"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
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!”💕
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
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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!
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 RealmEduardo Porter Columnist and Editorial Board Member Washington Post PHOTO: WashPost
“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 PHOTO: www.gordonsander.com
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:
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 areseeking 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.
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
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.
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.
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!
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings Law
Read Karen’s newly-released article “Aligning United States Law with International Norms Would Remove Major Barriers to Protection in Gender Claims” in the 2024 Edition of the International Journal of Refugee Law. Here’s the abstract:
A B ST R A CT
The protection of women and girls fleeing gender-based harms has been controversial in the United States (US), with advances followed by setbacks. The US interpretation of particular social group and its nexus analysis, both of which diverge from guidance by the United Nations High Commissioner for Refugees (UNHCR), is the most significant barrier to protection. It has become almost impossible for women and girls to rely upon the particular social group ground because of current requirements that social groups not only be defined by immutable or fundamental characteristics, but also be socially distinct and have particularity. Establishing nexus is also a significant obstacle, with the US requirement of proof of the persecutor’s intent. In the first month of his administration, President Biden issued an executive order on migration, which raised hopes that these obstacles to protection would be removed. The order committed to protecting survivors of domestic violence and to issuing regulations that would make the US interpretation of particular social group consistent with international standards. The target date for the regulations was November 2021, but they have yet to issue. This article examines how the evolution of the US interpretation of particular social group and nexus has diverged from UNHCR recommendations. It shows how protection has been denied in gender cases involving the most egregious of harms. The article concludes by providing recommendations for realignment with international standards, which set a benchmark for evaluating the promised Biden administration regulations on the issue.
Karen’s highly readable “spot on” article prompted this additional thoughtful comment from my friend and Round Table colleague Hon. “Sir Jefferey” Chase:
Hi Karen: Wonderful article! So clear, so logical, and just so correct! Thanks as always for this. (And I’m extremely honored to find myself in several of your footnotes – thank you!)
Create a “Charming Betsy” Reg Requiring Adherence to International Law:Since 1804, the Supreme Court’s decision in Murray v. The Schooner Charming Betsy has required domestic statutes to be interpreted consistently with international law whenever possible.As the Supreme Court in INS v. Cardoza-Fonseca observed that in enacting the 1980 Refugee Act, “one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees,” it would seem that interpreters of our asylum laws should look to international law interpretations of that treaty for guidance.Recent examples in which this has not been the case include the just-published “death to asylum” regulations that will completely gut the 1980 Refugee Act of any meaning; as well as regulations that bar asylum for conduct falling far, far short of the severity required to bar refugee protection under international law (which a federal district court blocked in Pangea v. Barr).
As the Board seems disinclined to listen to the Supreme Court on this point, it is hoped that the Biden Administration would codify the Charming Betsy doctrine in regulations, which should further require the BIA, Immigration Judges, and Asylum Officers to consider UNHCR interpretations of the various asylum provisions, and require adjudicators to provide compelling reasons for rejecting its guidance.
Do you think there is a way to use Karen’s article to make this into a talking point across the advocacy community? I think there’s merit to trying to normalize an idea over time. Just a thought.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
I agree, Jeffrey! Ironically, as Karen shows, “normalizing” refugee and asylum processing to bring it into alignment with the Convention was one of the driving forces behind enactment of the Refugee Act of 1980. Indeed, it’s reflected in a key early interpretation of the Act by the Supremes in INS v. Cardoza-Fonseca (successfully argued by our friend and Round Table colleague Hon. Dana Marks, a “Founding Mother of U.S. Refugee Law”). In rejecting the USG’s restrictive interpretation, the Court consulted the U.N. Handbook while making the point that the refugee definition was to be applied generously so that even those with only a 10% chance of persecution could qualify.
I also note that the abandonment of the “Acosta test,” which I relied on in Kasinga, in favor of a more convoluted, restrictive, and ultimately intellectually dishonest approach, went “into high gear” after the “Ashcroft purge” had removed the core of BIA Judges who spoke up for asylum rights and protection, even when in dissent!
Unfortunately, Administrations of both parties have feared honest and robust implementation of the Refugee Act that truly follows the “spirit of Cardoza and its BIA progeny, Matter of Mogharrabi.” They all have had their “favored” and “feared” groups of refugees and asylees, some more than others.
