"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.
BIA Asylum Panel cutting down the backlog by trampling asylum seekers and their legal rights! Guatemalans are a favorite target for Garland’s “Band of Bullies” at EOIR. Albrecht Dürer, Public domain, via Wikimedia Commons
Dan Kowalski reports for LexisNexis Immigration Community:
CA3 on Guatemala, Law, Facts and Standard of Review: Saban-Cach v. Atty. Gen.
Saban-Cach v. Atty. Gen.
“Based on past experiences, if returned to Guatemala, Selvin Heraldo Saban-Cach fears being persecuted by a local gang because of his identity as an indigenous person. Accordingly, he seeks withholding of removal under the Immigration and Nationality Act and protection from removal under the Convention Against Torture. The Immigration Judge denied his applications and ordered his removal, and the Board of Immigration Appeals affirmed. This petition for review followed. For the reasons that follow, we will grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this opinion. … Although the BIA need not write an overly detailed explanation of its review of an IJ’s decision, it must provide an adequate explanation of its ruling and afford us an opportunity to review it. Here, the BIA did neither. At times, the IJ’s decision completely conflicts with the record. Yet, for reasons that are not at all apparent, the BIA affirmed the IJ’s decision in its entirety. … The BIA must review the first, factual question for clear error and the second, legal question de novo. In affirming the IJ’s decision of the second question regarding acquiescence, the BIA concluded that it found “no clear error in the [IJ]’s predictive fact-finding.” Accordingly, in addition to not bifurcating the Myrie step-two inquiry, the BIA also erred by applying this heightened standard of review to a legal question. Because of these errors, “we have little insight into the basis for [the BIA’s] determination that the IJ’s opinion ‘clearly reflects that [s]he used the proper “willful blindness” standard in relation to the issue of acquiescence.’” Accordingly, on remand the BIA needs to reassess each question.”
[Hats way off to Stephanie Norton, CSJ Practitioner-in-Residence, Detained Immigrant Project Education, Seton Hall!]
Stephanie Norton CSJ Practitioner-in-Residence, Detained Immigrant Project Education, Seton Hall Law PHOTO: Seton Hall Law website
********************
Congratulations to NDPA star Stephanie Norton! This is yet another example of the great talent “out here” who could replace mal-functioning EOIR judges. Human lives are at stake, this system is dysfunctional, crying out for bold reforms! Wonder how the Dems will try to “spin” their miserable performance at EOIR in 2024?
The IJ’s and BIA’s findings of “no past persecution” in this case rise to the level of absurd! Here’s what happened:
The BIA recognized that gang members had attacked Saban-Cach on multiple occasions and that the worst attack left him unconscious after he was stabbed with a broken glass bottle. However, the BIA agreed with the IJ that, in the aggregate, this abuse did not rise to the level of persecution. The BIA explained that, “because most of the incidents did not involve physical injuries, and because the worst attack did not require him to seek professional medical care for his physical injuries, the applicant did not establish harm rising to the level of past persecution.”
Come on man! No competent, fair minded judge would reach such a totally ridiculous conclusion based on such shallow, specious, and basically “made up reasoning!” Not incidentally, it also directly conflicted with Circuit precedent as well as with the realities of life in Guatemala!
The BIA also ran roughshod over its OWN binding precedent, Matter of O-Z- & I-Z-, 23 I&N Dec. 22 (BIA 1998) (cumulative harm is persecution), which should have made a finding of past persecution a “no brainer” for a panel of competent asylum adjudicators! The sloppy, biased, “any reason to deny” culture at EOIR is a major cause of their out of control backlog. Efforts to deny easily grantable cases, and failure to direct wayward asylum-denying IJs to get it right in the first place, is a drag on our entire justice system — all the way up to the Courts of Appeals!
That’s because EOIR’s “any reason to deny” approach to asylum encourages, and often rewards, frivolous litigating positions by ICE, discourages stipulations and settlements in cases that should easily be granted, and results in OIL taking ethically and legally flawed positions in the Courts of Appeals. For example, in this case the 3rd Circuit characterized parts of OIL’s position as “disingenuous,” “puzzling and disappointing,” and pointedly stated that “[r]egrettably, the government’s response brief doubles down on this inaccuracy.”
So, these are the legal quality and ethical standards set at DOJ by AG Merrick Garland, a former Circuit Judge himself who certainly should be expected to “know better.” Apparently, in his view, due process, fundamental fairness, impartial adjudication, adherence to the law, judicial and legal ethics don’t apply when it’s “only migrants” whose lives are at stake! While this is a common approach from White Nationalist GOP politicos, don’t we deserve better from a Dem Administration that claims to care about racial justice, but whose actions with respect to migrants say otherwise?
The court also blasted EOIR for “ethnocentric” judging and failure to fairly evaluate cases.
We have previously cautioned IJs and the BIA against ethnocentric evaluations of petitioners’ resources. Petitioners primarily come from countries in the poorest and most dangerous regions of the world. Any presumption that they enjoy the same kinds of resources as their adjudicators is shortsighted and unfair. Unless the record supports it, IJs and the BIA should not assume that their own views of appropriate medical care and its ready accessibility make up a universal reality.
Petitioners for relief under the asylum system must be afforded the just hearing that due process and basic fairness demands. The immigration system can only provide a fair and neutral determination of the claims of people from different cultural and economic circumstances if adjudicators diligently avoid unrealistic assumptions about petitioners’ circumstances.
Any competent asylum practitioner would understand what the court is getting at. But, EOIR IJs at both the trial and appellate level make these basic mistakes time after time.
The 3rd Circuit and other courts might claim to find the BIA’s “entire” affirmance of a decision often in “complete conflict” with the record to be inexplicable. But, WE know that it’s because the “deportation assembly line” works on the “principle” of “any reason to deny” and “keep cranking out those final orders of removal.” To Hell with justice, quality, fairness, and the human lives involved!
This disasterous, backlogged, “star chamber system” is neither appropriately staffed nor competently operated to afford individuals “the just hearing that due process and basic fairness demands.” How is this due process and fundamental fairness required by our Constitution?
“Justice” Star Chamber Style. — AG Merrick Garland appears to be blissfully unconcerned about the methods applied by too many of his EOIR “judges,” and his DOJ attorneys who “run interference” for them, to achieve “removal for any reason, at any cost!”
Until a court has the guts to “pull the plug” on EOIR’s ongoing, deadly clown show 🤡, declare it unconstitutional, and require at least minimal due process reforms, these outrages will continue! “Puzzling” about recurring miscarriages of justice at EOIR, as the 3rd Circuit did here, is one thing; acting decisively to enforce the Constitution by stopping the abuse, once and for all, is quite different. Requiring EOIR judges with demonstrated expertise in asylum law, willing to professionally review records, and decide cases of asylum seekers correctly, without “ethnocentrism” or bias, would be a logical starting point! It should be a “no brainer!”
“When you walk into your EOIR ‘courtroom’ and this guy takes the bench, you’re probably in for a BAD day! Isn’t it time to finally END the ‘Clown Show’ in our dystopian Immigration ‘Courts?'” PHOTO: Clown Civertan.jpg, Creative Commons License
On Jan. 5, the Biden administration announced that it planned to issue a regulation “to provide that individuals who circumvent available, established pathways to lawful migration, and also fail to seek protection in a country through which they traveled on their way to the United States, will be subject to a rebuttable presumption of asylum ineligibility in the United States.”
These two reasons to bar people from seeking asylum — for transiting through other countries and for crossing the U.S. border without authorization — have different rationales and historical origins. But both have been marshaled against Central Americans since the late 1980s — severely undermining access to asylum. Doing so endangers people’s lives and breaks U.S. and international law. History reveals the purpose and perils of such bars.
No such bars stopped earlier waves of refugees seeking protection in the United States, especially those coming from Europe. When people who fled the Bolshevik Revolution applied to be considered “bona fide refugees” under a 1934 U.S. law, it did not matter that they had spent several years during the previous decade in Germany, France, China, Argentina, Cuba, Mexico or Canada and then crossed a land border without getting inspected by a U.S. official — as many did — beginning in the mid-1920s. They told immigration officials that conditions in those countries made it hard for them to live and it would be years before they could qualify for an immigration visa to the United States. So, they made their way to the United States on their own — and their mode of entry, and even their use of fraudulent travel documents, did not preclude them from adjusting to permanent status.
. . . .
The Biden administration insists its regulation will be different because it has opened up new legal pathways from transit countries and it will give asylum seekers a chance to prove why they didn’t use one of the legal pathways available to them. But migrants from Guatemala and Honduras lack parole programs that are newly available only to Venezuelans, Nicaraguans, Cubans and Haitians who have passports and sponsors in the United States. Further, parole, discretionary temporary permission to enter and stay in the United States with no path to citizenship, is a far cry from permanent refugee status. Fifteen thousand refugee resettlement slots this year are for all of the Caribbean and Latin America, where over 7 million Venezuelans are displaced. It is hard not to see this rule as an effort to limit access to asylum in the United States specifically for people from northern Central America and to treat today’s forcibly displaced people from the Americas unlike people seeking refuge from elsewhere in the past.
