"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
July 2, 2020
EOIR Announces New Chief Immigration Judge
FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Tracy Short as the Chief Immigration Judge of EOIR’s Office of the Chief Immigration Judge.
Biographical information follows:
Tracy Short, Chief Immigration Judge
Attorney General William Barr appointed Tracy Short as the Chief Immigration Judge in June 2020. Chief Judge Short received a Bachelor of Arts in 1990 from Texas Christian University and a Juris Doctor in 1995 from the Louisiana State University Law Center. Chief Judge Short began his legal career in 1995 as a judicial law clerk for Judge James M. Dozier, Jr., of the Third Judicial District Court of Louisiana. From 1997 to 1998, he served as a public defender, representing indigent criminal defendants in Louisiana state courts, while also practicing civil law. From 1998 to 1999, Chief Judge Short was an assistant attorney general for the Louisiana Department of Justice where he represented the State of Louisiana in civil litigation. From 1999 to 2000, he also served as a judicial law clerk for Justice Chet D. Traylor of the Louisiana Supreme Court. From 2000 to 2001, Chief Judge Short was a judicial law clerk for Judge Robert B. Maloney of the U.S. District Court for the Northern District of Texas. From 2001 to 2003, Chief Judge Short litigated removal cases on behalf of the Department of Justice as trial attorney with the former Immigration and Naturalization Service in Dallas. From 2003 to 2005, Chief Judge Short served as Assistant Chief Counsel in the Dallas office of U.S. Immigration and Customs Enforcement’s (ICE) Office of the Principal Legal Advisor (OPLA). In 2005, he was appointed as a Special Assistant U.S. Attorney (SAUSA) in the U.S. Attorney’s Office (USAO) for the Northern District of Texas, where he handled complex civil litigation involving ICE. In 2007, Chief Judge Short was appointed as a SAUSA in the USAO for the Eastern District of Texas, where he litigated criminal cases. From 2007 to 2009, he served as the Acting Deputy Chief Counsel and Senior Attorney in OPLA’s Dallas office. As a Senior Attorney, he litigated significant and complex immigration cases and served as the lead attorney for matters involving customs law and criminal investigations. From 2009 to 2015, he served as Deputy Chief Counsel in OPLA’s Atlanta office, where he managed litigation operations and client services in a multi- state field office. From 2015 to 2017, Chief Judge Short served as Counsel to the U.S. House of Representatives, Committee on the Judiciary’s Subcommittee on Immigration and Border
Communications and Legislative Affairs Division
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Security. From January 2017 to June 2020, he served as the ICE Principal Legal Advisor and, later, as a Senior Advisor to the ICE Acting Director. He is a member of the Louisiana State Bar Association and the State Bar of Texas.
— EOIR —
The Executive Office for Immigration Review (EOIR) is an agency within the Department of Justice. EOIR’s mission is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and administrative hearings. EOIR is committed to ensuring fairness in all the cases it adjudicates.
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The final paragraph above is, of course, a sick joke.
I predict that we will hear more from the legal and the human rights communities about this latest abuse of authority by a corrupt White Nationalist regime committed to a program of crimes against humanity.
Due Process Forever!
This November, vote like your life depends on it. Because it does!
First you see scenes from classic movies of wizened judges, brave lawyers, and contemplative juries, but then the video lays out its grim theme: This is not what happens in America’s immigration courts.
These courts are subject to political influences, a narrator explains. They are driven by political messages, and bound by rules based on the “whims” of whoever is in power in Washington, D.C., she says. They don’t provide the blind justice that Americans expect. What they provide is assembly-line justice.
Who is making these claims? A hard-line political or fringe legal group? Hardly. The video is from the National Association of Immigration Judges (NAIJ), the union that represents the nation’s 460-plus immigration judges—reasonably well-paid lawyers, many of whom come from government and law enforcement backgrounds.
Nor is the video the first such salvo from the judges’ group, which has lobbied Congress and spoken out frequently about what’s gone exceptionally wrong with the immigration courts under the Trump administration. Such criticisms, the judges say, are the reason that the government sought last August to decertify their union, the only such effort taken by the Trump administration against a federal workers’ labor organization.
“They are trying to silence the judges by silencing their union,” says Paul Shearon, head of the 90,000-member Professional and Technical Engineers union, to which the NAIJ has been affiliated for the past 30 years. He worries that busting a federal union may be the “next step” in the Trump administration’s actions meant to weaken all federal unions.
Shearon is confident, however, that the union will win its fight against decertification when the local level of the Federal Labor Relations Authority (FLRA) issues its ruling. He is “not so optimistic,” though, that it will prevail at the higher level of the FLRA, where two of three boardmembers are Trump appointees and “clearly political players.” Though the government has sought to speed up a ruling, the judges do not know when a decision is likely—but they expect one before the November election.
The judges’ complaints are many.
. . . .
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Read the rest of the article and view the video “The Immigration Courts: Nothing Like You Have Imagined.”
Should be required viewing for every Justice, Federal Judge, U.S. Legislator, and law student.
You don’t need a law degree to know that something purporting to be a “court” where a notoriously corrupt and dishonest political prosecutor is directing “his judges” to deny asylum and speed up the assembly line is unconstitutional under the Fifth and Fourteenth Amendments. Yet, every day, life-tenured Court of Appeals Judges rubber stamp the results, often effectively death sentences, of this Star Chamber without questioning the obvious defects. Why?
America’s need for judicial reform and establishing scholarship, courage, integrity, fairness, commitment to due process and human rights, practical problem solving, and humanity as the hallmarks of judicial service runs much deeper than the Immigration “Courts.” If we want to achieve “equal justice for all” as required by our Constitution, but not being uniformly delivered by our judiciary, we need better judges at all levels of our Federal Judiciary.
That starts with throwing out Trump and the GOP Senate that has stuffed our Article III Judiciary with unqualified right-wing ideologues, intentionally tone-deaf to the legal and human rights of refugees, immigrants, people of color, women, the poor, working people, and a host of others whose humanity they decline to recognize. But, that is by no means the end of the changes necessary!
IMAGINE: How Would YOU Like To Be Judged in America’s Star Chambers?
By Paul Wickham Schmidt
Special to Courtside
June 14, 2020
Imagine yourself in a foreign land. You don’t speak the language, and you don’t know the rules. You’re arrested for a minor crime. You think you have a plausible defense. But, it could result in capital punishment. You are detained in squalid conditions. You’re hauled before a court. The bond is ludicrously high, set by the prosecutor and judge under rules they make up as they go along. You don’t have a lawyer because you can’t afford one. The “judge” is appointed by the chief prosecutor. The judge herself is a former prosecutor. The prosecutor makes the rules.
If you win, the prosecutor can appeal to a body stacked in his or her favor. If you lose, you can appeal to a tribunal hand-selected by the chief prosecutor because of their harshness and votes to convict more than 90% of the time. If, against those odds, you still win acquittal, the chief prosecutor can take over the case, rewrite the rules, and change the verdict to guilty. In the meantime, you’ll remain imprisoned in the “Gulag.”
Doesn’t sound like much fun does it? Am I describing something out of a third-world dictatorship or a Kafka novel?Absolutely not! This system operates right here in our United States of America, right now.
It’s chewing up and spitting out the lives of men, women, and even children who are supposed to receive due process and fundamental fairness and instead get the exact opposite. It’s enabled by Supreme Court Justices, Federal Judges, legislators, and public officials who won’t stand up for the legal and Constitutional rights of migrants and asylum seekers in the face of grotesque Executive abuses.
It’s called the U.S. Immigration Court. It exists in a “Constitution & humanity-free zone.” It’s run by Chief Prosecutor Billy Barr and his subordinates at the U.S. Department of Justice (“DOJ”). It’s not really a “court” at all, by any rational definition.
No, it’s a national disgrace and an intentional perversion of the constitutional right to due process, fundamental fairness, and human dignity. It’s also an unmitigated management disaster where DOJ-promoted“Aimless Docket Reshuffling” (“ADR”) has built an astounding 1.4 million case backlog with cases stretching out beyond the next Administration, even after doubling the number of “judges.” More judges means more backlog in this wacko system.
In the words of my friend and fellow panelist, Ira Kurzban, “this is not normal.” Yet complicit public officials, legislators, and life-tenured Federal Judges continue to “normalize” “America’s Star Chambers” and their biased, race-driven nativist attack on our Constitution and our humanity!
It needs to change. But, all three branches of our government currently lack the courage, leadership, and integrity to make “equal justice under law” a reality rather than just a slogan.
The three things I would do right up front are:
First, remove the Immigration Courts from the DOJ and create an independent, Article I U.S. Immigration Court as recommended by ABA President Judy Perry Martinez, the FBA, the NAIJ, AILA and almost all other true experts in the field.
Second, return the Immigration Courts to their previous noble mission of “through teamwork and innovation, be the world’s best tribunals guaranteeing fairness and due process for all.” End the disgraceful, unlawful, unconstitutional use of the Immigration Courts as a tool of DHS Enforcement, a deterrent, and a weaponized enforcer of a nativist, anti-human-rights agenda.
Third, replace the current highly-biased, one-sided judicial hiring system with a merit-based hiring process that properly weighs and credits demonstrated fairness, scholarship in immigration and human rights, experience representing asylum seekers and other migrants, and involves meaningful public input in judicial selections. Since 2000, the current skewed system has favored prosecutors and other “government insiders” by a ratio of more than 9-1, and has totally excluded private sector candidates from appellate judgeships at the Board of Immigration Appeals (“BIA”).
Our Constitution requires “equal justice for all.” To achieve it, we need public officials, legislators, Supreme Court Justices, and other Federal Judges who actually believe in it. That means real change in all three branches of our failing (and worse) Federal Government. Due Process Forever; Corrupt Officials, Feckless Legislators, and Complicit Courts, Never!
This is derived from my virtual panel presentation before the ABA Section on International Law on June 8, 2020.
This morning the Supreme Court issued orders from the justices’ private conference last week. The court added one new case to its merits docket for the term that begins in October. The justices once again did not act on two groups of high-profile petitions – one involving gun rights and the other involving qualified immunity – that they considered last week.
With the grant in Niz-Chavez v. Barr, the justices added another immigration case to their docket for next term. At issue in the case is the kind of notice that the government must provide to trigger the “stop-time rule,” which stops noncitizens from accruing the time in the United States that they need to become eligible for discretionary relief from deportation. Congress passed the “stop-time rule” to keep noncitizens from taking advantage of lengthy delays in deportation proceedings to continue to accrue time. Under the rule, a noncitizen’s time in the United States, for purposes of relief from deportation, ends when the government sends him a “notice to appear” containing specific information about a scheduled removal proceeding. The question that the justices agreed to decide today is whether all the necessary information must be provided in a single document in order to trigger the stop-time rule, as Agusto Niz-Chavez, who came to the United States from Guatemala in 2005, contends, or whether the government can trigger the rule by providing the information in multiple documents.
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Our Round Table has filed amicus briefs on this issue in a number of similar cases, although not in this particular case, which originated in the 6th Circuit.
At issue here is the BIA’s precedent in Matter of Mendoza-Hernandez, 27 I. & N. Dec. 520 (BIA 2019). There, in a now-rare en banc decision, the BIA majority basically “flicked off” the Supremes’ decision in Pereira v. INS, 138 S. Ct. 2105 (2018) and allowed the DHS to remedy a defective statutory Notice to Appear (“NTA”) with a later-issued EOIR notice of hearing providing the missing information to “fill in the blanks” from the original defective notice.
