"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Sir Jeffrey” Chase reports:
Hi: I just heard that all of the anti-immigration measures that Republicans attempted to add as amendments to the reconciliation bill were defeated.
I’m so in awe of the advocates who were up all night monitoring the process and weighing in with Senators’ offices.
Best, Jeff
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James “Jim” Crow Symbol of American Racism, Now At The Heart of The GOP Immigration Agenda
But, don’t relax or breathe a sign of relief. The GOP is very up front about the Jim Crow hate agenda they plan to roll out if they gain control of Congress in the midterms. Here is is in all it’s dishonesty, cruelty, and racist agitation:
Yes, you can expect Biden to veto any of this. But, it still will disrupt the business of Congress and will lead to hate rhetoric, lies, and racist stereotypes being hurled against immigrants and people of color. There is virtually no chance that the GOP would have the votes to override the vetoes in both Houses.
Still, upcoming generations of younger Americans will have to decide whether they want to live and raise their children in the the “American Hungary” — a neo-Nazi state where racial and ethic hatred and anti-Semitism will be at the center of all authoritarian Government policy. If not, the younger generation of the NDPA needs to come up with ways of keeping the GOP out of political power from the top to the bottom.
However welcome, the latest hard-fought victory over racist nativism and xenophobia was just the beginning of the struggle for the heart and soul of America.
On July 21, we were treated to the news that our nation’s immigration courts will no longer be run by a chief judge specifically installed by the prior administration as part of its plan to undermine those courts’ independence and fairness. The fact that this development took a year and a half to occur, evoked surprise, and was met with accusations of wrongdoing and threats to investigate from conservative corners that read as parody says a lot about the present state of those courts.
The Chief Immigration Judge should be in charge of the hiring and training of judges, and in setting policy for the courts. The holder of that title is the person most responsible for creating the environment in which the Immigration Courts function. Unfortunately, the choice to fill this position has too often been an afterthought. And the Trump Administration succeeded in stripping the office of pretty much all authority; one of its appointees was effectively reduced to internally disclaiming “it wasn’t my decision” in response to every controversial directive issued from his office.
It is therefore extremely important for the Biden Administration to give much thought to its next appointee, and in doing so, clearly define what the position is meant to be. And although that appointee serves at the will of the Attorney General, Merrick Garland, formerly a distinguished circuit court judge, is particularly qualified to understand the need for a strongly independent Chief Immigration Judge willing to push back against threats to due process. He should thus afford his choice for the position the authority to do just that. Because when courts fulfill their proper function of providing a fair reading of the law and protecting against government error and overreach, we all benefit.
It is important to note that no Chief Immigration Judge has been chosen from the ranks of immigration law scholars. I think this is partly because unlike their counterparts at the B.I.A., the Chief Immigration Judge is not actively involved in deciding cases; theirs is an administrative job. However, it is high time for that view to change. Now would be an ideal opportunity to appoint someone to the position who knows the law at least as well as the judges they will oversee.
Among other reasons, that degree of knowledge is necessary to allow a chief judge to differentiate between legitimate actions taken by judges based on their good faith interpretations of the law, and alternatively false justifications disguised as legal reasoning offered by those whose real goal is to carry out a particular agenda. The ability to clearly articulate the difference is needed to protect the former, eliminate the latter, and rebut the inevitable claims of political motivation in response to such actions.
As a brief recap, under the Trump Administration, we saw plenty of examples of improper political motive. For instance, the Immigration Courts issued not one but two broadsheets of anti-immigrant propaganda unironically titled “Myths vs. Facts” (in spite of being devoid of the latter). In addition, a highly respected Immigration Judge was wrongly chastised for correctly doing his job because his concern for the due process of the non-citizen was not shared by the then powers that be. As if that wasn’t bad enough, the judicial equivalent of a “hit man” was dispatched from D.C. to Philadelphia for the sole purpose of entering an order of deportation in that case, due process concerns be damned. The entire exercise was clearly intended as a message to other judges of the consequences of acting as anything other than a rubber stamp.
When in spite of such warnings, many Immigration Judges continued to grant asylum claims because the correct application of the law required it, the Trump Administration hired new and unqualified judges who would place loyalty to its nativist agenda above all. One of those hires had actually written a shockingly insulting article only months before his appointment, labeling as “rebels without a clue” all of his soon-to-be colleagues who had issued scholarly, well-reasoned opinions granting asylum to female victims of domestic violence. The author demonstrated what should have been a disqualifying lack of knowledge in broadly characterizing all such claims as falling outside the scope of our asylum laws, and in further accusing more learned judges who concluded otherwise of “grossly exceeding their authority” and engaging in a “gross violation of legal ethics.”
What was needed then was a Chief Immigration Judge willing to say “over my dead body” to these hirings and other abusive actions. It is greatly hoped that the next chief judge will possess both the integrity and authority to do just that, with the knowledge that higher-ups within the agency will stand behind their decisions.
And since we won’t always have a former Circuit Court judge serving as Attorney General, it might be worthwhile while we do to ask for regulations (or at least some form of guidance from above) clarifying what will henceforth be expected of those filling the position, and calling on all personnel within the Department of Justice to encourage and support the independence of their colleagues charged with carrying out judicial functions.
Copyright 2022 Jeffrey S. Chase. All rights reserved.
JULY 25, 2022
Reprinted by permission.
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Very timely and “spot on,” Sir Jeffrey!
Why The Chief Immigration Judge & BIA Chair Must Be “Working Judges” — No More “JINOS” (“Judges In Name Only”)!
By Paul Wickham Schmidt
July 26, 2022
Time (actually “long past time”) for dynamic change! As Chief IJ, we need an “intellectual powerhouse” who is a nationally recognized expert in immigration, human rights, constitutional law, equal justice, racial justice, and an acknowledged, widely-respected intellectual leader with the guts and the “juice” to stand up to bureaucratic meddling and political interference. That’s in addition to having a “big picture” outlook and some actual experience in legal administration.
One additional key change I would make: The Chief Immigration Judge should also function as a “working judge” hearing and deciding at least some cases on a regular basis! There is no substitute for “actual time on the bench” for understanding the Immigration Judge’s proper role.
It puts the CJ in touch with both the DHS Counsel and the private bar on a regular basis. It also exposes BS and nonsense that’s going on in the Immigration Court system. A huge difference exists between “policy and procedural memos issued in a vacuum” from “on high” and actually having to apply them on a daily basis.
Indeed, a “sitting Chief Judge” wouldn’t have to “study” or ask for “reports” on the problems; she would know first-hand what they are from actual experience. Also, the CJ must get out in person and see what’s happening in the various courts, rather than taking an occasional “official tour” where everything tends to be a “sanitized show & tell.” An engaged Chief Judge could be “proactive rather than reactive.”
Surprising what you can find out by actually getting out of the “Executive Suites” in the Skyline Tower in Falls Church and poking around the “retail level” of the system you are administering! There is no better way of doing that than actually taking the bench and dispensing some justice!
How do I know? Well, during my six-year stint as BIA Chair (1995-2001) I was a “working appellate judge” in addition to be an engaged administrator of a dynamically growing and changing organization. I also served as a Senior Executive at EOIR and was never reticent about expressing my views on overall agency management and EOIR’s sometimes stormy relationship with other parts of the DOJ. At one point, I had the unenviable task, along with the then General Counsel of EOIR, of “barring” the then-Director from attending an en banc conference at which cases were to be discussed.
Upon appointment, from private practice, I was one of only four “permanent” appellate judges then on the BIA. By the time I stepped down in 2001, there were more than 20 appellate judges, the staff had more than doubled, a new management structure was in place, a Clerk’s Office had been created, the Virtual Law Library established, precedents were written and formatted differently, and numerous other changes had been made. Sadly, many of the positives have been erased over the past two decades through a combination of political meddling from DOJ and subservient “management” at EOIR.
I also sat and voted on nearly every one of the more than 200 precedent decisions issued during my tenure. I authored some of them, including the landmark decision Matter of Kasinga, recognizing female genital mutation (“FGM”) as persecution for the first time.
Additionally, I sat on three-member panels, sometimes as a “regular,” other times filling in for those who were out of the office. I took panels “on the road” to hear oral arguments across the U.S. (something now “prohibited” by the mindless “Ashcroft reforms” that accompanied his “purge” of the BIA in ‘02-03”) and to meet with the local judges, bar, and INS Counsel. It was “due process in action” — a real-life, open, accessible demonstration of how “collegial justice” should work! It put a much-needed and now totally absent “human face” on appellate justice. As those who practiced before the BIA at that time can testify, my “unmistakable signature” was on thousands of non-precedent decisions.
I also made regular unannounced visits to the BIA Attorney Advisers and the newly-established Clerk’s Office to chat about what was on folks’ minds. “Chairman alert” was a commonly heard “warning” throughout the various buildings of the Skyline Center where the BIA was located.
Sure, I didn’t get everything right, and there were some problems I couldn’t solve. But, I was always “on top” of what was happening — both legally and “operationally” — at the BIA. I didn’t have to spend lots of time asking for reports from the staff, because I knew from experience what the problems were and whether the solutions we were attempting were working or not.
Yes, my decision to actively participate in adjudication and aggressively advance my legal views put me in constant conflict with many of my more conservative judicial colleagues at the BIA. As the record shows, I got “outvoted” on a regular basis at both en banc and on panels. But, so what! That’s what being a “real judge” and having real views on justice, based on many years of experience in and out of Government, is all about!
An unanticipated benefit: My “hands on” judicial experience was good preparation for the somewhat unexpected “next phase” of my career — when Ashcroft “exiled” me to the Arlington Immigration Court in 2003. I’ll acknowledge that there were some things about being a trial judge that couldn’t be learned from reading transcripts, writing appellate decisions, and occasionally observing hearings in person.
In another life, at the “Legacy INS,” I had basically “created and implemented” the “modern Chief Counsel system” now in use at DHS — over some vigorous “internal opposition” to change and centralized legal control. That system provided independence from the “clients” in district office operations. Then, I basically had to face that creation in court every day for 13 years!
But, I certainly had a good idea of what I was getting into and was able to “hit the ground running” in terms of the substance of immigration law, the “big issues,” and what good trial decisions should be and look like in writing. Indeed, my “former colleagues” on the BIA sometimes mischaracterized my “oral decisions” as “written decisions” because I used the “familiar BIA written format” and constructed them as what I found the “ideal decision” to be for appellate review during my BIA tenure.
Interestingly, I found that as an Immigration Judge the more humane and realistic view of the law that had been an anathema to the majority of my BIA colleagues — and which helped me and my so-called “liberal” colleagues get the boot from Ashcroft and Kobach — was often accepted by both parties at the trial level. Even when appeals were taken, I did much better with my former colleagues as an IJ than I did as Chair. And, I certainly learned first-hand how deeply screwed up EOIR was and how misguided the BIA majority was on many of their precedents. That, in turn, prepared me to become an advocate for radical due process reforms at EOIR upon retirement.