******************
Read Yael’s complete article at the link.
Many of us had believed that the Biden Administration would get beyond the biases, manipulations of law, and implicit or explicit racism of the past to achieve the orderly, legal, timely admission of refugees, including those from Latin America, from abroad and at the border. Unfortunately and outrageously, they haven’t even tried!
Instead, they have turned human rights and border policies into an unholy, largely incomprehensible and arbitrary, mishmash of many of the worst, most ineffective, and invidiously biased policies of the past.
Immigration Courts across the U.S. have been randomly rescheduling and advancing cases without regard to attorney availability or whether we have the capacity to complete our cases. The very predictable result of this fiasco is that lawyers are stressed and overworked, our ability to adequately prepare cases has been reduced, and–worst of all–asylum seekers are being deprived of their right to a fair hearing. Besides these obvious consequences, the policy of reshuffling court cases is having other insidious effects that are less visible, but no less damaging. Here, I want to talk about some of the ongoing collateral damage caused by EOIR’s decision to toss aside due process of law in favor of reducing the Immigration Court backlog.
As an initial matter, it’s important to acknowledge that the Immigration Court backlog is huge. There are currently more than 2 million pending cases, which is more than at any time in the history of the Immigration Court system. To address this situation, EOIR (the Executive Office for Immigration Review – the office that oversees our nation’s Immigration Courts) has been working with DHS (the prosecutor) to dismiss low-priority cases, where the non-citizen does not have criminal issues or pose a national security threat. Also, the U.S. government has been doing its best to turn away asylum seekers at the Southern border, which has perhaps slowed the growth of the backlog, but has also (probably) violated our obligations under U.S. and international law.
In addition, EOIR has been hiring new Immigration Judges (“IJs”) at a break neck pace. In the past few years, there has been a dramatic increase in the number of IJs nationwide, though some parts of the country have received more judges than others. In those localities with lots of new IJs, EOIR has been advancing thousands of cases. The goal is to complete cases and reduce the backlog. Why EOIR has failed to coordinate its new schedule with stakeholders, such as respondents and immigration attorneys, I do not know.
What I do know is that EOIR’s efforts have created great hardships for attorneys and respondents (respondents are the non-citizens in Immigration Court). Also, I expect that this whole rescheduling debacle will have long-term effects on the Immigration Courts, as well as on the immigration bar.
The most obvious effect is that lawyers and respondents simply do not have enough time to properly prepare their cases. When a hearing was set for 2025 and then suddenly advanced to a date a few months in the future, it may not be enough time to gather evidence and prepare the case. Also, this is not occurring in a vacuum. Lawyers (like me) are seeing dozens of cases advanced without warning, and so we have to manage all of those, plus our regular case load. So the most immediate consequence of EOIR’s policy is that asylum seekers and other respondents often do not have an opportunity to present their best case.
Perhaps less obviously, lawyers are being forced to turn work away. We can only competently handle so many matters, and when we are being assaulted day-by-day with newly rescheduled cases, we cannot predict our ability to take on a new case. In my office, we have been saying “no” more and more frequently to potential clients. Of course, this also affects existing clients who need additional work. Want to expedite your asylum case? Need a travel document to see a sick relative? I can’t give you a time frame for when we can complete the work, because I do not know what EOIR will throw at me tomorrow.
One option for lawyers is to raise prices. We have not yet done that in my office, but it is under consideration. What we have done is increase the amount of the down payment we require. Why? Because as soon as we enter our name as the lawyer, we take on certain obligations. And since cases now often move very quickly, we need to be sure we get paid. If not, we go out of business. The problem is that many people cannot afford a large down payment or cannot pay the total fee over a shortened (and unpredictable) period of time. The result is that fewer non-citizens will be able to hire lawyers.
Well, there is one caveat–crummy lawyers will continue to take more and more cases, rake in more and more money, and do very little to help their clients. Such lawyers are not concerned about the quality of their work or doing a good job for their clients. They simply want to make money. EOIR’s policy will certainly benefit them, as responsible attorneys will be forced to turn away business, those without scruples will be waiting to take up the slack.
Finally, since EOIR is increasing attorney stress and burnout to untenable levels, I expect we will see lawyers start to leave the profession. I have talked to many colleagues who are ready to go. Some are suffering physical and mental health difficulties due to the impossible work load. Most immigration lawyers are very committed to their clients and have a sense of mission, but it is extremely difficult to work in an environment where you cannot control your own schedule, you cannot do your best for your clients, you cannot fulfill your obligations to your family and friends, and where you are regularly abused and treated with contempt. Long before EOIR started re-arranging our schedules, burnout among immigration lawyers was a serious problem. Today, that problem is exponentially worse, thanks to EOIR’s utter disrespect for the immigration bar. I have little doubt that the long term effect will be to drive good attorneys away from the profession.
For me, the saddest part of this whole mess is that it did not have to be this way. EOIR could have worked with attorneys to advance cases in an orderly manner and to ensure that respondents and their lawyers were protected. But that is not what happened. Instead, EOIR has betrayed its stated mission, “to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws.” Respondents, their attorneys, and the immigration system are all worse off because of it.
***********************
Jason Dzubow The Asylumist
“For me, the saddest part of this whole mess is that it did not have to be this way.” Amen, Jason! Me too! And, I think I speak for most, if not all, of my esteemed colleagues on the Round Table of Former Immigration Judges and BIA Members.”⚔️🛡
In addition to betraying its mission “to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws,” EOIR has trashed its noble once-vision: “Through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all!”
The use of the word “uniformity” in EOIR’s “mission” is an absurdity given the “range” of asylum denials fostered and tolerated by Garland’s dysfunctional system: 0-100%! It’s also understandable, if unforgivable, that EOIR no longer features words like “due process,” “fundamental fairness,” “teamwork,” and “innovation” prominently on its website!
A Dem AG is attacking our American justice system and the legal profession at the “retail level” and causing real, perhaps “irreparable,” damage! What’s wrong with this picture? Everything! What are we going to do about it? Or, more appropriately, what are YOU going to do about it, as my time on the stage, and that of my contemporaries, is winding down?
All of these particularities matter, because once all available options have been exhausted, cases generally end up inside an immigration court before an immigration judge. The administrative snarls that predate a case before it arrives in immigration court are thus a result of policy from the top, for better or worse.
On paper, courts are supposed to be independent bodies. They are supposed to be immune from the political agendas of other government operatives or serve as independent mediators that can rectify previous errors.
But immigration courts are not. As a part of the Justice Department, at the end of the day, they work under the attorney general. While other courts function under a de jure practice of independence, immigration courts are held to the same standard despite not possessing the same protections that allow other judges to carry out their basic job functions. This creates an impossible work environment for immigration judges to fairly adjudicate every case with the attention it deserves. Instead, their measurements of success are based on accomplishing the president’s goals, which are translated into quotas for immigration courts. For example, Biden administration officials touted removing 1.3 million migrants last year.
As the Prospect has previously reported, immigration judges have long pointed out the tenuous environment they must work in.
But later this month, the Federal Labor Relations Authority (FLRA) will be hearing from the National Association of Immigration Judges (NAIJ) over whether or not their union will be reinstated. The FLRA will now have a majority of Biden appointees.
A dysfunctional immigration system can only start to work with independent courts. But that change can only happen through congressional action. In the meantime, a never-ending crisis at the border can be exploited by one party, as the other expands the needlessly punitive immigration practices of the previous administration.
*******************
Many thanks to prodigious immigration commentator Nolan Rappaport for passing this along to me.
There is consensus among experts that an independent Article I Immigration Court is urgently needed and long overdue. There is also a consensus that the chance of achieving this critical legislative change with a GOP-controlled House is zero. At the same time, we must remember that Dems didn’t exactly give any priority to this essential and far-reaching reform when they had “unified control” over the political branches.
There is also consensus that in the absence of Article I there are things that Garland and the Biden Administration could and should have done administratively that would have drastically improved the due process, expertise, quality, efficiency, “customer service,” and professionalism of EOIR.
Gee whiz, a Harvard Law student figured it out! They haveconstructive suggestions for administrative reforms to change culture, improve training, place docket control in the hands of judges not politicos and bureaucrats, increase independence, improve quality, and insulate IJs from the political whims and enforcement agendas of each Administration. Seehttps://wp.me/p8eeJm-8hE?
But, a Harvard Law grad, long-time Federal Judge, and Supremes’ nominee, and his band of supposedly smart and high-powered political lieutenants couldn’t or wouldn’t get it done for a Dem Administration? Gimmie a break!
A Dem Administration that was supposed to get us beyond the cruelty, White Nationalism, xenophobia, and “malicious incompetence” of the Trump Administration falls flat on its face on a critical and achievable part of immigration reform and racial justice in America! Go figure!
Meanwhile, the cries of pain keep coming from those subjected to Garland’s dystopian “courts!”
