"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Lindsay Toczylowski Executive Director, Immigrant Defenders “ I always tell the new immigration attorneys at Immigrant Defenders Law Center to never forget just how stacked against our clients the odds are in immigration court.“
Toczylowski is executive director of Immigrant Defenders Law Center, a nonprofit legal organization working along the U.S.-Mexico border and throughout Southern California, and lives in Los Angeles.
The lifting of Title 42 — the policy that shut down the U.S. asylum system for three years — should have been an inflection point leading to a more humane and orderly system for processing asylum seekers. Instead, the Biden administration doubled down on the politics of exclusion, introducing new restrictive measures, including an asylum ban, that keep asylum out of reach for those who need protection the most.
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When asylum seekers are finally able to ask for protection, they are often met not with compassion but with cruelty. Just days ago in San Ysidro, I saw mothers with children sleeping on dirt while in Customs and Border Protection custody, sharing one port-a-potty for more than 500 people. Good Samaritans handed out supplies because CBP did not provide sufficient food, water or medicine.
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President Biden has perpetuated these failed deterrence policies despite his campaign promises to restore humanity at our border. The administration has turned its back on asylum seekers. These are real people. They deserve our protection. They deserve to be safe.
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Read Lindsay’s complete op-ed at the link.
These cruel, unnecessary, cowardly, and illegal policies are a disgrace to America and an embarrassment to the Democratic Party!
You don’t have to be either an immigration expert or very smart to recognize that desperate individuals trying to turn themselves in to CBP agents at or near the border, to exercise their legal rights to seek protection, are NOT going to be a meaningful source of fentanyl smuggling. That trade is controlled by cartels who basically smuggle product through ports of entry in large quantities disguised as or mingled with legitimate commercial commerce.
Indeed, the preoccupation of CBP with improperly “deterring,” “discouraging,” and “punishing” legal asylum seekers not only empowers cartels, but significantly detracts from actual law enforcement against drug smugglers. And, the millions of dollars being misappropriated and wasted by Junkman and others on bogus National Guard deployments could much better and more appropriately be spent on humanitarian aid, coordinated, orderly resettlement programs for asylum seekers and asylees, and securing them legal representation to aid in the fair and timely processing of asylum claims.
However, the repetition of bogus and deliberately fabricated narratives like the “Junkman’s” latest wasteful stunt creates a “guilt by repetition” syndrome that feeds and enables the racist agenda of today’s GOP as well as the spineless “rollover” response of the Biden Administration, and, sadly, some other so-called Democrats.
PROSECUTORIAL HISTORY: In 897, at the “Cadaver Synod,” Pope Stephen VI appointed himself to prosecute the corpse of his dead predecessor, Pope Formosus. (Spoiler alert: He got a conviction.) In 2023, DHS has decreed that prosecuting cases in person before EOIR is no longer worth their valuable time. PAINTING: Jean-Paul Laurens (1870) —Public Realm
Provided by a veteran immigration practitioner:
DHS No Appear 1DHS No Appear 2
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Notably, the four categories of “mandatory appearance” described by the Deputy Chief Counsel apply to only an infinitesimally small percentage of the roughly 2 million cases currently pending before the Immigration Courts.
Compare this with the treatment of the private bar who experience:
* Aimless reshuffling and rescheduling of their already-prepared cases, often without notice or with inadequate notice of the new hearing date;
* Arbitrary and capricious denials by some Immigration Judges of reasonable motions to continue;
* Possible disciplinary referrals for failure to appear at a scheduled hearing when listed as counsel of record.
Would the DOJ submit a similar missive to U.S. District Court Judges unilaterally announcing that they would only “selectively appear” in criminal and civil cases where the U.S. Government is a party? I doubt it!
So, what’s an Immigration Judge who does not want to perform DHS’s job for them to do? Contempt of court, you say? After all, the IJ’s authority to hold any party or counsel in Immigration Court proceeding in contempt is right there in plain language in the INA. See, INA section 240(b)(1).
Ah, but there is a catch! A big one! Although the contempt provision was added by Congress more than a quarter of century ago, AGs of both parties have steadfastly refused to promulgate the necessary implementing regulations.
Evidently, the theory is that while IJs might be qualified to issue potential death sentences to migrants in Immigration Court, they can’t be trusted to fairly and reasonably use their contempt authority on lawyers who, after all, are mostly U.S. citizens and whose livelihood might be adversely affected. Essentially, the life of a migrant is worth less than a monetary fine for contempt to a U.S. lawyer.
Additionally, there apparently was a special concern about giving IJ’s authority to regulate the conduct of their “fellow Government attorneys” at INS, and later DHS. After all, that would be interfering with another Government agency’s “sacrosanct” authority to regulate and discipline (or not) its own employees.
In many ways, under Garland, the Immigration Courts are losing what limited public respect the might still have possessed and accelerating the move backwards to an “inquisitorial model” to replace the “adversary model” for decison-making. Ironically, this reverses over a half century of efforts by Congress, reformers, and sometimes the Executive itself to make Immigration Courts function as part of the adversary system — in other words, like “real” courts of law.
As one informed expert commenter stated upon learning of this latest development:
As we have all been saying, (1) EOIR doesn’t view itself as part of an ecosystem which also includes ICE, the private bar, non-profits, law school clinics, interpreters, USCIS, etc.; and (2) EOIR is run at it’s upper level by mindless, gutless people suffering from a complete lack of imagination existing in a bubble.
As a practical matter, I assume ICE is strategically choosing not to appear in hearings before IJs who deny everything? If not, it could actually work in your favor. In truth, the UNHCR model doesn’t envision asylum being heard in adversarial hearings; as Paul has articulately stated, it sees asylum as a collaborative effort between adjudicator and asylum seeker.
For a “practical application” of the “collaborative effort” model promoted by the UNHCR, see Matter of S-M-J-, 21 I&N Dec. 722 (BIAS 1997).
Joshua Mutshaila slept in a shelter when he first arrived in Portland. Now he is studying political science at the University of Southern Maine.
Claudette Ndayininahaze could only get a cleaning job during her first years in Maine, despite extensive work experience and a degree in business administration. Now she runs a nonprofit to try to smooth the transition for other immigrant women and families.
Apphia Kamanda was one of the first students at Common Threads of Maine, a nonprofit that teaches skills needed for textile jobs. Now she leads the sewing school and teaches classes in multiple languages.
David Ngandu worked as a doctor in the Democratic Republic of Congo. He’s trying to be one again here.
They are among thousands of African immigrants who – often at great personal risk – fled perils they knew all too well at home for an uncertain future in this country. They settled in Maine, a state with a population that is 94% white and the nation’s oldest, and where businesses are increasingly struggling to find workers. They got multiple jobs, but their skills were still underutilized. Slowly and painstakingly, they built new lives, while often looking for ways to help others who came after them. In turn, they brought new life to their communities.
The Press Herald talked to a diverse group of people who came here from Africa about how they see their futures in Maine – and Maine’s future with more immigrants in it.
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Read Megan’s complete article (last in a series) at the link.
Immigrants are a key part of Maine’s present and America’s future. There is a really great, positive, uplifting story out here to be told. Too bad that Biden Administration has such little interest in leading, promoting, and leveraging immigrant (asylum seeker) success and contributions. Huge “missed opportunity” for Dems!
Donald M. Kerwin, Senior Research Associate, University of Notre Dame
In forwarding this article, Don says: “The report makes the case that the backlog has nothing to do with the immigration courts and everything to do with systemic, unresolved problems in the broader US immigration system.”
The US immigration court system seeks to “fairly, expeditiously, and uniformly administer and interpret US immigration laws” (DOJ 2022a). It represents the first exposure of many immigrants to due process and the rule of law in the United States, and occupies an integral role in the larger US immigration system. Yet it labors under a massive backlog of pending cases that undermines its core goals and objectives. The backlog reached 1.87 million cases in the first quarter of FY 2023 (Straut-Eppsteiner 2023, 6). This paper attributes the backlog to systemic failures in the broader immigration system that negatively affect the immigration courts, such as:
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Visa backlogs, United States Citizen and Immigration Services (USCIS) application processing delays, and other bottlenecks in legal immigration processes.
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The immense disparity in funding between the court system and the Department of Homeland Security (DHS) agencies that feed cases into the courts.
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The failure of Congress to pass broad immigration reform legislation that could ease pressure on the enforcement and court systems.
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The lack of standard judicial authorities vested in Immigration Judges (IJs), limiting their ability to close cases; pressure parties to “settle” cases; and manage their dockets.
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The absence of a statute of limitations for civil immigration offenses.
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Past DHS failures to establish and adhere to enforcement priorities and to exercise prosecutorial discretion (PD) throughout the removal adjudication process, including in initial decisions to prosecute.
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The location of the Executive Office for Immigration Review (EOIR), which oversees US immigration courts, within the nation’s preeminent law enforcement agency, the Department of Justice (DOJ).
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The misconception of many policymakers that the court system should primarily serve as an adjunct to DHS.
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A past record of temporary judge reassignments and government shutdowns.
The paper supports a well-resourced and independent immigration court system devoted to producing the right decisions under the law. Following a short introduction, a long section on “Causes and Solutions to the Backlog” examines the multi-faceted causes of the backlog, and offers an integrated, wide-ranging set of recommendations to reverse and ultimately eliminate the backlog. The “Conclusion” summarizes the paper’s topline findings and policy proposals.
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This is a “treasure trove” of information about systemic failure of our Immigration Courts, for which I am deeply grateful to Don & Evin.
So, is EOIR a symptom or a cause of immigration dysfunction, or a mixture of both?
I’m inclined to believe that notwithstanding the evidence described in the article that EOIR is largely a “victim” of deeper problems in our immigration system, there is a strong case to be made that more principled Attorneys General, more courageous and talented EOIR personnel, and a Democratic Party with democratic values and a spine could have thrust EOIR into a due process and legal expertise leadership role, thereby making the current immigration system operate more fairly, efficiently, and in the public interest.
It’s a shame that we’ll never know the truth. That just leaves commentators and scholars to analyze the carnage and to speculate on “what might have been” or “what could be” in a different political atmosphere.
This is perhaps interesting, even significant, from an historical standpoint. But, the practical effect remains to be seen.
If I could have just one immigration “reform, it would be an Article I EOIR! Without due process, all other reforms and improvements are doomed to failure!
A bipartisan duo of Hispanic women Tuesday introduced the most robust immigration proposal to date this Congress, a significant collaborationas a new generation of lawmakers pushes for meaningful reform of the nation’s immigration systemafter decades of failed attempts.
For six months, Reps. Maria Elvira Salazar (R-Fla.) and Veronica Escobar (D-Tex.) have been quietly negotiating on key issues where Republican and Democrats have previously sought changes, while leaning on their lived experiences as lawmakers representing border districts with majority Hispanic constituencies.
The result is a roughly 500-page bill called the Dignity Act that, among other things, would provide billions of dollars for border security measures, create pathways to citizenship for some undocumented migrants already in the United States, update the legal immigration process, and establish “humanitarian campuses” on the U.S. border that would process asylum claims in 60 days.. . . . .
Salazar and Escobar were joined at a news conference Tuesday by four original co-sponsors who are all women: Reps. Hillary J. Scholten (D-Mich.), Kathy E. Manning (D-N.C.), Lori Chavez-DeRemer (R-Ore.) and Del. Jenniffer González-Colón (R-Puerto Rico.). Rep. Michael Lawler (N.Y.), a vulnerable Republican representing a Democratic-leaning district, signed onto the measure late Monday and also attended. Rep. Adriano Espaillat (D-N.Y.) also signed on Tuesday.
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The bill’s introduction comes after House Republicans passed a border security bill this month along party lines; House Republican leaders have said since last year that consideration of a large-scale immigrationoverhaul would not happen until a border security plan had passed the chamber.
Asked whether broad immigration legislation could be considered this year, Majority Leader Steve Scalise (R-La.) appeared to suggest last week that it would not happen until a border security plan is signed into law.
“We’ve got to first start with border security,” he said, before adding that it would mean getting such a bill to the president’s desk. “If we get that done, then you can start talking about the interior problems that exist.”
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“Nothing is off the table,” Salazar said when asked about the prospects of a discharge petition, a procedural effort that would allow them to bypass the regular pathway for a bill to reach the floor.
