"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.
Kate and Leah were live from the University of Pennsylvania in Strict Scrutiny’s first live show of 2023! Penn Law Professor Jasmine E. Harris joined the hosts to recap arguments in a case that could impact disability rights. Kate and Leah recap two other arguments, in a case about immigration law and another about the ability to criminally prosecute corporations owned by foreign states. Plus, a major update about the Supreme Court’s “investigation” into who leaked the draft opinion of Dobbs last spring. And Temple University Law School Dean Rachel Rebouche joined the hosts to talk about some concerning updates in abortion access– an unfortunately commemoration of the 50th anniversary of Roe v. Wade.
• Here’s the report summarizing the Supreme Court’s investigation into who leaked the Dobbs opinion. (TLDR: they still don’t know who did it, but they tried their best? Former United States Secretary of Homeland Security Michael Chertoff said so.)
To hear the comments on our amicus brief “tune in” at 14:00 (lots of other “interesting commentary” on other cases if you listen to the entire program):
“With the highest possible human stakes,” amen, Kate!I get that, you get that, those stuck in the “purgatory of EOIR” get that! But, sadly, Biden, Harris, Garland, Mayorkas, their too often bumbling bureaucrats, and a whole bunch of Federal Judges at all levels DON’T “get” the dire human consequences and the practical impact of many of their decisions. That’s particularly true of those that give EOIR a “pass” on bad interpretations, opaque procedures, and a “super-user-unfriendly” forum that all too often defies logic and common sense! If they did “get it,” EOIR wouldn’t be the dystopian, likely unconstitutional, and life-threatening mess that it is today!
All you have to do is imagine yourself to be an unrepresented individual, who doesn’t speak English, on trial for your life in this messed up and unaccountable “court” system that holds millions of lives in its fumbling hands! Seems like a “modest ask” for those who have risen to the Federal Bench. But, for many, it’s a “bridge too far!” Let’s just hope that the Court does the “right thing” here!
Thanks to Round Table Maven Judge “Sir Jeffrey” Chase for spotting this!
The Let Freedom Ring Celebration is an annual celebration of the legacy of Dr. Martin Luther King, Jr., jointly presented by The John F. Kennedy Center for the Performing Arts and Georgetown University. Following a two-year hiatus prompted by the COVID pandemic, ‘Let Freedom Ring’ returns this weekend to the Kennedy Center Concert Hall with a stellar program headlined by Tony and Grammy winner Leslie Odom, Jr. and music produced by NEWorks Productions CEO, Nolan Williams, Jr.
The program will feature Odom performing a range of selections from the American songbook, Williams leading the Let Freedom Ring Celebration Choir and NEWorks Band, and the presentation of the 21st annual John Thompson Jr. Legacy of a Dream Award to Paula Fitzgerald, executive director of Ayuda.
Other program participants include: Naomi Eluojierior, Georgetown University student; Marc Bamuthi Joseph, VP & Artistic Director of Social Impact, The Kennedy Center; [Cheri Carter, Vice President,] Boeing (LFR Title Sponsor); and John J. DeGioia, President, Georgetown University.
Williams will present two original works as part of the program, performed by the Let Freedom Ring Celebration Choir and Band, Georgetown University student poets Cameren Evans, Isaiah Hodges, and Lucy Lawlor, and community soloists Roy Patten, Jr. and Laura Van Duzer.
The program [opened] with the world premiere of Williams’ “We’re Marching On!,” a work commissioned by Georgetown University. The piece draws inspiration from a 1965 speech by Dr. Martin Luther King, Jr. and features spoken word delivered by Evans, Hodges and Lawlor.
Williams’ second musical contribution is the social-justice-themed ballad, “We are the ones to heal our land.” Commissioned last year by Choral Arts Society and Washington Performing Arts, this work has been adapted for this occasion and will feature Patten and Van Duzer.
(Scroll below to access Williams’s song lyrics.)
The program [closed] with a stirring rendition of Dick Holler’s 1968 classic “Abraham, Martin and John.” The song pays tribute to the memory of Abraham Lincoln, Martin Luther King, Jr., John F. Kennedy, and Robert F. Kennedy, all American icons of social change who were tragically assassinated.
[Odom then brought the audience to its feet one final time with a totally awesome and inspiring encore rendition of “Ave Maria,” to piano accompaniment, in recognition of the “Christ energy” of Dr. King: A characteristic that, to paraphrase Odom’s words, “transcends individual religious beliefs or non-beliefs!”]
[I loved that in his musical selections Odom took pains to showcase the talents of, and share the spotlight with, each member of his amazing band. That shows just the type of teamwork, awareness, humility, and appreciation of those who made and make you what your are that Dr. King preached. It also reminded me of my experiences with Paula, AYUDA, and Georgetown Law (which I’ve also found to be a great team effort.)]
[Here’s an excerpt from the lyrics of Williams’s“We’re Marching On:”]
“We’re Marching On!”
Music and Lyrics by Nolan Williams, Jr.
Spoken Word by Lucy Lawlor, Cameren Evans, Nolan Williams, Jr. & Isaiah Hodges
Commissioned by Georgetown University for Let Freedom Ring 2023.
Copyright secured, NEW-J Publishing. All rights reserved.
PROLOGUE
Sometimes I find myself running,
my feet burnt and charred from the fire behind me,
my memories all caught up in coal combustion.
All I have is a body full of smoke.
I remember learning my red, white, and blues,
my Christopher Columbus sailed the ocean blue
inside an underfunded public school.
A gleeful American history lesson
that always came with a fog.
[During the concert, the stage was enveloped in machine-generated (I assume) smoke and fog to emphasize (I assume) the often ambiguous position and perspective of African Americans and other minorities in relation to the “standard — often whitewashed — version” of the “American Dream.” Does that “Dream” really look the same if your family members were denied educational, political, and economic rights, or the entire “pursuit of life, liberty, and happiness” because of their skin color? I doubt it.]
Sometimes the American dream sounds a lot like pitchforks and screams.
Haunting screams from Rosewood, Ocoee, Ponce,
all forgotten pieces of our history.
Reminding us there’s still work left to do—
that’s why we keep marching.
THE HOOK
We’re marching on
‘cause we must keep marching on.
We’re marching on
‘cause the truth is marching on.
. . . .
BRIDGE
Opposition forces
sense their voice is
quelled the more we persevere.
That’s why their raging more
And waging war
on this the last frontier
of their inhumanity,
superiority,
inequality.
That’s why we keep marchin’
. . . .
[And, here are excerpts from Williams’s “We are the ones to heal our land:”:]
“We are the ones to heal our land.”
Music and Lyrics by Nolan Williams, Jr.
Commissioned by Choral Arts Society and Washington Performing Arts.
Adapted for Let Freedom Ring 2023.
Copyright secured, NEW-J Publishing. All rights reserved.
ABOUT THE SONG…
“For most of my life, I have been deeply inspired by the scriptural verse, 2 Chronicles 7:14. If the text does not readily come to mind, here it is for your immediate reference:
If my people, who are called by my name, will humble themselves and pray and seek my face and turn from their wicked ways, then I will hear from heaven, and I will forgive their sin and will heal their land. (King James Version)
These words have long embodied for me the profound hope that God will eventually make right the many wrongs that trouble our land.
In recent years, however, I have found myself challenged by the application of this verse. Too often, it is interpreted in a way that absolves us of the responsibility of being active agents of our own healing. Too often, it justifies a passive process of waiting on God (above) to move as if we have no power within to bring about the change we seek.
With this new song, I offer a reimagining of the 2 Chronicles text to provoke and awaken our consciousness and to call us as a community to renewed action. And I do so with verses that explore four forms of justice disparities: earth, social, environmental, and economic.
As you read these lyrics and listen to the world premiere performance of this song, meditate deeply upon the meaning and application of these words.”
-Nolan Williams, Jr.
. . . .
VERSE 3
The haves get more while the rest of us survive,
doing our best to make ends meet.
And chances to advance are not the same
for the lost, the least, and all those in between.
When will the just cry, “Enough?”
When will the righteous more demand?
At such a time as this,
We need the brave to take a stand.
REFRAIN
So, we pray to us,
call ourselves by name,
humbly asking if we’ve had enough of our own pain.
Here, now, face to face,
will we turn from our own wicked ways?
Hear us now, we are the ones to heal our land.
BRIDGE
We’ve no right to pray to God then wait with no resolve
to accept the charge we have to act and get involved,
knowing God is calling us to right the wrong we’ve caused,
knowing God is calling us to right the wrong we’ve caused!
. . . .
VAMP
If not us, who?
If not now, when?
Calling me, you:
It’s time to heal our land.
It’s time to heal our land.
Watch the video of the full performance and the award presentation to Paula by Georgetown University President John G. DeGioia here. It’s a wonderful award to a terrific person and true American hero who embodies the values and determination of Dr. Martin Luther King, Jr., and John Thompson, Jr., to fight to finally make equal justice in America a reality and to make our world a better place!
Former Georgetown and Princeton Head Basketball Coach John Thompson III and the Thompson Family attended and were recognized for their continuing contributions to social justice in America and for making this great event possible. Cathy and I were honored and thrilled to be in the audience.
I was especially moved by Paula’s highlighting the successful efforts of AYUDA and other community groups to welcome and care for migrants to DC who were bussed here as part of a nativist political stunt by some governors. Certainly, it illustrates who “gets” Dr. King’s spirit, dreams, and messages of hope and who is arrogantly, and cynically, paying his memory and values “lip service,” at best!
