"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
That’s something for human rights activists and progressives to remember when some of these same spineless folks pelt your inbox with requests for your hard-earned dollars and your vote to help them save democracy — a democracy that they and their GOP nativist buddies don’t really believe in or defend!
Another example of truth losing out: Despite irrefutable evidence to the contrary, a substantial majority of GOP voters believe Trump’s “stolen election” lies. https://www.poynter.org/fact-checking/2022/70-percent-republicans-falsely-believe-stolen-election-trump/. And, whether or not they actually believe Trump’s falsehoods, almost no GOP office-holders, at any level, have the guts to challenge his absurdist claims.
YOU can be on the team with these and other NDPA superheroes:
Paula Fitzgerald Executive Director AYUDALaura Trask Director of Development & Communications AYUDA
📣 Job alert! 📣 Ayuda is seeking an immigrant champion to become our next Director of Legal Programs and lead the continued expansion of our immigration legal services.
If you share our mission of creating a world in which immigrants thrive, take a look at the full job posting and apply now: https://lnkd.in/e_yypNsk
Ayuda is a 501 (c)(3) nonprofit organization dedicated to providing direct legal, social and language access services, education, and outreach to low-income immigrants in the Washington, DC metropolitan area. Since 1973, Ayuda has provided critical services on a wide range of issues, in the process acquiring nationally recognized expertise in several fields including immigration law, language access, domestic violence and human trafficking. Ayuda has office locations in Washington, DC, Silver Spring, MD and Fairfax, VA.
WHY DO YOU WANT THIS JOB?
Because, just like everyone at Ayuda, you believe:
• In seeing communities where all immigrants succeed and thrive in the United States.
• In the overall success of our organization and all our programs.
• That families should be healthy and safe from harm.
• That all people should have access to professional, honest, and ethical services, regardless of ability to pay or status in this country.
• That diversity and equality make this country better.
WHAT WILL THIS JOB ENTAIL?
• Ensure the delivery of client-centered, high-quality legal services across Ayuda’s offices in DC, Maryland, and Virginia.
• Provide supervision to Legal Managers, and other positions as needed.
• Provide strategic direction for the legal program within Ayuda and lead the team towards meeting goals and objectives.
• Maintain and develop consistent practices and policies across legal programs.
• Oversee financial management of grants for the legal program, including client trust accounts for the low-bono fee-based services.
• Manage legal program budget, including overseeing the overall annual budget as well as providing support and oversight to Managing Attorneys on individual legal grant budgets (preparation, revisions, etc).
• Provide oversight to managers and support to Grants and Finance staff for grant management, including grant reporting and grant applications.
• Manage Ayuda’s delivery of low-bono fee-based immigration legal services.
• Collaborate with Ayuda’s Social Services and Language Access programs to ensure the provision of holistic services.
• Represent Ayuda in meetings with prospective grantors and donors to support Ayuda’ s fundraising efforts.
• Stay informed about legal changes and help to communicate legal changes and their significance to staff.
• Support Communications & Development team by drafting external legal updates and supporting participation in media interviews by legal team.
• Represent Ayuda and its clients at local and regional stakeholder, coalition, and advocacy meetings.
• Participate in Ayuda’s efforts to bring about systemic change on behalf of our clients.
• Represent the legal program as a member of Ayuda’s Senior Management Team, supporting organizational management and strategic planning and implementation.
HOW DO YOU KNOW IF YOU CAN DO THIS JOB?
Eligibility: Must be legally able to work in the United States and maintain proper work authorization throughout employment. Must be able to meet the physical requirements of the position presented in a general office environment.
Education/Experience:
• J.D. or L.L.M. degree from an accredited law school and licensed and in good standing to practice law in any U.S. state or territory.
• 3+ years of experience providing legal services to low-income immigrants (immigration, domestic violence/family law and/or consumer law experience preferred but not required).
• 3+ years of supervisory experience.
• Program management and leadership experience required.
• Experience working with low-income immigrant survivors of domestic violence, sexual assault, human trafficking, child abuse/neglect or other forms of trauma.
Preferred Knowledge & Skills:
• Excellent written and verbal communications skills, flexibility, and good humor.
• Excellent judgment, calm demeanor even under pressure, strong work ethic, resourceful, and able to maintain confidentiality.
• Decisive, with ability to exercise independent judgment.
• Proven ability to develop and maintain and positive team environment and support staff morale and resilience.
• Ability to mentor, train and provide career path guidance to staff.
• Ability to work collaboratively in a team environment and to initiate and follow through on work independently.
• Excellent time management skills and ability to work in a fast-paced environment.
• Ability to adapt to changing priorities.
• Program evaluation and project management skills.
• Knowledge of a second language a plus, with Spanish language skills preferred (examples of other languages commonly spoken by Ayuda’s clients include Amharic, Arabic, Tagalog, French, and Portuguese).
SALARY AND BENEFITS:
The anticipated salary for this position is $125,000 – $140,000, depending on experience.
We are proud of the benefits we can offer that include:
• Platinum-level medical insurance plan 100% employer-paid.
• Pre-tax 401(k) with Employer match on first 3% of salary.
• Vacation Days: 21 days per year until year 3, 27 per year in years 3-7 and 33 days per year after 7 years employment. Employees begin with 3 days of vacation leave.
• New employees begin with 5 days of Health & Wellness (sick) leave and accrue an additional 5 hours per pay period plus emergency medical leave up to 12 weeks per year.
• 12 weeks paid parental leave/family leave.
• 24 days paid holidays and staff wellness days, including Winter Break the last week of the year.
• Job-related professional development fees (including annual state bar dues and professional memberships).
• Flexible work schedules.
This position is exempt for overtime purposes.
Employees with federal student loan debt may be eligible to apply for Public Service Loan Forgiveness through the Department of Education. For more information, go to https://myfedloan.org/borrowers/special-programs/pslf.
TO APPLY:
Please apply with resume and cover letter. Writing samples may be requested.
Applications will be considered on a rolling basis until the position is filled. If you have questions about this position, please reach out to us at HR@ayuda.com.
EQUAL OPPORTUNITY EMPLOYMENT STATEMENT:
Ayuda is an Equal Opportunity Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, or protected veteran status and will not be discriminated against based on disability.
We believe that a diversity of experiences, opinions, and backgrounds is integral to achieving our mission and vision. We celebrate diversity and seek to leverage the passion, energy, and ideas of a culturally diverse team.
This is a spectacular chance to work with really dedicated professionals performing a meaningful mission to help migrants adapt, prosper, and obtain legal status in our DMV area while enriching and assisting our communities. It’s about working together to build a better America for everyone!
As I have mentioned before, I am a proud member of AYUDA’s Advisory Council. At our meeting held at AYUDA this week, I was surrounded by talented, dedicated folks, who, unlike the often biased and ill-informed politicos out to destroy our legal immigration framework, are committed to solving problems in a humane, creative, legal manner recognizing the humanity and talents of our migrant communities.
Among other things, I heard:
Busses continue to arrive in our area without warning and coordination from either the “sending states” or the Feds;
The overwhelming number of those arriving are forced migrants with strong asylum claims;
Many of the current arrivals are from Venezuela and Nicaragua, countries with repressive leftist dictatorships with established records of persecution and human rights abuses recognized and condemned by Administrations of both parties;
Many arrivals, because of language problems and haphazard Government processing, do not understand how the asylum system operates;
Through information sessions, AYUDA and other NGOs are filling an information gap left by poor Government performance;
Despite the monumental efforts of terrific pro bono lawyers from across the DMV area (more needed) there is neither rhyme nor reason to the handling of these cases at EOIR and the Asylum Office;
Some cases are expedited, some are placed on slow dockets;
There are no BIA precedents or useful guidance on the many recurring situations that should result in grants;
Different results on similar material facts are a continuing problem;
Delays and “Aimless Docket Reshuffling” by EOIR hinders pro bono representation.