This, of course, breeds huge inconsistencies and arbitrary adjudications, a problem exposed well over a decade ago by Professors Schoenholtz, Schrag, and Ramji-Nogales in their critical seminal work Refugee Roulette describing the largely unprincipled and politicized operation of our system for adjudicating protection claims.
At some level, all Administrations have given in to the false idea that protection of refugees is politically perilous and that consequently the law should be interpreted and manipulated to “deter” the current “politically disfavored” groups of refugees. Not surprisingly, the latter are usually those of color, non-Christian religions, or from poorer countries where the mis-characterization of groups of legitimate refugees as “mere economic migrants” has become routine. Too often, the so-called “mainstream media” accepts such negative characterizations without critical analysis.
Unfortunately, the Biden Administration has regressed from a somewhat enlightened beginning with the never-promulgated “gender based regulation” mentioned by Karen to a position of fear, desperation, and ultimately “false deterrence.” Apparently, they perceive that GOP nativist lies and shamless fear-mongering combined with their own failure to boldly reform and materially improve the asylum processing system under their control are “scoring points” with the electorate.
The latest misguided proposal being considered in the White House would grotesquely miss the mark of addressing the real glaring problems with our asylum system at the border and beyond. That is the overly restrictive interpretations and applications of the refugee definition, too many poorly-qualified and poorly-trained adjudicators, over-denial leading to protracted litigation and inconsistent results, uninspiring leadership, and a stubborn unwillingness to set up the system in compliance with international rules so that significant numbers of qualified refugees applying at the border can be timely and properly admitted to the U.S. where, incidentally, their skills and determination can contribute greatly to our economy and our society.
The latest bad idea is truncating the already overly-summary and poorly run asylum process in apparent hopes of more quickly denying more potentially valid claims with less consideration. See, e.g.,https://www.politico.com/news/2024/05/08/biden-migrants-asylum-changes-00156865. Far from being a panacea for the much-feared and highly distorted “border issue,” it eventually will aggravate all of the problems highlighted by Karen.
One thing it won’t do, however, is stop forced migrants from coming to the United States, even if they must abandon our broken legal system to do so. That’s what forced migrants do! Pretending otherwise and misusing our legal protection system for rejection won’t “deter” the reality of forced migration.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Sir Jeffrey” Chase reports:
Cert granted in Bouarfa v. Mayorkas
Hi all: Thanks to Lory [Rosenberg] for flagging that cert was granted today [April 29] by the Supreme Court in Bouarfa v. Mayorkas, in which our group filed an amicus brief in January.
As a reminder, the issue involves whether a revocation of a visa petition by USCIS for non discretionary criteria can be reviewed by the courts. A straight-out non-discretionary denial by DHS of a visa petition can be reviewed by the circuit courts; however, if DHS approves the petition and revokes it a day later for a non-discretionary reason, under the Eleventh Circuit’s reading, the petition can no longer be appealed to the circuit. (The Sixth and Ninth Circuits disagree).
Best, Jeff
Find all the relevant links, including to our amicus brief, here:
Nevertheless, Cruz argues correctly that Isidro-Zamorano, 25 I. & N. Dec. 829, leaves open the possibility for adjudication of the merits of a cancellation application where the qualifying relative aged out of qualifying status because of undue procedural delays. As explained below, the facts are unclear as to why briefing and decision were delayed. As such, we remand for the BIA to address in the first instance whether the delays on appeal in this case were undue and attributable to the agency, and if they were, for the BIA to review the IJ’s denial of cancellation of removal in the first instance.
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This is yet another in a long list of examples of how the Circuit actually did a better job than the BIA of locating, understanding, and following binding BIA precedent potentially favorable to the respondent!
I wouldn’t bet on today’s BIA adopting on remand an interpretation favoring the applicant, even though, as pointed out by the Second Circuit, such an interpretation would be legally possible. Perhaps, this is a case where amici need to “weigh in” before the BIA on remand.
