"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.
As of December 31, 2023, only the first quarter of FY 2024, the Biden Administration had already initiated 696,400 cases at EOIR. That’s more than the highest FULL FY (12 mo.) of the Trump Administration, 2019, in which 694,771 cases were started.
Moreover, in FY 2023, Biden filed an astounding 1,485,769 cases, more than twice the number that Trump did in FY 2019. Biden’s numbers in FY 2023 topped Trump’s other three years (278,218; 356,034; 216,589) BY MULTIPLES. In fact, Biden instituted approximately as many Immigration Court cases in FY 2023 as Trump did in his entire FOUR YEARS and is on a path to greatly exceed his 2023 total in FY 2024!
So the Trump/GOP blather about Biden not enforcing immigration laws is complete BS!
Biden’s muscular immigration enforcement efforts give lie to the GOP’s “open borders” claims, a point seldom made by the “mainstream media.” But, such over the top enforcement is NOT necessarily good news for America.
Even with more Immigration Judges under Biden — going on 700 — the annual decision-making capacity at EOIR is somewhere between 350,000 to 550,000. So, the Immigration Courts will not come close to keeping up with the flow of incoming cases, let alone reducing the backlog that has now mushroomed to more than 3,000,000.
There is no apparent plan for controlling the EOIR backlog and improving the much-criticized quality of decisions, which disproportionately harms legal asylum seekers of color while often adding to the backlog when rejected on review. That makes the Administration’s institution of new cases on a level guaranteed to create additional backlog appear irresponsible.
Moreover, it hasn’t helped that Attorney General Garland ignored pleas from most experts to make EOIR reform one of his highest, ideally his highest, national priority. Nor has Congress paid much attention to the glaring, chronic dysfunction at EOIR, despite pending legislation to create an Article I Immigration Court!
Biden is following in the footsteps of his Dem predecessors Obama and Clinton. In their initial election campaigns they “played to their base” by criticizing harsh GOP enforcement policies and extolling the benefits of immigration. Once in office, however, they became convinced that their credibility, and perhaps manhood, depended on out-enforcing and “out-crueling” their GOP predecessors.
Of course, this naive approach never produces the apparently desired result: That the GOP will acknowledge that Dems are serious about enforcement and strike the long needed “grand bargain” on immigration reform.
Predictably, that always backfires. The GOP just keeps repeating their “open borders” big lies, and the mainstream media provide little, if any, critical analysis or pushback. As long as kids aren’t being proudly exhibited in cages, the “mainstreams” quickly lose interest in the suffering, dehumanization, and death piling up on both sides of the border and in the “New American Gulag” as a result of the disastrously (and predictably) failed “enforcement-only” approach.
What Biden’s effort to “out-Trump Trump” REALLY shows is that more enforcement and attempting to use anti-immigrant legal decisions and a hopelessly backlogged adjudication system that keeps legal asylum seekers waiting indefinitely with a significant chance of wrongful denial if and when they are reached as a “deterrent,” doesn’t work, and in fact never has worked!
What’s needed is actually painfully obvious: A balanced approach that combines a properly generous asylum adjudication system, more avenues for legal immigration (both permanent and temporary), and an independent, functioning, expert, due-process oriented Immigration Court with reasonable, targeted, humane enforcement. That’s a message that both parties and the mainstream media are ignoring, to our national detriment. Too many Americans seem to have forgotten that in the process of dehumanizing and demonizing “the other” we degrade ourselves.
Or, put another way, we can diminish ourselves as a nation, but it won’t stop human migration!
Mary Meg McCarthy Executive Director National Immigrant Justice Center PHOTO: LinkedinA girl peers out from an encampment at the U.S.-Mexico border where she and several hundred people waited to present themselves to U.S. immigration to seek asylum. Politicos of both parties disgracefully treat the lives of asylum seekers as “collateral damage” and apparently expect no consequences from their deadly, inhumane, and often illegal actions against legal asylum seekers! / Photo by David Maung
Elected officials must act to prevent more migrant deaths
The United States has the resources to welcome new neighbors, but it is going to take cooperation, from the White House to the mayor’s office, to prevent further loss of life and improve safety for migrants.
