"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.
Dehydration is a nasty way to die! Théodore Géricault Creative Commons Attribution-Share Alike 2.0 France-003341B – Raft of the Medusa (16237617902).jpg Copy [[File:France-003341B – Raft of the Medusa (16237617902).jpg|France-003341B_-_Raft_of_the_Medusa_ PHOTO: Dennis Jarvis, Halifax Nova ScotiaJasmine Garsd NPR Criminal Justice Reporter PHOTO: Linkedin
In some parts of this new route they are exploring, Arellano and Cordero are already leaving bottles of fresh water in bushy areas, where people may be taking refuge from the sun.
They check to see if anyone drank from them.
Arellano picks up the bottle. “Slashed”, she sighs.
This is where Border Kindness runs into one of the biggest hurdles in drawing a new map: not climate, not geography, but people. Occasionally, when they leave these bottles of water, they return to find them destroyed.
They don’t know who is doing it – but there’s plenty of people out here who disapprove of the work they do.
“If they recognize what the water is for… they’ll slash it. In hopes people die I guess?” Arellano says.
As they move along, Arellano and Cordero find about a dozen destroyed water bottles at various locations. All mangled. They replace them.
Before calling it a day, they drive up to one last spot where a migrant was found dead from dehydration just a few months ago.
In the nearby bushes, there’s the usual: shoes, socks, also, a small child’s pink winter glove, and a tiny winter jacket. It’s baby blue and filled with caked mud. Arellano inspects its tags. “4-T”, she reads out loud. It belonged to a 4-year-old child.
They walk over to check on the water bottle they left here a few days ago, to see if anyone was able to drink.
But it, too, has been slashed open.
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Read and listen to the complete report at the link.
A sad illustration of one of my sayings: “We can diminish ourselves as a nation, but it won’t stop human migration!”
1. Plaintiff CLAUDIA ESCOTO, while working as a Staff Assistant to Assistant Chief Immigration Judge Scott Laurent was subjected to egregious and continual sexual harassment, including Judge Laurent describing in graphic detail other judges and employees he wanted to have sex with, or had sex with, in what positions he wished to have sex and in what manner. Judge Scott Laurent discussed in lurid detail the physical attributes of attorneys who came before him to represent litigants and the government and further discussed attraction to and/or sexual relations with other judges. Judge Laurent regularly subjected Plaintiff to rambling diatribes regarding the breasts, attractiveness and whether he deemed the female attorneys and judges “fuckable.” Judge Laurent also regularly discussed female colleagues and employees in a degrading and sexual manner, discussing in graphic detail who he wanted to have sex with, the physical attributes of female employees and judges. Judge Laurent engaged in this conduct even when in judge’s robes when on the bench. Judge Laurent subjected Plaintiff to graphic description of sexual relations he was having with his wife and other women, including during what was supposed to be work hours.
2. Judge Laurent touched Plaintiff without her consent in a sexual manner, repeatedly placing his hand on Plaintiff’s upper leg when she traveled in a car with him, and ensuring his right arm touched her breasts. This was unwelcome and deeply disturbing to Plaintiff.
3. Judge Laurent further demeaned Plaintiff’s sexual orientation, claiming he could turn her straight (referring to his supposed sexual prowess if Plaintiff had sexual relations with him), referred to Plaintiff’s wife’s breasts and attractiveness and demanded that Plaintiff come “sit on Daddy’s lap,” referring to himself as “Daddy.” He would also proclaim “I can turn you straight, Baby!”
4. Judge Laurent’s conduct caused Plaintiff severe emotional impacts, including causing fainting spells, among other severe reactions. Plaintiff requested a medical leave, during which time
Judge Laurent continued to contact Plaintiff to pressure her to work. He denied Plaintiff’s extension of leave, improperly placing her on AWOL status, even though Plaintiff had leave time. Plaintiff requested a reasonable accommodation of reassignment to a different supervisor where she would not be subjected to this egregious sexual harassment. This request was denied by Defendant. Defendant then acted on Judge Laurent’s recommendation to fire Plaintiff shortly after receiving Plaintiff’s complaints of sexual harassment, discrimination, and retaliation, having taken no actions to address Plaintiff’s complaints, other than to fire her.
5. Judge Laurent’s actions show no respect for the sacred office he holds, demean the entire justice system, and turn what should be a model employment environment into a cesspool, where Plaintiff was made to endure an onslaught of sexual comments and sexual advances, ultimately being fired when she had the bravery to come forward. Plaintiff CLAUDIA ESCOTO, as well as the justice system itself, deserved so much better. Defendant must be held to account.
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These are only unproven allegations in a court complaint at this point! But, if any of this is true, it would confirm that there are some deep “cultural” issues at EOIR that leadership has not dealt with.
“Expedited/dedicated dockets” and other “haste make waste” nonsense that misses the mark at EOIR aren’t going to solve systemic issues affecting due process and fundamental fairness for the millions whose lives and futures are pending in our broken and dysfunctional Immigration Courts!
“Fear & Loathing” Inept, disingenuous performances on asylum by the White House, DHS, & DOJ have left the Biden Administration grasping at straws and spreading vile nativist myths about asylum seekers at the border. PHOTO: Creative Commons
Deterrence and increased enforcement have proven to be failed approaches that do not change the multiple factors that force so many people to flee their countries and only result in pushing people into more dangerous routes that allow criminal organizations to thrive, resulting in the smuggling, trafficking, extortion, and kidnapping of migrants and others.
After more than two years of bumbling around, in the process squandering their access to the ideas and problem-solving skills of an un-precedented “brain trust” of immigration experts, the Biden Administration appears to be in “full panic mode” as the inevitable lifting of the Title 42 charade slowly approaches. Notably, a Federal Court ordered the Administration to make good on its (already delayed) promise to end Title 42 back in November 2022. But, the Supremes unethically blocked that order — granting a stay that NO ACTUAL PARTY to the litigation requested, in a simply mind-boggling exercise of politicized, unconstitutional interference with the Executive.
Instead of using the time to 1) work with NGOs, 2) hire and train more expert asylum officers, 3) replace the BIA and anti-asylum Immigration Judges with qualified human rights/due process experts, and 4) drastically ramp up the refugee admission system outside the U.S. (not substituting an inadequate and “jury rigged” numerically limited “parole” program for legal refugee and asylum admissions), the Administration frittered away the opportunity with obstructionist/restrictionist nonsense. Now, they are “running scared” from desperate refugees merely seeking to exercise their legal rights that have been illegally and immorally denied to them for years — by successive Administrations.
Pooja Asnani reports from Sanctuary For Families NY:
Hi all,
I wanted to share a recent asylum grant won by my colleagues, Deirdre Stradone, Amalia Chiapperino, and Kelly Becker-Smith, before IJ McKee at the NYC immigration court.
Client is Honduran Garifuna woman who survived DV and gang violence, and, importantly for the grant of asylum, forced sterilization. Below is a quick summary of the case, and I’m highlighting this asylum grant because our team, specifically Deirdre, has been seeing more and more cases of forced sterilization among Central American women.
Respondent is a forty-five-year-old Honduran Garifuna woman who has been the victim of forced sterilization, severe verbal, physical, and sexual violence, robbery and death threats by gang members, and intentional deprivation of law enforcement assistance and medical attention due to her race and gender. Overwhelming evidence affirms the horrific practice of forced sterilization against Garifuna women, as well as the high levels of domestic and gang violence in Honduras that take place with impunity. The evidence shows that government authorities largely fail to respond to complaints of abuse, or when they do respond, fail to do so effectively.
Deirdre has been collaborating with the Mt. Sinai Human Rights program to study the forced sterilization of Central American women, a topic she had encountered over and over again in her asylum cases, with the researchers agreeing that this particular violation of human rights is likely more common than is being research and reported. Deirdre has found several reports and studies conducted regarding indigenous, mainly Garifuna, women living with HIV who have been victims of this practice. As you all probably know, and stemming from the response to China’s one-child policy, forced sterilization is defined in the Immigration and Nationality Act (“INA”) as “per se persecution on account of political opinion.”
I wanted to share this because we’re realizing that that it may be a more wide-spread practice than we initially thought, and often times, clients don’t even realized they have been sterilized when they come to us. We have been asking specific questions about this in our intakes, and often have been sending our clients to get a medical evaluation to determine whether they have been sterilized. Unfortunately, we have had a several clients discover in the course of our representation that they had been sterilized without their consent, and we believe that many other women may have experienced this without realizing.
While we have worked on several cases with similar facts, but interestingly, this is the first asylum case we have had were the IJ (McKee) granted specifically based on the forced sterilization claim (political opinion), and not on the ARCG DV claim.
Our team at Sanctuary is working to put together a training to help issue-spot, discuss common fact patterns, and how to prepare and brief these cases; stay tuned for more details.
CC’ing the team who worked on this case, including Deirdre, if folks have questions.
Thanks,
Pooja
Deirdre Stradone Attorney Sanctuary for Families NYKelly Becker-Smith Attorney Sanctuary for Families NYAmalia Chiapperino Sanctuary for Families NY
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Dan Kowalski reports from LexisNexis Immigration Community:
Christina Brown writes: “I wanted to share the attached decision in case it is helpful to others. IJ Burgie granted the asylum claim of an indigenous Guatemalan applicant finding past persecution based on severe economic deprivation (DHS failed to rebut). She also granted based on a pattern and practice of severe economic persecution of indigenous Guatemalans.”
Many congrats and much appreciation to all involved!
Even as the Biden Administration and GOP nativists push their “big myth” that most seeking asylum at the Southern Border are “mere economic migrants” not “true refugees,” these results from those fortunate enough to have expert lawyers, fair Immigration Judges, and reasonable time to prepare, document, and present continue to show the intellectual and moral bankruptcy of the racially-biased restrictionist claims. Indeed, to get to the “any reason to deny” nonsense, which also is often mis-employed by the BIA, one has to intentionally ignore or misconstrue both the real country conditions in the Northern Triangle and the inclusive “at least one central reason” mixed motive language of the INA.
These are NOT “one offs!”No, they are actually recurring situations! A properly functioning, fair, expert BIA, committed to a correct and generous interpretation of asylum laws, would have incorporated these and other recurring “grant” situations into a series of binding precedents. These, in turn, would allow lawyers, Asylum Officers, IJs, and ACCs to recognize and prioritize these cases for “fast track grants.”
That, in turn, would enable many asylum applicants to be timely admitted in legal asylum status, work authorized, and on the way to green cards and naturalization. Significantly, it would also avoid the largely self-created, self-aggravated, ever-growing EOIR backlogs that seem to “drive” the “haste makes waste,” sloppy, “any reason to deny” decision-making that still exists throughout our broken and biased asylum system.
The REAL problem here its that meritorious cases like or similar to these that require expert recognition, proper preparation and documentation, and officials committed to “protection not rejection,” are likely to be summarily rejected and wrongfully pushed back across the border by the “Biden/Miller Lite” procedures and toxic official attitudes toward asylum now being promoted by both the Administration and the GOP.
It’s disturbingly clear that the needed positive changes in the immigration legal system are NOT “coming from the top” in the Biden Administration. Consequently, in addition to recruiting, training, and mentoring ever more members of the NDPA (including non-attorney accredited representatives), to hold the system accountable, it is ESSENTIAL that we get more NDPA “practical experts” on the Immigration Bench to spread and force due process, fundamental fairness, and best interpretations/practices on a resistant system from the “retail level” — the “grass roots” if you will.
That requires that NDPA experts with the qualifications apply for Immigration Judge vacancies en masse! You can’t be selected if you don’t apply! And, without better Federal Judges at all levels not only will injustice continue to prevail for immigrants, but our entire democracy will be imperiled! Better judges for a better America!
