"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
This from my good friend and Alexandria neighbor Professor Alberto Benitez over at GW Law:
The attached article from the Washington Post reads like the affidavits we prepare and file in support of our clients’ asylum applications. Please read to the end. All respect to Sra. Alvarado, Sr. Osorio, and all the survivors, may the victims rest in peace, and thanks to Ms. Schneider and Mr. Langille.
Kevin Sieff Latin America Correspondent Washington PostNick Miroff Reporter, Washington Post
From the above article by Kevin Sieff & Nick Miroff @ WashPost:
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Obviously, what’s described elsewhere in the article is really “top notch” law enforcement work from DHS. It also illustrates one of my “continuing themes” of “effective interdisciplinary cooperation in immigration cases.”
The irony is that DHS now spends too much of its law enforcement time trying to “chase down the victims of persecution” and deny them their rights to apply for asylum and their opportunity have their cases fairly evaluated and adjudicated.
What if, if rather than yielding to disgusting political grandstanding by GOP nativists and, sadly, some misguided Dems, who want to misuse Title 42 to end asylum law, the Administration stood up for the rights of refugees and asylum seekers for fair and orderly processing and determination of their claims for protection? What if refugees were encouraged to apply at legal ports of entry and at points outside the U.S. Wouldn’t that leave more time for “real” law enforcement at DHS — at the border and everywhere else?
Interestingly, during the Trump regime, some ICE Special Agents came to the same conclusion. They unsuccessfully “lobbied” then DHS Secretary Nielsen for separation from the “gonzo civil enforcement” that ICE then was carrying out — concentrating on “terrorizing” local ethnic communities. Not surprisingly, this made local enforcement in many areas reluctant to cooperate with ICE on real law enforcement priorities — like that described in this case.
As this article suggests, there has been a real “mixed message” in DHS and DOJ in handling of asylum claims from the Northern Triangle. One arm acknowledges and prosecutes massive acts of persecution that are actually war crimes. Another arm, aided by bad judging at EOIR and poor leadership at DOJ, disingenuously denies that such persecutions took place — sometimes mischaracterizing it as “random violence” — and that violence amounting to persecution on account of a “protected ground,” particularly violence directed at women and children, remains widespread in Latin America today.
Clinicians affiliated with medical human rights programs throughout the United States perform forensic evaluations of asylum seekers. Much of the best practice literature reflects the perspectives of clinicians and attorneys, rather than the viewpoints of immigration judges who incorporate forensic reports into their decision-making. The purpose of this study was to assess former immigration judges’ perspectives on forensic mental health evaluations of asylum seekers. We examined the factors that immigration judges use to assess the affidavits resulting from mental health evaluations and explored their attitudes toward telehealth evaluations. We conducted semistructured interviews in April and May 2020 with nine former judges and systematically analyzed them using consensual qualitative research methodology. Our findings were grouped in five domains: general preferences for affidavits; roles of affidavits in current legal climate; appraisal and comparison of sample affidavits; attitudes toward telephonic evaluations; and recommendations for telephonic evaluations. Forensic evaluators should consider the practice recommendations of judges, both for telephonic and in-person evaluations, which can bolster the usefulness of their evaluations in the adjudication process. To our knowledge, this is the first published study to incorporate immigration judges’ perceptions of forensic mental health evaluations, and the first to assess judges’ attitudes toward telephonic evaluations.
Across the United States, clinicians working in collaboration with medical asylum clinics and torture treatment programs conduct forensic evaluations of asylum seekers.1,–,5 In such evaluations, clinicians investigate the physical and psychiatric sequelae of human rights abuses and document their findings in medico-legal affidavits that are submitted to the immigration judge as part of an individual’s application for immigration relief.1,6,7 The affidavits provide the evaluators’ written testimony explaining to a judge the relevance of their findings (e.g., the impact of trauma on memory). Medical providers experienced in conducting forensic evaluations have worked in consultation with attorneys to establish and disseminate best-practice guidelines for evaluations.6,–,10 Much of the best-practice literature reflects the perspectives of clinicians and attorneys, rather than the viewpoints of immigration judges who apply forensic reports in their decision-making. (One notable exception was a presentation of suggestions for writing medico-legal affidavits based on a qualitative study of a sample that included immigration judges, clinicians, and attorneys.11) As a result, forensic medical evaluators have limited insight into how immigration judges view the content of affidavits or how the documentation of forensic evaluations affects asylum cases.
In the context of the COVID-19 pandemic, medical human rights programs have transitioned to conducting forensic evaluations by telephone or video.12,13 Forensic clinicians have also been using telehealth modalities to evaluate asylum seekers who have poor access to forensic services because they live in geographically remote areas of the United States, immigration detention centers, or Mexico border cities.14 Mental health practitioners have reported both comfort with and concerns about the limitations of telehealth forensic evaluations.15 Most literature on telehealth forensic evaluations has focused on evaluators’ perceptions of video-teleconference, applied across multiple dimensions of forensic mental health.16,–,20 Assessing the acceptability of remote evaluations to adjudicators of immigration claims and incorporating their perspectives into broader practice recommendations is particularly critical at this time, given that telehealth visits and telephonic interviews of asylum seekers have become standard as a result of both the COVID-19 pandemic and the increased number of asylum seekers in immigration detention facilities.
This study was to explore former immigration judges’ perspectives on forensic mental health evaluations of asylum seekers. We examined the factors that immigration judges use to assess the medico-legal documents resulting from mental health evaluations. We also specifically identified participants’ attitudes and perceptions toward telehealth evaluations. This study adds to existing literature by incorporating immigration judges’ perceptions of forensic mental health evaluations and by assessing judges’ attitudes toward telephonic evaluations. We specifically investigated telephonic rather than video-based evaluations because asylum seekers may have limited access to the internet, and immigration detention centers often restrict access to video conferencing platforms.14 This study was approved by the Mount Sinai Institutional Review Board.
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Full article at the above link.
This should be great information for practitioners, judges, ICE counsel, and administrators seeking a fairer, better functioning Immigration Court system.
This illustrates one of many “under-appreciated” aspects of modern immigration and human rights “practical scholarship:” Its virtually unmatched interdisciplinary usefulness and its “right off the shelf” ability to advance knowledge, fairness, 21st century efficiency, and best practices!
While EOIR might actually be “worse than your father’s and mother’s Immigration Courts,” not so the private bar, NGOs, and the academic (particularly the clinical) sectors! It’s where the action, upcoming talent, and quality is right now!
It’s a shame that more of those in charge of the Immigration Courts, the stumbling immigration bureaucracy, and the often behind the times “improperly above the fray” Article IIIs aren’t paying attention to both the types of individuals they should be hiring and the methods they should be using to improve the delivery of justice.
If change has to come from below, so be it! But, change and progress will eventually come to the broken and dysfunctional Immigration Courts and the bumbling bureaucracy surrounding and enabling this disgraceful systemic failure that is dragging down both our legal system and our democracy!
“In a decision dated May 21, 2020, an Immigration Judge found the respondent to be removable as charged, denied her application for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(h) (2018), and ordered her removed from the United States. On appeal, the respondent contests the Immigration Judge’s determination that her Virginia conviction for distributing a controlled substance renders her ineligible for a section 212(h) waiver, arguing that a State court issued a nunc pro tunc order reflecting that she was not convicted of distributing a substance controlled by Federal law. The Department of Homeland Security (“DHS”) opposes the appeal. Because the nunc pro tunc order reflects the respondent has not been “convicted” of an offense relating to a controlled substance within the meaning of the INA, the respondent’s appeal will be sustained and the record will be remanded for further proceedings.”
Many congrats, Ben!😎 A rare win for the rule of law and the “good guys” at the BIA. And, give the BIA panel (Judges Goodwin, Gorman, & Greer) credit for rejecting the ICE position and getting this one right under the categorical approach.
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Hello all,
Just wanted to share some good news! A client had her merits hearing yesterday afternoon in Seattle. Her asylum claim was based on her PSG of being an immediate family member of a police officer. She had been threatened by some maras and approached because the maras knew her husband was an officer. She fled within 2 weeks. The judge granted and DHS surprisingly did not put up much of a fight.
Sincerely,
Ramon Trujillo
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Ramon Trujillo
Law Offices of Ramon Trujillo
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Many congrats, Ramon! Clearly the correct result under Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988). A former policeman is a PSG; so, undoubtedly the immediate family is also. And certainly, that relationship was “at least one central reason” for the persecution.
Imagine what a “Better Immigration Court” could look like if everyone had the awareness and integrity of the group in court for this case. Justice is a “team effort,” and it sounds like that’s what happened in your case.
That’s what should happen every day in every case at EOIR!
Also, I’ll bet there are more cases like this that were unfairly “locked out of our refugee/asylum system” by abusive use of Title 42 by the Trump and Biden Administrations.
GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina Vera
“I really do not find enough words to let you know how grateful I am to all of you for your wise and timely guidance at all times and for the dedication and commitment that you assumed from the first moment towards our asylum case.”
Please join me in congratulating Immigration Clinic client T-G and her son F-P, from Venezuela, and their student-attorneys Karoline Núñez, Samuel Thomas, Alexandra Chen, and Jeremy Patton. The clients’ asylum application was filed April 28, 2017, their interview at the Asylum Office was on November 1, 2021, and the grant was issued March 21, 2022. T-G received the grant yesterday.
T-G is a survivor of domestic violence at the hands of her husband. He’d punch T-G, force her to have sexual relations, infected her with a STD, and he blamed her for their daughter’s neurological issues. Their daughter contracted Zika but was unable to receive the appropriate treatment because T-G was not a supporter of the Maduro government. Their daughter died at age 14.
Many congrats to the GW Immigration Clinic and all the GW All-Stars! 🤮⚖️
Let’s get behind the intentional dehumanization and the chronically misleading “numbers” being thrown around by nativists, some so-called “moderate” Dems, and the DHS. Put a “human face” on our nation’s dereliction of legal duty and abandonment of values at out Southern border.
The Faces Of Human Suffering @ Our Border PHOTO: The Guardian
This case is a compelling example of the types of refugees, many women and children and most people of color, who are stuck at our Southern Border as illegal suspension of asylum laws, based on racially- motivated bogus “public health” grounds grinds on. With some legal assistance and a fair and orderly system in place, many of those waiting could qualify for asylum if given a fair chance under the law.
Access to the asylum system, representation, and fair and impartial adjudication are essential to success. Right now, the Biden Administration is denying all three.
Make no mistake, this disingenuous action would kill asylum for good! These guys don’t even have the guts to admit that they are now carrying out Stephen Miller’s xenophobic war on immigrants and refugees of color.
Biden ran on an elimination of Title 42 and restoration of the legal asylum process. If 18 months after the election they lack a “plan,” there is no reason to believe that 60 more days would make a difference. It’s now or never!
60 days would bring us even closer to the mid-terms. If Dems are scared to follow the law now, that’s not going to improve as the midterms get even closer.
You can be sure that once the midterms are past, particularly if Dems get “blown out” as they fear, they will claim that the time “isn’t right” for any immigration “reform” (although, following the law is hardly a real “reform”) in advance of the 2024 election. If the GOP wins in ’24, the effective elimination of legal immigration — with or without legislation — will be finalized.
This has nothing to do with COVID at this point. It never really did. It was always about finding a pretext to close the border and keep it closed — at least to non-White refugees. But, since COVID constantly mutates, there will always be some sort of “COVID emergency” out there for the foreseeable future.
Asylum applicants have NOT been a significant source of COVID.They are far less of a threat to our health, safety, and security than GOP “magamorons” who eschew vaccination and basic public safety precautions. The Biden Administration should have a plan in place to insure that asylum seekers are tested and if necessary vaccinated before admission.
If we have no legal asylum system at the border, no functional refugee system abroad, and no hope for the future, the only way for individuals to seek protection will be by using smugglers to enter illegally and then hoping to “lose themselves” in a burgeoning “extralegal population” throughout out America. Once we abandon any pretext of a legal system for asylum seekers, the border will get further and further out of control. That will add to the GOP’s claims that more and more cruel, draconian, and punitive measures are necessary. But, they won’t stop desperate people from attempting entry until they either succeed or die in the process.
Contrary to the misguided blather of some Dems, there will never be a better time for Dems to support asylum seekers. They are concentrated in border areas, and eager to have their claims heard. Orderly processing and admitting as many as qualify, in a period of artificially reduced migration, would help the economy, raise tax revenues, and address supply chain issues. If not now, when?
Restoring asylum law is a legal requirement, not a “strategy,” “policy,” or “political choice.” If Dems turn their backs on the rule of law, what makes them different from the GOP?
If this divisive nonsense and backsliding on basic constitutional, racial justice, and social justice issues continues, progressive Dems are going to be faced with having to make a decision about the party’s future.
Progressive Dems make up a key part of the party’s core base and a disproportionate amount of the “boots on the ground, grass roots enthusiasm.” Republicans aren’t going to vote for Dems, no matter how xenophobic, hateful, and racist Dems are toward migrants. So-called “independents,” are neither going to fill the Dems coffers nor pound the pavement and work the phone lines to “get out the vote.”
So, arrogant “Title 42 Dems” are assuming that they can “spit on” immigrant justice, racial justice, economic justice, and social justice and that their “core support” among progressives won’t diminish because they will always be preferable to “Trump Republicans.”
All in all, it’s a “big middle finger” to progressives and their social justice agenda. That’s an agenda that Biden actually successfully ran on.
If progressives really believe in a pro immigrant, pro rule of law, racial justice agenda, then they need to stand up to the backsliders and let them know that there will be real consequences of yet another “sellout of immigrants’ rights.” We’ll see whether progressive Dems have more backbone and courage than their “Title 42/Miller Lite wing.”
But, the Post badly missed the larger point — NO refugee can afford to wait, be they White Ukrainians, Black Haitians, Cameroonians, and Congolese, or Latinos from the Northern Triangle, Venezuela, and Nicaragua! Our obligations to asylees are not supposed to be “race-based!”
The U.S. has had a legal refugee and asylum system for more than four decades. During that time, Congress has made several amendments of the law to allow DHS to rapidly process and summarily remove those appearing at the border who, after prompt expert screening by Asylum Officers, cannot establish a “credible fear” of persecution.
Restrictionists and shamefully some so-called moderate Democrats, and sometimes CBP, seem to have conveniently “forgotten” that the law was designed to deal fairly and promptly with so-called “mass migrations” long before the advent of the bogus Title 42 charade.
For some periods during the 40 years since the enactment of the Refugee Act of 1980, the U.S. has run functional refugee and asylum programs. Not “perfect” or perhaps even “optimal,” but “functional.”
They have done this by employing experts, cooperating with NGOs (domestic and international), and building resettlement and support systems spearheaded by NGOs, using Government grants, and promoting teamwork and coordination with states and localities.
It has only been when Administrations of both parties have mindlessly turned away from human rights experts and followed the misguided and tone-deaf gimmicks advocated by nativists and apostles of “enforcement only deterrence” that the legal systems for refugees and asylees, and efficient, humane border enforcement, have fallen into disorder.
While refugee and asylum laws could undoubtedly be improved, contrary to the media blather and nativist grandstanding, we have the basic legal framework to deal with the current refugee and asylum situations at our borders and beyond. The question is whether the Biden Administration and Dems have the will, vision, competence, and willingness to cooperate with human rights experts to fix the mess intentionally created by Trump and return human decency, competence, and the rule of law to our borders! If not now, when?
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
VOA: A U.S. State Department annual report highlighted concerns about continuing human rights abuses in Russia, China, Iran, Venezuela, Egypt and other authoritarian nations, as well as the impact the coronavirus pandemic has had on rights practices around the world.
Reuters: The 210,000 migrants arrested in March, a figure made public in a court filing on Friday night, is the highest monthly total on record since February 2000, according to U.S. Customs and Border Protection statistics dating back to 2000.
RAICES: On Monday, April 18th, 2022, immigrant legal services providers, advocates and community members will hold a press conference to announce the launch of the Harris County Immigrant Legal Services Fund (ILSF), which will provide free legal representation for immigrant members of the county who are detained and facing the threat of deportation. As of February 2022, Harris County had the most residents with pending immigration court cases in the country.
CNN: While immigration advocates celebrated the decision to reverse Title 42, many moderate Democrats have sounded the alarm warning that lifting the policy without an adequate plan in place will lead to a rapid influx of migrants at the Southern border, something that Republicans will be quick to seize on the campaign trail.
AP: The bill was filed after Wyandotte County passed a “sanctuary” ordinance in February that would provide local identification cards for immigrants and other residents and would prevent local law enforcement from helping the federal government enforce immigration laws unless public safety is threatened. Lawrence and Roeland Park have similar ordinances.
Law360: A federal watchdog rebuked U.S. Immigration and Customs Enforcement for an $87 million no-bid contract to house migrant families in hotels, saying the agency hadn’t justified directly awarding the deal to a nonprofit inexperienced in emergency family residential services.
Denver Gazette: The Cuban government has not been accepting deportations of Cuban nationals from the U.S. for more than six months, at a time when tens of thousands are leaving the island to reach the U.S. in the largest exodus since the 1980s Mariel boatlift.
