"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.
NQRFPT = “Not Quite Ready For Prime Time” — Unfortunately, it’s a more than apt descriptor for the Biden Administration’s overall inept and tone-deaf approach to due process and immigrants’ rights in the beyond dysfunctional and unjust “Immigration Courts” under EOIR @ Garalnd’s DOJ.
Mike LaSusa Legal and Natioanl Security Reporter Law369 PHOTO: Twitter
Influx Of Solo Kids Poses Challenge For Immigration Courts
By Mike LaSusa
Law360 (March 31, 2022, 2:44 PM EDT) — Unaccompanied minors arriving in increasing numbers at the southern U.S. border are likely to face a tough time finding legal representation and navigating an overwhelmed immigration court system that has no special procedures for handling their cases.
The number of unaccompanied children encountered by U.S. Customs and Border Protection has risen sharply over the past year, to an average of more than 10,000 per month, according to CBP data. Those kids’ cases often end up in immigration court, where they are subject to the exact same treatment as adults, no matter their age.
“Nobody really thought of this when the laws were enacted,” said retired Immigration Judge Paul Wickham Schmidt, now an adjunct professor at Georgetown Law. “Everything dealing with kids is kind of an add-on,” he said, referring to special dockets for minors and other initiatives that aren’t expressly laid out in the law but have been tried in various courts over the years.
About a third of the immigration court cases started since October involve people under 18, and of those people, 40% are 4 or under, according to recent statistics from the U.S. Department of Justice’s Executive Office for Immigration Review, which operates the courts.
It’s unclear how many of those cases involve unaccompanied children and how many involve kids with adult relatives, and it’s hard to make historical comparisons because of changes in how the EOIR has tracked data on kids’ cases over the years.
But kids’ cases are indeed making up an increasing share of immigration court dockets, according to Jennifer Podkul, vice president of policy and advocacy for Kids in Need of Defense, or KIND, one of the main providers of legal services for migrant kids in the U.S.
“The cases are taking a lot longer because the backlog has increased so much,” Podkul said. Amid the crush of cases, attorneys can be hard to find.
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The immigration courts should consider “getting some real juvenile judges who actually understand asylum law and have real special training, not just a few hours of canned training, to deal with kids,” said Schmidt, the former immigration judge.
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Those with Law360 access can read Mike’s complete article at the link.
For what seems to be the millionth time with Garland, it’s not “rocket science.”🚀 He should have brought in Jen Podkul, her “boss,” Wendy Young of KIND, or a similar qualified leader from outside Government, to kick tail, roll some heads, clean out the deadwood, and set up a “Juvenile Division” of the Immigration Court staffed with well-qualified “real” judges, experts in asylum law, SIJ status, U & T visas, PD, and due process for vulnerable populations.
Such judicial talent is out there. But, that’s the problem with Garland! The judicial and leadership talent remain largely “out there” while lesser qualified individuals continue to botch cases and screw up the justice system on a regular basis! Actions have consequences; so do inactions and failure to act decisively and courageously.
And, of course, Garland should have replaced the BIA with real judges — progressive practical scholars who wouldn’t tolerate some of the garbage inflicted on kids by the current out of control, undisciplined, “enforcement biased,” anti-immigrant EOIR system.
Instead, Garland employs Miller “restrictionist enforcement guru” Tracy Short as his “Chief Immigration Judge” and another “Miller holdover” David Wetmore as BIA Chair. No immigration expert in America would deem either of these guys capable or qualified to insure due process for kids (or, for that matter anyone else) in Immgration Court.
Yet, more than a year into the Biden Administration, there they are! It’s almost as if Stephen Miller just moved over to DOJ to join his buddy Gene Hamilton in abusing immigrants in Immigration Court. (Technically, Hamilton is gone, but it would be hard to tell from the way Garland and his equally tone-deaf lieutenants have messed up EOIR. Currently, he and Miller are officers of “America First Legal” a neo-fascist group engaged in “aiming to reinstate Trump-era policies that bar unaccompanied migrant children from entering the United States,” according to Wikipedia.)
Meanwhile, the folks with the expertise to solve problems and get the Immigration Courts back on track, like Jen & Wendy, are giving interviews and trying to fix Garland’s ungodly mess from the outside! What’s wrong with this picture? What’s wrong with this Administration?
We’re about to find out! Big time, as Garland’s broken, due-process denying “court” system continues it’s “death spiral,” ☠️ taking lots of kids and other human lives down with it!
The union is hopeful that President Biden will reverse the decision, but they have yet to see action. “I know the new administration is extremely busy; I think this is a very important and significant issue,” said Paul Shearon, president of the International Federation of Professional and Technical Engineers, a union that represents many high-skilled federal employees.
As the administration begins to process asylum seekers in the “Remain in Mexico” program and otherwise roll back Trump’s asylum blockades, the court system will need to run efficiently and fairly. As it is, the immigration court backlog—largely created by Trump policies—is at 1.3 million cases.
