Legal Immigration – Page 4 – immigrationcourtside.com

🇺🇸🗽⚖️ ANOTHER VIEW, FROM DAN KOWALSKI @ SUBSTACK: “An Opportunity, Not a Crisis — Let them in. Give them work permits. Watch America thrive!”

An Opportunity, Not a Crisis

Let them in. Give them work permits. Watch America thrive.

DAN KOWALSKI

DEC 29

READ IN APP

Reading* the news, it appears that many are freaking out about the “crisis” along the U.S. / Mexico border.

In fact, there is no crisis. Yes, there are logistical problems around feeding and housing migrants, and legal problems around sorting out their legal claims in immigration court.

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But the numbers are the numbers: “[T]he past decade has seen unusually slow growth in immigration. In fact, the period from 2012 to 2022 saw slower growth in the immigrant share of the population than the 2000s, 1990s, 1980s and 1970s. You have to go all the way back to the 1960s, when the immigrant population actually shrank, to find a lower growth rate.” – David J. Bier, Oct. 3, 2023

America is graying. We need more immigrants, not fewer, and the younger the better. “With the national unemployment rate reaching a historic low of 3.4% in 2023—and states like Massachusetts (2.5%) and Pennsylvania (3.5%) reaching record lows—employers and elected officials have been desperate to find new workers.” – Andrew Kreighbaum, Dec. 29, 2023.

But under current law, it can take many months, if ever, for migrants to obtain work permits. Meanwhile, they are forced to work for cash, under the table, exposed to horrible working conditions, sub-market wages and the continual threat of deportation. Once they have work permits, however, they gain bargaining power.

Hein de Haas, professor of sociology at the University of Amsterdam, and the author of How Migration Really Works, says: “Fundamental choices have to be made. For example, do we want to live in a society in which more and more work – transport, construction, cleaning, care of elderly people and children, food provision – is outsourced to a new class of servants made up mainly of migrant workers? Do we want a large agricultural sector that partly relies on subsidies and is dependent on migrants for the necessary labour? The present reality shows that we cannot divorce debates about immigration from broader debates about inequality, labour, social justice and, most importantly, the kind of society we want to live in.”

Many years ago I was “on the bus” for a border journalism junket. With me was Wall Street Journal editorial writer Jason Riley. His 2008 book, Let Them In: The Case for Open Borders, is still fresh as a daisy.

Look I get it: I was lucky enough to grow up bilingual, enjoy the benefits of “higher ed,” and travel a lot, so I am not afraid of immigrants. Many Americans aren’t so lucky. Still, unless we are OK with China and India eating our economic lunch, we need to face facts and let in more immigrants, stat.

* Pro Tip: Never watch television.

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*******************************

There’s plenty of empirical support for Dan’s view that we are largely creating a “crisis” while missing a golden opportunity. Indeed, while the U.S. is the world’s richest and most powerful nation, many smaller and poorer countries are able to resettle more asylum seekers, refugees, and other types of forced migrants, by both absolute numbers and proportion. See, e.g., https://www.nrc.no/shorthand/fr/a-few-countries-take-responsibility-for-most-of-the-worlds-refugees/index.html.

What we appear to have is more of a politically-driven crisis of lack of confidence, political will, and basic competence to manage a humanitarian situation that is predictable, largely inevitable, and an opportunity to harness the human capital of migration — the same energy that actually built our nation and made it great. We’ve wasted huge amounts of money, resources, and time on cruel, failed, counterproductive enforcement gimmicks, while underfunding and failing to creatively update adjudication and resettlement functions.

Sadly and disturbingly, politicos of both parties and the Administration are basically pledging and scheming to ignore the advice of experts and creative problem-solvers and to do an even worse job next year and into the future. They will certainly leave a scurrilous trail of fraud, waste, abuse, cruelty, futility, failure, death, and missed oportunities in their wake — if we let them get away with it!

Austin Kocher, Ph.D.
Research Assistant Professor
TRAC-Syracuse
PHOTO: Syracuse U.

Dan’s essay also reminds me of another recent Substack essay from immigration expert and statistical guru, Professor Austin Kocher. Austin’s theory is that backlogs in and of themselves might not be as bad as we often portray them — particularly in light of the alternatives and the intentional failures to make obvious reforms to improve the “robustness” and fairness of our immigraton system. See https://austinkocher.substack.com/p/3-million-cases-are-now-pending-in.

Here’s the core of what Austin says:

First, it is worth questioning our basic assumptions about whether the “backlog”, as it is somewhat sensationally referred to, is actually a bad thing. Unlike the Obama administration, when the rapid growth of court cases was more attributable to people who lived in the U.S. for a long time getting caught up in interior enforcement, the recent growth is almost entirely due to the arrival of asylum seekers into the country. If you believe that asylum seekers deserve an opportunity to have their cases heard, then these numbers might be a positive sign. More people will have at least a nominal opportunity to apply for asylum instead of being turned away outright at the border.

Second, it remains absurd to me that the current practice in the U.S. is to force recently arrived asylum seekers into court in front of an immigration judge rather than to direct their cases toward asylum officers at USCIS who are trained for precisely this purpose. Immigration courts were designed to adjudicate cases of non-citizens who are suspected of violating U.S. immigration laws. The courts are adversarial environments that, as far as I can tell, require far more taxpayer resources and migrant resources than non-adversarial asylum interviews do. The fact that there are 3 million cases in court is, to me, an indictment of a system that treats humanitarian crises through the lens of quasi-criminalization.

Third, since no real change is likely forthcoming, I think we should rethink our sensationalization of the backlog number and simply accept the growing immigration court backlog much like we accept the U.S. national debt ticker in New York City.2 It’s just going to keep going up unless something absolutely fundamental changes about the world we live in. Get over it. This is how things work now. We need to end the delusional thinking that reforms—even much-needed reforms, such as the creation of an independent court system—are going to “solve” the backlog. The U.S. immigration system either needs radically rethought or we need to simply accept that the number of pending cases will reach 4 million, 5 million, or 6 million cases in the next few years.

Lastly, if we really want to solve the backlog, the easiest way to resolve the backlog is for Congress to give everyone with an NTA (i.e., everyone with a pending court case) and who meets certain minimal criteria a special visa that regularizes their status and puts them on a path to citizenship just like other lawful permanent residents. Yes, yes—I know that not everyone will like that solution for political reasons, but at least admit that you don’t like it for political reasons, not because it wouldn’t solve the backlog (because it would). After all, the US Census Bureau is already forecasting absolute population decline in the US within our lifetimes. Three million new citizens now wouldn’t solve that problem, but it might not hurt in the long run.

I was struck by his second point. One of the positive regulatory changes made by the Biden Administration was to confer authority on USCIS Asylum Officers to grant asylum immediately, at the border or in reception centers, rather than referring all arriving asylum seekers who pass credible fear to the Immigration Courts. Nevertheless, as I among many pointed out, the Administration had neither the personnel nor the training in place to make this change effective.

I also argued that without a new BIA of expert Appellate Judges and exceptionally-well-qualified asylum expert Immigration Judges assigned to key Immigration Courts to provide dynamic leadership, de facto supervision, and a series of far better positive precedents guiding adjudicators to grant asylum in many repetitive situations, this positive change was doomed to failure.

Sure enough, the Administration botched the implementation — running inept, timid, and minute “pilot programs” that could only be termed “sad jokes.” To make matters worse, when recently faced with a humanitarian situation at the border, where a “surge” of qualified Asylum Officers working with NGOs to screen arrivals could have made a huge difference, the Administration inexplicably “suspended” this most useful part of their regulations. Meanwhile, they opted to keep more problematic provisions in effect.

To compound the problem, nativist GOP State AGs mounted frivolous court challenges to the expanded role of Asylum Officers. Stripped of its legal gobbledygook, they essentially and absurdly argued that the Administration lacked authority to empower statutory Asylum Officers to grant asylum.

Dan’s essay found favor with well-known expert Careen Shannon:

This post about the opportunity presented by migrants who want to live in the United States is a sensible message with which to end the year. Kudos to Dan Kowalski for stating what should be obvious but apparently cannot be repeated often enough.

🇺🇸 Due Process Forever!

PWS

12-31-23

🗽⚖️ REFUGEE EXPERT BILL FRELICK @ THE HILL: HUMAN RIGHTS ARE NON-NEGOTIABLE!

https://thehill-com.cdn.ampproject.org/c/s/thehill.com/opinion/immigration/4380120-biden-must-not-trade-away-the-right-to-seek-asylum/amp/

On the eve of a U.S. presidential election year and under the shadow of wars in Ukraine and Gaza, asylum seekers and refugees have become chips on the Capitol Hill bargaining table.

What risks being lost in this high-stakes game is a recognition that fundamental human rights are not negotiable, including “the right to seek and to enjoy in other countries asylum from persecution” enshrined in the Universal Declaration of Human Rights.

. . . .

******************

Read the rest of Bill’s article at the link.

Echoes what many of have saying for a long time! The problem is that the politicos of both parties have abandoned due process (except as it applies to them personally or to their cronies) and human rights.

🇺🇸 Due Process Forever!

PWS

12-30-23

🗽⚖️ PROVING OUR POINT, AGAIN: “Sir Jeffrey” & I Have Been Ripping The Garland BIA’s Contrived “Any Reason To Deny” Misinterpretations Of Nexus & PSG — 1st Cir. Is Latest To Agree With Us! — Espinoza-Ochoa v. Garland

Kangaroos — Turning this group loose on asylum seekers is an act of gross legal, judicial, and political malpractice by the Biden Administration and Merrick Garland!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community:

http://media.ca1.uscourts.gov/pdf.opinions/21-1431P-01A.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/big-psg-and-nexus-victory-at-ca1—espinoza-ochoa-v-garland

“Here, the IJ and BIA found, and the government does not dispute, that Espinoza-Ochoa credibly testified that he experienced harm and threats of harm in Guatemala that “constitute[d] persecution.” But the agency concluded that Espinoza-Ochoa was still ineligible for asylum for two reasons. First, it held that Espinoza-Ochoa had failed to identify a valid PSG because the social group he delineated, “land-owning farmer, who was persecuted for simply holding [the] position of farmer and owning a farm, by both the police and gangs in concert,” was impermissibly circular. Second, the IJ and BIA each held that, regardless of whether his asserted PSG was valid, the harm Espinoza-Ochoa experienced was “generalized criminal activity” and therefore was not on account of his social group. We conclude that the BIA committed legal error in both its PSG and nexus analyses. We first explain why Espinoza-Ochoa’s PSG was not circular and then evaluate whether his PSG was “at least one central reason” for the harm he suffered. Ultimately, we remand to the agency to reconsider both issues consistent with this opinion. … For all these reasons, we agree with Espinoza-Ochoa that legal error infected both the PSG and nexus analyses below. Accordingly, we GRANT the petition, VACATE the decision below, and REMAND for further proceedings consistent with this opinion.”

