Representation – Page 55 – immigrationcourtside.com

Law360: U.S. Solicitor General — Plum Or Lemon?

Andrew Strickler at Law 360 suggests that what was once Washington’s “best legal job” might now be a “career ender” rather than a “career enhancer.” Still, probably a far cry from being the Commissioner of the “Legacy Immigration and Naturalization Service,” sometimes described as “the worst Presidential appointment in Government.”

Those of you who subscribe to Law 360 (I don’t, so all I read was the “teaser”) can read the full article here:

https://www.law360.com/articles/891376?utm_source=rss&utm_medium=rss&utm_campaign=articles_search

PWS

02/16/17

WashPost: Professors (And Former USG Senior Execs) Martin & Legomsky Analyze Judge Brinkema’s Travel Ban Decision — Religious Discrimination Finding Might Be Key To Opponents’ Future Success (Or Not)!

https://www.washingtonpost.com/local/public-safety/why-virginia-matters-in-the-travel-ban-fight/2017/02/14/27cfff3c-f2ec-11e6-b9c9-e83fce42fb61_story.html?utm_term=.880047c24800

Rachel Weiner reports:

“’Judge Brinkema spells out a lot more; she really fleshes out one of the possible claims, and that’s the religious discrimination claim,’” said David Martin, a professor at the University of Virginia who, for many years, helped shape immigration policy inside the government. ‘That may well prove to be the strongest or more fruitful line of inquiry for the plaintiffs in these various cases, particularly if they’re trying to reach past green-card holders or people on immigrant visas. It’s hard to get there without a religious discrimination case of some kind.’”

. . . .

“’It was a very well-reasoned, thoughtful decision. Frankly, I think, a more careful decision than the 9th Circuit decision,’ said Steve Legomsky, former chief counsel for immigration services in the Department of Homeland Security. In her opinion, Legomsky said, Brinkema ‘pretty methodically went through the various statements by Trump. . . . They put great weight on the opinions of the former national security officials to show the absence of counterevidence from the Trump administration. For both of those reasons, I think the Virginia opinion is very important.’
Brinkema also brings to the case extensive national security experience. She presided over the trial of Sept. 11, 2001, conspirator Zacarias Moussaoui, among other high-profile cases.

‘It was a thoughtful opinion, it’s well considered, it wasn’t hastily done like some of these other decisions had to be in light of circumstances,’ said Justin Cox of the National Immigration Law Center. His group is involved in several lawsuits against the ban, including one filed in Maryland last week focused on refugees. That case is specifically focused on religious discrimination.

‘Legally [the Virginia ruling] is actually quite significant because it’s the first court to squarely hold that the executive order violates the establishment clause,’ Cox said.

The danger for opponents of the ban is that, should the Justice Department appeal Brinkema’s decision, they will face the more conservative 4th Circuit rather than the left-leaning 9th Circuit.

‘It would be a close call,’ Legomsky said. ‘There is such strong evidence of religious discrimination — it’s really hard to know.’”

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As noted in this article, in addition to being leading academic “immigration gurus,” both Professor Martin and Professor Legomsky have lived in the “real world” of shaping Government policies and managing programs that actually implement those policies.

As they point out, while many of the objections to the “travel ban” could be eliminated by applying it just prospectively to those outside the U.S. who have not previously been admitted, that wouldn’t necessarily overcome Judge Brinkema’s finding that the “national security” reasons asserted by the Government in her court were merely “pretext” for unconstitutional religious discrimination.

While Justin Cox might be correct that the Fourth Circuit is not as liberal as the Ninth Circuit, that distinction probably would apply to every other Circuit Court of Appeals. Having spent 13 years as an Immigration Judge in Arlington, where my decisions ultimately could be reviewed by the Fourth Circuit and Fourth Circuit law applied, I found their immigration rulings very balanced. Indeed, they sometimes cited Ninth Circuit precedent and even were ahead of the Ninth in recognizing some migrants’ rights.

While the Fourth Circuit affirmed the overwhelming majority of BIA and Immigration Judge decisions in unpublished, non-precedential decisions, when they spoke in published precedents they always had important guidance to offer. The Fourth Circuit also was not afraid to stand up to the Government and “call them out” when necessary in the field of immigration.

And, at least in the Arlington Immigration Court, we trial judges paid close attention. I think that the Fourth Circuit’s very fair and well-reasoned asylum jurisprudence, in some significant ways more faithful to the asylum law and regulations than rulings of the BIA, was one reason why asylum applicants were often successful in Arlington. That’s also why many asylum cases in Arlington could be resolved by the parties in “short hearings” based on extensive written documentation and application of the Fourth Circuit law.

There is also a wonderful pastel portrait of Judge Brinkema in her court with the full article at the link. Check it out!

PWS

02/16/17

What Are The Odds Of The US Immigration Courts’ Surviving The Next Four Years?