It’s surprising what an administrator can learn if he or she actually “does” some of the “line work” they are administering. We need a functioning, substantively-engaged, well-informed, “real judge” for Chief IJ, not another “JINO!”
Is she the “Debbie Anker of Entertainment?” PHOTO: Mason Poole, CC BY 4.0 <https://creativecommons.org/licenses/by/4.0>, via Wikimedia Commons
Hon. “Sir Jeffrey” S. Chase writes:
What a beautiful tribute to a true giant and hero. I can’t even begin to state the influence Debbie has had on me. But think of how many NDPA heroes out there are former students of hers, and how many immigration law clinics around the country relied on Debbie’s clinic at Harvard as its model. It’s impossible to overstate her impact.
Clinical Professor Deborah Anker LL.M. ’84, ‘one of the architects of modern refugee law’ and founder of the Harvard Immigration and Refugee Clinical Program, moves to emerita status
By Debbie/HLS Correspondent, July 20, 2022
Credit: Kathleen Dooher
As Harvard Law School Clinical Professor Deborah Anker LL.M. ’84 moves to emerita status, she and her many students and colleagues can reflect on her formidable record of achievement — as a pioneer in the study of refugee and asylum law, the author of the seminal text on the subject, and a tireless advocate for the rights of refugees, particularly women and children. As her former student Molly Linhorst ’16 puts it — quoting a sentiment voiced by many of Anker’s admirers — “She’s the Beyoncé of asylum law.”
“As founding director of the Harvard Immigration and Refugee Clinic, Deborah Anker has played a pivotal role at Harvard Law School, not only by founding our clinic but in helping build our clinical program,” Harvard Law School Dean John F. Manning ’85, the Morgan and Helen Chu Dean and Professor of Law at Harvard Law School. “Her work in the clinic enabled countless clients to enjoy freedom and escape persecution by remaining in the U.S., and she trained and inspired scores of other lawyers to work to those same ends.”
“Debbie wins the prize for tenacity in terms of standing up for refugee rights in America,” says James Hathaway, prominent international refugee law scholar and founding director of Michigan Law’s Program in Refugee and Asylum Law. “Literally nobody has fought the good fight as often as she has done. But she is also an intellectual trailblazer, having, in particular, developed a gender-inclusive understanding of refugee status, and having made the case for the alignment of American understandings of asylum with our international obligations. She truly is a hero.”
Groundbreaking scholarship and litigation
A pioneer in the development of clinical legal education in the immigration field, Anker joined the Harvard Law faculty in the early ’80s, as a lecturer on law and later clinical professor of law in 2008. Along with her colleagues Nancy Kelly and John Wilshire-Carrera, Anker founded the Harvard Immigration and Refugee Clinical Program, or HIRC, which has since become a model for similar clinics nationwide. Her book, “Law of Asylum in the United States,” first published in 1998 under the editorship of former student Paul Lufkin and now updated annually with a cadre of HLS student editors, remains the key authoritative text in the area. She also has authored numerous amicus curiae briefs in major refugee litigation, served as an expert witness before national and international fora, and helped draft national gender refugee guidelines.
Harvard Law Clinical Professor Sabrineh Ardalan ’02, Anker’s former student and the current faculty director of HIRC, credits its significant expansion over the decades to Anker’s “commitment to advocating for immigrants’ rights and dedication to responding to the evolving challenges facing immigrants and refugees in the U.S.”
In addition to the clinical work at Greater Boston Legal Services, overseen by Kelly and Willshire Carrera, “HIRC now includes two clinics, a student practice organization [SPO], and the Harvard Representation Initiative, which serves members of the Harvard community whose immigration status is at risk. In addition to the flagship Immigration and Refugee Advocacy Clinic, there is now a Crimmigration Clinic, led and directed by Phil Torrey, which focuses on cutting-edge appellate and district court advocacy at the intersection of immigration and criminal law. And through the HLS Immigration Project, the student-practice organization, students can hit the ground running with hands-on immigration and refugee advocacy their 1L year,” said Ardalan. “Debbie built a team at HIRC that now supervises over 140 HLS students each year through the two clinics and SPO and in so doing, centered immigration and refugee law as a core component of HLS’s clinical program.”
Credit: Tsar Fedorsky Anker (left) in 2011 with HIRC students Gianna Borotto ’11 and Defne Canset Ozgediz ’11, and Sabrineh Ardalan ’02. Ardalan is Anker’s former student and the current faculty director of HIRC.
Committed to justice from an early age
Raised in New York, Anker graduated magna cum laude from Brandeis University, and went on to earn her J.D. from Northeastern before continuing her legal studies at Harvard. Even before she began formal studies, Anker was invested in the study of and advocacy for human rights. She credits that in large part to her family history and values: Her Jewish grandparents crossed the Atlantic to escape the persecution leading to the Holocaust, and both of her parents were committed public school educators. Her father was a New York City Schools chancellor during desegregation. “The belief in the equality of all people was central to how I was raised,” she said.
“From my family I got deep beliefs and commitment to anti-racism. I have a strong memory of my father telling me about Ralph Bunche, a Nobel Peace Prize recipient, one of the founders of the United Nations, leading actor in the mid-20th-century decolonization process and U.S. civil rights movement, and recipient of the Presidential Medal of Freedom,” said Anker. According to her father, Anker reports, Bunche was discriminated in obtaining housing, and refused membership in a neighboring tennis club in the area of Queens where Anker’s family moved in her early teenage years. “That was something that stuck with me,” she said. Early in her legal career, Anker represented a Black family that had moved into Dorchester during desegregation and was subject to violent attacks; this was one of the cases covered in J. Anthony Lukas’ classic 1985 book, “Common Ground.” “For me personally, a commitment to racial justice was central to my identity,” she says.
Anker credits the late Harvard Law School public interest professor Gary Bellow ’60, founder and former faculty director of Harvard Law School’s clinical programs, with advising, advocating and paving the way for her engagement in clinical education at the law school.
She also credits the ‘extraordinary determination and integrity’ of Lisa Dealy, former assistant dean of clinical education, with whom Anker worked closely, in helping to expand the school’s clinical program.
In 1984, when Anker, along with Kelly and Willshire Carrera founded the Immigration and Refugee Advocacy Clinic, the study of immigration law was still in its infancy, and clinical education was relatively new in legal education.
And, according to Kelly, Anker was writing the law from the beginning. “The article she co-authored on the legislative history of the Refugee Act [and] shaped how that law would be interpreted, with the U.S. Supreme Court citing it in support of an internationalist approach to refugee and asylum law, grounded in our treaty obligations, as signatories to the U.N. Protocol relating to the Status of Refugees,” said Kelly. “She authored some of the first empirical studies of immigration adjudication and co-authored the first study of the expedited removal process for addressing the claims of asylum seekers at the U.S. border.”
According to Willshire Carrera, Anker “believes in bringing the reality of the law as it is experienced by real people into the classroom and into scholarship. We developed an approach of ‘legal change from the bottom up,’ changing ground-level legal institutions, which set the stage for changes at higher levels, including in precedent decisions in the federal courts.” From its earliest years, HIRC worked to bring administrative decision-making out of the shadows, publishing administrative asylum decisions, which were otherwise inaccessible to advocates and researchers.
During these early years, Anker also worked with Hathaway, who developed a structured human rights approach to interpretation of refugee law, an approach HIRC would adopt including in much of its women’s refugee work.
Credit: Kris Snibbe/Harvard Staff Photographer Anker (pictured here in 2014) with (from left) Julina Guo ’14, John Wilshire Carrera, and Nancy Kelly. Wilshire Carrera and Kelly founded the Harvard Immigration and Refugee Clinic with Anker in 1984.
Anker’s background in racial justice led her to work with Haitian refugees beginning in the mid 1980s. “I got to know civil rights lawyer Ira Kurzban, who was leading the charge on behalf of Haitian refugees fleeing a horrible and violent dictatorship, which the U.S. had backed.” Among other work, Kurzban engaged Anker as an expert witness on U.S. asylum law, in challenges he brought based on discriminatory detention and treatment generally of Haitian refugees. She would continue to be called in as an expert, including later in challenges brought by Canadian NGOs in 2005 and 2017 to exclusionary policies of the Canadian government, refusing entry to asylum seekers coming from the U.S. under the Safe Third Country Agreement.
The Canadian Supreme Court will soon issue a ruling on whether the Canadian policy of returning asylum seekers to the U.S. complies with the Canadian Charter and international law. Canadian attorney Andrew Bouwer praised Anker’s work on the Safe Third Country Agreement and says he looks forward to her continued advocacy on these issues. “Professor Anker is a force of nature! Working with her on Canada-US border issues, especially the inhumane Canada-U.S. Safe Third Country Agreement, these past 17 years has been an incredible honor and a highlight of my practice.”
Also in the 1980s, Anker helped found the Boston Committee against Deportation, defending a group of Haitians who were arrested by immigration authorities as they attempted to organize a union at Faneuil Hall market place.
HIRC continued this work with Haitian refugees who fled again during the 1990s after the violent overthrow of Haiti’s first democratically elected president, Jean Bertrand Aristide. HIRC’s early engagement with Haitian refugees led to groundbreaking work on gender asylum. “After President Aristide was deposed, there were security forces who went into women’s houses (the men had mostly fled) and raped them, because they were known, or assumed to be, supporters of Aristide,” explained Anker. “So it was really rape used as punishment based on ‘political opinion,’ one of the grounds of protection in the refugee treaty to which the U.S. is a party.”
Working in conjunction with other groups, HIRC got the administrative Board of Immigration Appeals to recognize that this was a form of what the agency called “grievous harm,” which HIRC argued fit the concept of persecution. “This case, Matter of D.V., was the first administrative gender asylum decision; along with others, we were able to convince the board to publish it as a precedent decision,” said Anker.
Meanwhile, the group traveled to Haiti to collect affidavits; their work ultimately led the Inter-American Commission on Human Rights to make the first finding by an international human rights body that rape could constitute torture.
This in turn contributed to greater global awareness of violence against women within a human rights framework. Canadian NGOs and academics took the lead, particularly through the Canadian Immigration and Refugee Board. “The Canadians worked up an amazing series of guidelines, and we [the HIRC] took those and adapted them to American law,” Anker said. “We published these and asked the U.S. government to take our guidelines and issue official government guidelines, based on them — and in fact, they did that.” Later, HIRC led a major amicus effort, drafting a brief to the then-attorney general signed by 187 organizations and individuals, arguing that violence against women in the “domestic” sphere, that is, in the home by sexual intimates, could be the basis for protection. Eventually the attorney general reversed an original denial and the petitioner, represented by the Center for Gender and Refugee Studies, was granted asylum.
(HIRC was) committed to having legal education grounded in actual clients’ experiences of persecution. … We set a precedent that law school clinics are not just a place to do policy work or major litigation, but also a place to engage with clients, to get to know them and to help them articulate their experiences. … I am grateful to the law school for allowing us to advance that approach to legal advocacy and education.
