Category: Courts

UPDATE & CORRECTED WITH PICTURE OF THE “REAL” ANNE PILSBURY — THANKS TO SIR JEFFREY!

https://www.jeffreyschase.com/blog/2023/1/18/thanking-anne-pilsbury

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

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Thanking Anne Pilsbury

“Those of us who care about people on the wrong side of history just have to help case by case, person by person.” – Anne Pilsbury, quoted in Francisco Goldman, “Escape to New York,” The New Yorker, Aug. 9, 2016.

Anne Pilsbury is well; she continues to work at Central American Legal Assistance (“CALA”), the organization she founded almost four decades ago. She was recently awarded the Carol Weiss King Award by the National Immigration Project of the National Lawyers Guild. She remains most generous in sharing her knowledge with the immigration law community in New York.

However, as of January 1, Anne has stepped down from CALA’s helm, passing the Directorship of the organization to the extremely talented Heather Axford.

It thus seems like an appropriate time to honor Anne’s extraordinary career. Her path from Washington, D.C. to Maine “country lawyer” to representing asylum-seekers in Williamsburg, Brooklyn is a fascinating one. It began with Anne’s role as plaintiff’s counsel in Hobson v. Wilson,1 a remarkable case having nothing to do with immigration law.

Hobson involved a top-secret FBI operation of the late-1960s to early-1970s called COINTELPRO, which targeted civil rights groups seeking racial equality, and another set of organizations actively opposing the Vietnam war. COINTELPRO specifically listed the Southern Christian Leadership Conference led by Rev. Martin Luther King, Jr., and the Student Nonviolent Coordinating Committee as primary targets.

In the words of the D.C. Circuit Court of Appeals, COINTELPRO focused on “(1) efforts to create racial animosity between Blacks and Whites; (2) interference with lawful demonstration logistics; (3) efforts to create discord within groups or to portray a group’s motives or goals falsely to the public; and (4) direct efforts to intimidate the plaintiffs.”2

Regarding the degree of those efforts, according to a 1976 Senate Select Committee Report

From December 1963 until his death in 1968, Martin Luther King, Jr. was the target of an intensive campaign by the Federal Bureau of Investigation to “neutralize” him as an effective civil rights leader. In the words of the man in charge of the FBI’s “war” against Dr. King:

No-holds were barred. We have used [similar] techniques against Soviet agents. [The same methods were] brought home against any organization against which we were targeted. We did not differentiate. This is a rough, tough business.3

Beginning her work on the case as a law student in D.C. and continuing with the case while in private practice in D.C., Anne and her co-counsel brought suit against the FBI for systemically violating their clients’ “constitutional rights, individually and through conspiracies, while plaintiffs engaged in lawful protest against government policy in the late 1960’s and in the 1970’s in the Washington area.”4   After a 17 day trial, Anne and her colleagues won the suit. In my view, that case alone earned Anne membership in the Due Process Army Hall of Fame.

During the time Hobson was being litigated, Anne moved to Maine, opening her own practice there in the town of Norway (pop. 5,000), traveling back and forth to D.C. for the Hobson trial. So then how did she end up in Brooklyn representing asylum seekers?

Anne explained to me that the government appealed the Hobson decision to the D.C. Circuit (in 1982), after which Anne began traveling to the New York City offices of the Center for Constitutional Rights, who served as her co-counsel on the appeal. And finding some time on her hands during the two-year pendency of that appeal allowed Anne to pursue her interest in helping those fleeing civil war in Central America, which was an issue very much in the news at the time. Although Anne found groups dedicated to the issue itself, she was less successful in locating organizations actually providing representation to immigrants from Central America.

Anne continued that INS was detaining Central Americans at that time in the Brooklyn Navy Yard.5 Anne learned that a local Catholic priest and nun, Father Bryan Karvelis and Sister Peggy Walsh, were visiting those detainees, sometimes paying the bond for their release; they even housed those who had nowhere to stay in the rectory of their Brooklyn church. And Sister Peggy had obtained accredited representative status, allowing her to represent individuals before the government.