Yes, as I have acknowledged in prior posts, EOIR can be a tough place to work. But, human lives and the future of our democracy depend on our changing the system, from “the bottom up” if that’s the only way. This system is too important, with too much at stake, to be left to the whims and false agendas of tone-deaf politicos and inept, “go along to get along” bureaucrats!
Injustice Public Realm Dems spend lots of time whining about the destruction of the Federal Judiciary by GOP right-wing extremists. However, after two years in charge, they have done little to bring due process, fundamental fairness, and judicial expertise to America’s worst courts — the Immigration Courts — which they totally control!
The 5th Circuit didn’t mince any words in its latest (inexplicably) unpublished, 24-page takedown of EOIR’s ridiculous “judicial” failure with lives at stake!
Based on all of the evidence as a whole, and in light of the applicable caselaw, Reyes-Hoyes has made a compelling case of persecution. Nevertheless, we find a remand is necessary because the BIA did not make a determination as to Reyes-Hoyes’s credibility. The BIA did not mention credibility in its decision or express any doubts about the truth of Reyes- Hoyes’s testimony. The IJ did express some doubts about Reyes-Hoyes’s credibility, although he did not explicitly find her uncredible and ultimately stated he was not denying relief “based on a lack of sufficiency of proof.” However, the BIA did not adopt the IJ’s decision and thus did not incorporate any of the doubts the IJ had. “Generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.” I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002). If Reyes-Hoyes is credible, she has shown persecution, but the credibility determination must be made by the factfinder, not by this court on appeal. See 8 U.S.C. § 1158(b)(1)(B)(iii); Avelar-Olivia v. Barr, 954 F.3d 757, 767 (5th Cir. 2020). Accordingly, the decision of the BIA is vacated in part, and we remand to the BIA for a determination on credibility.
. . . .
In sum, we conclude that, if Reyes-Hoyes is credible, the record compels the conclusion that Reyes-Hoyes suffered harm rising to the level of past persecution, but we remand for the BIA to consider her credibility in the first instance. We also conclude that the record compels the conclusion that safe internal relocation to parts of Guatemala—Mesata and Raul—was not possible. Additionally, we hold that the BIA procedurally erred in the remainder of its analysis concerning whether internal location was reasonable and whether Reyes-Hoyes had shown state action by not meaningfully considering the relevant substantial evidence.
. . . .
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Here is my immediate reaction when Dan Kowalski at LexisNexis sent me the decison:
Wow! This is an EOIR/OIL error fest — replete with misrepresentations and mischaracterizations! Totally sloppy work! Why won’t they publish this? It’s a perfect example of how Garland has failed to get the job done!
And, here’s the reaction from my friend and Round Table Colleague “Sir Jeffrey Eagle Eyes” Chase:
24 pages; very detailed analysis of recurring asylum issues. Should certainly have been published.
BTW, please note footnote 9, an example of the ongoing problem with the government’s online regs continuing to list the enjoined “death to asylum” regs that the previous administration tried to push through. The Fifth Circuit continues to believe that the internal relocation reg was amended effective January 19, 2021. Have cases been decided based on this erroneous belief?
Lest you doubt the “complete FUBARness” of EOIR, check these out:
Worst of all the small and mid-sized agencies ranked;
While the “curve” for “subagencies” has gone up since 2007, EOIR’s score has cratered, plunging dramatically during the Trump years;
EOIR ranked at or near the bottom on key metrics, including, significantly, “leadership style” (some of the “credit” for this abysmal score should go to DOJ, which has failed to provide dynamic, due-process-oriented leadership over the last six years);
GAO study just cited EOIR for a number of management deficiencies including “blowing off” “our [GAO’s] 2017 recommendation to develop a strategic workforce plan to address current and future staffing needs, EOIR hasn’t done so—even though it had a significant and growing backlog of 1.8 million pending cases at the start of FY 2023, more than triple the number that it had in FY 2017.”
The NAIJ continues to raise technology and health and safety defects with EOIR “management;”
Notably, during this period of abject failure, EOIR has found time and resources to waste (and potential “goodwill” to squander) on unneeded nonsense like “IJ Dashboards,” “production quotas,” “expedited dockets,” more layers of bloated headquarters bureaucracy, and, perhaps the biggest boondoggle of all, a totally absurd and duplicative “Office of Policy” for an agency that has demonstrated a disturbing inability to carry out its “core function:” Providing Due Process for all through fair, timely, expert, correct adjudications!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up” — As Dems founder in their commitment to restore justice, could new Immigration Judges from the NDPA — unswervingly committed to due process, fundamental fairness, and best practices — get this poor little fella back on his feet and improve the culture and atmosphere at the “retail level” of EOIR, even in the face of indifference and incompetence from those in charge? Lives and futures — perhaps the future of our democracy — are at stake!
What we really need is a “lean, not mean, due process machine” @ EOIR. Why can’t the Dems deliver? That’s the age-old question among human rights experts!
Human Rights First Welcomes Resettlement, Condemns Bars to Asylum Seekers
WASHINGTON – Human Rights First welcomes today’s announcement of the Biden administration’s plans to expand refugee resettlement and family reunification parole in the Americas while reiterating the organization’s call for the administration to abandon its planned asylum ban and the conduct of fast-track credible fear interviews in Border Patrol custody.
“The Biden administration is rightly expanding refugee resettlement from the Americas, an overdue step towards addressing a long-standing gap for people in need of international protection,” said Senior Director of Refugee Protection Eleanor Acer. “This initiative should swiftly bring refugees to safety and not be used to reduce the resettlement of refugees from other regions. The Biden administration should focus on measures like increasing refugee resettlement and regular pathways and abandon its plan to impose an asylum ban that would be a legal, moral, and political mistake.”
In today’s announcement, the Biden administration confirmed its plans to implement its proposed ban on asylum, which would violate U.S. and international refugee law and has sparked widespread opposition from faith leaders, civil rights organizations, unions, and many Members of Congress. People seeking asylum at United States borders will be subjected to fast-track credible fear interviews while in Border Patrol custody and barred under the asylum ban, fueling wrongful deportations to persecution and torture.
“The Biden administration rightly ended and should not resurrect Trump-era policies that conduct credible fear interviews in Border Patrol custody where access to legal counsel is restricted,” Acer said. “This due process disaster, along with the imposition of the planned asylum ban, will be a sham process for deporting refugees who qualify for asylum. Instead of implementing policies that punish people seeking asylum, the United States should lead in upholding refugee protections and human rights.”
Human Rights First and other groups have long urged the U.S. government to step up refugee resettlement from the Americas and offer safe pathways for migration. We recommend the Biden administration focus on transformational steps like increasing refugee resettlement and regular pathways and maximizing asylum capacity at ports of entry rather than pursuing its misguided plan to impose a new bar on asylum.
Today’s announcements are part of the Biden administration’s plans to address regional migration and initiate punitive policies as the use of the Title 42 public health order ends on May 11. Human Rights First has repeatedly documented human rights abuses inflicted by the Title 42 policy, including over 13,000 attacks against migrants and asylum seekers blocked in or expelled to Mexico under Title 42 during the Biden administration. The organization has also repeatedlydetailed the harms and violations of law that would be caused by the Biden administration’s proposed ban on asylum.
To me, the DHS/DOS statement (referenced by HRF) sounds like folks who expect to fail, want to “tamp down” expectations, and intend to blame the victims (asylum seekers and their advocates) and Congress for their (likely) failure.
Almost everybody agrees that reforms in our immigration system are overdue. But, there is no agreement whatsoever in Congress on what those reforms should be, as shown by the absolutely insanely “bonkers” proposal from the House GOP which seeks to make everything infinitely worse!
So, we’re not going to get the needed expansions and simplification of our legal immigration system, including more generous treatment of refugees and asylum seekers, in the foreseeable future. That’s not a surprise! After two plus years in office, the Biden Administration should have foreseen the obvious and come up with ways to make the current law work.
As almost any expert will tell you, our existing legal asylum system can be made to work in a fair, timely, and reasonable manner at the borders. But, that’s not going to happen with the current personal, poor leadership, bad attitudes, lousy precedents, and a badly failed Immigration Court system.
A fair, functional, properly run asylum system, in conjunction with a robust realistic overseas refugee program, will result in more individuals being admitted into the U.S. as legal immigrants through the refugee and asylum processes. That’s how they are supposed to work (but generally have not) as key components of our legal immigration system.
It’s also a fulfillment of our important international obligations that we intentionally took on after our questionable performance on Jews fleeing Europe just prior to, and even during, WWII. While we can absorb, even need, more legal immigrants, Administrations don’t want to admit and deal with the obvious. Forced refugee migrations aren’t going to disappear any time in the foreseeable future, much as politicos of both parties might want them to!
Yes, these are legacies of the Trump Administration, and, to a lesser extent, the Obama Administration. But, one of the reasons why the Biden Administration is in office is to make things work, not just to whine and wring their hands.
Sure, the Trump Administration undermined the rule of law (and, I might add, largely got away with it). But, that’s no excuse for Biden and Harris not to have listened to experts (like, for example, Eleanor Acer), replaced personnel at DHS and DOJ with “practical experts” who can get the job done, and established at least a working operational framework for a successful, orderly, refugee and asylum admission system. Over-relying on coercive and inhumane detention, denial-oriented decision-making, bogus bars to asylum, criminal prosecutions, threats, and a dysfunctional Immigration Court system are NOT that framework.
Of course the Administration’s proposals to increase refugee admissions, reprogram resources, and develop a better resettlement program for refugees and asylees in the U.S. are good ideas. But, they are basically “no brainers” that HRF and other experts urged even before “day one” of this Administration. They should be in place and operating by now! We’ll see how much due process and fairness this Administration can actually deliver, or whether their proposed solutions devolve into yet another “uber-enforcement fueled” fiasco with the most vulnerable humans as the victims!
Excited to announce that I will be part of the Hispanic National Bar Association (HNBA) National Task Force on Hispanic Law Faculty and Deans! I am honored to be included in a group of Latine law professor giants, whom I have long admired. I look forward to continuing working on a personal passion of mine, which is diversifying the legal profession and legal academia. ¡Adelante!
The Hispanic National Bar Association Launches New Task Force on
Law Faculty and Deans
Washington, DC – The Hispanic National Bar Association (HNBA) announces the launch of the first-of-its-kind National Task Force on Hispanic Law Faculty and Deans, aimed at addressing the alarming lack of Hispanic/Latino representation among U.S. law school professors and administrators (including deans), as well as the shortage of professional development resources specifically for Hispanic/Latino professors, deans, and other administrators already in the legal academy.
According to the most recent ABA Profile of the Legal Profession, only 5.8% of lawyers in the U.S. are Hispanic/Latino, even though we constitute over 19% of the general population. The shortage of Hispanic/Latino lawyers across the nation mirrors the paucity of Hispanics in legal academia. Only 9 of the almost 200 deans of ABA-accredited law schools in the 50 states and the District of Columbia are Hispanic/Latino. Estimates have the percentage of full-time Hispanic/Latino law professors at only 5%.
Hispanic/Latino law professors and law school deans are leaders of the profession and play seminal roles in educating future generations of lawyers and law-related professionals. Legal educators are visible role models and mentors to young people aspiring to careers in law. In addition, Hispanic/Latino legal academics – like other legal academics – frequently are tapped for senior government appointments, judgeships, and other key roles in our democracy. The urgency of this initiative is heightened further by the U.S. Supreme Court’s looming affirmative action decision, which threatens to make the shortage of Hispanic/Latino law students, lawyers, and legal academics even worse.
HNBA President Mariana Bravo has appointed as Co-Chairs of the Task Force Raquel M. Matas and Anthony E. Varona. Raquel Matas is the former Associate Dean for Administration at the University of Miami School of Law and has served as HNBA’s National Law School Liaison. Anthony E. Varona is Dean and Professor at Seattle University School of Law, the first law school dean of Hispanic/Latino heritage of any law school in the Pacific Northwest of the United States. Varona was the first Hispanic/Latino dean at University of Miami School of Law, where he was appointed dean emeritus after the conclusion of his deanship.
