"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“Can’t anyone here play this game?” The GOP lacks honesty and decency. The Dems lack vision and guts. The public is misinformed about the realities of immigration. Migrants and their supporters are caught in the crossfire of political failure! PHOTO: Rudi Reit Creative Commons
Lack of immigration reform hurts businesses and farmers, puts nation’s food supply at risk
Note the comments from immigration lawyer George Pappas in North Carolina.
The hostility is reflected in the immigration courts in Atlanta and in Charlotte, where the highest denial rates for asylum prevail,” he told USA TODAY. “They will not be talking about outsourcing workers or about education. The right wing base of the Republican party has used immigration as a political wedge issue to deflect attention and to deflect media, airwaves, and media space from real issues.
While undoubtedly the Immigration Courts in Atlanta and Charlotte do reflect the type of biased, anti-immigrant approach pushed by GOP politicos, today they are run by Dem AG Merrick Garland. He has failed to make needed reforms and changes at the top, starting with inept leadership from EOIR Headquarters and a precedent setting appellate board (BIA) that does not reflect the best-qualified expert judicial talent available who would implement due process, fundamental fairness, consistency, and best judicial practices nationwide.
Ironically, these values WERE once part of the “EOIR Vision,” abandoned and trashed by Administrations of both parties over the past two decades. For Dems who believe in the power of immigrants and immigrants’ tights, it’s now basically “Pogoland:” “We have met the enemy, and he is us.”
A number of the public comments in the articles also show gross misconceptions about the nature of migration, the goals of the GOP, the reasons why migrants can’t apply for asylum in a safe, orderly manner at ports of entry, the immense benefits to both the workforce and society brought by family-based immigrants and those seeking to enter as refugees and asylees, and the relationship between an improved economy and a sensible, robust, realistic approach to immigration (eschewed by the GOP; bobbled by the Dems).
Both parties have squandered opportunities to acknowledge truth, make the current system work better, and create order at the border. Neither has a serious plan for reform on its agenda.
Unlike the Trump “shut the border/build the wall” racist fiasco, Biden’s initial USCitizenship Act of 2021 had some good ideas. But, after quickly “throwing it out there,” apparently as a sop to those who helped elect them, the Administration shoved it in a drawer and forgot about it. Instead, they pursued a mishmash of “built to fail gimmicks,” bureaucratic bungling, broken courts, poor legal positions, lack of vision, inept PR, and weak leadership.
The failure of the world’s leading “nation of immigrants” to discard and disavow the racist nonsense on immigration and come together on realistic, forward looking, generous, welcoming immigration policies makes our nation look bad and robs us of opportunities to improve the economy and build for the future.
Wendy Young President, Kids In Need of Defense (“KIND”)
Dear Paul –
The entire team at Kids In Need of Defense is devastated by the news that at least 46 people were found dead in an abandoned tractor-trailer in Texas and more than a dozen others in the truck, including children, were taken to local hospitals for treatment. While we wait for more details to emerge, we wanted to share the following statement from our President, Wendy Young.
“As rising violence, natural disasters, and other threats force migrants to make impossible choices in their quest to find safety, our nation’s response cannot be to place families and children in further harm by indefinitely closing our borders to people seeking protection and ignoring the dangers they face in their home countries. This most recent tragedy and the disturbing rise in migrant deaths globally underscore the need to create safer pathways to protection for refugees. The Biden Administration should see this heartbreaking tragedy for what it is, a clarion call to abandon deeply flawed and dangerous immigration policies. It must reinstate humane and orderly processing, including reopening official ports of entry, hiring child welfare experts to care for and screen children, and provide fair adjudication of protection claims. It is time for the United States to regain its footing as a leader in the protection of migrant families and children.”
– The KIND Team
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The key part of Wendy’s statement: “including reopening official ports of entry, hiring child welfare experts to care for and screen children, and provide fair adjudication of protection claims.”
Denial rates for recent arrivals who manage to get hearings (see, e.g., Garland’s bogus “dedicated dockets,” — actually “dedicated to denial” and nothing else), many of them children and unrepresented, hover around 100%. They are “guided” by a “largely holdover,” anti-asylum BIA that lacks true asylum expertise and issues no positive precedents instructing judges on how to consistently and legally grant asylum. Consequently, there is no “fair adjudication” of asylum claims. That feeds the toxic nativist myth that nobody at the Southern Border is a “legitimate” asylum seeker.
Unless and until Garland tosses the unqualified jurists at EOIR and replaces them with experts committed to due process, fundamental fairness, and correct, generous, practical precedents and proper applications of asylum law, the system will remain in failure. It’s a monumental mistake by the Biden Administration not to fix that which they absolutely control — starting with the Immigration Courts at EOIR.
Refugees will continue to die at the hands of smugglers who were given control of our immigration system by the Trump Administration and remain empowered by Garland’s & Mayorkas’spoor performance combined with biased, White Nationalist, Federal Judges appointed by Trump at all levels of our failing justice system!
Today’s WashPost editorial described how far-right nativists have basically turned our immigration system over to smugglers:
The absence of any workable legal system that would admit migrants systematically, in numbers that would meet the U.S. labor market’s demand, is the original sin of the chaos at the border. That is Congress’s bipartisan failure, a symptom of systemic paralysis for many years. More recently, a public health rule has had the effect of incentivizing unauthorized migrants to make multiple attempts to cross the border. The rule, imposed by the Trump administration, retained for more than a year by the Biden administration, and now frozen in place by Republican judges, allows border authorities to swiftly expel migrants, but with no asylum hearings or criminal consequences for repeated attempts to cross the border. That has been a boon to migrant smuggling networks.
