"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Here’s a report on the night’s activities from AYUDAS’s amazing Executive Director Paula Fitzgerald:
Dear Friends,
I hope you enjoyed our screening of The Courtroom as much as I did. The panel discussion connected us back to Ayuda’s mission and the greatest challenges our clients face as they navigate the legal system in an unfamiliar language.
I want to give a big thanks some special supporters who make this evening possible:
A special thank you to Georgetown University’s Community Engagement Manager and Ayuda’s Advisory Board Member, Erick Castro, for coordinating this reception and film screening, as well as Georgetown University for hosting this event in their new Capitol Campus building.
We’re honored to have had Waterwell Productions with us, specifically Co-Founder & Board Chair Arian Moayed and Managing Director Sarah Scafidi. Thank you for sharing this powerful story with Ayuda’s community.
Thank you to the Honorable Paul Schmidt for helping us bring The Courtroom to DC and sharing your connection to the film.
A moment of appreciation for our stellar panelists, Edgar and Marilyn, and wonderful moderator, Sandra. Thank you all for closing out the evening with an engaging conversation.
A warm round of applause to each of you for joining us. It was truly a delightful evening and I’m so glad to have had the opportunity to connect with many of you.
Are you interested in learning more about Ayuda’s advocacy program? Email us at advocacy@ayuda.com. Are you interested in volunteering? Check out our volunteer portal for current opportunities. Are you interested in making a gift to support Ayuda’s mission? Visit our website or email us atdevelopment@ayuda.com.
AYUDA/GEORGETOWN “THE COURTROOM”
Warm regards,
Paula Fitzgerald
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Here’s the text of my opening remarks:
Ayuda’s Film Screening of The Courtroom – Opening Remarks by Paul Wickham Schmidt
Georgetown University, McCourt School of Public Policy
September 18, 2024
Good evening and welcome everyone! Thanks for coming out to support Georgetown’s partnership with Ayuda.
My name is Paul Wickham Schmidt, and I’ve been given the privilege to introduce this powerful film, The Courtroom. Before I introduce a special guest, who is no stranger to the film and silver screen, I would like to share why this story is so important to me. My experience has landed me in an interesting corner of many of tonight’s themes and key players in making this event possible.
I was appointed as a federal immigration judge and served for 21 years, at both the trial and appellate levels. During my time as an adjunct professor at Georgetown Law, I’ve written extensively about immigration law. And, I’m currently a proud Advisory Board member for Ayuda, an organization that I truly care about and has deep roots in this community.
In fact, Ayuda helped all of us during my tenure in the “Legacy” Arlington Immigration Court with their superior pro bono representation. You will witness this evening the critical, life-saving and future-determining, role played by great legal representation in Immigration Court.
And, if you don’t already know, you will be astounded to learn that in Immigration Court individuals, including infants and toddlers, face trial for their lives without the right to appointed counsel! I want you to imagine how this case might have come out if this individual had been required to represent herself throughout her various legal proceedings. Yet, that is the predicament in which far, far too many individuals now find themselves.
I just read a TRAC Syracuse report that fewer than 15% of those ordered deported in Immigration Court in August 2024 were represented. I find that appalling! It’s actually a regressive trend since I left the bench. That’s why the role played by organizations like Ayuda and the teaching function of the CALS Asylum Clinic here at Georgetown Law are so completely essential to American Justice at what I call the “retail level.”
Now, I’m not here to read my resume. Instead, I will share why The Courtroom holds so much significance for us. The late film critic Roger Ebert once said, “the movies are like a machine that generates empathy.” The classic legal dramas like “12 Angry Men,” or “To Kill A Mockingbird,” for example, give us great insight into the devastating experience of being tried for a crime one did not commit.
But never had I seen a filmmaker put the empathy machine to work in Immigration Court. That is, until I learned about The Courtroom from my friend and colleague retired Immigration Judge Jeffrey S. Chase of New York. He actually served as an informal advisor on the production and played an important “cameo role” in the earlier award-winning stage versions of The Courtroom, as did other of our retired judicial colleagues.
Many of us will be fortunate enough never to have to endure a removal proceeding as a subject ourselves. We will never understand what it’s like to face the fear of being separated from our children, our families, our jobs, and our communities: In the words of the Supreme Court “all that makes life worth living!” (Ng Fung Ho v. White | 259 U.S. 276 (1922)).
The film you’re about to watch tells one woman’s story confronting these terrors, with the utmost compassion. The “script” is a verbatim transcript of an actual immigration case, brought to life by the great actors, directors, and producers at Waterwell.
When the credits roll, I hope you’ll remember that The Courtroom is much more than a story. It’s real-life drama, “living theater” as I used to describe it to my Georgetown Law students – and right now, more than 3 million immigrants undergoing deportation proceedings are living it, along with their families, friends, co-workers, and other community members whom they interact with on a daily basis.
It’s with great honor that I get the opportunity to introduce our next speaker. He’s an actor, director, and the screenplay writer of our feature presentation. He has received two Tony Award nominations and two Primetime Emmy Award nominations, and you might recognize him from Marvel Cinematic Universe. Please give a warm round of applause for Waterwell Co-Founder, Arian Moayed!
Arian, I really, really appreciate your taking time out of your hectic schedule to be with us tonight for this important D.C. Area premiere!
Well, friends, since “inception” on December 22, 2016:
Neatly 7 1/2 years elapsed;
Three different Administrations;
5,526 posts (including this one);
1,152 comments;
43 “Pages;”
403 subscribers;
Over 1,000,000 “views” (estimated);
More than 140,400 “blocks” by my hard-working “spam catcher!”
It’s time for me to take a break from Courtside to “rest, refresh, and refocus” as they say in the “sabbatical business.” After all, I’ve been “retired” since June 30, 2016, going on eight years!
To mark the occasion, here’s a “reprint” of one of my favorites from that first month, December 2016:
“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
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True today as it was then!
🇺🇸 Thanks for reading and engaging, best wishes and, of course, “Due Process Forever!”
Professor Benitez’s colleague Professor Paulina Vera reports on LinkedIn:
Finally don’t have to keep this a secret anymore! I nominated Professor Benitez because he’s the best boss and mentor and he deserves all the recognition for his contributions to clinical education and immigration law. I’m glad AILA agreed!
Since choice of law is dependent on venue in Immigration Court proceedings, the controlling circuit law is not affected by a change in the administrative control court and will only change upon the granting of a motion to change venue. Matter of Garcia, 28 I&N Dec. 693 (BIA 2023), followed.
“In a decision dated October 24, 2023, the Immigration Judge denied the respondent’s application for deferral of removal under the regulations implementing the Convention Against Torture (“CAT”). The respondent, a native and citizen of Morocco, has appealed that decision. The Department of Homeland Security (“DHS”) has not responded to the appeal. Because we agree with the respondent that additional fact-finding and analysis are needed and the Immigration Judge misapplied choice of law precedent, we will remand these proceedings for the entry of a new decision. … The record reflects that the respondent has been detained at the Moshannon Valley Processing Center (“Moshannon”) in Philipsburg, Pennsylvania, throughout these proceedings. The proceedings commenced with the filing of a Notice to Appear (“NTA”) on April 18, 2023, at the Cleveland, Ohio Immigration Court, which is within the jurisdiction of the United States Court of Appeals for the Sixth Circuit. … After the respondent’s individual hearing on October 20, 2023, the Immigration Judge applied Third Circuit law and denied deferral of removal under CAT. … The respondent argues that the Immigration Judge erroneously applied Third Circuit law rather than Sixth Circuit law. We review this issue de novo. See 8 C.F.R. § 1003.1(d)(3)(ii) (2020). For the reasons discussed below, we agree with the respondent that the Immigration Judge applied the incorrect circuit’s law. … On remand, the Immigration Judge should reevaluate the respondent’s claim under Sixth Circuit law and apply relevant Board precedent, with consideration to the respondent’s appellate arguments concerning the respondent’s gender identity and sexual orientation. See Matter of C-G-T-, 28 I&N Dec. 740, 745 (BIA 2023) (explaining that “when considering future harm, adjudicators should not expect a respondent to hide” the respondent’s sexual orientation).”
