"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Category: Executive Office for Immigration Review (“EOIR’)
On August 30, 2023, Judge Leo A. Finston of the Newark Immigration Court granted asylum to a Cravath pro bono client persecuted by gang members in El Salvador.
Cravath’s client overheard the murder of his neighbors by a Salvadoran gang and, fearing retaliation from the gang, subsequently refused to provide police with information. Even so, he was repeatedly attacked and continued to receive threats to “cooperate with the gang.” He fled El Salvador and arrived at the Texas border in December 2017, turning himself in to United States immigration officials and requesting asylum. He was detained, and Human Rights First represented him before the Immigration Court in Newark, New Jersey.
In September 2018, Judge Finston denied the application for asylum, finding that, while the man was credible and had suffered PTSD from the events in El Salvador, “complaining witnesses against major Salvadoran gangs” were not a “particular social group” for purposes of asylum, and there was not sufficient probability that he would be tortured upon his return to El Salvador. In March 2019, the Board of Immigration Appeals (BIA) dismissed the initial appeal. Cravath became involved at this stage, briefing and arguing the appeal before the Third Circuit Court of Appeals.
On April 17, 2020, the Third Circuit issued a precedential opinion (see related news item here) granting the client’s petition for review, vacating the BIA’s removal order and remanding the case to the BIA for further proceedings. The Court held that “persons who publicly provide assistance against major Salvadoran gangs do constitute a particular social group” for purposes of asylum, and that the BIA erred in denying relief under the Convention Against Torture, finding that “it is clear to us, viewing the record as a whole, that [he] suffered torture”. The Court remanded the case to the BIA, and in December 2021, the BIA remanded the matter to the Newark Immigration Court for further proceedings.
By that time, Cravath’s client was living in hiding in El Salvador, and the Cravath team spent the next year and a half trying to secure his return for a new merits hearing, consistent with the Third Circuit’s opinion.
On July 20, 2023, at a Master Calendar Hearing before Judge Finston, the Cravath team argued the man had a meritorious case and constitutional due process and statutory rights to be present at his merits hearing, but the Department of Homeland Security took the position that it had no obligation to allow him to return. On August 30, 2023, the Cravath team appeared on the client’s behalf at a second Master Calendar Hearing, where Judge Finston found that, in light of the Third Circuit’s opinion and based on the record before him, it was clear the man qualified for asylum and no further proceedings were necessary.
The Cravath team was led by partner Wes Earnhardt and included associates Brian P. Golger and Ana C. Sewell.
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Many congrats to Cravath!
I told the BIA that witnesses were a PSG more than a decade ago! They wouldn’t listen, but the Fourth Circuit did! See Crespin-Valladares v. Holder, 632 F. 3d 171 (4th Cir. 2011). When will they ever learn?
With proper guidance from a competent BIA, this case should have been a “slam dunk grant” five years ago. This also illustrates the absurdity of those who disingenuously claim that asylum applicants can receive due process without competent representation! It also shows the legal and moral bankruptcy of “expedited docket gimmicks” that attempt to rush cases to denial and deportation without a realistic chance to get representation and prepare!
The U.S. asylum system would work much more fairly and efficiently with a BIA of recognized asylum experts! They are out here! Why hasn’t Garland reformed and reconstituted the BIA to get the job done?
Lives and the future of American law are at stake here!
It’s a huge deal! Dems must “lose” the arrogant “it’s only immigration” attitude that has prevented Dem Administrations from doing the correct, courageous (and smart) thing on immigration, human rights, social justice, and civil rights! Migrants’ rights are human rights are civil rights are everyone’s rights!
Judge Finston did the right thing on remand from the Circuit. I’d like to believe that with better guidance from the BIA he would have done it five years ago. The human impact of the abject failure of the BIA to provide positive leadership on GRANTING asylum in recurring situations is an incomprehensible drag on our justice system at many levels.
Better judges for a better America! And, it starts at the “retail level” with EOIR!
Many thanks to all involved in this effort, particularly Richard Mark and the Pro Bono Team at Gibson Dunn. Will the DOJ go down for the third time on interrelated notice issues before the Supremes? What if the BIA followed the statute and held DHS fully accountable? What if due process, fundamental fairness, and best practices were the mission of EOIR? (Hint, they once were the “noble vision” of EOIR — trashed by Administrations of both parties.)
Some Republican lawmakers are flagging Hamas’ attack on Israel as an example of why more security is needed at the southern U.S. border. Hamas militants breached a border fence and attacked Israeli villages bordering the Gaza Strip on Oct. 7.
“Potential terrorists are attempting to cross our southern border. In September alone, 18 illegal immigrants on the terror watchlist were caught at the border,” U.S. Sen. Marsha Blackburn, R-Tenn., posted Oct. 21 on X. “The attack on Israel should serve as a warning as to why we must secure the border.”
The next day, U.S. Rep. Kevin McCarthy, R-Calif., also mentioned the terrorist watchlist on NBC’s “Meet The Press.”