I take issue with the term “bipartisan failure” in the legislative context. It’s true that the Dems inexplicably squandered a golden chance to fix many immigration problems when they had 60 votes in the Senate in Obama’s first two years. But, before and after that time, the failure to achieve realistic, humane, robust legal immigration reform legislation has been on the nativist right of the GOP that now dominates the party. Pretending otherwise is useless and dishonest.
All of these proposals would have made long-overdue, common sense reforms to eliminate hopeless backlogs, benefit our economy, strengthen our legal system, and facilitate better allocation of Government resources. Yet, there has been scant GOP interest in improving the system. The GOP appears to believe that promoting a dysfunctional immigration system, denying human rights, and guaranteeing a large “extralegal population” available as scapegoats and exploitable labor best serves their parochial political interests.
And, speaking of useless and dishonest, here’s Leon Krausze, WashPost Global Opinions Contributor, on how the disingenuous performance of Texas Governor Greg Abbott and Mexican President Andres Manuel Lopez Obrador has helped fuel both resurgent Mexican migration and unnecessary deaths at or near the border. https://www.washingtonpost.com/opinions/2022/06/29/san-antonio-migrant-deaths-trailer-mexico-amlo/.
The “good guys” — those committed to due process, fundamental fairness, individual rights, equal justice, scholarship, and human dignity — need to fight back at every level of our political and judicial systems — while they still exist! Because if the GOP has its way, that won’t be for long!🏴☠️
GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina Vera
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Thanks to Professors Benitezand Vera for the great work for the NDPA that they are doing and the values they are instilling in their students. Just think what due process could look like in the Immigration Courts if all judges, trial and appellate, reflected those same values!
The concepts are actually very straightforward.
The Attorney General is a litigant before the Immigration Court. He or she can insert themselves in the process if they choose, to represent the Government as a litigant. But, the Attorney General should be treated as any other litigant — at arm’s length.
Individuals appearing before the Immigration Court are entitled to a fair and impartial independent adjudicator. As long as the Attorney General exercises control over the selection of judges, evaluates their performance, and can review and arbitrarily change their decisions, on his or her own whim, the system will remain unconstitutional and fundamentally unfair.
Interesting that law students see so clearly, recognize, and can articulate what Federal Judges, all the way up to the Supremes, legislators, and our Attorney General all fail to acknowledge and act upon. Hope for the future! But without better-qualified legislators, judges, and Executive Branch officials, will our justice system survive long enough to get to the future? Not without some very fundamental changes!
Every day, individuals have their constitutional, statutory, and human rights stomped upon, mocked, and abused by the broken Immigration Courts. Sometimes, Circuit Courts intervene to provide some semblance of justice in individual cases; other times they turn a blind eye to injustice and fundamentally unfair decision-making in the totally dysfunctional Immgration Courts.
But, nobody, but nobody, except members of the NDPA appears to be willing to recognize and act on the overall glaring constitutional and operational defects in the current Immigration “Courts” — that don’t resemble “courts” at all. That’s something that should concern and outrage every American committed to racial justice, equal justice for all, fundamental fairness, and constitutional due process!
EOIR and the U.S. Immigration Courts are an ongoing national disgrace — a festering sore upon democracy!🤮 Every day, they inflict unnecessary pain and suffering on those humans being abused by their fundamental unfairness and institutionalized chaos.!
How many ruined human lives ⚰️ and futures ☠️is it going to take for someone in the “power structure” to wake up and take notice!
A few “takeaways” from one of America’s leading “practical scholars:”
Think about a new start with a “clean slate;”
Deportation is “state violence;”
Immigration Courts are constructed to provide Gov. with an unfair advantage;
No rules, no due process, no justice;
Kudos to the NDPA & the Round Table;
Trump Administration spent inordinate effort improperly skewing the law to insure everything is denied and remove equible discretion from IJs;
Good provisions that provided discretion in the past to alleviate hardship and injustice have been eliminated by Congress: suspension of deportation, JRAD, 212(c), 245(i), registry (not repealed but now virtually useless b/c of 1972 cutoff date).
With the U.S. “on pace to encounter more individuals on the southwest border than we have in the last 20 years,” as Homeland Security Secretary Alejandro Mayorkas said in a statement March 16, immigration at the U.S.-Mexico border has emerged as one of the toughest challenges facing the Biden Administration. Last week, President Biden put Vice President Kamala Harris in charge of “stemming” the flow of migrants, Biden was questioned about the immigration situation at his first official press conference, immigrant detention centers began to fill up once again, and lawmakers from both sides of the aisle made trips to the border to publicize the issue and propose solutions.
Biden’s attempts to address immigration may be new, but the issue is one that has dogged his predecessors for decades. Since the 1970s, Republicans and Democrats alike have tried to address undocumented immigration by constructing ever more draconian policies of border control, deportation and detention—border theater that grabs headlines and sometimes leads to short-term change, but never actually solves the problem.
There’s a reason why the U.S. government has failed for so many years to “control” the border: none of these policies have addressed the real reasons for migration itself. In migration studies, these are known as “push” and “pull” factors, the causes that drive migrants from one country to another.
Today, the countries sending the most migrants to the U.S.-Mexico border–especially the Central American countries of Guatemala, Honduras and El Salvador–are experiencing a combination of push factors that include poverty and inequality, political instability, and violence. And while the current situation may be unique, it is also deeply rooted in history.