These are the problems that Congress and the Administration could and should be solving! Instead, outrageously, they are focused on spreading dehumanizing myths and devising even more wasteful “enforcement only” gimmicks that are bound to fail and leave more devastation, trauma, and wasted opportunities in the wake! Human lives and human rights are neither “bargaining chips” nor “political props” in an election year!
Americans are being bombarded by false messages of hate, fear, resentment, and dehumanization directed at out immigrant communities. That’s a HUGE problem for our nation of immigrants’ future! Fight back by joining AYUDA and becoming part of the solution!
AYUDA and other NGOs offer a chance to be part of the solution, save lives, and stand against the disgraceful failure of our Government to honor our legal commitments to asylum seekers and other migrants. Be a champion of migrants who make our “nation of immigrants” really great!
🇺🇸 Due Process Forever!
PWS
01-19-24
⚠️ DISCLAIMER: The views expressed in this promotional recruiting message are mine and do not represent the position of AYUDA or any other entity!
MIAMI (AP) — Eight months after crossing the Rio Grande into the United States, a couple in their 20s sat in an immigration court in Miami with their three young children. Through an interpreter, they asked a judge to give them more time to find an attorney to file for asylum and not be deported back to Honduras, where gangs threatened them.
Judge Christina Martyak agreed to a three-month extension, referred Aarón Rodriguéz and Cindy Baneza to free legal aid provided by the Catholic Archdiocese of Miami in the same courthouse — and their case remains one of the unprecedented 3 million currently pending in immigration courts around the United States.
Fueled by record-breaking increases in migrants who seek asylum after being apprehended for crossing the border illegally, the court backlog has grown by more than 1 million over the last fiscal year and it’s now triple what it was in 2019, according to government data compiled by Syracuse University’s Transactional Records Access Clearinghouse.
Judges, attorneys and migrant advocates worry that’s rendering an already strained system unworkable, as it often takes several years to grant asylum-seekers a new stable life and to deport those with no right to remain in the country.
. . . .
Experts like retired judge Paul Schmidt, who also served as government immigration counsel while the last major reform was enacted nearly forty years ago, say the broken system can only be fixed with major policy changes. An example would be allowing most asylum cases to be solved administratively or through streamlined processes instead of litigated in courts.
“The situation has gotten progressively worse since the Obama administration, when it really started getting out of hand,” said Schmidt, who in 2016, his last year on the bench, was scheduling cases seven years out.
. . . .
******************
At the above link, read Giovanna’s excellent full article, based on interviews with those who actually are involved in trying to make this dysfunctional system function. Thanks, Giovanna, for shedding some light on the real, potentially solvable, “human rights crisis” enveloping and threatening the entire U.S. legal system. Contrary to “popular blather,” fulfilling our legal obligations to refugees is not primarily a “law enforcement” issue and won’t be solved by more border militarization and violations of individual rights of asylum seekers and other migrants!
There are lots of ways to start fixing this system!Gosh knows, most of them have been covered here on Courtside, sometimes several times, and they are all publicly available on the internet with just a few clicks. See, e.g.,
The “debate” on the Hill defines “legislative malpractice!” The voices of legal integrity, experience, and practicality aren’t being heard! Also, lots of great ideas from experts on fixing EOIR are stuffed in the “Biden Transition Team” files squirreled away in some basement cubbyhole at Garland’s DOJ.
But most politicos aren’t interested in listening to the experts, nor do they seem motivated to understand the real human problems at the border, in the broken Immigration Courts, and how many of the things they are considering will make the situation worse while empowering smugglers and cartels! Those are real human corpses piling up along the border, carried out of immigration prisons, being abused in Mexico, and floating in the river — mostly due to the brain-dead “enforcement only” policies now being given an overdose of steroids by congressional negotiators.
So, things just keep deteriorating. Many in the backlog who deserve a chance at a permanent place in our society, and the ability to contribute to their full abilities and potential, remain in limbo! That’s bad for them and for us as a society!
We all have heard the story about the Rev. Martin Luther King Jr. the night before he was killed. How he’d seen the promised land and might not be with us when we got to the mountaintop. It’s important that we remember King incorporated the good Samaritan story into his speech.
He was in Memphis to aid sanitation workers, who were marching for a livable wage and safe working conditions. He went despite threats to his life and the fact that other civil rights leaders were present to march along with 1,300 Black workers on strike. He went because if not him, who? Here’s where he incorporated a Bible story we’ve heard before.
“And so the first question that the Levite asked was, ‘If I stop to help this man, what will happen to me?’ But then the good Samaritan came by. And he reversed the question: ‘If I do not stop to help this man, what will happen to him?’
“That’s the question before you tonight. Not, ‘If I stop to help the sanitation workers, what will happen to all of the hours that I usually spend in my office every day and every week as a pastor?’ The question is not, ‘If I stop to help this man in need, what will happen to me?’ ‘If I do not stop to help the sanitation workers, what will happen to them?’ That’s the question.”
King ended his speech by emphasizing the work we all need to do together to make this nation great, working toward justice not just for ourselves but for all those along the road we come across who require it.
“Let us rise up tonight with a greater readiness. Let us stand with a greater determination. And let us move on in these powerful days, these days of challenge to make America what it ought to be. We have an opportunity to make America a better nation. And I want to thank God, once more, for allowing me to be here with you.”
This is what I want to remember and honor this Martin Luther King Jr. Day.
Jill McKibben, Reston
*********************
Compare this message of self-sacrificing kindness toward fellow humans with the GOP “race to the bottom” taking place today during the totally overhyped and over-covered Iowa caucuses! (One more breathless account of the “enthusiasm gap” among Haley voters — not to mention her double-digit deficit in the endless “up to the minute” polls — could make a person want to puke.🤮)
There, dominant front-runner Trump promises not a better, fairer, more humane America for all, but rather a selfish, grievance-filled, program of hate, revenge, retribution, dehumanization, and exclusion on his “enemies!” And, his floundering GOP “rivals” promise the same nasty, deeply anti-American, agenda, but without the “distraction” of Trump’s “personality.” Hardly a winning message! If Iowa GOP voters want a true bottom-dweller, and it appears they overwhelmingly do, why not go with the “original” rather than “semi-sanitized imitations?”
Thank goodness for NFL playoff games today which should allow the rest of us to avoid the networks insipid “Iowa coverage!”
Mary Meg McCarthy Executive Director National Immigrant Justice Center PHOTO: LinkedinA girl peers out from an encampment at the U.S.-Mexico border where she and several hundred people waited to present themselves to U.S. immigration to seek asylum. Politicos of both parties disgracefully treat the lives of asylum seekers as “collateral damage” and apparently expect no consequences from their deadly, inhumane, and often illegal actions against legal asylum seekers! / Photo by David Maung
Elected officials must act to prevent more migrant deaths
The United States has the resources to welcome new neighbors, but it is going to take cooperation, from the White House to the mayor’s office, to prevent further loss of life and improve safety for migrants.
By Letters to the Editor Dec 21, 2023, 3:32pm CST
It was heartbreaking to learn of the death of 5-year-old Jean Carlos Martinez Rivero, who had been living with his family at a privately contracted Chicago migrant shelter. This tragedy must be a wakeup call for all levels of government to start working together to protect people’s basic human rights at a time of increasing global humanitarian displacement.
For months, community members raised concerns about conditions inside the city’s shelters and volunteered to help better meet migrants’ basic needs. The accounts of life inside the shelter now coming to light are disturbingly similar to those that my colleagues at the National Immigrant Justice Center hear from clients held in immigration detention centers.
The city and the companies profiting from shelter contracts must be held accountable.
No doubt, the city has been forced to face the unprecedented challenge of welcoming thousands of new neighbors with minimal support from the federal government. The Biden administration and Congress must also be held accountable to repair the broken immigration system, support cities like Chicago that are welcoming migrants, and provide legal pathways so new arrivals have access to employment, secure housing and safety.
Jean Carlos’ death occurred at the same time the Biden administration and some U.S. senators are considering signing off on extreme anti-immigrant legislation in exchange for military aid for Ukraine and Israel.
