"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.
http://www.noblelawfirm.com/ice-violates-due-process-roberto-beristain
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Click the link to read the complete press release. Sometimes Article III Federal Courts are willing to intervene in alleged unlawful removal cases, sometimes not. I’ve been on both sides and in the middle on this issue during my career.
Thanks to Dan Kowalski over at LexisNexis Immigration Community for passing this along.
PWS
04-06-17
ADR = “Aimless Docket Reshuffling,” a phenomenon that occurs when political officials at the DOJ direct EOIR to “reprioritize” existing U.S. Immigration Court dockets to meet politically-driven enforcement goals. Results in U.S. Immigration Judges being reassigned from regularly scheduled largely “ready for trial” pending cases to “priority cases” that often are NQRFPT. Therefore almost nothing gets completed, but the court staff is overburdened and the private bar and individual respondents as well as the DHS Assistant Chief Counsel see already prepared cases reassigned to new judges who don’t have time to hear them or “orbited” to spots at the end of the docket several years from now. Results in growing backlogs even with more judges employed in the system.
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As reported in LexisNexis Immigration https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2017/03/27/eoir-posts-new-hearing-location-details.aspx?Redirected=true EOIR has announced several rounds of details of U.S. Immigration Judges to “detained locations” as part of its “implementation of President Trump’s January 25th Executive Orders.” Julia Edwards Ainsley previously reported on this development in Reuters http://wp.me/p8eeJm-vF.
However, according to several sources, once at the “detail court” these judges often have precious little to do.
To paraphrase some familiar with the system, “The only ‘surge’ happening here is a surge of judges. There’s no surge of cases.” But, you can bet that there was a “surge in frustration” from those whose previously scheduled cases were rescheduled to accommodate these unneeded details.
Just another “keystone cops” episode at DOJ? Tempting analysis, but not so funny when you consider that human lives and futures are being affected. Also, transferring busy judges from already jam-packed dockets to do little or nothing at the border to keep the “political bosses” satisfied wastes the taxpayers’ money and undermines the credibility of the Immigration Court. That’s bad for everyone.
Most Immigration Judges I know are 1) busy all the time (unlike many other judges, Immigration Judges are expected to schedule cases eight hours/day, every work day of the week except for four hours/week of “administrative time” for case preparation, decision writing, and continuing education); 2) fanatic about wanting to complete the cases on their daily dockets.
Consequently, I doubt that any sitting Immigration Judge would have thought it was a good idea to cancel or reassign their regular dockets to do a minute number of cases as a detailed judge.
Moreover, because the Immigration Court is not “automated,” detailed Immigration Judges who have extra time have no access to pending motions that are piling up in their chambers during details. So, unlike the “home court” where a judge often can find “chambers work” to do during unanticipated “down time,” on detail “down time” is just that — wasted time.
Finally, there is the obvious question. What is a supposedly impartial, due process oriented court system doing mindlessly carrying out the President’s Executive Order on immigration enforcement to the derogation of its own already-pending cases? We need an independent Article I United States Immigration Court!
PWS
03/28/17
From LexisNexis:
“ACLU Files Class Action Lawsuit Against DHS Challenging Months–Long Delays in Bringing Detained Immigrants, Asylum Seekers Before Judges
Thousands Are Incarcerated For Months In Remote Facilities Waiting To See A Judge
“The ACLU of San Diego & Imperial Counties (“San Diego ACLU”), Fish & Richardson P.C., and the Law Offices of Leonard B. Simon P.C. filed a class action lawsuit in federal court yesterday against the U.S. Department of Homeland Security and the Department of Justice. The suit seeks to end the excessive delays depriving civil immigration detainees of due process and prompt judicial review.
Every day, immigration agencies incarcerate tens of thousands of longtime U.S. residents, victims of persecution, and others in remote detention centers, ripped from their families and without access to legal support. None are serving time for a crime – and no judge has determined that there is probable cause to detain them – yet they are held in these deplorable detention facilities while they pursue legal avenues to remain in the U.S.
In San Diego and Imperial Counties, these detainees can languish for months before they are brought before a judge just to begin their case and learn for the first time why they are being incarcerated, what they can do to help present their case, or whether they can take steps to seek their release and get back to their loved ones.”