Many countries in Central America have struggled with poverty since the time of independence from Spain in the early 19th century. While they are beautiful countries that are rich in culture and history, that colonial past has meant they have historically been home to large, landless, poor, rural populations, including many indigenous people of Mayan descent. In the years after Spanish control, they were typically ruled by small oligarchies that disproportionately held wealth, land and power, and their economies were primary export-dependent, which brought great riches to landowners but also exacerbated and perpetuated inequality and the poverty of the majority. Those dynamics have carried forward to today. More recently, climate change–in particular, drought and massivestorms–has forced the vulnerable rural poor out of the countryside.
. . . .
And while many Central Americans could indeed qualify for asylum based on their experiences of persecution, the previous administration made every effort to limit their ability to obtain it. Now the Biden Administration must decide whether to restore the asylum framework, which has become the only possible path to legal migration (as well as safety and security) for Central Americans and other migrants who—due to these combined push and pull factors—are desperate to come to the United States.
Given the complicated and deep-rooted reasons behind migration, lawmakers cannot control or “solve” the ongoing crisis at the border by simply pouring money and resources into ever more militaristic border theater. It’s no wonder that decades of such policies have done little to change the underlying dynamics.
Instead, if Americans are serious about changing the situation at the border, we need to address the push and pull factors behind Central American migration. We need to acknowledge the reality of the U.S. economy (in particular, that it demands immigrant labor to work low-wage jobs) and work to construct new legal frameworks that reflect that reality. We need to target financial and logistical support to encourage Central American countries to address the poverty and inequality that fuel migration, rather than cutting foreign aid, as the Trump Administration did. We need to do all we can to end the pervasive gang violence that pushes so many migrants out of their homelands. And of course, we must continue to evaluate our own historical and contemporary role in creating the longstanding problems that are pushing Central Americans to migrate.
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Read the rest of Julia’s article at the link. One key truth: many more Central American migrants would qualify for asylum and be legally admitted to our society under a fair application of our asylum laws directed and supervised by real expert judges who scrupulously enforce due process and best practices on a now biased, unfair, and dysfunctional system!
“Stemming the tide” might be neither realistic nor possible at this time. But, controlling it, managing it humanely and legally, and regularizing it, while lessening the “push” factors should be achievable.
It would, however, require bold actions:
Recognizing the primacy of humanitarian protection laws and insisting on due process in implementing them;
Putting experts in humanitarian situations, due process advocates, diplomats, labor economists, and demographers in leadership positions; and
Embracing much larger levels of legal immigration, particularly from Latin America.
Vice President Kamala D. Harris Vice President of the United States (Official Senate Photo)
Unfortunately for Vice President Harris and the rest of us who want humane, realistic immigration policies, there are reasons for our half-century of overall failure on the border.
Bloated government bureaucracies, powerful corporate interests, nativist politicians, and even foreign leaders are heavily invested in expensive and guaranteed to fail “uber enforcement” gimmicks. Failure basically creates a never-ending demand for more: more enforcement agents, “civil prisons,” jailers, deporters, cars, trucks, guns, boats, ammo, walls, fences, technology, courts, judges, prosecutors, lobbyists, “baby jails,” processing centers, foreign aid that goes largely into the pockets of corrupt leaders and their cronies, and a never-ending supply of underground, low-wage, politically neutered workers.
Additionally, we now have an entire political party with an agenda of overt institutionalized racism, dehumanization of the other, and fear-mongering White Nationalist myths driving its bogus populist narrative.
None of these “architects and enablers of border failure and institutionalized racism” are going “quietly into the night.” They will fight tooth and nail to defend their sinecures, profitable empires, and politically useful White Nationalist myths.
The politician who finally breaks the deadly cycle of failure and human misery at our border, while harnessing and realizing the positive power of human migration, will become a hero for future historians and undoubtedly merit a chapter in a new edition of Profiles in Courage.
Sadly, such recognition and adulation is likely to come long after she is gone from the scene. Long term vision and moral courage are not necessarily rewarded with short-term political popularity. Just ask the few Republicans who voted in accordance with the overwhelming, basically uncontested, evidence of Trump’s “high crimes and misdemeanors!”
That’s why it’s a tough challenge even for someone of Vice President Harris’s undoubted intelligence and abilities. It’s up to those of us who believe in a better America to keep her from getting sidetracked and co-opted by the vested interests of failure and White Nationalist myth-makers and purveyors.
The answer to the question posed is actually simple. As of today, DHS Enforcement and politicos at the DOJ “own” the so called Immigration “Courts” lock, stock, and barrel!
That’s an overt violation of the clear Fifth Amendment requirement that those whose lives and property are at stake be judged by a fair and impartial adjudicator — by definition one who is an expert in asylum law, human rights, and has demonstrated the ability to conduct fair hearings.
That’s also bad news for the Hispanic Community, because for the last four years those wholly owned “courts” have been operating with a clear bias against the civil and human rights of people of color, with Hispanic migrants and asylum seekers being a particular target — one that has adversely affected, even terrorized, Hispanic communities throughout the U.S. Hispanics are also grossly underrepresented among the “Immigration Judiciary” at both the trial and appellate levels, as well as on the Article III Bench — despite there being scores of Hispanic and other lawyers of color out here who would be head and shoulders above many of those currently holding these critical “life or death” judgeships!
The real questions are:
1) What can we do about it, and
2) How can we get Judge Garland and others in the Administration to listen, put an end to “Dred Scottification,” and get started on the task of bringing due process and fundamental fairness to a totally dysfunctional and dangerously biased system?
Tune in on April 7 to join the dialogue on how we can finally force the U.S. Government to make good on its unfulfilled, even mocked, Constitutional promise of due process for all persons!
