"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Courtney Greene Accredited Representative Catholic Charities of Central Texas VIISTA Villanova Grad PHOTO: Linkedin
Courtney writes:
I went to my first merits hearing with a client yesterday in San Antonio and she was granted asylum!! Thank you for your continued advocacy for due process and your participation in my training as a VIISTA student. I feel so thankful that there are people like you, ensuring that people experience justice after so much suffering!
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Thanks, Courtney. It’s YOU, and others like you, getting the job done. Saving individual lives every day!
As my friend and former partner at Fragomen Cynthia Lange pointed out at a recent PLI conference, if every attorney or accredited representative who cares about justice saves just one life over the next four years, that’s thousands of lives saved, including family members! And, that will inspire others to do the same. Eventually, it can be tens of thousands or hundreds of thousands, perhaps millions, of lives saved!
As I’ve previously observed:
Rather than looking for expensive ways to diminish asylum-seekers’ rights and inflict more cruelty, Congress and the Administration should be investing in cost-effective programs like VIISTA that actually work, protect rights, and have promise for the future!
Building hope rather than intentionally causing despair!😎 Why don’t our public officials “get it?”
So much of the suffering that Courtney references is unnecessarily caused, compounded, or aggravated by our own nation’s lousy, inhumane, and often scofflaw asylum policies and procedures!
“What the government is essentially asking us to do is agree that certain ‘analogous’ state crimes must count as rape and then reverse engineer a definition to make sure they do.”
Sure sounds like the kind of “any reason to deny” (non) logic that has been allowed to flourish at EOIR under Garland. And the 8th Circuit actually sounded pleased to be freed from the necessity under Chevron of inevitably “rubber stamping” the least reasonable, most “pro enforcement” interpretations offered up by the Government under Chevron. Garland could and should have changed that, but chose not to!
Many congrats to the “Youth Brigade” of the NDPA!
Some consider Garland’s failure to hold Trump accountable for January 6 to be his greatest failure. That’s a complex issue clouded by his decision to basically distance himself from the process. Undoubtedly, he was an overly cautious and weak leader!
But, I think history ultimately will see his failure to reform the Immigration Courts and to stand up for the legal and human rights of asylum seekers and other immigrants as his worst shortcomings. It actually continues to cost lives, squander resources, allow lies and negative attitudes toward vulnerable legal asylum seekers to be “normalized,” and help pave the way for Trump 2.0.
The Board’s holding in Matter of Fernandes, 28 I&N Dec. 605, 610–11 (BIA 2022), that an objection to a noncompliant notice to appear will generally be considered timely if raised prior to the close of pleadings is not a change in law, and thus Matter of Fernandes applies retroactively.
“In a decision dated October 24, 2022, the Immigration Judge granted the respondents’ motion to terminate their removal proceedings based on a noncompliant notice to appear. The Department of Homeland Security (“DHS”) has appealed, arguing that the Immigration Judge erred in not applying Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022). The appeal will be sustained, and the record will be remanded. … Our guidance in Matter of Fernandes as to the timeliness of the claim-processing rule objection to a noncompliant notice to appear applies retroactively. The respondents did not object to the missing information in their notices to appear before the close of pleadings and have not otherwise demonstrated that their objection should be considered timely. Thus, they have forfeited their objection. We will sustain DHS’ appeal, vacate the Immigration Judge’s decision, and remand for further proceedings.”
🇺🇸⚖️🗽😎BRINGING HOPE 🙏& LIGHT💡: ROUND TABLE🛡️, NDPA ALL-STARS ✨HELP CA 2 👩🏽⚖️CORRECT YET ANOTHER TOTAL SCREW-UP BY GARLAND’S DOJ! — This time EOIR blew competency determination, couldn’t properly apply own precedents to achieve due process, fundamental fairness!🤯
Hon. Cecelia M.Espenoza Former Appellate Immigration Judge, BIA Source: Denverdemocrats.org
DISTRICT 4:
Candidate
Total Votes
% Votes
Cecelia Espenoza (D)
20,806
80.5%
Jack Daus (R)
5,042
19.5%
SOURCE: AZCENTRAL.com
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You go, my friend and colleague! Thanks for running and for standing up for a better, fairer America! Building a “values based movement” starts at the “grass roots level.” You’re getting it done, Cecelia!
With lots of help from our friends, the Round Table has become a “Powerful Force of Nature,” carving out a spot for due process even along the most wild and rugged coasts! PHOTO: PWS Maine Collection“Our Fearless Leader,” Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Sir Jeffrey” Chase forwarded this note of appreciation from one of the all-star advocates who represented The Round Table in drafting an amicus brief:
You, Paul and the Roundtable played a central role in this decision. Beyond the persuasive amicus brief, your group—along with . . . . —gave me the confidence to pursue the due process claim . . . . Your advocacy is admirable and much needed; it also has an impact beyond just the individual cases you support as an amicus. . . . . [T]his case has been one of the most impressive collaborative efforts I’ve had the opportunity to be involved with [in my decade of professional experience.] Thank you again for your interest and support of this important case, as well as your work in this space more broadly.
This is also a great space to once again thank all of the top flight legal talent, law firms, NGOs, and legal clinics that have donated their time and talents pro bono to the cause of due process, equal justice for all, and advancing best practices. Indeed, you have “given us a voice” — one that has proved to have an outsized impact on our American justice system.
Working with our wonderful“partners in due process and professional excellence” has been a total joy and fulfilling career opportunity for each of us! We never, ever forget what we owe to your skill and generous donation of time, resources, and effort. Just as we are committed to insuring that all individuals appearing in Immigration Court — the essential “retail level” of our justice system — have a right to be heard, YOU have insured that WE will be heard — loudly and clearly for a long time to come! Thank you again from the bottom. of our “collective hearts!”💕
Dr. Alicia Triche Superlawyer, Co-Editor, immigrationcourtside.com Memphis, TN
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Featured cases:
Tista-Ruiz de Ajualip v. Garland, 114 F.4th 487 (6th Cir. 2024)
Al Otro Lado v. Mayorkas, ___ F.4th ___, 2024 WL 4551637 (Oct. 23, 2024).
MEANINGLESS WORDS. …It is almost universally felt that when we call a country democratic we are praising it: consequently the defenders of every kind of regime claim that it is a democracy, and fear that they might have to stop using that word if it were tied down to any one meaning… George Orwell, Politics and the English Language.