In my mind, it also raises questions of whether the numerous unnecessary delays, backlogs, and confusion caused by the BIA’s failure to follow the statutory language on the “stop time rule” for 42B cancellation, as twice found by the Supremes, could be categorized as “unnecessary — and totally foreseeable — delay?” Both courts and advocates warned the BIA — in vain — that ignoring the clear language of the statute was a huge mistake that would create more unnecessary disorder in the already dysfunctional EOIR system! But, in their haste to rule in favor of DHS Enforcement, the BIA once again ignored the experts.
🇺🇸 Due Process Forever!
PWS
04-07-24
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ADDENDUM FROM “SIR JEFFREY:”
“Thanks, Paul (and hi to everyone!), but credit to Ray Fasano for flagging this.
Best, Jeff”
Thanks, Ray!
H. Raymond Fasano, Esquire PHOTO: Super Lawyers Profile
“Singh experienced multiple physical attacks and death threats over an eight-month period, from November of 2014 to June of 2015. No reasonable factfinder would conclude that Singh did not experience serious harm rising to the level of persecution. … For all these reasons we find that the record compels a finding that Singh suffered harm rising to the level of persecution. … [T]he BIA did not independently analyze relocation and determine that the government met its burden. Rather, the BIA expressly adopted the IJ’s reasons for finding that internal relocation was safe and reasonable. In doing so, the BIA adopted the IJ’s flawed relocation analysis, which did not afford Singh the presumption of past persecution or shift the burden to the government to prove that Singh can safely and reasonably relocate within India. … In sum, because the BIA erred in its relocation analysis, we grant Singh’s petition to review his claim for asylum and remand to the BIA for consideration in light of Singh v. Whitaker, 914 F.3d 654. … For the reasons set forth above, we GRANT Singh’s petition in part and REMAND to the BIA to consider (1) whether Singh is eligible for asylum because he suffered past persecution on account of statutorily protected grounds by the government or individuals whom the government was unable or unwilling to control; (2) if so, whether the DHS rebutted the presumption of a well-founded fear of future persecution; and (3) whether Singh is entitled to withholding of removal.”
“The agency entirely overlooked evidence material to the hardship determination in this case: evidence regarding Mendez’s serious back injury and its implications for his ability to support his qualifying relatives through work in El Salvador. … The BIA’s decision is VACATED and the case is REMANDED for further proceedings consistent with this order.”
H. Raymond Fasano, Esquire PHOTO: Super Lawyers Profile
—Daniel M. KowalskiEditor-in-ChiefBender’s Immigration Bulletin (LexisNexis)
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What if a brain surgeon or a heart surgeon were routinely engaging in “surgical malpractice?” Wouldn’t it be a cause for grave concern?🤯
Almost every week, sometimes multiple times, the BIA mishandles the basics in potential “life or death” cases. Yet, Garland somehow shrugs it off! This not only adds to the “dehumanization” of migrants (their lives don’t count), but also badly skews the statistical profile that undergirds much of the misguided immigration (non) dialogue.
If the anti-immigrant, anti-asylum, huge “over-denial” problem at EOIR were addressed with better qualified judges and adjudicators, it would become apparent that many more, probably a majority, of those caught up in the dysfunction at EOIR and the Asylum Office are qualified to remain in the U.S. in some status. And, proper positive precedents would guide practitioners, ICE Counsel, Immigration Judges, and Asylum Officers to correct results without protracted litigation that eventually burdens the Courts of Appeals, causes avoidable remands, fuels “Aimless Docket Reshuffling,” and contributes mightily to the mushrooming EOIR backlog!
As a result, these cases could be prepared, prioritized, granted, and individuals could get on with their lives and maximize their human potential to help our nation — just as generations before them have done including the ancestors of almost all Americans! How soon some of us forget!
The real, largely self-created, “immigration crisis,” is NOT insufficient “deterrence, detention, and cruelty” at the border! It’s the grotesque failure of all three branches of Government to insist on a fair, timely, well-staffed, professionally-managed, due-process-compliant adjudication, review, and resettlement system for asylum seekers and other immigrants. It’s also the ongoing attempt to “cover up” and minimize our Government’s mistreatment of asylum seekers, particularly those asserting their legal right to apply at our borders and in the interior regardless of status!