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)Gabe Gutierrez NBC News Correspondent Atlanta, GA
Reminds me of the essay I recently posted from my friend, Don Kerwin at CMS:
The number of unaccompanied children and asylum-seekers crossing the US-Mexico border in search of protection has increased in recent weeks. The former president, his acolytes, and both extremist and mainstream media have characterized this situation as a “border crisis,” a self-inflicted wound by the Biden administration, and even a failure of US asylum policy. It is none of these things. Rather, it is a response to compounding pressures, most prominently the previous administration’s evisceration of US asylum and anti-trafficking policies and procedures, and the failure to address the conditions that are displacing residents of the Northern Triangle states of Central America (El Salvador, Guatemala, and Honduras), as well as Venezuela, Cuba, Haiti, and other countries…
The real immigration crisis is not at the border, but in the failure to respond effectively to the conditions driving forced migration, to establish orderly and viable legal immigration policies, to legalize the increasingly long-tenured undocumented population, and to reform and invest sufficiently in the US asylum and immigration court systems.
Donald M. Kerwin Executive Director Center for Migration Studies
It also echoes the words of veteran journalist Marc Cooper, posted by my friend Dan Kowalski over on LexisNexis Immigration Community:
When I was in Mexico reporting on the exodus, I would talk with dozens of migrants who were just a an hour or two away from starting their trek and, to a person, not one of them said they paid any attention to new US laws and regs as they were determined to cross no matter what. And no matter the sacrifices.
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Even the WashPost editorial page writers “get” the reality of human migration in a way the nativist fear-mongers never will:
Yet despite fearmongering by Republicans, the current influx is neither a public health emergency nor a national security threat. The vast majority of those allowed to enter the country will join relatives here while their asylum claims plod along. That wait is too long — it can stretch to three years or more — and the administration insists it will shrink the backlog. It has also earmarked $4 billion in aid from the pandemic relief bill for Central America — with strings attached to prevent its misuse — to attack the conditions that make life miserable there and drive migrants to seek refuge in this country.
Dumping Asylum Seekers in Honduras Artist: Monte Wolverton Reproduced under license
Still, sadly, facts and reality seem largely irrelevant here.
Despite denials from Secretary Mayorkas, the Biden Administration appears to be believing Kevin McCarthy’s BS on some level.
Thursday, the Administration basically negotiated a “lite version” of Trump’s “Let ‘Em Die in Mexico” — essentially trading AstroZenica vaccine (which wasn’t approved for use in the U.S. anyway) for Mexico’s agreement to step up harsh enforcement measures against migrants crossing their Southern Border and to warehouse families arbitrarily rejected without due process by the U.S. under our bogus CDC directive. We already have seen how well that works out!
A girl peers out from an encampment at the U.S.-Mexico border where she and several hundred people waited to present themselves to U.S. immigration to seek asylum. / Photo by David Maung
Any way you cut it, the realities of human migration, the lives of the desperate individuals involved, the views of human rights experts and advocates, and our supposed commitment to international conventions, the rule of law, and Constitutional Due Process take a back seat when the “bogus border debate” shifts into high gear.
There is actually a very simple truth here: “Forced migration” is not “optional!” In fact, a number of forced migrants prefer “death in the attempt” to “death in place.”
Therefore, all the “deterrents,” “border militarization,” “Baby Jails,” and “stay home statements” won’t ultimately stop the inexorable flow (although they might temporarily divert, modulate, or vary it— usually just enough for the “powers that be” to declare “victory at sea” as a result of their failed policies while ignoring the human carnage and lost opportunities they leave behind).
Professor Philip G. Schrag Georgetown Law Co-Director, CALS Asylum Clinic, Author of “Baby Jails”
Sure, there is a timing factor. Weather, the “business plans” and propaganda of smugglers (Trump’s “enforcement only” policies have been a boon for them in more ways than one, not only boosting their fees, but diverting enforcement resources away from the “real” law enforcement problems at the border involving drugs and human exploitation), and Biden’s pledge to restore humanity and the rule of law to America all factor into the equation in some way.
But, they are not the the primary causes of forced migration, except to the extent that climatechange (ignored and worsened by Trump and the GOP) has aggravated the poverty and economic disorder in the Northern Triangle by destroying the livelihoods of many farmers and making their land essentially worthless.
Tone-deaf GOP politicos like McCarthy and Sen. Rob Portman (R-OH) apparently think the solution is to continue to mock the rule of law, violate the Constitution, and simply declare the Southern Border closed forever, al a Stephen Miller. Let families and children “die in place” in their home countries, die on the journey at the hands of other governments, or rot forever in Mexico — “Out of sight, out of mind.” As long as it isn’t happening in our country and being covered by our news outlets, who cares about human lives? That was certainly the Trump approach!
That’s hardly a “solution,” except in neo-Nazi or Soviet-era terms. The harshest and most inhuman approaches will, as they have in the past and continue to do, fail to stop desperate humans who want to survive from doing what’s necessary to save their lives and preserve their families’ futures, even when that interferes with the GOP’s “whitewashed” version of “American greatness.”
The solution involves following Constitutional due process, re-establishing the rule of law (including a radical “reform and replace” of our dysfunctional Immigration Courts), and adhering to our international obligations, both in letter and spirit. It also requires an expanded, much more robust, legal immigration system that reflects the demands of our economy, the needs of migrants, and the realities of human migration, particularly from Latin America. Like it or not, there will be more immigration.
As I have said before: “There are many ways in which we can diminish our own humanity, but none of them will stop human migration.”
Will G. Reaper Become The Lasting Image of America’s 21st Century Human Rights & Racial Justice Failures In The Eyes Of The Rest Of Humanity & Future Generations? Image: Hernan Fednan, Creative Commons License
Contrary to the GOP blather, immigration, voluntary, forced, coerced, legal, extra-legal, white, non-white, Christian, non-Christian, is what the real America is all about, for better or worse. Overall, immigration is a positive force for America.
