⚖️🗽 LA TIMES: RENOWNED REFUGEE EXPERT/SCHOLAR PROFESSOR KAREN MUSALO SAYS UNDER TRUMP THE U.S. IS FAILING TO MEET LEGALLY BINDING OBLIGATIONS TO REFUGEES — BIG TIME!🤯

 

Karen MusaloProfessor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law

In times like these, we should not depend solely on the courts. There are many of us here in the U.S. who believe that the world’s refugee framework — developed in response to the profound moral failure of turning back the St. Louis — is worth fighting for. We need to take a vocal stand. The clear message must be that those fleeing persecution should never be returned to persecution.

If we take such a stand, we will be in the good company of those who survived the Holocaust and continue to speak out for the rights of all refugees.

https://lnkd.in/gTjBKb5K

It’s been a busy time for Karen. She writes in Linkedin:

I was very honored to be chosen by the 2025 graduates of UC Law, San Francisco, to be their faculty speaker. Our students truly inspire me, and make me hopeful for the future.

Karen Musalo
Karen Musalo speaking at UC Law graduation, May 2025.
PHOTO: Linkedin

 

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Thanks for speaking out so forcefully and articulately, my friend! Sticking to and standing up for values and the rule of law is important, particularly in an age of scofflaws, myth spreaders, and dehumanizers! One need look only as far as the St. Louis incident that you cite to see how even with the benefit of historical knowledge and fact, some among us stubbornly stick to lies, myths, and xenophobia with tragic and deadly results.

⚖️ Due Process Forever!

PWS

05-22-25

⚖️🧠💡 LAW YOU CAN USE FROM HON. “SIR JEFFREY” S. CHASE OF THE ROUND TABLE 🛡️⚔️ — The BIA’s Misinterpretation of “Clearly Erroneous” is Clearly Erroneous! — Take the BIA’s “any reason to deny” culture to the Circuits!💪🏼

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

 

[T]he Board in Matter of A-A-R- impermissibly reinterpreted the evidence in a very selective way in order to reach a different conclusion than that reached by the trier of fact. As the Fourth Circuit recently held in reversing the Board, “In conducting clear error review, the BIA may not reweigh evidence or ‘substitute[ ] its own judgment for that of the IJ.’”

For all of the above reasons, a prediction that A-A-R- will not withstand circuit court scrutiny would not be clearly erroneous.

 

https://www.jeffreyschase.com/blog/2025/5/18/when-are-future-predictions-clearly-erroneous-matter-of-a-a-r-1

 

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Thanks, Jeffrey, my friend and colleague, for your scholarly exposition of the BIA’s result-oriented sophistry. It’s no coincidence that in erroneously reversing a solid CAT grant to El Salvador the BIA chose, as it seldom does in other than a negative context, to reject a very viable form of mandatory protection, to a country currently in the news, which is available without regard to criminal record, alleged gang membership, and /or discretionary factors.

By choosing to designate it as a rare precedent, the “captive” BIA appears to be fulfilling the political demands of the Trump Administration to be able to argue, contrary to the Supremes, that no fair hearings are necessary in similar cases of illegal removals because an ultimate negative result is foreordained by precedent (even though that is clearly wrong, even under A-A-R-).

Administration lawyers have even gone to the extraordinary extent of trying to— so far unsuccessfully — submit and argue that bogus “predictive denials” — basically the DHS’s position without any opportunity to challenge — can be relied upon by a reviewing Article III court to deny the return of individuals wrongfully deported. What a complete crock and insult to the rule of law, as well as to the judges to which these disingenuous arguments are addressed! 🤬🤮

While “third country removals” are possible for those granted withholding of removal or deferral of removal under the CAT, proper legal procedure and due process require that 1) the DHS seek to reopen the case for designation of a new country of removal (unless such alternative country was previously designated and named in the Immigraton Judge’s order), and 2) the respondent be given a reasonable opportunity to raise any protection claims relating to that country.

⚖️ Due Process Forever!

PWS

05-21-25

⚖️CHRISTIE THOMPSON @ THE MARSHALL PROJECT ON TRUMP’S CUT-OFF OF FUNDING FOR THE PROGRAM ALLOWING VULNERABLE INDIVIDUALS TO RECEIVE DUE PROCESS IN IMMIGRATION COURT — Quoting Round Table’s Judge (Ret.) Sarah Burr, Among Other Experts!

Christie Thompson
Christie Thompson
Staff Writer
The Marshall Project
PHOTO: The Marshall Project
Hon. Sarah Burt
Hon. Sarah Burr
Retired U.S. Immigration Judge
Knightess of The Round Table
Photo Source: Immigrant Justice Corps website

“These all have the same objective, which is to strip immigrants of their rights in court,” said former immigration judge Sarah Burr. “The idea that this would somehow speed up the process is ridiculous. It’s only going to slow it down.”

Burr said that forcing someone to appear in court without an attorney makes it a judge’s responsibility to ensure someone understands what is happening and can make decisions in their case. “That takes a long time,” she said. “You’re being put in an awkward position. You almost become a party instead of the judge.”

https://www.themarshallproject.org/2025/05/19/lawyers-immigrants-mental-health-detention

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Another reprehensible elimination of working, cost-effective programs that are essential to providing due process to America’s most vulnerable.

Due Process Forever!⚖️

PWS

05-20-25

Dr. Triche Blog #4: Disappeared: Pursuing Legal Return of the Wrongfully Deported Against the Political Backdrop of Securitization

Disappeared: Pursuing Legal Return of the Wrongfully Deported Against the Political Backdrop of “Securitization.”   

by Dr. Alicia Triche

Featured authority:

Noem v. Abrego Garcia, 604 U.S. ___, 145 S.Ct. 1017 (2025)

J.A.V. v. Trump, No. 1:25-cv-072, Order and Op. (S.D. Tex. May 1, 2025)

 

The legal authority to order return of a wrongfully deported individual is largely rooted in the concept of “nunc pro tunc,” an equitable remedy which allows that a “judgment or the decree may be entered retrospectively, as of a time when it should or might have been entered up.”[1] As the Second Circuit held in Edwards v. INS, nunc pro tunc authority is “a means of rectifying error” that “has a long and distinguished history in the field of immigration law.”[2] In fact, said authority is explicitly invoked in the very first headnote, in the very first reported immigration decision.  85 years ago, in Matter of L, the Attorney General invoked equitable power to back-date permission to enter for a trouble-making, but (at least according to the A.G.) ultimately deserving Yugoslavian.  1 I&N 1 (A.G. 1940).

Fast-forwarding into the modern era, nunc pro tunc authority has proved needed to address wrongful removals in numerous contexts.  Since 1996, when IIRIRA[3] established that filing a petition for review “does not stay the removal of an alien pending the court’s decision…unless the court orders otherwise,”[4] removals that are later deemed wrongful have occurred at all stages of Court of Appeals proceedings.  In such instances, including those where removal happened before a meritorious Stay was ultimately granted, attorneys have successfully sought the return of wrongfully deported petitioners.[5]  Now, of course, the occurrence of illegal deportation has expanded outside of the context of individual appeals, catapulting the concept of its judicial correction into the mainstream of public consciousness.

 

When a court orders the government to attempt the return of a wrongfully deported individual during pending legal proceedings, it effectively rules that a stay of removal is merited nunc pro tunc; and, then, it simultaneously invokes an inherent equitable authority to restore the status quo.  As the Supreme Court observed in 1996, in Peacock v. Thomas,[6] a federal court must have “inherent power to enforce its judgments,” lest its abilities become “entirely inadequate to the purposes for which it was conferred by the Constitution.”  Although its precise contours are still fuzzy—and I must defer here to a braver soul to delve into the whole “facilitate” v/s “effectuate” arena—the Supreme Court has now definitively laid to rest any doubt that a Court has inherent authority to order tangible redress against wrongful deportation.  In Noem v. Abrego Garcia, 604 U.S. ___, 145 S.Ct. 1017 (2025), the Court held that, because “removal to El Salvador” was “illegal,” the District Court “properly” required the Government to “facilitate” Abrego Garcia’s release from custody in El Salvador and to “ensure that his case is handled as it would have been had he not been improperly sent….”[7]

 

It now being crystal clear that courts possess power to order attempted return, it will be up to litigators to ask them to use it.  May 6, 2025, Law360 reported that a Baltimore federal judge had rejected the government’s request to vacate her ruling ordering the return of a 20-year-old Venezuelan asylum-seeker who had been sent to CECOT under the Alien Enemies Act, despite being a member of a class action settlement agreement protecting unaccompanied minors.[8]  In the opposite direction, on March 27, 2025, in an unpublished order, the Fifth Circuit Court of Appeals denied, without comment, a motion for a retroactive stay and order of return.  The request had been made by a Central American man who was initially granted Torture Convention relief by a Louisiana Immigration Judge, but was deported before he could apply for a Stay of Removal.[9]

 

Of course, these are but two small anecdotes amidst a flowing sea of removals.  This leads me to the point that the legal challenges I have referenced above are occurring in a highly political context: attempted “securitization.”  Securitization is an international relations concept developed by a group sometimes referred to as the Copenhagen School.  Under securitization, it is not the objective level of danger in a purported threat (in this case, “illegal immigrants”—or, really, just “immigrants”) that takes it into the discursive realm national security.  Instead, it is the nature of the discourse that surrounds it.  “The issue becomes a security issue”, the authors explain, “not necessarily because a real existential threat exists but because the issue is presented as such a threat.”[10]

 

Again, this process, through which a “speech act” creates a security issue, is referred to as “securitization”.[11]  It a method through which government actors move an issue out of the frame of “normal politics”[12] in order to claim extraordinary powers.  By invoking “security,” says Barry Buzan, “a state representative declares an emergency condition, thus claiming a right to use whatever means are necessary to block a threatening development.”[13]  But securitization is only successful if it is accepted by a large enough portion of its audience.  Since it is a speech act, it can also be resisted by speech—and, from the point of view of immigration litigators, that can mean continuing to assert the rule of law in court, including the presentation of legal arguments for the return of wrongfully deported persons.

 

When viewed through the illuminating lens of securitization, Judge Fernando Rodriguez, Jr.’s order in J.A.V. v. Trump is especially remarkable.[14]  Throughout history, US courts have been exceedingly reticent to delve into the substantive boundaries of security-related issues, even where it involves purely legal questions.  It is thus remarkable that a conservative judge, sitting in Brownsville, has deliberated the substantive definitions of “invasion” and “predatory incursion,” and held that the Executive has utilized the incorrect legal standard to invoke the Alien Enemies Act.[15]  It is truly a Nixon-goes-to-China moment, and it is a reflection that securitization is not automatically successful just because it is attempted.  This is what all proponents of the rule of law, including immigration litigators, must keep in mind, when facing a system under siege, in this extraordinary era.

 

[1] Mitchell v. Overman, 103 U.S. 62, 64–65 (1881).

[2] Edwards v. INS, 393 F.3d 299, 308–309 (2nd Cir. 2004).

[3] Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (1996).

[4] 8 U.S.C.A. § 1252(b)(3)(B) (Westlaw 2025.)

[5] See, e.g., Herrera-Meza v. Sessions, No. 18-70117, Dkt. 17 (9th Cir. Sept. 18, 2018) (granting a late motion to reconsider a judicial stay denial and ordering individual’s return to restore status prior to deportation); W.G.A. v. Sessions, No. 16-4193, Dkt. 65 (7th Cir. Mar. 19, 2018) (granting stay that becomes effective on “reentry to the United States pending resolution of [the] petition for review”). The author thanks Trina Realmuto at the National Immigration Litigation Alliance for calling her attention to these orders.

[6] 516 U.S. 349, 356 (1996); see also Crowe v. Smith, 151 F.3d 217, 226 (5th Cir. 1998), citing Chambers v. NASCO, Inc., 501 U.S. 32, 42 (1991) (recognizing the existence of “implied power squeezed from the need to make the court function”; Nken v. Holder, 556 U.S. 418, 426 (2009) (“An appellate court’s power to hold an order in abeyance while it assesses the legality of the order has been described as ‘inherent,’ preserved in the grant of authority to federal courts to ‘issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law”.)

[7] 145 S.Ct. at 1018.

[8] Jared Foretek, Judge Won’t Reverse Order to Bring Back Asylum-Seeker (Law 360 May 6, 2025).

[9] (Order on file with the author; further details redacted for confidentiality).