Trump’s decertification of NAIJ “was to retaliate against NAIJ for our strong voice and our strong call to demand transparency and accountability,” said Amiena Khan, NAIJ president. The union’s previous president, A. Ashley Tabaddor, is now chief counsel at U.S. Citizenship and Immigration Services. The union is hopeful that Biden will take action, though nothing has yet been forthcoming.
“We are very supportive of the current Biden administration and appreciate his strong support for unions and collective bargaining,” said Khan.
Biden’s position on unions in other contexts has been clear. Some labor historians have said he is the most pro-labor president in their lifetimes. In an executive order in January, Biden directed the Office of Personnel Management to make recommendations concerning raising the minimum wage for federal employees to $15 per hour. In February, Biden voiced support for Amazon workers’ right to organize, an unprecedented level of support from a sitting president.
Almost immediately, the immigration judges’ union asked if he would follow up by voluntarily recognizing their union. No action has been taken. A White House spokesperson has not yet responded to a request for comment.
Merrick Garland has now been confirmed as attorney general, perhaps setting the stage for quicker movement. But the union says that, despite immigration judges being part of the Justice Department, an attorney general appointment isn’t needed to reverse the decision. The administration can voluntarily recognize the union.
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Over the last four years, the NAIJ was was one of the few “inside sources” of truth about the Trump Administration’s misconduct and gross mismanagement — “malicious incompetence” —at the DOJ. Obviously, in the Trump Administration speaking truth to power was a punishable offense. NAIJ was no exception.
This union representing Immigration Judges was illegally “decertified” in an absurd decision by the FLRA finding that IJs were now “management officials” on the basis of actions that had reduced them to little more than “deportation clerks” carrying out the regime’s White Nationalist, xenophobic agenda.
Not only did IJs continue to have no control whatsoever over their staff and working conditions, but they were unceremoniously stripped of their already-limited authority to professionally manage their dockets and to exercise independent discretion. They were subjected to due-process-killing “deportation quotas” and bogus “performance evaluations” by unqualified and largely out of touch “supervisors” — few, if any, of whom handled full dockets themselves — that would have been more suited to entry level deportation officers than supposedly independent and impartial “judges.” Meanwhile, the real primary cause of uncontrollable backlogs and endless delays at EOIR — “Aimless Docket Reshuffling” by politicos at EOIR HQ and the DOJ, and horrible, anti-due process, out of touch with reality “precedents” by biased AGs and the BIA — continued unabated.
Always subject to control by their “handlers” at EOIR HQ and DOJ, IJs were further humiliated by being barred from teaching at professional seminars and writing for scholarly publications. Their dockets and roles were defined by highly unqualified politicos who had never presided at an immigration hearing in their careers! Talk about screwed up!
Who ever heard of a “judiciary” that operates like a totally dysfunctional bureaucratic agency — that has most recently been run by non-judicial personnel who lack expertise, experience, and a commitment to due process — but were focused on carrying out an overtly anti-immigrant, anti-human rights, anti-due-process White Nationalist political agenda!
To add to this outrageously politically-biased scenario, to reach its ludicrous result the FLRA had to steamroll both their prior precedent on the same issues and overrule the decision of their own Regional Director.
Presently, the NAIJ is the only organization providing due-process oriented training directly to Immigration Judges. The leadership of the NAIJ stand out as some of the most qualified, courageous, and talented judges on the immigration bench.
Judge Garland and the Biden Administration simply can’t afford to leave the NAIJ out in the cold if they intend to fix the now totally-screwed-up EOIR and bring constitutionally-required equal justice under law to the broken and reeling DOJ. You simply can’t promote racial justice in America while running a “court” that has institutionalized racial biases and mocks, tramples, and ignores due process and equal justice on a daily basis!
FULL DISCLOSURE: I am a proud retired member of the NAIJ!
Susan Church, an immigration attorney in Boston, ended the first week of the Trump administration arm in arm with protesters at Logan Airport, resisting an executive order banning travel from several predominantly Muslim countries. But what happened the next day, away from the public chants of “Let them stay!” was more typical of what the life of the former chair of the New England chapter of the American Immigration Lawyers Association (AILA) was to become under the Trump administration.
Church and an associate filed an emergency lawsuit to secure the release of immigrants from Customs and Border Protection (CBP) custody. “I got a federal judge on the phone, you know, on a Saturday night at eight o’clock.” The judge told Church to go to court immediately. An hour later, the attorneys were in court defending their clients.
“For me, that was the canary in the coal mine about what the rest of my four years under the Trump administration was going to be like,” Church said. “It’s just a nonstop series of emergency litigation filed to try to rescue one or 10 or 100 or 1,000 people, depending on which issue it is.” Eventually, the speed of the work, and the physical and mental exhaustion it triggered, landed Church in the hospital. “I thought I was having a heart attack,” she said.