Escobar then responded, “All it takes to make this happen is 218 people in the House of Representatives saying that they’re ready for a real solution.”
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Read the complete article at the above link.
The myth that “border security” is unrelated to taking a more practical, humane, and realistic approach to migration generally shows how determined GOP leadership is NOT to address immigration problems in a fair and constructive manner and to “tune out” those interested in a potential bipartisan solution.
For those who don’t already know her, Rep. Hillary Scholten is, to my knowledge, the only EOIR attorney ever elected to Congress and has, therefore, seen how broken and in need of reform our system is at the “grass roots level.” So, her support of this measure is very significant.
Here’s a summary of the bill, known as “The Dignity Act of 2023:”
I haven’t seen the full text of the bill. But, from my perspective, the most disappointing aspect of this effort is the apparent failure to deal with the #1 most “solvable” and long, long overdue aspect of due process and fundamental fairness affecting immigration and the overall U.S. legal system: Creation of an independent, Article I U.S. Immigration Court focused solely on due process, fundamental fairness, and best practices!
Anna Marie Gallagher, Esquire Executive Director CLINIC PHOTO: CLINIC website
Executive Director Opening Plenary Remarks CLINIC Convening 2023
May 17, 2023
Good afternoon, dear friends. My name is Anna Gallagher and I have the honor of leading CLINIC as executive director. It is such a pleasure to be here with you all as we officially begin our first in-person Convening since 2019.
Looking out at the sea of faces in front of me, I am filled with gratitude to finally be able to come together to engage with one another, to listen, learn and gather strength for the work ahead in support of our immigrant brothers and sisters.
Even just being in your presence I feel a sense of renewed hope and energy. I am so looking forward to the next few days, and I am certain that you will be reignited to take on the important work ahead.
In a moment I will welcome our wonderful panel of Affiliate experts, but right now I want to take a moment to recognize this moment we’re facing and my hopes for this year’s CLINIC Convening.
You all, of all people, know that immigrant communities are facing truly unprecedented challenges – and I do not use that word, unprecedented, lightly.
With the lifting of Title 42, and the camps of men, women and children along the border desperate to find welcome on the other side; the proposed USCIS fee increases which threaten to put immigration benefits out of reach for many; the newly announced delays for foreign-born religious workers and special immigrant juveniles; and, perhaps above all, our warming planet and the outbreaks of violence which force many more people to migrate around the world – these are extremely challenging times for migrants in our country and around the world.
Several months ago, the New York Times featured an op-ed that has stuck with me, entitled, “The Rich World Has a Shockingly High Tolerance for Cruelty.”
It was about how rich nations are more willing than ever to let migrants languish at their borders in sub-human conditions rather than create safe pathways for migration or address the conditions causing people to flee.
It was about how the promises that nations made after World War II to respect the dignity and rights of those who are fleeing have been eroded and now, on a practical level, forgotten.
When I read this article, in my mind I was transported back to the time I spent in North Africa several years ago, working with migrants as a representative of Jesuit Refugee Services.
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I interviewed migrants who had traveled for 18 months or more to try and find safety in these countries bordering Europe. I got to know some of the migrants, who called me “grandma” – a term of endearment, as my hair was grey.
While I was talking to some of them, they showed me their hands, which were scarred with wounds. When I asked them what happened, they said their hands were repeatedly pierced while climbing barbed wire to get through to safety.
Hearing this, my heart broke – as it has many times over the years.
The idea that we are using barbed wire to keep out our fellow human beings is inconceivable, yet true. Our immigrant brothers and sisters stand at our gates, begging for our aid, and we build barbed wire fences that pierce their hands.
Many wealthy nations are founded on a concept of all human beings being equal in dignity, but we do not act like it.
As we gather in Arizona, I know we are all mindful that these kinds of camps that the op-ed author is speaking of are just several hours away on the border. We also know that immigrant communities’ dignity is denied not only in these camps, but all over the country in the various places we’ve come from.
We must be clear, this is not an “other side of the world problem,” it is our problem. It affects all of us, in our integrity as people of faith and conscience, and as a reflection of our society.
And yet today, as I recall that New York Times op-ed, and the sense of frustration and despair I felt while reading it, I feel a surge of hope.
I want you to look around the room. Look at your neighbor to your left and right. YOU are the hope that fills my heart, and YOU are the hope that reignites me in our work.
As we gather here today, I am in a room full of people who DO act like all human beings are equal. Those who spend their precious time – often too much of their time, working long hours – trying to advance the truth that every person is precious, valuable, and deserving of a safe and dignified life.
That’s why being in your presence gives me such hope. I am reminded that the CLINIC network is full of holy people.
That is why our gathering here together, and throughout this week, is so powerful: we are, to borrow the words of Bishop Seitz of El Paso, working to be a “creative counterexample” to the culture of fear and hostility, to be a network that is slowly creating a new culture of solidarity and hospitality.
At CLINIC, we also are bolstered by our faith that we do not do this hard work alone. The spirit of God is inspiring us and pushing us forward, giving us strength and magnifying our efforts, especially when we are overwhelmed by the need in front of us.
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Our faith also acts as a mirror for us, forcing us to keep evaluating whether we are truly reflecting the gospel truth of God’s concern for all people.
To maintain this faith, and to maintain the energy to be this creative counterexample, we need one another. Our network is sustained through the support, advice, and solidarity we demonstrate to one another.
Throughout the next few days, we will take the time to step back, to reflect on our work and learn and share new strategies, information, and tips for the very practical day-to-day work of supporting immigrant clients and communities.
We know that this practical work – the forms, the bureaucracy, the nitty-gritty details – changes and saves lives. So how well we can do it matters, which is why we gather to learn and grow.
We also gather to enjoy one another – to laugh, share stories, and reconnect with beloved colleagues and friends.
So I also hope that over the next few days you will have some fun!
Thank you for coming here to CLINIC Convening and for your dedication to this work. I am so honored to be alongside all of you this week, and all days.
Now, I am pleased to introduce our panelists for our opening plenary, Preparing for the Lifting of Title 42: Key Insights from our Network. When we decided on “reunited and reignited” for our theme this year, we knew we wanted to do something different for our opening conversation.
This “Network Fireside Chat” will be an opportunity to highlight the work done by our network throughout the United States. During this conversation, you’ll hear how Affiliates in three distinct geographical regions are rising to meet the needs of our immigrant and refugee brothers and sisters – especially during this increased time of uncertainty.
From the Border region, Joel Enriquez-Cazarez will share about the work of Jewish Family Service of San Diego.
As a transit city, Carolina Rivera will share how Catholic Charities of Dallas assists our immigrant brothers and sisters.
And Yer Vang from Catholic Charities Archdiocese of Dubuque will give an interior city perspective of welcome.
Now please join me in welcoming our keynote panelists to the stage…
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Thanks, my friend, for a lifetime of service to due process, fundamental fairness, and social justice, and for speaking out as the “powers that be” and the “powers that wannabe” go into cowardly retreat and hide in fear from the needs and rights of humanity!
Women find “trial by ordeal” can be the order of the day at Garland’s BIA:
Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Dan Kowalski reports for LexisNexis Immigration Community:
CA11 on VAWA, “Extreme Cruelty,” Chevron: Ruiz v. Atty Gen.
“Esmelda Ruiz, a native and citizen of Peru, appeals the Board of Immigration Appeals’ determination that she is ineligible for relief under 8 U.S.C. § 1229b(b)(2), a provision whose language was originally adopted as part of the Violence Against Women Act of 1994 and that outlines the conditions under which certain “battered spouse[s] or child[ren]” qualify for discretionary cancellation of removal. As relevant here, it requires a petitioning alien to show that she “has been battered or subjected to extreme cruelty” by her spouse or parent. 8 U.S.C. § 1229b(b)(2)(A)(i). Ruiz contends that the Immigration Judge and the BIA made two errors in refusing her cancellation request. First, she maintains that, as a matter of law, they misinterpreted the statutory term “extreme cruelty” to require proof of physical—as distinguished from mental or emotional—abuse. And second, she asserts that, having misread the law, the IJ and the BIA wrongly concluded that she doesn’t qualify for discretionary relief. We agree with Ruiz that the IJ and the BIA misinterpreted § 1229b(b)(2) and thereby applied an erroneous legal standard in evaluating her request for cancellation of removal. Accordingly, we grant her petition for review and remand to the BIA for further consideration. … For the foregoing reasons, we agree with Ruiz—and hold— that the BIA misinterpreted 8 U.S.C. § 1229b(b)(2). The term “extreme cruelty” does not require a petitioning alien to prove that she suffered physical abuse in order to qualify for discretionary cancellation of removal; proof of mental or emotional abuse is sufficient to satisfy the “extreme cruelty” prong of § 1229b(b)(2)’s five-prong standard. We therefore GRANT the petition in part and REMAND to the BIA for further proceedings consistent with this opinion.”
Not only did the supposedly “expert” BIA get the standard completely wrong, but Garland’s OIL continued to throw up specious arguments defending the BIA’s abusive treatment of women!
When you start with “No,” and then “reason” backwards to get there, bad things happen. Frankly, the Biden Administration was elected to “clean house” 🧹 at EOIR and to bring systemic due process, expertise, best practices, and impartiality to our nation’s dysfunctional immigration tribunals — with literally millions of lives and the future of democracy at stake! Why haven’t they done it? How do they continue to get away with it?
James “Jim” Crow Symbol of American Racism — Why are the Biden Administration and some Dem pols embracing this guy when it comes to asylum seekers — primarily individuals of color, merely seeking to exercise their legal rights and to be treated fairly and with human dignity?
Border Lines has published one of the best analyses of the Title 42 charade and its ongoing impact on our Government’s cruel, lawless, and misguided border policies. Given the cosmic impact of bad border policies, they have made it available “outside the paywall.”
Ultimately, Title 42 has ended, but the asylum restrictionist approach that it was the apex of has clearly not. For now, there’s no return to normal Title 8 processing — which, as regular readers of our historical analyses know, has never been impartial or apolitical, but at least provided some semblance of access and cursory due process. Title 42 is dead. Long live Title 42.
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This version of the transit ban is also, like its predecessor, under acute legal jeopardy. The ACLU has already sued to stop it, and some legal analysts are predicting that, given the precedents and legalities involved here, the administration’s efforts to make it compliant — including the very limited exceptions — won’t be enough. The CBP One exception is, after all, just another version of metering, another policy that was struck down. If there’s an injunction or even a final ruling and the transit ban goes down, then what? There’s at least some likelihood that word will spread and the surge of arrivals that was expected in the immediate aftermath of Title 42 will actually materialize then. How does the administration respond? Does it rush to enact an overlapping asylum restriction, as the Trump administration so often did? It’s hard to say.
A federal judge in Florida recently issued a restraining order blocking a Biden policy that would have allowed the administration to issue parole to some arriving families and instruct them to check in with ICE instead of placing them directly in removal proceedings, removing another option to control the immigration court backlog and avoid detaining families. It seems relatively unlikely that the administration will be happy to accept a defeat of its asylum restrictions that will then force it back into the uncomfortable position of detaining more families. In the meantime, market analysis site Seeking Alpha has upgraded the stock of private detention conglomerate GEO Group to “strong buy” in anticipation of strong profits from growth in detentions, not to mention GEO’s piece of all sorts of surveillance technologies used in the administration’s alternatives to detention programs.
In the meantime, an eight-year-old girl died yesterday in Border Patrol custody after having what is vaguely described as a “medical episode.” The machine churns on.
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Read the complete article at the link.
There’s lots of of “disturbing stuff” here. But, perhaps the worst and most discouraging is the role of the Biden Administration and some Dem pols in aiding, abetting, and even encouraging this 21st Century version of Jim Crow.
The poor and superficial reporting of the “mainstream media” — which performed like an adjunct Fox News — also has had life-threatening consequences. Inaccurately and cynically treating the Title 42 farce as “the norm,” and the return to applying some semblance of the rule of law (the Refugee Act has been in effect for more than four decades) as some type of radical “change” also has contributed mightily to the human tragedy and carnage at the border. Highly irresponsible!
Knightess of the Round Table — Somebody’s listening to our message! Too bad the Biden Administration doesn’t! It would save lots of time, resources, and lives if they did!
JUSTICE JACKSON delivered the opinion of the Court.
