"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.
Judge William Van Wyke (D-2022) U.S. Immigration Judge (Ret.) Member Round Table of Former Immigration Judge PHOTO: the world.com
Courtside has received unofficial reports of Judge Van Wyke’s death. No further details are available at present.
He will be mourned by family, friends, Round Table colleagues, and many immigrants, their families, and their descendants who owe their lives to his courage, persistence, and brilliance, as a private attorney, an Immigration Judge, and an active and engaged member of the Round Table of Former Immigration Judges.
Below is his judicial bio from TRAC Immigration:
Judge Van Wake was appointed as an Immigration Judge in March 1995 in New York City. He was re-assigned to the Immigration Court in New York in June 2002, following a six-year assignment as an Immigration Judge in York, Pennsylvania. Judge Van Wyke received a Bachelor of Arts degree from Calvin College, Grand Rapids, Michigan, in 1972. He received a Master of Arts degree in 1974, and a Juris Doctorate in 1977, both from the University of Michigan. From 1993 to 1995, he worked as an attorney with the Law Office of Thomas Elliott in Washington, DC. From 1986 to 1993, he was in private practice in Washington, DC, focusing primarily on immigration law and international human rights issues. From 1983 to 1985, Judge Van Wyke served as staff attorney for the Central American Refugee Center, also in Washington, DC. He also served 3 years as litigation director for East Arkansas Legal Services. In 1990, he worked as a law student supervisor at AYUDA, Inc., in Washington, DC. From 1992 to 1995, Judge Van Wyke also served as an adjunct professor at Washington College of Law, American University, where he taught refugee and asylum law. He is a member of the Tennessee Bar.
Is she the “Debbie Anker of Entertainment?” PHOTO: Mason Poole, CC BY 4.0 <https://creativecommons.org/licenses/by/4.0>, via Wikimedia Commons
Hon. “Sir Jeffrey” S. Chase writes:
What a beautiful tribute to a true giant and hero. I can’t even begin to state the influence Debbie has had on me. But think of how many NDPA heroes out there are former students of hers, and how many immigration law clinics around the country relied on Debbie’s clinic at Harvard as its model. It’s impossible to overstate her impact.
Clinical Professor Deborah Anker LL.M. ’84, ‘one of the architects of modern refugee law’ and founder of the Harvard Immigration and Refugee Clinical Program, moves to emerita status
By Debbie/HLS Correspondent, July 20, 2022
Credit: Kathleen Dooher
As Harvard Law School Clinical Professor Deborah Anker LL.M. ’84 moves to emerita status, she and her many students and colleagues can reflect on her formidable record of achievement — as a pioneer in the study of refugee and asylum law, the author of the seminal text on the subject, and a tireless advocate for the rights of refugees, particularly women and children. As her former student Molly Linhorst ’16 puts it — quoting a sentiment voiced by many of Anker’s admirers — “She’s the Beyoncé of asylum law.”
“As founding director of the Harvard Immigration and Refugee Clinic, Deborah Anker has played a pivotal role at Harvard Law School, not only by founding our clinic but in helping build our clinical program,” Harvard Law School Dean John F. Manning ’85, the Morgan and Helen Chu Dean and Professor of Law at Harvard Law School. “Her work in the clinic enabled countless clients to enjoy freedom and escape persecution by remaining in the U.S., and she trained and inspired scores of other lawyers to work to those same ends.”
“Debbie wins the prize for tenacity in terms of standing up for refugee rights in America,” says James Hathaway, prominent international refugee law scholar and founding director of Michigan Law’s Program in Refugee and Asylum Law. “Literally nobody has fought the good fight as often as she has done. But she is also an intellectual trailblazer, having, in particular, developed a gender-inclusive understanding of refugee status, and having made the case for the alignment of American understandings of asylum with our international obligations. She truly is a hero.”
Groundbreaking scholarship and litigation
A pioneer in the development of clinical legal education in the immigration field, Anker joined the Harvard Law faculty in the early ’80s, as a lecturer on law and later clinical professor of law in 2008. Along with her colleagues Nancy Kelly and John Wilshire-Carrera, Anker founded the Harvard Immigration and Refugee Clinical Program, or HIRC, which has since become a model for similar clinics nationwide. Her book, “Law of Asylum in the United States,” first published in 1998 under the editorship of former student Paul Lufkin and now updated annually with a cadre of HLS student editors, remains the key authoritative text in the area. She also has authored numerous amicus curiae briefs in major refugee litigation, served as an expert witness before national and international fora, and helped draft national gender refugee guidelines.
Harvard Law Clinical Professor Sabrineh Ardalan ’02, Anker’s former student and the current faculty director of HIRC, credits its significant expansion over the decades to Anker’s “commitment to advocating for immigrants’ rights and dedication to responding to the evolving challenges facing immigrants and refugees in the U.S.”
In addition to the clinical work at Greater Boston Legal Services, overseen by Kelly and Willshire Carrera, “HIRC now includes two clinics, a student practice organization [SPO], and the Harvard Representation Initiative, which serves members of the Harvard community whose immigration status is at risk. In addition to the flagship Immigration and Refugee Advocacy Clinic, there is now a Crimmigration Clinic, led and directed by Phil Torrey, which focuses on cutting-edge appellate and district court advocacy at the intersection of immigration and criminal law. And through the HLS Immigration Project, the student-practice organization, students can hit the ground running with hands-on immigration and refugee advocacy their 1L year,” said Ardalan. “Debbie built a team at HIRC that now supervises over 140 HLS students each year through the two clinics and SPO and in so doing, centered immigration and refugee law as a core component of HLS’s clinical program.”
Credit: Tsar Fedorsky Anker (left) in 2011 with HIRC students Gianna Borotto ’11 and Defne Canset Ozgediz ’11, and Sabrineh Ardalan ’02. Ardalan is Anker’s former student and the current faculty director of HIRC.
Committed to justice from an early age
Raised in New York, Anker graduated magna cum laude from Brandeis University, and went on to earn her J.D. from Northeastern before continuing her legal studies at Harvard. Even before she began formal studies, Anker was invested in the study of and advocacy for human rights. She credits that in large part to her family history and values: Her Jewish grandparents crossed the Atlantic to escape the persecution leading to the Holocaust, and both of her parents were committed public school educators. Her father was a New York City Schools chancellor during desegregation. “The belief in the equality of all people was central to how I was raised,” she said.
“From my family I got deep beliefs and commitment to anti-racism. I have a strong memory of my father telling me about Ralph Bunche, a Nobel Peace Prize recipient, one of the founders of the United Nations, leading actor in the mid-20th-century decolonization process and U.S. civil rights movement, and recipient of the Presidential Medal of Freedom,” said Anker. According to her father, Anker reports, Bunche was discriminated in obtaining housing, and refused membership in a neighboring tennis club in the area of Queens where Anker’s family moved in her early teenage years. “That was something that stuck with me,” she said. Early in her legal career, Anker represented a Black family that had moved into Dorchester during desegregation and was subject to violent attacks; this was one of the cases covered in J. Anthony Lukas’ classic 1985 book, “Common Ground.” “For me personally, a commitment to racial justice was central to my identity,” she says.
Anker credits the late Harvard Law School public interest professor Gary Bellow ’60, founder and former faculty director of Harvard Law School’s clinical programs, with advising, advocating and paving the way for her engagement in clinical education at the law school.
She also credits the ‘extraordinary determination and integrity’ of Lisa Dealy, former assistant dean of clinical education, with whom Anker worked closely, in helping to expand the school’s clinical program.
In 1984, when Anker, along with Kelly and Willshire Carrera founded the Immigration and Refugee Advocacy Clinic, the study of immigration law was still in its infancy, and clinical education was relatively new in legal education.