The “video short” on the social justice impact of John Thompson & Paula (including my “Paula anecdote”) begins at 42:20:
Gratitude for dreams, learning, and our diversity.
For our country’s most noble ideals.
For science.
Appreciation for the beauty of our planet.
For the wonders of music.
For the mysteries of our consciousness.
Recognition of the persistence of injustice.
Of the struggles for so many.
Of the contagion of hate.
Indebtedness to the support of friends and family.
To the inspiration of teachers.
To all those who refuse to look away from need.
Understanding that civic engagement requires ongoing effort.
That suffering should not be accepted.
That divisions induce weakness.
Praise for the poets who help us understand life, death, and everything in between.
For those whose courage protects us.
For those who came before us determined to make the world a better place.
Blessings for the children who can fix our damaged planet.
For the helpers who provide shoulders on which to lean.
For the leaders who refuse to abandon hope.
A deep and heartfelt thankfulness to all of you who have created a community of care, support, and steadiness.
Note: If you are not already a subscriber to our Steady newsletter, please consider joining us. And we always appreciate you sharing our content with others and leaving your thoughts in the comments.
The courage, determination, skills, and humanity of migrants of all kinds who enrich our nation with their presence;
Family, friends, and colleagues;
Pets, particularly Smokey the Cat, “Dunky Dog,” his friends ( canines & humans) from the “7 AM, 711 Dog Club,” and the extended “Schmidt Family Menagerie;”
My wonderful colleagues @ The Round Table, AYUDA, Georgetown Law, and the rest of the NDPA for their tireless efforts to guarantee due process and fundamental fairness for all!
🇺🇸Happy Thanksgiving and Due Process Forever from Courtside!
The John F. Kennedy Center for the Performing Arts and Georgetown University Announce 2023 “Legacy of a Dream” Awardee
featuring
Leslie Odom, Jr.
and
THE LET FREEDOM RING CHOIR,
Nolan Williams, Jr., Music Producer
In a musical tribute to Dr. Martin Luther King Jr.
Monday, January 16, 2023 at 6 p.m.
(WASHINGTON)—The John F. Kennedy Center for the Performing Arts and Georgetown University celebrate the legacy of Dr. Martin Luther King Jr. with a free, ticketed musical tribute, the Let Freedom Ring Celebration. The annual program, part of the Center’s Millennium Stage free daily performance series, features Leslie Odom, Jr. and the Let Freedom Ring Choir led by Music Producer Nolan Williams, Jr., on Monday, January 16, 2023 at 6 p.m. in the Kennedy Center Concert Hall.
Georgetown University will present the annual John Thompson Jr. Legacy of a Dream Award to Paula Fitzgerald, executive director of Ayuda. Since 1973, Ayuda has served more than 150,000 low-income immigrants throughout Washington DC, Maryland and Virginia. The award is given by Georgetown University to a local individual who exemplifies the spirit of Dr. Martin Luther King Jr. For more information about this year’s awardee and the Legacy of a Dream Award, please visit: https://www.georgetown.edu/mlk-initiative/
Free tickets—up to two per person—will be distributed on a first-come, first-served basis at the Hall of Nations box office, beginning at 4:30 p.m. on Monday, January 16. This performance will be close-captioned and will be live streamed on the Kennedy Center Facebook and YouTube pages, and on the website at www.kennedy-center.org.
ABOUT LESLIE ODOM, JR.
Leslie Odom, Jr. is a multifaceted, award-winning vocalist, songwriter, author, and actor. With a career that spans all performance genres, he has received recognition with Tony® and Grammy Awards® as well as Emmy® and, most recently, two Academy Award® nominations for his excellence and achievements in Broadway, television, film, and music. Odom most recently starred in and performed the songs of legendary singer Sam Cooke in the critically acclaimed Amazon film adaptation of One Night in Miami…, directed by Regina King. His portrayal of the soul icon was met with widespread praise and critical acclaim, earning him nominations for an Academy Award®, BAFTA Award, Critics’ Choice Award, Golden Globe Awards®, and Screen Actors Guild Awards, among others. King also enlisted Odom to write, compose, and perform the film’s original song, “Speak Now,” for which he was nominated for an Oscar and has since earned him a Critics’ Choice Award for Best Song as well as several other award nominations.
Odom recently starred in The Many Saints of Newark, a prequel to David Chase’s Award-winning HBO series The Sopranos that was released in theaters and on HBO Max in October 2021, and he can also be heard voicing the character of ‘Owen Tillerman’ in Season 2 of the Apple TV+ animated musical-comedy series Central Park, for which he received an Emmy® nomination for Outstanding Character Voice-Over Performance in 2020. He also hosted CBS’s “The Tony Awards Present: Broadway’s Back!” special live concert event., during which he performed various musical numbers throughout the 2-hour celebration along with David Byrne, John Legend, Audra McDonald and many others. His other upcoming projects include Rian Johnson’s highly anticipated sequel, Knives Out 2; and David Gordon Green’s new Exorcist trilogy. Additional film and television credits include the Disney+ filmed musical performance of the original Broadway production of Hamilton, the limited series Love in the Time of Corona, which he executive produced and co-starred opposite Nicolette Robinson, Harriet, Murder on the Orient Express, Only, Red Tails, and Smash.
Best known for his breakout role as the original ‘Aaron Burr’ in the smash hit Broadway musical Hamilton, Odom won the Tony Award for Best Actor in a Musical and a Grammy Award ® as a principal soloist on the original cast recording for his performance. He made his Broadway debut in RENT at the age of 17. He also starred opposite Lin-Manuel Miranda and Karen Olivo in a 2014 City Center Encores! revival of Jonathan Larson’s Tick, Tick…Boom! In December 2017, Odom returned to the New York City stage in a solo concert at Jazz at Lincoln Center. The cabaret-style performance was crafted around signature songs and music that shaped this artist’s journey, all performed with a world-class band in front of a live audience. The show was filmed for broadcast as an hour-long PBS special as part of the 17-time Emmy Award®-winning series, Live from Lincoln Center, and premiered in April 2018.
A Grammy Award®-winning recording artist, Odom’s self-titled debut album was part-funded by a successful Kickstarter campaign and released in 2014 by Borderlight Entertainment, Inc. His new label home, S-Curve, re-released an expanded version with additional material in June 2016, and the album reached #1 on the Billboard Jazz charts and charted in the Billboard Top 200. In winter 2017, Odom topped the charts once again with the re-release of his second album and first holiday album, Simply Christmas, as a deluxe edition with new arrangements and new songs. Simply Christmas hit #1 on iTunes and the Billboard Jazz charts, #4 on the Billboard Holiday chart, and #31 on the Billboard Top 200 chart. Odom released his third full-length album and first of original material, Mr, in November 2019, and the following October teamed up with nine-time Grammy-nominated and multi-platinum artist Sia to debut a new version of standout track “Cold.” His critically acclaimed second holiday album, The Christmas Album, was released in November 2020. He has performed at the White House, Super Bowl, and on hallowed stages such as Lincoln Center, Rockefeller Center, and the Macy’s Thanksgiving Day Parade.
In March 2018, Odom added the title of author to his resume with the release of his book—Failing Up: How to Take Risks, Aim Higher and Never Stop Learning. Written in the style of a commencement speech, the book brings together what Odom has learned in life so far, tapping into universal themes of starting something new, following your passions, discovering your own potential, and surrounding yourself with the right people. Failing Up is about unlocking your true potential and making your dreams come true even when it seems impossible. The book was published by Feiwel & Friends, an imprint of Macmillan Publishers.
ABOUT THE AWARDEE
Paula Fitzgerald, Esq. is the executive director of Ayuda, a nonprofit that provides legal, social and language services to help low-income immigrants in the Washington, DC, area navigate the immigration and justice systems, heal from trauma and overcome language isolation.
As executive director, Fitzgerald leads Ayuda’s efforts to increase the availability of direct services for more than 8,000 immigrants annually. Under her leadership, Ayuda’s programs have expanded throughout the District of Columbia, Maryland and Virginia to reach more low-income immigrants. She began her work with Ayuda as an immigration staff attorney and quickly advanced to managing attorney of Ayuda’s Virginia office. Prior to joining Ayuda in 2008, Fitzgerald served as an immigration staff attorney at Hogar Hispano of the Catholic Charities of the Diocese of Arlington and as an associate at Hunton & Williams LLP.
Her immigration legal work focused on humanitarian relief for individuals, children and families. She also has extensive experience in family-based immigration matters, consular processing, waivers and NACARA cases. Fitzgerald credits her mother, a Colombian immigrant who was a social worker at a school with a large Latin American immigrant population, and her father, who worked as a psychologist for the mentally ill at Saint Elizabeth’s Hospital, for instilling the values that led to her work.
Fitzgerald earned a certificate in Nonprofit Management from Georgetown in 2016 and a J.D. from the University of Virginia School of Law. She graduated cum laude with a B.A. in psychology from James Madison University. Paula and her family have lived in northern Virginia for more than 40 years.
