"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.
Inside Immigration Court: The Pros, Cons Of Remote Hearings
By Mimi Tsankov | June 2, 2023, 6:05 PM EDT ·
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In this Expert Analysis series, immigration judges discuss best practices for attorneys who appear before them and important developments in immigration court practice for cases involving asylum, detention, deportation and adjustment to lawful permanent resident status.
Hon. Mimi Tsankov President,NAIJ
Mimi Tsankov
The pandemic has reset settled expectations about how we interact in the workplace, and that transformation has hurled the nation’s immigration courts on a technological voyage into the 21st century.
Despite record congressional appropriations over the past few cycles targeted, in part, on technological advances, the court has relied historically on physical files, paper communications and traditional, in-person exchanges.[1]
Although video teleconferencing has been in limited use at the immigration court since the mid-1990s, those hearings were most often in detained settings, relying typically on judges, attorneys, interpreters and legal staff who were physically present in the courthouse.[2]
During the pandemic, with court staff hamstrung for months, struggling to process mountains of court-paper filings, and judges in some jurisdictions unable to hold hearings, EOIR rolled out about 100 specially equipped laptops with digital audio recording applications installed and connected to a commercially available video conferencing application called Cisco Webex.
These so-called DAR laptops enable the parties, the witnesses, the public and even the judge to appear at hearings virtually because the laptops can digitally record the video hearings in the same way as a judge in a courtroom.[3]
This powerful advance was made all the more effective with the introduction of the EOIR Courts and Appeals System, or ECAS, an online tool for filing and maintaining records of proceeding that is now operational throughout the entire immigration court system.[4]
. . . .
With improvements sure to be made as technological capabilities advance in the years ahead, the OIG has recommended that immigration courts “[c]ontinue the deployment of remote kits to immigration judges to ensure that immigration judges have the equipment necessary to adjudicate hearings efficiently from non-court settings.” This way, judges can more easily assist courts in areas overwhelmed by new cases, and mitigate health- and safety-related court cancelations.
Expansion of the remote judge corps program offers obvious efficiencies, especially if the court is able to speed up and optimize digitization of our backlogged files. Although there are some courts that are reducing reliance on the remote hearing program, as of February that appears to be an anomaly given the overwhelming support nationwide for the program.[14]
With the trial immigration judges poised to adapt and adopt these advances, it will be up to EOIR management to lead the way in determining how quickly and effectively these and other stakeholder-identified challenges can be addressed.
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Thanks, Mimi, for all you do for due process and American justice! The above link will take you to the full article, complete with citations and disclaimer.
Sadly, my friend, waiting for “EOIR management to lead the way,” is likely to be “Waiting for Godot.”
Immigration practitioners waiting for EOIR “Management” to show. It could be a long wait. Very long! Naseer’s Motley Group in The Rose Bowl Merlaysamuel Creative Commons Attribution-Share Alike 3.0 Waiting for Godot in Doon School.jpg Copy [[File:Waiting for Godot in Doon School.jpg|Waiting_for_Godot_in_Doon_School]] Copy December 8, 2011
Experts on the immigration court system will highlight the systemic problems in the US immigration system that have caused and sustained the backlog, and offer recommendations for reversing the backlog.
Speakers include:
Donald Kerwin, former executive director of CMS and Editor of the Journal of Migration and Human Security
Mimi Tsankov, President, National Association of Immigration Judges and member, Expert Advisory Group
Richard A. Boswell, Professor of Law, UC College of Law, San Francisco, and member, Expert Advisory Group
As well as additional members of the Expert Advisory Group:
Gregory Chen, Senior Director of Government Relations, American Immigration Lawyers Association
Anna Gallagher, Executive Director, Catholic Legal Immigration Network, Inc.
Karen T. Grisez, Pro Bono Counsel, Fried, Frank, Harris, Shriver, and Jacobsen, LLP
Hon. Dana Leigh Marks (retired), President Emerita, National Association of Immigration Judges (in her personal capacity)
Michele Pistone, Professor of Law, Villanova University
Andrew Schoenholtz, Professor from Practice, Georgetown University Law Center
Denise Noonan Slavin, retired judge, Adjunct Professor, St. Thomas University School of Law
Charles Wheeler, Senior Attorney/Director Emeritus, Catholic Legal Immigration Network, Inc.
The Center for Migration Studies (CMS) is a New York-based educational institute devoted to the study of international migration, to the promotion of understanding between immigrants and receiving communities, and to public policies that safeguard the dignity and rights of migrants, refugees, and newcomers. For more information, please visit www.cmsny.org.
To be bluntly honest, this panel of experts appears to be the group that an Administration seriously committed to restoring due process, fundamental fairness, and best practices to the “retail level” of U.S. justice would have hired in January 2021, to clean house 🧹 and institute lasting institutional reforms at America’s worst courts!
They have been “hiding in plain sight” for the past 2.5 years while Garland has been flailing and failing to bring order and long-overdue reforms to his tragically broken system!
Isn’t it time to finally get the “EOIR Clown Show” off the road before it causes more fatalities? Many experts think so! PHOTO CREDIT: Ellin Beltz, 07-04-16, Creative Commons License, https://creativecommons.org/licenses/by-sa/4.0/. Creator not responsible for above caption.
“Gerardo A. Portillo petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming his order of removal and denying his application for adjustment of status. Because we find that a conviction under Massachusetts General Laws (“MGL”) ch. 269, § 11C is not categorically a firearm offense as defined by 8 U.S.C. § 1227(a)(2)(C), we grant the petition for review, vacate the decision below, and remand for further proceedings. … Accordingly, without resorting to “legal imagination,” we conclude that MGL ch. 269, § 11C sweeps more broadly than the federal offense, and Portillo need not produce an actual case to demonstrate that overbreadth. … For the reasons stated above, we grant the petition for review, vacate the BIA’s opinion, and remand for further proceedings consistent with this decision.”
Congrats to the NDPA “litigation team” of Klein, Church, & Gillespie!
Notably, the unanimous 1st Circuit did a detailed 24-page analysis to get this one right. This is the type of scholarship and effort one might expect, but doesn’t consistently get, from the BIA.
Remarkably, this case has now been pending for more than six years at EOIR.Now, largely as a consequence of EOIR’s, toxic “how can we get to no” bias, present over the past several Administrations, it’s back to “square one” with no end in sight.
THAT’S how a system builds uncontrollable backlog! Maybe pruning out the “deadwood” and bringing in “practical scholar-experts” as judges at the appellate and trial levels wouldn’t solve all the problems that have been building up for decades at EOIR. But, it sure would be a great start on a better future!
Hon. Ilyce Shugall U.S Immigration Judge (Ret) Managing Attorney at ILD and Senior Counsel in the Immigration Program at Community Legal Services in East Palo Alto, CA Adjunct Professor, VIISTA Villanova Member, Round Table of Former Immigration Judges PHOTO: VIISTA Villanova
I started my post-law school immigration law career at ProBAR in Harlingen, Texas, as an Equal Justice Works Fellow from September 1999 to September 2001. In May, 2023, I had the privilege of returning to ProBAR as a volunteer with the ABA Commission on Immigration (COI) to engage in a week of pro bono service. I have been a Commission member for almost three years. My return, over twenty years after I left the Rio Grande Valley, provided me perspective, and caused me to reflect on the many changes as well as the constants in the South Texas border region, where I learned how to be a fierce immigration advocate. I was privileged to spend the week with welcoming ProBAR staff, COI colleagues, and the COI director, Meredith Linsky, who was my boss and mentor at ProBAR, a hero to the immigrants’ rights movement, and is someone I am proud to call a colleague and friend.