Here’s a great essay on the positive nature of immigration by Pedro Gerson on Slate. Pedro isthe director of the Immigration Law Clinic at the Louisiana State University Law Center, and a former immigration staff attorney at the Bronx Defenders. The latter organization has been home to a number of notable members of the NDPA.
Pedro Gerson Director, Immigration Law Clinic LSU Law Center SOURCE: Twitter
As Pedro says, human migration to America will continue notwithstanding GOP xenophobes. The only question is whether we will have the wisdom and courage to work with and take advantage of its power in constructive, creative, forward looking ways, rather than trying to “recreate Jim Crow!”
Or, will we continue, as GOP restrictionists urge, to squander resources, goodwill, and human potential on futile efforts to eradicate what is perhaps the oldest and most fundamental phenomenon of human existence?
🇺🇸🗽⚖️Due Process Forever! Restore the rule of law! Fix The Disgraceful, Dysfunctional Immigration Courts, Judge Garland! End White Nationalist racism!
The Biden administration has signaled that it would like to narrow arrests and deportations to those persons convicted of national security threats and other serious felonies. That would keep many of those, like the fast-food worker in Indianapolis, from immigrant court.
But there’s a bigger challenge facing the Biden administration.
Can it wipe away rules that have fed into a mindset that seemed to take root nationally among some court and immigration enforcement officials?
The rules were meant to erase an immigrant presence in the U.S. And they came to life far away from the nation’s borders in the daily grind of the immigration courts. For well over two years, I sat in Chicago’s immigration court watching, reporting and wondering how his could be happening.
Day by day I watched as the crowds huddled anxiously in the Chicago court’s major waiting room grew. Judges’ caseloads, as listed on the waiting room walls, eventually doubled for some to as many as 100 a day.
Why?
When Trump took office there were 542,411 deportation cases in the nation’s immigration courts. When he left, the number was 1.29 million. The backlog grew as arrests grew, as more were detained, as bonds went up, and new rules raised new hurdles for immigrants in the courts. The average wait for a case in Chicago’s court was 945 days in 2016, and that grew to 1,014 in 2021, 14% higher than the national average.
The long wait perplexed a judge one day as she scanned her computer looking to schedule a new hearing. The best she could find, she told an Iraqi woman in her 80s, was a date four years down the road. The long delay was not lost on the woman’s lawyer’s face. The woman’s husband was not in court because he was facing brain surgery.
A series of canceled hearings left a middle-age Palestinian’s life dangling in the court for seven years. The long delay left him anxious and panicked about the fate of his family back home, where they faced the threat of violence that had already taken several relatives’ lives. He won asylum but several months later, and before he could bring his family to the U.S., his teenage son was killed, a targeted victim of the violence that had haunted him and his relatives.
I took note after the Trump administration said in August 2019 it would push older cases back in 10 courts across the U.S., including Chicago, so that cases involving newly arrived immigrant families could move more rapidly through the courts. It was a clear warning that the U.S. would deal quickly with immigrants arriving at its borders.
. . . .
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Read the complete op-ed at the link.
The solutions are not rocket science. As many of us have suggested they include:
New leadership at EOIR firmly committed to judicial independence, due process, best practices and competent judicial Administration;
New judges at the BIA — “practical experts” in asylum and immigration laws committed to due process, fair application of the law, and humane treatment of individuals;
Slash the docket immediately to manageable levels by removing aged cases that would fit the legalization proposals in the Biden Bill or where relief could be granted by USCIS;
Get recent arrivals represented and decide their cases on a fair, reasonable, timely, predictable schedule (e.g., end “Aimless Docket Reshuffling”);
Establish and implement merit-based criteria for recruitment and retention of judges.
It won’t happen without new personnel and different attitudes. There’s plenty of talent out here to rebuild a high-quality, expert, due-process oriented immigration judiciary. Judge Garland and his team just have to move out those who have created and furthered dysfunction and replace them with better-qualified pros who can get the job done for American justice and the millions of individuals whose lives, hopes, and futures are tied up in the EOIR mess !
Article I is the ultimate solution! But, Judge Garland can start making long overdue changes the day he is sworn in as AG (probably later this week). The only question: Will he?
A Better EOIR For A Better America!🇺🇸It’s not rocket science!🚀
Here’s the section relating to the Immigration Courts:
Title IV: Immigration Courts, Family Values, and Vulnerable Individuals
We are facing a due process crisis in the immigration courts. Nearly 1.3 million cases are currently pending in a structurally flawed system housed within a
prosecutorial agency, the U.S. Department of Justice (DOJ).4 While this bill
4 https://trac.syr.edu/immigration/reports/637/.
10
falls short of creating an independent Article I immigration court,5 provisions in the bill would improve court operations and enhance due process protections for individuals facing highly complex immigration court proceedings that
often raise issues of life and death.6 Even though representation is often
the single greatest factor in determining whether an individual will obtain relief in removal proceedings,7 low-income immigrants and people in immigration detention face significant barriers to obtaining counsel. This bill calls for expanding alternatives to detention and authorizes funding for the appointment of counsel for children and vulnerable noncitizens. Provisions in this bill also provide for an expansion of DOJ’s Legal Orientation Program and greater access to legal information for immigrants who are not
detained. These are important steps in the right direction, but the bill falls short of ending civil immigration detention and establishing a much-needed universal representation program.8
Judicial diversity encourages fair decision-making, but DOJ’s Executive Office for Immigration Review (EOIR) has a long history of politicized
hiring,9 resulting in a supermajority of judges on the bench who have prosecutorial backgrounds. This bill calls for the hiring of additional immigration judges (IJs) and Board of Immigration Appeals (BIA) members who are experts in immigration law, and it encourages the hiring of IJs who have diverse experience, including people from the private sector. The bill also requires EOIR to conduct mandatory continuing legal and diversity training for IJs and BIA members. Additional steps must be taken to ensure critical oversight into the hiring process, promote diversity, and eliminate harassment in the immigration courts.10
Also included in this bill are provisions to protect vulnerable individuals. The bill eliminates the one-year filing deadline for asylum claims and increases access to employment authorization for people seeking asylum and for U and T visa applicants, ensuring that vulnerable populations seeking refuge in the U.S. will be able to work and support their families while their immigration cases are pending.
