🇺🇸 REMEMBERING THE CARTER YEARS

The Carter Years

By Paul Wickham Schmidt

President Jimmy Carter
Jimmy Carter
1924-2024
39th President of the U.S.
Official White House Photo
Public Realm

President With An “Afterlife”

Jimmy Carter (1924-2024), the 39th President of the United States is an anomaly among modern U.S. Presidents. He is probably better known and more widely respected for his post-Presidency achievements and work than for his accomplishments during his single four-year term (1977-81). 

After losing the 1980 election to Ronald Reagan in a landslide, Carter devoted himself to humanitarian work on a national and international scale. He founded the Carter Institute. He and his wife Rosalynn (1927-2023) were famous for their never-ending work personally of building housing for communities in need for Habitat for Humanity. 

Carter wasn’t just a “mouthpiece,” promoter, or financial supporter. He and Rosalynn could often be found with their sleeves rolled up digging, pounding, sawing, and painting with the rest of the crews. Individuals in the District of Colombia fondly remember him working side-by-side with community members to build housing that they still proudly reside in!

Carter is generally regarded as one of the most intelligent and fundamentally decent Presidents. However, his term was largely viewed as unsuccessful at the time. Economic woes, an energy shortage, the Iranian hostage crisis, tensions with the Soviet Union, and the Cuban boatlift overshadowed his meaningful achievements such as the Camp David Peace Accords and creation of the Department of Education.

As a career civil servant, I worked for the Carter Administration in several senior positions at the “Legacy” Immigration and Naturalization Service (“INS”). Although I never met the President in person, I certainly saw his facsimile signature on many official documents. 

One of the first of these was a Presidential Pardon for Vietnam Era Draft Evaders that he issued shortly after taking office. As the then legislative and regulations expert in the INS Office of General Counsel, I was charged with figuring out the practical effect of the somewhat vague language of the pardon on cases of former U.S. citizens who had renounced their citizenship abroad, primarily in Canada, during the war years.

Human Rights Focus

The Carter Administration was the only one in my lifetime that made human rights around the world a key focus of policy. While it was a great and noble idea in theory, it often clashed with the political and international realities of governing during the waning stages of the Cold War. 

From my “deep in the bureaucracy” perspective, the Carter Administration also too often exhibited a “tone deafness” when it came to dealing with the “old line Democrats” and Committee Chairs who then controlled Congress. For example, I was asked to draft a comprehensive legalization and employer sanctions immigration bill, but instructed not to consult with any Committee staff. Needless to say, the final product went over like a lead balloon. As I remember, the Dem Committee Chairs balked at even introducing the bill and it got a “DOA reception” from both Dems and the GOP. 

Leonel Castillo
Leonel Castillo
1939-2013
Commissioner of Immigration (1977-1979)
USCIS Archives
Public Realm

INS Commissioner Leonel Castillo: The Fall of a Rising Star

It probably didn’t help that Carter’s Commissioner of Immigration was Leonel Castillo. Immediately prior to appointment, Castillo was the City Controller of Houston, the first Hispanic-American to hold the job, and was considered a “rising young star” in Texas Democratic politics. (Yes, there was such an animal in those days.)

Unfortunately, it wasn’t a very good fit. Perhaps, it was simply “mission impossible” for an Hispanic leader then. Leonel was mostly interested in getting out, pressing some flesh, and the “big picture” of immigration. But, many of INS’s problems and challenges involved “nitty gritty” technical issues, fending off interference from a small army of “whiz kid” special assistants at the DOJ, and dealing with the always prickly Congressional Committees who controlled agency funding. 

This wasn’t Leonel’s strong suit. He surrounded himself with his own group of young special assistants, executive assistants, and analysts, many from Texas, who didn’t “mesh well” with the career bureaucrats in the INS Central Office, the largely “good old boy” field management structure, the egos in the DOJ, and the “Kings of the Hill.” 

Leonel never established rapport with Sen. Ted Kennedy, then the most recognizable Democrat in Congress and, beginning in 1978, Chair of the powerful Senate Judiciary Committee, which exercised INS oversight. Kennedy later went on to unsuccessfully challenge President Carter for the 1980 Democratic Presidential nomination. Nor did he have a good working relationship with powerful Chair Peter Rodino (D-NJ) of the House Judiciary Committee, who had been deeply involved in INS issues for many years.

Additionally, Leonel had a rocky relationship with the formidable Rep. Elizabeth Holtzmann (D-NY), the Chair of the House Immigration Subcommittee. Holtzmann was “all over INS” for what she deemed to be inadequate efforts to locate, investigate, and denaturalize former Nazi war criminals living in the U.S. who had been erroneously admitted as refugees following World War II. 

At the time, I was responsible for drafting Leonel’s congressional testimony and accompanying him to congressional hearings. As he was struggling through one contentious hearing with Chairperson Holtzmann, Leonel inadvertently knocked over the water pitcher, soaking the witness table. Holtzmann reached under her dais, grabbed a towel, and unceremoniously threw it at the hapless Commissioner with an implicit admonishment to “clean up his mess.” Committee staff later quipped that perhaps it was time for INS to “throw in the towel.” 

Needless to say, that wasn’t one of the “high points” in the Carter Administration’s dealings with Congress. Chairperson Holtzmann eventually succeeded in wresting control of all Nazi immigration investigations and prosecutions away from the INS and vesting it in a newly-created Office of Special Investigations (“OSI”) in the DOJ’s Criminal Division. 

While my “political bosses” tended to view this as a “bureaucratic defeat,” I told them it was anything but. Not having to deal with the Chairperson on Nazi investigations on a daily basis turned out to be a huge “plus” for INS, particularly the OGC, where the “Nazi Unit” was then located. It was well worth the “loss” of the half-dozen positions to the Criminal Division, which then greatly expanded the OSI. 

David Crosland
Hon. David Crosland
American Jurist, Senior Executive, Lawyer, Teacher
1937 – 2022
PHOTO: Alabama Law

General Counsel/Acting Commissioner David Crosland

At the end of the Ford Administration, INS General Counsel Sam Bernsen was serving in the position as a “rehired annuitant.” That meant technically he had already retired and was continuing to serve on a special arrangement. The new Administration “finalized” Sam’s retirement and appointed a new General Counsel, David Crosland, a civil rights attorney from Atlanta, Georgia with ties to the “Georgia Mafia” that surrounded Carter and his first Attorney General, former Fifth Circuit Judge Griffin Bell. 

Dave had once worked in the Civil Rights Division of the DOJ under then AG Ramsey Clark. After Carter left office, Dave remained in the immigration field for the rest of his life. Indeed, we were both Immigration Judges at the Arlington Immigration Court, and he was still on the bench at the Baltimore Immigration Court at the time of his death in 2022.

Shortly after Dave’s appointment as General Counsel, the then Deputy General Counsel, Ralph Farb was elevated to the Board of Immigration Appeals (“BIA”). I became Dave Crosland’s Deputy.

Sam Bernsen, however, landed on his feet. Although he had 40+ years of Government service, he was relatively young, perhaps 57, having begun his career as a messenger at Ellis Island in his late teens. After a short period of private practice with Larry Latif (who later was my law partner at Jones Day), he became a name and managing partner of the Washington, D.C. Office of Fragomen, Del Rey, and Bernsen, a leading immigration “boutique.” I later succeeded him in that position in 1992. Immigration is a small world!

There was an old anecdote (perhaps apocryphal) that Judge Bell once said that at INS, “Castillo represented the White House, Deputy Commissioner Mario Noto represented House Judiciary Chair Peter Rodino, Special Assistant to the Commissioner David Dixon represented Senate Judiciary Chair Jim Eastland, and Crosland represents me!”

Ben Civiletti Succeeds Judge Griffin Bell as AG

Judge Bell eventually gave way to Attorney General Ben Civiletti in 1979. Among the many “Special Assistants” working for AG Civiletti was young Harvard Law grad, Merrick Garland. His meteoric career trajectory occasionally crossed paths with my role at INS. I remember him from those days as a smart, serious, ambitious, earnest guy. 

Civilewti & Staff
Attorney General Ben Civiletti (1979-81) with top DOJ staff including current AG Merrick Garland (5th from left)
PHOTO: NT Times

Also in 1979, Leonel Castillo resigned as Commissioner and returned to Houston to run for Mayor. But, his tenure at INS proved no help. He finished third in that race and was unsuccessful in three additional bids for local elective office. INS proved to be a political “career killer” rather than a “career enhancer.” 

Meanwhile, no successor to Castillo as Commissioner was ever nominated and confirmed during the Carter Administration. My “boss,” David Crosland became the Acting Commissioner of INS, and I became the Acting General Counsel, a situation that continued for the balance of the Carter Administration. 

For me, the Carter Administration was one of the formative periods of my legal career. At 31, I became the top legal official at INS which involved running the nationwide legal program, advising the Acting Commissioner and other senior managers at INS, and also being the “point person” for Immigration litigation, legislation, and other issues with the Attorney General, the Solicitor General, and heads of other DOJ divisions and offices. 

I remember once returning to my office after a long day of meetings to be handed a stack of yellow message slips (no voice mail or e-mail in those days) by our receptionist. One thing that I always did at the OGC and that served me well thereafter was to faithfully return all phone calls and answer all my personal correspondence. 

The receptionist told me in an excited voice that  “Mr. Letti’s” office had been trying to get ahold of me all day, and that I had to return that call first! I puzzled over who “Mr. Letti” was, because it didn’t ring a bell, offhand. “You know Mr. Letti,” said the receptionist, “Mr. Benson Letti, (as she had written on the message slip), said it was very important.” Finally, the light bulb went off, “Ah, you mean Ben Civiletti, the Attorney General,” said I. Yes, said the receptionist, “THAT Mr. Letti.” 

Lyudmila Vlasova
Russian ballerina Lyudmila Vlasova was one of the more interesting cases I worked on.
PICTURE: Wikipedia

During 1979, I was involved in a notable incident involving Lyudmila Vlasova , a star Russian ballerina, in a plane halted on the tarmac at JFK. The issue was whether she was leaving the U.S. of her own volition, as her husband, Aleksandr Godunov, also a dancer with the Bolshoi Ballet, had defected and sought asylum in the U.S. (In a strange time warp, in those days a Dem Administration was actually more concerned about individuals being denied their right to seek asylum here than in “deterring” legal asylum seekers from “darkening our doors!”)

Part of the “Plan B” hatched for determining her situation was to designate AG Civiletti as an “Immigration Officer” authorized to detain and examine foreign nationals. I duly drafted up a legal document so designating the A.G. Fortunately, the situation was resolved (she voluntarily departed the U.S.) without resorting to Plan B. Several weeks later, I received the “appointment document” back by mail with a handwritten note by AG Civiletti that said something like: “With thanks and great relief it wasn’t needed!” The 1985 movie “Flight 222” was loosely based upon this incident.

Four Issues That Changed U.S. Immigration: The Refugee Act of 1980; The Cuban Boatlift; The Iranian Hostage Crisis; The INS Attorney Reorganization

Four issues stand out for me from the Carter years. The first was the enactment of the Refugee of 1980. It was the first codification and legal affirmation of our International obligations to refugees and asylum seekers under the United Nations Convention and 1967 Protocol Relating to the Status of Refugees. 

It gave me a chance to work closely with two of my contemporaries in the Administration who later went on to become “intellectual giants” in the field of human rights. One was David A. Martin, then Special Assistant to Patt Derian, the Assistant Secretary for Human Rights and Humanitarian Affairs at the State Department. David went on to become a famous Professor at UVA Law, co-author of leading textbooks, the General Counsel of INS in the Clinton Administration, and Principal Deputy General Counsel of DHS during the Obama Administration (then DHS Secretary Janet Napolitano was his student at UVA Law).