Had an “interesting” IH today with this IJ. [IJ] denied my motion to continue the case by email the evening before the 8:30 am hearing, even though I had four IHs scheduled in the same time slot and had filed a motion to continue a month before the hearing. [IJ] refused to grant me a few minutes to speak with OPLA counsel before the hearing to narrow issues, saying that discussion should have already taken place. [IJ] spent an inordinate amount of time on housekeeping issues. [IJ] read a list of “rules.” [IJ] would insist that counsel stand when they spoke. [IJ] would routinely deny motions for webex hearings. [IJ] went through the biographical information excruciatingly slowly, including having the respondent spell the names of all the riders, provide their birth dates, etc.
It was a case where DHS had stipulated to 42b and the only issue would’ve been discretion but the IJ didn’t care. [IJ] told me to let everyone know that [IJ] reads each and every single document submitted in . . . court from back to front and . . . has a lot of questions . . . . [IJ] went on to conduct a full hearing, chastised DHS for stipulating, made a big deal of every little thing, asked irrelevant questions about medicaid forms that [client] may have filled for her children (not included as part of evidence), insinuated that she committed medicaid fraud, and made the ACC change position on each and every issue.
[The IJ] denied the asylum application of a young gay man from El Salvador. This is a first for me, in my 20+ years of asylum practice. We’ve never lost such a case that I can recall.
The facts are pretty typical – the kid lived a life of humiliation and abuse in El Salvador due to his sexual orientation; tried to commit suicide several times; and ultimately left the country when the Mara 18 tried to get him to deliver marijuana for them. Arguably, not a strong case for past persecution, but such cases typically prevail where a judge fairly evaluates a claim of well-founded fear of future persecution and considers the country condition reports and articles about the horrendous human rights abuses against the LGBT community in El Salvador. This didn’t fly with IJ. [IJ] simply said “there is no meaningful evidence in the record to demonstrate that the Respondent would experience harm amounting to persecution in El Salvador” and then went on to say that the client would likely experience more bullying and discrimination, but that doesn’t mean it would be persecution. [IJ] did not mention any country conditions report or article from the record to support his ruling.
[T]he DHS attorney called me directly after the hearing to empathize and tell me that it’s well-known even on their side that this judge is a piece of work and it’s always a good idea to take PD if offered.
[T]his judge is a menace. I don’t know what to do to protect my clients from [IJ] other than prepare strong BIA appeals.
This is the third email I have received to schedule MORE cases. No one will tell me what the goal is. I’ve put them on notice of the health issues this is/has been causing me.
Please tell the higher ups that this practice of overscheduling the private bar is taking a serious toll on practitioners’ health. Medical documentation is below and attached. I’m really not sure why the court has felt the need to overschedule practitioners to this level, but it is really taking a serious toll on everyone. Can someone please shed light on this urgent need to overwhelm the limited number of defense attorneys we have in the area?
Another outstanding Immigration Court practitioner told me that they had left courtroom practice and taken a “research and writing” position because the EOIR courtroom “experience” under Garland was so dehumanizing, demoralizing, stressful, and life consuming!
A different attorney called me with concerns that an IJ’s “over the top” abuse of pro bono counsel would discourage others from taking cases in Immigration Court.
IJ’s wasting time; discouraging negation and stipulation by parties; taking over hearings; abusing continuance discretion; failing to abide by Cardoza & Mogharrabi; showing bias; producing wildly inconsistent anti-immigrant results; showing thin knowledge of law; rudely treating counsel and clients; over-scheduling; abusing power; endangering the health of those appearing before them; driving practitioners to leave the EOIR courtrooms; discouraging pro bono!
Everything that is NOT what a fair, independent, court of law should be is present and allowed, perhaps even encouraged, in Garland’s broken EOIR! Why is this type of grotesque mismanagement, bad judging, unprofessional conduct, and disregard of fundamental due process “business as usual” under a Dem Administration?
This “star chamber” system needs new, expert, progressive, due-process-focused, free from political hackery and inane gimmicks, “kick-ass” management! Garland isn’t getting the job done!
These younger progressives are exactly the “core support” that Dems will need to win future elections! How does “dissing” them with inept leadership and ineffective nativist-derived immigration policies help the cause?
Honestly, what a mess! Garland’s dystopian EOIR is the Democratic Party’s shame!
Immigration law rocks with “Professor Stevie & His Ramblin’ Band of Experts!” Public Realm
Immigration Reform: Lessons Learned and a Path Forward
Congress has been unable to enact comprehensive immigration reform for over 30 years.
Employers face an unprecedented shortage of workers.
The Dreamers, long-contributing members of our society, face uncertainty due to litigation questioning the legality of the DACA program.
And border security concerns everyone.
Polls suggest Americans want immigration reform. But the conventional wisdom is that “comprehensive immigration reform” is impossible in a divided Congress.
This conference will explore targeted legislation and other policy changes that could be enacted in 2023, focusing on work visa changes to help alleviate our labor shortages, border security and asylum reforms, and a permanent path forward for Dreamers, farmworkers.
Sponsored by the Cornell Law School Immigration Law and Policy Research Program and cosponsored by the Cornell Migrations Initiative.
While we encourage in-person attendance, the conference will be webcast live from the National Press Club. Mark your calendars now for this important event!
Panelists from the following organizations:
American Action Forum, American Business Immigration Coalition, AmericanHort, Bipartisan Policy Center, Compete America, Cornell Law School, Migration Policy Institute, National Association of Evangelicals, National Immigration Forum, Niskanen Center, Service Employees International Union,
Texas Association of Business, TheDream.US, UnidosUS,
United Farm Workers of America, U.S. Chamber of Commerce
A special thanks to the Charles Koch Foundation for sponsoring this event.
This is a promising idea. Hope it works! I have to wonder, however, why a coordinated effort like this wasn’t implemented for asylum seekers arriving at the Southern Border?
You can register (free) for the Cornell Conference, where this and other timely topics will be discussed by the experts!
“Those of us who care about people on the wrong side of history just have to help case by case, person by person.” – Anne Pilsbury, quoted in Francisco Goldman, “Escape to New York,” The New Yorker, Aug. 9, 2016.
Anne Pilsbury is well; she continues to work at Central American Legal Assistance (“CALA”), the organization she founded almost four decades ago. She was recently awarded the Carol Weiss King Award by the National Immigration Project of the National Lawyers Guild. She remains most generous in sharing her knowledge with the immigration law community in New York.
However, as of January 1, Anne has stepped down from CALA’s helm, passing the Directorship of the organization to the extremely talented Heather Axford.
It thus seems like an appropriate time to honor Anne’s extraordinary career. Her path from Washington, D.C. to Maine “country lawyer” to representing asylum-seekers in Williamsburg, Brooklyn is a fascinating one. It began with Anne’s role as plaintiff’s counsel in Hobson v. Wilson,1 a remarkable case having nothing to do with immigration law.
Hobson involved a top-secret FBI operation of the late-1960s to early-1970s called COINTELPRO, which targeted civil rights groups seeking racial equality, and another set of organizations actively opposing the Vietnam war. COINTELPRO specifically listed the Southern Christian Leadership Conference led by Rev. Martin Luther King, Jr., and the Student Nonviolent Coordinating Committee as primary targets.
In the words of the D.C. Circuit Court of Appeals, COINTELPRO focused on “(1) efforts to create racial animosity between Blacks and Whites; (2) interference with lawful demonstration logistics; (3) efforts to create discord within groups or to portray a group’s motives or goals falsely to the public; and (4) direct efforts to intimidate the plaintiffs.”2
From December 1963 until his death in 1968, Martin Luther King, Jr. was the target of an intensive campaign by the Federal Bureau of Investigation to “neutralize” him as an effective civil rights leader. In the words of the man in charge of the FBI’s “war” against Dr. King:
No-holds were barred. We have used [similar] techniques against Soviet agents. [The same methods were] brought home against any organization against which we were targeted. We did not differentiate. This is a rough, tough business.3
Beginning her work on the case as a law student in D.C. and continuing with the case while in private practice in D.C., Anne and her co-counsel brought suit against the FBI for systemically violating their clients’ “constitutional rights, individually and through conspiracies, while plaintiffs engaged in lawful protest against government policy in the late 1960’s and in the 1970’s in the Washington area.”4 After a 17 day trial, Anne and her colleagues won the suit. In my view, that case alone earned Anne membership in the Due Process Army Hall of Fame.
During the time Hobson was being litigated, Anne moved to Maine, opening her own practice there in the town of Norway (pop. 5,000), traveling back and forth to D.C. for the Hobson trial. So then how did she end up in Brooklyn representing asylum seekers?
Anne explained to me that the government appealed the Hobson decision to the D.C. Circuit (in 1982), after which Anne began traveling to the New York City offices of the Center for Constitutional Rights, who served as her co-counsel on the appeal. And finding some time on her hands during the two-year pendency of that appeal allowed Anne to pursue her interest in helping those fleeing civil war in Central America, which was an issue very much in the news at the time. Although Anne found groups dedicated to the issue itself, she was less successful in locating organizations actually providing representation to immigrants from Central America.
Anne continued that INS was detaining Central Americans at that time in the Brooklyn Navy Yard.5 Anne learned that a local Catholic priest and nun, Father Bryan Karvelis and Sister Peggy Walsh, were visiting those detainees, sometimes paying the bond for their release; they even housed those who had nowhere to stay in the rectory of their Brooklyn church. And Sister Peggy had obtained accredited representative status, allowing her to represent individuals before the government.
