"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.
Ann is active in evaluation circles nationally. Her evaluation practice and podcast center on Georgia and its community-based social service organizations.
On the pod we make the following points:
(1) Advocacy is an important tactic to achieve social change goals.
(2) Strong advocacy is led by affected communities. Allies in the nonprofit and philanthropy sectors provide important support to community-led change.
(3) Elected officials need and want input from service providers in their districts. Whether you have lots of time for advocacy or only a very limited amount of time, your input can make a difference.
(4) Help is available for community organizations that want to investigate advocacy but are not sure what they are legally permitted to do. Bolder Advocacy, a program of Alliance for Justice, provides technical assistance and training.
Thanks, Kathleen, my friend, and Ann for putting this important guidance together and making it accessible!
Also, a special “shout out” to Bolder Advocacy at Alliance for Justice for their expertise in helping 501(c)(3) orgs “color within the lines” especially during these challenging times.
As I constantly preach, expertise is important, even if Democrats too often “don’t get that” when dealing with human rights, and other social and racial justice issues.
In addition to the candidates put forward by Mr. Feingold’s group after a nationwide effort, another coalition of organizations has provided the transition with over 100 names of candidates developed over the past several months.
“The process started earlier so we would be ready,” said Nan Aron, the president of the Alliance for Justice, which in cooperation with nearly three dozen other groups has given the Biden team a list of more than 100 potential nominees. “We are pushing hard for them to make judges a priority.”
. . . .
The progressives say that Democrats must use whatever leverage they can to press their nominees.
“Our view is the administration should push to make judges a critical part of the conversation,” Ms. Aron said. “The Democrats will need to fight for the judges they want.”
Though acknowledging winning confirmations will be difficult — certainly compared with the free hand Republicans have had when controlling both the White House and the Senate — Mr. Feingold said he was optimistic that Mr. Biden, using the available political tools and with strong progressive support, could get his picks on to the courts.
“I see opportunity here,” Mr. Feingold said.
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Thanks Nan! Read the rest of the article at the above link!
I just hope that this time around, unlike the Obama Administration, the Biden-Harris Team focuses on what former Senator Russ Feingold of the American Constitution Society might call a “golden opportunity” for broadening and improving the Federal Judiciary.
That’s, of course, the “judiciary” at the Executive Office for Immigration Review (“EOIR”) which operates (and I use this term loosely, given the disgraceful, deadly dysfunction sowed by the outgoing regime) entirely within the Executive Branch at the DOJ. No need to get Mitch McConnell’s sign off on these judges! (We ultimately need a fully independent Article Immigration Court, which will take legislation.)
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
The mess at EOIR needs immediate attention and aggressive due process reforms. Thisis no “small opportunity.” There are more than 500 Immigration Judgeships and another two dozen critically important Appellate Judgeships at the Board of Immigration Appeals (“BIA”) at stake here.
Together, this “under the radar administrative judiciary” exercises essentially life or death authority over millions of individuals and affects the lives and futures of millions more American families, employers, and communities from coast to coast. While most of the BIA’s decisions are reviewable in the Circuit Courts of Appeals, the BIA’s nationwide authority to set precedents and policies that determine not only the future of millions of humans, but also the conduct of DHS (which has been highly problematic) gives it power that in some ways exceeds that of any Federal Court short of the Supremes.
Sadly, the independence, expertise, and due process performance ofEOIR has deteriorated steadily over the past three Administrations before going into a “death spiral” under the Trump/Miller/Sessions/Barr White Nationalist kakistocracy.
The exceptionally well qualified judicial candidates and competent legal administrators to fix the EOIR disaster are out here in the New Due Process Army. There is no area of judging that combines intellectual challenge, applied due process, human relations, practical problem solving, historical perspectives, ethical norms, and fundamental human values the way that the Immigration Court experience does!
A new, due process oriented, expert, diverse, representative immigration judiciary at EOIR will not only be a model for best practices for all levels of the Federal Judiciary, but will also provide an exceptional source of experienced candidates for the Article III Judiciary and future public policy positions (the massive failures in these areas over the past four years are an example of why we must do better if we want to save lives, promote equal justice for all, and enhance our democracy). As I always tell my Georgetown Law students, if you can win in Immigration Court, everything else you do in law will be a “piece of cake!”
This is more than just “an opportunity.” Human lives are at stake! National values and the future of the rule of law in America hang in the balance! This isn’t “optional,” nor is it a “back burner” issue! Reforming the Immigration Judiciary is a national imperative that we must insist upon!
Hey hey, ho ho, the EOIR Clown Show 🤡 has got to go! Let the Biden-Harris Team know!
