"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.
This month, in case you missed it, there were several news headlines that once again proved that immigration is not just good for the U.S. economy, but freaking amazing. I’m not exaggerating – just take a look at the glorious reports revealed in February:
A Congressional Budget Office report found that, “The labor force in 2033 is larger by 5.2 million people, mostly because of higher net immigration. As a result of those changes in the labor force, we estimate that, from 2023 to 2034, GDP will be greater by about $7 trillion and revenues will be greater by about $1 trillion than they would have been otherwise.”
The most powerful economic rebound post-pandemic in the world is thanks to immigration in the U.S. The Washington Post reported, “About 50 percent of the labor market’s extraordinary recent growth came from foreign-born workers between January 2023 and January 2024, according to an Economic Policy Institute analysis of federal data.” Impressively, the surge in hires of immigrant workers filled “unprecedented gaps in the economy that threatened the country’s ability to recover from prolonged shutdowns.”
Even The New York Times piled on: “A resumption in visa processing in 2021 and 2022 jump-started employment, allowing foreign-born workers to fill some holes in the labor force that persisted across industries and locations after the pandemic shutdowns. Immigrants also address a longer-term need: replenishing the work force, a key to meeting labor demands as birthrates decline and older people retire.” The report also features a City Council president and member of the Plumbers and Steamfitters union in Indiana who says he would welcome migrants with open arms as his union is in desperate need of members.
Despite so many economists, industry and business leaders, and fellow Americans clamoring for immigrants to come to America and live and work in a small town in the middle of nowhere or somewhere, our politicians are stuck in the quicksand of deterrence, slowly sinking into policy and politics that muddle speeches and don’t make anyone want to save them.
Don’t get me wrong– I do want to save President Biden but, buddy, we need to work on those talking points. While I agree border communities and immigration officials are in dire need of resources and should be provided the proper funding and manpower, President Biden’s continual push for the Senate bipartisan bill was half futile. I get the political jab; use it, in fact, as it works against Republicans. But for the love of God stop trying to push the bill forward. It’s dead. Start planting the messaging seeds for better, more galvanizing solutions that address the border, resource welcoming communities, and deliver legal pathways. And above all center the economic and cultural contributions of Dreamers and immigrant families that Trump is eager to deport.
Humanizing the narrative is always a winning strategy. Recognizing the rewards of immigration and the hard work of immigrants, both in policies and messaging, speaks to those persuadable voters that Biden and Democrats must win over.
Where have you gone, John Fetterman? I roll my lonely eyes at you.
Now here’s someone who’s actually sinking. Yesterday, Senator John Fetterman (PA), on an apparent quest to prove he’s a tough border security hawk, said he would support H.R. 2 except for its aim to terminate DACA. He claims to have analyzed the bill, and if he did, then I am stupid for having ever thought he was a decent guy who understood the importance of immigration in America.
As a reminder, H.R. 2 is basically a Stephen Miller wet dream (I apologize for the imagery): it would (1) end legal representation for unaccompanied children and deport them faster, (2) shut down the asylum system, (3) give any DHS secretary the authority to deny every single migrant the right to seek asylum (in other words, permanent Title 42), (4) jail and detain immigrant families, (5) eliminate humanitarian parole, (6) punish and defund faith-based organizations and NGOs for supporting newly-arrived migrants, and (7) jail and penalize immigrants who overstay their visa. (Imagine if that last one were in place when Fetterman’s wife and mother-in-law had arrived in the U.S.)
Neither H.R. 2 nor the Senate bipartisan bill are “grand bargains” unless it’s a deal scored by a used car salesman hiding the 20% annual interest rate. When immigration is decidedly incredible for the economy, when immigrants are proudly working and thriving alongside their fellow American, when those seeking freedom and opportunity are willing to risk their lives for a leg up to work – work! – when businesses and communities are desperate for immigrants to fuel their future, our leaders should be grand-standing with a 21st century plan that embraces immigration and immigrants for all that they can do for America.
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Thanks for speaking truth to power, Beatriz!
While Trump and Biden trade barbs and disgracefully try to ”one up” each other as to who can be the most cruel, cowardly, and dumb on “bogus border security,” the real humanitarian and asylum processing crises go unaddressed; the most vulnerable continue to suffer at the hands of a country they want to help while saving their own lives. This is a potential “win-win” that our politicians refuse to embrace!
Texas will appeal to the too-often-lawless Fifth Circuit, so this saga is only beginning. But, at least this time the “good guys” struck first and won the opening round.
“The IJ’s conclusion that Gao failed to meet her burden of proof is based on the lack of sufficient corroborating evidence. As mentioned above, where, as here, the petitioner’s testimony is deemed credible, but the IJ finds that additional corroborating evidence is necessary to satisfy the burden of proof, the IJ is required to “(1) point to specific pieces of missing evidence and show that it was reasonably available, (2) give the [petitioner] an opportunity to explain the omission, and (3) assess any explanation given.” Wei Sun, 883 F.3d at 31; see also Pinel-Gomez, 52 F.4th at 529. Because the IJ failed to comply with these requirements here, we remand for the agency to reconsider Gao’s claim that she will be singled out for persecution if she returns to China.”
“Berhe asserted that the Eritrean military detained and beat him because he complained about conditions during his mandatory military service and because of his perceived anti-government political opinion. The agency’s adverse credibility determination is not supported by substantial evidence. … Respondent’s motion to transfer venue is DENIED, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED for further proceedings consistent with this order.”
“Based on the statutory language, structure, and context of § 1252, we conclude that a reinstated order of removal is not final for purposes of judicial review until the agency has completed withholding proceedings. Only when those proceedings conclude, if the noncitizen is eligible for that review, has the agency finalized all mandatory review and “fully determined” the noncitizen’s fate. Arostegui-Maldonado, 75 F.4th at 1140 (quoting Luna-Garcia, 777 F.3d at 1185). A contrary conclusion would contravene the express intent of Congress. Our own circuit’s precedent is consistent with this interpretation, having long treated reinstated orders of removal as final once withholding proceedings are complete. We see no reason to upset that precedent. Because F.J.A.P. filed his petition within 30 days of the completion of his CAT proceedings, we have jurisdiction to hear his petition and proceed to the merits. … Here, the Board did not just declare an absence of evidence; it actively ignored the evidence relied upon by the immigration judge. … The Board reweighed and discounted evidence in F.J.A.P.’s case instead of properly disputing that evidence with contrary facts from the record. … The Board did not explain how the immigration judge’s conclusion that F.J.A.P. would likely be tortured for having “the audacity to file a police report” is illogical, implausible, or lacks support. The Board did not explain why, in a country where gangs control much of the government—an assertion which was supported in the record by the State Department’s country report—an individual complaint about the gang made to the gang-controlled police would not put a target on someone’s back. … For these reasons, we find that the Board erred by failing to apply the required clear error standard of review. Because the Board failed to apply the correct standard of review, we need not reach whether substantial evidence supported its conclusion. In light of this error, we grant F.J.A.P.’s petition and remand to the Board of Immigration Appeals for reconsideration of the immigration judge’s decision under the correct standard of review consistent with this opinion.”
Harry S. Graver, Esquire Jones Day D.C.Chuck Roth, Esquire NIJC
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Great, if disturbing, examples of the “culture of any reason to deny” that flourishes in too many places in Garland’s EOIR and the poor leadership from the BIA! All these respondents were “garlanded,” and only saved by their outstanding lawyers and the Circuits!
Congrats to the attorneys involved in all these cases. Gerald Karikari appeared before me at the “Legacy” Arlington Immigration Court. Ben Winograd is a superstar appellate litigator. Harry S. Graver is an attorney in the DC Office of Jones Day, where I was a partner in the 1990s. Chuck Roth is a “superlitigator” for the NIJC!
The season’s outlook for justice in Manager Merrick Garland’s EOIR:
Gloomy 😪😢
In the often other-worldly, fact-free, one-sided “debate” about immigration and asylum, we must remember that severe over-denial, abuse of in absentia orders, “courts in prison,” and lack of positive precedents in Garland’s EOIR badly distort the success rate for asylum seekers that the Government often throws around. Because of Garland’s failure to legitimize EOIR asylum adjudications by cleaning house, replacing unqualified leadership, and insisting on judges with demonstrated asylum expertise and reputations for fairness, we actually have little idea how asylum seekers would fare in a fair and functional system where due process and decisional excellence were required.