In Anne’s words, after litigating against the FBI in Hobson, she naively thought that by comparison, dealing with INS “would be a piece of cake.” Between briefs in Hobson, Anne organized a group of pro bono lawyers to represent Central Americans in applying for asylum under the brand-new 1980 Refugee Act. Anne spent the first year working out of her car, after which Father Bryan offered her space in the Transfiguration Church on Hooper Street, where CALA remains located to this day.
Anne thus began CALA with no funding, paying a secretary herself, and working without a salary for about two years. In a wonderfully ironic twist, CALA’s first funding came from Anne’s attorney fees in Hobson, thus making the FBI CALA’s first major benefactor.
Interestingly, Anne explained that it took a few years before the newly created EOIR began to hear Central American cases in earnest; in the early 1980s, the federal government somehow believed that the problems in the region would be over in a year or two.
Once they did begin hearing Central American cases, the Immigration Judges of that time denied virtually all of their asylum claims, generally doing so by incorrectly classifying the feared harm as “random violence.” In spite of the new asylum law intended to make adjudications fairer and free of political influence, it took years before Anne won her first asylum case.
And yet Anne persevered, building a model program and recruiting and mentoring outstanding lawyers. Anne also challenged EOIR’s misguided decisions and policies in the federal courts.
I want to make it clear that I had not included this next anecdote in my initial draft; it is being added at Anne’s own request. But while fighting to prevent the deportation of factory workers illegally arrested in a workplace raid, a March 1988 conference before U.S. District Court Judge Mark A. Constantino apparently became quite heated, resulting in the judge holding Anne in criminal contempt of court. That order was overturned by the Second Circuit in Matter of Pilsbury.6 The Second Circuit decision contained the following quote directed at Anne by Judge Constantino:
You go practice your shabby law somewheres [sic] else. Don’t you dare practice it in the Eastern District. You no longer will be permitted to practice in any part of this court. You will not be able to practice in this court or the immigration service. This court will see to it.7
Judge Constantino’s words turned out to be about as accurate as the Department of Justice’s belief that the turmoil in Central America would settle down after a few months. Some thirty-five years later, Anne’s impact on asylum case law has been nothing less than remarkable.
In 1994, in the case of Osorio v. INS,8 Anne prevailed in challenging the BIA’s determination that a labor union leader’s fear of persecution in Guatemala was not on account of his political opinion because, as a labor union leader, his point of dispute with the Guatemalan government was economic, not political.
In reversing the BIA’s conclusion, the Second Circuit quoted a statement made by Anne at oral argument, which became one of the most famous lines in asylum law history: that according to the BIA’s view, the Nobel Prize winning Soviet novelist and renowned dissident “Aleksandr Solzhenitsyn would not have been eligible for political asylum because his dispute with the former Soviet Union is properly characterized as a literary, rather than a political, dispute.”9
The court agreed with Anne that “Regardless of whether their dispute might have been characterized as a literary dispute, it might also have been properly characterized as a political dispute.”10 The Osorio decision remains extremely relevant today for its expansive view of what constitutes “political opinion” for asylum purposes, and for recognizing that nexus can be satisfied where the persecution is on account of mixed motives, a concept later codified by Congress.
A month earlier, in the case of Sotelo-Aquije v. Slattery,11 Anne had won a Second Circuit victory for a community leader from Peru who was denied asylum by the BIA in spite of being at risk of violence for speaking out against the Shining Path.
Also in 1994, Anne prevailed before the Ninth Circuit in a case called Campos v. Nail,12 challenging an Immigration Judge’s pattern or practice of denying all motions for change of venue filed by Salvadoran and Guatemalan asylum seekers who had not established a U.S. address prior to their arrest by the INS. In applying this policy without consideration of the individual’s circumstances, the IJ forced respondents who had long settled thousands of miles away to return at no small expense to Arizona for their hearings, or face an in absentia deportation order if unable to do so. The Ninth Circuit agreed with Anne that the policy violated the petitioners’ “statutory and regulatory rights to be assured a reasonable opportunity to attend their deportation hearings and to present evidence on their own behalf,” which “in turn interfered with the plaintiffs’ statutory and regulatory rights to apply for asylum and to obtain representation by counsel at no expense to the government.”13
Anne later won two cases before the Second Circuit creating important protections for asylum seekers in establishing their credibility before Immigration Judges. The precedent decisions in Alvarado-Carillo v. INS,14 and Secaida-Rosales v. INS15 rejected the application of an inappropriate standard relying on speculation or conjecture in rejecting an asylum applicant’s credibility, and required that such determinations be based on facts material to the claim. However, in noting how difficult keeping such gains can be, Anne pointed to the fact that both of these decisions were specifically cited with disapproval by Congress in its subsequent amendments contained in the 2005 REAL ID Act giving Immigration Judge greater leeway to deny asylum based on credibility or corroboration.
In 2006, Anne won an important case recognizing that a different standard applies when determining persecution to children. In Jorge-Tzoc v. Gonzales,16 the Second Circuit held that harm that had not been found to rise to the level of persecution to an adult “could well constitute persecution to a small child totally dependent on his family and community.” The court also cited INS’s asylum guidelines for children recognizing that “The harm a child fears or has suffered, however, may be relatively less than that of an adult and still qualify as persecution.”17
I’ve just mentioned some of the highlights from Anne’s career. From her office inside the Transfiguration Church, the entity Anne founded has assisted thousands of immigrants over the years. And CALA has very much remained focused on the community it serves; as Anne says, that is very much by choice. Among those serving on the organization’s Board of Directors are early clients of CALA, along with former staff.
The community connection is not limited to people. The CALA website lists among its staff, photo and all, “Oscar Gerardi Caceres the Cat,” an actual cat rescued by Anne (as opposed to an attorney with a cat filter), whose responsibilities are listed as “greeting clients, inspecting files, and prowling the office as our security guard.” It must be pointed out that this whimsical entry also carries a far more serious meaning, as the office cat has been named to honor the memory of three fallen leaders of the decades-long violence in Central America: Msgr. Oscar Romero (killed in 1980 in El Salvador), Berta Caceres, an environmental activist and indigenous leader killed in Honduras in 2016, and Bishop Juan Gerardi, killed in Guatemala in 1998 right after releasing the church’s devastating truth commission report on military atrocities.
Over the years, I have left every conversation with Anne having learned something important. Anne has a casual, often direct way of speaking; her words can be simultaneously remarkably simple and deeply profound.
I offer as an example this quote of hers from the same 2016 New Yorker article quoted above:
“I never expected it to take so long for our government to wake up to what was happening in Central America, and to stop funding militaries and wars, and stop blaming immigrants for trying to save their own lives….Thirty years later, I’m no longer so optimistic, I don’t expect people here to learn from history anymore. Of course, you never stop hoping they will, when the lessons are so obvious.”
In 2006, the block of Marcy Avenue on which the Transfiguration Church sits was named “Msgr. Bryan J. Karvelis Way.” I found online remarks made by City Council Member Diana Reyna during the meeting at which the naming was voted upon. Those remarks included the following:
Brooklyn parishes, like their neighborhoods, have gone through a lot of changes over the years. But one thing remains constant: in a Diocese of Immigrants, they continue to reach out to the latest newcomers, and make a home for them. Transfiguration parish is a superb example of this, and today is a good day to celebrate its history.
In paying tribute to Father Bryan, those remarks are no doubt also a tribute to the work of Anne and CALA over the past 40 years.
Please join me in thanking Anne Pilsbury profoundly, and wishing her all of the best her future pursuits.
Hobson v. Wilson, 556 F. Supp. 1157, 1163 (D.D.C. 1982).
Just to give out-of-town readers a sense of change over Anne’s career, the Brooklyn Navy Yard presently includes the largest movie studio outside of Hollywood; a large number of innovative tech start-ups, and a Wegman’s Supermarket.
866 F.2d 22 (2d Cir. 1989).
Id. at 22.
18 F.3d 1017 (2d Cir. 1994).
Id. at 1028-29.
Id. at 1029.
17 F.3d 33 (2d Cir. 1994).
43 F.3d 1285 (9th Cir. 1994).
Id. at 1291.
251 F.3d 44 (2d Cir. 2001).
331 F.3d 297 (2d Cir. 2003).
435 F.3d 146 (2d Cir. 2006).
Id. at 150.
Copyright 2023 Jeffrey S. Chase. All rights reserved. Republished by permission.
*********************************
Congratulations, Anne, on an amazing career — one that continues on in a different role! You are what real leadership and courage are all about!
Building a better America, “case by case, person by person.” I used to say that to folks in court during my days on the bench. It was a “team effort” that included everyone in the courtroom.
Also, thanks to Jeffrey for such a moving and elegantly written portrait of a real American patriot. Giving thanks and recognizing those who have “paved the way” and supported our common values and ideals is an oft-overlooked value in and of itself.
