"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.
🚩 Federal court knocks down key part of Florida’s anti-immigrant law temporarily – a massive win for immigrants’ rights against anti-immigrant state laws!
Today, the U.S. District Court for the Southern District of Florida granted a preliminary injunction in a lawsuit challenging the main provision of Florida’s anti-immigrant law SB1718. This means this part of the law is temporarily stopped while the full case continues to get litigated.
Spearheaded by anti-immigrant Governor Ron DeSantis, SB1718 has attacked immigrants in Florida in a multitude of ways, including the provision at issue in this lawsuit, which made it a crime to transport anyone into Florida who had not been “inspected” by the US government.
This had the effect of the state of Florida, through state criminal law, unlawfully enforcing federal immigration law, which hundreds of years of case law makes clear is a matter reserved for the federal government. The district court judge agreed (finding the Plaintiffs are likely to succeed on the merits of their conflict- and field-preemption claims).
Congratulations to the ACLU, SPLC, AIC, and AIJ who have led litigation on this case as well as my colleagues Immigration Impact Lab Senior Attorneys F. Evan Benz and Daniel J. Melo and AILA’s amicus committee for writing an excellent amicus brief in support of the lawsuit.
What can you do?
1. Spread the word. Help educate others about the importance of fighting for immigrants’ rights.
2. Celebrate. As we see more and more states seek to pass anti-immigrant laws at the state level following Florida and Texas’ lead, this decision is a milestone moment in advocates’ efforts to fight back. 🎉
Thanks, Adina, and way to go NDPA Team! The case is Farmworker Association of Florida v. Moody, No. 23-cv-22655 (Southern District of Florida, May 22, 2024). Expect Florida to appeal to the 11th Circuit, so, unfortunately, this isn’t the end of the matter.
Here’s a link to the decision by U.S. District Judge Roy K. Altman (Trump appointee):
Even as the national (non) debate on immigration deteriorates into lies, myths, and hate, there are still victories to be won by great, motivated lawyers dedicated to defending individual rights and the rule of law against political scofflaws like DeSantis and his nativist ilk!
Adina Appelbaum Director, Immigration Impact Lab CAIR Coalition Charter Member, NDPA PHOTO: “30 Under 30” from Forbes
NDPA Superstar 🌟 Adina Appelbaum writes on Linkedin:
Grateful for the opportunity to support undocumented students at Georgetown University tonight to learn about entrepreneurship options available to them as part of Georgetown’s UndocuHoya Month.
As a Georgetown University Law Center and Georgetown University McCourt School of Public Policy alumna, it was an honor to teach these brilliant students about how to navigate the immigration law, business, finance, and tax systems, so that they can become more financially empowered with the opportunities available to them through entrepreneurship.
If only all universities celebrated their undocumented students, and had people like Jennifer A. Crewalk, Ph.D. supporting them, like Georgetown.
Starting the training, it was surreal to speak about my own great grandparents who came to this country with nothing and survived by starting little candy, liquor, and grocery shops in Georgetown.
If they had been immigrants today, they would have been considered undocumented – there just weren’t the immigration laws in place at the time that labeled them as such.
Thanks, Adina, for posting this and for contributing your expertise to this program.
Proud to be part of the Georgetown U Community!
“If they had been immigrants today, they would have been considered undocumented – there just weren’t the immigration laws in place at the time that labeled them as such.”
So true for so many of us! How soon we as a nation forget our immigrant history and heritage!
Congrats, endless admiration, and much appreciation to all of these amazing and inspiring leaders! CAIR Coalition was a mainstay of the pro bono program during my tenure at the “Legacy” Arlington Immigration Court. Many outstanding leaders of the legal profession have been associated with CAIR. They have saved countless lives and made American society better and fairer!
As Courtside readers know, I am particularly proud of Adina Appelbaum, Program Director, Immigration Impact Lab.Here’s what I wrote about her in a past Courtside post:
I’m very proud to say that a member of the “CAIR Team,” Adina Appelbaum, program Director, Immigration Impact Lab, is my former Georgetown ILP student, former Arlington Intern, and a “charter member” of the NDPA! If my memory serves me correctly, she is also a star alum of the CALS Asylum Clinic @ Georgetown Law. No wonder Adina made the Forbes “30 Under 30” list of young Americans leaders! She and others like her in the NDPA are ready to go in and start cleaning up and improving EOIR right now! Judge Garland take note!
If only Garland had followed the advice of many of us to recruit amazingly talented expert leaders like Adina to reform and institutionalize due process at EOIR, the immigration “debate” would be completely different today!
This paper examines the staffing needs of the US Department of Justice’s Executive Office for Immigration Review (EOIR), as it seeks to eliminate an immigration court backlog, which approached 2.5 million pending cases at the end of fiscal year (FY) 2023. A previous study by the Center for Migration Studies of New York (CMS) attributed the backlog to systemic, long-neglected problems in the broader US immigration system. This paper provides updated estimates of the number of immigration judges (IJs) and “judge teams” (IJ teams) needed to eliminate the backlog over ten and five years based on different case receipt and completion scenarios. It also introduces a data tool that will permit policymakers, administrators and researchers to make their own estimates of IJ team hiring needs based on changing case receipt and completion data. Finally, the paper outlines the pressing need for reform of the US immigration system, including a well-resourced, robust, and independent court system, particularly in light of record “encounters” of migrants at US borders in FY 2022 and 2023.
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Wow! This is beyond amazing! Kudos and thanks to Don and Brendan for this incredibly helpful and informative analytical tool. Get the full report and access to all the charts and interactive features at the above link!
Just yesterday, my friend, Arizona “practical humanitarian” Robb Victor, was asking about how legislators and policy makers could do better planning for hiring Immigration Judges and Asylum Officers to reduce the backlog and address processing problems at the border. This is for you, Robb!
As Don and Brendan cogently point out, hiring alone can’t solve the problem! America needs positive, due-process-oriented, reforms to our legal immigration system embracing the reality and the economic power of robust orderly refugee and asylum acceptance and increases in legal immigration of all types.
The longer we ignore the need for these positive changes, and embrace the dangerous and defective myth that we can or should continue the failed program of attempting to enforce our way out of the migration realities and opportunities of the 21st century, the longer the disorder and grotesque waste of human lives and fiscal resources by our nation will continue.
The outcry of those claiming the United States has an “open border” reminds me of the “everything must go” or “for a limited time only” advertisements. People come only to discover it’s a bait and switch. Let me be clear: Migrants are not risking their lives solely because they believe false claims that the border is open. The overwhelming majority are fleeing desperate situations in their home countries; however, the drumbeat of “open borders ending soon” lends an urgency to their plight. Apprehensions of migrants entering illegally in December 2023 are projected to be a record high of 302,000.
The irony is that many conservative members of Congress try to blame the Biden administration for the surge in migrants, even though the U.S. Supreme Court has long interpreted the Constitution as giving Congress plenary power over immigration. Since the 19th century, this authority of Congress to control our national borders and determine whether a foreign national may enter or remain has been preeminent.
The executive branch is able to work only along the margins of immigration law through regulations and executive orders. When the Obama, Trump and Biden administrations tried to push these tools, the federal courts typically stopped them. Recent research by the Bipartisan Policy Center analyzing the border policies of the Obama, Trump, and Biden administrations alongside apprehension data did not find clear-cut evidence that any particular executive branch action was more effective than another.