President Bravo said, “An increase in the number of Hispanic/Latino law professors and law school deans will translate into an increase in law school enrollment by Hispanic and Latino/a students inspired by educators who hail from their same communities, share their backgrounds and struggles, and in many cases, share a bilingual heritage. The work of this Task Force is long overdue, and I am delighted that former Associate Dean Matas and Dean Varona, with many decades of distinguished nationally recognized service in legal education between them, will lead us in this important work.”
The Task Force will oversee the development of annual summer nationwide online workshops for prospective and existing Hispanic/Latino law faculty and law school deanship aspirants, through programs such as the Michael Olivas Summer Writing Institute and the GO LILA summer workshops, collaboration with other established workshops, and by organizing new initiatives to increase Hispanic and Latino/a diversity in the legal academy. The Task Force will plan in-person “how to become a law professor” workshops at the annual HNBA conferences, assist with matching law faculty and law dean aspirants with suitable mentors, support the professional development of and networking opportunities for currently appointed Hispanic/Latino law faculty, promote better data tracking by national accreditation and membership associations, and otherwise promote more Hispanic and Latino/a representation in the legal professoriate and decanal ranks.
In addition to Matas and Varona, the HNBA Task Force on Law Faculty and Deans will include as members nationally renowned legal education leaders, known for their dedication to diversifying the legal profession and the academy, including:
Dolores S. Atencio, Esq., Visiting Scholar, U. of Denver Latinx Center|Sturm College of Law
Steven Bender, Prof. & Assoc. Dean for Planning & Strategic Initiatives, Seattle U. School of Law
Kevin R. Johnson, Dean and Mabie-Apallas Prof. of Public Interest Law & Professor of Chicana/o Studies, UC Davis School of Law
José Roberto (Beto) Juárez, Jr., Dean & Prof., Nova Southeastern U. Broad College of Law
Jenny Martinez, Lang Prof. of Law and Dean, Stanford Law School
Margaret Montoya, Prof. Emerita of Law (and Medicine), U. of New Mexico
Jennifer Rosato Perea, Dean & Prof. of Law, DePaul U. College of Law
Hon. Jenny Rivera, Associate Judge, New York Court of Appeals
Ediberto Román, Prof. of Law, Florida International U. College of Law
Krista Contino Saumby, Esq., Assoc. Director of Career Dev., Elon University School of Law
Paulina Vera, Professorial Lecturer in Law, George Washington U. Law School
This Task Force shall operate as a Presidential Special Committee.
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The Hispanic National Bar Association is an incorporated, not-for-profit, national membership association that represents the interests of over 78,000+ Hispanic attorneys, judges, law professors, legal assistants, law students, and legal professionals in the United States and its territories. Since 1972, the HNBA has acted as a force for positive change within the legal profession by creating opportunities for Hispanic lawyers and by helping generations of lawyers to succeed.
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Congrats to Paulina, Dean Kevin Johnson, and all the other outstanding scholar/leaders named to this group. Another place where more diversity is long overdue is the Federal Bench. In particular, despite the disparate impact of Immigration Court decisions on Hispanic-American communities, they are underrepresented on the bench at EOIR.
As the awesome talent represented by this Task Force shows, it isn’t for lack of exceptionally well-qualified judicial candidates available in the private sector. It’s a recruiting and cultural problem at DOJ, along with severe credibility problems stemming from perceptions of overall hostility at EOIR to asylum seekers, other migrants, and their lawyers, often directed at Hispanics and other individuals of color. The “culture” at EOIR really can only be changed by getting on the “inside” — that means getting on the bench or into the EOIR supervisory structure.
On a positive note, one of my fellow panelists on that occasion, Hon. Claudia Cubas, is now an Immigration Judge at the Hyattsville (MD) Immigration Court!
I look forward to Paulina and other NDPA superstars 🌟 like her joining Judge Cubas on the bench in the near future. Positive change requires working “at all levels” to pump due process, fundamental fairness, and decisional excellence into a broken justice system.
Under AG Garland, at least some semblance of a “merit-based” selection system, one that honors immigration representation and human rights experience, has taken hold at EOIR. Therefore, Immigration Judge positions are the ideal “entry level” for those seeking careers in the Federal Judiciary.
Also, the “hands on” experience with making difficult decisions at the critical “retail level” of American justice will be an asset in any career path. Every correct decision at EOIR is potentially life-changing and life-saving! There aren’t many other areas where you can say that! These decisions are far, far too important to individuals and to our nation’s future to be left to the “amateur night at the Bijou” aura that unfortunately (tragically) has permeated EOIR in recent years!
Very proud to say that Paulina is a “distinguished alum” of the “Legacy” Arlington Immigration Court Internship Program and a “charter member” of the NDPA! 😎⚖️🗽
AILA is pleased to welcome this blog post from long-time AILA member Careen Shannon, Senior Counsel (formerly Partner) at Fragomen, Del Rey, Bernsen & Loewy, LLP, and the Executive Producer of an important new documentary, “Las Abogadas: Attorneys on the Front Lines of the Migrant Crisis.” AILA members in town for the Spring Conference have a chance to see “Las Abogadas” at the Washington, DC International Film Festival on Wednesday, April 26, at 6:00 p.m., with a second show on Friday, April 28, at 8:30 p.m.
When my friend Rebecca Eichler told me that a documentary filmmaker was making a movie about her experience providing legal advice to members of a Central American migrant caravan as it made its way north through Mexico in 2018, I said, “That’s nice.” Later, when film production stalled due to the COVID-19 pandemic, she sent me a link to a trailer and encouraged me to take a look, and I promised to do so. But I was busy managing my remote work for the Fragomen law firm where I was then a partner, and I put all thoughts of the film aside.
Then one day, I watched the trailer, and I was hooked. Here was a story that needed to be told. It wasn’t just about Rebecca, but about tenacious lawyers – mostly women – who were dedicating their lives to defending the rights of asylum seekers, reuniting migrant families torn apart by the Trump administration’s cruel family separation policy, and fighting to uphold the rule of law at a time when the few existing safeguards for migrants seeking refuge from harm were being systematically dismantled.
I reached out to the film’s Director, Victoria Bruce, who I later learned only reluctantly took my call at Rebecca’s urging, since at that point she had run out of steam – and money – and was not sure she had it in her to complete the film. But we had a great conversation, we fed off of each other’s enthusiasm for the subject matter, and by the end of our talk she had invited me to sign on as the film’s Executive Producer.
Two years into the pandemic, I decided to step down as a partner at Fragomen and dedicate myself to ensuring that this important film got made. Fast forward to today, and Las Abogadas: Attorneys on the Front Lines of the Migrant Crisis is making the rounds of film festivals, winning awards, and garnering critical acclaim. Las Abogadas (which means “the women lawyers” in Spanish) follows a group of women immigration attorneys over a multi-year odyssey as the U.S. government under Trump upends every protection for those fleeing from persecution, violence and war. The film’s narrative continues into the first two years of the Biden administration, where great hope gives way to a despair my fellow AILA members undoubtedly share, that nothing fundamental had changed in U.S. immigration policy.
. . . .
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Read the complete article at the link.
“Nothing fundamentally has changed.” Rather than listening to, recruiting, partnering with, and following the advice of those on the “front lines” of defending individual rights, freedoms, and upholding American democracy, the Biden Administration disastrously turned immigration, human rights, and racial justice policies over to a bunch of “wonks” disconnected from the preventable human tragedies and mocking of the rule of law represented by Trump’s xenophobic, White Nationalist agenda.
Today, President Biden announced his candidacy for re-election in 2024. Part of his slogan is “protecting personal freedoms” from the GOP right-wing authoritarian, police state — bedrooms, bathrooms, classrooms, voting booths, more guns, MAGA-maniacs plan to invade and regulate every aspect of your life. But Biden’s miserable performance on immigrants’ rights and his Administration’s tone-deaf “dissing” of those like the heroes of “Las Abogadas,” suggests he will need more than a slogan to energize a critical, too often ignored,“core component” of the Dem base.
He could start by watching “Las Abogadas” along with VP Harris (who “took on” the “immigration portfolio,” and has been MIA since), his politicos, and his campaign staff and heeding the message. Social justice advocates are understandably skeptical about Biden’s promises. He needs actions that advance due process, the rule of law, and humane, robust, orderly processing of refugees and asylum seekers!
As the Trump debacle demonstrated, when immigrants’ rights disappear, all other individual and personal rights in America are in the far-right’s sights! It doesn’t take much imagination (except, perhaps, for some so-called “centrist” Dems) to see how the onslaught of anti-immigrant myths, rhetoric, and legislation by the GOP right has quickly shifted to hate bills targeting gays, transgender, women, Black History, teachers, voters, election officials, rational gun control, heck, even doctors, nurses, and established medical science!
Careen Shannon Senior Counsel (formerly Partner) Fragomen, Del Rey, Bernsen & Loewy, LLP Executive Producer “Las Abogadas: Attorneys on the Front Lines of the Migrant Crisis.” Photo: Think Immigration
Many congrats to Careen Shannon and everyone else involved in this tremendous project!
Kirkland & Ellis LLP and NIJC represent class action of people facing prolonged waits for permanent immigration protection following 2021 evacuation from Afghanistan.
Afghan people seeking asylum are suing the U.S. government over delays in processing their asylum applications, nearly two years after they first arrived in the United States as part of a U.S. operation to evacuate allies who faced threats of persecution as the Taliban retook power in Afghanistan.
The plaintiffs in Ahmed v. Department of Homeland Security include people who worked for U.S. agencies in Kabul, women’s rights advocates, a healthcare worker, a teacher, and a journalist. Their temporary immigration status in the United States is set to expire in less than five months. The complaint, filed in the U.S. District Court for the Northern District of California, challenges the failure of the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) to adjudicate the asylum applications filed by seven plaintiffs, and thousands of other Afghan people resettled in the United States, within the 150-day deadline set by Congress.
The plaintiffs ask the court to order DHS and USCIS to decide all overdue Afghan asylum adjudications within 30 days and to abide by the 150-day deadline in the future.
Kirkland & Ellis LLP Litigation Partner Mike Williams, who is working on this pro bono case, said: “This is a case about broken promises and broken trust, but also about the United States breaking its own laws. That is why we are asking the Court to require the United States to keep its promises to these Afghan people seeking asylum. These asylum applicants are among the most vulnerable to come to our country, and they should not be in legal limbo.”
National Immigrant Justice Center Attorney Richard Caldarone, who is co-counsel in the case, said: “USCIS’s systematic failure to decide asylum applications for Afghan people in the timeline set by Congress is inexcusable. For thousands of people — particularly those who had to leave family behind in Afghanistan — USCIS’s delays compound the trauma of Taliban threats and violence. Afghan people were forced to flee their homes and their country because they worked for liberty, equality, and democracy; they deserve better.”
The plaintiffs came to the United States in August 2021 as part of the U.S. government’s Operation Allies Welcome, which allowed Afghan people who passed stringent security and background checks to resettle in the United States and receive two years of humanitarian parole while they applied for more permanent immigration status. Additionally, Congress passed legislation requiring DHS and USCIS to “expeditiously adjudicate” asylum applications within 150 days for Afghan people who were resettled under the operation.
But DHS and USCIS have adjudicated just 11 percent of the roughly 16,000 asylum applications filed by Afghan people evacuated to the United States. Thousands of applications have been pending well past the 150-day adjudication deadline, and many people will see their temporary parole status expire in August 2023. The safety of those who applied for asylum remains in limbo, and their spouses and children trapped in Afghanistan continue to live under constant threats of danger.
This appears to be yet more “low hanging fruit” that the Administration could have handled without litigation to force them to do their job! What a HUGE, INSANE, UNNECESSARY WASTE of time and precious resources for the Biden Administration to choose to be perpetually “at war” with human rights experts and NGOs who have the knowledge and energy to craft and implement better legal approaches to refugees, asylum, adjudications, and restoring “order at the border!”