And, according to Kelly, Anker was writing the law from the beginning. “The article she co-authored on the legislative history of the Refugee Act [and] shaped how that law would be interpreted, with the U.S. Supreme Court citing it in support of an internationalist approach to refugee and asylum law, grounded in our treaty obligations, as signatories to the U.N. Protocol relating to the Status of Refugees,” said Kelly. “She authored some of the first empirical studies of immigration adjudication and co-authored the first study of the expedited removal process for addressing the claims of asylum seekers at the U.S. border.”
According to Willshire Carrera, Anker “believes in bringing the reality of the law as it is experienced by real people into the classroom and into scholarship. We developed an approach of ‘legal change from the bottom up,’ changing ground-level legal institutions, which set the stage for changes at higher levels, including in precedent decisions in the federal courts.” From its earliest years, HIRC worked to bring administrative decision-making out of the shadows, publishing administrative asylum decisions, which were otherwise inaccessible to advocates and researchers.
During these early years, Anker also worked with Hathaway, who developed a structured human rights approach to interpretation of refugee law, an approach HIRC would adopt including in much of its women’s refugee work.
Credit: Kris Snibbe/Harvard Staff Photographer Anker (pictured here in 2014) with (from left) Julina Guo ’14, John Wilshire Carrera, and Nancy Kelly. Wilshire Carrera and Kelly founded the Harvard Immigration and Refugee Clinic with Anker in 1984.
Anker’s background in racial justice led her to work with Haitian refugees beginning in the mid 1980s. “I got to know civil rights lawyer Ira Kurzban, who was leading the charge on behalf of Haitian refugees fleeing a horrible and violent dictatorship, which the U.S. had backed.” Among other work, Kurzban engaged Anker as an expert witness on U.S. asylum law, in challenges he brought based on discriminatory detention and treatment generally of Haitian refugees. She would continue to be called in as an expert, including later in challenges brought by Canadian NGOs in 2005 and 2017 to exclusionary policies of the Canadian government, refusing entry to asylum seekers coming from the U.S. under the Safe Third Country Agreement.
The Canadian Supreme Court will soon issue a ruling on whether the Canadian policy of returning asylum seekers to the U.S. complies with the Canadian Charter and international law. Canadian attorney Andrew Bouwer praised Anker’s work on the Safe Third Country Agreement and says he looks forward to her continued advocacy on these issues. “Professor Anker is a force of nature! Working with her on Canada-US border issues, especially the inhumane Canada-U.S. Safe Third Country Agreement, these past 17 years has been an incredible honor and a highlight of my practice.”
Also in the 1980s, Anker helped found the Boston Committee against Deportation, defending a group of Haitians who were arrested by immigration authorities as they attempted to organize a union at Faneuil Hall market place.
HIRC continued this work with Haitian refugees who fled again during the 1990s after the violent overthrow of Haiti’s first democratically elected president, Jean Bertrand Aristide. HIRC’s early engagement with Haitian refugees led to groundbreaking work on gender asylum. “After President Aristide was deposed, there were security forces who went into women’s houses (the men had mostly fled) and raped them, because they were known, or assumed to be, supporters of Aristide,” explained Anker. “So it was really rape used as punishment based on ‘political opinion,’ one of the grounds of protection in the refugee treaty to which the U.S. is a party.”
Working in conjunction with other groups, HIRC got the administrative Board of Immigration Appeals to recognize that this was a form of what the agency called “grievous harm,” which HIRC argued fit the concept of persecution. “This case, Matter of D.V., was the first administrative gender asylum decision; along with others, we were able to convince the board to publish it as a precedent decision,” said Anker.
Meanwhile, the group traveled to Haiti to collect affidavits; their work ultimately led the Inter-American Commission on Human Rights to make the first finding by an international human rights body that rape could constitute torture.
This in turn contributed to greater global awareness of violence against women within a human rights framework. Canadian NGOs and academics took the lead, particularly through the Canadian Immigration and Refugee Board. “The Canadians worked up an amazing series of guidelines, and we [the HIRC] took those and adapted them to American law,” Anker said. “We published these and asked the U.S. government to take our guidelines and issue official government guidelines, based on them — and in fact, they did that.” Later, HIRC led a major amicus effort, drafting a brief to the then-attorney general signed by 187 organizations and individuals, arguing that violence against women in the “domestic” sphere, that is, in the home by sexual intimates, could be the basis for protection. Eventually the attorney general reversed an original denial and the petitioner, represented by the Center for Gender and Refugee Studies, was granted asylum.
(HIRC was) committed to having legal education grounded in actual clients’ experiences of persecution. … We set a precedent that law school clinics are not just a place to do policy work or major litigation, but also a place to engage with clients, to get to know them and to help them articulate their experiences. … I am grateful to the law school for allowing us to advance that approach to legal advocacy and education.
Deborah Ankernone
Personal involvement became key in Anker’s approach to teaching. “We were committed to having legal education grounded in actual clients’ experiences of persecution. Students represented clients and learned to help them tell their stories. We then gave them the time to reflect in class and to write about it. We set a precedent that law school clinics are not just a place to do policy work or major litigation, but also a place to engage with clients, to get to know them, and to help them articulate their experiences,” said Anker. “I am grateful to the law school for allowing us to advance that approach to legal advocacy and education. We now have such a rich and diverse clinical education program at the law school, which has developed in many different directions – client work, policy advocacy, regulatory reform, as well as litigation.”
Anker also points to the clinic’s work with the United Nations High Commissioner for Refugees (UNHCR) to develop general guidelines for international refugee law.
“My perception was that few academics and major practitioners around that time, the mid to late 1990’s, were thinking conceptually about this. Jim Hathaway’s work was a major force in bringing a principled, and importantly structured, human rights approach to interpretation of refugee law,” said Anker. “We got the UNHCR to adopt general guidelines recognizing gender itself as a category of protection within the refugee treaty’s ‘particular social group’ ground. In the amicus work we have done over the years, we have stuck to this approach and increasingly federal courts as well as some administrative decision makers are recognizing that gender itself can be a basis for protection, including in the ground-breaking 2020 First Circuit decision in De Pena-Paniagua v.Barr, which directly adopted language from HIRC’s lead amicus brief.”
HIRC has continued to expand its scope, working in recent years with students who were eligible for DREAM Act protection. Most recently, Anker and the group have worked on climate change and refugee law, pushing for interpretations of the law to account for the large-scale climate-based displacement that is already occurring in Central America and is expected to worsen. “We need to show decision makers and policy makers that displacement is caused by multitudes of factors and a person can qualify for protection if part of the cause is environmental,” said Anker.
“Our work has always been informed by what is happening,” Kelly said. “The gender work came from a sense of, ‘Where are the women in this system? They don’t seem to be represented’. The Haiti work was geared toward what happened to Haitian women after the coup in 1991. That brought the reality home of what was happening to Haitian women, and got that recognized in a legal context that could then be brought back to cases in the US. The two are integrally connected.”
“We pride ourselves on doing work from the ground up,” Willshire Carrera said. “We’ve had a large number of students who have gone on to be major contributors in the development of asylum law in the country. One thing for sure is that the clinic is now very well recognized. So much of that has to do with Debbie.”
Former students pay tribute
Ardalan, who now directs HIRC, acknowledges a significant personal influence. “Debbie has shaped the course of my life. I have learned so much from her advocacy and scholarship, from her empathy in working with clients, from her tremendous care for her students and colleagues, and from her incredible persistence in continuing to fight against injustice no matter what the odds. She has modeled for me how to approach teaching and lawyering with dedication, humility, strength, and compassion.”