In an even more unusual and potentially career-shortening move, six of the BIA’s then 15 Appellate Immigration Judges filed a strongly-worded dissent accusing their majority colleagues of ignoring both the words of the statute and the Court’s Pereira decision. Perhaps not surprisingly, three of the dissenting judges have since retired from the BIA and a fourth, the Vice Chair, was passed over for Acting Chair in a highly unusual personnel move by the DOJ, which controls the BIA. (One of the primary reasons for having a designated “Vice Chair” is to be the “Acting Chair” in the absence of the Chairman.) In their places, Barr has appointed some of the most notorious hard-line asylum denying Immigration Judges in the nation.
The Supremes have thus far tiptoed around the glaring unconstitutionality of a so-called “appellate tribunal” that is appointed, wholly controlled by, and answers to the chief prosecutor, the Attorney General. Not surprisingly, upon discovering the Constitution-nullifying power of a “captive court system,” that is not a court at all under any common understanding of the term, the Administration has leveraged it to the max as a tool for their White Nationalist anti-immigrant agenda. Indeed, all the recent BIA and Attorney General precedents have ruled in favor of the DHS position, even where statutory language, Article III court rulings, prior precedents, and common sense strongly supported the opposite results.
And, many Courts of Appeals have continued to fictionalize that the highly politicized and “weaponized” BIA is an “expert tribunal” entitled to “Chevron deference.” Any true immigration law expert would say that proposition is absurd. Yet, it conveniently furthers the causes ofboth “judicial task avoidance” and the White Nationalist agenda of the Administration.
Because the BIA now occupies itself not with fair and impartial, expert decision-making, but mostly with keeping the “deportation express” running and insuring that DHS prevails over the legal claims of migrants and asylum seekers to fair and humane treatment under the law, the Supremes are finding themselves in the middle of the “statutory and regulatory nitty gritty” of immigration law that was supposed to be the province of a competent and impartial BIA.
While that has occasionally, as in Pereira, worked to the advantage of individuals seeking justice, for the most part, the Supremes have been willing enforcers of the Administration’s abrogation of immigration laws without Congressional participation and “Dred Scottification” of “the other” in violation of our Constitution, and indeed, in violation of both international conventions and fundamental human decency.
Think of how much better and more efficiently the immigration system could run with a constitutionally-required independent Immigration Court utilizing fair and impartial judges selected on the basis of expertise and reputation for fairness and scholarship rather than commitment to DHS enforcement goals.Think of how much better off our society would be if the Supremes stood up for equal justice for all, rather than enabling a far-right would-be authoritarian scofflaw regime following aracially-biased agenda of dehumanization, degradation, and deportation.
EOIR’s Data Release on Asylum So Deficient Public Should Not Rely on Accuracy of Court Records
TRAC has concluded that the data updated through April 2020 it has just received on asylum and other applications for relief to the Immigration Courts are too unreliable to be meaningful or to warrant publication. We are therefore discontinuing updating our popular Immigration Court Asylum Decisions app, and will take other steps to highlight this problem[1]. We also wish to alert the public that any statistics EOIR has recently published on this topic may be equally suspect, as will be any future reports the agency publishes until these major data deficiencies are explained and rectified[2].
The EOIR’s apparent reckless deletion of potentially irretrievable court records raises urgent concerns that without immediate intervention the agency’s sloppy data management practices could undermine its ability to manage itself, thwart external efforts at oversight, and leave the public in the dark about essential government activities. Left unaddressed, the number of deleted records will compound each month and could trigger an expensive data crisis at the agency. And here the missing records are the actual applications for asylum, and how the court is handling them. This is a subject on which there is widespread public interest and concern.
EOIR Data Irregularities Approaching Point of No Return
Despite TRAC’s appeals to the EOIR, Immigration Court records continue to disappear each month. TRAC initially reported 1,507 missing applications for relief in our October 2019 report, which grew to 3,799 missing applications the following month. We wrote EOIR Director James McHenry providing a copy of the 1,507 missing applications asking for answers on why these records were missing from their files. We wrote again when the number of missing applications more than doubled the following month. These letters were met with silence. Not only have these cases disappeared entirely, they have not been restored in any subsequent data releases and the number of missing relief applications continue to grow. (See the final section for a short explanation of TRAC’s methodology.)
Alarmingly, the number of relief applications that were present in the March 2020 data release but were missing in the April release jumped to 68,282. This is just the number of records that disappeared over a single month. It does not include the ever growing number of applications that had previously disappeared month-by-month. As was true in past months, roughly four out of five of the records in the March 2020 release that disappeared from April’s release concerned applications on which the court had rendered its decision, including many cases in which the immigration judge had granted asylum as well as other forms of relief.
To put that into perspective, the number of missing cases just last month is more than the 63,734 asylum applications received by the Immigration Courts during all of FY 2015. If these applications are missing because they have been deleted from the Court’s own master files, the magnitude of the task of restoring just this single month’s destruction—assuming this is even possible—is enormous. To go back and restore the cumulative number of relief applications that went missing during previous months will obviously be even greater.
In fact, so many asylum decisions were dropped from EOIR’s April release that the cumulative number of asylum decisions went down, not up, despite asylum decisions continuing to be made. The volume of disappearing records has reached a scale that little faith can be placed in the factual accuracy of reports published by the EOIR based on its data.
The EOIR’s escalating data problems should raise dire concerns for Congress, policymakers and the public who routinely put their faith in federal agencies to provide complete and accurate information about their work. Indeed, the management of the court system itself, including the quota system recently imposed on immigration judges, presupposes the accuracy of the court’s own records. It is deeply worrisome that the EOIR and the Department of Justice appear unconcerned with ensuring that their own records are accurate and uncommitted to providing the public with accurate and reliable data about the Court’s operations.
TRAC Urges EOIR to Take Immediate Action
To date, the EOIR has not responded to TRAC’s requests for an explanation of these disappearances, nor has the EOIR responded to TRAC’s FOIA requests for records that would shed light on this matter.
Therefore, TRAC has written a third letter to Director McHenry reporting our findings of 68,282 new disappearances and we are again seeking a commitment from him to take the steps needed to address the problem. More urgently, we are asking that the EOIR immediately preserve—rather than destroy—all back-up tapes or other media in the hopes that records apparently improperly deleted from the Court’s master files might be restored. We assured Director McHenry that we would be more than happy to work cooperatively with the agency to help them better ensure that going forward the public is provided with more accurate and reliable data about the Immigration Court’s operations.
How EOIR’s Data Mismanagement Impacts TRAC’s Immigration Court Tools
TRAC’s mission is to provide the public with accurate, reliable, unbiased, and timely data on the operations of the federal government, and to ensure that the public is informed about changes that impact our data.
The EOIR’s disappearing records fall under the data related to applications for relief. The record on the existence of the court case itself is present, but for a growing number of these cases there now is no record that the immigrant ever applied for relief, or the court’s decision on that application. One of the key moments in the life of the case—including applications for asylum—is missing entirely. As a direct consequence TRAC does not have the information needed to provide reliable or meaningful updates on the court’s handling of applications for asylum and must therefore discontinue updating its asylum decision app.
While each of the other files in EOIR’s monthly data releases also have the same problem of records disappearing, the magnitude of these disappearances has not reached the levels seen with applications for relief. While still worrisome, these levels have not yet climbed to where we believe we can no longer use the information we receive. Thus, we are continuing to update the rest of our other Immigration Court apps. We continue to closely monitor the situation, while we urge EOIR to explain why records keep disappearing. We further continue to ask the agency to take the steps needed to rectify the situation.
TRAC will continue to retain all previous and future EOIR data shipments for research purposes.
How did TRAC Identify the EOIR’s Data Irregularities?
The Executive Office for Immigration Review (EOIR) oversees the nationwide Immigration Court system, including more than 60 physical Immigration Court locations (as well as many more remote hearing locations including teleconference sites and ad hoc “tent” courts), hundreds of Immigration Judges, and millions of immigration cases that pass through the court system. The EOIR records information on each case and tracks various proceedings, filings, hearings and other aspects of each case in a large database. This database is central to the Court’s ability to manage its workload, prepare and publish reports for the public, and respond to queries from Congress about its operations. It is also used in implementing new practices, including the recent decision to impose new evaluation criteria for Immigration Judges.
As a result of TRAC’s ongoing FOIA requests, the EOIR releases a large batch of anonymized Immigration Court data each month that provides a snapshot of a great deal of the information recorded in this database on the handling of each case. In short, TRAC does not create data on the EOIR; rather, TRAC’s uses the EOIR’s own data. This data is the foundation for TRAC’s Immigration Court data tools which help ensure transparency and accountability for the American public.
TRAC used this data to precisely identify deleted records. While the information TRAC receives does not identify individuals, EOIR’s computer system assigns a unique computer sequence number to each case that identifies it. Because TRAC receives comprehensive data shipments from the EOIR each month that include these unique computer-assigned tracking numbers, TRAC can match each record received in the previous month with the same corresponding record in the following month’s release. Each release is also cumulative. That means it should include every record from the previous month plus every new record that has been added to the database over the course of the current month. As a rule, records should therefore never disappear[3].
When a record that was present is not included in the next month’s release, TRAC refers to these as missing or disappearing records. Because humans maintain most databases including EOIR’s, mistakes will occur. Therefore no database is ever perfect. So a few disappearing records might be expected. However, as is the situation here, concern is warranted whenever significant numbers of records disappear. Indeed, alarm bells should ring as the number of disappearing records grow. This situation means the data can no longer be trusted to reliably track the court’s proceedings.
Footnotes
[1] EOIR monthly releases consist of a series of tables covering different aspects of its workload. While each of these tables continue to have disappearing records each month, the magnitude of these missing records varies by table. For example, in the table that tracks each case before the court there were 228 cases present in March that disappeared from the April release, compared with 41,233 new cases that were added. While the problem of disappearing case records remains very troubling for the case table along with each of the other EOIR tables, TRAC believes that their magnitudes do not rise to the same level as the problem for applications for relief where the data now are so unreliable and misleading that they do not warrant the public placing any trust in them. At this time, we therefore are continuing to update our other Immigration Court apps while alerting the public to this continuing serious problem that affects the reliability of EOIR data releases more generally.
[2] For an example of a recent EOIR publication that may contain significant data errors, see the graph and table reporting total asylum applications through March 2020, which was generated using data from April 2020: https://www.justice.gov/eoir/page/file/1106366/download.
[3] Even when a data entry error is made, the database has special codes to indicate that a record should be disregarded because it was a data entry error so that rarely is it necessary to actually delete records.
EOIR isn’t willing and able to do its only function: provide fair, impartial, and timely adjudications to asylum seekers and other migrants while following best judicial practices.
But they do have time to waste taxpayers’ money on nonsense like the chart at this link:https://www.justice.gov/eoir/file/1217001/download. This was obviously designed to further the Trump regime’s false narrative regarding the merits of asylum claims. While the chart is largely incomprehensible, misleading nonsense, what stands out is this:
At the end of an abusive process during which the law has been illegally skewed against asylum seekers and “judges,” most of whom are not experts in asylum law and who have never even represented an asylum seeker, are encouraged to deny meritorious claims for protection, against the odds, over 25% (12 of 47) of those who actually get through this biased dysfunctional mess still get asylum!