“We just caught 18 people, just last month, on the FBI terrorist watchlist, coming across our border,” McCarthy said. “More than 160 have done it this year, a record breaking.”
U.S. immigration officials have encountered rising numbers of people on the watchlist. But not everyone on the list is a terrorist, and not everyone encountered is allowed to enter the country.
Terrorism and immigration experts say that the threat of attacks in the U.S. and Israel are incomparable.
“They both involve borders, but the comparison ends there,” David Bier, an immigration expert at the libertarian Cato Institute, previously told us. “People aren’t crossing the border to conduct terrorist attacks or take over parts of the United States. A very small percentage may come to commit ordinary crimes, like selling drugs, but overwhelmingly, they are coming for economic opportunity and freedom.”
McCarthy’s office did not respond to our query for more information. A Blackburn spokesperson pointed us to a Fox News reporter’s post on X. Customs and Border Protection did not confirm whether 18 people were stopped in September.
Here’s what we know about who is on the terrorist watchlist, and what the data can and can’t tell us.
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Read Maria’s complete article which includes comments from real experts like Professor Stephen Yale Loehr, Professor Denise Gilman, Aaron Reichlin-Melnick, and others in addition to David Bier. They stand in sharp and long overdue contrast with the GOP’s alarmist, out of context, claims.
It’s little wonder that a party of anti-democracy activists, insurrectionists, and election deniers would want to deflect attention from themselves onto folks who are overwhelmingly coming to save their lives and to work hard and contribute to our economic growth!
I have previously “called out” Kristen Welker and NBC’s Meet the Press for giving McCarthy an unnecessary public forum for his alarmist narrative. See, e.g.,https://immigrationcourtside.com/2023/10/23/🚩politics-gops-bakuninist-clown-show-sows-american-chaos🤮☠️/. Worse yet, there was no effective “pushback” from Welker on McCarthy’s attempt to blame vulnerable asylum seekers for the political disorder and threats to our democracy that he and his righty GOP buddies helped sow!
Many thanks to Maria for setting the record straight and to the experts who were interviewed from her article!You actually did the “due diligence” that Welker and others often brush off when “doing immigration.”
Of course border security is important! A significant, achievable improvement would be to establish a fair, timely, functional asylum screening and adjudication system at ports of entry so that those seeking asylum will be motivated to use it (rather than attempting to “punish” and “deter” those who can’t use the current dysfunctional DHS/EOIR “system.”) That would give CBP a chance to concentrate on the real law enforcement challenge: identifying and stopping those who seek to harm the U.S. That’s going to take even better intelligence and more sophisticated efforts.
I also wouldn’t minimize that, as pointed out by the experts, CBP has been able to identify and deny entry to individuals on their list. That’s a sign of success, not failure!
To state the obvious, further cutting or restricting asylum (as many in the GOP disingenuously advocate) would only force even more of those seeking refuge into the hands of smugglers and push them into the dangerous lands between ports of entry. Misdirecting enforcement resources to fruitlessly and improperly trying to “deter” and “apprehend” those legitimately seeking refuge will only further dilute the attention that CBP can pay to any real dangers lurking at the border!
Because an appeal accepted under section 460.30 of the New York Criminal Procedure Law is classified as a direct appeal, a respondent with a pending appeal under this section does not have a final conviction for immigration purposes. Brathwaite v. Garland, 3 F.4th 542 (2d Cir. 2021), followed.
While a welcome victory for the respondent, notably, this precedent only happened because the Second Circuit had reversed and remanded the BIA’s incorrect application of the finality standards!Brathwaite v. Garland, 3 F.4th 542 (2d Cir. 2021). Without great pro bono lawyering on his side, this respondent would have joined the many others wrongfully removed by EOIR’s sloppy approach to the law and justice for persons who happen to be migrants.
In other words, the “good enough for government” approach, despite some improvements in judicial hiring, still infects EOIR under Garland. Rather than pouring more money into walls, prisons, false “deterrents,” and trying to strip rights from migrants, Congress and the Administration should be focused on solving these glaring due process and quality control issues in the current system!
As I say over and over, unlike some aspects of human migration, this is a solvable problem! It’s not rocket science! 🚀 It’s just good government, dynamic, courageous leadership, and common sense! Better judges 👩🏽⚖️ for a better America!🇺🇸
Many congrats to NDPA star attorney John Peng of Prisoners’ Legal Services of New York!
John Peng Esquire Staff Attorney Prisoners’ Legal Services of NY PHOTO: PLSNY
John is a terrific example of the importance of immigration clinical education and the Immigrant Justice Corps! Here’s his bio:
John Peng, Federal Litigation & Appellate Staff Attorney
John joined the Immigration Unit in August 2019 as an Immigrant Justice Corps Fellow. He received his J.D. from the University of Pennsylvania Law School. There, John was an active participant in the Transnational Legal Clinic and focused his coursework on immigration and international human rights law. John was admitted to practice law by the New York State Bar in January 2020.