Our first day of our pro bono week began at the new ProBAR office. When I walked into the office, I felt like I was in a different world! ProBAR’s new office space is large, spacious, beautiful, and inviting. It is clear that much thought went into the design and structure of the office, considering the need for private office space, open collaborative space, large quiet spaces, conference rooms, outdoor space, and a gym and yoga room to ensure staff can decompress and energize before, during, or after long, challenging, and emotionally draining days. The office is a sharp contrast to the ProBAR office where I worked—two rooms on the second floor of an old, pest-infested house. The new office is equipped with state-of-the-art technology, another contrast from my experience, where we used dial up internet and unplugged the fax machine before we could access the internet. We learned that ProBAR now has a staff of 270 people. In 1999 when I started, we were a staff of three—the ProBAR director, the volunteer paralegal, and me. I am thrilled to see the investment in the staff through hiring and creating a livable workspace. Comfortable, functional, supportive workspace is crucial to the sustainability of the demanding work.
Our schedule for the week included meeting with partner organizations in Brownsville and Matamoros, meeting with individuals detained at the Port Isabel Detention Center (PIDC), touring children’s shelters, and visiting La Posada Providencia, a welcoming shelter for many immigrants and refugees. I was impressed by the resiliency and responsiveness of organizations in the region. The increase in resources for noncitizens in the Rio Grande Valley was striking and is unquestionably due to necessity. The humanitarian crisis at the border is unlike anything I saw between 1999 and 2001 and the need has increased exponentially. I was impressed by the partnerships established by the ProBAR team. The increased staffing has allowed ProBAR to form and maintain crucial partnerships throughout the Rio Grande Valley. During my time at ProBAR, we relied on trusted partnerships; however, due to our limited staffing, we were unable to engage in outreach or foster relationships with many organizations. The current partnerships with shelters and other social services organizations are crucial to ProBAR’s ability to meet the needs to the community they serve.
ProBAR’s presence in Brownsville is remarkable. We utilized ProBAR’s small office close to the border. This space was crucial when the Migrant Protection Protocols (MPP) program was still in place, as ProBAR staff served clients facing removal proceedings in the tent courts. The office space on the border continues to provide essential access to clients and the social services agencies that serve them. It allows the ProBAR staff to do outreach, education, and intake at the non-legal organizations that serve mutual clients. For example, while in Brownsville, we provided legal consultations to numerous individuals staying at a Brownsville shelter. We also visited one of the unaccompanied children’s shelters in Brownsville, where ProBAR staff provide services.
During our pro bono week, we had the opportunity to travel to PIDC twice to provide consultations to recently arrived asylum seekers. It was bittersweet to return to the detention center I frequented from 1999 to 2001, when I traveled daily to what was then called Port Isabel Service Processing Center (PISPC) – PIDC is a more appropriate name. PIDC has not changed much. The entrance, lobby, attorney visitation area, and court space have been remodeled. I recall a dingy dirty lobby with a pay phone I used regularly to call the ProBAR office after long afternoons of presentations and consultations. The lobby is now clean, spacious, and the pay phone is gone. However, the interior of the detention center remains the same- a jail with razor wire, barbed wire, and no freedom of movement. Also similar was ProBAR’s access to the facility due to the reputation the agency has built over the years. When I went to PISPC daily, I felt respected by guards and government officials. I learned the importance of building those relationships to ensure access to those who needed the services. ProBAR’s reputation endures, and the relationships remain strong. ProBAR’s continued ability to provide Know Your Rights presentations and consultations in the facility is crucial to serving the needs of thousands of individuals every year.
In the two days I conducted consultations with noncitizens at PIDC, I met men from Venezuela, Honduras, and Guatemala. The nationalities of individuals detained have shifted over the years, but the reasons they have fled their homes remains constant. They are fleeing political violence and oppression, gang violence, cartel violence, and government instability. The men detained at PIDC endured exceptional hardship, danger, and suffering to arrive at the United States border to seek refuge. While United States detention policies and conditions were cruel when I worked at ProBAR, they are exponentially worse today. Currently, noncitizens are forced to stay in unsanitary and unsafe refugee camps in Matamoros often for months while trying to request protection in the United States. They face disease, kidnapping, rape, and torture in Matamoros while the United States and Mexican governments turn a blind eye and collaborate to keep them from crossing the bridge into Brownsville. When those lucky enough to find a way into the United States arrive, many are forced to remain detained in Customs and Border Protection custody for weeks, sleeping on the floor with limited to no access to showers and in freezing rooms or cells. They then must navigate the new confusing and complex asylum rule without counsel. While we were unable to provide representation, the men we met with were grateful for our explanation of the legal process, as well as the pro bono legal consultations we provided.
As part of our trip, we also had the opportunity to go to Matamoros and meet with partners at the Sidewalk School. The plan to walk over the bridge, meet with Sidewalk School staff, and tour one of the refugee shelters took much time and coordination on the part of ProBAR and ABA staff. Unlike when I lived and worked in Harlingen, when going to Matamoros was often a spur of the moment decision to have dinner or go shopping, today, numerous considerations must be assessed. Matamoros was a safe city when I crossed regularly. However, today, due to the United States’ and Mexico’s war on drugs, Matamoros is often dangerous, particularly for refugees hoping to reach the United States. I appreciate the care, planning, and coordination that went into our day in Matamoros. Witnessing the situation at the base of the bridge as well as the refugee camp was crucial to gaining a true understanding of the consequences of United States immigration law and policy changes over the last several years. Photos of the bridge and the camp provide a glimpse into the reality that refugees are living. However, the photos did not prepare me for what I saw and experienced. Walking into and around the shelter full of makeshift tents, no sanitation, no services, in 90+ degree temperatures with soaring humidity was horrifying. People approached us for information and help, desperate to access medical care and safety. I fought back tears the entire time we were in the camp. No one should live in these conditions, and no one who lives in the camps is there by choice. Refugees tolerate the dangerous, unsanitary conditions that are making them sick because they were forced to leave their homes. Their flight was not voluntary. Seeing the camp provided me even greater perspective on the situations they fled. I left feeling sad, horrified, and angry at the United States government policies that created the humanitarian crisis in Matamoros. It is avoidable. It can be changed for the better. Instead, the United States government recently finalized a rule to make it harder for those seeking protection to access the United States asylum system. This rule will exacerbate the problems in Matamoros and has caused and will continue to cause greater human suffering on both sides of the border.
I am thankful for my week with ProBAR. I appreciated starting my days as I started many days when I lived in Harlingen decades ago, running on the path along the Arroyo Colorado in the heat and humidity, among the beautiful lush green plants, chirping birds, and adorable bunnies. I found peace and energy running on the path, which carried me through the days of the harsh realities of human suffering and unfair laws and policies. My time at ProBAR reminded me why I continue to work as an immigration attorney, why I work at another amazing nonprofit, Immigrant Legal Defense, to provide free legal services to underserved communities, including noncitizens in ICE detention.