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The system is already badly broken. And the Trump Administration’s poorly-conceived plans to enforce and detain to the max are just going to make it worse. Likely that cases such as this, combined with arrogance and poor judgement by the Administration, eventually are going to result in Federal Court supervision of virtually every aspect of immigration hearing process. The case is Cancino Castellar v. Kelly. Keep an eye on it!
PWS
For the new Executive Order click here:
For other materials from DHS relating to the travel ban click here:
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PWS
03/06/17
Andrew Strickler at Law 360 suggests that what was once Washington’s “best legal job” might now be a “career ender” rather than a “career enhancer.” Still, probably a far cry from being the Commissioner of the “Legacy Immigration and Naturalization Service,” sometimes described as “the worst Presidential appointment in Government.”
Those of you who subscribe to Law 360 (I don’t, so all I read was the “teaser”) can read the full article here:
https://www.law360.com/articles/891376?utm_source=rss&utm_medium=rss&utm_campaign=articles_search
PWS
02/16/17
What Are The Odds Of The U.S. Immigration Courts’ Survival?
by Paul Wickham Schmidt
Despite the campaign promises to make things great for the American working person, the Trump Administration so far has benefitted comedians, lawyers, reporters, and not many others. But there is another group out there reaping the benefits — oddsmakers. For example, Trump himself is 11-10 on finishing his term, and Press Secretary Sean “Spicey” Spicer is 4-7 to still be in office come New Year’s Day 2018.
So, what are the odds that the U.S. Immigration Courts will survive the next four years. Not very good, I’m afraid.
Already pushed to the brink of disaster, the Immigration Courts are likely to be totally overwhelmed by the the Trump Administration’s mindless “enforcement to the max” program which will potentially unleash a tidal waive of ill-advised new enforcement actions, detained hearings, bond hearings, credible fear reviews, and demands to move Immigration Judges to newly established detention centers along the Southern Border where due process is likely to take a back seat to expediency.
While Trump’s Executive Order promised at least another 15,000 DHS immigration enforcement officers, there was no such commitment to provide comparable staffing increases to the U.S. Immigration Courts. Indeed, we don’t even know at this point whether the Immigration Courts will be exempted from the hiring freeze.
At the same time, DHS Assistant Chief Counsel are likely to be stripped of their authority to offer prosecutorial discretion (“PD”), stipulate to grants of relief in well-documented cases, close cases for USCIS processing, and waive appeals.
Moreover, according to recent articles from the Wall Street Journal posted over on LexisNexis, individual respondents are likely to reciprocate by demanding their rights to full hearings, declining offers of “voluntary departure” without hearing, and appealing, rather than waiving appeal of, most orders of removal. Additionally, the Mexican government could start “slow walking” requests for documentation necessary to effect orders of removal.
Waiting in the wings, as I have mentioned in previous posts, are efforts to eliminate the so-called “Chevron doctrine” giving deference to certain BIA decisions, and constitutional challenges that could bring down the entire Federal Administrative Judiciary “house of cards.”
The sensible way of heading off disaster would be to establish an independent Article I Court outside the Executive Branch and then staff it to do its job. Sadly, however, sensibility so far has played little role in the Trump Administration. Solving the problem (or not) is likely to fall to the Article III Courts.
So, right now, I’m giving the U.S. Immigration Courts about 2-3 odds of making it through 2020. That’s a little better chance than “Spicey,” but worse than Trump himself.
To read the WSJ articles on the “clogging the courts” strategy, take this link over to LexisNexis:
PWS
02/14/17
https://us.vocuspr.com/Publish/515903/vcsPRAsset_515903_132952_3a1e221c-3f7f-4046-8513-36015233ac7e_0.jpg
American Bar Association
Communications and Media Relations Division
www.americanbar.org/news
Release: Immediate
Contact: Karen DeWitt
Phone: 202-662-1502
Email: Karen.DeWitt@americanbar.org
Online: http://www.americanbar.org/news/abanews/aba-news-archives/2017/02/aba_urges_president.html
ABA urges President Trump to withdraw order restricting travel from seven Muslim-majority countries
MIAMI, Feb. 6, 2017 — The American Bar Association urged President Donald Trump today to withdraw the executive order “Protecting the Nation from Foreign Terrorist Entry into the United States,” which restricts immigration from seven Muslim-majority countries, suspends all refugee admission for 120 days and indefinitely suspends the entry of Syrian refugees.
By voice vote, the ABA House of Delegates, the association’s policy-making body, adopted resolution 10C calling on the executive branch to ensure full, prompt, and uniform compliance with court orders addressing the executive order.