[Hats way off to Randy Olen!]

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You’ve been reading about this damaging, deadly legal travesty going on during Garland’s watch:

🌲UNDER YOUR TREE: A GIFT 🎁 FROM “SIR JEFFREY” CHASE OF THE ROUND TABLE 🛡️— “Asylum In The Time Of M-R-M-S-“ — “One reaction to this decision would have involved explaining that the Board’s illogical holding was reached not by error but by design, in furtherance of a restrictionist agenda; asking why the current administration hasn’t changed the makeup of a BIA specifically constructed to do exactly that . . . . But such talk would be of no practical help. What those representing asylum applicants and those in government deciding those claims need now is a path to negotiate this latest obstacle and still reach the correct result.”

🤯 MISFIRES: MORE MIXED MOTIVE MISTAKES BY BIA — “Expert” Tribunal Continues Underperforming In Life Or Death Asylum Cases! — Sebastian-Sebastian v. Garland (6th Cir.) — Biden Administration’s “Solution” To Systemic Undergranting Of Asylum & Resulting EOIR Backlogs: Throw Victims Of “Unduly Restrictive Adjudication” Under The Bus! 🚌🤮

How outrageous, illegal, and “anti-historical” are the Garland BIA’s antics? The classic example of Marxist-Leninist revolutionary persecutions involve targeting property owners, particularly landowners. Indeed, in an earlier time, the BIA acknowledged that “landowners” were a PSG. See, e.g., Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).

But, now in intellectually dishonest decisions, the BIA pretzels itself, ignores precedent, and tortures history in scurrilous attempts to deny obvious protection. These bad decisions, anti-asylum bias, and deficient scholarship infect the entire system.

It makes cases like this — which could and should have easily been granted in a competent system shortly after the respondent’s arrival in 2016 — hang around for seven years, waste resources, and still be on the docket.

This is a highly — perhaps intentionally — unrecognized reason why the U.S. asylum asylum system is failing today. It’s also a continuing indictment of the deficient performance of Merrick Garland as Attorney General.

Obviously, these deadly, festering problems infecting the entire U.S. justice system are NOT going to be solved by taking more extreme enforcement actions against those whose quest for fair and correct asylum determinations are now being systematically stymied and mishandled by the incompetent actions of the USG, starting with the DOJ!

🇺🇸 Due Process Forever!

PWS

12-28-23

⚖️🗽👏 ESTHER NIEVES OF WICKER PARK, IL “GETS” THE MESSAGE OF CHRISTMAS 😇 & THE HUMANITY OF ASYLUM SEEKERS, EVEN IF OUR LEADERS (AND TOO MANY “FOLLOWERS”) DO NOT!🤯☹️👎

Description Immigrants & Refugees Welcome - Banner on Facade - Pilsen - Chicago - Illinois - USA Date Taken on 18 February 2017, 10:55 Source Immigrants & Refugees Welcome - Banner on Facade - Pilsen - Chicago - Illinois - USA Author Adam Jones from Kelowna, BC, Canada — Description Immigrants & Refugees Welcome – Banner on Facade – Pilsen – Chicago – Illinois – USA
Date Taken on 18 February 2017, 10:55
Source Immigrants & Refugees Welcome – Banner on Facade – Pilsen – Chicago – Illinois – USA
Author Adam Jones from Kelowna, BC, Canada
Creative Commons License

From the Chicago Sun Times:

https://chicago.suntimes.com/2023/11/30/23982579/migrants-families-racism-venezuela-chicago-tents-nuclear-power-plant-war-letters

Migrants are cut from the same cloth as the rest of us

One of the words I have not heard to describe migrants — but is a more accurate than the negative portrayals — is “families.”

By Letters to the Editor Nov 30, 2023, 5:11pm EST

With the holidays upon us, there will undoubtedly be plenty of work parties, shopping sprees with kids in tow and the ubiquitous family gatherings. The coming months will also challenge us to wear layers of clothes and wrap ourselves and our loved ones in blanket-like coats. I am fortunate to have plenty of gloves, scarves, coats and boots.

Others are less fortunate. The unfortunate ones include the “new arrivals,” most of whom have never experienced a Chicago winter. Since the migrants’ arrival, critics have taken to the airwaves offering their comments about the tents, buses, use of police stations, encroachment on city streets, and, what they believe is the destruction of the city’s social and economic fabric. Descriptions of migrants are also disconcerting: liars, troublemakers, thieves, wayward parents using their kids to manipulate the immigration system and outsiders trying to live off the municipal dough.

One of the words I have not heard but is a more accurate depiction of the new arrivals is families. The buses full of people reflect a multi-generational exit from countries steeped in turmoil and unrest: infants, children, parents, or other caretakers. Describing those who arrive as families could lead us to consider them fully human, more like us. Instead, we use words that create a chasm that places the migrants at an arm’s distance from us, society and our city.

Throughout the next month, love, joy, harmony and peace will be words we will likely hear daily in songs, written in holiday cards and celebrated in plays and movies that bring friends and families together. Some will celebrate the season by remembering the birth of a unique child. Warned to flee to ensure the safety of his wife and newborn child, the family patriarch left for other lands. Wouldn’t it be remarkable if we could see the face of this child in the faces of the children we see coming here? Perhaps we can take the first step by using words that remove the stigma and distance between us and the “new arrivals.” The words? Families, of course.

Esther Nieves, Wicker Park

********************

Yup, contrary to the absolute, hateful, BS from Trump, Johnson, and the rest of the MAGA right, and the disgraceful indifference of too many Dems, most migrants want: 1) security, 2) opportunity, and 3) a better future, particularly for family. That’s what I found over more than 13 years on the trial bench at the Immigration Court. Basically, what all of us want from life!

Migrants deserve fair, humane, dignified treatment from the U.S. and our legal system, regardless of whether they ultimately are able to meet the legal criteria to remain!

🇺🇸 Due Process Forever!

PWS

12-24-23

🤯 “CHRISTMAS @ THE BORDER 2023” — “The Prince of Peace,” A Poor Palestinian Jewish Outsider & Alleged Threat To The Powerful, Might Be Astounded By Trading Human Lives & Futures Of The Most Vulnerable For Bombs! — 2k Years Later, Folks Claim His Name Yet Mock His Humble, Merciful Message About Treating Fellow Humans With Kindness, Dignity, Respect! 🤯

Holy Family at the Border — Families arriving at the border today likely to find those in power parrot the words of Christ while ignoring his teachings about mercy, humility, humanity.
IMAGE: Sojourners

Todd Miller in The Border Chronicles:

https://www.theborderchronicle.com/p/the-modern-day-nativity-scene-a-concertina?r=1se78m&utm_medium=email

I am at the Stanton Street Bridge between El Paso and Ciudad Juárez, where one year ago I watched groups of people wade through the shallow water to “pedir posada,” the Spanish-language term used for Joseph and Mary asking for refuge in Bethlehem 2,023 years ago. This year, there are no people below me, at least not right now, and the Rio Grande is a greenish, contaminated trickle that will dry up completely just east of El Paso, and then be replenished by the Rio Conchos 200 miles downriver in Presidio, Texas. On the other side of the bridge, you can see that the holiday season is in full gear as the line of people entering the United States coming from Ciudad Juárez extends up to the top of the bridge, exactly above the river. Surrounding the river are the props of the modern-day nativity scene: coiling razor wire, 30-foot walls, Texas Army National Guard troops and their armored jeeps, armed U.S. Border Patrol agents in their green-striped trucks, drone surveillance, camera surveillance, biometric systems. Partially, this is the result of the most money ever put toward federal border and immigration enforcement (as we reported this year, 2023 was $29.8 billion, a record number, which adds to the more than $400 billion since 2003). Partially, this is because Texas’s spending on Operation Lone Star, courtesy of Governor Greg Abbott and his right-wing, un-Christian justification machine, which has added up to $4.5 billion over the last two years. And this has been the response of the United States for people “pidiendo posada” for 30 years since Operation Blockade/Hold the Line began a border-building spree that has not ceased: there is no room at the inn.

I think of that cold night on the ground in a stable that is depicted in so many places this time of year as I walk past shivering refugees in heavy coats sitting outside against the Sagrado Corazón church in El Paso a few blocks from the border. I am reminded of the hundreds upon hundreds of people arriving to the Arizona border, as Melissa reported on earlier this week. I am reminded of the young Guatemalan mother I met myself at the border wall in late November as she tended to her two-month-old under the 30-foot border wall. They had been waiting there for two days. The infant was sick, and the nights were cold. The rest of the group, from the coast of Guatemala, built a fire to keep warm. When were the wise men going to arrive, the kings, the angels? The humanitarians did arrive, as they do, day after day (see Melissa’s reporting on that). I am reminded of being in Bethlehem myself a few years back, visiting the Aida refugee camp of Palestinians, which was surrounded by a tall concrete wall that had an embedded “pill box,” or a tower where snipers could point their assault rifles located mere miles from that stable where Mary gave birth on the cold ground. The Christmas story is playing out all around us, as lawyer and anthropologist Petra Molnar pointed out for us just yesterday. Where Mary, Joseph, and the infant Jesus had to flee Bethlehem when King Herod started to wield authoritarian power, the long trek to Egypt fleeing persecution is happening right now, throughout the world, such as in the Darién Gap in Colombia and Panama, as discussed in Melissa’s two interviews with anthropologist Caitlyn Yates—one podcast in December, one in August. Or the equivalent might be in the Mediterranean, as we discussed with Lauren Markham last June after a ship capsized near Greece, killing 600 people, or the countless places across the world where people struggle with a huge enforcement apparatus, which Anna Lekas Miller wrote about in her book Love Across Borders. We have spent the year doing our best to give you insight into what is happening on our borders.

I love this time of year, December, because things start to slow down, the frenetic pace starts to wane. For me, this becomes a more reflective period. Yet this modern Christmas story is anything but reflective. On television sets, commercials remind us of the holiday spirit (and to buy as much as we can), and movies have heartwarming tales of people coming together. Yet hospitality is scoffed at in words and policy, no matter what president, no matter what political party. Melissa has reported time and time again about the dehumanizing rhetoric; earlier this week, she wrote about a Fox News reporter talking about invaders and invasions and “credible fear thresholds.” This discourse abounds, with stories of people “taking advantage of our asylum system,” and claims that the United States can’t absorb any more people. Did Mary and Joseph hear similar soundbites on their journeys?

