"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
We examine the record of one of the toughest immigration judges in the country, including the surprising way her decisions benefited transgender asylum-seekers. Then we follow one transgender woman who flees El Salvador for the United States to try to claim asylum.
Our final story takes us to Turkey, and focuses on a small but growing group of refugees seeking a new life: young Afghan women fleeing abuse, forced marriage and persecution in their homeland. Reporter Fariba Nawa tells the story of Hoor, who made the dangerous journey into Turkey alone, only to be assaulted by an Afghan man in Istanbul. Against all odds, Hoor sought justice for her abuser and ultimately prevailed.
Credits
Our first story about an immigration judge who ruled on hundreds of cases involving transgender asylum seekers was reported and produced by Patrick Michels and edited by Brett Myers.
Our second story about a transgender woman who fled El Salvador was reported by Alice Driver. It was produced by Casey Minor with help from Emily Harris and Amy Isackson and was edited by Brett Myers.
Our story about Afghan female migrants was reported and produced by Fariba Nawa and edited by Taki Telonidis.
Our production manager is Najib Aminy. Original score and sound design by Jim Briggs and Fernando Arruda, who had help from Kaitlin Benz and Katherine Rae Mondo.
The lack of sensitivity training and proper application of the legal standards for asylum that was allowed to go on for many years in this Immigration Courtroom is appalling;
The BIA, whose job is supposed be insuring that individuals’ Due Process rights are respected and asylum law is applied in a fair and impartial manner, failed to do its job;
The qualification of individuals for asylum based on gender classifications has been well established since Matter of Tobago-Alfonso, 20 I&N Dec. 819 (BIA 1990) was published (at the direction of then-Attorney General Janet Reno) in 1994;
LGBTQ cases were well-documented, credible, and routinely granted by the U.S Immigration Judges at the Arlington Immigration Court during my tenure there;
I don’t remember ever denying a transgender case — most were either stipulated or agreed upon by the DHS Office of Chief Counsel — yet EOIR failed to institutionalize those “best practices” that would have promoted justice, consistency, and efficiency;
Immigration Judges are bound to follow not only BIA precedents, but also the precedents by the U.S. Circuit Courts in the jurisdiction where they sit — that obviously was not happening here — a clear violation of both law and ethics;
You can see the difference when an Immigration Judge does listen, properly applies the law in the generous manner dictated by the Supreme Court in INS v. Cardoza-Fonseca and the BIA in Matter of Mogharrabi, and gives the respondent “the benefit of the doubt” as set forth in the U.N. Handbook on the Refugee Convention;
The difference in people’s lives and the benefits to the U.S. when judges properly apply asylum law to protect individuals, as intended, is obvious;
Those without lawyers and those held in long-term detention are being treated unfairly and not in accordance with Due Process;
This system needs reform so that it operates independently, impartially, and under the legal standards established by law and by Article III Circuit Courts;
Immigration Judges who are biased against asylum seekers must be uniformly reversed and “outed” by a real Appellate Tribunal, not the current “go along to get along” version of the BIA;
Judges who unwilling to threat asylum applicants and other foreign nationals fairly should not be reappointed to the bench in a competitive, merit-based process;
Trump’s recent “we don’t need no stinkin’ judges for asylum cases” rhetoric is as absurd as it is ignorant, unconstitutional, and damaging to both our precious justice system and vulnerable human beings who need and are legally entitled to our protection.
Many thanks to Lawrence University Scarff Professor of Government Jason Brozek for bringing this highly relevant podcast to my attention.
I am at Lawrence University (my alma mater) in Appleton, WI for two weeks as the Scarff Family Distinguished Visiting Professor. Jason and I currently are teaching a “mini-seminar” in Kasinga/FGM/Gender-Based Asylum in the Government Department at Lawrence. This podcast is directly relevant and “breathes life” into the issues we have been discussing with the wonderfully talented and engaged students in our class.
Last week, retired Immigration Judge Nathan “Nate” Gordon passed away. At his funeral, dozens of immigration attorneys, judges and others shared their stories of this wonderful man.
Judge Gordon changed many people’s lives in a very positive way.