What Are The Odds Of The U.S. Immigration Courts’ Survival?

by Paul Wickham Schmidt

Despite the campaign promises to make things great for the American working person, the Trump Administration so far has benefitted comedians, lawyers, reporters, and not many others. But there is another group out there reaping the benefits — oddsmakers. For example, Trump himself is 11-10 on finishing his term, and Press Secretary Sean “Spicey” Spicer is 4-7 to still be in office come New Year’s Day 2018.

So, what are the odds that the U.S. Immigration Courts will survive the next four years. Not very good, I’m afraid.

Already pushed to the brink of disaster, the Immigration Courts are likely to be totally overwhelmed by the the Trump Administration’s mindless “enforcement to the max” program which will potentially unleash a tidal waive of ill-advised new enforcement actions, detained hearings, bond hearings, credible fear reviews, and demands to move Immigration Judges to newly established detention centers along the Southern Border where due process is likely to take a back seat to expediency.

While Trump’s Executive Order promised at least another 15,000 DHS immigration enforcement officers, there was no such commitment to provide comparable staffing increases to the U.S. Immigration Courts. Indeed, we don’t even know at this point whether the Immigration Courts will be exempted from the hiring freeze.

At the same time, DHS Assistant Chief Counsel are likely to be stripped of their authority to offer prosecutorial discretion (“PD”), stipulate to grants of relief in well-documented cases, close cases for USCIS processing, and waive appeals.

Moreover, according to recent articles from the Wall Street Journal posted over on LexisNexis, individual respondents are likely to reciprocate by demanding their rights to full hearings, declining offers of “voluntary departure” without hearing, and appealing, rather than waiving appeal of, most orders of removal. Additionally, the Mexican government could start “slow walking” requests for documentation necessary to effect orders of removal.

Waiting in the wings, as I have mentioned in previous posts, are efforts to eliminate the so-called “Chevron doctrine” giving deference to certain BIA decisions, and constitutional challenges that could bring down the entire Federal Administrative Judiciary “house of cards.”

The sensible way of heading off disaster would be to establish an independent Article I Court outside the Executive Branch and then staff it to do its job. Sadly, however, sensibility so far has played little role in the Trump Administration. Solving the problem (or not) is likely to fall to the Article III Courts.

So, right now, I’m giving the U.S. Immigration Courts about 2-3 odds of making it through 2020. That’s a little better chance than “Spicey,” but worse than Trump himself.

To read the WSJ articles on the “clogging the courts” strategy, take this link over to LexisNexis:

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/archive/2017/02/13/will-strong-defensive-tactics-jam-immigration-jails-clog-immigration-courts-wsj.aspx?Redirected=true

PWS

02/14/17

Health: Fear Is Harmful To Your Health — Deportation Anxiety!

https://www.washingtonpost.com/posteverything/wp/2017/02/10/living-in-fear-as-a-refugee-in-the-u-s-is-terrible-for-your-health/?hpid=hp_no-name_opinion-card-f%3Ahomepage%2Fstory&utm_term=.704d0ac8184d

From the Washington Post:

“The damage to the next generation may be compounded by other, less obvious assaults on their biology and psychology. Research by Rachel Yehuda and her colleagues at Mount Sinai Hospital in New York has demonstrated that the consequences of Holocaust survivors’ extreme trauma can be passed down to their children and grandchildren, making them exquisitely sensitive to the ordinary stresses of relatively safe lives. Yehuda and other researchers believe that these are “epigenetic” effects, modifications in the ways genes express themselves, which transmit vulnerabilities to stress from one generation to the next. Though the mechanisms are not completely understood, animal studies as well as those on human adults who were abused as children demonstrate similar changes.

“There is no short-term fix for this kind of damage,” Lori Kaplan commented sadly, thinking about the young people and their families who are anxiously calling her and her colleagues, reporting physical and emotional distress, looking for answers. “We’ve been dealing with the trauma of the immigrant experience for so long,” the flight from violence, the loneliness, the poverty, the struggle to survive in a strange land and the longing for home. “Obama was deporting people, sure, and there was anxiety, but he also gave us hope. And now the roof’s been blown off.”

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PWS

02/11/17

Read The Feb. 2017 New Jersey Lawyer Dedicated To Immigration — Law You Can Use — Articles by the Hon. Dorothy Harbeck (Elizabeth Immigration Court) and Others!!