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In these stories, we rarely hear about U.S. foreign policy, both historical and current. Take, for example, the Monroe Doctrine’s effect in Latin America: the centuries of upholding dictatorships, training generals, arming militaries—and, lately, creating border guards—and influencing politics, as well as the economic domination, in which corporate power and extractive industries enjoy a borderless world and can travel anywhere and take anything they want (see NAFTA, see CAFTA), from precious resources to cheap labor. Meanwhile, regular people—sometimes the very people displaced by corporate power—face harsher and harsher border regimes that extend throughout the continent. The same thing the Greg Abbotts of the world accuse undocumented people of doing here, corporate power is doing there. Studies have continually shown how a migrant labor force bolsters the U.S. economy in myriad, even critical ways (see, for example, the film A Day without a Mexican), yet border crossers get blamed for the big societal problems as if they had the power to set policy in corporate board rooms and in Washington. In the halls of power, debates stagnate over whether people are refugees or economic migrants—creating more divisions between the people most affected by the entrenched borders.

At the height of her pregnancy, Mary and Joseph walked for days, fleeing a Caesar Augustus’s occupying force—a story that resonates with more than 184 million people on the move today. I am reminded of my dear friend Irene Morales, a nun with the Madres of the Eucaristia, who I worked with two decades ago and who told me day after day—as we traveled through northern Mexico and the U.S. borderlands—that she saw Christ in the faces of people on the move. In the early 2000s, thousands of people were arriving to Altar, Sonora, to cross through the Arizona deserts. The people I talked to and interviewed were mostly from southern Mexico, and in many cases they were migrating because they could no longer make ends meet. From about 2002 to 2005, I talked to hundreds of people, and often it was parents thinking about their children, parents who talked about skipping meals for their children, wanting their children to get an education, or sometimes it was children on the move for a sick parent. So often it was a story of sacrifice at a time in a post-9/11 era characterized by a massive ramp-up on the border, with terrorism and migration blurring into each other at a policy level. “El rostro de Cristo,” Irene told me.

Stanton Street Bridge at sunset with a long line of people crossing from Ciudad Juárez to El Paso as is typical during the holidays. (Photo credit: Todd Miller)

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As I stand on the bridge in Juárez, where everything seems basically the same, I know a lot has happened over the last year, and we have covered much of it at The Border Chronicle. I, for one, have been following that contaminated river and have gone into Chihuahua to report on border water struggles for a forthcoming book, and I have shared some photo essays here. Melissa also wrote about Chihuahua earlier this year for The New Yorker, focusing on the epidemic of journalists assassinated in Mexico, which she summarized in The Border Chronicle. I feel so fortunate to work alongside Melissa, who not only wrote (and talked to experts) about the innards of this massive border fortification, whether it be the surge of wall building, deadly vehicle chases, Operation Lone Star, or Florida cops patrolling the border—and the right-wing rhetoric that so often propels it (not to mention the Elon Musk circus)—but also about people in border communities for inspiration and solutions such as border artists, a brilliant sidewalk school, or a doctor who spends his time treating border crossers (Doctor Brian Elmore also penned an op-ed for us). And that’s just a taste. This year, I had the opportunity to go to Yale and debate border enforcement, a humbling and educational experience, to say the least. As I wrote about my losing effort, some of the dynamics we constantly struggle with in this sort of border journalism were clearly revealed.

Much has changed over the last year, but—from what I can tell suspended between El Paso and Ciudad Juárez—much has remained the same. The border policy is the same, there is more money in the budgets, there is more money in as-of-yet-unpassed supplemental funding bills, there are more and more contracts for private industry. And now we have an election year. And, as we all know, during an election year, the border is a politician’s sacrificial lamb. So be prepared for a good dose of border theater, and we’ll be here with our coverage, commentary, interviews, and podcasts. The last thing I want to do is stand on that bridge a year from now and watch people wade through the trickling Rio Grande to “pedir posada” at a large gate at an even more fortified border wall in El Paso. That is, however, the likely outcome of 2024, and we will cover all of it. But we will also find the spaces where people are trying to make change, we will listen to the border communities, and we will document the humanitarian efforts. And trust me you, we will be looking in the places where there is generosity toward the stranger.

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40 And the King will answer them, ‘Truly, I say to you, as you did it to one of the least of these my brethren, you did it to me.’

Matthew 25:40

It’s very straightforward. Yet, somewhere between the Nativity and MAGAMike Johnson, the message got lost! The real “War on Christmas” and Judeo-Christian values is being conducted by those in powerful positions who disingenuously press for deadly, illegal, inhumane, dehumanizing treatment of forced migrants!

Thoughtful, practical solutions — more aligned with Judeo-Christian values — proposed by experts with first-hand experience with migrants and migration are arrogantly ignored by our leaders. See, e.g., https://immigrationcourtside.com/2023/12/17/⚖️🗽-there-are-ways-to-harminize-harness-the-reality-huge-positive-potential-of-global-human-migration-they-are-neither-simple-nor-imm;

https://immigrationcourtside.com/2023/12/19/⚖️🤯👩🏽⚖️👨🏻⚖️-as-garlands-backlog-hits-3-million-way-past-time-to-clean/.

Even now, U.S. and Mexican leaders insist, contrary to evidence, that the answer to forced migration is more and harsher enforcement. See, e.g., https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjGta3V66WDAxV8D1kFHU7ECn0QFnoECBcQAQ&url=https://apnews.com/article/joe-biden-mexico-border-negotiations-956cbc7a92ac08572327533ce1572a2a&usg=AOvVaw0lxqJYakyq5Ocbm0VxiVld&opi=89978449.

To quote Colby King in today’s WashPost:

I read somewhere that God’s eternal promise of Christmas is a closeness with humanity, forgiveness of sins and a radical, unconditional love for all. We ain’t there yet.

https://www.washingtonpost.com/opinions/2023/12/22/christmas-prayer-bethlehem-gaza-war-peace/

Colbert I. King
Columnist
Washington Post

Also lost in the rush to cruelty and “deterrence:” Individuals have a legal right to apply for asylum at the U.S. border regardless of whether they arrive at a port of entry. See, INA, section 208.

The so-called “illegal” crossings are driven largely by the USG’s failure to implement timely and fair screening and processing at ports of entry. Even so, many individuals cross nearby the ports and wait patiently, in an orderly manner, outdoors, often in harsh conditions, to be “processed” by CBP.

This is hardly a “law enforcement crisis.” It’s a humanitarian crisis that, despite warnings and plenty of constructive ideas from experts, Congress and the Executive have jointly failed to address in a reasonable and responsible manner.

How unserious are Congress and the Administration about addressing the situation at the border in a responsible manner? The increasing flow of asylum seekers is predictable, considering that it is part of a worsening worldwide refugee flow.

So one logical, obvious thing to do, rather than building walls, prisons, and installing barbed wire, would be to hire and “surge” more USCIS Asylum Officers to the Southern Border to screen asylum seekers for credible fear, perhaps even expanding operations to foreign territory.

According to USCIS, there were 1028 authorized Asylum Officer positions in September 2022. https://www.uscis.gov/sites/default/files/document/outreach-engagements/Asylum-Quarterly-Engagement-Oct-6-22.pdf. One year later, in September 2023, that number hadn’t changed! And, remarkably, the number of those positions filled had had actually slightly declined from 78% to 74%. https://www.uscis.gov/sites/default/files/document/outreach-engagements/AsylumQuarterlyEngagement-FY23Quarter4PresentationTalkingPoints.pdf. Talk about a disconnect!

🇺🇸 Due Process Forever!

PWS

12-23-23

😎🇺🇸🗽 LET’S HAVE SOME GOOD NEWS FROM THE INCOMPARABLE MDP @ Tahirih Justice Center About A “T Victory!”

Maria Daniella Prieshoff
Senior Attorney
Tahirih Justice Center
Baltimore, MD
PHOTO: Tahirih

Maria Daniela Prieshof writes:

A brighter future is now ahead for our client, “Elise”, who was just granted T visa status! At 16 years old, Elise was trafficked into the U.S. by her father and adult brother, who forced her to work two jobs in the restaurant industry in Maryland, almost 60 hours a week at below $6/hour. Whenever she had time to be at home, her brother forced her to do all the household chores, locked her up at home, monitored all her movements, and assaulted her multiple times. Her brother and father controlled all her earnings and Elise would go hungry most days. With the help of a coworker, Elise escaped to safety and in 2022 was referred to Tahirih Justice Center for free legal and social services. My amazing social services colleague, Feamma Stephens, advocated for Elise to access urgent services to combat her homelessness and receive mental health care.

This week, we all celebrated with Elise when we received news that she’d been finally granted T visa status! Elise is delighted and eager to apply for scholarships so she can afford to go to college and achieve her dreams. ❤️ 🌈

****************************

Thanks, MDP, for reminding us that notwithstanding the distortions being foist upon the public about the “border security threat” — basically, thousands of individuals lining up in an orderly manner and waiting patiently, for days or hours, often in freezing conditions, to be processed and screened by the USG — the system can work to save lives, particularly with top-level representation. If there are “terrorists” seeking entry into the U.S. it’s highly unlikely that they are standing in those lines to present themselves to law enforcement officials or that they are going through the complicated and difficult process for getting T visas.

Seems like effective representation, counseling, and screening for those arriving at the border would be a good starting point for investing in an orderly border. See, e.g., our recent proposal for “Judges Without Borders:” https://immigrationcourtside.com/2023/12/13/👩🏽⚖%EF%B8%8F👨🏻⚖%EF%B8%8F-⚖%EF%B8%8F🗽judges-without-borders-an-innovative-op/.

But, apparently it isn’t as politically useful and profitable (for some) as walls, detention, deportations, and deprivations of legal rights. And, human rights don’t seem to interest the media as much as being able to trumpet “border crises” and photo ops of Texas Governor Greg Abbott holding up a signed copy of his latest nativist deportation gimmick.

🇺🇸 Due Process Forever!

PWS

12-21-23

🇺🇸🗽😎 “Empowering Immigrant Entrepreneurs: A Blueprint for Success” — Another Great PSA By Diane Harrison Exclusively For “Courtside!”

Empowering Immigrant Entrepreneurs:
A Blueprint for Success

By Diane Harrison

Special to immigrationcourtside.com

Dec. 20, 2023

Immigrant entrepreneurs stand at the precipice of immense opportunity, yet they face unique challenges unknown to their native counterparts. Their journey in carving out a niche in foreign markets requires not only an unwavering entrepreneurial spirit but also a well-crafted strategy that navigates the intricacies of a new business landscape. From legal compliance to market understanding, their path is one of resilience and adaptability, leading to unparalleled growth and contribution in their new homeland. Learn more from this article presented by ImmigrationCourtside.com.

Seek Legal Guidance

The importance of legal compliance cannot be overstated. Immigrant entrepreneurs benefit greatly from consulting with experienced business attorneys who can navigate them through the complexities of local laws and regulations. This step is crucial in avoiding legal pitfalls and setting a firm foundation for business growth. Proper legal advice can also aid in understanding international trade laws, essential for businesses looking to operate globally.

