Immigration Judge (“IJ”). What did you like and dislike about the job?
Judge Slavin: Before I became a Judge, I had some very different turns in my career. Early on, I worked for the Maryland Commission for Human Relations, where I prosecuted state civil rights complaints. I admired the hearing examiners, and I felt that I wanted to do that type of work. I knew [Immigration Judge] Larry Burman when I was in college, and he suggested I apply to the INS to become a trial attorney. I worked as a trial attorney from 1987 to 1990.
I then worked for the Department of Justice, Office of Special Investigations. This was maybe my favorite job. We investigated Nazi war criminals, and I worked on many interesting cases, including the case of John Demjanjuk. During my five years at the Office of Special Investigations, Judge Creppy became the Chief Immigration Judge. Since I knew him from my work in employer sanctions at INS, I called to congratulate him, and he suggested that I apply for an Immigration Judge position. I applied and got the job.
I started work as an IJ in 1995. My first assignment was in Miami doing non-detained cases. I loved it there–the city was exotic and multicultural. It almost felt like I wasn’t living in the United States. It was also a good court for me to start my career on the bench. I hadn’t practiced in Miami as a Trial Attorney, so there were no expectations of me. Also, it is a large court with many judges to learn from.
I did non-detained cases for 10 years in Miami, but the work started to become a bit tedious. An opportunity came up and I transferred to the detained docket at Krome Detention Center. I loved working on those cases. The legal issues were cutting edge. I remember one three-month period, where our cases resulted in three published BIA decisions. For detained cases, the law develops quickly, and it was very challenging to keep up to speed.
I would have been happy to remain in Miami, but family issues brought me to Baltimore. The DHS and private-bar attorneys in Baltimore are very professional, and my colleagues were excellent mentors. All this helped make my time there very enjoyable.
Asylumist: What could DHS attorneys and the private bar do better in terms of presenting their cases? Are there any common problems that you observed as an IJ?
Judge Slavin: There are a lot of good DHS attorneys in Baltimore. DHS attorneys get a lot of credit with judges if they narrow the issues and stipulate to portions of the case. For example, it is so tedious when DHS inquires about every step the alien takes from her country to the United States. If there is no issue with the journey to the U.S., it is not worth going into all this, and it uses up precious court time. When DHS attorneys ask such questions, it would sometimes be frustrating for me as a Judge, since I do not know what they have in their file and what they might be getting at. But if there is nothing there, it is very frustrating to sit through. DHS attorneys should only explore such avenues of questioning if they think there is an issue there. When they focus on real issues, and don’t waste time sidetracking, they gain credibility with the IJs.
As for the private bar, I appreciate pre-hearing briefs on particular social groups. Also, explaining whether the applicant is claiming past persecution and the basis for that, whether there is a time bar, and nexus. Of course, this can sometimes be straightforward, but other times, it is a bigger issue and a brief is more important.
I encourage both parties to work together to reach agreement on issues whenever possible. Court time is so valuable, Judges want to spend it on the disputed issues.
Asylumist: What about lawyers who are bad actors, and who violate the rules?
Judge Slavin: IJs are prohibited from reporting attorneys directly to bar associations. Instead, we report the offending lawyer to internal EOIR bar counsel, who then makes a decision about whether or not to go to the state bar. Personally, I have been hesitant to report private attorneys because I think the system is unfair–it allows you to report a private attorney, but not a DHS attorney. Although this is unfair (and it is another reason why Immigration Courts should be Article I courts), there were times when I had to report blatant cases of attorney misconduct.
Asylumist: Looking at your TRAC statistics, your denial rates are much higher for detained cases. Some of this probably relates to criminal convictions and the one-year asylum bar, but can you talk about the difference in grant rates for detained vs. non-detained cases? Do IJs view detained cases differently? Perhaps in terms of the REAL ID Act’s evidentiary requirements (since it is more difficult to get evidence if you are detained)?
Judge Slavin: There were two detention centers in the Miami area—Krome and Broward Transitional Center–and they produced two different types of cases. At Krome, detainees mostly had convictions and had been in the U.S. for years. It is very difficult to win asylum if you have been here for that long. It’s hard to show that anyone would remember you, let alone persecute you, if you return to your country after a decade or more. BTC held newly arriving individuals who were claiming asylum. They generally had more viable claims.
As a Judge, I did account for people being detained. I didn’t want to deprive someone of the right to get a piece of evidence, but I didn’t want to keep the person detained for an extra three months at government expense to get the document. If there is no overriding reason to require corroboration, I would not require it for detained applicants. In many cases, corroboration that you would normally expect, you cannot get in the 30-day time-frame of a detained case. I have continued cases were there was needed corroboration, but I generally tried to avoid that.
Also, in adjudicating detained cases, it is important to consider the spirit of the asylum law, which is generous. But for people with convictions, we have to balance the need to protect an individual from persecution against the competing interest to protect the United States from someone who has committed crimes here. In a non-detained asylum case, the potential asylee should be given the benefit of the doubt, but–for example–in a detained case where the applicant has multiple criminal convictions, the person may not receive such a benefit of the doubt, and a Judge would rather err, if at all, on the side of caution and protect the community.
Asylumist: Again, looking at the TRAC statistics, your grant rates tend to be higher than other IJs in your local court. What do you think accounts for that? How do different IJs evaluate cases so differently?
Judge Slavin: In asylum cases, we don’t have a computer to input information and come up with an answer. The immigration bench does and should reflect the diverse political backgrounds of people in our country. I am more on the liberal side, but I will defend colleagues who are more conservative. We don’t want only middle-of-the road judges; we want the immigration bench to reflect our society.
As far as the TRAC numbers, it’s true that people who are represented by attorneys are generally more successful in court. However, if you have a bad case, most decent lawyers won’t take it. Such cases would be denied even with a lawyer. Since people with weak cases have a harder time finding lawyers, the disparity between represented and unrepresented individuals is not as dramatic as the TRAC statistics suggest.
Asylumist: One idea for reducing disparities between IJs is to hold training sessions where “easy” and “hard” judges evaluate a case and discuss how they reach different conclusions. Do you think this is something that would be helpful? What type of training do IJs need?
Judge Slavin: We have not had this type of training, but it would be interesting. EOIR has not been consistent about training. In-person trainings come and go. They do hold video training sessions, but these are horrible. Judges would get some time off the bench to watch the videos, but due to the pressing backlog, we would usually do other work while we were watching.
Also, looking at talking heads is not a good way to learn new information. In addition, the social opportunities to talk to other Judges with different backgrounds and different judicial philosophies that occur only during in-person trainings are invaluable.
The National Association of Immigration Judges (“NAIJ”) has tried to get EOIR to hold different types of trainings, such as regional conferences–where, for example, all the IJs in the Eleventh Circuit would get together–but unfortunately, EOIR has not gone for that approach.
In my experience, the more interactive trainings are more helpful. I’ve learned the most from talking with other IJs and from in-person trainings. This was one of the advantages of serving on a big court like Miami–the opportunity to interact with many other judges and see how they handled their dockets.
Another idea is to give IJs “sabbatical time” off the bench, to observe the cases of other judges. Seeing and talking to other judges about how they handle different issues is very helpful.
Asylumist: You mentioned the NAIJ, the National Association of Immigration Judges, which is basically a union for Immigration Judges. How did you get involved with the NAIJ? What did you do as a member and leader of that organization?
Judge Slavin: I had two mentors–Judge Bruce Solow and Judge John Gossart–who were both past presidents of NAIJ. They encouraged me to get involved with the organization. I ran for Vice President with Judge Dana Leigh Marks, who ran for President. I call Judge Marks my sister from another mother. I love her to death. Prior to becoming VP, I had done some secretarial-type duties for the NAIJ, like taking the minutes. I originally joined NAIJ to help improve the Immigration Court system.
As they say, bad management makes for good unions. When management is good, the number of NAIJ members falls, and when management is bad, more judges join. The situation these days is not good. In particular, the politicization of the Immigration Courts has been outrageous. This has been going on in several administrations, but has reached a peak in the current Administration.
Another issue is that we have judges doing more and more with less and less. It’s crazy. When I was in Miami and we had a thousand cases per judge, we were hysterical. When I left the court in Baltimore, I had 5,000 cases! Despite this, management at EOIR thinks that judges are not producing. The idea of this is absurd. Management simply does not recognize what we are doing, and this is bad for morale.
The previous Director of EOIR, Juan Osuna, appreciated the court and the judges, even if there were some political issues. When you have someone who does not appreciate what you are doing, and who gives you production quotas, it creates a very difficult environment.
