"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Even in the hot-button area of immigration, most Americans agree on the need to address the plight of so-called Dreamers, the undocumented immigrants brought to the United States as children. A Pew poll this summer showed that around three-quarters of Americans, including a majority of Republicans, favor granting them permanent legal status. If lawmakers could stop demagoguing long enough to pass a version of the Dream Act, iterations of which have been circulating for a while, the majority of Americans would be grateful.
Consider all of this a starting point — with other, even more promising avenues out there to explore. As always, the details matter. So does the degree to which lawmakers in both parties decide that it’s in their political interest to gum up the works. Mr. Biden and, perhaps more important, American voters will need to make clear their expectations for action and bring the necessary pressure to bear. There is common ground to be found in a host of policy areas. Political leaders should be pressed to cultivate it.
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Read the rest of the NYT Editorial Board’s suggestions at the link.
Sounds like a good starting point for moving forward with humanitarian actions that will benefit the common good.
In the past, the problem has been in the details of exactly what “relief” is (e.g., will it include a “path to citizenship,” and , if so, how arduous?) and who qualifies (the DACA program had a June 15, 2102 “cutoff” date, and not all of those eligible actually registered, some for fear that the information would be used to deport them). But, without Stephen Miller fouling up the works, the chances of success should be vastly improved
Let’s hope it gets done and in a fittingly generous and inclusive manner ASAP! That’s particularly true in light of the contributions that many in the DACA program have made as “essential workers” during the pandemic!
Then again, it was only two weeks before Election Day that four of the court’s conservatives announced their potential willingness to throw out votes on the basis of this theory of state legislative supremacy over electoral votes. It is very easy to imagine a world in which the election was a little closer, where the outcome came down to one state instead of three or four, and the court’s conservatives could use the conflict over a narrow margin to hand the president a second term.
With no evidence that Republicans have really thought about the implications of a victory in the courts, I think we can say that these briefs and lawsuits are part of a performance, where the game is not to break kayfabe (the conceit, in professional wrestling, that what is fake is real). Still, we’ve learned something from this game, in the same way we learn something about an audience when it laughs.
We have learned that the Republican Party, or much of it, has abandoned whatever commitment to electoral democracy it had to begin with. That it views defeat on its face as illegitimate, a product of fraud concocted by opponents who don’t deserve to hold power. That it is fully the party of minority rule, committed to the idea that a vote doesn’t count if it isn’t for its candidates, and that if democracy won’t serve its partisan and ideological interests, then so much for democracy.
None of this is new — there is a whole tradition of reactionary, counter-majoritarian thought in American politics to which the conservative movement is heir — but it is the first time since the 1850s that these ideas have nearly captured an entire political party. And while the future is unwritten, the events of the past month make me worry that we’re following a script the climax of which requires a disaster.
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Read Jamelle’s full op-Ed at the link.
Always interesting for those of us who grew up during the Cold War, to see how the Commie-fighting, “law and order” GOP has become a party of neo-Stalinists and nihilists!
Although the GOP right claims to shudder at the threat of ”socialism,” (most probably have little or no idea what that actually means) dangerous clowns 🤡 like Ted Cruz would have been right at home in a Leninist-Stalinist dictatorship, its cult of personality, its utter disdain for the “real will of the people” and the common good, and its brutal suppression of both truth and dissent in favor of a politically fabricated “party line.”
America needs and deserves better from its opposition party. Whether we’ll get it seems doubtful based on current performance.
“EOIR Clown Show Must Go” T-Shirt Custom Design ConceptMe
Good evening, Houston! Hope you and yours are staying well. Thanks for joining me to help plan the next big battle for our New Due Process Army (“NDPA”).
I’m retired, so I can tell it like it is: no party line, no bureaucratic doublespeak, no BS, just the truth, the whole truth, and nothing but the truth. Nevertheless, I do want to hold AILA, your organizers, you, and anyone else of any importance whatsoever harmless for the following remarks, for which I am solely responsible. To borrow the words of country music superstar Toby Keith, “it’s me baby, with your wakeup call!”
And, perhaps to state the obvious: “Houston, we’ve got a problem!” The problem is EOIR, it’s threatening our entire justice system, and I need your help to fix it!
42 days and counting left in the kakistocracy – governance by the worst among us. We got the job done in November. But, by no means is the fight to preserve our justice system and save our nation over. Indeed, in many ways it’s just beginning!
I’m dividing my presentation this evening into two parts. First, I’m going to take you from one of the highlights of my career, the Kasinga decision in 1996, to the depths of the current unmitigated disaster in our Immigration Courts. I’ll explain how policy-making by myth, inadequate leadership, followed by malicious incompetence snuffed out hope and progress and replaced it with despair and return to the dark days of Jim Crow.
Then, I’m going to tell you what needs to be done to restore and re-energize due process at EOIR, why our time is now, and why your voices as members of our New Due Process Army (“NDPA”) need to be heard loud and clear by the incoming Biden-Harris Administration.
* * * * * * *
We also need an AG who is advocate for human rights and immigrants’ rights. Additionally, there is a pressing need for immigration/human rights experts from the NDPA in authoritative positions in other parts of the DOJ, like the SG’s Office, OIL, and the Office of Legal Policy, as well as, of course DHS, ORR, State, and even CDC.
Remember: This isn’t “rocket science!” It’s just common sense, “practical scholarship,” best practices, moral courage, humanity, and respect for human dignity! All of which you and other members of the NDPA have in abundance! Most of all, it’s about getting the right practical experts in the key positions within the incoming Administration.
Unlike the Article III Courts, the “EOIR Clown Show” can be removed, replaced, and justice at all levels improved just by putting the right experts from the NDPA in charge right off the bat. Because these are Executive positions that do not require Senate confirmation, Mitch McConnell’s permission is not required.
Democratic Administrations, particularly the Obama Administration, have a history of not getting the job done when it comes to achievable immigration reforms within the bureaucracy. If you don’t want four more years of needless frustration, death, disorder, demeaning of humanity, and deterioration of the most important “retail level” of our justice system, let the incoming Biden Administration know: Throw out the EOIR Clown Show and bring in the experts from the NDPA to turn the Immigration Courts into real, independent courts of equal justice and humanity that will be a source of national pride, not a deadly and dangerous national embarrassment!
Contrary to all the mindless “woe is me” suggestions that it will take decades to undo Stephen Miller’s racist nonsense, EOIR is totally fixable — BUT ONLY WITH THE RIGHT FOLKS FROM THE NDPA IN CHARGE! It only becomes “mission impossible” if the Biden-Harris Administration approaches EOIR with the same indifference, lack of urgency, and disregard for expertise and leadership at the DOJ that often has plagued past Democratic Administrations on immigration, human rights, and social justice.
It won’t take decades, nor will it take zillions of taxpayer dollars! With the right folks in leadership positions at EOIR, support for independent problem solving (not mindless micromanagement) from the AG & DOJ, and a completely new BIA selected from the ranks of the NDPA experts, we will see drastic improvements in the delivery of justice at EOIR by this time next year. And, that will just be the beginning!
No more clueless politicos, go along to get along bureaucrats, unqualified toadies, and restrictionist holdovers calling the shots at EOIR, America’s most important, least understood, and “most fixable” court system! No more abuse of migrants and their hard-working representatives! No more ridiculous, “Aimless Docket Reshuffling” generating self-created backlogs! No more vile and stupid White Nationalist enforcement gimmicks being passed off as “policies!” No more “Amateur Night at The Bijou” when it comes to administration of the immigrant justice system at EOIR!