The racially-driven “targeting” of asylum seekers at the border is a ruse designed to deflect attention from the realities of human migration, what drives it, and the failure of governments across the board to come to grips with them and to fulfill their legal responsibilities to treat all persons fairly, humanely, and in accordance with correct interpretations and applications of the law!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Here’s additional commentary on Singh from my Round Table ⚖️⚔️ colleague “Sir Jeffrey” Chase:
The IJ was really determined to deny on this one. And I guess Vandyke had filled his quota of once in a lifetime for finding fault with the government, and thus had no choice but to dissent.
How would YOU like to face a system “determined to deny” with your life on the line? How would Garland like it?
Actually, under the generous “well-founded fear” standard applicable to asylum (Cardoza-Fonseca/Mogharrabi) and the authoritative guidance in the U.N. Handbook on adjudication, applicants like Singh who testify credibly are supposed to be given “the benefit of the doubt.” Garland has, quite improperly, like his immediate predecessors, allowed this key humanitarian legal principle to be mocked at EOIR! Instead, as cogently pointed out by “Sir Jeffrey,” here the IJ and the BIA actually went the “extra mile” to think of “any reason to deny” — even totally specious ones!
Also, half-baked, legally deficient “reasonably available internal relocation analysis”is a long-standing, chronic problem at EOIR, despite a regulation setting forth analytical factors that should be evaluated. Few, if any, such legitimate opportunities are “reasonably available” in most countries sending asylum applicants!
Moreover, once past persecution is established, the DHS has the burden of showing that there is a reasonably available internal relocation alternative, something that they almost never can prove by a preponderance of the evidence! Indeed, in my experience, the DHS almost never put in such evidence beyond rote citations to generalized language in DOS Country Reports!
The “judicial competency/bias” problems plaguing EOIR are large and well documented. Yet, Garland pretends like they don’t exist!
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
The Round Table of Former Immigration Judges Statement on EOIR’s Prior Restraint on NAIJ Speech
As former Immigration Judges and BIA Board Members we strongly protest the unconstitutional prior restraint imposed by the Executive Office for Immigration Review (EOIR) which effectively silences the officers of the National Association of Immigration Judges (NAIJ) and prohibits them from providing information or engaging in advocacy involving the complex workings of our nation’s Immigration Court system. We call for immediate reversal of this misguided policy.
In late February 2024 EOIR advised NAIJ officers that they could not speak publicly without obtaining advance permission through the agency’s “”SET” (Speaking Engagement Team) process, a requirement which was never imposed before. This is a cumbersome, multistep process which requires Immigration Judges to seek permission from their supervisors, the SET unit, and sometimes even EOIR’s Ethics team and the Office of Policy. It provides no time frames for decisions nor any opportunity for review of adverse determinations. It is a process which is wildly incompatible with the practical realities involved in responding to media or congressional inquiries which often involve extremely short deadlines, sometimes mere hours or days. Mandating union officers use this process is a thinly disguised gag order.
This step is a dramatic departure from a precedent of more than 50 years, since NAIJ was established in 1973 and was never previously mandated to seek prior approval for appearances or speech. It ignores the uncontroverted fact that NAIJ officials scrupulously provide disclaimers indicating that they are not speaking on behalf of EOIR [or its parent, the Department of Justice (DOJ)] or articulating any position except that held by NAIJ members. It unfairly penalizes NAIJ officers who risk personal discipline for insubordination should they fail to comply but are then hampered in the duties owed to their union members when they remain silent.
NAIJ has played a pivotal role fostering the independence and increased professionalism of the Immigration Courts. It brought home to Congress the crucial function that IJs serve in the deportation and removal process, not as prosecutors but rather as neutral arbiters. This resulted in a change in job title from Special Inquiry Officer to Immigration Judge in 1996, with a concomitant enhanced special pay rate intended to broaden and improve the candidate pool for new judges. NAIJ was a crucial player in efforts to protect the independence of the Immigration
Courts in 2002 by leading the successful effort to keep the court independent from the newly created Department of Homeland Security despite strong opposition to that end by the administration and DOJ. At that time, NAIJ argued presciently that the establishment of an Article I Court was the only enduring way to safeguard the sanctity of these courts which hear “death penalty cases in a traffic court setting.” While NAIJ did not succeed in achieving that lofty goal then, legislation to do just that is currently pending in Congress, largely due to NAIJ’s tireless advocacy and coalition building. NAIJ’s voice in the media often stands alone explaining the practical implications of the complex workings of our immigration removal laws since DOJ eschews comments despite the American standard in jurisprudence which emphasizes transparency in its tribunals. NAIJ is the only spokesperson for IJs in the field, who have the first-hand view of court operations. Without NAIJ speech, no views from these benches in the trenches will be heard.