It’s reasonable to believe that under a fair system, with impartial decision makers who have expertise in asylum law, and without the interference of biased, overtly anti-asylum politicos like Sessions and Barr, asylum seekers would succeed the majority of the time, as they did before efforts by both the Obama and Trump Administrations to “ratchet down” asylum grants so that the EOIR system would serve DHS Enforcement as a “deterrent” to those seeking protection.
Obviously, the DOJ is afraid that under a fair, independent judicial system that actually employed judges who were experts in asylum law and who had real life experience representing asylum applicants, the majority of claims would be granted, thereby exposing the fraud, dishonesty, and misconduct involved in the present anti-asylum system.
It’s a national disgrace that is actually harming and sometimes killing those deserving of protection under our law.
Due Process Forever! Dishonest, Unethical, Incompetent, and Intentionally Biased “Courts” Never!
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NASRALLAH v. BARR, ATTORNEY GENERAL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 18–1432. Argued March 2, 2020—Decided June 1, 2020
Under federal immigration law, noncitizens who commit certain crimes are removable from the United States. During removal proceedings, a noncitizen who demonstrates a likelihood of torture in the designated country of removal is entitled to relief under the international Conven- tion Against Torture (CAT) and may not be removed to that country. If an immigration judge orders removal and denies CAT relief, the noncitizen may appeal both orders to the Board of Immigration Ap- peals and then to a federal court of appeals. But if the noncitizen has committed any crime specified in 8 U. S. C. §1252(a)(2)(C), the scope of judicial review of the removal order is limited to constitutional and legal challenges. See §1252(a)(2)(D).
The Government sought to remove petitioner Nidal Khalid Nasral- lah after he pled guilty to receiving stolen property. Nasrallah applied for CAT relief to prevent his removal to Lebanon. The Immigration Judge ordered Nasrallah removed and granted CAT relief. On appeal, the Board of Immigration Appeals vacated the CAT relief order and ordered Nasrallah removed to Lebanon. The Eleventh Circuit declined to review Nasrallah’s factual challenges to the CAT order because Nasrallah had committed a §1252(a)(2)(C) crime and Circuit precedent precluded judicial review of factual challenges to both the final order of removal and the CAT order in such cases.
Held: Sections 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to a CAT order. Pp. 5–13.
(a) Three interlocking statutes establish that CAT orders may be re- viewed together with final orders of removal in a court of appeals. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 authorizes noncitizens to obtain direct “review of a final order of re-
2
NASRALLAH v. BARR Syllabus
moval” in a court of appeals, §1252(a)(1), and requires that all chal- lenges arising from the removal proceeding be consolidated for review, §1252(b)(9). The Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) implements Article 3 of CAT and provides for judicial review of CAT claims “as part of the review of a final order of removal.” §2242(d). And the REAL ID Act of 2005 clarifies that final orders of removal and CAT orders may be reviewed only in the courts of appeals. §§1252(a)(4)–(5). Pp. 5–6.
(b) Sections 1252(a)(2)(C) and (D) preclude judicial review of factual challenges only to final orders of removal. A CAT order is not a final “order of removal,” which in this context is defined as an order “con- cluding that the alien is deportable or ordering deportation,” §1101(a)(47)(A). Nor does a CAT order merge into a final order of re- moval, because a CAT order does not affect the validity of a final order of removal. See INS v. Chadha, 462 U. S. 919, 938. FARRA provides that a CAT order is reviewable “as part of the review of a final order of removal,” not that it is the same as, or affects the validity of, a final order of removal. Had Congress wished to preclude judicial review of factual challenges to CAT orders, it could have easily done so. Pp. 6– 9.
(c) The standard of review for factual challenges to CAT orders is substantial evidence—i.e., the agency’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” §1252(b)(4)(B).
The Government insists that the statute supplies no judicial review of factual challenges to CAT orders, but its arguments are unpersua- sive. First, the holding in Foti v. INS, 375 U. S. 217, depends on an outdated interpretation of “final orders of deportation” and so does not control here. Second, the Government argues that §1252(a)(1) sup- plies judicial review only of final orders of removal, and if a CAT order is not merged into that final order, then no statute authorizes review of the CAT claim. But both FARRA and the REAL ID Act provide for direct review of CAT orders in the courts of appeals. Third, the Gov- ernment’s assertion that Congress would not bar review of factual challenges to a removal order and allow such challenges to a CAT order ignores the importance of adherence to the statutory text as well as the good reason Congress had for distinguishing the two—the facts that rendered the noncitizen removable are often not in serious dis- pute, while the issues related to a CAT order will not typically have been litigated prior to the alien’s removal proceedings. Fourth, the Government’s policy argument—that judicial review of the factual components of a CAT order would unduly delay removal proceedings— has not been borne out in practice in those Circuits that have allowed factual challenges to CAT orders. Fifth, the Government fears that a
Cite as: 590 U. S. ____ (2020) 3 Syllabus
decision allowing factual review of CAT orders would lead to factual challenges to other orders in the courts of appeals. But orders denying discretionary relief under §1252(a)(2)(B) are not affected by this deci- sion, and the question whether factual challenges to statutory with- holding orders under §1231(b)(3)(A) are subject to judicial review is not presented here. Pp. 9–13.
762 Fed. Appx. 638, reversed.
KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.
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Score at least a modest victory for the NDPA over the “Deportation Railroad.”
Once again the Round Table 🛡⚔️ intervened with an amicus brief on the side of justice. Here’s a report from Judge Jeffrey Chase:
Hi All: Our Round Table filed an amicus brief in Nasrallah v. Barr. The Supreme Court issued it’s 7-2 decision in the case today, and we were on the winning side.
Kavanaugh wrote the decision, and was joined by Roberts, Ginsburg, Breyer, Sotomayor, Kagan, and Gorsuch. Thomas wrote a dissenting opinion that was joined by Alito.
The decision reverses the 11th Cir. and holds that federal courts may review factual issues as well as legal and constitutional issues in CAT appeals filed by noncitizens with criminal convictions falling under 8 C.F.R. section 1252(a)(2)(C).
Gibson Dunn assisted us with the drafting of the brief.
Best, Jeff
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Retired Immigration JudgesKnightess of the Round Table
And, of course, as Jeffrey notes, we couldn’t have done it without help from our pro bono heroes 🥇 over at Gibson Dunn! Many, many thanks!
Great that Justice Kavanaugh, Chief Justice Roberts, and Justice Gorsuch “saw the light” on this one! Not sure how often it will happen in the future, but gotta take what we can get.
Also, given the “haste makes waste” policies thrust on EOIR by the DOJ under Trump, and the significant number of fundamental legal and factual errors made by the BIA, judicial review is likely to turn up additional instances of substandard decision-making.
DOJ memo offered to buy out immigration board members
The buyouts were only offered to Board of Immigration Appeals members hired before Trump took office
The Justice Department memo came from the director of the Executive Office of Immigration Review, a Justice Department agency. (Bill Clark/CQ Roll Call file photo)
The Justice Department offered buyouts to pre-Trump administration career members on its influential immigration appeals board as part of an ongoing effort to restructure the immigration court system with new hires who may be likely to render decisions restricting asylum.
An internal memo viewed by CQ Roll Call shows that James McHenry, the director of the Executive Office of Immigration Review, offered financial incentives to longtime members of the Board of Immigration Appeals to encourage them to retire or resign. The buyouts and “voluntary separation incentive payments” were offered to “individuals whose positions will help us strategically restructure EOIR in order to accommodate skills, technology, and labor markets,” according to the April 17 memo.
EOIR is the Justice Department agency that oversees the Board of Immigration Appeals, a 23-member body that reviews appealed decisions by immigration judges and sets precedent.
According to two knowledgeable sources at EOIR who declined to be identified for fear of retaliation, the memo was sent to the nine board members appointed under previous Republican and Democratic administrations, before Trump took office. No one accepted the buyout offers, according to both sources.
CQ Roll Call reached out for comment on the memo to McHenry, EOIR and the Justice Department and received a statement Wednesday saying that “the Department does not comment on personnel matters.”
“Any insinuation that politicized hiring has become ramped up is inconsistent with the facts,” the statement said.
The memo sheds light on an ongoing debate over BIA hiring. Immigration judges, lawyers and former EOIR employees say the Trump administration has used the board to help meet its goal of reducing immigration, while government officials say they have simply streamlined a lengthy hiring process that was always subject to political judgments.
In October, CQ Roll Call reported on documents showing the Justice Department had tweaked the hiring process to fill six new vacancies on the board with immigration judges with high asylum denial rates and a track record of complaints. Additional memos that CQ Roll Call wrote about earlier this month shed further light on these rule changes that enabled fast-tracking of those and more recent hires.
The three most recent hires to the board include an immigration judge who denied 96 percent of the asylum requests before him and had a history of formal complaints about “bias and prejudice.” The vacancies were created after a flurry of career board members left the BIA.
“EOIR does not select board members based on prohibited criteria such as race or politics, and it does not discriminate against applicants based on any prohibited characteristics,” the Justice Department said in its statement. “All board members are selected through an open, competitive, merit-based process that begins with a public advertisement on the Office of Personnel Management’s (OPM) federal employment website.”
Recent changes to EOIR hiring procedures “have made the selection process of board members more formalized and neutral,” the department said.
While buyouts are typically offered to soften the blow of workforce reductions, the two sources at EOIR said the agency’s offers were made so that the BIA could be reconfigured entirely, with the positions of “board members” replaced by those of “appellate immigration judges.” The differences go beyond title, extending to pay ranges and leave policy. Appellate immigration judges also hear cases at both the trial and appellate levels, creating potential conflicts of interests.
“Many board members have viewed themselves as appellate immigration judges for years, and EOIR first proposed such a designation in 2000,” according to the Justice Department statement. “Elevating trial-level judges to appellate-level courts is common in every judicial system in the United States.”
The American Immigration Lawyers Association and other critics said the buyout offer is the latest example in a series of moves that have undermined the neutrality of the immigration court system. They point out that BIA is already housed under a law enforcement agency, the Justice Department, whose leadership may have a stake in the outcome of the court process.
“The administration is trying to further politicize the immigration court system by packing the appellate bench and is seeking to make room for more handpicked judges with this buyout,” Benjamin Johnson, AILA’s executive director, told CQ Roll Call.
“These latest actions reveal the severe impact of our nation’s immigration system being housed under the Attorney General and only underscore the real need to create an independent immigration court,” he said.
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The refusal of the “holdovers” to take the “buyout” just forced the DOJ politicos to use a different “strategy:” creating additional “appellate judgeships” and “packing” them with appointees with established records of hostility to asylum seekers and the due process rights of respondents.
This presents an interesting historical comparison with an earlier GOP Administration’s program for promoting an anti-immigrant agenda at the BIA. Under Bush II, Ashcroft arbitrarily “cut” the size of the BIA to get rid of the vocal minority of judges who dared to speak up (usually in dissent) for the rights of asylum seekers and other migrants to due process, fundamental fairness, and humane treatment. I was one of those judges “exiled” from the BIA during the “Ashcroft Purge of ‘03.”
