UW Law Looking For Immigrant Justice Clinic Director!

http://jobs.hr.wisc.edu/cw/en-us/job/495278/immigrant-justice-clinic-director

Click the link for full details. Great opportunity for a bilingual immigration attorney who wants to get into clinical teaching at a terrific school in a super city. Unlike many of today’s law schools, UW Law is located on Bascom Hill in the “heart” of the Main Campus with a view of the Capitol dome! Madison has to be one of the best places to live in the US.

While the initial appointmeet is for one year, based on performance, creativity, and ability to inspire funding, the position has longer term potential!

And, as an extra bonus, if you get the job, I’ll drop by at some mutually convenient time and give your students a “guest lecture.” Preferably right before a Badger home football or basketball game!

Thanks to Professor Alberto Benítez of the GW Law Immigration Clinic for sending this my way.

PWS

06-09-17

AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS — Read My Keynote Speech FromThe Pennsylvania Immigration Resource Center’s “Light Of Liberty Awards” Ceremony Last Night!

AMERICA’S REAL IMMIGRATION CRISIS: THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATON COURTS

Keynote Address by

Paul Wickham Schmidt

United States Immigration Judge (Retired)

LIGHT OF LIBERTY AWARDS

Pennsylvania Immigration Resource Center

Heritage Hills Golf Resort

York, PA

JUNE 7, 2016

I. INTRODUCTION

Good evening. Thank you so much for inviting me to speak at this wonderful event. I’m honored to be here. The PIRC is a terrific organization that provides critical legal services to the most vulnerable during one of the most difficult periods in our recent history.

The York area has a well-established tradition of humanitarian generosity and support for the most needy that was highlighted during the Golden Venture episode and described in the book Snakehead. I learned today that PIRC was formed to respond to the needs of the Golden Venture detainees. The U.S. Immigration Court in York has one of the highest representation rates for detained individuals in the nation, over 50%.

By contrast, the Arlington Immigration Court, where I used to sit, and the Baltimore Immigration Court had detained representation rates of around 20% and 10% respectively. And, it’s even worse in other parts of the country.

Back in February, I had the pleasure of working with your amazing Executive Director, Mary Studzinski, at a group session directed at improving training for non-attorney representatives authorized to practice before the U.S. Immigration Courts and the Board of Immigration Appeals. We bonded instantly. That’s “human bonding” rather than “immigration bonding,” of course. Mary’s kinetic energy, practical knowledge, tremendous dedication, and incisive contributions to the group were simply stunning. I must admit, I thought she was the Managing Attorney of the organization until she explained her role to me. You are so fortunate to have of someone who cares so deeply about your mission leading you. Mary is just what America needs right now.

Speaking of what America needs, I of course want to be the first to congratulate the five extraordinary individuals and two groups we are honoring tonight with well-deserved “Light of Liberty” Awards. Your energy, knowledge, and willingness to give of yourselves to others is making a much needed positive difference in this community and in our world. Each of you is indeed changing the course of history for the better. And, I’m pleased to announce that I have bestowed on each of tonight’s award recipients the rank of “General” in the “New Due Process Army. “

And, of course, thanks again to our great sponsors, mentioned by Mary, for supporting PIRCV and tonight’s awards.

II. THE DUE PROCESS CRISIS IN IMMIGRATON COURT

As most of you in this room probably recognize, there is no “immigration crisis” in America today. What we have is a series of potentially solvable problems involving immigration that have been allowed to grow and fester by politicians and political officials over many years.

But, there is a real crisis involving immigration: the attack on due process in our U.S. Immigration Courts that have brought them to the brink of collapse. I’m going to tell you seven things impeding the delivery of due process in Immigration Court that should be of grave concern to you and to all other Americans who care about our justice system and our value of fundamental fairness.

First, political officials in the last three Administrations have hijacked the noble mission of the U.S. Immigration Courts. That vision, which I helped develop in the late 1990s, is to “be the world’s best administrative tribunals guaranteeing fairness and due process for all.”

Instead, the Department of Justice’s ever-changing priorities, aimless docket reshuffling, and morbid fascination with increased immigration detention as a means of deterrence have turned the Immigration Court system back into a tool of DHS enforcement. Obviously, it is past time for an independent U.S. Immigration Court to be established outside the Executive Branch.

Second, there simply are not enough pro bono and low bono attorneys and authorized representatives available to assist all the individuals who need representation in Immigration Court. As I mentioned, this problem is particularly acute in detention courts. We know that representation makes a huge difference. Represented individuals succeed at rates four to five times greater than unrepresented individuals.

There have been a number of studies documenting the substandard conditions in immigration detention, particularly those run by private contractors, which in some cases prove deadly or debilitating. Some of these studies have recommended that immigration detention be sharply reduced and that so-called “family detention” be discontinued immediately.

A rational response might have been to develop creative alternatives to detention, and to work closely with and support efforts to insure access to legal representation for all individuals in Removal Proceedings. Instead, the response of the current Administration has been to “double down” on detention, by promising to detain all undocumented arrivals and to create a new “American Gulag” of detention centers, most privately run, along our southern border, where access to attorneys and self-help resources is limited to non-existent.

Third, the Immigration Courts have an overwhelming caseload. Largely as a result of “aimless docket reshuffling” by Administrations of both parties, the courts’ backlog has now reached an astounding 600,000 cases, with no end in sight. Since 2009, the number of cases pending before the Immigration Courts has tripled, while court resources have languished.

The Administration’s detention priorities and essentially random DHS enforcement program are like running express trains at full throttle into an existing train wreck without any discernable plan for clearing the track!” You can read about it in my article in the latest edition of The Federal Lawyer.

Fourth, the immigration system relies far too much on detention. The theory is that detention, particularly under poor conditions with no access to lawyers, family, or friends, will “grind down individuals” so that they abandon their claims and take final orders or depart voluntarily. As they return to their countries and relate their unhappy experiences with the U.S. justice system, that supposedly will “deter” other individuals from coming.

Although there has been a downturn in border apprehensions since the Administration took office, there is little empirical evidence that such deterrence strategies will be effective in stopping undocumented migration in the long run. In any event, use of detention, as a primary deterrent for non-criminals who are asserting their statutory right to a hearing and their constitutional right to due process is highly inappropriate. Immigration detention is also expensive, and questions have been raised about the procedures used for awarding some of the contracts.

Fifth, we need an appellate court, the Board of Immigration Appeals, that functions like a real court not a high-volume service center. Over the past decade and one-half, the Board has taken an overly restrictive view of asylum law that fails to fulfill the generous requirements of the Supreme Court’s landmark decision in Cardoza-Fonseca and the Board’s own precedent in Matter of Mogharrabi. The Board has also failed to take a strong stand for respondents’ due process rights in Immigration Court.

Largely as a result of the Board’s failure to assert positive leadership, there is a tremendous discrepancy in asylum grant rates – so-called refugee roulette.” Overall grant rates have inexplicably been falling. Some courts such as Atlanta, Charlotte, and some other major non-detained courts have ludicrously low asylum grant rates, thereby suggesting a system skewed, perhaps intentionally, against asylum seekers. Perhaps not coincidentally, the Board has become totally “government-dominated” with no member appointed from the private sector this century.

Sixth, the DOJ selection process for Immigration Judges and BIA Members has become both incredibly ponderous and totally one-sided. According to a recent GAO study, it takes on the average nearly two years to fill an Immigration Judge position. No wonder there are scores of vacancies and an unmanageable backlog!

And, it’s not that the results of this glacial process produce a representative immigration judiciary. During the Obama Administration, approximately 88% of the Immigration Judge appointments came directly from government backgrounds. In other words, private sector expertise has been almost totally excluded from the 21^st Century immigration judiciary.

Seventh, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an “amateur night” aura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court.