Great job, Jennifer! Once again, it’s worth asking ourselves how successful arguments of this kind could ever be made by an unrepresented respondent. If, as is painfully obvious to even a casual observer, the answer is “they couldn’t,” then where is the due process in an overloaded, corner-cutting court system where lack of representation is actually on the increase, despite truly heroic efforts by the private and pro bono bars?
I also find the last sentence of the above summary very helpful. While it certainly states the correct rule regarding sexual orientation cases, my sense is that this part of the Matter of C-G-T- precedent is often ignored at the Immigration Court level and not always corrected by the BIA on appeal. So, it’s certainly worth re-emphasizing!
The BIA’s opinion was written by Appellate Immigration Judge Gorman for a panel that also included Appellate Immigration Judge Greer and Temporary Appellate IJ Crossett.
(CNN) — Some of Sebastian Corral’s memories have faded. But the 91-year-old remembers his 1953 arrival in the US as if it were yesterday.
How workers like him were forced to strip naked and sprayed with insecticide.
How their hands were inspected to make sure they were qualified for the hard labor that awaited them.
How unwelcome he and so many others felt even though they’d been invited across the border by the US government.
“You felt humiliated. You felt like you were nothing, even though you’d come to work and lift yourself up,” Corral told CNN in a recent interview via Zoom from his home in Vado, New Mexico.
Memories of those first moments in America came rushing back for Corral this month during a dramatically different visit to the place where he took his first steps in the country more than 70 years ago.
This time, officials were unveiling plaques designating the former Rio Vista Bracero Reception Center in Socorro, Texas, as a National Historic Landmark. And Corral was a guest of honor.
. . . .
Today, he describes the long journey that began at Rio Vista with pride:
“I came as a bracero. After being a bracero, then I was illegal for some years. After being illegal, then I was a permanent resident. Now I am a citizen.”
In some ways, Rio Vista wasn’t like Corral remembered when he returned this month. The buildings were more worn-down — some “pure ruins,” Corral says. But what Corral noticed most wasn’t the buildings; it was how differently he felt being there.
“I was not the same person as before,” he says.
So much had changed since those first days when he was a young man waiting for a rancher to arrive at Rio Vista with work.
He’d harvested cotton, and driven tractors, and picked beets and cucumbers as a bracero. He’d lived in New Mexico, Colorado, Wyoming and Texas during his years in the program. Once, an El Paso restaurant had refused to serve him because he was Mexican. He’d been an undocumented immigrant for decades. He’d washed dishes and prepped food in a Los Angeles restaurant. He’d worked at dairy farms in California. He’d become a legal resident after President Reagan signed a law granting him and millions of others amnesty. He’d finally brought his wife and children to the US after years of separation. He’d saved enough money to buy land for all of them to build homes nearby. He’d had 14 grandchildren and 17 great-grandchildren.
And just two years ago, he’d finally become a US citizen after decades of knowing he was American, nearly 70 years after his first arrival in the United States.
All of this went through Corral’s mind as he revisited Rio Vista on May 11. And in the mix of emotions that hit him, he felt anger at some points, but also, contentment.
Some of the buildings around him were in ruins as they awaited renovation. But Corral was standing in the Rio Vista courtyard with generations of his family beside him.
And he saw something else: the life that he built.
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Read the complete story at the link.
The thing that stands out time after time: The strength, character, and triumph of individual immigrants over laws and actions often intended to exploit, dehumanize, and/or discourage them!
The 1924 Immigration Act vilified, dehumanized, and barred many of those immigrants who have made America great, like Italian Americans being demeaned in this cartoon. Yet, some descendants of those unfairly targeted appear oblivious to the mistakes of the past and willing to inflict the same immoral lies, harm, and suffering on today’s migrants. IMAGE: Public RealmEduardo Porter Columnist and Editorial Board Member Washington Post PHOTO: WashPost
“I think that we have sufficient stock in America now for us to shut the door.”
That sounds like Donald Trump, right? Maybe on one of his campaign stops? It certainly fits the mood of the country. This year, immigration became voters’ “most important problem” in Gallup polling for the first time since Central Americans flocked to the border in 2019. More than half of Americans perceive immigrants crossing the border illegally as a “critical threat.”
Yet the sentiment expressed above is almost exactly 100 years old. It was uttered by Sen. Ellison DuRant Smith, a South Carolina Democrat, on April 9, 1924. And it helped set the stage for a historic change in U.S. immigration law, which imposed strict national quotas for newcomers that would shape the United States’ ethnic makeup for decades to come.
. . . .
The renewed backlash against immigration has little to offer the American project, though. Closing the door to new Americans would be hardly desirable, a blow to one of the nation’s greatest sources of dynamism. Raw data confirms how immigrants are adding to the nation’s economic growth, even while helping keep a lid on inflation.
Anyway, that horse left the stable. The United States is full of immigrants from, in Trump’s memorable words, “s—hole countries.” The project to set this in reverse is a fool’s errand. The 1924 Johnson-Reed immigration law might have succeeded in curtailing immigration. But the restrictions did not hold. From Presidents Johnson to Trump, efforts to circle the wagons around some ancestral White American identity failed.
We are extremely lucky it did. Contra Sen. Ellison DuRant Smith’s 100-year old prescriptions, the nation owes what greatness it has to the many different women and men it has drawn from around the world to build their futures. This requires a different conversation — one that doesn’t feature mass expulsions and concentration camps but focuses on constructing a new shared American identity that fits everyone, including the many more immigrants who will arrive from the Global South for years to come.
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Gordon F. Sander Journalist and Historian PHOTO: www.gordonsander.com
Gordon F. Sander, journalist and historian, also writes in WashPost, perhaps somewhat less optimistically, but with the same historical truth in the face of current political lies and gross misrepresentations:
Johnson and Reed were in a triumphant mood on the eve of their bill’s enactment. “America of the melting pot will no longer be necessary,” Reed wrote in the Times. He remarked on the new law’s impact: “It will mean a more homogenous nation, more self-reliant, more independent and more closely knit by common properties and common faith.”
The law immediately had its intended effect. In 1921, more than 200,000 Italians arrived at Ellis Island. In 1925, following the bill’s enactment, barely 6,000 Italians were permitted entry.
But there were less intended consequences, too, including on U.S. foreign relations. Although Reed insisted there was nothing personal about the act’s exclusion of Japanese people, the Japanese government took strong exception, leading to an increase in tensions between the two countries. There were riots in Tokyo. The road to Pearl Harbor was laid.
During the 1930s, after the eugenics-driven Nazis seized control of Germany, the quotas established by the act helped close the door to European Jews and others fleeing fascism.
At the same time, the law also inspired a small but determined group of opponents led by Rep. Emanuel Celler (D-N.Y.), who were committed to overturning it. Celler’s half-century-long campaign finally paid off in 1965 at the Statue of Liberty when, as Celler looked on, President Lyndon B. Johnson signed the Immigration and Nationality Act, which ended national origin quotas.
But with anti-immigration sentiment on the rise and quotas once again on the table, it’s clear that a century after its enactment, the ghost of Johnson-Reed isn’t completely gone.
Gordon F. Sander is a journalist and historian based in Riga, Latvia. He is the author of “The Frank Family That Survived: A 20th Century Odyssey” and other books
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Many thanks to my friend and immigration maven Deb Sanders for alerting me to the Sander article. I strongly urge everyone to read both pieces at the links above.
Perhaps the most poignant comment I’ve received about these articles is from American educator, expert, author, and “practical scholar” Susan Gzesh:
And because of the 1924 Act, my grandparents lost dozens of their siblings, parents, aunts, uncles, nieces, and nephews to the Holocaust in the 1940s because Eastern European Jewish immigration to the US had been cut off. They would have been capable of sponsoring more family to come to the US in the late 1920s and 30s, but there was no quota for them.
