Asylum – Page 155 – immigrationcourtside.com

WASHPOST FRONT PAGER: THE END OF “CATCH & RELEASE?”

https://www.washingtonpost.com/national/he-crossed-the-border-illegally-but-wasnt-deported–because-he-brought-his-child/2017/06/25/bdef43c8-511b-11e7-b064-828ba60fbb98_story.html?utm_term=.c0a98403a3bb

Jessica Contrera reports from McMillan, TX for the Washington Post:

“Along the border, the impacts of Trump’s immigration policies are visible everywhere: At the river, the number of people crossing into the United States has plummeted. At the detention facilities, fewer people are being detained. And at the McAllen bus station — a place where ICE has released more than 30,000 families since 2014, sometimes hundreds a day — the number of people coming in each day is sometimes down to just an overwhelmed man and his only child, with tickets that will take them 1,700 miles and 46 hours north to live with a relative in Cleveland.

“Look at the dresses,” Sandra says as the bus passes a clothing store.

Miguel looks instead at her. She must be tired, he thinks. Or at least hungry. He reaches for a bag carrying the only food they have for the trip. It had been given to them not by ICE, but by a stranger at the bus station. She had run up to them just before they boarded and passed them the bag, which was full of snacks and sandwiches. Miguel hands a sandwich to Sandra. She takes a bite. He does not know who the stranger was, only that she seemed to be in a hurry, and now there are seven sandwiches left and 46 hours to go.

. . . .

In the months since Trump took office, the sign-in sheet had fewer names with each passing week. For a time, the respite center staff wondered if the families would stop being released completely. “Under my administration,” Trump had said during his campaign, “anyone who illegally crosses the border will be detained until they are removed out of our country.” He railed against the very policy that had allowed the families to come here: a policy critics have long called “catch and release.” It was a routine developed for ICE and Border Patrol to handle the overwhelming number of parents and children, mostly from Central America, crossing the border to ask for asylum. Each released family would be allowed to go live with their relatives in the United States, as long as they appeared at the check-ins and court dates that would eventually determine whether they would be deported.

On his sixth day in office, Trump issued an executive order declaring the “termination” of catch and release. It has not been as simple as that declaration, though; there are laws and judicial orders in place that limit how long ICE can detain children, and in most cases, when a child is released, at least one of their parents is, too.

For the time being, catch and release was still happening, and Gabriela was still showing up at work every day, never knowing if it would be the one when the surge of people returns, or another when so few people cross the border, no families show up at the respite center at all.”

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Read the complete article at the above link.

We use “catch and release,” a sport fishing term to refer to the lives and futures of real human beings like this. And by all accounts, including my own observations, immigration detention is something that can be highly coercive, intentionally demoralizing, and expensive.

PWS

06-26-17

CAT REOPENING: 9th Cir. Finds “the BIA abused its discretion by disregarding or discrediting the undisputed new evidence submitted by Agonafer regarding increased violence toward homosexuals in Ethiopia!” — AGONAFER v. SESSIONS!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/23/13-73122.pdf

“We conclude that the BIA abused its discretion because it clearly disregarded or failed to give credit to the post-2007 evidence submitted by Agonafer, which demonstrates that the country conditions regarding the treatment of homosexuals in Ethiopia are qualitatively different from the country conditions presented to the IJ in 2007. Whereas before, we noted that there was “no evidence in the record of any violence directed against homosexuals in Ethiopia,” Agonafer, 467 F. App’x at 754, at least two of the reports submitted with Agonafer’s motion to reopen provide reports of violence directed against homosexuals in Ethiopia since 2007, including violence in connection with imprisonment. Additionally, we reject the government’s contention that Agonafer must present categorically different evidence of “individual relevancy” from what he presented in his earlier proceedings. It is undisputed that Agonafer is a homosexual male. Given Agonafer’s sexual orientation and the evidence of the treatment of homosexuals in Ethiopia, there is sufficient evidence that, if proved, would establish his prima facie eligibility for deferral of removal under the CAT. See Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010) (“[A] CAT applicant may satisfy his burden with evidence of country conditions alone.”).”

Before: William A. Fletcher and Richard C. Tallman, Circuit Judges, and Paul C. Huck,* District Judge. Opinion by Judge Huck * United States District Judge for the U.S. District Court for the Southern District of Florida, sitting by designation.

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Yes, it’s only one case out of tens of thousands that the BIA reviews each year. But, mistakes like this from what is supposed to be an “expert judiciary” committed to using “best practices” to “guarantee fairness and due process for all” actually can cost lives!

And mindlessly ramming more cases into an overwhelmed system won’t help the situation.

PWS

06-26-17

U.S. District Judge In Detroit Temporarily Halts DHS Effort To Expel Chaldean Christians To Iraq!

https://apnews.com/65537e11f1a941c7954faaebdd35f75d/Detroit-judge-halts-deportation-of-Iraqi-Christians

AP reports:

“DETROIT (AP) — A judge on Thursday temporarily halted the deportation of more than 100 Iraqi Christians living in the Detroit area who fear torture and possible death if sent back to Iraq.

U.S. District Judge Mark Goldsmith said in a written order that deportation is halted for 14 days while he decides if his court has jurisdiction to hear their plight.

The Justice Department had argued that the detainees, including many who were recently rounded up after decades in the U.S., must go to immigration court to try to remain in the U.S., not U.S. District Court. But the American Civil Liberties Union said they might be deported before an immigration judge can consider their requests to stay.

Goldsmith heard arguments Wednesday. He said he needs more time to consider complex legal issues.

Potential physical harm “far outweighs any conceivable interest the government might have in the immediate enforcement of the removal orders before this court can clarify whether it has jurisdiction to grant relief to petitioners on the merits of their claims,” Goldsmith said.

Most of the 114 Iraqis are Chaldean Christians, but some are Shiite Muslims and converts to Christianity. They were arrested on or about June 11 and the U.S. Immigration and Customs Enforcement said all have criminal convictions.

Iraq recently agreed to accept Iraqi nationals subject to removal from the U.S.

“The court took a life-saving action by blocking our clients from being immediately sent back to Iraq,” Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, said in a release. “They should have a chance to show that their lives are in jeopardy if forced to return.”

Besides the 114 arrested in the Detroit area, 85 other Iraqi nationals were arrested elsewhere in the country, according to ICE. As of April 17, there were 1,444 Iraqi nationals with final orders of removal from the U.S. Eight already have been returned to Iraq.

The detainees include Louis Akrawi, who served more than 20 years in Michigan prisons for second-degree murder. He was accused of arranging a shooting that killed an innocent bystander in 1993.

“He’s 69 years old, he has two artificial knees, and he needs surgery on both eyes. Sending him back to Iraq is unfair,” his son, Victor Akrawi, told The Detroit News.”

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Perhaps, Evangelical Christians who supported Trump thought they would get a break. But, in this particular operation, being a Christian doesn’t seem to have helped. Muslims are also being removed.

PWS

06-23-17

LOONY LAW: Absurdly Overbroad “Terrorist” Definition Punishes Our Friends And Comforts REAL Terrorists — Led By GOP, Legislators Shirk Duty To Restore Reason To Law!

https://www.nytimes.com/2017/06/23/world/middleeast/immigration-asylum-syria-terrorism.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news&_r=0

Somini Sengupta reports in the NY Times:

“A prominent Syrian dissident has been told he cannot get political asylum in the United States because he organized a conference with Syrian opposition groups — even though the American government has supported members of those same groups in the Syrian civil war.

The case of the dissident, Radwan Ziadeh, 41, who lives in a suburb of Washington, reveals a stark gap between American immigration law and foreign policy.