Fortunately, I got a “soft landing” just down the hill from the “EOIR Tower” at the Arlington Immigration Court where I remained on the bench and (mostly) “below the radar screen” for the following 13 years. And, yes, I was offered a “buyout” in the form of “early retirement,” which would have been a rather bad financial deal for me at the time.So, I rejected it, and eventually got a much better “deal.”
The DOJ’s claim that the current farce is a “merit selection system” is beyond preposterous. But, as long as Congress and the Article IIIs won’t stand up to Trump’s blatant abuses of due process, the “de-professionalization” of the career Civil Service, and the dehumanization of the “other” before the law (“Dred Scottificfation”), the charade will continue.
Of course the problem isn’t, as EOIR would lead you to believe, that some “trial judges” are elevated to the appellate bench. It’s which “trial judges” are being “rewarded” for their records of hostility to asylum seekers, respondents, and their attorneys.
Also, in what has become essentially a “closed system” of Immigration Judges, staffed almost exclusively by government attorneys overwhelmingly with prosecutorial backgrounds, the “elevation” of existing trial judges, basically tilts the system heavily in favor of DHS and against respondents. Indeed, some fine Immigration Judges with broader experience including private practice, who would have made superior Appellate Immigration Judges in a true merit-based system, were instead forced off the bench by the demeaning, biased, restrictionist policies implemented at EOIR.
Also, having served as both a trial and appellate judge, I know that the “skill sets” are related, but by no means identical. Not all good trial judges make good appellate judges and vice versa. While it’s certainly to be expected that some trial judges will be elevated to the appellate bench, that should not be the sole source of appellate judges.
Appellate judging requires scholarship, collegiality, creativity, writing, and a broad perspective that many talented private advocates, academics, and NGO lawyers possess in abundance. The same holds true of the Article III Appellate Bench. From the Supremes on down, it’s basically in various degrees of failure to uphold the rule of law and the Constitution against the attacks by the Trump regime.
It’s a case of far too many former District Court Judges, former prosecutors, and right-wing “think tankers,” and far too few individuals who have litigation, legal, and life experience gained from representing those who actually come before the courts. The Supremes in particular are badly in need of folks with a broader, more practical, more humane perspective on the law.
The institutional failure of today’s Supremes in the face of concerted Executive tyranny threatens to collapse our entire justice system and take our democratic republic down with it. The whole Article III judicial selection system needs careful reexamination and reforms lest it fall into the same type of institutional dysfunction and disrepute as today’s Immigration “Courts” (which aren’t “courts” at all in any normal sense of the word).
Of course, Trump, Barr, and the rest of their anti-democracy gang would love to make the captive, biased, Executive-controlled Immigration “Courts” the “model” for the Article III Judiciary. And, John Roberts and the rest of the “JR Five” seem all too eager to accommodate them. The perception already is out here that Roberts & Co. “work for” Trump Solicitor General Noel Francisco in somewhat the same way as Immigration “Judges” work for Billy Barr. Until Roberts and his gang show the courage to stand up to Trump and enforce the legal, constitutional, and human rights of “the other” in our society, that perception will only deepen.
As generations of African-Americans discovered following the end of Reconstruction, Constitutional and legal rights are meaningless in the face of biased and cowardly legislators, judges, and other public officials who simply look the other way, join the abuses, or “go along to get along” with treating “the other” unfairly under the law.
Due Process Forever, Captive & Complicit Courts, Never!
Washington, DC – According to the Roll Call story published May 27, 2020, Executive Office for Immigration Review (EOIR) Director McHenry sent the remaining members of the Board of Immigration Appeals (BIA) a buy-out memo offering them financial compensation in exchange for early retirement or resignation. This memo was sent on April 17, 2020, during the global public health crisis, and highlights the continuing push by this administration to manipulate the functions of the BIA, the appeals court located within EOIR.
AILA Executive Director Benjamin Johnson stated, “This administration has taken numerous steps to alter the composition and role of the BIA, all in an effort to gain more control over the immigration courts and influence court decisions. In recent months, it came to light that the EOIR Director was attempting to pack the immigration bench with more appointees who have among the lowest asylum grant rates in the country. Now, he is attempting to winnow existing members from the BIA and replace them with a roster of Appellate Immigration Judges, despite congressional and stakeholder concerns about politicization of the BIA. Last year, these new appellate judge positions were created out of thin air. They appear to have nearly identical job functions as the BIA members but the Appellate Immigration Judges can adjudicate both trial and appellate level cases at the same time and can be reassigned away from the BIA at the whim of the EOIR Director.”
“This effort shows a complete disregard, or at the very least a failure to appreciate how our judicial system is supposed to work to provide a fair day in court. In 2003, Attorney General Ashcroft purged several members of the BIA, a political move that was severely criticized and ultimately undermined the credibility of our court system. These recent efforts by this administration make it even clearer that our nation urgently needs an immigration court system that is independent, fair and impartial.”
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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.
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The BIA is a travesty, to be sure. But, an even bigger travesty is the continued “deference” given to a biased, unqualified, non-expert tribunal and its political handlers by the Article III Courts! Under Marbury v. Madison, it’s the job of the Article III Courts to say what the law is. To “defer” to the BIA, a body that currently functions not like a independent, expert tribunal, but has become a “shill” for DHS Enforcement and an adjunct of White Nationalist White House Policy Advisor Stephen Miller, is a disgraceful case of judicial task avoidance and dereliction of duty.
If nothing else, the ongoing disaster at the BIA points to an “inconvenient truth” in America’s justice system: We need better, more informed (particularly in the areas of immigrants’ rights and human rights), more courageous judges at all levels of the Federal Judiciary if we are to survive as a democratic republic where the rule of law and equal justice under law have meaning!
When reviewing asylum applications of late, I find myself thinking of the popular 1970s TV show “Columbo.” After interviewing a suspect, it’s title character, a disheveled homicide detective, would famously stop on his way out to ask “just one more thing.” What he asked next was always critical to proving the case.
Asylum claims are increasingly reliant on nuance. For example, in Hernandez-Chacon v. Barr, the Petitioner’s statement that she had resisted an attempted rape by one of the gang members “because [she had] every right to” was a significant reason for the Second Circuit’s conclusion that her subsequent persecution was on account of an imputed political opinion.
Similarly, in Lopez-Ordonez v. Barr, the Fourth Circuit’s finding of imputed political opinion relied largely on the Petitioner, while a soldier in the Guatemalan army, uttering a warning that he would “call the human rights right now” if a fellow soldier carried out his intent of harming a baby.
And in Orellana v. Barr, the Fourth Circuit found support for the Petitioner’s assertion that the Salvadoran government was unable or unwilling to provide protection from her domestic partner in her testimony that she would call the police when her partner would become abusive and lock herself in a room with her children while the partner paced outside with a machete, but that the police would not show up for hours, and sometimes not show up at all.
In the above examples, the critical statements came out during testimony in court. But under pressure to meet unrealistic case completion goals, immigration judges are increasingly suggesting that respondents forego testimony and rely on their written applications, or waive direct examination and reserve the right to redirect. In some instances, judges have imposed time limits on testimony. There has been even greater pressure to forego the testimony of other witnesses and instead rely on their written submissions alone.
This pressure to make asylum adjudication more administratively efficient conflicts with the process through which such claims develop. While the written evidence explains the claim, an unanticipated response to a probing question may provide a eureka moment that alters the legal analysis. In my first year on the bench in 1995, a response from a female asylum seeker uttered with a certain degree of conviction caused me to make a connection to a 1993 decision of the Third Circuit in Fatin v. INS. That decision, authored by then-circuit judge Samuel Alito, recognized a particular social group consisting of both gender and a refusal to conform to the government’s gender-specific laws. After weeks of subsequent research and analysis, the case before me ended in a grant of asylum, a result that never would have occurred without the extensive testimony that elicited that one critical utterance.
While EOIR management’s present focus is on efficiency, it bears noting that claims for asylum and related reliefs have life-or-death consequences. For example, a February report of Human Rights Watch documented 138 Salvadorans who were murdered after being deported from the U.S., and 70 other deportees who were subjected to beatings, sexual assault, or extortion. And those are just the statistics for one country.
It is therefore extremely important to find a way to anticipate the details that might turn a case from a denial to a grant, and to include those details in the written asylum application. And this can be best achieved through the Columbo method of asking “just one more thing.”
Examples:
Domestic violence claims
Typically, applications describe the brutal mistreatment suffered by the asylum-seeker. But in Matter of A-B-, the Attorney General claimed a lack of evidence that the persecutor “was aware of, and hostile to” a particular social group. The A.G. rather attributed the motive for the attack to the persecutor’s “preexisting personal relationship with the victim.”
In such cases, ask “just one more thing” to establish that the abusive partner was at least partially motivated to harm the asylum seeker because of her gender (which should in turn be argued to constitute her particular social group). For example, the respondent in A-B- described how her ex-husband believed “a woman’s place was in the home, like a servant.” This statement established (1) that the persecutor was aware of a particular social group, consisting of women, and (2) his own hostility towards such group, through his relegating its members to a subservient role in society.
Additional “Columbo” questions would inquire whether the persecutor’s verbal abuse included gender-specific derogatory terms; how he generally spoke of or treated other women in his life; and whether he would have inflicted the same forms of abuse on e.g. his brother, a close male friend, or a male roommate. The answers may well establish that the asylum seeker’s inclusion in a social group defined by her gender was at least “one central reason” for her being targeted for abuse.
“Just one more thing” should also be asked to flesh out imputed political opinion as a possible motive, as in the above-cited Hernandez-Chacon case.
Family-based claims
These claims often arise in the gang context, when gang members unable to target a particular individual target family members of that individual instead. Although courts for decades have held family to be the quintessential example of a particular social group for asylum purposes, two recent administrative decisions have complicated these claims. First, the BIA in Matter of L-E-A- dismissed the threat to the family member as being motivated by financial considerations and not by an actual animus towards the family. The Attorney General then weighed in, questioning whether a family enjoys the required distinction in the eyes of society to constitute a particular social group.
Regarding nexus, the “Columbo” questions should focus on circumstantial evidence of intent. Keep in mind the BIA’s decision in Matter of S-P–. One of the factors set out in that decision for determining when purported criminal prosecution might actually be political persecution is where the abuse is “out of proportion to nonpolitical ends.” For example, if someone accused of jaywalking is sentenced to ten years in prison and subjected to torture and interrogation sessions, it’s safe to assume that it isn’t really about the jaywalking.
With this in mind, the “just one more thing” issue in such cases is to elicit details about the purported motive vs. the seriousness of the threatened harm. Where the issue is extortion, and the Board might therefore view the motive as economic, ask exactly how much money was involved. Under the S-P- test, a threat to rape and kill someone because their family member neglected to pay $20 in renta probably isn’t about the money. The same might be found even where a larger sum is involved where the threats are directed at, e.g., a teenage child who lacks any realistic ability to pay. Or where the family has managed to avoid paying for years, is there a point where a dispute that began purely over money starts to take on some animus towards the family as well?
Regarding social distinction, “just one more thing” should be asked to establish how the asylum-seeker’s family was viewed in the society in which they lived, as well as the general distinctions that all families enjoy in such society. Was it known throughout the community that MS-13 is targeting the client’s family? If so, might that knowledge have caused the family to achieve social distinction? It is also worth asking whether the institution of family is addressed in the country’s constitution, or how kinship is treated regarding the country’s inheritance and guardianship laws.