The other was Alex Aleinikoff, then an attorney in the DOJ Office of Legal Counsel. Alex also went on to become a professor, co-author (with David Martin) of textbooks, an INS Senior Executive, Dean of Georgetown Law, and Deputy UN High Commissioner for Refugees.

I also worked closely with Committee staff in Congress, particularly the late Jerry Tinker who was Senator Kennedy’s staffer on the Senate Judiciary Committee. I can still remember getting a phone call one evening from Jerry saying “Schmidt, I’m in a jam. Could you draft me some legislative history for the Refugee Bill and send it over. You know what the Senator wants.” It was sort of a “hinky” request, given the state of relations between the Carter White House and Senator Kennedy. But, I figured it would be “career preserving” to give Jerry a  hand, without mentioning it to anyone else. 

A second major event, unfortunately coinciding the the enactment of the Refugee Act of 1980, was the so-called Mariel Boatlift. INS hadn’t had time to fully implement that Act before we were confronted with another in a long line of “refugee crises.” This one involved Castro’s unexpectedly and temporarily “opening” some ports in Cuba and a flotilla of small boats going from Florida to pick up friends and relatives. 

Cuban Boatlift
The 1980 Cuban Boat lift was a crisis for the Carter Administration that has had lasting impact on U.s. immigration policy, not necessarily for the better.
Official USG Photo
Public Realm

We had to call upon FEMA — who famously introduced themselves as the “Masters of Disaster” — and the Orange Bowl became the initial “processing center” for new arrivals. The vast majority of those who came were quickly screened and released into the community. They eventually were able to get green cards, without applying under the Refugee Act, under the Cuban Adjustment Act of 1966.

However, there was a proportionately small, yet highly visible, group of individuals who had been released from Cuban jails, obviously without documentation of the crimes for which they had been imprisoned. They were processed for possible exclusion and deportation, which invoked the asylum and withholding of removal provisions of the new Refugee Act.

Since INS had no suitable housing for “high risk” criminals, we had to enter agreements with the Bureau of Prisons to reopen some “dormant, high-security facilities” — like the Atlanta Penitentiary and McNeil Island Penitentiary in the State of Washington. Additionally, we were allowed to use military bases such as Fort Chaffee, Arkansas; Fort McCoy, Wisconsin; Fort Drum, New York, and Fort Indiantown Gap, Pennsylvania to detain those suspected of criminal activity who required Immigration Court hearings. The then “Boy Governor” of Arkansas, Bill Clinton, blamed well-publicized escapes from Fort Chaffee as a factor leading to his re-election defeat.

We also lacked sufficient Immigration Judges in those locations to hear the cases. That required an emergency effort to assemble and train a corps of “Temporary Immigration Judges” from the ranks of active and retired Administrative Law Judges and DOJ Attorneys.

The Cuban Boatlift got the Refugee Act of 1980 off to a rocky start. Many of the initial “precedents” on asylum issued by the Board of Immigration Appeals (“BIA”) involved Cuban applicants with criminal records, not the most sympathetic group. That, combined with some sensationalist dramatic portrayals of criminals among the arrivals, such as the movie “Scarface,” starring Al Pacino, hardened attitudes towards refugees generally, while also producing some relatively restrictive initial interpretations of the Act. 

Additionally, the Boatlift ushered in an era of mass long-term immigration detention. While the Boatlift eventually subsided, the phenomenon of large-scale immigration detention has continued to grow over the years. It has become a controversial “staple” of U.S. immigration enforcement and “deterrence.” It has been used, in some form or another, by all Administrations since Carter.

The “Carter experience” also hardened views toward large-scale migration in the Executive Branch, as both politicos and bureaucrats vowed “never again!” During the Reagan Administration, the new and oft-criticized device of “high seas interdiction” was used to stop further vessels from Cuba and Haiti from even reaching the U.S. and invoking the Refugee Act protections. Some individuals were brought to the U.S. after preliminary screening onboard Coast Guard vessels. But, most were returned without hearings (Haitians) or sent to the U.S. base at Guantanamo Bay, Cuba (Cubans).  

A third pivotal event, which also played a role in the demise of President Carter, was the so-called “Iranian Hostage Crisis.” Most of the “action and drama” took place in and around the U.S. Embassy in Tehran. But, there was also a “domestic component.”

Then Attorney General Griffin Bell was shocked to learn that the INS at that time had no national database on the number, location, and status of Iranian students studying in the U.S. This led to new efforts and regulations to require all such Iranian students to “register” with the INS and imposed penalties, including deportation, on those who failed to do so or committed crimes in the U.S. — even if those crimes in and of themselves were not specified as grounds of deportation.

While the frustration and outrage of Administration officials was quite understandable, the whole exercise was was somewhat like “kicking the cat after a bad day at the office.” Almost all the Iranians studying in the U.S. at that time were supporters of the deposed Shah’s U.S.-backed government. The “radicals” who were holding hostages in the Embassy weren’t anywhere near the U.S. 

Most of the enforcement efforts against Iranians in the U.S. became embroiled in never-ending litigation. However, the concept of “special registrations” for groups of non-immigrants, particularly from Middle Eastern countries, became part of the “immigration regulation toolbox.” It was repeated after “9-11” and is also one of the antecedents to Trump’s so-called “Muslim ban.”

Finally, my fourth main event  from the Carter Administration was “phase one” of the INS attorney reorganization, which created the Chief Legal Officer for each INS district in the U.S. Started under General Counsel/Acting Commissioner Dave Crosland, the second phase of the reorganization was completed during the Reagan Administration under the leadership of General Counsel Maurice C. “Iron Mike” Inman, Jr. Along the way, Mike changed the name from “Chief Legal Officer” to “District Counsel.” They were the forerunners of today’s “full service” Offices of Chief Counsel at ICE, an integral part of DHS’s operations.

Prior to Crosland and me, the INS Trial Attorneys, although selected by and under the “program management” of the General Counsel, worked for the District Directors, their clients, and were supervised and evaluated by them. Additionally, an even larger group of INS attorneys, Naturalization Examiners, also worked for the District Director, although they were selected and under the program direction of the Assistant Commissioner for Naturalization in the Central Office.

Using a plan developed by then Regional Counsel for the West, Bill Odencrantz, we reorganized the program along the DOJ’s traditional “attorney-client” model to place assignment, supervision, and evaluation of all INS attorneys under the General Counsel. This also gave the General Counsel, in consultation with the Assistant Commissioner, authority to use legal resources in any district “across programs” when needs dictated. 

As you might expect, this move was met with fierce opposition from District Directors, Regional Commissioners, and some naturalization attorneys. As the “point person” for the reorganization, I became the recipient of some of the most vehement and vocal objections.

During “phase two,” completed during Mike Inman’s tenure, the attorneys were moved out of the naturalization program into the Offices of District Counsel and replaced with non-attorney examiners in the naturalization program, which, in turn, merged with the overall adjudications program. 

This is much the way these programs operate today within DHS, with the legal program being part of ICE and the naturalization function part of USCIS. It would have been hard to create the DHS, with all its legal issues, litigation, and complexities, without the “groundwork” being laid during the Carter Administration, and later the Reagan Administration, for a modern, quasi-independent legal program reporting to the ICE Principal Legal Advisor.   

Those Were The Days, My Friend

Looking back, I appreciate the seriousness and integrity with which President Carter and those around him took governing. (I also got frequent calls from Vice President Mondale’s office about immigration issues.) I will always remember the Carter years as a time of both excitement and professional growth. I started as one of a handful of attorneys on the staff of the INS General Counsel and ended up running the INS’s nationwide legal program and being the agency’s top lawyer, albeit in an acting capacity while Dave Crosland was the Acting Commissioner. 

I appreciated and learned from the opportunities that came my way. I particularly enjoyed helping to select, form, organize, and work with the many outstanding attorneys, agents, and staff at INS and DOJ, a number of whom remained my friends and sometimes became colleagues again as my career continued into the Reagan Administration and eventually, beyond INS. The “team approach” to the law and problem-solving that I developed and honed during the Carter years stayed with me and became key to the rest of my career.

(12-29-24)

 
 

🇺🇸🗽🤯 HISTORY: 100 YEARS AGO, AMERICA TRIED, BUT ULTIMATELY FAILED, TO STAY “WHITE & PROTESTANT” WITH THE 1924 IMMIGRATION ACT — Many Were Hurt Or Died From This Bias In The Interim — Now Trump & The Nativist Right Want To Revive One Of The Worst Eras In U.S. History — Will Indifference & Ignorance From Dems & So-Called “Centrists” Let Them Get Away With Turning Back The Clock? ⏰☠️🤮 — Two Renowned Authors Offer A View Of A Biased, Deadly, & Ultimately Highly Counterproductive Past That Still Poisons Our Politics & Threatens Our Future As A Beacon Of Hope! — PLUS: Kowalski & Chase Take On The “False Scholars” 🤮 Who Disingenuously Attempt To “Glorify” Xenophobia & Racism!🤯

1924 Act
The 1924 Immigration Act vilified, dehumanized, and barred many of those immigrants who have made America great, like Italian Americans being demeaned in this cartoon. Yet, some descendants of those unfairly targeted appear oblivious to the mistakes of the past and willing to inflict the same immoral lies, harm, and suffering on today’s migrants.
IMAGE: Public Realm
Eduardo Porter
Eduardo Porter
Columnist and Editorial Board Member
Washington Post
PHOTO: WashPost

Eduardo Porter writes in WashPost:

https://www.washingtonpost.com/opinions/interactive/2024/immigration-history-race-quota-progress/

“I think that we have sufficient stock in America now for us to shut the door.”

That sounds like Donald Trump, right? Maybe on one of his campaign stops? It certainly fits the mood of the country. This year, immigration became voters’ “most important problem” in Gallup polling for the first time since Central Americans flocked to the border in 2019. More than half of Americans perceive immigrants crossing the border illegally as a “critical threat.”

Yet the sentiment expressed above is almost exactly 100 years old. It was uttered by Sen. Ellison DuRant Smith, a South Carolina Democrat, on April 9, 1924. And it helped set the stage for a historic change in U.S. immigration law, which imposed strict national quotas for newcomers that would shape the United States’ ethnic makeup for decades to come.

. . . .

The renewed backlash against immigration has little to offer the American project, though. Closing the door to new Americans would be hardly desirable, a blow to one of the nation’s greatest sources of dynamism. Raw data confirms how immigrants are adding to the nation’s economic growth, even while helping keep a lid on inflation.

Anyway, that horse left the stable. The United States is full of immigrants from, in Trump’s memorable words, “s—hole countries.” The project to set this in reverse is a fool’s errand. The 1924 Johnson-Reed immigration law might have succeeded in curtailing immigration. But the restrictions did not hold. From Presidents Johnson to Trump, efforts to circle the wagons around some ancestral White American identity failed.

We are extremely lucky it did. Contra Sen. Ellison DuRant Smith’s 100-year old prescriptions, the nation owes what greatness it has to the many different women and men it has drawn from around the world to build their futures. This requires a different conversation — one that doesn’t feature mass expulsions and concentration camps but focuses on constructing a new shared American identity that fits everyone, including the many more immigrants who will arrive from the Global South for years to come.

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Gordon F. Sander
Gordon F. Sander
Journalist and Historian
PHOTO: www.gordonsander.com

Gordon F. Sander, journalist and historian, also writes in WashPost, perhaps somewhat less optimistically, but with the same historical truth in the face of current political lies and gross misrepresentations:

https://www.washingtonpost.com/history/2024/05/24/johnson-reed-act-immigration-quotas-trump/

. . . .