Ever since counterterrorism provisions were expanded after the Sept. 11 attacks, the United States government has considered many armed opposition groups around the world, including some that it backs diplomatically or financially, to be “undesignated terrorist organizations.” Anyone who provides “material support” to those groups can be disqualified from receiving immigration papers.

Mr. Ziadeh is a prominent political opponent of the Syrian president, Bashar al-Assad. He has received fellowships at Harvard, Georgetown and the United States Institute of Peace, which is funded by Congress. He has testified in Congress, written books and served briefly as a spokesman for the Syrian opposition umbrella group that the American government supported.

But early this month, Mr. Ziadeh was informed that he would be denied political asylum in the United States. In a 12-page letter laying out the government’s “intent to deny” his asylum claim, Citizenship and Immigration Services explained that he had provided “material support” to Syrian groups that the government considered undesignated terrorist organizations.

Mr. Ziadeh said he was shocked. He and his wife have lived in the United States for 10 years on a series of temporary permits, the latest of which expires next spring. Their children were born here.

“Right now, I can’t even plan for the future,” he said. “What will happen? I have three American kids. I love, actually, the U.S. I visited all 50 states, even U.S. territories. I visited all the presidential libraries.”

Going back to Syria is not an option. The government there has a warrant out for his arrest; the Islamic State has him on a list of Syrians it wants dead.

At issue, specifically, is that Mr. Ziadeh organized a series of conferences from November 2012 to May 2013 to discuss a democratic transition in Syria.

Among those invited to the workshops, held in Istanbul, were self-described commanders in a loose confederation of rebel groups called the Free Syrian Army, as well as political leaders affiliated with the Syrian Muslim Brotherhood.

Both groups are well known to the American government. For years, the Central Intelligence Agency and its counterparts in Turkey, Jordan, Saudi Arabia and other countries have provided some Free Syrian Army factions with salaries, arms and other supplies. The State Department has also provided aid.

The Syrian Muslim Brotherhood’s members also had central roles in the Syrian National Council, the political umbrella group that the United States supported.

Robert S. Ford, a former American ambassador to Syria, said in an email that the American government did not consider either of the groups that Mr. Ziadeh invited to the workshops to be a terrorist organization.

The Syrian Muslim Brotherhood, Mr. Ford added, has no “administrative connection” to Muslim Brotherhood factions in other countries. (President Trump’s advisers have debated but not decided whether to designate the Muslim Brotherhood as a terrorist group.)

Moreover, Mr. Ford said, both Hillary Clinton and John Kerry, as secretaries of state, met with opposition delegations that included Brotherhood members.

“The U.S. administration, myself included, regularly spoke with members of the Syrian Muslim Brotherhood who were themselves members of Syrian opposition coalitions and delegations,” he wrote.

In its letter to Mr. Ziadeh, Citizenship and Immigration Services said he had provided “material support” to members of the groups when his organization, the Syrian Center for Political and Strategic Studies, paid for their airfare and hotel bills in Istanbul, using money from the Canadian government.

“As both the FSA and the Syrian Muslim Brotherhood used weapons with the intent to endanger the safety of Syrian government officials, both groups have engaged in terrorist activity such that they met the definition of an undesignated terrorist organization (Tier III) at the time you provided material support,” the letter states.

“You have therefore ‘engaged in terrorist activity,’” it went on to say.

Mr. Ziadeh is appealing the government’s decision.

His lawyer, Steven H. Schulman, said that inviting members of opposition groups to a conference to discuss the political future of Syria should not be seen as promoting the groups’ agendas or providing them with material support.

“I find it offensive, because no reasonable person would sit down and say Radwan Ziadeh is a terrorist,” Mr. Schulman said. “There are real terrorists out there. We all know that. Somehow, we are unable to distinguish between people who actually engage in terrorist activity and who do not engage in terrorist activity.”

The label “undesignated terrorist organization” has been in place since the aftermath of the Sept. 11 terrorist attacks. Many organizations that have engaged in violence, whether or not the United States supported them, have fallen under that term, said Anwen Hughes, a lawyer who specializes in asylum cases at Human Rights First, an advocacy group.

Providing “material support” to those groups can mean anything from fighting alongside them to paying them ransom. In 2008, an Iraqi man who worked as an interpreter for American forces in Iraq was denied a green card because he had belonged to a Kurdish group seeking to oust Saddam Hussein.

Ms. Hughes said one of her former clients had been denied asylum because he paid a ransom to an armed group in order to release a kidnapped family member. “It’s a fairly widespread problem that’s not limited to Syrians,” she said.”

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Read the complete story at the link.

Unfortunately, U.S. Immigration Judges’ hands are tied on this provision. Not only must they apply it, but they have been denied authority to issue the limited waivers available. Instead, that authority has been given to lower level adjudicators at the USCIS with no right to appeal a denial. In fact, there isn’t even a process to actually apply for the waiver. Only ICE can “refer” a case from Immigration Court to USCIS for consideration of the waiver.

Article III Courts have had various opportunities to shut down this “arbitrary, capricious, and absurdly overbroad” abuse of Legislative and Executive authority. But, perhaps because they lack the backbone to stand up for individuals caught up in the aura of a “national security” problem, they have looked the other way.

To make things worse, the Trump Administration appears to be moving in the direction of revoking all or some of the currently existing waiver authority. No wonder our foreign policies in Syria and many other countries in the Middle East and elsewhere are so ineffective and in such disarray. Who would offer to help to a feckless country that treats its friends and allies like enemies?

PWS

06-23-17

THE NEW YORKER: Bureaucratic Delays Impede Due Process In U.S. Immigration Court!

http://www.newyorker.com/news/news-desk/what-will-trump-do-with-half-a-million-backlogged-immigration-cases

Jonathan Blitzer writes in The New Yorker:

“In April, Attorney General Jeff Sessions travelled to Nogales, Arizona, to make an announcement. “This is the Trump era,” he said. “The lawlessness, the abdication of the duty to enforce our immigrations laws, and the catch-and-release practices of old are over.” While his tone was harsh, and many of the proposals he outlined were hostile to immigrants, he detailed one idea that even some of his critics support: the hiring of more immigration judges.

U.S. immigration courts are facing a backlog of over half a million cases—and each one, on average, takes almost two years to close. These delays mean that everyone from asylum seekers to green-card holders faces extended stays in detention while awaiting rulings. Speaking about the problem, one immigration judge recently told the Times, “The courts as a whole lose credibility.”

Much of the backlog can be traced back to the Obama Administration, when spending on immigration enforcement went up, while Congress dramatically limited funds for hiring more judges. The number of pending cases grew from a hundred and sixty-seven thousand, in 2008, to five hundred and sixty thousand, in 2017, according to the Transactional Records Access Clearinghouse. The broader trend, though, goes back farther. Since the creation of the Department of Homeland Security, in 2002, the increase in resources allocated for border security and immigration policing has always significantly outpaced funding for the courts. (Immigration courts are part of the Department of Justice.) As more and more people have been arrested, detained, and ordered deported, the courts have remained understaffed and underfunded. “We’ve always been an afterthought,” Dana Leigh Marks, the president of the National Association of Immigration Judges, told me.

Roughly three hundred judges nationwide are responsible for the entire immigration caseload, and hiring is slow—filling a vacancy typically tak

es about two years, according to the Government Accountability Office. In Nogales, Sessions said that he would try to streamline the hiring process. But until that happens the Administration has been relocating judges to areas where they’re deemed most necessary. “We have already surged twenty-five immigration judges to detention centers along the border,” Sessions said, as if talking about military troop levels.”