I have no words to describe my feelings about so-called experts who would praise the 1924 Act. I know that Asian Americans must feel similarly to my sentiments.
Well said, Susan!
Susan Gzesh American scholar, educator, expert, author PHOTO: U. Of Chicago
I’ll leave it at that, for you to ponder the next time you hear Trump, DeSantis, Abbott, and the like fear-monger about the bogus “invasion,” spout “replacement theory,” and extoll the virtues of extralegal cruelties and dehumanization inflicted upon “the other” — typically the most vulnerable who areseeking our legal protection and appealing to our senses of justice and human dignity! And, also you can consider this when the so called “mainstream media” pander to these lies by uncritically presenting them as “the other side,” thereby echoing “alternative facts!”
It’s also worth remembering this when you hear Biden, Harris, Schumer, Murphy, and other weak-kneed Dem politicos who should know better adopt Trumpist White Nationalist proposals and falsely present them as “realistic compromises” — as opposed to what they really are —tragic acts of political and moral cowardice!
Eventually, as both of the above articles point out, America largely persevered and prospered over its demons of racism, anti-Catholicism, and anti-immigrant nationalism. But, it would be wrong to view this “long arc” analysis as “zeroing out” the sins and horrors of our past.
Susan Gzesh’s relatives died, some horribly and painfully, before their time. That can’t be changed by future progress. Nor can the children they might have had or the achievements they never got to make to our nation and the world be resurrected.
As Susan mentions, the 1924 Act also reinforced long-standing racism and xenophobia against Asian Americans that led to the irreversible harm inflicted by the internment of Japanese American citizens, continuing Chinese Exclusion, and a host of state laws targeting the Asian population and making their lives miserable. Belated recognition of the wrongfulness and immorality of these reprehensible laws and actions does nothing for their past victims.
Many Irish, Italian, and other Catholics and their cherished institutions died, lost property, or were permanently displaced by widespread anti-Catholic riots brought on and fanned by the very type of biased and ignorant thinking that undergirded Johnson-Reed. They can’t be brought back to life and their property restored just by a “magic wave of the historical wand.”
U.S. citizens of Mexican-American heritage were deported and dispossessed, some from property their ancestors had owned long before there was even a United States. Apologizing to their descendants and acknowledging our mistakes as a nation won’t eliminate the injustices done them — ones that they took to their graves!
Despite the “lessons of the Holocaust,” America continues to struggle with anti-Semitism and anti-Islamic phobias and indifference to human suffering beyond our borders.
And, of course, the poisonous adverse impacts of slavery on our nation and our African-American compatriots continue to haunt and influence us despite disingenuous claims to the contrary.
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
My friends immigration experts Dan Kowalski and Hon. Jeffrey Chase also had some “choice words” for the “false scholars” who extol the fabricated “benefits” of White Nationalism and racism embodied in “laws” that contravened the very meaning of “with liberty and justice for all” — something to reflect upon this Memorial Day. See https://dankowalski.substack.com/p/true-colors.
Thank you, Dan! In memory of my Gzesh, Wolfson, Kronenberg, and Kissilove relatives who were victims of the Holocaust – after their U.S.-based relatives failed to get visas for them.
Heed the lessons of history, enshrine tolerance, honor diversity, and “improve on past performance!”We have a choice as to whether or not to repeat the mistakes of the past — to regress to a darker age or move forward to a brighter future for all!Make the right one!
Immigration law and policy are very complex, and truly boring for everyone except those who have to deal with them. But we live in an instant gratification, fast food culture. Immigration is a Hot Topic, folks want a Solution Now, so journalists naturally write about it…some better than others.
David Leonhardt, a senior writer at the New York Times, is a smart fellow who has won awards. But his “wheelhouse,” as the kids say, is mostly business and economics. I wish he (and/or his editors…where were they?) had consulted a panel of experts before hitting “send” on this piece.
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Now, I’m not an expert, but I did practice immigration law for almost 40 years, and today my social media feeds and email listservs are burning up with negative reactions to Leonhardt’s piece from true immigration experts.
Responding to every one of the problems in the piece would make this post too long, and would put you to sleep rather quickly, so I’ll touch on just a few highlights that really chapped my professional hide.
First, Leonhardt said, “Biden … changed the definition of asylum to include fear of gang violence.” That is simply false. The definition of who qualifies for asylum is based on the “refugee” definition, is fixed by statute, and only Congress can change that. Congress did NOT make any such change, and neither Biden nor any president could. Fear of gang violence as a basis for an asylum claim is a continuing subject of litigation at the Board of Immigration Appeals and in the federal courts, but the statute remains unchanged.
Second, Leonhardt states that Biden could have issued executive orders to mitigate the situation at the border. Oh, but “Yes, federal judges might block some of these policies… .” Maybe because they are illegal orders? No matter, “sending a message” is more important than legality.
Third, on the matter of admission into the U.S. via “parole,” Leonhardt implies that Biden expanded the use of parole beyond its “case-by-case” legal limits. Maybe Leonhardt did not know that “parole was … used to resettle over 360,000 Indochinese refugees between 1975 and mid-1980” and that “[b]etween 1962 and the end of May 1979, over 690,000 Cuban nationals were paroled into the country, “the largest number of refugees from a single nationality ever accepted into the United States.” ” – Amicus brief submitted to the Supreme Court in Clark v. Martinez.
Finally, the overall thrust of Leonhardt’s piece seems to be that the border is a “problem” that can and should be “solved” by some combination of legal and physical deterrents. This is a misperception common to educated elites as well as regular folks, and it is based on an ignorance of the full panoply of historical, economic, geographic and political forces that combine to make true border “control” a fantasy. Go to the border, look at the miles of desert, mountain and river and you will conclude that border walls are nothing more than a contractor’s financial wet dream. Talk to a woman from Central America who has risked everything to come here and you will conclude that no laws, no walls, no “message” would have deterred her.
I usually ignore much of what the MSM publishes about immigration, but the Times and Leonhardt carry a certain weight, so here I am, typing away. You’re welcome.
[The Comments are open, so fire away!]
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Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings Law
Here’s the letter that Professor Karen Musalo, Director of the Center for Gender & Refugee Studies at Hastings Law wrote to the NYT:
Before David Leonhardt writes another piece on immigration, he should make sure he has his facts straight. He erroneously claims Biden “changed the definition of asylum to include fear of gang violence.” Biden did no such thing. What his Justice Department did was overturn a Trump-era ruling attempting to foreclose asylum claims by victims of domestic and gang violence, regardless of their legal merits. That decision was widely criticized, including on your pages in an op-ed I co-authored with Jane Fonda. Attorney General Garland rightfully vacated it, leaving the issue to be resolved by regulations [which to date have not been issued].
Leonhardt is incorrect in his assertion that more “aggressive” moves will mitigate challenges at the border, or score points with voters who overwhelmingly opposecruel and exclusionary policies. The Senate bill touted as a step in the right direction would have codified failed policies that only create more chaos.
Executive actions reportedly under consideration would similarly exacerbate operational challenges and inevitably get tied up in litigation.
And yes, Republicans’ sabotage of the bill was “transparently cynical.” Just as cynical, however, was the president’s choice to back anti-immigrant legislation he knew was doomed. In their attempts to out-Trump Trump, the president and his allies have betrayed their values and the voters who put them in office.
Karen Musalo
San Francisco, CA
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Thanks, Dan and Karen! Turning Leonhardt loose on a subject he’s obviously unqualified to write about — “stunning ignorance” in the words of one world-renowned expert — is nothing short of journalistic malpractice on the part of the NYT!
Immigration is a serious topic with life or death implications for migrants and the future of our nation. It deserves serious, informed, professional journalism by experts who are familiar with the plight of forced migrants and the actual legal requirements for asylum and due process as well as the realities of the border and the anti-immigrant absurdities of our dysfunctional Immigration Courts and non-legally-compliant asylum adjudication system.
