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

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

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

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

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

Originally Delivered in December 2024

By Paul Wickham Schmidt

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

I. INTRODUCTION & DISCLAIMER

Please listen very carefully to the following important announcement.

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

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

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

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

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

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

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

II. REFUGEE DEFINITION

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

Basically, a “refugee” is:

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

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

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

III. ELEMENTS

1. Persecution

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

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

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

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

B. Protected Grounds

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

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

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

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

C. Two schools of thought

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

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

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

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

D. Nexus

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

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

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

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

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

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

E. Burden of proof/standard of proof

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

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

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

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

F. Past Persecution

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

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

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

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

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

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

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

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

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

G. Countrywide Fear

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

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

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

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

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

I. Exclusions From Asylum

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

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

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

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

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

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

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

J. Discretion

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

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

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

IV. BENEFITS OF ASYLUM

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

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

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

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

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

VI. ACCESS TO THE SYSTEM

The INA states that:

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

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

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

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

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

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

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

VII. WOES OF ADJUDICATING BODIES

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

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

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

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

VIII. CONCLUSION

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

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

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

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

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

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

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

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

Thank you for listening, and due process forever!

(01-09-25.1)

🇺🇸 REMEMBERING THE CARTER YEARS

The Carter Years

By Paul Wickham Schmidt

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

President With An “Afterlife”

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

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

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

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

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

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

Human Rights Focus

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

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

INS Commissioner Leonel Castillo: The Fall of a Rising Star

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

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

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

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

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

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

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

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

General Counsel/Acting Commissioner David Crosland

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

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

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

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

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

Ben Civiletti Succeeds Judge Griffin Bell as AG

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Those Were The Days, My Friend

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

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

(12-29-24)

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

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

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

REVISITED VERSION 3

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

Originally Delivered in September 2024

Edited and Revised, Nov. 4, 2024

By Paul Wickham Schmidt

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

INTRODUCTION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FULL MEMBERS

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

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

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

ASSOCIATE MEMBERS

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

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

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

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

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

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

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

FRIENDS

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

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

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

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

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

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

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

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

OUTCASTS

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

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

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

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

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

CONCLUSION

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you for listening, and due process forever!

(11-04-24)

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

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

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

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

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

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

🇺🇸⚖️🗽🎖️🙏🏽 THANK YOU PROFESSOR STEPHEN YALE-LOEHR: MY LETTER TO A FRIEND & AMAZING “PRACTICAL SCHOLAR” ON THE OCCASION OF HIS RETIREMENT FROM TEACHING!

Dear Steve:

Congratulations again and my utmost appreciation for your absolutely stellar, four-decade, high-impact career in applied scholarship on immigration, human rights, and justice in America. Your influence, which I trust will continue unabated into retirement, has been a huge positive for our nation and our world.

As I previously mentioned, I am sorry that I will be unable because of previous commitments to celebrate in person or online with you and your many admirers at Cornell Law on November 8. But, I know it will be a “love-fest” whether in the form of “roast” or “conferring of regalia!”

You are the epitome of what I have termed the “practical scholar” — someone who uses creativity, extraordinary learning, and masterful command of a complex subject to solve problems, achieve actual results in the real world, inspire others, and produce positive trends. I have truly treasured our friendship and association going back over four decades to your time at Interpreter Releases, Immigration Briefings, and Federal Publications. We, of course, shared the mentorship of the late, great former BIA Chair and Editor of Interpreter Releases Maury Roberts, the friendship and professional association with the late Juan Osuna who played a major role in our respective careers, as well as our mutual association with Sue Siler who worked with me during my “Jones Day era.”

I assume that you recollect helping and encouraging me to set a “footnote record” with my article on employer sanctions for Immigration Briefings as well as our work together on some updates for your treatise Immigration Law & Procedure, and the now long in the past Federal Publications “holiday bashes” for authors and editors!

Our friendship and association continued beyond my “private practice phase” into my tenure as BIA Chair and then into my “next chapter” at the “Legacy Arlington Immigration Court.” Following my retirement, I was delighted to accept your kind invitation to be part of the Berger International Programs Lecture Series at Cornell Law in March 2017. We also had a chance to strategize and talk about”applied law” with your wonderful Clinic students who were engaged in some really challenging and important cases!

Professors Jaclyn Kelley-Widmer & Steve Yale Loehr show off their “no ties look” at Cornell Law, March 2017.

I also appreciated having a chance to see your spectacular campus and to chat with you informally over meals. Your book “Green Card Stories,” which you “gifted” to me at the time, eventually because one of the sources and inspirations for an adult enrichment class on a cultural anthropological and legal approach to American immigration history that I co-taught with my friend and colleague Dr. Jennifer Esperanza at Lawrence University’s Bjorklunden Seminars.

No, it’s not the Tower of London, but the “Tower of Law” @ Cornell (not to be confused with the “Falls Church Tower”).
March 2017

Of course in addition to your many scholarly publications and Clinic successes, you have been a tireless presenter and public voice for truth, accuracy, scholarship, and humane solutions to thorny immigration and human rights issues at a time when myths, disinformation, and fear about these topics scandalously have become “normalized” in our political and media discourse. Indeed, I have “featured” your activities, including your heartfelt tribute to Juan Osuna, on my blog immigrationcourtside.com no less than 45 times (and I probably missed a couple)! I also greatly admire and appreciate you and others having the guts and integrity to “speak truth to power and set the record straight” even when powerful currents are pushing in the opposite direction.

Recently, I was happy to be able to share an evening with you and Amy during the DC Tribute Dinner for our mutual friend and inspiration Doris Meissner. I will also take full credit for shaming you into wearing a coat and tie to the function. After all, somebody has to maintain standards among the ranks of the New Due Process Army (“NDPA”).

In closing, thank thank you again, Steve, for your more than four decades of friendship, support, encouragement, scholarship, and unswerving commitment to using law as a tool for humane practices, due process, inspiring the younger generations, and overall making our nation and our world a better place! I wish you, Amy, and your family all the best in retirement and look forward to many years of continuing association in the cause of justice.

Congratulations again, due process forever, and best wishes, always,

Paul

🇺🇸⚖️⚔️🛡 OUR ROUND TABLE MAKES A DIFFERENCE WELL BEYOND LITIGATION: Practical, experienced, committed, generous former jurists continue to inspire the next generation of great NDPA lawyers and human rights advocates!😎👍

Powerful Force of Nature" — With lots of help from our friends, the Round Table has become a “Powerful Force of Nature,” carving out a spot for due process even along the most wild and rugged coasts!
PHOTO: PWS Maine Collection

“Our Fearless Leader,” Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

“Sir Jeffrey” Chase forwarded this note of appreciation from one of the all-star advocates who represented The Round Table in drafting an amicus brief:

You, Paul and the Roundtable played a central role in this decision. Beyond the persuasive amicus brief, your group—along with . . . . —gave me the confidence to pursue the due process claim . . . . Your advocacy is admirable and much needed; it also has an impact beyond just the individual cases you support as an amicus. . . . . [T]his case has been one of the most impressive collaborative efforts I’ve had the opportunity to be involved with [in my decade of professional experience.] Thank you again for your interest and support of this important case, as well as your work in this space more broadly.

This is also a great space to once again thank all of the top flight legal talent, law firms, NGOs, and legal clinics that have donated their time and talents pro bono to the cause of due process, equal justice for all, and advancing best practices. Indeed, you have “given us a voice” — one that has proved to have an outsized impact on our American justice system.

Working with our wonderful “partners in due process and professional excellence” has been a total joy and fulfilling career opportunity for each of us! We never, ever forget what we owe to your skill and generous donation of time, resources, and effort. Just as we are committed to insuring that all individuals appearing in Immigration Court — the essential “retail level” of our justice system — have a right to be heard, YOU have insured that WE will be heard — loudly and clearly for a long time to come! Thank you again from the bottom. of our “collective hearts!”💕

🇺🇸Due Process Forever!⚖️🗽

PWS😎

10/30./24

🍁🍂🌅 STEP INTO FALL WITH PHOTOS FROM “SIR JEFFREY” CHASE & ME!

