"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.
Category: United States Citizenship and Immigration Services (“USCIS”)
Description Immigrants & Refugees Welcome – Banner on Facade – Pilsen – Chicago – Illinois – USA Date Taken on 18 February 2017, 10:55 Source Immigrants & Refugees Welcome – Banner on Facade – Pilsen – Chicago – Illinois – USA Author Adam Jones from Kelowna, BC, Canada Creative Commons License
Migrants are cut from the same cloth as the rest of us
One of the words I have not heard to describe migrants — but is a more accurate than the negative portrayals — is “families.”
By Letters to the Editor Nov 30, 2023, 5:11pm EST
With the holidays upon us, there will undoubtedly be plenty of work parties, shopping sprees with kids in tow and the ubiquitous family gatherings. The coming months will also challenge us to wear layers of clothes and wrap ourselves and our loved ones in blanket-like coats. I am fortunate to have plenty of gloves, scarves, coats and boots.
Others are less fortunate. The unfortunate ones include the “new arrivals,” most of whom have never experienced a Chicago winter. Since the migrants’ arrival, critics have taken to the airwaves offering their comments about the tents, buses, use of police stations, encroachment on city streets, and, what they believe is the destruction of the city’s social and economic fabric. Descriptions of migrants are also disconcerting: liars, troublemakers, thieves, wayward parents using their kids to manipulate the immigration system and outsiders trying to live off the municipal dough.
One of the words I have not heard but is a more accurate depiction of the new arrivals is families. The buses full of people reflect a multi-generational exit from countries steeped in turmoil and unrest: infants, children, parents, or other caretakers. Describing those who arrive as families could lead us to consider them fully human, more like us. Instead, we use words that create a chasm that places the migrants at an arm’s distance from us, society and our city.
Throughout the next month, love, joy, harmony and peace will be words we will likely hear daily in songs, written in holiday cards and celebrated in plays and movies that bring friends and families together. Some will celebrate the season by remembering the birth of a unique child. Warned to flee to ensure the safety of his wife and newborn child, the family patriarch left for other lands. Wouldn’t it be remarkable if we could see the face of this child in the faces of the children we see coming here? Perhaps we can take the first step by using words that remove the stigma and distance between us and the “new arrivals.” The words? Families, of course.
Esther Nieves, Wicker Park
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Yup, contrary to the absolute, hateful, BS from Trump, Johnson, and the rest of the MAGA right, and the disgraceful indifference of too many Dems, most migrants want: 1) security, 2) opportunity, and 3) a better future, particularly for family. That’s what I found over more than 13 years on the trial bench at the Immigration Court. Basically, what all of us want from life!
Migrants deserve fair, humane, dignified treatment from the U.S. and our legal system, regardless of whether they ultimately are able to meet the legal criteria to remain!
Families arriving at the border today likely to find those in power parrot the words of Christ while ignoring his teachings about mercy, humility, humanity. IMAGE: SojournersTodd Miller Border Correspondent Border Chronicle PHOTO: Coder Chron
I am at the Stanton Street Bridge between El Paso and Ciudad Juárez, where one year ago I watched groups of people wade through the shallow water to “pedir posada,” the Spanish-language term used for Joseph and Mary asking for refuge in Bethlehem 2,023 years ago. This year, there are no people below me, at least not right now, and the Rio Grande is a greenish, contaminated trickle that will dry up completely just east of El Paso, and then be replenished by the Rio Conchos 200 miles downriver in Presidio, Texas. On the other side of the bridge, you can see that the holiday season is in full gear as the line of people entering the United States coming from Ciudad Juárez extends up to the top of the bridge, exactly above the river. Surrounding the river are the props of the modern-day nativity scene: coiling razor wire, 30-foot walls, Texas Army National Guard troops and their armored jeeps, armed U.S. Border Patrol agents in their green-striped trucks, drone surveillance, camera surveillance, biometric systems. Partially, this is the result of the most money ever put toward federal border and immigration enforcement (as we reported this year, 2023 was $29.8 billion, a record number, which adds to the more than $400 billion since 2003). Partially, this is because Texas’s spending on Operation Lone Star, courtesy of Governor Greg Abbott and his right-wing, un-Christian justification machine, which has added up to $4.5 billion over the last two years. And this has been the response of the United States for people “pidiendo posada” for 30 years since Operation Blockade/Hold the Line began a border-building spree that has not ceased: there is no room at the inn.
I think of that cold night on the ground in a stable that is depicted in so many places this time of year as I walk past shivering refugees in heavy coats sitting outside against the Sagrado Corazón church in El Paso a few blocks from the border. I am reminded of the hundreds upon hundreds of people arriving to the Arizona border, as Melissa reported on earlier this week. I am reminded of the young Guatemalan mother I met myself at the border wall in late November as she tended to her two-month-old under the 30-foot border wall. They had been waiting there for two days. The infant was sick, and the nights were cold. The rest of the group, from the coast of Guatemala, built a fire to keep warm. When were the wise men going to arrive, the kings, the angels? The humanitarians did arrive, as they do, day after day (see Melissa’s reporting on that). I am reminded of being in Bethlehem myself a few years back, visiting the Aida refugee camp of Palestinians, which was surrounded by a tall concrete wall that had an embedded “pill box,” or a tower where snipers could point their assault rifles located mere miles from that stable where Mary gave birth on the cold ground. The Christmas story is playing out all around us, as lawyer and anthropologist Petra Molnar pointed out for us just yesterday. Where Mary, Joseph, and the infant Jesus had to flee Bethlehem when King Herod started to wield authoritarian power, the long trek to Egypt fleeing persecution is happening right now, throughout the world, such as in the Darién Gap in Colombia and Panama, as discussed in Melissa’s two interviews with anthropologist Caitlyn Yates—one podcast in December, one in August. Or the equivalent might be in the Mediterranean, as we discussed with Lauren Markham last June after a ship capsized near Greece, killing 600 people, or the countless places across the world where people struggle with a huge enforcement apparatus, which Anna Lekas Miller wrote about in her book Love Across Borders. We have spent the year doing our best to give you insight into what is happening on our borders.
I love this time of year, December, because things start to slow down, the frenetic pace starts to wane. For me, this becomes a more reflective period. Yet this modern Christmas story is anything but reflective. On television sets, commercials remind us of the holiday spirit (and to buy as much as we can), and movies have heartwarming tales of people coming together. Yet hospitality is scoffed at in words and policy, no matter what president, no matter what political party. Melissa has reported time and time again about the dehumanizing rhetoric; earlier this week, she wrote about a Fox News reporter talking about invaders and invasions and “credible fear thresholds.” This discourse abounds, with stories of people “taking advantage of our asylum system,” and claims that the United States can’t absorb any more people. Did Mary and Joseph hear similar soundbites on their journeys?
In these stories, we rarely hear about U.S. foreign policy, both historical and current. Take, for example, the Monroe Doctrine’s effect in Latin America: the centuries of upholding dictatorships, training generals, arming militaries—and, lately, creating border guards—and influencing politics, as well as the economic domination, in which corporate power and extractive industries enjoy a borderless world and can travel anywhere and take anything they want (see NAFTA, see CAFTA), from precious resources to cheap labor. Meanwhile, regular people—sometimes the very people displaced by corporate power—face harsher and harsher border regimes that extend throughout the continent. The same thing the Greg Abbotts of the world accuse undocumented people of doing here, corporate power is doing there. Studies have continually shown how a migrant labor force bolsters the U.S. economy in myriad, even critical ways (see, for example, the film A Day without a Mexican), yet border crossers get blamed for the big societal problems as if they had the power to set policy in corporate board rooms and in Washington. In the halls of power, debates stagnate over whether people are refugees or economic migrants—creating more divisions between the people most affected by the entrenched borders.
At the height of her pregnancy, Mary and Joseph walked for days, fleeing a Caesar Augustus’s occupying force—a story that resonates with more than 184 million people on the move today. I am reminded of my dear friend Irene Morales, a nun with the Madres of the Eucaristia, who I worked with two decades ago and who told me day after day—as we traveled through northern Mexico and the U.S. borderlands—that she saw Christ in the faces of people on the move. In the early 2000s, thousands of people were arriving to Altar, Sonora, to cross through the Arizona deserts. The people I talked to and interviewed were mostly from southern Mexico, and in many cases they were migrating because they could no longer make ends meet. From about 2002 to 2005, I talked to hundreds of people, and often it was parents thinking about their children, parents who talked about skipping meals for their children, wanting their children to get an education, or sometimes it was children on the move for a sick parent. So often it was a story of sacrifice at a time in a post-9/11 era characterized by a massive ramp-up on the border, with terrorism and migration blurring into each other at a policy level. “El rostro de Cristo,” Irene told me.
