"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“We hold that the BIA violated due process by relying on undisclosed evidence that Zerezghi and Meskel did not have an opportunity to rebut. In making its initial determination of marriage fraud, the BIA also violated due process by applying too low a standard of proof. On remand, it must establish marriage fraud by at least a preponderance of the evidence before it can deny any subsequent immigration petition based on such a finding.”
Robert Pauw Founding Partner Gibbs, Houston & Pauw Seattle, WA
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How totally perverse has the EOIR system become?
Well, the BIA’s sole function is to insure Due Process for individualsand to apply top-flight expertise and scholarship to keep the Immigration Courts, ICE, CBP, and USCIS in line and following the law and best practices.
Instead, the BIA has become a corner-cutting, sloppy, “rubber stamp” on DHS Enforcement and USCIS “enforcement wannabes.” Remember, early on, the Trump regime made it clear that service to the public, i.e., immigrants, their families, and their communities, was no longer “part of the mission” at USCIS. Instead, the mission is to help ICE & CBP institute politically-driven White Nationalist xenophobic enforcement initiatives.
USCIS was created as a separate agency under DHS specifically to allow service to the immigrant community to flourish without the subservience to law enforcement often present and institutionalized at the “Legacy INS.” However, this regime and its toadies in DHS “Management” have seen fit to recreate the very same conflicts of interest and enforcement dominance that USCIS was created to overcome. In most ways, things are far worse than they ever were at the “Legacy INS.” And, let’s remember that USCIS is funded largely by user fees collected from the public on the now largely fictional rationale that they are getting valuable and professionalized services. What a complete mess and abuse of public funding!
Moreover, given the BIA’s lousy performance, rather than assisting the Article III Courts, it now all too often falls to the Article IIIs to keep the BIA in line and do its job for it. But, given the wide disparity in interest levels, expertise, and integrity among the Article IIIs, the results have been spotty.
Some Article III Judges step up and do the job; others sweep the chronic problems under the table and look the other way as rights are trampled and service to the public mocked. And, no Article III to date has been courageous and scholarly enough to take on the real problem: the glaring unconstitutionality under the Due Process Clause of a so-called “court” controlled, staffed, and evaluated by a highly biased prosecutor empowered to reverse individual case outcomes that don’t match his political agenda!
A glimpse of future horrors to come: Emboldened by Article III complicity, and egged on by the White Nationalist nativists, EOIR now outrageously proposes to charge astronomically higher fees for its shabby, biased, and ever deteriorating “work product.” This is a transparent attempt to further restrict access to justice for the most vulnerable among us. Another clear denial of Due Process!
Yes, Congress is responsible. Yes, Congress is largely in failure. But, that doesn’t absolve the Article IIIs of their duty to the Constitution, the rule of law, and human decency. Will they finally wake up, act with some courage, and do their jobs? Or, will they engage in further “judicial task avoidance” until it’s too late for all of us?