The proposals under negotiation would create permanent new barriers to asylum protection and put U.S. immigrant communities at heightened risk of mass deportations. The proposals are structured to put Black, Brown and Indigenous communities at most risk.
Biden seems to have lost sight of his prior promises to defend immigrants’ rights, not to mention the U.S. government’s obligations to uphold international human rights law. Chicagoans should be holding our own Sens. Dick Durbin and Tammy Duckworth accountable to loudly oppose these proposals.
The United States has the resources to welcome new neighbors, but it is going to take cooperation at every level — from the White House to the mayor’s office — to prevent further loss of life and improve access to safety for migrant communities.
Mary Meg McCarthy, executive director, National Immigrant Justice Center
***********************
Unfortunately, accountability seems unlikely unless it happens at the ballot box.The GOP has become the party of inhumanity, irresponsibility, and immunity. And, although the Biden Administration and “wobbly” Dems tend to avoid overtly dehumanizing asylum seekers with their language, their actions and attitudes too often mirror those of Trump, Miller, and the GOP nativists. Indeed, quite disgustingly, politicos of both parties appear to expect to harvest political gains from the blood of migrants! 🤮
The Senate is basically engaging in “bipartisan” negations to knowingly and intentionally violate domestic and international protection laws, abrogate constitutional due process, and increase the number of unnecessary deaths of asylum seekers. That arrogant politicos, on both sides of the aisle, although primarily the GOP, openly advocate for such actions shows just how little fear of any type of accountability they have.
In many ways, that’s precisely the message that Trump and his MAGAmaniacs have been pushing — intentionally hateful and inflammatory language, followed by horrible, sometimes deadly, actions with little or no fear of any type of accountability.Sadly, the Dems seem to think that a program of cowardly acquiescence, rather than principled opposition, is the key to political success.
On the eve of a U.S. presidential election year and under the shadow of wars in Ukraine and Gaza, asylum seekers and refugees have become chips on the Capitol Hill bargaining table.
What risks being lost in this high-stakes game is a recognition that fundamental human rights are not negotiable, including “the right to seek and to enjoy in other countries asylum from persecution” enshrined in the Universal Declaration of Human Rights.
. . . .
******************
Read the rest of Bill’s article at the link.
Echoes what many of have saying for a long time! The problem is that the politicos of both parties have abandoned due process (except as it applies to them personally or to their cronies) and human rights.
AG Merrick Garland’s methods for treating allies and friends of America when they apply for asylum in his “courts” are highly questionable and demonstratively counterproductive. Did the DC Circuit use “trial by ordeal” during Garland’s tenure? If not, why is it OK for EOIR?
HELPING AN AFGHAN INCARCERATED IN THE UNITED STATES EARN ASYLUM
Mohammad[1] is an Afghan citizen of the Hazara ethnic minority and Shi’a religion, who fled Afghanistan after repeated threats to his life following the Taliban’s consolidation of power in 2021. He escaped by traveling through the treacherous and only available route to the United States to seek asylum.
In Afghanistan, Mohammad was a professor with a history of advocacy for women’s rights and for victims of the Taliban and other extremist groups. Mohammad’s wife, who worked for a U.S. government-funded nonprofit organization in Afghanistan. Due to her work, she has an initially approved Special Immigrant Visa application that also gives Mohammad a path to permanent residence in the United States.
Despite this, Mohammad was criminally prosecuted for entering the United States to seek asylum. He spent 7 months in prison before he was transferred to U.S. Immigration and Customs Enforcement (ICE) custody, where he could only then begin to pursue his asylum claim. ICE repeatedly denied Mohammad’s release into the community despite his having permanent resident family in the United States ready to sponsor and receive him.
Mohammad was forced to undergo his asylum case without an attorney while detained in immigration jail. After being held for one year, an immigration judge denied Mohammad’s asylum claims despite extensive evidence that he survived multiple attacks on his life by the Taliban and ISIS-K, and that the Taliban continue to search for him. The judge also dismissed irrefutable evidence of the significant risk he would face due to his ethnic and religious minority status if forced to return to Afghanistan, and the escalating violence imposed by the Taliban.
Mohammad’s story was detailed by the Associated Press. The article provided “a rare look inside an opaque and overwhelmed immigration court system where hearings are often closed, transcripts are not available to the public and judges are under pressure to move quickly with ample discretion” and highlights Human Rights First’s efforts to find justice for Mohammad.
The United States should not deport Afghan allies—especially not those like Mohammad, who have courageously fought for human rights in Afghanistan, are members of ethnic and religious minority groups, and have family eligible for SIV status—all factors that would lead to certain risk of persecution and torture at the hands of the Taliban if forced to return.
We argued that Mohammad was subjected to unreasonably prolonged incarceration. He deserved to live freely in the United States and be reunited with his family while he sought asylum.
As Human Rights First acted on Mohammad’s case, we updated this blog with details of that effort. Please follow this link for more on Mohammad’s story.
December 22, 2023
Mohammad’s journey has been long – he traveled from Afghanistan to South America, through the Darien Gap to the border, to ICE detention, and more – but it has come to a successful conclusion.
Our attorneys were successful in stopping the Department of Homeland Security from deporting Mohammad back to Afghanistan. We filed a Motion to Reopen Mohammad’s case and then filed a new asylum application. We made multiple parole requests to get Mohammad released. We filed for Temporary Protected Status for Mohammad, arguing that it is the U.S. government’s long-standing policy to release any individual who is prima facie eligible for TPS. We contacted government officials and advocated for Mohammad’s release for his sake and for his family — two small children and his wife, whose application through the Special Immigrant Visa program has long been approved. Our request to have his TPS application expedited was denied.
With our partners at the law firm of Akin LLP, we prepared Mohammad for his December 13 Individual hearing before a new judge in Dallas Immigration Court. We gathered additional evidence, spoke with eyewitnesses, consulted with an expert, and filed all necessary filings.
Finally, on December 20, 2023, 602 days after he first arrived in the United States, Mohammad was granted asylum. The immigration judge found that Mohammad had suffered persecution due to his political opinions and ethnicity.
Mohammad was released from detention on December 22, 2023, and will soon reunite with his niece in Michigan. Human Rights First and Akin LLP will now work to reunite Mohammad with his wife and children and help him to pursue a dignified life in the relative safety of the United States.
December 12, 2023
Mohammad is scheduled for an Individual Hearing on December 13. We are very concerned about the possibility of his facing more detention even though he has an incredibly strong case with multiple claims to asylum.
Mohammad is an ethnic Hazara Shia Muslim who was an outspoken law professor and advocate on behalf of victims of Taliban terrorist attacks. His wife was employed by a U.S.-funded organization, and was granted COM approval for her Special Immigrant Visa. Mohammad’s two brothers converted to Christianity, a crime punishable by death; Mohammad fears retribution by the Taliban due to their close family relationship and because they lived in the same building unit. In recent months, the Taliban have visited their home in Afghanistan multiple times.
We continue to believe and will argue that Mohammad should have never been detained in the first place.
December 2, 2023
On December 1, USCIS denied Human Rights First’s request to expedite Mohammad’s application for Temporary Protected Status (TPS). At the time of our request, Mohammad had been in detention for over 550 days.
We argued for expedited processing of his TPS application based on urgent humanitarian reasons — he survived an ISIS-K bombing and an attempted gunpoint abduction by the Taliban — and the national interest of the United States.
We anticipated that the filing of Mohammad’s TPS application would be sufficient for DHS to release him, as he clearly meets the prima facie eligibility requirement. It is a long-standing U.S. government policy that “once granted TPS, an individual cannot be detained by DHS based on their immigration status in the United States.”
Unfortunately, our parole requests have repeatedly been denied, even after the submission of proof of TPS filing and of Mohammad’s wife’s COM approval for her Special Immigrant Visa (SIV).