Deborah Ankernone
Personal involvement became key in Anker’s approach to teaching. “We were committed to having legal education grounded in actual clients’ experiences of persecution. Students represented clients and learned to help them tell their stories. We then gave them the time to reflect in class and to write about it. We set a precedent that law school clinics are not just a place to do policy work or major litigation, but also a place to engage with clients, to get to know them, and to help them articulate their experiences,” said Anker. “I am grateful to the law school for allowing us to advance that approach to legal advocacy and education. We now have such a rich and diverse clinical education program at the law school, which has developed in many different directions – client work, policy advocacy, regulatory reform, as well as litigation.”
Anker also points to the clinic’s work with the United Nations High Commissioner for Refugees (UNHCR) to develop general guidelines for international refugee law.
“My perception was that few academics and major practitioners around that time, the mid to late 1990’s, were thinking conceptually about this. Jim Hathaway’s work was a major force in bringing a principled, and importantly structured, human rights approach to interpretation of refugee law,” said Anker. “We got the UNHCR to adopt general guidelines recognizing gender itself as a category of protection within the refugee treaty’s ‘particular social group’ ground. In the amicus work we have done over the years, we have stuck to this approach and increasingly federal courts as well as some administrative decision makers are recognizing that gender itself can be a basis for protection, including in the ground-breaking 2020 First Circuit decision in De Pena-Paniagua v.Barr, which directly adopted language from HIRC’s lead amicus brief.”
HIRC has continued to expand its scope, working in recent years with students who were eligible for DREAM Act protection. Most recently, Anker and the group have worked on climate change and refugee law, pushing for interpretations of the law to account for the large-scale climate-based displacement that is already occurring in Central America and is expected to worsen. “We need to show decision makers and policy makers that displacement is caused by multitudes of factors and a person can qualify for protection if part of the cause is environmental,” said Anker.
“Our work has always been informed by what is happening,” Kelly said. “The gender work came from a sense of, ‘Where are the women in this system? They don’t seem to be represented’. The Haiti work was geared toward what happened to Haitian women after the coup in 1991. That brought the reality home of what was happening to Haitian women, and got that recognized in a legal context that could then be brought back to cases in the US. The two are integrally connected.”
“We pride ourselves on doing work from the ground up,” Willshire Carrera said. “We’ve had a large number of students who have gone on to be major contributors in the development of asylum law in the country. One thing for sure is that the clinic is now very well recognized. So much of that has to do with Debbie.”
Former students pay tribute
Ardalan, who now directs HIRC, acknowledges a significant personal influence. “Debbie has shaped the course of my life. I have learned so much from her advocacy and scholarship, from her empathy in working with clients, from her tremendous care for her students and colleagues, and from her incredible persistence in continuing to fight against injustice no matter what the odds. She has modeled for me how to approach teaching and lawyering with dedication, humility, strength, and compassion.”
Anker’s influence also goes far beyond Harvard Law School. According to Mark Fleming ’97, who studied with her at Harvard Law and is now a partner at WilmerHale, “Debbie’s contribution to how young lawyers thought about immigration law really can’t be overstated. She was the first person I met at HLS who was not only a gifted academic, but devoted to using her knowledge to represent clients. She used her knowledge to manage a significant group of people who were trying to push immigration law in a good direction and to help people who needed it. That was a new thing to me.”
Fleming currently does pro bono work in the immigration field and cites this as an example of Anker’s influence. “One of the more important lessons she taught me is that immigrants who come to our country are thrown into a very complicated system without anybody to help them. She showed me that things immediately change when a lawyer shows up, so a pro bono lawyer can make an enormous difference.” This, he said, goes back to his days at Harvard Law. “As a law student, the opportunity to walk down the street, to what used to be called Cambridge and Somerville Legal Services, had an impact. First of all, it was terrifying, because I had no idea what to do. But also very rewarding, because people in the system are otherwise forced to navigate it by themselves.”
“Debbie’s seminar influenced the way I think about asylum,” said Fatma Marouf ’02, who now directs the Immigration Rights Clinic at Texas A&M University School of Law. “The way she talked about absorbing each person’s story, I never forgot that. She walked us through each element of her incredible text about the law of asylum, and made sure we had a great understanding of it. She helped us connect the cases we were working on with the thinking behind it. And I loved that she really got in an international perspective — not just U.S. asylum law but how the U.K., Canada, Australia might approach it.”
Marouf particularly credits Anker with emphasizing the connection between asylum and human rights law. “When I teach my own clinic I talk about the importance of bringing in a comparative perspective of what asylum should be, versus how it is — and that’s all Debbie’s. I don’t know if I could have gone into immigration law without her, much less fallen in love with teaching.”
Credit: Brooks Kraft
“She built a program at a time when immigration clinics were not found at many law schools,” said David B. Thronson ’94, who went on to teach international human rights law at Michigan State University. “Part of what impressed me from the beginning is that her work is absolutely compelling and consequential; it changes peoples’ lives. You’re talking about people who are going to face persecution in their home countries if they are returned. It’s not an equal fight, the stakes and the consequences are high and their resources are often minimal; the government is always well represented but the migrant seldom is. To find someone with Debbie’s expertise and willingness to take on those issues — and who is also a tremendously human person that you can get to know — makes a huge difference, and it was a really defining law-school experience for me.”
That experience stuck with Thronson through his career. “I got the realization that things could go together; I could be a professor and still make a difference in the real world, representing clients — and hopefully I can do that in a way that lets my students grow and have good experiences. Debbie taught me that those aren’t mutually exclusive things to do.”
Another former student, Rebecca Sharpless ’94, now directs the immigration clinic at the University of Miami School of Law. “Debbie was the single most influential professor during my time at HLS. As I started my first year, I knew that I wanted to be a social justice lawyer, but I didn’t know what kind. Debbie taught me the urgency and importance of working with immigrants. Her work on some of the most difficult issues relating to the protection of refugees has been pathbreaking, but to me she is first and foremost a teacher and mentor. Under her guidance, I argued in immigration court, organized a trip to Miami to help Haitian refugees, and contributed to federal court briefing. Without a doubt, she made me into the immigration lawyer and teacher that I am today.”
Looking back on a lifetime of impact
Anker has been designated a Woman of Justice by the Massachusetts Bar Association, and in 2011 was elected as a fellow to the American Bar Foundation. The HIRC’s Women’s Refugee Project, which spearheaded work on gender asylum, received the American Immigration Lawyers Association’s (AILA) most prestigious “Founders Award.” HIRC also received AILA’s Human rights award for its work in clinical legal education and advocacy on behalf of refugees. Anker has received AILA’s Elmer Fried Excellence in Teaching Award; two awards for gender asylum work from the Federal Bar Association; the Massachusetts Governor’s New American Appreciation Award; and the CARECEN Award from the Central American Refugee Center.
Presenting her with the latter honor, lead attorney Patrick Young called Anker “one of the architects of modern refugee law. She really defined the field from its inception and her essays and her seminal treatise, ‘Law of Asylum in the United States,’ have helped educate and train two generations of asylum lawyers. Without her thoughtful guidance, it is doubtful CARECEN and many other refugee defense programs could have succeeded in protecting the persecuted as effectively as we have.”
In addition to those already mentioned, Anker notes that “HIRC and I are so fortunate to have on staff attorneys Sameer Ahmed, Jason Corral, Tiffany Lieu, Mariam Liberles and Cindy Zapata. HIRC’s staff also includes our head of social work, Liala Buoniconti; paralegal Karina Buruca; Mary Hewey; and Anna Weick, our chief administrator.” Anker credits her faculty assistant, Sophie Jean, as being an incredible resource, organizing work on “Law of Asylum” research with students, among other invaluable assistance. “Not much can be accomplished without her amazing intelligence and commitment, and of course thank you to those who have come and gone like the incomparable Jordana Arias, a force of nature, and all my assistants going way back to wonderful Delona Wilkins.”
In entering emerita status, Anker reflects back with much gratitude at the opportunities she has been given. “I love this community and I love this work. It truly has been an honor. I am so very grateful.”
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Thanks and many congrats, Debbie, my long-time friend, for all you have done for due process, justice, humanity, and the future generations of the “New Due Process Army!” I wholeheartedly concur in the comments of my friend and Round Table colleague “Sir Jeffrey!” Through your intellectual brilliance, moral courage, extraordinary leadership, and ability to teach and inspire others, you have certainly left a permanent mark on the worldwide, eternal quest for justice!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Sir Jeffrey Chase forwards our Round Table’s latest effort to promote reality, reasonableness, and due process in EOIR’s dysfunctional world:
Amici curiae are 38 former immigration judges (““IJs””) and members of the 2
Board of Immigration Appeals (““BIA””).2
Amici have dedicated their careers to improving the fairness and efficiency of
the United States immigration system, and have an interest in this case based on their combined centuries of experience administering the immigration laws of the United States. Amici collectively have presided over thousands of removal proceedings and thousands of bond hearings in connection with those proceedings, and have adjudicated numerous appeals to the BIA.
In denying Anderson Alphonse’’s (““Mr. Alphonse”” or ““Petitioner””) petition for writ of habeas corpus, the United States District Court for the District of Massachusetts (Saylor, J.), relied in part on the premise that it was ““readily foreseeable that proceedings will conclude in the near future”” because Mr. Alphonse’’s appeal to the BIA was ““fully briefed.”” This premise—at best aspirational when made in January 2022—has proven erroneous: nearly six months later, Mr. Alphonse’’s BIA appeal remains undecided. This is, regrettably, unsurprising given the surging caseload in the immigration courts, which now exceeds 1.8 million
1
1Amici state that this brief was not authored in whole or in part by counsel for any
party, and no person or entity other than Amici or their counsel made a monetary contribution to fund the preparation or submission of this brief.
2
2 See the appendix for a complete list of signatories.
pending cases. This crushing backlog—adding significantly to the backlog facing the BIA—-iis extremely relevant to the question of when a removal proceeding is likely to conclude. In fact, it might be the most important factor in this equation. Yet this factor is absent from the First Circuit’’s current analytical framework, opening the door to erroneous suppositions and conclusions based on a cursory review of a removal proceeding’’s posture, such as the one made by the District Court here.
Thus, Amici write to respectfully urge the Court to reassess the impact the backlog of cases facing the immigration courts may have on the ability of courts to accurately forecast when removal proceedings will conclude. Given their extensive experience with the immigration courts and BIA appeal process, Amici are uniquely positioned to provide insight into this narrow, but critical, issue.
The case is Alphonse v. Moniz, currently pending in the 1st Cir. Here’s a complete copy of our brief:
Many thanks to our wonderful pro bono counsel Matthew Levitt and Evan Piercy at MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
Although BIA decisions, particularly in non-detained cases, might take many months or even years to decide, the appellant is given only a relatively short period of time to file a brief — 21 days. A single 21 day extension may be requested and is usually granted, although it is common for the appellant not to be notified that the extension has been granted until after the extension period has expired.
Requests for additional or longer extensions are rarely granted. Motions to accept late-filed briefs, even those only a day or two tardy, are often denied. On the other hand, failure to file a timely brief after requesting a briefing schedule is a potential ground for summary dismissal of an appeal regardless of the merits! 8 C.F.R. § 1003.1(d)(2)(i)(E).