The House––made up of 589 members representing state and local bar associations, ABA entities and ABA-affiliated organizations––also urged the administration to take care that all executive orders regarding border security, immigration enforcement and terrorism:
respect the bounds of the U.S. Constitution and due process rights;
not use religion or nationality as a basis for barring an otherwise eligible individual from admission to the United States;
adhere to the U.S.’s international law obligations relating to the status of refugees and to the principle of non-refoulement; and
facilitate a transparent, accessible, fair and efficient system of administering the immigration laws and policies of the United States and ensure protection for refugees, asylum seekers, torture victims and others deserving of humanitarian refuge;
In Resolution 10B, the House also reaffirmed the ABA’s support of legal protection for refugees, asylum seekers, torture victims, and others deserving of humanitarian refuge. It urged Congress to adopt additional legislation to appropriate funds for refugee applications and processing, and mandate that refugees receive an appropriate individualized assessment in a timely fashion that excludes national origin and religion as the basis for making such determination.
The association’s policy-making body discussion took place at the James L. Knight Center of the Hyatt Regency Miami. The session concluded the 2017 ABA Midyear Meeting, which began Feb. 1.
With more than 400,000 members, the American Bar Association is one of the largest voluntary professional membership organizations in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law. View our privacy statement on line. Follow the latest ABA news at www.americanbar.org/news and on Twitter @ABANews.
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American Bar Association, 321 N Clark St, Chicago, IL 60654-7598 United States
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Thanks to my good friend Dan Kowalski over at Lexis Nexis for forwarding this to me.
PWS
02/07/17
The answer is that “almost nobody knew” outside of the insular “tower” world of EOIR Headquarters in Falls Church, VA. It took some super sleuthing by ace Legal Reporter Allissa Wickham over at Law 360 to smoke this one out.
With a little help from her friends, the fabulous “AWick” came upon Judge Kelly’s name in the Roster of Board Members in The Board of Immigration Appeals (“BIA”) Online Practice Manual. (As the BIA Practice Manual was instituted during my tenure as BIA Chair, I’m gratified that someone out there is actually reading it.)
Armed with that tidbit of information, AWick was able to get confirmation of Judge Kelly’s appointment from EOIR spokesperson Kathryn Mattingly on Friday evening. Interestingly, Judge Kelly’s biography no longer appears in the online listing for the Office of Chief Immigration Judge, where he had served for a number of years as a Deputy Chief Immigration Judge. Nor has his name or biography appeared under the online listing for the BIA. In other words, Judge Kelly is somewhat “lost in EOIR space” — close to being a bureaucratic “non-person.”
For those who don’t know, the BIA is the highest administrative tribunal in the filed of immigration. With an authorized membership of 16 Appellate Immigration Judges (Judge Kelly became #15, leaving one vacancy), the BIA received more than 29,000 cases and completed more than 34,000 cases in FY 2015 and had nearly 17,000 pending at the end of that year. By comparison, for the same period, the U.S. Supreme Court received 6,475 cases and took only 81 for oral argument.
The Board also issues nationwide precedents that are binding on the U.S. Immigration Courts and the DHS. Although a part of the Executive, not the Judicial Branch, the BIA effectively occupies a position in our justice system just below that of a U.S. Court of Appeals.
Moreover, as I have pointed out in other blogs, because of the idiosyncrasies of the Supreme Court’s so called “Chevron doctrine,” the Courts of Appeals actually are required to “defer” to the BIA’s interpretation of ambiguous questions of law. Indeed, under the Supreme Court’s remarkable “Brand X doctrine” (“Chevron on steroids”) under some circumstances the BIA can reject the legal reasoning of a Court of Appeals and apply its own interpretation instead.
In other words, notwithstanding their rather cloistered existence, and attempt to remain “below the radar screen,” BIA Appellate Immigration Judges are some of the most powerful judges in the entire Federal Justice system. That makes the lack of publicity about Judge Kelly’s elevation to the appellate bench even more curious.
For those who don’t know him, Judge Kelly started moving “up the ladder” at EOIR when I appointed him to a newly created staff supervisory position at the BIA in the mid-1990s. He was selected because of his reputation for fairness, scholarship, strong writing, collegiality, and ability to teach and inspire others. In other staff positions at the BIA, Judge Kelly became a master of understanding, explaining, and recommending improvements to the case management system. I believe it was those skills and understanding of the mechanics of the Immigration Court System that made him rise to a Deputy Chief Judge position within the Office of Chief Immigration Judge in Falls Church.
