Honorable George T. Chew – immigrationcourtside.com

⚖️ FOLLOWNG SCATHING REPORT ON ABUSE OF KIDS IN IMMIGRATION COURT, EOIR ANNOUNCES SOME REFORMS — Rekha Sharma-Crawford Reports!

Rekha Aharma-Crawford — Rekha Sharma-Crawford ESQUIRE
Partner and Co-Founder Sharma-Crawford Law
Kansas City, KS

Rekha writes on LinkedIn:

A major step towards acknowledging that the best interest of the child must play a critical role in immigration cases. This was an idea I raised over 10 years ago with my friend and colleague, the brilliant Lory Rosenberg. Later the idea again was put forward with two additional brilliant colleagues, Paul Schmidt and Susan Roy. Sometimes it takes a very long time, but the right approach can’t be hidden forever. So pleased to see it is finally seeing some daylight.

Here’s the Memorandum from EOIR Director David L. Neal:

https://www.justice.gov/d9/2023-12/dm-24-01.pdf

Here’s the recent UCLA Center for Immigraton Law & Policy report on EOIR’s systemic failure to provide due process for children in Immigration Court:

🤮☠️ AS CONGRESS ENGAGES IN TRUTH & REALITY FREE (NON) DEBATE ON HOW TO INFLICT MORE CRUELTY AND MAYHEM ON VULNERABLE ASYLUM SEEKERS, THE REAL IMMIGRATION PROBLEMS GO UNADDRESSED — “No Fair Day” Documents Continuing Abuse Of Kids In Immigration Court!

Here’s a link to the “Sharma-Crawford, Rosenberg, Roy, Schmidt article” on “Best Interests of The Child in Immigration Court:”

🇺🇸⚖️ “BEST INTERESTS OF THE CHILD” IS A WIDELY-ACCEPTED EMPIRICALLY- SUPPORTED CONCEPT OF AMERICAN LAW — BUT NOT @ GARLAND’S DYSFUNCTIONAL EOIR! — The “Gang of 4,” Lory, Rekha, Sue, & I, With “Practical Scholarship” On How & Why To Argue For 21st Century Jurisprudence In A System Too-Often Wedded To The Past!

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

As noted by my Round Table colleague “Sir Jeffrey” Chase, our Round Table has spoken out about the need for a separate Immigration Court system for children:

As you know, our Round Table signed on to a letter of support for proposed legislation to create a Children’s Immigration Court.

[Director Neal’s statement is] a positive administrative development.

Here’s my take:

While progress is always welcome, this statement shrouds the concept of “best interest of the child” (“BIC”) with legal gobbledygook and bureaucratic doublespeak. (P. 3 of Neal Memo under “Legal Standards”).
Here’s what a clear, correct statement on BIC would look like:

BIC, regardless of whether or not presented by a “Child Advocate” or incorporated in a “Best Interests Determination” (“BID”), can be directly relevant to issues of removability. For example, evidence of removability obtained by methods that clearly conflict with the BIC could be found unreliable or the result of “egregious misconduct” for the purposes of determining removability.

The BIC can also be highly relevant to issues of eligibility for relief. For example, a government or society that deprives certain children of all meaningful educational oportunities might well be engaging in persecution.

In addition, in NLPR cancellation cases, the BIC could be persuasive, even determinative, evidence that removal of a parent will result in “exceptional and extremely unusual hardship” to a USC or LPR child or children.

3) Finally, since the EOIR Director is an administrator, not a quasi-judicial official, his or her policies have a distinct “you can take it or leave it” effect in Immigration Court. Therefore ameliorative statements from the Director, no matter how well-intended, are only effective if the BIA is willing and able to insist on and enforce “best practices” on Immigration Judges, preferably through precedent decisions and reassigning cases away from those IJs who show repeated contempt for due process and best practices.

Unfortunately, the current version of the BIA has, as a body, shown neither much sympathy nor concern for the substantive and due process rights of asylum seekers and other immigrants in Immigration Court. Unless and until Garland “cleans house” and appoints a BIA where all Appellate Judges are immigration/human rights experts laser focused on due process and best practices in Immigration Court — and not afraid of enforcing them uniformly in individual cases and incorporating them in binding precedents — the Director’s latest somewhat ameliorative statement is likely to be as toothless in practice as past efforts.

To a large extent, that’s a “nutshell” of why Garland’s Immigration Courts are in dire failure that threatens our entire democracy.

Unfortunately, that we are three years into this Administration and Garland is still bumbling along with a BIA that largely represents the mistakes and shortcomings of his predecessors suggests that waiting for him to “get religion” on the need for expertise, due process, fundamental fairness, and best practices at EOIR will continue to be an exercise in “Waiting for Godot!”

Immigration practitioners waiting for Garland to institute “due process, fundamental fairness, and best practices” as the sole mission of his EOIR “courts.” It could be a long wait. Very long! Too long!
Naseer’s Motley Group in The Rose Bowl
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December 8, 2011

🇺🇸 Due Process Forever!

PWS

12-22-23

“GANG” OF RETIRED US IMMIGRATION JUDGES IMMEDIATELY CONDEMNS LATEST OUTRAGEOUS ATTACK ON ASYLUM LAW, DUE PROCESS, & HUMAN RIGHTS BY SESSIONS IN MATTER OF A-B-!

http://www.aila.org/infonet/retired-ijs-and-former-members-of-the-bia-issue

Retired Immigration Judges and Former Members of the Board of Immigration Appeals Statement in Response to Attorney General’s Decision in Matter of A-B-.