“Sir Jeffrey” from NYC:

PWS from Boothbay Harbor, ME (Linekin Bay Side):

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DPF!

PWS

10-25-24

📰 SPECIAL EDITION: D.C. PREMIERE OF “THE COURTROOM” HEADLINES AYUDA/GEORGETOWN FUND RAISER AT NEW McCOURT SCHOOL OF PUBLIC POLICY!

Here’s a report on the night’s activities from AYUDAS’s amazing Executive Director Paula Fitzgerald:

Dear Friends,

I hope you enjoyed our screening of The Courtroom as much as I did. The panel discussion connected us back to Ayuda’s mission and the greatest challenges our clients face as they navigate the legal system in an unfamiliar language.

I want to give a big thanks some special supporters who make this evening possible:

A special thank you to Georgetown University’s Community Engagement Manager and Ayuda’s Advisory Board Member, Erick Castro, for coordinating this reception and film screening, as well as Georgetown University for hosting this event in their new Capitol Campus building.

We’re honored to have had Waterwell Productions with us, specifically Co-Founder & Board Chair Arian Moayed and Managing Director Sarah Scafidi. Thank you for sharing this powerful story with Ayuda’s community.

Thank you to the Honorable Paul Schmidt for helping us bring The Courtroom to DC and sharing your connection to the film.

A moment of appreciation for our stellar panelists, Edgar and Marilyn, and wonderful moderator, Sandra. Thank you all for closing out the evening with an engaging conversation.

A warm round of applause to each of you for joining us. It was truly a delightful evening and I’m so glad to have had the opportunity to connect with many of you.

Are you interested in learning more about Ayuda’s advocacy program? Email us at advocacy@ayuda.com. Are you interested in volunteering? Check out our volunteer portal for current opportunities. Are you interested in making a gift to support Ayuda’s mission? Visit our website or email us atdevelopment@ayuda.com.

AYUDA/GEORGETOWN “THE COURTROOM”

Warm regards,

Paula Fitzgerald

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

Here’s the text of my opening remarks:

**Ayuda’s Film Screening of The Courtroom – Opening Remarks by Paul Wickham Schmidt**

Georgetown University, McCourt School of Public Policy

September 18, 2024

Good evening and welcome everyone! Thanks for coming out to support Georgetown’s partnership with Ayuda.

My name is Paul Wickham Schmidt, and I’ve been given the privilege to introduce this powerful film, The Courtroom. Before I introduce a special guest, who is no stranger to the film and silver screen, I would like to share why this story is so important to me. My experience has landed me in an interesting corner of many of tonight’s themes and key players in making this event possible.

I was appointed as a federal immigration judge and served for 21 years, at both the trial and appellate levels. During my time as an adjunct professor at Georgetown Law, I’ve written extensively about immigration law. And, I’m currently a proud Advisory Board member for Ayuda, an organization that I truly care about and has deep roots in this community.

In fact, Ayuda helped all of us during my tenure in the “Legacy” Arlington Immigration Court with their superior pro bono representation. You will witness this evening the critical, life-saving and future-determining, role played by great legal representation in Immigration Court.

And, if you don’t already know, you will be astounded to learn that in Immigration Court individuals, including infants and toddlers, face trial for their lives without the right to appointed counsel! I want you to imagine how this case might have come out if this individual had been required to represent herself throughout her various legal proceedings. Yet, that is the predicament in which far, far too many individuals now find themselves.

I just read a TRAC Syracuse report that fewer than 15% of those ordered deported in Immigration Court in August 2024 were represented. I find that appalling! It’s actually a regressive trend since I left the bench. That’s why the role played by organizations like Ayuda and the teaching function of the CALS Asylum Clinic here at Georgetown Law are so completely essential to American Justice at what I call the “retail level.”

Now, I’m not here to read my resume. Instead, I will share why The Courtroom holds so much significance for us. The late film critic Roger Ebert once said, “the movies are like a machine that generates empathy.” The classic legal dramas like “12 Angry Men,” or “To Kill A Mockingbird,” for example, give us great insight into the devastating experience of being tried for a crime one did not commit.

But never had I seen a filmmaker put the empathy machine to work in Immigration Court. That is, until I learned about The Courtroom from my friend and colleague retired Immigration Judge Jeffrey S. Chase of New York. He actually served as an informal advisor on the production and played an important “cameo role” in the earlier award-winning stage versions of The Courtroom, as did other of our retired judicial colleagues.

Many of us will be fortunate enough never to have to endure a removal proceeding as a subject ourselves. We will never understand what it’s like to face the fear of being separated from our children, our families, our jobs, and our communities: In the words of the Supreme Court “all that makes life worth living!” (Ng Fung Ho v. White | 259 U.S. 276 (1922)).

The film you’re about to watch tells one woman’s story confronting these terrors, with the utmost compassion. The “script” is a verbatim transcript of an actual immigration case, brought to life by the great actors, directors, and producers at Waterwell.

When the credits roll, I hope you’ll remember that The Courtroom is much more than a story. It’s real-life drama, “living theater” as I used to describe it to my Georgetown Law students – and right now, more than 3 million immigrants undergoing deportation proceedings are living it, along with their families, friends, co-workers, and other community members whom they interact with on a daily basis.

It’s with great honor that I get the opportunity to introduce our next speaker. He’s an actor, director, and the screenplay writer of our feature presentation. He has received two Tony Award nominations and two Primetime Emmy Award nominations, and you might recognize him from Marvel Cinematic Universe. Please give a warm round of applause for Waterwell Co-Founder, Arian Moayed!

Arian, I really, really appreciate your taking time out of your hectic schedule to be with us tonight for this important D.C. Area premiere!

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Due Process Forever!😎

PWS

09-19-24

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

Sabbitical — Gone on sabbatical
IMAGE: Public Realm

Well, friends, since “inception” on December 22, 2016:

Neatly 7 1/2 years elapsed;
Three different Administrations;
5,526 posts (including this one);
1,152 comments;
43 “Pages;”
403 subscribers;
Over 1,000,000 “views” (estimated);
More than 140,400 “blocks” by my hard-working “spam catcher!”

It’s time for me to take a break from Courtside to “rest, refresh, and refocus” as they say in the “sabbatical business.” After all, I’ve been “retired” since June 30, 2016, going on eight years!

To mark the occasion, here’s a “reprint” of one of my favorites from that first month, December 2016:

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

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

“Immigration advocates have repeatedly criticized the Obama administration for its increased reliance on detention facilities, particularly for Central American families, who they argue should be treated as refugees fleeing violent home countries rather than as priorities for deportation.

They also say that the growing number of apprehended migrants on the border, as reflected in the new Homeland Security figures, indicate that home raids and detentions of families from Central America isn’t working as a deterrent.”

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The “enforcement only” approach to forced migration from Central America has been an extraordinarily expensive total failure. But, the misguided attempt to “prioritize” cases of families seeking refuge from violence has been a major contributing factor in creating docket disfunction (“Aimless Docket Reshuffling”) in the United States Immigration Courts.

And, as a result, cases ready for trial that should have been heard as scheduled in Immigration Court have been “orbited” to the end of the docket where it is doubtful they ever will be reached. When political officials, who don’t understand the Immigration Court and are not committed to its due process mission, order the rearrangement of existing dockets without input from the trial judges, lawyers, court administrators, and members of the public who are most affected, only bad things can happen. And, they have!

PWS

12/31/16

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True today as it was then!

🇺🇸 Thanks for reading and engaging, best wishes and, of course, “Due Process Forever!”

😎PWS🏜️🌄🌅🖼️

05-31-24

🇺🇸🗽IMMIGRATION HISTORY: CATHERINE E. SOICHET @ CNN: Looking Back At The Bracero Program: “Legalized Slavery!”

