“Legacy INS” – immigrationcourtside.com

🇺🇸 REMEMBERING THE CARTER YEARS

The Carter Years

By Paul Wickham Schmidt

President Jimmy Carter — Jimmy Carter
1924-2024
39th President of the U.S.
Official White House Photo
Public Realm

President With An “Afterlife”

Jimmy Carter (1924-2024), the 39th President of the United States is an anomaly among modern U.S. Presidents. He is probably better known and more widely respected for his post-Presidency achievements and work than for his accomplishments during his single four-year term (1977-81).

After losing the 1980 election to Ronald Reagan in a landslide, Carter devoted himself to humanitarian work on a national and international scale. He founded the Carter Institute. He and his wife Rosalynn (1927-2023) were famous for their never-ending work personally of building housing for communities in need for Habitat for Humanity.

Carter wasn’t just a “mouthpiece,” promoter, or financial supporter. He and Rosalynn could often be found with their sleeves rolled up digging, pounding, sawing, and painting with the rest of the crews. Individuals in the District of Colombia fondly remember him working side-by-side with community members to build housing that they still proudly reside in!

Carter is generally regarded as one of the most intelligent and fundamentally decent Presidents. However, his term was largely viewed as unsuccessful at the time. Economic woes, an energy shortage, the Iranian hostage crisis, tensions with the Soviet Union, and the Cuban boatlift overshadowed his meaningful achievements such as the Camp David Peace Accords and creation of the Department of Education.

As a career civil servant, I worked for the Carter Administration in several senior positions at the “Legacy” Immigration and Naturalization Service (“INS”). Although I never met the President in person, I certainly saw his facsimile signature on many official documents.

One of the first of these was a Presidential Pardon for Vietnam Era Draft Evaders that he issued shortly after taking office. As the then legislative and regulations expert in the INS Office of General Counsel, I was charged with figuring out the practical effect of the somewhat vague language of the pardon on cases of former U.S. citizens who had renounced their citizenship abroad, primarily in Canada, during the war years.

Human Rights Focus

The Carter Administration was the only one in my lifetime that made human rights around the world a key focus of policy. While it was a great and noble idea in theory, it often clashed with the political and international realities of governing during the waning stages of the Cold War.

From my “deep in the bureaucracy” perspective, the Carter Administration also too often exhibited a “tone deafness” when it came to dealing with the “old line Democrats” and Committee Chairs who then controlled Congress. For example, I was asked to draft a comprehensive legalization and employer sanctions immigration bill, but instructed not to consult with any Committee staff. Needless to say, the final product went over like a lead balloon. As I remember, the Dem Committee Chairs balked at even introducing the bill and it got a “DOA reception” from both Dems and the GOP.

INS Commissioner Leonel Castillo: The Fall of a Rising Star

It probably didn’t help that Carter’s Commissioner of Immigration was Leonel Castillo. Immediately prior to appointment, Castillo was the City Controller of Houston, the first Hispanic-American to hold the job, and was considered a “rising young star” in Texas Democratic politics. (Yes, there was such an animal in those days.)

Unfortunately, it wasn’t a very good fit. Perhaps, it was simply “mission impossible” for an Hispanic leader then. Leonel was mostly interested in getting out, pressing some flesh, and the “big picture” of immigration. But, many of INS’s problems and challenges involved “nitty gritty” technical issues, fending off interference from a small army of “whiz kid” special assistants at the DOJ, and dealing with the always prickly Congressional Committees who controlled agency funding.

This wasn’t Leonel’s strong suit. He surrounded himself with his own group of young special assistants, executive assistants, and analysts, many from Texas, who didn’t “mesh well” with the career bureaucrats in the INS Central Office, the largely “good old boy” field management structure, the egos in the DOJ, and the “Kings of the Hill.”

Leonel never established rapport with Sen. Ted Kennedy, then the most recognizable Democrat in Congress and, beginning in 1978, Chair of the powerful Senate Judiciary Committee, which exercised INS oversight. Kennedy later went on to unsuccessfully challenge President Carter for the 1980 Democratic Presidential nomination. Nor did he have a good working relationship with powerful Chair Peter Rodino (D-NJ) of the House Judiciary Committee, who had been deeply involved in INS issues for many years.

Additionally, Leonel had a rocky relationship with the formidable Rep. Elizabeth Holtzmann (D-NY), the Chair of the House Immigration Subcommittee. Holtzmann was “all over INS” for what she deemed to be inadequate efforts to locate, investigate, and denaturalize former Nazi war criminals living in the U.S. who had been erroneously admitted as refugees following World War II.

At the time, I was responsible for drafting Leonel’s congressional testimony and accompanying him to congressional hearings. As he was struggling through one contentious hearing with Chairperson Holtzmann, Leonel inadvertently knocked over the water pitcher, soaking the witness table. Holtzmann reached under her dais, grabbed a towel, and unceremoniously threw it at the hapless Commissioner with an implicit admonishment to “clean up his mess.” Committee staff later quipped that perhaps it was time for INS to “throw in the towel.”

Needless to say, that wasn’t one of the “high points” in the Carter Administration’s dealings with Congress. Chairperson Holtzmann eventually succeeded in wresting control of all Nazi immigration investigations and prosecutions away from the INS and vesting it in a newly-created Office of Special Investigations (“OSI”) in the DOJ’s Criminal Division.

While my “political bosses” tended to view this as a “bureaucratic defeat,” I told them it was anything but. Not having to deal with the Chairperson on Nazi investigations on a daily basis turned out to be a huge “plus” for INS, particularly the OGC, where the “Nazi Unit” was then located. It was well worth the “loss” of the half-dozen positions to the Criminal Division, which then greatly expanded the OSI.

General Counsel/Acting Commissioner David Crosland

At the end of the Ford Administration, INS General Counsel Sam Bernsen was serving in the position as a “rehired annuitant.” That meant technically he had already retired and was continuing to serve on a special arrangement. The new Administration “finalized” Sam’s retirement and appointed a new General Counsel, David Crosland, a civil rights attorney from Atlanta, Georgia with ties to the “Georgia Mafia” that surrounded Carter and his first Attorney General, former Fifth Circuit Judge Griffin Bell.

Dave had once worked in the Civil Rights Division of the DOJ under then AG Ramsey Clark. After Carter left office, Dave remained in the immigration field for the rest of his life. Indeed, we were both Immigration Judges at the Arlington Immigration Court, and he was still on the bench at the Baltimore Immigration Court at the time of his death in 2022.

Shortly after Dave’s appointment as General Counsel, the then Deputy General Counsel, Ralph Farb was elevated to the Board of Immigration Appeals (“BIA”). I became Dave Crosland’s Deputy.

Sam Bernsen, however, landed on his feet. Although he had 40+ years of Government service, he was relatively young, perhaps 57, having begun his career as a messenger at Ellis Island in his late teens. After a short period of private practice with Larry Latif (who later was my law partner at Jones Day), he became a name and managing partner of the Washington, D.C. Office of Fragomen, Del Rey, and Bernsen, a leading immigration “boutique.” I later succeeded him in that position in 1992. Immigration is a small world!

There was an old anecdote (perhaps apocryphal) that Judge Bell once said that at INS, “Castillo represented the White House, Deputy Commissioner Mario Noto represented House Judiciary Chair Peter Rodino, Special Assistant to the Commissioner David Dixon represented Senate Judiciary Chair Jim Eastland, and Crosland represents me!”

Ben Civiletti Succeeds Judge Griffin Bell as AG

Judge Bell eventually gave way to Attorney General Ben Civiletti in 1979. Among the many “Special Assistants” working for AG Civiletti was young Harvard Law grad, Merrick Garland. His meteoric career trajectory occasionally crossed paths with my role at INS. I remember him from those days as a smart, serious, ambitious, earnest guy.

Civilewti & Staff — Attorney General Ben Civiletti (1979-81) with top DOJ staff including current AG Merrick Garland (5th from left)
PHOTO: NT Times

Also in 1979, Leonel Castillo resigned as Commissioner and returned to Houston to run for Mayor. But, his tenure at INS proved no help. He finished third in that race and was unsuccessful in three additional bids for local elective office. INS proved to be a political “career killer” rather than a “career enhancer.”

Meanwhile, no successor to Castillo as Commissioner was ever nominated and confirmed during the Carter Administration. My “boss,” David Crosland became the Acting Commissioner of INS, and I became the Acting General Counsel, a situation that continued for the balance of the Carter Administration.

For me, the Carter Administration was one of the formative periods of my legal career. At 31, I became the top legal official at INS which involved running the nationwide legal program, advising the Acting Commissioner and other senior managers at INS, and also being the “point person” for Immigration litigation, legislation, and other issues with the Attorney General, the Solicitor General, and heads of other DOJ divisions and offices.

I remember once returning to my office after a long day of meetings to be handed a stack of yellow message slips (no voice mail or e-mail in those days) by our receptionist. One thing that I always did at the OGC and that served me well thereafter was to faithfully return all phone calls and answer all my personal correspondence.

The receptionist told me in an excited voice that “Mr. Letti’s” office had been trying to get ahold of me all day, and that I had to return that call first! I puzzled over who “Mr. Letti” was, because it didn’t ring a bell, offhand. “You know Mr. Letti,” said the receptionist, “Mr. Benson Letti, (as she had written on the message slip), said it was very important.” Finally, the light bulb went off, “Ah, you mean Ben Civiletti, the Attorney General,” said I. Yes, said the receptionist, “THAT Mr. Letti.”

During 1979, I was involved in a notable incident involving Lyudmila Vlasova , a star Russian ballerina, in a plane halted on the tarmac at JFK. The issue was whether she was leaving the U.S. of her own volition, as her husband, Aleksandr Godunov, also a dancer with the Bolshoi Ballet, had defected and sought asylum in the U.S. (In a strange time warp, in those days a Dem Administration was actually more concerned about individuals being denied their right to seek asylum here than in “deterring” legal asylum seekers from “darkening our doors!”)

Part of the “Plan B” hatched for determining her situation was to designate AG Civiletti as an “Immigration Officer” authorized to detain and examine foreign nationals. I duly drafted up a legal document so designating the A.G. Fortunately, the situation was resolved (she voluntarily departed the U.S.) without resorting to Plan B. Several weeks later, I received the “appointment document” back by mail with a handwritten note by AG Civiletti that said something like: “With thanks and great relief it wasn’t needed!” The 1985 movie “Flight 222” was loosely based upon this incident.

Four Issues That Changed U.S. Immigration: The Refugee Act of 1980; The Cuban Boatlift; The Iranian Hostage Crisis; The INS Attorney Reorganization

Four issues stand out for me from the Carter years. The first was the enactment of the Refugee of 1980. It was the first codification and legal affirmation of our International obligations to refugees and asylum seekers under the United Nations Convention and 1967 Protocol Relating to the Status of Refugees.

It gave me a chance to work closely with two of my contemporaries in the Administration who later went on to become “intellectual giants” in the field of human rights. One was David A. Martin, then Special Assistant to Patt Derian, the Assistant Secretary for Human Rights and Humanitarian Affairs at the State Department. David went on to become a famous Professor at UVA Law, co-author of leading textbooks, the General Counsel of INS in the Clinton Administration, and Principal Deputy General Counsel of DHS during the Obama Administration (then DHS Secretary Janet Napolitano was his student at UVA Law).

The other was Alex Aleinikoff, then an attorney in the DOJ Office of Legal Counsel. Alex also went on to become a professor, co-author (with David Martin) of textbooks, an INS Senior Executive, Dean of Georgetown Law, and Deputy UN High Commissioner for Refugees.

I also worked closely with Committee staff in Congress, particularly the late Jerry Tinker who was Senator Kennedy’s staffer on the Senate Judiciary Committee. I can still remember getting a phone call one evening from Jerry saying “Schmidt, I’m in a jam. Could you draft me some legislative history for the Refugee Bill and send it over. You know what the Senator wants.” It was sort of a “hinky” request, given the state of relations between the Carter White House and Senator Kennedy. But, I figured it would be “career preserving” to give Jerry a hand, without mentioning it to anyone else.

A second major event, unfortunately coinciding the the enactment of the Refugee Act of 1980, was the so-called Mariel Boatlift. INS hadn’t had time to fully implement that Act before we were confronted with another in a long line of “refugee crises.” This one involved Castro’s unexpectedly and temporarily “opening” some ports in Cuba and a flotilla of small boats going from Florida to pick up friends and relatives.

Cuban Boatlift — The 1980 Cuban Boat lift was a crisis for the Carter Administration that has had lasting impact on U.s. immigration policy, not necessarily for the better.
Official USG Photo
Public Realm

We had to call upon FEMA — who famously introduced themselves as the “Masters of Disaster” — and the Orange Bowl became the initial “processing center” for new arrivals. The vast majority of those who came were quickly screened and released into the community. They eventually were able to get green cards, without applying under the Refugee Act, under the Cuban Adjustment Act of 1966.

However, there was a proportionately small, yet highly visible, group of individuals who had been released from Cuban jails, obviously without documentation of the crimes for which they had been imprisoned. They were processed for possible exclusion and deportation, which invoked the asylum and withholding of removal provisions of the new Refugee Act.