As former Immigration Judges with decades of experience at the trial and appellate level, we consider the Attorney General’s decision an affront to the rule of law. As former judges, we understand that in order to be fair, case law must develop through a process of impartial judicial analysis applying statute, regulations, case law, and other proper sources to the facts of the case.

The life-or-death consequences facing asylum applicants makes it extremely important to keep such analysis immune from the political considerations that appointed cabinet members are subject to.

The BIA’s acknowledgment that a victim of domestic violence may qualify for asylum as a member of a
particular social group was the culmination of a 15 year process through the immigration courts and BIA. The issue was certified by three different Attorneys General (one Democrat and two Republican), who all chose in the end to leave the final determination to the immigration judges and the BIA. The private bar, law enforcement agencies (including DHS), the BIA, and the circuit courts all agreed with this final determination.

What is more, a person who suffers persecution that is perpetrated by private parties whom their government cannot or will not control, is equally eligible for asylum protection under both US law and international refugee treaties.

For reasons understood only by himself, the Attorney General today erased an important legal development
that was universally agreed to be correct. Today we are deeply disappointed that our country will no longer offer legal protection to women seeking refuge from terrible forms of domestic violence from which their home countries are unable or unwilling to protect them. We hope that appellate courts or Congress through legislation will reverse this unilateral action and return the rule of law to asylum adjudications.

Sincerely,

Honorable Steven R. Abrams

Honorable Sarah M. Burr

Honorable Jeffrey S. Chase

Honorable Bruce J. Einhorn

Honorable Cecelia Espenoza

Honorable Noel Ferris

Honorable John F. Gossart, Jr.

Honorable William P. Joyce

Honorable Carol King

Honorable Elizabeth A. Lamb

Honorable Margaret McManus

Honorable Susan Roy

Honorable Lory D. Rosenberg

Honorable Paul W. Schmidt

Honorable Polly A. Webber

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AILA Doc. No. 18061134. (Posted 6/11/18)

List of Retired Immigration Judges and Former BIA Members
The Honorable Steven R. Abrams served as an Immigration Judge in New York City from 1997 to 2013 at JFK Airport, Varick Street, and 26 Federal Plaza. From 1979 to 1997, he worked for the former Immigration and Naturalization Service in various capacities, including a general attorney; district counsel; a Special U.S. Attorney in the Eastern District of New York and Alaska. Presently lectures on Immigration law in Raleigh, NC.
The Honorable Sarah M. Burr served as a U.S. Immigration Judge in New York from 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit. She currently serves on the Board of Directors of the Immigrant Justice Corps.
The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a sole practitioner and volunteer staff attorney at Human Rights First. He also was the recipient of the American Immigration Lawyers Association’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.
The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. He is also a contributing op-ed columnist at D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.
The Honorable Cecelia M. Espenoza served as a Member of the Executive Office for Immigration Review (“EOIR”) Board of Immigration Appeals from 2000-2003 and in the Office of the General Counsel from 2003- 2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer and Senior FOIA Counsel. She is presently in private practice as an independent consultant on immigration law, and a member of the World Bank’s Access to Information Appeals Board. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997-2000) and the University of Denver College of Law (1990-1997) where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on Immigration Law. She is a graduate of the University of Utah and the University of Utah S.J. Quinney College of Law. She was recognized as the University of Utah Law School’s Alumna of the Year in 2014 and received the Outstanding Service Award from the Colorado Chapter of the American Immigration Lawyers Association in 1997 and the Distinguished Lawyer in Public Service Award from the Utah State Bar in 1989-1990.
The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and an attorney advisor to the Board from 2013 to 2016, until her retirement. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.
The Honorable John F. Gossart, Jr. served as a U.S. Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in
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AILA Doc. No. 18061134. (Posted 6/11/18)

immigration court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor of law at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor of law at the University of Maryland School of Law also teaching immigration law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland and the former Maryland Institute for the Continuing Education of Lawyers. He is also a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.
The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. Subsequent to retiring from the bench, he has been the Managing Partner of Joyce and Associates with 1,500 active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.
The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary Board member for six months between 2010 and 2011. She previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues. The Honorable Elizabeth A. Lamb
Judge Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench after twenty-seven years in January 2018. She received a Bachelor of Arts degree from the Catholic University of America in 1973, and a Juris Doctorate from Brooklyn Law School in 1983. Judge McManus was an attorney for Marion Ginsberg, Esquire from 1989 to 1990 in New York. She was in private practice in 1987 and 1990, also in New York. Judge McManus worked as a consultant to various nonprofit organizations on immigration matters including Catholic Charities and Volunteers of Legal Services from 1987 to 1988 in New York. She was an adjunct clinical law professor for City University of New York Law School from 1988 to 1989. Judge McManus served as a staff attorney for the Legal Aid Society, Immigration Unit, in New York, from 1983 to 1987. She is a member of the New York Bar.
The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC., a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.
The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. Sue has been in private practice for nearly 5 years, and two years ago, opened her own immigration law firm. Sue is the NJ AILA Chapter Liaison to EOIR, is the Vice Chair of
was appointed as an Immigration Judge in September 1995. She received
a Bachelor of Arts degree from the College of Mt. St. Vincent in 1968, and a Juris Doctorate in 1975 from St.
John’s University. From 1983 to 1995, she was in private practice in New York. Judge Lamb also served as an
adjunct professor at Manhattan Community College from 1990 to 1992. From 1987 to 1995, Judge Lamb
served as an attorney for the Archdiocese of New York as an immigration consultant. From 1980 to 1983, she
worked as senior equal employment attorney for the St. Regis Paper Company in West Mark, New York. From
1978 to 1980, Judge Lamb served as a lawyer for the New York State Division of Criminal Justice Services in
New York. She is a member of the New York Bar.
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AILA Doc. No. 18061134. (Posted 6/11/18)

