UW Law Looking For Immigrant Justice Clinic Director!

http://jobs.hr.wisc.edu/cw/en-us/job/495278/immigrant-justice-clinic-director

Click the link for full details. Great opportunity for a bilingual immigration attorney who wants to get into clinical teaching at a terrific school in a super city. Unlike many of today’s law schools, UW Law is located on Bascom Hill in the “heart” of the Main Campus with a view of the Capitol dome! Madison has to be one of the best places to live in the US.

While the initial appointmeet is for one year, based on performance, creativity, and ability to inspire funding, the position has longer term potential!

And, as an extra bonus, if you get the job, I’ll drop by at some mutually convenient time and give your students a “guest lecture.” Preferably right before a Badger home football or basketball game!

Thanks to Professor Alberto Benítez of the GW Law Immigration Clinic for sending this my way.

PWS

06-09-17

AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS — Read My Keynote Speech FromThe Pennsylvania Immigration Resource Center’s “Light Of Liberty Awards” Ceremony Last Night!

AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATON COURTS

Keynote Address by

Paul Wickham Schmidt

United States Immigration Judge (Retired)

LIGHT OF LIBERTY AWARDS

Pennsylvania Immigration Resource Center

Heritage Hills Golf Resort

York, PA

JUNE 7, 2016

I. INTRODUCTION

Good evening. Thank you so much for inviting me to speak at this wonderful event. I’m honored to be here. The PIRC is a terrific organization that provides critical legal services to the most vulnerable during one of the most difficult periods in our recent history.

The York area has a well-established tradition of humanitarian generosity and support for the most needy that was highlighted during the Golden Venture episode and described in the book Snakehead. I learned today that PIRC was formed to respond to the needs of the Golden Venture detainees. The U.S. Immigration Court in York has one of the highest representation rates for detained individuals in the nation, over 50%.

By contrast, the Arlington Immigration Court, where I used to sit, and the Baltimore Immigration Court had detained representation rates of around 20% and 10% respectively. And, it’s even worse in other parts of the country.

Back in February, I had the pleasure of working with your amazing Executive Director, Mary Studzinski, at a group session directed at improving training for non-attorney representatives authorized to practice before the U.S. Immigration Courts and the Board of Immigration Appeals. We bonded instantly. That’s “human bonding” rather than “immigration bonding,” of course. Mary’s kinetic energy, practical knowledge, tremendous dedication, and incisive contributions to the group were simply stunning. I must admit, I thought she was the Managing Attorney of the organization until she explained her role to me. You are so fortunate to have of someone who cares so deeply about your mission leading you. Mary is just what America needs right now.

Speaking of what America needs, I of course want to be the first to congratulate the five extraordinary individuals and two groups we are honoring tonight with well-deserved “Light of Liberty” Awards. Your energy, knowledge, and willingness to give of yourselves to others is making a much needed positive difference in this community and in our world. Each of you is indeed changing the course of history for the better. And, I’m pleased to announce that I have bestowed on each of tonight’s award recipients the rank of “General” in the “New Due Process Army. “

And, of course, thanks again to our great sponsors, mentioned by Mary, for supporting PIRCV and tonight’s awards.

II. THE DUE PROCESS CRISIS IN IMMIGRATON COURT

As most of you in this room probably recognize, there is no “immigration crisis” in America today. What we have is a series of potentially solvable problems involving immigration that have been allowed to grow and fester by politicians and political officials over many years.

But, there is a real crisis involving immigration: the attack on due process in our U.S. Immigration Courts that have brought them to the brink of collapse. I’m going to tell you seven things impeding the delivery of due process in Immigration Court that should be of grave concern to you and to all other Americans who care about our justice system and our value of fundamental fairness.

First, political officials in the last three Administrations have hijacked the noble mission of the U.S. Immigration Courts. That vision, which I helped develop in the late 1990s, is to “be the world’s best administrative tribunals guaranteeing fairness and due process for all.”

Instead, the Department of Justice’s ever-changing priorities, aimless docket reshuffling, and morbid fascination with increased immigration detention as a means of deterrence have turned the Immigration Court system back into a tool of DHS enforcement. Obviously, it is past time for an independent U.S. Immigration Court to be established outside the Executive Branch.

Second, there simply are not enough pro bono and low bono attorneys and authorized representatives available to assist all the individuals who need representation in Immigration Court. As I mentioned, this problem is particularly acute in detention courts. We know that representation makes a huge difference. Represented individuals succeed at rates four to five times greater than unrepresented individuals.

There have been a number of studies documenting the substandard conditions in immigration detention, particularly those run by private contractors, which in some cases prove deadly or debilitating. Some of these studies have recommended that immigration detention be sharply reduced and that so-called “family detention” be discontinued immediately.

A rational response might have been to develop creative alternatives to detention, and to work closely with and support efforts to insure access to legal representation for all individuals in Removal Proceedings. Instead, the response of the current Administration has been to “double down” on detention, by promising to detain all undocumented arrivals and to create a new “American Gulag” of detention centers, most privately run, along our southern border, where access to attorneys and self-help resources is limited to non-existent.

Third, the Immigration Courts have an overwhelming caseload. Largely as a result of “aimless docket reshuffling” by Administrations of both parties, the courts’ backlog has now reached an astounding 600,000 cases, with no end in sight. Since 2009, the number of cases pending before the Immigration Courts has tripled, while court resources have languished.

The Administration’s detention priorities and essentially random DHS enforcement program are like running express trains at full throttle into an existing train wreck without any discernable plan for clearing the track!” You can read about it in my article in the latest edition of The Federal Lawyer.

Fourth, the immigration system relies far too much on detention. The theory is that detention, particularly under poor conditions with no access to lawyers, family, or friends, will “grind down individuals” so that they abandon their claims and take final orders or depart voluntarily. As they return to their countries and relate their unhappy experiences with the U.S. justice system, that supposedly will “deter” other individuals from coming.

Although there has been a downturn in border apprehensions since the Administration took office, there is little empirical evidence that such deterrence strategies will be effective in stopping undocumented migration in the long run. In any event, use of detention, as a primary deterrent for non-criminals who are asserting their statutory right to a hearing and their constitutional right to due process is highly inappropriate. Immigration detention is also expensive, and questions have been raised about the procedures used for awarding some of the contracts.

Fifth, we need an appellate court, the Board of Immigration Appeals, that functions like a real court not a high-volume service center. Over the past decade and one-half, the Board has taken an overly restrictive view of asylum law that fails to fulfill the generous requirements of the Supreme Court’s landmark decision in Cardoza-Fonseca and the Board’s own precedent in Matter of Mogharrabi. The Board has also failed to take a strong stand for respondents’ due process rights in Immigration Court.

Largely as a result of the Board’s failure to assert positive leadership, there is a tremendous discrepancy in asylum grant rates – so-called refugee roulette.” Overall grant rates have inexplicably been falling. Some courts such as Atlanta, Charlotte, and some other major non-detained courts have ludicrously low asylum grant rates, thereby suggesting a system skewed, perhaps intentionally, against asylum seekers. Perhaps not coincidentally, the Board has become totally “government-dominated” with no member appointed from the private sector this century.

Sixth, the DOJ selection process for Immigration Judges and BIA Members has become both incredibly ponderous and totally one-sided. According to a recent GAO study, it takes on the average nearly two years to fill an Immigration Judge position. No wonder there are scores of vacancies and an unmanageable backlog!

And, it’s not that the results of this glacial process produce a representative immigration judiciary. During the Obama Administration, approximately 88% of the Immigration Judge appointments came directly from government backgrounds. In other words, private sector expertise has been almost totally excluded from the 21^st Century immigration judiciary.

Seventh, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an “amateur night” aura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court.

