GOOD LITIGATING IN A BAD SYSTEM
BY
PAUL WICKHAM SCHMIDT
UNITED STATES IMMIGRATION JUDGE (RETIRED)
LOUISIANA STATE BAR IMMIGRATON CONFERENCE
NEW ORLEANS, LA
April 26, 2019
I.
Good afternoon. Thanks so much for inviting me and coming out to listen. Most of all, thank you for what you are doing to save our legal system and preserve our democracy. For, nothing less is at issue here.
Jeremy talked this morning about the supreme satisfaction of seeing smug, uncooperative, unresponsive, scofflaw bureaucrats hauled into court and forced to follow the law. There isn’t much a bureaucrat, particularly one working in this particular Administration, fears more than the law.
In my life, the comparable feeling of satisfaction was when a Court of Appeals reversed my wrong-headed colleagues at the BIA on the basis of one of my frequent dissents or having a Court of Appeals reverse the BIA for incorrectly reversing my decision as an Immigration Judge granting relief.
Once upon a time, there was a court system with a vision: Through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all. Two decades later, that vision has become a nightmare.
Would a system with even the faintest respect for Due Process, the rule of law, and human life open so-called “courts” in places where no legal services are available, using a variety of largely untrained “judges,” themselves operating on moronic and unethical “production quotas,” many appearing by poorly functioning and inadequate televideo? This system is as disgraceful as it is dysfunctional.
Today, the U.S. Immigration Court betrays due process, mocks competent administration, and slaps a false veneer of “justice” on a “deportation railroad” designed to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting.
It cruelly betrays everything our country claims to stand for and baldly perverts our international obligations to protect refugees. In plain terms, the Immigration Court has become an intentionally “hostile environment” for migrants and their attorneys.
This hostility particularly targets the most vulnerable among us – asylum applicants, mostly families, women, and children fleeing targeted violence and systematic femicidal actions in failed states; places where gangs, cartels, and corrupt officials have replaced any semblance of honest competent government willing and able to make reasonable efforts to protect its citizenry from persecution and torture. All of these states have long, largely unhappy histories with the United States. In my view and that of many others, their current sad condition is in no small measure intertwined with our failed policies over the years – failed policies that we now are mindlessly “doubling down” upon.
My good friend and colleague Dr. Triche gave you the “scholarly side” of immigration appeals. Now, I’m going to take you over to the “seamy underside of reality,” where the war for due process and the survival of democracy is being fought out every day. Because we can’t really view the travesty taking place at the BIA as an isolated incident. It’s part of an overall attack on Due Process, fundamental fairness, human decency and particularly asylum seekers, women, and children in today’s “weaponized” Immigration Courts.
I’m going to tell you twelve things that you and your colleagues need to do to win the war against the forces of darkness and anti-Constitutional bias who have seized control of our justice system and aim to destroy it.
I, of course, hold harmless Dr. Triche, the Louisiana State Bar, Woody’s law firm, all of you, and anyone else of any importance whatsoever for the views I express this afternoon. They are mine, and mine alone, for which I take full responsibility. No party line, no sugar coating, no bureaucratic BS – just the truth, the whole truth, and nothing but the truth, as I see it based on more than four- and one-half decades in the fray at all levels. In the words of country music superstar Toby Keith, “It’s me baby, with your wake-up call!
II.
First, get everyone represented. That’s why it’s so important that you are all here today. Next time, I hope this meeting will be in the Mercedes-Benz Superdome!
Today’s “deportation railroad” operates on the assumption that it will be able to ramp up “numbers,” boost “productivity,” and promote bad law and worst practices by shooting unrepresented individuals “like fish in a barrel.” We know that representation increases success – sometimes by as much as 14 times.
Second, remember that there still are “pockets of due process and fundamental fairness” out there – pockets of resistance, if you will. These are Immigration Judges and sometimes ICE Assistant Chief Counsel who are courageous and honest enough to insist on a properly fair and generous interpretation of asylum law, procedural due process, reasoned decisions, and impartial judging. This is in the overall context of a DOJ that encourages and fosters overt anti-asylum bias, prejudgment, unprofessional treatment of lawyers, bullying of respondents, and predetermined results as part of a concerted effort to both discourage representation and “deter” bona fide asylum seekers from applying.
