Category: Immigration Courts

Sunny Thoughts On A Dreary Day In DC — Read More From WNYC/NPR Reporter Beth Fertig — The “New Due Process Army” Takes the Field — Bronx Defenders and Courtney M. Lee (Former Arlington Immigration Court Intern And Star Georgetown CALS Asylum Clinic & RLP Student) Work To Save Lives & Insure Due Process In Our Immigration Courts Every Day!

https://www.wnyc.org/story/free-lawyers-provided-city-help-more-immigrants-detention-win-cases/

Beth Fertig writes:

“Arturo had his most recent hearing in December, in front of Judge Patricia Buchanan. He wore an orange jumpsuit with the initials of the Hudson County Department of Correction on the back, and his hands were shackled. The 31-year-old is five-foot-three and slim, and appeared very nervous. He sat with his team from Bronx Defenders, [Supervisory Attorney Sarah Deri] Oshiro and Law Graduate Courtney Lee, and a court-appointed translator. There was also an attorney from Immigration and Customs Enforcement, James McCarthy.

Arturo’s case is very complicated and his team has a few different claims. They are asking the court to withhold his deportation on the grounds that he’ll be persecuted or tortured if he goes back to Mexico.

“His stepfather subjected him to — during his entire childhood and adolescence — to really severe constant and consistent sexual, physical and psychological abuse,” Lee explained.

In court, she asked Arturo to recall some of the beatings and how his mother and siblings are still living in terror. He said the abuse continued even after he arrived in New York and sent his mother money to leave the man. He described in Spanish how he feared his stepfather would kill him if he moved back to Mexico, because he was the one who helped his mother escape. And he said he had no other place to live except for the town in which they reside. But Judge Buchanan appeared skeptical. She asked if he had any family in New York when he first arrived in 2004, and he said no.

Arturo’s legal team is also seeking to halt his deportation by arguing his two young children would be harmed. Immigrants who have lived in the U.S. illegally for at least 10 years can apply for a cancellation of removal if an American citizen would suffer “exceptional and unusual hardship.”

It’s a tough bar to meet, and it doesn’t help Arturo’s case that he has a few convictions for misdemeanors, including breaking a store window when he was drunk and possession of marijuana. But his advocates argued that these are minor and were related to the traumas he suffered as a child. He told the court he stopped using marijuana and alcohol after his children were born, to set a “good example.” His advocates said he also has an employer who believes in him, and wants to hire him back.

Because Arturo is the primary breadwinner, they argued deporting him would put the children at risk of homelessness. His partner, the children’s mother, is already fighting eviction proceedings. And Arturo said the stress from his detention has caused his seven year-old son to wet the bed and barely eat. But McCarthy, of I.C.E., argued that the children seem healthy and are not experiencing “exceptional and unusual hardship.”

The judge had to stop the proceedings at noon because she had too many other cases that day. She scheduled Arturo’s next hearing in February, almost a year after he was sent to detention.”

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Go to Beth’s full article at the link for a fantastic picture of Courtney and her Supervisory Attorney Sarah Deri Oshiro.  Way to go, Courtney and Sarah!

These days, in retirement, in addition to writing, I attend many events, give lots of speeches, and guest lecture at law schools and colleges, all largely directed at pointing out why refugees and other migrants make America great, the sad state of our United States Immigration Court System, the overwhelming importance of working to force our Immigration Courts to live up to their unfulfilled promise to “guarantee fairness and due process for all,” and the compelling need for reforms to make the Immigration Courts independent from the Executive Branch.

Almost everywhere I go, I run into great attorneys who once were Judicial Law Clerks or interns for the U.S. Immigration Court in Arlington, appeared in Immigration Court under clinical practice programs sponsored by local law schools (like Georgetown’s famous CALS Asylum Clinic), or are former students who took my Refugee Law and Policy (“RLP”) course at Georgetown Law in 2012-14.  There are all, without exception, doing absolutely wonderful things to advance the cause of fairness and due process for migrants.

They are all over:  projects like Bronx Defenders, NGOs, pro bono organizations, big law, small law, public interest law, courts, government agencies, Capitol Hill, academia, journalism, management, and administrative positions.  I call them the “New Due Process Army” and they are going to keep fighting the “good fight” to force the Immigration Courts and the rest of our justice system to live up to the promise of “fairness and due process for all” whether that takes two years, ten years, twenty years, or one hundred years.  If we all keep at it and support one another it will eventually happen!

Last night, I was at a very moving retirement ceremony for Shelly Pitterman, the United Nations High Commissioner for Refugees Regional Representative for the United States and the Caribbean.  Fortunately, Shelly is going to remain in the human rights field, joining Mark Hetfield and the other wonderful folks over at the Hebrew Immigrant Aid Society (“HIAS”).  I wish I had gotten to know Shelly better.  He was repeatedly described as a dynamic leader who inspired everyone around him to perform at a higher level (just like Aaron Rodgers of the Pack), apparently even on the softball field!

In attendance were two of our “total superstar” former Arlington Immigration Court legal interns, Katie Tobin and Lindsay Jenkins, both Assistant Protection Officers (one of the most coveted jobs) with the UNHCR.  Accomplished attorneys,  dynamic leaders, and terrific role models in they own rights, Katie and Lindsay are using their education and experience to live out their deeply held values every day and to help make the world a fairer, more humane, and better place for all of us.  Both of them represent the true values of the real America:  fairness, scholarship, respect, teamwork, and industriousness (not to mention a sense of humor).

To Courtney, Katie, Lindsay, and all the other “soldiers” of the “New Due Process Army” thanks for what you are doing for all of us every day!  It is an honor to know you and to have played a role, however modest, in your quest to make the world an even greater place.

PWS

01/20/17

 

Related posts:

  1. BETH FERTIG @ WNYC/NPR: Judges Under Artificially Enhanced Stress: A Portrait Of The Newer Judges At The New York Immigration Court
  2. BETH FERTIG AT NPR: “ADR” Moves Into High Gear, Devastating U.S. Immigration Courts, As Half Of NY Immigration Court “Goes Dark” — U.S. Immigration Judges Become Adjuncts Of DHS Border Enforcement Program — Dockets At Interior Courts “Orbited Into Never-Never Land!”
  3. REAL DUE PROCESS MAKES A STUNNING DIFFERENCE! – NY PROJECT FINDS THAT REPRESENTED IMMIGRANTS ARE 12X MORE LIKELY TO WIN CASES!
  4. COURTS OF INJUSTICE: How Systemic Bias, Bad Precedents, Gross Mismanagement, & Poor Decision-Making Threaten Lives In Immigration Court — What Should Be “Slam Dunk” Grants Of Protection Are Literally “Litigated To Death” Adding To Backlogs While Mocking Justice! — Featuring Quotes From “Roundtable” Leader Hon. Jeffrey Chase!

Obama DOJ’s Failed Priorities Leave Backlogs, “Frontlogs,” And Overall Docket Chaos As Legacy To United States Immigration Courts!

http://trac.syr.edu/whatsnew/email.170117.html

TRAC Immigration writes:

“(17 Jan 2017) The number of judges is still insufficient to handle the growing backlog in the Immigration Court. The court’s crushing workload reached a record-breaking 533,909 pending cases as the court closed out calendar year 2016, up 4.2 percent in just the last four months.
The problem is particularly acute for priority cases involving women with children according to the latest court data updated through the end of December 2016 and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. Pending priority cases for these families jumped by more than 20 percent (21.9%) in just the last four months. The backlog of these family cases alone totaled 102,342 last month, surpassing 100,000 cases for the first time.

The number of pending priority cases involving unaccompanied children also has continued to climb, reaching 75,582 at the December 2016. Together with family cases, this priority workload now accounts for fully one third (33%) of the court’s overall record backlog.”

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How totally sad and disappointing for those of us who care deeply about the due process mission of our United States Immigration Courts!  The Obama Administration had eight full years to make the necessary reforms to put the United States Immigration Courts back on track to achieving their “due process vision.” Instead, alternating indifference to and interference with the due process mission of the Immigration Courts made a bad situation even worse. And, unlike the Article III Courts, the U.S. Immigration Courts are a “wholly-owned subsidiary” of the DOJ and the Administration. So, Republicans can’t be blamed for this one. In fact, recently the Republican-controlled Congress provided strong bi-partisan support for the Immigration Courts by authorizing and funding additional U.S. Immigration Judge positions (many of which, however, remained unfilled at the end of the Obama Administration).

We’ll see what happens next. But, if the results aren’t happy for due process, Democrats are going to have to shoulder much of the blame.

PWS

01/20/17

 

 

Related posts:

  1. TRAC DATA: IMMIGRATION COURTS DISCRIMINATE AGAINST DETAINED INDIVIDUALS AND MEXICAN NATIONALS IN PROCEDING WITHOUT COUNSEL!
  2. TRAC IMMIGRATION: MORE ARRESTS, MORE ENFORCEMENT, MORE DETENTION, MORE U.S. IMMIGRATION JUDGES, MORE GRANDIOSE CLAIMS – FEWER REMOVALS, FEWER COURT FILINGS, MORE COURT BACKLOGS – Somehow, The Trump Administration’s “Gonzo” Immigration Enforcement Program Doesn’t Add Up!
  3. “THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT” — My Speech To The Association Of Deportation Defense Attorneys, NY City, March 21, 2019
  4. HARD RIGHT TURN: Barr Appoints “Death Squad” Of New “Appellate Judges” Tasked To “Snuff Out” Any Last Remaining Pockets Of Due Process For Asylum Seekers & Send As Many As Possible Unlawfully Into Harm’s Way! — Judge Earle Wilson Has An Astounding 98.1% Asylum Denial Rate, But His New Colleagues Are Hot On His Tail! — TAL @ SF CHRON REPORTS!

Quartz Media Reporter Ana Campoy “Nails” The Obama Administration’s Failed Southern Border Strategy — “We like to advertise ourselves as a beacon of liberty and justice; it’s time we acted that way.” (Quoting Me)

THE LAW IS THE LAW
The US doesn’t have an immigration problem—it has a refugee problem
Ana Campoy January 18, 2017

http://trac.syr.edu/whatsnew/email.170117.html

Quote boxes:

“In fact, Trump’s fixation with blocking illegal immigration from Mexico, which has plummeted in recent years, obfuscates the problem. Yes, border patrol agents are apprehending thousands of people every month along the US-Mexico line, but many of them—around half, according to Claire McCaskill, a member of the US Senate’s homeland security and governmental affairs committee—turn themselves in voluntarily asking for help. Government statistics bear this out. The number of immigrants claiming fear of persecution or torture in their home countries is on the rise, and so are the findings that those claims are credible. In order to be considered for asylum by an immigration judge, immigrants first have to go through a “credible fear” screening, in which an asylum officer determines whether the claims they are making have a “significant possibility” of holding up in court.