These days, I do worry, especially for the newer judges. If you have to focus on getting cases done quickly, it will cause other problems–some cases that might have been granted will be denied if the applicant does not have time to gather evidence. Also, while many decisions can be made from the bench, for others, the Judge needs time to think things through. For me, I had to sleep on some of my cases–they were close calls. I needed time to decide how best to be true to the facts and the law. I also had to think about how my decision might affect future cases—most IJs want to be consistent, at least with their own prior decisions. To make proper decisions often takes time, and if judges do not have time to make good decisions, there will be appeals and reversals. For these reasons, production quotas will be counter-productive in the long run.
Other problems with the court system include the aimless docket reshuffling, which started with the Obama administration. IJs should determine on their own how cases are set on their dockets. Cases should be set when they are ready to go forward, not based on the priorities of DHS.
The main issue here is that DHS [the prosecutor] is very much controlling EOIR [the court]. The ex-parte communication that occurs on the macro level is unheard of–the priorities of DHS are communicated through backdoor channels to EOIR, and then EOIR changes its priorities. Have you ever heard of a state prosecutor’s office telling a state court which cases to set first? This re-shuffling affects IJs’ dockets–we would receive lists of case numbers that we had to move to the front of the queue. We had no control over which cases had to be moved. Instead, cases were advance based on DHS priorities.
Maybe one silver lining of the politicization under the current Administration is that it has helped people realize the need for an Article I court.
Asylumist: Bad management makes for good unions. What is your opinion of the leadership at EOIR today? What more could they do to support judges?
Judge Slavin: It’s hard to think about EOIR in this political environment. Former Director Juan Osuna was wonderful. He spent a lot of time minimizing damage to the court by the Department of Justice and Congress; for example, by explaining how judicial independence and due process prevented placing artificial constraints on the number or length of continuances granted. These concepts seem to elude the current leadership of EOIR, and the administration has moved to strip us of the tools we need (such as administrative closure) to control our dockets.
The court has many needs that are not being addressed. We need more and better training. We need larger courtrooms–it drives me crazy that we cannot get courtrooms the size we need; with children, families, and lawyers–we need more space.
Also, we need more judges. I retired, and a lot of people coming up behind me are getting ready to retire. It is hard to keep up with the numbers. One idea is to implement phased retirement for IJs, so judges could work two or three days per week. This was approved four years ago, but not implemented. I do not know why.
Judge Marks [former President of the NAIJ] and I talked to EOIR about hiring retired IJs back on a part-time basis. We asked about this 10 years ago, and they are finally getting around to it. That will help, and hopefully, EOIR can step up that program.
Recent changes that affected judges directly, such as limiting administrative closure, are not good for case management.
The NAIJ leadership and I have talked to EOIR Director James McHenry about some of this. He is not getting it. He is very young, and he thinks he has a new approach, but he does not know the history or background of EOIR, and he does not seem to grasp what the agency needs to do. He also does not understand how overworked judges have been for such a long time, and seems to think the problems with the court are based on lack of commitment and work ethic of the judges. Nothing could be farther from the truth.
Judge Slavin: Article I courts would still be part of the Executive Branch. Immigration is a plenary power, but when it comes to case-by-case adjudication, that issue disappears. The bottom line is that people are entitled to due process, and that requires judicial independence. I don’t think you can have due process without judicial independence. This is one of the hallmarks of the America legal system. Even arriving aliens are entitled to due process. If we change that, we are starting to give up who we are. If we are trying to save the U.S. from terrorists by eliminating due process for all, what are we saving? It is taking away an important tenant of our democratic system.
There is a plan to transition the Immigration Courts to Article I courts. The Bankruptcy Court did it. The plan allows for grandfathering of sitting IJs for a limited period. The sooner this is done, the easier it will be. And in fact, it must be done.
If we had Article I courts, we would eliminate aimless docket reshuffling and political priorities. Judges would control their own dockets, and this would lead to better morale and better efficiency.
Asylumist: Thank you for talking to me today.
Judge Slavin: Thank you
We’ll said, Denise, my long-time friend and colleague!
As long as there is a DOJ and EOIR is part of it, there will be “Aimless Docket Reshuffling” and “Extreme Mission Failure” meaning that “guaranteeing fairness and Due Process for all” will be unachievable.
In reviewing such decisions, we treat factual findings “as conclusive unless the evidence was such that any reasonable adjudicator would have been compelled to a contrary view,” and we uphold the agency’s determinations “unless they are manifestly contrary to the law and an abuse of discretion.” Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). These standards demand deference, but they do not render our review toothless. The agency “abuse[s] its discretion if it fail[s] to offer a reasoned explanation for its decision, or if it distort[s] or disregard[s] important aspects of the applicant’s claim.” Id.; accord Zavaleta-Policiano, 873 F.3d at 247.
Orellana contends that the IJ and the BIA did precisely this in their reasoning as to whether the Salvadoran government was willing and able to protect her.3 We must agree. Examination of the record demonstrates that the agency adjudicators erred in their treatment of the evidence presented. Here, as in Tassi and Zavaleta-Policiano, the agency adjudicators both disregarded and distorted important aspects of the applicant’s claim.
First, agency adjudicators repeatedly failed to offer “specific, cogent reason[s]” for disregarding the concededly credible, significant, and unrebutted evidence that Orellana provided. Tassi, 660 F.3d at 722; accord Ai Hua Chen, 742 F.3d at 179. For example,
3 Orellana also contends that the BIA failed to conduct separate inquiries into the Salvadoran government’s “willingness” to protect her and its “ability” to do so. See Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013) (finding legal error where the BIA considered a government’s efforts at offering protection without “examin[ing] the efficacy of those efforts”). After careful review of the record, we must reject this contention. The BIA applied the proper legal framework. It treated “willingness” and “ability” as distinct legal concepts, and it sufficiently addressed each in its order.
Orellana testified that during her third attempt to obtain a protective order in 2009, the Salvadoran family court refused to offer aid and instead directed her to the police station, which also turned her away. Yet the IJ gave this evidence no weight.
The IJ declined to do so on the theory that it was “unclear and confusing as to why exactly she was not able to get assistance from either the police or the court during these times.” But the record offers no evidence to support the view that the Salvadoran government officials had good reason for denying Orellana all assistance. Cf. Tassi, 660 F.3d at 720 (requiring agency to “offer a specific, cogent reason for rejecting evidence” as not credible). Rather, Orellana offered the only evidence of their possible motive aside from the family court officials’ claim that they were “too busy” — namely, uncontroverted expert evidence that “[d]iscriminatory gender biases are prevalent among [Salvadoran] government authorities responsible for providing legal protection to women.”
Nor did the IJ or the BIA address Orellana’s testimony, which the IJ expressly found credible, that she called the police “many times” during a twelve-year period, calls to which the police often did not respond at all. This testimony, too, was uncontroverted. To “arbitrarily ignore” this “unrebutted, legally significant evidence” and focus only on the isolated instances where police did respond constitutes an abuse of discretion.Zavaleta-Policiano, 873 F.3d at 248 (quoting Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009)); accord Hernandez-Avalos, 784 F.3d at 951 (“[A]n IJ is not entitled to ignore an asylum applicant’s testimony in making . . . factual findings.”).
The agency’s analysis also “distorted” the record evidence concerning the instances of government involvement. Tassi, 660 F.3d at 719. For example, although the IJ accepted as credible Orellana’s testimony that Salvadoran family court employees rebuffed her third request for a protective order because “they were too busy” and suggested that she try again another day, the IJ inexplicably concluded from this testimony that Salvadoran family court employees “offered continued assistance” to Orellana. The IJ similarly distorted the record in finding that, in 2006, “the [family] court in El Salvador acted on [Orellana’s] behalf” when it took no action against Garcia, and in finding that, in 2009, a different Salvadoran court “attempted to assist” Orellana bydenying her the protective order that she requested.
Despite these errors, the Government asserts three reasons why the BIA’s order assertedly finds substantial evidentiary support in the record. None are persuasive.
First, the Government argues that Orellana’s own testimony established that she had “access to legal remedies” in El Salvador. But access to a nominal or ineffectual remedy does not constitute “meaningful recourse,” for the foreign government must be both willing and able to offer an applicant protection. Rahimzadeh v. Holder, 613 F.3d 916, 921 (9th Cir. 2010). As the Second Circuit has explained, when an applicant offers unrebutted evidence that “despite repeated reports of violence to the police, no significant action was taken on [her] behalf,” she has provided “ample ground” to conclude “that the BIA was not supported by substantial evidence in its finding that [she] did not show that the government was unwilling to protect [her] from private persecution.” Aliyev v.
Mukasey, 549 F.3d 111, 119 (2d Cir. 2008). Evidence of empty or token “assistance” 11
cannot serve as the basis of a finding that a foreign government is willing and able to protect an asylum seeker.