Unwilling/unable issues:
As in Orellana v. Barr above, ask “just one more thing” about how many times your client turned to the police, and how many times they actually responded. Also, how long did it take them to respond, and what did the response consist of? How did the authorities treat the abuser? Did they take the position that the issue was a “personal matter” not proper for police intervention?
If the client did not bother to call the police because they viewed it as futile, ask “just one more thing” about what caused them to form such a view. Do they know of relatives, friends, or neighbors whose experiences with the authorities support such a view? Can they cite examples in which there were repercussions for those who called on the authorities for protection? Have the authorities asked for bribes, or made statements exhibiting bias or corruption? Or have they gone as far as to admit that they are unable to provide effective protection?
Copyright 2020 Jeffrey S. Chase. All rights reserved.
Reprinted by permission.
(Disclaimer: The foregoing is meant as “food for thought,” and is not to be interpreted or relied upon as legal advice, or to create an attorney-client relationship. And as the law changes, by the time you read this, the information contained therein might not be up to date.)
MAY 27, 2020
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Thanks, Jeffrey, my friend!
I’ve always said about asylum litigation in Immigration Court: The Devil 👹 is in the details. And, if you don’t find that Devil, the Assistant Chief Counsel will. And, YOU will burn🔥!
Born in 1993, Marica was raised in Maryland and earned a B.A. in Sociology from Rice University. Marica worked in the past as a paralegal at Hudson Legal in Ann Arbor and most recently explored eGovernance based infrastructure projects on the Dorot Fellowship. In the past, she received the Wagoner Fellowship, from the Higher School of Economics in Saint Petersburg, Russia, where she completed a year long ethnographic research project. She is fluent in Russian and proficient in Spanish and Hebrew.
Hon. Paul Wickham Schmidt U.S. Immigraton Judge (Ret.) Adjunct Professor, Georgetown Law Blogger, immigrationcourtside.com
Judge (Retired) Paul Wickham Schmidt
Judge Schmidt was appointed as an Immigration Judge at the U.S. Immigration Court in Arlington, Virginia, in May 2003 and retired from the bench on June 30, 2016. Prior to his appointment as an Immigration Judge, he served as a Board Member for the Board of Immigration Appeals, Executive Office for Immigration Review, in Falls Church, VA, since February 12, 1995. Judge Schmidt served as Board Chairman from February 12, 1995, until April 9, 2001, when he chose to step down as Chairman to adjudicate cases full-time. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), extending asylum protection to victims of female genital mutilation.He received a Bachelor of Arts degree from Lawrence University in 1970 (cum laude), and a Juris Doctorate from the University of Wisconsin School of Law in 1973 (cum laude; Order of the Coif). While at the University of Wisconsin, he served as an editor of the Wisconsin Law Review. Judge Schmidt served as acting General Counsel of the former Immigration and Naturalization Service (INS) (1986-1987; 1979-1981), where he was instrumental in developing the rules and procedures to implement the Immigration Reform and Control Act of 1986. He also served as the Deputy General Counsel of INS for 10 years (1978-1987). He was the managing partner of the Washington, DC, office of Fragomen, Del Rey & Bernsen (1993-95), and also practiced business immigration law with the Washington, DC, office of Jones, Day, Reavis and Pogue from 1987-92 (partner, 1990-92). Judge Schmidt also served as an adjunct professor of law at George Mason University School of Law in 1989 and at Georgetown University Law Center (2012-14; 2017–). He has authored numerous articles on immigration law, and has written extensively for the American Immigration Lawyers Association. Judge Schmidt is a member of the American Bar Association, the Federal Bar Association, and the Wisconsin and District of Columbia Bars. Judge Schmidt was one of the founding members of the International Association of Refugee Law Judges (“IARLJ”).In June 2010, Judge Schmidt received the Lucia R. Briggs Distinguished Achievement Award from the Lawrence University Alumni Association in recognition of his notable career achievements in the field of immigration law. Since retiring, in addition to resuming his Adjunct Professor position at Georgetown Law, Judge Schmidt has established the blog immigrationcourtside.com, is an Americas Vice President of the IARLJ, serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects, as well as speaking, lecturing, and writing in forums throughout the country on contemporary immigration issues, due process, and U.S. Immigration Court reform.
So, what now? Will the intentional cruelty, “Dred Scottification,” false narratives, and demonization of “the other,” particularly women, children, and people of color, by presidential advisor Stephen Miller and his White Nationalists become the “future face” of America? Or, will “Our Better Angels” help us reclaim the vision of America as the “Shining City on the Hill,” welcoming immigrants and protecting refugees, in good times and bad, while “leading by example” toward a more just and equal world?
The Refugee Act of 1980 feels like a huge success…for a short amount of time. The first test of the act comes when Fidel Castro opens Cuba’s borders (and Cuba’s prisons) and hundreds of refugees arrive on Florida shores. The Mariel Boatlift Crisis forced the U.S. government to realize that not all asylum processing can happen abroad. Unfortunately, it also left the public with the impression that “Open arms and open hearts” leads only to crisis.
The year is 1980 and the war in Vietnam has displaced hundreds and thousands of people. The system of presidential parole doesn’t seem like it can handle the growing global refugee crisis. What is the answer to this ballooning need? Process most refugees abroad to streamline their entrance to the U.S. Codify asylum in the U.S. in legislation that puts human rights first. Increase prestige, improve overall government coordination, provide a permanent source of funding, and institutionalize refugee resettlement programs and assimilation. Have Ted Kennedy be the face of the effort. For once, things are actually working out for humanity.
In the 1990s, Judge Schmidt was BIA Chairman Schmidt. With the support of then Attorney General Janel Reno, he aspired to “open up” appellate judgeships to all immigration experts, and to lead the BIA to much-needed progressive steps towards humane asylum law, better scholarship, improved public service, transparency, and streamlined efficiency to reduce the backlog. However, progress seemed to stall at several points and certain types of behavior tended to be rewarded. The Board sits at the intersection between a court and an agency within the administration, which means its hurdles come both from structural issues with the U.S. Justice System and with entrenched government bureaucracy.
In the 1980s, critics claimed that the federal agency in charge of immigration enforcement, the “Legacy” Immigration and Naturalization Service (“INS”), could not process quasi-judicial cases in a fair and just manner due to limited autonomy, non-existent technology, insufficient resources, haphazard management, poor judicial selection processes, and backlogs. The solution? Create a sub-agency of the Department of Justice (“DOJ”) just for the immigration courts, focused on “due process with efficiency” and organizationally separate from the agency charged with immigration enforcement. The Executive Office of Immigration Review (“EOIR”) was an ambitious and noble endeavor, meant to be an independent court system operating inside of a Federal Cabinet agency. Spoiler: despite significant initial progress it did not work out that way in the long run.
In 1986, the United States was facing an immigration crisis with an overwhelmed INS and a record number of undocumented folks in the country. IRCA, a bipartisan bill, was created to solve the immigration crisis through a three-pronged approach: legalization, enforcement and employer accountability. However, it soon became apparent that some parts of IRCA were more successful than others. IRCA taught us relevant lessons for going forward. Because while pathways to citizenship are self-sustaining, enforcing borders is not.
Judges are meant to be impartial; but, U.S. Immigration Judges have political bosses who are willing and able to fire them while making little secret of their pro-enforcement, anti-immigrant political agenda. What are the public consequences of an Immigration Court with limited autonomy from the Executive Branch? We begin the podcast at one of the “turning points,” when Attorney General John Ashcroft fired almost all the most “liberal” Board Members of the BIA, all of whom were appointed during the Clinton Administration. What followed created havoc among the U.S. Courts of Appeals who review BIA decisions. The situation has continually deteriorated into the “worst ever,” with “rock bottom” morale, overwhelming backlogs, fading decisional quality, and the “weaponized”Immigration Courts now tasked with carrying out the Trump Administration’s extreme enforcement policies.
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Many, many thanks to Marica for persuading me to do this project and for doing all the “hard stuff.” I just “rambled on” — her questions and expert editing provided the context and “framework.”And, of course, Marica provided all the equipment (the day her brother “borrowed” her batteries) and the accompanying audio clips and written introductions.
Also, many thanks to my wife Cathy for the many hours that she and “Luna the Dog” (a huge “Marica fan”) spent trying not to listen to us working in the dining room, while adding many helpful suggestions to me, starting with “you sound too rehearsed” and “lose the ‘uhs’ and ‘you knows.’” She even put up with me playing some of the “original takes” while we were “on the road” to Wisconsin or Maine.
Immigration courts in ‘chaos,’ with coronavirus effects to last years
By Tal Kopan
WASHINGTON — Raquel and her sons fled gang threats in El Salvador, survived the weeks-long journey to the U.S., and then endured the Trump administration’s 2018 separations at the southern border.
This month, she was finally going to get her chance to convince an immigration judge in San Francisco that she should be granted permanent asylum in the U.S., ending the agony of having to prepare for her court date by reliving the danger in her native country and her weeks of detention at the border.
Thanks to the coronavirus, she will have to endure the wait for three more years.
“It’s really traumatizing, because I have to keep telling them the same thing,” Raquel said. “I thought I had gotten over everything that had happened to me … but every time I remember, I can’t help crying.”
Raquel’s case is one of hundreds of thousands in the immigration courts that are being delayed by the pandemic. The courts, run by the Justice Department, have been closed for health reasons in the same way that much of U.S. public life has been on hold. But many of those who work in the system say the Trump administration has handled the shutdown in an especially haphazard manner, increasing the stress on judges and attorneys in addition to immigrants and making it harder for the courts to bounce back.
“There isn’t a day that goes by that there isn’t mass chaos behind this veil of business as usual,” said Ashley Tabaddor, president of the National Association of Immigration Judges.
The Justice Department began postponing hearings for immigrants who are not in detention on March 18, and the delays have been extended every few weeks. Hearings are now set to resume June 15. But many courts technically remain open, including the one in San Francisco, with frequently changing statuses announced on social media and a website. It also took weeks for all judges to get laptops that would allow them to work remotely, said Tabaddor, who hears immigration cases in Los Angeles.
The scattershot communications make it difficult to prepare for if and when the hearings are held, immigrants say. And it’s worse for those who have no lawyer who can help navigate the changes. About one-third of immigrants with pending cases have no representation, according to Justice Department statistics, and missing a hearing is grounds for deportation.
The Justice Department says it is being proactive in balancing safety with immigrants’ rights. A spokeswoman said the agency is “deeply concerned” for the health of its staff and the public.
In a recent legal filing, the director of the immigration courts, James McHenry, said a “one size fits all” approach to court closures and procedures wouldn’t work, given varying situations at different locations.
With postponements happening on short notice, most immigrants fighting deportation feel they must prepare for court even if pandemic-caused delays seem likely. But doing so can force them to revisit the terrifying situations they say they came to the U.S. to escape.
None who spoke with The Chronicle said they wanted to risk their health by keeping the courts open. But they and their attorneys said they wished the administration was doing more to take immigrants’ and staffers’ needs into account.
Because the immigration courts already have a backlog of more than 1 million cases, it can take years for an asylum applicant such as Raquel to go before a judge. In the meantime, they build lives here, knowing that can be yanked away if they’re ordered deported.
Raquel and others whose hearings have been postponed won’t go first when the courts reopen — they go to the back of the line. The alternative for the immigration courts would be a logistical nightmare of rescheduling everyone else’s hearings, which are now booked years in advance.