September 25, 2023
Following the immigration judge’s erroneous denial of Mohammad’s asylum claim, he was connected with a pro bono attorney at Human Rights First to timely appeal that decision. Although ICE argued that Mohammad waived his right to appeal during the final immigration court hearing, experts, including former immigration judges, have reviewed the court transcript and agree with Human Rights First that Mohammad did not receive a fair hearing or knowingly waive his right to appeal. Unfortunately, the Board of Immigration Appeals summarily dismissed Mohammad’s appeal due to that purported waiver.
Human Rights First then filed a motion to reopen his removal proceedings directly with the Immigration Court. With the assistance of Akin Gump LLP, Mohammad also filed a petition for review of the BIA’s decision.[2]
On September 21, Mohammad’s motion to reopen before the immigration court was granted, despite the government’s continued opposition, winning him the opportunity to present his evidence for asylum again but this time with the assistance of an attorney and a new judge. That same day, the Department of Homeland Security (DHS) announced that the Secretary has redesignated Afghanistan for Temporary Protected Status, which will provide an additional path to temporary protection from deportation for Mohammad. Human Rights First will continue to defend Mohammad’s case until he secures protection for himself and his family.
[1] full name withheld due to security concerns for his family
[2] this petition will be voluntarily dismissed as Mohammad’s motion to reopen removal proceedings was separately granted by an immigration judge
And, “bingo,” Garland and his inept minions at EOIR and DOJ furnish a great example of a backlog-building, due-process denying, expertise-lacking, dysfunctional, illogical“court” system that is damaging humanity while undermining U.S. justice and democracy in so many ways!
The full scope of USG failure is on display in this saga:
Prosecutorial abuse;
Coercive detention;
Denial of counsel;
Bad judging at both trial and appellate levels of EOIR;
Lack of asylum expertise;
Absence of positive precedents granting asylum in recurring situations like Afghanistan;
Mistreating those we eventually will be welcoming and relying upon in our society;
Generating unnecessary litigation;
Promoting arbitrary and inconsistent results.
The HRF report also notes the supportive role of former Immigration Judges in obtaining justice for Mohammad.
As renowned asylum expert Eleanor Acer, Refugee Protection Director at HRF, said of this case on X:
So relieved that he was finally granted asylum, but I continue to be appalled that people seeking asylum in the US often face so many obstacles & injustices.Senators & Biden officials should focus on staffing & steps for accurate & just decisions, not more barriers & cruelty.
Yup! Our leaders “just don’t get it” when it comes to human rights, immigration, and the reality of forced migration. The costs to humanity of their failures is incalculable!
Institutionalizing “accurate and just decisions” is something that has largely eluded Garland — despite his long service as an Article III Judge and his near-elevation to the Supremes. Many of us, obviously incorrectly, believed that with his judicial background and reputation — and few other real priorities on his plate given his recusal from the Trump prosecutions — Garland would be the AG who would finally fix EOIR and push the transition to Article I status. Instead, he has allowed EOIR to drift and deteriorate on his watch, with destruction of human lives and the undermining of justice in America as consequences!
All the punitive measures Congress is discussing will make things worse! The legislators and the politicos “running” this dysfunction are completely detatched from reality! (Reportedly, Secretary Blinken and other Administration politicos are now in Mexico looking for more “ guaranteed to to fail yet cause more human misery” ways to “enforce their way” out of a humanitarian crisis that is not at core a law enforcement problem at all!)
EOIR and the BIA require senior leaders who are practical experts in asylum law, who put due process and fundamental fairness first, and who are proven problem solvers — not part of the problem as is now the case. Unless and until we get an AG and senior DOJ leaders who recognize both the problems and the (now unrealized) opportunities at EOIR, American justice and democracy will continue to suffer! And human lives will continue to hang in the balance!
Description Immigrants & Refugees Welcome – Banner on Facade – Pilsen – Chicago – Illinois – USA Date Taken on 18 February 2017, 10:55 Source Immigrants & Refugees Welcome – Banner on Facade – Pilsen – Chicago – Illinois – USA Author Adam Jones from Kelowna, BC, Canada Creative Commons License
Migrants are cut from the same cloth as the rest of us
One of the words I have not heard to describe migrants — but is a more accurate than the negative portrayals — is “families.”
By Letters to the Editor Nov 30, 2023, 5:11pm EST
With the holidays upon us, there will undoubtedly be plenty of work parties, shopping sprees with kids in tow and the ubiquitous family gatherings. The coming months will also challenge us to wear layers of clothes and wrap ourselves and our loved ones in blanket-like coats. I am fortunate to have plenty of gloves, scarves, coats and boots.
Others are less fortunate. The unfortunate ones include the “new arrivals,” most of whom have never experienced a Chicago winter. Since the migrants’ arrival, critics have taken to the airwaves offering their comments about the tents, buses, use of police stations, encroachment on city streets, and, what they believe is the destruction of the city’s social and economic fabric. Descriptions of migrants are also disconcerting: liars, troublemakers, thieves, wayward parents using their kids to manipulate the immigration system and outsiders trying to live off the municipal dough.
One of the words I have not heard but is a more accurate depiction of the new arrivals is families. The buses full of people reflect a multi-generational exit from countries steeped in turmoil and unrest: infants, children, parents, or other caretakers. Describing those who arrive as families could lead us to consider them fully human, more like us. Instead, we use words that create a chasm that places the migrants at an arm’s distance from us, society and our city.
Throughout the next month, love, joy, harmony and peace will be words we will likely hear daily in songs, written in holiday cards and celebrated in plays and movies that bring friends and families together. Some will celebrate the season by remembering the birth of a unique child. Warned to flee to ensure the safety of his wife and newborn child, the family patriarch left for other lands. Wouldn’t it be remarkable if we could see the face of this child in the faces of the children we see coming here? Perhaps we can take the first step by using words that remove the stigma and distance between us and the “new arrivals.” The words? Families, of course.
Esther Nieves, Wicker Park
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Yup, contrary to the absolute, hateful, BS from Trump, Johnson, and the rest of the MAGA right, and the disgraceful indifference of too many Dems, most migrants want: 1) security, 2) opportunity, and 3) a better future, particularly for family. That’s what I found over more than 13 years on the trial bench at the Immigration Court. Basically, what all of us want from life!
Migrants deserve fair, humane, dignified treatment from the U.S. and our legal system, regardless of whether they ultimately are able to meet the legal criteria to remain!
Families arriving at the border today likely to find those in power parrot the words of Christ while ignoring his teachings about mercy, humility, humanity. IMAGE: SojournersTodd Miller Border Correspondent Border Chronicle PHOTO: Coder Chron
I am at the Stanton Street Bridge between El Paso and Ciudad Juárez, where one year ago I watched groups of people wade through the shallow water to “pedir posada,” the Spanish-language term used for Joseph and Mary asking for refuge in Bethlehem 2,023 years ago. This year, there are no people below me, at least not right now, and the Rio Grande is a greenish, contaminated trickle that will dry up completely just east of El Paso, and then be replenished by the Rio Conchos 200 miles downriver in Presidio, Texas. On the other side of the bridge, you can see that the holiday season is in full gear as the line of people entering the United States coming from Ciudad Juárez extends up to the top of the bridge, exactly above the river. Surrounding the river are the props of the modern-day nativity scene: coiling razor wire, 30-foot walls, Texas Army National Guard troops and their armored jeeps, armed U.S. Border Patrol agents in their green-striped trucks, drone surveillance, camera surveillance, biometric systems. Partially, this is the result of the most money ever put toward federal border and immigration enforcement (as we reported this year, 2023 was $29.8 billion, a record number, which adds to the more than $400 billion since 2003). Partially, this is because Texas’s spending on Operation Lone Star, courtesy of Governor Greg Abbott and his right-wing, un-Christian justification machine, which has added up to $4.5 billion over the last two years. And this has been the response of the United States for people “pidiendo posada” for 30 years since Operation Blockade/Hold the Line began a border-building spree that has not ceased: there is no room at the inn.