NJLFeb2017

Check out the Table of Contents:

FEATURES

Raising the Bar for Immigrant Representation in New Jersey 10

by Farrin Anello and Lori A. Nessel

A Step Toward Justice—Universal Representation
and Access to Counsel for New Jersey Immigrants 14

by Amy Gottlieb and Nicole Polley Miller

Naturalization, Jersey Style—
The Process, the Perks, and the Pitfalls 20

by Angie Garasia

Born as Equals and Subject to Lady Liberty 26

by Cesar Martin Estela

A View from the Bench—The Commonsense
of Direct and Cross-Examinations in Immigration Court 30

by Hon. Dorothy Harbeck

Immigration and Mental Health Forensics—
An Unexpected Interdisciplinary Connection 37

by Lauren Anselowitz and Daniel L. Weiss

Lessons Learned from the Trenches—Best Practices
for Immigration-related Federal Investigations 42

by Valentine Brown

Tips to Effectively Recruit, Retain and Terminate
Foreign Workers 46

by Scott R. Malyk and Anthony F. Siliato

Responding to the Child Migrant Crisis 54

by Joanne Gottesman, Anju Gupta, and Randi Mandelbaum

PWS

02/11/17

Know Your Rights Presentation with Professor Alberto Benitez and Chris Carr, JD ’17

https://vimeo.com/user9108723/review/203448069/ae155e4ae3

Professor Benitez and his students from the George Washington Law School Immigration Clinic have consistently made huge contributions to due process and the excellence of immigration practice at the Arlington Immigration Court. I highly recommend this educational video!!

PWS

02/11/17

The Sessions Era Begins At The USDOJ

https://www.washingtonpost.com/blogs/plum-line/wp/2017/02/09/jeff-sessions-is-now-the-attorney-general-here-are-the-four-biggest-things-to-fear/

Greg Sargent writes in The Morning Plum in today’s Washington Post:

“Jeff Sessions has now been confirmed as attorney general, and this vaults him to a position in American life that is unique. Perhaps more than any other person, Sessions stands at the nexus of many of the potential plot lines that we should fear most about the Donald Trump presidency.

Here are the possibilities we need to worry about. President Trump’s refusal to divest from his business holdings creates the possibility of untold conflicts of interest and even full-blown corruption on an unprecedented scale. The hostility of Trump and Republicans to a full, independent probe into Russian meddling in the election may mean there will never be a full public accounting of what happened, which could make a repeat more likely.
Trump’s year of lies about voter fraud, and his campaign vows of explicit persecution of minorities, could signal further voter suppression efforts, weakened civil rights protections, and the use of state power against Muslims and undocumented immigrants in draconian or discriminatory ways. Trump’s well-documented authoritarian impulses could conceivably tip him into genuine authoritarian rule, in which, for instance, the power of the state is turned against critics or political opponents.

Sessions is now in a unique position to facilitate and enable — or, by contrast, to act as a legal check on — some or all of these possibilities, should they metastasize (or metastasize further) into serious threats to vulnerable minorities or, more broadly, to our democracy. Here are the things to fear:

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You can read the full article at the link. Although noting Session’s involvement with immigration, Sargent overlooks what is likely to be AG Session’s biggest legacy, for better or, as many expect, for worse. That is his unilateral control over the United States Immigration Courts, perhaps America’s largest and most important Federal Court System, with 530,000+ pending cases, and hundreds of thousands (if not millions) about to be pushed into the already clogged “pipeline” under President Trump’s Executive Orders on immigration enforcement. Unlike most administrative courts within the Executive Branch, the Immigration Court not only has authority to order what in many cases can be indefinite “civil detention” but also to impose permanent exile on individuals (and, as a de facto matter on their U.S. citizen families), including some who were legally admitted to the United States and have resided here many years with “green cards.” Even in the area of criminal law, few judges in any system possess comparable authority to permanently affect the lives of so many individuals, their families, and their communities.

PWS

02/09/17

GW Hatchett: Professor Alberto Benitez’s GW Immigration Law Clinic Serves The Community While Teaching “Real Life” Legal Skills!

https://www.gwhatchet.com/2017/02/05/law-school-immigration-clinic-readies-for-trump-impact/

“As international students across the country grappled this week with the fallout from President Donald Trump’s immigration executive order, a group of law students were bracing to defend undocumented immigrants.

Student-attorneys from GW Law School’s Immigration Clinic arranged to hold information sessions for international students and collect donations to educate the public about what they called a misunderstood immigration system and the potential impact of Trump’s executive order.

The order blocked all refugee resettlement for four months and banned entry into the United States for citizens from seven Muslim-majority countries for 90 days. On Friday, a federal judge temporarily halted the order, reopening the country’s borders to previously blocked travelers and refugees.

While attorneys said no more students than usual have called for legal representation, they were barraged with emails from concerned international students.

The clinic co-hosted a “Know Your Rights” presentation Thursday with the Muslim Law Students Association to offer advice for non-resident students who were concerned about their immigration status.

“We’re trying to be more proactive. I think everybody right now wants to be more proactive and wants to know what can we do,” clinic attorney and law school student Fanny Wong said.