Get mad! Get angry! Stop the nonsense! Tell every Democrat in Congress and the Biden Administration to bring in the NDPA experts to fix EOIR! Now! Before more lives are lost, money wasted, and futures ruined! It won’t get done if we don’t speak out and demand to be heard! Let your voices ring out from banks of the Rio Grande to the shores of the Potomac, from the Gulf Coast to the centers of Government!
This is our time! Don’t let it pass with the wrong people being put in charge — yet again! Don’t be “left at the station” as the train of immigrant justice at Justice pulls out with the best engineers left standing on the platform and the wrong folks at the controls! Some “train wrecks” aren’t survivable!
Repeat after me: “Hey hey, ho ho, the EOIR Clown Show has got to go!” Then pass it on to the incoming Administration! Let them know, in no uncertain terms, that you’ve had enough! More than enough!
Thanks for listening, have a great evening, stay well, take care of your families, and, always remember the NDPA rallying cry, Due Process Forever!
Basically, with over 1.3 million backlogged cases already on the docket, EOIR has chosen to expedite and prioritize newer asylum cases where individuals have not had time to obtain attorneys and properly prepare over hundreds of thousands, perhaps one million, of “ready to try” backlogged cases. Some of the latter undoubtedly date back to my time on the bench!
Rather than working with the private bar and ICE on a rational plan to get the cases that are ready to try heard, EOIR has chosen to rush ahead by putting “not ready for prime time” cases in front of those that have been waiting, some for many years. Apparently, the plan is to then dismiss the cases if completed asylum applications aren’t filed by the arbitrary, artificial, and unreasonable deadlines.
Remarkably, attorneys were told that if they couldn’t meet these arbitrary, unreasonable deadlines, they should “file motions.” That will 1) throw more useless paper into an un-automated system already drowning in it; 2) undoubtedly lead to wildly inconsistent adjudications among judges; and 3) generate unnecessary appeals and possible Federal court actions. Some unrepresented individuals likely will be wrongfully deported because they don’t understand what’s happening.
This is “Aimless Docket Reshuffling” in action. A great example of why “The EOIR Clown Show 🤡 has got to go!” Sooner, not later!
Let your voices be heard!
I hear lots of talk about the importance of civil rights from the Biden team. But, as we well know, “immigrants’ rights are civil rights.”
Civil rights reforms and justice for African Americans, Hispanic Americans, and other minorities will continue to be an unrealized dream unless and until we fix the broken and biased Immigration Court system: “The home of ‘Dred Scottification’ and the ‘21st Century Jim Crow.’” As MLK, Jr. once said, “Injustice anywhere is a threat justice everywhere.”
After three decades of abject failure and “deterioration of justice at Justice,” time for some progressive new leadership at the DOJ that takes those words to heart and “connects the dots” between the continuing abuses of Black Americans in the streets and the disgraceful abuses inflicted on immigrants of color and their representatives in our 21st Century “Star Chambers” called Immigration Courts that operate within the DOJ. In my mind, appointing officials who were part of not solving the problem in the past, even if they “know” the DOJ, is not going to get the job done.
We need new faces in leadership at DOJ! That means individuals in leadership positions who have demonstrated a commitment to equal justice for all!Experts in justice rather than political and bureaucratic retreads!Time to value “real life” experiences and achievements over past participation in managing a failed and floundering DOJ bureaucracy that has been “AWOL” on equal justice and immigrant justice for far too long.
Yes, we need a “good manager” at Justice. But, a manager who has seen the problems with the justice system first-hand, through litigation or advocacy against the regime’s abuses, particularly in the Immigration Courts and with racist and unconstitutional immigrant bashing “policies.” A leader familiar with the problems at Justice, but not part of those problems in the past. Sure, that person will need personnel experts and some “bureaucratic insiders” to get the job done. But, they should be part of the team, not driving the train.
There will be no justice for all Americans without justice in our Immigration Courts! So far, I haven’t heard a direct acknowledgement and embracing of that simple fact from the Biden-Harris team. That’s a matter that should be of concern to all of us in the NDPA!
That’s why it’s so important for our voices to be heard now! Before the “train leaves the station” without the NDPA on board, which is precisely what happened in 2008!
How “low can EOIR go” before the curtain finally falls on the dangerous and deadly ☠️ Clown Show🤡? Always have to wonder what drives so-called “civil servants” who exhibit a “Milleresque” cowardly desire to pick on kids!
Hey, hey, ho ho, The EOIR Clown Show 🤡 has got to go!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleMe
Friends, you know, and I know, what is the biggest crisis facing the American justice system today. One that undermines and threatens racial justice, social justice, equality before the law, voting rights, American values, and indeed the very foundations of our democratic institutions and our justice system.
It’s imperative that our incoming Administration and its leaders fully recognize the overwhelming importance and extreme urgency of immediately ending the ongoing, deadly, and dangerous “Clown Show” at EOIR – the Executive Office for Immigration Review.
Under the defeated but not yet departed regime, EOIR has been weaponized by White Nationalist nativists to function as America’s Star Chambers. Once envisioned by its founders, including me, as a potential “jewel in the crown” of American justice, EOIR now has become an ungodly nightmare of anti-due process, anti-immigrant propaganda, bad judges, bogus stats, uncontrollable backlogs, malicious incompetence, stupid regulations, daily doses of irrationality, abuse of private attorneys, and institution of “worst practices.” But, it doesn’t have to be that way! No, not at all!
With courage, bold action, and, most important, the right people in place in leadership and key judicial positions, EOIR can be fixed: sooner, not later. The Immigration Courts can, indeed, through teamwork and innovation become the world’s best courts guaranteeing fairness and due process for all, promoting a model of best practices for the Federal Judiciary as a whole, and providing a trained and ready source of due-process oriented judges with strong immigration, human rights, and equal justice backgrounds for the Article III Judiciary and public policy positions.
EOIR will then be positioned for the essential transition to an Article I independent U.S. Immigration Court when we have the votes.
But, it will require a far more progressive, visionary, and aggressive approach than past Democratic Administrations. We must immediately (and legally) clear out the deadwood and get the problem solvers from the New Due Process Army (“NDPA”) — mostly now in the NGO, clinical, and private sectors, folks like you and your colleagues — in place to fix this horribly broken system.
When I wasn’t visiting border, I was trying to understand how the U.S. government could put in place a policy that seemed the very antithesis of what seeking asylum was supposed to be, as articulated in Refugee Act of 1980. I had spent my time before coming to Refugees International researching the writing and passage of that law and the development of the contemporary asylum system since 1980. The Remain in Mexico policy is unprecedented. The U.S. government claims the authority for it lies in a provision of the 1996 immigration law that allows for the return of certain applicants for admission to contiguous territory to await processing. I began researching this provision and it became clear that it was not intended to apply to asylum seekers.
In support of a challenge to the Remain in Mexico program in California federal court, Refugees International and I, with attorneys from Sidley Austin LLP, submitted this brief describing why the Refugee Act forbids the program, a reality that the 1996 law does not change. The argument of the brief is that, when the 1980 Refugee Act was enacted, it was intended to establish a uniform process for consideration of asylum claims that would preclude this return to Mexico approach. A lynchpin in the argument is that there were two versions of the asylum provision of the Refugee Act—one proposed by Congresswoman Holtzman and one by Senator Edward Kennedy. Only the House version provided that asylum seekers at a land border be accorded the same ability to seek asylum as those already in the country. When, in conference, Holtzman’s version was accepted, Congress made a conscious choice in pursuit of uniformity in consideration of asylum requests: that the United States would treat asylum seekers at the border the same as it would all others. And the language mandating uniform treatment of asylum seekers in the 1980 Refugee Act was reiterated in the 1996 immigration law.