More than 70% of those who claimed credible fear in the 2016 fiscal year hailed from El Salvador, Honduras, and Guatemala, places beset by rampant violence.

Under US law, individuals who are found to have credible fear have the right to due process to determine the validity of their claims in the court. Whether they are Syrians escaping civil war, or El Salvadorans fleeing from criminal gangs, what they have to prove is the same: that they face persecution because of their race, religion, nationality, membership in a particular social group, or political opinion.

But US authorities don’t always take Central American immigrants’ fears seriously, studies suggest. One, released by the American Immigration Lawyers Association in 2016, found that not all border patrol agents are asking immigrants if they’re afraid to return to their country, as they are required to do. Other agents refuse to believe them, per the report, which is based on immigrant testimony documented by the group. Another 2016 analysis, by the US Commission on International Religious Freedom, a government advisory body, noted, “outright skepticism, if not hostility, toward asylum claims” by certain officers, among other practices that may be resulting in deportations of refugees with a legitimate right to stay.

A US Customs and Border Protection (CBP) spokesman said the agency “strives to treat every person we encounter with dignity and respect.” Anyone with concerns about the treatment doled out by its officers can call the agency, he added.”

. . . .

“The Obama administration’s response has already run up against the law. For example, several courts have shot down the government’s arguments and efforts to justify the detention of children and families while their cases wait to be resolved—a policy meant to convince would-be immigrants to stay home.

On Jan. 13, a coalition of immigrant rights groups filed a formal complaint with the Department of Homeland Security’s Office for Civil Rights and Civil Liberties accusing CBP officers of turning back people requesting asylum at ports of entry along the US-Mexico border. In what the groups called an “alarming new trend,” the officers have allegedly been telling immigrants that they can’t enter the country without a visa— contrary to US law—and referring them to Mexican immigration authorities.

Trump has framed his border policy as a choice between enforcing existing laws against illegal immigration or skirting them. But the decision facing US leaders is rather more complicated: Should the US continue providing refuge to those who are unfairly persecuted in their home countries?

If Americans are unwilling to do that, perhaps it’s time to do away with the nation’s asylum laws—and remove the famous poem at the base of the Statue of Liberty welcoming the world’s “huddled masses yearning to breathe free.”

Recently retired immigration judge Paul Wickham Schmidt put it this way: “We like to advertise ourselves as a beacon of liberty and justice; it’s time we acted that way.”

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In my view, Ana Campoy provides a remarkably clear and well-documented analysis of why the Obama Administration’s “get tough” border policies have failed, and why the Trump Administration would be wise to take a more “nuanced” approach that recognizes our obligation to provide due process and protection under our laws to individuals fleeing from the Northern Triangle.

As incoming DHS Secretary Gen. John Kelly has recognized, this problem can’t be solved just by (even more) enhanced enforcement on our end.  It will require addressing the systemic problems in the sending countries of the Northern Triangle, which certainly have most of the characteristics of “failed states,” as well as working with other stable democratic nations in the Americas to fashion meaningful protections, inside or outside the asylum system, for those who are likely to face torture, death, or other types of clear human rights abuses if returned to the Northern Triangle at present.

It’s not an easy problem to solve, and there are no “silver bullets.”  But, we know what doesn’t work.  So, it sure seems like it would be a good idea to try  different approaches (and I don’t mean repealing asylum protections as Ana, somewhat facetiously suggests near the end of her article).

PWS

01/19/17

 

Related posts:

  1. THE HILL: NOLAN ON THE CURRENT BORDER CRISIS
  2. TRUMP’S MALICIOUS INCOMPETENCE IS THE REAL “SOUTHERN BORDER CRISIS” — AND, A GENUINE HUMAN TRAGEDY — The Legal Tools To Address The Crisis In The Northern Triangle Causing A Refugee Flow Exist; This Administration Stubbornly Refuses To Use Them!
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. TRUMP & HIS ENABLERS CLAIM THAT IT’S SAFE TO RETURN GUATEMALANS — THEY LIE! — The Facts “On The Ground” Tell A Far Different Story: “No wall will stop the flow of migrants. No raging about rapists or threats to separate families will stop it. No racism against brown people or fear of demographic change in 21st-century America will stop it. A broken American immigration system certainly won’t stop it. Not as long as Central Americans are desperate.”

USG Bid To Max Criminal Deportation Law May Be On The Rocks Before The Supremes!

http://www.latimes.com/politics/la-na-supreme-court-deport-burglars-20170117-story.html

David G. Savage writes in the L.A. Times:

“The law in this area is not entirely clear. Beginning in 1988, Congress ordered deportation for noncitizens who are convicted of an “aggravated felony,” and it cited specific examples such as murder and rape. Later the law was expanded to include a general category of “crimes of violence.” This was defined to include offenses that involve a use of physical force or a “substantial risk” that force would be used.

Judges have been divided as to what crimes call for deportation. Looming over Tuesday’s argument was an opinion written two years ago by the late Justice Antonin Scalia. He spoke for an 8-to-1 majority in striking down part of a federal law known as the Armed Career Criminal Act. It called for extra years in prison for people convicted of more than one violent felony.

In that case, the extra prison term was triggered by the defendant’s possession of a shotgun. In frustration, Scalia and his colleagues said the law was unconstitutionally vague because they could not decide whether gun possession is itself evidence of a violent crime.

“You could say the exact same thing about burglary,” Justice Elena Kagan said Tuesday. A midday burglary of a home could result in violence, she said, but perhaps not if it were an empty garage or an abandoned house. “So it seems like we’re replicating the same kind of confusion,” she said.

Justice Stephen G. Breyer said judges have no way to decide which crimes typically or usually involve violence. “We’re just left guessing,” he said, suggesting a better approach would be “look at what the person did.”

But Deputy Solicitor Gen. Edwin Kneedler said a home burglary poses a risk of violence. And he said the court should defer to the government on matters of immigration. The law, he said, calls for a “broad delegation” of authority to executive officials.

This is the argument government lawyers made in defense of President Obama’s use of executive authority to try to shield millions of immigrants from deportation. It is also the argument that would call for upholding an aggressive deportation policy if pursued by the Trump administration.”

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Interesting juxtaposition here!  The key opinion relied on by the immigrant is an 8-1 decision in Johnson v. United States, 135 S.Ct. 2551 (2015), written by conservative judicial icon Justice Antonin Scalia in which he ripped apart on constitutional vagueness grounds a provision of the Armed Career Criminal Act that is virtually identical to the deportation statute.

The Obama Administration reacted by vigorously reasserting in the lower courts and the Immigration Courts its right to ignore Justice Scalia’s reasoning in the civil deportation context and continue to deport individuals convicted of residential burglary.

But, liberal judicial icon Judge Stephen Reinhardt and one of his colleagues on the Ninth Court of Appeals seized on Scalia’s opinion and applied it to the immigration law to block such deportations.  The Seventh Circuit followed suit, but the Fifth Circuit did not, thereby setting up a “circuit split” — something that often convinces the Supreme Court to exercise its discretionary authority to intervene by granting a “writ of certiorari.”

The case is Lynch v. Dimaya, No. 15-1498 which, as pointed out by David Savage, will soon morph into Sessions v. Dimaya.  Stay tuned for the results!

Did you know that:  The Government’s lawyer in Dimaya, career Deputy Solicitor General Edwin Kneedler, a friend and an outstanding public servant, has argued more than 125 U.S. Supreme Court cases during his distinguished Government career, more than any other living lawyer!  

Wow!  Most lawyers would feel lucky and privileged to argue a single case before the Supreme Court.  I know I sure would.  Just think of the hours of preparation spent in preparing to argue well over 100 cases!  

When I was Deputy General Counsel and Acting General Counsel of the Legacy INS, I used to help the Solicitor General’s Office prepare for oral arguments in immigration cases.  So, I know how intensive the preparation process is.  

At least once, I was asked to sit with the Deputy SG arguing the case at counsel table in the Court.  That was as close as I ever got to appearing before the Court.  

I remember one case that I observed — I can’t remember if I was at counsel table or in the audience — was the immigration classic INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) establishing the generous “well-founded fear = reasonable likelihood” standard for asylum, which I ended up having to apply thousands of times as a trial and appellate judge in the Immigration Courts.  That day, however, we were on the “losing” side of the argument, having presented the case for a more stringent standard.  Nevertheless, I think the Court got it completely right.  

The “winning” lawyer before the Court that day was a young immigration attorney from San Francisco, Dana Marks Keener, now known as Judge Dana Leigh Marks of the San Francisco Immigration Court and the President of the National Association of Immigration Judges.  Since then, of course, Dana and I have become judicial colleagues and great friends.  I often refer to her as “the founding mother of modern U.S. asylum law.”

Small world.

PWS

01/18/17

Related posts:

  1. SUPREME BOMBSHELL: JUSTICE GORSUCH PROVIDES CRITICAL FIFTH VOTE FOR OVERTURNING DEPORTATION STATUTE FOR UNCONSTITUTIONAL VAGUENESS! — Administration Suffers Yet Another Legal Setback, This Time At the High Court! – Sessions v. Dimaya — Get The Full Opinion, Court Syllabus, Key Quotes, & My “Instant Analysis” HERE!
  2. Supremes Drop Back, Boot It Deep, J. Gorsuch Calls For Fair Catch, Play To Resume In Fall Quarter! — I.O.W. They “Punted” The 3 Remaining Immigration Cases On The Fall 2016 Docket!
  3. IMMIGRATIONPROF: Dean Kevin Johnson Gives Us The Supreme’s “Immigration Lineup” For Oct. 2107 — It’s Much More Than Just The Travel Ban!
  4. LA TIMES: SUPREMES MUST DELIVER ON PROMISE OF DUE PROCESS FOR IMMIGRANTS! — “[T]oo often immigrants haven’t received fair treatment from the courts.“ — Is Justice Gorsuch About To Make Good On His Oath To Uphold The Constitution By Standing Up For Due Process For Migrants?