Establish Financial Stability

Starting a business often involves balancing the initial stages of your venture with a steady source of income. Many entrepreneurs take on part-time or flexible jobs that allow them to devote necessary time to their business while ensuring financial stability. Look for employment that fits your skills and potentially supports your business venture.

Stand out as a candidate by creating an impactful resume and cover letter. Cover letters are the most difficult, so use online tools to make this process easier. You can try this page, which outlines helpful steps for creating a great cover letter. Other ways to make your cover letter shine include using appropriate references to the job, sticking with clear, precise language, and converting your document to a PDF.

Dive into Market Insights

Understanding the market is essential for any successful business, especially for immigrant entrepreneurs. Conducting detailed research to comprehend consumer needs and preferences is key, as it enables them to customize their products or services, ensuring they meet market demands effectively. This alignment significantly boosts their potential for success.

Gaining deep market insight also aids in anticipating future trends, providing a distinct competitive advantage. Moreover, this knowledge helps in identifying underserved niches or emerging opportunities, allowing for strategic positioning and expansion. Additionally, it fosters better risk management by preparing the business for market fluctuations and changes in consumer behavior.

Opt for an LLC

Selecting the appropriate business structure is crucial for immigrant entrepreneurs, with an LLC (Limited Liability Company) being a popular choice due to its considerable advantages. An LLC provides liability protection, shielding personal assets from business debts and lawsuits, and offers operational flexibility, adapting to the unique needs of the business.

This decision significantly influences the security and expansion possibilities of an immigrant entrepreneur’s venture. Furthermore, an LLC streamlines tax processes, thereby enhancing financial management efficiency and potentially reducing tax burdens.

Leverage Community Resources

Utilizing local resources is a strategic move for immigrant entrepreneurs, offering a plethora of support and expertise. By engaging with business development centers and networking in the community, they gain critical insights and connections, essential for understanding and thriving in the local business environment.

This involvement not only aids in navigating the local market but also accelerates business growth. Access to these resources also eases cultural acclimation, helping entrepreneurs to comprehend and assimilate into the local business culture.

Harness the Power of Digital Marketing

In the digital era, a well-crafted online marketing strategy is crucial. Tailoring digital marketing to connect with the target audience can significantly expand a business’s reach, attracting more customers and driving growth.

Effective digital marketing not only enhances visibility but also establishes a global presence, opening doors to international markets and opportunities. Additionally, it allows for precise targeting and analytics, enabling businesses to measure and optimize their marketing efforts for better results.

Cultivate Trust and Reputation

Building trust and a strong reputation in the market is essential. Immigrant entrepreneurs should focus on delivering exceptional quality, establishing a robust online presence, and seeking partnerships with established entities. This approach is vital for gaining customer loyalty and long-term business success. Cultivating a strong reputation also opens doors for future collaborations and opportunities.

Learn from Challenges

Adopting a positive perspective towards failures and setbacks is crucial. Viewing these experiences as learning opportunities allows immigrant entrepreneurs to refine their approach, increase resilience, and adapt to the evolving business landscape. Embracing these challenges also fosters innovation, driving entrepreneurs to find creative solutions and new business avenues.

In the world of entrepreneurship, immigrant entrepreneurs are the unsung heroes, turning their dreams into reality against all odds. Their journey, marked by determination and adaptability, is a testament to the power of resilience and strategic planning. As they weave their stories into the fabric of their new communities, they not only achieve personal success but also enrich the diverse tapestry of global business. Their successes are not just their own; they are beacons of hope and inspiration for future generations of entrepreneurs to come.

For “The Voice of the New Due Process Army”, visit ImmigrationCourtside.com today!

IMPORTANT NOTICE:

While we are pleased to present this article as a helpful informative tool for prospective immigrant investors, please remember that it constitutes neither legal advice nor investment/financial advice. As noted in the article, you should obtain your own professional legal counsel and financial advisor to evaluate your personal and financial situations before making legal, business, and/or investment decisions. Laws, financial markets, and business regulations can vary greatly from locality to locality within the United States.

⚖️🤯👩🏽‍⚖️👨🏻‍⚖️ AS GARLAND’S BACKLOG HITS 3 MILLION, WAY PAST TIME TO CLEAN HOUSE, 🧹 BRING IN COMPETENT EXPERTS, 🧐 & START IMPLEMENTING THE “MPI PLAN” FOR BACKLOG REDUCTION & DUE PROCESS! — Empower “The Magnificent Seven” To Take The Field & Bring Order From Chaos!

As predicted by experts from the “git go,” AG Merrick Garland’s indolent, half-baked approach to his most important responsibility — bringing justice and functionality to his Immigration Courts, has been a disastrous failure endangering our entire democracy!
PHOTO: Thomas Hawk
Creative Commons
Amateur Night

Here’s the latest report from TRAC documenting how former Federal Judge Merrick Garland’s failure to fulfill his most important duty — reforming and fixing the U.S. Immigration Courts, has built backlog at record paces and undermined our democracy:

https://trac.syr.edu/reports/734

Here’s the “action plan” that’s been publicly available since July 2023 — “Rethinking The U.S. Immigration Court System” — yet largely, and disastrously ignored by Garland, his lieutenants, and the Biden Administration:

https://www.migrationpolicy.org/sites/default/files/publications/mpi-courts-report-2023_final.pdf

Executive Summary

The U.S. immigration courts—and the nation’s immigration enforcement system they support—face
an unprecedented crisis. With a backlog of almost 2 million cases, it often takes years to decide cases. Moreover, the recent growth in the caseload is daunting. In fiscal year (FY) 2022, immigration courts received approximately 708,000 new cases, which is 160,000 more than in any previous year. Such numbers, coupled with the courts’ resource constraints and decision-making processes, ensure that the court system will continue to lose ground.

For asylum cases, which now make up 40 percent
of the caseload, the breakdown is even more dire. Noncitizens wait an average of four years for a hearing on their asylum claims to be scheduled,
and longer for a final decision. Those eligible for protection are thus deprived of receiving it in a timely manner, while those denied asylum are unlikely

to be returned to their countries of origin, having
established family and community ties in the United
States during the intervening years. The combination
of years-long backlogs and unlikely returns lies at the
heart of our broken asylum system. That brokenness contributes to the pull factors driving today’s migration to the U.S.-Mexico border, thereby undermining the integrity of the asylum and immigration adjudicative systems, and immigration enforcement overall.

Many of the factors contributing to the dramatic rise in the courts’ caseload have deep and wide-reaching roots, from long-standing operational challenges in administering the courts to new crises in the Americas that have intensified both humanitarian protection needs and other migration pressures. The scale of these twin challenges has made it more urgent than ever to address them together. In the aftermath of lifting the pandemic-era border expulsion policy known as Title 42 in May 2023, the Biden administration is implementing wide-ranging new border policies and strategies that establish incentives and disincentives linking how migrants enter the United States with their access to the asylum system. But timely, fair decisions are also central to the success of this new regime.

While many other studies have outlined wholesale changes in the immigration court system that only Congress can enact, such legislative action seems unlikely, at least in the near term. Thus, this report calls
for changes that can be made by the Executive Office for Immigration Review (EOIR), the agency within the Department of Justice (DOJ) that houses the immigration courts, as it is presently organized. Because the immigration courts are administrative bodies, the executive branch has considerable latitude in determining their policies and procedures. The changes laid out in this report hold great potential to improve the courts’ performance and, in turn, enhance the effectiveness of the U.S. immigration system more broadly.

Some steps in this direction are already being taken. The Biden administration has streamlined certain important policies and procedures at EOIR. Nonetheless, these courts and the Board of Immigration Appeals

2 million

cases in the backlog

About 650

immigration judges nationwide

Less than 500

cases completed per judge in most recent years

1

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

(BIA), which reviews appeals from immigration court decisions, fall short of meeting the hallmarks of a well- functioning adjudicatory system: that decisions be accurate, efficiently made, consistent across both judges and jurisdictions, and accepted as fair by the public and the parties in the case.

Related issues of caseload quantity and decision quality have given rise to the difficulties EOIR is confronting. Under the Trump administration, the reopening of thousands of administratively closed cases and increased interior enforcement led to rising court caseloads. And since 2016, increased border crossings have accounted for growing numbers of new cases, many of them involving asylum claims.

Cases are also taking longer to complete. While pandemic-related restrictions played a role in this slowdown, case completion rates had in fact already been declining. In FY 2009, each immigration judge completed about 1,000 cases per year. By FY 2021, the completion rate had decreased to slightly more than 200 cases per year, even as the number of immigration judges grew. Thus, more judges alone are not the answer. Slow hiring, high turnover, and a lack of support staff have resulted in overwhelmed judges whose productivity has decreased as the backlog has grown.

Concerns about the quality of decision-making by immigration courts and the BIA have existed for decades. More than one in five immigration court decisions were appealed to the BIA in FY 2020, and appeals of BIA decisions have inundated the federal courts. Federal court opinions have pointed to errors of statutory interpretation and faulty reasoning when overturning decisions. Policy changes at

the BIA, ever-changing docket priorities from one
administration to the next, and some recent Supreme
Court directives have contributed to the diminished
adjudicative quality. Wide variances in case outcomes among immigration judges at the same court and across different courts around the country further point to quality concerns; for example, the rate at which individual immigration judges denied asylum claims ranged from 1 to 100 percent in FY 2017–22.

EOIR has increasingly turned to technology to manage its dockets, primarily through video-conferencing court proceedings. The COVID-19 pandemic accelerated its use of internet-based hearings. Four important, yet at times competing, considerations are central when evaluating how technology—and particularly video-conferencing tools—are used in immigration proceedings: efficiency, the impact of technical difficulties, security issues, and concerns about due process.

The U.S. Immigration and Customs Enforcement (ICE) attorneys who prosecute removal cases also play an important role in the court system. Their use of prosecutorial discretion, along with judges’ docket management tools, help shape which cases flow through the system, and how.

Legal defense representation—or the lack of it—is a critical issue plaguing the immigration court system. Noncitizens in immigration proceedings, which are civil in nature, are not entitled to free legal counsel, as

The rate at which asylum claims are denied varies widely, from

1% with one judge to

100%

with another in FY 2017-22

2

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

defendants in criminal proceedings are. But they can face life-changing, and sometimes life-threatening, circumstances when subject to an order of removal from the United States. Studies have repeatedly found that representation in immigration proceedings improves due process and fair outcomes for noncitizens. It also improves efficiency, as represented noncitizens move more quickly through immigration court. Lawyers, accredited representatives, immigration help desks, and legal orientation programs aid some noncitizens through this process. But many more move through complex proceedings pro se (i.e., unrepresented).

Federal funding for representation of noncitizens in removal proceedings is effectively barred. Public funding at the state and local levels has increased the availability of representation for some noncitizens. A large share of representation is provided by nonprofit legal services organizations and pro bono law firm resources. Nonetheless, representation is fragmented and insufficient, given the scale of need.

