Paul Wickham Schmidt – Page 279 – immigrationcourtside.com

Led By Justice Thomas, Unanimous Supremes Reject USG’s Attempt To Deport Mexican Man For Consensual Sex With A Minor — “Strict Interpretation” Carries The Day!

Here is then full text of the opinion in Esquivel-Quintana v. Sessions:

https://www.supremecourt.gov/opinions/16pdf/16-54_5i26.pdf

Here’s a key excerpt from Justice Thomas’s opinion:

“Relying on a different dictionary (and “sparse” legislative history), the Government suggests an alternative “‘everyday understanding’” of “sexual abuse of a minor.” Brief for Respondent 16–17 (citing Black’s Law Dictionary 1375 (6th ed. 1990)). Around the time sexual abuse of a minor was added to the INA’s list of aggravated felonies, that dictionary defined “[s]exual abuse” as “[i]llegal sex acts performed against a minor by a parent, guardian, relative, or acquaintance,” and defined “[m]inor” as “[a]n infant or person who is under the age of legal competence,” which in “most states” was “18.” Id., at 997, 1375. “‘Sex- ual abuse of a minor,’” the Government accordingly contends, “most naturally connotes conduct that (1) is illegal, (2) involves sexual activity, and (3) is directed at a person younger than 18 years old.” Brief for Respondent 17.

We are not persuaded that the generic federal offense corresponds to the Government’s definition. First, the Government’s proposed definition is flatly inconsistent with the definition of sexual abuse contained in the very dictionary on which it relies; the Government’s proposed definition does not require that the act be performed “by a parent, guardian, relative, or acquaintance.” Black’s Law Dictionary 1375 (6th ed. 1990) (emphasis added). In any event, as we explain below, offenses predicated on a special relationship of trust between the victim and offender are not at issue here and frequently have a different age requirement than the general age of consent. Second, in the context of statutory rape, the prepositional phrase “of a minor” naturally refers not to the age of legal competence (when a person is legally capable of agreeing to a contract, for example), but to the age of consent (when a person is legally capable of agreeing to sexual intercourse).

Third, the Government’s definition turns the categorical approach on its head by defining the generic federal offense of sexual abuse of a minor as whatever is illegal under the particular law of the State where the defendant was convicted. Under the Government’s preferred ap- proach, there is no “generic” definition at all. See Taylor, 495 U. S., at 591 (requiring “a clear indication that . . . Congress intended to abandon its general approach of using uniform categorical definitions to identify predicate offenses”); id., at 592 (“We think that ‘burglary’ in §924(e) must have some uniform definition independent of the labels employed by the various States’ criminal codes”).

The structure of the INA, a related federal statute, and evidence from state criminal codes confirm that, for a statutory rape offense to qualify as sexual abuse of a minor under the INA based solely on the age of the participants, the victim must be younger than 16.”

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Notwithstanding a supposedly “conservative” Court, going back several Administrations the USG has been losing on a surprisingly regular basis in its attempts to take the most extreme and inclusive interpretations of various already very harsh deportation provisions. And, “strict constructionists” like Justice Thomas and the late Justice Scalia have sometimes had just as much problem with the Government’s overreach as have supposedly more liberal or “middle of the road” justices. That’s why I’m not convinced that Justice Gorsuch (who did not participate in this case) will be as much of a “Government ringer” as some believe, at least in immigration matters.

Despite a number of notable setbacks at the Court, DHS, DOJ, and the BIA all seem to be rather “tone deaf” to the Court’s message. The Executive Branch continues to take the most extreme anti-immigrant positions even where, as in this case, it requires ignoring the “unambiguous” statutory language.

Given the “maximo enforcement” posture of the Trump Administration, there is little reason to believe that the Executive Branch will “get” the Court’s message about more reasonable interpretations of deportation statutes. Hopefully, the Court will continue to stand up against such abuses of Executive authority.

PWS

05-31-17

U.S. IMMIGRATION COURTS: Judge James McHenry Named Acting EOIR Director!

In a move that many Immigration Court observers might find unusual, Attorney General Jeff Sessions has appointed Judge James McHenry as the Acting Director of EOIR. Judge McHenry was appointed an Administrative Law Judge in the Office of Chief Administrative Hearing Officer (“OCAHO”) in December 2106. OCAHO has jurisdiction over employer sanctions civil cases and certain employment discrimination cases involving foreign workers.

While Judge McHenry has stellar academic and professional credentials, and is an “EOIR vet,” having served as a Judicial Law Clerk/Attorney Adviser in the Buffalo and Baltimore Immigration Courts, it is unusual in my experience for the acting head of EOIR to come from outside the ranks of current or former members of the Senior Executive Service, since it is a major executive job within the DOJ.

Here is a recent bio of Judge McHenry taken from the press release of his December appointment as an ALJ:

“James McHenry, Administrative Law Judge

James McHenry was appointed as an administrative law judge (ALJ) for the Office of the Chief Administrative Hearing Officer (OCAHO), Executive Office for Immigration Review (EOIR), Department of Justice (DOJ), in November 2016. Judge McHenry earned a Bachelor of Science degree in 1997 from the Georgetown University School of Foreign Service, a Master of Arts degree in 2003 from the Vanderbilt University Graduate School, and a Juris Doctor in 2003 from the Vanderbilt University Law School. From February to November 2016, he served as an ALJ for the Office of Disability Adjudication and Review, Social Security Administration, in Baltimore, and previously from 2014 to February 2016, in Greenville, S.C. From 2010 through 2014 he served as a senior attorney for the Office of the Principal Legal Advisor (OPLA), Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS), in Atlanta. From 2010 through 2011, he served as a special assistant U.S. attorney for the U.S. Attorney’s Office, Northern District of Georgia, DOJ, in Atlanta. From 2005 through 2010, he served as an assistant chief counsel for OPLA, ICE, DHS, in Atlanta. From 2004 through 2005, he served as an attorney advisor for the Office of the Chief Immigration Judge (OCIJ), EOIR, DOJ, in Baltimore. From 2003 through 2004, he served as a judicial law clerk for OCIJ, EOIR, DOJ, in Buffalo, entering on duty through the Attorney General’s Honors Program. Judge McHenry is a member of the Tennessee State Bar.”

As noted by Politico in a report last week, it is strange that neither the DOJ nor EOIR has issued any press release or other official statement announcing the departure of Director Juan Osuna and Deputy Director Ana Kocur and the appointment of Judge McHenry to be Acting Director. Here’s a link to the Politico item: http://wp.me/p8eeJm-SZ

While sources confirm that an internal announcement was sent to EOIR employees last Friday, and Judge McHenry sent his own message to all of EOIR, as of Tuesday AM, there were no publicly posted announcements of these important personnel changes. However, Judge McHenry’s bio now does appear under the “Meet the Acting Director” tab on the EOIR website.

Congratulations and good luck to Judge McHenry in his important new role. He takes the reins at a difficult time in EOIR history with an already-record Immigration Court backlog approaching 600,000 cases, and constant reports of deteriorating morale among U.S. Immigraton Judges, court staff, and the public that deals with the Immigration Courts. I am not aware at this point whether Judge McHenry will be a candidate for the EOIR Director’s job on a permanent basis.

PWS

05-30-17

NYT Sunday Maggie: The “Deportation Resistance” In Trump’s America — Re-energized Or Outgunned? — The “country woke up in Arizona!”

https://www.nytimes.com/2017/05/23/magazine/is-it-possible-to-resist-deportation-in-trumps-america.html?em_pos=medium&emc=edit_ma_20170525&nl=magazine&nl_art=1&nlid=79213886&ref=headline&te=1&_r=0

Marcela Valdes writes:

“On Monday, Feb. 6, two days before Guadalupe García Aguilar made headlines as the first person deported under President Donald Trump’s new executive orders on immigration, she and her family drove to the modest stucco offices of Puente, an organization that represents undocumented immigrants. It was a postcard day: warm and dry, hovering around 70 degrees, the kind of winter afternoon that had long ago turned Phoenix into a magnet for American retirees and the younger, mostly Latin American immigrants who mulch their gardens and build their homes.
García Aguilar and her family — her husband and two children — squeezed together with four Puente staff members into the cramped little office that the group uses for private consultations. Carlos Garcia, Puente’s executive director, had bought a fresh pack of cigarettes right before the talk; he needed nicotine to carry him through the discomfort of telling García Aguilar that she would almost certainly be deported on Wednesday. Until that moment, she and her family had not wanted to believe that the executive orders Trump signed on Jan. 25 had made her expulsion a priority. She had been living in the United States for 22 years, since she was 14 years old; she was the mother of two American citizens; she had missed being eligible for DACA by just a few months. Suddenly, none of that counted anymore.
García Aguilar’s troubles with Immigration and Customs Enforcement (ICE) began in 2008, after police raided Golfland Sunsplash, the amusement park in Mesa, Ariz., where she worked. She spent three months in jail and three months in detention. (ICE booked her under the last name “García de Rayos.”) In 2013, an immigration court ordered her removal. Yet under pressure from Puente, which ultimately filed a class-action lawsuit contending that Maricopa County’s work-site raids were unconstitutional, ICE allowed García Aguilar (and dozens of others) to remain in Arizona under what is known as an order of supervision. ICE could stay her removal because the Obama administration’s guidelines for the agency specified terrorists and violent criminals as priorities for deportation. But Trump’s January orders effectively vacated those guidelines; one order specifically instructed that “aliens ordered removed from the United States are promptly removed.” García Aguilar, who had a felony for using a fabricated Social Security number, was unlikely to be spared.
Orders of supervision are similar to parole; undocumented immigrants who have them must appear before ICE officers periodically for “check-ins.” García Aguilar’s next check-in was scheduled for Wednesday, Feb. 8. She had three options, Garcia explained. She could appear as usual and hope for the best. She could try to hide. Or she could put up a fight, either from a place of sanctuary or by appearing for her check-in amid media coverage that Puente would organize on her behalf. Whatever she decided, he said, she would be wise to spend Tuesday preparing for separation from her children.
The family was devastated. García Aguilar left the meeting red-faced with tears.
The next day a dozen activists gathered at Puente to strategize for García Aguilar’s case. After reviewing the logistics for the usual public maneuvers — Facebook post, news release, online petition, sidewalk rally, Twitter hashtag, phone campaign — they debated the pros and cons of using civil disobedience. In the final years of the Obama administration, activists in Arizona had come to rely on “C.D.,” as they called it, to make their dissatisfaction known. Puente members had blocked roads and chained themselves in front of the entrance to Phoenix’s Fourth Avenue Jail. Yet Francisca Porchas, one of Puente’s organizers, worried about setting an unrealistic precedent with its membership. “For Lupita we go cray-cray and then everyone expects that,” she said. What would they do if Puente members wanted them to risk arrest every time one of them had a check-in?
Ernesto Lopez argued that they needed to take advantage of this rare opportunity. A week earlier, thousands of people had swarmed airports around the country to protest the executive order barring citizens from seven Muslim-majority nations. “There’s been a lot of conversation about the ban, but for everything else it’s dead,” Lopez said. “Nobody is talking about people getting deported. In a couple of months, it won’t be possible to get that media attention.”
Garcia wasn’t sure a rally for García Aguilar would work. “We’re literally in survival mode,” Garcia told me that week. It was too early to tell how ICE would behave under Trump, but they were braced for the worst. Nobody had a long-term plan yet. Even as he and his staff moved to organize the news conference, his mind kept running through the possibilities: Would it help García Aguilar stay with her family? Would it snowball into an airport-style protest? Would it cause ICE to double down on her deportation? He decided it was worth trying.
Shortly before noon on Wednesday, García Aguilar and her lawyer, Ray Ybarra Maldonado, entered ICE’s field office as supporters chanted “No está sola!” (You are not alone!) behind her. Telemundo, Univision and ABC shot footage. Supporters posted their own videos on Twitter and Facebook. ICE security warily eyed the scene. An hour later, Ybarra Maldonado exited ICE alone. García Aguilar had been taken into custody. All around the tree-shaded patio adjacent to ICE’s building, Puente members teared up, imagining the same dark future for themselves. Ybarra Maldonado filed a stay of deportation, and Porchas told everyone to come back later for a candlelight vigil.
That night a handful of protesters tried to block several vans as they sped from the building’s side exit. More protesters came running from an ICE decoy bus that had initially distracted those attending the vigil out front. Manuel Saldaña, an Army veteran who did two tours in Afghanistan, planted himself on the ground next to one van’s front tire, wrapping his arms and legs around the wheel. The driver looked incredulous; if he moved the van forward now, he would break one of Saldaña’s legs. Peering through the van windows with cellphone flashlights, protesters found García Aguilar sitting in handcuffs. The crowd doubled in size. “Those shifty [expletive],” Ybarra Maldonado said as he stared at the van. ICE, he said, had never notified him that her stay of deportation had been denied.
Four hours later, García Aguilar was gone. After the Phoenix Police arrested seven people and dispersed the crowd, ICE took her to Nogales, Mexico. By then images of García Aguilar and the protest were already all over television and social media. She and her children became celebrities within the immigrant rights movement. Carlos Garcia, who was with her in Nogales, told me that Mexican officials stalked her hotel, hoping to snag a photo. “Everyone wanted to be the one to help her,” he said. “Everyone wanted a piece.” Later that month, her children — Jacqueline, 14, and Angel, 16 — sat in the audience of Trump’s first address to Congress, guests of two Democratic representatives from Arizona, Raúl Grijalva and Ruben Gallego.
During the Obama years, most immigrant rights organizations focused on big, idealistic legislation: the Dream Act and comprehensive immigration reform, neither of which ever made it through Congress. But Puente kept its focus on front-line battles against police-ICE collaboration. For Garcia, who was undocumented until a stepfather adopted him at 16, the most important thing is simply to contest all deportations, without exception. He estimates that Puente has had a hand in stopping about 300 deportations in Arizona since 2012.
Ever since Arizona passed Senate Bill 1070, one of the toughest anti-undocumented bills ever signed into law, the state has been known for pioneering the kind of draconian tactics that the Trump administration is now turning into federal policy. But if Arizona has been a testing ground for the nativist agenda, it has also been an incubator for resistance to it. Among the state’s many immigrant rights groups, Puente stands out as the most seasoned and most confrontational. In the weeks and months following Election Day 2016 — as progressive groups suddenly found themselves on defense, struggling to figure out how to handle America’s new political landscape — Garcia was inundated with calls for advice. He flew around the country for training sessions with field organizers, strategy meetings with lawyers and policy experts and an off-the-record round table with Senators Dick Durbin and Bernie Sanders in Washington. A soft-spoken man with a stoic demeanor and a long, black ponytail, Garcia was also stunned by Trump’s victory. But organizers in Phoenix had one clear advantage. “All the scary things that folks are talking about,” he told me, “we’ve seen before.” On Nov. 9, he likes to say, the country woke up in Arizona.”