WTTW: An expanded class of low-income workers will permanently get a larger tax break via the Earned Income Tax Credit, and that benefit will be extended to those who file taxes with an Individual Taxpayer Identification Number (ITIN), something that Rep. Aaron Ortiz, D-Chicago, said is important to many immigrants who play an important role in the state’s economy. Illinois is allocating $70 million for healthcare for undocumented immigrants. See also Illinois launches health care coverage for older immigrant adults aged 55 to 64.
Law360: The Fourth Circuit refused to award attorney fees to a man who convinced the full appeals court that the federal government had arbitrarily rejected him for special immigrant juvenile status, saying the U.S. was justified in fighting the suit.
Law360: The Seventh Circuit seemed unconvinced Wednesday that it should unsettle the dust in a dispute over a Trump-era public charge rule that the Biden administration has already begun redrafting by letting a group of Republican-led states enter the fray.
Law360: U.S. Citizenship and Immigration Services will grant naturalization requests made by two immigrant veterans after federal courts refused to toss the soldiers’ lawsuits alleging the agency unfairly disqualified them from expedited processing of their citizenship bids.
Law360: A D.C. federal court has denied the U.S. Department of Homeland Security’s bid to block inspections of detention facilities that immigration advocates say are denying inmates access to counsel, but the government did get its choice of monitor for the probe.
Law360: Eighteen additional states on Thursday signed on to a lawsuit started by Arizona, Louisiana and Missouri to challenge the Biden administration’s decision to wind down a pandemic-related order known as Title 42 that allows the quick expulsion of migrants arriving at U.S. land borders.
Hill: A coalition of immigrant rights groups filed a lawsuit Thursday seeking information from Immigrations and Customs Enforcement (ICE) about the agency’s Intensive Supervision Appearance Program (ISAP), a so- called alternative to detention program that has ballooned during the Biden administration.
NJ Monitor: Police do not have to — and should not — advise crime suspects that their cooperation could impact their immigration status, a New Jersey appeals court ruled Friday.
USCIS: Today, the Department of Homeland Security (DHS) announced the designation of Cameroon for Temporary Protected Status (TPS) for 18 months. Only individuals who are already residing in the United States as of April 14, 2022, will be eligible for TPS.
DHS: The key program areas include: Applying for naturalization; Accessing humanitarian protection during immigration processing
Bidding on DHS contracts; Countering all forms of terrorism and targeted violence; Filing complaints and seeking redress in DHS programs and activities; Airport screening; Accessing Trusted Traveler Programs.
AILA: USCIS announced that its website will now feature a Lockbox Filing Location Updates page, where customers can track when lockbox form filing locations are updated. Updates will also be emailed and announced on social media.
EOIR: Since April 2021, Judge Cheng has served as the Regional Deputy Chief Immigration Judge for the Eastern Region at EOIR. She previously served as a Deputy Chief Immigration Judge from 2017 to 2021, and she was the Acting Principal Deputy Chief Immigration Judge from August 2020 to February 2021. Judge Cheng has also served in the New York Immigration Court both as an Assistant Chief Immigration Judge from 2015 to 2017, and as an Immigration Judge from 2009 to 2015. Before joining EOIR, she served as Assistant Chief Counsel for the Department of Homeland Security, Immigration and Customs Enforcement, from 2002 to 2009; and before that, she practiced immigration law in New York from 2000 to 2002.
AILA: EOIR announced the appointment of Beth Liebmann as a member of BIA by Attorney General Merrick B. Garland. Biographical information for Liebmann has been provided.
BIA: Whether, in light of U.S. v. Herrold, 941 F.3d 173 (5th Cir. 2019) (en banc), and regardless of the specific mens rea of an underlying crime, the commission or attempted commission of a felony, theft, or an assault under Texas Penal Code § 30.02(a)(3) necessarily supersedes or implicitly contains generic burglary’s intent element, which requires an “intent to commit a crime” upon entry into a building or habitation. Due Date: May 3, 2022
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
Join author Ali Noorani, CEO of the National Immigration Forum, for a virtual discussion on Wednesday April 27 from 1-2 pm ET about his newest book, “Crossing Borders: The Reconciliation of a Nation of Immigrants,” with Cornell immigration law professor Stephen Yale-Loehr and Wall Street Journal reporter Michelle Hackman. Based on interviews in Honduras, Mexico, Eastern Europe, and communities across the U.S., Mr. Noorani’s book presents the complexities of migration through the stories of families fleeing violence and poverty, the government, and nongovernmental organizations helping or hindering their progress, and the U.S. communities receiving them. Going beyond highly charged partisan debates, the panel will offer real insights and actionable strategies for restoring the dignity of both immigrants and the United States itself.
Another all-star 🌟 panel featuring some of the “best in the business!” Think how much better immigration and human rights policies could be if folks like this were “on the inside” formulating and directing USG policy rather than commenting from the outside. I’ll bet the Immigration Courts, the border, and our asylum and refugee systems would all be on a much better trajectory!
The latest guidelines of ICE are welcomed by the American Immigration Lawyers Association (AILA). The memo will allow prosecutors to resolve cases immediately. It will help in reducing the backlog in immigration court proceedings. Thousands of people are waiting in line for years to get asylum or a green card. The Doyle Memorandum offers clear guidelines for prosecutors.
In the past, ICE Prosecutors have not always closely adhered to PD memos issued by OPLA. In addition, federal courts have, at times, intervened and enjoined prosecutorial discretion policies by ICE.
But one thing is clear. With nearly 1.7 million cases currently pending in immigration courts and the Board of Immigration Appeals, let’s hope that ICE Prosecutors will “do justice,” conserve scarce administrative resources best used against high priority cases, and remove low priority cases from the deportation process. This will not only make the U.S. a more safe and equitable nation, but will help keep peaceful and hardworking families together.
On May 12, 2022, ICE Principal Legal Advisor Kerry Doyle and ICE Detroit Chief Counsel Tara Harris will hold a community meeting with interested legal services providers, non-governmental organizations (NGOs), and community stakeholders who work with immigrant communities in Michigan and Ohio.
This meeting presents a unique opportunity to hear directly from PLA Doyle on her recently issued guidance to ICE attorneys on enforcing the civil immigration laws and prosecutorial discretion. It is anticipated that specific guidance on process will be provided.
For more information on how to submit a request for PD, please see the ICE Website.
Richard Herman is a nationally renowned immigration lawyer, author, and activist. He has dedicated his life to advocating for immigrants and helping change the conversation on immigration. He is the founder of the Herman Legal Group, an immigration law firm launched in 1995 and recognized in U.S. World News & Report’s “Best Law Firms in America.” He is the co-author of the acclaimed book, Immigrant, Inc. Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009). Richard’s poignant commentary has been sought out by many national media outlets, including The New York Times, USA Today, BusinessWeek, Forbes, FOX News (The O’Reilly Factor), National Public Radio, Inc., National Lawyers Weekly, PC World, Computerworld, CIO, TechCrunch, Washington Times, San Francisco Chronicle and InformationWeek. He serves as counsel to the Consulate of Mexico, Michigan/Northern Ohio.
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Read the rest of Richard’s outstanding and very informative analysis at the link.
It’s critical that Immigration Judges and the BIA take an active role in “encouraging and motivating” parties to maximize the use of PD. One possible tool is proactively closing certain types of cases without waiting for motions.
Either party that wants the case back on the docket can, of course, make a motion to redocket. Based on my experience with several past similar programs at the BIA, I anticipate that such motions would be relatively rare. Moreover, I would be reluctant to “redocket” a case without a joint agreement from the parties that it will be resolved in a “short hearing,” or a compelling reason to proceed in Immigration Court (e.g., the respondent failed to apply, committed a crime, or was denied TPS).
It’s going to take teamwork, cooperation, and creative thinking among the parties and the courts to get dockets back in shape so that Immigration Judges can do their jobs in something “approaching real time.”
PD could be the key to success; or, it could become just another in the long line of things that looked good on paper but never achieved full potential. Time, and the efforts of all parties concerned to solve the problem in the most constructive and practical ways possible, will tell.
Katharina Obser Director of Migrants Rights and Justice Women’s Refugee Commission PHOTO: Women’s Refugee Commission website
Yesterday at 2:08 p.m. EDT
An unfinished area of the border wall between the United States and Mexico near Sasabe, Ariz., on Jan. 23. (Salwan Georges/The Washington Post)
With respect, it was breathtaking how much Marc A. Thiessen’s April 13 op-ed, “Biden to turn border crisis into a total catastrophe,” mistook Trump-era “public health” policy for border security, conflated families fleeing for their lives with fentanyl crossing the U.S. border and carelessly suggested that returning to normal asylum processing means Wild West open borders.