Author
Ilyce Shugall
Managing Attorney at Immigrant Legal Defense
Ilyce is currently a Managing Attorney at ILD and Senior Counsel in the Immigration Program at Community Legal Services in East Palo Alto (CLSEPA). She was an adjunct professor in the Villanova Interdisciplinary Immigration Studies Training for Advocates from January 2021 to December 2021. She was previously the Director of the Immigrant Legal Defense Program at the Justice and Diversity Center of the Bar Association of San Francisco. Prior to joining JDC, Ilyce served for 18 months as an immigration judge in the San Francisco Immigration Court. Prior to serving as an immigration judge, Ilyce was the Directing Attorney of the Immigration Program at CLSEPA from 2012-2017. Under Ilyce’s leadership, CLSEPA’s immigration staff grew from four to twenty. Ilyce also served temporarily as the first legal director for the San Francisco Immigrant Legal Defense Collaborative at the Bar Association of San Francisco in 2015. For 10 years, Ilyce was an attorney at Van Der Hout, LLP. Three of those years she spent as a partner. Before joining the private sector, she worked at the South Texas Pro Bono Asylum Representation Project (ProBAR) as a National Association of Public Interest Law/Equal Justice Fellow. Ilyce received the 2016 National Pro Bono Services Award from the American Immigration Lawyers Association; and was a 2015 Silicon Valley Business Journal’s “Women of Influence” awardee. Ilyce is a commissioner on the American Bar Association’s Commission on Immigration and previously served as a commissioner on the State Bar of California Commission on Immigration and Nationality Law. She was NIPNLG’s update editor for Immigration Law and the Family from 2012-2017, and has published numerous articles on immigration law. Ilyce is an active member of the Round Table of Former Immigration Judges. Ilyce holds a JD from DePaul University College of Law, and a BA from the University of Wisconsin, Madison.
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Talk about a professional career spent on the “front lines” of fighting for due process and humanity! Thanks for all you do and for being such an inspiring role model, my friend (and fellow Badger). It’s an honor to be your colleague on the Round Table and the VIISTA Villanova Program!
I was detailed to the Port Isabel Detention Center shortly before my retirement. I remember it pretty much as Ilyce describes it today.
The facility and court personnel were nice and helpful. But, there was an aura of grimness, despair, and wastefulness hanging over everything that just couldn’t be dispelled. Leaving the facility every night have me a sense of relief.
I think that all so-called policy makers in the Biden Administration should be required to experience a week in one of their immigration prisons as a prerequisite for obtaining or retaining their jobs. Sadly, and inexcusably, we now have folks making life or death decisions about immigration and human rights policy and the future of our nation who know less and have less perspective than Ilyce and others had after completing their one-year EJW Fellowships! The lack of expertise, compassion, creativity, and common sense in the Biden Administration’s immigration hierarchy/bureaucracy shows!
To quote Ilyce, about the largely self-created “humanitarian crisis” at the border: “It is avoidable. It can be changed for the better.” My question is why isn’t a Democratic Administration that many voted for to solve problems and make things better at the border getting the job done?
Emily Garcia Litigation Reporter Bloomberg Law PHOTO: talkingbiznews.comThis phase of the Inquisition is over. But, torture is still widely practiced worldwide. US Officialdom has shown little enthusiasm for carrying out its mandatory protection responsibilities under the Convention Against Torture (“CAT”). PHOTO: Public Realm
The Supreme Court recently removed one procedural hurdle for noncitizens seeking humanitarian relief but the high court’s ruling clears up no substantial issues about a law they’ll make their claims under, immigration attorneys say—allowing some relief seekers to be sent back to torturous conditions.
Estrella Santos-Zacaria, a Guatemalan transgender woman, asked for federal review of the Board of Immigration Appeals’s decision denying her protection under the Convention Against Torture. In a unanimous decision, the justices said federal judges can weigh in on BIA’s decisions before discretionary administrative remedies are exhausted. In Santos-Zacaria’s case, her petition may be sent back to BIA for further review but that doesn’t guarantee relief.
While lawyers are hopeful that earlier review by a federal court will facilitate a smoother process for their clients, they express concerns that immigration judges and the BIA too readily dismiss the risk of torture, and say it shouldn’t be so difficult to get humanitarian relief.
CAT protections, including deferral and withholding of removal, allow noncitizens who aren’t eligible for asylum to remain in the US. To receive protection, a noncitizen must show an immigration judge that if they are deported, it’s more likely than not that they will be tortured with government acquiescence or participation. Unlike asylum, protections under the Convention are mandatory and serious criminal convictions can’t disqualify a noncitizen. But protections are especially difficult to win, said Eleni Bakst, a lawyer at the Capital Area Immigrants’ Rights Coalition.
. . . .
Paul Schmidt, a former immigration judge and chairman of the BIA between and 2001, said the process for evaluating claims under the Convention isn’t scientific. There’s no formula to plug in that will tell the odds of someone being tortured. “It’s sort of in the mind of the beholder,” Schmidt said.
. . . .
As an immigration judge, Schmidt said he and other immigration judges relied heavily on country conditions reports published by the US Department of State. Asked if he believed the reports were an adequate representation of a country, Schmidt said “certainly not.”
Bakst said statistics provided by other countries can also be inaccurate. In El Salvador, the government doesn’t allow monitoring bodies into its prisons so data on inmate torture is incomplete.
Pushing back against questionable reports and statistics, immigration advocates are aware that immigration judges and the BIA may dismiss their client’s risk of torture, and their client may be tortured anyway.
Such was the case for Patrick Julney, a client of CAIR Coalition who was denied deferral under the Convention for failure to show that the likelihood of torture was more than 50% and deported to Haiti. Bakst said that “immediately upon his arrival in Haiti, he was imprisoned and tortured.” Julney was denied access to food, water, and medicine.
Estelle McKee, a clinical immigration law professor at Cornell Law School, represented a schizophrenic man from El Salvador who was denied CAT relief. After his deportation, McKee hired a Salvadorean attorney to track down her client.
She said the attorney couldn’t even enter her client’s village because it was gang-controlled.
“I don’t have much hope that he survived,” McKee said.
McKee and other immigration attorneys agree that the Supreme Court’s decision will speed up the humanitarian claims process, though results may vary. Julney’s case was reviewed by the Third Circuit, but his outcome was unchanged.
. . . .
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Reads Emily’s full, well-written article at the above link.
A Government colleague once remarked to me that “the U.S. should never have signed the CAT.” Obviously, that private view has permeated and driven USG policy on implementing the CAT, particularly at the DOJ where it was immediately treated as “PNG” because of its lack of exclusionary clauses. Even “bad guys” aren’t supposed to be returned to torture (in terms of legal theory, if not reality).
There is no objective evidence that torture is on the decline worldwide. See, e.g., https://www.amnesty.org/en/what-we-do/torture/. Yet the mandatory protection required by the CAT remains elusive and quite arbitrary within the U.S. legal system.
One of the best examples of how Government officials who should be insuring that the legal protections under CAT are fairly and reasonably applied to achieve the Convention’s purposes are instead promoting an “any reason to deny” culture is former AG John Ashcroft’s precedent decision in Matter of J-F-F-, 23 I&N Dec. 912 (A.G. 2006). There, Ashcroft reversed a CAT grant by the IJ and the BIA to an unrepresented respondent. In the process, Ashcroft established the “enhanced test” that to gain CAT protection, the respondent must “establish that each step in the hypothetical chain of events is more likely than not to happen.”
In other words, this is an official invitation, some might say directive, to IJs to “lengthen the chain of causation until it breaks” (which it inevitably will, in most cases) and protection can be denied.
Moreover, many CAT claims, like this one, involve unrepresented respondents. The chances of an unrepresented respondent understanding the “chain of causation” or what it means to prove “each step is more likely than not to occur” are very slim.
Additionally, even if they did understand, since many of the unrepresented respondents are in detention, they would have little or no realistic chance of obtaining the type of detailed, timely expert testimony and comprehensive documentation, far beyond the DOS Country Reports (which, by the way are only available in English), necessary to overcome Ashcroft’s “de facto presumption of denial” and prove that every step of the “hypothetical chain” is “more likely than not” to happen.