Anker’s influence also goes far beyond Harvard Law School. According to Mark Fleming ’97, who studied with her at Harvard Law and is now a partner at WilmerHale, “Debbie’s contribution to how young lawyers thought about immigration law really can’t be overstated. She was the first person I met at HLS who was not only a gifted academic, but devoted to using her knowledge to represent clients. She used her knowledge to manage a significant group of people who were trying to push immigration law in a good direction and to help people who needed it. That was a new thing to me.”
Fleming currently does pro bono work in the immigration field and cites this as an example of Anker’s influence. “One of the more important lessons she taught me is that immigrants who come to our country are thrown into a very complicated system without anybody to help them. She showed me that things immediately change when a lawyer shows up, so a pro bono lawyer can make an enormous difference.” This, he said, goes back to his days at Harvard Law. “As a law student, the opportunity to walk down the street, to what used to be called Cambridge and Somerville Legal Services, had an impact. First of all, it was terrifying, because I had no idea what to do. But also very rewarding, because people in the system are otherwise forced to navigate it by themselves.”
“Debbie’s seminar influenced the way I think about asylum,” said Fatma Marouf ’02, who now directs the Immigration Rights Clinic at Texas A&M University School of Law. “The way she talked about absorbing each person’s story, I never forgot that. She walked us through each element of her incredible text about the law of asylum, and made sure we had a great understanding of it. She helped us connect the cases we were working on with the thinking behind it. And I loved that she really got in an international perspective — not just U.S. asylum law but how the U.K., Canada, Australia might approach it.”
Marouf particularly credits Anker with emphasizing the connection between asylum and human rights law. “When I teach my own clinic I talk about the importance of bringing in a comparative perspective of what asylum should be, versus how it is — and that’s all Debbie’s. I don’t know if I could have gone into immigration law without her, much less fallen in love with teaching.”
Credit: Brooks Kraft
“She built a program at a time when immigration clinics were not found at many law schools,” said David B. Thronson ’94, who went on to teach international human rights law at Michigan State University. “Part of what impressed me from the beginning is that her work is absolutely compelling and consequential; it changes peoples’ lives. You’re talking about people who are going to face persecution in their home countries if they are returned. It’s not an equal fight, the stakes and the consequences are high and their resources are often minimal; the government is always well represented but the migrant seldom is. To find someone with Debbie’s expertise and willingness to take on those issues — and who is also a tremendously human person that you can get to know — makes a huge difference, and it was a really defining law-school experience for me.”
That experience stuck with Thronson through his career. “I got the realization that things could go together; I could be a professor and still make a difference in the real world, representing clients — and hopefully I can do that in a way that lets my students grow and have good experiences. Debbie taught me that those aren’t mutually exclusive things to do.”
Another former student, Rebecca Sharpless ’94, now directs the immigration clinic at the University of Miami School of Law. “Debbie was the single most influential professor during my time at HLS. As I started my first year, I knew that I wanted to be a social justice lawyer, but I didn’t know what kind. Debbie taught me the urgency and importance of working with immigrants. Her work on some of the most difficult issues relating to the protection of refugees has been pathbreaking, but to me she is first and foremost a teacher and mentor. Under her guidance, I argued in immigration court, organized a trip to Miami to help Haitian refugees, and contributed to federal court briefing. Without a doubt, she made me into the immigration lawyer and teacher that I am today.”
Looking back on a lifetime of impact
Anker has been designated a Woman of Justice by the Massachusetts Bar Association, and in 2011 was elected as a fellow to the American Bar Foundation. The HIRC’s Women’s Refugee Project, which spearheaded work on gender asylum, received the American Immigration Lawyers Association’s (AILA) most prestigious “Founders Award.” HIRC also received AILA’s Human rights award for its work in clinical legal education and advocacy on behalf of refugees. Anker has received AILA’s Elmer Fried Excellence in Teaching Award; two awards for gender asylum work from the Federal Bar Association; the Massachusetts Governor’s New American Appreciation Award; and the CARECEN Award from the Central American Refugee Center.
Presenting her with the latter honor, lead attorney Patrick Young called Anker “one of the architects of modern refugee law. She really defined the field from its inception and her essays and her seminal treatise, ‘Law of Asylum in the United States,’ have helped educate and train two generations of asylum lawyers. Without her thoughtful guidance, it is doubtful CARECEN and many other refugee defense programs could have succeeded in protecting the persecuted as effectively as we have.”
In addition to those already mentioned, Anker notes that “HIRC and I are so fortunate to have on staff attorneys Sameer Ahmed, Jason Corral, Tiffany Lieu, Mariam Liberles and Cindy Zapata. HIRC’s staff also includes our head of social work, Liala Buoniconti; paralegal Karina Buruca; Mary Hewey; and Anna Weick, our chief administrator.” Anker credits her faculty assistant, Sophie Jean, as being an incredible resource, organizing work on “Law of Asylum” research with students, among other invaluable assistance. “Not much can be accomplished without her amazing intelligence and commitment, and of course thank you to those who have come and gone like the incomparable Jordana Arias, a force of nature, and all my assistants going way back to wonderful Delona Wilkins.”
In entering emerita status, Anker reflects back with much gratitude at the opportunities she has been given. “I love this community and I love this work. It truly has been an honor. I am so very grateful.”
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Thanks and many congrats, Debbie, my long-time friend, for all you have done for due process, justice, humanity, and the future generations of the “New Due Process Army!” I wholeheartedly concur in the comments of my friend and Round Table colleague “Sir Jeffrey!” Through your intellectual brilliance, moral courage, extraordinary leadership, and ability to teach and inspire others, you have certainly left a permanent mark on the worldwide, eternal quest for justice!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Sir Jeffrey Chase forwards our Round Table’s latest effort to promote reality, reasonableness, and due process in EOIR’s dysfunctional world:
Amici curiae are 38 former immigration judges (““IJs””) and members of the 2
Board of Immigration Appeals (““BIA””).2
Amici have dedicated their careers to improving the fairness and efficiency of
the United States immigration system, and have an interest in this case based on their combined centuries of experience administering the immigration laws of the United States. Amici collectively have presided over thousands of removal proceedings and thousands of bond hearings in connection with those proceedings, and have adjudicated numerous appeals to the BIA.
In denying Anderson Alphonse’’s (““Mr. Alphonse”” or ““Petitioner””) petition for writ of habeas corpus, the United States District Court for the District of Massachusetts (Saylor, J.), relied in part on the premise that it was ““readily foreseeable that proceedings will conclude in the near future”” because Mr. Alphonse’’s appeal to the BIA was ““fully briefed.”” This premise—at best aspirational when made in January 2022—has proven erroneous: nearly six months later, Mr. Alphonse’’s BIA appeal remains undecided. This is, regrettably, unsurprising given the surging caseload in the immigration courts, which now exceeds 1.8 million
1
1Amici state that this brief was not authored in whole or in part by counsel for any
party, and no person or entity other than Amici or their counsel made a monetary contribution to fund the preparation or submission of this brief.
2
2 See the appendix for a complete list of signatories.
pending cases. This crushing backlog—adding significantly to the backlog facing the BIA—-iis extremely relevant to the question of when a removal proceeding is likely to conclude. In fact, it might be the most important factor in this equation. Yet this factor is absent from the First Circuit’’s current analytical framework, opening the door to erroneous suppositions and conclusions based on a cursory review of a removal proceeding’’s posture, such as the one made by the District Court here.
Thus, Amici write to respectfully urge the Court to reassess the impact the backlog of cases facing the immigration courts may have on the ability of courts to accurately forecast when removal proceedings will conclude. Given their extensive experience with the immigration courts and BIA appeal process, Amici are uniquely positioned to provide insight into this narrow, but critical, issue.