Suffice it to say that significantly more asylum cases would be granted in a more timely manner. We just don’t know how many more!
Where a State court order granting a respondent’s motion to vacate a conviction does not indicate the reason for the vacatur, and there is no other basis in the record to independently establish the reason, the respondent has not satisfied his burden to show that the court vacated his conviction because of a substantive or procedural defect in his criminal proceedings.
FOR THE RESPONDENT: William M. Sharma-Crawford, Esquire, Kansas City,
Missouri
BEFORE: Board Panel: HUNSUCKER, PETTY, and CLARK, Appellate Immigration
Judges.
PETTY, Appellate Immigration Judge: [Opinion]
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SCHMIDT, Judge of the Round Table, dissenting:
I dissent.
This respondent moves to reopen and terminate proceedings. His motion is biased on a valid order of a Kansas State Judge vacating the conviction that was the basis for his removal. I would grant the motion and terminate proceedings.
Contrary to the panel’s claim, the basis for the respondent’s motion to vacate the conviction in state court is clear on this record: the respondent was ineffectively advised by counsel during his criminal proceedings where he pled guilty. Notably, the U.S. Supreme Court has found that failing to properly advise a defendant of the immigration consequences of his conviction is ineffective assistance under the sixth amendment to the Constitution. Padilla v. Kentucky, 559 U.S. 356 (2010).
According to the record, the prosecuting attorney agreed with the respondent’s assertion. On the basis of that agreement and his review of the record, the state judge granted the motion. Thus the record shows that the reason for the action was a violation of the respondent’s sixth amendment rights during his criminal proceedings. There is no evidence that the state court acted “solely for immigration purposes” as the BIA found in Matter of Pickering, 23 I&N Dec. 621, 625 (BIA 2003), rev’d on other grounds, Pickering v Gonzales, 465 F.3d 263 (6th Cir. 2006).Therefore, the panel’s reliance on Pickering is wrong.
Because there is no conviction supporting the DHS’s charge of removability, they have failed to meet their burden of proof. Consequently, these proceedings must be terminated.
Even if there were ambiguity in the state judge’s order, I would reach the same result. The INA places the burden of establishing removability on DHS by a very high “clear and convincing evidence” standard. INA section 240(c)(3)(A). Consequently, any ambiguities in the DHS’s proof must be construed against them. Therefore, even if I found some ambiguity as to the reason for the state judge’s order, the DHS would still fail to sustain their burden and proceedings should be terminated.
There is no evidence in this record that the state judge acted solely to eliminate immigration bars or for other rehabilitative purposes as was the case in Pickering. Therefore Pickering does not control. To get around this defect, the panel essentially invents a “presumption of immigration rehabilitative purposes” to fill the gap in their reasoning and save the DHS’s case. This attempt to overrule the statutory burden placed on DHS is clearly inappropriate.
For the foregoing reasons the DHS has not established the respondent’s removability by clear and convincing evidence. Therefore, I would grant the respondent’s motion to reopen and terminate proceedings. Consequently, I dissent from the panel’s unjustified denial of the motion.
Hon. Kuyomars “Q” Golparvar U.S. Immigration Judge Baltimore, MD Adjunct Professor of Law GW Law PHOTO: GW Law
Recently, I had the privilege of speaking to Judge/Professor “Q” Golparvar’s class on “Legal Drafting for Future Judicial Law Clerks” at GW Law. Here’s my list of tips that’s I discussed with that class:
NOTES FOR JLC CLASS
1) “Make me look smart” (please)
2)Know and respect the difference between Judge & JLC
3)Learn your Judge’s style and persona, likes, and “pet peeves”
4)Know and write for your audience
5) Use outlines if possible
6) Write clearly, succinctly, to the point
7) Use “active voice” — if your Judge is OK with it
8) Avoid boilerplate, legalisms, and “string citations”
9) Read the cases you cite
10) Be meticulously accurate — know where every “fact” in the fact-finding section came from and double check it
11)Be respectful to parties, counsel, witnesses, and especially court clerks and other support personnel
12) Avoid stereotypical references
13) Follow “Bluebook” or whatever modified citation system your court uses
14) Don’t be afraid to ask
15) Know and follow applicable precedent
16) Yell before your Judge walks off a cliff
17) Accept criticism with grace, goodwill, and appreciation
18) Be a student and a teacher
19) Never miss a deadline without giving advance notice and asking permission
20) Write “from the issue”
21) Incorporate helpful material and arguments from the parties that the Judge agrees with
22) Proofread, proofread, proofread, and then proofread again
23) Respect confidentiality and ethics
24) Be a good “sounding board”
25) Why I love JLCs, how they changed my court experience for the better, and why they enhance due process!
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This was a great class. It reminded me of all the great JLCs and interns who worked at the “Legacy” Arlington Immigration and my former students at Georgetown Law, many of whom have gone on to leadership positions working for social justice, including some who are now Immigration Judges.
While there has been progress in some courts, others remain far below the optimal 1:1 ratio of IJs to JLCs, some far below, as ridiculous as 8:1! Garland has failed to “harvest this low hanging fruit” in improving the quality of justice in his courts!
Congress and the Administration spend billions on cruel and ineffective immigration enforcement. Yet, they fail to invest the much more modest amounts that would improve the quality of justice for immigrants! It’s a national disgrace that somehow “flies below the radar screen” of the media and political pundits!
Thanks again to Judge/Professor Q for inviting me, for teaching the next generation, and for your career in “applied scholarship!”
“The Dems’ wrong-headed “Miller Lite” approach to immigration and the border would leave Casey scratching his head. With “major league talent” available, they have put an “amateur night at the Bijou” team on the field for what is perhaps the most important season in modern American history! PHOTO: Rudi Reit Creative Commons
As a former president of the United States excoriates immigrants for “poisoning the blood” of our country, as the governors of Texas and my current home state of Florida bus and fly migrants to points north — including my hometown, Chicago — my thoughts turn to baseball.
. . . .
While that inhospitable bunch has been villainizing migrants and refugees as a strain on U.S. resources, I have been marveling at how much foreign-born players have enlivened (and enriched) baseball in recent decades. Far from being poisoned, the sport has been rejuvenated by infusions of immigrants from Ohtani to Soto to Ronald Acuña Jr., Yordan Álvarez, Ha-Seong Kim, the Cubs’ Seiya Suzuki and so many others.
As these non-White non-Americans wow — and earn — millions with their transcendent talents, in a sport still emerging from its startlingly racist past, bigoted fictions about the “blood of our country” are being exposed. It’s true that baseball is still struggling with exploitative international recruiting practices, decreasing numbers of U.S.-born Black players and a lack of diversity among its executive ranks. Yet the increasing number of foreign-born major leaguers now counted among the best in the game’s long history dispels the self-aggrandizing myth that the United States possesses any monopoly on excellence.
The Republican presidential front-runner might argue that undocumented migrants and refugees aren’t elite athletes and are instead “animals” arriving from “s—hole countries.” But such dehumanizing insults are not only guilty of offensive fixation on national origin, ethnicity and race. They also mistake a person’s predicament for a person’s potential.
This is made plain by the origin stories of some of baseball’s biggest stars. Those same players who fashioned makeshift mitts out of milk cartons and cardboard, who rose to the game’s highest levels through arduous, harrowing and near-tragic journeys, might have languished on the other side of a barbed and militarized wall if this country’s right wing had its way.
The politicians who would build those walls, who attack immigrants for supposedly burdening our national resources, need only consider baseball’s explosive growth into a $10 billion industry and the financial value of Ohtani alone to the Dodgers — some estimate the team could make more than $1 billion off his deal over the course of a decade — to see that industries and economies thrive by inclusion, not exclusion.
Even so, ideologues seek to end inclusive practices in private industry and public education. They guarantee endless winning and new revolutions by promising to slash resources and wall off our country — all while whiffing on the most rudimentary of winning principles understood by most every baseball fan in America:
Great teams are made great by deep, diversified rosters. They are built on investment in both homegrown and international talent. And there are no curses except those that are self-inflicted by cheap, regressive thinking.
As the Republican presidential primary churns toward that party’s national convention, coincidingthis July with baseball’s annual All-Star Game, all of this will be evident to anyone ready to take a break from the campaign, take a seat in the bleachers and take in the world’s greatest ballplayers thriving at America’s game.
