"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Hon. Lawrence O. Burman U.S. Immigration Judge Arlington, VA Pictured addressing conference at CIS PHOTO: YouTube
😎👨🏻⚖️⚖️ HEEEEEEEEEEE’S BACK! — Judge Lawrence O. “Larry” Burman Returns To Bench After 9-Month “Mystery Disappearance!”
By Paul Wickham Schmidt
Courtside Exclusive
Feb. 2, 2022
Reliable sources tell Courtside that previously “missing in action” U.S. Immigration Judge Lawrence O. “Larry” Burman (a/k/a “The Burmanator”) will be back on the bench today at the Annandale Immigration Court. Judge Burman was on the bench at the “Legacy Arlington Immigration Court” at the time of his sudden disappearance around May 2022.
The recently-established Annandale outpost of EOIR can be considered the “direct successor” to the legendary Arlington Court, which passed into EOIR history on October 14, 2022, while Judge B was still missing. Seehttps://immigrationcourtside.com/2022/11/07/⚖️🪦-requiem-for-a-heavyweight-farewell-to-the-arlington-immigration-court/. The Annandale Court inherited the coveted, noble “WAS” docket designation from Arlington (which, in turn, harkened back to the days of yore when there actually was an Immigration Court operating within the bounds of our nation’s capital).
No official explanation was given for Judge Burman’s lengthy absence and abrupt return. “Disappearing judges” are hardly an unusual occurrence at EOIR, where non-transparency is institutionalized.
“Rehabilitation and reappearance” of “disappeared judges” is somewhat rarer, although not unprecedented. Some reportedly are restored to good graces only after surviviung time in rigorous “reeducation camps” rumored to be operating within EOIR’s “secret empire.” In accordance with standard EOIR policies, neither Judge Burman nor anyone within the ponderous EOIR bureaucracy was available for comment on this incident.
Judge Burman’s resurrection is good news for those who practice before the Annandale Court. A number previously expressed to Courtside their worries and grave concerns for the judge’s physical and emotional health and well-being and their well-wishes for his safe return. A few “off the bench, in person” sightings of the renowned jurist toward the end of 2022 gave hope for those who had “feared the worst.”
As previously described in Courtside, Judge Burman has had an illustrious four-decade plus legal career since graduating from Maryland Law in 1978.
Judge Burman has been an Immigration Judge for nearly a quarter-century, serving at the Los Angeles and Memphis Immigration Courts before arriving in Arlington. He has been a leader in court-related CLE, serving as a past chair of the FBA’s Immigration Section and the creator and editor emeritus of The Green Card, that section’s educational newsletter. He also has been an officer of the National Association of Immigration Judges (“NAIJ”), where (perhaps ironically) he successfully represented a number of colleagues charged with disciplinary infractions or wrongfully denied benefits.
Until “grounded” by the Trump DOJ, Judge Burman was one of a limited number of local judges eager and willing to participate in educational events sponsored by bar associations and other groups. A graduate of UVA and Maryland Law, and a U.S. Army veteran, Judge Burman had careers in the “Legacy INS” and private practice before being appointed to the bench by then Attorney General Janet Reno in 1998.
Hon. Lawrence O. Burman U.S. Immigration Judge Arlington, VA Pictured addressing conference at CIS PHOTO: YouTube
By Paul Wickham Schmidt
Courtside Exclusive
July 30, 2022
Reliable sources tell Courtside that highly-respected U.S. Immigration Judge Lawrence O. “Larry” Burman has been suspended with pay from hearing cases at the Arlington Immigration Court. Reportedly, for the past three months, the distinguished veteran jurist has been “banned” from chambers and relegated to deciding motions from home electronically.
The genesis of the suspension allegedly is a complaint of sexual harassment in court filed by the ICE Office of Chief Counsel in Arlington. A source close to Burman says that he told them he has not received any detailed notice of exactly what he has been accused of, nor has he been given any timeline or details about the alleged investigation.
EOIR is notorious for placing judges and others accused of wrongdoing on “administrative leave with full pay” — sometimes for years spanning several Administrations. Meanwhile, they conduct glacially slow “investigations” and dither over what, if any, formal discipline to impose.
Within the bureaucracy, “never-ending investigations” are sometimes used as a device to “persuade” employees out of favor with “management” to retire or resign. In reality, Courtside is unaware of any full-time trained investigative staff assigned to EOIR.
Significantly, DOJ policies do not appear to require suspension of the employee from public duties in a case such as this. “Danger to the personnel” or “disruptive presence” are the primary considerations. See HR ORDER DOJ1200.
Those who know and have worked with Judge Burman would find it absurd to believe that either of these situations apply to him. Indeed, one source interviewed for this article suggested, perhaps tongue in cheek, that “a propensity toward giving respondents a fair hearing” might help explain ICE’s and EOIR’s enthusiasm for having Judge Burman “off the bench.”
Recently, Courtside described Judge Burman and one of his Arlington colleagues as the “gold standard” for fair, expert Immigration Judges. Seehttps://wp.me/p8eeJm-7Ko. From that standpoint, the sudden suspension appears particularly unusual.
The action caught members of the private immigration bar in the DMV area by surprise. One attorney confirmed having merits cases recently scheduled before Judge Burman “orbited” several years out on the docket for no given reason except that Judge Burman was “out” and therefore unable to hear the cases. “Aimless Docket Reshuffling” and “churning” of cases is an endemic problem at EOIR, which is running an astounding, yet rapidly increasing, backlog of 1.8 million cases.
Other attorneys contacted by Courtside reacted with shock, sadness, and concern for Judge Burman’s well being. “I feel so bad to hear that. He is such a nice man and a good judge,” said one local practitioner.
Judge Burman has been an Immigration Judge for nearly a quarter-century, serving at the Los Angeles and Memphis Immigration Courts before arriving in Arlington. He has been a leader in court-related CLE, serving as a past chair of the FBA’s Immigration Section and the creator and editor emeritus of The Green Card, that section’s educational newsletter. He also has been an officer of the National Association of Immigration Judges (“NAIJ”), where (perhaps ironically) he successfully represented a number of colleagues charged with disciplinary infractions or wrongfully denied benefits.
Until “grounded” by the Trump DOJ, Judge Burman was one of a limited number of local judges eager and willing to participate in educational events sponsored by bar associations and other groups. A graduate of UVA and Maryland Law, and a U.S. Army veteran, Judge Burman had careers in the “Legacy INS” and private practice before being appointed to the bench by then Attorney General Janet Reno in 1998.
Check out this Federal Bar Association interview with Hon. Mimi Tsankov, President of the National Association of Immigration Judges. She explains on how she was drawn to a career in immigration law. Earlier this year, Judge Tsankov testified before Congress about the immigration court system backlog, necessary reforms, and related topics.
Here is an ABA panel discussion led by Tsankov on judicial independence.
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Judge Mimi Tsankov is “living proof” that there are leaders currently at EOIR with good ideas and a dynamic vision who could lead a due process/best practices reform effort. The question is why Garland and his lieutenants haven’t paid attention to them!
I am pleased to announce a big win today before the Second Circuit. The Opinion is attached.
The Court held that the government is equitably estopped from denying an application for adjustment of status where: (1) it commits “affirmative misconduct” by failing to comply with an affirmatively required procedure – in this case, the failure to issue a Receipt or Rejection Notice in response to an attempted filing; (2) the applicant reasonably relies on the agency’s misconduct/inaction; and (3) the applicant is prejudiced thereby.
The interesting twist in this case is that the Court declined to reach the underlying statutory issue – concerning the CSPA – on which the District Court ruled in our favor. My take, having litigated and argued the case in both courts, is that the panel was genuinely flabbergasted that the government was pursuing the appeal and took the opportunity to stick it to DHS and issue a ruling on estoppel. The District Court did not even address estoppel, which was my alternative argument and occupied less than 5% of my briefing. My understanding is that the District Court decision – affirmed on other grounds – can still be cited for the substantive/legal conclusions it made regarding the CSPA. (Please correct me if I am wrong).
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Jeffrey A. Feinbloom
FEINBLOOM BERTISCH LLP
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Thanks, Jeffrey. The term “Affirmative Misconduct” could be used to describe the overall conduct of DHS and the entire immigraton kakistocracy under the Trump regime.
Historical Footnote: I worked on Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir. 1976) (holding that government official’s “noncompliance with an affirmatively required procedure” constituted “severe” misconduct, and reversing Board of Immigration Appeal’s (“BIA”) order of deportation without remanding to agency for fact-finding or further proceedings) when I was a young attorney in the “Legacy INS” Office of General Counsel, then headed by the legendary immigration guru Sam Bernsen, in 1976.
The Corniel-Rodriguez case led directly to the eventual creation of the section 212(k) waiver for innocent misrepresentations on visa applications as part of a larger “INS Efficiency Bill” proposed by our Office and eventually enacted by Congress. Just shows that there was a time when those running the U.S. immigration system actually “did the right thing,” at least on some occasions. Perhaps not surprisingly, “doing the right thing” often also proved to be the “efficient thing” by promoting justice and avoiding unnecessary, and often losing, litigation.
Those days, of course, are long gone. The Government immigration system is now run by hacks lacking both expertise and values and who, with the assistance of the DOJ, intentionally clog the Federal Courts with litigation that likely would have been deemed frivolous, unethical, or at least not in the best interests of the public in earlier times.
It also highlights a severe deterioration in the performance of the Solicitor General’s Office in the DOJ. That office used to encourage all Federal agencies to develop administrative solutions in cases where, after review of the Article III Courts’ “adverse decisions,” the agency position below appeared to be indefensible in future litigation.
Now, the Solicitor General is actually a “cheerleader” for some racially motivated appeals against lower court decisions correctly favoring immigrants and asylum seekers. These appeals are often “supported” by very obvious pretexts for invidious actions by the regime. Given the lack of integrity, courage, and commitment to racial justice on the current Supremes’ majority, the “bad guys” sometimes improperly prevail.
But, it’s actually no more mystery to outgoing Solicitor General Noel Francisco what motivates Stephen Miller & co. than it is to the rest of us. It’s just that Francisco has consciously chosen to be “part of the problem,” something that should be remembered when the history of his disgraceful tenure in office is written.
It also shows that whenever we finally get a return to “Good Government,” a “cleanout” of EOIR and creation of an Article I Immigration Court needs to be the first thing on the list; but, a thorough re-examination of the role of every part of a corrupt DOJ that has failed to act independently and has furthered a program of overt racism, inequality, and injustice, and often argued disingenuously for “worst practices and worst interpretations,” is also an absolute necessity.
To state the obvious, the fairness and efficiency of our immigration system as well as our entire U.S. Justice system is actually in full throttle reverse under the Trump kakistocracy.
IMAGINE: How Would YOU Like To Be Judged in America’s Star Chambers?
By Paul Wickham Schmidt
Special to Courtside
June 14, 2020
Imagine yourself in a foreign land. You don’t speak the language, and you don’t know the rules. You’re arrested for a minor crime. You think you have a plausible defense. But, it could result in capital punishment. You are detained in squalid conditions. You’re hauled before a court. The bond is ludicrously high, set by the prosecutor and judge under rules they make up as they go along. You don’t have a lawyer because you can’t afford one. The “judge” is appointed by the chief prosecutor. The judge herself is a former prosecutor. The prosecutor makes the rules.