In Anne’s words, after litigating against the FBI in Hobson, she naively thought that by comparison, dealing with INS “would be a piece of cake.” Between briefs in Hobson, Anne  organized a group of pro bono lawyers to represent Central Americans in applying for asylum under the brand-new 1980 Refugee Act. Anne spent the first year working out of her car, after which Father Bryan offered her space in the Transfiguration Church on Hooper Street, where CALA remains located to this day.

Anne thus began CALA with no funding, paying a secretary herself, and working without a salary for about two years. In a wonderfully ironic twist, CALA’s first funding came from Anne’s attorney fees in Hobson, thus making the FBI CALA’s first major benefactor.

Interestingly, Anne explained that it took a few years before the newly created EOIR began to hear Central American cases in earnest; in the early 1980s, the federal government somehow believed that the problems in the region would be over in a year or two.

Once they did begin hearing Central American cases, the Immigration Judges of that time denied virtually all of their asylum claims, generally doing so by incorrectly classifying the feared harm as “random violence.” In spite of the new asylum law intended to make adjudications fairer and free of political influence, it took years before Anne won her first asylum case.

And yet Anne persevered, building a model program and recruiting and mentoring outstanding lawyers. Anne also challenged EOIR’s misguided decisions and policies in the federal courts.

I want to make it clear that I had not included this next anecdote in my initial draft; it is being added at Anne’s own request. But while fighting to prevent the deportation of factory workers illegally arrested in a workplace raid, a March 1988 conference before U.S. District Court Judge Mark A. Constantino apparently became quite heated, resulting in the judge holding Anne in criminal contempt of court. That order was overturned by the Second Circuit in Matter of Pilsbury.6 The Second Circuit decision contained the following quote directed at Anne by Judge Constantino:

You go practice your shabby law somewheres [sic] else. Don’t you dare practice it in the Eastern District. You no longer will be permitted to practice in any part of this court. You will not be able to practice in this court or the immigration service. This court will see to it.7

Judge Constantino’s words turned out to be about as accurate as the Department of Justice’s belief that the turmoil in Central America would settle down after a few months. Some thirty-five years later, Anne’s impact on asylum case law has been nothing less than remarkable.

In 1994, in the case of Osorio v. INS,8 Anne prevailed in challenging the BIA’s determination that a labor union leader’s fear of persecution in Guatemala was not on account of his political opinion because, as a labor union leader, his point of dispute with the Guatemalan government was economic, not political.

In reversing the BIA’s conclusion, the Second Circuit quoted a statement made by Anne at oral argument, which became one of the most famous lines in asylum law history: that according to the BIA’s view, the Nobel Prize winning Soviet novelist and renowned dissident “Aleksandr Solzhenitsyn would not have been eligible for political asylum because his dispute with the former Soviet Union is properly characterized as a literary, rather than a political, dispute.”9

The court agreed with Anne that “Regardless of whether their dispute might have been characterized as a literary dispute, it might also have been properly characterized as a political dispute.”10 The Osorio decision remains extremely relevant today for its expansive view of what constitutes “political opinion” for asylum purposes, and for recognizing that nexus can be satisfied where the persecution is on account of mixed motives, a concept later codified by Congress.

A month earlier, in the case of Sotelo-Aquije v. Slattery,11  Anne had won a Second Circuit victory for a community leader from Peru who was denied asylum by the BIA in spite of being at risk of violence for speaking out against the Shining Path.