Church stayed with the fight to reunite parents with their children. She described the process of taking affidavits from clients, which require she learn every harrowing detail of a client’s trauma. In one instance, CBP ripped away one woman’s eight-year-old daughter at the border. “She had to comb her daughter’s hair and change her daughter’s clothes and put her on a bus and say goodbye to her,” Church said through tears. The two were separated for nearly two months, even after the mother was released from detention.
Church was able to reunite her client with her child, but the episode—like many, many other cases—weighs heavy on her shoulders. “I don’t think I’ll ever be quite the same person that I was beforehand,” she said.
Four years into this migration crisis, there’s a parallel migration under way—of immigration lawyers out of the profession. Survey data and interviews the Prospect conducted with more than a dozen lawyers around the country reveal the physical, mental, and financial toll endured by members of the bar. Given the extreme violence, trauma, and inhumanity their clients often endure, immigration attorneys don’t like to talk about how it affects them. But secondary trauma also leaves a mark, making it impossible to continue for some attorneys. Although numerical data is limited, there is evidence that some attorneys are cutting back on some types of cases, such as deportation defense work, or even leaving immigration law altogether. Removal defense casework is one of the most time-intensive, emotional, and exigent parts of lawyers’ loads. It’s also where the administration has aimed much of its cruelest policymaking, severely limiting lawyers’ efficacy.
Under the Trump administration, immigration law has changed not only profoundly, but also so rapidly that it’s hard for immigration attorneys to keep up. Susan Church—and several other attorneys interviewed for this article—described combating Trump’s policies as a game of whack-a-mole.
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Read Marcia’s full article at the link.
Forget all the right wing BS and the “originalist hoax!” This is about “democracy (or the destruction thereof) in action.”
Remember, all of these cosmic “immigration law changes” have taken place without a single piece of major legislation enacted by Congress! Indeed, the Trump regime’s ham-handed attempt to force it’s nativist agenda down the throats of the Congress as part of the “Dreamer fiasco” fell flat on its face in both Houses!But, the Supremes have both encouraged and enabled Trump (actually notorious white supremacist Stephen Miller) to rewrite the law through. “Executive fiat.” Totally inappropriate, not to mention glaringly unconstitutional.
The Supremes’ majority has time and again improperly sided with the unethical, immoral, and Constitutionally bankrupt “Dred Scottification” of migrants, particularly asylum seekers. It’s not much different from what has happened to African Americans, Latinos, and other minorities following the Civil War. But, this is supposed to be the 21st Century where we have put “Jim Crow” behind us. Obviously, we haven’t!
Failing to protect “officers of the court” (lawyers) and their clients from a scheme of abuses heaped upon them by a corrupt, biased, out of control, overtly racist Executive and his sycophants is a gross dereliction of duty by the Supremes. It’s basically like allowing, and even encouraging, the badgering of a witness during trial!
It’s painfully obvious that we have many of the wrong folks on the bench — from the Immigration Courts to the Supremes. Indeed, the nation and the world would be much better served if many more of those courageous lawyers who serve the immigrant community and human rights experts were on the Federal Bench at all levels.
Trump, Roberts, and the GOP judicial misfits have also shown us first-hand the profiles of individuals who should not be serving in judicial positions. Let them litigate their “originalist,” “unitary Executive,” and other “far out” righty philosophies as lawyers appearing before real judges —“practical scholars” who live in the 21st Century and are committed to problem solving rather than problem creating. As Joe Biden has noted, the entire judicial selection system and particularly the Supremes need a thoughtful re-examination and reform.
Never again should we have Justices like Amy Coney Barrett and Clarence Thomas performing highly inappropriate and unethical televised “campaign stunts” for an incumbent President during an ongoing election. Geez! What kind of “impartial jurists” are they?
Most first year law students could tell you that’s a “no-go!” Why have we “normalized” and “accepted” such obvious bias, misbehavior, and lack of sound judgment at the highest levels of our (not Trump’s or Mitch’s personal) Judiciary?
It’s not “Rocket Science!” The fundamental building blocks of our society are immigration, human rights, and equal justice! Any lawyer who who doesn’t embody those virtues and doesn’t publicly embrace them should not in the future be given a lifetime appointment as a Federal Judge — at any level!
We need better judges for a better America! We will never achieve constitutionally-required “equal justice for all” for African Americans, Latinos, or anyone else, nor can we reach our diverse nation’s full potential, if we don’t start “pushing back” against Roberts and the GOP’s right wing judicial oligarchy, their obtuse legal gibberish, and their anti-democratic “jurisprudence.”
It starts with voting to take back our country from the far right. But, that’s just the beginning of the changes needed if equal justice for all is to become a reality, rather than an ever unfulfilled promise, limited to certain privileged (predominantly White) groups within our society!
And, all of society owes a debt of gratitude to Ms. Church and other brave lawyers like her who represent the best our country has to offer and have actually suffered for standing up for the rule of law and the legal and human rights of the most vulnerable among us. In other words, standing up for all of our rights against a tyranny!
Compare that with the utterly dismal composition of the “Trump kakistocracy” and its “Dred Scottification” of “the other.”