The Trump administration ended the practice of prioritizing cases of criminal immigrants or recent arrivals, and has curtailed judges’ ability to simply close the case of a low-risk migrant less deserving of deportation, which would clear court schedules for more serious cases.
The Justice Department declined to say how many hearings have been postponed because of the pandemic. But a nonprofit statistics clearinghouse estimated that the government shutdown of 2018-19 resulted in the cancellation of 15,000 to 20,000 cases per week.
Raquel’s case is emblematic of the thousands that are now in limbo. The Chronicle has agreed not to use her real name out of her concern for her safety, in accordance with its anonymous sourcing policy.
Raquel says she came to the U.S. in 2018 because a gang in the area of El Salvador where she lived threatened her family after her two sons refused to join.
She was among the immigrant families that were forcibly separated at the border. She spent a month and a half apart from her teenage son as she was shuffled between detention centers and jails. She says she endured numerous indignities, including having to shower in front of guards and being shackled by her wrists and ankles.
“It was the most bitter experience I’ve ever had,” she said in Spanish.
After finally being reunited with her son and released, Raquel rejoined her husband and other son who had come here previously, settling in San Francisco. She was ordered to wear an ankle monitor, which again made her feel like “a prisoner.”
“I had never felt so hurt like I did in this country, which hurt me so much just for crossing a border illegally,” Raquel said. “That was the sin and the crime that we committed, and we paid a high price.”
Raquel spoke with The Chronicle before receiving word that her May hearing was canceled. She and her attorney had felt forced to prepare despite a high likelihood of postponement, just in case the Justice Department forged ahead.
San Francisco attorneys who are working with immigrants during the pandemic say it is an acute challenge. Stay-at-home orders complicate preparing for cases that could have life-and-death consequences for those who fled violence back home.
Difficulties include trying to submit 1,000-page filings from home, needing to discuss traumatic stories of domestic and sexual violence with immigrants who are sharing one-bedroom apartments with 10 other people, and navigating courts’ changing status on Twitter.
“It’s taking an already not-user-friendly system and spinning it into chaos to the extent that even savvy practitioners don’t know how to get information, let alone the applicant,” said Erin Quinn, an attorney in San Francisco with the Immigrant Legal Resource Center.
She added, “The stakes are high, and at the same time, a comment I got yesterday from a practitioner was, ‘I’m tired of trying to figure out what to do with my practice based on tweets.’”
Judges and court staffers are also frustrated. On March 22, an unprecedented partnership was formed among the unions representing Immigration and Customs Enforcement attorneys who serve as prosecutors in the courts, judges and the association for attorneys who represent immigrants. They wrote a letter to the Justice Department demanding it close all the courts, not just postpone hearings for immigrants who are not in detention. The agency later expanded the ability of attorneys to appear by telephone and for some judges to work from home.
Even now, however, the Justice Department is requiring some judges and staff to come in to court to handle cases of immigrants who are being detained — those hearings have not been canceled — or to process filings.
“It is very, very upsetting. Employees do not feel like they are, No. 1, being protected and, No. 2, you don’t feel respected and valued,” said Immigration Judge Dana Leigh Marks, president emerita of the judges’ union.
Marks and Tabaddor say it’s part of a Trump administration pattern of stripping immigration judges of their independence at the expense of fair proceedings— an example of “haste makes waste,” Marks said. The Justice Department has set performance metrics to push judges to complete more cases, and Trump’s attorneys general have issued rulings that made it more difficult for judges to prioritize their caseloads.
The Justice Department, for its part, says it is making the courts more efficient. In November, McHenry testified before Congress that his agency had “made considerable progress in restoring (the courts’) reputation as a fully functioning, efficient and impartial administrative court system fully capable of rendering timely decisions consistent with due process.”
Quinn, the San Francisco attorney, said the Justice Department should work more closely with immigrants’ lawyers like Raquel’s to prioritize cases that are ready to move forward.
“Everything this administration has done to speed up or deal with the backlog are actually actions that limit the meting out of justice in the courts, which even before this crisis have been gumming up the system further,” Quinn said. “We will see the impact of that now as we try to come out of this crisis.”
Meanwhile, for immigrants like Raquel, the wait will continue. Even with the hardship, she says coming to the U.S. was worth the risks.
“It’s about protecting my children,” she said. “I’ve always told my sons, if God let us get here, they have to take advantage of it. … In my country, someone walks down the block and they get assaulted or kidnapped and nobody ever finds them. But not here. Here you feel safe.”
San Francisco Chronicle staff writer Alexei Koseff contributed to this report.
It’s great to have you back, Tal! We’ve missed you!
It’s well worth going to the link to read Tal’s full article! Also, you’ll see some great pictures from the “home chambers” of my good friend and colleague Judge Dana Leigh Marks of the San Francisco Immigration Court, a Past President of the NAIJ.
What also would be great is if the dire situation in the U.S. Immigration Courts had actually improved over the past few months. But, predictably, the “downward spiral” has only accelerated.
Tal’s article brings to life the “human trauma” inflicted not only on those poor souls whose constitutional due process rights have been “sold down the river” by this “maliciously incompetent” regime, but also the unnecessary trauma inflicted on everyone touched by this disgraceful system: private and pro bono counsel, judges, interpreters, clerical staff, government counsel, and their families all get to partake of the unnecessary pain and suffering.
While it undoubtedly would take years to restore due process, fundamental fairness, and some measure of efficiency to this dysfunctional mess, the starting points aren’t “rocket science” – they are deceptively simple. One was eloquently stated by Erin Quinn, an attorney with the Immigrant Legal Resource Center in San Francisco who “said the Justice Department should work more closely with immigrants’ lawyers like Raquel’s to prioritize cases that are ready to move forward.” That’s actually how it used to be done in places like Arlington.
As Judge Marks points out, a host of “haste makes waste” gimmicks and enforcement schemes by this Administration (and to a lesser extent by the Obama Administration) have resulted in massive “Aimless Docket Reshuffling” and total chaos as politicos in at the DOJ and bureaucrats in EOIR HQ “redesign and reshuffle” dockets to achieve political objectives and “send messages” without any meaningful input from the Immigration Judges and attorneys (on both sides) who actually do the work and understand the dynamics of a particular docket.
In particular, under a fair and unbiased application of legal standards there are thousands of well-documented meritorious asylum and cancellation of removal cases that could be handled in “short hearings.”Other individuals could be removed from the docket to pursue U and T nonimmigrant visas or “stateside processing” permanent immigration with USCIS. Still others have documentation establishing that they are productive, law-abiding tax-paying members of their communities, often with U.S.citizen family, who should be removed from the dockets through the type of sensible, mutually beneficial “prosecutorial discretion” (“PD”) programs that were beginning to show meaningful results before being arbitrarily terminated by this Administration.
This is just the “tip of the iceberg.” There are many more improvements in efficiency, without sacrificing due process, and “best practices” that could be made if this were operated as a fair and impartial court system, rather than an appendage of DHS Enforcement committed to Stephen Miller’s nativist agenda.
The other necessary piece is the one promoted by Judge Tabaddor and the NAIJ and endorsed by nearly all “non-restrictionist” experts in the field: establishing an independent Immigration Court outside of the Executive Branch. That’s not likely to happen without “regime change.”
Moreover, it’s clear from his recent actions that Billy Barr, who is currently running the Immigration Courts into the ground, actually aspires to “kneecap” the Article III Judiciary in behalf of his lord and master, Trump. Barr would be delighted if all Federal,Courts, including the Article IIIs, were functionaries of the all powerful “Unitary Executive.” Given the Supremes’ failure to stand up for immigrants’ and asylum seekers’ legal rights as they are systematically dismantled by the regime, Barr is already a ways down that road!
Tal’s article also highlights another glaring deficiency: the lack of a diverse, merit-based Immigration Judiciary committed solely to “due process with efficiency” and fair and impartial adjudications under the law, particularly the asylum laws. Experts like Erin Quinn, folks with a deep scholarly understanding of immigration and asylum laws and experience representing the individuals whose lives are caught up in this system, should be on the Immigration Bench. They are the ones with the knowledge and experience in making “hard but fair” choices and how to achieve “practical efficiency” without sacrificing due process.
Rather than actively recruiting those outstanding candidates from the private, academic, and NGO sectors with asylum experience and knowledge, so that they could interact and share their expertise and practical experiences with other judicial colleagues, the current system draws almost exclusively from the ranks of “insiders” and government prosecutors. They apparently are hired with the expectation that they will churn out orders of removals in support of DHS Enforcement without “rocking the boat.” To some extent this was also true under the Obama Administration, which also hired lopsidedly from among government attorneys.
Indeed, prior immigration experience is not even a job requirement right now. The hiring tends to favor those with high volume litigation skills, primarily gained through prosecution. That doesn’t necessarily translate into fair and scholarly judging, although it might and has in some instances.
Of course, a few do defy expectations and stand up for the legal and due process rights of respondents. But, that’s not the expectation of the politicos and bureaucrats who do the hiring. And the two-year probation period for newly hired Immigration Judges gives Administration politicos and their EOIR subordinates “leverage” on the new judges that they might not have on those who are more established in the system, particularly those who are “retirement eligible.”
Moreover, the BIA has now been “stocked” with judges with reputations for favoring enforcement and ruling against asylum seekers in an unusually high percentage of cases.The design appears to be to insure that even those who “beat the odds” and are granted asylum by an Immigration Judge get “zapped” when the DHS appeals. Even if the BIA dared not to enforce the “restrictionist party line,” the Attorney General can and does intervene in individual cases to change the result to favor DHS and then to make it a “precedent” for future cases.Could there be a clearer violation of due process and judicial ethics? I doubt it. But, the Courts of Appeals largely pretend not to see or understand the reality of what’s happening in the Immigration Courts.
Beyond that, the Immigration Judge job, intentionally in my view, has been made so unattractive for those who believe in due process for individuals and a fair application of asylum laws, that few would want to serve in the current environment. Indeed, a number of fine Immigration Judges have resigned or retired as matters of conscience because they felt unable to square “system expectations” with their oaths of office.
To state the obvious, the current version of Congress has become a feckless bystander to this ongoing human rights, constitutional, ethical, and fiscal disaster. But, the real question is whatever happened to the existing independent Article III Judiciary? They continue to remain largely above the fray and look the other way as the Constitution they are sworn to uphold is further ground into the turf every day and the screams of the abused and dehumanized (“Dred-Scottified”) emanating from this charade of a “court system” get louder and louder.Will they ever get loud enough to reach the refined ears of those ensconced in the “ivory tower” of the Article III Judiciary?
Someday! But, the impetus for the necessary changes to make Due Process, fundamental fairness, and equal justice for all a reality rather than a cruel, intellectually dishonest, and unfulfilled promise is going to have to come from outside the current broken and intentionally unfair system and those complicit in its continuing and worsening abuses of the law and humanity!
The absence of a checked alien classification box on a Notice to Appear (Form I-862) does not, by itself, render the notice to appear fatally deficient or otherwise preclude an Immigration Judge from exercising jurisdiction over removal proceedings, and it is therefore not a basis to terminate the proceedings of an alien who has been returned to Mexico under the Migrant Protection Protocols. Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA 2020), followed.