Jaswinder Bolina is a poet and essayist. His latest book is “English as a Second Language and Other Poems.”
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Read the full op-ed at the above link!
“Mistaking a person’s predicament for a person’s potential!” That’s exactly what Biden’s new-found attacks on asylum seekers and their advocates (his 2020 supporters!) are doing!
It’s painful to watch the errors pile up and the game slipping away from the Dems! 😣 Meanwhile, rather than being out there helping unify and re-elect Biden and Harris, advocates are marshaling their resources and considerable energy to fight tooth and nail in courts against the Administration’s apparent bone-headed intention to violate asylum law and human rights with illegal asylum bars! Energizing former core supporters to fight against your inane and immoral actions during an election year: A “strategy” that only inept, tone-deaf Dem politicos could love!
1)Hi all: Our Cornell asylum appeals clinic recently won a difficult withholding/CAT case at the BIA.On remand, the IJ granted CAT.And the client won release through habeas.
Pasted in below is a summary of the case.
Kudos go to Eva Charles and Isaac Belenkiy, the two Cornell law students who worked on the case.Even by the high standards of our clinic, they both went above and beyond for the client.And as you will see from the summary, pro bono attorneys from Morrison Foerster and the public defender’s office also worked hard to get our client CAT protection and release from detention.It takes a village to win immigration relief!
The habeas decision is at 2023 U.S. Dist. LEXIS 173280.The BIA decision is too big to attach.If anyone wants it, please email me offline.
Thanks, Steve Yale-Loehr
2023 Mexico Withholding and CAT Case Summary [IES]
Stephen Yale-Loehr, Evangeline Charles, Isaac Belenkiy
IES is a 41-year-old man from Mexico who first came to the U.S. when he was 18 years old. As a youth, IES joined a gang. He was arrested in 2005 for possessing a small quantity of drugs and was sentenced to four years in prison for “transporting drugs.” While in prison, IES defected from the gang and, following his release, was removed to Mexico in 2008. There, his tattooed physical appearance caught the attention of gangs and cartels like the Cártel de Jalisco Nueva Generación, who attacked him and his family, prompting him to relocate eight times within Mexico. Unable to find safety in Mexico, IES fled back to the United States in 2010.
In 2022, IES was detained by ICE and held at the Golden State Annex (“GSA”), a private for-profit prison, in McFarland, CA. IES applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) denied all forms of relief, finding that IES’s 2005 conviction was a “particularly serious crime” (“PSC”) that rendered him ineligible for asylum and withholding of removal.
At this point, the Cornell asylum appeals clinic took on IES’s appeal to the Board of Immigration Appeals (“BIA”). Our brief addressed two main issues: 1) IES warranted relief under withholding of removal because his 2005 conviction was not a PSC; and 2) the IJ erred in analyzing IES’s eligibility for CAT relief.
For the PSC argument, we argued that the IJ improperly analyzed IES’s offense, ignored credible evidence that the drugs were for personal use, and instead relied on boilerplate sentencing documents. As a result, the IJ failed to analyze IES’s motivation and intent at the time of the offense.
For the CAT argument, we focused on 6 errors: 1) the IJ failed to consider that IES’s prolonged mental pain would cause future torture; 2) the IJ did not consider future torture from gangs and cartels despite an expert saying this risk was at 80%; 3) the IJ failed to admit 400 pages of country conditions reports into evidence; 4) the IJ mischaracterized IES’s attempts to flee cartels 8 times as “relocation;” 5) the IJ did not think there was police acquiescence even though the police, the local Attorney General, and the judicial police ignored IES’s complaints; and 6) the IJ did not aggregate IES’s risk of torture.
On June 16, 2023, the BIA sustained our appeal in IES’s favor and remanded the case back to the IJ. Notably, the BIA agreed with our PSC argument, the IJ’s failure to consider all evidence, and the IJ’s failure to aggregate IES’s risk of torture.
After this, IES’s case was transferred to a public defender, who represented him on remand. The clinic team worked closely with the public defender’s office to transfer all files and get them up to speed on the case.
Parallel to our BIA filing, we participated in other advocacy efforts. While at GSA, IES participated in a labor strike in 2022 and a hunger strike in 2023. The aims of these protests were to draw attention to the abysmal conditions at private immigration detention facilities like GSA, to call for a minimum wage for detainee labor, and to demand safe and sanitary living conditions for detained migrants. The 2023 hunger strike was a coordinated effort by detainees and activists, supported by lawyers working for immigration justice. This protest resulted in a class action lawsuit on behalf of the detainees and the submission of release requests on behalf of individual detainees.
During the protests at GSA, our team filed a release request for IES. Our request explained that IES should be released because he was neither a flight risk nor a danger to society. ICE denied the request. IES continued to participate in the hunger strike and was mistreated by ICE personnel and medical officers. This prompted our clinic to file complaints to ICE and DHS about this mistreatment, which violated ICE’s own regulations.At the same time, we filed FOIA requests asking for IES’s detention, removal, and medical records. We decided to build a record of release requests to show administrative exhaustion so that IES can get a bond hearing. We also found a law firm (Morrison Foerster) to represent IES pro bono for a habeas corpus petition.
On September 27, 2023, the U.S. district court for the Northern District of California granted IES’s habeas petition on the grounds that “his prolonged detention without an individualized hearing violates his procedural due process rights.” A bond hearing was granted to IES. The government appealed this ruling, but their appeal was dismissed.
In fall 2023, IES was released on bond. A week later, the IJ granted him protection under CAT. IES is now back home with his wife and children. He can now get a work permit and cannot be deported to Mexico.
In the triumph of IES’s journey from detention to liberation, our team found a beacon of hope and resilience. The hunger strikes, the legal battles, and the relentless pursuit of freedom for IES were not in vain. As our clinic celebrates his freedom, we are grateful to our partners—advocacy groups in California and lawyers and public defenders who provided advice and guidance on appeal and zealously advocated for IES on remand—and to IES’s family, who never stopped providing support and information despite their own personal struggles.
The clinic’s fight for immigration justice is far from over, but IES’s triumph serves as inspiration to press onward and advocate for other clients who are plagued by inequities in our immigration system.
2) Asylum granted!
Beginning in spring 2023, a group of thirteen 1L and advanced Immigration Law & Advocacy Clinic students worked tirelessly to file individual asylum applications for a family from Afghanistan. The clients had their interviews in April, and the clinic just received the good news that the requests were approved. Congratulations to the team!
Part of the legal team is pictured here (from left): Katie Rahmlow ’23, client, client, Don Izekor, Esq. ’23, Alisa Whitfield, interpreter Hamid Rezaee (CIS ’26), Jaclyn Kelley-Widmer, client, Amy Godshall ’23.
Not pictured: Deborah Morales ’25, Oscar F. Ruiz ’25, Nathaniel Squires ’25, Rodrigo Tojo Garcia ’25, Aaliyah Channer ’25, Yubin “Lucy” Oh ’25, Arina Gorokhovska ’25, Miriam Mars ’24, Tori Staley ’23, Jared Flanery ’23.
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Congrats to the “next wave” of the relentless NDPA!
These are outstanding examples of why claims that unrepresented individuals receive constitutionally-required due process in Immigration Court are absolute poppycock! They also illustrate why responsible legislators and policy makers should be investing in representation rather than just spending wildly and fruitlessly on “gonzo” immigration enforcement.
No single nation, no matter how rich and powerful, can unilaterally change 21st century worldwide patterns of forced migration, which is what is generating the humanitarian situation at our Southern Border. But, we can more effectively address due process issues in our Immigration Courts, the “retail level” of the U.S. justice system!
This paper examines the staffing needs of the US Department of Justice’s Executive Office for Immigration Review (EOIR), as it seeks to eliminate an immigration court backlog, which approached 2.5 million pending cases at the end of fiscal year (FY) 2023. A previous study by the Center for Migration Studies of New York (CMS) attributed the backlog to systemic, long-neglected problems in the broader US immigration system. This paper provides updated estimates of the number of immigration judges (IJs) and “judge teams” (IJ teams) needed to eliminate the backlog over ten and five years based on different case receipt and completion scenarios. It also introduces a data tool that will permit policymakers, administrators and researchers to make their own estimates of IJ team hiring needs based on changing case receipt and completion data. Finally, the paper outlines the pressing need for reform of the US immigration system, including a well-resourced, robust, and independent court system, particularly in light of record “encounters” of migrants at US borders in FY 2022 and 2023.