I think of that cold night on the ground in a stable that is depicted in so many places this time of year as I walk past shivering refugees in heavy coats sitting outside against the Sagrado Corazón church in El Paso a few blocks from the border. I am reminded of the hundreds upon hundreds of people arriving to the Arizona border, as Melissa reported on earlier this week. I am reminded of the young Guatemalan mother I met myself at the border wall in late November as she tended to her two-month-old under the 30-foot border wall. They had been waiting there for two days. The infant was sick, and the nights were cold. The rest of the group, from the coast of Guatemala, built a fire to keep warm. When were the wise men going to arrive, the kings, the angels? The humanitarians did arrive, as they do, day after day (see Melissa’s reporting on that). I am reminded of being in Bethlehem myself a few years back, visiting the Aida refugee camp of Palestinians, which was surrounded by a tall concrete wall that had an embedded “pill box,” or a tower where snipers could point their assault rifles located mere miles from that stable where Mary gave birth on the cold ground. The Christmas story is playing out all around us, as lawyer and anthropologist Petra Molnar pointed out for us just yesterday. Where Mary, Joseph, and the infant Jesus had to flee Bethlehem when King Herod started to wield authoritarian power, the long trek to Egypt fleeing persecution is happening right now, throughout the world, such as in the Darién Gap in Colombia and Panama, as discussed in Melissa’s two interviews with anthropologist Caitlyn Yates—one podcast in December, one in August. Or the equivalent might be in the Mediterranean, as we discussed with Lauren Markham last June after a ship capsized near Greece, killing 600 people, or the countless places across the world where people struggle with a huge enforcement apparatus, which Anna Lekas Miller wrote about in her book Love Across Borders. We have spent the year doing our best to give you insight into what is happening on our borders.
I love this time of year, December, because things start to slow down, the frenetic pace starts to wane. For me, this becomes a more reflective period. Yet this modern Christmas story is anything but reflective. On television sets, commercials remind us of the holiday spirit (and to buy as much as we can), and movies have heartwarming tales of people coming together. Yet hospitality is scoffed at in words and policy, no matter what president, no matter what political party. Melissa has reported time and time again about the dehumanizing rhetoric; earlier this week, she wrote about a Fox News reporter talking about invaders and invasions and “credible fear thresholds.” This discourse abounds, with stories of people “taking advantage of our asylum system,” and claims that the United States can’t absorb any more people. Did Mary and Joseph hear similar soundbites on their journeys?
In these stories, we rarely hear about U.S. foreign policy, both historical and current. Take, for example, the Monroe Doctrine’s effect in Latin America: the centuries of upholding dictatorships, training generals, arming militaries—and, lately, creating border guards—and influencing politics, as well as the economic domination, in which corporate power and extractive industries enjoy a borderless world and can travel anywhere and take anything they want (see NAFTA, see CAFTA), from precious resources to cheap labor. Meanwhile, regular people—sometimes the very people displaced by corporate power—face harsher and harsher border regimes that extend throughout the continent. The same thing the Greg Abbotts of the world accuse undocumented people of doing here, corporate power is doing there. Studies have continually shown how a migrant labor force bolsters the U.S. economy in myriad, even critical ways (see, for example, the film A Day without a Mexican), yet border crossers get blamed for the big societal problems as if they had the power to set policy in corporate board rooms and in Washington. In the halls of power, debates stagnate over whether people are refugees or economic migrants—creating more divisions between the people most affected by the entrenched borders.
At the height of her pregnancy, Mary and Joseph walked for days, fleeing a Caesar Augustus’s occupying force—a story that resonates with more than 184 million people on the move today. I am reminded of my dear friend Irene Morales, a nun with the Madres of the Eucaristia, who I worked with two decades ago and who told me day after day—as we traveled through northern Mexico and the U.S. borderlands—that she saw Christ in the faces of people on the move. In the early 2000s, thousands of people were arriving to Altar, Sonora, to cross through the Arizona deserts. The people I talked to and interviewed were mostly from southern Mexico, and in many cases they were migrating because they could no longer make ends meet. From about 2002 to 2005, I talked to hundreds of people, and often it was parents thinking about their children, parents who talked about skipping meals for their children, wanting their children to get an education, or sometimes it was children on the move for a sick parent. So often it was a story of sacrifice at a time in a post-9/11 era characterized by a massive ramp-up on the border, with terrorism and migration blurring into each other at a policy level. “El rostro de Cristo,” Irene told me.
Stanton Street Bridge at sunset with a long line of people crossing from Ciudad Juárez to El Paso as is typical during the holidays. (Photo credit: Todd Miller)
As I stand on the bridge in Juárez, where everything seems basically the same, I know a lot has happened over the last year, and we have covered much of it at The Border Chronicle. I, for one, have been following that contaminated river and have gone into Chihuahua to report on border water struggles for a forthcoming book, and I have shared some photo essays here. Melissa also wrote about Chihuahua earlier this year for The New Yorker, focusing on the epidemic of journalists assassinated in Mexico, which she summarized in The Border Chronicle. I feel so fortunate to work alongside Melissa, who not only wrote (and talked to experts) about the innards of this massive border fortification, whether it be the surge of wall building, deadly vehicle chases, Operation Lone Star, or Florida cops patrolling the border—and the right-wing rhetoric that so often propels it (not to mention the Elon Musk circus)—but also about people in border communities for inspiration and solutions such as border artists, a brilliant sidewalk school, or a doctor who spends his time treating border crossers (Doctor Brian Elmore also penned an op-ed for us). And that’s just a taste. This year, I had the opportunity to go to Yale and debate border enforcement, a humbling and educational experience, to say the least. As I wrote about my losing effort, some of the dynamics we constantly struggle with in this sort of border journalism were clearly revealed.
Much has changed over the last year, but—from what I can tell suspended between El Paso and Ciudad Juárez—much has remained the same. The border policy is the same, there is more money in the budgets, there is more money in as-of-yet-unpassed supplemental funding bills, there are more and more contracts for private industry. And now we have an election year. And, as we all know, during an election year, the border is a politician’s sacrificial lamb. So be prepared for a good dose of border theater, and we’ll be here with our coverage, commentary, interviews, and podcasts. The last thing I want to do is stand on that bridge a year from now and watch people wade through the trickling Rio Grande to “pedir posada” at a large gate at an even more fortified border wall in El Paso. That is, however, the likely outcome of 2024, and we will cover all of it. But we will also find the spaces where people are trying to make change, we will listen to the border communities, and we will document the humanitarian efforts. And trust me you, we will be looking in the places where there is generosity toward the stranger.
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40 And the King will answer them, ‘Truly, I say to you, as you did it to one of the least of these my brethren, you did it to me.’
Matthew 25:40
It’s very straightforward. Yet, somewhere between the Nativity and MAGAMike Johnson, the message got lost! The real “War on Christmas” and Judeo-Christian values is being conducted by those in powerful positions who disingenuously press for deadly, illegal, inhumane, dehumanizing treatment of forced migrants!
I read somewhere that God’s eternal promise of Christmas is a closeness with humanity, forgiveness of sins and a radical, unconditional love for all. We ain’t there yet.
Also lost in the rush to cruelty and “deterrence:” Individuals have a legal right to apply for asylum at the U.S. border regardless of whether they arrive at a port of entry. See, INA, section 208.
The so-called “illegal” crossings are driven largely by the USG’s failure to implement timely and fair screening and processing at ports of entry. Even so, many individuals cross nearby the ports and wait patiently, in an orderly manner, outdoors, often in harsh conditions, to be “processed” by CBP.
This is hardly a “law enforcement crisis.” It’s a humanitarian crisis that, despite warnings and plenty of constructive ideas from experts, Congress and the Executive have jointly failed to address in a reasonable and responsible manner.
How unserious are Congress and the Administration about addressing the situation at the border in a responsible manner? The increasing flow of asylum seekers is predictable, considering that it is part of a worsening worldwide refugee flow.