Approximately four years out of law school, John is establishing legal precedents, saving lives, and leading the way for others! This type of “impact leadership by example” is exactly the vision that led to the establishment of the Immigrant Justice Corps! It’s also why aspiring lawyers who “want to make a difference” right off the bat should consider careers in immigration, human rights, and social justice!
WASHINGTON — An immigration judge and lawyer told a U.S. Senate Judiciary panel on Wednesday that an independent immigration court would help ease a backlog of more than 2 million pending cases.
Because the immigration court system is an arm of the U.S. Justice Department — the Executive Office for Immigration Review — each presidential administration has set immigration policy, and often those courts are subject to political interference, said Mimi Tsankov, an immigration judge, and Jeremy McKinney, an immigration attorney.
In the immigration court system, judges hold formal court proceedings to determine whether someone who is a noncitizen should be allowed to remain in the United States, or should be deported.
“Every administration has interfered with the courts. This undermines the courts’ integrity, and many of the executive branch’s manipulations of judges and their dockets simply backfire,” said McKinney, the former president of the American Immigration Lawyers Association.
Tsankov, the president of the National Association of Immigration Judges, said in order to alleviate the backlog of immigration court cases, Congress should establish an independent immigration court under Article I of the U.S. Constitution.
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“An independent board will begin the process of healing this broken system,” she said.
The witnesses also argued that many people going through the immigration system lack legal representation, which can greatly impact their outcome.
The top Republican on the Senate panel, John Cornyn of Texas, argued that most cases are without merit, as opposed to asylum cases, which are based on a credible fear of death or harm. He said that people are “clogging the courts” and are aware the severe backlogs will allow them to stay in the country. Some courts have backlogs until 2027.
Sen. Mazie Hirono, Democrat of Hawaii, pushed back.
“People who have attorneys are 10.5 times more likely to be granted relief,” she said. “So it is when they have attorneys that they can proceed with their asylum claims.”
She added that another issue is that many children who are unaccompanied, even some toddlers, are expected to legally represent themselves.
“There is no guarantee that children will also have a lawyer, and this is alarming because children are some of the most vulnerable people in our immigration system,” she said.
Cornyn said he did not believe that “the taxpayer should be on the hook” for paying for legal fees and representation.
McKinney said that those who have representation and are not detained are five times more likely to gain relief. Immigrants who are detained and have legal representation are 10 times more likely to be granted relief than those who do not have representation.
“The point is that representation ensures due process,” he said. “It also makes the system more efficient when all the parties know the rules and know how to present a case. Cases move faster.”
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Read the full article at the above link. You can also check out the full video of the hearing here:
In his opening statement, ranking GOP Sen. Cornyn made it very clear that fixing the Immigration Courts is a nonstarter for the GOP.
Instead of engaging on this critically important initiative, he wasted much of his introduction disingenuously repeating the oft-debunked claim of a connection between asylum seekers and fentanyl smuggling. See, e.g., “Who is sneaking fentanyl across the southern border? Hint: it’s not the migrants,”https://www.npr.org/2023/08/09/1191638114/fentanyl-smuggling-migrants-mexico-border-drugs.
Obviously grasping at straws, in the absence of any empirical support for his nativist “scare scenario,” Cornyn went so far as to suggest — of course without a shred of evidence — that perhaps “go-arounds” were smuggling fentanyl.
This theory appears particularly questionable in light of evidence that most fentanyl is successfully smuggled through ports of entry by U.S. citizens and legal residents. Why would cartels abandon proven successful methods of port of entry smuggling to entrust their cargos to individuals who might not even survive the border crossing and, if apprehended, would certainly be searched? Cornyn had no answer.
What does seem likely is that by concentrating border law enforcement largely on “apprehending” and fruitlessly trying to “deter” those merely seeking to turn themselves in to exercise legal rights, the USG has diverted attention and resources from real law enforcement like an anti-fentanyl strategy. That almost certainly would require undercover infiltration of smuggling rings — dangerous and sophisticated law enforcement operations far removed from “apprehending” folks who WANT to be caught because they were forced to leave their home countries, are unsafe in Mexico, and can’t wait to schedule asylum appointments at ports of entry through the badly flawed and inadequate “CBP One App!” Building a fair and efficient asylum system should even help CBP apprehend more of Sen. Cornyn’s “go arounds!”
But, Cornyn’s misdirection isn’t just a distraction; it’s actually dangerous! As the GOP has shown over and over, if you repeat a lie or myth enough times, folks start to believe it. Witness the demonstrably totally frivolous claims of election interference that drive much of the GOP’s agenda and has become “truth” for their misguided “base.”
A case in point is the outrageous political boondoggle recently carried out by Virginia’s right-wing Governor Glenn Youngkin. In response to Texas Gov. Greg Abbott’s White Nationalist plea, Youngkin wasted two million taxpayer dollars on a bogus detail of the National Guard to the Texas border, ostensibly to “protect Virginians from the scourge of fentanyl.”