I have a lot of stories about Judge Gordon.
Let me share one of them with you.
Judge Gordon – Background
Judge Gordon was born on Christmas Day in 1926 in New Jersey to Jewish immigrant parents from Eastern Europe. He served in the US Army during World War II and graduated from New York Law School some years later.
He was employed by the U.S. Immigration and Naturalization Service (INS) as an Attorney from 1962 to 1977. After that, he became an Immigration Judge, first in Newark, New Jersey, then in Los Angeles.
I first met Judge Gordon in the mid-1980s, after I had left the INS and entered private practice. The tremendous amount of compassion that he had for immigrants was truly impressive. It trumped all legal standards. If he believed that a person deserved to stay in the US, Judge Gordon would find a way to make it happen.
Honor Student Miguel Perez
I remember getting a phone call one day from Congressman Mervin Dymally’s office. It concerned a young man born in El Salvador. He had been brought over the U.S.-Mexican border by his mother when he was 14 years old in order to save him from the violence of the civil war which was raging in their native country. They were immediately arrested and taken into custody by the Border Patrol. Though they were later released on bail, the experience was so stressful for his mother that she died of a heart attack a few weeks later.
The young man, Miguel Perez, not knowing a single word of English, was placed under deportation proceedings. The process took years. Ultimately, his application for asylum was denied by an Immigration Judge. The Board of Immigration Appeals (BIA) affirmed the Judge’s decision.
By this time, Miguel had not only mastered the English language, he had become an honor student at a local university. In his spare time, he tutored underprivileged children in South Central Los Angeles. After learning of the BIA’s decision, he packed his bags and got ready to book a flight to El Salvador. However, his professors and friends, horrified by the thought of what might happen to him if he returned to El Salvador, urged him to speak with his local Congressman.
The Congressman’s office arranged to have Miguel meet with me. The next day, his story appeared on the front page of the Los Angeles Times. We immediately appealed his case to the U.S. Court of Appeals for the 9th Circuit which overturned his denial. Miguel was scheduled for a new hearing before an Immigration Judge.
Miguel had, by this time, lived in the U.S. for more than 7 years. Under a law which existed at that time, he could apply for a green card through “suspension of deportation”. He would need to show that he was a “person of good moral character” which he clearly was. He would also need to demonstrate that he would suffer “extreme hardship” if he were forced to return to El Salvador. This was a discretionary determination.
What he needed was a compassionate Immigration Judge.
Enter Immigration Judge Nathan Gordon, Supermensch
Fortunately, the Judge who had ordered Miguel deported had retired. By a great stroke of luck, Miguel’s case was transferred to Judge Gordon.
From my previous experiences with Judge Gordon, I was certain that he would find that Miguel would suffer extreme hardship if he were forced to return to El Salvador.
I scheduled a meeting with the INS District Director. I explained the facts of the case to him. Did the government want to look like bad guys eager to deport an honor student? Or would he consider having the government’s attorney tell Judge Gordon that they agree that Miguel’s application should be granted? The District Director agreed that Miguel should be granted suspension of deportation.
I told the District Director that there would be dozens of reporters and TV cameramen waiting outside the courtroom. At the hearing, we requested that Judge Gordon grant Miguel’s application for a green card. Judge Gordon then asked the government attorney what their position was. She told him that the government agreed that Miguel’s application should be granted. Judge Gordon smiled and proceeded to grant Miguel’s application.
Had Judge Gordon not been assigned to the case, I doubt that the government would have agreed prior to the hearing that Miguel’s application should be approved.
Fast Forward
Miguel went on to get a Ph.D and became a distinguished professor at a public university. He is married and is a great husband and father.
As I watched Judge Gordon’s casket being lowered into his grave last week, I thought about the thousands of immigrants like Miguel whose lives were altered in such a positive way by Judge Gordon.
Judge Nate Gordon was truly a Supermensch.