the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Pro Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association.
The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995) extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1986-87 and 1979-81. He was the managing partner of the Washington, D.C. office of Fragomen, Del Rey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He served as an adjunct professor of law at George Mason University School of Law in 1989, and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects; and speaks, writes and lectures at various forums throughout the country on immigration law topics. He also created the immigration law blog immigrationcourtside.com.
The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando Immigration Courts. Previously, she practiced immigration law from 1980 to 1995 in her own private practice in San Jose, California, initially in partnership with the Honorable Member of Congress, Zoe Lofgren. She served as National President of AILA from 1989 to 1990 and was a national officer in AILA from 1985 to 1991. She has also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in this field, and is a graduate of Hastings College of the Law (University of California), J.D., and the University of California, Berkeley, A.B., Abstract Mathematics.
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AILA Doc. No. 18061134. (Posted 6/11/18)

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

The AP already picked up our statement in this article:

https://townhall.com/news/us/2018/06/12/sessions-excludes-domestic-gang-violence-from-asylum-claims-n2489683

U.S. Sen. Dianne Feinstein, a California Democrat, said the decision was “despicable and should be immediately reversed.” And 15 former immigration judges and Board of Immigration Appeals members signed a letter calling Sessions’ decision “an affront to the rule of law.”

“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the former judges wrote. “Today we are deeply disappointed that our country will no longer offer legal protection to women seeking refuge from terrible forms of domestic violence from which their home countries are unable or unwilling to protect them.”

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

Also, I was quoted in this article by Alan Pyke posted yesterday in ThinkProgress:

https://thinkprogress.org/jeff-sessions-asylum-domestic-violence-5e1a3e1aa996/

Marching orders, not friendly advice

The attorney general also took care to remind the judges that his decisions aren’t advice from a fellow lawyer but binding instructions from their one true boss. Though they are termed “judges” and wear robes behind a bench in court, the immigration judiciary is essentially a staff arm of the Attorney General rather than the independent arbiters that most envision when hearing their job titles.

Sessions’ frank expression of expectations was jarring to retired immigration judge Paul Schmidt. When attorneys general addressed the training conference in the past, Schmidt said, they stuck to the kind of collegial rah-rah stuff common to executives addressing underappreciated staff — but also stressed an expectation of careful, diligent, and independent professional conduct.

“I’ve never seen an AG come and basically tell the judges they’re part of the border enforcement effort. It’s outrageous,” Schmidt said. “Whether they’re inside DOJ or not, this is supposed to be an administrative court that exercises independent judgment and decisionmaking. And he’s reduced to to where they’re little enforcement officers running around carrying out the AG’s border policies.”

Sessions did go briefly off-book on Monday to offer one conciliatory note, looking up from his notes after calling the current backlog in immigration courts“unacceptable” to acknowledge that it’s been a tougher problem than he expected. “We thought we could get those numbers down, but they’re not going down yet,” Sessions said, before returning to his prepared remarks. He did not acknowledge that his own policies have contributed to the swelling of the backlog, which hit an all-time high in May.

Immigration court backlog hits all-time high, days before Sessions speech to immigration judges

Sessions is redrawing lines more tightly atop an already perversely narrow system.

A separate ruling last Friday helps underline the severity of the limits on traumatized migrants’ rights to seek protection in the United States. In a decision pertaining to the immigration courts’ handling of those accused of providing “material support” to terrorist organizations abroad, the Board of Immigration Appeals decided even labor compelled with death threats counts as grounds to bar someone from the United States.

The Salvadoran woman whose appeals gave rise to the case had been married to a sergeant in El Salvador’s army during a bloody civil war there. Guerrillas kidnapped the woman and her husband, made her watch as he dug his own grave and was shot dead, then made her wash clothes and do other menial chores for the rebel fighters while in captivity.

This clothes-washing and death-avoiding makes her, in the DOJ’s immigration overseers’ eyes, a terrorist no better than the unnamed group — presumably the Marxist-Leninist revolutionary Farabundo Martí National Liberation Front (FMNL) — who killed her husband in front of her and forced her into servitude.

The board denied her appeals and used the case to set a broader line across all immigration courts. Violently coerced labor while imprisoned by a terror organization will permanently bar you from crossing the U.S. border to seek protection. If you try it, we’ll send you back to your captors — presumably after first taking your kids away from you, pursuant to Sessions’ new policy mandating all immigrants crossing the border without documentation be referred to criminal court and thus separated from any minors who accompanied them.

This piece has been updated with additional context about Sessions’ immigration policies and further perspective from immigration policy experts.

Read Alan’s full analysis at the above link. According to many observers, the “small aside” by Sessions in the article is the closest he’s ever come to accepting responsibility for a mess that he, the Trump Administration, and the two previous Administrations actually have caused with their horrible and highly politicized mismanagement of the U.S Immigration Courts.