[10] Barry Buzan, Ole Wæver and Jaap de Wilde, Security: A New Framework for Analysis (Lynne Reiner Publishers Boulder CO 1998) 24.

[11] See, e.g., Buzan Wæver and de Wilde 25.

[12] Buzan Wæver and de Wilde 24 (international quotations omitted).

[13] Buzan, Wæver and de Wilde 21 (citation omitted).

[14] J.A.V. v. Trump, No. 1:25-cv-072, Order and Op. (S.D. Tex. May 1, 2025)

[15] Id. at 30–31.

🇺🇸⚖️🗽⚔️🛡️ THE THINGS WE DO, BIG & LITTLE, IN ADVOCATING FOR DUE PROCESS, FUNDAMENTAL FAIRNESS, COMMON SENSE & HUMAN DIGNITY MATTER! — Federal Judge cites Round Table’s Amicus Brief in support of key finding in halting Administration’s abuse of children facing Immigration Court!💪🏼👍🏼😎

Knightess
Knightess of the Round Table

Hon “Sir Jeffrey” Chase of the Round Table writes:

“See attached order: a TRO issued late last night. And our Round Table brief was mentioned:

The Court additionally finds that the continued funding of legal representation for unaccompanied children

promotes efficiency and fairness within the immigration system. See generally Br. for Amicus

Curiae Former Immigration Judges & Former Members of the Board of Immigration Appeals

(ECF 28). A temporary restraining order enjoining the Cancellation Order serves the public interest.

Thanks to all!”

Here’s the full decision granting the TRO:

ORDER TRO 2

And, here’s a link to our brief as recently posted on “Courtside:”

https://immigrationcourtside.com/2025/03/31/%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%91%a6%f0%9f%8f%bd%f0%9f%91%b6%f0%9f%8f%bc%f0%9f%9b%a1%ef%b8%8f%e2%9a%94%ef%b8%8f-saving-the-children-round-table-amicus-brief-supports-pro-bono-services-for/

 

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🇺🇸 Due Process Forever!

PWS

04-02-25

 

🏴‍☠️RIDING ROUGHSHOD OVER REQUIREMENTS OF WILBERFORCE ACT, MUMP KAKISTOCRACY CANCELS LEGAL AID CONTRACTS, TARGETS KIDS FOR DEPORTATION WITHOUT DUE PROCESS! ☠️🤬🤮

Wendy Young
Wendy Young
President, Kids In Need of Defense (“KIND”)

Reacting to this outrageous breach of the law and morality, Wendy Young, the President of Kids in Need of Defense (“KIND”) said:

“The administration’s devastating decision to strip vital legal services away from unaccompanied children runs counter to its stated desire to protect kids, some as young as toddlers, against trafficking, exploitation, and other abuses that make them easy prey for those who would do them harm. The critical legal programs eliminated today have long-standing bipartisan support from Congress, not only because they protect children from danger, but because they also improve efficiencies in the immigration system by ensuring legal counsel for unaccompanied children who otherwise must navigate a complex court proceeding alone. This includes facilitating private-sector pro bono legal services that KIND oversees with almost 900 law firms, corporations, law schools, and bar associations at no cost to the government. The value of these contributions from KIND’s pro bono partners is approximately $1 billion, a significant contribution at a time when the federal government is claiming to seek cost savings. Elimination of the services in this contract, which are mandated by law, makes it all but impossible for many unaccompanied children to appear for their immigration court hearings or otherwise remain in touch with immigration agencies. It severs key lines of communication and coordination between vulnerable unaccompanied children and the institutions in place to ensure their protection.

 

“While today’s development is unconscionable, Congress can act to restore these key protections. For years, bipartisan spending bills have dedicated resources to this important work. Doing so has never been more important than now. Congress has full authority on its own to remedy the crisis the administration’s actions will yield – authority it should exercise decisively. KIND calls upon the House of Representatives and Senate to work in a bipartisan fashion to mandate robust funding in the FY 2026 federal appropriations package to the Office of Refugee Resettlement for complete restoration of unaccompanied children’s legal services, including full legal representation. The safety of thousands of children depends on it.”

 

For more information, please contact Brenda Bowser Soder at bbowsersoder@supportkind.org

https://supportkind.org/press-releases/elimination-of-vital-legal-services-for-unaccompanied-children-undercuts-administrations-desire-to-prevent-trafficking-ensure-court-efficiency/

 

Starving Children
Ready to face ICE prosecutors in “court?” What could possibly go wrong!
Creative Commons License

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Dismantling that which works, targeting the most vulnerable, is what a kakistocracy consisting of malicious incompetents does!🤬🤮

Due Process Forever!⚖️🗽

PWS

03-22-25 

⚖️👩🏻‍⚖️👨🏻‍⚖️🤯🤬 “ASHCROFT PURGE OF ’03 REDUX!” — As EOIR backlog approaches 4  million cases, and due process deteriorates, Trump Administration reportedly plans to reduce the size of the BIA by 13 Appellate Immigration Judges! — The “farce of independent quasi-judicial review” at the BIA continues in full swing as Article IIIs ignore the clear 5th Amendment due process violations inherent in the structure and politicized administration of “Immigration Courts” controlled by the Executive that are not able to function independently!🤯

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Been there, done that!

Redux of the “Ashcroft Purge of the BIA” in ‘03!🤮 That touched off a crisis in the Circuit Courts who were infuriated by the resulting sloppy “rubber stamp” denials and intemperate language from some IJs. Circuit Judges Posner (CA 7) and Walker (CA 2) were particularly harsh and publicly critical of EOIR’s poor performance. Former GOP House staff member and “practical scholar” Peter Levinson published the definitive analysis of this due process farce in his article “The Facade of Quasi-Judicial Independence In Immigration Appellate Adjudications,” available here: https://immigrationcourtside.com/2024/04/02/%e2%9a%96%ef%b8%8f-bia-expands-to-28-appellate-judges-plus-bonus-coverage-lest-we-forget-the-ashcroft-purge-of-the-bia/

pastedGraphic.png

⚖️ BIA EXPANDS TO 28 APPELLATE JUDGES! — PLUS BONUS COVERAGE: “Lest We Forget: The Ashcroft Purge of the BIA!” Dan Kowalski reports: This document is scheduled to be published in the Federal Register on 04/02/2024 “On April 1,

Not surprisingly, following the purge, the BIA found it difficult to operate with an arbitrarily reduced number of members. To fill the gap that they had created, DOJ politicos and “EOIR Management” began designating senior BIA staff attorneys as “Temporary Board Members” (“TBMs”). Unlike the “purged members” who had gone through a competitive selection process prior to appointment, the designation of TBMs was solely within the discretion of EOIR Management subject to approval by the Deputy Attorney General.

Only “BIA staff insiders” were considered for these appointments. There was no transparent public selection process.

Significantly, the TBMs had no vote at en banc conferences nor could they vote on publication of precedents (although they could be panel members on published precedent decisions voted on by a majority of “permanent” Board Members). While their terms of service were supposed to be limited, subject to reappointment, this requirement was largely ignored by the DOJ and EOIR Management until somebody raised it as a potential issue and corrective action was taken. Obviously, TBMs who aspired to one day join the BIA on a permanent basis had every incentive not to “rock the boat” or show “undue independence” in a way that might displease EOIR Management or the DOJ politicos who were involved in such selections.

At first, this “insider process” was kept largely “below the radar screen.” But, eventually, as attorneys started noticing unfamiliar names on appellate decisions, the process was acknowledged by EOIR Management and the names and bios of the TBMs started appearing on the EOIR website. (The BIA had previously, on occasion, used field Immigration Judges, OCAHO ALJs, and rehired retired Board Members “sitting by designation,” on panels in a manner similar to the U.S. Circuit Courts of Appeals. The regulations had been changed to permit the designation of senior BIA staff as an additional option.) 

Eventually, the DOJ “came clean” and began once again expanding the “permanent membership” of the BIA without ever publicly acknowledging that it had been problematic and wasteful to reduce the BIA’s membership for political reasons in the first place. That expansion eventually reached 28 Appellate Immigration Judges as described in the “Courtside” link above.

So, now begins a new round of arbitrary, politically motivated, “reductions” in the size of the BIA, even in the face of overwhelming backlogs. But, if this “politically weaponized” parody of a ”court system” continues into the future, don’t be surprised if some future DOJ politicos return to the “TBM system” or start once again increasing the number of BIA “permanent” judges.

That, of course, highlights the bigger question: How does a “court system” where politically-motivated Executive Branch employees have complete control and discretion over the hiring, firing, and “supervision” of “administrative judges” pass muster under the due process clause of the 5th Amendment? Basically, both Article III Courts and the Congress have “punted” on the glaring conflicts of interest and inherent biases presented by such a “captive” tribunal.

Here’s additional coverage from Britain Eakin on Law360, quoting me, among others:

Trump Admin To Nearly Halve Immigration Appeals Board – Law360

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⚖️ Due Process Forever!

PWS

02-21-25

⚖️🗽💪🦸🏻‍♀️😎 WHAT MAKES IT ALL WORTHWHILE: In a time of intentional chaos, irrational cruelty, and extreme misgovernance, we must celebrate and be inspired by the daily individual victories of the NDPA!

Equal Justice
Equal Justice
FROM: United Nations, Creative Commons License

Got this from a former student last week:

Happy New Year! Just wanted to share a victory with you, I had my first bond hearing today and I got it granted over ICE objections! I was channeling you the whole time!

Due Process Forever!⚖️😎

PWS

02-02-25

Dr. Triche Blog #3: Constitutional and Legal Challenges to New Detention in Old Proceedings

 

Featured authority

Ortega v. Bonnar, 415 F.Supp.3d 963 (N.D. Cal. 2019)

Matter of Sugay, 17 I&N Dec. 637 (BIA 1981)

 

As I draft this, a flurry of new Executive Orders are raining down, and the Senate is scheduled to resume consideration on “S.5” (a.k.a. the Laken Riley Act).  It’s a day of import, to say the least.  And the first thing on my own mind is detention–specifically, potential attempts at re-detention, and/or new detention, of non-citizens who are already in the midst of removal proceedings.

In this blog, I’ll invoke what Judge Schmidt calls my “practical scholarship” skills to address the existing legal criteria for such re-detention, with a specific eye towards how it might be challenged.  Here, we’re only considering the plight of non-citizens charged under section 236 of the Immigration and Nationality Act, which puts the authority and criteria for their detention at 8 U.S.C. § 1226(a)–(e).  As a go-to introduction to this, and ICE detention in general, I highly recommend “A Guide to Obtaining Release from Immigration Detention,” which was published May 28, 2024 online by the National Immigration Project.[i]

As the NIP Guide so aptly explains, Immigration Court “removal” proceedings are instituted after an ICE-ERO officer decides whether to detain the individual and/or release them.  Such release could be on bond, recognizance, or formal parole.  According to the Vera Institute, immigration courts are facing a caseload of around 3.7 million—out of which around 18,500 are presently detained.[ii]

Statutory authority to detain is at INA section 236, which provides: “On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States…”  8 U.S.C.A. § 1226(a) (Westlaw 2025).  Various criteria for mandatory detention are contained at § 236(c), but if that hurdle is cleared, release can (and does) happen for the remainder of proceedings.[iii]

The practice of re-detention, has so far, been rarely invoked.  If that changes, the first argument that can be levied against it is that, unless DHS/ICE has demonstrated a material change of circumstances, re-detention violates binding legal precedent.[iv]  On its face, the INA does provide that “[t]he Attorney General at any time may revoke a bond or parole authorized under subsection (a), rearrest the alien under the original warrant, and detain the alien.  8 U.S.C.A. § 1226(b) (Westlaw 2025); see also 8 CFR 236.1(c)(9).[v]  However, as the district court noted in habeas proceedings in Ortega v. Bonnar, 415 F.Supp.3d 963, 968 (N.D. Cal. 2019), the BIA has placed “a limitation on this authority…In practice, the DHS re-arrests individuals only after a “material” change in circumstances.”  Id., citing Matter of Sugay, 17 I&N Dec. 637 (BIA 1981) (other citations omitted).

The Sugay rule is this: “where a previous bond determination has been made by an immigration judge, no change should be made by a [deciding officer] absent a change of circumstance.”  Matter of Sugay, 17 I&N Dec. 637, 640 (BIA 1981).  This tenet is still (and repeatedly) recognized by the BIA and by federal courts.[vi]  For instance, in Zabaleta v. Decker, 331 F.Supp.3d 67 (S.D.N.Y. 2018), the Southern District of New York granted a habeas petition, citing Sugay.  The Court ordered remand to the Board for “legal error in the components of the BIA’s determination that the petitioner was a danger to the community and a risk of flight.”