I draft this first Courtside during a pivotal moment in US History. Readers can barely power up any screen, anywhere, without seeing dire warnings that the “rule of law” is on the ballot; that the “rule of law.” Hangs on a string. But, those who advocate for the integrity of US refugee law have seen that string threaten to come unraveled for almost a decade. And in this first of blogs, I offer two unequivocal rays of hope. In two of its most vulnerable places—possibly even the most unlikely of places—the fragile thread has endured; the rule of law has held fast.
When I reference this “rule of law,” I’m invoking the idea that “words are supposed to carry meanings,” and great “danger lies in straining a text beyond the outermost limits of its natural elasticity.”[i] When words lose meaning, we don’t have rule of law, we have rule of people, with all that implies. At its core, protection for US refugees is not people-based; it is statutory. It is comprised not by executive or political policies, but in the words of the US Immigration and Nationality Act. Yet, as the subject of “immigration” endures focus-glare equal to the Eye of Sauron, in a constant stream of press, litigation, and politicization, the legal nature of the words in the statute become ever more vulnerable to deterministic and bad-faith interpretation.
Because they involve some of the most controversial aspects of current immigration law—that is, the arrival and protection of the most vulnerable of the world’s refugees—the words at issue in today’s two cases are particularly vulnerable to political appropriation. As seen in our first case, Tista-Ruiz de Ajualip, survivors of severe domestic violence seek protection from persecution on account of “membership in a particular social group,” which is referenced at INA Section 101(a)(42)(A). The phrase originated in the 1951 United Nations Convention Relating to the Status of Refugees,[ii] and it is well known among scholars that its definition was not meaningfully discussed during drafting history of the Convention. Indeed, it was not until the final drafting phase, at the Geneva Conference, that the Swedish delegate, Monsieur Petren, proposed (without further explanation) that “membership of a particular social group” should be added to the definition of refugee.[iii] The amendment did pass, but the transcriber of the summary records indicates no discussion whatsoever regarding what “particular social group” meant to the delegate who approved its addition.[iv]
This flexible nature of the language of “particular social group” has a good side, for it has made room for the phrase to be interpreted consistently with developing human rights norms, especially regarding the rights of women. Our illustrious Courtside founder, when he was Chairman of the BIA, initiated the use of the phrase for gender-based protection in the landmark case Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996). As Judge Schmidt explains it, Kasinga constructed a PSG that the Board, sitting en banc, was willing to accept as a whole. And, key to the case was the central tenet that “FGM can be a basis for asylum.” 21 I&N Dec. at 358.
Years later, after ongoing advocacy by Karen Musalo, Deborah Anker and others, PSG also became the vehicle through with the Board (in effect) ruled that severe domestic violence, when sufficiently unchecked by the State, may be a legitimate ground for asylum. Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). But, especially in the domestic violence context, the case “law” regarding PSGs was vulnerable to an ongoing, seemingly endless parade of developing rules and “interpretations,” many of which seemed to defy the normal rules of logic.[v] In 2018, the Board sacked refugee attorneys with an affirmative duty to articulate their PSGs—or lose them—in Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018). This has led to attorneys regularly providing 5, 10 or even more “particular social groups,” in effort to provide the one an Immigration Judge might hook onto. It has led to PSG formulations that might sound less than perfect, to put it mildly, such as the “Salvadoran women of childbearing age” proposition that unexpectedly led to the good result in Zometa-Orellana v. Garland, 19 F.4th 970 (6th Cir. 2021). And, most importantly for this Blog, it has provided an opportunity for some executive adjudicators at EOIR to engage in decision making that arguably crosses the line from legal to political, divorcing too far from the words at hand, the words contained in the law itself.
This is why what the Sixth Circuit did a few weeks ago in Tista-Ruiz de Ajualip is so very remarkable. The Court’s central holding is that the group “victims of domestic violence” does not, on its face, violate what’s known as the “circularity” rule. The reasoning of the Court is what’s so remarkable, for it constitutes a strong assertion of integrity of the rule of law in the refugee context. The Court holds that no PSG can be dismissed “in a perfunctory manner,” solely by looking at the words used in formulating it. 114 F.4th at 498. Invoking Zometa-Orellana’s emphasis on “international obligations”, the Court says that any PSG analysis must utilize an independent review of the record “as a whole”, including country conditions. Id..
The case doubles down on what I (frankly) thought was the most vulnerable aspect of Zometa-Orellana v. Garland: that the point of a domestic-violence based adjudication is to comply with US “international obligations” to protect refugees (id. at 498) (italics in original (!)) The Court also repeats that failure to “exactly delineate a convoluted legal concept” (i.e., PSG), is not a grounds for denial of refugee protection (id. at 501), and that there is an “independent role” (read, power) for BIA and Immigration Judges to assess domestic-violence based claims consistently with international obligations—particularly during assessment of the proposed PSG. (id. at 500–502.) In other words, the Court doubles down on the admonition that had already been implied in Zometa-Orellana: refugee law, is, law; the words contained therein are not to be used as a pretext to deny protection to domestic violence survivors who otherwise qualify as refugees under the CSR; and if the ”decision” being reviewed seems to do so, it will be reviewed, substantively, for signs of having crossed that line.
A final note for any advanced PSG practitioners who might be tuned in—there’s a good argument, in my opinion, that Tista-Ruiz can be invoked to assert that, as long as any one PSG is offered up in compliance with W-Y-C-/H-O-B-, , the IJ and/or the Board can delineate any cognizable group that it finds to exist on the record. It’s worth remembering here that, in Kasinga, the PSG formulated by the Board, was “very similar to” but not the exact “formulation suggested by the parties.” 21 I&N Dec. at 365.