Stanton Street Bridge at sunset with a long line of people crossing from Ciudad Juárez to El Paso as is typical during the holidays. (Photo credit: Todd Miller)
As I stand on the bridge in Juárez, where everything seems basically the same, I know a lot has happened over the last year, and we have covered much of it at The Border Chronicle. I, for one, have been following that contaminated river and have gone into Chihuahua to report on border water struggles for a forthcoming book, and I have shared some photo essays here. Melissa also wrote about Chihuahua earlier this year for The New Yorker, focusing on the epidemic of journalists assassinated in Mexico, which she summarized in The Border Chronicle. I feel so fortunate to work alongside Melissa, who not only wrote (and talked to experts) about the innards of this massive border fortification, whether it be the surge of wall building, deadly vehicle chases, Operation Lone Star, or Florida cops patrolling the border—and the right-wing rhetoric that so often propels it (not to mention the Elon Musk circus)—but also about people in border communities for inspiration and solutions such as border artists, a brilliant sidewalk school, or a doctor who spends his time treating border crossers (Doctor Brian Elmore also penned an op-ed for us). And that’s just a taste. This year, I had the opportunity to go to Yale and debate border enforcement, a humbling and educational experience, to say the least. As I wrote about my losing effort, some of the dynamics we constantly struggle with in this sort of border journalism were clearly revealed.
Much has changed over the last year, but—from what I can tell suspended between El Paso and Ciudad Juárez—much has remained the same. The border policy is the same, there is more money in the budgets, there is more money in as-of-yet-unpassed supplemental funding bills, there are more and more contracts for private industry. And now we have an election year. And, as we all know, during an election year, the border is a politician’s sacrificial lamb. So be prepared for a good dose of border theater, and we’ll be here with our coverage, commentary, interviews, and podcasts. The last thing I want to do is stand on that bridge a year from now and watch people wade through the trickling Rio Grande to “pedir posada” at a large gate at an even more fortified border wall in El Paso. That is, however, the likely outcome of 2024, and we will cover all of it. But we will also find the spaces where people are trying to make change, we will listen to the border communities, and we will document the humanitarian efforts. And trust me you, we will be looking in the places where there is generosity toward the stranger.
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40 And the King will answer them, ‘Truly, I say to you, as you did it to one of the least of these my brethren, you did it to me.’
Matthew 25:40
It’s very straightforward. Yet, somewhere between the Nativity and MAGAMike Johnson, the message got lost! The real “War on Christmas” and Judeo-Christian values is being conducted by those in powerful positions who disingenuously press for deadly, illegal, inhumane, dehumanizing treatment of forced migrants!
I read somewhere that God’s eternal promise of Christmas is a closeness with humanity, forgiveness of sins and a radical, unconditional love for all. We ain’t there yet.
Also lost in the rush to cruelty and “deterrence:” Individuals have a legal right to apply for asylum at the U.S. border regardless of whether they arrive at a port of entry. See, INA, section 208.
The so-called “illegal” crossings are driven largely by the USG’s failure to implement timely and fair screening and processing at ports of entry. Even so, many individuals cross nearby the ports and wait patiently, in an orderly manner, outdoors, often in harsh conditions, to be “processed” by CBP.
This is hardly a “law enforcement crisis.” It’s a humanitarian crisis that, despite warnings and plenty of constructive ideas from experts, Congress and the Executive have jointly failed to address in a reasonable and responsible manner.
How unserious are Congress and the Administration about addressing the situation at the border in a responsible manner? The increasing flow of asylum seekers is predictable, considering that it is part of a worsening worldwide refugee flow.
So one logical, obvious thing to do, rather than building walls, prisons, and installing barbed wire, would be to hire and “surge” more USCIS Asylum Officers to the Southern Border to screen asylum seekers for credible fear, perhaps even expanding operations to foreign territory.
Maria Daniella Prieshoff Senior Attorney Tahirih Justice Center Baltimore, MD PHOTO: Tahirih
Maria Daniela Prieshof writes:
A brighter future is now ahead for our client, “Elise”, who was just granted T visa status! At 16 years old, Elise was trafficked into the U.S. by her father and adult brother, who forced her to work two jobs in the restaurant industry in Maryland, almost 60 hours a week at below $6/hour. Whenever she had time to be at home, her brother forced her to do all the household chores, locked her up at home, monitored all her movements, and assaulted her multiple times. Her brother and father controlled all her earnings and Elise would go hungry most days. With the help of a coworker, Elise escaped to safety and in 2022 was referred to Tahirih Justice Center for free legal and social services. My amazing social services colleague, Feamma Stephens, advocated for Elise to access urgent services to combat her homelessness and receive mental health care.
This week, we all celebrated with Elise when we received news that she’d been finally granted T visa status! Elise is delighted and eager to apply for scholarships so she can afford to go to college and achieve her dreams. ❤️ 🌈
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Thanks, MDP, for reminding us that notwithstanding the distortions being foist upon the public about the “border security threat” — basically, thousands of individuals lining up in an orderly manner and waiting patiently, for days or hours, often in freezing conditions, to be processed and screened by the USG— the system can work to save lives, particularly with top-level representation. If there are “terrorists” seeking entry into the U.S. it’s highly unlikely that they are standing in those lines to present themselves to law enforcement officials or that they are going through the complicated and difficult process for getting T visas.
But, apparently it isn’t as politically useful and profitable (for some) as walls, detention, deportations, and deprivations of legal rights. And, human rights don’t seem to interest the media as much as being able to trumpet “border crises” and photo ops of Texas Governor Greg Abbott holding up a signed copy of his latest nativist deportation gimmick.
As predicted by experts from the “git go,” AG Merrick Garland’s indolent, half-baked approach to his most important responsibility — bringing justice and functionality to his Immigration Courts, has been a disastrous failure endangering our entire democracy! PHOTO: Thomas Hawk Creative Commons Amateur Night
Here’s the latest report from TRAC documenting how former Federal Judge Merrick Garland’s failure to fulfill his most important duty — reforming and fixing the U.S. Immigration Courts, has built backlog at record paces and undermined our democracy:
Here’s the “action plan” that’s been publicly available since July 2023 — “Rethinking The U.S. Immigration Court System” — yet largely, and disastrously ignored by Garland, his lieutenants, and the Biden Administration:
The U.S. immigration courts—and the nation’s immigration enforcement system they support—face
an unprecedented crisis. With a backlog of almost 2 million cases, it often takes years to decide cases. Moreover, the recent growth in the caseload is daunting. In fiscal year (FY) 2022, immigration courts received approximately 708,000 new cases, which is 160,000 more than in any previous year. Such numbers, coupled with the courts’ resource constraints and decision-making processes, ensure that the court system will continue to lose ground.
For asylum cases, which now make up 40 percent
of the caseload, the breakdown is even more dire. Noncitizens wait an average of four years for a hearing on their asylum claims to be scheduled,
and longer for a final decision. Those eligible for protection are thus deprived of receiving it in a timely manner, while those denied asylum are unlikely
to be returned to their countries of origin, having
established family and community ties in the United
States during the intervening years. The combination
of years-long backlogs and unlikely returns lies at the
heart of our broken asylum system. That brokenness contributes to the pull factors driving today’s migration to the U.S.-Mexico border, thereby undermining the integrity of the asylum and immigration adjudicative systems, and immigration enforcement overall.
Many of the factors contributing to the dramatic rise in the courts’ caseload have deep and wide-reaching roots, from long-standing operational challenges in administering the courts to new crises in the Americas that have intensified both humanitarian protection needs and other migration pressures. The scale of these twin challenges has made it more urgent than ever to address them together. In the aftermath of lifting the pandemic-era border expulsion policy known as Title 42 in May 2023, the Biden administration is implementing wide-ranging new border policies and strategies that establish incentives and disincentives linking how migrants enter the United States with their access to the asylum system. But timely, fair decisions are also central to the success of this new regime.
While many other studies have outlined wholesale changes in the immigration court system that only Congress can enact, such legislative action seems unlikely, at least in the near term. Thus, this report calls
for changes that can be made by the Executive Office for Immigration Review (EOIR), the agency within the Department of Justice (DOJ) that houses the immigration courts, as it is presently organized. Because the immigration courts are administrative bodies, the executive branch has considerable latitude in determining their policies and procedures. The changes laid out in this report hold great potential to improve the courts’ performance and, in turn, enhance the effectiveness of the U.S. immigration system more broadly.
Some steps in this direction are already being taken. The Biden administration has streamlined certain important policies and procedures at EOIR. Nonetheless, these courts and the Board of Immigration Appeals
2 million
cases in the backlog
About 650
immigration judges nationwide
Less than 500
cases completed per judge in most recent years
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AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
(BIA), which reviews appeals from immigration court decisions, fall short of meeting the hallmarks of a well- functioning adjudicatory system: that decisions be accurate, efficiently made, consistent across both judges and jurisdictions, and accepted as fair by the public and the parties in the case.
Related issues of caseload quantity and decision quality have given rise to the difficulties EOIR is confronting. Under the Trump administration, the reopening of thousands of administratively closed cases and increased interior enforcement led to rising court caseloads. And since 2016, increased border crossings have accounted for growing numbers of new cases, many of them involving asylum claims.