III. ACTION PLAN

Keep these thoughts in mind. Sadly, based on actions to date, I have little hope that Attorney General Sessions will support due process reforms or an independent U.S. Immigration Court, although it would be in his best interests as well as those of our country if he did. However, eventually our opportunity will come. When it does, those of us who believe in the primary importance of constitutional due process must be ready with concrete reforms.

So, do we abandon all hope? No, of course not! Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns, my former students, and those who have practiced before the Arlington Immigration Court.

They form what I call the “New Due Process Army!” And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of “guaranteeing fairness and due process for all!”

What can you do to get involved now? The overriding due process need is for competent representation of individuals claiming asylum and/or facing removal from the United States. Currently, there are not nearly enough pro bono lawyers to insure that everyone in Immigration Court gets represented.

And the situation is getting worse. With the Administration’s expansion of so-called “expedited removal,” lawyers are needed at earlier points in the process to insure that those with defenses or plausible claims for relief even get into the Immigration Court process, rather than being summarily removed with little, if any, recourse.

Additionally, given the pressure that the Administration is likely to exert through the Department of Justice to “move” cases quickly through the Immigration Court system with little regard for due process and fundamental fairness, resort to the Article III Courts to require fair proceedings and an unbiased application of the laws becomes even more essential. Litigation in the U.S. District and Appellate Courts has turned out to be effective in forcing systemic change. However, virtually no unrepresented individual is going to be capable of getting to the Court of Appeals, let alone prevailing on a claim.

Obviously, the PIRC is a fantastic way to contribute to assertively protecting the due process rights of migrants. Internships and JLC positions at the Immigration Courts are also ways for law students and recent law grads to contribute to due process while learning.

As mentioned earlier, Mary and I have been working with groups looking for ways to expand the “accredited representative” program, which allows properly trained and certified individuals who are not lawyers to handle cases before the DHS and the Immigration Courts while working for certain nonprofit community organizations, on either a staff or volunteer basis. The “accredited representative” program is also an outstanding opportunity for retired individuals, like professors, teachers, and others who are not lawyers but who can qualify to provide pro bono representation in Immigration Court to needy migrants thorough properly recognized religious and community organizations.

Even if you are a lawyer not practicing immigration law, there are many outstanding opportunities to contribute by taking pro bono cases. Indeed, in my experience in Arlington, “big law” firms were some of the major contributors to highly effective pro bono representation. It was also great “hands on” experience for those seeking to hone their litigation skills.

Those of you with language and teaching skills can help out in English Language Learning programs for migrants. I have observed first hand that the better that individuals understand the language and culture of the US, the more successful they are in navigating our Immigration Court system and both assisting, and when necessary, challenging their representatives to perform at the highest levels. In other words, they are in a better position to be “informed consumers” of legal services.

Another critical area for focus is funding of nonprofit community-based organizations, like PIRC, and religious groups that assist migrants for little or no charge. Never has the need for such services been greater.

Many of these organizations receive at least some government funding for outreach efforts. We have already seen how the President has directed the DHS to “defund” outreach efforts and use the money instead for a program to assist victims of crimes committed by undocumented individuals.

Undoubtedly, with the huge emphases on military expansion and immigration enforcement, to the exclusion of other important programs, virtually all forms of funding for outreach efforts to migrants are likely to disappear in the very near future. Those who care about helping others will have to make up the deficit. So, at giving time, remember your community nonprofit organizations that are assisting foreign nationals.

Finally, as an informed voter and participant in our political process, you can advance the cause of Immigration Court reform and due process. For the last 16 years politicians of both parties have largely stood by and watched the unfolding due process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

The notion that Immigration Court reform must be part of so-called “comprehensive immigration reform” is simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. It’s time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

IV. CONCLUSION

In conclusion, I have shared with you the U.S. Immigration Court’s noble due process vision and the ways it currently is being undermined and disregarded. I have also shared with you some of my ideas for effective court reforms that would achieve the due process vision and how you can become involved in improving the process. Now is the time to take a stand for fundamental fairness! Join the New Due Process Army! Due process forever!

Thanks again for inviting me and for listening. Congratulations again to our award winners and newly commissioned Generals of the New Due Process Army.

(06-08-17)

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

Congratulations to these Light of Liberty Awards winners and newly commissioned Generals in the New Due Process Army:

ATTORNEY OF THE YEAR:

Rosina Stambaugh, Esquire

LAW FIRM OF THE YEAR

Asylum & Human Rights Clinic, University of Connecticut School of Law

CONTINUING COMMITMENT TO JUSTICE INDIVIDUAL:

Professor Jill Family,

Widener University Delaware Law School

INTERPRETER OF THE YEAR

Rosalyn Groff

COMMUNITY VOLUNTEER OF THE YEAR:

Dr. Anne Middaugh

CONTINUING COMMITMENT TO JUSTICE ORGANIZATION:

Philadelphia Bar Foundation

VOICE OF COURAGE:

Josia Nunes

Out in the audience was superstar lawyer/social worker Hannah Cartwright, a “Charter Member” of the New Due Process Army, now on the legal staff at the PIRC. Hanna, a distinguished Catholic University Law grad, served as a Legal Intern at the Arlington Immigration Court and a Judicial Law Clerk at the Philadelphia Immigration Court.

Pictures and other news from this wonderful event to follow.

PWS

06-08-17

“IMMIGRATION COURTS — RECLAIMING THE VISION” — Read My Article In The Latest Federal Bar News!

Here is the link:

immigration courts

And, here’s an excerpt:

“Our immigration courts are going through an existential crisis that threatens the very foundations of our American justice system. I have often spoken about my dismay that the noble due process vision of our immigration courts has been derailed. What can be done to get it back on track?

First, and foremost, the immigration courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers, which are highly ineffective in any event, must end. That’s unlikely to happen under the Department of Justice—as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the American Bar Association and the Federal Bar Association, would be best.

Clearly, the due process focus has been lost when officials outside the Executive Office for Immigration Review have forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle (the Central American countries of El Salvador, Honduras, and Guatemala) who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases is not only unfair to all, but has created what I call “aimless docket reshuffling” that has thrown our system into chaos.

Evidently, the idea of the prioritization was to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we don’t want you” message to asylum seekers. But, as a deterrent, this program has been spectacularly unsuccessful. Not surprisingly to me, individuals fleeing for their lives from the Northern Triangle have continued to seek refuge in the United States in large numbers. Immigration court backlogs have continued to grow across the board, notwithstanding an actual reduction in overall case receipts and an increase in the number of authorized immigration judges.”

I encourage you to read the entire article.

Additionally, this entire issue of The Federal Lawyer is devoted to Immigration Law. Kudos to Judge Lawrence O. Burman of the Arlington Immigration Court and Judge Robin Feder of the Boston Immigration court for their key roles in FBA leadership and for inspiring this effort. There are four other great articles that will help you understand what is happening today in this most important area. Check them all out at this link:

http://www.fedbar.org/magazine.html

Finally, if you aren’t currently a member of the Federal Bar Association (“FBA”), please join the FBA and the Immigration Section today! The price is very reasonable, you get access to The Green Card (the Immigration Section newsletter, Edited by Judge Burman) and some other great educational materials, and you support the effort for due process, collegiality, and badly needed U.S. Immigration Court Reform, which the FBA advocates. The current “powers that be” are not going to fix the broken U.S. Immigration Court System without outside involvement and, ultimately, Congressional action. This won’t happen by itself. So, if like me, you are appalled and dismayed by what has happened to due process in our U.S. Immigration Court system, now is the time to get involved and work to change it!