Since INS had no suitable housing for “high risk” criminals, we had to enter agreements with the Bureau of Prisons to reopen some “dormant, high-security facilities” — like the Atlanta Penitentiary and McNeil Island Penitentiary in the State of Washington. Additionally, we were allowed to use military bases such as Fort Chaffee, Arkansas; Fort McCoy, Wisconsin; Fort Drum, New York, and Fort Indiantown Gap, Pennsylvania to detain those suspected of criminal activity who required Immigration Court hearings. The then “Boy Governor” of Arkansas, Bill Clinton, blamed well-publicized escapes from Fort Chaffee as a factor leading to his re-election defeat.

We also lacked sufficient Immigration Judges in those locations to hear the cases. That required an emergency effort to assemble and train a corps of “Temporary Immigration Judges” from the ranks of active and retired Administrative Law Judges and DOJ Attorneys.

The Cuban Boatlift got the Refugee Act of 1980 off to a rocky start. Many of the initial “precedents” on asylum issued by the Board of Immigration Appeals (“BIA”) involved Cuban applicants with criminal records, not the most sympathetic group. That, combined with some sensationalist dramatic portrayals of criminals among the arrivals, such as the movie “Scarface,” starring Al Pacino, hardened attitudes towards refugees generally, while also producing some relatively restrictive initial interpretations of the Act.

Additionally, the Boatlift ushered in an era of mass long-term immigration detention. While the Boatlift eventually subsided, the phenomenon of large-scale immigration detention has continued to grow over the years. It has become a controversial “staple” of U.S. immigration enforcement and “deterrence.” It has been used, in some form or another, by all Administrations since Carter.

The “Carter experience” also hardened views toward large-scale migration in the Executive Branch, as both politicos and bureaucrats vowed “never again!” During the Reagan Administration, the new and oft-criticized device of “high seas interdiction” was used to stop further vessels from Cuba and Haiti from even reaching the U.S. and invoking the Refugee Act protections. Some individuals were brought to the U.S. after preliminary screening onboard Coast Guard vessels. But, most were returned without hearings (Haitians) or sent to the U.S. base at Guantanamo Bay, Cuba (Cubans).

A third pivotal event, which also played a role in the demise of President Carter, was the so-called “Iranian Hostage Crisis.” Most of the “action and drama” took place in and around the U.S. Embassy in Tehran. But, there was also a “domestic component.”

Then Attorney General Griffin Bell was shocked to learn that the INS at that time had no national database on the number, location, and status of Iranian students studying in the U.S. This led to new efforts and regulations to require all such Iranian students to “register” with the INS and imposed penalties, including deportation, on those who failed to do so or committed crimes in the U.S. — even if those crimes in and of themselves were not specified as grounds of deportation.

While the frustration and outrage of Administration officials was quite understandable, the whole exercise was was somewhat like “kicking the cat after a bad day at the office.” Almost all the Iranians studying in the U.S. at that time were supporters of the deposed Shah’s U.S.-backed government. The “radicals” who were holding hostages in the Embassy weren’t anywhere near the U.S.

Most of the enforcement efforts against Iranians in the U.S. became embroiled in never-ending litigation. However, the concept of “special registrations” for groups of non-immigrants, particularly from Middle Eastern countries, became part of the “immigration regulation toolbox.” It was repeated after “9-11” and is also one of the antecedents to Trump’s so-called “Muslim ban.”

Finally, my fourth main event from the Carter Administration was “phase one” of the INS attorney reorganization, which created the Chief Legal Officer for each INS district in the U.S. Started under General Counsel/Acting Commissioner Dave Crosland, the second phase of the reorganization was completed during the Reagan Administration under the leadership of General Counsel Maurice C. “Iron Mike” Inman, Jr. Along the way, Mike changed the name from “Chief Legal Officer” to “District Counsel.” They were the forerunners of today’s “full service” Offices of Chief Counsel at ICE, an integral part of DHS’s operations.

Prior to Crosland and me, the INS Trial Attorneys, although selected by and under the “program management” of the General Counsel, worked for the District Directors, their clients, and were supervised and evaluated by them. Additionally, an even larger group of INS attorneys, Naturalization Examiners, also worked for the District Director, although they were selected and under the program direction of the Assistant Commissioner for Naturalization in the Central Office.

Using a plan developed by then Regional Counsel for the West, Bill Odencrantz, we reorganized the program along the DOJ’s traditional “attorney-client” model to place assignment, supervision, and evaluation of all INS attorneys under the General Counsel. This also gave the General Counsel, in consultation with the Assistant Commissioner, authority to use legal resources in any district “across programs” when needs dictated.

As you might expect, this move was met with fierce opposition from District Directors, Regional Commissioners, and some naturalization attorneys. As the “point person” for the reorganization, I became the recipient of some of the most vehement and vocal objections.

During “phase two,” completed during Mike Inman’s tenure, the attorneys were moved out of the naturalization program into the Offices of District Counsel and replaced with non-attorney examiners in the naturalization program, which, in turn, merged with the overall adjudications program.

This is much the way these programs operate today within DHS, with the legal program being part of ICE and the naturalization function part of USCIS. It would have been hard to create the DHS, with all its legal issues, litigation, and complexities, without the “groundwork” being laid during the Carter Administration, and later the Reagan Administration, for a modern, quasi-independent legal program reporting to the ICE Principal Legal Advisor.

Those Were The Days, My Friend

Looking back, I appreciate the seriousness and integrity with which President Carter and those around him took governing. (I also got frequent calls from Vice President Mondale’s office about immigration issues.) I will always remember the Carter years as a time of both excitement and professional growth. I started as one of a handful of attorneys on the staff of the INS General Counsel and ended up running the INS’s nationwide legal program and being the agency’s top lawyer, albeit in an acting capacity while Dave Crosland was the Acting Commissioner.

I appreciated and learned from the opportunities that came my way. I particularly enjoyed helping to select, form, organize, and work with the many outstanding attorneys, agents, and staff at INS and DOJ, a number of whom remained my friends and sometimes became colleagues again as my career continued into the Reagan Administration and eventually, beyond INS. The “team approach” to the law and problem-solving that I developed and honed during the Carter years stayed with me and became key to the rest of my career.

(12-29-24)

🇺🇸⚖️🗽HUNDREDS GATHER FOR MPI’S GALA CELEBRATION OF THE INCOMPARABLE DORIS MEISSNER, THE CONSUMMATE “PRACTICAL SCHOLAR/PUBLIC SERVANT!”

By Paul Wickham Schmidt

Exclusive

May 16, 2024

Washington, D.C. — More than 300 “movers and shakers” of the migration world came together last night at the Intercontinental Hotel — Wharf in Washington D.C., to recognize and celebrate the continuing life’s work and leadership of Doris M. Meissner, former Commissioner of Immigration and a Justice Department policy official under administrations of both parties. The event was sponsored by Doris’s current employer, the Migration Policy Institute (“MPI”) where she is Senior Fellow and Director of the U.S. Immigration Policy Program.

I first met my fellow Wisconsinite and University of Wisconsin alum in 1975, during the Ford Administration, when she was a White House Fellow assigned to the Attorney General, and I was a young attorney working in the “Legacy” Immigration & Naturalization Service (“INS”) Office of General Counsel, then part of the Department of Justice (“DOJ”). Our careers intertwined, and Doris was one of my role models and inspirations over five decades of work to make fairer and better immigration, justice, and human rights policies for America. Those are values we both believed in and strived to promote!

The gala raised over $1,000,000 for the newly-established Doris Meissner Innovation Fund” at MPI.

Somewhat predictably, the “Honorary Co-Chairs,” Former President Bill Clinton and Former Wyoming Senator Alan Simpson, did not attend in person, although Senator Simpson contributed a video tribute. Nevertheless, there were plenty of prominent speakers including Muzzafar Chishti (Senior Fellow, MPI), The Honorable Roberta Jacobson (Chair, MPI Board of Trustees), Anthony D. Romero (Executive Director, ACLU), Helene D. Gayle (President, Spelman College, by video), Soren Bjorn (CEO, Driscoll’s, which donated fresh raspberries for the dessert), Andrew Selee (President, MPI), and The Honorable Alejandro Mayorkas (Secretary, DHS).

The highlight of the evening was a short video starring some of Doris’s fellow social justice luminaries sharing their personal recollections of her many achievements and her impact on them. That was followed by some “family commentary” from Doris’s daughter, Christine Meissner and her brother Andy that also brought into the equation the work of their father and Doris’s beloved husband, the late Charles “Chuck” Meissner. “Teamwork” is critical to success, particularly on the family level!

In her remarks, Doris emphasized the influence of family on her work and the cosmic continuing importance of robust migration policies to our “nation of immigrants.” Among the most touching recollections were of those Americans she encountered later in life who had gotten their start as immigrants and naturalized citizens during her tenure at INS. One was a talented physician who performed essential surgery for both Doris and her daughter.

My main “takeaway” was her challenge to “keep the dream alive” — even through tough times — and her recognition of and lifelong commitment to “the human potential of migrants.”

On a personal level, it was great to see many friends and colleagues who had served as senior executives at INS, the Executive Office for Immigration Review (“EOIR”), and “Main Justice” during my 35 years at the Department, spanning five decades, as well as folks I worked with during my time in private practice.

I was particularly delighted to chat with my and Doris’s long-time mutual friend and colleague Jean Lujan. Jean, Doris, and Delia Combs Riso were part of the famous (or infamous) “Asylum Sisters’ Trio” who occasionally entertained at “Legacy INS” events! Sadly, MPI didn’t include an “encore performance” on the night’s program!

It was also wonderful that Doris got this well-deserved acclaim and recognition while her career is ongoing and she is actively inspiring those around her. Too often, I fear, we wait until the “truly great ones” are gone to recognize what we gained by their lives and lost upon their departure. Doris promised that she isn’t going anywhere for a long time! That’s fine and dandy with all of us!

At the same time, I experienced a bit of wistfulness. Here we were in a gathering of perhaps the best minds and problem solvers in the history of American immigration; yet, both the messages of the past and the potential promise for the future are being lost on today’s feckless political leaders and media pundits as they spout myths, spread fear, and recycle failed cruel, ineffective, and wasteful “mega enforcement and rights’ reductions or outright violations” on today’s migrants.

Indeed, some of those in the room had likely come to Washington for “dual purposes:” Not only to honor Doris, but also to valiantly try to inform and convince Congress and the Administration of the cruel, inhuman, and too often deadly results of years of “brain dead” enforcement policies and suppressing or eradicating the due process and human rights of migrants, all while intentionally eschewing enlightened, achievable, common sense reforms to our badly outdated and often intentionally dysfunctional immigration system.

One would search in vain for political leaders with the intellectual prowess, moral courage, human decency, and practical problem solving abilities of Doris Meissner among those driving, influencing, and seeking to dictate today’s misguided, ineffectual, and wildly inconsistent Government immigration policies. Without a moral compass on deck, the ship is veering badly and dangerously off course!

I am, of course, hopeful and encouraged that the new Doris Meissner Innovation Fund at MPI will fulfill its vision of creating “new opportunities to advance pragmatic solutions that work in the interests of all segments of society.” Yet, I am objectively fearful that such essential and potentially transformational efforts will “go in one ear and out the other” of our current political leaders and “pass over the heads” of the voting public which, in the overwhelming majority, owe their very existence to the phenomenon of human migration — of all kinds, types, and populations. How soon we forget where we all came from, and where we are going!

Thanks again, Doris, my friend and fellow Badger, for your unyielding efforts to “keep us on the high road!”

🇺🇸 Due Process Forever!

PWS

05-16-24

🇺🇸🎖️⚖️🗽 😇 R.I.P. — PETER SCHEY (1947-2024) — Legendary Litigator, Human Rights Advocate, Champion Of Equal Justice For All, Founded National Immigration Law Center, Center For Human Rights & Constitutional Law

Tribute by Juan Jose Gutierrez* in LA Education:

https://laeducacion.us/fallecio-peter-schey-apostol-legal-de-millones-de-inmigrantes-mexicanos-y-latinoamericanos/

Attorney Peter Schey (1947-2024)

The Angels.

Today [April 2] at 1:15 in the afternoon the heart of a giant of jurisprudence stopped beating. He alludes to the lawyer defending human rights, civil rights and constitutional law, the great friend of Mexico and Latin American immigrants, lawyer Peter Schey. He was 77 years old.

Schey was born in the Republic of South Africa, on March 23, 1947. He came with his parents, who emigrated to the United States. Upon graduating from high school in 1966, he applied for and was admitted to pursue a bachelor’s degree in psychology at the University of California, Berkeley, where he graduated in 1970. Additionally, in 1973 he completed his studies in law school at the California Western School. of Law.

His career as a jurist began in 1973. He practiced law at the Legal Aid Society of San Diego, where he had legal representation of low-income immigrants, until 1978, when he moved to the City of Los Angeles, where he founded the National Immigration Law Center.

Desire for justice motivated him to move from San Diego to LA

The main reason that prompted him to leave the City of San Diego was related to the arrest of Mexican activist José Jacques Medina. He had been arrested and imprisoned by agents of the Federal Bureau of Investigation (FBI).

Due to his undocumented status, the FBI handed him over to the Department of Immigration and Naturalization (INS) to immediately deport him to Mexico. Jacques Medina’s wife, Rosario Moreno, traveled from Los Angeles to San Diego to ask Schey to assume the legal defense of her husband.