ABOUT LET FREEDOM RING CELEBRATION
As part of Georgetown University’s MLK Initiative: Let Freedom Ring!, this event builds on the success of the first joint program in January 2003, which featured the legendary Roberta Flack and attracted more than 5,000 patrons. The second, held in August of 2003, commemorated the 40th anniversary of Dr. King’s “I Have a Dream” speech and featured actor, civil rights leader, and 2004 Kennedy Center Honoree, Ossie Davis. Past concerts have featured Jessye Norman in 2004; Aaron Neville in 2005; Yolanda Adams in 2006 and in 2016; Brian McKnight in 2007; Denyce Graves in 2008; Kennedy Center Honoree Aretha Franklin in 2009; India.Arie in 2010; Patti LaBelle in 2011; Bobby McFerrin in 2012; Smokey Robinson in 2013; Dionne Warwick in 2014; Natalie Cole in 2015; Gladys Knight in 2017; Vanessa Williams in 2018; and Audra McDonald and Brian Stokes Mitchell in 2019, and Chaka Khan in 2020.
ABOUT GEORGETOWN UNIVERSITY
Established in 1789 by Archbishop John Carroll, Georgetown is the oldest Catholic and Jesuit university in the United States. Located in Washington D.C., Doha, Qatar, and around the world, Georgetown University is a leading academic and research institution, offering a unique educational experience that prepares the next generation of global citizens to lead and make a difference in the world. For more information about Georgetown University, visit Georgetown.edu or connect with Georgetown on Facebook, Twitter, LinkedIn, or Instagram.
Georgetown’s annual MLK Initiative honors Dr. Martin Luther King Jr. through a series of academic, artistic, and extracurricular programs that examine Dr. King’s life and work and address the contemporary challenges our nation faces in order to fulfill his dream of justice and equality for all people. For more information visit: https://www.georgetown.edu/mlk-initiative/
ABOUT THE KENNEDY CENTER’S MILLENNIUM STAGE
Millennium Stage is a manifestation of the Kennedy Center’s mission and vision to welcome all to celebrate our collective cultural heritage in the most inclusive and accessible way possible. Millennium Stage offers free live community performances, streamed live Wednesday–Saturday each week and Sunday matinee film screenings in the Justice Forum.
The series aims to eliminate financial and geographical barriers to the arts and celebrate the human spirits and arts in our society, hopefully, ultimately leading to intercultural understanding. The programs are varied with artists from many different communities and mediums of performing arts so that we are showcasing the story of our country and our world.
A full list of our generous sponsors can be found online.
“I am humbled to be selected as the 2023 Legacy of a Dream recipient. My mission has always been to make a lasting impact in the lives of others. I can think of no greater honor than being recognized alongside past recipients – fierce advocates and change-makers in our DMV community.”
— Paula Fitzgerald, Esq.
Executive Director, Ayuda
**************************
Congratulations Paula, my friend!
As I have said many times, “you are totally awesome.” Your brilliance, creativity, “institutionalized kindness,” courage, integrity, work ethic, and leadership by example have built AYUDA into an ever more powerful and dynamic NGO that incorporates all that is best in the DMV area. AYUDA serves as a beacon of hope, humanity, and “grass roots support” for members of our community from around the world.
You empower and inspire everyone around you, which is what great leadership is all about. You are also “one heck of a fundraiser and executive with a vision and the practical skills to make it happen!” And, you continue to recruit, attract, support, and nurture super-talented staff who embody and carry out AYUDA’s community values!
I remember a function honoring the retiring chief executive of an organization I worked for in the past. That individual was highly competent, but not particularly “warm and fuzzy.” The MC, perhaps at a loss for words, turned to the honoree and said: “You were a great fiduciary!”
Being a “vet” of countless retirement ceremonies, I had expected the more traditional good natured “roast” or heartwarming personal anecdotes. At the time, I found the “fiduciary accolade” pretty weird.
Since then, however, carrying that “heightened awareness” with me, I have observed many “not so great fiduciaries.” So, Paula, I’m going to say it: “You are a great fiduciary!”
AYUDA’s many dedicated donors can be assured that you treat each incoming dollar the way you treat each of AYUDA’s clients and staff: With great appreciation, deep respect, and a determination to unlock the full potential for the greater good.
Thanks for all you do for America and humanity, Paula! You indeed “exemplify the spirit of Dr. King!”
FULL DISCLOSURE: I am a member of the AYUDA Advisory Council and an Adjunct Professor at Georgetown Law. I have known Paula and admiredher work and values since she first appeared before me as an attorney at the “Legacy” Arlington Immigration Court almost two decades ago.
This brief presents amici’s practical perspective on why the Immigration and Nationality Act’s provision for removal based on a conviction for a “crime involving moral turpitude” is void for vagueness. Section 1227(a)(2)(A) combines the imprecision of the phrase “moral turpitude” with the indeterminacy of applying that phrase to a hypothetical set of facts
1 Counsel of record for all parties received notice of amici’s intent to file this brief at least ten days before its due date. The parties have consented to this filing. No counsel for a party authored this brief in whole or in part, and no person other than amici or their counsel made a monetary contribution to the preparation or submission of this brief.
2
under the categorical approach. The result is a provision so vague that adjudicators cannot agree on how to conduct the inquiry and frequently reach inconsistent results.
The Act charges immigration judges with determining which crimes involve “moral turpitude.” Though the statute provides no definition, in 1951, this Court held that the “language conveys sufficiently definite warning as to the proscribed conduct.” Jordan v. De George, 341 U.S. 223, 231-32 (1951). But time has disproved that understanding. The usual “consistency [that] can be expected to emerge with the accretion of case law,” S.E.R.L. v. Att’y Gen., 894 F.3d 535, 550 (3d Cir. 2018), has not materialized. Indeed, the typical sources of clarity—the Board of Immigration Appeals and the courts of appeals—have produced more questions than answers. Whose morals matter? How should judges discern what those morals are? What course should judges follow when moral views conflict? How do they account for changes in views over time? Immigration judges have no way to know. And the uncertainty that the statute’s vague words create left amici with no guide except their own moral intuitions.
To this ambiguity, add that, under the categorical approach, immigration judges do not evaluate the actual conduct engaged in by the noncitizen before them. Instead, they must assess the moral implications of a theoretical set of facts—the “least culpable” means of committing the crime in question. The hypothetical nature of this mode of analysis exacerbates the underlying vagueness of the statutory phrase “crime involving moral turpitude.”
3
Recently, this Court has struck down statutory provisions that suffered from analogous uncertainty, holding each unconstitutionally vague. See Johnson v. United States, 576 U.S. 591 (2015); Sessions v. Dimaya, 138 S. Ct. 1204 (2018); United States v. Davis, 139 S. Ct. 2319 (2019). Section 1227(a)(2)(A) should suffer the same fate.
The real-world effects of Section 1227(a)(2)(A)’s vagueness confirm this conclusion. Attempts to curtail the provision’s arbitrariness by articulating standards have failed. The Board and the courts of appeals have repeatedly but unsuccessfully tried to craft a workable set of rules for identifying which crimes involve moral turpitude. Their efforts have instead produced a series of non-dispositive, ad hoc tests that generate inconsistent and arbitrary results. Confusion abounds in immigration courts and in Article III courts alike, with widespread disagreement over whether a given crime involves moral turpitude. Among other unexplainable outcomes, the courts of appeals part ways on whether crimes such as making a terroristic threat or deceptively using a social security number involve moral turpitude. Amici were required to sort through this morass, unsure of which of the growing list of ad hoc tests applied or how to deal with the conflicting results. Their experiences confirm that the phrase “moral turpitude” is too vague to govern the “particularly severe ‘penalty’” of removal. Padilla v. Kentucky, 559 U.S. 356, 365 (2010) (quoting Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893)).
For these reasons, this Court should grant review and reverse.
For over 70 years, Federal Judges from the Supremes on down have turned a “blind eye” to our Constitution and substituted their subjective views on morality and immigrants for the rule of law. Our Round Table says it’s high time to stop! ⚔️🛡
Thanks again to the superstars Esthena L. Barlow, Brian Wolfman, Counsel of Record Madeline Meth, and the rest of the “Youth Brigade of the NDPA” over @ Georgetown Law!
Here’s the abstract of the latest “practical scholarship” from the RR3:Professors Phil Schrag, Andy Schoenholtz, and Jaya Ramji-Nogles, “The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem,” which will appear in the Howard Law Journal:
The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem
In 2022, the Biden administration implemented what the New York Times has described as potentially “the most sweeping change to the asylum process in a quarter-century.” This new adjudication system creates unrealistically short deadlines for asylum seekers who arrive over the southern border, the vast majority of whom are people of color. Rather than providing a fair opportunity for those seeking safety to explain and corroborate their persecution claims, the new system imposes unreasonably speedy time frames to enable swift adjudications. Asylum seekers must obtain representation very quickly even though the government does not fund counsel and not enough lawyers offer free or low-cost representation. Moreover, the immigration statute requires that asylum seekers must corroborate their claims with extrinsic evidence if the adjudicator thinks that such evidence is available – a nearly impossible task in the time frames provided by the new rule. As a result, the new rule clashes with every state’s Rules of Professional Conduct 1.1 and 1.3, imposing duties of competence and diligence in every case that a lawyer undertakes. It will be extremely difficult for lawyers to provide competent and diligent representation under the new, excessively short deadlines. For immigration lawyers, the new rule exacerbates a challenge that they share with public defenders and other lawyers working within dysfunctional systems: how to provide even the most basic level of procedural due process for their clients, most of whom are people of color.
This article begins by describing the regular asylum process. It then summarizes the history of expedited removal, a screening system that limits access to that process for asylum seekers who arrive at the southern U.S. border without visas. It then explains and assesses the Biden administration’s first and second versions of the new asylum rule, highlighting the major flaw that will make the current version an unfairly formidable hurdle for asylum seekers subject to it. The article concludes by setting out a way for the Biden administration to create a more fair, accurate and efficient border asylum adjudication system and ensure that the U.S. can comply with domestic and international refugee law.