. . . .

On May 3, the day Arreola was to have been deported, Arreola and Andiola gathered with friends, family and supporters for a prayer breakfast at the First Congregational United Church of Christ in Phoenix, which had offered to house Arreola if she chose sanctuary. Pastor James Pennington had been active in the fight for gay rights. The patio of First Congregational was decorated with several flags, including a rainbow flag, an Arizona state flag and an American flag. Inside the church, members of Puente and former members of ADAC formed a circle with several non-Hispanics who had only recently allied themselves with the undocumented. Standing together they recited Psalm 30 in Spanish:

Te ensalzaré, oh Señor, porque me has elevado, y no has permitido que mis enemigos se rían de mi.

I’ll praise you, Lord, because you’ve lifted me up. You haven’t let my enemies laugh at me.

Yet their enemies remained hard at work. A week later, Marco Tulio Coss Ponce, who had been living in Arizona under an order of supervision since 2013, appeared at ICE’s field office in Phoenix with his lawyer, Ravindar Arora, for a check-in. ICE officers, Arora said, knew that Coss Ponce was about to file an application for asylum — several of his relatives had been recently killed or threatened by the Sinaloa cartel in Mexico — and they had assured Arora several times that Coss Ponce would not be removed. They said he simply needed to wear an ankle monitor to make sure he didn’t disappear. The fitting was delayed several times until finally Arora had to leave to argue a case in court. After he departed, ICE officers handcuffed Coss Ponce and put him in a van, alone. Three hours later, he was in Nogales.”

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Read the entire, very lengthy but worthwhile, article at the link.

Wow, can’t help but think “what if” all the energy, emotion, and activity on both sides of the immigration issue were re-directed at working together to “make America greater,” rather than engaging in a dangerous, counterproductive “grown up” game of hide and seek aimed at intimidating and removing productive members of American society who aren’t causing anyone any particular harm!

I’ve got some bad news for “the enforcers.” The U.S. families of most of the deportees aren’t going anywhere. And, there will be a steep price to pay in future generations for intentionally alienating some of America’s “best and brightest,” and our hope for the future as a nation.

Actions have consequences. Hate and disrespect aren’t quickly forgotten. Witness that even today, more than a century after the event, we’re still struggling as a nation with the misguided and hateful cause that created the short-lived “Confederate States of America,” killed hundreds of thousands of Americans of all races, and ruined millions of lives.

Something to think about on Memorial Day.

PWS

05-29-17

HISTORY: Paul Fanlund In Madison Cap Times: How We Got From Nixon To Trump!

http://host.madison.com/ct/opinion/column/paul_fanlund/paul-fanlund-so-why-can-t-america-just-be-good/article_e8734a95-ed8b-5544-a32f-f5ee791264a3.html#tncms-source=behavioral

Fanlund writes in an op-ed:

“When Roger Ailes died, essays about him ranged from adoring to vilifying. As creator of Fox News, he was perhaps the nation’s most influential political messenger — or propagandist — of the past 50 years.

One aspect of any honest obituary, of course, was his misogyny. Ailes was finally forced out at Fox in 2016 after years of sexual harassing women employees. His 17-year-old son threatened his father’s accusers at the funeral, warning mourners that he wanted “all the people who betrayed my father to know that I’m coming after them, and hell is coming with me.”

But what I found most interesting in immersing myself in analyses of Ailes’ life was how little his craft had to do with liberal versus conservative ideology.

Rather, Ailes was perhaps the master of the dark art of inventing and relentlessly reinforcing hateful caricatures of political opponents — in his case, people of color, bureaucrats, university professors and, of course, the media.

His brilliant execution of that art culminated in Donald Trump.

Ailes, as is widely known, learned from Richard Nixon, for whom he worked as a young television consultant. Nixon launched his political career much earlier by championing “forgotten Americans,” lunch-pail-toting working men whose fortunes, in Nixon’s telling, were stymied by taxes and regulations imposed upon them by far-away elites.

The rest, as they say, is history. Nixon appealed to his “silent majority” to stand against anti-war and civil rights protesters. Democrats opened the floodgates to Republican demagoguery by advancing civil rights. The GOP today has broadened its pool of villains to include Latino and Muslim immigrants.

The 1980s brought jolly Ronald Reagan with his fantastical stories about welfare queens, followed by George H.W. Bush’s law and order and patriotism themes, and so on.

“Individual issues would come and go — acid, amnesty and abortion in 1972, and immigration, political correctness and transgender bathrooms in 2016 — but the attacks on liberals as elite, out of touch and protective of the ‘wrong people’ came from the same playbook,” wrote David Greenberg, a Rutgers professor of history and journalism, in a New York Times op-ed on Ailes.

OK, but why does it always work?

Why are so many — especially older, white, middle-class people — so susceptible to this toxic narrative when it is clear that the trickle-down GOP policies that follow do them so little good?

Maybe, I theorize, it has something to do with how we were all taught.

I’ve talked with many friends about the flag-waving jingoism of our pre-college education, in which our nation was portrayed as perfect, our leaders without fault.

My formal education began when Dwight Eisenhower was president, an era of unfettered national pride. We were a paragon of liberty and justice and never fought in unjust wars. It was as if someone decided that American children could not process the slightest balance or shade of gray.

In this frame, Andrew Jackson was, as Trump likes to say, a glorious “swashbuckler” like himself, not a president who drove Native Americans from their homes, killing thousands in the process. Nor were we ever taught that Jackson, George Washington, Thomas Jefferson and other forefathers owned slaves.

It seems the goal was always to convey “American exceptionalism,” or, more bluntly, reinforce a cultish sense of American superiority.”

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Fanlund’s entire op-ed, at the above link, is well worth a read!

Lots of folks don’t like it when we put US history in perspective. For example, during the “glory days” of my childhood in the 1950’s millions of African Americans throughout the nation, and particularly in the South, were deprived of the basic rights of US citizenship. This was notwithstanding the clear dictates of the 14th Amendment, which had been added nearly a century earlier.

The US and many state governments merely decided not to enforce the law of the land. So much for all of the “rule of law” and “nation of laws” malarkey purveyed by right wingers today.

Indeed, many southern states enacted discriminatory laws that were directly contrary to the 14th Amendment. And, amazingly, for the majority of the 19th and 20th Centuries, courts of law at all levels were complicit in enforcing these unconstitutional laws and ignoring the14th Amendment!

PWS

05-26-17

POLITICS: Dems Fail Again To Make A Dent — GOP Wins Montana House Seat N/W/S Candidate’s Pending Assault Charge!

https://www.nytimes.com/2017/05/25/us/montana-special-election.html?emc=edit_nn_20170526&nl=morning-briefing&nlid=79213886&te=1

The NY Times reports:

“BOZEMAN, Mont. — Greg Gianforte, a wealthy Montana Republican who was charged with assaulting a reporter on Wednesday, nonetheless won the state’s lone seat in the House of Representatives on Thursday, according to The Associated Press, in a special election held up as a test of the country’s political climate.

Mr. Gianforte, 56, was widely seen as a favorite to win against Rob Quist, a Democrat and country music singer. But he seemed to imperil his own candidacy in the final hours of the race after he manhandled a journalist for The Guardian.

Addressing the altercation for the first time late Thursday night, Mr. Gianforte apologized to the Guardian reporter, Ben Jacobs, by name, acknowledged he “made a mistake” and vowed to the state’s voters that he would not embarrass them again.

“You deserve a congressman who stays out of the limelight and just gets the job done,” he said to a group of supporters at a hotel in Bozeman, who repeatedly yelled out that they forgave him.