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Wow! This is beyond amazing! Kudos and thanks to Don and Brendan for this incredibly helpful and informative analytical tool. Get the full report and access to all the charts and interactive features at the above link!
Just yesterday, my friend, Arizona “practical humanitarian” Robb Victor, was asking about how legislators and policy makers could do better planning for hiring Immigration Judges and Asylum Officers to reduce the backlog and address processing problems at the border. This is for you, Robb!
As Don and Brendan cogently point out, hiring alone can’t solve the problem! America needs positive, due-process-oriented, reforms to our legal immigration system embracing the reality and the economic power of robust orderly refugee and asylum acceptance and increases in legal immigration of all types.
The longer we ignore the need for these positive changes, and embrace the dangerous and defective myth that we can or should continue the failed program of attempting to enforce our way out of the migration realities and opportunities of the 21st century, the longer the disorder and grotesque waste of human lives and fiscal resources by our nation will continue.
Merrick Garland doesn’t worry about injustice in his courts! But, YOU should PHOTO: Wikipedia Commons
THIS WEEK IN “GARLANDING” — True Tales From The “Twilight Zone” Of American Justice!
By Paul Wickham Schmidt
Courtside Exclusive
February17, 2024
garland ( gar’ land) v.t. [garlanded, garlanding] [dv. USAG Merrick Garland via Prof. Laurence Tribe] m. inflict injustice by one in charge, often through inattention, inaction, or dithering. (Ex 1. I pray the judge won’t garland my case. Ex 2. My client was garlanded and deported to death. Ex 3. They will be garlanding asylum applicants at the U.S. border.)
By all accounts, President Biden and his White House were outraged this week when they were garlanded by the “Hur report.” Ironically, three years of complaining by some of Biden’s core supporters who helped elect him in 2020 about being systematically “garlanded” at EOIR brought not so much as a raised eyebrow from the WH. Indeed, they might now be viewed as just a preview of Biden’s “Miller Lite” dissing of his supporters and human lives at the border with his inanely enthusiastic support of an attempted human rights “fire sale” by Senate Dems! Obviously, it’s quite a different story when things come full circle and the “chickens finally come home to roost.”
You might think that’s hard to top! But, you would be wrong! Let’s get started on this week’s trip around “the land where due process and fundamental fairness fear to tread!”
The project focused on pretrial hearings that can encompass pleadings, scheduling and other technical matters. The average observed hearing ran under four minutes, a rapid-fire pace to cover all of a hearing’s required steps.
Judges advised people of their rights in only 18% of the observed hearings. Most often, this involved reading rights to everyone in a group instead of individually.
Immigration courts are required to provide interpretation in the preferred language of the individual appearing at a hearing at no cost to the individual. The court frequently failed to provide Central American Indigenous language interpretation. This impacted roughly four out of five individuals who preferred to speak in a Central American Indigenous language.
In about one in five observed hearings, the individual was not represented by an attorney.
Of course, one might wonder why it is the responsibility of the ACLU to ferret out things that Garland should have discovered and corrected himself. But, no matter. Those poor souls whose lives and future are in the hands of the Omaha Immigration Court can expect to be garlanded.
2) Shenanigans in Chicago
Dan Kowalski reports:
IJs hide the ball; find the secret list or lose your case
Friends,
Immigration court practitioners in many cities now face a new hurdle: find, and adhere to, a secret list of IJ procedural preferences (requirements, actually)…posted, in one case, in the “pro bono room” of one court. NOT online anywhere. Oh, and it changes frequently, and without warning. See the attached sample from Chicago.
Practitioners have complained to EOIR, so let’s see what happens.
I have a funny feeling that PWS may have a thing or two to say about all this.
Indeed I do, my friend, indeed I do. This one hits “close to home.”
Back in 2006 my friend and Round Table colleague Judge John Gossart of Baltimore headed a group of IJs who took on the monumental task of writing the first Immigration Court Practice Manual (“ICPM”). Based on Judge Gossart’s own “local court rules and best judicial practices” developed over decades, the ICPM built on the success of the award- winning BIA Practice Manual, created and issued during my tenure as BIA Chair.
One of the key features of the ICPM is thatIt superseded and erased all then-existing “local rules.”
Those few of us IJs who did public education events — under the watchful eye of our HQ “handlers” — were encouraged to tout and promote the ICPM as the “definitive guide” to successful practice before the courts, which, of course I dutifully did as reflected in my speeches from those days. I believe we even had “Q&A” sessions with the local immigration bar to promote and explain the ICPM.
Now, after years of gross mismanagement under Trump and Biden, things have come full circle. The oft-conflicting, idiosyncratic, and frequently inaccessible or counterintuitive “local rules” that the ICPM was created to eliminate evidently have returned with a vengeance.
Meanwhile, the very substantial amount of time, resources, credibility, and effort that went into creating, distributing, and implementing the ICPM has been a colossal waste of taxpayer resources because the last two Administrations have failed in their duty to competently and professionally administer EOIR!
And let’s not leave out Congress! If ever there were a need for a new, independent, professional, expert Article I Court System it’s EOIR. Yet, although Dems have introduced bills, the GOP has expressed no interest in Article I, nor has it been a priority for Congressional leadership and the Administration. It wasn’t even “on the radar screen” during the failed Senate “debate” on the immigration system.
Both Chicago Immigration Court practitioners and those IJs, current and past, who devoted their professional time and energy to the ICPM have been garlanded.
3) ADR On Steroids In Virginia
A long-time DMV immigration lawyer told the “Courtside I-Team” this week:
I routinely have MCHs listed as “in person” that are actually by Webex (I had one today). I also have an Individual on Thursday listed as Webex, but I received an email at 4:00 PM today stating that this was an error, and it was actually in person. I replied that I could not attend in person, as I have too many other cases and family issues to rearrange my schedule at the last minute. We’ll see what happens, but all this is typical of an agency that could care less about applicants, practitioners or due process of law. Take care.
For decades, practitioners and experts had been begging DOJ and EOIR to enter the 21st century with automation. Dishearteningly, now that automation has belatedly arrived at EOIR, it’s being used to severely diminish customer service rather than improve it!
It seems that every whim, irrationality, inefficiency, and inconvenience that developed at EOIR over years has now been “automated” to maximize the trauma and stress inflicted on those appearing before these broken courts. As this example points out, that has led to “Aimless Docket Reshuffling (“ADR”) on steroids!”
And here’s why automated ADR is such a powerful tool! Some practitioners have told me that it allows EOIR to unilaterally schedule them to be in three or four different courts at the same time, with almost no notice. Then, it’s up to the lawyer to file individual“motions to reschedule” to clean up EOIR’s mess.
Sometimes they are granted, sometimes denied without any rationale. All of this leads to more work and case shuffling but, importantly, without ever getting to the merits of any case!
Meanwhile, the backlog grows exponentially and the stress levels on the private bar and the staff ratchet up.
There might be surer ways to destroy a court system, but none come immediately to mind. This is garlanding at its best!
4) Another “F” In “Immigration Law 101” From The 3rd Circuit
“[W]e conclude that the BIA, in deciding his CAT claim, failed to consider evidence favorable to Herrow. For that reason, we will remand his petition as it applies to that claim. … Herrow claims that the BIA and IJ erred in denying his CAT claim and in finding that (1) he is unlikely to face torture and (2) the Somali government would not acquiesce in such torture. Because the BIA and IJ ignored evidence favorable to Herrow, we will grant his petition in part and remand for a more comprehensive review of the evidence. … To establish a likelihood of future torture, the record must demonstrate an aggregate risk of torture to the noncitizen that exceeds fifty percent. In making this determination, the IJ must address what is likely to happen to the petitioner if removed, and whether “what is likely to happen amount[s] to the legal definition of torture.” In answering these questions here, the BIA and IJ found that Herrow did not demonstrate a likelihood of torture. We conclude, however, that this determination could not have been made if all the evidence presented by Herrow had been properly considered.”
Being wrongfully denied CAT is no small matter, particularly if the USG is threatening to send you to Somalia. Lets get a glimpse of what happens in Somalia, courtesy of the latest report from our State Department:
Government security forces, including NISA and the Puntland Intelligence Agency (PIA), detained boys and adult men in the same facility and threatened, beat, and forced them to confess to crimes, according to Human Rights Watch. There were reports of rape and sexual abuse by government agents, primarily members of the security forces. The Human Rights Center, a local nongovernmental organization (NGO), reported two Somaliland police officers, area commissioner Hassan Ismail and Mustafe Yusuf Dheere, raped Nimo Jama Hassan on June 4 in Caynabo (see sections 1.g. and 6).