The clinic provides free legal representation for clients who face deportation or are seeking asylum or U.S. citizenship, student-attorneys said. On Tuesdays and Wednesdays, law school students wait by the phone fielding calls from immigrants who need help. Each of the nine law students takes in an average three clients at a time. The length of each case varies, some drag though the legal system for years requiring multiple students to take up the case.

Attorneys said the clinic currently didn’t have any clients from the seven affected countries, but Wong said she had a client from Sudan who became a naturalized citizen in October after a nearly nine-year-long process.

“Can you imagine the situation that she would have been had this been two months ago?” she said. “She’s relieved as well, but she’s also scared for her family and friends.”

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

There will be no shortage of need for well-trained immigration and Constitutional lawyers on all sides of these issues. And, there also will be a continuing need for fair, thoughtful, scholarly judges who can find the way through the legal labyrinth of immigration and nationality law at the intersection with Constitutional protections and authorities.

PWS

02/06/15

Judge Edward F. Kelly Was Just Appointed To The “High Court Of Immigration” — Who Knew?

The answer is that “almost nobody knew” outside of the insular “tower” world of EOIR Headquarters in Falls Church, VA. It took some super sleuthing by ace Legal Reporter Allissa Wickham over at Law 360 to smoke this one out.

With a little help from her friends, the fabulous “AWick” came upon Judge Kelly’s name in the Roster of Board Members in The Board of Immigration Appeals (“BIA”) Online Practice Manual. (As the BIA Practice Manual was instituted during my tenure as BIA Chair, I’m gratified that someone out there is actually reading it.)

Armed with that tidbit of information, AWick was able to get confirmation of Judge Kelly’s appointment from EOIR spokesperson Kathryn Mattingly on Friday evening. Interestingly, Judge Kelly’s biography no longer appears in the online listing for the Office of Chief Immigration Judge, where he had served for a number of years as a Deputy Chief Immigration Judge. Nor has his name or biography appeared under the online listing for the BIA. In other words, Judge Kelly is somewhat “lost in EOIR space” — close to being a bureaucratic “non-person.”

For those who don’t know, the BIA is the highest administrative tribunal in the filed of immigration. With an authorized membership of 16 Appellate Immigration Judges (Judge Kelly became #15, leaving one vacancy), the BIA received more than 29,000 cases and completed more than 34,000 cases in FY 2015 and had nearly 17,000 pending at the end of that year. By comparison, for the same period, the U.S. Supreme Court received 6,475 cases and took only 81 for oral argument.

The Board also issues nationwide precedents that are binding on the U.S. Immigration Courts and the DHS. Although a part of the Executive, not the Judicial Branch, the BIA effectively occupies a position in our justice system just below that of a U.S. Court of Appeals.

Moreover, as I have pointed out in other blogs, because of the idiosyncrasies of the Supreme Court’s so called “Chevron doctrine,” the Courts of Appeals actually are required to “defer” to the BIA’s interpretation of ambiguous questions of law. Indeed, under the Supreme Court’s remarkable “Brand X doctrine” (“Chevron on steroids”) under some circumstances the BIA can reject the legal reasoning of a Court of Appeals and apply its own interpretation instead.

In other words, notwithstanding their rather cloistered existence, and attempt to remain “below the radar screen,” BIA Appellate Immigration Judges are some of the most powerful judges in the entire Federal Justice system. That makes the lack of publicity about Judge Kelly’s elevation to the appellate bench even more curious.

For those who don’t know him, Judge Kelly started moving “up the ladder” at EOIR when I appointed him to a newly created staff supervisory position at the BIA in the mid-1990s. He was selected because of his reputation for fairness, scholarship, strong writing, collegiality, and ability to teach and inspire others. In other staff positions at the BIA, Judge Kelly became a master of understanding, explaining, and recommending improvements to the case management system. I believe it was those skills and understanding of the mechanics of the Immigration Court System that made him rise to a Deputy Chief Judge position within the Office of Chief Immigration Judge in Falls Church.

Judge Kelly was at the BIA in the late 1990s when the EOIR Executive Group developed the “EOIR Vision” of “through teamwork and innovation, being the world’s best administrative tribunals, guaranteeing fairness and due process for all.” Although over the years, Department of Justice and EOIR management have essentially downplayed and moved away from any public expression or reinforcement of this noble vision, I’m confident that Judge Kelly remains committed to the due process mission we all embarked upon together several decades ago.

From his prior vantage point as a Deputy Chief Immigration Judge, Judge Kelly saw first-hand the docket and due process disaster caused by the DOJ’s politicized meddling in the daily case management practices of the U.S. Immigration Courts over the past several years. He also witnessed the general failure of the BIA to step up and stand up for the due process rights of individuals being hustled through the system with neither lawyers nor any realistic chance of effectively presenting their claims for potential life saving protection.