So one logical, obvious thing to do, rather than building walls, prisons, and installing barbed wire, would be to hire and “surge” more USCIS Asylum Officers to the Southern Border to screen asylum seekers for credible fear, perhaps even expanding operations to foreign territory.
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:
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 Merlaysamuel Creative Commons Attribution-Share Alike 3.0 Waiting for Godot in Doon School.jpg Copy [[File:Waiting for Godot in Doon School.jpg|Waiting_for_Godot_in_Doon_School]] Copy December 8, 2011
As predicted by experts from the “git go,” AG Merrick Garland’s indolent, half-baked approach to his most important responsibility — bringing justice and functionality to his Immigration Courts, has been a disastrous failure endangering our entire democracy! PHOTO: Thomas Hawk Creative Commons Amateur Night
Here’s the latest report from TRAC documenting how former Federal Judge Merrick Garland’s failure to fulfill his most important duty — reforming and fixing the U.S. Immigration Courts, has built backlog at record paces and undermined our democracy:
Here’s the “action plan” that’s been publicly available since July 2023 — “Rethinking The U.S. Immigration Court System” — yet largely, and disastrously ignored by Garland, his lieutenants, and the Biden Administration:
The U.S. immigration courts—and the nation’s immigration enforcement system they support—face
an unprecedented crisis. With a backlog of almost 2 million cases, it often takes years to decide cases. Moreover, the recent growth in the caseload is daunting. In fiscal year (FY) 2022, immigration courts received approximately 708,000 new cases, which is 160,000 more than in any previous year. Such numbers, coupled with the courts’ resource constraints and decision-making processes, ensure that the court system will continue to lose ground.
For asylum cases, which now make up 40 percent
of the caseload, the breakdown is even more dire. Noncitizens wait an average of four years for a hearing on their asylum claims to be scheduled,
and longer for a final decision. Those eligible for protection are thus deprived of receiving it in a timely manner, while those denied asylum are unlikely
to be returned to their countries of origin, having
established family and community ties in the United
States during the intervening years. The combination
of years-long backlogs and unlikely returns lies at the
heart of our broken asylum system. That brokenness contributes to the pull factors driving today’s migration to the U.S.-Mexico border, thereby undermining the integrity of the asylum and immigration adjudicative systems, and immigration enforcement overall.
Many of the factors contributing to the dramatic rise in the courts’ caseload have deep and wide-reaching roots, from long-standing operational challenges in administering the courts to new crises in the Americas that have intensified both humanitarian protection needs and other migration pressures. The scale of these twin challenges has made it more urgent than ever to address them together. In the aftermath of lifting the pandemic-era border expulsion policy known as Title 42 in May 2023, the Biden administration is implementing wide-ranging new border policies and strategies that establish incentives and disincentives linking how migrants enter the United States with their access to the asylum system. But timely, fair decisions are also central to the success of this new regime.
While many other studies have outlined wholesale changes in the immigration court system that only Congress can enact, such legislative action seems unlikely, at least in the near term. Thus, this report calls
for changes that can be made by the Executive Office for Immigration Review (EOIR), the agency within the Department of Justice (DOJ) that houses the immigration courts, as it is presently organized. Because the immigration courts are administrative bodies, the executive branch has considerable latitude in determining their policies and procedures. The changes laid out in this report hold great potential to improve the courts’ performance and, in turn, enhance the effectiveness of the U.S. immigration system more broadly.
Some steps in this direction are already being taken. The Biden administration has streamlined certain important policies and procedures at EOIR. Nonetheless, these courts and the Board of Immigration Appeals
2 million
cases in the backlog
About 650
immigration judges nationwide
Less than 500
cases completed per judge in most recent years
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AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
(BIA), which reviews appeals from immigration court decisions, fall short of meeting the hallmarks of a well- functioning adjudicatory system: that decisions be accurate, efficiently made, consistent across both judges and jurisdictions, and accepted as fair by the public and the parties in the case.
Related issues of caseload quantity and decision quality have given rise to the difficulties EOIR is confronting. Under the Trump administration, the reopening of thousands of administratively closed cases and increased interior enforcement led to rising court caseloads. And since 2016, increased border crossings have accounted for growing numbers of new cases, many of them involving asylum claims.
Cases are also taking longer to complete. While pandemic-related restrictions played a role in this slowdown, case completion rates had in fact already been declining. In FY 2009, each immigration judge completed about 1,000 cases per year. By FY 2021, the completion rate had decreased to slightly more than 200 cases per year, even as the number of immigration judges grew. Thus, more judges alone are not the answer. Slow hiring, high turnover, and a lack of support staff have resulted in overwhelmed judges whose productivity has decreased as the backlog has grown.
Concerns about the quality of decision-making by immigration courts and the BIA have existed for decades. More than one in five immigration court decisions were appealed to the BIA in FY 2020, and appeals of BIA decisions have inundated the federal courts. Federal court opinions have pointed to errors of statutory interpretation and faulty reasoning when overturning decisions. Policy changes at
the BIA, ever-changing docket priorities from one
administration to the next, and some recent Supreme
Court directives have contributed to the diminished
adjudicative quality. Wide variances in case outcomes among immigration judges at the same court and across different courts around the country further point to quality concerns; for example, the rate at which individual immigration judges denied asylum claims ranged from 1 to 100 percent in FY 2017–22.
EOIR has increasingly turned to technology to manage its dockets, primarily through video-conferencing court proceedings. The COVID-19 pandemic accelerated its use of internet-based hearings. Four important, yet at times competing, considerations are central when evaluating how technology—and particularly video-conferencing tools—are used in immigration proceedings: efficiency, the impact of technical difficulties, security issues, and concerns about due process.
The U.S. Immigration and Customs Enforcement (ICE) attorneys who prosecute removal cases also play an important role in the court system. Their use of prosecutorial discretion, along with judges’ docket management tools, help shape which cases flow through the system, and how.
Legal defense representation—or the lack of it—is a critical issue plaguing the immigration court system. Noncitizens in immigration proceedings, which are civil in nature, are not entitled to free legal counsel, as
The rate at which asylum claims are denied varies widely, from
1% with one judge to
100%
with another in FY 2017-22
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AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
defendants in criminal proceedings are. But they can face life-changing, and sometimes life-threatening, circumstances when subject to an order of removal from the United States. Studies have repeatedly found that representation in immigration proceedings improves due process and fair outcomes for noncitizens. It also improves efficiency, as represented noncitizens move more quickly through immigration court. Lawyers, accredited representatives, immigration help desks, and legal orientation programs aid some noncitizens through this process. But many more move through complex proceedings pro se (i.e., unrepresented).
Federal funding for representation of noncitizens in removal proceedings is effectively barred. Public funding at the state and local levels has increased the availability of representation for some noncitizens. A large share of representation is provided by nonprofit legal services organizations and pro bono law firm resources. Nonetheless, representation is fragmented and insufficient, given the scale of need.
One element of this system that has seen notable signs of change in recent years has been how border management feeds into the courts’ caseload. The Biden administration began implementing a new
asylum processing rule at the southwest border in June 2022 that aims to ease the growing pressures on immigration courts.1 The rule authorizes asylum officers, who are part of U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security (DHS), to make the final decision in asylum cases instead of immigration judges. Asylum seekers whose claims are denied by an asylum officer can still appeal the decision, but on an expedited timeline. As such, the rule holds the potential to reduce the growth of the immigration court backlog and shorten adjudication times to months instead of years.
Since lifting the Title 42 expulsion policy, the Biden administration has paused implementation of the asylum rule due to competing demands for asylum officer resources. But returning to the rule, and strengthening EOIR’s functioning overall, will be important for managing the flow of cases into the immigration courts and the courts’ ability to keep pace with them. Doing so depends on the court system using technology better, more strategically exercising discretion in removal proceedings, and increasing access to legal representation so that courts deliver decisions that are both timely and fair.