The Biden Administration’s propensity to adopt really bad approaches to human rights, asylum, and due process, and to “boot even the easy ones,” leaves Casey scratching his head and asking, “Can’t anyone here play this game?” PHOTO: Rudi Reit Creative Commons
Indeed, forcing Afghan evacuees into a ridiculously backlogged asylum adjudication system when they should have been admitted as refugees was a poorly conceived process in the first place! We sure could have used the Ambassadorial-level U.S. Refugee Coordinator originally created by the Refugee Act of 1980 but eventually swallowed by an intransigent State Department bureaucracy that always resented the function and its intended independence!
Hernandez v. Garland, 2d Cir., 04-21-23, Walker, Pooler, Park, Circuit Judges
POOLER, Circuit Judge, dissenting:
2 Standards matter. A standard of review is the essential mechanism that
3 defines an appellate court’s proper role in reviewing the record presented. All
4 appellate courts must adhere to the proper standard of review. The Board of
5 Immigration Appeals (“BIA” or “the Board”) is no exception. Here, the BIA
6 applied a standard that substantially deviated from the clear error standard and
7 improperly made factual findings that contradicted those made by the
8 Immigration Judge (“IJ”). The BIA’s failure to adhere to the proper standard is
9 “the type of error that requires remand.” De La Rosa v. Holder, 598 F.3d 103, 108
10 (2d Cir. 2010). Accordingly, I respectfully dissent.
11 This Court lacks jurisdiction to review purely discretionary decisions by
12 the BIA, see 8 U.S.C. § 1252(a)(2)(B)(ii), but we retain jurisdiction over
13 “constitutional claims or questions of law,” Noble v. Keisler, 505 F.3d 73, 77 (2d
14 Cir. 2007) (quoting § 1252(a)(2)(D)). When reviewing decisions, “[t]he Board will
15 not engage in de novo review of findings of fact determined by an immigration
16 judge. Facts determined by the immigration judge, including findings as to the
17 credibility of testimony, shall be reviewed only to determine whether the
18 findings of the immigration judge are clearly erroneous.” 8 C.F.R. §
1
1 1003.1(d)(3)(i). “[W]hen the BIA engages in factfinding in contravention of 8
2 C.F.R. § 1003.1(d)(3)(iv), it commits an error of law, which [the Court has]
3 jurisdiction to correct.” Padmore v. Holder, 609 F.3d 62, 67 (2d Cir. 2010); see also
4 Rizal v. Gonzales, 442 F.3d 84, 89 (2d Cir. 2006) (explaining that the Court will
5 vacate BIA decisions “that result from flawed reasoning or the application of
6 improper legal standards”). Though the BIA “may review questions of law” and
7 “all other issues” on appeal de novo, see § 1003.1(d)(3)(ii), it is explicitly barred
8 from “engag[ing] in factfinding in the course of deciding cases” aside from
9 taking “administrative notice of facts that are not reasonably subject to dispute,”
10 § 1003.1(d)(3)(iv)(A).
11 Here, the BIA recited the precise legal standard at the beginning of its May
12 2019 decision. Special App’x at 7 (citing § 1003.1(d)(3)). But we do not simply
13 “rely on the Board’s invocation of the clear error standard; rather, when the issue
14 is raised, [the Court’s] task is to determine whether the BIA faithfully employed
15 the clear error standard or engaged in improper de novo review of the IJ’s factual
16 findings.” Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012); see also Chen v.
17 Bureau of Citizenship & Immigr. Servs., 470 F.3d 509, 514 (2d Cir. 2006) (noting that
18 despite “cit[ing] the proper legal standard at the outset of its decision, [the BIA]
2
1 failed to apply this deferential standard of review”). Despite its invocation of the
2 clear error standard, the BIA did not ultimately apply this standard of review to
3 Oscar Hernandez’s case. Merely reciting the standard does not transform the
4 BIA’s impermissible factfinding into a permissible exercise of discretion. Such lip
5 service should not suffice.
6 The majority opinion characterizes the BIA’s impermissible factfinding as a
7 simple “de novo reweighing of the equities based on the facts found by the IJ.”
8 Maj. Op. at 3. That is not the case. Without identifying any of the IJ’s findings as
9 clearly erroneous, the BIA implicitly rejected the IJ’s factual findings and
10 substituted the facts found by the IJ with its own factual findings. If the BIA
11 rejects the IJ’s findings, we expect it to “supply cogent reasons for its rulings,”
12 which the BIA failed to provide. See Lin v. Lynch, 813 F.3d 122, 129 (2d Cir. 2016).
13 The BIA completely disregarded the IJ’s credibility determination when it
14 concluded, contrary to the IJ’s findings, that it “d[id] not find [Hernandez’s]
15 explanation convincing” regarding the circumstances of his 2016 arrest. Special
16 App’x at 10. This divergence in characterization of the 2016 incident was central
17 to the BIA’s decision. In its attempt to parse out the definition of “convincing,”
18 the majority claims the BIA did not overturn the IJ’s factual findings, arguing the
3
1 BIA’s intended use of the word meant it was not “persuaded” by Hernandez’s
2 explanation, not that his testimony was not “truthful.” Maj. Op. at 11. This is an
3 unconvincing distinction. Next, the majority suggests the BIA doubted that
4 Hernandez warranted discretionary relief, not the truthfulness of his testimony.
5 Id. at 12. That clarification, however, does not do much to support the majority’s
6 argument. The BIA’s “de novo” reconsideration of whether Hernandez merited a
7 favorable exercise of discretion was premised on its factual determination that he
8 had “continued to engage in violent behavior” following his first arrest and
9 conviction in 2009. Special App’x at 10. The only evidence cited for this
10 determination was that Hernandez’s “most recent arrest in 2016 . . . included
11 abusive behavior toward his spouse”—a characterization directly at odds with
12 the IJ’s findings. Special App’x at 10.
. . . .
*******************************
You can read the full decision, including Judge Poolers’ full dissent, at the link.
As Judge Pooler points out, manipulation of the standards of review can be used either to improperly substitute judgement on fact-findings (BIA) or too avoid critical review of BIA’s actions (Circuit majority).
Thanks to Dan Kowalski over at LexisNexis for passing this along.
The second Latina to be confirmed to the Northern District of California bench and one of the few immigrant rights attorneys to become a federal judge will be a thoughtful, compassionate jurist who understands firsthand how the law impacts real people, lawyers who know her say.
U.S. District Judge Araceli Martínez-Olguín was confirmed by the U.S. Senate in a 48-48 vote in February, with Vice President Kamala Harris casting the tie-breaking vote in her favor. Her confirmation makes Judge Martínez-Olguín just the second Latina to serve in the Northern District of California, according to the White House’s July announcement of her nomination.
It also makes Judge Martínez-Olguín the rare federal judge who has spent most of her career helping protect immigrants’ rights.
“It’s a slightly different path than we’re used to seeing in folks appointed to the bench, which I think is great,” said attorney Nora Preciado, who worked with Judge Martínez-Olguín at the National Immigration Law Center.
That background gives Judge Martínez-Olguín a unique understanding of the law, particularly when it comes to constitutional issues, which she often dealt with in her immigrant rights work, Preciado added.
But it will also make her more compassionate as a judge, according to those who know her.
“Immigration is a complex field that requires a lot of legal knowledge, but also requires compassion and empathy,” said Brian Amaya, current president of the East Bay La Raza Lawyers Association.
“The ability for a person to stay in this country with their family in order to avoid persecution, famine, war or political instability can be the most important legal decision or conclusion our legal system can make,” Amaya told Law360 Pulse. “It is important that members of our bench are individuals that can apply the law to real-life situations involving real-life people, in ways that are both lawful but full of compassion.”
While at NILC, Judge Martínez-Olguín spearheaded the organization’s work involving the Deferred Action for Childhood Arrivals program, including representing a class of DACA recipients who challenged the U.S. Department of Homeland Security‘s efforts to curtail that program, according to a questionnaire she submitted to the Senate Judiciary Committee.
She contributed to merits and post-argument briefing when that case was consolidated with parallel challenges before the U.S. Supreme Court, she told the Senate.
Judge Martínez-Olguín also served as lead counsel in a Tennessee civil rights class action brought by Latino workers who alleged that their arrests during a worksite immigration raid lacked probable cause and were discriminatory.
Those cases and others showed the judge to be a very calm, steady and methodical litigator, according to Preciado, who worked with her on the Tennessee case.
“Areceli has always been somebody who’s very thoughtful, thorough, methodical in her legal thinking,” Preciado said. “She’s somebody who always wants to really dig deep into issues. She has a very steady approach and temperament to practicing law.”
“As an attorney, Judge Martínez-Olguín was known as a quick learner and could handle any type of legal issue,” echoed Ray Manzo, president of the San Francisco La Raza Lawyers Association.
She also loved to discuss those issues with her teammates, Preciado added.
Amaya added, “Just from talking to her, you could tell she was a brilliant legal mind. It was often my pleasure to just talk law with her. I believe that this was her most impressive quality — her vast understanding of the law and her ability to critically think about it and discuss it in a straightforward manner.”
Prior to her work at NILC, Judge Martínez-Olguín established and ran the Immigrants’ Rights Project at Community Legal Services in East Palo Alto, California, where she conducted policy advocacy, took on impact litigation and counseled local community groups, according to her Senate questionnaire.
“She certainly jumped into a lot of issues,” the organization’s executive director Katrina Logan said. The judge was “always looking for opportunities to use the law to promote and support our clients and the issues that impact them,” Logan said.
She also developed the organization’s emergency plan to deal with potential U.S. Immigration and Customs Enforcement detention of the group’s clients or possible ICE appearances at the organization’s offices, according to Logan.
“She was super-resourceful,” Logan added. “It was really great working with her, and I think she added a lot to our organization.”
Judge Martínez-Olguín also spent time in the ACLU‘s Women’s Rights Project and Immigrants’ Rights Project, litigating human trafficking claims involving the Foreign Sovereign Immunities Act and educating female farmworkers about how to protect their rights when faced with sex discrimination on the job, she told the Judiciary Committee.
She worked on the team that challenged the constitutionality of Arizona’s policy of denying driver’s licenses to DACA recipients under the supremacy and equal protection clauses, according to her Senate questionnaire. And she was part of a group of advocates who provided expertise about crafting the 2008 reauthorization of the Trafficking Victims Protection Act to better protect foreign workers.
Judge Martínez-Olguín has also worked at Legal Aid at Work as a staff attorney in its National Origin, Immigration and Language Rights Program, and in the U.S. Department of Education‘s Office for Civil Rights, where she investigated complaints against school districts and universities, according to her Senate questionnaire.
That background dealing with immigrants’ rights issues means the new jurist is steeped in constitutional issues such as due process, equal protection and freedom of speech, Preciado pointed out.
“It’s a great addition to the court because she’s somebody who has had to grapple very deeply with constitutional issues throughout her career, and I think few lawyers have that kind of experience under their belt,” Preciado said.
But more than her legal knowledge and acumen, what stands out to most of the attorneys who know her is how compassionate and caring she is, especially when it comes to her clients, they said.
“She was somebody who approached the law and the power of the law from a very human perspective, from a very personal connection with folks who are going through the system,” Preciado said.
This skill was especially apparent when the judge was dealing with the clients she and Preciado represented in the Tennessee case, where it was important for her to connect with those clients after they’d been through a traumatic immigration raid, Preciado said.
“She wasn’t showing up as just a brilliant lawyer, but also a human being and somebody who understood what people had gone through and wanted to be there to support in any way possible,” Preciado said. “That’s something that I really admire in her.”
Judge Martínez-Olguín also cares deeply about mentoring young Latina attorneys and working to improve their representation in the legal industry, according to these lawyers.
