"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
An immigrant advocacy center found that when their staff were able to provide legal representation or help to immigrants facing credible fear interviews, the immigrant outcomes improved considerably.
Las Americas Immigrant Advocacy Center, a nonprofit based in El Paso, released a report last week detailing challenges the organization’s staff found and recommendations for change and statistical data on individuals seeking asylum in the U.S. The nonprofit initiated a pilot project over eight weeks in the summer of 2023 in two New Mexico immigration detention facilities: The Torrance County Detention Facility and Otero County Processing Center along with the El Paso Processing Center. The project sought to provide participating asylum seekers legal representation or help in preparation prior to the migrant’s credible fear interview. They found that the participating asylum seekers had a 91.6 percent pass rate at the three facilities.
A credible fear interview is an important part of the immigration process for asylum seekers, advocates have said. Often, asylum seekers are placed into detention facilities where there is documented abuse before they are allowed a credible fear interview with an immigration judge. Advocates who work with asylum seekers have said that asylum seekers are often brought to a room to talk to the immigration judge over the phone. The conversation is not private and the asylum seeker is often not given time to prepare. Sometimes the asylum seeker is not provided a translator and not all asylum seekers speak Spanish or English. If the asylum seeker fails to convince an immigration judge of the danger they left behind, the asylum seeker is most likely to face deportation and are often returned to life threatening situations, advocates have told NM Political Report in the past.
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One recommendation to help solve the problem is for the creation of scholarship programs for community members with lived experience and building a community accreditation program that would offer community members with free training and job placement.
“This would also provide a cost-effective way of expanding legal services to meet demand, giving organizations like ours a more sustained means of providing quality legal services to a higher number of migrants,” the report states.
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Read Susan’s complete article at the link.
Studies like this reflect a reality that experts have long recognized, but few politicos and media figures are willing to admit:
Many, probably the majority, of those arriving at the border have credible claims for asylum;
They won’t be “deterred” from coming by cruelty, punishment, negative, often racist, rhetoric, and ever more extreme, deadly, yet ultimately ineffective border militarization;
With competent representation and better adjudicators —those with demonstrated, recognized adylum expertise — at both USCIS and EOIR many more asylum claims can and should be granted in a timely manner;
Rather than more expensive, ineffective border militarization, harsh imprisonment (“New American Gulag”), and coming up with new immoral and illegal restrictions on asylum, the Federal Government should be investing in more rational and cost-effective measures such as:
Training and approving more accredited representatives for arriving asylum seekers through programs like VIISTA Villanova;
Assisting localities and NGOs with reception and resettlement services;
Implementing better hiring practices and asylum training at the Asylum Office and EOIR;
Granting more asylum cases in a timely manner at or near to the “initial encounter” level (something that the Administration empowered itself to do, then inexplicably “suspended” the program just when it was MOST needed);
Developing better coordination, skills matching, and job training for those granted asylum;
Investing in English Language Learning, vocational training, social work, and other integration and assimilation services in communities where refugees resettle (notably, this would also create good job opportunities — many at the “professional” level — for existing U.S. workers).
It’s past time to move beyond “open border myths” and come up with humane,productive, legal, and effective programs to deal with the realities of human migration at our border!
🇺🇸 Due Process Forever, and great appreciation to all our veterans, past, present, and future!🙏👍
We are happy to announce that we will be doing occasional guest op-eds here at The Border Chronicle, and today is our first. You probably remember Brian Elmore, the emergency-medicine resident physician who did a Q&A with Melissa last month. In this op-ed he vividly describes what border deterrence does to a person’s flesh, and he makes an eloquent call for its end. After 30 years of this strategy, which has proved both deadly and harmful for people crossing the border, it is our honor to publish this reckoning and call for action, especially since we are entering an election year (it is now November, after all).
Brian is also the cofounder of Clínica Hope, a free clinic for migrants in Ciudad Juárez, Mexico, which he runs with the nonprofit Hope Border Institute.
And lastly, !Feliz Día de Muertos! Todd
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The Political Pathology of Border Deterrence: An Up-Close View of How This Policy Looks in the Emergency Room
“Deterrence won’t solve migration—it will only maim and mangle more men, women, and children. It will send more people to my emergency room. Some it will send to the morgue.”
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Read Dr. Elmore’s complete op-ed at the link.
So, exactly what makes “selling out” the legal, civil, and human rights of other persons a viable “strategy option” for Dem politicos, who certainly know better? See, e.g., https://www.politico.com/news/2023/11/02/biden-ukraine-aid-deal-00125125. Sounds “pretty GOP” to me — selling rights that aren’t yours in the first place! See, e.g., Women’s Right to Choose & the “Forced Birth Movement!”
Dems shouldn’t believe that by abandoning asylum seekers and trashing both civil and human rights at the border they will gain any credit from the GOP or leverage from their xenophobic voters. They will just leave a trail of dead bodies and sow the seeds for the destruction of our democracy.
If Pima County can effectively handle a migrant surge, why is it so hard for Congress?
Opinion: If Congress weren’t so dysfunctional, it would see where and how many resources are needed to effectively manage immigrants and the border.
Gregory Chen opinion contributor
It’s hard to imagine any American having faith in government — or its ability to solve a complex problem like immigration — when Congress can barely pass a temporary spending bill without getting mired in controversial issues like border security and coming dangerously close to shutting down the government.
Fortunately, dysfunction is not the story in every part of the country.
While Congress is pointing fingers on immigration, small towns and cities throughout the country are doing the hard work of managing migrants arriving at the U.S. southern border.
I recently visited Arizona with a delegation of immigration attorneys and policy experts and saw the work by government officials, social workers and health care professionals up close.
Every day, federal Customs and Border Protection (CBP) agents take recent arrivals to a church-affiliated shelter in Tucson, which does COVID-19 and other health screenings, provides a hot meal, and finds short-term local shelter, busing or other transportation in a matter of days or hours.