Seeking asylum is a right guaranteed under U.S. and international law. Ending Title 42 — a policy that weaponizes public health law to shut down the U.S. asylum system, which has been long decried by public health experts — simply means that people fleeing danger can once again exercise their right to apply for protection. It is policies such as Title 42, rather than the act of seeking asylum itself, that cause harm and catastrophe at our border. Title 42 has artificially inflated apprehension numbers because those expelled are left with no choice but to try again and again to seek safety.
Let’s remember that Poland, a country smaller than the state of New Mexico, just took in 2 million refugees in one month. The United States can certainly ensure a fair and orderly asylum system to welcome people with dignity. It’s the right — and legal — thing to do.
Katharina Obser, Washington
The writer is director of the Migrant Rights and Justice program at the Women’s Refugee Commission.
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Thiessen is chronically wrong, misinformed, and misleading. He’s a righty shill. Why the Post finds it necessary to insult its readers by publishing him is beyond me. But, he’s not the problem here! Merely a “toxic symptom.”
The problem is lack of resolve, planning, and commitment to human rights and the legal rights of refugees and asylum seekers within the Biden Administration and by some misguided Dem politicos. The Administration should be screening, organizing, and “pre-processing” asylum claims in Mexico RIGHT NOW, TODAY, so that there is an orderly, timely process in place BEFORE May 23. An “army” of Asylum Officers and NGO volunteers should be working together NOW to determine what easily grantable applications can be moved to the front of the line and actually granted on May 28 when new regulations go into effect.
From what I’ve read and heard, this isn’t happening. The Administration isn’t taking the necessary and available steps to make the system work at ports of entry and to use that success to establish the system’s credibility among asylum seekers and thereby discourage and “dis-incentivize” dangerous and problematic unauthorized entries between ports of entry.
The best way of “shutting down the Abbotts and the Thiessens of the world” is to get a functioning legal system back in place at the border using available legal tools and new regulations to insure that those entitled to asylum are promptly and favorably processed and admitted and that those not entitled to admission or protection are expeditiously returned.
It can be done! But, NOT the dilatory and confused way the Biden Administration appears to be going about it!
Also, a credible system that provides practical precedents and “real life examples” about who does and who does not qualify for asylum would help combat the misinformation about our legal system spread by smugglers, nativists like Thiessen, and disgracefully, some Dems.
That, in turn, should help individuals in countries in crisis to make better, more informed decisions about whether to seek asylum in the U.S. Also, the Biden Administration needs a robust, realistic refugee program for Latin America and the Caribbean. That would make it unnecessary for those who are refugees to come to the border to apply for asylum.
Katharina, you need to pick up the phone, call your contacts in the Biden Administration, and get them off their tails and laser-focused on solving the problems, before it is too late, rather than “wandering in the wilderness.” Sadly, Thiessen isn’t the only one talking nonsense and spreading misinformation!
Supposedly responsible officials in the Biden Administration, those who have disgracefully dragged their collective feet on lifting the Title 42 charade, restoring the rule of law to asylum, and long overdue due process reforms of the Immigration Courts, are “channeling Thiessen.” That’s as idiotic and counterproductive as it is immoral. It’s also “bad politics” — even if some Dems are too blind and scared to admit it!
Inexcusably, the experts who understand what’s happening at the border, the disastrous human effects, and who have the skills and visionary thinking essential to restore the rule of law at the border are largely “on the outside looking in.” But, Katharina, if you and other leaders of the NGO community can’t get the Biden Administration out of their “perma-funk” and focused on pulling out all the stops to fix the asylum system by May 23, their “planned failure” will become your never-ending problem. Worst of all, vulnerable, innocent humans, who want only to be treated fairly and in accordance with law, will continue to suffer unspeakable fates at the hands of our Government’s ineptitude!
Elliot Spagat and Paul J. Weber report for the AP:
. . . .
Last month, the Biden administration unveiled a long-discussed and potentially significant change to expand authority of asylum officers to decide claims, not just initial screenings. It is designed to decide cases in months instead of years, but officials say there are no additional funds for its launch, expected in late May, and to expect a slow start.
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Read the complete article at the link.
A “slow start” = DOA! If you’re not going to use it to make asylum work at the Southern Border after the lifting of the Title 42 blockade, when are you going to use it? There are ways that a competent Government could have made this work.
Why push for and tout a change you’re not fully prepared to implement? How come with 16 months to solve a “day 1” problem they campaigned on (for Pete’s sake), the Biden Administration is still “shooting blanks?”
Former insider tip: There are always resources and methods to deal with the “really important stuff” in Government. I was involved in numerous “immigration emergencies” over several decades as a Government executive and manager under Administrations of both parties. I never remember telling anyone or being told “we can’t afford that.” It was always a question of “make it happen,” and we’ll worry about how to pay for it later. So that tells you where an orderly asylum system at the border ranks in this Administration.
As May 23 approaches, the inexcusable failure to reform the Immigration Courts to bring in and empower competent practical scholars with the skills to make the asylum system work in a fair, efficient, manner driven by due process is likely to loom larger and larger, despite Garland’s concerted effort to ignore it. “Expedited dockets,” relying on judges who barely know how to grant asylum, let alone move grants fairly and efficiently through the system, is NOT going to solve the problem.
Actually, a minimally competent Administration could have worked with NGOs over the past month to identify, screen, prioritize, and informally process grants, screen the refugees for COVID, and parole them in under Title 42 exceptions to have their grants “finalized” by Asylum Offices in the U.S. on or shortly after May 28.
But that would take folks with some imagination andthe expertise to run rational “expedited procedures” rather than the clueless, backlog enhancing, “Clown Show” 🤡 that Garland and Mayorkas have employed to date!
It would also take officials who really believe that legal asylum is a right and a key part of our legal immigration system that should be embraced, not feared, shunned, and disabled. Obviously, that belief is lacking among the Biden politicos.
Expediting grantable asylum cases without having to go through the Immigration Courts was what the Asylum Offices originally were created to do.But, it appears that the Biden Administration views the Asylum Office more as a potential “denial assembly line” that will move more quickly than the malfunctioning “denial factory” that Sessions and Barr constructed in the Immigration Courts and that Garland has, inexplicably, retained in its “weaponized against asylum seekers” structure and staffing.
“White Guy” cases, like Ukrainians, presumably can be whisked through the new system to success. Meanwhile, “Nonwhite cases” can be killed off rapidly and then assigned to “denial judges,” with records of faithfully killing most asylum cases, to “shoot anything that might still be moving.”
That process doesn’t appear geared to garner much assistance from the only groups who could actually “bail the Administration out” at the border —NGOs and asylum experts. But, despite the human rights rhetoric when seeking votes in 2020, this Administration appears to be more committed to external chaos, protestations of helplessness, and finger-pointing than it does to creative problem-solving and running a fair, functional legal asylum system.
Secretary Mayorkas Designates Cameroon for Temporary Protected Status for 18 Months
Release Date: April 15, 2022
WASHINGTON— Today, the Department of Homeland Security (DHS) announced the designation of Cameroon for Temporary Protected Status (TPS) for 18 months. Only individuals who are already residing in the United States as of April 14, 2022, will be eligible for TPS.
“The United States recognizes the ongoing armed conflict in Cameroon, and we will provide temporary protection to those in need,” said Secretary Alejandro N. Mayorkas. “Cameroonian nationals currently residing in the U.S. who cannot safely return due to the extreme violence perpetrated by government forces and armed separatists, and a rise in attacks led by Boko Haram, will be able to remain and work in the United States until conditions in their home country improve.”
A country may be designated for TPS when conditions in the country fall into one or more of the three statutory bases for designation: ongoing armed conflict, environmental disaster, or extraordinary and temporary conditions. This designation is based on both ongoing armed conflict and extraordinary and temporary conditions in Cameroon that prevent Cameroonian nationals, and those of no nationality who last habitually resided in Cameroon, from returning to Cameroon safely. The conditions result from the extreme violence between government forces and armed separatists and a significant rise in attacks from Boko Haram, the combination of which has triggered a humanitarian crisis. Extreme violence and the widespread destruction of civilian infrastructure have led to economic instability, food insecurity, and several hundred thousand displaced Cameroonians without access to schools, hospitals, and other critical services.
This marks the first time the Secretary of DHS will permit qualifying nationals of Cameroon to remain temporarily in the United States pursuant to a TPS designation of that country. Individuals eligible for TPS under this designation must have continuously resided in the United States since April 14, 2022. Individuals who attempt to travel to the United States after April 14, 2022 will not be eligible for TPS. Cameroon’s 18-month designation will go into effect on the publication date of the forthcoming Federal Register notice. The Federal Register notice will provide instructions for applying for TPS and an Employment Authorization Document (EAD). TPS applicants must meet all eligibility requirements and undergo security and background checks.
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According to TRAC, there were 3,191 pending Cameroonian cases in Immigration Court as of March 22, 2022. https://trac.syr.edu/phptools/immigration/court_backlog/. On the basis of my experience, I would guess that most of these are in the mid-Atlantic region.
