"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.
https://www.youtube.com/watch?v=kV_yNi23nbQ
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This is “Must See TV” for all NGOs who practice, or wish to practice, before the U.S. Immigration Court and the DHS! An impressive offering for an agency that houses the only major U.S. court system unable to implement the not-so-new technology for electronic filing!
PWS
01/06/17
Amicus Invitation No. 17-01-05
AMICUS INVITATION (MISPRISION OF A FELONY), DUE FEBRUARY 6, 2017
The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue:
ISSUES PRESENTED:
Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a Request to Appear as Amicus Curiae (“Request to Appear”) pursuant to Chapter 2.10, Appendix B (Directory), and Appendix F (Sample Cover Page) of the Board of Immigration Appeals Practice Manual. The Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-01-05. The decision to accept or deny a Request to Appear is within the sole discretion of the Board. Please see Chapter 2.10 of the Board Practice Manual.
Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-01-05. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider a brief that exceeds the scope of the amicus invitation.
Request for Case Information: Additional information about the case may be available. Please contact the Amicus Clerk by phone or mail (see contact information below) for this information prior to filing your Request to Appear and brief.
Page Limit: The Board asks that amicus curiae briefs be limited to 30 double-spaced pages.
Deadline: Please file a Request to Appear and brief with the Clerk’s Office at the address below by February 6, 2017. Your request must be received at the Clerk’s Office within the prescribed time limit. Motions to extend the time for filing a Request to Appear and brief are disfavored. The briefs or extension request must be RECEIVED at the Board on or before the due date. It is not sufficient simply
1
to mail the documents on time. We strongly urge the use of an overnight courier service to ensure the timely filing of your brief.
Service: Please mail three copies of your Request to Appear and brief to the Clerk’s Office at the address below. If the Clerk’s Office accepts your brief, it will then serve a copy on the parties and provide parties time to respond.
Joint Requests: The filing of parallel and identical or similarly worded briefs from multiple amici is disfavored. Rather, collaborating amici should submit a joint Request to Appear and brief. See generally Chapter 2.10 (Amicus Curiae).
Notice: A Request to Appear may be filed by an attorney, accredited representative, or an organization represented by an attorney registered to practice before the Board pursuant to 8 C.F.R. § 1292.1(f). A Request to Appear filed by a person specified under 8 U.S.C. § 1367(a)(1) will not be considered.
Attribution: Should the Board decide to publish a decision, the Board may, at its discretion, name up to three attorneys or representatives. If you wish a different set of three names or you have a preference on the order of the three names, please specify the three names in your Request to Appear and brief.
Clerk’s Office Contact and Filing Address:
To send by courier or overnight delivery service, or to deliver in person:
Amicus Clerk
Board of Immigration Appeals Clerk’s Office
5107 Leesburg Pike, Suite 2000 Falls Church, VA 22041 703-605-1007
Business hours: Monday through Friday, 8:00 a.m. to 4:30 p.m.
Fee: A fee is not required for the filing of a Request to Appear and amicus briefs.
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The key case to read is Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), where the Ninth Circuit rejected the BIA’s conclusion in Matter of Robles- Urrea, 24 I&N Dec. 22 (BIA 2006) that misprision of a felony is “categorically” a “crime involving moral turpitude” for removal purposes.
In simple terms, among other things, the BIA is now considering whether to “blow off” the reasoning of the Ninth Circuit in other circuits and adhere to its prior interpretation which the Ninth Circuit found to be wrong and which, of course, is must less favorable to respondents.
So, anybody who thinks that the BIA is about to “bark up the wrong tree” here (and, not for the first time, ignore the well reasoned decision of an Article III Court under the so-called “Chevron doctrine”) better get their group together and get crackin’ on a brief to convince the BIA that the Ninth Circuit got it right.
The deadline is February 6, 2017, (WARNING: The BIA seldom extends amicus deadlines) and everything you need to know about how to file the brief is in the BIA’s notice, reproduced above.
Here are links to Robles-Urrea v. Holder: https://casetext.com/case/roblesurrea-v-holder
and Matter of Robles: https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3542.pdf to help you get started.
Good luck!
PWS
01/06/17
“Albert F. Turner Jr., the son of civil rights activists who were prosecuted by Republican Sen. Jeff Sessions in a controversial voting fraud case 32 years ago, said Wednesday he supports the Alabama lawmaker’s nomination to be attorney general.