Voters here shrugged off the episode and handed Republicans a convincing victory. Mr. Gianforte took slightly more than 50 percent of the vote to about 44 percent for Mr. Quist. (President Trump won Montana by about 20 percentage points.) Mr. Gianforte’s success underscored the limitations of the Democrats’ strategy of highlighting the House’s health insurance overhaul and relying on liberal anger toward the president, at least in red-leaning states.”

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Forget all the Trump hoopla, public opinion polls, marches, demonstrations, town halls, court cases, Russia, and the GOP’s cruelty, deception, and proven inability to govern. None of it appears to make any difference to the folks who count: voters!

There is no reason to believe that if the national election were held today, the results would be any different from November 2016: a GOP win at all levels.

Dems need 1) some dynamic leadership (sorely lacking since the departure of Obama from the national scene), and 2) a program that appeals to voters, at least some of whom pulled the lever for Trump.

The 2016 mistake was running a campaign based almost entirely on the strategy that Trump and the GOP would “self-destruct.” Didn’t work then, and it’s not working now.

How are Democrats, in the few areas of the country they control, improving things for the majority of folks, where the GOP isn’t? How could this be extended to “red areas?” How can immigrants actually create better economic opportunities for folks in red states and rural areas? Democrats need real life results, not just “wonkie” charts, statistics, and articles. How are Democrats going to get the message to folks who get their news from Fox, Breitbart, and their local GOP Representative’s newsletter?

Unless somebody is thinking creatively about the foregoing issues, it’s going to be a long four (or eight) years for Democrats and our country.

PWS

05-26-16

Fox, Breitbart, and

NEW PRECEDENT: Family Is A PSG, But Beware Of Nexus — Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) — Read My “Alternative Analysis!”

https://www.justice.gov/eoir/page/file/969456/download

BIA Headnote:

“(1) Whether a particular social group based on family membership is cognizable depends on the nature and degree of the relationships involved and how those relationships are regarded by the society in question. (2) To establish eligibility for asylum on the basis of membership in a particular social group composed of family members, an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.”

PANEL: BIA Appellate Immigration Judges Greer, Malphrus, Liebowitz

OPINION BY: Judge Anne Greer

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I was the Immigration Judge in one of the leading “family as a PSG” cases cited by the BIA, the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117, 124−25 (4th Cir. 2011). In Crespin, I had granted asylum to a Salvadoran family comprising a PSG of “family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses.”

The BIA reversed me on appeal, and the respondents sought judicial review in the Fourth Circuit. That Court (much to my delight and satisfaction, I must admit) reversed the BIA and agreed with me that the respondent’s PSG was valid.

Following that, family based PSGs came up frequently in the Arlington Immigration Court. However, in a number of cases, as in L-E-A-, in their haste to posit a valid family-based PSG, attorneys neglected to prove the nexus between the PSG and the harm, or, even more surprisingly, failed to show that the respondent was even a member of the proposed PSG. Details are important!

Nevertheless, since family-based PSG cases are often “grantable,” I can’t help wondering why the BIA selected a denial for the precedent, rather than putting forth a positive example of how family-based PSGs can be a legitimate means of granting protection under the law and thereby saving lives?

In L-E-A-, the PSG was the respondent’s membership in his father’s family. Gangs threatened him with harm because they wanted him to sell drugs in his father’s store, and he refused. The respondent’s membership in the family is immutable. Additionally, there is no reason to believe that the gangs would have threatened the respondent but for his membership in a family which ran a store where they wanted to sell drugs.

Consequently, the IJ and the BIA panel could just have easily found that “family membership” was at least one central reason for the threatened harm. To me, this seems like a better analysis. I find the panel’s observation that anyone who owned the store would have been threatened irrelevant. So what?

PWS

05-25-17

N. Rappaport On GOP’s “Extreme Enforcement” Initiatives!

http://thehill.com/blogs/pundits-blog/immigration/334554-republicans-are-preparing-extreme-immigration-measures

Nolan writes in The Hill:

“Highlights from Labrador’s summary of the Davis-Oliver Act.

It provides states with congressional authorization to enact and enforce their own immigration laws to end the executive branch’s ability to unilaterally shut down immigration enforcement.
It withholds certain federal grants from jurisdictions that refuse to honor immigration detainers or prohibit their law enforcement officers from giving immigration-related information to U.S. Immigration and Customs Enforcement (ICE).
Jurisdictions that refuse to honor detainer requests and release criminal aliens may be sued by the victims of crimes the aliens commit after they are released.
It makes membership in a criminal gang grounds for deportation.
It requires background checks to be completed before immigration benefits can be granted.
Criminalization of undocumented aliens.

Section 314 makes crimes out of illegal entry and unlawful presence. If an offender does not have three misdemeanor convictions or a felony conviction, a first offense can result in imprisonment for up to six months. Subsequent offenses can result in imprisonment for up to two years.

If the alien has three misdemeanor convictions or a felony conviction, however, the term of imprisonment can be up to 20 years. This is not as harsh as some of the criminal provisions which are in the Immigration and Nationality Act (INA) already. Smuggling an alien into the country or helping one to remain here unlawfully (harboring) may “be punished by death or imprisoned for any term of years or for life” if it results in the death of any person.

Home free magnet.

President Obama created what I call the “home free magnet”, when he focused enforcement on undocumented aliens who had been convicted of serious crimes or had been caught near the border after making an illegal entry. Aliens wanting to enter the United States illegally knew that they would be safe from deportation once they had reached the interior of the country.

This attracted undocumented aliens and became a powerful incentive for them to do whatever was necessary to enter the United States. President Trump destroyed this magnet with tough campaign rhetoric and his executive order, Enhancing Public Safety in the Interior of the United States, which greatly expands Obama’s enforcement priorities.

. . . .

Perhaps the Democrats should consider supporting a modified version of the Davis-Oliver Act in return for Republican consideration of a modified legalization program and other measures that are important to the Democrats.

A similar agreement was the basis for the Immigration Reform and Control Act of 1986 (IRCA), which made legalization available to millions of undocumented aliens in return for interior enforcement measures and border security.

The Republicans can deport most of the undocumented aliens in the country if they choose to do so, but it would take a long time and would be very expensive politically as well as financially.

They might be willing to consider a legalization program that is based on American needs, such as preventing citizen and lawful permanent resident families from being broken up and providing needed foreign workers for American employers.”

It could be limited to temporary lawful status while background investigations are being conducted. Greg Siskind and I suggested a way to do this in, “Pre-Registration: A Proposal to Kick-Start CIR.”

To be truly comprehensive, immigration reform has to include effective enforcement measures and time for putting together such a bill is running out.

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Read Nolan’s complete article over on The Hill at the above link.

Having served during the Obama Administration (as well as others from both parties) I disagree with Nolan’s characterization of Obama as having a “home free” policy. At least since the summer of 2014, no characterization could be further from the truth!

Beginning in the summer of 2014, the Obama Administrations, quite unwisely in my view, “prioritized” the cases of recent arrivals at the Southern Border. By taking these cases out of sequence, and totally out of proportion to any “threat” they posed, the Obama Administration’s policy of Aimless Docket Reshuffling (“ADR”) helped create an Immigration Court backlog that now approaches 600,000 cases, notwithstanding relatively “flat” receipts and actual increases in the number of sitting judges.

While eliminating the “recent arrivals priority,” the Trump Administration’s essentially “random” enforcement policy, lacking in any type of restraint or rationality, has actually made things much worse. As backlogs mushroom, the “home free” problem is actually more significant, although with a pronounced degree of randomness and irrationally. In other words, total docket chaos in Immigration Court.

While the threat of more “expedited removals,” which evade the Immigration Courts, does hang over the system, the procedures have not actually been implemented. Moreover, contrary to Nolan’s suggestion, there is no chance that the GOP will be able to remove more than a small fraction of the approximately 11 million undocumented aliens in the U.S. Yes, arbitrary enforcement does produce some “terrorism” effect by making everyone feel unsafe. Perhaps a relatively small number of undocumented residents will give up and leave (or try to enter Canada). Nevertheless, there is no practical way that 11 million individuals actually could be removed.

The GOP would do much better to sign on to immigration reforms that would give some type of legal status (not necessarily green cards) to most of those already here, while expanding legal immigration opportunities across the board. The resulting system would actually reduce pressure on the border while making interior enfircement more of a practical possibility than it has been at any time during the last for decades. But, that would take a thoughtful, practical, non-xenophobic, approach — something that has eluded the GOP in the years since the Reagan Administration.

Look for folks like Labrador & Goodlatte to work with the Adminstration to create a complete “train wreck” in the immigration enforcement system.

PWS

05-22-17

LEGISLATION: House GOP Takes The Low Road — Eschews Compromise — Goes For Enforcement Overkill!

http://www.cnn.com/2017/05/18/politics/immigration-bill-house-committee/index.html

Tal Kopan reports for CNN:

“Washington (CNN)Democrats and Republicans on Thursday faced off over immigration policy as a House committee began considering a set of immigration bills that Democrats say would amount to the creation of a “mass deportation force.”

Proponents of the first bill under consideration by the House judiciary committee — named after two law enforcement officers who were allegedly murdered by an undocumented immigrant — advocated for the bill as important to public safety and rule of law.
But Democrats on the committee decried the bill as an unnecessarily harsh anti-immigrant push by President Donald Trump.
“Proponents of this bill say that it’s necessary to keep us safe, but what the bill really does is pander to the noxious notion that immigrants are criminals and should be dealt with harshly,” said immigration subcommittee ranking member Zoe Lofgren, a California Democrat. “This bill gives Trump and (adviser Steve) Bannon the legislation to establish their mass deportation force. … This bill should really be called the ‘Mass Deportation Act,’ because that’s what it is.”
Judiciary Chairman Bob Goodlatte said the bill was not intended to target immigrants, but to “respect the rule of law.”
“This is simply a bill that gives any administration, the current one and future ones, the authority to enforce our laws properly, and gives to state and local governments … the ability to participate in that enforcement,” Goodlatte said.
The committee was set to mark up three Republican bills related to immigration on Thursday — one that would vastly expand the role of state and local jurisdictions in immigration enforcement and two others that would authorize immigration components of the Department of Homeland Security.
But by mid-afternoon, the committee recessed until next week after only making its way through two amendments. Both were brought by Democrats to strike portions of the bill, and after lengthy debate, both were rejected by the Republican majority committee. Democrats were expected to continue bringing a number of similar amendments when the markup continues on the nearly 200 page bill.
The main bill the committee discussed, the Michael Davis Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act, was introduced by Republican Rep. Raul Labrador of Idaho, and closely resembles similar legislation that the House judiciary committee has advanced in the past and that now-Attorney General Jeff Sessions introduced in his time in the Senate.
The Davis-Oliver Act would substantially increase the capabilities of federal and local immigration enforcement, including empowering state and local law enforcement to enact their own immigration laws and penalties. It also would give the government powers to revoke visas, beef up Immigration and Customs Enforcement’s ability to arrest and deport undocumented immigrants, increase criminal penalties for undocumented immigrants and punish sanctuary jurisdictions.

The two parties went back and forth on the bill, with Democrats decrying it as demonization of all immigrants, as an increase in mass incarceration and as a promotion of racial profiling and as unconstitutional federal overreach. They noted that local law enforcement in sanctuary cities say their policies are important for victims and witnesses of crimes to feel comfortable coming forward.
But Labrador said the notion that the bill harms public safety is “the most preposterous and outrageous argument I’ve ever heard.”
“For too long we have allowed individuals to enter our country illegally and in many cases do us harm,” he said. “While other reforms are needed, this bill is vital to a long-term fix.”
The other two bills, introduced by Goodlatte, a Virginia Republican, would serve as authorizations for ICE and US Citizenship and Immigration Services, codifying the mission statements of both entities. The USCIS bill would focus the agency, which oversees the issuance of visas and grants immigrants the ability to enter the U.S. . . . .”