These rigid procedures might give the false impression that the EOIR system is driven by a sense of urgency in dispensing justice. Additionally, BIA and AG decisions often disingenuously pontificate about the supposedly “critical importance” of finality in immigration decisions. It’s all BS!
As you might note, the only “urgency” at EOIR is the potentially severe consequences imposed on the appealing party, usually the migrant. One the “compressed briefing” is complete, there is no particular assurance that the appeal will be decided on the merits for months, years — or ever! Additionally, the BIA can sometimes make dismissal of an appeal easier by ignoring an untimely brief or even by summarily dismissing an appeal for failure to file a brief without dealing with the merits.
Moreover, the hopelessness of the 1.82 million case EOIR backlog and the “assembly line justice” encouraged by EOIR’s “political masters” at DOJ results in a sloppy, “haste makes waste” approach to “justice.” This, in turn, means wrongful removals or unnecessary “remands” from Circuit Courts.
But, not to worry — there is neither penalty nor accountability for the BIA’s poor performance. Wrongly deported individuals are “out of sight, out of mind” — assuming they are even still alive.
Moreover, court remands actually give the BIA unlimited opportunities to correct their sloppy and unprofessional work, often with the benefit of a more thoughtful analysis from the Circuit Court. Not that such beneficial treatment by the Circuit necessarily means the BIA will get it right on remand. The BIA has been known to get “chewed out” by Circuit Courts for ignoring or “blowing off” their mandates.
“Red flags” 🚩 should be popping up all over the Falls Church horizon — so big that even the often “asleep at the wheel” immigration policy folks at the Biden Administration can see them! But, don’t hold your breath! Our Round Table, however, will continue “speaking truth to power” and revealing the real, awful due process mess at EOIR.
The respondent in this case is ably represented by Associate Dean Mary Holper of Boston College Law and her Immigration Clinic. In a way, this is a classic illustration of why Garland has been unable to fix EOIR. Dean Holper is an accomplished, universally-respected litigator, teacher, writer, practical scholar, and administrator. She is exactly the type of NDPA All-Star/Expert whom Garland should have recruited on “Day 1,” brought in, and empowered to fix EOIR and reinstate and realize its due process mission. Instead, Garland’s EOIR continues to flail and fail while the talent who could fix it are lined up in court against him!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Sir Jeffrey” Chase reports:
9th Circuit Decision in U.S. v. Bastide-Hernandez
Hi all:Attached please find the published, en banc decision of the 9th Circuit issued yesterday in U.S. v. Bastide-Hernandez.As expected, the court held that the absence of a date and time of hearing does not deprive the Immigration Court of jurisdiction.
However, please note the concurring opinion of Judge Friedland, stating that although the court held that the issue is not jurisdictional, “there are strong argument for the contrary position,” adding that the Supreme Court may reach a different conclusion.
Judge Friedland also quoted our Round Table’s amicus brief at length, as follows:
“An amicus brief filed by former immigration judges elaborates on why it better serves clarity, efficiency, and due process to include the time and location of the hearing in an NTA in the first instance. As amici explain, incomplete initial notice documents create uncertainty both for noncitizens, who are left in the dark as to when and where a potentially life-changing proceeding will be held, and for immigration judges, who cannot be sure if a case can proceed. Amici also note that the Government’s notice-by- installment practice creates additional fact-finding obligations for immigration judges, who may need to look to multiple documents to determine whether informational gaps in the initial notice have been filled. And amici caution that, because immigration judges are already overburdened and face pressure to complete cases, ambiguities about notice may lead immigration judges to order noncitizens removed when they fail to show up at their hearings, even if the noncitizens never received notice of those hearings at all.”
I think that this lengthy reference demonstrates the importance of our work.
In the words of Ninth Circuit Judge Michelle Friedland (Obama appointee): “[I]t better serves clarity, efficiency, and due process to include the time and location of the hearing in an NTA in the first instance.”
What if we had an EOIR where all judges at the trial and appellate levels and all senior administrators were unswervingly committed to due process, fundamental fairness, and best practices?
Instead, we have a dysfunctional organization where DHS’s wishes, perceived expediency, and keeping the “political bosses” happy (thus providing “job security”) triumphs over the public interest and the cause of justice. Currently, we’re “saddled” with a broken system that sees Immigration Court as a “soft deterrent” rather than a dispenser of justice could actually make our immigration, human rights, and justice system run more smoothly by applying fair procedures and “best interpretations.” That would facilitate the legal admission of many more migrants, while starting to “disempower smugglers,” cut backlog, discourage poor practices at DHS Enforcement, promote consistency, and keep many disputes that should be resolved in favor of respondents out of the Article IIIs!
Better, more reasonable administrative precedents that adhered to the proper interpretations of asylum and protection laws and provided positive guidance on how to apply them to recurring situations would also “leverage” the Asylum Office by allowing many more cases to be granted at the first level. As long as the current lousy BIA precedents prevail, far too many cases will just be denied at the AO level and referred to Immigration Court — making it a colossal waste of time. “So-called streamlining” will only work if it results in significantly more AO grants of protection!
We “win some, lose some.” But, our Round Table’s cause is justice; we’re not going to give up until this system makes the long overdue, radical personnel, procedural, attitude, and “cultural” changes necessary to become the “best that it can be!”
That means fulfilling the Immigration Courts’ once and future vision of “through teamwork and innovation become the world’s best tribunals guaranteeing fairness and due process for all.”
Bonus Coverage:
“Sir Jeffrey’s” skills aren’t confined to the legal arena. Here are some pictures he took from his balcony of last night’s “Super Moon:”
“Super Moon” July 13, 2022 By Hon. Jeffrey S. Chase
There are plenty of similar cases out there in the EOIR backlog and waiting at the border for the Administration to start following asylum law!(Others have been unlawfully and immorally returned to persecution without meaningful opportunities to present their claims.)
These types of cases could be identified, represented, and timely granted by a “better EOIR” led by a “better BIA.” These are the decisions that should be binding precedents. Practical, positive legal guidance shows how to “build on” gender-based and family-based asylum to grant more protection, encourage good preparation and presentation on both sides, rein in “never asylum judges,” and to clear dockets of cases of individuals who deserve to be on their way to green cards, citizenship, and full participation in our society.
A fair, consistent, timely application of asylum and refugee laws would establish that many of those wrongly characterized as “law violators” are, in fact, legal immigrants. And, that’s something our country needs!
What if the “powers that be” would “institutionalize” this type of judicial performance rather than the “denial factory/good enough for government work” culture that continues to operate widely at EOIR under Garland? Wouldn’t that be the type of “good government” that Biden and Harris promised, but have yet to deliver, particularly on immigration?
Personal note:Judge Balasquide was the widely respected ICE Chief Counsel in Arlington when I arrived at the Arlington Immigration Court in 2003. He was initiallyappointed as a Immigration Judge in New York in July 2006 by then AG Alberto Gonzalez. I always enjoyed working with Judge Balasquide during my time in Arlington. (He actually appeared before me in court on a few occasions.)
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Hon. “Sir Jeffrey” Chase reports:
I talk all the time about the play “The Courtroom,” for which I served as a consultant, and then actually performed in four times on stage.
The film version (which I am not in) is now an entry in the Tribeca Film Festival, where it can be screened from home over a ten-day window next month.The “script” is entirely taken from the transcript of the Immigration Court hearing of an actual case, and then from the transcript of that same case as argued before the Seventh Circuit (Keathley v. Holder).
Onstage, several actual judges (present and retired) took turns playing the judge in the naturalization scene at the end.Two other retired IJs in addition to myself (Betty Lamb and Terry Bain), and one presently sitting IJ (Mimi Tsankov) performed.But in the film, the actor BD Wong plays Judge Denny Chin ofthe Second Circuit Court of Appeals; the real Judge Chin also performed that same role onstage.We all got to write our own remarks to address the newly naturalized audience.Judge Chin spoke so poignantly about his own family immigration story, and his remarks appear in the film.
In real life, this was another case in which the IJ and the BIA got it wrong.I feel this story is a tribute to those Paul has labeled the “New Due Process Army.”The real life Chicago attorney Richard Hanus had a brilliant legal argument, his very sympathetic client and her US citizen husband maintained faith in both him and in our legal system, and in the end, justice prevailed.
I hope that you will watch the film (Kristin Villanueva, who plays the respondent, was so moving in the role onstage; my wife, no stranger to immigration court, cried the first time she saw it performed), and maybe let others in our community know of it.Waterwell, the performing arts company responsible for this, is comprised of truly wonderful, talented, and caring people dedicated to creating socially conscious works.
CAST: Marsha Stephanie Blake, Michael Braun, Kathleen Chalfant, Hanna Cheek, Michael Chernus, Michael Bryan French, Mick Hilgers, Linda Powell, Kristin Villanueva, BD Wong
EXECUTIVE PRODUCERS: Anne Carey, Ryan Chanatry, Gena Konstantinakos, Lee Sunday Evans, Arian Moayed
I don’t know whether Waterwell has “academic rates” or “specials” for social justice fundraising. This could be a great teaching tool for clinical and other immigration professors as well as a potential fundraiser for clinics and community nonprofits dedicated to social justice.
Thanks, Jeffrey, for highlighting this great work. And thanks for the “mini-review.”
Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration JudgesHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Hon. “Sir Jeffrey” Chase reports:
The attached is the final “as filed” version of our latest brief in Chavez-Chilel v. Garland, in support of the motion for rehearing/rehearing en banc. This one is very “all in the family,” as Sue Roy is our counsel, Sue and I drafted the brief, and decisions from Miriam Hayward and Charles Honeyman are attached as exhibits.
There is also an amicus brief by law school professors, and joining NJ attorney Ted Murphy as petitioner’s counsel is Paul Hughes, who argued Kisor v. Willkie before the Supreme Court (as well a Nasrallah v. Barr, a Supreme Court victory in which we were amici).
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
NYT: Under the new policy, which the administration released on Thursday as an interim final rule, some migrants seeking asylum will have their claims heard and evaluated by asylum officers instead of immigration judges. The goal, administration officials said, is for the entire process to take six months, compared with a current average of about five years.
CLINIC: U.S. Citizenship and Immigration Services (USCIS) agreed to restore a path to permanent residency for many Temporary Protected Status (TPS) beneficiaries blocked by then-acting USCIS Director Ken Cuccinelli — an illegally appointed Trump official. Because of this agreement, TPS beneficiaries impacted by this policy will be able to reopen and dismiss their removal orders and apply to adjust their status to become permanent residents — eliminating the threat of deportation if their TPS protections are revoked in the future.
AL: U.S. Immigration and Customs Enforcement, also known as ICE, will discontinue use of the Etowah County Detention Center in Gadsden, and will limit the use of the three other southern detention facilities: Glades County Detention Center in Moore Haven, FL., Winn Correctional Center in Winnfield, LA., and Alamance County Detention Facility in Graham, N.C. See also Biden to Ask Congress for 9,000 Fewer Immigration Detention Beds.