For the most part, the ever disingenuous Sessions, has tried to shift blame for his gross mismanagement to the victims: migrants (particularly asylum seekers); private attorneys (particularly those heroic attorneys performing pro bono); and the beleaguered, totally demoralized U.S. Immigration Judges themselves who have been stripped of dignity, wrongfully accused of laziness, and placed under inane, sophomoric, “performance standards” — incredibly developed by Sessions and other politicos and “Ivory tower” bureaucrats who have never themselves been Immigration Judges, have no idea what is happening in Immigration Court, and are driven entirely by political bias and/or a desire to keep their comfy jobs on the 5th floor of the DOJ or in the Falls Church Tower — well away from the results of the havoc they are wreaking on local Immigration Courts every day!

What a way to “manage” one of the nation’s largest and most important court systems! The real blame here goes to Congress which created this awful mess, yet has done nothing to remove this joke of a system from the toxic incompetence of the DOJ and create an independent court system where fairness, Due Process, quality, respect, and efficient, unbiased decision-making will be the hallmarks!

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

UPDATE:

The fabulous Dan Kowalski @ LexisNexis also reminds me that our statement was the “banner, above the fold” headline on today’s bibdailyonline!

Here’s the link which also includes tons of other “great stuff” that Dan publishes!

http://www.bibdaily.com/

PWS

06-12-18

WITH HELP FROM SIDLEY AUSTIN (LA), “OUR GANG” OF RETIRED IJs WEIGHS IN WITH 5th CIR. AGAINST BIA’S WRONG-HEADED PRECEDENT IN Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018)!

Cantarero – Amicus Brief

Thanks to “Our Heroes” Jean-Claude Andre and Katelyn N Rowe of Sidley Austin LPP, LA:

HERE’S THE TITLE PAGE AND TOC:

No. 18-60115

In the United States Court of Appeals for the Fifth Circuit

WENDY YESSENIA CANTARERO LAGOS & HENRY OMAR BONILLACANTARERO,

Petitioners,

v.
JEFFERSON B. SESSIONS, III, UNITED STATES ATTORNEY GENERAL,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, BIA Nos. A206-773-719 & A206-773-720

AMICI CURIAE BRIEF OF RETIRED IMMIGRATION JUDGES AND FORMERMEMBERS OF THE BOARD OF IMMIGRATION APPEALS IN SUPPORT OFPETITIONERS AND VACATUR AND REMAND

Jean-Claude André
Katelyn N. Rowe
Sidley Austin LLP
555 West Fifth Street, Suite 4000 Los Angeles, CA 90013

(213) 896-6007 jcandre@sidley.com krowe@sidley.com

Counsel for Amici Curiae

May 23, 2018

TABLE OF CONTENTS

Identity and Interest of Amici Curiae ……………………………………………… 1

ARGUMENT …………………………………………………………………………………3

Because particular social group jurisprudence is unduly
complex and applicants face various access-to-justice
barriers, Immigration Judges and Board Members will
frequently clarify an applicant’s proposed particular social
group ……………………………………………………………………………………. 9

The decision below disregards prior precedent in which Immigration Judges and Board Members have clarified an applicant’s proposed particular social group or allowed an applicant to present a revised particular social group on
appeal ………………………………………………………………………………… 21

This Court should vacate the decision below because its ambiguous holding will encourage Immigration Judges to be intolerant of applicants’ efforts to revise their PSGs and will enable the Board to issue boilerplate decisions denying relief ….. 28

CONCLUSION ……………………………………………………………………………. 31 APPENDIX …………………………………………………………………………… App. 1

HERE’S A SUMMARY OF OUR ARGUMENT:

ARGUMENT

In their decades of experience on the bench, amici regularly assisted applicants in the process of clarifying their proposed PSGs.Amici also allowed applicants to present revised PSGs during their administrative appeals. This judicial practice has afforded Board Members the flexibility to engage in an independent, meaningful review of the evidentiary record and provide appropriate relief to applicants based on revised PSGs. See, e.g., Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA 1996) (granting the applicant asylum based on a revised PSG that the Board itself formulated). In light of the complexity of PSG jurisprudence and the various access-to-justice barriers that applicants must navigate in immigration court, it is essential that the judicial practice of clarifying PSGs is not chilled by the decision below. See, e.g.,Ardestani v. INS, 502 U.S. 129, 138 (1991) (noting “the complexity of

3

immigration procedures, and the enormity of the interests at stake . . . .”).

Because PSG cognizability is a legal determination, amici believe that Immigration Judges and Board Members are obligated to consider any potential PSG that is supported by the factual record—even if the PSG is being proposed for the first time on appeal. PSG clarification is consistent with the requirement that administrative immigration decisions “must reflect meaningful consideration of the relevant substantial evidence supporting the alien’s claims.” Abdel-Masieh v. I.N.S., 73 F.3d 579, 585 (5th Cir. 1996) (internal quotations and citations omitted); see also Matter of A-R-C-G-, 26 I&N Dec. 388, 390-91 (BIA 2014) (“The question whether a group is a ‘particular social group’ within the meaning of the Act is a question of law that we review de novo.”). In this way, the judicial practice of clarifying an applicant’s PSG to match the evidentiary record falls squarely within the traditional roles of impartial administrative immigration tribunals. SeeUNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 16 (2011) (“It is for the examiner, when investigating the facts of the case, to ascertain the reason or reasons for the persecution feared . .

4

. .”); Matter of S-M-J-, 21 I&N Dec. 722, 723 (BIA 1997) (“Although we recognize that the burden of proof in asylum and withholding of [removal] cases is on the applicant, we do have certain obligations under international law to extend refuge to those who qualify for such relief.”). Importantly, Amici did not receive reproach from the Board for clarifying proposed PSGs. Nor were amici overturned by circuit courts on the basis that the Board should not consider newly revised PSGs on appeal.