The consensusamong legaland politicalanalysts is that Judge Amy Coney Barrett, whom Trump placed on a federal appeals court in 2017, is the leading candidate to fill Ginsburg’s seat. Barrett gained fame during her confirmation hearing after Democratic Sen. Dianne Feinstein made inappropriate comments about the judge’s devout Catholic faith. She is a hardcore conservative, but that description doesn’t quite capture how radically her jurisprudence differs from Ginsburg’s. The justice viewed the Bill of Rights and civil rights acts as generous guarantees of human dignity that must be read expansively to achieve their purpose. By contrast, Barrett’s view of the law is fundamentally cruel. During her three years on the 7th Circuit Court of Appeals, Barrett has either written or joined a remarkable number of opinions that harm unpopular and powerless individuals who rely on the judiciary to safeguard their rights.
Faced with two plausible readings of a law, fact, or precedent, Barrett always seems to choose the harsher, stingier interpretation. Can job applicants sue employers whose policies have a disproportionately deleterious impact on older people? Barrett said no. Should courts halt the deportation of an immigrant who faced torture at home? Barrett said no. Should they protect refugees denied asylum on the basis of xenophobic prejudice? Barrett said no. Should they shield prisoners from unjustified violence by correctional officers? Barrett said no. Should minors be allowed to terminate a pregnancy without telling their parents if a judge has found that they’re mature enough to make the decision? Barrett said no. Should women be permitted to obtain an abortion upon discovering a severe fetal abnormality? Barrett said no.
There is no question that, if confirmed, Barrett would cast the fifth vote to either hollow out Roe v. Wade or overturn it altogether. Similarly, there is no doubt that Barrett would dramatically expand the Second Amendment, invalidating gun control measures around the country. It’s quite possible, perhaps even likely, that within a year of her confirmation, Americans will be forbidden from terminating a pregnancy in 21 states—but permitted to purchase assault weapons and carry firearms in public in every state.
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Read the rest of Mark’s article at the link.
Judge Barrett sounds like someone who could have trained in anti-humanitarian, anti-social, anti-due-process, anti-immigrant judging by Billy the Bigot on the BIA. She certainly fits the model of an unqualified far right attivist.
And what of the other leading contender, Judge Barbara Lagoa of the 11th Circuit. In addition to being a reliable right-wing zealot (she voted to uphold the GOP anti-democracy scheme to overrule the people of Florida and disenfranchise former convicts), she is a Cuban American from Florida, a state where Trump and Biden are running neck and neck. Anybody who thinks today’s Court isn’t “politicized” has been living under a rock!
Daniel Goldberg, Legal Director of the Alliance for Justice (“AFJ”) tells us about everything we need to know about Lagoa:
Daniel Goldberg, legal director of the liberal Alliance for Justice, was critical of Lagoa’s record, saying she is a judge “who has showed contempt for our democracy.” Goldberg said he has “no doubt that she will meet Donald Trump’s litmus test” for a Supreme Court nominee and support his pledge to overturn Roe and the Affordable Care Act.
If you don’t want more unqualified judges with cruel, perverted, and unjust visions of America, and contempt for democracy and the humanity of “the other” in society to be deciding your future and the future of your children and grandchildren, then you had better get out the vote for Biden. Otherwise, your future is likely to look like America’s Jim Crow past!
But Democrats all but ignored the Supreme Court in their four-day convention earlier this month, even after the party spent Trump’s first term reckoning with the consequences of Republicans confirming two justices, including a reliably conservative justice who replaced the court’s swing vote.
The contrast worries liberal activists who see it as further evidence that the Democratic Party isn’t paying enough attention to an area where conservatives have made big inroads in recent years: control of the courts.
“The fact that Democrats spent so little to no time discussing the federal bench failed to take into account that their critically important goals for the future will be challenged in the courts,” said Nan Aron, the president of the liberal judicial advocacy group Alliance for Justice.
She added: “It’s a major misstep, given the fact that these 200 judges will make it very difficult, if not impossible in many cases, for the Democrats to accomplish their worthy goals going forward.”
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Read the full article at the link,
Thanks, Nan, for speaking out! I’ve always been astounded by the Dems’ failure to recognize the importance of getting demonstrated advocates for due process, fundamental fairness, human rights, equal justice under law, and best practices on the Federal Bench.