Roll Call: Congress in the fiscal 2021 law instructed the agency to include the number of legal visits “denied or not facilitated” as well as how many detention centers do not meet the agency’s standards of communications between immigrants and their lawyers… [T]he report claimed ICE inspections in fiscal 2020 “did not identify any legal representatives being denied access to their clients.”
Border Chronicle: Behind closed doors, agents, like technocrats in a Fortune 500 company, create color-coded graphics to demonstrate the most “efficient” and “effective” enforcement techniques. Even though the effectiveness of deterrence has been questioned and refuted, and even though the question of human rights has not entered the equation at all, the U.S. federal government seems to be plowing ahead with this without any questions.
GBH: The Boston asylum office for U.S. Citizenship and Immigration Services granted only about 11% of applications last year, less than half the national average, according to a report released Wednesday.
Law360: A Massachusetts judge ordered an immigration attorney to pay $240,000 in penalties and restitution for filing frivolous and false asylum applications for undocumented Brazilian immigrants without their knowledge, according to a Thursday announcement from Massachusetts Attorney General Maura Healey.
More than half of the judges will be going to the Hyattsville Immigration Court (Maryland) and Sterling Immigration Court (Virginia, opening May 2022). The list includes Claudia Cubas (CAIR Coalition), Kristie Ann-Padron (Catholic Legal Services, Miami), Kyle A. Dandelet (Pro Bono Immigration Attorney at Cleary Gottlieb), Ayodele A. Gansallo (Hebrew Immigrant Aid Society of Pennsylvania), Joyce L. Noche (Immigrant Defenders Law Center), Christine Lluis Reis (Human Rights Institute at St. Thomas University College of Law), Carmen Maria Rey Caldas (IRAP), and others.
WaPo: Refugee workers said it was typical for recent refugees to focus at first on the possibility that they would be able to return quickly to their lives. But should the war drag on, more Ukrainians would seize on the chance to seek a haven in the United States, they said.
Law360: Immigration and environmental attorneys are increasingly banding together as advocacy groups on both the left and the right try to leverage environmental laws to influence immigration policy.
Law360: An Ohio federal judge on Tuesday blocked the U.S. Department of Homeland Security from considering a Biden administration mandate that had narrowed immigration enforcement priorities while making custody decisions, finding the policy overstepped sections of federal immigration law.
Lexis: On review, the United States District Court for the Eastern District of New York affirmed the denial under the “weapons bar” of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(3)(B)(iii)(V). The question on appeal is whether USCIS, in denying Kakar’s application, adequately explained the unlawfulness of Kakar’s acts under United States law, and whether in doing so it considered his claim of duress. Because we are unable to discern USCIS’s full reasoning for denying Kakar’s application or to conclude that the agency considered all factors relevant to its decision, we conclude that its decision was arbitrary and capricious under the APA.
Law360: The Eleventh Circuit ruled Thursday that the Board of Immigration Appeals erred when finding that a man’s Florida conviction for marijuana possession rendered him ineligible for a form of deportation protection.
Law360: A Texas federal judge has denied the Biden administration’s bid to transfer a group of Texas sheriffs’ challenge to the administration’s immigration enforcement policies, rejecting the argument that none of the sheriffs in the judicial district has standing to sue.
AILA: Advance copy of DHS and DOJ interim final rule (IFR) on asylum processing. The IFR will be published in the Federal Register on 3/29/22 and will be effective 60 days from the date of publication, with comments accepted for 60 days.
AILA: DOS issued guidance on visas for Ukrainian children undergoing intercountry adoption or who previously traveled for hosting programs in the United States. The Ukrainian government is not currently approving children to participate in host programs in the United States. More details are available.
AILA: EOIR updated appendix O of the policy manual with adjournment code 22. The reason is “Respondent or representative rejected earliest possible hearing date,” and the definition is “Hearing adjourned due to respondent or representative rejecting earliest possible hearing date.”
AILA: HHS 60-day notice and request for comments on proposed revisions to the Family Reunification Packet of forms for potential sponsors of unaccompanied children. Comments are due 60 days after publication of the notice. (87 FR 16194, 3/22/22)
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
The idea that the DHS “New American Gulag” (“NAG”) doesn’t restrict attorney access is absurd! A primary reason for detention in obscure, out of the way, hard to reach places like Jena, LA, Lumpkin, GA, amd Dilley, TX is to inhibit representation and increase the pressure on detainees to abandon claims and take “final orders of removal.”
That goes hand in hand with staffing these prisons with DOJ’s wholly owned judges who are renowned for denying bond and summarily denying most asylum claims. That a disproportionate number of these facilities are located in Federal Judicial Circuits five and eleven, notorious for anti-due process, anti-human-rights, anti-immigrant “jurisprudence,” is no coincidence either.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
With respect to the “categorical approach,” as my distinguished colleague Judge Jeffrey Chase has pointed out, EOIR has actually “institutionalized” resistance to and manipulation of this analysis to promote results unfavorable to immigrants and pleasing to DHS!
As several related Supreme Court decisions sealed the matter, the Board in 2016 was finally forced (at least on paper) to acknowledge the need to make CIMT determinations through a strict application of the categorical approach. However, as Prof. Koh demonstrates with examples from BIA precedent decisions, since 2016, the Board, while purporting to comply with the categorical approach, in fact has expanded through its precedent decisions the very meaning of what constitutes “moral turpitude,” enabling a greater number of offenses to be categorized as CIMTs.
Consistent with this approach was a training given by now-retired arch conservative Board member Roger Pauley at last summer’s IJ training conference. From the conference materials obtained by a private attorney through a FOIA request, Pauley appears to have trained the judges not to apply the categorical approach as required by the Supreme Court when doing so won’t lead to a “sensible” result. I believe the IJ corps would understand what this administration is likely to view as a “sensible” result. Remember that the IJs being trained cannot have more than 15 percent of their decisions remanded or reversed by the BIA under the agency’s completion quotas. So even if an IJ realizes that they are bound by case law to apply the categorical approach, the same IJ also realizes that they ignore the BIA’s advice to the contrary at their own risk.
As both of these incidents show, the Biden Administration under Mayorkas and Garland has failed to bring accountability or intellectual honesty to many parts of the broken immigration justice system they inherited from the Trump regime. The disgraceful “atmosphere of unaccountability” continues to predominate at DHS and DOJ.
Claudia Cubas Hon. Claudia R. Cubas U.S. Immigration Judge Hyattsville (MD) Immigration Court Photo: berkleycenter.georgetown.edu
Claudia R. Cubas, Immigration Judge, Hyattsville Immigration Court
Claudia R. Cubas was appointed as an Immigration Judge to begin hearing cases in March 2022. Judge Cubas earned a Bachelor of Arts in 2005 from the University of St. Thomas, in Houston, and a Juris Doctor in 2008 from the University of Maryland Francis King Carey School of Law. From 2018 to 2022, she was the Litigation Director at the Capital Area Immigrants’ Rights (CAIR) Coalition in the District of Columbia. She held the following roles at the CAIR Coalition: from 2016 to 2018, Senior Program Director; from 2014 to 2016, Program Director; from 2013 to 2014, Supervising Attorney for the Legal Orientation Program; and from 2011 to 2012, Staff Attorney. From 2009 to 2011, she was an Equal Justice Works AmeriCorps Legal Fellow at the Central American Resource Center, in the District of Columbia. From 2008 to 2009, she was an Attorney in private practice. Judge Cubas is a member of the Maryland State Bar.
Hon. Ayodele Gansallo U.S. Immigration Judge Hyattsville (MD) Immigration Court PHOTO: Penn Law
Ayodele A. Gansallo, Immigration Judge, Hyattsville Immigration Court
Ayodele A. Gansallo was appointed as an Immigration Judge to begin hearing cases in March 2022. Judge Gansallo earned a Bachelor of Laws in 1985 from Leicester University, England. From 1985 to 1986, she attended the Guildford College of Law, and completed the program for Solicitors. She earned a Master of Laws from Temple University Beasley School of Law in 1998. From 2021 to 2022, she was the Co-Director of Legal Services with the Hebrew Immigrant Aid Society of Pennsylvania (HIAS PA), in Philadelphia. From 1998 to 2020, she was the Senior Staff Attorney with HIAS PA. From 1994 to 1997, she was the Legal Director and Policy Coordinator with The Joint Council for the Welfare of Immigrants in London. From 1992 to 1994, she was the Solicitor with the Greater Manchester Immigration Aid Unit in Manchester, England. From 1988 to 1989, she was a Solicitor with Michael Freeman and Co, in London. From 1987 to 1988, she was a trainee Solicitor with the London Borough of Islington, in London. Judge Gansallo is a member of the New York State Bar.
Hon Kyle A. Dandelet U.S. Immigration Judge NY (Federal Plaza) Immigration Court PHOTO: immigrantarc.org
Kyle A. Dandelet, Immigration Judge, New York – Federal Plaza Immigration Court
Kyle A. Dandelet was appointed as an Immigration Judge to begin hearing cases in March 2022. Judge Dandelet earned a Bachelor of Arts in 2004 from Georgetown University and a Juris Doctor in 2010 from Harvard Law School. From 2017 to 2022, he was the Pro Bono Immigration Attorney at Cleary Gottlieb Steen & Hamilton LLP (Cleary Gottlieb) in New York. From 2015 to 2017, he was a Senior Staff Attorney in Sanctuary for Families’ Immigration Intervention Project at the New York City Family Justice Center in the Bronx, New York. From 2010 to 2012, and from 2013 to 2015, he was a Litigation Associate with Cleary Gottlieb. From 2012 to 2013, he clerked for the Honorable Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York. Judge Dandelet is a member of the New York State Bar.
Notably, and in marked contrast to earlier selections, particularly under Trump, all the new judges appear to have prior immigration and/or judicial experience. Significantly, 20 appear to have prior experience representing individuals in Immigration Court and a number have immigration experience with both the private sector and DHS. Some have notable pro bono, human rights, or civil rights credentials. Fittingly for “Women’s History Month” and for the composition of the upcoming generation of new attorneys (55% of law students are now women), 17 of the new judges are women.
Obviously, with more than 600 Immigration Judges nationwide, 25 new judges, no matter how well-qualified, can’t solve all the problems of a failing, unfair, and badly “out of whack” system in the near future. But, every improvement in the delivery of justice on the trial level saves lives, inspires others, reduces unnecessary appeals and remands, and puts pressure on the BIA to pay attention to detail and stop just “regurgitating the discredited Sessions/Barr/DHS party line.” Although one perhaps wouldn’t know it from reading BIA decisions, the “legal times” are changing, even if the BIA often appears tied to the least happy aspects of the past.
I have known and admired the work of Judge Claudia Cubas for years. She appeared before me at the Arlington Immigration Court, helped keep our pro bono program humming along, and was a charismatic and inspirational role model for JLCs, interns, law students, and a new generation of due-process-oriented lawyers in the DMV metro area and beyond.