“My family and I have literally been on the front line of the fight for civil rights my whole life,” said Turner, a county commissioner in Perry County, Ala. “And while I respect the deeply held positions of other civil rights advocates who oppose Senator Sessions, I believe it is important for me to speak out with regard to Senator Sessions personally. . . . He is not a racist.”
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Another article in the Washington Post discusses positive aspects of Senator Session’s character and career. He appears to be someone who engenders strong feelings, both positive and negative.
But, unless something quite unexpected comes up during his confirmation hearing, Senator Sessions appears to be well on his way to confirmation as the next Attorney General.
Although most of the focus has been on Civil Rights, as Attorney General, Jeff Sessions’s most important and largely overlooked role probably will be his authority over the hugely important and highly troubled — to the tune of a stunning 530,000+ case backlog which continues to grow — United States Immigration Court System, with both trial and appellate branches administered by the DOJ through the Executive Office for Immigration Review (“EOIR”).
Although many experts have called for establishing a truly independent Immigration Court System outside of the DOJ, the current reality is that the DOJ controls perhaps the largest and most important Federal Court System. Whether as Attorney General Jeff Sessions nurtures, supports, and improves the independent due process mission of the Immigration Courts, or rather tries to undermine and “game” the Immigration Courts’ due process role, as some of his predecessors have done, will, to a much larger extent than most imagine, determine the future of our nation.
PWS
01/06/17
“The burden on judges could also increase, as dockets swell with more cases and those on the bench come under increasing pressure to render decisions.
“I see this as a pot that is going to boil over and scald everybody,” said Bruce Einhorn, a former immigration judge in Los Angeles. “I just don’t see pragmatically how you can almost double the number of cases without spending huge amounts of money to try to accommodate the dockets of the cases already on schedule and those that will be brought into the system.”
The backlog of cases is not new. It has steadily increased over the past decade — even as fewer immigrants have been apprehended along the Southwest border in recent years. In response, the Executive Office for Immigration Review, the agency that oversees the courts, has added more judges, including one to Los Angeles in November. It’s also prioritized juvenile cases in an effort to speed up cases of migrant youth.”
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The full article, at the link, contains a 9-minute audio segment. Does anyone seriously think that adding one Immigration Judge in Los Angeles or “prioritizing” juvenile cases will solve this mess?
Actually, the misguided prioritization of juvenile cases, many of them unrepresented, over longer pending cases of represented individuals is exactly the type of “Aimless Docket Reschuffling” that has created a practically insurmountable backlog in the Immigration Courts, notwithstanding a modest decline in new case receipts and a modest increase in resources. The inability of the DOJ and EOIR to establish an efficient merit hiring system for new Immigrstion Judges and poor planning for additional courtrooms to house new judges has also aggravated the problem.
PWS
01/05/17
Nolan Rappaport writes in The Hill:
“A few days after the Chicago City Council approved Mayor Emanuel’s Legal Protection Fund, Los Angeles officials announced that they had created a legal defense fund too. With help from philanthropists, Los Angeles established a $10 million fund to provide legal assistance for the city’s undocumented immigrants who are placed in removal proceedings.
These funds are an extension of their sanctuary city status to protect undocumented immigrants.
Chicago passed such an ordinance four years ago which provides that police can only give federal immigration officers information on undocumented immigrants that have arrest warrants out on them or are convicted criminals. This only applied to Chicago.
California, Connecticut, New Mexico, and Colorado have made their entire states immigrant sanctuaries.
Point No. 4 in President-Elect Trump’s 10-Point Plan to Put America First calls for an end to sanctuary cities, which presumably will be done by threatening to withhold federal funds from cities that refuse to cooperate with his administration’s enforcement program.
Mayor Emanuel’s Legal Protect Fund may be a more effective way to protect undocumented immigrants from deportation and it should avoid that threat.
The benefit of legal representation is illustrated by TRAC statistics which show that the likelihood of success with an asylum application is much higher with representation [chart omitted].”
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New York City has also done some outstanding work on providing representation to needy migrants in Immigration Court. In the full article, Nolan also points out that EOIR’s recently revised program for non-attorney Accredited Representatives — now administered by the Office of Legal Access Programs (“OLAP”) rather than the Board of Immigration Appeals (“BIA”) — presents important opportunities for improving and expanding pro bono representation.
Additionally, Professor Michele Pistone of Villanova Law School is developing a revolutionary “modular training program” for Accredited Representatives that could dramatically increase both the number and quality of those willing to serve nonprofit organizations in this currently underutilized capacity.