In these blogs, I do intend to stay in my own lane, which is individual removal defense. But I can’t help noting that, as I went to press on this one, the Ninth Circuit also issued Al Otro Lado v. Mayorkas, ___ F.4th ___, 2024 WL 4551637 (9th Cir. 2024). The case is a complex, substantial class-action suit that is deserving of its own individual treatment in another context. But it also contains at least one prime example of a Court giving meaning to words. The Ninth Circuit stood fast in the language and purpose of the INA, even in the context of border arrivals—the group in the hottest of flames under Sauron’s eye. Under INA Section 208(a)(1), any non-citizen “who arrives in the United States…may apply for asylum” under INA Section 208(a)(1). In one of several controversial iterations of a “metering” program, Ports of Entry run by US Customs and Border Patrol had been sending arriving asylum seekers back into Mexico, claiming they had not yet “arrived” in the country. The Ninth Circuit “conclude[d] that a noncitizen stopped by U.S. officials at the border is eligible to apply for asylum under” § 208(a)(1). Al Otro Lado v. Mayorkas, ___ F.4th ___, 2024 WL 4551637, *10 (Oct. 23, 2024)
One of the intrepid litigators of Al Otro Lado, Melissa Crow, issued a statement in reaction to the decision, and I will let her observations take us out:
“Our government has a legal duty to provide a fair and meaningful legal process to all people seeking safety at our border, no matter what. Border agents cannot arbitrarily turn people back to Mexico, a practice that violates our laws, exacerbates chaos at the border, and places refugees directly in harm’s way.”[vi]
[i] Ben Saul, Defining Terrorism in International Law 55 (2006) (citations omitted).
[ii] July 28, 1951, 189 U.N.T.S. 150. The US is bound by Articles 2 through 34 as a party to the 1967 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6224, 606 U.N.T.S. 267 (‘Protocol’). A Convention refugee is a person who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion…is unable or…owing to such fear, is unwilling to return” home. CSR Art. 1A(2).
[iii] Terje Einarsen, “Drafting History of the 1951 Convention and the 1967 Protocol”, in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 37, [52] (2011), citing UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons: Summary Record of the Twenty-second Meeting, 26 November 1951, A/CONF.2/SR.22, available at: http://www.refworld.org/docid/3ae68cde10.html [accessed 11 April 2016].
[v]See, e.g., Karen Musalo, A Short History of Gender Asylum in the United States: Resistance and Ambivalence May Very Slowly Be Inching Towards Recognition of Women’s Claims, Refugee Survey Quarterly, Vol. 29, No. 2 (2010); Blaine Bookey, Gender-Based Asylum Post-Matter of A-R-C-G-: Evolving Standards and Fair Application of the Law, 22 SW J. Intl. L 1, 4 (2016). In addition, BIA decisions were and are subject to direct alteration by the Attorney General, and in 2018, Jeff Sessions blatantly attempted to end “claims pertaining to domestic violence or gang violence perpetrated by non-governmental actors” as a grounds for asylum. Matter of A-B-I, 27 I&N Dec. 316, 310 (A.G. 2018), vacated, Matter of A-B-III-, 28 I&N Dec. 307 (A.G. 2021).
Many congrats to all who worked on this multi-year, intensive, cooperative effort to achieve justice that should never, ever have gotten to this point IF EOIR and OIL were competently staffed and administered by Garland! Interesting, that even the most “conservative” Circuits often tire of the constant unprofessional, “deny protection for any reason” nonsense shoved at them by Garland’s DOJ. Perhaps, that’s a “basis for hope” as we appear to be moving into a wasteful “bipartisan political world of mindless and lawless restrictionism and denial of fundamental rights to migrants.” Here’s hoping for the best!
Well, friends, since “inception” on December 22, 2016:
Neatly 7 1/2 years elapsed;
Three different Administrations;
5,526 posts (including this one);
1,152 comments;
43 “Pages;”
403 subscribers;
Over 1,000,000 “views” (estimated);
More than 140,400 “blocks” by my hard-working “spam catcher!”
It’s time for me to take a break from Courtside to “rest, refresh, and refocus” as they say in the “sabbatical business.” After all, I’ve been “retired” since June 30, 2016, going on eight years!
To mark the occasion, here’s a “reprint” of one of my favorites from that first month, December 2016:
“Immigration advocates have repeatedly criticized the Obama administration for its increased reliance on detention facilities, particularly for Central American families, who they argue should be treated as refugees fleeing violent home countries rather than as priorities for deportation.
They also say that the growing number of apprehended migrants on the border, as reflected in the new Homeland Security figures, indicate that home raids and detentions of families from Central America isn’t working as a deterrent.”
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The “enforcement only” approach to forced migration from Central America has been an extraordinarily expensive total failure. But, the misguided attempt to “prioritize” cases of families seeking refuge from violence has been a major contributing factor in creating docket disfunction (“Aimless Docket Reshuffling”) in the United States Immigration Courts.
And, as a result, cases ready for trial that should have been heard as scheduled in Immigration Court have been “orbited” to the end of the docket where it is doubtful they ever will be reached. When political officials, who don’t understand the Immigration Court and are not committed to its due process mission, order the rearrangement of existing dockets without input from the trial judges, lawyers, court administrators, and members of the public who are most affected, only bad things can happen. And, they have!
PWS
12/31/16
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True today as it was then!
🇺🇸 Thanks for reading and engaging, best wishes and, of course, “Due Process Forever!”
Since choice of law is dependent on venue in Immigration Court proceedings, the controlling circuit law is not affected by a change in the administrative control court and will only change upon the granting of a motion to change venue. Matter of Garcia, 28 I&N Dec. 693 (BIA 2023), followed.
“In a decision dated October 24, 2023, the Immigration Judge denied the respondent’s application for deferral of removal under the regulations implementing the Convention Against Torture (“CAT”). The respondent, a native and citizen of Morocco, has appealed that decision. The Department of Homeland Security (“DHS”) has not responded to the appeal. Because we agree with the respondent that additional fact-finding and analysis are needed and the Immigration Judge misapplied choice of law precedent, we will remand these proceedings for the entry of a new decision. … The record reflects that the respondent has been detained at the Moshannon Valley Processing Center (“Moshannon”) in Philipsburg, Pennsylvania, throughout these proceedings. The proceedings commenced with the filing of a Notice to Appear (“NTA”) on April 18, 2023, at the Cleveland, Ohio Immigration Court, which is within the jurisdiction of the United States Court of Appeals for the Sixth Circuit. … After the respondent’s individual hearing on October 20, 2023, the Immigration Judge applied Third Circuit law and denied deferral of removal under CAT. … The respondent argues that the Immigration Judge erroneously applied Third Circuit law rather than Sixth Circuit law. We review this issue de novo. See 8 C.F.R. § 1003.1(d)(3)(ii) (2020). For the reasons discussed below, we agree with the respondent that the Immigration Judge applied the incorrect circuit’s law. … On remand, the Immigration Judge should reevaluate the respondent’s claim under Sixth Circuit law and apply relevant Board precedent, with consideration to the respondent’s appellate arguments concerning the respondent’s gender identity and sexual orientation. See Matter of C-G-T-, 28 I&N Dec. 740, 745 (BIA 2023) (explaining that “when considering future harm, adjudicators should not expect a respondent to hide” the respondent’s sexual orientation).”