Judge Ayo Gansallo is another amazing legal scholar-advocate. We worked together with Professor Michele Pistone of Villanova on the VIISTA Villanova program for training more non-attorney representatives to assist asylum seekers. It was there that I was introduced to Understanding Immigration Law & Practice, the amazing textbook that she co-authored with Judith Bernstein-Baker. It jumped out at me as just the “practically oriented” book I was looking for! It has now become a staple of my Immigration Law & Policy class at Georgetown Law. The students love the “practical approach” with lots of real life examples and problems that we can work on in groups during class.
While I don’t personally know Judge Dandelet, he is a “personal hero” of my friend, RoundTable colleague, and fellow blogger Judge “Sir Jeffrey” Chase!That really tells me all I need to know about why he will be an intellectual leader and a “game changer” on the bench.
There appear to be many other fine, well-qualified judges on this list that I haven’t personally encountered on my trip through the world of immigration. But, I do look forward to becoming familiar with their work through the extensive feedback I get from members of the NDPA throughout America.
Congrats to all the new judges! Thanks for taking on the challenge. Insist on equal justice for all, respect for everyone (including attorneys) coming before the court, and timely scholarly excellence that focuses on correct results — tune out all the other BS that all too often infects EOIR and interferes with great judging. And, of course, most important: “Due Process Forever!” It’s the “name of the game” — the ONLY game in town!
For the last year, “Courtside” has been ripping the incredibly poor, timid, stunning lack of vision leadership, expertise, common sense, and morality in the Biden Administration’s failure to restore and expand a robust overseas refugee program and to enforce the rule of law and due process in our asylum system at the border and in the US. Even as I write this, Garland’s failed BIA, with too many Trump restrictionist holdover judges, continues to crank out bad asylum precedents and anti-immigrant legally incorrect appellate decisions and precedents.
DOJ mindlessly continues to advance and defend the indefensible in Federal Court. It’s “Miller Lite” on steroids! Squandering taxpayer money, wasting scarce pro bono resources, and worst of all, endangering human lives!
This guy has to be thrilled with Garland’s approach to human rights, racial justice, and due process @ DOJ! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
Essential human rights issues like providing definitive, generous, positive guidance to move gender-based asylum cases through the system, correcting “intentionally overly restrictive” and ridiculously hyper-technical, legally wrong, highly impractical applications of supposedly “generous” asylum laws, lack of common sense, expertise, understanding, and humanity remain endemic in Garland’s broken “court” system and the USCIS Asylum Offices which are supposed to be under their legal guidance.
The border effectively remains illegally and irrationally closed to refugees seeking asylum! Absurdly, the decisions as to who lives and who dies are left to the unfettered, unreviewable, “discretion” of Border Patrol Agents who are glaringly unqualified to make them. There aren’t even any known criteria in effect!
Indeed, that’s the precise reason why Congress created Asylum Officers and put them and Immigration Judges into the life or death asylum screening process, only to have Trump abrogate the law as Federal Courts meekly and fecklessly stood by! Hardly America’s finest moment!
There is plenty of irresponsibility to go around! But, dilatory “What Me Worry” AG Merrick Garland and his feckless lieutenants Lisa Monaco, Vanita Gupta, Kristen Clarke, and Liz Prelogar, along with DHS Secretary Alejandro Mayorkas, deserve “special censure” for the brewing, unnecessarily out of control humanitarian and equal justice crisis!
Garland’s tone-deaf approach to human rights and the rule of law now threatens the international order and the lives of perhaps millions of refugees and asylum seekers! PHOTO: Wikipedia Commons
The Biden administration’s immigration policy to date has been shambling. It can now do one big thing right: step up, grant humanitarian parole and help resettle Ukrainian refugees.
Catherine Rampell Opinion Columnist Washington Post
Trump’s xenophobic policies had consequences beyond the cruelty inflicted while he was in office. Ultimately, they hobbled our ability to provide aid during a humanitarian catastrophe and thereby protect our own national security interests. Now, Biden must not only respond to the current crisis but also repair our institutions so that we have greater capacity to deal with future ones.
I’m sure traumatized Ukrainians and Russian dissidents being improperly turned back at our border were comforted by the following tone-deaf blather from Mayorkas as reported by Deepa Fernandes in the SF Chron:
Deepa Fernandes Immigration Reporter SF Chronicle PHOTO: SF Chron
On Thursday, Homeland Security Secretary Alejandro N. Mayorkas told reporters that Border Patrol agents were reminded they have some leeway with regard to enforcing Title 42, particularly when it comes to those fleeing the crisis in Ukraine, BuzzFeed News reported.
“This was policy guidance that reminded (border officers) of those individualized determinations and their applicability to Ukrainian nationals as they apply to everyone else,” the online news outlet quoted Mayorkas as telling reporters.
Come on, man! You’ve got to be kidding me!
Belatedly, it appears that the Biden Administration is now “considering” restoring the rule of law at the borders (something they actually promised during the election), according toAlexandra Meeks over at CNN:
ALexandra Meeks Current News Reporter CNN PHOTO: Linkedin
The Biden administration is preparing for the potential of mass migration to the US-Mexico border when a Trump-era pandemic emergency rule ends. The influx is expected because officials are considering the possibility of terminating a public health order known as Title 42, which border authorities have relied on to turn away migrants, sources familiar with the discussions said. Internal documents, first reported by Axios, estimate around 170,000 people may be coming to the US border and some 25,000 migrants are already in shelters in Mexico. The Department of Homeland Security has asked department personnel to volunteer at the Mexico border in response.
But, it’s not clear that they have any real plan in mind. That’s certainly the case in Garland’s dysfunctional, astoundingly backlogged (1.6 million known cases) Immigration “Courts” led by a Trump restrictionist BIA. “Gauleiter” Stephen Miller must evilly chuckle every morning at how Garland has left his “designed for White Nationalism” system largely in place and continuing to shaft and screw asylum seekers on a daily basis.
And, no, 170,000 migrants arriving at the border, not all of whom are seeking asylum, isn’t a “mass migration” emergency! It’s a fairly predictable movement of migrants at a pace that should be well within the capabilities of our nation.
Treat them with respect. Promptly and properly screen them with qualified Asylum Officers. Timely welcome those many who qualify for protection with competent expert Immigration Judges. End the anti-asylum nonsense and move the many grantable asylum, withholding, and CAT cases through the system. Develop humane, orderly responses for those who are rejected. Get in place a new BIA that understands asylum law, due process, and human rights. Empower them to “knock heads” of IJs and Asylum Officers who won’t let go of the White Nationalist “reject, don’t protect” program!”
It’s not “rocket science.” 🚀 Not by a long shot!
No, an “emergency mass migration situation” is 3.2 million refugees fleeing war in Ukraine in three weeks and arriving in allied nations like Poland, Romania, and Moldova who have far fewer resources and ability to respond than the U.S.! These are also nations who legitimately fear that they could be next on Russia’s “hit list.”
And, while the humanitarian crisis is brewing, what’s Garland up to? He beefing up his already-record-setting Immigration Court backlog with “kiddie cases” (0-4 year olds, incredibly) — to the extent anyone can even figure it out, given his notoriously flawed and unprofessional record keeping at EOIR. See, e.g., https://trac.syr.edu/immigration/reports/681/.
Garland and his top lieutenants are too busy filling the Immigration Courts with these desperados in the 0-4 age group to worry about restoring due process or treating asylum seekers fairly! PHOTO: Sean Choe, Creative Commons License
Honestly! But, don’t say that “Courtside,” Jeffrey Chase Blog, Dan Kowalski, ImmigrationProf Blog, CGRS, Human Rights First, NIJC, AILA, KIND, NCIJ, ABA, and many other experts didn’t warn against this grotesque failure long ago — often predating the 2020 election!
I understand that “no fly zones” are more complicated than most American pols and media wags think and that there are challenges to waging war from afar without actually declaring war on Russia. But, repairing our refugee, asylum, and immigration systems, and restoring due process to our courts are not in this category of difficulty.
It’s beyond time for the Biden Administration, particularly Mayorkas and Garland, to get the lead out, grow backbones, get rid of the remnants of Trumpism in their ranks— personnel, substance, process — and run a refugee and asylum legal system that serves our and our allies’ needs. One that is values and law based! One that our nation can be proud of, rather than embarrassed before the world! End the Clown Show, in Falls Church and throughout our muddling immigration and (non) human rights bureaucracy!🤡
The Garland/Mayorkas “Plan” for human rights and immigrant justice is proving as deadly as it is dysfunctional. PHOTO: Thomas Hawk Creative Commons Amateur Night
Time’s a wasting and people are dying! ⚰️ Enough of “Amateur Night at the Bijou.”☠️ Nobody’s laughing!🤮
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
Note: The briefing is back after a short hiatus while I transitioned to a new position at NIJC. It will be coming from my gmail for a few weeks while I set up a more long-term distribution system. In the meantime, please add egibson@heartlandalliance.org to your trusted contact list so that any future messages do not go to spam.
CONTENTS (click to jump to section)
PRACTICE ALERTS
NEWS
LITIGATION & AGENCY UPDATES
RESOURCES
EVENTS
PRACTICE ALERTS
eROPs: EOIR has begun digitizing some paper records of proceedings (ROPs). Once an ROP is an eROP, only ECAS electronic filing will be permitted on that case. However, this will be a lengthy process and it sounds like EOIR is prioritizing conversion of smaller records first.
DHS: Individuals eligible for TPS under this designation must have continuously resided in the United States since March 1, 2022. Individuals who attempt to travel to the United States after March 1, 2022 will not be eligible for TPS.
USCIS: U.S. Citizenship and Immigration Services today announced that it is updating the USCIS Policy Manual to consider deferred action and related employment authorization for noncitizens who have an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, for Special Immigrant Juvenile (SIJ) classification but who cannot apply to adjust status to become a lawful permanent resident (LPR) because a visa number is not available.
AP: A federal appeals court on Friday upheld sweeping asylum restrictions to prevent spread of COVID-19 but restored protections to keep migrant families from being expelled to their home countries without a chance to plead their cases. Almost simultaneously, a federal judge in another case ruled that the Biden administration wrongly exempted unaccompanied children from the restrictions and ordered that they be subject to them in a week, allowing time for an emergency appeal.
Bloomberg: The estimated wait time for a work permit has risen to eight to 12 months, up from about three months in 2020, according to data from U.S. Citizenship and Immigration Services.
Law360: Texas’ Operation Lone Star border security initiative has expanded over the past year despite courtroom setbacks revealing cracks in its legal foundation, and it appears poised to grow further unless the federal government steps in to confront it.
SCOTUS: “Wooden committed his burglaries on a single night, in a single uninterrupted course of conduct. The crimes all took place at one location, a one-building storage facility with one address. Each offense was essentially identical, and all were intertwined with the others. The burglaries were part and parcel of the same scheme, actuated by the same motive, and accomplished by the same means.”
SCOTUSblog: The Supreme Court on Wednesday [in oral arguments] returned to the scope of the right to sue federal officers for damages under Bivens v. Six Unknown Named Agents, in a case arising from events surrounding an (unfairly) disparaged inn and suspicious characters near the U.S.-Canada border.