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America has all the immigration enforcement we need at present. Undocumented entries are down, the undocumented population is stable, and all reputable studies show that migrants of all types are among the most law-abiding sectors of our society. Also, the DHS is unable to remove everyone who is currently under a final order of removal. The U.S. Immigration Court system is completely backlogged, with nearly an astounding 600,000 pending cases.

Consequently, beyond funding “fixes” for the overwhelmed Immigration Courts and the DHS program for executing final orders of removal, there is no need for additional immigration enforcement personnel and authority at this time. Nor is there any need to push reluctant cities to help DHS out with immigration enforcement.

No, notwithstanding the disingenuous statements by GOP Reps. Goodlatte and Labrador, this is all about generating anti-immigrant sentiment and promoting a non-existent link among immigrants, crime, and national security..

What America really needs is some type of legalization program to allow the millions of law-abiding undocumented individual already here to continue to work and contribute to our society. Additionally, we need immigration reform that would expand the legal immigration system to more realistically match supply with demand. This, in turn, would encourage individuals to enter through the legal system and thereby register and submit themselves to complete pre-entry vetting. That’s what would actually promote the safety and prosperity of America!

PWS

05-19-17

DOJ’s Location Of U.S. Immigration Courts At Obscure Detention Locations Helps DHS To Deny Due Process, Punish Lawyers!

https://www.propublica.org/article/immigrants-in-detention-centers-are-often-hundreds-of-miles-from-legal-help

Patrick G. Lee writes in ProPublica:

“One morning in February, lawyer Marty Rosenbluth set off from his Hillsborough, North Carolina, home to represent two anxious clients in court. He drove about eight hours southwest, spent the night in a hotel and then got up around 6 a.m. to make the final 40-minute push to his destination: a federal immigration court and detention center in the tiny rural Georgia town of Lumpkin.

During two brief hearings over two days, Rosenbluth said, he convinced an immigration judge to grant both of his new clients more time to assess their legal options to stay in the United States. Then he got in his car and drove the 513 miles back home.

“Without an attorney, it’s almost impossible to win your case in the immigration courts. You don’t even really know what to say or what the standards are,” said Rosenbluth, who works for a private law firm and took on the cases for a fee. “You may have a really, really good case. But you simply can’t package it in a way that the court can understand.”

His clients that day were lucky. Only 6 percent of the men held at the Lumpkin complex — a 2,001-bed detention center and immigration court — have legal representation, according to a 2015 study in the University of Pennsylvania Law Review. Nationwide, it’s not much better, the study of data from October 2006 to September 2012 found: Just 14 percent of detainees have lawyers.

That percentage is likely to get even smaller under the Trump administration, which has identified 21,000 potential new detention beds to add to the approximately 40,000 currently in use. In January, President Trump signed an executive order telling the secretary of homeland security, who oversees the Immigration and Customs Enforcement agency, to “immediately” start signing contracts for detention centers and building new ones.

If history is any guide, many of those facilities will end up in places like Lumpkin, population 2,741. The city’s small downtown has a courthouse, the police department, a couple of restaurants and a Dollar General. There’s no hotel and many of the nearest immigration lawyers are based 140 miles away in Atlanta.

“It’s been a strategic move by ICE to construct detention centers in rural areas,” said Amy Fischer, policy director for RAICES, a San Antonio-based nonprofit that supports on-site legal aid programs at two Texas facilities for detained families. “Even if the money is there, it’s very difficult to set up a pro bono network when you’re geographically three hours away from a big city.”
ICE currently oversees a network of about 200 facilities, jails, processing centers and former prisons where immigrants can be held, according to a government list from February.

Unlike criminal defendants, most immigrants in deportation proceedings are not entitled to government-appointed lawyers because their cases are deemed civil matters. Far from free legal help and with scant financial resources, the majority of detainees take their chances solo, facing off against federal lawyers before judges saddled with full dockets of cases. Frequently they must use interpreters.

An ICE spokesman denied that detention facilities are purposely opened in remote locations to limit attorney access. “Any kind of detention center, due to zoning and other factors, they are typically placed in the outskirts of a downtown area,” said spokesman Bryan Cox. “ICE is very supportive and very accommodating in terms of individuals who wish to have representation and ensuring that they have the adequate ability to do so.” At Lumpkin’s Stewart Detention Center, for instance, lawyers can schedule hourlong video teleconferences with detainees, Cox said.

But a ProPublica review found that access to free or low-cost legal counsel was limited at many centers. Government-funded orientation programs, which exist at a few dozen detention locations, typically include self-help workshops, group presentations on the immigration court process, brief one-on-one consultations and pro bono referrals, but they stop short of providing direct legal representation. And a list of pro bono legal service providers distributed by the courts includes many who don’t take the cases of detainees at all. Those that do can often only take a limited number — perhaps five to 10 cases at a time.

The legal help makes a difference. Across the country, 21 percent of detained immigrants who had lawyers won their deportation cases, the University of Pennsylvania Law Review study found, compared to just 2 percent of detainees without a lawyer. The study also found that 48 percent of detainees who had lawyers were released from detention while their cases were pending, compared to 7 percent of those who lacked lawyers.

Legal counsel can also speed up the process for those detainees with no viable claims to stay in the country, experts said. A discussion with a lawyer might prompt the detainee to cut his losses and opt for voluntary departure, avoiding a pointless legal fight and the taxpayer-funded costs of detention.

Lawmakers in some states, such as New York and California, have stepped in to help, pledging taxpayer money toward providing lawyers for immigrants who can’t afford their own. But such help only aids those detainees whose deportation cases are assigned to courts in those areas.

“What brings good results is access to family and access to counsel and access to evidence, and when you’re in a far off location without those things, the likelihood of ICE winning and the person being denied due process increase dramatically,” said Conor Gleason, an immigration attorney at The Bronx Defenders in New York.”

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Read the complete article at the above link.

Lumpkin is “at the outskirts” of what “downtown area?” Don’t all major metro areas have “metropolitan correctional centers,” city jails, county jails, or some equivalent located near the courts and hub of legal activities for criminal defendants awaiting trial? Why are civil detainees allowed to be treated this way?

For far too long, under AGs from both parties, the DOJ has participated in this disingenuous charade designed to promote removals over due process. Because cases often have to be continued for lawyers, even where none is likely to be found, the procedure actually adds to detention costs in many cases. Why not house only those with final orders awaiting removal or with pending appeals at places like Lumpkin? Why don’t the BIA and Courts of Appeals rule that intentionally detaining individuals where they cannot realistically exercise their “right to be represented by counsel of their own choosing” is a denial of due process?

Look for the situation to get much worse under Sessions, who envisions an “American Gulag” where detention rules as part of his program to demonize migrants by treating them all as “dangerous criminals.”

Meanwhile, as I pointed in a recent panel discussion at AYUDA, the only part of the immigration system over which the private sector has any control or influence these days is promoting due process by providing more pro bono lawyers for migrants. Eventually, if those efforts are persistent enough, the Government might be forced to change its approach.

PWS

05-18-17

ICE Gets Jollies By Busting More Non-Criminals, Adding to Immigration Court Backlogs!

https://www.washingtonpost.com/local/immigration-arrests-up-during-trump/2017/05/17/74399a04-3b12-11e7-9e48-c4f199710b69_story.html

Maria Sacchetti reports in the Washington Post:

“Federal immigration agents are arresting more than 400 immigrants a day, a sharp leap from last year that reflects one of President Trump’s most far-reaching campaign promises.

In Trump’s first 100 days in office, U.S. Immigration and Customs Enforcement arrested 41,318 immigrants, up 37.6 percent over the same period last year, the agency said Wednesday. Almost 3 out of 4 of those arrested have criminal records, including gang members and fugitives wanted for murder. But the biggest increase by far is among immigrants with no criminal records.

“This administration is fully implementing its mass-deportation agenda,” said Gregory Chen, government relations director for the American Immigration Lawyers Association. “They’re going after people who have lived here for a long time.”

. . . .

Acting ICE director Thomas Homan said the statistics released Wednesday show that agents still prioritize lawbreakers: 30,473 criminals were arrested from Jan. 22 to April 29, an 18 percent increase from the same period in 2016.

Meanwhile, arrests of immigrants with no criminal records more than doubled to nearly 11,000, the fastest-growing category by far.

“Will the number of noncriminal arrests and removals increase this year? Absolutely,” Homan said. “That’s enforcing the laws that are on the books.”

What is less clear is what is happening to the immigrants who are being taken into custody.

Overall, deportations have fallen about 12 percent this year, to about 56,315 people, which Homan attributed to a severe backlog in federal immigration courts. He also said it can take longer to deport criminals than those without criminal records, because those in the former category may have additional court proceedings. The Trump administration has called for additional immigration judges and detention space to speed deportations.

Homan did not say how many of the 41,318 people whose arrests were announced Wednesday have been deported, remain in custody or have been released.

Unlike criminal arrests, records of immigration arrests — which are considered civil violations — are not publicly accessible.

The secrecy allows immigration officials to pick and choose which examples of their work to highlight. On Wednesday, they said the immigrants arrested since Trump’s executive order include Estivan Rafael Marques Velasquez, an alleged MS-13 gang member from El Salvador captured in New York in February; Juan Antonio Melchor Molina, a fugitive wanted for a 2008 murder in Mexico who was arrested last month in Dallas; and William Magana-Contreras, another reputed MS-13 member arrested in Houston last month. Magana-Contreras is wanted for aggravated homicide in El Salvador, officials said.

Some advocates questioned whether ICE is truly prioritizing the most serious criminals.

Parastoo Zahedi, an immigration lawyer in Virginia, said ICE is actively trying to deport one of her clients to Italy because of a conviction for possession of a small amount of marijuana. He has lived in the United States nearly all his life.

“It’s not criminal aliens,” Zahedi said. “It’s anyone that they can catch.”

Ava Benach, a D.C. immigration lawyer, said ICE agents are “empowered, emboldened and . . . eager to enforce the law aggressively.”

Advocates also questioned the wisdom of arresting thousands more immigrants — especially those who pose no known public safety threat — when immigration courts are severely backlogged. But Homan said that is the agency’s job.

. . . .

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Let’s put this in plain language. We have a law that doesn’t work, and a system that is broken. There are an estimated 11 million undocumented individuals residing in the U.S. Most of them work, pay taxes (in some form), and contribute to the economy. Many have immediate relatives who are US citizens or otherwise in the country legally.

Because everyone can’t possibly be removed, the “unfocused” enforcement advocated by Homan on behalf of the Trump Administration turns out to be highly if not completely arbitrary. In most cases of those without serious criminal records, removal would be a net loss to our country.

Moreover, the Administration has reassigned U.S. Immigration Judges away from their regular dockets to work on detained cases, which, understandably, are the highest priority. By mindlessly “jacking up” the detained docket, the Administration guarantees that backlogs will continue to build on the “non-detained” dockets.