Washington Post: What’s It Really Like To Be A Syrian Refugee In America?

https://www.washingtonpost.com/local/were-definitely-scared-a-refugee-family-contemplates-president-trump/2017/01/17/237983ee-d6a0-11e6-9a36-1d296534b31e_story.html?hpid=hp_local-news2_refugee-915am%3Ahomepage%2Fstory&utm_term=.9b3146fad22d

Justin Wm. Moyer writes in today’s Post:

“In Daraa, Syria, their home town about 70 miles south of Damascus, they huddled in a makeshift shelter as the city exploded around them. Their infant daughter, sick with a virus and smoke inhalation, had to be hospitalized. Even after horror upon horror — trigger-happy soldiers at checkpoints, barrel bombs — they tried to convince themselves that they could stay until they fled in 2013.

“The hardest thing we ever had to do was leave,” Jbawi said.

Then came purgatory: a month in a refu­gee camp followed by three years in Jordan as they waited for placement. There were background checks and interviews with U.S. officials before the relocation application was approved.

“This is your chance to make your life better,” Jamal Jbawi, Nadia’s husband, recalled being told.

Now comes Trump. Jamal Jbawi, 39, said the family has experienced no racism since their arrival. Not everything can change on Inauguration Day. Can it?

. . . .

Four years ago, Jamal Jbawi was teaching English literature to teenagers in Syria. Shakespeare was his favorite, particularly “King Lear” and “Hamlet” — the latter for its depiction of the “conflict between good and evil,” he said.

After surviving a civil war, he makes a living in quality control for Danko Arlington, a 97-year-old aluminum sand foundry. Without a car, he wakes at 4:30 a.m. and takes a 90-minute bus ride to the factory in Baltimore’s rugged Arlington neighborhood.

“Public transportation is very bad,” he said.

Jamal Jbawi inspects airplane parts for $11 per hour, working four, 10-hour shifts per week. Just getting back to work — any kind of work — after years in Jordan is a blessing.

“The factory is very kind,” he said.”

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This is a great article that emphasizes some thing things about refugees that often are overlooked or distorted.

First, as I’ve said many times, “nobody wants to be a refugee.”  It just happens.  And, frankly, it could happen to any of us, at any time, particularly when we least expect it.  All of us who have the great fortune not to be refugees should be thanking our lucky stars every day!  It’s a matter of luck, not merit on our part.

Most refugees, like the Jbawis, were leading stable, productive, and often prosperous lives in their home countries.  They had to leave everything they knew and had worked so hard for behind.  Like most of us, they never expected that events beyond their control would force them to flee to a strange and new foreign land, no matter how hospitable that land might prove to be.

Second, the article confirms something that always struck me when hearing asylum cases at the Arlington Immigration Court:  the extreme amount of abuse that many refugees would accept to avoid leaving their home countries.

After graphic stories of brutal arrests, imprisonments, repeated beatings, torture, and death threats, the question often came up “why didn’t you leave sooner?”  Sometimes it was just a question of not having the opportunity to leave.  Other times, people were reluctant to leave behind, family, friends, jobs, churches, and community.

But, a surprising number of people, particularly political dissidents and religious dissenters, expressed an unusual degree of optimism that things were going to change for the better, that their party would win the elections, that the government would eventually allow them to worship, or that the government would forget about them and move on to heap abuse on another disfavored group.  This was true even when all of the objective evidence suggested that their torment would have no happy ending.

In other words, they were in denial.  Their innate desire to avoid disruptive change outweighed the objective evidence that they would be better off going sooner rather than later.

It’s hard to get people to make fundamental changes in their established living patterns.  That’s why refugees are exceptional individuals: risk takers, resourceful, courageous, ambitious, hard working, and flexible. That’s exactly the kind of person America needs to build an even greater future for all of us.

PWS

01/18/17

Related posts:

  1. GONZO’S WORLD: HIS HIGHLY DISINGENUOUS “TRIBUTE” TO DR. KING WHILE ACTIVELY UNDERMINING MLK’S VISION OF RACIAL EQUALITY IN AMERICA OUTRAGES CIVIL RIGHTS ADVOCATES! — Hollow Words From An Empty Man!
  2. COURTSIDE HISTORY: HOW THE FOUNDING FATHERS’ RACISM ERASED A PRESIDENT’S DAUGHTER! — ALSO MY: “FRIDAY ESSAY — FROM MONTICELLO TO TRUMP, MILLER, SESSIONS, AND THE GOP WHITE NATIONALISTS”
  3. WASHPOST: THE LATEST VULNERABLE GROUP TARGETED BY THE TRUMP/SESSIONS DEATH SQUADS: LGBTQ REFUGEES!
  4. “CONSTITUTIONAL CASTRATION”– CATHERINE RAMPELL @ WASHPOST: HOW THE FECKLESS GOP CONGRESS IS SCREWING THE MOST VULNERABLE AMONG US BY LETTING THE TRUMP ADMINISTRATION TRASH THE IMMIGRATION LAWS AND END-RUN THE CONSTITUTION WITHOUT CONGRESSIONAL PARTICIPATION! – “The Trump administration keeps scolding desperate immigrants to shape up and “follow the law.” When will cowardly members of Congress insist that the president do the same?”

Another Installment In The Schmidt Making America Really Great Series: “Refugees And Due Process Make America Really Great” — Read My Speech From Last Night’s “Refugee Ball”

REFUGEES AND DUE PROCESS MAKE AMERICA REALLY GREAT

 

Remarks by Paul Wickham Schmidt,

Retired United States Immigration Judge

 

The Refugee Ball

 

Sixth & I Synagogue 600 I Street, N.W. Washington, DC 20001

Tuesday, January 17, 2017 from 5:00 to 9:00 PM

 

Good evening, everyone. I’m honored to be here. Lets have a big round of applause for Jason Dzubow and his staff for coming up with the idea and putting this together!

As you can probably tell, it was a battle getting into my “Jones Day Spring Prom Era Tux” tonight. As I walked out the door, my wife Cathy said: “Are you actually going to be able to breathe, let alone speak, in that thing?”

As a “regular” at the Arlington Immigration Court, Jason obviously is quite familiar with my habits. I noted that on the advance program he took the extreme precaution of not only putting me in a “10-minute slot” near the end of the program, but also adding in parentheses in big bold letters “10 minutes max.” So, I get the picture, Jason. I’m going to briefly address two things that make America great: refugees and due process.

I’m pleased to back in the old ‘hood, although it’s hard to recognize. For about twelve years in the 1970s and 1980s I worked in the General Counsel’s Office of the “Legacy INS” in the famous Chester Arthur Building – the only monument in Washington to our great 21st President –— at 425 Eye St., NW, just down the street. And, one of my most memorable accomplishments during that time was being part of the “team” that helped the Refugee Act of 1980 become law. It was a chance to make a positive difference in America’s future, indeed in the world’s future, while coming into contact with some of the finest intellects in the business: David Martin, Alex Aleinikoff, Doris Meissner, the late Jerry Tinker, and the late Jack Perkins come immediately to mind. So, I have what you might call a “vested interest” in U.S. refugee and asylum system.

I worked with refugees and their cases almost every workday for more than 21 years during my tenure as a trial and appellate judge with the United States Immigration Courts. And, I’ll admit that on many of my “off days” the challenges, stories, human drama, triumph, and trauma of refugees and refugee law bounced around in my head, much to the dismay of my wonderful wife, Cathy.

Although I have the greatest respect and admiration for the inspiring life stories of refugees and their contributions to the United States, I have never, for even one second, wanted to be a refugee. Like all of the speakers tonight, I see refugees as a huge asset to our country. It says something about us as a nation that so many great people from all over the world want to make this their home and to contribute their talents, some of which were on display here tonight, to the greatness of America. So, to all of you out there who came as refugees or asylees, thank you for coming, for your service, and for your dedication to making our great country even greater.

The other topic I want to address briefly, that is near and dear to me personally, is the overriding importance of due process in our refugee and asylum system. Each of you who came as a refugee or asylee is here because an adjudicator at some level of our system carefully and fairly gave you a chance to state your claim, listened to and reviewed the support you provided for your claim, and made a favorable decision in your case.

For some of you, that decision was made by a DHS Refugee Officer or an Asylum Officer. Others of you had to rely on different levels of our system – a U.S. Immigration Judge, the Board of Immigration Appeals, or in some cases, a U.S. Court of Appeals to have your status granted. In all of these instances you received something very precious under our Constitution: due process of law.

Unfortunately, there currently is a “due process crisis” in our overloaded Immigration Court System.   With over one-half million pending cases and waiting times of many years in some courts for final hearings to be held, our Immigration Court System is under intense pressure.

Sometimes, that results in approaches that generally have a favorable impact for individuals seeking protection.   For example, grants of Temporary Protected Status and work authorization take many cases off the Immigration Court docket and legislation such as NACARA for Central Americans or HIRIFA for Haitians permanently resolves many cases favorably at the DHS without requiring a full-blown asylum hearing before an U.S. Immigration Judge.

But, when backlogs build up and enforcement pressures mount on our Government, less benign approaches and suggestions sometimes come to the fore. Adjudicators can be pressured to do counterproductive things like decide more cases in less time, limit evidence to shorten hearings, and make “blanket denials” based on supposed improvements in country conditions.

Other times, placing more individuals in civil immigration detention is looked at as a way of both expediting case processing and actively discouraging individuals from coming to the United States and making claims for refuge under our laws in the first place. Or, moving cases though the system so quickly that applicants can’t find pro bono lawyers to represent them is sometimes incorrectly viewed as an acceptable method for shortening adjudication times, thereby reducing backlogs.

Another method far too often used for discouraging asylum claims and inhibiting due process is placing asylum applicants in DHS Detention Centers, often privately operated, with “imbedded” Immigration Courts in obscure out of the way locations like Dilley, Texas and Lumpkin, Georgia where access to pro bono attorneys, family members, and other sources of support is severely limited or nonexistent.

When these things happen, due process suffers. So, while I’m always hoping for the best, it is critical for all of us in this room to zealously protect the due process rights of all migrants and insist on full due process being maintained, and, ideally, even enhanced. This includes both supporting individuals in the system by helping them obtain effective legal representation and, where appropriate, vigorously asserting the due process rights of refugees, asylum seekers, and other migrants in the Article III Federal Courts.

Only by insisting on due process for those already in the system will we be able to insure a fair and effective system for future refugees. And, welcoming and fairly treating future refugees is a key to making and keeping America great.