Cases are also taking longer to complete. While pandemic-related restrictions played a role in this slowdown, case completion rates had in fact already been declining. In FY 2009, each immigration judge completed about 1,000 cases per year. By FY 2021, the completion rate had decreased to slightly more than 200 cases per year, even as the number of immigration judges grew. Thus, more judges alone are not the answer. Slow hiring, high turnover, and a lack of support staff have resulted in overwhelmed judges whose productivity has decreased as the backlog has grown.
Concerns about the quality of decision-making by immigration courts and the BIA have existed for decades. More than one in five immigration court decisions were appealed to the BIA in FY 2020, and appeals of BIA decisions have inundated the federal courts. Federal court opinions have pointed to errors of statutory interpretation and faulty reasoning when overturning decisions. Policy changes at
the BIA, ever-changing docket priorities from one
administration to the next, and some recent Supreme
Court directives have contributed to the diminished
adjudicative quality. Wide variances in case outcomes among immigration judges at the same court and across different courts around the country further point to quality concerns; for example, the rate at which individual immigration judges denied asylum claims ranged from 1 to 100 percent in FY 2017–22.
EOIR has increasingly turned to technology to manage its dockets, primarily through video-conferencing court proceedings. The COVID-19 pandemic accelerated its use of internet-based hearings. Four important, yet at times competing, considerations are central when evaluating how technology—and particularly video-conferencing tools—are used in immigration proceedings: efficiency, the impact of technical difficulties, security issues, and concerns about due process.
The U.S. Immigration and Customs Enforcement (ICE) attorneys who prosecute removal cases also play an important role in the court system. Their use of prosecutorial discretion, along with judges’ docket management tools, help shape which cases flow through the system, and how.
Legal defense representation—or the lack of it—is a critical issue plaguing the immigration court system. Noncitizens in immigration proceedings, which are civil in nature, are not entitled to free legal counsel, as
The rate at which asylum claims are denied varies widely, from
1% with one judge to
100%
with another in FY 2017-22
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AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
defendants in criminal proceedings are. But they can face life-changing, and sometimes life-threatening, circumstances when subject to an order of removal from the United States. Studies have repeatedly found that representation in immigration proceedings improves due process and fair outcomes for noncitizens. It also improves efficiency, as represented noncitizens move more quickly through immigration court. Lawyers, accredited representatives, immigration help desks, and legal orientation programs aid some noncitizens through this process. But many more move through complex proceedings pro se (i.e., unrepresented).
Federal funding for representation of noncitizens in removal proceedings is effectively barred. Public funding at the state and local levels has increased the availability of representation for some noncitizens. A large share of representation is provided by nonprofit legal services organizations and pro bono law firm resources. Nonetheless, representation is fragmented and insufficient, given the scale of need.
One element of this system that has seen notable signs of change in recent years has been how border management feeds into the courts’ caseload. The Biden administration began implementing a new
asylum processing rule at the southwest border in June 2022 that aims to ease the growing pressures on immigration courts.1 The rule authorizes asylum officers, who are part of U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security (DHS), to make the final decision in asylum cases instead of immigration judges. Asylum seekers whose claims are denied by an asylum officer can still appeal the decision, but on an expedited timeline. As such, the rule holds the potential to reduce the growth of the immigration court backlog and shorten adjudication times to months instead of years.
Since lifting the Title 42 expulsion policy, the Biden administration has paused implementation of the asylum rule due to competing demands for asylum officer resources. But returning to the rule, and strengthening EOIR’s functioning overall, will be important for managing the flow of cases into the immigration courts and the courts’ ability to keep pace with them. Doing so depends on the court system using technology better, more strategically exercising discretion in removal proceedings, and increasing access to legal representation so that courts deliver decisions that are both timely and fair.
This report’s analysis of the issues facing the nation’s immigration courts and its recommendations for addressing them reflect research and conversations with a diverse group of stakeholders—legal service providers, immigration lawyers and advocates, current and former immigration judges, BIA members and administrators, academics, and other experts who have administered, practiced before, and studied the immigration court system. The report urges EOIR and DHS, in its role as the agency whose decisions and referrals come before EOIR, to work together to:
Strengthen the immigration court system’s management and efficiency
► Schedule new cases on a “last-in, first-decided” basis. Such a reset to the system, which has proven successful in the past, could bring processing times on new cases down to months, rather than years.
1 This rule draws in part on proposals made in an earlier Migration Policy Institute (MPI) report: Doris Meissner, Faye Hipsman, and T. Alexander Aleinikoff, The U.S. Asylum System in Crisis: Charting a Way Forward (Washington, DC: MPI, 2018).
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AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
Because this disadvantages cases that have already been waiting for a long time, it should be treated as a temporary, emergency measure alongside policy and procedural reforms that protect fairness and promote efficiency more broadly. Shifting resources back to adjudicating older cases, as timeliness is established with incoming cases, is essential for shrinking the growth and size of the backlog, which should be among the courts’ highest priorities.
► Terminate cases that do not meet the administration’s prosecutorial guidelines, which focus priorities on felons, security threats, and recent entrants. One approach to this would be to task ICE attorneys with triaging backlog cases to determine which could be fast-tracked for grants of relief or for removal. Such efforts would allow the courts and ICE attorneys to focus on more serious cases, especially those involving criminal charges.
► Centralize case referrals from DHS. Instead of the current practice of having all three DHS immigration agencies (ICE, USCIS, and U.S. Customs and Border Protection) refer cases separately to EOIR, ICE attorneys should initiate all cases. As de facto prosecutors, they are best positioned to determine the legal sufficiency and priority for moving cases the government has an interest in pursuing.
► Establish two tiers of immigration judges—magistrate and merits judges—modeled on existing state and federal court systems where judges and staff are assigned to different roles or dockets so that cases move through the adjudication system efficiently and expeditiously.
► Expand the use of specialized dockets or courts that handle cases involving specific groups of noncitizens or require certain subject matter expertise, such as juveniles, families, reviews of credible fear determinations, cancellation of removal, adjustment of status, and voluntary departure.Restart the asylum officer rule and provide the support needed to implement it
► Establish a dedicated docket for the asylum officer rule’s streamlined appeal proceedings. As the most far-reaching reform the Biden administration has introduced for strengthening management of the asylum and immigration court systems, implementing the rule effectively is key to reducing the pace of caseload growth in the court system and discouraging weak claims.
Upgrade how the courts use technology
► Ensure that technology is used to make immigration courts fairer for everyone involved, such as by holding hearings remotely when parties would be unable to attend an in-person hearing. Special attention should be paid to how the use of technology can affect detained noncitizens and vulnerable populations such as children.
Increase access to legal representation
► Establish a new unit within EOIR devoted to coordinating the agency’s efforts to expand representation. The unit should collaborate with nongovernmental stakeholders to make representation of detained noncitizens a priority and to allow partially accredited representatives— some of whom may be non-lawyers—to appear in immigration court for limited functions.
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AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
► Develop new and innovative ways to scale up representation by coordinating with lawyers who take responsibility for specific aspects of cases or non-lawyers who are specially trained and supervised
to do so. Legal service providers should build a multi-stage, collaborative online system that enables representation by lawyers or non-lawyers in specific stages of a case for which they have the requisite expertise (e.g., filing forms, attending bond or master calendar hearings, or seeking relief ). This approach requires creating e-files for cases, with files moving from one representative or provider to another as cases progress, resulting in both expert representation at each stage and greater efficiency in moving cases forward overall.
► Encourage efforts by state and local governments to provide and/or increase funding to support representation, especially given current restrictions on federal funding of representation in most removal cases.
Despite efforts by successive administrations to bring
the immigration court system’s unwieldy caseload
under control and to improve the quality of its
decision-making, the courts remain mired in crisis.
And while many of the most pressing problems have
roots that stretch back decades, they have in recent
years reached a breaking point. The measures
proposed in this report hold the potential to reduce
case volumes, increase the pace of decision-making,
and improve the quality of adjudications. They would
also mitigate migration pull factors that result from
years-long waits for decisions. The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.
The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement
and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.
BOX 1
About the Rethinking U.S. Immigration Policy Project
This report is part of a multiyear Migration Policy Institute (MPI) project, Rethinking U.S. Immigration Policy. At a time when U.S. immigration realities are changing rapidly, this initiative has been generating a big- picture, evidence-driven vision of the role immigration can and should play in America’s future. It provides research, analysis, and policy ideas and proposals—both administrative and legislative—that reflect these new realities and needs for immigration to better align with U.S. national interests.
The research, analyses, and convenings conducted for MPI’s Rethinking initiative address critical immigration issues, which include economic competitiveness, national security, and changing demographic trends, as well as issues of immigration enforcement and administering the nation’s immigration system.
To learn more about the project and read other reports and policy briefs generated by the Rethinking U.S. Immigration Policy initiative, see bit.ly/RethinkingImmigration.