Amici believe that the decision below, Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018), if affirmed by this Court, will constitute a significant departure from the current judicial practice of PSG clarification. The Board held that it “generally will not address a newly articulated particular social group that was not advanced before the Immigration Judge.” (AR 3) This decision completely ignores an important reality of the immigration court system: that Immigration Judges and Board Members have frequently clarified applicants’ proposed PSGs.

HERE’S THE “CAST OF CHARACTERS:”

APPENDIX BIOGRAPHIES OF AMICI CURIAE

The Honorable Steven R. Abrams was appointed as an Immigration Judge in September of 1997. From 1999 to June 2005, Judge Abrams served as the Immigration Judge at the Queens Wackenhut Immigration Court at JFK Airport in Queens. He has also worked at the Immigration Courts in New York and Varick Street Detention facility. Prior to becoming an Immigration Judge, he was the Special Assistant U.S. Attorney in the Eastern District of New York in the Criminal Division in charge of immigration. Judge Abrams retired in 2013 and now lectures on immigration in North Carolina.

The Honorable Sarah M. Burr began serving as an Immigration Judge in New York in 1994. She was appointed Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills, and Varick Street immigration courts in 2006. Judge Burr served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus. She also worked as

App. 1

the supervising attorney in the Legal Aid Society immigration unit. Judge Burr currently serves on the Board of Directors of the Immigrant Justice Corps.

The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board of Immigration Appeals from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a solo practitioner and volunteer staff attorney at Human Rights First. He was also the recipient of the American Immigration Lawyers Association’s (“AILA”) annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

The Honorable George Chew was appointed as an Immigration Judge in 1995 and served until 2017, when he retired. He also previously served as a trial attorney for the former Immigration and Naturalization Service in New York from 1979 to 1981.

The Honorable John F. Gossart, Jr. served as an Immigration Judge from 1982 until his retirement in 2013 and is the former

App. 2

president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. From 1997 to 2016, Judge Gossart was an adjunct professor of law and taught immigration law at the University of Baltimore School of Law and more recently at the University of Maryland School of Law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland, and the former Maryland Institute for the Continuing Education of Lawyers. Judge Gossart is a past Board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.

The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. After retiring from the bench, he became the Managing Partner of Joyce and Associates and has 1,500

App. 3

active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.

The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary member of theBoard of Immigration Appeals for six months between 2010 and 2011. Judge King previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.

The Honorable Lory D. Rosenberg served on the Board of Immigration Appeals from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid &

App. 4

Defender Association from 2002 until 2004. Prior to her appointment to the Board, she worked from 1991-1995 as Director of the Legal Action Center at the American Immigration Law Foundation, was in private practice, and was the 1982 co-founder of the asylum and legal program at Centro Presente in Cambridge, Massachusetts. She is the author ofImmigration Law and Crimes, and was an adjunct professor of law and taught immigration law at American University Washington College of Law between 1997 and 2004. An excerpt from one of Judge Rosenberg’s separate opinions was quoted by the United States Supreme Court in its 2001 decision in I.N.S. v. St. Cyr, 533 U.S. 289 (2001). Judge Rosenberg has served as a member of the International Association of Refugee Law Judges, an elected member of the Board of Governors of AILA, a Board Member of the Federal Bar Association, Immigration Law Section. She also frequently lectures and trains immigration attorneys on current topics of complexity, including asylum and refugee law, human rights, and the intersection of criminal and immigration law. Judge Rosenberg is the founder of the Immigration Defense and Expert Advocacy Solutions (IDEAS) Consulting and Coaching, LLC, where she provides legal mentoring, consulting, and personal and

App. 5

business coaching for immigration lawyers. She currently serves as Senior Attorney and Advisor for the Immigrant Defenders Law Group, PLLC.

The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General’s Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the Department of Homeland Security Office of Chief Counsel in Newark, New Jersey. She then became an Immigration Judge in Newark, New Jersey. Judge Roy has been in private practice for nearly five years, and two years ago she opened her own immigration law firm. She also currently serves as the New Jersey Chapter Liaison to the Executive Office for Immigration Review for AILA and the Vice Chair of the Immigration Law Section of the New Jersey State Bar Association. In 2016, Judge Roy was awarded the Outstanding Pro Bono Attorney of the Year by the New Jersey Chapter of the Federal Bar Association.

The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, Virginia. He previously served

App. 6

as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. Judge Schmidt authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995), which extended asylum protection to victims of female genital mutilation. He served in various positions with the former Immigration Naturalization Service, including Acting General Counsel (1986-1987, 1979-1981) and Deputy General Counsel (1978-1987). He also worked as the managing partner of the Washington, D.C. office of Fragomen, DelRey & Bernsen from 1993 to 1995. Judge Schmidt practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992 and was a partner at the firm from 1990 to 1992. Judge Schmidt served as an adjunct professor of law at George Mason University School of Law in 1989 and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges and presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, a nonprofit that provides direct legal services to immigrant communities in Washington, D.C. and Maryland. Judge Schmidt assists the National Immigrant Justice

App. 7

Center/Heartland Alliance on various projects, as well as writes and lectures on immigration law topics at various forums throughout the country. Judge Schmidt created immigrationcourtside.com, an immigration law blog.