What if Youngkin had spent the same amount of money supporting NGOs in Virginia struggling to resettle and represent migrants aimlessly bussed to the DMV by Abbott and DeSantis as part of a political stunt? Community social justice NGOs generally use funds more carefully and efficiently than GOP blowhards like Youngkin and co.
The GOP claim that most asylum claims are frivolous also is misleading. For those who can actually get a merits hearing on asylum at EOIR — often in and of itself no mean feat given the prevalence of “Aimless Docket Reshuffling” — TRAC statistics for FY 2022 show that 46% are granted. Seehttps://trac.syr.edu/whatsnew/email.221129.html#. And, this is in a system that is still heavily tilted against asylum seekers. EOIR still has many “holdover judges” from the Trump years who were hired not because of their expertise, qualifications, or reputations for fairness, but because their backgrounds indicated that they were likely to be unsympathetic to asylum seekers!
Admittedly, the manner in which EOIR keeps asylum statistics can make meaningful analysis difficult. For example, more than half of asylum “dispositions” are listed as “other” — which covers“abandoned, not adjudicated, other, or withdrawn,” a facially, at least partially, circular definition! Seehttps://www.justice.gov/media/1174741/dl?inline.
Moreover, since EOIR procedures generally require that all potential relief be stated at the time of pleading or presumptively be waived, prudence requires that the right to appply for asylum be protected, even if it is unlikely that the case will proceed to the merits on that application.
Also, it’s worth remembering that the Government already has a powerful tool for both identifying and quickly tossing frivolous asylum claims and expeditiously granting clearly meritorious claims to keep them out of the Immigration Court. It’s called the Asylum Office at USCIS! That despite much ballyhooed regulatory changes, DHS has failed to obtain “maximum leverage” from the credible fear/Asylum Office process is not a reason for eschewing EOIR reform!
What we can tell from the available data is that, rather than wasting more money on expensive and ineffective “deterrence gimmicks,” the best “bang for the buck” for the USG would be to invest in representation for asylum seekers and in a better, professionally-managed EOIR with better, independent judges, acknowledged experts in asylum law, who could “keep the lines moving” without denying due process or stomping on individual rights.They could also set helpful precedents for the Asylum Office. That’s what Congress and the Administration should be investing in.
Reforming the Immigration Courts and creating an independent Article I Court should be a high national priority. While no single action can bring “order to the border” overnight, fixing EOIR is an achievable priority that will support the rule of law and dramatically improve the quality and efficiency of justice at the border and throughout the U.S.
As Chairman Padilla (D-CA) said, this should be a bipartisan “no-brainer.” Just don’t look to today’s White-Nationalist-myth-driven GOP for help or rational dialogue on the subject.
EOIR HQ, Falls Church, VA (a/k/a “The Tower of Babel”) — EOIR and their DOJ handlers imposed designed-to-fail “dedicated dockets” on the public over the objections of advocates. Now they need the same experts they “blew off” to help them save their “due-process-denying rocket dockets!” By Pieter Bruegel The Elder Public Domain
Contact: Communications and Legislative Affairs Division Phone: 703-305-0289 PAO.EOIR@usdoj.gov
www.justice.gov/eoir @DOJ_EOIR
Oct. 17, 2023
EOIR to Host National Stakeholder Meeting Seeking to Increase
Pro Bono Representation for Immigration Courts with Dedicated Dockets
SUMMARY: The Executive Office for Immigration Review (EOIR) invites immigration law school clinical communities and pro bono organizations to attend a national stakeholder meeting for an open discussion on how to increase pro bono representation in immigration courts with Dedicated Dockets.
At this meeting, EOIR seeks input and recommendations on how the agency can better encourage and facilitate pro bono advocacy, either in person or remotely, at the following immigration courts with established Dedicated Dockets: Boston, Denver, Detroit, El Paso, Los Angeles – N. Los Angeles Street, Miami, New York – Broadway, New York – Varick, Newark, San Diego, San Francisco, and Seattle. See EOIR’s Policy Memorandum 21-23 for more details on this initiative.
EOIR continues to work to increase the representation rate and the number of practitioners available to represent noncitizens in immigration proceedings. Practitioners who volunteer their time to help those unable to afford counsel are a critical part of that effort.
Please join us for a targeted discussion with the goal of strengthening pro bono representation for the Dedicated Dockets.
DATE: TIME: LOCATION:
Oct. 26, 2023
1 p.m. – 2 p.m. Eastern Time
Live via Webex – Meeting Registration
All media inquiries should be directed to pao.eoir@usdoj.gov.
In reality, these ill-conceived and poorly-planned dockets have been “dedicated” to maximizing denials, minimizing due process, impeding effective representation, and developing an unfriendly atmosphere that will discourage asylum seekers from fully exercising their legal rights.