It’s critically important that you provide these “good guy” judges and counsel with the detailed, plausible, and consistent testimony, strong corroborating records, and cogent legal arguments to allow them to do the right thing while being “covered” in the case of likely attacks by “higher ups” for following the law, treating applicants and their representatives with dignity, and often granting asylum.
Third, if you are relying on “particular social groups” (“PSGs”) state them clearly on the record at the outset to satisfy BIA requirements. The BIA will not allow you to develop new social groups on appeal — even where they might be obvious from the record below.
Fourth, insure that PSGs meet the BIA’s three criteria: 1) immutable or fundamental to identity; 2) particularized; and 3) socially visible. Where applicable, don’t shy away from inclusive groups that clearly meet the BIA’s criteria like “women in Guatemala” or “gay men in Honduras.”
For too long, advocates have been “going along” with a “gradualist approach.” That favored limited, highly particularized, social groups designed to ease and appease the Government’s often bogus “floodgates fears” and thereby to win government cooperation in a gradual, positive, and progressive development of the asylum law consistent with Matter of Acosta, the BIA’s seminal precedent on PSGs.
Jeff Sessions clearly showed in Matter of A-B- why cooperation with the Government in a “captive” court system, without ingrained values or a strong basis of intellectual honesty, is too risky. It’s time to vindicate the full coverage of gender-based persecution under the refugee definition.
Fifth, argue politics where applicable. The BIA and some appellate courts have willfully misconstrued the reality of conditions in the Northern Triangle. Gangs in the Northern Triangle aren’t a bunch of neighborhood delinquents hanging out on the local street corner pestering kids and stealing lunch pails. No, they are powerful armed forces that have infiltrated and compromised governments, in many areas operating as “de facto governments.”
For Pete’s sake, in El Salvador gangs are reportedly the largest single employer. They have actually negotiated now-failed “peace accords” with the government. Of course, in those situations, quite contrary to disingenuous statements in BIA precedents, opposition and resistance to gangs is considered to be a “political act” that will be harshly punished.
Don’t rely just on mealy-mouthed State Department Country Reports that have been compromised by this Administration’s political agenda. Attack the reliability of State Department Reports with real experts and more reliable resources. Insist that reality be part of the record of proceedings no matter how much individual Immigration Judges or the BIA might want to ignore it.
Sixth, document the systematic truncations of due process in Immigration Court. These days, denial of merits hearings; arbitrary limits on testimony, evidence, and arguments to meet inappropriate production quotas; limitations on client access; capricious denials of continuances; frequent disparate treatment when EOIR and DHS shuffle and reprioritize dockets for no good reason; lack of notice; use of idiotic form decisions and woefully inadequate, analysis-free oral decisions as a substitute for reasoned analysis; and increased use of “summary affirmances” rubber stamping clearly defective Immigration Judge decisions are commonplace. It’s “haste makes waste to the Nth degree” imposed by the DOJ politicos. Expose these travesties and abuses! Make the record for review by “real” Article III Courts.
Seventh, limit to its facts Session’s outrageous attempt to turn back asylum law decades in Matter of A-B-. At the end of 30 pages of disingenuous “babble” and erroneous legal analysis, Sessions actually resolves nothing more than to vacate Matter of A-R-C-G-. It’s almost all dicta; vicious and misogynistic dicta, but dicta nevertheless.
Read Judge Emmet Sullivan’s outstanding opinion in Grace v. Whitaker cataloguing Sessions’s many errors and misrepresentations. The result in the BIA’s A-R-C-G- was clearly correct on the facts presented – so much so that it was uncontested by either party! Yes, some judges follow the erroneous dictum even deny hearings. Object, make your record, appeal, and hold these wrong-headed “jurists” accountable.