Cameroonian asylum cases were a “staple” in Arlington over my 13 years on the bench ending on June 30, 2016. For example, in FY 2012, they were approximately 9% of my asylum docket, although that number dwindled between then and my retirement.
The other 1/3 of cases are disposed of in “other” ways. This indicates that with TPS as a tool, almost all of the pending Cameroonian cases at EOIR could be resolved in short order without diminishing anyone’s rights.
That’s a “drop in the bucket” on a 1.8 million case backlog. But, it does suggest that better docket management tools, ones that comply with due process, are available to Immigration Judges and could be built upon for the future with more visionary and due-process-focused leadership at EOIR and DOJ.
Sadly, this profile also confirms that the Biden Administration’s illegal use of Title 42 to return Cameroonians to harm’s way without an opportunity to apply for asylum has been exactly the race-based, grotesque violation of asylum laws, human rights, and human dignity that critics have asserted.
It also graphically demonstrates why real Democrats, core progressive supporters who put Biden and company in office, must aggressively stand up against the disgraceful agitation by a minority of Dem legislators and uninformed, amoral politicos within the Administration to retain the already totally unjustifiable Title 42 blockade!
Continuing violation of domestic and international law through use of Title 42 is NOT, I repeat NOT, an option! Yes, the Administration needs to get a plan in place for an orderly restoration of asylum processing for Cameroonians, Haitians, Latin Americans, Ukrainians, Russians, Afghans, and allother nationalities at our Southern Border.
Fair, humane, advance processing of those seeking asylum at the border NOW is the essential key to avoiding a mess on May 23. Pumping credibility, efficiency, humanity, and proper generosity into the asylum system at the border NOW will reduce the chances of an “immediate backlog” come May 23.
More importantly, showing that our laws can work in a fair, humane, and efficient way will encourage individuals seeking asylum to come to legal ports of entry to apply, rather than seeking more dangerous and difficult irregular entry that does not hold out the same prospects for rapidly obtaining legal status. Why wouldn’t legitimate asylum seekers present themselves at legal ports of entry if we had a fair, functioning, transparent system for processing them?
By eliminating the need and reducing the motivation for legal asylum seekers to attempt irregular entries to obtain refuge, the traffic between ports of entry should be reduced even though of course not eliminated. And the “expedited removal” procedures available under current law to CBP for those apprehended without credible asylum claims while attempting unauthorized entires are perfectly adequate to quickly process removals of those with no legal claim to be here!
Assuming that all or most asylum seekers will attempt unauthorized entries between legal ports will become a dangerous “self-fulfilling prophecy.” Yet, to the extent that the Biden Administration has a plan, it appears to be driven by the misguided notion that all the “action” will be at unauthorized crossing points. See, e.g., https://immigrationimpact.com/2022/04/12/what-is-bidens-plan-to-end-title-42/ (a sad commentary on wobbly, uninformed, unprincipled, pedestrian, un-creative thinking about an important solvable problem if I’ve ever seen one).
That’s only going to happen if the Administration continues to ignore the pressing need for immediate steps to establish the credibility of the asylum system at ports of entry.
The Administration went to considerable trouble to establish a “new” regulatory framework for processing asylum claims at the border (which becomes effective on May 28). I was one of those who pointed out serious flaws in the new system adopted.
One of the main defects is that for integrity, legal guidance, and effective supervision it heavily relies on Garland’s dysfunctional, hopelessly backlogged, and still anti-asylum-tilted Immigration Courts, at least where some of the common types of asylum applications at the border, like those from Northern Triangle countries, are concerned. These “courts that aren’t really courts” have shown a disturbing lack of asylum expertise and little effective commitment to a fair and practical application of asylum laws nationwide. It’s basically still a “denial factory” — just as Sessions and Barr staffed and manipulated it to be. That has spelled disaster in the past and will continue to do so in the future unless it can be “sidestepped” by granting more cases at the border without calling on these “courts.”
There’s where the “new system” has potential to work! One key advantage of the “new system” that many of us applauded is the potential for the USCIS Asylum Office expeditiously to grant many more claims at or near the border, thus entirely avoiding the broken Immigration Courts, prolonged detention, and releasing individuals to the interior without status.
As asylees, refugees can be admitted in a legal, work-authorized status right off the bat. Not only does that eliminate the never-ending debate about appearing for later Immigration Court hearings, but it also helps the economy and resettlement by putting individuals anxious to support themselves and their families directly into the workforce at a time when we need workers in many segments of the economy! It also avoids the current wildly inconsistent, unprincipled, and often defective asylum adjudication that now plagues Garland’s Immigration Courts, particularly in border areas and detention centers.
But, success isn’t going to happen by “magical thinking,”operating in “Stephen Miller’s world,” repeating platitudes about border crises, and reviving the past mistakes of “enforcement/deterrence only regimes.” I call BS! A “border crisis” is what happened in Poland! We’re not even remotely close to that!
It requires the Biden Administration to get the lead out, shut down the “naysayers,” work with NGOs, and get the expertise and manpower in place NOW at ports of entry and in Mexico to achieve success on May 23! But, continuing the illegal Title 42 charade/blockade is not an option that is on the table!
Or maybe Abbott, like many other Republican politicians, simply thinks his voters are stupid.
He might presume that angry voters will see backlogged traffic, empty store shelves and struggling businesses and blame President Biden, even though this latest contribution to supply-chain woes comes courtesy of Abbott’s own policies. If that sounds far-fetched, recall that Abbott and other Republicans have tried to blame Biden for mounting covid infections and deaths, even as these same politicians have deliberately sown distrust in vaccines and undermined or outright barred efforts to increase vaccination and other covid-prevention measures.
If Abbott’s border policy is motivated by the last of these possible explanations — if he’s assuming Texans are too dense to figure out causality here — let’s hope voters will be motivated to prove him wrong.
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Read Catherine’s full article at the link.
As Catherine points out, Texas voters have a golden opportunity to show their “clown prince” 🤡the door this fall. But, I wouldn’t count on it.
Meanwhile Abbott claims to have negotiated “security agreements” with several Mexican Governors thereby “allowing” him to “relax” his unneeded blockade. Exactly what this grandstanding means is opaque. Trucks entering the U.S. are ready checked for drugs and migrants by CBP at the border. Somehow, I doubt that Mexican authorities are going to do a better job than CBP.
Of course, the best way to deal with Abbott’s stunts is for the Biden Administration and NGOs to work together to encourage asylum seekers to present themselves in an orderly manner at legal ports of entry once the “Title 42 Blockade” is lifted. Indeed, as I’ve perviously suggested, there should be a system in place NOW to “prescreen” asylum applications in Mexico and to parole as many as possible of those whose claims pass credible fear and who can be resettled away from the border areas in advance of May 23. That would avoid long lines and confusion.
New regulations that would allow Asylum Officers to outright grant well-documented asylum cases go into effect on May 28. Surely, somebody out there in the “world of rational thinkers and doers” should be able to “leverage” this opportunity to cut through the BS and finalize grants of deserving cases without more bureaucratic red tape. Plan to show that that the new system can work. Start building the necessary credibility and confidence in orderly legal processing among asylum seekers now, rather than hoping that they all die or go away before May 23. They won’t.
That’s just an “expanded version” of what’s already happening for Ukrainian asylum seekers at the border. But, unfortunately, I haven’t seen much hard evidence that either the Administration or the NGOs are planning for “achievable success” rather than “finger pointing failure” on May 23. The real victims here are, as usual, the migrants whose humanity and rights are routinely ignored in the politicization of the border.
Let’s look at what has happened with another Abbott stunt mentioned by Catherine:“Bussing” asylum seekers from the border to downtown DC and dropping them near the headquarters of Fox News, NBC News and C-SPAN. Obviously, Abbott anticipated a “Fox photo op” of bewildered folks wandering the streets, causing traffic jams, and sparking anti-immigrant protests and overreaction by local Dem officials.
But, thanks to local NGOs, the opposite has happened. Volunteers have met the arriving busses, helping those bound for other areas to make the right transportation connections and directing those bound for the DMV area to the appropriate local organizations who can assist them in orderly resettlement.
Most of the migrants who volunteered for the busses expressed gratitude for the free transport. Few appeared to know that they were intended to be part of “Nativist Political Theater.” Both CBP and local NGOs at the Texas border worked to facilitate those seeking transportation to use the busses.
Evidently inadvertently, in this case Abbott’s publicity stunt appears to have “morphed” into a good example of how cooperation among Federal and state authorities, NGOs in different areas, and migrants themselves can work to facilitate orderly processing of migrants once they are in the U.S.