Great job, Jennifer! Once again, it’s worth asking ourselves how successful arguments of this kind could ever be made by an unrepresented respondent. If, as is painfully obvious to even a casual observer, the answer is “they couldn’t,” then where is the due process in an overloaded, corner-cutting court system where lack of representation is actually on the increase, despite truly heroic efforts by the private and pro bono bars?
I also find the last sentence of the above summary very helpful. While it certainly states the correct rule regarding sexual orientation cases, my sense is that this part of the Matter of C-G-T- precedent is often ignored at the Immigration Court level and not always corrected by the BIA on appeal. So, it’s certainly worth re-emphasizing!
The BIA’s opinion was written by Appellate Immigration Judge Gorman for a panel that also included Appellate Immigration Judge Greer and Temporary Appellate IJ Crossett.
The 1924 Immigration Act vilified, dehumanized, and barred many of those immigrants who have made America great, like Italian Americans being demeaned in this cartoon. Yet, some descendants of those unfairly targeted appear oblivious to the mistakes of the past and willing to inflict the same immoral lies, harm, and suffering on today’s migrants. IMAGE: Public RealmEduardo Porter Columnist and Editorial Board Member Washington Post PHOTO: WashPost
“I think that we have sufficient stock in America now for us to shut the door.”
That sounds like Donald Trump, right? Maybe on one of his campaign stops? It certainly fits the mood of the country. This year, immigration became voters’ “most important problem” in Gallup polling for the first time since Central Americans flocked to the border in 2019. More than half of Americans perceive immigrants crossing the border illegally as a “critical threat.”
Yet the sentiment expressed above is almost exactly 100 years old. It was uttered by Sen. Ellison DuRant Smith, a South Carolina Democrat, on April 9, 1924. And it helped set the stage for a historic change in U.S. immigration law, which imposed strict national quotas for newcomers that would shape the United States’ ethnic makeup for decades to come.
. . . .
The renewed backlash against immigration has little to offer the American project, though. Closing the door to new Americans would be hardly desirable, a blow to one of the nation’s greatest sources of dynamism. Raw data confirms how immigrants are adding to the nation’s economic growth, even while helping keep a lid on inflation.
Anyway, that horse left the stable. The United States is full of immigrants from, in Trump’s memorable words, “s—hole countries.” The project to set this in reverse is a fool’s errand. The 1924 Johnson-Reed immigration law might have succeeded in curtailing immigration. But the restrictions did not hold. From Presidents Johnson to Trump, efforts to circle the wagons around some ancestral White American identity failed.
We are extremely lucky it did. Contra Sen. Ellison DuRant Smith’s 100-year old prescriptions, the nation owes what greatness it has to the many different women and men it has drawn from around the world to build their futures. This requires a different conversation — one that doesn’t feature mass expulsions and concentration camps but focuses on constructing a new shared American identity that fits everyone, including the many more immigrants who will arrive from the Global South for years to come.
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Gordon F. Sander Journalist and Historian PHOTO: www.gordonsander.com
Gordon F. Sander, journalist and historian, also writes in WashPost, perhaps somewhat less optimistically, but with the same historical truth in the face of current political lies and gross misrepresentations:
Johnson and Reed were in a triumphant mood on the eve of their bill’s enactment. “America of the melting pot will no longer be necessary,” Reed wrote in the Times. He remarked on the new law’s impact: “It will mean a more homogenous nation, more self-reliant, more independent and more closely knit by common properties and common faith.”
The law immediately had its intended effect. In 1921, more than 200,000 Italians arrived at Ellis Island. In 1925, following the bill’s enactment, barely 6,000 Italians were permitted entry.
But there were less intended consequences, too, including on U.S. foreign relations. Although Reed insisted there was nothing personal about the act’s exclusion of Japanese people, the Japanese government took strong exception, leading to an increase in tensions between the two countries. There were riots in Tokyo. The road to Pearl Harbor was laid.
During the 1930s, after the eugenics-driven Nazis seized control of Germany, the quotas established by the act helped close the door to European Jews and others fleeing fascism.
At the same time, the law also inspired a small but determined group of opponents led by Rep. Emanuel Celler (D-N.Y.), who were committed to overturning it. Celler’s half-century-long campaign finally paid off in 1965 at the Statue of Liberty when, as Celler looked on, President Lyndon B. Johnson signed the Immigration and Nationality Act, which ended national origin quotas.
But with anti-immigration sentiment on the rise and quotas once again on the table, it’s clear that a century after its enactment, the ghost of Johnson-Reed isn’t completely gone.
Gordon F. Sander is a journalist and historian based in Riga, Latvia. He is the author of “The Frank Family That Survived: A 20th Century Odyssey” and other books
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Many thanks to my friend and immigration maven Deb Sanders for alerting me to the Sander article. I strongly urge everyone to read both pieces at the links above.
Perhaps the most poignant comment I’ve received about these articles is from American educator, expert, author, and “practical scholar” Susan Gzesh:
And because of the 1924 Act, my grandparents lost dozens of their siblings, parents, aunts, uncles, nieces, and nephews to the Holocaust in the 1940s because Eastern European Jewish immigration to the US had been cut off. They would have been capable of sponsoring more family to come to the US in the late 1920s and 30s, but there was no quota for them.
I have no words to describe my feelings about so-called experts who would praise the 1924 Act. I know that Asian Americans must feel similarly to my sentiments.
Well said, Susan!
Susan Gzesh American scholar, educator, expert, author PHOTO: U. Of Chicago
I’ll leave it at that, for you to ponder the next time you hear Trump, DeSantis, Abbott, and the like fear-monger about the bogus “invasion,” spout “replacement theory,” and extoll the virtues of extralegal cruelties and dehumanization inflicted upon “the other” — typically the most vulnerable who areseeking our legal protection and appealing to our senses of justice and human dignity! And, also you can consider this when the so called “mainstream media” pander to these lies by uncritically presenting them as “the other side,” thereby echoing “alternative facts!”