Perhaps worst of all, this policy deprives the American public of the views of an important, informed group which can shed light on the realities of the implementation of immigration laws and policy at a time when public scrutiny is at an all-time high and accurate factual information scarce. Under this new policy, NAIJ officers cannot even speak at educational or professional seminars or other public events without DOJ approval and instruction as to precisely what they can or cannot say.
Government employees do not surrender their First Amendment rights when they take office. To the contrary, their duty to educate the public is heightened and their voice enhanced by their informed opinions and expertise.
We urge EOIR to restore NAIJ’s important voice and revoke this new policy. ###
The Round Table of Former Immigration Judges is composed of 56 former Immigration Judges and Appellate Immigration Judges of the Board of Immigration Appeals. We were appointed and served under both Republican and Democratic administrations. Members of our group have served in training and management roles at EOIR. Several of our members were officers and leaders in NAIJ and were instrumental in guiding NAIJ to accomplish the achievements described above. Combined we have decades of experience and unique expertise in the immigration court system and the field of immigration law.
For media inquiries, please contact Hon. Dana Leigh Marks (ret.) at danamarks@pobox.com or (415) 577-9831
3/25/24
Hon. Dana Leigh Marks U.S. Immigration Judge (Retired) San Francisco Immigration Court Past President, National Association of Immigration Judges, Member Round Table of Former Immigration JudgesKnightess of the Round Table
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Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
MINI-ESSAY: NAIJ IS AN ESSENTIAL FORCE FOR JUDICIAL INDEPENDENCE
By Judge (Ret.) Jeffrey S. Chase
March 25, 2024
In Matter of A-R-C-G-, the BIA at footnote 16 recognized that AILA, UNHCR, and CGRS in their amicus briefs had all argued that gender alone should be sufficient to constitute a valid PSG in the matter. However, the Board chickened out, stating that because they were recognizing the narrower group stipulated to by DHS, “we need not reach this issue.”
I think the real proof of the validity of gender per se as a PSG is found in what happened after Sessions issued Matter of A-B-. With A-R-C-G- vacated, IJs all around the country began issuing detailed written decisions recognizing gender plus nationality, and explaining why such group met all of the legal requirements. This was done by IJs with very different grant rates, across different circuits, and included at least one ACIJ. And remember, this was done under an AG that clearly didn’t want IJs to reach that conclusion.
Which allows me to segue into our next issue: a major reason that IJs felt empowered to issue those decisions that were clearly not to the AG’s liking was due to the decades of effort by the NAIJ on behalf of judicial independence. Our public statement, prepared by our esteemed colleague Judge Dana Marks with input from others in our group, criticizing EOIR’s recent gag order on NAIJ officers, who for the first time will now be required to request agency permission to speak publicly, is a powerful reminder of the essential role played by NAIJ in protecting judicial independence, promoting due process and fundamental fairness, and, ultimately, saving lives of those seeking justice from our nation.
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Thanks to Dana, “Sir Jeffrey,” and all our other wonderful Round Table colleagues for speaking out so forcefully in favor of due process for all and judicial independence!
Under Garland, the BIA’s approach to gender-based asylum has too often remained tethered to the past. 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
Hon. “Sir Jeffrey” S. Chase reports to the Round Table⚔️🛡️:
Hi all: Another win to report, in a First Circuit case in which we filed a joint amicus brief with immigration law professors (and some in our group actually fit within both categories!).
However, the court declined to address our argument regarding the correct nexus standard for withholding claims (as opposed to asylum claims). The reason is that the court found that the BIA misstated one of the petitioner’s particular social groups, such that (according to the circuit court):
In sum, the BIA rejected a PSG of its own devising and not the social group Ferreira advanced. Its characterization substantively altered the meaning of Ferreira’s proffered PSG and amounts to legal error.
The court directed:
On remand, the BIA should carefully consider Ferreira’s gender-based PSG in light of our decisions in De Pena-Paniagua and Espinoza-Ochoa.