Habeas, incidentally, is the means by which detention is challenged in federal court.  BIA bond denials do not directly reach the Courts of Appeal due to INA § 236(e), which provides no court shall set aside the executive’s “discretionary judgment …regarding the detention or release of any” noncitizen.  However, district court habeas jurisdiction falls under 28 U.S.C.A. § 2241(c)(3), which provides for the writ where a petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.”  Like the Southern District of New York in Zabaleta, other district courts have regularly asserted habeas jurisdiction in cases brought by detained non-citizens.  A go-to, excellent practice advisory on habeas (linked in the end-notes) is the NILA/ABA Nuts and Bolts of Habeas Corpus Petitions Challenging Immigrant Detention (Jul. 31, 2021).[vii]

Whether challenged via habeas or directly before the IJ/BIA, on a basic level, detention must occur within the parameters of the executive branch’s delegated authority to detain.  INA section 236(a) authorizes “detention pending a decision on whether the alien is to be removed” (emphasis added).  In a handful of cases that should be reviewed by any practitioner seeking to challenge an individual detention, the Supreme Court has indicated the power to detain is tethered to the reasonable exercise of this authority.  Zadvydas v. Davis, 533 U.S. 678 (2001); Demore v. Kim, 538 U.S. 510 (2003); Nielsen v. Preap, 139 S.Ct. 954 (2018); see also Jennings v. Rodriguez, 138 S.Ct. 830, 846 (2018) (indicating that mandatory detention under INA § 236(c) has a “definite termination point”).

Considering this, litigators challenging detention have made direct constitutional arguments, rooted in the Fifth Amendment.  The idea is that if the purported “reasons” for detention become too far-fetched from their legitimate (removal) goal, that detention violates procedural due process.  In a post-Nielsen v. Preap Practice Advisory, the ACLU puts it this way: “Where an individual has lived peaceably in the community for years, and may well have strong family ties and a high likelihood of prevailing in her removal hearing, mandatory detention is no longer adequately linked to the government’s interest in preventing flight risk and danger.”[viii]  This is because (the advisory cites), “Due process requires that immigration detention “‘bear[] a reasonable relation to the purpose for which the individual was committed.’” Demore v. Kim, 538 U.S. 510, 527 (2003), citing Zadvydas v. Davis, 533 U.S. at 690–91.

Similar arguments have been successful where detention was too prolonged to be considered reasonably tethered to the purpose of effecting removal.  In 2020, the Northern District of Georgia directly utilized Mathews v. Eldridge, 424 U.S. 319 (1976), to hold that a habeas petitioner’s detention violated due process.  J.G. v. Warden, Irwin County Detention Ctr., 501 F.Supp.3d 1331, 1336 (M.D. Ga. 2020).  As part of the balancing test, the Court stated “prolonged immigration proceedings have stalled [the petitioner’s] removal case.”  Both the NIP and the ACLU practice advisories contain numerous other examples of cases, both pre- and post Jennings v. Rodriguez, which ruled that detention was unconstitutional due to prolonged proceedings.

Importantly, many of these recent constitutional challenges have been successful despite directly contravening the “mandatory” detention requirements contained in the present version of 236(c).  Demonstrably, then, the constitution—especially the Fifth Amendment and the celebrated liberty interest therein—has prevailed above the INA in cases of conflict.  Should Laken Riley indeed come to pass, these cases can be invoked again—as can principals against retroactivity.  It’s a bit of an aside, but I’m thinking here of the Fifth Circuit case of Lopez-Ventura v. Sessions, 907 F.3d 306, 313 (5th Cir. 2018), in which the Fifth Circuit refused to presume the INA’s definition of “controlled substance” applied retroactively, and stated that presumption against retroactivity was “a legal doctrine centuries older than our Republic.”

As I was preparing today’s blog, I remembered an old 2016 Federal Lawyer column that I wrote when home raids first entered the news.  I found an e-interview I did with pro bono attorney Katie Shepherd, who was managing the “CARA” project at family detention centers.  At the time, she stated, ICE was engaged in a wholesale policy shift from “a policy of deterrence through deportation to a policy of deterrence through detention.”[ix] Public rhetoric has, of course, shifted since that time, and now we are looking at a policy of terror and retribution, in which detention is but one tool.  My hope is that everyone will remember that our constitution is still here; and that, even very recently, it’s been applied in the context of non-citizen detention.  In the midst of this blog, I snuck in a primer on all the essential legal standards governing challenges to detention.  I hope, though, that not everyone reading will have to use it.

 

End Notes

[i] https://nipnlg.org/sites/default/files/2024-05/2024_Guide-Obtaining-Release-Imm-Detention.pdf (accessed Jan. 20, 2025).

[ii] https://tinyurl.com/3sjb2u4j (accessed Jan. 20, 2025).

[iii] The general criteria for release is that “such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.”  8 C.F.R. § 1236.1(c)(8) (ecfr.gov) (accessed Jan. 20, 2025).

[iv] As the Second Circuit puts it bluntly, “[t]he BIA is required to follow its own precedent.”  Paucar v. Garland, 84 F.4th 71, 80 (2d Cir. 2023).

[v] “When an alien who, having been arrested and taken into custody, has been released, such release may be revoked at any time in the discretion of the district director, acting district director, deputy district director, assistant district director for investigations, assistant district director for detention and deportation, or officer in charge (except foreign), in which event the alien may be taken into physical custody and detained. If detained, unless a breach has occurred, any outstanding bond shall be revoked and canceled.”

[vi] See, e.g., Matter of Garvin-Noble, 21 I&N Dec. 672, 699 (BIA 1997) (applying Sugay, describing “the authority of the Service to revoke or redetermine a bond or terms of release when circumstances involving a threat to the community come[] to light even after the Immigration Judge or the Board has rendered a decision.”

[vii] https://cilacademy.org/wp-content/uploads/2021/08/Practice-Advisory-Nuts-and-Bolts-Imm-Detention-Habeas.pdf (accessed Jan. 20, 2025).

[viii] ACLU & Asian Americans Advancing Justice, Practice Advisory: Constitutional Challenges to Mandatory Detention after Nielsen v. Preap (Jul. 2019), https://www.aclu.org/sites/default/files/field_document/2019_07_06_preap_advisory.pdf (accessed Jan. 20, 2025).

[ix] Email interview with Katie Shepherd, CARA Pro Bono Project, Mar. 3, 2016.  The “CARA” project was a coalition group of numerous agencies, including the Catholic Legal Immigration Network and the American Immigration Lawyers Association.  https://wafmag.org/2016/06/cara-family-detention-pro-bono-project/ (accessed Jan. 20, 2025).

⚖️🛡️⚔️ ROUND TABLE ISSUES LETTER TO THE SENATE ON LAKEN RILEY ACT!

Laken Riley Senate Letter

Velasco-Lopez As-Filed Amicus Brief

January 15, 2025
We are former Immigration Judges and former Appellate Immigration Judges of the Board of
Immigration Appeals. Members of our group were appointed to the bench and served under
different administrations of both parties over the past four decades. Drawing on our many years
of collective experience, we are intimately familiar with the workings, history, and development
of the immigration court from the 1980s up to present.
The Laken Riley Act presently before the Senate contains provisions for mandatory detention of
non-citizens charged with certain crimes. We have been asked in the past to weigh in as amici in
federal litigation on the impact of detention on the working of the Immigration Court system. We
would like to share our expert views on the topic given its application to the Laken Riley Act.
In 2020, we served as amici in a case before the U.S. Court of Appeals for the Second Circuit,
Velasco Lopez v. Decker, 978 F.3d 842 (2d Cir. 2020). Our full brief is attached, and we
summarize some of the points we made regarding detention below.
First, it is important to realize that non-citizen respondents in removal proceedings are not
afforded the rights enjoyed by defendants in criminal proceedings. In Immigration Court, there
are no limitations on the Government’s ability to detain respondents, and no right to a court
appointed attorney. For those non-citizens who are eligible for bond hearings, there is no
consideration of the respondent’s financial circumstances as a factor in setting the bond amount. 1
Furthermore, there is no Sixth Amendment right to a speedy trial, and a very limited right to seek
judicial review.
Second, when we discussed in our 2020 brief the strain detention places on an already
overburdened Immigration Court system, we cited a backlog of under one million cases. Today,
1
An exception exists only within the jurisdiction of the U.S. Court of Appeals for the Ninth Circuit,
which requires consideration of financial ability to pay a bond. See Hernandez v. Sessions, 872 F.3d 976
(9th Cir. 2017).
the backlog has grown to 3.6 million, an increase of more than 350 percent. Thus, our 2
previously stated concerns about the impact of more cases in which too few judges hear cases
involving highly complex legal issues, and in which most hearings require interpreters, have
become far more urgent. We also note an increase in the number of non-citizen respondents in
Immigration Court who are unrepresented by counsel. As we stated in our brief, detention creates
a significant barrier to obtaining counsel, with detained respondents far more likely to be
unrepresented. 3
Based on our many years of experience on the bench, the increase in the number of cases on
detained dockets would greatly hamper any attempt to decrease the presently staggering case
backlog. As noted, the need for interpreters can easily double the length of hearings, and increase
the chance of translation errors in cases in which nuance can be determinative. Furthermore, the
growing number of pro se respondents, many of whom have no experience with or understanding
of how legal processes work, or of what is required of them to prevail in their claims for relief,
creates additional burdens on Immigration Judges charged with ensuring that each respondent
receives a fair hearing, including the right to present all applications for relief.
Immigration Judges are therefore required to carefully explain the process, through an
interpreter, to unrepresented respondents, whose detention greatly hampers their ability to defend
themselves by providing them with very limited ability to seek legal guidance, conduct research,
or gather documents or witnesses.
Our many decades of experience has also taught us the benefits of allowing judges to assess on a
case-by-case basis the danger posed to society and the likelihood that the individual will appear
for future hearings.
As we stated in our attached brief:
Fifty years ago, the Board of Immigration Appeals (“BIA”) stated that “[i]n our system of
ordered liberty, the freedom of the individual is considered precious. No deportable [non-
citizen] should be deprived of his liberty pending execution of the deportation order
unless there are compelling reasons and every effort should be made to keep the period of
any necessary detention to a minimum.” Matter of Kwun, 13 I. & N. Dec. 457, 464 (BIA
1969).
2
See Congressional Research Service, Immigration Courts: Decline in New Cases at the End of FY2024
(Nov. 26, 2024) (available at https://crsreports.congress.gov/product/pdf/IN/IN12463) at 1 (stating that
the Immigration Court backlog “exceeded 1 million for the first time in 2019…and was approximately 3.6
million at the end of FY2024.”).
3
This is in part due to the fact that detention centers are often located far from cities with a sufficient
number of immigration lawyers; representing a detailed client from hundreds of miles is often untenable.
This goal is best accomplished by allowing experienced Immigration Judges to reach case-by-
case determinations regarding the need for detention.
We hope that Senators will take the above considerations into account in their deliberations
regarding the Laken Riley Act.
For additional information, contact Hon. Eliza C. Klein, Immigration Judge, Miami, Boston,
Chicago, 1994-2015; Senior Immigration Judge, Chicago, 2019-2023, at elizakl@gmail.com.

Knightess
Knightess of the Round Table

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

🇺🇸Due Process Forever!

PWS

01-15-25

ASYLUM AT THE END OF THE BIDEN ADMINISTRATION: A Disturbing, Dangerous, Dehumanizing Legacy of Betrayal, Missed Opportunities, and Abandonment of Humane Values! 

Border Death
This is a monument for those who have died attempting to cross the US-Mexican border. Joe Biden did lots of good things for Americans, helping create a robust, resilient economy that is the envy of the world (except for American voters and the MSM). Yet, his failure to stand up for the rights and contributions of asylum seekers and other immigrants leaves a deadly and disturbing legacy for Trump to double down upon! Both parties and the “mainstream media” have pointedly ignored the deadly and devastating human consequences of their “bipartisan war on asylum.” But, future historians are unlikely to overlook their immoral and often illegal actions.© Tomas Castelazo, www.tomascastelazo.com / Wikimedia Commons / CC BY-SA 3.0

TEXT.1- ASYLUM AT THE END OF THE BIDEN ADMINISTRATION — December 23, 2024

Here’s the text without the footnotes. To get the “footnoted version,” please click on the above link.