Under 8 U. S. C. §1252(d)(1), a noncitizen who seeks to challenge an order of removal in court must first exhaust certain administrative remedies. This case presents two questions regarding that statutory provision. For the rea- sons explained below, we hold that §1252(d)(1) is not juris- dictional. We hold further that a noncitizen need not re- quest discretionary forms of administrative review, like reconsideration of an unfavorable Board of Immigration Appeals determination, in order to satisfy §1252(d)(1)’s exhaustion requirement.1
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Read the full opinion at the link.
So, why is a Dem Administration under AG Garland taking anti-immigrant positions that can’t even garner a single vote on the most far-right Supremes in recent history?
Incredibly, the DOJ made the absurdist argument that, in violation of the statute, an additional unnecessary layer of procedural BS should be inflicted on individuals already dealing with the trauma of a dysfunctional system running a 2 million plus backlog and a BIA with more than 80,000 un-adjudicated appeals at last count! Where’s the common sense? Where’s the competence? Where’s the “better government” that the Biden Administration promised?
Meanwhile, our Round Table continues to put our centuries of collective experience in due process, fundamental fairness, and practical problem solving to use! The Biden Administration might not be paying attention. But, many others, including Article III Judges, are taking advantage and listening.
Pooja Asnani reports from Sanctuary For Families NY:
Hi all,
I wanted to share a recent asylum grant won by my colleagues, Deirdre Stradone, Amalia Chiapperino, and Kelly Becker-Smith, before IJ McKee at the NYC immigration court.
Client is Honduran Garifuna woman who survived DV and gang violence, and, importantly for the grant of asylum, forced sterilization. Below is a quick summary of the case, and I’m highlighting this asylum grant because our team, specifically Deirdre, has been seeing more and more cases of forced sterilization among Central American women.
Respondent is a forty-five-year-old Honduran Garifuna woman who has been the victim of forced sterilization, severe verbal, physical, and sexual violence, robbery and death threats by gang members, and intentional deprivation of law enforcement assistance and medical attention due to her race and gender. Overwhelming evidence affirms the horrific practice of forced sterilization against Garifuna women, as well as the high levels of domestic and gang violence in Honduras that take place with impunity. The evidence shows that government authorities largely fail to respond to complaints of abuse, or when they do respond, fail to do so effectively.
Deirdre has been collaborating with the Mt. Sinai Human Rights program to study the forced sterilization of Central American women, a topic she had encountered over and over again in her asylum cases, with the researchers agreeing that this particular violation of human rights is likely more common than is being research and reported. Deirdre has found several reports and studies conducted regarding indigenous, mainly Garifuna, women living with HIV who have been victims of this practice. As you all probably know, and stemming from the response to China’s one-child policy, forced sterilization is defined in the Immigration and Nationality Act (“INA”) as “per se persecution on account of political opinion.”
I wanted to share this because we’re realizing that that it may be a more wide-spread practice than we initially thought, and often times, clients don’t even realized they have been sterilized when they come to us. We have been asking specific questions about this in our intakes, and often have been sending our clients to get a medical evaluation to determine whether they have been sterilized. Unfortunately, we have had a several clients discover in the course of our representation that they had been sterilized without their consent, and we believe that many other women may have experienced this without realizing.
While we have worked on several cases with similar facts, but interestingly, this is the first asylum case we have had were the IJ (McKee) granted specifically based on the forced sterilization claim (political opinion), and not on the ARCG DV claim.
Our team at Sanctuary is working to put together a training to help issue-spot, discuss common fact patterns, and how to prepare and brief these cases; stay tuned for more details.
CC’ing the team who worked on this case, including Deirdre, if folks have questions.
Thanks,
Pooja
Deirdre Stradone Attorney Sanctuary for Families NYKelly Becker-Smith Attorney Sanctuary for Families NYAmalia Chiapperino Sanctuary for Families NY
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Dan Kowalski reports from LexisNexis Immigration Community:
Christina Brown writes: “I wanted to share the attached decision in case it is helpful to others. IJ Burgie granted the asylum claim of an indigenous Guatemalan applicant finding past persecution based on severe economic deprivation (DHS failed to rebut). She also granted based on a pattern and practice of severe economic persecution of indigenous Guatemalans.”
Many congrats and much appreciation to all involved!
Even as the Biden Administration and GOP nativists push their “big myth” that most seeking asylum at the Southern Border are “mere economic migrants” not “true refugees,” these results from those fortunate enough to have expert lawyers, fair Immigration Judges, and reasonable time to prepare, document, and present continue to show the intellectual and moral bankruptcy of the racially-biased restrictionist claims. Indeed, to get to the “any reason to deny” nonsense, which also is often mis-employed by the BIA, one has to intentionally ignore or misconstrue both the real country conditions in the Northern Triangle and the inclusive “at least one central reason” mixed motive language of the INA.
These are NOT “one offs!”No, they are actually recurring situations! A properly functioning, fair, expert BIA, committed to a correct and generous interpretation of asylum laws, would have incorporated these and other recurring “grant” situations into a series of binding precedents. These, in turn, would allow lawyers, Asylum Officers, IJs, and ACCs to recognize and prioritize these cases for “fast track grants.”
That, in turn, would enable many asylum applicants to be timely admitted in legal asylum status, work authorized, and on the way to green cards and naturalization. Significantly, it would also avoid the largely self-created, self-aggravated, ever-growing EOIR backlogs that seem to “drive” the “haste makes waste,” sloppy, “any reason to deny” decision-making that still exists throughout our broken and biased asylum system.
The REAL problem here its that meritorious cases like or similar to these that require expert recognition, proper preparation and documentation, and officials committed to “protection not rejection,” are likely to be summarily rejected and wrongfully pushed back across the border by the “Biden/Miller Lite” procedures and toxic official attitudes toward asylum now being promoted by both the Administration and the GOP.
It’s disturbingly clear that the needed positive changes in the immigration legal system are NOT “coming from the top” in the Biden Administration. Consequently, in addition to recruiting, training, and mentoring ever more members of the NDPA (including non-attorney accredited representatives), to hold the system accountable, it is ESSENTIAL that we get more NDPA “practical experts” on the Immigration Bench to spread and force due process, fundamental fairness, and best interpretations/practices on a resistant system from the “retail level” — the “grass roots” if you will.
That requires that NDPA experts with the qualifications apply for Immigration Judge vacancies en masse! You can’t be selected if you don’t apply! And, without better Federal Judges at all levels not only will injustice continue to prevail for immigrants, but our entire democracy will be imperiled! Better judges for a better America!
Yes, as I have acknowledged in prior posts, EOIR can be a tough place to work. But, human lives and the future of our democracy depend on our changing the system, from “the bottom up” if that’s the only way. This system is too important, with too much at stake, to be left to the whims and false agendas of tone-deaf politicos and inept, “go along to get along” bureaucrats!
AILA is pleased to welcome this blog post from long-time AILA member Careen Shannon, Senior Counsel (formerly Partner) at Fragomen, Del Rey, Bernsen & Loewy, LLP, and the Executive Producer of an important new documentary, “Las Abogadas: Attorneys on the Front Lines of the Migrant Crisis.” AILA members in town for the Spring Conference have a chance to see “Las Abogadas” at the Washington, DC International Film Festival on Wednesday, April 26, at 6:00 p.m., with a second show on Friday, April 28, at 8:30 p.m.
When my friend Rebecca Eichler told me that a documentary filmmaker was making a movie about her experience providing legal advice to members of a Central American migrant caravan as it made its way north through Mexico in 2018, I said, “That’s nice.” Later, when film production stalled due to the COVID-19 pandemic, she sent me a link to a trailer and encouraged me to take a look, and I promised to do so. But I was busy managing my remote work for the Fragomen law firm where I was then a partner, and I put all thoughts of the film aside.
Then one day, I watched the trailer, and I was hooked. Here was a story that needed to be told. It wasn’t just about Rebecca, but about tenacious lawyers – mostly women – who were dedicating their lives to defending the rights of asylum seekers, reuniting migrant families torn apart by the Trump administration’s cruel family separation policy, and fighting to uphold the rule of law at a time when the few existing safeguards for migrants seeking refuge from harm were being systematically dismantled.
I reached out to the film’s Director, Victoria Bruce, who I later learned only reluctantly took my call at Rebecca’s urging, since at that point she had run out of steam – and money – and was not sure she had it in her to complete the film. But we had a great conversation, we fed off of each other’s enthusiasm for the subject matter, and by the end of our talk she had invited me to sign on as the film’s Executive Producer.
Two years into the pandemic, I decided to step down as a partner at Fragomen and dedicate myself to ensuring that this important film got made. Fast forward to today, and Las Abogadas: Attorneys on the Front Lines of the Migrant Crisis is making the rounds of film festivals, winning awards, and garnering critical acclaim. Las Abogadas (which means “the women lawyers” in Spanish) follows a group of women immigration attorneys over a multi-year odyssey as the U.S. government under Trump upends every protection for those fleeing from persecution, violence and war. The film’s narrative continues into the first two years of the Biden administration, where great hope gives way to a despair my fellow AILA members undoubtedly share, that nothing fundamental had changed in U.S. immigration policy.
. . . .
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Read the complete article at the link.
“Nothing fundamentally has changed.” Rather than listening to, recruiting, partnering with, and following the advice of those on the “front lines” of defending individual rights, freedoms, and upholding American democracy, the Biden Administration disastrously turned immigration, human rights, and racial justice policies over to a bunch of “wonks” disconnected from the preventable human tragedies and mocking of the rule of law represented by Trump’s xenophobic, White Nationalist agenda.
Today, President Biden announced his candidacy for re-election in 2024. Part of his slogan is “protecting personal freedoms” from the GOP right-wing authoritarian, police state — bedrooms, bathrooms, classrooms, voting booths, more guns, MAGA-maniacs plan to invade and regulate every aspect of your life. But Biden’s miserable performance on immigrants’ rights and his Administration’s tone-deaf “dissing” of those like the heroes of “Las Abogadas,” suggests he will need more than a slogan to energize a critical, too often ignored,“core component” of the Dem base.
He could start by watching “Las Abogadas” along with VP Harris (who “took on” the “immigration portfolio,” and has been MIA since), his politicos, and his campaign staff and heeding the message. Social justice advocates are understandably skeptical about Biden’s promises. He needs actions that advance due process, the rule of law, and humane, robust, orderly processing of refugees and asylum seekers!
As the Trump debacle demonstrated, when immigrants’ rights disappear, all other individual and personal rights in America are in the far-right’s sights! It doesn’t take much imagination (except, perhaps, for some so-called “centrist” Dems) to see how the onslaught of anti-immigrant myths, rhetoric, and legislation by the GOP right has quickly shifted to hate bills targeting gays, transgender, women, Black History, teachers, voters, election officials, rational gun control, heck, even doctors, nurses, and established medical science!
Careen Shannon Senior Counsel (formerly Partner) Fragomen, Del Rey, Bernsen & Loewy, LLP Executive Producer “Las Abogadas: Attorneys on the Front Lines of the Migrant Crisis.” Photo: Think Immigration
Many congrats to Careen Shannon and everyone else involved in this tremendous project!
More than two years have passed since Joe Biden took office on the promise of a more humane approach to immigration and the border. But in many ways, the president has struggled to distinguish himself from his hard-line predecessor: His administration has expanded Title 42, the anti-immigration loophole authorized by Donald Trump; failed to resolve the family separation crisis; and proposed a new spin on Trump’s “transit ban” that would make a large percentage of migrants ineligible for asylum.
What’s more, the Biden administration has also apparently failed to adequately protect thousands of migrant children from labor trafficking inside the US. On Monday, The New York Times reported that the Department of Health and Human Services did not intervene after receiving repeated warnings about underage migrants the agency had sent to sponsors who then forced them to work grueling hours in dangerous conditions. While the department is required by law to vet sponsors to help ensure that children placed in their care will not be trafficked or exploited, those vetting requirements reportedly went by the wayside in 2021 amid a scramble to home those children.
The Times noted that at least five HHS staffers have said they were pushed out of their roles after sounding the alarm about child safety concerns. Jallyn Sualog, a former HHS official tasked with overseeing the agency’s response to unaccompanied migrant children, told the paper that she went to great lengths to warn her superiors that children were being put at risk. “They just didn’t want to hear it,” said Sualog, who said she was moved to a different post in 2021 after filing a complaint with the department’s internal watchdog. (She later accused the department of retaliation before settling with the agency and resigning.)