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To state the obvious, a court should be run as an independent court system, not a bureaucratic agency within a highly politicized Executive Department like the DOJ. (If you ever wondered whether the DOJ was politicized, recent events should make it clear that it is.)

And, Jeff, these are judges, not troops; and the individuals are not an “invading army,” just mostly ordinary folks seeking refuge, due process, and fair treatment under our laws and the Constitution. Remember, it’s not an immigration crisis; it’s a crisis involving the steady degradation of due process within the U.S. Immigration Court system.

PWS

06-21-17

NEW FROM THE HILL: Nolan Rappaport Critiques Canada’s Refugee Stance!

http://thehill.com/blogs/pundits-blog/immigration/338561-trudeau-tweets-not-the-answer-to-canadas-refugee-issues?mobile_switch=standard

Nolan writes:

“The day after President Donald Trump issued his first travel ban order, Canadian Prime Minister Justin Trudeau tweeted a message to aliens “fleeing persecution, terror & war.” In addition to the inappropriateness of accusing the president of the United States of religious discrimination, his tweet made a promise that Canada will not be able to keep.

His tweet was an unqualified invitation to the 65.6 million aliens worldwide who have been displaced from their countries by conflict and persecution. Canada almost certainly will have to turn away many of the aliens who accept the invitation and come to Canada relying on it.

Some will be disqualified by Canada’s Safe Third Country Agreement with the United States, which requires asylum seekers to apply for asylum in the United States if they enter that country before entering Canada, with some exceptions.

Also, his invitation includes aliens who are fleeing terror and war, and despite their very real need for refuge, they are not likely to be able to establish eligibility for refugee status or asylum on that basis. According to UNHCR figures, only 22.5 million of the 65.6 million displaced persons are refugees.

Trudeau’s tweet reminds me of President Jimmy Carter’s invitation to Cuban refugees when he was asked what the government was going to do about the Mariel Boat Lift. On April 20, 1980, Cuban President Fidel Castro announced that he would permit Cubans wishing to leave Cuba to go to the United States. Two weeks later, Carter said that the United States would “welcome the Cuban refugees with open arms and open hearts.”

But the boat lift was not limited to refugees. Castro forced the boat owners who participated in the boat lift to take approximately 8,000 criminals and hundreds of mentally-ill persons. The boat lift was a financial disaster for the ship owners. Despite Carter’s promise to welcome the Cuban refugees, his administration fined the boat owners $1,000 for each of the estimated 110,000 Mariel refugees they brought here in violation of section 273 of the Immigration and Nationality Act.”

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Read Nolan’s complete op-ed, which also contains a description of Canada’s Refugee Program, over on The Hill at the above link.

Several thoughts. Most of the world’s refugees have no way of getting to Canada. Many victims of war an terror are, in fact, refugees under a proper application of Convention standards. Our “Safe Third Country Agreement” with Canada has very limited applicability. Also, regardless of the wisdom of accusing President Trump of religious discrimination, nearly all Federal Courts to consider the two Travel Bans to date have found that the President indeed had improper motives for imposing the ban, including religious discrimination.

Given Trump’s highly problematic attitude and actions towards refugees, I’d be hesitant to throw too many stones at other nations who are at least trying to show the spirit of generosity embodied in the U.N. Convention and Protocol. Wise or not, Trudeau’s heart is in the right place. That’s more than I can say for Trump.

PWS

06-20-17

IMMIGRATION HISTORY: Here’s The Chase-Burman Mini-Library Of Immigration History, Courtesy Of “The Green Card!”

75 Years of the BIA

http://www.fedbar.org/Image-Library/Sections-and-Divisions/Immigration/Green-Card-Spring-2016-updated.aspx

“Matter of L-, 1 I&N Dec. 1 (BIA 1940), was issued on August 29, 1940, the day before the Board of Immigration Appeals came into existence.2 Some background about the Board’s early history is required to explain this. From 1922 until 1940, a five-member Board of Review existed within the Department of Labor to review all immigration cases. The Board of Review had no decision- making authority of its own; it could only recommend action to the Secretary of Labor. In 1933, the Immigration and Naturalization Service (INS) was formed within the Department of Labor,3 and from 1933 until 1939 the Board of Review made its recommendations to the Commissioner of Immigration and Naturalization.4″

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Commentary on “Pattern or Practice” Persecution

http://www.fedbar.org/Image-Library/Sections-and-Divisions/Immigration/Green-Card-Fall-2016-.aspx

In INS v. Cardoza-Fonseca, its landmark 1987 decision establishing that the burden of proving a “well-founded fear of persecution” is significantly less than fifty percent, the Supreme Court relied on the following scholarly example: “Let us…presume that it is known that in applicant’s country of origin every tenth adult male person is either put to death or sent to some remote labor camp… In such a case it would be only too apparent that anyone who managed to escape from the country would have ‘well-founded fear of being persecuted’ on his eventual return.”2 While the Court’s decision predates the “pattern or practice” regulation by more than three years, the example it relies on (which predates the regulation by 24 years) presents a classic “pattern or practice” scenario. The hypotheti- cal establishes (1) a group, i.e., all adult males in a particular country; and (2) information establishing systemic persecution of one in ten members of such group. all members of the group therefore have a well-founded without the need to explain their individual circumstances.”

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The History of Racism in U.S. Immigration

http://www.fedbar.org/Image-Library/Sections-and-Divisions/Immigration/the-green-card-winter-2017.aspx

“Racism was codified in this country’s original natu- ralization law. The Naturalization Act of 1790 limited the right to naturalize to “free white persons.” Following the Civil War, the Act of July 14, 1870, added “aliens of African nativity” and “aliens of African descent” to those eligible to naturalize. However, all others considered “non-white” continued to be barred from obtaining United States citizenship. In 1922, the Supreme Court denied Takao Ozawa, a Japanese immigrant who had lived in the U.S. for 20 years, the right to become a naturalized citizen because he “clearly” was “not Caucasian.” In interpreting the term “free white persons,” the Court found that “the framers did not have in mind the brown or yellow races of Asia.”1 In United States v. Bhagat Singh Thind,2 the Supreme Court reached the same conclusion regarding an “upper-caste Hindu” who claimed a lineage classi ed as “Aryan” or “Caucasian.” The Court determined that “Aryan” related to “linguistic, and not at all with physical, characteristics,” and concluded that the term “free white persons” as understood by the common man, would not include those of Hindu ancestry.3 It was not until passage of the McCarran-Walter Act in 1952 that the naturalization law was amended to read that “[t]he right of a person to become a naturalized citizen shall not be denied or abridged because of race or sex…”4

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Read all three of Judge Chase’s outstanding histories and get some “instant perspective” on how we got to where we are today as a nation of immigrants. There was no shortage of hypocracy. And, I submit that in the course of history some of today’s politicians advocating restrictive racially and religiously charged immigration policies are going to look just as distasteful, arrogant, prejudiced, and ignorant as some of the judges, lawmakers, and government officials described in these articles.

PWS

06-19-17

UPDATE

Judge Chase has reminded me that there is a fourth part to this collection:

The History of U.S. Asylum Law

http://www.fedbar.org/Image-Library/Sections-and-Divisions/Immigration/Green-Card-Summer-2016.aspx

“U.S. asylum policy is a product of the tension between the public sentiments of compassion and fear. In the words of a former Deputy UN High Commissioner: “The public will not allow governments to be generous if it believes they have lost control.” 1 Although asylum can be traced back at least to the Old Testament, for all practical purposes, U.S. asylum policy began on the eve of World War II.”