Effectively, every problem mentioned by Emily and expert practitioners in this article is essentially (intentionally) magnified by J-F-F- and other anti-CAT administrative precedents.
CAT relief is mandatory, thus suggesting a high obligation on the part of IJs and other Government officials to insure non-return to torture. Yet, Ashcroft chastises the IJ involved in J-F-F- for essentially insuring that the respondent exercised his legal right to apply for CAT and helping him develop the record. Ashcroft even took the extraordinary step of disqualifying this IJ from any “hypothetical” future proceedings involving this respondent.
At the beginning of the BIA’s quest to interpret CAT (ironically at the same time Bush Administration lawyers at DOJ were secretly searching for legal pretexts to justify torture), I dissented from an unduly restrictive BIA precedent Matter of J-E-, 23 I&N Dec. 291, 304 (BIA 2002), Paul Wickham Schmidt, Board Member, dissenting, joined by Board Members John W. Guendelsberger, Noel Ann Brennan, Cecelia M. Espenoza, and Juan P. Osuna.
There, I stated:
The majority concludes that the extreme mistreatment likely to befall this respondent in Haiti is not “torture,” but merely “cruel, inhuman or degrading treatment.” The majority further concludes that conduct defined as “torture” occurs in the Haitian detention system, but is not “likely” for this respondent. In short, the majority goes to great lengths to avoid applying the Convention Against Torture to this respondent.
We are in the early stages of the very difficult and thankless task of construing the Convention. Only time will tell whether the majority’s narrow reading of the torture definition and its highly technical approach to the standard of proof will be the long-term benchmarks for our country’s implementation of this international treaty.
Although I am certainly bound to follow and apply the majority’s constructions in all future cases, I do not believe that the majority adequately carries out the language or the purposes of the Convention and the implementing regulations. Therefore, I fear that we are failing to comply with our international obligations.
I conclude that the respondent is more likely than not to face officially sanctioned torture if returned to Haiti. Therefore, I would grant his application for deferral of removal under the Convention Against Torture and the implementing regulations. Consequently, I respectfully dissent.
More than two decades after J-E-, my fears and predictions of officially-sanctioned non-compliance with CAT unfortunately continue to be proved correct.
I also note with pride that our Round Table of Former Immigration Judges ⚔️🛡 filed an amicus brief before the Supremes in Santos-Zacaria supporting the interpretation that eventually prevailed.
PROSECUTORIAL HISTORY: In 897, at the “Cadaver Synod,” Pope Stephen VI appointed himself to prosecute the corpse of his dead predecessor, Pope Formosus. (Spoiler alert: He got a conviction.) In 2023, DHS has decreed that prosecuting cases in person before EOIR is no longer worth their valuable time. PAINTING: Jean-Paul Laurens (1870) —Public Realm
Provided by a veteran immigration practitioner:
DHS No Appear 1DHS No Appear 2
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Notably, the four categories of “mandatory appearance” described by the Deputy Chief Counsel apply to only an infinitesimally small percentage of the roughly 2 million cases currently pending before the Immigration Courts.
Compare this with the treatment of the private bar who experience:
* Aimless reshuffling and rescheduling of their already-prepared cases, often without notice or with inadequate notice of the new hearing date;
* Arbitrary and capricious denials by some Immigration Judges of reasonable motions to continue;
* Possible disciplinary referrals for failure to appear at a scheduled hearing when listed as counsel of record.
Would the DOJ submit a similar missive to U.S. District Court Judges unilaterally announcing that they would only “selectively appear” in criminal and civil cases where the U.S. Government is a party? I doubt it!
So, what’s an Immigration Judge who does not want to perform DHS’s job for them to do? Contempt of court, you say? After all, the IJ’s authority to hold any party or counsel in Immigration Court proceeding in contempt is right there in plain language in the INA. See, INA section 240(b)(1).
Ah, but there is a catch! A big one! Although the contempt provision was added by Congress more than a quarter of century ago, AGs of both parties have steadfastly refused to promulgate the necessary implementing regulations.
Evidently, the theory is that while IJs might be qualified to issue potential death sentences to migrants in Immigration Court, they can’t be trusted to fairly and reasonably use their contempt authority on lawyers who, after all, are mostly U.S. citizens and whose livelihood might be adversely affected. Essentially, the life of a migrant is worth less than a monetary fine for contempt to a U.S. lawyer.
Additionally, there apparently was a special concern about giving IJ’s authority to regulate the conduct of their “fellow Government attorneys” at INS, and later DHS. After all, that would be interfering with another Government agency’s “sacrosanct” authority to regulate and discipline (or not) its own employees.
In many ways, under Garland, the Immigration Courts are losing what limited public respect the might still have possessed and accelerating the move backwards to an “inquisitorial model” to replace the “adversary model” for decison-making. Ironically, this reverses over a half century of efforts by Congress, reformers, and sometimes the Executive itself to make Immigration Courts function as part of the adversary system — in other words, like “real” courts of law.
As one informed expert commenter stated upon learning of this latest development:
As we have all been saying, (1) EOIR doesn’t view itself as part of an ecosystem which also includes ICE, the private bar, non-profits, law school clinics, interpreters, USCIS, etc.; and (2) EOIR is run at it’s upper level by mindless, gutless people suffering from a complete lack of imagination existing in a bubble.
As a practical matter, I assume ICE is strategically choosing not to appear in hearings before IJs who deny everything? If not, it could actually work in your favor. In truth, the UNHCR model doesn’t envision asylum being heard in adversarial hearings; as Paul has articulately stated, it sees asylum as a collaborative effort between adjudicator and asylum seeker.
For a “practical application” of the “collaborative effort” model promoted by the UNHCR, see Matter of S-M-J-, 21 I&N Dec. 722 (BIAS 1997).
Donald M. Kerwin, Senior Research Associate, University of Notre Dame
In forwarding this article, Don says: “The report makes the case that the backlog has nothing to do with the immigration courts and everything to do with systemic, unresolved problems in the broader US immigration system.”
The US immigration court system seeks to “fairly, expeditiously, and uniformly administer and interpret US immigration laws” (DOJ 2022a). It represents the first exposure of many immigrants to due process and the rule of law in the United States, and occupies an integral role in the larger US immigration system. Yet it labors under a massive backlog of pending cases that undermines its core goals and objectives. The backlog reached 1.87 million cases in the first quarter of FY 2023 (Straut-Eppsteiner 2023, 6). This paper attributes the backlog to systemic failures in the broader immigration system that negatively affect the immigration courts, such as:
•
Visa backlogs, United States Citizen and Immigration Services (USCIS) application processing delays, and other bottlenecks in legal immigration processes.
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The immense disparity in funding between the court system and the Department of Homeland Security (DHS) agencies that feed cases into the courts.
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The failure of Congress to pass broad immigration reform legislation that could ease pressure on the enforcement and court systems.
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The lack of standard judicial authorities vested in Immigration Judges (IJs), limiting their ability to close cases; pressure parties to “settle” cases; and manage their dockets.
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The absence of a statute of limitations for civil immigration offenses.
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Past DHS failures to establish and adhere to enforcement priorities and to exercise prosecutorial discretion (PD) throughout the removal adjudication process, including in initial decisions to prosecute.
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The location of the Executive Office for Immigration Review (EOIR), which oversees US immigration courts, within the nation’s preeminent law enforcement agency, the Department of Justice (DOJ).
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The misconception of many policymakers that the court system should primarily serve as an adjunct to DHS.