CATHERINE E. SHOICHET — Catherine E. Shoichet
Senior Writer
CNN
PHOTO: CNN

Catherine writes:

https://www.cnn.com/2024/05/21/travel/braceros-landmark-texas-rio-vista-cec?cid=ios_app

(CNN) — Some of Sebastian Corral’s memories have faded. But the 91-year-old remembers his 1953 arrival in the US as if it were yesterday.

How workers like him were forced to strip naked and sprayed with insecticide.

How their hands were inspected to make sure they were qualified for the hard labor that awaited them.

How unwelcome he and so many others felt even though they’d been invited across the border by the US government.

“You felt humiliated. You felt like you were nothing, even though you’d come to work and lift yourself up,” Corral told CNN in a recent interview via Zoom from his home in Vado, New Mexico.

Memories of those first moments in America came rushing back for Corral this month during a dramatically different visit to the place where he took his first steps in the country more than 70 years ago.

This time, officials were unveiling plaques designating the former Rio Vista Bracero Reception Center in Socorro, Texas, as a National Historic Landmark. And Corral was a guest of honor.

. . . .

Today, he describes the long journey that began at Rio Vista with pride:

“I came as a bracero. After being a bracero, then I was illegal for some years. After being illegal, then I was a permanent resident. Now I am a citizen.”

In some ways, Rio Vista wasn’t like Corral remembered when he returned this month. The buildings were more worn-down — some “pure ruins,” Corral says. But what Corral noticed most wasn’t the buildings; it was how differently he felt being there.

“I was not the same person as before,” he says.

So much had changed since those first days when he was a young man waiting for a rancher to arrive at Rio Vista with work.

He’d harvested cotton, and driven tractors, and picked beets and cucumbers as a bracero. He’d lived in New Mexico, Colorado, Wyoming and Texas during his years in the program. Once, an El Paso restaurant had refused to serve him because he was Mexican. He’d been an undocumented immigrant for decades. He’d washed dishes and prepped food in a Los Angeles restaurant. He’d worked at dairy farms in California. He’d become a legal resident after President Reagan signed a law granting him and millions of others amnesty. He’d finally brought his wife and children to the US after years of separation. He’d saved enough money to buy land for all of them to build homes nearby. He’d had 14 grandchildren and 17 great-grandchildren.

And just two years ago, he’d finally become a US citizen after decades of knowing he was American, nearly 70 years after his first arrival in the United States.

All of this went through Corral’s mind as he revisited Rio Vista on May 11. And in the mix of emotions that hit him, he felt anger at some points, but also, contentment.

Some of the buildings around him were in ruins as they awaited renovation. But Corral was standing in the Rio Vista courtyard with generations of his family beside him.

And he saw something else: the life that he built.

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Read the complete story at the link.

The thing that stands out time after time: The strength, character, and triumph of individual immigrants over laws and actions often intended to exploit, dehumanize, and/or discourage them!

🇺🇸 Due Process Forever!

PWS

05-29-24

😎 👍 OPTIMISTIC LIFE, POSITIVE LEGACY: R.I.P. BILL WALTON (1952-2024) — Hoops Superstar,🏀 Memorable Announcer, 🎤Grateful Dead Fan, ☠️ All-Around Good Guy 🤣Succumbs To Cancer at 71, As Well-Earned Tributes Pour In!

From NBA.com:

https://www.nba.com/news/nba-family-pays-tribute-to-bill-walton

Kareem Abdul-Jabbar, Magic Johnson and more pay tribute to Bill Walton

NBA legends, current players and members of the basketball community react to the Hall of Famer’s death on Monday.

Updated on May 28, 2024 7:45 AM

Bill Walton (1952-2024)

Members of the NBA 75th Anniversary Team took to social media to honor the legendary Bill Walton (left) on Monday.

Hall of Fame center Bill Walton, a two-time champion at UCLA and in the NBA, a former No.1 overall pick, and one of the biggest personalities of the game, died on May 27 after a prolonged battle with cancer. He was 71 years old. Walton played 10 seasons in the NBA with the Portland Trail Blazers, LA Clippers and the Boston Celtics, averaging 13.3 points, 10.5 rebounds and 3.4 assists. He earned Finals MVP after leading the Blazers to the 1977 championship and won another title with the Celtics in 1986. A two-time All-Star, Walton won the league’s Most Valuable Player award in 1978.

Walton retired from the NBA after the 1987-88 season. He turned to broadcasting where he became one of the most entertaining and eccentric color commentators for NCAA and NBA telecasts.

A beloved member of the NBA family, legends, current players and other members of the basketball community took to social media to pay tribute to Walton’s career and his many off-the-court contributions.

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Walton was a zany presence, but his guts and talent were undeniable. He was one of the dominant college players of my younger days as a fan when UCLA under the legendary coach John Wooden was the undisputed “King of the Court” in NCAA basketball.

You can read the heartfelt tributes from his contemporaries at the above link.

Even in death, Walton leaves a “positive spin” that we’re much in need of these days.

🇺🇸 Due Process Forever!

PWS

05-28-24

🇺🇸🗽🤯 HISTORY: 100 YEARS AGO, AMERICA TRIED, BUT ULTIMATELY FAILED, TO STAY “WHITE & PROTESTANT” WITH THE 1924 IMMIGRATION ACT — Many Were Hurt Or Died From This Bias In The Interim — Now Trump & The Nativist Right Want To Revive One Of The Worst Eras In U.S. History — Will Indifference & Ignorance From Dems & So-Called “Centrists” Let Them Get Away With Turning Back The Clock? ⏰☠️🤮 — Two Renowned Authors Offer A View Of A Biased, Deadly, & Ultimately Highly Counterproductive Past That Still Poisons Our Politics & Threatens Our Future As A Beacon Of Hope! — PLUS: Kowalski & Chase Take On The “False Scholars” 🤮 Who Disingenuously Attempt To “Glorify” Xenophobia & Racism!🤯

1924 Act — The 1924 Immigration Act vilified, dehumanized, and barred many of those immigrants who have made America great, like Italian Americans being demeaned in this cartoon. Yet, some descendants of those unfairly targeted appear oblivious to the mistakes of the past and willing to inflict the same immoral lies, harm, and suffering on today’s migrants.
IMAGE: Public Realm

Eduardo Porter writes in WashPost:

https://www.washingtonpost.com/opinions/interactive/2024/immigration-history-race-quota-progress/

“I think that we have sufficient stock in America now for us to shut the door.”

That sounds like Donald Trump, right? Maybe on one of his campaign stops? It certainly fits the mood of the country. This year, immigration became voters’ “most important problem” in Gallup polling for the first time since Central Americans flocked to the border in 2019. More than half of Americans perceive immigrants crossing the border illegally as a “critical threat.”

Yet the sentiment expressed above is almost exactly 100 years old. It was uttered by Sen. Ellison DuRant Smith, a South Carolina Democrat, on April 9, 1924. And it helped set the stage for a historic change in U.S. immigration law, which imposed strict national quotas for newcomers that would shape the United States’ ethnic makeup for decades to come.

. . . .

The renewed backlash against immigration has little to offer the American project, though. Closing the door to new Americans would be hardly desirable, a blow to one of the nation’s greatest sources of dynamism. Raw data confirms how immigrants are adding to the nation’s economic growth, even while helping keep a lid on inflation.

Anyway, that horse left the stable. The United States is full of immigrants from, in Trump’s memorable words, “s—hole countries.” The project to set this in reverse is a fool’s errand. The 1924 Johnson-Reed immigration law might have succeeded in curtailing immigration. But the restrictions did not hold. From Presidents Johnson to Trump, efforts to circle the wagons around some ancestral White American identity failed.