There are lots of well-qualified folks around who could inform the public. Needless to say Leonhardt is not one of them. Unhappily, few “mainstream media” journalists have the necessary creds. That’s one reason the toxic national debate is so dominated by right wing White Nationalist media spreading lies and myths with little critical pushback from the “MSM.”
Rachel Siegel Economics Reporter Washington Post PHOTO: WashPost
Ironically, the same day’s Washington Post had an article by Rachel Siegel about how robust immigration of all types has saved the U.S. economy and how many economists believe Trump’s mindless, restrictionist, and likely illegal nativist policies could slow growth, devastate the U.S. workforce, and exacerbate inflation! https://www.washingtonpost.com/business/2024/05/20/trump-immigration-undocumented-economy/. At the same time, he would create chaos and waste billions in public funds.
Recently, I publisheda number of articles by experts debunking many of the very anti-immigrant myths that Leonhardt disingenuously repeats or enables:
In one of many bad moments, Leonhardt uncritically “parrots” the oft-debunked fiction that changes in U.S. immigration policies and “deterrents” like walls, detention, and racially-driven cruelty are primary long-term “drivers” of forced human migration. Undoubtedly, in the complex interrelated world of migration, such policies do have some fairly marginal, largely short-term effects, causing changes in migration paths, adjustments in smuggling methods, changes in smuggling fees, more deaths and unreported irregular entries (when enforcement “gimmicks” are irresponsibly expanded), and enough “statistical variance” to allow proponents of these futile policies to falsely claim “victory” before the system reverts to a new “equilibrium.”
But the truth is inescapable, even if inconvenient for Leonhardt and other dilettantes: Human migration is a complex worldwide phenomenon driven by forces beyond the ability of any single nation, even one as powerful and influential as the U.S., to control by harsh deterrence and restriction, no matter how cruel, deadly, and wasteful.See, e.g., https://immigrationcourtside.com/wp-admin/about.php (“Migrants will continue to flee bombs, look for better-paying jobs and accept extraordinary risks as the price of providing a better life for their children. . . .No wall, sheriff or headscarf law would have prevented [forced migrants] from leaving their homes.”).
As cogently stated by Robert McKee Irwin, an immigration scholar at U.C. Davis:
Leonhardt also suggests, quite incorrectly, that Biden’s (limited) attempts to increase pathways for legal immigration and return to the rule of law at the border somehow benefitted and encouraged smugglers and cartels. NOTHING could be more wrong-headed!
It is Trump and his restrictionist allies and enablers who have been a huge boon for human smugglers! As legal pathways are eliminated or unreasonably restricted, the entire “protection” system falls into the hands of smugglers and other trans-border criminal organizations who become “the only game in town” for those seeking protection! Smuggling prices go up and the risks to migrants increase, even as profit margins for the smugglers skyrocket! Equally bad, law enforcement is diverted from real criminals to playing a bogus “numbers game” at the expense of those who seek only to have their life-determining claims heard fairly, timely, and humanely in accordance with the rule of law!
If our country builds a fair, timely, and humane system for considering asylum claims, something that succeeding Administrations have shamefully eschewed, the majority of asylum applicants will use it, which at the same time would allow border law enforcement to focus on real security issues rather than contrived ones. Similarly, more realistic and robust paths for legal immigration, both temporary and long term, will reduce the pressure and incentives for irregular migration. These measures would also tap into the truth about migration being ignored by politicos of both parties:
These [restrictionist] political reactions fail to grapple with a hard truth: in the long run, new migration is nearly always a boon to host countries. In acting as entrepreneurs and innovators, and by providing inexpensive labor, immigrants overwhelmingly repay in long-term economic contributions what they use in short-term social services, studies show. But to maximize that future good, governments must act -rationally to establish humane policies and adequately fund an immigration system equipped to handle an influx of newcomers.
Notably, the Biden parole program criticized by Leonhardt not only has been upheld in Federal Court, but has generally been praised and recognized by experts as a great, largely under appreciated, success in both creating an orderly process and reducing border pressures while benefitting American families and fueling our economy. See, e.g., https://www.fwd.us/news/chnv-parole/. (I’ll admit to not initially being a “fan,” but hey, results matter so I’ve come around). The most legitimate criticism is that it has been too limited both in terms of numbers and nationality restrictions!
Bad journalism promoting myths like those spouted by Leonhard misleads the public and enables politicos to get away with policies that are not only illegal, but often harm and even kill the very vulnerable migrants we are supposed to be protecting, or at the very least treating with fairness, respect, and human dignity. America and the migrants who still (against the odds) see us as a beacon of hope in a cruel world deserve better from the NYT!
Judge Lister also has a plan to donate patented “healthy, sustainable textile technology” developed during the pandemic that could be used to create good jobs in Mexico and other countries beyond our borders.
Professor Michele Pistone at Villanova Law has developed a “scalable” online training course (“VIISTA Villanova”) that is currently being used to graduate more highly-qualified non-lawyer “Accredited Representatives” to close the burgeoning and critical representation gap in Immigration Court, thus “delivering due process with efficiency.” She believes that with more funding, this program could be “ramped up” to produce 10,000 new Accredited Representatives annually! See, e.g., https://www1.villanova.edu/university/professional-studies/academics/professional-education/viista.html.
With so many brilliant, informed, and involved experts out here, with creative positive ideas for improving immigrant justice and restoring the rule of law, it is very disappointing that the NYT and Leonhardt have chosen to uncritically recycle and repeat cruel, failed, legally problematic proposals by irresponsible politicos that would make things worse. Rather, the media should be consulting the experts actually involved in immigration at the “grass roots level” and pressing politicos on both sides of the aisle and the Administration as to why they aren’t concentrating and investing in humane potential solutions rather than deadly and discredited “deterrence through cruelty!”
As Erica Bryant of the Vera Institute of Justice, someone who, unlike Leonhardt, is actually qualified to write about migration, stated in an article I recently republished:
This November, and beyond, voters need to reject lies that demonize immigrants and demand policies that treat each person with dignity and fairness, no matter where they were born.
Obviously, neither Leonhardt nor the NYT editors got the message. They should!
Thanks again, Dan and Karen, for being the first to speak out and challenge Leonhardt’s dangerous, misleading, and highly irresponsible nativist nonsense!
🚩 Federal court knocks down key part of Florida’s anti-immigrant law temporarily – a massive win for immigrants’ rights against anti-immigrant state laws!
Today, the U.S. District Court for the Southern District of Florida granted a preliminary injunction in a lawsuit challenging the main provision of Florida’s anti-immigrant law SB1718. This means this part of the law is temporarily stopped while the full case continues to get litigated.
Spearheaded by anti-immigrant Governor Ron DeSantis, SB1718 has attacked immigrants in Florida in a multitude of ways, including the provision at issue in this lawsuit, which made it a crime to transport anyone into Florida who had not been “inspected” by the US government.
This had the effect of the state of Florida, through state criminal law, unlawfully enforcing federal immigration law, which hundreds of years of case law makes clear is a matter reserved for the federal government. The district court judge agreed (finding the Plaintiffs are likely to succeed on the merits of their conflict- and field-preemption claims).
Congratulations to the ACLU, SPLC, AIC, and AIJ who have led litigation on this case as well as my colleagues Immigration Impact Lab Senior Attorneys F. Evan Benz and Daniel J. Melo and AILA’s amicus committee for writing an excellent amicus brief in support of the lawsuit.
What can you do?
1. Spread the word. Help educate others about the importance of fighting for immigrants’ rights.
2. Celebrate. As we see more and more states seek to pass anti-immigrant laws at the state level following Florida and Texas’ lead, this decision is a milestone moment in advocates’ efforts to fight back. 🎉
Thanks, Adina, and way to go NDPA Team! The case is Farmworker Association of Florida v. Moody, No. 23-cv-22655 (Southern District of Florida, May 22, 2024). Expect Florida to appeal to the 11th Circuit, so, unfortunately, this isn’t the end of the matter.