PWS

06-21-17

WSJ: 47 Years Have Passed, But The Mariel Boatlift Is Still Generating Controversy!

https://www.wsj.com/article_email/the-great-mariel-boatlift-experiment-1497630468-lMyQjAxMTI3NTEyNzIxMDc0Wj/

Ben Leubsdorf writes in the WSJ:

“In the spring and summer of 1980, some 125,000 Cuban refugees sailed from the port town of Mariel on fishing boats and pleasure craft toward the U.S., many destined to settle in Miami.

Nearly four decades later, that exodus is at the center of an unresolved, sometimes bitter argument among economists, hinging on a basic question: When foreigners come to the U.S., does their presence drive down the wages of native workers? The long-running dispute has gained new relevance as the Trump administration tries to implement and enforce a stricter immigration policy.

Research published a decade after the Mariel boatlift, as well as more recent analyses, concluded that the influx of Cuban migrants didn’t significantly raise unemployment or lower wages for Miamians. Immigration advocates said the episode showed that the U.S. labor market could quickly absorb migrants at little cost to American workers.

But Harvard University’s George Borjas, a Cuban-born specialist in immigration economics, reached very different conclusions. Looking at data for Miami after the boatlift, he concluded that the arrival of the Marielitos led to a large decline in wages for low-skilled local workers.

“This is his moment,” said David Card, the author of the early research on the boatlift that Dr. Borjas is seeking to upend. (The Justice Department declined to comment, and the White House didn’t respond to requests for comment.)

Dr. Borjas has sparred for years with Dr. Card, an economist at the University of California, Berkeley, as well as with Giovanni Peri of the University of California, Davis. In 2015, Dr. Borjas and Dr. Peri released papers three months apart that arrived at wildly different conclusions about Mariel.

The argument among the academics—all immigrants themselves—has escalated into charges of bias and bad faith. Dr. Peri and a co-author dismissed Dr. Borjas’s study as having “serious limitations.” Dr. Borjas fired back that “sloppiness” in their own paper “helps obfuscate what your eyes can clearly see and leads to a claim that nothing at all happened in post-Mariel Miami.”

Dr. Card and Dr. Peri, reviewing a textbook by Dr. Borjas several months later, said that he only “presents half the story about the economics of immigration.” Last fall, in another book, Dr. Borjas compared Dr. Peri to Marxist-Leninist teachers in his native Cuba: “They believed. All that was left was to compel everyone else to believe as well.”

The real-world stakes in the dispute are considerable. More than 43 million U.S. residents were born somewhere else, and most of the rest are descended from immigrants. Still, for more than two centuries, waves of migration have provoked backlashes from Americans worried about the nation’s economy, culture and social makeup.

Among economists today, there is little controversy about the benefits of immigration for the economy as a whole. A roughly 500-page assessment last year by the National Academies of Sciences, Engineering, and Medicine, which reviewed decades of research, concluded that immigrants are “integral to the nation’s economic growth” and have little or no effect on overall employment and earnings for workers already in the U.S.

A Cuban refugee rests on his cot in Miami’s ‘tent city,’ Aug. 18, 1980. At the time, five out of every six working-age Cuban refugees in Florida’s Dade County were without a job.PHOTO: ASSOCIATED PRESS

The report said that experiences aren’t the same for everyone and noted that some studies have found “sizable negative short run wage impacts” for U.S.-born high-school dropouts, the group most likely to compete for work with low-skilled immigrants.

“There’s no free lunch. There’s going to be some effect of immigration” on wages, said Pia Orrenius, a senior economist at the Federal Reserve Bank of Dallas and a member of the panel that wrote the 2016 report. But, she added, the flexible U.S. economy adapts and should render any hit to the wages of native workers “a short-run phenomenon.”

Those most exposed to competition from new arrivals have long been a focus for Dr. Borjas. “Immigration is not like manna from heaven,” he said. “It can be great on average, but it doesn’t mean that every single person benefits.”

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Read the entire article at the link.

First, I find it interesting that Dr. Borjas, who came here as an immigrant, seems so highly motivated to prove that those who came after him weren’t as “worthy.” Sort of a “I’m OK, but you guys not so much” approach.

Second, none of these studies seem to go into the human element of immigration. What were to forces that drove the Marielitos to come? What have they accomplished in the long run? Did Americans in low wage jobs in Miami really sink into poverty and go on welfare, or did they just move on to other types of work that perhaps paid more?

Third, why don’t economists spend less time on analyzing the past and more time on figuring out how to minimize or avoid any adverse effects of immigration, even if those effects are only short-term and unequally distributed across the working population.

Fourth, I was at the “Legacy INS” during the boatlift and was involved in an intense effort to stop it. We used arrests, mass detention, vessel seizures, fines, criminal prosecutions, deterrents, warnings and public service announcements, and exclusion proceedings. But, frankly, nothing really worked until Castro closed the port of Mariel again. The Cuban Adjustment Act, which is still in effect, also made it difficult or impossible to return Cubans who had no prior criminal records.

Eventually, the Reagan Administration came up with controversial policy of high seas interdiction, which has been used in the Caribbean to some extent by every succeeding Administration. Although interdiction survived Supreme Court review, it has criticized by many and is inconsistent with at least the spirit, if not the letter, of the UN Convention and Protocol, to which we are a party. I doubt, however, that interdiction could have stopped the Cuban boat lift, given the large number of boats and American citizens of Cuban descent who participated in going to Mariel to transport relatives, friends, or former neighbors or co-workers who wanted to leave Cuba.

Fifth, and finally, I find the Mariel Boatlift to be one of the “major events” of modern U.S. refugee history. It has left a legacy of four enforcement strategies that are still with us today:

* The use of long-term mass civil immigration detention as a deterrent;

* High seas interdiction;

* Overall negative vibes and case law on asylum applicants who are part of a so-callled “mass migration situation” (“Scarface Syndrome,” a reference to the Al Pacino movie about a Cuban drug kingpin who used the boatlift to get a foothold in the U.S.);

* A belief that the case-by-case adjudication procedures established by the Refugee Act of 1980 are inadequate to handle mass migrations (probably one of the origins of “expedited removal” procedures).

PWS

06-18-17

WashPost: GANGS — A Complicated Problem With No Easy Solution — Budget Cuts Undermine Some Local Programs!

https://www.washingtonpost.com/local/public-safety/ms-13-gains-recruits-and-power-in-us-as-teens-surge-across-border/2017/06/16/aacea62a-3989-11e7-a058-ddbb23c75d82_story.html?hpid=hp_rhp-top-table-main_ms-13-1240pmm%3Ahomepage%2Fstory&utm_term=.5745c22fb3d0

Michael E. Miller, Dan Morse, and Justin Jouvenal report:

“The increasing MS-13 violence has become a flash point in a national debate over immigration. President Trump and Attorney General Jeff Sessions have vowed to eradicate the gang, while immigrant advocates say the young people are being scapegoated to further an anti-immigrant agenda.

Danny’s case illustrates just how difficult the balance between compassion and safety can be. Was he a child who needed help? Or a gang member who shouldn’t have been here?

“Do you close the doors to all law-abiding folks who just want to be here and make a better life . . . and in the process keep out the handful who are going to wreak havoc on our community?” asked one federal prosecutor, who is not permitted to speak publicly and has handled numerous MS-13 cases. “Or do you open the doors and you let in good folks and some bad along with the good?”

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Read the entire, much longer, article at the link.

it does seem short sighted to save a few bucks by cutting some of the few programs specifically designed to address this issue.