If you win, the prosecutor can appeal to a body stacked in his or her favor. If you lose, you can appeal to a tribunal hand-selected by the chief prosecutor because of their harshness and votes to convict more than 90% of the time. If, against those odds, you still win acquittal, the chief prosecutor can take over the case, rewrite the rules, and change the verdict to guilty. In the meantime, you’ll remain imprisoned in the “Gulag.”
Doesn’t sound like much fun does it? Am I describing something out of a third-world dictatorship or a Kafka novel?Absolutely not! This system operates right here in our United States of America, right now.
It’s chewing up and spitting out the lives of men, women, and even children who are supposed to receive due process and fundamental fairness and instead get the exact opposite. It’s enabled by Supreme Court Justices, Federal Judges, legislators, and public officials who won’t stand up for the legal and Constitutional rights of migrants and asylum seekers in the face of grotesque Executive abuses.
It’s called the U.S. Immigration Court. It exists in a “Constitution & humanity-free zone.” It’s run by Chief Prosecutor Billy Barr and his subordinates at the U.S. Department of Justice (“DOJ”). It’s not really a “court” at all, by any rational definition.
No, it’s a national disgrace and an intentional perversion of the constitutional right to due process, fundamental fairness, and human dignity. It’s also an unmitigated management disaster where DOJ-promoted“Aimless Docket Reshuffling” (“ADR”) has built an astounding 1.4 million case backlog with cases stretching out beyond the next Administration, even after doubling the number of “judges.” More judges means more backlog in this wacko system.
In the words of my friend and fellow panelist, Ira Kurzban, “this is not normal.” Yet complicit public officials, legislators, and life-tenured Federal Judges continue to “normalize” “America’s Star Chambers” and their biased, race-driven nativist attack on our Constitution and our humanity!
It needs to change. But, all three branches of our government currently lack the courage, leadership, and integrity to make “equal justice under law” a reality rather than just a slogan.
The three things I would do right up front are:
First, remove the Immigration Courts from the DOJ and create an independent, Article I U.S. Immigration Court as recommended by ABA President Judy Perry Martinez, the FBA, the NAIJ, AILA and almost all other true experts in the field.
Second, return the Immigration Courts to their previous noble mission of “through teamwork and innovation, be the world’s best tribunals guaranteeing fairness and due process for all.” End the disgraceful, unlawful, unconstitutional use of the Immigration Courts as a tool of DHS Enforcement, a deterrent, and a weaponized enforcer of a nativist, anti-human-rights agenda.
Third, replace the current highly-biased, one-sided judicial hiring system with a merit-based hiring process that properly weighs and credits demonstrated fairness, scholarship in immigration and human rights, experience representing asylum seekers and other migrants, and involves meaningful public input in judicial selections. Since 2000, the current skewed system has favored prosecutors and other “government insiders” by a ratio of more than 9-1, and has totally excluded private sector candidates from appellate judgeships at the Board of Immigration Appeals (“BIA”).
Our Constitution requires “equal justice for all.” To achieve it, we need public officials, legislators, Supreme Court Justices, and other Federal Judges who actually believe in it. That means real change in all three branches of our failing (and worse) Federal Government. Due Process Forever; Corrupt Officials, Feckless Legislators, and Complicit Courts, Never!
This is derived from my virtual panel presentation before the ABA Section on International Law on June 8, 2020.
Judge Amiena Khan and Judge Dorothy Harbeck (in their capacities as NAIJ Officers) write in the Federal Lawyer:
DOJ Tries to Silence the Voice of the Immigration Judges—Again!
The Second Attempt to Decertify the National Association of Immigration Judges
by Judge Amiena Khan and Judge Dorothy Harbeck
Immigration Law
Judge Amiena Khan is the executive vice president of the National Association of Immigration Judges (NAIJ) and serves as the co-chair of the NAIJ Vulnerable Populations Committee. Judge Khan was appointed by Attorney General Eric Holder in December 2010. She is seated at the New York Immigration Court and is a member of the New York State Bar. Judge Khan is the programs chair of the FBA Immigration Law Section and is also a member of the National Association of Women Judges.
Judge Dorothy Harbeck, an immigration judge in New York City, is the secretary/treasurer of the NAIJ. She is also an adjunct professor of law at Columbia and Rutgers. She
is a fellow of the Federal Bar Foundation, is on the Executive Board of the FBA Immigration Law Section, and is a member of the bar in New Jersey and New York.
The 2019 DOJ Petition for Decertification
In August 2019, the Department of Justice (DOJ), in a veiled attempt to silence the voice of the immigration judges (IJs), filed a petition with the Federal Labor Relations Authority (FLRA) to decertify the Nation- al Association of Immigration Judges (NAIJ).1 The NAIJ—origi
The 2019 DOJ Petition for Decertification
In August 2019, the Department of Justice (DOJ), in a veiled attempt to silence the voice of the immigration judges (IJs), filed a petition with the Federal Labor Relations Authority (FLRA) to decertify the Nation- al Association of Immigration Judges (NAIJ).1 The NAIJ—originally certified in 1979 as the recognized representative for collective bargaining for all U.S. IJs—is a voluntary association that represents and speaks for the interests of the nation’s 440 IJs. The NAIJ was formed with the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of the immigration courts. DOJ asserts that IJs should be reclassified as “management officials.” This would mean IJs could no longer union- ize, be part of a collective bargaining unit, or speak independently.
NAIJ serves as the only voice of the IJs who cannot speak out without prior express permission of DOJ’s Executive Office for Immigration Review (EOIR).2 NAIJ serves to afford transparency and accountability. The immigration courts are not independent courts under Article I or Article III of the Constitution. They are wholly contained within DOJ. Without a union,
IJs have no protection against the politicization of the process and their decisions. Without transparency,
the integrity of the process is in jeopardy. Without a union, the IJs cannot protest policy measures, such as the imposition of quotas and performance measures; the IJs cannot contest the numerous policies enacted by EOIR that encroach upon and undermine the inde- pendent decision-making ability of the IJs; and the IJs will not be able to rally against the effective speedup of the workforce, placing due process and fundamental fairness of the proceedings at risk.
How the Process Works
The burden to show that IJs are management officials is on the moving party (i.e., DOJ). The FLRA regional director (RD) has opened an investigation into the
NAIJ, seeking information about its responsibilities. DOJ can submit factual and legal arguments in support of its petition. The RD can then issue a decision or request a hearing to solicit more information. Either party can appeal the RD’s decision to the full FLRA board.
The Unsuccessful 2000 Attempt to Decertify
the Immigration Judges’ Union
This current effort follows a similar, and unsuccessful, strategy pursued by DOJ to decertify the immigration judges’ union approximately 20 years ago. In Septem- ber 2000, the FLRA’s RD rejected DOJ’s argument, and the full FLRA upheld the RD’s decision on appeal. In that prior decertification attempt,3 the FLRA reject- ed DOJ’s argument that IJs make policy through the issuance of decisions, noting that the trial court level IJs do not set precedent and that their rulings are often appealed and reviewed. The FLRA also said that the immigration court system was established specifically so that IJs do not maintain any management duties to enable them to focus on hearings.
The FLRA also ruled that there is a distinct differ- ence between the trial level IJs and the appellate level Board of Immigration Appeals (BIA) members.4 The description of the duties of the IJ were described in the 2000 decertification attempt:
The daily routine of an Immigration Judge involves hearing and deciding cases that arise from the operation of the INS.5 A court’s juris- diction to decide these cases is determined at the time a case is filed. After filing, the cases are randomly assigned by the court administrator to an individual Judge and placed on a Judge’s calendar on his or her master calendar day. At that time, the Judge hears presentations from the parties and their attorneys, identifies the is- sues, and advises individuals as to their right to
March/April 2020 • THE FEDERAL LAWYER • 9
representation. The Judge also sets time frames and briefing schedules, as well as the date for trial.6
The nature of the IJs’ decisions and their position in the hierarchy of binding the EOIR was also set forth:
During a trial, the parties are represented by counsel and the rules of evidence are observed. Thereafter, in arriving at their decisions, Immigration Judges are required to apply immigra- tion statutes, applicable regulations, published decisions of the Board of Immigration Appeals and federal appellate courts, and other foreign and state laws. After the trial, the Judge issues his or her decision, almost always orally, and advises the parties of their appeal rights. Oral decisions are not tran- scribed unless they are appealed; are not published; and are final and binding only with respect to the parties to the case. With limited exception, decisions of the Immigration Judges may be appealed to the Board of Immigration Appeals and review of their decisions is de novo. Certain cases may also be appealed to the appropriate U.S. circuit court.7
Citing its precedential case on the managerial status of BIA members (hereinafter “the BIA Management Case”),8 the FLRA specifically stated that the BIA appellate judges were management officials within the meaning of section 7103(a)(11) of the statute and, therefore, could not be included in the existing bargaining unit. In particular, it concluded that “the incumbent Board Member directly influences activity policy through his participation in the interpreta- tion of immigration laws and the issuance of decisions and, thereby, meets the definition of a management official set forth in section 7103(a)(11) of the Statute.”9
In the 2000 decertification attempt, the RD applied the BIA Management Case and concluded that “unlike decisions of the Board of Immigration Appeals, the decisions of Immigration Judges are
not published, do not constitute precedent, are binding only on the parties to the proceedings, and are subject to de novo review.”10 The RD accordingly concluded that the decisions of the judges do not in- fluence and determine the Agency’s immigration policy, in contrast to the decisions of the BIA.
The FLRA concurred that the RD’s definition of a management official is defined as “an individual employed by an agency in a posi- tion the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the agency.”11
Critically, the full FLRA also found that management officials are individuals who: “(1) create, establish or prescribe general princi- ples, plans or courses of action for an agency; (2) decide upon or settle upon general principles, plans or courses of action for an agen- cy; or (3) bring about or obtain a result as to the adoption of general principles, plans or courses of action for an agency.”12
The FLRA distinguished the trial court IJs from the BIA appellate judges by specifically holding that IJs do not “make policy through the issuance of their decisions … that in arriving at their decisions, Immigration Judges are required to apply immigration laws and reg- ulations, that their decisions are not published and do not constitute precedent.” Finally, the RD observed that the decisions are binding only on the parties to the case, are “routinely” appealed, and are subject to de novo review.13 There is no difference in this now.
The FLRA specifically agreed with the RD’s rejection of the EOIR’s claims that “the sheer volume of decisions issued by the [immigration] Judges and the finality of their decisions, unless they are appealed,” affect the EOIR’s policy. This is because “no matter the volume of decisions issued, or number of appeals filed, the fact remains that when an Immigration Judge issues a decision [,] he or she is applying and following established Agency law and policy.”14 Again, there is no difference in this now.
While IJs have some authority to control practice in their own courtrooms, they have no authority to set overall policy as to how the courts as a whole will operate. Nor, critically, do they have the authority to direct or commit the EOIR to any policy or course of action. The IJs are highly trained professionals with the extremely important job of adjudicating cases.15 This organizational structure and supervisory delegation was established specifically so that the IJs are unencumbered by any supervisory and management obligations and are free to concentrate on hearings.16 Aspirationally, this is still the position of the IJs.
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Read the rest of the article at the link. Many thanks to Judge Khan and Judge Harbeck for courageously speaking out and informing us in such a well-documented and scholarly manner.
It’s disgraceful that political leaders who are supposed to be committed to our Constitution and the rule of law instead misuse government funds and abuse their authority to cover up their wrongdoing and mismanagement. In a functional government, Barr and his toadies would be facing impeachment or referral for criminal investigation from Congress for their abuses of authority and attacks on our Constitution. Most certainly, a competent Congress would long ago have removed EOIR from the clutches of the DOJ politicos and placed it where it belongs: as an independent court system under either Article I or Article III.