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A past record of temporary judge reassignments and government shutdowns.
The paper supports a well-resourced and independent immigration court system devoted to producing the right decisions under the law. Following a short introduction, a long section on “Causes and Solutions to the Backlog” examines the multi-faceted causes of the backlog, and offers an integrated, wide-ranging set of recommendations to reverse and ultimately eliminate the backlog. The “Conclusion” summarizes the paper’s topline findings and policy proposals.
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This is a “treasure trove” of information about systemic failure of our Immigration Courts, for which I am deeply grateful to Don & Evin.
So, is EOIR a symptom or a cause of immigration dysfunction, or a mixture of both?
I’m inclined to believe that notwithstanding the evidence described in the article that EOIR is largely a “victim” of deeper problems in our immigration system, there is a strong case to be made that more principled Attorneys General, more courageous and talented EOIR personnel, and a Democratic Party with democratic values and a spine could have thrust EOIR into a due process and legal expertise leadership role, thereby making the current immigration system operate more fairly, efficiently, and in the public interest.
It’s a shame that we’ll never know the truth. That just leaves commentators and scholars to analyze the carnage and to speculate on “what might have been” or “what could be” in a different political atmosphere.
This is perhaps interesting, even significant, from an historical standpoint. But, the practical effect remains to be seen.
If I could have just one immigration “reform, it would be an Article I EOIR! Without due process, all other reforms and improvements are doomed to failure!
“Dagoberto Luna petitions for review of the Board of Immigration Appeals’ dismissal of his appeal of an immigration judge’s denial of his motion to rescind an in absentia removal order. Luna contends he received a defective Notice to Appear that renders the in absentia removal order invalid. We agree. We GRANT Luna’s petition, VACATE, and REMAND for further proceedings.”
[Hats off yet again to superlitigator Raed Gonzalez!]
When will they learn, when will they ever learn? The ultra-conservative 5th Circuit pays attention when Raed litigates in behalf of individuals seeking due process and fundamental fairness at EOIR. Why doesn’t Garland?
The BIA’s approach to statutory interpretation under Chevron tends to be one-sided in favor of DHS Enforcement. IMAGE: Wikimedia Commons
BIA HEADNOTE:
(1) A conviction for burglary of a building under section 140.25(1)(d) of the New York Penal Law is not categorically an aggravated felony burglary offense under section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2018), because the statute is overbroad and indivisible with respect to the definition of “building” under New York law.
(2) A conviction for displaying what appears to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm while committing burglary under section 140.25(1)(d) of the New York Penal Law necessarily involves the use, attempted use, or threatened use of physical force against the person or property of another and therefore constitutes an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F).
FOR THE RESPONDENT: Yuriy Pereyaslavskiy, Esquire, Albany, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Donald W. Cassidy, Associate Legal Advisor
BEFORE: Board Panel: GOODWIN and WILSON, Appellate Immigration Judges. Concurring and Dissenting Opinion: BROWN, Temporary Appellate Immigration Judge.
CONCURRING AND DISSENTING OPINION: Denise G. Brown, Temporary Appellate Immigration Judge
I respectfully dissent from that portion of the majority opinion that holds that second degree burglary under section 140.25(1)(d) of the New York Penal Law is categorically an aggravated felony crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(F) (2018). As an initial matter, I have reservations that this case is an appropriate means through which to establish binding precedent on this issue as the Immigration Judge did not reach it. While the parties have had an opportunity to address the issue through supplemental briefing, we lack the benefit of the Immigration Judge’s reasoning. It is our role to “review” questions of law de novo, 8 C.F.R. § 1003.1(d)(3)(ii) (2023), but there is no underlying decision regarding whether the respondent was convicted of an aggravated felony crime of violence for us to review here.
Further, I disagree with the majority’s analysis by which it concludes that a violation of section 140.25(1)(d) of the New York Penal Law is categorically a crime of violence. Section 140.25(1)(d) provides that a person is guilty of burglary in the second degree:
when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when
. . . [i]n effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime
…
. . . [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .
N.Y. Penal Law § 140.25(1)(d) (McKinney 2017). A crime of violence under section 101(a)(43)(F) of the INA, 8 U.S.C. § 1101(a)(43)(F), is “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a) (2018).
I disagree with the majority that second degree burglary under section 140.25(1)(d) includes as an element the use, attempted use, or threatened use of physical force against another person. In my view, second degree burglary under section 140.25(1)(d) does not include any element that requires the presence of a person other than the defendant. In the absence of an element that requires the presence of a person, the majority’s conclusion that this offense is a crime of violence is unavailing. See Borden v. United States, 141 S. Ct. 1817, 1825 (2021) (“The phrase ‘against another,’ when modifying the ‘use of force,’ demands that the perpetrator direct his action at, or target, another individual.”).
The majority’s analysis heavily relies on case law involving robbery to support its conclusion that second degree burglary under this subsection is a crime of violence. But under New York law, robbery always involves forcible stealing from a person and burglary does not. In United States v. Ojeda, 951 F.3d 66, 71 (2d Cir. 2020), the Court of Appeals for the Second Circuit rejected the defendant’s argument that it was possible to commit New York first degree robbery with the aggravating factor of the display of an
apparent weapon without the use, attempted use, or threatened use of physical force. The court held that the defendant’s argument ignored the foundational element being aggravated, i.e., forcible stealing, which is defined in New York to include the use or threatened immediate use of physical force upon another person. Id. at 72. Forcible stealing is an element for every degree of robbery in New York and “that element categorically requires the use of physical force.” Id. Thus, New York robbery always includes as an element the use or threatened use of physical force against another person, regardless of whether an apparent weapon is displayed. Accordingly, the New York robbery statutes are distinguishable from the burglary statute at issue here, and thus the case law relied upon by the majority relating to robbery is not persuasive in this context. For the same reason, the case law cited by the majority relating to assault is likewise unpersuasive.
The majority also relies on the definition of “display” in the New York model jury instructions to conclude that a display of an apparent weapon must be in front of a person. The majority concludes that “display” in the context of section 140.25(1)(d) necessarily means a conscious display of an apparent weapon to a victim. “Display” as described by the model jury instructions does not constitute the use, attempted use, or threatened use of physical force against another person because, as the Supreme Court explained in Borden, “against the person of another” means “in opposition to” and expresses “a kind of directedness or targeting” rather than being akin to “waves crashing against the shore.” Borden, 141 S. Ct. at 1825–26. However, the language of the model jury instructions—i.e., describing display to be “manifest[ing] the presence of an object that can reasonably be perceived” as a weapon—does not require the type of directedness or targeting described in Borden. N.Y. Crim. Jury Instr. & Model Colloquies, Penal Law § 140.25(1)(d) (May 2018). The language instead appears to contemplate that a person be “the mere recipient” of the display. Borden, 141 S. Ct. at 1826.
Even if the majority’s conclusion were correct that display of an apparent weapon necessarily contemplates the presence of a person to perceive it and that it necessarily involved conduct directed at another person as contemplated by Borden—a conclusion not supported by the actual language of section 140.25(1)(d)—there is nothing in the statute that requires the person perceiving the display to be the victim of the crime, rather than a bystander or another defendant.
The majority’s conclusion that an offense under section 140.25(1)(d) is categorically a crime of violence also assumes that the crime a defendant intends to commit is necessarily a “confrontational crime.” But there is nothing in the statute that connects the display of an apparent weapon with
the crime the defendant has “intent to commit [in the building],” and thus nothing in the statute that requires the crime a defendant has “intent to commit [in the building]” to be a confrontational crime, as the majority concludes. N.Y. Penal Law § 140.25.