PWS

06-16-17

FAILED DUE PROCESS VISION: BIA Blows Off IJ’s Due Process Violations — Third Circuit Blows Whistle On BIA! — Serrano-Alberto v. Attorney General — READ MY “CONTINUING CRITIQUE” OF THE BIA’S FAILURE TO PROTECT THE RIGHTS OF ASYLUM SEEKERS!

http://www2.ca3.uscourts.gov/opinarch/153146p.pdf

PANEL: Circuit Judges VANASKIE, KRAUSE, and NYGAARD

OPINION BY: Judge Nygaard

“While in the vast majority of cases, IJs diligently comport with their constitutional and statutory obligations, and while it is only on rare occasion that we have held an IJ’s conduct crosses the line, the record here compels us to conclude this is one of those rare cases. Because we reach this conclusion against the backdrop of the three main cases to date in which we have distinguished between permissible and impermissible IJ conduct under the Due Process Clause, we will review each of those cases before addressing Serrano- Alberto’s claims for relief.

. . . .

What these cases teach us is that, where a petitioner claims to have been deprived of the opportunity to “make arguments on his or her own behalf,” Dia, 353 F.3d at 239, there is a spectrum of troubling conduct that is fact-specific and must be evaluated on a case-by-case basis to determine if (1) the petitioner “was prevented from reasonably presenting his case[,] and (2) . . . substantial prejudice resulted,” Fadiga, 488 F.3d at 155 (internal quotation marks omitted). At one end of the spectrum, the “lack of courtesy,” “interject[ions]” to clarify and develop the record, and “annoyance and dissatisfaction with . . . testimony” in Abdulrahman, 330 F.3d at 597, were not sufficient to establish a due process claim. At the other end, the “contemptuous tone,” focus on “issues irrelevant to” the petitioner’s claims, and findings unsupported by the record in Wang, 423 F.3d at 270, and the “wholesale nitpicking,” “continual[] abuse[]” and “belligerence,” and “interrupt[ions] . . . preventing important

parts of [the petitioner’s] story from becoming a part of the record,” in Cham, 445 F.3d at 691, 694, were flagrant enough to violate due process. Where these component parts of an IJ’s conduct are sufficiently egregious, at least in combination, a petitioner’s procedural due process rights are violated.

In Serrano-Alberto’s case, we conclude the IJ’s conduct falls on the impermissible end of the spectrum. Indeed, the IJ’s conduct here shares many of the attributes of the conduct we found unconstitutional in Wang and Cham, including a hostile and demeaning tone, a focus on issues irrelevant to the merits, brow beating, and continual interruptions. See supra Sec. III.B. And in contrast to Abdulrahman where the interruptions assisted the petitioner in answering questions and appropriately refocused the hearing, 330 F.3d at 596-98, the IJ’s interruptions here repeatedly shut down productive questioning and focused instead on irrelevant details, see supra Sec. III.B.”

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On the “plus side,” the Third Circuit went out of its way to point out that this case is the exception rather than the rule with respect to Immigration Judges’ respect for due process during the hearing process.

But, on the negative side, why should a supposedly “expert” Board whose mission is to protect due process be letting clearly unfair adjudications like this, which violate due process, get by? Not everybody can afford to go to the Court of Appeals. So, the Board’s failure to carry out its due process functions can actually cost lives, or at least ruin them. How can such a critically important function as appellate immigration judging be treated so dismissively, inappropriately, incompetently, and lackadaisically by successive Administrations while largely escaping critical public examination of its often highly questionable jurisprudence?

In my view, as I’ve observed before, part of the problem lies with the BIA’s overall negative approach to asylum seekers, particularly those from Central America with claims based on “particular social groups.” With a “closed, inbred judiciary” drawn almost exclusively from Government, a highly politicized Department of Justice which is unqualified to run a court system, and the fear of another “Ashcroft purge” hanging over them for judging independently and protecting the rights of asylum seekers, the BIA has basically “tanked” on its duty to guarantee fairness, due process, and protection to asylum seekers. So, if the BIA is unwilling to speak up for the due process and substantive rights of respondents, what’s its purpose? To provide a “veneer of deliberation and due process” to dissuade the Article III courts and the public from digging into the details to find out the real problems?

It’s also interesting that the Third Circuit “calls out” the BIA for a standard practice of using (often bogus) “nexus” denials to deny protection to asylum applicants who fit within a protected ground and can clearly demonstrate a likelihood of harm upon return. Check out FN 5 in the Third Circuit’s opinion:

“5 In a number of recent cases, the BIA likewise has assumed a cognizable PSG or imputed political opinion and disposed of the appeal by finding no nexus. See, e.g., Bol- Velasquez v. Att’y Gen., No. 15-3098 (3d Cir. filed Aug. 28, 2015) (ECF Agency Case Docketed); Bell v. Att’y Gen., No. 14-4781 (3d Cir. filed Dec. 18, 2014) (same); Santos v. Att’y Gen., No. 14-1050 (3d Cir. filed Jan. 8, 2014) (same); Ulloa- Santos v. Att’y Gen., No. 12-2781 (3d Cir. filed June 25, 2012) (same); Orellana-Garcia v. Att’y Gen., No. 12-2099 (3d Cir. filed Apr. 20, 2012) (same). This practice, however, can have troubling consequences. First, it places the analytical cart before the horse in cases like this one, where the very definition of the PSG is then at issue, for denying relief based on the absence of a nexus begs the question: nexus to what? See, e.g., Bol-Velasquez, No. 15-3098. Even the Attorney General has observed “it would be better practice for Immigration Judges and the Board to address at the outset whether the applicant has established persecution on account of membership in a [PSG], rather than assuming it as the Board did here. Deciding that issue—and defining the [PSG] of which the applicant is a part—is fundamental to the analysis of which party bears the burden of proof and what the nature of that burden is.” Matter of A-T-, 24 I. & N. Dec. 617, 623 n.7 (U.S. Att’y Gen. 2008). Second, even where the PSG definition is undisputed—so that the BIA would certainly have discretion to conclude that the efficiency of assuming a given PSG weighs in favor of resolution at the nexus stage—a reflexive practice of simply assuming a PSG has been established and is cognizable does not account for the very real benefits on the other side of the scale. Just as the Supreme Court has observed in the qualified immunity context, adjudication at every step is generally “necessary to support the Constitution’s ‘elaboration from case to case’ and to prevent constitutional stagnation” because “[t]he law might be deprived of this explanation were a court simply to skip ahead,” Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009) (holding the two-step protocol announced in Saucier v. Katz, 533 U.S. 194 (2001) is no longer mandatory “but often beneficial”), so here, the BIA’s practice of assuming PSG and resolving cases on nexus grounds often inhibits the proper and orderly development of the law in this area by leaving the contours of protected status undefined, precluding further appellate review under the Chenery doctrine, see SEC v. Chenery Corp., 332 U.S. 194 (1947), and ultimately generating additional needless litigation because of the uncertainty in this area, see Valdiviezo-Galdamez, 663 F.3d at 594-609; Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir. 1993); Matter of M-E-V-G-, 26 I. & N. Dec. 227, 230 (BIA 2014). This is a case in point, where the IJ articulated the relevant PSG as “individuals perceived as wealthy who refuse to pay gang taxes,” App. 17, although other definitions were reasonable, and the BIA, despite being presented with alternative formulations, declined to rule on the question altogether. In sum, for both of the reasons stated, we strongly encourage IJs and the BIA to define the PSG in question and to adjudicate the existence and cognizability of that PSG.”