. . . .
As others and I have stated, the migration pressures at the U.S. southern border are not due to lack of enforcement of U.S. law; instead, these pressures result in part from laws written to address migration flows that differed sharply from the numbers of people we are dealing with today. Current law is based on the assumption that most migrants apprehended along the southern border are solo adults who can be turned back easily because they are motivated by economic reasons. Yet migrants today include many more families and children, people fleeing violence, people displaced by climate change, people leaving failed states, and people who are being persecuted — people who are afforded protections under U.S. law.
Regrettably, the House-passed border security legislation, as well as several of the other alternatives Congress is discussing, naively offers to tighten up the enforcement and narrow the categories of people who might be eligible to enter. Do they really think that raising the bar will deter people who are running for their lives? Such reforms portend an increase in the urgency of desperate people and ensuing chaos.
Immigration has always been a phenomenon that drives America’s success story, that undergirds our greatness. Time is overdue for us to reform our immigration laws — to create new pathways and update the old ones — to better reflect the national interest and our values. It will not be easy, as few critical issues are, but it is imperative that Congress gets to work.
Ruth E. Wasem is senior fellow at College of Public Affairs and Education, Cleveland State University. She has more than 30 years of experience in U.S. domestic policy, including immigration, employment, and social welfare policies.
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Read Ruth’s full article at the link! Also, congrats, Ruth, on your new appointment as Senior Fellow at the College of Public Affairs and Education, Cleveland State University!
As Ruth points out, the reason why all reputable studies show little if any relationship of forced migration to changing precedents and policies in “receiving nations,” is in the nature of forced migration. Forced migration is forced by combinations of conditions at or near the “sending” countries that operate largely without regard to unilateral actions in the U.S. or any other major receiving nation or group of nations.
At best, such futile unilateral actions have marginal, transitory effects, usually by forcing strategy adjustments and pricing changes within the world of human smuggling. But, like most markets, the human trafficking market eventually adjusts and the next, largely self-inflicted, “border crisis” ensues.
And thus, the cycle continues, with receiving nations investing more and more and doubling down on “proven to fail” cruelty and deterrence. Rather than acting rationally and responsibly — by listening to experts and those with experience managing refugee migrations — politicos falsely claim that the reason for their failed policies were that they weren’t draconian or expensive enough. But, throwing more money and personnel exclusively at enforcement and deterrence never works in a practical sense.
What it does do, however, is give certain moneyed groups a huge interest in uncontrolled border militarization. It also causes cynical politicos, largely but not exclusively on the right, to invest in sure to fail policies that will be a rallying point for White Nationalists without actual disrupting the supply of exploitable, disenfranchised, largely disposable “cheap labor” popular with many U.S. businesses and political contributors.
Ruth’s article states important truths about the border and migration echoed by expert after expert that are consistently, shamefully, and improperly being ignored by legislators and other politicos. For example, another leading “practical scholar,” Professor Stephen Yale-Loehr of Cornell Law recently “warned that detaining and quickly expelling migrants before asylum screenings would not solve the influx problem for cities like New York, which is grappling with a surge of migrants.” Read more: https://loom.ly/CLCoxqA.
Professor Stephen Yale-Loehr Cornell Law
So cowardly and misguided is the GOP’s approach that they waste public funds on a disingenuous “show trip” to the Texas border, but lack the guts and human decency to meet with and listen to the folks actually affected by their toxic policies and proposals.
Melissa Del Bosque Border Reporter PHOTO: Melissadelbosque.com
As reported by Melissa del Bosque in The Border Chronicle (in her overall discouraging and depressing forecast of the deadly political shenanigans that will be rolled out by GOP nativists during the 2024 campaign):
MAGA extremists in the House of Representatives, holding emergency funding hostage for Ukraine, cut out early from Congress for Christmas vacation, but they were willing to shorten their holiday break to make an appearance in Eagle Pass, Texas, on January 3, setting the tone for the coming months leading up to the general election. House Republicans will begin holding hearings on border security in February and are planning to impeach DHS secretary Alejandro Mayorkas.
In Eagle Pass, House Speaker Mike Johnson, along with 60 other Republicans, held a press conference in front of coils of razor wire placed along the Rio Grande by Texas governor Greg Abbott’s Operation Lone Star. During the visit, Republicans declined to meet with local community leaders who had erected a public memorial in Eagle Pass for more than 700 people who had died trying to cross the border in 2023.
Expert organizations, like the Center for Migration Studies (“CMS”) with decades of experience studying what works and what doesn’t at the border have offered straightforward plans for “Managing the Border Without Sacrificing Human Rights,” only to have them arrogantly and insultingly ignored by Congress and the Biden Administration. See https://cmsny.org/statement-manage-border-without-sacrificing-human-rights/.
Michael Posner, Professor & Director, Center for Business and Human Rights at NYU Stern School of Business PHOTO: Linkedin
Long-time refugee expert/scholar Professor Michael Posner, writing in Forbes, also offers a far more nuanced and realistic approach to the b order that both parties are ignoring:
Rather than enacting the draconian measures Republicans are now proposing that will, in effect, deny everyone their right to seek asylum, the goal should be to strengthen the system so that the cases of genuine refugees are heard quickly, while those who don’t qualify are placed in deportation proceedings. The way forward is not to curtail everyone’s right to seek asylum, but to make the system both fairer and more efficient.
The idea that the constitutional right to due process and fundamental fairness and the right of refuge guaranteed by international agreements that we signed and long-standing domestic implementing laws are “negotiable” is simply outrageous and fundamentally un-American!
Meanwhile, Dems cower and run away from the border issue, apparently irrationally believing that ignoring it and ceding ground to the GOP will “make it go away” in 2024. News Flash: It won’t!
Sadly, while experts and advocates who actually understand the border and migration fruitlessly rally, demonstrate, write op-ed’s, and file research-backed reports in favor of protecting asylum rights, Senate Dems by most accounts are busy negotiating them away in response to GOP demands. See, e.g.,https://www.washingtonpost.com/politics/2024/01/10/senate-border-ukraine-negotiations/.
Ignoring the advice of experts and acting out of fear, myths, and bias seems to be the “order of the day” for both parties!🤯That’s a national problem that won’t be solved by ever more extreme and wasteful doses of cruelty, repression, and bogus “deterrence,” no matter how politically and financially profitable continued failure might be to some within our nation’s power structure.
WASHINGTON — An immigration judge and lawyer told a U.S. Senate Judiciary panel on Wednesday that an independent immigration court would help ease a backlog of more than 2 million pending cases.
Because the immigration court system is an arm of the U.S. Justice Department — the Executive Office for Immigration Review — each presidential administration has set immigration policy, and often those courts are subject to political interference, said Mimi Tsankov, an immigration judge, and Jeremy McKinney, an immigration attorney.
In the immigration court system, judges hold formal court proceedings to determine whether someone who is a noncitizen should be allowed to remain in the United States, or should be deported.
“Every administration has interfered with the courts. This undermines the courts’ integrity, and many of the executive branch’s manipulations of judges and their dockets simply backfire,” said McKinney, the former president of the American Immigration Lawyers Association.