This report’s analysis of the issues facing the nation’s immigration courts and its recommendations for addressing them reflect research and conversations with a diverse group of stakeholders—legal service providers, immigration lawyers and advocates, current and former immigration judges, BIA members and administrators, academics, and other experts who have administered, practiced before, and studied the immigration court system. The report urges EOIR and DHS, in its role as the agency whose decisions and referrals come before EOIR, to work together to:
Strengthen the immigration court system’s management and efficiency
► Schedule new cases on a “last-in, first-decided” basis. Such a reset to the system, which has proven successful in the past, could bring processing times on new cases down to months, rather than years.
1 This rule draws in part on proposals made in an earlier Migration Policy Institute (MPI) report: Doris Meissner, Faye Hipsman, and T. Alexander Aleinikoff, The U.S. Asylum System in Crisis: Charting a Way Forward (Washington, DC: MPI, 2018).
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AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
Because this disadvantages cases that have already been waiting for a long time, it should be treated as a temporary, emergency measure alongside policy and procedural reforms that protect fairness and promote efficiency more broadly. Shifting resources back to adjudicating older cases, as timeliness is established with incoming cases, is essential for shrinking the growth and size of the backlog, which should be among the courts’ highest priorities.
► Terminate cases that do not meet the administration’s prosecutorial guidelines, which focus priorities on felons, security threats, and recent entrants. One approach to this would be to task ICE attorneys with triaging backlog cases to determine which could be fast-tracked for grants of relief or for removal. Such efforts would allow the courts and ICE attorneys to focus on more serious cases, especially those involving criminal charges.
► Centralize case referrals from DHS. Instead of the current practice of having all three DHS immigration agencies (ICE, USCIS, and U.S. Customs and Border Protection) refer cases separately to EOIR, ICE attorneys should initiate all cases. As de facto prosecutors, they are best positioned to determine the legal sufficiency and priority for moving cases the government has an interest in pursuing.
► Establish two tiers of immigration judges—magistrate and merits judges—modeled on existing state and federal court systems where judges and staff are assigned to different roles or dockets so that cases move through the adjudication system efficiently and expeditiously.
► Expand the use of specialized dockets or courts that handle cases involving specific groups of noncitizens or require certain subject matter expertise, such as juveniles, families, reviews of credible fear determinations, cancellation of removal, adjustment of status, and voluntary departure.Restart the asylum officer rule and provide the support needed to implement it
► Establish a dedicated docket for the asylum officer rule’s streamlined appeal proceedings. As the most far-reaching reform the Biden administration has introduced for strengthening management of the asylum and immigration court systems, implementing the rule effectively is key to reducing the pace of caseload growth in the court system and discouraging weak claims.
Upgrade how the courts use technology
► Ensure that technology is used to make immigration courts fairer for everyone involved, such as by holding hearings remotely when parties would be unable to attend an in-person hearing. Special attention should be paid to how the use of technology can affect detained noncitizens and vulnerable populations such as children.
Increase access to legal representation
► Establish a new unit within EOIR devoted to coordinating the agency’s efforts to expand representation. The unit should collaborate with nongovernmental stakeholders to make representation of detained noncitizens a priority and to allow partially accredited representatives— some of whom may be non-lawyers—to appear in immigration court for limited functions.
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AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM
► Develop new and innovative ways to scale up representation by coordinating with lawyers who take responsibility for specific aspects of cases or non-lawyers who are specially trained and supervised
to do so. Legal service providers should build a multi-stage, collaborative online system that enables representation by lawyers or non-lawyers in specific stages of a case for which they have the requisite expertise (e.g., filing forms, attending bond or master calendar hearings, or seeking relief ). This approach requires creating e-files for cases, with files moving from one representative or provider to another as cases progress, resulting in both expert representation at each stage and greater efficiency in moving cases forward overall.
► Encourage efforts by state and local governments to provide and/or increase funding to support representation, especially given current restrictions on federal funding of representation in most removal cases.
Despite efforts by successive administrations to bring
the immigration court system’s unwieldy caseload
under control and to improve the quality of its
decision-making, the courts remain mired in crisis.
And while many of the most pressing problems have
roots that stretch back decades, they have in recent
years reached a breaking point. The measures
proposed in this report hold the potential to reduce
case volumes, increase the pace of decision-making,
and improve the quality of adjudications. They would
also mitigate migration pull factors that result from
years-long waits for decisions. The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.
The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement
and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.
BOX 1
About the Rethinking U.S. Immigration Policy Project
This report is part of a multiyear Migration Policy Institute (MPI) project, Rethinking U.S. Immigration Policy. At a time when U.S. immigration realities are changing rapidly, this initiative has been generating a big- picture, evidence-driven vision of the role immigration can and should play in America’s future. It provides research, analysis, and policy ideas and proposals—both administrative and legislative—that reflect these new realities and needs for immigration to better align with U.S. national interests.
The research, analyses, and convenings conducted for MPI’s Rethinking initiative address critical immigration issues, which include economic competitiveness, national security, and changing demographic trends, as well as issues of immigration enforcement and administering the nation’s immigration system.
To learn more about the project and read other reports and policy briefs generated by the Rethinking U.S. Immigration Policy initiative, see bit.ly/RethinkingImmigration.
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Read the full report at the link.
Not the first time I’ve said this, but it’s time for “Amateur Night @ The Bijou” (“A/K/A Merrick Garland’s failed EOIR”) to end! Reassign the EOIR senior management folks who have demonstrated “beyond any reasonable doubt” their inability to provide dynamic, due process with efficiency management and visiononary leadership and to solve pressing problems. (This includes the inability to stand up and “just say no” to bonehead “gimmicks” like Garland’s due-process-denying, quality diminishing, backlog-building, “expedited dockets”).
It’s not an exaggeration to say that the anti-asylum, anti-human rights, anti-reality charade now playing out in Congress is driven in large part by Garland’s three-year failure to do his job by getting functionality and due process focused leadership into EOIR.
Bring in a competent, expert executive team, hand them the MPI Plan, and empower them to move whatever “bureaucratic mountains” need to be moved to get results, including, but not limited to, major personnel changes at the BIA and in Immigration Courts and taking a “hard line” with counterproductive performance by DHS (actually “just a party” before the Immigration Courts, NOT “their bosses!”)
Bring in these experts:
Judge (Retired) Dana Leigh Marks
Professor Stephen Yale-Loehr
Dean Kevin Johnson
Michelle Mendez (NIPNLG)
Professor Michele Pistone
Jason “The Asylumist” Dzubow
Wendy Young (KIND)
Task this “Magnificent Seven” — folks with centuries of practical expertise and creative ideas for actually solving humanitarian problems (rather than making them worse, as per the ongoing travesty on the Hill) — with turning around the EOIR disaster; support and empower them to achieve results and to reject politicized bureaucratic meddling from DOJ and elsewhere! Make the long-unfilled “promise of INS v. Cardoza-Fonseca” — a legitimate, properly generous, practical, efficient asylum and refugee adjudication system that complies with international and domestic law and simple human decency — a reality!
This is about rebuilding America’s most important and consequential court system, NOT running an “government agency!”
This is also the “demand” that Congressional Dems SHOULD be making of the Biden Administration, instead of engaging in disgraceful (non) “bargaining” with GOP nativists that seek an end to asylum and an increase to human suffering and ensure continuing humanitarian disaster at our borders!
Melissa Del Bosque Border Reporter PHOTO: Melissadelbosque.comCaitlyn Yates Fellow Strauss Center for International Law & Security PHOTO: Strauss Center
This podcast from Melissa Del Bosque of The Border Chronicle and Caitlyn Yates, who actually works with migrants in the Darien Gap, gives real life perspective on the humanitarian crisis and all the reasons why more cruelty, punishment, and deadly deterrence isn’t going to solve the flow of forced migrants. But, unhappily, policy makers aren’t interested in the voices of those who actually have experience with forced migrants, nor are they interested in learning from the forced migrants themselves — a logical — if constantly ignored — starting point for making sound policy decisions!
