"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
One is the “practical wisdom” that was
Kronman’s focus. That’s a big topic, of course, but
part of it involves recognition that the function of
the legal system is ultimately to provide answers to
very practical questions.
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PWS
05-31-25
By Rebecca Brenner Graham
Citadel Press 2025
Reviewed by Paul Wickham Schmidt[1] for immigrationcourtside.com
As someone who has spent more than five decades working on immigration issues, many of them involving refugees and those seeking asylum, in and out of Government, I found Dear Miss Perkins by Rebecca Brenner Graham interesting and in many ways moving.
True, the book suffered from some editorial and organizational difficulties: more like a string of essays than a unified volume with a thesis or overall theme; lots of repetition; some awkward sentence structure; and lack of a comprehensive index were among the most noticeable and occasionally annoying. Full disclosure: I mostly listened to the audiobook while driving from the D.C. area to Kansas City, Missouri to participate as a faculty member in the 2025 Immigration Court Trial Litigation College sponsored by Pen & Sword. The “road trip audio experience” might have minimized some of the book’s weakness as noted above.
I related to Perkins’s struggle to achieve “good government” and humane, sensible, practical administration of the immigration laws, as well as her frustrations on being thwarted, mirrored by my own Government experiences. Like her, my efforts at institutionalizing best practices and interpretations were ultimately largely unsuccessful. Yet, like her, I was able to solve “real life” (often life or death) problems, save lives, teach and inspire others, and get some degree of personal satisfaction in achieving things that helped others and overall benefitted our nation.
Here, in my own somewhat random order, are my major “takeaways” from the book, most of which remain as troublesome today as they did in Perkins’s era.
1) The prevalence of antisemitism in Government and society, a continuing issue.
2) The persistence of racism, misogyny (frequently directed at Perkins herself), bigotry, and false economic arguments being used against immigrants.
3) The use of “legal fictions” in place of common sense in immigration legal opinions (e.g., the “charge bond controversy”).
4) Focusing more on what particular immigrants can do for the U.S., than on the humanity, needs, situation, and potential of the immigrants themselves.
5) Lumping Nazism, socialism, and communism together as “totalitarianism.”
6) Minimizing the culpability of the German people for Nazism and the holocaust.
7) The extraordinarily poor performance of Congress in protecting refugees and other immigrants in a nation of immigrants.
8) The subservience of legal, Constitutional, and human rights of immigrants to domestic political considerations.
9) The enduring, and often toxic, nature of “turf battles” and arcane bureaucratic distinctions in overruling “good government,” efficiency, and practicality in the immigration bureaucracy.
10) Who you know often trumping fair treatment in individual cases.
11) Creative, progressive actions within the bureaucracy, such as those championed by Perkins, can save individual lives even if they can not systematically save everyone who should be saved.
12) The remarkable lack of empathy for child migration and family separation.
13) “Sanitization” of the saga of World War II (e.g., “Hogan’s Heroes Syndrome”), and diffusing or watering down the responsibility for the holocaust, and the other dehumanizing effects.
14) Intentionally overplaying immigration, particularly by refugees and other forced migrants, as primarily a national security/law enforcement concern rather than as a practical humanitarian response to recurring situations (e.g., the transfer of immigration responsibility from DOL to DOJ and eventually to DHS).
My parting thought is that Perkins’s tale confirmed what many of us already knew. It’s hard to survive as a progressive in Government even with friends in high places.
In an age of human progress in technology, I find it disturbing and puzzling indeed that regression has come to dominate immigration policy and that so many of the deadly and tragic mistakes, misconceptions, and lack of courage that faced Perkins remain very much with us today. As caring and engaged humans, we must strive for just solutions for the sake of future generations. Despite the current, largely unrelentingly negative rhetoric, immigration is integral to our country, is here to stay, and will continue to shape our nation and our world.
[1] *Retired U.S. Immigration Judge, retired adjunct law professor, former Chairman, Board of Immigration Appeals, former Deputy General Counsel and Acting General Counsel, “Legacy” Immigration & Naturalization Service, former law partner, current member of the Round Table of Former Immigration Judges. These are my views and do not represent the views of any organization or entity with which I am currently associated, have been associated in the past, or might become associated with in the future.
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law
In times like these, we should not depend solely on the courts. There are many of us here in the U.S. who believe that the world’s refugee framework — developed in response to the profound moral failure of turning back the St. Louis — is worth fighting for. We need to take a vocal stand. The clear message must be that those fleeing persecution should never be returned to persecution.
If we take such a stand, we will be in the good company of those who survived the Holocaust and continue to speak out for the rights of all refugees.
It’s been a busy time for Karen. She writes in Linkedin:
I was very honored to be chosen by the 2025 graduates of UC Law, San Francisco, to be their faculty speaker. Our students truly inspire me, and make me hopeful for the future.
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Thanks for speaking out so forcefully and articulately, my friend! Sticking to and standing up for values and the rule of law is important, particularly in an age of scofflaws, myth spreaders, and dehumanizers! One need look only as far as the St. Louis incident that you cite to see how even with the benefit of historical knowledge and fact, some among us stubbornly stick to lies, myths, and xenophobia with tragic and deadly results.