. . . .
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The case is Immigrant Defenders Law Center v. Wolf, USDC, C.D. CA.
Read Yael’s intro, her outstanding brief prepared by Sidley Austin LLP, and the “Holtzman Papers” at the above link.Notably, Sidley Austin is one of the great firms that have helped our Round Table with amicus briefs! It’s what happens when you connect the dots among history, research, social justice, and the law. It’s why the Liberal Arts are the wave of a better future and a better Federal Judiciary! It’s all about perspective and problem solving!
Thanks Yael for all that you, Refugees International, and great pro bono lawyers like Sidley Austin do for justice and humanity.
The real problem here: A disgraceful Supremes’ majority 🏴☠️ that improperly “greenlighted” this totally illegal, racist-inspired, “crime against humanity,” cooked up by neo-Nazi hate monger Stephen Miller ☠️🤮, after it had properly and timely been enjoined by lower Federal courts. And, a complicit EOIR that consistently fails to provide due process and justice to asylum seekers is a huge part of the problem.
Unlike the Supremes, the EOIR Clown Show 🤡 can be removed and justice at all levels improved just by a putting the right experts from the NDPA in charge right off the bat.
Democratic Administrations, particularly the Obama Administration, have a history of not getting the job done when it comes to achievable immigration reforms within the bureaucracy. If you don’t want four more years of needless death, disorder, demeaning of humanity, and deterioration of the most important “retail level” of our justice system, let the incoming Biden Administration know: Throw out the EOIR Clown Show and bring in the experts from the NDPA to turn the Immigration Courts into real, independent courts of equal justice and humanity that will be a source of pride, not a deadly and dangerous national embarrassment!
Contrary to all the mindless “woe is me” suggestions that it will take decades to undo Stephen Miller’s (is he really that much smarter than any Democrat politico?) racist nonsense, EOIR is totally fixable — BUT ONLY WITH THE RIGHT FOLKS FROM THE NDPA IN CHARGE!
It’s only “mission impossible” if the Biden-Harris Administration approaches EOIR with the same indifference, lack of urgency, and disregard for expertise and leadership at the DOJ that has plagued past Dem Administrations on immigration, human rights, and social justice.
It won’t take decades, nor will it take zillions of taxpayer dollars! With the right folks in leadership positions at EOIR, support for independent problem solving (not mindless micromanagement) from the AG & DOJ, and a completely new BIA selected from the ranks of the NDPA, we will see drastic improvements in the delivery of justice at EOIR by this time next year. And, that will just be the beginning!
No more clueless politicos, go along to get along bureaucrats, toadies, and restrictionist holdovers calling the shots at EOIR, America’s most important, least understood, and “most fixable” court system! No more abuse of migrants and their representatives! No more ridiculous, “Aimless Docket Reshuffling” generating self-created backlogs! No more vile and stupid White Nationalist enforcement gimmicks being passed off as “policies!” No more “Amateur Night at The Bijou” when it comes to administration of the immigrant justice system at the DOJ under Dems!
Get mad!Get angry! Stop the nonsense! Tell every Democrat in Congress and the Biden Administration to bring in the NDPA experts to fix EOIR! Now! Before more lives are lost and futures ruined! It won’t get done if we don’t speak out and demand to be heard!
This is our time! Don’t let it pass with the wrong people being put in charge — yet again! Don’t be “left at the station” as the train of immigrant justice at Justice pulls out with the best engineers left standing on the platform and the wrong folks at the controls! Some “train wrecks” aren’t survivable! 🚂☠️⚰️
Dumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under license“Sheltering in Cages” by John Darkow Reproduced under licenseJeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com Republished under license
CRUELTY TO migrant children, a trademark of the Trump administration’s immigration policy, did not cease when officials reversed course in the face of public outrage two years ago and stopped wrenching toddlers, tweens and teens from their parents — with no plan or process to reunite them. It has continued apace under cover of the pandemic, which the White House has used as an all-purpose pretext for ignoring child-protection laws and diplomatic agreements governing asylum, and, without even a nod to due process, expelling unaccompanied children who cross the border seeking refuge.
A federal judge has now halted that practice even as he acknowledged the administration’s far-reaching powers in the midst of a public health emergency. Those powers are broad, U.S. District Judge Emmet G. Sullivan ruled, but do not enable the government to send minors packing without affording them a chance to have their asylum claims heard.
At least 13,000 children have been detained by Border Patrol officers and swiftly thrown out of the country under an emergency decree that has effectively sealed off the southern border to most migrants since the spring. Administration officials justified the measure in the name of protecting the country from a potential influx of migrants carrying the coronavirus — but performed no testing, and provided no data, to substantiate their stance.
Given infection rates in Mexico and Central America, it may be reasonable to assume that some migrants, including unaccompanied minors, might have contracted covid-19. It may also be the case, however, as the ACLU argued in court, that the practice of expelling young migrants actually exposes U.S. border authorities to more risk — in the course of holding them while flights are arranged to their home countries in Central America or elsewhere — than they would otherwise face if the migrants were placed in shelters that have the capacity to adopt social distancing and other precautions. Judge Sullivan, for his part, said the government had asserted its “scientific and technical expertise” to justify its policy of evicting young migrants — but provided none by way of actual evidence.
As it happens, it occurred to at least some administration officials, early on in the pandemic, that migrant children deserved some special consideration. When the policy of suspending asylum was first rolled out, children who crossed the border were exempted. That was quickly reversed, however, with a spokesman saying that minors would be returned to their countries of origin on a “case by case basis.” In the ensuing months, however, virtually all have been expelled.
Anti-trafficking and other laws provide for protections for unaccompanied minors who arrive in this country. The administration has seized on the pandemic to disregard those, along with other long-standing measures and practices that set procedures for migrants seeking refuge here. A more humane approach, in line with American traditions and values, would have established a process for testing and quarantining, at least for migrant children, as they pursued asylum claims. But humane policy is anathema to the Trump administration, and the result is thousands of children who have been subjected to unwarranted hardship and risk.
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Remembers, the victims are largely dead, deported, or still suffering! The “perps” — including the “Perp in Chief,” “Gruppenfuhrer Miller,” Jeff “Gonzo Apocalypto” Sessions, “Wolfman the Illegal,” and “Billy the Bigot” remain at large, even profiting from and bragging about their “crimes against humanity.” This is a “functioning democracy?” No way!
We’ve all been subjected to the disingenuous writings of pundits babbling on about the resilience of American democracy in the face of a fascist president and his corrupt anti-democracy party of cowards and enablers. Hogwash!
Make no mistake about it, American democracy is on the ropes! Basically, we’re watching a corrupt President who lost the election by over 6 million votes and 74 electoral votes engage in systematic frivolous, abusive, baseless litigation intended to destroy our nation, undermine our national security, and disenfranchise voters. It’s a disgusting, overtly racist, dishonest performance that would have any other individual in America and his motley band of unethical lawyers in jail for contempt and conspiracy to obstruct justice! But, Trump and his cronies continue to operate outside the law!
We owe our existence as a nation less to any “structural integrity” and much more to a relatively few courageous, smart, highly motivated members of the resistance: immigration, human rights, and civil rights lawyers; African American women; non-right-wing journalists; Democratic legislators; scientists and medical professionals; a limited number of Federal Judges, mostly at the District Court and Immigration Court levels (and specifically excluding any current BIA Member, EOIR “Manager,” or Supreme Court Justice not named Sotomayor, Kagan, and (sort of) Breyer); courageous DACA kids; and some Federal Career Civil servants not working at ICE or CBP.