The case is Alphonse v. Moniz, currently pending in the 1st Cir. Here’s a complete copy of our brief:
Many thanks to our wonderful pro bono counsel Matthew Levitt and Evan Piercy at MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
Although BIA decisions, particularly in non-detained cases, might take many months or even years to decide, the appellant is given only a relatively short period of time to file a brief — 21 days. A single 21 day extension may be requested and is usually granted, although it is common for the appellant not to be notified that the extension has been granted until after the extension period has expired.
Requests for additional or longer extensions are rarely granted. Motions to accept late-filed briefs, even those only a day or two tardy, are often denied. On the other hand, failure to file a timely brief after requesting a briefing schedule is a potential ground for summary dismissal of an appeal regardless of the merits! 8 C.F.R. § 1003.1(d)(2)(i)(E).
These rigid procedures might give the false impression that the EOIR system is driven by a sense of urgency in dispensing justice. Additionally, BIA and AG decisions often disingenuously pontificate about the supposedly “critical importance” of finality in immigration decisions. It’s all BS!
As you might note, the only “urgency” at EOIR is the potentially severe consequences imposed on the appealing party, usually the migrant. One the “compressed briefing” is complete, there is no particular assurance that the appeal will be decided on the merits for months, years — or ever! Additionally, the BIA can sometimes make dismissal of an appeal easier by ignoring an untimely brief or even by summarily dismissing an appeal for failure to file a brief without dealing with the merits.
Moreover, the hopelessness of the 1.82 million case EOIR backlog and the “assembly line justice” encouraged by EOIR’s “political masters” at DOJ results in a sloppy, “haste makes waste” approach to “justice.” This, in turn, means wrongful removals or unnecessary “remands” from Circuit Courts.
But, not to worry — there is neither penalty nor accountability for the BIA’s poor performance. Wrongly deported individuals are “out of sight, out of mind” — assuming they are even still alive.
Moreover, court remands actually give the BIA unlimited opportunities to correct their sloppy and unprofessional work, often with the benefit of a more thoughtful analysis from the Circuit Court. Not that such beneficial treatment by the Circuit necessarily means the BIA will get it right on remand. The BIA has been known to get “chewed out” by Circuit Courts for ignoring or “blowing off” their mandates.
“Red flags” 🚩 should be popping up all over the Falls Church horizon — so big that even the often “asleep at the wheel” immigration policy folks at the Biden Administration can see them! But, don’t hold your breath! Our Round Table, however, will continue “speaking truth to power” and revealing the real, awful due process mess at EOIR.
The respondent in this case is ably represented by Associate Dean Mary Holper of Boston College Law and her Immigration Clinic. In a way, this is a classic illustration of why Garland has been unable to fix EOIR. Dean Holper is an accomplished, universally-respected litigator, teacher, writer, practical scholar, and administrator. She is exactly the type of NDPA All-Star/Expert whom Garland should have recruited on “Day 1,” brought in, and empowered to fix EOIR and reinstate and realize its due process mission. Instead, Garland’s EOIR continues to flail and fail while the talent who could fix it are lined up in court against him!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
“Sir Jeffrey” Chase reports:
9th Circuit Decision in U.S. v. Bastide-Hernandez
Hi all:Attached please find the published, en banc decision of the 9th Circuit issued yesterday in U.S. v. Bastide-Hernandez.As expected, the court held that the absence of a date and time of hearing does not deprive the Immigration Court of jurisdiction.
However, please note the concurring opinion of Judge Friedland, stating that although the court held that the issue is not jurisdictional, “there are strong argument for the contrary position,” adding that the Supreme Court may reach a different conclusion.
Judge Friedland also quoted our Round Table’s amicus brief at length, as follows:
“An amicus brief filed by former immigration judges elaborates on why it better serves clarity, efficiency, and due process to include the time and location of the hearing in an NTA in the first instance. As amici explain, incomplete initial notice documents create uncertainty both for noncitizens, who are left in the dark as to when and where a potentially life-changing proceeding will be held, and for immigration judges, who cannot be sure if a case can proceed. Amici also note that the Government’s notice-by- installment practice creates additional fact-finding obligations for immigration judges, who may need to look to multiple documents to determine whether informational gaps in the initial notice have been filled. And amici caution that, because immigration judges are already overburdened and face pressure to complete cases, ambiguities about notice may lead immigration judges to order noncitizens removed when they fail to show up at their hearings, even if the noncitizens never received notice of those hearings at all.”
I think that this lengthy reference demonstrates the importance of our work.
In the words of Ninth Circuit Judge Michelle Friedland (Obama appointee): “[I]t better serves clarity, efficiency, and due process to include the time and location of the hearing in an NTA in the first instance.”
What if we had an EOIR where all judges at the trial and appellate levels and all senior administrators were unswervingly committed to due process, fundamental fairness, and best practices?
Instead, we have a dysfunctional organization where DHS’s wishes, perceived expediency, and keeping the “political bosses” happy (thus providing “job security”) triumphs over the public interest and the cause of justice. Currently, we’re “saddled” with a broken system that sees Immigration Court as a “soft deterrent” rather than a dispenser of justice could actually make our immigration, human rights, and justice system run more smoothly by applying fair procedures and “best interpretations.” That would facilitate the legal admission of many more migrants, while starting to “disempower smugglers,” cut backlog, discourage poor practices at DHS Enforcement, promote consistency, and keep many disputes that should be resolved in favor of respondents out of the Article IIIs!
Better, more reasonable administrative precedents that adhered to the proper interpretations of asylum and protection laws and provided positive guidance on how to apply them to recurring situations would also “leverage” the Asylum Office by allowing many more cases to be granted at the first level. As long as the current lousy BIA precedents prevail, far too many cases will just be denied at the AO level and referred to Immigration Court — making it a colossal waste of time. “So-called streamlining” will only work if it results in significantly more AO grants of protection!
We “win some, lose some.” But, our Round Table’s cause is justice; we’re not going to give up until this system makes the long overdue, radical personnel, procedural, attitude, and “cultural” changes necessary to become the “best that it can be!”
That means fulfilling the Immigration Courts’ once and future vision of “through teamwork and innovation become the world’s best tribunals guaranteeing fairness and due process for all.”
Bonus Coverage:
“Sir Jeffrey’s” skills aren’t confined to the legal arena. Here are some pictures he took from his balcony of last night’s “Super Moon:”
“Super Moon” July 13, 2022 By Hon. Jeffrey S. Chase
Hon. Ilyce Shugall U.S. Immigraton Judge (Retired) Member Round Table of Former Immigration Judges
SUMMARY OF ARGUMENT
A criminal conviction vacated due to a substantive or procedural defect does not qualify as a “conviction” establishing a noncitizen’s removability under the Immigration and Nationality Act (INA). By the statute’s plain language, vacatur under section 1473.7(a)(1) conclusively establishes that the underlying conviction rested on a substantive or procedural defect: It allows people no longer in criminal custody to seek vacatur of convictions that were “legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.”
Even though a California court vacated the conviction of petitioner Jose Adalberto Arias Jovel under section 1473.7(a)(1), the BIA declined to sua sponte
2 Further statutory references are to the California Penal Code unless otherwise indicated.
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reopen Mr. Arias’ removal proceedings because it held that, as a noncitizen,
Mr. Arias had the burden to show that his conviction under section 1473.7(a)(1) was vacated on the merits, and Mr. Arias failed to meet that burden. If affirmed, the BIA’s holding creates several problems.
First, the holding requires IJs to second-guess a state court’s determination under section 1473.7(a)(1), despite the statute allowing vacatur only for prejudicial defects. The plain language of section 1473.7(a)(1) requires “prejudicial error” that renders the conviction “legally invalid,” and IJs should accept that the state court must have vacated the conviction due to a substantive or procedural error of law. Precedent requires IJs to apply the INA to a section 1473.7(a)(1) vacatur without second-guessing the state court’s ruling.