Johnson and Reed were in a triumphant mood on the eve of their bill’s enactment. “America of the melting pot will no longer be necessary,” Reed wrote in the Times. He remarked on the new law’s impact: “It will mean a more homogenous nation, more self-reliant, more independent and more closely knit by common properties and common faith.”

The law immediately had its intended effect. In 1921, more than 200,000 Italians arrived at Ellis Island. In 1925, following the bill’s enactment, barely 6,000 Italians were permitted entry.

But there were less intended consequences, too, including on U.S. foreign relations. Although Reed insisted there was nothing personal about the act’s exclusion of Japanese people, the Japanese government took strong exception, leading to an increase in tensions between the two countries. There were riots in Tokyo. The road to Pearl Harbor was laid.

During the 1930s, after the eugenics-driven Nazis seized control of Germany, the quotas established by the act helped close the door to European Jews and others fleeing fascism.

At the same time, the law also inspired a small but determined group of opponents led by Rep. Emanuel Celler (D-N.Y.), who were committed to overturning it. Celler’s half-century-long campaign finally paid off in 1965 at the Statue of Liberty when, as Celler looked on, President Lyndon B. Johnson signed the Immigration and Nationality Act, which ended national origin quotas.

But with anti-immigration sentiment on the rise and quotas once again on the table, it’s clear that a century after its enactment, the ghost of Johnson-Reed isn’t completely gone.

Gordon F. Sander is a journalist and historian based in Riga, Latvia. He is the author of “The Frank Family That Survived: A 20th Century Odyssey” and other books

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Many thanks to my friend and immigration maven Deb Sanders for alerting me to the Sander article. I strongly urge everyone to read both pieces at the links above.

Perhaps the most poignant comment I’ve received about these articles is from American educator, expert, author, and “practical scholar” Susan Gzesh:

And because of the 1924 Act, my grandparents lost dozens of their siblings, parents, aunts, uncles, nieces, and nephews to the Holocaust in the 1940s because Eastern European Jewish immigration to the US had been cut off. They would have been capable of sponsoring more family to come to the US in the late 1920s and 30s, but there was no quota for them.

I have no words to describe my feelings about so-called experts who would praise the 1924 Act. I know that Asian Americans must feel similarly to my sentiments.

Well said, Susan!

 

Susan Gzesh
Susan Gzesh
American scholar, educator, expert, author
PHOTO: U. Of Chicago

I’ll leave it at that, for you to ponder the next time you hear Trump, DeSantis, Abbott, and the like fear-monger about the bogus “invasion,” spout “replacement theory,” and extoll the virtues of extralegal cruelties and dehumanization inflicted upon “the other” — typically the most vulnerable who are  seeking our legal protection and appealing to our senses of justice and human dignity! And, also you can consider this when the so called “mainstream media” pander to these lies by uncritically presenting them as “the other side,” thereby echoing “alternative facts!”

It’s also worth remembering this when you hear Biden, Harris, Schumer, Murphy, and other weak-kneed Dem politicos who should know better adopt Trumpist White Nationalist proposals and falsely present them as “realistic compromises” — as opposed to what they really are —  tragic acts of political and moral cowardice!

Eventually, as both of the above articles point out, America largely persevered and prospered over its demons of racism, anti-Catholicism, and anti-immigrant nationalism. But, it would be wrong to view this “long arc” analysis as “zeroing out” the sins and horrors of our past. 

Susan Gzesh’s relatives died, some horribly and painfully, before their time. That can’t be changed by future progress. Nor can the children they might have had or the achievements they never got to make to our nation and the world be resurrected. 

As Susan mentions, the 1924 Act also reinforced long-standing racism and xenophobia against Asian Americans that led to the irreversible harm inflicted by the internment of Japanese American citizens, continuing Chinese Exclusion, and a host of state laws targeting the Asian population and making their lives miserable. Belated recognition of the wrongfulness and immorality of these reprehensible laws and actions does nothing for their past victims.

Many Irish, Italian, and other Catholics and their cherished institutions died, lost property, or were permanently displaced by widespread anti-Catholic riots brought on and fanned by the very type of biased and ignorant thinking that undergirded Johnson-Reed. They can’t be brought back to life and their property restored just by a “magic wave of the historical wand.” 

U.S. citizens of Mexican-American heritage were deported and dispossessed, some from property their ancestors had owned long before there was even a United States. Apologizing to their descendants and acknowledging our mistakes as a nation won’t eliminate the injustices done them — ones that they took to their graves!

Despite the “lessons of the Holocaust,” America continues to struggle with anti-Semitism and anti-Islamic phobias and indifference to human suffering beyond our borders.

And, of course, the poisonous adverse impacts of slavery on our nation and our African-American compatriots continue to haunt and influence us despite disingenuous claims to the contrary.

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

My friends immigration experts Dan Kowalski and Hon. Jeffrey Chase also had some “choice words” for the “false scholars” who extol the fabricated “benefits” of White Nationalism and racism embodied in “laws” that contravened the very meaning of “with liberty and justice for all” — something to reflect upon this Memorial Day. See https://dankowalski.substack.com/p/true-colors.

That prompted this response from Susan:

Susan Gzesh

11 hrs ago

Thank you, Dan! In memory of my Gzesh, Wolfson, Kronenberg, and Kissilove relatives who were victims of the Holocaust – after their U.S.-based relatives failed to get visas for them.

I also recently weighed in on the horrors of the 1924 Act in a recent article by Felipe De La Hoz, published in The New Republic: https://immigrationcourtside.com/2024/05/02/🏴☠%EF%B8%8F🤯🤮-a-century-of-progress-arrested-the-1924-immigration-act-rears-its-ugly-nativist-head-again-felipe-de-la-hoz-in-the-new-repub/.

Heed the lessons of history, enshrine tolerance, honor diversity, and “improve on past performance!”  We have a choice as to whether or not to repeat the mistakes of the past — to regress to a darker age or move forward to a brighter future for all!  Make the right one!

 

🇺🇸 Due Process Forever!

PWS

05-27-24

🏴‍☠️NO ACCOUNTABILITY: ONE YEAR AFTER PUBLICLY INSTIGATING A FAILED COUP, TRUMP CONTINUES TO OPENLY PLOT TO OVERTHROW DEMOCRACY, AS NEO-FASCIST GOP & ITS TOADY POLITICOS LINE UP BEHIND THE “BIG LIE!” — THE GOP, & THOSE WHO SUPPORT & ENABLE IT, HAS ACTUALLY BECOME THE BIGGEST THREAT TO THE FUTURE OF OUR REPUBLIC!🤮👎🏽🏴‍☠️

S.V. Date
S.V. Date
Senior White House Correspondent
HuffPost
PHOTO: HuffPost

https://www.huffpost.com/entry/trump-coup-attempt_n_61c2733fe4b04b42ab6602a2

SV Date on HuffPost:

WASHINGTON — What if you attempted a coup but people were unwilling to wrap their heads around what you had done?

A year after Jan. 6, 2021, that is the peculiar situation in which Donald Trump finds himself. Instead of being carted off in handcuffs for inciting an insurrection against the United States, or even just being banished from federal office for life by the Senate, the former president instead remains the leader of one of the two major political parties and is openly considering another run for the White House in 2024.

. . . .

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Cas Mudde
Cas Mudde
US Columnist
The Guardian

https://www.theguardian.com/commentisfree/2022/jan/05/capitol-attack-january-6-democracy-america-trump?CMP=Share_iOSApp_Other

Cas Mudde on The Guardian:

The government is finally taking the threat of far-right militia groups seriously. But the larger threat are the Republican legislators who continue to recklessly undermine democracy

One year ago, he was frantically barricading the doors to the House gallery to keep out the violent mob. Today, he calls the insurrection a “bold-faced lie” and likens the event to “a normal tourist visit”. The story of Andrew Clyde, who represents part of my – heavily gerrymandered – liberal college town in the House of Representatives, is the story of the Republican party in 2021. It shows a party that had the opportunity to break with the anti-democratic course under Donald Trump, but was too weak in ideology and leadership to do so, thereby presenting a fundamental threat to US democracy in 2022 and beyond.

The risk of a coup in the next US election is greater now than it ever was under Trump | Laurence H Tribe

Clyde is illustrative of another ongoing development, the slow but steady takeover of the Republican party by new, and often relatively young, Trump supporters. In 2015, when his massive gun store on the outskirts of town was still flying the old flag of Georgia, which includes the Confederate flag, he was a lone, open supporter of then-presidential candidate Trump, with several large pro-Trump and anti-“fake news” signs adorning his gun store. Five years later, Clyde was elected to the House of Representatives as part of a wave of Trump-supporting novices, mostly replacing Republicans who had supported President Trump more strategically than ideologically.

With his 180-degree turn about the 6 January insurrection, Clyde is back in line with the majority of the Republican base, as a recent UMass poll shows. After initial shock, and broad condemnation, Republicans have embraced the people who stormed the Capitol last year, primarily referring to the event as a “protest” (80%) and to the insurrectionists as “protesters” (62%), while blaming the Democratic party (30%), the Capitol police (23%), and the inevitable antifa (20%) for what happened. Unsurprisingly, the vast majority of Republicans (75%) believe the country should “move on” from 6 January, rather than learn from it. And although most don’t care either way, one-third of Republicans say they are more likely to vote for a candidate who refuses to denounce the insurrection.

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The increased anti-democratic threat of the Republican party can also be seen in the tidal wave of voting restrictions proposed and passed in 2021. The Brennan Center for Justice counted a stunning 440 bills “with provisions that restrict voting access” introduced across all but one of the 50 US states, the highest number since the Center started tracking them 10 years ago. A total of 34 such laws were passed in 19 different states last year, and 88 bills in nine states are being carried over to the 2022 legislative term. Worryingly, Trump-backed Republicans who claim the 2020 election was stolen are running for secretary of state in various places where Trump unsuccessfully challenged the results.

. . . .

At the same time, the Republican party has become increasingly united and naked in its extremism, which denies both the anti-democratic character of the 6 January attack and the legitimacy of Biden’s presidency, and is passing an unprecedented number of voter restriction bills in preparation for the 2022 midterms and 2024 presidential elections. As long as the White House mainly focuses on fighting “domestic violent extremism”, and largely ignores or minimizes the much more lethal threat to US democracy posed by non-violent extremists, the US will continue to move closer and closer to an authoritarian future.

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You can read both articles in full at the above links.

If you are counting on AG Merrick Garland to “lead the charge” on establishing accountability, your optimism might be tempered by his own failure to “clean house” at DOJ and in particular by his failure to reform his wholly-owned Immigration Court system that was front and center in assisting and carrying out the Trump/Miller White Nationalist assault on the rule of law, primarily targeting individuals of color and the “world’s most vulnerable” seeking justice in our system.

🇺🇸Due Process Forever!

PWS

01-06-22

 

⚖️EOIR GUIDANCE ON ADMINISTRATIVE CLOSING — GOOD, BUT COULD HAVE BETTER! —Why Is A Non-Judge Director (“Senior Court Administrator”) Issuing Non-Binding “Guidance” That Should Have Been In BIA Precedents?

