"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.
One is the “practical wisdom” that was
Kronman’s focus. That’s a big topic, of course, but
part of it involves recognition that the function of
the legal system is ultimately to provide answers to
very practical questions.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
[T]he Board in Matter of A-A-R- impermissibly reinterpreted the evidence in a very selective way in order to reach a different conclusion than that reached by the trier of fact. As the Fourth Circuit recently held in reversing the Board, “In conducting clear error review, the BIA may not reweigh evidence or ‘substitute[ ] its own judgment for that of the IJ.’”
For all of the above reasons, a prediction that A-A-R- will not withstand circuit court scrutiny would not be clearly erroneous.
Thanks, Jeffrey, my friend and colleague, for your scholarly exposition of the BIA’s result-oriented sophistry. It’s no coincidence that in erroneously reversing a solid CAT grant to El Salvador the BIA chose, as it seldom does in other than a negative context, to reject a very viable form of mandatory protection, to a country currently in the news, which is available without regard to criminal record, alleged gang membership, and /or discretionary factors.
By choosing to designate it as a rare precedent, the “captive” BIA appears to be fulfilling the political demands of the Trump Administration to be able to argue, contrary to the Supremes, that no fair hearings are necessary in similar cases of illegal removals because an ultimate negative result is foreordained by precedent (even though that is clearly wrong, even under A-A-R-).
Administration lawyers have even gone to the extraordinary extent of trying to— so far unsuccessfully — submit and argue that bogus “predictive denials” — basically the DHS’s position without any opportunity to challenge — can be relied upon by a reviewing Article III court to deny the return of individuals wrongfully deported. What a complete crock and insult to the rule of law, as well as to the judges to which these disingenuous arguments are addressed! 🤬🤮
While “third country removals” are possible for those granted withholding of removal or deferral of removal under the CAT, proper legal procedure and due process require that 1) the DHS seek to reopen the case for designation of a new country of removal (unless such alternative country was previously designated and named in the Immigraton Judge’s order), and 2) the respondent be given a reasonable opportunity to raise any protection claims relating to that country.
Christie Thompson Staff Writer The Marshall Project PHOTO: The Marshall ProjectHon. Sarah Burr Retired U.S. Immigration Judge Knightess of The Round Table Photo Source: Immigrant Justice Corps website
“These all have the same objective, which is to strip immigrants of their rights in court,” said former immigration judge Sarah Burr. “The idea that this would somehow speed up the process is ridiculous. It’s only going to slow it down.”
Burr said that forcing someone to appear in court without an attorney makes it a judge’s responsibility to ensure someone understands what is happening and can make decisions in their case. “That takes a long time,” she said. “You’re being put in an awkward position. You almost become a party instead of the judge.”
It was a “full house:” full of talent, energy, skills, and determination to fight for due process for all! Thanks to all who participated from across the nation. This year’s timely focus was on detention and bond.
I was honored to serve on this distinguished and congenial faculty. Kudos to “Dean” Rekha Sharma-Crawford for her leadership in putting everything together and making it happen! (All while winning two TROs against the DHS overreach in “real time.” Nothing like showing “applied practical scholarship” to inspire and motivate a student body!)
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
From Hon. “Sir Jeffrey” S. Chase:
Hi all: The Supreme Court issued its decision today in Monsalvo-Velazquez v. Bondi, in which our Round Table filed an amicus brief at the request of Petitioner’s counsel.
I’m happy to report that in a 5-4 decision written by Justice Gorsuch (attached), the Court agreed with the position that when the deadline for voluntary departure falls on a weekend or holiday, the period for VD extends to the next business day.
We had explained in our brief that this reading is consistent with long-settled practices in the immigration courts.
Congrats to all, and much thanks to attorneys Collin White and Scott Angstreich of the law firm of Kellogg Hansen for representing us on the brief..