III. ACTION PLAN

Keep these thoughts in mind. Sadly, based on actions to date, I have little hope that Attorney General Sessions will support due process reforms or an independent U.S. Immigration Court, although it would be in his best interests as well as those of our country if he did. However, eventually our opportunity will come. When it does, those of us who believe in the primary importance of constitutional due process must be ready with concrete reforms.

So, do we abandon all hope? No, of course not! Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns, my former students, and those who have practiced before the Arlington Immigration Court.

They form what I call the “New Due Process Army!” And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of “guaranteeing fairness and due process for all!”

What can you do to get involved now? The overriding due process need is for competent representation of individuals claiming asylum and/or facing removal from the United States. Currently, there are not nearly enough pro bono lawyers to insure that everyone in Immigration Court gets represented.

And the situation is getting worse. With the Administration’s expansion of so-called “expedited removal,” lawyers are needed at earlier points in the process to insure that those with defenses or plausible claims for relief even get into the Immigration Court process, rather than being summarily removed with little, if any, recourse.

Additionally, given the pressure that the Administration is likely to exert through the Department of Justice to “move” cases quickly through the Immigration Court system with little regard for due process and fundamental fairness, resort to the Article III Courts to require fair proceedings and an unbiased application of the laws becomes even more essential. Litigation in the U.S. District and Appellate Courts has turned out to be effective in forcing systemic change. However, virtually no unrepresented individual is going to be capable of getting to the Court of Appeals, let alone prevailing on a claim.

Obviously, the PIRC is a fantastic way to contribute to assertively protecting the due process rights of migrants. Internships and JLC positions at the Immigration Courts are also ways for law students and recent law grads to contribute to due process while learning.

As mentioned earlier, Mary and I have been working with groups looking for ways to expand the “accredited representative” program, which allows properly trained and certified individuals who are not lawyers to handle cases before the DHS and the Immigration Courts while working for certain nonprofit community organizations, on either a staff or volunteer basis. The “accredited representative” program is also an outstanding opportunity for retired individuals, like professors, teachers, and others who are not lawyers but who can qualify to provide pro bono representation in Immigration Court to needy migrants thorough properly recognized religious and community organizations.

Even if you are a lawyer not practicing immigration law, there are many outstanding opportunities to contribute by taking pro bono cases. Indeed, in my experience in Arlington, “big law” firms were some of the major contributors to highly effective pro bono representation. It was also great “hands on” experience for those seeking to hone their litigation skills.

Those of you with language and teaching skills can help out in English Language Learning programs for migrants. I have observed first hand that the better that individuals understand the language and culture of the US, the more successful they are in navigating our Immigration Court system and both assisting, and when necessary, challenging their representatives to perform at the highest levels. In other words, they are in a better position to be “informed consumers” of legal services.

Another critical area for focus is funding of nonprofit community-based organizations, like PIRC, and religious groups that assist migrants for little or no charge. Never has the need for such services been greater.

Many of these organizations receive at least some government funding for outreach efforts. We have already seen how the President has directed the DHS to “defund” outreach efforts and use the money instead for a program to assist victims of crimes committed by undocumented individuals.

Undoubtedly, with the huge emphases on military expansion and immigration enforcement, to the exclusion of other important programs, virtually all forms of funding for outreach efforts to migrants are likely to disappear in the very near future. Those who care about helping others will have to make up the deficit. So, at giving time, remember your community nonprofit organizations that are assisting foreign nationals.

Finally, as an informed voter and participant in our political process, you can advance the cause of Immigration Court reform and due process. For the last 16 years politicians of both parties have largely stood by and watched the unfolding due process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

The notion that Immigration Court reform must be part of so-called “comprehensive immigration reform” is simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. It’s time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

IV. CONCLUSION

In conclusion, I have shared with you the U.S. Immigration Court’s noble due process vision and the ways it currently is being undermined and disregarded. I have also shared with you some of my ideas for effective court reforms that would achieve the due process vision and how you can become involved in improving the process. Now is the time to take a stand for fundamental fairness! Join the New Due Process Army! Due process forever!

Thanks again for inviting me and for listening. Congratulations again to our award winners and newly commissioned Generals of the New Due Process Army.

(06-08-17)

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

Congratulations to these Light of Liberty Awards winners and newly commissioned Generals in the New Due Process Army:

ATTORNEY OF THE YEAR:

Rosina Stambaugh, Esquire

LAW FIRM OF THE YEAR

Asylum & Human Rights Clinic, University of Connecticut School of Law

CONTINUING COMMITMENT TO JUSTICE INDIVIDUAL:

Professor Jill Family,

Widener University Delaware Law School

INTERPRETER OF THE YEAR

Rosalyn Groff

COMMUNITY VOLUNTEER OF THE YEAR:

Dr. Anne Middaugh

CONTINUING COMMITMENT TO JUSTICE ORGANIZATION:

Philadelphia Bar Foundation

VOICE OF COURAGE:

Josia Nunes

Out in the audience was superstar lawyer/social worker Hannah Cartwright, a “Charter Member” of the New Due Process Army, now on the legal staff at the PIRC. Hanna, a distinguished Catholic University Law grad, served as a Legal Intern at the Arlington Immigration Court and a Judicial Law Clerk at the Philadelphia Immigration Court.

Pictures and other news from this wonderful event to follow.

PWS

06-08-17

BREAKING: NPR’s Beth Fertig Exposes Administration’s Immigration Court Due Process Disaster — Taxpayers Billed For Sending Judges To Hustle Detainees Through Court Without Lawyers, Leaving More Represented Cases At Home To Rot! — Backlogs Mushroom As Administration Plays Games With Human Lives!

http://www.wnyc.org/story/missing-new-york-immigration-judges/

Fertig reports:

“In the middle of May, paper notices were posted on the walls of the federal building in lower Manhattan announcing the absence of several immigration judges. Some were out for a week or two, while others were away for six weeks. The flyers said their cases would be rescheduled.

The Executive Office for Immigration Review, which runs the immigration courts, would not comment on the judges’ whereabouts. It cited the confidentiality of personnel matters. But after WNYC asked about these missing judges, many of the paper notices were taken off the walls of the 12th and 14th floors, where hearings are held in small courtrooms.

It’s no secret that President Donald Trump’s administration has been redeploying judges to detention centers near the southern border to speed up the processing of cases. After contacting numerous immigration attorneys down south, as well as retired judges and others, WNYC was able to crowdsource the judges’ locations. At least eight of New York City’s 29 immigration judges had been sent to Texas and Louisiana since March to conduct hearings in person or by video. Six judges were out for different parts of the month of May, alone.

“NYC

The federal building is home to the nation’s busiest immigration court, with a backlog of 80,000 cases. By redeploying so many judges in such a short period of time, immigration lawyers fear the delays will grow even longer. Meanwhile, attorneys near the border question whether these extra judges are even necessary.

Among other matters, judges at detention courts are supposed to hear cases involving people who crossed the border illegally. Yet those numbers have declined since Trump took office. That’s why local attorneys are cynical about the surge.

“I don’t really think that they need all these judges,” said Ken Mayeaux, an immigration lawyer in Baton Rouge.

Mayeaux said what’s really needed there are more immigration attorneys. As federal agents arrest an increasing number of immigrants who are already in the U.S. without legal status, they’re sending them to southern detention centers that are pretty isolated. The ones in Oakdale and Jena, Louisiana, are hours west of Baton Rouge and New Orleans, where the vast majority of the state’s immigration advocates are concentrated, said Mayreaux.

“To ramp things up in one of the places that has the lowest representation rates in the United States, that’s a due process disaster,” he said.

Data from the Transactional Records Access Clearinghouse at Syracuse University confirms that immigrants may only wait a couple of months for their deportation case to be completed in these detention centers near the border. But in New York, the wait to see an immigration judge is 2.4 years.

So why move judges from a clogged and busy court system in New York to the border region, where immigration cases are already moving swiftly?