It’s frustrating to have to establish A-R-C-G-‘s correctness again and again for no good reason, but it’s what we have to do. It also won’t hurt to point out to the Article III’s how Sessions’s unjustified and biased actions have actually made the hearing system more unnecessarily complicated and inhibited fair, consistent, and efficient processing of asylum grants.
Eighth, apply for bond notwithstanding Barr’s unconstitutional attempt in Matter of M-S- to eliminate bond for those who have passed the credible fear process. Take the Fifth Amendment constitutional issue to the U.S. District Courts on habeas every time. Let them see firsthand what passes for “due process” and “justice” in today’s Immigration Courts.
The Ninth Circuit and several U.S. District Courts have already indicated that Government’s implementation of indefinite detention can’t pass constitutional muster under the Fifth Amendment. Keep the defeats coming for the DOJ and maintain the focus of the Article IIIs on how the DOJ’s arrogant and wasteful maladministration of the U.S. Immigration Courts is screwing up the entire U.S. justice system.
Ninth, if you lose below, take your appeals to the BIA and the Circuit Courts of Appeals. There are three good reasons for appealing: 1) in most cases it gives your client an automatic stay of removal pending appeal to the BIA; 2) appealing to the BIA ultimately gives you access to the “real” Article III Courts that still operate more or less independently from the President and his Attorney General; and 3) who knows, even in the “crapshoot world” of today’s BIA, you might win.
After the “Ashcroft Purge of ’03,’’ which incidentally claimed me as one of its casualties, the BIA became, in the words of my friend, gentleman, and scholar Peter Levinson, “a facade of quasi-judicial independence.” But, amazingly, it has gotten even worse since then. The “facade” has now become a “farce” – “judicial dark comedy” if you will.
And, as I speak, incredibly, Barr is working hard to change the regulations to further “dumb down” the BIA and extinguish any last remaining semblance of a fair and deliberative quasi-judicial process. If he gets his way, which is likely, the BIA will be “packed with more restrictionist judges,” decentralized so it ceases to function as even a ghost of a single deliberative body, and the system will be “gamed” so that any two “hard line” Board “judges,” acting as a “fake panel” will be able to designate anti-asylum, anti-immigrant, and pro-DHS “precedents” without even consulting their colleagues.
Even more outrageously, Barr and his “do-bees” over at the Office of Immigration Litigation (“OIL”) intend to present this disingenuous mockery as the work of an “expert tribunal” deserving so-called “Chevron deference.” Your job is to expose this fraud to the Article IIIs in all of its ugliness and “malicious incompetence.”
Yes, I know, as we heard earlier, many “real” Federal Judges don’t like immigration cases. “Tough noogies” — that’s their job!
I always tell my law students about the advantages of helping judges and opposing counsel operate within their “comfort zones” so that they can “get to yes” for your client. But, this assumes a system operating professionally and in basic good faith. In the end, it’s not about fulfilling the judge’s or opposing counsel’s career fantasies or self-images. It’s about getting Due Process and justice for your client under law.
And, if Article III judges don’t start living up to their oaths of office, enforcing fair and impartial asylum adjudication, and upholding Due Process and Equal Protection under our Constitution they will soon have nothing but immigration cases on their dockets. They will, in effect, become full time Immigration Judges whether they like it or not. Your job is not to let them off the hook.
Tenth, challenge the use of Attorney General precedents such as Matter of A-B- or Matter of M-S- on ethical grounds. The U.S. Court of Appeals for the D.C. Circuit, in a recent decision written by Judge Tatel invalidating the rulings of a military judge on ethical grounds said: “This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality.”
Like military judges, Immigration Judges and BIA Judges sit on life or death matters. The same is true of the Attorney General when he or she chooses to intervene in an individual case purporting to act in a quasi-judicial capacity.
Yet, Attorney General Barr has very clearly lined himself up with the interests of the President and his partisan policies, as shown by his recent actions in connection with the Mueller report. And, previous Attorney General Jeff Sessions was a constant unapologetic cheerleader for DHS enforcement who publicly touted a White Nationalist restrictionist immigration agenda. In Sessions’s case, that included references to “dirty attorneys” representing asylum seekers, use of lies and demonstrably false narratives attempting to connect migrants with crimes, and urging Immigration Judges adjudicating asylum cases not to be moved by the compelling humanitarian facts of such cases.