We are extremely lucky it did. Contra Sen. Ellison DuRant Smith’s 100-year old prescriptions, the nation owes what greatness it has to the many different women and men it has drawn from around the world to build their futures. This requires a different conversation — one that doesn’t feature mass expulsions and concentration camps but focuses on constructing a new shared American identity that fits everyone, including the many more immigrants who will arrive from the Global South for years to come.

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Gordon F. Sander, journalist and historian, also writes in WashPost, perhaps somewhat less optimistically, but with the same historical truth in the face of current political lies and gross misrepresentations:

https://www.washingtonpost.com/history/2024/05/24/johnson-reed-act-immigration-quotas-trump/

. . . .

Johnson and Reed were in a triumphant mood on the eve of their bill’s enactment. “America of the melting pot will no longer be necessary,” Reed wrote in the Times. He remarked on the new law’s impact: “It will mean a more homogenous nation, more self-reliant, more independent and more closely knit by common properties and common faith.”

The law immediately had its intended effect. In 1921, more than 200,000 Italians arrived at Ellis Island. In 1925, following the bill’s enactment, barely 6,000 Italians were permitted entry.

But there were less intended consequences, too, including on U.S. foreign relations. Although Reed insisted there was nothing personal about the act’s exclusion of Japanese people, the Japanese government took strong exception, leading to an increase in tensions between the two countries. There were riots in Tokyo. The road to Pearl Harbor was laid.

During the 1930s, after the eugenics-driven Nazis seized control of Germany, the quotas established by the act helped close the door to European Jews and others fleeing fascism.

At the same time, the law also inspired a small but determined group of opponents led by Rep. Emanuel Celler (D-N.Y.), who were committed to overturning it. Celler’s half-century-long campaign finally paid off in 1965 at the Statue of Liberty when, as Celler looked on, President Lyndon B. Johnson signed the Immigration and Nationality Act, which ended national origin quotas.

But with anti-immigration sentiment on the rise and quotas once again on the table, it’s clear that a century after its enactment, the ghost of Johnson-Reed isn’t completely gone.

Gordon F. Sander is a journalist and historian based in Riga, Latvia. He is the author of “The Frank Family That Survived: A 20th Century Odyssey” and other books

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Many thanks to my friend and immigration maven Deb Sanders for alerting me to the Sander article. I strongly urge everyone to read both pieces at the links above.

Perhaps the most poignant comment I’ve received about these articles is from American educator, expert, author, and “practical scholar” Susan Gzesh:

And because of the 1924 Act, my grandparents lost dozens of their siblings, parents, aunts, uncles, nieces, and nephews to the Holocaust in the 1940s because Eastern European Jewish immigration to the US had been cut off. They would have been capable of sponsoring more family to come to the US in the late 1920s and 30s, but there was no quota for them.

I have no words to describe my feelings about so-called experts who would praise the 1924 Act. I know that Asian Americans must feel similarly to my sentiments.

Well said, Susan!

Susan Gzesh
American scholar, educator, expert, author
PHOTO: U. Of Chicago

I’ll leave it at that, for you to ponder the next time you hear Trump, DeSantis, Abbott, and the like fear-monger about the bogus “invasion,” spout “replacement theory,” and extoll the virtues of extralegal cruelties and dehumanization inflicted upon “the other” — typically the most vulnerable who are seeking our legal protection and appealing to our senses of justice and human dignity! And, also you can consider this when the so called “mainstream media” pander to these lies by uncritically presenting them as “the other side,” thereby echoing “alternative facts!”

It’s also worth remembering this when you hear Biden, Harris, Schumer, Murphy, and other weak-kneed Dem politicos who should know better adopt Trumpist White Nationalist proposals and falsely present them as “realistic compromises” — as opposed to what they really are — tragic acts of political and moral cowardice!

Eventually, as both of the above articles point out, America largely persevered and prospered over its demons of racism, anti-Catholicism, and anti-immigrant nationalism. But, it would be wrong to view this “long arc” analysis as “zeroing out” the sins and horrors of our past.

Susan Gzesh’s relatives died, some horribly and painfully, before their time. That can’t be changed by future progress. Nor can the children they might have had or the achievements they never got to make to our nation and the world be resurrected.

As Susan mentions, the 1924 Act also reinforced long-standing racism and xenophobia against Asian Americans that led to the irreversible harm inflicted by the internment of Japanese American citizens, continuing Chinese Exclusion, and a host of state laws targeting the Asian population and making their lives miserable. Belated recognition of the wrongfulness and immorality of these reprehensible laws and actions does nothing for their past victims.

Many Irish, Italian, and other Catholics and their cherished institutions died, lost property, or were permanently displaced by widespread anti-Catholic riots brought on and fanned by the very type of biased and ignorant thinking that undergirded Johnson-Reed. They can’t be brought back to life and their property restored just by a “magic wave of the historical wand.”

U.S. citizens of Mexican-American heritage were deported and dispossessed, some from property their ancestors had owned long before there was even a United States. Apologizing to their descendants and acknowledging our mistakes as a nation won’t eliminate the injustices done them — ones that they took to their graves!

Despite the “lessons of the Holocaust,” America continues to struggle with anti-Semitism and anti-Islamic phobias and indifference to human suffering beyond our borders.

And, of course, the poisonous adverse impacts of slavery on our nation and our African-American compatriots continue to haunt and influence us despite disingenuous claims to the contrary.

My friends immigration experts Dan Kowalski and Hon. Jeffrey Chase also had some “choice words” for the “false scholars” who extol the fabricated “benefits” of White Nationalism and racism embodied in “laws” that contravened the very meaning of “with liberty and justice for all” — something to reflect upon this Memorial Day. See https://dankowalski.substack.com/p/true-colors.

That prompted this response from Susan:

Susan Gzesh

11 hrs ago

Thank you, Dan! In memory of my Gzesh, Wolfson, Kronenberg, and Kissilove relatives who were victims of the Holocaust – after their U.S.-based relatives failed to get visas for them.

I also recently weighed in on the horrors of the 1924 Act in a recent article by Felipe De La Hoz, published in The New Republic: https://immigrationcourtside.com/2024/05/02/🏴☠%EF%B8%8F🤯🤮-a-century-of-progress-arrested-the-1924-immigration-act-rears-its-ugly-nativist-head-again-felipe-de-la-hoz-in-the-new-repub/.

Heed the lessons of history, enshrine tolerance, honor diversity, and “improve on past performance!” We have a choice as to whether or not to repeat the mistakes of the past — to regress to a darker age or move forward to a brighter future for all! Make the right one!

🇺🇸 Due Process Forever!

PWS

05-27-24

🇺🇸⚖️🗽 IMMIGRATION GURUS DAN KOWALSKI & PROFESSOR KAREN MUSALO SLAM NYT’S DAVID LEONHARDT’S DANGEROUS☠️, “TONE DEAF,” IRRESPONSIBLE REPACKAGING OF NATIVIST IMMIGRATION LIES & MYTHS!🤯🤮 — Like The Pandering Nativist Politicos He Echoes, Leonhardt Makes Himself Part Of The Problem, While Ignoring The Truth-Based Solutions Offered By Experts!

Dan writes on Substack:

https://dankowalski.substack.com/p/when-journalists-stray

When Journalists Stray Or: Next Time, David Leonhardt, Check With Experts Before Writing About Immigration

DAN KOWALSKI

MAY 23, 2024

Immigration law and policy are very complex, and truly boring for everyone except those who have to deal with them. But we live in an instant gratification, fast food culture. Immigration is a Hot Topic, folks want a Solution Now, so journalists naturally write about it…some better than others.

David Leonhardt, a senior writer at the New York Times, is a smart fellow who has won awards. But his “wheelhouse,” as the kids say, is mostly business and economics. I wish he (and/or his editors…where were they?) had consulted a panel of experts before hitting “send” on this piece.

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Now, I’m not an expert, but I did practice immigration law for almost 40 years, and today my social media feeds and email listservs are burning up with negative reactions to Leonhardt’s piece from true immigration experts.