Both of those cited decisions were quite favorable to the petitioners.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
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Fear mongering and myth making by politicos of both parties, with the connivance of the media, deflect attention from the real problem: a dysfunctional U.S. asylum adjudication system that hugely and disingenuously over-rejects and under-protects, in addition to being too slow and unconstitutionally inconsistent. Thus, both parties intentionally skew the statistics against asylum seekers and feed racially-driven nativist “talking points” about the border!
The BIA/OIL claim that the gender-based psg is not recognizable is utterly preposterous!It took me fewer than 5 minutes of internet research to find this very recent Trinidad government report recognizing that gender-based violence is an endemic and well-documented problem that disproportionately affects women and girls in Trinidad. While the report sets forth an “aspirational multi-year plan” to address the problem (“willing to protect”), there is no indication that the plan is reasonably effective at present (“but unable to do so at present”).
Here is some other “choice commentary” from Round Table members:
“A win is a win–again ‘calling’ the BIA on doing the wrong thing!”
“Great job, Team!! Let’s keep up this winning streak.”
“Wow – great! As Paul would say, another bad Garland/BIA Fiasco. Making up a psg and then denying relief because of it. Funny if it were not so tragic!“
“Yes, especially when they are telling IJs they can’t even determine what PSG fits the facts of the case unless the Respondent gets it just right! Yet they can make up whatever they want and then say it doesn’t fit the facts or isn’t cognizable!”
“When we were at the International Judges conference that [Paul] organized at Georgetown, all of the international judges said that gender was a recognized psg in their countries—even the countries where women are discriminated against and/or persecuted!”
“Like most of you, I am at a loss to understand how gender, alone, does not meet every requirement of PSG. The BIA position on this is inexplicable, and IMO, at minimum, borders on frivolous.“
Roger that! Intentionally ignoring the obvious and failing in the duty to consistently recognize and prioritize many easy grants of asylum and other protection is the “elephant in the room” for the U.S. justice system!
No wonder spineless politicos, judges, and the media want to shift attention away from their shared responsibility for a glaringly unjust and inept asylum system to blame the hapless victims of their collective failure — whose lives and futures are on the line!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Hon. “Sir Jeffrey” Chase reports:
Hi all: The Supreme Court just issued its opinion in Wilkinson v. Garland, in which our group filed an amicus brief. The Court held that the exceptional and extremely unusual hardship determination in cancellation B cases (involving non-LPRs) is a mixed question of fact and law, and is thus reviewable by circuit courts on appeal. The Court thus reversed the Third Circuit’s determination that it lacked jurisdiction.
The decision was 6-3. Sotomayor wrote the majority opinion; Jackson wrote a concurring opinion, and Roberts and Alito wrote dissenting opinions.
Our amicus brief argued:
In amici’s experience, whether the facts of a particular case satisfy the “exceptional and extremely unusual hardship” eligibility criteria for cancellation is a mixed question of law and fact.
This decision will have a major impact on cancellation B cases, as the Board’s hardship determinations will now be subject to wide circuit court review.
This case makes a huge difference! Circuit review will ratchet up the pressure on the BIA to cut the “any reason to deny” BS 💩 and start doing a quality review in every case! If not, given the number of cancellation cases in the system, there are going to be lots more Circuit remands that will jack the backlog even higher!
As put by one “Round Tabler,” this will “impact the scholarship and often times lack of analytical rigor by the Board, knowing that it is no longer completely insulated from review of its hardship determinations.” You betcha!
And don’t ever underestimate the adverse impact on due process and justice that occurs when, knowing that its decisions are “immune” from judicial review, the BIA is “pushed by the political powers that be” to cut corners, “crank the numbers,” and “keep the removal assembly line moving!” That’s why political control over the BIA’s decision-making has such an outsized adverse impact on justice for immigrants and undermines the key constitutional due process principle of “fair and impartial justice for all.”