Second, even if a section 1473.7(a)(1) vacatur doesn’t conclusively establish a substantive or procedural defect, the burden is not on noncitizens like Mr. Arias to demonstrate their convictions were vacated on the merits. IJs are bound by Ninth Circuit precedent, which holds that the government bears the burden of proving whether a vacated conviction can still form the basis for removal. To shift the burden of proof to noncitizens (who do not have a constitutional right to counsel, may be detained, and often have limited English proficiency) is contrary to the law and will inevitably increase the likelihood of due process violations.
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Third, the government’s interpretation of section 1473.7(a)(1) will exacerbate the growing backlog of immigration cases and the enormous pressure that IJs face to eliminate the backlog. Given the severe time and resource constraints applied to the immigration court, deviating from the established law governing vacated convictions will greatly hinder the fair and efficient administration of immigration proceedings.
Many thanks to NDPA Superstar 🌟 Judge Ilyce Shugall for taking the lead on this!
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Here’s a nice “thank you” from respondent’s counsel Tomo Takaki at Covington & Burling, LA Office:
Dear former IJs and BIA members and GMSR Counsel,
Apologies for the delayed email, but thank you all again for your excellent and powerful brief. It was truly invaluable to get the perspective of former IJs and BIA members on this important issue, especially regarding the unworkability of the BIA’s decision here. It was particularly helpful to get GMSR’s appellate expertise on board here with such well-written advocacy. Our client, and many like him, I’m sure deeply appreciate your efforts on their behalf.
Best,
Tomo Takaki
Covington & Burling LLP
And, of course many, many thanks to our all-star 🌟 pro bono counsel Stefan C. Love and Tina Kuang ofGREINES, MARTIN, STEIN & RICHLAND LLP in Los Angeles. Couldn’t do it without you guys and your excellence in appellate advocacy!
Garland’s DOJ inexplicably defends a bad BIA decision, unworkable and slanted against immigrants! Why don’t we deserve better from the Biden Administration?
Why are scarce pro bono resources being tied up on wasteful litigation when Garland could appoint a “better BIA” dedicated to due process, fundamental fairness, practical scholarship, and best practices? Why not get these cases right at the Immigration Court level? Why not free up pro bono resources to represent more respondents at Immigration Court hearings? What’s the excuse for Garland’s poor leadership and lack of vision on immigration, human rights, and racial justice?
Sure, there have been a few modest improvements at EOIR. But, it’s going to take much, much more than “tinkering around the edges” to reform a broken system that routinely treats individuals seeking justice unfairly, turns out bad law that creates larger problems for our legal system, and builds wasteful and uncontrolled backlogs.
Accountability and bold progressive reforms don’t seem to be politically “in” these days.But, they should be! Responsibility for the ongoing mess at EOIR and the corrosive effects on our justice system rests squarely on Garland and the Biden Administration.
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
CBP: U.S. Customs and Border Protection (CBP) announced today it has completed the expansion of biometric facial comparison technology at all international airports across the United States to further secure and streamline international travel. This innovation effort is a critical milestone for the biometric Entry/Exit program and complements biometric boarding, which is currently at select departure locations.
Law360: An advocacy group and a trio of formerly detained migrants asked the U.S. Department of Homeland Security’s civil rights office on Thursday to investigate “system-wide abuses and deficiencies” in mental health care provided to those in U.S. Immigration and Customs Enforcement custody.
Guardian: The largest number of migrants in the caravan come from Venezuela, Cuba and Nicaragua – three countries whose authoritarian rulers Joe Biden has conspicuously refused to invite to the summit. But there are also Haitians, Salvadorans, Hondurans, Guatemalans and even citizens of India, Bangladesh, and several African countries.
NPR: We wanted to know more about what’s going on here, so we called Kate Melloy Goettel. She is the legal director of litigation at the American Immigration Council.
Reuters: The Biden administration is in talks with Spain and Canada about taking more Western Hemisphere refugees for resettlement, people familiar with the matter said on Wednesday, signaling possible commitments that could be announced at next week’s Summit of the Americas.
Reuters: More than a year into U.S. President Joe Biden’s sweeping effort to tackle the “root causes” of migration with aid to Central America, projects likely worth millions of dollars have been canceled or put on hold due to corruption and governance concerns, U.S. officials and others tracking the issue said. See also Harris’ tough task addressing migration to the southern border not getting any easier one year later.
NPR: People seeking asylum are still crossing and at least one shelter for them in Arizona is seeing record numbers. Seventy miles to the north of Nogales, the Casa Alitas Welcome Center in Tucson is taking in 375 people in a day, just a few days after the judge kept the closures in place at official southern ports of entry. See also How Asylum Seekers Cross the Border.
NYT: While countries like Germany and Canada have streamlined programs for asylum seekers and refugees — offering housing, food, work authorization and a monthly stipend to asylum seekers — the United States has strengthened enforcement at the border, while processing times for asylum applications have increased from weeks to months to years.
Law360: Recent guidance instructing U.S. Immigration and Customs Enforcement to drop nonpriority cases has brought welcome relief to some migrants, but the new policy seems unlikely to put a significant dent in immigration court backlogs.
Law360: U.S. consulates deny a majority of employer-sponsored visas for individuals hoping to obtain green cards, pointing to a lack of trust by the U.S. Department of State in its counterparts at Homeland Security and Labor, according to libertarian think tank The Cato Institute.
IDP: New York’s legislation follows the example of 15 other states that provide a remedy when notification is not given, which will help prevent unlawful deportation based on unfair and unknowing pleas.
CNN: It’s not clear how many migrants have been loaned phones as part of the program. ICE hasn’t released that data in its regular public updates about the program, and the agency didn’t respond to CNN’s questions about it. But lawyers and advocates who work with migrants told CNN the government-issued phones — which can only be used with the SmartLINK app and can’t make calls or access the internet — are becoming increasingly common.
Justia: The Fifth Circuit denied Petitioner’s petition, citing the efforts of the Haitian government following the attacks against Petitioner. Based on the government’s response, Petitioner could not show that the Haitian government was unable or unwilling to protect him.
LexisNexis: Because Yahm offered nontestimonial evidence of country conditions in Cameroon, the BIA erred by not considering it in the context of his CAT claim and instead treating Yahm’s lack of credibility as dispositive.
Law360: A Ninth Circuit panel on Friday upheld three class certifications in an action brought by immigrant detainees who said they were forced to work against their will and without adequate pay while in private U.S. Immigration and Customs Enforcement-contracted detention facilities.
Law360: A D.C. federal judge tossed the Southern Poverty Law Center’s claim that confinement conditions at Immigration and Customs Enforcement facilities impeded its clients’ access to attorneys, saying the issue arose from immigration removal proceedings the district court could not hear.
NIJC: The National Immigrant Justice Center (NIJC) and three people previously detained at different U.S. immigrant detention centers filed a federal civil rights complaint today demanding a system-wide investigation into Immigration and Customs Enforcement (ICE) failures to provide adequate mental health care for people in its custody and its abusive use of solitary confinement. Included with the complaint are declarations from three physicians with extensive experience working with individuals in ICE custody and documenting their conditions.
Law360: The federal government’s immigration powers don’t supersede a state’s power to enforce wage laws, the American Civil Liberties Union said when asking the Ninth Circuit to affirm that a private prison owes immigrant detainees $23.2 million in back pay.
NIPNLG: J.O.P. class counsel encourages practitioners to reach out promptly if you represent a J.O.P. class member who: (1) is facing an upcoming asylum merits hearing in immigration court; (2) has a pending BIA appeal of an asylum merits denial in immigration court; or (3) has a pending petition for review of an EOIR asylum merits denial in a U.S. court of appeals. Please contact Wendy Wylegala (wwylegala@supportkind.org) and Michelle Mendez (michelle@nipnlg.org) if you have a client in one of these situations.