Responding to every one of the problems in the piece would make this post too long, and would put you to sleep rather quickly, so I’ll touch on just a few highlights that really chapped my professional hide.

First, Leonhardt said, “Biden … changed the definition of asylum to include fear of gang violence.” That is simply false. The definition of who qualifies for asylum is based on the “refugee” definition, is fixed by statute, and only Congress can change that. Congress did NOT make any such change, and neither Biden nor any president could. Fear of gang violence as a basis for an asylum claim is a continuing subject of litigation at the Board of Immigration Appeals and in the federal courts, but the statute remains unchanged.

Second, Leonhardt states that Biden could have issued executive orders to mitigate the situation at the border. Oh, but “Yes, federal judges might block some of these policies… .” Maybe because they are illegal orders? No matter, “sending a message” is more important than legality.

Third, on the matter of admission into the U.S. via “parole,” Leonhardt implies that Biden expanded the use of parole beyond its “case-by-case” legal limits. Maybe Leonhardt did not know that “parole was … used to resettle over 360,000 Indochinese refugees between 1975 and mid-1980” and that “[b]etween 1962 and the end of May 1979, over 690,000 Cuban nationals were paroled into the country, “the largest number of refugees from a single nationality ever accepted into the United States.” ” – Amicus brief submitted to the Supreme Court in Clark v. Martinez.

Finally, the overall thrust of Leonhardt’s piece seems to be that the border is a “problem” that can and should be “solved” by some combination of legal and physical deterrents. This is a misperception common to educated elites as well as regular folks, and it is based on an ignorance of the full panoply of historical, economic, geographic and political forces that combine to make true border “control” a fantasy. Go to the border, look at the miles of desert, mountain and river and you will conclude that border walls are nothing more than a contractor’s financial wet dream. Talk to a woman from Central America who has risked everything to come here and you will conclude that no laws, no walls, no “message” would have deterred her.

I usually ignore much of what the MSM publishes about immigration, but the Times and Leonhardt carry a certain weight, so here I am, typing away. You’re welcome.

[The Comments are open, so fire away!]

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

Here’s the letter that Professor Karen Musalo, Director of the Center for Gender & Refugee Studies at Hastings Law wrote to the NYT:

Re: https://www.nytimes.com/2024/05/23/briefing/addressing-immigration.html

by David Leonhardt, May 23, 2024

Before David Leonhardt writes another piece on immigration, he should make sure he has his facts straight. He erroneously claims Biden “changed the definition of asylum to include fear of gang violence.” Biden did no such thing. What his Justice Department did was overturn a Trump-era ruling attempting to foreclose asylum claims by victims of domestic and gang violence, regardless of their legal merits. That decision was widely criticized, including on your pages in an op-ed I co-authored with Jane Fonda. Attorney General Garland rightfully vacated it, leaving the issue to be resolved by regulations [which to date have not been issued].

Leonhardt is incorrect in his assertion that more “aggressive” moves will mitigate challenges at the border, or score points with voters who overwhelmingly oppose cruel and exclusionary policies. The Senate bill touted as a step in the right direction would have codified failed policies that only create more chaos.

Executive actions reportedly under consideration would similarly exacerbate operational challenges and inevitably get tied up in litigation.

And yes, Republicans’ sabotage of the bill was “transparently cynical.” Just as cynical, however, was the president’s choice to back anti-immigrant legislation he knew was doomed. In their attempts to out-Trump Trump, the president and his allies have betrayed their values and the voters who put them in office.

Karen Musalo

San Francisco, CA

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

Thanks, Dan and Karen! Turning Leonhardt loose on a subject he’s obviously unqualified to write about — “stunning ignorance” in the words of one world-renowned expert — is nothing short of journalistic malpractice on the part of the NYT!

Immigration is a serious topic with life or death implications for migrants and the future of our nation. It deserves serious, informed, professional journalism by experts who are familiar with the plight of forced migrants and the actual legal requirements for asylum and due process as well as the realities of the border and the anti-immigrant absurdities of our dysfunctional Immigration Courts and non-legally-compliant asylum adjudication system.

There are lots of well-qualified folks around who could inform the public. Needless to say Leonhardt is not one of them. Unhappily, few “mainstream media” journalists have the necessary creds. That’s one reason the toxic national debate is so dominated by right wing White Nationalist media spreading lies and myths with little critical pushback from the “MSM.”

Rachel SiegelEconomics Reporter Washington Post PHOTO: WashPost — Rachel Siegel
Economics Reporter
Washington Post
PHOTO: WashPost

Ironically, the same day’s Washington Post had an article by Rachel Siegel about how robust immigration of all types has saved the U.S. economy and how many economists believe Trump’s mindless, restrictionist, and likely illegal nativist policies could slow growth, devastate the U.S. workforce, and exacerbate inflation! https://www.washingtonpost.com/business/2024/05/20/trump-immigration-undocumented-economy/. At the same time, he would create chaos and waste billions in public funds.

Recently, I published a number of articles by experts debunking many of the very anti-immigrant myths that Leonhardt disingenuously repeats or enables:

🤯☠️🤮👎 POLITICOS’ “BIPARTISAN” LIES & FEAR MONGERING ABOUT IMMIGRATION MAKES THINGS WORSE! — “Rebuilding the U.S. immigration system to be both functional and humane requires dismissing harmful myths and inflammatory rhetoric in favor of truth and facts. Here’s the truth!” — The Vera Institute Of Justice ⚖️ Reports! 🗽

🇺🇸⚖️🗽 EXPLODING THE NEGATIVE “BIPARTISAN MYTHS” ABOUT ASYLUM SEEKERS: TRAC’S 10-YR. STUDY SHOWS THAT HUGE MAJORITY (2/3) OF ASYLUM SEEKERS GET FAVORABLE RESULTS IF (A BIG “IF”) THEY CAN GET A DECISION FROM EOIR — Representation Is Critical To Success — Hundreds Of Thousands Who Deserve To Stay Languish In Garland’s Endless Backlogs, While He Continues To Enable “Aimless Docket Reshuffling” (“ADR”), The Bane Of Due Process, Fairness, & Efficiency!

⚖️🗽 REV. CRAIG MOUSIN @ LAWFUL ASSEMBLY PODCAST URGES US TO TELL THE ADMINISTRATION & CONGRESS TO WITHDRAW ANTI-ASYLUM PROPOSED REGS: “Let’s give courage to those who recognize the benefits of a working asylum system. There are many positive ways to cut down on inefficiencies at the border!”

🇺🇸🗽👍 NICOLE NAREA @ VOX CORRECTS TOXIC “BORDER MYTHS” THAT DRIVE OUR LARGELY ONE-SIDED POLITICAL “DIALOGUE” ON IMMIGRATION!

🤯 MORE BAD ASYLUM POLICIES COMING? — Jeez, Joe, Stop The “Miller Lite” Nativist Nonsense & Fix Your Broken Asylum Adjudication System With Due Process Already! 🤯

🗽⚖️ EXPERT URGES U.S. TO COMPLY WITH INTERNATIONAL NORMS ON GENDER-BASED PROTECTION — Current “Any Reason To Deny” Restrictive Interpretations & Actions Are A Threat To Women Everywhere & Unnecessarily Bog Down Already Burdened System With Unnecessary Legal Minutia, Says Professor Karen Musalo In New Article!

https://immigrationcourtside.com/2024/05/03/%f0%9f%87%ba%f0%9f%87%b8%e2%9a%96%ef%b8%8f%f0%9f%97%bd%f0%9f%91%8d-uw-law-professor-erin-barbato-speaks-to-the-milwaukee-journal-sentinel-gutsy-practical-scholar-goes-where-politico/.