UY

https://www.justice.gov/eoir/book/file/1450351/download

PURPOSE:

OOD DM 22-03

Issued: Nov. 22, 2021 Effective: Immediately

ADMINISTRATIVE CLOSURE

Provide guidance to adjudicators on administrative closure in light of Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021)

David L. Neal, Director 8 C.F.R. § 1003.0(b)

On July 15, 2021, the Attorney General issued a precedential decision in Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021). In that decision, the Attorney General restored the authority of immigration judges and the Board of Immigration Appeals (Board) to administratively close cases. This memorandum discusses the practical implications of the Attorney General’s decision, particularly in light of the Executive Office for Immigration Review’s (EOIR) pending caseload.

II. Administrative Closure to Date

Administrative closure “is a docket management tool that is used to temporarily pause removal proceedings.” Matter of W-Y-U-, 27 I&N Dec. 17, 18 (BIA 2017). An immigration judge’s or appellate immigration judge’s administrative closure of a case “temporarily remove[s] [the] case from [the] Immigration Judge’s active calendar or from the Board’s docket.” Matter of Avetisyan, 25 I&N Dec. 688, 692 (BIA 2012). Administrative closure came into widespread use by EOIR adjudicators in the 1980s. Cases have been administratively closed for a variety of reasons over the years, and the Board has issued several decisions addressing when administrative closure is appropriate. The Board’s two most recent such decisions are Matter of Avetisyan and Matter of W-Y-U-, issued in 2012 and 2017, respectively.

In 2018, Attorney General Sessions issued Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). He held that, with limited exceptions, “immigration judges and the Board do not have the general authority” to administratively close cases. Matter of Castro-Tum, 27 I&N Dec. at 272. The Third, Fourth, Sixth, and Seventh Circuits subsequently ruled on challenges to Matter of Castro- Tum. A circuit split emerged, with the Third, Fourth, and Seventh Circuits holding that

OWNER:

AUTHORITY: CANCELLATION: None

I. Introduction

1

adjudicators have the general authority to administratively close cases,1 but with the Sixth Circuit holding that adjudicators have the authority to administratively close cases only in limited circumstances.2 In 2020, the Department of Justice (Department) promulgated a final rule that essentially codified Matter of Castro-Tum, restricting EOIR adjudicators’ ability to administratively close cases. See “Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure,” 85 Fed. Reg. 81588 (Dec. 16, 2020). However, this rule has been preliminarily enjoined nationwide. See Centro Legal de La Raza v. Exec. Office for Immigration Review, 524 F.Supp.3d 919 (N.D. Cal. Mar. 10, 2021).

In Matter of Cruz-Valdez, the Attorney General noted that Matter of Castro-Tum “departed from long-standing practice” by prohibiting administrative closure in the vast majority of circumstances. Matter of Cruz-Valdez, 28 I&N Dec. at 329. He also noted that the Department is “engaged in a reconsideration” of the enjoined 2020 rule. Id. Given these factors, the Attorney General, in Matter of Cruz-Valdez, “overrule[d] [Matter of Castro-Tum] in its entirety,” and he “restore[d] administrative closure” pending the current rulemaking. Id. He specified that, in deciding whether to administratively close cases pending the rulemaking, “except when a court of appeals has held otherwise, immigration judges and the Board should apply the standard for administrative closure set out in Avetisyan and W-Y-U-.” Id.

III. Administrative Closure after Matter of Cruz-Valdez

With administrative closure restored, EOIR adjudicators have the authority, under the Board’s case law, to administratively close a wide variety of cases. Going forward, pending the promulgation of a regulation addressing administrative closure, adjudicators must evaluate requests to administratively close cases under Matter of Avetisyan and Matter of W-Y-U-, as well under as the Board’s case law predating those decisions, to the extent that case law is consistent with those decisions. Adjudicators should accordingly familiarize themselves with Matter of Avetisyan, Matter of W-Y-U-, and the Board’s prior case law addressing administrative closure.

The restoration of administrative closure will assist EOIR adjudicators in managing their dockets given EOIR’s caseload. In Matter of Cruz-Valdez, the Attorney General recognized that administrative closure has in the past “served to facilitate the exercise of prosecutorial discretion, allowing government counsel to request that certain low-priority cases be removed from immigration judges’ active calendars or the Board’s docket, thereby allowing adjudicators to focus on higher-priority cases.” Matter of Cruz-Valdez, 28 I&N Dec. at 327. EOIR has finite resources and a daunting caseload. Given this reality, it is important that adjudicators focus on two categories of cases: those in which the Department of Homeland Security (DHS) deems the respondent to be an immigration enforcement priority,3 and those in which the respondent

1 See Arcos Sanchez v. Att’y Gen., 997 F.3d 113, 121-24 (3d Cir. 2021); Meza Morales v. Barr, 973 F.3d 656, 667 (7th Cir. 2020); Romero v. Barr, 937 F.3d 282, 292-94 (4th Cir. 2019).

2 Specifically, the Sixth Circuit initially held that the regulations do not delegate to immigration judges or the Board the general authority to administratively close cases. Hernandez-Serrano v. Barr, 981 F.3d 459, 466 (6th Cir. 2020) . But the Sixth Circuit later held that the regulations provide adjudicators “the authority for administrative closure” to allow respondents to apply with U.S. Citizenship and Immigration Services for provisional unlawful presence waivers. Garcia-DeLeon v. Garland, 999 F.3d 986, 991 (6th Cir. 2021).

3 Effective November 29, 2021, DHS’s immigration enforcement priorities are noncitizens DHS deems to pose risks to national security, public safety, and border security. See Memorandum from Alejandro N. Mayorkas, Secretary,

2

desires a full adjudication of his or her claim or claims. Being able to administratively close low priority cases will help adjudicators do this.

Under case law, where DHS requests that a case be administratively closed because a respondent is not an immigration enforcement priority, and the respondent does not object, the request should generally be granted and the case administratively closed. See Matter of Yewondwosen, 21 I&N Dec. 1025, 1026 (BIA 1997) (stating that the parties’ “agreement on an issue or proper course of action should, in most instances, be determinative”); Matter of Cruz-Valdez, 28 I&N Dec. at 327 (recognizing the role of administrative closure in “facilitat[ing] the exercise of prosecutorial discretion”).

Administrative closure is appropriate in many other situations as well. For example, it can be appropriate to administratively close a case to allow a respondent to file an application or petition with an agency other than EOIR. See Matter of Avetisyan, 25 I&N Dec. at 696 (identifying “the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings” as a factor for adjudicators “to weigh” in evaluating requests for administrative closure); 8 C.F.R. § 212.7(e)(4)(iii) (permitting a respondent in removal proceedings to file a Form I-601A, Application for Provisional Unlawful Presence Waiver, with U.S. Citizenship and Immigration Services where the “proceedings are administratively closed and have not yet been recalendared at the time of filing the application”). It can also be appropriate to administratively close a case while an agency adjudicates a previously filed application or petition, or, if a visa petition has been approved, while waiting for the visa to become available. See Matter of Avetisyan, 25 I&N Dec. at 696. It is generally appropriate to administratively close a case where a respondent has been granted temporary protected status. See Matter of Sosa Ventura, 25 I&N Dec. 391, 396 (BIA 2010). This is only a partial list; administrative closure can be appropriate in other situations not mentioned here. See Matter of Avetisyan, 25 I&N Dec. at 696 (stating that each request for administrative closure “must be evaluated under the totality of the circumstances of the particular case”).

Where a respondent requests administrative closure, whether in a scenario described above or another scenario where administrative closure is appropriate, and DHS does not object, the request should generally be granted and the case administratively closed. See Matter of Yewondwosen, 21 I&N Dec. at 1026. Where a request for administrative closure is opposed, “the primary consideration . . . is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.” Matter of W-Y-U-, 27 I&N Dec. at 20. But adjudicators should bear in mind that “neither party has ‘absolute veto power over administrative closure requests.’” Id. at n. 5 (quoting Matter of Avetisyan, 25 I&N Dec. at 692).

Where at all possible, issues involving administrative closure should be resolved in advance of individual calendar hearings and not at hearings. Immigration judges are therefore encouraged to send scheduling orders to parties well before the hearing takes place, inquiring of DHS whether the respondent is an immigration enforcement priority, and otherwise soliciting the parties’ positions on administrative closure and other issues related to prosecutorial discretion. Where

Guidelines for the Enforcement of Civil Immigration Law (Sept. 30, 2021), available at https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf.

3

such issues have not been resolved in advance of an individual calendar hearing, the immigration judge should ask DHS counsel on the record at the beginning of the hearing whether the respondent is an immigration enforcement priority. Where DHS counsel responds that the respondent is not a priority, the immigration judge should further ask whether DHS intends to exercise some form of prosecutorial discretion in the case. As part of this colloquy, the 4 immigration judge should ask whether the parties want the case administratively closed.

IV. Conclusion

Administrative closure is a longstanding, and valuable, tool for EOIR adjudicators. As the Attorney General noted in Matter of Cruz-Valdez, the Department is currently engaged in rulemaking that will address adjudicators’ authority to administratively close cases. Pending that rulemaking, adjudicators have the authority under Matter of Cruz-Valdez to administratively close many cases before them when warranted under Board case law. Adjudicators should familiarize themselves with the situations in which administrative closure is appropriate, and adjudicators should be proactive in inquiring whether parties wish for cases to be 5 administratively closed. If you have any questions, please contact your supervisor.

4 There is one potential caveat to the guidance and instructions in this section. As noted above, the Attorney General stated that, pending the promulgation of a regulation addressing administrative closure, immigration judges and the Board should apply the Board’s case law “except when a court of appeals has held otherwise.” Matter of Cruz- Valdez, 28 I&N Dec. at 329. For cases arising in the Sixth Circuit, adjudicators must determine to what extent administrative closure is permitted given that court’s case law, and they must handle issues involving administrative closure accordingly. See Garcia-DeLeon, 999 F.3d 986; Hernandez-Serrano, 981 F.3d 459.

5 This memorandum does not create any legal rights or benefits for either party, and it does not mandate that a particular motion for administrative closure be granted or denied. In all cases, immigration judges and appellate immigration judges must exercise their independent judgment and discretion in adjudicating motions for administrative closure consistent with the law. See 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10(b).

4

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

WHAT SHOULD HAVE HAPPENED: Garland should have appointed the “Chen-Markowitz BIA” and empowered them to aggressively clean up the backlog, using administrative closing among others tools (such as referral to USCIS and more favorable precedents requiring the granting of relief in meritorious cases).

https://immigrationcourtside.com/2021/02/04/its-not-rocket-science-%f0%9f%9a%80-greg-chen-professor-peter-markowitz-can-cut-the-immigration-court-backlog-in-half-immediately-with-no-additional-resources-and/

In a properly functioning quasi-judicial system, this same “guidance” should have come in a series of BIA precedents that would require BIA panels and the Article IIIs to enforce compliance among recalcitrant Immigration Judges. That could be accompanied by unilateral action by the BIA to close “deadwood” cases on the appellate docket. Either party could request re-docketing, with a justification. (Hint: In my BIA career, we closed thousands of cases of this way and I could count on one hand the number of “redocketing” motions we received.) Also, in a better system, the Immigration Judges already would be aggressively taking these “common sense” steps.  Precedents properly applying asylum, withholding, and CAT would be cutting into the largely “manufactured” backlog.

WHAT ACTUALLY HAPPENED: Typical Dem timid approach.

Unless the BIA actually believes in this “guidance” (doubtful, given it’s current “packing” with notorious anti-immigrant judges by Sessions and Barr, unaddressed by Garland) and is willing to enforce it and incorporate it into precedents, it won’t achieve its objective of promoting fairness and efficiency! Nor will it significantly reduce the backlog. 