By Letters to the Editor Dec 21, 2023, 3:32pm CST
It was heartbreaking to learn of the death of 5-year-old Jean Carlos Martinez Rivero, who had been living with his family at a privately contracted Chicago migrant shelter. This tragedy must be a wakeup call for all levels of government to start working together to protect people’s basic human rights at a time of increasing global humanitarian displacement.
For months, community members raised concerns about conditions inside the city’s shelters and volunteered to help better meet migrants’ basic needs. The accounts of life inside the shelter now coming to light are disturbingly similar to those that my colleagues at the National Immigrant Justice Center hear from clients held in immigration detention centers.
The city and the companies profiting from shelter contracts must be held accountable.
No doubt, the city has been forced to face the unprecedented challenge of welcoming thousands of new neighbors with minimal support from the federal government. The Biden administration and Congress must also be held accountable to repair the broken immigration system, support cities like Chicago that are welcoming migrants, and provide legal pathways so new arrivals have access to employment, secure housing and safety.
Jean Carlos’ death occurred at the same time the Biden administration and some U.S. senators are considering signing off on extreme anti-immigrant legislation in exchange for military aid for Ukraine and Israel.
The proposals under negotiation would create permanent new barriers to asylum protection and put U.S. immigrant communities at heightened risk of mass deportations. The proposals are structured to put Black, Brown and Indigenous communities at most risk.
Biden seems to have lost sight of his prior promises to defend immigrants’ rights, not to mention the U.S. government’s obligations to uphold international human rights law. Chicagoans should be holding our own Sens. Dick Durbin and Tammy Duckworth accountable to loudly oppose these proposals.
The United States has the resources to welcome new neighbors, but it is going to take cooperation at every level — from the White House to the mayor’s office — to prevent further loss of life and improve access to safety for migrant communities.
Mary Meg McCarthy, executive director, National Immigrant Justice Center
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Unfortunately, accountability seems unlikely unless it happens at the ballot box.The GOP has become the party of inhumanity, irresponsibility, and immunity. And, although the Biden Administration and “wobbly” Dems tend to avoid overtly dehumanizing asylum seekers with their language, their actions and attitudes too often mirror those of Trump, Miller, and the GOP nativists. Indeed, quite disgustingly, politicos of both parties appear to expect to harvest political gains from the blood of migrants! 🤮
The Senate is basically engaging in “bipartisan” negations to knowingly and intentionally violate domestic and international protection laws, abrogate constitutional due process, and increase the number of unnecessary deaths of asylum seekers. That arrogant politicos, on both sides of the aisle, although primarily the GOP, openly advocate for such actions shows just how little fear of any type of accountability they have.
In many ways, that’s precisely the message that Trump and his MAGAmaniacs have been pushing — intentionally hateful and inflammatory language, followed by horrible, sometimes deadly, actions with little or no fear of any type of accountability.Sadly, the Dems seem to think that a program of cowardly acquiescence, rather than principled opposition, is the key to political success.
WASHINGTON (AP) – President Joe Biden is taking a more active role in Senate negotiations about changes to the immigration system that Republicans are demanding in exchange for providing money to Ukraine in its fight against Russia and Israel for the war with Hamas.
The Democratic president has said he is willing to make “significant compromises on the border” as Republicans block the wartime aid in Congress. The White House is expected to get more involved in talks this week as the impasse over changes to border policy has deepened and the money remaining for Ukraine has dwindled.
Republican Sen. James Lankford of Oklahoma, who is leading the negotiations, pointed to the surge of people entering the U.S. from Mexico and said “it is literally spiraling out of control.”
But many immigration advocates, including some Democrats, say some of the changes being proposed would gut protections for people who desperately need help and would not really ease the chaos at the border.