The Honorable Gustavo D. Villageliu served as a Board of Immigration Appeals Member from July 1995 to April 2003. He then served as Senior Associate General Counsel for the Executive Office for Immigration Review and helped manage FOIA, Privacy, and Security as EOIR Records Manager until he retired in 2011. Before becoming aBoard Member, Villageliu was an Immigration Judge in Miami and oversaw both detained and non-detained dockets, as well as the Florida Northern Region Institutional Criminal Alien Hearing Docket from 1990 to 1995. Mr. Villageliu was a member of the Iowa, Florida, and District of Columbia Bars. He graduated from the University of Iowa College of Law in 1977. After working as a Johnson County Attorney prosecutor intern in Iowa City, he joined the Board of Immigration Appeals as a staff attorney in January 1978 and specialized in war criminal, investor, and criminal alien cases.

App. 8

The Honorable Polly Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in facilities in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando. Previously, Judge Webber practiced immigration law from 1980 to 1995 in her own private practice in San Jose. She was a national officer in AILA from 1985 to 1991 and served as National President of AILA from 1989 to 1990. Judge Webber also taught immigration and nationality law at both Santa Clara University School of Law and Lincoln Law School.

The Honorable Robert D. Weisel served as an Immigration Judge in the New York Immigration Court from 1989 until his retirement at the end of 2016. Judge Weisel was an Assistant Chief Immigration Judge, supervising court operations both in New York City and New Jersey. He was also in charge of the nationwide Immigration Court mentoring program for both Immigration Judges and Judicial Law Clerks. During his tenure as Assistant Chief Immigration Judge, the New York court initiated the first assigned counsel system within the Immigration Court’s nationwide Institutional Hearing Program.

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A warm welcome to our good friend and colleague Judge (and former Assistant Chief Immigration Judge) of the U.S. Immigration Court in New York, NY!

Due Process Forever!

PWS

05-25-18

WITH HELP FROM GIBSON DUNN, “GANG OF 16” RETIRED US IMMIGRATION JUDGES FILES AMICUS BRIEF OPPOSING AG’S INTERFERENCE IN MATTER OF A-B-

HERE’S THE BRIEF:

AB-Brief Amici Curiae of Sixteen Former Immigration Judges and Members of t…

HERE’S THE “STATEMENT OF INTEREST:”

Amici Curiae are sixteen former immigration judges and members of the Board of Immigration Appeals (“Board”). Out of respect for the law to which they have dedicated their careers, Amici feel compelled to file this brief in support of Respondent. Amici are deeply concerned about the procedural violations in this case—in particular the Attorney General’s certification of a question that was not properly considered by the Immigration Judge and was not considered at all by the Board. This complete disregard for established procedure is alarming. It plainly violates binding federal regulations governing the narrow circumstances under which Attorney General certification is permitted and it raises serious due process concerns.

Ultimately, it is within Congress’s authority—not the Attorney General’s—to define the boundaries of asylum. And Congress has already determined that a person can qualify for asylum based on persecution that independently might constitute private criminal activity.

Amici urge the Office of the Attorney General not to take any further action on a question that is not properly before it, and therefore urge that the referral order be vacated.

HERE’S THE TOC:

TABLE OF CONTENTS

Page INTRODUCTION ………………………………………………………………………………………………………….. 1 STATEMENT OF INTEREST OF AMICI CURIAE………………………………………………………….. 1 BACKGROUND ……………………………………………………………………………………………………………. 6 ARGUMENT …………………………………………………………………………………………………………………. 8

This case is not properly before the Attorney General ……………………………………. 8

Federal regulations require that the Immigration Judge issue a
decision on asylum before certifying a case to the Board. ……………………. 9

The Attorney General may only review a Board decision, but there
was none………………………………………………………………………………………. 12

Bypassing the Board nullifies critical procedural safeguards…………………………. 13

The Board, a neutral and independent body, with deep knowledge
of its own precedent, should consider the effect of new case law on
that precedent in the first instance. ………………………………………………….. 13

Bypassing the Board raises serious due process concerns…………………… 14

The Attorney General cannot override Congress’s judgment under the
guise of a procedural mechanism……………………………………………………………….. 16

“Persecution” can be carried out or threatened by private actors that the government cannot or will not control………………………………………………………… 19

CONCLUSION…………………………………………………………………………………………………………….. 21

HERE’S THE “GANG OF 16”

 The Honorable Steven Abrams served as an Immigration Judge at the New York, VarickStreet, and Queens Wackenhut Immigration Courts in New York City. Prior to his appointment to the bench, he worked as a Special U.S. Attorney in the Eastern District of New York, and before that as District Counsel, Special Counsel for criminal litigation, and general attorney for the former Immigration and Naturalization Service (“INS”).

 The Honorable Sarah M. Burr served as an Immigration Judge in New York starting in 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills, and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full time until her retirement in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit.

 The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He now works in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. He received the American Immigration Lawyers Association’s (“AILA”) annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

 The Honorable George T. Chew served as an Immigration Judge in New York from 1995 to 2017. Previously, he served as a trial attorney at the former INS.

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 The Honorable Bruce J. Einhorn served as an Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law, and is a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford.

 The Honorable Cecelia M. Espenoza served as a Member of the Board from 2000 to 2003 and in the Executive Office for Immigration Review (“EOIR”) Office of the General Counsel from 2003 to 2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer, and Senior FOIA Counsel. She now works in private practice as an independent consultant on immigration law. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997–2000) and the University of Denver College of Law (1990–97), where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on immigration law. She received the Outstanding Service Award from the Colorado Chapter of AILA in 1997.