Migration and human rights experts have excelled in court and academia. Yet, they have been consigned to wander the political wilderness, their wisdom, expertise, and real world solutions are routinely ignored or mindlessly rejected by both political parties. Colmar – Unterlinden Museum – The Isenheim Altarpiece 1512-16 by Matthias Grünewald (ca 1470-1528) – Visit of Saint Anthony the Great to Saint Paul the Hermit in the Wilderness Creative Commons
Four “takeaways” on what a consensus on migration should be:
Human migration is real;
Forced migration is largely beyond the unilateral control of any one nation;
Deterrence alone won’t stop migration;
More legal pathways for migration are necessary.
We’re a long way from that needed consensus right now!
A robust asylum system is essential to national security. A closed border is as dangerous as an open border. If you close the asylum system, they will just cross illegally. Republicans need the border out of control. This is a trap!
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That’s it in a nutshell! Reality and practicality have nothing to do with it. It’s about the GOP creating chaos and fanning hate! Unhappily, Dems fall for it — every time! That’s why American democracy is on the ropes!
The Dems have ready access to the greatest “treasure trove” of real life expertise and truth about the border in history. Yet, they routinely ignore it and let themselves be “hoodwinked” by GOP nativists peddling lies, hate, and myths. It’s seriously undermining our democracy while squandering human lives and potential!
There’s deep irony in “national security” being disingenuously parroted by a party lead by a demagogue who encouraged actual insurrection against the U.S. Government! Yet Dems and the “mainstream media” fall for it! Gimmie a break!
WASHINGTON (AP) – President Joe Biden is taking a more active role in Senate negotiations about changes to the immigration system that Republicans are demanding in exchange for providing money to Ukraine in its fight against Russia and Israel for the war with Hamas.
The Democratic president has said he is willing to make “significant compromises on the border” as Republicans block the wartime aid in Congress. The White House is expected to get more involved in talks this week as the impasse over changes to border policy has deepened and the money remaining for Ukraine has dwindled.
Republican Sen. James Lankford of Oklahoma, who is leading the negotiations, pointed to the surge of people entering the U.S. from Mexico and said “it is literally spiraling out of control.”
But many immigration advocates, including some Democrats, say some of the changes being proposed would gut protections for people who desperately need help and would not really ease the chaos at the border.
Connecticut Sen. Chris Murphy, the top Democratic bargainer, said the White House would take a more active role in the talks. But he also panned Republican policy demands so far as “unreasonable.”
. . . .
Critics say the problem is that most people do not end up getting asylum when their case finally makes it to immigration court. But they say migrants know that if they claim asylum, they essentially will be allowed to stay in America for years.
“People aren’t necessarily coming to apply for asylum as much to access that asylum adjudication process,” said Andrew Arthur, a former immigration court judge and fellow at the Center for Immigration Studies, which advocates for less immigration in the U.S.
Some of what lawmakers are discussing would raise the bar that migrants need to meet during that initial credible fear interview. Those who do not meet it would be sent home.
But Paul Schmidt, a retired immigration court judge who blogs about immigration court issues, said the credible fear interview was never intended to be so tough. Migrants are doing the interview soon after arriving at the border from an often arduous and traumatizing journey, he said. Schmidt said the interview is more of an “initial screening” to weed out those with frivolous asylum claims.
Schmidt also questioned the argument that most migrants fail their final asylum screening. He said some immigration judges apply overly restrictive standards and that the system is so backlogged that it is hard to know exactly what the most recent and reliable statistics are.
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WHAT MIGHT THESE CHANGES DO?
Much of the disagreement over these proposed changes comes down to whether people think deterrence works.
Arthur, the former immigration court judge, thinks it does. He said changes to the credible fear asylum standards and restrictions on the use of humanitarian parole would be a “game changer.” He said it would be a “costly endeavor” as the government would have to detain and deport many more migrants than today. But, he argued, eventually the numbers of people arriving would drop.
But others, like Schmidt, the retired immigration court judge, say migrants are so desperate, they will come anyway and make dangerous journeys to evade Border Patrol.
“Desperate people do desperate things,” he said.
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Ignoring both the powerful forces that drive human migration and folks who actually work with migrants at the border and in foreign countries seems like a totally insane way to “debate policy.” But, then, whoever said this “nativist-driven debate” on enhanced cruelty, dismantling the rule of law, and de-humanization is rational?
You can read Rebecca’s full article, with an “accessible” explanation of what’s at stake and what’s being proposed at the above link.
The settlement involves a 2018 lawsuit filed by the American Civil Liberties Union to block the Trump administration’s “zero tolerance” policy, which called for separating parents from their children to prosecute the adults for crossing the border illegally. Officials sent parents to detention centers and children to shelters, without a plan to reunite them, under the policy. Some were apart for months, some for years.
“It does represent, in my view, one of the most shameful chapters in the history of our country,” U.S. District Judge Dana M. Sabraw said before he approved the settlement in a hearing that recalled the shock and disbelief surrounding the policy in 2018.
Under the settlement approved Friday, crossing the border illegally will no longer be a reason to separate a family, at least for the next eight years, which is how long that provision will last, lawyers said. The Justice Department has said the government will not prosecute parents for crossing the border without permission, a misdemeanor, or for the felony crime of reentering after being deported.
The settlement also offers aid to once-separated families so that they may apply to stay in the United States permanently. Those who were deported may apply to come back. Their immigration records will be cleared, giving them a fresh start on applying for humanitarian protection such as asylum.
Once they are in the United States, formerly separated families may apply for three-year work permits, six months of housing assistance and one year of medical care, according to the settlement. The families also are eligible for three years of counseling under the settlement.
Sabraw, a Republican nominee, declared the separations unlawful and ordered the families reunited in June 2018, after President Donald Trump halted the policy amid widespread condemnation.
Trump’s zero-tolerance policy ran from May to June 2018. Later, investigations determined that officials separated migrant families throughout Trump’s four-year term, which ended in January 2021.
Biden administration officials said the Trump administration separated more than 4,000 children from their parents, though past estimates have put that figure as high as 5,500. Lawyers for the ACLU, which represented the migrant families in court, estimated that as many as 1,000 children may still be separated from their parents. Advocates are trying to track them down.
The ACLU has called the case the most significant settlement in the organization’s 103-year history.
“This settlement brings much needed help to these brutalized children but there remains significant work to ensure that every family is now reunited and to monitor that no future administration tries to circumvent the agreement and reenact the same horrific policy,” Lee Gelernt, an ACLU lawyer and the lead counsel in the case, said in a statement.
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Read the rest of Maria’s report at the link!
The human and fiscal costs of this illegal policy, developed and implemented by GOP White Nationalist child abusers, is beyond comprehension! Some of the damage can never be repaired!
Notably, there has never been any accountability for the architects of this clearly unconstitutional abuse and the Government attorneys who failed to do “due diligence” and misrepresented the facts surrounding child separation in Federal Court. The truth was only brought out when the ACLU was forced to do the DOJ’s job for it! It’s also curious how a prohibition on clearly unconstitutional conduct could have only an “eight year shelf life.”
But, there are even worse developments on the horizon — immoral, illegal, and unconscionable policies under consideration that will dwarf even this horrible episode in terms of preventable deaths, disregard for humanity, dereliction of duty, moral cowardice, and degradation of our nation!
Why are Dems ignoring their “core supporters” and negotiating with this notorious human rights abuser! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
So why are Dem legislators and the Administration “negotiating” even more outrageous legal violations, moral transgressions, and human rights abuses with the GOP? Talk about “shameful!” If Dems don’t get some backbone and live up to their professed values and the law, “shameful” will have a whole new meaning!
Here’s a link to tell your Congressional representatives to “just say no” to the truly repulsive proposals to bully and inflict pointless harm on the most vulnerable and to arrogantly violate human rights on a massive scale being pushed by theGOP and some so-called Dems.https://lnkd.in/gp2RteRr.
Trading away human rights that are not yours to dispose of for unrelated foreign military aid is beyond unconscionable! 🤮