One element of this system that has seen notable signs of change in recent years has been how border management feeds into the courts’ caseload. The Biden administration began implementing a new
asylum processing rule at the southwest border in June 2022 that aims to ease the growing pressures on immigration courts.1 The rule authorizes asylum officers, who are part of U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security (DHS), to make the final decision in asylum cases instead of immigration judges. Asylum seekers whose claims are denied by an asylum officer can still appeal the decision, but on an expedited timeline. As such, the rule holds the potential to reduce the growth of the immigration court backlog and shorten adjudication times to months instead of years.

Since lifting the Title 42 expulsion policy, the Biden administration has paused implementation of the asylum rule due to competing demands for asylum officer resources. But returning to the rule, and strengthening EOIR’s functioning overall, will be important for managing the flow of cases into the immigration courts and the courts’ ability to keep pace with them. Doing so depends on the court system using technology better, more strategically exercising discretion in removal proceedings, and increasing access to legal representation so that courts deliver decisions that are both timely and fair.

This report’s analysis of the issues facing the nation’s immigration courts and its recommendations for addressing them reflect research and conversations with a diverse group of stakeholders—legal service providers, immigration lawyers and advocates, current and former immigration judges, BIA members and administrators, academics, and other experts who have administered, practiced before, and studied the immigration court system. The report urges EOIR and DHS, in its role as the agency whose decisions and referrals come before EOIR, to work together to:

Strengthen the immigration court system’s management and efficiency

► Schedule new cases on a “last-in, first-decided” basis. Such a reset to the system, which has proven successful in the past, could bring processing times on new cases down to months, rather than years.

1 This rule draws in part on proposals made in an earlier Migration Policy Institute (MPI) report: Doris Meissner, Faye Hipsman, and T. Alexander Aleinikoff, The U.S. Asylum System in Crisis: Charting a Way Forward (Washington, DC: MPI, 2018).

3

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

Because this disadvantages cases that have already been waiting for a long time, it should be treated as a temporary, emergency measure alongside policy and procedural reforms that protect fairness and promote efficiency more broadly. Shifting resources back to adjudicating older cases, as timeliness is established with incoming cases, is essential for shrinking the growth and size of the backlog, which should be among the courts’ highest priorities.

► Terminate cases that do not meet the administration’s prosecutorial guidelines, which focus priorities on felons, security threats, and recent entrants. One approach to this would be to task ICE attorneys with triaging backlog cases to determine which could be fast-tracked for grants of relief or for removal. Such efforts would allow the courts and ICE attorneys to focus on more serious cases, especially those involving criminal charges.

► Centralize case referrals from DHS. Instead of the current practice of having all three DHS immigration agencies (ICE, USCIS, and U.S. Customs and Border Protection) refer cases separately to EOIR, ICE attorneys should initiate all cases. As de facto prosecutors, they are best positioned to determine the legal sufficiency and priority for moving cases the government has an interest in pursuing.

► Establish two tiers of immigration judges—magistrate and merits judges—modeled on existing state and federal court systems where judges and staff are assigned to different roles or dockets so that cases move through the adjudication system efficiently and expeditiously.

► Expand the use of specialized dockets or courts that handle cases involving specific groups of noncitizens or require certain subject matter expertise, such as juveniles, families, reviews of credible fear determinations, cancellation of removal, adjustment of status, and voluntary departure.Restart the asylum officer rule and provide the support needed to implement it

► Establish a dedicated docket for the asylum officer rule’s streamlined appeal proceedings. As the most far-reaching reform the Biden administration has introduced for strengthening management of the asylum and immigration court systems, implementing the rule effectively is key to reducing the pace of caseload growth in the court system and discouraging weak claims.

Upgrade how the courts use technology

► Ensure that technology is used to make immigration courts fairer for everyone involved, such as by holding hearings remotely when parties would be unable to attend an in-person hearing. Special attention should be paid to how the use of technology can affect detained noncitizens and vulnerable populations such as children.

Increase access to legal representation

► Establish a new unit within EOIR devoted to coordinating the agency’s efforts to expand representation. The unit should collaborate with nongovernmental stakeholders to make representation of detained noncitizens a priority and to allow partially accredited representatives— some of whom may be non-lawyers—to appear in immigration court for limited functions.

4

AT THE BREAKING POINT: RETHINKING THE U.S. IMMIGRATION COURT SYSTEM

► Develop new and innovative ways to scale up representation by coordinating with lawyers who take responsibility for specific aspects of cases or non-lawyers who are specially trained and supervised
to do so. Legal service providers should build a multi-stage, collaborative online system that enables representation by lawyers or non-lawyers in specific stages of a case for which they have the requisite expertise (e.g., filing forms, attending bond or master calendar hearings, or seeking relief ). This approach requires creating e-files for cases, with files moving from one representative or provider to another as cases progress, resulting in both expert representation at each stage and greater efficiency in moving cases forward overall.

► Encourage efforts by state and local governments to provide and/or increase funding to support representation, especially given current restrictions on federal funding of representation in most removal cases.

Despite efforts by successive administrations to bring
the immigration court system’s unwieldy caseload
under control and to improve the quality of its
decision-making, the courts remain mired in crisis.
And while many of the most pressing problems have
roots that stretch back decades, they have in recent
years reached a breaking point. The measures
proposed in this report hold the potential to reduce
case volumes, increase the pace of decision-making,
and improve the quality of adjudications. They would
also mitigate migration pull factors that result from
years-long waits for decisions. The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.

The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement
and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.

BOX 1
About the Rethinking U.S. Immigration Policy Project

This report is part of a multiyear Migration Policy Institute (MPI) project, Rethinking U.S. Immigration Policy. At a time when U.S. immigration realities are changing rapidly, this initiative has been generating a big- picture, evidence-driven vision of the role immigration can and should play in America’s future. It provides research, analysis, and policy ideas and proposals—both administrative and legislative—that reflect these new realities and needs for immigration to better align with U.S. national interests.

The research, analyses, and convenings conducted for MPI’s Rethinking initiative address critical immigration issues, which include economic competitiveness, national security, and changing demographic trends, as well as issues of immigration enforcement and administering the nation’s immigration system.

To learn more about the project and read other reports and policy briefs generated by the Rethinking U.S. Immigration Policy initiative, see bit.ly/RethinkingImmigration.

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Read the full report at the link.

Not the first time I’ve said this, but it’s time for “Amateur Night @ The Bijou” (“A/K/A Merrick Garland’s failed EOIR”) to end! Reassign the EOIR senior management folks who have demonstrated “beyond any reasonable doubt” their inability to provide dynamic, due process with efficiency management and visiononary leadership and to solve pressing problems. (This includes the inability to stand up and “just say no” to bonehead “gimmicks” like Garland’s due-process-denying, quality diminishing, backlog-building, “expedited dockets”).

It’s not an exaggeration to say that the anti-asylum, anti-human rights, anti-reality charade now playing out in Congress is driven in large part by Garland’s three-year failure to do his job by getting functionality and due process focused leadership into EOIR.

Bring in a competent, expert executive team, hand them the MPI Plan, and empower them to move whatever “bureaucratic mountains” need to be moved to get results, including, but not limited to, major personnel changes at the BIA and in Immigration Courts and taking a “hard line” with counterproductive performance by DHS (actually “just a party” before the Immigration Courts, NOT “their bosses!”)

Bring in these experts:

Judge (Retired) Dana Leigh Marks
Professor Stephen Yale-Loehr
Dean Kevin Johnson
Michelle Mendez (NIPNLG)
Professor Michele Pistone
Jason “The Asylumist” Dzubow
Wendy Young (KIND)

Task this “Magnificent Seven” — folks with centuries of practical expertise and creative ideas for actually solving humanitarian problems (rather than making them worse, as per the ongoing travesty on the Hill) — with turning around the EOIR disaster; support and empower them to achieve results and to reject politicized bureaucratic meddling from DOJ and elsewhere! Make the long-unfilled “promise of INS v. Cardoza-Fonseca” — a legitimate, properly generous, practical, efficient asylum and refugee adjudication system that complies with international and domestic law and simple human decency — a reality!

This is about rebuilding America’s most important and consequential court system, NOT running an “government agency!”

This is also the “demand” that Congressional Dems SHOULD be making of the Biden Administration, instead of engaging in disgraceful (non) “bargaining” with GOP nativists that seek an end to asylum and an increase to human suffering and ensure continuing humanitarian disaster at our borders!

🇺🇸 Due Process Forever!

PWS

12-19-23

🤮☠️ AS CONGRESS ENGAGES IN TRUTH & REALITY FREE (NON) DEBATE ON HOW TO INFLICT MORE CRUELTY AND MAYHEM ON VULNERABLE ASYLUM SEEKERS, THE REAL IMMIGRATION PROBLEMS GO UNADDRESSED — “No Fair Day” Documents Continuing Abuse Of Kids In Immigration Court!

Stephen Miller Cartoon — Stephen Miller & Count Olaf. Despite promises to the contrary, the Biden Administration still channels Stephen Miller in its approach to kids in court. And, now they are working with GOP nativists and wobbly Dems in Congress to make things even worse, for kids and other asylum seekers!
Evil Twins, Notorious Child Abusers

A new “white paper” investigation from UCLA Center for Immigration Law and Policy documents shocking abuses already being inflicted on children Immigration Court even as Congress and the Administration look for more ways to strip asylum seekers of legal rights and human dignity:

https://law.ucla.edu/sites/default/files/PDFs/Center_for_Immigration_Law_and_Policy/No_Fair_Day_Children_in_Immigration_Court_White_Paper.pdf

EXECUTIVE SUMMARY

This white paper provides a comprehensive assessment of the Biden

administration’s treatment of children facing removal in immigra-

tion court. While much attention has rightly been given to the Biden

administration’s border and asylum policy, less attention has been

paid to child-specific policies in immigration court. This matters

both because tens of thousands of removal orders have been issued

against children during the Biden administration, and because chil-

dren’s cases present unique legal issues—including most obviously

that children generally bear little, if any, legal responsibility for the

situations in which they find themselves.

We find that the Biden administration took important steps at the

outset to protect children in ways the prior administration did

not. The decision to exempt children from the border expulsion

policy known as Title 42 was particularly significant in this respect.

However, for children who were permitted to enter the system and

ordered to appear for proceedings in immigration court, the Biden

administration has largely continued the policies of previous admin-

istrations. Those policies have utterly failed to protect the rights of

children in court.

These failures are all the more striking because they have continued

even as the administration has signaled support for the principle

that children deserve legal representation in immigration court as

a matter of basic fairness. Department of Homeland Security Sec-

retary Mayorkas—the nation’s foremost immigration enforcement

official—has repeatedly stated that he does not believe children can

receive fair removal hearings without legal representation, even as

prosecutors under his purview have proceeded with thousands of

such hearings and obtained thousands of removal orders against

unrepresented children through those grossly unfair processes.