The paper traced the crisis back to Susan Rice, the president’s domestic-policy adviser. In 2021, as Rice was attempting to move throngs of unaccompanied migrant children from HHS shelters to homes, she and her aides reportedly received a memo detailing accounts of abusive sponsors but did nothing. (White House deputy press secretary Andrew Bates told the Times that Rice “did not see the memo and was not made aware of its contents.”
Since the summer of that year, the number of migrant children being trafficked or exploited has skyrocketed. Monthly calls to the HHS reporting trafficking, neglect, or abuse have more than doubled in the two years since Biden entered office, per the Times.
. . . .
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Read Caleb’s full article at the link.
Two years of ignoring experts, appointing the wrong folks, and NOT FIXING what could and should have been a success in showing how robust, legal, properly generous, refugee and asylum programs, staffed and run by experts, could be a model of good government! Go figure!
The Trumpist GOP “plays” to a right wing extremist base — wedded to un-American and generally unpopular “culture wars” targeting a wide range of groups who basically are America’s future!
By contrast, the Biden Administration “disses, and runs away from” key parts of the Dem Coalition whose humane practical expertise and leadership should be at the core of the message. It’s certainly not that Biden’s misguided “Miller Lite” approach to asylum seekers and children at the border has “peeled off” any Trumpist support or is going to be a “winner” among independent voters!
How bad are the Biden Administration’s proposals? They generated an amazing 51,000+ public comments, the vast majority in opposition, despite a ridiculously short 30-day comment period apparently intended to “squelch” dissent.
Dems need to stop “running scared” on social justice issues and promote American values including the benefits of immigration and the importance of robust, generous, orderly legal asylum and refugee programs!See, e.g., https://www.washingtonpost.com/opinions/2023/04/18/biden-democracy-fight-republican-extremism/ (Perry Bacon, Jr. gets everything right in his critique of Biden’s failure take on GOP extremism, EXCEPT for his glaring omission of immigrants rights as a primary “driver” of social justice in America and vice versa).
DUE PROCESS DOESN’T LIVE HERE ANY MORE: WEAPONIZED IMMIGRATION COURTS ARE AMERICA’S STAR CHAMBERS
By
Paul Wickham Schmidt
Retired U.S. Immigration Judge
“Immigration 101”
Renaissance Institute
Notre Dame University of Maryland in Baltimore
April 18, 2023
I. INTRODUCTION
Good morning. Thank you so much for inviting me, and for coming out on this beautiful Spring day. It’s an honor to be here.
Today, I’m going to tell you the sad story of how our Immigration Courts, housed in an agency called the Executive Office for Immigration Review (acronym “EOIR” for you “Winnie The Pooh” fans) within the U.S. Department of Justice, went from being the “Jewel in the Crown” to becoming “America’s Star Chambers,” where due process and human dignity are trampled daily. I will intertwine EOIR’s saga with my own career. Because, in many ways, my history and EOIR’s are the same. But, there’s a larger story in here that I hope you will pick up and that will tie together much of what you will learn in class.
Now, this is when I used to give my comprehensive disclaimer providing “plausible deniability” for everyone in the Immigration Court System if I happened to say anything inconvenient or controversial. But, now that I’m retired, we can skip that part.
However, I do want to hold Professor Rabben, the Renaissance Institute, the University, your faculty, trustees, you, and anybody else of any importance whatsoever “harmless” for my remarks which are solely my own views. No party line, no bureaucratic doublespeak, no sugar coating, no BS. Just the truth, the whole truth, and nothing but the truth, as I see and have lived it for five decades.
Also, because today is Tuesday, and you are such a great audience, I’m giving you my famous, industry-best, absolute, unconditional, money-back guarantee that this talk will be completely free from computer-generated slides, power points, or any other type of distracting modern technology that might interfere with your total comprehension or listening enjoyment. In other words, I am your “power point.”
II. CAREER SUMMARY
I graduated in 1970 from Lawrence University a small liberal arts college in Appleton, Wisconsin, where I majored in history. My broad liberal arts education and the intensive writing and intellectual dialogue involved were the best possible preparation for all that followed.
I then attended the University of Wisconsin School of Law in Madison, Wisconsin, graduating in 1973. Go Badgers!
I began my legal career in 1973 as an Attorney Advisor at the Board of Immigration Appeals (“BIA”) at the U.S. Department of Justice (“DOJ”) under the Attorney General’s Honors Program. Admittedly, however, the BIA’s Executive Assistant culled my resume from the “Honors Program reject pile.”
At that time, before the creation of the Executive Office for Immigration Review – “EOIR” — the Board had only five members and nine staff attorneys, as compared to today’s cast of thousands. Among other things, I worked on the famous, or infamous, John Lennon case, which eventually was reversed by the Second Circuit Court of Appeals.[1]
The Chairman of the BIA at that time was the legendary “immigration guru” Maurice A. “Maury” Roberts. Chairman Roberts took me under this wing and shared his love of immigration law, his focus on sound scholarship, his affinity for clear, effective legal writing, and his humane sense of fairness and justice for the individuals coming before the BIA. A sense, I might add, that is conspicuously absent from today’s EOIR.
In 1976, I moved to the Office of General Counsel at the “Legacy” Immigration and Naturalization Service (“INS”). There, I worked for another legendary figure in immigration law, then General Counsel Sam Bernsen. Sam was a first-generation immigrant who started his career as a 17-year-old messenger at Ellis Island and worked his way to the top of the Civil Service ranks. Perhaps not incidentally, he was also a good friend of Chairman Roberts.
At that time, the Office of General Counsel was very small, with a staff of only three attorneys in addition to the General Counsel and his Deputy, another mentor and immigration guru, Ralph Farb. At one time, all three of us on the staff sat in the same office!
In 1978, Ralph was appointed to the BIA, and I succeeded him as Deputy General Counsel. I also served as the Acting General Counsel for several very lengthy periods in both the Carter and Reagan Administrations.
Not long after I arrived, the General Counsel position became political. The incoming Carter Administration encouraged Sam to retire, and he went on to become a name and Managing Partner of the Washington, D.C. office of the powerhouse immigration boutique Fragomen, Del Rey, and Bernsen. He was replaced by my good friend and former colleague, the late Judge David Crosland, who selected me as his Deputy. Dave was also the Acting Commissioner of Immigration during the second half of the Carter Administration, one of the periods when I was the Acting General Counsel.
The third General Counsel that I served under, during the Reagan Administration, was one of my most “unforgettable characters:” the late, great Maurice C. “Mike” Inman, Jr. He was known, not always affectionately, as “Iron Mike.” His management style was something of a cross between the famous coach of the Green Bay Packers, Vince Lombardi, and the fictional Mafia chieftain, Don Corleone.
Although we were totally different personalities, Mike and I made a good team, and we accomplished amazing things. It was more or less a “good cop, bad cop” routine, and I’ll let you guess who played which role.
Among other things, I worked on the Iranian Hostage Crisis, the Cuban Boatlift, the Refugee Act of 1980, the Immigration Reform and Control Act of 1986 (“IRCA”), the creation of the Office of Immigration Litigation (“OIL”), and establishing what has evolved into the modern Chief Counsel system at Department of Homeland Security (“DHS”).
I also worked on the creation of EOIR in 1983, which combined the Immigration Courts, which had previously been part of the INS, with the BIA to improve judicial independence. Interestingly, and perhaps ironically, the leadership and impetus for getting the Immigration Judges into a separate organization came from Mike and the late Al Nelson, who was then the Commissioner of Immigration. Prosecutors by position and litigators by trade, they saw the inherent conflicts and overall undesirability, from a due process and credibility standpoint, of having immigration enforcement and impartial court adjudication in the same division.
I find it disturbing that officials at today’s DOJ have actually recreated and aggravated many of the problems and glaring conflicts of interest that EOIR originally was created to overcome. Indeed, as I will discuss later, they have allowed the Immigration Courts to become “weaponized” as a tool of immigration enforcement.
For example, former Attorney General Jeff Sessions unethically and improperly referred to supposedly fair and impartial Immigration Judges as “in partnership” with DHS enforcement. A.G. Garland has done little to dispel this notion.
By the time I left in 1987, the General Counsel’s Office, largely as a result of the enactment of IRCA and new employer sanctions provisions, had dozens of attorneys, organized into divisions, and approximately 600 attorneys in the field program, the vast majority of whom had been hired during my tenure.
In 1987, I resigned from INS and joined Jones Day’s DC Office, a job that I got largely because of my wife Cathy and her “old girl network.” I eventually became a partner specializing in business immigration, multinational executives, and religious workers. Among my major legislative projects on behalf of our clients were the special religious worker provisions added to the law by the Immigration Act of 1990 and the “Special Immigrant Juvenile” provisions of the INA.
Following my time at Jones Day, I succeeded my former boss and mentor Sam Bernsen as the Managing Partner of the DC Office of Fragomen, Del Rey & Bernsen, the leading national immigration boutique, where I continued to concentrate on business immigration. Immigration is a small community; you need to be nice to everyone because you keep running into the same folks over and over again in your career. While at Fragomen, I also assisted the American Immigration Lawyers Association (“AILA”) on a number of projects and was an asylum adviser to the Lawyers’ Committee on Human Rights, now known as Human Rights First.
In 1995, then Attorney General Janet Reno appointed me Chairman of the BIA. Not surprisingly, the late Janet Reno was my favorite among all of the Attorneys General I worked under. I felt that she supported me personally, and she supported the concept of an independent judiciary, even though she didn’t always agree with our decisions and vice versa.
She was the only Attorney General who consistently came to our Investitures and Immigration Judge Conferences in person and mixed and mingled with the group. She had a saying “equal justice for all” that she worked into almost all of her speeches, and which I found quite inspirational.
She was also hands-down the funniest former Attorney General to appear on “Saturday Night Live,” doing her famous “Janet Reno Dance Party” routine with Will Farrell immediately following the end of her lengthy tenure at the DOJ. Can you imagine Jeff Sessions, Bill Barr, or Merrick Garland making live appearances on SNL, and laughing at themselves. Not likely!
Among other things, as Chair, I oversaw an expansion of the Board from the historical five members to more than 20 members, a more open selection system that gave some outside experts a chance to serve as appellate judges on the Board, the creation of a supervisory structure for the expanding staff, the establishment of a unified Clerk’s Office to process appeals, implementation of a true judicial format for published opinions, institution of bar coding for the tens of thousands of files, the establishment of a pro bono program to assist unrepresented respondents on appeal, the founding of the Virtual Law Library, electronic en banc voting and e-distribution of decisions to Immigration Judges, and the publication of the first BIA Practice Manual, which actually won a “Plain Language Award” from then Vice President Gore.
I also wrote the majority opinion in my favorite case, Matter of Kasinga, establishing for the first time that the practice of female genital mutilation (“FGM”) is “persecution” for asylum purposes.[2] The “losing” attorney in that case was none other than my good friend, then INS General Counsel David A. Martin, a famous emeritus immigration professor at University of Virginia Law, who personally argued before the Board.
In reality, however, by nominally “losing” the case, David actually won the war for both of us, and more important, for the cause of suffering women throughout the world. We really were on the same side in Kasinga — the side of protecting vulnerable women.
During my tenure as Chairman, then Chief Immigration Judge (now BIA Judge) Michael J. Creppy and I were founding members of the International Association of Refugee Law Judges (“IARLJ”). This organization, today headquartered in The Hague, promotes open dialogue and exchange of information among judges from many different countries adjudicating claims under the Geneva Convention on Refugees.
In 2001, under pressure from the incoming Bush Administration and new Attorney General John
Ashcroft, I stepped down as BIA Chairman, but remained as a Board Member until April 2003. At that time, Ashcroft, who was not a fan of my opinions, invited me to vacate the Board and finish my career at the Arlington Immigration Court, where I remained until my retirement on June 30, 2016.
So, I’m one of the few ever to become an Immigration Judge without applying for the job. Or, maybe my opinions, particularly the dissents, were my application and I just didn’t recognize it at the time. But, it turned out to be a great fit, and I truly enjoyed my time at the Arlington Court.
I have also taught at George Mason School of Law and at Georgetown Law where I am still an Adjunct Professor.
As a sitting judge, I encouraged meticulous preparation and advance consultation with the DHS Assistant Chief Counsel to stipulate or otherwise narrow issues. There currently are approximately two million pending cases in Immigration Court, a backlog that grows every day. Because of this overwhelming workload, efficiency and focusing on the disputed issues in court are particularly critical.