Let’s get down to the real point. Largely because of intervention from Article III Courts, more and more “particular social groups” are becoming “cognizable.” This is particularly true in the area of family-based social groups.

Alternatively, the DHS and the BIA have tried to deny claims on the grounds that the foreign government is “not unable or unwilling to protect.” But, given the documented conditions in the Northern Triangle of Central America, such findings often don’t pass the “straight face test” and have had difficulty on judicial review. So the best way to deny protection to Central American asylum seekers is by developing metaphysical, largely bogus, findings of lack of “nexus.”

The answer to the Third Circuit’s question “nexus to what” is simple. It doesn’t matter. No matter what the protected group is in Central American cases, the BIA will do its best to find that no nexus exists, and encourage Immigration Judges to do likewise.

A vivid example of that was the BIA’s recent precedent inMatter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), discussed in earlier blogs. There, without dissent or meaningful discussion, the BIA “deconstructed” a clearly established case for nexus (which actually had been found by the Immigration Judge) and buried it under layers of impenetrable legal gobbledygook. Maybe it will get deference from the Article IIIs, maybe it won’t. There isn’t much consistency there either.

Asylum applicants lives are at stake in removal proceedings. They deserve a process where fairness, due process, and deep understanding of the life-preserving functions of protection law are paramount. Today’s system, which all too often runs on the principles of expediency, institutional preservation, job security, pleasing the boss, and sending law enforcement “messages” is failing those most in need. One way or another, our country and future generations will pay the price for this dereliction of duty.

PWS

06-13-17

NICHOLAS KULISH IN THE NYT: TORTURED IN VENEZUELA, HANDCUFFED BY ICE @ THE MIAMI ASYLUM OFFICE! — DHS Continues To Abuse Legal Authority, Clog Backlogged U.S. Immigration Courts! My Quote: “Why clog an already clogged court docket with a case that looks like a slam dunk?”

https://www.nytimes.com/2017/06/13/us/asylum-torture-venezuela.html

Nicholas reports:

“Marco Coello, then a skinny 18-year-old high school student, was grabbed by plainclothes agents of the Venezuelan security services as he joined a 2014 demonstration against the government in Caracas.

They put a gun to his head. They attacked him with their feet, a golf club, a fire extinguisher. They tortured him with electric shocks. Then Mr. Coello was jailed for several months, and shortly after his release, he fled to the United States.

Human Rights Watch extensively documented his case in a report that year. The State Department included him in its own human rights report on Venezuela in 2015. With such an extensive paper trail of mistreatment in his home country, his lawyer, Elizabeth Blandon, expected a straightforward asylum interview when Mr. Coello appeared at an immigration office this April in Miami.

“I had this very naïve idea that we were going to walk in there and the officer was going to say, ‘It’s an honor to meet you,’” said Ms. Blandon, an immigration law expert in Weston, Fla.

Instead, he was arrested and taken to a detention facility on the edge of the Everglades. He was now a candidate for deportation. “Every time they would move me around, I would fear that they were going to take me to deport me,” said Mr. Coello, now 22.

Mr. Coello’s case drew extensive media coverage in both Miami and Caracas and, eventually, the intervention of Senator Marco Rubio of Florida. The senator helped secure Mr. Coello’s release, though he could still be deported.

The case may have been a sign of just how far the government is willing to go to carry out President Trump’s crackdown on illegal immigration.

“It’s very unusual — almost unprecedented — that ICE would arrest an asylum applicant who is at a U.S.C.I.S. office waiting for their asylum interview,” said Stephen Yale-Loehr, an immigration law professor at Cornell Law School.”

***********************************************

Just because arresting individuals believed to be in the U.S. without authorization is legal doesn’t mean that it’s not stupid or wasteful in many cases. Cases like this belong in the Asylum Office.

In a well-functioning system, Mr. Coello likely would have been granted asylum following his interview. Instead, he’s on an already overcrowded U.S. Immigration Court docket with a merits hearing scheduled for approximately one year from now.

What does the U.S. gain from these types of wasteful enforcement actions? What message are we sending to Mr. Coello and others who will eventually become full members of our society? What kind of messages are we sending to Venezuela and those attempting to escape from some of the world’s most brutal governments?

Read Nicholas’s complete report, which contains more quotations from me and others, at the above link.

PWS

06-13-17

Not So Fast, My Friends! — Border Intrusions Increase In May N/W/S Administration’s (Perhaps Premature) “Victory Dance!”

http://m.washingtontimes.com/news/2017/jun/11/illegal-immigration-across-southwest-border-increa/

Stephen Dinan reports in the Washington Times:

“Illegal immigration across the southwest border appears to have jumped 27 percent in May, according to numbers released this week by Homeland Security, breaking a three-month streak of declines under President Trump and suggesting that the slump in migrants has bottomed out.

The Border Patrol nabbed 14,535 illegal immigrants in the southwest last month, up from just 11,129 in April. Analysts said that the number of people caught is a rough measure of the overall flow of people trying to sneak in.

The number of illegal immigrants showing up at ports of entry without authorization also ticked up, from 4,649 to 5,432.

U.S. Customs and Border Protection, the agency that oversees the Border Patrol and the ports of entry, acknowledged the increase in crossings, but attributed it to “a seasonal uptick.”

CBP said it “expects the uptick to continue” through the summer months.

The numbers suggest that while Mr. Trump appears to have changed the calculations of many border crossers, there’s still a segment of the population — particularly among Central Americans — determined to make the journey.

Agents usually record an uptick from April to May, but the jump this year is the largest on record.

Still, it’s by far the lowest May total on record. For example, May 2016 saw more than 40,000 illegal immigrants caught at the border.

Illegal immigration from Cuba and Haiti had been a problem last year, but had dipped under the final months of President Obama and again under Mr. Trump.

Now, Cubans appear to be surging again, while Haitians remain low.

Two other special categories of migrants — unaccompanied minors and families traveling together — also saw increases last month, rising from a combined 2,117 nabbed by the Border Patrol in April to 3,070 in May.”

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We should also keep in mind that according to other recent reports, the largest flow of asylum applicants is now from Venezuela. Most of them are middle class and business-oriented individuals who already have visas enabling them to enter the U.S. legally. Once admitted, they can apply for asylum at any time during the first year following entry. Such individuals would not show up in any of the border or port of entry statistics.

PWS

06-12-17

Venezuela Now Tops List Of Asylum Sending Countries!

http://www.cnn.com/2017/06/11/us/venezuela-asylum-seekers-us/index.html

Marilia Brocchetto, Polo Sandoval and Jaide Timm-Garcia report for CNN:

“(CNN)The decision to come to the United States wasn’t an easy one. Carolina, a 33-year-old mother of three, said it was perhaps one of the toughest decisions of her life — one taken after many sleepless nights in her Barquisimeto, Venezuela, apartment.

Holding back tears, she remembers a night spent on the floor. She huddled with her three kids, praying, as Venezuelan government forces fiercely clashed with protesters outside her apartment walls. In the streets anti-government protesters demanded Venezuelan President Nicolas Maduro step down. Their protests were met with tear gas, water cannons, and rubber bullets. During that night of April 11, three Venezuelans would die in the Barquisimetoarea.

“The hardest moments happened on the last days,” Carolina said. Carolina is not her real name. She has asked to remain anonymous for fear of retaliation against her family in Venezuela.

Carolina says she got emotional the first time she visited an American supermarket. One of the first things she bought was candy for her children.

Sitting in a metro Atlanta shopping area, she talks of an entire life left behind. The boutique she owned with her husband. The social events she organized. She remembers her family — her uncle who’s currently recovering from a stroke and her grandmother, in her 80’s, who has no one to care for her.