The “resilience of American institutions” view is largely that of a privileged minority who haven’t been deported to possible torture or death without any process at all (let alone “due” process), haven’t been illegally separated from beloved family members, aren’t rotting in private prisons (the “New American Gulag”) for the “crime” of seeking justice, aren’t struggling with unemployment or difficulty putting food on the table while Moscow Mitch and his elites focus on confirming unqualified Federal Judges, haven’t had family members shot by the police, haven’t had family members unnecessarily suffer and die because of the worst President in U.S. history’s maliciously incompetent failure to provide leadership and any systematic strategy for controlling a pandemic, and haven’t had to put their lives and professional reputations on the line in a failing Justice system that has enabled grotesque abuses by the likes of Jeff “Gonzo Apocalypto” Sessions, Billy the Bigot Barr, Noel Francisco, and the rest of their band of unethical Government lawyers.
The Biden Administration must do a thorough housecleaning of the corrupt DHS and DOJ bureaucracies that carried out the illegal, immoral, racist, White Nationalist agenda developed by neo-Nazi Stephen Miller and his cowardly gang of brownshirts!
And, as a nation, we need to think carefully about the implications of a life-tenured Supreme Court majority that, since their initial feckless performance on the “Muslim Ban” cases, time and time again failed to forcefully and unanimously stand up for our democracy, human decency, and those defending them in the face of overt, racism and hate driven, Executive tyranny! A Supremes’ majority that has disgracefully and spinelessly embraced the “Dred Scottification” of “the other” (mostly immigrants and those of color). It’s not rocket science! And some of our “elite law schools” seemed to have forgotten to teach “Con Law 101” and “Basic Ethics” to aspiring right wing judges!
It’s less about institutions than it is about the courageous individuals who uphold them! And, our future depends on the Biden-Harris Administration putting these folks “in the game” to insure that an unmitigated disaster like the Trump regime, it’s rampant illegality and inhumanity, and its “malicious incompetence” can never, ever, happen again! And, we must at least start the process of developing a better and more courageous Federal Judiciary for the future!
Due Process Forever! Complicity in the face of tyranny, never!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleBIA Members Unwind After Ignoring Mixed Motive, Failing To Analyze Evidence, Aiding Their “Partners” At ICE In Demeaning Justice, & Shafting More Asylum Seekers https://www.flickr.com/photos/rasputin243/ Creative Commons License
Here’s the complete (unfortunately) unpublished decision from the 5th Circuit (which seldom sees a deportation order they don’t want to “rubber stamp”) in Berhe v.Barr:
As this Court has recognized, “when [an] alien appears pro se, it is the IJ’s duty to ‘fully develop the record.’” Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002) (quoting Jacinto v. INS, 208 F.3d 725, 733-34 (9th Cir. 2000)). Despite this long-recognized obligation, the record in this case demonstrates that this duty is not always fulfilled; and that the consequence may be unfairness and injustice to the pro se petitioner who is unable to develop the record without guidance and assistance. We respectfully submit that this Court should use this case to provide much-needed guidance to IJs on the scope of their duty to work with pro se respondents to elicit the information necessary to develop the factual record. Based upon our own extensive experience, we are of the view that this can be done efficiently and effectively by conscientious IJs, so long as the rule that they are required to do so is clear.
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Thanks so much to out “Team of Pro Bono Heroes” at Sullivan & Cromwell, NY:
Philip L. Graham, Jr.
Amanda Flug Davidoff
Rebecca S. Kadosh
Joseph M. Calder, Jr.
This regime has appointed mostly judges lacking experience representing individuals in Immigration Court and then compounded the problem with:
Mindless “haste makes waste” enforcement gimmicks (often supported by knowingly false or misleading narratives) imposed by political hacks at DOJ and Falls Church;
A BIA lacking expertise and objectivity that instead of focusing on due process for those in Immigration Court, spews forth “blueprints for denial and deportation” without regard for statutory, Constitutional, and human rights;
A system that has elevated “malicious incompetence” and “worst judicial practices” to a “dark art form.”☠️
TIME FOR COURAGEOUS NEW IMMIGRATION LEADERSHIP!
By Paul Wickham Schmidt
It’s time for the “EOIR Clown Show” in Falls Church to go! Bring in competent jurists and administrators from the NDPA: practical scholars and problem solvers with real life skills developed by saving lives from this broken and biased system. Real jurists with expertise in human rights and courage, who will make due process, fundamental fairness, humane values, and “best judicial practices” the only objectives of the Immigration Courts. Jurists who will courageously resist political interference and improper and unethical weaponization of the Immigration Courts by any Administration.
Let the incoming Biden-Administration know that you won’t accept failed “retreads” from the past and “go along to get along” bureaucrats running and comprising what is probably the most important and significant court system in America from an equal justice, social justice, constitutional development, and saving human lives standpoint.
This is the “retail level” of our justice system: Thefoundation upon which the rest of our legal system all the way up to a tone-deaf, flailing, failing, and generally spineless Supremes stands! This is a court system that the Biden Administration can fix without Mitch McConnell!
The members of the NDPA are the ones who have been fighting in the trenches (and at the borders) to save lives, advance social justice, insure equal justice for all, end institutional racism, and preserve our democracy in the face of a tyrannical, unscrupulous, corrupt, racially biased, anti-democracy regime and its enablers! Many have sacrificed careers, health, not to mention financial security in this fight!
Don’t let those who watched from the sidelines, above the day-to-day fray, or were part of the problem swoop in and take control after the battle has been won!
Get mad! Get vocal! Get active! Call everyone you know in the incoming Administration! Demand that the NDPA and its members be given the leadership roles they have earned and deserve in remaking EOIR and reforming a thoroughly corrupt, politicized, and dysfunctional immigration bureaucracy across our Government!
Don’t let the Dems turn their back on achievable reforms and “shut out” the reformers and problem solvers in the advocacy sector (who have “carried the water” for Dems for decades) as has been the case in the past! Don’t let the mistakes and short-sightedness of the past destroy YOUR chances for a better future!
Don’t let timidity, ignorance, indifference, and fear of “rocking the boat” in the name of justice, due process, and human dignity replace “malicious incompetence” in Government!
Due Process Forever! Same old, same old, never! It’s time for real change and reform! It’s YOUR time to shine! Let YOUR voices be heard!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleMe
FROM THE HEIGHTS OF KASINGA TO THE DEPTHS OF AMERICA’S DEADLY STAR CHAMBERS: Will The Biden Administration Tap The New Due Process Army To Fix EOIR & Save Our Nation?
By Paul Wickham Schmidt
Retired U.S. Immigration Judge
Courtside Exclusive
Nov. 12, 2020
I. INTRODUCTION — ABROGATION OF ASYLUM LAWS IN THE FACE OF EXECUTIVE LAWLESSNESS & RACIAL BIAS IS A NATIONAL DISGRACE
In Matter ofKasinga, I applied the generous well-founded fear standard for asylum established by the Supreme Court in Cardoza-Fonseca to reach a favorable result for a female asylum applicant. It was based on a particular social group of women of the tribe who feared persecution in the form of female genital mutilation, or “FGM.” I sometimes think of this as the “high water mark” of asylum law at the BIA.
Since then, proper, generous application of asylum laws to serve their intended purpose of flexibly, fairly, and consistently extending protection to those facing persecution has been steadily declining. The Trump Administration essentially overruled Cardoza-Fonseca and abolished asylum law without legislative change.