I hope that as the “new Appellate Immigration Judge on the block,” Judge Kelly will bring a forceful voice for due process and fairness to his colleagues’ deliberations. By doing so, perhaps he can persuade them to face and address some of the important due process and fairness issues in the Immigration Courts that they have been avoiding.

Judge Kelly’s professional bio (taken from his appointment as Deputy Chief Judge, in the absence of a formal announcement from DOJ/EOIR) is reprinted here:

“FALLS CHURCH, Va. – The Executive Office for Immigration Review (EOIR) today announced the appointment of a second deputy chief immigration judge (DCIJ). Effective March 10, 2013, Assistant Chief Immigration Judge (ACIJ) Edward F. Kelly will become a DCIJ. Judge Kelly will assume direct supervision of the program components in the Office of the Chief Immigration Judge (OCIJ), including the legal unit, the language service unit, the organizational results unit, the chief clerk, and the executive officer.

“Judge Kelly’s appointment as deputy chief immigration judge is in recognition of his tremendous contributions to OCIJ’s efficiencies and services,” said Chief Immigration Judge Brian M. O’Leary. “With his expanded role, I am confident OCIJ will continue to improve our operations and inspire our staff.”

Biographical information follows:

Attorney General Holder appointed Judge Kelly as an ACIJ in March 2011. He received a bachelor of arts degree in 1982 and a juris doctorate in 1987, both from the University of Notre Dame. From November 2009 to March 2011, Judge Kelly served as senior counsel and chief of staff for OCIJ. From 2007 to 2009, he was counsel for operations for OCIJ at EOIR. From 1998 to 2007, Judge Kelly was a senior legal advisor for the Board of Immigration Appeals (BIA), EOIR. From 1995 to 1998, he served as a supervisory attorney and team leader for the BIA. From 1989 to 1993 and again from 1994 to 1995, Judge Kelly was an attorney advisor for the BIA. From 1987 to 1989, he served as an assistant counsel, Subcommittee on Immigration, Refugees, and International Law, U.S. House of Representatives, Washington, D.C. From 1982 to 1984, he served in the U.S. Peace Corps in Gabon, Africa. Judge Kelly is a member of the Virginia State Bar.”

Perhaps, eventually, EOIR will announce Judge Kelly’s appointment. Who knows?

Additionally, those of you with full Law 360 access (which I don’t have) can read AWick’s full article at the Lexis link below.

https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/archive/2017/02/03/board-of-immigration-appeals-gains-new-member.aspx?Redirected=true

PWS

02/04/17

Read The Winter 2017 Edition Of “The Green Card” From The FBA — Includes My Article “Immigration Courts — Reclaiming the Vision” (P. 15) & “The Asylumist” Jason Dzubow’s Reprise Of The “Schmidt Interviews” (See “Immigration Rant,” P. 2)!

Green Card Winter 2017 Final

Here are some excerpts:

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

First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers, which are highly ineffective in any event, must end. That’s unlikely to happen under the 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 has been lost when officials outside EOIR have 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 is not only unfair to all, but has created what I call “aimless docket reshuffling” that has thrown our system into chaos.

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

Another one:

Former BIA Chairman Paul W. Schmidt on His Career, the Board, and the Purge

“Paul Wickham Schmidt served as Chairman of the Board of Immigration Appeals (BIA) from 1995 to 2001. He was a Board Member of the BIA from 2001 to 2003, and served as an Immigration Judge in Arlington, Virginia from 2003 until his retirement earlier this year. He also worked in private practice and held other senior positions in government, including Deputy General Counsel and Acting General Counsel at INS. The Asylumist caught up with Judge Schmidt in Maine, where he has been enjoying his retirement, and talked to him about his career, the BIA, and the “purge” of 2003.”

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Read the complete articles plus lots of other “great stuff” both practical and more philosophical at the above link.

And, for all of you “aspiring writers” out there, Green Card Editor and my good friend and former colleague from the U.S. Immigration Court In Arlington, VA, Hon. Lawrence Owen “Larry” Burman, and the Publications Director, Dr. Alicia Triche, are always looking for “new talent” and interesting articles. Instructions on how to submit manuscripts are on page one.

PWS

02/01/17

BREAKING NEWS: Trump (Predictably) Fires Acting AG Sally Yates For Refusing To Defend Executive Order

https://www.washingtonpost.com/world/national-security/acting-attorney-general-an-obama-administration-holdover-wont-defend-trump-immigration-order/2017/01/30/a9846f02-e727-11e6-b82f-687d6e6a3e7c_story.html?hpid=hp_rhp-banner-main_mobile-banledeall-917am:homepage/story&utm_term=.2bb3e1f21f15

The Washington Post reports tonight:

“President Trump fired Acting Attorney General Sally Yates Monday night, after Yates ordered Justice Department lawyers Monday not to defend his immigration order temporarily banning entry into the United States for citizens of seven Muslim-majority countries and refugees from around the world.