Second, the Government contends that Orellana cannot show that the Salvadoran government is unable or unwilling to protect her because she did not report her abuse until 1999 and later abandoned the legal process. But Orellana’s initial endurance of Garcia’s abuse surely does not prove the availability of government protection during the decade-long period that followed, during which time she did seek the assistance of the Salvadoran government without success. As to Orellana’s asserted abandonment of the Salvadoran legal process, we agree with the Government that an applicant who relinquishes a protective process without good reason will generally be unable to prove her government’s unwillingness or inability to protect her. But there is no requirement that an applicant persist in seeking government assistance when doing so (1) “would have been futile” or (2) “have subjected [her] to further abuse.” Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). Here, Orellana offered undisputed evidence of both.
Finally, the Government suggests that even if the Salvadoran government had previously been unwilling or unable to help Orellana, country conditions had changed by 2009 such that she could receive meaningful protection. Because the agency never asserted this as a justification for its order, principles of administrative law bar us from
dismissing the petition on this basis. See SEC v. Chenery Corp., 318 U.S. 80, 94–95 (1943).4
We have often explained that an applicant for asylum is “entitled to know” that agency adjudicators “reviewed all [her] evidence, understood it, and had a cogent, articulable basis for its determination that [her] evidence was insufficient.” Rodriguez- Arias v. Whitaker, 915 F.3d 968, 975 (4th Cir. 2019); accord, e.g., Baharon, 588 F.3d at 233 (“Those who flee persecution and seek refuge under our laws have the right to know that the evidence they present . . . will be fairly considered and weighed by those who decide their fate.”). That did not happen here.
We therefore vacate the order denying Orellana asylum.5 On remand, the agency must consider the relevant, credible record evidence and articulate the basis for its decision to grant or deny relief.
This is how “malicious incompetence” builds backlog. This case has been pending since March 2011, more than eight years.It has been before an Immigration Judge twice, the BIA three times, and the Fourth Circuit twice. Yet, after eight years, three courts, seven judicial decisions, and perhaps as many as 17 individual judges involved, nobody has yet gotten it right! This is a straightforward “no brainer” asylum grant!
However, the Fourth Circuit, rather than putting an end to this continuing judicial farce, remands to the BIA who undoubtedly will remand to the Immigration Judge. Who knows how many more years, hearings, and incorrect decisions will go by before this respondent actually gets the justice to which she is entitled?
Or maybe she won’t get justice at all. Who knows what the next batch of judges will do? And, even ifthe respondent “wins,” is getting asylum approximately a decade after it should have been granted really “justice?” This respondent actually could and should be a U.S. citizen by now!
To make things worse, although the DHS originally agreed that most of the facts, the “particular social group,” as well as “nexus” were “uncontested,” now, after eight years of litigating on that basis, likely spurred by Session’s White Nationalist unethical attack on the system in Matter of A-B-, the DHS apparently intends to “contest” the previously stipulated particular social group.
Rather than putting an end to this nonsense and sanctioning the Government lawyers involved for unethical conduct and delay, the Fourth Circuit merely “notes in passing,” thereby inviting further delay and abuse of the asylum system by the DHS and EOIR.
This well-documented, clearly meritorious case should have been granted by the Immigration Judge, in a short hearing, back in March 2013, and the DHS should have (and probably would have, had the Immigration Judge acted properly) waived appeal.
Indeed, in a functional system, there would be a mechanism for trained Asylum Officers to grant these cases expeditiously without even sending them to Immigration Court.
The bias, incompetence, and mismanagement of the Immigration Court system, and the unwarranted tolerance by the Article III Courts, even those who see what is really happening, is what has sent the system out of control
Don’t let the Administration, Congress, the courts, or anyone else blame the victims of this governmental and judicial misbehavior — the asylum seekers and their lawyers, who are intentionally being dehumanized, demeaned, and denied justice in a system clearly designed to screw asylum seekers, particularly women fleeing persecution from the Northern Triangle!
We don’t need a change in asylum law.We need better judges and better administration of the Asylum Office, as well as some professionalism, sanity, and discipline from ICE and CBP about what cases they choose to place in an already overtaxed system.
That’s why it’s critical for advocates not to let the Article IIIs “off the hook” when they improperly “defer” to a bogus system that currently does not merit any deference, rather than exposing the misfeasance in this system and forcing it to finally comply with Constitutional Due Process of law.
While the statute says Article III Courts should “defer” to fact findings below, such deference should be “one and done.” In cases such as this, where EOIR has already gotten it wrong (here five times at two levels), Due Process should require “enhanced scrutiny” by the Article IIIs.
It’s welcome to get a correct published analysis from an Article III.
But, as noted by the Fourth Circuit, this is at least the third time the BIA has ignored the Fourth Circuit’s published precedents by “disregarding and distorting” material elements of a respondent’s claim. There is a name for such conduct: fraud.
Yet, the Fourth Circuit seems unwilling to confront either the BIA or their apologists at the Office of Immigration Litigation (“OIL”) for their unethical, incompetent, frivolous, and frankly, contemptuous behavior.
That’s why it’s absolutely critical for the advocacy community (the “New Due Process Army”) to keep pushing cases like this into the Article III Courts and forcing them to confront their own unduly permissive attitude toward the BIA which is helping to destroy our system of justice.
And, if the Article IIIs don’t get some backbone and creativity and start pushing back against the corrupt mess at EOIR, they will soon find the gross backlogs caused by “Aimless Docket Reshuffling” and “malicious incompetence” will be transferring to their dockets from EOIR.
Due Process Forever; complicity in the face of “malicious incompetence,” never!
THE 5-4-1 PLAN FOR RESTORING DUE PROCESS TO A BIASED & DYSFUNCTIONAL U.S. IMMIGRATION COURT
Federal Bar Association, Detroit Chapter
May 22, 2019
PAUL WICKHAM SCHMIDT
U.S. IMMIGRATION JUDGE (RETIRED)
MEMBER, ROUNDTABLE OF FORMER IMMIGRATION JUDGES
Good afternoon. Thanks so much to your Chapter Chair Carrie Pastor for inviting me and to you for coming out to listen.
Carrie and I have just returned from the Federal Bar Association (“FBA”) Annual Immigration Conference in Austin, Texas. We had over 500 enthusiastic attendees, an unprecedented level of interest and enthusiasm. And, most exciting, next year’s conference will be right here in Detroit, for the first time. I congratulate your chapter and look forward to once again shattering all attendance records!
While in Austin, I met with and recruited many new members of the “New Due Process Army.” These are legal professionals who are committed to fighting as hard and as long as it takes to triumph against the vicious attack on our Constitution, the rule of law, and human decency being waged daily by this Administration – much of it directed against the most vulnerable and deserving of our protection. Those consist of scared and desperate women, children, and families seeking legal asylum protection, fleeing from the “failed states” of the Northern Triangle of Central America. That is an area where femicide, gangs acting as de facto governments, and government corruption are rampant.
As many of you know, I’m retired, so I no longer have to give my famous, or infamous, “super-comprehensive disclaimer.” However, I do want to hold Carrie, the FBA, you, and anybody else of any importance whatsoever “harmless” for my following remarks.
They are solely my views, for which I take full responsibility. That’s right, no party line, no “bureaucratic doublespeak,” no BS. Just the truth, the whole truth, and nothing but the truth, of course as I define truth, based on my four and one-half decades in the fray at all levels of our immigration system.
Some say that I speak in anger. I prefer to think of it as passion. But, either way, I am channeling the anger and outrage of those of us like my many colleagues in the Roundtable of FormerImmigration Judges who have spent major parts of our professional lives, however imperfectly, trying to advance “good government” and working to make the EOIR vision of “guaranteeing fairness and Due Process for all a reality.
Of course, watching the system that we worked so hard to build being destroyed by a White Nationalist kakistocracy generates anger and outspoken criticism. Since those in the system, other than officers of the National Association of Immigration Judges (“NAIJ”) have been “muzzled,” if we don’t speak out for judicial independence, who will? And, for those of you who aren’t familiar with the term, a “kakistocracy” is “government by the least suitable or competent among us” – in other words, government by “the worst among us.”
I will tell you about my “5-4-1 program.” I’m going to highlight five horrible problems infecting justice and Due Process in today’s U.S. Immigration Courts; four badly needed and long overdue reforms, and one critical solution.
II. THE FIVE PROBLEMS
Turning to the problems, the U.S. Immigration Court, which includes both a trial division and an appellate division known as the Board of Immigration Appeals (“BIA”) isn’t a “court system” as any right-thinking person would envision it.
First, unlike any normal court system, the chief prosecutor, the Attorney General selects, directs, and “supervises” the “judges.”Not surprisingly, over the last decade, over 90% of the judges have come directly from government or prosecutorial backgrounds. Well-qualified candidates from private practice, NGOs, and academia have effectively been excluded from participation in today’s immigration judiciary.