Here’s a link to the decision by U.S. District Judge Roy K. Altman (Trump appointee):
Even as the national (non) debate on immigration deteriorates into lies, myths, and hate, there are still victories to be won by great, motivated lawyers dedicated to defending individual rights and the rule of law against political scofflaws like DeSantis and his nativist ilk!
As critical elections approach, voters are being bombarded with harmful myths, misrepresentations, and outright lies about people who are immigrants. More than 45 million people living in the United States were born elsewhere. Despite their proven contributions to communities nationwide, people seeking office call them “invaders” and make campaign promises for the “largest domestic deportation operation in history.” Inflammatory talking points about “border security” and the “migrant crisis” come from candidates across the political spectrum.
What is missing from this rhetoric is simple: the truth. The United States has failed to align its immigration laws and practices with 21st-century realities, leaving a system that is cruel, dysfunctional, and widely criticized. Bringing the country’s approach to immigration in line with the needs of the moment and building an immigration system that is both functional and humane will require serious effort. False information distracts from the solutions that we know work.
Here’s the truth.
It is perfectly legal to request asylum. People who come to the United States border to ask for help are not breaking the law.
Asylum is a form of protection that allows people to remain in the United States and avoid deportation back to a country where they fear persecution or harm because of their identity, religion, or political beliefs. Under both U.S. and international law, people who face danger in their homelands have the right to go to other nations to seek safety and to have their requests for asylum considered.
Asking for asylum is not a “free ticket” into the United States.
Applying for asylum is a long and complex process. Asylum cases completed in fiscal year 2019 or later took an average of 5.2 years to resolve, according to unpublished analysis of government data conducted by Vera. Currently-pending removal cases have been on the docket for an average of 1.9 years. Dangerous conditions around the world have forced record numbers of people to flee their homes and seek safety. This increase in need, exacerbated by a decades-long lack of investment in infrastructure and capacity to humanely process asylum claims, has created an enormous backlog in processing requests. Vera’s unpublished analysis of government data showed that, as of January 31, 2024, there were 3,353,199 cases pending removal proceedings in the United States.
Undocumented people have far lower crime rates than U.S. citizens.
Political candidates often falsely link undocumented people to crime in the United States. Yet an extensive study of crimes in all 50 states and Washington, DC, from 1990 to 2014, found that undocumented immigration does not increase violent crime. A study of arrests in Texas found that, relative to undocumented people, U.S.-born citizens are more than twice as likely to be arrested for violent crimes, 2.5 times more likely to be arrested for drug crimes, and more than four times more likely to be arrested for property crimes. Another study in Texas found that the criminal conviction rate for undocumented immigrants was 45 percent below that of native-born Texans. Immigrants of any legal status are typically found to be less involved in violence than native-born Americans.
Undocumented people pay taxes and help prop up social security by paying into the system—without receiving benefits.
Undocumented people pay an estimated $31 billion dollars in federal, state, and local taxes each year, including billions of dollars into a social security system from which they can draw very few, if any, benefits. The Social Security Administration (SSA) itself estimated that it collected $13 billion in payroll taxes in 2010 from workers without documentation, while only disbursing about $1 billion in payment attributable to unauthorized work. In a 2013 report, SSA estimated that “earnings by unauthorized immigrants result in a net positive effect on Social Security financial status generally. . . . We estimate that future years will experience a continuation of this positive impact on the trust funds.”
Virtually no fentanyl has been seized from people seeking asylum.
Fentanyl overdoses are increasing in the United States, and real solutions will require investments in treatment and preventative health care infrastructure. Instead, far too many politicians seek cheap political points by falsely blaming people seeking asylum at the southern border for this serious problem. In fact, virtually no fentanyl has been seized from people seeking asylum. In 2023, 93 percent of fentanyl seizures occurred at official border crossings or legal checkpoints. Nearly all of these seizures involved people permitted to cross the border, and more than 70 percent were U.S. citizens.
People with pending immigration cases show up to their court hearings.
Evidence clearly shows that, over the past two decades, most immigrants have shown up for the immigration court hearings that determine whether they have legal standing to remain in the United States. They do not slip into the country and disappear, as some political leaders claim. In fact, those who attend immigration court outside detention, on what are known as “non-detained” dockets, almost always continue to appear for their hearings when they are able to secure legal representation. There is no need to confine people in costly and inhumane immigration prisons.
Not all people at risk of deportation cross the border without documentation. Visa holders, long-term permanent residents, and even U.S. citizens are at risk.
While the spotlight often shines on people who cross the southern border without documentation, there are many ways that people can face the threat of deportation in the United States. Indeed, there are 22 million people in the United States who are at risk of being separated from their families and sent to countries where they may face danger. Tens of thousands of children who were adopted from outside the United States, for example, do not have documentation and are vulnerable to deportation because their complex citizenship paperwork was improperly filed. Additionally, more than one million people were brought to the United States as children by parents who entered the country without documentation or overstayed their visas. And, in 2022, more than 850,000 people from countries around the world overstayed their visas, making their continued presence in the United States unauthorized. Lawful permanent residents, current visa holders, and even U.S. citizens have been subjected to the risk of deportation and forced to defend their right to remain home with their families and in their communities.
Many people at risk of deportation actually have a legal right to remain in the United States—but are deported anyway.
Unlike in criminal court, people facing deportation in immigration court are not entitled to an attorney if they cannot afford one. Immigration attorneys can cost thousands of dollars, making them unaffordable for many. As a result, people seeking asylum, longtime legal residents, parents of U.S. citizens, and even small children are forced to appear in immigration court without an attorney to protect their rights. This makes it much more likely that they will be deported, even if they could have established a legal right to stay in the United States. The Fairness to Freedom Act, which was introduced in Congress last year and would establish a right to federally funded attorneys for all people facing deportation, would help fix this injustice.
Immigrants participate in the labor force and start businesses at higher rates than the native-born population.
One in six people in the United States workforce are immigrants. In fact, immigrants participate in the labor force at a higher rate than the U.S.-born population. Immigrants are also more likely to start businesses than native-born U.S. citizens. Furthermore, millions of people in the United States are employed by immigrant-founded and immigrant-owned companies.
People in the United States view immigration as a positive that benefits the country, and they support protections for people fleeing danger.
The majority of the public believes that immigration brings benefits to the United States, including economic growth and enriching culture and values. Nearly three-quarters of people polled said that people immigrate to the United States for jobs and to improve their lives, and more than half say that the ability to immigrate is a “human right.” Multiple polls show that the majority of people in the United States support protections for people who are trying to escape persecution and torture in their homelands. According to one Pew Research Center poll, 72 percent believe that accepting civilians trying to escape war and violence should be an important goal of U.S. immigration policy.
The United States has much work ahead to reform its dysfunctional and often cruel immigration system. This November, and beyond, voters need to reject lies that demonize immigrants and demand policies that treat each person with dignity and fairness, no matter where they were born.
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Erica’s “spot on” last sentence is certainly worth repeating:
This November, and beyond, voters need to reject lies that demonize immigrants and demand policies that treat each person with dignity and fairness, no matter where they were born.
While migrants might be the “easy target” of politicos and nativists, because they are vulnerable and “the usual scapegoats” for problems created or fostered by those very politicos and nativists themselves, in the end we ALL are the targets of those who want to inflict gratuitous cruelty while destroying our precious democracy.
As Dr. Martin Luther King, Jr., said “Injustice anywhere is a threat to justice everywhere.” Each of us has a vested interest in “not looking the other way” while our fellow humans unfairly are stripped of their rights and humanity with “harmful myths, misrepresentations, and outright lies.” YOU could be “next on the list!”
Austin Kocher, Ph.D. Research Assistant Professor TRAC-Syracuse PHOTO: Syracuse U.
From Professor Austin Kocher @ Linkedin:
New Report! “Two-Thirds of Court Asylum Applicants Found Legally Entitled to Remain.”