In a press release, the White House said Yates had “betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States.”

The White House has named Dana Boente, U.S. attorney for the Eastern District of Virginia, as acting attorney general. Boente told The Washington Post that he will agree to enforce the immigration order.
Earlier on Monday, Yates ordered Justice Department not to defend President Trump’s immigration order temporarily banning entry into the United States for citizens of seven Muslim-majority countries and refugees from around the world, declaring in a memo that she is not convinced the order is lawful.

Yates wrote that, as the leader of the Justice Department, she must ensure that the department’s position is “legally defensible” and “consistent with this institution’s solemn obligation to always seek justice and stand for what is right.”
“At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful,” Yates wrote. She wrote that “for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.”

Yates is a holdover from the Obama administration, but the move nonetheless marks a stunning dissent to the president’s directive from someone who would be on the front lines of implementing it.”

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Nothing very surprising here. As noted in the article, Yates was a holdover from the Obama Administration. I suppose it’s a nice note of protest for her to end her DOJ tenure.

Nevertheless, Yates was basically a bystander and enabler as her boss, AG Loretta Lynch, and the Obama Administration created chaos in the U.S. Immigration Court system. Lynch and Yates, who, to the best of my knowledge neither set foot inside a U.S. Immigration Court nor took the time to speak in person with sitting judges, mandated enforcement-based priorities which attempted to race vulnerable women, children, and families from Central America seeking refuge in the U.S. through the process on an expedited basis without a reasonable chance to obtain lawyers or present their claims. Indeed, while she might be having pangs of conscience about defending the Trump orders, Yates’s DOJ lawyers had little difficulty defending the facially absurd contention that children who couldn’t even speak English could represent themselves on complex asylum claims in Immigration Court. Meanwhile, those who had been patiently waiting on the Immigration Court’s docket for years and were actually ready to proceed to trial on their claims for relief were arbitrarily “orbited” to the end of the line — years in the future. Yates and Lynch inherited a court system in crisis and left it a disaster.

Then, there was judicial selection. Yates presided over a “Rube Goldberg Type” glacial, hyper-bureaucratized, opaque, hiring process that effectively excluded those outside government from the Immigration Judiciary and the Board of Immigration Appeals, while leaving approximately 75 unfilled positions at the end of the Administration and a BIA structure and system that basically institutionalized and reinforced the aggressively anti-due-process procedures put in place by Attorney General Ashcroft during the Bush Administration. She and her boss left behind total chaos and a due process train wreck that mocked the noble vision of the U.S. Immigration Courts: through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all.

So, forgive me if I can’t get too enthused about Yates’s belated show of backbone. Her gesture was purely symbolic, and cost her nothing, since she was going to be replaced immediately upon Sessions’s confirmation. But, when she actually had a chance to improve due process in the U.S. Immigration Courts, she was, sadly, MIA.

PWS

01/30/17

Copy Of TRO By Judge Leonie Brinkema, EDVA, Prohibiting Removal Of LPRs & Requiring Access To Counsel — Aziz v. Trump

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

Case No. 1:17-cv-116

Date: January 28, 2017

Ammar Aqel Mohammed Aziz, by their next friend,

Aqel Muhammad Aziz, and

John Does 1-60, Petitioners,

DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WAYNE BIONDI, Customs and Border Protection (CBP) Port Director of the Area Port of Washington Dulles,

Respondents.
TEMPORARY RESTRAINING ORDER

Pursuant to Federal Rule of Civil Procedure 65, the Court orders that:

a) respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International Airport;

b) respondents are forbidden from removing petitioners—lawful permanent residents at Dulles International Airport—for a period of 7 days from the issuance of this Order.

Dates: January 28, 2017

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Seems pretty straightforward. Lawful permanent residents (“green card holders”) returning from abroad are entitled to full Removal Hearings before a U.S. Immigration Judge at which the DHS bears the burden of establishing removability by clear and convincing evidence. They are also entitled to representation by counsel of their own choosing (at no expense to the Government) in such a hearing. Therefore, it’s hard to understand the the basis for the apparent DHS claim that they could detain and remove a returning green card holder without a hearing and without allowing him or her access to a lawyer. But, I’ve read and heard reports from local attorneys saying that DHS CBP officials at Dulles International Airport have been slow to comply or resisted complying with Judge Brinkema’s very clear order.

I’ve never personally met Judge Brinkema, who sits in the U.S. District Court a few blocks from our home in Alexandria. But, I’m familiar with her work. Occasionally, one of my custody/bond decisions from the Arlington Immigration Court ended up before her for judicial review by habeas corpus. Sometimes she upheld my decision, sometimes not.

On several occasions, she ordered me to conduct immediate individualized custody hearings for detained individuals notwithstanding BIA precedent to the contrary. I always complied immediately, just as she had ordered. The DHS Arlington Chief Counsel also got on board. Judge Brinkema wasn’t someone you wanted to “mess around with.”