It’s also worth remembering this when you hear Biden, Harris, Schumer, Murphy, and other weak-kneed Dem politicos who should know better adopt Trumpist White Nationalist proposals and falsely present them as “realistic compromises” — as opposed to what they really are —tragic acts of political and moral cowardice!
Eventually, as both of the above articles point out, America largely persevered and prospered over its demons of racism, anti-Catholicism, and anti-immigrant nationalism. But, it would be wrong to view this “long arc” analysis as “zeroing out” the sins and horrors of our past.
Susan Gzesh’s relatives died, some horribly and painfully, before their time. That can’t be changed by future progress. Nor can the children they might have had or the achievements they never got to make to our nation and the world be resurrected.
As Susan mentions, the 1924 Act also reinforced long-standing racism and xenophobia against Asian Americans that led to the irreversible harm inflicted by the internment of Japanese American citizens, continuing Chinese Exclusion, and a host of state laws targeting the Asian population and making their lives miserable. Belated recognition of the wrongfulness and immorality of these reprehensible laws and actions does nothing for their past victims.
Many Irish, Italian, and other Catholics and their cherished institutions died, lost property, or were permanently displaced by widespread anti-Catholic riots brought on and fanned by the very type of biased and ignorant thinking that undergirded Johnson-Reed. They can’t be brought back to life and their property restored just by a “magic wave of the historical wand.”
U.S. citizens of Mexican-American heritage were deported and dispossessed, some from property their ancestors had owned long before there was even a United States. Apologizing to their descendants and acknowledging our mistakes as a nation won’t eliminate the injustices done them — ones that they took to their graves!
Despite the “lessons of the Holocaust,” America continues to struggle with anti-Semitism and anti-Islamic phobias and indifference to human suffering beyond our borders.
And, of course, the poisonous adverse impacts of slavery on our nation and our African-American compatriots continue to haunt and influence us despite disingenuous claims to the contrary.
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
My friends immigration experts Dan Kowalski and Hon. Jeffrey Chase also had some “choice words” for the “false scholars” who extol the fabricated “benefits” of White Nationalism and racism embodied in “laws” that contravened the very meaning of “with liberty and justice for all” — something to reflect upon this Memorial Day. See https://dankowalski.substack.com/p/true-colors.
Thank you, Dan! In memory of my Gzesh, Wolfson, Kronenberg, and Kissilove relatives who were victims of the Holocaust – after their U.S.-based relatives failed to get visas for them.
Heed the lessons of history, enshrine tolerance, honor diversity, and “improve on past performance!”We have a choice as to whether or not to repeat the mistakes of the past — to regress to a darker age or move forward to a brighter future for all!Make the right one!
Immigration law and policy are very complex, and truly boring for everyone except those who have to deal with them. But we live in an instant gratification, fast food culture. Immigration is a Hot Topic, folks want a Solution Now, so journalists naturally write about it…some better than others.
David Leonhardt, a senior writer at the New York Times, is a smart fellow who has won awards. But his “wheelhouse,” as the kids say, is mostly business and economics. I wish he (and/or his editors…where were they?) had consulted a panel of experts before hitting “send” on this piece.
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Now, I’m not an expert, but I did practice immigration law for almost 40 years, and today my social media feeds and email listservs are burning up with negative reactions to Leonhardt’s piece from true immigration experts.
Responding to every one of the problems in the piece would make this post too long, and would put you to sleep rather quickly, so I’ll touch on just a few highlights that really chapped my professional hide.
First, Leonhardt said, “Biden … changed the definition of asylum to include fear of gang violence.” That is simply false. The definition of who qualifies for asylum is based on the “refugee” definition, is fixed by statute, and only Congress can change that. Congress did NOT make any such change, and neither Biden nor any president could. Fear of gang violence as a basis for an asylum claim is a continuing subject of litigation at the Board of Immigration Appeals and in the federal courts, but the statute remains unchanged.
Second, Leonhardt states that Biden could have issued executive orders to mitigate the situation at the border. Oh, but “Yes, federal judges might block some of these policies… .” Maybe because they are illegal orders? No matter, “sending a message” is more important than legality.
Third, on the matter of admission into the U.S. via “parole,” Leonhardt implies that Biden expanded the use of parole beyond its “case-by-case” legal limits. Maybe Leonhardt did not know that “parole was … used to resettle over 360,000 Indochinese refugees between 1975 and mid-1980” and that “[b]etween 1962 and the end of May 1979, over 690,000 Cuban nationals were paroled into the country, “the largest number of refugees from a single nationality ever accepted into the United States.” ” – Amicus brief submitted to the Supreme Court in Clark v. Martinez.
Finally, the overall thrust of Leonhardt’s piece seems to be that the border is a “problem” that can and should be “solved” by some combination of legal and physical deterrents. This is a misperception common to educated elites as well as regular folks, and it is based on an ignorance of the full panoply of historical, economic, geographic and political forces that combine to make true border “control” a fantasy. Go to the border, look at the miles of desert, mountain and river and you will conclude that border walls are nothing more than a contractor’s financial wet dream. Talk to a woman from Central America who has risked everything to come here and you will conclude that no laws, no walls, no “message” would have deterred her.
I usually ignore much of what the MSM publishes about immigration, but the Times and Leonhardt carry a certain weight, so here I am, typing away. You’re welcome.
[The Comments are open, so fire away!]
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Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings Law
Here’s the letter that Professor Karen Musalo, Director of the Center for Gender & Refugee Studies at Hastings Law wrote to the NYT:
Before David Leonhardt writes another piece on immigration, he should make sure he has his facts straight. He erroneously claims Biden “changed the definition of asylum to include fear of gang violence.” Biden did no such thing. What his Justice Department did was overturn a Trump-era ruling attempting to foreclose asylum claims by victims of domestic and gang violence, regardless of their legal merits. That decision was widely criticized, including on your pages in an op-ed I co-authored with Jane Fonda. Attorney General Garland rightfully vacated it, leaving the issue to be resolved by regulations [which to date have not been issued].
Leonhardt is incorrect in his assertion that more “aggressive” moves will mitigate challenges at the border, or score points with voters who overwhelmingly opposecruel and exclusionary policies. The Senate bill touted as a step in the right direction would have codified failed policies that only create more chaos.
Executive actions reportedly under consideration would similarly exacerbate operational challenges and inevitably get tied up in litigation.