Remarkably, even with increased numbers of people coming into Pima County, the coalition of county administrators and nonprofits has found temporary housing and transport for everyone and avoided having people end up on the streets.
The local collaboration, supported by federal emergency funding, is a model for how migration at the border can be managed effectively.
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Read Greg’s complete article at the link. It’s largely what I’ve been saying all along. Although far from perfect (what is perfect these days?), the current law could be made to work if there were the political will to do so.
The GOP’s unrelenting racism, xenophobia, dehumanization, and “doubling down” on failed deterrence and punishment “strategies” are guaranteed to make things worse. Dems need to stand tall for solving the humanitarian issues at Southern Border in a humane, legal, and practical manner, using the tools available under current law!
It can be done! We just need the political will (and political pressure) to make it happen. It’s not rocket science!🚀
Ithaca, NY – As Congress considers border security issues in upcoming appropriations debates, four immigration scholars at Cornell Law School suggest opportunities for constructive, achievable, and sustainable immigration reforms. In a recent white paper they offer three sets of interlocking proposals structured to maximize bipartisan support: (1) strengthening border security; (2) adding work visas; and (3) offering deportation protection to DREAMers.
The Cornell scholars will assess the political landscape, describe their proposals, and outline why they believe the proposed reforms should—and could—be enacted.
WHEN: Thursday, November 9, 2023 at 12:00 PM Eastern
WHO:
Stephen Yale-Loehr, Professor of Immigration Practice and Director, Immigration Law and Policy Program, Cornell Law School
Hon. Cecelia M.Espenoza Former Appellate Immigration Judge, BIA; Member, Round Table of Former Immigration Judges Source: Denverdemocrats.orgHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Sir Jeffrey” Chase reports:
Hi all: The bipartisan Children’s Immigration Court bill that we endorsed was introduced today.
The press release of Sen. Michael Bennet included this quote from Cecelia!
“The most vulnerable people in immigration proceedings are unaccompanied children. The Immigration Court Efficiency and Children’s Court Act of 2023 not only improves the process for children, it also provides necessary support and guidance to the overburdened immigration court system to address the needs of these children,” said Cecelia M. Espenoza, Former Appellate Immigration Judge.
Thanks to Sen. Michael Bennett (D-CO), Sen. Lisa Murkowski (R-Alaska), Rep. Dan Goldman (D-N.Y.), Rep. Maria Salazar (R-Fla.), Rep. Hillary Scholten (D-MI), and Rep. Lori Chavez-DeRemer (R-OR)! This is long, long overdue! A great bipartisan idea! 😎
Rep. Hillary Scholten (D-MI) Credit: Ike Hayman SOURCE: Wikipedia
Rep. Hillary Scholten, the only former EOIR attorney in Congress, and an indefatigable advocate for good government, due process, common sense, and the well-being of children had this to say:
“Let’s be clear about one thing–infants and children should not be in a situation where they have to stand trial in immigration court,” said Scholten. “We have a deeply broken immigration system in this country. But as we continue the long and complicated work for repairing it, of fighting for justice in a political climate that has grown callous to the suffering of children, the next best option is creating a court that works to accommodate their unique needs. As a mom, I’ll never stop fighting for these vulnerable kids.”
Is this REALLY the “look” that Dems want at the “retail level” of the U.S. justice system. What if Garland and his lieutenants had to face this every day of their professional careers?
Received in the “Courtside mailbox:”
Hello. I just came across your page. What great work you are doing. This is awesome. I have a few topics that it would be nice to see a discussion about regarding IJ demeanor and how immigration lawyers are treated by IJs:
1. IJs are unchecked in many instances. When a lawyer is sick and unable to appear, there is no established method for informing the court.You just hope that the IJ has a responsible and reliable legal assistant [note: high turnover and understaffing of legal assistants is a chronic problem at EOIR] who will inform the IJ of your illness. Oftentimes, IJs become enraged that you do something human like “become too sick to appear.” They take it out on the respondent who has courageously appeared, without a lawyer, to avoid an in–absentia order. They oftentimes display bullying and rude behavior towards the client and the office staff of the lawyer when they learn that the lawyer cannot appear, even in instances where the lawyer or lawyer’s staff members have taken measures to inform the court of said illness. This bullying behavior may cause the client to lose faith in the attorney’s representation.
In years past, I can probably count upwards of several dozen occasions when I have traveled over 2 hours for a PreCovidafternoon individual hearing only to find out that the IJ was out sick. [“Aimless Docket Reshuffling (“ADR”) in action.] No one called to inform my office, and there was no recourse or reimbursement of travel funds. It would have been inappropriate to express any anger at the time I was informed at the pre-COVID hearing. Yet some IJs take it out on lawyers, the respondent, and the lawyers’ staff for the being too ill to appear. There is no human response. This behavior pressures some lawyers to perform even in instances where they may not be competent to perform. Yet IJs cancel court hearings, from the privacy of their homes, by calling out of work, providing lawyers and respondents with absolutely no notice or explanation.
2. Some IJs are unreasonably denying Webex hearings. How can the private bar join the DHS to make a statement regarding their newest fight to challengeIJs seeking to force them to travel from other states and far-away locations for hearings?
3. IJs need to stop yelling, rolling eyes, bullying, and mistreating lawyers and respondents.
4. One time I appeared in court with high fever and a bad cough, and asked for a continuance. Instead, the judge forced me to conduct the 3-hour individual hearing anyway. I was surely not competent to represent the respondent that day.
5. OPLA apparently is now being forced by EOIR to appear in person at the court. OPLA’s position is that its attorneys shouldn’t be forced to travel hours each way to and from to conduct hearings, and that it is essentially a waste of resources when WebEx is available. I believe that the private bar should join OPLA in its battle to preserve the ability to appear by WebEx, since it concerns us too.