“In this particular instance, it’s a virtuous circle from the perspective of the administration,” explained Andrew Arthur, a former immigration judge.

Arthur is a resident fellow at the Center for Immigration Studies. It’s a think tank that wants to limit immigration, though it’s been branded a hate group by the Southern Poverty Law Center. During the Obama administration, Arthur said too many immigrants were let out of detention and waited years for their cases to be heard. He said moving more judges to the border will prevent that from happening.

“Because the quicker that you hear the cases the less likely that an individual is to be released,” Arthur said. “Therefore the less likely another group of individuals are to attempt to make the journey to the United States.”

Another former immigration judge, Paul Wickham Schmidt, said the Obama administration tried something similar by fast-tracking the cases of Central American migrants in 2014. But he said it wound up scrambling the judges’ dockets and was counterproductive. He was redeployed from his home court in Virginia and estimates he had to reschedule a hundred cases in a week.

“Nobody cares what’s happening on the home docket,” he said. “It’s all about showing presence on the border.”

Not all judges assigned to the border are physically present. Mana Yegani, an immigration lawyer in Houston, said she’s seen several judges — including a few from New York — at a detention center where cases are done by video teleconference.

“We never see the prosecutor’s face, it’s just a voice in the background,” she explained. “It’s just not a fair process for our clients and I don’t think the judges can be efficient the way they’re supposed to. They take an oath to be fair and to uphold the Constitution and due process, and I think the way the system is set up it really hinders that.”

A new audit of the immigration courts by the Government Accountability Office questioned whether video teleconferences have an impact on outcomes and said more data should be collected.

Some attorneys believe the reassignments are temporary to see if border crossings continue to ebb. The Executive Officer for Immigration Review won’t comment on that, but spokesman John Martin said the agency will hire 50 new judges and “plans to continue to advertise and fill positions nationwide for immigration judges and supporting staff.”

In the meantime, there’s no question that shifting judges away from New York is having an impact on real people.”

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

Read Beth’s entire article, including the story of one “real” asylum applicant waiting patiently for a hearing that almost didn’t happen.

The due process farce continues, at taxpayer expense, while the U.S. Immigration Courts are being treated as an enforcement arm of the DHS. Aimless Docket Reshuffling (“ADR”) denies due process at both the “sending courts” and “receiving courts.” When, if ever, will Congress or the Federal Courts step in and put an end to this travesty of justice and mockery of our constitutional requirement for due process! In the meantime, what’s happening in the Immigration Courts is a continuing national disgrace.

PWS

06-06-17

NYT: Trump, Sessions Split Brewing? — Apparently The Donald Expected AG To Be Complete Toady — Unpleasantly Suprised With Independence!

https://www.nytimes.com/2017/06/05/us/politics/trump-discontent-attorney-general-jeff-sessions.html?emc=edit_nn_20170606&nl=morning-briefing&nlid=79213886&te=1&_r=0

Peter Baker & Maggie Haberman report:
“WASHINGTON — Few Republicans were quicker to embrace President Trump’s campaign last year than Jeff Sessions, and his reward was one of the most prestigious jobs in America. But more than four months into his presidency, Mr. Trump has grown sour on Mr. Sessions, now his attorney general, blaming him for various troubles that have plagued the White House.

The discontent was on display on Monday in a series of stark early-morning postings on Twitter in which the president faulted his own Justice Department for its defense of his travel ban on visitors from certain predominantly Muslim countries. Mr. Trump accused Mr. Sessions’s department of devising a “politically correct” version of the ban — as if the president had nothing to do with it.

In private, the president’s exasperation has been even sharper. He has intermittently fumed for months over Mr. Sessions’s decision to recuse himself from the investigation into Russian meddling in last year’s election, according to people close to Mr. Trump who insisted on anonymity to describe internal conversations. In Mr. Trump’s view, they said, it was that recusal that eventually led to the appointment of a special counsel who took over the investigation.

Behind-the-scenes frustration would not be unprecedented in the Oval Office. Other presidents have become estranged from the Justice Department over time, notably President Bill Clinton, who bristled at Attorney General Janet Reno’s decisions to authorize investigations into him and his administration, among other things. But Mr. Trump’s tweets on Monday made his feelings evident for all to see and raised questions about how he is managing his own administration.

“They wholly undercut the idea that there is some rational process behind the president’s decisions,” said Walter E. Dellinger, who served as acting solicitor general under Mr. Clinton. “I believe it is unprecedented for a president to publicly chastise his own Justice Department.”

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

Read the complete article at the link.

I certainly never would have accused Trump of rationality.

It seems it doesn’t take much to go from hero to goat with Trump — another sign of an unbalanced mind at the helm of our country. I’ve been a frequent critic of Jeff Sessions for his anti-immigrant views, white nationalist associations, and totally “gonzo” views and actions on civil rights and immigration enforcement. But, it sounds like he has been trying to do the right thing in this situation and offering the President some wise counsel. I guess there is no surer way of getting on Trump’s “hit list” than to act with some rationality and integrity.

It’s still a problem if Sessions isn’t able to control Trump’s public behavior in litigation. The head of a law firm can’t stand by and let a client, even the big one, publicly abuse and undermine his or her partners and associates.

In private practice, you sometimes have to “fire” an unruly client. In Government, you can’t fire the President, but you can “take a walk” and let folks know why you are doing it. Ultimately, Sessions (and Rosenstein, and probably Associate AG Rachel Brand) might have to decide whether to be loyal to the President or to the Department of Justice and the integrity of our justice system.

Shouldn’t really be much of a dilemma. After all, no politico expects to serve indefinitely, and each member of this trio should be readily employable in the private sector.

PWS

06-06-17

“IMMIGRATION COURTS — RECLAIMING THE VISION” — Read My Article In The Latest Federal Bar News!

Here is the link:

immigration courts

And, here’s an excerpt:

“Our immigration courts are going through an existential crisis that threatens the very foundations of our American justice system. I have often spoken about my dismay that the noble due process vision of our immigration courts has been derailed. What can be done to get it back on track?

First, and foremost, the immigration courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers, which are highly ineffective in any event, must end. That’s unlikely to happen under the Department of Justice—as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the American Bar Association and the Federal Bar Association, would be best.

Clearly, the due process focus has been lost when officials outside the Executive Office for Immigration Review have forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle (the Central American countries of El Salvador, Honduras, and Guatemala) who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases is not only unfair to all, but has created what I call “aimless docket reshuffling” that has thrown our system into chaos.

Evidently, the idea of the prioritization was to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we don’t want you” message to asylum seekers. But, as a deterrent, this program has been spectacularly unsuccessful. Not surprisingly to me, individuals fleeing for their lives from the Northern Triangle have continued to seek refuge in the United States in large numbers. Immigration court backlogs have continued to grow across the board, notwithstanding an actual reduction in overall case receipts and an increase in the number of authorized immigration judges.”

I encourage you to read the entire article.

Additionally, this entire issue of The Federal Lawyer is devoted to Immigration Law. Kudos to Judge Lawrence O. Burman of the Arlington Immigration Court and Judge Robin Feder of the Boston Immigration court for their key roles in FBA leadership and for inspiring this effort. There are four other great articles that will help you understand what is happening today in this most important area. Check them all out at this link:

http://www.fedbar.org/magazine.html

Finally, if you aren’t currently a member of the Federal Bar Association (“FBA”), please join the FBA and the Immigration Section today! The price is very reasonable, you get access to The Green Card (the Immigration Section newsletter, Edited by Judge Burman) and some other great educational materials, and you support the effort for due process, collegiality, and badly needed U.S. Immigration Court Reform, which the FBA advocates. The current “powers that be” are not going to fix the broken U.S. Immigration Court System without outside involvement and, ultimately, Congressional action. This won’t happen by itself. So, if like me, you are appalled and dismayed by what has happened to due process in our U.S. Immigration Court system, now is the time to get involved and work to change it!