But early one morning, she kissed her sleeping son goodbye. She had spent the night watching him in his bed. It was almost his 10th birthday.
“Fue el peor momento de mi vida,” Bárbara said. It was the worst moment of my life.
It had been nearly a year since Bárbara had been left for dead outside her clothing store, a victim of the Nicaraguan government’s bloody campaign to silence pro-democracy protests that rose up in 2018.
She knew she had to flee, but she didn’t think she could protect her son on the notorious migrant trail. She wasn’t willing to risk him.
So the 29-year-old entrepreneur escaped north alone, putting herself at the mercy of the U.S. asylum system — a system meant to protect the world’s most vulnerable.
RETURNED: PART I
The first in an occasional series in which the Union-Tribune explores the asylum system through the eyes of people who experience it firsthand, with drastically different outcomes.
The San Diego Union-Tribune is not fully identifying Bárbara or many of the witnesses interviewed in Nicaragua because of the danger that the government might retaliate against them or their families.
Bárbara is in Tijuana, one of tens of thousands of people waiting for a chance to argue for protection in the United States, part of a changing wave of migration that the Trump administration has labeled a crisis.
She exists in a constant state of uncertainty, and she realizes now just how much she underestimated the challenges that still lie ahead.
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For Kate’s full article including the “original formatting” and all of the great pictures and graphics accompanying it, click on the above link that will take you to the original article on the San Diego Union-Tribune website!
Thanks, Kate, for so beautifully capturing the “heart and soul” of the refugee experience and why the Trump regime’s intentionally cruel, illegal, immoral, and dehumanizing policies are undermining our humanity as a nation and everything we should stand for. These are human lives at stake, not “numbers,” “beds,” or “apprehensions.” Success is measured in lives saved, and fair treatment of all, not “numbers turned back” or how we can “discourage” or “deter” others from seeking refuge. Our legal system should be fair and impartial, not a “weaponized tool” for nativist immigration enforcement policies. Indeed, it supposedly is there too protect all of us against such political overreach and abuses.
Interestingly, there was a time in the past when the GOP and the Reagan Administration went out of its way to help and give refuge to those Nicaraguans fleeing the Sandinistas and Daniel Ortega. The Nicaraguan and Central American Relief Act (“NACARA”), one of the best, most effective, and most efficient pieces of immigration legislation ever passed, was a result of bipartisan support for providing permanent relief to Nicaraguans, El Salvadorans, and Guatemalans fleeing the mess in Central American that our Government played a significant role in creating. Some off those fleeing Cuba and Eastern Europe also were covered. Now, under the influence of Trump, neo-fascist Stephen Miller, and the rest of the White Nationalist nativist gang, this GOP-led regime simply turns its back on vulnerable refugees like Barbara, the human carnage resulting from Ortega’s misrule of Nicaragua.
Perhaps in the future, Kate will put it all together in a book. Hope so!
fl-undocumented-minors 2 – Judge Denise Slavin, executive vice president of the National Association of Immigration Judges in an immigration courtrrom in Miami. Mike Stocker, Sun Sentinel
Immigration Judge Denise Slavin recently retired after 24 years on the bench. The Asylumist caught up with her to ask about her career, her role as a leader in the National Association of Immigration Judges, and the state of affairs at the Executive Office for Immigration Review (“EOIR”).
Asylumist: Tell me about how you got to be an Immigration Judge (“IJ”). What did you like and dislike about the job?
Judge Slavin: Before I became a Judge, I had some very different turns in my career. Early on, I worked for the Maryland Commission for Human Relations, where I prosecuted state civil rights complaints. I admired the hearing examiners, and I felt that I wanted to do that type of work. I knew [Immigration Judge] Larry Burman when I was in college, and he suggested I apply to the INS to become a trial attorney. I worked as a trial attorney from 1987 to 1990.
I then worked for the Department of Justice, Office of Special Investigations. This was maybe my favorite job. We investigated Nazi war criminals, and I worked on many interesting cases, including the case of John Demjanjuk. During my five years at the Office of Special Investigations, Judge Creppy became the Chief Immigration Judge. Since I knew him from my work in employer sanctions at INS, I called to congratulate him, and he suggested that I apply for an Immigration Judge position. I applied and got the job.
Judge Denise Slavin
I started work as an IJ in 1995. My first assignment was in Miami doing non-detained cases. I loved it there–the city was exotic and multicultural. It almost felt like I wasn’t living in the United States. It was also a good court for me to start my career on the bench. I hadn’t practiced in Miami as a Trial Attorney, so there were no expectations of me. Also, it is a large court with many judges to learn from.
I did non-detained cases for 10 years in Miami, but the work started to become a bit tedious. An opportunity came up and I transferred to the detained docket at Krome Detention Center. I loved working on those cases. The legal issues were cutting edge. I remember one three-month period, where our cases resulted in three published BIA decisions. For detained cases, the law develops quickly, and it was very challenging to keep up to speed.
I would have been happy to remain in Miami, but family issues brought me to Baltimore. The DHS and private-bar attorneys in Baltimore are very professional, and my colleagues were excellent mentors. All this helped make my time there very enjoyable.
Asylumist: What could DHS attorneys and the private bar do better in terms of presenting their cases? Are there any common problems that you observed as an IJ?
Judge Slavin: There are a lot of good DHS attorneys in Baltimore. DHS attorneys get a lot of credit with judges if they narrow the issues and stipulate to portions of the case. For example, it is so tedious when DHS inquires about every step the alien takes from her country to the United States. If there is no issue with the journey to the U.S., it is not worth going into all this, and it uses up precious court time. When DHS attorneys ask such questions, it would sometimes be frustrating for me as a Judge, since I do not know what they have in their file and what they might be getting at. But if there is nothing there, it is very frustrating to sit through. DHS attorneys should only explore such avenues of questioning if they think there is an issue there. When they focus on real issues, and don’t waste time sidetracking, they gain credibility with the IJs.
As for the private bar, I appreciate pre-hearing briefs on particular social groups. Also, explaining whether the applicant is claiming past persecution and the basis for that, whether there is a time bar, and nexus. Of course, this can sometimes be straightforward, but other times, it is a bigger issue and a brief is more important.
I encourage both parties to work together to reach agreement on issues whenever possible. Court time is so valuable, Judges want to spend it on the disputed issues.
Asylumist: What about lawyers who are bad actors, and who violate the rules?
Judge Slavin: IJs are prohibited from reporting attorneys directly to bar associations. Instead, we report the offending lawyer to internal EOIR bar counsel, who then makes a decision about whether or not to go to the state bar. Personally, I have been hesitant to report private attorneys because I think the system is unfair–it allows you to report a private attorney, but not a DHS attorney. Although this is unfair (and it is another reason why Immigration Courts should be Article I courts), there were times when I had to report blatant cases of attorney misconduct.
Asylumist: Looking at your TRAC statistics, your denial rates are much higher for detained cases. Some of this probably relates to criminal convictions and the one-year asylum bar, but can you talk about the difference in grant rates for detained vs. non-detained cases? Do IJs view detained cases differently? Perhaps in terms of the REAL ID Act’s evidentiary requirements (since it is more difficult to get evidence if you are detained)?
Judge Slavin: There were two detention centers in the Miami area—Krome and Broward Transitional Center–and they produced two different types of cases. At Krome, detainees mostly had convictions and had been in the U.S. for years. It is very difficult to win asylum if you have been here for that long. It’s hard to show that anyone would remember you, let alone persecute you, if you return to your country after a decade or more. BTC held newly arriving individuals who were claiming asylum. They generally had more viable claims.
As a Judge, I did account for people being detained. I didn’t want to deprive someone of the right to get a piece of evidence, but I didn’t want to keep the person detained for an extra three months at government expense to get the document. If there is no overriding reason to require corroboration, I would not require it for detained applicants. In many cases, corroboration that you would normally expect, you cannot get in the 30-day time-frame of a detained case. I have continued cases were there was needed corroboration, but I generally tried to avoid that.
Also, in adjudicating detained cases, it is important to consider the spirit of the asylum law, which is generous. But for people with convictions, we have to balance the need to protect an individual from persecution against the competing interest to protect the United States from someone who has committed crimes here. In a non-detained asylum case, the potential asylee should be given the benefit of the doubt, but–for example–in a detained case where the applicant has multiple criminal convictions, the person may not receive such a benefit of the doubt, and a Judge would rather err, if at all, on the side of caution and protect the community.
Asylumist: Again, looking at the TRAC statistics, your grant rates tend to be higher than other IJs in your local court. What do you think accounts for that? How do different IJs evaluate cases so differently?
Judge Slavin: In asylum cases, we don’t have a computer to input information and come up with an answer. The immigration bench does and should reflect the diverse political backgrounds of people in our country. I am more on the liberal side, but I will defend colleagues who are more conservative. We don’t want only middle-of-the road judges; we want the immigration bench to reflect our society.
As far as the TRAC numbers, it’s true that people who are represented by attorneys are generally more successful in court. However, if you have a bad case, most decent lawyers won’t take it. Such cases would be denied even with a lawyer. Since people with weak cases have a harder time finding lawyers, the disparity between represented and unrepresented individuals is not as dramatic as the TRAC statistics suggest.
Asylumist: One idea for reducing disparities between IJs is to hold training sessions where “easy” and “hard” judges evaluate a case and discuss how they reach different conclusions. Do you think this is something that would be helpful? What type of training do IJs need?
Judge Slavin: We have not had this type of training, but it would be interesting. EOIR has not been consistent about training. In-person trainings come and go. They do hold video training sessions, but these are horrible. Judges would get some time off the bench to watch the videos, but due to the pressing backlog, we would usually do other work while we were watching.
Also, looking at talking heads is not a good way to learn new information. In addition, the social opportunities to talk to other Judges with different backgrounds and different judicial philosophies that occur only during in-person trainings are invaluable.
The National Association of Immigration Judges (“NAIJ”) has tried to get EOIR to hold different types of trainings, such as regional conferences–where, for example, all the IJs in the Eleventh Circuit would get together–but unfortunately, EOIR has not gone for that approach.
In my experience, the more interactive trainings are more helpful. I’ve learned the most from talking with other IJs and from in-person trainings. This was one of the advantages of serving on a big court like Miami–the opportunity to interact with many other judges and see how they handled their dockets.
Another idea is to give IJs “sabbatical time” off the bench, to observe the cases of other judges. Seeing and talking to other judges about how they handle different issues is very helpful.
Asylumist: You mentioned the NAIJ, the National Association of Immigration Judges, which is basically a union for Immigration Judges. How did you get involved with the NAIJ? What did you do as a member and leader of that organization?
Judge Slavin: I had two mentors–Judge Bruce Solow and Judge John Gossart–who were both past presidents of NAIJ. They encouraged me to get involved with the organization. I ran for Vice President with Judge Dana Leigh Marks, who ran for President. I call Judge Marks my sister from another mother. I love her to death. Prior to becoming VP, I had done some secretarial-type duties for the NAIJ, like taking the minutes. I originally joined NAIJ to help improve the Immigration Court system.
As they say, bad management makes for good unions. When management is good, the number of NAIJ members falls, and when management is bad, more judges join. The situation these days is not good. In particular, the politicization of the Immigration Courts has been outrageous. This has been going on in several administrations, but has reached a peak in the current Administration.