6. We should not be arbitrarily and capriciously dragged in to court for in person appearances when technology affords otherwise. We have been using virtual technology for almost four years now, with the lesson of efficiency at the forefront. Traveling numerous hours each way is costly and ultimately unproductive for both the government and private bar members not living in close proximity to courts. With the advent of WebEx, attorneys get more work done by cutting down the number of hours sitting in traffic, leaving more time for case management and preparation. Most importantly, the benefit of WebEx hearings is an improvement of mental health of attorneys on both sides. It is important to mention that the pressure associated with dealing with temperamental adjudicators, a lack of productivity from daily travel, and overwhelming pressure to perform one’s duties for fear of being found ineffective ultimately leads to depression and anxiety.
7. One can also imagine the overall benefits for IJs and EOIR personnel. Having an efficient process for disposal of cases also gives IJs more time for case review and case management. One might also surmise that IJs may find relief in having fewer people in their courtrooms.
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This unduly harsh treatment of the legitimate needs of private attorneys by some IJs contrasts sharply with the recent “policy position” of OPLA that, essentially, ICE attorneys only have to appear in cases where “they feel like it.” https://www.ice.gov/about-ice/opla/prosecutorial-discretion.
I can testify from years on the bench that there are many occasions when as an IJ, I needed information and positions that only the Assistant Chief Counsel could furnish. This basically contemptuous approach to Immigration Court by DHS effectively converts IJs into Asylum Officers, perhaps less than that because IJs don’t have ready access to key information in the DHS databases. Moreover, I actually learned useful things about the strengths or weaknesses of a case by having an opportunity for a face-to-face dialogue with bothcounsel.
I wonder if OPLA would dare conduct business in this highly insulting and unprofessional manner if the DOJ had actually implemented the statutory contempt authority granted to IJs by Congress decades ago but improperly withheld by DOJ over Administrations of both parties.
This isn’t to minimize the observations of the anonymous attorney who related their experiences above that both counsel, and the cause of justice, suffer from lack of minimum professional judicial standards at EOIR.
I wonder how AG Merrick Garland and his political lieutenants would like it if, rather than moving on to cushy jobs after their DOJ tenure, they were required to spend the rest of their careers making a living representing individuals before the dysfunctional and irrationally “user-unfriendly” courts that they thus far have failed to materially reform? Until the Immigration Courts are finally removed from DOJ into an independent Article I structure, the appointment of AGs who lack significant “hands on” experience representing individuals before EOIR will remain problematic for justice in America. In the interim, Garland could and should make reforms administratively! Why hasn’t he?
On August 30, 2023, Judge Leo A. Finston of the Newark Immigration Court granted asylum to a Cravath pro bono client persecuted by gang members in El Salvador.
Cravath’s client overheard the murder of his neighbors by a Salvadoran gang and, fearing retaliation from the gang, subsequently refused to provide police with information. Even so, he was repeatedly attacked and continued to receive threats to “cooperate with the gang.” He fled El Salvador and arrived at the Texas border in December 2017, turning himself in to United States immigration officials and requesting asylum. He was detained, and Human Rights First represented him before the Immigration Court in Newark, New Jersey.
In September 2018, Judge Finston denied the application for asylum, finding that, while the man was credible and had suffered PTSD from the events in El Salvador, “complaining witnesses against major Salvadoran gangs” were not a “particular social group” for purposes of asylum, and there was not sufficient probability that he would be tortured upon his return to El Salvador. In March 2019, the Board of Immigration Appeals (BIA) dismissed the initial appeal. Cravath became involved at this stage, briefing and arguing the appeal before the Third Circuit Court of Appeals.
On April 17, 2020, the Third Circuit issued a precedential opinion (see related news item here) granting the client’s petition for review, vacating the BIA’s removal order and remanding the case to the BIA for further proceedings. The Court held that “persons who publicly provide assistance against major Salvadoran gangs do constitute a particular social group” for purposes of asylum, and that the BIA erred in denying relief under the Convention Against Torture, finding that “it is clear to us, viewing the record as a whole, that [he] suffered torture”. The Court remanded the case to the BIA, and in December 2021, the BIA remanded the matter to the Newark Immigration Court for further proceedings.
By that time, Cravath’s client was living in hiding in El Salvador, and the Cravath team spent the next year and a half trying to secure his return for a new merits hearing, consistent with the Third Circuit’s opinion.
On July 20, 2023, at a Master Calendar Hearing before Judge Finston, the Cravath team argued the man had a meritorious case and constitutional due process and statutory rights to be present at his merits hearing, but the Department of Homeland Security took the position that it had no obligation to allow him to return. On August 30, 2023, the Cravath team appeared on the client’s behalf at a second Master Calendar Hearing, where Judge Finston found that, in light of the Third Circuit’s opinion and based on the record before him, it was clear the man qualified for asylum and no further proceedings were necessary.
The Cravath team was led by partner Wes Earnhardt and included associates Brian P. Golger and Ana C. Sewell.
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Many congrats to Cravath!
I told the BIA that witnesses were a PSG more than a decade ago! They wouldn’t listen, but the Fourth Circuit did! See Crespin-Valladares v. Holder, 632 F. 3d 171 (4th Cir. 2011). When will they ever learn?
With proper guidance from a competent BIA, this case should have been a “slam dunk grant” five years ago. This also illustrates the absurdity of those who disingenuously claim that asylum applicants can receive due process without competent representation! It also shows the legal and moral bankruptcy of “expedited docket gimmicks” that attempt to rush cases to denial and deportation without a realistic chance to get representation and prepare!
The U.S. asylum system would work much more fairly and efficiently with a BIA of recognized asylum experts! They are out here! Why hasn’t Garland reformed and reconstituted the BIA to get the job done?
Lives and the future of American law are at stake here!
It’s a huge deal! Dems must “lose” the arrogant “it’s only immigration” attitude that has prevented Dem Administrations from doing the correct, courageous (and smart) thing on immigration, human rights, social justice, and civil rights! Migrants’ rights are human rights are civil rights are everyone’s rights!