Also in 1994, Anne prevailed before the Ninth Circuit in a case called Campos v. Nail,12 challenging an Immigration Judge’s pattern or practice of denying all motions for change of venue filed by Salvadoran and Guatemalan asylum seekers who had not established a U.S. address prior to their arrest by the INS.  In applying this policy without consideration of the individual’s circumstances, the IJ forced respondents who had long settled thousands of miles away to return at no small expense to Arizona for their hearings, or face an in absentia deportation order if unable to do so. The Ninth Circuit agreed with Anne that the policy violated the petitioners’ “statutory and regulatory rights to be assured a reasonable opportunity to attend their deportation hearings and to present evidence on their own behalf,” which “in turn interfered with the plaintiffs’ statutory and regulatory rights to apply for asylum and to obtain representation by counsel at no expense to the government.”13

Anne later won two cases before the Second Circuit creating important protections for asylum seekers in establishing their credibility before Immigration Judges. The precedent decisions in Alvarado-Carillo v. INS,14 and Secaida-Rosales v. INS15 rejected the application of an inappropriate standard relying on speculation or conjecture in rejecting an asylum applicant’s credibility, and required that such determinations be based on facts material to the claim. However, in noting how difficult keeping such gains can be, Anne pointed to the fact that both of these decisions were specifically cited with disapproval by Congress in its subsequent amendments contained in the 2005 REAL ID Act giving Immigration Judge greater leeway to deny asylum based on credibility or corroboration.

In 2006, Anne won an important case recognizing that a different standard applies when determining persecution to children. In Jorge-Tzoc v. Gonzales,16 the Second Circuit held that harm that had not been found to rise to the level of persecution to an adult “could well constitute persecution to a small child totally dependent on his family and community.” The court also cited INS’s asylum guidelines for children recognizing that “The harm a child fears or has suffered, however, may be relatively less than that of an adult and still qualify as persecution.”17

I’ve just mentioned some of the highlights from Anne’s career. From her office inside the Transfiguration Church, the entity Anne founded has assisted thousands of immigrants over the years. And CALA has very much remained focused on the community it serves; as Anne says, that is very much by choice. Among those serving on the organization’s Board of Directors are early clients of CALA, along with former staff.

The community connection is not limited to people. The CALA website lists among its staff, photo and all, “Oscar Gerardi Caceres the Cat,” an actual cat rescued by Anne (as opposed to an attorney with a cat filter), whose responsibilities are listed as “greeting clients, inspecting files, and prowling the office as our security guard.” It must be pointed out that this whimsical entry also carries a far more serious meaning, as the office cat has been named to honor the memory of three fallen leaders of the decades-long violence in Central America:  Msgr. Oscar Romero (killed in 1980 in El Salvador), Berta Caceres, an environmental activist and indigenous leader killed in Honduras in 2016, and Bishop Juan Gerardi, killed in Guatemala in 1998 right after releasing the church’s devastating truth commission report on military atrocities.

Over the years, I have left every conversation with Anne having learned something important. Anne has a casual, often direct way of speaking; her words can be simultaneously remarkably simple and deeply profound.

I offer as an example this quote of hers from the same 2016 New Yorker article quoted above:

“I never expected it to take so long for our government to wake up to what was happening in Central America, and to stop funding militaries and wars, and stop blaming immigrants for trying to save their own lives….Thirty years later, I’m no longer so optimistic, I don’t expect people here to learn from history anymore. Of course, you never stop hoping they will, when the lessons are so obvious.”

In 2006, the block of Marcy Avenue on which the Transfiguration Church sits was named “Msgr. Bryan J. Karvelis Way.” I found online remarks made by City Council Member Diana Reyna during the meeting at which the naming was voted upon. Those remarks included the following:

Brooklyn parishes, like their neighborhoods, have gone through a lot of changes over the years. But one thing remains constant: in a Diocese of Immigrants, they continue to reach out to the latest newcomers, and make a home for them. Transfiguration parish is a superb example of this, and today is a good day to celebrate its history.

In paying tribute to Father Bryan, those remarks are no doubt also a tribute to the work of Anne and CALA over the past 40 years.

Please join me in thanking Anne Pilsbury profoundly, and wishing her all of the best  her future pursuits.