The Immigration Courts now have a backlog approaching 600,000, and it continues to grow by leaps and bounds even though there are more Immigration Judges on duty now than in past years and productivity has remained constant over the past few years (although Immigration Judges still complete multiples of what other similarly situated Federal Judges do, and far more cases than the
“ideal”). This is because of the “Aimless Docket Reshuffling” — ADR — foisted on the Immigration Courts by the past two Administrations.

While, at the very end of the Obama Administration ICE was making some progress toward smarter, more focused use of enforcement resources, which took into account the finite limits of Immigration Court dockets, the Trump Administration has returned to a policy of random irrational enforcement. They have also limited the discretion of individual ICE Assistant Chief Counsel to exercise discretion to get what should be “low priority” cases off the docket — in other words, to exercise “prosecutorial discretion” — “PD” — as other prosecutors do.

PWS

05-17-17

FBA Denver Wrap-Up — The Good, The Bad, & The Ugly!

The Good

It was a great conference in a great location — Denver. Lots of restaurants and things to do (although I was actually too busy to get out much).

Hats off to Conference Co-Chairs Barry Frager and the Honorable Lawrence O. (“The Burmanator”) Burman for putting the whole thing together and pulling it off without a hitch. Judge Burman, one of the few real judicial leaders at EOIR, also serves as the Chair of the Immigration Law Section (“ILS”) and editor of the outstanding newsletter, The Green Card.

An impressive group of approximately 400 attended, consisting of private practitioners, NGO lawyers, government attorneys, and several Federal Judges. They came from across the country. They heard from a faculty of dozens of experts covering 60 separate learning sessions over two days.

I particularly enjoyed catching up with old friends like fellow retired U.S. Immigration Judges Joan Churchill, Eliza Klein, and Bill Joyce and my former BIA colleague, Judge Lory Rosenberg. I was pleased to serve with Lory as the other member of the Due Process Panel, and I want to thank her for her very kind remarks about me.

A number of folks commented that they had never seen a happier and more relaxed group of Immigration Judges than our “Gang of Four” retired jurists. I should add that Bill and Eliza are both still actively practicing law, while Joan and I have chosen different retirement paths.

I loved the tremendous energy and spirit that the many younger practitioners brought to the conference. As I pointed out in my three presentations, never has the need for skilled immigration lawyers, ready to strongly and courageously fight the battle for due process, been greater. As one panelist put it, this is the time to show off and improve real legal skills and display creativity and toughness in conducting aggressive litigation in an era where the Government is seeking and intentionally provoking confrontation. Enjoy the moment! And these folks are ready to step up to the plate and give the Trump Administration’s anti-immigrant agenda all it can handle on every front.

It was heartening to see many “charter members” of the “New Due Process Army” (“NDPA”) — folks like Alex Ribe, Claudia Cubas, Eileen Blessinger, Jillian Blake, Robyn Barnard, Paromita Shah, and others — participating in the activities. I believe I also got some “new recruits” for the NDPA.

I’m already looking forward to next year in Memphis!

The Bad

Although The Office of Immigration Litigation (“OIL”), the DHS, U.S. Attorneys, and U.S. Magistrates participated in the panels, not a single current EOIR employee was on the faculty, although a number had been invited. The local U.S. Immigration Judges were “no shows,” although they would have had much to offer the group and vice versa.

Only a handful of EOIR employees attended, in their “personal capacities” and at their own expense. A troubling performance from an agency that amazingly cancelled their badly needed judicial training conference. And, the FBA is the only nationwide bar association concentrating on Federal Practice that encourages and makes possible full membership by both Federal employees and private sector attorneys.

The Ugly

In three words: “The Immigration Courts.” Everyone there, including government attorneys, has been affected in one way or another by the ridiculous backlog of non-detained cases. My references to “ADR” – aimless docket reshuffling – and feeling like I was in “Clown Court” some days struck a real chord with the audience.

Almost every session I attended was replete with descriptions of inappropriate behavior from several courts, Charlotte and Atlanta in particular. Things like Immigration Judges going off record and saying that they didn’t believe in A-R-C-G- (asylum for domestic violence) or asylum for Central Americans. Rude and intimidating treatment of counsel, failure to listen to arguments, unwillingness to grant bond, applying wrong legal standards, and inappropriately going “off record” were among the “horror stories” mentioned. It’s quite obvious that Atlanta and Charlotte, among others, are failing to follow the generous standards for granting asylum set forth by the Supreme Court in Cardoza-Fonseca and reinforced by the BIA in Mogharrabi.

It’s not about what an Immigration Judge personally believes. It’s about fairly and impartially applying the law, particularly to those needing protection. Gosh, I often had to apply BIA precedents that I not only disagreed with, but where I had actually dissented from the majority decision. But, the job of a judge is to follow the law, whether one likes it or not.

Much of the blame goes to the BIA. It sometimes appears to me that certain BIA Appellate Immigration Judges and panels are committed neither to enforcing due process nor their own precedent in Mogharrabi. Some folks are fortunate enough to be in Circuits that hold the BIA to the appropriate standards; others labor away in Circuits that have “blown off” their judicial review function by ”over-deferring” to the BIA. Clearly, the BIA has lost sight of its vision of “being the world’s best administrative tribunals guaranteeing fairness and due process for all.”

In any event, while some of the behavior issues could perhaps be addressed by EOIR management through the complaint system, that won’t solve the problem. Only the BIA has the ability to correct incorrect applications and attitudes about the law and due process in the U.S. Immigration Courts. Only the BIA can bring “outlier courts” – those with far too many asylum denials – into line with the law.

As I gave my keynote speech involving the history of EOIR, it occurred to me that EOIR, quite sadly, was actually returning to what the Immigration Courts were before the “spinoff” from the “Legacy INS:” inbred, staffed almost exclusively with former prosecutors, not user friendly, mismanaged, lacking necessary technology, and essentially being used as a tool for immigration enforcement. In other words, there is a notable lack of judicial independence. Very sad. It appears that as an due process oriented court system, EOIR has “run its course” in the DOJ and is now returning to it’s origins as a captive of the enforcement system.

The Immigration Courts’ problems have been aggravated by DHS leadership’s apparent decision to limit “prosecutorial discretion,” discourage cooperation and stipulation, and to “go to the mat” on everything. At a time when DHS should be looking for ways to get cases off the dockets, they instead appear to be looking for ways to jam the docket even fuller with cases, many of which are unlikely to be resolved in the next decade.

PWS

05-16-17

More Pics From Denver FBA!

Hon. Eliza Klein, USIJ (Ret.), Chicago, IL; Hon. William P. Joyce, USIJ (Ret.), Boston, MA

Hon. Lawrence O. ‘The Burmanator” Burman, Arlington, VA, ILS Chair & Conference Co-Chair; Eileen Blessinger, Esq., Falls Church, VA; Me; Barry Frager, Esq., Memphis TN, Conference Co-Chair

Hon. Lawrence O. Burman, Arlington, VA; Hon. Joan Churchill, USIJ (Ret.), Arlington, VA; Me; Hon. Eliza Klein, USIJ (Ret.), Chicago, IL

Hon. Lawrence O. Burman, Arlington, VA; Eileen Blessinger, Esq., Falls Church, VA; Me; Claudia Cubas, Esq., Washington, DC

WANTED: Public Servants With Backbone To Stand Up To Trump & Sessions!

https://www.washingtonpost.com/opinions/preet-bharara-are-there-still-public-servants-who-will-say-no-to-the-president/2017/05/14/8df915de-38d6-11e7-9e48-c4f199710b69_story.html

Former U.S. arrorney for the S.D.N.Y. Preet Bharara writes in an Washington Post op-ed:

“And in the tumult of this time, the question whose answer we should perhaps fear the most is the one evoked by that showdown: Are there still public servants who are prepared to say no to the president?

Now, as the country once again wonders whether justice can be nonpolitical and whether its leaders understand the most basic principles of prosecutorial independence and the rule of law, I recall yet another firestorm that erupted 10 years ago over the abrupt and poorly explained firing of top Justice Department officials in the midst of sensitive investigations. The 2007 affair was not Watergate, the more popular parallel invoked lately, but the lessons of that spring, after the Bush administration inexplicably fired more than eight of its own U.S. attorneys, are worth recalling.

When the actions became public, people suspected political interference and obstruction. Democrats were the most vocal, but some Republicans asked questions, too. The uproar intensified as it became clear that the initial explanations were mere pretext, and the White House couldn’t keep its story straight. Public confidence ebbed, and Congress began to investigate.
In response, the Senate launched a bipartisan (yes, bipartisan) investigation into those firings and the politicization of the Justice Department. Early on, the then-deputy attorney general — Comey was gone by then — looked senators in the eye and said the U.S. attorneys were fired for cause; although such appointees certainly serve at will, this assertion turned out to be demonstrably false. We learned that the U.S. attorney in New Mexico, David C. Iglesias, was fired soon after receiving an improper call from Republican Sen. Pete V. Domenici pushing him to bring political corruption cases before the election. We learned that Justice Department officials in Washington had improperly applied a conservative ideological litmus test to attorneys seeking career positions, to immigration judges and even to the hiring of interns.”

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As I personally experienced, the Bush DOJ was thoroughly politicized and compromised. U.S. Immigration Judges were among those affected by political hiring. Indeed, it did get all the way down to the level of interns. I knew well-qualified former interns who were “thrown out ” of consideration for permanent appointments under the so-called “Attorney General’s Honors Program” because their law schools or backgrounds were considered “too liberal.”

But, we don’t learn. Jeff Sessions is certainly on track to make the DOJ a mere suboffice of the White House staff. The idea that Sessions would act with integrity and/or say no to the President is beyond laughable.

Sadly, Rosenstein simply seems to be another in the long line of DOJ officials who have sacrificed principles and integrity for career advancement. He’ll likely ride his stint as Deputy AG to a partnership in a major downtown law firm defending white collar criminals and disgraced politicians. And, I have little doubt that the Trump Administration will produce lots off both. Nice work, if you can get it.

Closer to home, with the recent resignations of EOIR Director Juan Osuna and Deputy Director Ana Kocur, both well-respected apolitical career civil servants, we should be watching to see if a politico is appointed to oversee the crumbling U.S. Immigration Court system. At some point in the future, “good government” supporters will regain political control. It will then be important for those of us who believe in an independent immigration judiciary to have our documentation of the corruption and incompetence of DOJ mal-administration of our Immigration Courts ready to present along with a feasible plan for a new independent, due process focused Immigration Court.

PWS

05-15-17

Here’s My Keynote Address From Today’s FBA Immigration Law Conference In Denver, CO!

LIFE AT EOIR – PAST, PRESENT, AND FUTURE

Paul Wickham Schmidt

Retired U.S. Immigration Judge

Keynote Address

2017 Immigration Law Conference

Denver, CO

May 12, 2017

INTRODUCTION

Good afternoon. Thank you so much for inviting me. It’s an honor to appear before you.

Funny thing happened to me on the way to this conference. When I arrived at the airport yesterday afternoon, my good friend Judge Lory Rosenberg rushed up to me at baggage claim and said “Oh, I see we’re having you for lunch!” I said “What?” She said “You’re our keynote speaker at lunch tomorrow.” I scoffed at the idea, saying I might be on the after lunch panel with her, but that was it. However, when I actually took the time to look at the program I saw that certainly not for the first time, Lory was right. Unbeknownst to me I was, in fact, listed as the keynote speaker.