Also, check out my previous blogs on the recent FBA Immigration Seminar in Denver.

http://wp.me/p8eeJm-O1

http://wp.me/p8eeJm-Oa

http://wp.me/p8eeJm-OU

http://wp.me/p8eeJm-P4

PWS

06-05-17

“AIMLESS DOCKET RESHUFFLING” (“ADR”) IN NEW YORK — NPR’s Beth Fertig Exposes Due Process/Management Abuses By Obama & Trump Administrations!

http://www.wnyc.org/story/why-new-yorks-immigration-court-even-busier-fewer-judges-under-trump/

Fertig reports:

“There are 29 immigration judges assigned to court rooms in the Federal Building in Lower Manhattan. But as the number of pending cases grew from about 70,000 in January to nearly 80,000 this spring, more and more people have been coming to court only to discover they don’t have judges.

On a Tuesday morning in May, Alin Guifarro expected to attend a hearing with his 18-year-old son, Jose David Rodriguez. The teen came from Honduras last year to join his father and is trying to get legal status in the U.S.

But when they went to the 12th floor and scanned the long list of names with appearances scheduled that day, Guifarro saw his son’s case wasn’t assigned to a judge. Confused, he went to the clerk’s office and was told he would eventually get a letter in the mail about a new court date.

Guifarro was frustrated. “I came over here driving 2 ½ hours for nothing,” he said, referring to his journey from his home in Mastic, Long Island.

This father and son aren’t the only ones whose immigration cases have been postponed lately.

“In the last two months this has happened every week,” said Bryan Johnson, an immigration lawyer based on Long Island. Many of his clients are seeking asylum, and he said some have already been waiting a couple of years. With extra delays, he said, “if they have children who are abroad, that will delay family unification or spousal unification if their spouse is abroad.”

On a single day in May, when almost 400 hearings were scheduled to take place in immigration court, WNYC counted 60 people who didn’t have judges.

The Executive Office for Immigration Review runs the nation’s immigration courts. It says staffers typically mail a notice if a judge is out or a case is delayed, but they don’t always go out in time. As for why people are coming to court without judges, the agency explained that they are technically assigned to ”visiting judges.” But it acknowledged these judges don’t actually exist.

“The concept of ‘visiting judges’ is for internal case management,” said E.O.I.R. spokesman John Martin. “When judges retire, or temporarily stop hearing cases due to illness, the New York City Immigration Court will assign these dockets to a ‘visiting judge’ in order to maintain continuity of these cases. As new immigration judges are hired and officially placed at their respective immigration court locations, these ‘visiting judge’ dockets in those locations are reassigned to them.”

Even after a recent hire, New York City has only 29 immigration judges, compared to 31 at this time last year.

The backlog in immigration courts isn’t new. There are almost 600,000 pending cases, nationally. The problem started well before President Donald Trump took office.”

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

Read Beth’s complete article at the link.

A recent GAO report highlighted and quantified endemic management issues with the DOJ’s stewardship over the U.S. Immigration Courts, particularly in hiring new Immigration Judges which takes an astounding average of 742 days. http://wp.me/p8eeJm-Uh

Then, there are the retirements. It’s hardly rocket science that an aging workforce in high-stress jobs might retire in large numbers. I ran “Immigration Judge retirements” into my search engine and got 9 articles, right off the bat. Try it yourself.

Additionally, there is the practice of both Administrations of mindlessly jamming more new cases in the front of the system without a rational plan for completing the ones already in it. That’s followed by reassigning Immigration Judges (like they were assembly line workers) from existing dockets of cases scheduled for final hearings to new dockets of Not Quite Ready For Prime Time (“NQRFPT”) cases. And to cap it off, Secretary Kelly, egged on by Jeff Sessions, has told DHS agents to arrest anyone the feel like arresting without any regard for reasonable priorities or space on already overcrowded court dockets!

And, while we’re at it, let’s stuff more non-criminals into dangerous, expensive, and unneeded immigration detention, thereby turning them into self-created emergency situations, rather than thinking creatively about cheaper, more humane, and more effective methods of getting non-dangerous folks through the system in a reasonable manner.

And you gotta love imaginary “visiting judges.” Visiting from where, “The Twilight Zone?” Almost as good as “warehousing” tens of thousands of cases on a single day in November 2019. No wonder that once in extreme frustration I referred to this administrative morass as “Clown Court!”🤡

No, it’s not all the fault of EOIR bureaucrats, most of whom mean well and are simply caught up in a “built for failure” system. But, it is the fault of the DOJ whose politicized management of the Immigration Courts has been a disaster since the beginning of this century. And, even if you removed politics from the equation, the DOJ obviously lacks the basic administrative competence to run a complicated, high volume court system. Ultimately, Congress must assume the responsibility for allowing this travesty to continue to exist. An independent Immigration Court outside the Executive Branch is long overdue.

But, other than that, it’s a great system!

Stay tuned! Tomorrow, Beth will tell us what judges pulled off their existing dockets find when they get to their “detail courts.” I can’t wait to hear what she found out!

PWS

06-05-17

NOT YOUR FATHER’S FOURTH CIRCUIT: Technology, Innovation, & A More Diverse Judiciary Change Tribunal Sitting In The Former Capital Of The Confederacy!

https://www.washingtonpost.com/opinions/after-a-ruling-on-trumps-travel-ban-all-eyes-are-on-the-4th-circuit/2017/06/02/b7a555f2-4545-11e7-bcde-624ad94170ab_story.html?utm_term=.825d55d2e2d7

Carl Tobias reports for the Washington Post.

“The U.S. Court of Appeals for the 4th Circuit is a court in transition. The Richmond-based appeals court was long considered the most ideologically conservative of the 12 regional circuits, the intermediate appellate tribunals across the country that are the courts of last resort for 99 percent of appeals. When a case heard in Maryland and Virginia federal district courts is appealed, it goes to the 4th Circuit. This is the court that has resolved appeals involving Maryland gun laws and Virginia transgender students’ rights, for example.

And change has come to the 4th Circuit.

This was recently on display when the entire court — all judges in active service who did not have conflicts of interest — substantially affirmed a Maryland district court’s nationwide injunction that blocked enforcement of President Trump’s revised travel ban. Notably, a majority of the judges proclaimed that the Constitution “protects Plaintiffs’ right to challenge the Executive Order that in text speaks in vague words of national security, but in context drips with religious intolerance, animus and discrimination.”

For decades, the 4th Circuit was a conservative stronghold. Seated in the former capital of the Confederacy, the court hears appeals in the Lewis F. Powell Jr. Courthouse, a building that served as the official headquarters for Confederate President Jefferson Davis. The circuit retains Southern manners. For instance, judges descend from the bench after oral arguments to shake the hands of counsel.

President George W. Bush tried to continue the court’s conservative legacy when numerous vacancies materialized in his administration. However, the White House insisted on pressing for confirmation of nominees whom many Democratic senators considered outside the mainstream, even after Democrats had captured a Senate majority in November 2006. Political machinations left four vacancies at the Bush administration’s close, enabling President Barack Obama to appoint numerous judges. The court now has nine members whom Democratic presidents appointed, five whom Republican presidents confirmed and Chief Judge Roger Gregory, whom President Bill Clinton recess-appointed and Bush confirmed.

Two recent developments in the travel ban appeal demonstrate change in the court. First, all of the active judges without conflicts heard the appeal, called an initial en banc proceeding, which is so extraordinary that the last one was decades ago. One judge, not the parties, suggested this procedure, and the court requested the litigants’ views on an en banc process, while a circuit majority favored it apparently because of the appeal’s exceptional public importance.

Another sign of change was the court’s April 27 announcement that the argument would be livestreamed. Allowing “cameras in the courtroom” has proved extremely controversial at the Supreme Court, which has never permitted live broadcast of arguments. Indeed, since-retired Justice David Souter famously declared “over my dead body.” A few lower federal courts allow broadcasts. The 9th Circuit began livestreaming all oral arguments in 2015.”