Keywords: Asylum, Asylum adjudication, Asylum process, Expedited removal, Immigration, Legal ethics, Due process, Administrative law
JEL Classification: K39
Suggested Citation:
Schrag, Philip G. and Ramji-Nogales, Jaya and Schoenholtz, Andrew I., The New Border Asylum Adjudication System: Speed, Fairness, and the Representation Problem (September 29, 2022). Howard Law Journal, Vol. 66, No. 3, 2023, Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4233655
*********************
You can download the complete article from SSRN at the above link.
Expect the Biden Administration to “blow off” the suggestions for improvement at the end of the article. They seem to glory in “tuning out” the views of practical experts who know how to fix the broken asylum adjudication system.
As I predicted when these regulations first came out, they were “programmed for failure.”
Due-process-denying, representation-killing, arbitrary time limits imposed from above have been tried by Administration after Administration. They have always failed and will continue to do so. So, why are they a key part of the Administration’s so-called “reforms?”
Compare the article’s discussion of the importance of representation and the practical and ethical problems caused by the new regulations with the reality of the “nutsos” ways EOIR is mis-treating attorneys currently trying to practice before the Immigration Courts!
Additionally, the unwarranted, yet largely self-fulfilling assumption by the Biden Administration that only 15% of asylum applications would be granted at the “Asylum Office stage” show why this program was designed to fail by the wrong officials. For the system to meaningfully address the Immigration Court asylum backlog, the grant rate would have to be multiples of that — probably at least 50%.
That’s a realistic projection, given the well-documented, atrocious human rights conditions in most “sending countries” and the current artificial limitations on grants imposed by bad precedents and flawed, biased, or incompetent adjudications. When I was at the Arlington Immigration Court from 2003-16, a significant majority of the “referrals” from the Asylum Office were granted asylum, withholding of removal, or CAT protection, often with concurrence or only token opposition by ICE. That suggests that there is a huge unrealized potential for many more timely asylum grants at the Asylum Office. But, success will never be achieved with the current “anti-asylum, afraid to correctly and fairly implement refugee law gang” in charge — committed to retaining the bad attitudes and repeating the mistakes of the past!
Hanging over the whole disaster is the “uncomfortable truth” that I’ve been shouting:
The Biden Administration is still operating EOIR and large portions of the immigration bureaucracy at DHS with Trump-era “holdovers” who were improperly “programmed to deny” asylum.
There is a dearth of positive precedents from the BIA on gender-based asylum and other types of common asylum applications at the border that are routinely and wrongfully mishandled and denied.
There are cosmic problems resulting from failure to provide qualified representation of asylum seekers at the border.
Detention continues to be misused as a “deterrent” to legal claims and “punishment” for assertingthem.
Despite “touting” a much larger refugee admissions program beyond the border, the Administration has failed to deliver a robust, realistic, refugee admissions program for Latin America and the Caribbean which would take pressure off the border.
Racism and White Nationalism continue to drive the Administration’s dramatically inconsistent approach to White refugees from Ukraine compared with refugees of color at the Southern Border.
Indeed, this entire “reform effort” is essentially “upside down.” It’s a “designed to fail” attempt to avoid the broken and malfunctioning Immigration Court system without dealing with the REAL problem: EOIR!
Without the necessary progressive personnel and structural reforms at Garland’s EOIR (“clean house” of unqualified, under-qualified, or misplaced administrators and judges from past Administrations), the cultural changes (“out with the anti-asylum, anti-immigrant, racially challenged, too often misogynistic, EOIR culture”) it would bring, and most of all, the substantive changes to align asylum law with due process, best practices, and the generous interpretations that were foreshadowed by the Refugee Act of 1`980 but have been intentionally suppressed by politicos of both parties, there will be neither justice nor stability in our asylum and immigration systems, nor will there be equal justice for all, including racial justice, in America!
Even my esteemed “RR3” friends understate the debilitating effects of the ever-worsening dysfunction at EOIR and Garland’s failure of leadership on due process and human rights!
Perhaps the most telling statement in their article is this: “Asylum officers are more highly trained in asylum adjudication than immigration judges . . . .”Why, on earth, would that be?
Why isn’t the BIA led and comprised of internationally-respected asylum experts like Schrag, Schoenholtz, Ramji-Nogales, and others like them? Why aren’t all Immigration Judges drawn from the ranks of universally-respected “practical scholars” in asylum and human rights?Plenty of them are out here! Why aren’t they on the bench? Why is the Biden Administration running a “D-Team Judiciary” at EOIR rather than “the world’s best administrative tribunals, guaranteeing fairness and due process for all” as EOIR was once envisioned? What’s the excuse for lousy training at EOIR when top-flight “modulated” asylum training is available from expert sources like Professor Michele Pistone’s innovative VIISTA Villanova program? What’s the excuse for the colossal EOIR failure that threatens lives and our democracy on a daily basis? Why aren’t alarm bells going off at the White House about Garland’s failed stewardship at EOIR?
Reforming the asylum system, starting with EOIR, could also potentially have big societal and economic benefits for America. Asylees gain legal status, can work, get in line for green cards, eventually become citizens, and realize their full potential as productive members of our society. Not incidentally, they also become regular taxpayers and can help bolster essential enterprises and infrastructure improvements.
For example, just yesterday the Portland (ME) Press Herald featured an article about the critical, chronic shortage of workers in Maine. https://www.pressherald.com/2022/10/02/how-can-maine-solve-its-workforce-crisis/ Why isn’t the Biden Administration working with Maine authorities, NGOs, and economic development groups to “fast track” asylum approvals for those who might be persuaded to resettle in Maine to take advantage of these economic opportunities, for everyone’s benefit? Mainers also are suffering from a shortage of affordable housing. I’ll bet that with a little “seed money,” there are enterprising, skilled groups of potential asylees who could help build and maintain affordable housing for communities in need, in Maine and elsewhere in the U.S. Why are they instead “rotting at the border” or being aimlessly “orbited” around America by nativist GOP governors trying to score political points with their White Nationalist base?
By adopting the nativists’ dehumanizing mis-characterization of asylum seekers as a “problem” to be measured in “numbers,” deterred, and held at bay, the Administration is missing a golden opportunity to achieve some much-needed “win-wins.” Why run bone-headed “built to fail, haste makes waste” asylum pilot programs in a few cities rather than trying things that might work to everyone’s advantage, as I have described above?
At a time when many in America are finally learning the truth about our disgraceful failure to offer refuge to Jews during the period leading up to the Holocaust from the Ken Burns documentary, we (our at least some Americans) appear to be committed to making the same mistakes again. We should not undervalue the lives and contributions of refugees because of systemic or structural boas against certain groups!
Claiming to “reform” the U.S. refugee and asylum system without dealing with the ongoing, worsening, disasterous dysfunction at EOIR is a fool’s errand. The way to make the system work more efficiently is to grant the large number of deserving asylum cases in a timely, practical, manner driven by due process, best practices, and best interpretations of asylum law. Unless and until those in charge act on this truth, the awful mess at EOIR will continue to be an existential threat to democracy!
With November’s midterm elections just around the corner, immigration will (again) become a hot national topic. Is immigration really as controversial as America’s politicians want us to believe? In this month’s issue, we explore the question: “Do Americans Support Immigrants?”.
Official immigrants account for 14 percent (40 million people) of the US population, making them an integral part of American society. Immigrants have always been part of the American identity, contributing to the economy, creating employment, and molding America’s unique culture. After all, unless you’re native American, you or your family came from somewhere.
This month, we speak to Nazanin Ash, CEO of Welcome.US, an incredible new national initiative built to inspire, mobilize, and empower Americans from all corners to welcome and support those seeking refuge. We also spoke with people on the street to understand how real Americans think and feel about welcoming immigrants.
Hope you gain new insights,
Téa
Here’s the link to Téa’s latest great video, “Téa’s Coffee presents:Are Americans Welcoming Immigrants?”
Get to know “Courtside’s NDPA Hero of the Day, Téa Ivanovic!”
An immigrant herself, social justice dynamo Téa Ivanovic came roaring out of Virginia Tech only eight years ago and hasn’t looked back! No time for anything but moving forward and taking on new challenges!
The former Hokie D-1 tennis player is busy leading, innovating, and using her amazingly broad liberal arts skill set to serve our DMV area and make America better!
She’s a successful businesswoman, media presence, organizer, advocate, historian, ethicist, humanitarian, innovator, journalist, educator, practical scholar, foodie, sportswoman, financial manager, and all around cheerleader for the immigrant community of which she is a part! As you might expect, her omnipresent passion for life and community is tempered by a sense of humor, perspective, and self-awareness.
Tellingly, the themes for the Immigrant Food website and for their logo run heavily to “burnt orange and maroon” undoubtedly a product of her “Hokie heritage.”
Téa’s a promotional icon for another one of my “crusades” — recognizing and nurturing the enduring value of liberal arts education in America.
That’s NOT the BS, “whitewashed” (in more ways than one) version of education promoted and foisted upon us by the far right and its highly motivated yet badly misguided acolytes, but rather the “real deal.” Honesty about our past, knowledge, applied scholarship, versatility, flexibility, communication, reasoning, debating, critical dialogue, problem solving, business acumen, financial skills, multiculturalism, language skills, agriculture (Tech is Virginia’s “land grant” college), moral courage, sports, scientific and environmental truth, leadership, compassion, creativity, artistry, humane values in action — Téa’s got all of this going on!Folks, she’s the “complete package” – a one-woman “Liberal Artists’ Dream Team.”