As part of his “improper influence” over the Immigration Courts, former Attorney General Sessions imposed, over the objection of all judges I’m aware of, demeaning and counterproductive “production quotas” that elevate productivity and expediency over quality, Due Process, and fundamental fairness.
And, current Attorney General Bill Barr has enthusiastically aggravated this problem. As we speak, incredibly, Barr is working hard to change the regulations to further “dumb down” the BIA and extinguish any last remaining semblance of a fair and deliberative quasi-judicial process. If he gets his way, which is likely, the BIA will be “packed with more restrictionist judges,” decentralized so it ceases to function as even a ghost of a single deliberative body, and the system will be “gamed” so that any two “hard line” Board “judges,” acting as a “fake panel” will be able to designate anti-asylum, anti-immigrant, and pro-DHS “precedents” without even consulting their colleagues.
Even more outrageously, Barr and his “do-bees” over at the Office of Immigration Litigation (“OIL”) intend to present this disingenuous mockery as the work of an “expert tribunal” deserving so-called “Chevron deference.”
Second, notwithstanding that, according to the Supreme Court, “everything that makes life worth living” might be at issue in Immigration Court, there is no right to appointed counsel.Therefore, DOJ has taken the absurd position that infants, toddlers, and others with no understanding whatsoever of our complicated legal, asylum, and immigration systems are forced to “represent themselves” in life or death matters against experienced ICE Counsel. The Government disingenuously claims that this complies with Due Process.
Obviously, these first two factors give the DHS a huge built in advantage in removal proceedings. But, sometimes that isn’t enough. Somehow, despite the odds being stacked against them, the individual respondent or applicant prevails. That’s when the “third absurdity” comes in to play.
The chief prosecutor, the Attorney General, can reach into the system and change any individual case result that he or she doesn’t like and rewrite the immigration law in DHS’s favor through so-called “certified precedents.”Former Attorney General Sessions, a committed lifelong xenophobe and the self-proclaimed “king of immigration enforcement” exercised this authority often, more in less than two years than the preceding two Attorneys General over the eight years they served. Sometimes he intervened even before the BIA had a chance to rule on the case or over the joint objections of both the individual and the DHS. Barr recently intervened to reverse a long-standing precedent and thereby deprive individuals who had demonstrated a “credible fear” of persecution from even seeking a bond from an Immigration Judge.
The U.S. Court of Appeals for the D.C. Circuit, in a recent decision written by Judge Tatel invalidating the rulings of a military judge on ethical grounds said: “This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality.”
Like military judges, Immigration Judges and BIA Judges sit on life or death matters. The same is true of the Attorney General when he or she chooses to intervene in an individual case purporting to act in a quasi-judicial capacity.
Yet, Attorney General Barr has very clearly lined himself up with the interests of the President and his policies, as shown by his recent actions in connection with the Mueller report. And, previous Attorney General Jeff Sessions was a constant cheerleader for DHS enforcement as well as publicly favoring a White Nationalist restrictionist immigration agenda. In Sessions’s case, that included references to “dirty attorneys” representing asylum seekers, use of lies and demonstrably false narratives attempting to connect migrants with crimes, and urging Immigration Judges adjudicating asylum cases not to be moved by the compelling humanitarian facts of such cases.
Clearly, Barr and Sessions acted unethically and improperly in engaging in quasi-judicial decision making where they were so clearly identified in public with the government party to the litigation. My gosh, in what “justice system” is the “chief prosecutor” allowed to reach in and change results he doesn’t like to favor the prosecution? It’s like something out of Franz Kafka or the Stalinist justice system.
Fourth, this system operates under an incredible 1.1 million case backlog, resulting largely from what we call “Aimless Docket Reshuffling” or “ADR,” by DOJ politicos and their EOIR underlings. This largely self-created backlog continues to grow exponentially, even with a significant increase in judges, without any realistic plan for backlog reduction. In other words, under the “maliciously incompetent” management of this Administration, more judges have meant more backlog.
Even more disgustingly, in an attempt to cover up their gross incompetence, DOJ and EOIR have tried to shift the blame to thevictims— asylum applicants, migrants, their hard working often pro bono or low bono lawyers, and the judges themselves. Sophomoric, idiotic non “solutions” like “deportation quotas for judges,” limitations on legitimate continuances, demeaningly stripping judges of the last vestiges of their authority to manage dockets through administrative closing, and mindlessly re-docketing cases that should remain off docket have been imposed on the courts over the objections of most judges.
For example, Sessions abolished “administrative closing” of dormant or non-priority cases and imposed what are likely unconstitutional limitations on continuances. However, this ignores the fact that much, probably the majority, of Immigration Court delay and continuances are the result of “Aimless Docket Reshuffling” generated by EOIR itself. Despite falsely claiming to be an “fair and impartial court system” EOIR routinely “pretzels itself up” to meet DHS Enforcement’s ever changing “priority of the day,” without regard to administrative efficiency or the due process rights of individuals whose cases have been pending for years before these inept “captive courts.”
The result has been an increase in “Aimless Docket Reshuffling” (“ADR”) the only thing that DOJ politicos and EOIR bureaucrats seem to excel in. Perhaps, some of YOU have been victims of ADR!
Fifth, the Administration, DOJ, and EOIR use so-called “civil immigration detention” mostly in absurdly, yet intentionally, out of the way locations, to limit representation, coerce migrants into abandoning claims or appeals, and supposedly deter future migration, even though there is scant evidence that abusive detention actually acts as a deterrent. This is done with little or no effective judicial recourse in too many cases. Indeed, a recent TRAC study shows neither rhyme nor reason in custody or bond decisions in Immigration Court, even in those cases where the Immigration Judges at least nominally had jurisdiction to set bond.
Now, I’ve told you how due process and fairness are being mocked by DOJ and EOIRin a dysfunctional Immigration Court system where judges have effectively been told to act as “DOJ attorneys” carrying out the policies of their “partners” in DHS enforcement, supposedly a separate party to Immigration Court proceedings but now “driving the train.”
Indeed, in a move vigorously and publicly protested by our “Roundtable of Former Immigration Judges,” EOIR recently put out a “fact sheet” of blatant lies and nativist false narratives designed to denigrate the very individuals who seek justice before them and to discredit their dedicated, and often pro bono or low bono, attorneys? What kind of “court system” acts in such an unethical manner against one party and in favor of another? This system is as disgraceful as it is dysfunctional.
I. THE FOUR REFORMS
Here are the four essential reforms.First, and foremost,a return to the original “Due Process Focus” of the Immigration Courts: through teamwork and innovation be the world’s best courts guaranteeing fairness and Due Process for all. DOJ politicos and EOIR bureaucrats must be removed from their improper influence over this system that has turned it into a tool of DHS enforcement. Everything done by the courts must go through a “Due Process filter.”
Second, replace the antiquated, inappropriate, bloated, and ineffective “Agency-Style Structure” with a “Court-Style Structure” with sitting judges rather than DOJ politicos and EOIR bureaucrats in charge.Court administration should be decentralized through local Chief Judges, as in other systems, appointed competitively through a broad-based merit system and required to handle a case load. Sitting judges, not bureaucrats, must ultimately be in charge of administrative decisions which must be made in a fair and efficient manner.That process would consider the legitimate needs of DHS enforcement, along with the needs of the other parties coming before the court, and results in a balanced system, rather than one that inevitably favors DHS enforcement over Due Process, quality, and fairness.
Third, create a professional administrative office modeled along the lines of the Administrative Office for U.S. Courts to provide modern, effective judicial support and planning. The highest priorities should be implementing a nationwide e-filing system following nearly two decades of wasted and inept efforts by EOIR to develop one, efforts that have once again been put “on hold” due to mismanagement. A transparent, merit-based hiring system for Immigration Judges, with fair and equal treatment of “non-government” applicants and a system for obtaining public input in the process is also a must. Additionally, the courts must be redesigned with the size of the dockets and public service in mind, rather than mindlessly jamming a 21st century workload into “mini-courts” designed for a long bygone era.
Fourth, a real Appellate Division that performs as an independent court, must replace the “Falls Church Service Center” a/k/a the BIA. The crippling John Ashcroft purge-related bogus “reforms” turned the BIA into a subservient assembly line. Now, Barr threatens to further “dumb down” the appellate process through the regulations I mentioned earlier. These ill-advised procedures which have destroyed professionalism and appellate independence at the BIA must be eradicated. The BIA today a false “deliberative body” that is far removed from the public it serves and no longer deliberates in a publicly visible manner.