He immediately accepted and took on the defense with passion and professionalism, which would last for a dozen years until in 1989 or 1990 his case was closed because Jacques Medina requested and obtained his immigration regularization through the “Amnesty Law” of 1986. During that period, the defense stopped his deportation under consideration of the defendant’s right to asylum. He argued that if he were returned to Mexico his life was in danger.

Founded legal institution of historical significance

In 1980, Schey founded and became president and CEO of the Center for Human Rights and Constitutional Law. He remained at the head of this important institution for 44 years and 4 months.

In these four decades, Schey filed Class Action lawsuits in favor of the constitutional rights of millions of immigrants from various parts of the world, but especially Mexicans and Latin Americans. I will mention three examples:

1.- In 1994, the Californian political extreme right adopted a fascist, racist and cruel policy against undocumented immigrants and created Proposition 187, which was approved by a majority of the state electorate in November of that year. This resolution denied medical care, social services and education to people suspected of having entered California irregularly.

However, the day after its approval, this ordinance was stopped in court by a lawsuit led by Peter Schey and known as League of United Latin American Citizens v. Wilson. After a severe legal battle, this very important lawsuit prevented said proposal from being implemented, which meant a major offense to the migrant community. In July 1999, Democratic Governor Gray Davis reached an agreement with leaders of pro-immigrant organizations and his lawyers and gave up appealing the decision of the Ninth Circuit Court of Appeals that had declared it unconstitutional. And therefore, this disastrous Proposition was canceled without it ever being able to be implemented.

2.- Another legal case, known under the title Flores v. Reno established a minimum standard of quality of life for undocumented immigrant children detained in the United States and recognized the Center for Human Rights and Constitutional Law as the only nongovernmental organization authorized to certify that detention centers housing any undocumented minor met the agreed minimum standards and also established the prompt release of the minors and that they could be delivered to relatives residing in the United States as soon as possible.

3.- I cannot close this remembrance of Schey without mentioning the case known as Plyler v. Doe. Schey participated in this lawsuit and it was filed because in 1977 the State of Texas ordered that in the public school system, children who did not provide proof of being citizens of the United States would have to pay the school district, to which their school belonged, one thousand dollars. or would not be allowed access to the instruction.

In 1982, the US Supreme Court ruled that ‘a state cannot prevent the children of undocumented immigrants from attending public school.’

With these three examples, among many others that could be cited, it is clear that millions of undocumented girls and boys and workers must be eternally grateful to benefactor Peter Schey because thanks to his efforts in the courts, today they enjoy legal protections.

In short, thanks to his social education, his effort, persistence and tenacity as a general of immigration laws and constitutional law, as our great colleague Peter Schey undoubtedly was, countless immigrants can enjoy a decent life.

*Juan José Gutiérrez is executive director of the Full Rights Coalition for Immigrants based in Los Angeles.

***************************

Needless to say, I butted heads with Peter a number of times during my tenure in the Office of General Counsel at the “Legacy INS” (1976-87). I always had the greatest respect for his legal talent, courage, dedication, and persistence! He will be missed! But, his contributions to the law and the organizations he founded live on.

🇺🇸 Due Process Forever!

PWS

04-04-24

📖 BOOKS: BLITZING ⚡️ BORDER MYTHS & SACKING 🏈 SELECTIVE HISTORICAL AMNESIA — Jonathan Blitzer Takes On Generations Of Official Misconduct, Human Misery At The Border — PLUS: Here’s Your Chance To Hear From Those Migrants Whose Voices Are Ignored By U.S. Politicos & Media, Courtesy Of Immigration Law & Justice Network & The Hope Border Institute!

Read Manuel Roig-Franzia’s WashPost review of Jonathan Blitzer’s book “Everyone Who Is Gone Is Here:”

https://www.washingtonpost.com/books/2024/02/05/everyone-gone-here-blitzer-review/

Blitzer’s villains include “[n]umerous U.S. institutions, bureaucrats, and presidents” who supported and enabled “savage governments responsible for vast numbers of people killed — many of them poor and Indigenous.”

Blitzer has particular contempt for “one of the most ineptly titled American officials ever — the State Department’s assistant secretary for human rights, Elliott Abrams — [who] tried to suppress information about the massacre of 978 people, including 477 children, in the Salvadoran village of Mozote.” Abrams, later was convicted of misdemeanors for withholding information from Congress in connection with the Iran-Contra scandal, but was pardoned by Bush I.

Our political bureaucracy continues to have infinite capacity for inventing intentionally misleading, mocking titles that directly contravene truth, particularly when it comes to abusing human rights. For example, the so-called “Migrant Protection Protocols” (a/k/a “Remain in Mexico”) were quite specifically intended to unlawfully reject migrants who had established a “credible fear” of persecution! The MPP resulted in numerous “publicly documented cases of rape, kidnapping, assault, and other crimes committed against individuals sent back under MPP.” See https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjq1pmw_qWEAxUwL1kFHUbSDMIQFnoECBAQAw&url=https://www.americanimmigrationcouncil.org/research/migrant-protection-protocols#:~:text=According%20to%20Human%20Rights%20First,individuals%20sent%20back%20under%20MPP.&usg=AOvVaw2ehZRBR_jXYoI41NZZN2DK&opi=8997844.

According to U.S. District Judge Jesus Bernal, the MPP “trapped [] asylum seekers in Mexico in dangerous conditions that impeded their ability to access the U.S. asylum system or obtain legal representation.” See https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjLgaLW_6WEAxUqFmIAHb5MDlEQFnoECCYQAQ&url=https://immigrationimpact.com/2023/03/24/where-the-migrant-protection-protocols-stand-four-years/&usg=AOvVaw18vgP5kU86mgTigCBEFLNY&opi=89978449%0A%0A.

Among Blitzer’s unsung heroes are “relentless US. immigration advocates,” the late Rep. Joe Moakley (D-MA) who “grasped all the nuances of U.S.-manufactured border crises,” and of course, an “array of migrants” who bravely persevered in the face of treacherous, dishonest, ill-informed, and often deadly U.S. immigration policies intended to “break them” and destroy their humanity. That disgraceful process continues today — on steroids!

The review ends on a perhaps unexpectedly optimistic note:

And yet, after reading Blitzer’s book, one can’t help but think that the impossible might be possible — that maybe, just maybe, this could be fixed. He’s not trying to lay out a set of policy solutions. He’s making a more nuanced plea, a rejection of the “selective amnesia” of politics in favor of a deeper understanding of how we — as a nation and as a region — got here.

It is a book with a “mission,” he writes, a nudge for U.S. decision-makers and a platform for voices on the other side of the border, a “kind of go-between: to tell each side’s story to the other; to find a way to bring the Homeland Security officials into the housing-complex basement; and to allow the migrants in the basement to participate, for once, in the privileged backroom conversations that decide their fate.”

Hopefully, those with the power to change things will listen.

Manuel Roig-Franzia is a Washington Post features writer and formerly served as The Post’s bureau chief in Miami and Mexico.

*************************

Following up on the last point — the “seldom-heard and never-heeded by our politicos and media” voices of those whose lives and humanity are threatened by our failed policies, this Thursday, Feb. 15, @ 3 PM EST, Immigration Law & Justice Network & The Hope Border Institute will present a free webinar, “Stop The War On The Border: Migrants Speak:

Stop the War on the Border: Migrants Speak – Detengan la Guerra en la Frontera: Migrantes Hablan

Date & Time

Feb 15, 2024 03:00 PM in

Description

ILJ Network and our partners invite you to participate in this webinar and hear directly from migrants in the northern Mexican border and the U.S. interior on how restrictions to asylum and humanitarian parole impact their lives.

ILJ Network y compañeros de coaliciones los invita a participar en este evento virtual para escuchar directamente de migrantes, ubicados entre la parte Norte de México y el interior de los Estados Unidos, acerca de cómo dichas restricciones al derecho de asilo y de parole humanitario impactan sus vidas.

Webinar Registration

https://us02web.zoom.us/webinar/register/WN_efx1ZeUqTCmSOVCBNTRxrg#/registration?os=ipad

Information you provide when registering will be shared with the account owner and host and can be used and shared by them in accordance with their Terms and Privacy Policy.

This is very timely! Rarely do we hear from those whose lives, dignity, and safety are being bargained away and devalued as if they were “commodities” at the disposal of disingenuous politicos and interests who have turned their misery and desperation into “profit centers” and political rallying cries.

🏈🏆Finally, on another topic, congrats to Coach Andy Reid, Patrick Mahomes, Travis Kelce, the rest of the Kansas City Chiefs, and “Chiefs’ Superfan” Taylor Swift on their second consecutive Lombardi Trophy and third in five seasons. As almost everyone in sleep-deprived America knows by now, KC outlasted the SF 49ers in yesterday’s Super Bowl ending with a thrilling overtime finish 25-22!

For everyone else, including my Green Bay Packers, it’s “wait till next season!”😎

🇺🇸 Due Process Forever!

PWS

02-12-24

⚖️ SUPREMES TOSS GOP AGS’ EFFORTS TO OVERRULE IMMIGRATION POLICIES, ON STANDING GROUNDS — U.S. v. Texas — A Look Back At Prosecutorial Discretion (“PD”) Over Five Decades — GOP’s Nativist “Open Borders BS” Continues To Dominate Political Debate! 🤯🏴‍☠️

Jhttps://www.politico.com/news/2023/06/23/supreme-court-states-cant-sue-over-bidens-immigration-policies-00103417

Josh Gerstein reports for Politico:

States can’t use the federal courts to try to force the federal government to arrest and deport more people who are in the country illegally, the Supreme Court ruled Friday.

The 8-1 decision could cut down on a flood of lawsuits recent administrations have faced from state attorneys general and governors who disagree with Washington on immigration and crime policy.

The high court’s ruling found that Texas and Louisiana lacked standing to pursue litigation challenging immigration enforcement priorities established by President Joe Biden’s administration soon after he took office.

It’s the second decision in eight days in which the Supreme Court has rejected lawsuits from Texas on standing grounds. Last week, the court ruled that the state did not have standing to challenge a federal law that gives preferences to Native American families in the adoptions of Native children.

State standing is a key question in another major issue still awaiting decision from the court in the coming days: the legality of Biden’s decision to wipe out billions of dollars in student debt.

Six states are challenging the debt-relief plan, but it’s not clear if the states have suffered the sort of concrete harm that is typically necessary to challenge a policy in court. (In a separate case, two student-loan borrowers who oppose the plan are also suing. Their legal standing is also contested.)

In the immigration case, critics of the states’ approach said their claim of likely financial injury from unwarranted release of undocumented migrants was murky. But the court’s majority opinion written, by Justice Brett Kavanaugh, took a different tack and said the case was flawed because of a general principle against suits trying to force the executive branch to enforce the law against someone else.

“This Court has consistently recognized that federal courts are generally not the proper forum for resolving claims that the Executive Branch should make more arrests or bring more prosecutions,” Kavanaugh wrote, in an opinion joined by Chief Justice John Roberts and the court’s three liberals. “If the Court green-lighted this suit, we could anticipate complaints in future years about alleged Executive Branch under-enforcement of any similarly worded laws — whether they be drug laws, gun laws, obstruction of justice laws, or the like. We decline to start the Federal Judiciary down that uncharted path.”

. . . .

********************

Read Josh’s complete article at the above link. The aptly titled case is United States v. Texas, and here’s a link to the full opinion: https://www.supremecourt.gov/opinions/22pdf/22-58_i425.pdf

I suppose whether you “like” or “hate” this decision depends on who is in power and what you think about them. As my friend and immigration commentator Nolan Rappaport told me, immigrants’ rights advocates might cheer this decision today, but will not be happy if Trump is elected and they can no longer team up with Democrat State AGs to challenge alleged abuses of prosecutorial authority by Trump’s Administration.

Recognizing Nolan’s point that the “sword cuts both ways,” I think this is the correct result. Perhaps, that’s because it’s a derivation of a long line of cases on prosecutorial discretion that we often successfully invoked during my time in the “Legacy INS” OGC. Also, it seems correct from a “separation of powers” standpoint.

One of the cases that the Court relied upon is Linda R. S. v. Richard D., 410 U. S. 614 (1973). Interestingly, that case, then relatively recently decided, was one of the many I cited in the July 15, 1976 opinion that I drafted for then General Counsel Sam Bernsen approving the INS’s use of prosecutorial discretion. See https://immigrationcourtside.com/wp-content/uploads/2018/02/Bernsen-Memo-service-exercise-pd.pdf.

Prosecutorial discretion was also an issue at the heart of the immigration case of John Lennon, which was recently in the news again because of the death of his legendary immigration counsel, Leon Wildes. See, e.g., https://immigrationcourtside.com/2024/01/09/😇-obit-leon-wildes-90-legendary-immigration-lawyer-educator-a-fond-remembrance-appreciation-from-careen-shannon-🗽/.

The “Bernsen opinion” (FN 8) cited the various Lennon cases and made reference to Leon’s article in Interpreter Releases (1976) on the topic.

After five decades of working in the immigration field in different positions and different levels, I think it’s always interesting how things from my “early career” still have relevance today!