Unlike U.S. Immigration Judges, who were given statutory contempt of court powers by the Congress, only to have that authority withheld by the U.S. Dept. of Justice over three Administrations, Democratic and Republican, Judge Brinkema has authority to hold individuals, including U.S. Government officials, in contempt of court for disobeying her orders. And, I never had the impression that she would be reluctant to do that when necessary.

Additionally, failure to comply with court orders can result in large attorney fee awards against the Government under the Equal Access to Justice Act. If the reports of non-compliance are true, it seems that DHS and their lawyers are “playing with fire” here.

Remember guys, this isn’t Immigration Court. Article III Judges have life tenure, and they don’t work for the President. He’s just another party to them.

PWS

01/29/17

Rosenberg, Schmidt Reunite For “Mastermind First 100 Days” Online Seminar On Tuesday, January 31, 2017!

My good friend and former BIA colleague, Hon. Lory Rosenberg writes:

“I’m proud to announce that my former BIA colleague, Immigration Judge Paul W. Schmidt (Ret.) will join us as a special guest for the very first meeting of IDEAS First 100 Days Mastermind, at 4PM ET next Tuesday, January 31st!

I’ve invited Judge Schmidt to freely share his thoughts and ideas with us, as well as to participate fully in our mastermind discussion.
As we dig through the existing labrynthine immigration statute – the one with the unfixed ’96 — and as we confront the ill-advised, anti-immigrant Executive Orders just signed by President Trump – the ones that abrogate our refugee protection obligations – l know Judge Schmidt’s wisdom and reflections will provide priceless inspiration and guidance.”

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

Thanks for the kind words, Lory! The feeling is mutual. For more information on the seminar, go on over to Lory’s Mastermind website at:

http://www.loryrosenberg.com/First100days

PWS

01/28/17

Optimists’ Corner: Human Dialogue Overcomes Political Divide At Busboys & Poets

https://www.washingtonpost.com/news/inspired-life/wp/2017/01/24/not-race-not-gender-just-american-these-white-men-left-their-black-waitress-an-uplifting-note-and-a-450-tip/?postshare=4291485513678958&tid=ss_fb&utm_term=.b959856dabfa

Colby Ikowitz writes in the Washington Post:

“But she said the men left her with so much more. Their words were a reminder not to make assumptions. And that so many Americans want unity, regardless of their politics, and to not be afraid to connect with someone as human beings, she said.

“This definitely reshaped my perspective. Republican, Democrat, liberal are all subcategories to what we are experiencing,” she said. “It instills a lot of hope.”

For White, he said he wanted to show her that they probably have more in common than it would appear.

“As I sat there I thought about the entire weekend and I thought I don’t know her, she doesn’t know me, but if most Americans have a preconceived perception about people then we’re never going to get better,” he said.”

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

This “upbeat” take on today’s politics was forwarded to me by my ever optimistic friend, neighbor, and fellow dog walker Professor Alberto Benítez from GW Law. Teacher, role model, and steadfast advocate for social justice, human dignity, and understanding, Professor Benítez and his Clinic Students have been saving lives while doing good in the Arlington Immigration Court for many years. Lots of his alums are out there “making a difference every day” in Government, private practice, the NGO community, and academia.

One of the many great things the Professor has taught his student-attorneys is who really makes our justice system work at the “retail level:” of course, it is the dedicated, hard working, professional court staff who can tell you more about what the practice of law is actually about than almost any judge, prosecutor, or academic. When I worked at Dane County Legal Services after my first year at U.W. Law, my supervising attorney immediately took me over to the courthouse and introduced me to the folks in the Clerk’s Office. He said “These are the people who are going to make you or break you as a lawyer, so treat them well and they’ll show you the ropes.” It’s a lesson I never forgot.

Another great thing about Professor Benítez is his “Wisconsin connection” through his wonderful wife Janice, a native of the famous Fox River Valley metropolis of Oshkosh (by gosh, there really is such a place)!

PWS

01/27/17

Another Installment In The Schmidt Making America Really Great Series: “Refugees And Due Process Make America Really Great” — Read My Speech From Last Night’s “Refugee Ball”

REFUGEES AND DUE PROCESS MAKE AMERICA REALLY GREAT

Remarks by Paul Wickham Schmidt,

Retired United States Immigration Judge

The Refugee Ball

Sixth & I Synagogue 600 I Street, N.W. Washington, DC 20001

Tuesday, January 17, 2017 from 5:00 to 9:00 PM

Good evening, everyone. I’m honored to be here. Lets have a big round of applause for Jason Dzubow and his staff for coming up with the idea and putting this together!

As you can probably tell, it was a battle getting into my “Jones Day Spring Prom Era Tux” tonight. As I walked out the door, my wife Cathy said: “Are you actually going to be able to breathe, let alone speak, in that thing?”