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

Read the complete article at the above link.

As a U.S. Immigration Judge sitting in the Fourth Circuit, I credited the Fourth Circuit’s carefully-crafted asylum jurisprudence and overriding concern for due process and fairness for asylum seekers as reasons why asylum grant rates were relatively high in the Arlington and Baltimore Immigration Courts (of course, along with my judicial colleagues’ careful attention the what the Fourth Circuit was saying; new Fourth Circuit rulings were a frequent topic of our lunch conversations.)

Apparently, however, the word didn’t reach as far south as the Charlotte Immigration Court, where advocates regularly complain of the rights of asylum seekers being “steamrolled.” To date, the BIA has failed to step in and fix the Charlotte situation. And, I wouldn’t expect it to happen with Jeff Sessions in charge of the U.S. Immigration Courts.

PWS

06-04-17

NEW BIA PRECEDENT: CANCELLED CERTIFICATE OF CITIZENSHIP — Worthless! — Matter Of Falodun, 25 I&N Dec. 52 (BIA 2017)

https://www.justice.gov/eoir/page/file/971036/download

Here’s the BIA headnote:

“(1) Unlike a Certificate of Naturalization, a certificate of citizenship does not confer United States citizenship but merely provides evidence that the applicant previously obtained citizenship status.

(2) The institution of judicial proceedings to revoke naturalization are not required to cancel a certificate of citizenship, which the Department of Homeland Security can cancel administratively upon a determination that an applicant is not entitled to the claimed citizenship status.”

PANEL: Appellate Immigration Judges Grant, Mann, O’Connor

OPINION BY: Judge O’Connor

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

PWS

06-03-17

INTRODUCING NEW COMMENTATOR — Hon. Jeffrey Chase — “Matter Of L-E-A: The BIA’s Missed Chance” — Original For immigrationcourtside!

Hi immigrationcourtside.com readers:

I am delighted to provide an original article by my good friend and colleague the Honorable Jeffrey Chase, who recently joined us in the ranks of the “retired but still engaged.” Judge Chase is a former U.S. Immigration Judge in New York, a former Senior Attorney Adviser at the BIA, and a former sole immigration practitioner in New York. He’s also a gentleman, a scholar, and an immigration historian. In a subsequent post I’ll be providing some links to parts of the “Chase Immigration History Library” which has previously been published by our friend and former colleague Judge Lawrence O. Burman in the FBA’s The Green Card.

Welcome to retirement and to immigrationcourtside, Judge Chase! We live in interesting times. Enjoy the ride.

Now, for your reading pleasure, here’s the complete original version of Judge Chase’s article about a recent BIA precedent. Enjoy it!

Matter of L-E-A-

Matter of L-E-A-: The BIA’s Missed Opportunity

Jeffrey S. Chase

On May 24, the Board of Immigration Appeals published its long-anticipated precedent addressing family as a particular social group, Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017). Thirteen amicus briefs were received by the Board addressing the issue of whether a “double nexus” is required in claims based on the particular social group of family. The good news is that the Board did not create a “double nexus” requirement for family-based PSG claims. In other words, the decision does not require an asylum applicant to prove both their inclusion in the social group of X’s family, and then also establish that X’s own fear is on account of a separate protected ground.

Nevertheless, the resulting decision was highly unsatisfying. The Board was provided a golden opportunity to adopt the interpretation of the U.S. Court of Appeals for the Fourth Circuit, which has held persecution to be “on account of” one’s membership in the particular social group consisting of family where the applicant would not have been targeted if not for their familial relationship. Such approach clearly satisfies the statutory requirement that the membership in the particular social group be “at least one central reason for persecuting the applicant.” If the asylum seeker would not have been targeted if not for the familial relationship, how could such relationship not be at least one central reason for the harm? L-E-A- rejected this interpretation, and instead adopted a much more restrictive “means to an end” test. Under L-E-A-, even though the respondent would not be targeted but for her familial relationship to her murdered husband, she would not be found to have established a nexus because the gangsters she fears do not wish to harm her because of an independent animus against her husband’s family. Rather, targeting her would be a means to the end of self-preservation by attempting to silencing her to avoid their own criminal prosecution.

Under the fact patterns we commonly see from Mexico and the “northern triangle” countries of Central America, claims based on family as a particular social group will continue to be denied, as such fears will inevitably be deemed to be a means to some criminal motive of gangs and cartels (i.e. to obtain money through extortion or as ransom; to increase their ranks; to avoid arrest) as opposed to a desire to punish the family itself. Applying the same logic to political opinion, a popular political opponent of a brutal dictator could be denied asylum, as the dictator’s real motive in seeking to imprison or kill the political opponent could be viewed as self-preservation (i.e. avoiding losing power in a free and fair election, and then being imprisoned and tried for human rights violations), as opposed to a true desire to overcome the applicant’s actual opinions on philosophical grounds.

Sadly, the approach of L-E-A- is consistent with that employed in a line of claims based on political opinion 20 years ago (see Matter of C-A-L-, 21 I&N Dec. 754 (BIA 1997); Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997); Matter of V-T-S-, 21 I&N Dec. 792 (BIA 1997)) in which attempted guerrilla recruitment, kidnaping, and criminal extortion carried out by armed political groups were not recognized as persecution where the perpetrator’s motive was to further a goal of his/her political organization as opposed to punishing the asylum applicant because of his/her own political opinion.

Nearly a decade earlier, an extreme application of this “logic” resulted in the most absurd Board result of to date. In Matter of Maldonado-Cruz, 19 I&N Dec. 509 (BIA 1988), the Board actually held that a deserter from an illegal guerrilla army’s fear of being executed by a death squad lacked a nexus to a protected ground, because the employment of death squads by said illegal guerrilla army was “part of a military policy of that group, inherent in the nature of the organization, and a tool of discipline,” (to quote from the headnotes). After three decades of following the course of such clearly result-oriented decision making, the Board missed an opportunity to right its course.

The author formerly served as an immigration judge, and as a staff attorney at the Board of Immigration Appeals.

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

I agree with Judge Chase that this is a missed opportunity that will come back to haunt all of us. A correct decision would have allowed many of the Central American asylum seekers clogging the court system at all levels to be granted needed protection, either at the USCIS or in court. Here is a link to my prior blog and “alternative analysis” of L-E-A-.

http://wp.me/p8eeJm-Sh

Instead, I predict that some of these cases could still be “kicking around the system” somewhere a decade from now, unless some drastic changes are made. And the type of positive, due process, fairness, and protection oriented changes needed are not going to happen under the Trump Administration. So, the battles will be fought out in the higher courts.

Although the BIA did it’s best to obfuscate, it’s prior precedent in Matter of J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007) basically established a “common sense/but for” test for one central reason. In a mixed motive case, if the persecution would have occurred notwithstanding the protected ground, then it is tangental, incidental, and not “at least one central reason.” On the other hand, if “but for” the protected ground the perseuction would not have occurred, that ground is at least “one central reason” of the persecution.

In L-E-A- the respondent would not have suffered threats and attempts to kidnap him “but for” his membership in the family. Hence family clearly is “at least one central reason” for the persecution. That’s basically the test the Fourth Circuit Court of Appeals would apply.

It’s a fairly straightforward case. The respondent in L-E-A- satisfies the refugee definition. In fact, the serious threats delivered by a gang which clearly has the ability and the means to carry them out amounts to past persecution. Hence, the respondent is entitled to the rebuttable presumption of future persecution.

Instead of properly applying its own precedents and reaching the correct result, the BIA launches into paragraphs of legal gobbledygook designed to mask what’s really going on here: manipulating the law and the facts to deny protection to Central American refugees whenever possible.