Carl Shusterman
Carl Shusterman served as an INS Trial Attorney (1976-82) before opening an 8 attorney firm specializing in immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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Thanks, Carl, for a lovely and fitting tribute to a great jurist and a fine person! Judge Gordon actually took the bench shortly before I became the Deputy General Counsel at the “Legacy INS.” I became familiar with him and his work both during my time at the “Legacy INS” and during my time at the BIA. Indeed, Nate’s son, Attorney Louis Gordon, had an oral argument before a panel of the BIA sitting in Los Angeles. (Yes, there was a time, before Ashcroft, when the BIA was actually allowed to function largely along the lines of a real Federal Court and to decide to have arguments “on the road.” Now, the BIA is “confined to quarters” at Falls Church.)
Carl worked for me for a short time as a Trial Attorney at the Los Angeles Immigration Court when I was the DGC. But, he quickly found fame and fortune elsewhere.
Note how Immigration Court was once a more “user friendly” place, where there was mutual respect among the two parties and the Immigration Judge, and the objective was doing justice, not just cranking out more removal orders to keep the politicos at DOJ happy. Sadly, under Trump and his cronies at DOJ, the U.S. Immigration Court system is actually regressing in terms of expertise, professionalism, independence, and management — “stuck in reverse.”
Amid huge backlog, L.A. will get more immigration judges
Head of national jurist group says they’re ‘being used … as a political tool.’
By Andrea Castillo
Los Angeles has the nation’s second-largest immigration court backlog, with 29 judges handling 72,000 pending cases.
That’s including four judges who started within the last few months. An additional 10 were expected to be sworn in this week, according to Judge Ashley Tabaddor, who leads the National Assn. of Immigration Judges.
But she says that won’t fix the problem.
“We’re just transparently being used as an extension of the executive branch’s law-enforcement policies, and as a political tool,” she said.
U.S. Atty. Gen. Jeff Sessions welcomed 44 new judges earlier this month, addressing them at a kickoff for their training with the Executive Office for Immigration Review. He said the administration’s goal is to double the number of judges active when President Trump took office.
“As you take on this critically important role, I hope that you will be imaginative and inventive in order to manage a high-volume caseload,” Sessions told them. “I do not apologize for expecting you to perform, at a high level, efficiently and effectively.”
There are 351 judges in about 60 courts around the country — up from 273 judges in 2016. These judges manage a backlog of nearly 750,000 cases,a figure that has grown from a low of less than 125,000 in 1999. Last year, Sessions introduced a “streamlined hiring plan” that cut the hiring timefor immigration judge candidates by more than half.
The EOIR has the funding for 484 judges by the end of the year, spokeswoman Kathryn Mattingly said.
Tabaddor said the impending quotas and production deadlines, which take effect next month, have caused severe anxiety among judges. Justice Department directives that were announced in April outlined a quota system tied to performance evaluations under which judges will be expected to complete 700 cases a year to receive a “satisfactory” rating.
Hiring more judges won’t be enough to alleviate the pressure they’re all under, Tabaddor said.
“It’s pitting the judges’ livelihood against their oath of office, which is to be impartial decision-makers,” she said, calling it an “assembly-line formula.”
Tabaddor said there also isn’t enough space for new judges, so some might not start right away. She described the downtown L.A. offices as cramped, with law clerks sharing offices or cubicles. And she said additional support staff members have yet to be hired.
Yup! As long as the Immigration Courts are under DOJ, and particularly under the rule of “Gonzo Apocalypto,” it will be an exercise in “throwing good money after bad.” As I’ve said before (perhaps in the LA Times?), what Sessions is doing is like “taking an assembly line that is producing defective cars and making it run faster so that it will produce even more defective cars.” More or less the definition of insanity, or at least “fraud, waste, and abuse” of Government resources. But, accountability went out the window as soon as Trump took over and the GOP controlled both the Executive and Congress.
For a glimpse of what Immigration Court will look like under the new “Gonzo Quotas,” check out this great video:
Priscilla writes in an article that also contains quotes from highly respected DC area immigration practitioner Dree Collopy (emphasis added in below excerpt):
“Responding to the 2014 migrant wave, the Obama administration temporarily redirected immigration judges to the southern border to preside over removal proceedings and bond hearings, and review whether any individuals’ claims of fear of persecution were credible. Immigration cases being heard in other parts of the United States had to be put on hold, said Jeremy McKinney, an attorney and board member of the American Immigration Lawyers Association. “The surge was the first time we saw a deployment of immigration judges to the border, resulting in non-detained dockets in the United States getting much worse,” McKinney said, referring to cases that do not require detention. “That situation already put a strain on the interior immigration courts.”
