"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.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesMe
Excerpts from Jennifer’s article:
. . . .
Garland’s latest vacatur was well-received by Jeffrey S. Chase and Paul W. Schmidt, who were among 40 retired immigration judges to sign a letter last spring urging Garland to undo all 17 BIA decisions issued by his Trump-appointed predecessors.
“Prohibiting an appellate body from accepting party stipulations below or honoring concessions on appeal is simply insane. Why would any party stipulate to an issue if it will simply be ignored on appeal?” Judge Schmidt said in a statement to Law360, calling such agreements “a really important part of encouraging efficiency in litigation and reducing backlog.”
According to Judge Chase, Monday’s order “will again allow valuable court time to be spent focusing only on issues actually in dispute between the parties, a practice that could save hours of hearing time on a single case.”
“And limiting the scope of administrative review to the issues actually raised on appeal by the parties eliminates the need to sacrifice fairness in order to achieve that increased efficiency,” he continued.
U.S. Department of Justice Office of the Attorney General
(1) Matter of A-C-A-A-, 28 I&N Dec. 84 (A.G. 2020) (“A-C-A-A- I”), is vacated in its entirety. Immigration judges and the Board should no longer follow A-C-A-A- I in pending or future cases and should conduct proceedings consistent with this opinion and the opinions in Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021) (“L-E-A- III”), and Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (“A-B- III”).
(2) The Board’s longstanding review practices that A-C-A-A- I apparently prohibited, including its case-by-case discretion to rely on immigration court stipulations, are restored.
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Way to go Judge Garland!
Yes, I feel good about this! This was one of the “Sessions-Barr follow-ons” to A-B-, L-E-A-, and Castro-Tum that had undermined due process and fundamental fairness while inhibiting sound case management. It was part of a virulent, racist, anti-asylum agenda promoted by Trump and Miller and unethically carried out by Sessions and Barr. It was a backlog-building, due-process-denying national disgrace to be sure! One that unethically targeted people of color and sought to improperly eradicate our legal (and moral) obligations to protect refugees — without any legislative authority!
Prohibiting an appellate body from accepting party stipulations below or honoring concessions on appeal is simply insane! Why would any party stipulate to an issue if it will simply be ignored on appeal?
Stipulations are a really important part of encouraging efficiency in litigation and reducing backlog. I used them all the time at both the BIA and the Arlington Immigration Court!
Why on earth would the BIA revisit an issue that was so well-established and logical that the parties had already agreed upon it below? Why would an already overwhelmed tribunal be required to decide issues that were uncontested by the litigants?
No wonder the Immigration Court system was completely out of control and counterproductive during the Trump Administration!
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — The Biden Administration still can’t get beyond this “vision” of appropriate treatment of legal asylum seekers. This is the “human face (down)” of “deterrence-only policies.” Six months in, and the Administration still has nobody in leadership who understands human rights, refugees, asylees, and the relationship of scenes like this one to the overall failure of equal justice and dimishment of the rule of law in America. EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
However, lest we start thinking that the Biden Administration finally “gets it” on asylum policy, DHS immediately countered with a totally tone-deaf announcement on “punishing” asylum seekers for the Administration’s failure to live up to it’s campaign promises ands re-establish a viable legal asylum system at the border:
DHS Statement on the Resumption of Expedited Removal for Certain Family Units
Release Date:
July 26, 2021
Beginning today, certain family units who are not able to be expelled under Title 42 will be placed in expedited removal proceedings. Expedited removal provides a lawful, more accelerated procedure to remove those family units who do not have a basis under U.S. law to be in the United States.
Attempting to cross into the United States between ports of entry, or circumventing inspection at ports of entry, is the wrong way to come to the United States. These acts are dangerous and can carry long-term immigration consequences for individuals who attempt to do so. The Biden-Harris Administration is working to build a safe, orderly, and humane immigration system, and the Department of Homeland Security continues to take several steps to improve lawful processing at ports of entry and reforms to strengthen the asylum system.
Perhaps somebody needs to tell these DHS/Biden Administration scofflaws that: 1) we have no functioning legal asylum system at ports of entry right now; and 2) refugees and asylees can’t wait for the Administration to get its act together. As one asylum seeker from the Northern Triangle stated in a recent Courtside post: “Nobody wants to die.”
Deterrence always has been and always will be a failure, both in terms of legal policy and morality. We need some progressive experts with some guts and ability “on the inside” to fix this system before more lives are lost.
Enough with the inane “wait to die” deterrence statements that actually insult the intelligence of asylum seekers and demean their dire situations! Fixing this system is not rocket science! But, it requires some progressive human rights leadership and expertise now sadly lacking in the Biden Administration’s approach!