So, that’s my message: due process can’t be taken for granted! It must be nurtured, protected, expanded, and vigorously and proudly asserted! Thanks for listening, good luck, do great things, and due process forever!

(Rev. 01/18/17)

 

 

 

 

Related posts:

  1. Here’s My Keynote Address From Today’s FBA Immigration Law Conference In Denver, CO!
  2. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  3. PRO PUBLICA: HOW OUR GOVERNMENT HAS CYNICALLY TURNED WHAT SHOULD BE A GENEROUSLY ADMINISTERED, LIFE-SAVING, PROTECTION-GRANTING ASYLUM SYSTEM INTO A “GAME OF CHANCE” WITH POTENTIALLY FATAL CONSEQUENCES FOR THE HAPLESS & VULNERABLE “PLAYERS!” –Play The “Interactive Version” Of “The Game” Here – See If You Would Survive or Perish Playing “Refugee Roulette!”
  4. HEIDI ALTMAN @ HEARTLAND ALLIANCE: How EOIR & Other Trump Toadies Lie & Distort “Statistics” To Support A White Nationalist Immigration Agenda!

Why The U.S. Immigration Court In NYC Is Overwhelmed: Listen & Read WNYC/NPR Senior Reporter Beth Fertig’s Report (Quoting Me) Here! Without Reforms, Due Process Is In Peril! Why Not “Give Due Process A Chance?”

http://www.wnyc.org/story/why-new-yorks-immigration-courts-are-so-busy/

“This is why experts say it’s hard to imagine Donald Trump deporting more criminal immigrants than Obama. “I think this administration already takes a fairly broad view of who is a criminal,” said Paul Wickham Schmidt, who was an immigration judge in Arlington, Virginia for 13 years.

Trump has claimed there are two to three million undocumented immigrants with criminal convictions. The government has said that number is actually just below 2 million and includes non-citizens who are in the country legally (like Bilanicz), as well as undocumented immigrants.

The government has put more resources into immigration enforcement. But Schmidt said it hasn’t done enough to help the court system meet the growing demand. There were fewer than 300 immigration judges for the whole country last year, and they were hearing more than 220,000 cases. Schmidt said even 100 additional judges would barely keep up with incoming cases, let alone the backlog.

“If you start doing the half million cases that are pending then you’re going to fall behind on the incoming cases,” he said.

. . . .

Judges have also complained that the government fast-tracked unaccompanied minors and families from Central America and Mexico who crossed the border in a “surge” a couple of years ago. These recent arrivals got priority over immigrants who had been waiting years for their hearings or trials, leading to bigger backlogs.

. . . .

The whole [Master Calendar] process took about five minutes for each case, and [Judge Amiena] Khan was scheduling future court appearances as late as August of 2018. This isn’t so bad given, that Schmidt said he was scheduling hearings for 2021 before retiring last summer. But one lawyer in court that morning, Shihao Bao, agreed the system couldn’t possibly handle more cases unless Trump wanted to “take away due process.”

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To paraphrase Chief Justice John Robert’s spot-on observation in the immigration case Nken v. Holder, 556 U.S. 418, 421 (2009), providing due process in an individual case takes time: “[S]ometimes a little; sometimes a lot.”  As I have said numerous times on this blog, the “just peddle faster approach” to due process in the U.S. Immigration Courts, unsuccessfully tried by past Administrations, isn’t going to “cut it” for due process.

And, cutting corners is sure to be more expensive to the taxpayers in the long run when Article III U.S. Courts of Appeals inevitably intervene and use their independent authority to stop the “assembly line” approach to justice and force the return of numerous cases to the Immigration Courts for “redos,” sometimes before different Immigration Judges.

I’m relatively certain that some of the Ashcroft-era cases “bounced back” by the Courts of Appeals are still kicking around the Immigration Courts somewhere without any final resolutions.  With the help of the local immigration bar and the ICE Office of Chief Counsel I finished up a fair number of these “oldies” myself during my time at the Arlington Immigration Court.  By the time the cases finally got to my Individual Hearing calendar, most of the individuals involved had qualified for relief from removal or, alternatively, had established lengthy records of good behavior, tax payment, contributions to the community, and U.S. family ties that made them “low priorities” for enforcement and resulted in an offer of “prosecutorial discretion” from the Assistant Chief Counsel.

In the Arlington Immigration Court, the Office of Chief Counsel had a strong sense of justice and practicality and was a huge force in helping to get “low priority” cases off the docket whenever possible consistent with the needs and policies of their DHS client.  But, I know that the Offices of Chief Counsel in other areas did not perform at the same consistently high level.

Rather than having enforcement efforts stymied and having to redo cases time and time again to get them right, why not invest in providing really great fairness and due process at the “retail level” of our justice system:  the United States Immigration Courts?  Getting it right in the Immigration Courts would not only save time and money in the long run by reducing appeals, petitions for review, and actions for injunctions directed to higher courts, but would also produce a due process oriented Immigration Court system we could all be proud of, that would have great credibility,  and that would serve as an inspiring example of “best practices” to other courts and even to immigration systems in other countries.  After all, the “vision” of the U.S. Immigration Courts is supposed to be:  “Through teamwork and innovation be the world’s best tribunals guaranteeing fairness and due process for all.”  Why not “give due process a chance?”

PWS

01/17/17

Related posts:

  1. Here’s My Keynote Address From Today’s FBA Immigration Law Conference In Denver, CO!
  2. “AIMLESS DOCKET RESHUFFLING” (“ADR”) IN NEW YORK — NPR’s Beth Fertig Exposes Due Process/Management Abuses By Obama & Trump Administrations!
  3. BETH FERTIG AT NPR: “ADR” Moves Into High Gear, Devastating U.S. Immigration Courts, As Half Of NY Immigration Court “Goes Dark” — U.S. Immigration Judges Become Adjuncts Of DHS Border Enforcement Program — Dockets At Interior Courts “Orbited Into Never-Never Land!”
  4. REAL DUE PROCESS MAKES A STUNNING DIFFERENCE! – NY PROJECT FINDS THAT REPRESENTED IMMIGRANTS ARE 12X MORE LIKELY TO WIN CASES!

Rappaport — Trump Will Inherit A Mess In the U.S. Immigration Courts — Former GOP Hill Staffer Peter Levinson Tells Us In One Sentence Why The Current System Is “Built To Fail” — Can Anyone Fix this Mess Before It’s Too Late For Our Country And The Millions Whose Lives And Futures Depend Our Immigration Court’s Ability To Guarantee Fairness And Deliver Due Process? Read My Commentary — “We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?” — Below!

http://thehill.com/blogs/pundits-blog/immigration/314238-our-immigration-court-crisis-will-be-trumps-lasting-headache

We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?

By Paul Wickham Schmidt

Writing in The Hill, my friend Nolan Rappaport says:

“President-elect Donald Trump will have to deal with this situation before he can begin his promised enforcement program.
Realistically, he is going to have to consider asking Congress for a legalization program to reduce the undocumented population but it does not have to be the kind of legalization program that the Democrats have been proposing.”

That makes lots of sense to me.  It will certainly help the Immigration Courts to quickly remove many “non priority” cases from the docket without compromising due process. But, it’s not a complete solution to the problems facing our Immigration Courts.

And, well-respected scholar, gentleman, and former GOP Hill Immigration Staffer Peter Levinsion succinctly tells us why just fiddling around with the administrative process within the DOJ won’t get the job done:

“”The Attorney General’s ability to review Board decisions inappropriately injects a law enforcement official into a quasi-judicial appellate process, creates an unnecessary layer of review, compromises the appearance of independent Board decision-making, and undermines the Board’s stature generally.””

Yup, folks, the U.S. Immigration Courts, including the all-important Appellate Division (the Board of Immigration Appeals, or the “BIA”), where hundreds of thousands of individuals are awaiting the fair, independent due process hearings guaranteed to them by the U.S. Constitution, are actually a wholly owned subsidiary of the chief prosecutor and law enforcement officer of the U.S. — the Attorney General.

Who wouldn’t like to own a court system where your only client — the U.S. Government — is an interested party in every single case?  Who wouldn’t, indeed, unless that court system is in the sad circumstances of the current U.S. Immigration Court system — overworked, understaffed, over-prioritized, under-appreciated, laboring under outdated systems and technology abandoned by most other courts decades ago, and generally out of control.  Other than that, what’s the problem?

The answer, as proposed by Nolan and Peter, and many others including the Federal Bar Association, the American Bar Association, the National Association of Immigration Judges, and many other nonpartisan judicial experts is an independent Article I (or even Article III) Immigration Court, including the Appellate Division.

“Impossible,” you say,  “Congress and President Trump will never go for it.  Nobody in the Washington ‘power curve’ could sell this idea.”  But, I beg to disagree.

There is one person in Washington who could sell this long overdue idea to President Trump and legislators from both sides of the aisle.  His name is Jeff Sessions.  And, he’s about to become the next Attorney General of the United Sates.

Why would Attorney General Jeff Sessions suddenly become an advocate for due process and “good government?”  Well, I can think of at least three obvious reasons.

First, being the “father” of an Article I Immigration Court would be a lasting positive contribution to our system of justice — not a bad legacy for a man who has been “on the wrong side of history” for much of his four decades of public service.  Second, it would silence many of the critics who have doubted Sessions’s claims that he can overcome his “out of the mainstream” views of the past and protect and vindicate the rights of everyone in America, particularly in the sensitive areas of immigration and civil rights.  Third, and perhaps most important, by creating an independent, credible, modern, due process oriented Immigration Court outside the Department of Justice, Sessions would pave the way for a more effective immigration enforcement strategy by the Administration while dramatically increasing the likelihood that removal orders will pass muster in the Article III Courts.

Sure sounds like a “win-win-win” to me.  I’ve observed that the majority of the time, people act in accordance with their own best interests which frequently line up with the best interests of our country as a whole.  Yes, there will always be a substantial minority of instances where people act against their best interests.  Usually, that’s when they are blinded by an uncompromising philosophy or personal animus.

I can’t find much of the latter in Senator Sessions.  He seems like a genuinely genial personality who makes it a point to get along with folks and treat them politely even when they disagree with his views.  The former could be a problem for Sessions, however.  Can he get beyond his highly restrictive outlook on immigration and adopt big-picture reforms?  Only time will tell.  But there is a precedent.