The administration’s policies toward children in immigration court

have far-reaching impacts. In the first five months of Fiscal Year 2022,

almost one third of all new cases in immigration court involved chil-

dren, including tens of thousands of children under the age of five.1

Some of these children are “unaccompanied” because they arrived

1 TRAC, One-Third of New Immigration Court Cases

Are Children; One in Eight Are 0-4 Years of Age

(Mar. 17, 2022), https://trac.syr.edu/immigration/

reports/681/.

NO FAIR DAY: THE BIDEN ADMINISTRATION’S TREATMENT OF CHILDREN IN IMMIGRATION COURT 3

alone, while others are in “consolidated proceedings” with their fami-

lies. The immigration system, and the Biden administration, has failed

both. Many of these children proceeded without counsel, and a huge

number of children have been ordered removed for failure to appear.

We explain why these two policies—the imposition of in absentia

removal orders against unrepresented children and the failure to

provide counsel—are unlawful, and we provide recommendations

for how the Biden administration can remedy this crisis.

. . . .

It should be obvious that immigration court proceedings are far too

complex for children to navigate without legal representation. As

Secretary Mayorkas acknowledged earlier this year, “a nine-year-old

child cannot navigate the immigration system.”44 Attorneys General

under the Obama administration made similar statements, as had

the government’s own expert in litigation challenging the failure to

provide counsel for children several years ago.45 Prior to that conces-

sion, one supervisory immigration judge was extensively ridiculed

for stating his view that he could teach three- and four-year-olds to

understand immigration law and represent themselves in immi-

gration court.46 Yet, despite the obvious absurdity of that view, the

Biden administration’s immigration courts—like the immigration

courts of all prior administrations—recognize no age below which

children cannot proceed without a lawyer in court.

. . . .

CONCLUSION

Despite taking some strong symbolic and practical steps in its early

days, the Biden administration has failed children in immigration

court under its watch. In the last three years, Immigration Judges

have issued removal orders against tens of thousands of children in

violation of basic due process principles. Though the administration

has not enforced most of those removal orders, nothing will stop a

future administration from doing so without ever providing those

children a fair day in court.

But there is time to reverse course. We urge the administration to

adopt the concrete recommendations laid out in this paper: prohibit

the issuance of in absentia removal orders against unrepresented

children; terminate the Dedicated Docket; and ensure legal represen-

tation for all children in removal proceedings. To do so would make

real the Biden administration’s promise of a fair and humane immi-

gration system for children.

******************

Read the complete report at the above link.

This should be a fixable problem! Instead, Congress and the Administration are fixated on making things worse for children and other legal asylum seekers at the border. What’s happening in the Senate now is neither a “negotiation” nor does it have much to do with “national security.”

It’s mostly about bullying the most vulnerable while diverting attention from the failure of all three branches of Government to address human migration and human rights in an rational, lawful, and constructive manner.

Artificially inflating and manipulating “in absentia” order statistics has been a long-time practice of EOIR under Administrations of both parties. The DOJ and EOIR use their own unfair procedures to paint a false picture of individuals evading the system.

In reality, statistics show that the overwhelming majority of those able to secure representation and therefore understand the “system” want fair merits decisions on their asylum applications.

But, as many who, unlike Garland and his minions, have actually practiced in the dysfunctional Immigration Courts know, getting a timely merits hearing on meritorious, already-prepared cases can be “mission impossible” in a system wedded to “Aimless Docket Reshuffling” and lacking in dynamic due-process-focused expert leadership!

Additionally, “notice” problems at EOIR are endemic — now reaching the Supremes for the third time (after being blown out on the first two trips) in a “supreme dereliction of duty” by Garland’s DOJ. Haphazard notice procedures and endless delays are also major contributors to the abuse of children in Immigraton Court.

🇺🇸 Due Process Forever!

PWS

12-18-23

⚖️🗽 THERE ARE WAYS TO HARMONIZE & HARNESS THE REALITY & HUGE POSITIVE POTENTIAL OF GLOBAL HUMAN MIGRATION— They Are Neither “Simple” Nor “Immediate” — But “Deterrence Only” Definitely Is NOT Among Them!☠️

Amy E. Pope
Director General
International Organization for Migration
PHOTO: IOM

Filippo Grandi
United Nations High Commissioner for Refugees
PHOTO: UNHCR

From Time Magazine:

https://time.com/6344740/global-immigration-system-reform/

IDEAS

BY AMY E. POPE AND FILIPPO GRANDIDECEMBER 11, 2023 11:43 AM EST

Pope is the Director General (DG) of the International Organization for Migration; Grandi is the UN High Commissioner for Refugees

F

rom the sands of the Sahel to the waters of the Mediterranean, from the wilderness of the Darien in Central America to the Bay of Bengal, millions of refugees and migrants journey along routes that are synonymous with desperation, exploitation and lost lives. As the heads of the two U.N. agencies that protect and support people on the move, we believe this is one of the great global challenges of our time.

The loudest political response has been to claim that only tougher action can resolve it. Most recently, a number European states have announced plans to “offshore” or simply deport asylum seekers and/or make conditions around immigration and asylum more hostile.

Such plans are increasingly in vogue. They are also wrong. They overly concentrate on deterrence, control and law enforcement, and disregard the fundamental right to seek asylum. This approach is ineffective and irresponsible, leaving people stranded or compelling them to take even greater risks.

We do not want to understate the scale of the challenge created by today’s population movements. But to meet it, bigger thinking and bolder leadership are needed. The right strategy would tackle every stage of the journey, through a comprehensive and route-based approach of engagement. So, what should such a strategy look like?

First, we need to address the issues that compel people to leave home in the first place. Resolving conflicts, improving security, reinforcing human rights, providing sustained and reliable financial support to boost growth and resilience—all address the root causes of displacement and migration by investing in people’s futures. Failing to make these investments and cutting development aid are false economies.

Nonetheless, millions of people have no choice but to leave home—protracted conflicts, widescale rights abuses, intolerable poverty, and the devastating effects of climate change are just some of the causes. Yet the same point applies: offer hope and opportunity and people will take it.

. . . .

Two ingredients are essential for our proposals to succeed: cooperation and real responsibility-sharing between governments, even in these divisive times; and attention to every part of the journey. An approach focused mainly on deterrence will fail—indeed, it is already failing.

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Border Death — During this Christmas season, GOP Nativists in Congress, their Dem enablers, and the Biden Administration are “debating” how many forced migrant men, women, and children should be killed, tortured, maimed, imprisoned, separated, or otherwise irreparably damaged at the U.S. Border to secure more bombs and weapons for foreign wars! This is a monument for those who have died attempting to cross the US-Mexican border. Each coffin represents a year and the number of dead. It is a protest against the effects of Operation Guardian. Taken at the Tijuana-San Diego border.
Tomas Castelazo
To comply with the use and licensing terms of this image, the following text must must be included with the image when published in any medium, failure to do so constitutes a violation of the licensing terms and copyright infringement: © Tomas Castelazo, www.tomascastelazo.com / Wikimedia Commons / CC BY-SA 3.0

Read the complete article at the link!

“Offer hope and opportunity and people will take it!” That’s essentially what the Supremes said 35 years ago in the landmark decision INS v. Cardoza-Fonseca requiring a suitably generous interpretation and application of the international “refugee” definition that also governs asylum.

Over the next several decades, slow but noticeable progress was made toward “realizing the full promise of Cardoza.” At one point, largely as a result of some Court of Appeals interventions, and a few positive BIA precedents granting asylum in the mid to late 1990’s, the “combined protection granted rate” for asylum, withholding, and CAT by EOIR, the primary precedent-setter and adjudicator of asylum law in the Executive Branch, exceeded 60% for those actually able to get to merits hearings in the somewhat haphazard system.

However, over the past several Administrations most of that progress has been reversed, sometimes intentionally, other times negligently. The dysfunction, mounting backlogs, poor precedents, lack of asylum expertise, endless “any reason to deny gimmicks,” and the dreaded “Aimless Docket Reshuffling” have made a mockery of justice for asylum seekers at EOIR. It has also generated a tidal wave of failure and mindless attempts by the USG to evade the rule of law and their responsibilities to fairly adjudicate asylum claims that goes far beyond our borders.

None of the nativist, restrictionist, proposals now being discussed in the Senate would help this situation! Indeed, they would undoubtedly make everything worse in the long run! They will also compromise our national security and enrich and embolden human smugglers and cartels. Nativist deterrence is definitely a “lose-lose proposition” even if many U.S. politicos are unwilling or unable to admit that!

In many ways, the “head in the sand” approach of prosperous nations to human migration reminds me of their past attempts to deny or ignore the effect of climate change — something that is directly related to forced migration and not adequately addressed by the post WW II refugee framework.

I was heartened to see among the recommendations in this article:

But this is not just about policies and strategies. It means engaging more closely with the people in mixed movements, such as offering practical and legal advice on accessing protection, to guidance on applying for third-country options. Such a chain of engagement might require new, bespoke models of collaboration but, if done strategically, would address a range of situations.\

This supports the recent proposal that Retired Wisconsin Judge Thomas Lister and I published on “Courtside” for the creation of a volunteer group of “Judges Without Borders” (“JW/OB”). https://immigrationcourtside.com/2023/12/13/%F0%9F%91%A9%F0%9F%8F%BD%E2%9A%96%EF%B8%8F%F0%9F%91%A8%F0%9F%8F%BB%E2%9A%96%EF%B8%8F-%E2%9A%96%EF%B8%8F%F0%9F%97%BDjudges-without-borders-an-innovative-op/

Volunteer retired judges from various State and Federal systems could potentially assist the USG and NGOs by advance screening applicants, inside and outside the U.S., for asylum with an eye toward helping individuals make good choices and directing those unable to meet the current refugee and asylum criteria to humane alternatives. It’s exactly the type of new, creative, “model of collaboration” (and cost efficiency) that the authors recommend!

Given the current state of the world, with active wars on several fronts, and many corrupt and/or repressive governments, it’s highly likely that forced migration will continue to increase in the foreseeable future. That makes it essential that developed nations work with each other and humanitarian experts on viable, durable solutions that recognize the complexity, the opportunities, and the inevitability of human migration.

On Meet the Press today, Sen. Lindsey Graham (R-SC) spouted virtually every “border myth” in the book, without much effective pushback from moderator Kristen Welker. In particular, Welker continued her practice of not featuring any experts who actually work with forced migrants at the border. Meanwhile, Graham was unwilling to condemn Trump’s Hitlerian language about immigrants “poisoning the blood” despite numerous opportunities by Welker for him to do so.

