"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Far right activist 5th Circuit Judges reacting to colleagues who followed law and ruled in favor of immigrants. PHOTO: Creative Commons.
The issue is whether an in absentia removal order can be based on a statutorily defective notice. The panel followed the Supreme’s decision in Niz-Chavez and rejected the BIA’s conflicting decision in Matter of Laparra. In other words, the panel required the Government to follow the statute, a process known as “complying with the law.” This sent some of this most conservative circuit’s most far-right judges over the edge. Here’s the en banc decision:
Credit Dan Kowalski over at LexisNexis for the “food fight” characterization.
The scofflaw GOP dissenters cited “deference” to the Executive, something they have pointedly refused to apply to Biden Administration precedents and policies favoring migrants.
The majority says: “[The BIA] flies in the face of the Supreme Court’s Pereira decision, which Laparra ignored.”
Incredibly, Garland is on the “wrong side” of this controversy, defending the legally incorrect misinterpretation of his “Trump holdover” BIA!
The statutory requirement at issue: That a “Notice to Appear” before the Immigration Court inform the individual of the time and place of the hearing. How difficult does that sound? Not very, unless you are bumbling bureaucrat at DHS and EOIR who chose, even after the Supremes’ initial decision, toviolate that decision and the statute in almost 100% of the cases instituted before the Immigration Courts!
Kudos to the 3 Trump appointees and one Bush II appointee who joined 3 Obama appointees and 2 Clinton appointees to uphold the rule of law and thwart their GOP scofflaw colleagues.
Interestingly, and perhaps mildly encouraging, the “Trump appointees” split 3-3 on this one.
Apparently nothing drives a wedge between conservative judges like the scary prospect of following the law when it gives immigrants a win!
Future ambitious academic study: How much of the current out of control backlog can be traced to the Government’s, and particularly the BIA’s, inept handling of straightforward notice requirements set forth in the statute?
There’s a reason why I keep referring to Garland’s out of control EOIR backlogs as “largely self-created,” albeit in fairness not exclusively by him. The Trump Administration, and to a lesser extent the Obama Administration, also “excelled” at “Aimless Docket Reshuffling” driven by “prioritizing” improper political goals over due process, fundamental fairness, quality, and practical scholarship in the Immigration Courts.
The U.S. Supreme Court ruled in June that the Trump administration wrongly tried to shut down protections under the Obama-era legislation known as DACA, or Deferred Action for Childhood Arrivals. On July 28, Wolf nonetheless suspended DACA pending review.
Homeland Security did not immediately respond to a request for comment.
Judge Nicholas Garaufis said court conferences would be held to work out details of his ruling.
He concluded, “Wolf was not lawfully serving as Acting Secretary of Homeland Security under the HSA [Homeland Security Act] when he issued the Wolf Memorandum” that suspended DACA.
Karen Tumlin, a lawyer in the case and director of the Los Angeles-based Justice Action Center, said the ruling means, “the effort in the Wolf memo to gut the DACA program is overturned.”
She said the ruling applies to more than a million people, including more recent applicants and those seeking two-year renewals for protection under DACA.
“This is really a hopeful day for a lot of young people across the country,” Tumlin said.
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Read the rest of the article at the link.
Congrats to Karen and others who are fighting against the “illegals” in the Trump regime. Ironically, the DACA folks are huge contributors to America’s success😎; the “illegals” in the Trump regime, not so much🤮. Seems like there should be “sanctions” for knowingly and intentionally employing fake “cabinet officials” like Wolfman in violation of law👎🏻!
Karen Tumlin is a nationally recognized impact litigator focusing on immigrants’ rights. She successfully litigated numerous cases of national significance, including a challenge to the Trump Administration’s effort to end the DACA program and the Muslim Ban, as well as the constitutional challenge to Arizona’s notorious anti-immigrant law, SB 1070. She formerly served as the Director of Legal Strategy and Legal Director for the National Immigration Law Center, where she built a legal department of over 15 staff who developed and led cases of national impact.
Justice Action Center is a new nonprofit organization dedicated to fighting for greater justice for immigrant communities by combining litigation and storytelling. There is tremendous unmet need in the litigation landscape for immigrant communities. JAC is committed to bringing additional litigation resources to bear to address unmet needs in currently underserved areas. There is also untapped potential in how litigation can be combined with digital strategies to empower clients and change the corrosive narrative around immigrants. Communications content around litigation that focuses primarily on putting forward legal voices to talk about immigrants does not have the same authentic voice as putting forward immigrants as the protagonists. JAC will focus on the creation of original content that amplifies immigrant voices. We believe that real change will come only when a larger base of supporters are activated on immigration issues—only then will courthouse wins pave the way for lasting change. JAC will partner with direct service providers and organizers to leverage the power of the existing landscape of immigrants’ rights organizations and also to fill in holes where impact litigation should be brought (but currently isn’t), or where communications and digital expertise could help reshape the narrative around immigration and immigrants.
The Problem
Urgent, Unmet Legal Need in the Immigrants’ Rights Field
Impact litigation has been an essential tool in blunting the Trump administration’s abuses against immigrants—but capacities are stretched thin and deployed unevenly. As a result, important civil rights abuses are going unchallenged.