Al-Shabaab imposed harsh treatment and punishment on persons in areas under its control (see section 1.g.).
Torture and other cruel, inhuman, or degrading treatment or punishment at the hands of clan militias, some of which were government-affiliated, remained frequent. A strong and widespread culture of impunity continued, due mainly to clan protection of perpetrators and weak government capacity to hold the guilty to account.
You might think that would lead Garland and his subordinates to take extra care to get these cases right. But, you would be wrong. Dead wrong in many cases. “Good enough for government work” is the touchstone of garlanding.
By all accounts, Garland was a stellar student during his Harvard Law days. But, not so much some of his EOIR judges at the trial and appellate levels, particularly some of the “Sessions/Barr holdovers” who appear to have been appointed to the bench primarily because they were viewed as likely to deny protection without regard to law or facts. (I’ll concede that Barr and Sessions were wrong about some of their appointments who turned out, perhaps againstthe odds, to be fair judges.)
Far too many EOIR judges receive “Fs” from the Courts of Appeals on the basics of immigration and asylum law, even though most mistakes never get to the Article III Courts or manage to otherwise wend their way through the system, thereby endangering lives.
Mr. Herrow was garlanded, but survived (at least for now) thanks to the work of his lawyers and the Third Circuit.
Well, folks, that’s this week’s wrap from Gar-Land, “the land that justice forgot!” But, stay tuned to Courtside for future updates on garlanding and its victims!
What’s on the horizon: In March, a final report expected from AILA Ohio on systemic racism at EOIR! Should be a great read!
Reena Diamante reports for the Spectrum News El Paso:
. . . .
“A president doesn’t have the unilateral authority to shut down the border. If a president did, the prior president would have done it,” said Alberto Benitez, director of the Immigration Clinic at George Washington University Law School. “Even the prior president, who had a particular perspective on immigration, never shut down the border. There needs to be buy-in from Congress that a border shutdown is necessary, which there never has been.”
. . . .
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You can read the full article at the link.
Professor Benitez modestly quipped that this was: “My five seconds of fame on Spectrum News!”
You are always in the “NDPA Hall of Fame,” my friend!
Sarah Jessica Parker will NOT be appearing in the Garland/Monaco production of “Sex And The Courthouse!” Photo by Shawn Miller/Library of Congress. Public Domain.
Law360 (February 5, 2024, 6:23 PM EST) — The U.S. Department of Justice will pay $1.2 million to resolve a suit from a former staff assistant who said a California immigration judge routinely subjected her to explicit, lewd comments and once told her he would “make her straight” if they had sex.
By Grace Elletson
This article is “paywalled.” Those with Law360 access can get all the details.
But, the final settlement agreement is public and should give you a picture of what’s happening inside Garland’s often-secretive and dysfunctional “courts.”
On January 22, 2021, two days after President Joe Biden’s inauguration, then SF Chron reporter Tal Kopan ran an extensive, well-documented expose of the widespread sexual harassment problems at EOIR, the home of the U.S. Immigration Courts at the USDOJ. The story was picked up by other publications. Also, it was highlighted in that day’s edition of “Courtside,” along with a strong suggestion for immediate action addressed to incoming AG Judge Merrick Garland and AAG Vanita Gupta (a former, now very former, “civil rights maven”), both of whom had been nominated but not yet confirmed. Seehttps://immigrationcourtside.com/2021/01/22/🇺🇸⚖%EF%B8%8Fnote-to-judge-garland-and-vanita-gupta-misogyny🤮-is-running-rampant-in-the-eoir-courts-soon-to-be-your/.
Tal Kopan, Deputy Washington Bureau Chief for the Boston Globe. As a reporter for the S.F. Chron in 2021, she ripped the covers off massive sexual harassment problems at EOIR.
Lisa Monaco, Deputy AG. In apparent response to Kopan’s expose, Monaco established a committee to look into sexual harassment at EOIR and the rest of DOJ. But, not surprisingly, the recent $1.2 million settlement with a former EOIR female staff member shows that complaints languish, resolutions are opaque, and wronged individuals have to force action by suing in Federal Court! Official USG Photo, Public Realm
It now appears that Monaco’s efforts at reform have been just as lackadaisical as her implementation of Biden’s Executive order on regulations improving the treatment of gender-based claims at EOIR and elsewhere in Government, and her and her boss’s disturbingly inept approach to EOIR reform generally!
Yet, even with clear notice of the festering problems and an opportunity to address them in a way that would “change culture,” it required the institution of a Federal lawsuit by the plaintiff to obtain action and an effective remedy, almost three years after her termination.
After years of overt anti-asylum bias and misogyny from Sessions and Barr, long suffering respondents, practitioners, and many EOIR employees expected a “due process/good government renaissance” under former Federal Judge and Supreme Court nominee Merrick Garland. However, despite a few improvements, Garland has “floated above” the chaos and lack of quality control that daily vex and plague those trapped in his dysfunctional, hopelessly backlogged “courts.” PHOTO: Wikipedia Commons
It’s difficult to quantify the actual costs of EOIR mismanagement by Garland and his political lieutenants. After all, how do you put a money value on wrongful deportations, denial of constitutional rights, being subjected to substandard anti-immigrant decision making, bad precedents, “Aimless Docket Reshuffling” (“ADR”) on steroids, poorly trained judges, years stuck in limbo without the relief to which you are entitled, the effect of statistics manipulated to downplay the number of legal refugees stuck in EOIR’s hellish 3 million+ backlog, “courts” intentionally located in obscure inaccessible locations within the “New American Gulag” (“NAG”) run by DHS, and the overall “customer unfriendly” and often intentionally coercive mess to which those who practice before EOIR and those whose fate is in EOIR’s hands are subjected every working day? You can’t!
Nor is the waste of finite USG resources on chronic structural inefficiencies, boneheaded schemes to expedite dockets as “deterrents,” and ill-advised “defenses of the indefensible” in Federal Courts easy to value. But, in this case, we can quantify the cost to taxpayers of Garland’s and Monaco’s poor leadership — $1.2 million!
I wonder how many qualified accredited representatives a real problem solver and due process innovator like Professor Michele Pistone at VIISTA Villanova could train with that kind of money?
The poor leadership of Garland on immigration matters and the lousy performance of EOIR continue to be drags on the Biden Administration and our justice system. It didn’t have to be this way!
No Longer in the Cast: Former Associate AG Vanita Gupta, who left DOJ after three years of “failing to connect the dots” among civil rights, the rule of law, and the glaring violations of human rights and due process taking place at EOIR and the rest of the immigration bureaucracy. Literally, these abuses took place right under her nose, but apparently below her radar screen!
During Gupta’s tenure, the already horrible treatment of asylum seekers and other migrants of color within EOIR and the immigration bureaucracy actually deteriorated in many ways. Gupta is a sad, yet classic, example of what routinely happens to progressives once they are invited into the “halls of power” within the Government: They get co-opted into defending the status quo and the dangerous fiction of “revolution by evolution.” See, e.g., Perry Bacon, Jr., https://www.washingtonpost.com/opinions/2024/02/06/equity-diversity-inclusion-progressivism-limits/.
Just ask neo-Nazi Stephen Miller how “revolution” really works! He spent every day of his tenure in the Trump Administration single-mindedly working to dehumanize and demonize immigrants, particularly those of color and women, and to strip them of their already overly-limited rights. He paid no attention whatsoever to criticism, naysaying, and resistance from within or without. He took every “defeat” in Federal Court as an invitation to do something even worse and more outrageous.
While Gupta, despite her lofty position and civil right creds, was unable to materially improve the situation of migrants, Miller undid decades of progress on due process, racial justice, gender justice, and good government. Much of the damage he inflicted remains imbedded in the system, at DOJ, DHS, and elsewhere, as do many of those who willingly and enthusiastically assisted him.
The contrast between Gupta’s and Miller’s accomplishments and government “legacies” is a stunning illustration of the difference between Democrats and Republicans when it comes to immigrants’ rights, human rights, and racial justice — the fundamentals of governing. Democrat “political strategists” are belatedly “wondering and wandering” what to do about an “enthusiasm gap” with their core progressive voters who put Biden and Harris in office. The answer is staring them right in the face: Results matter!