Some DOJ politicos and EOIR bureaucrats must belatedly be worrying about their “legacy,” future employability, or eventually being held accountable for plotting to deny due process to thousands of the most vulnerable humans! As usual, the immigration bureaucracy creates unnecessary problems, then leaves it to the NGO/advocacy community to bail them out!
It’s a deadly, counterproductive, wasteful, frustrating “downward cycle” that needs to stop! Why not “cut out the nonsense” by putting in charge those with the comprehensive knowledge, creative ideas, advanced skills, moral courage, and realistic foresight to solve these problems BEFORE they become self-created “crises?” Those needed leaders and judges are primarily OUTSIDE the USG right now. They need to be brought on board to solve the problems that are demonstrably beyond the ability, will, and skill set of the current immigration bureaucracy at DOJ and DHS!
Only those Immigration Judges granting at or above the (already substantially suppressed) national average should be allowed to hear asylum cases.
Reassign those BIA Appellate Judges who are not recognized asylum experts, and replace them with qualified asylum experts committed to providing and enforcing some positive guidance and best practices for asylum adjudication.
Identify and promptly grant the hundreds of thousands of meritorious asylum cases now moldering in the EOIR backlog (many victims of EOIR’s ADR) so that these refugees can get on with their lives and contribute fully to American society and our economy.
Dems have the power to reform EOIR — a huge “Federal Court system” that they exclusively control! Why are they afraid to use that power “to promote justice and resist evil?”
In the meantime, please take advantage of this chance to “enlighten” EOIR bureaucrats about what it’s really like to attempt to provide pro bono representation on “dedicated dockets” while dealing with their ADR on already-prepared cases that could and should have been granted long ago. Hopefully, some members of the media will also tune in to get a dose of the challenges of trying to fight for justice in America’s worst and least-user-friendly “courts!”
Honorable Mimi Tsankov U.S. Immigration Judge President, National Association of Immigration Judges (“NAIJ”)Hon. Samuel B. Cole Executive Vice President NAIJ PHOTO: NAIJ
Federal immigration judges Mimi Tsankov and Samuel B. Cole to address immigration courts backlog at Headliners Newsmaker, Oct. 18
October 16, 2023, 5:13 pm
WASHINGTON, Oct. 16, 2023 /PRNewswire/ — Judges Mimi Tsankov, a federal immigration judge in New York City, and Samuel B. Cole, a federal immigration judge in Chicago, will speak Wednesday, Oct. 18 at 10 a.m. at a National Press Club Headliners news conference about the pressures of the migrant crisis on the federal immigration court system.
NATIONAL PRESS CLUB LOGO. (PRNewsFoto/NATIONAL PRESS CLUB) (PRNewsfoto/National Press Club) (PRNewsfoto/National Press Club)
An unprecedented surge in migration has created a backlog of 2.6 million cases in the nation’s immigration courts resulting in long waits for hearings. Among other topics, the judges will address the recent assignment of judges to areas along the border. They will provide an update on the judges’ union efforts to restore rights lost during the previous administration.
Federal immigration judges are generally barred from speaking out on issues that affect their courts. Tsankov and Cole will speak in their capacity as president and executive vice president of the National Association of Immigration Judges (NAIJ), an affiliate of the International Federation of Professional and Technical Engineers (IFPTE).
The National Press Club is located on the 13th Floor of the National Press Building at 529 14th St., NW, Washington, D.C.
PRESS CONTACT: Cecily Scott Martin for the National Press Club; cscottmartin@press.org; (202) 662-7525
Yet, the mainstream media, Democrats, Civil Rights organizations, and commentators often pay scant attention to the outrageous dehumanizing chaos in our Immigration Courts. One contributing factor is that the DOJ has “muzzled” Immigration Judges from speaking out publicly about what’s happening in their courts, a questionable 1st Amendment suppression that a Federal District Judge recently “shrugged off.” See, e.g., https://knightcolumbia.org/cases/naij-v-neal.
This is a rare opportunity for the public to get insights on this critically important yet “below the radar screen court system” from two sitting judges. They apparently have “sidestepped” the DOJ’s censorship by appearing “solely in their capacity as officers of the National Association of Immigration Judges (“NAIJ”).” (Full disclosure: I am a retired NAIJ member.)
The NAIJ strives to provide professional training, encouragement of best practices, more independence, better working conditions, and more cooperation with parties appearing before the Immigration Courts. These positive efforts, among the few happening at EOIR, earned the NAIJ a “decertification” of their status as a union representing Immigration Judges during the Trump Administration.
Ironically, although the Biden Administration touts itself as the most “union-friendly Administration in history,” three years in, the NAIJ has yet to regain full recognition as a union.
“Pie in the sky?” Hardly! Undoubtedly, these measures could be carried out far less expensively than further, ultimately fruitless, border militarization and enhanced cruelty being pushed by the GOP and some Dems. And, they would be more effective in bringing “law and order” to the border and our overall legal system.