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Read the full report at the link.
Not the first time I’ve said this, but it’s time for “Amateur Night @ The Bijou” (“A/K/A Merrick Garland’s failed EOIR”) to end! Reassign the EOIR senior management folks who have demonstrated “beyond any reasonable doubt” their inability to provide dynamic, due process with efficiency management and visiononary leadership and to solve pressing problems. (This includes the inability to stand up and “just say no” to bonehead “gimmicks” like Garland’s due-process-denying, quality diminishing, backlog-building, “expedited dockets”).
It’s not an exaggeration to say that the anti-asylum, anti-human rights, anti-reality charade now playing out in Congress is driven in large part by Garland’s three-year failure to do his job by getting functionality and due process focused leadership into EOIR.
Bring in a competent, expert executive team, hand them the MPI Plan, and empower them to move whatever “bureaucratic mountains” need to be moved to get results, including, but not limited to, major personnel changes at the BIA and in Immigration Courts and taking a “hard line” with counterproductive performance by DHS (actually “just a party” before the Immigration Courts, NOT “their bosses!”)
Bring in these experts:
Judge (Retired) Dana Leigh Marks
Professor Stephen Yale-Loehr
Dean Kevin Johnson
Michelle Mendez (NIPNLG)
Professor Michele Pistone
Jason “The Asylumist” Dzubow
Wendy Young (KIND)
Task this “Magnificent Seven” — folks with centuries of practical expertise and creative ideas for actually solving humanitarian problems (rather than making them worse, as per the ongoing travesty on the Hill) — with turning around the EOIR disaster; support and empower them to achieve results and to reject politicized bureaucratic meddling from DOJ and elsewhere! Make the long-unfilled “promise of INS v. Cardoza-Fonseca” — a legitimate, properly generous, practical, efficient asylum and refugee adjudication system that complies with international and domestic law and simple human decency — a reality!
This is about rebuilding America’s most important and consequential court system, NOT running an “government agency!”
This is also the “demand” that Congressional Dems SHOULD be making of the Biden Administration, instead of engaging in disgraceful (non) “bargaining” with GOP nativists that seek an end to asylum and an increase to human suffering and ensure continuing humanitarian disaster at our borders!
Melissa Del Bosque Border Reporter PHOTO: Melissadelbosque.comCaitlyn Yates Fellow Strauss Center for International Law & Security PHOTO: Strauss Center
This podcast from Melissa Del Bosque of The Border Chronicle and Caitlyn Yates, who actually works with migrants in the Darien Gap, gives real life perspective on the humanitarian crisis and all the reasons why more cruelty, punishment, and deadly deterrence isn’t going to solve the flow of forced migrants. But, unhappily, policy makers aren’t interested in the voices of those who actually have experience with forced migrants, nor are they interested in learning from the forced migrants themselves — a logical — if constantly ignored — starting point for making sound policy decisions!
Migration and human rights experts have excelled in court and academia. Yet, they have been consigned to wander the political wilderness, their wisdom, expertise, and real world solutions are routinely ignored or mindlessly rejected by both political parties. Colmar – Unterlinden Museum – The Isenheim Altarpiece 1512-16 by Matthias Grünewald (ca 1470-1528) – Visit of Saint Anthony the Great to Saint Paul the Hermit in the Wilderness Creative Commons
Four “takeaways” on what a consensus on migration should be:
Human migration is real;
Forced migration is largely beyond the unilateral control of any one nation;
Deterrence alone won’t stop migration;
More legal pathways for migration are necessary.
We’re a long way from that needed consensus right now!
WASHINGTON (AP) – President Joe Biden is taking a more active role in Senate negotiations about changes to the immigration system that Republicans are demanding in exchange for providing money to Ukraine in its fight against Russia and Israel for the war with Hamas.
The Democratic president has said he is willing to make “significant compromises on the border” as Republicans block the wartime aid in Congress. The White House is expected to get more involved in talks this week as the impasse over changes to border policy has deepened and the money remaining for Ukraine has dwindled.
Republican Sen. James Lankford of Oklahoma, who is leading the negotiations, pointed to the surge of people entering the U.S. from Mexico and said “it is literally spiraling out of control.”
But many immigration advocates, including some Democrats, say some of the changes being proposed would gut protections for people who desperately need help and would not really ease the chaos at the border.
Connecticut Sen. Chris Murphy, the top Democratic bargainer, said the White House would take a more active role in the talks. But he also panned Republican policy demands so far as “unreasonable.”
. . . .
Critics say the problem is that most people do not end up getting asylum when their case finally makes it to immigration court. But they say migrants know that if they claim asylum, they essentially will be allowed to stay in America for years.
“People aren’t necessarily coming to apply for asylum as much to access that asylum adjudication process,” said Andrew Arthur, a former immigration court judge and fellow at the Center for Immigration Studies, which advocates for less immigration in the U.S.
Some of what lawmakers are discussing would raise the bar that migrants need to meet during that initial credible fear interview. Those who do not meet it would be sent home.
But Paul Schmidt, a retired immigration court judge who blogs about immigration court issues, said the credible fear interview was never intended to be so tough. Migrants are doing the interview soon after arriving at the border from an often arduous and traumatizing journey, he said. Schmidt said the interview is more of an “initial screening” to weed out those with frivolous asylum claims.
Schmidt also questioned the argument that most migrants fail their final asylum screening. He said some immigration judges apply overly restrictive standards and that the system is so backlogged that it is hard to know exactly what the most recent and reliable statistics are.
. . . .
WHAT MIGHT THESE CHANGES DO?
Much of the disagreement over these proposed changes comes down to whether people think deterrence works.
Arthur, the former immigration court judge, thinks it does. He said changes to the credible fear asylum standards and restrictions on the use of humanitarian parole would be a “game changer.” He said it would be a “costly endeavor” as the government would have to detain and deport many more migrants than today. But, he argued, eventually the numbers of people arriving would drop.
But others, like Schmidt, the retired immigration court judge, say migrants are so desperate, they will come anyway and make dangerous journeys to evade Border Patrol.
“Desperate people do desperate things,” he said.
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Ignoring both the powerful forces that drive human migration and folks who actually work with migrants at the border and in foreign countries seems like a totally insane way to “debate policy.” But, then, whoever said this “nativist-driven debate” on enhanced cruelty, dismantling the rule of law, and de-humanization is rational?
You can read Rebecca’s full article, with an “accessible” explanation of what’s at stake and what’s being proposed at the above link.
Hon. Thomas Lister Retired Jackson County (WI) Circuit JudgeHon. Paul Wickham Schmidt U.S. Immigration Judge (Ret.) Adjunct Professor, Georgetown Law Blogger, immigrationcourtside.com
We graduated from UW Law School in 1973. As retired judges we have been searching for ways in which individuals like us and our many retired judicial colleagues can use our unique legal skill sets to aid in addressing the humanitarian crisis at our borders. In that spirit, we propose to Congress, the Administration, and other decision-makers involved, the creation of “Judges Without Borders.” First, here is a brief summary of our respective backgrounds.
Paul Wickham Schmidt served as a U.S. Immigration Judge, U.S. Department of Justice (“DOJ”) in Arlington, Virginia (2003-16), after being an Appellate Judge of the Board of Immigration, Appeals (1995-2003), where he was Board Chair for six years. He authored the landmark decision: Matter of Kasinga, extending asylum protection to victims of female genital mutilation. He previously served as Acting General Counsel and Deputy General Counsel (1979-87) of the former Immigration and Naturalization Service, and was instrumental in developing the rules and procedures to implement the Immigration Reform and Control Act of 1986, as well as establishing the modern Immigration Court system in the DOJ. His experience also includes being a partner in two major law firms, Jones Day and Fragomen.
Paul is retired, and now is an Adjunct Professor of Law at Georgetown University Law Center. He has authored numerous articles on immigration law and speaks, lectures, and writes in forums throughout the nation on contemporary immigration issues, due process, and U.S. Immigration Court reform. He publishes the blog immigrationcourtside.com and is a member of the Round Table of Former Immigration Judges and BIA Appellate Judges.
I am a former district attorney, county corporation counsel, trial lawyer, and circuit court judge. While serving as a judge, I formed a collaborative justice coordinating council, and received one of only two national multi-year grants designed to create family treatment courts, addressing not only the needs of drug and alcohol dependent individuals, but their families as well through a holistic approach and diversion programming. I worked closely with the Ho-Chunk Nation to help create its Healing to Wellness Courts. Upon retiring, I led a successful litigation effort to stop the proliferation of frac-sand mining in Wisconsin’s Driftless region, utilizing anticipatory private-nuisance doctrine.
For the last several years, we have sought to find ways to help those who legally seek to gain asylum in the United States. Initially we proposed an initiative whereby retired State, and Federal judges would volunteer to attend a multi-week program to become trained in the laws and procedures governing eligibility screening; then potentially, aiding the overwhelmed corps of Immigration Judges by pre-filtering hundreds of thousands of potentially meritorious asylum claims, while at the same time advising those who likely will not qualify, that they probably will, potentially after many months of detention, be deported to their native country, or a safer alternative destination. We contemplated that retired judges could also be available to take some of the routine procedural and adjudicative burdens off of Immigration Judges so that they could concentrate on adjudications such as asylum, requiring their specialized training and experience.