Tsankov, the president of the National Association of Immigration Judges, said in order to alleviate the backlog of immigration court cases, Congress should establish an independent immigration court under Article I of the U.S. Constitution.
. . . .
“An independent board will begin the process of healing this broken system,” she said.
The witnesses also argued that many people going through the immigration system lack legal representation, which can greatly impact their outcome.
The top Republican on the Senate panel, John Cornyn of Texas, argued that most cases are without merit, as opposed to asylum cases, which are based on a credible fear of death or harm. He said that people are “clogging the courts” and are aware the severe backlogs will allow them to stay in the country. Some courts have backlogs until 2027.
Sen. Mazie Hirono, Democrat of Hawaii, pushed back.
“People who have attorneys are 10.5 times more likely to be granted relief,” she said. “So it is when they have attorneys that they can proceed with their asylum claims.”
She added that another issue is that many children who are unaccompanied, even some toddlers, are expected to legally represent themselves.
“There is no guarantee that children will also have a lawyer, and this is alarming because children are some of the most vulnerable people in our immigration system,” she said.
Cornyn said he did not believe that “the taxpayer should be on the hook” for paying for legal fees and representation.
McKinney said that those who have representation and are not detained are five times more likely to gain relief. Immigrants who are detained and have legal representation are 10 times more likely to be granted relief than those who do not have representation.
“The point is that representation ensures due process,” he said. “It also makes the system more efficient when all the parties know the rules and know how to present a case. Cases move faster.”
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Read the full article at the above link. You can also check out the full video of the hearing here:
In his opening statement, ranking GOP Sen. Cornyn made it very clear that fixing the Immigration Courts is a nonstarter for the GOP.
Instead of engaging on this critically important initiative, he wasted much of his introduction disingenuously repeating the oft-debunked claim of a connection between asylum seekers and fentanyl smuggling. See, e.g., “Who is sneaking fentanyl across the southern border? Hint: it’s not the migrants,”https://www.npr.org/2023/08/09/1191638114/fentanyl-smuggling-migrants-mexico-border-drugs.
Obviously grasping at straws, in the absence of any empirical support for his nativist “scare scenario,” Cornyn went so far as to suggest — of course without a shred of evidence — that perhaps “go-arounds” were smuggling fentanyl.
This theory appears particularly questionable in light of evidence that most fentanyl is successfully smuggled through ports of entry by U.S. citizens and legal residents. Why would cartels abandon proven successful methods of port of entry smuggling to entrust their cargos to individuals who might not even survive the border crossing and, if apprehended, would certainly be searched? Cornyn had no answer.
What does seem likely is that by concentrating border law enforcement largely on “apprehending” and fruitlessly trying to “deter” those merely seeking to turn themselves in to exercise legal rights, the USG has diverted attention and resources from real law enforcement like an anti-fentanyl strategy. That almost certainly would require undercover infiltration of smuggling rings — dangerous and sophisticated law enforcement operations far removed from “apprehending” folks who WANT to be caught because they were forced to leave their home countries, are unsafe in Mexico, and can’t wait to schedule asylum appointments at ports of entry through the badly flawed and inadequate “CBP One App!” Building a fair and efficient asylum system should even help CBP apprehend more of Sen. Cornyn’s “go arounds!”
But, Cornyn’s misdirection isn’t just a distraction; it’s actually dangerous! As the GOP has shown over and over, if you repeat a lie or myth enough times, folks start to believe it. Witness the demonstrably totally frivolous claims of election interference that drive much of the GOP’s agenda and has become “truth” for their misguided “base.”
A case in point is the outrageous political boondoggle recently carried out by Virginia’s right-wing Governor Glenn Youngkin. In response to Texas Gov. Greg Abbott’s White Nationalist plea, Youngkin wasted two million taxpayer dollars on a bogus detail of the National Guard to the Texas border, ostensibly to “protect Virginians from the scourge of fentanyl.”
What if Youngkin had spent the same amount of money supporting NGOs in Virginia struggling to resettle and represent migrants aimlessly bussed to the DMV by Abbott and DeSantis as part of a political stunt? Community social justice NGOs generally use funds more carefully and efficiently than GOP blowhards like Youngkin and co.
The GOP claim that most asylum claims are frivolous also is misleading. For those who can actually get a merits hearing on asylum at EOIR — often in and of itself no mean feat given the prevalence of “Aimless Docket Reshuffling” — TRAC statistics for FY 2022 show that 46% are granted. Seehttps://trac.syr.edu/whatsnew/email.221129.html#. And, this is in a system that is still heavily tilted against asylum seekers. EOIR still has many “holdover judges” from the Trump years who were hired not because of their expertise, qualifications, or reputations for fairness, but because their backgrounds indicated that they were likely to be unsympathetic to asylum seekers!
Admittedly, the manner in which EOIR keeps asylum statistics can make meaningful analysis difficult. For example, more than half of asylum “dispositions” are listed as “other” — which covers“abandoned, not adjudicated, other, or withdrawn,” a facially, at least partially, circular definition! Seehttps://www.justice.gov/media/1174741/dl?inline.
Moreover, since EOIR procedures generally require that all potential relief be stated at the time of pleading or presumptively be waived, prudence requires that the right to appply for asylum be protected, even if it is unlikely that the case will proceed to the merits on that application.
Also, it’s worth remembering that the Government already has a powerful tool for both identifying and quickly tossing frivolous asylum claims and expeditiously granting clearly meritorious claims to keep them out of the Immigration Court. It’s called the Asylum Office at USCIS! That despite much ballyhooed regulatory changes, DHS has failed to obtain “maximum leverage” from the credible fear/Asylum Office process is not a reason for eschewing EOIR reform!
What we can tell from the available data is that, rather than wasting more money on expensive and ineffective “deterrence gimmicks,” the best “bang for the buck” for the USG would be to invest in representation for asylum seekers and in a better, professionally-managed EOIR with better, independent judges, acknowledged experts in asylum law, who could “keep the lines moving” without denying due process or stomping on individual rights.They could also set helpful precedents for the Asylum Office. That’s what Congress and the Administration should be investing in.
Reforming the Immigration Courts and creating an independent Article I Court should be a high national priority. While no single action can bring “order to the border” overnight, fixing EOIR is an achievable priority that will support the rule of law and dramatically improve the quality and efficiency of justice at the border and throughout the U.S.
As Chairman Padilla (D-CA) said, this should be a bipartisan “no-brainer.” Just don’t look to today’s White-Nationalist-myth-driven GOP for help or rational dialogue on the subject.
Donald M. Kerwin, Senior Research Associate, University of Notre Dame
In forwarding this article, Don says: “The report makes the case that the backlog has nothing to do with the immigration courts and everything to do with systemic, unresolved problems in the broader US immigration system.”
The US immigration court system seeks to “fairly, expeditiously, and uniformly administer and interpret US immigration laws” (DOJ 2022a). It represents the first exposure of many immigrants to due process and the rule of law in the United States, and occupies an integral role in the larger US immigration system. Yet it labors under a massive backlog of pending cases that undermines its core goals and objectives. The backlog reached 1.87 million cases in the first quarter of FY 2023 (Straut-Eppsteiner 2023, 6). This paper attributes the backlog to systemic failures in the broader immigration system that negatively affect the immigration courts, such as:
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Visa backlogs, United States Citizen and Immigration Services (USCIS) application processing delays, and other bottlenecks in legal immigration processes.