And yes, Republicans’ sabotage of the bill was “transparently cynical.” Just as cynical, however, was the president’s choice to back anti-immigrant legislation he knew was doomed. In their attempts to out-Trump Trump, the president and his allies have betrayed their values and the voters who put them in office.
Karen Musalo
San Francisco, CA
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Thanks, Dan and Karen! Turning Leonhardt loose on a subject he’s obviously unqualified to write about — “stunning ignorance” in the words of one world-renowned expert — is nothing short of journalistic malpractice on the part of the NYT!
Immigration is a serious topic with life or death implications for migrants and the future of our nation. It deserves serious, informed, professional journalism by experts who are familiar with the plight of forced migrants and the actual legal requirements for asylum and due process as well as the realities of the border and the anti-immigrant absurdities of our dysfunctional Immigration Courts and non-legally-compliant asylum adjudication system.
There are lots of well-qualified folks around who could inform the public. Needless to say Leonhardt is not one of them. Unhappily, few “mainstream media” journalists have the necessary creds. That’s one reason the toxic national debate is so dominated by right wing White Nationalist media spreading lies and myths with little critical pushback from the “MSM.”
Rachel Siegel Economics Reporter Washington Post PHOTO: WashPost
Ironically, the same day’s Washington Post had an article by Rachel Siegel about how robust immigration of all types has saved the U.S. economy and how many economists believe Trump’s mindless, restrictionist, and likely illegal nativist policies could slow growth, devastate the U.S. workforce, and exacerbate inflation! https://www.washingtonpost.com/business/2024/05/20/trump-immigration-undocumented-economy/. At the same time, he would create chaos and waste billions in public funds.
Recently, I publisheda number of articles by experts debunking many of the very anti-immigrant myths that Leonhardt disingenuously repeats or enables:
In one of many bad moments, Leonhardt uncritically “parrots” the oft-debunked fiction that changes in U.S. immigration policies and “deterrents” like walls, detention, and racially-driven cruelty are primary long-term “drivers” of forced human migration. Undoubtedly, in the complex interrelated world of migration, such policies do have some fairly marginal, largely short-term effects, causing changes in migration paths, adjustments in smuggling methods, changes in smuggling fees, more deaths and unreported irregular entries (when enforcement “gimmicks” are irresponsibly expanded), and enough “statistical variance” to allow proponents of these futile policies to falsely claim “victory” before the system reverts to a new “equilibrium.”
But the truth is inescapable, even if inconvenient for Leonhardt and other dilettantes: Human migration is a complex worldwide phenomenon driven by forces beyond the ability of any single nation, even one as powerful and influential as the U.S., to control by harsh deterrence and restriction, no matter how cruel, deadly, and wasteful.See, e.g., https://immigrationcourtside.com/wp-admin/about.php (“Migrants will continue to flee bombs, look for better-paying jobs and accept extraordinary risks as the price of providing a better life for their children. . . .No wall, sheriff or headscarf law would have prevented [forced migrants] from leaving their homes.”).
As cogently stated by Robert McKee Irwin, an immigration scholar at U.C. Davis:
Leonhardt also suggests, quite incorrectly, that Biden’s (limited) attempts to increase pathways for legal immigration and return to the rule of law at the border somehow benefitted and encouraged smugglers and cartels. NOTHING could be more wrong-headed!
It is Trump and his restrictionist allies and enablers who have been a huge boon for human smugglers! As legal pathways are eliminated or unreasonably restricted, the entire “protection” system falls into the hands of smugglers and other trans-border criminal organizations who become “the only game in town” for those seeking protection! Smuggling prices go up and the risks to migrants increase, even as profit margins for the smugglers skyrocket! Equally bad, law enforcement is diverted from real criminals to playing a bogus “numbers game” at the expense of those who seek only to have their life-determining claims heard fairly, timely, and humanely in accordance with the rule of law!
If our country builds a fair, timely, and humane system for considering asylum claims, something that succeeding Administrations have shamefully eschewed, the majority of asylum applicants will use it, which at the same time would allow border law enforcement to focus on real security issues rather than contrived ones. Similarly, more realistic and robust paths for legal immigration, both temporary and long term, will reduce the pressure and incentives for irregular migration. These measures would also tap into the truth about migration being ignored by politicos of both parties:
These [restrictionist] political reactions fail to grapple with a hard truth: in the long run, new migration is nearly always a boon to host countries. In acting as entrepreneurs and innovators, and by providing inexpensive labor, immigrants overwhelmingly repay in long-term economic contributions what they use in short-term social services, studies show. But to maximize that future good, governments must act -rationally to establish humane policies and adequately fund an immigration system equipped to handle an influx of newcomers.
Notably, the Biden parole program criticized by Leonhardt not only has been upheld in Federal Court, but has generally been praised and recognized by experts as a great, largely under appreciated, success in both creating an orderly process and reducing border pressures while benefitting American families and fueling our economy. See, e.g., https://www.fwd.us/news/chnv-parole/. (I’ll admit to not initially being a “fan,” but hey, results matter so I’ve come around). The most legitimate criticism is that it has been too limited both in terms of numbers and nationality restrictions!
Bad journalism promoting myths like those spouted by Leonhard misleads the public and enables politicos to get away with policies that are not only illegal, but often harm and even kill the very vulnerable migrants we are supposed to be protecting, or at the very least treating with fairness, respect, and human dignity. America and the migrants who still (against the odds) see us as a beacon of hope in a cruel world deserve better from the NYT!
Judge Lister also has a plan to donate patented “healthy, sustainable textile technology” developed during the pandemic that could be used to create good jobs in Mexico and other countries beyond our borders.
Professor Michele Pistone at Villanova Law has developed a “scalable” online training course (“VIISTA Villanova”) that is currently being used to graduate more highly-qualified non-lawyer “Accredited Representatives” to close the burgeoning and critical representation gap in Immigration Court, thus “delivering due process with efficiency.” She believes that with more funding, this program could be “ramped up” to produce 10,000 new Accredited Representatives annually! See, e.g., https://www1.villanova.edu/university/professional-studies/academics/professional-education/viista.html.