PWS
05-22-25
[T]he Board in Matter of A-A-R- impermissibly reinterpreted the evidence in a very selective way in order to reach a different conclusion than that reached by the trier of fact. As the Fourth Circuit recently held in reversing the Board, “In conducting clear error review, the BIA may not reweigh evidence or ‘substitute[ ] its own judgment for that of the IJ.’”
For all of the above reasons, a prediction that A-A-R- will not withstand circuit court scrutiny would not be clearly erroneous.
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Thanks, Jeffrey, my friend and colleague, for your scholarly exposition of the BIA’s result-oriented sophistry. It’s no coincidence that in erroneously reversing a solid CAT grant to El Salvador the BIA chose, as it seldom does in other than a negative context, to reject a very viable form of mandatory protection, to a country currently in the news, which is available without regard to criminal record, alleged gang membership, and /or discretionary factors.
By choosing to designate it as a rare precedent, the “captive” BIA appears to be fulfilling the political demands of the Trump Administration to be able to argue, contrary to the Supremes, that no fair hearings are necessary in similar cases of illegal removals because an ultimate negative result is foreordained by precedent (even though that is clearly wrong, even under A-A-R-).
Administration lawyers have even gone to the extraordinary extent of trying to— so far unsuccessfully — submit and argue that bogus “predictive denials” — basically the DHS’s position without any opportunity to challenge — can be relied upon by a reviewing Article III court to deny the return of individuals wrongfully deported. What a complete crock and insult to the rule of law, as well as to the judges to which these disingenuous arguments are addressed! 🤬🤮
While “third country removals” are possible for those granted withholding of removal or deferral of removal under the CAT, proper legal procedure and due process require that 1) the DHS seek to reopen the case for designation of a new country of removal (unless such alternative country was previously designated and named in the Immigraton Judge’s order), and 2) the respondent be given a reasonable opportunity to raise any protection claims relating to that country.
PWS
05-21-25
“These all have the same objective, which is to strip immigrants of their rights in court,” said former immigration judge Sarah Burr. “The idea that this would somehow speed up the process is ridiculous. It’s only going to slow it down.”
Burr said that forcing someone to appear in court without an attorney makes it a judge’s responsibility to ensure someone understands what is happening and can make decisions in their case. “That takes a long time,” she said. “You’re being put in an awkward position. You almost become a party instead of the judge.”
https://www.themarshallproject.org/2025/05/19/lawyers-immigrants-mental-health-detention
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Another reprehensible elimination of working, cost-effective programs that are essential to providing due process to America’s most vulnerable.
PWS
05-20-25
Disappeared: Pursuing Legal Return of the Wrongfully Deported Against the Political Backdrop of “Securitization.”
by Dr. Alicia Triche
Featured authority:
Noem v. Abrego Garcia, 604 U.S. ___, 145 S.Ct. 1017 (2025)
J.A.V. v. Trump, No. 1:25-cv-072, Order and Op. (S.D. Tex. May 1, 2025)
The legal authority to order return of a wrongfully deported individual is largely rooted in the concept of “nunc pro tunc,” an equitable remedy which allows that a “judgment or the decree may be entered retrospectively, as of a time when it should or might have been entered up.”[1] As the Second Circuit held in Edwards v. INS, nunc pro tunc authority is “a means of rectifying error” that “has a long and distinguished history in the field of immigration law.”[2] In fact, said authority is explicitly invoked in the very first headnote, in the very first reported immigration decision. 85 years ago, in Matter of L, the Attorney General invoked equitable power to back-date permission to enter for a trouble-making, but (at least according to the A.G.) ultimately deserving Yugoslavian. 1 I&N 1 (A.G. 1940).
Fast-forwarding into the modern era, nunc pro tunc authority has proved needed to address wrongful removals in numerous contexts. Since 1996, when IIRIRA[3] established that filing a petition for review “does not stay the removal of an alien pending the court’s decision…unless the court orders otherwise,”[4] removals that are later deemed wrongful have occurred at all stages of Court of Appeals proceedings. In such instances, including those where removal happened before a meritorious Stay was ultimately granted, attorneys have successfully sought the return of wrongfully deported petitioners.[5] Now, of course, the occurrence of illegal deportation has expanded outside of the context of individual appeals, catapulting the concept of its judicial correction into the mainstream of public consciousness.