Who knows if this initial success will be temporary or long term. If the latter, it will be interesting to see if Abbott will continue to fund efforts to make the immigration system work rather than to showcase itsanticipated failures. But, in any event, this should be a practical example for the Biden Administration of how public-private partnerships, teamwork, and cooperation can work even across party and ideological lines.
Unfortunately, to date, the Biden Administration’s wobbly approach to immigration and human rights has failed to capitalize on almost every opportunity to show the benefits of an orderly, legally compliant, and humane immigration policy.
Will they finally get this one right? Or, as Catherine has suggested before, will this just be another in a too long line of Biden’s missed opportunities to show that the rule of law and legal immigration work for America?
🇺🇸Due Process Forever!
PWS
04-15-22
UPDATE:
RAMPELL “DUNKS” ON ABBOTT AS TEX GOV FORCED TO RESCIND IDIOTIC STUNT ORDER!
The American Trucking Assn. called the inspections “wholly flawed, redundant and adding considerable weight on an already strained supply chain.”
This stunt, not surprisingly, turned up neither a single smuggled individual nor any drugs. They did turn up some safety violations, actually the only thing Texas officials were legally empowered to inspect for. But, safety problems have been around forever, and Abbott hasn’t given them a second thought as he misallocates state resources on a grotesque scale. See, the bogus “Operation Lone Star.”
The best way to deter human smugglers is to reopen ports of entry to asylum seekers and grant the many worthy applications out there, thereby ending years of manipulating asylum law to deny protection to legally qualified refugees.
While there of course will always be pressure on the border, the many individuals who seek only a fair chance to present their legal claims for asylum through our legal system will no longer be forced to use smugglers to gain “black market” refuge just because the Government has shirked their legal responsibilities!
That ought to make the border safer and CBP’s job at least somewhat easier.
It all depends on whether the border asylum system is credible. So far, no Administration has succeeded in pulling that off.
All have employed various degrees of bias and inhumane detention to “hold down” the number of asylum grants at the border. A legitimate legal asylum system at the border is possible, particularly if accompanied by a robust refugee program beyond the border. But, possible doesn’t mean probable!
Associate Provost/Co-Director of the Immigration Clinic/Professor of the Practice Laila L. Hlass Tulane Law
Laila, my friend, everywhere I look you’re making news! Here’s Dan Kowalski @ LexisNexis on Layla’s well-deserved Lisa Brodyaga Award from the National Immigration Project:
Laila was a “guest lecturer” in my Refugee Law and Policy class during her time as a Fellow at the CALS Asylum Clinic at Georgetown Law. Since then, I have “returned the favor” by traveling to Tulane Law, both virtually and in person, to speak to Laila’s class and other immigration events. Laila has been recognized for “putting Tulane Law on the map” for innovative practical scholarship in immigration and international human rights and excellence in clinical teaching. No wonder she carries a “string of titles” at Tulane Law!
Laila is also one of many exciting examples of how clinical immigration and human rights professors have not only moved into the “academic mainstream” at major American law schools, but have been recognized as leaders and innovators by the larger academic communities in which they serve. Immigration law teaching has come a long way since the late INS General Counsel Charlie Gordon’s Immigration Law Class at Georgetown was the “only game in town.” (Historical trivia note: My good friend the late BIA Judge Lauri Filppu and I “aced” Charlie’s class in 1974, thus “besting” our then-supervisor at the BIA. That could have been a “career limiting” move. But, we both ended up on the “Schmidt Board” in the 1990s.)
Many congrats, Laila, on an already amazing career with even more achievements and recognition in your future. Thanks for being such a brilliant, inspiring, and dynamic role model for the New Due Process Army!
“Like this gentleman of yore, AG Garland takes a rather “laid back” approach to the ongoing due process disaster in his Immigration Courts.”Scott Bixby National Reporter The Daily Beast
As the immigration court system strains under the weight of its biggest case backlog in history, the Biden administration is racing to fix it before it breaks entirely.
But breaking the system might be the only way to save it.
On the campaign trail, Joe Biden repeatedly vowed to create a “fair and humane immigration system,” replacing a faltering and faceless bureaucracy with swift due process. the Biden administration has since announced measures intended to alleviate the increasing pressure on a strained system once deemed “death penalty cases in a traffic court setting.”
But the sweeping, by government standards, tactics announced by the administration last month—which include adding as many as 100 new immigration court judges to the bench under Biden’s latest budget proposal, allowing asylum officers to evaluate some cases instead of those same overburdened judges, and encouraging Immigration and Customs Enforcement attorneys to clear “low priority” cases—may still not be enough to make a real dent in the backlog of cases that has reached its highest point ever.
“Trial dates that used to be scheduled out two, three, even five years sometimes, now don’t even get a hearing or a judge assigned,” said Michael Wildes, a second-generation immigration attorney who has represented high-profile clients from Pelé to Melania Trump. “My litigation team leader was in court this past Monday in Newark, where a judge there advised that she has cases open from the ’90s!”
One hundred new judges, Wildes said, “will be a drop in the bucket compared to the problem.”
“The current structure of the system is fatally flawed,” said Judge Dana Leigh Marks, the former president of the National Association of Immigration Judges who served for 35 years on the bench. “In the immigration removal system, any violation of law, no matter how minor and no matter how strong counterbalancing equities are, has resulted in placing people in removal proceedings. As long as that situation persists, it would be reasonable to anticipate that the court will be unable to clear its backlog or stay current.”
Marks, who coined the “traffic court” description of the immigration legal system, joined nearly a dozen other leading figures in the immigration law space in telling The Daily Beast that the long-term solution to the backlog of cases pending before immigration courts lies not in hiring more judges, but in removing the courts from the Department of Justice’s jurisdiction entirely.
“The cases are growing in complexity, the average judge is less experienced than ever, and every new surge of filings results in a new prioritization system imposed on the courts,” said David Bier, a research fellow with a focus on immigration at the Cato Institute and an expert on the immigration legal system, who said that even doubling the number of judges, as Biden once promised, wouldn’t be sufficient to stop the growth in the backlog.
“Staffing matters,” Bier said, “but the courts need structural reforms to improve their efficiency.”
With a little more than six weeks until the end of Title 42, the much-maligned public health order that has effectively barred asylum admissions at the U.S. southern border since the beginning of the coronavirus pandemic in March 2020, the administration is bracing for a massive uptick of crossings at the U.S. southern border.
That surge—estimated by the Department of Homeland Security to reach as many as 18,000 people apprehended at the U.S.-Mexico border a day—will further heap cases on top of the largest backlog in immigration cases in history, now at 1.7 million cases and counting. That’s more than double the number of pending cases half a decade ago.
The Biden administration has taken steps to reduce the pressure on immigration judges to reduce the backlog at the expense of due process, eliminating a Trump-era requirement that judges clear at least 700 cases per year and requesting that more than 80 percent of a requested budget increase for U.S. Citizenship and Immigration Services go towards caseload and backlog reductions.
But increasing the number of immigration judges by 15 percent, as Biden did in his first year in office, has yet to change the stalled pace of case clearance. The estimated processing time for asylum cases—which make up roughly one in four cases in the backlog—is now at longer than 63 months, according to U.S. Citizenship and Immigration Services.
“It’s basically a big mess,” summed up Jason Dzubow, an immigration attorney in Washington, D.C., “and so far, throwing more immigration judges at the problem has not reduced the backlog.”
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Read Scott’s full article at the link.
One could tire of saying the same things over and over. But, with “Team Garland” the obvious becomes the unattainable.
White Nationalists Jeff“Gonzo Apocalypto” Sessions and “Billy the Bigot” Barr more than doubled the number of IJs while tripling the already out of control backlog.
As every expert told the Biden Administration from the “git go,” more judges without drastic personnel changes and major structural, procedural, “cultural,” attitude, and quality control reforms won’t solve the problem. Indeed, all empirical indications are that it will make things worse!
While Garland hasn’t accomplished much in his time in office, he did prove the truth of the latter statement. While increasing the number of IJs by a modest 15%, he has built new backlog at the fastest rate ever, with more than 1.8 million pending cases!
But, that’s not all folks. Even in the “garden days” of EOIR “off docket” cases were an issue. Now, following four years of “maliciously incompetent” Trump regime meddling with EOIR, I’ve got to believe that there are thousands, if not hundreds of thousands, of “off docket” cases floating around the bowels of EOIR, maybe never to be heard of again. So, it’s almost certain that EOIR’s “official numbers” (ask TRAC experts about the reliability of EOIR stats) understate the real scope of the problem.
One essential reform that was needed right off the bat that Garland ignored was better judges, not necessarily more judges!It should be obvious, even to someone as willfully blind as Garland, that the Sessions/Barr program of “packing” the BIA and the Immigration Courts with judges who lacked immigration and human rights expertise, were biased against asylum seekers, would “go along to get along” with stomping due process and immigrants’ rights, or all of the foregoing was a prescription for disaster.