Out of 1M+ asylum cases decided by immigration judges over the past decade, 685,956 (66%) were legally entitled to remain in the United States due to asylum or other relief.
Remember, this is in a system that has, over decades, been intentionally rigged, manipulated, and skewed AGAINST legal asylum seekers, particularly those of color from certain arbitrarily “disfavored” countries! (Think Haiti, The Northern Triangle, and many African Nations). While this anti-asylum bias has “peaked” in GOP Administrations, Dems have also been guilty including the Biden Administration’s flailing, legally problematic efforts to abuse the asylum adjudication system as a “deterrent” to those legally seeking asylum!
The U.S. Asylum system over the past two decades has prided itself in making the experience of asylum seekers as restrictive, difficult, complex, arcane, arbitrary, and “user unfriendly” as possible for many of the most vulnerable. Even so, courageous asylum seekers who can actually get a decision persevere and succeed against the odds! What if Administrations of both parties worked to make the system fair and timely, rather than trying to use it as a false “deterrent?” Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Austin’s post triggered this exchange between Beckie “Deportation Defender” Moriello and me on LinkedIn:
BECKIE: It’s really higher than that, once we factor in all the wrongfully denied cases for clients who can’t afford to appeal.
PWS: Thanks for speaking truth, Beckie! If true asylum experts were on the BIA, IJs were experts who applied or were held by the BIA to the Cardoza, Mogharrabi, Kasinga, 8 CFR 208.13 framework, the asylum adjudication system had dynamic leadership, and individuals were competently represented, many more cases would be granted much more efficiently and backlogs would eventually come under control and start to diminish. In fact, individuals should be considered eligible for asylum even where persecution on a protected ground is “significantly less than probable” — the 10% rule! Moreover, asylum seekers who testify credibly are supposed to be given “the benefit of the doubt.” These and the presumption of future persecution established by past persecution, thereby shifting the burden to DHS, are still too often ignored, misapplied, or manipulated against asylum seekers. There is nothing that will make a backlog at least a decade in the making disappear overnight. But, a legitimate, legally compliant, properly generous asylum adjudication system would benefit all involved. It’s sad that Biden, Harris, Garland, and Mayorkas are afraid to comply with the rule of law for asylum seekers and other migrants!
Rev. Craig Mousin Ministry & Higher Education Wellington United Church of Christ U. of Illinois College of Law Greater Chicago Area PHOTO: DePaul U. Website
Restrictions To An Already Compromised Asylum System
This week we talk about a proposed rule from the Biden Administration that may change asylum proceedures and allow adjudicators to turn away people without proper research on their background.
Read the proposed rule: https://www.federalregister.gov/documents/2024/05/13/2024-10390/application-of-certain-mandatory-bars-in-fear-screenings
Read the NIJC’s breakdown: https://immigrantjustice.org/press-releases/nijc-denounces-new-biden-rule-adding-restrictions-already-compromised-asylum-system
Next week we should have a call to action with templates for you to help submit your comment. Watch this space!
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Thanks, Craig, for speaking up! Why does the Administration keep proposing likely unlawful restrictionist regulations that won’t help the situation at the border?
As Craig notes, there are “many positive ways” to improve the treatment of legal asylum seekers and promote fair and efficient consideration of their claims! Why is the Biden Administration “tuning out” the voices of those with border expertise who are trying to help them make the legal asylum system work?
Proposed Asylum Bar Regs Are At Odds With International Law (And Why That Matters)
In 2003, the Office of the U.N. High Commissioner for Refugees published Guidelines for applying the bars to asylum known internationally as the “exclusion clauses” (because they exclude an applicant from being recognized as a refugee under international law). Addressing the proper procedure for applying these bars, the UNHCR Guidelines state:
Given the grave consequences of exclusion, it is essential that rigorous procedural safeguards are built into the exclusion determination procedure. Exclusion decisions should in principle be dealt with in the context of the regular refugee status determination procedure and not in either admissibility or accelerated procedures, so that a full factual and legal assessment of the case can be made.1
This week, the Biden Administration published a proposed rule seeking to do precisely the opposite of what UNHCR advises.2 The rule would empower USCIS asylum officers to apply certain bars to asylum eligibility up front, at the border, as part of a preliminary admissibility determination. The goal is to effect the immediate deportation of certain asylum seekers, foreclosing their ability to have their eligibility for asylum decided by an Immigration Judge pursuant to a full-fledged hearing.
Advocates have already pointed out the dangers of the proposed approach, which will require quick decisions on highly complex issues at a point at which applicants very rarely have access to lawyers or evidence; their responses should be read.3 However, I would like to focus here on the rule’s conflict with international law, and why this is problematic.
Since 1804, the Supreme Court’s decision in Murray v. The Schooner Charming Betsy 4 has required domestic statutes to be interpreted consistently with international law whenever possible.5
This general requirement carries a particular urgency in its application to refugee law. The purpose of the 1951 Refugee Convention (which applied to those made refugees by World War II), and the 1967 Protocol (which extended the 1951 Convention’s definitions and protections to all) was to create a single, universal refugee standard to replace the patchwork of protections that reflected individual states’ own political preferences and biases.
This is not a small matter. International refugee law scholars James C. Hathaway and Michelle Foster have warned that “[i]nconsistency and divergence in interpretation of the Convention definition would clearly undermine the principled goal of ensuring a single, universal standard for access to refugee protection.”6 They further quote a decision of the Australian Administrative Appeals Tribunal in support of this contention: “[i]nconsistency is not merely inelegant; it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.”7
Congress apparently agreed with this approach when enacting the 1980 Refugee Act. In its landmark 1987 decision in INS v. Cardoza-Fonseca, the Supreme Court pointed this out:
If one thing is clear from the legislative history of the new definition of “refugee,” and indeed the entire 1980 Act, it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577, to which the United States acceded in 1968.8
And in adhering to Congress’s clear intent, the Supreme Court in Cardoza-Fonseca looked for guidance in interpreting the 1980 Refugee Act to UNHCR, citing its Handbook first issued in 1979 as an important tool for interpreting the Convention’s provisions. In a footnote, the Court found that while it was not binding, “the Handbook provides significant guidance in construing the Protocol, to which Congress sought to conform. It has been widely considered useful in giving content to the obligations that the Protocol establishes.”9
As leading scholar Deborah E. Anker has noted, “One of the most important developments in U.S. asylum law is the weight that U.S. authorities – including the USCIS Asylum Office, the Board, and the federal courts – give to the UNHCR’s interpretation of the refugee definition contained in its 1979 Handbook….” Anker noted that UNHCR has issued other interpretive documents since 1979 that “complement and expand on the Handbook.”10 I would argue that those other documents (which include the 2003 guidelines addressing the exclusion clauses that is quoted above) are deserving of the same interpretive weight.
So given (1) the Supreme Court’s Charming Betsy doctrine mandating conformity with international law whenever possible; (2) the stated intent of Congress to bring U.S. asylum law into conformity with international refugee law (as recognized in Cardoza-Fonseca); and (3) the purpose of the 1951 Convention to “ensure a single, universal standard” for refugee status, according great weight to UNHCR guidance in interpreting the Convention provides the best means of adhering to all of the above requirements.
However, another leading scholar, Karen Musalo, provided a recent reminder of how far U.S. law has strayed from international law standards for determining nexus (i.e. when persecution is “on account of” a statutorily protected ground), and in determining the validity of particular social groups. Musalo posits that realignment with international standards would resolve the erroneous interpretations that have arisen under present case law, and would remove unwarranted barriers to protection that presently exist.11 But with its new proposed regulations, the government instead seeks to veer even further off course in its procedures for determining bars to asylum eligibility.