U.S. v. Texas could also spell bad news for Texas GOP insurrectionists Gov. Greg Abbott and AG Ken Paxton in their lawless attempts to impede the U.S. Border Patrol enforcement at the border. See, e.g., https://www.cnn.com/2024/01/17/us/texas-border-patrol-us-mexico?cid=ios_app.

Indeed, although you wouldn’t know it from the mainstream media and the “alternate universe debate” now going on in Congress, the GOP claims of “open borders” and lack of immigration enforcement are total BS. In fact, the Biden Administration has far “out-deported” and “out-enforced” the Trump Administration. See, e.g., https://amsterdamnews.com/news/2024/01/03/deportation-numbers-under-biden-surpass-trumps-record/.

As experts and those who actually work with migrants at the border know, “enforcement only” doesn’t work at the border or anywhere else, although it does fuel political movements and powerful corporate interests. See, e.g., .https://open.substack.com/pub/theborderchronicle/p/prepare-yourselves-for-the-2024-border?r=1se78m&utm_medium=ios&utm_campaign=post. But, truth, rationality, humanity, expertise, and the rule of law are largely absent from today’s one-sided immigration discussions. That doesn’t bode well for the future of our nation or the world.

🇺🇸 Due Process Forever!

PWS

01-18-24

😇 OBIT: LEON WILDES, 90, LEGENDARY IMMIGRATION LAWYER & EDUCATOR — A Fond Remembrance & Appreciation From Careen Shannon! 🗽

Careen writes on her blog:

https://lnkd.in/gRRXvq5p

One day in 2003, I got a call from an acquaintance — the mother of one of my daughter’s middle school classmates — who happened to be the Vice Dean of Cardozo Law School, part of Yeshiva University in New York City. She knew that I was a practicing immigration lawyer with a major immigration law firm, so she was wondering: would I be interested in teaching a course in Immigration Law at Cardozo?

It turned out that Leon Wildes, founder of the esteemed immigration law firm Wildes & Weinberg, PC, and most famous for his representation of John Lennon, had been teaching Immigration Law at Cardozo for many years. But at the age of 70, he was ready to slow down a bit, and teach only one semester per year instead of two semesters. I was asked if I would be willing to teach the class during the spring semester. Leon would continue to teach the fall semester course, as well as oversee an externship program through which he placed students for a semester with nonprofit legal services organizations representing immigrant clients.

I eagerly said yes, and was given the freedom to design my own syllabus and curriculum. I taught the basic doctrinal course in Immigration Law at Cardozo from 2004 through 2011. Then Leon decided to step down from teaching completely. His son, Michael Wildes, an esteemed immigration attorney in his own right, took over the class, and I segued into running the externship program, which I turned into a full-fledged field clinic with a weekly seminar where we did case rounds and focused on different substantive topics each week — both legal topics such as deportation or different visa types, and practice-oriented issues such as how to interview clients who have suffered severe trauma. I continued to run the Immigration Law Field Clinic at Cardozo Law School until 2015.

Now Leon Wildes has passed on, at the age of 90. He leaves behind an incredible legacy as one of the grand old men of the immigration bar. And that story about John Lennon? It’s worth reading.

Photo from the Wildes & Weinberg, PC website.

Because of Lennon’s affiliation with the Left and his ability to rally young people (during the first presidential election when 18- to 20-year-olds could vote), Richard Nixon considered Lennon to be a threat to his reelection in 1972 and wanted him deported. In defending Lennon against deportation, Leon Wildes — who was so conventional that he purportedly didn’t even know who John Lennon was before he took him on as a client — managed to uncover the then-secret practice (then called the “non-priority program”) within the then-Immigration and Naturalization Service (INS) of exercising prosecutorial discretion not to deport certain otherwise deportable individuals.

Wildes’ advocacy led John Lennon and Yoko Ono to succeed in their fight against deportation and enabled them to obtain permanent residence. Moreover, Wildes’ unmasking of the INS’s ability to exercise prosecutorial discretion paved the way for the Obama Administration to later create a policy allowing young people brought to the United States as children — the so-called “Dreamers” — to remain in the United States under the Deferred Action for Childhood Arrivals (DACA) program.

Read the story of Leon Wildes’ representation of John Lennon in his first-person account, “Not Just Any Immigration Case,” reprinted on the Wildes & Weinberg website from the Benjamin N. Cardozo School of Law Alumni Review.

RIP Leon Wildes. May his memory be a blessing

Careen Shannon
Senior Counsel (formerly Partner) Fragomen, Del Rey, Bernsen & Loewy, LLP Executive Producer
“Las Abogadas: Attorneys on the Front Lines of the Migrant Crisis.”
Photo: Think Immigration

**************************

Thanks, Careen! Lot’s of “good historical stuff” on the Lennon case on the Wildes & Weinberg PC website: https://www.wildeslaw.com/

I drafted the BIA decision in Lennon that was reversed by the late Chief Judge Irving Kaufman and the 2d Circuit. Leon argued the case before the BIA.

Another legend, the late Vinnie Schiano (who, according to my Round Table colleague and immigration historian Hon. “Sir Jeffrey” Chase, claimed to have been a co-inventor of the “Master Calendar”) argued for the “Legacy” INS. At that time, the BIA counted immigration “gurus” Chairman Maury Roberts and Louisa Wilson among its five members.

I ran into Leon at a number of AILA functions over the years. I think he was friendly with Maury Roberts and the late Sam Bernsen, two of my “mentors.”

Leon was a gentleman, scholar, and educator, widely respected by those in Government and private practice.

May he rest in peace after a life well-lived!

🇺🇸 Due Process Forever!

PWS

01-09-24

😭A LAWYER’S LAMENT FROM TSUI YEE: “Oh, For The Good Old Days Of Public Service & Positive Personal Contact With The Immigration Bureaucracy!”

Tsui H. Yee, Esquire
Law Offices of Tsui H. Yee, PC
New York, NY
PHOTO: Linkedin

From LinkedIn:

The longer I have been practicing immigration law, the more I long for ‘the good old days.’

I remember being able to call the Vermont Service Center, and being able to speak to an immigration officer to go over issues on a case. These officers were friendly, knowledgeable, and willing to help resolve issues. They were not adversarial or looking for ways to deny your client’s petition or application. In fact, a few of these officers would give me their home phone to call them, because some of them worked from home during the work week.

I remember when NVC was super-efficient, organized and a pleasure to deal with. Yes, there was a time when NVC actually knew what they were doing and were responsive. I went on a tour to visit NVC’s offices in Portsmouth, NH, and the NVC staff who led the tour were completely transparent about their process.

I remember being able to walk into the local USCIS office, and speak to a supervisor in person about a problem. For example, if USCIS denied an application in error, it was possible to convince the supervisor to reopen the denied case with proof that USCIS’ denial was incorrect. This is known as a “Service motion” and if granted, USCIS would not require the motion to reopen / reconsider filing fee because it was their own mistake.

Nowadays, none of the above would be possible. The immigration government agencies have removed themselves almost completely from having to deal with the public, which makes an immigration attorney’s job all that more challenging. Sadly, USCIS and NVC are really out of touch with the hurdles that attorneys and clients face in navigating an extremely complex area of law.

#immigration #USCIS #NVC #governmentaccountability #immigrationlawyer

***********************

Thanks, Tsui!

Very true and perceptive! Public service seems to be an afterthought these days. The Trump Administration actually took it out of USCIS’s mission statement! And, they squandered funds that were supposed to be spent on timely, professional adjudications and wasted it on a variety of bogus enforcement gimmicks designed to discourage the public from applying for ANY immigration benefit!

The Biden Administration has tried to make some improvements. For example, USCIS just announced a new system for scheduling appointments. But, there is still a long, long way to go!

Some of the comments on Tsui’s post on Linkedin are making me almost nostalgic for my days in the “Legacy INS” in the 1970’s and 80’s. It could be a strange place. (My good friend and colleague Joanna London used to say, “Truth is stranger than fiction. And INS is stranger than truth.”)

But, there definitely were human connections, efforts to solve problems, and institutional/legal knowledge there that seem to be largely missing from today’s DHS and DOJ/EOIR. Certainly, the “INS years” were the formative ones in my legal career.

I know there are some very good folks at DHS and EOIR now. But, they seem to be hidden from the public and largely inaccessible. I learned tons from individuals like Maury Roberts, Charlie Gordon, Louisa Wilson, Sam Bernsen, Ralph Farb, “Iron Mike” Inman, Doris Meissner, Leon Ulman, Dick Scully, James P. “Phil” Morris, Sol Isenstein, Andy Carmichael, Neil Leary, Hugh Brien, Irv Appleman, Charlie McCarthy, Glen Bertness, (fellow Wisconsinite) Roger “Buck” Brandemuehl, “Cousin Bob” Schmidt, et al. Can’t think of many folks of that stature in today’s rather bloated and largely faceless immigration bureaucracy.

During my days in private practice, I remember a Service Center adjudicator calling to tell me we had inadvertently overpaid the filing fee, rather than “rejecting” the application and returning it to us by mail. Another time, an adjudicator called with a request for an additional document, saying the application was so obviously carefully and thoughtfully prepared and indexed that he saw no point in returning it with a “deficiency notice.” Can’t see those types of personal touches, which actually promoted efficiency, happening today.

Even EOIR, which used to be the “human face of American justice” (for better or worse), has now moved largely to televideo hearings, e-filing, and “remote adjudication centers” masquerading as “courts.” There are pros and cons to these moves. Certainly, many of us have been calling for e-filing for years; a number of attorneys I have talked with appreciate the convenience and flexibility provided by televideo hearings. So, it’s a mixed bag.

I will say that having done thousands of both televideo and in person hearings over my years on the bench, I always found in person hearings easier to conduct and more conducive to justice. I also enjoyed and benefitted from consistent professional relationships with the Arlington private bar and the Arlington Chief Counsel’s Office, something that has been largely lost with the advent of adjudication centers removed from the public and the unilateral decision by ICE to only “selectively participate” in Immigration Court litigation. (Just today, “Arlington Court Alum” Nicole Lillibridge Radakovich, now an attorney on the staff of the Federal Law Enforcement Training Center in Brunswick, Georgia (where I used to teach on an occasional basis during my “Legacy INS” days) “reconnected” with me through Linkedin!)

I used to view my “courtroom as a classroom” where we were all learning and improving case-by-case. I wonder if that era has passed at today’s EOIR?

Tsui’s post also reminds me of one of my first published “separate opinions” during my tenure as BIA Chair. Matter of Ponce De Leon, 22 I&N Dec. 154, 159 (BIA 1996, 1997; AG 1997) (Schmidt, Chairman, concurring). It was immediately dubbed “The Chairman’s Lament” by my BIA colleague the late Judge Fred W. Vacca. Turned out to be one of many to follow!

🇺🇸Due Process Forever!

PWS

08-22-23

⚖️👏😎 BREAKING: SUPREME RELIEF: Court Reaffirms Executive’s Authority To Set Sane Immigration Enforcement Policies! — “Standing” Key! — Baseless Attacks By GOP In Texas & Louisiana Thwarted (For Now) — 8-1 Win For Administration, Opinion by Justice Kavanaugh, 3 Concurring, Alito Lone Dissenter! — U.S. v. Texas

Here’s a copy of the full decision:

https://www.supremecourt.gov/opinions/22pdf/22-58_i425.pdf

Here’s the syllabus (NOT part of the decision):

UNITED STATES ET AL. v. TEXAS ET AL. CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 22–58. Argued November 29, 2022—Decided June 23, 2023

In 2021, the Secretary of Homeland Security promulgated new immigra- tion-enforcement guidelines (Guidelines for the Enforcement of Civil Immigration Law) that prioritize the arrest and removal from the United States of noncitizens who are suspected terrorists or dangerous criminals or who have unlawfully entered the country only recently, for example. The States of Texas and Louisiana claim that the Guide- lines contravene two federal statutes that they read to require the ar- rest of certain noncitizens upon their release from prison (8 U. S. C. §1226(c)) or entry of a final order of removal (§1231(a)(2)). The District Court found that the States would incur costs due to the Executive’s failure to comply with those alleged statutory mandates, and that the States had standing to sue based on those costs. On the merits, the District Court found the Guidelines unlawful and vacated them. The Fifth Circuit declined to stay the District Court’s judgment, and this Court granted certiorari before judgment.

Held: Texas and Louisiana lack Article III standing to challenge the Guidelines. Pp. 3–14.

(a) Under Article III, a plaintiff must have standing to sue. This bedrock constitutional requirement has its roots in the separation of powers. So the threshold question here is whether the States have standing to maintain this suit. Based on this Court’s precedents and longstanding historical practice, the answer is no.

To establish standing, a plaintiff must show an injury in fact caused by the defendant and redressable by a court order. The District Court found that the States would incur additional costs due to the chal- lenged arrest policy. And monetary costs are an injury. But this Court has stressed that the alleged injury must also “be legally and judicially cognizable.” Raines v. Byrd, 521 U. S. 811, 819. That requires that

2

UNITED STATES v. TEXAS Syllabus

the dispute is “traditionally thought to be capable of resolution through the judicial process.” Ibid. Here, the States cite no precedent, history, or tradition of federal courts entertaining lawsuits of this kind. On the contrary, this Court has previously ruled that a plaintiff lacks standing to bring such a suit “when he himself is neither prosecuted nor threatened with prosecution.” See Linda R. S. v. Richard D., 410 U. S. 614, 619. The Linda R. S. Article III standing principle remains the law today, and the States have pointed to no case or historical prac- tice holding otherwise. Pp. 3–6.