ASYLUM AT THE END OF THE BIDEN ADMINISTRATION: A Disturbing, Dangerous, Dehumanizing Legacy of Betrayal, Missed Opportunities, and Abandonment of Humane Values! 

Originally Delivered in December 2024

By Paul Wickham Schmidt

Successive Administrations, aided by Congress and abetted by the Federal Courts, have broken the U.S. asylum adjudication system almost beyond recognition. Yet, they now have the audacity to blame their victims, hapless asylum applicants and their dedicated, hard working advocates, for the Government’s grotesque failures to carry out their statutory and constitutional duties to establish a fair, efficient, timely, humane, accessible system for asylum adjudication in the U.S. and at our borders.

I. INTRODUCTION & DISCLAIMER

Please listen very carefully to the following important announcement. 

Today, you will hear no party line, no bureaucratic doublespeak, no sugar coating, no BS, or other such nonsense. Just the truth, the whole truth, and nothing but the truth, of course as I define truth and see it through the lens of my five decades of work with and in the American immigration system.

I hereby hold you and anybody else associated with this event harmless for my remarks. The views expressed herein are mine, and mine alone, for which I take full responsibility. They also do not represent the position of any group, organization, individual, or other entity with which I am presently associated, have associated with in the past, or might become associated with in the future.  

Because we are approaching Christmas, I have a special gift for each of you. It’s a free copy of my comprehensive 3-page mini-treatise entitled “Practical Tips for Presenting an Asylum Case in Immigration Court.” 

I also want to caution you that much of what I’m telling you about asylum might become “OHIO” — that is “of historical interest only.” That’s because many believe that that if not living at the end of time, we are living at the end of asylum, at least as we know it. 

America has elected a party that basically pledges to destroy asylum along with many of our other precious democratic institutions. But, tragically, the so-called “opposition party” is running scared and has gone “belly up” on asylum and human rights. Not only are they unwilling to defend legal asylum seekers, but they are actively engaged in dismantling the legal asylum system at our borders with some of the worst regulations and policies since the enactment of the Refugee Act of  1980. 

It’s truly an appalling situation. We seem determined to repeat some of the most disgraceful parts of our history. I call it a “return to 1939” when xenophobia, myths, and lies about our ability to absorb refugees sent the German Jews aboard the notorious “St. Louis” back out to sea, where most of them eventually perished in the Holocaust. I ask you: “Is that really the world you want for yourselves and future generations?”

What I’m giving you today, is a very broad overview of U.S. asylum law. By necessity, there are many complexities, exceptions, special situations, and variables that I will not be able to cover in this type of survey. 

II. REFUGEE DEFINITION

I’m going to start with the definition of the term “refugee” in the Immigration and Nationality Act (“INA”) which was derived in large part from the U.N. Convention on Refugees, created after World War II to deal with the unacceptable response of Western democracies to the mass persecutions that lead directly to the Holocaust. Sadly, how soon we forget where we came from, in more ways than one.

Basically, a “refugee” is:

any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, . . . . The term “refugee” does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion . . . . 

I have omitted special provisions relating to statelessness, certain refugees in their native countries, and so-called “coercive population control.” 

Under U.S. law, the term “refugee” generally refers to those who apply under our statutory overseas refugee system. Refugees who apply for protection from within the U.S. or at our border are referred to as “applicants for asylum” or, if successful, “asylees.” It is this group that I will discuss further.

III. ELEMENTS

    1. Persecution

Interestingly, the Act does not define the key term “persecution.” Courts and administrative authorities are literally “all over the place” on determining where “mere discrimination” or “harassment” ends and “persecution” begins. These determinations are often referred to as “rise to the level.” 

During my days on the bench, at both levels, I observed some judges who, remarkably, purported to believe that having a coke bottle shoved up your rectum, being made to stand in a barrel of cold water for days, or being beaten “only” a few times with a belt buckle was “just another bad day at the office” for hapless asylum seekers. I, on the other hand, was a little less immune to pain, my own or others. 

On the trial bench, I eventually found helpful guidance in a definition developed by the well-known former 7th Circuit Judge and prolific legal scholar Judge Richard Posner. In distinguishing among the three foregoing concepts, he stated:

Persecution involves, . . . the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity —[for example,] refusing to allow a person to practice his religion is a common form of persecution even though the only harm it causes is psychological. Another example of persecution that does not involve actual physical contact is a credible threat to inflict grave physical harm, as in pointing a gun at a person’s head and pulling the trigger but unbeknownst to the victim the gun is not loaded.

B. Protected Grounds

Significantly, not all forms of severe harm, even those “rising to the level of persecution” under the foregoing definition, qualify an individual for asylum. The persecution must be “on account of” one of the five so-called “protected grounds:” race, religion, nationality, political opinion, or membership in a particular social group.

Of these, the first four are fairly straightforward. It’s the last ground “membership in a particular social group,” that is “where the action is” these days. 

That’s because the meaning of particular social group or “psg” is not readily apparent, and therefore somewhat malleable. For advocates, this presents a chance to be creative in behalf of clients. But, for government bureaucrats, including Immigration Judges, it often creates the fear of “opening the floodgates” and therefore becomes something that should be restrictively construed and sparingly applied.

My decision in Matter of Kasinga,  represents an early positive application of the “immutability or fundamental to identity” characteristic to grant psg protection to a young woman who feared female genital mutilation, or “FGM.” Since then, however, following the so-called “purge” of the Board of Immigration Appeals (“BIA”) by Attorney General Ashcroft, the requirements of “particularity” and “social distinction” have been added in an attempt to restrict the psg definition. 

C. Two schools of thought

As we move further into the refugee definition, I will introduce the “two schools of thought” or philosophies prevalent among government asylum adjudicators, including Immigration Judges.

Some believe that asylum law should be construed and applied to further the aims and purposes of the Refugee Convention and the Refugee Act: that is, to generously protect individuals fleeing persecution whenever possible. I’ll call this school “Mother Hens.”

The other school consists of those who believe that asylum is a “loophole” to “normal immigration” and therefore must be construed as narrowly and restrictively as possible in support of DHS enforcement. I call this school “Dick’s Last Resorters.” 

Since the Immigration Judiciary and the Asylum Office come disproportionately from the ranks of former prosecutors or government officials, “resorters” overall outnumber the “hens.” Conveniently, denying asylum is generally thought to be less likely to come to the attention of, and annoy or displease, the political officials who control both the Asylum Office and the Immigration Courts. Therefore, denial is often perceived to be more “career friendly” than being in the forefront of those generously granting protection. 

D. Nexus

 

Since many applicants are able credibly to establish that they have, or will face, severe harm upon return, the immigration bureaucracy has developed several methods for limiting the number of successful claims.

One is by “downplaying” the level of harm and straining to find that it “does not rise to the level of persecution.” That explains the “coke bottle up the rectum not a problem if you can still walk afterwards group” that I mentioned earlier. 

Another way of  denying facially legitimate claims involving severe harm is to actively search for ways to “disconnect” that harm from any of the five protected grounds. This works even in cases where the harm is very severe, clearly rising to the level of persecution. This focus on causation is called “nexus.”  

The “no nexus approach” often requires the adjudicator to ignore or circumvent the applicable doctrine of  “mixed motive.” By law, a protected ground does not have to be the sole, primary, or even predominant ground for the persecution. It is enough if a protected ground is “at least one central reason” for persecuting the applicant. But, by mis-characterizing the protected motive as merely “trivial” or “tangential” an adjudicator can attempt to avoid “mixed motive.” 

Normally, in law, an adjudicator would apply the “but for” test for determining causation. That is, if the harm would not have occurred “but for” the characteristic, then a chain of causation for that factor is established. 

However, in immigration, the rules have been turned upside down so that the adjudicator is encouraged to look for any “non-protected motive” and characterize that as the real overriding cause or motivation. Thus, in one infamous precedent involving harm to a family involved in a land dispute,  the BIA found, in the words of my esteemed colleague retired Judge Jeffrey S. Chase, that “another non-protected ground renders the family membership ‘incidental or subordinate’ and thus lacking the nexus required for asylum.”   In other words, the BIA converted the “but for” test that likely could have been met here into an “anything but” test that searched for a non-protected motive to defeat the claim.

E. Burden of proof/standard of proof

Moving on, the applicant has the burden of proof on asylum. To carry this burden, they must show a “well-founded fear” of future persecution. 

The Supreme Court in 1987 established that the standard for a well-founded fear was significantly less than a probability, the position unsuccessfully argued by the Government, and suggested that it could be as low as a 10% chance.   

Following that decision, the Board of Immigration Appeals, the “BIA,” the highest administrative tribunal in immigration, expressed the well-founded fear standard as a “reasonable likelihood” or “reasonable person,” a familiar legal rubric.  In doing so, the BIA specifically noted that asylum could be granted even where persecution is substantially less than probable. In other words, the asylum applicant should be treated generously in accordance with the “benefit of the doubt” described in the U.N. Handbook for adjudicators under the Refugee Convention, a guide that actually was given significant weight by the Supreme Court.  

Despite these overt expressions of legal generosity in applying the well-founded fear standard, the reality has proved quite different. Some Immigration Judges, BIA Appellate Judges, and Circuit Court Judges do generously adjudicate asylum claims in accordance with these legal precedents. But, for many, these standards have become mere “boilerplate citations” that are too often not actually followed in practice. Thus asylum denial rates, even for substantially similar cases, have varied widely depending on the predilections of individual Immigration Judges. 

F. Past Persecution

You might remember that, in addition to referencing a well-founded fear of future persecution, the refugee definition also states that “persecution” can be a basis for asylum eligibility. This has been taken to refer to “past persecution” as a potentially independent basis for establishing asylum eligibility.

In one of the few administrative actions that actually benefits asylum seekers, and helps implement a more generous and legally appropriate construction of well-founded fear, there are regulations that combine the concepts of past and future persecution. 

Thus, an individual who can establish that they have suffered past persecution is entitled to a regulatory presumption of a future well-funded fear of persecution in that country. The burden of proof then shifts to the DHS to rebut that presumption.

The DHS can achieve this in two ways. One is to show that the applicant has a “reasonably available internal relocation alternative” within the country that would allow them to avoid future persecution. The other is to demonstrate “fundamentally changed circumstances” that would obviate the well-founded fear of future persecution.

However, even if the DHS succeeds in rebutting the presumption, asylum may still be granted in the absence of a current well-founded fear, as a matter of discretion, in two situations.

One is if the applicant can establish “other serious harm” — not persecution but harm of a similar level — if returned to their native country. This can be things such as natural disaster, famine, civil disorder, or environmental catastrophe.

The other is if the applicant can show “compelling reasons” arising out of the severity of the past persecution. These are sometimes known as “Chen grants,” after a landmark BIA precedent.  In that case, asylum was granted to an applicant whose family had suffered terribly during China’s “cultural revolution,” even though the cultural revolution was by then over. 

These are also sometimes described as discretionary grants of “humanitarian asylum.” However, it is wrong to assume that Immigration Judges have a general authority to grant asylum in any humanitarian situation. 

These discretionary grants are available only if and when an applicant successfully establishes past persecution and the DHS rebuts that presumption. As we can see, therefore, the concept of “past persecution” is important and carries a number of important benefits for an applicant who can establish it. I will now turn to an additional benefit. 

G. Countrywide Fear

Normally, the burden is on an applicant to establish that the well-founded fear of persecution operates “countrywide.” In other words, that they can not reasonably avoid persecution by relocating internally. 

However, in two common situations under the regulations, the applicant enjoys a rebuttable presumption that the danger exists countrywide. One is where the government is the persecutor. The other is where the applicant establishes past persecution. In both these instances, the burden would then shift to the DHS to rebut the presumption.

H. Other Key Elements: Credibility, Corroboration, Pattern Or Practice

In any asylum adjudication, the credibility of the applicant is a key factor.  Although the regulations state that credible testimony could be enough to support asylum eligibility, this is more theoretical than real. In most asylum cases, a combination of credible testimony supported by reasonably available corroborating evidence will be necessary for success.

There is also a regulatory provision allowing individuals to qualify for asylum, if they can establish a “pattern or practice” of persecution in their home countries. All of the foregoing are important and complex concepts that could easily be the subject of a full class or even a course. Needless to say, they are beyond the scope of this presentation.