NDPA “Four Star General” ⭐️⭐️⭐️⭐️ Charles Kuck reports:
My partner Danielle Claffey won yet ANOTHER Russian Asylum case the belly of the beast Atlanta Immigration Court.THIS is why lawyers are essential in asylum cases!
Danielle says:
Earlier this week, I had the great fortune of securing asylee status for a young Muslim girl from Russia, before an Atlanta immigration judge. Though she is young and was so quiet for the last year I was handling her case, in court, she was strong, confident, and provided vivid detail of what she went through for the entire 19 years of her life in Russia before fleeing for America. After the judge formally granted her asylee status, and the government waived appeal, the judge told her she was sorry for everything she went through in her home country. When the judge granted her case, and the interpreter translated the judge’s words, it was the first time I saw my client smile, followed by a big deep breath. She has carried a lot in her 21 years, but can now rest easy and pursue all of her dreams here in the U.S.
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Danielle M. Claffey, Esquire Partner Kuck Baxter LLC Atlanta, GA PHOTO: Kuck Baxter
Many congrats, Danielle, and thanks so much for sharing! With great representation, anything is possible, even in Atlanta!
THIS is actually the way Immigration Court could and should work on a regular basis from all involved! Teamwork for justice! Note that:
No appeal;
No petition for review;
No remand;
No “aimless docket reshuffling;”
No need to keep renewing work authorization;
Respondent feels welcomed and understood by U.S. justice system;
Respondent leaves courtroom on the way to a green card, eventual U.S. citizenship, and can fulfill full potential in society;
Models and rewards best practices and professional cooperation (by EOIR, ICE, and the private bar) in achieving “justice with efficiency;”
As Charles says, representation is essential; you bet; so, why hasn’t Garland worked WITH the pro bono bar, NGOs, and clinical educators to facilitate representation in every asylum case? (HINT: “Aimless Docket Reshuffling” and its derivative “Expedited Dockets” — both “Garland specialties” — are major, DOJ-created, impediments to effective representation and are particularly discouraging and problematic for pro bono representatives!
“The BIA erred in affirming the IJ. The entirety of the BIA’s analysis about the motion to reopen was that Davis “has not established that evidence of his mental health issues and of his past and feared harm if returned to Liberia are new, previously unavailable, or would likely change the result in his case.” This one sentence alludes to the elements of a motion to reopen, but does not explain how they apply to Davis’s case. Neither the IJ nor the BIA met the requirements of reasoned decision-making. … Without an adequate explanation, this Court cannot conduct a meaningful review of the BIA’s September 30, 2022 order. … This Court grants Davis’s petition for review in case no. 22-3262, denies the petition for review in case no. 23-1229, and remands for further proceedings consistent with this opinion.”
[Hats off to Colleen Mary Cowgill, Joseph N. Glynn, Elaine Janet Goldenberg, Keren Hart Zwick, Zachary Scott Buckheit, Golnaz Fakhimi, David R. Fine, Kira Michele Geary, Haarika R. Reddy, Cynthia Louise Rice and Kate Thorstad!]
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Congrats to the NDPA team from Immigration and Disability Law Scholars.
But, this is an example of how Merrick Garland’s DOJ is failing the basics of American justice! Note that:
Two levels of EOIR flunk “Judging 101” — badly;
Inappropriate “defense of the indefensible” (and easily correctable) by Garland’s DOJ (OIL) asserting semi-frivolous jurisdictional argument;
Wastes Court of Appeals time on something Garland could and should have corrected and prevented from reoccurring;
Failure to follow Circuit precedent by both EOIR and OIL;
Failure to apply established standards;
Likely use of mindless “any reason to deny boilerplate” at EOIR;
Generates needless motion to reconsider;
After four years, two IJ hearings, two administrative appeals, a motion to reopen, a motion to reconsider, a trip to the Court of Appeals, case remains unresolved;
Competent EOIR Judges could have reopened the case and ruled on the merits in less time and using fewer resources than trying to mindlessly avoid providing the respondent with a reasoned decision;
In a system with three million pending cases these types of easily avoidable, sophomoric mistakes from supposedly “expert” judges are repeated over and over again— not always caught and corrected — leading to denials of due process and fundamental fairness and promoting backlog-building “aimless docket reshuffling!”
What if the the wonderful team at “Immigraton and Disability Law Scholars” could devote 100% of their time to representing vulnerable individuals at merits hearings in Immigration Court rather than having to correct avoidable mistakes by EOIR and OIL?
After three years in charge of EOIR, why hasn’t Merrick Garland, a former Court of Appeals Judge nominated to the Supremes:
Cleaned house at EOIR;
Brought in new, expert, dynamic, due-process-focused leadership;
Institutionalized best practices (see example 1 above);
Attacked system-wide anti-immigrant culture, lack of quality control, and unprofessional decision-making that continues to plague this critical “retail level” of American justice (see example 2 above);
Fixed OIL so that it will stop undermining justice in America by raising specious arguments and defending indefensible EOIR mistakes in the Article III Courts?
Merrick Garland’s “Alfred E. Neumann Approach” at EOIR: Indolent, inappropriate, ineffective! PHOTO: Wikipedia Commons
It’s not rocket science; it doesn’t require legislation (although Garland certainly should have been publicly pushing for Article I); it just takes a laser-focused commitment to due process, fundamental fairness, best practices, and efficient delivery of justice from what continues to be America’s worst “court system!”
Why that leadership and action isn’t coming from Garland is a question that everyone who cares about the future of American🇺🇸⚖️ justice should be asking every day! Fix the fixable! Model the best! That’s “Good Governing 101!”
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
A Victory before the BIA!
Hi All: I hope you are not getting tired of all the winning. Today, the BIA issued a precedent decision on the whole Pereira and Niz-Chavez jurisdictional issue involving service of a defective NTA (link attached) in which our Round Table submitted an amicus brief drafted for us by our own Sue Roy.And the BIA actually agreed with us!!!
The holding:
The Department of Homeland Security cannot remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261 because this remedy is contrary to the plain text of 8 C.F.R. § 1003.30 and inconsistentwith the Supreme Court’s decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021).
Of course, our brief was not acknowledged in the Board’s decision.
A thousand thanks to Sue and to all in this group who have repeatedly signed on in support of due process.
As a reminder, we still await a decision from the Supreme Court on whether Pereira and Niz-Chavez extend to in absentia orders of removal. Oral arguments in that case were heard earlier this month, and our brief was mentioned in response to a question by Chief Justice Roberts.
Best, Jeff
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“Our Hero” 🦸♂️ Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration JudgesKnightess of the Round Table
Want to meet Judge Sue Roy in person and learn from her in a small group setting? You’re in luck! (HINT: She’s not only a very talented lawyer and teacher, but she’s also very entertaining and down to earth in her “Jersey Girl Persona!”)
“Don’t mess with Jersey Girls! They’ll roll right over you — in or out of court.” Creative Commons License
The Round Table 🛡️ will be well-represented by Judge Roy, Judge Lory Diana Rosenberg, and me at the upcoming Sharma-Crawford Clinic 7th Annual Immigration Court Trial Advocacy College in Kansas City, MO, April 24-26, 2024! We’ll be part of afaculty of all-star 🌟 NDPA litigators who are there to help every attendee sharpen skills and reach their full potential as a fearless litigator in Immigration Court — and beyond!
🇺🇸🗽⚖️😎 THERE’S STILL SOME INSPIRING NEWS TO REPORT: 1) CHICAGO PASTORS WELCOME BUSSES; 2) GW LAW CLINIC STUDENTS HELP NEW ARRIVALS; 3) W&M LAW CLINIC WINS 27 CASES; 4) NDPA STAR KIM WILLIAMS, ESQ, TRIUMPHS OVER GARLAND DOJ’S “NEXUS NONSENSE” IN 1ST CIR; 5) HRF’S ROBYN BARNARD CALLS OUT BIDEN’S THREAT TO TRASH ASYLUM; 6) CEO BILL PENZY LIKES & APPRECIATES IMMIGRANTS!
Locals and migrants attend a banquet at First Presbyterian Church of Chicago on Nov. 30, 2023. (Photo by Max Li)
(RNS) — Chicago was already facing a homelessness crisis before Texas’ Republican governor, Greg Abbott, began directing thousands of migrants entering his state to Democratic bastions that had declared themselves migrant-friendly sanctuary cities.