(b) There are good reasons why federal courts have not traditionally entertained lawsuits of this kind. For one, when the Executive Branch elects not to arrest or prosecute, it does not exercise coercive power over an individual’s liberty or property, and thus does not infringe upon interests that courts often are called upon to protect. Moreover, such lawsuits run up against the Executive’s Article II authority to decide “how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.” TransUnion LLC v. Ramirez, 594 U. S. ___, ___. The principle of Executive Branch enforcement dis- cretion over arrests and prosecutions extends to the immigration con- text. Courts also generally lack meaningful standards for assessing the propriety of enforcement choices in this area, which are invariably affected by resource constraints and regularly changing public-safety and public-welfare needs. That is why this Court has recognized that federal courts are generally not the proper forum for resolving claims that the Executive Branch should make more arrests or bring more prosecutions. Pp. 6–9.

(c) This holding does not suggest that federal courts may never en- tertain cases involving the Executive Branch’s alleged failure to make more arrests or bring more prosecutions. First, the Court has adjudi- cated selective-prosecution claims under the Equal Protection Clause in which a plaintiff typically seeks to prevent his or her own prosecu- tion. Second, the standing analysis might differ when Congress ele- vates de facto injuries to the status of legally cognizable injuries re- dressable by a federal court. Third, the standing calculus might change if the Executive Branch wholly abandoned its statutory respon- sibilities to make arrests or bring prosecutions. Fourth, a challenge to an Executive Branch policy that involves both arrest or prosecution priorities and the provision of legal benefits or legal status could lead to a different standing analysis. Fifth, policies governing the contin- ued detention of noncitizens who have already been arrested arguably might raise a different standing question than arrest or prosecution policies. But this case presents none of those scenarios. Pp. 9–12.

(d) The discrete standing question raised by this case rarely arises because federal statutes that purport to require the Executive Branch

Cite as: 599 U. S. ____ (2023) 3 Syllabus

to make arrests or bring prosecutions are rare. This case is different from those in which the Federal Judiciary decides justiciable cases in- volving statutory requirements or prohibitions on the Executive, be- cause it implicates the Executive Branch’s enforcement discretion and raises the distinct question of whether the Federal Judiciary may in effect order the Executive Branch to take enforcement actions. The Court’s decision does not indicate any view on whether the Executive is complying with its statutory obligations. Nor does the Court’s nar- row holding signal any change in the balance of powers between Con- gress and the Executive. Pp. 12–14.

606 F. Supp. 3d 437, reversed.

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and JACKSON, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and BAR- RETT, JJ., joined. BARRETT, J., filed an opinion concurring in the judg- ment, in which GORSUCH, J., joined. ALITO, J., filed a dissenting opinion.

Key quotes from Justice Kavanaugh’s majority opinion:

In short, this Court’s precedents and longstanding

historical practice establish that the States’ suit here is not the kind redressable by a federal court.

B

Several good reasons explain why, as Linda R. S. held, federal courts have not traditionally entertained lawsuits of this kind.

To begin with, when the Executive Branch elects not to arrest or prosecute, it does not exercise coercive power over an individual’s liberty or property, and thus does not infringe upon interests that courts often are called upon to protect. See Lujan, 504 U. S., at 561–562. And for standing purposes, the absence of coercive power over the plaintiff makes a difference: When “a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed” to establish standing. Id., at 562 (emphasis deleted).2

Moreover, lawsuits alleging that the Executive Branch has made an insufficient number of arrests or brought an insufficient number of prosecutions run up against the Executive’s Article II authority to enforce federal law. Article II of the Constitution assigns the “executive Power” to the President and provides that the President “shall take Care that the Laws be faithfully executed.” U. S. Const., Art. II, §1, cl. 1; §3. Under Article II, the Executive Branch possesses authority to decide “how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.” TransUnion LLC, 594 U. S., at ___ (slip op., at 13); see Lujan, 504 U. S., at 576–578; Allen, 468

——————

2 By contrast, when “the plaintiff is himself an object of the action (or

forgone action) at issue,” “there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.” Lujan, 504 U. S., at 561–562.

Cite as: 599 U. S. ____ (2023) 7

Opinion of the Court

U.S., at 760–761. The Executive Branch—not the Judiciary—makes arrests and prosecutes offenses on behalf of the United States. See United States v. Nixon, 418 U. S. 683, 693 (1974) (“the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case”); Printz v. United States, 521 U. S. 898, 922–923 (1997) (Brady Act provisions held unconstitutional because, among other things, they transferred power to execute federal law to state officials); United States v. Armstrong, 517 U. S. 456, 464 (1996) (decisions about enforcement of “the Nation’s criminal laws” lie within the “special province of the Executive” (internal quotation marks omitted)); Buckley v. Valeo, 424 U. S. 1, 138 (1976) (“A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed’” (quoting U.S. Const., Art. II, §3)); see also United States v. Cox, 342 F. 2d 167, 171 (CA5 1965).

That principle of enforcement discretion over arrests and prosecutions extends to the immigration context, where the Court has stressed that the Executive’s enforcement discretion implicates not only “normal domestic law enforcement priorities” but also “foreign-policy objectives.” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 490–491 (1999). In line with those principles, this Court has declared that the Executive Branch also retains discretion over whether to remove a noncitizen from the United States. Arizona v. United States, 567 U. S. 387, 396 (2012) (“Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all”).

In addition to the Article II problems raised by judicial review of the Executive Branch’s arrest and prosecution policies, courts generally lack meaningful standards for assessing the propriety of enforcement choices in this area. After all, the Executive Branch must prioritize its

8 UNITED STATES v. TEXAS Opinion of the Court

enforcement efforts. See Wayte v. United States, 470 U. S. 598, 607–608 (1985). That is because the Executive Branch (i) invariably lacks the resources to arrest and prosecute every violator of every law and (ii) must constantly react and adjust to the ever-shifting public-safety and public- welfare needs of the American people.

This case illustrates the point. As the District Court found, the Executive Branch does not possess the resources necessary to arrest or remove all of the noncitizens covered by §1226(c) and §1231(a)(2). That reality is not an anomaly—it is a constant. For the last 27 years since §1226(c) and §1231(a)(2) were enacted in their current form, all five Presidential administrations have determined that resource constraints necessitated prioritization in making immigration arrests.

In light of inevitable resource constraints and regularly changing public-safety and public-welfare needs, the Executive Branch must balance many factors when devising arrest and prosecution policies. That complicated balancing process in turn leaves courts without meaningful standards for assessing those policies. Cf. Heckler v. Chaney, 470 U. S. 821, 830–832 (1985); Lincoln v. Vigil, 508 U. S. 182, 190–192 (1993). Therefore, in both Article III cases and Administrative Procedure Act cases, this Court has consistently recognized that federal courts are generally not the proper forum for resolving claims that the Executive Branch should make more arrests or bring more prosecutions. See Linda R. S., 410 U. S., at 619; cf. Heckler, 470 U. S., at 831 (recognizing the “general unsuitability for judicial review of agency decisions to refuse enforcement”); ICC v. Locomotive Engineers, 482 U. S. 270, 283 (1987) (“it is entirely clear that the refusal to prosecute cannot be the subject of judicial review”).3

——————

3 Also, the plaintiffs here are States, and federal courts must remain

mindful of bedrock Article III constraints in cases brought by States

Cite as: 599 U. S. ____ (2023) 9

Opinion of the Court

All of those considerations help explain why federal courts have not traditionally entertained lawsuits of this kind. By concluding that Texas and Louisiana lack standing here, we abide by and reinforce the proper role of the Federal Judiciary under Article III. The States’ novel standing argument, if accepted, would entail expansive judicial direction of the Department’s arrest policies. If the Court green-lighted this suit, we could anticipate complaints in future years about alleged Executive Branch under-enforcement of any similarly worded laws—whether they be drug laws, gun laws, obstruction of justice laws, or the like. We decline to start the Federal Judiciary down that uncharted path. Our constitutional system of separation of powers “contemplates a more restricted role for Article III courts.” Raines, 521 U. S., at 828.

C

In holding that Texas and Louisiana lack standing, we do not suggest that federal courts may never entertain cases involving the Executive Branch’s alleged failure to make more arrests or bring more prosecutions.

First, the Court has adjudicated selective-prosecution claims under the Equal Protection Clause. In those cases, however, a party typically seeks to prevent his or her own prosecution, not to mandate additional prosecutions

——————

against an executive agency or officer. To be sure, States sometimes have standing to sue the United States or an executive agency or officer. See, e.g., New York v. United States, 505 U. S. 144 (1992). But in our system of dual federal and state sovereignty, federal policies frequently generate indirect effects on state revenues or state spending. And when a State asserts, for example, that a federal law has produced only those kinds of indirect effects, the State’s claim for standing can become more attenuated. See Massachusetts v. Laird, 400 U. S. 886 (1970); Florida v. Mellon, 273 U. S. 12, 16–18 (1927); cf. Lujan, 504 U. S., at 561–562. In short, none of the various theories of standing asserted by the States in this case overcomes the fundamental Article III problem with this lawsuit.

10 UNITED STATES v. TEXAS Opinion of the Court

against other possible defendants. See, e.g., Wayte, 470 U. S., at 604; Armstrong, 517 U. S., at 459, 463.

Second, as the Solicitor General points out, the standing analysis might differ when Congress elevates defacto injuries to the status of legally cognizable injuries redressable by a federal court. See Brief for Petitioners 20, n. 3; cf. TransUnion LLC, 594 U. S., at ___–___ (slip op., at 10–11); Federal Election Comm’n v. Akins, 524 U. S. 11, 20 (1998); Raines, 521 U. S., at 820, n. 3; Lujan, 504 U. S., at 578; Linda R. S., 410 U. S., at 617, n. 3. For example, Congress might (i) specifically authorize suits against the Executive Branch by a defined set of plaintiffs who have suffered concrete harms from executive under-enforcement and (ii) specifically authorize the Judiciary to enter appropriate orders requiring additional arrests or prosecutions by the Executive Branch.

Here, however, the relevant statutes do not supply such specific authorization. The statutes, even under the States’ own reading, simply say that the Department “shall” arrest certain noncitizens. Given the “deep-rooted nature of law- enforcement discretion,” a purported statutory arrest mandate, without more, does not entitle any particular plaintiff to enforce that mandate in federal court. Castle Rock, 545 U. S., at 761, 764–765, 767, n. 13; cf. Heckler, 470 U. S., at 835. For an arrest mandate to be enforceable in federal court, we would need at least a “stronger indication” from Congress that judicial review of enforcement discretion is appropriate—for example, specific authorization for particular plaintiffs to sue and for federal courts to order more arrests or prosecutions by the Executive. Castle Rock, 545 U. S., at 761. We do not take a position on whether such a statute would suffice for Article III purposes; our only point is that no such statute is present in this case.4

——————

4 As the Solicitor General noted, those kinds of statutes, by infringing

Cite as: 599 U. S. ____ (2023) 11 Opinion of the Court

Third, the standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions. Under the Administrative Procedure Act, a plaintiff arguably could obtain review of agency non-enforcement if an agency “has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” Heckler, 470 U. S., at 833, n. 4 (internal quotation marks omitted); see id., at 839 (Brennan, J., concurring); cf. 5 U. S. C. §706(1). So too, an extreme case of non-enforcement arguably could exceed the bounds of enforcement discretion and support Article III standing. But the States have not advanced a Heckler-style “abdication” argument in this case or argued that the Executive has entirely ceased enforcing the relevant statutes. Therefore, we do not analyze the standing ramifications of such a hypothetical scenario.

Fourth, a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis. That is because the challenged policy might implicate more than simply the Executive’s traditional enforcement discretion. Cf. Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___, ___–___ (2020) (slip op., at 11–12) (benefits such as work authorization and Medicare eligibility accompanied by non- enforcement meant that the policy was “more than simply a non-enforcement policy”); Texas v. United States, 809 F. 3d 134, 154 (CA5 2015) (Linda R. S. “concerned only nonprosecution,” which is distinct from “both nonprosecution and the conferral of benefits”), aff ’d by an equally divided Court, 579 U. S. 547 (2016). Again, we need

——————

on the Executive’s enforcement discretion, could also raise Article II issues. See Tr. of Oral Arg. 24–25.

12 UNITED STATES v. TEXAS Opinion of the Court

not resolve the Article III consequences of such a policy. Fifth, policies governing the continued detention of noncitizens who have already been arrested arguably might raise a different standing question than arrest or prosecution policies. Cf. Biden v. Texas, 597 U. S. ___ (2022). But this case does not concern a detention policy, so

we do not address the issue here.5

***************************************

Given the narrow resolution on standing grounds, and the reservations set forth in Section C of Justice Kavanaugh’s opinion, in addition to the somewhat different approach of the three concurring Justices, Gorsuch, Thomas, and Barrett, it’s unpredictable what this decision might mean if the DACA challenge now pending before U.S. District Judge Hanen eventually reaches the Supremes. In “point four” of “Section C,” Justice Kavanaugh goes to some length to distinguish a situation “that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status,” citing the Court’s earlier decision in DHS v. Regents, involving a DACA challenge that was decided on APA technical grounds.