With so many brilliant, informed, and involved experts out here, with creative positive ideas for improving immigrant justice and restoring the rule of law, it is very disappointing that the NYT and Leonhardt have chosen to uncritically recycle and repeat cruel, failed, legally problematic proposals by irresponsible politicos that would make things worse. Rather, the media should be consulting the experts actually involved in immigration at the “grass roots level” and pressing politicos on both sides of the aisle and the Administration as to why they aren’t concentrating and investing in humane potential solutions rather than deadly and discredited “deterrence through cruelty!”
As Erica Bryant of the Vera Institute of Justice, someone who, unlike Leonhardt, is actually qualified to write about migration, stated in an article I recently republished:
This November, and beyond, voters need to reject lies that demonize immigrants and demand policies that treat each person with dignity and fairness, no matter where they were born.
Obviously, neither Leonhardt nor the NYT editors got the message. They should!
Thanks again, Dan and Karen, for being the first to speak out and challenge Leonhardt’s dangerous, misleading, and highly irresponsible nativist nonsense!
🚩 Federal court knocks down key part of Florida’s anti-immigrant law temporarily – a massive win for immigrants’ rights against anti-immigrant state laws!
Today, the U.S. District Court for the Southern District of Florida granted a preliminary injunction in a lawsuit challenging the main provision of Florida’s anti-immigrant law SB1718. This means this part of the law is temporarily stopped while the full case continues to get litigated.
Spearheaded by anti-immigrant Governor Ron DeSantis, SB1718 has attacked immigrants in Florida in a multitude of ways, including the provision at issue in this lawsuit, which made it a crime to transport anyone into Florida who had not been “inspected” by the US government.
This had the effect of the state of Florida, through state criminal law, unlawfully enforcing federal immigration law, which hundreds of years of case law makes clear is a matter reserved for the federal government. The district court judge agreed (finding the Plaintiffs are likely to succeed on the merits of their conflict- and field-preemption claims).
Congratulations to the ACLU, SPLC, AIC, and AIJ who have led litigation on this case as well as my colleagues Immigration Impact Lab Senior Attorneys F. Evan Benz and Daniel J. Melo and AILA’s amicus committee for writing an excellent amicus brief in support of the lawsuit.
What can you do?
1. Spread the word. Help educate others about the importance of fighting for immigrants’ rights.
2. Celebrate. As we see more and more states seek to pass anti-immigrant laws at the state level following Florida and Texas’ lead, this decision is a milestone moment in advocates’ efforts to fight back. 🎉
Thanks, Adina, and way to go NDPA Team! The case is Farmworker Association of Florida v. Moody, No. 23-cv-22655 (Southern District of Florida, May 22, 2024). Expect Florida to appeal to the 11th Circuit, so, unfortunately, this isn’t the end of the matter.
Here’s a link to the decision by U.S. District Judge Roy K. Altman (Trump appointee):
Even as the national (non) debate on immigration deteriorates into lies, myths, and hate, there are still victories to be won by great, motivated lawyers dedicated to defending individual rights and the rule of law against political scofflaws like DeSantis and his nativist ilk!
As critical elections approach, voters are being bombarded with harmful myths, misrepresentations, and outright lies about people who are immigrants. More than 45 million people living in the United States were born elsewhere. Despite their proven contributions to communities nationwide, people seeking office call them “invaders” and make campaign promises for the “largest domestic deportation operation in history.” Inflammatory talking points about “border security” and the “migrant crisis” come from candidates across the political spectrum.
What is missing from this rhetoric is simple: the truth. The United States has failed to align its immigration laws and practices with 21st-century realities, leaving a system that is cruel, dysfunctional, and widely criticized. Bringing the country’s approach to immigration in line with the needs of the moment and building an immigration system that is both functional and humane will require serious effort. False information distracts from the solutions that we know work.
Here’s the truth.
It is perfectly legal to request asylum. People who come to the United States border to ask for help are not breaking the law.
Asylum is a form of protection that allows people to remain in the United States and avoid deportation back to a country where they fear persecution or harm because of their identity, religion, or political beliefs. Under both U.S. and international law, people who face danger in their homelands have the right to go to other nations to seek safety and to have their requests for asylum considered.
Asking for asylum is not a “free ticket” into the United States.
Applying for asylum is a long and complex process. Asylum cases completed in fiscal year 2019 or later took an average of 5.2 years to resolve, according to unpublished analysis of government data conducted by Vera. Currently-pending removal cases have been on the docket for an average of 1.9 years. Dangerous conditions around the world have forced record numbers of people to flee their homes and seek safety. This increase in need, exacerbated by a decades-long lack of investment in infrastructure and capacity to humanely process asylum claims, has created an enormous backlog in processing requests. Vera’s unpublished analysis of government data showed that, as of January 31, 2024, there were 3,353,199 cases pending removal proceedings in the United States.
Undocumented people have far lower crime rates than U.S. citizens.
Political candidates often falsely link undocumented people to crime in the United States. Yet an extensive study of crimes in all 50 states and Washington, DC, from 1990 to 2014, found that undocumented immigration does not increase violent crime. A study of arrests in Texas found that, relative to undocumented people, U.S.-born citizens are more than twice as likely to be arrested for violent crimes, 2.5 times more likely to be arrested for drug crimes, and more than four times more likely to be arrested for property crimes. Another study in Texas found that the criminal conviction rate for undocumented immigrants was 45 percent below that of native-born Texans. Immigrants of any legal status are typically found to be less involved in violence than native-born Americans.
Undocumented people pay taxes and help prop up social security by paying into the system—without receiving benefits.
Undocumented people pay an estimated $31 billion dollars in federal, state, and local taxes each year, including billions of dollars into a social security system from which they can draw very few, if any, benefits. The Social Security Administration (SSA) itself estimated that it collected $13 billion in payroll taxes in 2010 from workers without documentation, while only disbursing about $1 billion in payment attributable to unauthorized work. In a 2013 report, SSA estimated that “earnings by unauthorized immigrants result in a net positive effect on Social Security financial status generally. . . . We estimate that future years will experience a continuation of this positive impact on the trust funds.”
Virtually no fentanyl has been seized from people seeking asylum.
Fentanyl overdoses are increasing in the United States, and real solutions will require investments in treatment and preventative health care infrastructure. Instead, far too many politicians seek cheap political points by falsely blaming people seeking asylum at the southern border for this serious problem. In fact, virtually no fentanyl has been seized from people seeking asylum. In 2023, 93 percent of fentanyl seizures occurred at official border crossings or legal checkpoints. Nearly all of these seizures involved people permitted to cross the border, and more than 70 percent were U.S. citizens.