EOIR was actually created during the Presidency of Ronald Reagan.  It was two “strong enforcement types,” then INS Commissioner Al Nelson and General Counsel “Iron  Mike” Inman, Jr., part of the so-called “California Mafia,” who persuaded then Attorney General William French Smith to remove the Immigration Judges from the “Legacy INS,” and combine them with the Board of Immigration Appeals to form EOIR, with then-BIA Chairman David Milhollan as the first EOIR Director. Smith selected as the first Chief Immigration Judge a well-respected (even if not universally beloved) apolitical Senior Executive, William R. Robie, who had run the Department’s Office of Attorney Personnel Management and had a well-deserved reputation in the Washington legal community for “getting the trains running on time.”

It was one of the few times in my more that three decades in Government that I witnessed Senior Political Executives actually arguing for a needed transfer of functions and personnel out of their own agency.  Traditionally, agency heads battled furiously to hang on to any piece of “turf,” no matter how problematic its performance or how tangental it was to the agency’s mission.  But, Nelson and Inman, who were litigators and certainly no “softies” on immigration enforcement, appreciated that for victories in Immigration Court to be meaningful and to stand up on further judicial review, the Immigration Court needed to be a level playing field that would be credible to those outside the Department of Justice.

Unfortunately, the immediate improvements in due process and court management achieved by making the Immigration Courts independent from the “Legacy INS” have long since “played out.”  The system within the DOJ not only reached a point of diminishing returns, but has actually been spiraling downward over the past two Administrations.  Sadly, Nelson, Inman, Milhollan, and Robie have all died in the interim. But, it would be a great way to honor their memories, in the spirit of bipartisan reform and “smart government,” if an Article I Immigration Court were high on Attorney General Sessions’s agenda.

PWS

01/17/17

 

Related posts:

  1. Here’s My Keynote Address From Today’s FBA Immigration Law Conference In Denver, CO!
  2. HEIDI ALTMAN @ HEARTLAND ALLIANCE: How EOIR & Other Trump Toadies Lie & Distort “Statistics” To Support A White Nationalist Immigration Agenda!
  3. THE HILL: N. RAPPAPORT SAYS THAT EXPEDITED REMOVAL IS THE ANSWER TO IMMIGRATION COURT BACKLOGS – I DISAGREE!
  4. NO EXPERTISE NECESSARY! – At The “New EOIR,” Immigration Judges No Longer Need to Demonstrate Immigration Experience – Just a Willingness To Send Migrants to Potential Death, Danger, or Misery Without Due Process or Fundamental Fairness – When Your Job Is To Impose Arbitrary “Death Sentences,” Maybe It’s Easier If You Don’t Understand What You’re Really Doing!

“Full Frontal’s” Samantha Bee Discovers SHOCKING Truth: Obama & Trump Share Similar Views On Immigration Enforcement! — Also Introducing Late-Nite TV’s Newest Superstar, Retired USIJ Bruce Einhorn!

Check out this video link from last night’s Full Frontal With Samantha Bee” on TBS:

http://www.vox.com/culture/2017/1/12/14250148/samantha-bee-obama-trump-deportation

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Yup, that’s right Sam, for years the Obama Administration has been going after foreign nationals with criminal records, even though, as illustrated by the young lady you profiled, some of them are nonviolent, have paid for their crimes, have rehabilitated themselves, and are productive, law-abiding, tax-paying members of their communities — many with U.S. citizen families — by the time ICE Enforcement shows up.

Perhaps realizing that, contrary to campaign rhetoric, President Obama has already implemented a “get tough” immigration enforcement program, Trump spokesman Kris Kobach promises to expand (by Executive Fiat, mind you) the definition of “criminal” to include foreign nationals who have merely been charged or arrested, not necessarily convicted of any crime. Hey, what’s the presumption of innocence anyway?  To paraphrase another great American thinker, “If they were’t criminals, they wouldn’t be in court.”  Perhaps the next logical step will be anyone who has ever thought of violating the law or watched a TV crime show!

I think it is safe to predict that many of those who would fall within Kobach’s ever-expanding concept of “criminal” will eventually prove not to be removable under the laws of the United States.  Even now, that’s the case in a remarkable number of prosecutions brought by the Obama Administration’s ICE (“Immigration and Customs Enforcement”).

That’s why we need a strong, independent, impartial, expert United States Immigration Court (including the “Appellate Division,” the “BIA”) to insure that fairness and constitutional Due Process are always at the forefront and that any Administration’s enforcement initiatives comply with the law. And, any Administration would find that final orders of removal achieved through such a due-process oriented court system would have great credibility (sadly, not necessarily the case now and particularly in the recent past) and would stand up to judicial review by the Federal Courts of Appeals.

Finally, my friend and former colleague Judge Einhorn has proved what I’m finding out — there is lot’s of “life” out here after retiring from the Immigration Bench, and it’s pretty much “all good.” Will SNL be the next stop for Judge Einhorn?  Stay tuned!

Go Pack Go!!!!!🏈🏈🏈

PWS

01/15/17

Related posts:

  1. WASHINGTON POST: GONZO’S IMMIGRATION COURT “REFORMS” WILL CREATE “KANGAROO COURTS!” —Recent “moves to evaluate judges based on the speed with which they handle dockets that typically exceed 2,000 cases, rather than on fair adjudication, is a recipe for assembly-line injustice.”
  2. COURTSIDE HISTORY: HOW THE FOUNDING FATHERS’ RACISM ERASED A PRESIDENT’S DAUGHTER! — ALSO MY: “FRIDAY ESSAY — FROM MONTICELLO TO TRUMP, MILLER, SESSIONS, AND THE GOP WHITE NATIONALISTS”
  3. HISTORICAL PERSPECTIVE: CLYDE W. FORD @ LA TIMES: “Opinion: The immigration crisis and the racism driving it have roots in Hitler’s ‘bible’”
  4. FROM THE HEIGHTS OF KASINGA TO THE DEPTHS OF AMERICA’S DEADLY STAR CHAMBERS: Will The Biden Administration Tap The New Due Process Army To Fix EOIR & Save Our Nation? 

WSJ Editorial: Keep DACA, Can DAPA — Half Right Is Better Than All Wrong — But, Why Not Do The “Smart” Thing And Keep Them Both?

http://www.wsj.com/articles/trumps-immigration-chance-1484266731

“Donald Trump will have a busy first day repealing President Obama’s executive orders, and here’s a suggestion to lighten the work load and win some goodwill in the bargain: Don’t revoke the Deferred Action for Childhood Arrivals immigration order.

DACA is the 2012 order granting temporary safe harbor for illegal immigrants who arrived as minors with their parents. That order is distinct from the 2014 Deferred Action for Parents of Americans (DAPA) order, which exempts from deportation some four million illegal immigrants.

Mr. Trump should repeal DAPA, a sweeping usurpation of Congress’s power to write immigration laws. The Fifth Circuit Court of Appeals blocked DAPA at the request of 26 states, and the Supreme Court voted 4-4 to uphold the injunction. DAPA was among Mr. Obama’s most cynical executive actions, at once poisoning the chances for serious immigration reform while trying to pit minorities against Republicans for political purposes.

DACA is also an executive action, but its repeal now would harm innocent men and women. The order is limited to children brought illegally to the U.S. before the age of 16 who are attending school or have graduated, and who have continuously resided in the U.S. since at least 2007. About 741,000 immigrants have applied for DACA’s reprieve, which lets them obtain work permits that must be renewed after two years for a nontrivial fee of $465.

DACA applicants must undergo background checks, and they cannot have a felony or serious misdemeanor record. They can’t collect federal benefits or vote. DACA essentially offers the right to work and pay taxes in the U.S., and many applicants have served in the military. If DACA is repealed, Homeland Security’s tracking will end as tens of thousands slip into the shadows to avoid deportation to “home” countries where they are strangers.

The Fifth Circuit dismissed a legal challenge to DACA by Kansas Secretary of State Kris Kobach for lack of standing. We’d prefer if Congress codified DACA, and a bipartisan coalition of Senators wants to do so. This could be included if legislation moves this year to tighten immigration enforcement.

The main issue is fairness, as Mr. Trump has recognized. He told Time magazine in December that these young illegals were “brought here at a very young age. They’ve worked here, they’ve gone to school here.” He added that “they’re in never-never land because they don’t know what’s going to happen” and “on a humanitarian basis, it’s a very tough situation.” He’s right, which is why we hope he’s willing to forbear on DACA while a legislative solution can be worked out.

No one doubts Mr. Trump’s resolve to reduce illegal immigration, and repealing DAPA would honor that campaign promise. But minors brought to the U.S. illegally aren’t responsible for that decision. Giving them a deportation reprieve would show that Mr. Trump’s immigration policy is aimed at enforcing the law, not at punishing minorities or any ethnic group. We can’t think of another early decision that would send a comparable message of inclusion and largeness of presidential spirit.”

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I agree on DACA, disagree on DAPA.  The reasons for going forward and implementing the DAPA program are almost as strong as for retaining DACA.

DAPA’s proposed beneficiaries — parents of U.S. citizens and green card holders — probably aren’t going to be removed anyway under the DHS priorities as initially described by soon to be DHS Secretary Gen. John Kelly.  They need to be taken off overcrowded Immigration Court dockets if the Trump Administration wants to pursue its version of “criminal removal” as a priority (although I note that this is essentially the same priority as the Obama Administration had).  Instead of just leaving the DAPA folks “in limbo,” why not get them registered, documented, checked for criminal record, working legally, and make it easier for them to pay taxes, without handing out green cards or any other type of permanent status?  It would be good for America.

PWS

01/13/17

Related posts:

  1. BREAKING: WashPost: DHS Memos Detail Ramped Up Enforcement — Key Provisions: 15,000 More Agents, More Detention, Expanded Expedited Removal, Return To Mexico Pending Hearings, Target U.S. Parents Of Smuggled Kids, More Use Of Locals To Enforce Immigration Laws, PD Restricted, More IJ Televideo To Border, More Scrutiny of Credible Fear — Border Patrol Union Happy — DACA Remains (For Now) — David Nakamura Reports — Read Memos Here!
  2. MARIA SACCHETTI IN WASHPOST: INSIDE THE “NAG” (NEW AMERICAN GULAG) — CRUEL, INHUMAN, DEGRADING TREATMENT APPEARS TO BE WIDESPREAD IN SO-CALLED “CIVIL” IMMIGRATION DETENTION! — Where’s The Outrage? — Where’s The Congressional Oversight? — Why Aren’t Guys Like “Gonzo” & Homan Who Knowingly Promote Violations Of Legal & Human Rights As (Unlawful) “Immigration Deterrence” Under Investigation For Their Roles In Violating Human, Constitutional Rights!
  3. GONZO’S WORLD: HIS HIGHLY DISINGENUOUS “TRIBUTE” TO DR. KING WHILE ACTIVELY UNDERMINING MLK’S VISION OF RACIAL EQUALITY IN AMERICA OUTRAGES CIVIL RIGHTS ADVOCATES! — Hollow Words From An Empty Man!
  4. WASHINGTON POST: GONZO’S IMMIGRATION COURT “REFORMS” WILL CREATE “KANGAROO COURTS!” —Recent “moves to evaluate judges based on the speed with which they handle dockets that typically exceed 2,000 cases, rather than on fair adjudication, is a recipe for assembly-line injustice.”