For these reasons, I am not persuaded by the majority’s conclusion that an offense under section 140.25(1)(d) of the New York Penal Law is categorically a crime of violence. I would instead conclude that it is not and that therefore the respondent is not removable as charged.
******************************
Thanks for speaking out, Judge Brown, against the BIA’s one-sided approach to statutory interpretation that almost always favors DHS over better and more reasonable interpretations offered by individuals. Then, the Article III Courts compound the problem by giving “Chevron deference” to the BIA’s one-sided jurisprudence!
Dissent matters!
Here’s Judge Brown’s official EOIR bio:
Denise G. Brown
Attorney General Merrick B. Garland appointed Denise G. Brown as a temporary Appellate Immigration Judge in July 2021. Judge Brown earned a Bachelor of Arts in 1992 from the University of Michigan, Ann Arbor, and a Juris Doctor in 1995 from the Catholic University of America. From July 2007 to July 2021, she has served as an attorney advisor, Board of Immigration Appeals, Executive Office for Immigration Review. During this time, from March to September 2019, she served on detail as a Special Assistant U.S. Attorney, U.S. Attorney’s Office, Eastern District of Virginia, and from January to July 2017, she served on detail as a temporary Immigration Judge at the Headquarters Immigration Court, EOIR. From December 1999 to July 2007, she served as an Associate General Counsel at the Office of General Counsel, Department of the Air Force. Judge Brown is a member of the District of Columbia Bar.
This class will cover the constitutional and political framework for the U.S. Immigration System, enforcement and adjudication agencies, immigrants, nonimmigrants, removals and deportations, detention and bond, immigration hearings, judicial review, grounds for removal and inadmissibility, “crimmigration,” immigration reform, “Chevron” deference, refugee and asylum status and other international protections. It will also include analyzing major immigration cases like INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (well-founded fear) and Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996) (female genital mutilation).
Except, perhaps, in Florida and other GOP-controlled “mini-reichs” where hate, censorship, and persecution of vulnerable populations have become official policy! Is this REALLY the way the next generations of Americans want to live and be remembered by history? PHOTO: Public Realm
Last Wednesday, Florida Governor Ron DeSantis — who is expected to announce his campaign for the presidency as soon as tomorrow — signed a gaggle of bills targeting LGBTQ youth.
In addition to those he had already signed into law — including a “Don’t Say Gay” measure barring teachers from mentioning sexual orientation or gender identity and another prohibiting gender-affirming care — his latest laws expand the state’s prohibition on classroom instruction about sexual orientation and gender identity, require that students use bathrooms associated with their sex assigned at birth, prohibit adults from taking children to see drag shows, and bar teachers from asking students about their preferred pronouns.
Another of the bills DeSantis just signed into law allows the state of Florida to take transgender minors away from parents who help them obtain gender-affirming care.
In raging against gender-affirming care, DeSantis lied that “they’re literally chopping off the private parts of young kids.” In fact, genital surgery is rarely, if ever, done under the age of 18. It’s not even all that common for adults. DeSantis is lying about it to scare people.
Meanwhile, the Republican presidential frontrunner has made it clear that trans people have no place in his vision of America:
“I will sign a new executive order instructing every federal agency to cease all programs that promote the concepts of sex and gender transitions at any age. I will ask Congress to pass a bill establishing that the only genders recognized by the United States government are male and female, and they are assigned at birth.”
***
My friends, these scare tactics are dangerous. Recent analysis found a 70% increase in hate crimes against LGBTQ Americans between 2020 and 2021, as the surge of these anti-LGBTQ bills began. And that’s only counting hate crimes that get reported. The years 2020 and 2021 each set a new record for the number of trans people murdered in America.
**
The cruelest irony is that these Republican bills pretending to protect children are putting our most vulnerable children at greater risk.
LGBTQ kids are more than four times likelier than non-LGBTQ kids to attempt suicide, especially transgender young people.
Gender-affirming care reduces that risk. That is why it is life-saving.
“Don’t Say Gay” laws also strip away potentially life-saving support. A teacher who positively and respectfully discusses sexual orientation and gender identity won’t turn a straight kid gay. But such a discussion will make an LGBTQ student 23% less likely to attempt suicide.
The tragic truth is that “Don’t Say Gay” laws and bans on gender-affirming care are causing more young lives to be needlessly lost.
Laws that threaten to take transgender minors away from their families if they are receiving gender-affirming care will cause these young people even more trauma.
If they were really worried about children undergoing life-altering medical procedures, they wouldn’t pass abortion bans that force teens to give birth or risk back-alley procedures.
What the GOP’s vendetta against the LGBTQ community really is, is a classic authoritarian tactic to vilify already marginalized people.
This is how fascism takes root.
We need to see DeSantis’s bills and similar bills signed by Republican governors across the land for what they are — attempts to use bigotry and hate to elevate their political standing.
And we need to see this Republican attack on LGBTQ Americans for what it is: a threat to all of our human rights.
[My thanks to Allan Piper for work on a version of today’s letter.]
************************
Meanwhile, as Caleb Ecarma reports for Vanity Fair, Florida teachers have had enough:
“For the first time, I’ve actually started talking to my investment guy about retirement,” Michael Woods, a teacher who has spent decades working in exceptional-student education for public schools in South Florida, tells me. “I’m a 30-year veteran who showed up every day, hardly calls in sick, but now I don’t want to be a teacher in Florida.” Most troubling to Woods—a gay man who teaches science and biology courses—is the ballooning list of laws that police classroom material, discriminate against LGBTQ+ educators and students, and restrict sex education. “They’re all so vague,” he says of DeSantis’s new laws. “Even things that used to be easy like human reproduction [for ninth graders], I now have to check with my co-teacher and ask, ‘Is this okay? Are we still allowed to teach this?’”
On Wednesday, the governor rubber-stamped a batch of four bills restricting LGBTQ+ rights and expanding the Parental Rights in Education Act—or, as critics have dubbed it, the “Don’t Say Gay” law. The new measures, which will be enforced at public and charter schools, ban educators from discussing sexual orientation or gender identity in pre-K through eighth grade, and place new, vague restrictions on sex education, including that such instructions “be age-appropriate or developmentally appropriate for students in accordance with state standards.”
This latest salvo was a bridge too far for many teachers, according to Rebecca Pringle, the president of the National Education Association, the largest labor union in the US. “I just talked to one teacher yesterday who is leaving and she said, ‘I can’t teach like this,’” Pringle tells me. “‘I can’t teach while worrying that they’re coming after my license, or I’m committing a felony.’ They’re leaving in protest.” Pringle says she has tried to convince teachers to stay in Florida, given the dearth of teachers in the state. But that discussion has been difficult to have, she says, with teachers who are facing death threats or harassment.
Case in point: One fifth-grade teacher in West Florida said this month that she was placed under investigation by the Florida Department of Education for showing her class Disney’s Strange World, a children’s movie that features an openly gay character. Jenna Barbee, the teacher at hand, said she played the film to give students a post-exam “brain break.” But when a local school board member learned of the showing, Barbee said, she was reported to state officials. Barbee told CNN that she had already submitted her resignation before the incident, in protest of the “politics and the fear of not being able to be who you are” in Florida public schools.