Judge Finston did the right thing on remand from the Circuit. I’d like to believe that with better guidance from the BIA he would have done it five years ago. The human impact of the abject failure of the BIA to provide positive leadership on GRANTING asylum in recurring situations is an incomprehensible drag on our justice system at many levels.
Better judges for a better America! And, it starts at the “retail level” with EOIR!
Appearing before EOIR courts can be highly stressful — not everyone survives the ordeal! Here, a 3-judge panel deliberates the fate of an asylum seeker using traditional methods.Jeremy McKinney, Esquire Greensboro, NC AILA President
As Congress returns to action after House Republicans were finally able to elect a speaker of the House following a weekslong impasse, one area they seem determined to address is border policy. Unfortunately, there seems to be much less interest in tackling one of the most important parts of our immigration system: immigration courts.
To put it mildly, there are a lot of misunderstandings about immigration court, and how things work or don’t work. As someone who’s been working in immigration courts for 25 years, I can say there are a myriad of ways things can and should be better.
First, the distances between immigration courts and the people who need to use them are often vast. My office is in Greensboro, North Carolina; my immigration court is in Charlotte. My clients typically travel from two to five hours to appear in court.
I once represented two children—a brother and sister from Central America—in immigration court proceedings. They had been sold by their father into domestic servitude and then abused by the people who trafficked them. The children escaped and reached the United States.
To prove they deserved asylum under our laws, they had to share what happened to them. The brother was so young, he struggled to articulate the horrors he experienced, while his older sister bore the deep scars of trauma, ones so severe that she had attempted to take her own life while her case in court was pending.
As horrifying and clear-cut as their stories seemed, the siblings faced a bewildering array of legal challenges. Their notices to appear lacked any hearing date, leaving them confused about when to appear. Immigration judges frequently order people removed for not appearing, despite the countless examples of ways in which the bureaucracy fails to inform people what their obligations are.
Before filing their asylum applications, I had to send a copy to U.S. Citizenship and Immigration Services to trigger biometrics appointments for their criminal and security background checks. Some judges have ordered people removed for not having the biometrics done even though there isn’t anything they can do except request an appointment. Without a competent attorney working with you, it is impossible to make your way through all these pitfalls; errors at any of these stages could have resulted in them losing their asylum case—a devastating consequence and really a matter of life or death.
Prior to the hearing, I tried to contact the Immigration and Customs Enforcement attorney in their case to narrow down the legal issues. But the ICE attorney never responded, which is unfortunately common. In fact, ICE has recently instructed their attorneys that they don’t even need to appear in court. In any other court, if the trial attorney didn’t show up, the case would be dismissed. But not in immigration court.
Ultimately these siblings won their case because at the time, fear of persecution on account of kinship and domestic abuse was recognized as a valid basis for asylum. But several years after they won, then-Attorney General Jeff Sessions changed asylum law using his unusual power to override immigration court decisions and tried to block kinshipand abuse cases as bases for gaining asylum.
The simple truth is that immigration courts are not real courts. The Executive Office for Immigration Review, or EOIR, is an arm of the Department of Justice headed by a political appointee, the attorney general. The attorney general has total authority over EOIR—including the power to hire the judges and re-adjudicate any case they decide. In an appeal, the attorney general represents the government in seeking to deport the person instead of remaining the neutral decision-maker. Given their very structure, the courts are not fair.
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Read the rest of the article at the link.
Notably, the notice issue, such as the lack of a hearing date, time, and place, as required by statute, has reached the Supremes for the third time. A better BIA would have followed the statute and held DHS accountable right off the bat.
This is just one of many problems that, in the absence of long-overdue Congressional action to establish an independent Article I Court, as urged by Jeremy and other experts, Garland has failed to address with administrative reforms and needed personnel changes within his sole authority!
Many thanks to all involved in this effort, particularly Richard Mark and the Pro Bono Team at Gibson Dunn. Will the DOJ go down for the third time on interrelated notice issues before the Supremes? What if the BIA followed the statute and held DHS fully accountable? What if due process, fundamental fairness, and best practices were the mission of EOIR? (Hint, they once were the “noble vision” of EOIR — trashed by Administrations of both parties.)
Some Republican lawmakers are flagging Hamas’ attack on Israel as an example of why more security is needed at the southern U.S. border. Hamas militants breached a border fence and attacked Israeli villages bordering the Gaza Strip on Oct. 7.
“Potential terrorists are attempting to cross our southern border. In September alone, 18 illegal immigrants on the terror watchlist were caught at the border,” U.S. Sen. Marsha Blackburn, R-Tenn., posted Oct. 21 on X. “The attack on Israel should serve as a warning as to why we must secure the border.”
The next day, U.S. Rep. Kevin McCarthy, R-Calif., also mentioned the terrorist watchlist on NBC’s “Meet The Press.”
“We just caught 18 people, just last month, on the FBI terrorist watchlist, coming across our border,” McCarthy said. “More than 160 have done it this year, a record breaking.”
U.S. immigration officials have encountered rising numbers of people on the watchlist. But not everyone on the list is a terrorist, and not everyone encountered is allowed to enter the country.
Terrorism and immigration experts say that the threat of attacks in the U.S. and Israel are incomparable.
“They both involve borders, but the comparison ends there,” David Bier, an immigration expert at the libertarian Cato Institute, previously told us. “People aren’t crossing the border to conduct terrorist attacks or take over parts of the United States. A very small percentage may come to commit ordinary crimes, like selling drugs, but overwhelmingly, they are coming for economic opportunity and freedom.”
McCarthy’s office did not respond to our query for more information. A Blackburn spokesperson pointed us to a Fox News reporter’s post on X. Customs and Border Protection did not confirm whether 18 people were stopped in September.
Here’s what we know about who is on the terrorist watchlist, and what the data can and can’t tell us.