Also, check out my previous blogs on the recent FBA Immigration Seminar in Denver.

http://wp.me/p8eeJm-O1

http://wp.me/p8eeJm-Oa

http://wp.me/p8eeJm-OU

http://wp.me/p8eeJm-P4

PWS

06-05-17

“AIMLESS DOCKET RESHUFFLING” (“ADR”) IN NEW YORK — NPR’s Beth Fertig Exposes Due Process/Management Abuses By Obama & Trump Administrations!

http://www.wnyc.org/story/why-new-yorks-immigration-court-even-busier-fewer-judges-under-trump/

Fertig reports:

“There are 29 immigration judges assigned to court rooms in the Federal Building in Lower Manhattan. But as the number of pending cases grew from about 70,000 in January to nearly 80,000 this spring, more and more people have been coming to court only to discover they don’t have judges.

On a Tuesday morning in May, Alin Guifarro expected to attend a hearing with his 18-year-old son, Jose David Rodriguez. The teen came from Honduras last year to join his father and is trying to get legal status in the U.S.

But when they went to the 12th floor and scanned the long list of names with appearances scheduled that day, Guifarro saw his son’s case wasn’t assigned to a judge. Confused, he went to the clerk’s office and was told he would eventually get a letter in the mail about a new court date.

Guifarro was frustrated. “I came over here driving 2 ½ hours for nothing,” he said, referring to his journey from his home in Mastic, Long Island.

This father and son aren’t the only ones whose immigration cases have been postponed lately.

“In the last two months this has happened every week,” said Bryan Johnson, an immigration lawyer based on Long Island. Many of his clients are seeking asylum, and he said some have already been waiting a couple of years. With extra delays, he said, “if they have children who are abroad, that will delay family unification or spousal unification if their spouse is abroad.”

On a single day in May, when almost 400 hearings were scheduled to take place in immigration court, WNYC counted 60 people who didn’t have judges.

The Executive Office for Immigration Review runs the nation’s immigration courts. It says staffers typically mail a notice if a judge is out or a case is delayed, but they don’t always go out in time. As for why people are coming to court without judges, the agency explained that they are technically assigned to ”visiting judges.” But it acknowledged these judges don’t actually exist.

“The concept of ‘visiting judges’ is for internal case management,” said E.O.I.R. spokesman John Martin. “When judges retire, or temporarily stop hearing cases due to illness, the New York City Immigration Court will assign these dockets to a ‘visiting judge’ in order to maintain continuity of these cases. As new immigration judges are hired and officially placed at their respective immigration court locations, these ‘visiting judge’ dockets in those locations are reassigned to them.”

Even after a recent hire, New York City has only 29 immigration judges, compared to 31 at this time last year.

The backlog in immigration courts isn’t new. There are almost 600,000 pending cases, nationally. The problem started well before President Donald Trump took office.”

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Read Beth’s complete article at the link.

A recent GAO report highlighted and quantified endemic management issues with the DOJ’s stewardship over the U.S. Immigration Courts, particularly in hiring new Immigration Judges which takes an astounding average of 742 days. http://wp.me/p8eeJm-Uh

Then, there are the retirements. It’s hardly rocket science that an aging workforce in high-stress jobs might retire in large numbers. I ran “Immigration Judge retirements” into my search engine and got 9 articles, right off the bat. Try it yourself.

Additionally, there is the practice of both Administrations of mindlessly jamming more new cases in the front of the system without a rational plan for completing the ones already in it. That’s followed by reassigning Immigration Judges (like they were assembly line workers) from existing dockets of cases scheduled for final hearings to new dockets of Not Quite Ready For Prime Time (“NQRFPT”) cases. And to cap it off, Secretary Kelly, egged on by Jeff Sessions, has told DHS agents to arrest anyone the feel like arresting without any regard for reasonable priorities or space on already overcrowded court dockets!

And, while we’re at it, let’s stuff more non-criminals into dangerous, expensive, and unneeded immigration detention, thereby turning them into self-created emergency situations, rather than thinking creatively about cheaper, more humane, and more effective methods of getting non-dangerous folks through the system in a reasonable manner.

And you gotta love imaginary “visiting judges.” Visiting from where, “The Twilight Zone?” Almost as good as “warehousing” tens of thousands of cases on a single day in November 2019. No wonder that once in extreme frustration I referred to this administrative morass as “Clown Court!”🤡

No, it’s not all the fault of EOIR bureaucrats, most of whom mean well and are simply caught up in a “built for failure” system. But, it is the fault of the DOJ whose politicized management of the Immigration Courts has been a disaster since the beginning of this century. And, even if you removed politics from the equation, the DOJ obviously lacks the basic administrative competence to run a complicated, high volume court system. Ultimately, Congress must assume the responsibility for allowing this travesty to continue to exist. An independent Immigration Court outside the Executive Branch is long overdue.

But, other than that, it’s a great system!

Stay tuned! Tomorrow, Beth will tell us what judges pulled off their existing dockets find when they get to their “detail courts.” I can’t wait to hear what she found out!

PWS

06-05-17

ANTH 375 @ BELOIT COLLEGE: Professor Jennifer Esperanza & Her Students Blaze Path To Understanding Migration In The Liberal Arts Context — Every College In America Should Be Teaching These Essential Skills!

Back in 1973, when I graduated from the University of Wisconsin Law School and joined the staff of the Board of Immigration Appeals (“BIA”) at the U.S. Department of Justice, nary a law school in the U.S. taught a course in immigration law. The handful of law school courses on the subject were taught almost entirely by Adjunct Professors. Indeed, shortly after I joined the Board, they sent me to what was then the premier law school immigration course at Georgetown Law taught by none other than Charles Gordon, the legendary General Counsel of the “Legacy” INS.

Today, thanks to a great extent to the efforts of such noted “scholar/public servants” as Professor David Martin of the University of Virginia Law School, Professor Alex Aleinikoff, former Dean of Georgetown Law, and Professor Stephen Legomsky of Washington University Law School, some form of immigration law or immigration clinic is offered at most major U.S. Law Schools.

But, a serious void remains at the most critical level of education: undergraduate institutions. However, at Beloit College in Beloit, Wisconsin, Professor Jennifer Esperanza is blazing the way for the future. Her “ANTH 375: Migrants, Immigrants, and Refugees” Summer Session class is jumping head-on into creating constructive dialogue, understanding, and action on the most important issue facing America today: migration.

I had the pleasure of working with Professor Esperanza and her fourteen “super students” as a “Guest Professor” during three days in late May. The students hailed from different backgrounds and entered the class with varying levels of immigration experience and interest.

Some were there because of their own backgrounds or prior work with migrants; others were there . . . well, just because they were there. But, funny thing, by the end of my three days I couldn’t tell the difference. Everyone pitched in as a team, demonstrated sharp analytical skills, asked incisive questions, showed creativity and originality, and made spectacular group presentations on some very tough subjects. In other words, it was all the things I love: fairness, scholarship, timeliness, respect, and teamwork!

Among our exercises: we watched and discussed the documentary “Credible Fear;” broke the group into two teams which designed and presented their own refugee systems based on competing “Mother Hen” and “Dick’s Last Resort” principles; and read, analyzed, and discussed two cases I had been involved in: the BIA’s landmark precedent Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996) recognizing for the first time “female genital mutilation” (“FGM”) as a basis for asylum in the United States, and another decision (which was published on the internet) from my time at the Arlington Immigration Court where I granted “particular social group” asylum to a family from El Salvador.

I teach as an Adjunct Professor at Georgetown Law, one of the top law schools in the country. To my pleasant surprise, I found that Esperanza’s Beloit students were able to discuss the issues in a manner very similar to the class dialogue produced by some really great second-year, third-year, and graduate law students. Amazing!

I’m reproducing the results of the “Create Your Own Refugee System” exercise below, along with a class picture and some other pictures of my stay at Beloit (where my son-in-law, Daniel Barolsky, is a Professor of Musicology).