She has served as president and on the board of the East Bay La Raza Lawyers Association and on the board of the San Francisco La Raza Lawyers Association, according to her Senate questionnaire. Both organizations focus on expanding legal access in the Latinx community and supporting Latinx attorneys.
She “worked tirelessly” to keep the East Bay La Raza Lawyers Association funding scholarships and promoting mentorships for Latinx law school students, according to Amaya. And she made sure the organization’s Judicial Endorsement Committee met with and endorsed candidates for the bench, especially those who would promote the organization’s mission.
“She did a lot to continue our mission statement of growing the Latinx community’s presence in the California bar and bench,” said Amaya.
Judge Martínez-Olguín has even taught Spanish for Lawyers at the University of California, Berkeley School of Law, where she earned her law degree.
That wasn’t her first time in the classroom. Before attending law school, the judge was a bilingual kindergarten teacher in Oakland, California, she told the Senate Judiciary Committee.
After graduating from law school, she clerked for U.S. District Judge David Briones in the Western District of Texas.
All those elements of her background mean Judge Martínez-Olguín will bring a unique and much-needed perspective to the federal bench, according to attorneys.
Her confirmation is “very significant, because it will bring a different viewpoint that is missing on the bench,” Manzo said. “Judges bring their career and personal experiences when making decisions, and having her there with a civil rights/immigration attorney and Latina viewpoint will create a richer discussion and interpretation of the law.”
“She will truly be able to apply sound legal principles to real-life situations that deal with real-life people and have real-life outcomes,” echoed Amaya.
“She will be a wonderful judge,” he added.
–Editing by Nicole Bleier.
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We need MORE NDPA “practical scholars” like Judge Martínez-Olguín — MANY MORE — on the Federal Bench — at ALL levels! The place where the NDPA can make the most immediate positive impact is at EOIR! That’s why I’m urging NDPA members to get those applications in for current Immigration Judge vacancies and all that come up in the future.
We’ve seen in the past few weeks, graphically, how horrible judging from unqualified right wing zealots appointed by Trump can destroy precious individual rights and freedoms in America. NOW is the time to “model” the positive impact that practical scholars committed to due process, immigrants’ rights, and excellence in decision-making can have on American justice — starting at the all-important “retail level!”
The Right to Seek Asylum in El Paso: A Q&A with Marisa Limón Garza, Executive Director of Las Americas
Marisa Limón Garza is executive director of the nonprofit Las Americas Immigrant Advocacy Center in El Paso, Texas. Founded in 1987 to aid refugees from the civil wars in Central America, Las Americas has provided legal representation to thousands of refugees and asylum seekers. Today, the staff of 19 is adapting to the growing, complex needs at the second-busiest port of entry for asylum seekers, after San Diego. Limón Garza, a native El Pasoan, talks about the challenges the organization faces as the United States rejects asylum law. “We’re seeing more expressions of xenophobia towards migrants on both sides of the border,” she said.
Las Americas has been serving migrants and asylum seekers since the 1980s. How has the population you serve changed since then?
The population that we started off serving was mostly Central American people seeking asylum. That population was our main focus. Over time, it’s shifted. For a long time, we’ve had a focus on women who were impacted by domestic violence or gender-based violence. We continue to have a community program specifically for crime victims. And so that has been something that we’ve persisted with. And then now we’re also working with people in the detention center setting. So, it’s evolved over time to meet the needs of immigrants and migrants.
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Are you seeing more people than ever? Or the same?
Right now, there are limitations on how many services we can provide, because of the number of attorneys that we have on staff, which is four. Attracting talent at the nonprofit level can be hard. It’s also a challenge in a community like ours that doesn’t have a law school. But we are seeing many people come for services. Especially due to the policies from the Trump administration and now the Biden administration. The need continues to grow. We are contacted by people all the time seeking assistance. And it’s more than we can actually serve.
What are the challenges you’re seeing with the populations you’re helping?
The challenges are related to the ways that the policies are being implemented. The people in our detained program have been focusing on a strategy of getting people out of detention on bond, because they’ll have a much higher chance of getting asylum when they have access to representation outside the detention center setting. But that’s become a lot more challenging in the past three months. There’s been a shift. Judges are not allowing people to be released on bond. And so that’s something that we are monitoring. We’re now taking on more cases for full representation through the asylum process with some people. So that’s a shift for us.
Governor Greg Abbott’s Operation Lone Star was extended to El Paso. How has it affected your community?
Operation Lone Star has been in our community since the city declared an emergency in December. It certainly has changed the dynamic with the more militarized presence and more enforcement. Visually, there’s more razor wire, more physical barriers, more obstacles. And the DPS squad cars everywhere.
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Can you talk about the CBP One app? I was in Reynosa, Mexico, recently. There were a lot of complaints about the app from asylum seekers, saying it doesn’t work. What are you experiencing in Ciudad Juárez with CBP One?
Our team has been helping folks get connected to the app and working with the Chihuahua state government in their COESPO office. Through that, we’ve been able to support over 662 people trying to access the app. It is challenging, even with the great Wi-Fi that’s available at COESPO. And it’s certainly been difficult as different versions of the app come out. There’s new glitches or glitches that didn’t happen before. Recently, there was a glitch where people were being notified on their screen that they needed to be north of the center of the country to secure an appointment. And of course, these people were applying from Ciudad Juárez, so it should have automatically included them, but they were being bumped out. Things like that continue to be challenges for people.
Are you having success with the app? Are some people getting through?
A minimal number. It’s not to the extent that we would like, but some people have secured appointments for themselves and their families.
Does frustration with the app lead asylum seekers to gather at ports of entry?
I think it’s the combination of rumors being shared about when people can access the port along with a level of frustration with the app. Combined, it creates a situation where people have this growing frustration, and they’re wanting to move forward but can’t. So it’s certainly part of the dynamic. I wouldn’t say it’s the sole factor. But it certainly contributes to that feeling that people are facing.
. . . .
Have conditions become more precarious for migrants arriving in Ciudad Juárez?
I think this has fomented because so many migrants have been coming towards the ports of entry. And when they go to the ports, some of those ports decide to close. That’s caused more of a challenge between community members and the migrants themselves. We’re seeing more expressions of xenophobia towards migrants on both sides of the border. And so that’s something that may have always existed but wasn’t as spoken out loud. Now it seems to be ratcheting up, although there’s still the presence of people who want to welcome and support migrants.
What future problems or issues do you see coming down the road?
I foresee challenges if we continue with the CBP One app. If that’s the only way people can access protection, then it really limits asylum. We would prefer that people be able to access a port of entry, claim their credible fear, and seek protection. We’re also mindful of the transit ban that is likely to go into place and will cause a lot of difficulty. People are supposed to seek asylum in the first country they cross through before seeking asylum here, but many of those countries have overrun asylum systems already. Adding to that challenge are the geopolitics as many different countries seem to be working with the United States to wall off access. This means that vulnerable people have far fewer places to turn to. The right to seek asylum, even though it is recognized in international law, is not being upheld.
What are solutions that you wish would be enacted right now by the U.S. and Mexican governments to fix things at the border?
We’d like there to be more transparency with border communities, at all levels, to ensure that plans are incorporated into the community, and there’s clear understanding of how they will work. Right now, there’s no clear information on what’s going to happen on May 11 [when Title 42 ends], and it’s less than a month away. We’d also like to see attention to the backlog of asylum claims within the courts, because there are many years that pass before someone can get access. Also reduce the time it takes to get a work permit. Right now, it takes at least six months to a year. That makes it riskier for people who must take more dangerous jobs and do things off the record. It’s important for people to earn a living and support their loved ones in a dignified way.
. . . .
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Read the full interview at the link.
Think the Biden Administration is paying attention and has used their 2+ years in office to work with experts to be ready to welcome legal asylum seekers excercising their rights upon the inevitable end of the Title 42 charade?Not a chance!
Department of Homeland Security Secretary Alejandro Mayorkas said Thursday that the Biden administration plans to announce preparations across the U.S.-Mexico border next week in anticipation of an influx of migrants after the White House lifts pandemic-related restrictions on May 11.
Mayorkas declined to provide details about the government’s efforts but said immigration detention facilities would have additional beds available to hold migrants facing possible deportation.
“I think next week we’ll have more to say about our preparation and some of the things we are going to be doing,” Mayorkas told reporters at DHS headquarters in Washington.
. . . .
Since March 2020, DHS has leaned on the Title 42 policy as its primary enforcement tool, expelling more than 2 million migrants back to Mexico or their home countries. But Biden officials face pressure from immigrant advocates and some Democrats calling for an end to the policy they view as a carry-over from the Trump administration’s harsher approach.
DHS officials further blame the Title 42 policy for encouraging repeat illegal crossing attempts because migrants don’t face the threat of federal prosecution and jail time that they would under standard immigration rules. Lifting Title 42, Biden officials say, is key to restoring the legal consequences they need to deter illegal entries.
. . . .
Miller, the acting CBP commissioner, said officials will attempt to tamp down the surge with “enhanced expedited removal” — a fast-track deportation process for those who don’t qualify for humanitarian refuge.
But, he cautioned, “it will take time” for deportations to have a deterrent effect.
Deterrence, deterrence, deterrence = failure, failure, failure! It’s been failing for decades and is guaranteed to do so in the future! Governments can’t deter, detain, and deport their way out of humanitarian situations.
But, the the Biden Administration is happy to waste billions and unnecessarily endanger human lives making the same old mistakes over and over.
Not a mention of what REALLY would work: Honoring our legal obligations and enforcing the law by inviting asylum seekers to apply at ports of entry; making the system efficient and user friendly; providing wide access to representation; and timely and robustly granting asylum to qualified applicants under generous standards enunciated by the Supremes and the BIA decades ago but widely ignored, often mocked, in practice!
If, contrary to the Administration’s predictions of doom, gloom, and “planned failure,” the legal system works at the border, it will be due to folks like Marisa Limón Garza and NGOs forcing the law to work as it should — no thanks to out of touch politicos and bureaucrats in the Biden Administration and to GOP nativists like Abbott.
More than two years have passed since Joe Biden took office on the promise of a more humane approach to immigration and the border. But in many ways, the president has struggled to distinguish himself from his hard-line predecessor: His administration has expanded Title 42, the anti-immigration loophole authorized by Donald Trump; failed to resolve the family separation crisis; and proposed a new spin on Trump’s “transit ban” that would make a large percentage of migrants ineligible for asylum.
What’s more, the Biden administration has also apparently failed to adequately protect thousands of migrant children from labor trafficking inside the US. On Monday, The New York Times reported that the Department of Health and Human Services did not intervene after receiving repeated warnings about underage migrants the agency had sent to sponsors who then forced them to work grueling hours in dangerous conditions. While the department is required by law to vet sponsors to help ensure that children placed in their care will not be trafficked or exploited, those vetting requirements reportedly went by the wayside in 2021 amid a scramble to home those children.
The Times noted that at least five HHS staffers have said they were pushed out of their roles after sounding the alarm about child safety concerns. Jallyn Sualog, a former HHS official tasked with overseeing the agency’s response to unaccompanied migrant children, told the paper that she went to great lengths to warn her superiors that children were being put at risk. “They just didn’t want to hear it,” said Sualog, who said she was moved to a different post in 2021 after filing a complaint with the department’s internal watchdog. (She later accused the department of retaliation before settling with the agency and resigning.)
The paper traced the crisis back to Susan Rice, the president’s domestic-policy adviser. In 2021, as Rice was attempting to move throngs of unaccompanied migrant children from HHS shelters to homes, she and her aides reportedly received a memo detailing accounts of abusive sponsors but did nothing. (White House deputy press secretary Andrew Bates told the Times that Rice “did not see the memo and was not made aware of its contents.”