The Biden Administration and Dems generally are notoriously bad in this area. That’s particularly and painfully evident when it comes to those who “held the line” on our Constitution, democracy, and human rights — at a time when many of those leaders and politicos who would benefit were nowhere to be found “in the trenches” of defending and promoting social justice in the face of the Trump/GOP onslaught.
This is my favorite quote from Jeffrey’s profile of Anne:
“I never expected it to take so long for our government to wake up to what was happening in Central America, and to stop funding militaries and wars, and stop blaming immigrants for trying to save their own lives….Thirty years later, I’m no longer so optimistic, I don’t expect people here to learn from history anymore. Of course, you never stop hoping they will, when the lessons are so obvious.”
Clearly, Biden, Harris, Mayorkas, Garland, a number of Dem politicos, Federal Judges at all levels, and many members of the so-called “mainstream media” neither learned nor heeded the obvious lessons of history. They also ignored the law in their disgraceful “rush to reject rather than protect!”
They keep “blaming the victims” for saving their own lives, ignoring our nation’s failure to live up to our humanitarian commitments, and violating our statutes and Constitutional guarantees of the right to apply for asylum and receive a fair adjudication of claims. It’s as if World War II, Hitler, the Holocaust, and its aftermath have been “written out” of our history — mainly by the GOP but also disturbingly by some Democrats and members of the Biden Administration.
Also, many congratulations to “rising NDPA superstar” Heather Axford on her appointment as the new Director of CALA! Heather has already “creamed” the DOJ in the notable case of Hernandez-Chacon v. Barr. See, e.g., https://wp.me/p8eeJm-52n. That case is basically a compendium of why EOIR is failing, both legally and operationally.
Heather Axford Director Central American Legal Assistance Brooklyn, NY
Yet, disgracefully, rather than “tapping into” the expertise and organizational talents of Heather, Anne, and their NDPA colleagues, Garland and his team are presiding over the “death spiral” of EOIR — endangering our entire U.S. justice system and threatening and degrading human lives!
I’m proud to say that Heather “got her start” practicing before the “Legacy” Arlington Immigration Court with the Law Offices of Alan M. Parra following her graduation from UVA Law! I know that Heather will carry on and build upon Anne’s humanitarian legal legacy and leadership example at CALA!
This is an interview with Rev. Craig B. Mousin, an Adjunct Faculty member of DePaul University’s College of Law, Refugee and Forced Migration Studies Program, and the Grace School of Applied Diplomacy. The podcast critiques Department of Homeland Security Secretary Mayorkas’ recent NPR interview for what the interview omits in explaining 2023 asylum policies.
ACTION STEP
Imagine you are an asylum-seeker who has left your homeland. Listen to the interview with Secretary Mayorkas and consider its impact as you. Then write to the White House and Secretary Mayorkas and urge the Biden administration to follow the procedures and procedural protections of the Refugee Act of 1980: https://www.npr.org/people/4080709/steve-inskeep
We welcome your inquiries or suggestions for future podcasts. If you would like to ask more questions about our podcasts or comment, email us at: mission.depaul@gmail.com
This is an interview with Rev. Craig B. Mousin, an Adjunct Faculty member of DePaul University’s College of Law, Refugee and Forced Migration Studies Program, and the Grace School of Applied Diplomacy. The podcast critiques Department of Homeland Security Secretary Mayorkas’ recent NPR interview for what the interview omits in explaining 2023 asylum policies.
ACTION STEP
Imagine you are an asylum-seeker who has left your homeland. Listen to the interview with Secretary Mayorkas and consider its impact as you. Then write to the White House and Secretary Mayorkas and urge the Biden administration to follow the procedures and procedural protections of the Refugee Act of 1980: https://www.npr.org/people/4080709/steve-inskeep
We welcome your inquiries or suggestions for future podcasts. If you would like to ask more questions about our podcasts or comment, email us at: mission.depaul@gmail.com
Thanks for speaking out, Craig! Mayorkas’s interview was a shocking mix of intellectual dishonesty, insincerity, and misdirection worthy of a Trump Administration official. And, as Craig points out several times, the interviewer didn’t ask the right questions either.
Let’s understand what the Biden Administration’s arbitrary, ad hoc “parole program” that has been substituted for the Refugee Act of 1980 (“the law”), as amended, really does: 1) favors those who don’t necessarily meet the “refugee” definition (even if properly interpreted), but who have individual sponsors, over refugees; or 2) forces those who do meet the refugee definition into an inferior “parole status” that denies them the statutory path to a green card and eventual citizenship and other benefits that legal “refugee” or “asylum” status entails, or 3) a combination of 1) and 2).
Sound like a good idea? Of course not! It’s a prescription for a legal, humanitarian, and moral disaster!
Getting the USG to follow the law shouldn’t be this difficult. But, it is, because of the refusal of the Biden Administration to heed the advice of experts who not only know the law, but understand the border and the corrosive effect and real human consequences of unlawfully abandoning the statutory framework established by the Refugee Act of 1980.
The Maine Council of Churches and The BTS Center are hosting an online reading of the “Letter from Birmingham Jail” at 12:15 p.m. on Jan. 16.
The event is free and open to the public. Those who register to attend are invited to donate to the Maine Initiatives Outdoor Equity Fund, which will make grants to organizations led by people of color that work to improve outdoor equity and access to nature-based learning. More information about the fund is available at maineinitiatives.org.
Those interested in attending can register at thebtscenter.org/committed-to-listen-mlk-day-2023. The reading will also be streamed on the Facebook pages for the Maine Council of Churches and The BTS Center.
On April 16, 1963, the Rev. Dr. Martin Luther King Jr. wrote a letter.
He had been arrested four days earlier for disobeying a court order that prohibited protests in Birmingham, Alabama. From his jail cell, he wrote to eight white religious leaders who had publicly condemned ongoing civil rights demonstrations. He decried the silence of white moderates and argued that racial violence demanded a more urgent response than those clergymen had counseled.
Sixty years have passed, but that message still rings true for the Rev. Allen Ewing-Merrill. He is the executive director of The BTS Center, a Maine nonprofit that offers theological programs. He rereads the letter every year on Martin Luther King Jr. Day and reflects on its call to be more courageous than cautious.
“We like to think that racism is that awful thing that other people do, the blatant white supremacist brand of violence,” he said. “But in the letter, Dr. King really pulls out the nuance of that and reminds us that racism is the violence of silence.”
This year, the Maine Council of Churches and The BTS Center chose the Letter from Birmingham Jail for an online reading to mark the holiday. King’s words will be read by eight people from Maine’s faith and social justice communities. For the Portland Press Herald/Maine Sunday Telegram, four of the readers reflected on passages they will recite during Monday’s event and the letter’s relevance to the modern world. Those passages and the readers’ comments are shown here.
I had a few highlights roll in after this was first posted, so here is an updated thread regarding the wonderful things that immigration law professors around the country had to celebrate in 2022.
Eugenio Mollo, Jr. joined Toledo as a Clinical Assistant Professor of Law to launch and direct the school’s Immigrant Justice Clinic.
Aadhithi Padmanabhan (Maryland) started her first full-time job in academia as an Assistant Professor of Law directing the new Federal Appellate Immigration Clinic.
Carrie Rosenbaum joined Chapman as a Visiting Assistant Professor in Fall 2022.
Tania N. Valdez started her first tenure-track job as an Associate Professor of Law at The George Washington University Law School.
Promotions and Awards:
Lauren R. Aronson (Illinois) was promoted to Full Clinical Professor in August and granted Clinical Tenure.
Jason Cade (Georgia) was promoted to full professor. He also received the University of Georgia’s Engaged Scholar Award.
Jennifer Chacón (Stanford) received the Bruce Tyson Mitchell professorship.
Ming Hsu Chen (Hastings) was named the Harry & Lillian Hastings Research Chair and Founding Director of the Center for Race, Immigration, Citizenship, and Equality (RICE).
Shane Ellison (Duke) was promoted to Clinical Professor of Law (Teaching).
Kate Evans (Duke) was awarded clinical tenure in 2022.
Laila Hlass (Tulane) was promoted to Clinical Professor of Law. She was also awarded the 2022 NIPNLG Elisabeth S. “Lisa” Brodyaga Award.
Kevin Johnson (Davis) was named the first recipient of the Michael A. Olivas Award for Outstanding Leadership in Diversity and Mentoring in the Legal Academy. We look forward to the formal celebration in 2023.
Kit Johnson (Oklahoma) received the Thomas P. Hester Presidential Professorship.
Gabriela Kahrl (Maryland) was promoted from Associate Director to Co-Director of the Chacón Center for Immigrant Justice.
Jennifer Lee (Temple) was approved for tenure by a vote of the law school faculty — their first tenured clinician! We look forward to celebrating the formal approval from central campus in 2023.
Mauricio E. Noroña (Cardozo) became a VAP this year after a stint as a teaching fellow in the Cardozo Immigration Justice Clinic.
Shalini Bhargava Ray (Alabama) was approved for tenure by a vote of the law school faculty. We look forward to celebrating the formal approval from central campus in 2023.