Heck, look at the Dems beyond disastrous and just plain incompetent approach to the Immigration Bench in the Obama Administration — an administrative court controlled entirely by the Attorney General. Can’t blame Mitch and the GOP for:
Ridiculously convoluted and entirely unnecessary 2-year hiring process (under former Director Anthony C. Moscato, the Clinton Administration could sometimes do it in a fraction of that time with better, or at least no worse, results);
Eschewing progressive judicial candidates, including well-qualified underrepresented groups, with scholarly credentials and practical expertise in immigration, asylum, human rights, and due process in favor of an endless stream of largely “insider only, don’t rock the boat” picks;
Leaving numerous positions unfilled at the end of the Administration for White Nationalist xenophobe Jeff Sessions to fill;
Ignoring obvious, achievable management reforms like e-filing!
The Trump Administration is teeming with malicious incompetents, particularly in the Immigration-related agencies. Notwithstanding that, they immediately figured out how to expedite Immigration Judge hiring and to load the bench with some of the worst, most unqualified, and biased so-called “judges” in modern American legal history!
In other words, Sessions, Whitaker, and Barr shamelessly and rapidly weaponized the Immigration Courts and made them subservient shills and zealots for DHS enforcement and Stephen Miller’s White Supremacist agenda. And feckless Article III Courts, now also stuffed with Trump judges, have, with a few notable exceptions, looked the other way as the slaughter of Constitutional due process and vulnerable humans (including kids) unfolds. You couldn’t write a worse script for the rule of law and future of humanity!
Democrats pretended that the Immigration Courts existed merely to “go along to get along with the policy flavor of the day.” They did not reinforce due process, fundamental fairness, or view the Immigration Bench as a source of expertise, creativity, progressive legal thinking, or creative legal problem solving. The backlogs grew, morale slid (although admittedly not at the breakneck pace under the Trump regime), and the bodies of those who should have been saved but weren’t started to pile up. Simple reforms — try e-filing, for example — were left unaccomplished!
It wasn’t “malicious incompetence” — just good old fashioned “administrative incompetence.” But the latter paved the way for the former to “go on steroids” during the Trump regime. This isn’t just political malpractice and academic debate! Real people have lost their lives, families, or futures because of the Dems’ diddling approach to justice — including America’s largest and perhaps most significant court system over which they had total control!
It’s actually pretty simple: Better judges (from the Supremes to the Immigration Courts) for a better America! And, time for the immigration/human rights community to wake up, join the NDPA, and demand that the Dems do better next time around!
Due Process Forever! Repeating past mistakes, never!
PRESIDENT
NAN ARON
CHAIR
PAULETTE MEYER
March 30, 2020
The Honorable Zoe Lofgren
Chair
Subcomm. on Immigration and Citizenship Committee on the Judiciary
U.S. House of Representatives Washington, DC 20515
Dear Chair Lofgren and Ranking Member Buck:
The Honorable Ken Buck
Ranking Member
Subcomm. on Immigration and Citizenship Committee on the Judiciary
U.S. House of Representatives Washington, DC 20515
On behalf of Alliance for Justice (AFJ), a national association representing 120 groups committed to equal justice and civil rights, I write to add our voice to the organizations that have written or testified at the hearing held on January 29, 2020, before the House Committee on the Judiciary, Subcommittee on Immigration and Citizenship, on “The Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts.”
For more than a generation, AFJ has worked to promote equal justice under law. We have fought to ensure a justice system that upholds the rights of all people. That is why we are so deeply troubled by the Department of Justice’s (the “Department”) exploitation of its position as the superintendent of our nation’s immigration courts to advance its anti-immigrant agenda. The Department’s actions have turned should be a fair adjudicatory system into one designed to dictate outcomes favorable to the anti- immigrant zealots in the Administration. The Department has engaged in a range of efforts designed to deprive individuals who have valid claims of asylum of the opportunity to present those claims. It has sought to influence immigration judges by incentivizing them to summarily deny claims. It has urged judges to adopt its conspiratorial views about the immigration lawyers who appear before the courts. Its pursuit of short-term political objectives has increased backlogs, produced vacancies, contributed to the demoralization of the court system, and resulted in widespread and unnecessary suffering.
AFJ writes this letter, moreover, at a time when the nation, and the world, is facing a pandemic and the Administration has indefinitely closed the southern border to asylum-seekers. Over 200 non-profit legal services organizations, law firms, and immigration legal representatives recently wrote to the
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Letter to Chair Zoe Lofgren and Ranking Member Ken Buck Page 2
Attorney General regarding policies and practices that “during these unprecedented times” will cause immigrants and the providers and advocates who help them to “suffer serious hardships that raise due process concerns.” The concerns raised in the letter, and those mentioned below, only reinforce the need for an independent immigration court system.