What “moves” a system is expert, “practical scholar” judges, operating with some independence and courage, who can recognize the many pending grantable cases on the docket, also identify those that don’t belong on the docket, group them using “practical precedents” on what a successful case looks like, and motivate, or if necessary cajole or force the parties to get together and complete these cases. Many of them could be completed, without appeals, on “short dockets” or returned to DHS for completion.
Then, the courts could concentrate on the much smaller number of cases that actually have issues needing litigation and requiring expert decision-making.
Instead, the EOIR system, from top to bottom, screws around trying to come up with specious ways of limiting relief, avoiding jurisdiction, creating procedural and evidentiary hurdles, or denying grantable cases. Additionally, gimmicks like “Aimless Docket Reshuffling” and “expedited dockets” are mis-used to “max out” the number of in absentia orders. But, as many of those latter must be reopened, some only after protracted litigation all the way up to the Courts of Appeals, that only adds to the chaos, false narratives, and squandered resources. Not to mention that it makes the entire system chronically unfair — a parody of justice!
There is absolutely no reason why Garland shouldn’t have installed a merit-based “re-competition” system for many of the judges hired or promoted during the Trump regime — starting with the precedent-setting BIA — a gang of “Dr. Nos and Don’t Buck the Party Liners” if I’ve ever seen one!
There are plenty of “other” attorney positions in the DOJ or elsewhere in the Executive branch for attorneys who can do certain types of legal work, but aren’t “best qualified” to be Immigration Judges under today’s conditions. IJs are DOJ attorneys in the so-called “excepted service;” they certainly are not entitled to “life tenure” in any particular attorney position. At most, those who aren’t selected after merit re-competition could expect “reassignment” to another government attorney position at the same pay. Happens all the time, particularly at the DOJ!
A merit selection system for Immigration Judges at both the trial and appellate levels requires substantial outside expert participation. That’s a marked change from the opaque, highly bureaucratic, too often “insider tilted” system used by DOJ and EOIR.
Fortuitously for Garland, there are good “models” out there for such a merit system that could be “tweaked” for EOIR. The DC Courts, U.S. Magistrate Judges, and U.S. Bankruptcy Judges merit-selection systems are among them. Sadly, however, Garland has been “asleep at the wheel” as hisbroken “court” system veers off the road and goes down the embankment.
It’s not just immigrant justice that is dying here. While Garland and his lieutenants might choose to be “in denial,” the Immigration Courts are the “retail level” of today’s American justice system. When they finally give way and crumble, as they surely will do without Congressional intervention or better-performing Attorney General, the rest of our legal system is likely to come crashing down with them.
But, you’ve heard it all before on Courtside. Just tragic for our nation that the right folks aren’t paying any attention while there is still time to rescue the system.
Opinion: Democrats are missing the bigger immigration issue
By Catherine Rampell
Democrats are terrified that a coming border surge might tank their midterm chances.
But they have largely ignored a much more serious immigration-related political risk. The problem in the months ahead isn’t that the United States will allow in too many immigrants; it’s that we’ll admit too few, particularly the kinds of workers who can fill critical labor-market shortages.
The Biden administration recently announced it would soon end Title 42, a Trump-era border-control policy. Citing the public health emergency when it invoked the policy in March 2020, the Trump team used the pandemic as a pretext to expel all arriving migrants without first allowing them to apply for asylum, as they have a legal right to do. Public healthexpertsandimmigrationadvocates — and many elected Democrats — have long condemned the policy, which has been used to carry out more than 1.7 million migrant expulsions.
President Biden’s own appointees have called the policy illegal and inhumane, with multiple high-level officials blasting it when they resigned. But Biden delayed reversing Title 42, fearing bad optics and attacks from Fox News. (Which arguably was going to attack him as an “open borders” president regardless.)
As expected, right-wingers are now catastrophizing about the looming “Armageddon” that will follow Title 42′s unwinding.
As a result, some worried Democrats are demanding that Biden keep this (likely illegal) policy in place. They have been so fixated on bad-faith right-wing attacks that they have missed the bigger, and much more serious, immigration-related liability: the millions of immigrants whose absence from the U.S. workforce is putting upward pressure on inflation.
Which Democrats are being blamed for, and which voters appear to care much more about.
The United States is experiencing inflationary levels not seen in four decades. Americans are unhappy, and they are more than five times as likely to cite “inflation,” “cost of living” or the economy in general than immigration as the nation’s biggest problem. These economic concerns are, however, rooted at least partly in immigration policy.
Worker shortages are pervasive, with vacancies hovering around record highs. The resulting disruptions to supply chains and normal business operations have raised costs for companies and consumers. Some of these “missing” workers retired; some dropped out of the labor force because of care issues or illness. But a huge chunk were foreign-born workers who either never arrived in the United States in recent years or who were already here but have been forced out of their jobs because of government incompetence.
There are about 1.8 million fewer working-age immigrants in the United States today than would be the case if pre-2020 immigration trends had continued unchanged, economic researchers Giovanni Peri and Reem Zaiour estimate. Unsurprisingly, they also find that industries that had a higher percentage of foreign workers in 2019 — such as hospitality and food services — tend to have higher rates of unfilled jobs now.
These immigrants, legal and otherwise, are “missing” because of a combination of Trump policies, covid-19 (which the Trump administration cited to justify imposing even more immigration restrictions) and Biden’s foot-dragging.
Although Biden pledged more humane and efficient immigration policies when he ran for president, he has been slow to reverse many of President Donald Trump’s onerous paperwork requirements and other policies designed to reduce legal immigration. Biden’s sluggishness owes partly to the magnitude of the challenge of rebuilding the U.S. immigration infrastructure — and partly to that deep Democratic fear of how Fox News et al. might portray any efforts to help immigrants.
As a result, last year, the United States experienced the lowest levels of new international migration in decades, census data shows.
. . . .
A border surge is infinitely more telegenic and attack-ad-friendly than backlogged paperwork. But the missing immigrant workforce is what more directly affects voters’ pocketbooks — and, by extension, Democrats’ political fortunes.
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Read Catherine’s complete article at the link!
There is no need for a self-created “border surge” on May 23! We have a potentially quite efficient asylum screening and adjudication process in our existing law. If it were properly staffed and run, with competent legal and judicialoversight, asylum seekers would use it — even if “success” is far from guaranteed.
Experience has shown that asylum seekers in the U.S. who are represented, and therefore understand the system and their obligations, faithfully appear for hearings nearly 100% of the time, even when they appear likely to lose. Just because we as a nation have lost faith in our ability to operate under the the rule of law doesn’t mean that asylum seekers have! Obviously folks who have “hung around” in Mexico, in life-threatening conditions, for months or years, believing in a false promise of future fair and humane treatment by the U.S. aren’t as easily persuaded that our legal system is a sham as are our own politicos, bureaucrats, and pundits.
Sure, folks without asylum claims and those who don’t trust the system will continue to attempt unauthorized entry — particularly if the legal system lacks credibility, thus allowing smugglers to convince migrants to evade it.
But, with a robust asylum system functioning at ports of entry, CBP won’t be diverted by squandering resources “apprehending” (a serious misnomer) individuals who want nothing more than a fair and timely chance to present their asylum claims. CBP can concentrate their resources on those who truly intend to evade the legal system.
Even without the bogus Title 42, the law provides more than adequate tools for dealing with unauthorized entry. Those without documents are subject to “summary removal” by CBP Agents. Those subject to summary removal who claim asylum can be promptly screened for “credible fear” by trained USCIS Asylum Officers. Those who “flunk” credible fear are summarily removed under the existing order. Those who “pass” can be funneled into the legal asylum system and processed accordingly.
If you are a believer in “deterrence theory” for migrants who don’t have credible asylum claims, then the “expedited summary removal process” provides just that. No need to illegally invoke Title 42!
If the Obama, Trump, and now Biden Administrations had spent time and resources training Asylum Officers and reforming the Immigration Courts, instead of screwing around with futile (sometimes illegal) “enforcement only” gimmicks, idiotic walls, inhumane, expensive detention, inane messaging, and deterrence, there wouldn’t be largely manufactured “border emergencies.” Just a variety of fairly predictable “humanitarian situations” and opportunities to show how the rule of law works in a functioning democracy.
For example, the much feared and ballyhooed “caravan” that had Trump scared out of his (already limited) wits moved in “slow motion” to the border. A competent Administration could have processed them fairly, humanely, and timely upon arrival or shortly thereafter. Indeed, a competent Administration probably would have worked with the Mexican authorities and the UNHCR to have processed members ofthose “caravans” for refugee status, in an orderly manner, at a point in Mexico well-removed from our border!