I’ve composed this speech on my I-pad, which I’m using as a teleprompter. As you know, those of us who worked at EOIR aren’t used to this new-fangled technology. So, please bear with me.

As we get started, I’d like all of you to join me in recognizing my friend and former colleague Judge Larry Burman for his tireless efforts to make the ILS the best section in the FBA. In the later years, I tried very hard to avoid being at court at nights, weekends, and holidays. But, occasionally I had to go pick up my cellphone or something else I had inadvertently left in my office. And, who should be there but Larry. And he was always working on a FBA project, the Green Card, Conference Planning, recruiting new members, etc. So, please join me in a round of applause for Judge Burman for all he has done for promoting productive dialogue and improving the practice of immigration law.

Now, this is when I used to give my comprehensive disclaimer providing “plausible deniability” for everyone in the Immigration Court System if I happened to say anything inconvenient or controversial. But, now that I’m retired, we can skip that part.

My speech is entitled: “Life At EOIR, Past Present, and Future.” I will start by introducing myself to you and telling you a bit about how my life and career have been intertwined with EOIR. Then I will briefly address five things: the court system’s vision, the judge’s role, my judicial philosophy, what needs to be done to reclaim the due process vision of the Immigration Courts, and how you can get involved.

CAREER SUMMARY

I graduated in 1970 from Lawrence University a small liberal arts college in Appleton, Wisconsin, where I majored in history. My broad liberal arts education and the intensive writing and intellectual dialogue involved were the best possible preparation for all that followed.

I then attended the University of Wisconsin School of Law in Madison, Wisconsin, graduating in 1973. Go Badgers!

I began my legal career in 1973 as an Attorney Advisor at the Board of Immigration Appeals (“BIA”) at the U.S. Department of Justice (“DOJ”) under the Attorney General’s Honors Program. Admittedly, however, the BIA’s Executive Assistant culled my resume from the “Honors Program reject pile.” One of my staff colleagues at that time, now retired U.S Immigration Judge Joan Churchill, is right here in the audience.

At that time, before the creation of the Executive Office for Immigration Review – “EOIR” for you Winnie the Pooh fans — the Board had only five members and nine staff attorneys, as compared to today’s cast of thousands. Among other things, I worked on the famous, or infamous, John Lennon case, which eventually was reversed by the Second Circuit in an opinion by the late Chief Judge Irving Kaufman.^[1] As an interesting historical footnote, that case was argued in the Circuit by then Special Assistant U.S. Attorney Mary Maguire Dunne, who went on to become a distinguished Member of the BIA and one of my Vice Chairs during my tenure as Chairman.

I also shared an office with my good friend, the late Lauri Steven Filppu, who later became a Deputy Director of the Office of Immigration Litigation (“OIL”) in the DOJ’s Civil Division and subsequently served with me on the BIA. The Chairman of the BIA at that time was the legendary “immigration guru” Maurice A. “Maury” Roberts. Chairman Roberts took Lauri and me under this wing and shared with us his love of immigration law, his focus on sound scholarship, his affinity for clear, effective legal writing, and his humane sense of fairness and justice for the individuals coming before the BIA.

In 1976, I moved to the Office of General Counsel at the “Legacy” Immigration and Naturalization Service (“INS”). There, I worked for another legendary figure in immigration law, then General Counsel Sam Bernsen. Sam was a naturalized citizen who started his career as a 17-year-old messenger at Ellis Island and worked his way to the top of the Civil Service ranks. Perhaps not incidentally, he was also a good friend of Chairman Roberts.

At that time, the Office of General Counsel was very small, with a staff of only three attorneys in addition to the General Counsel and his Deputy, another mentor and immigration guru, Ralph Farb. At one time, all three of us on the staff sat in the same office! In 1978, Ralph was appointed to the BIA, and I succeeded him as Deputy General Counsel. I also served as the Acting General Counsel for several very lengthy periods in both the Carter and Reagan Administrations.

Not long after I arrived, the General Counsel position became political. The incoming Administration encouraged Sam to retire, and he went on to become a name and Managing Partner of the Washington, D.C. office of the powerhouse immigration boutique Fragomen, Del Rey, and Bernsen. He was replaced by my good friend and colleague David Crosland, now an Immigration Judge in Baltimore, who selected me as his Deputy. Dave was also the Acting Commissioner of Immigration during the second half of the Carter Administration, one of the periods when I was the Acting General Counsel.

The third General Counsel that I served under was one of my most “unforgettable characters:” the late, great Maurice C. “Mike” Inman, Jr. He was known, not always affectionately, as “Iron Mike.” His management style was something of a cross between the famous coach of the Green Bay Packers, Vince Lombardi, and the fictional Mafia chieftain, Don Corleone. As my one of my colleagues said of “Iron Mike:” “He consistently and unreasonably demanded that we do the impossible, and most of the time we succeeded.” Although we were totally different personalities, Mike and I made a good team, and we accomplished amazing things. It was more or less a “good cop, bad cop” routine, and I’ll let you guess who played which role. You can check the “Inman era” out with retired Immigration Judge William P. Joyce, who is sitting in the audience and shared the experience with me.

Among other things, I worked on the Iranian Hostage Crisis, the Cuban Boatlift, the Refugee Act of 1980, the Immigration Reform and Control Act of 1986 (“IRCA”), the creation of the Office of Immigration Litigation (“OIL”), and establishing what has evolved into the modern Chief Counsel system at Department of Homeland Security (“DHS”).

I also worked on the creation of EOIR, which combined the Immigration Courts, which had previously been part of the INS, with the BIA to improve judicial independence. Interestingly, and perhaps ironically, the leadership and impetus for getting the Immigration Judges into a separate organization came from Mike and the late Al Nelson, who was then the Commissioner of Immigration. Prosecutors by position and litigators by trade, they saw the inherent conflicts and overall undesirability, from a due process and credibility standpoint, of having immigration enforcement and impartial court adjudication in the same division. I find it troubling that officials at today’s DOJ aren’t able to understand and act appropriately on the glaring conflict of interest currently staring them in their collective faces.

By the time I left in 1987, the General Counsel’s Office, largely as a result of the enactment of IRCA and new employer sanctions provisions, had dozens of attorneys, organized into divisions, and approximately 600 attorneys in the field program, the vast majority of whom had been hired during my tenure.

In 1987, I left INS and joined Jones Day’s DC Office, a job that I got largely because of my wife Cathy and her “old girl network.” I eventually became a partner specializing in business immigration, multinational executives, and religious workers. Among my major legislative projects on behalf of our clients were the special religious worker provisions added to the law by the Immigration Act of 1990 and the “Special Immigrant Juvenile” provisions of the INA with which some of you might be familiar.

Following my time at Jones Day, I succeeded my former boss and mentor Sam Bernsen as the Managing Partner of the DC Office of Fragomen, Del Rey & Bernsen, the leading national immigration boutique, where I continued to concentrate on business immigration. You will note that immigration is a small community; you need to be nice to everyone because you keep running into the same folks over and over again in your career. While at Fragomen, I also assisted the American Immigration Lawyers Association (“AILA”) on a number of projects and was an adviser to the Lawyers’ Committee, now known as Human Rights First.

In 1995, then Attorney General Janet Reno appointed me Chairman of the BIA. Not surprisingly, Janet Reno, who recently died, was my favorite among all of the Attorneys General I worked under. I felt that she supported me personally, and she supported the concept of an independent judiciary, even though she didn’t always agree with our decisions and vice versa.

She was the only Attorney General who consistently came to our Investitures and Immigration Judge Conferences in person and mixed and mingled with the group. She was also kind to our clerical staff and invited them downtown to meet personally with her. She had a saying “equal justice for all” that she worked into almost all of her speeches, and which I found quite inspirational. She was also hands down the funniest former Attorney General to appear on “Saturday Night Live,” doing her famous “Janet Reno Dance Party” routine with Will Farrell immediately following the end of her lengthy tenure at the DOJ.

Among other things, I oversaw an expansion of the Board from the historical five members to more than 20 members, a more open selection system that gave some outside experts a chance to serve as appellate judges on the Board, the creation of a supervisory structure for the expanding staff, the establishment of a unified Clerk’s Office to process appeals, implementation of a true judicial format for published opinions, institution of bar coding for the tens of thousands of files, the establishment of a pro bono program to assist unrepresented respondents on appeal, the founding of the Virtual Law Library, electronic en banc voting and e-distribution of decisions to Immigration Judges, and the publication of the first BIA Practice Manual, which actually won a “Plain Language Award” from then Vice President Gore.

I also wrote the majority opinion in my favorite case, Matter of Kasinga, establishing for the first time that the practice of female genital mutilation (“FGM”) is “persecution” for asylum purposes.^[2] As another historical footnote, the “losing” attorney in that case was none other than my good friend, then INS General Counsel David A. Martin, a famous immigration professor at the University of Virginia Law who personally argued before the Board.

In reality, however, by nominally “losing” the case, David actually won the war for both of us, and more important, for the cause of suffering women throughout the world. We really were on the same side in Kasinga. Without David’s help, who knows if I would have been able to get an almost-united Board to make such a strong statement on protection of vulnerable women.

During my tenure as Chairman, then Chief Immigration Judge (now BIA Member) Michael J. Creppy and I were founding members of the International Association of Refugee Law Judges (“IARLJ”). This organization, today headquartered in The Hague, promotes open dialogue and exchange of information among judges from many different countries adjudicating claims under the Geneva Convention on Refugees. Since my retirement, I have rejoined the IARLJ as a Vice President for the Americas.

In 2001, at the beginning of the Bush Administration, I stepped down as BIA Chairman, but remained as a Board Member until April 2003. At that time, then Attorney General John Ashcroft, who was not a fan of my opinions, invited me to vacate the Board and finish my career at the Arlington Immigration Court, where I remained until my retirement on June 30 of last year. So, I’m one of the few ever to become an Immigration Judge without applying for the job. Or, maybe my opinions, particularly the dissents, were my application and I just didn’t recognize it at the time. But, it turned out to be a great fit, and I truly enjoyed my time at the Arlington Court.

I have also taught Immigration Law at George Mason School of Law in 1989 and “Refugee Law and Policy” at Georgetown Law from 2012 through 2014. I’ve just agreed to resume my Adjunct position with Georgetown Law for a “compressed summer course” in “Immigration Law & Policy.”

Please keep in mind that if everyone agreed with me, my career wouldn’t have turned out the way it did. On the other hand, if nobody agreed with me, my career wouldn’t have turned out the way it did. In bureaucratic terms, I was a “survivor.” I have also, at some point in my career, probably been on both sides of many of the important issues in U.S. immigration law.

One of the challenges that lawyers will face in Immigration Court is that different judges have distinct styles, philosophies, and preferences. I always felt that although we might differ in personality and approach, at least in Arlington we all shared a commitment to achieving fairness and justice.

As a sitting judge, I encouraged meticulous preparation and advance consultation with the DHS Assistant Chief Counsel to stipulate or otherwise narrow issues. In Arlington, for example, even with a new high of 10 Immigration Judges, the average docket is still 3,000 cases per judge. There currently are more than 30,000 pending cases at the Arlington Court. Because of this overwhelming workload, efficiency and focusing on the disputed issues in court are particularly critical.