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Read Maria’s complete article which includes comments from real experts like Professor Stephen Yale Loehr, Professor Denise Gilman, Aaron Reichlin-Melnick, and others in addition to David Bier. They stand in sharp and long overdue contrast with the GOP’s alarmist, out of context, claims.
It’s little wonder that a party of anti-democracy activists, insurrectionists, and election deniers would want to deflect attention from themselves onto folks who are overwhelmingly coming to save their lives and to work hard and contribute to our economic growth!
I have previously “called out” Kristen Welker and NBC’s Meet the Press for giving McCarthy an unnecessary public forum for his alarmist narrative. See, e.g.,https://immigrationcourtside.com/2023/10/23/🚩politics-gops-bakuninist-clown-show-sows-american-chaos🤮☠️/. Worse yet, there was no effective “pushback” from Welker on McCarthy’s attempt to blame vulnerable asylum seekers for the political disorder and threats to our democracy that he and his righty GOP buddies helped sow!
Many thanks to Maria for setting the record straight and to the experts who were interviewed from her article!You actually did the “due diligence” that Welker and others often brush off when “doing immigration.”
Of course border security is important! A significant, achievable improvement would be to establish a fair, timely, functional asylum screening and adjudication system at ports of entry so that those seeking asylum will be motivated to use it (rather than attempting to “punish” and “deter” those who can’t use the current dysfunctional DHS/EOIR “system.”) That would give CBP a chance to concentrate on the real law enforcement challenge: identifying and stopping those who seek to harm the U.S. That’s going to take even better intelligence and more sophisticated efforts.
I also wouldn’t minimize that, as pointed out by the experts, CBP has been able to identify and deny entry to individuals on their list. That’s a sign of success, not failure!
To state the obvious, further cutting or restricting asylum (as many in the GOP disingenuously advocate) would only force even more of those seeking refuge into the hands of smugglers and push them into the dangerous lands between ports of entry. Misdirecting enforcement resources to fruitlessly and improperly trying to “deter” and “apprehend” those legitimately seeking refuge will only further dilute the attention that CBP can pay to any real dangers lurking at the border!
The stories of child migrant laborers are harrowing. They take on late-night, early-morning or 12-hour shifts that keep them out of school. They work on farms, at garment and food manufacturing factories as well as meat and processing plants, in construction and sawmills — often dangerous jobs with few protections.
Despite media portrayals of this system as a new economy, historian Ivón Padilla-Rodríguez has documented that the success of industries such as agriculture, manufacturing and construction in the Southwest relied on child labor as far back as the early 20th century. My dad arrived in Los Angeles from El Salvador as a 17-year-old in the 1970s. He immediately became a garment worker in denim factories across downtown Los Angeles and later installed carpet for a man who refused to pay him.
Los Angeles remains a center for this problem. My research studies the lives of undocumented young adults who arrived in the U.S. as unaccompanied minors from 2003 through 2013 and now live in L.A. I’ve spoken to children who have worked in garment factories that sew clothes for companies including Forever 21, J. Crew and Old Navy. Others worked in hotels such as the Ritz Carlton downtown or cleaned the homes of the rich and famous as live-in domestic workers.
Given my research focus, I often get asked what the government is doing about this child labor epidemic and what regular people can do about it. My response: It depends how far you want to go.
Perhaps counterintuitively to many Americans, part of the equation is paying attention to these youth before they cross our border by granting them what anthropologist Lauren Heidbrink and other scholars identify as “el derecho a no migrar” — the right not to migrate.
Young people need alternatives to migration to make a living. That shouldn’t mean aiding foreign governments in deporting migrants, as the Biden administration recently pledged to aid Panama’s government. It should mean investing in community-based programming to integrate children into their home society, such as Colectivo Vida Digna in Guatemala, which aims to reduce youth migration by supporting Indigenous teens and their families in reclaiming Indigenous cultural practices and strengthening communities so they can build futures without leaving their home country.
Even with those programs, some children will migrate to the U.S. and need shielding from exploitation. That may sound uncontroversial in theory, but the current policy landscape shows little willingness to widen the social safety net in practice, even for children and youth.
Take, for example, that last month a federal judge ruled illegal, but declined to end, Deferred Action for Childhood Arrivals, a program implemented by executive order in 2012 that offers work authorization and a stay on deportation for undocumented youth brought to the U.S. as children. Courts have debated the policy for more than a decade, and with the Supreme Court expected to review the policy a third time, even these longtime U.S. residents — once touted by President Obama as “talented, driven, patriotic young people” — are left in limbo.
Then there’s the immigration program meant to provide vulnerable immigrant children a path to lawful residence and citizenship: the Special Immigrant Juvenile Status designation created in 1990. A recent report found that it has produced “avoidable delays, inconsistent denial rates, and a growing backlog” of petitioners, putting unaccompanied youth’s lives “on hold” and leaving them vulnerable to exploitation and abuse.
All the while, states across the U.S. are actively moving to weaken child labor laws for all children, immigrants or not.
Children’s futures are under threat in the U.S., and stalled immigration policy is a culprit. Protecting children and child workers requires moving forward on immigration. Failing to do so may haunt us for generations to come.
Stephanie L. Canizales is an assistant professor of sociology at UC Merced.
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Jennifer Podkul Vice President of Policy & Advocacy Kids In Need of Defense (“KIND”) PHOTO: Momsrising.com
The figures in the Oct. 20 news article “Child labor violations soar in FY 2023” were staggering and all too familiar in my work with unaccompanied children, who are particularly vulnerable to exploitative labor conditions. Overnight shifts operating heavy machinery at slaughterhouses are not jobs or roles for any child.
To prevent this exploitation of unaccompanied children, we need to ensure existing laws are enforced, including child labor standards put forth by the Labor Department. Additionally, the Department of Health and Human Services should work toward ensuring every unaccompanied child is provided legal counsel as set out in the Fair Day in Court for Kids Act, recently introduced by Sen. Mazie Hirono (D-Hawaii).