Lexis: As we noted above, while (b)(4) requires “changed country conditions,” (b)(3) does not. Thus, the BIA’s reference to a “material change in country conditions” and the analysis that followed shows that the BIA applied § 1003.23(b)(4). In applying the standard of § 1003.23(b)(4) to a timely filed motion, the BIA acted contrary to law.
Lexis: . After he pled guilty to first-degree home invasion, the Department of Homeland Security initiated removal. But the removal didn’t go as planned: DHS failed to show that Jasso was in fact removable, and the immigration judge terminated the proceeding. So DHS tried again. It started a second removal proceeding based on a new legal theory but the same underlying facts. The problem? The doctrine of claim preclusion prevents parties from litigating matters they failed to raise in an earlier case. Because claim preclusion barred the second removal proceeding, we grant the petition for review, vacate, and remand.
Reuters: A federal appeals court on Monday declined to dismiss an “unprecedented” criminal case filed during the Trump administration against a Massachusetts judge accused of impeding a federal immigration arrest of a defendant in her courtroom.
Law360: Sixteen attorneys general of Democratic-led states, including the District of Columbia, are defending a new Illinois law phasing out immigrant detention contracts and urging the Seventh Circuit to dismiss a challenge by two Illinois counties, saying the policy does not interfere with federal enforcement of immigration law.
NYT: People with health conditions that place them at high risk from Covid-19 have been denied access to coronavirus vaccine booster shots while in federal immigration detention, the American Civil Liberties Union said in a lawsuit filed on Tuesday.
Reuters: The U.S. Embassy in Havana announced on Thursday it would increase staffing and resume some visa processing in Cuba several years after the Trump administration slashed personnel at the facility following a spate of unexplained health incidents.
AILA: EOIR will open immigration courts in Hyattsville, Maryland, and Laredo, Texas, today, February 28, 2022. The Hyattsville and Laredo immigration courts will have 16 and 8 immigration judges, respectively. Both courts will hear transferred cases; EOIR is notifying parties whose locations have changed.
AILA: Due to conflict in both regions, DHS will extend and redesignate South Sudan for TPS for 18 months, and designate Sudan for TPS for 18 months. The extension and redesignation of South Sudan is in effect from 5/3/2022, through 11/3/2023. The memo details eligibility guidelines.
AILA: USCIS announced that its website will now feature a Lockbox Filing Location Updates page, where customers can track when lockbox form filing locations are updated. Updates will also be emailed and announced on social media.
USCIS: USCIS has clarified Form I-9 guidance related to Native American tribal documents. We also published new guidance regarding T nonimmigrants (victims of human trafficking) and U nonimmigrants (victims of certain other crimes) in the M-274, Handbook for Employers. USCIS has provided these updates to respond to customer needs.
Thanks for all you do for due process and fundamental fairness in America, Liz! And congrats again to both you and NIJC/Heartland Alliance on your new position!
My good friend Heidi Altman, Director of Policy at NIJC, should be delighted, as Liz is a “distinguished alum” of both the CALS Asylum Clinic at Georgetown Law (where Heidi was a Fellow) and my Refugee Law & Policy class. Liz also served as an Arlington Intern and a Judicial Law Clerk at the NY Immigration Court. Liz has been a “powerful force for due process, clear, analytical writing, and best practices” wherever she has been! So, I’m sure that will continue at NIJC! Clearly, Liz is someone who eventually belongs on the Federal Bench at some level.
Heidi Altman Director of Policy National Immigrant Justice Center PHOTO: fcnl.org
Liz’s mention under “Litigation” of the Supremes’ decision in Wooden v U.S., where Justice Kagan for a unanimous Court interpreted the term “single occasion” broadly in favor of a criminal defendant, raises an interesting immigration issue.
Two decades ago, in Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), the BIA basically “nullified” the INA’s statutory exemption from deportation for multiple crimes “arising out of a single scheme of criminal misconduct.” Rejecting the 9th Circuit’s contrary ruling, the BIA essentially read the exception out of the statute by effectively limiting it to lesser included offenses.
How narrow was this interpretation? Well, in 21 years on the immigration appellate and trial benches, I can’t recall a single case where the “scheme” did not result in deportation under Adetiba. Taking advantage of the outrageous “doctrine of judicial task avoidance” established by the Supremes in the notorious “Brand X,”the BIA eventually took the “super arrogant” step of nullifying all Circuit interpretations that conflicted with Adetiba! Matter of Islam, 25 I&N Dec. 637 (BIA 2011).
Surprisingly, in my view, in his concurring opinion in Wooden, Justice Gorsuch actually applied the “rule of lenity” — something else the “21st Century BIA” has basically “read out of the law” in their haste to deport! Here’s what Justice Gorsuch said:
Today, the Court does not consult lenity’s rule, but neither does it forbid lower courts from doing so in doubtful cases. That course is the sound course. Under our rule of law, punishments should never be products of judicial conjecture about this factor or that one. They should come only with the assent of the people’s elected representatives and in laws clear enough to supply “fair warning . . . to the world.” McBoyle, 283 U. S., at 27.7
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
As the ongoing (“backlog enhancing”) “Pereira fiasco” shows, the BIA has had little problem “blowing off” or distinguishing the Supremes to deport or deny when asked by DHS Enforcement to do so. Today’s BIA “rule” for interpreting supposedly “ambiguous” statutes is actually straightforward, if one-sided: Adopt whatever interpretation DHS Enforcement offers even if that means “taking a pass” on a better interpretation offered by the respondent. So, I’m sure that Garland’s current “Miller Lite” BIA will simply distinguish Wooden as dealing with statutory language different from the INA and ignore its broader implications if asked to do so by “their partners” at DHS Enforcement.
But, whether all Circuits will see it that way, and/or allow themselves to continue to be humiliated by “Brand X,” or whether the issue will reach the Supremes, are different questions. In any event, immigration advocates should pay attention to Wooden, even if the BIA is likely to blow it off.
The current Supremes don’t seem to have much difficulty jettisoning their own precedents when motivated to do so! Why they would continue to feel bound by the bogus “Chevron doctrine” or its “steroid laden progeny Brand X” to follow the interpretations of Executive Branch administrative judges on questions of law is beyond me! Somewhere Chief Justice John Marshall must be turning over in his grave!
I’ve never understood crimes involving moral turpitude. I confess this after reading a recent decision of the U.S. Court of Appeals for the Eleventh Circuit that caused me to realize that I am not alone.
In Zarate v. U.S. Att’y Gen.,1 the court was confronted with the question of whether a federal conviction for “falsely representing a social security number” constitutes a crime involving moral turpitude under our immigration laws. Not surprisingly, the Board of Immigration Appeals held that it was. And yet, one of the most conservative circuit courts in the country chose not to defer to the Board’s judgment.
Reading the decision, it became clear that no one knows what a CIMT is. As the court pointed out, the term was first included in our immigration laws in the late 19th century. That fact immediately brought to mind the character of Lady Bracknell from The Importance of Being Earnest (first performed in 1895), who, upon learning that a character had been found as a baby in a satchel at a train station, responded: “To be born, or at any rate bred, in a handbag, whether it has handles or not, seems to me to display a contempt for the ordinary decencies of family life that reminds one of the worst excesses of the French Revolution. And I presume you know what that unfortunate movement led to?” If that snippet is any indicator, it seems to have been quite the era for the passing of moral judgment.
The Eleventh Circuit went on to explain that by 1914, a legal dictionary defined the term to mean “an act of baseness, vileness or depravity in the private and social duties which one owes to society, and as applied to offenses includes only such crimes as manifest personal depravity or baseness.” This standard becomes all the more elusive when one asks the obvious follow-up question “In whose view?” Lady Bracknell’s? Vladimir Putin’s? Or someone occupying an indeterminate middle point between those extremes?
It seems pretty obvious in reading the Eleventh Circuit’s opinion that the term “crime involving moral turpitude” is unconstitutionally vague. It’s nearly impossible to argue that the term provides sufficient clarity up front of the consequences of committing certain crimes when, as the Eleventh Circuit emphasized, no less an authority than former circuit judge Richard Posner remarked “to the extent that definitions of the term exist, ‘[i]t’s difficult to make sense of . . . [them].’”2
However, there is one huge obstacle preventing courts from simply brushing the term aside: in 1951, the Supreme Court nixed that idea in a case called Jordan v. De George.3 In its decision, the majority of the Court’s justices held that the term “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Of course, the Court provided no workable definition (if it had, courts today wouldn’t still be exhibiting so much confusion). But the majority did make one highly consequential pronouncement to support its shaky conclusion, claiming “The phrase ‘crime involving moral turpitude’ has without exception been construed to embrace fraudulent conduct.”
Jordan v. De George also contains a remarkable dissenting opinion written by Justice Robert H. Jackson, and joined by two of his colleagues (Justices Black and Frankfurter).
Interestingly, prior to his appointment to the Supreme Court, Justice Jackson briefly served as Attorney General under Franklin D. Roosevelt. And readers of Prof. Alison Peck’s excellent book on the history of the U.S. Immigration Court will know that as Attorney General, Jackson tried to dissuade Roosevelt from moving the INS to the Department of Justice due to the harsh consequences it would impose on immigrants, a move that Roosevelt nevertheless undertook in May 1940.4
Sitting on the high court 11 years later, Justice Jackson expressed his frustration with a majority opinion that would punish the petitioner (who had resided in the U.S. for 30 years) “with a life sentence of banishment” because he was a noncitizen. Justice Jackson pointed out that Congress had been forewarned by one of its own at a House hearing on the Immigration Act of 1917 that the term would cause great confusion, yet provided no additional clarifying language in enacting the statute.5
In the record of the same House hearing, Jackson found reason to believe that Congress meant the term to apply to “only crimes of violence,” quoting language to that effect from a witness, NYC Police Commissioner Arthur H. Woods, whose testimony (according to Jackson) “appears to have been most influential” on the subject.6
After further demonstrating the futility of finding any clear meaning for the term, Jackson stated in his dissent that the majority “seems no more convinced than are we by the Government’s attempts to reduce these nebulous abstractions to a concrete working rule, but to sustain this particular deportation it improvises another which fails to convince us…”7
In Jackson’s view, the elusiveness of the term left whether a conviction was for a CIMT or not to the view of the particular judge deciding the matter. He added “How many [noncitizens] have been deported who would not have been had some other judge heard their cases, and vice versa, we may only guess. That is not government by law.”8
Turning to the specific crime before him, which involved the failure to pay federal tax on bootlegged liquor, Jackson noted that those who deplore trafficking in liquor “regard it as much an exhibition of moral turpitude for the Government to share its revenues as for respondents to withhold them.” On the flip side, Jackson wryly observed that “Those others who enjoy the traffic are not notable for scruples as to whether liquor has a law-abiding pedigree.”9 Just for good measure, the justice added: “I have never discovered that disregard of the Nation’s liquor taxes excluded a citizen from our best society…”10
Given the term’s requirement of passing moral judgment on criminal acts, Jackson emphasized (perhaps most importantly) that “We should not forget that criminality is one thing— a matter of law—and that morality, ethics and religious teachings are another.”11
In spite of the wisdom (and wit) of Jackson’s dissent, here we are over 70 years later, with the 11th Circuit left to deal with De George in reviewing the case of someone who falsely used a Social Security number. In Zarate, counsel explained at oral argument that the reasons for his client’s action was to work and support his family, and to have medical coverage to pay for his son’s surgery.12 Counsel also argued that the crime lacked the level of immorality required for a CIMT finding, explaining that those using a false number still pay the required amount of Social Security withholding to the government, and yet are not eligible to receive Social Security benefits themselves in return unless they first obtain lawful immigration status.