Another issue is that we have judges doing more and more with less and less. It’s crazy. When I was in Miami and we had a thousand cases per judge, we were hysterical. When I left the court in Baltimore, I had 5,000 cases! Despite this, management at EOIR thinks that judges are not producing. The idea of this is absurd. Management simply does not recognize what we are doing, and this is bad for morale.
The previous Director of EOIR, Juan Osuna, appreciated the court and the judges, even if there were some political issues. When you have someone who does not appreciate what you are doing, and who gives you production quotas, it creates a very difficult environment.
These days, I do worry, especially for the newer judges. If you have to focus on getting cases done quickly, it will cause other problems–some cases that might have been granted will be denied if the applicant does not have time to gather evidence. Also, while many decisions can be made from the bench, for others, the Judge needs time to think things through. For me, I had to sleep on some of my cases–they were close calls. I needed time to decide how best to be true to the facts and the law. I also had to think about how my decision might affect future cases—most IJs want to be consistent, at least with their own prior decisions. To make proper decisions often takes time, and if judges do not have time to make good decisions, there will be appeals and reversals. For these reasons, production quotas will be counter-productive in the long run.
Other problems with the court system include the aimless docket reshuffling, which started with the Obama administration. IJs should determine on their own how cases are set on their dockets. Cases should be set when they are ready to go forward, not based on the priorities of DHS.
The main issue here is that DHS [the prosecutor] is very much controlling EOIR [the court]. The ex-parte communication that occurs on the macro level is unheard of–the priorities of DHS are communicated through backdoor channels to EOIR, and then EOIR changes its priorities. Have you ever heard of a state prosecutor’s office telling a state court which cases to set first? This re-shuffling affects IJs’ dockets–we would receive lists of case numbers that we had to move to the front of the queue. We had no control over which cases had to be moved. Instead, cases were advance based on DHS priorities.
Maybe one silver lining of the politicization under the current Administration is that it has helped people realize the need for an Article I court.
Asylumist: Bad management makes for good unions. What is your opinion of the leadership at EOIR today? What more could they do to support judges?
Judge Slavin: It’s hard to think about EOIR in this political environment. Former Director Juan Osuna was wonderful. He spent a lot of time minimizing damage to the court by the Department of Justice and Congress; for example, by explaining how judicial independence and due process prevented placing artificial constraints on the number or length of continuances granted. These concepts seem to elude the current leadership of EOIR, and the administration has moved to strip us of the tools we need (such as administrative closure) to control our dockets.
The court has many needs that are not being addressed. We need more and better training. We need larger courtrooms–it drives me crazy that we cannot get courtrooms the size we need; with children, families, and lawyers–we need more space.
Also, we need more judges. I retired, and a lot of people coming up behind me are getting ready to retire. It is hard to keep up with the numbers. One idea is to implement phased retirement for IJs, so judges could work two or three days per week. This was approved four years ago, but not implemented. I do not know why.
Judge Marks [former President of the NAIJ] and I talked to EOIR about hiring retired IJs back on a part-time basis. We asked about this 10 years ago, and they are finally getting around to it. That will help, and hopefully, EOIR can step up that program.
Recent changes that affected judges directly, such as limiting administrative closure, are not good for case management.
The NAIJ leadership and I have talked to EOIR Director James McHenry about some of this. He is not getting it. He is very young, and he thinks he has a new approach, but he does not know the history or background of EOIR, and he does not seem to grasp what the agency needs to do. He also does not understand how overworked judges have been for such a long time, and seems to think the problems with the court are based on lack of commitment and work ethic of the judges. Nothing could be farther from the truth.
Asylumist: How would it help if Immigration Courts became Article I courts?
Judge Slavin: Article I courts would still be part of the Executive Branch. Immigration is a plenary power, but when it comes to case-by-case adjudication, that issue disappears. The bottom line is that people are entitled to due process, and that requires judicial independence. I don’t think you can have due process without judicial independence. This is one of the hallmarks of the America legal system. Even arriving aliens are entitled to due process. If we change that, we are starting to give up who we are. If we are trying to save the U.S. from terrorists by eliminating due process for all, what are we saving? It is taking away an important tenant of our democratic system.
There is a plan to transition the Immigration Courts to Article I courts. The Bankruptcy Court did it. The plan allows for grandfathering of sitting IJs for a limited period. The sooner this is done, the easier it will be. And in fact, it must be done.
If we had Article I courts, we would eliminate aimless docket reshuffling and political priorities. Judges would control their own dockets, and this would lead to better morale and better efficiency.
Asylumist: Thank you for talking to me today.
Judge Slavin: Thank you
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We’ll said, Denise, my long-time friend and colleague!
As long as there is a DOJ and EOIR is part of it, there will be “Aimless Docket Reshuffling” and “Extreme Mission Failure” meaning that “guaranteeing fairness and Due Process for all” will be unachievable.
NPR’s Michel Martin speaks with Jeffrey Chase, a former immigration judge, about how President Trump’s new proposals will affect immigration courts.
MICHEL MARTIN, HOST:
This is ALL THINGS CONSIDERED from NPR News. I’m Michel Martin. Immigration, both legal and unauthorized, has been a central issue for Donald Trump since he announced his candidacy for president. Last week, he announced his plan for an overhaul to the current system, which emphasizes family ties and employment, moving to a system that would prioritize certain education and employment qualifications.
Overshadowing all of this, however, is the huge backlog of immigration cases already in the system waiting to go before the courts. More than 800,000 cases are waiting to be resolved, according to The New York Times. We wanted to get a sense of how the immigration courts are functioning now and how the new system could affect the courts, so we’ve called Jeffrey Chase. He is a retired immigration judge in New York. He worked as a staff attorney at the Board of Immigration Appeals. We actually caught up with him at the airport on his way back from a conference on national immigration law, which was held in Austin, Texas.
Mr. Chase, welcome. Thank you so much for joining us.
JEFFREY CHASE: Thank you. Yeah, it seems appropriate to be at JFK Airport talking about immigration. So…
MARTIN: It does.
CHASE: It worked out.
MARTIN: So, first of all, just – as you said, you’re just coming back from this conference. Could you just give me – just overall, what are you hearing from your colleagues, particularly your former colleagues in the courts, about how this system is functioning now? How do they experience this backlog? Is it this unending flow of cases that they can’t do anything with? Or – how are they experiencing this?
CHASE: Yeah. You know, the American Bar Association just put out a report on the immigration courts recently in which they said it’s a dysfunctional system on the verge of collapse. And that was, basically, agreed to by everybody at the conference, including sitting immigration judges. What the judges have said is that the new judges being hired are pretty much being told in their training that they’re not really judges, that instead, they should view themselves as loyal employees of the attorney general and of the executive branch of government. They are basically being trained to deny cases not to fairly consider them.
So, you know, the immigration court itself has to be neutral, has to be transparent and has to be immune from political pressures. And unfortunately, the immigration courts have always been housed within the Department of Justice, which is a prosecutorial agency that does not have transparency and which is certainly not immune from political pressures. So there’s always been this tension there, and I think they’ve really come to a head under this administration.
MARTIN: Well, the president has said that his new proposal should improve the process by screening out meritless claims. And I think his argument is that because there will be a clearly defined point system for deciding who is eligible and who is not, that this should deter this kind of flood of cases. What is your response to that?
CHASE: Yeah, I don’t think it addresses the court system at all because he’s talking – his proposal addresses, you know, the system where people overseas apply for visas and then come here when their green cards are ready. And those are generally not the cases in the courts. The courts right now are flooded with people applying for political asylum because they’re fleeing violence in Central America.
MARTIN: Well, can I just interrupt here? So you’re just saying – I guess on this specific question, though, you’re saying that this proposal to move to a system based on awarding points for certain qualifications would not address the backlog because that is not where applicants come in. Applicants who are a part of this backlog are not affected by that. Is that what you’re saying?
CHASE: Yes. Applying for asylum is completely outside of that whole point system and visa system. And that’s saying that anyone who appears at the border or at an airport and says, I’m unable to return; I’m in fear for my life, goes on a whole different track.
MARTIN: And so, finally, what would affect this backlog? What would be the most – in your view, based on your experience – the most effective way to address this backlog – this enormous backlog of cases?
CHASE: I think, to begin with, any high-volume court system – criminal courts, you know, outside of the immigration system – can only survive when you have – the two parties are able to conference cases, are able to reach pre-case settlements, are able to reach agreements on things. If you could imagine in the criminal court system, if every jaywalking case had to go through a – you know, a full jury trial and then, you know, get appealed all the way up as high as it could go, that system would be in danger of collapse as well. So I think you have to return to a system where you allow the two sides to negotiate things.
And you also have to give the judges – let them be judges. Give them the tools they need to be judges and the independence they need to be judges. And lastly, you have to prioritize the cases.
MARTIN: Before we let you go, I assume that there were different political perspectives at this conference, given that people come from all different sectors of that – of the bar. And I just wondered – and I assume that there are some there who favor more restrictionist methods and some who don’t. I was wondering, overall, was there a mood at this conference?
CHASE: I think the overall mood, even amongst the restrictionist ones – the idea that, you know, look; judges have to be allowed to be judges and have to be given the respect and the tools they need to do their job is one that’s even held by the more restrictionist ones. And although the government people aren’t allowed to speak publicly under this administration, I think privately, they’re very happy about a lot of the advocates fighting these things and bringing – making these issues more public.
MARTIN: Jeffrey Chase is a former immigration judge. He’s returned to private practice. And we actually caught up with him on his way back from an immigration law conference in Austin, Texas. We actually caught up with him at the airport in New York.
Jeffrey Chase, thank you so much for talking to us.
CHASE: Thank you so much for having me on the show.
*********************************
Go to the link for the full audio from NPR.
I agree with my friend Jeffrey that the sense at the FBA Immigration Conference in Austin, TX was that EOIR had hit “rock bottom” from all angles: ethics, bias, and competence, but amazingly was continuing in “free fall” even after hitting that bottom. It’s difficult to convey just how completely FUBAR this once promising “court system” has become after nearly two decades of politicized mismanagement from the DOJ culminating in the current Administration’s “malicious incompetence” and EOIR’s aggressive disdain for its former “Due Process mission.”
JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
By
Paul Wickham Schmidt
U.S. Immigration Judge (Retired)
Federal Bar Association Immigration Conference
Austin, Texas
May 17, 2019
Hi, I’m Paul Schmidt, moderator of this panel. So, I have something useful to do while my wonderful colleagues do all the “heavy lifting,” please submit all questions to me in writing. And remember, free beer for everyone at the Bullock Texas State Museum after this panel!
Welcome to the front lines of the battle for our legal system, and ultimately for the future of our constitutional republic. Because, make no mistake, once this Administration, its nativist supporters, and enablers succeed in eradicating the rights and humanity of Central American asylum seekers, all their other “enemies” — Hispanics, gays, African Americans, the poor, women, liberals, lawyers, journalists, civil servants, Democrats — will be in line for “Dred Scottification” — becoming “non-persons” under our Constitution. If you don’t know what the “Insurrection Act” is or “Operation Wetback” was, you should “tune in” to today’s edition of my blog immigrationcourtside.com and take a look into the future of America under our current leaders’ dark and disgraceful vision.
Before I introduce the “Dream Team” sitting to my right, a bit of asylum history.
In 1987, the Supreme Court established in INS v. Cardoza-Fonseca that a well founded fear of persecution for asylum was to be interpreted generously in favor of asylum applicants. So generously, in fact, that someone with only a 10% chance of persecution qualifies.