A new, independent Appellate Division, not politicos and bureaucrats, must be responsible for promulgating precedents in controversial areas, insuring that the generous asylum standards set forth years ago by the Supreme Court in INS v. Cardoza-Fonseca andby the BIA in Matter ofMogharrabi are made realities, not just lip service. The Appellate Division must finally rein in wayward judges, the worst of whom have turned some areas into veritable “asylum and due process free zones” resulting in loss of public confidence as well as denial of Due Process and unfair removals to life threatening situations.
Some might say that these reforms only deal with two of the five glaring problems — prosecutorial control and political interference. But, an independent, judge-run, Due Process focused U.S. Immigration Court where judges control their own dockets free from political interference and bureaucratic incompetence will be able to work with both private entities and the DHS to solve the problems leading to lack of representation, “Aimless Docket Reshuffling” and backlog building, and abusive use of immigration detention.
Naturally, all problems that have been allowed to fester and grow over decades of calculated indifference and active mismanagement won’t be solved “overnight.” Additional legislative fixes might eventually be necessary. But, fixing Due Process is a prerequisite that will enable other problems and issues to be constructively and cooperatively addressed, rather than just being swept under the carpet in typical bureaucratic fashion.
II. THE ONE SOLUTION
So, now the “One Solution:” Congress must create an independent Article I U.S. Immigration Court. That’s exactly what the ABA Commission on Immigration recommended in a comprehensive study and report released earlier this year.
Indeed, the ABA Commission found that the current system is so dysfunctional that it withdrew a previous recommendation for hiring more Immigration Judges at present. In other words, putting additional new, and often inadequately trained, judges in a badly broken system will aggravate the problems, rather than solving them. In this respect, it’s important to recognize that although this Administration has substantially increased the number of Immigration Judges on the bench, more judges have actually resulted in more backlog given the lack of discipline and competent management in the overall immigration system, including the Immigration Courts.
For example, incompetent management planning at EOIR has resulted in interpreter shortages, hiring freezes, and suspension of the much-needed “e-filing pilot program.” All of this leads to more “EOIR-style ADR.”
Thus, the ABA joins the FBA, AILA, and the NAIJ, all organizations to which I belong, in recommending an Article I legislative solution. Significantly, after watching this Administration’s all-out assault on Due Process, common sense, truth, the rule of law, human decency, and best practices, the ABA deleted a prior “alternative recommendation” for an independent agency within the Executive Branch. In other words, we now know, beyond any reasonable doubt, that the Executive Branch is both unwilling and unable to run an independent court system in accordance with Due Process.
I highly recommend that you read the comprehensive ABA report in two volumes: Volume I is an “Executive Summary;” Volume II contains the “Detailed Findings.” You can find it on the ABA website or onimmigrationcourtside.com my blog, which, of course, I also highly recommend.
In closing, we needchange and we need itnow! Every day in our so-called “Immigration Courts” Due Process is being mocked, fundamental fairness violated, and unjust results are being produced by a disastrously flawed system run by those with no interest in fixing it. Indeed, as I mentioned, one of the stunning recommendations of the ABA is that no further judges be added to this totally dysfunctional and out of control system until it is fixed.
As the great Dr. Martin Luther King, Jr., once said “injustice anywhere is a threat to justice everywhere.” Tellyour elected representatives that you’ve had enough injustice and are sick and tired of being treated as actors in a repertory company specializing in “theater of the absurd” masquerading as a “court system.” Demand Article I now!
Thanks for listening! Get inspired! Join the New Due Process Army, do great things, save deserving lives, and remember: Due Process Forever, malicious incompetence never!
NPR: The plan would prioritize merit-based immigration, limiting the number of people who could get green cards by seeking asylum or based on family ties. But it would keep immigration levels static, neither increasing or decreasing the number of people allowed to legally enter the U.S. each year.
NYT: Last year, fewer immigrants applied for [U] visas — the first annual decline since 2007 — in what law enforcement officials and lawyers called a sign that immigrants were growing wary of helping the police and prosecutors.
WaPo: An attempt by President Trump’s senior adviser Stephen Miller to engineer a new shake-up at the Department of Homeland Security was blocked this week by Kevin McAleenan, the department’s acting secretary, who said he might leave his post unless the situation improved and he was given more control over his agency, administration officials said. See also Before Trump’s purge at DHS, top officials challenged plan for mass family arrests.
WaPo: “E-Verify is going to be possibly a part of it,” Trump replied. “The one problem is E-Verify is so tough that in some cases, like farmers, they’re not — they’re not equipped for E-Verify. I mean, I’d say that’s against Republicans. A lot of the Republicans say you go through an E-Verify.”
On May 13, 2019, the National Association of Immigration Judges (NAIJ) responded to EOIR’s Myths vs. Fact memo issued on May 8, 2019. Their response outlines key assertions made in the EOIR memo that “mischaracterize or misrepresent the facts.” AILA Doc. No. 19051334
In March of 2019, the Social Security Administration (SSA) began mailing notifications to employers identified as having at least one name and Social Security Number (SSN) combination submitted on wage and tax statement (Form W-2) that do not match its records. AILA Doc. No. 19051500
NBC: A government review of how journalists, attorneys, immigration advocates, and activists were monitored and tracked by U.S. border agencies confirms the Mexican government had a major role in the controversial tracking program.
CNN: DHS ran the DNA pilot program to help identify and prosecute individuals posing as families in an effort to target human smuggling. The Rapid DNA testing, as it’s known, involves a cheek swab and can, on average, provide results in about 90 minutes.
Coixes of NYC: Only weeks before the city will announce how its $92 billion budget for fiscal year 2020 will be allocated, pro-immigrant groups are clamoring for more resources for vital programs that support vulnerable communities.
Newsday: A new bill that has picked up key support in the State Legislature would make it a misdemeanor for an employer to report the “suspected citizenship or immigration status” of an employee to federal authorities.
Tuscon: The statements were made in a text message sent by Agent Matthew Bowen, 39, who is accused of knocking down a Guatemalan man with his Border Patrol vehicle on Dec. 3, 2017, and then lying in a report about the incident, according to documents filed in U.S. District Court in Tucson.
LA Times: He knew Trump planned to get tough on immigration — building a wall and deporting drug dealers, rapists and killers. He never imagined anyone would consider his sweet stay-at-home wife a “bad hombre.”
Nola: Mexico’s statistics institute estimated this month that the U.S.-born population in this country has reached 799,000 – a roughly fourfold increase since 1990. And that is probably an undercount. The U.S. Embassy in Mexico City estimates the real number at 1.5 million or more.
Quartz: More than 544,000 immigrants became US citizens in the first three quarters of fiscal year 2018, overall a 15% increase from the same period a year ago, according to the latest data from the US Department of Homeland Security. The largest year-to-year increase occurred in the first quarter of 2018, however there was a slight decrease in the third quarter. See also Immigrant soldiers now denied US citizenship at higher rate than civilians.
The government filed a memo in support of its motion to dismiss, along with declarations from Cynthia Crosby, Deputy Chief Clerk for the BIA, and Joseph Schaaf, the Supervisory Attorney Advisor who manages EOIR’s FOIA Unit. (NYLAG v. BIA, 5/3/19) AILA Doc. No. 18102232
ACLU: The American Civil Liberties Union of Texas and the ACLU Border Rights Center filed an administrative complaint concerning the mistreatment of migrants detained at Rio Grande Valley Border Patrol facilities.
The court denied the petition for review, finding that the petitioner’s conviction for conspiracy in the second degree to commit a felony—namely, murder in the second degree—under New York law constitutes an aggravated felony. (Santana-Felix v. Barr, 5/9/19) AILA Doc. No. 19051638
The court affirmed the BIA’s order denying the petitioners’ applications for asylum and withholding of removal, finding that the BIA did not err by refusing to consider the petitioners’ reformulated particular social group (PSG) on appeal. (Cantarero-Lagos, et al., v. Barr, 5/6/19) AILA Doc. No. 19051637
The court dismissed the petition for review, holding that, under the plain language of 8 USC §1231(a)(5), it lacked jurisdiction to review the petitioner’s underlying 2005 removal order in the context of his reinstatement proceedings. (Villa v. Barr, 5/9/19) AILA Doc. No. 19051642
ICE announced that 50 people are in law enforcement custody after a federal grand jury returned a 206-count indictment criminally charging 96 people for their alleged roles in a large-scale marriage fraud scheme. AILA Doc. No. 19051432
DHS OIG issued a report on CLAIMS3, its electronic system of record, and found that USCIS has not implemented an effective process to track adjudicative decisions and ensure data integrity, noting that USCIS cannot reliably track decisions back to the officer responsible for those decisions. AILA Doc. No. 15051671
AILA updated its practice alert with a summary of engagement with the NBC on this issue. In early May 2019, the NBC confirmed that their Interim Case Management System (ICMS) Team will review the issue and take action to address it if necessary. AILA Doc. No. 18102905
DHS notice of the re-establishment of a matching program between USCIS and the New York Department of Labor to verify the immigration status of non-U.S. citizens who apply for federal unemployment benefits. Comments are due 6/17/19. (84 FR 22510, 5/17/19) AILA Doc. No. 19051771
Albany, NY Jurisdiction Change Details
USCIS: Applicant cases from the zip codes in the following counties will be permanently realigned from the New York City, NY Field Office to the Albany, NY Field Office: Ulster, Dutchess, Sullivan, Orange, and Putnam. This permanent change will go into effect on Monday, May 27, 2019 and will apply to all immigration benefit types adjudicated in the field office, including naturalization applications and adjustment of status (green card) applications and petitions. The Albany, NY Field Office is located at 1086 Troy-Schenectady Road in Latham, N.Y.