Most of those seeking asylum at our border have experienced some type of trauma in their home countries. However, because the international refugee definition that the U.S. has adopted covers only harm resulting from race, religion, nationality, political opinion, or membership in a particular social group, and the evidentiary burdens can be daunting, some of those who have been harmed or reasonably fear harm will not be able to meet the legal criteria for asylum in the U.S. In such cases, individuals will have risked their, and perhaps their family’s lives, and their limited resources on a dangerous journey to the U.S. border, that can only end in rejection, perhaps detention, prosecution, separation from family, and ultimately expulsion to their home countries or to potentially dangerous conditions in Mexico.
To better and more constructively address this untenable and inhumane situation, we now propose “Judges Without Borders.” This group would consist of trained volunteers with prior judicial experience who are willing to dedicate some time to the task of going into venues south of our border, as well as resettlement centers in the U.S., to meet, consider and screen those claiming a right to asylum, to assess their likelihood of success, and to address and advise them accordingly, humanely, and realistically, regarding what most probably lies ahead for them. We also see an opportunity to be of service to overwhelmed NGOs and legal services providers in the United States in screening potential asylum cases and advising those unlikely to succeed on what, if any, other options they might have in individual circumstances.
Ideally, our review panels would consist of three judges: one Democrat, one Republican and one Independent for a balanced, realistic, and comprehensive approach. Interviews would be held in venues that are outside the applicant’s native country, to protect potential asylum seekers from retribution. The information gathered would be confidential, so that it could not be used against the potential applicants.
We believe that by using the skills of retired jurists with high level practical experience in assessing legal claims, Judges Without Borders, could go a long way to relieving the swamped immigration system, providing accurate helpful information about the realities of the U.S. asylum and immigration systems so that individuals can make informed life decisions, reducing the flow of immigrants dangerously entering or attempting to enter the U.S. with false hopes, and correcting misinformation about the U.S. system provided by human smugglers and other illegal operatives who exploit the predicament of desperate individuals. Volunteer judges, who generally are on pensions or some other type of pre-existing retirement income, would serve without pay, receiving only travel food, and lodging expenses.
If our elected leaders really want to solve the humanitarian crisis at the border, we believe that they ultimately must consider other practical and potentially expansive reforms to deal more realistically and humanely with the realities of 21st century migration, and to constructively reform our currently dysfunctional asylum adjudication system and our legal immigration systems which were developed to deal with past realities in worldwide migration that might no longer apply. However, in the interim, we believe that everything possible, including some new, creative, budget-friendly approaches, must be used to alleviate the humanitarian crisis and unnecessary suffering (even death) at our borders.
We recognize that practical solutions will not be easy as there are many corporate interests profiting from private immigration detention, wall-building, river barriers, and all sorts of so-called “border, security technology,” much of which is expensive, yet ultimately ineffective in dealing with the root causes of human migration. The money saved would be better spent on honoring our nation’s solemn pledge to support our allies, with whatever it takes, for as long as it takes, while also honoring our legal and humanitarian commitments to refugees. We must remain a nation that demonstrates humanitarian leadership and can be trusted by the world, to keep our promises, particularly to some of the world’s most vulnerable humans.
Thank you for considering our proposal. We stand ready to help in any way possible.
Respectfully submitted,
Hon. (Ret.) Thomas E. Lister, J.D.
Hon. Paul Wickham Schmidt
U.S. Immigration Judge (Retired)
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Five decades after our graduation from U.W. Law, we’re still thinking “outside the box” of ways to improve our legal system. Retired American judges represent a societal investment in high-level decision-making and problem-solving! Why not keep using those talents in creative ways after regular service on the bench ends?
Unlike ramping up permanent, or even temporary, government hiring, volunteer retired judges, from all systems, are a flexible, low-cost, high-return potential resource that can be quickly deployed and adjusted, redeployed, or “un-deployed” as emergencies arise and are resolved!
BIA Asylum Panel In Action — After three years of ignoring experts on how to fix asylum and the border, the Biden Administration appears ready to join GOP nativists in throwing vulnerable legal asylum seekers and their supporters “under the bus.” Cartels and criminal smugglers undoubtedly are looking forward to “filling the gap” left by the demise of the legal asylum system! They will be “the only game in town’” for those seeking life-saving refuge! There is no record of increased cruelty and suspension of the rule of law “solving” migration flows, although an increase in exploitation and death of migrants seems inevitable. Perhaps, that’s just “collateral damage” to U.S. politicos. Albrecht Dürer, Public domain, via Wikimedia Commons
Dan Kowalski reports for LexisNexis Immigration Community:
[T]he Board found that Sebastian-Sebastian failed to demonstrate a nexus between her particular social groups and the harm she faced. In its denial of CAT protection, the Board found that Sebastian-Sebastian failed to demonstrate that she is more likely than not to be tortured if removed to Guatemala. On appeal, Sebastian-Sebastian argues that the Board’s conclusions were not supported by substantial evidence on the record as a whole. Because the Board’s failure to make necessary findings as to the asylum and withholding of removal claims is erroneous, but its conclusion as to Sebastian-Sebastian’s CAT claim is supported by substantial evidence, we GRANT Sebastian-Sebastian’s petition for review in part, DENY in part, VACATE the Board’s denial of her application for asylum and withholding of removal, and REMAND to the Board for reconsideration consistent with our opinion.”
[Hats off to Jaime B. Naini and Ashley Robinson! N.B., the motion for stay of removal was denied. I have a call in to the attorneys to find out if she was removed…]
Rather than looking for ways to restrict or eliminate asylum, Congress and the Administration should be concerned about quality-control and expertise reforms in asylum adjudication, including a long-overdue independent Article I Immigration Court! Once again, the BIA violates Circuit precedent to deny asylum.
The answer to systemically unfair, (intentionally) unduly restrictive interpretations, and often illegal treatment of asylum seekers by the USG should not be to further punish asylum seekers! It should be fixing the asylum adjudication system to comply with due process, fundamental fairness, best practices, and professionalism!
Casey Carter Swegman Director of Public Policy at the Tahirih Justice Center PHOTO: Tahirih Justice Center
Here’s a statement from the Tahirih Justice Center about the disgraceful “negotiations” now taking place in Congress:
The Tahirih Justice Center is outraged by the news that the administration appears willing to play politics with human lives. These attacks on immigrants and people seeking asylum represent not simply a broken promise, but a betrayal and we urge the President and Congress to reverse course.
“I am gravely concerned that, if passed, these policies will further trap and endanger immigrant survivors of gender-based violence. Selling out asylum seekers and immigrant communities under the guise of ‘border security’ in order to pass a supplemental funding package is absolutely unacceptable,” said Casey Carter Swegman, Director of Public Policy at the Tahirih Justice Center. “And we know the impact of these cruel, deterrence-based policies will land disproportionately on already marginalized immigrants of color. I urge the White House and Congress not to sell out immigrants and asylum seekers for a funding deal.”
Every day, people fleeing persecution – including survivors of gender-based violence – arrive at our border having escaped unspeakable violence. Raising the fear standard, enacting a travel ban, putting a cap on asylum seekers, and expanding expedited removal nationwide (to name just a few proposals that have been floated in recent days) will do nothing to solve the challenges at the southern border and serve only to create more confusion, narrow pathways to humanitarian relief, increase the risk of revictimization and suffering, and punish immigrants seeking safety and a life of dignity.
These kinds of proposals double down on the climate of fear that many immigrants in this country already face on a day-to-day basis and will disproportionately impact Black, Brown and Indigenous immigrant communities.Immigrants should not be met with hostile and unmanageable policies that violate their humanity as well as their legal rights. We can and must do better.
These are “negotiations” in which those whose legal rights and humanity are being “compromised” (that is, tossed away) have no voice at the table as politicos ponder what will best suit their own interests.
U.S. immigration law and policy, including border security and asylum, have nothing to do with Ukraine, NATO, Russia and Putin. Right?
Wrong, if you are a Republican in Congress. Here, let Sen. John Cornyn (R-TX) explain: “I think … Schumer will realize we’re serious … and then the discussions will begin in earnest.”
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If you are still having trouble with the concept, I’ll translate for you: “Yes, we understand and agree that Russia cannot be allowed to take over Ukraine, and we will fund aid to Ukraine, but in exchange, we insist on fundamental changes to our immigration laws to make sure no more Brown people come to America, starting right effing now.” (“Brown,” in this context, means anyone who is poor, Latin American, Asian, African, non-Anglophone…you get the idea.)