Since the transfers began in April 2022, more than 20,000 migrants, many of them destitute Venezuelans, have arrived, and many Chicagoans have expressed concerns that the city’s resources are being drained and have accused government officials of failing to communicate about the migrants’ cost and their fates.
At the same time, advocates for the migrants, especially community organizers in more vulnerable neighborhoods, have pushed back against attempts to pit two marginalized groups against each other. These groups have stepped up to support the new arrivals and in many cases have found allies in local faith leaders.
. . . .
Black said the majority of community residents want to find a way to both support the migrants and build support for a part of Chicago that has been historically underserved and underresourced. At the banquet at First Presbyterian, a speaker from Southside Together Organizing for Power, a community organizing group, talked about what it means to have Black and brown unity.
“It’s basically founded on this idea that there’s no scarcity,” Black said. “Not only is there enough for everybody — for the asylum-seekers, and the historically disenfranchised populations of South Side Chicago.”
He added, “We have so much more to gain from our unity than from the division which is being manufactured and orchestrated by interests that don’t want these communities to get the resources they need.”
Newcomer Fair at Langdon Elementary for families who have recently arrived from Texas and Arkansas via bus
I report that today Immigration Clinic student-attorneys Raisa Shah, Jennifer Juang-Korol, and I participated in the Newcomer Fair that the District of Columbia Public Schools sponsored at Langdon Elementary for families who have recently arrived from Texas and Arkansas via bus, primarily Venezuelans living in DC shelters. We shared immigration and social services information, GW swag, and met lots of cute kids. We were the only law school that participated. Please see the attached.
Professor Alberto Benítez & GW Immigration Clinic Student-Attorneys Raisa Shah & Jennifer Juang-Korol Staff The Table @ Newcomer Fair!
3) W&M Law Clinic Wins 27 Cases
Professor J. Nicole Medved reports on LinkedIn:
Over the holidays, the Immigration Clinic received approval notices in TWENTY-SEVEN applications that we’ve filed in the last calendar year. 🎉Among those 27 approvals were approvals for #asylum, #lawfulpermanentresidency, #DACA, #TPS, and #workpermits. It has been so exciting to see–and share–the fantastic news with our clients, students, and alumni who worked on these cases!
Clinic students prepare Temporary Protected Status and work permit applications. (Spring 2023)
4) NDPA Superstar Kim Williams Triumphs Over Garland DOJ’s “Nexus Nonsense” In 1st Cir
“Ricardo Jose Pineda-Maldonado (“Pineda-Maldonado”) is a native and citizen of El Salvador. He petitions for review of the decision by the Board of Immigration Appeals (“BIA”) that denied his application for asylum and claims for withholding of removal and protection under the Convention Against Torture (“CAT”). We grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this decision.”
[Please read the entire 31-page decision. It is a solid beat-down for the IJ and the BIA. Hats way off to Kim Williams and team! Listen to the oral argument here.]
Kim Williams, Esquire Rubin Pomerleau PC PHOTO: LinkedIn
5) HRF’s Robyn Barnard Calls Out Biden’s Threat To Trash Asylum
Robyn Barnard Associate Director of Refugee Advocacy Human Rights First PHOTO: Linkedin
Robyn writes on LinkedIn:
Have been thinking a lot about this statement & questioning how we got here. Anyone who works in this space knows just how complicated our laws & system are, the challenges global crises present, all compounded by recent attempts to totally destroy our immigration system. We know this is hard. However, the President has had at his service very smart ppl, experts, not to mention those in NGO space w decades of experience who have provided him reams of recommendation papers from before he was elected President, all wanting to help him to succeed at making the immigration system more efficient, more fair, but I’d guess most also came out of 4 yrs of Trump wanting to ensure we treat ppl w dignity & respect their basic human rights. If only he would listen.
How did the President go from vowing to “restore asylum” & “stop kids in cages” to essentially trying to out-Trump Trump? I wish we had a President who had the political courage to stand by immigrants, to stand in public & declare why detention, border walls, & summary deportations don’t work, & to invest in humane & smart solutions. The truly enraging thing about this is he will never win in his gross political posturing despite throwing migrants under the bus, or more aptly–literally to the cartels–the Right will never be satisfied & now he has put himself on record as in favor of Trump’s policies.
Shame. Shame on whoever had a hand in this hateful declaration and shame on the leader who put his name to it.
6) CEO Bill Penzy Likes & Appreciates Immigrants
Penzys Logo FROM: Facebook
Penzy, CEO of Penzy’s Spices in Wauwatosa, WI (my home town — graduated from Tosa East in ‘66) writes:
And despite all the Republican anger, it really is okay to say you like what immigrants do and have always done for this country. So much hard work. So much tasty food. What’s not to like? They need somewhere their hard work can amount to something, and we have plenty of space, and more work to do than we can do ourselves..
Immigrants give us the chance to be kind, decent humans. Let’s be kind, decent humans.
Thanks for caring enough to cook and caring about so much more.
Even in a time of “politicos’ bipartisan national fear-mongering, irresponsibility, and trashing of human rights,” courageous NDPA “freedom fighters” still stand up for human dignity and the right to asylum!
On Monday, the Supreme Court lifted an injunction that had prevented the Border Patrol from cutting and removing concertina razor wire that the state of Texas had installed along a migrant crossing at the Rio Grande.
Federal officials view the razor wire as exceedingly dangerous because it could trap bodies in rapid flowing waters, leading to drownings. According to officials, last week three family members—a mother and her two children—died at the river in part because Texas guard and state troopers prevented the Border Patrol from reaching them.
The conservative Fifth Circuit had ordered the injunction put in place pending its final decision, keeping the razor wire intact. But a slim majority of the Supreme Court, with Chief Justice John Roberts and Justice Amy Coney Barrett joining the three liberals, overruled the panel.
At stake is more than whether the Border Patrol can safely do its job and help prevent deaths like those that occurred last week. Our entire federal system is premised upon the principle that the federal government has exclusive authority to enforce border policy. States like Texas should not have the right to run interference or act as if they are the border patrol.
And yet, four extremist justices—Alito, Thomas, Gorsuch and Kavanaugh—would have left the federal government powerless for now to remove a dangerous barrier illegally erected by Texas.
The latest battle over the border should be viewed within the broader question of what is the proper role of the states when it comes to immigration. And this isn’t the only battle that Texas Governor Greg Abbott and extremist Texas Attorney General Ken Paxton have picked to try and claim more of that power for the states.
Today, I’ll discuss how the Supreme Court came to review this case about the cutting and removal of razor wire at the border. Then I’ll zoom out so we can see how this fits into a larger challenge to federal authority over immigration.
Subscribed
Razor wire and the Texas federal courts
When Texas first erected razor wire at the river—the kind designed to catch clothing and tear flesh—it was roundly condemned by human rights organizations, and legal scholars quickly pointed out that Texas was acting extrajudicially. After all, at the border, it is the federal government that oversees enforcement, including what kinds of barriers to erect and how to treat and handle migrants. Many of the border crossings are by asylum seekers, and they are therefore there legally in accordance with international law.
Allowing Texas to insert itself as a state actor would upend all traditional notions of federalism and the limit of states’ rights when it comes to questions of homeland security. But a federal district judge and later the Fifth Circuit didn’t see it that way. On December 19, 2023, a panel in New Orleans temporarily barred Border Patrol agents from cutting or removing the wire in the area around Eagle Pass, with an exception for “medical emergencies.” This was a shocking opinion given its apparent disregard of settled law establishing exclusive federal power over immigration policies and execution.
U.S. Solicitor General Elizabeth Prelogar argued that the injunction barred border agents from doing their jobs, specifically, from having clear access to the U.S.-Mexico border and “reaching migrants who have already entered U.S. territory.” Moreover, the exception for medical emergencies was insufficient because it takes time to cut through the wire, and while the clock is ticking there is a “very real” risk of serious injury or death for those trapped.
Texas claimed that federal border agents were not actually apprehending and processing migrants even after they passed through the gaps in the wire that had been cut by the feds some twenty times. The state had property rights of its own, Texas argued, as well as an interest in stopping “deadly fentanyl,” human trafficking,” and to “minimize the risks to people, both U.S. citizens and migrants, of drowning while making perilous journeys to and through illegal points of entry.” (The fentanyl argument is a red herring; the vast percentage of fentanyl entering the country arrives not via migrants crossing the river at the border, which would be a decidedly foolish way to try and transport drugs, but through smuggling by U.S. citizens and legal residents.)