Fanned by alarmist narratives being spread by folks like Adams and Hochul (no, Governor, 8 billion people aren’t going to descend on your state — in fact, the U.S. has a “refugee/1,000 population ratio” far below that of many smaller, much poorer countries), and the mainstream media’s insatiable need for a “trumped-up invasion narrative” to create headlines and sound bites, I suspect that the Administration and Dem politicos might be prepared to “throw asylum seekers under the bus” to reach an agreement with the GOP to keep the Government open. After all, asylum seekers don’t vote, and their advocates have historically been good “team players” who go to bat for the Dem Party despite having their contributions, energy, and ideas consistently undervalued, even dissed, once elections are over.
Don’t do it Dems!Giving in to the righty nativists will NOT solve anything, nor will abandoning values help you in the next election! Indeed, the Administration could set more “world records” for exclusions, deportations, denials, imprisonments, wall-building, enforcement hiring, “rocket dockets,” and the GOP would still spout the same “open borders” myth, and the media would give it equal, or greater, time. They largely ignore HRF and other experts who actually understand the border, migration, and have practical, humane, if less inflammatory or drastic, solutions to offer.
The mainstream media seems to have endless time for folks like Trump, Gaetz, Jordan, Haley, Ramaswamy, etc., who have little to contribute to solving pressing national problems. Why aren’t they talking to the folks who understand migration, asylum seekers, the border, and the legal framework? Why aren’t they “headlining” and publicizing reasonable, humane, values-based solutions rather than promoting narratives of doom, hopelessness, and expensive, often illegal, cruelty as the only “solutions?” There actually have been some bipartisan proposals for addressing the border while respecting and even enhancing the rights of asylum seekers. See, e.g.,https://immigrationcourtside.com/2023/02/14/🇺🇸courtside-politics-rep-hillary-scholten-d-mi-is-part-of-a-bipartisan-group-of-new-house-members-reaching-across-the-aisle-in-an-attempt-to-govern-for-the-public-good/. But, you sure wouldn’t know it from listening to the so-called “mainstreamers!”
Here’s another fascinating thing. Humane, sensible, legally compliant, cost effective solutions to migration issues proposed by experts, many of whom are immersed in the reality on a daily basis, are often dismissed, if even mentioned, as “impractical,” “unrealistic,” “idealistic,” “costly.” On the other hand, when politicos, think tankers, reporters, commenters, profiteers, many largely removed from the human trauma of the border situation, present costly, proven to fail, draconian, often illegal measures directed against asylum seekers, the same prejorative, dismissive terms are seldom used.
Indeed, the worse, crueler, and more hare-brained a scheme is, the more likely it is to be mischaracterized as a “realistic response” to a hyped-up emergency! Somehow, wanton cruelty and end-running legal obligations are packaged as a “practical necessities,” while creative ideas on how to solve problems and make the current laws work are summarily brushed aside, often without meaningful analysis and discussion.
Beth Barkley thought she was attending a ceremony for International Day of the Girl on Wednesday. The high school English teacher stood in the library at Cardozo Education Campus as the city’s mayor explained the importance of attaining “educational equity across genders.”
But, in a ceremony focused mostly on her, Barkley learned that she had been named D.C’s 2024 Teacher of the Year.
“This year we have a teacher of the year who serves as a role model not only for her students, but for other teachers across the District,” said D.C. Mayor Muriel E. Bowser (D). “She has gone above and beyond her normal teaching duties to uplift student voices and inspire her students.”
Each year, educators across the city vie for the top honor, which comes with a $7,500 check and the chance to compete for National Teacher of the Year in a contest run by the Council of Chief State School Officers. Barkley, who teaches English and other classes to students who are new to the United States, was met with applause and sparkling pompoms wielded by students.
“This is a huge honor,” she said to the room of teachers, staff members and several of her students. “I have students that are changemakers. My students are leaders. … This is really for and because of them.”
For six years, I have represented adults, children and families who have fled persecution in their home countries and sought protection in the United States. My clients have traveled thousands of miles from countries including Nicaragua, Venezuela, Cameroon, Togo, Haiti, El Salvador, Honduras and Guatemala, arriving at the U.S.-Mexico border to seek asylum. They leave their homes, communities and culture because the pain and risks of fleeing pale in comparison to the dangers they will face if they stay.
I have seen the difference between the outcomes for clients who have meaningful access to legal counsel and due process, who are able to safely settle into a community as they pursue their cases, and people who are deprived of these basic human rights. But over the past several months there has been an onslaught of Biden administration policies designed with one goal: to rapidly deport people. These programs block people from a fair asylum process, and I am deeply concerned that thousands of individuals fleeing persecution will never be able to tell their stories and have a chance at safety in our country.
For the clients I have helped win asylum, the key to my representation was consistent and thorough communication. Through multiple sessions, we built a rapport, I provided them with information about their legal rights and the immigration system and they provided me with the details of their lives. These details formed the basis of their legal claims, which I assisted them in presenting to the immigration judge. The judge decided whether they could stay in the United States based on an individualized determination of their future risk of harm if deported.