Connecticut Sen. Chris Murphy, the top Democratic bargainer, said the White House would take a more active role in the talks. But he also panned Republican policy demands so far as “unreasonable.”
. . . .
Critics say the problem is that most people do not end up getting asylum when their case finally makes it to immigration court. But they say migrants know that if they claim asylum, they essentially will be allowed to stay in America for years.
“People aren’t necessarily coming to apply for asylum as much to access that asylum adjudication process,” said Andrew Arthur, a former immigration court judge and fellow at the Center for Immigration Studies, which advocates for less immigration in the U.S.
Some of what lawmakers are discussing would raise the bar that migrants need to meet during that initial credible fear interview. Those who do not meet it would be sent home.
But Paul Schmidt, a retired immigration court judge who blogs about immigration court issues, said the credible fear interview was never intended to be so tough. Migrants are doing the interview soon after arriving at the border from an often arduous and traumatizing journey, he said. Schmidt said the interview is more of an “initial screening” to weed out those with frivolous asylum claims.
Schmidt also questioned the argument that most migrants fail their final asylum screening. He said some immigration judges apply overly restrictive standards and that the system is so backlogged that it is hard to know exactly what the most recent and reliable statistics are.
. . . .
WHAT MIGHT THESE CHANGES DO?
Much of the disagreement over these proposed changes comes down to whether people think deterrence works.
Arthur, the former immigration court judge, thinks it does. He said changes to the credible fear asylum standards and restrictions on the use of humanitarian parole would be a “game changer.” He said it would be a “costly endeavor” as the government would have to detain and deport many more migrants than today. But, he argued, eventually the numbers of people arriving would drop.
But others, like Schmidt, the retired immigration court judge, say migrants are so desperate, they will come anyway and make dangerous journeys to evade Border Patrol.
“Desperate people do desperate things,” he said.
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Ignoring both the powerful forces that drive human migration and folks who actually work with migrants at the border and in foreign countries seems like a totally insane way to “debate policy.” But, then, whoever said this “nativist-driven debate” on enhanced cruelty, dismantling the rule of law, and de-humanization is rational?
You can read Rebecca’s full article, with an “accessible” explanation of what’s at stake and what’s being proposed at the above link.
U.S. immigration law and policy, including border security and asylum, have nothing to do with Ukraine, NATO, Russia and Putin. Right?
Wrong, if you are a Republican in Congress. Here, let Sen. John Cornyn (R-TX) explain: “I think … Schumer will realize we’re serious … and then the discussions will begin in earnest.”
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If you are still having trouble with the concept, I’ll translate for you: “Yes, we understand and agree that Russia cannot be allowed to take over Ukraine, and we will fund aid to Ukraine, but in exchange, we insist on fundamental changes to our immigration laws to make sure no more Brown people come to America, starting right effing now.” (“Brown,” in this context, means anyone who is poor, Latin American, Asian, African, non-Anglophone…you get the idea.)
How will this play out in the next few weeks? I see three options: 1) Biden and the Dems cave, so the 1980 Refugee Act is scrapped, Dreamers get deported, the southern border is further militarized, and the economy tanks because a good chunk of the workforce is afraid to come to work; or 2) the GOP does a Tuberville and caves; or 3) the Unknown Unknown.
Stay tuned…
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Thanks for telling it like it is, Dan! There is no validity to the GOP’s attempt to punish asylum seekers by unconscionably returning them to danger and death with no process.
The cruelty and threat to life from forcing desperate seekers to wait in dangerous conditions in Mexico, pushing them to attempt entry in ever more deadly locations along the border, detaining them in inhumane substandard prisons in the U.S., and or returning them without meaningful screening by qualified independent decision-makers is overwhelming. That Congress, the Administration, and much of the “mainstream media” choose to ignore, and often intentionally misrepresent, truth and reality about the horrible human and fiscal wastefulness of “border deterrence” doesn’t change these facts!