THE DUE PROCESS VISION

Now, let’s move on to the other topics: First, vision. The “EOIR Vision” is: “Through teamwork and innovation, be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” In one of my prior incarnations, I was part of the group that developed that vision statement. Perhaps not surprisingly given the timing, that vision echoed the late Janet Reno’s “equal justice for all” theme.

Sadly, the Immigration Court System is moving further away from that due process vision. Instead, years of neglect, misunderstanding, mismanagement, and misguided priorities imposed by the U.S. Department of Justice have created judicial chaos with an expanding backlog now approaching an astounding 600,000 cases and no clear plan for resolving them in the foreseeable future. There are now more pending cases in Immigration Court than in the entire U.S. District Court System, including both Civil and Criminal dockets, with fewer than half as many U.S. Immigration Judges currently on board as U.S. District Judges.

And, the new Administration promises to add hundreds of thousands, if not millions, of new cases to the Immigration Court docket, again without any transparent plan for completing the half million already pending cases consistent with due process and fairness. In fact, notably, and most troubling, concern for fairness and due process in the immigration hearing process has not appeared anywhere in the Administration’s many pronouncements on immigration.

Nobody has been hit harder by this preventable disaster than asylum seekers, particularly scared women and children fleeing for their lives from the Northern Triangle of Central America. In Immigration Court, notwithstanding the life or death issues at stake, unlike criminal court there is no right to an appointed lawyer. Individuals who can’t afford a lawyer must rely on practicing lawyers who donate their time or on nonprofit community organizations to find free or low cost legal representation. Although the Government stubbornly resists the notion that all asylum seekers should be represented, studies show that represented asylum seekers are at least five times more likely to succeed than those who must represent themselves. For recently arrived women with children, the success differential is an astounding fourteen times!^[3]

You might have read about the unfortunate statement of an Assistant Chief Judge for Training who claimed that he could teach immigration law to unrepresented toddlers appearing in Immigration Court. Issues concerning representation of so-called “vulnerable populations” continue to challenge our Court System. Even with Clinics and Non-Governmental Organizations pitching in, there simply are not enough free or low cost lawyers available to handle the overwhelming need. In fact, soon to be former EOIR Director Juan Osuna once declared in an officially-sanctioned TV interview that the current system is “broken.”^[4]

Notwithstanding the admitted problems, I still believe in the EOIR vision. Later in this speech I’m going to share with you some of my ideas for reclaiming this noble due process vision.

THE ROLE OF THE IMMIGRATION JUDGE

Changing subjects, to the role of the Immigration Judge: What’s it like to be an Immigration Judge? As an Immigration Judge, I was an administrative judge. I was not part of the Judicial Branch established under Article III of the Constitution. The Attorney General, part of the Executive Branch, appointed me, and my authority was subject to her regulations.

We should all be concerned that the U.S. Immigration Court system is now totally under the control of Attorney General Jeff Sessions, who has consistently taken a negative view of immigrants, both legal and undocumented, and has failed to recognize the many essential, positive contributions that immigrants make to our country.

Perhaps ironically, the late Judge Terence T. Evans of the Seventh Circuit Court of Appeals offered one of the best descriptions of what it’s like to be an Immigration Judge. Judge Evans was not one of us, but saw plenty of our work during his lifetime. Judge Evans said:

“Because 100 percent of asylum petitioners want to stay in this country, but less than 100 percent are entitled to asylum, an immigration judge must be alert to the fact that some petitioners will embellish their claims to increase their chances of success. On the other hand, an immigration judge must be sensitive to the suffering and fears of petitioners who are genuinely entitled to asylum in this country. A healthy balance of sympathy and skepticism is a job requirement for a good immigration judge. Attaining that balance is what makes the job of an immigration judge, in my view, excruciatingly difficult.”^[5]

My Arlington Immigration Court colleague Judge Thomas G. Snow also gives a very moving and accurate glimpse of an Immigration Judge’s life in a recent article from USA Today:

” Immigration judges make these decisions alone. Many are made following distraught or shame-filled testimony covering almost unimaginable acts of inhumanity. And we make them several times a day, day after day, year after year.

We take every decision we make very seriously. We do our best to be fair to every person who comes before us. We judge each case on its own merits, no matter how many times we’ve seen similar fact patterns before.

We are not policymakers. We are not legislators. We are judges. Although we are employees of the U.S. Department of Justice who act under the delegated authority of the attorney general, no one tells us how to decide a case. I have been an immigration judge for more than 11 years, and nobody has ever tried to influence a single one of my thousands of decisions

And finally, because we are judges, we do our best to follow the law and apply it impartially to the people who appear before us. I know I do so, even when it breaks my heart.^[6]

My good friend and colleague, Judge Dana Leigh Marks of the San Francisco Immigration Court, who is the President of the National Association of Immigration Judges, offers a somewhat pithier description: “[I]mmigration judges often feel asylum hearings are ‘like holding death penalty cases in traffic court.’”^[7]

Another historical footnote: as a young lawyer, then known as Dana Marks Keener, Judge Marks successfully argued the landmark Supreme Court case INS v. Cardoza Fonseca, establishing the generous “well-founded fear” standard for asylum, while I helped the Solicitor General’s office develop the unsuccessful opposing arguments for INS.^[8] Therefore, I sometimes refer to Judge Marks as one of the “founding mothers” of U.S. asylum law.

From my perspective, as an Immigration Judge I was half scholar, half performing artist. An Immigration Judge is always on public display, particularly in this “age of the Internet.” His or her words, actions, attitudes, and even body language, send powerful messages, positive or negative, about our court system and our national values. Perhaps not surprisingly, the majority of those who fail at the job do so because they do not recognize and master the “performing artist” aspect, rather than from a lack of pertinent legal knowledge.

One of the keys to the Immigration Judge’s job is issuing scholarly, practical, well-written opinions in the most difficult cases. That ties directly into the job of the Immigration Court’s amazing Judicial Law Clerks (“JLCs”) assisted by all-star legal interns from local law schools. The JLC’s job is, of course, “to make the judge look smart,” no matter how difficult or challenging that might be in a particular case.

MY JUDICIAL PHILOSOPHY

Next, I’ll say a few words about my philosophy. In all aspects of my career, I have found five essential elements for success: fairness, scholarship, timeliness, respect, and teamwork.

Obviously, fairness to the parties is an essential element of judging. Scholarship in the law is what allows us to fairly apply the rules in particular cases. However, sometimes attempts to be fair or scholarly can be ineffective unless timely. In some cases, untimeliness can amount to unfairness no matter how smart or knowledgeable you are.

Respect for the parties, the public, colleagues, and appellate courts is absolutely necessary for our system to function. Finally, I view the whole judging process as a team exercise that involves a coordinated and cooperative effort among judges, respondents, counsel, interpreters, court clerks, security officers, administrators, law clerks and interns working behind the scenes, to get the job done correctly. Notwithstanding different roles, we all share a common interest in seeing that our justice system works.

Are the five elements that I just mentioned limited to Immigration Court? They are not only essential legal skills, they are also necessary life skills, whether you are running a courtroom, a law firm, a family, a PTA meeting, a book club, or a soccer team. As you might imagine, I am a huge fan of clinical experience as an essential part of the law school curriculum. Not only do clinical programs make important actual contributions to our justice system – due process in action – but they teach exactly the type of intellectual and practical values and skills that I have just described.

RECLAIMING THE VISION

Our Immigration Courts are going through an existential crisis that threatens the very foundations of our American Justice System. Earlier, I told you 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 DOJ – 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 ABA and the FBA, would be best.

Clearly, the due process focus was lost during the last Administration when officials outside EOIR forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases was not only unfair to all, but has created what I call “aimless docket reshuffling” — “ADR” — that has thrown the Immigration Court system into chaos and dramatically increased the backlogs.

Although those misguided Obama Administration priorities have been rescinded, the reprieve is only fleeting. The Trump Administration has announced plans to greatly expand the “priority” targets for removal to include even those who were merely accused of committing any crime. The Administration also plans a new and greatly expanded “immigration detention empire,” likely to be situated in remote locations near the Southern Border, relying largely on discredited private “for profit” prisons. The Administration also wants to make it more difficult for individuals to get full Immigration Court hearings on asylum claims and to expand the use of so-called “expedited removal,” thereby seeking to completely avoid the Immigration Court process.

Evidently, the idea, similar to that of the Obama Administration, is 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.

Second, there must be structural changes so that the Immigration Courts are organized and run like a real court system, not a highly bureaucratic agency. This means that sitting Immigration Judges, like in all other court systems, must control their dockets. The practice of having administrators in Falls Church and bureaucrats in Washington, D.C., none of whom are sitting judges responsible for daily court hearings, manipulate and rearrange local dockets in a vain attempt to achieve policy goals unrelated to fairness and due process for individuals coming before the Immigration Courts must end.

If there are to be nationwide policies and practices, they should be developed by an “Immigration Judicial Conference,” patterned along the lines of the Federal Judicial Conference. That would be composed of sitting Immigration Judges representing a cross-section of the country, several Appellate Immigration Judges from the BIA, and probably some U.S. Circuit Judges, since the Circuits are one of the primary “consumers” of the court’s “product.”

Third, there must be a new administrative organization to serve the courts, much like the Administrative Office of the U.S. Courts. This office would naturally be subordinate to the Immigration Judicial Conference. Currently, the glacial hiring process, inadequate courtroom space planning and acquisition, and unreliable, often-outdated technology are simply not up to the needs of a rapidly expanding court system.

In particular, the judicial hiring process over the past 16 years has failed to produce the necessary balance because judicial selectees from private sector backgrounds – particularly those with expertise in asylum and refugee law – have been so few and far between. Indeed, during the last Administration nearly 90% of the judicial appointments were from Government backgrounds. And, there is no reason to believe that pattern will change under the current Administration. In fact, only one of the seven most recent appointments by Attorney General’s Sessions came from a private sector background.

Fourth, I would repeal all of the so-called “Ashcroft reforms” at the BIA and put the BIA back on track to being a real appellate court. A properly comprised and well-functioning BIA should transparently debate and decide important, potentially controversial, issues, publishing dissenting opinions when appropriate. All BIA Appellate Judges should be required to vote and take a public position on all important precedent decisions. The BIA must also “rein in” those Immigration Courts with asylum grant rates so incredibly low as to make it clear that the generous dictates of the Supreme Court in Cardoza-Fonseca^[9] and the BIA itself in Mogharrabi^[10] are not being followed.

Nearly a decade has passed since Professors Andy Schoenholtz, Phil Shrag, and Jaya Ramji-Nogales published their seminal work Refugee Roulette, documenting the large disparities among Immigration Judges in asylum grant rates.^[11] While there has been some improvement, the BIA, the only body that can effectively establish and enforce due process within the Immigration Court system, has not adequately addressed this situation.

For example, let’s take a brief “asylum magical mystery tour” down the East Coast.^[12] In New York, 84% of the asylum applications are granted. Cross the Hudson River to Newark and that rate sinks to 48%, still respectable in light of the 47% national average but inexplicably 36% lower than New York. Move over to the Elizabeth Detention Center Court, where you might expect a further reduction, and the grant rate rises again to 59%. Get to Baltimore, and the grant rate drops to 43%. But, move down the BW Parkway a few miles to Arlington, still within the Fourth Circuit like Baltimore, and it rises again to 63%. Then, cross the border into North Carolina, still in the Fourth Circuit, and it drops remarkably to 13%. But, things could be worse. Travel a little further south to Atlanta and the grant rate bottoms out at an astounding 2%.