Rachel Rosenbloom (Northeastern) is a fellow with Northeastern’s Center for Law, Equity and Race (CLEAR) while she is on sabbatical this year.
Scott Titshaw (Mercer) was promoted in 2022 from Associate Professor to Professor.
Administrative Gigs:
Hemanth Gundavaram (Northeastern) became Associate Dean of Experiential Education and Director of Clinical Programs; he continues to also serve as Director of the Immigrant Justice Clinic.
Anita Maddali (Northern Illinois) became the Associate Dean for Student Affairs in August 2022, stepping down from the Director of Clinics role she’d been in since 2011.
Rachel Rosenbloom (Northeastern) finished her term as Associate Dean for Experiential Education.
Other Exciting News:
Kate Evans (Duke) secured an additional $2.5 million grant to support Duke’s Immigrant Rights Clinic and the activities of the Duke Immigrant & Refugee Project.
Jill Family (Widener) became Chair of the ABA Administrative Law section.
Dina Haynes (New England) started a non-profit–Refugeeprojects.org–through which she has assisted many refugees, asylum seekers, pro bono attorneys and governments. She coordinates 800 attorneys assisting Afghans with evacuation, transit and Immigration status.
Laila Hlass (Tulane), Sarah Sherman-Stokes (Boston U), and Mary Yanik (Tulane) received a 2022 Research & Policy Grant from Boston University’s Center for Antiracist Research.
Geoffrey Hoffman (formerly Houston) became an immigration judge!
NEW BABIES (Squee!)
Joe Landau (Fordham) welcomed Max Fitzgerald Landau on 1/1/22 at 4:49am. 6 lbs, 2 oz of greatness.
Lauren R. Aronson (Illinois) welcomed Max Reuben Aronson-Orr on 12/15/2022 at 8:00pm. 8 lbs., 12 oz. of joy.
Congratulations to all!
-KitJ
********************
“Super-kudos” to all! 🎖🏆😎 Thanks to Kit (the “Amazing KitJ @ ImmProf”) for putting this together and many congrats on her receipt of the Thomas P. Hester Presidential Professorship @ Oklahoma Law. Couldn’t have gone to a more deserving and consequential role model for the NDPA!
As one of my NDPA colleagues recently observed about the work of these NDPA “practical scholars:”
[T]he law schools today have incredible clinical programs that encourage and develop critical thinking and creative problem-solving; they send so many great new members of the NDPA out into the world.
Those familiar with what’s really happening in American justice these days also had this cogent observation:
EOIR does exactly the opposite; it kills critical or original thought, and rewards the bland “go along to get along” types. And the training is horrible, and actually refuses to include anyone from outside – even former IJs and Board Members. So the good people either quit, linger in the shadows, or are broken over time.
It’s very clear that a better Dem Attorney General would have “tapped in” to the practical problem solving skills, guts, integrity, and intellectual firepower of those on Kit’s honor roll and many others like them. I note with great pleasure and immense gratitude that Honor Roll member, Judge Geoffrey Hoffman, formerly of Houston Law, did “make the leap” to the Immigration Bench this year. But we need more, many more, like Judge Hoffman at all levels of EOIR to “rescue the sinking ship.”
The talent to change EOIR from a “CINO” to a “model court system” is out here! What’s sorely missing is dynamic leadership and consistent direction from the Biden Administration and Dems in Congress.
Immigrants have legal rights. Immigration isn’t going away in the future no matter how much Dems try to “wish it below the radar screen” and the GOP tries to “demonize it to death!”
The disgraceful failure of both parties to enforce legal rights of immigrants, stand up for human rights, and take realistic approaches to human migration is damaging our democracy and diminishing our national strength.
I advocate NDPA members “taking over” the Immigration Judiciary and fixing things from “the bottom up.” It won’t happen overnight; but waiting for real leadership from Dems or change from the “top” is like “waiting for Godot” — Not going to happen! See, e.g., https://wp.me/p8eeJm-8hm.
And, you’d be surprised at the useful insights and knowledge that can be gained from getting “inside EOIR” — an intentionally opaque, “closed” organization if there ever was one. That’s why courts often pay attention to what we “Former Immigration Judges and Board Members in the Round Table” say in our amicus briefs. We’re they only ones speaking truth about what really happens in Immigration Court “behind the bench.” All the “official versions” are “highly sanitized,” “manipulated,” or sometime just “unadulterated BS!”
Don’t leave “judging in America” to the Federalist Society, the Heritage Foundation, and inept Dem politicos who are too tone-deaf, insecure, and/or scared to do the right thing for YOUR future and the future of our nation.
Storm the tower! 🗼Take back justice at the retail level of our system!Better judges for a better America!
”Storm the Tower!” — EOIR HQ, Falls Church, VA (a/k/a “The Tower of Babel”) By Pieter Bruegel The Elder Public Domain
Apparently, due process, fundamental fairness, and racial justice for all persons in the U.S., even those who happen to be non-citizens, weren’t part of A.G. Merrick Garland’s Harvard Law education. PHOTO: Wikipedia Commons
The esteemed Harvard Law Review does not publish much immigration scholarship. A student note on the immigration court system may be of interest to blog readers. The system long has been criticized and, last year, a bill was introduced in Congress that would have brought reform.
Courts in Name Only: Repairing America’s Immigration Adjudication System
By the Harvard Law Review
Noncitizens in the United States face innumerable obstacles, many of which have now become well known. But even the supposedly neutral court system in which noncitizens’ cases are adjudicated currently functions as an executive tool for removal. This Note argues that the current structure of the immigration adjudication system — and the resulting executive control over it — subjects Immigration Judges to a variety of conditions that, taken together, bias the entire system towards removal. It then surveys existing proposals for structural reform and proposes numerous possible intermediate reforms.
KJ
**********************
Key recommendation from HLR article:
While waiting for Congress to act, however, the executive branch has the authority to implement several crucial reforms that would allow for noncitizens to have their cases heard in fairer proceedings overseen by IJs with true, independent adjudicatory power.
Good News for Harvard Law: Some bright, unidentified, Harvard Law students can cut through the BS and clearly state achievable reforms that could and should have been implemented by the Biden Administration without legislation.
Bad News for Harvard Law: Prominent graduate and Law Review “alum” AG Merrick Garland (‘77), once a step away from a seat on the Supremes, doesn’t “get” it and, in fact, his poor leadership and mis-management are key parts of the problems at EOIR that threaten the stability and credibility of the entire U.S. justice system.
Note to HLR: Follow your own advice to “cut through the noise” and reform yourself. Lose the “historical BS,” move into the 21st century, show some intellectual integrity, and set a better example by clearly identifying and crediting the authorship of this and other student articles, whether by individual(s) or a team. See, e,g., Authorship: Giving Credit Where It’s Due,https://www.apa.org/pubs/journals/resources/publishing-tips/giving-credit
It’s not “rocket science!” 🚀 It’s just “Legal & Intellectual Ethics 101” (not to mention standard professional courtesy). As a former judge, albeit only one in the CINOs, I gave little weight to quotations and citations to anonymous or unidentified sources.
Don’t just complain about the awful mess @ EOIR! Get on the bench and do something about it! Public Domain
Excerpts:
Now, those of you who read my blog immigrationcourtside.com or have heard me speak before, or both, know that I am an outspoken critic of the last four Administrations’ gross mismanagement and misdirection of our Immigration Courts. So, you might well ask why I am here recruiting YOU to become part of a court system that I have consistently lampooned and characterized as dysfunctional, FUBAR, and badly in need of long-overdue reforms.
A better question might be why AG Garland, VP Harris, Deputy AG Lisa Monaco, and Associate AG Vanita Gupta AREN’T here today actively recruiting you to apply to become Immigration Judges in their system. It’s a hugely important court, perhaps the largest in the Federal Government, that cries out for excellence, practical immigration scholarship, and badly needs a much more diverse, representative, and expert judiciary to achieve equal justice for all in America.
The short answer is because I CARE, and THEY DON’T! I have a vision of a model court system unswervingly dedicated to due process, fundamental fairness, great practical scholarship, best judicial practices, fantastic public service, and equal justice for all! THEY DON’T!
After two largely fruitiness and frustrating years of the Biden Administration’s bungling immigration and social justice mis-steps, it’s painfully clear that the needed management, personnel, operational, and expertise reforms needed at EOIR AREN’T going to come from above.
But, if you have been in Immigration Court and thought “Hey, there is a better, more informed, more efficient, more just way to run this railroad, why isn’t it happening,” THIS is YOUR chance to get on board and change the direction of EOIR and the millions of lives and livelihoods that depend on it! See that the next generations of dedicated immigration lawyers won’t face some of the unnecessary and counterproductive roadblocks and bad experiences that you have had to deal with in seeking justice for your clients before EOIR!
. . . .
Not surprisingly, asylum grant rates dropped precipitously during the Trump years. Although they have rebounded some under Biden, they still remain below the 2012 levels. It’s certainly not that conditions have substantially “improved” in major “sending countries.” If anything, conditions are worse in most of those countries than in the years preceding 2012.