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The immense disparity in funding between the court system and the Department of Homeland Security (DHS) agencies that feed cases into the courts.
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The failure of Congress to pass broad immigration reform legislation that could ease pressure on the enforcement and court systems.
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The lack of standard judicial authorities vested in Immigration Judges (IJs), limiting their ability to close cases; pressure parties to “settle” cases; and manage their dockets.
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The absence of a statute of limitations for civil immigration offenses.
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Past DHS failures to establish and adhere to enforcement priorities and to exercise prosecutorial discretion (PD) throughout the removal adjudication process, including in initial decisions to prosecute.
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The location of the Executive Office for Immigration Review (EOIR), which oversees US immigration courts, within the nation’s preeminent law enforcement agency, the Department of Justice (DOJ).
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The misconception of many policymakers that the court system should primarily serve as an adjunct to DHS.
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A past record of temporary judge reassignments and government shutdowns.
The paper supports a well-resourced and independent immigration court system devoted to producing the right decisions under the law. Following a short introduction, a long section on “Causes and Solutions to the Backlog” examines the multi-faceted causes of the backlog, and offers an integrated, wide-ranging set of recommendations to reverse and ultimately eliminate the backlog. The “Conclusion” summarizes the paper’s topline findings and policy proposals.
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This is a “treasure trove” of information about systemic failure of our Immigration Courts, for which I am deeply grateful to Don & Evin.
So, is EOIR a symptom or a cause of immigration dysfunction, or a mixture of both?
I’m inclined to believe that notwithstanding the evidence described in the article that EOIR is largely a “victim” of deeper problems in our immigration system, there is a strong case to be made that more principled Attorneys General, more courageous and talented EOIR personnel, and a Democratic Party with democratic values and a spine could have thrust EOIR into a due process and legal expertise leadership role, thereby making the current immigration system operate more fairly, efficiently, and in the public interest.
It’s a shame that we’ll never know the truth. That just leaves commentators and scholars to analyze the carnage and to speculate on “what might have been” or “what could be” in a different political atmosphere.
This is perhaps interesting, even significant, from an historical standpoint. But, the practical effect remains to be seen.
If I could have just one immigration “reform, it would be an Article I EOIR! Without due process, all other reforms and improvements are doomed to failure!
Last week, Mayor Bowser made a request for National Guard troops to be deployed to DC to help with the thousands of migrants arriving on charter buses from Texas and Arizona.
CAIR Coalition condemns this militarized response and calls for our government leaders to support and listen to the local groups that have consistently done the work on the ground to support the immigrant community in DC. There are other alternatives like providing additional funding to community groups to help with temporary lodging and other basic needs.
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Bowser’s semi-nonsensical “emergency request” seems to be nothing more than a “cheap publicity stunt” at the expense of vulnerable asylum applicants and those in the community who are assisting them! And, it worked! She got lots of “play” in the news media.
But, just how would the National Guard actually assist in this largely “manufactured” and unnecessary humanitarian “crisis?”
Will they be transporting migrants from DC to their final destinations? Helping them find lawyers? Explaining their reporting obligations to DHS and EOIR? Finding them shelter in the area? Providing meals and caring for children?
Gimmie a break! Misusing the National Guard like this would also make them less available for real crises where they could help — like the flooding disaster in Kentucky!
What’s needed, as pointed out by CAIR, is sensible supplemental funding for community organizations and others who have been helping migrants resettle and process their cases. Also, shame on the Biden Administration for not getting “ahead of the curve” to provide Federal Government support to counter this entirely predictable and wholly avoidable publicity stunt created by Texas’s White Nationalist, scofflaw Governor Greg Abbott and mindlessly advanced by Mayor Browser’s misguided request!
DC Values Coalition Statement in Response to Governor Abbott’s Announcement
Apr 08, 2022
On Wednesday, April 6, Governor Greg Abbott of Texas announced he will start busing immigrants to Washington, DC in response to the decision by the government to end Title 42. Title 42 is a cruel policy, which used the pandemic as an excuse to expel families and individuals from the United States under the guise of public health.
We as the DC Values Coalition condemn Governor Abbott’s announcement. We do not believe in using human beings to make political statements. Regardless of what happens next, DC welcomes all immigrants, including DACA recipients, TPS holders, refugees and asylum seekers from all nations to our area, offering them help and support.
Organizations in the DC Values Coalition will support these individuals with their needs and make sure that DC remains a place that is welcoming and safe for immigrants. We will also push to guarantee they are not detained and we will continue to advocate for ICE to exercise discretion in detention and deportation efforts.
The DC Values Coalition is a coalition of DC-based immigration legal and social service providers that seeks to defend immigrants’ rights.
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Many thanks to all concerned for this terrific response! I particularly appreciate the efforts of my friend Adina Appelbaum of CAIR Coalition, my former star student in Refugee Law & Policy at Georgetown Law, a former Arlington Immigration Court Legal Intern, and a “charter member” of the NDPA.
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“Oh Boy! Three material mistakes in one asylum case! Do you think our superiors in the enforcement bureaucracy will give us extra credit on our ‘move ‘em out without due process quotas?’ Being a Deportation Judge sure is fun!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Arita-Deras v. Wilkinson, 4th Cir., 03-05-21, Published
PANEL:GREGORY, Chief Judge, and AGEE and KEENAN, Circuit Judges
OPINION BY: Judge Barbara Milano Keenan
KEY QUOTE:
Maria Del Refugio Arita-Deras, a native and citizen of Honduras, petitions for review of a final order of removal entered by the Board of Immigration Appeals (the Board).1 The Board affirmed an immigration judge’s (IJ) conclusion that Arita-Deras was not eligible for asylum, withholding of removal, or protection under the Convention Against Torture (CAT). The Board: (1) agreed with the IJ that Arita-Deras failed to support her claims with sufficient corroborating evidence; (2) found that Arita-Deras failed to prove that she suffered from past persecution because she had not been harmed physically; and (3) concluded that Arita-Deras failed to establish a nexus between the alleged persecution and a protected ground.
Upon our review, we conclude that the Board improperly discounted Arita-Deras’ corroborating evidence, applied an incorrect legal standard for determining past persecution, and erred in its nexus determination. Accordingly, we grant Arita-Deras’ petition and remand her case to the Board for further proceedings.
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After eight years of bouncing around the system at various levels THIS “NotQuite Good Enough For Government Work” error-fest is what we get from EOIR! As I keep saying, no wonder they are running a 1.3 million case backlog, clogging the Circuit Courts with incredibly shoddy work, and in many cases sending vulnerable refugees back to death or torture under incorrect fact findings and blatantly wrong legal interpretations!
Again, nothing profound about this claim; just basic legal and analytical errors that often flow from the “think of any reason to deny” culture. EOIR just keeps repeating the same basic mistakes again and again even after being “outed” by the Circuits!