III. THE DUE PROCESS VISION
Now, let’s move on to the other topics: First, vision. The “EOIR Vision” once was: “Through teamwork and innovation, be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” In one of my prior incarnations, I was part of the group that developed that now abandoned and disrespected vision statement. Perhaps not surprisingly given the timing, that vision echoed the late Janet Reno’s “equal justice for all” theme.
Sadly, the Immigration Court System has moved ever further away from that due process vision. Instead, years of neglect, misunderstanding, mismanagement, and misguided priorities imposed by the U.S. Department of Justice have created judicial chaos with an expanding backlog now at an astounding two million cases, continuing to grow, with no clear plan for resolving them in the foreseeable future. Indeed, former AG Sessions actually maliciously and intentionally tried to add a potential 300,000 previously closed cases to those already on the active docket.
There are now more pending cases in Immigration Court than in the entire U.S. District Court System. Notwithstanding the hiring of hundreds of new judges by the past two Administrations, most in the Trump Administration from the ranks of Government prosecutors, the backlog continues to grow by leaps and bounds.
The Government has added hundreds of thousands, of new cases to the Immigration Court docket, again without any transparent plan for completing those already pending cases consistent with due process and fairness. They have done this despite efforts by the Biden Administration to re-establish sensible enforcement priorities and prosecutorial discretion that were trashed by the Trump Administration.
Even under Attorney General Garland, inexcusably, the “flavor of the day” is haphazardly advanced before pending cases which, in turn, are “orbited” to the end of the years long line. This results in what I call “Aimless Docket Reshuffling” or “ADR, EOIR-style.”
Notably, and most troubling, the only things that aren’t “priorities” for any Administration are fairness and due process in the immigration hearing process which have clearly been “thrown from the train” as the deportation express hurtles down the track. The Due Process Clause of the U.S. Constitution – has become “the enemy” in today’s disgracefully dysfunctional Immigration Courts.
Nobody has been hit harder by this preventable disaster than asylum seekers, particularly scared women and children fleeing for their lives from the Northern Triangle of Central America. In Immigration Court, notwithstanding the life-or-death issues at stake, unlike criminal court there is no right to an appointed lawyer.
Individuals who can’t afford a lawyer must rely on practicing lawyers who donate their time or on nonprofit community organizations to find free or low-cost legal representation. Although the Government stubbornly resists the notion that all asylum seekers should be represented, studies show that represented asylum seekers are at least five times more likely to succeed than those who must represent themselves. For recently arrived women with children, the success differential is an astounding fourteen times![3]
Although the Biden Administration promised to do better, they actually are using somewhat improved technology to make matters worse for lawyers, mindlessly overbooking cases without advance consultation with counsel — sometimes simultaneously scheduling cases for the same attorney in different cities at the same time.
An Assistant Chief Judge for Training in the Obama Administration infamously claimed that he could teach immigration law to unrepresented toddlers appearing in Immigration Court. Issues concerning representation of so-called “vulnerable populations” continue to haunt our Court System. Even with Clinics and Non-Governmental Organizations pitching in, there simply are not enough free or low-cost lawyers available to handle the overwhelming need.
To make matters worse, Administrations of both parties engage in a number of legally questionable and morally reprehensible “gimmicks” and “schemes” to keep asylum applicants at the Southern Border from getting fair hearings in Immigration Court.
Whether it’s “dedicated dockets,” Remain in Mexico, abusive use of Title 42, family detention, child separation, invented “bars” to asylum, or forcing applicants stranded in dangerous conditions in Mexico to use failing technology to schedule appointments, the objective is to prevent asylum applicants from receiving due process. Instead, they are often wrongfully “orbited” back to Mexico, Guatemala, Haiti, Honduras, and El Salvador.
These are among the world’s most dangerous countries, some basically without functional governing systems. Once there, many suffer kidnapping, extortion, rape, torture, and even death at the hands of the same forces from which they originally fled.
It’s a total and intentional perversion of asylum law and American values. Worst of all, complicit Article III Courts, all the way up to the Supreme Court, regularly “tank” in their duties to protect asylum applicants’ legal and constitutional rights. Instead, they “go along to get along” or pretend not to see or understand the grotesque human tragedy that they have enabled.
Customs and Border Protection officials brag about how limiting or eliminating asylum protections helps solve “the problem” and “reduce the numbers” at our Southern Border. In their view, refugees seeking legal protections under our laws and international conventions are a “problem” and human lives are merely “numbers” to be “reduced.”
It’s part of a concerted effort to “dehumanize the other” and convert them to “non-persons” under the law. I call this “Dred Scottification” after the infamous pre-Civil War Supreme Court case that declared that Blacks were not “persons” under our Constitution, although I hardly originated this term.
Notwithstanding today’s legal, Constitutional, and human rights disaster, I, for one, still believe that with proper enlightened leadership and some guts the “EOIR vision” could be fulfilled.
IV. THE ROLE OF THE IMMIGRATION JUDGE
Changing subjects, to the role of the Immigration Judge: What’s it like to be an Immigration Judge? As an Immigration Judge, I was an administrative judge. I was not part of the Judicial Branch established under Article III of the Constitution.
The Attorney General, part of the Executive Branch, appointed me, and my authority was subject to her regulations. I might add that I also served at her pleasure, something that GOP Administrations “get,” but ineffectual Democratic Administrations, not so much. And, that has lots to do with the abysmal state of justice in the Immigration Courts under Garland.
We should all be concerned that the U.S. Immigration Court system, between 2017 and 2021, was totally under the control of Attorneys General Jeff Sessions and Bill Barr, who consistently took negative views of immigrants, both legal and undocumented. Both failed to recognize the many essential, positive contributions that immigrants make to our country. They were also unfailingly biased against migrants in Immigration Court and their attorneys, in their negative and unethical “precedents,” and in prosecutor-friendly, immigration experience light, criteria for appointing new Immigration Judges and Appellate Judges at the BIA.
Indeed, in February 2020, a group of more than 2,500 former DOJ officials from Administrations of both parties, including me and many of my colleagues from the Round Table of Former Immigration Judges, took the extraordinary step of publicly calling on Barr to resign for corruption and compromising the independent role of the DOJ.[6] Among other things, we “strongly condemn[ed] President Trump’s and Attorney General Barr’s interference in the fair administration of justice.” Certainly, that was reflected in his mishandling of the Immigration Courts and “weaponizing” them against migrants and their lawyers
The late Judge Terence T. Evans of the Seventh Circuit Court of Appeals offered one of the best descriptions of what it’s like to be an Immigration Judge:
Because 100 percent of asylum petitioners want to stay in this country, but less than 100 percent are entitled to asylum, an immigration judge must be alert to the fact that some petitioners will embellish their claims to increase their chances of success. On the other hand, an immigration judge must be sensitive to the suffering and fears of petitioners who are genuinely entitled to asylum in this country. A healthy balance of sympathy and skepticism is a job requirement for a good immigration judge. Attaining that balance is what makes the job of an immigration judge, in my view, excruciatingly difficult.[5]
My good friend and colleague, Judge Dana Leigh Marks of the San Francisco Immigration Court, who is the past President of the National Association of Immigration Judges, offers a somewhat pithier description: “[I]mmigration judges often feel asylum hearings are ‘like holding death penalty cases in traffic court.’”[7]
An actual practitioner before today’s dysfunctional Immigration Courts was even blunter in an interview appearing in Mother Jones, one of my favorite scholarly publications: “An [expletive deleted] disaster that is designed to fail.”[7]
Certainly, balance, Due Process, and fundamental fairness have been sacrificed in today’s Immigration Courts in favor of expediency and “weaponizing” the Immigration Courts as tools of DHS enforcement. In other words, they are now structured to be little more than a whistle-stop on the deportation express as the complicit Article IIIs look on.
Barr even took the extreme, unethical, step of moving to “decertify” the Immigration Judges union, the National Association of Immigration Judges (“NAIJ”), of which, for full disclosure, I am a retired member. Actually, I believe my appearance here today was arranged through Linda contacting the NAIJ!
One of the keys to the Immigration Judge’s job is supposed to be issuing scholarly, practical, well-written opinions in the most difficult cases. That ties directly into the job of the Immigration Court’s Judicial Law Clerks (“JLCs”) assisted by legal interns from local law schools. Obviously, however, quality and care took a back seat to “productivity” under the Trump Administration’s program of “dumbing down” the Immigration Courts — not by any means effectively countermanded under Garland. Indeed, the already-strained ratio of Immigration Judges to judicial law clerks has gotten much worse over the past few years.
V. RECLAIMING THE VISION
Our Immigration Courts are going through an existential crisis that threatens the very foundations of our American Justice System. Earlier, I told you about my dismay that the noble due process vision of our Immigration Courts has been derailed and trashed. What can be done to re-establish it?
First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. We must end the improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers.
Ultimately, that will take an independent Article I Immigration Court, which has been supported by groups such as the ABA, the FBA, and the NAIJ, and was introduced in the last Congress by Subcommittee Chair Zoe Lofgren (D-CA).
Indeed, in February 2020, a hearing on “The State of Judicial Independence and Due Process in U.S. Immigration Courts” took place before Chair Lofgren’s Subcommittee on Immigration and Citizenship. Our 50+ strong “Round Table of Former Immigration Judges” filed a written statement in support of Due Process and creation of an independent, Article I Court.
You can find it on my blog “Immigrationcourtside.com,” which, of course, I highly recommend for anyone trying to understand what’s really happening in immigration these days.[8] We also joined 53 other distinguished organizations and NGOs in writing to Congress urging them to establish an independent Immigration Court.[9]
But, Article I is still a future dream. In the meantime, there is no excuse for Garland’s failure to make needed personnel, structural, and “cultural” changes at EOIR to restore due process.
Second, there must be radical structural changes so that the Immigration Courts are organized and run like a real court system, not a highly bureaucratic, headquarters bloated, enforcement agency. This means that sitting Immigration Judges, like in all other court systems, must control their dockets.
We must end the practice of having often clueless administrators in Falls Church and political bureaucrats in Washington, D.C., none of whom are sitting judges responsible for daily court hearings, manipulate and rearrange local dockets in an attempt to achieve policy goals unrelated to fairness and due process for individuals coming before the Immigration Courts.
Additionally, the judicial hiring process over the past 22 years has failed to produce the necessary balance because judicial selectees from private sector backgrounds – particularly those with expertise in asylum and refugee law –have been so few and far between. Indeed, during the Obama Administration nearly 90% of the judicial appointments were from Government backgrounds.
In the Trump Administration, nearly 100% of judicial appointments by Attorney General Barr came from prosecutorial or other public sector backgrounds. A number of these conspicuously lacked expertise in immigration and human rights laws!
Garland has done better in bringing in expert practical scholars and even getting rid of a few of the most horribly unqualified judges. But, in an out-of-control system with more than 600 judges, and growing, it’s going to take more than this “nibbling around the edges” to restore due process.
Third, there must be a new administrative organization to serve the courts, much like the Administrative Office of the U.S. Courts. Currently, the unwieldy hiring process, inadequate courtroom space planning and acquisition, and unreliable, often-outdated technology are simply not up to the needs of a rapidly expanding court system.
EOIR basically has “institutionalized worst practices.” This includes limiting legitimate continuances and placing judges under “performance plans” designed to hustle cases through the system, with insufficient quality control, while producing “assembly line injustice.”
Fourth, I would repeal all of the so-called “Ashcroft & Barr reforms” at the BIA and put the BIA back on track to being a real appellate court, as the “Appellate Division” of a new independent Immigration Court. A properly comprised and well-functioning Appellate Division should transparently debate and decide important, potentially controversial, issues, publishing dissenting opinions when appropriate.
All Appellate Judges should be required to vote and take a public position on all important precedent decisions. The Appellate Division must also “rein in,” rather than encourage and enable, those Immigration Courts with asylum grant rates so incredibly low as to make it clear that the generous dictates of the Supreme Court in Cardoza-Fonseca[9] and the BIA itself in Mogharrabi[10] are not being followed.
Well over a decade has passed since Professors Andy Schoenholtz, Phil Shrag, and Jaya Ramji-Nogales published their seminal work Refugee Roulette, documenting the large disparities among Immigration Judges in asylum grant rates.[11] The BIA, the only body that can effectively establish and enforce due process within the Immigration Court system, has not adequately addressed this situation.