I also note that Professor Esperanza’s system and “real-world-oriented” approach to undergraduate education produces results, as in jobs in the real world! As featured in the Fall 2015 issue of Beloit College Magazine, Esperanza’s students were making an immediate difference: Jessica Slattery ’12, as a paralegal for the New York Legal Assistance Group in the Bronx, NY; Dan Weyl ’10, with the Heartland Alliance, an international human rights organization that provides resources for LGBT refugees resettling in the United States (as a footnote, following retirement I have been helping out the Heartland Alliance Washington, DC, office with various projects); Jane Choi ’14, working on the political team at the British High Commission in Cape Town, South Africa; Key Ishii ’12, working with African refugees in Israel; Angela Martellaro ’10, a licensed real estate agent at Chief Properties in Kansas City, MO, specializing in helping refugee families from Myanmar buy their first home; and Nikki Tourigny ’10, working for Hot Bread Kitchen, a wholesale nonprofit bakery in NYC that trains immigrant and minority women to work in the restaurant industry. Impressive!

On a personal note, I graduated in 1970 from Lawrence University, just up the road from Beloit in Appleton, WI. Like Beloit, Lawrence is a member of the Associated Colleges of the Midwest.

I majored in History, minored in German, and spent a semester abroad in Germany. I found that a broad research and writing intensive, liberal arts eduction that promoted critical analysis and effective dialogue was the best possible preparation for all that followed: U.W. Law School, government attorney, private practice of immigration law, and several Senior Executive Service positions with the U.S. government, as well as Adjunct Professor positions. I spent the last 21 hears of my career as a U.S. Immigration Judge at the appellate and trial levels and served as Chairman of the BIA for six years. I can’t imagine a better preparation for the global perspective, analytical ability, and research and writing skills needed for judicial work than what I received at Lawrence. I just wish that someone like Professor Esperanza had been teaching her innovative approach to cultural anthropology when I was an undergrad!

Finally, I might add that Professor Esperanza and her husband Paul, who works in Administration at the College, are part of a a group of talented young professionals, which includes my daughter Anna, who teaches middle school English in the Beloit Public Schools, her husband Daniel, and their children, who have chosen to make their homes in Beloit, near the College. They enjoy and actively participate the in Beloit community and are big supporters of the “Beloit Proud” movement.

Here’s the pictorial version of my “tenure” at Beloit.

ANTH 375: Migrants, Immigrants, and Refugees” – Professor Jenn Esperanza — May 2017 — Beloit College, Beloit WI

Back Row:

Dan Arkes, Me, Joe Enes, “The Talking Statue,” Mark Hauptfleisch, Cynthia Escobedo, Yoon Ja Na, Rosa Ennison, Keila Perez, Gabe Perry

Front Row:

Jamie Manchen, Professor Jennifer Esperanza, Leanna Miller, Terra Allen, Abby Segal, Matt Tarpinian

Here are the results of the “Create Your Own Refugee System” Exercise. Click on the links for some really “great stuff:”

For “Dick’s Last Resort:”

The GreatHermetic Principles

For the “Mother Hens:”

ANTH 375- Mother Hen Refugee Program

And, here’s what the class looked like “in action,” as well as a picture of our dog Luna in front of the historic “Middle College Building” at Beloit.

PWS

06-04-17

H-1B NONIMMIGRANTS: A Needed Visa In Need Of Reform — It’s Essential For Our Economy, But It’s Wrong When US Workers Are Displaced & Degraded — A Plea For Reform By One Who Has Benefitted From The System But Sees The Abuses!

http://www.cnn.com/2017/06/04/us/understanding-the-h-1b-visa/index.html

Moni Bassu writes in CNN:

“Palmer and other H-1B reformers want accountability.

They say US companies must be required to document their searches to fill positions with American workers. Employers must pay prevailing wages and be prevented from subcontracting or outsourcing H-1B jobs.

Reform advocates are pushing for a system of government enforcement and oversight of the H-1B regulations, not one that is reliant on whistleblowers to expose abuse.

Technology is here to stay. And it is changing at warp speed. The demand for smart talent is not going away. That’s why even the biggest critics of H-1B are the most ardent backers of reform, not elimination.

What I hear them saying is the system ought to work the way it used to, when my father obtained an H-1 visa. He was hired for a job he was uniquely qualified for, and he was compensated with a decent wage.

No one wants to see Americans lose their jobs unfairly, and if my father were still alive, I know he’d be troubled by what I learned about the current H-1B program.

I also know he would be heartened to see that some of the most ardent backers of visa reform are Indian Americans. After all, we are the ones who have most reaped the rewards of H-1B.”

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

The full article, which gives actual examples of both the benefits and the abuses of the H-1B program is a “must read.” Get it at the link.

Several thoughts. I was very critical, and still am, of House Immigration Subcommittee GOP Members for starting off with controversial, “in your face,” and unneeded enforcement-only bills. See http://wp.me/p8eeJm-Qw

Why not instead start with something bipartisan that would be good for America, like H-1B reform. Chairman Grassley in the Senate has expressed strong interest in reforming the H-1B category to eliminate abuses. And, it appears that most major U.S. employers who use H-1Bs also see the need for reform to preserve and improve the program.

Additionally, things like investment visa “EB-5” reform also appear likely to attract support from both sides of the aisle in both houses.

A second thought, why don’t U.S. companies, particularly those started or run by immigrants, which use H-1Bs start the reforms now. “Reverse” the process. Use highly talented H-1B workers to train U.S. workers, particularly in places where the economic rebound has not yet reached, for whatever reason.

For example, in a recent blog dealt with the situation in the small city of Gillette, WY. http://wp.me/p8eeJm-UY The folks seemed nice, optimistic, and interested in a brighter future for their community. But, with or without Trump and his environment-busting policies, coal mining as a way of life is on the way out. I can’t imagine that too many of the younger generation are hanging around places like Gillette.

Why not go in and establish some tech centers using H-1Bs as trainers. Sure, working on a computer in an office isn’t everyone’s cup of tea. I get that. But, it is something that can be done from anywhere.

And, the costs of doing business, at least initially, are likely to be less in a place like Gillette. Increased economic activity brings with it other needs: buildings, houses, markets, auto dealers, repair shops, HVAC technicians, public servants, schools, teachers, etc. So, there could be something for everyone, even those who don’t want to work at a desk all day.

Maybe, it’s time for those who want immigration reform to stop talking and whining and start doing. Things that demonstrably work and help folks out build their own bases of support. That’s better than trying to convince folks with statistics and pie charts!

PWS

06-05-17

BREAKING: Out Of Control “Tweeter In Chief” Continues To Undermine Own Case! — Basically Admits Revised Order Was A Ruse!

http://www.cnn.com/2017/06/05/politics/trump-travel-ban-courts/index.html

CNN reports:

“(CNN)President Donald Trump on Monday emphatically referred to his executive order on immigration as a “travel ban” and said his Justice Department should not have submitted a “watered down, politically correct version” to the Supreme Court.

Trump’s suggestion that changes to the ban — which, among other things, temporarily restricts travel to the US from several Muslim-majority countries — were due to political correctness could hamper his administration’s legal argument that the executive order did not target Muslims. As a candidate, Trump called for a “total and complete shutdown” of Muslim immigration to the United States.
Trump's terror tweets make a statement
Trump’s terror tweets make a statement
In a string of tweets, Trump reiterated comments he made in light of the London terror attacks that the travel ban was necessary.
“People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN,” he tweeted at 6:25 a.m. ET.
“The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.” he added.”

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

Read the entire breaking story at the link!

Gotta feel for the pros in the SG’s Office trying to defend the Prez while maintaining some semblance of credibility with the Court. Talk about the “Client from Hell!”

Back to two “soft predictions” that I had made earlier.