Newark, NJ Temporary Caseload Shift
USCIS: A portion of application cases filed by applicants from Kings and Richmond counties, which are usually adjudicated at the Brooklyn, NY Field Office, will be temporarily realigned to the Newark, NJ Field Office. This temporary change will occur in June 2019. The caseload shift to Newark, NJ applies ONLY to naturalization applications (Form N-400 – Application for Naturalization). Applicants will complete their naturalization interview and civics test at the Newark, NJ Field Office on 970 Broad Street in Newark.
Immigration Court Closures
EOIR: The immigration judge conference will be taking place on June 19th and 20th this year. Hearings on those dates will be rescheduled.
On a weekday morning inside 26 Federal Plaza, you’ll see hundreds of people waiting in lines outside the small immigration courtrooms housed on the 12th and 14th floors. These hallways and courtrooms have no windows, making the place feel even more claustrophobic as guards remind everyone to stand against the walls to avoid blocking traffic.
In this bureaucratic setting, you’ll meet people from Central America, China, India and Eastern Europe all trying to stay in the U.S. Parents clutch the tiny hands of toddlers who want to run and play. Inside the court rooms, mothers hold crying babies on their laps and parents with large families cluster their children around them once they’re seated before a judge.
It’s a pressure cooker. Not only because each immigrant’s fate eventually will be decided here, but because judges complain their jobs have never been busier or more politicized. There’s a backlog of almost 900,000 cases, according to TRAC. The Justice Department, which oversees the immigration court system, established a quota for judges to complete 700 cases per year, an especially high hurdle in New York City, according to a WNYC analysis, because it’s the nation’s busiest immigration court. Meanwhile, the judges have new constraints in their ability to grant asylum because former Attorney General Jeff Sessions decided certain cases are not eligible. Judges are now granting asylum less often — even in New York, where immigrants historically had an easier time winning. Many judges and lawyers believe these actions show how the immigration court is becoming a vehicle for President Trump’s immigration agenda.
In a city where about 40 percent of residents were born abroad, New Yorkers have passionate views on immigration. Yet, few get to see where immigrants learn an often life-or-death decision. Trials are closed to the public, and sitting judges are not allowed to speak to the media. WNYC spent months in the main immigration court at Federal Plaza observing hearings to see how judges are handling new pressures, and how they interact with immigrants and lawyers (most of whom wanted to remain anonymous because they don’t want to hurt their cases). We focused on new judges who have taken the bench since Trump became president.
Here is what we learned.
Judges Who Worked for ICE or the Justice Department
Judges Lena Golovnin, Maria Lurye, Lisa Ling and Jem Sponzo.
(Jane Rosenberg for WNYC)
Eighteen judges in New York City started since Trump took office — almost half of all immigration judges here. Those new hires are under probation their first two years, putting them under extra pressure to meet priorities set by the Justice Department. Eight judges were lawyers at Immigration and Customs Enforcementand another had a similar role at the Justice Department. Their old jobs were to make the government’s case for deporting immigrants. Now, they’re supposed to be neutral adjudicators.
Lena Golovnin worked for ICE before starting as a judge in August 2018. From the bench, she speaks briskly and is very polite when handling 50-100 procedural hearings in a morning, typical for New York judges. Judges also schedule trial dates during these hearings but the backlog is so long, some won’t happen until 2023.
During a visit to her courtroom in December, Golovnin was stern with an attorney whose 16-year-old client didn’t provide school records to excuse himself from court that day. Minors don’t have to come to court if they’re enrolled in school, but proof is needed. “I’m not happy,” Golovnin said, noting the boy could have asked his school to fax the records to court.
The boy’s lawyer asked for an extra day to provide the records, but the government trial attorney objected. Golovnin then ordered the boy removed in absentia. This did not mean he’d be immediately deported because his lawyer could apply to reopen the case. But several attorneys and former judges said this was harsh, and that a more seasoned judge would have given the lawyer and client an extra day.
Some immigration lawyers worry too many judges come from ICE, but they acknowledge that experience doesn’t automatically bias them against immigrants. One lawyer called Golovnin a “delightful person” who should be a good judge. The Justice Department had a history long before Trump of hiring ICE attorneys as judges because of their immigration trial experience.
“I would much rather have a trial attorney as a judge,” said Stan Weber, a former ICE attorney who is now an immigration lawyer in Brooklyn. “I know that personally,” he said, adding that of the former ICE trial attorneys on the bench, “many of them I helped train.”
It’s difficult to measure which judges are more favorable to immigrants, but one factor is how often they grant asylum. This data is collected by TRAC and updated once a year. Not all new judges had completed enough cases to measure, but others did.
Judge Jem Sponzo came from the Justice Department’s Office of Immigration Litigation. She was appointed at the end of the Obama administration and took the bench in 2017. TRAC calculated she grants asylum about 69 percent of the time — a little lower than average for New York City’s court, which was more than 80 percent before Trump took office. Another judge, Paula Donnolo, had a grant rate of 80 percent. She left suddenly in March before her two-year probation period ended. Neither the Justice Department, Donnolo nor her union would comment.
Judges Donald Thompson, Michael McFarland, Cynthia Gordon and James McCarthy all used to work for ICE.
(Jane Rosenberg for WNYC)
Judge James McCarthy started in July 2017 and his asylum grant rate is 36 percent. McCarthy can seem gruff and no nonsense but he has a hearty laugh. In December, one attorney had a complicated case involving two teenage brothers in foster care, neither of whom came to court. When McCarthy gave the boys another court date, the government’s lawyer objected to granting them extra time without a prior discussion. The judge ignored this objection, adding “it’s in the best interest of the children” for them to get another day in court.
He also pushed back at a government lawyer’s line of questioning during an African man’s deportation trial. The wife testified that her husband had become more mature since committing minor crimes in his youth plus a felony conviction for robbery. The government lawyer asked her, “Have you ever heard the expression ‘talk is cheap’?” Judge McCarthy reproached her with, “that’s not a question.”
According to TRAC, Judge Donald Thompson granted asylum to 75 percent of immigrants in the last year. Not surprisingly, immigration lawyers call him “a wonderful judge.” One attorney in Thompson’s courtroom was representing a Nigerian woman seeking asylum, because she claimed to be a victim of female genital mutilation. She was given a trial date in May 2021. When the attorney expressed a desire to go sooner, Thompson found a date in September.
Taramatee Nohire came to Judge Lisa Ling’s court one day in December. She’s seeking asylum because she claims she’ll be persecuted in her native Trinidad for being a Kali worshipper. “I was a bit nervous,” she said, about going to immigration court. She was still collecting documents that are hard to obtain. “That also made me have anxiety,” she added. Her attorney, Pertinderjit Hora, was glad when Ling scheduled the trial for November, giving her more time to prepare the case. She expected the newly-minted judge to be scheduling cases even sooner.
In trials, judges have to listen to hours of testimony by immigrants and their witnesses — often with the help of a translator. During one asylum trial, Judge Cynthia Gordon asked many detailed questions of a Central American woman who claimed she was a victim of domestic abuse. The woman’s attorney said the judge’s questions made it feel like there were two trial attorneys in the room.
Another judge who formerly worked for ICE, Susan Beschta, started as a punk rocker before becoming a lawyer. She was hired last fall and died this month.
Judges Who Used to Represent Immigrants
Judges Howard Hom, Maria Navarro and Charles Conroy.
(Jane Rosenberg for WNYC)
Although the Department of Justice selects many ICE attorneys as judges, it also chooses lawyers who have represented immigrants, as well as those who have worked in various government agencies.
Judge Charles Conroy worked for the Legal Aid Society and was an immigration lawyer in private practice. He wrote a play called “Removal” that was performed at the Manhattan Repertory Theatre in 2015. It was described as a legal drama on its website.