Notes:

1. 737 F.2d 1 (D.C. Cir. 1984).
2. Id. at 11.
3. Senate Select Committee, Book III: Supplementary Detailed Staff Reports, 94th Cong., 2d sess., 1976, S. Rep. 94-755 at 81; https://www.intelligence.senate.gov/sites/default/files/94755_III.pdf
4. Hobson v. Wilson, 556 F. Supp. 1157, 1163 (D.D.C. 1982).
5. Just to give out-of-town readers a sense of change over Anne’s career, the Brooklyn Navy Yard presently includes the largest movie studio outside of Hollywood; a large number of innovative tech start-ups, and a Wegman’s Supermarket.
6. 866 F.2d 22 (2d Cir. 1989).
7. Id. at 22.
8. 18 F.3d 1017 (2d Cir. 1994).
9. Id. at 1028-29.
10. Id. at 1029.
11. 17 F.3d 33 (2d Cir. 1994).
12. 43 F.3d 1285 (9th Cir. 1994).
13. Id. at 1291.
14. 251 F.3d 44 (2d Cir. 2001).
15. 331 F.3d 297 (2d Cir. 2003).
16. 435 F.3d 146 (2d Cir. 2006).
17. Id. at 150.

Copyright 2023 Jeffrey S. Chase. All rights reserved. Republished by permission.

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Congratulations, Anne, on an amazing career — one that continues on in a different role! You are what real leadership and courage are all about! 

Building a better America, “case by case, person by person.” I used to say that to folks in court during my days on the bench. It was a “team effort” that included everyone in the courtroom.

Also, thanks to Jeffrey for such a moving and elegantly written portrait of a real American patriot. Giving thanks and recognizing those who have “paved the way” and supported our common values and ideals is an oft-overlooked value in and of itself.

The Biden Administration and Dems generally are notoriously bad in this area. That’s particularly and painfully evident when it comes to those who “held the line” on our Constitution, democracy, and human rights — at a time when many of those leaders and politicos who would benefit were nowhere to be found “in the trenches” of defending and promoting social justice in the face of the Trump/GOP onslaught.

This is my favorite quote from Jeffrey’s profile of Anne:

“I never expected it to take so long for our government to wake up to what was happening in Central America, and to stop funding militaries and wars, and stop blaming immigrants for trying to save their own lives….Thirty years later, I’m no longer so optimistic, I don’t expect people here to learn from history anymore. Of course, you never stop hoping they will, when the lessons are so obvious.”

Clearly, Biden, Harris, Mayorkas, Garland, a number of Dem politicos, Federal Judges at all levels, and many members of the so-called “mainstream media” neither learned nor heeded the obvious lessons of history. They also ignored the law in their disgraceful “rush to reject rather than protect!”

They keep “blaming the victims” for saving their own lives, ignoring our nation’s failure to live up to our humanitarian commitments, and violating our statutes and Constitutional guarantees of the right to apply for asylum and receive a fair adjudication of claims. It’s as if World War II, Hitler, the Holocaust, and its aftermath  have been “written out” of our history — mainly by the GOP but also disturbingly by some Democrats and members of the Biden Administration.

Also, many congratulations to “rising NDPA superstar” Heather Axford on her appointment as the new Director of CALA! Heather has already “creamed” the DOJ in the notable case of Hernandez-Chacon v. Barr. See, e.g., https://wp.me/p8eeJm-52n. That case is basically a compendium of why EOIR is failing, both legally and operationally. 

Yet, disgracefully, rather than “tapping into” the expertise and organizational talents of Heather, Anne, and their NDPA colleagues, Garland and his team are presiding over the “death spiral” of EOIR — endangering our entire U.S. justice system and threatening and degrading human lives!

I’m proud to say that Heather “got her start” practicing before the “Legacy” Arlington Immigration Court with the Law Offices of Alan M. Parra following her graduation from UVA Law! I know that Heather will carry on and build upon Anne’s humanitarian legal legacy and leadership example at CALA!

🇺🇸 Due Process Forever!

PWS

02-19-23