So, if the law hasn’t changed substantially and country conditions haven’t improved, what has caused regression in asylum grant rates at EOIR? It comes down to poor judging, accompanied by inadequate training, too much emphasis on “churning the numbers over quality and correctness,” and a BIA that really doesn’t believe much in asylum law and lacks the expertise and commitment to consistently set and apply favorable precedents and end disgraceful inconsistencies and “asylum free zones” that continue to exist.
Some of the most disgraceful, intentional asylum misinterpretations by Sessions and Barr now have been reversed by Garland. Unfortunately, he failed to follow-up to insure that the correct standards are actually applied, particularly to recurring circumstances. It’s one of many reasons that the Biden Administration struggles to re-establish a fair and efficient legal asylum system at the Southern Border — notwithstanding having two years to address the problems!
But, it doesn’t have to be this way! Recently, as I noted earlier, a number of notable “practical scholar experts” have been appointed to the Immigration Judiciary. When such well-qualified jurists reach a “critical mass” in the expanding EOIR, systemic changes and improvements in practices and results will happen.
The “dialogue” among Immigration Judges from government backgrounds and those from the private/NGO sector will improve. Lives will be saved. Life-threatening inconsistencies and wasteful litigation to correct basic mistakes at all levels of EOIR will diminish. The EOIR system will resume movement toward the former noble, but now long abandoned, vision of “through teamwork and innovation, being the world’s best administrative tribunals, guaranteeing fairness and due process for all!”
. . . .
So, warriors of the NDPA, check out USA Jobs, make those applications for EOIR judgeships! Storm the tower from below! Make a difference in the lives of others, stand up for due process and fundamental fairness for all persons, and help save our democracy! Become better judges for a better America! If not YOU, then who?
You can watch my full webinar here:
AILA Webinars shared the following meeting recording with you.
Topic: How to become an EOIR judge
Date: Jan 11, 2023 11:42 AM Eastern Time (US and Canada)
Genevra W. Alberti, Esq. The Clinic at Sharma-Crawford Attorneys at Law Kansas City, Mo. PHOTO: The Clinic
Dear Colleagues,
The Clinic at Sharma-Crawford Attorneys at Law – a nonprofit removal defense organization in Kansas City, Missouri – is hosting its sixth annual Immigration Court Trial Advocacy College from Thursday, May 4, 2023 to Saturday, May 6, 2023 in the Kansas City metro area.
This is a unique, hands-on, one-on-one, training experience designed to make you confident in immigration court, and the program has something for beginners as well as experienced removal defense litigators. Under the guidance of seasoned trial attorneys from all over the country (myself included) and using a real case, real witnesses, and real courtrooms, participants will learn fundamental trial skills while preparing a cancellation of removal case for a mock trial. The complete conference schedule and faculty bios are available on The Clinic’s website here.
Days 1 and 2 of the program will focus on helping attendees master the fundamentals of trial practice and prepare a cancellation of removal case and witness for trial. For many of the sessions, attendees will be broken up into smaller groups, each with its own set of faculty members to provide one-on-one input. Each attendee will be assigned a role – either the respondent’s attorney, or the DHS attorney – and will have a volunteer “witness” to prep. On day 3, mock trials will be held in real courtrooms with faculty serving as the judges.
Tickets are available now, and you can register on The Clinic’s website here. There is a discounted rate for attorneys who are employed by a nonprofit. Price includes breakfast, lunch, coffee and refreshments throughout, along with a happy hour on Thursday. **VERY IMPORTANT: It is imperative that you commit to attending all 3 days of the conference, so please do not register unless you can do so.** If you have questions about this, please let me know. Proof of COVID-19 vaccination is also required.
Space is limited, so be sure to get your tickets soon. We hope to see you there!
I’ll be there again, along with my Round Table colleagues Judge Lory Rosenberg, Judge Sue Roy, and a host of other great faculty. See you in Kansas City in May!
“Going to Kansas City, Kansas City here I come . . . .”
This is what we immigration lawyers have to deal with. A court notice for a case mailed 12/27/2022 telling me that the trial scheduled for 5/18/2021 has been cancelled.
“Late Notice”
***************************
Notably the one thing this incredibly belated notice DOESN’T do: Provide an actual date and time for the “rescheduled” hearing! That will probably come only after an in absentia has been issued!
A great public research project: What are the backlog and fiscal consequences of DHS’s & EOIR’s joint intentional failure to comply with statutory notice requirements in Non-LPR cancellation cases? (a/k/a “The Pereira Debacle” — for which there has been absolutely NO official accountability).
NO MORE Attorneys General who lack actual experience representing individuals before EOIR!
One of America’s largest, most important, most backlogged, and completely FUBAR Federal “Court” Systems would likely run much better if the person in charge (U.S. Attorney General) had actually been subjected to the indignities and incredible stresses of attempting to get justice for a real-life person at EOIR! Enough of the “What Me Worry” approach of Garland and other tone-deaf, “above the fray” Dem politicos! PHOTO: Wikipedia Commons.
To paraphrase Forrest Gump, Immigration Court is like a box of chocolates; you never know what you’re going to get. Also, some of the chocolate is poison.
For many applicants in Immigration Court, the most important factor in determining success is not the person’s story or the evidence or the quality of their lawyer. It is the judge who is randomly assigned to the case. According to TRAC Immigration, a non-profit that tracks asylum approval rates in Immigration Court, Immigration Judge (“IJ”) approval rates vary widely. For the period 2017 to 2022, asylum approval rates ranged from 0% (a judge in Houston) to 99% (a judge in San Francisco). Of the 635 IJs listed on the TRAC web page, 125 granted asylum in less than 10% of their cases. At the other extreme, nine IJs granted asylum more than 90% of the time.
Based solely on these numbers, there is a 20% chance (1 in 5) that your IJ denies at least 90% of the asylum cases that he adjudicates. That’s pretty frightening. But there is much more to the story, which we will explore below.
If Santa were an IJ, it wouldn’t matter whether you were naughty or nice – he would deport you Ho-Ho-Home.
First, the raw TRAC data does not distinguish between represented and unrepresented applicants, and having a lawyer generally makes a difference. Overall, represented applicants were denied asylum in 64% of cases. Unrepresented applicants were denied asylum more frequently–in 83% of cases. So if your IJ sees many cases where the applicant does not have an attorney, her overall denial rate is likely to be higher than if most of her cases have lawyers. To find this information, go to the TRAC website, click on the judge’s name, and scroll almost to the bottom of the IJ’s individual web page. You will see the percentage of cases before that IJ where the asylum applicant had an attorney. If you see that your judge presides over many unrepresented cases, it probably means that her overall denial rate is higher than would be expected if that IJ saw more cases where the applicant had a lawyer. What does this mean? Basically, if you are before such a judge, and you have an attorney, your odds of success are probably better than the judge’s overall denial rate would suggest. Conversely, if you do not have an attorney, your odds of receiving asylum are probably lower than the judge’s overall denial rate would suggest.
A second big factor that is relevant to each IJ’s denial rate is country of origin. People from certain countries are more likely to be denied, and so if your judge sees many people from those countries, his overall denial rate will be pushed up. You can see country-of-origin information if you click on your judge’s name and scroll to the very bottom of his web page. The countries that have had the highest denial rates over the past two decades are: El Salvador, Guatemala, Haiti, Honduras, and Mexico. And so if your IJ has many cases from these countries, his overall denial rate will likely be higher. Meaning that if you are not from one of these countries, your odds of winning asylum are probably better than what your judge’s overall denial rate would suggest.
A third important factor in examining IJ approval rates is the distinction between detained and non-detained asylum applicants. Certain judges have “detained dockets,” meaning that they rule on cases where the applicants are detained. Such people have a much more difficult time winning asylum: Some are barred from asylum due to criminal history or the one-year asylum bar. Others just have a more difficult time preparing their cases because they cannot easily gather evidence while detained. For these reasons, judges who decide many detained cases will generally have a lower overall asylum approval rate. Unfortunately, the TRAC data does not distinguish between detained and non-detained cases, and it is not always easy to know whether an IJ’s record includes detained cases (EOIR has a website that gives some details about each court, including whether that court is located at a detention facility).
While the TRAC data is not perfect (and there is no data on the newest IJs), it is the best source of information we have on Immigration Judge grant rates. Do keep in mind that the numbers only tell part of the story, and it is important to consider the above factors, as well as any other information you can gather from immigration lawyers and asylum applicants about your IJ.
What if you’ve done your research and have concluded that your judge is one of those who denies almost every case she sees? There are a few options.
One: You can go forward with the case and hope for the best. Sometimes a strong case can overcome a judge’s tendency to deny, and after all, even the worst IJs grant cases now and again (except for the 0% guy in Houston).
Two: You can ask for prosecutorial discretion and try to get the case dismissed. Except for cases where the noncitizen has a criminal or security issue, DHS (the prosecutor) is often willing to dismiss. Assuming you can get the case dismissed, you can then re-file for asylum at the Asylum Office (yes, this is a ridiculous waste of resources, but people are now doing it all the time). If you pursue this option, make sure to read the Special Instructions for the form I-589, as you will most likely be required to file your form at the Asylum Vetting Center.