The Justice Department, which hires judges for immigration courts, was also tied up by the budget sequester from 2011 to 2014, so there weren’t enough judges to try cases, he added. Over time, the backlog grew from around 327,000 cases at the end of the 2012 fiscal year to half a million in 2016.
Judge Paul Schmidt, who was appointed in 2003 by Attorney General John Ashcroft, had around 10,000 immigration cases pending when he left his job last year. “When I retired, I was sending cases to 2022,” he told me. Schmidt, who primarily served in the Arlington Immigration Court in northern Virginia, was assigned to those not considered a priority—say, people who had traffic violations. The current national backlog, Schmidt said, largely consists of cases like the ones he handled.
The Trump administration has taken steps that could quicken the courts’ work. For one, ICE officers can now deport someone immediately, without a hearing, if they fit certain criteria and have lived in the United States for up to two years. Under the last administration, that timeline was up to two weeks, and the individual needed to be within 100 miles of the border.
Attorney General Jeff Sessions also announced, in a speech on the Arizona-Mexico border, that the Department of Justice will add 125 immigration judges to the bench over the next two years: 50 this year and 75 in 2018. He urged federal prosecutors to prioritize the enforcement of immigration laws. “This is a new era. This is the Trump era,” Sessions said. “The lawlessness, the abdication of the duty to enforce our immigration laws, and the catch-and-release practices of old are over.”
“You have to give Sessions credit for this,” Schmidt said. “He took note of the 18-to-24-month cycle for filling judges and said he was going to streamline that.” The math still doesn’t exactly work out, however. “A fully trained judge, which new judges won’t be, can do about 750 cases a year. So 125 new judges could do fewer than 100,000 cases a year once they’re up and trained,” he said. Factor in the fact that it takes up to two years to become “fully productive,” he said, and altogether, it could take five to six years for the 125 new judges to cut down the backlog.
All the while, new cases will continue to come in as the administration enforces its new, broader policies on deportation. Newly detained individuals will be prioritized over other cases, which will be pushed further down the road. “I think it has a particular impact on asylum-seekers, because the sense of being in limbo really seems to prolong their trauma and their sense of statelessness that they have,” said Dree Collopy, an immigration lawyer in Washington, D.C. And hearing delays can affect asylum-seekers’ credibility, as well as evidence to support their cases: “Over time, especially when trauma is involved, memories begin to fade.” If a person can’t testify until years after entering the United States, “that can obviously cause problems.”
When Collopy first started practicing immigration law in 2007, cases generally would take about a year or two to complete. That’s no longer the case: “Now, it’s taking four or five years on average,” she told me. With the Trump administration rounding up undocumented immigrants quicker than courts can process cases, that delay isn’t likely to shorten.”
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Read Priscilla’s full article at the above link.
A “smart” strategy would address the 542,000 pending cases before piling on new priorities. Under a more rational policy, those in the current backlog with equities in the U.S., “clean records,” or only minor criminal histories, could be offered “prosecutorial discretion” (“PD”) and taken off the Immigration Court’s docket to make room for higher priority cases.
However, instead of encouraging more use of PD, which was starting to make some difference by the end of the Obama Administration, the Trump Administration has basically made “everything” a potential “priority.” Moreover, as a “double whammy” the Administration has basically “disempowered” those at DHS who know the Immigration Court system the best, the local ICE Assistant Chief Counsel, from freely exercising PD to take non-criminal cases off the docket.
Ironically, at the same time, DHS appears to be giving line enforcement agents the “green light” to arrest just about anyone who might be removable for any reason. However, the line agents unlikely to understand the limitations of the current Immigration Court system and what is already “on the docket.”