For our new members, this is the fifth time that the Round Table has filed a brief in a winning Supreme Court case. The others are:
Niz-Chavez v. Garland, holding that the INA’s “stop time” rule for cancellation of removal may only be triggered by the filing of an NTA that is a single document, containing all the necessary information (this decision made many thousands eligible for cancellation of removal);
Nasrallah v. Barr, allowing CAT applicants to seek judicial review of factual challenges to a CAT order notwithstanding the limitations created by sections 1252(a)(2)(C) and (D) of the Act;
Wilkinson v. Garland, holding that hardship determinations in cancellation B cases are mixed questions of fact and law, and are therefore reviewable by circuit courts; and
Santos-Zacaria v. Garland, which held that where the BIA commits error in its decision, a respondent need not first seek reopening by the Board in order to exhaust its remedies before seeking judicial review.
The BIA’s use of wrong standard to deny life-saving relief really, really stinks! PHOTO: Wikipedia Commons
Excerpt:
This Circuit has long recognized the clearly erroneous standard, articulating it memorably as requiring the appellate body to find that the factual findings are “wrong with the force of a five-week-old, unrefrigerated dead fish.” Cox Enters., Inc. v. News-Journal Corp., 794 F.3d 1259, 1272 n.92 (11th Cir. 2015) (quoting Parts & Elec. Motors, Inc. v. Sterling Elec. Inc., 866 F.2d 228, 233 (7th Cir. 1988)). Rather than follow this approach, in the case at bar the Board instead treated the immigration judge’s findings like fresh sushi-grade tuna, ready to be cut and served as the BIA wished.
A Helping Hand.jpg Image depicts a child coming to the aid of another in need. Once we have climbed it is essential for the sake of humanity that we help others do the same. It is knowing that we all could use, and have used, a helping hand. Safiyyah Scoggins – PVisions1111 Creative Commons Attribution-Share Alike 4.0 White Nationalist Xenophobes have abandoned Traditional Judeo-Christian values in favor of neo-fascism.But, the rest of us should hold true to our “better angels.”
Hon. “Sir Jeffrey” Chase writes:
Hi all: Attached is our just-filed amicus brief in support of the Unaccompanied Children Program.
Once again, this was a real team effort. Major thanks to Ashley Tabaddor, for lending her expertise and powerful anecdotes on very short notice. Also thanks to Sue Roy, the eagle-eyed editing of Helen Sichel, and Denise Slavin for your contributions.
We never stand so tall as when we file an amicus brief to help unaccompanied children.
Hon. Jennie Giambastiani U.S. Immigration Judge (retired) Member, Round Table of Former Immigration Judges PHOTO: Linkedin
The Trump administration is stripping funding for legal representation from tens of thousands of children who are unaccompanied migrants in the United States, a move immigration lawyers warn violates their legal rights and will leave minors vulnerable to abuse.
“Picture yourself thrown into a detention center in a foreign country where you don’t speak the language, where you don’t understand that country’s complex legal system, only to be told that now you must fend for yourself, assert your rights and seek whatever protections that country might offer you,” Jennie Giambastiani, a retired immigration judge, said Tuesday during a call organized by the Amica Center for Immigrant Rights.
“Now picture yourself as a child in that situation,” she added.
Government-funded attorneys changed that dynamic, Giambastiani said, because they worked hard “to make sure that the children understood the proceedings and could present their claims in court.” Most unaccompanied children can’t afford to hire their own legal representation.
Without those lawyers, Giambastiani said separately, the immigration courts would be thrown into “chaos”: “The judge won’t have any sense that this child understands why [they’re] there in court.”
Thanks for speaking out for American justice, my friend and colleague! Expect more soon from our Round Table ⚔️🛡️ on this outrageous breach of due process, good government, and common sense!
Kansas City folks! It’s that time! The Annual Immigration Court Trial Advocacy College convenes in just over a month. Come play a witness and help train the next class of fearless immigration trial lawyers! Share with your networks please! 🙏🏽
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See you in Kansas City in April, along with my wonderful faculty friends and colleagues at the Annual Immigraton Court Trial Advocacy College. Never has effective advocacy been more important!