How will this play out in the next few weeks? I see three options: 1) Biden and the Dems cave, so the 1980 Refugee Act is scrapped, Dreamers get deported, the southern border is further militarized, and the economy tanks because a good chunk of the workforce is afraid to come to work; or 2) the GOP does a Tuberville and caves; or 3) the Unknown Unknown.
Stay tuned…
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Thanks for telling it like it is, Dan! There is no validity to the GOP’s attempt to punish asylum seekers by unconscionably returning them to danger and death with no process.
The cruelty and threat to life from forcing desperate seekers to wait in dangerous conditions in Mexico, pushing them to attempt entry in ever more deadly locations along the border, detaining them in inhumane substandard prisons in the U.S., and or returning them without meaningful screening by qualified independent decision-makers is overwhelming. That Congress, the Administration, and much of the “mainstream media” choose to ignore, and often intentionally misrepresent, truth and reality about the horrible human and fiscal wastefulness of “border deterrence” doesn’t change these facts!
The Administration’s three year failure to build a functional, robust asylum system at the border with humane reception centers, access to legal assistance, a rational resettlement system, and sweeping, readily achievable, administrative reforms and leadership changes at EOIR and the Asylum Office (as laid out by experts, whose views were dismissed) is also inexcusable.
Yet, the media misrepresents this farce as a “debate.” It’s a false “debate” in which neither disingenuous “side” speaks for the endangered humans whose rights and lives they are bargaining away to mask their own failures and immorality.
Three Lemons By Auguste Renoir (1918} Public Realm The BIA pulls three lemons on an epic judging fail that left a sour taste in the mouths of Fifth Circuit Judges!
Dan Kowalski reports for LexisNexis Immigration Community:
“Although we owe deference to the BIA, that deference is not blind. Here, where the BIA misapplied prevailing case law, disregarded crucial evidence, and failed to adequately support its decisions, we are compelled to grant the petition for review, vacate the immigration court decisions, and remand to BIA for further proceedings.”
[Hats way off to Alison Lo, Jonathan Cooper and Chuck Roth!]
Congrats to this all-star NDPA litigation team. Once again, the expertise and scholarship in asylum and immigration law is on the “outside,” the NDPA, rather than at EOIR where it is so much needed!
Judge Higginbotham is a Reagan appointee. Judge Graves was appointed by Obama. Judge Douglas is a Biden appointee.
Here’s what the “coveted trifecta of bad judging” looks like:
The BIA:
1) misapplied prevailing case law,
2) disregarded crucial evidence, and
3) failed to adequately support its decisions!
My only question is: Did they manage to get the ”A#” right?
Golden nugget: The 5th Circuit recognizes that under the Supremes’ decision in Cardoza-Fonseca:“A ‘reasonable degree’ [for establishing a “well founded fear”] means a ten percent chance.” This “seminal rule” is violated by BIA panels and Immigration Judges across the nation on a daily basis. It is also widely ignored by many Circuit panels.
Unlike the BIA, Judge Higgenbotham carefully and clearly explains how threats other than physical injury can amount to persecution — another “seminal rule” that too many EOIR adjudicators routinely ignore.
By characterizing MS-13’s threats against Argueta-Hernandez and his family as
solely extortion, BIA disregards that he needed only to present “‘some
particularized connection between the feared persecution’” and the
protected ground in which his application for relief relies. . . . Such a rigorous standard would largely render nugatory the Supreme Court’s decision in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).”).
Precisely! Ignoring Cardoza-Fonseca and their own binding precedent in Matter of Mogharrabi is what the BIA does frequently in “manipulating the nexus requirement” to deny meritorious claims to qualified refugees who face real harm! It’s all part of the toxic anti-asylum bias and “any reason to deny culture” that still permeates EOIR under Garland!
The BIA is not allowed to “presume,” as they effectively did in M-R-M-S-, the lack of qualifying motivation in “family based” psg cases and place an undue burden on the respondent to “prove” otherwise.
The panel also reams out the BIA for failure to follow basic rules and precedents requiring a separate CAT analysis.
Unlike the legal gobbldygook, obfuscation, doublespeak, and “canned” language that plagues many BIA opinions, Judge Higginbotham offers a clear, understandable, clinical explanation of asylum law and how it should be applied to what is actually a recurring situation in asylum law!
Reading this very clear opinion, I couldn’t help but feel that it was a panel of “general jurisdiction” Federal Judges from a so-called “conservative Circuit” who understood the complexity and nuances of asylum law, while the BIA Appellate Judges were the “rank amateurs.” This reflects a criticism oft made by my Round Table colleague Hon. “Sir Jeffrey” Chasethat EOIR’s asylum training is grotesquely substandard — far below that readily available in the “private/NGO/academic” sector! What possible excuse could there be for this ongoing travesty at DOJ?
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges. His consistent, outspoken criticism of EOIR’s poor asylum training is proving all too true on a daily basis!
AG Garland continues to show a truly (and disturbingly) remarkable tolerance for poor judicial performance by his subordinates at the BIA. At the same time, he shows little, if any, concern for the deadly devastating impact of that bad judging on human lives and the way it corrodes our entire legal system!
The glaring, life-threatening legal and operational problems at EOIR are solvable. We should all be asking why, after three years in office, a Dem Administration has made such feeble efforts to bring long overdue leadership, substantive, and operational changes to “America’s worst court system?” Well into what was supposed to be a “reform” Administration, EOIR remains a steeped in the “culture of denial and bias against asylum seekers” actively furthered by the Trump Administration and NOT effectively addressed by Garland (although he concededly has made a few improvements)!
Camille J. Mackler Executive Director Immigrant ARC PHOTO: JustSecurity
Camille writes on Linkedin:
I truly believe that when we look back on the evolution of migration trends and responses, 2022 will be remembered as the year we entered a new era of policy making. What began as a political stunt by the Texas Governor has turned into a full-on, ad-hoc secondary resettlement system, fueled by the seeming inability of the Federal Government to take meaningful responsibility to support a cohesive response.
We’ve been seeing this since the first buses began arriving in New York City, when City staff and local non-profits would walk people directly to ticket counters in the bus terminal and help them continue onward travel. This has of course expanded into a full-on operation here, but we’ve also seen similar efforts – all carried out with very little coordination between local governments – in other cities including Washington, DC, Denver, and Chicago.
But its not just within the US – countries in Central America are also getting into the business of transporting migrants “anywhere but here.” Nicaragua, ostensibly to spite the US and to force better policy solutions for the region, is allowing and likely even encouraging charter flights from Cuba and Haiti to help individuals from those countries travel North (making money off tourist visa applications and other concessions along the way). Costa Rica, Panama, Honduras, and Mexico are busing individuals and families North to speed their passage through those countries.
The Los Angeles Declaration, which came out of the 2022 Summit of the Americas, promised to create a regional framework and approach to migration in the Americas, but national governments are moving so slowly that cities are getting ahead of them out of pure necessity. Existing networks (such as Cities For Action, e.g.) turned out to be insufficient to help create the necessary connectivity, so instead we are seeing ad hoc attempts with varying levels of engagement by local non-profits.
And regardless of the level of cooperation from local government, civil society is looking for ways to get involved and minimize the harm caused by this perverse game of “hot potato”. A webinar Immigrant ARC and the National Partnership for New Americans is organizing next week on best practices for rapid responses to new arrivals had over 250 sign-ups within three days of announcing registration was open.
So I guess what I’m trying to say is.. What are we going to do? I can’t remember a time that more clearly highlighted how immigration – at its core – is a local issue. But this is our new normal. Migration is natural and, if global trends are any indication, is not abating any time soon. So our challenge is – how do we treat this as an opportunity, not a challenge? And how do we get our elected officials – from local government all the way to the White House – to remember that we are dealing with human lives, full of promise and courage, and not political pawns to be played with at the whims of those currently in power.
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Follow Camille on LinkedIn.
The “problems” are short term, very visible, and over-hyped by nativist politicos and the media — mainstream as well as far right. Folks wading the river, sleeping in the streets, camping in tents, crowded schools, overwhelmed social services, angry and frustrated local officials are all very much in the public eye and easy to sensationalize for the media.
By contrast, the overwhelming benefits of migration — including refugees and other forced migrants — are more abstract and in the future. Expansion of the the workforce, supply chain improvements, innovations, opportunities created by enriching culture, economic expansion, and robust increases in tax revenues don’t happen overnight. In today’s “instant gratification/instant news” culture, people tend not to pay much attention or give credence to things that aren’t happening in “real time.”
So, the solution is to make the tangible benefits of immigration to everyone in society happen more rapidly and more obviously. “Real life concrete examples” of benefits connect with individuals more than projections and statistics about the future. The challenge would be to:
Get asylum applicants to places where food, shelter, education, legal assistance, and job placement are available;
Concentrate on welcoming locations;
Do it in an orderly fashion so that the benefits of migration are rationally distributed and no particular community feels overwhelmed;
Assist individuals to get them through the legal asylum more rapidly so that those who are successful achieve full legal status, work authorization, and can progress toward green cards and citizenship. Those who aren’t eligible won’t “wander the U.S. forever.”