Senator Grassley Asks About BIA Review At Sessions’s Confirmation Hearing

http://immigrationimpact.com/2017/01/12/jeff-sessions-affirms-anti-immigrant-views-confirmation-hearing/

Joshua Briesblatt over at Immigration Impact gives us this interesting nugget from the Sessions Confirmation hearing:

“Lastly, Senator Grassley asked Senator Sessions if he would review all the decisions coming out of the Board of Immigration Appeals (BIA). The Attorney General has the authority to unilaterally revoke decisions of the BIA. Much of current asylum law is based on decisions by the BIA including those that determine what groups must receive protection from persecution in their home. As Attorney General, he would have the authority to make asylum vastly more difficult for those around the world who flee to the United States to avoid violence. Senator Sessions said that he “does appear” to have that authority and that he has “not thoroughly studied” the issue.”

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Interesting.  Was Chairman Grassley (R-IA) actually trying to suggest that this is something Senator Sessions should undertake as AG?  Actually, I think that if and when he gets around to studying it, AG Sessions will find that he does, in fact, have authority to review any BIA decision. But, if he reviewed all of them — that would be about 35,000 per year — I don’t think he’d have much time left over for anything else, including sleeping and eating.  Most AG’S review, at most, one or two BIA decisions per year.

Still, it indicates a fundamental due process problem with having the Immigration Courts and the BIA lodged in the Department of Justice.  As the chief law enforcement officer and litigator for the U.S., the Attorney General has no business reviewing any BIA decision — it’s a colossal conflict of interest, even by today’s evolving ethics standards.  That’s why the Immigration Court System must, at some point, become truly independent which means removing it from the DOJ and establishing it as some type of independent entity — an independent agency or and Article I or Article III Court.  Until then, true due process in the Immigration Courts may be elusive.

Notably, notwithstanding lots of recent publicity about the exploding docket and the problems crippling the nation’s Immigration Courts, neither Chairman Grassley nor Senator Sessions seemed to be particularly “up” on the issue or to have much idea of the reality of life in the Immigration Courts.  That’s not very encouraging.

PWS

01/13/17

Related posts:

  1. Why Is The U.S. Immigration Court So Totally Screwed Up? — Sure, Bad Laws & Inadequate Resources Are Endemic Problems — But, Trying To Run A Due Process Court System As An Agency Of A Political Department Which Is Clueless About Effective Judicial Administration Is The Overriding Reason This System Is “Built To Fail!”
  2. ADMINISTRATION TRASHES RULE OF LAW, DENIES DUE PROCESS AT U.S. SOUTHERN BORDER!
  3. ASSEMBLY LINE “JUSTICE” IS “INJUSTICE” — U.S. Immigration Judges Are NOT “Piece Workers,” & Fair Court Decisions Are Not “Widgets” That Can Be Quantified For Bogus “Performance Evaluations!” — Are Three Wrong Decisions “Better” Than One Right Decision?
  4. TRAC DATA: IMMIGRATION COURTS DISCRIMINATE AGAINST DETAINED INDIVIDUALS AND MEXICAN NATIONALS IN PROCEDING WITHOUT COUNSEL!

Send In The Marines — Gen. Kelly Looks Like He Has The “Right Stuff” For DHS!

http://immigrationimpact.com/2017/01/11/john-kelly-said-immigration-policy-confirmation-hearing-dhs-secretary/

Maurice Belanger at Immigration Impact reports on Kelly’s immigration views:

“First, Kelly believes that much of the current migration from Central American countries has its roots in drug consumption in the U.S., which drives violence. His view is that the ultimate solution to the migration crisis, in addition to reducing American drug use, is to support governments in the region attempting to restore public safety and economic opportunity. He also stated that he believes that part of the reason migrants are coming to the U.S. is because they carry the notion that once they arrive, they will be able to stay. In his pre-hearing questionnaire, he noted that senior leaders of Central American countries told him that, “If you do not start sending them back to their country of origin quickly and in large numbers they will never stop making the trek north.”

Completely missing from the discussion however was what the U.S. should do in the meantime while addressing the violence and other factors pushing people out of Central America. As well as, what are America’s obligations to individuals arriving from the region seeking safety and security?

There was also considerable discussion of low morale among Border Patrol employees to which Kelly said that he believed “the number one thing right now would be in accordance with the law, let the people who are tasked to protect the border do their job.” However, there was no examination of assertions that Border Patrol agents are “prevented” from doing their job.

Kelly also demonstrated mixed views on enforcement of immigration law. For example, in an exchange on the issue of so-called “sanctuary cities,” Kelly said, “I understand maybe the perspective of some of the local leaders, but I do think the law is the law and I think the law has to be followed.” Yet, in another exchange with Senator Kamala Harris of California about DACA recipients and their families, Kelly said that, “I think law abiding individuals would in my mind, with limited assets to execute the law, would probably not be at the top of the list.”

However the more specific the questions got on immigration the more Kelly appeared out of his depth and unprepared to provide answers. For example, Senator Harris asked if Kelly would honor the government’s commitment not to use information collected on DACA recipients for enforcement purposes. Kelly responded that he had not been involved in “the entire development of immigration policy that is ongoing,” and only promised to “be involved in those discussions” if confirmed.

Finally, in response to a question by Michigan’s Senator Gary Peters concerning the establishment of a government database on Muslims in the U.S. Kelly responded, “I don’t agree with registering people based on ethnic or religion or anything like that.”

Over the course of the hearing, senators from both parties praised Kelly’s service to the country and he is likely to be confirmed. His views on the complicated set of laws and policies that govern our immigration system are still largely unformed. Hopefully, his need to better understand the policies in place, will translate into engagement with stakeholders concerned with immigrants and immigration.”

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From what I have heard and read, General Kelly is a highly competent, thoughtful, well-organized leader who has the ability to inspire those around him.  I’ve also read that he takes human rights responsibilities very seriously, and is willing to get input from a broad range of individuals — not just “insiders.”  To me, that’s exactly what DHS needs: some perspective, discipline, and mission focus.

Yes, he doesn’t have an immigration background — most Generals don’t.  But at least he comes at it from a professional law enforcement and national security angle — not as an advocate of reducing legal immigration or treating undocumented individuals like criminals.

And, he has some outstanding talent to advise him on immigration matters among the executive ranks of the career public servants at DHS. Lori L. Scialabba, Deputy Director of USCIS (former Chair of the BIA and Deputy General Counsel of the “Legacy INS”) and Raphael Choi, Chief Counsel of ICE in Arlington, VA immediately come to mind as accomplished managers with “big picture” views.  I’m sure there are many others who can help General Kelly formulate reasonable and effective immigration policies.

My one concern from reading this particular clip was General Kelly’s repetition of the “urban myth” that the way to stem the flow of Central American refugees is by “quick returns.”  That’s been the Obama Administration policy, and well as the policy of all other Administrations when faced with border incursions.  It has demonstrably failed during the Obama Administration, as it consistently has for the last four decades and will continue to do so.

That’s because it’s based on the false premise that most arrivals can, or should be, returned.  In reality, however, a substantial number, probably the majority, of those coming are fleeing violence, rape, death threats, and torture, and are therefore likely to have valid claims for protection under U.S. law if the proper legal standards are fairly and at least somewhat uniformly applied (something which, sadly, does not always happen).

Consequently, they can’t be sent home, and they are going to keep coming to apply for protection they are entitled to under our laws.  And, throwing them in detention isn’t going to deter them either — that’s been proved.  But it will certainly run up the taxpayers’ costs while eroding both our commitment to human rights and our moral standing as a nation.

Trying to reduce the violence and improve conditions in the Northern Triangle is important.  It was mentioned by Gen. Kelly, but it’s a “long haul,” not a short term, solution.

In the short run, a larger, more inclusive and realistic overseas refugee processing program in or near the Northern Triangle, combined with use of available mechanisms such as Temporary Protected Status (“TPS”) and Deferred Enforced Departure (“DED”) to grant temporary protection short of asylum are likely to be more effective in promoting orderly border enforcement without adding to the workload of the already overwhelmed Asylum Offices and Immigration Courts.

We’re not going to be able to stop desperate individuals from coming without committing large scale violations of both domestic law and international treaty obligations.  But, we should be able to manage the flow so that the “bad guys” get screened out and returned while the others can remain temporarily without going into the asylum system while we’re trying to sort out and improve the situation in the Northern Triangle.  Perhaps, we also could reach agreements with other stable democracies in the Western Hemispheres to share the protection burden and distribute the flow.  It’s not an easy problem, and there are no easy or great solutions.

I know these aren’t then “quick fixes” or “silver bullet” solutions that folks want to hear about.  They also won’t satisfy  those who want to shut to doors to migration.

But, four decades of working on “quick fixes” from all sides — law enforcement, private sector, and judicial — tells me that we need a better, more practical, and more humane approach.  To just keep repeating the same failing policies over and over and expecting them to achieve success is, well, just plain . . . .

PWS

01/12/17

 

 

Related posts:

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  2. INCONVENIENT TRUTH: HALEY SWEETLAND EDWARDS @ TIME TELLS WHAT TRUMP, MILLER, COTTON, SESSIONS, & THEIR WHITE NATIONALIST GANG DON’T WANT YOU TO KNOW: Human Migration Is A Powerful Force As Old As Human History; It’s A Plus For Receiving Nations; It Won’t Be Stopped By Walls, Jails, Racist Laws, Or Any Other Restrictionist Nonsense; But, It Can Be Intelligently Controlled, Channeled, Harnessed, & Used For The Benefit Of The U.S. & The Good Of The Migrants! — “But to maximize that future good, governments must act rationally to establish humane policies and adequately fund an immigration system equipped to handle an influx of newcomers.”
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News From The United States Immigration Court In Arlington, VA — Judge Emmett D. Soper Joins Arlington Immigration Court — More Judges Planned For The Future!