In one of many bad moments, Leonhardt uncritically “parrots” the oft-debunked fiction that changes in U.S. immigration policies and “deterrents” like walls, detention, and racially-driven cruelty are primary long-term “drivers” of forced human migration. Undoubtedly, in the complex interrelated world of migration, such policies do have some fairly marginal, largely short-term effects, causing changes in migration paths, adjustments in smuggling methods, changes in smuggling fees, more deaths and unreported irregular entries (when enforcement “gimmicks” are irresponsibly expanded), and enough “statistical variance” to allow proponents of these futile policies to falsely claim “victory” before the system reverts to a new “equilibrium.”

But the truth is inescapable, even if inconvenient for Leonhardt and other dilettantes: Human migration is a complex worldwide phenomenon driven by forces beyond the ability of any single nation, even one as powerful and influential as the U.S., to control by harsh deterrence and restriction, no matter how cruel, deadly, and wasteful. See, e.g., https://immigrationcourtside.com/wp-admin/about.php (“Migrants will continue to flee bombs, look for better-paying jobs and accept extraordinary risks as the price of providing a better life for their children. . . . No wall, sheriff or headscarf law would have prevented [forced migrants] from leaving their homes.”).

As cogently stated by Robert McKee Irwin, an immigration scholar at U.C. Davis:

Research shows that the United States’ immigration policies have never deterred migrants from coming to the country; they have only made the immigration process longer and more difficult.

https://www.ucdavis.edu/blog/curiosity/conversation-immigration-policies-do-not-deter-migrants-coming-us

Indeed, Leonhardt quite disingenuously ignores the fact that misguided “uber enforcement” policies are not only futile, but also increase trauma, suffering, and death for those seeking only to exercise their legal right to seek asylum. See, e.g., Human Rights First, “Trapped, Preyed Upon, and Punished: One Year of The Biden Administration Asylum Ban,” https://link.quorum.us/f/a/guoNlRSTVRVbYZ3FDvlfbA~~/AACYXwA~/RgRoMPIbP0RCaHR0cHM6Ly9odW1hbnJpZ2h0c2ZpcnN0Lm9yZy9ldmVudHMvcmVwb3J0YnJpZWZpbmctMXllYXJhc3lsdW1iYW4vVwNzcGNCCmZGIm1OZko_DEZSEmplbm5pbmdzMTJAYW9sLmNvbVgEAAAAAA~~.

Leonhardt also suggests, quite incorrectly, that Biden’s (limited) attempts to increase pathways for legal immigration and return to the rule of law at the border somehow benefitted and encouraged smugglers and cartels. NOTHING could be more wrong-headed!

It is Trump and his restrictionist allies and enablers who have been a huge boon for human smugglers! As legal pathways are eliminated or unreasonably restricted, the entire “protection” system falls into the hands of smugglers and other trans-border criminal organizations who become “the only game in town” for those seeking protection! Smuggling prices go up and the risks to migrants increase, even as profit margins for the smugglers skyrocket! Equally bad, law enforcement is diverted from real criminals to playing a bogus “numbers game” at the expense of those who seek only to have their life-determining claims heard fairly, timely, and humanely in accordance with the rule of law!

If our country builds a fair, timely, and humane system for considering asylum claims, something that succeeding Administrations have shamefully eschewed, the majority of asylum applicants will use it, which at the same time would allow border law enforcement to focus on real security issues rather than contrived ones. Similarly, more realistic and robust paths for legal immigration, both temporary and long term, will reduce the pressure and incentives for irregular migration. These measures would also tap into the truth about migration being ignored by politicos of both parties:

These [restrictionist] political reactions fail to grapple with a hard truth: in the long run, new migration is nearly always a boon to host countries. In acting as entrepreneurs and innovators, and by providing inexpensive labor, immigrants overwhelmingly repay in long-term economic contributions what they use in short-term social services, studies show. But to maximize that future good, governments must act -rationally to establish humane policies and adequately fund an immigration system equipped to handle an influx of newcomers.

http://time.com/longform/migrants/

Notably, the Biden parole program criticized by Leonhardt not only has been upheld in Federal Court, but has generally been praised and recognized by experts as a great, largely under appreciated, success in both creating an orderly process and reducing border pressures while benefitting American families and fueling our economy. See, e.g., https://www.fwd.us/news/chnv-parole/. (I’ll admit to not initially being a “fan,” but hey, results matter so I’ve come around). The most legitimate criticism is that it has been too limited both in terms of numbers and nationality restrictions!

Bad journalism promoting myths like those spouted by Leonhard misleads the public and enables politicos to get away with policies that are not only illegal, but often harm and even kill the very vulnerable migrants we are supposed to be protecting, or at the very least treating with fairness, respect, and human dignity. America and the migrants who still (against the odds) see us as a beacon of hope in a cruel world deserve better from the NYT!

There are sane, humane ways of solving complex immigration problems. See, e.g., https://immigrantjustice.org/staff/blog/humane-solutions-work-10-ways-biden-administration-should-reshape-immigration-policy. Ignoring them in favor of fear mongering and cruelty is irresponsible. Or, check out this thoughtful “reality based” proposal by Paul Hunker, until recently a Chief Counsel at ICE Dallas. https://www-dallasnews-com.cdn.ampproject.org/c/s/www.dallasnews.com/opinion/commentary/2024/05/22/rethinking-asylum-applicants-should-not-be-released/?outputType=amp.

Professors Erin Barbato, Sarah McKinnon, and Jorge Osorio of the University of Wisconsin – Madison (one of my alma maters) are actually working with forced migrants in the Darien Gap and Mexico to provide better information, care, and alert them to other viable pathways before they reach the U.S. border through their innovative interdisciplinary organization “Migration in the Americas Project.” See https://immigrationcourtside.com/2024/04/22/%F0%9F%87%BA%F0%9F%87%B8%F0%9F%97%BD%F0%9F%91%8F-filling-the-gap-migration-in-the-americas-project-u-w-madison-creative-interdisciplinary-approach-seeks-to-provide-migrants-with-better-info/.

My UW Law ‘73 classmate retired Wisconsin Judge Tom Lister and I have proposed “Judges Without Borders” as a step that should be high on the the bipartisan “immigration to do list” for Congress. See https://immigrationcourtside.com/2024/04/22/%F0%9F%87%BA%F0%9F%87%B8%F0%9F%97%BD%F0%9F%91%8F-filling-the-gap-migration-in-the-americas-project-u-w-madison-creative-interdisciplinary-approach-seeks-to-provide-migrants-with-better-info/.

Judge Lister also has a plan to donate patented “healthy, sustainable textile technology” developed during the pandemic that could be used to create good jobs in Mexico and other countries beyond our borders.

Professor Michele Pistone at Villanova Law has developed a “scalable” online training course (“VIISTA Villanova”) that is currently being used to graduate more highly-qualified non-lawyer “Accredited Representatives” to close the burgeoning and critical representation gap in Immigration Court, thus “delivering due process with efficiency.” She believes that with more funding, this program could be “ramped up” to produce 10,000 new Accredited Representatives annually! See, e.g., https://www1.villanova.edu/university/professional-studies/academics/professional-education/viista.html.

The Sharma-Crawford Clinic in Kansas City, MO, now has sent more than 150 “alums” of its “Immigration Court Trial Litigation College” out into the “real world” where they are defending due process, winning cases, saving lives, and training and inspiring others. See, e.g., https://immigrationcourtside.com/2024/04/28/%F0%9F%87%BA%F0%9F%87%B8%F0%9F%97%BD%E2%9A%96%EF%B8%8F%F0%9F%91%8D-report-from-kansas-city-the-sharma-crawford-clinic-immigration-court-trial-advocacy-college-reaches-new-heights/.

With so many brilliant, informed, and involved experts out here, with creative positive ideas for improving immigrant justice and restoring the rule of law, it is very disappointing that the NYT and Leonhardt have chosen to uncritically recycle and repeat cruel, failed, legally problematic proposals by irresponsible politicos that would make things worse. Rather, the media should be consulting the experts actually involved in immigration at the “grass roots level” and pressing politicos on both sides of the aisle and the Administration as to why they aren’t concentrating and investing in humane potential solutions rather than deadly and discredited “deterrence through cruelty!”