Wendy Young President, Kids In Need of Defense (“KIND”)
Reacting to this outrageous breach of the law and morality, Wendy Young, the President of Kids in Need of Defense (“KIND”) said:
“The administration’s devastating decision to strip vital legal services away from unaccompanied children runs counter to its stated desire to protect kids, some as young as toddlers, against trafficking, exploitation, and other abuses that make them easy prey for those who would do them harm. The critical legal programs eliminated today have long-standing bipartisan support from Congress, not only because they protect children from danger, but because they also improve efficiencies in the immigration system by ensuring legal counsel for unaccompanied children who otherwise must navigate a complex court proceeding alone. This includes facilitating private-sector pro bono legal services that KIND oversees with almost 900 law firms, corporations, law schools, and bar associations at no cost to the government. The value of these contributions from KIND’s pro bono partners is approximately $1 billion, a significant contribution at a time when the federal government is claiming to seek cost savings. Elimination of the services in this contract, which are mandated by law, makes it all but impossible for many unaccompanied children to appear for their immigration court hearings or otherwise remain in touch with immigration agencies. It severs key lines of communication and coordination between vulnerable unaccompanied children and the institutions in place to ensure their protection.
“While today’s development is unconscionable, Congress can act to restore these key protections. For years, bipartisan spending bills have dedicated resources to this important work. Doing so has never been more important than now. Congress has full authority on its own to remedy the crisis the administration’s actions will yield – authority it should exercise decisively. KIND calls upon the House of Representatives and Senate to work in a bipartisan fashion to mandate robust funding in the FY 2026 federal appropriations package to the Office of Refugee Resettlement for complete restoration of unaccompanied children’s legal services, including full legal representation. The safety of thousands of children depends on it.”
Many thanks to our wonderful pro bono friends at Akin Gump!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesKnightess of the Round TableLeading the charge for due process! Adina Appelbaum Director, Immigration Impact Lab Amica Center for Immigrant Rights Charter Member, NDPA PHOTO: “30 Under 30” from Forbes
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
The Trump administration has also reportedly taken aim at Biden appointees serving on the Board of Immigration Appeals (BIA)—the body charged with reviewing immigration judges’ decisions—by reducing the number of members from 28 to 15. As of January, the BIA’s backlog reached a decade-high record of more than 127,000 pending cases, an almost eightfold increase compared to 2015.
Paul Schmidt, a retired immigration judge and one-time BIA chairman, traced a parallel between the Trump administration’s “purge” and a George W. Bush-era move to “streamline” the BIA. Back then, Attorney General John Ashcroft slashed the members perceived as pro-immigrant. The Department of Justice later found itself at the center of a scandal over senior officials’ efforts to hire judges based on their political and ideological affiliations.
Similar politicization could be happening now. Prior to her unceremonious termination, Doyle had been flagged on a “DHS Bureaucrat Watchlist” by the American Accountability Foundation, a right-wing group backed by the Heritage Foundation. Last year, the organization announced an initiative called “Project Sovereignty 2025” to expose “high-ranking civil servants within DHS and DOJ who are likely to thwart an incoming conservative administration’s immigration agenda.”
The website describes Doyle, who previously served as head prosecutor with
US Immigration and Customs Enforcement’s Office of the Principal Legal Advisor (OPLA), as an “immigration activist lawyer” with a “known history as a critic of DHS” and a “lifelong commitment to open borders and mass migration.” (It cites Doyle’s involvement, while in private practice, in a lawsuitagainst the first Trump administration’s infamous ban on travelers from Muslim-majority countries as evidence of her supposed ideological bias.)
“Significant time and resources went into hiring all of us and the group had a diverse background including a number of former OPLA prosecutors,” Doyle, whose hiring process took 14 months between multiple rounds of interviews and an extensive background check, wrote in a LinkedIn post, “but what we all had in common is that we were hired—through a neutral system I will point out—during the Biden administration. This firing was political.”
Schmidt, the former BIA chairman, predicts all of this is just the start: “I think the worst is yet to come.”