The lesson of this case: The DHS intentionally puts superfluous information on its form NTA so it doesn’t make any difference whether they fill it in or not. The BIA is there to “fill in the blanks” and help their DHS buddies rack up maximo removals, preferably without in person hearings because it’s faster and helps fulfill “quotas,” under the Let ‘Em Die in Mexico Program (a/k/a “jokingly” as the “Migrant ‘Protection’ Protocols” (“MPP”) — which, of course, serve to intentionally endanger and discourage, not protect, asylum seekers).
This follows Matter of J.J. Rodriguezwhere the BIA found that the DHS wasn’t required to put a usable mailing address for the respondent on the NTA. I can only imagine what would have happened in the Arlington Immigration Court if a respondent had given me “Fairfax County, Virginia, USA” as his one and only address! The former is actually probably a “better” address than “Known Domicile, Tijuana, Baja California, Mexico” which was used in this case. What a farce! But, of course, it’s not very funny when it’s your life, or that of a loved one or client that is going down the tubes☠️.
There actually is an old legal axiom of construing problems against the drafter of a document, particularly when the drafter is in a more powerful position than the recipient. It even has a fancy legal name: Contra proferentem. But, today’s EOIR follows a much simpler maxim: The respondent always loses, particularly in precedent decisions.
I suppose at some point the BIA will be called upon to enter an in absentia removal order in a case where the NTA is blank except for the respondent’s name. I have no doubt, however, that they will be “up to the job.”
To his credit, Judge Edward Kelly entered a brief “concurring opinion” specifically noting that the statutory or constitutional authority for the so-called MPP was not at issue. In plain terms, that means, thanks in large measure to a complicit Supremes’ majority, even if that program, certainly a illegal and unconstitutional hoax, were later found to be unconstitutional, it would be far too late for those already removed, extorted, kidnapped, maimed, tortured, sickened 🤮, or dead ⚰️ thereunder. But, of course, the BIA, like Trump himself, will take no responsibility for any of the deadly fallout of their actions.
Great way to run a government! But, it’s the “New America” under Trump. Most of those in a position to stop the abuse merely shrug their shoulders, look the other way, and plug their ears so as not to have their serenity and complicity, as well as their paychecks, bothered by the screams and fruitless pleas of the abused. Except, of course, for true sadists ☠️ like Stephen Miller and his White Nationalist cronies 🏴☠️ who actually “get off” on the death, ⚰️ torture, abuse, and suffering of “others” they believe to be of “inferior stock” and therefore deserving of dehumanization and death⚰️.
Apparently, the “Tower Rumor Mill” @ EOIR HQ says that Acting Chief Immigration Judge Christopher Santoro will soon be replaced by a permanent Chief Immigration Judge hand selected from among DOJ political hacks by none other than one of the American taxpayers’ most highly paid, unelected White Nationalists, White House Advisor Stephen Miller. The name of Gene Hamilton, like Miller an uber restrictionist former sidekick of “Gonzo Apocalypto” Sessions, still kicking around the DOJ, has been bandied about. However, other parts of the “rumor mill” have expressed skepticism about whether Hamilton really wants the job. He might be able to score more “kills” from his current job, whatever it is.
Stay tuned! In the absence of a functioning Congress or a courageous Federal Judiciary, the “killing fields”⚰️⚰️⚰️⚰️⚰️👎 are just getting rolling @ EOIR. Under the Trump regime, EOIR is now on a breakneck pace to write one of the most dismal, disgusting🤮, and disturbing 😰chapters in modern American legal history involving a catastrophic failure of integrity, courage, and humanity spanning all three rapidly disintegrating branches of our flailing democracy.
Suzanne Monyak Senior Reporter, Immigration Law360Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Retired Immigration JudgesLaura Lynch Senior Policy Counsel AILA“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
U.S. Circuit Judge Frank H. Easterbrook didn’t mince words earlier this year when sharing his thoughts on a recent decision by the immigration courts’ appellate board: “We have never before encountered defiance of a remand order, and we hope never to see it again.”
The Seventh Circuit judge, a Reagan-appointee, said the board had ignored the court’s directions to grant protection to an immigrant fighting deportation, instead ruling against the immigrant again. The rebuke wasn’t the first time the Board of Immigration Appeals has been reprimanded by the federal judiciary for seemingly prejudiced decisions under the Trump administration.
Just a month earlier, a judge on the Third Circuit tackling an appeal from the BIA wrote in a concurring opinion that it didn’t appear the board “was acting as anything other than an agency focused on ensuring [an immigrant’s] removal rather than as the neutral and fair tribunal it is expected to be.”
“That criticism is harsh and I do not make it lightly,” U.S. Circuit Judge Theodore McKee wrote.
While President Donald Trump’s judicial nominees and U.S. Supreme Court picks grab headlines for rtheir potential to shape the judiciary for years to come, the administration is staffing the lesser known BIA with former immigration judges who have high asylum-denial rates and individuals with backgrounds in law enforcement. Some of the picks have prompted advocates for immigrants and lawmakers to claim the hiring process is too politicized.
Documents newly obtained through the Freedom of Information Act reveal that the Trump administration has aimed to fast-track the hiring process while giving the director of U.S. Department of Justice‘s Executive Office for Immigration Review, James McHenry, and the U.S. attorney general more say in who gets the nod.
Unlike the federal and appellate courts, the BIA, an administrative appellate board that hears appeals from immigration trial courts, is not independent but rather is housed with the EOIR.
Yet the board can issue precedential decisions that shape immigration policy — and the lives of immigrants facing deportation — well into the future.
“That the reasonably ordinary citizen has not heard of the BIA does not take away from the fact that it is the most important agency establishing immigration jurisprudence in the country, and when you politicize that, you’re obviously politicizing immigration jurisprudence,” said Muzaffar Chishti, head of the nonpartisan Migration Policy Institute’s New York office.
A spokesperson for EOIR told Law360 that the office sped up the hiring process as part of “commonsense changes” and in response to criticism from Congress.
She also said that EOIR “does not choose board members based on prohibited criteria such as race or politics, and it does not discriminate against applicants based on any prohibited characteristics,” and that “all board members are selected through an open, competitive, merit-based process.”
During the most recent hiring cycle, every panelist evaluating candidates was a career employee, not a political appointee, according to the spokesperson.
“Individuals who assert that such changes make the hiring process less neutral are either ignorant or mendacious,” the spokesperson said.
High Rates of Asylum Denials
Since August, the Trump administration has installed nine of the 19 current permanent members of the BIA, and most of the newcomers have asylum-denial rates above 80% and backgrounds in law enforcement or the military.
All but one of the nine were previously immigration judges, and according to data collected by Syracuse University’s Transactional Records Access Clearinghouse, the average asylum-denial rate among those eight judges was just over 92%. The denial rate for each of those eight judges ranged from 83.5% to 96.8%.
The average asylum-denial rate for immigration courts nationally is 63.1%, according to TRAC.
Asylum-denial rates aren’t perfect metrics; controlling asylum law varies by circuit, and the viability of asylum claims can vary based on location. New York’s immigration courts for instance, tend to see more asylum claims from Chinese citizens fleeing political oppression, which are more frequently successful, while courts near detention centers may see harder-to-win claims from longtime U.S. residents with less access to counsel.
However, Jeffrey Chase, a New York City immigration lawyer and former immigration judge, told Law360 that no one deciding cases fairly could have a 90% asylum denial rate.
“You’re looking to deny cases at that point,” he said.
The one recent Trump administration BIA hire who wasn’t previously an immigration judge had been a trial attorney at the Justice Department, while many of the other former judges had prior experience at the U.S. Department of Homeland Security or its predecessor agency.
One, V. Stuart Couch, was previously a senior prosecutor for detainees held at Guantanamo Bay, Cuba.
“There’s overall just a lack of diversity on the immigration judge bench, which is deeply concerning,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association. “I think the mark of justice is the idea that decision makers come from a diverse background.”
A hire to the BIA announced earlier this month, Philip J. Montante Jr., has come under fire not only for a sky-high asylum-denial rate — 96.3% — but for a history of ethics complaints.
In 2014, the DOJ’s Office of Professional Responsibility concluded that Judge Montante’s handling of an immigration case was “inappropriate” after an attorney accused him of showing bias when deciding a client’s case.
In March, not long before his promotion to the BIA was announced, the New York Civil Liberties Union accused Judge Montante in a proposed class action in federal court of denying detained immigrants’ bond requests nearly universally.
According to the advocacy organization, Judge Montante rejected 95% of bond requests between March 2019 and February 2020, bringing him within the top five lowest bond grant rates among the more than 200 immigration judges nationwide.
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Read the rest of Suzanne’s excellent article, with more quotes from my fellow members of the NDPA, Judge Jeffrey S. Chase and Laura Lynch, at the above link.I have been told that this article is “outside” the Law360 “paywall,” so you should be able to read it even if you don’t have a subscription.
I find the Article III Courts’ recognition of the Due Process travesty going on in individual cases, while they ignore the systemic unfairness that makes a mockery out of the Due Process Clause of our Constitution, the rule of law, our entire justice system, and humanity itself, perhaps the most disturbing institutional failure under the Trump regime. While Article III Judges are “shocked and offended” by contemptuous actions directed at them in particular cases, they remain willfully “tone deaf” to the reality of our dysfunctional and biased Immigration Courts and their impact on “real human lives.” ☠️
This is how individuals seeking justice and the courageous lawyers representing them, many serving at minimal or no compensation to inject a modicum of integrity into our system, are treated every day. Not every wronged individual has the ability to reach the Article IIIs.
And, given the Article IIIs failure to take the courageous, systemic steps necessary to stop abuses of migrants, the Trump regime has “taken it to a new level” by coming up with various illegal schemes and gimmicks to keep individuals seeking asylum from even getting a hearing in Immigration Court. Due Process? Fundamental Fairness? Rule of Law? No way!
Yet, this unfolds before us daily as the Article IIIs basically “twiddle their collective thumbs” 👎🏻 and “nibble around the edges” of a monumental Constitutional disaster and blot on the humanity and integrity of our nation and our own souls. The complicity starts with the Supremes who have “passed” ona number of critical opportunities to “just say no” to blatant violations of the Fifth Amendment, the Immigration and Nationality Act, the Refugee Act of 1980, international human rights conventions, and misuse and clear abuse of “emergency authority” to achieve a White Nationalist, racist agenda.
In other words, the Supremes’ majority is knowingly and intentionally encouraging the regime’s program of “Dred Scottification” — dehumanization or “de-personification” before the law — of “the other.” This disgusting and fundamentally un-American “resurrection and enabling” of a “21st Century Jim Crow Regime” might be “in vogue” with the “J.R. Five” and their right-wing compatriots right now. But, they are squarely on the “wrong side of history.” Eventually, the “truth will out,” and they will be judged accordingly!👎🏻
That’s why I say: “Constantly Confront Complicit Courts 4 Change.”
The hiring plan documents show shortened hiring timelines and suggest preference given to judges with records of rulings against immigrants. The documents also demonstrate the influence held over the board by the political leadership of the Executive Office for Immigration Review, the Justice Department agency that oversees the nation’s immigration court system, particularly its director, James McHenry.
“The [hiring] processes previously in place were cumbersome and not efficient but what we’re seeing with this hiring plan is that they’ve really eviscerated any protections that were put in place … to create a flexible process to fit their political priorities,” said Laura Lynch, senior policy counsel at AILA. “It’s very unclear and opaque and provides the leeway to manipulate the process.”