Since the summer of that year, the number of migrant children being trafficked or exploited has skyrocketed. Monthly calls to the HHS reporting trafficking, neglect, or abuse have more than doubled in the two years since Biden entered office, per the Times.
. . . .
*********************
Read Caleb’s full article at the link.
Two years of ignoring experts, appointing the wrong folks, and NOT FIXING what could and should have been a success in showing how robust, legal, properly generous, refugee and asylum programs, staffed and run by experts, could be a model of good government! Go figure!
The Trumpist GOP “plays” to a right wing extremist base — wedded to un-American and generally unpopular “culture wars” targeting a wide range of groups who basically are America’s future!
By contrast, the Biden Administration “disses, and runs away from” key parts of the Dem Coalition whose humane practical expertise and leadership should be at the core of the message. It’s certainly not that Biden’s misguided “Miller Lite” approach to asylum seekers and children at the border has “peeled off” any Trumpist support or is going to be a “winner” among independent voters!
How bad are the Biden Administration’s proposals? They generated an amazing 51,000+ public comments, the vast majority in opposition, despite a ridiculously short 30-day comment period apparently intended to “squelch” dissent.
Dems need to stop “running scared” on social justice issues and promote American values including the benefits of immigration and the importance of robust, generous, orderly legal asylum and refugee programs!See, e.g., https://www.washingtonpost.com/opinions/2023/04/18/biden-democracy-fight-republican-extremism/ (Perry Bacon, Jr. gets everything right in his critique of Biden’s failure take on GOP extremism, EXCEPT for his glaring omission of immigrants rights as a primary “driver” of social justice in America and vice versa).
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up” — Can new Chief Immigration Judge Sheila McNulty get this poor little fella back on his feet? Only time will tell!
Sources report that A.G. Merrick Garland has appointed Judge Sheila McNulty to be the Chief Immigration Judge at EOIR. Previously, she was the Regional Deputy Chief Immigration Judge.
The position had been vacant since the resignation of the previous Chief Immigration Judge, Tracy Short, in July 2022. Unlike Short, who came from ICE with no prior judicial experience, Chief Judge McNulty has been an Immigration Judge since 2010. For the last reported period that she was an Immigration Judge at the Chicago Immigration Court, 2014 -2015, Judge McNulty granted 52.3% of asylum cases, according to TRAC. She became an Assistant Chief Immigration Judge in 2015, and was promoted to Regional Deputy Chief Immigration Judge in 2021.
Sheila McNulty was appointed as Regional Deputy Chief Immigration Judge in March 2021. Judge McNulty received a Bachelor of Arts in 1984 from Miami University of Ohio and a Juris Doctor in 1991 from New England School of Law. From November 2015 to March 2021, she served as an Assistant Chief Immigration Judge, and during this time, from February 2020 to March 2021, she also served as Acting Deputy Chief Immigration Judge for the West. From October 2010 to November of 2015, she served as an Immigration Judge at the Chicago Immigration Court. From 2000 to 2010, Judge McNulty served as a Special Assistant U.S. Attorney with the former Immigration and Naturalization Service (INS) and U.S. Immigration and Customs Enforcement, in the Chicago Office of the U.S Attorney’s Office for the Northern District of Illinois. From 1991 to 2000, she served as a trial attorney for the former INS, entering on duty through the Attorney General’s Honors Program. From 1985 until 1988, Judge McNulty worked as a community activist and organizer in Cambridge, Massachusetts. Judge McNulty is a member of the Illinois Bar.
Congratulations and good luck to Chief Judge McNulty in her new leadership role. The Immigration Judge program needs help — lots of it!
Anti-asylum attitudes among some judges, wildly inconsistent decisions, “asylum free zones,” poor training, unprofessional conduct, lack of expertise, little quality control, emphasis on “productivity over due process,” inadequate law clerk support, over-reliance on oral decisions, debilitating backlogs, shortage of courtrooms and chambers, unreliable technology, “Aimless Docket Reshuffling” to meet the agenda of DOJ politicos, poor relations with the bar, lack of a due process vision, and cratering morale are among the many existential problems facing the new Chief Judge!
DUE PROCESS DOESN’T LIVE HERE ANY MORE: WEAPONIZED IMMIGRATION COURTS ARE AMERICA’S STAR CHAMBERS
By
Paul Wickham Schmidt
Retired U.S. Immigration Judge
“Immigration 101”
Renaissance Institute
Notre Dame University of Maryland in Baltimore
April 18, 2023
I. INTRODUCTION
Good morning. Thank you so much for inviting me, and for coming out on this beautiful Spring day. It’s an honor to be here.
Today, I’m going to tell you the sad story of how our Immigration Courts, housed in an agency called the Executive Office for Immigration Review (acronym “EOIR” for you “Winnie The Pooh” fans) within the U.S. Department of Justice, went from being the “Jewel in the Crown” to becoming “America’s Star Chambers,” where due process and human dignity are trampled daily. I will intertwine EOIR’s saga with my own career. Because, in many ways, my history and EOIR’s are the same. But, there’s a larger story in here that I hope you will pick up and that will tie together much of what you will learn in class.
Now, this is when I used to give my comprehensive disclaimer providing “plausible deniability” for everyone in the Immigration Court System if I happened to say anything inconvenient or controversial. But, now that I’m retired, we can skip that part.
However, I do want to hold Professor Rabben, the Renaissance Institute, the University, your faculty, trustees, you, and anybody else of any importance whatsoever “harmless” for my remarks which are solely my own views. No party line, no bureaucratic doublespeak, no sugar coating, no BS. Just the truth, the whole truth, and nothing but the truth, as I see and have lived it for five decades.
Also, because today is Tuesday, and you are such a great audience, I’m giving you my famous, industry-best, absolute, unconditional, money-back guarantee that this talk will be completely free from computer-generated slides, power points, or any other type of distracting modern technology that might interfere with your total comprehension or listening enjoyment. In other words, I am your “power point.”
II. CAREER SUMMARY
I graduated in 1970 from Lawrence University a small liberal arts college in Appleton, Wisconsin, where I majored in history. My broad liberal arts education and the intensive writing and intellectual dialogue involved were the best possible preparation for all that followed.
I then attended the University of Wisconsin School of Law in Madison, Wisconsin, graduating in 1973. Go Badgers!
I began my legal career in 1973 as an Attorney Advisor at the Board of Immigration Appeals (“BIA”) at the U.S. Department of Justice (“DOJ”) under the Attorney General’s Honors Program. Admittedly, however, the BIA’s Executive Assistant culled my resume from the “Honors Program reject pile.”
At that time, before the creation of the Executive Office for Immigration Review – “EOIR” — the Board had only five members and nine staff attorneys, as compared to today’s cast of thousands. Among other things, I worked on the famous, or infamous, John Lennon case, which eventually was reversed by the Second Circuit Court of Appeals.[1]
The Chairman of the BIA at that time was the legendary “immigration guru” Maurice A. “Maury” Roberts. Chairman Roberts took me under this wing and shared his love of immigration law, his focus on sound scholarship, his affinity for clear, effective legal writing, and his humane sense of fairness and justice for the individuals coming before the BIA. A sense, I might add, that is conspicuously absent from today’s EOIR.
In 1976, I moved to the Office of General Counsel at the “Legacy” Immigration and Naturalization Service (“INS”). There, I worked for another legendary figure in immigration law, then General Counsel Sam Bernsen. Sam was a first-generation immigrant who started his career as a 17-year-old messenger at Ellis Island and worked his way to the top of the Civil Service ranks. Perhaps not incidentally, he was also a good friend of Chairman Roberts.
At that time, the Office of General Counsel was very small, with a staff of only three attorneys in addition to the General Counsel and his Deputy, another mentor and immigration guru, Ralph Farb. At one time, all three of us on the staff sat in the same office!
In 1978, Ralph was appointed to the BIA, and I succeeded him as Deputy General Counsel. I also served as the Acting General Counsel for several very lengthy periods in both the Carter and Reagan Administrations.
Not long after I arrived, the General Counsel position became political. The incoming Carter Administration encouraged Sam to retire, and he went on to become a name and Managing Partner of the Washington, D.C. office of the powerhouse immigration boutique Fragomen, Del Rey, and Bernsen. He was replaced by my good friend and former colleague, the late Judge David Crosland, who selected me as his Deputy. Dave was also the Acting Commissioner of Immigration during the second half of the Carter Administration, one of the periods when I was the Acting General Counsel.
The third General Counsel that I served under, during the Reagan Administration, was one of my most “unforgettable characters:” the late, great Maurice C. “Mike” Inman, Jr. He was known, not always affectionately, as “Iron Mike.” His management style was something of a cross between the famous coach of the Green Bay Packers, Vince Lombardi, and the fictional Mafia chieftain, Don Corleone.
Although we were totally different personalities, Mike and I made a good team, and we accomplished amazing things. It was more or less a “good cop, bad cop” routine, and I’ll let you guess who played which role.
Among other things, I worked on the Iranian Hostage Crisis, the Cuban Boatlift, the Refugee Act of 1980, the Immigration Reform and Control Act of 1986 (“IRCA”), the creation of the Office of Immigration Litigation (“OIL”), and establishing what has evolved into the modern Chief Counsel system at Department of Homeland Security (“DHS”).
I also worked on the creation of EOIR in 1983, which combined the Immigration Courts, which had previously been part of the INS, with the BIA to improve judicial independence. Interestingly, and perhaps ironically, the leadership and impetus for getting the Immigration Judges into a separate organization came from Mike and the late Al Nelson, who was then the Commissioner of Immigration. Prosecutors by position and litigators by trade, they saw the inherent conflicts and overall undesirability, from a due process and credibility standpoint, of having immigration enforcement and impartial court adjudication in the same division.
I find it disturbing that officials at today’s DOJ have actually recreated and aggravated many of the problems and glaring conflicts of interest that EOIR originally was created to overcome. Indeed, as I will discuss later, they have allowed the Immigration Courts to become “weaponized” as a tool of immigration enforcement.
For example, former Attorney General Jeff Sessions unethically and improperly referred to supposedly fair and impartial Immigration Judges as “in partnership” with DHS enforcement. A.G. Garland has done little to dispel this notion.
By the time I left in 1987, the General Counsel’s Office, largely as a result of the enactment of IRCA and new employer sanctions provisions, had dozens of attorneys, organized into divisions, and approximately 600 attorneys in the field program, the vast majority of whom had been hired during my tenure.
In 1987, I resigned from INS and joined Jones Day’s DC Office, a job that I got largely because of my wife Cathy and her “old girl network.” I eventually became a partner specializing in business immigration, multinational executives, and religious workers. Among my major legislative projects on behalf of our clients were the special religious worker provisions added to the law by the Immigration Act of 1990 and the “Special Immigrant Juvenile” provisions of the INA.
Following my time at Jones Day, I succeeded my former boss and mentor Sam Bernsen as the Managing Partner of the DC Office of Fragomen, Del Rey & Bernsen, the leading national immigration boutique, where I continued to concentrate on business immigration. Immigration is a small community; you need to be nice to everyone because you keep running into the same folks over and over again in your career. While at Fragomen, I also assisted the American Immigration Lawyers Association (“AILA”) on a number of projects and was an asylum adviser to the Lawyers’ Committee on Human Rights, now known as Human Rights First.
In 1995, then Attorney General Janet Reno appointed me Chairman of the BIA. Not surprisingly, the late Janet Reno was my favorite among all of the Attorneys General I worked under. I felt that she supported me personally, and she supported the concept of an independent judiciary, even though she didn’t always agree with our decisions and vice versa.
She was the only Attorney General who consistently came to our Investitures and Immigration Judge Conferences in person and mixed and mingled with the group. She had a saying “equal justice for all” that she worked into almost all of her speeches, and which I found quite inspirational.