Perhaps the “rulemaking” referenced in Director Neal’s memo will solve the problem. But, EOIR’s history of completing such rulemaking, particularly in Dem Administrations, has been less than stellar. See, e.g., Gender-Based Asylum Regs (3 Dem Administrations, 0 Regs); Ineffective Assistance of Counsel Regs (2 Dem Administrations, 0 Regs). 

One problem: Dem Administrations often feel compelled to engage in false “dialogue,” look for an unachievable “consensus,” and pay attention to public comments; GOP Administrations simply plow ahead with their preconceived agenda without regard to expert input, public opinion, or empirical data. 

Consequently, although Dems have failed over more than two decades to finalize final gender-based asylum regulations, Stephen Miller was able to publish outrageous final regulations eliminating more than two decades of gender-based case law progress in a few months. Fortunately, those regs were promptly enjoined!

Over the past two decades, the GOP has radically “weaponized” EOIR as an enforcement tool. Dems have pretended not to notice and have squandered at least nine years of basically “unrestricted” opportunities to restore some semblance of due process, sanity, and humanity @ EOIR! As my friend Karen Musalo said in her recent LA Times op-ed, “actions speak louder than words.” 

EOIR’s latest “actions,” while better than nothing, are unnecessarily ineffective.This is supposed to be a “court system,” not a bureaucratic “agency,” run by “policy directives” and a top-heavy, bloated bureaucracy with fancy-titled “supervisors” and superfluous “program managers.”

Until we get an Attorney General who considers migrants to be persons (humans), views immigrant justice as important, understands what a court is, how it operates, and has the guts to install the practical progressive experts who can make it happen, EOIR will continue to be an embarrassment to American justice.

🇺🇸Due Process Forever!

PWS

11-27-21

🏴‍☠️INSIDE A FAILED AND UNJUST SYSTEM: Reuters Report Explains How The Trump Administration Destroyed Due Process, Fundamental Fairness, & Humanity In The U.S. Immigration Courts!

Reade Levinson
Reade Levinson
Reporter, Reuters
Kristina Cooke
Kristina Cooke
Reporter, Reuters
Mica Rosenberg
Mica Rosenberg
National Immigration Reporter, Reuters
Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons

https://www.reuters.com/article/us-usa-immigration-trump-court-special-r/special-report-how-trump-administration-left-indelible-mark-on-u-s-immigration-courts-idUSKBN2B0179

Reade Levinson, Kristina Cooke, & Mica Rosenberg report for Reuters:

(Reuters) – On a rainy September day in 2018, Jeff Sessions, then U.S. attorney general, addressed one of the largest classes of newly hired immigration judges in American history.

“The vast majority of asylum claims are not valid,” he said during a swearing-in ceremony in Falls Church, Virginia, according to his prepared remarks. If judges do their job, he said, “the number of illegal aliens and the number of baseless claims will fall.”

It was a clear message to the incoming class: Most of the immigrants who appear in court do not deserve to remain in the United States.

As U.S. President Joe Biden works to undo many of the restrictive immigration policies enacted by former President Donald Trump, he will confront one of his predecessor’s indelible legacies: the legion of immigration judges Trump’s administration hired.

The administration filled two-thirds of the immigration courts’ 520 lifetime positions with judges who, as a whole, have disproportionately ordered deportation, according to a Reuters analysis of more than 800,000 immigration cases decided over the past 20 years.

Judges hired under Trump ordered immigrants deported in 69% of cases, compared to 58% for judges hired as far back as the administration of President Ronald Reagan. Because hundreds of thousands of immigrants have cases before the court each year, that 11 percentage-point difference translates to tens of thousands more people ordered deported each year. Appeals are rarely successful.

Biden has promised to dramatically expand the courts by doubling the number of immigration judges and other staff. That’s a worthwhile effort, said Stephen Legomsky, a former chief counsel of the U.S. Citizenship and Immigration Services who is now a professor emeritus at Washington University School of Law in St. Louis. “But the challenge is going to be tremendous.”

Although there are no statutory limits on the number of judges who can be hired, expanding the court would be costly and could take years, immigration law experts said.

“The fact that these (Trump-era) judges are already in place inhibits him a great deal,” Legomsky said of Biden.

Stephen Miller, the key architect of Trump’s immigration agenda, told Reuters that the administration had aimed to hire more immigration judges as part of an effort to “create more integrity in the asylum process” and quickly resolve what he termed meritless claims to cut down on a massive backlog.

“Most of the people that are coming unlawfully between ports of entry on the southwest border are not eligible for any recognized form of asylum,” Miller said in an interview. “There should be a very high rejection rate.”

Under U.S. law, immigrants are eligible for asylum only if they can prove they were being persecuted in their home countries on the basis of race, religion, nationality, membership in a particular social group or their political opinions. Miller said many migrants arriving at the border are coming for economic reasons and present fraudulent asylum claims.

Sessions, who as attorney general had the final say in hiring immigration judges, told Reuters that “the problem is not with the Trump judges. The problem was with some of the other judges that seemed to not be able to manage their dockets, or, in many cases, rendered rulings that were not consistent with the law.

The Trump administration’s successors to Sessions, who was forced out in 2018, did not respond to requests for comment.

. . . .

“There has been a significant lack of basic understanding of immigration law and policy with many – not all – but many of the new hires under the Trump administration,” said Susan Roy, an attorney and former immigration judge appointed during the administration of President George W. Bush who has represented immigrants before some new judges.

Reuters spoke with eight other former immigration judges, five of whom served under Trump, who generally echoed her view. Sitting immigration judges are not permitted to speak to the media.

Even for judges with immigration backgrounds, the type of experience they have has been controversial. In 2017, a report commissioned by the Justice Department found a lack of diversity of experience among judges hired, due to an excess of former prosecutors here from Immigration and Customs Enforcement.

. . . .

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Read the rest of the report at the link.

Hon. Sue Roy is a distinguished member of our Round Table of Former Immigration Judges 🛡⚔️ now in private practice representing asylum seekers and other migrants in Immigration Court.

Hon. Charles Honeyman, quoted elsewhere in the article, is also a member of the Round Table who actually was removed from a case for failing to carry out what he believed to be improper instructions from his “supervisors” who were implementing Sessions’s anti-immigrant policies.

Stephen Legomsky is a former USCIS Senior Executive and esteemed retired Professor who generally is acknowledged as one of American’s leading scholar-experts on immigration and human rights.

Judge Dana Leigh Marks, quoted elsewhere in the article, is a former President of the National Association of Immigration Judges who also successfully argued the landmark  Supreme Court  case INS v. Cardoza-Fonseca, which established the generous well-founded fear standard for asylum.

Sessions and Miller are notorious White Nationalist xenophobes who have neither represented asylum seekers nor been Immigration Judges. Their efforts to eradicate international norms and legal protections for vulnerable asylum seekers, and their particular bias against female asylum seekers, have been widely criticized and panned by human rights experts throughout the world, as well as enjoined or overruled by some U.S. Courts. They were architects of the widely condemned child separation policy and the New American Gulag (“NAG”).

EOIR is the failed DOJ agency that houses the dysfunctional Immigration Courts.

🇺🇸🗽⚖️Due Process Forever! 

PWS

03-08-21

 

⚖️🧑🏽‍⚖️SOURCE OF RACIAL TENSION & ENDEMIC INEQUALITY 🤮: U.S. COURTS: Nan Aron Of Alliance For Justice Speaks Out On Why We Need Progressive Judges!

 

Nan Aron
Nan Aron
Founder & President
Alliance for Justice (“AFJ”)

https://www.washingtonpost.com/politics/trump-biden-supreme-court/2020/08/28/0f0a8158-e937-11ea-bc79-834454439a44_story.html

By Seung Min Kim in the WashPost:

. . . .

But Democrats all but ignored the Supreme Court in their four-day convention earlier this month, even after the party spent Trump’s first term reckoning with the consequences of Republicans confirming two justices, including a reliably conservative justice who replaced the court’s swing vote.

The contrast worries liberal activists who see it as further evidence that the Democratic Party isn’t paying enough attention to an area where conservatives have made big inroads in recent years: control of the courts.

“The fact that Democrats spent so little to no time discussing the federal bench failed to take into account that their critically important goals for the future will be challenged in the courts,” said Nan Aron, the president of the liberal judicial advocacy group Alliance for Justice.

She added: “It’s a major misstep, given the fact that these 200 judges will make it very difficult, if not impossible in many cases, for the Democrats to accomplish their worthy goals going forward.”

. . . .

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Read the full article at the link,

Thanks, Nan, for speaking out! I’ve always been astounded by the Dems’ failure to recognize the importance of getting demonstrated advocates for due process, fundamental fairness, human rights, equal justice under law, and best practices on the Federal Bench.

Heck, look at the Dems beyond disastrous and just plain incompetent approach to the Immigration Bench in the Obama Administration — an administrative court controlled entirely by the Attorney General. Can’t blame Mitch and the GOP for:

    • Ridiculously convoluted and entirely unnecessary 2-year hiring process (under former Director Anthony C. Moscato, the Clinton Administration could sometimes do it in a fraction of that time with better, or at least no worse, results);
    • Eschewing progressive judicial candidates, including well-qualified underrepresented groups, with scholarly credentials and practical expertise in immigration, asylum, human rights, and due process in favor of an endless stream of  largely “insider only, don’t rock the boat” picks;
    • Leaving numerous positions unfilled at the end of the Administration for White Nationalist xenophobe Jeff Sessions to fill;
    • Ignoring obvious, achievable management reforms like e-filing!

The Trump Administration is teeming with malicious incompetents, particularly in the Immigration-related agencies. Notwithstanding that, they immediately figured out how to expedite Immigration Judge hiring and to load the bench with some of the worst, most unqualified, and biased so-called “judges” in modern American legal history! 

In other words, Sessions, Whitaker, and Barr shamelessly and rapidly weaponized the Immigration Courts and made them subservient shills and zealots for DHS enforcement and Stephen Miller’s White Supremacist agenda. And feckless Article III Courts, now also stuffed with Trump judges, have, with a few notable exceptions, looked the other way as the slaughter of Constitutional due process and vulnerable humans (including kids) unfolds. You couldn’t write a worse script for the rule of law and future of humanity!

Democrats pretended that the Immigration Courts existed merely to “go along to get along with the policy flavor of the day.” They did not reinforce due process, fundamental fairness, or view the Immigration Bench as a source of expertise, creativity, progressive legal thinking, or creative legal problem solving. The backlogs grew, morale slid (although admittedly not at the breakneck pace under the Trump regime), and the bodies of those who should have been saved but weren’t started to pile up. Simple reforms — try e-filing, for example — were left unaccomplished!

It wasn’t “malicious incompetence” — just good old fashioned “administrative incompetence.” But the latter paved the way for the former to “go on steroids” during the Trump regime. This isn’t just political malpractice and academic debate! Real people have lost their lives, families, or futures because of the Dems’ diddling approach to justice — including America’s largest and perhaps most significant court system over which they had total control!

It’s actually pretty simple: Better judges (from the Supremes to the Immigration Courts) for a better America! And, time for the immigration/human rights community to wake up, join the NDPA, and demand that the Dems do better next time around!

Due Process Forever! Repeating past mistakes, never!

PWS

08-30-20

FELIPE DE LA HOZ @ THE NATION: “The Shadow Court Cementing Trump’s Immigration Policy” — “It’s not a court anymore, it’s an enforcement mechanism,” said Paul Wickham Schmidt, who was himself chair of the BIA between 1995 and 2001 and now writes a popular immigration blog called Immigration Courtside. “They’re taking predetermined policy and just disguising it as judicial opinions, when the results have all been predetermined and it has nothing to do or little to do with the merits of the cases.”