I.  Exclusions From Asylum

There are a number of categories of individuals who are specifically excluded from asylum eligibility by statute or regulation. Some of these provisions relate directly to exclusions contained in the Refugee Convention. Others do not.

Individuals are ineligible if they are “firmly resettled” in another country. 

They are also ineligible if they fail to file for asylum within one year of arriving in the United States. There are exceptions for “exceptional circumstances” directly related to the delay in filing and “materially changed circumstances.”

Persecutors, such as Nazi war criminals, are excluded, as are terrorists and national security risks. It’s worth remembering, however, that “one person’s terrorist could be another’s ‘freedom fighter.’” Ironically, George Washington and other leaders of the American Revolution would be “terrorists” under the INA’s expansive definition.

Another significant class of ineligibles are individuals who have committed “particularly serious crimes” in the U.S. Those convicted of “aggravated felonies” under state or federal law — a statutorily defined category that covers some crimes that are neither felonies nor particularly “aggravated” — are specifically covered by this definition. But, other crimes may also be found to be “particularly serious” on a case by case basis involving the weighing of the circumstances surrounding the crime.

Additionally, some individuals who had an opportunity to apply for asylum in what is deemed to be a “safe third country” are also excluded from asylum in the U.S. Right now, the only specifically designated “safe third country” is Canada. Nevertheless, both the Trump and Biden Administrations have de facto treated other countries, some demonstrably dangerous and without functioning asylum systems, as “safe” for various purposes without regard to the law or reality.

Moreover, in what are known as the “Death to Asylum Regulations,” promulgated just before they left office in 2021, the Trump Administration tried to expand the exclusions from asylum to include just about everyone who conceivably could have otherwise qualified. The implementation of these regulations remains enjoined by court order. Nevertheless, the Biden Administration was able to implement forms of some of these exclusions at the border. Undoubtedly, the attempt to finally kill off asylum will be renewed under “Trump 2.0.”

J. Discretion 

The granting of asylum is not mandatory. Individuals who “run the gauntlet” to establish eligibility must still merit a favorable exercise of discretion from the adjudicator. 

The standard for exercising discretion in asylum cases was previously set forth in my decision in Matter of Kasinga.  Consistent with the generous purposes of the Convention and the Refugee Act, asylum should be granted to eligible applicants in the exercise of discretion in the absence of any “egregious” adverse factors.

The previously-mentioned “Death to Asylum Regulations” would have encouraged Immigration Judges and Asylum Officers to deny asylum in the exercise of discretion to almost anyone who might have survived their expanded proposed categories of “mandatory exclusions.” Although those particular regulations remain enjoined, the Biden Administration has invoked various presumptions and restrictions that use discretion to basically shut out most applicants not using their defective “CBP One App” to schedule an appointment at a port of entry. 

IV. BENEFITS OF ASYLUM

Among the many benefits of asylum, an asylee is authorized to work in the U.S., can bring in dependents derivatively, can travel with a Refugee Travel Document (although not back to the home country), and has automatic access to the process for a green card after one year of “good behavior.” That, in turn, eventually can lead to eligibility for citizenship. 

V. WITHHOLDING OF REMOVAL AND CONVENTION AGAINST TORTURE (“CAT”)

Those denied asylum for mandatory or discretionary reasons can still apply for withholding of removal and protection under the Convention Against Torture, affectionately known as the “CAT!” Although similar in some ways to asylum, there are some major differences, which I can’t go into in detail here.

Generally, withholding and CAT have higher standards to qualify and are mandatory, rather than discretionary in nature. However, they offer less advantageous protection in a number of ways: they don’t protect against removal to third countries; they don’t allow the recipient to bring dependents; they provide no permanent status, path to a green card, or route to U.S. citizenship; they require individual applications for work authorization; and they don’t allow travel. In fact, departure from the U.S will execute the underlying order of removal and bar reentry!

For many who will be denied asylum at the border and beyond under restrictions imposed by Biden and Trump, withholding and CAT, notwithstanding their drawbacks, might become the sole remaining methods for securing protection from persecution and or/torture. 

VI. ACCESS TO THE SYSTEM

The INA states that: 

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum . . . .

Individuals arriving at our border are supposed to be asked about fear of return and screened by a trained Asylum Officer for “credible fear” a lesser standard that determines if they have a plausible claim that should be given a full adjudication by EOIR.

Within the U.S., individuals can apply for asylum “affirmatively” to the USCIS Asylum Office or “defensively” before the Immigration Court. Those “affirmatives” not granted by the Asylum Office after interview are “referred” to EOIR for a full hearing on their application.

These very straightforward statutory rights have been violated in numerous ways by the last two Administrations, so much so that the asylum system at border is close to extinction.

We don’t have time to go into all the complex and often incomprehensible details of this scurrilous “bipartisan attack on the legal right to asylum.” Basically, the Biden Administration recently finalized highly restrictive regulations that most experts find blatantly illegal. Essentially, anybody who applies for asylum between legal ports of entry is “presumed ineligible” unless they meet narrow exceptions.

The only somewhat viable alternative is waiting in extremely dangerous, and often squalid, conditions in Mexico to schedule an appointment through a notoriously inadequate “CBP One App” — a process that can take many months, at best. However, the incoming Trump Administration irrationally has pledged to eliminate CBP One thus effectively cutting off access to asylum at the border.

Disgracefully both the Trump and Biden Administrations have encouraged Mexico, Panama, and other countries in Central America to stop migrants from reaching the U.S., often using force, without any access to fair asylum adjudication. Sometimes, the U.S. actually funds these lawless deportations by so-called “transit countries.”

VII. WOES OF ADJUDICATING BODIES

Both the Asylum Office and EOIR are running ungodly backlogs, including well over one million un-adjudicated asylum cases at each agency! Additionally, EOIR has an overall backlog of Immigration Court cases approaching four million, and growing as we speak.

Both the Asylum Office and EOIR suffer from endemic inefficiency, antiquated procedures, severe quality control issues, shortage of staff, and chronic leadership problems that Administrations of both parties have failed to address in a serious manner. In fact, each of the last few Administrations has aggravated these problems in many ways, leading to an astounding level of dysfunction and systemic unfairness.

Moreover, in Immigration Court, there is no right to appointed counsel, despite the “life or death” stakes. So, many applicants are forced to face the system unrepresented or with woefully inadequate representation. Detention of many asylum seekers in substandard, inherently and intentionally coercive conditions, in obscure locations compounds these problems. EOIR also has a huge inconsistency problem with individual Immigration Judge asylum grant rates “ranging” from 0-99%.

Somewhat ironically, despite all of the anti-asylum bias and roadblocks in the system, individuals fortunate enough to get well-qualified representation, and to have applied before the onslaught of “death to asylum regulations and policies,” win their asylum cases on a daily basis. This adds to the “crap shoot” atmosphere for “life or death” justice that disgracefully has been fostered by Administrations of both parties. Nevertheless, we must remember that even in these challenging times, there are many thousands of lives out here that can be saved through great lawyering!

VIII. CONCLUSION

In summary, successive Administrations, aided by Congress and abetted by the Federal Courts, have broken the U.S. asylum adjudication system almost beyond recognition. Yet, they now have the audacity to blame their victims, hapless asylum applicants and their dedicated, hard working advocates, for the Government’s grotesque failures to carry out their statutory and constitutional duties to establish a fair, efficient, timely, humane, accessible system for asylum adjudication in the U.S. and at our borders.

Nobody in the “power structure” of any branch of the Government, in either party, appears seriously interested in fixing this dysfunctional travesty of American justice. The result has been a series of gimmicks, restrictions of access, skewed results, and failed “deterrents” that have put lives in jeopardy and undermine our entire justice system.

One political party “gins up” fear mongering, hate, and lies about asylum seekers in an attempt to eradicate them for political advantage. The other party is too cowardly to defend them.

Few, if any, politicos on the national level have the moral courage and clear vision to mount a well-justified, evidence-based defense of asylum seekers and other migrants. Likewise, few of them advocate for investing in achievable improvements in the system. Instead, they seek partisan political advantage, on the backs of the desperate and disenfranchised, by eagerly and cynically pouring money and manpower into cruel, ultimately ineffective, enforcement and “deterrence” gimmicks. 

The latter, not incidentally, have spawned a highly profitable and politically potent industry that benefits from every deadly, failed border deterrence “enhancement.” No wonder positive change and creative problem solving are so elusive, and so many of our politicos lack the guts effectively to protect immigrants’ lives, human dignity, and rights at the border and beyond!

More than 50 years of experience working in our immigration systems, at different levels, and from many angles, tell me the following inalienable truths:

  • Human migration is real;
  • Forced migration is exactly that;
  • It won’t be stopped by walls, prisons, deterrents, or other cruelty;
  • Asylum is a human and legal right; 
  • Immigrants are good for America; and
  • Due process for all persons in the U.S. is essential. 

My time on the stage is winding down. But, yours, my friends, is just beginning. I call on you to join our New Due Process Army (“NDPA”), use your skills, commitment, and power to resist the haters, oppose the wobbly enablers, expose political bullies who trade away lives and rights that aren’t theirs, and fight to finally deliver on our nation’s yet-unfulfilled promise of due process, fundamental fairness, and equal justice for all in America!

Thank you for listening, and due process forever! 

(01-09-25.1)

 

 

 

 

 

 

 

 

🇺🇸 REMEMBERING THE CARTER YEARS

The Carter Years

By Paul Wickham Schmidt

President Jimmy Carter
Jimmy Carter
1924-2024
39th President of the U.S.
Official White House Photo
Public Realm

President With An “Afterlife”

Jimmy Carter (1924-2024), the 39th President of the United States is an anomaly among modern U.S. Presidents. He is probably better known and more widely respected for his post-Presidency achievements and work than for his accomplishments during his single four-year term (1977-81). 

After losing the 1980 election to Ronald Reagan in a landslide, Carter devoted himself to humanitarian work on a national and international scale. He founded the Carter Institute. He and his wife Rosalynn (1927-2023) were famous for their never-ending work personally of building housing for communities in need for Habitat for Humanity. 

Carter wasn’t just a “mouthpiece,” promoter, or financial supporter. He and Rosalynn could often be found with their sleeves rolled up digging, pounding, sawing, and painting with the rest of the crews. Individuals in the District of Colombia fondly remember him working side-by-side with community members to build housing that they still proudly reside in!

Carter is generally regarded as one of the most intelligent and fundamentally decent Presidents. However, his term was largely viewed as unsuccessful at the time. Economic woes, an energy shortage, the Iranian hostage crisis, tensions with the Soviet Union, and the Cuban boatlift overshadowed his meaningful achievements such as the Camp David Peace Accords and creation of the Department of Education.

As a career civil servant, I worked for the Carter Administration in several senior positions at the “Legacy” Immigration and Naturalization Service (“INS”). Although I never met the President in person, I certainly saw his facsimile signature on many official documents. 

One of the first of these was a Presidential Pardon for Vietnam Era Draft Evaders that he issued shortly after taking office. As the then legislative and regulations expert in the INS Office of General Counsel, I was charged with figuring out the practical effect of the somewhat vague language of the pardon on cases of former U.S. citizens who had renounced their citizenship abroad, primarily in Canada, during the war years.

Human Rights Focus

The Carter Administration was the only one in my lifetime that made human rights around the world a key focus of policy. While it was a great and noble idea in theory, it often clashed with the political and international realities of governing during the waning stages of the Cold War. 

From my “deep in the bureaucracy” perspective, the Carter Administration also too often exhibited a “tone deafness” when it came to dealing with the “old line Democrats” and Committee Chairs who then controlled Congress. For example, I was asked to draft a comprehensive legalization and employer sanctions immigration bill, but instructed not to consult with any Committee staff. Needless to say, the final product went over like a lead balloon. As I remember, the Dem Committee Chairs balked at even introducing the bill and it got a “DOA reception” from both Dems and the GOP. 

Leonel Castillo
Leonel Castillo
1939-2013
Commissioner of Immigration (1977-1979)
USCIS Archives
Public Realm

INS Commissioner Leonel Castillo: The Fall of a Rising Star

It probably didn’t help that Carter’s Commissioner of Immigration was Leonel Castillo. Immediately prior to appointment, Castillo was the City Controller of Houston, the first Hispanic-American to hold the job, and was considered a “rising young star” in Texas Democratic politics. (Yes, there was such an animal in those days.)