Looks like lots of creative thinking combined with effective action is going on among the members of the immigration pro bono community. Providing and facilitating representation is is probably the most important aspect of providing due process in Immigration Court. In stark contrast to these efforts by the non-Federal sector, the “prioritization” of cases of recently arrived families by the U.S. Department of Justice has seriously impeded due process in contravention of the mission and vision of the U.S. Immigration Courts.
PWS
01/06/17
http://www.cnn.com/2017/01/04/politics/donald-trump-immigration/index.html
A group of immigration experts on both sides of the issue interviewed by CNN all doubted that the Trump Administration would be able to carry out mass removals on the scale Trump alluded to on the campaign trail. Among the problems: Congressional funding for more enforcement and detention, severely backlogged U.S. Immigration Courts, practical problems of locating and processing undocumented individuals within the United States, and potential large scale resistance by states, cities, counties, and universities to overly aggressive enforcement efforts.
Here’s an excerpt (full article posted above):
“Mark Krikorian, executive director of the Center For Immigration Studies, a non-partisan think tank in Washington, said Trump’s campaign pledges to deport millions amounted to an “Archie Bunker moment” that should not have been taken seriously.
“He’s not going to be snapping his fingers and deporting millions of people over night,” said Krikorain, whose group’s motto is “Low-Immigration, pro-immigrant.”
“That’s not realistic,” Krikorian said. “No one thinks that’s going to happen.”
But Krikorian said “it’s very plausible” that Trump could ramp up deportations by 25% or more in 2017 and return to levels seen under Presidents Bill Clinton and George W. Bush, which he said reached about 400,000 a year when Bush left office.
That, he said, could be done without significant budgetary increases and despite resistance from sanctuary cities.
“I think the other side is making it seem more complicated than it needs to be,” he said.
Stephen Yale-Loehr, who teaches immigration law at Cornell Law School, agreed that Trump would be able to have meaningful impact during the first year of his presidency, but not to the extent suggested during the campaign.
“On the campaign trail things are not nuanced. They’re black and white,” Yale-Loehr said. “It takes a while to turn the battleship of bureaucracy around.”
PWS
01/04/17
“But as President-elect Donald J. Trump prepares to take office and promises to swiftly deport two million to three million undocumented immigrants who have committed crimes, bipartisan experts say they expect a return of the raids that rounded up thousands of workers at carwashes, meatpacking plants, fruit suppliers and their homes during the Bush years.
“If Trump seriously wants to step up dramatically the number of arrests, detentions and removals, I think he has to do workplace raids,” said Michael J. Wishnie, a professor at Yale Law School who represents detainees in civil rights cases.
Since the election, Mr. Trump has suggested that he plans to focus on deporting criminals. “What we are going to do is get the people that are criminal and have criminal records, gang members, drug dealers,” he told CBS News in November. “We’re getting them out of our country.”
But Mr. Trump’s advisers have said that to promptly reach his target number of deportations, the definition of who is a criminal would need to be broadened. In July 2015, the Migration Policy Institute, a bipartisan think tank, estimated that of the roughly 11 million immigrants living in the United States illegally, 820,000 had criminal records — a definition Mr. Obama mostly adhered to during his second term, evicting some 530,000 immigrants convicted of crimes since 2013.
Mr. Trump would need to expand the basket to include immigrants living in the United States illegally who have been charged but not convicted of crimes, those who have overstayed visas, those who have committed minor misdemeanors like traffic infractions, and those suspected of being gang members or drug dealers.
Targeting workers for immigration-related offenses, such as using a forged or stolen Social Security number or driver’s license, produced a significant uptick in deportations under Mr. Bush. But the practice was widely criticized for splitting up families, gutting businesses that relied on immigrant labor and taking aim at people who went to work every day, rather than dangerous criminals.”
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There is no statutory or other widely accepted definition of a “criminal alien.” As shown by this article in the NY Times, it could be narrow — covering only those who are actually removable from the United States by virtue of their crimes — or broad — covering anyone who has ever had contact with the criminal justice system and is potentially removable, regardless of whether there was a conviction or whether the crime itself is the ground for removal. For example, “driving with an expired license” is not a ground for removal. But, an undocumented individual arrested for “driving without a license” could be referred by the state or local authorities to the DHS to be placed in removal proceedings before a U.S. Immigration Judge. If the Immigration Judge finds that such an individual has no legal status in the United States, and that individual cannot establish that she or he is entitled to some type of relief from removal, the Immigration Judge must enter an order of removal, regardless of the circumstances of the arrest or the overall equities of the case.