“Two immigrants find themselves caught up in America’s deportation system — a Haitian escaping the torture he suffered back home at the hands of his government and a mentally ill Cambodian brought to the U.S. as a young child decades ago. Their attorney, Jennifer Coral, fights to keep them both in the U.S., but their common struggle opens old wounds and exposes a deep political and cultural rift in America.”
Immigration lawyers expected Conroy would often rule in their favor. However, since taking the bench in 2017, TRAC calculated that he denied asylum about half the time.
In court, Conroy seemed focused on moving cases as expeditiously as possible. He spoke quickly and rarely looked up from his desk. He reminded each lawyer which documents they needed to take before they leave. One lawyer said, “He will not bend at all accepting documents that are late.”
But another immigration lawyer called him, “a nearly perfect judge. Impartial, smart, efficient and knows the law.”
Many lawyers said they have a good shot with Judge Maria Navarro, who also worked for the Legal Aid Society. She has an asylum grant rate of 85.5 percent.
Another new judge, Howard Hom, worked as an immigration attorney. But he was also an administrative law judge for California and a trial attorney with the former Immigration and Naturalization Service.
Judges With No Immigration Trial Experience
Judges Samuel Factor, Oshea Spencer and Brian Palmer.
(Jane Rosenberg for WNYC)
Last November, the Justice Department issued a memo requiring judges to expedite family cases and complete their trials within a year or less. Most appear to be families from Central America who crossed the border in the past year. Their cases are often assigned to new judges who have more room on their calendars. Some of these judges had no prior immigration experience.
Judge Oshea Denise Spencer was an attorney with the Public Utility Commission of Texas before becoming an immigration judge last October. She was assigned many of the family unit cases the Justice Department wants completed quickly. In mid-December, she told one attorney representing a Honduran mother and son that she wanted to move their asylum trial from May to March. The attorney objected because she’s juggling so many cases at her busy nonprofit. “It would be a violation of due process,” she said. Spencer let the attorney keep her original date.
Judge Samuel Factor was an administrative law judge with New York State Office of Temporary and Disability Assistance before becoming an immigration judge in October, 2018. By December, he was so busy he was scheduling trials in August 2020. “Give me 15 minutes we’ll be in 2021,” he joked to an attorney. He then apologized to another attorney for needing to schedule a trial in 2021. But in a family case involving a woman and child from Guatemala, he scheduled the trial much sooner, in October.
Judge Brian Palmer was previously an attorney, judge and commanding officer in the U.S. Marine Corps before taking the bench last October. Some immigration lawyers wonder why he’d want the job.
“On the Brink of Collapse?”
This year, the American Bar Association declared the U.S. immigration courts “on the brink of collapse.” It cited the quota system, and new rules from former Attorney General Sessions that took away judges’ ability to control their dockets. Meanwhile, the backlog grows as more migrants arrive at the border and some cases get delayed.
According to data obtained by WNYC, 14,450 hearings were adjourned in fiscal year 2018 because the judges couldn’t finish them — an increase from 9,181 from the previous year. More than 1,700 of those adjournments were in New York City. And there aren’t enough translators. More than 5,300 hearings were adjourned in fiscal year 2018 because no interpreter was scheduled, an increase from 3,787 the previous year.
The Executive Office for Immigration Review, a division of the Justice Department which runs the nation’s immigration courts, said those numbers aren’t even half of 1 percent of all 1.3 million hearings that year.
Nonetheless, these problems do affect the flow of a courtroom. In December, Judge Howard Hom was scheduling cases involving Punjabi speakers later than others because he couldn’t get a translator until September. Another judge, Maria Lurye, decided to group her 47 cases on a morning in March to make them move more efficiently. She started by calling all attorneys whose clients were seeking asylum.
“Are all of your clients here today?” Lurye asked. “Yes,” eight lawyers replied in unison. She then gave them different trial dates in April 2022, without taking individual pleadings. After that, she formed a group for other cases that were similar. The judge was able to see about 17 cases in 90 minutes, slightly faster than without the groupings.
Ashley Tabaddor, president of the National Association of Immigration Judges, described her members as being under a huge strain. “We are absolutely seeing some of the lowest morale and anxiety that’s completely unprecedented,” she said. The union leader also said the quotas have only made things worse because they risk sacrificing due process for expediency. Judges now see dashboards on their computers showing in red, yellow and green, indicating if they’re on target for their case completion goals.
Two examples of the dashboards the Justice Department uses to monitor an immigration judge’s case completion rate.
(Courtesy of National Association of Immigration Judges)
In a congressional subcommittee hearing, Executive Office for Immigration Review Director James McHenry defended the quotas. He said immigration judges completed more cases in Fiscal Year 2018 than in any year since 2011. He called this a “direct refutation” of critics who claim judges lack the integrity and competence “to resolve cases in both a timely and impartial manner.”
But because of the ways in which President Trump’s Justice Department is shaping the immigration court, one New York City immigration lawyer, Jake LaRaus, said it is “at best a kangaroo court.”
Former New York immigration judge Jeffrey Chase said, “All moves made by this administration must be viewed as pieces in a puzzle designed to erode the independence of immigration judges in order to allow the administration to better control case outcomes to conform with its political goals.”
An empty judge’s chair in New York City’s immigration court.
(Jane Rosenberg for WNYC)
The judges’ union wants to take the immigration court out of the Executive Branch and make it independent, like tax and bankruptcy courts. These are called Article Icourts. Congress would have to approve this change.
The Federal Bar Association has drafted model legislation for an Article I court. Judges would have fixed terms, and they’d be able to hold lawyers in contempt. Though this won’t solve the backlog problem, many academics and immigration lawyers support the plan because it would free the immigration court from the Justice Department’s bureaucracy and politics.
The Trump administration opposes the proposal. The Executive Office for Immigration Review said no organization has studied the cost or fully explored the ramifications. It says it’s solving the court’s backlog with quotas and by hiring 200 new judges, through new positions and filling vacancies. But nationally, there are just 435 judges.
An independent Article I court won’t be an easy sell in Congress, either. Elizabeth Stevens, who helped draft the Federal Bar Association’s proposal for the immigration court and previously worked in the Justice Department, said the only hope is for supporters to focus on courtroom efficiency.
“If it becomes politicized it becomes another issue of comprehensive immigration reform,” she warned.
There’s another immigration court in downtown Manhattan, in a federal building on Varick Street. It was previously just for immigrants held in detention, but with Federal Plaza running out of room, the government opened new courtrooms at the Varick location in March.
Two new judges, Conroy and Ling, moved to Varick Street. There are also four brand new judges who started this spring. Two of them previously worked for ICE. One was an assistant district attorney in Suffolk County and the other was a domestic relations magistrate in Trumball, Ohio.
The Executive Office for Immigration Review is planning to open more courtrooms in New York this year. It would like to hire 100 more judges nationally in the next fiscal year. The judges union believes it needs hundreds more than that to manage the backlog.
Madeline Buiano & Susan Ferriss report for the Center for Public Integrity
DATA DEFIES TRUMP’S CLAIMS THAT REFUGEES AND ASYLEES BURDEN TAXPAYERS
In this May 18, 2018, photo, Majed Abdalraheem, 29, a Syrian refugee and chef with meal delivery service Foodhini, prepares Moussaka, a grilled eggplant dish, at Union Kitchen in Washington. (AP Photo/Noreen Nasir)
Researchers found that between 2005 and 2014, refugees and asylees here from 1980 on contributed $63 billion more to government revenues than they used in public services.
In this post, we’re answering a question we received from Jen: What is the economic impact of refugees in the near and long term (transition time between needing assistance and adding to the economy)?
Since the beginning of his presidency, Donald J. Trump and top advisers have portrayed refugees and asylum seekers as a risky, undesirable demographic.
In 2016, Vice President Mike Pence tried to ban the resettlement of Syrian refugees while he was Indiana’s governor. A federal appeals court blocked the attempt, finding that Pence lacked evidence supporting claims that Syrian refugees were a threat to the people of Indiana. Trump, for his part, issued an order in March 2017 with language suggesting that refugees are a fiscal burden.
The order demanded that U.S. officials produce a report “detailing the estimated long-term costs of the United States Refugee Admissions Program at the Federal, State, and local levels, along with recommendations about how to curtail those costs.”
The draft report didn’t support that assumption of burden, though.
In fact, researchers found that during the 10 years between 2005 and 2014, refugees and asylees here from 1980 on contributed $63 billion more to government revenues than they used in public services. Senior administration officials, possibly including White House aide Stephen Miller, quashed the 55-page draft and submitted a three-page report instead, The New York Timesreported. Soon after, the White House released a fact sheetselectively borrowing from the draft report by noting that the U.S. “spent more than $96 billion on programs supporting or benefitting refugees between 2005 and 2014.”
There were no references to the $63 billion more in taxes that refugees put into public coffers than the value of the services they used.