Unfortunately, it wasn’t a very good fit. Perhaps, it was simply “mission impossible” for an Hispanic leader then. Leonel was mostly interested in getting out, pressing some flesh, and the “big picture” of immigration. But, many of INS’s problems and challenges involved “nitty gritty” technical issues, fending off interference from a small army of “whiz kid” special assistants at the DOJ, and dealing with the always prickly Congressional Committees who controlled agency funding. 

This wasn’t Leonel’s strong suit. He surrounded himself with his own group of young special assistants, executive assistants, and analysts, many from Texas, who didn’t “mesh well” with the career bureaucrats in the INS Central Office, the largely “good old boy” field management structure, the egos in the DOJ, and the “Kings of the Hill.” 

Leonel never established rapport with Sen. Ted Kennedy, then the most recognizable Democrat in Congress and, beginning in 1978, Chair of the powerful Senate Judiciary Committee, which exercised INS oversight. Kennedy later went on to unsuccessfully challenge President Carter for the 1980 Democratic Presidential nomination. Nor did he have a good working relationship with powerful Chair Peter Rodino (D-NJ) of the House Judiciary Committee, who had been deeply involved in INS issues for many years.

Additionally, Leonel had a rocky relationship with the formidable Rep. Elizabeth Holtzmann (D-NY), the Chair of the House Immigration Subcommittee. Holtzmann was “all over INS” for what she deemed to be inadequate efforts to locate, investigate, and denaturalize former Nazi war criminals living in the U.S. who had been erroneously admitted as refugees following World War II. 

At the time, I was responsible for drafting Leonel’s congressional testimony and accompanying him to congressional hearings. As he was struggling through one contentious hearing with Chairperson Holtzmann, Leonel inadvertently knocked over the water pitcher, soaking the witness table. Holtzmann reached under her dais, grabbed a towel, and unceremoniously threw it at the hapless Commissioner with an implicit admonishment to “clean up his mess.” Committee staff later quipped that perhaps it was time for INS to “throw in the towel.” 

Needless to say, that wasn’t one of the “high points” in the Carter Administration’s dealings with Congress. Chairperson Holtzmann eventually succeeded in wresting control of all Nazi immigration investigations and prosecutions away from the INS and vesting it in a newly-created Office of Special Investigations (“OSI”) in the DOJ’s Criminal Division. 

While my “political bosses” tended to view this as a “bureaucratic defeat,” I told them it was anything but. Not having to deal with the Chairperson on Nazi investigations on a daily basis turned out to be a huge “plus” for INS, particularly the OGC, where the “Nazi Unit” was then located. It was well worth the “loss” of the half-dozen positions to the Criminal Division, which then greatly expanded the OSI. 

David Crosland
Hon. David Crosland
American Jurist, Senior Executive, Lawyer, Teacher
1937 – 2022
PHOTO: Alabama Law

General Counsel/Acting Commissioner David Crosland

At the end of the Ford Administration, INS General Counsel Sam Bernsen was serving in the position as a “rehired annuitant.” That meant technically he had already retired and was continuing to serve on a special arrangement. The new Administration “finalized” Sam’s retirement and appointed a new General Counsel, David Crosland, a civil rights attorney from Atlanta, Georgia with ties to the “Georgia Mafia” that surrounded Carter and his first Attorney General, former Fifth Circuit Judge Griffin Bell. 

Dave had once worked in the Civil Rights Division of the DOJ under then AG Ramsey Clark. After Carter left office, Dave remained in the immigration field for the rest of his life. Indeed, we were both Immigration Judges at the Arlington Immigration Court, and he was still on the bench at the Baltimore Immigration Court at the time of his death in 2022.

Shortly after Dave’s appointment as General Counsel, the then Deputy General Counsel, Ralph Farb was elevated to the Board of Immigration Appeals (“BIA”). I became Dave Crosland’s Deputy.

Sam Bernsen, however, landed on his feet. Although he had 40+ years of Government service, he was relatively young, perhaps 57, having begun his career as a messenger at Ellis Island in his late teens. After a short period of private practice with Larry Latif (who later was my law partner at Jones Day), he became a name and managing partner of the Washington, D.C. Office of Fragomen, Del Rey, and Bernsen, a leading immigration “boutique.” I later succeeded him in that position in 1992. Immigration is a small world!

There was an old anecdote (perhaps apocryphal) that Judge Bell once said that at INS, “Castillo represented the White House, Deputy Commissioner Mario Noto represented House Judiciary Chair Peter Rodino, Special Assistant to the Commissioner David Dixon represented Senate Judiciary Chair Jim Eastland, and Crosland represents me!”

Ben Civiletti Succeeds Judge Griffin Bell as AG

Judge Bell eventually gave way to Attorney General Ben Civiletti in 1979. Among the many “Special Assistants” working for AG Civiletti was young Harvard Law grad, Merrick Garland. His meteoric career trajectory occasionally crossed paths with my role at INS. I remember him from those days as a smart, serious, ambitious, earnest guy. 

Civilewti & Staff
Attorney General Ben Civiletti (1979-81) with top DOJ staff including current AG Merrick Garland (5th from left)
PHOTO: NT Times

Also in 1979, Leonel Castillo resigned as Commissioner and returned to Houston to run for Mayor. But, his tenure at INS proved no help. He finished third in that race and was unsuccessful in three additional bids for local elective office. INS proved to be a political “career killer” rather than a “career enhancer.” 

Meanwhile, no successor to Castillo as Commissioner was ever nominated and confirmed during the Carter Administration. My “boss,” David Crosland became the Acting Commissioner of INS, and I became the Acting General Counsel, a situation that continued for the balance of the Carter Administration. 

For me, the Carter Administration was one of the formative periods of my legal career. At 31, I became the top legal official at INS which involved running the nationwide legal program, advising the Acting Commissioner and other senior managers at INS, and also being the “point person” for Immigration litigation, legislation, and other issues with the Attorney General, the Solicitor General, and heads of other DOJ divisions and offices. 

I remember once returning to my office after a long day of meetings to be handed a stack of yellow message slips (no voice mail or e-mail in those days) by our receptionist. One thing that I always did at the OGC and that served me well thereafter was to faithfully return all phone calls and answer all my personal correspondence. 

The receptionist told me in an excited voice that  “Mr. Letti’s” office had been trying to get ahold of me all day, and that I had to return that call first! I puzzled over who “Mr. Letti” was, because it didn’t ring a bell, offhand. “You know Mr. Letti,” said the receptionist, “Mr. Benson Letti, (as she had written on the message slip), said it was very important.” Finally, the light bulb went off, “Ah, you mean Ben Civiletti, the Attorney General,” said I. Yes, said the receptionist, “THAT Mr. Letti.” 

Lyudmila Vlasova
Russian ballerina Lyudmila Vlasova was one of the more interesting cases I worked on.
PICTURE: Wikipedia

During 1979, I was involved in a notable incident involving Lyudmila Vlasova , a star Russian ballerina, in a plane halted on the tarmac at JFK. The issue was whether she was leaving the U.S. of her own volition, as her husband, Aleksandr Godunov, also a dancer with the Bolshoi Ballet, had defected and sought asylum in the U.S. (In a strange time warp, in those days a Dem Administration was actually more concerned about individuals being denied their right to seek asylum here than in “deterring” legal asylum seekers from “darkening our doors!”)

Part of the “Plan B” hatched for determining her situation was to designate AG Civiletti as an “Immigration Officer” authorized to detain and examine foreign nationals. I duly drafted up a legal document so designating the A.G. Fortunately, the situation was resolved (she voluntarily departed the U.S.) without resorting to Plan B. Several weeks later, I received the “appointment document” back by mail with a handwritten note by AG Civiletti that said something like: “With thanks and great relief it wasn’t needed!” The 1985 movie “Flight 222” was loosely based upon this incident.

Four Issues That Changed U.S. Immigration: The Refugee Act of 1980; The Cuban Boatlift; The Iranian Hostage Crisis; The INS Attorney Reorganization

Four issues stand out for me from the Carter years. The first was the enactment of the Refugee of 1980. It was the first codification and legal affirmation of our International obligations to refugees and asylum seekers under the United Nations Convention and 1967 Protocol Relating to the Status of Refugees. 

It gave me a chance to work closely with two of my contemporaries in the Administration who later went on to become “intellectual giants” in the field of human rights. One was David A. Martin, then Special Assistant to Patt Derian, the Assistant Secretary for Human Rights and Humanitarian Affairs at the State Department. David went on to become a famous Professor at UVA Law, co-author of leading textbooks, the General Counsel of INS in the Clinton Administration, and Principal Deputy General Counsel of DHS during the Obama Administration (then DHS Secretary Janet Napolitano was his student at UVA Law).

The other was Alex Aleinikoff, then an attorney in the DOJ Office of Legal Counsel. Alex also went on to become a professor, co-author (with David Martin) of textbooks, an INS Senior Executive, Dean of Georgetown Law, and Deputy UN High Commissioner for Refugees.

I also worked closely with Committee staff in Congress, particularly the late Jerry Tinker who was Senator Kennedy’s staffer on the Senate Judiciary Committee. I can still remember getting a phone call one evening from Jerry saying “Schmidt, I’m in a jam. Could you draft me some legislative history for the Refugee Bill and send it over. You know what the Senator wants.” It was sort of a “hinky” request, given the state of relations between the Carter White House and Senator Kennedy. But, I figured it would be “career preserving” to give Jerry a  hand, without mentioning it to anyone else. 

A second major event, unfortunately coinciding the the enactment of the Refugee Act of 1980, was the so-called Mariel Boatlift. INS hadn’t had time to fully implement that Act before we were confronted with another in a long line of “refugee crises.” This one involved Castro’s unexpectedly and temporarily “opening” some ports in Cuba and a flotilla of small boats going from Florida to pick up friends and relatives. 

Cuban Boatlift
The 1980 Cuban Boat lift was a crisis for the Carter Administration that has had lasting impact on U.s. immigration policy, not necessarily for the better.
Official USG Photo
Public Realm

We had to call upon FEMA — who famously introduced themselves as the “Masters of Disaster” — and the Orange Bowl became the initial “processing center” for new arrivals. The vast majority of those who came were quickly screened and released into the community. They eventually were able to get green cards, without applying under the Refugee Act, under the Cuban Adjustment Act of 1966.

However, there was a proportionately small, yet highly visible, group of individuals who had been released from Cuban jails, obviously without documentation of the crimes for which they had been imprisoned. They were processed for possible exclusion and deportation, which invoked the asylum and withholding of removal provisions of the new Refugee Act.

Since INS had no suitable housing for “high risk” criminals, we had to enter agreements with the Bureau of Prisons to reopen some “dormant, high-security facilities” — like the Atlanta Penitentiary and McNeil Island Penitentiary in the State of Washington. Additionally, we were allowed to use military bases such as Fort Chaffee, Arkansas; Fort McCoy, Wisconsin; Fort Drum, New York, and Fort Indiantown Gap, Pennsylvania to detain those suspected of criminal activity who required Immigration Court hearings. The then “Boy Governor” of Arkansas, Bill Clinton, blamed well-publicized escapes from Fort Chaffee as a factor leading to his re-election defeat.

We also lacked sufficient Immigration Judges in those locations to hear the cases. That required an emergency effort to assemble and train a corps of “Temporary Immigration Judges” from the ranks of active and retired Administrative Law Judges and DOJ Attorneys.

The Cuban Boatlift got the Refugee Act of 1980 off to a rocky start. Many of the initial “precedents” on asylum issued by the Board of Immigration Appeals (“BIA”) involved Cuban applicants with criminal records, not the most sympathetic group. That, combined with some sensationalist dramatic portrayals of criminals among the arrivals, such as the movie “Scarface,” starring Al Pacino, hardened attitudes towards refugees generally, while also producing some relatively restrictive initial interpretations of the Act. 

Additionally, the Boatlift ushered in an era of mass long-term immigration detention. While the Boatlift eventually subsided, the phenomenon of large-scale immigration detention has continued to grow over the years. It has become a controversial “staple” of U.S. immigration enforcement and “deterrence.” It has been used, in some form or another, by all Administrations since Carter.

The “Carter experience” also hardened views toward large-scale migration in the Executive Branch, as both politicos and bureaucrats vowed “never again!” During the Reagan Administration, the new and oft-criticized device of “high seas interdiction” was used to stop further vessels from Cuba and Haiti from even reaching the U.S. and invoking the Refugee Act protections. Some individuals were brought to the U.S. after preliminary screening onboard Coast Guard vessels. But, most were returned without hearings (Haitians) or sent to the U.S. base at Guantanamo Bay, Cuba (Cubans).  