Indeed, among the still-serving Barr appointments to the BIA are Immigration Judges who deny asylum nearly 100% of the time and are the subject of complaints from the private bar and NGOs about bias, rudeness, and other unprofessional behavior. In other words, Barr implemented “worst practices and policies” at the BIA and in the Immigration Courts in an attempt to “snuff out” every remnant of fundamental fairness and due process for migrants. He and Sessions particularly targeted the most vulnerable asylum seekers and their families for unfair treatment.
Inexplicably, and outrageously, Garland has failed to “clean house” and bring in the necessary qualified experts to reshape the Immigration Courts in a due process image. In particular, Trump holdovers contain due to dominate the BIA and turn out lousy, anti-immigrant, anti-due process decisions, many of which are slammed by the Circuit Courts on review.
This is hardly “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all!” The sharp drop-off in Immigration Court asylum grant rates during the Trump Administration was impossible to justify in light of the generous standard for well-founded fear established by the Supreme Court in Cardoza-Fonseca and the BIA in Mogharrabi, the regulatory presumption of future fear arising out of past persecution that applies in many asylum cases,[14] and the simple fact that there has been no worldwide diminution in the conditions causing refugees to flee. Indeed, they have gotten worse, in many cases.
The BIA’s chronic inability or unwillingness to aggressively stand up for the due process rights of asylum seekers and to enforce the fair and generous standards required by American law have robbed our Immigration Court System of credibility and public support, as well as ruined the lives of many who were denied protection that should have been granted. We need an Appellate Division that functions like a Federal Appellate Court and whose overriding mission is to ensure that the due process vision of the Immigration Courts becomes a reality rather than a cruel, intentionally unfulfilled promise.
Fifth, and finally, the Immigration Courts need better public service now! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. The public receives a level of service disturbingly below that of any other major court system.
That gives the Immigration Courts an “amateur night at the Bijou” aura totally inconsistent with the dignity of the process and the critical importance of the mission. Yet, after two decades of largely wasted effort, EOIR has failed to produce and implement a coherent, professional, user friendly court management system.
VI. GETTING INVOLVED
Bleak as this picture is, there is some good news. There are hundreds of dedicated and courageous lawyers out there who are former JLCs, interns, my former students, and those who have practiced before the Immigration Courts.
They form the nucleus what I call the “New Due Process Army!” You can be members, and I hope you will.
Thanks to an innovative new online program called VIISTA Villanova, developed by my friend Professor Michele Pistone, retirees who are not lawyers can train to become accredited representatives of recognized nonprofit organizations and actually represent asylum seekers in Immigration Court. Check it out on the internet.
VII. CONCLUSION
In conclusion, in the process of describing my career, I have introduced you to one of America’s largest and most important, yet least understood and appreciated, court systems: The United States Immigration Court. Right now, it is, inexcusably, clearly and beyond any reasonable doubt America’s worst and most dysfunctional court system.
I have shared with you that court’s once-noble due process vision and how it has been viciously and cruelly trampled, first to advance a xenophobic, White Nationalist Qrestrictionist agenda and then because Garland has failed to do his duty.
I have also shared with you my ideas for effective court reform that would restore and elevate the due process vision.
My friends, both our Immigration Courts and our democratic republic are in a grave existential crisis. There are powerful and well-organized forces with a very dark, exclusive vision of America’s future: one that reverses generations of human progress and knowledge and actively promotes intolerance, misinformation, dehumanization, and deconstruction of our democratic institutions and fundamental human values.
It’s an intentionally “whitewashed” version of American history. One that denies the ingenuity, creativity, and forced labor of generations of African Americans who literally built our country! It disregards the courage, tenacity, skill, and strength of Asian Americans who built our Transcontinental Railroad and literally brought our nation together. And, of course, it dismisses the legions of Hispanic Americans who have been “making America great” since before “America was America,” with their culture, hard work, determination, and commitment to the “real” American dream, not the “whitewashed” version.
The future envisioned by these dark forces “x’es out” some of you in this room. Don’t let their darkness and willful ignorance be your future and that of generations to come.
Look around you at the real history and the real America. The future is ours! Don’t let the forces of darkness and a “past that never was” deny our destiny!
Now is the time to take a stand for Due Process, fundamental fairness, human rights, human dignity, and human decency! Join the New Due Process Army and fight to make equal justice under law and the constitutional and human rights of everyone a reality rather than an unfulfilled promise! Due process forever!
Thanks again for inviting me and for listening.
(04/19/23)
[1] Matter of Lennon, 15 I&N Dec. 9 (BIA 1974), rev’d Lennon v. INS, 527 F.2d 187 (2d Cir. 1975).
[2] Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).
[4] “Immigration Director Calls for Overhaul of Broken System,” NBC Bay Area News, May 27, 2015, available online.
[5] Guchshenkov v. Ashcroft, 366 F.3d 554 (7th Cir. 2004) (Evans, J., concurring). [6] Hon. Thomas G. Snow, “The gut-wrenching life of an immigration judge,” USA Today, Dec. 12, 2106, available online at http://www.usatoday.com/story/opinion/2016/12/12/immigration-judge-gut-wrenching-decisions-column/95308118/
[7] Julia Preston, “Lawyers Back Creating New Immigration Courts,” NY Times, Feb. 6, 2010.
[15] See, e.g., Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) (denial of due process where IJ tried to bar the testimony of minor respondent by disqualifying him as an expert witness under the Federal Rules of Evidence). While the BIA finally stepped in with this precedent, the behavior of this Judge shows a system where some Judges have abandoned any discernable concept of “guaranteeing fairness and due process.” The BIA’s “permissive” attitude toward Judges who consistently deny nearly all asylum applications has allowed this to happen. Indeed the Washington Post recently carried a poignant story of a young immigration lawyer who was driven out of the practice by the negative attitudes and treatment by the Immigration Judges at the Atlanta Immigration Court. Harlan, Chico, “In an Immigration Court that nearly always says no, a lawyer’s spirit is broken,” Washington Post, Oct. 11, 2016, available online at https://www.washingtonpost.com/business/economy/in-an-immigration-court-that-nearly-always-says-no-a-lawyers-spirit-is-broken/2016/10/11/05f43a8e-8eee-11e6-a6a3-d50061aa9fae_story.html
How does this live up to the EOIR Vision of “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all?” Does this represent the best that American justice has to offer?
We need to keep challenging this mockery of justice from all angles until the system changes! Keep raising the EOIR farce with Dems at all levels — let them know that due process at EOIR is a “front burner” issue they can’t keep sweeping under the rug!
Help groups that are assisting individuals stuck in this bureaucratically-created “Hell on Earth.” The EOIR system “feeds” on (picks on) the unrepresented, uninformed, traumatized, and desperate! Help people get effective representation, win cases, save their lives, and bring systemic attention to the gross injustices being inflicted on a daily basis by this dysfunctional system!
The “powers that be” at DOJ and the White House have little interest in leading and institutionalizing due process and excellence in judging at EOIR. But, neither are they positioned to prevent it from taking hold and growing on its own. That’s particularly true because Immigration Judges with practical expertise, courtroom skills, and a commitment to enforcing and vindicating individual rights ultimately “move” dockets more efficiently, motivate others to work together toward the ends of justice, and create fewer problems and embarrassments.
Even the BIA can’t screw up cases they don’t get! At some point, even inept and largely tone-deaf Dem politicos and their bureaucratic minions start “warming” to proven solutions rather than recreating failures and flailing away with bone-headed “deterrence” gimmicks.
The BIA might eschew precedents favorable to individuals. But, thanks to litigation against EOIR by the NY Legal Assistance Group, unpublished decisions are more widely available now on the internet. Even at the IJ level, advocacy organizations have established online networks and banks of good decisions by Immigration Judges granting relief.
These recognize and credit outstanding, exemplary, courageous judicial performance in a way that EOIR never does. Perhaps more importantly, these “unheralded victories” provide “road maps” and inspire others! Also, every concrete example of how good judging and good lawyering, on both sides, can work at EOIR serves as a condemnation and rebuke of the Administration’s lack of concern about due process, fundamental fairness, and best practices at EOIR.
While the picture is undoubtedly ugly, we must keep “painting it” — with vivid colors — until complacent folks in the power structure (particularly tone-deaf Dems) can no longer look away, cover their eyes and ears, and deny the truth about the “third world” system they are disingenuously passing off as American “justice.”
The message is straightforward: Due process, fundamental fairness, and best practices work! For everyone! It’s past time for Garland and the rest of this Administration to “get their collective heads out of the sand” and start heeding and acting decisively on that truth!
Bury your head in the sand Sander van der Wel from Netherlands Creative Commons Attribution-Share Alike 2.0 It’s way past time for AG Merrick Garland and Biden politicos to change this highly ineffective approach to the EOIR due process disaster!
“Hipppity, hippity, hop! Deny, deny, deny! For any reason, in any season, or for no reason at all! Hippity, hippity, hop!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
Fwd: CA2 Vacates Matter of Y-I-M-, 27 I. & N. Dec. 724 (B.I.A. 2019)
“Petitioner, a native and citizen of Ukraine, seeks review of a December 12, 2019 decision of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Based on ostensible inconsistencies in Petitioner’s testimony and a purported failure to submit corroborating evidence, an Immigration Judge (“IJ”) entered an adverse credibility finding. However, we conclude that the adverse credibility finding is not supported by substantial evidence and that the IJ unjustifiably refused to allow Petitioner to present readily available witness testimony, thereby depriving him of a full and fair hearing. As such, we GRANT the petition for review, VACATE the BIA’s decision, and REMAND the case for further proceedings consistent with this opinion.”
First, many congrats to NDPA super lawyer John Giammatteo! Obviously (to everyone but Garland), experts like John belong on the Immigration Bench, not just in front of it!
Something is horribly wrong with a system that designates fabrications and denials of due process as “precedents” to guide other judges! Something is also disturbingly wrong with an Attorney General, a former Article III Federal Appeals Judge no less, who has failed to bring in real expert progressive judges to run EOIR, redo defective precedents as proper legal guidance, eradicate the disgraceful anti-asylum bias, and enforce due process, fundamental fairness, and decisional excellence in America’s most important “retail level” court system!
There currently are opportunities for better judges to get into the system, start eradicating bad judging like this, and replacing it with expert, due process focused, efficient, “real judging” by better judges. Get those applications in!
The “message” of Matter of Y-I-M- is clear: make it up, ignore it, cut it off, hustle off to lunch — whatever it takes to “get to no” — we’ll have your back!
“The decision is scorching,” says Dan Kowalski. And, well it should be! This is a disgusting,institutionalized travesty of justice 🤮, in life or death cases ☠️, going on right under AG Merrick Garland’s nose! It’s undermining American democracy! And, it’s totally preventable!
Remarkably, the BIA selected this pathetically bad adjudication — one that raises questions as to whether anyone at EOIR even read the record — combined with a horrendous denial of due process, and an IJ who obviously felt “empowered” to elevate time over fairness and substance — as a precedent! That means it was supposed to be a “model” for IJs — essentially a message that you should go ahead and deny asylum for any reason — even if largely fabricated — and the BIA will give you a “pass.” This actually raises some serious ethical problems with the whole EOIR mess and Garland’s indolent stewardship over this critical part of our justice system!
The IJ actually said this: “So, don’t get frustrated if I shutdown your arguments. It’s just that —we’re now at 12:00, and we’re nowhere . . . near done in the case.”
Amazingly, this IJ “touted” that cutting off relevant testimony, actually “helped” the respondent by giving him more possible reasons to appeal! Does this sound like a system that encourages “efficiency” and “excellence?”
No wonder they have backlogs coming out the wazoo! Yet, rather than slamming this IJ and using it as a precedent of how NOT to handle an asylum case, the BIA basically “greenlighted” an egregiously defective performance and made it a “model” for other judges! Outrageous!
It’s an example of why this system needs progressive, due process oriented leadership and radical reforms! Now!
A competent IJ could have granted this corroborated case and still have made their “noon lunch date!” Recognizing and institutionalizing consistent grants of relief is what “moves” the Immigration Court system without violating anyone’s rights and without tying up the Article III Courts!