Both Congress and the Court have failed to stand up to this egregious abuse of the law, constitutional due process, and simple human decency that presents a “clear and present danger” to our nation’s continued existence.
Indeed, the performance of the Court in the face of the Administration’s overt assault on asylum has been so woeful as to lead me to wonder whether any of the Justices, other than Justice Sonia Sotomayor, have actually read the Cardoza-Fonseca decision. Certainly, most of them have failed to consistently and courageously carry forth its spirit and to grapple with their legal and moral responsibility for letting a lawless Executive trample the constitutional and human rights, as well as the human dignity, of the most vulnerable among us.
How did we get to this utterly deplorable state of affairs and what can the Biden Administration do to save us? Will they act boldly and courageously or continue the tradition of ignoring abuses directed against asylum seekers and the deleterious effect it has on our society and the rule of law?
I guarantee that racial justice and harmony will continue to elude us as a nation unless and until we come to grips with the ongoing abuses in the Immigration Courts — “courts” that no longer function as such in any manner except the misleading name!
II. BACKGROUND
To understand what has happened since Kasinga, here’s some background. In U.S. asylum law, there generally has been an “inverse relationship” between geography and success. The further your home country is from the U.S., the more generous the treatment is likely to be.
Thus, folks like Kasinga from Togo, or those from Tibet, Ethiopia, China, or Eritrea, with relatively difficult access to our borders, tend to do relatively well. On the other hand, those from Mexico, Haiti, Central America, and South America, who have easier access to our borders, tend to be treated more restrictively.
This reaction has been driven by a hypothesis with limited empirical support, but which has been accepted in some form or another by all Administrations, regardless of party, since the enactment of the Refugee Act of 1980. That is, the belief that human migration patterns are driven primarily by the policies and legal regimes in prosperous so-called “receiving countries” like the U.S.
Thus, generous and humane asylum policies will encourage unwanted flows of asylum seekers across international borders. And, of course, we all know that nothing threatens the national security of the world’s greatest nuclear superpower more than a caravan or flotilla of desperate, unarmed asylum seekers and their families trying to turn themselves in at the border or to the Border Patrol shortly after arrival.
Conversely, restrictive policies including rapid, unfair rejection, border turn-backs, mass detentions, criminal sanctions, family separation, denials of fair hearings, walls, border militarization, and hostile, often racially and religiously charged rhetoric, will cause asylum seekers to “stay put” thus deterring them and reducing the number of applications threatening our national security. In other words, encourage legitimate asylum seekers to “perish in place.” Often, these harsh policies are disingenuously characterized as being, at least partially, “for the benefit of asylum seekers” by discouraging them from undertaking dangerous journeys and paying human smugglers only to be summarily rejected upon arrival.
This “popular hypothesis” largely ignores the effect of conditions in refugee sending countries, including both geopolitical and environmental factors. For example, the current migration flow is affected by the practical difficulties of travel in the time of pandemic and by economic failures and cultural and political changes resulting from unabated climate change, not just by the legal restrictions that might be in place in the U.S. and other far-away countries.
It also factors out the “business narratives” of human smugglers designed to manipulate asylum seekers in ways that maximize profits under a variety of scenarios and to take maximum advantage of mindlessly predictable government “enforcement only” strategies.
Indeed, there is plenty of reason to believe that such policies serve largely to maximize smugglers’ profits, extort more money from desperate asylum seekers, but with little long-term effect on migration patterns. The short-term reduction in traffic, often hastily mischaracterized as “success” by the government, probably reflects in part “market adjustments” as smugglers raise their rates to cover the increased risks and revised planning caused by more of a particular kind of enforcement. That “prices some would-be migrants out of the market,” at least temporarily, and forces others to wait while they accumulate more money to pay smugglers.
It also likely increases the number of asylum seekers who die while attempting the journey. But, there is no real evidence that four decades of various “get tough” and “deterrence policies” — right up until the present — have had or will have a determinative long term effect on extralegal migration to the U.S. It may well, however, encourage more migrants to proceed to the interior of the country and take “do it yourself” refuge in the population, rather than turning themselves in at or near the border to a legal system that has been intentionally rigged against them.
Regardless of its empirically questionable basis, “deterrence theory” has become the primary driving force behind government asylum policies. Thus, the fear of large-scale, out of control “Southern border incursions” by asylum seekers has driven all U.S. Administrations to adopt relatively restrictive interpretations and applications of asylum law with respect to asylum seekers from Central America.
Starting with a so-called “Southern border crisis” in the summer of 2014, the Obama Administration took a number of steps intended to discourage Central American asylum seekers. These included: use of so-called “family detention;” denial of bond; accelerated processing of recently arrived children and adults with children; selecting Immigration Judges largely from the ranks of DHS prosecutors and other Government employees; keeping asylum experts off the BIA; taking outlandish court positions on detention and the right to counsel for unrepresented toddlers in Immigration Court; and dire public warnings as to the dangers of journeying to the U.S. and the likelihood of rejection upon arrival.
These efforts did little to stem the flow of asylum seekers from the Northern Triangle. However, they did result in a wave of “Aimless Docket Reshuffling” (“ADR”) at the Immigration Courts that accelerated the growth of backlogs and the deterioration of morale at EOIR. (Later, Sessions & Barr would “perfect the art of ADR” thereby astronomically increasing backlogs, even with many more judges on the bench, to something approaching 1.5 million known cases, with probably hundreds of thousands more buried in the “maliciously incompetently managed” EOIR (non)system).
Success for Central American asylum applicants thus remained problematic, with more than two of every three applications being rejected. Nevertheless, by 2016, largely through the heroic efforts of pro bono litigation groups, applicants from the so-called “Northern Triangle” – El Salvador, Honduras, and Guatemala – had achieved a respectable approval rate ranging from approximately 20% to 30%.
Many of these successful claims were based on “particular social groups” composed of battered women and/or children or family groups targeted by violent husbands or boyfriends, gangs, cartels, and other so-called “non-governmental actors” that the Northern Triangle governments clearly were “unwilling or unable to control.”
III. CROSSHAIRS
Upon the ascension of the Trump Administration in 2017, refugee and asylum policies became driven not only by “deterrence theory,” but also by racially, religiously, and politically motivated “institutionalized xenophobia.” The initial target was Muslims who were “zapped” by Trump’s so-called “Muslim ban.” Although initially properly blocked as unconstitutional by lower Federal Courts, the Supreme Court eventually “greenlighted” a slightly watered-down version of the “Muslim ban.”
Next on the hit list were refugees and asylees of color. This put Central American asylum seekers, particularly women and children, directly in the crosshairs.
In something akin to “preliminary bombing,” then Attorney General Jeff Sessions launched a series of false and misleading narratives against asylum seekers and their lawyers directed at an audience consisting of Immigration Judges and BIA Members who worked at EOIR and thus were his subordinates.
Without evidence, Sessions characterized most asylum seekers as fraudulent or mala fide and blamed them as a primary cause for the population of 11 million or so undocumented individuals estimated to be residing in the U.S. He also accused “dirty immigration lawyers” of having “gamed” the asylum system, while charging “his” Immigration Judges with the responsibility of “assisting their partners” at DHS enforcement in stopping asylum fraud and discouraging asylum applications.
IV. THE ATTACK
While not directly tampering with the “well-founded fear” standard for asylum, with Sessions leading the way, the Administration launched a three-pronged attack on asylum seekers.