She was also hands-down the funniest former Attorney General to appear on “Saturday Night Live,” doing her famous “Janet Reno Dance Party” routine with Will Farrell immediately following the end of her lengthy tenure at the DOJ. Can you imagine Jeff Sessions, Bill Barr, or Merrick Garland making live appearances on SNL, and laughing at themselves. Not likely!
Among other things, as Chair, I oversaw an expansion of the Board from the historical five members to more than 20 members, a more open selection system that gave some outside experts a chance to serve as appellate judges on the Board, the creation of a supervisory structure for the expanding staff, the establishment of a unified Clerk’s Office to process appeals, implementation of a true judicial format for published opinions, institution of bar coding for the tens of thousands of files, the establishment of a pro bono program to assist unrepresented respondents on appeal, the founding of the Virtual Law Library, electronic en banc voting and e-distribution of decisions to Immigration Judges, and the publication of the first BIA Practice Manual, which actually won a “Plain Language Award” from then Vice President Gore.
I also wrote the majority opinion in my favorite case, Matter of Kasinga, establishing for the first time that the practice of female genital mutilation (“FGM”) is “persecution” for asylum purposes.[2] The “losing” attorney in that case was none other than my good friend, then INS General Counsel David A. Martin, a famous emeritus immigration professor at University of Virginia Law, who personally argued before the Board.
In reality, however, by nominally “losing” the case, David actually won the war for both of us, and more important, for the cause of suffering women throughout the world. We really were on the same side in Kasinga — the side of protecting vulnerable women.
During my tenure as Chairman, then Chief Immigration Judge (now BIA Judge) Michael J. Creppy and I were founding members of the International Association of Refugee Law Judges (“IARLJ”). This organization, today headquartered in The Hague, promotes open dialogue and exchange of information among judges from many different countries adjudicating claims under the Geneva Convention on Refugees.
In 2001, under pressure from the incoming Bush Administration and new Attorney General John
Ashcroft, I stepped down as BIA Chairman, but remained as a Board Member until April 2003. At that time, Ashcroft, who was not a fan of my opinions, invited me to vacate the Board and finish my career at the Arlington Immigration Court, where I remained until my retirement on June 30, 2016.
So, I’m one of the few ever to become an Immigration Judge without applying for the job. Or, maybe my opinions, particularly the dissents, were my application and I just didn’t recognize it at the time. But, it turned out to be a great fit, and I truly enjoyed my time at the Arlington Court.
I have also taught at George Mason School of Law and at Georgetown Law where I am still an Adjunct Professor.
As a sitting judge, I encouraged meticulous preparation and advance consultation with the DHS Assistant Chief Counsel to stipulate or otherwise narrow issues. There currently are approximately two million pending cases in Immigration Court, a backlog that grows every day. Because of this overwhelming workload, efficiency and focusing on the disputed issues in court are particularly critical.
III. THE DUE PROCESS VISION
Now, let’s move on to the other topics: First, vision. The “EOIR Vision” once was: “Through teamwork and innovation, be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” In one of my prior incarnations, I was part of the group that developed that now abandoned and disrespected vision statement. Perhaps not surprisingly given the timing, that vision echoed the late Janet Reno’s “equal justice for all” theme.
Sadly, the Immigration Court System has moved ever further away from that due process vision. Instead, years of neglect, misunderstanding, mismanagement, and misguided priorities imposed by the U.S. Department of Justice have created judicial chaos with an expanding backlog now at an astounding two million cases, continuing to grow, with no clear plan for resolving them in the foreseeable future. Indeed, former AG Sessions actually maliciously and intentionally tried to add a potential 300,000 previously closed cases to those already on the active docket.
There are now more pending cases in Immigration Court than in the entire U.S. District Court System. Notwithstanding the hiring of hundreds of new judges by the past two Administrations, most in the Trump Administration from the ranks of Government prosecutors, the backlog continues to grow by leaps and bounds.
The Government has added hundreds of thousands, of new cases to the Immigration Court docket, again without any transparent plan for completing those already pending cases consistent with due process and fairness. They have done this despite efforts by the Biden Administration to re-establish sensible enforcement priorities and prosecutorial discretion that were trashed by the Trump Administration.
Even under Attorney General Garland, inexcusably, the “flavor of the day” is haphazardly advanced before pending cases which, in turn, are “orbited” to the end of the years long line. This results in what I call “Aimless Docket Reshuffling” or “ADR, EOIR-style.”
Notably, and most troubling, the only things that aren’t “priorities” for any Administration are fairness and due process in the immigration hearing process which have clearly been “thrown from the train” as the deportation express hurtles down the track. The Due Process Clause of the U.S. Constitution – has become “the enemy” in today’s disgracefully dysfunctional Immigration Courts.
Nobody has been hit harder by this preventable disaster than asylum seekers, particularly scared women and children fleeing for their lives from the Northern Triangle of Central America. In Immigration Court, notwithstanding the life-or-death issues at stake, unlike criminal court there is no right to an appointed lawyer.
Individuals who can’t afford a lawyer must rely on practicing lawyers who donate their time or on nonprofit community organizations to find free or low-cost legal representation. Although the Government stubbornly resists the notion that all asylum seekers should be represented, studies show that represented asylum seekers are at least five times more likely to succeed than those who must represent themselves. For recently arrived women with children, the success differential is an astounding fourteen times![3]
Although the Biden Administration promised to do better, they actually are using somewhat improved technology to make matters worse for lawyers, mindlessly overbooking cases without advance consultation with counsel — sometimes simultaneously scheduling cases for the same attorney in different cities at the same time.
An Assistant Chief Judge for Training in the Obama Administration infamously claimed that he could teach immigration law to unrepresented toddlers appearing in Immigration Court. Issues concerning representation of so-called “vulnerable populations” continue to haunt our Court System. Even with Clinics and Non-Governmental Organizations pitching in, there simply are not enough free or low-cost lawyers available to handle the overwhelming need.
To make matters worse, Administrations of both parties engage in a number of legally questionable and morally reprehensible “gimmicks” and “schemes” to keep asylum applicants at the Southern Border from getting fair hearings in Immigration Court.
Whether it’s “dedicated dockets,” Remain in Mexico, abusive use of Title 42, family detention, child separation, invented “bars” to asylum, or forcing applicants stranded in dangerous conditions in Mexico to use failing technology to schedule appointments, the objective is to prevent asylum applicants from receiving due process. Instead, they are often wrongfully “orbited” back to Mexico, Guatemala, Haiti, Honduras, and El Salvador.
These are among the world’s most dangerous countries, some basically without functional governing systems. Once there, many suffer kidnapping, extortion, rape, torture, and even death at the hands of the same forces from which they originally fled.
It’s a total and intentional perversion of asylum law and American values. Worst of all, complicit Article III Courts, all the way up to the Supreme Court, regularly “tank” in their duties to protect asylum applicants’ legal and constitutional rights. Instead, they “go along to get along” or pretend not to see or understand the grotesque human tragedy that they have enabled.
Customs and Border Protection officials brag about how limiting or eliminating asylum protections helps solve “the problem” and “reduce the numbers” at our Southern Border. In their view, refugees seeking legal protections under our laws and international conventions are a “problem” and human lives are merely “numbers” to be “reduced.”
It’s part of a concerted effort to “dehumanize the other” and convert them to “non-persons” under the law. I call this “Dred Scottification” after the infamous pre-Civil War Supreme Court case that declared that Blacks were not “persons” under our Constitution, although I hardly originated this term.
Notwithstanding today’s legal, Constitutional, and human rights disaster, I, for one, still believe that with proper enlightened leadership and some guts the “EOIR vision” could be fulfilled.
IV. THE ROLE OF THE IMMIGRATION JUDGE
Changing subjects, to the role of the Immigration Judge: What’s it like to be an Immigration Judge? As an Immigration Judge, I was an administrative judge. I was not part of the Judicial Branch established under Article III of the Constitution.
The Attorney General, part of the Executive Branch, appointed me, and my authority was subject to her regulations. I might add that I also served at her pleasure, something that GOP Administrations “get,” but ineffectual Democratic Administrations, not so much. And, that has lots to do with the abysmal state of justice in the Immigration Courts under Garland.
We should all be concerned that the U.S. Immigration Court system, between 2017 and 2021, was totally under the control of Attorneys General Jeff Sessions and Bill Barr, who consistently took negative views of immigrants, both legal and undocumented. Both failed to recognize the many essential, positive contributions that immigrants make to our country. They were also unfailingly biased against migrants in Immigration Court and their attorneys, in their negative and unethical “precedents,” and in prosecutor-friendly, immigration experience light, criteria for appointing new Immigration Judges and Appellate Judges at the BIA.
Indeed, in February 2020, a group of more than 2,500 former DOJ officials from Administrations of both parties, including me and many of my colleagues from the Round Table of Former Immigration Judges, took the extraordinary step of publicly calling on Barr to resign for corruption and compromising the independent role of the DOJ.[6] Among other things, we “strongly condemn[ed] President Trump’s and Attorney General Barr’s interference in the fair administration of justice.” Certainly, that was reflected in his mishandling of the Immigration Courts and “weaponizing” them against migrants and their lawyers
The late Judge Terence T. Evans of the Seventh Circuit Court of Appeals offered one of the best descriptions of what it’s like to be an Immigration Judge:
Because 100 percent of asylum petitioners want to stay in this country, but less than 100 percent are entitled to asylum, an immigration judge must be alert to the fact that some petitioners will embellish their claims to increase their chances of success. On the other hand, an immigration judge must be sensitive to the suffering and fears of petitioners who are genuinely entitled to asylum in this country. A healthy balance of sympathy and skepticism is a job requirement for a good immigration judge. Attaining that balance is what makes the job of an immigration judge, in my view, excruciatingly difficult.[5]
My good friend and colleague, Judge Dana Leigh Marks of the San Francisco Immigration Court, who is the past President of the National Association of Immigration Judges, offers a somewhat pithier description: “[I]mmigration judges often feel asylum hearings are ‘like holding death penalty cases in traffic court.’”[7]
An actual practitioner before today’s dysfunctional Immigration Courts was even blunter in an interview appearing in Mother Jones, one of my favorite scholarly publications: “An [expletive deleted] disaster that is designed to fail.”[7]
Certainly, balance, Due Process, and fundamental fairness have been sacrificed in today’s Immigration Courts in favor of expediency and “weaponizing” the Immigration Courts as tools of DHS enforcement. In other words, they are now structured to be little more than a whistle-stop on the deportation express as the complicit Article IIIs look on.
Barr even took the extreme, unethical, step of moving to “decertify” the Immigration Judges union, the National Association of Immigration Judges (“NAIJ”), of which, for full disclosure, I am a retired member. Actually, I believe my appearance here today was arranged through Linda contacting the NAIJ!
One of the keys to the Immigration Judge’s job is supposed to be issuing scholarly, practical, well-written opinions in the most difficult cases. That ties directly into the job of the Immigration Court’s Judicial Law Clerks (“JLCs”) assisted by legal interns from local law schools. Obviously, however, quality and care took a back seat to “productivity” under the Trump Administration’s program of “dumbing down” the Immigration Courts — not by any means effectively countermanded under Garland. Indeed, the already-strained ratio of Immigration Judges to judicial law clerks has gotten much worse over the past few years.
V. RECLAIMING THE VISION
Our Immigration Courts are going through an existential crisis that threatens the very foundations of our American Justice System. Earlier, I told you about my dismay that the noble due process vision of our Immigration Courts has been derailed and trashed. What can be done to re-establish it?
First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. We must end 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.
Ultimately, that will take an independent Article I Immigration Court, which has been supported by groups such as the ABA, the FBA, and the NAIJ, and was introduced in the last Congress by Subcommittee Chair Zoe Lofgren (D-CA).
Indeed, in February 2020, a hearing on “The State of Judicial Independence and Due Process in U.S. Immigration Courts” took place before Chair Lofgren’s Subcommittee on Immigration and Citizenship. Our 50+ strong “Round Table of Former Immigration Judges” filed a written statement in support of Due Process and creation of an independent, Article I Court.