🏴‍☠️⚰️☠️👎

 

https://www.thenation.com/authors/felipe-de-la-hoz/

 

Just eight miles from the White House, the Trump administration has quietly opened a new front in its war against immigrants. Inside a 26-story office tower next to a Target in Falls Church, Virginia, the Board of Immigration Appeals has broken with any pretense of impartiality and appears to be working in lockstep with the administration to close the door on immigrants’ ability to remain in the country.

Created in 1940, when the immigration system was moved from the Department of Labor to the Justice Department, BIA serves as the appellate court within the immigration system, where both ICE prosecutors and noncitizen respondents can appeal decisions by individual immigration court judges around the country. It not only decides the fate of the migrants whose cases it reviews; if it chooses to publish a decision, it sets precedent for immigration courts across the country.

Under previous administrations, the BIA was ostensibly impartial and bipartisan, though mainly out of a long-standing tradition of promoting judicial objectivity. Since the entire immigration court system is contained in the Department of Justice—within an administrative agency known as the Executive Office for Immigration Review (EOIR)—immigration judges, including those serving as board members on the BIA, are employees of the DOJ, and, by extension, are part of the executive branch. Unlike their counterparts in the federal judiciary, immigration judges are not independent.

TOP ARTICLES2/5READ MOREPence Masks Up While Trump Keeps Dog-Whistling

Since 2018, the Trump administration has exploited its powers over the BIA by expanding the board from 17 to 23 members to accommodate additional anti-immigrant hardliners. Justice Department memos obtained by the American Immigration Council and the American Immigration Lawyers Association (AILA) show that EOIR pushed shorter hiring timelines, which were used to bring on judges with more restrictionist records.

Now the court is stacked with members who have consistently ruled against immigrants, such as one judge who threatened to unleash a dog on a two-year-old boy during a hearing. Numbers obtained by a law firm through a Freedom of Information Request show that the six BIA judges appointed by Attorney General William Barr all had granted asylum in less than 10 percent of cases in fiscal year 2019. (One never granted asylum, despite hearing 40 cases.) An EOIR spokesperson told The Nation in an e-mail that“EOIR does not choose Board members based on prohibited criteria such as race or politics” and that “Board members are selected through an open, competitive, merit-based process.”

The most notable example of the administration’s preference for ultraconservative judges came in late May, when Barr appointed David H. Wetmore as BIA chairman. Wetmore, a former immigration adviser to the White House Domestic Policy Council, was around for some of the Trump administration’s most egregious policies, including the travel ban and family separation policy.

Although only two decisions have been issued since Wetmore was appointed chair, he seems set to pick up where his predecessor, former Acting Chair Garry G. Malphrus, left off. Malphrus, a George W. Bush holdover, became the face of the court’s lurch to curtail immigrants’ legal protections since Trump took office. He had the hawkish bona fides that made him an ideal chairman under the Trump DOJ: From 1997 to 2001, he served as chief counsel to one-time segregationist Senator Strom Thurmond on the Senate Judiciary Committee, and he was made associate director of the White House Domestic Policy Council after his roleas a Brooks Brothers rioter during the 2000 Bush v. Gore recount in Florida—during which GOP operatives staged a protest that disrupted a recount and may have handed Bush the presidency.

Malphrus was made acting chair in 2019, and authored 24 of the 78 BIA precedential decisions issued under the current administration. Almost all of these precedential decisions have made it more difficult for immigrants to win their cases. The board made it harder for victims of terrorism to win asylum and raised the bar of evidence needed for several types of protections.

“It’s not a court anymore, it’s an enforcement mechanism,” said Paul Wickham Schmidt, who was himself chair of the BIA between 1995 and 2001 and now writes a popular immigration blog called Immigration Courtside. “They’re taking predetermined policy and just disguising it as judicial opinions, when the results have all been predetermined and it has nothing to do or little to do with the merits of the cases.”

Consider this: In a case decided in January, the BIA was considering whether an immigration judge had erred in refusing to postpone a removal decision for a person awaiting a decision on a U visa application—a visa type reserved for victims of certain crimes or those cooperating with authorities investigating a crime—to be resolved. (ICE had recently changed their policies to make it easier to deport people in this situation.) The BIA sided with the judge, acknowledging that the crime victim was “eligible for a U visa” but was not entitled to wait to receive it, in part due to his “lack of diligence in pursuing” one. The decision signals that immigrants eligible for crime victim visas, and who are willing to cooperate with law enforcement, can still be ordered deported.

While federal courts hear public oral arguments and largely deliberate openly, the BIA typically uses a paper review method, which means they receive briefs from opposing parties and hand down a decision some time later with the whole intervening process shrouded in secrecy. “Unlike federal courts, where unpublished decisions are still accessible by the public, and so you can track what judges are saying in decisions that do not make precedent, the [BIA] only sporadically releases those decisions,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.

. . . .

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

 

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

 

Filipe’s final point in the article is one we should all keep in mind:

 

For hundreds of thousands of immigrants, it doesn’t matter if the anti-immigrant paper pushers in this obscure administrative body are tossed out and all of the policy is slowly reversed by another administration; for most, one shot is all they get. Whether a case was winnable before or even after the Trump BIA is irrelevant. The chance to stay in the United States will be lost forever.

The damage to our humanity and our national conscience inflicted by Trump’s White Nationalist regime, wrongfully enabled by complicit Supremes, and aided and abetted by a GOP Senate will not be “cured” by inevitable later “reforms,” be they next year under a better Administration or decades from now, as is happening with other racial justice issues. Undoubtedly, as eventually will be established, the current anti-immigrant and particularly the anti-asylum policies of the Trump regime are deeply rooted in racism, xenophobia, and misogyny. One need only look at the well-documented careers of “hate architects” like Stephen Miller, Steve Bannon, and Jeff Sessions to see the intentional ignorance and ugliness at work here.

I frankly don’t see how we as a nation ever can come to grips with the racial tensions and demands for equal justice now tearing at our society without recognizing the unconscionable racism and immorality driving our current immigration and refugee policies and the failure and untenability of too many leaders in all three branches who have either helped promote racial injustice or have lacked the moral and intellectual courage consistently to stand up against it. They are the problem, and their departure or disempowerment, no matter how long it takes, will be necessary for us eventually to move forward as one nation.

Due Process Forever!

PWS

06-30–20

 

CHANNELING JOHN LENNON? – Conservative Judiciary Revolts! – Hand-Selected Over Two-Decades By America’s Chief Prosecutors to Quash Dissent & Promote Compliance With DOJ’s Politicized “Priorities,” Immigration Judges Chafe Under Interference, Humiliation, Lack of Concern for Health & Safety by Their Political Boss “Billy the Bigot” Barr!

 

REVOLUTION

By The Beatles

 

[Intro]
Aah!

[Verse 1]
You say you want a revolution
Well, you know
We all want to change the world

You tell me that it’s evolution
Well, you know
We all want to change the world

But when you talk about destruction
Don’t you know that you can count me out

[Chorus]
Don’t you know it’s gonna be
Alright
Alright
Alright

[Verse 2]
You say you got a real solution
Well, you know
We’d all love to see the plan

You ask me for a contribution
Well, you know
We’re all doing what we can
But if you want money for people with minds that hate
All I can tell you is, brother, you have to wait

[Chorus]
Don’t you know it’s gonna be
Alright
Alright
Alright

[Instrumental Break]

[Verse 3]
You say you’ll change the constitution
Well, you know
We all want to change your head
You tell me it’s the institution
Well, you know
You better free your mind instead

But if you go carrying pictures of Chairman Mao
You ain’t going to make it with anyone anyhow

[Chorus]
Don’t you know it’s gonna be
Alright
Alright
Alright

[Outro]
Alright, alright
Alright, alright
Alright, alright
Alright, alright!

 

Music and lyrics from Genius.com:

https://genius.com/

 

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

https://prospect.org/justice/revolt-of-the-immigration-judges/

From American Prospect:

The Revolt of the Judges

The Trump administration has ordered immigration court judges to reject more applicants and speed up trials—and it wants to bust the judges’ union.

BY STEPHEN FRANKLIN

 

JUNE 23, 2020

 

 

First you see scenes from classic movies of wizened judges, brave lawyers, and contemplative juries, but then the video lays out its grim theme: This is not what happens in America’s immigration courts.

These courts are subject to political influences, a narrator explains. They are driven by political messages, and bound by rules based on the “whims” of whoever is in power in Washington, D.C., she says. They don’t provide the blind justice that Americans expect. What they provide is assembly-line justice.

Who is making these claims? A hard-line political or fringe legal group? Hardly. The video is from the National Association of Immigration Judges (NAIJ), the union that represents the nation’s 460-plus immigration judges—reasonably well-paid lawyers, many of whom come from government and law enforcement backgrounds.

Nor is the video the first such salvo from the judges’ group, which has lobbied Congress and spoken out frequently about what’s gone exceptionally wrong with the immigration courts under the Trump administration. Such criticisms, the judges say, are the reason that the government sought last August to decertify their union, the only such effort taken by the Trump administration against a federal workers’ labor organization.

“They are trying to silence the judges by silencing their union,” says Paul Shearon, head of the 90,000-member Professional and Technical Engineers union, to which the NAIJ has been affiliated for the past 30 years. He worries that busting a federal union may be the “next step” in the Trump administration’s actions meant to weaken all federal unions.

Shearon is confident, however, that the union will win its fight against decertification when the local level of the Federal Labor Relations Authority (FLRA) issues its ruling. He is “not so optimistic,” though, that it will prevail at the higher level of the FLRA, where two of three boardmembers are Trump appointees and “clearly political players.” Though the government has sought to speed up a ruling, the judges do not know when a decision is likely—but they expect one before the November election.

The judges’ complaints are many.

. . . .

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

Read the rest of the article and view the video “The Immigration Courts: Nothing Like You Have Imagined.”

Should be required viewing for every Justice, Federal Judge, U.S. Legislator, and law student.

You don’t need a law degree to know that something purporting to be a “court” where a notoriously corrupt and dishonest political prosecutor is directing “his judges” to deny asylum and speed up the assembly line is unconstitutional under the Fifth and Fourteenth Amendments. Yet, every day, life-tenured Court of Appeals Judges rubber stamp the results, often effectively death sentences, of this Star Chamber without questioning the obvious defects. Why?

America’s need for judicial reform and establishing scholarship, courage, integrity, fairness, commitment to due process and human rights, practical problem solving, and humanity as the hallmarks of judicial service runs much deeper than the Immigration “Courts.” If we want to achieve “equal justice for all” as required by our Constitution, but not being uniformly delivered by our judiciary, we need better judges at all levels of our Federal Judiciary.

That starts with throwing out Trump and the GOP Senate that has stuffed our Article III Judiciary with unqualified right-wing ideologues, intentionally tone-deaf to the legal and human rights of refugees, immigrants, people of color, women, the poor, working people, and a host of others whose humanity they decline to recognize. But, that is by no means the end of the changes necessary!

Due Process Forever. Complicit Courts, Never!

PWS

06-24-20

 

IMAGINE: How Would YOU Like To Be Judged in America’s Star Chambers?

 

Me

IMAGINE: How Would YOU Like To Be Judged in America’s Star Chambers?

By Paul Wickham Schmidt

Special to Courtside

June 14, 2020

Imagine yourself in a foreign land. You don’t speak the language, and you don’t know the rules. You’re arrested for a minor crime. You think you have a plausible defense. But, it could result in capital punishment. You are detained in squalid conditions. You’re hauled before a court. The bond is ludicrously high, set by the prosecutor and judge under rules they make up as they go along. You don’t have a lawyer because you can’t afford one. The “judge” is appointed by the chief prosecutor. The judge herself is a former prosecutor. The prosecutor makes the rules. 