First, using his power to review BIA precedents, Sessions reversed the prior precedent that had facilitated asylum grants for applicants who had suffered persecution in the form of domestic abuse. In doing so, he characterized them as “mere victims of crime” who should not be recognized as a “particular social group.” While not part of the holding, he also commented to Immigration Judges in his opinion that very few claimants should succeed in establishing asylum eligibility based on domestic violence.
He further imposed bogus “production quotas” on judges with an eye toward speeding up the “deportation railroad.” In other words, Immigration Judges who valued their jobs should start cranking out mass denials of such cases without wasting time on legal analysis or the actual facts.
Later, Sessions’s successor, Attorney General Bill Barr, overruled the BIA precedent recognizing “family” as a particular social group for asylum. He found that the vast majority of family units lacked the required “social distinction” to qualify.
For example, a few prominent families like the Rockefellers, Clintons, or Kardashians might be generally recognized by society. However, ordinary families like the Schmidts would be largely unknown beyond their own limited social circles. Therefore, we would lack the necessary “social distinction” within the larger society to be recognized as a particular social group.
Second, Sessions and Barr attacked the “nexus” requirement that persecution be “on account of” a particular social group or other protected ground. They found that most alleged acts of domestic violence or harm inflicted by abusive spouses, gangs and cartels were “mere criminal acts” or acts of “random violence” not motivated by the victim’s membership in any “particular social group” or any of the other so-called “protected grounds” for asylum. They signaled that Immigration Judges who found “no nexus” would find friendly BIA appellate judges anxious to uphold those findings and thereby retain their jobs.
Third, they launched an attack on the long-established “nongovernmental actor” doctrine. They found that normally, qualifying acts of persecution would have to be carried out by the government or its agents. For non-governmental actions to be attributed to that government, that government would basically have to be helpless to respond.
They found that the Northern Triangle governments officially opposed the criminal acts of gangs, cartels, and abusers and made at least some effort to control them. They deemed the fact that those governments are notoriously corrupt and ineffective in controlling violence to be largely beside the point. After all, they observed, no government including ours offers “perfect protection” to its citizens.
Any effort by the government to control the actor, no matter how predictably or intentionally ineffective or nominal, should be considered sufficient to show that the government was willing and able to protect against the harm. In other words, even the most minimal or nominal opposition should be considered “good enough for government work.”
V. THE UGLY RESULTS
Remarkably, notwithstanding this concerted effort to “zero out” asylum grants, some individuals, even from the Northern Triangle, still succeed. They usually are assisted by experienced pro bono counsel from major human rights NGOs or large law firms — essentially the “New Due Process Army” in action. These are the folks who have saved what is left of American justice and democracy. Often, they must seek review in the independent, Article III Federal Courts to ultimately prevail.
Some Article IIIs are up to the job; many aren’t, lacking both the expertise and the philosophical inclination to actually enforce the constitutional and statutory rights of asylum seekers — “the other,” often people of color. After all, wrongfully deported to death means “out of sight, out of mind.”
However, the Administration’s efforts have had a major impact. Systemwide, the number of asylum cases decided by the Immigration Courts has approximately tripled since 2016 – from approximately 20,000 to over 60,000, multiplying backlogs as other, often older, “ready to try” cases are shuffled off to the end of the dockets, often with little or no notice to the parties.
At the same time, asylum grant rates for the Northern Triangle have fallen to their lowest rate in many years 10% to 15%. Taken together, that means many more asylum denials for Northern Triangle applicants, a major erosion of the generous “well-founded fear” standard for asylum, and a severe deterioration of due process protections in American law. Basically, it’s a collapse of our legal system and an affront to human dignity. The kinds of things you might expect in a “Banana Republic.”
VI. WILL BIDEN FIX EOIR OR REPEAT THE MISTAKES OF THE OBAMA ADMINISTRATION?
The intentional destruction of U.S. asylum law and the weaponization of EOIR in support of the White Nationalist agenda have undermined the entire U.S. justice system. It actively encourages both dehumanization (“Dred Scottification”) and institutionalized racism all the way up to a Supreme Court which has improperly enabled large portions of the unlawful and unconstitutional anti-migrant agenda.
The Biden Administration can reverse the festering due process and human rights disaster at EOIR. Unlike improving and reforming the Article III Judiciary, it doesn’t need Mitch McConnell’s input to do so.
Biden can appoint an Attorney General who will recognize the importance of putting immigration/human rights/due process experts in charge of EOIR. He can replace the current BIA with real appellate judges whose qualifications reflect an unswerving commitment to due process, expert application of asylum laws in the generous manner once envisioned by the Supreme Court in Cardoza-Fonseca, implementing “best” practices, judicial efficiency, and judicial independence.
Biden can return human dignity to an improperly weaponized system designed to “Dred Scottify” the other. He can appoint better qualified Immigration Judges through a merit-based system that would encourage and give fair consideration to the many outstanding candidates who have devoted their professional lives to fighting for due process, fundamental fairness, and immigrants’ rights, courageously, throughout America’s darkest times!
That, in turn, will create the necessary conditions to institutionalize the EOIR reforms through the legislative creation of an independent, Article I Immigration Court that will be the “gemstone” of American justice rather than a national disgrace! One that will eventually fulfill the noble, now abandoned, “EOIR Vision” of “through teamwork and innovation being the world’s best tribunals, guaranteeing fairness and due process for all.”
The Obama Administration shortsightedly choose to “freeze out” the true experts in the private advocacy, NGO, academic, clinical teaching, and pro bono communities. The results have been beyond disastrous.
In addition to killing, maiming, and otherwise harming humans entitled to our legal protection, EOIR’s unseemly demise over the past three Administrations has undermined the credibility of every aspect of our justice system all the way to the Supreme Court as well as destroying our international leadership role as a shining example and beacon of hope for others.
The talent in the private sector is out there! They are ready, willing, and very able to turn EOIR from a disaster zone to a model of due process, innovation, best practices, fair, efficient, and practical judging, and creative judicial administration. One that other parts of the U.S. judicial system could emulate.
Will the Biden Administration heed the call, act boldly, and put the “right team” in place to save EOIR? Or will they continue past Democratic Administrations’ short-sighted undervaluation of the importance of providing constitutionally required due process, equal justice, and fundamental fairness to all persons in the U.S. including asylum applicants and other migrants.
I’ve read a number of papers and proposals on how to “fix” immigration and refugee policies. None of them appears to recognize the overriding importance of making EOIR reform “job one.”
For once, why can’t Democrats “think like Republicans?” When John Ashcroft and Kris Kobach and later Jeff Sessions and Stephen Miller set out to kneecap, politicize, and weaponize the U.S. justice system, what was their “starting point?” EOIR, of course!
The Obama Administration’s abject failure to effectively address and reverse the glaring mess at EOIR left by the “Ashcroft reforms” basically set the table for Sessions’s even more invidious plan to weaponize EOIR into a tool for xenophobia and White Nationalist nativism. The problems engendered by allowing the politicization and weaponization of EOIR have crippled the U.S. justice system far beyond immigration and asylum law.
Without a better EOIR, fully empowered to lead the way legally and insure and enforce compliance, all reforms, from DACA, to detention reform, to restoration of refugee and asylum systems will be less effective, more difficult, and less enduring than they should be. Equal justice for all and an end to institutionalized racism cannot be achieved without bold EOIR reform!
It would also take some of the pressure off the Article III Courts. Time and again they are called upon, with disturbingly varying degrees of both willingness and competence in the results, to correct the endless stream of basic legal errors, abuses of due process, and inane, obviously biased and counterproductive policies regularly flowing from EOIR and DOJ. Indeed, unnecessary litigation and frivolous, ethically questionable, often factually inaccurate or intentionally misleading positions advanced by the DOJ in immigration matters now clog virtually all levels of the Article III Federal Courts right up to the docket of the Supreme Court!