Judge Kelly was at the BIA in the late 1990s when the EOIR Executive Group developed the “EOIR Vision” of “through teamwork and innovation, being the world’s best administrative tribunals, guaranteeing fairness and due process for all.” Although over the years, Department of Justice and EOIR management have essentially downplayed and moved away from any public expression or reinforcement of this noble vision, I’m confident that Judge Kelly remains committed to the due process mission we all embarked upon together several decades ago.
From his prior vantage point as a Deputy Chief Immigration Judge, Judge Kelly saw first-hand the docket and due process disaster caused by the DOJ’s politicized meddling in the daily case management practices of the U.S. Immigration Courts over the past several years. He also witnessed the general failure of the BIA to step up and stand up for the due process rights of individuals being hustled through the system with neither lawyers nor any realistic chance of effectively presenting their claims for potential life saving protection.
I hope that as the “new Appellate Immigration Judge on the block,” Judge Kelly will bring a forceful voice for due process and fairness to his colleagues’ deliberations. By doing so, perhaps he can persuade them to face and address some of the important due process and fairness issues in the Immigration Courts that they have been avoiding.
Judge Kelly’s professional bio (taken from his appointment as Deputy Chief Judge, in the absence of a formal announcement from DOJ/EOIR) is reprinted here:
“FALLS CHURCH, Va. – The Executive Office for Immigration Review (EOIR) today announced the appointment of a second deputy chief immigration judge (DCIJ). Effective March 10, 2013, Assistant Chief Immigration Judge (ACIJ) Edward F. Kelly will become a DCIJ. Judge Kelly will assume direct supervision of the program components in the Office of the Chief Immigration Judge (OCIJ), including the legal unit, the language service unit, the organizational results unit, the chief clerk, and the executive officer.
“Judge Kelly’s appointment as deputy chief immigration judge is in recognition of his tremendous contributions to OCIJ’s efficiencies and services,” said Chief Immigration Judge Brian M. O’Leary. “With his expanded role, I am confident OCIJ will continue to improve our operations and inspire our staff.”
Biographical information follows:
Attorney General Holder appointed Judge Kelly as an ACIJ in March 2011. He received a bachelor of arts degree in 1982 and a juris doctorate in 1987, both from the University of Notre Dame. From November 2009 to March 2011, Judge Kelly served as senior counsel and chief of staff for OCIJ. From 2007 to 2009, he was counsel for operations for OCIJ at EOIR. From 1998 to 2007, Judge Kelly was a senior legal advisor for the Board of Immigration Appeals (BIA), EOIR. From 1995 to 1998, he served as a supervisory attorney and team leader for the BIA. From 1989 to 1993 and again from 1994 to 1995, Judge Kelly was an attorney advisor for the BIA. From 1987 to 1989, he served as an assistant counsel, Subcommittee on Immigration, Refugees, and International Law, U.S. House of Representatives, Washington, D.C. From 1982 to 1984, he served in the U.S. Peace Corps in Gabon, Africa. Judge Kelly is a member of the Virginia State Bar.”
Perhaps, eventually, EOIR will announce Judge Kelly’s appointment. Who knows?
Additionally, those of you with full Law 360 access (which I don’t have) can read AWick’s full article at the Lexis link below.
PWS
02/04/17
Dan Kowalski at Lexis Nexis summarizes the most hard-hitting part of Professor Martin’s analysis of the Executive Order on Refugees and Visas:
“30 Jan. 2017 – Prof. David A. Martin (please read his full bio) has annotated President Trump’s 27 Jan. 2017 Executive Order. Among other things, Prof. Martin states, “The order is a priceless recruiting tool for ISIS and similar movements, because it so easily fits their narrative that the United States is the enemy of all Muslims. And it will discourage tips and information from American Muslim communities — information that in the past has proved highly valuable to the thwarting of terrorist acts. Accordingly, the Bush and Obama administrations both strived to avoid all measures that could be painted as broadly anti-Muslim. Much of that vital engagement with Muslim communities has been gravely undone by this order.””
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Go on over to Lexis Nexis at the link for further links to the complete analysis in Vox, Professor Martin’s spectacular biography, and a great picture of Professor Martin.
PWS
01/30/17