In January, Texas upped the stakes by moving to block federal agents entirely from the area where they normally launch patrol boats and conduct mobile surveillance. This contributed to the three family members’ deaths because fedeal agents had no clear access to the river. In fact, they couldn’t even determine whether a “medical emergency” was occurring, as Prelogar pointed out.
Prelogar won her appeal for the U.S. government and got the injunction lifted by the High Court, but by only a single vote.
The State of Texas keeps trying to enforce national border policy
Governor Abbott has a multi-billion dollar program in place called “Operation Lone Star” that includes massive allocation of personnel to the border, the erecting of illegal and often dangerous barriers, and most recently a new law that authorizes state and local law enforcement to arrest migrants crossing from Mexico.
This has set up yet another showdown with the federal government. That law goes into effect in March, and it is seen as a test case to challenge a 2012 case, Arizona v. United States, that narrowly left the power to determine immigration policy to the federal government, not the states.
Texas and Louisiana already lost a case where they had challenged the Biden administration’s immigration guidelines and its deportation policies. Those guidelines had been halted nationwide by a federal judge in Texas, who ruled they violated federal law. In that case, by a 5-4 decision, the Supreme Court initially and rather alarmingly had allowed the injunction to remain in place. But ultimately it ruled 8-1 in June of 2023 against Texas and Louisiana, with only Justice Alito in dissent, reaffirming the federal government’s central role on matters of immigration policy.
Where things go from here
Governor Abbott and state Attorney General Paxton remain keen to find where the new conservative majority on SCOTUS might rule their way. So they keep pushing and testing the limits. In the razor wire case, while there’s no way to know why four extremist justices dissented from the lifting of the injunction—and it conceivably could have been because the full matter will be taken up shortly anyway by the Fifth Circuit in February—the impression it has left is unmistakable.
As CNN legal analyst and University of Texas law professor Steve Vladeck observed, “Whatever one thinks of current immigration policy, it ought not to be that controversial that states cannot prevent the federal government from enforcing federal law—lest we set the stage for Democratic-led states to similarly attempt to frustrate the enforcement of federal policies by Republican presidents.” He added, “That four justices would still have left the lower-court injunction in place will be taken, rightly or wrongly, as a sign that some of those longstanding principles of constitutional federalism might be in a degree of flux.”
In response to the loss before the Supreme Court, a spokesman for Abbott put out a statement claiming that the “absence of razor wire and other deterrence strategies encourages migrants to make unsafe and illegal crossings between ports of entry.” He added that the governor “will continue fighting to defend Texas’ property and its constitutional authority to secure the border.”
But this assertion about unsafe crossings was disputed by federal officials, underscoring the need for a single government policy. Said a White House spokesperson, “Enforcement of immigration law is a federal responsibility. Rather than helping to reduce irregular migration, the State of Texas has only made it harder for frontline personnel to do their jobs and to apply consequences under the law. We can enforce our laws and administer them safely, humanely, and in an orderly way.”
This was for now only a battle over a temporary injunction. The Fifth Circuit will next consider the full case in February, incluing whether to lift the injunction permanently. But it will do so with an understanding that five SCOTUS justices view Texas as unlikely to succeed on the merits. An appeal back up to the Supreme Court is likely, no matter which side prevails at the appellate level.
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Texas’s legal argument was frivolous. The vote at the Supremes should have been 9-0. That it wasn’t should make us all fear for our country’s future as a nation that operates under the rule of law!
Jefferson Davis Racist, traitor, insurrectionist President of Confederate Stares of America Public RealmJohn C.Calhoun White Supremacist, racist, nullifier U.S. Vice President Public Realm
Jeff Davis and John C. Calhoun would be proud of the dissenters — although, ironically, those two “nullifiers” wouldn’t even recognize one of the dissenters, Justice Thomas, as a “person” with any rights at all, let alone the ability to sit on our highest Federal Court! Remarkably, despite claiming to be a student of history, Thomas was unable to connect the dots between Calhoun’s and Davis’s rebellious, racist, dehumanization of African Americans and Greg Abbot’s rebellious, racist, dehumanization of legal asylum seekers of color!
The Federal Government’s authority to stop State Governments seeking to nullify and deny Federal authority matters! That’s particularly true when those acts of nullification are based on racial animus! That today’s righty-dominated Supremes won’t unite behind this straightforward principle of Federalism is a blow to equal protection under the Constitution!
States can’t use the federal courts to try to force the federal government to arrest and deport more people who are in the country illegally, the Supreme Court ruled Friday.
The 8-1 decision could cut down on a flood of lawsuits recent administrations have faced from state attorneys general and governors who disagree with Washington on immigration and crime policy.
The high court’s ruling found that Texas and Louisiana lacked standing to pursue litigation challenging immigration enforcement priorities established by President Joe Biden’s administration soon after he took office.
It’s the second decision in eight days in which the Supreme Court has rejected lawsuits from Texas on standing grounds. Last week, the court ruled that the state did not have standing to challenge a federal law that gives preferences to Native American families in the adoptions of Native children.
Six states are challenging the debt-relief plan, but it’s not clear if the states have suffered the sort of concrete harm that is typically necessary to challenge a policy in court. (In a separate case, two student-loan borrowers who oppose the plan are also suing. Their legal standing is also contested.)
In the immigration case, critics of the states’ approach said their claim of likely financial injury from unwarranted release of undocumented migrants was murky. But the court’s majority opinion written, by Justice Brett Kavanaugh, took a different tack and said the case was flawed because of a general principle against suits trying to force the executive branch to enforce the law against someone else.
“This Court has consistently recognized that federal courts are generally not the proper forum for resolving claims that the Executive Branch should make more arrests or bring more prosecutions,” Kavanaugh wrote, in an opinion joined by Chief Justice John Roberts and the court’s three liberals. “If the Court green-lighted this suit, we could anticipate complaints in future years about alleged Executive Branch under-enforcement of any similarly worded laws — whether they be drug laws, gun laws, obstruction of justice laws, or the like. We decline to start the Federal Judiciary down that uncharted path.”
I suppose whether you “like” or “hate” this decision depends on who is in power and what you think about them. As my friend and immigration commentator Nolan Rappaport told me, immigrants’ rights advocates might cheer this decision today, but will not be happy if Trump is elected and they can no longer team up with Democrat State AGs to challenge alleged abuses of prosecutorial authority by Trump’s Administration.
Recognizing Nolan’s point that the “sword cuts both ways,” I think this is the correct result. Perhaps, that’s because it’s a derivation of a long line of cases on prosecutorial discretion that we often successfully invoked during my time in the “Legacy INS” OGC. Also, it seems correct from a “separation of powers” standpoint.
One of the cases that the Court relied upon is Linda R. S. v. Richard D., 410 U. S. 614 (1973). Interestingly, that case, then relatively recently decided, was one of the many I cited in the July 15, 1976 opinion that I drafted for then General Counsel Sam Bernsen approving the INS’s use of prosecutorial discretion.See https://immigrationcourtside.com/wp-content/uploads/2018/02/Bernsen-Memo-service-exercise-pd.pdf.
The “Bernsen opinion” (FN 8) cited the various Lennon cases and made reference to Leon’s article in Interpreter Releases (1976) on the topic.
After five decades of working in the immigration field in different positions and different levels, I think it’s always interesting how things from my “early career” still have relevance today!
Indeed, although you wouldn’t know it from the mainstream media and the “alternate universe debate” now going on in Congress, the GOP claims of “open borders” and lack of immigration enforcement are total BS. In fact, the Biden Administration has far “out-deported” and “out-enforced” the Trump Administration. See, e.g., https://amsterdamnews.com/news/2024/01/03/deportation-numbers-under-biden-surpass-trumps-record/.
As experts and those who actually work with migrants at the border know, “enforcement only” doesn’t work at the border or anywhere else, although it does fuel political movements and powerful corporate interests. See, e.g., .https://open.substack.com/pub/theborderchronicle/p/prepare-yourselves-for-the-2024-border?r=1se78m&utm_medium=ios&utm_campaign=post. But, truth, rationality, humanity, expertise, and the rule of law are largely absent from today’s one-sided immigration discussions. That doesn’t bode well for the future of our nation or the world.
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