Still, this is a strong statement rejecting the attempt of GOP States and GOP lower Federal Court Judges to take over Federal immigration enforcement! And, with Immigration Courts overwhelmed with a largely artificially-inflated 2 million case backlog, many consisting of cases in which relief should be granted elsewhere (like at USCIS) or where removal would actually be detrimental to the interests of the U.S., a reaffirmation of the Executive’s historical authority to set reasonable, practical immigration enforcement priorities could not come soon enough.

In that light, it’s curious why in a case where the ultimate result was lopsided, the Court DENIED the Administration’s motion for a stay pending review of the Fifth Circuit’s and USDC’s wrong orders! This unnecessarily created months of “enforcement chaos” which has been damaging both to individuals and to our national interests.

I also find it interesting that Justice Kavanaugh cited and in part relied upon the Executive’s Article II authority to enforce the law. This was also part of the rationale I used in a 1976 legal opinion written for then General Counsel Sam Bernsen reaffirming the “Legacy” INS’s authority to exercise prosecutorial discretion in designating some cases as “non priority.”

That memo stated:

The ultimate source for the exercise of prosecutorial discretion in the Federal Government is the power of the President. Under Article II, Section 1 of the Constitution, the executive power is vested in the President. Article II, Section 3, states that the President “shall take care that the laws be faithfully executed.”

. . . .

The reasons for the exercise of prosecutorial discretion are both practical and humanitarian. There simply are not enough resources to enforce all of the laws and regulations presently on the books. As a practical matter, therefore, law enforcement officials have to make policy choices as to the most effective and desirable way in which to deploy their limited resources. Thus, for example, police and prosecutors may choose to concentrate on apprehension and prosecution of perpetrators of violent crimes, while choosing not to proceed against those committing so-called “victimless crimes,” such as certain consensual sex acts and possession of small amounts of marihuana. In addition, there are times when defects in the quality, quantity, or method of gathering evidence will make it difficult to prove the matter before a court.

Aside from purely practical considerations, it is also obvious that in enacting a statute the legislature cannot possibly contemplate all of the possible circumstances in which the statute may be applied. In some situations, application of the literal letter of the law would simply be unconscionable and would serve no useful purpose. For instance, a prosecutor may well decide not to proceed against a terminally ill individual, even in the presence of overwhelming evidence of guilt.

You can find a copy of that legal opinion here: https://wp.me/p8eeJm-260. Still relevant, after nearly half a century!

🇺🇸 Due Process Forever!

PWS

06-23-23

🇺🇸⚖️🗽🦸‍♀️🎖 AMERICAN HERO: REP. HILLARY SCHOLTEN (D-MI) WINS 2023 MICHAEL MAGGIO AWARD HONORING HER COMMITMENT TO JUSTICE FOR IMMIGRANTS! — Former EOIR Attorney’s Star Continues To Shine!

********************

I knew Michael as a friend, colleague, litigator, and sometimes worthy opponent from his days in law school until his untimely death in 2008! Michael’s wife, Candace Kattar, was actually a law student intern in the “Legacy INS” Office of General Counsel during the “Crosland/Schmidt Era” of the Carter Administration! Together they founded the highly-respected firm Maggio & Kattar.

Knowing both Michael and Hillary, I can’t think of a more deserving recipient for this prestigious honor. Congratulations, Hillary!!!😎👏

🇺🇸 Due Process Forever!

PWS

06-17-23

🇺🇸⚖️🗽😎👍🏼 SPEAKING OUT FOR TODAY’S IMMIGRANTS: “[T]he ‘us’ we see used to be one of ‘them.’ We were a gift to this country and they will be too,” says Francesco Isgro, President & CEO of Casa Italiana Sociocultural Center, Inc., & Editor-in-Chief of Voce Italia! 😎

Francesco Isgro, Esquire
President & CEO of Casa Italiana Sociocultural Center, Inc.
Editor-in-Chief,
Voce Italiana
PHOTO: Linkedin

*****************************

Thanks for speaking out so forcefully and articulately for some of the most vulnerable among us, Francesco, my long-time friend and former DOJ colleague! Your own continuing distinguished career in both the public and now private/NGO sectors is a testament to the irreplaceable contributions of generations of immigrants to our great nation!

I’m proud to say that Francesco started as a legal intern in the “Legacy INS” Office of General Counsel during my tenure as Deputy General Counsel. He was then selected to become a INS Trial Attorney (now known as ICE Assistant Chief Counsel) under the Attorney General’s Honors Program. He eventually went on to a stellar career as a Senior Litigator, editor, and “hands on” educator at the Office of Immigration Litigation (“OIL”) in the DOJ’s Civil Division.

I specifically remember two of Francesco’s innovative contributions while in the INS OGC: collecting, indexing, and publishing the legal opinions of the General Counsel (and Deputy General Counsel); and creating a Law Bulletin that our office could use to inform the scores of field attorneys nationwide under our supervision and direction. This later led to vastly improved attorney training programs developed by OGC Counsel Craig Raynsford, assisted by Fran Mooney (who later went on to become the Public Information Officer for EOIR while I was BIA Chair).

I remember being a guest lecturer in Francesco’s immigration class while he was teaching at Georgetown Law. He also went on to found and become Editor-in-Chief of OIL’s Immigration Litigation Bulletin, a highly-respected internal source of information and guidance for USG attorneys involved in immigration.

My experiences on the bench during 13 years at the (now “legacy’) Arlington Immigration Court mirrored Francesco’s observations. Those whom we were able to help regularize their status under the law were overwhelmingly hard-working individuals making important contributions got our nation and our economy. Many had been doing it for years, sometimes even decades, and had USC children and even grandchildren who were “living proof” of the contributions of families who are given a chance to succeed.

Often, the “next generations” were present in court. I both congratulated them and asked them never to forget and appreciate the risks and hardships their parents had undertaken so that they could fulfill their complete promise in a free society! “Building America, one case at a time,” as I used to quip to the attorneys involved on both sides.

Francesco’s “Christian social justice message,” and his references to Pope Francis and the history of U.S. immigration also harken to a message I heard recently from Villanova University President Rev. Peter Donohue and Professor Michele Pistone during a recent educational event at Villanova Law. In his remarks, Rev. Donahue traced the founding of Villanova University to the response of Augustinian Friars to the burning of St. Augustine’s Church in downtown Philly during the Nativist Riots of 1844!

Professor Pistone credited Christian social justice teaching and the inspiration of Pope Francis for contributing to her success at the Villanova Immigration Clinic as well as the founding of the VIISTA Villanova Program to provide more well-qualified non-attorney accredited representatives to serve those in immigration proceedings. The VIISTA graduates whom I met and worked with on litigation skills over the two day seminar/celebration were totally impressive and dedicated.

Thanks again Francesco, for writing this inspiring piece setting forth fundamental truth about American immigration! That some in America shamefully and stubbornly refuse to recognize this truth doesn’t make it any less true, nor does it lessen the necessity to act upon it in moving our nation and our world forward toward a better future.

🇺🇸 Due Process Forever!

PWS

05-10-23

🇺🇸🦸🏻‍♀️⚖️🗽👩🏻‍⚖️ PROFILE IN GREATNESS! — Kathleen Guthrie Woods Sits Down With One Of America’s Most Consequential Jurists, NDPA Hall-of-Famer 🥇 Judge (Ret.) Dana Leigh Marks On Leading & Inspiring From the Gritty Trenches Of American Justice & Her Exciting New Role As “NanaDana!” 🥰

Hon. Diana Leigh Marks — Hon. Dana Leigh (“NanaDana”) Marks
U.S. Immigration Judge (Ret.)
San Francisco Immigration Court
Past President, National Association of Immigration Judges; “Founding Mother of U.S. Asylum Law”

https://www.sfbar.org/sfam/q3-2022-unpacking-the-legacy-of-judge-dana-leigh-marks/

By the time she retired from San Francisco’s Immigration Court on December 31, 2021, Judge Dana Leigh Marks* had built an inspiring reputation as a leader, mentor, and advocate. She is known for her fierce advocacy for the court. She is known for her compassion and fairmindedness. She is known for her intelligence and wit, having coined oft-repeated, appropriate zingers that help people better understand the challenges of immigration court, including “Immigration judges do death penalty cases in a traffic court setting” and “Immigration is more complicated than tax law. How do I know this? Because there is no TurboTax for immigration law.”

Talking with her former colleagues—many of whom are now also her friends—is an uplifting experience. They speak of a woman who broke through barriers, applied the law fairly and compassionately, fought hard fights, and inspired others to join her. “She’s the GOAT of immigration judges!” declares Francisco Ugarte, Manager of the Immigration Defense Unit of San Francisco’s Public Defender’s Office.

Who is Judge Marks, and how did she positively influence and impact so many lives?

. . . .

Judge Marks also thrived in this arena because she saw beyond the expectation that her role was solely to facilitate deportations; she saw the humanity inherent in the proceedings. “Every story is individual,” she says, and every person deserves to be heard.

. . . .

“She showed us all how to be fierce advocates for justice—for what is true and right and just—without crossing over lines,” says Judge King. Jamil adds Judge Marks’s “tireless” work for the union and “giving a professional, female voice to immigration judges” to her list of accomplishments. “When she started, she was one of few women. After her, all these really amazing women came to the bench,” says Shugall, women Judge Marks mentored and encouraged to apply for the bench. That roster includes Judges Jamil, King, Miriam Hayward, Stockton, Webber, and Laura Ramirez. “She helped start that trajectory,” says Shugall.

“She helped create an inspiring model for how courts can be,” says Ugarte, and Judge Webber states, simply, “She inspires people all the time.”

“While she has had some limelight in her career, the vast majority of her work has been thankless,” says Judge King. “She perseveres solely because she believes it is important to make a difference wherever you can.”

*Today Judge Marks is known as “NanaDana,” a title that celebrates her role as caretaker for her granddaughter and helps people correctly pronounce her name (“dan-uh,” not “day-nuh”).

Kathleen Guthrie Woods is a long-time contributor to San Francisco Attorney magazine. She first interviewed Judge Marks, then-president of NAIJ, for “Understanding the Crisis in Our Immigration Courts” (Spring 2015).

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Every judge, lawyer, and law student in America, and particularly AG Garland and his lieutenants, should read Kathleen’s interview with Judge Marks (full version at link) about what “American judging” should, and could, be — all the way up to the Supremes!

Dana, my friend and colleague, your inspiring career is yet more evidence of the “then-available” talent who could have led long-overdue change at EOIR and the BIA. Like you, much of that talent has moved on to our Round Table, and we’re stuck with the dysfunctional mess at EOIR. But, others are arising in your image to fight for justice, sanity, and humanity from “the retail level on up” in our Federal Courts.

I will always think of you as the “Founding Mother of US Asylum Law” because of your stellar advocacy in Cardoza-Fonseca and your unending, unapologetic, and highly vocal commitment to due process, independent thinking, and judicial excellence.

As you probably remember, I was in Court for your OA in Cardoza-Fonseca, sitting at the SG’s table as you won the day for your client. My “client,” INS, “lost” that day. But, American justice, due process, and human rights won!

As it was for you and those many you inspired, “realizing the promise of Cardoza-Fonseca” became the “guiding light” of my subsequent judicial career at EOIR, on both the appellate and trial benches. Despite the more than quarter-century since Cardoza, the battle to make judges at all levels actually follow its dictates, and perhaps more importantly, its generous humanitarian spirit, is far from won!

Congrats on your new position as “NanaDana.” 😎 I always look forward to working with you and our amazing Round Table colleagues to give due process and fundamental fairness an unyielding voice before courts throughout America, and to continue the unending fight for best judicial practices in a life-determining system that has “lost its way” as millions needlessly suffer!”

We “Knightesses and Knights of our Round Table” 🛡⚔️ will “never let the bastards grind us down!” You continue to inspire all of us in our never ending quest for justice for the most vulnerable individuals among us!

Due Process Forever! 🗽😎⚖️👩🏻‍⚖️

Your friend & colleague, forever, ❤️

PWS

11-22-22

⚖️🪦 “REQUIEM FOR A HEAVYWEIGHT” — Farewell To The Arlington Immigration Court

Arlington Judges — It wasn’t “Camelot,” as you can clearly see from this picture taken on the day of my retirement, June 30, 2016. No “Arthurs, Guineveres, or Lancelots” in this shot! But, the Arlington Immigration Court did its best to bring a modicum of due process, fundamental fairness, justice, and respect to those passing before it. Not perfect, by any means. But I was glad to be there and be “part of the team” for 13 years!

⚖️🪦 “REQUIEM FOR A HEAVYWEIGHT” — Farewell To The Arlington Immigration Court

By Paul Wickham Schmidt

Courtside Exclusive

Nov. 7, 2022

It was my “professional home” for the final 13 years of my career, until I retired in 2016. The Arlington Immigration Court was “born in controversy” decades ago when the Immigration Courts abandoned the sole outpost in the District Colombia and moved across the Potomac River to Northern Virginia. For many years thereafter, its internal acronym remained “WAS,” and mail and record files intended for the Seattle Immigration Court in the “State of Washington” periodically were misrouted to WAS, and vice versa.