When a court orders the government to attempt the return of a wrongfully deported individual during pending legal proceedings, it effectively rules that a stay of removal is merited nunc pro tunc; and, then, it simultaneously invokes an inherent equitable authority to restore the status quo. As the Supreme Court observed in 1996, in Peacock v. Thomas,[6] a federal court must have “inherent power to enforce its judgments,” lest its abilities become “entirely inadequate to the purposes for which it was conferred by the Constitution.” Although its precise contours are still fuzzy—and I must defer here to a braver soul to delve into the whole “facilitate” v/s “effectuate” arena—the Supreme Court has now definitively laid to rest any doubt that a Court has inherent authority to order tangible redress against wrongful deportation. In Noem v. Abrego Garcia, 604 U.S. ___, 145 S.Ct. 1017 (2025), the Court held that, because “removal to El Salvador” was “illegal,” the District Court “properly” required the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to “ensure that his case is handled as it would have been had he not been improperly sent….”[7]
It now being crystal clear that courts possess power to order attempted return, it will be up to litigators to ask them to use it. May 6, 2025, Law360 reported that a Baltimore federal judge had rejected the government’s request to vacate her ruling ordering the return of a 20-year-old Venezuelan asylum-seeker who had been sent to CECOT under the Alien Enemies Act, despite being a member of a class action settlement agreement protecting unaccompanied minors.[8] In the opposite direction, on March 27, 2025, in an unpublished order, the Fifth Circuit Court of Appeals denied, without comment, a motion for a retroactive stay and order of return. The request had been made by a Central American man who was initially granted Torture Convention relief by a Louisiana Immigration Judge, but was deported before he could apply for a Stay of Removal.[9]
Of course, these are but two small anecdotes amidst a flowing sea of removals. This leads me to the point that the legal challenges I have referenced above are occurring in a highly political context: attempted “securitization.” Securitization is an international relations concept developed by a group sometimes referred to as the Copenhagen School. Under securitization, it is not the objective level of danger in a purported threat (in this case, “illegal immigrants”—or, really, just “immigrants”) that takes it into the discursive realm national security. Instead, it is the nature of the discourse that surrounds it. “The issue becomes a security issue”, the authors explain, “not necessarily because a real existential threat exists but because the issue is presented as such a threat.”[10]
Again, this process, through which a “speech act” creates a security issue, is referred to as “securitization”.[11] It a method through which government actors move an issue out of the frame of “normal politics”[12] in order to claim extraordinary powers. By invoking “security,” says Barry Buzan, “a state representative declares an emergency condition, thus claiming a right to use whatever means are necessary to block a threatening development.”[13] But securitization is only successful if it is accepted by a large enough portion of its audience. Since it is a speech act, it can also be resisted by speech—and, from the point of view of immigration litigators, that can mean continuing to assert the rule of law in court, including the presentation of legal arguments for the return of wrongfully deported persons.
When viewed through the illuminating lens of securitization, Judge Fernando Rodriguez, Jr.’s order in J.A.V. v. Trump is especially remarkable.[14] Throughout history, US courts have been exceedingly reticent to delve into the substantive boundaries of security-related issues, even where it involves purely legal questions. It is thus remarkable that a conservative judge, sitting in Brownsville, has deliberated the substantive definitions of “invasion” and “predatory incursion,” and held that the Executive has utilized the incorrect legal standard to invoke the Alien Enemies Act.[15] It is truly a Nixon-goes-to-China moment, and it is a reflection that securitization is not automatically successful just because it is attempted. This is what all proponents of the rule of law, including immigration litigators, must keep in mind, when facing a system under siege, in this extraordinary era.
[1] Mitchell v. Overman, 103 U.S. 62, 64–65 (1881).
[2] Edwards v. INS, 393 F.3d 299, 308–309 (2nd Cir. 2004).
[3] Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (1996).
[4] 8 U.S.C.A. § 1252(b)(3)(B) (Westlaw 2025.)
[5] See, e.g., Herrera-Meza v. Sessions, No. 18-70117, Dkt. 17 (9th Cir. Sept. 18, 2018) (granting a late motion to reconsider a judicial stay denial and ordering individual’s return to restore status prior to deportation); W.G.A. v. Sessions, No. 16-4193, Dkt. 65 (7th Cir. Mar. 19, 2018) (granting stay that becomes effective on “reentry to the United States pending resolution of [the] petition for review”). The author thanks Trina Realmuto at the National Immigration Litigation Alliance for calling her attention to these orders.
[6] 516 U.S. 349, 356 (1996); see also Crowe v. Smith, 151 F.3d 217, 226 (5th Cir. 1998), citing Chambers v. NASCO, Inc., 501 U.S. 32, 42 (1991) (recognizing the existence of “implied power squeezed from the need to make the court function”; Nken v. Holder, 556 U.S. 418, 426 (2009) (“An appellate court’s power to hold an order in abeyance while it assesses the legality of the order has been described as ‘inherent,’ preserved in the grant of authority to federal courts to ‘issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law”.)
[7] 145 S.Ct. at 1018.
[8] Jared Foretek, Judge Won’t Reverse Order to Bring Back Asylum-Seeker (Law 360 May 6, 2025).
[9] (Order on file with the author; further details redacted for confidentiality).
[10] Barry Buzan, Ole Wæver and Jaap de Wilde, Security: A New Framework for Analysis (Lynne Reiner Publishers Boulder CO 1998) 24.
[11] See, e.g., Buzan Wæver and de Wilde 25.
[12] Buzan Wæver and de Wilde 24 (international quotations omitted).
[13] Buzan, Wæver and de Wilde 21 (citation omitted).
[14] J.A.V. v. Trump, No. 1:25-cv-072, Order and Op. (S.D. Tex. May 1, 2025)
[15] Id. at 30–31.