The bill calls for expanding alternatives to detention and authorizes funding for the appointment of counsel for children and vulnerable noncitizens.
X Provides for appointing counsel for children and vulnerable noncitizens. Authorizes funding for and requires DOJ to appoint or provide counsel
for children, vulnerable individuals, and other people where necessary. Requires DHS to provide copies of their immigration files to individuals who are in immigration court proceedings.
X Requires access to legal orientation programs and access to counsel. Requires legal orientation programs to be available for all noncitizens in immigration detention. DHS must provide access to counsel inside all immigration detention facilities and border facilities.
X Increases access to legal information. Expands the help desk program
to all immigration courts, providing non-detained individuals who have pending asylum claims access to information related to immigration status. Requires DHS to provide copies of their immigration files to people who are in immigration court proceedings.
X Expands alternatives to detention. Expands the family case management program and requires DHS to develop additional community-based programs. People enrolled in these programs will receive legal orientations.
X Increases immigration court hiring. Requires DOJ to increase the number of IJs on the bench, hire additional BIA staff attorneys, and provide sufficient support staff. In hiring the new IJs and BIA members, DOJ is instructed to select people from diverse backgrounds, including from the nonprofit sector and the private bar and people with academic experience.
X Expands training for IJs and members of the BIA. Requires the EOIR
to conduct mandatory training for IJs and members of the BIA, including continuing legal training and training on age, gender, and trauma sensitivity.
X Directs EOIR to modernize technology. Requires the EOIR director to modernize electronic systems, including by allowing electronic filing, to improve court proceedings.
X Eliminates barriers to asylum and protects vulnerable populations. Removes the one-year time limit for filing an asylum claim. Increases protections for U visa, T visa, and VAWA applicants by providing them with a rebuttable presumption of release from detention and prohibiting the removal of these applicants from the U.S. while an application is pending. Increases the number of U visas, which are available to some crime victims, from the current cap of 10,000 to 30,000 per year.
FEBRUARY 2021
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In hiring new IJs and BIA members, DOJ is instructed to select people from diverse backgrounds, including from the nonprofit sector and the private bar and people with academic experience.
X Increases access to employment authorization for people seeking U and T visas and protection under VAWA. People seeking U and T visas shall and must be granted employment authorization on the date their application is approved or a date to be determined by the DHS secretary within 180 days of submitting their petition, whichever is earlier. Employment authorization is issued for two years, with the possibility of renewal.
X Increases access to employment authorization for people seeking asylum. Provides that DHS shall grant employment authorization to bona fide and non-detained asylum-seekers within 180 days after they file their asylum application with DHS or DOJ.
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The improvements to the Immigration Courts are all helpful. But, as the NILC points out, they fall short of what’s really needed: An independent Article I Immigration Court. One thing the bill does address, lack of diversity and immigration/human rights expertise among EOIR judicial hires (over the past three Administrations) is a glaring problem and hinderance to achieving due process and fundamental fairness.
Thanks to my friend and NDPA superstar Laura Lynch, Senior Immigration Policy Attorney at the NILC for passing this along.
Before the inauguration, President Biden pledged a $1.9 trillion COVID-19 relief bill. Then, hours after he entered the Oval Office, he introduced an immigration bill, The U.S. Citizenship Act of 2021, which aims to put millions of undocumented immigrants on a pathway to citizenship. At first glance, these initiatives seem unrelated; in fact, they are deeply connected. Combining them is the best way to help us battle the COVID-19 pandemic and recover from the recession. Here’s why.
In the first wave of the COVID-19 pandemic, the United States and the world over learned a lesson about who was truly essential to the economy: the home health aides and nurses who care for the sick, the grocery and delivery workers who keep our stores and kitchens stocked, and the workers at our farms and food processing plants who keep our food supply chain from collapsing. These and so many other overlooked jobs — classified as “essential and critical” by the Department of Homeland Security — hold our society together, protect us, and make our economy work.
Large numbers of these essential workers are also undocumented immigrants. Over 78 percent of immigrants without legal status work in these fields, according to a report by UCLA’s Latino Policy and Politics Initiative. They’re not just risking their lives to keep American citizens safe and help rebuild our economy, but they do so without legal protections and under the constant fear of deportation. That’s inhumane. But it’s also dangerous for Americans. With hospitalizations of COVID-19 patients surpassing 52,000, Congress must follow the lead of countries like France and give these essential workers a fast track to the citizenship they deserve.
It’s no secret that immigrants are helping to keep us all afloat. Despite being just 13 percent of the population, immigrants make up 37 percent of all home health aides and almost one third of all physicians and psychiatrists. With a very real threat of meat and poultry shortages at the beginning of the pandemic, immigrants filled more than a third of the tough food processing jobs and nearly half of all farm jobs picking our fruits and vegetables. And as parents across the country are placed in the impossible situation of balancing full-time work and parenting during a pandemic, once again immigrants help shoulder the burden, making up more than 20 percent of all childcare workers in day care centers.