A third pivotal event, which also played a role in the demise of President Carter, was the so-called “Iranian Hostage Crisis.” Most of the “action and drama” took place in and around the U.S. Embassy in Tehran. But, there was also a “domestic component.”

Then Attorney General Griffin Bell was shocked to learn that the INS at that time had no national database on the number, location, and status of Iranian students studying in the U.S. This led to new efforts and regulations to require all such Iranian students to “register” with the INS and imposed penalties, including deportation, on those who failed to do so or committed crimes in the U.S. — even if those crimes in and of themselves were not specified as grounds of deportation.

While the frustration and outrage of Administration officials was quite understandable, the whole exercise was was somewhat like “kicking the cat after a bad day at the office.” Almost all the Iranians studying in the U.S. at that time were supporters of the deposed Shah’s U.S.-backed government. The “radicals” who were holding hostages in the Embassy weren’t anywhere near the U.S. 

Most of the enforcement efforts against Iranians in the U.S. became embroiled in never-ending litigation. However, the concept of “special registrations” for groups of non-immigrants, particularly from Middle Eastern countries, became part of the “immigration regulation toolbox.” It was repeated after “9-11” and is also one of the antecedents to Trump’s so-called “Muslim ban.”

Finally, my fourth main event  from the Carter Administration was “phase one” of the INS attorney reorganization, which created the Chief Legal Officer for each INS district in the U.S. Started under General Counsel/Acting Commissioner Dave Crosland, the second phase of the reorganization was completed during the Reagan Administration under the leadership of General Counsel Maurice C. “Iron Mike” Inman, Jr. Along the way, Mike changed the name from “Chief Legal Officer” to “District Counsel.” They were the forerunners of today’s “full service” Offices of Chief Counsel at ICE, an integral part of DHS’s operations.

Prior to Crosland and me, the INS Trial Attorneys, although selected by and under the “program management” of the General Counsel, worked for the District Directors, their clients, and were supervised and evaluated by them. Additionally, an even larger group of INS attorneys, Naturalization Examiners, also worked for the District Director, although they were selected and under the program direction of the Assistant Commissioner for Naturalization in the Central Office.

Using a plan developed by then Regional Counsel for the West, Bill Odencrantz, we reorganized the program along the DOJ’s traditional “attorney-client” model to place assignment, supervision, and evaluation of all INS attorneys under the General Counsel. This also gave the General Counsel, in consultation with the Assistant Commissioner, authority to use legal resources in any district “across programs” when needs dictated. 

As you might expect, this move was met with fierce opposition from District Directors, Regional Commissioners, and some naturalization attorneys. As the “point person” for the reorganization, I became the recipient of some of the most vehement and vocal objections.

During “phase two,” completed during Mike Inman’s tenure, the attorneys were moved out of the naturalization program into the Offices of District Counsel and replaced with non-attorney examiners in the naturalization program, which, in turn, merged with the overall adjudications program. 

This is much the way these programs operate today within DHS, with the legal program being part of ICE and the naturalization function part of USCIS. It would have been hard to create the DHS, with all its legal issues, litigation, and complexities, without the “groundwork” being laid during the Carter Administration, and later the Reagan Administration, for a modern, quasi-independent legal program reporting to the ICE Principal Legal Advisor.   

Those Were The Days, My Friend

Looking back, I appreciate the seriousness and integrity with which President Carter and those around him took governing. (I also got frequent calls from Vice President Mondale’s office about immigration issues.) I will always remember the Carter years as a time of both excitement and professional growth. I started as one of a handful of attorneys on the staff of the INS General Counsel and ended up running the INS’s nationwide legal program and being the agency’s top lawyer, albeit in an acting capacity while Dave Crosland was the Acting Commissioner. 

I appreciated and learned from the opportunities that came my way. I particularly enjoyed helping to select, form, organize, and work with the many outstanding attorneys, agents, and staff at INS and DOJ, a number of whom remained my friends and sometimes became colleagues again as my career continued into the Reagan Administration and eventually, beyond INS. The “team approach” to the law and problem-solving that I developed and honed during the Carter years stayed with me and became key to the rest of my career.

(12-29-24)

 
 

🇺🇸⚖️🗽 “REVISITED: U.S. Immigration & Asylum Policies In The Twilight Of The Biden Administration”

Twilight
Twilight
Near Sedona, AZ
Paul Wickham Schmidt
June 13, 2024

In September 2024, I was invited to address a group of prospective social workers  on immigration policy in the Biden Administration. They had read my previous published article “An Overview and Critique of US Immigration and  Asylum Policies In The Trump Era” (2018). They requested an “update” on that article to cover significant developments during the Biden Administration.

While, obviously, things have changed since the election, I believe this speech still has relevance. Therefore, I publish it in a revised and updated version.

REVISITED VERSION 3

REVISITED:  U.S. Immigration & Asylum Policies In The Twilight Of The Biden Administration

 

Originally Delivered in September 2024

 

Edited and Revised, Nov. 4, 2024

 

By Paul Wickham Schmidt

 

I call on you to join our NDPA, use your skills, commitment, and power to resist the haters, oppose the wobbly enablers, expose political bullies who trade away lives and rights that aren’t theirs, and fight to finally deliver on our nation’s yet-unfulfilled promise of due process, fundamental fairness, and equal justice for all in America!

 

 

 

  1. INTRODUCTION

 

Good evening, and thanks for inviting me.  Please listen very carefully to the following important announcement.

 

In the next hour, you will hear no party line, no bureaucratic doublespeak, no sugar coating, no BS, or other such nonsense. Just the truth, the whole truth, and nothing but the truth, of course as I define truth and see it through the lens of my five decades of work with and in the American immigration system.

 

The views expressed herein are mine, and mine alone. They also do not represent the position of any group, organization, individual, or other entity with which I am presently associated, have associated with in the past, or might become associated with in the future. 

 

But, that’s not all folks! Because today is Wednesday and you are such a wonderful audience, I give you my famous, “industry best,” absolute, unconditional, money back guarantee that the following presentation will be free of power points, split screens, and all other forms of distracting modern technology that might interfere with your comprehension and total listening enjoyment. For the next hour, I will be your “power point.”

 

Congratulations and my deep appreciation for your noble choice of social work as a career. Your skills and talents are desperately needed in our society. As you might imagine, as an Immigration Judge I heard and relied upon expert testimony from professional social workers, among others.

 

I am also well aware of the important behind the scenes efforts of social workers to get individuals and families beyond their often-traumatic situations here and abroad, to adjust to and be able to function in our society, and thereby to have the confidence and devote the necessary attention to working with their legal representatives to present the best cases possible in court. As a decision-maker, sound information cogently presented is the key to getting it right and doing justice.

 

You are fortunate to have some great, inspirational examples to guide you.

 

Three of my personal heroes come to mind. First, Aimee Miller who owns and operates a group practice called Interconnect: Counseling and Consulting, LLC, dedicated to conducting psychosocial and mental health evaluations and providing expert testimony and reports for immigration proceedings. She also teaches at the University of Michigan, School of Social Work.

 

My friend Joan Hodges Wu, a licensed social worker, is the founder and CEO of AsylumWorks in Washington, D.C. Her organization is devoted to helping newly arrived asylum seekers and their families navigate the legal, language, employment, educational, and other potential hurdles of adjusting to a new life while facing the uncertainties of the future.

 

Another friend, Hanna Cartwright, received dual degrees in social work and law from Catholic University in D.C. She was an intern at the “Legacy” Arlington Immigration Court and a “charter member” of what I call the “New Due Process Army,” or “NDPA.” This is a group of outstanding professionals, many of them former students of mine at Georgetown Law, interns, and judicial law clerks at the Arlington Court, who are committed to social justice and “fighting the good fight” to force our nation to deliver on its promise of due process for immigrants. Hannah has had a varied career and has risen to become the co-founder and Director of Mariposa Legal in Indianapolis, Indiana.

 

Additionally, I am proud to be on the Advisory Council of
AYUDA, a community group serving the needs of asylum seekers and other immigrants in the D.C. metro area. AYUDA attorneys appeared before me pro bono when I was on the bench. Social work is one of the major service divisions of AYUDA, in addition to legal and language services. 

 

These are all great and inspiring examples of individuals and organizations that “put it all on the line,” every day, to make their communities, America, and the world better places.  And certainly, as you will find, there are many more of these throughout America.

 

I recently read an article in the Washington Post about the struggles and divisions in a small community in Massachusetts with resettling, on a temporary basis, a limited number of pregnant women, children, and families. Most of those at issue are recent arrivals to the U.S., many camping in a concourse at Logan Airport for weeks or even months.  [1]

 

We need better resettlement programs. For some inexplicable reason, the Biden Administration thought that it would be a good idea to essentially “outsource” resettlement to restrictionist GOP governors like Abbott and DeSantis. They, in turn, bussed, or in some cases even flew, recently-arrived asylum seekers to locations in so-called “blue states,” where they believed they would overload local resources and cause problems, thereby inflaming xenophobic resentment.

 

Instead of such inexcusable nonsense, we need asylum resettlement programs that are “dressed for success” – some type of “national clearing house” to match asylees in an orderly fashion with locations across the U.S. where their skills are needed and they would be welcomed. Then, these communities and the asylum seekers must have support services to insure a mutually beneficial transition and reduce misunderstandings and resentments on both parts.

 

These organized programs should concentrate on preparing, supporting, informing, educating, and communicating with communities and migrants, requirements that are often overlooked or inadequate today. Change is an inevitable part of life, but that doesn’t mean everybody will like or accept it. We need better ways of “getting over the hump together.”

 

Tragically, neither political party appears interested in investing in the successful resettlement efforts that will benefit our nation and those seeking refuge through asylum. Therefore, it is likely to fall to the private/NGO sector to “model success” and innovative thinking. Certainly, social work services are an important part of this multi-disciplinary approach.  

 

Now, to the main part of my presentation. You have read my 2019 article “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era.” You have asked me to update you on the current status of the four “membership categories” that I posited in that article: full members; associate members, friends, and outcasts. So, here goes.

 

  1. FULL MEMBERS

 

With respect to full members, essentially U.S. citizens, I’m pleased to report that naturalizations are up under the Biden Administration. As of this summer, more than 3.3 million new citizens had been naturalized as opposed to a little under 3 million during the entire Trump Administration. [2]

 

I think this is the result of ending the misallocation of resources and intimidation tactics used by the bureaucracy under Trump to discourage naturalization. The end of COVID also played a role. Plus, the Trump Administration’s message of hate, lies, and overt xenophobia probably convinced many lawful permanent residents that they would be safer with the protections of U.S. citizenship and the ability to vote on their political leaders.

 

Of course, you have probably heard of Trump’s outrageous threat to mess with birthright citizenship under the 14th Amendment. Since this is a constitutional right, it legally can’t be abridged by either executive action or legislation. The intent here appears to be to harass, dehumanize, and spread fear among our ethic communities and to basically cast doubt on the status of many loyal Americans, mostly of color, who obtained citizenship in this manner notwithstanding the immigration status of their parents.  

 

  • ASSOCIATE MEMBERS

 

Turning to “associate members,” basically green card holders, refugees, and asylees, admissions and adjustments to lawful permanent residence are up. Again, this probably stems largely from the end of COVID and the elimination of some bureaucratic hurdles, as well as some efforts to address backlogs at USCIS.

 

There has been a significant improvement and revival of U.S. overseas refugee programs. They are now on target to exceed 100,000 refugee admissions, although probably falling a bit short of the 125,000 announced target number. Compare that with the paltry fewer than 12,000 admissions in the final fiscal year of the Trump Administration.[3]

 

Still, refugee programs are underutilized and not targeting all our real needs. For example, while the Administration has significantly improved refugee admissions from Latin America and the Caribbean, they are still well below the number necessary to meet actual demand. Of the top five refugee admission countries, DRC, Syria, Afghanistan, Burma, and Guatemala, only the latter is in the Western Hemisphere.

 

Worse yet, has been the cowardly bipartisan attack on our legal asylum system at the Southern Border. This culminated in some of the most draconian anti-asylum executive actions ever in relatively recent regulations issued over the strenuous, well-founded objections of experts, advocates, and NGOs with actual experience in the plight of asylum seekers.