It appears that no educator has yet been prosecuted or charged under Florida’s “Don’t Say Gay” law or its legislation restricting books in schools. But as fears mount over their future implementation, parents are already witnessing the effects of shorthanded schools and overcrowded classrooms. “Last year, I saw several teachers leave, and we had substitutes for three, four months of the year,” says Reagan Miller, a parent in West Florida whose two children attend public school. “We had a teacher who taught advanced math at our middle school for years and years—he just left to go be a 911 operator,” she tells me, “which blows my mind, that becoming a 911 operator would be less stressful than being a teacher.”
. . . .
*****************************
My experience on the bench was that almost all the transgender individuals coming before me had attempted suicide on one or more occasions or expressed suicidal thoughts. To a person, they just wanted to be accepted, protected, and to live their own lives without harassment, interference, or fear. These are all things that today’s cowardly GOP “Brown Shirt Pols” would deny them.
The next generation is going to have to decide whether they want to live in a Nazi-inspired police “hate state” where individual freedoms are meaningless and cruelty, bullying, suppression, and betrayal are the norms. If not, then they had better get busy removing every GOP politico from every office — from local school boards and city councils to the Presidency.
How soon we forget the lessons of 1939! Perhaps that’s part of the GOP’s war on truth, education, and history!
The NAACP’s Board of Directors has issued a travel warning about Florida that accuses the state, and pointedly Gov. Ron DeSantis, of being “openly hostile toward African Americans, people of color and LGBTQ+ individuals.”
“Before traveling to Florida, please understand that the state of Florida devalues and marginalizes the contributions of, and the challenges faced by African Americans and other communities of color,” the notice issued Saturday states.
The civil rights organization specifically accuses DeSantis, a possible 2024 Republican presidential candidate, of aggressively attempting to erase Black history and “restrict diversity, equity, and inclusion programs in Florida schools.”
. . . .
*****************
Read Nina’s complete report at the link.
“Gathering the dead after the Colfax massacre, published in Harper’s Weekly, May 10, 1873” — White Nationalist snowflakes like DeSantis feel diminished and threatened by the truth about American history and the role of race.
The “anti-woke agenda” touted by DeSantis is a very thinly disguised euphemism for “overtly racist!” That, decades after folks like Gov. George Wallace and Sen. Strom Thurmond unabashedly made hate, segregation, and racism the “centerpieces” of failed presidential bids, racists like DeSantis are openly campaigning on the same basic platform, and enacting it in their “mini-reichs,” should be deeply disturbing to younger generations of voters who will have to live with the stupidity, ignorance, cynicism, and hate promoted by these immoral GOP pols. It’s a race backwards and to the bottom that can only end in a complete catastrophe for our nation and the world!
Also remember: It all started with the dehumanization and false demonization of migrants. Many, including too many Dems, have been unwilling to stand up against it! That’s how the GOP’s “destroy America” agenda gains traction!
Women find “trial by ordeal” can be the order of the day at Garland’s BIA:
Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Dan Kowalski reports for LexisNexis Immigration Community:
CA11 on VAWA, “Extreme Cruelty,” Chevron: Ruiz v. Atty Gen.
“Esmelda Ruiz, a native and citizen of Peru, appeals the Board of Immigration Appeals’ determination that she is ineligible for relief under 8 U.S.C. § 1229b(b)(2), a provision whose language was originally adopted as part of the Violence Against Women Act of 1994 and that outlines the conditions under which certain “battered spouse[s] or child[ren]” qualify for discretionary cancellation of removal. As relevant here, it requires a petitioning alien to show that she “has been battered or subjected to extreme cruelty” by her spouse or parent. 8 U.S.C. § 1229b(b)(2)(A)(i). Ruiz contends that the Immigration Judge and the BIA made two errors in refusing her cancellation request. First, she maintains that, as a matter of law, they misinterpreted the statutory term “extreme cruelty” to require proof of physical—as distinguished from mental or emotional—abuse. And second, she asserts that, having misread the law, the IJ and the BIA wrongly concluded that she doesn’t qualify for discretionary relief. We agree with Ruiz that the IJ and the BIA misinterpreted § 1229b(b)(2) and thereby applied an erroneous legal standard in evaluating her request for cancellation of removal. Accordingly, we grant her petition for review and remand to the BIA for further consideration. … For the foregoing reasons, we agree with Ruiz—and hold— that the BIA misinterpreted 8 U.S.C. § 1229b(b)(2). The term “extreme cruelty” does not require a petitioning alien to prove that she suffered physical abuse in order to qualify for discretionary cancellation of removal; proof of mental or emotional abuse is sufficient to satisfy the “extreme cruelty” prong of § 1229b(b)(2)’s five-prong standard. We therefore GRANT the petition in part and REMAND to the BIA for further proceedings consistent with this opinion.”
Not only did the supposedly “expert” BIA get the standard completely wrong, but Garland’s OIL continued to throw up specious arguments defending the BIA’s abusive treatment of women!
When you start with “No,” and then “reason” backwards to get there, bad things happen. Frankly, the Biden Administration was elected to “clean house” 🧹 at EOIR and to bring systemic due process, expertise, best practices, and impartiality to our nation’s dysfunctional immigration tribunals — with literally millions of lives and the future of democracy at stake! Why haven’t they done it? How do they continue to get away with it?
Lindsay Toczylowski Executive Director, Immigrant Defenders “ I always tell the new immigration attorneys at Immigrant Defenders Law Center to never forget just how stacked against our clients the odds are in immigration court.“
Lindsay writes on Linkedin:
Barometer of whether an asylum system is functioning is not “keeping the numbers low” at the border. We expected as T42 ended to see a temporary uptick due to pent up demand, but seeing the opposite indicates new deterrence measures are making asylum inaccessible to those who need protection the most.
It is obvious to those of us on-the-ground that despite no “lines” at the ports of entry there are many people here in Tijuana desperate to seek protection in the US, as evidenced by crowd at our Immigrant Defenders Law Center legal clinic today. People want to avail themselves of a safe, fair and orderly system.
This is currently impossible.
There were more than 200 people at the shelter, mostly families with small kids. When we asked whether or not people had been able to register with CBPone, most raised their hands that they had. When we asked whether they had an appt, only four had successfully made one. 4 out of 200.
We encountered excruciating cases like this asylum seeking mom & her daughter w/ severe autism. She asked if there is a special process for ppl like her, given her daughter needs medical attn, but we have to tell her to just keep trying the app. She has been waiting for months.
We continue to encounter cases where asylum seekers are unable to register with CBPone app at all. We finally registered a mom traveling alone w/ 2 babies via one of our atty’s phones, and now she can try for an appt. She has family in Los Angeles area who are waiting for her.
For people suffering from PTSD & other mental health conditions related to the horrors they fled, the constant state of anxiety waiting for an appointment is hell. One of the moms told me that every night she & her daughter cry and pray that it will be the day they can finally get help.
I am immensely proud of our San Diego based cross border team for continuing to show up and keep fighting despite the odds.
*******************************
Well said, Lindsay! Thanks for all you and your colleagues do for due process in America!
Eliza C. Klein, a retired immigration judge, said the asylum case backlog “creates a second class of citizens.”Credit…Taylor Glascock for The New York Times
Eliza C. Klein, who left her position as an immigration judge in Chicago in April, said the latest increase in illegal border crossings will strain the understaffed work force as they prioritize migrants who crossed recently.
That will leave some older cases to languish even longer, she said.
“This is a great tragedy because it creates a second class of citizens,” Ms. Klein, who started working as an immigration judge in the Clinton administration, said of those immigrants who have been waiting years for an answer to their case. The oldest case Ms. Klein ever adjudicated had been pending in the court for 35 years, she said.
“It’s a disgrace,” Ms. Klein said. “My perspective, my thought, is that we’re not committed in this country to having a just system.”