When one of my clients and her six-year-old daughter completed their two-month journey from El Salvador to Texas, Customs and Border Protection detained them for three days and then released them with notice of their obligation to appear in immigration court. They made their way to the Midwest, where they sought legal representation.
At the National Immigrant Justice Center, my colleagues and I worked with the mother over several months to document her experiences of being raped, impregnated, beaten and locked up at home by her older relative. Finally safe in the United States, she started therapy and began working at a restaurant to support herself and her daughter. At her final immigration court hearing, she bravely testified about her traumatic past, and the immigration judge granted both mother and daughter asylum.
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Read the rest of Stephanie’s article at the link.
On the basis of reports like this, there is reason to believe that not only should many more of the individuals allowed to enter the U.S. be granted asylum under a properly functioning system, but that many of those barred, rejected, and deported are erroneously being returned to life-threatening situations.
This, of course, directly contradicts the restrictionist myths peddled by most GOP politicos and even some Dems. It also contradicts the fear-mongering and scare tactics employed by the right-wing media that has unfortunately spilled over into the so-called “mainstream media.”
The real “border crisis/tragedy” is the lack of a legitimate, well-functioning, fair, efficient system to carry out our legal obligations to asylum seekers under both domestic and international laws. Calls for more “deterrents, cruelty, walls, harsh imprisonment, lawless deportations, and truncations of already-routinely-violated rights” are not going to solve the real problems! Indeed, they are likely to make things even worse!
Proud to be a member of this great group fighting for due process. Also grateful for all the great lawyers and firms who have provided pro bono drafting assistance to “give us a voice that needs to be heard!”
In Immigration Court, the number one “internal” problem has probably been aimless docket reshuffling, where cases are repeatedly re-arranged depending on the priorities of different administrations. Other problems include inefficient Master Calendar Hearings and pre-trial conferences, insufficient guidance from the Board of Immigration Appeals, which leads to inconsistent decision-making, and not enough staff members to support the Immigration Judges. In addition, there is a shortage of DHS attorneys (the prosecutors), and those attorneys have insufficient power (or willingness) to resolve cases or narrow contested issues prior to the final hearing.
What does all this mean for asylum seekers? In court, cases are still being heard, though I expect that delays will increase and more cases will be rescheduled. We can also expect that more non-priority cases (i.e., people who do not have criminal or security issues) will be dismissed based on prosecutorial discretion. At the Asylum Office, nothing seems to be moving. You can try to expedite your case and if that fails, file a writ of mandamus to force the agency to adjudicate your application. Otherwise, I would not expect any progress any time soon.
Finally, we might as well end on a positive note. Having recognized that most asylum applicants will be stuck waiting for years and years, the government has recently increased the validity period of asylum-pending work permits from two years to five years. For asylum applicants, this change will save money and reduce stress, and for USCIS, it will reduce their workload and allow them to focus on other applications. I guess the lesson here is that every cloud has a silver lining–even a mushroom cloud.
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Read Jason’s full analysis at the link.
As Jason acknowledges, some of the drivers are “world events” over which — contrary to GOP and other nativist blather, often fanned by the so-called “mainstream media” — receiving countries like the U.S. have relatively little effective control. This is particularly true in the short run.
We’ve notoriously tried “taking over” countries in conflict. It never works! Moreover, it can eventually create additional refugee situations rather than resolving them. See, e.g., Afghanistan.
Nor are border barriers, razor wire, dungeons, arbitrary deportations, stripping asylum rights, xenophobic rhetoric, criminal prosecutions, killing some migrants by forcing ever more dangerous crossings, and a host of other unilateral measures pushed primarily by the GOP (but also by some Dems) going to change the actions of Maduro, Ortega, Putin, Diaz-Canel or any of the other authoritarian autocrats whose policies drive folks to flee their native lands and seek refuge abroad.
So, rather than wringing hands about what we can’t change, why not change that which is under our control? Long overdue, common-sense reforms and improvements in asylum adjudication, reception, and resettlement, some mentioned by Jason, could be achieved.
They won’t necessarily halt the flow of refugees, nor are they guaranteed to eliminate backlogs, particularly in the short run. But, they will reduce the backlogs, contribute mightily to a better U.S. legal system, and comply with our international and domestic legal obligations. That, in and of itself, appears to be a worthy and achievable goal. But, nobody in charge seems to be interested in anything but “quick fixes” — which aren’t really “fixes” at all, since they have all been tried and failed.
The Afghan man speaks only Farsi, but he wasn’t worried about representing himself in U.S. immigration court. He believed the details of his asylum claim spoke for themselves.
Mohammad was a university professor, teaching human rights courses in Afghanistan before he fled for the United States. Mohammad is also Hazara, an ethnic minority long persecuted in his country, and he said he was receiving death threats under the Taliban, who reimposed their harsh interpretation of Sunni Islam after taking power in 2021.