In other words, by lunchtime some days the Immigration Judges sitting in New York granted more than the five asylum cases granted in Atlanta during the entire Fiscal Year 2015! An 84% to 2% differential in fewer than 900 miles! Three other major non-detained Immigration Courts, Dallas, Houston, and Las Vegas, have asylum grants rates at or below 10%.

Indeed a recent 2017 study of the Atlanta Immigration Court by Emory Law and the Southern Poverty Law Center found:

[S]ome of the Immigration Judges do not respect rule of law principles and maintain practices that undermine the fair administration of justice. During the course of our observations, we witnessed the following [issue, among others]. Immigration Judges made prejudicial statements and expressed significant disinterest or even hostility towards respondents in their courts. In at least one instance, an Immigration Judge actively refused to listen to an attorney’s legal arguments. In another instance, an Immigration Judge failed to apply the correct standard of law in an asylum case. ^[13]

This is hardly “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all!” These unusually low asylum grant rates are impossible to justify in light of the generous standard for well-founded fear established by the Supreme Court in Cardoza-Fonseca and the BIA in Mogharrabi, and the regulatory presumption of future fear arising out of past persecution that applies in many asylum cases.^[14] Yet, the BIA has only recently and fairly timidly addressed the manifest lack of respect for asylum seekers and failure to guarantee fairness and due process for such vulnerable individuals in some cases arising in Atlanta and other courts with unrealistically low grant rates.^[15]

Over the past 16 years, the BIA’s inability or unwillingness to aggressively stand up for the due process rights of asylum seekers and to enforce the fair and generous standards required by American law have robbed our Immigration Court System of credibility and public support, as well as ruined the lives of many who were denied protection that should have been granted. We need a BIA which functions like a Federal Appellate Court and whose overriding mission is to ensure that the due process vision of the Immigration Courts becomes a reality rather than an unfulfilled promise.

Fifth, 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.

GETTING INVOLVED

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 student, 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.

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. Notwithstanding some recently publicized problems with policing the system, which I wrote about on my blog immigrationrcourtside.com, this is a critically important program for expanding representation in Immigration Courts. The “accredited representative” program is also an outstanding opportunity for retired individuals, like professors, who are not lawyers to qualify to provide pro bono representation in Immigration Court to needy migrants thorough properly recognized religious and community organizations.

Even if you are not practicing or do not intend to practice 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 and religious groups that assist migrants for little or no charge. Never has the need for such services been greater.

But, 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.

CONCLUSION

In conclusion, I have introduced you to one of America’s largest and most important, yet least understood and appreciated, court systems: the United States Immigration Court. I have shared with you the Court’s noble due process vision and my view that it is not currently being fulfilled. I have also shared with you my ideas for effective court reform 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. Have a great conference!

(05/12/17)

^[1] Matter of Lennon, 15 I&N Dec. 9 (BIA 1974), rev’d Lennon v. INS, 527 F.2d 187 (2d Cir. 1975).

^[2] Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).

^[3] TRAC Immigration, “Representation is Key in Immigration Proceedings Involving Women with Children,” Feb. 18, 2015, available online at http://trac.syr.edu/immigration/reports/377/.

^[4] “Immigration Director Calls for Overhaul of Broken System,” NBC Bay Area News, May 27, 2015, available online.

^[5] Guchshenkov v. Ashcroft, 366 F.3d 554 (7th Cir. 2004) (Evans, J., concurring).
^[6] Hon. Thomas G. Snow, “The gut-wrenching life of an immigration judge,” USA Today, Dec. 12, 2106, available online at http://www.usatoday.com/story/opinion/2016/12/12/immigration-judge-gut-wrenching-decisions-column/95308118/

^[7] Julia Preston, “Lawyers Back Creating New Immigration Courts,” NY Times, Feb. 6, 2010.

^[8] INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

^[9] INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

^[10] Matter of Mogharrabi, 19 I&N Dec. 4379(BIA 1987).

^[11] Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295 (2007);

^[12] All statistics are from the EOIR FY 2015 Statistics Yearbook, available online at https://www.justice.gov/eoir/page/file/fysb15/download,

^[13] See Emory Law/SPLC Observation Study Rips Due Process Violations At Atlanta Immigration Court — Why Is The BIA “Asleep At The Switch” In Enforcing Due Process? What Happened To The EOIR’s “Due Process Vision?” in immigrationcourtside.com, available online at http://immigrationcourtside.com/2017/03/02/emory-lawsplc-observation-study-rips-due-process-violations-at-atlanta-immigration-court-why-is-the-bia-asleep-at-the-switch-in-enforcing-due-process-what-happened-to-the-eoirs-due-proces/

^[14] See 8 C.F.R. § 1208.13(b)(1).

^[15] See, e.g., Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) (denial of due process where IJ tried to bar the testimony of minor respondent by disqualifying him as an expert witness under the Federal Rules of Evidence). While the BIA finally stepped in with this precedent, the behavior of this Judge shows a system where some Judges have abandoned any discernable concept of “guaranteeing fairness and due process.” The BIA’s “permissive” attitude toward Judges who consistently deny nearly all asylum applications has allowed this to happen. Indeed the Washington Post recently carried a poignant story of a young immigration lawyer who was driven out of the practice by the negative attitudes and treatment by the Immigration Judges at the Atlanta Immigration Court. Harlan, Chico, “In an Immigration Court that nearly always says no, a lawyer’s spirit is broken,” Washington Post, Oct. 11, 2016, available online at https://www.washingtonpost.com/business/economy/in-an-immigration-court-that-nearly-always-says-no-a-lawyers-spirit-is-broken/2016/10/11/05f43a8e-8eee-11e6-a6a3-d50061aa9fae_story.html

How does this live up to the EOIR Vision of “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all?” Does this represent the best that American justice has to offer?

EOIR Embroiled In Controversy On Several Fronts!

Few agencies in the U.S. Government are as publicity and conflict averse as the Executive Office for Immigraton Review (“EOIR,” pronounced “Eeyore”), a division of the U.S. Department of Justice that houses the U.S. Immigration Court system. So, officials at EOIR and their DOJ handlers must be “going bananas” (when they aren’t preoccupied with the Comey firing) about several recent news items that cast an unwelcome spotlight on the agency.

First, super-sleuth NPR reporter Beth Fertig smoked out the story of ex-con Carlos Davila (12 years in prison for first-degree manslaughter and sexual abuse while on parole) who is using the EOIR “recognition and accreditation” program to practice law (without a license) under the guise of being a “nonprofit charitable organization.” Davila is apparently under investigation by EOIR, but continues to practice.

As a result of Beth’s story, New York Congresswoman Nydia Velázquez has asked the House Judiciary Committee to investigate the program.

As noted in the article, the “R&A” program, allows well-qualified non-attorneys working at reputable nonprofit charitable organizations to represent migrants in Immigration Court and/or before the DHS. The R&A program fills a critically important role in providing due process in the U.S. Immigration Courts. This is particularly true today, in light of increased enforcement and very limited pro bono and “low bono” immigration attorney resources.

The Davila situation, as described by Beth, sounds like a scam to me. Under the regulations, “accredited representatives” are supposed to be working for “recognized organizations” — nonprofits that provide legal services (usually along with other types of social services) on a largely pro bono basis.

Only “nominal fees” can be charged. But the term “nominal fees” has never been defined. We worked on it, off an on, for most of my tenure as BIA Chair in the late 1990s and never could come up with a specific definition that was acceptable to both NGOs and bar associations.

From the article, it appears to me that Davila is actually running a profit-making law firm for himself and his staff under the “shell” of a non-profit. For example, charging someone $200 for a piece of paper that basically restates their rights under the Constitution, the INA, and the regulations seems far beyond a “nominal fee.” The research is simple, and the card itself could be printed off for a few cents a copy. So, $200 seems grossly excessive.

Also, fees of $1,000 to $3,500 for asylum applications seem to be beyond “nominal fees.” If fact, that’s probably close to what some legitimate “low bono” law firms would charge. So, it seems like Davila is really practicing law for a living without a license, rather than providing essentially pro bono services for a charitable organization.

I agree that there should be more thorough investigation and vetting of organizations and accredited representatives by EOIR. This seems like something that should be right up Attorney General Sessions’s alley.

To my knowledge, EOIR does not currently employ any “investigators” who could be assigned to the EOIR staff working on the recognition and accreditation program. But there are tons of retired FBI agents and DHS agents out there who could be hired on a contract basis to do such investigations. Given the money that this Administration is planning to throw at immigration enforcement, finding funds for a needed “upgrade” to this program should not be a problem.

Here are link’s to Beth’s initial article and the follow-up:

http://www.wnyc.org/story/felon-has-federal-approval-represent-immigrants-and-now-hes-selling-this-id

http://www.wnyc.org/story/congresswoman-calls-more-oversight-non-lawyers-representing-immigrants

The second controversial item concerns an ongoing dispute between the Federation for American Immigration Reform (“FAIR”) and the Immigration Reform Law Institute (“IRLI”) on one side and the Southern Poverty Law Center (“SPLC”) and other immigrants’ rights groups on the other. In 2014, the SPLC and other advocacy groups requested that the BIA “strike” an amicus brief filed by FAIR and IRLI because, among other things, FAIR was a “hate group.” FAIR responded by asking EOIR to discipline the SPLC and other advocacy group attorneys involved for “unprofessional conduct.”

On March 28, 2016, the EOIR Disciplinary Counsel issued a confidential letter finding that the SPLC and related attorneys had engaged in professional misconduct. However, in lieu of formal disciplinary proceedings, the Disciplinary Counsel issued a “reminder” to the concerned attorneys “that practitioners before EOIR should be striving to be civil and professional in their interactions with each other, the public, and the Board and Immigration Courts.”

But, that was not the end of the matter. On May 8, 2017, the IRLI published the “confidential” letter of discipline on the internet, stating:

“Although the SPLC’s utter lack of ethics was thoroughly condemned by the DOJ, the agency inexplicably requested that FAIR keep their conclusions confidential. FAIR and IRLI have complied with the request for more than a year; however, in that time, the SPLC has continued and escalated its attacks on both FAIR and IRLI, likely in part in retaliation for FAIR and IRLI filing a complaint with DOJ regarding its conduct. At this time, IRLI has decided it must release the letter to defend itself and protect its charitable purposes.”

So, now, the EOIR “confidential” letter is sitting smack dab in the middle of what looks like the “Hundred Years War” between FAIR and the SPLC. Not the kind of “stuff” that EOIR and DOJ like to be involved in!

On the plus side, perhaps in response to this situation, the BIA in 2015 changed its amicus procedures to publicly request briefing from any interested party in matters of significant importance that likely will lead to precedent decisions. Indeed, a number of such notices have been published on this blog.

Here’s a copy of the IRLI posting which contains a link to the 2014 “confidential” letter from the EOIR Disciplinary Counsel.

http://www.prnewswire.com/news-releases/irli-releases-obama-justice-department-reprimand-of-the-southern-poverty-law-center-over-its-derogatory-tactics-frivolous-behavior-300453406.html

Stay tuned.

PWS

05-10-17

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