Kerry Doyle ESQ Former Principal Legal Advisor, ICE, DHS Official USG Photo
Isabela Dias Staff Writer, Immigration & Social Issues Mother Jones PHOTO: Twitter
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Not only does the kakistocracy treat immigrants unfairly, cruelly, and with disrespect, they inflict the same mistreatment on some of their own employees — many dedicated civil servants with expertise and honorable service.🤮
As noted by Isabela, GOP Administrations have a history of politicized hiring at EOIR and questionable personnel maneuvers going back several decades!
By sharp contrast, AG Merrick Garland actually honored all 17 of the “pipeline” IJ appointments made by his GOP predecessor AG Bill Barr under flawed selection procedures that favored those with prosecutorial or government service, some glaringly lacking immigration expertise, while discouraging or passing over better-qualified applicants with actual experience and expertise representing asylum seekers and other immigrants in his weaponized, DHS enforcement-oriented “Immigration Courts.” I was one of the many observers who harshly criticized Garland’s ill-advised and timid accession to his GOP predecessor’s questionable selections. See, e.g., https://immigrationcourtside.com/2021/05/05/%f0%9f%a4%ae%f0%9f%91%8e%f0%9f%8f%bbshocking-betrayal-justice-garland-disses-progressive-experts-with-secret-appointments-of-17-unqualified-immigration-judges-n/
While Garland did eventually make some good appointments of well-qualified jurists, overall his record on judicial appointments at EOIR was “middling at best” — certainly not the strong, effective makeover with subject matter experts unswervingly committed to due process, fundamental fairness, and best practices so desperately needed at EOIR! As a result, ridiculously inconsistent decision-making, mundane precedents, and entrenched anti-asylum, anti-immigrant attitudes at EOIR remained at endemic levels throughout the Biden Administration!🤯🤬
When it comes to EOIR and enlightened, consistent, due-process- focused immigration policies, Dems are often their own worst enemies — a disgraceful trend that infuriatingly continues even today!🤬
Redux of the “Ashcroft Purge of the BIA” in ‘03!🤮 That touched off a crisis in the Circuit Courts who were infuriated by the resulting sloppy “rubber stamp” denials and intemperate language from some IJs. Circuit Judges Posner (CA 7) and Walker (CA 2) were particularly harsh and publicly critical of EOIR’s poor performance. Former GOP House staff member and “practical scholar” Peter Levinson published the definitive analysis of this due process farce in his article “The Facade of Quasi-Judicial Independence In Immigration Appellate Adjudications,” available here: https://immigrationcourtside.com/2024/04/02/%e2%9a%96%ef%b8%8f-bia-expands-to-28-appellate-judges-plus-bonus-coverage-lest-we-forget-the-ashcroft-purge-of-the-bia/
⚖️ BIA EXPANDS TO 28 APPELLATE JUDGES! — PLUS BONUS COVERAGE: “Lest We Forget: The Ashcroft Purge of the BIA!” Dan Kowalski reports: This document is scheduled to be published in the Federal Register on 04/02/2024 “On April 1,
Not surprisingly, following the purge, the BIA found it difficult to operate with an arbitrarily reduced number of members. To fill the gap that they had created, DOJ politicos and “EOIR Management” began designating senior BIA staff attorneys as “Temporary Board Members” (“TBMs”). Unlike the “purged members” who had gone through a competitive selection process prior to appointment, the designation of TBMs was solely within the discretion of EOIR Management subject to approval by the Deputy Attorney General.
Only “BIA staff insiders” were considered for these appointments. There was no transparent public selection process.
Significantly, the TBMs had no vote at en banc conferences nor could they vote on publication of precedents (although they could be panel members on published precedent decisions voted on by a majority of “permanent” Board Members). While their terms of service were supposed to be limited, subject to reappointment, this requirement was largely ignored by the DOJ and EOIR Management until somebody raised it as a potential issue and corrective action was taken. Obviously, TBMs who aspired to one day join the BIA on a permanent basis had every incentive not to “rock the boat” or show “undue independence” in a way that might displease EOIR Management or the DOJ politicos who were involved in such selections.