He crossed the Texas border in April 2022, surrendered to Border Patrol agents and was detained. A year later, a hearing was held via video conference. His words were translated by a court interpreter in another location, and he said he struggled to express himself — including fear for his life since he was injured in a 2016 suicide bombing.
At the conclusion of the nearly three-hour hearing, the judge denied him asylum. Mohammad said he was later shocked to learn that he had waived his right to appeal the decision.
“I feel alone and that the law wasn’t applied,” said Mohammad, who spoke to The Associated Press on condition that only his first name be used, over fears for the safety of his wife and children, who are still in Afghanistan.
. . . .
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Former immigration judge Jeffrey Chase, who reviewed the transcript, said he was surprised John-Baptiste waived Mohammad’s right to appeal and that the Board of Immigration Appeals upheld that decision. Case law supports granting protection for people who belong to a group long persecuted in their homelands even if an individual cannot prove specific threats, said Chase, an adviser to the appeals board.
But Andrew Arthur, another former immigration judge, said John-Baptiste ruled properly.
“The respondent knew what he was filing, understood all of the questions that were asked of him at the hearing, understood the decision, and freely waived his right to appeal,” Arthur, a fellow at the Center for Immigration Studies, which advocates for immigration restrictions, said via email.
Chase said the hearing appeared rushed, and he believes the case backlog played a role.
“Immigration judges hear death-penalty cases in traffic-court conditions,” said Chase, quoting a colleague. “This is a perfect example.”
Overall, the 600 immigration judges nationwide denied 63% of asylum cases last year, according to Syracuse University’s Transactional Records Access Clearinghouse. Individual rates vary wildly, from a Houston judge who denied all 105 asylum requests to a San Francisco one denying only 1% of 108 cases.
John-Baptiste, a career prosecutor appointed during the Trump administration’s final months, denied 72% of his 114 cases.
. . . .
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Read Julie’s complete article at the link.
Hazaras are an historically persecuted group in Afghanistan whose already perilous situation has demonstrably worsened under the Taliban. See, e.g., https://www.ushmm.org/genocide-prevention/blog/urgent-action-needed-hazaras-in-afghanistan-under-attack. This case should have been a “slam dunk grant” under a proper application of precedents like Cardoza and Mogharrabi! Additionally, Hazara claims should be routinely grantable under the “pattern or practice of persecution” regulations that EOIR judges are supposed to apply (but seldom do).
No wonder this system builds incredible unnecessary backlogs when it botches the easy grants, wastes time on specious, disingenuous reasons for denial, and allows questionably-qualified judges to run roughshod over due process, the rule of law, and binding precedents.
Here’s additional commentary from “Sir Jeffrey:”
Thankfully, the amazing Steve Schulman at Akin Gump took on Mohamed’s case after his pro se hearing, and Human Rights First provided additional support.
(The Round Table was prepared to file an amicus brief on this one at the Fifth Circuit, but an agreement was reached to reopen the case at the IJ level before briefing was due.)
That the Government agreed to reopen this case basically “says it all” about the absurd result in the original hearing and the bogus “waiver” of appeal.
“Petitioner Srecko Pesikan argues that the Board of Immigration Appeals (“BIA”) erred in concluding that his 2018 Pennsylvania conviction for driving under the influence (“DUI”) of marijuana constituted an offense involving a “controlled substance,” as defined in the federal Controlled Substances Act (“CSA”), thereby rendering him removable under the Immigration and Nationality Act of 1952, 8 U.S.C. § 1227(a) (“INA”). We agree and will grant his petition for review. … In sum, because the identity of the specific controlled substance is not an element of the Pennsylvania DUI statute, the state statute of conviction is indivisible and cannot serve as the basis for Pesikan’s removal under the INA. … For the foregoing reasons, we will grant Pesikan’s Petition for Review in case number 21-1262 and will reverse the order for removal.”
These are important cases with high stakes! They deserve expert analysis from expert judges.
Eliminating unnecessary Circuit reversals and remands like this would also help address the backlog-building, due-process-denying phenomenon of “Aimless Docket Reshuffling” at EOIR. Avoidable mistakes at the “retail level” are systemically costly to our justice system in more ways than one!
And, remember, that for every EOIR mistake that gets “caught” by the Article IIIs, dozens of these injustices probably go uncorrected! Circuit review is a luxury that isn’t available to most individuals who lose at the BIA level. Even here, Mr. Pesikan would have had no chance at the Circuit except for court-appointed pro bono counsel Stephen A. Fogdall and his team at Dillworth & Paxon, LLP, another luxury unavailable to litigants at the EOIR level.
Moreover, even when Circuit review does take place, the inappropriately deferential standards established by Congress allow (or even require) some Circuit panels to merely sweep glaring injustices under the rug without grappling with the overall constitutional implications of this shoddy, due–process-denying system. Why on earth would “deference” be given or review restricted over the “gang that can’t shoot straight” at EOIR?”
Would you give “deference” to these guys? Theatrical poster from Wikipedia