AILA: CBP issued a memo that clarifies previous guidance implementing the CDC Order to ensure that it is consistent with Huisha Huisha v. Mayorkas decision, which found that the government may expel family units but only to places where they are “not likely to be persecuted or tortured.” See also CBP Clarifies Guidance Regarding Expulsion of Family Units Under Title 42.
AILA: USCIS updated its public charge resources webpage. The updates clarify that relatively few noncitizens are both subject to the public charge ground of inadmissibility and eligible for public benefits under the 1999 Interim Field Guidance. An updated question-and-answer section is also available.
AILA: Per USCIS, those seeking parole into the United States to attend a funeral or provide emergency assistance to a family member affected by the shooting at Robb Elementary School in Uvalde, Texas, can request urgent humanitarian or significant public benefit parole by filing Form I-131.
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
A key quote from the NPR report (Liz’s “Item 6” under “news”):
Shelter staff says what’s being left out of the bitter partisan immigration battles in Congress is the fact that so many people are fleeing dangerous situations right now, as violence and global instability has risen, especially in Latin America during the pandemic.
So, as more and more legitimate claims for protection arise abroad (completely contrary to nativist myths and also some of the Biden Administration’s blather), the U.S. continues to defy its own laws and international agreements, while using poor interpretations of law and “holdover” adjudicators to artificially “force down” asylum grants to dishonestly low levels. Meanwhile, refugee programs, which, if properly robust and competently administered, could alleviate both the need for journeys to the U.S. border and the danger that can involve, continue to languish — as if nobody in the Biden Administration has ever read the Refugee Act of 1980!
At the same time, there are jobs in our economy that asylum seekers could fill that would help everyone. Talk about dumb policies driven by fear, hate, and resentment!
“Gimmicks,” mindless “deterrents,” and false “silver bullet solutions” don’t cut it! They just waste money, deprive our nation of credibility, destroy lives, and increase human suffering.
No surprise:The Round Table, NAIJ, AILA, CGRS, HRF, HRW, ACLU, and many other experts have been “spot on” in their assessment of what it will take to restore order to the border, due process and fundamental fairness to the Immigration Courts (and also the failing Article III Federal Courts), and rational self-interest to immigration, human rights, and civil rights policies.
The GOP nativists and the Biden Administration — not so much.
Inside the Gulag In the fine tradition of Josef Stalin, like US Presidents before him, President Biden finds it useful to have a “due process free zone” to stash people of color.
The case is Miranda v. Garland, and it’s published:
Quote from Judge Marvin Quattlebaum’s wrong-headed decision, joined by fellow Trump appointee Judge Julius Richardson:
QUATTLEBAUM, Circuit Judge:
8 U.S.C. § 1226(a) permits the Attorney General to detain aliens1 pending their
removal hearings. And the Attorney General has adopted procedures for making that discretionary decision. Under those procedures, an alien is given notice and three opportunities to seek release by showing they are neither a flight risk nor a danger to the community.
A district court determined that a class of aliens had a likelihood of establishing that those procedures violated the Due Process Clause of the Fifth Amendment of the United States Constitution. That court then issued a preliminary injunction ordering, on a class- wide basis, that to continue detaining an alien under § 1226(a), the government must prove by clear and convincing evidence that an alien is either a flight risk or a danger to the community. The district court also required immigration judges, again on a class-wide basis, to consider an alien’s ability to pay any bond imposed and consider alternatives to detention.
However, under 8 U.S.C. § 1252(f)(1), the district court lacked jurisdiction to issue class-wide injunctive relief that enjoined or restrained the process used to conduct § 1226(a) bond hearings. As for the individual relief issued by the district court, the detention procedures adopted for § 1226(a) bond hearings provide sufficient process to
1 We realize that the use of the term “alien” has been the subject of some debate. See e.g., Martinez Rivera v. U.S. Att’y Gen., No. 20-13201, 2021 WL 2836460, at *7 (11th Cir. July 8, 2021). We use the term because Congress used it in the text of the applicable statutes, and the same term is used in the applicable regulations. Our use of the term “alien” is not intended to express any opinion, pejorative or otherwise, about the plaintiffs in this action or others challenging their detention under our immigration laws.
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satisfy constitutional requirements. For that reason, the aliens are unable to establish a likelihood of success on their due process claims. Nor have they shown that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor or that an injunction is in the public interest. Therefore, we vacate the district court’s preliminary injunction order.
Abetter quote from the only Panel Judge to get it right, Chief Judge Michael Urbanski of the WDVA, (an Obama appointee) sitting by designation:
While I am mindful of the executive’s vast authority over immigration, it must still
comport with constitutional safeguards. With this balancing in mind, requiring a detained noncitizen to prove he is not a danger to the community or risk of flight is unconstitutionally onerous on an already vulnerable group of defendants and violates due process. In sum, I respectfully dissent and would affirm the district court’s conclusion that the Due Process Clause requires the government to bear the burden of proof at § 1226(a) detention hearings and remand the case to the district court for consideration of § 1252(f)(1) and the availability of class-wide declaratory relief.
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Well, at least one judge got it right!
The Round Table ⚔️🛡 filed an amicus brief in support of the respondents in this case. Additionally, Round Table Member Judge Denise Slavin filed an affidavit (cited by the USDJ) before the United States District Court for the District of Maryland, at Baltimore. There, Hon.Catherine C. Blake, Senior District Judge, correctly ruled for the respondents. The Trump DOJ appealed, and Garland decided to continue to advance the prior Administration’s anti-due-process position before the Fourth Circuit.
Gosh, and Dem politicos wonder why it’s hard for them to gin up enthusiasm for the midterms!
Stacy Caplow Associate Dean of Experiential Education & Professor of Law Brooklyn Law PHOTO: Brooklyn Law website
“Sir Jeffrey” Chase reports:
Hi all:A new volume of the AILA Law Journal was released yesterday.It contained an article by Stacy Caplow, co-director of Brooklyn Law School’s Safe Harbor Project, called The Sinking Immigration Court: Change Course, Save the Ship.I’m not sure if all can access it, but the link is:
The Round Table of Former Immigration Judges, “a group of 51 former Immigration Judges and Members of the Board of Immigration Appeals who are committed to the principles of due process, fairness, and transparency in our Immigration Court system,” bears witness to the degrading of the court and, speaking with the voice of years of experience, has been an increasingly active and vocal critic of recent developments at the court both before Congress and as amicus curiae.
There are also citations to a couple of our group’s statements (including one to Congress) and an amicus brief filed with the Supreme Court in the footnotes.
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How come the Biden Administration, and particularly AG Garland, don’t “get it?”
An immigration judge has blocked the deportation of a Sacramento man to his native Iraq where he would face trial, and likely execution, for a terrorist murder — a murder that, according to a U.S. magistrate, took place while the man was in another country.
Omar Ameen was granted U.S. refugee status in 2014 by immigration officials who said he would face persecution in Iraq. But the U.S. government jailed him in August 2018 while Iraq sought to extradite him on a murder charge.
Last April, U.S. Magistrate Judge Edmund Brennan found that the crime Iraq accused Ameen of committing, the fatal shooting of a police officer in 2014 before his departure for the U.S., had taken place while Ameen was 600 miles away in Turkey, where he had fled from Iraq more than two years earlier.
U.S. Immigration and Customs Enforcement then sought to deport Ameen to Iraq, saying he had lied about his alleged terrorist connections and other subjects, and kept him in custody. But Immigration Judge Tara Naselow-Nahas of Van Nuys (Los Angeles County) ruled last week that Ameen could not be deported to Iraq because he was likely to be jailed and tortured there. She did not dismiss ICE’s claim that Ameen had made false statements, but said she found no evidence of terrorist connections.