So far, what I haven’t seen is a recognition by anyone on the “Biden Team” that the experts in the private bar who have been the primary fighters in the trenches, almost singlehandedly responsible for preserving American justice and saving our democracy from the Trump onslaught, must be placed where they belong: in charge of the effort to rebuild EOIR and those who will be chosen to staff it!
Continue to ignore the New Due Process Army and their ability to right the listing American ship of state at peril! It’s long past time to unleash the “problem solvers” on government and give them the resources and support necessary to use practical scholarship, technology, best practices, and “Con Law/Human Rights 101” to solve the problems!
No “magic list,” stakeholders committees, or consensus-building groups can take the place of putting expert, empowered, practical problem solvers in charge of the machinery. We can’t win the game with the best, most talented, most knowledgeable, most courageous players forever sitting on the bench!
The future of our republic might well depend on whether the Biden-Harris Administration can get beyond the past and take the courageous, far-sighted actions necessary to let EOIR lead the way to a better future of all Americans! We can only hope that they finally see the light. Before it’s too late for all of us!
Due Process Forever! Complicity & Complacency, Never!
About 11:30 AM yesterday, I was on our screen porch working on Courtside. I heard the first joyful shouts. Simultaneously, my iPad screen told me that Pennsylvania had been called for Biden. I bellowed out a loud, YES! Then, I put up our American flag.
At 5 PM, by arrangement on the neighborhood e-Mail, folks started streaming out their doors, standing on the curb, glasses and champaign bottles in hand, for a toast to Joe Biden, Kamala Harris, the return of democracy, rationality, and human decency. Then we mixed and mingled, of course in a socially distant way. Dogs and kids were welcome. “Finally, able to breathe again” was a common refrain, as was “national nightmare coming to an end.”
Our neighbors are from all backgrounds and many different origins: doctors, lawyers, teachers, techies, designers, consultants, Federal bureaucrats, immigrants, parents, grandparents, singles. One mother had been naturalized just so she could vote in this election. All of us shared relief and joy at the return of sane, humane sound government and informed, reasonable dialogue on how to resolve our pressing national problems.
Later we adjourned to a back yard fire pit and celebrated and chatted some more, before drifting away to our respective homes. Cathy and I left the empty bottles and plastic cups on our lawn, intending to clean up in the daylight. But, by the time we arose, one of the neighbors had already done the job for us.
The aura of optimism still hung in the air today. At least for now, the world looks a lot brighter than it did four years ago.
Official portrait of Vice President Joe Biden in his West Wing Office at the White House, Jan. 10, 2013. (Official White House Photo by David Lienemann).Vice President Elect Kamala Harris Official Senate Photo Public Realm
🇺🇸🗽⚖️👍😎COURTSIDE ELECTION SPECIAL: HARRIS, BIDEN, DEMOCRACY BIG WINNERS — THIS TIME AROUND, THE MAJORITY RULES, AS DEM DUO SWEEPS TO VICTORY IN BOTH POPULAR VOTE AND ELECTORAL COLLEGE!
By Paul Wickham Schmidt
Courtside Exclusive
Nov. 7, 2020. Vice President and soon to be President Elect Joe Biden’s 33-year long quest for the U.S. Presidency will come to fruition on January 20, 2021. His running mate and soon to be Vice President Elect Senator Kamala Harris will become the first woman and the first African American to hold the number two job.
Although the results of the Presidential contest were long in coming, they basically fulfilled pre-election predictions. Harris-Biden are on pace to win a clear majority of the popular vote by over four million votes, in the process compiling the highest vote total in U.S. election history.
Unlike 2016, this time the popular vote translates into an insurmountable 59 vote margin and a majority in the electoral college. Fittingly, Biden’s apparent victory in Pennsylvania put him over the top. But, with the Biden Harris team in the lead in the “undecided” states of Nevada, Arizona, and Georgia that electoral margin seems likely to widen when the final vote is tabulated. Only the remaining states of Alaska and North Carolina appear to be falling into the Trump column, which would still leave the soon-to-be former President woefully short of an electoral majority.
Indeed, he is now on pace to lose by the same electoral majority than he compiled in defeating Clinton notwithstanding losing the popular vote to her by millions. At that time, Trump characterized his electoral college victory as a “landslide,” notwithstanding his very clear defeat in the popular vote. While compiling a head-scratchingly large cult-like following of tens of millions that propelled him to victory on 2016 and helped prop up his bizarrely incompetent presidency, Trump was never popular with the majority of Americans, except in his own muddled mind.
In winning a convincing victory, if not the overwhelming one that Democrats hoped for and that many pundits and pollsters predicted, Biden/Harris appear to have held every state won by Hillary Clinton in 2016 while “flipping” Biden’s birth state of Pennsylvania, Michigan, and Wisconsin by narrow margins. If their narrow current leads in Arizona and Georgia hold, they will add “flips” of these traditional GOP strongholds to their list of election achievements.
Biden becomes only the third candidate since Franklin D. Roosevelt in 1932 to unseat a sitting elected President, the others being President Ronald Reagan and President Bill Clinton. (President Jimmy Carter unseated President Gerald Ford in 1980, but Ford was never elected to either the Vice Presidency or the Presidency.) Biden also becomes the fourth Vice President in the past 70 years to later win a Presidential election.
Harris is a graduate of Howard University and Cal Hastings Law. Her win is a huge milestone for “historically black colleges” and their many talented graduates throughout our nation.
Biden is a graduate of the University of Delaware and Syracuse Law. The Harris-Biden tandem may be the first time that “non—Ivy” lawyers have held both of our top elected positions. That’s a tribute to the many fine law schools outside the Ivy League that produce the vast majority of the nation’s legal talent and fuel most of the “practical lawyering and usable scholarship” that keeps our legal system afloat.
Hopefully, our new leaders will keep that in mind when filling key positions in their upcoming Administration and particularly in making Federal Judicial appointments at all levels. That’s especially important considering the disturbing failure of many graduates of so-called “elite” law schools serving us as public officials and judges to effectively and courageously stand up to the all out assault on the rule of law, ethics, constitutionally required due process and equal protection, and human decency by the Trump regime.
Any surviving functionality and integrity in our courts and public institutions is largely the result of courageous and under-appreciated attorneys, many working pro bono, who have fought at the “retail level” of our justice system to preserve those human rights and fundamental values upon which our legal system rests. All too often, they suffered bullying and abuse from the cowardly Trump regime for their efforts, while life-tenured Federal Judges failed in their duty to intercede to protect officers of their courts and their clients whose rights were being trampled by a group of out of control White Nationalist bigots.
Thus, the Biden-Harris team will enter what is probably the most consequential Presidency in U.S. history at one of the most most difficult and contentious times. With an out of control pandemic, high unemployment, rapidly deteriorating environment, festering racism, looming healthcare, opioid, and educational crises, cratering international prestige, trade wars, a crippled and demoralized career civil service, a failing judicial system, dysfunctional immigration and refugee systems, lack of trust in Government, disquiet in the intelligence and military communities, lack of competent Executive leadership over the past four years, and about 70.3 million Americans essentially living “in a parallel universe” but still our fellow citizens and essential to our society, saving American democracy would be a daunting task for any leaders. Some would say “mission impossible.” But, I can’t think of anyone better suited than the Biden-Harris team to undertake that mission.
In a democracy, successful outcomes are never guaranteed. But, if our democracy turns out to be beyond reclamation, it almost certainly will be because “We the People” fail to give our new leaders the support they need and deserve.