The current administration has launched a series of efforts to weaponize the immigration courts. The efforts to control immigration judges include:
• The adoption of enforcement-oriented performance metrics, which require judges to complete 700 cases per year, equivalent to approximately three complete cases each business day. These metrics, which immigration judges must see on their computer screens, require judges to adjudicate claims irrespective of the complexity or merit of the cases and impose categorical restrictions on bond cases;
• The creation of a specialized fast docket, built almost exclusively for Central American families applying for asylum, which includes restrictions on the rights of judges to grant continuances;
• Limitations on judges’ authority to administratively close or terminate cases;
• Training sessions that immigration judges have described as indoctrination. As a former Immigration Judge explained: “There isn’t even any attempt at proper training. The whole indoctrination is you’re not judges, you’re really enforcement”1;
• Abusing the Attorney General’s power to act as a final arbiter of contested cases, by taking cases not then pending before the Board of Immigration Appeals to issue sweeping rulings limiting asylum protection for individuals victimized by domestic violence or harm as a result of retaliation based upon their family relationships. In the latter of the two cases, Attorney General William Barr attempted to sweep aside decades of precedent, much of it from federal appellate courts whose decisions are binding on the immigration courts;
• Issuing a final interim rule that would allow the Director of the Executive Office of Immigration Review to issue opinions on his own, on any appeal pending for more than 180 days;
• Seeking to decertify the National Association of Immigration Judges (NAIJ), the union that has represented immigration judges since 1979. NAIJ serves as one of the last bulwarks against a complete and total takeover of the Immigration Court system by our Executive Branch. Without union representation, immigration judges will lose their collective voice and be unable to push back against policies that undermine the fairness and transparency of the system.
1 Innovation Law Lab and the Southern Poverty Law Center, The Attorney General’s Judges: How the U.S. Immigration Courts Became a Deportation Tool, at 18 (quoting former Immigration Judge and BIA Chairman Paul Schmidt) https://innovationlawlab.org/reports/the-attorney-generals/judges/.
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Letter to Chair Zoe Lofgren and Ranking Member Ken Buck Page 3
In addition to its efforts to turn immigration judges into partisan actors, the Administration’s unceasing efforts to be and appear to be tough on asylum seekers have created disorder, even for those individuals far from the Southern Border. The Administration has repeatedly shuffled Immigration
Judges from jurisdiction to jurisdiction, for example, in a 2017 “surge” of judges to the border, which required the postponement of 23,000 cases. The Attorney General’s decision prohibiting administrative closure will eventually add more than 300,000 cases to its docket. The overall backlog of cases has now doubled, to over one million pending cases. In a number of courts, litigants may wait more than four years before their cases are heard. The disparities in outcomes from jurisdiction to jurisdiction are now worse than ever.
There is also disturbing evidence that the Administration’s attacks on the system may be enabling a culture of impunity. On January 23 of this year, in an unprecedented opinion, the Court of Appeals for the Seventh Circuit chastised the Board of Immigration Appeals for defying the Circuit’s remand order. Relying on what it said was advice from the Attorney General, the Board of Immigration Appeals declared the Seventh Circuit’s decision to be incorrect and declined to obey it. The Circuit stated that it had “never before encountered defiance of a remand order,” adding that members of the Board of Immigration Appeals should count themselves lucky that the immigrant had not asked the
2
Many of the most respected participants and observers of the immigration court system have called for reform of the current system. Groups as diverse as the American Bar Association, the Federal Bar Association, the National Association of Immigration Judges and the CATO Foundation have long urged the transfer of the immigration courts to a separate Article I CourtThese groups have pointed to the need to professionalize the corps of immigration judges and outlined the threat to judicial independence caused by the placement of the immigration court system under the control of the Department of Justice.
What was previously a threat of political interference is now a reality, and AFJ believes that there can be no lasting solution to this problem without removing the immigration court system from DOJ.
2 Debra Cassens Weiss, 7th Circuit is aghast at ‘obduracy’ of Board of Immigration Appeals, which refused to implement its decision, ABA Journal, Jan. 27, 2020, http://www.abajournal.com/authors/4/.
3 Katie Reilly, Northeastern University Student Sent Back To Iran Despite Valid Visa, Judge’s Order As Immigration Attorneys Warn of “Troubling Pattern”, Time Magazine, January 22, 2020, https://time.com/5769-400/northeastern-student-deported-iran.