I know, this respondent is from Mexico; but, the BIA’s intended target obviously is Northern Triangle gang-based asylum claims. This precedent gives the Immigration Judges and Asylum Officers lots of “hooks” to deny claims by women and children fleeing family-targeted gang violence.

And, it insures that nobody without a really good lawyer and the ability to litigate up to Courts of Appeals if necessary even has a chance. The BIA is certainly well aware that the Trump Administration is pulling out all the stops to effectively deny counsel to arriving asylum seekers by a combination of using expedited removal, increasing negative credible fear determinations, and detaining everyone in out of the way locations where conditions are discouraging and pro bono counsel are not readily available.

Yeah, I don’t suppose any of this is going to bother Trump Administration officials any more than it did the BIA’s DOJ bosses during the Bush and Obama Administrations. Some negative case precedents on repetitive Central American claims proved mighty handy in border enforcement efforts and “don’t come, you’ve got no chance” publicity campaigns. The only problem is the it twists protection law out of shape.

Finally, let the record reflect that I lodged a dissent in Matter of C-A-L-, 21 I&N Dec. 754 (BIA 1997); Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997); and Matter of V-T-S-, 21 I&N Dec. 792 (BIA 1997), wrongly decided BIA precedent cases cited by Judge Chase. Indeed, Matter of T-M-B- eventually was reversed by the Ninth Circuit Court of Appeals, Borja v. INS, 175 F.3d 332 (9th cir. 1999), something which many BIA Appellate Judges only grudgingly acknowledged in later cases.

So, it will be left for the Courts of Appeals to straighten out nexus in the family context. Or not.

Again, welcome Judge Chase. Look forward to hearing more from you.

PWS

06-03-17

NEW PRECEDENT: BIA On “Receipt Of Stolen Property” –Matter of ALDAY-DOMINGUEZ, 27 I&N Dec. 48 (BIA 2017) — Still Getting It Wrong After All These Years — Read My “Dissenting Opinion!”

https://www.justice.gov/eoir/page/file/970806/download

Here’s the BIA headnote:

“The aggravated felony receipt of stolen property provision in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), does not require that unlawfully received property be obtained by means of common law theft or larceny.”

PANEL: BIA Appellate Immigration Judges Pauley, Guendelsberger, and Kendall Clark

OPINION BY: Judge Pauley

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

I respectfully dissent.

The Immigration Judge got it right. Under the “plain meaning” of the statute, the respondent is not an aggravated felon. Therefore, the DHS appeal should be dismissed.

Nearly 17 years ago, when I was Chairman of the BIA, I joined the dissenting opinion of Judge Lory D. Rosenberg in a related case, Matter of Bhata, 22 I&N Dec. 1381 (BIA 2000) https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3437.pdf which is cited by this panel in Matter of Alday-Dominguez. Indeed, the panel relies on Bhata to support it’s incorrect decision.

However, as Judge Rosenberg pointed out cogently in her dissent:

Accordingly, the modifying parenthetical phrase helps only to elucidate the main clause of the provision. Although the language “theft offense” may require our interpretation, the parenthetical must be read according to its own terms in the context of that subsection of the Act. The phrase “(including receipt of stolen property)” after the word “offense” limits the crimes that are included within the phrase “theft offense.” United States v. Monjaras-Castaneda, supra, at 329 (citing John E. Warriner & Francis Griffith, English Grammar and Composition (Heritage ed., Harcourt Brace Jovanovich 1977)). Specifically, the parenthetical provides that a “theft offense” encompasses the particular offense of receiving stolen property (which, by implication and judicial interpretation, is not a theft).

Matter of Bhata, supra, at 1396 (Rosenberg, AIJ dissenting).

Clearly, as pointed out by Judge Rosenberg, under a “plain reading” of the statutory language, “receipt of stolen property” is a “subgroup” of a theft offense. Consequently, the unlawfully received property must have been obtained by “theft.” The California statute includes things other than property obtained by theft, specifically objects obtained by “extortion.”

Therefore, under the “categorical approach,” the California statute is broader than the aggravated felony offense described in section 101(a)(43)(G) of the Act. Accordingly, the DHS fails to establish that the respondent is removable under that section. Hence, the Immigration Judge correctly terminated removal proceedings, and the DHS appeal should be dismissed.

The majority is just as wrong today as it was in Bhata. Remarkably, a member of this panel, Judge Guendelsberger, along with Judge Gus Villageliu and Judge Neil Miller, joined our dissent in Bhata. Sadly, over the course of his unjustified exile, followed by re-education, rehabilitation, and reappointment to his Appellate Judgeship, my friend and colleague’s views must have changed since the days when he stood up with the rest of us for respondents’ legal rights against the majority of our colleagues who all too often bought the Government’s arguments, even when they were less than persuasive.

Just this week, in a unanimous decision written by Justice Clarence Thomas, the Supreme Court reinforced the “plain meaning” analysis in applying the categorical approach to an aggravated felony removal provision involving “sexual abuse of a minor.” Esquivel-Quintana v. Sessions, ___ U.S. ___ (2017). Yet, the panel seems “tone-deaf” to the very clear message from Justice Thomas and his colleagues about the impropriety of manipulating clear statutory language to achieve a finding of removal.

In conclusion, the respondent has not been convicted an of an aggravated felony under section 101(a)(43)(G) of the Act by virtue of his conviction for receiving stolen property under the California Penal Code. Consequently, the Immigration Judge reached the correct result, and the DHS appeal should be dismissed.

Therefore, I respectfully dissent from the panel’s decision to sustain the DHS appeal.

Paul Wickham Schmidt

Former BIA Chairman, Appellate Immigration Judge, & United States Immigration Judge (Retired)

Entered: June 2, 2017

GAO Report Recommends Improvements In U.S. Immigration Court Hiring, Technology, Data Analysis, & Oversight!

Here’s a link to the entire package, including highlights, summary of recommendations, and the full 153 page report:

http://www.gao.gov/products/GAO-17-438

The part of the GAO study that I participated in, entitled “Experts and Stakeholders Have Proposed Restructuring EOIR’s Immigration Court System,” may be found at pages 73-87 of the full GAO report.

Lots to think about here. But one thing is clear: EOIR needs some fundamental changes and reforms for the U.S. Immigration Courts to survive as an institution. Notwithstanding EOIR’s positive, yet somewhat bureaucratic, “official response” to the draft version of the report, whether those changes can and will be made within the structure of the current Department of Justice remains to be seen. If I were an oddsmaker, I’d give it somewhat less than a 50-50 shot.

PWS

06-02-17

Led By Justice Thomas, Unanimous Supremes Reject USG’s Attempt To Deport Mexican Man For Consensual Sex With A Minor — “Strict Interpretation” Carries The Day!

Here is then full text of the opinion in Esquivel-Quintana v. Sessions:

https://www.supremecourt.gov/opinions/16pdf/16-54_5i26.pdf

Here’s a key excerpt from Justice Thomas’s opinion:

“Relying on a different dictionary (and “sparse” legislative history), the Government suggests an alternative “‘everyday understanding’” of “sexual abuse of a minor.” Brief for Respondent 16–17 (citing Black’s Law Dictionary 1375 (6th ed. 1990)). Around the time sexual abuse of a minor was added to the INA’s list of aggravated felonies, that dictionary defined “[s]exual abuse” as “[i]llegal sex acts performed against a minor by a parent, guardian, relative, or acquaintance,” and defined “[m]inor” as “[a]n infant or person who is under the age of legal competence,” which in “most states” was “18.” Id., at 997, 1375. “‘Sex- ual abuse of a minor,’” the Government accordingly contends, “most naturally connotes conduct that (1) is illegal, (2) involves sexual activity, and (3) is directed at a person younger than 18 years old.” Brief for Respondent 17.