Dateline Arlington, VA, Jan. 12, 2017

The United States Immigration Court in Arlington, VA announced recently that newly appointed U.S. Immigration Judge Emmett D. Soper will be starting to hear cases in February.   Judge Soper most recently was an Associate General Counsel in the EOIR Office of General Counsel in Falls Church, VA.  Before that, he was an Attorney Adviser with the Office of Chief Immigration Judge.  If my recollection is correct, he was also a Judicial Law Clerk in the U.S. Immigration Court in Buffalo, NY. Congratulations, Judge Soper!  Congratulations Arlington!

Judge Soper is a “good guy,” and should be a great fit in Arlington.  He will join Judge John M. Bryant, Judge Robert P. Owens, Judge Lawrence O. Burman, Judge Roxanne C. Hladylowycz, Judge Rodger C. Harris, Judge Thomas G. Snow, Judge Quynh Vu Bain, Judge Traci Hong, and Judge Karen Donoso Stevens, bringing the total number of Judges in Arlington to ten, the largest compliment ever.

Unfortunately, however, because the Arlington Immigration Court currently has only eight courtrooms with public access, Judge Hong and Judge Donoso Stevens have been largely “stashed in the back room” sitting in interior euphemistically named “TV Courts” — which also serve as chambers — hearing cases from other Immigration Courts.  I am not aware of what docket Judge Soper will be handling and whether he will be “visible” or “hidden.”

Unless I’m missing something, which is sometimes the case, when all ten Arlington Judges are present, two will always have to be doing interior TV Court to other cities. Additional space has been located at 1901 South Bell, and my understanding is that the Court plans to open new publicly accessible courtrooms, obviously on another floor, this spring, thus enabling all Arlington Judges to work on Arlington cases, something that happened only rarely during my thirteen year tenure there.

The local AILA Chapter has also been informed that the Arlington Immigration Court plans to expand to sixteen Immigration Judges by the end of 2017.  This would be a most welcome development, given the current docket with in excess of 30,000 pending cases.

Apparently, the new court design will include publicly accessible courtrooms for 16 Judges with another two interior courtrooms which can be used only for TV Court to other locations.  The latter seems rather curious to me.  Why take up court space with courtrooms that can’t be used on the Arlington docket? But, hey, I was only an Immigration Judge.  What do I know about space and planning?

Obviously, expansion  plans will depend on new Attorney General Jeff Sessions and also on whether the U.S. Immigration Courts will be exempt (as they certainly should be, but who knows at present) from the “hiring freeze” that President Trump has promised to impose when he takes office.  Maybe somebody at EOIR already knows the answer.  But, I haven’t seen any public announcement.  Stay tuned.

PWS

01/12/17

Related posts:

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  3. BREAKING: From “The Hill” — Sessions Nomination As AG Approved By Senate Judiciary Committee — Moves To Full Senate Where Approval Is A Foregone Conclusion!
  4. Zoe Tillman on BuzzFeed: U.S. Immigration Courts Are Overwhelmed — Administration’s New Enforcement Priorities Could Spell Disaster! (I’m Quoted In This Article, Along With Other Current & Former U.S. Immigration Judges)

“AYUDA — MAKING AMERICA REALLY GREAT, EVERY DAY” — Meet A Spectacular Nonprofit Legal & Social Services Organization That “Walks The Walk and Talks The Talk” In The DC Metro Area — Read My Recent Speech Here!

AYUDA — MAKING AMERICA REALLY GREAT, EVERY DAY

 

January 11, 2017

 

Verizon Building

 

1300 Eye St., N.W.

 

Washington, D.C.

 

Remarks By Retired United States Immigration Judge Paul Wickham Schmidt

 

Good evening. Thank you Christina,[1] for that wonderful introduction. Thank you, Michael,[2] for extending your hospitality in Verizon’s “state of the art” training center. And, of course, thank you Arleen[3] for inviting me, and for all that you and AYUDA do for our community and for our nation.

 

Even more important, thanks to all of you here for your continued support and promotion of AYUDA’s essential mission — to help hard-working individuals in our community help themselves, through legal assistance and a variety of educational and social support programs. You are AYUDA, and without your continuing support, encouragement, and active participation there would be no AUYDA and hence no place for those vulnerable individuals to seek assistance. Our community and our nation would be immeasurably poorer if that happened.

 

By coincidence, I began my professional career in immigration law in 1973, the year AYUDA was founded. On a personal level, and I know that this touches on only one narrow aspect of AYUDA’s ambitious program, I want to thank all of you for the unwavering support, assistance, and consistent professional excellence that AYUDA provided to the U.S. Immigration Court in Arlington, Virginia during my 13-year tenure as a judge, and, of course, continuing on after my retirement.

 

The sole role of an U.S. Immigration Judge is to provide fair, impartial hearings that fully comply with the Due Process Clause of the United States Constitution to individuals whom the Department of Homeland Security (the “DHS”) has charged with being removable from the United States. Without competent legal representation of the individual before the court, known as a “respondent,” the job of insuring due process can be totally daunting. With dedicated professional groups like AYUDA coming to the defense, my task of conducting fair hearings magically went from “daunting” to “doable.”

 

Representation makes a real difference in the lives of individuals. Represented individuals succeed in securing relief in Immigration Court at a rate of at least five times greater than those appearing without representation. But, for some of the most vulnerable populations, such as “recently arrived women with children,” bureaucratic lingo to describe actual human beings seeking protection from rampant violence in Central America whose removal has been “prioritized” in Immigration Court, the “success differential” is simply astounding: 14 times!

 

I am honored tonight to be in the presence of two of the “real heroes – or, more properly, heroines,” of due process at the Arlington Immigration Court: your own “Hall of Famer,” the incomparable Anya Sykes,[4] and your amazingly talented newly appointed — great choice guys –Executive Director, Paula Fitzgerald. Both were “regulars” in my courtroom.

 

Quite simply, Anya and Paula save lives. Numerous hard working individuals and families in our community, who are contributing at the grass roots level to the greatness of America, owe their very existence to Anya, Paula, and AYUDA.

 

For example, last year alone, AYUDA helped a remarkable 1,900 individuals resolve more than 3,500 matters in our legal system. And, Immigration Court is just the “tip of the iceberg.” Much of the work was done with the United States Citizenship and Immigration Services, with domestic violence victims in local courts, and through AYUDA’s superstar Social Services and Language Services branches.

 

I know we all want to get back to main event – eating, drinking, and being merry. So, I’m going to limit myself to one “war story” about my time with Anya and Paula in court.

 

As some of you probably know, there is a wonderful law enacted some years ago known as “NACARA.” It really could be a model for future laws enabling earned membership in our national community. NACARA has allowed thousands of individuals in our community who decades ago fled violence in Nicaragua, El Salvador, and Guatemala, and have lived law abiding, productive lives here for many years, often in valid Temporary Protected Status, to obtain green cards and get on the track for U.S. citizenship and full participation in the vibrant political life of our community and our country.

 

The basic NACARA criteria were fairly straightforward, and most individuals were able to have their applications granted at the Asylum Office of the USCIS.   But, as with any mass adjudication program, there was group of so-called “dog cases” left over at the end.

 

Most of those involved individuals who had served or were believed to have served with the Salvadoran military or Civil Patrol during the civil war that raged in the 1980s. If you remember, the U.S. supported the Salvadoran government during that civil war, and some of the individuals who served in the Salvadoran Army actually received training or instruction at military installations in the United States.

 

At that time, international human rights groups claimed that the Salvadoran government and military were engaging in large scale human rights violations, many directed against innocent civilians, in an effort to suppress guerilla insurgents. Our Government denied, downplayed, or outright ignored most of these claims and refused asylum to almost all Salvadorans on the grounds that no persecution was occurring.

 

Times change, however, and at some point somebody in our Government actually looked at the evidence and agreed, long after the fact, that the Salvadoran government and military had committed large scale “persecution of others,” even though many of the “others” had been denied asylum in the U.S. based on inability to establish that persecution.

 

By the time I arrived at the Arlington Immigration Court, the DHS was taking the position that nearly all individuals connected with the Salvadoran military were presumed to be “persecutors,” and therefore should be denied NACARA unless the individual could prove, by credible evidence, that he or she did not, in fact, engage in persecution decades earlier during the civil war. These cases were routinely declined at the Asylum Office and “referred” to our court for re-adjudication.

 

As you might imagine, such cases are extremely complicated, requiring the individual not only to have detailed knowledge of the structure and activities of the Salvadoran military during the civil war but also specific knowledge of what individual units and soldiers were doing at particular times, places, and dates, and to be able to coherently account for and corroborate their own activities at those times.

 

Most of those “referred” were hard working, tax paying, law-abiding individuals who had lived in the U.S. for decades, and supported their families, but did not have the necessary funds to pay for good lawyers familiar with, and willing to handle, this type of sophisticated case. The chance of an individual being able to successfully present his or her own case was approximately “zero.” Most were completely bewildered as to why service with the U.S.-supported government of El Salvador, once considered a “good” thing, was now a “bad thing,” requiring mandatory denial of their NACARA applications.

 

This is where talented NGO lawyers like Paula and Anya stepped in. With their help and legal expertise, notwithstanding the passage of decades, individuals were able to document, corroborate, and testify convincingly about their “non-persecutory” activities during the civil war. I recollect that every such NACARA case handled by AYUDA before me eventually was granted, most without appeal or with the actual concurrence of the DHS Assistant Chief Counsel.

 

As a direct consequence, hard working, productive, law-abiding, tax-paying individuals remained in the community, continued to support their families, and, with green cards in hand, could now find better work opportunities and get on the path to eventual U.S. citizenship and full participation in our national community. This is “Lifesaving 101” in action, and Anya, Paula, and AYUDA are the “lifesavers.”  If there were an “Arlington Immigration Court Hall of Fame,” they would certainly be in it. In addition to their outstanding services to AYUDA’s clients, Anya and Paula are inspiring mentors and role models for lawyers just entering the field.

 

In closing, I’ve always tried to keep five important values in front of me: fairness, scholarship, timeliness, respect, and teamwork. Dedicated individuals like Anya and Paula, and great organizations like AYUDA, embody these important values.