The Eleventh Circuit issued a thoughtful opinion. The court understood that it was bound by De George’s view that fraud always involves moral turpitude, a stance repeatedly reinforced by courts since. But the court noted that “under the categorical approach the crime Mr. Zarate committed does not include fraud as an element or ingredient.”
Surveying BIA decisions on the topic all the way back to 1943, it found that over the years, the Board has concluded that not all false statements or deception constitute fraud. The court cited a Second Circuit unpublished opinion distinguishing between deception and fraud, as the latter generally requires “an intent to obtain some benefit or cause a detriment.”13 And the court referenced the Seventh Circuit’s observation that the statute in question covers false use of a Social Security number not only to obtain a benefit, but also “for any other purpose.” That court added “It is not difficult to imagine some purposes for which falsely using a social security number would not be “inherently base, vile, or depraved.”14
In the end, the Eleventh Circuit sent the matter back to the BIA to consider whether under the categorical approach, any and all conduct covered by the statute would involve behavior that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” The court’s decision certainly provided the Board a path to conclude otherwise.
I of course have no insight into how the Board will rule on remand. However, it seems worth adding some observations on the BIA’s problematic approach to CIMT determinations in recent years.
First, the Eleventh Circuit focused on the importance of the categorical approach in reaching the proper outcome.15 However, Kansas attorney Matthew Hoppock obtained through FOIA the PowerPoint of a presentation from the 2018 EOIR Immigration Judges training conference titled “Avoiding the Use or Mitigating the Effect of the Categorical Approach,” which was presented by a (since retired) Board Member, Roger Pauley.16 By virtue of binding Supreme Court case law, judges are required to apply the categorical approach. So why is the BIA, a supposedly neutral tribunal, training EOIR’s judges to find ways around employing this approach, or to try to reduce its impact?
This concern was further confirmed in an excellent 2019 article by Prof. Jennifer Lee Koh detailing how the BIA has repeatedly fudged its application of the categorical approach in CIMT cases.17 Prof. Koh concluded that the BIA’s approach has involved “The Board’s designation of itself as an arbiter of moral standards in the U.S., its unwritten imposition of a “maximum conduct” test that is at odds with the categorical approach’s “minimum conduct” requirement, and its treatment of criminalization as evidence of moral turpitude” which, not surprisingly, has resulted in BIA precedents expanding the number of offenses judged to be CIMTs.18
Even where the rule is applied correctly, another major problem remains. As Justice Jackson correctly stated, criminality is one thing, moral judgment quite another. And while immigration judges are expected to be experts in the law, they are not the standard bearers for what society views as base or vile.
This returns us to a question asked earlier: if not the judge, then who should be arbiter of moral standards? At the conclusion of its opinion, the Eleventh Circuit cited to a law review article by Prof. Julia Simon-Kerr which criticized how courts have “ ignored community moral sentiments when applying the standard.”19 The article’s author observed that instead of keeping the standard “up to date with the ever-evolving and often-contested morals of a pluralistic society,” courts have to the contrary “preserved, but not transformed, the set of morally framed norms of the early nineteenth century that first shaped its application.”20 In other words, it seems present-day judges too often continue to channel Lady Bracknell, rather than trying to gauge the moral sensibilities of their particular time and place.
If courts were to truly adapt to evolving societal standards, should decisions such as De George remain binding? Or should they be deemed to have provided guidance based on the morals of their time, subject to current reassessment?
Copyright 2022 Jeffrey S. Chase. All rights reserved.
Alison Peck, The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction (University of California Press, 2021) at p. 97.
The warning was provided by Adolph J. Sabath, who served in the House from 1907 to 1952, was an immigrant himself, and is described in his Wikipedia page as “a leading opponent of immigration restrictions and prohibition.”
Jordan v. De George, supra at 235.
Id. at 238.
Id. at 239-40.
Id. at 241.
Id.
Id.
Petitioner was represented by Fairfax, VA attorney Arnedo Silvano Valera.
Ahmed v. Holder, 324 F.App’x 82, 84 (2d Cir. 2009).
Arias v. Lynch, supra at 826.
Judge Gerald Tjoflat even authored a concurring opinion tutoring the BIA to properly conclude that the statute is not divisible, ensuring the application of the categorical approach on remand.
The materials can be found at: https://www.aila.org/infonet/eoir-crimes-bond.
Jennifer Lee Koh, “Crimmigration Beyond the Headlines,” 71 Stan. L. Rev. Online 267, 272 (2019).
Id. at 273.
Julia Simon-Kerr, “Moral Turpitude,” 2012 Utah L. Rev. 1001, 1007-08 (2012).
Id.
MARCH 4, 2022
Reprinted by permission.
******************
“Brilliant,” as our friend and colleague Dan Kowalski says!
There is another way in which the Supremes’ prior constitutional abdication continues to pervert the constitutional guarantee of due process today.
As Jeffrey cogently points out NOBODY — Congress, the Article IIIs, the BIA, Immigration Judges, certainly not respondents — REALLY understands what “moral turpitude” means. Consequently, the only way to properly adjudicate cases involving that issue is through an exhaustive search and parsing of Circuit law, BIA precedents, and often state court decisions.
The problem: No unrepresented immigrant — particularly one in detention where a disproportionate share of these cases are heard — has any realistic chance of performing such intricate, arcane research into all too often conflicting and confusing sources.
Therefore, in addition to the problem that originated in DeGeorge when the Supremes’ majority failed to strike down a clearly unconstitutional statute, the failure to provide a right to appointed counsel in such cases — many involving long-time lawful permanent residents of the U.S. — is a gross violation of due process. It basically adds insult to injury!
As long as migrants continue to be intentionally wrongly treated as “lesser persons” or “not persons at all” by the Supremes and other authorities under the Due Process Clause — a process known as “Dred Scottification” — there will be no equal justice under law in America!
Better, more courageous, practical, and scholarly, Federal Judges — from the Supremes down to the Immigration Courts — won’t solve all of America’s problems. But, it certainly would be an essential start!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesHon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration Judges
More NDPA Training:Tomorrow and Saturday, the New York Asylum and Immigration Law Conference will be held virtually; Sue Roy and I are among the speakers, along with many other members of the NDPA.
The Dehumanizing Work of Immigration Law is an analysis piece authored by immprof Jennifer M. Chacón (Berkeley) for the Brennan Center for Justice. It was part of a series of articles examining the “punitive excess that has come to define America’s criminal legal system.”
In her article, Chacón acknowledges that “our immigration laws are exceptionally harsh in ways that frequently defy common sense.” She notes that for many migrants “the notion that there is a ‘right way’ to immigrate is just not true.” Moreover, “our country has not always honored its own legal processes when immigrants are doing things ‘the right way.’” And, for those “long-time lawful permanent residents who have contact with the criminal legal system are often denied the chance to do things ‘the right way.’”
“Again and again,” Chacón writes, “notions of the rule of law are invoked to justify the sundering of families and communities that would, in other circumstances, seem unthinkable.”
Jennifer elegantly articulates a theme that echoes what “Sir Jeffrey” Chase and I often say on our respective blogs: It’s all about gratuitous cruelty and intentional dehumanization of “the other” — primarily vulnerable individuals of color!
But, it need not be that way! Undoubtedly, the current legislative framework is outdated, unrealistic, and often self-contradictory. Congress’s failure to address it with bipartisan, humane, common sense, practical reforms that would strengthen and expand our legal immigration system is disgraceful.
But, there are plenty of opportunities even under the current flawed framework for much better interpretations of law; more expansive, uniform, and reasonable exercises of discretion; creation and implementation of best practices; advancements in due process and fundamental fairness; drastic improvements in representation; improved expert judging; rational, targeted, “results-focused” enforcement; promoting accountability; and teamwork and cooperation among the judiciary, DHS, and the private/NGO/academic sectors to improve the delivery of justice and make the “rule of law” something more than the cruel parody it is today.
Historically, as Jennifer points out, courts have often aided, abetted, and sometimes even disgracefully and cowardly encouraged lawless behavior and clear violations of both constitutional and human rights. But, it doesn’t have to be that way in the future!
Folks like Trump, Miller, Sessions, Barr, Wolf, “Cooch,” Hamilton, McHenry, et al spent four years laser-focused on banishing every last ounce of humanity, fairness, truth, enlightenment, kindness, compassion, reasonableness, efficiency, rationality, equity, public service, racial justice, consistently positive use of discretion, practicality, and common sense from our immigration and refugee systems.
Biden and Harris promised dynamic change, improvement, and a return to a values-based approach to immigration. Once in office, however, they have basically “gone Miller Lite” —preferring to blame and criticize the Trump regime without having a ready plan or taking much positive action to bring about dynamic systemic improvements. In fact, as pointed out by Jennifer, Garland and Mayorkas have continued to apply, defend, and to some extent rely on the very vile policies they supposedly disavowed. Talk about disingenuous!
Drastic improvements in the current system are “out there for the taking,” with or without Congressional assistance. But, the will, skill, and guts to make the “rule of law” something other than an intentionally cruel, failed “throw away slogan” appears to be sorely missing from Biden Administration ldeadership!
Maybe, the beginning of Jennifer’s essay “says it all” about the abject failure of Garland and others to “get the job done:”
During his confirmation hearing to be attorney general, when asked about the Trump administration’s policy of separating children from their parents at the U.S.–Mexico border, Merrick Garland repudiated the policy, stating “I can’t imagine anything worse.”
Yet, now that he is confirmed, Attorney General Garland presides over an agency that represents the U.S. government in court arguing every day that parents should be separated from their children, brothers from sisters, grandchildren from grandparents.
Obviously, that’s the problem! Garland actually “can’t imagine” the human impact of government-imposed family separation! Nor can he “imagine” what it’s like to be caught up in his unfair, biased, and broken Immigration “Courts” as a party or a lawyer. The “retail level” of our justice system “passed him by” on his way to his judicial “comfort zone.”
“Justice” Star Chamber Style — “AG Garland ‘can’t imagine’ what it’s like to be caught up in the dysfunctional, abusive, and unfair ‘court system’ that he runs!”
Unless and until we finally get an Attorney General who has either experienced or has the actual imagination necessary to feel the daily horrors and indignity that our unnecessarily broken immigration justice system inflicts on real human beings, American justice and human values will continue to spiral downward! ☠️🤮
And, there will be no true racial justice in America without justice for immigrants!