If, after truly fair, humane, and timely processing at ports of entry few qualified (I deem this unlikely under a truly fair and competent system, but perhaps possible, who really knows, since we have been “chicken” to fairly adjudicate asylum claims from Latin American and the Caribbean for many years), then there’s your “legal deterrent” (for those who believe in deterrents) to those who might seek to come in the future.
“Caravans” don’t cross the border irregularly unless legal ports or entry are closed or de facto unvailable to them. Even then, most asylum seekers in caravans would prefer to wait for legal processing if it were available in a predictable, orderly, humane, fair, and timely manner. The Trump kakistocracy’s decision NOT to follow asylum laws and procedures at ports of entry actually caused unnecessary chaos, created danger, and provoked and encouraged unauthorized entries. The Biden Administration has, unfathomably, followed in Trump’s footsteps!
The “missing piece” for decades, across Administrations of both parties, has been a robust, realistic, well-staffed “outside the US” refugee processing system for Latin America and the Caribbean. If we REALLY don’t want folks “trying their luck” on asylum at the border, then give them honest and prompt answers to their refugee claims in or nearer to the countries in conflict they are fleeing.
The current law is by no means perfect. But, it’s a whole lot better than the politicos and bureaucrats who, for most of the past four decades, have failed to take straightforward, achievable steps to “make it work.” Refugee admissions overseas, and asylum admissions in the U.S. and at our borders, are a key element of our legal immigration system. It’s time to stop pretending otherwise!
And, as Catherine cogently points out, rapidly approving work authorizations and all types of applications for legal immigration under existing law also should have been “low hanging fruit” for the Biden Administration. A group of summer college students could have been trained in short order to wipe out the backlog of Employment Authorization Documents (“EADs”) during the summer of 2021.
Even now, with just a little initiative, creativity, and energy, USCIS could hire and train summer employees to handle many routine and repetitive “adjudications.” All “adjudications” are NOT equal! EAD backlogs, intentionally created by the Trump kakistocracy, are totally unnecessary and inexcusable under Biden.
How many retired Asylum Officers, USCIS Adjudicators with asylum experience, retired Immigration Judges, retired BIA staff attorneys, and retired Congressional immigration staffers has USCIS “rehired” during the past year to prepare for the reopening of the border?If they haven’t, why not? It’s not too late to get more qualified individuals on board temporarily and give them to tools they need to fairly and timely process credible fear cases.
How many agreements has USCIS entered with NGOs to prescreen, organize into orderly lists, and, where necessary, represent individuals now waiting at or near the Southern Border. If not, why not get some of those agreements into effect on an “expedited” basis by next Monday?
In Government, everything seems to be a candidate for bogus “expedited treatment” EXCEPT common sense, readily available measures that actually solve problems! Why is that? What’s an Administration that got elected by claiming “Government can work” going to do to prove that before May 23! Stop “making excuses for failure” and start solving problems!
It’s not rocket science! Dems must stop “hand wringing” about what they didn’t do in the last year and start making the system work under current conditions. That’s what “good government” is supposed to do!
Poland, a country of fewer than 40 million about the size of a large U.S. state, was able to handle 4-5 million Ukrainian refugees in a matter of weeks. Meanwhile the US is “paralyzed” by the idea that 60,000 might apply with more than a month of lead time to prepare, and an established, if now suspended, legal framework to use. Not to mention that Biden had more than a year’s “advance notice” that the asylum system would need rebuilding and rejuvenation at the Souther border. Gimmie a break! The Biden Administration was put in office largely to “make Government work” — not to mindlessly repeat GOP White Nationalist “woe is me” talking points!
On a smaller scale, religious organizations and voluntary agencies mobilized and organized almost overnight to assist the U.S. Government in processing Ukrainian refugees at the border. Why couldn’t those efforts be expanded and replicated for the largely non-White refugee hopefuls currently waiting? Why create an “emergency” that needn’t be? Why not put more time, effort, and creativity into ACHIEVING success, rather than thinking of excuses for anticipated failure or shifting blame to the “victims?”
Honestly, as the late, great political pundit
Casey Stengel would have said,“can’t anyone here play this game?”
“Time and time again, the Biden Administration’s inept and unprincipled approach to immigration and human rights leaves this guy scratching his head.” PHOTO: Rudi Reit Creative Commons
Also, Catherine Rampell understands the complex issues of immigration better than any “top level” official in the Biden Administration that I’m aware of. If they aren’t going to hire her, they should at least heed her advice. It’s free, accessible, clearly and succinctly written, and almost always “spot on!”
EOIR Announces Appointment of Mary Cheng as Deputy Director
FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Mary Cheng as the agency’s Deputy Director. Judge Cheng has served EOIR since 2009, including as a Deputy Chief Immigration Judge for the past five years.
“Judge Cheng brings a welcome combination of experience and expertise, preparing her for certain success as EOIR’s deputy director,” EOIR Director David L. Neal said. “Her experience on the immigration bench, her expertise as a managing judge, and her appreciation for the view from both counsels’ tables perfectly position her to help lead the agency to a reinvigorated commitment to our mission and to public service.”
As Deputy Director, Judge Cheng will assist Director Neal in supervising and managing all EOIR components, and developing and implementing agency policies and short- and long-term strategies.
Since April 2021, Judge Cheng has served as the Regional Deputy Chief Immigration Judge for the Eastern Region at EOIR. She previously served as a Deputy Chief Immigration Judge from 2017 to 2021, and she was the Acting Principal Deputy Chief Immigration Judge from August 2020 to February 2021. Judge Cheng has also served in the New York Immigration Court both as an Assistant Chief Immigration Judge from 2015 to 2017, and as an Immigration Judge from 2009 to 2015. Before joining EOIR, she served as Assistant Chief Counsel for the Department of Homeland Security, Immigration and Customs Enforcement, from 2002 to 2009; and before that, she practiced immigration law in New York from 2000 to 2002. Judge Cheng received her Bachelor of Arts from New York University and a Juris Doctor from the New York Law School. She is a member of the New York State Bar.
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Judge Cheng had a 71.5% asylum grant rate while on the bench in NYC. That makes her an “outlier” (in a good way) among EOIR HQ “honchos” with significant Immigration Court experience.
Judge Cheng spent two years in the private practice ofimmigration law, albeit several decades ago, as well as serving as a JLC at the NY Immigration Court and an ICE prosecutor. So, she has a more “balanced perspective” on the system than many in EOIR.
Interestingly, Judge Cheng’s record on asylum cases is the “inverse” of the nationwide rate, where 2/3 of the asylum cases are denied and many IJs disgracefully reject almost every asylum case coming before them. So, she knows the system is broken, biased, unfair, and unprofessional!
The question is whether she will use her knowledge and skills to stand up for due process and fair treatment of asylum seekers? Or, will she become another in the long line of EOIR “go along to get along bureaucrats” — willing to sacrifice immigrants’ lives for job security and career advancement?
Hopefully, Judge Cheng will implement some “attitude changes” in an agency still far too committed to the Sessions/Barr “culture of denial” and to misusing, abusing, and mismanaging the Immigration Courts as a “deterrent” — carrying out Administration enforcement “priorities” —rather than acting as an independent court system using “enlightened practical scholarship” to guarantee due process and fundamental fairness for the individuals coming before it. EOIR has lost sight of its mission and Garland doesn’t seem interested in or capable of changing that.
As for the “certain success,” predicted by Director Neal, that’s been elusive for some previous Deputy Directors. Three previous Deputies have gone on to become EOIR Director: The late Kevin Rooney, Judge Kevin Ohlson, and the late Juan Osuna. But, “success” in an organization in failure that lacks a dynamic plan for long overdue fundamental personnel, procedural, and structural reforms looks like a tall order. It’s probably“Mission Impossible!”
The only true measure of “success” is whether the community that EOIR is supposed to serve comes to view the courts as fair, humane, and professional. That depends on changing the results of EOIR’s anti-asylum, often anti-immigrant “assembly line” approach to justice and its chronic, backlog-building“Aimless Docket Reshuffling” produced by attempting to please DOJ politicos at the expense of justice. Bureaucratic metrics and bogus DOJ and Administration political goals and agendas are meaningless in the “real world.”
What kind of “short and long-term strategies” will work in a struggling “court” system plagued by a burgeoning 1.8 million case backlog, endemic “Aimless Docket Reshuffling,” an appellate body stuck in reverse, a byzantine “agency management” structure, institutionalized “worst practices,” and too many judges who were the product of a poor selection process and inadequate training? There are some measures that potentially could succeed. But, “Team Garland” has pointedly ignored them with predictably bad consequences.
No one person can change the disastrous trajectory of EOIR. But, someone willing to take risks and give due process and fundamental fairness a chance could make a difference in the lives of the most vulnerable among us. Could Judge Cheng be that person? We’ll see.