The Administration’s three year failure to build a functional, robust asylum system at the border with humane reception centers, access to legal assistance, a rational resettlement system, and sweeping, readily achievable, administrative reforms and leadership changes at EOIR and the Asylum Office (as laid out by experts, whose views were dismissed) is also inexcusable.
Yet, the media misrepresents this farce as a “debate.” It’s a false “debate” in which neither disingenuous “side” speaks for the endangered humans whose rights and lives they are bargaining away to mask their own failures and immorality.
Jennifer Habercorn and Burgess Everett report for Politico:
A growing number of Senate Democrats appear open to making it harder for migrants to seek asylum in order to secure Republican support for aiding Ukraine and Israel.
They are motivated not just by concern for America’s embattled allies. They also believe changes are needed to help a migration crisis that is growing more dire and to potentially dull the political sting of border politics in battleground states before the 2024 elections.
“Look, I think the border needs some attention. I am one that thinks it doesn’t hurt,” said Sen. Jon Tester (D-Mont.), one of the Senate’s most vulnerable Democrats in next year’s midterm election.
Tester said he’s eager to see if a bipartisan group of negotiators can come up with an agreement on a policy issue as elusive as immigration. While he refused to commit to supporting a deal until he sees its details, he didn’t rule out backing stronger border requirements. And he’s not alone.
“I am certainly okay with [border policy] being a part of a national security supplemental,” said Sen. Tammy Baldwin (D-Wis.), another Democrat facing reelection next year. On changes to asylum policy, she said: “I would like to see us make some bipartisan progress, which has eluded us for years. The system’s broken.”
. . . .
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Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings Law
Meanwhile, the GOP’s proposal to essentially end asylum — going well beyond the unfair and unduly restrictive policies already imposed by the Administration — has been condemned in the strongest possible terms by human rights and immigration experts. For example, here’s what Professor Karen Musalo, Founder & Director of the Center For Gender & Refugee Studies at Hastings Law, and an internationally-renowned human rights expert, said yesterday:
CGRS Urges Senators to Reject GOP Push to End Asylum
Nov 28, 2023
As negotiations over President Biden’s supplemental funding request continue, the Center for Gender & Refugee Studies (CGRS) urges lawmakers to reject Republican-led proposals that would upend the U.S. asylum system and eviscerate life-saving protections for people fleeing persecution and torture. If enacted, they would erase our longstanding tradition of welcoming asylum seekers and lead to the wrongful return of refugees to countries where they face persecution or torture, in violation of international law.
“These radical proposals amount to a complete abandonment of the U.S. government’s legal and moral obligations to extend protection to refugees fleeing persecution,” Karen Musalo, Director of the Center for Gender & Refugee Studies (CGRS), said today. “In practice, they would result in the persecution, torture, and deaths of families, children, and adults seeking safe haven at our nation’s doorstep. It is utterly shameful that Republican lawmakers are attempting to exploit the budget negotiations process to advance an extremist, anti-immigrant and anti-refugee agenda. The lives of people seeking asylum are not political bargaining chips. We urge lawmakers to join Senator Padilla and other congressional leaders in rejecting these cynical proposals.”
Read the complete Politico article at the first link above.
To me, expressions like “attention” and “bipartisan progress” used by Dem politicos in connection with the Southern border are “code words” for appeasing the GOP nativist right by agreeing to “more border militarization” and “abrogation of the human rights of refugees and asylees!”
I see little “attention” or “bipartisan progress” being discussed on measures that, unlike the GOP “end of asylum/uber enforcement” proposals, would actually address the humanitarian situation on the border (and elsewhere) in a constructive and positive manner:
More, better trained, expert Immigration Judges and Asylum Officers;
Organized resettlement assistance and expedited work authorization for asylum applicants;
Legal assistance for asylum seekers;
An independent Article I Immigration Court;
Revision of the refugee definition to more clearly cover forms of gender-based persecution;
Increased DHS funding for sophisticated undercover and anti-smuggling operations targeting smugglers and cartels;
Adjustment of status for long-term TPS holders.