Instead, because of the unchecked “culture of denial” and the incompetence allowed to flourish at EOIR, after four years this case is still bouncing around the system. That’s a key reason why EOIR is dysfunctional and their backlogs are out of control!
Correct, positive precedents establishing and enforcing best practices are essential to due process and fundamental fairness — once, but no longer, EOIR’s “vision.”
One of the “uninitiated” might logically expect that having exposed and eliminated this disingenuous “any reason to deny asylum” precedent, advocates for due process and fundamental fairness have “won this battle.” Not so in the “parallel universe” of Garland’s EOIR!
As pointed out by Hon. “Sir Jeffrey” Chase of the Round Table:
If they follow past practice, the BIA will continue to apply this decision as a model for IJs in every circuit but the 2d.
Come on, man!
The author of the Second Circuit decision, U.S. District Judge Gary Brown has an interesting background, according to “Sir Jeffrey:”
Also, the judge who wrote the decision for the panel, Gary Brown, is a Trump appointee to the Eastern District of NY sitting by designation on this panel. When John’s argument was being mooted, we actually discovered that Judge Brown is also a renowned magician, who invented an effect called the Viking Spirit Trumpet.
Actually, Judge Brown was nominated for the bench by both President Obama and President Trump! Wonder if he has any magic spells up his sleeve that would make EOIR disappear and reappear as a real, due-process-focused court!
Magic Hat & Wand Could U.S. District Judge Gary Brown, also a famous magician, conjure up a spell that would make due process “reappear” at EOIR? PHOTO: Public Realm
Amazing how busy Article III Judges can take the time to read and understand records in asylum cases, but the BIA can’t! This system is broken!
Meaningful reform starts with a new, better qualified, expert BIA focused solely on due process, fundamental fairness, and decisional excellence. It’s very straightforward! Why doesn’t Garland “get it?” How many more will be wrongfully denied while our disconnected AG floats around in his surreal, yet deadly, “intellectual never never land?”
Lost in an intellectual fog, and far removed from the “retail level of justice,” AG Merrick Garland can’t be bothered with the injustices heaped on asylum seekers and their dedicated representatives in his dysfunctional, deny for any reason, Immigration Courts! PHOTO: Wikipedia Commons
Every time I read this decision I get more and more outraged about the continuing horrors of EOIR! Attorneys could face sanctions for making material misrepresentations in briefs. Yet, nothing happens to EOIR Judges who “make it up as they go along” to deny asylum!
I was told by some withknowledge of the EOIR disaster that, at least until recently, those at higher levels of the Administration who (curiously) are “pulling the strings” at EOIR were unaware that Immigration Judges are not automatically “packaged” with Judicial Law Clerks! Duh! Anybody who has actually worked at the “line level” of EOIR as well as a whole bunch of widely available reports and studies could have told them that!
So, according to my sources, in at least some locations “flooded” with new IJs, the already poor IJ to JLC ratio has gotten much, much worse!
Just another piece of “low hanging fruit” that Garland has failed to “harvest.” I’ve also been told that problems with grade levels discourage individuals from making a career out of working in the law clerk program.
All of this makes it critical that new Immigration Judges be experts in immigration law with “hands on” experience. So, NDPA practical scholars, get those applications for judgeships in NOW! Indolence about due process at the top creates opportunities for spreading and institutionalizing due process at the “retail level!” But, that requires great judges with the right experience. So, don’t wait! Apply today!🗽⚖️👨🏾⚖️👨🏼⚖️👩🏾⚖️🧑🏻⚖️
Holy card ( 1899 ) showing an illustration to the Gospel of Matthew 25, 34-36 – rear side of an obituary. Wolfgang Sauber Creative Commons Attribution-Share Alike 4.0
MATTHEW AT THE BORDER: ACTING ON THE MESSAGE OF CHAPTER 25
By Paul Wickham Schmidt
U.S. Immigration Judge (Retired)
Westminster Presbyterian Men’s Breakfast
April 14, 2023
I. INTRODUCTION: THE MESSAGE OF MATTHEW 25
Welcome. Thank you for inviting me and for coming out this morning.
Of course, I want to hold my friend and fellow “Badger” Dudley, the Men’s Group, honored guests, and anybody else of any importance whatsoever harmless for my remarks this morning. While I have borrowed liberally from the ideas and inspirations of others, I take sole responsibility for the views expressed in my presentation.
I don’t usually start my talks with a Biblical quote. But, since this is a church men’s breakfast, we are in the holy season, and my topic is integrally tied to Judeo-Christian values, I want to read from Matthew 25, verses 34-46:
34 Then the king will say to those at his right hand, “Come, you that are blessed by my Father, inherit the kingdom prepared for you from the foundation of the world;
35 for I was hungry and you gave me food, I was thirsty and you gave me something to drink, I was a stranger and you welcomed me,
36 I was naked and you gave me clothing, I was sick and you took care of me, I was in prison and you visited me.’
37 Then the righteous will answer him, “Lord, when was it that we saw you hungry and gave you food, or thirsty and gave you something to drink?
38 And when was it that we saw you a stranger and welcomed you, or naked and gave you clothing?
39 And when was it that we saw you sick or in prison and visited you?’
40 And the king will answer them, “Truly I tell you, just as you did it to one of the least of these who are members of my family, you did it to me.’
41 Then he will say to those at his left hand, “You that are accursed, depart from me into the eternal fire prepared for the devil and his angels;
42 for I was hungry and you gave me no food, I was thirsty and you gave me nothing to drink,
43 I was a stranger and you did not welcome me, naked and you did not give me clothing, sick and in prison and you did not visit me.’
44 Then they also will answer, “Lord, when was it that we saw you hungry or thirsty or a stranger or naked or sick or in prison, and did not take care of you?’
45 Then he will answer them, “Truly I tell you, just as you did not do it to one of the least of these, you did not do it to me.’
46 And these will go away into eternal punishment, but the righteous into eternal life.”
II. OVERVIEW
The last time I was with you, five years ago, I described the mess and rampant unfairness in our immigration system. I’d like to say that those times are behind us: That we have restored the rule of law, enhanced due process, and acted, as a nation, in a manner that showed adherence to those passages from Matthew.
But, unfortunately, I can’t do that. Not yet! Despite many promises to fix the mistakes of the past and to do better in the future, and a few successes, the current Administration has, in my view, disturbingly failed to deliver on our obligation to treat “the stranger” and “the other” — in other words, some of “the least of these” — fairly and with human dignity. Nowhere is this more harmful, discouraging, and threatening to both human life and our democracy than at our borders.
The most vulnerable among us, asylum seekers, who ask for little other than to be treated fairly and humanely under our laws, are still being victimized by dysfunctional bureaucracies more intent on deterring and rejecting than on protecting!
I’m going to tell you truths that some find uncomfortable; briefly summarize our current and proposed “built to fail system” at the borders; and tell your why it doesn’t have to be this way!
I’m going to share with you some ideas from legal and humanitarian experts on how our nation could do a far better job for ourselves and for refugees just by more creatively, boldly, and courageously exercising authorities under existing law. In other words how we as a nation could reflect on Jesus’s parable in Matthew and make it a reality.
III. UNCOMFORTABLE TRUTHS
Let me tell you a few truths that the “false prophets” find uncomfortable.
First, there is an internationally recognized right to seek asylum. Our law states that any person “who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including [someone] who is brought to the United States after having been interdicted in international or United States waters), irrespective of such [person’s] status, may apply for asylum.” [INA, 208(a)].
Second, according to the 5th Amendment to our Constitution, “no person . . . shall be . . .deprived of life, liberty, or property without due process of law.” Note that it says “person,” not citizen or “lawfully present non-citizen.”
Third, according to our Supreme Court, asylum laws are to be applied generously, so that even those with just a 10% chance of suffering persecution could qualify. [INS v. Cardoza-Fonseca]. In other words, according to the Board of Immigration Appeals, the highest administrative tribunal in immigration where I once served as an appellate judge and Chair, asylum can be granted “even where [the likelihood of persecution] is significantly less than clearly probable.”[Matter of Mogharrabi].
Additionally, the Handbook of the United Nations, whose Refugee Convention we adopted and which forms the basis for our refugee and asylum laws, says that because of the traumatic situation of refugees and the understandable difficulty they have in gathering and presenting “evidence,” refugees and asylum seekers should be given “the benefit of the doubt” in adjudications.
Fourth, by definition, refugee situations are driven by a variety of life-threatening forces occurring in sending countries, most of them outside our immediate control. Therefore, attempts to use harsh applications of our laws, intentionally “user-unfriendly” procedures, and punishment such as prosecution, imprisonment in life-threatening conditions, and even family separation as “deterrents” are ultimately doomed to failure. I’ve personally watched this “play out” during my five decade career in immigration.
Friends, human migration is a reality as old as humanity itself. It existed long before the evolution of the “nation state” and will continue as long as there is human life on this earth.
Consequently, the idea of some that we can unilaterally cut off or end human migration solely by our own cruel, repressive, and unfair actions is absurd. As I always say, “We can diminish ourselves as a nation, but that won’t stop human migration.”
Fifth, America needs immigrants. Refugees and asylees are part of our legal immigration system. They should be treated as such and welcomed, rather than being dehumanized and viewed as a “loophole,” a “threat,” or“invaders.”
Unhappily, in my view, most of our past and current policies toward refugees and asylum seekers run afoul of these fundamental truths. Worse still, legislators, policy makers from both parties, and even Federal Judges have been willing to run roughshod over these fundamental principles when they believe it is personally, politically, financially, or even professionally expedient.
IV.CURRENT BORDER POLICIES
Currently, our border asylum policies, largely “holdovers” from the Trump Administration, are overwhelmingly weighted toward improper, and ultimately futile, “deterrence.” This reflects deeply imbedded nativist, often racist, views by those holding power.
Our Government currently claims that our border is “closed” to legal asylum seekers, as it has been since March 2020. Under a vestige of Trump-era policy, known as Title 42, the legal processing of asylum applicants and their admission has been suspended based on a transparently pretextual, manufactured claim of necessity to protect America from COVID.
This allows many individuals to be excluded from the U.S. without any legal process and without having a chance to make a claim for asylum or other legal protection. Others are allowed to come into the U.S. under highly discretionary — most would say arbitrary — opaque “exceptions” to Title 42 that are within the sole discretion or DHS officials without any meaningful review.
The result is a mess. Some refugees are returned to Mexico or their home countries where they are subject to abuse, extortion,exploitation, crime, torture, and sometimes death.
Others, who might or might not be refugees, are allowed into the U.S., often with inadequate screening and without clear instructions as to what they are to do next. Because the Biden Administration didn’t establish any uniform nationwide resettlement system for those allowed in, they have been subject to cruel political stunts.
One of the most well-publicized of these has been the so-called “voluntary relocation” of individuals from the border by the governors of Texas, Florida, and, until the recent election, Arizona. They are sent by these governors, without coordination or notice, to supposedly “liberal” cities such as New York, Chicago, Denver, and Washington, D.C., in the calculated hopes of overwhelming community nonprofit organizations, creating chaos, and thereby causing a “backlash” against asylum seekers and the Administration.
V. BIDEN’S LARGELY MISGUIDED PROPOSALS
The Biden Administration has made some rather halfhearted efforts to end Title 42. To date, these have been blocked by right-wing Federal Judges, mostly Trump appointees.
But, it now appears that with the overall “COVID emergency” ended by President Biden, Title 42 will also end on May 11, barring further obstructionist litigation.
Many of us had hoped that after more than two-years to work on regularizing and normalizing asylum processing, the Biden Administration would have a “ready to implement” plan for restoring order, fundamental fairness, and due process to asylum adjudication.
But, sadly, this is not the case. The Biden Administration has actually proposed what many of us consider to be “gimmick regulations” to take effect upon the expiration of Title 42. These proposals actually build upon, and in some cases expand, unfair, restrictive, ineffective policies used by the Trump Administration to “deter” asylum seekers.
Obviously, many experts have opposed these measures. A group of which I am a member, the Round Table of Former Immigration Judges, filed an official comment in opposition to these proposals.
In it, we stated:
[T]he proposed rule exceeds the agencies’ authority by seeking to create a ban on asylum that contradicts Congressional intent and international law. As former Immigration Judges, we can confidently predict that the rule would result in individuals being erroneously deported even where they face a genuine threat of persecution or torture. We urge that the rule be withdrawn in its entirety.