Lawsuits attract media attention at key moments, but little planning is done to drive the narrative. Deliberate, client-driven communications plans are needed to maximize these moments to engage new audiences on immigration
Unequal Treatment
Precious impact litigation resources are currently being spread unevenly. While there is a deep bench of attorneys ready to take on high-profile issues, such as the termination of DACA or the latest asylum ban, other issues appear to have no legal advocacy. Examples include the massive worksite raids in underserved states such as Ohio and Texas or the severe abuses immigrants face in the nation’s vast detention system.
Underrepresented in Digital Media
There is a paucity of original, immigrant-centered digital content. The nation’s narrative no longer has to be set only by policymakers—it can be shaped by everyday people, including immigrants. We have not harnessed the power of the current digital landscape to promote pro-immigrant messages and engage new audiences.
JAC’s Solutions
1. Litigate on topics and in locations of unmet need.
2. Create original, immigrant-centered content designed to activate new audiences
3. Partner with direct services providers and organizers to elevate movement impact.
Get Involved
You can be part of helping build Justice Action Center.
Welcome Karen and the JAC to the fight for Due Process, fundamental fairness, and human decency! Nothing less than the survival of our nation, and perhaps civilization, is at stake here!
The litigation angle is so critically important to this all-out war! The Federal Appellate Courts, and particularly the Supremes, have been largely complicit in Trump’s White Nationalist attack on the Rule of Law. There is no excuse whatsoever for the continuing unconstitutional outrages against individuals being committed by a biased Immigration Court System unlawfully controlled by biased and corrupt politicos.
Would a Federal Appellate Court Judge or a Supreme Court Justice agreeto be tried for his or her life in a “court” before “judges” controlled by their prosecutor? Of course not! So why is it “Constitutionally OK” for asylum seekers and other vulnerable individuals to be “tried” (often without lawyers or even “in absentia”) by “judges” controlled by Trump, Barr, and indirectly McAleenan? Why it “Constitutionally OK” for individuals whose only “crime” is asserting their legal rights to be detained indefinitely (sometimes until death) in conditions that would be held unconstitutional in an eyeblink if applied to convicted criminals?
Think I’m making this up? Check out he dissent by Justice Sotomayor (joined by Justice Ginsburg) in Barr v. East Side Sanctuary Covenant. There, seven of her spineless colleagues didn’t even bother to justify their decision lifting a lower court stay of a grotesque attack by the Trump Administration on the legal rights (and lives) of asylum seekers that violated the Constitution, a host of statutes and regulations, and international standards. Not only that, but it also enables a lawless Solicitor General to continue to cynically “short-circuit” the legal system and go directly to what Trump and his followers (contemptuously, but apparently correctly) believe to be a thoroughly compromised Supreme Court.https://immigrationcourtside.com/2019/09/11/supreme-tank-complicit-court-ends-u-s-asylum-protections-by-7-2-vote-endorses-trumps-white-nationalist-racist-attack-on-human-rights-eradication-of-refugee-act-of-1980/
Undoubtedly energized by this exercise in “Supreme Complicity,” the Trump Administration has released a dizzying barrage of new attacks on the legal rights and humanity of migrants of all types, from asylum seekers to green card holders and immigrant visa applicants, in the weeks following East Side Sanctuary.
Or, check out this dissenting statement of Eleventh Circuit Judge Adelberto Jose Jordan in Diaz-Rivas v. U.S. Att’y Gen.:
In my view, Ms. Diaz-Rivas’ statistics—showing that from 2014 through 2016 asylum applicants outside of Atlanta’s immigration court were approximately 23 times more likely to succeed than asylum applicants in Atlanta—are disquieting and merit further inquiry by the BIA. See City of Miami, 614 F.2d at 1339. If these statistics pertained to a federal district court, the Administrative Office would begin an investigation in a heartbeat.
So what’s the result of the Eleventh Circuit majority’s cowardly abandonment of the Fifth Amendment? In a spectacular “in your face” move undoubtedly meant to play on the spineless response of the Eleventh Circuit to the “Asylum Free Zone” created in the Atlanta Immigration Court, Billy Barr actually promoted two of the Atlanta judges with the highest asylum denial rates, renowned for their rude and disrespectful treatment of asylum applicants and their lawyers, to the Board of Immigration Appeals as part of his “court packing scheme” to promote worst practices and anti-asylum bias.
In other words, as a consequence of the Eleventh Circuit’s spineless complicity in the face of clear Due Process violations, these unqualified judges have now been empowered to abuse and refuse asylum applicants from coast to coast. Judicial corruption and complicity has real human life consequences for those trying to just survive below the “radar screen” of exalted overprivileged Ivory Tower Federal Appellate Judges.
Every time an Appellate Judge signs off on a removal order produced without a fair and impartial adjudication in the unconstitutional Immigration Courts he or she is violating their oath of office. We’ve had enough! Why have life-tenured judges if they won’t stand up for our individual rights? It’s time to put an end to this cowardly judicial complicity in violation of our fundamental Constitutional rights (not to mention a host of statutory and regulatory violations that go unchecked in Immigration Courts every day).
That’s where the “5 C’s” come into play: Constantly Confront Complicit Courts 4 Change!
At the same time, make an historical record of those judges who “stood small” in the face of Trump’s vicious and corrupt assault on our Constitution and our democratic institutions, not to mention the lives and well-being of vulnerable migrants!