Neither Congress nor the Administration appear to be interested in making this happen. Indeed, the nativist GOP “border proposals” now being debated would make things demonstrably worse in every way! Yet, too many Senate Dems lack the guts to “just say no” to what are basically “enhanced human rights abuses!”
Therefore, it would be up to NGOs working with receptive state and local governments and taking advantage of things like “public-private partnerships.”
NGOs could set up a “national clearinghouse” and a network of local organizations in welcoming communities where migrants could be placed. In that way, they would be “emulating” that which the Federal Government should, but isn’t, doing, as well as obviating the problems caused by GOP governors who are weaponizing migration to support their nativist “invasion” myths.
It could also provide concrete examples of success in enhancing the quality of life and economic opportunities in communities that welcome migrants. Conversely, it could also take some of the pressure off communities who believe (whether correctly or not) that they are overwhelmed or overburdened.
As to Camille’s question:
And how do we get our elected officials – from local government all the way to the White House – to remember that we are dealing with human lives, full of promise and courage, and not political pawns to be played with at the whims of those currently in power.
Unfortunately, I don’t see that happening without a different set of elected officials. The facts are out here. Politicos primarily on the right, but also too many Dems, have gone out of their way to ignore the truth about asylum seekers because they believe it suits their short-term political interests. That’s a tough nut to crack without a new political movement and some new faces of power.
Even now, too much of the “border debate” is vociferous, but one-sided and ill informed. As one successful NGO at the border recently said:
If you really want to know what’s happening on the Mexican side of the border, follow the humanitarian groups like the Sidewalk School, who are working there,” [Felicia] Rangel-Samporano says. “We are there every day, seven days a week.”
Felicia Rangel-Samparano Director The Sidewalk School PHOTO: The Sidewalk School
Fat chance for a visit to the Sidewalk School or any other humanitarian organization at the border from those in power, or, for that matter, for the “mainstream media” to show much interest in injecting truth and expertise into their border reporting. Organizations like TheSidewalk School appear to have the keys to successful border and asylum policies. But, they will need help from their friends — lots of it!
Don’t expect it from Dems on the Hill. As cogently pointed out by Greg Sargent in today’s WashPost, they are tuning out experts like Camille and Felicia Rangel-Samparano — folks with real solutions that would improve border security while actually furthering human rights — in favor of “negotiating” (for war funding abroad) with those driven by the neo-fascist anti-human-rights agenda of Miller and Trump. As stated by Greg:
Sen. Thom Tillis wants you to know that he’s very “reasonable.” That’s the word the North Carolina Republican used with reporters this week while describing immigration reforms that the GOP is demanding from Senate Democrats in exchange for supporting the billions in Ukraine aid that President Biden wants. But the demands from Tillis and his fellow Republican leading the talks, Sen. James Lankford of Oklahoma, are not reasonable at all — they’re following Donald Trump’s playbook. Under the guise of seeking more “border security,” they’re insisting on provisions that would reduce legal immigration in numerous ways that could even undermine the goal of securing the border. According to Democratic sources familiar with the negotiations, Republican demands began to shift soon after the New York Times reported that in a second Trump term, he would launch mass removals of millions of undocumented immigrants, gut asylum seeking almost entirely, and dramatically expand migrant detention in “giant camps.” As one Senate Democratic source told me, Republicans started acting as though Trump and his immigration policy adviser Stephen Miller were “looking over their shoulders.”
How vile is this “debate” about “sacrificing” other (vulnerable) humans’ lives and rights — things that neither party has a right to use as “bargaining chips?” The GOP, a far-right party that basically has never seen a bomb it didn’t want to drop or a weapon it didn’t want used on some “enemy,” is threatening to withhold weapons for a war against Russian aggression abroad unless Dems agree to kill more folks seeking refuge (ironically, many fleeing from the far-left government of Venezuela) at our border!
In “normal” times, Dems would stand firm for humanitarian assistance, better border processing, and reasonable resettlement assistance (to end the Abbott/DeSantis travesty). But there’s nothing “normal” or remotely “reasonable” about the farce going on in Congress!
It’s remarkable how little attention the “mainstream media” focuses on those working hard and solving problems, on a daily basis, at the border, like the folks running the Sidewalk School! Compare publicity for the “good guys” who are actually solving problems and saving lives with the amount of time and attention given to GOP nativist politicos spreading anti-immigrant myths and demanding yet more cruelty and expensive, deadly, proven to fail, deterrence!🤯
Jennifer Habercorn and Burgess Everett report for Politico:
A growing number of Senate Democrats appear open to making it harder for migrants to seek asylum in order to secure Republican support for aiding Ukraine and Israel.
They are motivated not just by concern for America’s embattled allies. They also believe changes are needed to help a migration crisis that is growing more dire and to potentially dull the political sting of border politics in battleground states before the 2024 elections.
“Look, I think the border needs some attention. I am one that thinks it doesn’t hurt,” said Sen. Jon Tester (D-Mont.), one of the Senate’s most vulnerable Democrats in next year’s midterm election.
Tester said he’s eager to see if a bipartisan group of negotiators can come up with an agreement on a policy issue as elusive as immigration. While he refused to commit to supporting a deal until he sees its details, he didn’t rule out backing stronger border requirements. And he’s not alone.
“I am certainly okay with [border policy] being a part of a national security supplemental,” said Sen. Tammy Baldwin (D-Wis.), another Democrat facing reelection next year. On changes to asylum policy, she said: “I would like to see us make some bipartisan progress, which has eluded us for years. The system’s broken.”
. . . .
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Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings Law
Meanwhile, the GOP’s proposal to essentially end asylum — going well beyond the unfair and unduly restrictive policies already imposed by the Administration — has been condemned in the strongest possible terms by human rights and immigration experts. For example, here’s what Professor Karen Musalo, Founder & Director of the Center For Gender & Refugee Studies at Hastings Law, and an internationally-renowned human rights expert, said yesterday:
CGRS Urges Senators to Reject GOP Push to End Asylum
Nov 28, 2023
As negotiations over President Biden’s supplemental funding request continue, the Center for Gender & Refugee Studies (CGRS) urges lawmakers to reject Republican-led proposals that would upend the U.S. asylum system and eviscerate life-saving protections for people fleeing persecution and torture. If enacted, they would erase our longstanding tradition of welcoming asylum seekers and lead to the wrongful return of refugees to countries where they face persecution or torture, in violation of international law.
“These radical proposals amount to a complete abandonment of the U.S. government’s legal and moral obligations to extend protection to refugees fleeing persecution,” Karen Musalo, Director of the Center for Gender & Refugee Studies (CGRS), said today. “In practice, they would result in the persecution, torture, and deaths of families, children, and adults seeking safe haven at our nation’s doorstep. It is utterly shameful that Republican lawmakers are attempting to exploit the budget negotiations process to advance an extremist, anti-immigrant and anti-refugee agenda. The lives of people seeking asylum are not political bargaining chips. We urge lawmakers to join Senator Padilla and other congressional leaders in rejecting these cynical proposals.”
Read the complete Politico article at the first link above.
To me, expressions like “attention” and “bipartisan progress” used by Dem politicos in connection with the Southern border are “code words” for appeasing the GOP nativist right by agreeing to “more border militarization” and “abrogation of the human rights of refugees and asylees!”
I see little “attention” or “bipartisan progress” being discussed on measures that, unlike the GOP “end of asylum/uber enforcement” proposals, would actually address the humanitarian situation on the border (and elsewhere) in a constructive and positive manner:
More, better trained, expert Immigration Judges and Asylum Officers;
Organized resettlement assistance and expedited work authorization for asylum applicants;
Legal assistance for asylum seekers;
An independent Article I Immigration Court;
Revision of the refugee definition to more clearly cover forms of gender-based persecution;
Increased DHS funding for sophisticated undercover and anti-smuggling operations targeting smugglers and cartels;
Adjustment of status for long-term TPS holders.
These are the types effective measures that have long been recommended by experts, yet widely ignored or even directly contravened by those in power. The negative results of “enforcement only” and “extreme cruelty” at the border are obvious in today’s continuing humanitarian situation.
The idea that a forced migration emergency will be “solved” by more draconian enforcement, eradication of human rights, and elimination of due process, as touted by GOP nativists, is a preposterous! Yet, many Dems seem ready, even anxious, to throw asylum applicants and their advocates under the bus — once again!
Unhappily, Congress and the Biden Administration have paid scant attention to the views of experts and those actually involved in relieving the plight of asylum seekers at the border. The politicos continue to dehumanize and demean forced migrants while stubbornly treating a human rights emergency as a “law enforcement crisis” that can be solved with more cruelty and repression.
As experts like Karen Musalo continue to point out, experience shows us that more deterrence and harshness will only make things worse, squandering resources and attention that could more effectively be used to address and alleviate unnecessary human suffering and finally making our refugee and asylum systems function in a fair and efficient manner.