As we’ve seen from experience, a lawyer can be one of the few trusted adults in the life of a child who is experiencing exploitation. Attorneys help unaccompanied children understand their rights against abuse and access a fair chance to make their case for U.S. protection, which can lead to the ability to apply for legal and safe employment. Most unaccompanied children do not have this elemental protection.
Jennifer Podkul, Washington
The writer is vice president of policy and advocacy for Kids in Need of Defense.
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Read Stephanie’s full op-ed at the above link. Many thanks to both of these experts for speaking out on this tragic, solvable, yet widely ignored by the pols and the media, issue!
They live in a rusty shack with no running water, hiding from the violence just outside their door, haunted by a question that won’t go away: Should they have listened to President Biden?
A year ago, Dayry Alexandra Cuauro and her 6-year-old daughter, Sarah, fled a crumbling Venezuela, setting off for the United States, carrying almost nothing. But they quickly lost each other, separated in a treacherous jungle known as the Darién Gap.
For three terrifying days, Ms. Cuauro heaved herself over muddy hills and plowed through rivers that rose to her chest, panicked that her child had drowned, been kidnapped or fallen to her death.
Many of the migrants traveling alongside the Cuauros — like hundreds of thousands of others — simply ignored the president’s warning, dismissing it as a ploy to keep them at bay. They kept marching, crossed the border and quickly started building new lives in the United States, with jobs that pay in dollars and children in American schools.
Ms. Cuauro listened and dropped off the migrant trail. But nearly a year later, all she has gotten is an auto-reply: Her applications to enter the United States legally have been submitted. She refreshes the website constantly, obsessively, and every day it says the same thing: “Case received.” Only the numbers shift: 57 days. 197 days. 341 days.
Online, she is bombarded by jubilant posts from Venezuelans who have made it to the United States — pictures of them in Times Square, wearing new clothes, eating big meals, going to school. Even the friend who guided her daughter safely through the jungle kept going and made it to Pennsylvania, where he now makes $140 a day as a mechanic.
. . . .
Sarah had become a literal poster child for the Darién. She and her mother had done what Mr. Biden had asked of them. They had a first-class support team of eager American sponsors. Yet no one could figure out how to get their cases through the U.S. immigration system.
. . . .
Recently, a member of the Cuauro committee, the woman in North Carolina, reached out with an urgent request. A Venezuelan man who had contacted her asking for help was about to take the Darién route. The woman asked Ms. Cuauro to talk to him — to try to convince him to apply for the legal route instead.
“I did it,” Ms. Cuauro said, “but he didn’t want to listen, and he left.”
The man got to the American border and, within days, crossed into the United States.
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Read Julie’s article at the link.
As Courtside readers know, I love writing headlines. So, here’s one for the story that Julie might have written had the Administration been quicker on the uptake:
🇺🇸🗽⚖️😊 VENEZUELAN MOM, DAUGHTER FIND SPONSOR, SAFETY IN U.S. UNDER BIDEN PROGRAM AFTER HARROWING DARIEN ORDEAL — “The Legal Path Was Quick, Safe, &Saved Our Lives,” Says Ms. Cuauro, “Others Should Use It!”
Despite often using language peppered with terms that might once have appeared in business textbooks, the USG does not follow a “business model.” Nowhere is that more true than in the largely dysfunctional immigration bureaucracy. Businesses that ran like ICE, USCIS, and EOIR would have gone bankrupt long ago.
Nevertheless, it would be prudent for the Administration to employ some “better business practices” on immigration, which does have a dynamic, potentially even more positive, effect on the U.S. economy.
In the case of the Southern Border, the USG is “competing” with professional smugglers and human traffickers who DO view it in business terms. The “smugglers’ heyday” of a bias-driven Trump Administration that operated in direct contravention of common sense, the rule of law, the laws of supply and demand, and the realities of worldwide forced migration is gone, for now — although, undoubtedly to the delight of criminals and cartels, GOP politicos would dearly love to re-establish it and thereby enhance profits for the “bad guys.”
But, there are plenty of glitches in the Biden Administration’s approach. As this article illustrates, they are unable and unwilling to do what’s necessary to “out-compete” smugglers by making the legal channels they tout robust, timely, generous, and user friendly!
In the meantime, the GOP is marshaling its White Nationalist forces to make the system for legal entry even more restrictive, irrational, and less usable. That will make smugglers essentially “the only game in town” and cede much more of immigration control to self-interested criminals.
Professor Stephen Yale-Loehr Cornell LawMuzaffar Chishti Senior Fellow Migration Policy Institute PHOTO: MPI
The Migrant Surge: What’s Different About It This Time?
Please join us on November 7, 2023, from 12:15 p.m. to 1:15 p.m. in Myron Taylor Hall G85 of Cornell Law School for a lunchtime seminar given by our guest Muzaffar Chishti and moderated by Stephen Yale-Loehr.
Join Mr. Chishti and Professor Yale-Loehr as they discuss the history of recent migrant flows to the U.S. border, the current migrant surge at the border, the impact on cities and states beyond the border, and possible impacts on federal immigration policy.
Muzaffar Chishti is a Senior Fellow at the non-partisan Migration Policy Institute (MPI) and Director of MPI’s office at New York University School of Law. He received his LLM from Cornell Law School in 1975.
Steve Yale-Loehr teaches immigration and asylum law at Cornell Law School as Professor of Immigration Practice and is of counsel at Miller Mayer in Ithaca, New York.
Can’t make it to our event in-person? You can attend virtually!
The Title 42 farce instituted by Trump, under false pretenses, to unjustly suspend asylum laws has expired. But, the Biden Administration has come up with its own scofflaw regulations and policies intended to “meter” the flow of legal asylum seekers at ports of entry and to improperly “punish” those who exercise their legal rights by entering and turning themselves in to CBP. Biden’s BIA continues to churn out unrealistic hyper-technical asylum precedents (that actually fly in the face of precedents like Cardoza-Fonseca and Mogharrabi) and wrong, anti-asylum decisions intended to “deter and discourage” asylum seekers from applying and to make it unnecessarily difficult, frustrating, and time consuming for pro bono lawyers to represent them!