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court to hold the Board in contempt.
of deportation to an Iranian student who possessed a valid student visa, was ignored by officials of the Customs and Border Patrol, who deported the student from Logan Airport back to Iran. The federal judge then stated that he believed the case to be moot, saying of the government officials, “I don’t think they’re going to listen to me.” The student’s attorney noted, “I wish I could say we were surprised, but we’ve seen this kind of flagrant defiance of the law from immigration officials before.”3
Only days earlier, a federal district court’s order granting a stay
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Letter to Chair Zoe Lofgren and Ranking Member Ken Buck Page 4
Our current system of adjudication is utterly broken. The most effective solution to protecting the neutrality of our Immigration Courts is to create an Article I Immigration Court system that is independent of DOJ. Article I of the U.S. Constitution expressly grants Congress the power to establish “tribunals” in addition to those created by Article III, and Congress has done so on many occasions. The establishment of an Article I Immigration Court would create greater transparency in the system. It would also restore the Due Process rights of those who come before the Court.
While moving the immigration court system from the Department of Justice will not solve the ills of the current system, it is desperately needed as a part of the solution. We therefore urge Congress to support to recommendation of the ABA, immigration judges, and immigration lawyers, among others, to establish an Article I Immigration Court system that is independent of Department of Justice.
Thank you for your consideration. Sincerely,
Nan Aron President
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Click the above link for the AFJ letter in its “original” much more “readable” format.
Why this a big deal:Nan Aron and the group she founded, the Alliance For Justice (“AFJ”), are inspirational, leading voices for justice reform and equal justice for all in America. That Nan and her team see the clear connection between the disintegration of justice in the Immigration Courts and the “big picture” of justice in America, all the way up to the Supreme Court, speaks volumes.
It reaffirms the commonality of the fight for Constitutional justice for asylum seekers and other migrants and the larger issues of building a premier 21st Century justice system of which we can all be proud – one that will treat all persons in our country with respect, dignity, and fundamental fairness. As Dr. Martin Luther King, Jr., once said: “Injustice anywhere is a threat to justice everywhere.”
What an honor to and joy it is to have “Lifetime Due Process Warriors” like Nan Aron and Paulette Meyer and their dedicated team throw their support and expertise behind the push for Article I!
Under their inspiring leadership, AFJ is also spearheading a nationwide effort to identify candidates for the Federal Judiciary, at all levels from the Immigration Courts to the Supreme Court. We need future judges who will put our Constitution, due process, fundamental fairness, human rights, human dignity, and equal justice for all before ideological agendas meant to serve the parochial interests and philosophy of only a minority of Americans.
Establishing an independent U.S. Immigration Court that will finally fulfill the Fifth Amendment requirement of providing “neutral and impartial adjudication” of life or death claims, without the opportunity for political interference or meddling in the individual case process, is an essential part of AFJ’s vision for a better and fairer America. Indeed, an independent Immigration Court that models due process and best practices for the most vulnerable and defenseless among us is the “essential foundation” for our entire justice system all the way up to the Supreme Court.
Also, as Nan and her team recently discussed with our group from the “New Due Process Army” and the “Round Table,” many of the best and most qualified potential candidates for the Federal Judiciary might be talented lawyers who never thought of themselves as “potential Federal Judges” and competing for these critical jobs that shape our justice, system, our nation, and indeed our world. From my extensive observations, in and out of court, in teaching, practice, and community service, folks like clinical professors, NGO advocates, bar association leaders, leaders of charitable and religious organizations, and those who have dedicated large portions of their career to litigating and advising pro bono or “low bono” individuals struggling to find equal justice and be heard in a system that too often wants to shunt them and their rights aside, could all have strong judicial skills. Legal journalists are another group that I have found often possesses stunningly accurate understanding and incisive knowledge of how our justice system works (or doesn’t, in some cases) at every level.
In my view, one of the best potential “entries into judging” is the U.S. Magistrate Judge selection program which generally has been praised as a “merit-based,” apolitical, scholarship-rewarding, and competency focused system administered by the U.S. District Judges, usually in conjunction with the private bar (our son Wick, a private practitioner in Green Bay, WI, served on the Magistrate Selection Committee for the Eastern District of Wisconsin). I would love to see the U.S. Immigration Court become this same type of “merit & scholarship based” depoliticized “hotbed of judicial excellence” and potential “stepping stone” to the higher levels of the Article III Judiciary.
So, to the many members of our “New Due Process Army” who have devoted their careers to fairness, scholarship, timeliness, respect, and teamwork, think about taking on a different role as a Federal Judge in the future. Don’t be surprised if you get a call from one of us at the AFJ or the “New Due Process Army.” Or, better yet, get in touch with us at the AFJ and the NDPA.
Due Process Forever! Help Make Our Courts Better Than Ever!