In December 2020, I presented in a blog post a “wish list” for the incoming Biden Administration. One of the items on my list was to create a “Charming Betsy” regulation requiring adherence to international law refugee standards. It included the hope “that the Biden Administration would codify the Charming Betsy doctrine in regulations, which should further require the BIA, Immigration Judges, and Asylum Officers to consider UNHCR interpretations of the various asylum provisions, and require adjudicators to provide compelling reasons for rejecting its guidance.”12
I am not so naive to expect that a regulation like this will be proposed anytime soon. But I do believe that the direct contradiction of the proposed regs with international law guidance should be included in comments and talking points by those both inside and outside of government. Through these rules, the Biden Administration seeks to engage in the type of politically-motivated action that the Refugee Convention and 1980 Refugee Act sought to eliminate. For the above reasons, such action would violate the intent of Congress, our treaty obligations, and over two centuries of U.S. case law.
Moving forward, whether an asylum-related law, rule, policy, or case holding conforms with international law should instinctively be the first question asked by all of us. When refugee protection is viewed in such neutral, legal terms, the urge to politicize decisions will be lessened.
As those scholars referenced above have been saying far longer and more articulately than myself, it is only when international law becomes normalized in the process that our asylum law will function as it should.
Copyright 2024 Jeffrey S. Chase. All rights reserved.
See Weinberger v. Rossi, 456 U.S. 25, 32 (1982) (noting that construing federal statutes to avoid violating international law has “been a maxim of statutory construction since the decision” in Charming Betsy).
James C. Hathaway and Michelle Foster, The Law of Refugee Status (Second Ed.), (Cambridge, 2014) at 4.
Hathaway and Foster, supra at n.18 (quoting Brennan, J., in Re Drake and Minister of Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 (Aus. AAT, Nov. 21, 1979) at 639.
480 U.S. 421, 436-37 (1987).
Id. at 439.
Deborah E. Anker, Law of Asylum in the United States (2023 Ed.) (Thomson Reuters) at 20-21.
Karen Musalo, “Aligning United States With International Norms Would Remove Major Barriers to Protection in Gender Claims,” International Journal of Refugee Law (2024).
The schooner Charming Betsy sailed into Supreme Court history. Hon. Jeffrey Chase and other legal experts aren’t “charmed” by AG Merrick Garland’s approach to binding international standards for asylum! PHOTO: The Constitutional Law Reporter
Thanks, “Sir Jeffrey” for a great and timely analysis!
For the second successive Administration, we have an Attorney General who does not take seriously his oath of office to uphold the Constitution and laws of the United States when it comes to those seeking asylum.
Garland has too often signed off on regulations and policies that are clearly at odds with domestic and international law as well as our Constitution. The current abominable proposed regulations, referenced by Jeffrey and opposed by all experts on asylum law and human rights, are just the latest example. Those politicos behind these toxic policies won’t confront in person or acknowledge the well-documented unnecessary human trauma and degradation caused by scofflaw actions and policies that intentionally fail to make fair, humane, safe, and timely asylum processing available to all who come to legal ports of entry as required by law (not to mention human decency)!
Doris Meissner Senior Fellow and Director of the U.S. Immigration Policy Program Migration Policy Institute (“MPI”) PHOTO: MPI
🇺🇸⚖️🗽HUNDREDS GATHER FOR MPI’S GALA CELEBRATION OF THE INCOMPARABLE DORIS MEISSNER, THE CONSUMMATE “PRACTICAL SCHOLAR/PUBLIC SERVANT!”
By Paul Wickham Schmidt
Exclusive
May 16, 2024
Washington, D.C. — More than 300 “movers and shakers” of the migration world came together last night at the Intercontinental Hotel — Wharf in Washington D.C., to recognize and celebrate the continuing life’s work and leadership of Doris M. Meissner, former Commissioner of Immigration and a Justice Department policy official under administrations of both parties. The event was sponsored by Doris’s current employer, the Migration Policy Institute (“MPI”) where she is Senior Fellow and Director of the U.S. Immigration Policy Program.
I first met my fellow Wisconsinite and University of Wisconsin alum in 1975, during the Ford Administration, when she was a White House Fellow assigned to the Attorney General, and I was a young attorney working in the “Legacy” Immigration & Naturalization Service (“INS”) Office of General Counsel, then part of the Department of Justice (“DOJ”). Our careers intertwined, and Doris was one of my role models and inspirations over five decades of work to make fairer and better immigration, justice, and human rights policies for America. Those are values we both believed in and strived to promote!
The gala raised over $1,000,000 for the newly-established Doris Meissner Innovation Fund” at MPI.
Meissner GalaMeissner Gala. Hundreds gather at the Intercontinental in D.C. on May 15, 2024, for MPI Gala honoring The Legendary Doris Meissner.
Somewhat predictably, the “Honorary Co-Chairs,” Former President Bill Clinton and Former Wyoming Senator Alan Simpson, did not attend in person, although Senator Simpson contributed a video tribute. Nevertheless, there were plenty of prominent speakers including Muzzafar Chishti (Senior Fellow, MPI), The Honorable Roberta Jacobson (Chair, MPI Board of Trustees), Anthony D. Romero (Executive Director, ACLU), Helene D. Gayle (President, SpelmanCollege, by video), Soren Bjorn (CEO, Driscoll’s, which donated fresh raspberries for the dessert), Andrew Selee (President, MPI), and The Honorable Alejandro Mayorkas (Secretary, DHS).
The highlight of the evening was a short video starring some of Doris’s fellow social justice luminaries sharing their personal recollections of her many achievements and her impact on them. That was followed by some “family commentary” from Doris’s daughter, Christine Meissner and her brother Andy that also brought into the equation the work of their father and Doris’s beloved husband, the late Charles “Chuck” Meissner. “Teamwork” is critical to success, particularly on the family level!
In her remarks, Doris emphasized the influence of family on her work and the cosmic continuing importance of robust migration policies to our “nation of immigrants.” Among the most touching recollections were of those Americans she encountered later in life who had gotten their start as immigrants and naturalized citizens during her tenure at INS. One was a talented physician who performed essential surgery for both Doris and her daughter.
My main “takeaway” was her challenge to “keep the dream alive” — even through tough times — and her recognition of and lifelong commitment to “the human potential of migrants.”
On a personal level, it was great to see many friends and colleagues who had served as senior executives at INS, the Executive Office for Immigration Review (“EOIR”), and “Main Justice” during my 35 years at the Department, spanning five decades, as well as folks I worked with during my time in private practice.
I was particularly delighted to chat with my and Doris’s long-time mutual friend and colleague Jean Lujan. Jean, Doris, and Delia Combs Riso were part of the famous (or infamous) “Asylum Sisters’ Trio” who occasionally entertained at “Legacy INS” events! Sadly, MPI didn’t include an “encore performance” on the night’s program!
It was also wonderful that Doris got this well-deserved acclaim and recognition while her career is ongoing and she is actively inspiring those around her. Too often, I fear, we wait until the “truly great ones” are gone to recognize what we gained by their lives and lost upon their departure. Doris promised that she isn’t going anywhere for a long time! That’s fine and dandy with all of us!
At the same time, I experienced a bit of wistfulness. Here we were in a gathering of perhaps the best minds and problem solvers in the history of American immigration; yet, both the messages of the past and the potential promise for the future are being lost on today’s feckless political leaders and media pundits as they spout myths, spread fear, and recycle failed cruel, ineffective, and wasteful “mega enforcement and rights’ reductions or outright violations” on today’s migrants.
Indeed, some of those in the room had likely come to Washington for “dual purposes:” Not only to honor Doris, but also to valiantly try to inform and convince Congress and the Administration of the cruel, inhuman, and too often deadly results of years of “brain dead” enforcement policies and suppressing or eradicating the due process and human rights of migrants, all while intentionally eschewing enlightened, achievable, common sense reforms to our badly outdated and often intentionally dysfunctional immigration system.
One would search in vain for political leaders with the intellectual prowess, moral courage, human decency, and practical problem solving abilities of Doris Meissner among those driving, influencing, and seeking to dictate today’s misguided, ineffectual, and wildly inconsistent Government immigration policies. Without a moral compass on deck, the ship is veering badly and dangerously off course!