 The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and as an attorney advisor to the Board from 2013 until her retirement in 2016. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.

 The Honorable John F. Gossart, Jr. served as an Immigration Judge from 1982 until his retirement in 2013. He is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. From 1975 to 1982, he served in various positions with the former INS, including as a general attorney, naturalization attorney, trial attorney, and deputy assistant

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commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration-court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor at the University of Maryland School of Law, also teaching immigration law. He is also a past board member of the Immigration Law Section of the Federal Bar Association.

 The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary member of the Board for six months between 2010 and 2011. She previously worked in private practice for ten years, focusing on immigration law. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King currently works as an advisor on removal proceedings.

 The Honorable Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench this January after twenty-seven years. Before her time on the bench, she worked in several roles, including as a consultant to various nonprofit organizations on immigration matters (including Catholic Charities and Volunteers of Legal Services) and as a staff attorney for the Legal Aid Society, Immigration Unit, in New York.

 The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to

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2004. She is the founder of IDEAS Consulting and Coaching, LLC, a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.

 The Honorable Susan Roy started her legal career as a Staff Attorney at the Board, a position she received through the Attorney General Honors Program. She served as an Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. She has been in private practice for nearly five years, and two years ago, opened her own immigration law firm. She is the New Jersey AILA Chapter Liaison to EOIR and is the Vice Chair of the Immigration Law Section of the New Jersey State Bar Association.

 The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, VA. He previously served as Chairman of the Board from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995), extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1979 to 1981 and 1986 to 1987. He was the managing partner of the Washington, DC office of Fragomen, DelRey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, DC office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also consults, speaks, writes, and lectures at various forums throughout the country on immigration law topics.

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 The Honorable William Van Wyke served as an Immigration Judge from 1995 until 2015 in New York City and York, PA.

 The Honorable Gustavo D. Villageliu served as a Member of the Board from July 1995 to April 2003. He then served as Senior Associate General Counsel for the EOIR until he retired in 2011. Before becoming a Board Member, Villageliu was an Immigration Judge in Miami, with both detained and non-detained dockets, as well as the Florida Northern Region Institutional Criminal Alien Hearing Docket from 1990 to 1995. Mr. Villageliu joined the Board as a staff attorney in January 1978, specializing in war criminal, investor, and criminal alien cases.

 The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details to the Tacoma, Port Isabel (TX), Boise, Houston, Atlanta, Philadelphia, and Orlando immigration courts. Previously, she practiced immigration law from 1980 to 1995 in her own firm in San Jose, California. She served as National President of AILA from 1989 to 1990 and was a national AILA officer from 1985 to 1991. She also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in the immigration law field.

HERE ARE THE ATTORNEYS AT GIBSON DUNN WHO MADE THIS HAPPEN:

Amer S. Ahmed

Ronald Kirk

Megan B. Kiernan

Lalitha D. Madduri

Chelsea G. Glover

Counsel for Amici Curiae

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

Thanks to all for making this happen. Great teamwork in the name of Due Process!

Special thanks to our colleague Judge Lory Diana Rosenberg who served as our “Group Leader” in working with Gibson Dunn and to Judge Jeffrey Chase for assembling the group and putting the “finishing touches” on the filing.

PWS

04-27-18

RETIRED US IMMIGRATION JUDGES FILE AMICUS BRIEF IN SUPPORT OF MINOR RESPONDENT’S RIGHT TO COUNSEL IN 9TH CIRCUIT EN BANC REQUEST – C.J.L.G. v. Sessions, 9th Cir., Filed March 15, 2018 – Read It Here!

FIRST, AND FOREMOST, A BIG THANKS TO THE “REAL HEROES” AT SIMPSON THACHER & BARTLETT LLP, SAN FRANCISCO, AND THEIR OUTSTANDING SUPPORT TEAM, WHO DID ALL THE “HEAVY LIFTING:”

Harrison J. (Buzz) Frahn, Partner

Lee Brand, Associate

HERE’S THE TABLE OF CONTENTS:

TABLE OF CONTENTS Page

IDENTITY AND INTEREST OF AMICI CURIAE ………………………………………….. 1 SUMMARY OF ARGUMENT ……………………………………………………………………… 3 ARGUMENT ………………………………………………………………………………………………. 4

I. Immigration Judges Cannot Independently Develop a Child’s Case to Permit the Fair Adjudication that Due Process Requires ……………………………………..

4 A. Immigration Judges Are Overwhelmed ………………………………………… 5

B. DOJ Policy Mandates Efficiency and Skepticism ………………………….. 7

C. Immigration Law Is Exceedingly Complex …………………………………… 9

D. Counsel Dramatically Improve Outcomes …………………………………… 12

II. The Panel Vastly Overstates the Value of Existing Procedures for Unrepresented Minors ……………………………………………………………………….. 13

A. The Duty to Develop the Record Does Not Obviate the Need for Counsel …………………………………………………………………………………… 13

B. A Parent Does Not Obviate the Need for Counsel ………………………… 17

C. A Pro Bono List Does Not Obviate the Need for Counsel …………….. 18

CONCLUSION ………………………………………………………………………………………….. 19

HERE’S THE “CAST OF CHARACTERS” & THE SUMMARY OF ARGUMENT:

IDENTITY AND INTEREST OF AMICI CURIAE

Amici curiae are former Immigration Judges (IJs) who collectively have over 175 years’ experience adjudicating immigration cases, including thousands of cases involving children. A complete list of amici is as follows:

Sarah M. Burr served as an IJ in New York from 1994 to 2012 and as Assistant Chief Immigration Judge for New York from 2006 to 2011. She currently serves on the board of Immigrant Justice Corps.