This pattern of cherry picking one side of the ledger isn’t unusual for those seeking to bolster a political argument. Trump used similar cherry-picked numbers to link immigration, in general, with American wage decline and fiscal strain during his 2016 campaign, as the Center for Public Integrity reported previously.
Before diving deeper into fiscal research on refugees, though — including what the quashed draft report found in detail — it helps to understand how refugees and asylum seekers differ. Some fiscal studies, including the study Trump ordered, scrutinize both groups. It’s also helpful to understand the size of these groups compared to the U.S. population.
HOW DOES SOMEONE GAIN REFUGEE OR ASYLEE STATUS?
Refugees are fleeing persecution or war and are admitted from abroad. To vet them, U.S. officials are dispatched to interview candidates as part of a lengthy screening process. United Nations or U.S. embassy officials refer candidates to the U.S. State Department. Refugees often seek temporary shelter in neighboring countries to escape violence and threats. Many Syrian war refugees, for example, have fled to Turkey, Lebanon and Jordan. After intensive screening, approved refugees enter the U.S. with the help of resettlement organizations and must sign promissory notes to repay the U.S. government for travel costs. About 75 percent of loans are repaid within 15 years and 64 percent within five years, according to the U.S. State Department.
Asylum seekers claiming to be fleeing violence or persecution, by contrast, can present themselves at a U.S. port of entry and request to apply for asylum, as outlined in international treaties the U.S. has signed, as well as U.S. law. The law also allows foreigners to apply for asylum after they’re already inside the United States, whether they entered originally on visas or entered illegally, with some restrictions. Immigration judges review cases to determine whether the asylum applicant’s fear meets the criteria for granting refuge. Asylum seekers have a right to retain an attorney at their expense — or seek pro bono help — but they don’t have a right to an appointed attorney in proceedings.
In 2018, even as refugee numbers surged globally, the Trump administration capped refugee admissions at 45,000. Only 22,000 were ultimately admitted, mostly from the Democratic Republic of the Congo, Burma and Ukraine. Trump used his executive power to cap refugee admissions this year to a new low, for annual caps, of no more than 30,000. In 2016, under President Barack Obama, the U.S. admitted 85,000 refugees.
Trump has also sought to deter mostly Central American migrantswho are arriving often with children at the southern border and asking for asylum.
“The United States will not be a migrant camp and it will not be a refugee holding facility … not on my watch,” Trump said last year. In April of this year, after tweeting that the “country is full,” Trump unveiled an unprecedented proposal to require that asylum seekers pay an application fee. Trump argues that changes to the asylum system are needed because he believes that the vast majority of migrants are faking or exaggerating their fears — despite U.S. State Department recognition that murder rates, gang rapes and extortion are rampant in Central America, especially the main source countries of Honduras, Guatemala and El Salvador.
Refugees and asylees are a tiny fraction of the U.S. population, so it’s hard to credibly pin major national fiscal impact on either group.
Between 2009 and April 2019, a total of 648,482 refugees were admitted to the U.S., according to U.S. Department of State refugee data. That admissions total is equivalent to about 0.2 percent of the U.S. population of 328 million. Separately, between 2007 and 2017, a total of 263,215 people were granted asylum, according to the 2017 Yearbook of Immigration Statistics. That cumulative number is equivalent to about 0.08 percent of the U.S. population.
But isn’t there a backlog of asylum requests, potentially adding more people?
Yes. As of January 2019, 325,277 asylum request cases were pending. But even if all those cases were approved (they won’t be), that number would be equivalent to 0.1 percent of the U.S. population of 328 million. Further, if you were to multiply all those asylum cases by 10 — to account for an exaggerated number of family members who could benefit — that number would add up to the equivalent of 1 percent of the U.S. population.
But can’t refugees or asylees have a noticeable fiscal impact on communities, especially if the newcomers settle in groups, as immigrants often do? Yes. Let’s see what reputable studies show.
REFUGEES COME WITH NOTHING
Randy Capps is the director of research at the Migration Policy Institute, or MPI, a nonpartisan think tank based in Washington, D.C., that’s studied how refugees with a range of language skills and education integrate over time.
“Refugees come to the U.S. with nothing,” Capps said, but they “start making economic contributions right away and they’re not living off government assistance for very long.”
A 2015 MPI refugee-integration study found that between 2009 and 2011, the proportion of refugee men working was 7 percentage points higher than among their U.S.-born counterparts. Refugee women were as likely to work as U.S.-born women. Refugees’ income increased the longer they were in the country. The median income of refugees in the U.S. for at least 20 years was $31,000 higher than the median income of refugees here for five years or less.
MPI researchers also found that refugees’ use of public benefits decreases substantially over time.
Unlike other immigrants, refugees can access public health insurance and some other forms of aid when they arrive. Between 2009 and 2011, food-stamp assistance was a relatively high 45 percent for refugees for their first five years or less, the MPI study found. But food-stamp assistance fell to 16 percent among refugees here at least 20 years. Cash aid dropped from 7 percent to 2 percent for refugees in these same respective cohorts. And reliance on public health insurance fell from 24 percent to 13 percent.
Capps and his fellow authors suggested that providing English classes and job training for refugees while they’re still in camps undergoing the long vetting process could lead to even better outcomes. Ironically, the report also suggests, refugees’ high rate of employment in the U.S. could make it difficult for many to find the time to pursue more education to upgrade skills and earning potential.
Even so, as the Center reported in 2017, refugees are readily sliding into jobs in areas where labor is in short supply. Refugees from various countries are filling jobs at a Chobani facility in Twin Falls, Idaho, the world’s largest yogurt factory. And newly arrived refugees from rural areas of the Democratic Republic of the Congo and Asia are finding work at dairy farms.
In 2017, a draft of the refugee fiscal report that Trump had ordered was leaked to The New York Times, which posted it. The report was produced by the U.S. Department of Health and Human Services, whose Office of Refugee Resettlement is involved in refugee arrivals and initial integration. Research looked at both refugees and asylees.
Researchers looked at local, state and federal expenditures on refugees — as well as refugees’ tax contributions to those government coffers over the 10 years between 2005 and 2014.
The study found that 8 percent of refugees received Social Security or Social Security Disability benefits compared to 15 percent of the U.S. population. About 12 percent of refugees relied on Medicare benefits compared to 15 percent of the U.S. population.
On the other hand, 21 percent of refugees used SNAP, or food stamps, compared to 15 percent of the U.S. population. But only about 2.3 percent of refugees received TANF benefits, or cash aid, close to the same percentage as the U.S. population generally.
Overall, during the 10-year period, refugees and their non-refugee family members received $326 billion in government benefits and services, 60 percent from the federal government and 40 percent from state and local government. K-12 education accounted for 11 percent of expenditures on refugees. But that K-12 spending was only 0.4 percent of spending on K-12 nationally.
In the end, because of taxes they paid, refugees and their family members contributed more than $343 billion in revenue to federal, state and local coffers. On balance, refugees contributed $63 billion more than they received in benefits from various programs.
“In general,” researchers wrote, “after 10 years of residence those who entered the U.S. as refugees were similar to the U.S. population in terms of income and employment.”
The HHS draft also referenced research produced in various regions.
A 2012 analysis of the Cleveland, Ohio, area credited refugees with the creation of 650 jobs and $48 million worth of economic impact. A 2015 study of the Columbus, Ohio, area found that about 16,600 refugees supported more than 21,200 jobs and added $1.6 billion to the local economy.
Randy Capps of the Migration Policy Institute cautioned against putting too much faith in fiscal studies that zero in on costs alone. For example, the Federation for American Immigration Reform, or FAIR, a group that advocates slashing legal immigration, published a study in 2018 focusing on the first five years of refugee settlement and arguing that “the American taxpayer is being asked to feed, clothe and shelter” people with “few marketable job skills.”
In 2017, the Center for Public Integrity reported that U.S Department of Homeland Security staff were discussing adding an assessment of a refugee applicant’s “skills” to criteria that’s part of the foundation for the vetting process. The skills idea, confirmed by a Homeland Security spokesperson, upset U.S. refugee officers who screen applicants who’ve fled the trauma of war and persecution. It hasn’t gone anywhere.
“The [current] litmus test is: Does the person have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political
Adding a skills test would mark a profound change, Knowles said, for U.S. criteria developed in the wake of World War II, a time when the U.S. and other countries turned away some desperate Jewish refugees.
A number of things are absolutely clear: 1) refugees and asylees are a huge benefit to the United States from any legitimate perspective; 2) we could easily absorb everyone applying for asylum status right now; 3) there is no “invasion;” 4) the country is not “full;” 5) Trump, Pence, Miller, Cotton, Perdue, and the rest of their “White Nationalist Gang” are liars.