What Graham didn’t do, and Welker didn’t press him on, was establish any connection between eliminating asylum and either reducing terrorist threats or fighting drug smuggling which has been shown time and again to have little or nothing to do with individuals struggling to get appointments through “CBP One” or turning themselves in to CBP upon entry to submit to asylum screening.

Additionally, Graham continued to repeat, without evidence (other than one lame anecdote), the nativist claim that almost nobody coming to the border has a legitimate fear of return. That contradicts almost all reports from those who actually work with forced migrants at the border and elsewhere. It’s also remarkable because the vast majority of those who have been allowed into the U.S. in the past year have not had an opportunity to document and present their claims in the fair merits hearing required by law. Yet the “border debate” remains largely one-sided and reality free!

That’s not to minimize the failure of the Biden Administration to heed expert advice and make major administrative, personnel, and expertise changes in the asylum adjudication system and the Immigration Courts on “Day One.” Nor does it excuse their failure to set up an organized, mutually beneficial, system for resettling those screened the into the country away from border points of entry.

Again, the absence of coherent rational discussion of asylum adjudication by experts by Meet the Press and other so-called “mainstream media” is both telling and disturbing. Certainly, internationally-recognized experts like Filippo Grande and Amy Pope must be available to Welker. Why don’t we ever hear from them?

Demand that Congress and the Biden Administration stop the toxic nonsense of “trading” the lives and rights of forced migrants for bombs and weapons to fight foreign wars. It’s time to get serious about developing immigration and refugee policies that operate in the “real world” of human migration, eschew expensive, cruel, proven to fail “deterrence only,” and give primacy to the humanity and rights of migrants and the opportunities they present for our world’s future!

🇺🇸 Due Process Forever!

PWS

12-16-23

😢 CRIES IN THE WILDERNESS: The Voices Of Experience & Reasonableness Are Being Drowned Out By Nativism, Butt-Covering, & Imagined Political Expediency In The One-Sided “Border Debate” Taking Place In The Senate!

Caitlyn Yates Fellow Strauss Center for International Law & Security PHOTO: Strauss Center — Caitlyn Yates
Fellow
Strauss Center for International Law & Security
PHOTO: Strauss Center

This podcast from Melissa Del Bosque of The Border Chronicle and Caitlyn Yates, who actually works with migrants in the Darien Gap, gives real life perspective on the humanitarian crisis and all the reasons why more cruelty, punishment, and deadly deterrence isn’t going to solve the flow of forced migrants. But, unhappily, policy makers aren’t interested in the voices of those who actually have experience with forced migrants, nor are they interested in learning from the forced migrants themselves — a logical — if constantly ignored — starting point for making sound policy decisions!

https://substack.com/app-link/post?publication_id=373432&post_id=139696609&utm_source=post-email-title&utm_campaign=email-post-title&isFreemail=true&r=1se78m&token=eyJ1c2VyX2lkIjoxMDgxNTc5OTAsInBvc3RfaWQiOjEzOTY5NjYwOSwiaWF0IjoxNzAyMzkzMzIwLCJleHAiOjE3MDQ5ODUzMjAsImlzcyI6InB1Yi0zNzM0MzIiLCJzdWIiOiJwb3N0LXJlYWN0aW9uIn0.CSjTGVDSTEoVPMU3vd7l-vjE2t6LYzS6bfkSQ-qMOcU

******************

In the Wilderness — Migration and human rights experts have excelled in court and academia. Yet, they have been consigned to wander the political wilderness, their wisdom, expertise, and real world solutions are routinely ignored or mindlessly rejected by both political parties.
Colmar – Unterlinden Museum – The Isenheim Altarpiece 1512-16 by Matthias Grünewald (ca 1470-1528) – Visit of Saint Anthony the Great to Saint Paul the Hermit in the Wilderness
Creative Commons

Four “takeaways” on what a consensus on migration should be:

Human migration is real;
Forced migration is largely beyond the unilateral control of any one nation;
Deterrence alone won’t stop migration;
More legal pathways for migration are necessary.

We’re a long way from that needed consensus right now!

🇺🇸 Due Process Forever!

PWS

12-16-23

🗽 THIS BUDD’S FOR YOU! — Ex-Agent, Author, Border Expert Warns Dems Against Walking Into GOP Nativists’ “Border Trap!” — Once Again!🤯

FROM X:

Post

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Conversation

Charles Kuck reposted

I

Jenn Budd

@BuddJenn

A robust asylum system is essential to national security. A closed border is as dangerous as an open border. If you close the asylum system, they will just cross illegally. Republicans need the border out of control. This is a trap!

*****************

That’s it in a nutshell! Reality and practicality have nothing to do with it. It’s about the GOP creating chaos and fanning hate! Unhappily, Dems fall for it — every time! That’s why American democracy is on the ropes!

The Dems have ready access to the greatest “treasure trove” of real life expertise and truth about the border in history. Yet, they routinely ignore it and let themselves be “hoodwinked” by GOP nativists peddling lies, hate, and myths. It’s seriously undermining our democracy while squandering human lives and potential!

There’s deep irony in “national security” being disingenuously parroted by a party lead by a demagogue who encouraged actual insurrection against the U.S. Government! Yet Dems and the “mainstream media” fall for it! Gimmie a break!

🇺🇸 Due Process Forever!

PWS

12-15-23

🤯 “DESPERATE PEOPLE DO DESPERATE THINGS!”

Rebecca Santana
Homeland Security Reporter
Associated Press
PHOTO: AP

https://www.theitem.com/stories/biden-and-congress-consiering-big-changes-on-immigration,408794

REBECCA SANTANA

Associated Press

WASHINGTON (AP) – President Joe Biden is taking a more active role in Senate negotiations about changes to the immigration system that Republicans are demanding in exchange for providing money to Ukraine in its fight against Russia and Israel for the war with Hamas.

The Democratic president has said he is willing to make “significant compromises on the border” as Republicans block the wartime aid in Congress. The White House is expected to get more involved in talks this week as the impasse over changes to border policy has deepened and the money remaining for Ukraine has dwindled.

Republican Sen. James Lankford of Oklahoma, who is leading the negotiations, pointed to the surge of people entering the U.S. from Mexico and said “it is literally spiraling out of control.”

But many immigration advocates, including some Democrats, say some of the changes being proposed would gut protections for people who desperately need help and would not really ease the chaos at the border.

Connecticut Sen. Chris Murphy, the top Democratic bargainer, said the White House would take a more active role in the talks. But he also panned Republican policy demands so far as “unreasonable.”

. . . .

Critics say the problem is that most people do not end up getting asylum when their case finally makes it to immigration court. But they say migrants know that if they claim asylum, they essentially will be allowed to stay in America for years.

“People aren’t necessarily coming to apply for asylum as much to access that asylum adjudication process,” said Andrew Arthur, a former immigration court judge and fellow at the Center for Immigration Studies, which advocates for less immigration in the U.S.

Some of what lawmakers are discussing would raise the bar that migrants need to meet during that initial credible fear interview. Those who do not meet it would be sent home.

But Paul Schmidt, a retired immigration court judge who blogs about immigration court issues, said the credible fear interview was never intended to be so tough. Migrants are doing the interview soon after arriving at the border from an often arduous and traumatizing journey, he said. Schmidt said the interview is more of an “initial screening” to weed out those with frivolous asylum claims.

Schmidt also questioned the argument that most migrants fail their final asylum screening. He said some immigration judges apply overly restrictive standards and that the system is so backlogged that it is hard to know exactly what the most recent and reliable statistics are.

. . . .

WHAT MIGHT THESE CHANGES DO?

Much of the disagreement over these proposed changes comes down to whether people think deterrence works.

Arthur, the former immigration court judge, thinks it does. He said changes to the credible fear asylum standards and restrictions on the use of humanitarian parole would be a “game changer.” He said it would be a “costly endeavor” as the government would have to detain and deport many more migrants than today. But, he argued, eventually the numbers of people arriving would drop.

But others, like Schmidt, the retired immigration court judge, say migrants are so desperate, they will come anyway and make dangerous journeys to evade Border Patrol.

“Desperate people do desperate things,” he said.

*****************************

Ignoring both the powerful forces that drive human migration and folks who actually work with migrants at the border and in foreign countries seems like a totally insane way to “debate policy.” But, then, whoever said this “nativist-driven debate” on enhanced cruelty, dismantling the rule of law, and de-humanization is rational?

You can read Rebecca’s full article, with an “accessible” explanation of what’s at stake and what’s being proposed at the above link.

🇺🇸 Due Process Forever!

PWS

12-14-23

👩🏽‍⚖️👨🏻‍⚖️ ⚖️🗽”JUDGES WITHOUT BORDERS” — An Innovative Open Letter Proposal For Budget-Friendly Assistance With The Humanitarian Situation At & Beyond Our Southern Border By Retired Judges Thomas E. Lister & Paul Wickham Schmidt!

Hon. Thomas Lister
Retired Jackson County (WI) Circuit Judge

Hon. Paul Wickham Schmidt
U.S. Immigration Judge (Ret.)
Adjunct Professor, Georgetown Law
Blogger, immigrationcourtside.com

We graduated from UW Law School in 1973. As retired judges we have been searching for ways in which individuals like us and our many retired judicial colleagues can use our unique legal skill sets to aid in addressing the humanitarian crisis at our borders. In that spirit, we propose to Congress, the Administration, and other decision-makers involved, the creation of “Judges Without Borders.” First, here is a brief summary of our respective backgrounds.

Paul Wickham Schmidt served as a U.S. Immigration Judge, U.S. Department of Justice (“DOJ”) in Arlington, Virginia (2003-16), after being an Appellate Judge of the Board of Immigration, Appeals (1995-2003), where he was Board Chair for six years. He authored the landmark decision: Matter of Kasinga, extending asylum protection to victims of female genital mutilation. He previously served as Acting General Counsel and Deputy General Counsel (1979-87) of the former Immigration and Naturalization Service, and was instrumental in developing the rules and procedures to implement the Immigration Reform and Control Act of 1986, as well as establishing the modern Immigration Court system in the DOJ. His experience also includes being a partner in two major law firms, Jones Day and Fragomen.

Paul is retired, and now is an Adjunct Professor of Law at Georgetown University Law Center. He has authored numerous articles on immigration law and speaks, lectures, and writes in forums throughout the nation on contemporary immigration issues, due process, and U.S. Immigration Court reform. He publishes the blog immigrationcourtside.com and is a member of the Round Table of Former Immigration Judges and BIA Appellate Judges.

I am a former district attorney, county corporation counsel, trial lawyer, and circuit court judge. While serving as a judge, I formed a collaborative justice coordinating council, and received one of only two national multi-year grants designed to create family treatment courts, addressing not only the needs of drug and alcohol dependent individuals, but their families as well through a holistic approach and diversion programming. I worked closely with the Ho-Chunk Nation to help create its Healing to Wellness Courts. Upon retiring, I led a successful litigation effort to stop the proliferation of frac-sand mining in Wisconsin’s Driftless region, utilizing anticipatory private-nuisance doctrine.