In Memory of The Honorable Rosalind K. Malloy 1942 – 2024
Obituary
The Honorable Rosalind K. Malloy, of Marlton, NJ, passed away on February 7, 2024, at the age of 81. Loving daughter of the late Daniel and Annie. Cherished sister of Dr. Tyrone Malloy, and predeceased by Ann, Daniel, Joyce, and Marcus. Adored by many nieces and nephews. Judge Malloy was appointed as an Immigration Judge in December 1998. Prior to her appointment to the Immigration Court in Philadelphia, Judge Malloy served as an Immigration Judge at the Immigration Court in Los Angeles from December 1998 to December 2001. She received a Bachelor of Arts degree in 1964 from Hunter College, City University of New York; a Master of Arts degree in 1971 and a Masters of Education degree in 1975, both from Teachers College, Columbia University; and a Juris Doctorate in 1979 from Rutgers University. Judge Malloy was an assistant district counsel with the former Immigration and Naturalization Service in New York from 1995 to 1998. From 1993 to 1994, she served as a hearing officer with the Georgia Department of Corrections in Atlanta, Georgia. She worked as an assistant district attorney in New York from 1984 to 1989. Previously, Judge Malloy served as a teacher/guidance counselor with the New York City Board of Education and she taught biology at John F. Kennedy High School, Bronx, NY for 15 years. She was a Peace Corps. volunteer in Nigeria for several years. Judge Malloy is a member of the New York, Pennsylvania, and Georgia Bars. Cremation Private.
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Although I ran into Judge Malloy at various events during my EOIR career, and reviewed her decisions while I was a BIA Appellate Judge, I never had the pleasure of working with her or really getting to know her on a personal level.
But, based on the outpouring of heartfelt comments from those who knew her, gathered on our “Round Table Communications Network” (“RTCN”), established and maintained by Hon. “Sir Jeffrey” Chase, she was a beloved and valued friend and colleague to all around her during her distinguished legal and judicial career.
I think this quote from retired Judge Bruce J. Einhorn best captures the feelings of those knew her well:
Thanks for sharing. This is very sad news. I had the privilege of serving as a judge with Ros in LA. She was a fair, decisive, humane, and witty jurist, and a wonderful colleague. May her memory be a blessing.
A moving and fitting tribute to a life of achievement well-lived in law and society.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
A Victory before the BIA!
Hi All: I hope you are not getting tired of all the winning. Today, the BIA issued a precedent decision on the whole Pereira and Niz-Chavez jurisdictional issue involving service of a defective NTA (link attached) in which our Round Table submitted an amicus brief drafted for us by our own Sue Roy.And the BIA actually agreed with us!!!
The holding:
The Department of Homeland Security cannot remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261 because this remedy is contrary to the plain text of 8 C.F.R. § 1003.30 and inconsistentwith the Supreme Court’s decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021).
Of course, our brief was not acknowledged in the Board’s decision.
A thousand thanks to Sue and to all in this group who have repeatedly signed on in support of due process.
As a reminder, we still await a decision from the Supreme Court on whether Pereira and Niz-Chavez extend to in absentia orders of removal. Oral arguments in that case were heard earlier this month, and our brief was mentioned in response to a question by Chief Justice Roberts.
Best, Jeff
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“Our Hero” 🦸♂️ Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration JudgesKnightess of the Round Table
Want to meet Judge Sue Roy in person and learn from her in a small group setting? You’re in luck! (HINT: She’s not only a very talented lawyer and teacher, but she’s also very entertaining and down to earth in her “Jersey Girl Persona!”)
“Don’t mess with Jersey Girls! They’ll roll right over you — in or out of court.” Creative Commons License
The Round Table 🛡️ will be well-represented by Judge Roy, Judge Lory Diana Rosenberg, and me at the upcoming Sharma-Crawford Clinic 7th Annual Immigration Court Trial Advocacy College in Kansas City, MO, April 24-26, 2024! We’ll be part of afaculty of all-star 🌟 NDPA litigators who are there to help every attendee sharpen skills and reach their full potential as a fearless litigator in Immigration Court — and beyond!
I am featured in the attached “20 Stories for 20 Years” video for Waterwell’s 20th anniversary with Kristin Villanueva, the star of the play and film versions of “The Courtroom.”
Waterwell is the theater company co-founded by the actor Arian Moayed that has been a great advocate on behalf of immigrants.