I am, of course, hopeful and encouraged that the new Doris Meissner Innovation Fund at MPI will fulfill its vision of creating “new opportunities to advance pragmatic solutions that work in the interests of all segments of society.” Yet, I am objectively fearful that such essential and potentially transformational efforts will “go in one ear and out the other” of our current political leaders and “pass over the heads” of the voting public which, in the overwhelming majority, owe their very existence to the phenomenon of human migration — of all kinds, types, and populations. How soon we forget where we all came from, and where we are going!
Thanks again, Doris, my friend and fellow Badger, for your unyielding efforts to “keep us on the high road!”
America’s misunderstood border crisis, in 8 charts
For all the attention on the border, the root causes of migration and the most promising solutions to the US’s broken immigration system are often overlooked.
There is a crisis on America’s border with Mexico.
The number of people arriving there has skyrocketed in the years since the pandemic, when crossings fell drastically. The scenes coming from the border, and from many US cities that have been touched by the migrant crisis, have helped elevate the issue in voters’ minds.
But for all the attention the topic gets, it is also widely misunderstood. The last few decades have seen a series of surges at the border and political wrangling over how to respond. The root causes of migration and why the US has long been ill-equipped to deal with it have been overlooked. Understanding all of that is key to fixing the problem.
Yes, border crossings are up. But the type of migrants coming, where they’re from, and why they’re making the often treacherous journey to the southern border has changed over the years. The US’s immigration system simply was not designed or resourced to deal with the types of people arriving today: people from a growing variety of countries, fleeing crises and seeking asylum, often with their families. And that’s a broader problem that neither Biden, nor any president, can fix on their own.
Here’s an explanation of the border crisis, broken down into eight charts.
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I highly recommend reading Nicole’s entire excellent article, with informative charts, at the link.
When both sides in the political debate eschew truth in favor of dehumanization, scapegoating, and pandering to nativist interests, it’s easy to see why real solutions to immigration issues are elusive. But, it needn’t be this way if politicos, the public, and the mainstream media looked for humane, practical, solutions that dealt with the realities of forced migration in the 21st Century, including the inherent limitations of “deterrence,” overt cruelty, disregard of known consequences, and unilateral actions.
Jenny Vi Beverly, Immigration Judge, Lowell Immigration Court
Jenny Vi Beverly was appointed as an immigration judge to begin hearing cases in May 2024. Judge Beverly earned a Bachelor of Arts in 2010 from the University of California, Los Angeles, and a Juris Doctor in 2013 from the University of Maine School of Law. From 2014 to 2024, she was in private practice as an attorney partner from 2014 to 2017 and as principal attorney from 2017 to 2024, representing noncitizens before EOIR and U.S. Citizenship and Immigration Services, Department of Homeland Security. During her time in private practice, she volunteered as pro bono counsel for the Immigrant Legal Advocacy Project in Maine. Judge Beverly is a member of the Maine State Bar.
Mark D. Donovan, Immigration Judge, Boston Immigration Court
Mark D. Donovan was appointed as an immigration judge to begin hearing cases in May 2024. Judge Donovan earned a Bachelor of Arts in 1992 from The Catholic University of America, a Master of Business Administration in 2001 from Northeastern University, and a Juris Doctor in 2008 from New England Law – Boston. From 2012 to 2024, he was an associate at Considine & Furey LLP in Boston, practicing civil litigation and criminal defense. From 2008 to 2012, he was an assistant district attorney in the Bristol County District Attorney’s Office in Bristol County, Massachusetts. Judge Donovan is a member of the Massachusetts Bar.
Nina J. Froes, Immigration Judge, Lowell Immigration Court
Nina J. Froes was appointed as an immigration judge to begin hearing cases in May 2024. Judge Froes earned a Bachelor of Arts in 2003 from the University of. Massachusetts Dartmouth and a Juris Doctor in 2008 from Roger Williams University School of Law. From 2013 to 2024, she was a solo immigration law practitioner at the Law Office of Nina J. Froes in New Mattapoisett, Massachusetts. From 2012 to 2013, she was a clinical fellow at the Immigration Law Clinic, School of Law, University of Massachusetts Dartmouth. From 2010 to 2011, she was the legal director of the Immigrant Victims Representation Project, Immigration Department, Catholic Social Services of Fall River, Catholic Charities USA, in Fall River, Massachusetts. From 2008 to 2011, she was a fellow in the immigration unit at the Legal Assistance Corporation of Central Massachusetts in Worcester, Massachusetts. Judge Froes is a member of the Massachusetts Bar and the Rhode Island Bar.
Roopal B. Patel, Immigration Judge, Boston Immigration Court
Roopal B. Patel was appointed as an immigration judge to begin hearing cases in May 2024. Judge Patel earned a Bachelor of Arts in 2003 from Harvard University and a Juris Doctor in 2011 from New York University School of Law. From 2014 to 2024, she was a senior staff attorney at Manhattan Legal Services where she worked on a wide variety of cases, including immigration cases. From 2011 to 2013, she was a staff attorney at the Brennan Center for Justice. Judge Patel is a member of the New York State Bar.
Sarah F. Torres, Immigration Judge, Concord Immigration Court
Sarah F. Torres was appointed as an immigration judge to begin hearing cases in May 2024. Judge Torres earned a Bachelor of Arts in 2004 from the University of California, Berkeley and a Juris Doctor in 2007 from the University of California, Davis School of Law. From 2019 to 2024, she was the managing attorney of the immigration legal services program at Opening Doors Inc., in Sacramento. From 2015 to 2019, she was a partner at Tomlinson & Torres PC. From 2008 to 2014, she practiced immigration law in private practice. Judge Torres is a member of the State Bar of California.
Joan B. Geller, Appellate Immigration Judge
Attorney General Merrick B. Garland appointed Joan B. Geller as an appellate immigration judge in May 2024. Judge Geller earned a Bachelor of Arts in 1990 from the University of Wisconsin and a Juris Doctorate in 1994 from the Georgetown University Law Center. From 2003 to 2024, Judge Geller served as an attorney advisor with the Board of Immigration Appeals (BIA), and in 2015, 2016, 2018, 2020, and 2021 she served as a temporary Appellate Immigration Judge with the BIA. From 2002 to 2003, she was deputy staff counsel at the District of Columbia Court of Appeals. From 1996 to 2002, she was a staff attorney at the District of Columbia Court of Appeals. From 1994 to 1996, she was a court law clerk at the District of Columbia Court of Appeals. Judge Geller is a member of the Maryland State Bar and the District of Columbia Bar.
Homero López Jr., Appellate Immigration Judge
Attorney General Merrick B. Garland appointed Homero López Jr. as an appellate immigration judge in May 2024. Judge López earned a Bachelor of Arts in 2007 from Southern Methodist University and a Juris Doctorate in 2010 from Tulane University Law School. From 2018 to 2024, Judge Lopez worked with the Immigration Services and Legal Advocacy (ISLA) in New Orleans, which he cofounded, serving as legal director from 2021 to 2024 and executive director from 2018 to 2020. From 2015 to 2018, he worked with Catholic Charities of the Archdiocese of New Orleans, serving as managing attorney of Immigration Legal Services from 2015 to 2018 and as supervising attorney for the Unaccompanied Children’s Program in 2015. From 2011 to 2014, he worked with Catholic Charities of the Diocese of Baton Rouge, serving as a staff attorney from 2011 to 2014 and as a supervising attorney in 2014. Judge López is a member of the Louisiana Bar.
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The appointments of Judges Lopez and Geller to the BIA were previously announced on “Courtside.”
Congratulations, best wishes, and good luck to these and all of the other new Judges! Remember, beyond all the bureaucratic nonsense that EOIR might throw at you, the name of the game, the ONLY game, is due process, fundamental fairness, and correct results! With lives at stake, our country and humanity are counting on you to help lift EOIR out of its “downward spiral” and to permanently change the “any reason to deny” culture!