 

Disgracefully, the Biden Administration is considering extending these legally questionable provisions, now under attack in litigation. At the same time, V.P. Harris has pledged that if elected she would attempt to resurrect a horrible, anti-asylum “Bipartisan Border Bill” aimed at accomplishing much of the same damage. For his part, Trump has long demeaned and dehumanized legal asylum seekers and would happily seek to eliminate or further restrict their admission.

 

Neither party seems interested in “doing the right, and obvious, thing” – building an asylum screening and adjudication system that actually works in a fair, generous, and timely manner. The Executive Office for Immigration Review (“EOIR”), an agency of the USDOJ that contains the Immigration Courts, where I once worked, is a particularly dysfunctional mess, with out-of-control backlogs burgeoning to nearly 4 million cases. It also produces wildly inconsistent results with asylum grant rates ranging from approximately 0% to 100% among nearly 700 Immigration Judges.

 

Essentially, both parties seek to improperly punish and demean legal asylum seekers for their bipartisan failure to fix the asylum adjudication system across more than two decades. That’s what “bipartisanship” has come to mean in immigration: Basically, a race to the bottom to find the lowest common denominator!

 

  1. FRIENDS

 

With respect to so called-friends, those with limited permission to be here, but no clear path to permanent residence or citizenship, nonimmigrant visas have rebounded with the lifting of COVID restrictions.

 

However, so-called “Dreamers” remain in limbo. There is no foreseeable prospect for legislative relief and a “red-state” challenge to the legality of their DACA status is in the Fifth Circuit Court of Appeals, likely headed for the Supremes.

 

The Biden Administration used executive actions to create some new “legal pathways” programs allowing up to 30,000 per month pre-screened individuals with U.S. sponsors to be “paroled” into the U.S. for an initial two-year period. This program has proved somewhat successful in reducing pressure at the Southern Border.

 

However, it is limited to nationals of Cuba, Haiti, Venezuela, and Nicaragua. That plus the numerical limitations diminish its ameliorative effect. In addition, the program had to be temporarily paused to look into allegations of sponsorship fraud.

 

Moreover, unlike those admitted in refugee or asylum status, those paroled have no statutory path to green cards and eventual U.S. citizenship. They would need special legislation to gain lawful permanent status.

 

But, given strong GOP opposition to these humanitarian programs, these individuals are likely to remain in “limbo,” and become “political footballs” subject to the whims of the next Administration. Many have been, or will be, forced into the already backlogged asylum adjudication system, thereby defeating part of the original purpose of these parole programs.[4]

 

Remarkably, the Administration also chose to use parole, rather than the refugee system, to allow large numbers of our Afghan allies to come to the United States following the Taliban takeover. These also remain in limbo, in the absence of a legislative path to permanent status.

 

Unlike Trump, who tried to restrict and eliminate so-called
Temporary Protected Status, or “TPS” wherever possible, the Biden Administration has made relatively robust use of TPS. The Administration has also made some improvements in the timely issuance and renewal of important “Employment Authorization Documents” (“EADs”) for those awaiting adjudication of applications filed with USCIS and EOIR.

 

  1. OUTCASTS

 

With respect to those “outcasts” who don’t fit within any of the three foregoing categories, sometimes called “undocumented,” their numbers are probably around 10 to 12 million. [5]It is certainly not the bogus 20 million figure that GOP politicos and the right-wing media like to throw around. It’s also unclear to me whether this figure subsumes the many asylum applicants who actually are neither “undocumented” nor “illegal,” but here with Government permission to pursue their legal asylum applications before the USCIS Asylum Office and/or EOIR.

 

The Biden Administration tried to help noncitizen spouses and stepchildren of USCs regularize their status with a widely-hailed practical, humanitarian program called “Parole in Place” (“PIP”). However, perhaps predictably, a Trump-appointed Federal Judge blocked the PIP Program, at least temporarily. He acted at the request of “red states” with anti-immigrant agendas. So, while PIP registrations are still taking place, the fate of the program is unclear at this juncture.

 

Perhaps, worst of all, as I mentioned earlier, the Immigration Courts remain a dismal mess, with nearly 4 million case backlog that has grown exponentially under A.G. Garland. Instead of fixing EOIR and standing up for the legal and human rights of asylum seekers, Garland has instituted “built to fail” gimmicks like “expedited dockets” and approved regulations barring most asylum claims at southern border in violation of the statutory right, not to mention human right, to seek asylum “regardless of status.”

 

NGOs, practical experts, and advocates who, unlike Garland and his lieutenants, actually work with asylum seekers at the border and elsewhere, have documented how these tone-deaf policies increase deaths and abuses of asylum seekers in Mexico and beyond. However, truth has been to no avail in this appalling situation. I’d argue that most of the Administration’s misguided “maximum enforcement/no due process” at the border has been in response to their abject failure to bring long-overdue reforms to EOIR and the AO. They now seek to “cover-up” this massive failure by scheming to avoid the system entirely, rather than fixing it.

 

Trump outrageously threatens mass deportations. These would not only violate laws guaranteeing due process, but also sow fear and terror in many ethnic communities, which is, of course, the real point of such threats: essentially “dehumanization” or “de-personification” of wide swarths of our society going far beyond immigrants. At the same time, he would waste money, misdirect law enforcement resources, and likely tank our economy, which depends heavily on the labor of immigrants, both legal and undocumented. Not a pretty picture.

 

  1. CONCLUSION

 

In conclusion, the Biden Administration has been a “mixed bag” on immigration, human rights, civil rights, and the rule of law. Basically, it has been “one step forward, and two steps back.”

 

A number of the Administration’s ameliorative programs for immigrants, like retention of DACA, humanitarian parole, increased refugee admissions, and “Parole in Place” have been too timid, limited, or blocked by restrictionist litigation.

 

On the other hand, bad border policies and largely ignoring the due process crisis in the Immigration Courts have undermined the rule of law, promoted the “bipartisan demonization and dehumanization of asylum seekers and other migrants at the border,” squandered scarce resources in the private/NGO sector, and wrecked death, despair, and untold misery on some of our most vulnerable fellow humans.

 

In extremely unfortunate ways, we are now replicating the very pre-1980 programs and disorganized, ad hoc, often-biased approaches that the Refugee Act of 1980 and the creation of EOIR were intended to solve.

 

Refugee provisions are avoided when dealing with so-called “emergencies,” leading to the mass parole of Afghans, limbo status, and the need for Congressional action for permanent status. Asylum determinations are basically reverting to ad hoc, often arbitrary and capricious, decisions that favor some nationalities and ethnicities over others based on US internal politics and foreign policy concerns. Humanitarian parole programs, while potentially a step in the right direction, deny individuals the stability and clear route to green cards and citizenship as well as some of the protections that come with refugee, asylum, and other types of legal admissions.  It also makes them “political footballs” for the restrictionist right.

 

Making EOIR an independent entity within DOJ, back in 1983, a process I was involved in, was supposed to advance quasi-judicial independence and professionalism. Instead, after decades of bipartisan misdirection and mismanagement, the Immigration Courts have essentially resumed some of their pre-EOIR characteristics of being perceived, and often acting, as politicized arms of DHS enforcement, too often lacking professionalism, expertise, consistency, practical problem-solving abilities, and compassion.

 

I recently posted on Linkedin an article by Eduardo Porter that summarized the current gloomy and disturbing state of our national non-debate on immigration:

 

Consider immigration, the epicenter of zero-sum thinking in voters’ minds. It’s an issue that is critical to the United States’ future and a topic that is easily demagogued as a struggle between endangered Americans and some predatory “other.” Harris, like Biden, has worked to distance herself from Trump’s most implausible ideas (such as expelling 11 million people). Still, she leads a Democratic Party that believes one of its paramount challenges is stopping immigrants from coming to the United States.
[6]

 

That’s a rather sad, yet fundamentally true, commentary on how our nation of immigrants now thinks and acts. The GOP demonizes, dehumanizes, and lies about immigrants; the Dems roll over and want to change the subject. As you witnessed in the Presidential “debate,” actually more of an exercise in “performative entertainment” than a serious discussion of issues, we don’t know November’s winners, but we already know the losers: Immigrants, due process, and social justice advocates.

 

Few, if any, politicos on the national level have the moral courage and clear vision to mount a well-justified, evidence-based defense of asylum seekers and other migrants. Likewise, few of them advocate for investing in achievable improvements in the system. Instead, they seek partisan political advantage, on the backs of the desperate and disenfranchised, by eagerly and cynically pouring money and manpower into cruel, ultimately ineffective, enforcement and “deterrence” gimmicks.

 

The latter, not incidentally, have spawned a highly profitable and politically potent industry that benefits from every deadly, failed border deterrence “enhancement.” No wonder positive change and creative problem solving are so elusive, and so many of our politicos lack the guts effectively to protect immigrants’ lives, human dignity, and rights at the border and beyond!

 

More than 50 years of experience working in our immigration systems, at different levels, and from many angles, tell me the following inalienable truths:

 

  • Human migration is real;
  • Forced migration is exactly that;
  • It won’t be stopped by walls, prisons, deterrents, or other cruelty;
  • Asylum is a human and legal right;
  • Immigrants are good for America; and
  • Due process for all persons in the U.S. is essential.

 

My time on the stage is winding down. But, yours, my friends, is just beginning. I call on you to join our NDPA, use your skills, commitment, and power to resist the haters, oppose the wobbly enablers, expose political bullies who trade away lives and rights that aren’t theirs, and fight to finally deliver on our nation’s yet-unfulfilled promise of due process, fundamental fairness, and equal justice for all in America!

 

Thank you for listening, and due process forever!

 

(11-04-24)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] https://www.washingtonpost.com/nation/interactive/2024/migrant-shelter-norfolk-massachusetts-immigration-debate/.

[2] https://truthout.org/articles/trump-backlogged-citizenship-process-biden-has-halved-the-time-it-takes/

[3] https://www.wrapsnet.org/admissions-and-arrivals/

[4] Indeed, after this speech was delivered, but before the election, the Biden Administration announced plans to abandon more than 530,000 individuals paroled into the U.S. under these “lawful pathways” programs. Upon expiration of their current parole, they will be forced to either leave the U.S. or apply for some type of relief, the primary one being the asylum adjudication system which is already absurdly backlogged. https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://www.nyic.org/2024/10/advocates-outraged-by-president-bidens-refusal-to-extend-humanitarian-parole-for-immigrants-in-the-u-s/&ved=2ahUKEwjdx-jssoyKAxU-F1kFHd_XGCYQFnoECB4QAQ&usg=AOvVaw1D3gxxQl0uOawGZ7HkwLBT

[5] https://ssri.psu.edu/news/mpi-issues-latest-estimates-size-and-origins-us-unauthorized-immigrant-population

[6] https://www.washingtonpost.com/opinions/2024/09/03/politics-trump-biden-trade-immigration/

 

 

 

🔮 FREE WEBINAR FROM CORNELL LAW: IMMIGRATION REFORM IN 2025 What Is Possible? Wednesday, November 20, 2024, 1pm EST!

Immigration will be a key issue in the next administration. Join a panel of experts from the Cornell Law School immigration law and policy research program to learn what immigration laws and policies might change, both in the lame duck session and in 2025. 

 

The free webinar will be on Wed. Nov. 20 from 1-2 pm ET. To register, go to https://ecornell.cornell.edu/keynotes/overview/K112024/. Even if you can’t attend the webinar live, register to get the recording afterwards. 

 

The webinar is sponsored by the Cornell Migrations Initiative, the Cornell Population Center, the Cornell Jeb E. Brooks School of Public PolicyCatholic Charities Tompkins/Tioga Immigrant Services Program, and the Cornell Law School Migration and Human Rights Program.

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Due Process Forever!

PWS😎

😎 COURTSIDE ON SABBATICAL — After 7 1/2 Years, It’s Time! 🏜️

 

Sabbitical
Gone on sabbatical
IMAGE: Public Realm

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:

Family Detention, Raids, Expediting Cases Fail To Deter Scared Central Americans!

https://www.washingtonpost.com/world/national-security/central-americans-continue-to-surge-across-us-border-new-dhs-figures-show/2016/12/30/ed28c0aa-cec7-11e6-b8a2-8c2a61b0436f_story.html?utm_term=.077ef694fd73

“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.”

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

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!”

😎PWS🏜️🌄🌅🖼️

05-31-24