These are the types effective measures that have long been recommended by experts, yet widely ignored or even directly contravened by those in power. The negative results of “enforcement only” and “extreme cruelty” at the border are obvious in today’s continuing humanitarian situation.
The idea that a forced migration emergency will be “solved” by more draconian enforcement, eradication of human rights, and elimination of due process, as touted by GOP nativists, is a preposterous! Yet, many Dems seem ready, even anxious, to throw asylum applicants and their advocates under the bus — once again!
Unhappily, Congress and the Biden Administration have paid scant attention to the views of experts and those actually involved in relieving the plight of asylum seekers at the border. The politicos continue to dehumanize and demean forced migrants while stubbornly treating a human rights emergency as a “law enforcement crisis” that can be solved with more cruelty and repression.
As experts like Karen Musalo continue to point out, experience shows us that more deterrence and harshness will only make things worse, squandering resources and attention that could more effectively be used to address and alleviate unnecessary human suffering and finally making our refugee and asylum systems function in a fair and efficient manner.
Yet, politicos are more interested in grandstanding, “victim shaming,” and finger pointing than in achieving success and harnessing the positive potential of forced migration for countries like ours fortunate enough to be “receivers” rather than “senders!”
Ending asylum will NOT stop refugees from coming — at least in the long run. Every Administration manipulates or misrepresents statistics to show immediate “deterrent” effect from their latest restrictionist gimmicks (some ruled illegal by Federal Courts). But such “bogus successes” are never durable!
As the current situation shows, decades of failed deterrence merely creates new flows, in different places, piles up more dead migrant bodies, and surrenders the control of border policies to smugglers and cartels. That, in turn, fuels calls by restrictionists and their enablers for harsher, crueler, and ever more expensive (and profitable to some) sanctions imposed on some of the world’s most vulnerable humans.
If asylum ends, America will find itself with a larger, less controllable reality of a growing underground population of extralegal migrants. Contrary to nativist alarmism, this population has remained largely stable recently.
But, that will change as the legal asylum system contracts. Right now, most asylum seekers either apply at ports of entry (often undergoing unreasonable and dangerous waits and struggling with the dysfunctional “CBP One App”) or voluntarily surrender to CBP shortly after entering between ports. The GOP and Dem “go alongs” are determined to change that so that those seeking refuge will have no choice but to be smuggled into the interior where they can become lost in the general population.
This, in turn, will fuel demands by GOP White Nationalists and their Dem enablers for even more expensive and ultimately ineffective border militarization. It will also turn DHS into an internal security police.
Unable to “ferret out” and remove the underground population — because, in fact, they look, act, and are in many cases indistinguishable from native-born Americans and often perform essential services — they will concentrate on harassing and spreading fear among minority populations in America. Also, Trump has also promised that if re-elected, he will abuse his Executive authority to punish his critics and political opponents. Further empowerment of DHS in the interior would be handy in this respect.
Underground populations are also more susceptible to exploitation — another unstated objective of GOP restrictionist policies. What’s better for employers than a disenfranchised workforce who can be fired and turned over to DHS if they demand fair wages or better treatment?
Senate Dems appear to be on the verge of doing precisely what Karen and other experts have repeatedly warned against: using the lives and rights of asylum seekers as a “political bargaining chip” to appease the GOP right and secure military funding for Israel and Ukraine. It’s exactly what happens when experts and those with “on the ground” experience dealing with forced migrants are “locked out of the room” where decisions are made!
While White Nationalist neo-fascists like Stephen Miller and his cronies have remained “at the heart” of GOP policy making on eradicating human rights and punishing asylum seekers, lifetime experts on human rights and asylum find themselves reduced to the role of “outside critics” and “kibitzers” as the Dem Administration and Senate Dems bumble along on the border and human rights. That’s a shame that will certainly diminish and threaten the future of American democracy! And, it’s hard to see how appeasing the GOP restrictionist right will help Dems in 2024!