This case illustrates why the unrealistically high asylum denial numbers generated by the biased EOIR system and parroted by DHS should never be trusted. This respondent, appearing initially without a lawyer, was actually coerced by an Immigration Judge into accepting a “final order” of removal with a totally incorrect, inane, mis-statement of the law. “Haste makes waste,” shoddy, corner cutting procedures, judges deficient in asylum legal knowledge, and a stunning lack of commitment to due process and fundamental fairness are a burden to our justice system in addition to being a threat to the lives of individual asylum seekers.
Only when she got a lawyer prior to removal was this respondent able to get her case reopened for a full asylum hearing. Even then, the IJ and the BIA both totally screwed up the analysis and entered incorrect orders. Only because this respondent was fortunate enough to be assisted by one of the premier pro bono groups in America, the CAIR Coalition, was she able to get some semblance of justice on appeal to the Circuit Court!
I’m very proud to say that a member of the “CAIR Team,” Adina Appelbaum, program Director, Immigration Impact Lab, is my former Georgetown ILP student, former Arlington Intern, and a “charter member” of the NDPA! If my memory serves me correctly, she is also a star alum of the CALS Asylum Clinic @ Georgetown Law. No wonder Adina made the Forbes “30 Under 30” list of young Americans leaders! She and others like her in the NDPA are ready to go in and start cleaning up and improving EOIR right now! Judge Garland take note!
Adina Appelbaum Director, Immigration Impact Lab CAIR Coalition PHOTO: “30 Under 30” from Forbes
Despite CAIR’s outstanding efforts, Ms. Arita-Deras still is nowhere near getting the relief to which she should be entitled under a proper application of the law by expert judges committed to due process. Instead, after eight years, she plunges back into EOIR’s 1.3 million case “never never land” where she might once again end up with Immigration Judges at both the trial and appellate level who are not qualified to be hearing asylum cases because they don’t know the law and they are “programmed to deny” to meet their “deportation quotas” in support of ICE Enforcement.
Focus on it folks! This is America; yet individuals on trial for their lives face a prosecutor and a “judge” who are on the same side! And, they are often forced to do it without a lawyer and without even understanding the complex proceedings going on around them! How is this justice? It isn’t! So why is it allowed to continue?
Also, let’s not forget that under the recently departed regime, EOIR falsely claimed that having an attorney didn’t make a difference in success rates for respondents. That’s poppycock! Actually, as the Vera Institute recently documented the success rate for represented respondents is an astounding 10X that of unrepresented individuals. In any functional system, that differential would be more than sufficient to establish a “prima facie” denial of due process any time an asylum seeker (particularly one in detention) is forced to proceed without representation.
Yet, this miscarriage of justice occurs every day in Immigration Courts throughout America! Worse yet, EOIR and DHS have purposely “rigged” the system in various ways to impede and discourage effective representation.
To date, while flagging EOIR for numerous life-threatening errors, the Article IIIs have failed to come to grips with the obvious: The current EOIR system provides neither due process nor fundamental fairness to the individuals coming before these “courts” (that aren’t “courts” at all)!
Acting AG Wilkinson has piled up an impressive string of legal defeats in immigration matters in just a short time on the job. It’s going to be up to Judge Garland to finally make it right. It’s urgent for both our nation and the individuals whose rights are being stomped upon by a broken system on a daily basis!
Manning argues immigration judges must ask questions to develop the record for pro se applicants like Arevalo-Quintero about their PSG affiliations. She isn’t alone in her push for a different standard for pro se immigrants applying for asylum.
In an amicus brief, a group of retired immigration judges and former members of the Board of Immigration Appeals point to a Fifth Circuit opinion that says immigration judges have a duty to “seek clarification” and “ensure that the [PSG] being analyzed is included in his or her decision.”
Immigration judges “must remain neutral, but that does not mean that they are passive bystanders during immigration court hearings,” the brief states. “The regulations require IJs, for example, to explain the factual allegations and charges in ‘non-technical’ language.”
. . . .
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Read Brad’s full article at the link.
Many thanks to my“eagle eyed” friend Deb Sanders for sending this my way.
The Round Table 🛡⚔️ continues to play a positive role. Compare that with the unfailingly negative role of the current “EOIR Clown Show.”🤡🤮
In what hopefully will be a much better world after January 20, 2021, the Round Table could work with a “new EOIR,” led and staffed by real judges from the NDPA, on the practical legal and administrative reforms necessary for EOIR to become a “model court,” usingteamwork and best practices to guarantee fairness and due process for all. That’s actually what the “EOIR vision” was prior to the advent of the Bush II Administration in 2001.
That noble vision could still become a reality, but only if the Biden-Harris Administration evicts the “EOIR Clown Show” 🤡and replaces it with competent experts from the NDPA committed to due process for all. ⚖️🧑🏽⚖️🇺🇸🗽
Since taking office, President Trump’s administration has rained a hailstorm of policy actions on refugees and asylees. A newly published analysis identifies three types of policies: those that abandon longstanding U.S. legal principles and policies, most notably non-refoulement and due process; those that block the entry of refugees and asylees; and those that criminalize foreign nationals who attempt to seek asylum in the United States. Simply put, these are the As (abandoning), Bs (blocking) and Cs (criminalizing) of the Trump administration policies on refugees and asylees.
Historical antecedents of Trump’s policies may be found in the refusal to accept Jews fleeing Nazi Germany during World War II (abandoning) and the interdiction of Haitians trying to escape the violent regime of then-dictator Jean-Claude Duvalier that began in 1981 (blocking). The Trump administration’s “zero tolerance” policy of prosecuting even minor immigration offenses (criminalizing) harkens back to the early 20th century when the eugenicists warned of “inferior aliens” who were likely to be insane or criminal; however, now the federal government keeps asylum seekers locked in detention centers, often under contracts with the private prison industry. The criminalization of refugees and asylees in conjunction with the comprehensive sweep of his initiatives abandoning and blocking refugees and asylum seekers has sent U.S. humanitarian protection policy to an unprecedented nadir.
There is little evidence of a policy evolution or maturation over time. The Trump administration opened in 2017 with policies exhibiting all three ABCs: abandoning refugee admissions; blocking Syrian nationals from refugee resettlement; and expanding expedited removal and detention. The administration’s efforts to criminalize asylum seekers reached a crescendo in 2018 with “zero tolerance.” Policy initiatives in 2019 again drew on all three ABCs: A) setting refugee admissions for fiscal year 2020 at the lowest level since the passage of the Refugee Act of 1980; B) allowing state and local officials to refuse placement of refugees; and C) detaining migrant children and families indefinitely, including those arriving to seek asylum.
. . . .
Generous humanitarian policies require energetic civic engagement and steadfast legislative efforts. Restoring the policies of the past will not be sufficient in the years ahead, because past policies were prone to inequities and bottlenecks that arguably had a magnet effect for migrants with less compelling cases, and most certainly delayed relief for those who qualified. Policymakers would be wise to weigh the advice of researchers, experienced advocates and legal experts who call for the repeal of three particularly harmful provisions: the one-year deadline for filing asylum applications, expedited removal, and “safe third country” agreements.
A sound course of action is for Congress to establish, and the administration to execute, robust and fully funded refugee and asylum policies that are generous in their priorities, thorough in their review, and expeditious in their processing.