Let’s start with first impressions. Clearly a powerful intellect — summa cum laude, Phi Beta Kappa, ACC All-Academic— Téa radiates energy, competence, creativity, personality, kindness, infectious enthusiasm, good humor. Some of it undoubtedly stems from her Hokie varsity tennis days where she also honed her competitiveness, sportsmanship, and performance skills. But, as I’m sure she did on the tennis court, Téa plays hard, to win, but respects the rules of the game.
How dynamic, talented, and committed is Téa? Here’s the “lede” on her “official Immigrant Foods bio:”
Téa started as the hyper-talented head of communications for Immigrant Food, but as the pandemic took its toll, it became clear that she had to become Jack of all Trades. So she took on management. And then took on operations. And then took on financial responsibility. So, she became the COO.
In other words, Téa awoke one day and decided “the best way I can help my organization and my team is by taking on the additional responsibility of Chief Operating Officer.” So she did it! No waffling or second thoughts about whether someone less than a decade out of college could pull off this stressful, yet rewarding, “high wire act!”
Somewhere along the trip from Blacksburg to DC, Téa picked up a M.A. at Johns Hopkins’ School of Advanced International Studies (SAIS). Born in Belgium, the daughter of former Yugoslavians, she’s fluent in English, Flemish, and Serbian. Téa describes herself as “an immigrant squared” (quite different from a “square immigrant,” which she certainly isn’t).
The first Washington correspondent for Bosnia and Herzogevina’s leading newspaper, Téa has worked at think tanks, written for various online publications, and been a researcher and fellow. She’s lived a lifetime, accomplished great things, undertaken new challenges, and helped lead the charge to blow away the myths and achieve social and legal justice for migrants and everyone else in America. Hers is a life already laser focused on her larger community, making the world better, and helping others!
Folks, Téa’s 30th birthday is still on the horizon! Her “full due process potential” is breathtaking, inspiring, encouraging, and reassuring (particularly for those of us “on the bell lap” of life’s journey, concerned for American’s future)!
Téa is confident, not arrogant or imperious. She’s just as comfortable interviewing some of the “movers and shakers” of the DC area about profound national issues as she is connecting with a recent immigrant working in a bistro about their American experience. And, despite her obvious love of the kitchen, I’m sure the immigrant Food books aren’t “cooked” with Téa as COO!
You can keep up with Téa and her talented band of social justice/good food brothers and sisters by subscribing to Immigrant Food (“IF”) here:https://immigrantfood.com/.
Like “Courtside,” it’s free — making it one of the best bargains in a town not necessarily known for them!
In addition to connecting you with some great local immigrant cuisine, IF also highlights local events and ways to connect with immigrants in the community.
For example, each week, the “IF Team” shows you five ways to engage with the immigrant community. It might be through a donation, volunteering, or educating yourself about immigrant issues (Téa’s above video is a terrific example).
There are so many ways you can make a difference! This week’s “Engagement Menu,”features volunteering, donating, and educational opportunities, like supporting the Afghan Adjustment Act! Something good is always “cooking in the kitchen” at IF! Téa Calls it “gastroadvocacy!” What a great concept!
Additionally, IF has partnered with five amazing immigrant justice NGOs in the DMV area: AsylumWorks, AYUDA, CAIR Coalition, APALRC, and CARECEN. Imagine having the expertise, kinetic energy, and social justice firepower of giants like Paula Fitzgerald (AYUDA), Joan Hodges Wu (AsylumWorks), Adina Appelbaum (CAIR Coalition, one of my “best ever” Georgetown Law “Refugee Law & Policy” alums), Laura Trask (AYUDA), Téa, and other immigrants’ rights advocates from these venerable organizations on your side. Truly, a “Social Justice Dream Team.”
As my Georgetown Law students know, I’m always “preaching”about the “big five life values” — fairness, scholarship, timeliness, respect, and teamwork. Téa, and her equally spectacular colleagues at IF embody all of those. They inspire, energize, and show us how the “new generation” of the NDPA can make an immediate impact in the never-ending battle for social justice in America and help forge a better world.
Maybe it’s time to take “gastroadvocacy” to the next level: a nationwide network — call it the “Social Justice Food Network” (“SJFN”).
Get a YouTube channel! Create an app! Folks can hook up their mobile phones and “eat their way from coast to coast” while promoting unity and equal justice for all!
As somebody who still loves the “American road trip,” the idea of hitting the next roadside eatery where we can get good food (some vegan entrees, please), meet great immigrants, and chat with local folks about social justice is hyper-appealing! Outdoor seating and/or carryout for those of us traveling with our dogs would also be a huge plus!
Téa, thanks again from all your NDPA colleagues and friends for all you do! I hope that this “mini-profile” will inspire others to get to know you, either online or in person, and join your fight for a better America — one where the unfulfilled promise of “equal justice for all” will finally become a reality!
One thing’s for certain. Téa’s time on the front lines of the fight for social justice is just getting started. I can’t wait to find out what she has up her sleeve next! Whatever it is, I know that it will be creative, energetic, and dedicated to helping others.
There is no mountain that Téa and her team can’t climb. I’m just grateful that she and others like her have chosen to “throw in their lot” with the NDPA! Hats off to you, Téa, and other immigrants, past, present, and future, who “make” our nation!
If, indeed, “we are what we eat,” I encourage everyone to order up an extra big helping of social justice at Immigrant Food!
To close this circle, I started out to write a profile of my friend and NDPA colleague, Téa. By the time I finished, I had connected all kinds of dots from my own life (e.g., my dad was a physician at the student health center at Tech before Téa was born, and remained an avid Hokie fan till the end), my relationships with other NDPA colleagues, former students, NGOs that played a role in my life on and off the bench, public service, “gonzo journalism,” vegan eating, road trips, dogs, the future fight for social justice, and “the heart and soul of America.” That’s what makes the enlightened leadership of folks like Téa so special and generates optimism for a better, more just and unified, America for the future.
In 2015, a Ghanaian man who goes by the initials M.A. and his gay friend were brutally assaulted by a vigilante group in Accra, Ghana. In Ghana, homosexuality is illegal and carries a prison sentence of up to three years. M.A. was beaten with sticks before escaping through a window. His friend was killed. Fearing the group would find and kill him, he fled to Ecuador and made his way to the U.S. border, where he requested asylum. After being detained for nine months, he was released on bond and lived with a childhood friend in New York while he waited for his case to make it through the legal system.
M.A. clearly faced persecution, but an immigration judge denied his claim. I took M.A.’s appeal to the Board of Immigration Appeals in 2016 as part of the Cornell Law School’s asylum appeals clinic. It took M.A. four years to win asylum in America, but at least he was given the chance to apply in the first place.
Since March 2020, approximately 900,000 people — including over 215,000 parents and children — have been denied the ability to request asylum at all. They’re casualties of Title 42, a pandemic-related policy that paused nearly all asylum proceedings at the border. Some people argue the policy is preventing an influx of migrants. In fact, numbers are up despite the policy, and our refusal to process most of them has led to chaotic and dangerous conditions.
The United States has successfully managed ebbs and flows of asylum seekers for decades. There’s a system in place to manage an influx — and regardless of how hard immigration lawyers like me fight for them to stay, many will lose their case and be deported. Even so, we must let people try. It’s not only the right thing to do, it’s also guaranteed under international and domestic law. We signed a 1967 protocol to the U.N. Refugee Convention to protect the rights of refugees, and we have adopted it and codified it into U.S. asylum law. Right now, we’re violating those obligations. The longer we do, the weaker American rule of law looks to our global partners.
We must immediately reinstate due process for asylum seekers. And once this happens, we must work to make the system more equitable and faster.
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Read Steve’s complete op-ed in The Hill at the link.
I agree that “we must work to make the system more equitable and faster.” But, the answer can’t be just to hire more Immigration Judges in Garland’s dysfunctional, broken, and anti-asylum-biased “court” system. That would just speed the “deportation assembly line” and lead to even more injustice and grotesque inconsistencies.
According to TRAC, Immigration Judge “asylum denial rates” currently “range” from 5% to 100%. That’s a ridiculous, indefensible variation and a total perversion of the generous standard for granting asylum set forth by the Supremes in Cardoza-Fonseca and adopted by the BIA in Matter of Mogharrabi, but seldom enforced or followed, particularly these days.Why this very obvious, totally solvable problem is still festering going on two years into a Democratic Administration that pledged to solve it is beyond me!
Enough of this nonsense, biased, “amateur night at the Bijou” mal-administration of the Immigration Courts at EOIR by Garland’s DOJ! No wonder folks are still complaining about “Refugee Roulette” more than a decade after it was written by my Georgetown Law colleagues Professors Phil Schrag, Andy Schoenholtz, and Jaya Ramji-Nogales (now an Associate Dean at Temple Law). Why not put one of THEM, or for that matter, Professor Yale-Loehr, in charge of kicking tail and cleaning out the deadwood at EOIR?