Contrary to the nativist myths, the U.S. does NOT bear the brunt of increased forced migration! Even in the Western Hemisphere, Colombia has many times more displaced Venezuelans than the U.S. Indeed, the U.S. experience, no matter how much it’s hyped or distorted by nativists and shallow media alarmists, is only a relatively modest slice of the pie. Over three quarters of the world’s forced migrants end up in low and middle income countries outside the U.S. https://www.unhcr.org/sites/default/files/2023-06/global-trends-report-2022.pdf. Yet, you would never know that from listening to the apocalyptic narrative of GOP nativists and their Dem “fellow travelers!”
Years of cruelty, dehumanization, fortification, imprisonment, prosecution, endangerment, harsh laws, family separations, racist rhetoric, illegal turn backs, and summary deportations of asylum seekers in the U.S. and at the border have demonstrably, and quite predictably, failed to stop or materially deter forced migration stemming from causes outside of U.S. legal policies. Yet, most of our “dialogue” about the U.S. border and immigration start with the bogus assumption that closing the border and unilaterally suspending due process and domestic and international legal obligations will effectively create “Fortress America” where no migrant will dare to tread!
A real discussion of the border and migration must reject nativist myths, racist tropes, and media alarmism by starting with the truth. That is:
Human migration is a real and inevitable worldwide phenominon;
No one nation-state can unilaterally stop or prevent human migration;
Because of climate change and political instability in the world, forced migration is likely to increase in the foreseeable future;
Seeking asylum is a basic legal and human right;
The U.S. will have to accept more migrants, whether legally (preferable)or extralegally (the alternative).
Only by “ditching” and getting beyond nativist myths can we develop solutions that will deal realistically and humanely with human migration. I’m hoping that these two knowledgeable migration and legal experts can get us beyond the myths and to a discussion of practical, achievable actions!
Because an appeal accepted under section 460.30 of the New York Criminal Procedure Law is classified as a direct appeal, a respondent with a pending appeal under this section does not have a final conviction for immigration purposes. Brathwaite v. Garland, 3 F.4th 542 (2d Cir. 2021), followed.
While a welcome victory for the respondent, notably, this precedent only happened because the Second Circuit had reversed and remanded the BIA’s incorrect application of the finality standards!Brathwaite v. Garland, 3 F.4th 542 (2d Cir. 2021). Without great pro bono lawyering on his side, this respondent would have joined the many others wrongfully removed by EOIR’s sloppy approach to the law and justice for persons who happen to be migrants.
In other words, the “good enough for government” approach, despite some improvements in judicial hiring, still infects EOIR under Garland. Rather than pouring more money into walls, prisons, false “deterrents,” and trying to strip rights from migrants, Congress and the Administration should be focused on solving these glaring due process and quality control issues in the current system!
As I say over and over, unlike some aspects of human migration, this is a solvable problem! It’s not rocket science! 🚀 It’s just good government, dynamic, courageous leadership, and common sense! Better judges 👩🏽⚖️ for a better America!🇺🇸
Many congrats to NDPA star attorney John Peng of Prisoners’ Legal Services of New York!
John Peng Esquire Staff Attorney Prisoners’ Legal Services of NY PHOTO: PLSNY
John is a terrific example of the importance of immigration clinical education and the Immigrant Justice Corps! Here’s his bio:
John Peng, Federal Litigation & Appellate Staff Attorney
John joined the Immigration Unit in August 2019 as an Immigrant Justice Corps Fellow. He received his J.D. from the University of Pennsylvania Law School. There, John was an active participant in the Transnational Legal Clinic and focused his coursework on immigration and international human rights law. John was admitted to practice law by the New York State Bar in January 2020.
Approximately four years out of law school, John is establishing legal precedents, saving lives, and leading the way for others! This type of “impact leadership by example” is exactly the vision that led to the establishment of the Immigrant Justice Corps! It’s also why aspiring lawyers who “want to make a difference” right off the bat should consider careers in immigration, human rights, and social justice!
WASHINGTON — An immigration judge and lawyer told a U.S. Senate Judiciary panel on Wednesday that an independent immigration court would help ease a backlog of more than 2 million pending cases.
Because the immigration court system is an arm of the U.S. Justice Department — the Executive Office for Immigration Review — each presidential administration has set immigration policy, and often those courts are subject to political interference, said Mimi Tsankov, an immigration judge, and Jeremy McKinney, an immigration attorney.
In the immigration court system, judges hold formal court proceedings to determine whether someone who is a noncitizen should be allowed to remain in the United States, or should be deported.
“Every administration has interfered with the courts. This undermines the courts’ integrity, and many of the executive branch’s manipulations of judges and their dockets simply backfire,” said McKinney, the former president of the American Immigration Lawyers Association.
Tsankov, the president of the National Association of Immigration Judges, said in order to alleviate the backlog of immigration court cases, Congress should establish an independent immigration court under Article I of the U.S. Constitution.
. . . .
“An independent board will begin the process of healing this broken system,” she said.
The witnesses also argued that many people going through the immigration system lack legal representation, which can greatly impact their outcome.
The top Republican on the Senate panel, John Cornyn of Texas, argued that most cases are without merit, as opposed to asylum cases, which are based on a credible fear of death or harm. He said that people are “clogging the courts” and are aware the severe backlogs will allow them to stay in the country. Some courts have backlogs until 2027.
Sen. Mazie Hirono, Democrat of Hawaii, pushed back.
“People who have attorneys are 10.5 times more likely to be granted relief,” she said. “So it is when they have attorneys that they can proceed with their asylum claims.”