As a “regular” at the Arlington Immigration Court, Jason obviously is quite familiar with my habits. I noted that on the advance program he took the extreme precaution of not only putting me in a “10-minute slot” near the end of the program, but also adding in parentheses in big bold letters “10 minutes max.” So, I get the picture, Jason. I’m going to briefly address two things that make America great: refugees and due process.

I’m pleased to back in the old ‘hood, although it’s hard to recognize. For about twelve years in the 1970s and 1980s I worked in the General Counsel’s Office of the “Legacy INS” in the famous Chester Arthur Building – the only monument in Washington to our great 21^st President –— at 425 Eye St., NW, just down the street. And, one of my most memorable accomplishments during that time was being part of the “team” that helped the Refugee Act of 1980 become law. It was a chance to make a positive difference in America’s future, indeed in the world’s future, while coming into contact with some of the finest intellects in the business: David Martin, Alex Aleinikoff, Doris Meissner, the late Jerry Tinker, and the late Jack Perkins come immediately to mind. So, I have what you might call a “vested interest” in U.S. refugee and asylum system.

I worked with refugees and their cases almost every workday for more than 21 years during my tenure as a trial and appellate judge with the United States Immigration Courts. And, I’ll admit that on many of my “off days” the challenges, stories, human drama, triumph, and trauma of refugees and refugee law bounced around in my head, much to the dismay of my wonderful wife, Cathy.

Although I have the greatest respect and admiration for the inspiring life stories of refugees and their contributions to the United States, I have never, for even one second, wanted to be a refugee. Like all of the speakers tonight, I see refugees as a huge asset to our country. It says something about us as a nation that so many great people from all over the world want to make this their home and to contribute their talents, some of which were on display here tonight, to the greatness of America. So, to all of you out there who came as refugees or asylees, thank you for coming, for your service, and for your dedication to making our great country even greater.

The other topic I want to address briefly, that is near and dear to me personally, is the overriding importance of due process in our refugee and asylum system. Each of you who came as a refugee or asylee is here because an adjudicator at some level of our system carefully and fairly gave you a chance to state your claim, listened to and reviewed the support you provided for your claim, and made a favorable decision in your case.

For some of you, that decision was made by a DHS Refugee Officer or an Asylum Officer. Others of you had to rely on different levels of our system – a U.S. Immigration Judge, the Board of Immigration Appeals, or in some cases, a U.S. Court of Appeals to have your status granted. In all of these instances you received something very precious under our Constitution: due process of law.

Unfortunately, there currently is a “due process crisis” in our overloaded Immigration Court System. With over one-half million pending cases and waiting times of many years in some courts for final hearings to be held, our Immigration Court System is under intense pressure.

Sometimes, that results in approaches that generally have a favorable impact for individuals seeking protection. For example, grants of Temporary Protected Status and work authorization take many cases off the Immigration Court docket and legislation such as NACARA for Central Americans or HIRIFA for Haitians permanently resolves many cases favorably at the DHS without requiring a full-blown asylum hearing before an U.S. Immigration Judge.

But, when backlogs build up and enforcement pressures mount on our Government, less benign approaches and suggestions sometimes come to the fore. Adjudicators can be pressured to do counterproductive things like decide more cases in less time, limit evidence to shorten hearings, and make “blanket denials” based on supposed improvements in country conditions.

Other times, placing more individuals in civil immigration detention is looked at as a way of both expediting case processing and actively discouraging individuals from coming to the United States and making claims for refuge under our laws in the first place. Or, moving cases though the system so quickly that applicants can’t find pro bono lawyers to represent them is sometimes incorrectly viewed as an acceptable method for shortening adjudication times, thereby reducing backlogs.

Another method far too often used for discouraging asylum claims and inhibiting due process is placing asylum applicants in DHS Detention Centers, often privately operated, with “imbedded” Immigration Courts in obscure out of the way locations like Dilley, Texas and Lumpkin, Georgia where access to pro bono attorneys, family members, and other sources of support is severely limited or nonexistent.

When these things happen, due process suffers. So, while I’m always hoping for the best, it is critical for all of us in this room to zealously protect the due process rights of all migrants and insist on full due process being maintained, and, ideally, even enhanced. This includes both supporting individuals in the system by helping them obtain effective legal representation and, where appropriate, vigorously asserting the due process rights of refugees, asylum seekers, and other migrants in the Article III Federal Courts.

Only by insisting on due process for those already in the system will we be able to insure a fair and effective system for future refugees. And, welcoming and fairly treating future refugees is a key to making and keeping America great.

So, that’s my message: due process can’t be taken for granted! It must be nurtured, protected, expanded, and vigorously and proudly asserted! Thanks for listening, good luck, do great things, and due process forever!

(Rev. 01/18/17)

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