“One day I called her and she told me all she had to eat was rice and butter.”

Venezuela has been plagued by food shortages and soaring prices. Inflation levels are in the triple digits. In 2016, the average Venezuelan living in extreme poverty lost about 19 pounds due to the lack of food. Many of its citizens had to skip meals, according to a national poll.

People have demanded president Maduro step down and hold elections. Protests have stretched into a third month, resulting in nearly 70 deaths.

Carolina, her husband and their three kids will soon be joining the growing number of Venezuelans seeking asylum in the United states. Venezuelans are now the top asylum seekers in the US, ahead of citizens from China, Mexico, Guatemala and El Salvador. It’s the first time Venezuelans have topped the list.

Carolina sold her business and her car in Venezuela and used the money to buy plane tickets for her family. The leftover money was rationed out to buy a small car and for a deposit on an apartment.

“We know we are starting from zero” she said, “it is a very difficult time and I have a lot of sadness in my heart for the things I left behind in Venezuela, but for my children, it is all worth it.”

Carolina and her family have been in the United States for less than a month. Once they file their asylum applications, Carolina and her husband will then need to wait 150 days before they can request a work permit.

In the meantime, she said she stays up at night talking to her husband about money, and how little of it they have left.

He played on amidst the chaos of protests – until cops broke his violin

However, Carolina knows her family is lucky to have had the tourist visas that allowed them to come into the US.”

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Read the complete story with more “individual portraits” at the link. This shows another hole in the Trump “border deterrence” theory: most Venezuelans enter the US legally and apply for asylum later on. I had predicted some time ago that Venezuela’s abusive leftist government would soon collapse what had been one of the Hemisphere’s more prosperous and resource rich countries, scattering hundreds of thousands of refugees throughout the Americas!

But, of course, advance planning with other nations for a humanitarian response to refugee emergencies is beyond this Administration. They just keep spouting enforcement and detention, the same failed, yet expensive, so-called “strategies” that have been unsuccessfully tried over and over for the past 50 years.

PWS

06-11-17

UW Law Looking For Immigrant Justice Clinic Director!

http://jobs.hr.wisc.edu/cw/en-us/job/495278/immigrant-justice-clinic-director

Click the link for full details. Great opportunity for a bilingual immigration attorney who wants to get into clinical teaching at a terrific school in a super city. Unlike many of today’s law schools, UW Law is located on Bascom Hill in the “heart” of the Main Campus with a view of the Capitol dome! Madison has to be one of the best places to live in the US.

While the initial appointmeet is for one year, based on performance, creativity, and ability to inspire funding, the position has longer term potential!

And, as an extra bonus, if you get the job, I’ll drop by at some mutually convenient time and give your students a “guest lecture.” Preferably right before a Badger home football or basketball game!

Thanks to Professor Alberto Benítez of the GW Law Immigration Clinic for sending this my way.

PWS

06-09-17

AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS — Read My Keynote Speech FromThe Pennsylvania Immigration Resource Center’s “Light Of Liberty Awards” Ceremony Last Night!

AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATON COURTS

Keynote Address by

Paul Wickham Schmidt

United States Immigration Judge (Retired)

LIGHT OF LIBERTY AWARDS

Pennsylvania Immigration Resource Center

Heritage Hills Golf Resort

York, PA

JUNE 7, 2016

I. INTRODUCTION

Good evening. Thank you so much for inviting me to speak at this wonderful event. I’m honored to be here. The PIRC is a terrific organization that provides critical legal services to the most vulnerable during one of the most difficult periods in our recent history.

The York area has a well-established tradition of humanitarian generosity and support for the most needy that was highlighted during the Golden Venture episode and described in the book Snakehead. I learned today that PIRC was formed to respond to the needs of the Golden Venture detainees. The U.S. Immigration Court in York has one of the highest representation rates for detained individuals in the nation, over 50%.

By contrast, the Arlington Immigration Court, where I used to sit, and the Baltimore Immigration Court had detained representation rates of around 20% and 10% respectively. And, it’s even worse in other parts of the country.

Back in February, I had the pleasure of working with your amazing Executive Director, Mary Studzinski, at a group session directed at improving training for non-attorney representatives authorized to practice before the U.S. Immigration Courts and the Board of Immigration Appeals. We bonded instantly. That’s “human bonding” rather than “immigration bonding,” of course. Mary’s kinetic energy, practical knowledge, tremendous dedication, and incisive contributions to the group were simply stunning. I must admit, I thought she was the Managing Attorney of the organization until she explained her role to me. You are so fortunate to have of someone who cares so deeply about your mission leading you. Mary is just what America needs right now.

Speaking of what America needs, I of course want to be the first to congratulate the five extraordinary individuals and two groups we are honoring tonight with well-deserved “Light of Liberty” Awards. Your energy, knowledge, and willingness to give of yourselves to others is making a much needed positive difference in this community and in our world. Each of you is indeed changing the course of history for the better. And, I’m pleased to announce that I have bestowed on each of tonight’s award recipients the rank of “General” in the “New Due Process Army. “

And, of course, thanks again to our great sponsors, mentioned by Mary, for supporting PIRCV and tonight’s awards.

II. THE DUE PROCESS CRISIS IN IMMIGRATON COURT

As most of you in this room probably recognize, there is no “immigration crisis” in America today. What we have is a series of potentially solvable problems involving immigration that have been allowed to grow and fester by politicians and political officials over many years.

But, there is a real crisis involving immigration: the attack on due process in our U.S. Immigration Courts that have brought them to the brink of collapse. I’m going to tell you seven things impeding the delivery of due process in Immigration Court that should be of grave concern to you and to all other Americans who care about our justice system and our value of fundamental fairness.

First, political officials in the last three Administrations have hijacked the noble mission of the U.S. Immigration Courts. That vision, which I helped develop in the late 1990s, is to “be the world’s best administrative tribunals guaranteeing fairness and due process for all.”

Instead, the Department of Justice’s ever-changing priorities, aimless docket reshuffling, and morbid fascination with increased immigration detention as a means of deterrence have turned the Immigration Court system back into a tool of DHS enforcement. Obviously, it is past time for an independent U.S. Immigration Court to be established outside the Executive Branch.

Second, there simply are not enough pro bono and low bono attorneys and authorized representatives available to assist all the individuals who need representation in Immigration Court. As I mentioned, this problem is particularly acute in detention courts. We know that representation makes a huge difference. Represented individuals succeed at rates four to five times greater than unrepresented individuals.

There have been a number of studies documenting the substandard conditions in immigration detention, particularly those run by private contractors, which in some cases prove deadly or debilitating. Some of these studies have recommended that immigration detention be sharply reduced and that so-called “family detention” be discontinued immediately.

A rational response might have been to develop creative alternatives to detention, and to work closely with and support efforts to insure access to legal representation for all individuals in Removal Proceedings. Instead, the response of the current Administration has been to “double down” on detention, by promising to detain all undocumented arrivals and to create a new “American Gulag” of detention centers, most privately run, along our southern border, where access to attorneys and self-help resources is limited to non-existent.

Third, the Immigration Courts have an overwhelming caseload. Largely as a result of “aimless docket reshuffling” by Administrations of both parties, the courts’ backlog has now reached an astounding 600,000 cases, with no end in sight. Since 2009, the number of cases pending before the Immigration Courts has tripled, while court resources have languished.

The Administration’s detention priorities and essentially random DHS enforcement program are like running express trains at full throttle into an existing train wreck without any discernable plan for clearing the track!” You can read about it in my article in the latest edition of The Federal Lawyer.