And yet, despite all of this, our federal government acted as though we didn’t need these workers. As the pandemic raged, millions of immigrants were explicitly left out of the CARES Act relief efforts, as were millions of their U.S. born children and spouses who were penalized for having an unauthorized immigrant in the family. Meanwhile, the Trump Administration sought to shut the border to immigrant workers and students, all but stopped processing citizenship applications and ended asylum for people fleeing horrific violence. It also fought unsuccessfully all the way to the Supreme Court for the right to end protections for Dreamers, tens of thousands of whom are essential health care workers.
So what would an effective federal response look like?
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Read the rest of Jeremy’s article at the link for his ideas on how to join immigration reform with economic expansion.
Thanks for speaking out Andrea!Andrea is a former Arlington Immigration Court intern and one of the “charter members” of the NDPA. As captured on this video, she was assaulted by ICE while trying to assist her child client in reuniting with his mother! A civil suit against the agent involved is pending.
1. Family and children detention protocols: The bill does not incorporate the Flores settlement governing the detention of immigrant minors. The Trump administration tried but failed to abrogate the settlement.
2. Border wall infrastructure: No surprise. The U.S./Mexico border wall, which President Trump championed, is not part of the bill’s enforcement plans. The Biden administration already had made it clear that construction of the wall was not a priority of his administration.
As I have previously mentioned, I expect a “stand alone” Article I Bill 🧑🏽⚖️ to be introduced in the House shortly.It could be combined with the Immigration Court improvements in the Biden Bill.
We need to keep the pressure on until Article I happens!
Donald Trump used anti-immigrant demagoguery to launch his presidential campaign, accusing the people who hoped to make their homes here of being “rapists” and “bad hombres” and calling — nonsensically — for all of them to be sent back to their home countries, where they would “go to the back of the line” for readmission to the United States. He used them as scapegoats whom the “Make America Great Again” crowd could blame for the nation’s ills. Republican senators who once believed in reality-based immigration reform, such as Marco Rubio (Fla.) and Lindsey O. Graham (S.C.), stopped resisting the party’s xenophobia and came to embrace it.
Democrats sought political advantage by being seen as anti-anti-immigration, seeking support by opposing GOP initiatives such as Trump’s border wall. Yet they were disappointed to see Trump’s share of the Hispanic vote actually grow from 2016 to 2020 — demonstrating, in my view, that theatrical demonstrations of solidarity are no substitute for coming up with policies that voters believe would actually improve their lives.
Are we really going to continue like this indefinitely? Are we going to consign 11 million people to an extralegal existence because our politicians find it advantageous to argue about their fate?
Biden’s proposal would allow farmworkers, migrants brought here as children and those who have “temporary protected status” because of threats in their homelands to apply for citizenship in three years. The rest of the undocumented would have to wait eight years to apply to be citizens. All would have to pass background checks; and the amnesty — let’s call it what it is — would cover only those in the country before Jan. 1 of this year to prevent a new surge of people trying to cross the border.
Would Biden settle for legislation that normalized the status of only some of the undocumented, but not all of them? He has already said he doesn’t want to but might. Would he accept whatever scraps of reform that could be achieved through the Senate’s reconciliation process, which requires only 51 votes instead of 60? If it came to that, he wouldn’t have a choice.
But the Biden administration has shown a refreshing insistence on negotiating with the opposition rather than with itself. In seeking covid-19 relief, for example, Biden is asking for $1.9 trillion rather than some less eye-popping amount. When he lays out his plans for improving the nation’s infrastructure and making the transition to green energy, he is expected to request even more. Polls show that voters want bipartisanship and compromise — but the first crucial step in that process is defining the range of possibilities.
Biden is asking not for a few minimal immigration fixes but for a comprehensive solution. This is a president who wants more than a return to the old ways: He’s shooting for a truly new normal.
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Read the rest of Eugene’s op-ed at the link.
Well said, Eugene! “Negotiating with itself” is a good description of the Obama Administration’s ineffective approach to immigration. And, an Article I Immigration Court must also be part of the “think big — act boldly” immigration policy that America needs! “Reality-based immigration policy” — administered and staffed by experts and professionals — is exactly the right approach!
The White House announced a sweeping immigration bill Thursday that would create an eight-year path to citizenship for millions of immigrants already in the country and provide a faster track for undocumented immigrants brought to the US as children.
The legislation faces an uphill climb in a narrowly divided Congress, where House Speaker Nancy Pelosi has just a five-vote margin and Senate Democrats do not have the 60 Democratic votes needed to pass the measure with just their party’s support.
Administration officials argued Wednesday evening that the legislation was an attempt by President Joe Biden to restart a conversation on overhauling the US immigration system and said he remained open to negotiating.
“He was in the Senate for 36 years, and he is the first to tell you the legislative process can look different on the other end than where it starts,” one administration official said in a call with reporters, adding that Biden would be “willing to work with Congress.”
The effort comes as there are multiple standalone bills in Congress aimed at revising smaller pieces of the country’s immigration system. Sens. Lindsey Graham, a Republican from South Carolina, and Majority Whip Dick Durbin, a Democrat from Illinois, for example, have reintroduced their DREAM Act, which would provide a path to citizenship for immigrants who came to the country illegally as children.
Administration officials said the best path forward and plans either to pass one bill or break it into multiple pieces would be up to Congress.
“There’s things that I would deal by itself, but not at the expense of saying, ‘I’m never going to do the other.’ There is a reasonable path to citizenship,” Biden said at a CNN town hall in Milwaukee on Tuesday.
“The President is committed to working with Congress to engage in conversations about the best way forward,” one administration official said.