Ruth Ellen Wasem is a professor of policy practice at the Lyndon B. Johnson School of Public Affairs, the University of Texas in Austin, and a fellow at the Bipartisan Policy Center. She has testified before Congress about asylum policy, legal immigration trends, human rights and the push-pull forces on unauthorized migration. Follow her on Twitter @rewasem.
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Read Ruth’s complete article at the link.
We need a progressive, realistic, humane refugee and asylum policy.
A prerequisite to these efforts is an independent Article I U.S. Immigration Court comprised of judges with real life experience, demonstrated expertise in refugee and human rights laws, an unswerving commitment to guaranteeing due process and fundamental fairness for all, and the courage to stand up for the Constitutional and human rights of the most vulnerable among us, even in the face of abuses and bias from the other branches of Government.
The current legal framework for protection, although in need of forward looking reforms, is nowhere near as unfair, inhumane, dysfunctional, deadly, and counterproductive as the Trump regime has made it. Why? Because, for the most part, the Federal Courts have “gone along to get along” with the regime’s lawless nativist, restrictionist schemes and gimmicks, rather than standing up for due process, equal protection, fundamental fairness, human rights, and human decency.
That’s a serious problem for democracy. One that demands a critical re-examination of whom we are selecting for our Federal Judiciary and why, as a group, they have performed so poorly in thwarting racist and hate-driven tyranny by an out of control and fundamentally dishonest, bigoted, and biased regime!
The Department of Health and Human Services (HHS) Office of Inspector General (OIG)’s new report found the Trump administration’s policy changes in 2018 exacerbated the mental health needs of “unaccompanied alien children” in their custody. The unaccompanied alien children in this study are overwhelmingly asylum seekers from Central America. No one should be surprised that the OIG found two particular policies — separating children from their parents and prolonging the time children are in custody — are especially harmful to the children’s mental health.
Researchers, mental health professionals and policymakers have known for years that refugee children are likely to have experienced traumas that challenge their mental health. Studies in the United States and in Europe have established that asylum-seeking children and adolescents are likely to have post-traumatic stress symptoms, anxiety, depression and externalizing behaviors. Given that the escape of many of these Central American children was prompted by violence and deprivation in their home countries, they certainly are at high risk of developing mental disorders.
Last year I wrote that the Trump administration “knew it would cause lasting harm, and still took children from parents.” In July 2018, Jonathan White, the former deputy director of children’s programs in the HHS Office of Refugee Resettlement (ORR), testified to Congress that he had warned administration officials, early in the discussions to ramp up the zero tolerance toward asylum seekers, about the harm such policies pose to children. White argued that the separation of children from parents entails “significant risk of harm to children” as well as “psychological injury.” But administration officials overruled White.
The policy of family separation happens less frequently now; the Department of Homeland Security (DHS) reported that 911 children were taken from their asylum-seeking parents in the year after the June 26, 2018, court order to stop the practice. About 30 children whom DHS took from their parents during the peak of the policy in 2018 still remain separated from their parents. The new OIG report documents the deleterious effects this policy has had on the mental health of these children.
The House Committee on Oversight and Reform in July released a report of their investigation of the child-separation policy. The committee’s set of findings on how long children were held in custody is among the deeply troubling results — and not just because they found evidence the administration violated federal law on how long DHS can hold a child in detention. After DHS transferred custody to ORR, the committee reports that “records show that children of all ages were held in ORR custody for extensive periods of time.” The average was 90 days, with some children in ORR custody for more than 18 months.
When the committee’s findings are overlaid on the OIG study, the picture of the extensive damage to children’s mental health becomes even sharper. More precisely, the other policy the OIG found that was especially damaging to asylum-seeking children is the practice of prolonging the time children are in custody. “Facilities reported that children with longer stays experienced more stress, anxiety, and behavioral issues, which staff had to manage. Some children who did not initially exhibit mental health or behavioral issues began reacting negatively as their stays grew longer.”
If you are thinking that these compelling, thorough reports are prompting an end to this human tragedy — enter stage right the new DHS rule for the “Apprehension, Processing, Care and Custody of Alien Minors and Unaccompanied Alien Children.” This regulation takes aim at the 1997 court-ordered consent decree, known as the Flores settlement, that limits the detention of children and set standards for their care. Among other things, the new rule would allow DHS to indefinitely detain migrant families, including those arriving to seek asylum. Administration officials assured that they would provide high standards for the care of children. The official press release stated “all children in the Government’s care will be universally treated with dignity, respect and special concern, in concert with American values and faithful to the intent of the settlement.”
However, the new rule eliminates the requirement that facilities holding families with children be state-licensed facilities. DHS would be responsible for licensing the family detention centers. Given the reports this summer of squalid conditions at facilities overseen by DHS, including a scathing “management alert” report by DHS’s Office of Inspector General, a new policy of prolonged detention of families and children seeking asylum is frightful. Attorneys general representing 20 states have sued to stop the policy change.
Two wrongs don’t make a right — but they do make a place in this administration’s immigration policies.
Ruth Ellen Wasem is a professor of policy practice at the Lyndon B. Johnson School of Public Affairs, the University of Texas in Austin. She has testified before Congress about asylum policy, legal immigration trends, human rights and the push-pull forces on unauthorized migration. Follow her on Twitter @rewasem.
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Yup!
And, it’s only going to get worse, Ruth, as the Federal Courts have now joined in furthering and justifying the abuses of children, women, gays, and all migrants.
Astoundingly, we’re seeing an institutional failure of our democratic republic that took more than two centuries to build in a little more than two years of Trump’s lawless authoritarian rule.
Trump might not be the brightest bulb in the pack, but he has proved to have amazing talent for exploiting democracy’s weaknesses and co-opting and “weaponizing” supposedly democratic institutions to further his plan of destroying them completely. Lots of supposedly smart guys out there these days sucking up and doing his bidding.
Björklunden enjoys a loyal following among Door County residents and visitors, as well as Lawrence University alumni, parents and friends. The Boynton Society was formed to celebrate Björklunden and to secure financial backing for its programs. Those who support the mission of Björklunden make the Lawrence University Student Seminar programs possible for over 650 students each year as well as provide opportunities for the Lawrence University Conservatory of Music to perform in Door County.
Many Boynton Society members have attended summer seminars or spent time at the lodge during their years at Lawrence. Anyone who has been to Björklunden would agree that the experience can be life changing. Boynton Society members help to make sure that visitors of all ages will be able to enjoy the treasure that awaits as they venture into the “birch forest by the water” for years to come.
Who Chairs the Boynton Society:
Jone (LU’72) & Jeff (LU’70) Riester Co-Chairs, The Boynton Society
PROGRAM NOTE: Jeff and I were in the same class at LU, attended the Lawrence Campus in Boennigheim together, overlapped at Wisconsin Law, and lived to tell about it.
Who were the Boyntons and how did they relate to Lawrence University:
The Björklunden Tradition
Björklunden* vid Sjön, Swedish for “Birch Grove by the Lake” is a 425-acre estate on the Lake Michigan shore just south of Baileys Harbor in picturesque Door County. A place of great beauty and serenity, the property includes meadows, woods, and more than a mile of unspoiled waterfront.