At first, this “insider process” was kept largely “below the radar screen.” But, eventually, as attorneys started noticing unfamiliar names on appellate decisions, the process was acknowledged by EOIR Management and the names and bios of the TBMs started appearing on the EOIR website. (The BIA had previously, on occasion, used field Immigration Judges, OCAHO ALJs, and rehired retired Board Members “sitting by designation,” on panels in a manner similar to the U.S. Circuit Courts of Appeals. The regulations had been changed to permit the designation of senior BIA staff as an additional option.)
Eventually, the DOJ “came clean” and began once again expanding the “permanent membership” of the BIA without ever publicly acknowledging that it had been problematic and wasteful to reduce the BIA’s membership for political reasons in the first place. That expansion eventually reached 28 Appellate Immigration Judges as described in the “Courtside” link above.
So, now begins a new round of arbitrary, politically motivated, “reductions” in the size of the BIA, even in the face of overwhelming backlogs. But, if this “politically weaponized” parody of a ”court system” continues into the future, don’t be surprised if some future DOJ politicos return to the “TBM system” or start once again increasing the number of BIA “permanent” judges.
That, of course, highlights the bigger question: How does a “court system” where politically-motivated Executive Branch employees have complete control and discretion over the hiring, firing, and “supervision” of “administrative judges” pass muster under the due process clause of the 5th Amendment? Basically, both Article III Courts and the Congress have “punted” on the glaring conflicts of interest and inherent biases presented by such a “captive” tribunal.
Here’s additional coverage from Britain Eakin on Law360, quoting me, among others:
St. Valentine’s Day Massacre Wall Creative Commons 2.0
Here’s former Judge Kerry Doyle’s account of her recent firing by EOIR, as originally posted on LinkedIn. Notably, Judge Doyle is a widely-respected immigration expert, a “total pro,” with decades of professional experience, including both ICE and the private sector. In other words, she is exactly the kind of fair, “practical scholar” judge EOIR needs to carry out its real, even if disgracefully abandoned, mission of guaranteeing due process and fundamental fairness for all!
Happy Saturday! I truly hope all of you were able to spend some time with someone you love 💕 yesterday on Valentine’s Day—two legged or four 😉. Sadly, my day was a little more complicated. I was, via email, terminated by the Acting Director of EOIR as an immigration judge yesterday, February 14, 2025.
I had not publicly posted that I had started working as an IJ in the hope of keeping my head down and just getting to work and avoiding having a bullseye on me. Unfortunately, I was unable to avoid the political pink slip.
This firing occurred despite the fact that the Immigration Court currently has in the neighborhood of 3.5 MILLION pending cases and DOJ is asking Congress for more money to hire more people at EOIR! (Hint: don’t fire the people you already have!). This firing occurred despite the fact that among my peers in my court, I had the longest and most extensive experience in immigration law and had served both as a defense counsel representing immigrants, but also as the top immigration prosecutor as PLA with ICE. I therefore had a unique perspective and experience that I could bring to my work as an immigration judge.
Sadly, DOJ cancelled our training that was to take place Feb. 10-14 (irony!) for me and the others hired late last year or early this year in my “class.” They never rescheduled it and then fired me and the rest of the new class yesterday.A number of Assistant Chief Immigration Judges were also fired. I can’t say I was surprised this happened. I was expecting it, especially when I showed up in the notorious “DHS Watchlist” late last year.
Significant time and resources went into hiring all of us and the group had a diverse background including a number of former OPLA prosecutors, but what we all had in common is that we were hired—through a neutral system I will point out—during the Biden Administration. This firing was political.
Needless to say, I’m looking for a new opportunity so let me know if you have any tips!Thanks to everyone. We will persist. What you do matters!
Her urgent message to the NDPA is truer now than ever: “What you do matters!”
Thank you for your service to our nation and to our justice system, Judge Doyle! 🇺🇸👍🏼🎖️⚖️🗽