People with pending immigration cases show up to their court hearings.
Evidence clearly shows that, over the past two decades, most immigrants have shown up for the immigration court hearings that determine whether they have legal standing to remain in the United States. They do not slip into the country and disappear, as some political leaders claim. In fact, those who attend immigration court outside detention, on what are known as “non-detained” dockets, almost always continue to appear for their hearings when they are able to secure legal representation. There is no need to confine people in costly and inhumane immigration prisons.
Not all people at risk of deportation cross the border without documentation. Visa holders, long-term permanent residents, and even U.S. citizens are at risk.
While the spotlight often shines on people who cross the southern border without documentation, there are many ways that people can face the threat of deportation in the United States. Indeed, there are 22 million people in the United States who are at risk of being separated from their families and sent to countries where they may face danger. Tens of thousands of children who were adopted from outside the United States, for example, do not have documentation and are vulnerable to deportation because their complex citizenship paperwork was improperly filed. Additionally, more than one million people were brought to the United States as children by parents who entered the country without documentation or overstayed their visas. And, in 2022, more than 850,000 people from countries around the world overstayed their visas, making their continued presence in the United States unauthorized. Lawful permanent residents, current visa holders, and even U.S. citizens have been subjected to the risk of deportation and forced to defend their right to remain home with their families and in their communities.
Many people at risk of deportation actually have a legal right to remain in the United States—but are deported anyway.
Unlike in criminal court, people facing deportation in immigration court are not entitled to an attorney if they cannot afford one. Immigration attorneys can cost thousands of dollars, making them unaffordable for many. As a result, people seeking asylum, longtime legal residents, parents of U.S. citizens, and even small children are forced to appear in immigration court without an attorney to protect their rights. This makes it much more likely that they will be deported, even if they could have established a legal right to stay in the United States. The Fairness to Freedom Act, which was introduced in Congress last year and would establish a right to federally funded attorneys for all people facing deportation, would help fix this injustice.
Immigrants participate in the labor force and start businesses at higher rates than the native-born population.
One in six people in the United States workforce are immigrants. In fact, immigrants participate in the labor force at a higher rate than the U.S.-born population. Immigrants are also more likely to start businesses than native-born U.S. citizens. Furthermore, millions of people in the United States are employed by immigrant-founded and immigrant-owned companies.
People in the United States view immigration as a positive that benefits the country, and they support protections for people fleeing danger.
The majority of the public believes that immigration brings benefits to the United States, including economic growth and enriching culture and values. Nearly three-quarters of people polled said that people immigrate to the United States for jobs and to improve their lives, and more than half say that the ability to immigrate is a “human right.” Multiple polls show that the majority of people in the United States support protections for people who are trying to escape persecution and torture in their homelands. According to one Pew Research Center poll, 72 percent believe that accepting civilians trying to escape war and violence should be an important goal of U.S. immigration policy.
The United States has much work ahead to reform its dysfunctional and often cruel immigration system. This November, and beyond, voters need to reject lies that demonize immigrants and demand policies that treat each person with dignity and fairness, no matter where they were born.
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Erica’s “spot on” last sentence is certainly worth repeating:
This November, and beyond, voters need to reject lies that demonize immigrants and demand policies that treat each person with dignity and fairness, no matter where they were born.
While migrants might be the “easy target” of politicos and nativists, because they are vulnerable and “the usual scapegoats” for problems created or fostered by those very politicos and nativists themselves, in the end we ALL are the targets of those who want to inflict gratuitous cruelty while destroying our precious democracy.
As Dr. Martin Luther King, Jr., said “Injustice anywhere is a threat to justice everywhere.” Each of us has a vested interest in “not looking the other way” while our fellow humans unfairly are stripped of their rights and humanity with “harmful myths, misrepresentations, and outright lies.” YOU could be “next on the list!”
Austin Kocher, Ph.D. Research Assistant Professor TRAC-Syracuse PHOTO: Syracuse U.
From Professor Austin Kocher @ Linkedin:
New Report! “Two-Thirds of Court Asylum Applicants Found Legally Entitled to Remain.”
Out of 1M+ asylum cases decided by immigration judges over the past decade, 685,956 (66%) were legally entitled to remain in the United States due to asylum or other relief.
Remember, this is in a system that has, over decades, been intentionally rigged, manipulated, and skewed AGAINST legal asylum seekers, particularly those of color from certain arbitrarily “disfavored” countries! (Think Haiti, The Northern Triangle, and many African Nations). While this anti-asylum bias has “peaked” in GOP Administrations, Dems have also been guilty including the Biden Administration’s flailing, legally problematic efforts to abuse the asylum adjudication system as a “deterrent” to those legally seeking asylum!
The U.S. Asylum system over the past two decades has prided itself in making the experience of asylum seekers as restrictive, difficult, complex, arcane, arbitrary, and “user unfriendly” as possible for many of the most vulnerable. Even so, courageous asylum seekers who can actually get a decision persevere and succeed against the odds! What if Administrations of both parties worked to make the system fair and timely, rather than trying to use it as a false “deterrent?” Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Austin’s post triggered this exchange between Beckie “Deportation Defender” Moriello and me on LinkedIn:
BECKIE: It’s really higher than that, once we factor in all the wrongfully denied cases for clients who can’t afford to appeal.
PWS: Thanks for speaking truth, Beckie! If true asylum experts were on the BIA, IJs were experts who applied or were held by the BIA to the Cardoza, Mogharrabi, Kasinga, 8 CFR 208.13 framework, the asylum adjudication system had dynamic leadership, and individuals were competently represented, many more cases would be granted much more efficiently and backlogs would eventually come under control and start to diminish. In fact, individuals should be considered eligible for asylum even where persecution on a protected ground is “significantly less than probable” — the 10% rule! Moreover, asylum seekers who testify credibly are supposed to be given “the benefit of the doubt.” These and the presumption of future persecution established by past persecution, thereby shifting the burden to DHS, are still too often ignored, misapplied, or manipulated against asylum seekers. There is nothing that will make a backlog at least a decade in the making disappear overnight. But, a legitimate, legally compliant, properly generous asylum adjudication system would benefit all involved. It’s sad that Biden, Harris, Garland, and Mayorkas are afraid to comply with the rule of law for asylum seekers and other migrants!