Shortly thereafter, the BIA followed suit with Matter of Mogharrabi, holding that asylum should be granted even in cases where persecution was significantly less than probable. To illustrate, the BIA granted asylum to an Iranian who suffered threats at the Iranian Interests Section in Washington, DC. Imagine what would happen to a similar case under today’s regime!
In the 1990s, the “Legacy INS” enacted regulations establishing that those who had suffered “past persecution” would be presumed to have a well-founded fear of future persecution, unless the Government could show materially changed circumstances or a reasonably available internal relocation alternative that would eliminate that well-founded fear. In my experience as a judge, that was a burden that the Government seldom could meet.
But the regulations went further and said that even where the presumption of a well founded fear had been rebutted, asylum could still be granted because of “egregious past persecution” or “other serious harm.”
In 1996, the BIA decided the landmark case of Matter of Kasinga, recognizing that abuses directed at women by a male dominated society, such as “female genital mutilation’ (“FGM”), could be a basis for granting asylum based on a “particular social group.” Some of us, including my good friend and colleague Judge Lory Rosenberg, staked our careers on extending that much-need protection to women who had suffered domestic violence. Although it took an unnecessarily long time, that protection eventually was realized in the 2014 precedent Matter of A-R-C-G-, long after our “forced departure” from the BIA.
And, as might be expected, over the years the asylum grant rate in Immigration Court rose steadily, from a measly 11% in the early 1980s, when EOIR was created, to 56% in 2012, in an apparent long overdue fulfillment of the generous legal promise of Cardoza-Fonseca. Added to those receiving withholding of removal and/or relief under the Convention Against Torture (“CAT”), approximately two-thirds of asylum applicants were receiving well-deserved, often life-saving legal protection in Immigration Court.
Indeed, by that time, asylum grant rates in some of the more due-process oriented courts with asylum expertise like New York and Arlington exceeded 70%, and could have been models for the future. In other words, after a quarter of a century of struggles, the generous promise of Cardoza-Fonseca was finally on the way to being fulfilled. Similarly, the vision of the Immigration Courts as “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all” was at least coming into focus, even if not a reality in some Immigration Courts that continued to treat asylum applicants with hostility.
And, that doesn’t count those offered prosecutorial discretion or “PD” by the DHS counsel. Sometimes, this was a humanitarian act to save those who were in danger if returned but didn’t squarely fit the somewhat convoluted “refugee” definition as interpreted by the BIA. Other times, it appeared to be a strategic move by DHS to head off possible precedents granting asylum in “close cases” or in “emerging circumstances.”
In 2014, there was a so-called “surge” in asylum applicants, mostly scared women, children, and families from the Northern Triangle of Central America seeking protection from worsening conditions involving gangs, cartels, and corrupt governments.There was a well-established record of femicide and other widespread and largely unmitigated gender-based violence directed against women and gays, sometimes by the Northern Triangle governments and their agents, other times by gangs and cartels operating with the knowledge and acquiescence of the governments concerned.
Also, given the breakdown of governmental authority and massive corruption, gangs and cartels assumed quasi-governmental status, controlling territories, negotiating “treaties,” exacting involuntary “taxes,” and severely punishing those who publicly opposed their political policies by refusing to join, declining to pay, or attempting to report them to authorities. Indeed, MS-13 eventually became the largest employer in El Salvador. Sometimes, whole family groups, occupational groups, or villages were targeted for their public acts of resistance.
Not surprisingly in this context, the vast majority of those who arrived during the so-called “surge” passed “credible fear” screening by the DHS and were referred to the Immigration Courts, or in the case of “unaccompanied minors,” to the Asylum Offices, to pursue their asylum claims.
The practical legal solution to this humanitarian flow was obvious — help folks find lawyers to assist in documenting and presenting their cases, screen out the non-meritorious claims and those who had prior gang or criminal associations, and grant the rest asylum. Even those not qualifying for asylum because of the arcane “nexus” requirements appeared to fit squarely within the CAT protection based on likelihood of torture with government acquiescence upon return to the Northern Triangle. Some decent BIA precedents, a robust refugee program in the Northern Triangle, along with continued efforts to improve the conditions there would have “sealed the deal.” In other words, the Obama Administration had all of the legal tools necessary to deal effectively and humanely with the misnamed “surge” as what it really was — a humanitarian situation and an opportunity for our country to show human rights leadership!
But, then things took a strange and ominous turn. After years of setting records for deportations and removals, and being disingenuously called “soft on enforcement” by the GOP, the Obama Administration began believing the GOP myths that they were wimps. They panicked! Their collective “manhood” depended on showing that they could quickly return refugees to the Northern Triangle to “deter” others from coming. Thus began the “weaponization” of our Immigration Court system that has continued unabated until today.
They began imprisoning families and children in horrible conditions and establishing so-called “courts” in those often for profit prisons in obscure locations where attorneys generally were not readily available. They absurdly claimed that everyone should be held without bond because as a group they were a “national security risk.” They argued in favor of indefinite detention without bond and making children and toddlers “represent themselves” in Immigration Court.
The Attorney General also sent strong messages to EOIR that hurrying folks through the system by “prioritizing” them, denying their claims, “stuffing” their appeals, and returning them to the Northern Triangle with a mere veneer of due process was an essential part of the Administration’s “get tough” enforcement program. EOIR was there to “send a message” to those who might be considering fleeing for their lives — don’t come, you won’t get in, no matter how strong your claim might be.
They took judges off of their established dockets and sent them to the Southern Border to expeditiously remove folks before they could get legal help. They insisted on jamming unprepared cases of recently arrived juveniles and “adults with children” in front of previously docketed cases, thereby generating total chaos and huge backlogs through what is known as “aimless docket reshuffling” (“ADR”).
Hurry up scheduling and ADR also resulted in more “in absentia” orders because of carelessly prepared and often inadequate or wrongly addressed “notices” sent out by overwhelmed DHS and EOIR court staff. Sometimes DHS could remove those with in absentia orders before they got a chance to reopen their cases. Other times, folks didn’t even realize a removal order had been entered until they were on their way back.
They empowered judges with unusually high asylum denial rates. By a ratio of nine to one they hired new judges from prosecutorial backgrounds, rather than from the large body of qualified candidates with experience in representing asylum applicants who might actually have been capable of working within the system to fairly and efficiently recognize meritorious cases, promote fair access to pro bono counsel, and insure that doubtful cases or those needing more attention did not get “lost” in the artificial backlogs being created in an absurdly mismanaged system. In other words, due process took a back seat to “expedience” and fulfilling inappropriate Administration enforcement goals.
Asylum grant rates began to drop, even as conditions on the ground for refugees worldwide continued to deteriorate. Predictably, however, detention, denial, inhumane treatment, harsh rhetoric, and unfair removals failed to stop refugees from fleeing the Northern Triangle.
But, just when many of us thought things couldn’t get worse, they did. The Trump Administration arrived on the scene. They put lifelong White Nationalist xenophobe nativists Jeff Sessions and Stephen Miller in charge of eradicating the asylum process. Sessions decided that even artificially suppressed asylum grant rates weren’t providing enough deterrence; asylum seekers were still winning too many cases. So he did away with A-R-C-G- and made it harder for Immigration Judges to control their dockets.
He tried to blame asylum seekers and their largely pro bono attorneys, whom he called “dirty lawyers,” for having created a population of 11 million undocumented individuals in the U.S. He promoted bogus claims and false narratives about immigrants and crime. Perhaps most disgustingly, he was the “mastermind” behind the policy of “child separation” which inflicted lifetime damage upon the most vulnerable and has resulted in some children still not being reunited with their families.
He urged “judges” to summarily deny asylum claims of women based on domestic violence or because of fear of persecution by gangs. He blamed the judges for the backlogs he was dramatically increasing with more ADR and told them to meet new quotas for churning out final orders or be fired. He made it clear that denials of asylum, not grants, were to be the “new norm” for final orders.
His sycophantic successor, Bill Barr, an immigration hard-liner, immediately picked up the thread by eliminating bond for most individuals who had passed credible fear. Under Barr, the EOIR has boldly and publicly abandoned any semblance of due process, fairness, or unbiased decision making in favor of becoming an Administration anti-asylum propaganda factory. Just last week they put out a “bogus fact sheet” of lies about the asylum process and the dedicated lawyers trying to help asylum seekers. The gist was that the public should believe that almost all asylum seekers from the Northern Triangle are mala fide and that getting them attorneys and explaining their rights are a waste of time and money.
In the meantime, the Administration has refused to promptly process asylum applicants at ports of entry; made those who have passed credible fear “wait in Mexico” in dangerous and sometimes life-threatening conditions; unsuccessfully tried to suspend the law allowing those who enter the U.S. between ports of entry to apply for asylum; expanded the “New American Gulag” with tent cities and more inhumane prisons — dehumanizingly referred to as “beds” as if they existed without reference to those humans confined to them; illegally reprogrammed money that could have gone for additional humanitarian assistance to a stupid and unnecessary “wall;” and threatened to “dump” asylum seekers to “punish” so-called “sanctuary cities.” Perhaps most outrageously, in violation of clear statutory mandates, they have replaced trained Asylum Officers in the “credible fear” process with totally unqualified Border Patrol Agents whose job is to make the system “adversarial” and to insure that fewer individuals pass “credible fear.”
The Administration says the fact that the “credible fear” pass rate is much higher than the asylum grant rate is evidence that the system is being “gamed.” That’s nativist BS! The, reality is just the opposite: that so many of those who pass credible fear are eventually rejected by Immigration Judges shows that something is fundamentally wrong with the Immigration Court system. Under pressure to produce and with too many biased, untrained, and otherwise unqualified “judges,” many claims that should be granted are being wrongfully denied.
Today, the Immigration Courts have become an openly hostile environment for asylum seekers and their representatives. Sadly, the Article III Courts aren’t much better, having largely “swallowed the whistle” on a system that every day blatantly mocks due process, the rule of law, and fair and unbiased treatment of asylum seekers. Many Article IIIs continue to “defer” to decisions produced not by “expert tribunals,” but by a fraudulent court system that has replaced due process with expediency and enforcement.
But, all is not lost. Even in this toxic environment, there are pockets of judges at both the administrative and Article III level who still care about their oaths of office and are continuing to grant asylum to battered women and other refugees from the Northern Triangle. Indeed, I have been told that more than 60 gender-based cases from Northern Triangle countries have been granted by Immigration Judges across the country even after Sessions’s blatant attempt to snuff out protection for battered women in Matter of A-B-. Along with dependent family members, that means hundreds of human lives of refugees saved, even in the current age.
Also significantly, by continuing to insist that asylum seekers from the Northern Triangle be treated fairly in accordance with due process and the applicable laws, we are making a record of the current legal and constitutional travesty for future generations. We are building a case for an independent Article I Immigration Court, for resisting nativist calls for further legislative restrictions on the rights of asylum seekers, and for eventually holding the modern day “Jim Crows” who have abused the rule of law and human values, at all levels of our system, accountable, before the “court of history” if nothing else!
Eventually, we will return to the evolving protection of asylum seekers in the pre-2014 era and eradicate the damage to our fundamental values and the rule of law being done by this Administration’s nativist, White Nationalist policies.That’s what the “New Due Process Army” is all about.
Here to tell you how to effectively litigate for the New Due Process Army and to save even more lives of deserving refugees from all areas of the world, particularly from the Northern Triangle, are three of the “best ever.” I know that, because each of them appeared before me during my tenure at the Arlington Immigration Court. They certainly brightened up my day whenever they appeared, and I know they will enlighten you with their legal knowledge, energy, wit, and humanity.