For the last several years, we have sought to find ways to help those who legally seek to gain asylum in the United States. Initially we proposed an initiative whereby retired State, and Federal judges would volunteer to attend a multi-week program to become trained in the laws and procedures governing eligibility screening; then potentially, aiding the overwhelmed corps of Immigration Judges by pre-filtering hundreds of thousands of potentially meritorious asylum claims, while at the same time advising those who likely will not qualify, that they probably will, potentially after many months of detention, be deported to their native country, or a safer alternative destination. We contemplated that retired judges could also be available to take some of the routine procedural and adjudicative burdens off of Immigration Judges so that they could concentrate on adjudications such as asylum, requiring their specialized training and experience.

Most of those seeking asylum at our border have experienced some type of trauma in their home countries. However, because the international refugee definition that the U.S. has adopted covers only harm resulting from race, religion, nationality, political opinion, or membership in a particular social group, and the evidentiary burdens can be daunting, some of those who have been harmed or reasonably fear harm will not be able to meet the legal criteria for asylum in the U.S. In such cases, individuals will have risked their, and perhaps their family’s lives, and their limited resources on a dangerous journey to the U.S. border, that can only end in rejection, perhaps detention, prosecution, separation from family, and ultimately expulsion to their home countries or to potentially dangerous conditions in Mexico.

To better and more constructively address this untenable and inhumane situation, we now propose “Judges Without Borders.” This group would consist of trained volunteers with prior judicial experience who are willing to dedicate some time to the task of going into venues south of our border, as well as resettlement centers in the U.S., to meet, consider and screen those claiming a right to asylum, to assess their likelihood of success, and to address and advise them accordingly, humanely, and realistically, regarding what most probably lies ahead for them. We also see an opportunity to be of service to overwhelmed NGOs and legal services providers in the United States in screening potential asylum cases and advising those unlikely to succeed on what, if any, other options they might have in individual circumstances.

Ideally, our review panels would consist of three judges: one Democrat, one Republican and one Independent for a balanced, realistic, and comprehensive approach. Interviews would be held in venues that are outside the applicant’s native country, to protect potential asylum seekers from retribution. The information gathered would be confidential, so that it could not be used against the potential applicants.

We believe that by using the skills of retired jurists with high level practical experience in assessing legal claims, Judges Without Borders, could go a long way to relieving the swamped immigration system, providing accurate helpful information about the realities of the U.S. asylum and immigration systems so that individuals can make informed life decisions, reducing the flow of immigrants dangerously entering or attempting to enter the U.S. with false hopes, and correcting misinformation about the U.S. system provided by human smugglers and other illegal operatives who exploit the predicament of desperate individuals. Volunteer judges, who generally are on pensions or some other type of pre-existing retirement income, would serve without pay, receiving only travel food, and lodging expenses.

If our elected leaders really want to solve the humanitarian crisis at the border, we believe that they ultimately must consider other practical and potentially expansive reforms to deal more realistically and humanely with the realities of 21st century migration, and to constructively reform our currently dysfunctional asylum adjudication system and our legal immigration systems which were developed to deal with past realities in worldwide migration that might no longer apply. However, in the interim, we believe that everything possible, including some new, creative, budget-friendly approaches, must be used to alleviate the humanitarian crisis and unnecessary suffering (even death) at our borders.

We recognize that practical solutions will not be easy as there are many corporate interests profiting from private immigration detention, wall-building, river barriers, and all sorts of so-called “border, security technology,” much of which is expensive, yet ultimately ineffective in dealing with the root causes of human migration. The money saved would be better spent on honoring our nation’s solemn pledge to support our allies, with whatever it takes, for as long as it takes, while also honoring our legal and humanitarian commitments to refugees. We must remain a nation that demonstrates humanitarian leadership and can be trusted by the world, to keep our promises, particularly to some of the world’s most vulnerable humans.

Thank you for considering our proposal. We stand ready to help in any way possible.

Respectfully submitted,

Hon. (Ret.) Thomas E. Lister, J.D.

Hon. Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

*********************

Five decades after our graduation from U.W. Law, we’re still thinking “outside the box” of ways to improve our legal system. Retired American judges represent a societal investment in high-level decision-making and problem-solving! Why not keep using those talents in creative ways after regular service on the bench ends?

Unlike ramping up permanent, or even temporary, government hiring, volunteer retired judges, from all systems, are a flexible, low-cost, high-return potential resource that can be quickly deployed and adjusted, redeployed, or “un-deployed” as emergencies arise and are resolved!

We’d love to hear your views on our proposal!

🇺🇸 Due Process Forever!

PWS

12-13-23

🤯 MISFIRES: MORE MIXED MOTIVE MISTAKES BY BIA — “Expert” Tribunal Continues Underperforming In Life Or Death Asylum Cases! — Sebastian-Sebastian v. Garland (6th Cir.) — Biden Administration’s “Solution” To Systemic Undergranting Of Asylum & Resulting EOIR Backlogs: Throw Victims Of “Unduly Restrictive Adjudication” Under The Bus! 🚌🤮

Four Horsemen — BIA Asylum Panel In Action — After three years of ignoring experts on how to fix asylum and the border, the Biden Administration appears ready to join GOP nativists in throwing vulnerable legal asylum seekers and their supporters “under the bus.” Cartels and criminal smugglers undoubtedly are looking forward to “filling the gap” left by the demise of the legal asylum system! They will be “the only game in town’” for those seeking life-saving refuge! There is no record of increased cruelty and suspension of the rule of law “solving” migration flows, although an increase in exploitation and death of migrants seems inevitable. Perhaps, that’s just “collateral damage” to U.S. politicos.
Albrecht Dürer, Public domain, via Wikimedia Commons

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0267p-06.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca6-on-mixed-motive-sebastian-sebastian-v-garland

[T]he Board found that Sebastian-Sebastian failed to demonstrate a nexus between her particular social groups and the harm she faced. In its denial of CAT protection, the Board found that Sebastian-Sebastian failed to demonstrate that she is more likely than not to be tortured if removed to Guatemala. On appeal, Sebastian-Sebastian argues that the Board’s conclusions were not supported by substantial evidence on the record as a whole. Because the Board’s failure to make necessary findings as to the asylum and withholding of removal claims is erroneous, but its conclusion as to Sebastian-Sebastian’s CAT claim is supported by substantial evidence, we GRANT Sebastian-Sebastian’s petition for review in part, DENY in part, VACATE the Board’s denial of her application for asylum and withholding of removal, and REMAND to the Board for reconsideration consistent with our opinion.”

[Hats off to Jaime B. Naini and Ashley Robinson! N.B., the motion for stay of removal was denied. I have a call in to the attorneys to find out if she was removed…]

Ashley Robinson ESQ

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

*****************

Congrats to Jaime and Ashley!

Rather than looking for ways to restrict or eliminate asylum, Congress and the Administration should be concerned about quality-control and expertise reforms in asylum adjudication, including a long-overdue independent Article I Immigration Court! Once again, the BIA violates Circuit precedent to deny asylum.

The answer to systemically unfair, (intentionally) unduly restrictive interpretations, and often illegal treatment of asylum seekers by the USG should not be to further punish asylum seekers! It should be fixing the asylum adjudication system to comply with due process, fundamental fairness, best practices, and professionalism!

Casey Carter Swegman
Director of Public Policy at the Tahirih Justice Center
PHOTO: Tahirih Justice Center

Here’s a statement from the Tahirih Justice Center about the disgraceful “negotiations” now taking place in Congress:

The Tahirih Justice Center is outraged by the news that the administration appears willing to play politics with human lives. These attacks on immigrants and people seeking asylum represent not simply a broken promise, but a betrayal and we urge the President and Congress to reverse course.

“I am gravely concerned that, if passed, these policies will further trap and endanger immigrant survivors of gender-based violence.  Selling out asylum seekers and immigrant communities under the guise of ‘border security’ in order to pass a supplemental funding package is absolutely unacceptable,” said Casey Carter Swegman, Director of Public Policy at the Tahirih Justice Center. “And we know the impact of these cruel, deterrence-based policies will land disproportionately on already marginalized immigrants of color. I urge the White House and Congress not to sell out immigrants and asylum seekers for a funding deal.”

Every day, people fleeing persecution – including survivors of gender-based violence – arrive at our border having escaped unspeakable violence. Raising the fear standard, enacting a travel ban, putting a cap on asylum seekers, and expanding expedited removal nationwide (to name just a few proposals that have been floated in recent days) will do nothing to solve the challenges at the southern border and serve only to create more confusion, narrow pathways to humanitarian relief, increase the risk of revictimization and suffering, and punish immigrants seeking safety and a life of dignity.

These kinds of proposals double down on the climate of fear that many immigrants in this country already face on a day-to-day basis and will disproportionately impact Black, Brown and Indigenous immigrant communities.Immigrants should not be met with hostile and unmanageable policies that violate their humanity as well as their legal rights. We can and must do better.

These are “negotiations” in which those whose legal rights and humanity are being “compromised” (that is, tossed away) have no voice at the table as politicos ponder what will best suit their own interests.

😎Due Process Forever!

PWS

12-12-23

🇺🇸 Due Process Forever!

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Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸 Due Process Forever!

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From the Chicago Sun Times:

🇺🇸 Due Process Forever!

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Todd Miller in The Border Chronicles:

40 And the King will answer them, ‘Truly, I say to you, as you did it to one of the least of these my brethren, you did it to me.’

Matthew 25:40

🇺🇸 Due Process Forever!

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Maria Daniela Prieshof writes:

🇺🇸 Due Process Forever!

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Empowering Immigrant Entrepreneurs: A Blueprint for Success

By Diane Harrison

Special to immigrationcourtside.com

Dec. 20, 2023

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Here’s the latest report from TRAC documenting how former Federal Judge Merrick Garland’s failure to fulfill his most important duty — reforming and fixing the U.S. Immigration Courts, has built backlog at record paces and undermined our democracy:

Here’s the “action plan” that’s been publicly available since July 2023 — “Rethinking The U.S. Immigration Court System” — yet largely, and disastrously ignored by Garland, his lieutenants, and the Biden Administration:

Bring in these experts:

🇺🇸 Due Process Forever!

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A new “white paper” investigation from UCLA Center for Immigration Law and Policy documents shocking abuses already being inflicted on children Immigration Court even as Congress and the Administration look for more ways to strip asylum seekers of legal rights and human dignity:

🇺🇸 Due Process Forever!

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From Time Magazine:

🇺🇸 Due Process Forever!

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FROM X:

🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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Dan Kowalski reports for LexisNexis Immigration Community:

😎Due Process Forever!

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Empowering Immigrant Entrepreneurs:
A Blueprint for Success