Fourth, the immigration system relies far too much on detention. The theory is that detention, particularly under poor conditions with no access to lawyers, family, or friends, will “grind down individuals” so that they abandon their claims and take final orders or depart voluntarily. As they return to their countries and relate their unhappy experiences with the U.S. justice system, that supposedly will “deter” other individuals from coming.

Although there has been a downturn in border apprehensions since the Administration took office, there is little empirical evidence that such deterrence strategies will be effective in stopping undocumented migration in the long run. In any event, use of detention, as a primary deterrent for non-criminals who are asserting their statutory right to a hearing and their constitutional right to due process is highly inappropriate. Immigration detention is also expensive, and questions have been raised about the procedures used for awarding some of the contracts.

Fifth, we need an appellate court, the Board of Immigration Appeals, that functions like a real court not a high-volume service center. Over the past decade and one-half, the Board has taken an overly restrictive view of asylum law that fails to fulfill the generous requirements of the Supreme Court’s landmark decision in Cardoza-Fonseca and the Board’s own precedent in Matter of Mogharrabi. The Board has also failed to take a strong stand for respondents’ due process rights in Immigration Court.

Largely as a result of the Board’s failure to assert positive leadership, there is a tremendous discrepancy in asylum grant rates – so-called refugee roulette.” Overall grant rates have inexplicably been falling. Some courts such as Atlanta, Charlotte, and some other major non-detained courts have ludicrously low asylum grant rates, thereby suggesting a system skewed, perhaps intentionally, against asylum seekers. Perhaps not coincidentally, the Board has become totally “government-dominated” with no member appointed from the private sector this century.

Sixth, the DOJ selection process for Immigration Judges and BIA Members has become both incredibly ponderous and totally one-sided. According to a recent GAO study, it takes on the average nearly two years to fill an Immigration Judge position. No wonder there are scores of vacancies and an unmanageable backlog!

And, it’s not that the results of this glacial process produce a representative immigration judiciary. During the Obama Administration, approximately 88% of the Immigration Judge appointments came directly from government backgrounds. In other words, private sector expertise has been almost totally excluded from the 21^st Century immigration judiciary.

Seventh, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an “amateur night” aura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court.

III. ACTION PLAN

Keep these thoughts in mind. Sadly, based on actions to date, I have little hope that Attorney General Sessions will support due process reforms or an independent U.S. Immigration Court, although it would be in his best interests as well as those of our country if he did. However, eventually our opportunity will come. When it does, those of us who believe in the primary importance of constitutional due process must be ready with concrete reforms.

So, do we abandon all hope? No, of course not! Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns, my former students, and those who have practiced before the Arlington Immigration Court.

They form what I call the “New Due Process Army!” And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of “guaranteeing fairness and due process for all!”

What can you do to get involved now? The overriding due process need is for competent representation of individuals claiming asylum and/or facing removal from the United States. Currently, there are not nearly enough pro bono lawyers to insure that everyone in Immigration Court gets represented.

And the situation is getting worse. With the Administration’s expansion of so-called “expedited removal,” lawyers are needed at earlier points in the process to insure that those with defenses or plausible claims for relief even get into the Immigration Court process, rather than being summarily removed with little, if any, recourse.

Additionally, given the pressure that the Administration is likely to exert through the Department of Justice to “move” cases quickly through the Immigration Court system with little regard for due process and fundamental fairness, resort to the Article III Courts to require fair proceedings and an unbiased application of the laws becomes even more essential. Litigation in the U.S. District and Appellate Courts has turned out to be effective in forcing systemic change. However, virtually no unrepresented individual is going to be capable of getting to the Court of Appeals, let alone prevailing on a claim.

Obviously, the PIRC is a fantastic way to contribute to assertively protecting the due process rights of migrants. Internships and JLC positions at the Immigration Courts are also ways for law students and recent law grads to contribute to due process while learning.

As mentioned earlier, Mary and I have been working with groups looking for ways to expand the “accredited representative” program, which allows properly trained and certified individuals who are not lawyers to handle cases before the DHS and the Immigration Courts while working for certain nonprofit community organizations, on either a staff or volunteer basis. The “accredited representative” program is also an outstanding opportunity for retired individuals, like professors, teachers, and others who are not lawyers but who can qualify to provide pro bono representation in Immigration Court to needy migrants thorough properly recognized religious and community organizations.

Even if you are a lawyer not practicing immigration law, there are many outstanding opportunities to contribute by taking pro bono cases. Indeed, in my experience in Arlington, “big law” firms were some of the major contributors to highly effective pro bono representation. It was also great “hands on” experience for those seeking to hone their litigation skills.

Those of you with language and teaching skills can help out in English Language Learning programs for migrants. I have observed first hand that the better that individuals understand the language and culture of the US, the more successful they are in navigating our Immigration Court system and both assisting, and when necessary, challenging their representatives to perform at the highest levels. In other words, they are in a better position to be “informed consumers” of legal services.

Another critical area for focus is funding of nonprofit community-based organizations, like PIRC, and religious groups that assist migrants for little or no charge. Never has the need for such services been greater.

Many of these organizations receive at least some government funding for outreach efforts. We have already seen how the President has directed the DHS to “defund” outreach efforts and use the money instead for a program to assist victims of crimes committed by undocumented individuals.

Undoubtedly, with the huge emphases on military expansion and immigration enforcement, to the exclusion of other important programs, virtually all forms of funding for outreach efforts to migrants are likely to disappear in the very near future. Those who care about helping others will have to make up the deficit. So, at giving time, remember your community nonprofit organizations that are assisting foreign nationals.

Finally, as an informed voter and participant in our political process, you can advance the cause of Immigration Court reform and due process. For the last 16 years politicians of both parties have largely stood by and watched the unfolding due process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

The notion that Immigration Court reform must be part of so-called “comprehensive immigration reform” is simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. It’s time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

IV. CONCLUSION

In conclusion, I have shared with you the U.S. Immigration Court’s noble due process vision and the ways it currently is being undermined and disregarded. I have also shared with you some of my ideas for effective court reforms that would achieve the due process vision and how you can become involved in improving the process. Now is the time to take a stand for fundamental fairness! Join the New Due Process Army! Due process forever!

Thanks again for inviting me and for listening. Congratulations again to our award winners and newly commissioned Generals of the New Due Process Army.

(06-08-17)

*******************************************

Congratulations to these Light of Liberty Awards winners and newly commissioned Generals in the New Due Process Army:

ATTORNEY OF THE YEAR:

Rosina Stambaugh, Esquire

LAW FIRM OF THE YEAR

Asylum & Human Rights Clinic, University of Connecticut School of Law

CONTINUING COMMITMENT TO JUSTICE INDIVIDUAL:

Professor Jill Family,

Widener University Delaware Law School

INTERPRETER OF THE YEAR

Rosalyn Groff

COMMUNITY VOLUNTEER OF THE YEAR:

Dr. Anne Middaugh

CONTINUING COMMITMENT TO JUSTICE ORGANIZATION:

Philadelphia Bar Foundation

VOICE OF COURAGE:

Josia Nunes

Out in the audience was superstar lawyer/social worker Hannah Cartwright, a “Charter Member” of the New Due Process Army, now on the legal staff at the PIRC. Hanna, a distinguished Catholic University Law grad, served as a Legal Intern at the Arlington Immigration Court and a Judicial Law Clerk at the Philadelphia Immigration Court.

Pictures and other news from this wonderful event to follow.

PWS

06-08-17

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