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Read the rest of the article at the link.
Immigration Judges make critical life or death decisions every day. Yet the system suffers from gross inconsistencies, huge backlogs, lack of discipline, poor intellectual leadership, an appellate board mired in leftover Trumpism, and an Attorney General who generally has been slow to recognize the importance of Immigration Court reform and a focus on due process, fundamental fairness, expertise, and quality in his “wholly owned” system.
One of the lead attorneys for Mr. Ameen is Round Table stalwart and former Immigration Judge Ilyce Shugall!Congrats to Ilyce and her team!
Hon. Ilyce Shugall U.S. Immigraton Judge (Retired) Member Rounds Table of Former Immigration Judges
The whole issue is devoted to addressing the critical due process, fundamental fairness, and ethical issues in Immigration Court with articles by NAIJ President Judge Mimi Tsankov, Judge Samuel B. Cole, Professor Michele Pistone of the VIISTA Villanova Project and others in addition to Joan.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesHon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration Judges
More NDPA Training:Tomorrow and Saturday, the New York Asylum and Immigration Law Conference will be held virtually; Sue Roy and I are among the speakers, along with many other members of the NDPA.
On the line are millions of futures. Undocumented immigrants who fear being split from their American children and spouses, people facing persecution and death in their countries of origin, or those being sent to countries they haven’t seen in decades are all fighting for fair play and often literally their lives in courts ill-equipped to do them justice.
“Let’s make it absolutely clear: due process is suffering,” said Muzaffar Chishti, a senior fellow at the Migration Policy Institute. “There’s just no way around that.”
Chishti said he sees all the hallmarks of a strong administrative law system suffering in the nation’s immigration courts, which are housed under the Department of Justice in the executive branch of the federal government, not within the judicial branch.
“It is a system in crisis,” he said.
After Trump made hardline anti-immigration policies pivotal to his 2016 presidential campaign, he flooded courts with judges more inclined to order deportations, Reuters reported.
His administration hired so many new immigration judges so hastily that the American Bar Association warned of “under-qualified or potentially biased judges”, many of whom had no immigration experience.
And as officials such as then-attorney general Jeff Sessions made sweeping proclamations that “the vast majority of asylum claims are not valid”, judges simultaneously confronted performance metrics demanding they each race through at least 700 cases a year.
People ranging from asylum seekers forced to wait in Mexico to unaccompanied children crossing the border on foot, to longtime undocumented residents with families stateside end up appearing in court, often without attorneys to help them parse the country’s byzantine laws.
In a process smacking of a zip code lottery, one judge in New York may grant nearly 95% of asylum petitions while colleagues in Atlanta almost universally deny similar requests, creating a patchwork of standards.
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Read Alexandra’s full report at the link.
Garland’s stubbornly indolent approach to racial justice and due process at “Justice” endangers the lives of millions of vulnerable humans! PHOTO: Wikipedia Commons
Not news to Courtside readers or the millions whose lives and futures are caught up in Garland’s totally dysfunctional morass! And, that doesn’t even include hundreds of thousands of migrants orbited to danger under bogus “border closure” gimmicks that Garland and his ethically-challenged DOJ continue to defend!
Honorable Joan Churchill Retired U.S. Immigration Judge Member Round Table of Retired Judges
Many thanks to Judge Joan A. Churchill for spearheading this effort and for her many years of leadership and tireless dedication to the Article I Movement!
THE ROUND TABLE OF FORMER IMMIGRATION JUDGES February 18, 2022
The Round Table of Former Immigration Judges, composed of 52 for- mer Immigration and Appellate Immigration Judges, wholeheartedly endorses H.R. 6577. We urge its passage.
Members of the Round Table of Former Immigration Judges were appointed by and served under both Democratic and Republican administrations. Our periods of service on the bench span 1980 through December 2021. As former Immigration Judges, we are acutely aware of the systemic flaws in the placement of the Immigration Court within the Department of Justice, our nation’s highest law enforcement agency. Ever aware of our duty to exercise our independent judgment to accord due process, we conscientiously strove to do so throughout our years on the bench. However, challenges to our ability to do so were ever present. While we felt that we individually were administering impartial justice, we could not overcome the appearance of partiality, created by the structural flaw in the system, in the eyes of the parties and public.
Establishment of an independent Immigration Court under Article I of the Constitution is long overdue. On March 1, 1981 the Congressionally created bipartisan Select Commission on Immigration & Refugee Policy, issued its Final Report, entitled U. S. Immigration Policy and the National Interest, calling for creation of an Article I Immigration Court :
“The Select Commission recommends that existing law be amended to create an immigration court under Article I of the U.S. Constitution.” [pp. xxviii-xxix]
The Select Commission, which began its work in 1979, undertook an exhaustive study which ultimately identified and recognized the structural flaw which H.R. 6577 will finally correct. Steps taken by successive ad- ministrations since 1981 have not fixed the problem. Rep. Bill McCollum, (R FL), a prior Chair of the House Immigration Subcommittee, introduced several Article I Immigration Court bills over the years. It is not a partisan issue. The structure simply does not allow for truly impartial adjudication. Political policy making functions should not be commingled with adjudicative functions. Impartial adjudication is essential for due process. Congressional action is necessary to eliminate the systemic structural flaw. Passage of H.R. 6577 will do that. H.R. 6577 will establish a judicial structure for adjudicative immigration proceedings that will assure due process, an American value enshrined in the U.S. Constitution. We applaud the intro- suction of H.R. 6577 and look forward to its enactment.
“The question presented in this appeal—one which has led to a circuit split—is whether a conviction for falsely representing a social security number, see 42 U.S.C. § 408(a)(7)(B), is a CIMT. … The BIA explained that § 408(a)(7)(B) requires intent to deceive, and as a result Mr. Zarate’s conviction was for a CIMT. Noting that the circuits were divided on the issue, it quoted our decision in Walker v. U.S. Att’y Gen., 783 F.3d 1226, 1229 (11th Cir. 2015), for the proposition that, “[g]enerally, a crime involving dishonesty or false statement is considered to be one involving moral turpitude.” The BIA did not, however, address whether a violation of § 407(a)(7)(B) is inherently base, vile, or depraved. And that, as we will later explain, is a significant omission. … Our holding today does not foreclose the possibility that a conviction for a violation of § 408(a)(7)(B) may be a CIMT. But if the BIA is going to hold that it is, it will need to do what it has so far failed to do in Mr. Zarate’s case—it will have to apply its two-pronged moral turpitude standard in toto and decide whether the statute, under the categorical approach, involves conduct that is “reprehensible,” i.e., conduct that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Silva-Trevino, 26 I. & N. Dec. at 833–34 (internal quotation marks omitted). See also Simon-Kerr, Moral Turpitude, 2012 Utah L. Rev. at 1007–08 (criticizing courts for “ignor[ing] community moral sentiments when applying the [moral turpitude] standard”). We remand to the BIA for that purpose.”
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
My colleague Hon. “Sir Jeffrey” Chase of the Round Table 🛡⚔️ offers the following cogent “instant analysis:”
Besides from what this says about the BIA being too lazy and hellbent on affirming removal orders for even the 11th Circuit’s liking, this is really interesting in its addressing the issue of applying “community moral sentiments”.What community are we talking about, and at what period of time?
There’s also a concurring opinion that does a very deep dive into the process for determining whether a statute is divisible.Could you even imagine the BIA engaging in the necessary analysis?
“Deep analysis” isn’t exactly in the “BIA playbook” under Garland. No, Garland’s “good enough for government work culture” at the DOJ tolerates the “whatever it takes to get to ‘no’” standard that was instilled by Sessions and Barr and, remarkably, still permeates much of the BIA’s work that is being rejected by the Article IIIs.