Over the years, it grew from a single Immigration Judge — the legendary trail-blazer Judge Joan Churchill — to a judicial cast in the double digits. It outgrew always-inadequate space several times, reaching “the final resting place” on Bell Street in National Landing (née “Crystal City”) in 2012. It was combined and uncombined with the nearby “Headquarters Immigration Court.” At various times, Arlington Judges had regular jurisdiction over such far-flung locations as Cleveland, Cincinnati, Buffalo, Puerto Rico, and the USVI!

To be sure, Arlington had its share of tragedies, scandals, screw-ups, and nonsense. When located in the misnamed “penthouse” — a/k/a the top floor of the Ballston Metro Center — there were NO PUBLIC RESTROOMS — undoubtedly a violation of various Federal and local rules and an act of gross inhumanity to mankind by the chronically inept “powers that be” at EOIR “Headquarters” in Falls Church. Obviously, there were also no “10-minute recesses,” as attorneys and clients — old, young, handicapped, mobile or immobile, fit or unfit — were required to take the elevator to the lobby and fan out to various coffee shops and restaurants in the neighborhood to seek “relief from injustice and inconsideration.”

But, I like to think that the cause of justice was sometimes served at Starbucks, in the corridors, the elevator lobby, or on the surrounding streets during these interludes. On some happy occasions, counsel returned from these “extended recesses”with joint solutions to the case that might not previously have occurred to them, or to me.

On several occasions, the Arlington Fire Marshals closed us down for overcrowding! Toward the end of of our tenancy at Ballston, I inherited the sole “courtroom with a window.” I sometimes quipped that by craning my neck, I could see all the phases of my EOIR career from there: my past (the notorious “EOIR Tower in Falls Church”); my present (the humanity before me in my courtroom); and my future (“The Jefferson” Retirement Home across the square).

But, Arlington also was a place of general and genuine camaraderie: Where judges, Government attorneys, private attorneys, interpreters, and staff worked together as a team to bring practical, efficient, justice to those individuals appearing before the court and the many beyond that whose lives and fates were tied up in theirs. Indeed, of the various places I worked and visited in EOIR, it most reflected the values that have always been important to me: Fairness, scholarship, timeliness, respect, and teamwork.

Those “Thursday Judicial Lunches” and the famous or infamous “Seersucker Thursdays” helped model the spirit of teamwork and camaraderie. Indeed, my judicial career ended on June 30, 2016 — not incidentally, my final “Seersucker Thursday.” (I did, however, “carry on the tradition when teaching at Georgetown Law each June thereafter — until COVID and the “Zoom-era” struck!)

It was also a “showcase court” — or as close an approximation of one as EOIR had at the time. Because of the location in the DMV area, a steady stream of politicos, senior managers, journalists, Congressional Committee staff, professors, DOJ attorneys, USCIS adjudicators, statisticians, demographers, and the like passed through Arlington’s cramped confines and sat on some of the world’s most uncomfortable pews (some interns actually brought “stadium cushions”) to observe the “real life drama” of Immigration Court.

Also, as then Chief Judge Michael Creppy accurately told me at the time of my 2003 reassignment, Arlington was a “teaching court.” Generations of outstanding student attorneys from local law school clinics, “Big Law” associates, and newly-minted immigration practitioners “learned the ropes” in our cramped and chronically over-or under-heated courtrooms. (Immigration Judges were deemed “not qualified” to adjust courtroom thermostats. We had to call on the Court Administrator or the Security Guard to exercise that higher-level responsibility. I actually used to get “joint oral motions” from counsel to raise my courtroom temperature when we were in Ballston!)

And, Arlington Judges were known for their willingness to engage in “educational dialogue” with the parties and observers at the conclusion of the case. Of course, the “merits” of cases were “off limits.” But, it was a terrific opportunity to share information about procedures, practices, and to convey “judicial expectations” to those eager to learn more. Memorably, Judge Wayne Iskra’s totally accurate and painfully obvious remark that “the system is broken” seemed to go above and beyond what our “handlers” in Falls Church deemed appropriate!

Notably, a large number of “Arlington alums” are now themselves in key positions, as judges, government officials, NGO leaders, law firm founders and partners, academics, scholarly commentators, or media figures. Arlington interns and judicial law clerks have also gone on to distinguish themselves. For better or worse, hopefully the former, Arlington had “influence” that went beyond its “utilitarian wannabe to shabby” physical confines.

It was also a place of hope. That might have been why for years we had a negligible “no show” rate for individual hearings. For a number of years, from 2010 to the “advent of Trump,’” it was among the “league leaders” in asylum grants and favorable outcomes for individuals. This was in an age where the overall system and many of the attitudes of DOJ politicos who had authority over the Immigration Courts were relatively unsympathetic to asylum seekers, particularly those arriving at our southern land border or by boat!

A “colorful cast of characters” passed through the Arlington bench. Some were “up and comers” — on their way to “fame and fortune” in the EOIR hierarchy or beyond.

Others of us were exiles or refugees from “The Tower” or Senior Executive positions elsewhere at so-called “Main Justice” or “other government agencies.” At various points during my 13-year tenure, the following were “in residence” at Arlington: former Acting Commissioner of the “Legacy INS;” former INS General Counsel; former BIA Chair; former BIA Members and “Temporary BIA Members;” former Acting INS General Counsel; former INS Deputy General Counsel; Former Principal Deputy Director, International Section of the DOJ; former Principal Deputy Chief Immigration Judge, two-time former Chief Trial Judge of the U.S. Army; former Acting Chief Immigration Judges; former Acting EOIR Director; former Assistant Chief Immigration Judges; former “Brooks Bros Rioter;” former Partner at Jones Day; former Managing Partner of the DC Office of Fragomen; past President of the National Association of Immigration Judges; founder and first President of the BIA Employees Union; former Chief Counsel to the Senate Subcommittee on Criminal Justice; (briefly) former EOIR General Counsel and Deputy General; former Associate Counsel at the White House Domestic Policy Council; former Assistant to the Deputy Attorney General; Adjunct Professor and former Adjunct Professors at Georgetown Law, George Mason Law, and UVA Law. That’s just what I can remember; I’m sure I’ve overlooked some. A few “legitimate celebs” passed through our doors, including Angela Jolie who was a witness in one case!

To be sure, those of us “on the way down the government food chain” or those voluntarily fleeing it far outnumbered those slated to move “up the ladder.” Of course, Arlington wasn’t above criticism. Too old, too White, too male, too many “bureaucratic retreads” to accurately reflect the diverse nature of both the “customers” and the legal community in the DMV area. I won’t deny that there was some validity to those observations.

But, we “were what we were” — the choices that led to our composition at any one time were “above our pay grade.” Heck, I didn’t even apply for the job!

I think all of us did our best to compensate for or “work around” our undoubted “blind spots.” Whether we were successful is for others to decide. As a group, regardless of gender, we all consciously tried to avoid the “grumpy old men” appellation attached to some Immigration Courts of that era.

On October 14, 2022, the Arlington Immigration Court passed into history. Its judges, staff, cases, and the lives they affect scattered, in a tidal wave of “Aimless Docket Reshuffling,” among the newly-established Sterling and Annandale Immigration Courts and the Falls Church and Richmond “Immigration Adjudication Centers.” The latter are apparently part of the current “vision “ of “migrating” EOIR back to its “INS roots” of yore by “emulating” the impersonality of USCIS “Service Centers” — while reportedly providing a level of “customer service” significantly below that which would make USCIS blush!

So, it’s a final farewell to Arlington. But, I will always remain grateful for the time I spent there, for the colleagues I worked with, for those who came before me and helped enlighten me in court, and for those whose lives and futures were entrusted to my care.

Due Process Forever!

PWS

11-07-22

🇺🇸⚖️IN MEMORIAM: Hon. David Crosland, Judge, Former Legacy INS Acting Commissioner, Civil Rights Activist, Private Practitioner, Professor, Dies At 85

IN MEMORIAM: Hon. David Crosland, Judge, Former Legacy INS Acting Commissioner & General Counsel, Civil Rights Activist, Private Practitioner, Professor, Dies At 85

By Paul Wickham Schmidt

Courtside Exclusive

August 1, 2022

Alexandria, VA. Along with many others, I am saddened to learn of the death, over the weekend, of my former “boss” and judicial colleague, Judge David Crosland of the Baltimore Immigration Court. He was 85.

First and foremost, David was a dedicated public servant. A graduate of Auburn University and the University of Alabama School of Law, David served in the Civil Rights Division of the US Department of Justice during the tense and dangerous days of the 1960s. That was a time when speaking out for justice for African Americans in the South could be a life-threatening proposition.

Among many difficult and meaningful assignments, he helped prosecute Klansmen in Mississippi and also was assigned to prosecutions arising out of racially motivated police and National Guard killings in Detroit in 1967-68. After leaving the DOJ, he became the Director of the Atlanta Lawyers’ Committee for Civil Rights Under Law.

At Auburn, David had studied Agriculture. He sometimes liked to regale Immigration Court interns with tales of his “days on the farm” during summers in college!

I first met Dave in 1977, when Judge Griffin Bell appointed him to be the General Counsel of the “Legacy INS.” Shortly thereafter, David selected me to be his Deputy General Counsel, thus initiating my career as a Government manager and executive. During the second half of the Carter Administration, Dave was the Acting Commissioner of Immigration, and I was the Acting General Counsel.

In those days, my hair was actually longer than Dave’s, a situation that would become reversed in later years as our respective careers progressed. Indeed, during his “ponytail and gold earring days” in private practice, I reminded him of the times in “GENCO” where he used to encourage me to “get a haircut.”

We went through lots of exciting times together including the Iranian Hostage Crisis, litigation involving Haitian asylum seekers, Nazi War Criminal prosecutions, the Mariel Boatlift, the creation of the Asylum Offices, and the beginnings of a major restructuring of the INS nationwide legal program that eventually brought all lawyers under the direct supervisory control of the General Counsel.

Following the 1980 election, Dave went into private practice and became a partner in Ober, Kaler, Grimes & Shriver and then Crosland, Strand, Freeman & Mayock. He rejoined Government in 1997, when Attorney General Janet Reno appointed him as an Immigration Judge in Otey Mesa, CA. He later became an Assistant Chief Immigration Judge for several courts, as well as a Temporary Member of the BIA.

Our paths crossed again when we both served on the bench at the Arlington Immigration Court, roughly between 2009 and 2014. Then, David returned to Baltimore to be closer to his son and his residence in Maryland. He also served at various times as an Adjunct Professor of Law at GW Law and UDC Law.

David was a “character,” for sure. He had his own way of doing things that wasn’t always “strictly by the book.” But, he cared about the job and the people, was kind to the staff, and kept at it years after most of his contemporaries, including me, had retired.

One of the most moving tributes to David is from a member of court administrative staff who worked with him for years:

We just learned that Judge Crosland passed away this weekend at the grand age of 85 years. No funeral requested by him as his last wishes. Please keep him and his family in prayer. He was an amazing man, had a brilliant career and he was a genuinely kind person, hardworking to the end. Judge Crosland was very good to me, and he would walk me to my car after the long work days that turned into nights. Always a true gentleman, he would make me his famous lemon ice box pie! God bless Judge Crosland.

Another fine tribute to David is this piece from his alma mater, the University of Alabama School of Law, when they honored him in 2014 for their “Profile in Service:” https://www.law.ua.edu/blog/news/law-school-selects-judge-david-crosland-as-2014-profile-in-service/.

My time with Dave at the “Legacy INS” will always be with me as one of the most exciting, sometimes frustrating, but highly rewarding and formative parts of my career. Rest In Peace ☮️ my friend and colleague. You will be missed.

🇺🇸Due Process Forever.

PWS

08-01-22

⚔️🛡 HON. “SIR JEFFREY” S. CHASE: TIME FOR A NEW APPROACH TO CHIEF IMMIGRATION JUDGE!👩🏽‍⚖️ WANTED: Practical Scholar/Dynamic Intellectual Leader/Fearless Independent Thinker! — PLUS, BONUS COVERAGE: MY “MINI-ESSAY” — “Why The Chief Immigration Judge & BIA Chair Must Be ‘Working Judges’ — No More ‘JINOS’ (‘Judges In Name Only’)!”

https://www.jeffreyschase.com/blog/2022/7/25/correcting-course

Blog Archive Press and Interviews Calendar Contact

Correcting Course?

On July 21, we were treated to the news that our nation’s immigration courts will no longer be run by a chief judge specifically installed by the prior administration as part of its plan to undermine those courts’ independence and fairness. The fact that this development took a year and a half to occur, evoked surprise, and was met with accusations of wrongdoing and threats to investigate from conservative corners that read as parody says a lot about the present state of those courts.

The Chief Immigration Judge should be in charge of the hiring and training of judges, and in setting policy for the courts. The holder of that title is the person most responsible for creating the environment in which the Immigration Courts function. Unfortunately, the choice to fill this position has too often been an afterthought. And the Trump Administration succeeded in stripping the office of pretty much all authority; one of its appointees was effectively reduced to internally disclaiming “it wasn’t my decision” in response to every controversial directive issued from his office.