Björklunden was bequeathed to Lawrence University in 1963 by Donald and Winifred Boynton of Highland Park, Illinois. The Boyntons made the gift with the understanding that Björklunden would be preserved in a way that would ensure its legacy as a place of peace and contemplation. Winifred Boynton captured the enduring spirit of Björklunden when she said of her beloved summer home: “Far removed from confusion and aggression, it offers a sanctuary for all.”
Since 1980, Lawrence has sponsored a series of adult continuing-education seminars at Björklunden, interrupted only by a 1993 fire that destroyed the estate’s main lodge. In 1996, construction was completed on a new and larger facility, and the Björklunden Seminars resumed. The magnificent lodge and idyllic setting create a peaceful learning environment. Seminars address topics in the arts, music, religion, history, drama, nature, and more. Seminar participants may enjoy a relaxing week’s stay at the lodge or are welcome to commute from the area.
Throughout the academic year, groups of Lawrence students and faculty come to Björklunden for weekend seminars and retreats. Each student at Lawrence has the opportunity to attend a student seminar at Björklunden at least once during their studies. Student seminars provide the opportunity to explore exciting themes and issues and the time and the environment in which to embrace those ideas and their consequences. The magic of a Björklunden weekend is in the connection between thought and reflection. Making that connection fulfills one ideal of a liberal education.
The two-story Björklunden lodge is a magnificent 37,000 square-foot structure containing a great room, muti-purpose and seminar rooms, dining room and kitchen, as well as 22 guest rooms. The lodge accommodates a wide variety of seminars, meetings, conferences, receptions, family gatherings, musical programs and other special events and is available for use throughout the year. In addition to the main building, the Björklunden estate also includes a small wooden chapel built in a late 12-century Norwegian stave church (stavkirke) style, handcrafted by the Boyntons between 1939 and 1947.
What does the hand-crafted Boynton chapel look like today:
Boynton Chapel BjorklundenInside the Boynton Chapel BjorklundenInside the Boynton Chapel BjorklundenInside the Boynton Chapel Bjorklunden
What did I say in my Lecture:
NOTE: This written version contains “bonus material” that was cut from the live presentaton in the interests of time.
“INTO THE MAELSTROM” — UNDERSTANDING AMERICAN IMMIGRATION IN THE AGE OF TRUMP
BOYNTON SOCIETY LECTURE
LAWRNCE UNIVERSITY, BJORKLUNDEN, CAMPUS
BAILEY’S HARBOR, WISCONSIN
August 10, 2019
Greetings, and thank you so much for coming out to listen this beautiful afternoon on a topic that has consumed my post-Lawrence professional life: American Immigration.
Whether you realize it or not, immigration shapes the lives of each of us in this room. It will also determine the future of our children, grandchildren, and following generations. Will they continue to be part of a vibrant democratic republic, valuing human dignity and the rule of law? Or, will they be swept into the maelstrom as our beloved nation disintegrates into a cruel, selfish, White Nationalist kleptocracy, mocking and trampling most of the principles that we as “liberal artists” grew up holding dear.
“The Maelstrom” Bjorklunden“The Maelstrom”
Many of you have thought about this before in some form or another. Indeed, that might be why you are here this afternoon, rather than outside frolicking in the sunlight. But, for any who don’t recognize the cosmic importance of migration in today’s society, in the words of noted scholar and country music superstar Toby Keith, “It’s me, baby, with your wake-up call.”
040601-N-8861F-003 Naval Support Activity Naples, Italy (Jun. 1, 2004) – Country singer Toby Keith sings at a recent United Service Organization (USO) sponsored concert held at Naval Support Activity, Naples, support site in Gricignano. Keith, joined by rock legend Ted Nugent will also be traveling to Germany, Kosovo and the Persian Gulf during the tour. U.S. Navy photo by Photographer’s Mate 2nd Class Lenny Francioni (RELEASED)
For, make no mistake about it, civilization is undergoing an existential crisis. Western liberal democracy, the rule of law, scientific truth, humanism, and our Constitutional guarantees of Due Process of law for all are under vicious attack. Evil leaders who revel in their anti-intellectualism and pseudo-science have shrewdly harnessed and channeled the powerful cross currents of hate, bias, xenophobia, fear, resentment, greed, selfishness, anti-intellectualism, racism, and knowingly false narratives to advance their vitriolic program of White Nationalist authoritarianism, targeting directly our cherished democratic institutions. And, their jaundiced and untruthful view of American immigration is leading the way toward their dark and perverted view of America’s future.
As fellow members of the Boynton society, I assume that all of you are familiar with our beautiful chapel, painstakingly hand-constructed by Winifred Boynton and her husband Donald – a true labor of love, optimism, humanitarianism, and respect for future generations. Here are the words of Winifred Boynton:
Boynton Chapel Bjorklunden Door County, WI
During those years the chapel was in the building, the world was being torn apart by the hatred and fighting of a war and we realized the tremendous need for centers of peace and Christian love for our fellow man. . . . We found ourselves selecting moments of great joy for the large murals. And, the decision to dedicate the chapel to peace was the natural culmination. [Ruth Morton Miller, Faith Built a Chapel, Wisconsin Trails, Summer 1962, at 19, 21-22]
Donald and Winifred Boynton
If Winifred were among us today, in body as well as spirit, she would approve of the learning, humane values, and concern for our fellow man fostered through our seminars this week and this program.
For those of you who weren’t able to join us this week, here are some of the “ripped from the headlines” items that we discussed in the American Immigration and Culture Seminar led by my good friend, the amazing Jennifer Esperanza, Professor of Cultural Anthropology at Beloit College, herself a first generation American whose family came from the Philippines, and me.
Professor Jennifer Esperanza Beloit College Anthropology Department
From Sunday’s Wisconsin State Journal: “Trump’s stamp on immigration courts; recent trend in judges is former military and ICE attorneys” and “Swamped courts fast-tracking family cases: Speeding up hearings aims to prevent migrant families from setting down roots while they wait to find out whether they qualify for asylum.”
From Monday’s Los Angeles Times: “’As American as any child:” Defunct citizenship query may still lead to Latino undercount.”
From Wednesday’s El Paso Times: “Mr. President, the hatred of the El Paso shooting didn’t come from our city: When you visit today, you will see El Paso in the agony of our mourning. You will also see El Paso at its finest.”
From Thursday’s New York Times: “Climate Change Threatens the World’s Food Supply, United Nations Warns.”
From Thursday’s Huffington Post: “Children Left without Parents, Communities ‘Scared to Death’ After Massive ICE Raids.”
From Friday’s Washington Post: “The poultry industry recruited them. Now ICE raids are devastating their communities: How immigrants established vibrant communities in the rural South over a quarter century.”
And, finally, check these out from today’s Washington Post: “When they filed their asylum claim, they were told to wait in Mexico – where they say they were kidnapped;” and “ICE raids target workers, but few firms are charged;” and “Pope Francis again warns against nationalism, says recent speeches sound like ‘Hitler in 1934.’”
Just before I came to deliver this lecture, I was on the phone with Christina Goldbaum of the New York Times who is writing an article on the Administration’s efforts to “break” the Immigration Judges’ union (of which I am a retired member) which will appear tomorrow.