You can find it on my blog “Immigrationcourtside.com,” which, of course, I highly recommend for anyone trying to understand what’s really happening in immigration these days.[8] We also joined 53 other distinguished organizations and NGOs in writing to Congress urging them to establish an independent Immigration Court.[9]
But, Article I is still a future dream. In the meantime, there is no excuse for Garland’s failure to make needed personnel, structural, and “cultural” changes at EOIR to restore due process.
Second, there must be radical structural changes so that the Immigration Courts are organized and run like a real court system, not a highly bureaucratic, headquarters bloated, enforcement agency. This means that sitting Immigration Judges, like in all other court systems, must control their dockets.
We must end the practice of having often clueless administrators in Falls Church and political bureaucrats in Washington, D.C., none of whom are sitting judges responsible for daily court hearings, manipulate and rearrange local dockets in an attempt to achieve policy goals unrelated to fairness and due process for individuals coming before the Immigration Courts.
Additionally, the judicial hiring process over the past 22 years has failed to produce the necessary balance because judicial selectees from private sector backgrounds – particularly those with expertise in asylum and refugee law –have been so few and far between. Indeed, during the Obama Administration nearly 90% of the judicial appointments were from Government backgrounds.
In the Trump Administration, nearly 100% of judicial appointments by Attorney General Barr came from prosecutorial or other public sector backgrounds. A number of these conspicuously lacked expertise in immigration and human rights laws!
Garland has done better in bringing in expert practical scholars and even getting rid of a few of the most horribly unqualified judges. But, in an out-of-control system with more than 600 judges, and growing, it’s going to take more than this “nibbling around the edges” to restore due process.
Third, there must be a new administrative organization to serve the courts, much like the Administrative Office of the U.S. Courts. Currently, the unwieldy hiring process, inadequate courtroom space planning and acquisition, and unreliable, often-outdated technology are simply not up to the needs of a rapidly expanding court system.
EOIR basically has “institutionalized worst practices.” This includes limiting legitimate continuances and placing judges under “performance plans” designed to hustle cases through the system, with insufficient quality control, while producing “assembly line injustice.”
Fourth, I would repeal all of the so-called “Ashcroft & Barr reforms” at the BIA and put the BIA back on track to being a real appellate court, as the “Appellate Division” of a new independent Immigration Court. A properly comprised and well-functioning Appellate Division should transparently debate and decide important, potentially controversial, issues, publishing dissenting opinions when appropriate.
All Appellate Judges should be required to vote and take a public position on all important precedent decisions. The Appellate Division must also “rein in,” rather than encourage and enable, those Immigration Courts with asylum grant rates so incredibly low as to make it clear that the generous dictates of the Supreme Court in Cardoza-Fonseca[9] and the BIA itself in Mogharrabi[10] are not being followed.
Well over a decade has passed since Professors Andy Schoenholtz, Phil Shrag, and Jaya Ramji-Nogales published their seminal work Refugee Roulette, documenting the large disparities among Immigration Judges in asylum grant rates.[11] The BIA, the only body that can effectively establish and enforce due process within the Immigration Court system, has not adequately addressed this situation.
Indeed, among the still-serving Barr appointments to the BIA are Immigration Judges who deny asylum nearly 100% of the time and are the subject of complaints from the private bar and NGOs about bias, rudeness, and other unprofessional behavior. In other words, Barr implemented “worst practices and policies” at the BIA and in the Immigration Courts in an attempt to “snuff out” every remnant of fundamental fairness and due process for migrants. He and Sessions particularly targeted the most vulnerable asylum seekers and their families for unfair treatment.
Inexplicably, and outrageously, Garland has failed to “clean house” and bring in the necessary qualified experts to reshape the Immigration Courts in a due process image. In particular, Trump holdovers contain due to dominate the BIA and turn out lousy, anti-immigrant, anti-due process decisions, many of which are slammed by the Circuit Courts on review.
This is hardly “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all!” The sharp drop-off in Immigration Court asylum grant rates during the Trump Administration was impossible to justify in light of the generous standard for well-founded fear established by the Supreme Court in Cardoza-Fonseca and the BIA in Mogharrabi, the regulatory presumption of future fear arising out of past persecution that applies in many asylum cases,[14] and the simple fact that there has been no worldwide diminution in the conditions causing refugees to flee. Indeed, they have gotten worse, in many cases.
The BIA’s chronic inability or unwillingness to aggressively stand up for the due process rights of asylum seekers and to enforce the fair and generous standards required by American law have robbed our Immigration Court System of credibility and public support, as well as ruined the lives of many who were denied protection that should have been granted. We need an Appellate Division that functions like a Federal Appellate Court and whose overriding mission is to ensure that the due process vision of the Immigration Courts becomes a reality rather than a cruel, intentionally unfulfilled promise.
Fifth, and finally, the Immigration Courts need better public service now! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. The public receives a level of service disturbingly below that of any other major court system.
That gives the Immigration Courts an “amateur night at the Bijou” aura totally inconsistent with the dignity of the process and the critical importance of the mission. Yet, after two decades of largely wasted effort, EOIR has failed to produce and implement a coherent, professional, user friendly court management system.
VI. GETTING INVOLVED
Bleak as this picture is, there is some good news. There are hundreds of dedicated and courageous lawyers out there who are former JLCs, interns, my former students, and those who have practiced before the Immigration Courts.
They form the nucleus what I call the “New Due Process Army!” You can be members, and I hope you will.
Thanks to an innovative new online program called VIISTA Villanova, developed by my friend Professor Michele Pistone, retirees who are not lawyers can train to become accredited representatives of recognized nonprofit organizations and actually represent asylum seekers in Immigration Court. Check it out on the internet.
VII. CONCLUSION
In conclusion, in the process of describing my career, I have introduced you to one of America’s largest and most important, yet least understood and appreciated, court systems: The United States Immigration Court. Right now, it is, inexcusably, clearly and beyond any reasonable doubt America’s worst and most dysfunctional court system.
I have shared with you that court’s once-noble due process vision and how it has been viciously and cruelly trampled, first to advance a xenophobic, White Nationalist Qrestrictionist agenda and then because Garland has failed to do his duty.
I have also shared with you my ideas for effective court reform that would restore and elevate the due process vision.
My friends, both our Immigration Courts and our democratic republic are in a grave existential crisis. There are powerful and well-organized forces with a very dark, exclusive vision of America’s future: one that reverses generations of human progress and knowledge and actively promotes intolerance, misinformation, dehumanization, and deconstruction of our democratic institutions and fundamental human values.
It’s an intentionally “whitewashed” version of American history. One that denies the ingenuity, creativity, and forced labor of generations of African Americans who literally built our country! It disregards the courage, tenacity, skill, and strength of Asian Americans who built our Transcontinental Railroad and literally brought our nation together. And, of course, it dismisses the legions of Hispanic Americans who have been “making America great” since before “America was America,” with their culture, hard work, determination, and commitment to the “real” American dream, not the “whitewashed” version.
The future envisioned by these dark forces “x’es out” some of you in this room. Don’t let their darkness and willful ignorance be your future and that of generations to come.
Look around you at the real history and the real America. The future is ours! Don’t let the forces of darkness and a “past that never was” deny our destiny!
Now is the time to take a stand for Due Process, fundamental fairness, human rights, human dignity, and human decency! Join the New Due Process Army and fight to make equal justice under law and the constitutional and human rights of everyone a reality rather than an unfulfilled promise! Due process forever!
Thanks again for inviting me and for listening.
(04/19/23)
[1] Matter of Lennon, 15 I&N Dec. 9 (BIA 1974), rev’d Lennon v. INS, 527 F.2d 187 (2d Cir. 1975).
[2] Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).
[4] “Immigration Director Calls for Overhaul of Broken System,” NBC Bay Area News, May 27, 2015, available online.
[5] Guchshenkov v. Ashcroft, 366 F.3d 554 (7th Cir. 2004) (Evans, J., concurring). [6] Hon. Thomas G. Snow, “The gut-wrenching life of an immigration judge,” USA Today, Dec. 12, 2106, available online at http://www.usatoday.com/story/opinion/2016/12/12/immigration-judge-gut-wrenching-decisions-column/95308118/
[7] Julia Preston, “Lawyers Back Creating New Immigration Courts,” NY Times, Feb. 6, 2010.
[15] See, e.g., Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) (denial of due process where IJ tried to bar the testimony of minor respondent by disqualifying him as an expert witness under the Federal Rules of Evidence). While the BIA finally stepped in with this precedent, the behavior of this Judge shows a system where some Judges have abandoned any discernable concept of “guaranteeing fairness and due process.” The BIA’s “permissive” attitude toward Judges who consistently deny nearly all asylum applications has allowed this to happen. Indeed the Washington Post recently carried a poignant story of a young immigration lawyer who was driven out of the practice by the negative attitudes and treatment by the Immigration Judges at the Atlanta Immigration Court. Harlan, Chico, “In an Immigration Court that nearly always says no, a lawyer’s spirit is broken,” Washington Post, Oct. 11, 2016, available online at https://www.washingtonpost.com/business/economy/in-an-immigration-court-that-nearly-always-says-no-a-lawyers-spirit-is-broken/2016/10/11/05f43a8e-8eee-11e6-a6a3-d50061aa9fae_story.html
How does this live up to the EOIR Vision of “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all?” Does this represent the best that American justice has to offer?
We need to keep challenging this mockery of justice from all angles until the system changes! Keep raising the EOIR farce with Dems at all levels — let them know that due process at EOIR is a “front burner” issue they can’t keep sweeping under the rug!
Help groups that are assisting individuals stuck in this bureaucratically-created “Hell on Earth.” The EOIR system “feeds” on (picks on) the unrepresented, uninformed, traumatized, and desperate! Help people get effective representation, win cases, save their lives, and bring systemic attention to the gross injustices being inflicted on a daily basis by this dysfunctional system!
The “powers that be” at DOJ and the White House have little interest in leading and institutionalizing due process and excellence in judging at EOIR. But, neither are they positioned to prevent it from taking hold and growing on its own. That’s particularly true because Immigration Judges with practical expertise, courtroom skills, and a commitment to enforcing and vindicating individual rights ultimately “move” dockets more efficiently, motivate others to work together toward the ends of justice, and create fewer problems and embarrassments.
Even the BIA can’t screw up cases they don’t get! At some point, even inept and largely tone-deaf Dem politicos and their bureaucratic minions start “warming” to proven solutions rather than recreating failures and flailing away with bone-headed “deterrence” gimmicks.
The BIA might eschew precedents favorable to individuals. But, thanks to litigation against EOIR by the NY Legal Assistance Group, unpublished decisions are more widely available now on the internet. Even at the IJ level, advocacy organizations have established online networks and banks of good decisions by Immigration Judges granting relief.
These recognize and credit outstanding, exemplary, courageous judicial performance in a way that EOIR never does. Perhaps more importantly, these “unheralded victories” provide “road maps” and inspire others! Also, every concrete example of how good judging and good lawyering, on both sides, can work at EOIR serves as a condemnation and rebuke of the Administration’s lack of concern about due process, fundamental fairness, and best practices at EOIR.
While the picture is undoubtedly ugly, we must keep “painting it” — with vivid colors — until complacent folks in the power structure (particularly tone-deaf Dems) can no longer look away, cover their eyes and ears, and deny the truth about the “third world” system they are disingenuously passing off as American “justice.”
The message is straightforward: Due process, fundamental fairness, and best practices work! For everyone! It’s past time for Garland and the rest of this Administration to “get their collective heads out of the sand” and start heeding and acting decisively on that truth!
Bury your head in the sand Sander van der Wel from Netherlands Creative Commons Attribution-Share Alike 2.0 It’s way past time for AG Merrick Garland and Biden politicos to change this highly ineffective approach to the EOIR due process disaster!