Andrea Rodriguez is the principal of Rodriguez Law in Arlington Virginia. Prior to opening her own practice, Andrea was the Director of Legal Services at the Central American Resource Center (CARECEN). She is a graduate of the City University of New York Law and George Mason University.
Eileen Blessinger is the principal of Blessinger Legal in Falls Church, Virginia. Eileen is a graduate of the Washington College of Law at American University. In addition to heading a multi-attorney practice firm, she is a frequent commentator on legal issues on television and in the print media.
Lisa Johnson-Firth is the principal of Immigrants First, specializing in removal defense, waivers, family-based adjustment, asylum and Convention Against Torture claims, naturalization, U and T visas, and Violence Against Women Act petitions. She holds a J.D. from Northeastern University, an LLB from the University of Sheffield in the U.K., and a B.A. degree from Allegheny College.
Andrea, starting with you, what’s the real situation in the Northern Triangle and the sordid history of the chronic failure of state protection?
Is It Time to Bring the Nation’s Immigration Courts Under the Judicial Branch?
U.S. immigration courts face an “existential crisis.” The American Bar Association says it has a solution.
The American Bar Association is renewing calls for lawmakers to overhaul the nation’s overwrought immigration court system by making the courts independent from the Department of Justice, and therefore from the Trump administration. The association is joined by a broad array of legal workers in accusing the administration of enacting policies that pressure immigration judges to ramp up deportations, with no apparent concern for due process or the rule of law.
The United States immigration court system is not part of the judicial branch, but rather is governed by the Department of Justice’s Executive Office for Immigration Review. The office was created to oversee the courts in 1983; previously they were under the control of the Immigration and Naturalization Service, also under the Department of Justice. Last week, the ABA identified an “existential crisis” within this system, finding it subject to “political interference,” to “policies and practices that threaten due process,” and to “longstanding and widespread under-resourcing.” It calls for a Congressional vote to establish the courts as an independent entity per Article I of the Constitution—also known as an Article I Court.
Shortly after President Donald Trump’s inauguration, his administration told the press that it would work to slash an overwhelming backlog of immigration court cases, restoring an overburdened, sclerotic system to working shape. What followed were a seriesofpolicies—among which were quotas on case closures—that observers blame for threatening due process in an effort to facilitate mass-deportation of immigrants, and for exacerbating the immigration court backlog by funneling unprecedented numbers of immigrants into the system.
The Department of Justice did not respond to a request for comment.
Ashley Tabaddor, president of the National Association of Immigration Judges, expresses her organization’s support for an independent immigration court. The ABA, NAIJ, and other organizations, including the Federal Bar Association, began to call for an independent immigration court system long before the Trump administration, during the presidency of Barack Obama.
“We hope that this administration and those mindful of a reasonable approach realize this isn’t a right-wing or left-wing answer; it’s an American answer that protects both efficiency and integrity of the courts,” Tabaddor says. “It hasn’t only been this administration that has pushed back on the idea of an independent [immigration court system]. Unfortunately, part of human nature is it resists what it perceives as giving up power. It means the executive branch would lose direct influence over how [the courts are] used.”
Although the Trump administration has repeatedly acknowledged the backlog and overwhelming challenges faced by immigration judges, it has also opposed an independent immigration court system. James McHenry, director of the Department of Justice office that oversees the courts, told a Senate committee in April that independent courts would not “address any of the core challenges facing the immigration courts.” McHenry repeatedly maintained that all immigrants are afforded due process.
Legal analysts argue, by contrast, that the current status of immigration courts as under the purview of the Department of Justice has politicized their work. “Our current system permits the political branches of government to yield tremendous power over immigration enforcement policies and practices,” says Kathleen Kim, an immigration law professor at Loyola Law School in Los Angeles. “Without an independent judiciary, our system of government provides no check on abuse of that power and immigration court decisions suffer from the taint of impartiality.”
And with a court beholden to the president’s political agenda, immigrant lives—and the Constitution’s guarantees of fair trials—hang in the balance. “As we have seen in the anti-immigrant rhetoric of the Trump administration, the rights of immigrants have become a political football,” says Margaret Russell, a constitutional law professor at Santa Clara University. “Only independent immigration courts can provide a fair forum, as free from partisan politics as possible.”
“Just one day observing in immigration court would highlight how inherently unfair the system can really be for someone fighting for their case,” says Julia I. Vázquez, an immigrant rights professor at Los Angeles’ Southwestern Law School.
Late last year, Pacific Standard reported the story of a Guatemalan woman whose asylum petition had been denied even before a judge had an opportunity to review documents in support of her case, including her initial asylum declaration.
Despite the administration’s promises to help improve the immigration court system, analysts have decried a number of policies that they say have undermined the courts. In April of 2018, then-Attorney General Jeff Sessions required that immigration judges close at least 700 cases a year—with a low rate of appeal—in order to receive a favorable performance review. The move, ostensibly aimed at reducing the backlog, pressured the judges to plow through their caseloads, analysts have said, threatening due process for immigrants. And the move backfired: Rushed rulings are frequently appealed, further compounding the backlog.
In another similar measure in May, Sessions stopped the use of administrative closures, in which immigration judges withhold judgment on a case while immigrants make formal petitions for legal status. Administrative closures had helped judges to prioritize their dockets and avoid getting bogged down with lower-urgency cases.
Coupled with the administration’s unprecedented push to arrest undocumented immigrants with no criminal record, these decisions have made the court’s backlog grow nearly 50 percent under the Trump administration, according to the Syracuse University non-profit data research center, Transactional Records Access Clearinghouse. In November, there were over 768,000 outstanding cases.
Even with overwhelming concerns over backlog and broader questions about due process, it remains highly improbable that the immigration courts will become independent under a divided Congress and the Trump administration. “Keeping immigration courts within the executive branch will ensure adherence to the Trump administration’s anti-immigrant policy objectives,” Kim says.
What’s more, control of the immigration courts will enable the Trump administration to continue to ramp up deportations without the approval of a split Congress. “The opposition [to independent courts] is likely to defend executive branch oversight of immigration courts as the best antidote to Congressional inaction,” Russell says.
NAIJ’s Tabaddor says that, while it is not likely that immigration courts will be made independent anytime soon, there’s growing awareness among lawmakers from both parties of the problems with the system.
“As we see the expansion of the groundswell of support [for independence], it’ll be difficult for Congress not to act,” she says. “Of course, you always have to have hope in life, otherwise it’s not worth it.”
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EOIR’s “no problem” response to the unfolding disaster which, under DOJ political direction, its own bureaucrats have helped engineer “doesn’t pass the straight face test.”
Of course, giving control of Immigration Court dockets back to the judges who actually have to hear and decide cases is the necessary first step in rationalizing the system, ending the DOJ/EOIR’s “Aimless Docket Reshuffling,” and establishing priorities based on fundamental fairness to all parties and overall judicial efficiency, not solely the “DHS enforcement priority of the day.”
Nobody can solve overnight all the problems in our Immigration Courts that have built up and been allowed to fester over decades. But, placing the courts under apolitical, professional judicial control, like all other successful courts, would be a necessary first step from which “best practices” and other efficiencies that are consistent with Due Process would flow.
ASSOCIATION OF DEPORTATION DEFENSE ATTORNEYS (“ADDA”)
NEW YORK CITY
MARCH 21, 2019
“THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT”
BY
PAUL WICKHAM SCHMIDT
U.S. IMMIGRATION JUDGE (RETIRED)
Good evening. Thanks so much for coming out tonight. As you know, I’m retired, so I no longer have to give my famous, or infamous, “super-comprehensive disclaimer.” However, I do want to hold my fellow panelists, ADDA, and anybody else of any importance whatsoever “harmless” for my following remarks.
They are solely my views, for which I take full responsibility. That’s right, no party line, no “bureaucratic doublespeak,” no BS. Just the truth, the whole truth, and nothing but the truth, of course as I define truth.
In my brief “5-4-1 program,” I’m going to tell you five horrible problems infecting justice and Due Process in today’s U.S. Immigration Courts; 4 needed reforms, and one solution.
First, the problems, with which I’m sure most of you are painfully familiar. This isn’t a “court system” as any right-thinking person would envision it.
First, unlike any normal court system, the chief prosecutor, the Attorney General selects, directs, and “supervises” the “judges.” Not surprisingly, over the last decade, over 90% of the judges have come directly from government or prosecutorial backgrounds. Well-qualified candidates from private practice, NGOs, and academia have effectively been excluded from participation in today’s immigration judiciary. As part of his “improper influence” over the Immigration Courts, the Attorney General has imposed, over the objection of all judges I’m aware of, demeaning and counterproductive “production quotas” that elevate productivity and expediency over quality, Due Process, and fundamental fairness.
Second, notwithstanding that, according to the Supreme Court, “everything that makes life worth living” might be at issue in Immigration Court, there is no right to appointed counsel. Therefore, DOJ has taken the absurd position that infants, toddlers, and others with no understanding whatsoever of our complicated legal, asylum, and immigration systems are forced to “represent themselves” in life or death matters against experienced ICE Counsel. The Government disingenuously claims that this complies with Due Process.
Obviously, these first two factors give the DHS a huge built-in advantage in removal proceedings. But, sometimes that isn’t enough. Somehow, despite the odds being stacked against them, the individual respondent or applicant prevails. That’s when the “third absurdity” comes in to play.
The chief prosecutor, the Attorney General, can reach into the system and change any individual case result that he or she doesn’t like and rewrite the immigration law in DHS’s favor through so-called “certified precedents.” As you know, former Attorney General Sessions, a committed lifelong xenophobe and the self-proclaimed “king of immigration enforcement” exercised this authority often, more than the preceding two Attorneys General over the eight years they served. Sometimes he intervened even before the BIA had a chance to rule on the case or over the joint objections of both the individual and the DHS.
Fourth, this system operates under an incredible 1.1 million case backlog, resulting largely from what we call “Aimless Docket Reshuffling” or “ADR,” by DOJ politicos and their EOIR underlings. This largely self-created backlog continues to grow exponentially, even with a significant increase in judges, without any realistic plan for backlog reduction. In other words, under the “maliciously incompetent” management of this Administration, more judges has meant more backlog.
Even more disgustingly, in an attempt to cover up their gross incompetence, DOJ and EOIR have attempted to shift the blame to the victims — asylum applicants, migrants, their hard-working often pro bono or low bono lawyers, and the judges themselves. Sophomoric, idiotic non “solutions” like “deportation quotas for judges,” limitations on legitimate continuances, demeaningly stripping judges of the last vestiges of their authority to manage dockets through administrative closing, and mindlessly re-docketing cases that should remain off docket have been imposed on the courts over their objections.
The result has been an increase in “Aimless Docket Reshuffling” the only thing that DOJ politicos and EOIR bureaucrats seem to excel in. How many of YOU have been victims of ADR?
Fifth, the Administration, DOJ, and EOIR use so-called “civil immigration detention” mostly in absurdly, yet intentionally, out-of-the-way locations, to limit representation, coerce migrants into abandoning claims or appeals, and supposedly deter future migration, even through there is scant evidence that abusive detention actually acts as a deterrent. This is done with little or no effective judicial recourse in too many cases. Indeed a recent TRAC study shows neither rhyme nor reason in custody or bond decisions in Immigration Court, even in those cases where the Immigration Judges at least nominally had jurisdiction to set bond.