Notably, approximately 33,000 individuals and organizations joined us in submitting comments in opposition to these regulations. Among these is the union representing the DHS Asylum Officers who claim, with justification, that applying these proposed provisions would require them to violate their oath to uphold the law.
At the heart of the Administration’s proposed changes is a new bar for those who apply for asylum other than at a port of entry and who can’t show that they have applied and been denied asylum in a country they “transited” on the way to the U.S.
Absurdly, this includes some of the most dangerous countries in the world, without well-functioning, fair asylum systems: Mexico, Honduras, Guatemala, El Salvador, Nicaragua, Colombia, being among those often transited.
This is also a rather obvious contradiction of the statutory command I read earlier that individuals can apply for asylum regardless of whether they arrive at a port of entry.
While there are some “emergency exceptions” to these new bars, they are narrow and will be almost impossible for individuals who have made the long, difficult, and dangerous journey to establish.
The proposal also improperly raises the statutory standards for preliminary screening of these individuals by Asylum Officers from “credible fear” to “reasonable fear.” This improperly weaponizes “gatekeepers” to block access to the asylum adjudication system.
Another “centerpiece” of the proposal is to require all asylum applicants arriving at ports of entry to schedule in advance an appointment for asylum screening using a new app called “CBP One.” Unfortunately, according to those actually at the border with asylum seekers, CBP One is “not quite ready for prime time.” It’s plagued by technical glitches, including disconnection, inability to schedule appointments for all family members, failure of the “facial recognition” software with some ethnic groups, and issues of usable wi-fi in Mexico and cell phone access among some applicants.
As Senator Cory Booker (D) of New Jersey stated following a recent trip to the border:
“Even if the CBP One app [were] as efficient, user friendly, fair, and inclusive as possible – which I hope one day it will be – it would still be inherently discriminatory.”
Additionally, the “appointments” currently available for asylum seekers are woefully inadequate and often are exhausted shortly after being posted, leaving legal asylum seekers frustrated and stranded in deplorable conditions near the Mexican border.
The Administration has recognized the need to encourage applications for refugee status in or near the countries from which refugees flee. But, instead of providing for more robust refugee admissions, the Administration has circumvented existing refugee laws by creating “special programs” for nationals of five countries to apply for temporary “parole into the U.S.”
This process is restricted to only five countries: Venezuela, Nicaragua, Haiti, Cuba, and Ukraine. The numbers of paroles are limited, and the criteria do not necessarily relate to refugee qualifications, relying heavily on the ability to obtain a U.S. sponsor in advance.
While this undoubtedly benefits some nationals of these countries, it does not prioritize refugees and it contains numerical limitations that do not apply to those seeking asylum. The arbitrary, highly discretionary nature of the parole determinations is combined with the lack of any statutory mechanism for conferring green cards upon the expiration of parole. This “limbo” situation recreates many of the ad hoc factors of parole programs prior to the Refugee Act of 1980 that Congress specifically intended to eliminate.
Another so-called “feature” of the proposed system being touted by the Administration is the negotiated ability to remove up to 30,000 non-Mexicans per month to Mexico. This is despite the well-publicized dangers awaiting them there, including the recent murders of American tourists and the “slow roasting” of 39 detained asylum seekers in a Mexican detention center fire.
The Biden Administration is also considering re-instituting so-called “family detention” and increased criminal prosecutions of those who cross the border illegally. These policies, also employed by the Trump Administration, have proved highly problematic in the past.
Then there is the mess in the individual asylum adjudication system that was weaponized and largely destroyed by the Trump Administration. Unqualified personnel, perceived to be committed to denying asylum above all else, were selected both at DHS and for Immigration Judge positions at the Immigration Courts, known as EOIR in the Department of Justice. Both the Asylum Office and EOIR are now incredibly backlogged.
As currently operated, the Immigration Courts feature a number of so-called “asylum free zones” where asylum is almost never granted by judges who are renowned for denying 90-100% of the asylum claims, far above the already grossly inflated “national average.”
Even when asylum is granted, it too often depends more upon the attitude and background of the individual Immigration Judge assigned than on the merits of the case. The U.S. Courts of Appeals regularly return cases to EOIR after pointing out very basic legal and factual errors committed by the latter in their undue haste to deny protection!
The current dysfunction at EOIR violates the commands of the law, that I read to your earlier, for due process, fairness, generosity, and applying the benefit of the doubt to asylum adjudications.
Indeed, attempting to avoid the Immigration Courts, now with an astounding 2 million backlog of pending cases, at least 800,000 of them involving asylum, appears to be one of the “drivers” of Biden Administration asylum policies. Unfortunately, in their two years in office, this Administration has done little to reform the Immigration Courts to improve expertise, efficiency, and due process and to repair the systemic damage done during the Trump Administration.
To add insult to injury, incredibly, the Biden Administration just “put on hold” one of the few potential improvements they had made to the asylum process: Allowing Asylum Officers to grant asylum to border applicants who pass credible fear. This would actually bypass the EOIR backlog without diminishing anyone’s due process rights. After pushing this change as potentially “transformational,” the Administration totally blew the implementation in a stunning show of ineptness and lack of basic preparation.
V. BETTER SOLUTIONS THROUGH EXISTING LAW
In my view, and that of other experts, we are once again heading for a systemic failure to do right by refugees and asylum seekers. The primary reason is that, in contravention of the law, the lessons of the Holocaust, which gave birth to the Refugee Convention, and the scriptures, we view refugees — “the stranger in need” — as “problems” or “statistics” to be “deterred,” “punished,” “discouraged,” and “denied.”
This is a wrong-headed — and fundamentally un-Christian — view. Refugees are fellow humans — like us — in need. They are legally entitled and deserving of our protection.
But, beyond that, they are an important source of legal immigration that our country was built upon and continues to need. Indeed most of the ancestors of those of us in this room probably came to this country fleeing or escaping something, regardless of whether or not it would have met today’s refugee definitions.
The border doesn’t have to be a source of disorder and embarrassment to our nation. There are better alternatives, even under existing law.
My experience tells me that if, instead of straining to improperly deter refugees, we use available tools to construct a fair, timely, generous, practical, expert, user-friendly legal system for refugees and asylees, the vast majority of them will use it. That will necessarily take pressure off the task of apprehending those seeking to evade the system.
What I’m going to share with you are ideas for progressive, humane, constructive improvements developed and advocated by many experts and NGOs. Certainly, these are not just my ideas.
First, we must maximize use of the existing provisions for legal screening and admission of refugees processed outside the United States. Currently, those programs are overly cumbersome and far too anemic with respect to the Western Hemisphere, particularly for countries in the Northern Triangle of Central America that are traditional “sending countries.”
Refugees screened and approved abroad arrive at our borders with documents and immediate work authorization. They are also able to bring family members and have a clear statutory path to obtaining green cards and eventually citizenship. These are important factors missing from the ad hoc parole programs instituted by this Administration.
Second, we need radical reforms of our Asylum Offices at USCIS and the Immigration Courts at EOIR. The “deadwood and nay sayers” who overpopulated these agencies during the Trump Administration must be weeded out and replaced with true subject matter experts in asylum, preferably with actual experience representing asylum seekers.
There are many asylum cases, both among arriving applicants, and languishing in the largely self-created backlogs, that could and should be prioritized and rapidly granted. Better trained and qualified Asylum Officers should be encouraged to grant asylum at or near the border whenever possible. That avoids the need to “refer” cases to the backlogged Immigration Courts.
Within EOIR, a great place to “leverage” reform would be at the BIA. That body was intentionally “packed” with some of the highest asylum-denying judges during the Trump Administration. Bringing in well-respected subject matter experts to set positive asylum precedents, establish and enforce best practices, and “ride herd” on the toxic “asylum free zones” and “deniers’ clubs” allowed to flourish among Immigration Courts would be a huge step forward.
And, for those who are found not to have a credible fear of persecution, after a fair screening system and fair rules administered by Asylum Officers who are experts, the law already provides for “summary expedited removal” without resort to full Immigration Court hearings, thus avoiding that backlogged system.
There is not, and has never been, a legitimate need to resort to Title 42 and other improper gimmicks, to deal with large migration situations. To the extent that one believes in the effectiveness of “deterrence” for those who do not have credible asylum claims, it’s built right into our existing law.
Third, the Administration should be working with the private bar, NGOs, states, and local governments to maximize access to pro bono or low bono asylum representation. Currently, far too many adjudications take place either in detention centers in intentionally obscure locations or at out of the way ports along the border.
Achieving representation needs to be a driving factor in establishing asylum processing. Indeed, studies have shown that representation not only dramatically improves results for asylum seekers but also virtually guarantees their appearance at all immigration hearings, without detention. It’s probably the biggest “bang for the buck” in asylum adjudication strategies.
The Government should also be working to encourage and, where possible, fund innovative programs like VIISTA Villanova that train non-attorneys to be “accredited representatives” for recognized non-profit organizations representing asylum seekers.
Fourth, rather than expensive and inhumane detention prisons, the Government should establish a network of “reception centers” near the border and throughout the country. These could provide safe, sanitary, residential housing, education, and even work opportunities while individuals are being timely and professionally processed for asylum. They also could be matched with legal staff.
These centers should be run by NGOs and other social service organizations with government funding. They would be a humane replacement for the privately run “detention centers” that have been the center of controversy and human rights abuses.
Fifth, the government should work with NGOs, charitable organizations, and regional economic consortiums to establish orderly, effective resettlement programs in the U.S. that would match those granted refugee or asylum status with housing and employment opportunities in areas of America where there skills can be best utilized.
Sixth, our government should continue to engage with the UN, other democratic nations, and economic development agencies to address the root causes of migration.
There are many other great ideas out here in the private sector that are being largely ignored by our Government. While nobody disputes the desirability of structural changes in our immigration laws, we could drastically improve and humanize our response to refugee situations just by more creative and robust application of already existing authorities and the expertise available in the U.S. humanitarian and NGO sectors.Approaching asylum as a humanitarian responsibility, rather than a law enforcement conundrum, is the key to escaping from the wilderness of failed “deterrence schemes” and creatinga better future for humanity.
VI. CONCLUSION
I can sum up by quoting one of the members of what I call the “New Due Process Army,” Amy R. Grenier. She said, very perceptively, that stripped of all of its legalistic complexities,“the concept of asylum is fairly simple. It’s the ability to ask for help and have someone listen to your story. And I think that that’s very easy to lose sight of.” I think that is also the message of the quote from Matthew 25 that I began with.
When we ignore these pleas for help from the most vulnerable and instead dehumanize, or as I sometimes say “Dred Scottify” them, we not only endanger their lives, but we also diminish our own humanity. I’ve never found anyone who wanted to be a refugee. And, but for the grace of God, any of us could be a refugee, at any time, often when you are least expecting it.
The problem with asylum at the border is not the law. It’s the lack of will, moral courage, vision, creativity, competence, and basic skills from those charged with implementing the law. In reality, there is plenty of flexibility in the existing law to encourage refugees to apply outside the U.S., to fairly, timely, and generously process those arriving at the border who invoke our laws, and to expeditiously remove those who don’t belong in the asylum system.
There is also plenty of legal authority to change inhumane and expensive “border jails” into “reception centers,” to increase the availability of pro bono representation, to resettle refugees and asylees in an orderly fashion, and to match the needs and skills of refugees and asylees with the needs of communities throughout the U.S.
The real issue is why is our Government wasting time and resources on cruel, legally questionable, ultimately ineffective “deterrence gimmicks” rather than solving problems, protecting the lives, and recognizing the humanity of those in need? Matthew knew what’s the right thing to do! Why don’t our elected leaders and the bureaucrats working for them?
I’ve shared with you some ideas for getting closer to “the vision of Matthew 25” in dealing with refugees and asylees. Of course, I haven’t solved the hard part — how to get the attention of politicians, legislators, bureaucrats, and judges who have largely “tuned out” the legal rights of refugees and other migrants and are all too prone to run from creative solutions, rather than embrace them.
But, hopefully, I have helped to install the first step: For all of us to recognize that contrary to what many say, we can do better for refugees and we should make doing so one of our highest national priorities. How we treat “the most vulnerable — the “least of those among us” — does affect everything else in our lives and our nation’s well-being!
We need to improve the informed dialogue, stand behind our values, and insist that those who govern us do likewise. Thank you and, as we say in the New Due Process Army, due process forever!