Third: You can move. If you move to a new state (or at least a new jurisdiction within the same state), you can ask the IJ to move your case. Typically, you file a Motion to Change Venue. If the judge agrees, your case will be moved to a different court where you will hopefully land on a better IJ. Judges (and DHS attorneys) do not always agree to allow you change venue, especially if you are close to the date of your Individual Hearing or if you have previously changed venue in the past. And so if you plan to move your case, the sooner you make the move, the better.
Most Immigration Judges will do their best to evaluate the evidence and reach a fair decision. But some IJs seem intent on denying no matter what, and these judges are best avoided, if at all possible. Thanks to TRAC, you can get an idea about whether your IJ is one of these “deniers,” and this will help you decide how best to proceed in your case.
**********************
So, at roughly the “halfway point” of the Biden Administration, one of the “best minds in the business,” Jason Dzubow, is expending his awesome brain-power advising lawyers on “strategies” for avoiding unfair “any reason to deny” Immigration Judges who inhabit about one in five Immigration Courtrooms under Garland!In other words, what steps you have to take to get a “fair hearing” on asylum from an agency whose sole function is SUPPOSED to be providing said “fair hearings” to everyone! See something wrong here?
One of these “strategies:” Request the ICE prosecutor’s agreement to dismissal of the (probably already long-pending) case in Immigration Court and “refile” before the Asylum Office (which also is hugely backlogged). Jason admits “that this is a ridiculous waste of resources, but people are now doing it all the time.”
Wonder why we have huge asylum backlogs? Despite what Trump, Biden, and nativist GOP politicos would have you believe, it has less do with those vainly seeking legal justice at our borders and LOTS to do with inept decisions, dumb actions (some of them downright malicious), and inactions by Congress and Administrations of both parties in the 21st Century.
Garland’s job was to fix this broken, unfair, wasteful, and astoundingly inefficient system. That isn’t “rocket science.” But, it requires dynamic, progressive, due process committed new leadership at EOIR and a major “shakeup” among Immigration Judges, at both the trial and appellate levels, so that those who are “looking for any reason to deny” either are get different jobs or start treating asylum seekers fairly and humanely byfollowing Cardoza, Mogharrabi, Kasinga, and 8 CFR!
Garland hasn’t gotten the job done! And, the applicants and lawyers whose lives and livelihoods are tied up in his beyond dysfunctional system are the ones paying the price for his failure! Also taxpayers see their dollars and resources being poured down the drain at EOIR!
But, they aren’t Garland’s only victims! EOIR’s dysfunction and its failure to provide consistently correct, generous, positive guidance on how to efficiently grant asylum, particularly at the border, drives a whole other series of failures, illegalities, wastefulness, and mis-steps by the Administration.
Much of the nonsense and legally inappropriate gimmicks being rolled out by President Biden himself at the border this week is an insane attempt to avert the dysfunction at EOIR and USCIS by punishing not the inept politicos and bureaucrats responsible (nor political grandstanding GOP demagogues like Abbott & DeSantis), but the victims!
Improperly taking away the legal right to seek asylum at the border and creating more “jury-rigged” faux refugee programs by misusing parole are NOT the answer! Whatever their short-term impact is, in the long run they will fail just like all the other “deterrents” and “asylum work-arounds” unsuccessfully tried by Administrations of both parties over the past two decades.
Indeed, for those of us who have been around immigration law and policy for the last half-century, it bears an uncomfortable resemblance to the “ad hoc, highly politicized, unsatisfactory” approach to refugee situations that was superseded by enactment of the Refugee Act of 1980. How little we learn from the past!
What HASN’T been tried is the obvious:Recognizing and vigorously defending the right to asylum and building a fair and efficient adjudication system run and staffed by human rights experts under the existing authority provided by the Refugee Act of 1980, as amended. Why not build a fair, functional, generous legal asylum system under that Act that would encourage applicants to use it and reward those qualified for doing so with timely legal status (including, of course, authorization to work)?
Existing law already provides for “expedited removal,” without full Immigration Court hearings, of those who fail to establish to a trained USCIS Asylum Officer that they have a “credible fear” of persecution! Draconian as that measure is, and it undoubtedly has resulted in mistakes and injustices to asylum seekers, both the Trump and Biden Administrations have gone even further by wrongfully depriving those fleeing persecution of even this limited statutory right to present their claim to an Asylum Officer! To matters worse, both politicos and so-called “mainstream” media have “normalized” this disgraceful and harmful scofflaw behavior by ignoring the pretextual, racist roots of the Title 42 charade!
In the meantime, given the near total lack of leadership, competence, and courage from above to “do the right thing” and bring the “rule of law” to life, I do have a strong suggestion for NDPA members courageously “fighting in the trenches.” Apply for upcoming Immigration Judge vacancies at EOIR in massive numbers, over and over, until the roadblocks are removed and justice prevails!
As the relative proportion of “expert practical scholars” on the Immigration Bench grows and the “deniers’ club cohort” shrinks, change will emerge “from below” at EOIR, lives will be saved by the thousands, and justice will finally be realized in a system that now tries to resist and twist it! Functionality and “good government” will eventually win out over today’s inexcusable, and preventable, mess!
President Biden’s seemingly chaotic policy toward asylum seekers at the U.S. border is no accident. It’s carefully crafted to minimize political fallout. The administration should keep it simple instead, by following the law and doing the right thing — admitting those who arrive at our borders seeking asylum.
Give voters a chance, Mr. President. The American people value decency. They don’t respect craven and calculated inconsistency.
This week, the Biden administration announced an expansion of a Trump-era policy to turn away individuals fleeing persecution who reach our borders. This began with a pretext of limiting the spread of COVID-19, using a public health law known as Title 42. Now it’s just a sop to people who oppose immigration.
In April 2022, the Biden administration stated its intent to end Title 42. Litigation delayed the termination, but in mid-November, a federal judge ruled the policy unlawful, and ordered it to end by Dec. 21. The Supreme Court has stayed that order until it hears arguments next month.
Now, in a head-spinning turn of events, Biden has announced the expansion of Title 42 to Haitians, Nicaraguans and Cubans — nationalities that had not previously been subject to summary expulsion at the border.
If this were not enough of a contradiction, the administration also plans to resurrect another Trump-era policy which Biden had previously denounced, the “transit ban.” This rule bars from asylum any migrants who do not apply for and receive a denial of asylum from the countries they pass through on their way to the U.S.
This “outsourcing” of our refugee obligations to countries of transit, which a federal court found unlawful when implemented by the Trump administration, is ludicrous on its face. The asylum seekers who arrive at our border pass through countries such as Honduras, El Salvador and Guatemala, with human rights conditions as dire as in the migrants’ nations of origin.
To date, the only country with which we legally have such an arrangement is Canada — which makes sense because it has a robust refugee protection system and an admirable human rights record. And even if there are other countries of transit, such as Costa Rica, that have a well-developed framework for the protection of refugees, and solid records on human rights, they are already taking in numbers of asylum seekers that far exceed their capacity.
. . . .
*******************
Read Karen’s full op-ed at the above link.
It’s simply appalling, not to mention disingenuous, for Biden to ignore the advice of experts like Karen, the founder and moving force behind the Center for Gender and Refugee Studies at U.C. Hastings Law. (Karen also argued the landmark Kasinga case before the BIA when I was Chair). Instead, disgracefully, he has turned human rights and immigration policies over to a bunch of spineless, scofflaw politicos and “go along to get along” bureaucrats.
He has multiplied the problem by following and adopting their highly politicized program of “carefully crafted chaos” — which both ignores the law and inflicts irreparable harm, including death, on legal asylum seekers! The “crime” of these victims of Biden’s tone-deafness? Seeking to exercise their legal rights under U.S. and international law to apply for asylum!
Biden and some Dems seem to have forgotten the nationwide, grass roots wave of support for admission of refugees in response to Trump’s despicable “Muslim ban!” As Karen points out, rather than “running from” immigration, refugees, and asylum as issues, Biden and other Dems should be embracing them as part of our heritage as a nation of immigrants and a source of strength and shared prosperity for our future! Refugees and asylees are a key component of our legal immigration system.
Making the necessary progressive, due process and fundamental fairness oriented, reforms to enable our nation to welcome those qualified in a timely, humane, and fair manner should be a top priority! As Karen cogently notes, “doing the right thing,” and doing it really well, “is good politics!”
Biden’s latest immigration nonsense will be attacked by litigators on both sides. Both the ACLU and Stephen Miller’s nativist legal group “America First Legal” have pledged to resist various parts of the new policies in court. The irony here is that Biden’s latest anti-asylum efforts incorporate much of the “Miller White Nationalist agenda” that Biden and other Dems campaigned (and fund-raised) against during the 2020 election!
Biden and his immigration advisors apparently have been overindulging in this stuff lately! It shows in their disturbingly poor performance on asylum, human rights, an “order at the border!”
Karen’s message is the same as mine. “It’s not rocket science!🚀 Migrants have a right to asylum.”🗽 Start with that straightforward truth and everything else falls into place!
Thanks for speaking out so forcefully, articulately, and truthfully, Karen, my friend!