Now, I’ve told you how due process and fairness are being mocked by DOJ and EOIRin a dysfunctional Immigration Court system where judges have effectively been told to act as “DOJ attorneys” carrying out the policies of their “partners” in DHS enforcement, supposedly a separate party to Immigration Court proceedings but now “driving the train.”
Here are the four essential reforms. First, and foremost, a return to the original “Due Process Focus” of the Immigration Courts: through teamwork and innovation be the world’s best courts guaranteeing fairness and Due Process for all. DOJ politicos and EOIR bureaucrats must be removed from their improper influence over this system that has turned it into a tool of DHS enforcement. Everything done by the courts must go through a “Due Process filter.”
Second, replace the antiquated, inappropriate, bloated, and ineffective “Agency-Style Structure” with a “Court-Style Structure” with sitting judges rather than DOJ politicos and EOIR bureaucrats in charge. Court administration should be decentralized through local Chief Judges, as in other systems, appointed competitively through a broad-based merit system and required to handle a case load. Sitting judges, not bureaucrats, must ultimately be in charge of administrative decisions which must be made in a fair and efficient manner that considers the legitimate needs of DHS enforcement, along with the needs of the other parties coming before the court, and results in a balanced system, rather than one that inevitably favors DHS enforcement over Due Process, quality, and fairness.
Third, create a professional administrative office modeled along the lines of the Administrative Office for U.S. Courts to provide modern, effective judicial support and planning. The highest priorities should be implementing a nationwide e-filing system following nearly two decades of wasted and inept efforts by EOIR to develop one, efforts that have once again been put “on hold” due to mismanagement. A transparent, merit-based hiring system for Immigration Judges, with fair and equal treatment of “non-government” applicants and a system for obtaining public input in the process is also a must. Additionally, the courts must be redesigned with the size of the dockets and public service in mind, rather than mindlessly jamming a 21st century workload into “mini-courts” designed for a long bygone era.
Fourth, a real Appellate Division that performs as an independent court, must replace the “Falls Church Service Center” a/k/a the BIA. The crippling Ashcroft purge-related bogus “reforms” that turned the BIA into a subservient assembly line must be eradicated. The BIA is a so-called “deliberative body” that is far removed from the public it serves and no longer deliberates in a publicly visible manner. The Appellate Division, not politicos and bureaucrats, must be responsible for promulgating precedents in controversial areas, insuring that the generous standards set forth in Cardoza-Fonseca and Mogharrabi are made realities, not just lip service, and reining in wayward judges, the worst of whom have turned some areas into veritable “asylum and due process free zones” resulting in loss of public confidence as well as denial of Due Process and unfair removals.
Some will say that these reforms only deal with two of the five glaring problems — prosecutorial control and political interference. But, an independent, judge-run, Due Process focused U.S. Immigration Court where judges control their own dockets free from political interference and bureaucratic incompetence will be able to work with both private entities and the DHS to solve the problems leading to lack of representation, “Aimless Docket Reshuffling” and backlog building, and abusive use of immigration detention.
No, all problems that have been allowed to fester and grow over decades of calculated indifference and active mismanagement won’t be solved “overnight.” Additional legislative fixes might eventually be necessary. But, fixing Due Process is a prerequisite that will enable other problems and issues to be constructively and cooperatively addressed, rather than just being swept under the carpet in typical bureaucratic fashion.
So, now the “One Solution:” Congress must create an independent Article I U.S. Immigration Court. That’s exactly what the ABA Commission on Immigration recommended in a comprehensive study and report released yesterday.
Thus, the ABA joins the FBA, AILA, and the NAIJ, all organizations to which I belong, in recommending an Article I legislative solution. Significantly, after watching this Administration’s all out assault on Due Process, common sense, truth, the rule of law, human decency, and best practices, the ABA deleted a prior “alternative recommendation” for an independent agency within the Executive Branch. In other words, we now know, beyond any reasonable doubt, that the Executive Branch is both unwilling and unable to run an independent court system in accordance with Due Process.
I highly recommend that you read the comprehensive ABA report in two volumes: Volume I is an “Executive Summary;” Volume II contains the“Detailed Findings.” You can find it on the ABA website or on immigrationcourtside.com my blog, which, of course, I also highly recommend.
In closing, we need change and we need it now! Every day in our so-called “Immigration Courts” Due Process is being mocked, fundamental fairness violated, and unjust results are being produced by a disastrously flawed system run by those with no interest in fixing it. Indeed, one of the stunning recommendations of the ABA is that no further judges be added to this totally dysfunctional and out of control system until it is fixed.
As the great Dr. Martin Luther King, Jr., once said “injustice anywhere is a threat to justice everywhere.” Tell your elected representatives that you’ve had enough injustice and are sick and tired of being treated as actors in a repertory company specializing in “theater of the absurd” masquerading as a “court system.” Demand Article I now!
Thanks for listening! Join the New Due Process Army, do great things, and Due Process Forever!
(03-21-19)
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The horror stories from those actually attempting to practice in the NY Immigration “Courts,” the examples of “Aimless Docket Reshuffling” (“ADR”) from my friend, “Our Gang” colleague, and fellow panelist Retired U.S. Immigration Judge Patty McManus, and pressing need for an independent Article I Court to replace this dishonest and dysfunctional mess described by fellow panelist NY Attorney Jake LaRaus, of Youman, Mateo, & Fasano were most compelling.
Recurring complaints from the audience were the unequal treatment of private attorneys and DHS Counsel, the glaringly inappropriate deference shown by some Immigration Judges to DHS, and the unwillingness of some judges to enforce rules against the DHS. In other words, many of the things that EOIR originally supposed to “cure” are now “back in spades.” Everyone echoed the theme that this is a system in regression, where things that “worked” at one time have now been intentionally disabled by DHS and EOIR.
Independence and competent, professional, apolitical judicial management by judges would go a long way toward reducing today’s
Government-created backlogs. The problem is definitely not, as some would claim, the number of asylum seekers. Indeed legitimate asylum seekers all over this system who have been waiting years for their cases to be heard and who have time and time again been the victims of “ADR” and politicized meddling with the legal standards are among the many victims of this broken system.
We should all be ashamed of this disgraceful perversion of our Constitution and grotesque waste of Government money going on every day. The solution isn’t “rocket science;” it’s Article I. An achievable idea “whose time has come.”
JUSTICE PREVAILS AGAIN INIMMIGRATION COURTS EVEN IN THE “POST-A-B-“ ERA — Outstanding Analysis By Judge Eileen Trujillo Of The U.S. Immigration Court In Denver, CO, Recognizes “Women In Mexico” As PSG, Finds Nexus, Grants Asylum, Distinguishes A-B-
Congrats to NDPA warrior (and former EOIR JLC) Camila Palmer of Elkind Alterman Harston, PC in Denver who represented the respondents! Great representation makes a difference; it saves lives!
Conversely, the DOJ EOIR policies that inhibit representation, discourage full and fair hearings, and hinder sound scholarship by U.S. Immigration Judges, thereby making it more challenging for judges to produce carefully researched and written decisions (rather than haphazard contemporaneous oral decisions which often lack professional legal analysis) are a direct attack on Due Process by Government organizations that are supposed to be committed to upholding and insuring it.
Go to this link for a redacted copy of Judge Trujillo’s decision:
U.S. Immigration Judges are not trained in how to recognize and grant asylum cases (or anything else, favor that matter — judicial training was a recent “casualty” of budget mismanagement by DOJ & EOIR). The BIA, always reluctant to publish “positive precedents” on asylum, is keeping a low profile after its emasculation by former AG Sessions. So these cases actually become “de facto precedents” for advocates to use in assisting Immigration Judges and DHS Assistant Chief Counsel in “doing the right thing” in critically examining and completing cases efficiently in the face of the “hostile environment” for Due Process and cooperation in court that has been created by EOIR and DOJ.
It’s a huge “plus” that Judge Trujillo was familiar with and used Judge Sullivan’s outstanding opinion in Grace v. Whitaker which “abrogated” (in Judge Trujillo’s words) or “dismantled and discredited” (my words) Sessions’s biased and legally incorrect decision in Matter of A-B-. Shockingly, during the recent FBA Asylum Conference in New York, Judge Jeffrey Chase and I learned from participants that some U.S. Immigration Judges weren’t even aware of Grace v. Whitaker until counsel informed them! Talk about a system in failure! But, the “bright side” is once aware of the decision, Immigration Judges almost everywhere reportedly were appreciative of the information and eager to hear arguments about how its reasoning applied to the cases before them.
It’s important to remember that in the perverse world of today’s EOIR, fairness, scholarship, teamwork, respect, and correct decision-making — in other words, Due Process of law — have been replaced by expediency, focus on “numbers,” churning out orders of removal, and assisting DHS with its “gonzo” and ever-changing enforcement efforts. What real court operates as an adjunct of the prosecutor’s office? Well, that’s what happens in most of the third word countries and authoritarian states that send us refugees. But, in the United States, courts are supposed to operate independently of the prosecutor.
That’s why EOIR, in its present form of a “captive” highly politicized immigration enforcement organization “must go” and be replaced by an independent Article I Court. Until then, everybody who relies on this system, including ironically not only individuals, but DHS enforcement, Article III Courts, and the Immigration Judges and BIA Judges themselves, will continue to suffer from the dysfunction created by “malicious incompetence” and “Aimless Docket Reshuffling.”
Thanks again and congrats to Camila for adding to the growing body of correct asylum jurisprudence available on the internet for all to use. Just think what could be accomplished if we had a Government devoted to “using best practices to guarantee fairness and Due Process for all!”
Blaine Bookey, Co-Director, Center for Gender & Refugee Studies, Hastings Law
Me
“Eric the Cameraman”
NEW YORK, NY, Friday, March 8, 2019. The “CBS Team,”* Jeffrey S. Chase, Blaine Bookey, and Paul Wickham Schmidt wowed the sellout crowd at the FBA Asylum Conference at NY Law School Friday. Speaking in the coveted “final slot” of the afternoon, the “CBS Gang” gave an enthusiastic audience lots of reasons and ways to go out and oppose former Attorney General Sessions’s perversion of American asylum law in Matter of A-B-.
In that case, Sessions reversed nearly two decades of progress and consensus in asylum law to “stick it” to Ms. A-B-, a survivor of extreme domestic violence persecution in El Salvador who fled to the U.S., escaping torture and death threats.
Schmidt, a former Immigration Judge in Arlington, Virginia and past Chairman of the Board of Immigration Appeals, led off with a rousing speech blasting Sessions for bias, intellectual dishonesty, and bad lawyering. He agreed with U.S. District Judge Emmet G. Sullivan in the recent case Grace v. Whitaker that much of what Sessions said was non-binding dicta.
Schmidt also formulated seven ways for advocates to challenge the decision. He brought the crowd to its feet with his closing exhortation to what he called the New Due Process Army: “Due Process forever, xenophobia never!”
Bookey, Co-Director of the Center for Gender and Refugee Studies at Hastings Law and a long time refugee advocate, appeared “larger than life” from California through the “miracle of televideo.” She showed a moving video of Ms. A-B- relating the horrible rape, beatings, death threats and abandonment by her government that forced her to leave El Salvador and her fear that she would be killed upon return.
Bookey also pointed out that this isn’t a mere “difference of opinion” among lawyers. Rather, Matter of A-B- is a concerted and evil attempt to undo an existing national and international legal consensus that women facing domestic violence can and must be protected under refugee law. The reversion sought by Sessions and his restrictionist supporters would basically return women to the “dark ages” and result in torture, death, maiming and rape of countless females by persecutors throughout the world. Bookey also offered the Center for Refugee and Gender Studies at Hastings as a “clearinghouse” for litigation and litigation strategies attacking A-B-.