She added that another issue is that many children who are unaccompanied, even some toddlers, are expected to legally represent themselves.
“There is no guarantee that children will also have a lawyer, and this is alarming because children are some of the most vulnerable people in our immigration system,” she said.
Cornyn said he did not believe that “the taxpayer should be on the hook” for paying for legal fees and representation.
McKinney said that those who have representation and are not detained are five times more likely to gain relief. Immigrants who are detained and have legal representation are 10 times more likely to be granted relief than those who do not have representation.
“The point is that representation ensures due process,” he said. “It also makes the system more efficient when all the parties know the rules and know how to present a case. Cases move faster.”
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Read the full article at the above link. You can also check out the full video of the hearing here:
In his opening statement, ranking GOP Sen. Cornyn made it very clear that fixing the Immigration Courts is a nonstarter for the GOP.
Instead of engaging on this critically important initiative, he wasted much of his introduction disingenuously repeating the oft-debunked claim of a connection between asylum seekers and fentanyl smuggling. See, e.g., “Who is sneaking fentanyl across the southern border? Hint: it’s not the migrants,”https://www.npr.org/2023/08/09/1191638114/fentanyl-smuggling-migrants-mexico-border-drugs.
Obviously grasping at straws, in the absence of any empirical support for his nativist “scare scenario,” Cornyn went so far as to suggest — of course without a shred of evidence — that perhaps “go-arounds” were smuggling fentanyl.
This theory appears particularly questionable in light of evidence that most fentanyl is successfully smuggled through ports of entry by U.S. citizens and legal residents. Why would cartels abandon proven successful methods of port of entry smuggling to entrust their cargos to individuals who might not even survive the border crossing and, if apprehended, would certainly be searched? Cornyn had no answer.
What does seem likely is that by concentrating border law enforcement largely on “apprehending” and fruitlessly trying to “deter” those merely seeking to turn themselves in to exercise legal rights, the USG has diverted attention and resources from real law enforcement like an anti-fentanyl strategy. That almost certainly would require undercover infiltration of smuggling rings — dangerous and sophisticated law enforcement operations far removed from “apprehending” folks who WANT to be caught because they were forced to leave their home countries, are unsafe in Mexico, and can’t wait to schedule asylum appointments at ports of entry through the badly flawed and inadequate “CBP One App!” Building a fair and efficient asylum system should even help CBP apprehend more of Sen. Cornyn’s “go arounds!”
But, Cornyn’s misdirection isn’t just a distraction; it’s actually dangerous! As the GOP has shown over and over, if you repeat a lie or myth enough times, folks start to believe it. Witness the demonstrably totally frivolous claims of election interference that drive much of the GOP’s agenda and has become “truth” for their misguided “base.”
A case in point is the outrageous political boondoggle recently carried out by Virginia’s right-wing Governor Glenn Youngkin. In response to Texas Gov. Greg Abbott’s White Nationalist plea, Youngkin wasted two million taxpayer dollars on a bogus detail of the National Guard to the Texas border, ostensibly to “protect Virginians from the scourge of fentanyl.”
What if Youngkin had spent the same amount of money supporting NGOs in Virginia struggling to resettle and represent migrants aimlessly bussed to the DMV by Abbott and DeSantis as part of a political stunt? Community social justice NGOs generally use funds more carefully and efficiently than GOP blowhards like Youngkin and co.
The GOP claim that most asylum claims are frivolous also is misleading. For those who can actually get a merits hearing on asylum at EOIR — often in and of itself no mean feat given the prevalence of “Aimless Docket Reshuffling” — TRAC statistics for FY 2022 show that 46% are granted. Seehttps://trac.syr.edu/whatsnew/email.221129.html#. And, this is in a system that is still heavily tilted against asylum seekers. EOIR still has many “holdover judges” from the Trump years who were hired not because of their expertise, qualifications, or reputations for fairness, but because their backgrounds indicated that they were likely to be unsympathetic to asylum seekers!
Admittedly, the manner in which EOIR keeps asylum statistics can make meaningful analysis difficult. For example, more than half of asylum “dispositions” are listed as “other” — which covers“abandoned, not adjudicated, other, or withdrawn,” a facially, at least partially, circular definition! Seehttps://www.justice.gov/media/1174741/dl?inline.
Moreover, since EOIR procedures generally require that all potential relief be stated at the time of pleading or presumptively be waived, prudence requires that the right to appply for asylum be protected, even if it is unlikely that the case will proceed to the merits on that application.
Also, it’s worth remembering that the Government already has a powerful tool for both identifying and quickly tossing frivolous asylum claims and expeditiously granting clearly meritorious claims to keep them out of the Immigration Court. It’s called the Asylum Office at USCIS! That despite much ballyhooed regulatory changes, DHS has failed to obtain “maximum leverage” from the credible fear/Asylum Office process is not a reason for eschewing EOIR reform!
What we can tell from the available data is that, rather than wasting more money on expensive and ineffective “deterrence gimmicks,” the best “bang for the buck” for the USG would be to invest in representation for asylum seekers and in a better, professionally-managed EOIR with better, independent judges, acknowledged experts in asylum law, who could “keep the lines moving” without denying due process or stomping on individual rights.They could also set helpful precedents for the Asylum Office. That’s what Congress and the Administration should be investing in.
Reforming the Immigration Courts and creating an independent Article I Court should be a high national priority. While no single action can bring “order to the border” overnight, fixing EOIR is an achievable priority that will support the rule of law and dramatically improve the quality and efficiency of justice at the border and throughout the U.S.
As Chairman Padilla (D-CA) said, this should be a bipartisan “no-brainer.” Just don’t look to today’s White-Nationalist-myth-driven GOP for help or rational dialogue on the subject.
As horrifying and clear-cut as their stories seemed, the siblings faced a bewildering array of legal challenges. Their notices to appear lacked any hearing date, leaving them confused about when to appear. Immigration judges frequently order people removed for not appearing, despite the 