PWS
01/04/17
http://immigrationimpact.com/2017/01/04/deportation-numbers-2016/
Joshua Breisblatt writes on Immigration Impact:
“Last week, the Department of Homeland Security (DHS) issued its Fiscal Year (FY) 2016 immigration enforcement data which, coupled with the previous years’ totals under the Obama Administration, show that the total number of removals from FY 2009 to FY 2016 totaled more than 2.7 million. Simply stated, President Obama has deported more people than any other president in U.S. history.
However, underneath those numbers belie some important lessons about the changing dynamics of who is showing up at the U.S. border and how a November 2014 enforcement priorities memo shaped the number of people deported from the interior of the nation.
. . . .
This means, more would-be-asylees are arriving at the U.S. border, rather than economic migrants as in years’ past. Yet, many are being denied asylum or put through expedited deportation processes, both unworthy of the nation’s commitment to protect those in need.
Also of note, the number of individuals picked up and deported from the interior of the country is on the decline, likely due to the 2014 enforcement priorities memo that sought to avoid deporting individuals who posed no threat and have strong economic and community ties in the U.S.”
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How much enforcement is enough? Never enough, according to some. Others disagree and think we’re going way overboard. As the Trump Administration is probably going to find out, “immigration enforcement” is more often than not a “can’t win” political proposition.
PWS
01/04/17
Dean Kevin Johnson over at ImmigrationProf Blog reports that former AG Eric Holder has landed a “biggie” client, the State of California:
“As the Los Angeles Times reports, the California Legislature has tapped former U.S. Atty. Gen. Eric Holder Jr. to serve as outside counsel to guide the state’s legal strategy against Trump’s administration. “He will be our lead litigator, and he will have a legal team of expert lawyers on the issues of climate change, women and civil rights, the environment, immigration, voting rights — to name just a few,” Senate leader Kevin de León (D-Los Angeles) said. The leadership of the California Legislature has expressed opposition to President-elect Trump’s campaign positions on immigration.”
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Ah, there is “life after the DOJ,” for all of us!
PWS
01/04/17
“No,” says Professor and Immigration Practitioner Kari Hong of Boston College Law School in this op-ed in the Washington Post:
“If Trump truly wants to focus on drug dealers, terrorists, murderers and rapists, he should call on Congress to restore immigration law’s focus on those whom prosecutors and criminal judges determined were dangerous in the first place — people who were sentenced to five years or more in prison. That’s what the law used to be, before it was changed in 1996 to cover many more crimes.
Instead of penalizing immigrants for minor crimes, immigration law needs to separate contributing immigrants from their non-contributing peers. Those who pay taxes, have children born in the United States, serve in the military, work in jobs American citizens will not take or help those around them need a path to legalization. Those who cause more harm than good should be deported. Restoring proportionality and common sense to immigration law would certainly help make America great again.”
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Go over to ImmigrationProf Blog and the Washington Post at the above link and get the whole story.
PWS
01/04/17
“J. Gerald Hebert is director of the Voting Rights and Redistricting Program at the Campaign Legal Center. Joseph D. Rich is co-director of the Fair Housing and Community Development Project at the Lawyers’ Committee for Civil Rights Under Law. William Yeomans is a fellow in law and government at American University’s Washington College of Law; on Election Day, he worked as a voter protection legal volunteer for the Democratic Party of Virginia.”
All three of the authors worked for the Civil Rights Division of the U.S. Department of Justice during Senator Session’s tenure as U.S. Attorney in Alabama. Here’s part of what they have to say about the Senator’s claim to have supported important civil rights prosecutions:
“Sessions has not worked to protect civil rights. He worked against civil rights at every turn. Sessions knows that his real record on race and civil rights is harmful to his chances for confirmation. So he has made up a fake one. But many of us who were there — in Alabama in the 1980s, 1990s and beyond — are still around. We lived that story, too. And we are here to testify that Sessions has done many things throughout his 40-year career. Protecting civil rights has not been one of them.”
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Read the full op-ed from the Washington Post at the link.
PWS
01/04/17
http://www.nytimes.com/2017/01/03/us/naacp-occupy-jeff-sessions-office.html
I’m not aware that any Senator of either party has expressed an inclination to vote against Senator Sessions’s confirmation.