We are happy to announce that we will be doing occasional guest op-eds here at The Border Chronicle, and today is our first. You probably remember Brian Elmore, the emergency-medicine resident physician who did a Q&A with Melissa last month. In this op-ed he vividly describes what border deterrence does to a person’s flesh, and he makes an eloquent call for its end. After 30 years of this strategy, which has proved both deadly and harmful for people crossing the border, it is our honor to publish this reckoning and call for action, especially since we are entering an election year (it is now November, after all).
Brian is also the cofounder of Clínica Hope, a free clinic for migrants in Ciudad Juárez, Mexico, which he runs with the nonprofit Hope Border Institute.
And lastly, !Feliz Día de Muertos! Todd
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The Political Pathology of Border Deterrence: An Up-Close View of How This Policy Looks in the Emergency Room
“Deterrence won’t solve migration—it will only maim and mangle more men, women, and children. It will send more people to my emergency room. Some it will send to the morgue.”
. . . .
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Read Dr. Elmore’s complete op-ed at the link.
So, exactly what makes “selling out” the legal, civil, and human rights of other persons a viable “strategy option” for Dem politicos, who certainly know better? See, e.g., https://www.politico.com/news/2023/11/02/biden-ukraine-aid-deal-00125125. Sounds “pretty GOP” to me — selling rights that aren’t yours in the first place! See, e.g., Women’s Right to Choose & the “Forced Birth Movement!”
Dems shouldn’t believe that by abandoning asylum seekers and trashing both civil and human rights at the border they will gain any credit from the GOP or leverage from their xenophobic voters. They will just leave a trail of dead bodies and sow the seeds for the destruction of our democracy.
“GOP House Conference en route to Capitol.” PHOTO CREDIT: Ellin Beltz, 07-04-16, Creative Commons License, https://creativecommons.org/licenses/by-sa/4.0/. Creator not responsible for above caption.
Representative Steve Scalise of Louisiana withdrew on Thursday from consideration for the speakership he was on the cusp of claiming after hard-line Republicans balked at rallying around their party’s chosen candidate, leaving the House leaderless and the G.O.P. in chaos.
After being narrowly nominated for speaker during a Wednesday closed-door secret-ballot contest among House Republicans, Mr. Scalise, their No. 2 leader, found himself far from the 217 votes needed to be elected on the House floor. Many supporters of his challenger, Representative Jim Jordan of Ohio, the right-wing Republican endorsed by former President Donald J. Trump, refused to switch their allegiance.
With no clear end in sight to the G.O.P. infighting that has left one chamber of Congress paralyzed at a time of challenges at home and abroad, Mr. Scalise said he would step aside in hopes that someone else could unite the fractious party.
“I just shared with my colleagues that I was withdrawing my name as a candidate for speaker-designee,” Mr. Scalise said. “If you look at where our conference is, there’s still work to be done. Our conference still has to come together, and it’s not there. There are still some people that have their own agendas.”
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With two wars involving our allies raging and the USG on track to run out of funding in a month, the GOP focuses on what’s important to them: THEMSELVES!
The GOP is a national disgrace and an international menace! They have brought the same disorder, callous disregard for the common good, and wacko, selfish, far right minority agenda to national politics that they have to the states they misgovern.
The GOP also also threatens America’s standing and influence on the world stage. The only thing standing between us and disaster is President Biden’s determination to lead and govern despite the GOP’s disgraceful chaos and betrayal of the common good!
And remember, it’s not like Scalise, who has coddled White Supremacists — once comparing himself to Klanster David Duke — and is a lifetime shill for a divisive far/right extremist agenda, was qualified to be Speaker. He was, at best, “slightly less unqualified” than insurrectionist election denier and Trump toady Jim Jordan!