Christina Goldbaum Immigration Reporter NY Times
Now, this is when, “in former lives,” I used to give my comprehensive disclaimer providing “plausible deniability” for everyone in the Immigration Court System if I happened to say anything inconvenient or controversial – in other words, if I spoke too much truth. But, now that I’m retired, we can skip that part.
IMPORTANT WARNING ENTERING NO BS ZONE
Nevertheless, I do want to hold Lawrence, the Boynton Society, Mark, Alex, Kim, Jeff & Joanie, you folks, and anyone else of any importance whatsoever, harmless for my remarks this afternoon, for which I take full responsibility. No party line, no bureaucratic doublespeak, no “namby-pamby” academic platitudes, no BS. Just the truth, the whole truth, and nothing but the truth, of course as I see it, which isn’t necessarily the way everyone sees it. But, “different strokes” is, and always has been, an integral part of the “liberal arts experience” here at Lawrence.
But, that’s not all folks! Because todayis Saturday, this is Bjorklunden, and youare such a great audience, I’m giving you my absolute, unconditional, money-back guarantee that thistalk will be completely freefrom computer-generated slides, power points, or any other type of distracting modern technology that might interfere with your total comprehension or listening enjoyment. In other words, I am the “power point” of this presentation.
Executive Summary
I will provide an overview and critique of US immigration and asylum policies from the perspective of my 46 years as a lawyer, in both the public and private sectors, public servant, senior executive, trial and appellate judge, educator, and most recently, unapologetic “rabble rouser” defending Due Process and judicial independence.
I will offer a description of the US immigration system by positing different categories of membership: full members of the “club” (US citizens); “associate members” (lawful permanent residents, refugees and asylees); “friends” (non-immigrants and holders of temporary status); and, persons outside the club (the undocumented). I will describe the legal framework that applies to these distinct populations and recent developments in federal law and policy that relate to them. I will also mention some cross-cutting issues that affect these populations, including immigrant detention, immigration court backlogs, state and local immigration policies, and Constitutional rights that extend to non-citizens.
Click this link to continue with the full version of the speech:
Three members of the fantastic Lawrence undergraduate student staff who attended the lecture told me afterward “We’re joining your ‘New Due Process Army.’” Thus, the “Brjorklunden Brigade of the NDPA” is born!
What did the Society members do after the “serious stuff” was over?
Partied, of course:
Who runs Bjorklunden?
Mark Breseman (LU ’78) Executive DirectorKim Eckstein Operations ManagerAlex Baldschun Assistant DirectorJeff Campbell Head ChefMark Franke General Maintenance MechanicLynda Pietruszka Staff Assistant/Weekend Manager
How can you join the Boynton Society or participate in future programs at Bjorklunden (you to not have to be a Lawrence University graduate, student, or otherwise affiliated with the University)?
When a problem is misdiagnosed, it is no surprise that it gets worse. The current “crisis at the border” is real, but one that results from flawed policy analysis and inappropriate policy responses.
The Department of Homeland Security (DHS) officials overseeing Customs and Border Protection (CBP) project that they will have over 100,000 migrants in their custody for the month of March, the highest monthly total since 2008. CBP reported that over 1,000 migrants reached El Paso on one day alone last week. As many border security experts have noted, these numbers are not unprecedented. Border apprehensions of all irregular migrants (including asylum seekers) remain lower than the peak of 1.6 million in fiscal year 2000.
The policy crisis we face is not one of the volume of migrants but the demographic mix of the migrants and the factors that are propelling their flight to the United States. Stuart Anderson, executive director of the National Foundation for American Policy and former senior official in the Immigration and Naturalization Service (INS) during the George W. Bush administration, makes a compelling case that the current apprehension statistics are not comparable to those of the past: “In the past, nearly everyone entering the United States unlawfully attempted to evade authorities, whereas today’s border crossers are mostly turning themselves in to Border Patrol agents and seeking asylum.”
Making matters worse, DHS uses dated policy tools that were crafted in response to young men attempting to enter the United States to work. The threat of detention was considered a deterrent for economic migrants. At that time, they most often were from Mexico and thus could just be turned around at the border because they came from a contiguous country.
Today, the migrants are families with children from the northern triangle countries. Rather than being pulled by the dream of better jobs, these families are being pushed by the breakdown of civil society in their home countries. As the Pew Research Center reports, El Salvador had the world’s highest murder rate (82.8 homicides per 10,000 people) in 2016, followed by Honduras (at a rate of 56.5). Guatemala was 10th (at 27.3). Many of them have compelling stories that likely meet the “credible fear” threshold in the Immigration and Nationality Act.
It is abundantly clear that policies aimed at deterring single men are inappropriate and that CBP is unequipped to deal with families seeking asylum. Journalist Dara Lind maintains that these policy inadequacies have contributed to death of multiple children in DHS custody. Former DHS Secretary Jeh Johnson recently stated that the Trump administration strategy at the border is not working because it does not address the underlying factors.
It is becoming clear that the harsh, capricious policies of the Trump administration are exacerbating the influx of asylum seekers from Central America. The Migration Policy Institute’s Doris Meissner, who served as the commissioner of the Immigration and Naturalization Service during the Clinton administration, understands these underlying migration patterns and policies. She recently responded to a question posed by NPR’s Steve Inskeep: “If you can explain, how would the administration’s actions to try to stop this flow actually make the flow worse?”
Meissner replied: “Because people are uncertain about what’s going to happen. They see the policies changing every several months. They hear from the smugglers that help them, and from the communities in the United States that they know about, that the circumstances are continually hardening. And so with the push factors that exist in Central America — lots of violence, lots of gang activity — they’re trying to get here as soon as they can.”
Fortunately, the United States has an array of policy options that would more effectively respond to the surge of families seeking asylum from Central America than the erratic and ill-conceived policies of the Trump administration.
Aid to Central America to stimulate economic growth, improve security and foster governance is a critical policy response to address the factors propelling migrants. Congress appropriated $627 million for these purposes, but reportedly the distribution of the funds is stalled because President Trump wants to cut the aid countries because they failed to stop the flight of their people. This is another misguided policy reaction — if these countries would crack down on people trying to leave, it would escalate people’s panic to flee.
As is often said, the most important step is to beef up the asylum corps in DHS’s Citizenship and Immigration Services and to fully staff the immigration judges in the Department of Justice’s Executive Office for Immigration Review. This action would enable expeditious processing of asylum claims in a fair and judicious manner — key to reversing the bottleneck of asylum seekers at the border.
Current law enables asylum seekers arriving without immigration documents to have a credible fear hearing and be released from detention pending their court dates. Those who establish that they have well-founded fear of returning home would be permitted to stay in the United States and those who do not would be deported. If DHS implemented our asylum laws to the fullest effect, it would increase the likelihood that migrants understood our laws.
Absolutely, Ruth! Basically what others and I who have spent years working in and studying this system have been saying all along.
The current law provides the necessary tools for addressing the only real border crisis: the humanitarian tragedy. But, this Administration has neither the competence nor the interest to address that problem in a constructive, effective, and humane manner. It wouldn’t fit their bogus White Nationalist false narratives and agenda.
That’s why we need “regime change” in 2020. Until then, we’ll have to rely on private groups, some states, and the New Due Process Army to keep the country functioning until we get better, wiser, and more competent leaders.