If you win, the prosecutor can appeal to a body stacked in his or her favor. If you lose, you can appeal to a tribunal hand-selected by the chief prosecutor because of their harshness and votes to convict more than 90% of the time. If, against those odds, you still win acquittal, the chief prosecutor can take over the case, rewrite the rules, and change the verdict to guilty. In the meantime, you’ll remain imprisoned in the “Gulag.”

Doesn’t sound like much fun does it? Am I describing something out of a third-world dictatorship or a Kafka novel?  Absolutely not! This system operates right here in our United States of America, right now.

It’s chewing up and spitting out the lives of men, women, and even children who are supposed to receive due process and fundamental fairness and instead get the exact opposite. It’s enabled by Supreme Court Justices, Federal Judges, legislators, and public officials who won’t stand up for the legal and Constitutional rights of migrants and asylum seekers in the face of grotesque Executive abuses.

It’s called the U.S. Immigration Court. It exists in a “Constitution & humanity-free zone.” It’s run by Chief Prosecutor Billy Barr and his subordinates at the U.S. Department of Justice (“DOJ”). It’s not really a “court” at all, by any rational definition. 

No, it’s a national disgrace and an intentional perversion of the constitutional right to due process, fundamental fairness, and human dignity. It’s also an unmitigated management disaster where DOJ-promoted  “Aimless Docket Reshuffling” (“ADR”) has built an astounding 1.4 million case backlog with cases stretching out beyond the next Administration, even after doubling the number of “judges.” More judges means more backlog in this wacko system.

In the words of my friend and fellow panelist, Ira Kurzban, “this is not normal.” Yet complicit public officials, legislators, and life-tenured Federal Judges continue to “normalize” “America’s Star Chambers” and their biased, race-driven nativist attack on our Constitution and our humanity!

It needs to change. But, all three branches of our government currently lack the courage, leadership, and integrity to make “equal justice under law” a reality rather than just a slogan.

The three things I would do right up front are:

First, remove the Immigration Courts from the DOJ and create an independent, Article I U.S. Immigration Court as recommended by ABA President Judy Perry Martinez, the FBA, the NAIJ, AILA and almost all other true experts in the field.

Second, return the Immigration Courts to their previous noble mission of “through teamwork and innovation, be the world’s best tribunals guaranteeing fairness and due process for all.” End the disgraceful, unlawful, unconstitutional use of the Immigration Courts as a tool of DHS Enforcement, a deterrent, and a weaponized enforcer of a nativist, anti-human-rights agenda.

Third, replace the current highly-biased, one-sided judicial hiring system with a merit-based hiring process that properly weighs and credits demonstrated fairness, scholarship in immigration and human rights, experience representing asylum seekers and other migrants, and involves meaningful public input in judicial selections. Since 2000, the current skewed system has favored prosecutors and other “government insiders” by a ratio of more than 9-1, and has totally excluded private sector candidates from appellate judgeships at the Board of Immigration Appeals (“BIA”).

Our Constitution requires “equal justice for all.” To achieve it, we need public officials, legislators, Supreme Court Justices, and other Federal Judges who actually believe in it. That means real change in all three branches of our failing (and worse) Federal Government. Due Process Forever; Corrupt Officials, Feckless Legislators, and Complicit Courts, Never!

This is derived from my virtual panel presentation before the ABA Section on International Law on June 8, 2020.

© Paul Wickham Schmidt. 2020.

ANNE APPLEBAUM @ THE ATLANTIC: “History Will Judge the Complicit: Why have Republican leaders abandoned their principles in support of an immoral and dangerous president?” ☠️👎🏻

Anne Applebaum
Anne Applebaum
American Journalist & Historian

https://apple.news/Al__dZnidS7iBkjiQiuWRfg

. . . .

In February, many members of the Republican Party leadership, Republican senators, and people inside the administration used various versions of these rationales to justify their opposition to impeachment. All of them had seen the evidence that Trump had stepped over the line in his dealings with the president of Ukraine. All of them knew that he had tried to use American foreign-policy tools, including military funding, to force a foreign leader into investigating a domestic political opponent. Yet Republican senators, led by Mitch McConnell, never took the charges seriously. They mocked the Democratic House leaders who had presented the charges. They decided against hearing evidence. With the single exception of Romney, they voted in favor of ending the investigation. They did not use the opportunity to rid the country of a president whose operative value system—built around corruption, nascent authoritarianism, self-regard, and his family’s business interests—runs counter to everything that most of them claim to believe in.

Just a month later, in March, the consequences of that decision became suddenly clear. After the U.S. and the world were plunged into crisis by a coronavirus that had no cure, the damage done by the president’s self-focused, self-dealing narcissism—his one true “ideology”—was finally visible. He led a federal response to the virus that was historically chaotic. The disappearance of the federal government was not a carefully planned transfer of power to the states, as some tried to claim, or a thoughtful decision to use the talents of private companies. This was the inevitable result of a three-year assault on professionalism, loyalty, competence, and patriotism. Tens of thousands of people have died, and the economy has been ruined.

This utter disaster was avoidable. If the Senate had removed the president by impeachment a month earlier; if the Cabinet had invoked the Twenty-Fifth Amendment as soon as Trump’s unfitness became clear; if the anonymous and off-the-record officials who knew of Trump’s incompetence had jointly warned the public; if they had not, instead, been so concerned about maintaining their proximity to power; if senators had not been scared of their donors; if Pence, Pompeo, and Barr had not believed that God had chosen them to play special roles in this “biblical moment”—if any of these things had gone differently, then thousands of deaths and a historic economic collapse might have been avoided.

The price of collaboration in America has already turned out to be extraordinarily high. And yet, the movement down the slippery slope continues, just as it did in so many occupied countries in the past. First Trump’s enablers accepted lies about the inauguration; now they accept terrible tragedy and the loss of American leadership in the world. Worse could follow. Come November, will they tolerate—even abet—an assault on the electoral system: open efforts to prevent postal voting, to shut polling stations, to scare people away from voting? Will they countenance violence, as the president’s social-media fans incite demonstrators to launch physical attacks on state and city officials?

Each violation of our Constitution and our civic peace gets absorbed, rationalized, and accepted by people who once upon a time knew better. If, following what is almost certain to be one of the ugliest elections in American history, Trump wins a second term, these people may well accept even worse. Unless, of course, they decide not to.

When I visited Marianne Birthler, she didn’t think it was interesting to talk about collaboration in East Germany, because everybody collaborated in East Germany. So I asked her about dissidence instead: When all of your friends, all of your teachers, and all of your employers are firmly behind the system, how do you find the courage to oppose it? In her answer, Birthler resisted the use of the word courage; just as people can adapt to corruption or immorality, she told me, they can slowly learn to object as well. The choice to become a dissident can easily be the result of “a number of small decisions that you take”—to absent yourself from the May Day parade, for example, or not to sing the words of the party hymn. And then, one day, you find yourself irrevocably on the other side. Often, this process involves role models. You see people whom you admire, and you want to be like them. It can even be “selfish.” “You want to do something for yourself,” Birthler said, “to respect yourself.”

For some people, the struggle is made easier by their upbringing. Marko Martin’s parents hated the East German regime, and so did he. His father was a conscientious objector, and so was he. As far back as the Weimar Republic, his great-grandparents had been part of the “anarcho-syndicalist” anti-Communist left; he had access to their books. In the 1980s, he refused to join the Free German Youth, the Communist youth organization, and as a result he could not go to university. He instead embarked on a vocational course, to train to be an electrician (after refusing to become a butcher). In his electrician-training classes, one of the other students pulled him aside and warned him, subtly, that the Stasi was collecting information on him: “It’s not necessary that you tell me all the things you have in mind.” He was eventually allowed to emigrate, in May 1989, just a few months before the fall of the Berlin Wall.

In America we also have our Marianne Birthlers, our Marko Martins: people whose families taught them respect for the Constitution, who have faith in the rule of law, who believe in the importance of disinterested public service, who have values and role models from outside the world of the Trump administration. Over the past year, many such people have found the courage to stand up for what they believe. A few have been thrust into the limelight. Fiona Hill—an immigrant success story and a true believer in the American Constitution—was not afraid to testify at the House’s impeachment hearings, nor was she afraid to speak out against Republicans who were promulgating a false story of Ukrainian interference in the 2016 election. “This is a fictional narrative that has been perpetrated and propagated by the Russian security services themselves,” she said in her congressional testimony. “The unfortunate truth is that Russia was the foreign power that systematically attacked our democratic institutions in 2016.”

Lieutenant Colonel Alexander Vindman—another immigrant success story and another true believer in the American Constitution—also found the courage, first to report on the president’s improper telephone call with his Ukrainian counterpart, which Vindman had heard as a member of the National Security Council, and then to speak publicly about it. In his testimony, he made explicit reference to the values of the American political system, so different from those in the place where he was born. “In Russia,” he said, “offering public testimony involving the president would surely cost me my life.” But as “an American citizen and public servant … I can live free of fear for mine and my family’s safety.” A few days after the Senate impeachment vote, Vindman was physically escorted out of the White House by representatives of a vengeful president who did not appreciate Vindman’s hymn to American patriotism—although retired Marine Corps General John Kelly, the president’s former chief of staff, apparently did. Vindman’s behavior, Kelly said in a speech a few days later, was “exactly what we teach them to do from cradle to grave. He went and told his boss what he just heard.”

[Read: John Kelly finally lets loose on Trump]

But both Hill and Vindman had some important advantages. Neither had to answer to voters, or to donors. Neither had prominent status in the Republican Party. What would it take, by contrast, for Pence or Pompeo to conclude that the president bears responsibility for a catastrophic health and economic crisis? What would it take for Republican senators to admit to themselves that Trump’s loyalty cult is destroying the country they claim to love? What would it take for their aides and subordinates to come to the same conclusion, to resign, and to campaign against the president? What would it take, in other words, for someone like Lindsey Graham to behave like Wolfgang Leonhard?

If, as Stanley Hoffmann wrote, the honest historian would have to speak of “collaborationisms,” because the phenomenon comes in so many variations, the same is true of dissidence, which should probably be described as “dissidences.” People can suddenly change their minds because of spontaneous intellectual revelations like the one Wolfgang Leonhard had when walking into his fancy nomenklatura dining room, with its white tablecloths and three-course meals. They can also be persuaded by outside events: rapid political changes, for example. Awareness that the regime had lost its legitimacy is part of what made Harald Jaeger, an obscure and until that moment completely loyal East German border guard, decide on the night of November 9, 1989, to lift the gates and let his fellow citizens walk through the Berlin Wall—a decision that led, over the next days and months, to the end of East Germany itself. Jaeger’s decision was not planned; it was a spontaneous response to the fearlessness of the crowd. “Their will was so great,” he said years later, of those demanding to cross into West Berlin, “there was no other alternative than to open the border.”

But these things are all intertwined, and not easy to disentangle. The personal, the political, the intellectual, and the historical combine differently within every human brain, and the outcomes can be unpredictable. Leonhard’s “sudden” revelation may have been building for years, perhaps since his mother’s arrest. Jaeger was moved by the grandeur of the historical moment on that night in November, but he also had more petty concerns: He was annoyed at his boss, who had not given him clear instructions about what to do.