As Erica Bryant of the Vera Institute of Justice, someone who, unlike Leonhardt, is actually qualified to write about migration, stated in an article I recently republished:

This November, and beyond, voters need to reject lies that demonize immigrants and demand policies that treat each person with dignity and fairness, no matter where they were born.

🤯☠️🤮👎 POLITICOS’ “BIPARTISAN” LIES & FEAR MONGERING ABOUT IMMIGRATION MAKES THINGS WORSE! — “Rebuilding the U.S. immigration system to be both functional and humane requires dismissing harmful myths and inflammatory rhetoric in favor of truth and facts. Here’s the truth!” — The Vera Institute Of Justice ⚖️ Reports! 🗽

Obviously, neither Leonhardt nor the NYT editors got the message. They should!

Thanks again, Dan and Karen, for being the first to speak out and challenge Leonhardt’s dangerous, misleading, and highly irresponsible nativist nonsense!

🇺🇸 Due Process Forever!

PWS

05-24-24

🤯☠️🤮👎 POLITICOS’ “BIPARTISAN” LIES & FEAR MONGERING ABOUT IMMIGRATION MAKES THINGS WORSE! — “Rebuilding the U.S. immigration system to be both functional and humane requires dismissing harmful myths and inflammatory rhetoric in favor of truth and facts. Here’s the truth!” — The Vera Institute Of Justice ⚖️ Reports! 🗽

Erica Bryant, Associate Director of Writing:

https://www.vera.org/news/debunking-the-lies-politicians-say-about-immigrants

As critical elections approach, voters are being bombarded with harmful myths, misrepresentations, and outright lies about people who are immigrants. More than 45 million people living in the United States were born elsewhere. Despite their proven contributions to communities nationwide, people seeking office call them “invaders” and make campaign promises for the “largest domestic deportation operation in history.” Inflammatory talking points about “border security” and the “migrant crisis” come from candidates across the political spectrum.

What is missing from this rhetoric is simple: the truth. The United States has failed to align its immigration laws and practices with 21st-century realities, leaving a system that is cruel, dysfunctional, and widely criticized. Bringing the country’s approach to immigration in line with the needs of the moment and building an immigration system that is both functional and humane will require serious effort. False information distracts from the solutions that we know work.

Here’s the truth.

It is perfectly legal to request asylum. People who come to the United States border to ask for help are not breaking the law.

Asylum is a form of protection that allows people to remain in the United States and avoid deportation back to a country where they fear persecution or harm because of their identity, religion, or political beliefs. Under both U.S. and international law, people who face danger in their homelands have the right to go to other nations to seek safety and to have their requests for asylum considered.

Asking for asylum is not a “free ticket” into the United States.

Applying for asylum is a long and complex process. Asylum cases completed in fiscal year 2019 or later took an average of 5.2 years to resolve, according to unpublished analysis of government data conducted by Vera. Currently-pending removal cases have been on the docket for an average of 1.9 years. Dangerous conditions around the world have forced record numbers of people to flee their homes and seek safety. This increase in need, exacerbated by a decades-long lack of investment in infrastructure and capacity to humanely process asylum claims, has created an enormous backlog in processing requests. Vera’s unpublished analysis of government data showed that, as of January 31, 2024, there were 3,353,199 cases pending removal proceedings in the United States.

Undocumented people have far lower crime rates than U.S. citizens.

Political candidates often falsely link undocumented people to crime in the United States. Yet an extensive study of crimes in all 50 states and Washington, DC, from 1990 to 2014, found that undocumented immigration does not increase violent crime. A study of arrests in Texas found that, relative to undocumented people, U.S.-born citizens are more than twice as likely to be arrested for violent crimes, 2.5 times more likely to be arrested for drug crimes, and more than four times more likely to be arrested for property crimes. Another study in Texas found that the criminal conviction rate for undocumented immigrants was 45 percent below that of native-born Texans. Immigrants of any legal status are typically found to be less involved in violence than native-born Americans.

Undocumented people pay taxes and help prop up social security by paying into the system—without receiving benefits.

Undocumented people pay an estimated $31 billion dollars in federal, state, and local taxes each year, including billions of dollars into a social security system from which they can draw very few, if any, benefits. The Social Security Administration (SSA) itself estimated that it collected $13 billion in payroll taxes in 2010 from workers without documentation, while only disbursing about $1 billion in payment attributable to unauthorized work. In a 2013 report, SSA estimated that “earnings by unauthorized immigrants result in a net positive effect on Social Security financial status generally. . . . We estimate that future years will experience a continuation of this positive impact on the trust funds.”

Virtually no fentanyl has been seized from people seeking asylum.

Fentanyl overdoses are increasing in the United States, and real solutions will require investments in treatment and preventative health care infrastructure. Instead, far too many politicians seek cheap political points by falsely blaming people seeking asylum at the southern border for this serious problem. In fact, virtually no fentanyl has been seized from people seeking asylum. In 2023, 93 percent of fentanyl seizures occurred at official border crossings or legal checkpoints. Nearly all of these seizures involved people permitted to cross the border, and more than 70 percent were U.S. citizens.

People with pending immigration cases show up to their court hearings.

Evidence clearly shows that, over the past two decades, most immigrants have shown up for the immigration court hearings that determine whether they have legal standing to remain in the United States. They do not slip into the country and disappear, as some political leaders claim. In fact, those who attend immigration court outside detention, on what are known as “non-detained” dockets, almost always continue to appear for their hearings when they are able to secure legal representation. There is no need to confine people in costly and inhumane immigration prisons.

Not all people at risk of deportation cross the border without documentation. Visa holders, long-term permanent residents, and even U.S. citizens are at risk.

While the spotlight often shines on people who cross the southern border without documentation, there are many ways that people can face the threat of deportation in the United States. Indeed, there are 22 million people in the United States who are at risk of being separated from their families and sent to countries where they may face danger. Tens of thousands of children who were adopted from outside the United States, for example, do not have documentation and are vulnerable to deportation because their complex citizenship paperwork was improperly filed. Additionally, more than one million people were brought to the United States as children by parents who entered the country without documentation or overstayed their visas. And, in 2022, more than 850,000 people from countries around the world overstayed their visas, making their continued presence in the United States unauthorized. Lawful permanent residents, current visa holders, and even U.S. citizens have been subjected to the risk of deportation and forced to defend their right to remain home with their families and in their communities.

Many people at risk of deportation actually have a legal right to remain in the United States—but are deported anyway.

Unlike in criminal court, people facing deportation in immigration court are not entitled to an attorney if they cannot afford one. Immigration attorneys can cost thousands of dollars, making them unaffordable for many. As a result, people seeking asylum, longtime legal residents, parents of U.S. citizens, and even small children are forced to appear in immigration court without an attorney to protect their rights. This makes it much more likely that they will be deported, even if they could have established a legal right to stay in the United States. The Fairness to Freedom Act, which was introduced in Congress last year and would establish a right to federally funded attorneys for all people facing deportation, would help fix this injustice.

Immigrants participate in the labor force and start businesses at higher rates than the native-born population.

One in six people in the United States workforce are immigrants. In fact, immigrants participate in the labor force at a higher rate than the U.S.-born population. Immigrants are also more likely to start businesses than native-born U.S. citizens. Furthermore, millions of people in the United States are employed by immigrant-founded and immigrant-owned companies.

People in the United States view immigration as a positive that benefits the country, and they support protections for people fleeing danger.

The majority of the public believes that immigration brings benefits to the United States, including economic growth and enriching culture and values. Nearly three-quarters of people polled said that people immigrate to the United States for jobs and to improve their lives, and more than half say that the ability to immigrate is a “human right.” Multiple polls show that the majority of people in the United States support protections for people who are trying to escape persecution and torture in their homelands. According to one Pew Research Center poll, 72 percent believe that accepting civilians trying to escape war and violence should be an important goal of U.S. immigration policy.