We are not persuaded that the generic federal offense corresponds to the Government’s definition. First, the Government’s proposed definition is flatly inconsistent with the definition of sexual abuse contained in the very dictionary on which it relies; the Government’s proposed definition does not require that the act be performed “by a parent, guardian, relative, or acquaintance.” Black’s Law Dictionary 1375 (6th ed. 1990) (emphasis added). In any event, as we explain below, offenses predicated on a special relationship of trust between the victim and offender are not at issue here and frequently have a different age requirement than the general age of consent. Second, in the context of statutory rape, the prepositional phrase “of a minor” naturally refers not to the age of legal competence (when a person is legally capable of agreeing to a contract, for example), but to the age of consent (when a person is legally capable of agreeing to sexual intercourse).

Third, the Government’s definition turns the categorical approach on its head by defining the generic federal offense of sexual abuse of a minor as whatever is illegal under the particular law of the State where the defendant was convicted. Under the Government’s preferred ap- proach, there is no “generic” definition at all. See Taylor, 495 U. S., at 591 (requiring “a clear indication that . . . Congress intended to abandon its general approach of using uniform categorical definitions to identify predicate offenses”); id., at 592 (“We think that ‘burglary’ in §924(e) must have some uniform definition independent of the labels employed by the various States’ criminal codes”).

The structure of the INA, a related federal statute, and evidence from state criminal codes confirm that, for a statutory rape offense to qualify as sexual abuse of a minor under the INA based solely on the age of the participants, the victim must be younger than 16.”

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

Notwithstanding a supposedly “conservative” Court, going back several Administrations the USG has been losing on a surprisingly regular basis in its attempts to take the most extreme and inclusive interpretations of various already very harsh deportation provisions. And, “strict constructionists” like Justice Thomas and the late Justice Scalia have sometimes had just as much problem with the Government’s overreach as have supposedly more liberal or “middle of the road” justices. That’s why I’m not convinced that Justice Gorsuch (who did not participate in this case) will be as much of a “Government ringer” as some believe, at least in immigration matters.

Despite a number of notable setbacks at the Court, DHS, DOJ, and the BIA all seem to be rather “tone deaf” to the Court’s message. The Executive Branch continues to take the most extreme anti-immigrant positions even where, as in this case, it requires ignoring the “unambiguous” statutory language.

Given the “maximo enforcement” posture of the Trump Administration, there is little reason to believe that the Executive Branch will “get” the Court’s message about more reasonable interpretations of deportation statutes. Hopefully, the Court will continue to stand up against such abuses of Executive authority.

PWS

05-31-17

Has Retired U.S. Immigration Judge Wayne Iskra’s Famous “Two Taco Rule” For Material Support Scored A Comeback? — Recent Unpublished BIA Seems To Be “Channeling Iskra” — And, That’s A Good Thing!

My good friend and esteemed retired colleague Judge Wayne Iskra of the Arlington Immigration Court used to apply a basic common sense rule: handing over your lunch bag with a couple of tacos (or a ham sandwich) or the equivalent would not be considered “material” support. I don’t remember him ever getting reversed on it; perhaps nobody wanted to appeal. I also used it with success during my time in Arlington.

Now, it seems like a BIA panel is thinking along the same lines in an unpublished opinion written by Appellate Immigration Judge John Guendelsberger for a panel that also included Chairman/Chief Appellate Immigration Judge David Neal and Appellate Immigration Judge Molly Kendall Clark.

Read the entire, relatively short, opinion here.

BIA Dec. 5-18-17_Redacted

Seems that this is just the type of important issue on which the BIA should issue a precedent decision. I’m not sure that all BIA panels are handling this issue the same way.

Thanks to Professor Stephen Yale-Loehr at Cornell Law and Dan Kowalski over at LexisNexis for sending this my way.

PWS

05-30-17

Split 1st Cir. Bops BIA For Failing To Consider Reg Requiring That Resettlement Be “Reasonable” — Garcia-Cruz v. Sessions

http://media.ca1.uscourts.gov/pdf.opinions/15-2272P-01A.pdf

“8 C.F.R. § 1208.13(b)(3), however, lists a number of factors that an adjudicator should consider. “[W]hile the IJ and BIA do not necessarily have to address each of [8 C.F.R. § 208.13(b)(3)’s] reasonableness factors explicitly . . . the agency must explain why the factors that cut against the asylum applicant outweigh the factors in his favor.” Khattak v. Holder, 704 F.3d 197, 207 (1st Cir. 2013); see also Saldarriaga v. Gonzales, 241 F. App’x 432, 434 (9th Cir. 2007) (remanding asylum petition for further review because “the IJ did not consider whether [the petitioner’s] relocation would be reasonable”). In Khattak, the BIA determined that the petitioner could relocate to another part of Pakistan where he owned a home and had briefly lived twenty years earlier. 704 F.3d at 206-07. We remanded to the BIA, however, because (1) “neither the IJ nor the BIA addressed evidence in the record indicating that” the petitioner would not be safe in that area and (2) “neither the IJ nor the BIA made any mention of [the reasonableness] factors.” Id. at 207.

          Relevant factors here include:

 “ongoing civil strife within the country “(the IJ found that “electoral violence” is common “in every electoral cycle”);
 “economic…infrastructure “(IJ found that relocation “would be economically difficult”);
 “socialandculturalconstraints”(García-Cruz speaks Quiché, a minority language that has no official status and is spoken mainly in Guatemala’s central highlands); and
 “familial ties”(all of García-Cruz’s extended family live in Chixocol).

-Yet the IJ and the BIA discussed only the fact that García-Cruz’s wife and children were in Salamá. They did not address evidence in the record that appears to undercut the conclusion that García- Cruz could reasonably relocate within Guatemala — for example, García-Cruz’s testimony that he could not live with his wife in Salamá and does not “have a home . . . [or] a job” there. Thus, neither the BIA nor the IJ “presented a reasoned analysis of the evidence as a whole.” Id. at 208 (quoting Jabri v. Holder, 675 F.3d 20, 24 (1st Cir. 2012)).

García-Cruz asserts that “every single factor” supports a conclusion that he cannot reasonably relocate, but he does little to develop this argument. He then asserts that the BIA’s “unfounded conclusion . . . itself requires reversal.” That is not accurate. To reverse the BIA’s order, rather than simply remand it, the evidence must compel us to conclude that it would beunreasonableforGarcía-CruztorelocatewithinGuatemala. Id. at 207 (citing INS v. Elías-Zacarías, 502 U.S. 478, 481 n.1 (1992)). There is significant evidence in the record supporting a conclusion that relocation would be unreasonable. But García- Cruz has understandably focused on the BIA’s failure to properly analyze the reasonableness factors, rather than whether the evidence compels a finding that internal relocation would be unreasonable, and neither the IJ nor the BIA weighed the reasonableness factors. Given the limited analysis on this issue, we think it best to remand to the BIA to consider it fully. We therefore grant the petition for review, vacate the BIA’s order, and remand for further proceedings.”

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

PRACTICE POINTER:

8 C.F.R. § 1208.13(b)(3) requires that internal relocation not just be “possible,” but also must be “reasonable” under all of the circumstances. Sometimes Immigration Judges at both the trial and appellate level ignore this requirement and the relevant regulation. Attorneys challenging “internal relocation” should be sure to cite the regulation and refer specifically to the non-exclusive list of the type of factors that should be considered.