Batting “clean up,” retired Immigration Judge and noted asylum historian Chase led the audience in a tribute for Bookey’s “in the trenches” heroism in staunchly defending the rights of refugee women throughout our nation and the world. He then proceeded to eviscerate Sessions’s decision by going through Ms. A-B-‘s actual evidence in detail.
He pointed out how Sessions ignored facts of record supporting a grant of asylum to Ms. A-B- on the merits regardless of the favorable BIA precedent that Sessions went to great lengths to overrule. He also mentioned the ongoing efforts of “Our Gang” of retired U.S. Immigration Judges, assisted pro bono by some of America’s best lawyers, to educate the Article III Courts as to the realities of asylum adjudication and the systemic destruction wrought by Sessions’s unprovoked attack on women’s asylum rights.
The Conference concluded with a request by FBA immigration Section Chair Elizabeth “Betty” Stevens for everyone to contract their Senators and Representatives about the need for an independent Article I U.S. Immigration Court as proposed by the FBA, ABA, National Association of Immigration Judges, AILA, and others.
Netflix filmed the proceedings for a future documentary about American immigration. Additionally, star immigration reporter Nicole Neara of Law 360 was in the audience. Immediately following the closing, Conference organizer and NY Law School Professor Claire “Human Dynamo” Thomas left for the Southern Border with a group of students committed to putting into effect what they had learned about strategies for ensuring due process and re-establishing justice in the U.S. asylum system.
*The “CBS Hour,” “CBS Team,” and “CBS Gang” have no relationship to the CBS Network, CBS Broadcasting, CBS Sports, CBS News, or any other legitimate organization.
Good afternoon, and thanks so much for inviting me. In the “old days,” I would have started with my comprehensive disclaimer. But, now that I’m retired, I’m just going to hold the FBA, New York Law School, my fellow panelists, and anyone else of any importance whatsoever “harmless” for my remarks today. They are solely my views, for which I take full responsibility. No sugar-coating, no bureaucratic doublespeak, no “party line,” no BS – just the unvarnished truth, as I see it!
“We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence; therefore they are entitled to enter the United States. Well, that’s obviously false but some judges have gone along with that.”
“Good lawyers, using all of their talents and skill, work every day—like water seeping through an earthen dam—to get around the plain words of the INA to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty.”
“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation. Your job is to apply the law — even in tough cases,”
Those, my friends, are obviously not my words. Whose words are they? They are the words of former Attorney General Jeff Sessions who ran the U.S. Immigration Courts for nearly two years.
Incredibly, this totally biased, xenophobic, misinformed, and glaringly unqualified individual, who had actually been rejected for a Federal Judgeship by his own party because of alleged racial bias, was in charge of our U.S. Immigration Court system. That helps explains why it is such a total disgraceful mess today from both a Due Process and administrative standpoint.
The Immigration Courts have a “known backlog” of over 1.1 million cases, with tens, perhaps hundreds, of thousands of additional cases likely squirreled away and still unaccounted for following the unnecessary “shutdown,” no signs of abating, and absolutely no, I repeat no, credible planfor reducing or controlling the backlog consistent with Due Process and our asylum laws. The DOJ’s process for increasing the backlog, known as “Aimless Docket Reshuffling” – and their outrageous attempts to “shift the blame” to respondents and their attorneys – are, as my esteemed former colleague retired Judge M. Christopher Grant used to say, “on steroids.” And, as my friend and fellow panelist, Judge Jeffrey Chase pointed out this week to BuzzFeed News, the current “strategy shift” to slowing down judicial and court staff hiring and abandoning once again the “e-filing program” that EOIR has failed to roll out after two decades of failed efforts is a guarantee that: “More people will wait longer!”
Acting Attorney General Whitaker’s questionable certification of two important cases during his brief tenure promises a continuation of political interference with the Immigration Courts in derogation of Due Process.
Don’t expect any improvement under current Attorney General Bill Barr. He’s known as an “enforcement solves all problems” immigration hard liner who co-authored an article praising Sessions for his attacks on Civil Rights, immigrants, and other vulnerable communities.
One of Sessions’s most cowardly and reprehensible actions was his atrocious distortion of asylum law, the reality of life in the Northern Triangle, and Due Process for migrants in Matter of A-B-. There, he overruled the BIA’s important precedent in Matter of A-R-C-G-, a decision actually endorsed by the DHSat the time, and which gave much need protection to women fleeing persecution in the form of domestic violence.
Take it from me, Matter of A-R-C-G-was one of the few parts of our dysfunctional Immigration Court system that actually workedand provided a way of moving cases efficiently through the court system in accordance with Due Process while consistently granting much needed protection to some of the most vulnerable and most deserving refugees in the world!
Sessions is gone. But, his ugly legacy of bias and unfairness remains. Fortunately, because he was a lousy lawyer on top of everything else, he failed to actually accomplish what he thought he was doing: wiping out protection for refugee women, largely from Central America. That’s why it’s critically important for you, as members of the “New Due Process Army” to fight every inch of the way, for as long as it takes, to restore justice and to force our U.S Immigration Courts to live up to their unfulfilled, and now mocked, promise of “guaranteeing fairness and Due Process for all!”
The only real,Article IIIFederal Judge who has ruled on Matter of A-B-to date largely supports my criticisms of Sessions’s effort to distort asylum law against refugee women. It’s a decision written by U.S. District Judge Emmet G. Sullivan in Washington, D.C. called Grace v. Whitaker. You will want to read that decision. There is also an outstanding analysis by my fellow panelist Judge Jeffrey S. Chase on his blog.
Unfortunately, but not unexpectedly, EOIR has purported to limit Grace’s rejection of Matter of A-B-to so called “Credible Fear Reviews.” In other words, they have improperly, and perhaps unethically, instructed Immigration Judges and the BIA not to apply Gracein individual asylum hearings.
But, that shouldn’t stop you from shoving Grace back down their throats! There is an outstandingonline practice advisory on how to argue Gracein Immigration Court by my fellow panelist Blaine’s amazing colleague, my good friend Professor Karen Musalo. I also reposted it in my blog, immigratoncourtside.com.
I’m going to give you sevenvery basic tips for overcoming Matter of A-B-. I’m sure that Blaine and her colleagues, who are much more involved in the day to day litigation going on in the courts than I am, can give you lots of additional information about addressing specific issues.
First, recognize that Matter of A-B- really doesn’t change the fundamental meaning of asylum.It just rejected the way in which the BIA reached its precedent in A-R-C-G-— by stipulation without specific fact-findings based on the administrative record. Most of it is mere dicta.
On a case by case basis, domestic violence can still be a proper basis for granting asylum in many cases. Indeed, such cases still are being granted by those Immigration Judges committed to following the rule of law and upholding their oaths of office, rather than accepting Sessions’s invitation to “take a dive.”
Just make sure you properly and succinctly state your basis, establish nexus, and paper the record with the overwhelming amount of reliable country condition information and expert opinion that directly contradicts the bogus picture painted by Sessions.
Second, resist with all your might those lawless judges in some Immigration Courts who are using, or threatening to use, Sessions’s dictum in Matter of A-B- to deny fair hearings or truncate the hearing process for those claiming asylum through domestic violence.If anything, following the overruling of A-R-C-G-,leaving no definitive precedent on the subject, full, fair case-by-case hearings are more important than ever. Under Due Process, asylum applicants are entitled to a full and fair opportunity to present their claims in Immigration Court. Don’t let wayward, biased, or misinformed Immigration Judges deny your clients’ constitutional and statutory rights.
Third, keep it simple. Even before A-B-, I always said that any proposed “particular social group” (“PSG”) longer than 25 words or containing “circular” elements is D.O.A. I think that it’s time to get down to the basics; the real PSG here is gender! “Women in X country” is clearly a cognizable PSG. It’s undoubtedly immutable or fundamental to identity; particularized, and socially distinct. So, it meets the BIA’s three-part test.
And, “gender” clearly is one of the biggest drivers of persecution in the world. There is no doubt that it is “at least one central reason” for the persecution of women and LGBT individuals throughout the world.
As Judge Chase and I recently reported on our respective blogs, a number of these “women as a PSG” cases have succeeded in the “Post-A-B-Era.” The detailed unpublished analyses by Immigration Judges are available online and, although of course not precedents, should give you helpful ideas on how to construct arguments and rebut ICE attempts to invoke A-B- to bar meritorious asylum claims by abused women.
Fourth, think political. There is plenty of recent information available on the internet showing the close relationship between gangs and the governments of the Northern Triangle. In some cases, gangs are the “de facto government” in significant areas of the country. In others, gangs and local authorities cooperate in extorting money and inflicting torture and other serious harm on honest individuals who resist them and threaten to expose their activities. Indeed, a very recent front-page article in the Washington Postpointed out that gangs are so completely in charge in El Salvador that U.S-trained policemen are forced to flee and seek asylum in the United States. Additionally, gangs are the largest employer in El Salvador.
In many cases, claiming political or religious persecution should be a stronger alternative ground than PSG. As one of my friends recently pointed out, because of the incorrect precedents by the BIA, Immigration Judges almost always reject gang cases as actual or imputed political opinion. That’s plain wrong.
We need to start making the record and fighting back, using the large amount of available evidence and expert testimony on how gangs have infiltrated and influence every aspect of life in the Northern Triangle including, of course, politics and government. It’s time for the “EOIR charade” of “let’s not grant gang-based asylum cases” to end, once and for all.
Fifth, develop your record. The idea that domestic violence and gang-based violence is just “common crime” advanced by Sessions in A-B-is simply preposterous with regard to the Northern Triangle. Establish records that no reasonable factfinder can refute or overlook! Use expert testimony or expert affidavits to show the real country conditions and to discredit the watered down and sometimes downright false scenarios set forth in Department of State Country Reports, particularly under this Administration where integrity, expertise, and independence have been thrown out the window.
Sixth, raise the bias issue. As set forth in a number of the Amicus Briefs filed in Matter of A-B-, Sessions clearly was a biased decision maker. Not only had he publicly dismissed the claims of female refugees suffering from domestic violence, but his outlandish comments spreading false narratives about immigrants, dissing asylum seekers and their “dirty lawyers,” and supporting DHS enforcement clearly aligned with him with one party to litigation before the Immigration Courts. By the rules governing judicial conduct there was more than an “appearance of bias” here – there was actual bias. We should keep making the record on the gross violation of Due Process caused by giving a biased enforcement official like Sessions a quasi-judicial role.
Seventh, and finally, appeal to the “real” Article III Courts.I can’t over-emphasize this point. What’s happening in Immigration Court today is a parody of justice and a mockery of legitimate court proceedings. It’s important to “open the eyes” of the Article III Judges to this travesty which is threatening the lives of legitimate refugees and other migrants.
Either the Article III’s do their jobs, step in, and put an end to this “theater of the absurd,” or they become complicitin it. There’s only one “right side of the law and history” in this fight. Those who are complicit must know that their actions are being placed in the historical record – for all time and for their descendants to know – just like the historical reckoning that finally is happening for so- called “Confederate Heroes” and those public officials who supported racism and “Jim Crow.”
Now is the time to take a stand for fundamental fairness, the true rule of law, and simple human decency! Join the New Due Process Army and fight to vindicate the rights of asylum seekers under our laws against the forces of darkness and xenophobic bias! Due process forever! Xenophobia never!