At a minimum Garland must:
Remove the holdover “Asylum Deniers Club” from the BIA and replace them with a real judge as Chair and new Appellate Immigration Judges who are widely recognized as “practical experts” with careers that have demonstrated superior scholarship in immigraton and human rights, an unswerving commitment to due process for individuals, and a passion for racial justice in our legal system;
Have the “New BIA” issue useful precedential guidance on how to document and grant valid asylum cases at both the Asylum Office and the Immigration Court, implement best practices, and identify and remove from future asylum adjudication those unqualified Immigration Judges who basically “make up” reasons to deny and can’t or won’t treat applicants fairly; and
Immediately replace with qualified expert judges those Immigration Judges on the “Southern Border docket” who can’t fairly adjudicate asylum cases.
Steve is totally correct about the need for Title 42 to go! But, Garland’s EOIR, particularly the BIA, is just as broken, counterproductive, and out of control as Title 42! In many ways, the illegal abrogation of the rule of law at the Southern Border has somewhat ”hidden” the larger problem that a dysfunctional and incapable EOIR poses for those who do manage to get a hearing!
Without a legitimate, totally reformed and significantly “re-populated” EOIR operating at the “retail level” of our justice system, there will be no rule of law and equal justice under law in America — for anyone!
Tell Garland you have had enough! The deadly and disorderly “EOIR Clown Show” has got to go! Now!
Biden’s ‘Summit of the Americas’ commitments on immigration more show than substance
Nolan Rappaport, opinion contributor
Former President Bill Clinton established the Summit of the Americas in 1994, to bring all of the countries in the Western Hemisphere — except Cuba — together for discussions on trade, immigration, and democracy. President Joe Biden hosted the event this year.
The participants recorded their immigration agreements in the Los Angeles Declaration on Migration and Protection. It represents a regional partnership to address historic migration flows affecting most of the countries in the region.
The declaration was signed by 20 countries in the region that are committed to protecting the safety and dignity of all migrants, refugees, and asylum seekers, and respecting their human rights and fundamental freedoms. They intend to cooperate to facilitate safe, orderly, humane, and regular migration, consistent with national legislation, the principle of non-refoulement, and their respective obligations under international law.
But will they keep their commitments?
The last line in the declaration acknowledges that its commitments are not legally binding.
Yael Schacher, deputy director of Refugees International, says, “summits have traditionally been a parade of promises that are never fulfilled.”
According to Georgetown Law immigration professor, Paul Schmidt, the declaration is just “more empty rhetoric.”
Highlights
International financial assistance may be needed by the countries the migrants come from and the countries that host large numbers of them after they have left their own countries.
A fact sheet summarizes financial contribution commitments. For instance, the United States commits to making a contribution of an additional $25 million to the Global Concessional Financing Facility, which assists Latin American countries with programs for providing refuge to displaced migrant and refugee populations.
The United States also commits to contributing $314 million in additional funding for humanitarian and development assistance for refugees and other vulnerable migrants.
The United States will establish a $65 million pilot program to support U.S. farmers hiring temporary agricultural workers under the H-2A program.
And the United States commits to expanding its efforts to address the root causes of irregular migration throughout the hemisphere. The Biden administration previously had proposed allocating $4 billion to Central America over four years, including $860.6 million in fiscal 2022.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at https://www.blogger.com/blog/posts/2306123393080132994
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Head on over to The Hill to read Nolan’s full article. Internet “hits” help keep him in business!
Always a pleasure to be quoted along with my friend and super-scholar Yael Schacher — a trained historian/archivist in possession of what’s left of the “Schmidt archives!” (Yael stopped me several boxes into my project of using them to fuel our back-yard fire pit. But, Yael’s timely intervention still helped me fulfill my “promise upon retirement” to Cathy to get my boxes of papers out of the attic, basement, and garage. Also, after recently serving as an executor for my cousin, I’m sure our children will be grateful.)
“Petition for review of a decision of the Board of Immigration Appeals entered December 14, 2018, dismissing an appeal from the decision of an Immigration Judge denying asylum and the withholding of removal to petitioners, who are dual citizens of Honduras and Nicaragua, and their relatives. The agency denied relief based on Matter of B-R-, where the BIA held that to qualify as a “refugee” under the Immigration and Nationality Act, dual nationals must show persecution in both their countries of nationality. 26 I. & N. Dec. 119, 121 (B.I.A. 2013). The agency determined that while petitioners demonstrated persecution in Honduras, they did not show persecution in Nicaragua, and it concluded that they were not refugees and therefore not eligible for asylum. We grant the petition for review and hold that, to qualify as a “refugee” under the INA, a dual national asylum applicant need only show persecution in any singular country of nationality. PETITION GRANTED, BIA DECISION VACATED, AND CASE REMANDED. … We hold that to be considered a “refugee” under § 1101(a)(42)(A), a dual national need only show persecution in any singular country of nationality. Accordingly, we GRANT the petition for review, VACATE the BIA’s December 14, 2018, decision, and REMAND to the BIA for further proceedings in accordance with the proper legal standard. … [T]he INA unambiguously requires an applicant for asylum to show well-founded fear of persecution in any one country of the applicant’s nationality rather than in all such countries. … As the statutory text unambiguously provides that dual nationals need show persecution only in any singular country of nationality to qualify as a refugee under the INA, we need not defer to the BIA’s interpretation of § 1101(a)(42)(A). In any event, the BIA’s interpretation is unreasonable; Matter of B-R- required dual nationals to show well-founded fear of persecution in both countries of nationality. 26 I. & N. Dec. at 121. Such a reading is manifestly contrary to the text of the INA.”
I once used a similar fact situation as a final exam question in my “Refugee Law & Policy” class at Georgetown Law. It tested whether students could spot and develop a possible “Chevron challenge” to Matter of B-R-! I’m going to give the 2d Circuit an “A” on this one! The BIA gets an “F.”
Prior to B-R-, I had one of these cases in Arlington. I granted based on the plain meaning of the statute. I think the DHS waived appeal.
Bad law/bad policy/bad judging. In Matter of B-R-, the BIA stretched and ignored the statute to find a way to deny asylum to a journalist threatened by the Chavez Government of Venezuela — no “friend” of the U.S! He had little apparent contact with Spain, of which the IJ found he was a dual national, other than that his father was born there.
The respondents in Zepeda-Lopez were found to have suffered persecution in Honduras. They were ordered removed to Nicaragua, a country with a horrible human rights record and whose government has been condemned by the U.S.
Why would a competent BIA ignore the statutory language and misinterpret the law to achieve such highly problematic (one might argue downright dumb) results when a better, legally correct interpretation — merely following the statute (not “rocket science” 🚀) — would have produced more sensible results?
One possible conclusion: The BIA is “preprogrammed” to consider “denial of protection” under a statute designed for protection as the “preferred result.” Consequently, they will manipulate and misconstrue the law (and sometimes facts) to achieve removals that make neither legal nor policy sense.
With lots of better qualified, fair asylum experts out there who could be BIA judges, why is Garland employing the “B-Team” (at best) mostly selected by his predecessors, in these important, non-life-tenured quasi-judicial positions?
America needs a fair, functional, generous, realistic, practicalasylum system. It’s not achievable without a massive and much needed shakeup at the BIA and the trial courts at EOIR!
Bad judging, from the bottom to the very top of our justice system, by those disconnected from both the law and the human consequences of their lousy decisions, is helping to rip our nation apart. Garland has a golden opportunity to fix the “retail level” of our judiciary at EOIR. Why isn’t he getting the job done? Can our nation live with the consequences of his failure?
Here’s another remand you might like to read. This time it was Nexus and PSG with IJ Monique Harris (previously in Houston). According to TRAC she has a 96.5 asylum denial rate. The prior remand I shared was IJ Khan who is at 97% denial rate. Clearly these IJs are getting a lot of “matter of life and death” decisions wrong. As you say, haste makes waste. This case (like the previous one) should have been easy grants with all of the supporting documents that were included. I appeared at the individual hearing and my colleague Bryan Russell Terhune (from the same office) worked on the BIA Brief.
P.S. you can see this news article: https://sv.usembassy.gov/court-inaugurated-memory-pnc-agent/ , from our own U.S. Embassy in El Salvador where they inaugurated an athletic court in the Usulutan Police Delegation, named after the PNC officer Nelson Panameño, who was killed. Panameño was one of the instructors from the Gang Resistance Education and Training Program (GREAT) which my client closely worked with for many years helping him and the PNC gain trust with the community and local youth. This was part of the record, plus a lot more evidence showing this specific connection and the specific and imminent warnings that Panameno gave to my client before his own murder. This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.
This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.
That this respondent is here to contribute to our country is due to Roberto and his colleagues in the Law Office of Juan Reyes, Houston, and to this particular panel of BIA Appellate Judges. But it is “no thanks” to the IJ who got this case egregiously wrong below!
Nor, is it thanks to an Attorney General who has allowed injustice, bad judgment, and poor quality decision-making to flourish at the “retail level” of his wholly-owned “court” system. What about the many folks who don’t have Roberto or someone like him for a lawyer or who get members of the “BIA asylum deniers club” appointed under Trump to “pack the BIA for an anti-asylum agenda” instead of this panel of conscientious appellate judges?
I note that Judge Elise Manuel and Judge Denise Brown are currently denominated “Temporary” Appellate Judges. At least in this case, along with Judge Ellen Liebowitz, they “got it” at a level at odds with the work of too many of their so-called “permanent” colleagues. Why has Garland allowed this obviously problematic situation to continue to fester with human lives at stake?
Judge Ellen Liebowitz’s compact, cogent, powerful opinion is a terrific “mini-primer” on how PSG and “one central reason” nexus cases properly should be decided! As Judge Liebowitz demonstrates, you don’t have to write a lot to say a lot. You just have to know what you’re doing!