As for Trump, ever the total boor and purveyor of hate, division, and lies, he sent a missive from his golf course saying that he wouldn’t concede and pledged to continue to pelt our already crumbling court system with yet more frivolous litigation. Thankfully, most news commentators chose to read only a few lines of his incoherent rant before returning to the real news surrounding Biden and Harris. How quickly even the most bombastic ones with the biggest egos become “yesterday’s news.”
So, unsurprisingly, Trump, who undoubtedly will go down as the worst, most corrupt, and least competent President in U.S. history, will exit with the same disturbing lack of class, honesty, and fundamental human decency that has characterized his four-year “nightmare reign.” Meanwhile, as he relaxes, pouts, and sulks on the links, the pandemic that he failed to take reasonable steps to address or control, and consistently and dishonestly tried to downplay, continues to rage unabated and ravish our nation.
One of the hardest hit areas: The Upper Midwest, particularly my native state of Wisconsin. That might explain why today Trump is playing golf and Joe Biden and Kamala Harris are sharing center stage! For a change, its nice to have folks who represent some of the most admirable human qualities that America has produced getting their time in the spotlight.
The good news: After 12:01 PM on January 20, 2021, the majority of us won’t care about the antisocial antics of the biggest loser of this election!
Hon. A. Ashley Tabaddor President, National Association of Immigration Judges (“NAIJ”)
Here’s a message Judge Tabaddor sent to all Immigration Judges:
Subject: Update on Agency Action to Decertify NAIJ
THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES
November 3, 2020
Dear Colleagues,
Today the Federal Labor Relations Authority reversed two decades of precedent and issued a baseless decision effectively decertifying the National Association of Immigration Judges as the union of immigration judges. See the decision here. We are outraged, though not surprised, by the lack of legal analysis. As dissenting member Ernest DuBester notes, the decision is pure “sophistry.”
This decision is not being rendered in a vacuum. We have suffered an all-out assault on labor and unions from the outset of three executive orders designed to decimate bargaining rights of unions to the most recent executive order designed to transform the federal workforce into an ”at-will” and deeply politicized body. And in the context of immigration judges, this is in line with our experience of undue interference and influence in our independent decision making authority.
We have lost this battle, but we will win the war. The NAIJ has prepared for just this day. We shall continue to fight. We are pursuing any and all available legal and other options.
Your support of NAIJ is now more important than ever. NAIJ needs you. If you have not previously joined NAIJ, join now by contacting us directly. In turn, NAIJ will continue to support immigration judges both individually with management and also as a group through public outreach, media contacts, and work on the Hill. We will need to work together to make sure that misguided policies like quotas and deadlines and micromanagement of IJs are not utilized to target us for discipline or removal from office. Even absent the protection of a collective bargaining agreement, we continue to have rights as federal government employees, including before the Merit System Protection Board. And if nothing else, this highly politicized decision is another compelling exhibit in our case for the creation of an independent Article 1 immigration court.
As always, feel free to reach out to myself or any of the NAIJ board members with any questions or concerns. My personal email address is ashleytabaddor@gmail.com and my cell is (310) 709-3580.
Ashley Tabaddor
President, NAIJ
—
***********************
Unquestionably, the move by the Attorney General to “decertify” the NAIJ (essentially eradicate it) was intended to “punish and silence” Judge Tabaddor and other NAIJ officers who have spoken out about serious due process abuses and chronic mismanagement at EOIR and the DOJ. Indeed, since all other sitting IJs are “muzzled” by the DOJ, and “EOIR Star Chamber” operations have become increasingly more secretive, less transparent, and wildly inconsistent from court to court under the Trump regime, the NAIJ is one of the few sources of accurate information for Congress and the public about the ever-deteriorating conditions in Immigration Court!
Don’t expect this battle for the “heart and soul” of Federal Civil Service and American democracy to go away any time soon!
🇺🇸ONE FINAL PUSH TO SAVE OUR DEMOCRACY ⚖️ — GET OUT EVERY SINGLE VOTE FOR JOE, KAMALA, AND ALL DEMS!
By Paul Wickham Schmidt
Courtside Exclusive
Nov. 2, 2020. As all of us know who have spent our lives working in the fields of immigration and asylum law, there is perhaps nothing so precious to individuals, and perhaps all too rare worldwide, as the right to vote in free and fair elections. Most of us who are not members of minority groups have largely taken that right for granted. But, today in America, the right of universal suffrage has been put in jeopardy by none other than President and his political party.
Behind in the polls and the early voting, and with no ideas for America rather than a continued diet of racism, hate, anti-science, anti-environmentalism, corruption, xenophobia, and final destruction of our democratic norms, Trump and his followers have one final trick up their sleeves. Get a massive turnout on Election Day, declare victory before all the votes are counted, and then throw the final determinations into the GOP-controlled Federal Courts.
The antidote: Get out every last vote in every nook and cranny of America for Biden-Harris and other Dems. A “Blue Wave” on Election Day across the nation, and particularly in “battleground states,” is our best defense against destruction of democracy. Another four years of Trump and the GOP and there will be no democracy left to save!
ImmigrationProf blogger Ingrid Eagly and Steven Shafer in an op/ed in the Los Angeles Times take on President Trump who “[l]ast week, during the final presidential campaign debate, President Trump renewed a claim he has often made: Migrants with pending court dates rarely show up for their hearings. In response to the charge by his Democratic challenger, former Vice President Joe Biden, that the administration’s treatment of would-be immigrants was inhumane, Trump told debate watchers that the number who`come back’ to immigration court is `less than 1%.’
The government’s data, however, tell a far different story.”
Check out the op/ed and the take down of President.
A new fact sheet by Nina Siulc and Noelle Smart of the Vera Institute of Justice summarizes new evidence showing that most immigrants appear for their immigration court hearings. The report includes data from Vera’s Safety and Fairness for Everyone (SAFE) Initiative that provides free representation through a universal access model of representation. Vera researchers found that 98 percent of SAFE clients released from custody have continued to appear for their court hearings. Read the full report for additional information on related research, including Vera’s ongoing evaluation of the New York Immigrant Family Unity Project (NYIFUP).
I[ngrid] E[agly]
***********************
Thanks, Ingrid and Steven! Our “Round Table” has used your scholarship in amicus briefs to educate Federal Courts at all levels about the realities of Immigration Court.
It’s particularly critical in an era where the politicized and “ethically challenged” DOJ often puts forth largely fictionalization versions of their self-manufactured “immigration emergency” that is actually little more than the outcome of studied ignorance, White Nationalism, “gonzo” enforcement, and maliciously incompetent administration of the Federal immigration bureaucracy.
Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
If we kick out the kakistocracy next week, we could put qualified “practical scholars” like Ingrid and others like her in charge and remake both DHS and the Immigration Courts to actually operate as required by Due Process while also fulfilling legitimate law-enforcement objectives. To state the obvious, neither of these objectives is being realized at present. It’s bad for America and for humanity.
For far too long, the wrong individuals, lacking the necessary expertise in immigration and human rights, and also lacking a firm commitment to equal justice under law, have been “in charge” of the Government’s immigration policy and legal apparatus and appointed to the Federal Courts, at all levels. That’s particularly true at the Supremes where only Justices Sotomayor and (some days) Kagan appear “up to the job.”
We will never end institutionalized racism, achieve equal justice for all, and realize the true human and economic potential of America until we bring our broken immigration and refugee systems and our failing Federal Judicial System into line with our Constitutional and national values. That process must start, but certainly will not end, with this election!