Clearly, Barr and Sessions acted unethically and improperly in engaging in quasi-judicial decision making where they were so closely identified in public with the government party to the litigation. My gosh, in what “justice system” is the “chief prosecutor” allowed to reach in and change results he doesn’t like to favor the prosecution? It’s like something out of Franz Kafka or the Stalinist justice system.
Their unethical participation should be a basis for invalidating their precedents. In addition, individuals harmed by that unethical behavior should be entitled to new proceedings before fair and unbiased quasi-judicial officials — in other words, they deserve a decision from a real judge, not a biased DOJ immigration enforcement politico.
Eleventh, make a clear record of how due process is being intentionally undermined, bias institutionalized, and the rule of law mocked in today’s Immigration Courts. This record can be used before the Article III Courts, Congress, and future Presidents to insure that the system is changed, that an independent Article I U.S. Immigration Court free of Executive overreach and political control is created, and that guaranteeing due process and fundamental fairness to all is restored as that court’s one and only mission.
Additionally, we are making an historical record of how those in charge and many of their underlings are intentionally abusing our constitutional system of justice or looking the other way and thus enabling such abuses. And, while many Article III judges have stood tall for the rule of law against such abuses, others have enabled those seeking to destroy equal justice in America. They must be confronted with their derelictions of duty. Their intransigence in the face of dire emergency and unrelenting human tragedy and injustice in our immigration system must be recorded for future generations. They must be held accountable.
Twelfth, and finally, we must fight what some have referred to as the “Dred Scottification” of foreign nationals in our legal system. The absolute mess at the BIA and in the Immigration Courts is a result of a policy of “malicious incompetence” along with a concerted effort to make foreign nationals “non-persons” under the Fifth Amendment.
And, while foreign nationals might be the most visible, they are by no means the only targets of this effort to “de-personize” and effectively “de-humanize” minority groups under the law and in our society. LGBTQ individuals, minority voters, immigrants, Hispanic Americans, African Americans, women, the poor, lawyers, journalists, Muslims, liberals, civil servants, and Democrats are also on the “due process hit list.”
III.
In conclusion, the failure of Due Process at the BIA is part of a larger assault on Due Process in our justice system. I have told you that to thwart it and to restore our precious Constitutional protections we must: 1) get everyone represented; 2) nourish the “pockets of due process;” 3) clearly define social groups; 4) use the BIA’s three-part test for defining PSGs; 5) argue politics; 6) document systematic truncations of due process; 7) limit Matter of A-B-; 8) apply for bonds; 9) take appeals; 10) challenge the precedents resulting from Sessions’s and Barr’s unethical participation in the quasi-judicial process; 11) make the historical record; and 12) fight “Dred Scottification.”
I also encourage all of you to read and subscribe (it’s free) to my blog, immigrationcourtside.com, “The Voice of the New Due Process Army.”
The antidote to “malicious incompetence” is “righteous competence.” Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies, with resulting “Aimless Docket Reshuffling,” intentionally “jacked up” and uncontrollable court backlogs, and “dumbed down” judicial facades being pursued by this Administration will drive the Immigration Courts over the edge.
When that happens, a large chunk of the entire American justice system and the due process guarantees that make America great and different from most of the rest of the world will go down with it. As the late Dr. Martin Luther King, Jr., said in his Letter from a Birmingham Jail, “injustice anywhere is a threat to justice everywhere.”
The Immigration Court’s once-noble due process vision is being mocked and trashed before our very eyes by arrogant folks who think that they can get away with destroying our legal system to further their selfish political interests.
Now is the time to take a stand for fundamental fairness and equal justice under law! Join the New Due Process Army and fight for a just future for everyone in America! Due process forever! “Malicious incompetence” never!
(04-27-19)
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PWS
04-28-19