An EOIR official, who would only comment if identified as an agency spokeswoman, said its current process is “open, competitive, merit-based.”
“During the most recent hiring cycle, every interview panelist was a career (i.e. not political) employee, which would not have been possible under the previous procedures,” said the spokeswoman after CQ Roll Call reached out to EOIR for comment. “Individuals who assert that such changes make the hiring process less neutral are either ignorant or mendacious.”
New roles
Under the current administration, the Justice Department has rapidly expanded the board. In 2018, it went from 17 members to 21. On March 31, the department announced a new rule, effective the next day, expanding the board to 23 members.
McHenry first advertised for new positions in fall 2018. But instead of referring to them as “board members,” as they had been historically described, he called them “appellate judges,” a reflection of other changes to come. Instead of working out of the board’s office in Falls Church, Va., appellate judges could work from any immigration court in the country.
They also could review cases at both the trial and the appellate level — creating potential conflicts of interest.
EOIR said its office first proposed that designation in 2000.
“Elevating trial-level judges to appellate-level courts is common in every judicial system in the United States,” the agency spokeswoman said.
True, said Ashley Tabaddor, who heads the union, the National Association of Immigration Judges. But she noted judges in an independent judiciary don’t hear cases at the trial and appellate level at the same time.
“They are taking these concepts and they’re mashing them up together to essentially walk away from the traditional court model,” she said, adding that she believes conflating the roles could be a way to dilute union membership.
Tabaddor and others are currently fighting the Justice Department over its move in January to decertify the judges’ union.
Faster hiring process
In 2008, a DOJ Inspector General investigation found widespread political hiring at the board. As a result, to curb future practices, the department implemented a multi-layered process that entailed vetting by both political appointees and career professionals.
The current hiring process appears to chip away at the role career employees play in that process, and instead amplifies that of the EOIR director and other political appointees, according to Lynch and some other experts who reviewed the changes.
McHenry refers several times in one memo that he seeks to streamline the hiring process and make it more efficient. For instance, new openings on the board are now public for only 14 days, as opposed to the previous 30 days, to “begin the application review process more quickly,” McHenry writes in the memo.
In another step, current board members have to submit their evaluations of job candidates within three days, as opposed to a week. McHenry notes other tighter deadlines for other parts of the applicant screening process.
The changes raise concerns by immigration judges, lawyers and court observers about political appointees rushing preferred candidates, including those with unresolved complaints in their records, onto the board.
“Looks like another coverup for ‘expedited,’ predetermined, ideologically-based, ‘insider’ hiring,” Paul Schmidt, a retired immigration judge who headed the Board of Immigration Appeals under President Bill Clinton, told CQ Roll Call via email.
Schmidt, who tracks every board hire and firing on a well-known immigration blog, described the current hiring process as “a fraud and a joke — but not so funny when we consider the human lives at stake.”
According to a former longtime member of the appeals board who served under McHenry, EOIR’s director has manipulated even the newly laid out hiring process. “Everyone knows that he was changing the process along the way to ensure he got the candidates he pre-selected,” said the former board member, who spoke to CQ Roll Call on the condition of anonymity because of fear of agency retribution.
EOIR leaders did not respond to questions posed to agency leaders specifically regarding this allegation.
. . . .
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Read Tanvi’s full article at the link.
Actually, I’m neither neither “ignorant [nor] mendacious.” I probably know more about EOIR than anyone alive. I”ll certainly put my knowledge of immigration law and due process up against anyone at the DOJ today!
The proof of any merit based hiring system is in the results. Nobody, and I mean nobody, outside the world of DOJ politicos and the restrictionist right would claim that the last half-dozen selections for the BIA are the “best and the brightest.” None of them actually have any recent relevant experience representing migrants or asylum seekers.
There must be hundreds if not thousands of immigration practitioners out there who would be better qualified and more deserving of these jobs. Under current conditions, what would a civil servant not actually involved in Immigration Court practice know about what makes a good BIA Appellate Immigration Judge? What would they know about legal issues facing the immigrant community? Next to nothing, to put it generously. So, what’s the benefit of involving them except to “rubber stamp” and “launder” Director McHenry’s anti-immigrant preselections. That’s exactly what the “inside” source in Tanvi’s article confirms!
What is badly needed and sorely lacking is input from the immigration bar and the NGOs who actually practice before the Immigration Courts and the BIA and have seen the unmitigated due process and fundamental fairness disaster that unfolds every day under this Administration. That’s the way other judicial “merit selection” systems are run — with input from outside Government, indeed some even get input from influential non-lawyers within the community being served by the courts.
Such a system was actually used on a number of occasions during the Clinton Administration. And, hiring then didn’t take anywhere near as long as it has under the bloated, biased, and opaque systems employed by the Bush, Obama, and Trump Administrations. Not surprisingly, every appointment to the BIA since 2000 has been some type of “government insider.”
Today’s BIA is largely White, Male, Anglo, and restrictionist. That bears no resemblance whatsoever to the community that the Immigration Courts are supposed to be serving. Indeed, it bears little resemblance to the composition of today’s America or the attitudes of the majority of Americans toward migrants.
Even with tons of “undue deference” given to the BIAby the Article IIIs, scarcely a week goes by without the Article IIIs highlighting some grossly defective performance in the BIA’s interpretation and application of the basics of immigration law and due process. Yet, the BIA selection process makes no effort to encourage or promote private sector applicants renowned and respected in the larger legal community for their scholarship, professionalism, and problem-solving skills. Indeed, some Immigration Judges with just those skills have prematurely been driven from the bench by this Administration’s racially biased and fundamentally unfair manipulation of the Immigration Court process.
The BIA’s bogus hiring process is a prime example of fraud, waste, and abuse. And the failure of Congress and the Article III Courts to put an end to this ridiculous perversion of justice is a disgraceful act of complicity in the disgusting “Dred Scottification” of “the other.”
INTERESTING HISTORICAL FOOTNOTE:The current 23 Board Members is where the BIA was in 2001 before the “Ashcroft Purge” artificially reduced the BIA to 12 Members to eliminate dialogue, suppress dissent, and skew results to favor DHS without any meaningful deliberation or internal opposition. In other words, creating a false impression of consensus by shutting out dissent. The immediate cratering of the quality of the BIA’s decision making caused an uproar of resistance and criticism in the Circuit Courts of Appeals. Since then, the Immigration Courts have been in a two-decade-long “death spiral” with due process, fundamental fairness, judicial integrity, efficiency, and human lives among the victims.
Here’s more from Laura Lynch over at AILA about the ongoing farce at EOIR and the BIA 🤡☠️:
Podcast: Politically Direct Episode 92 With Guest Susan Roy, Former Immigration Judge
By Insider NJ | April 29, 2020, 12:45 pm
Coming up on Thursday Night April 30th and LIVE at 9:00PM, I welcome Former Immigration Judge Susan Roy to Politically Direct. We will discuss her time working in Federal Immigration Court, the challenges of Immigration Law, the current political climate, the impact of COVID-19 on current immigration cases and much more.
I am proud to partner with Insider NJ and host this weekly informative podcast.
Feel free to call in and chat with us during the program.
“Immigration law is a field in which fair, accurate factfinding is of critical importance. The need in immigration proceedings for effective attorneys who can competently marshal the evidence on each side is therefore of commensurate importance. Yet aliens—often poor, often non-English speaking—are disproportionately saddled with low-quality counsel, and the consequences can be drastic. This is a case in point. Petitioner Sergio Calderon-Rosas paid a now-disbarred attorney to represent him in removal proceedings, and Calderon-Rosas was ordered deported after that attorney failed to present key evidence supporting his application for cancellation of removal. Calderon-Rosas sought a new hearing, arguing that he was deprived of due process by, among other things, his attorney’s ineffective assistance, but the Board of Immigration Appeals (BIA) denied his claims. We must decide whether we have jurisdiction to review due process claims where a petitioner, like Calderon-Rosas, seeks only discretionary relief—and if so, whether Calderon-Rosas’s claims have merit. Because we conclude that we have jurisdiction and Calderon-Rosas plainly presents a meritorious ineffective-assistance claim, we will vacate the Board’s decision and remand.”
[Hats off to Petra D. Fist!]
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Get the full decision at the link.
Panel:GREENAWAY, JR., KRAUSE, and RESTREPO,
Circuit Judges
Opinion by:Judge Krause
Here’s my favorite quote from court’s unanimous opinion written by Circuit Judge Krause:
The government’s argument, however, is one we have squarely rejected. We long ago recognized that due process claims can be asserted by petitioners seeking discretionary relief because “Congress instructed the Attorney General to establish an asylum procedure,” and “[w]hen Congress directs an agency to establish a procedure . . . it can be assumed that Congress intends that procedure to be a fair one.” Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996) (addressing asylum claim). “[F]airness,” we explained, “mandate[s] that the asylum procedure promulgated by the Attorney General provide the most basic of due process.” Id.; see also Cham v. Att’y Gen., 445 F.3d 683, 691 (3d Cir. 2006) (“[A]lthough Cham has no constitutional right to asylum, he was entitled, as a matter of due process, to a full and fair hearing on his application.”); Ponce-Leiva v. Ashcroft, 331 F.3d 369, 373–74
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(3d Cir. 2003) (“Ponce–Leiva’s brief . . . suggests that counsel’s ineffectiveness was a denial of due process. Accordingly, we may analyze the claim, at least within the parameters of due process.”).
More recently, in Serrano-Alberto v. Attorney General, 859 F.3d 208 (3d Cir. 2017), in exercising jurisdiction over claims for discretionary relief, we reiterated that “petitioners must receive a full and fair hearing that allows them a reasonable opportunity to present evidence on their behalf, and a decision on the merits of their claim by a neutral and impartial arbiter.” Id. at 213 (internal quotation marks and citations omitted). That procedural due process right, we explained, is comprised of “three key protections” in immigration proceedings: “(1) ‘factfinding based on a record produced before the decisionmaker and disclosed to him or her’; (2) the opportunity to ‘make arguments on his or her own behalf’; and (3) ‘an individualized determination of his [or her] interests.’” Id. (quoting Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (en banc)). In short, “[t]hroughout all phases of deportation proceedings, petitioners must be afforded due process of law.” Id.
So true. Yet, so often ignored in practice by the Supremes and Circuit Courts.
The current Immigration “Court” system is run by a politically biased enforcement official, Billy Barr, who solely controls judicial appointments, job retention, sets so-called “performance standards” intentionally weighted toward DHS Enforcement’s needs, establishes binding “precedents,” and changes results favorable to asylum seekers and other respondents when they don’t suit his nativist agenda. In this system, no respondent is receiving a “fundamentally fair hearing” before a “fair and impartial decision maker.”
Even if an Immigration Judge tries to act fairly in an individual case, as many do, they are still bound by the Attorney General’s pro-enforcement policies, and the specter of arbitrary reversal of results favorable to the respondent by so-called “certification” by the AG hangs over and materially compromises the entire system and every proceeding.
Indeed, by concentrating only on the small, and somewhat random, sampling of “petitions for review” that actually cross their desks, the Courts of Appeals and the Supremes are ignoring the systemic lack of fundamental due process that infects this entire dysfunctional and unfair system. Time to wake up and do the right thing!
Nice words are one thing. Actions an entirely different matter!