I note that the “deep dive” concurring opinion referenced by “Sir Jeffrey” was written by Senior Circuit Judge Gerald B. Tjoflat, a 92-year-old Gerald Ford appointee whose intellectual engagement and analytical work product puts the Garland BIA to shame!
Joseph A. Vail Asylum Workshop shares valuable immigration insights in the era of the Biden Administration
Retired Immigration Judge, U.S. Immigration Court and Former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt discusses growing immigration court backlogs.
Feb. 7, 2022 – More than 350 practitioners attended the annual Joseph A. Vail Asylum Workshop recently. The four-hour virtual event held on Jan. 28 was presented by the University of Houston Law Center’s Immigration Clinic and co-sponsored by Interfaith Ministries of Greater Houston. Interfaith Ministries joined this year to shed light on the plight of Afghani refugees who have settled in Houston since the government in Afghanistan collapsed and the Taliban takeover.
The goal of the workshop was to provide an update on immigration practices since President Biden took office. For example, while Biden halted the building of the border wall between the U.S. and Mexico and removed Migrant Protection Protocols (MPP) – where asylum seekers must remain on the Mexican side of the border while awaiting U.S. immigration court dates – a federal court order forced MPP to be reinstated. Immigration court backlogs continue to grow with former Board of Immigration Appeals Chairman Paul W. Schmidt predicting them reaching over 2 million by the end of 2022.
The first panel, moderated by Immigration Clinic Director Geoffrey Hoffman, explored the Biden Administration’s focus on Prosecutorial Discretion, Deferred Action for Childhood Arrivals (DACA), Migratory Protection Protocols (MPP), recent circuit court decisions, Afghan and Haitian case precedents, and immigration court backlogs.
“I hope you are emboldened to take a pro-bono client,” said Hoffman. “You can reach out to any of us on this call and use us as mentors.”
Panelist Magali Candler Suarez, principal at Suarez Candler Law, PLLC warned practitioners that Title 42 – a public health and welfare statue that gives the Center for Disease Control and Prevention the power to decide whether something like Covid-19 in a foreign country poses a serious danger of spreading in the U.S. – was being applied to Haitians in a racist manner.
“Many Haitians are being turned back at the border,” said Candler Suarez. “They are being denied the right to apply for asylum.”
The second panel, moderated by Parker Sheffy, a clinical teaching fellow at the Immigration Clinic, was a refresher on asylum, withholding of removal and CAT. Panelist Elizabeth Mendoza from the American Immigration Lawyers Association (AILA), which supports immigration attorneys in this work, spoke about challenges because of newly appointed immigration judges and evolving Covid practices.
“Unfortunately, things are in flux this month,” said Mendoza. “It’s not out of the ordinary to be given conflicting information.”
Well known former U.S. immigration judge, Jeffrey S. Chase, was the final panelist in this group and focused on the future of asylum in the U.S. “The Biden Administation issued a paper on climate change and migration,” said Chase. “[What] they were really talking about [though was] asylum and how climate change will impact that.”
A third panel offered insights on the use of experts in removal proceedings. UH Law Center Professor Rosemary Vega moderated the discussion which ranged from psychological experts to country experts and where to find them.
“The Center for Gender and Refugee Studies has a giant list of experts on many topics,” said panelist and UH Law Professor Lucas Aisenberg. “It’s the first place I go to when I’m working on a case.”
The workshop wrapped up with speakers from Interfaith Ministries of Greater Houston explaining what it is like to be a refugee from Afghanistan and how hard it has been to meet the needs of Afghan refugees that have arrived in the last year.
“Two years ago, we resettled 407 Afghan refugees,” said Martin B. Cominsky, president, and CEO of Interfaith Ministries of Greater Houston. “Since September 2021, we have resettled 11,081 refugees.” He implored practitioners on the call to help in any way they can.
The Joseph A. Vail Asylum Workshop has been held annually since 2014 in memory of the University of Houston Law Center Immigration Clinic’s founder. Since the clinic’s inception in 1999, it has become one of the largest in the nation, specializing in handling asylum applications for victims of torture and persecution, representing victims of domestic violence, human trafficking, and crime, and helping those fleeing civil war, genocide, or political repression. The clinic has served over 2,000 individuals who otherwise could not afford legal services.
For a full list of speakers at this year’s event, click here.
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“Immigration court backlogs continue to grow with former Board of Immigration Appeals Chairman Paul W. Schmidt predicting them reaching over 2 million by the end of 2022.”
“Aimless Docket Reshuffling” is thriving @ Garland’s EOIR. Instead of gimmicks designed to “prioritize for denial and deterrence” (how about those “engineered in absentia dockets?”) why not work with the private bar and DHS to prioritize at both the Asylum Office and EOIR those with the most compelling cases from countries where refugee flows are well-documented?
For example, why not “prioritize” represented Uyghur and Afghani cases which should be “slam dunk” asylum grants? What’s the purpose of making folks who are going to be part of our society unnecessarily spend years in limbo?
Is anybody in the Biden Administration actually planning for a possible human rights catastrophe, or just waiting for it to happen and then declaring yet another “migration emergency.”
Contrary to the uninformed view of many, backlogs aren’t just a workload problem or a hindrance to enforcement. There are huge human, psychological, economic, societal, and institutional costs with maintaining large uncontrolled backlogs.
Most of those costs fall on the individuals with strong, likely winning cases who constantly are “orbited to the end of the line” to accommodate ever-changing, ill-advised, enforcement agendas and misguided “quick fix” initiatives. That’s so that DHS and DOJ can misuse the legal system as a deterrent — by prioritizing the cases they think they can deny without much due process to “send messages” about the futility of asking for protection or asserting rights in the U.S. legal system! And, those with strong cases (and their attorneys) “twist in the wind” as denials and deterrence are prioritized.
Trying to prioritize “bogus denials” (often without hearings, lawyers, time to prepare, or careful expert judging) also creates false statistical profiles suggesting, quite dishonestly, that there is no merit to most cases. These false narratives, in turn, are picked up and repeated by the media, usually without critical examination.
Like the “Big Lie,” they eventually develop “a life of their own” simply by repetition. When occasionally “caught in action” by Article IIIs, the resulting backlog bolstering remands and “restarts” are inevitably blamed on the individuals (the victims), rather than the systematic Government incompetence that is truly responsible!
The truth is quite different from the DOJ/DHS myths.Over the years, despite facing a chronically unfair system intentionally skewed against them, some hostile or poorly qualified Immigration Judges and Appellate IJs, and wildly inconsistent results on similar cases before different judges (so-called “Refugee Roulette”), asylum seekers have won from 30% to more than 50% of the time when they actually receive an opportunity for a full, individual merits determination of their claims.
But, getting that individual hearing has proved challenging in a system that constantly puts expediency and enforcement before due process, fundamental fairness, and human dignity! No matter how the Government tries to hide it, that means that there lots of bona fide asylum seekers out there whose cases are languishing in a broken system.
The creation of the USCIS Asylum Office was supposed to be a way of dealing with this issue through so-called affirmative applications and “quick approvals” of meritorious cases. But, during the Trump Administration even that flawed system was intentionally and maliciously “dumbed down,” “de-functionalized,” “re-prioritized,” and hopelessly backlogged. It was so bad that the Asylum Officers’ Union actually sued the Trump Administration for acting illegally.
More “gimmicks” like Garland’s failed “dedicated dockets” won’t fix his dysfunctional system. Fundamental leadership, personnel, substantive quality, procedural, and “cultural” changes are necessary to address backlogs while achieving due process and fundamental fairness at EOIR. Ironically, that was once the “EOIR Vision.” ⚖️ It’s too bad, actually tragic, Garland doesn’t share it!🤯