Frist, every time Trump tweets or throws gratuitous barbs at the Court, the chances increase that the Supremes will leave this mess to the lower Courts to sort out. There are also some practical difficulties, since the “Travel Ban” was supposed to be temporary and will soon expire by its own terms. Why mess with this mess? As noted in a previous blog, even some in the GOP are starting to acknowledge the untenability of Trimp’s position on the Travel Ban.

Second, over the course of an Administration, the Solicitor General’s Office is likely to lose its hard-earned credibility with the Supremes by defending the off the wall actions of a serial liar. Yeah, the Supremes take up the cases of, and even rule in favor of, some pretty scuzzy individuals. But, lack of candor before the courts and attempting to “bully” the judiciary are strongly frowned upon. At some point, courts at all levels hold the attorney responsible for his or her client’s conduct.

And, it is a mark of Jeff Sessions’s unsuitability to be Attorney General that he can’t get his primary client “under control.”

PWS

06-05-17

NOT YOUR FATHER’S FOURTH CIRCUIT: Technology, Innovation, & A More Diverse Judiciary Change Tribunal Sitting In The Former Capital Of The Confederacy!

https://www.washingtonpost.com/opinions/after-a-ruling-on-trumps-travel-ban-all-eyes-are-on-the-4th-circuit/2017/06/02/b7a555f2-4545-11e7-bcde-624ad94170ab_story.html?utm_term=.825d55d2e2d7

Carl Tobias reports for the Washington Post.

“The U.S. Court of Appeals for the 4th Circuit is a court in transition. The Richmond-based appeals court was long considered the most ideologically conservative of the 12 regional circuits, the intermediate appellate tribunals across the country that are the courts of last resort for 99 percent of appeals. When a case heard in Maryland and Virginia federal district courts is appealed, it goes to the 4th Circuit. This is the court that has resolved appeals involving Maryland gun laws and Virginia transgender students’ rights, for example.

And change has come to the 4th Circuit.

This was recently on display when the entire court — all judges in active service who did not have conflicts of interest — substantially affirmed a Maryland district court’s nationwide injunction that blocked enforcement of President Trump’s revised travel ban. Notably, a majority of the judges proclaimed that the Constitution “protects Plaintiffs’ right to challenge the Executive Order that in text speaks in vague words of national security, but in context drips with religious intolerance, animus and discrimination.”

For decades, the 4th Circuit was a conservative stronghold. Seated in the former capital of the Confederacy, the court hears appeals in the Lewis F. Powell Jr. Courthouse, a building that served as the official headquarters for Confederate President Jefferson Davis. The circuit retains Southern manners. For instance, judges descend from the bench after oral arguments to shake the hands of counsel.

President George W. Bush tried to continue the court’s conservative legacy when numerous vacancies materialized in his administration. However, the White House insisted on pressing for confirmation of nominees whom many Democratic senators considered outside the mainstream, even after Democrats had captured a Senate majority in November 2006. Political machinations left four vacancies at the Bush administration’s close, enabling President Barack Obama to appoint numerous judges. The court now has nine members whom Democratic presidents appointed, five whom Republican presidents confirmed and Chief Judge Roger Gregory, whom President Bill Clinton recess-appointed and Bush confirmed.

Two recent developments in the travel ban appeal demonstrate change in the court. First, all of the active judges without conflicts heard the appeal, called an initial en banc proceeding, which is so extraordinary that the last one was decades ago. One judge, not the parties, suggested this procedure, and the court requested the litigants’ views on an en banc process, while a circuit majority favored it apparently because of the appeal’s exceptional public importance.

Another sign of change was the court’s April 27 announcement that the argument would be livestreamed. Allowing “cameras in the courtroom” has proved extremely controversial at the Supreme Court, which has never permitted live broadcast of arguments. Indeed, since-retired Justice David Souter famously declared “over my dead body.” A few lower federal courts allow broadcasts. The 9th Circuit began livestreaming all oral arguments in 2015.”

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

Read the complete article at the above link.

As a U.S. Immigration Judge sitting in the Fourth Circuit, I credited the Fourth Circuit’s carefully-crafted asylum jurisprudence and overriding concern for due process and fairness for asylum seekers as reasons why asylum grant rates were relatively high in the Arlington and Baltimore Immigration Courts (of course, along with my judicial colleagues’ careful attention the what the Fourth Circuit was saying; new Fourth Circuit rulings were a frequent topic of our lunch conversations.)

Apparently, however, the word didn’t reach as far south as the Charlotte Immigration Court, where advocates regularly complain of the rights of asylum seekers being “steamrolled.” To date, the BIA has failed to step in and fix the Charlotte situation. And, I wouldn’t expect it to happen with Jeff Sessions in charge of the U.S. Immigration Courts.

PWS

06-04-17

Should 350,000 El Salvadorans & Hondurans With TPS Start Packing Their Bags?

http://abcnews.go.com/International/wireStory/homeland-security-chief-signals-shift-immigration-program-47778916

Jennifer Kay reports for the AP:

“Immigrants who have legally lived and worked in the U.S. since disasters in their countries years ago may have to start thinking about going home, the U.S. Homeland Security chief said Thursday.

In an interview with The Associated Press, Secretary John Kelly sent strong signals that immigration benefits known as “temporary protected status” should not be as open-ended as they have become for tens of thousands of people from Haiti and Central America.

“The point is not that there be a complete recovery of all ills in the country,” Kelly said. “The point is, whatever the event is that caused TPS to be granted — that event is over, and they can return.”

That might shock 86,000 immigrants from Honduras and another 263,000 from El Salvador, who constitute the vast majority of the program’s current beneficiaries.

The Hondurans, along with more than 5,000 immigrants from Nicaragua, became eligible for the temporary protections in 1999 because of destruction from Hurricane Mitch a year earlier. Immigrants from El Salvador were included in 2001 after a series of earthquakes.

Immigrants from those three countries make up 80 percent of the 435,000 people from 10 nations currently eligible. Their status has been renewed every 18 months, and it will be up for renewal again early next year.

Kelly spoke with AP in Miami a day after meeting with Haiti’s president to discuss the return of roughly 50,000 Haitians to the long-troubled Caribbean country. He joined Florida Gov. Rick Scott at the National Hurricane Center to mark the start of hurricane season Thursday.

Kelly said he has not yet discussed ending temporary status with the Central American countries’ leaders. However, he emphasized that those privileges were intended to be temporary, even though they have not been administered that way.

“People in my position automatically — without thinking about it very much, apparently — just simply extended it,” Kelly said. “They weren’t taking the same approach to the law as I am.”

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Read the complete article at the link.

A few problems here.

First, Hondurans with TPS have been in the U.S. continuously since 1999, El Salvadorans since 2001. Most of them have homes, jobs, and U.S. citizen kids. They are members of our society. Are we really going to send them home after they have been here for decades in many cases?

Second, the last time a termination of these programs was considered was during the Clinton Administration. At that time, the Governments of El Salvador and Honduras went berserk, telling the State Department that return of that many individuals in a short period of time could destabilize their economies and their political systems. In plain terms, those countries could collapse. Moreover, money sent home by El Salvadorans and Hondurans with TPS status was basically propping up the economies of those countries.

Third, some TPS individuals are under final orders of removal. In theory, they would become removable immediately if they failed to depart after termination of the programs. But, they could move to reopen Deportation or Removal Proceedings if circumstances in their cases have materially changed, which is quite possible. Moreover, many, probably the vast majority, of those with TPS either 1) were never place in Removal Proceedings, or 2) had such proceedings “administratively closed” prior to a decision on the merits by an Immigration Judge. In both of these situations, individuals would have to be placed back on the Immigration Courts’ Master Calendar (that is arraignment) dockets.

Given the current 600,000 case backlog in Immigration Court, and that many Immigration Judges are scheduling new non-detained cases for “individual hearing” dates three, four, or more years from now, most of these cases wouldn’t even be heard on the merits until well after the end of President Trump’s current term.