Could some similar combination of the petty and the political ever convince Lindsey Graham that he has helped lead his country down a blind alley? Perhaps a personal experience could move him, a prod from someone who represents his former value system—an old Air Force buddy, say, whose life has been damaged by Trump’s reckless behavior, or a friend from his hometown. Perhaps it requires a mass political event: When the voters begin to turn, maybe Graham will turn with them, arguing, as Jaeger did, that “their will was so great … there was no other alternative.” At some point, after all, the calculus of conformism will begin to shift. It will become awkward and uncomfortable to continue supporting “Trump First,” especially as Americans suffer from the worst recession in living memory and die from the coronavirus in numbers higher than in much of the rest of the world.

Or perhaps the only antidote is time. In due course, historians will write the story of our era and draw lessons from it, just as we write the history of the 1930s, or of the 1940s. The Miłoszes and the Hoffmanns of the future will make their judgments with the clarity of hindsight. They will see, more clearly than we can, the path that led the U.S. into a historic loss of international influence, into economic catastrophe, into political chaos of a kind we haven’t experienced since the years leading up to the Civil War. Then maybe Graham—along with Pence, Pompeo, McConnell, and a whole host of lesser figures—will understand what he has enabled.

In the meantime, I leave anyone who has the bad luck to be in public life at this moment with a final thought from Władysław Bartoszewski, who was a member of the wartime Polish underground, a prisoner of both the Nazis and the Stalinists, and then, finally, the foreign minister in two Polish democratic governments. Late in his life—he lived to be 93—he summed up the philosophy that had guided him through all of these tumultuous political changes. It was not idealism that drove him, or big ideas, he said. It was this: Warto być przyzwoitym—“Just try to be decent.” Whether you were decent—that’s what will be remembered.

This article appears in the July/August 2020 print edition with the headline “The Collaborators.”

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

Read Applebaum’s entire, much longer article at the link. Part of it is a fascinating study of how and why, despite backgrounds pointing in exactly the opposite directions, Lindsey Graham abandoned principle and became one of Trump’s “chief collaborators,” while Mitt Romney stood up against Trump and his GOP collaborators in the Senate. 

These days, the GOP doesn’t produce many folks with intellectual honesty and capacity for self-examination. Indeed, those exhibiting anything suggesting those qualities might be lurking in their souls are shunned or railroaded out of the party (see, e.g., Jeff Flake). So, I wouldn’t hold my breath for any of Trump’s toadies to actually own up to or take responsibility for their “crimes against humanity.” 

And “decency,” well, that’s been absent from GOP politicos for some time now. Kids in cages. Taking away the legal and constitutional rights of asylum seekers. Sending abused women refugees back to be tortured by their abusers. Attacking California’s meager payments to our undocumented fellow humans, many performing essential services at risk to their health. Turning Immigration Courts into Star Chambers. Using false narratives to incite hate attacks on African Americans, Hispanic Americans, Asian Americans, and American Journalists. Failing to speak out forcefully against anti-semitic White Nationalist thugs. Looking the other way or even encouraging Trump to mistreat those courageous civil servants who dare speak truth to his lies. “Orbiting” vulnerable asylum seekers back to squalid danger zones. Denying detained kids toothbrushes.The list of indecent acts could go on almost forever. 

But, fortunately, as Applebaum suggests, that won’t save these GOP collaborators from the judgments of history. Unfortunately, however, historical vindication won’t save the lives of those victims who have died at the collaborators’ hands, nor will it undo the scars that some will bear for life as the result of the “crimes against humanity” committed by Trump and his GOP cronies. And, that’s the indelible shame of a nation that let Trump and the GOP wield their toxic political power in the first place.

Due Process Forever! Complicity in the Face of Tyranny, Never!

PWS

06-04-20

IT’S HERE! — IMMIGRATION HISTORY AT ITS BEST! — Months In The Making, The “Schmidtcast,” A 7-Part Series Featuring Podcaster Marica Sharashenidze Interviewing Me About My Legal Career “American Immigration From Mariel to Miller” — Tune In Now!

Marica Sharashenidze
Marica Sharashenidze
Podcaster Extraordinaire

Marica Sharashenidze

Born in 1993, Marica was raised in Maryland and earned a B.A. in Sociology from Rice University. Marica worked in the past as a paralegal at Hudson Legal in Ann Arbor and most recently explored eGovernance based infrastructure projects on the Dorot Fellowship. In the past, she received the Wagoner Fellowship, from the Higher School of Economics in Saint Petersburg, Russia, where she completed a year long ethnographic research project. She is fluent in Russian and proficient in Spanish and Hebrew.

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

Judge (Retired) Paul Wickham Schmidt 

Judge Schmidt was appointed as an Immigration Judge at the U.S. Immigration Court in Arlington, Virginia, in May 2003 and retired from the bench on June 30, 2016. Prior to his appointment as an Immigration Judge, he served as a Board Member for the Board of Immigration Appeals, Executive Office for Immigration Review, in Falls Church, VA, since February 12, 1995. Judge Schmidt served as Board Chairman from February 12, 1995, until April 9, 2001, when he chose to step down as Chairman to adjudicate cases full-time. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), extending asylum protection to victims of female genital mutilation.  He received a Bachelor of Arts degree from Lawrence University in 1970 (cum laude), and a Juris Doctorate from the University of Wisconsin School of Law in 1973 (cum laude; Order of the Coif). While at the University of Wisconsin, he served as an editor of the Wisconsin Law Review. Judge Schmidt served as acting General Counsel of the former Immigration and Naturalization Service (INS) (1986-1987; 1979-1981), where he was instrumental in developing the rules and procedures to implement the Immigration Reform and Control Act of 1986. He also served as the Deputy General Counsel of INS for 10 years (1978-1987). He was the managing partner of the Washington, DC, office of Fragomen, Del Rey & Bernsen (1993-95), and also practiced business immigration law with the Washington, DC, office of Jones, Day, Reavis and Pogue from 1987-92 (partner, 1990-92). Judge Schmidt also served as an adjunct professor of law at George Mason University School of Law in 1989 and at Georgetown University Law Center (2012-14; 2017–). He has authored numerous articles on immigration law, and has written extensively for the American Immigration Lawyers Association. Judge Schmidt is a member of the American Bar Association, the Federal Bar Association, and the Wisconsin and District of Columbia Bars. Judge Schmidt was one of the founding members of the International Association of Refugee Law Judges (“IARLJ”).  In June 2010, Judge Schmidt received the Lucia R. Briggs Distinguished Achievement Award from the Lawrence University Alumni Association in recognition of his notable career achievements in the field of immigration law. Since retiring, in addition to resuming his Adjunct Professor position at Georgetown Law, Judge Schmidt has established the blog immigrationcourtside.com, is an Americas Vice President of the IARLJ, serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects, as well as speaking, lecturing, and writing in forums throughout the country on contemporary immigration issues, due process, and U.S. Immigration Court reform.

Here are links:

https://pws.transistor.fm/

https://feeds.transistor.fm/the-life-and-times-of-the-honorable-paul-wickham-schmidt

And here are some “Previews with links to each episode:”

 

Concluding Remarks

So, what now? Will the intentional cruelty, “Dred Scottification,” false narratives, and demonization of “the other,” particularly women, children, and people of color, by presidential advisor Stephen Miller and his White Nationalists become the “future face” of America? Or, will “Our Better Angels” help us reclaim the vision of America as the “Shining City on the Hill,” welcoming immigrants and protecting refugees, in good times and bad, while “leading by example” toward a more just and equal world?

The Mariel Boatlift Crisis

The Refugee Act of 1980 feels like a huge success…for a short amount of time. The first test of the act comes when Fidel Castro opens Cuba’s borders (and Cuba’s prisons) and hundreds of refugees arrive on Florida shores. The Mariel Boatlift Crisis forced the U.S. government to realize that not all asylum processing can happen abroad. Unfortunately, it also left the public with the impression that “Open arms and open hearts” leads only to crisis.

The Refugee Act of 1980

The year is 1980 and the war in Vietnam has displaced hundreds and thousands of people. The system of presidential parole doesn’t seem like it can handle the growing global refugee crisis. What is the answer to this ballooning need? Process most refugees abroad to streamline their entrance to the U.S. Codify asylum in the U.S. in legislation that puts human rights first. Increase prestige, improve overall government coordination, provide a permanent source of funding, and institutionalize refugee resettlement programs and assimilation. Have Ted Kennedy be the face of the effort. For once, things are actually working out for humanity.

The 1990s BIA

In the 1990s, Judge Schmidt was BIA Chairman Schmidt. With the support of then Attorney General Janel Reno, he aspired to “open up” appellate judgeships to all immigration experts, and to lead the BIA to much-needed progressive steps towards humane asylum law, better scholarship, improved public service, transparency, and streamlined efficiency to reduce the backlog. However, progress seemed to stall at several points and certain types of behavior tended to be rewarded. The Board sits at the intersection between a court and an agency within the administration, which means its hurdles come both from structural issues with the U.S. Justice System and with entrenched government bureaucracy.

Creating EOIR

In the 1980s, critics claimed that the federal agency in charge of immigration enforcement, the “Legacy” Immigration and Naturalization Service (“INS”), could not process quasi-judicial cases in a fair and just manner due to limited autonomy, non-existent technology, insufficient resources, haphazard management, poor judicial selection processes, and backlogs. The solution? Create a sub-agency of the Department of Justice (“DOJ”) just for the immigration courts, focused on “due process with efficiency” and organizationally separate from the agency charged with immigration enforcement. The Executive Office of Immigration Review (“EOIR”) was an ambitious and noble endeavor, meant to be an independent court system operating inside of a Federal Cabinet agency. Spoiler: despite significant initial progress it did not work out that way in the long run.

The Immigration Reform and Control Act

In 1986, the United States was facing an immigration crisis with an overwhelmed INS and a record number of undocumented folks in the country. IRCA, a bipartisan bill, was created to solve the immigration crisis through a three-pronged approach: legalization, enforcement and employer accountability. However, it soon became apparent that some parts of IRCA were more successful than others. IRCA taught us relevant lessons for going forward. Because while pathways to citizenship are self-sustaining, enforcing borders is not.

The Ashcroft Purge

Judges are meant to be impartial; but, U.S. Immigration Judges have political bosses who are willing and able to fire them while making little secret of their pro-enforcement, anti-immigrant political agenda. What are the public consequences of an Immigration Court with limited autonomy from the Executive Branch? We begin the podcast at one of the “turning points,” when Attorney General John Ashcroft fired almost all the most “liberal” Board Members of the BIA, all of whom were appointed during the Clinton Administration. What followed created havoc among the U.S. Courts of Appeals who review BIA decisions. The situation has continually deteriorated into the “worst ever,” with “rock bottom” morale, overwhelming backlogs, fading decisional quality, and the “weaponized”Immigration Courts now tasked with carrying out the Trump Administration’s extreme enforcement policies.

 

You should also be able to search for the podcast on iTunes, Stitcher or Spotify just by searching “American Immigration From Mariel to Miller”.

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Many, many thanks to Marica for persuading me to do this project and for doing all the “hard stuff.” I just “rambled on” — her questions and expert editing provided the context and “framework.”  And, of course, Marica provided all the equipment (the day her brother “borrowed” her batteries) and the accompanying audio clips and written introductions. 

Also, many thanks to my wife Cathy for the many hours that she and “Luna the Dog” (a huge “Marica fan”) spent trying not to listen to us working in the dining room, while adding many helpful suggestions to me, starting with “you sound too rehearsed” and “lose the ‘uhs’ and ‘you knows.’” She even put up with me playing some of the “original takes” while we were “on the road” to Wisconsin or Maine.

Happy listening!

Due Process Forever!

PWS😎

05-19-20