While crowds of migrants continued to seek refuge in the United States after the lifting of Title 42, U.S. officials said the border remained relatively orderly. About 10,000 people crossed the border on Thursday, a historically large number, but that dropped significantly to about 6,200 on Friday.
Tens of thousands of migrants continued to wait in makeshift camps on both sides of the border for a chance to request sanctuary in the United States. The administration remained concerned about overcrowding; Border Patrol held more than 24,000 migrants in custody on Friday, well over the agency’s maximum capacity of roughly 20,000 in its detention facilities.
. . . .
Mimi Tsankov, the president of the National Association of Immigration Judges, said that to truly address the backlog, the Biden administration would need to do more than simply hire more judges. She said that the government should increase funding for better technology and bigger legal teams, and that Congress should reform the nation’s immigration laws.
“The immigration courts are failing,” said Samuel B. Cole, the judge association’s executive vice president. “There needs to be broad systemic change.”
. . . . .
Judge Charles Honeyman, who spent 24 years as an immigration judge and retired in 2020, said he came away from his job believing the United States would need to do a better job of deterring fraud while protecting those who would be harmed in their home country.
When handling an asylum case, Mr. Honeyman said he would assess the person’s application and examine the state of their home country by reading reports from the State Department and nonprofits. Many of the applicants lacked attorneys; he believes some cases that he denied might have turned out differently if the migrants had had legal representation.
In trying to root out fraud, he would compare a person’s testimony with the answers they had given to an asylum officer or Border Patrol agent.
. . . .
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Read the full article at the link.
EOIR ABUSES ASYLUM SEEKERS — The Problem Goes Deeper Than The Number Of Judges: Quality & Culture Matter!
By Paul Wickham Schmidt
U.S. Immigration Judge (Retired)
Courtside Exclusive
May 16, 2023
While the NYT article notes that the majority of asylum cases are eventually denied on the merits, this data is often presented in a misleading way by the Government, and unfortunately, sometimes the media. According to TRAC Immigration, during the period Oct 2000 to April 2023, approximately 43% of asylum seekers who received a merits decision were granted asylum or some other type of relief. Approximately 57% were denied. https://trac.syr.edu/phptools/immigration/asylum/
Even in an overall hostile system, where individuals are often required to proceed without lawyers, and grant/denial rates among Immigration Judges vary by astounding levels (so great as to present prima facie due process issues), asylum seekers succeed on the merits of their claims at a very respectable rate. In a properly staffed and administered system where the focus was on due process and fundamental fairness for individuals, that number would almost certainly be substantially higher.
Moreover, the data suggests that toward the end of the Obama Administration and during the entire Trump Administration, the asylum system was improperly manipulated to increase denials.
I think there are three reasons for the precipitous decline in asylum grant rates, largely unrelated to the merits of the claims. First, Attorneys General Jeff Sessions and Bill Barr overruled some of the leading administrative precedents supporting grants of asylum. In the process, they made it crystal clear that they considered Immigration Judges to be their subordinate employees within the political branch of Government and that denial, deportation, and assistance to their “partners” at DHS Enforcement (actually DHS is a party before EOIR, not a “partner”) were the preferred results at EOIR.
Second, in greatly expanding the number of Immigration Judges, Sessions and Barr appointed almost exclusively from the ranks of prosecutors and government attorneys, even elevating an inordinate number of individuals with no immigration and human rights experience whatsoever. Not only were well-qualified individuals with experience representing individuals in Immigration Court largely passed over and discouraged from applying, but some of the best Immigration Judges quit or retired prematurely as a matter of conscience because of the nakedly anti-immigrant pro enforcement “culture” promoted at EOIR.
Additionally, the nationwide appellate court and precedent setter, the BIA, was expanded and “packed” with some Immigration Judges who denied virtually all of the asylum cases coming before them and had reputations of hostility to the private bar and asylum seekers. Remarkably, Attorney General Garland has done little to address this debilitating situation at the BIA.
Third, since the latter years of the Obama Administration, when a vastly overhyped “border surge” took place, political officials of both parties have improperly “weaponized” EOIR as a “deterrent” to asylum seekers, focusing on expeditious denials of asylum rather than the due process and expert tribunal functions the agency was supposed to serve. The result has been a “culture of denial and deportation” with particular emphasis on finding ways to “say no” to women and individuals of color seeking asylum.
The NYT Article also mentions that asylum merits decisions require a higher standard of proof than “credible fear determinations.” That’s true. But the suggestion that the standards are much higher is misleading. In fact, the standards governing merits grants of asylum before the Asylum Office and EOIR are supposed to be extremely generous.
In the seminal case, INS v. Cardoza-Fonseca, the Court said that “well-founded fear” is a generous standard, one that could be satisfied by a 10% chance of persecution. In implementing this holding, the BIA found in Matter of Mogharrabi that asylum could be granted even where the chances of persecution were substantially less than probable.
There is as also a regulation, 8 C.F.R. 208.13, issued under the Bush I Administration, that creates a rebuttable presumption of future persecution based on past persecution.
The problem is that none of these generous and remedial provisions relating to asylum has ever been properly, consistently, and uniformly applied within EOIR. As someone who during my time on the bench took these standards to heart, I found that a substantial majority of merits asylum cases coming before me could and should be granted under a proper application of asylum law.
Consequently, I am skeptical of judges who deny virtually all asylum claims. Likewise, I question the claims by political officials of both parties who pretend, without actual knowledge, that almost all asylum applicants at the border are “mere economic migrants” who deserve to be quickly and summarily removed.
Actually, under some circumstances, severe economic hardships can amount to persecution. Moreover, under the legally required “mixed motive” analysis for asylum, an economic aspect does not automatically obviate other qualifying grounds.
So, at its root, “credible fear” is actually an even more generous application of what is already supposed to be (but often isn’t in reality) a very generous standard for asylum. The alleged “disconnect” between the number of individuals found to have credible fear and the number actually granted asylum on the merits appears to be more a function of defective and overly restrictive decision-making at EOIR than it is of unjustified generosity of Asylum Officers screening for credible fear. It’s also important to remember that at the credible fear stage, individuals haven’t had time to marshal the substantial corroborating evidence eventually required (some would say unrealistically and unreasonably) in formal merits asylum hearings before EOIR.
Finally, just aimlessly increasing the number of Immigration Judges, without solving the systemic legal, logistical, management, quality control, training, and “cultural” problems infecting EOIR creates its own set of new problems.
Recently, a veteran practitioner before EOIR wrote the following:
In about eleven years, our local DMV went from twelve (12) judges in Baltimore and Arlington in 2012 to a hundred (100) judges in 2023 (8 BAL, 18 HYA, 30 WAS, 9 FCIAC, 14 RIAC, 21 STE). That’s an increase of 733.33%. This seismic expansion has resulted in many attorneys being overscheduled for individual hearings, which has an adverse effect on our clients, our ethical obligations, due process, and mental health.
Well-prepared attorneys, many serving pro bono or “low bono,” are absolutely essential to due process and fundamental fairness in Immigration Court, particularly in cases involving asylum and other forms of protection. For EOIR to schedule cases in a manner that does not take into consideration the legitimate needs and capacities of those practicing before their courts is nothing short of malpractice on the part of DOJ leadership.
There is a silver lining here. The EOIR judicial hiring program gives NDPA stars a chance to get on the bench at the retail level level, bring much needed balance and perspective, and to develop the credentials for future Article III judicial appointments. Since change isn’t coming “from the top,” we need to make it happen at the “grass roots level!” Keep those applications coming!