The gross, fundamental errors in the application of basic statutory terms by the IJ below in this case are, unfortunately, repeated on a regular basis by many of her colleagues across America who are improperly “programmed to deny” clearly grantable asylum cases.
It belies the bogus claim that EOIR is an “expert subject matter tribunal!” That expertise is, at least in part, what the questionable doctrines of “Chevron deference” and “Brand X abdication” by the Supremes rest upon. Shouldn’t it make a difference that in EOIR’s case, it’s a lie?
Why is Garland allowing this to happen when it could be remedied? Make this case a precedent and start removing, retraining, or reassigning so-called “judges” who don’t follow it and who continue to disregard the law and the rights of asylum seekers!
Why isn’t this case a precedent? Why is an IJ who is so clearly unqualified to decide asylum cases still on the Immigration Bench under Garland? Why aren’t cases like this being used to end the “asylum free zone” improperly established by some Houston IJs?
These are the “tough questions” that Garland should have addressed. Why hasn’t he? Why is “refugee roulette” still plaguing EOIR and American justice — 15 years after the problem was first “outed” by my Georgetown Law colleagues Professors Schrag, Schoenholtz, and Ramji-Nogales? How is this “good government,” or even “minimally competent government?”
When compelling, well-documented cases like this are turned down at the trial level, something clearly is rotten in the system! Make no mistake about it, lack of expertise, bad judicial attitudes, widespread anti-asylum bias, counterproductive “haste makes waste gimmicks,” and way, way too many denials are significant “drivers” of the backlog that continues to mushroom under Garland.
The arbitrary and often grotesquely unfair, unprofessional, and results-driven state of “justice” in Garland’s dysfunctional Immigration Courts was recently highlighted by Brooklyn Law Associate Dean Stacey Caplow in her lament about the Supremes’ abdication of responsibility in Patel v Garland.
As Dean Caplow cogently points out:
Patel shuts the door firmly and unequivocally, preventing independent review of fact-finding by Immigration Judges, however irrational and indefensible once the Board of Immigration Appeals has affirmed. This makes the need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament even more urgent. Perhaps this case will provide new impetus for reform such as Real Courts, Rule of Law Act of 2022 voted by the House Judiciary Committee in May just days before the Supreme Court’s decision.
While an independent, subject matter expert Article I Immigration Court is the obvious answer, unfortunately, it’s not immediately on the horizon. Meanwhile, the innocent and vulnerable continue to suffer daily injustices, sometimes gratuitous humiliation or dehumanization, in Garland’s broken system. It DOESN’T have to be this way!
As Dean Caplow says, we “need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament.” It’s not “rocket science” 🚀— just intellectual excellence, courage, and a fair-minded approach to justice!
There are literally hundreds of extraordinarily well-qualified individuals out there in the private sector who could outperform the IJ in this case in every critical aspect of the job! Why hasn’t Garland actively recruited them for his courts? Why isn’t his system functioning correctly “on the retail level?”
Garland has the authority to take the bold action necessary to redirect, refocus, and re-populate his current parody of a court system to laser-focus on due process, fundamental fairness, judicial expertise in immigration and human rights, and efficiency (without sacrificing due process or decisional excellence).All of us who care about the future of American justice should be asking why he isn’t doing his job!
Immigration courts are overrun with cases, and it’s only getting worse
Nolan Rappaport, opinion contributor
The immigration court has a backlog of more than 1.7 million cases. This means that the number of people waiting for a hearing is larger than the population of Phoenix, Ariz., or of Philadelphia, Pa., the fifth and sixth largest cities in the United States.
This isn’t a new problem, but it has gotten much worse recently. According to TRAC, a data distribution organization at Syracuse University, the growth of the backlog has been accelerating at a breakneck pace since the start of the Biden administration when it was “only” close to 1.3 million cases.
What is the administration doing to reduce the backlog?
Hiring more judges: Recent administrations have prioritized hiring more judges to lower the backlog. From fiscal 2014, to fiscal 2021, the number of judges has more than doubled, rising from 249 to 559. At the end of the first quarter in fiscal 2022, there were 578.
According to the Congressional Research Service, the backlog probably would continue to grow even if 100 more judges were hired. An additional 200 could reduce the backlog to just under 1.1 million, but it wouldn’t reach that level until fiscal 2031. It would take an additional 500 judges to eliminate the backlog entirely, and it wouldn’t happen until fiscal 2030.
Accelerated dockets: In May 2021, DHS announced a “dedicated docket” program to “more expeditiously and fairly” render decisions in the cases of certain families who are apprehended after making an illegal entry.
These families are placed in removal proceedings and then released into the interior of the country under the “Alternatives to Detention” program. This program currently is monitoring more than 227,508 families and single individuals.
The Florence Projectclaims that the Obama and Trump administrations attempted these “dedicated dockets” to reduce the backlog and it not only failed, but led to widespread due process violations and undermined access to legal counsel.
The Vera Institute of Justiceopposes the program because it “forces newly arriving, asylum-seeking families through rushed ‘rocket docket’ court proceedings without guaranteeing legal representation for all, depriving families of fairness and due process.”
In any case, it just speeds up the processing of new additions to the immigration court caseload. It does nothing to reduce the size of the backlog, and it is very unfair to migrants who have been waiting for a hearing for up to five years.
It also may hamper efforts to reduce the backlog. Georgetown law school professor Paul Schmidt points out that when dedicated docket judges are not available for cases on the general docket, it places extra burdens on their judicial colleagues who are handling the general docket cases.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at https://nolanrappaport.blogspot.com
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Go over to The Hill at the above link to read the complete article.
Thanks Nolan for continuing to “shine the light” on this critical issue that might appear to be “below the radar screen” but actually threatensthe stability of our entire legal system!⚖️
As I’ve said many times, Aimless Docket Reshuffling (“ADR”), engaged in to some extent by Administrations of both parties, is NOT the answer. It’s a huge part of the problem!
Laila, my friend, everywhere I look you’re making news! Here’s Dan Kowalski @ LexisNexis on Layla’s well-deserved Lisa Brodyaga Award from the National Immigration Project:
Laila was a “guest lecturer” in my Refugee Law and Policy class during her time as a Fellow at the CALS Asylum Clinic at Georgetown Law. Since then, I have “returned the favor” by traveling to Tulane Law, both virtually and in person, to speak to Laila’s class and other immigration events. Laila has been recognized for “putting Tulane Law on the map” for innovative practical scholarship in immigration and international human rights and excellence in clinical teaching. No wonder she carries a “string of titles” at Tulane Law!
Laila is also one of many exciting examples of how clinical immigration and human rights professors have not only moved into the “academic mainstream” at major American law schools, but have been recognized as leaders and innovators by the larger academic communities in which they serve. Immigration law teaching has come a long way since the late INS General Counsel Charlie Gordon’s Immigration Law Class at Georgetown was the “only game in town.” (Historical trivia note: My good friend the late BIA Judge Lauri Filppu and I “aced” Charlie’s class in 1974, thus “besting” our then-supervisor at the BIA. That could have been a “career limiting” move. But, we both ended up on the “Schmidt Board” in the 1990s.)
Many congrats, Laila, on an already amazing career with even more achievements and recognition in your future. Thanks for being such a brilliant, inspiring, and dynamic role model for the New Due Process Army!
“Kelly Gonzalez Aguilar is a transgender woman from Honduras. She came to the United States and applied for asylum, withholding of removal, and deferral of removal. In support, Kelly claimed • past persecution in Honduras from her uncle’s abuse, • fear of future persecution from pervasive discrimination and violence against transgender women in Honduras, and • likely torture upon return to Honduras. The immigration judge denied the applications and ordered removal to Honduras. In denying asylum, the immigration judge found no pattern or practice of persecution. Kelly appealed the denial of each application, and the Board of Immigration Appeals dismissed the appeal. The dismissal led Kelly to petition for judicial review. We grant the petition. On the asylum claim, any reasonable adjudicator would be compelled to find a pattern or practice of persecution against transgender women in Honduras.”
Imagine what it would be like if we had an AG with the guts and decency to appoint a BIA of real judges — asylum experts who would adhere to due process and fairly, properly, and consistently interpret asylum laws rather than spewing out specious, life-destroying, bogus denials? Backlogs might even start decreasing!
Remarkably, even the Trump-appointed dissenting Circuit Judge Joel M. Carson concedes that EOIR easily could have decided this case in favor for the respondent and perhaps should have.
No doubt a person could view the record before us differently—the majority does so today—and I might on de novo review.
He then willingly gets lost in a forest of bogus reasons for abusing “standards of review” as an excuse for Article III Judges to avoid responsibility for life-threatening miscarriages of justice.
In stark terms, a reasonable judge could have saved this respondent and probably should have. But, this IJ and the BIA chose not to. So, who cares because it’s only a brown-skinned asylum seeker whose life is so insignificant that we should relegate it to the realm of chance and happenstance. Next case, please!
Asylum law, according to the Supremes in Cardoza-Fonseca is supposed to be interpreted generously in favor of protection. If legal protection from persecution or death is one possible outcome, it should be the the only acceptable outcome! Saying that some humans should potentially die while others be protected basically depending on a Federal Judge’s personal philosophy and mood on a particular day isn’t just legally wrong and a denial of due process and equal protection — it’s immoral!