It is therefore extremely important for the Biden Administration to give much thought to its next appointee, and in doing so, clearly define what the position is meant to be. And although that appointee serves at the will of the Attorney General, Merrick Garland, formerly a distinguished circuit court judge, is particularly qualified to understand the need for a strongly independent Chief Immigration Judge willing to push back against threats to due process. He should thus afford his choice for the position the authority to do just that. Because when courts fulfill their proper function of providing a fair reading of the law and protecting against government error and overreach, we all benefit.

It is important to note that no Chief Immigration Judge has been chosen from the ranks of immigration law scholars. I think this is partly because unlike their counterparts at the B.I.A., the Chief Immigration Judge is not actively involved in deciding cases; theirs is an administrative job. However, it is high time for that view to change. Now would be an ideal opportunity to appoint someone to the position who knows the law at least as well as the judges they will oversee.

Among other reasons, that degree of knowledge is necessary to allow a chief judge to differentiate between legitimate actions taken by judges based on their good faith interpretations of the law, and alternatively false justifications disguised as legal reasoning offered by those whose real goal is to carry out a particular agenda. The ability to clearly articulate the difference is needed to protect the former, eliminate the latter, and rebut the inevitable claims of political motivation in response to such actions.

As a brief recap, under the Trump Administration, we saw plenty of examples of improper political motive. For instance, the Immigration Courts issued not one but two broadsheets of anti-immigrant propaganda unironically titled “Myths vs. Facts” (in spite of being devoid of the latter). In addition, a highly respected Immigration Judge was wrongly chastised for correctly doing his job because his concern for the due process of the non-citizen was not shared by the then powers that be. As if that wasn’t bad enough, the judicial equivalent of a “hit man” was dispatched from D.C. to Philadelphia for the sole purpose of entering an order of deportation in that case, due process concerns be damned. The entire exercise was clearly intended as a message to other judges of the consequences of acting as anything other than a rubber stamp.

When in spite of such warnings, many Immigration Judges continued to grant asylum claims because the correct application of the law required it, the Trump Administration hired new and unqualified judges who would place loyalty to its nativist agenda above all. One of those hires had actually written a shockingly insulting article only months before his appointment, labeling as “rebels without a clue” all of his soon-to-be colleagues who had issued scholarly, well-reasoned opinions granting asylum to female victims of domestic violence. The author demonstrated what should have been a disqualifying lack of knowledge in broadly characterizing all such claims as falling outside the scope of our asylum laws, and in further accusing more learned judges who concluded otherwise of “grossly exceeding their authority” and engaging in a “gross violation of legal ethics.”

What was needed then was a Chief Immigration Judge willing to say “over my dead body” to these hirings and other abusive actions. It is greatly hoped that the next chief judge will possess both the integrity and authority to do just that, with the knowledge that higher-ups within the agency will stand behind their decisions.

And since we won’t always have a former Circuit Court judge serving as Attorney General, it might be worthwhile while we do to ask for regulations (or at least some form of guidance from above) clarifying what will henceforth be expected of those filling the position, and calling on all personnel within the Department of Justice to encourage and support the independence of their colleagues charged with carrying out judicial functions.

Copyright 2022 Jeffrey S. Chase. All rights reserved.

JULY 25, 2022

Reprinted by permission.

***************************

Very timely and “spot on,” Sir Jeffrey!

Why The Chief Immigration Judge & BIA Chair Must Be “Working Judges” — No More “JINOS” (“Judges In Name Only”)!

By Paul Wickham Schmidt

July 26, 2022

Time (actually “long past time”) for dynamic change! As Chief IJ, we need an “intellectual powerhouse” who is a nationally recognized expert in immigration, human rights, constitutional law, equal justice, racial justice, and an acknowledged, widely-respected intellectual leader with the guts and the “juice” to stand up to bureaucratic meddling and political interference. That’s in addition to having a “big picture” outlook and some actual experience in legal administration.

One additional key change I would make: The Chief Immigration Judge should also function as a “working judge” hearing and deciding at least some cases on a regular basis! There is no substitute for “actual time on the bench” for understanding the Immigration Judge’s proper role.

It puts the CJ in touch with both the DHS Counsel and the private bar on a regular basis. It also exposes BS and nonsense that’s going on in the Immigration Court system. A huge difference exists between “policy and procedural memos issued in a vacuum” from “on high” and actually having to apply them on a daily basis.

Indeed, a “sitting Chief Judge” wouldn’t have to “study” or ask for “reports” on the problems; she would know first-hand what they are from actual experience. Also, the CJ must get out in person and see what’s happening in the various courts, rather than taking an occasional “official tour” where everything tends to be a “sanitized show & tell.” An engaged Chief Judge could be “proactive rather than reactive.”

Surprising what you can find out by actually getting out of the “Executive Suites” in the Skyline Tower in Falls Church and poking around the “retail level” of the system you are administering! There is no better way of doing that than actually taking the bench and dispensing some justice!

How do I know? Well, during my six-year stint as BIA Chair (1995-2001) I was a “working appellate judge” in addition to be an engaged administrator of a dynamically growing and changing organization. I also served as a Senior Executive at EOIR and was never reticent about expressing my views on overall agency management and EOIR’s sometimes stormy relationship with other parts of the DOJ. At one point, I had the unenviable task, along with the then General Counsel of EOIR, of “barring” the then-Director from attending an en banc conference at which cases were to be discussed.

Upon appointment, from private practice, I was one of only four “permanent” appellate judges then on the BIA. By the time I stepped down in 2001, there were more than 20 appellate judges, the staff had more than doubled, a new management structure was in place, a Clerk’s Office had been created, the Virtual Law Library established, precedents were written and formatted differently, and numerous other changes had been made. Sadly, many of the positives have been erased over the past two decades through a combination of political meddling from DOJ and subservient “management” at EOIR.

I also sat and voted on nearly every one of the more than 200 precedent decisions issued during my tenure. I authored some of them, including the landmark decision Matter of Kasinga, recognizing female genital mutation (“FGM”) as persecution for the first time.

Additionally, I sat on three-member panels, sometimes as a “regular,” other times filling in for those who were out of the office. I took panels “on the road” to hear oral arguments across the U.S. (something now “prohibited” by the mindless “Ashcroft reforms” that accompanied his “purge” of the BIA in ‘02-03”) and to meet with the local judges, bar, and INS Counsel. It was “due process in action” — a real-life, open, accessible demonstration of how “collegial justice” should work! It put a much-needed and now totally absent “human face” on appellate justice. As those who practiced before the BIA at that time can testify, my “unmistakable signature” was on thousands of non-precedent decisions.

I also made regular unannounced visits to the BIA Attorney Advisers and the newly-established Clerk’s Office to chat about what was on folks’ minds. “Chairman alert” was a commonly heard “warning” throughout the various buildings of the Skyline Center where the BIA was located.

Sure, I didn’t get everything right, and there were some problems I couldn’t solve. But, I was always “on top” of what was happening — both legally and “operationally” — at the BIA. I didn’t have to spend lots of time asking for reports from the staff, because I knew from experience what the problems were and whether the solutions we were attempting were working or not.

Yes, my decision to actively participate in adjudication and aggressively advance my legal views put me in constant conflict with many of my more conservative judicial colleagues at the BIA. As the record shows, I got “outvoted” on a regular basis at both en banc and on panels. But, so what! That’s what being a “real judge” and having real views on justice, based on many years of experience in and out of Government, is all about!

An unanticipated benefit: My “hands on” judicial experience was good preparation for the somewhat unexpected “next phase” of my career — when Ashcroft “exiled” me to the Arlington Immigration Court in 2003. I’ll acknowledge that there were some things about being a trial judge that couldn’t be learned from reading transcripts, writing appellate decisions, and occasionally observing hearings in person.

In another life, at the “Legacy INS,” I had basically “created and implemented” the “modern Chief Counsel system” now in use at DHS — over some vigorous “internal opposition” to change and centralized legal control. That system provided independence from the “clients” in district office operations. Then, I basically had to face that creation in court every day for 13 years!

But, I certainly had a good idea of what I was getting into and was able to “hit the ground running” in terms of the substance of immigration law, the “big issues,” and what good trial decisions should be and look like in writing. Indeed, my “former colleagues” on the BIA sometimes mischaracterized my “oral decisions” as “written decisions” because I used the “familiar BIA written format” and constructed them as what I found the “ideal decision” to be for appellate review during my BIA tenure.

Interestingly, I found that as an Immigration Judge the more humane and realistic view of the law that had been an anathema to the majority of my BIA colleagues — and which helped me and my so-called “liberal” colleagues get the boot from Ashcroft and Kobach — was often accepted by both parties at the trial level. Even when appeals were taken, I did much better with my former colleagues as an IJ than I did as Chair. And, I certainly learned first-hand how deeply screwed up EOIR was and how misguided the BIA majority was on many of their precedents. That, in turn, prepared me to become an advocate for radical due process reforms at EOIR upon retirement.

It’s surprising what an administrator can learn if he or she actually “does” some of the “line work” they are administering. We need a functioning, substantively-engaged, well-informed, “real judge” for Chief IJ, not another “JINO!”

🇺🇸Due Process Forever!

PWS

07-26-22

😎👍🏼🗽BIPARTISAN COMMON SENSE IMMIGRATION REFORM BILL FROM MAINE — SENS. COLLINS (R-ME), KING (I-ME), REP. PINGREE (D-ME) PROPOSE SPEED-UP IN WORK AUTHORIZATION FOR ASYLUM APPLICANTS!

Rachel Ohm
Education Reporter
Portland (ME) Press Herald
PHOTO: Portland Press Herald

From the Portland Press Herald:

https://www.pressherald.com/2022/02/17/sen-collins-introduces-bill-to-help-asylum-seekers-obtain-jobs-more-quickly/

POLITICS Posted Yesterday at 7:52 PM Updated at 8:00 AM

Sen. Collins introduces bill to help asylum seekers get jobs sooner

The legislation, co-sponsored by Sen. Angus King, would make asylum seekers eligible to receive work authorization 30 days after applying for asylum.

BY RACHEL OHMSTAFF WRITER

Sens. Susan Collins and Kyrsten Sinema, D-Ariz., introduced legislation Thursday to shorten the waiting period before asylum seekers are allowed to receive work authorizations.

The bill, co-sponsored by Sen. Angus King, would reduce the waiting period for work authorization eligibility to 30 days after an application for asylum is filed. It comes shortly after Rep. Chellie Pingree introduced a similar proposal in the House.

“The law currently prohibits asylum seekers from working for extended periods of time, which prevents them from supporting themselves and their families as they want to do. It also inadvertently places the burden of care on states and municipalities,” Collins, a Republican, said in a news release.

The bill comes as Maine is seeing an influx of asylum seekers to Portland, many of whom are being housed in hotels paid for with state and federal funds because of a lack of shelter space and available housing. For the week ending Feb. 5, Portland was housing 189 families, a total of 639 people, in hotels.

“Our bipartisan legislation would permit these individuals to work and contribute to the local economy while their asylum claims are being adjudicated,” Collins said. “This commonsense bill would help cities like Portland and their partners in the nonprofit community that are currently caring for a large number of asylum seekers.”

. . . .

**************************

Read the rest of Rachel’s report at the link. Notably, Senator Krysten Sinema (D-AZ) was also one of the sponsors.

As Senator King says: “Maine has always welcomed asylum seekers, who have made our communities stronger and richer – but current federal laws are blocking these people from pursuing a job to help them support their families and contribute to their local economies!”

The current work authorization bill system for asylum applicants and other migrants seeking relief from the hopelessly backlogged USCIS or equally out of control Immigration Courts was left in complete shambles by the “malicious incompetence” of the Trump White Nationalist immigration bureaucracy. See, e.g., https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/crippling-uscis-work-permit-backlog-hurts-everyone.

Fixing it should have been “Day 1 Low Hanging Fruit” for the Biden Administration. After all, these are simple mostly “no-brainer adjudications” — such that they can barely be called “adjudications” at all. Basically, they require computerized records checks that most high school students probably could be trained to do efficiently in a few days. For example, the “adjudication” of an extension of work authorization is estimated to take about 12 minutes.

I’m old enough to remember the days “before the dreaded EAD” at the “Legacy INS.” Upon filing certain applications with the District Office, the officer simply stamped “Employment Authorized” on the individual’s paper I-94 card or in the passport and returned it to the applicant on the spot. It wasn’t perfect, but it worked and was reasonably prompt, practical, functional, and inexpensive to administer.

Now, there are 31 pages of instructions for filing an Application for Employment Authorization on Form I-765. Many categories require a rather bloated $410 filling fee and others require an $85 “biometrics fee,” thus making “EAD” issuance and renewal a “profit center” for supposedly largely self-supporting USCIS adjudications.

The only things missing from this “new improved process:” common sense, competence, efficiency, and, most of all, public service, despite Director Jaddou’s recent rewrite of the USCIS mission statement. I wish she’d spend less time thinking and talking about “public service” and more effort fixing the fairly obvious problems interfering with the actual daily delivery of public service by USCIS.

🇺🇸Due Process Forever!

PWS

02-18-22

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