Additionally, as pointed out by the 1st Circuit majority, the BIA and the IJ could have found that the respondent suffered past persecution, thus shifting the burden to the DHS to provide that there was no reasonably available internal relocation alternative. In cases of this type, where a finding granting protection could have been made, but the BIA chose not to, it appears that the BIA has both failed to follow the generous dictates of their own precedent in Mogharrabi, but also has abandoned the vision of “guaranteeing fairness and due process for all.” “Close cases” should go to the respondent under Cardoza-Fonseca and Mogharrabi. But, for the last decade plus, the BIA has been unwilling to follow the law and its own precedents mandating generous treatment of asylum seekers.

PWS

05-29-=17

POLITICO Covers “Under The Radar” Joint Departures Of EOIR’s Top Execs!

Subject: POLITICO’s Morning Shift: U.S. visas down for Muslim-majority countries — Immigration court chiefs leave — Democrats make minimum wage pledge

By Ian Kullgren | 05/26/2017 10:04 AM EDT

With help from Bianca Padró Ocasio, Ted Hesson and Mel Leonor

U.S. VISAS DOWN FOR MUSLIM-MAJORITY COUNTRIES: “President Donald Trump’s ‘Muslim ban’ may be tied up in court, but newly released figures show his administration is issuing fewer visas to visitors from Arab and Muslim-majority countries,” POLITICO’s Nahal Toosi and Ted Hesson report.

“Data posted online this week by the State Department showed that non-immigrant visas granted to people from nearly 50 Muslim-majority countries were down almost 20 percent in April compared to the 2016 monthly average,” they write. “When only Arab countries were considered, non-immigrant visas were down nearly 30 percent in April compared to the 2016 monthly average. Visas issued to the six countries targeted by Trump’s March 6 travel ban – Iran, Syria, Sudan, Somalia, Libya and Yemen – declined even further, down 55 percent compared to the 2016 monthly average.”

“Stephen Pattison, an immigration lawyer in Maryland who spent nearly three decades as a State Department consular officer, said he thinks Trump policies are having a ‘chilling effect’ on travel to the United States from Muslim nations…. ‘Some people may have canceled trips,’ Pattison said. ‘Some people may have traveled last year but not this year. But I think it would be naive to assume that’s what’s going on in Washington isn’t having an effect on consular adjudications.'” More here.

GOOD MORNING. It’s Friday, May 26, and this is Morning Shift, POLITICO’s daily tipsheet on employment and immigration policy. Send tips, exclusives, and suggestions to thesson@politico.com, mlevine@politico.com, mleonor@politico.com, ikullgren@politico.com and tnoah@politico.com. Follow us on Twitter at @tedhesson, @marianne_levine, @melleonor_, @IanKullgren, and @TimothyNoah1.

PROGRAMMING NOTE – Due to the Memorial Day holiday, Morning Shift will not publish on Monday, May 29. Our next Morning Shift will publish on Tuesday, May 30. Please continue to follow Pro Employment and Immigration issues here.

IMMIGRATION COURT CHIEFS LEAVE: The director and deputy director of the federal immigration courts will leave the office by the end of the month, two sources familiar with the situation told Morning Shift. The courts, known as the Executive Office for Immigration Review, fall under the purview of the Justice Department.

Director Juan Osuna and Deputy Director Ana Kocur announced their departures in a staff-wide email. The reasons for their resignations are unclear, but both assumed their positions during the Obama administration, Osuna in 2011 and Kocur in 2012. Neither EOIR nor the Justice Department responded to requests for comment.

Attorney General Jeff Sessions has promised immigration enforcement will be a centerpiece of his approach to criminal justice, and the next director will be under pressure to speed up deportations and clear the immigration case backlog, currently at nearly 586,000 cases, according to the Transactional Records Access Clearinghouse at Syracuse University.

Jeremy McKinney, a liaison to the office for the American Immigration Lawyer’s Association, said Osuna oversaw the courts during a difficult period. “He was dealing with very limited resources,” McKinney said. The next director will have more, if the Trump administration gets its way. The White House budget proposal released this week called for the hiring of an additional 75 immigration judges and roughly 375 support personnel.

DEMOCRATS MAKE MINIMUM WAGE PLEDGE…: First 100 days? Old hat. House Minority Leader Nancy Pelosi said Thursday that Democrats would take up a measure to raise the minimum wage within the first 100 hours after they regain the majority, assuming they win it back in next year’s election. (That’s a pretty big if.) Pelosi made the pledge alongside a handful of other Democratic lawmakers and Sen. Bernie Sanders (I-Vt.) as they announced legislation to raise the hourly minimum wage to $15, up from the current $7.25, by 2024.

Democrats are making the pledge part of their campaign strategy for 2018. But even if they fulfill it, don’t hold your breath for it to be signed into law so long as Trump is in the White House. Even many Democrats, Hillary Clinton included, favored an increase only to $12 as recently as last year. Trump proposed an increase to $10 during the campaign, but only after previously suggesting no increase (and even calling into question whether the federal government should set an hourly minimum at all). Trump hasn’t touted the $10 proposal since, and he seems unlikely to. POLITICO’s Elana Schor writes that the Democrats’ embrace of $15 demonstrates the influence that Sanders and the left wing of the Democratic party now wield. More here.

… AND REPUBLICANS FIGHT BACK: Also on Thursday, Rep. Phil Roe (R-Tenn.) and half a dozen other Republicans re-introduced legislation to overhaul the National Labor Relations Act to weaken unions’ influence. The so-called Employee Rights Act would allow union members and nonmembers alike to withhold that portion of dues or fees that supports political activities by a union that bargains collectively on their behalf. The bill would also require union locals to conduct a recertification election every year; forbid union leaders from calling a strike without a vote of their members; and criminalize coercion by union leadership (though the violent threats that provision is aimed at are already covered by existing laws). “The rights of American workers were under attack during the Obama presidency,” Roe said in a written statement, “and it is time to restore those rights and work to foster a pro-growth, pro-employee environment.”

Republicans introduced similar legislation three times while President Barack Obama was in office, Sean Sullivan writes in the Washington Examiner. But it isn’t clear that Trump, who has tried to cast himself as a friend to unions, would support the bill. During the election, Trump’s campaign resisted efforts to be pinned down. More here.

DURING SCHOOL HOURS? A Louisiana charter school, International High School of New Orleans, needs to make a dozen modifications to its employee handbook to comply with federal labor laws – including axing a policy that prohibits teachers from using social media during school hours. An administrative law judge ruled Wednesday that the policy runs afoul the National Labor Relations Act. The judge also took issue with a policy that prohibits teachers from using school computers to access social media websites, and another that prohibits teachers from conducting personal business during school hours. The ruling touches on two issues of contention between charter school advocates and unions: whether unions belong in charter schools, and whether charter schools are sufficiently “private” to fall under the jurisdiction of federal labor law. Read the ruling here.

A CASE AGAINST PLAs: Ohio schools built under government-mandated project labor agreements cost 13.12 percent more than schools that were built through competitive bidding, according to a new study by Beacon Hill Institute commissioned by the Associated Builders and Contractors. The study, which looked at schools built since 2000, calculated that PLA constructions cost $23.12 more per square foot than their non-PLA counterparts. Read the study here.

HOGAN TO VETO PAID LEAVE BILL: Maryland Gov. Larry Hogan will veto a paid leave bill that would have given workers in that state five days’ annual paid sick leave. The bill covered all employers of at least 15 workers, but the Republican governor, who proposed addressing paid sick leave with incentives for employers, called it “simply very bad policy.” Hogan said he plans to issue a series of executive orders relating to paid sick leave, including the creation of task force to study the issue. He also plans to mandate paid sick leave for contract employees of the state’s executive branch. Democrat lawmakers will try to override the veto. More from the Baltimore Sun here.