By that time, individuals will have been in the U.S. for almost a quarter of a century. Many will have adult U.S. citizen children who can petition for them for permanent immigration.

Eventually, folks here from El Salvador and Honduras will have to be given some type of permanent or semi-permanent status, with or without a “path to citizenship.” Until then, they are working, paying taxes, and are an asset to the U.S. and their communities. Because of the nature of TPS, those relatively few who do commit one felony or two misdemeanors are arrested, detained, and removed promptly, unless they qualify for additional relief. And, the Government apparently makes money from the fees generated by extensions of TPS status and work authorization.

So, regardless of the original legal framework, TPS is one of the most successful and beneficial programs that DHS runs right now. Better not to mess with it unless you have a better idea. And, better ideas on immigration are not a strong point of the Trump Administration generally or Secretary Kelly, specifically.

Stay tuned.

PWS

06-03-17

INTRODUCING NEW COMMENTATOR — Hon. Jeffrey Chase — “Matter Of L-E-A: The BIA’s Missed Chance” — Original For immigrationcourtside!

Hi immigrationcourtside.com readers:

I am delighted to provide an original article by my good friend and colleague the Honorable Jeffrey Chase, who recently joined us in the ranks of the “retired but still engaged.” Judge Chase is a former U.S. Immigration Judge in New York, a former Senior Attorney Adviser at the BIA, and a former sole immigration practitioner in New York. He’s also a gentleman, a scholar, and an immigration historian. In a subsequent post I’ll be providing some links to parts of the “Chase Immigration History Library” which has previously been published by our friend and former colleague Judge Lawrence O. Burman in the FBA’s The Green Card.

Welcome to retirement and to immigrationcourtside, Judge Chase! We live in interesting times. Enjoy the ride.

Now, for your reading pleasure, here’s the complete original version of Judge Chase’s article about a recent BIA precedent. Enjoy it!

Matter of L-E-A-

Matter of L-E-A-: The BIA’s Missed Opportunity

Jeffrey S. Chase

On May 24, the Board of Immigration Appeals published its long-anticipated precedent addressing family as a particular social group, Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017). Thirteen amicus briefs were received by the Board addressing the issue of whether a “double nexus” is required in claims based on the particular social group of family. The good news is that the Board did not create a “double nexus” requirement for family-based PSG claims. In other words, the decision does not require an asylum applicant to prove both their inclusion in the social group of X’s family, and then also establish that X’s own fear is on account of a separate protected ground.

Nevertheless, the resulting decision was highly unsatisfying. The Board was provided a golden opportunity to adopt the interpretation of the U.S. Court of Appeals for the Fourth Circuit, which has held persecution to be “on account of” one’s membership in the particular social group consisting of family where the applicant would not have been targeted if not for their familial relationship. Such approach clearly satisfies the statutory requirement that the membership in the particular social group be “at least one central reason for persecuting the applicant.” If the asylum seeker would not have been targeted if not for the familial relationship, how could such relationship not be at least one central reason for the harm? L-E-A- rejected this interpretation, and instead adopted a much more restrictive “means to an end” test. Under L-E-A-, even though the respondent would not be targeted but for her familial relationship to her murdered husband, she would not be found to have established a nexus because the gangsters she fears do not wish to harm her because of an independent animus against her husband’s family. Rather, targeting her would be a means to the end of self-preservation by attempting to silencing her to avoid their own criminal prosecution.

Under the fact patterns we commonly see from Mexico and the “northern triangle” countries of Central America, claims based on family as a particular social group will continue to be denied, as such fears will inevitably be deemed to be a means to some criminal motive of gangs and cartels (i.e. to obtain money through extortion or as ransom; to increase their ranks; to avoid arrest) as opposed to a desire to punish the family itself. Applying the same logic to political opinion, a popular political opponent of a brutal dictator could be denied asylum, as the dictator’s real motive in seeking to imprison or kill the political opponent could be viewed as self-preservation (i.e. avoiding losing power in a free and fair election, and then being imprisoned and tried for human rights violations), as opposed to a true desire to overcome the applicant’s actual opinions on philosophical grounds.

Sadly, the approach of L-E-A- is consistent with that employed in a line of claims based on political opinion 20 years ago (see Matter of C-A-L-, 21 I&N Dec. 754 (BIA 1997); Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997); Matter of V-T-S-, 21 I&N Dec. 792 (BIA 1997)) in which attempted guerrilla recruitment, kidnaping, and criminal extortion carried out by armed political groups were not recognized as persecution where the perpetrator’s motive was to further a goal of his/her political organization as opposed to punishing the asylum applicant because of his/her own political opinion.

Nearly a decade earlier, an extreme application of this “logic” resulted in the most absurd Board result of to date. In Matter of Maldonado-Cruz, 19 I&N Dec. 509 (BIA 1988), the Board actually held that a deserter from an illegal guerrilla army’s fear of being executed by a death squad lacked a nexus to a protected ground, because the employment of death squads by said illegal guerrilla army was “part of a military policy of that group, inherent in the nature of the organization, and a tool of discipline,” (to quote from the headnotes). After three decades of following the course of such clearly result-oriented decision making, the Board missed an opportunity to right its course.

The author formerly served as an immigration judge, and as a staff attorney at the Board of Immigration Appeals.

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

I agree with Judge Chase that this is a missed opportunity that will come back to haunt all of us. A correct decision would have allowed many of the Central American asylum seekers clogging the court system at all levels to be granted needed protection, either at the USCIS or in court. Here is a link to my prior blog and “alternative analysis” of L-E-A-.

http://wp.me/p8eeJm-Sh

Instead, I predict that some of these cases could still be “kicking around the system” somewhere a decade from now, unless some drastic changes are made. And the type of positive, due process, fairness, and protection oriented changes needed are not going to happen under the Trump Administration. So, the battles will be fought out in the higher courts.

Although the BIA did it’s best to obfuscate, it’s prior precedent in Matter of J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007) basically established a “common sense/but for” test for one central reason. In a mixed motive case, if the persecution would have occurred notwithstanding the protected ground, then it is tangental, incidental, and not “at least one central reason.” On the other hand, if “but for” the protected ground the perseuction would not have occurred, that ground is at least “one central reason” of the persecution.

In L-E-A- the respondent would not have suffered threats and attempts to kidnap him “but for” his membership in the family. Hence family clearly is “at least one central reason” for the persecution. That’s basically the test the Fourth Circuit Court of Appeals would apply.

It’s a fairly straightforward case. The respondent in L-E-A- satisfies the refugee definition. In fact, the serious threats delivered by a gang which clearly has the ability and the means to carry them out amounts to past persecution. Hence, the respondent is entitled to the rebuttable presumption of future persecution.

Instead of properly applying its own precedents and reaching the correct result, the BIA launches into paragraphs of legal gobbledygook designed to mask what’s really going on here: manipulating the law and the facts to deny protection to Central American refugees whenever possible.

I know, this respondent is from Mexico; but, the BIA’s intended target obviously is Northern Triangle gang-based asylum claims. This precedent gives the Immigration Judges and Asylum Officers lots of “hooks” to deny claims by women and children fleeing family-targeted gang violence.

And, it insures that nobody without a really good lawyer and the ability to litigate up to Courts of Appeals if necessary even has a chance. The BIA is certainly well aware that the Trump Administration is pulling out all the stops to effectively deny counsel to arriving asylum seekers by a combination of using expedited removal, increasing negative credible fear determinations, and detaining everyone in out of the way locations where conditions are discouraging and pro bono counsel are not readily available.

Yeah, I don’t suppose any of this is going to bother Trump Administration officials any more than it did the BIA’s DOJ bosses during the Bush and Obama Administrations. Some negative case precedents on repetitive Central American claims proved mighty handy in border enforcement efforts and “don’t come, you’ve got no chance” publicity campaigns. The only problem is the it twists protection law out of shape.