Jeffrey S. Chase served as an IJ in New York from 1995 to 2007 and as an advisor at the Board of Immigration Appeals (BIA) from 2007 to 2017. Previously, he chaired the Asylum Reform Task Force of the American Immigration Lawyers Association (AILA) and received AILA’s pro bono award.

George T. Chew served as an IJ in New York from 1995 to 2017. Previously, he served as a trial attorney at the INS.

Cecelia M. Espenoza served as a member of the BIA from 2000 to 2003 and as Senior Associate General Counsel at the Executive Office for Immigration Review (EOIR) from 2003 to 2017.

Noel Ferris served as an IJ in New York from 1994 to 2013 and as an advisor at the BIA from 2013 to 2016. Previously, she led the Immigration Unit of the U.S. Attorney’s Office for the Southern District of New York. 2

John F. Gossart, Jr. served as an IJ from 1982 to 2013. Previously, he served in various positions at the INS. Judge Gossart served as president of the National Association of Immigration Judges, co-authored the National Immigration Court Practice Manual, and received the Attorney General Medal.

Eliza Klein served as an IJ in Miami, Boston, and Chicago from 1994 to 2015.

Lory D. Rosenberg served as a member of the BIA from 1995 to 2002. Previously, she served on the board of AILA and received multiple AILA awards. Judge Rosenberg co-authored the treatise Immigration Law and Crimes.

Susan G. Roy served as an IJ in Newark. Previously, she served as a Staff Attorney at the BIA and in various positions at the INS and its successor Immigration and Customs Enforcement.

Paul W. Schmidt served as chair of the BIA from 1995 to 2001, as a member of the BIA from 2001 to 2003, and as an IJ in Arlington from 2003 to 2016. Previously, he served as acting General Counsel and Deputy General Counsel at the INS.

Polly A. Webber served as an IJ in San Francisco from 1995 to 2016, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando. Previously, she served a term as National President of AILA. 3

Amici have dedicated their careers to improving the fairness of the immigration system, particularly in the administration of justice to children. In amici’s personal judicial experience, children are incapable of meaningfully representing themselves in this nation’s labyrinthine immigration system. Absent legal representation, IJs cannot independently develop a child’s case to permit the fair adjudication that due process requires. Accordingly, amici have a profound interest in the resolution of this case.1

SUMMARY OF ARGUMENT

Respectfully, the Panel erred in determining that IJs can and will ensure the due process rights of pro se children without the aid of counsel. This error is painfully clear from the vantage point of IJs, who face overburdened and ever-growing dockets, the complexity of immigration law, and, as Department of Justice (DOJ) employees, the constraints of administrative policy. As such, and as demonstrated by the impact of counsel on a child’s likelihood of success in immigration court, IJs lack the necessary time, resources, and power to ensure that unrepresented minors receive meaningful adjudication of their eligibility to remain in this country. 1 No party’s counsel authored this brief in whole or in part; no party, party’s counsel, nor anyone other than amici or their counsel contributed money that was intended to fund preparing or submitting this brief. All parties have consented to the filing of this brief. 4

The Panel further erred in vastly overstating the value to pro se children of certain extant procedural safeguards. While the Panel correctly identifies an IJ’s duty to develop the record, it fails to understand the practical and procedural limits of this duty in the context of an adversarial proceeding, and wrongly transforms it into a cure-all for the otherwise overwhelming lack of due process an unrepresented minor would receive. The Panel similarly holds up the hypothetical availability of pro bono counsel as a potential due process panacea, and Judge Owens’s concurrence suggests the same of the presence of a parent. But these factors also fall far short of remedying the basic unfairness of forcing children to represent themselves in immigration court.

If the Panel’s decision is not revisited, thousands of minors will be forced to navigate the complex immigration system without representation. In many instances, these children will be returned to life-threatening circumstances despite their eligibility to legally remain in this country. It is hard to imagine a question of more exceptional importance.

HERE’S A LINK TO THE COMPLETE BRIEF FOR YOUR ENTERTAINMENT, EDUCATION, AND READING ENJOYMENT:

2018.03.15 CJLG Amicus Brief of IJs

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A special “shout out” of appreciation to my 10 wonderful colleagues who joined in this critically important effort. It’s an honor to work with you and to be a part of this group.

DUE PROCESS FOREVER!

PWS

03-20-18

Rekha writes on LinkedIn:

Here’s the Memorandum from EOIR Director David L. Neal:

Here’s the recent UCLA Center for Immigraton Law & Policy report on EOIR’s systemic failure to provide due process for children in Immigration Court:

Here’s a link to the “Sharma-Crawford, Rosenberg, Roy, Schmidt article” on “Best Interests of The Child in Immigration Court:”

Here’s my take:

🇺🇸 Due Process Forever!

Related posts:

Marching orders, not friendly advice

Immigration court backlog hits all-time high, days before Sessions speech to immigration judges

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Harrison J. (Buzz) Frahn, Partner

Lee Brand, Associate

HERE’S THE TABLE OF CONTENTS:

HERE’S THE “CAST OF CHARACTERS” & THE SUMMARY OF ARGUMENT:

HERE’S A LINK TO THE COMPLETE BRIEF FOR YOUR ENTERTAINMENT, EDUCATION, AND READING ENJOYMENT:

DUE PROCESS FOREVER!

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