The United States has much work ahead to reform its dysfunctional and often cruel immigration system. This November, and beyond, voters need to reject lies that demonize immigrants and demand policies that treat each person with dignity and fairness, no matter where they were born.

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

Erica’s “spot on” last sentence is certainly worth repeating:

This November, and beyond, voters need to reject lies that demonize immigrants and demand policies that treat each person with dignity and fairness, no matter where they were born.

While migrants might be the “easy target” of politicos and nativists, because they are vulnerable and “the usual scapegoats” for problems created or fostered by those very politicos and nativists themselves, in the end we ALL are the targets of those who want to inflict gratuitous cruelty while destroying our precious democracy.

As Dr. Martin Luther King, Jr., said “Injustice anywhere is a threat to justice everywhere.” Each of us has a vested interest in “not looking the other way” while our fellow humans unfairly are stripped of their rights and humanity with “harmful myths, misrepresentations, and outright lies.” YOU could be “next on the list!”

🇺🇸 Due Process Forever!

PWS

05-22-24

🇺🇸⚖️🗽 EXPLODING THE NEGATIVE “BIPARTISAN MYTHS” ABOUT ASYLUM SEEKERS: TRAC’S 10-YR. STUDY SHOWS THAT HUGE MAJORITY (2/3) OF ASYLUM SEEKERS GET FAVORABLE RESULTS IF (A BIG “IF”) THEY CAN GET A DECISION FROM EOIR — Representation Is Critical To Success — Hundreds Of Thousands Who Deserve To Stay Languish In Garland’s Endless Backlogs, While He Continues To Enable “Aimless Docket Reshuffling” (“ADR”), The Bane Of Due Process, Fairness, & Efficiency!

Austin Kocher, Ph.D.
Research Assistant Professor
TRAC-Syracuse
PHOTO: Syracuse U.

From Professor Austin Kocher @ Linkedin:

New Report! “Two-Thirds of Court Asylum Applicants Found Legally Entitled to Remain.”

Out of 1M+ asylum cases decided by immigration judges over the past decade, 685,956 (66%) were legally entitled to remain in the United States due to asylum or other relief.

https://trac.syr.edu/reports/742/

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

Remember, this is in a system that has, over decades, been intentionally rigged, manipulated, and skewed AGAINST legal asylum seekers, particularly those of color from certain arbitrarily “disfavored” countries! (Think Haiti, The Northern Triangle, and many African Nations). While this anti-asylum bias has “peaked” in GOP Administrations, Dems have also been guilty including the Biden Administration’s flailing, legally problematic efforts to abuse the asylum adjudication system as a “deterrent” to those legally seeking asylum!

Trial By Ordeal — The U.S. Asylum system over the past two decades has prided itself in making the experience of asylum seekers as restrictive, difficult, complex, arcane, arbitrary, and “user unfriendly” as possible for many of the most vulnerable. Even so, courageous asylum seekers who can actually get a decision persevere and succeed against the odds! What if Administrations of both parties worked to make the system fair and timely, rather than trying to use it as a false “deterrent?” Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

Austin’s post triggered this exchange between Beckie “Deportation Defender” Moriello and me on LinkedIn:

BECKIE: It’s really higher than that, once we factor in all the wrongfully denied cases for clients who can’t afford to appeal.

PWS: Thanks for speaking truth, Beckie! If true asylum experts were on the BIA, IJs were experts who applied or were held by the BIA to the Cardoza, Mogharrabi, Kasinga, 8 CFR 208.13 framework, the asylum adjudication system had dynamic leadership, and individuals were competently represented, many more cases would be granted much more efficiently and backlogs would eventually come under control and start to diminish. In fact, individuals should be considered eligible for asylum even where persecution on a protected ground is “significantly less than probable” — the 10% rule! Moreover, asylum seekers who testify credibly are supposed to be given “the benefit of the doubt.” These and the presumption of future persecution established by past persecution, thereby shifting the burden to DHS, are still too often ignored, misapplied, or manipulated against asylum seekers. There is nothing that will make a backlog at least a decade in the making disappear overnight. But, a legitimate, legally compliant, properly generous asylum adjudication system would benefit all involved. It’s sad that Biden, Harris, Garland, and Mayorkas are afraid to comply with the rule of law for asylum seekers and other migrants!

Beckie “Deportation Defender” Moriello ESQUIREPHOTO: Linkedin — Beckie “Deportation Defender” Moriello ESQUIRE
PHOTO: Linkedin

🇺🇸Due Process Forever!

PWS

05-21-24

⚖️🗽 REV. CRAIG MOUSIN @ LAWFUL ASSEMBLY PODCAST URGES US TO TELL THE ADMINISTRATION & CONGRESS TO WITHDRAW ANTI-ASYLUM PROPOSED REGS: “Let’s give courage to those who recognize the benefits of a working asylum system. There are many positive ways to cut down on inefficiencies at the border!”

Listen here:

https://www.lawfulpod.com/restrictions-to-an-already-compromised-asylum-system/

MAY 17, 2024

Restrictions To An Already Compromised Asylum System

This week we talk about a proposed rule from the Biden Administration that may change asylum proceedures and allow adjudicators to turn away people without proper research on their background.

Read the proposed rule: https://www.federalregister.gov/documents/2024/05/13/2024-10390/application-of-certain-mandatory-bars-in-fear-screenings

Read the NIJC’s breakdown: https://immigrantjustice.org/press-releases/nijc-denounces-new-biden-rule-adding-restrictions-already-compromised-asylum-system

Contact your Representative: https://www.house.gov/representatives/find-your-representative

Contact your Senator: https://www.senate.gov/senators/senators-contact.htm

Craig’s paper he mentions: Health Inequity and Tent Court Injustice

Next week we should have a call to action with templates for you to help submit your comment. Watch this space!

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

Thanks, Craig, for speaking up! Why does the Administration keep proposing likely unlawful restrictionist regulations that won’t help the situation at the border?

As Craig notes, there are “many positive ways” to improve the treatment of legal asylum seekers and promote fair and efficient consideration of their claims! Why is the Biden Administration “tuning out” the voices of those with border expertise who are trying to help them make the legal asylum system work?

🇺🇸 Due Process Forever!

PWS

05-20-24

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

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🇺🇸Due Process Forever!⚖️🗽

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“Sir Jeffrey” from NYC:

PWS from Boothbay Harbor, ME (Linekin Bay Side):

DPF!

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Here’s a report on the night’s activities from AYUDAS’s amazing Executive Director Paula Fitzgerald:

Here’s the text of my opening remarks:

Ayuda’s Film Screening of The Courtroom – Opening Remarks by Paul Wickham Schmidt

Georgetown University, McCourt School of Public Policy

September 18, 2024

Due Process Forever!😎

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Well, friends, since “inception” on December 22, 2016:

To mark the occasion, here’s a “reprint” of one of my favorites from that first month, December 2016:

🇺🇸 Thanks for reading and engaging, best wishes and, of course, “Due Process Forever!”

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Catherine writes:

🇺🇸 Due Process Forever!

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From NBA.com:

🇺🇸 Due Process Forever!

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Eduardo Porter writes in WashPost:

Gordon F. Sander, journalist and historian, also writes in WashPost, perhaps somewhat less optimistically, but with the same historical truth in the face of current political lies and gross misrepresentations:

🇺🇸 Due Process Forever!

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Dan writes on Substack:

Here’s the letter that Professor Karen Musalo, Director of the Center for Gender & Refugee Studies at Hastings Law wrote to the NYT:

🇺🇸 Due Process Forever!

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Erica Bryant, Associate Director of Writing:

🇺🇸 Due Process Forever!

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From Professor Austin Kocher @ Linkedin:

🇺🇸Due Process Forever!

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Listen here:

🇺🇸 Due Process Forever!

Related posts:

**Ayuda’s Film Screening of The Courtroom – Opening Remarks by Paul Wickham Schmidt**