Finally, let the record reflect that I lodged a dissent in Matter of C-A-L-, 21 I&N Dec. 754 (BIA 1997); Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997); and Matter of V-T-S-, 21 I&N Dec. 792 (BIA 1997), wrongly decided BIA precedent cases cited by Judge Chase. Indeed, Matter of T-M-B- eventually was reversed by the Ninth Circuit Court of Appeals, Borja v. INS, 175 F.3d 332 (9th cir. 1999), something which many BIA Appellate Judges only grudgingly acknowledged in later cases.

So, it will be left for the Courts of Appeals to straighten out nexus in the family context. Or not.

Again, welcome Judge Chase. Look forward to hearing more from you.

PWS

06-03-17

NEW PRECEDENT: BIA On “Receipt Of Stolen Property” –Matter of ALDAY-DOMINGUEZ, 27 I&N Dec. 48 (BIA 2017) — Still Getting It Wrong After All These Years — Read My “Dissenting Opinion!”

https://www.justice.gov/eoir/page/file/970806/download

Here’s the BIA headnote:

“The aggravated felony receipt of stolen property provision in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), does not require that unlawfully received property be obtained by means of common law theft or larceny.”

PANEL: BIA Appellate Immigration Judges Pauley, Guendelsberger, and Kendall Clark

OPINION BY: Judge Pauley

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

I respectfully dissent.

The Immigration Judge got it right. Under the “plain meaning” of the statute, the respondent is not an aggravated felon. Therefore, the DHS appeal should be dismissed.

Nearly 17 years ago, when I was Chairman of the BIA, I joined the dissenting opinion of Judge Lory D. Rosenberg in a related case, Matter of Bhata, 22 I&N Dec. 1381 (BIA 2000) https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3437.pdf which is cited by this panel in Matter of Alday-Dominguez. Indeed, the panel relies on Bhata to support it’s incorrect decision.

However, as Judge Rosenberg pointed out cogently in her dissent:

Accordingly, the modifying parenthetical phrase helps only to elucidate the main clause of the provision. Although the language “theft offense” may require our interpretation, the parenthetical must be read according to its own terms in the context of that subsection of the Act. The phrase “(including receipt of stolen property)” after the word “offense” limits the crimes that are included within the phrase “theft offense.” United States v. Monjaras-Castaneda, supra, at 329 (citing John E. Warriner & Francis Griffith, English Grammar and Composition (Heritage ed., Harcourt Brace Jovanovich 1977)). Specifically, the parenthetical provides that a “theft offense” encompasses the particular offense of receiving stolen property (which, by implication and judicial interpretation, is not a theft).

Matter of Bhata, supra, at 1396 (Rosenberg, AIJ dissenting).

Clearly, as pointed out by Judge Rosenberg, under a “plain reading” of the statutory language, “receipt of stolen property” is a “subgroup” of a theft offense. Consequently, the unlawfully received property must have been obtained by “theft.” The California statute includes things other than property obtained by theft, specifically objects obtained by “extortion.”

Therefore, under the “categorical approach,” the California statute is broader than the aggravated felony offense described in section 101(a)(43)(G) of the Act. Accordingly, the DHS fails to establish that the respondent is removable under that section. Hence, the Immigration Judge correctly terminated removal proceedings, and the DHS appeal should be dismissed.

The majority is just as wrong today as it was in Bhata. Remarkably, a member of this panel, Judge Guendelsberger, along with Judge Gus Villageliu and Judge Neil Miller, joined our dissent in Bhata. Sadly, over the course of his unjustified exile, followed by re-education, rehabilitation, and reappointment to his Appellate Judgeship, my friend and colleague’s views must have changed since the days when he stood up with the rest of us for respondents’ legal rights against the majority of our colleagues who all too often bought the Government’s arguments, even when they were less than persuasive.

Just this week, in a unanimous decision written by Justice Clarence Thomas, the Supreme Court reinforced the “plain meaning” analysis in applying the categorical approach to an aggravated felony removal provision involving “sexual abuse of a minor.” Esquivel-Quintana v. Sessions, ___ U.S. ___ (2017). Yet, the panel seems “tone-deaf” to the very clear message from Justice Thomas and his colleagues about the impropriety of manipulating clear statutory language to achieve a finding of removal.

In conclusion, the respondent has not been convicted an of an aggravated felony under section 101(a)(43)(G) of the Act by virtue of his conviction for receiving stolen property under the California Penal Code. Consequently, the Immigration Judge reached the correct result, and the DHS appeal should be dismissed.

Therefore, I respectfully dissent from the panel’s decision to sustain the DHS appeal.

Paul Wickham Schmidt

Former BIA Chairman, Appellate Immigration Judge, & United States Immigration Judge (Retired)

Entered: June 2, 2017

GAO Report Recommends Improvements In U.S. Immigration Court Hiring, Technology, Data Analysis, & Oversight!

Here’s a link to the entire package, including highlights, summary of recommendations, and the full 153 page report:

http://www.gao.gov/products/GAO-17-438

The part of the GAO study that I participated in, entitled “Experts and Stakeholders Have Proposed Restructuring EOIR’s Immigration Court System,” may be found at pages 73-87 of the full GAO report.

Lots to think about here. But one thing is clear: EOIR needs some fundamental changes and reforms for the U.S. Immigration Courts to survive as an institution. Notwithstanding EOIR’s positive, yet somewhat bureaucratic, “official response” to the draft version of the report, whether those changes can and will be made within the structure of the current Department of Justice remains to be seen. If I were an oddsmaker, I’d give it somewhat less than a 50-50 shot.

PWS

06-02-17

HOYA LAW REDUX — IMMIGRATION LAW & POLICY — Summer 2017 — Read “Welcome To the Breakfast Club: Introduction To Immigration Law & Policy, Georgetown Law Summer 2017 Edition”

I walked into Room 5020 at Hotung Hall. Windows, daylight! Wow! I felt almost like I had achieved tenure! After a two-year hiatus, I was back as an Adjunct Professor of Law at Georgetown. This time, I was off of the “night shift” and out of the windowless subterranian classroom in McDonough Hall. I think McDonough was where, as a newly hired Attorney Adviser at the Board of Immigration Appeals, I took “Immigration Law & Procedure” in 1974 from the late Charles Gordon, then General Counsel of the INS and Adjunct Professor. Perhaps in the same classroom.

The students filed in. The energy and brain waves (certainly not mine) zinged around the room. A number of PhDs, a Chemist, a Patent Examiner, a licensed Social Worker, someone with a “big law” job already lined up — some working on second, or even third careers, others just getting started. Bright, curious, engaged. They had already accomplished impressive things, but wanted to achieve more. No “traditional immigration junkies,” but all had some personal connection with immigration and a desire to learn more.

And, they were highly motivated. Everyone did the first assignment and reported on what they had learned. As a teacher, doesn’t get much better.

I wasn’t sure I could make this happen. Although retired from the court, I’m actually more or less “booked” for various family, professional, and educational events through next October! So, when Georgetown contacted me, I initially was hesitant. But, with the help of Tiffany Joly, Director of LLM Academic Services and the incomparable Sarah Kinney, Assistant Director of LLM Academic Services, we were able to “compress” the summer semester into an intensive five weeks. I have always been impressed with the helpfulness and skill of the Georgetown Law administrators. Everyone knows exactly what they are doing, and they always patiently explain the process to, and meet the needs of, Adjunct Professors. It makes Georgetown a great place to teach. I’m also glad that my good friend, Professor Andy Schoenholtz, a Director of the CALS Asylum Clinic at Georgetown, brought me into the “Georgetown family” in 2012 and helped me return this summer.

Here’s the text of my “introductory lecture.” Although some of you have read earlier versions, there is some “new stuff” in here.

Welcome To The Breakfast Club-GeorgetownILP2017

PWS

05-31-17

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