The Immigration Court system is basically the opposite of most other law enforcement systems where prosecutors, rather than policemen or agents, determine what cases will be brought before the court. And, in most functioning court systems, the individual sitting judges control their own dockets, rather than having priorities set by politically-driven non-judicial bureaucrats in other places. It certainly appears to be a prescription for disaster. Stay tuned!
PWS
04-21-17
NOTE: In an earlier version of this article I “blew” Priscilla’s name by calling her “Patricia.” My apologies. I’ve now corrected it.
Rick Jervis, Alan Gomez, and Gustavo Solis report:
“In San Antonio, an immigration judge breezes through more than 20 juvenile cases a day, warning those in the packed courtroom to show up at their next hearing — or risk deportation.
A Miami immigration lawyer wrestles with new federal rules that could wind up deporting clients who, just a few weeks ago, appeared eligible to stay.
Judges and attorneys in Los Angeles struggle with Mandarin translators and an ever-growing caseload.
Coast to coast, immigration judges, prosecutors and defense attorneys are straining to decipher how the federal immigration rules released in February by the Trump administration will impact the system — amid an already burgeoning backlog of existing cases.
The new guidelines, part of President Trump’s campaign promise to crack down on illegal immigration, give enforcement agents greater rein to deport immigrants without hearings and detain those who entered the country without permission.
But that ambitious policy shift faces a tough hurdle: an immigration court system already juggling more than a half-million cases and ill-equipped to take on thousands more.
“We’re at critical mass,” said Linda Brandmiller, a San Antonio immigration attorney who works with juveniles. “There isn’t an empty courtroom. We don’t have enough judges. You can say you’re going to prosecute more people, but from a practical perspective, how do you make that happen?”
Today, 301 judges hear immigration cases in 58 courts across the United States. The backlogged cases have soared in recent years, from 236,415 in 2010 to 508,036 this year — or nearly 1,700 outstanding cases per judge, according to the Transactional Records Access Clearinghouse, a data research group at Syracuse University.
Some judges and attorneys say it’s too early to see any effects from the new guidelines. Others say they noticed a difference and fear that people with legitimate claims for asylum or visas may be deported along with those who are criminals.
USA TODAY Network sent reporters to several immigration courts across the country to witness how the system is adjusting to the new rules.”
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Read the entire article, with reports from the Miami, Los Angeles, and San Antonio U.S. Immigration courts at the above link.
As I mentioned in the previous post, http://wp.me/p8eeJm-IG, one of the ways the Trump Administration apparently plans to deal with the U.S. Immigration Court “bottleneck” is by avoiding the court altogether through expanded use of “Expedited Removal” before DHS officers.
Additionally, Attorney General Jeff Sessions has announced plans to “streamline” the existing hiring process for U.S. Immigration Judges and to seek an additional 125 Immigration Judges over the next tow years (although those new judgeships would require congressional approval). http://wp.me/p8eeJm-Gp
“The burden on judges could also increase, as dockets swell with more cases and those on the bench come under increasing pressure to render decisions.
“I see this as a pot that is going to boil over and scald everybody,” said Bruce Einhorn, a former immigration judge in Los Angeles. “I just don’t see pragmatically how you can almost double the number of cases without spending huge amounts of money to try to accommodate the dockets of the cases already on schedule and those that will be brought into the system.”
The backlog of cases is not new. It has steadily increased over the past decade — even as fewer immigrants have been apprehended along the Southwest border in recent years. In response, the Executive Office for Immigration Review, the agency that oversees the courts, has added more judges, including one to Los Angeles in November. It’s also prioritized juvenile cases in an effort to speed up cases of migrant youth.”
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The full article, at the link, contains a 9-minute audio segment. Does anyone seriously think that adding one Immigration Judge in Los Angeles or “prioritizing” juvenile cases will solve this mess?
Actually, the misguided prioritization of juvenile cases, many of them unrepresented, over longer pending cases of represented individuals is exactly the type of “Aimless Docket Reschuffling” that has created a practically insurmountable backlog in the Immigration Courts, notwithstanding a modest decline in new case receipts and a modest increase in resources. The inability of the DOJ and EOIR to establish an efficient merit hiring system for new Immigrstion Judges and poor planning for additional courtrooms to house new judges has also aggravated the problem.