PWS
01/03/17
https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2016/12/31/let-39-s-close-out-2016-with-a-posner-dissent-chavarria-reyes-v-lynch.aspx?Redirected=true
“POSNER, Circuit Judge, dissenting. This case involves a typical botch by an immigration judge. No surprise: the Im‐ migration Court, though lodged in the Justice Department, is the least competent federal agency, though in fairness it may well owe its dismal status to its severe underfunding by Congress, which has resulted in a shortage of immigration judges that has subjected them to crushing workloads. See, e.g., Julia Preston, “Deluged Immigration Courts, Where Cases Stall for Years, Begin to Buckle,” NY Times, Dec. 1, 2016, www.nytimes.com/2016/12/01/us/deluged‐immigratio n‐courts‐where‐cases‐stall‐for‐years‐begin‐to‐buckle.html?_r =0 (visited Dec. 30, 2016).”
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Go on over to Dan Kowalski on LexisNexis Immigration Community and read the full opinion and Judge P’s full dissent in Chavarria-Reyes v. Lynch.
Also, read Julia Preston’s article in the NY Times, cited by Judge Posner, quoting (and picturing) me here:
PWS
01/02/17
“There already are 84 vacancies at the district level Roberts was writing about, with about another dozen openings expected early in the year.
There are 673 district judgeships authored by Congress around the nation, and Roberts said they are aided by more than 500 senior district judges, who are eligible for retirement with full pay but still continue to work part time.
“Unlike politicians, they work largely outside of the public eye,” Roberts wrote. The typical judge has a docket of about 500 cases, he said, and is responsible for all aspects of moving a lawsuit toward resolution.
“The judge must have mastery of the complex rules of procedure and evidence and be able to apply those rules to the nuances of a unique controversy,” he wrote. “As the singular authority on the bench, he must respond to every detail of an unscripted proceeding, tempering firm and decisive judgment with objectivity, insight, and compassion. This is no job for impulsive, timid, or inattentive souls.”
The most challenging part of the job is sentencing those found guilty of a criminal offense, Roberts wrote, balancing the perspectives of prosecutor, defendant and victim and guided by legislative directive and sentencing guidelines.”
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Wow! 500 case dockets! The “average” U.S. Immigration Judge handles a docket approaching 2,000 cases, almost four times the average for a U.S. District Judge. At the time I retired from the U.S. Immigration Court at Arlington, VA on June 30, 2016, the two of us assigned to so-called “non-priority dockets” (everything except detained, juveniles, and recently arrived “adults with children”) each had more than 5,000 assigned cases — ten times more than a U.S. District Judge!
Notably, notwithstanding “docket chaos” which has sent the backlog of pending cases soaring to more than one-half million, the Department of Justice and the Executive Office for Immigration Review, which administer the Immigration Courts, have failed to establish a “Senior Judge” program like that which assists U.S. District Judges. Moreover, they have never implemented a Congressionally-enacted program for “phased retirement” and mentoring by Immigration Judges (or anyone else, for that matter). Consequently, the literally centuries of judicial experience and expertise that retiring “baby boomer” judges have gained is completely lost to the over-strapped Immigration Court System.
And, it’s not that the role of a U.S. Immigration Judge is noticeably less significant than that of a U.S. District Judge. Chief Justice Roberts describes the difficulties of sentencing, which is certainly quite similar to, and no less gut-wrenching, than the decisions about people’s lives, future, and freedom that Immigration Judges make on a daily basis.
For a wonderful recent description of what the daily life of a U.S. Immigration Judge is like, go over to USA Today and read this first-hand account by Hon. Thomas G. Snow, my former colleague at the Arlington Immigration Court. Judge Snow is widely respected and admired as “one of the best.” Here’s the link:
Happy New Year 2017,
PWS
01/01/17
“Immigration advocates have repeatedly criticized the Obama administration for its increased reliance on detention facilities, particularly for Central American families, who they argue should be treated as refugees fleeing violent home countries rather than as priorities for deportation.
They also say that the growing number of apprehended migrants on the border, as reflected in the new Homeland Security figures, indicate that home raids and detentions of families from Central America isn’t working as a deterrent.”
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The “enforcement only” approach to forced migration from Central America has been an extraordinarily expensive total failure. But, the misguided attempt to “prioritize” cases of families seeking refuge from violence has been a major contributing factor in creating docket disfunction (“Aimless Docket Reshuffling”) in the United States Immigration Courts. And, as a result, cases ready for trial that should have been heard as scheduled in Immigration Court have been “orbited” to the end of the docket where it is doubtful they ever will be reached. When political officials, who don’t understand the Immigration Court and are not committed to its due process mission, order the rearrangement of existing dockets without input from the trial judges, lawyers, court administrators, and members of the public who are most affected, only bad things can happen. And, they have!
PWS
12/31/16