 

And, beyond that, these are your values. Your investment in AYUDA and its critical mission is an investment in social justice and the values that have made our country great and will continue to do so into the future.

 

Thanks for coming, thanks for listening, and, most of all, thanks for your investment in AYUDA and turning your values into effective action that saves lives, builds futures, and insures the continuing greatness of America.

 

 

 

 

[1] Christina M. Wilkes, Esquire, Partner, Grossman Law Firm, LLC – Chair, AYUDA Board of Directors.

[2] Michael Woods, Esquire, Vice President and Associate General Counsel, Verizon — Director, AYUDA Board of Directors.

[3] Arleen Ramirez Borysiewicz, Director of Program Initiatives, AYUDA.

[4] Unfortunately, Anya was unable to attend. But, almost everyone in the room was mouthing “Anya” when I said the word “heroine” so I realized that she was “there is spirit” and proceeded accordingly. Anya Sykes was inducted into the AYUDA Hall of Fame in 2013.

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  3. PRO PUBLICA: HOW OUR GOVERNMENT HAS CYNICALLY TURNED WHAT SHOULD BE A GENEROUSLY ADMINISTERED, LIFE-SAVING, PROTECTION-GRANTING ASYLUM SYSTEM INTO A “GAME OF CHANCE” WITH POTENTIALLY FATAL CONSEQUENCES FOR THE HAPLESS & VULNERABLE “PLAYERS!” –Play The “Interactive Version” Of “The Game” Here – See If You Would Survive or Perish Playing “Refugee Roulette!”
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Experts Share Secrets Of Effective Cross Examination In Immigration Court!

My good friend and former colleague Judge Dorothy Harbeck of the United States Immigration Court, Newark New Jersey and Dr. Alicia Triche have written a terrific short article on cross examination in Immigration Court, “Terms so Plain and Firm as to Command” for the upcoming January/February 2017 Edition of The Federal Lawyer, published by the Federal Bar Association.

As a former trial judge, there were few things more frustrating than spending an afternoon with an attorney who was unable to present his or her case in a concise, effective manner so that it kept my attention (and made it easy for me to follow the story and take notes).  You also have to think about the interpreter; a convoluted compound question in English will be virtually incomprehensible after translation.

So thanks to Judge Harbeck and Dr. Triche for helping to make judicial afternoons shorter, more productive, and, hopefully, more enjoyable for all.

The full article is reproduced below (alas without pictures and some of the fancy formatting) by permission from judge Harbeck.

PWS

01/11/17

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

Terms so Plain and Firm as to Command

Assent: Preparing and Conducting Optimal

Direct Examination of the Respondent
by Hon. Dorothy Harbeck and Dr. Alicia Triche
Immigration Law Update
Hon. Dorothy Harbeck is the eastern regional vice president of the National Association of Immigra- tion Judges (NAIJ) and a federal Immigration Judge stationed in Elizabeth, N.J. Dr. Alicia Triche is sole proprietor at Triche Immigration Law, a Memphis, Tenn. based private practice that focuses on appeals, research support for fellow attorneys, and refugee cases. In 2013, Dr. Triche received a D.Phil. in international refugee law from Oxford University.
[T]o place before mankind the common sense of the subject, in terms so plain and firm as to com- mand their assent.—Thomas Jefferson, describing the purpose of the Declaration of Independence1

Courtroom drama is a mainline artery in U.S. culture. From Atticus Finch to the ill-fitting glove, legendary trial-tales etch themselves into our blood- streams, solidifying the core value of the rule of law. The centerpiece of these trials is direct examination, during which the skillful attorney is expected to draw the best possible answers from a story-filled witness. Immigration Court is also a part of this landscape. “Individual calendar hearings” go forward with great frequency, and, though often truncated compared to their federal counterparts, they do usually feature that great legal classic—direct examination. Still, despite its legendary importance, nothing in immigration trial practice is more overlooked than direct examination.

It is well known that the federal rules of immigra- tion do not apply in immigration proceedings. Instead, “immigration judges have broad discretion to conduct and control immigration proceedings and to admit
and consider relevant and probative evidence.”2 As a practical matter, however, certain types of evidence should be avoided as much as possible—most notably, leading questions. The basic tools of direct examina- tion are open-ended, non-leading questions that call for a narrative response. The lawyer should effectively blend into the background, allowing the witness to be the featured act. It is the respondent, not the attorney, who must present the coherent and logical statement of facts that is essential to the court’s decision.

In order to make that happen, both the attorney and the witness must be utterly prepared. Both must know the story that is being elicited—including the weak parts of the claim, which should be brought forward and addressed upfront. The attorney should have a list of every required element of the claim and know which facts are material to each. The witness must understand their own story and the trial process,
be ready to work with an interpreter, know how
to listen to the question posed and how to answer (truthfully) no more than the questioned asked, and be ready to remain calm on stand. All of this takes specific practice and thorough preparation. Simply telling the witness that they will be questioned on the stand is not enough. The attorney must ensure that everyone is thoroughly prepared.

When both attorney and witness know and under- stand the story to be told, questions can be formatted properly for direct examination. A leading question
is one that suggests an answer; contains an answer within it; or, in the strictest application of the category, calls for a “yes or no” response. Non-leading questions are open-ended and begin with “who,” “what,” “when,” “where,” and “why,” as opposed to “are,” “did,” “will,” “won’t,” and “isn’t.” Here is an example of the same
set of standard opening questions, in both leading and non-leading form:

Non-Leading:

What is your name?

Anna Ahmatova.

What is your birthday?

Sept. 19, 1962.

Where were you born?

Leningrad, USSR. Now, it’s St. Petersburg, Russia, again, just like when my grandmother was born there.

Are you a citizen of any country or countries?

Yes.

What country are you a citizen of?

Russia. Used to be a Soviet citizen.

Are you a citizen of any other country?

USSR.

Leading:

Your name is Anna Ahmatova, right?

Yes.

And were you born on Sept. 19, 1962?
January/February 2017 • THE FEDERAL LAWYER • 13
Yea.

In St. Petersburg, Russia?

No, in Leningrad, USSR.

But you told the ICE officer it was St. Petersburg, right?

Yes.

And Russia is the only country you are a citizen of, right?

Right.

Leading questions cannot be avoided altogether, but they must be avoided whenever possible because they compromise the accuracy of the evidence and the fundamental fairness of proceedings. And, even among non-leading questions, some are better than others. In particular, there is a difference between a “narrative” and a “specific” approach. Consider the following two sets of questions.

The first set:

Have you ever been convicted of a crime?

Yes.

What happened?

I had a DUI.

When was this?

June 15, 2003.

Where was the conviction?

Sevierville, Tenn.

What happened?

I was out drinking at a bar with my friends after work. This was before I met my girlfriend. I got pulled over because I was speeding, and I got a DUI. I went to jail for a few days, but I paid all my fines now.

Here is the second set:

Have you ever been convicted of a crime?

Yes.

How many times?

One.

What month and year did this conviction occur?

June 2003.

In what county and state did this conviction occur?

Sevierville, Tenn.

What sort of penalty, if any, did you receive?

A few days of jail time.

Was any person injured as a result of your drinking and driving that night?

No.

The first is the “narrative” approach, allowing the witness to tell her own story about how the DUI occurred. The second approach asks mostly non-leading, but highly specific questions designed to make sure the essential facts of the claim are elicited with efficien- cy. From a persuasive standpoint, the narrative approach is usually preferred. However, not every witness is able to tell their story effectively in that context. It is up to the attorney to be flexible and make sure that all essential facts are elicited in the manner that best works for the individual.

Direct examination should also be crafted so as to avoid ob- jections. Though there are no set rules of evidence, immigration regulations do specifically require that all testimony be “material and relevant.”3 In addition, proceedings must be fundamentally fair
and comport with due process.4 Objections in immigration court are generally guided by those two standards. Information must not be more prejudicial than probative, and a “relevant” statement has a tendency to make the existence of a fact “more or less probable.”5 Objections to relevancy are common (if not commonly sustained) and counsel should be ready to articulate the materiality of any ques- tion being asked. Other immigration court objections include: calls for an unqualified opinion; compound question; calls for speculation; mischaracterizes earlier testimony; calls for a legal conclusion; and coaching of the witness. If a witness is being harassed, that objection can also be stated for the record, with a specific description of the objectionable conduct.

When direct examination metes out its purpose, the respondent’s story is clear, complete, and, above all, persuasive. Says clinical pro- fessor David Chavkin: “If we think about the stories that have stayed with us over time, about the stories that have been most persuasive, these stories do not focus solely on a single critical event or a single moment in time…. Instead, they ordinarily represent a detailed, chronological narration of interrelated events with a beginning point, a connected point, and a termination point.”6 But, most importantly, to be legally effective, that chronology must be presented in its prop- er legal format: in terms so plain and firm, as to command assent. 

The views expressed here do not necessarily represent the official position of the U.S. Department of Justice, the attorney general, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of the NAIJ. This article is solely for educational purposes, and it does not serve to substitute for any expert, professional and/or legal representation and advice.

Endnotes

1Letter from Thomas Jefferson to Henry Lee, May 8, 1825, available at tjrs.monticello.org/letter/436 (last visited Oct. 10, 2016).
This column is based upon a trials skills presentation by Judge Harbeck, “Probative and Fundamentally Fair: Testimony in U.S. Immigration Court” (Seton Hall Law School and New Jersey State Bar Association) and Judge Harbeck’s article, “The Commonsense of Direct and Cross Examinations in Immigration Court,” New Jersey Lawyer Magazine #296, expected publication Jan. 2017.

2Matter of Interiano-Rosa, 25 I&N Dec. 264, 265 (BIA 2010), citing § 240(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(l) (2006); 8 C.F.R. §§ 1003.36, 1240.1(c), 1240.7(a) (2010).
38 C.F.R. § 1240.7(a) (2016).
4See, e.g., Reno v. Flores, 507 U.S. 292, 306 (1993); see also Mathews v. Diaz, 426 U.S. 67, 77 (1976); Kwong Hai Chew v. Colding, 344 U.S. 590, 596-598 (1953).
5FED. R. EVID. 401.8.
6DAVID F. CHAVKIN, CLINICAL LEGAL EDUCATION: A TEXTBOOK FOR LAW SCHOOL CLINICAL PROGRAMS 97 (LexisNexis 2002).
14 • THE FEDERAL LAWYER • January/February 2017

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