UNIONS SUE TO BLOCK KENTUCKY RIGHT TO WORK LAW: “Organized labor struck back Thursday against Kentucky’s right-to-work law, filing a lawsuit that claims the ban on mandatory union fees in workplaces violates the state’s Constitution,” the Associated Press reports. “The Kentucky State AFL-CIO and Teamsters Local 89 filed the suit, which asks a judge to temporarily block the right-to-work law while the suit proceeds. The labor groups said the law should be struck down for violating numerous sections of the Kentucky Constitution.” More here.

INDY MAY HOLD OFF ON MINIMUM WAGE HIKE: “Indianapolis Mayor Joe Hogsett is urging the City-County Council to hold off on setting a $13-an-hour minimum wage for staff while his office works to eliminate the city’s structural deficit,” James Briggs writes for the Indy Star. “Hogsett on Wednesday said he does not support immediate passage of Proposal 92, which would raise wages for 365 city and county workers who earn between $9.13 per hour and $12.98 per hour.” More here.

ICE ARRESTS NEARLY 200 IN LA: ICE is touting the arrests of 188 undocumented immigrants in the Los Angeles area during a five-day “expanded enforcement” operation that captured a “convicted rapist and a previously deported cocaine trafficker,” ICE said in a written statement Thursday. In addition to identifying where each arrest took place, the ICE statement identified the types of previous criminal convictions and each person’s country of origin.

“Since President Trump signed the Executive Orders regarding immigration enforcement priorities,” ICE said, “ICE has arrested more than 41,000 individuals nationwide who are either known or suspected of being in the country illegally, a nearly 40 percent increase over the same period in 2016.”

COFFEE BREAK:

– “Restaurant: ICE Agents Ate Breakfast Then Detained Employees,” from The Daily Beast

– “Bice: Sheriff Clarke directed staff to hassle plane passenger after brief exchange,” from the Milwaukee Journal Sentinel

– “Appeal says ruling that vindicated San Diego pension reform could create statewide problems,” from the San Diego Union-Tribune

– “Labor union calls on Harley-Davidson to abandon plan to build overseas plant,” from the Milwaukee Business Journal.

– “Elgin to opt out of Cook County minimum wage, sick leave requirements,” from The Chicago Tribune.

– “Editorial: Don’t tinker with teacher pensions,” from The Detroit Free Press

– “Mass. House Lawmakers Postpone Vote On Bill Aimed At Countering Trump’s Immigration Crackdown,” from WBUR

THAT’S ALL FOR MORNING SHIFT.

To view online:
http://www.politico.com/tipsheets/morning-shift/2017/05/26/us-visas-down-for-muslim-majority-countries-220535

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Thanks to the always wonderful Bianca Padró Ocasio for sending this item my way!

In my experience, it’s somewhat unusual for the top two career Senior Executives in an agency to depart simultaneously unless they are headed to the same place, which does not appear to be the case here. It’s also somewhat remarkable in light of both Osuna’s and Kocar’s fairly lengthy and very distinguished service to EOIR and the DOJ (Osuna was a Member, Vice Chair, and Chair at the BIA, and a Deputy Assistant Attorney General in the Civil Division, prior to becoming Director) that no official press release on the departures has been issued, and that both EOIR and DOJ refuse to comment. Usually, even when civil servants are effectively “forced out,” the Department gives them a “pat on the back” and “thanks for the service.”

Some have speculated that with AG Sessions’s overriding interest in immigration enforcement, EOIR will be more “directly controlled” by either the Deputy Attorney General or assistants to the Attorney General in the future. Another possibility is that Sessions will appoint a trusted member of his staff to serve as Director. My recollection is that while the Director is not a Presidentially appointed position, it can be filled by either a career or a non-career (i.e., political) SES appointment.

Stay tuned!

Have a great Memorial Day holiday.

PWS

05-26-17

NEW PRECEDENT: Family Is A PSG, But Beware Of Nexus — Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) — Read My “Alternative Analysis!”

https://www.justice.gov/eoir/page/file/969456/download

BIA Headnote:

“(1) Whether a particular social group based on family membership is cognizable depends on the nature and degree of the relationships involved and how those relationships are regarded by the society in question. (2) To establish eligibility for asylum on the basis of membership in a particular social group composed of family members, an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.”

PANEL: BIA Appellate Immigration Judges Greer, Malphrus, Liebowitz

OPINION BY: Judge Anne Greer

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

I was the Immigration Judge in one of the leading “family as a PSG” cases cited by the BIA, the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117, 124−25 (4th Cir. 2011). In Crespin, I had granted asylum to a Salvadoran family comprising a PSG of “family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses.”

The BIA reversed me on appeal, and the respondents sought judicial review in the Fourth Circuit. That Court (much to my delight and satisfaction, I must admit) reversed the BIA and agreed with me that the respondent’s PSG was valid.

Following that, family based PSGs came up frequently in the Arlington Immigration Court. However, in a number of cases, as in L-E-A-, in their haste to posit a valid family-based PSG, attorneys neglected to prove the nexus between the PSG and the harm, or, even more surprisingly, failed to show that the respondent was even a member of the proposed PSG. Details are important!

Nevertheless, since family-based PSG cases are often “grantable,” I can’t help wondering why the BIA selected a denial for the precedent, rather than putting forth a positive example of how family-based PSGs can be a legitimate means of granting protection under the law and thereby saving lives?

In L-E-A-, the PSG was the respondent’s membership in his father’s family. Gangs threatened him with harm because they wanted him to sell drugs in his father’s store, and he refused. The respondent’s membership in the family is immutable. Additionally, there is no reason to believe that the gangs would have threatened the respondent but for his membership in a family which ran a store where they wanted to sell drugs.

Consequently, the IJ and the BIA panel could just have easily found that “family membership” was at least one central reason for the threatened harm. To me, this seems like a better analysis. I find the panel’s observation that anyone who owned the store would have been threatened irrelevant. So what?

PWS

05-25-17

NEW PRECEDENT: Applicant Bears Burden Of Showing Mandatory Denial Inapplicable: MATTER OF M-B-C-, 27 I&N Dec. 31 (BIA 2017)

https://www.justice.gov/eoir/page/file/967306/download#31

BIA HEADNOTE:

“Where the record contains some evidence from which a reasonable factfinder could conclude that one or more grounds for mandatory denial of an application for relief may apply, the alien bears the burden under 8 C.F.R. § 1240.8(d) (2016) to prove by a preponderance of the evidence that such grounds do not apply.”

PANEL: Appellate Immigration Judges Malphrus, Mullane, Liebowitz

OPINION BY: Judge Mullane

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

This was an unusual case, with lots of competing evidence on both sides. But, normally, this issue came up in routine NACARA or even TPS cases.

Here’s a more “normal”scenario.” The respondent was a private in the El Salvaoran Army during the Civil War in the 1980s. The DHS introduces old country reports and excerpts from the “El Rescate Database” showing that the respondent’s unit was in the department where human rights abuses took place. That’s sufficient to shift the burden to the respondent. to prove he did not engage in persecution.

The respondent testifies that he performed routine duties around the base and was never involved on combat, never harmed any civilian, and never witnessed any civilian being harmed.

That’s the case! Now the Immigration Judge has to make a decision on that skimpy evidence.

Things to keep in mind:

!) The U.S. Government was supporting the Salvadoran military during the Civil War. Indeed, a number of the individuals that DHS now claims were “persecutors of others” received military training in the U.S. or from U.S. officers.

2) The INS and the Immigration Courts summarily rejected asylum claims from individuals who suffered severe human rights violations amounting to persecution inflicted by the Salvadoran Government, the Armed Forces, the Civil Patrol, and entities aligned with them, such as so-called “death squads.”

Victim or persecutor,

Friend or foe,

The U.S. system,

Is a tough go.

PWS

05-19-17

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