Yet, politicos are more interested in grandstanding, “victim shaming,” and finger pointing than in achieving success and harnessing the positive potential of forced migration for countries like ours fortunate enough to be “receivers” rather than “senders!”
Ending asylum will NOT stop refugees from coming — at least in the long run. Every Administration manipulates or misrepresents statistics to show immediate “deterrent” effect from their latest restrictionist gimmicks (some ruled illegal by Federal Courts). But such “bogus successes” are never durable!
As the current situation shows, decades of failed deterrence merely creates new flows, in different places, piles up more dead migrant bodies, and surrenders the control of border policies to smugglers and cartels. That, in turn, fuels calls by restrictionists and their enablers for harsher, crueler, and ever more expensive (and profitable to some) sanctions imposed on some of the world’s most vulnerable humans.
If asylum ends, America will find itself with a larger, less controllable reality of a growing underground population of extralegal migrants. Contrary to nativist alarmism, this population has remained largely stable recently.
But, that will change as the legal asylum system contracts. Right now, most asylum seekers either apply at ports of entry (often undergoing unreasonable and dangerous waits and struggling with the dysfunctional “CBP One App”) or voluntarily surrender to CBP shortly after entering between ports. The GOP and Dem “go alongs” are determined to change that so that those seeking refuge will have no choice but to be smuggled into the interior where they can become lost in the general population.
This, in turn, will fuel demands by GOP White Nationalists and their Dem enablers for even more expensive and ultimately ineffective border militarization. It will also turn DHS into an internal security police.
Unable to “ferret out” and remove the underground population — because, in fact, they look, act, and are in many cases indistinguishable from native-born Americans and often perform essential services — they will concentrate on harassing and spreading fear among minority populations in America. Also, Trump has also promised that if re-elected, he will abuse his Executive authority to punish his critics and political opponents. Further empowerment of DHS in the interior would be handy in this respect.
Underground populations are also more susceptible to exploitation — another unstated objective of GOP restrictionist policies. What’s better for employers than a disenfranchised workforce who can be fired and turned over to DHS if they demand fair wages or better treatment?
Senate Dems appear to be on the verge of doing precisely what Karen and other experts have repeatedly warned against: using the lives and rights of asylum seekers as a “political bargaining chip” to appease the GOP right and secure military funding for Israel and Ukraine. It’s exactly what happens when experts and those with “on the ground” experience dealing with forced migrants are “locked out of the room” where decisions are made!
While White Nationalist neo-fascists like Stephen Miller and his cronies have remained “at the heart” of GOP policy making on eradicating human rights and punishing asylum seekers, lifetime experts on human rights and asylum find themselves reduced to the role of “outside critics” and “kibitzers” as the Dem Administration and Senate Dems bumble along on the border and human rights. That’s a shame that will certainly diminish and threaten the future of American democracy! And, it’s hard to see how appeasing the GOP restrictionist right will help Dems in 2024!
The Northern Virginia doctor knows at least that much about his situation. He knows he is no longer considered a citizen of the United States — the place where he was born, went to school and has practiced medicine for more than 30 years — and that he also belongs to no other place.
“I’m in limbo,” he told me on a recent afternoon.
In the past few years, there have been many passport-renewal nightmare stories, with processing delays forcing people to beg, lose sleep and miss once-in-a-lifetime trips. But what Sobhani has experienced this year after trying to renew his passport is uniquely unmooring.
As he tells it, when he sent in an application for a new passport in February, he had no reason to expect he’d face any difficulties. He had renewed his passport several times previously without problems. This time, it was set to expire in June, and he wanted to make sure he had a valid one in hand before his family took a trip in July.
But he did not receive a new passport. Instead, at the age of 61, he lost what he had held since he was an infant: U.S. citizenship.
A letter from a State Department official informed him that he should not have been granted citizenship at the time of his birth because his father was a diplomat with the Embassy of Iran. The letter directed Sobhani to a website where he could apply for lawful permanent residence.
“This was a shock to me,” said Sobhani, who specializes in internal medicine. “I’m a doctor. I’ve been here all my life. I’ve paid my taxes. I’ve voted for presidents. I’ve served my community in Northern Virginia. During covid, I was at work, putting myself at risk, putting my family at risk. So when you’re told after 61 years, ‘Oh there was a mistake, you’re no longer a U.S. citizen,’ it’s really, really shocking.”
. . . .
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Read Theresa’s full article at the link.
Months for a routine passport renewal? If you’re lucky! The DOS has struggled to cope with a totally predictable and largely self-aggravated “crisis!” Who would have thought that after several years of pandemic isolation and with a booming economy, Americans would start traveling again in record numbers? Probably, everybody in America except ivory tower DOS bureaucrats who failed to prepare for the obvious and to elevate public service over intrasigence!
As a veteran of more than four decades of dealing with the immigration bureaucracy — from both the inside and outside — I can testify to the truth of the adage that “Some cans of worms are better left unopened!” (Corollary: “If you open it, you own it!”) Where’s the common sense here? Lost in the bureaucratic fog, 🌫️ I guess!
Three principles are at the core of Andy’s article:
. . . .
International Obligations and Refugee Protection
Key international obligations regarding refugees also play a crucial role in shaping the discourse. The United States, as a signatory to the 1967 Protocol to the United Nations Convention relating to the Status of Refugees, is bound by several obligations, including:
Non-refoulement: Prohibiting the return of refugees to countries where they would face persecution or harm based on their race, religion, nationality, political opinion, or membership in a particular social group.
Access to asylum procedures: Ensuring a fair and accessible process for individuals to seek asylum and present their claims for protection.
Non-discrimination: Preventing discrimination against refugees based on factors such as nationality or place of entry.
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Read the complete article at the link!
I think that the U.S. is in violation of all three of these essential, mandatory legal obligations.
Gimmicks like Title 42, “Remain in Mexico,” coercive detention, “CBP One,” and artificial roadblocks for those applying between ports of entry have violated and continue to violate our “non-refoulment” obligation.
These provisions, along with conducting interviews in detention settings, improperly limiting access to representation, and “expedited dockets” to limit the ability to prepare and present claims are examples of violations of our obligation to provide “fair access” to our asylum system.
And, by intentionally designing our system to discourage and deny applicants of color from the Western Hemisphere, Africa, and Muslim nations, and imposing illegal higher burdens on those not applying at ports of entry, we clearly are violating the “non-discrimination” requirement.
The GOP answer is simply to double down on the violations and abrogate our domestic and international obligations. While the Biden Administration at least nominally acknowledges these obligations, their actions and policies, some actually carried over or borrowed from the Trump Administration, blatantly undermine these principles of protection.
Indeed, the whole “movement” by both parties to use the refugee/asylum system for “rejection and deterrence” rather than “enhanced protection” is a “bipartisan legal and moral travesty!”
What if our “number one priority” was what it should be: Establish a world-class, expert, efficient, robust, generous system that is driven by, and true to, these three governing obligations?
Only after achieving that can we discuss and achieve “border security” in a realistic and effective manner! And, it couldn’t possibly be more expensive, in both fiscal terms and human lives cost, than decades of costly failed deterrence gimmicks and schemes! It’s a case of badly screwed up priorities aggravated by political cowardice!
Institutionalized cruelty, deterrence, and unlawful behavior by our Government has failed to create order at the border and has demonstrably destroyed or diminished human lives. Why not give adherence to laws and to humanitarian values and principles a chance?🤯
We can diminish ourselves as a nation, but it won’t stop human migration!
Katharina Obser Director of Migrants Rights and Justice Women’s Refugee Commission PHOTO: Women’s Refugee Commission website
Close to San Diego, California, hundreds of people seeking asylum are being held in deplorable conditions. So-called open-air detention sites are desolate areas in the US at or close to the US-Mexico border, where men, women, and children seeking protection wait outside, exposed to the elements. Nonprofit organizations and volunteers do their best to provide desperately needed water, meals, snacks, first aid, diapers, clothing, and blankets.
Last month, the Women’s Refugee Commission traveled to San Diego and Tijuana, Mexico, to assess the conditions that people seeking asylum at the US-Mexico border face. Our short report, released today, is heartbreaking. We heard about families being separated. About people scared to go to hospital for treatment in case they aren’t reunited with their loved ones. And about rampant exploitation of people seeking asylum as they travel through Mexico to reach the United States.
We will use our findings to advocate that the Biden administration rescind its asylum ban; ends the use open-air detention sites; and that Congress significantly increase investment in organizations providing short-term aid, housing, and services. And we will continue to call for those seeking asylum to be treated humanely and with dignity.
Katharina Obser
Director, Migrant Rights and Justice Program
Compare this with the “border BS” spread by the GOP and the media that ignores the human and legal traumas at the border and falsely insists that competently administering domestic and international refugee and asylum laws is “mission impossible” for the world’s most prosperous superpower.
It appears that the politicos are too busy spreading lies and myths about the most vulnerable among us to solve problems in a humane, reasonable, and efficient manner!