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Congrats, my friend and Round Table colleague, to you and to Waterwell!👏
Come to think of it, “Sir Jeffrey” is a pretty good moniker for an actor, as well as a leading warrior of the Round Table!🛡️⚔️
And, certainly, Immigration Court is a continuing human drama. Some would say “Repertory Theater of the Absurd!”🎭🤯
One day in 2003, I got a call from an acquaintance — the mother of one of my daughter’s middle school classmates — who happened to be the Vice Dean of Cardozo Law School, part of Yeshiva University in New York City. She knew that I was a practicing immigration lawyer with a major immigration law firm, so she was wondering: would I be interested in teaching a course in Immigration Law at Cardozo?
It turned out that Leon Wildes, founder of the esteemed immigration law firm Wildes & Weinberg, PC, and most famous for his representation of John Lennon, had been teaching Immigration Law at Cardozo for many years. But at the age of 70, he was ready to slow down a bit, and teach only one semester per year instead of two semesters. I was asked if I would be willing to teach the class during the spring semester. Leon would continue to teach the fall semester course, as well as oversee an externship program through which he placed students for a semester with nonprofit legal services organizations representing immigrant clients.
I eagerly said yes, and was given the freedom to design my own syllabus and curriculum. I taught the basic doctrinal course in Immigration Law at Cardozo from 2004 through 2011. Then Leon decided to step down from teaching completely. His son, Michael Wildes, an esteemed immigration attorney in his own right, took over the class, and I segued into running the externship program, which I turned into a full-fledged field clinic with a weekly seminar where we did case rounds and focused on different substantive topics each week — both legal topics such as deportation or different visa types, and practice-oriented issues such as how to interview clients who have suffered severe trauma. I continued to run the Immigration Law Field Clinic at Cardozo Law School until 2015.
Now Leon Wildes has passed on, at the age of 90. He leaves behind an incredible legacy as one of the grand old men of the immigration bar. And that story about John Lennon? It’s worth reading.
Photo from the Wildes & Weinberg, PC website.
Because of Lennon’s affiliation with the Left and his ability to rally young people (during the first presidential election when 18- to 20-year-olds could vote), Richard Nixon considered Lennon to be a threat to his reelection in 1972 and wanted him deported. In defending Lennon against deportation, Leon Wildes — who was so conventional that he purportedly didn’t even know who John Lennon was before he took him on as a client — managed to uncover the then-secret practice (then called the “non-priority program”) within the then-Immigration and Naturalization Service (INS) of exercising prosecutorial discretion not to deport certain otherwise deportable individuals.
Wildes’ advocacy led John Lennon and Yoko Ono to succeed in their fight against deportation and enabled them to obtain permanent residence. Moreover, Wildes’ unmasking of the INS’s ability to exercise prosecutorial discretion paved the way for the Obama Administration to later create a policy allowing young people brought to the United States as children — the so-called “Dreamers” — to remain in the United States under the Deferred Action for Childhood Arrivals (DACA) program.
Read the story of Leon Wildes’ representation of John Lennon in his first-person account, “Not Just Any Immigration Case,” reprinted on the Wildes & Weinberg website from the Benjamin N. Cardozo School of Law Alumni Review.
RIP Leon Wildes. May his memory be a blessing
Careen Shannon Senior Counsel (formerly Partner) Fragomen, Del Rey, Bernsen & Loewy, LLP Executive Producer “Las Abogadas: Attorneys on the Front Lines of the Migrant Crisis.” Photo: Think Immigration
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Thanks, Careen! Lot’s of “good historical stuff” on the Lennon case on the Wildes & Weinberg PC website: https://www.wildeslaw.com/
I drafted the BIA decision in Lennon that was reversed by the late Chief Judge Irving Kaufman and the 2d Circuit. Leon argued the case before the BIA.
Another legend, the late Vinnie Schiano (who, according to my Round Table colleague and immigration historian Hon. “Sir Jeffrey” Chase, claimed to have been a co-inventor of the “Master Calendar”) argued for the “Legacy” INS.At that time, the BIA counted immigration “gurus” Chairman Maury Roberts and Louisa Wilson among its five members.
I ran into Leon at a number of AILA functions over the years. I think he was friendly with Maury Roberts and the late Sam Bernsen, two of my “mentors.”
Leon was a gentleman, scholar, and educator, widely respected by those in Government and private practice.