The point is obvious. Better qualified judges at the BIA would put an end to this treatment of life or death decisions as a “crap shoot” — dependent on which IJ is drawn, the composition of the BIA “panel,” the Federal Circuit in which the case arises, the “luck of the draw” on the Circuit panel, and probably the “day of the week.” This is no way to run a justice system. And, Garland and his complicit lieutenants know that!
A better AG would long ago have installed a better BIA. It’s classic “Refugee Roulette” ☠️⚰️ being promoted by a Dem Administration! Instead of putting an end to this disgraceful “intellectual game of chance with human lives” being played by ivory tower bureaucrats and judges who have “immunized” themselves from the traumatic real life consequences of their bad decisions, Garland has chosen to “play along”
When he’s not carrying out Stephen Miller’s anti-asylum policies @ EOIR with Miller’s holdover acolytesas “judges” and “senior executives,” Garland is busy helping Trump and his fellow GOP insurrectionists “run out the clock” on the House Jan. 6 Panel!
Note: The briefing is back after a short hiatus while I transitioned to a new position at NIJC. It will be coming from my gmail for a few weeks while I set up a more long-term distribution system. In the meantime, please add egibson@heartlandalliance.org to your trusted contact list so that any future messages do not go to spam.
CONTENTS (click to jump to section)
PRACTICE ALERTS
NEWS
LITIGATION & AGENCY UPDATES
RESOURCES
EVENTS
PRACTICE ALERTS
eROPs: EOIR has begun digitizing some paper records of proceedings (ROPs). Once an ROP is an eROP, only ECAS electronic filing will be permitted on that case. However, this will be a lengthy process and it sounds like EOIR is prioritizing conversion of smaller records first.
DHS: Individuals eligible for TPS under this designation must have continuously resided in the United States since March 1, 2022. Individuals who attempt to travel to the United States after March 1, 2022 will not be eligible for TPS.
USCIS: U.S. Citizenship and Immigration Services today announced that it is updating the USCIS Policy Manual to consider deferred action and related employment authorization for noncitizens who have an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, for Special Immigrant Juvenile (SIJ) classification but who cannot apply to adjust status to become a lawful permanent resident (LPR) because a visa number is not available.
AP: A federal appeals court on Friday upheld sweeping asylum restrictions to prevent spread of COVID-19 but restored protections to keep migrant families from being expelled to their home countries without a chance to plead their cases. Almost simultaneously, a federal judge in another case ruled that the Biden administration wrongly exempted unaccompanied children from the restrictions and ordered that they be subject to them in a week, allowing time for an emergency appeal.
Bloomberg: The estimated wait time for a work permit has risen to eight to 12 months, up from about three months in 2020, according to data from U.S. Citizenship and Immigration Services.
Law360: Texas’ Operation Lone Star border security initiative has expanded over the past year despite courtroom setbacks revealing cracks in its legal foundation, and it appears poised to grow further unless the federal government steps in to confront it.
SCOTUS: “Wooden committed his burglaries on a single night, in a single uninterrupted course of conduct. The crimes all took place at one location, a one-building storage facility with one address. Each offense was essentially identical, and all were intertwined with the others. The burglaries were part and parcel of the same scheme, actuated by the same motive, and accomplished by the same means.”
SCOTUSblog: The Supreme Court on Wednesday [in oral arguments] returned to the scope of the right to sue federal officers for damages under Bivens v. Six Unknown Named Agents, in a case arising from events surrounding an (unfairly) disparaged inn and suspicious characters near the U.S.-Canada border.
Lexis: As we noted above, while (b)(4) requires “changed country conditions,” (b)(3) does not. Thus, the BIA’s reference to a “material change in country conditions” and the analysis that followed shows that the BIA applied § 1003.23(b)(4). In applying the standard of § 1003.23(b)(4) to a timely filed motion, the BIA acted contrary to law.
Lexis: . After he pled guilty to first-degree home invasion, the Department of Homeland Security initiated removal. But the removal didn’t go as planned: DHS failed to show that Jasso was in fact removable, and the immigration judge terminated the proceeding. So DHS tried again. It started a second removal proceeding based on a new legal theory but the same underlying facts. The problem? The doctrine of claim preclusion prevents parties from litigating matters they failed to raise in an earlier case. Because claim preclusion barred the second removal proceeding, we grant the petition for review, vacate, and remand.
Reuters: A federal appeals court on Monday declined to dismiss an “unprecedented” criminal case filed during the Trump administration against a Massachusetts judge accused of impeding a federal immigration arrest of a defendant in her courtroom.
Law360: Sixteen attorneys general of Democratic-led states, including the District of Columbia, are defending a new Illinois law phasing out immigrant detention contracts and urging the Seventh Circuit to dismiss a challenge by two Illinois counties, saying the policy does not interfere with federal enforcement of immigration law.
NYT: People with health conditions that place them at high risk from Covid-19 have been denied access to coronavirus vaccine booster shots while in federal immigration detention, the American Civil Liberties Union said in a lawsuit filed on Tuesday.
Reuters: The U.S. Embassy in Havana announced on Thursday it would increase staffing and resume some visa processing in Cuba several years after the Trump administration slashed personnel at the facility following a spate of unexplained health incidents.
AILA: EOIR will open immigration courts in Hyattsville, Maryland, and Laredo, Texas, today, February 28, 2022. The Hyattsville and Laredo immigration courts will have 16 and 8 immigration judges, respectively. Both courts will hear transferred cases; EOIR is notifying parties whose locations have changed.
AILA: Due to conflict in both regions, DHS will extend and redesignate South Sudan for TPS for 18 months, and designate Sudan for TPS for 18 months. The extension and redesignation of South Sudan is in effect from 5/3/2022, through 11/3/2023. The memo details eligibility guidelines.
AILA: USCIS announced that its website will now feature a Lockbox Filing Location Updates page, where customers can track when lockbox form filing locations are updated. Updates will also be emailed and announced on social media.
USCIS: USCIS has clarified Form I-9 guidance related to Native American tribal documents. We also published new guidance regarding T nonimmigrants (victims of human trafficking) and U nonimmigrants (victims of certain other crimes) in the M-274, Handbook for Employers. USCIS has provided these updates to respond to customer needs.
Thanks for all you do for due process and fundamental fairness in America, Liz! And congrats again to both you and NIJC/Heartland Alliance on your new position!
My good friend Heidi Altman, Director of Policy at NIJC, should be delighted, as Liz is a “distinguished alum” of both the CALS Asylum Clinic at Georgetown Law (where Heidi was a Fellow) and my Refugee Law & Policy class. Liz also served as an Arlington Intern and a Judicial Law Clerk at the NY Immigration Court. Liz has been a “powerful force for due process, clear, analytical writing, and best practices” wherever she has been! So, I’m sure that will continue at NIJC! Clearly, Liz is someone who eventually belongs on the Federal Bench at some level.
Liz’s mention under “Litigation” of the Supremes’ decision in Wooden v U.S., where Justice Kagan for a unanimous Court interpreted the term “single occasion” broadly in favor of a criminal defendant, raises an interesting immigration issue.
Two decades ago, in Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), the BIA basically “nullified” the INA’s statutory exemption from deportation for multiple crimes “arising out of a single scheme of criminal misconduct.” Rejecting the 9th Circuit’s contrary ruling, the BIA essentially read the exception out of the statute by effectively limiting it to lesser included offenses.
How narrow was this interpretation? Well, in 21 years on the immigration appellate and trial benches, I can’t recall a single case where the “scheme” did not result in deportation under Adetiba. Taking advantage of the outrageous “doctrine of judicial task avoidance” established by the Supremes in the notorious “Brand X,”the BIA eventually took the “super arrogant” step of nullifying all Circuit interpretations that conflicted with Adetiba! Matter of Islam, 25 I&N Dec. 637 (BIA 2011).
Surprisingly, in my view, in his concurring opinion in Wooden, Justice Gorsuch actually applied the “rule of lenity” — something else the “21st Century BIA” has basically “read out of the law” in their haste to deport! Here’s what Justice Gorsuch said:
Today, the Court does not consult lenity’s rule, but neither does it forbid lower courts from doing so in doubtful cases. That course is the sound course. Under our rule of law, punishments should never be products of judicial conjecture about this factor or that one. They should come only with the assent of the people’s elected representatives and in laws clear enough to supply “fair warning . . . to the world.” McBoyle, 283 U. S., at 27.7
As the ongoing (“backlog enhancing”) “Pereira fiasco” shows, the BIA has had little problem “blowing off” or distinguishing the Supremes to deport or deny when asked by DHS Enforcement to do so. Today’s BIA “rule” for interpreting supposedly “ambiguous” statutes is actually straightforward, if one-sided: Adopt whatever interpretation DHS Enforcement offers even if that means “taking a pass” on a better interpretation offered by the respondent. So, I’m sure that Garland’s current “Miller Lite” BIA will simply distinguish Wooden as dealing with statutory language different from the INA and ignore its broader implications if asked to do so by “their partners” at DHS Enforcement.
But, whether all Circuits will see it that way, and/or allow themselves to continue to be humiliated by “Brand X,” or whether the issue will reach the Supremes, are different questions. In any event, immigration advocates should pay attention to Wooden, even if the BIA is likely to blow it off.
The current Supremes don’t seem to have much difficulty jettisoning their own precedents when motivated to do so! Why they would continue to feel bound by the bogus “Chevron doctrine” or its “steroid laden progeny Brand X” to follow the interpretations of Executive Branch administrative judges on questions of law is beyond me! Somewhere Chief Justice John Marshall must be turning over in his grave!