Officials did not say if they believed that the reconciliation process, a special budget tool that applies only to a specific subset of legislation and allows the Senate to pass bills with a simple majority, would be applicable for an immigration bill. “Too early to speculate about it right now,” one official said.
The Senate is working on passing the President’s coronavirus relief legislation through reconciliation. The expectation is that the administration could also use the process to pass an infrastructure bill.
Biden’s immigration bill will be introduced by Democrats Bob Menendez of New Jersey in the Senate and Linda Sanchez of California in the House.
Read the rest of Priscilla’s & Lauren’s analysis at the link.
The White House “Fact Sheet” on the legislation is also available at the link at the end of the above excerpt.
Here’s what that summary says about the U.S. Immigration Courts:
Improve the immigration courts and protect vulnerable individuals. The bill expands family case management programs, reduces immigration court backlogs, expands training for immigration judges, and improves technology for immigration courts. The bill also restores fairness and balance to our immigration system by providing judges and adjudicators with discretion to review cases and grant relief to deserving individuals. Funding is authorized for legal orientation programs and counsel for children, vulnerable individuals, and others when necessary to ensure the fair and efficient resolution of their claims. The bill also provides funding for school districts educating unaccompanied children, while clarifying sponsor responsibilities for such children.
Support asylum seekers and other vulnerable populations. The bill eliminates the one-year deadline for filing asylum claims and provides funding to reduce asylum application backlogs. It also increases protections for U visa, T visa, and VAWA applicants, including by raising the cap on U visas from 10,000 to 30,000. The bill also expands protections for foreign nationals assisting U.S. troops.
Unfortunately, the bill does not contain the most important legislative solution: An Article I Immigration Court. Nevertheless, a separate Article I bill will be introduced in the House soon. Since the “USCA of 2021” is largely a “talking draft” anyway, there is no reason why Article I couldn’t be combined with the other changes in the bill.
While attention to improving the Immigration Courts is welcome and long overdue, I think this proposal actually misses the major point: What’s needed right now isn’t necessarily more Immigration Judges; it’s better Immigration Judges, starting, but not ending, with a replacement of the current dysfunctional Board of Immigration Appeals. Only with the improvements in the administrative case law, docket management, and “best practices” that better EOIR judges would bring could we really tell whether more judges are actually necessary.
Right now, throwing more bodies into the ungodly mess at EOIR would only create confusion and aggravate existing problems. And, while the proposal correctly spotlights woeful inadequacies in IJ training and professional development, those alone will not be enough to restore due process to a system wracked by decades of bad judicial selection practices that basically have excluded the “best and brightest” immigration experts from the private sector, those with actual experience representing individuals in Immigration Court, from the “21st Century Immigration Judiciary.”
The good news: Judge Garland won’t need legislation to get this system back on track by:
Immediately replacing the current BIA with judges who are renowned experts in immigration, human rights, and due process, with special attention to those with actual experience representing asylum seekers;
Vacating all of the improper Sessions and Barr precedents, and letting the “new BIA” straighten out the law and implement best practices, including holding IJs who are members of the “Asylum Deniers Club” accountable;
Implementing efficient merit-based judicial hiring practices which would involve public input and actively recruit from communities now underrepresented in the Immigration Judiciary;
Eventually re-competing all Immigration Judge jobs under these merit criteria, again with public input on the performance of current judges part of the process;
Replacing all of EOIR’s incompetent upper “management” with competent professional judicial administrators;
Examining the justification and “bang for the buck” in EOIR’s bloated, yet highly ineffective, headquarters operation in Falls Church with an eye toward maximizing support for the local Immigration Courts and minimizing counterproductive and politicized micromanagement and interference with the operation of local courts;
Making peace and working with the National Association of Immigration Judges (“NAIJ”), which is much more “on top of” the real problems in the Immigration Courts than often clueless EOIR “management” in Falls Church;
Instituting e-filing and other long overdue 21st Century judicial administration practices in the Immigration Courts;
Working cooperatively with the private bar, NGOs, ICE, and local IJs to maximize representation and improve docketing and scheduling practices.
Judge Garland has the authority to make all the foregoing changes, which will immediately improve the delivery of justice at the critical “retail level” of our justice system and make the achievement of racial justice and equal justice for all more than just “pipe dreams.” Immigrant justice is essential for racial justice!
The only question is whether Judge Garland will actually do what’s necessary. If not, he can expect some “aggressive pushback” from those of us who are fed up with the “EOIR Clown Show” 🤡🦹🏿♂️☠️ and its daily mockery of American justice!
By Geoff Bennett, Julia Ainsley and Jacob Soboroff
The Biden administration and Hill Democrats are expected later this week to release an immigration reform bill, multiple sources familiar with the planning tell NBC News.
The legislative text of the “U.S. Citizenship Act of 2021” will reflect the immigration priorities that President Joe Biden unveiled on his first day in office. His proposal includes an earned pathway to citizenship for 11 million undocumented immigrants, expands the refugee resettlement program and deploys more technology to the Southern border. There are additional protections that are being considered in the legislation, such as asylum processing in home countries for minors, expanded benefits for DREAMers and ending the public charge rule.
While previous attempts at massive immigration reform have failed under both Republican and Democratic administrations, the Biden White House has signaled support for breaking the legislation into pieces.
As a potential secondary path, lawmakers would work to pass bills legalizing farmworkers and Dreamers right away, and then move toward a more expansive overhaul. The main objective, officials and advocates say, is progress.
. . . .
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Sounds like modest expectations. But, any meaningful immigration legislation would be a major achievement that has eluded the last two Administrations.
Unfortunately, based on the the GOP’s impeachment performance, it’s hard to see 60 votes for any substantive legislation in the Senate.
